IN THE CASE OF 

UNITED STATES, Appellee 

v. 

Stevon J. TAYLOR, Fireman Apprentice 

U.S. Navy, Appellant 

No. 04-0588 

Crim. App. No. 200202294 

United States Court of Appeals for the Armed Forces

Argued March 8, 2005 

Decided June 2, 2005 

EFFRON, J., delivered the opinion of the Court, in which GIERKE, 

C.J., and CRAWFORD, BAKER, and ERDMANN, JJ., joined. 

Counsel

For Appellant: Lieutenant Brian L. Mizer, JAGC, USNR (argued). 

 

 

 

For Appellee: Lieutenant Craig A. Poulson, JAGC, USNR (argued); 

Commander Charles N. Purnell, JAGC, USN, Lieutenant Colonel 

William K. Leitzau, USMC, and Lieutenant Frank L. Gatto, 

JAGC, USNR (on brief). 

 

Military Judge: Thomas K. Leak 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION . 
United States v. Taylor, No. 04-0588/NA 

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Judge EFFRON delivered the opinion of the Court. 

At a special court-martial composed of a military judge 

sitting alone, Appellant was convicted, contrary to his plea, of 

desertion in violation of Article 85, Uniform Code of Military 

Justice (UCMJ), 10 U.S.C. § 885 (2000). Appellant was sentenced 

to a bad-conduct discharge, confinement for 150 days, and 

reduction to pay grade E-1. The convening authority approved 

the sentence as adjudged. The United States Navy-Marine Corps 

Court of Criminal Appeals affirmed the findings and sentence in 

an unpublished opinion. United States v. Taylor, No. NMCCA 

200202294 (N-M. Ct. Crim. App. Apr. 23, 2004). 

On Appellant’s petition, this Court granted review of the 

following issue: 

WHETHER, IN LIGHT OF THE SUPREME COURT’S 

RULING IN CRAWFORD v. WASHINGTON, 124 S. CT. 

1354 (2004), PROSECUTION EXHIBITS 2 AND 3 

CONSTITUTE TESTIMONIAL HEARSAY REQUIRING 

THAT THEIR DECLARANTS BE SUBJECT TO CROSSEXAMINATION AS REQUIRED BY THE SIXTH 

AMENDMENT TO THE U.S. CONSTITUTION. 

Additionally, we specified the following two issues: 

WHETHER, APART FROM THE CONFRONTATION ISSUE 

OF CRAWFORD v. WASHINGTON, 124 S. CT. 1354 

(2004), THE MILITARY JUDGE ABUSED HIS 

DISCRETION IN ADMITTING PROSECUTION EXHIBITS 

2, 3, AND 5 OVER DEFENSE OBJECTION. 

WHETHER THE EVIDENCE PRESENTED ON THE MERITS 

WAS LEGALLY SUFFICIENT TO PROVE BEYOND A 

REASONABLE DOUBT THAT APPELLANT WAS GUILTY 

OF DESERTION FROM HIS ORGANIZATION, THE NAVY 
United States v. Taylor, No. 04-0588/NA 

3

ABSENTEE COLLECTION AND INFORMATION CENTER, 

ON OR ABOUT 30 DECEMBER 1994, AND THAT THIS 

DESERTION WAS TERMINATED BY APPREHENSION ON 

OR ABOUT 20 OCTOBER 2001.

For the reasons stated below, we conclude that the military 

judge erred in admitting Prosecution Exhibits 2 and 3, and that 

the error was prejudicial. 

I. BACKGROUND 

 The specification charged that Appellant: 

on or about 30 December 1994, without 

authority and with intent to remain away 

therefrom permanently, absent[ed] himself 

from his organization, to wit: Navy 

Absentee Collection and Information Center, 

located at Great Lakes, Illinois, and did 

remain so absent in desertion until he was 

apprehended on or about 20 October 2001. 

 In the armed forces, each unit prepares a daily report, 

such as a morning report or a muster report, to account for the 

attendance of military personnel in that unit. In a desertion 

case in the Navy, the prosecution typically introduces a record 

known as a “page 6,” which documents an unauthorized absence in 

the servicemember’s personnel records. For reasons not apparent 

in the record of trial, the prosecution in the present case did 

not produce a muster report or the page 6 from Appellant’s 

personnel record. Instead, the prosecution relied on the 

information in two naval messages, Prosecution Exhibit 2 (P.E. 
United States v. Taylor, No. 04-0588/NA 

4

2) and Prosecution Exhibit 3 (P.E. 3) to prove the dates of 

Appellant’s absence and the elements of the offense. 

Documents such as P.E. 2 and P.E. 3 are hearsay when 

offered into evidence to prove the truth of a matter asserted in 

the text of the document. See Military Rule of Evidence 

(M.R.E.) 801(c). Although hearsay is generally inadmissible, 

see M.R.E. 802, the rules contain a number of exceptions under 

which hearsay statements may be introduced. See, e.g., M.R.E. 

803, 804. 

M.R.E. 803(8) creates several exceptions that permit the 

introduction of hearsay within certain records or reports from 

public offices or agencies, including public records that 

describe “matters observed pursuant to duty imposed by law as to 

which matters there was a duty to report.” M.R.E. 803(8)(B). 

The exception does not apply to matters observed by “police 

officers and other personnel acting in a law enforcement 

capacity.” Id. Nor does the exception apply to documents if 

the “sources of information or other circumstances indicate lack 

of trustworthiness.” M.R.E. 803(8); see also Edward J. 

Imwinkelried, Evidentiary Foundations § 10.06[2], at 415-16 (5th 

ed. 2002) (discussing the elements of the foundation for public 

records). 

Unlike its counterpart in the Federal Rules of Evidence, 

M.R.E. 803(8) provides a further exception for specific types of 
United States v. Taylor, No. 04-0588/NA 

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public records that are admissible even if they do not satisfy 

one of the categories specified by the rule. See United States 

v. Broadnax, 23 M.J. 389, 391 (C.M.A. 1987). This exception 

includes “morning reports and other personnel accountability 

documents” if “made by a person within the scope of the person’s 

official duties and those duties included a duty to know or to 

ascertain through appropriate and trustworthy channels of 

information the truth of the fact or event and to record such 

fact or event.” M.R.E. 803(8). Under this exception, a 

standard personnel accountability document such as a morning 

report is admissible if it meets the above criteria, even if the 

document records a matter observed by law enforcement personnel. 

The pertinent documents admitted in Appellant’s courtmartial were photocopies of the original records. M.R.E. 1005 

provides that the contents of an official record may be proven 

by a copy if the copy is (1) certified as correct or attested to 

in accordance with M.R.E. 902, or (2) testified to be correct by 

a witness who has compared it with the original. The rule 

indicates a clear preference for these two methods, but also 

allows other evidence of the contents of a record to be given if 

the Government exercises reasonable diligence but is unable to 

obtain a copy that complies with the above requirements. M.R.E. 

1005; see 2 Steven A. Saltzburg et al., Military Rules of 

Evidence Manual § 1005.02, at 10-17 (5th ed. 2003). 
United States v. Taylor, No. 04-0588/NA 

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II. DISCUSSION 

A. PROSECUTION EXHIBIT 2 

P.E. 2, one of the exhibits the Government sought to 

introduce against Appellant in this case, is a copy of a 

document identified by the Government’s foundation witness, 

Legalman First Class (LN1) Sharell A. Welch, as a declaration of 

desertion message. LN1 Welch, the military justice supervisor 

for the staff judge advocate’s office at Naval Air Station 

Pensacola, which handled the administrative processing regarding 

Appellant when he was returned to military control, stated that 

the Naval Military Personnel Manual requires a declaration of 

desertion message to be created when a member of the armed 

forces fails to report for duty. Bureau of Naval Personnel, 

Naval Military Personnel Manual (MILPERSMAN) Article 1600-060 

(Aug. 2002, updated May 3, 2005). In accordance with the format 

for declaration of desertion messages specified in the Naval 

Military Personnel Manual, the document indicates that Appellant 

was declared a deserter from the USS L. Y. Spear on September 

30, 1994. See MILPERSMAN 1600-060. There is, however, 

additional content at the bottom of the document that is not 

part of the declaration of desertion message, including a date 

stamp of September 26, 1995, and what appears to be an upsidedown and backward portion of a preprinted form. 
United States v. Taylor, No. 04-0588/NA 

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 At trial, defense counsel objected to P.E. 2 on numerous 

grounds, including relevancy, hearsay, improper foundation, and 

authenticity. The military judge overruled the objections and 

allowed P.E. 2 to be admitted into evidence. We review a 

military judge’s ruling on evidentiary matters for an abuse of 

discretion. United States v. McDonald, 59 M.J. 426, 430 

(C.A.A.F. 2004). 

 The Government contends that P.E. 2 was a personnel 

accountability document, admissible under the specific exception 

provided for such documents in M.R.E. 803(8). P.E. 2, however, 

is not a routine accountability document. In addition to the 

information concerning desertion, there is unreadable content on 

the document. The Government could not shed light upon this 

portion of the exhibit. In view of this unknown content on the 

document, indecipherable even to the party attempting to 

introduce it, P.E. 2 was not admissible as a personnel 

accountability document under M.R.E. 803(8). 

We next consider whether P.E. 2 was admissible under the 

M.R.E. 803(8)(B) hearsay exception for “matters observed 

pursuant to duty imposed by law as to which matters there was a 

duty to report.” This exception does not apply, however, if 

“the sources of information or other circumstances indicate lack 

of trustworthiness.” M.R.E. 803(8). When the Government is 

unable to explain the content of a record it is attempting to 
United States v. Taylor, No. 04-0588/NA 

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introduce, the document does not satisfy the principles of 

trustworthiness applicable to M.R.E. 803(8). See 5 Jack B. 

Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 

803.10[1] (Joseph M. McLaughlin ed., 2d ed. 2005). 

Even if P.E. 2 fell within a hearsay exception under M.R.E. 

803(8), it would not qualify as an admissible copy under M.R.E. 

1005. The prosecution acknowledged at trial that P.E. 2 was not 

certified or attested to, and the Government’s foundation 

witness, LN1 Welch, did not testify that she compared it with 

the original document. The Government asserts that M.R.E. 1005 

was satisfied despite these deficiencies because the Government 

presented other evidence of the contents of the record. The 

Government, however, could rely on such other evidence only by 

demonstrating that, through the exercise of reasonable 

diligence, it could not obtain a certified or attested copy or a 

copy identified as being correct by a witness who compared it to 

the original. See Saltzburg § 1005.02, at 10-17. In this case, 

there is no indication that the Government even attempted to 

authenticate P.E. 2 through one of the preferred methods, let 

alone that it used reasonable diligence. Because P.E. 2 did not 

meet a hearsay exception and did not qualify as an admissible 

copy, the military judge abused his discretion by admitting P.E. 

2 over defense counsel’s objections. 

 
United States v. Taylor, No. 04-0588/NA 

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B. PROSECUTION EXHIBIT 3 

P.E. 3, the other naval message introduced by the 

prosecution, is a copy of an e-mail sent from Naval Air Station 

Pensacola to numerous recipients. LN1 Welch identified the 

document as a declaration of return from desertion message, 

which she stated was required by the Naval Military Personnel 

Manual. See MILPERSMAN 1600-070 (Aug. 2002, updated Sept. 9, 

2004). The message indicates that Appellant deserted from the 

Navy Absentee Collection and Information Center on December 30, 

1994, that he was apprehended by the Longview Police Department 

on March 7, 2001, and that he was returned to military control 

on October 20, 2001. LN1 Welch testified that her office 

created P.E. 3 upon Appellant’s return to military control. 

At trial, defense counsel objected to P.E. 3 on the basis 

that it constituted “hearsay within hearsay,” noting that LN1 

Welch testified that the individual in her office who created 

P.E. 3 relied upon a movement authorization document and a DD 

553 arrest warrant in preparing the message. Although trial 

counsel acknowledged that the Government did not intend to admit 

the DD 553 arrest warrant into evidence, trial counsel 

maintained that the DD 553 arrest warrant was not inadmissible 

hearsay because it fell under the public records exception. The 

military judge admitted P.E. 3 into evidence, overruling defense 

counsel’s objections. 
United States v. Taylor, No. 04-0588/NA 

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Because the preparer of P.E. 3 obtained the information 

from other hearsay documents -- the DD 553 arrest warrant and 

the movement authorization document -- P.E. 3 was admissible 

only if those documents were admissible under a hearsay 

exception. M.R.E. 805. LN1 Welch testified that the arrest 

warrant was created by the Navy Absentee Collection Unit in 

Great Lakes, Illinois. The record indicates that the DD 553 

arrest warrant was issued in April 2000 -– more than five years 

after Appellant’s alleged desertion and more than a year and a 

half before his apprehension. The only foundation evidence 

elicited by the prosecution during trial was a statement by LN1 

Welch that DD 553 arrest warrants were maintained by the Navy 

and prepared in the regular course of business. 

Such information did not provide a sufficient basis for 

concluding that the DD 553 arrest warrant introduced in the 

present case was admissible under the M.R.E. 803(8)(B) hearsay 

exception. Arrest warrants based upon the observations of 

persons acting in a law enforcement capacity are not admissible 

under M.R.E. 803(8)(B). The record in this case does not 

provide a basis for concluding that the arrest warrant at issue 

here was not covered by M.R.E. 803(8)(B). 

To the extent that the last sentence of M.R.E. 803(8) 

permits admission of designated military documents, the DD 553 

at issue here did not meet the rule’s criteria for admissibility 
United States v. Taylor, No. 04-0588/NA 

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because the prosecution offered no evidence as to the identity 

or duties of the declarant of the DD 553. As a result, the 

record does not establish that the DD 553 was “made by a person 

within the scope of the person’s official duties and those 

duties included a duty to know or to ascertain through 

appropriate and trustworthy channels of information the truth of 

the fact or event and to record such fact or event.” M.R.E. 

803(8). The record of trial provides even less information 

regarding the other source for P.E. 3, the movement 

authorization document. The movement authorization document was 

not admitted into evidence and its contents are unknown, as are 

the circumstances surrounding its preparation and the duties of 

its unidentified declarant. Like the DD 553 arrest warrant, the 

movement authorization document does not satisfy any of the 

exceptions created by M.R.E 803(8). Because the declarant of 

P.E. 3 relied on inadmissible hearsay in creating the document, 

the military judge erred in admitting P.E. 3. 

C. PREJUDICE 

Because we hold that the military judge abused his 

discretion in admitting P.E. 2 and P.E. 3, we must now determine 

whether the error materially prejudiced the substantial rights 

of the accused. See Article 59(a), UCMJ, 10 U.S.C. § 859 

(2000). For a nonconstitutional error, “the Government must 
United States v. Taylor, No. 04-0588/NA 

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demonstrate that the error did not have a substantial influence 

on the findings.” United States v. McCollum, 58 M.J. 323, 342 

(C.A.A.F. 2003). When evaluating the harm from the erroneous 

admission of Government evidence, this Court weighs “(1) the 

strength of the Government’s case, (2) the strength of the 

defense case, (3) the materiality of the evidence in question, 

and (4) the quality of the evidence in question.” McDonald, 59 

M.J. at 430 (citing United States v. Kerr, 51 M.J. 401, 405 

(C.A.A.F. 1999)). 

In Appellant’s court-martial, the Government was required 

to prove the following elements of desertion terminated by 

apprehension: (1) Appellant absented himself from his 

organization; (2) the absence was without authority; (3) 

Appellant intended to remain away from his organization 

permanently; (4) Appellant remained absent until the date 

alleged; and (5) Appellant’s absence was terminated by 

apprehension. See Article 85, UCMJ, 10 U.S.C. § 885 (2000). 

Apart from P.E. 2 and P.E. 3, the Government’s evidence 

consists of Prosecution Exhibit 1 (P.E. 1), Prosecution Exhibit 

5 (P.E. 5), and the testimony of Police Officer Charles D. 

Ferrell. P.E. 1 is Appellant’s service contract, which does not 

establish any of the elements. P.E. 5 consists of a certificate 

of attestation and fourteen pages of attested copies of 

documents from the Gregg County Clerk’s Office in Texas. The 
United States v. Taylor, No. 04-0588/NA 

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documents show that during the period Appellant was allegedly 

absent, he was convicted three times and was subject to two sets 

of probation conditions, both of which were revoked. The 

military judge ruled that P.E. 5 was admissible for the limited 

purpose of showing Appellant’s intent to remain away, only one 

of the five elements. 

Police Officer Ferrell of the Longview Police Department 

testified about his apprehension of Appellant in Longview, 

Texas, on March 7, 2001. Although Officer Ferrell’s testimony 

establishes that Appellant’s absence was terminated by 

apprehension, it is not sufficient to establish that Appellant 

absented himself from his organization without authority. 

Consequently, without P.E. 2 and P.E. 3, the Government could 

not establish all of the elements of the charge against 

Appellant. Because the improperly admitted evidence had a 

substantial influence on the findings, we will set aside the 

findings and authorize a rehearing. See Lockhart v. Nelson, 488 

U.S. 33 (1988). In view of our resolution of this case on 

nonconstitutional grounds, we need not address the granted issue 

concerning constitutional questions under Crawford v. 

Washington, 541 U.S. 36 (2004). 
United States v. Taylor, No. 04-0588/NA 

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III. CONCLUSION 

 

 The military judge erred in admitting P.E. 2 and P.E. 3. 

The decision of the United States Navy-Marine Corps Court of 

Criminal Appeals affirming the finding of guilty and the 

sentence is reversed. The finding of guilty and the sentence 

are set aside. The record of trial is returned to the Judge 

Advocate General of the Navy, and a rehearing is authorized.