## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before COOK, GALLAGHER, and HAIGHT Appellate Military Judges

UNITED STATES, Appellee

v. Private E2 MATHEW J. WILLIAMSON United States Army, Appellant

ARMY 20100828

Headquarters, Fort Bliss Michael J. Hargis, Military Judge (arraignment) David H. Robertson, Military Judge (trial) Colonel Michael J. Benjam in, Staff Judge Advocate

For Appellant: Colonel Patric ia A. Ham, JA; Major Jaco b D. Bashore, JA; Captain Stephen J. Rueter, JA (on brief).

For Appellee: Majo r Amber J. Roach, JA; Major El len S. Jennings, JA; Captain Edward J. Whitford, JA (on brief).

1 October 2012

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SUMMARY DISPOSITION

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COOK, Senior Judge:

A panel composed of office r and enlisted members s itting as a ge neral courtmartial convicted appellant, contrary to his pleas, of false offici al statement and rape
in violation of Articles 107 and 120, Uniform Code of Milita ry Justice, 10 U.S.C. §§ 907, 920 (2006) [her einafter UCMJ]. The panel sentenced appe llant to a dishonorable discharge, confinement for tw o years, total forfei ture of all pay and allowances, and reduction to the grade of E-1. The convening au thority approved the adjudged sentence and credited appellant with five days of confinement credit.

This case is before this court for review under Ar ticle 66, UCMJ. Appellant
has raised the followi ng assignment of error:

WHETHER THE MILITARY JUDGE ERRED TO THE

SUBSTANTIAL PREJUDICE OF PRIVATE

WILLIAMSON BY ADMITTING OVER DEFENSEWILLIAMSON—ARMY 20100828

2 OBJECTION INADMISSIBLE HEARSAY EVIDENCE OF THE ALLEGED VICTIM, JR , UNDER MIL. R. EVID. 803(4).

LAW AND DISCUSSION

The rape victim in this case, JR, sought assistance at Sierra , a civilian medical facility located in El Paso, Texas, a few hours af ter she was sexually assaulted. Later that same morning, special agents from the Army’s Criminal Investigation Command transported JR to William Beaumont Army Medical Facility [hereinafter Beaumont] at Fort Bliss, Te xas. While at Beaumont, Ms. JH, a registered nurse,

conducted a sexual assault forensic exam on JR . As part of this exam, JR provided a
statement that Ms. JH transcribed. This statement was included in the Forensic Medical Report [hereinafter Report] Ms. JH created as a result of the exam. This

statement included events that transpir ed before, during, and af ter the assault.

At trial, the prosecution called Ms. JH as a witnes s and offered the Report into evidence. Appellant’s defense coun sel objected to the in troduction of this Report for multiple reasons, the releva nt one being that JR’s statement was inadmissible hearsay. The military judge ove rruled the objection, citing the hearsay exception found at Military Ru les of Evidence [hereinafter Mil. R. Evid.] 804(3) as his basis and admitted the Report ov er additional objections.

A military judge’s decision to admit evidence is reviewed for abuse of
discretion. United States v. Hollis , 57 M.J. 74, 79 (C.A .A.F. 2002) (citation omitted). A military judge’s factfindin g is reviewed under the clearly erroneous standard of review, while conclusi ons of law are re viewed de novo. Id

.

Because the military judge admitted the statement pursuant to Mil. R. Evid. 804(3), we review the milita ry judge’s application of the relevant two-part test. Id

. The first part of the test for admitting a statement under Mil. R. Evid. 804(3) requires the pro ponent of the offered evidence to establish that the statement was made for purposes of medica l diagnosis or treatment. Id. Second, th e proponent
must establish the declarant made the statement “with some expectation of receiving

medical benefit for the medi cal diagnosis or treatment th at is being sought.” Id. (quoting United States v. Edens , 31 M.J. 267, 269 (C.M.A. 1990)).

In overruling appellant’s ob jection and allowing the prosecution to enter the statement, the military judg e found that “it comes in und er the medical treatment exception because [JR] was told by Ms. [JH] that pa rt of the reason for the examination was treatment of any injuries she may have sustaine d.” Although “[t]he key factor in deciding if the second pr ong is met is ‘the stat e of mind or motive of the patient giving the information’” Id. (quoting United States v. Kelley , 45 M.J. 275, 279 (C.A.A.F. 1996), the military judge failed to make a fi nding of whether JRWILLIAMSON—ARMY 20100828

3 provided the statement to Ms . JH with the expectation of receiving a medical benefit. In addition, and as conceded by government appellate counsel, the record does not support a finding that the government, as the proponent, esta blished that JR
made the statement to Ms. JH with the ex pectation of receivin g a medical benefit. 1
Therefore, because the propon ent of the statement did not establish that JR made the statement to Ms. JH with some expectatio n of receiving a medi cal benefit, it was error for the military judge to admit it unde r Mil. R. Evid. 804( 3).

When a military judge abuses his discre tion in admi tting evidence , this court
must determine whether this error resulted in prejudice to appell ant. To evaluate prejudice, we use a four part test in weighing (1) the strength of the government’s case; (2) the strength of th e defense case; (3) the materiality of the evidence in question, and (4 ) the quality of the ev idence in question. United States v. Kerr , 51 M.J. 401, 405 (C.A.A.F. 1999) (citation omitted).

In regards to the first part of this test, th e government’s case was strong. JR and SS, JR’s friend who was present during th e rape, offered consistent testimony that Specialist (SPC) Archambeau rape d JR and that appellant’s actions of repeatedly grabbing JR’s fri end, SS, aided and abetted SPC Archambeau’s rape of JR. Appellant’s second statement to law enforcement pe rsonnel contained incriminating statements and was entered as evidence against him at trial. In this statement, appellant admitted to seeing JR struggling undern eath SPC Archambeau,
that he heard JR tell SPC Archambeau to stop, that he heard JR call for help, and that even though he conclu ded that JR was being se xually assaulted by SPC Archambeau, he chose to grab SS, who was attempting to stop the rape. In addition,

1 Although no one asked JR any specific questions concerning her motive in providing the statemen t to Ms. JH, during her testimony, th e trial counsel questioned JR about what happen ed at Beaumont:

TC: And what occurred wh ile you were at Beaumont?

JR: My rape kit, my ques tioning, another interview about everything that happened.

TC: . . . What is a rape kit?

JR: . . . that’s what they told me is ju st to show—find any DNA, any scarring that woul d have happened, I actually have to give a statement that goes into it, and I believe that was it that actually went into the box.WILLIAMSON—ARMY 20100828

4 DNA evidence supported finding that SPC Archambeau had sexual inte rcourse with

JR.

In contrast, when reviewing the second part of the test for prejudice, appellant’s case was weak. One defense theo ry pursued at trial was that JR engaged
in consensual sex with SPC Archambeau ba sed on JR’s flirtatious behavior on the night of the assault. A nother defense theory espoused was that appellant was confused by JR, SS, and SPC Archambeau yelling at the same time and did not realize that SPC Archambeau was rapi ng JR when he pulled SS off of SPC Archambeau. The defense attempted to support thes e theories through crossexamination and two de fense witnesses. The first witness called by defense, PFC RV, occupied a room near appellant’s room on the ni ght in question. Although he did not hear anything during th e time of the assault, PFC RV conceded that we was listening to music, talking to his fiancé, and may have been sl eeping during the
assault. The other witnes s called by the defense was SPC JB, who was offered to impeach JR’s testimony concer ning the first pla ce JR met appellant . Defense also

introduced th e videotape of appellant’s first statement to law enforcement. Although appellant denied that PFC Archambeau raped JR an d that JR ever said “no” or “stop” in this statement, appellant’ s second statement, as highlighted above,
contradicts this statement.

Finally, in regards to the materialit y and quality of th e evidence, JR’s statement in the Report was clearly material but cumulative with JR’s trial testimony. JR’s extensive testimony at trial included the matters found in the statement and appellant was given an opport unity to confront a nd cross-examine JR at trial concerning both her trial testimony and th e statement cont ained in the Report. In addition to being cumulative, th is statement (pages nine through twelve of a thirteen page exhibit which was only referenced wi th any specificity by defense counsel), appears of lit tle persuasive value when compar ed to JR’s tr ial testimony.
We therefore conclude that the erroneous admission of JR ’s statement to Ms. JH was harmless beyond a re asonable doubt.

CONCLUSION

On consideration of the entire record 2 and the assigned error, we find appellant’s arguments to be without merit. We have al so considered the matters

2 The military judge erred in applying an instruction th at was inconsistent with Article 120, UCMJ, with regard to the Specification of Charge II. However, under the facts of this case, we are satisfied that this error was harmless beyond a

reasonable dou bt. The military judge clearly instructed the members the burden rested solely on the government with re gard to the defense of consent and any

(continued . . .)WILLIAMSON—ARMY 20100828

5 personally raised by appellant pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), and find them to be without merit. We hold the findin gs of guilty and the sentence as approved by the conven ing authority correct in law and fact. Accordingly, the fi ndings of guilty and the sentence are AFFIRMED.

Judge GALLAGHER and J udge HAIGHT concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court

(. . . continued)
mistake of fact as to consent. United States v. Medina , 69 M.J. 462, 465 (C.A.A.F. 2011) (citing Martin v. Ohio , 480 U.S. 228, 234 (1987)). MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: