UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

F.D. MITCHELL, J.A. FISCHER, K.M. MCDONALD

Appellate Military Judges

UNITED STATES OF AMERICA

v.

EDWIN W. HINOJOS

CHIEF CRYPTOLOGIC TECHNICIAN INTERPRETIVE (E-7), 

U.S. NAVY

NMCCA 201300305

GENERAL COURT-MARTIAL

Sentence Adjudged: 7 March 2013.

Military Judge: LtCol Charles Hale, USMC.

Convening Authority: Commandant, Naval District Washington, 

Washington Navy Yard, Washington, DC.

Staff Judge Advocate's Recommendation: LCDR J.D. Pilling, 

JAGC, USN.

For Appellant: CAPT Tierney Carlos, JAGC, USN.

For Appellee: Maj David Roberts, USMC; Capt Matthew Harris, 

USMC.

27 January 2015

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OPINION OF THE COURT 

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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS 

PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

A general court-martial consisting of officer and enlisted 

members convicted the appellant, contrary to his pleas, of one 

specification of aggravated sexual assault of a child and one 

specification of abusive sexual contact of a child, in violation 

of Article 120, Uniform Code of Military Justice, 10 U.S.C. 
2

§ 920. The members sentenced the appellant to confinement for 

seven years and a dishonorable discharge. The convening 

authority approved the sentence as adjudged, and, except for the 

dishonorable discharge, ordered the sentence executed. 

The appellant raised eight assignments of error.1

 After 

careful consideration of the record of trial, the appellant's 

assignments of error, the pleadings of the parties and oral 

argument, we find merit in the appellant’s first assignment of 

error, and will take remedial action in our decretal paragraph.2 

Background

HC was a 14-year-old high school freshman and good friends 

with the appellant’s daughter, DH. HC slept over at the 

appellant’s house nearly every weekend during the spring of 

2011, including the weekend of 24 April 2011. Whenever HC spent 

 

1 (1) That the military judge erred when he allowed the Government’s DNA 

expert to testify that he received a buccal swab from the appellant when the 

appellant’s buccal swab was not admitted into evidence and there was no 

testimony that a buccal swab was ever obtained from the appellant. Likewise, 

the military judge erred when he admitted Prosecution Exhibit 2 into evidence 

over defense objection. 

(2) The military judge erred when he allowed HC to testify to inadmissible 

hearsay which suggested to the members that the appellant was sexually 

abusing his own daughter. 

(3) The military judge abused his discretion when he denied the defense 

challenge for cause against LT G without considering the liberal grant 

mandate and for not sua sponte challenging ENS K. 

(4) The evidence was factually and legally insufficient to sustain the 

appellant’s convictions. 

(5) The military judge abused his discretion when he provided contradictory 

and misleading answers to the members’ questions during sentencing and by 

failing to give a tailored spillover instruction.

(6) Trial defense counsel was ineffective. 

(7) The appellant is currently the subject of post-trial cruel and unusual 

punishment for failure to treat his alleged post-traumatic stress disorder. 

(8) The appellant was subjected to post-trial cruel and unusual punishment 

because he suffered hearing loss as a result of being denied protective gear. 

The appellant’s seventh and eighth assignments of error are raised pursuant 

to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).

2 Our corrective action renders assignments of error 2, 3, 5, and 6 moot. We 

have considered assignments of error 7 and 8 and find them to be without 

merit. United States v. Clifton, 35 M.J. 79 (C.M.A. 1992).
3

the night at the appellant’s house, she shared DH’s bed with 

her. On 24 April 2011, after watching a movie, the two girls 

went to bed around 2300. HC slept on her right side with her 

back to the bedroom door and her feet at the opposite end of the 

bed from DH’s head. She wore her own bra and underwear to bed, 

but borrowed a pair of DH’s pajama pants and shirt.

HC testified that in the middle of the night, she awoke to 

the feeling of a hand on the left side of her chest. She 

further testified that the individual then climbed onto the bed, 

put his hand down the front of her pants and underwear, and 

penetrated her vagina with his finger up to the point of his 

knuckle. Throughout this incident, HC never saw the 

individual’s face, however, she identified him as the appellant 

by the feeling of his “big belly” against her back, and the 

feeling of his thick, rough hands3 on her body. HC also 

testified that she heard the individual say “what” before he 

left DH’s room and recognized the appellant’s voice. According 

to HC, the appellant had also touched her inappropriately on 

three previous occasions when she slept over at his house. In 

the first incident, HC awoke to a hand on the right side of her 

chest; in the second, she awoke to fingers on the inner part of 

her legs, above her jeans; and in the third incident, she awoke 

to the feeling of fingers on her vagina, above her clothing. HC 

identified the appellant as the person who touched her in the 

first incident because she heard him say “beautiful.” HC 

reported the 24 April assault to her family, then later to the 

Naval Criminal Investigative Service (NCIS).

Additional facts necessary to resolve the assigned errors 

are included herein.

Legal and Factual Sufficiency

We review questions of legal and factual sufficiency de 

novo. United States v. Winckelmann, 70 M.J. 403, 406 (C.A.A.F. 

2011). We review the legal sufficiency of the evidence by 

determining “whether, considering the evidence in the light most 

favorable to the prosecution, any reasonable fact-finder could 

have found all the essential elements beyond a reasonable 

doubt.” United States v. Day, 66 M.J. 172, 173-74 (C.A.A.F. 

2008) (citing United States v. Turner, 25 M.J. 324, 324 (C.M.A. 

1987)). The test for factual sufficiency is whether “after 

weighing all the evidence in the record of trial, this court is 

 

3 HC had a prior dating relationship with SH, the appellant’s oldest son who 

also lived in the appellant’s household at the time of the alleged incidents. 

HC testified that SH’s hands were thin and bony and distinguished the hands 

that touched her as thick and rough. 
4

convinced of the appellant's guilt beyond a reasonable doubt.”

United States v. Rankin, 63 M.J. 552, 557 (N.M.Ct.Crim.App. 

2006) (citations omitted), aff'd, 64 M.J. 348 (C.A.A.F. 2007).

The term “reasonable doubt” does not mean that the evidence 

must be free of any conflict. Id. And when weighing the 

credibility of a witness, this court, like a fact-finder at 

trial, examines whether discrepancies in witness testimony 

resulted from an innocent mistake such as a lapse of memory or a 

deliberate lie. United States. v. Goode, 54 M.J. 836, 844 

(N.M.Ct.Crim.App 2001). Additionally, the members may "believe 

one part of a witness' testimony and disbelieve another." United 

States v. Harris, 8 M.J. 52, 59 (C.M.A. 1979).

Applying the above test to this case, we are convinced that 

the evidence was both legally and factually sufficient.

Expert Witness Testimony 

In his first assignment of error, the appellant asserts the

military judge abused his discretion by permitting the 

Government’s expert witness to testify that the DNA contained on 

a buccal swab matched the DNA found in the victim’s underwear, 

without the proper foundation to testify that the buccal swab 

was taken from the appellant. The appellant also argues the 

military judge erred in admitting Prosecution Exhibit 24 into 

evidence over defense objection. We agree. 

The Law

Decisions of a military judge to admit or exclude evidence 

are reviewed for abuse of discretion. United States v. 

Eslinger, 70 M.J. 193, 197 (C.A.A.F. 2011). A military judge 

abuses his discretion when the “findings of fact are clearly 

erroneous or his conclusions of law are incorrect.” United 

States v. Baker, 70 M.J. 283, 287 (C.A.A.F. 2011) (citation and 

internal quotation marks omitted). A military judge is 

responsible for serving as a “gatekeeper” in screening evidence 

for admission, specifically scientific evidence such as DNA 

results. General Electric Co. v. Joiner, 522 U.S. 136, 142 

(1997). Authentication is a condition precedent to 

admissibility, that is “satisfied by evidence sufficient to 

support a finding that the matter in question is what its 

proponent claims.” MILITARY RULE OF EVIDENCE 901(a), MANUAL FOR COURTSMARTIAL, UNITED STATES (2012 ed.). 

 

4 Prosecution Exhibit 2 was HC’s underwear and the relevant chain-of-custody 

documents. 
5

MIL. R. EVID. 702 allows the admission of expert opinion 

testimony if it will assist the trier of fact in understanding 

the evidence or to determine a fact in issue. Experts can offer 

their opinion or make an inference based on facts or data 

obtained by the expert at or before trial, so long as the facts 

or data are “of a type reasonably relied upon by experts in the 

particular field in forming opinions or inferences upon the 

subject . . . .” MIL. R. EVID. 703. The expert opinion is 

admissible even if the relied upon facts or data are not. Id. 

Discussion

At the trial, the Government called a DNA expert to discuss 

his work on the case. The expert discussed his laboratory’s 

chain-of-custody protocol for evidence and the tests he 

conducted in this particular sexual assault case. The expert 

was then asked whether there was a service member associated 

with the case, to which the expert provided the appellant’s 

name. The trial judge initially sustained trial defense 

counsel’s objection as to the witness’s identification of the 

appellant on hearsay and foundation grounds. Following that 

ruling, Government counsel established that the expert recorded 

his test findings and generated a report for this particular 

investigation. Government counsel again asked the expert 

whether there was a service member associated with the buccal 

swab submitted for testing, to which defense counsel objected as 

to lack of foundation. The objection this time was overruled, 

and the expert subsequently testified that he tested a buccal 

swab from the appellant and found a match between the 

appellant’s Y-STR5 DNA profile and HC’s underwear. Record at 

390-97. The buccal swab itself was never offered as evidence 

and there was no evidence presented to establish that this 

buccal swab was actually obtained from the appellant. 

The Government bears the burden of establishing adequate 

foundation for admission of evidence against an accused. United 

States v. Maxwell, 38 M.J. 148, 150 (C.M.A. 1993) (citing United 

States v. Gonzales, 37 M.J. 456 (C.M.A. 1993)) (additional 

citations omitted). Though MIL. R. EVID. 703 permits expert 

witnesses to offer an opinion or make an inference based on 

underlying facts that otherwise may be inadmissible, that 

testimony remains subject to fundamental evidentiary foundation 

requirements. The Government’s expert testified about the tests 

he conducted on a buccal swab purportedly belonging to the 

 

5 Y-STR DNA testing does not produce a DNA profile unique to an individual. 

This type of testing narrows DNA down to a male individual’s paternal line, 

which can then be tested for the probability of detecting that profile 

against a person randomly selected from the United States population.
6

appellant and offered the opinion that there was a DNA match 

between the DNA on that buccal swab and the victim’s underwear. 

He did so without the Government having laid any foundation 

before, during, or after the expert’s testimony to establish 

that the swab had actually been collected from the appellant. 

Authenticity must be established prior to admission of evidence, 

whether that evidence is in the form of testimony or physical 

evidence. Additionally, the proponent of that evidence must 

present evidence sufficient to support a finding that the 

evidence is what it purports to be. In the present case, that 

is, that the buccal swab was taken from the appellant. Absent 

that conditional authenticity requirement, the risk of prejudice 

and confusion of the finder of fact is too great to allow 

admission. 

In the appellant’s case, the Government failed to provide 

authenticity evidence for the buccal swab allegedly belonging to 

the appellant. The source and authenticity of the buccal swab 

was required before the expert could offer an opinion as to a 

DNA match involving that swab. Accordingly, we hold that the 

military judge, without such foundation evidence, abused his 

discretion in allowing the expert to testify that he tested the 

DNA found in HC’s underwear to the DNA from the buccal swab 

purportedly belonging to the appellant and that there was a 

match. 

Having found error in the admission of the expert 

testimony, we now assess for prejudice. “Whether an error, 

constitutional or otherwise, was harmless is a question of law 

that we review de novo.” United States v. McCollum, 58 M.J. 

323, 342 (C.A.A.F. 2003) (citations omitted). “A finding or 

sentence of court-martial may not be held incorrect on the 

ground of an error of law unless the error materially prejudices 

the substantial rights of the accused.” Art. 59(a), UCMJ. 

Because this case involves a nonconstitutional error, it is the 

Government’s burden to demonstrate that “the error did not have 

a substantial influence on the findings.” McCollum, 58 M.J. at 

342. 

We evaluate whether the erroneous admission of Government 

evidence is harmless through a four-part test that 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.” United States 

v. Berry, 61 M.J. 91, 98 (C.A.A.F. 2005). 

To prove its case, the Government called four witnesses: 

the alleged victim (HC), an NCIS Special Agent, a DNA expert, 
7

and the appellant’s son. Through HC’s testimony, the Government 

established that she slept at the appellant’s house on various 

occasions and that the appellant had touched private parts of 

her body while she was sleeping on four occasions. HC 

identified the appellant as the offender based on several 

characteristics – his “big belly”, “thick fingers”, and voice.6

 

The NCIS agent’s testimony was limited, only covering her 

attendance at HC’s sexual assault forensic examination and her 

collection of HC’s underwear at that examination. As previously 

discussed, the DNA expert offered his opinion of a match between 

the DNA found on HC’s underwear and the DNA found on the buccal 

swab he believed to be from the appellant. The Government also 

entered HC’s underwear as evidence during the expert’s direct 

examination. Finally, the appellant’s son described his 

previous dating relationship with HC7 and testified that he 

kissed her on the cheek while they dated, but otherwise never 

engaged in any sexual contact or act with HC, and did not come 

into contact with HC’s underwear that night or any other time. 

The defense case relied on creating reasonable doubt as to 

the identification of the appellant as the assailant through 

cross-examination of Government witnesses. Trial defense 

counsel attacked the lack of evidence brought forward to 

establish the appellant’s identity during her objections in the 

Government’s case in chief, her cross-examination of the 

Government’s DNA expert, and also in a RULE FOR COURT-MARTIAL 917, 

MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) motion. The 

defense also called a child forensic psychologist to provide 

expert testimony attacking the truth and accuracy of HC’s 

allegations. 

The third factor to consider in our prejudice analysis is 

the materiality of the evidence in question. Here, that is the 

Government expert’s testimony regarding a DNA match. The 

expert’s testimony established that DNA from the appellant’s 

paternal line was found on HC’s underwear and strongly supported 

HC’s testimony. The evidence essentially eliminated the 

possibility that a sexual assault did not occur and narrowed 

down the possible offenders to just two individuals. We find 

the materiality of this forensic evidence was significant as was 

certainly emphasized by the Government during closing argument. 

Record at 574-75. We reject the appellee’s claim that the 

appellant’s “conviction was assured even without the DNA 

 

6 HC testified that on two separate occasions, she heard the person who 

entered the room where she was sleeping say both “what” and “beautiful.” 

7 The alleged incidents occurred after HC and the appellant’s son broke up. 
8

evidence.” Government Brief of 9 Apr 2014 at 17. While it is 

possible that a reasonable fact-finder could have convicted the 

appellant without the DNA evidence, this situation involves 

scientific evidence admitted in error whose influence on the 

fact-finder by its nature would have been significant. Without 

the powerful DNA evidence lending support to CH’s identification 

of the appellant as her assailant, the members may well have 

concluded that there was a reasonable doubt as to the 

appellant’s guilt. 

The fourth factor in our prejudice analysis is the quality 

of the evidence in question. Here, as discussed above, the 

Government offered expert testimony referencing a tested 

evidence sample never admitted at trial. Through reference to 

that sample, the expert was allowed to testify that the 

appellant’s DNA matched DNA found on the victim’s underwear, 

thereby providing identification evidence. The form of DNA 

testing used here, Y-STR, is not as specific as autosomal 

testing, but even this lower-quality DNA test enabled the 

Government to convince the fact-finder of the appellant’s guilt 

beyond a reasonable doubt. 

The record of trial depicts a case in which forensic 

evidence served as significant proof that a crime occurred and 

identified the appellant as the perpetrator. The Government has 

not met its burden of demonstrating that judicial error in 

admitting expert testimony without the underlying foundation did 

not have “a substantial influence on the findings.” McCollum, 

58 M.J. at 342. Accordingly, the findings of guilty to the 

charge and two specifications are set aside. The record of 

trial is returned to the Judge Advocate General for remand to an 

appropriate convening authority with a rehearing authorized. 

For the Court

 

 

 

R.H. TROIDL

Clerk of Court