## U NITED 

## S TATES 

## N AVY



## – M ARINE 

## C ORPS 

## C OURT OF 

## C RIMINAL 

## A PPEALS

_________________________ No. 201600221

_________________________ 

### UNITED STATES OF AMERICA

Appellee

v. 

### LANORRIS D. DANIELS Hospital Corpsman Second Class (E

- 5), U.S. Navy Appellant

_________________

________ Appeal from the United States Navy

- Marine Corps Trial Judiciary

Military Judge: Captain Charles N. Purnell, JAGC, USN

. Convening Authority: Commander, Navy Region Mid

- Atlantic
, Norfolk, VA. Staff Judge Advocate's Recommendation: Captain Andrew R. House, JAGC, USN

. For Appellant: Lieutenant Commander Derek C. Hampton, JAGC, USN

. For Appellee: Lieutenant Commander Justin C. Henderson, JAGC,

USN ; Lieutenant Robert J. Miller , JAGC, USN.

_________________________ Decided 13 April 2017

________________

_________ Before G LASER

- A LLEN , M ARKS , AND F ULTON , Appellate Military Judges

_________________________ This opinion does not serve as binding precedent, but may be cited as persuasive authority under NMCCA Rule of Practice and Procedure 18.2.

_____________ ____________ GLASER

- ALLEN, C hief J udge :
A military judge sitting as a general court

- martial convicted the appellant, pursuant to his plea s, of aggravated sexual assault o f a child, indecent liberties with a child, a nd sodomy, in violation of Articles 120 a ndUnited States v. Dani e ls , No. 201600221

2 125
, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920 and 925

. The military judge sent enced the appellant to 118 months ’ confinement
, reduction to pay grade E

- 1, and a dishonorable discharge. The convening authority approved the sentence and, pursuant to a pretrial agreement (PTA), suspended all confinement in excess of four years

. In two assignments of error (AOE) , the appellant asserts the military judge erred : ( 1) by admitting portions of the victim’s unsworn statement and (2) by admittin g the same allegedly improper victim evidence as rebuttal evidence before the appellant had presented any matters in sentencing. After carefully considering the pleadings and the record of trial, we find no error materially prejudicial to the substantial r ights of the appellant
, and affirm the findings and sentence. Arts. 59(a) and 66(c), UCMJ.

I. B ACKGROUND

I n May 2008
, 13

- year

- old RR moved to live with the appellant and his wife
, escaping physically abusive and traumatic living conditions in Chicago

. RR w as the appellant’s wife’s younger sister . A few months after RR’s arrival in her new home
, the appella nt began having sex with her

. O ver the next five

years , the appellant regularly had oral and vaginal sexual intercourse with RR
, often initiating sex in h er bedroom before he went to work in the morning. When the appellant was deployed, t his inappropriate conduct continued virt ually , including his request that RR email him a sexually explicit video of her masturbating.

I n 2013, RR told her mother about the ongoing sexual conduct. RR’s mother confronted the appellant’s wife
, who soon forced RR to leave the appellant’ s family home. RR was hurt and surprised by her sister’s reaction
, which not only cost her a home but also valued relationship s with her sister, niece
, and nephe w

. At trial during the presentencing phase
, RR provided a verbal unsworn
statement , pursuant to R ULE FOR C OURT

- M ARTIAL (R.C.M.) 1001A, M ANUAL
FOR C OURTS

- M ARTIAL , U NITED S TATES (2016 ed.) that reiterated part of her previously provide d, written statement :

I took care of my niece and nephew since they were little. I love them like they are my children. My sister doesn’t [let] me see them anymore. I’ve lost my sister, my niece and my nephew because of you, Lanorris. You took advantage o f the terrible situation I was in. I only had two choices, go back to Chicago or ignore what you were doing to me. I will live with what you’ve done to me for the rest of my life. For the last three years, you’ve lied and told everyone that this didn’t hap pen. And now you get to pretend to be a man andUnited States v. Dani e ls , No. 201600221

3 take responsibility. You would never have taken responsibility. You were ready to let people call me a liar and be ashamed [sic] upon for the rest of my life. I was labeled as a disgrace. You taught me how to read at the same time you molested me. I hate you, but I’m forced to think about you every day. I’m still confused every day how to think about what has happened to me. But I’m [a] survivor. I’m empowered by the horrors of what I have to go through every day. But I’m going to get through this. 1 Trial defense counsel objected to those portions of the statement that asserted that the appellant had not taken responsibility for his acts. The military judge overruled the objection.

II. D ISCUSSION
A. Admissibility of the v ictim’s u nsworn s tatement The appellant alleges the military judge erred in admitting that portion of the vict i m ’s written and verbal unsworn statement s related to the appellant’s “manhood and accusing [the] Appellant of not having taken responsibi lity for his actions” as sentencing evidence because it neither met the definition of victim impact
, as defined in R.C.M. 1001A
, , nor was it directly relate d to his offenses
, as required for aggravation evidence under R.C.M. 1001(b)(4)

. 2

We review a mili tary judge’s admission or exclusion of evidence, including sentencing evidence, for an abuse of discretion. 3 United States v. Stephens , 67 M

. J

. 233, 235 (C.A.A.F. 2009) (citing United States v. Manns , 54 M.J. 164, 166 (C.A.A.F. 2000))

. The military judge’s findings of fact receive deference and will only be overturned if they are clearly erroneous; we review conclusions of law de novo

. United States v. Owens , 51 M.J. 204, 209 (C.A.A.F. 1999) (citing United States v. Reister , 44 M.J. 409, 413 ( C.A.A.F. 1996) )

. Article 6b, UCMJ, delineates the rights of victims and mirrors those afforded under the Crime Victims ’ Rights Act (CVRA) , 18 U.S.C § 3771

. As noted by our sister court in United States v. Wareham

, consistent with the intent of Congress, federal courts have “ interpreted these rights to include giving statements at sentencing hearings without being placed under oath. ”

1 Prosecution Exhibit 4 at 2; Record at 80

- 81.

2 Appellant’s Brief of 18 Aug 2016 at 4

.

3 A lthough the appellee notes that the standard may properly be “plain error
, ” given the vague ness of the trial defense counsel’s ( TDC ) trial objection s and the more specific objection raised on appeal, Appellee’s Brief of 26 Sep 2016 at 15

- 17, we need not address this issue
, as the appellant’s argument fails under either standard.United States v. Dani e ls , No. 201600221

4 No. ACM 38820, 2016 CCA LEXIS 609, at *14 unpublished op., (A.F. Ct. Crim. App. 20 Oct 2016). 4

R.C.M. 1001A 5 implements a victim’s right t o be reasonably heard , giving a victim the right to make a sworn or unsworn statement during sentencing in a non

- capital case. R.C.M. 1001A(b)(4)(B). The President has broadly defined the scope of this victim impact testimony as includ ing “any financial,

s ocial, psychological, or medical impact on the victim directly relating to or arising from the offense of which the accused has been found guilty. ” R.C.M. 1001A(b)(2).

T he government may present evidence of “ aggravating circumstances directly relating to or resulting from the offenses of which the accused has been found guilty
, ” to include “social, psychological, and medical impact on or cost to any person or entity who was the victim of an offense committed by the accused [

. ] ” R.C.M. 1001(b)(4). “The phras e ‘directly relating to or resulting from the offenses’ imposes a ‘higher standard’ than ‘mere relevance.’” United States v. Rust , 41 M.J. 472, 478 (C.A.A.F. 1995) (quoting United States v. Gordon , 31 M.J. 30, 36 (C

. M

. A

. 1990)).

A s noted by the appellee
, t he language in R.C.M. 1001A
, “directly relating
to or arising from the offense
, ” makes victim impact evidence arguably broader and more encompassing than government aggravation evidence, defined as “directly related to or resulting from
, ” under R.C.M. 1001 (b)(4) (emphasis added)

. And u nlike government sentencing evidence, R.C.M. 1001A evidence is not considered aggravation evidence
, and the victim is not considered a witness for purposes of Article 42(b) , UCMJ . R.C.M. 1001A(a). The evidence presented under R.C.M. 1001A is considered either crime victim impact or mitigation evidence and is premised solely upon a victim’s right to be reasonably heard. R.C.M. 1001A(a), (b), and (c). Finally, this right “is

4 See 150 C ONG

. R EC

. S10911 (Oct ober 9, 2004) (statement of Sen. Jon Kyl) (“When a victim invokes this right during plea and sentencing proceedings, it is intended that he or she be allowed to provide all three types of victim impact: the character of the victim, the impa ct of the crime on the victim, the victim’s family and the community, and sentencing recommendations.”). This right was intended essentially as “victim allocution” under the CVRA. United States v. Degenhardt , 405 F. Supp. 2d 1341, 1348 (D. Utah 2005).

See also United States v. Rowe , No. ACM 38880, 2017 CCA LEXIS 89, at *6

- 9 , unpublished op. (A.F. Ct. Crim. App. 8 Feb 2017); United States v. Parr , No. ACM 38878, 2017 CCA LEXIS 86
, at *3

- 9, unpublished op. (A.F. Ct. Crim. App. 7 Feb 2017).

5 As amended by Exec. Order 13,696, 80 Fed. Reg. 35,783, 35,807

- 08 (Jun. 17, 2015).United States v. Dani e ls , No. 201600221

5 independent of whether the victim testified during find ings or is called to testify under R.C.M. 1001.” R.C.M. 1001A(a).
The appellant argue s that the military judge erred by admitting the victim ’s unsworn statement because it did not meet the definition of “ victim impact ” under R.C.M. 1001A and therefore w as improper sentencing evidence. He also argues that the admissibility analysis should focus on the standards set out in R.C.M. 1001(b)(4) for aggravation evidence because “ [ a ] victim’s unsworn statement during the presentencing phase of the court

martial is, for all intents and purposes, evidence in aggravation.” 6 We disagree. The appellant pleaded guilty to aggravated sexual assault , indecent liberties, and sodomy of RR
, whose statement was admitted over the appellant’s objection in aggravation and as cr ime victim evidence under R.C.M. 1001A

. 7 In admitting the victim’s written and verbal unsworn
statement s , the military judge ruled: And I will note, for the record, that I’m considering this an unsworn statement and not as a sworn statement and will differ entiate accordingly. But this statement, I find, falls within the meaning of [R.C.M. 1001A ] , has properly been provided to the defense and the court prior to the victim making her unsworn statement. I think she has a right under Article 6(b) to make an uns worn vice a sworn statement and if that’s her election, I’m going to consider this evidence. But I can assure you, that I can parse out what is some, a little bit of information, about the victim to place these offenses in context, and what’s aggravation t hat directly arises out of this offense. 8

Th is evidence was both directly related to the offenses and presented victim psychological impact arising from the offenses of which the appellant was found guilty. Consequently, we conclude the victim impact evid ence was directly related to the appellant’s crime s and properly subject to RR’s right to be reasonably heard

— thus, it was admissible under both R.C.M. 1001(b)(4)

6 A ppellant’s Brief at 6.

7 The TDC objected vaguely at trial, arguing that RR’s unsworn statement was “
not related to the accused” and “ [ t ] hen the last paragraph, it makes reference to him not taking responsibility, things like that. He’s here pleading guilty. He’s taken responsibility.” Record at 67.

8 Id. at 70.United States v. Dani e ls , No. 201600221

6 as prosecution aggravation evidence and under R.C.M. 1001A (b)(1) and (2) as crime victim impa ct evidence

. 9

As noted above, evidence admitted under R.C.M. 1001A is not considered aggravation evidence, but rather crime victim impact or mitigation evidence, and is premised solely upon a victim’s right to be reasonably heard

. Here t he evidence highli ghted the psychological trauma RR went through as she dealt with removal from her sister’s home and family connection, as well as the painful skepticism with which her family viewed the allegations given the appellant’s initial denials. See R.C.M. 1001(b)( 4) and R.C.M. 1001A(b)(2) (stating that both aggravation evidence and the right to be reasonably heard include evidence of psychological impact on the victim).

B. Improper rebuttal evidence

In his second AOE , the appellant contends the military judge proc edurally erred by allowing RR’s testimony as rebuttal evidence before the appellant had presented any matters in presentencing
, and that by doing so, he was essentially compelled to provide evidence because the ruling anticipated his
unsworn statement

. 10 We disagree. The judge ruled in relevant part: As to your last objection with respect to your client having taken responsibility, I’m sure you’re going to provide evidence of that in the defense case and you are free to argue that. I think this is perhaps a bit anticipatory, but I believe it’s going to likely be appropriate rebuttal and present this from the victim’s point of view. And rather than have the victim come up and testify twice, in the interest of judicial economy and efficiency and considering th e fact that, I think this provides some information about a counter [] point of view, I’m going to admit that. 11

9 As noted by the appellee, p ursuant to paragraph 8(d) of the PTA, the appellant waived any right to object to aggravation ev idence or unsworn victim testimony under R.C.M. 1001(b)(4). Though we resolve the case on other grounds , we note the waiver’s key relevance to an R.C.M. 1001(b)(4) admissibility analysis involving unsworn aggravation evidence.

10 This claim of improper rebu ttal argument and supposed resulting compulsion to testify is raised for the first time on appeal. This argument is misleading because the appellant ’s unsworn statement did not challenge RR’s accusations regarding his prior denials of the sexual misconduct

.

11 Record at 70.United States v. Dani e ls , No. 201600221

7 R.C.M. 1001A delinates not only the substance of victims’ statements but also how they exercise their right s procedurally at court s

- martial

. A vi ctim’s right to be reasonably heard is “ independent of whether the victim testified during findings or is called to testify under R.C.M. 1001. ” R.C.M. 1001A(a). Indeed, R.C.M. 1001 A (a) explains that when a victim is exercising “the right to be reasonably h eard, the victim shall be called by the court

- martial ” (emphasis added). Additionally, R.C.M. 1001A(e) notes a victim’s “ unsworn statement may be oral, written, or both [
, ] ” requires that it be presented

“ [ a ] fter the announcement of findings

, ” and permits t he TC and TDC to “ rebut any statements of fact s therein

. ” ( Emphasis added)

. Thus, R.C.M. 1001A(e)(1) specifically permit ted RR to present her

unsworn statement after findings and did not require the statement to be delayed until after the defense’s sent encing case. Notably, R.C.M. 1001A(e) specifically permits the prosecution or defense to rebut any statements of fact in the victim’s unsworn statement. Similarly, the military judge was well within his discretion, in the “interest of judicial economy and efficiency,” 12 to allow RR to speak about the psychological impact of both the appellant’s prior denials and ultimate admission of guilt once and prior to the defense case

. See R.C.M. 801 (a)(3)
, Discussion (noting that the military judge may determine “when , and in what order

. . . witnesses may testify,” and “should prevent unneccesary waste of time and promote the ascertainment of truth”). Here, despite the appellant’s contention, RR was not preemptively rebutting the appellant’s unsworn statement, but si mply arguing the weight his plea s should be given in light of his previous denials and the significant impact they had upon her. Given the circumstances, we find it unlikely that the military judge was improperly swayed by the timing of RR’s unsworn
statem ent s

— and we find it unlikely that he would have been
, regardless of whether it was provided all at once
, as it was here
, or provided piecemeal through an initial statement and later rebuttal statement

. Accordingly, we find the military judge did not abuse his discretion in allowing the victim to address the court once instead of requiring an initial unsworn statement followed by a later victim rebuttal

. Given the intent of R.C.M. 1001A, if the victim desires to be reasonably heard after findings, the milita ry judge should decide
, with the parties’ input
, when that best f

its into the sentencing phase. We suggest t he military judge make the record clear that when a victim is heard pursuant to R.C.M. 1001A
, the court, rather than one of the parties, calls the v ictim . Likewise, calling the victim first
, before the government or defense begins presentencing
, may often be a best practice . Procedurally, this keeps the record clear and easily

12 Id

.United States v. Dani e ls , No. 201600221

8 provides for appropriate rebuttal from the government or defense as contemp lated in R.C.M. 1001A(e). Finally, military judges should also consider how to best mark and handle evidence admitted through R.C.M. 1001A. In most cases, a crime victim provides impact evidence under the rule via an unsworn verbal statement after being c alled by the court. Recognizing there is no specific gui dance in R.C.M. 1001A, when a victim provides an unsworn written statement , we suggest handling it the same way as a stipulation of expected testimony

— marked as an appellate exhibit and presented in court, but excluded from the deliberation room. 13

III. C ONCLUSION The findings and sentence are affirmed.

S enior J udge MARKS and J udge FULTON concur.

For the Court

R.H. TROIDL Clerk of Court

13 However, unlike a stipulation of expected testimony, the written statement would be read aloud to the members by the victim, his or her counsel, or the court instead of by one of the parties.