United States v. Specialist DANIEL D. RUDE

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
LIND, KRAUSS, and PENLAND
Appellate Military Judges

UNITED STATES, Appellee
v.
Specialist DANIEL D. RUDE
United States Army, Appellant

ARMY 20120139

Headquarters, Fort Bliss
Karen W. Riddle, Military Judge
Colonel Francis P. King, Staff Judge Advocate

For Appellant: William E. Cassara, Esquire (argued); Captain Brian D. Andes, JA;
William E. Cassara, Esquire (on brief and on reply brief).

For Appellee: Captain Benjamin W. Hogan, JA (argued); Colonel John P. Carrell,
JA; Lieutenant Colonel James L. Varley, JA; Major Steven J. Collins, JA; Captain
Benjamin W. Hogan, JA (on brief).

26 February 2015

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MEMORANDUM OPINION
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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

KRAUSS, Judge:

An officer panel, sitting as a general court-martial, convicted appellant
contrary to his pleas, of rape by force and wrongful sexual contact in violation of
Article 120, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. § 920
(2006 & Supp. III 2010). 1 The panel sentenced appellant to a dishonorable
discharge, ten years confinement, forfeiture of all pay and allowances, and reduction

1
Appellant was acquitted of conspiring with a Mr. JP to commit rape. Alternatively
charged lesser-included offenses of aggravated sexual assault by causing bodily
harm and assault consummated by a battery were subsequently dismissed.
RUDE—ARMY 20120139

to the grade of E-1. The convening authority approved only a finding of guilty of
aggravated sexual assault by causing bodily harm and only so much of the sentence
as provided for a bad-conduct discharge and confinement for four years. Appellant
was credited with one day against the sentence to confinement.

This case is before the court for review under Article 66, UCMJ. Appellant
assigns five errors complaining that: (1) the military judge erred by failing to apply
safeguards to the consideration of propensity evidence by giving an erroneous
spillover instruction and by failing to give an instruction on the proper use of
propensity evidence; (2) the judge erred by denying a defense motion to compel an
expert consultant; (3) the judge erred by permitting a sexual assault nurse
examination expert to offer “credibility quantification” evidence ; (4) the judge erred
by admitting certain hearsay statements; and (5) the evidence is factually
insufficient to support a finding of guilty of aggravated sexual assault by causing
bodily harm.

FACTS & PROCEDURAL BACKGROUND

Appellant was convicted of sexually assaulting two different women on the
same night and in the same house during the course of a college party at his friend
JP’s house. Each woman has the same initials, SB. The court -martial convicted
appellant of raping SB1 by force and committing an act of wrongful sexual contact
upon SB2. The convening authority disapproved the finding of rape, approving a
lesser-included offense of aggravated sexual assault by bodily harm, and
disapproved the finding of wrongful sexual contact. Though the convening authority
disapproved the latter finding of guilty, the facts associated with that offense are
relevant to our review of the outstanding conviction.

The wrongful sexual contact of SB2 occurred before the rape of SB1.
Anywhere from 20-50 college-age men and women attended the party at JP’s house.
There was much drinking and convivial behavior. During the party, SB2 and another
man repaired to a bedroom where they lay down together on a bed under the covers.
Appellant and JP entered that room and engaged the two in small talk. Appellant lay
down next to SB2, and, without any invitation or expectation on the part of SB2,
stuck his hand down her pants and touched her vagina. SB2 demurred. Appellant
removed his hand and ceased any further efforts with SB2. Appellant and JP
thereafter left the room.

SB1 went to the party with a few friends. She was acquainted with JP but did
not know the appellant. SB1 drank throughout the party and became drunk. She
grew weary and, at some point, very early in the morning, found a place to sleep on
the floor of a bedroom. Sometime later, SB1 was roused from her sleep by a man,
and, in what she essentially described as a haze, was led to another room by her
wrists where, without her consent, this man removed her clothes and commenced a

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sexual assault against her. She testified that she said no, but, because she was
enfeebled by drink and sleep or for reasons she could not explain, was unable to
effectively resist the assault. Another man entered the room not long after the initial
assault began. Though the room was dark, there was sufficient light for SB1 to
recognize JP as her initial assailant.

The second man then joined JP in a continuing sexual assault upon SB1. SB1
resisted more forcibly. She repeatedly said no and physically resisted to the extent
she was capable. SB1 further testified that both men took turns raping her and
holding her arms above her head. She testified that though she persistently
struggled to free herself from their grasp, she just did not have the strength to
overcome the physical strength used by the two men to hold her down and rape her.
Ultimately, after each repeatedly took turns raping SB1 while the other pinned her
arms down above her head, and as one of the men attempted to shove his penis in her
mouth as the other performed sexual intercourse, she succeeded in freeing one of her
arms, elbowed the man attempting sodomy, knocked him over and effectively
interrupted the continuing assault that also then effectively brought the assault to a
close. Recoiling from the men, she wrapped herself in a blanket on the bed. JP
apologized and the two men left the room. SB1 then fell asleep for a short while.

After the event, JP and appellant celebrated their sexual encounter with SB1
with a fist bump.

When she awoke she immediately found one of her friends who had also spent
the night, declared that she had been raped, and demanded that they leave
immediately. Her friend described SB1 as terribly distraught. Another friend came
to pick up both of the women and drove them back to her house along with a third
friend. SB1 then reported the rape to her parents.

Testimony also established that that morning JP and appellant discussed their
sexual encounter with SB1 with others present in the house.

SB1 agreed to undergo a sexual assault examinat ion, but she elected not to
pursue a formal complaint with the police. About a month later , she changed her
mind and she accused JP and a second man, who she could not identify, of raping her
as described above.

The sexual assault examination revealed minor injuries to her vagina and a
bruise on her thigh. DNA swabs were taken from her vagina. DNA swabs were
taken from JP and the appellant. Government DNA testing revealed the presence of
appellant’s DNA in SB1’s vagina but found no trace of JP’s DNA.

The government planned to perfect its proof that appellant was the second
assailant by calling DNA experts to establish that he committed the s exual act

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alleged. The defense, therefore, requested its own DNA expert to assist defense
counsel’s ability to interpret the government’s evidence and choose between
presentation of a consent defense and presentation of a defense based on attacking
the reliability of the DNA testing. After hearing argument from both parties on the
matter, the judge stated: “The court will take the matter under advisement and issue
a ruling in due course, again prior to--prior to the start of trial.”

Eleven days after the hearing on his request for DNA expert assistance,
appellant stipulated, as a matter of fact, that the DNA samples obtained from him
“were properly collected, transported, and safeguarded in full compliance with all
applicable standard operating procedures before and during any testing at the Of fice
of the Attorney General Crime Laboratory Division, Bismarck, North Dakota [,]” and
that, “[i]t was undisputed . . . that these items arrived at and were tested at [the same
laboratory] while in the same condition as when they were seized . . . .”

Approximately three weeks later, on the first day of trial, defense counsel
made the following remarks in his opening statement:

Specialist Daniel Rude had sex with [SB1] that night.
We’re not going to deny it. We’re not going to hide from
it. We’re going to embrace it. They’re going to call
people in here to show you that DNA matches up. I’m
telling you right now: The sex was consensual. We’re not
going to object to the DNA analysis. We’re not going to
try to show that it could’ve been somebody else’s DNA.
There was consensual sex that night. Write it down. We
will not object.

In the government’s opening statement, trial counsel referred to appellant as
“a predator . . . lurking on campus” and that he and JP were in search of prey during
the course of the party.

As the government’s case in chief proceed ed, and in addition to the evidence
elicited and described above, the judge accepted, over defense objection, the nurse
who examined SB1 as an expert on the subject of sexual assault nurse examination.
The nurse testified that the injuries she observed on SB1’s body were consistent with
SB1’s complaint of sexual assault. Later, the military judge, without objection,
conveyed a question from a panel member as follows: “[I]s . . . the vaginal and
cervical bruising that you noted-- is that consistent with rape?” The witness replied,
again without any objection: “It could be consistent with rape. There has been a
study within the last 10 years that would indicate that that type of bruising is five to
eight times more likely to occur with nonconsensual sex than consensual sex.”

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The day after the examination, SB1 discovered additional bruises on her chest
and left elbow that she attributed to the sexual assault. Over a defense hearsay
objection, the judge permitted the examining nurse to relate that SB1’s mother
contacted her after the exam and “indicated that [SB1] had had some additional
bruising present and was more sore and asked if she should come back in.” The
nurse had advised SB1 that further bruising associated with the reported assault
might appear later. In light of this, additional photographs were taken documenting
these bruises.

Each of SB1’s friends, described above, testified that they had known SB1
since early childhood, more than 10 years, that they were all close friends and had
remained close over all of those years. Each testified that they had never seen SB1
so upset, distraught, and scared. SB1 repeated to each that she had been raped.
Each also testified that in her respective opinion SB1 was truthful and that she
enjoyed a reputation for truthfulness in the community.

The government also produced the DNA evidence and thro ugh the testimony
of its expert established that appellant’s DNA was found in SB1’s vagina while JP’s
DNA was not. In cross-examination, the defense established that if a man were
wearing a condom during sexual intercourse, he may leave no trace of his DNA
inside a woman’s body.

Appellant called JP as a witness to testify in his defense case on findings. JP
testified in no uncertain terms that he and appellant engaged in consensual sexual
intercourse with SB1 the night alleged. Defense counsel also elicited from JP that
he wore a condom during the sexual encounter.

Prior to closing arguments, and during a hearing outside of the presence of the
members on the subject of instructions, government counsel objected to the judge’s
proposed spillover instruction. Trial counsel essentially argued that the instruction
was not appropriate because the evidence of assault against two different women was
relevant propensity evidence under Military Rule of Evidence 413: “it shows a
propensity of--the man is committing sexual assault against one person, then that
shows a propensity that he’s more likely to do it against the other person.”

Both parties then seemed to agree that a spillover instruc tion was only
appropriate in relation to the alternatively charged lesser-included offense of an
assault consummated by a battery against SB2. When the judge said she would then
tailor the instruction to that charge alone, the defense objected , stating:

[I]t could mislead the panel into thinking that they must
apply it . . . to the other charges and specifications. Even
with 413 and instructions, they “may” apply it to
determine propensity. If you say it’s good for one but not

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good for the other, the defense feels that it might send a
message that they have to apply it. We would just like
that objection noted for the record.

The judge then said: “Okay, and I can add that in my language.”

The judge never offered any Military Rules of Evidence 404 or 413 analyses.
Trial counsel never referred to the evidence as propensity evidence before the panel.

The judge ultimately instructed the panel that generally, an accused may be
convicted based only on evidence before the court and not on evidence of a general
criminal disposition.

[N]ormally each offense must stand on its own, and
you must keep the evidence of each offense separate.
Stated differently, if you find or believe that the accused
is guilty of one offense, you may not use that finding
or belief as a basis for inferring, assuming or proving that
he committed any other offense. Similarly, if evidence
has been presented which is relevant to more than one
offense, you may, however, consider that evidence with
respect to each offense for which it is relevant. For
example, if a person were charged with stealing a knife
and later using that knife to commit another offense,
evidence concerning the knife, such as that the person
being in possession of it or that the person’s fingerprints
were found on it, could be considered with regard to both
offenses. But the fact that a person’s guilt of stealing the
knife may have been proven is not evidence that that
person is also guilty of any other offense.

Now, the burden is on the prosecution to prove each and
every element of each offense beyond a reasonable doubt.
Proof of one offense carries with it no inference that the
accused is guilty of any other offense.

Now, with regards to this specific instruction, I a dvise you
that it applies to--specifically to Charge III and its
Specification, [2] and it may--it may and can apply to the

2
The Specification of Charge III alleged the lesser-included offense of assault
consummated by a battery upon SB2, which was ultimately dismissed after findings.

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other ones, but you do not have to apply those to those
other charges.

(emphasis added).

The judge then concluded with a standard instruction on the presumption of
innocence and the government’s burden to prove appellant’s guilt beyond a
reasonable doubt.

When prompted, defense counsel made no objection to the instructions
rendered and no request for additional instructions. The judge did not include the
instructions above in the written instructions provided to the panel for use during
their deliberations.

The government argued that appellant’s touching of SB2 followed by the
assault on SB1 was evidence of their conspiracy to commit rape, that “[JP] and
[appellant] were out on the prowl,” that their approach did not work with SB2, so
they tried a different approach with SB1 .

Defense counsel countered that appellant’s behavior with SB2 was contrary to
the government’s argument that appellant was a sexual predator. That when told by
SB2 to stop, he stopped, something a sexual predator w ould not do. In closing
argument, defense counsel again reiterated that he had no objection to th e DNA
evidence, arguing that SB1 had voluntarily engaged in a threesome with appellant
and JP.

Ten months after the trial’s conclusion, the military judge attached a written
denial of the defense request for expert assistance. There is nothing in the record or
in her post-trial ruling to reflect that that this decision was ever communicated to the
parties prior to the written ruling.

LAW & DISCUSSION

Expert Assistance

We hold that appellant waived any issue relative to his request for expert
assistance. Taken together, defense counsel’s acquiescence in the judge’s failure to
issue a ruling on the matter of expert assistance prior to trial ; appellant’s stipulation
as to the facts of the DNA testing at issue ; and defense counsel’s explicit
endorsement of the reliability of the same in his presentation to the court -martial
lead us to conclude that appellant waived any complaint he might have relative to
the lack of DNA expert assistance in his defense. See United States v. Whigham,
72 M.J. 653, 659-61 (Army Ct. Crim. App. 2013); United States v. Campos, 67 M.J.
330, 332-33 (C.A.A.F. 2009). Just as a defense counsel’s failure to renew a request

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when invited to do so by a military judge waives the issue, so does acquiescence in a
judge’s failure to decide followed by an express decision not to contest the evidence
at issue. See United States v. Gunkle, 55 M.J. 26, 32 (C.A.A.F. 2001); United States
v. Thomas, 11 M.J. 388, 392 (C.M.A. 1981). We reiterate our expectation that
defense counsel articulate any understanding that a litigated issue is preserved under
circumstances such as these. See Whigham, 72 M.J. at 660 n.3; see also Gunkle,
55 M.J. at 32.

Secondly, if we were to hold the judge’s failure to render a decision on the
matter prior to trial against her, and interpret the record—including the judge’s
post-trial decision—to establish that all reasonably understood the judge to have
denied appellant’s request for expert assistance prior to trial, the question is
nevertheless waived by the same stipulation and choice to advance a defense of
consent and surrender any attack upon the reliability of the DNA evidence.

Appellant claims that he was compelled to choose the defense of consent
because the judge foreclosed his exploration of the pote ntial defense that the DNA
evidence was unreliable. A judge’s decision denying expert assistance compels no
such choice. We do not deny that the denial of expert assistance may very well have
undermined the strength of any defense or ability to so cross-examine, but in no way
did it compel the choice to abandon attack upon the evidence in favor of a consent
defense. 3 See, e.g., Glebe v. Frost, 135 S. Ct. 429 (2014) (per curiam) (addressing
potential error if a judge requires the defense to choose between alternative
theories).

To preserve this issue, appellant would have had to persist in an attack upon
the reliability of the DNA evidence, cross-examined the government DNA experts
accordingly, and relied on the fact that the victim could not identify him. See
Campos, 67 M.J. at 332 n.3; see also United States v. Gagan, 43 M.J. 200, 204
(C.A.A.F. 1995) (appellant’s actions at trial, including his failure to object to the
testimony of a witness and his failure to renew his request for a witness as possible
rebuttal testimony “undermine[d] his claim that the judge’s exclusion of character
evidence thwarted a central defense strategy.”) . If appellant had pursued this

3
We also note that the defense counsel was not destitute in his ability to acquire
some bit of education on the subject to better equip himself for interpretation of the
DNA evidence and better arm himself for cross -examination, let alone a request for
reconsideration on the issue. See United States v. Gonzalez, 39 M.J. 459, 461
(C.M.A. 1994) (defense counsel is expected to demonstrate that he is unable to
gather and present evidence that an expert would be able to develop). Common
experience establishes that a goodly amount of information on the subject is readily
available.

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approach, he would then be in a position to argue that the judge abused her
discretion in denying his requested assistance because the linchpin of the
government’s case could very well have been that DNA evidence. See, e.g., United
States v. McAllister, 55 M.J. 270, 276 (C.A.A.F. 2001). When, as in this case,
appellant positively elicits testimony that makes the DNA analysis unimportant, he
surrenders the chance. To hold that he was denied a fair trial because he otherwise
might have been able to attack the validity of the DNA test results would make a
mockery of the adversarial trial as a truthfinding process. See United States v.
Johnston, 41 M.J. 13, 16 (C.M.A. 1994). 4

We acknowledge the unenviable position that an accused soldier occupies in
circumstances such as these; but, where an accused , through his own witness in
presenting his defense, establishes the fact that the DNA evidence at issue is
reliable, he has no basis to complain on appeal about the judge refusing his reque st
for expert DNA assistance. In light of the presumption that defense counsel is
competent, and our deference to his tactical choices, we find on this record that in
the several weeks between the motions hearing and trial, the defense counsel
consciously chose to abandon any defense based on faulty DNA analysis and opt for
the defense of consent asserted. See generally United States v. Mazza, 67 M.J. 470,
474-75 (C.A.A.F. 2009). 5

4
Remarkably, appellant asserts that the judge compelled presentation of the
“weaker” defense. This he posits despite his acknowledgement prior to trial that he
was uncertain of the strength of the DNA defense and despite that, at trial, he
positively vouched for the truth of the DNA report and evaluation.
5
We also consider, if the matter were not waived, whether the judge abused her
discretion by denying the request and hold otherwise. “[T]he accused has the burden
of establishing that a reasonable probability exists that (1) an expert would be of
assistance to the defense and (2) that denial of expert assistance would result in a
fundamentally unfair trial.” United States v. Freeman, 65 M.J. 451, 458 (C.A.A.F.
2008). The first prong of this test is rev iewed by application of a three-part
analysis. United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F. 2010) (citing Gonzales,
39 M.J. at 461). While the parties effectively address the first prong —whether a
DNA expert would have been of assistance to the defen se—they neglect to
effectively address the second, and we find that appellant failed to demonstrate a
reasonable probability that denial of his requested expert would result in a
fundamentally unfair trial. The judge is in no position to assess whether th ere is a
reasonable probability that a defense expert is necessary or that an unfair trial would
result absent the expert assistance when the defense counsel admits that despite any
expert assistance, the alternative defense —one that necessarily admits that the DNA
evidence is reliable—may nonetheless be the better. See id. at 99-100 (a defense

(continued . . .)

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Erroneous Spillover Instruction

We agree with appellant that the judge issued an erroneous instruction on
spillover. The final part of the judge’s spillover instruction is confusing and rather
difficult to decipher. Considering the previous discussion between judge and
defense counsel on the subject, and in light of the fact that defense counsel made no
objection or request for additional instruction after the judge issued the instruction ,
it may be that defense counsel was satisfied with that instruction.

However, because the danger exists that the members may have understood
that instruction to mean that proof of the wrongful sexual contact carries with it the
inference that appellant was also guilty of the charged rape, we review the error and
test for prejudice. See United States v. Guthrie, 53 M.J. 103, 106-07 (C.A.A.F.
2000); United States v. Baxter, 72 M.J. 507, 513 (Army Ct. Crim. App. 2013) . We
are convinced that the error was harmless because it is “clear beyond a reasonable
doubt that a rational [panel] would have found [appellant] guilty absent the error [.]”
Baxter, 72 M.J. at 513 (quoting United States v. DiPaola, 67 M.J. 98, 102 (C.A.A.F.
2008)) (internal quotation marks omitted). In reaching this conclusion, we find no
reasonable possibility that the incorrect instruction might have “contribute[d] to the
[appellant’s] conviction.” United States v. Davis, 73 M.J. 268, 271 (C.A.A.F. 2014).

First, the defense theory of the case consciously employed evidence relevant
to the charged wrongful sexual contact to argue that appellant was not guilty of the
charged rape. Excision of the final confused instruction from the judge would
therefore add little, if anything, to the defense’s trial strategy. See Guthrie, 53 M.J.
at 106.

Second, the government convicted appellant with evidence completely
separate and distinct from the evidence relevant to the charge of wrongful sexual
contact. We are, therefore, confident that appellant was not convicted of rape based
on evidence of a general criminal disposition. See id. at 106-07.

Finally, the evidence relevant to the cha rged wrongful sexual contact was also
relevant to the charged conspiracy and the charged rape as evidence of a pattern of
lustful intent and was offered for that purpose. Though the government argued, in a
hearing outside the presence of the members, that the evidence was relevant

(. . . continued)
request for an expert based on the desire for an expert to explore all possibilities is
insufficient to show necessity); United States v. Anderson, 68 M.J. 378, 383
(C.A.A.F. 2010) (equating the second prong with a bar to prosecution because of
outrageous government conduct).

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propensity evidence, trial counsel never made any reference or argument before the
panel members to or about propensity evidence. T he government never
characterized the evidence as propensity evidence and did not present the evidence
relevant to the one charge as evidence of appellant’s propensity or predisposition to
criminal activity generally. Rather, trial counsel presented the evidence as simply
relevant to establish appellant’s lustful intent . See United States v. Tanksley,
54 M.J. 169, 175 (C.A.A.F. 2000), overruled on other grounds by United States v.
Inong, 58 M.J. 460, 464 (C.A.A.F. 2003). We are, therefore, confident that the
confused instruction worked no prejudice to appellant under these circumstances. 6

Sufficiency of the Evidence

Finally, having fulfilled our responsibilities under Article 66(c), UCMJ, we
are convinced beyond any reasonable doubt that appellant committed the charged act
of rape and are thus equally convinced of the sufficiency of the ev idence necessary
to affirm the lesser-offense affirmed by the convening authority acting under his
Article 60, UCMJ, authority. See United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002).

The victim provided credible testimony, corroborated by medical evidence,
and additional testimony was elicited from third parties describing her distraught
state and establishing her character and reputation for truthfulness. Our review of
the evidence in its entirety, to include appellant’s defense of consent as raised by the
testimony of his accomplice and impeachment of the victim, leaves no reasonable
doubt in our minds. 7

6
Similarly we find no merit in appellant’s contention that he was prejudiced by the
judge’s failure to provide analysis and instructions rel ative to character and
propensity evidence under Military Rules of Evidence 404 and 413. At trial,
appellant made no clear objection to the lack of either a 413 or 404 instruction or
analysis and, as described above, the lack of either or both does not co nstitute plain
error under the circumstances of this case in any event. See United States v. Payne,
73 M.J. 19, 22-23 (C.A.A.F. 2014)
7
Admission of the nurse’s testimony to the effect that the bruising on SB1 was more
consistent with nonconsensual sex than consensual sex cannot constitute plain error
under the circumstances. It is reasonable for experts to offer opinions about whether
someone’s description of their condition is consistent with scientific evidence
accumulated on the subject. See, e.g., United States v. Davis, 49 M.J. 79, 82
(C.A.A.F. 1998) (citing United States v. Utter, 97 F.3d 509, 512 (11th Cir. 1996));
United States v. Traum, 60 M.J. 226, 235 (C.A.A.F. 2004) (citing United States v.
White, 23 M.J. 84, 87 (C.M.A. 1986)); United States v. Flesher, 73 M.J. 303, 314 n.6

(continued . . .)

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The evidence upon which the convening authority approved appellant’s
conviction for aggravated sexual assault is legally and factually sufficient. See
Jackson v. Virginia, 443 U.S. 307, 319 (1979); Washington, 57 M.J. at 399.

CONCLUSION

The findings of guilty and the sentence as approved are AFFIRMED.

Senior Judge LIND and Judge PENLAND concur.

FOR THE
FOR THE COURT:
COURT:

MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court

(. . . continued)
(C.A.A.F. 2014); United States v. Pabon, 42 M.J. 404, 406-07 (C.A.A.F. 1995); see
also Military Rules of Evidence 702-703. Also, we find no merit to appellant’s
contention that the admission of hearsay statements from SB1 ’s mother to the nurse
was an abuse of discretion. See generally United States v. Cucuzzella , 66 M.J. 57,
59-60 (C.A.A.F. 2008); United States v. Giambra, 38 M.J. 240, 242 (C.M.A. 1993)
(citing United States v. Weeks, 20 M.J. 22, 25 (C.M.A. 1985)).

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