United States v. Barnes

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Staff Sergeant KEVIN W. BARNES
United States Air Force

ACM 38720

27 April 2016

Sentence adjudged 21 June 2014 by GCM convened at Luke Air Force Base,
Arizona. Military Judge: Matthew P. Stoffel.

Approved Sentence: Dishonorable discharge, confinement for 25 years, and
reduction to E-1.

Appellate Counsel for Appellant: Major Thomas A. Smith; Major Jeffrey A.
Davis; and William E. Cassara (civilian).

Appellate Counsel for the United States: Major Meredith L. Steer; Major
Mary Ellen Payne; Captain J. Ronald Steelman III; and Gerald R. Bruce,
Esquire.

Before

ALLRED, TELLER, and ZIMMERMAN
Appellate Military Judges

OPINION OF THE COURT

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
under AFCCA Rule of Practice and Procedure 18.4.

ALLRED, Chief Judge:

Appellant was tried at a general court-martial by military judge alone. Contrary to
his plea, he was found guilty of sodomy with a child in violation of Article 125, UCMJ, 10
U.S.C. § 925. Appellant was found not guilty of assault consummated by a battery, in
violation of Article 128, UCMJ, 10 U.S.C. § 928. The adjudged sentence was a
dishonorable discharge, confinement for 25 years, forfeiture of all pay and allowances, and
reduction to the grade of E-1. The convening authority approved the adjudged sentence
except for the forfeiture of pay and allowances.1

On appeal, Appellant contends: (1) the evidence is factually insufficient to sustain
his conviction of sodomy with a child, (2) the military judge improperly admitted a video
recording from a forensic interview with the alleged victim, (3) the military judge
improperly admitted out-of-court statements by the alleged victim, (4) the military judge
improperly refused to admit the entirety of a pretext phone call between Appellant and his
wife, (5) the military judge improperly refused to compel production of notes made by a
government paralegal, and (6) the military judge improperly admitted testimony of
Appellant’s interest in oral sex. We disagree and affirm the findings and sentence.

Background

The victim in this case was born in 2008. Her parents were not married and lived
together for some months after her birth, before separating. Due to her parents’ difficulties
in providing care, the victim began living with her great-grandmother a few months after
she was born. The victim’s mother eventually became reacquainted with Appellant, with
whom she had been friends in high school. She and Appellant married in September 2010.
In February 2012, when the victim was about three-and-a-half years old, she moved out of
her great-grandmother’s home and began living with her mother and Appellant. In time,
the victim began calling Appellant “Daddy Kevin.”

On 22 May 2013—a few months before her fifth birthday—the victim returned to
visit her great-grandmother. As the victim entered the home, their interaction proceeded
essentially as follows: The victim greeted her great-grandmother with a hug and said,
“Nana, I love you.” The great-grandmother answered, “I love you too, honey.” The victim
then placed her face in her great-grandmother’s crotch in such a way as to take her aback.
The great-grandmother said, “Honey, you don’t do that. That’s not nice.” The victim
replied, “Daddy Kevin does it.” The great-grandmother then asked, “Daddy Kevin puts
his face in your privates?” The victim answered, “No, he has me put my face in his privates
and tells me to suck it like a Popsicle.”

This encounter led to the investigation and court-martial of Appellant in the present
case. From the initial disclosure to her great-grandmother through the trial of this case, the
victim has firmly maintained that Appellant repeatedly caused her to perform oral sex upon
him in the bathroom of the home where they were living. Further facts necessary to address
the assignments of error are provided below.

1
The court-martial order (CMO) contains minor errors. Under the Specification of Charge I, the word “about” is
missing—it should follow the words “between on or.” And, under Charge II, the word “Specification” should replace
“Specification 2.” We order promulgation of a corrected CMO.

2 ACM 38720
 I. Factual and Legal Sufficiency

Appellant first argues that the evidence is factually insufficient to sustain his
conviction. We review issues of factual and legal sufficiency de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).

The test for factual sufficiency is “whether, after weighing the evidence in the record
of trial and making allowances for not having personally observed the witnesses, [we are]
convinced of the [appellant]’s guilt beyond a reasonable doubt.” United States v. Reed, 54
M.J. 37, 41 (C.A.A.F. 2000) (quoting United States v. Turner, 25 M.J. 324, 325 (C.M.A.
1987)). In conducting this unique appellate role, we take “a fresh, impartial look at the
evidence,” applying “neither a presumption of innocence nor a presumption of guilt” to
“make [our] own independent determination as to whether the evidence constitutes proof
of each required element beyond a reasonable doubt.” Washington, 57 M.J. at 399.

“The test for legal sufficiency of the evidence is ‘whether, considering the evidence
in the light most favorable to the prosecution, a reasonable factfinder could have found all
the essential elements beyond a reasonable doubt.’” Turner, 25 M.J. at 324, as quoted in
United States v. Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002). The term reasonable doubt
does not mean that the evidence must be free from conflict. United States v. Lips, 22 M.J.
679, 684 (A.F.C.M.R. 1986). “[I]n resolving questions of legal sufficiency, we are bound
to draw every reasonable inference from the evidence of record in favor of the
prosecution.” United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001). Our assessment
of legal and factual sufficiency is limited to the evidence produced at trial. United States
v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993).

To establish the crime of sodomy with a child under the age of 12 years, the
Government must prove beyond a reasonable doubt: (1) that the accused engaged in
unnatural carnal copulation with a certain other person; and (2) that the act was done with
a child under the age of 12. Manual for Courts-Martial, United States (MCM), pt. IV,
¶ 51.b. (2012 ed.). Unnatural carnal copulation means “to take into that person’s mouth or
anus the sexual organ of another person or of an animal; or to place that person’s sexual
organ in the mouth or anus of another person or of an animal.” MCM, pt. IV, ¶ 51.c.

We have carefully considered the record of trial in this case, along with the parties’
arguments regarding the evidence. In doing so, we have paid particular attention to
Appellant’s claims that the victim was—for a host of reasons—not a credible witness and
should not be believed. Nevertheless, viewing the evidence in the light most favorable to
the Government, we find it legally sufficient to sustain the conviction. Moreover, we are
ourselves satisfied that the victim did indeed suffer the sexual abuse she described, and that
Appellant was in fact the perpetrator of that abuse. Making allowances for not having
observed the witnesses directly, and applying neither a presumption of innocence nor a
presumption of guilt, we are convinced of Appellant’s guilt beyond a reasonable doubt.

3 ACM 38720
 II. Admission of Forensic Interview

Over defense objection, the military judge admitted Prosecution Exhibit 7, a video
containing portions of a forensic interview of the victim. The exhibit contained no audio
and showed four short clips of the victim making different gestures during the interview.
The total length of the video was 29 seconds. In court, the Government’s forensic
psychologist, who did not conduct the interview in question, referred to the exhibit and
opined that the victim was simulating oral sex in the video clips. She further opined that it
was very rare for a child the victim’s age to have knowledge of oral sex.

Trial defense counsel argued the video was not admissible because it “bolstered”
victim’s testimony, was hearsay, and violated Mil. R. Evid. 403. On appeal, Appellant
renews these objections and also argues Prosecution Exhibit 7 should not have been
admitted because it was unauthenticated and was insufficient to constitute evidence of age-
inappropriate knowledge.

We review a military judge’s ruling on the admissibility of evidence for an abuse of
discretion. United States v. Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010). “The abuse of
discretion standard is a strict one, calling for more than a mere difference of opinion. The
challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous.”
United States v. White, 69 M.J. 236, 239 (C.A.A.F. 2010) (quoting United States v. Lloyd,
69 M.J. 95, 99 (C.A.A.F. 2010)). In those instances where trial defense counsel did not
object to the admission of evidence at trial we will review the military judge’s decision to
admit evidence for plain error. United States v. Hardison, 64 M.J. 279, 281 (C.A.A.F.
2007). Plain error requires that “(1) an error was committed; (2) it was plain, or clear, or
obvious; and (3) the error resulted in material prejudice to substantial rights.” Id. The
burden is on the appellant to persuade the court that the three prongs of the plain error test
have been satisfied. Id. Where trial defense counsel objects to the admissibility of
evidence on one ground at trial and a different ground on appeal, the new objection on
appeal is reviewed under the plain error analysis. See United States v. Greska, 65 M.J.
835, 844 (A.F. Ct. Crim. App. 2007) (reviewing the admission of an exhibit under both an
abuse of discretion and plain error for two objections—one made at trial and one made on
appeal).

A. Bolstering

Appellant argues that Mil. R. Evid. 608 prohibited the Government from
introducing Prosecution Exhibit 7 to “bolster” the victim’s testimony, because the victim’s
credibility had not been sufficiently attacked. Appellant’s reliance on Mil. R. Evid. 608 is
misplaced.

4 ACM 38720
 Mil. R. Evid. 608 is a relatively narrow rule. It sets forth parameters for introducing
and rebutting a witness’s “character for truthfulness or untruthfulness”—along with
impeachment through evidence of “[b]ias, prejudice, or any motive to misrepresent.” Mil.
R. Evid. 608(c). Contrary to Appellant’s suggestion, Mil. R. Evid. 608 does not purport to
restrict the generalized “bolstering” of victim’s testimony that occurs when the
Government endeavors to prove—by means other than character for truthfulness—an
accused’s guilt “by legal and competent evidence beyond a reasonable doubt.” See Rule
for Courts-Martial (R.C.M.) 920(e)(5)(A).

In the present case, Prosecution Exhibit 7 did not pertain to the victim’s character
for truthfulness or untruthfulness; and Mil. R. Evid. 608 was not invoked. The Government
appears to have offered the exhibit for the sole—and relevant—purpose of demonstrating
that the victim had age-inappropriate knowledge. As Mil. R. Evid. 608 is not implicated
in this case, the trial judge did not abuse his discretion by overruling trial defense counsel’s
objection to Prosecution Exhibit 7 on this basis.

B. Hearsay

Appellant argues also that Prosecution Exhibit 7 was impermissible hearsay.
Hearsay is generally not admissible. Mil. R. Evid. 802. Hearsay is “a statement, other than
the one made by the declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.” Mil. R. Evid. 801(c) (emphasis added). Hearsay
can arise from “nonverbal conduct of a person, if it is intended by the person as an
assertion.” Mil. R. Evid. 801(a).

In response to questions during the forensic interview, the victim demonstrated for
the examiner what Appellant made her do to him. The Government, however, offered the
exhibit not to prove the truth of any matter asserted by the victim, but to show that she had
age-inappropriate knowledge. In overruling the defense hearsay objection to Prosecution
Exhibit 7, the military judge emphasized that it was not “being offered for the truth of the
matter asserted” and the court would consider it “only as evidence of potential age-
inappropriate sexual behavior.” The victim herself never asserted that she possessed age-
inappropriate knowledge and, as Prosecution Exhibit 7 was neither offered nor admitted to
prove the truth of the matter asserted by the victim, the video was not hearsay. The judge
did not err in overruling trial defense counsel’s hearsay objection.

C. Unfair Prejudice

Appellant also argues he was unfairly prejudiced by the admission of Prosecution
Exhibit 7. He concedes, however, that the Government could have had its forensic
psychologist testify regarding the victim’s age-inappropriate knowledge without the video.
According to Appellant, the Government “chose to place [videos of the victim] in front of
the fact finder purportedly re-enacting the abuse to bolster her credibility and to allow the

5 ACM 38720
fact finder to imagine her as a victim.” He further claims that the harm was exacerbated
when the Government’s forensic psychologist testified about the video.

Mil. R. Evid. 403 provides that relevant evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the members, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence. In admitting Prosecution Exhibit 7, the military judge
conducted a Mil. R. Evid. 403 balancing test, stating:

[T]he probative value of the evidence in Prosecution Exhibit 7
is not substantially outweighed by the danger of unfair
prejudice, confusion of the issues, waste of time or for any of
those reasons. The information in Prosecution Exhibit 7 is
probative, especially when combined with [the forensic
psychologist]’s testimony, and the context in which [the
forensic psychologist]’s testimony was used in connection with
the contents of Prosecution Exhibit 7 significantly diminished
any danger of unfair prejudice or confusion in the mind of the
court.

Because trial defense counsel objected on Mil. R. Evid. 403 grounds at trial the
ruling is reviewed for an abuse of discretion. See United States v. Clayton, 67 M.J. 283,
286 (C.A.A.F. 2009). We agree with the military judge that the video has probative value
in showing that the victim had knowledge of oral sex. We find that the probative value
was not substantially outweighed by the danger of unfair prejudice or other Mil. R. Evid.
403 concerns. By the time the Government offered Prosecution Exhibit 7, the victim had
already testified that Appellant made her perform oral sex on him. The testimony from the
Government’s forensic psychologist was not dependent on Prosecution Exhibit 7. The
video lasted only 29 seconds and was not particularly inflammatory or graphic. This was
a trial by military judge alone where any “danger of unfair prejudice” was greatly
diminished, because a “military judge is presumed to know the law and apply it correctly.”
See United States v. Robbins, 52 M.J. 455, 457 (C.A.A.F. 2000). We find the judge did
not abuse his discretion with regard to his Mil. R. Evid. 403 ruling.

D. Authentication

Trial defense counsel did not object to the authentication of Prosecution Exhibit 7
at trial. Now on appeal, Appellant argues that because the Government did not properly
authenticate the exhibit its admission amounted to plain error.

Mil. R. Evid. 901 states that, to authenticate evidence, the proponent “must produce
evidence sufficient to support a finding that the item is what the proponent claims it is.”
Our superior court has held that failure to object to the admission of evidence on

6 ACM 38720
authentication grounds waives the issue. United States v. Ayers, 54 M.J. 85, 91 (C.A.A.F.
2000) (finding the appellant waived authentication issue for not raising the issue at trial);
United States v. Evans, 45 C.M.R. 353, 355 (C.M.A. 1972) (finding waiver of
authentication where trial defense counsel twice failed to object to the admission of
evidence at trial); see also Mil. R. Evid. 103(a)(1).

Appellant argues that authentication is forfeited absent plain error rather than
waived. We recognize that military courts have not consistently distinguished between
“waiver” and “forfeiture.” United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009). A
forfeited right is reviewed for plain error while an intentional waiver cannot be raised on
appeal. Id.

We note that our superior court did not afford the appellant the benefit of a plain
error analysis in either Ayers or Evans cited above. However, even applying a plain error
analysis in the present case, we would not find error. Government trial counsel asserted—
without challenge from the Defense—that Prosecution Exhibit 7 depicted a forensic
interview of the victim. Having reviewed Prosecution Exhibit 7 and all other evidence in
the record, we are convinced that the item is what the proponent claimed it to be. See Mil.
R. Evid. 901. We do not find error, plain or otherwise.

E. Evidence of Age-Inappropriate Knowledge

Appellant argues further that “Prosecution Exhibit 7 was inadmissible because
without audio there was no way for . . . anyone . . . to determine whether the conduct in the
video was or was not ‘age-appropriate.’” He argues, among other things, that the victim
could have merely been following the directions of the interviewer. We find that
Appellant’s argument goes to the weight of the evidence rather than its admissibility. The
mere fact that evidence can be interpreted in multiple ways is not a bar to its admission.
See People v. Anderson, 152 Cal. App. 4th 919, 931 (Cal. App. 3d Dist. 2007) (stating that
circumstantial evidence does not stand on its own but requires the factfinder to draw
reasonable inferences). We find Prosecution Exhibit 7 relevant to and probative of the
charge of sodomy with a child. We find no error, plain or otherwise, in the judge’s
admitting and considering Prosecution Exhibit 7 as evidence of age-inappropriate
knowledge on the part of the victim regarding oral sex.

III. Out of Court Statements by the Victim

In presenting its case at trial, the Government followed the not uncommon practice
of establishing through witnesses how criminal allegations came to light and were
investigated. In doing so, the Government called the victim’s great-grandmother who
described her initial abuse complaint along with their bringing the matter to police
authorities. Similarly, the Government called a civilian policeman, Officer JR, who
described the allegation he received and how the police responded. On appeal, Appellant

7 ACM 38720
argues that admitting the victim’s statements to the great-grandmother and Officer JR
was error because they were hearsay. Appellant also contends the evidence was
irrelevant and that its probative value was substantially outweighed by the danger of
unfair prejudice. We disagree.

In her testimony at trial, the great-grandmother began to describe what the victim
told her when she first brought allegations against Appellant to light. Trial defense
counsel objected on grounds of hearsay. Government counsel responded that the initial
disclosure was offered for its “effect on the listener” and because it “leads to every step
that’s taken afterwards.” The military judge then ruled, “I’ll consider it for its effect on
the listener; overruled.” After this, the great-grandmother explained what the victim said
Appellant had done to her, and she described the actions she took as a result of the
victim’s disclosure.

Likewise, when Officer JR testified, the Government asked him to describe how
his investigation of Appellant began and proceeded. Officer JR started to explain what
the great-grandmother reported to him. The Defense objected that this was hearsay. The
Government replied that testimony was offered only for its effect on the listener. The
judge then ruled that he would consider the statements for “purposes of effect on the
listener.” At the conclusion of Officer JR’s testimony, the military judge emphasized:

Counsel, just out of an abundance of caution, so it’s clear for
the record, the objection is overruled on the basis of effect on
the listener. The court interprets that as not being offered for
the truth of the matter asserted. The court does not consider it
as substantive evidence, merely to show what steps were taken
by the testifying witnesses.

Later, during closing argument, Government trial counsel began to repeat what the
victim had told her great-grandmother. The Defense objected, noting that the statements
had been admitted only for their effect on the listener. The judge responded, “I
understand it and I understand that trial counsel is describing the effect that it had on [the
great-grandmother]; that she heard such things and that’s how the court is using the
information.”

In addressing this assignment of error (AOE), we adopt the case law and other
legal authority cited above. We are satisfied that the military judge knew and properly
applied the rules of hearsay and relevancy. See Robbins, 52 M.J. at 457. We find that the
challenged testimony was not hearsay, as it was not offered for the truth of any matter
asserted. See Mil. R. Evid. 801(c). We find also that the testimony was relevant in
explaining why police were contacted and how their investigation proceeded, and the
probative value of the evidence was not substantially outweighed by the danger of unfair
prejudice or other concern under Mil. R. Evid. 403. See United States v. Swift, 2016

8 ACM 38720
CCA LEXIS 26, *7-8 (Army Ct. Crim. App. 21 January 2016) (finding that the victim’s
statement was admitted for its effect on the listener, and properly offered to show why
protective services were contacted and how the investigation ensued).

IV. Partial Exclusion of Pretext Phone Call

Under the guidance of police investigators, the victim’s mother called Appellant on
his cell phone and confronted him about the victim’s allegations of sexual abuse. During
the 23 minute phone call, Appellant continuously denied the allegations. At trial, defense
counsel sought to admit the entire pretext phone call. The primary theory of admission
was that of excited utterance by Appellant. The Defense also sought to admit the phone
call as a present sense impression and as a statement of then-existing mental or emotional
condition. Of the 23-minute phone call, the military judge admitted 60 seconds of
Appellant’s statements immediately following initial confrontation. Appellant argues the
military judge erred by not admitting the entire call.

Mil. R. Evid. 803 states, in pertinent part

The following are not excluded by the rule against hearsay,
regardless of whether the declarant is available as a witness:

(1) Present Sense Impression. A statement describing or
explaining an event or condition, made while or immediately
after the declarant was perceived it.

(2) Excited Utterance. A statement relating to a startling event
or condition, made while the declarant was under the stress of
excitement that it caused.

(3) Then-Existing Mental, Emotional, or Physical Condition.
A statement of the declarant’s then-existing state of mind . . .
or emotional, sensory, or physical condition . . . .

The admissibility of an excited utterance is based on the premise “that a person who
reacts to a startling event or condition while under the stress of excitement caused thereby
will speak truthfully because of a lack of opportunity to fabricate.” United States v. Jones,
30 M.J. 127, 129 (C.M.A. 1990). “The guarantee of trustworthiness of an excited utterance
is that the statement was made while the declarant was still in a state of nervous excitement
caused by a startling event.” United States v. Chandler, 39 M.J. 119, 123 (C.M.A. 1994).
Although a person is less likely to be influenced by the stress or excitement of the event as
time passes, the lapse of time is not critical to the analysis. United States v. Grant, 38 M.J.
684, 691 (A.F.C.M.R. 1993). In evaluating the time lapse, we consider the age of the
declarant, his physical and mental condition, the nature and circumstances of the event,

9 ACM 38720
and the subject matter of the statements. United States v. Fling, 40 M.J. 847, 851
(A.F.C.M.R. 1994) (citing United States v. Iron Shell, 633 F.2d 77, 86 (8th Cir. 1980)).

In United States v. Moolick, our superior court held that a trial judge abused his
discretion when he excluded part of an appellant’s response to an accusation of rape. 53
M.J. 174, 176 (C.A.A.F. 2000). In that case, soon after a physical encounter, the alleged
victim accused the appellant of raping her. The appellant responded, “You grabbed me
first,” then threw up his hands and said, “Call the cops.” Id. The trial judge only allowed
“Call the cops” as an excited utterance. Id. The Court of Appeals for the Armed Forces
ruled that the startling event was the accusation of rape and that “You grabbed me first”
should also have been admitted. Id. at 177.

Citing Moolick, the military judge in the present case held that Appellant’s being
accused of a serious crime caused him to make an excited utterance, but that soon thereafter
his responses became “the product of reflection and deliberation.” The military judge
noted that the same accusation against the Appellant was alleged repeatedly during the 23-
minute conversation. The military judge further noted that Appellant started to formulate
other reasons why RT was accusing him of misconduct, which suggested his statements
were no longer spontaneous. The military judge also ruled that the remainder of the pretext
phone call was not admissible as a present sense impression, then existing mental state, or
other hearsay exception.

In addressing this AOE, we adopt the case law and other legal authority cited above.
In doing so, we find the military judge’s conclusion that Appellant was no longer under the
influence of a startling event after 60 seconds of conversation was not clearly erroneous.
Likewise, we find the judge did not err in ruling that other hearsay exceptions did not apply.
Moreover, even if the trial judge did err in not admitting some or all of the remaining
pretext call, we find any error to have been harmless. The 60-second portion of the pretext
phone call admitted by the military judge included Appellant’s repeated and vehement
denials that he ever abused the victim. We discern no harm to Appellant in the judge’s
declining to consider his repetition of those same denials during the remaining
conversation.

V. Discovery of Paralegal Notes

Appellant argues that the military judge erred when he refused to order disclosure
of notes taken by a government paralegal during a pretrial interview of the victim. He
claims he was entitled to the information under Article 46, UCMJ, 10 U.S.C. § 846, and
Brady v. Maryland, 373 U.S. 83 (1963).2

2
Appellant also sought to obtain the paralegal notes in question through a Motion for Appellate Discovery to this
court. On 16 October 2015 we denied the motion. Appellant then moved that we reconsider our denial and, on
3 November 2015 we denied the Motion for Reconsideration.

10 ACM 38720
 We review a military judge’s decision on a request for discovery for abuse of
discretion—which occurs when his findings of fact are clearly erroneous, when he is
incorrect about the applicable law, or when he improperly applies that law. United States
v. Roberts, 59 M.J. 323, 326 (C.A.A.F. 2004). The right of an accused to obtain favorable
evidence is established in Article 46, UCMJ. This article is implemented by R.C.M. 701
which details the rights and corresponding obligations of the parties in courts-martial. In
Roberts, our superior court established a two-step analysis for claims of nondisclosure of
evidence potentially favorable to the defense. We first determine whether the information
or evidence at issue was subject to disclosure or discovery and, if so, we then test the effect
of the nondisclosure on the appellant’s trial. 59 M.J. at 325.

R.C.M. 701 envisions “liberal discovery practice” and places particular emphasis
on the Government’s duty to disclose information which is requested by the accused and
is “material to the preparation of the defense.” Roberts, 59 M.J. at 325; R.C.M.
701(a)(2)(A). R.C.M. 701(f) specifically declares, however, “Nothing in this rule shall
require the disclosure or production of notes, memoranda, or similar working papers
prepared by counsel and counsel’s assistants and representatives.” Our superior court has
declared, “Even though liberal, discovery in the military does not ‘justify unwarranted
inquiries into the files and the mental impressions of an attorney.’” United States v.
Vanderwier, 25 M.J. 263, 269 (C.M.A. 1987) (quoting Hickman v. Taylor, 329 U.S. 495,
510 (1947)).

Appellant’s trial began on 18 June 2014. In preparing their case, government
counsel interviewed the victim on 16 June 2014. Attending the interview was a
government paralegal, Airman First Class (A1C) JB. Also attending was a civilian
assigned to the base legal office and the Government’s expert forensic psychologist. Only
A1C JB took notes during the interview. At the end of the interview, Government trial
counsel concluded that—based upon their “continuing discovery obligations”—statements
made by the victim during that interview should be disclosed to the Defense. Later that
night, the Government provided the Defense an updated list of discovery items, including
a detailed description of statements made by the victim during her interview on 16 June
2014.3 In response to a Defense request for further particulars regarding the victim

3
Among other matters, trial counsel disclosed to the Defense that in “a pretrial interview with the government on 16
June 2014,” the victim stated that

Kevin forced her to view his exposed genitals in a bathroom stall contained within
the girls’ restroom at a restaurant; that the accused touched her vagina; that the
accused forced her to touch his penis; that the accused’s penis didn’t taste like a
popsicle, but tasted like hair; that the accused made her put her mouth on his penis
and suck it; that it was so disgusting; that this happened more than once; that it
happened in her bedroom as well; that Kevin made her keep her mouth on it; that
she had to hold her breath; that stuff came out of his privates and it tasted like
rotten butter, stinky shoes, and pee; that his pee was sticky and went into her
mouth; that it happened more than once; that he peed all the way into her throat;
that he made her get down on her knees; that the hair was hard, rough and very

11 ACM 38720
interview, the Government’s expert forensic psychologist met the following day, 17 June
2014, with the expert forensic psychologist for the Defense, and related all that she could
remember from the interview. Citing attorney client privilege, however, the Government
refused to provide the Defense copies of the notes taken by A1C JB.

The Defense moved at trial to compel the production of A1C JB’s notes. In ruling
upon the motion, the military judge made detailed findings of fact. He concluded that the
Defense had failed to meet their burden of showing by a preponderance of the evidence
that the production of A1C JB’s notes—or in camera review of those notes—was
warranted. We agree.

The record in this case suggests that the Government was diligent in providing
discovery to the Defense. In addition the notice on 16 June 2014, on at least two prior
occasions the Government provided the Defense notice of statements made by the victim.
We find that the military judge’s findings of fact were not clearly erroneous, that he was
not incorrect about the applicable law, and that he did not improperly apply that law. See
Roberts, 59 M.J. at 326. We find the trial judge properly applied the general rule that the
“disclosure or production of notes . . . prepared by counsel and counsel’s assistants and
representatives” is not required. See R.C.M. 701(f). Agreeing with the judge’s conclusion
that the information at issue was not subject to disclosure or discovery, we need not test
the effect of the nondisclosure on Appellant’s trial. See Roberts, 59 M.J. at 325.

VI. Evidence of Appellant’s Interest in Oral Sex

Appellant claims the military judge erred in admitting evidence of his interest in
oral sex. We review a military judge’s decision to admit evidence for an abuse of
discretion. United States v. Solomon, 72 M.J. 176, 179 (C.A.A.F. 2013). “The abuse of
discretion standard is a strict one, calling for more than a mere difference of opinion. The
challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous.”
Id. (quoting United States v. White, 69 M.J. 236, 239 (C.A.A.F. 2010)).

The Prosecution called JB—mother of the victim and wife of Appellant—to testify
at trial. During her testimony, Government counsel asked JB about Appellant’s interest in
oral sex. Defense counsel objected to this line of questioning on grounds of general
relevancy. The military judge overruled to objection. JB then testified that Appellant
wanted her to perform oral sex on him “all the time before we would engage in foreplay.”
JB testified that she did not provide as much oral sex as he wanted.

We find that the military judge did not abuse his discretion in overruling the Defense
objection based upon relevance. On the unique facts of this case, the judge could have
properly concluded that evidence of Appellant’s dissatisfaction with the amount of oral sex

short; that it was scratchy; and the accused’s privates looked about “this” long,
referencing a stuffed bear’s arm and a length of 5 to 6 inches.

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in his marriage was relevant to the victim’s claim that he sought oral sex from her. The
judge’s ruling was not “arbitrary, fanciful, clearly unreasonable, or clearly erroneous.” See
Solomon, 72 M.J. at 179.

Appellant also argues that JB’s testimony was unduly prejudicial under Mil. R.
Evid. 403 and improper character evidence under Mil. R. Evid. 404(b). Appellant did not
raise these objections at trial.

“Where an appellant has not preserved an objection to evidence by making a timely
objection, that error will be forfeited in the absence of plain error. A timely and specific
objection is required so that the court is notified of a possible error, and so has an
opportunity to correct the error and obviate the need for appeal.” United States v. Knapp,
73 M.J. 33, 36 (C.A.A.F. 2014) (citations omitted). Under plain error review, Appellant
has the burden of showing there was error, that the error was plain or obvious, and that the
error materially prejudiced a substantial right of the appellant. United States v. Girouard,
70 M.J. 5, 11 (C.A.A.F. 2011). We find that Appellant has, in the present case failed to
demonstrate error, plain or otherwise.

Conclusion

The findings and sentence are correct in law and fact, and no error materially
prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ,
10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and sentence are AFFIRMED.

FOR THE COURT

LEAH M. CALAHAN
Clerk of the Court

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