United States v. Private E1 HUNTER I. CAMPBELL

UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
BURTON, RODRIGUEZ, and FLEMING
Appellate Military Judges

UNITED STATES, Appellee
Vv.
Private E1 HUNTER I. CAMPBELL
United States Army, Appellant

ARMY 20180107

Headquarters, U.S. Army Aviation Center of Excellence
Richard J. Henry, Military Judge
Colonel Leslie A. Rowley, Staff Judge Advocate

For Appellant: Captain Benjamin J. Wetherell, JA; William E. Cassara, Esquire (on
brief); Captain Steven J. Dray, JA; William E. Cassara, Esquire (on reply brief, brief
on specified issues, and reply brief on specified issues); Lieutenant Colonel Jack D.
Einhorn, JA; Captain Benjamin A. Accinelli, JA; Captain Steven J. Dray, JA (on
brief on specified issue).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Major Dustin B. Myrie, JA; Captain Lauryn D. Carr, JA (on brief and
briefs on specified issues).

6 March 2020

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

FLEMING, Judge:

On appeal, appellant asserts the military judge abused his discretion by failing
to recuse himself and abused his discretion in admitting the victim’s prior consistent
statement pursuant to Military Rule of Evidence [Mil. R. Evid.] 801(d)(1)(B)(ii).!
For the reasons set forth below, we do not find the military judge was required to
recuse himself in appellant’s case. However, we do find the military judge erred as

' Appellant did not initially raise these claims as assigned errors, rather the court sua
sponte specified these issues for additional briefing. We have given full and fair
consideration to appellant’s three assigned errors in his brief and find they merit
neither discussion nor relief.
CAMPBELL—ARMY 20180107

a matter of law in admitting the victim’s prior consistent statement prejudicing
appellant’s substantial rights.”

BACKGROUND
The Offense

Appellant and the victim, Specialist (SPC) KR, worked together as military
police assigned to the same unit. In late January 2017, SPC KR went to appellant’s
home to play with his dog. After playing with the dog for approximately thirty
minutes, appellant placed the dog in his cage. Specialist KR testified appellant then
put his hand on her leg. She told him to move his hand, which he did briefly, but he
then moved his hand between her legs. Specialist KR then asked appellant to bring
the dog back into the room to play, which he did.

After beginning to play again with the dog, SPC KR testified appellant pulled
down her pants and underwear to her knees. Appellant then got on top of SPC KR
and penetrated her vulva with his fingers and tongue. Specialist KR testified she
tried to pull her pants back up but appellant touched her vagina and grabbed her
breast. Appellant then got off SPC KR and put the dog back in the cage. At that
point SPC KR pulled her pants up, grabbed her keys, and headed towards the door.
Before leaving, SPC KR testified appellant picked her up and said, “[w]hy did you
come over here looking like that,” “[y]ou’re the reason why I’m horny,” and, “[t]his
is your fault.”

Approximately two weeks later, SPC KR reported the incident to a friend in
the barracks, Sergeant (SGT) CC. Eventually, SPC KR filed an unrestricted report
and made a three-page written statement to the Army Criminal Investigation
Command (CID) in mid-April 2017.

? A military judge sitting as a general court-martial convicted appellant, contrary to
his pleas, of one specification of abusive sexual contact and two specifications of
sexual assault, in violation of Article 120, Uniform Code of Military Justice
[UCMJ], 10 U.S.C. § 920. Appellant was also convicted, in accordance with his
pleas, of one specification of wrongful use of a controlled substance in violation of
Article 112a, UCMJ, 10 U.S.C. § 912a. The military judge sentenced appellant to a
dishonorable discharge and confinement for twenty-four months. The convening
authority approved the adjudged sentence. This case is now before us for review
pursuant to Article 66, UCMJ.
CAMPBELL—ARMY 20180107
The Trial

At trial, SPC KR testified on direct examination regarding the sexual assault.
On cross-examination, the defense counsel questioned SPC KR about her motivation
for reporting the sexual assault and defense-perceived inconsistencies between her
trial testimony and her written statement to CID.

Following the defense cross-examination of SPC KR, the government moved
to admit SPC KR’s entire three-page CID statement as a prior consistent statement
under Mil. R. Evid. 801(d)(1)(B)(ii). The defense objected on the grounds of
hearsay and “[I]t’s cumulative.” The military judge admitted SPC KR’s entire three-
page written CID statement into evidence stating to the defense: “[y]ou did question
[SPC KR’s] credibility, so it’s a prior consistent statement.” The military judge did
not provide any further analysis for his ruling.

The Military Judge

Appellant was arraigned on 25 October 2017 and tried on 6-7 March 2018 at
Fort Rucker, Alabama. Lieutenant Colonel (LTC) Richard Henry was the military
judge at all proceedings in appellant’s case. At the time, LTC Henry was serving as
a military judge at Fort Benning, Georgia. As part of his duties, LTC Henry was
detailed to courts-martial at Fort Rucker.

Approximately a month after appellant’s court-martial, on 8 April 2018, LTC
Henry was removed from his position as a military judge. Thereafter, the then-
commander of the United States Army Legal Services Agency appointed Colonel
(COL) DR to conduct an investigation of LTC Henry pursuant to Army Reg. 15-6,
Boards, Commissions, and Committees: Procedures for Administrative
Investigations and Boards of Officers (1 Apr. 2016) [AR 15-6]. The investigating
officer concluded that LTC Henry engaged in “a personal and emotionally intimate
relationship with Mrs. [KC] between December 2017 - April 2018.”? Mrs. KC was

3 For a more detailed background of LTC Henry’s relationship with Mrs. KC, see
United States v. Springer, ARMY 20170662 _— M.J.__, 2020 CCA LEXIS 30
(Army Ct. Crim. App. 22 Jan. 2020). As we did in Springer, we take judicial notice
of various items related to LTC Henry’s relationship with Mrs. KC, located in two
records of trial from another court-martial, United States v. Rudometkin, ARMY
20180058, and United States v. Rudometkin, ARMY MISC 20180675. Three items
are particularly relevant to their relationship: (1) App. Ex. LXXIX, United States v.
Rudometkin, ARMY 20180058 (military judge’s findings of fact and conclusions of
law concerning LTC Henry’s inappropriate relationship); (2) transcript pages 1403-
1541, United States v. Rudometkin, ARMY 20180058 (Article 39(a), UCMJ, post-

(continued .. .)
CAMPBELL—ARMY 20180107

the wife of a trial counsel, CPT AC, assigned to the Fort Benning Office of the Staff
Judge Advocate (OSJA). Captain AC played no role in appellant’s court-martial.

LAW AND DISCUSSION
A. Military Judge’s Recusal

“When an appellant, as in this case, does not raise the issue of disqualification
until appeal, we examine the claim under the plain error standard of review.” United
States v. Martinez, 70 M.J. 154, 157 (C.A.A.F. 2011) (citing United States v. Jones,
55 M.J. 317, 320 (C.A.A.F. 2001)). “Plain error occurs when (1) there is error, (2)
the error is plain or obvious, and (3) the error results in material prejudice.” Jd.
(citing United States v. Maynard, 66 M.J. 242, 244 (C.A.A.F. 2008)).

“An accused has a constitutional right to an impartial judge.” United States v.
Butcher, 56 M.J. 87, 90 (C.A.A.F. 2001) (citations and internal quotation marks
omitted). In furtherance of this right, the President promulgated Rule for Courts-
Martial (R.C.M.) 902, which provides the framework for when a military judge must
be disqualified from participating in a court-martial. Rule for Courts-Martial
902(a)-(b) establishes grounds for disqualification when a military judge is either
actually biased or conflicted based on some specific grounds, or when the military
judge appears to lack impartiality under all the facts and circumstances. See also
Martinez, 70 M.J. at 157. Here, we focus on the military judge’s appearance of
impartiality.

“[A] military judge shall disqualify himself or herself in any proceeding in
which that military judge’s impartiality might reasonably be questioned.” R.C.M.
902(a) (emphasis added). To determine if a military judge should disqualify
himself, “the test is whether, taken as a whole in the context of this trial, a court-
martial’s legality, fairness, and impartiality were put into doubt” by the military
judge’s actions. United States v. Burton, 52 M.J. 223, 226 (C.A.A.F. 2000)
(citations and internal quotation marks omitted). When conducting this test, we
apply an objective standard of “any conduct that would lead a reasonable man
knowing all the circumstances to the conclusion that the judge’s impartiality might
reasonably be questioned.” United States v. Kincheloe, 14 M.J. 40, 50 (C.M.A.
1982) (citations and internal quotation marks omitted).

(. . . continued)

trial hearing related to LTC Henry’s relationship with Mrs. KC); and (3) Def. App.
C., United States v. Rudometkin, ARMY MISC 20180675 (Army administrative
investigation into LTC Henry’s relationship with Mrs. KC).
CAMPBELL—ARMY 20180107

If we determine the military judge should have disqualified himself, we then
analyze the facts to determine if the error was harmless. “In a plain error context we
look to see if the error materially prejudiced the substantial rights of the appellant”
pursuant to Article 59(a), UCMJ. Martinez, 70 M.J. at 159.

Even absent material prejudice to a substantial right pursuant to Article 59(a),
UCMBJ, a judge’s failure to disqualify himself may still require a remedy after
applying the test laid out in Liljeberg v. Health Services Acquisition Corp., 486 U.S.
847, 862-64 (1988). See Martinez, 70 M.J. at 159. In Liljeberg, the Supreme Court
considered three factors in determining “whether a judgment should be vacated”
based on a judge’s appearance of partiality: “[1] the risk of injustice to the parties
in the particular case, [2] the risk that the denial of relief will produce injustice in
other cases, and [3] the risk of undermining the public’s confidence in the judicial
process.” 486 U.S. at 864. The CAAF applies the same three-part test in analyzing
cases involving a military judge’s appearance of partiality pursuant to R.C.M.
902(a). See United States v. Quintanilla, 56 M.J. 37, 45 (C.A.A.F. 2001).

We therefore initially ask ourselves whether a reasonable person, knowing all
the circumstances, would question LTC Henry’s impartiality and, if so, is a remedy
required? For the reasons set out below, we answer the first question in the negative
and therefore need not reach the second question.

In considering whether a reasonable person would question LTC Henry’s
impartiality, we note the following relevant facts and circumstances: (1) the locality
of appellant’s court-martial (Fort Rucker, Alabama instead of Fort Benning,
Georgia, where CPT AC was assigned); (2) CPT AC’s lack of participation in
appellant’s court-martial; (3) CPT AC’s assignment as a prosecutor in a different
OSJA than the one prosecuting appellant’s case; and (4) the lack of similarity
between the charges in appellant’s case and the nature of LTC Henry’s undisclosed
conduct. Based on these facts and circumstances, we find that a reasonable person
would have no reason to question LTC Henry’s involvement or impartiality in
appellant’s case. Accordingly, we find LTC Henry was not disqualified from acting
as the military judge in appellant’s court-martial.‘

As we find that LTC Henry was not disqualified from acting as the military
judge in appellant’s case, we need not conduct an Article 59(a), UCMJ, analysis, nor
analyze the three factors identified in Liljeberg.

‘In contrast to Springer, ARMY 20170662 __M.J. ___, 2020 CCA LEXIS 30, we
specifically find CPT AC had no involvement with appellant’s case. We made a
similar finding in United States v. Anderson, ARMY 20170158, MJ. , 2020
CCA LEXIS 35 (Army Ct. Crim. App. 5 Feb. 2020), where LTC Henry was the
military judge, but CPT AC had no involvement in the case.
CAMPBELL—ARMY 20180107
B. Prior Consistent Statements

We next address the military judge’s ruling to admit SPC KR’s entire three-
page statement to CID as a prior consistent statement under Mil. R. Evid.
801(d)(1)(B)(ii). We review a military judge’s decision to admit or exclude
evidence for an abuse of discretion. United States v. Barnett, 63 M.J. 388, 394
(C.A.A.F. 2006). (citation omitted). “An abuse of discretion occurs when the trial
court’s findings of fact are clearly erroneous or if the court’s decision is influenced
by an erroneous view of the law.” United States v. Freeman, 65 M.J. 451, 453
(C.A.A.F. 2008) (citation omitted). As we explain below, we find the military judge
erroneously admitted SPC KR’s entire CID statement, and find the error prejudiced
appellant.

1. The Amended Rule

In 2016, the President amended Mil. R. Evid. 801(d)(1)(B) to mirror the
federal rule. See Exec. Order No. 13,730, 3 C.F.R. § 492 (2016); Federal Rule of
Evidence (Fed. R. Evid.) 801(d)(1)(B). We discussed the amendment at length in
this court’s opinion in United States v. Finch, 78 M.J. 781 (Army Ct. Crim. App.
2019), affirming the result, M.J.__,2020 CAAF LEXIS — (C.A.A.F. 3 Mar.
2020).° This amendment split the previous rule into two parts to determine if a prior
consistent statement may be admitted into evidence. The first part permits the use of
a prior consistent statement to rebut a “charge that the declarant recently fabricated
.... or acted from a recent improper influence or motive... testifying.” Mil. R.
Evid. 801(d)(1)(B)(i).

At issue in this case is the second part of the rule, which permits the use of a
prior consistent statement to rehabilitate the credibility of a witness “attacked on
another ground.” Mil. R. Evid. 801(d)(1)(B)Gi). A prior consistent statement
admitted into evidence under part (ii) can be used as substantive evidence as well as
to rehabilitate the witness’ credibility. See Manual for Courts-Martial, United
States (2016 ed.), at A22-61; see also Fed. R. Evid. 801(d)(1)(B)(ii1) advisory
committee notes to 2014 amendments (stating “prior consistent statements otherwise
admissible for rehabilitation are now admissible substantively as well.”).

For a prior consistent statement to be admissible under Mil. R. Evid.
801(d)(1)(B)(ii), it must satisfy the following:

(1) the declarant of the out-of-court statement must
testify, (2) the declarant must be subject to cross-

>In Finch, the Court of Appeals for the Armed Forces found the military judge erred
in admitting the victim’s entire prior statement under Mil. R. Evid. 801(d)(1)(B), but
found the error did not materially prejudice appellant’s substantial rights. Jd. at *2.
CAMPBELL—ARMY 20180107

examination about the prior statement, (3) the
statement must be consistent with the declarant’s
testimony, (4) the declarant’s credibility as a witness
must have been “attacked on another ground” other
than the ones listed in [Mil. R. Evid.] 801(d)(1)(B)(),
and (5) the prior consistent statement must actually be
relevant to rehabilitate the witness’s credibility on the
basis on which he or she was attacked.

Finch, _M.J.__, 2020 CAAF LEXIS __ , at *12.

“Only those portions of a witness’s prior statement that are consistent with
the witness’s courtroom testimony may be deemed admissible at trial.” Jd. at *2
(emphasis in original). “It is not the case that ... all prior consistent statements
are now automatically admissible following impeachment on any ground. Rather the
military judge must make a determination that each prior consistent statement is
relevant to rehabilitate the witness on one of the grounds cited in Mil. R. Evid.
801(d)(1).” Jd. at 11. The proponent of the prior consistent statement must
articulate “the relevancy link between the prior consistent statement and how it will
rehabilitate” the witness’s in-court testimony “with respect to the particular type of
impeachment that has occurred.” Jd. at 12 (citation omitted).

“[T]o be admissible for rehabilitation, a prior consistent statement must
satisfy the strictures of [Mil. R. Evid. 403].” Finch, 78 M.J. at 792. “Where a
military judge properly conducts the balancing test under Mil. R. Evid. 403, we will
not overturn his decision unless there is a clear abuse of discretion.” United States
v. Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010) (quoting United States v. Ruppel, 49
M.J. 247, 251 (C.A.A.F. 1998)).

2. Attacks on Specialist KR’s Credibility

We now address whether the military judge’s one-sentence ruling that the
defense counsel “did question [SPC KR’s] credibility, so [her entire CID statement
was admissible as] a prior consistent statement” was an abuse of his discretion. The
military judge’s ruling fails to provide any detail as to how SPC KR’s credibility
was “attacked on another ground” and how her CID statement rehabilitated her in-
court testimony. The military judge also failed to conduct a balancing test under
Mil. R. Evid. 403 prior to admitting SPC KR’s entire three-page CID statement.
Accordingly, we afford the military judge’s ruling little deference. See United
States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000).°®

® We emphasize our Superior Court’s first footnote in Finch which reminds military

(continued . . .)
CAMPBELL—ARMY 20180107

After our close review of the record, we identified four grounds where the
defense counsel attempted to attack SPC KR on another ground regarding an alleged
inconsistency between her trial testimony and her written CID statement.’ We
address each ground in turn and find the military judge abused his discretion
admitting SPC KR’s entire three-page CID statement under Mil. R. Evid.
801(d)(1)(B)(ii) and Mil. R. Evid. 403.

First Ground

The defense attempted to attack SPC KR regarding the placement of
appellant’s hands during the sexual assault. On direct examination, SPC KR
testified, “[appellant] was using one hand touching my vagina, and the other hand
under my shirt and my bra and grabbed my breast.” On cross-examination, the
defense counsel asked SPC KR, “[You] don’t even remember where his hands were.”

Specialist KR replied, “I said one hand was used to touch and go into my
vagina, the other hand was used to go under my shirt.” The defense countered with,
“But you told CID that [appellant] had both hands holding you down, above your
chest.” Specialist KR stated she did not recall making that statement to CID. The
defense counsel then retracted his cross-examination question and agreed with SPC
KR on this point stating, “I apologize, it wasn’t in your [CID] statement.” The
defense elicited no inconsistency requiring the rehabilitation of SPC KR’s

(. . . continued)

judges of the importance of placing his or her reasoning behind the resolution of an
evidentiary ruling on the record. Finch, M.J.__, 2020 CAAF LEXIS __, at *13
n. 1. We further expound upon that concept by reminding military judges to require
the proponent of the evidence to establish “the relevancy link between the prior
consistent statement and how it will rehabilitate the witness with respect to the
particular type of impeachment that has occurred.” Jd. at *12.

7 We pause to briefly discuss a fifth ground. During direct examination, SPC KR
testified she went to appellant’s house to play with his dog because she had recently
learned that her dog had died. During cross-examination, the defense counsel asked
SPC KR whether her dog had died earlier than she initially claimed during her direct
examination. The defense counsel insinuated SPC KR went to appellant’s house to
see appellant, and not because she was sad about the death of her dog. Establishing
an inconsistent or consistent statement regarding the death of SPC KR’s dog and her
alleged reason(s) for going to appellant’s house, however, was problematic because
her CID statement merely stated that her dog had “recently passed away.” The
minimal probative value, if any, regarding the death of SPC KR’s dog and her
alleged reason(s) for going to appellant’s house did not warrant admitting her entire
statement to CID under Mil. R. Evid. 801(d)(1)(B)(i1) or Mil. R. Evid. 403.
CAMPBELL—ARMY 20180107

credibility and her prior CID statement should not have been admitted based on this
line of questioning.

Second Ground

The defense attempted to attack SPC KR regarding the details of her report to
SGT CC. During cross-examination, the defense counsel asked SPC KR, “[SGT CC]
overheard you crying and he came to check on you, that’s how it happened, right?”
Specialist KR replied, “I don’t think he overheard me crying. I think he was just
coming by to speak or something. And that day I was crying, and when I opened the
door my eyes were red and it did look like I was crying, and I think that’s why he
asked what was wrong.” The defense counsel then asked SPC KR, “[b]ut you told
CID that you went over to his room; that’s how it began, that’s how you eventually
report it. Do you remember that?” Specialist KR replied that she did not remember
telling that to CID.

The only mention of SGT CC in SPC KR’s written statement to CID is the
following:

I told my neighbor in the barracks, [SGT CC]. I asked
him if I seemed like I was a person who would have sex
with anyone. He asked me why I was asking a question
like that. I tried to back out of it but I got upset and told
him what was going on.

Specialist KR’s written CID statement does not clarify whether SGT CC
overheard her crying and came to her room or whether she went to his room. Based
on this lack of clarification SPC KR’s CID statement was not a prior consistent
statement in relation to her trial testimony. It does clarify, however, that SPC KR
did not tell CID that she went to SGT CC’s room, as the defense counsel suggested
she had stated to CID during his cross-examination.

To the extent there is any probative value in rebutting a defense counsel
question, the appropriate remedy would have been to admit into evidence the portion
of SPC KR’s written statement, in block quotes above, which precisely related to
and rebutted the specific manner in which SPC KR’s credibility was attacked. See
Finch, _M.J.__, 2020 CAAF LEXIS __, at *2. Under the specific circumstances,
admitting SPC KR’s entire CID statement, which recounted the entire offense, was
an overly expansive application of part (ii) of the rule.
CAMPBELL—ARMY 20180107
Third Ground

The defense counsel attempted to attack SPC KR’s testimony regarding
whether or not she asked appellant to put the dog away. On cross-examination, the
defense counsel asked SPC KR whether she told appellant she was done playing with
the dog. Specialist KR disagreed. The defense counsel then asked her, “You didn’t
tell CID ‘My back was starting to hurt and [appellant] noticed I was struggling to
hold the dog?’” Specialist KR agreed that she did make that statement to CID.

The exact statement she made to CID is as follows:

My back was starting to hurt and [appellant] noticed that I
was struggling a little with the dog. [Appellant] called the
dog off of me and put him back in his cage. I told him he

didn’t have to do that but he insisted anyways.

Specialist KR’s CID statement clarifies that she did not tell CID that she told
appellant to put the dog away, as the defense counsel asserted she had.

On this minor point, SPC KR’s statement to CID may have rehabilitated SPC
KR’s credibility. However, the appropriate remedy would have been to admit into
evidence the portion of SPC KR’s statement, in block quotes above, which precisely
related to and rebutted the specific manner in which SPC KR’s credibility was
attacked. The highly prejudicial nature of SPC KR’s entire three-page CID
statement, which recounted the sexual assault, substantially outweighed the minimal
probative value of the evidence regarding the narrow and relatively inconsequential
issue as to whether SPC KR asked appellant to put the dog away.

Fourth Ground

Lastly, the defense counsel attempted to attack SPC KR’s testimony regarding
the size of the sofa upon which the alleged sexual assault occurred. On cross-
examination, SPC KR testified the sofa had three cushions. The defense counsel
questioned her, “You never said it was more of a loveseat at some point?” Specialist
KR stated she did not recall stating that, but then after reviewing her CID statement
she agreed.

Specialist KR’s exact words in her CID statement are, “It was more of a
loveseat that could only fit two people.” However, later in her CID statement she
stated, “I may have been wrong about the size of the couch because my legs were
straight.”

Specialist KR’s testimony that the sofa had three cushions and later agreement
that the couch was a loveseat does not clearly resolve whether she was making a

10
CAMPBELL—ARMY 20180107

consistent or inconsistent statement. Agreeing that the sofa was a loveseat does not
equate to SPC KR clearly adopting that the sofa had two cushions as opposed to
three cushions. Based on her agreement with the defense counsel as to the loveseat
status of the sofa, however, SPC KR’s prior consistent statement to CID had already
been elicited during the defense cross-examination so there was little, if any,
probative value to the government attempting to rehabilitate her credibility on this
point.

Again, the appropriate remedy, if any, would have been to admit into evidence
the portion of SPC KR’s statement, in quotes above, which precisely related to and
rebutted the specific manner in which SPC KR’s credibility was attacked regarding
the sofa. The highly prejudicial nature of SPC KR’s entire three-page CID
statement, which recounted the sexual assault, substantially outweighed the minimal
probative value of the evidence swirling around SPC KR’s uncertainty regarding
whether she “may have been wrong about the size of the couch” which was
contained in her prior CID statement and then lingered into her trial testimony.

3. Prejudice

The possible inconsistences raised by the defense counsel regarding SPC KR’s
trial testimony and her prior CID statement focused on narrow collateral matters
which were relatively inconsequential. In other words, the defense’s very limited
attack on SPC KR’s credibility did not relate to the prejudicial portion of her three-
page CID statement, her recounting of the sexual assault, which was admitted as
substantive evidence to convict appellant.

Finding the admission of SPC KR’s entire three-page CID statement was
error, we must determine if the error was harmless. See UCMJ art. 59(a). The
government bears the burden of demonstrating that the admission of erroneous
evidence is harmless. See United States v. Flesher, 73 M.J. 303, 318 (C.A.A.F.
2014). We must determine “whether the error had a substantial influence on the
findings.” United States v. Kohlbek, 78 M.J. 326, 334 (C.A.A.F. 2019) (citation
omitted) (internal quotation marks omitted). “We evaluate prejudice from an
erroneous evidentiary ruling by weighing (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.” Jd. at 334 (citing United States v.
Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999) (further citations omitted). After weighing
these factors, we conclude appellant was prejudiced by the erroneous admission of
SPC KR’s entire CID statement which substantially impacted the findings.

The government’s case was weak. Absent SPC KR’s CID statement, the
government’s case consisted entirely of her testimony. As in Finch, the government
possessed no “forensic evidence, physical evidence, or witnesses who had first-hand
information” about the offense. Finch, _M.J.__, 2020 CAAF LEXIS __, at *16.

11
CAMPBELL—ARMY 20180107

No independent corroborating evidence existed. Meanwhile, the defense presented
witness testimony contradicting SPC KR’s testimony and undermining her
credibility. The materiality and quality of SPC KR’s CID statement was substantial
because it “went to the heart of the matter in dispute,” addressing the material
elements of the sexual assault offenses, and it was considered for the truth of the
matter asserted. See, e.g. United States v. Frost, 79 M.J. 104, 112 (C.A.A.F. 2019).

We contrast appellant’s case with Finch. In Finch, the CAAF found the
victim’s CID interview, which was erroneously admitted in its entirety, contained
one portion that was particularly prejudicial. However, the CAAF explained the
prejudicial portion of the interview did not have a substantial influence on the
findings because that portion was a “mere passing reference in a very lengthy
video,” the government did not seek to “exploit” that portion at trial, the portion was
“imprecise,” and there was independent evidence of this prejudicial evidence.

Finch, _M.J. __, 2020 CAAF LEXIS __, at *18-19.

In appellant’s case, the prejudicial portion of SPC KR’s statement was her
recounting of the sexual assault, which consumed the majority of her statement, not
a “mere passing reference.” Also, SPC KR’s CID statement was not “imprecise.” In
fact, it precisely detailed the sexual assault, corroborating her in-court testimony.

Finally, the government counsel improperly exploited a portion of SPC KR’s
CID statement during the closing arguments on the merits. Defense counsel initially
argued in their closing that SPC KR only reported the sexual assault because SGT
CC reported it, and then she “was confronted by her command,” and “she found
herself in a trap.” This defense argument focused on SPC KR’s motive to fabricate.
In order for a prior consistent statement to be admissible to rebut a motive to
fabricate it must precede the alleged improper influence. See Frost, 79 M.J. at 110.
Specialist KR’s CID statement did not precede SGT CC’s report or the confrontation
by her command and it could not have been admitted as a prior consistent statement
under Mil. R. Evid. 801(d)(1)(B)(i).

During the government’s closing rebuttal argument, counsel highlighted for
the military judge, “on the third page [of her CID statement that]... ‘[SPC KR]
decided to go unrestricted because [SPC KR] realized that this wasn’t [her] fault
through treatment.” The government’s use of her CID statement to proffer a
nonbiased neutral reason for her to report the offense undercut the defense theory
that she possessed a motive to fabricate. Absent the entire statement’s erroneous
substantive admission under Mil. R. Evid. 801(d)(1)(B)(ii), it would have been
impermissible for the military judge to consider that portion of the statement to
rebut the defense’s asserted motive to fabricate. The military judge did not put any
findings of fact or particularized conclusions of law on the record with regard to this
complex evidentiary issue.

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CAMPBELL—ARMY 20180107

In conclusion, the admission of SPC KR’s entire three-page CID statement
served only to bolster her trial testimony and it possessed minimal, if any,
rehabilitative value as to her credibility regarding any alleged inconsistences
regarding narrow collateral matters raised by the defense during her cross-
examination. After applying the Kerr factors, in light of the whole record, we find
the erroneous admission of her entire CID statement substantially influenced the
outcome of the trial and prejudiced appellant.

CONCLUSION

Having considered the entire record, the findings of guilty of the
Specifications of Charge I, and Charge I are SET ASIDE. The remaining findings of
guilty are AFFIRMED. The sentence is SET ASIDE. The same or a different
convening authority may: 1) order a rehearing on Charge I and its specifications and
the sentence; or 2) dismiss Charge I and its specification and order a rehearing on
the sentence only.

Senior Judge BURTON and Judge RODRIGUEZ concur.

FOR THE COURT:

COLM H. SQUIRES,
Clerk of Court

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