UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
KRIMBILL,! BROOKHART, and ARGUELLES?.
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist MICHAEL P. WHITEEYES
United States Army, Appellant
ARMY 20190221
Headquarters, Seventh Army Training Command
Joseph A. Keeler, Military Judge
Lieutenant Colonel Joseph B. Mackey, Staff Judge Advocate (pretrial)
Lieutenant Colonel John J. Merriam, Staff Judge Advocate (post-trial)
For Appellant: Lieutenant Colonel Angela D. Swilley, JA; Major Joseph C. Borland,
JA; Captain Paul T. Shirk, JA (on brief); Colonel Michael C. Friess, JA; Lieutenant
Colonel Angela D. Swilley, JA; Captain Paul T. Shirk, JA (on reply brief).
For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Major Dustin B. Myrie, JA; Captain Marc J. Emond, JA (on brief).
15 December 2020
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
ARGUELLES, Judge:
An enlisted panel sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of sexual abuse of a child, in violation of
Article 120b, Uniform Code of Military Justice, 10 U.S.C. § 920b (2016) [UCMJ].?
' Chief Judge (IMA) Krimbill decided this case while on active duty.
* Judge Arguelles decided this case while on active duty.
3 Appellant was acquitted of one specification of rape of a child and one
specification of sexual abuse of a child, in violation of Article 120b, UCMJ.
WHITEEYES—ARMY 20190221
The convening authority approved the adjudged sentence of a dishonorable
discharge, confinement for five years, total forfeiture of all pay and allowances, and
reduction to the grade of E-1.4
The case is before the court for review pursuant to Article 66, UCMJ.
Appellant raises four assignments of error, one of which merits partial relief.°
BACKGROUND
After appellant and MM were married in December of 2017, MM and her
eighteen-month-old daughter, EM, moved in with appellant at Fort Drum. As EM’s
biological father was not “in the picture,” appellant served as a father figure to EM,
to include bathing, dressing, and changing her diapers. In early 2018, however,
appellant made several inappropriate comments regarding EM. Specifically, he said
that she looked like she had “cum dripping from her face” when she spilled milk and
that it looked like she was “sucking a dick” when she put a toy carrot in and out of
her mouth. Although MM chastised him for these comments, she continued to allow
appellant to change EM’s diapers and otherwise care for her.
Shortly after the family moved to Vilseck, Germany, in July 2018, MM
confronted appellant after finding pornography on his computer. MM also contacted
appellant’s team leader, Sergeant (SGT) KS, which prompted appellant to send the
following text message to SGT KS:
Hey [SGT KS] there is a real reason why my wife is
leaving she believes that I sexually touched her daughter
“ The promulgating order contains numerous errors that require correction. First, it
incorrectly reflects the initials of the victim. We direct that it be modified to change
the victim’s initials from “E.W.” to “E.M.” Additionally, the promulgating order
fails to include the portion of appellant’s adjudged sentence of total forfeiture of all
pay and allowances, which was approved by the convening authority on 27 March
2020. We direct that the promulgating order be modified to correctly reflect this
portion of the adjudged sentence. Finally, the promulgating order is erroneously
dated 7 February 2020 rather than the date the convening authority took action, 27
March 2020. We direct that the date of the promulgating order be corrected to 27
March 2020.
> We have also given full and fair consideration to the matters personally raised by
appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and
find them to be without merit.
WHITEEYES—ARMY 20190221
and as a concerned parent I believe that she needs to get
tested for that I don’t want risk of losing my job if it’s
true or not
And I would never do anything to hurt her daughter
After appellant’s leadership team forwarded his text to Army Criminal
Investigation Command (CID), MM told CID that she did not believe appellant
touched EM in a sexual manner. MM also had EM physically examined, which
revealed no indications of sexual abuse. Shortly thereafter, MM and EM left
Germany and moved back to Alabama.
Army CID interviewed appellant twice. During the first interview in August
of 2018, although his answers were somewhat confusing and non-responsive,
appellant stated that he did not believe EM was safe around him and “I mean yeah
I’m going to have urges, but I think that I need to stop it.” Appellant later said that
it was safe for EM to be around him, but that he wanted some distance from her to
“prevent [him] from touching her or thinking in a sexual way to her.” Appellant
denied touching EM and requested a polygraph.
During his polygraph examination interview a month later, appellant stated
that he sexually abused EM on two separate occasions while changing her diaper on
top of a dresser that her grandfather made. The first time occurred in May or June
of 2018 when appellant spread EM’s labia apart and blew into her vagina. After
further questioning, appellant asserted that he was just being “curious” and
“want[ing] to see what her reaction would be.” Appellant further stated that he
stopped the abuse after realizing “this is something I should not be doing.” Later in
the interview appellant described another occasion on which he penetrated EM’s
vagina with the tip of his pinky finger, which he acknowledged was wrong and
sexual in nature. Toward the end of the interview appellant retracted his claim about
digitally penetrating EM but again admitted that he blew into her vagina.
After returning to Alabama, MM observed EM attempting to insert several of
her toys into her vagina and running away and hiding while saying “shh, he’s
coming.” At trial, the defense expert opined that there was no nexus between EM’s
sexualized behavior and appellant’s alleged misconduct.
LAW AND DISCUSSION
A, Military Rule of Evidence 404(b)
Prior to trial, the defense filed a motion to exclude several of appellant’s
statements under Military Rule of Evidence (Mil. R. Evid.) 404(b), which the
military judge granted in part and denied in part. Appellant now specifically claims
WHITEEYES—ARMY 20190221
that the military judge erroneously failed to exclude his “sucking a dick” and “cum
dripping down her face” comments.
To be admissible under Mil. R. Evid. 404(b), a rule of inclusion, evidence of
prior misconduct must be offered for a valid purpose and not to demonstrate the
accused’s criminal propensities. United States v. Tyndale, 56 M.J. 209, 212
(C.A.A.F. 2001); United States v. Jenkins, 48 M.J. 594, 597 (Army Ct. Crim. App.
1998). Our superior court has established a three-part test for the admissibility of
such evidence: (1) the evidence must reasonably tend to prove that the accused
committed the uncharged crimes, wrongs, or acts; (2) the evidence must make some
fact that is of consequence more or less probable; and (3) the probative value of the
evidence must not be substantially outweighed by the danger of unfair prejudice.
United States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989).
We review a military judge’s admission of evidence under Mil. R. Evid.
404(b) for abuse of discretion. United States v. Phillips, 52 M.J. 268, 272 (C.A.A.F.
2000) (citation omitted). The abuse of discretion standard is deferential, predicating
reversal on more than a mere difference of opinion. United States v. Stellato, 74
M.J. 473, 480 (C.A.A.F. 2015); United States v. Gore, 60 M.J. 178, 187 (C.A.A.F.
2004) (“[T]he abuse of discretion standard of review recognizes that a judge has a
wide range of choices and will not be reversed so long as the decision remains
within that range.”) (citation omitted).
As to the first Reynolds prong, the government presented sufficient evidence
that appellant made the statements at issue. See United States v. Dorsey, 38 M.J.
244, 246 (C.A.A.F. 1993) (noting the standard for meeting the first Reynolds factor
is “quite low”); United States v. Swift, ARMY 20100196, 2017 CCA LEXIS 580 at
*10-11 (Army Ct. Crim. App. 29 Aug. 2017) (mem. op.) (stating the testimony of
the victim alone was sufficient to support a finding that the appellant committed the
instances of uncharged misconduct by a preponderance of the evidence).
Regarding the second factor, evidence of other uncharged acts is admissible to
help determine intent, especially in a case like this one, where the “issue involves
the actor’s state of mind and the only means of ascertaining that mental state is by
drawing inferences from conduct.” United States v. Humphrey, 57 M.J. 83, 91
(C.A.A.F. 2002) (quoting United States v. Tanksley, 54 M.J. 169, 176 (C.A.A.F.
2000)); see also United States v. Rappaport, 22 M.J. 445, 447 (C.M.A. 1986)
(discussing the relevance of Mil. R. Evid. 404(b) intent evidence and noting it is
dependent on whether an appellant had the same state of mind in both the charged
and uncharged acts); Jenkins, 48 M.J. at 599 (noting that while there is no
requirement that the uncharged acts be identical to the charged act, there must still
be “sufficient similarity to logically conclude that a similar intent existed”).
WHITEEYES—ARMY 20190221
Applied here, the military judge did not abuse his discretion in determining
that the two comments evidenced appellant’s “state of mind about Miss [EM] — that
she is a sexual object” and “show a motive and intent and rebuts [appellant’s]
comments in the interview ... that what he did to Miss [EM] was out of curiosity,
accident or to see her reaction.” Put another way, appellant’s state of mind in
making the sexually charged comments about EM bears a sufficient similarity to the
state of mind required to sexually abuse her, making it more probable that he
committed the charged offenses with the intent “to arouse or gratify the sexual
desires of any person.” UCMJ art. 120(b).
As the military judge correctly noted in his written ruling, the factors to be
considered in the analysis of the third Reynolds prong include, inter alia, the
strength of the proof of the prior act, the probative weight of the evidence, the
potential to present less prejudicial evidence, the possible distraction to the fact-
finder, the time needed to prove the prior conduct, the temporal proximity of the
prior event, the frequency of the acts, the presence of any intervening circumstances,
and the relationship between the parties. United States v. Barnett, 63 M.J. 388, 396
(C.A.A.F. 2006) (citations omitted). Applying these considerations to the facts
before us, we find that the military judge did not abuse his discretion in finding that
the probative value of appellant’s two sexualized comments about EM was not
substantially outweighed by the danger of unfair prejudice. See United States v.
Mann, 26 M.J. 1, 4 (C.M.A. 1988) (stating that where the appellant claimed that he
only innocently bathed or tickled the victim, “intent in doing these acts had become
a necessary and contested issue in this case which enhanced the probity of the
challenged evidence and justified its admission under Mil. R. Evid. 403”) (citations
omitted).
B. Military Rule of Evidence 304(c)
Military Rule of Evidence 304{c)(1) mandates that “[a]n admission or a
confession of the accused may be considered as evidence against the accused on the
question of guilt or innocence only if independent evidence, either direct or
circumstantial, has been admitted into evidence that would tend to establish the
trustworthiness of the admission or confession.” In pertinent part, Mil. R. Evid.
304(c)(4) states that “[t]he independent evidence necessary to establish
corroboration need not be sufficient of itself to establish beyond a reasonable doubt
the truth of the facts stated in the admission or confession... . [but] need raise only
an inference of the truth of the admission or confession.” We review a military
judge’s Mil. R. Evid. 304(c) ruling for abuse of discretion. United States v. Jones,
78 M.J. 37, 41 (C.A.A.F. 2018) (citation omitted).
Prior to trial, the defense moved to exclude several of appellant’s admissions
under Mil. R. Evid. 304(c). At issue now are the following statements, which the
military judge allowed into evidence: (1) appellant’s admission in his first CID
WHITEEYES—ARMY 20190221
interview that he had “urges” towards EM; and (2) appellant’s admissions in the
second CID interview that he blew into and digitally penetrated EM’s vagina.
With respect to the “urges” statement, at first blush it is not entirely clear that
this constitutes an “admission,” as appellant did not confess to acting on his urges.
In any event, the military judge noted that he had already found this statement to be
admissible under Mil. R. Evid. 404(b) as evidence of appellant’s sexually related
state of mind towards EM. For all the reasons set forth above, this ruling was not an
abuse of discretion, and indeed appellant is not challenging it on appeal.
Alternatively, the military judge ruled that appellant’s sexually charged statements
about the milk running down EM’s face and her eating of a carrot corroborated this
“urges” admission.°
As to appellant’s admissions during his second CID interview, the military
judge found them to be corroborated by the following independent evidence: (1)
EM’s post-incident behavior in which she would get naked, remove her diapers, and
poke objects and toys into her vagina; (2) appellant’s description of the location of
the alleged offenses as a changing table on a dresser made by EM’s grandfather; and
(3) appellant’s sexually charged statements about the milk and carrot.
Our superior court has recently reiterated that under Mil. R. Evid. 304(c)(4),
the quantum of independent corroborating evidence, which can be either direct or
circumstantial, need only be “slight.” Jones, 78 M.J, at 42 (quoting United States v.
Adams, 74 M.J. 137, 140 (C.A.A.F. 2015)}. As a panel of this court explained:
“[NJo mathematical formula exists to measure sufficient
corroboration.” United States v. Melvin, 26 M.J. 145, 146
(C.M.A. 1988). However, the “inference [of truthfulness]
may be drawn from a quantum of corroborating evidence
that [our Superior Court] has described as ‘very slight.’”
° Because Mil. R. Evid. 404(b) provided an alternate and independent basis for the
admission of the “urges” statement, we question whether we even need to address
appellant’s Mil. R. Evid. 304(c) claim with respect to this same evidence. Cf.
United States v. Benton, 54 M.J. 717, 723 (C.A.A.F. 2001) (noting that because it is
a rule of admissibility, Mil. R. Evid. 304 allows for the admission of statements
otherwise excludable under the hearsay rules). This is especially true given that the
military judge instructed the members that this evidence could only be considered
for the limited purpose of showing appellant’s state of mind and intent, and
rebutting his comments that he acted out of curiosity, accident, or to see EM’s
reaction. In any event, as discussed infra, we find that the military judge’s alternate
Mil. R. Evid. 304 ruling was not an abuse of discretion.
WHITEEYES—ARMY 20190221
United States v. Arnold, 61 M.J. 254, 257 (C.A.A.F. 2005)
(quoting Melvin, 26 M.J. at 146). The reason for this
modest level of corroboration is rooted in the practical
purpose for the rule, which is to establish the reliability of
the confession so as to prevent convictions based on false
confessions. See United States v. Yeoman, 25 M.J. 1, 4
(C.M.A. 1987).
Swift, 2017 CCA LEXIS 580 at *19.
Standing alone, appellant’s sexually charged comments about his stepdaughter
drinking milk and eating a carrot satisfy the “very slight” quantum of corroborating
evidence necessary to establish the reliability of all the admissions at issue. See
Jones, 78 M.J. at 42 (stating that although corroborating circumstantial evidence
may not prove an appellant’s guilt beyond a reasonable doubt, it still supports an
inference that he was speaking the truth when he confessed). As such, the military
judge did not abuse his discretion in overruling appellant’s Mil. R. Evid. 304(c)
objections.
Moreover, the fact that appellant specifically described the location of the
alleged offenses further corroborates the admissions he made in his second
interview. See United States v. Arno, ARMY MISC 20180699, 2019 CCA LEXIS 86
at *5 (Army Ct. Crim. App. 26 Feb. 2019) (per curiam) (“When an accused confesses
to committing a certain crime in a certain place in a certain manner, evidence that
the accused was actually at that place, and had the specific motive to commit that
crime, can be considered when determining whether the confession is trustworthy.”).
Finally, even though a defense expert testified that there was no nexus between
EM’s insertion of items into her vagina and the alleged abuse, this opinion evidence
goes more to the weight of the confession than to its admissibility. See Mil. R.
Evid. 304(c)(4) (“The amount and type of evidence introduced as corroboration is a
factor to be considered by the trier of fact in determining the weight, if any, to be
given to the admission or confession.”).’
C. Panel Member Challenge
During individual voir dire Sergeant Major (SGM) DR described his training
and previous service as a Sexual Assault Response Coordinator (SARC) and Unit
’ Appellant’s claim that the military judge “did not even wait to hear expert
testimony regarding this behavior” is incorrect. The military judge heard the
defense expert’s nexus testimony in an Article 39(a), UCMJ, hearing on the first day
of trial, before issuing his Mil. R. Evid. 304 ruling.
WHITEEYES—ARMY 20190221
Victim Advocate (UVA). While serving as a SARC—an additional duty he had not
performed for approximately two years by the time of appellant’s court-martial—
SGM DR interacted with three adult victims and explained that his role was to act as
a “neutral party” to provide support and assist them in getting the “help they need.”
He did not, however, accompany or assist any of the three alleged victims through
the court-martial process. When asked by the defense counsel “was there ever
someone that you didn’t believe what they were saying,” SGM DR replied “No,
ma’am.” The military judge subsequently followed up:
Q. Okay. So I--just one question relating to the defense
asked you was there any of these three that you did not
believe. It seemed like what you were describing before is
your job wasn’t necessarily to believe or not believe
whatever they were saying, it’s just to help them through
the system?
A. Yes, sir.
Q. Is that correct? That it was really just to help them
through the system?
A. That is correct, sir.
Likewise, when questioned by trial counsel, SGM DR confirmed that he could
put aside his SARC experiences, follow the military judge’s instructions, and base
his decision only on the evidence presented at trial rather than his own personal
experiences.
Defense counsel challenged SGM DR for cause, asserting both actual and
implied bias. Recognizing the liberal grant mandate, the military judge nevertheless
denied the challenge, finding that “if objectively viewed through the eyes of the
public, [ ] they would not have a substantial doubt about the fairness of the
accused’s court-martial and the composition of the jury.” Among other things, the
military judge noted that SGM DR: (1) had a very limited number of victim
interactions; (2) acknowledged that as a SARC he was a neutral party who did not
determine believability; (3) confirmed that he would follow the judge’s instructions;
and (4) reiterated that he would set aside his prior SARC experience and decide the
case solely on the facts he heard at trial.
Appellant now argues only that the military judge erred in failing to find that
SGM DR was impliedly biased. We disagree. Rule for Courts-Martial (R.C.M.)
912(f)(1)(N) provides that a member shall be excused for cause whenever it appears
the member “[s]hould not sit as a member in the interest of having the court-martial
free from substantial doubt as to legality, fairness, and impartiality.” This rule
WHITEEYES—ARMY 20190221
encompasses challenges based upon both actual and implied bias. United States v.
Elfayoumi, 66 M.J. 354, 356 (C.A.A.F. 2008) (citing United States v. Clay, 64 M.J.
274, 276 (C.A.A.F. 2007)).
Implied bias exists when most people in the member’s position would be
biased, and is assessed on the totality of the circumstances. United States v. Strand,
539 M.J. 455, 459 (C.A.A.F. 2004). The test for implied bias is objective, “viewed
through the eyes of the public, focusing on the appearance of fairness.” United
States v. Bagstad, 68 M.J. 460, 462 (C.A.A.F. 2010) (quoting Clay, 64 M.J. at 276).
The liberal grant mandate requires military judges to “err on the side of granting a
challenge.” United States v. Peters, 74 M.J. 31, 34 (C.A.A.F. 2015).
We review rulings on challenges for implied bias based on a standard that is
“less deferential than abuse of discretion, but more deferential than de novo review.”
Peters, 74 M.J. at 33 (quoting United States v. Moreno, 63 M.J. 129, 134 (C.A.A.F.
2006)). This is because “cases of implied bias are based upon an objective test and
therefore the military judge is given less deference.” /d. at 34 (quoting United
States v. Miles, 58 M.J. 192, 194-95 (C.A.A.F. 2003)). Although a military judge is
not obligated to place his or her implied bias analysis on the record, “doing so is
highly favored and warrants increased deference from appellate courts.” United
States v. Dockery, 76 M.J. 91, 96 (C.A.A.F. 2017) (citing Clay, 64 M.J. at 277).
In United States v. Lugo, 2013 CCA LEXIS 40 at *5 (N.M. Ct. Crim. App. 29
Jan. 2013) (unpublished), a potential panel member acknowledged that her training
as a victim advocate required her to treat victims as if they were telling the truth.
Like SGM DR’s voir dire responses, the panel member in Lugo clarified that her role
as a victim advocate was only to provide support and access to services, and not to
determine whether any victim was actually telling the truth. Jd. And like SGM DR,
the panel member in Lugo confirmed that she could remain fair and impartial despite
her experiences. /d, at *5-6.
As is also the case here, in Lugo the record did not include specific details
about the member’s experiences as a victim advocate or how those experiences may
have impacted her perception of sexual assault offenders or victims. Id. at *4-8.
Our sister court held that, based on the totality of the circumstances, including the
absence of any evidence pertaining to the member’s experiences as a victim
advocate, the military judge did not abuse his discretion in denying the causal
challenge based on implied bias. Jd. at *8; see also United States v. Gifford, 2013
CCA LEXIS 97 at *12 (N.M. Ct. Crim. App. 14 Feb. 2013) (unpublished)
{concluding the military judge did not err in denying an implied bias challenge to a
member with victim advocate experience who only had two cases, neither of which
reached the court-martial process); cf United States vy. Commisso, 76 M.J. 315, 325
n.5 (C.A.A.F. 2017) (noting participation on a sexual assault review board or similar
entity does not constitute actual or implied bias).
WHITEEYES—ARMY 20190221
While we recognize that Lugo is not binding authority, we find its logic and
reasoning to be dispositive here and hold that serving as a SARC or UVA, without
more, does not per se disqualify a potential member from serving on the panel. In
short, given the totality of the circumstances, including the responses provided by
SGM DR, the military judge’s well-reasoned explanation, and the fact that the
record lacks evidence of any of SGM DR’s specific experiences as a SARC, the
military judge did not err in denying the causal challenge based on implied bias.
D. Post-Trial Delay
After the conclusion of appellant’s trial on 5 April 2019, counsel received the
941-page transcript on 25 May 2019. Defense counsel completed his review on 2
June 2019, and the military judge received the record of trial (ROT) on 26 July
2019. On 7 August 2019, appellant demanded speedy trial post-trial processing. On
19 September 2019, fifty-six days after receiving it, the military judge authenticated
the ROT.
Although the staff judge advocate (SJA) completed his recommendation to the
convening authority (SJAR) on 22 October 2019, defense counsel did not receive the
ROT and SJAR until 15 January 2020. After receiving an additional twenty days,
the defense submitted post-trial matters on 20 February 2020. Over a month later,
the SJA submitted his SIAR Addendum on 27 March 2020, and the convening
authority took action the same day. Although the SJAR acknowledged the delay, it
did not provide any explanation, but merely noted that no corrective action was
necessary. Excluding the twenty days for the defense-requested delay to prepare
post-trial submissions, a total of 338 days elapsed between adjournment and the
convening authority’s action.
When confronted with a claim of post-trial delay, this court has two distinct
responsibilities. United States v. Simon, 64 M.J. 205, 207 (C.A.A.F. 2006) (citing
Toohey v. United States, 60 M.J. 100, 103-04 (C.A.A.F. 2004)). First, we review de
novo whether claims of excessive post-trial delay resulted in.a due process violation.
id. (citing U.S. Const amend. V; Diaz v. Judge Advocate General of the Navy, 59
M.J. 34, 38 (C.A.A.F. 2003)). Second, even if we find no error as a matter of law,
we may grant an appellant relief for excessive post-trial delay using our broad
authority to determine sentence appropriateness under Article 66, UCMJ. Jd. (citing
United States v. Tardif, 57 M.J. 219, 225 (C.A.A.F. 2002)).
Here, appellant seeks relief only under Tardif and Article 66, UCMJ, based on
the lack of any compelling reason or explanation for the extensive delay in excess of
300 days. Having considered the entire record, we agree, and find that a thirty-day
reduction in appellant’s sentence to confinement is appropriate.
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WHITEEYES—ARMY 20190221
CONCLUSION
The findings of guilty are AFFIRMED. After determining an appropriate
remedy for the government’s dilatory post-trial processing, we AFFIRM only so
much of the sentence as provides for a dishonorable discharge, confinement for four
years and eleven months, total forfeiture of all pay and allowances, and reduction to
E-1. All rights, privileges, and property, of which appellant has been deprived by
virtue of that portion of the sentence set aside by this decision are ordered restored.
See UCMJ arts. 58b(c) and 75(a).
Chief Judge (IMA) KRIMBILL and Senior Judge BROOKHART concur.
FOR THE COURT:
ketene —
MALCOLM H. SQUIRES, JR.
Clerk of Court
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