United States v. Moss

UNITED STATES, Appellee

v.

Kirk A. MOSS, Technical Sergeant
U.S. Air Force, Appellant

No. 05-0545

Crim. App. No. 35379

United States Court of Appeals for the Armed Forces

Argued February 7, 2006

Decided June 21, 2006

CRAWFORD, J., delivered the opinion of the Court, in which
GIERKE, C.J., and EFFRON, BAKER, and ERDMANN, JJ., joined.

Counsel

For Appellant: Captain Anthony D. Ortiz (argued); Colonel
Carlos L. McDade and Lieutenant Colonel Mark R. Strickland (on
brief).

For Appellee: Captain Jefferson E. McBride (argued); Lieutenant
Colonel Robert V. Combs, Lieutenant Colonel Gary F. Spencer, and
Captain Jin-Hwa Frazier (on brief); Major John C. Johnson.

Military Judge: Ann D. Shane

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Moss, No. 05-0545/AF

Judge CRAWFORD delivered the opinion of the Court.

Contrary to his pleas, Appellant was convicted by a general

court-martial, consisting of officer and enlisted members, of

carnal knowledge, sodomy with a child,1 and indecent acts with a

child, in violation of Articles 120, 125, and 134, Uniform Code

of Military Justice (UCMJ), 10 U.S.C. §§ 920, 925, 934 (2000).

Appellant was sentenced to a bad-conduct discharge, seven years

of confinement, forfeiture of all pay and allowances, and

reduction to the lowest enlisted grade. The convening authority

approved the sentence as adjudged and the United States Air

Force Court of Criminal Appeals affirmed the findings and

sentence. United States v. Moss, No. ACM 35379, 2005 CCA LEXIS

139, at *12, 2005 WL 1017585, at *5 (A.F. Ct. Crim. App. Apr.

14, 2005) (unpublished). This Court granted review on the

following issue:

WHETHER APPELLANT WAS DENIED MEANINGFUL CROSS-
EXAMINATION OF GOVERNMENT WITNESSES IN VIOLATION OF
HIS SIXTH AMENDMENT RIGHT OF CONFRONTATION WHEN THE
MILITARY JUDGE REPEATEDLY PREVENTED TRIAL DEFENSE
COUNSEL FROM CONFRONTING THE ALLEGED VICTIM AND OTHER
WITNESSES WITH IMPEACHMENT EVIDENCE ADMISSIBLE UNDER
MIL. R. EVID. 608.

For the reasons explained herein, the decision of the Court

of Criminal Appeals is reversed.

1
Appellant was charged with rape and forcible sodomy with a
child. He was convicted of the lesser included offenses of
carnal knowledge and sodomy with a child by exceptions and
substitutions.

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Facts

At the time of the offenses, Appellant was a thirty-six-

year-old technical sergeant with eighteen years of service, and

he was married with four children. On July 27, 2000, Appellant

was traveling via motorcycle from Pensacola, Florida, to his

home in Tampa, Florida, with his fourteen-year-old niece by

marriage, KLVD, so that she could spend some time with his

family. The two stopped for the night at Tyndall Air Force Base

where they shared a billeting room. The room contained a single

queen-size bed. The uncontroverted evidence was that they slept

in the same bed. According to KLVD, during the night Appellant

fondled her breast and thighs, penetrated her vagina with his

fingers, licked her vagina, and had sexual intercourse with her.

Appellant, who testified at trial, denied any sexual contact

with KLVD.

In March 2001, KLVD first reported this incident when her

mother picked her up from the Baptist Behavioral Center in

Little Rock, Arkansas, where she had received psychological

treatment following an attempted suicide. Between the date of

the alleged assault and the date KLVD first reported a sexual

assault to her mother, KLVD had been in three mental

institutions for both inpatient and outpatient care as a result

of behavior problems and suicide attempts.

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At trial, the Government filed a motion in limine seeking

to limit the cross-examination of KLVD, her mother, and other

witnesses to exclude certain past acts or conduct. The

Government sought to exclude:

(1) KLVD’s use of alcohol and drugs after the rape.

(2) KLVD’s two suicide attempts, one with pills and the

other with a shotgun, in addition to instances where she

threatened suicide.

(3) KLVD’s friends’ use of alcohol and drugs.

(4) General acts of disobedience, which included sneaking

out late at night, getting caught with boys, lying to her

parents, having parties without authorization, destruction

of property at the mental institution, and conduct that

resulted in removal or expulsion from school.

Appellant’s trial defense counsel opposed the motion in limine

stating that the past acts should be admitted under Military

Rule of Evidence (M.R.E.) 608(c) as relevant to show bias and a

motive to misrepresent.

The trial defense counsel asserted that he wanted to cross-

examine KLVD, her mother, and the Government expert regarding

these acts because he wanted to establish what the “punishment”

and consequences to KLVD were for these actions in order to show

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that KLVD had motive to fabricate.2 The trial defense counsel

wanted to reinforce this theory by showing that after the rape

report, the relationship between KLVD and her parents improved.

The trial defense counsel also wanted to question KLVD

regarding the prior false statements she made on various

occasions to her parents, school officials, and mental health

professionals. Some of these false statements were evidenced in

KLVD’s mental health records. The defense argued that this

evidence was probative of KLVD’s truthfulness and was admissible

under M.R.E. 608(b).

Ultimately, the military judge granted the Government’s

motion to preclude the defense from presenting the bias evidence

because she could not find a logical connection to the defense

theory for admissibility:

I’m saying that the logic breaks down for me as to why
she would make -- the fact that she’s been expelled
from school and is in trouble with her mother, her
mother has spanked her or whatever, would create a
situation where, logically, she would make an
allegation against the accused in this particular
case. It doesn’t -– I’m not persuaded that there’s
even any logical connection there, that one could even
make that argument.

Discussion

M.R.E. 608(c) allows for evidence to show bias, prejudice,

or any motive to misrepresent through the examination of

2
After one incident of misconduct, KLVD’s mother beat her with a
belt. The beating left marks on KLVD’s thighs and buttocks and
ultimately resulted in intervention from Family Services.

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witnesses or extrinsic evidence.3 United States v. Bahr, 33 M.J.

228, 232 (C.M.A. 1991) (citing Delaware v. Van Arsdall, 475 U.S.

673, 684 (1986)). This Court has held that rules of evidence

should be read to allow liberal admission of bias-type evidence.

United States v. Williams, 40 M.J. 216, 218 (C.M.A. 1994). When

the military judge excludes evidence of bias, the exclusion

raises issues regarding an accused’s Sixth Amendment right to

confrontation. United States v. Bins, 43 M.J. 79, 84 (C.A.A.F.

1995).

Where the Sixth Amendment’s right to confrontation is

allegedly violated by a military judge’s evidentiary ruling, the

ruling is reviewed for an abuse of discretion. See United

States v. Israel, 60 M.J. 485, 488 (C.A.A.F. 2005). If an abuse

of discretion is found, the case will be reversed unless the

error is harmless beyond a reasonable doubt. Id.; see also

Bahr, 33 M.J. at 231 (where an error constitutes a violation of

an appellant’s constitutional rights, this Court will reverse

the findings of the court below unless we find the error was

harmless beyond a reasonable doubt (citing Van Arsdall, 475 U.S.

at 684)). “A defendant’s right under the Sixth Amendment to

cross-examine witnesses is violated if the military judge

3
The use of extrinsic evidence can be limited if it is
collateral to an important trial issue or its relevance is not
established. United States v. Gonzales, 16 M.J. 423, 425
(C.M.A. 1983); United States v. Hunter, 17 M.J. 738, 739
(A.C.M.R. 1983).

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precludes a defendant from exploring an entire relevant area of

cross-examination.” Israel, 60 M.J. at 486 (citing United

States v. Gray, 40 M.J. 77, 81 (C.M.A. 1994)). Relevant

evidence is “evidence having any tendency to make the existence

of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without

the evidence.” M.R.E. 401. “The partiality of a witness . . .

is ‘always relevant as discrediting the witness and affecting

the weight of his testimony.’” Davis v. Alaska, 415 U.S. 308,

316 (1974) (quoting 3A John Henry Wigmore, Evidence § 940, at

755 (Chadbourn rev. 1970)).

We hold that the military judge’s exclusion of the

proffered evidence denied Appellant his fundamental right of

confrontation and cross-examination. We address next the offers

of proof and the relevance and admissibility of the evidence

under M.R.E. 608(c).

M.R.E. 608(c)4

This case revolves around the conflicting testimony of

Appellant and the alleged victim. When an appellant claims a

violation of the Confrontation Clause on the grounds that he was

prohibited from conducting an otherwise appropriate cross-

4
Appellant also raised an issue regarding the military judge’s
ruling on the admissibility of evidence under M.R.E. 608(b). In
light of our ruling regarding the admissibility of the M.R.E.
608(c) evidence, we do not address whether the military judge
was correct in her rulings excluding the M.R.E. 608(b) evidence.

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examination designed to show a witness’s bias, the appellant has

the burden of showing that a reasonable jury might have reached

a significantly different impression of the witness’s

credibility if the defense counsel had been able to pursue the

proposed line of cross-examination. Van Arsdall, 475 U.S. at

680. In this case, Appellant argues that trial counsel

attempted to portray KLVD as an innocent victim with little or

no problems beyond being a “normal” teenager. The trial defense

counsel wanted to respond to this assertion by showing that

KLVD’s past acts were relevant to her motive to fabricate and

that she fabricated the alleged rape to cast herself as a victim

to gain favorable treatment from her parents and to improve her

relationship with them. At trial and before this Court,

Appellant relies on Bahr. In Bahr, 33 M.J. 233, this Court

found that the military judge erred by suppressing the

prosecutrix’s statements that she hated her mother when it was

offered to show a motive to fabricate the rape accusation

against her stepfather.

Here, the military judge rejected the evidence because she

did not find it relevant to Appellant’s theory based on the Bahr

case. The military judge stated:

If the allegation had been made against the alleged
victim’s father, for example, or the mother’s
boyfriend, for example, and it was the mother’s
boyfriend who was on trial here, then I could follow
the defense counsel’s logic . . . . I’ve not heard any

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evidence that would bring the accused into the picture
at all, as to why he would be a logical target for her
to make that allegation against.

In overlooking the greater theory of admissibility, the military

judge erred.

As a result of the military judge’s ruling, the defense did

not have the ability to attack the allegations by KLVD or

present evidence to show why KLVD fabricated or embellished the

true nature of the situation that occurred in the billeting

room. The defense was not allowed to show that KLVD was

constantly in trouble with alcohol, drugs, and general

misconduct, that her friends were involved in similar conduct,

and that her mother had became more restrictive on her liberty.

Appellant was not allowed to show that KLVD was unhappy with the

restrictive, controlling environment she was under and that, as

a result, KLVD had a motive to misrepresent the event with

Appellant in order to change her own present circumstances.

In this case, the testimony of KLVD was the heart of the

Government’s proof for the charges. There was no other evidence

to corroborate the sexual misconduct. Appellant admitted to

sleeping in the same bed as his niece in just his underwear;

however, that act alone does not establish the elements of

carnal knowledge or sodomy. There was no dispute that KLVD did,

or was involved with, the conduct or acts the defense wanted to

present. There was also no dispute that KLVD experienced

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certain repercussions or responses from her parents and the

school system as a result of her conduct. The case is a “he

said/she said” scenario, revolving around the testimony of

Appellant and the alleged victim.

A reasonable panel might have reached a significantly

different impression of KLVD’s credibility had the defense been

able to present the excluded evidence. As asserted by the

defense, KLVD may have misrepresented the event with her uncle

in order to deflect attention away from herself or change her

situation. The defense’s primary purpose in seeking the

admission of this evidence was to argue that the evidence

indicated that KLVD was getting more adverse attention from her

parents, school, and the counseling system than she wanted. The

defense would have argued that KLVD was seeking ways to divert

the focus from herself and her conduct and that being a “victim”

was a way of accomplishing this. The defense could also argue

that KLVD did gain more empathy from her mother, at school, and

in the counseling system. This was the defense’s primary

purpose in arguing for admission of this evidence.

The evidence supporting the defense’s theory that KLVD

fabricated the allegation was that there was tension between

KLVD and her mother and that on one occasion, KLVD’s mother beat

her, causing bruises that resulted in intervention by Family

Services. There was evidence that KLVD’s mother and her aunt,

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Appellant’s wife, were very close. The defense also posited

that KLVD wanted to hurt her mother and divert her mother’s

attention away from her by “driving” a “wedge between mom and

sister.” According to the defense, KLVD may not have been

directly trying to hurt her uncle, but trying to hurt her

mother. Although this was not the defense’s strongest theory

for admission of the evidence, collectively, this theory may

have supported the defense’s theory that KLVD fabricated the

allegations in order to deflect unwanted attention away from

herself and problems with her parents and school.5

Likewise, the lower court erred by affirming the ruling of

the military judge. The lower court focused on our ruling in

Bahr, noting that: “[I]n this case the relationship between the

victim’s mother and the appellant was much more remote than in

Bahr.” 2005 CCA LEXIS 139, at *9, 2005 WL 1017585, at *3. This

overlooks the fact that a reasonable juror could have been

convinced by the defense’s theory that KLVD had a motive to

fabricate a story and could have, therefore, formed a

significantly different impression of KLVD’s credibility.

5
See Gray, 40 M.J. at 81 (military judge erred in precluding
evidence that supported the defense theory that the appellant’s
subordinate was the initial target of the Texas Department of
Human Services (DHS) investigation and that the subordinate and
his wife accused the appellant of sexual misconduct with the
wife “in order to shift DHS attention from their own
dysfunctional and abusive family situation”).

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Pursuant to M.R.E. 608(c), the defense should have been

allowed to cross-examine KLVD and her mother on their

relationship, including allegations of beatings, KLVD’s alcohol

and drug use, KLVD’s removal from school, KLVD’s suicide

attempts, and her “general acts of disobedience.” These topics

should not have been off-limits during cross-examination because

they supported a viable defense theory as to why KLVD would

fabricate the rape allegations. Moreover, the evidence was

relevant as a response to the Government’s theory presented at

trial that the delay in reporting the incident for approximately

seven months was because KLVD did not want to cause a break in

the relationship between her mother and her aunt and did not

want to hurt the family. The defense theory that she fabricated

the allegations to get the focus off her misbehavior during that

period of time rebuts this theory raised by the prosecution.

M.R.E. 403

Admission of the specific acts is “still dependent upon the

military judge properly evaluating the evidence’s probative

value against its potential for unfair prejudice as measured by

Rule 403.” 2 Stephen A. Saltzburg et al., Military Rules of

Evidence Manual § 608.02[3][a], at 6-52 (5th ed. 2003).

Therefore, in this case, the evidence must pass a M.R.E. 403

balancing test before it can be admitted.

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The probative value of the evidence in this case is high.

The evidence directly fits the defense theory for which it would

have been offered. On the other hand, the risk of unfair

prejudice in this case is fairly low. Although the evidence was

probative to the defense theory, it was a double-edged sword

that also could have hurt Appellant’s case. When viewed in

context of the timing of the events, KLVD’s prior bad acts could

be seen as evidence of post traumatic stress disorder stemming

from the alleged rape.6 Thus, the danger of unfair prejudice in

this case does not significantly outweigh the probative value of

admitting the evidence.

Harmless Beyond a Reasonable Doubt

In determining whether or not the erroneous exclusion of

evidence is harmless, this Court considers:

the importance of the witness’ testimony in the
prosecution’s case, whether the testimony was
cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the
witness on material points, the extent of cross-
examination otherwise permitted, and of course, the
overall strength of the prosecution’s case.

Bahr, 33 M.J. at 234 (quoting Van Arsdall, 475 U.S. at 684.

Interestingly, the trial counsel argued during her closing

argument that the defense was unable to attack KLVD’s

credibility and that “the only thing that [the defense] could

6
The actions cited in the motion in limine all occurred after
the alleged rape but before KLVD came forward.

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come up with” was inconsistencies in KLVD’s testimony and her

prior statements. The trial counsel acknowledged that there was

no medical evidence, no eyewitness, and that the case “boils

down to the credibility of the two witnesses.” As a result of

the military judge’s erroneous ruling, the defense had no way of

showing bias or motive to misrepresent based upon what was going

on in KLVD’s life during the seven months between the overnight

stay at Tyndall Air Force Base and when KLVD reported the

alleged sexual assault. The defense lost its ability to attack

the Government’s only evidence against Appellant.

We hold that Appellant’s rights to cross-examine the

witnesses called against him and to present his defense were

improperly limited by the military judge’s ruling. This case

was a credibility contest between Appellant and KLVD. Appellant

acknowledged in his pretrial statement that he drank beer,

allowed KLVD to sip a beer, and that he climbed into bed with

KLVD to sleep, wearing nothing but his underwear. Although

these facts are circumstantial evidence of sexual misconduct,

whether the members could conclude there was sexual intercourse

and sodomy depended on whether they believed Appellant or KLVD.

It is impossible to say whether evidence that could have been

used to attack the credibility of KLVD would have raised some

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doubt as to whether KLVD’s version of the event was accurate.7

The military judge’s ruling essentially deprived Appellant of

his best defense, which was to demonstrate KLVD’s bias and to

meaningfully challenge her credibility. It is the members’ role

to determine whether a prosecutrix’s testimony is credible or

biased.8 The weight and credibility of the Government’s main

witness are matters for the members alone to decide. Bins, 43

M.J. at 85. Since the excluded evidence may have tipped the

credibility balance in Appellant’s favor, we find that the error

was not harmless beyond a reasonable doubt.

Conclusion

The decision of the United States Air Force Court of

Criminal Appeals is reversed. The findings of guilty and the

sentence are set aside. The record of trial is returned to the

Judge Advocate General of the Air Force. A rehearing is

authorized.

7
United States v. Tippy, 25 M.J. 121, 122 (C.M.A. 1987) (when a
military judge erroneously precluded relevant evidence, this
Court concluded that it “will not be satisfied unless impartial
triers of fact, imbued with the full knowledge of this OSI
conduct, tested by the crucible of cross-examination and
confrontation, properly instructed in the laws of entrapment,
and applying their good judgment, common sense, understanding of
life and the ways of young men and manipulative agents, conclude
beyond a reasonable doubt that he is guilty”).
8
See Olden v. Kentucky, 488 U.S. 227, 232 (1988) (“It is plain
to us that ‘[a] reasonable jury might have received a
significantly different impression of [the witness’s]
credibility had [defense counsel] been permitted to pursue his
proposed line of cross-examination.’” (quoting Van Arsdall, 475
U.S. at 680)).

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