Last Thursday CAAF granted review in two cases:

No. 18-0350/CG. U.S. v. Michael R. Rodriguez. CCA 1450. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

WHETHER UNITED STATES v. ORBEN, WHICH ESTABLISHED WHAT THE GOVERNMENT MUST SHOW TO PROVE INTENT FOR INDECENT LIBERTIES UNDER ARTICLE 134 (THE PRECURSOR TO ARTICLE 120b), APPLIES TO THE INTENT ELEMENT OF ARTICLE 120b(c), SEXUAL ABUSE OF A CHILD.

Briefs will be filed under Rule 25.

The Coast Guard CCA’s decision is available here. The case involves a conviction for sexual abuse of a child based upon Rodriguez kissing a child’s feet with an intent to arouse or gratify his own sexual desire. To prove Rodriguez’s intent, the military judge allowed the prosecution to admit evidence of Rodriguez’ foot fetish. The CCA affirmed.

No. 18-0362/AR. U.S. v. Nicholas L. Frost. CCA 20160171. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED IN ADMITTING HEARSAY STATEMENTS AS PRIOR CONSISTENT STATEMENTS UNDER MIL. R. EVID. 801(d)(1)(B)(i) WHERE THE DEFENSE THEORY POSITED THE IMPROPER INFLUENCE OR MOTIVE PRECEDED THE ALLEGEDLY CONSISTENT STATEMENTS.

Briefs will be filed under Rule 25.

The Army CCA’s opinion is available here. The CCA rejected the granted issue in a footnote, concluding: “Miss DF’s initial statement to her mother and SC in August 2013 was properly admitted by the military judge. A prior consistent statement that precedes an allegation of improper influence is not hearsay. Mil. R. Evid. 801(d)(1)(B).” Slip op. at 10 n.6.

4 Responses to “CAAF grants review in two cases”

  1. Confused TC says:

    I’m not sure I understand the reason granting the USCG case.  Anyone want to help me?  It seems the definition of the old 134 and the new 120b(c) are substantially the same.

  2. Fisch says:

    Regarding Frost, what happens in civilian divorce proceedings and custody disputes is not dependent on Judgment dates.  Many times, it is an ongoing process that spans 18 years, particularly when a parent strives to alienate the affection of the child from the noncustodial parent.  In this case, there is evidence of the mother having been found in contempt for visitation issues with the Accused.  Whether it is because she didn’t kick in half of the travel expenses, she prohibited the children from visiting with the Accused, or some other reason, she does not appear to have been playing nice.
     
    So, when you are dealing with a minor child who allegedly makes an outcry and your defense is that the child was coached by the mother, then you need to focus on the mother’s motive or improper influence.  And some, if not many, Military Judges have little understanding of how divorces work, so you might need an expert to come in and explain how motives to change custody can span throughout the child’s lifetime until they reach the age of majority.  And, with crazy people the trigger could be that the man remarries and his new wife took the child to the nail salon for a mani/pedi and how much fun it was, while mother who has three kids from three different guys and is working on her fourth can afford a mani/pedi for herself, she has never taken her child with her. 
     
    But, within my experience, I’ve had allegations with divorce components where MJ’s needed to have a witness explain what happens.  Nothing is more frustrating when you have an O6 who has a law license who doesn’t understand that in order to get married to the new Soldier you are hooking up with, that you need to get divorced from the Soldier you are married to because of a little crime called “bigamy.”  My last three cases involved custody issues.  Thankfullly, I was able to get the evidence and documents I needed before the panel into evidence, but I have in the past dealt with an MJ who was either clueless about divorce or being obtuse.  As a defense counsel, you have to make the record with something.
     
    The one thing I don’t understand is how the Defense would not have opened the door to the prior consistent statement coming in.  for example, DC sought out the evidence that the accuser did not make an outcry when interviewed 4 times to include the Article 32.  Yet, when she met with Dr. LK a few times (Anybody know who this is btw?) she says that Daddy put his Pee Pee in her mouth.  So, does that raise the inference that the child was coached by mom or led by Dr. LK? And, if so, then wouldn’t it be relevant that the child said it previously, but the defense had the evidence suppressed? 
     
    And, what about the effect on the listener?  Isn’t that relevant to why Mom reported that her daughter was being abused?  Why’d you call the cops?  My daughter said that her Dad put his Pee Pee in her mouth.
     
    On the other hand, why would a 9 year old girl testify at trial that a penis with a ring though it is “strange?”  How many penises has a 9 year old girl seen to establish that a non-ringed penis is normal, thereby making a penis with a ring through it “strange?” I agree that it is strange because……OUCH……but, as far as she knows maybe girls pierce their ears and guys pierce their penises.
     
    Had I been on the panel with Judge Wolfe, then he wouldn’t have been author of a dissenting opinion.

  3. Zachary D Spilman says:

    what about the effect on the listener?  Isn’t that relevant to why Mom reported that her daughter was being abused?  Why’d you call the cops?  My daughter said that her Dad put his Pee Pee in her mouth.

    What’s the relevance of mom calling the cops?

  4. Fisch says:

    What’s the relevance of mom calling the cops?
     

    The defense would argue to start the criminal prosecution of her ex-husband, so he won’t get visitation.
     
    But, then the Government should be able to respond with “Why did you call the cops?”
    W: Because my daughter said on the way to dinner that her father put his penis in her mouth.
    DC: Objection! Hearsay and Relevance
    MJ: Government?
    TC: Effect on Listener and prior consistent statement
    Overruled

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