Appendix — Harrow v. United States (No. 07-404)

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APPENDIX A

65 M.J. 190

U.S. Court of Appeals for the Armed Forces.

UNITED STATES, Appellee,

v.

Ashontia K. HARROW, Airman Basic, U.S. Air Force,

Appellant.

No. 06-0474.

Crim.App. No. 35257.

Argued Feb. 14, 2007.

Decided June 22, 2007.

*192 RYAN, J., delivered the opinion of the Court, in which

BAKER, ERDMANN, and STUCKY, JJ., joined. EFFRON,

C.J., filed an opinion concurring in part and in the result.

For Appellant: Captain Christopher L. Ferretti (argued);

Lieutenant Colonel Mark R. Strickland (on brief); Captain

Christopher S. Morgan.

For Appellee: Captain Jefferson E. McBride (argued); Colonel

Gerald R. Bruce, Lieutenant Colonel Robert V. Combs, and

Captain Daniel J. Breen (on brief); C olonel Gary F. Spencer

and Major Steven R. Kaufman.

Amicus Curiae for Appellant: Captain Alex Schneider (law

student) (argued); James H. Rosenblatt (supervising attorney)

(on brief) for Mississippi College School of Law.

Amicus Curiae for Appellee: Captain Jennifer J. Bowersox

(law student) (argued); Victoria A. Lowery (supervising

2a

attorney) and Katie Akins (law student) (on brief) for

Mississippi College School of Law.

Judge RYAN delivered the opinion of the Court.

Appellant argues that three evidentiary errors during her

trial require this Court to overturn her conviction for the

unpremeditated murder of her infant daughter. She also alleges

errors arising from her guilty plea to larceny, the United States

Air Force Court of Criminal Appeals’ sentence reassessment,

as well as from post-trial and appellate delay. We address each

of these six issues. Although we conclude that this case is not

without error, we hold that the errors did not prejudice

Appellant. Therefore, for the reasons stated below, we affirm

the decision of the lower court.

BACKGROUND

A general court-martial composed of officer and enlisted

members convicted Appellant, contrary to her plea, of the

unpremeditated murder of her infant daughter, in violation of

Article 118, Uniform Code of Military Justice (UCM3J), 10

U.S.C. § 918 (2000). Appellant pled guilty to violations of

Articles 86, 107, 121 and 134, UCMJ, 10 U.S.C. §§ 886, 907,

921, 934 (2000), and thirteen specifications thereunder, to

include: multiple failures to go, absence without leave, making

a false official statement, theft of insurance proceeds, fraud in

obtaining phone services, dishonorable failure to pay just debts,

and making false claims to secure the approval of a loan. The

sentence adjudged by the court-martial and approved by the

convening authority included a dishonorable discharge,

confinement for twenty-five years, and forfeiture of all pay and

allowances.

3a

The Court of Criminal Appeals affirmed all charges except

one specification of absence without leave. United States v.

Harrow, 62 M.J. 649, 661-62 (A.F.Ct.Crim.App.2006). The

Court of Criminal Appeals found that Appellant’s plea of guilty

to the absence without leave charge was improvident and

reassessed her sentence to a dishonorable *193 discharge,

twenty-four years and six months of confinement, forfeiture of

all pay and allowances, and reduction to the grade of E-1.

We granted review on the following issues:

I. WHETHER THE MILITARY JUDGE ERRED BY

PREVENTING THE DEFENSE FROM IMPEACHING THE

TESTIMONY OF THE DECEASED BABY’S FATHER-THE

ONLY OTHER PERSON PRESENT AT THE TIME OF THE

ALLEGED SHAKING INCIDENT-WITH PRIOR

INCONSISTENT STATEMENTS REGARDING THE

BABY’S INTERACTIONS WITH APPELLANT AND THE

BABY’S CRYING AFTER APPELLANT LEFT THE

HOUSE.

Il. WHETHER APPELLANT’S DUE PROCESS RIGHTS

WERE VIOLATED WHEN IT TOOK OVER FOUR YEARS

FOR THE ARTICLE 66 REVIEW BY THE COURT BELOW

TO BE COMPLETED.

Ill. WHETHER THE MILITARY JUDGE ERRED BY

DENYING A DEFENSE MOTION IN LIMINE TO

EXCLUDE THE TESTIMONY OF VARIOUS WITNESSES

REGARDING APPELLANT’S PATTERN OF MINOR

PARENTAL ABUSE WHERE THE TESTIMONY

CONSTITUTED INAPPROPRIATE CHARACTER

EVIDENCE THAT WAS UNFAIRLY PREJUDICIAL.

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IV. WHETHER THE MILITARY JUDGE ERRED BY

ALLOWING THE PROSECUTION’S EXPERT WITNESS

TO PRESENT INADMISSIBLE PROFILE EVIDENCE

THAT PLACED APPELLANT IN THE PROFILED

CATEGORY AND EXCLUDED THE DECEASED BABY’S

FATHER-THE ONLY OTHER SUSPECT-FROM THE

PROFILED CATEGORY.

V. WHETHER APPELLANT’S GUILTY PLEAS TO

CHARGE II ANDITS SPECIFICATION [LARCENY] WERE

PROVIDENT.

VI. WHETHER THE AIR FORCE COURT OF CRIMINAL

APPEALS PROPERLY REASSESSED THE SENTENCE

WHEN IT INCLUDED A REDUCTION IN PAY GRADE

THAT WAS NOT ADJUDGED (OR AUTHORIZED). '

FACTS

A. Overview

We focus first on the general background facts relevant to

Appellant’s conviction for the unpremeditated murder of her

infant daughter, Destiny. Destiny was taken to the hospital after

suffering severe brain trauma from blunt force injury on June

23, 2000. At the hospital doctors determined that Destiny had

suffered serious brain damage consistent with shaken baby

syndrome and blunt force trauma. Five months later Destiny

died from injuries inflicted that day. She was eleven months

old.

]

We heard oral argument in this case at the Mississippi College

School of Law, Jackson, Mississippi, as part of the Court's “Project

Outreach.” See United States v. Finch, 64 M.J. 118, 119 (C.A.A.F.2006);

United States v. Mahoney, 58 M.J. 346, 347 n. 1 (C.A.A.F.2003).

Sa

In the course of the ensuing investigation, Appellant made

contradictory and incriminating statements to investigators and

others. These admissions and inconsistencies implicated her in

the murder of Destiny. Direct and circumstantial evidence

regarding the timing of Destiny’s injury and Appellant’s

consciousness of guilt, as well as expert testimony,

corroborated Appellant’s admissions and bolstered the

prosecution’s case against her.

*194 The defense attempted to deflect culpability away

from Appellant, arguing Antonio Jackson, Destiny’s father,

was the perpetrator. Some evidence showed that Appellant told

investigators that Destiny’s death may have been an accident.

Appellant did not testify and the defense called no witnesses on

the merits. All defense evidence was developed through

cross-examination of the prosecution’s witnesses.

The panel was asked to decide under what circumstances,

and at whose hand, Destiny died. What follows is a summary

of some of the evidence presented by the prosecution to prove

the cause and circumstances of Destiny’s death.

B. Physical Injurics to Destiny

On June 23, 2000, Destiny lived in government housing at

Eglin Air Force Base, Florida, with Appellant. Jackson, the

natural father of Destiny, lived out of state, but was visiting

Appellant and staying at her apartment for several! days.

On the day of the incident Appellant went to work and left

Destiny with Jackson. Jackson was home with Destiny

throughout the morning and she slept for most of that time.

Appellant returned to her base apartment at midday.

6a

Shortly after she arrived home, Appellant took off her

uniform and lay on the couch. Sometime thereafter Appellant

became angry with Jackson. Appellant began arguing with

Jackson. The fighting escalated into Appellant screaming,

yelling, and cursing.

At some point during the argument, Appellant picked

Destiny up off the couch by one arm. Appellant held Destiny

by one arm, allowing her to flail about, throughout her tirade.

Jackson told her to be careful with the baby and not to take her

anger out on Destiny. Appellant only became angrier.

Appellant picked up a broom and pointed it at Jackson. She

approached him, spit in his face, and continued to yell at him.

Eventually, Jackson walked away from Appeilant and

went into the bathroom in order to avoid the confrontation.

Appellant followed him to the bathroom and continued

screaming at him. Jackson left the bathroom and returned to the

living room to avoid her. She followed him and began to throw

things at him, including Destiny’s walker.

Appellant continued to scream at Jackson, and he returned

to the bathroom and locked the door. After Jackson locked

himself in the bathroom, he could hear Appellant still

screaming and things hitting the wall. He turned up the radio

and tried to ignore her.

At 2:50 p.m. that day, after Jackson locked himself in the

bathroom, and before Appellant left the apartment, Security

Forces Senior Airman (SrA) Jason Warren, a patrolman

assigned to Security Forces, knocked on the front door of

Appellant’s apartment. SrA Warren had been dispatched to

Appellant’s apartment to tell her to contact the first sergeant at

work. This was a common occurrence, as Appellant did not

have a phone.

Ta

Appellaat had the baby on her hip and the baby appeared

to make eye contact with SrA Warren. During the two minutes

he was at the residence, SrA Warren did not hear any yelling

and nothing appeared to be out of the ordinary. SrA Warren did

not see Jackson. SrA Warren delivered the message and

departed. Appellant left shortly thereafter, slamming the door.

After Jackson heard the door slam, he left the bathroom

and found Destiny on the couch, lying on her side. He tried to

give her a bottle, but she was unresponsive and would not take

it. Jackson heard gargling noises coming from Destiny and

other sounds. He picked her up and observed vomit where she

had been laying. He held Destiny against his body and patted

her on the back in an attempt to clear out any remaining

emesis. As he was holding her, she began to shake, her back

arched, and her eyes rolled back in her head. She then went

limp.

Jackson immediately carried Destiny next door to the

apartment of Mr. and Mrs. Harris to call 911 because there was

no telephone in Appellant’s apartment. Only a few minutes

elapsed between the time Appellant sped off and the time

Jackson sought assistance from Mr. and Mrs. Harris.

*195 Mr. and Mrs. Harris, Appellant’s neighbors, both

testified about what happened before Jackson arrived at their

door. Mr. Harris was seated in the computer room of their

apartment, and Mrs. Harris was in their living room, which

directly abutted Appellant’s living room. As the Harris’

apartment shared a common but very thin wall with

Appellant’s apartment, they clearly heard the disturbance in

Appellant’s apartment.

Mr. and Mrs. Harris both heard Appellant, and only

Appellant, yelling next door. Mrs. Harris heard Destiny crying

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loudly for about ten minutes during the middle of the yelling.

Mrs. Harris also heard a loud bang against the shared living

room wall, knocking off a picture in her apartment, and then

she no longer heard Destiny crying. After the thump she heard

Destiny emit one or two whimpers before going silent. Five

minutes after she heard the loud bang against the wall, Mrs.

Harris heard Appellant’s front door slam so hard that it set off

Mrs. Harris’ door bell. She saw Appellant get into her car to

leave, spinning her tires as she exited the parking lot. Appellant

looked “very angry and very raged” as she left the apartment.

Mr. Harris also heard “thumps” and Appellant “yelling” in

Appellant’s apartment. Mr. Harris looked out the window and

saw Appellant spin her tires as she exited the parking lot.

According to both Mr. and Mrs. Harris, Jackson arrived at their

door with Destiny asking them to dial 911 only a minute or two

after Appellant left. Responding to Jackson’s plea, Mrs. Harris

called 911 and requested emergency assistance for Destiny.

Police and ambulance dispatch records, and the testimony

of Jackson, SrA Warren, and Mr. and Mrs. Harmis, establish the

following sequence of events in a thirteen-minute period from

2:45 p.m. to 2:58 p.m.: SrA Warren was dispatched to

Appellant’s apartment to deliver a message to her; SrA Warren

arrived at Appellant’s apartment and departed shortly

thereafter; Appellant left the apartment; and, almost

immediately thereafter, the Harrises called 911.

C. The Death of Destiny

Destiny was hospitalized as doctors attempted to save her.

She had sustained serious blunt force trauma to her brain and

the left side of her face and suffered significant hemorrhaging

of the brain and eyes. Notwithstanding two operations and

extraordinary care, Destiny died five months later.

9a

An autopsy confirmed significant injuries to Destiny’s

brain. Dr. Gary D. Cumberland, a forensic pathologist and the

chief medical examiner in the local Florida coroner’s office,

conducted an autopsy and found: bruising on the surface of the

brain, tearing of the brain tissue, swelling of the brain, and

several subdural and subarachnoid hemorrhages. The autopsy

also revealed hemorrhages in the eyes. The autopsy did not

reveal injuries associated with external trauma (e.g., skin

bruises) because the injuries occurred five months before

Destiny diced and had already healed.

Dr. Cumberland concluded that Destiny “died as a result

of blunt force injuries to the head in the situation of the shaken

baby syndrome.” A complete autopsy revealed no other

possible cause of death. In Dr. Cumberland’s opinion, after

speaking with an eye specialist and a neuropathologist, the only

possible cause of death was shaken baby syndrome. Dr.

Cumberland found the manner of death to be homicide, as the

injuries were too severe to have happened accidentally.

D. AFOSI Investigation

Special Agent (SA) Lies] D. Davenport, an Air Force

Office of Special Investigations (AFOSI) investigator,

participated in four interviews with Appellant. The first

interview was conducted on the 28th of June by a Federal

Bureau of Investigation (FBI) agent with SA Davenport sitting

in.

Initially, Appellant was not a suspect because the

investigators had been told that Appellant was not home at all

that day. Appellant told the investigators during the first

interview that she went home at lunch because she had not

been feeling well. She told the investigators that she had taken

some medication once she arrived at home, placed Destiny in

10a

her crib, and that she * 196 remained on the couch napping until

SrA Warren came to her door. Appellant stated that Jackson

was either in the kitchen or bathroom the entire time; she did

not recount any fight or argument.

During this first interview Appellant stated that she had

never seen Jackson handle the baby improperly. But she told

the agents that she believed Jackson had accidentally shaken

Destiny when she was unresponsive after he asked the Harrises

to call 911. Appellant said that Mrs. Harris told her that

Jackson was shaking the baby so much that Mrs. Harris had to

tell Jackson to put the baby down.

When the agents attempted to verify this point in an

interview with Mrs. Harris, she denied that Jackson had shaken

the baby or that she had told Appellant that version of the

events. Upon finding inconsistencies in Appellant’s story, the

agents began to view Appellant as a possible suspect.

SA Davenport conducted a second interview with

Appellant with another AFOSI agent, SA Carver, on the 15th

of August. SA Davenport led the interview. Because Appellant

was a suspect at this point, SA Davenport advised Appellant of

her Article 31(b), UCMJ, 10 U.S.C. § 831(b) (2000) rights,

which she waived.

At this interview Appellant changed her story and stated

that Destiny had not been in her crib. Instead, Appellant stated

that she held Destiny the entire time she was home. There was

no mention of Appellant taking a nap on the couch in the

second interview. Appellant stated that she may have caused

Destiny’s injuries accidentally when she went to the door to

speak with SrA Warren. She thought she might have swung

around quickly when she turned away from the door, causing

Destiny’s head to snap back.

lla

At this point, the investigators knew that Jackson and

Appellant had been arguing. But when SA Davenport asked

Appellant about the argument she initially denied it.

Eventually, Appellant admitted that she and Jackson had

argued for twenty to thirty minutes during the time period in

question. However, Appellant remained adamant that she had

not been angry or frustrated when she left the apartment.

Appellant maintained that Mrs. Harris had told her that Jackson

had possibly accidentally injured the baby.

A third interview was conducted two days later. Appellant

was again read her Article 31(b), UCMJ, rights, which she

waived. During this interview Appellant admitted that she

might have accidentally caused Destiny’s injuries when she

was playing with her. She described how she would regularly

throw Destiny in the air and catch her, and how she thought

that perhaps this caused the injuries. She again stated that the

accident also might have happened when she was turning away

from the door after speaking with SrA Warren. Appellant told

the investigators that she tossed “it,” meaning Destiny, in the

air twice on that day.

Upon further questioning, Appcllant asserted that only

Appellant or Jackson could have injured Destiny. When asked

if Jackson had injured Destiny, Appellant responded “no.”

According to SA Davenport, there was no additional pertinent

information gleaned from the fourth interview.

E. Trial Testimony

In addition to introducing Appellant’s statements to

investigators, the prosecution introduced other statements made

by Appellant to establish her consciousness of guilt. Jackson

testified that, after the injuries to Destiny, Appellant, while

crying, told him that she might be responsible. Appellant also

12a

told Jackson that they should not talk to AFOSI or the FBI and

that she thought Jackson was on “their” side and not hers.

The prosecution introduced evidence to establish

Appellant’s possible motives to injure Destiny. Stephanie

Lewis, who was a friend of Appellant’s sister, testified that

Appellant had asked her, prior to Destiny’s injury, if Lewis,

who was separated from the father of her children, thought her

“man” might come back if something happened to her children.

Appellant complained to Staff Sergeant (SSgt) Tynisha

Quick, a coworker, that because of money she spent on diapers

and formula for Destiny, Appellant did not have a phone, cable

television, or a social life. At *197 one point, SSgt Quick

observed Appellant speak directly to Destiny, blaming her for

all the things she could no longer do.

SSgt Quick further testified that Appellant had told her

that Destiny was more responsive to Jackson than to her.

Appellant told SSgt Quick that Destiny would tremble and cry

every time Appellant went near her, but would stop when

Jackson was near. SSgt Quick testified that Appellant told her

that she thought Jackson was trying to turn Destiny against her.

As will be discussed later when addressing Issue III, the

prosecution presented several instances of Appellant’s

uncharged misconduct relating to Destiny. Airman First Class

(A1C) Crystal E. Mills testified to an earlier incident where she

saw Appellant bite Destiny after the baby had bitten her.

Destiny began crying after Appellant bit her. According to

AIC Mills, Appellant ignored the cries. AIC also recounted

instances where Appellant would “flick” the hand of Destiny

to get her to stop doing things. SSgt Quick also recounted an

l3a

incident where Appellant “thumped” or “flicked” Destiny on

the thigh when she was misbehaving in a restaurant.”

Finally, the Government called two expert witnesses who

established the cause of Destiny’s death. As previously

discussed, Dr. Cumberland, a forensic pathologist from the

coroner’s office, explained his medical findings from the

autopsy. Dr. Sharon Cooper testified as an expert witness in the

field of developmental and forensic pediatrics. The defense did

not object to her credentials, and Dr. Cooper was recognized by

the court as an expert in her field.

Dr. Cooper stated that children under one year old were

the most likely victims of fatal child abuse. She testified that

there is a high degree of recidivism in child abuse, and

specifically in shaken baby cases, meaning that an abuser will

continue to shake a baby over a period of time. Usually, the

shaking becomes more intense in each instance. Dr. Cooper

also testified that the most common perpetrators of this type of

abuse are parents.

Dr. Cooper then explained the specific medical findings

consistent with shaken baby syndrome. She stated that retinal

hemorrhaging, brain injury, and bone trauma are the three most

common symptoms. After going through the symptoms, Dr.

Cooper explained the common triggers that would cause a

person to shake a baby. According to Dr. Cooper, the most

common cause is persistent crying. She stated that a person

would have to shake a baby for about twenty seconds to inflict

serious damage.

-

Trial counsel agreed at a motion hearing to exclude evidence

from Destiny’s autopsy that revealed evidence of previous severe head

trauma.

l4a

Dr. Cooper testified that she reviewed the medical,

investigative and social work records associated with this case.

She also interviewed Destiny’s primary care physician and her

foster mother. She observed all of the witnesses called during

the trial as well. After going over all of the evidence, Dr.

Cooper opined that Destiny died of an inflicted injury,

specifically, of shaken baby syndrome combined with blunt

force trauma. She specifically noted that Destiny’s patient

records from her initial treatment stated that Destiny exhibited

swelling of the scalp and bruising on the side of the face. This

bruising and swelling was consistent with external blunt force

trauma, such as a baby would experience after being thrown

against a wall.

Dr. Cooper also explained the standard progression of

symptoms in a shaken baby case. It usually takes fifteen

minutes after the shaking has occurred for any symptoms to

appear. The symptoms manifest themselves in a change in

mental status or an abnormal cry. The abnormal cry stems from

an altered neural state, which causes breathing difficulty.

Jackson described this type of noise during his testimony.

The victim then becomes less responsive and less active.

Next, a victim will vomit. The vomit will not be normal,

because the child has lost neural functioning to the point where

the stomach is no longer digesting food. Finally, the baby will

arch her back, roll her eyes back in her head, and become *198

stiff. This is a classic tonic seizure, associated with abnormal

electrical activity in the brain. Dr. Cooper stated that a baby’s

eyes could be open after the trauma, but they would not be able

to track anything visually. All of Destiny’s symptoms, as

recounted by Jackson, were consistent with shaken baby

syndrome.

15a

Dr. Cooper testified that it was unlikely that anything else

caused Destiny’s symptoms. She also stated that the act of

patting the child on the back to try to dislodge vomit would not

cause the symptoms Destiny experienced. Running with an

infant in a person’s arms or tossing a baby in the air and

catching her would not cause this type of injury either.

The Government rested at the conclusion of Dr. Cooper’s

testimony. After the presentation of the prosecution’s case,

Appellant rested. In closing, the prosecution argued that the

evidence rebutted Appellant’s prior claim of an accidental

injury to Destiny and identified Appellant as the perpetrator of

the murder of Destiny. Appellant’s argument revolved around

a single point-that the members could not “exclude Mr.

Jackson as a potential perpetrator of the offense.” After three

hours of deliberations, the panel returned a verdict finding

Appellant guilty of the unpremeditated murder of Destiny.

DISCUSSION

A. Appellant’s Opportunity to Impeach Jackson

1. Appellant alleges the military judge erred under Military

Rule of Evidence (M.R.E.) 613 when he denied the defense

request to recall SA Davenport to establish alleged

inconsistencies between Jackson’s testimony at trial and a

statement he made to SA Davenport during the investigation.

The purported inconsistency related to Destiny’s circumstances

when Appellant left her apartment. At trial Jackson testified

that Destiny was limp and non-responsive when Appellant left.

Defense counsel asserted that Jackson’s August 15 statement

to SA Davenport stated that Destiny was crying after Appellant

left.

l6a

During cross-examination, defense counsel referenced

Jackson’s prior statements to investigators and_ the

investigators’ notes to establish that Jackson had changed

certain aspects of his story between statements, embellished his

trial testimony by including details that he had omitted from his

prior statements, and presented trial testimony that was

different in some respects from his prior statements. For

example, the defense had Jackson admit that he initially lied to

the FBI about whether he and Appellant were in a fight, and

that a prior statement made no reference to Appellant spitting

on him or Appellant speeding away from the apartment.

With respect to other questions about the substance of the

five prior statements Jackson made during the course of the

investigations, defense counsel attempted to refresh Jackson’s

recollection as to what he had said in these prior statements.

Jackson repeatedly responded that he either did not remember

a fact or did not remember what he had said in his statements.

While the trial counsel stated that the prosecution would not

object if the defense wanted to admit Jackson’s August 15th

statement to investigators, defense counsel declined the

invitation.

After the Government concluded its case, defense counsel

sought to recall SA Davenport pursuant to M.R.E. 613(b) in

order to prove inconsistencies in Jackson’s testimony with

extrinsic evidence. Specifically, defense counsel explained to

the military judge during an Article 39(a), UCMJ, 10 U.S.C. §

839(a) (2000), session that he expected SA Davenport to testify

that Jackson told her during the investigation that Destiny was

crying after Appellant left the house. The defense counsel

argued that the testimony of SA Davenport was extrinsic

evidence that contradicted testimony Jackson gave at trial.

17a

The military judge did not allow defense counsel to call

SA Davenport. The military judge ruled that the statements

were not inconsistent because Jackson had simply stated that

he did not remember when he was asked about whether Destiny

was crying. The military judge opined that there is *199 only

an inconsistent statement when the witness denies making the

statement, and Jackson had merely stated that he did not

remember and did not have any recollection of Destiny crying

after Appellant left.

In his ruling, the military judge cited M.R.E. 608 rather

than the appropriate rule of evidence, M.R.E. 613. While the

military judge referred to M.R.E. 608, the explanation of the

ruling focused on whether the evidence could be admitted as a

prior inconsistent statement. Although the record is less than

clear, the military judge appears to have determined that the

evidence could not be brought in under M.R.E. 613. Moreover,

the military judge instructed the members on prior inconsistent

statements with regard to Jackson’s testimony during final

instructions on the merits.

Defense counsel and counsel for the Government agreed

that the extrinsic evidence was for impeachment, rather than

for substantive purposes. We note that defense counsel attached

SA Davenport’s AFOSI notes from the August interview with

Jackson as an appellate exhibit and offer of proof and expressly

chose not to attach Jackson’s statements as appellate exhibits.

The notes support Appellant’s assertion that Jackson told the

agent that Destiny was crying after Appellant left the

apartment.

2. [1] The process of impeachment by prior inconsistent

statement is a tool to attack the credibility and/or recollection

of a witness. “By showing self-contradiction, the witness can

be discredited as a person capable of error.” United States v.

18a

Banker, 15 M.J.207,210(C.M.A.1983); 3A John H. Wigmore,

Evidence § 874 (Chadbourne rev.1970). M.R.E. 613(b)

provides that “[e]xtrinsic evidence of a prior inconsistent

statement by a witness is not admissible unless the witness is

afforded an opportunity to explain or deny the same and the

opposite party is afforded an opportunity to explain or deny the

same....” If the inconsistency is admitted, extrinsic evidence is

generally not admissible. United States v. Gibson, 39 M.J. 319,

324 (C.M.A.1994) (holding that “ ‘the more expedient practice’

is to disallow extrinsic evidence of a prior inconsistent

statement if the witness admits making the statement’)

(citations omitted). If the inconsistency is not admitted, or the

witness equivocates, extrinsic evidence may be admitted, but

only for impeachment. United States v. Damatta-Olivera, 37

M.J. 474, 478 (C.M.A.1993) (“whether testimony is

inconsistent with a prior statement is not limited to

diametrically opposed answers but may be found as well in

evasive answers, inability to recall, silence, or changes of

position”).

[2][3}[4] A decision to admit or exclude evidence is

reviewed for an abuse of discretion. /d. In this case, the

military judge erred when he apparently determined that a

failure to remember facts contained in a prior statement cannot

be inconsistent with in-court testimony that differs from those

facts.’ This Court, in Damatta-Olivera, 37 M.J. at 478 and

3 ces ; , :

In contrast, the military judge did not err with respect to defense

counsel’s effort to impeach Jackson regarding Appellant's interaction at the

apartment with Destiny on June 23. Defense counsel asserted that Jackson's

prior statement to AFOS] stated that Appellant was lying on the couch

playing with Destiny. The military judge found that Jackson was not asked

about this during his testimony, that there was no inconsistency, and that the

defense had not established a foundation for later impeachment. The record

supports the military judge’s findings, and this is a correct statement of the

law. See United States v. Hale, 422 U.S. 171, 176, 95 S.Ct. 2133, 45

19a

United States v. Meghdadi, 60 M.J. 438, 444 (C.A.A.F.2005),

has noted that an inconsistency, for purposes of M.R.E. 613,

*200 may be found “not only in diametrically opposed

answers,” but also in “inability to recall,” Damatta-Olivera, 37

M.J. at 478, or equivocation. Meghdadi, 60 M.J. at 444.

[5] A military judge has considerable discretion to

determine if the trial testimony is inconsistent with a prior

statement. Damatta-Olivera, 37 M.J. at 478; see also United

States v. Insana, 423 F.2d 1165, 1170 (2d Cir.1970). But here

the military judge appears not to have understood that an

inability to recall or a “non-responsive” answer may present an

inconsistency for purposes of M.R.E. 613. Consequently, his

evidentiary ruling, based on an incorrect understanding of the

law, was an abuse of discretion. United States v. Roberts, 59

M.J. 323, 326 (C.A.A.F.2004) (“A military judge abuses his

discretion when ... he is incorrect about the applicable law, or

when he improperly applies the law.”).

{6][7] Applying nonconstitutional harmless error

analysis, we conduct a de novo review to determine whether

this error had a substantial influence on the members’ verdict

L.Ed.2d 99 (1975) (citation omitted) (reasoning that “[a]s a preliminary

matter ... the court must be persuaded that the [prior] statements are indeed

inconsistent [with trial testimony].”). The military judge did not abuse his

discretion in rejecting the defense attempt, under the guise of impeachment,

to bring in “new evidence” that related to a point that Jackson had not

testified to at trial. See Damatta-Olivera, 37 M.J. at 478 (stating that “[tJhe

military judge has considerable discretion to determine if trial testimony is

inconsistent.”’).

Similarly, we see no basis for Appellant's assertion of error with respect to

an alleged third inconsistency regarding whether Appellant threw anything

at Jackson during their argument. Defense counsel] did not raise an

inconsistency between Jackson's testimony and a prior statement with

respect to this matter at trial.

20a

in the context of the entire case. See Kotteakos v. United States,

328 U.S. 750, 764-65, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946);

United States v. Berry, 61 M.J. 91, 97 (C.A.A.F.2005). We

consider four factors: (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. Berry, 61 M.J. at 98. When a “fact was already

obvious from ... testimony at trial” and the evidence in question

“would not have provided any new ammunition,” an error is

likely to be harmless. United States v. Cano, 61 M.J. 74, 77-78

(C.A.A.F.2005); see also United States v. Santos, 59 M.J. 317,

322 (C.A.A.F.2004).

[8] As outlined above, and as articulated by the lower

court, the Government presented a convincing case against

Appellant. The evidence shows that Appellant was in a rage,

that she was alone with the victim, that she admitted to

investigators that only she and Jackson were possible suspects,

that she did not believe Jackson injured the baby, that she was

untruthful on numerous occasions, and that the timeline and

quality of the injuries amply supported the Government’s

version of the facts. We also note that Dr. Cooper’s medical

testimony regarding the standard progression of shaken baby

syndrome was both unrebutted and consistent with the

description of Destiny’s symptoms. Further, the timeline

established by the Government’s witnesses, alone or in

combination with Appellant’s pretrial statements regarding

Jackson’s location when she left the apartment, make Jackson

an unlikely suspect.

The defense’s case consisted of cross-examination of the

Government’s witnesses in an attempt to show that it was

possible that Jackson, rather than Appellant, could have

committed the crime. The defense’s case was exceptionally

weak in light of Appellant’s statements that Jackson was in the

2la

bathroom when she left and that she did not believe he injured

Destiny, as well as the evidence of Appellant’s admissions,

consciousness of guilt, and her rage at the time of Destiny’s

injuries. Finally, there was no credible refutation of the

Government timeline, which was persuasive evidence that

Destiny’s injuries were sustained while Jackson was locked in

the bathroom, given the few minutes that passed between when

Appellant left the apartment and when the 911 call was placed.

The materiality of the excluded extrinsic evidence of prior

inconsistent statements must be viewed with an eye to its

permissible purpose, which was for impeachment only. The

defense never sought to seek the admission of any of Jackson’s

statements, which presumably contained the same

inconsistency noted in the investigator’s notes, for use as

substantive evidence under M.R.E. 801(d)(1)(A) or any other

evidentiary rule.

As the lower court articulated and the record reveals,

defense counsel effectively impeached Jackson with respect to

the prior inconsistent statements by intrinsic evidence. Harrow,

62 M.J. at 656-57. While defense counsel did not move to

admit Jackson’s August 15 statement, he repeatedly referred to

it and Jackson’s other statements to investigators in his

cross-examination of Jackson. *201 Defense counsel

cross-examined Jackson at length regarding his lie to the FBI,

changes in his story between statements, his inability to

remember even after having the opportunity to review his prior

statements, his embellishment of his trial testimony beyond

what he relayed to investigators, and the fact that his memory

must have been better when the statements were given. And we

agree with the lower court that “defense counsel used this

impeachment extensively and effectively in his closing

argument.” /d. at 657.

22a

[9] Furthermore, the military judge gave an instruction

regarding inconsistent statements, reiterating the point that

Jackson's credibility was at issue. Members are presumed to

follow the military judge’s instructions, United States v.

Taylor, 53 M.J. 195, 198 (C.A.A.F.2000), and we have no basis

for concluding that they did not in this case.

The combination of cross-examination and argument by

the defense counsel impeached Jackson’s credibility and ability

to recall. The addition of the AFOSI agent’s testimony would

have been cumulative, and would not have changed the

arguments proffered by defense counsel to the members. Nor

would it have had a substantial influence on the members’

verdict. See Santos, 59 M.J. at 322 (reasoning cumulative

evidence was of little probative value); see also United States

v. Mitchell, 113 F.3d 1528, 1532 (10th Cir.1997) (finding

failure to admit extrinsic evidence of witness’s prior

inconsistent statement harmless where defense counsel asked

her whether she had made the statement; although she testified

she did not remember making the statement, the jury was aware

of the attack on her credibility). Under the facts of this case, we

cannot say that a thorough impeachment of Jackson’s

credibility and recollection was not completed even absent the

extrinsic evidence.

In light of all of the above factors, and given the purpose

for which M.R.E. 613 evidence may by used, the error was

harmless in this case.

B. M.R.E. 404(b) Evidence

1. Defense counsel moved in limine for several pieces of

evidence proffered by trial counsel to be excluded. The

evidence at issue was:

23a |

1) SSgt Quick’s testimony that Appellant thumped

the baby hard enough to make the baby scream.

2) AIC Mills’ testimony that Appellant flicked

Destiny on the body to punish her if Destiny reached

for something.

3) Nina Harris’ testimony that she observed

Appellant cali Destiny stupid and ugly, pull at

Destiny by jerking her arm, and grab her by the

cheeks and pinched them hard when she disobeyed.

4) Sharon Rogers’ and Deborah Gardner's |

testimony that they witnessed Appellant brushing the |

baby’s hair vigorously and without care, and Mrs.

Gardner’s testimony that she did so for six hours

straight after the baby’s brain surgery. This occurred

at the hospital after Destiny had been shaken.

5) Nina Harris’ testimony that on one occasion

Appellant left Destiny at the Harris’ without food or

diapers, then turned off her cell phone and did not

return that night.

The military judge ruled that the first three pieces of

testimony were admissible, but the last two were not.

In his ruling, the military judge determined that under

M.R.E. 404(b) the first three pieces of evidence tended to prove

a pattern of abuse, as well as intent. When the members were

properly instructed on the use of the M.R.E. 404(b) evidence,

however, they were instructed that it could only be used to

show Appellant’s intent or absence of accident. Appellant

contends that none of this evidence should have been admitted

and that it prejudiced her.

24a

2. A decision to admit evidence is reviewed for abuse of

discretion. United States v. McCollum, 58 M.J. 323, 335

(C.A.A.F.2003). In this case, the military judge applied the

correct test for the admissibility of uncharged misconduct

under M.R.E. 404(b). United States v. Reynolds, 29 M.J. 105,

109 (C.M.A.1989). This Court recently summarized*202 the

analysis under Reynolds: First, does the evidence reasonably

support a finding by the court members that Appellant

committed prior crimes, wrongs or acts? Second, what “‘fact ...

of consequence” is made “more” or “less probable” by the

existence of this evidence? And last, is the “probative value ...

substantially outweighed by the danger of unfair prejudice?”

United States v. Barnett, 63 M.J. 388. 394 (C.A.A.F.2006)

(citations omitted).

[10] The uncontroverted testimony describing each

incident of uncharged misconduct reasonably supports a

finding by the court members that Appellant did commit each

of these aileged prior acts.

We next address whether any of this evidence makes a fact

of consequence more or less probable. We begin by noting that

murder is a specific intent crime. This offense permits

conviction of lesser included offenses stemming from

Destiny’s death in the absence of specific intent to

kill-including but not limited to involuntary manslaughter,

assault consummated by a battery and negligent homicide.

Manual for Courts-Martial, United States pt. 1V, para. 45.d.

(2005 ed.) (MCM). While the defense did not argue accident,

evidence produced at trial, through Appellant’s statements to

investigators, supported an argument that the injurics might

have been accidentally inflicted. The prosecution was entitled

to present evidence to rebut such an argument.

2Sa

3. Appellant argues that intent evidence is never admissible

unless a defendant specifically defends on the ground of either

lack of the requisite intent or accident. The Supreme Court,

examining this same question, unequivocally determined that

evidence of intent and lack of accident may be admitted

regardless of whether a defendant argues lack of intent because

every element of a crime must be proven by the prosecution.

Estelle v. McGuire, 502 U.S. 62, 69, 112 S.Ct. 475, 116

L.Ed.2d 385 (1991) (citing Mathews v. United States, 485 U.S.

58, 64-65, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988)).

This Court has dealt inconclusively with the holding of

Estelle in prior cases on the ground that Estelle involved a state

rule of evidence. Compare United States v. Diaz, 59 M.J. 79,

95 n. 3 (C.A.A.F.2003) (distinguishing Estelle), and United

States v. Morrison, 52 M.J. 117, 122-23 (C.A.A.F.1999) (not

citing, but implicitly rejecting Estelle), with United States v.

Whitner, 51 M.J. 457, 461 (C.A.A.F.1999), and United States

v. Sweeney, 48 M.J. 117, 120 (C.A.A.F.1998) (embracing the

notion that the prosecution must prove every element).

This Court’s intermittent efforts to distinguish Estelle as

a Supreme Court case addressing state, rather than federal, law

does not detract from the force of the basic tenet asserted by

the Supreme Court: “A simple plea of not guilty ... puts the

prosecution to its proof as to all elements of the crime

charged....” Mathews, 485 U.S. at 64-65, 108 S.Ct. 883 (1988)

(reviewing a federal bribery conviction); see also Old Chief v.

United States, 519 U.S. 172, 199, 117 S.Ct. 644, 136 L.Ed.2d

574 (1997) (reviewing a federal firearm possession conviction).

4. But the question remains whether the relatively minor acts

admitted in this case under M.R.E. 404(b) in fact make intent

to kill or absence of accident more likely than not, and, if not,

whether Appellant was prejudiced by their admission.

26a

We agree that the relevance of these minor acts to the

intent to kill is tenuous, at best. But we need not resolve the

issue of error where, as here, the question of prejudice is easily

decided. United States v. Hall, 56 MJ. 432, 437

(C.A.A.F.2002); United States v. Nickoson, \5 C.M.A. 340,

344, 35 C.M.R. 312, 316 (1965).

We conclude that the admission of the acts under M.R.E.

404(b) did not prejudice Appellant. The Government adduced

evidence at trial that Appellant shook Destiny with great force

for at least twenty seconds and either threw her against a wall

or used other force sufficient to result in serious blunt force

trauma to Destiny’s brain and the left side of her face,

including significant hemorrhaging of the brain and eyes and,

ultimately, death. In the context of the entire case, we are *203

convinced that acts of “flicking,” “pinching,” or “thumping”

are minor acts that did not have a substantial influence on the

members’ verdict in this case. Indeed, in his argument on

findings, the trial counsel did not even mention any of the

uncharged misconduct.

For the reasons stated above-the weight of the remaining

evidence, combined with the weakness of the defense’s

case-we conclude that any error stemming from the admission

of this evidence did not substantially prejudice Appellant. See

Barnett, 63 M.J. at 397 (holding that when the government

presents a strong case, the defense presents a weak case, and

the erroneously admitted M.R.E. 404(b) evidence was “of

marginal importance given the difference in contexts” between

the specifications and the incidents recounted in the

erroneously admitted evidence, the error was harmless); United

States v. Baumann, 54 M.J. 100, 105 (C.A.A.F.2000)

(reasoning that when the “prosecution presented an

overwhelming case,” the appellant’s defense was “extremely

weak,” and the military judge properly instructed on the use of

27a

M.R.E. 404(b) evidence, the error was harmless); United States

v. Kerr, 51 M.J. 401, 405 (C.A.A.F.1999) (holding that when

the remainder of the Government’s case was strong and the

defense presented no evidence to contradict it, instead relying

“on suggestion and insinuation,” the M.R.E. 404(b) error was

harmless); United States v. Corbett, 29 M.J. 253, 256

(C.M.A.1989) (determining that inadmissible M.R.E. 404(b)

evidence had a minimal effect on the members, considering all

the other evidence presented at trial, the weakness of

appellant’s own testimony on the merits, and the inadmissible

evidence’s tenuous relevance); see also United States v. Davis,

657 F.2d 637, 640 (4th Cir.1981) (holding that erroneous

admission of M.R.E. 404(b) evidence was harmless when the

remaining evidence conclusively implicated the appellant);

United States v. Ezzell, 644 F.2d 1304, 1306 (9th Cir.1981)

(holding that where evidence of guilt is overwhelming, M.R.E.

404(b) error was harmless).

C. Profile Evidence

Dr. Cooper testified as an expert witness in the fields of

developmental and forensic psychiatry. She testified about

child abuse and shaken baby syndrome in general and he:

specific findings in this case. The defense did not challenge her

methodology or the relevance or reliability of her testimony.

The defense counsel did raise the issue of impermissible profile

evidence and reiterated their understanding that the

Government did not intend to offer such evidence. The

Government agreed.

Appellant challenges the following particulars of Dr.

Cooper’s testimony as impermissible profile evidence. First,

that the most common person to fatally abuse a child is a

biological parent. Defense counsel objected to this testimony,

but it was allowed by the military judge. Second, that the most

28a

common trigger for baby shakings is persistent crying, which

the defense did not object to at trial. Finally, Dr. Cooper’s

testimony about the symptoms and progression of shaken baby

syndrome and her medical conclusion that Destiny’s primary

diagnosis was probably most consistent with an inflicted injury,

as opposed to an accidental injury. Defense counsel objected,

and the military judge overruled the objection.

Dr. Cooper did not offer an opinion as to which parent

abused the child in this case. Appellant argues that all of the

testimony above constituted impermissible profile evidence

that placed Appellant in the profiled category and excluded

Destiny’s father from the profiled category.

[11] Profile evidence is evidence that presents a

characteristic profile or trait of an offender, and then places the

accused’s personal characteristic or trait within that profile as

proof of guilt. United States v. Rynning, 47 M.J. 420, 422

(C.A.A.F.1998). In United States v. Banks, this Court held that

“generally, use of any characteristic ‘profile’ as evidence of

guilt or innocence in criminal trials is improper.” 36 M.J. 150,

161 (C.M.A.1992). Such evidence is improper because it treads

too closely to character evidence offered to show that an

accused acted in conformity with that character and committed

the act in question, evidence prohibited under M.R.E. 404(b).

See Banks, 36 M.J. at 161.

*204 This Court recognizes that characteristic evidence of

the abuser is distinguishable from evidence that focuses on the

characteristics of a battered child. United States v. Traum, 60

M.J. 226, 235 (C.A.A.F.2004). Moreover, evidence of the

characteristics of a child abuser is further distinguishable from

evidence about the symptoms and progression of shaken baby

syndrome. This is true even if that medical testimony, tied to

29a

other facts adduced at trial, makes it more likely that an

accused is the one guilty of the charged offense.

[12][13] We agree with Appellant that two of Dr. Cooper’s

statements were inadmissible profile evidence. The statements

that the most common person to fatally abuse a child is a

biological parent, and the statement that the most common

trigger for baby shakings is persistent crying, are focused on

characteristics of the abuser, as opposed to characteristics of

the child. /d. at 234-35. But the other evidence complained

of-symptoms and progression of shaken baby syndrome-is not

profile evidence.

Of course, Dr. Cooper’s statements relating to profile

evidence pertained equally to both parents-Appellant and

Jackson were both Destiny’s biological parents, and Destiny’s

persistent crying was heard by both of them on the day she

sustained her fatal injuries.

[14] None of the profile evidence placed Appellant in the

profiled category and exclude Destiny’s father from the

profiled category. Rather, it placed them both squarely within

the profiled category. Given that the case focused on which

parent was responsible for the injury, and that the profile

evidence applied equally to each of them, we fail to see the

prejudice. Consequently, any error in admitting this evidence

was harmless.*

4 As the defense did not object at trial when Dr. Cooper testified

that the most common trigger for baby shakings is persistent crying, we

normally would review such errors under a plain error analysis. United

States v. Powell, 49 M.J. 460 (C.A.A.F.1998). We need not undertake a

separate plain error analysis in this case, as the issue can be resolved, along

with the evidence Appellant did object to, by determining whether any error

unduly prejudiced Appellant.

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30a

Appellant does not argue that evidence regarding the

progression and symptoms of shaken baby syndrome are either

inadmissible expert testimony or profile evidence per se.

Rather, the argument is that such testimony, described as a

“modified profile of Destiny’s child abuse,” constituted

impermissible profile evidence in this case because the

testimony lined up with other facts adduced at trial in a manner

that allowed the Government to argue that it was Appellant,

rather than Jackson, who committed the offense of

unpremeditated murder. We reject Appellant’s argument.

First, the evidence regarding the progressions and

symptoms of shaken baby syndrome focuses on the

characteristics of the child, and fits squarely within Traum.

Second, we are aware of no authority that suggests that

otherwise admissible expert testimony regarding the symptoms

and progression of a medical syndrome can be transformed into

profile evidence because the timing of the symptoms supports

an argument that it was the accused that committed the offense.

Evidence is not profile evidence simply because it tends to

incriminate an accused. The prohibition against profile

evidence does not prohibit otherwise admissible expert

evidence, simply because other facts tie the testimony to a

conclusion that an appellant was the one in the best position to

have committed the charged act.

D. Improvident Guilty Plea

Appellant contends her guilty plea to the larceny charge

stemming from her fraudulent insurance claim was

improvident. During the providency inquiry Appellant admitted

that she fraudulently made a claim to her insurance carrier so

that the carrier would pay for damage done to another airman’s

car. Appellant was not driving the car covered by her insurance

3la

carrier when she collided with the other airman’s vehicle. In

fact, the accident occurred before Appellant had the insurance

upon which she made the claim. Appellant did not tell the

insurance company either of these facts and intended that they

pay the claim. As a _ result of Appellant’s *205

misrepresentations, the insurance carrier paid the other airman

for damage Appellant did to his car in the accident.

[15}[16] This Court rejects a guilty plea only where the

record shows a substantial basis in law and fact for questioning

a plea. United States v. Roderick, 62 M.J. 425, 428

(C.A.A.F.2006). We review a military judge’s decision to

accept a guilty plea for an abuse of discretion. United States v.

Phillippe, 63 M.J. 307, 309 (C.A.A.F.2006). This Court

permits the military judge “in a borderline case ... [to] give

weight to the defense evaluation of the evidence.” United

States v. McCrimmon, 60 M.J. 145, 152 (C.A.A.F.2004) (citing

United States v. Clark, 28 M.J. 401, 407 (C.M.A.1989)).

Appellant does not question that the military judge

properly stated the elements of the offense of a

wrongful-obtaining larceny. Nor does Appellant contend that

Superior Insurance Company had any obligation to pay a claim

on an uncovered car for an accident that took place outside of

the coverage period. Appellant nonetheless questions the

factual sufficiency of the providency inquiry.

[17] A guilty plea is provident if the facts elicited make

out each element of the charged offense. See United States v.

Garcia, 44 M.J. 496, 498 (C.A.A.F.1996) (concluding that the

providence inquiry adequately established a factual basis

supporting each of those elements); United States v.

Davenport, 9 M.J. 364, 367 (C.M.A.1980) (holding that a plea

of guilty is provident where the factual circumstances as

32a

revealed by the accused himself objectively support the alleged

elements of the offense).

[18] In this case, the providence inquiry established that

insurance money in the amount of $729.65 was “wrongfully

obtained” from Superior Insurance for the use of Airman

(Amn) Hill, with the intent to defraud Superior Insurance of the

use and benefit of the money. See United States v. Riddle, 44

M.J. 282, 287 (C.A.A.F.1996) (establishing larceny for intent

to steal pay entitlements to which appellant did not believe he

was entitled). Appellant had no entitlement to insurance for an

accident prior to her coverage period, as she acknowledged. As

the providence inquiry shows, Appellant designated Amn Hill

to be the recipient of the Superior Insurance payment.

Appellant stated that she intended Superior Insurance to pay

the money and that she “learned that Superior Insurance paid”

Amn Hill.

A similar scenario is described in the MCM explanation of

the offense of an obtaining type larceny: if a person “obtained

the delivery of another’s goods to a person or place designated

by the accused,” the accused is guilty of larceny if the other

elements of the offense are proven. MCM pt. IV, para.

46.c.(1)(b). We reject Appellant’s suggestion that the military

judge’s failure to elicit how Appellant “knew it was her

representation that deceived the insurance company,” or “why

her misrepresentation was an important factor in the insurance

company’s decision to pay,” or “when the $729.65 was paid by

the insurance company to Airman Hill,” alone or together,

create any basis, let alone a substantial basis, in law or fact for

questioning the sufficiency of the plea to this offense. See

United States v. Faircloth, 45 M.J. 172, 174 (C.A.A.F.1996)

(declining to speculate post-trial on factual matters that might

have been contested at trial in the context of examining

whether a guilty plea was provident).

33a

We similarly reject Appellant’s argument that the motive

for committing this offense-that Appellant knew she was

supposed to pay Amn Hill for the damage to her car-sets up a

matter inconsistent with her plea. See, e.g., MCM pt. IV, para.

46.f.(i11)( A) (recognizing that the relevant inquiry is whether

the accused had the requisite intent). Appellant’s suggestion

that her motive in wrongfully obtaining the insurance money

somehow places the facts of this case within the framework of

a “debt or the amount thereof is not the proper subject of a

larceny,” United States v. Mervine, 26 M.J. 482, 483-84

(C.M.A.1988), is without merit.

E. Unauthorized Reduction in Pay Grade

At trial, Appellant pled guilty to being absent without

leave for four days. The Court of Criminal Appeals held that

her plea *206 on this charge was improvident. Harrow, 62 M.J.

at 662. After determining the plea was improvident the Court

of Criminal Appeals reassessed Appellant’s sentence to a

dishonorable discharge, twenty-four years and six months of

confinement, forfeiture of all pay and allowances, and

reduction to the grade of E-1. Because no reduction to E-1 was

adjudged at trial, Appellant argues that this was an unlawful

increase in her sentence.

[19][20] We review a sentence reassessment by a Court of

Criminal Appeals for obvious miscarriages of justice or abuses

of discretion. United States v. Buber, 62 M.J. 476, 478

(C.A.A.F.2006). The Government concedes that it was error to

reassess the sentence to include a reduction to E-1 when such

reduction was not adjudged at trial. At trial, Appellant was

already an E-1.

This abuse of discretion appears, however, to be an error

without any practical import, let alone, any prejudice. And

34a

Appellant identifies none. This is not surprising. No logic

suggests that the Court of Criminal Appeals would have

decreased some other portion of the sentence assessment if it

understood that another portion of the sentence, the reduction

in rank, was not available to it.

Thus, while we agree that the lower court abused its

discretion in assessing a reduction to E-| that was not adjudged

at trial, where Appellant was already an E-1, it is an increase in

punishment only in the most technical of senses, since the

reduction was void ab initio, and a nullity. We decline to

remand the case for a sentence reassessment under these

particular facts, for correction of an error that has not had, and

never could have, any negative effect upon Appellant. Rather,

we set aside that portion of the Court of Criminal Appeals

decision purporting to affirm reduction to E-1.

F, Post-trial and Appellate Delay

The final issue is whether Appellant was deprived of her

right to due process by the 1,467 days that elapsed between her

trial and completion of appellate review. Of that delay, 826

days was time between when the final briefs were submitted to

the Court of Criminal Appeals and the issuance of its decision.

Appellant contends she was prejudiced because, due to the

appellate delay, her lead appellate counsel was unable to argue

her case.

[21] In this case, the overall delay of 1,467 days between

the trial and completion of review at the Court of Criminal

Appeals is facially unreasonable. Because we conclude that the

delay is facially unreasonable, we examine the four factors set

forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33

L.Ed.2d 101 (1972):(1) the length of the delay; (2) the reasons

for the delay; (3) the appellant’s assertion of the nght to timely

35a

review and appeal; and (4) prejudice. United States v. Moreno,

63 M.J. 129, 135-36 (C.A.A.F.2006). We need not engage in

a separate analysis of each factor where we can assume error

and proceed directly to the conclusion that any error was

harmless beyond a reasonable doubt. See United States v.

Allison, 63 M.J. 365, 370 (C.A.A.F.2006). This approach is

appropriate in Appellant’s case.

Having considered the totality of the circumstances and

entire record, we conclude that any denial of Appellant’s right

to speedy post-trial review and appeal was harmless beyond a

reasonable doubt and that no relief is warranted.

CONCLUSION

In evaluating Appellant’s assignments of error we have

considered not only the impact of each individual error, but

also any cumulative prejudice that could have arisen from a

combination or errors. See Banks, 36 M.J. at 170-71. We

conclude that neither individually nor in combination was

Appellant prejudiced by the errors in this case. The decision of

the United States Air Force Court of Criminal Appeals, except

for that portion purporting to affirm a reduction to E-1, is

affirmed.

36a

EFFRON, Chief Judge (concurring in part and in the result):

I concur in the majority opinion, subject to the following with

respect to Issues | and III: While I have reservations both as to

the *207 adequacy of the opportunity to impeach Antonio

Jackson and as to the admissibility of Appellant's prior acts of

misconduct, I agree with the majority that any errors in regard

to those matters were harmless in view of Appellant’s pretrial

statements and the other evidence in the case.

U.S. Armed Forces,2007.

U.S. v. Harrow

65 M.J. 190

37a

APPENDIX B

62 M.J. 649

U.S. Air Force Court of Criminal Appeals,

UNITED STATES

Vv

Airman Basic Ashontia K. HARROW,

United States Air Force.

ACM 35257.

Sentence Adjudged 25 Jan. 2002.

Decided 31 Jan. 2006.

*651 Appellate Counsel for Appellant: Captain Christopher S.

Morgan (argued), Colonel Beverly B. Knott, Colonel Carlos L.

McDade, Major Terry L. McElyea, and Major Antony B.

Kolenc.

Appellate Counsel for the United States: Captain C. Taylor

Smith (argued), Colonel LeEllen Coacher, Lieutenant Colonel

Garv F. Spencer, Lieutenant Colonel Robert V. Combs, and

Major John C. Johnson.

Before STONE, Senior Judge, GENT, and SMITH, Appellate

Military Judges.

OPINION OF THE COURT

STONE, Senior Judge.

A panel of officer and enlisted members convicted the

appellant, contrary to her pleas, of the unpremeditated murder

of her daughter, in violation of Article 118, UCMJ; 10 U.S.C.

§ 918. She pled guilty to 13 additional offenses, to include:

38a

multiple failures to go, absence without leave, making a false

official statement, theft of insurance proceeds, fraud in

obtaining phone services, dishonorable failure to pay just debts,

and making false claims to secure the approval of a loan.

These offenses violated Articles 86, 107, 121, and 134, UCMJ,

10 U.S.C. §§ 886, 907, 921, 934. The court members’

adjudged sentence included a dishonorable discharge,

confinement for 25 years, and forfeiture of all pay and

allowances. The convening authority approved the sentence as

adjudged.

The appellant assigns eight errors: (1) Whether the record

of trial is incomplete and not substantially verbatim; (2)

Whether the military judge erred in not admitting extrinsic

evidence of a prior inconsistent statement to impeach a key

government witness; (3) Whether the evidence is legally and

factually sufficient to support the appellant’s murder

conviction; (4) Whether the military judge erred in admitting

expert testimony; (5) Whether the military judge erred in

admitting uncharged misconduct evidence; (6) Whether one of

the government’s expert witnesses abandoned her neutral role

and provided a biased and unreliable opinion based upon

insufficient facts or data; (7) Whether the appellant’s pleas of

guilty to three offenses were provident; and (8) Whether the

appellant received ineffective assistance of counsel.’

Having carefully reviewed the record of trial, the written

submissions of the parties, *652 and the excellent oral

arguments of counsel,” we hold that the appellant’s guilty pleas

, This last issue is raised pursuant to United States v. Grostefon,

12 M.J. 431 (C.M.A.1982).

As part of this Court’s Project Outreach Program, we held oral

argument on Issues (1) and (2) at the Air War College, Maxwell Air Force

Base, Alabama.

39a

to one of the specifications was improvident, and therefore set

aside and dismiss that finding and reassess the sentence. The

remaining assignments of error are without merit. We discuss

most of them below.

FACTUAL BACKGROUND

This case involves the death of Destiny Harrow, the

appellant’s five-month-old daughter. Expert testimony

established that Destiny died as the result of abusive head

trauma, more commonly referred to as shaken baby syndrome.

She sustained blunt force trauma to her brain and the left side

of her face on the morning of 23 June 2000, and suffered

significant hemorrhaging of the brain and eyes. She died

approximately five months later. At trial, the cause of death

was uncontested. The central evidentiary issue was whether

the injuries were caused by the appellant or by Destiny’s

biological father, Antonio Jackson.

Prior to her death, Destiny lived in government housing on

Eglin Air Force Base, Florida, with the appellant. Mr. Jackson,

who lived out of state, was visiting the appellant for a few days

and staying in her on-base apartment. On the morning of 23

June 2000, the appellant went to work, leaving Destiny with

Mr. Jackson. Between 1045 and 1130 hours, the appellant

came home for lunch. She departed at approximately 1455

hours. Although the record does not address everything that

happened during this period, certain events are clearly

established.

The appellant’s next-door neighbors, Mr. and Mrs. Harris,

testified about what they saw and heard that day. Mrs. Harris

testified that the morning was quict. In the afternoon she heard

the appellant “yelling and arguing, loud screaming, cursing,

{and] very bad language” for about 30 to 45 minutes. Mrs.

40a

Harris did not hear Mr. Jackson at all, but heard Destiny crying

for about 10 minutes, and then heard a “loud, hard bang”

against the wall adjoining their two apartments. She testified,

“My picture fell off. And I didn’t hear [Destiny] cry anymore.

I heard her whimper twice and that was it.”

About five minutes after hearing the bang against her wall,

Mrs. Harris saw the appellant leave the apartment and drive

off. Mrs. Harris described the appellant’s face as “very angry

and very raged,” and she testified the appellant slammed the

front door so hard the Harris doorbell rang. She said the

appellant went to her car, slammed the door, and “drove away

real fast. She spun her tires out [so] that you could hear the

gravel hit the sidewalk.” Mr. Jackson came over to her

apartment “within a minute” after the appellant’s departure, in

great distress, holding Destiny and asking for assistance.

Mr. Harris provided similar testimony. He noted that their

apartments were very small and had extremely thin walls. He

said he also heard “thumps” and the appellant “yelling” for

about 30 minutes. He then heard a door slam and saw the

appellant “spin out” of the driveway in her car. A “short time”

later, he testified, Mr. Jackson came over with Destiny and

asked him to call an ambulance. Mr. Jackson could not call

911 from the appellant’s apartment because she did not have a

telephone.

Mr. Jackson also testified about the events of that day. He

said the appellant rested on the couch for a period of time. At

one point, he went to the bathroom to shave. He testified the

appellant began “fussing,” “arguing,” “spitting,” “yelling,” and

37 46 99 66

“screaming” at him. In order to avoid a confrontation, he

moved into the living room, where Destiny was sitting on the

couch. The appellant grabbed Destiny off of the couch and held

her by the arm as she walked around the room. She held

4la

Destiny this way throughout the argument. When Mr. Jackson

told the appellant not to take her anger out on Destiny, the

appellant told him, “No, this is my baby. I do what I want with

my baby.” To avoid further angering the appellant, he testified

he then returned to the bathroom, locked the door, turned up

the radio, and sat down on the toilet seat. He could still hear the

appellant “screaming,” things hitting the walls, and doors

slamming. He also remembered hearing a knock on the door.

When it was *653 quiet, he left the bathroom and walked to the

front door and saw the appellant pulling out of the driveway

and speeding off.

Mr. Jackson then turned from the front door and saw

Destiny lying quietly on the couch. He found Destiny’s bottle

and laid it in her hand. As he headed back to the bathroom to

finish shaving, he said he almost immediately heard a

“gargling” noise coming from Destiny. He went over to her and

saw she had a thick, pasty vomit coming out of her mouth. He

picked her up, turned her over, patted her on the back and saw

additional vomit coming out of her mouth. At this point, he

testified, she started shaking and her back arched. All he could

see were the whites of her eyes. She then went limp. Expert

testimony indicated this description fit the classic symptoms of

a tonic seizure, which probably would not occur until more

than two to three minutes after a severe shaking incident. In

other words, it would be unlikely for a tonic seizure to be the

first and most immediate symptom of a baby that had been

severely shaken.

Mr. Jackson testified he “immediately” ran next door to

call 911. He testified that only a “few minutes” elapsed

between the time the appellant sped off and the time he

knocked on the Harris door.

42a

Neither Mr. Jackson nor the Harrises observed a visit to

the appellant’s apartment by Senior Airman (SrA) Warren, a

patrolman assigned to Security Forces. He was on patrol that

day when he received a dispatch to go to the appellant’s home

and advise her to contact her unit first sergeant. This was not

an unusual event. Because the appellant did not have a phone

in her apartment, the first sergeant used this method to contact

her. The appellant told him she had been to an appointment and

was on her way back to work. SrA Warren testified she did not

appear angry, flushed, or excited and that she held Destiny on

her left hip while standing in the door. He was within an arm’s

length of the appellant and Destiny and observed no signs of a

struggle and heard no shouting, yelling, slamming, or throwing.

He made eye contact with Destiny, who seemed “responsive.”

Upon delivering the first sergeant’s message, he departed.

Based upon police and ambulance dispatch records, Sr A

Warren’s testimony, and the appellant’s statements to

investigators, the following chronology covers the 13-minute

period from 1445 to 1458:

1445 hours-SrA Warren dispatched to deliver a message to the

appellant

1450 hours-Approximate arrival of SrA Warren

1451 to 1452 hours-Approximate departure of SrA Warren

1456 to 1457 hours-Approximate departure of the appellant’

1458 hours-911 call from the Harris apartment

Law enforcement officials interviewed the appellant four

times. In her first interview she attempted to explain Destiny’s

injuries by saying it was probably an accident at the hands of

3

In discussions with investigators afterwards, the appellant said

she left her apartment approximately five minutes after SrA Warten arrived

at the apartment.

43a

Mr. Jackson. She claimed Mrs. Harris had told her that when

Mr. Jackson brought Destiny over to her apartment to call 911,

he shook Destiny vigorously trying to get a response-so

vigorous, in fact, that Mrs. Harris had to tell Mr. Jackson to put

Destiny down. Upon interviewing Mrs. Harris, investigators

learned she had never witnessed Mr. Jackson shaking Destiny

and, more importantly, she had never made such a statement to

the appellant. Consequently, investigators began focusing on

the appellant as the primary suspect.

In the second interview, the appellant admitted to

investigators that she argued with Mr. Jackson for 20 to 30

minutes, but was adamant that she was not angry or frustrated.

She told investigators Mr. Jackson was in the bathroom when

SrA Warren came to the door and when she left the apartment.

She also said she might have caused Destiny’s injuries while

tossing her in the air playfully or as she “jerked” around

quickly after talking with SrA Warren. She also told

investigators that Destiny was not crying when she left the

apartment.

*654 Omissions in the Record of Trial

During the course of the government’s case-in-chief, the

court reporting equipment malfunctioned.

Approximately 15 to 20 minutes of Mr. Jackson’s

testimony was lost. His direct and cross-examination were

recorded, but the government’s redirect and his responses to

the court members’ questions were not. Additionally,

discussions concerning a government request to admit evidence

went unrecorded.

The appellant contends the record of trial is incomplete

and not substantially verbatim, as required by Rule for

44a

Courts-Martial (R.C.M.) 1103(b)(2)(B), because of the partial

loss of Mr. Jackson’s testimony and the complete loss of the

motion argument and ruling by the military judge. She asks that

we disapprove her dishonorable discharge and any confinement

in excess of six months. The government agrees that the

omissions from the record were substantial, but contends the

record is adequate to rebut any presumption of prejudice. If this

Court were to determine prejudicial error as the result of the

omissions, the government argues the proper remedy is to

dismiss the affected charges without prejudice.

[1][2] Whether a record of trial is incomplete is a

question of law we review de novo. United States v. Henry, 53

M.J. 108, 110 (C.A.A.F.2000). Records of trial that are not

substantially verbatim or are incomplete cannot support a

sentence that includes a punitive discharge, confinement in

excess of six months, or forfeiture of pay for more than six

months. R.C.M. 1103(b)(2)(B). See also Articles 19 and

54(c\ 1), UCMJ, 10 U.S.C. §§ 819, 854(c)(1). The

requirement that a record be complete and substantially

verbatim is one of jurisdictional proportion that cannot be

waived. Henry, 53 M.J. at 110; see also United States v.

Whitney, 48 C.M.R. 519, 1974 WL 13848 (C.M.A.1974).

[3] Failure to comply with R.C.M. 1103(b)(2) “does not

necessarily require reversal.” United States v. Abrams, 50 M.J.

361, 363 (C.A.A.F.1999). However, a substantial omission

renders a record of trial incomplete and raises a presumption of

prejudice that the government must rebut. United States v.

McCullah, 11 M.J. 234, 237 (C.M.A.1981). In McCullah, our

superior court concluded that the issue of what constitutes a

substantial omission is reviewed on a case-by-case basis. /d.

45a

a. Mr. Jackson’s Testimony

[4] The trial participants agreed that Mr. Jackson’s

testimony could be reconstructed without the presence of the

court members. Mr. Jackson was present and answered

questions anew. The trial counsel repeated her redirect

examination, and the military judge repeated the questions

posed by the members. The military judged worked through

the discrepancies the parties noticed and gained their assent to

the modifications. Both sides asserted they were satisfied the

reconstruction was accurate.

The government claims the record was adequately

reconstructed so as to rebut any presumption of prejudice. A

number of considerations support this position:

1. The omission was noticed tmmediately, and reconstruction

efforts began while the testimony was still fresh in everyone’s

mind;

2. The military judge, three trial counsel, three defense

counsel, the appellant, and the witness were present during the

reconstruction;

3. The judge, the parties. and the witness took an active role

in the reconstruction;

4. The parties and the judge relied not only on their

recollection of the testimony, but also the notes they took while

Mr. Jackson testified;

5. Noone objected; and

6. The judge, counsel, and the appellant agreed the

reconstruction was adequate.

On the other hand, the appellant highlights the critical,

qualitative nature of Mr. Jackson’s testimony. She also

suggests that the military judge should have followed the

methodology endorsed in United States v. Watts, 22 M.J. 909,

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46a

910 (A.F.C.M.R.1986), for correcting recording errors.

Specifically, she believes the military judge should have

instructed the court members to disregard Mr. Jackson’s lost

testimony and then recalled *655 him to the stand to repeat the

missing portions in front of them.

[5] Our careful review of the reconstructed testimony

leads us to conclude that the government has overcome the

presumption of prejudice as to Mr. Jackson’s testimony. In

addition to the considerations listed above, we note that the

parties were meticulous in their re-creation of this critical

evidence. Both sides frequently referred to their notes and

modified Mr. Jackson’s responses when they identified

deviations or additions from his earlier testimony. Moreover,

the court members’ questions were in writing, and the military

judge had the benefit of posing the exact questions initially

addressed to Mr. Jackson. Further, we note that although the

reconstruction was not done in front of the court members as

suggested in Watts-the preferred method of dealing with such

omissions-failure to do so is not dispositive. See United States

v. Griffin, 17 M.J. 698, 699 (A.C.M.R.1983) (“The method of

reconstruction is not a matter of principal concern”).

b. The Motion

[6] At trial, it appears the parties believed the argument

on the government's motion to admit evidence had been

preserved, thus they made no effort to reconstruct it. Further,

when it came time to authenticate the record of trial and take

final action, no one addressed the omission.

Commendably, current court-martial practice does not

involve the use of unrecorded sidebar conferences, but earlier

in our history they were more routine and led to a fair amount

of litigation. We find the current situation very similar to that

47a

of an unrecorded sidebar conference, and thus turn to that body

of law for guidance. “Not every sidebar conference must be

recorded verbatim, but one involving a ruling by the judge

affecting rights of the accused at trial must be fully recorded if

the transcript is to be verbatim.” United States v. Gray, 7 M.J.

296, 298 (C.M.A.1979) (quoting United States v. Sturdivant, |

M.J. 256, 257 (C.M.A.1976) (per curiam)) (emphasis added);

see also United States v. Richardson, 45 C.M.R. 157, 1972 WL

14146 (C.M.A.1972).

Because the government has conceded that this omission

was substantial, we will only address whether the government

has overcome the presumption of prejudice. We conclude the

government has met that burden.

When the parties went back on the record after learning of

the equipment malfunction, the judge said, “[T]he last thing

that was recorded that could be detected was there had been a

[government] motion for an admission of a prior consistent

statement by Mr. Jackson. During a [session held pursuant to

Article 39, UCMJ, 10 U.S.C. § 839], | went ahead and ruled

against that particular motion.” Thus, based solely upon the

record, we do know the general nature of the evidence and the

judge’s ruling on it. Cf United States v. Desciscio, 22 M.J. 684

(A.F.C.M.R.1986). The military judge ruled in favor of the

appellant, and even after considering the trial defense counsel’s

post-trial affidavit, we are confident the appellant’s interests

were not prejudiced by the omission from the record.* See

4

In his affidavit, the trial defense counsel suggests that the

government made comments about the proffered testimony in front of the

court members. He states he cannot recall whether or not he asked the judge

for a limiting instruction, which was his “usual practice” under such

circumstances. Even after making all reasonable inferences in favor of the

appellant, as required by McCullah, 11 M.J. at 237, we conclude his claim

that he may have requested a limiting instruction is simply too speculative.

48a

generally United States v. Simmons, 54 M.J. 883, 887

(N.M.Ct.Crim.App.2001).

Impeachment of Mr. Jackson with Prior Inconsistent

Statements

[7] The appellant next argues the military judge erred

when he denied her the opportunity to impeach Mr. Jackson

with extrinsic evidence of prior inconsistent statements

pursuant to Mil. R. Evid. 613(b). According to the appellant,

two aspects of Mr. Jackson’s testimony were inconsistent with

Statements he made to investigators. Only one merits

discussion-whether Mr. Jackson’s in-court testimony was

inconsistent *656 with a statement that Destiny was crying

immediately after the appellant left the house.

For the defense, this was a key point given their theory of

the case-that it was “more likely” Mr. Jackson who was

responsible for shaking Destiny. Because expert testimony

indicated an infant’s crying often triggers inappropriate

shaking, the defense argued Destiny’s crying might have

caused him to shake her out of frustration or in an effort to

quiet her. Further, if Destiny was crying at this juncture, it may

have indicated she was in a “lucid interval,” a mental status

that may have been medically inconsistent with the onset of a

tonic seizure almost immediately after the appellant’s

departure.

Trial defense counsel cross-examined Mr. Jackson

extensively about whether Destiny was crying when the

Indeed, we find it more likely than not that the trial defense counsel is

referring to an earlier, verbatim ruling where the trial counsel brought up

Mr. Jackson’s written statement, yet trial defense counsel did not ask for a

limiting instruction.

49a

appellant left the house. Mr. Jackson said he could not

remember making a statement to that effect to investigators.

Even after efforts to refresh his recollection, he did not

remember saying the child was crying at that point in time.

The trial defense counsel’s proffer as to the inconsistent

statement was that Mr. Jackson had told investigators that

Destiny was “crying after [the appellant] left, and furthermore

that he described the cry as ‘crying as if she missed her mother

because she had just left.’ ”

Mil. R. Evid. 613(b) states, “Extrinsic evidence of a prior

inconsistent statement by a witness is not admissible unless the

witness is afforded an opportunity to explain or deny the same

and the opposite party is afforded an opportunity to interrogate

the witness thereon, or the interests of justice otherwise

require.” If the witness admits the inconsistency, then extrinsic

evidence is generally not admissible. If the witness denies

making the statement, or equivocates, Mil. R. Evid. 613(b)

authorizes the admission of these statements. United States v.

Meghdadi, 60 M.J. 438, 444 (C.A.A.F.2005). However, such

evidence is considered only for credibility purposes, not to

establish the truth of the matter, i.e., it is admissible for

impeachment rather than substantive purposes.”

As a preliminary matter, however, the proponent of the

evidence must establish an inconsistency between the in-court

and out-of-court statements. At trial, the military judge

concluded that a failure to remember was not an inconsistency.

He also concluded that Mr. Jackson never “denied that she was

crying.” Based upon these determinations, the military judge

excluded the investigator’s testimony.

: However, if the evidence otherwise qualifies under Mil. R. Evid.

801(d)(1)(A), the evidence would be admissitle as substantive evidence.

-_ —_ - — — ——_—~--~. ————— _

Na

We will review his findings of fact and application of these

facts to the law for an abuse of discretion. United States v.

Gore, 60 M.J. 178, 187 (C.A.A.F.2004). This “standard of

review recognizes that a judge has a range of choices and will

not be reversed so long as the decision remains within that

range.” /d. This is a strict standard requiring more than a mere

difference of opinion. United States v. McElhaney, 54 M.J.

120, 130 (C.A.A.F.2000). A military judge must be accorded

reasonable discretion in determining whether a claim of faulty

memory is inconsistent with statements previously given.

United States v. Insana, 423 F.2d 1165, 1170 (2d Cir. 1970).

In United States v. Damatta-Olivera, 37 M.J. 474, 478

(C.M.A.1993), the Court of Military Appeals noted, in dicta,

that an assertion of an inability to recall is a sufficient basis to

establish an inconsistency, stating: “[W]hether testimony is

inconsistent with a prior statement is not limited to

diametrically opposed answers but may be found as well in

evasive answers, inability to recall, silence, or changes of

position.” But cf. United States v. Grubbs, 776 F.2d 1281, 1287

(Sth Cir.1985) (a claim of faulty memory does not constitute an

inconsistent statement).

Looking at Mr. Jackson’s testimony broadly and in

context, it would have been reasonable to determine his

testimony at trial was inconsistent with his prior statement to

investigators and that Mr. Jackson’s responses to trial defense

counsel’s questions amounted to a denial or equivocation. But

given the deference we apply when reviewing an

evidentiary*657 ruling, we cannot conclude the military judge

was unreasonable, and therefore abused his discretion by

concluding otherwise.

[8] Moreover, even if we assumed the military judge

erred in not allowing the appellant to put on extrinsic evidence

Sha

on this point, we do not find substantial prejudice to the

appellant’s material rights. Article 59(a), UCMJ, 10 U.S.C. §

859(a). The appellant argues we must apply constitutional

harmless error because her Sixth Amendment right to confront

a witness was violated. If this were the case, we would reverse

unless the government established that error was harmless

beyond a reasonable doubt. But this stricter standard of review

is appropriate only when cross-examination is limited “in a

manner that precludes an entire line of relevant inquiry.”

United States v. Israel, 60 M.J. 485, 488 (C.A.A.F.2005). We

will assess prejudice in this case by applying a harmless error

analysis because the “relevant inquiry” was limited only as to

extrinsic impeachment, not intrinsic impeachment.

The government’s evidence, generally, was very strong.

But on this point, it was overwhelming. The appellant herself

told investigators that the baby stopped crying before she left.

Ms. Harris also testified that Destiny stopped crying

immediately after hearing a bang that knocked a picture off her

wall and prior to the appellant’s departure.

Additionally, the defense’s cross-examination had already

effectively impeached Mr. Jackson. When he failed to recall

making the statement to investigators, trial defense counsel

produced Mr. Jackson’s written statement and had him review

it in front of the members in an effort to refresh his

recollection. Trial defense counsel also questioned him about

the notes investigators made of the interview. The clear import

of these trial tactics was that Mr. Jackson’s statement did

include a comment that Destiny cried after the appellant left the

house. Thus, the defense successfully impeached Mr.

Jackson's testimony intrinsically by referring to the written and

verbal statements he made to investigators and attempting to

refresh his recollection. Trial defense counsel used this

impeachment extensively and effectively in his closing

52a

argument. The presentation of testimony from the investigator

would not have added significantly to the impeachment of Mr.

Jackson or substantially furthered the defense’s theory of the

case.

Finally, even assuming Mr. Jackson did tell investigators

that Destiny was “crying as if she missed her mother,” such a

description is ambiguous-it could describe a cry that is either

a soft “whimper” or a vigorous wailing. Consequently, the

excluded testimony is subject to varied interpretation, and thus

its overall “materiality” and “quality” is rendered debatable.

See generally United States v. Kerr, 51 M.J. 401, 405

(C.A.A.F.1999).

In view of these circumstances, we have no difficulty in

concluding any error in excluding this evidence was harmless.

See Id.

Profile F vidence

[9] Next the appellant contends that the military judge

erred in allowing one of the government’s expert witnesses to

present “profile” evidence concerning a typical child abuser.

Specifically, he challenges expert testimony from Dr. Sharon

Cooper, a forensic pediatrician. Dr. Cooper testified that:

|. Biological parents are the most common people to fatally

abuse their children;

2. The highest level of fatal child abuse 1s in infants under the

age of 12 months;

3. The most significant trigger for a baby shaking incident is

“persistent crying”; and

4. Medical professionals consider certain behavioral factors

to determine if an injury is accidental or “inflicted.”

53a

The appellant did not raise this issue at trial, and thus we

review for plain error using the three-part analysis established

in United States v. Powell, 49 M.J. 220, 225 (C.A.A.F.1998).

After we received briefs and heard arguments on this case,

our superior court decided United States v. Traum, 60 M.J. 226

(C.A.A.F.2004), cert. denied, 543 U.S. 1055, 125 S.Ct. 920,

160 L.Ed.2d 779 (2005), a case that involved a challenge to

testimony very similar to that offered in the case before us.

Indeed, Dr. Cooper also served as an expert *658 witness in

Traum. Our superior court held that expert testimony indicating

a biological parent is “the most likely person to kill a child”

was impermissible profile evidence. /d. at 233. The accused in

Traum suffocated her 1 8-month-old child. She was home alone

with the child at the time of the injuries, and the expert

testimony could have only applied to her. In the case at hand,

though, we have another parent as a potential suspect, and the

testimony applied equally to both. Thus, on the facts before us,

we conclude that admission of this testimony was an obvious

or clear error, but otherwise harmless. See Powell, 49 M.J. at

225.

{10} As to Dr. Cooper’s testimony that fatal child

abuse is most common in infants under the age of 12 months,

we find this to be permissible testimony about the

“characteristics of a battered child.” See Traum, 60 M.J. at 235.

The same holds true for Dr. Cooper’s testimony indicating that

the most significant trigger for a baby-shaking event is

persistent crying. Neither statement is impermissible profile

evidence because of the focus on the child, rather than the

parent. Consequently, we conclude this was not error, plain or

otherwise.

[11] We next turn to the testimony concerning the

behavioral factors used by medical professionals in reaching a

54a

diagnosis of non-accidental injury. Dr. Cooper testified that

doctors look at three things to determine whether an injury was

intentional or accidental: (1) The history given by the person

seeking medical care for the child and anyone else who may

have been in the environment; (2) The behavior of those caring

for the child; and (3) The findings from the physical

examination. Because the Harrises’ testimony established that

Mr. Jackson was very caring and that the appellant appeared

less so, the appellant argues this testimony effectively took Mr.

Jackson out of the profile.

Dr. Cooper’s testimony about this three-factor analysis

was much the same as her testimony in 7raum. Our superior

court concluded her testimony describing the analysis was

proper because the record supported a conclusion that this

methodology was relied upon by experts in the field of forensic

pediatrics. /d. at 234-35. See also Mil. R. Evid. 702. The same

holds true in the present case. Dr. Cooper’s testimony was

provided “in the context of her general description of fatal

child abuse.” See Traum, 60 M.J. at 234. Moreover, apart from

Dr. Cooper describing this analysis as one that doctors consider

for diagnostic purposes, we are unable to discern any attempt

by the governrnent to create a “profile” of a typical child abuser

by linking the Harrises’ testimony to her expert testimony. In

any event, the Harris testimony was independently admissible.

Uncharged Misconduct faveiving Minor Parental Abuse

The appellant next argues the military judge erred in

admitting uncharged imisconduct evidence involving the

testimony of three witnesses. See Mil. R. Evid. 404(b).

The first of these witnesses was Airman (Amn) Mills. She

testified the appellant and Destiny were in her dormitory room

a few weeks prior to 23 June 2000. The baby was

5Sa

approximately five months old at the time and teething. She bit

her mother’s hand, and the appellant then “grabbed her and told

her that it hurt.” According to Amn Mills, the appellant “kind

of bit her hand back.” Destiny cried, but the bite did not cause

any bleeding or marks. Amn Mills also testified that when

Destiny “would try to reach for something that she didn’t need

to be touching or [the appellant] didn’t want her to have, she

would kind of flick her hand, like a pluck on the hand, and tell

her to stop.”

The second witness to testify was Staff Sergeant (SSgt)

Quick, who was at a restaurant with the appellant and Destiny

when the child became restless and irritable. According to

SSgt Quick, Destiny was “fussing and kicking and fighting

because she didn’t want to sit down. And [the appellant]

thumped her on the thigh.” She described it as a loud flick that

caused everyone in the restaurant to turn and look. Destiny

cried, and the appellant told her she “knew better.”

Mrs. Harris testified about another incident, stating: “It

was in the afternoon time. I was at [the appellant’s] house, and

she was trying to put her shoe on to go somewhere. *659 And

Destiny would not hold her foot still to put her shoe on. [The

appellant] ... jerked her by her arm real tightly and grabbed her

face real tightly and squeezed her cheeks and called her stupid

and ugly.” The court members asked several questions about

this, including whether it was just the one time, and Mrs. Harris

indicated that it was only once. They also asked whether she

saw other abusive behavior. The judge did not permit this

question to be answered.

At trial, the appellant challenged this uncharged

misconduct evidence in a motion in limine prior to the

56a

presentation of evidence.° In ruling on the motion, the military

judge applied the following three-part test found in United

States v. Reynolds, 29 M.J. 105, 109 (C.M.A.1989), to

determine admissibility under Mil. R. Evid. 404(b):

1. Does the evidence reasonably support a finding by the

court members that the appellant committed the prior crimes,

wrongs, or acts?

2. What fact of consequence is made more or less probable

by the existence of this evidence? Mil. R. Evid. 401.

3. Is the probative value of the evidence substantially

outweighed by the danger of unfair prejudice? Mil. R. Evid.

403.

The military judge found the evidence sufficiently reliable

to support a finding that the appellant committed these acts. On

appeal, the appellant does not challenge this portion of the

ruling. The record readily establishes that prong | of the

Reynolds analysis was met, and so we turn to prong 2.

[12] Uncharged misconduct offered under Mil. R.

Evid. 404(b) is not admissible if it “is offered simply to prove

that an accused is a bad person.” United States v. Humpherys,

57 M.J. 83, 90 (C.A.A.F.2002). See also Huddleston v. United

States, 485 U.S. 681, 686, 108 S.Ct. 1496, 99 L.Ed.2d 771

(1988) (“The threshold inquiry a court must make before

admitting similar acts evidence under [Mil. R. Evid.] 404(b) is

whether that evidence is probative of a material issue other

than character.”). However, it is a “rule of inclusion, not

exclusion.” Humpherys, 57 M.J. at 90.

. The trial defense counsel appropriately challenged this evidence

in a motion in limine. However, we note that military judges should exercise

caution in ruling on the admissibility of uncharged misconduct evidence

prior to the presentation of evidence and before its materiality is clearly

established.

S7a

The military judge initially concluded the testimony of

these three witnesses was admissible “to show a pattern of

child abuse in the past and reflecting the intent of the accused

for the acts alleged on 23 June 2000.” He modified this in his

final instructions to the court members, stating the evidence

was admitted for the “limited purpose of its tendency, if any, to

prove that the accused intended to murder or inflict great

bodily harm upon Destiny Harrow, or to rebut the contention

that the accused accidentally injured Destiny.” On appeal, the

government argues that the evidence is relevant to intent, that

is, her “state of mind” on 23 June 2000, but does not rely on

absence of an accident as instructed by the military judge.

[13] When uncharged misconduct evidence is offered

to prove intent, “the relevancy of the other crime is derived

from the accused’s possession of the same state of mind in the

commission of both [offenses].” United States v. Rappaport,

22 M.J. 445, 447 (C.M.A.1986). The state of mind does not

have to be identical, but must be “sufficiently similar to make

the evidence of the prior acts relevant on the intent element of

the charged offenses.” United States v. McDonald, 59 M.J.

426, 430 (C.A.A.F.2004). The link between the charged and

uncharged misconduct must “permit meaningful comparison.”

Id.

The flicking, thumping, and biting incidents reflect a state

of mind indicating the appellant responded to Destiny’s

irritating, yet normal, behavior with deliberate, inappropriate

physical force. We find these incidents are highly similar to

Mr. Jackson’s description of the appellant grabbing Destiny off

of the couch on the morning she was injured. He said the

appellant held Destiny by one arm and jerked her around. In

response to Mr. Jackson’s plea to not take her anger out on

Destiny, she replied, “1 do what *660 | want with my baby.”

When viewed in the context of all of the facts and

58a

circumstances surrounding the appellant’s state of mind on 23

June 2000, we are convinced that the intent behind the

uncharged acts of misconduct was “sufficiently similar” to the

charged offense to meet the second Reynolds prong.

Nonetheless, the appellant further argues that intent was

not “in issue” and the challenged evidence should not have

been admitted. Her strategy at trial was to develop and

highlight any evidence that suggested Mr. Jackson was the one

who injured Destiny. Although the defense did not concede the

issue of intent or suggest that the members should consider one

of the lesser-included offenses, they clearly focused on their

theory that the evidence could not rule out Mr. Jackson as the

perpetrator.

[14] We find no merit to this argument. A decision

not to contest the issue of intent did not make otherwise proper

evidence of uncharged misconduct relating to intent

inadmissible. United States v. Sweeney, 48 M.J. 117, 120

(C.A.A.F.1998) (clarifying United States v. Franklin, 35 M.J.

311,317(C.M.A.1992)). See also Estelle v. McGuire, 502 U.S.

62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (“the prosecution’s

burden to prove every element of the crime beyond a

reasonable doubt is not relieved by a defendant’s tactical

decision not to contest an essential element of the offense”).

But cf. United States v. Diaz, 59 M.J. 79, 95 (C.A.A.F.2003)

(holding uncharged misconduct was not properly admitted to

rebut an affirmative defense that was not raised); United States

v. Morrison, 52 M.J.117(C.A.A.F.1999) (holding it was error

to admit uncharged misconduct where motive and intent were

clearly not at issue).

[15] Having concluded prong 2 of the Reynolds

analysis is satisfied, we turn to the third prong and conclude it

also has been met. The probative value of the testimony of the

'

59a

three witnesses outweighed its prejudicial impact. We note

that the uncharged acts of misconduct were close in time to the

charged offense and involved the same victim. Additionally,

the conduct is not so shocking as to have a dramatic prejudicial

impact. The military judge did not abuse his discretion in

admitting this evidence.

[16] Before leaving this issue, however, we note that,

generally speaking, Mil. R. Evid. 404(b) is interpreted more

restrictively in military jurisprudence than its counterpart in

other federal courts. In applying this jurisprudence, it is clear

that military decisions are very fact specific, often based upon

the totality of the circumstances, rather than granting the

military judge broad discretion. See, e.g., United States v.

Hays, 62 M.J. 158 (C.A.A.F.2005); United States v.

Bresnahan, 62 M.J. 137 (C.A.A.F.2005); United States v.

Rhodes, 61 M.J. 445 (C.A.A.F.2005); Diaz, 59 M.J. at 79.

Given this lack of predictability, we will continue our analysis

by reviewing for harmless error. We test for harmlessness by

determining:

[W]hether we can say with fair assurance, after pondering

all that happened without stripping the erroneous action from

the whole, that the judgment was not substantially swayed by

the error. As we apply this standard, the defense must initially

meet the threshold burden of showing that an error has

occurred which is of such a character that its natural effect is to

prejudice litigant’s substantial rights. The burden then shifts to

the Government to persuade us that the error was harmless.

Rhodes, 61 M.J. at 453 (internal quotations omitted).

There was little risk the members improperly used this

evidence to conclude the appellant was a bad person and thus

was more likely to have murdered Destiny. Although the court

60a

members asked a lot of questions about abusive behavior, the

judge did not allow most of them, and he repeatedly

admonished them that there was no evidence before them of

other maltreatment or injury to Destiny. The military judge’s

instructions clearly told them that they could not use this

evidence in that manner.

Moreover, as discussed previously, the government’s case

was exceptionally strong. The cause of Destiny’s death and the

date she was injured were not at issue. Intent-the reason this

evidence was admitted-although not conceded, was not

seriously challenged. During argument on findings,

neither*661 side addressed this evidence either specifically or

generically. Thus, the overall effect of this uncharged

misconduct was not that significant.

The primary focus at trial was on who did it-the appellant

or Mr. Jackson. The testimony of Mr. and Mrs. Harris and Mr.

Jackson clearly established that the appellant was in an

uncontrolled rage at the time the injuries would have occurred.

The testimony of SrA Warren, that the appellant seemed in

control of herself when he talked to her in the doorway, does

not seriously discredit that testimony.

Additionally, the appellant admitted that at the time she

departed the apartment, Mr. Jackson was in the bathroom and

Destiny was on the couch, not crying. These admissions

significantly damaged the appellant’s theory of the case-that

Mr. Jackson had sufficient time and motive to inflict the head

injuries on Destiny after her departure. Given the two to

three-minute period between the time the appellant left her

apartment and when the 911 call was placed, it is unlikely Mr.

Jackson would have had time to come out of the bathroom,

observe the appellant depart in her car, shake Destiny, and then

carry her to the Harris’ apartment. Moreover, medical

6la

testimony indicated it was unlikely Destiny would have entered

into a tonic seizure in such a short time frame.

The government’s evidence also clearly established the

appellant’s motive to kill or cause grievous bodily harm to

Destiny. Witnesses detailed her increasing resentment of

Destiny and how her birth had affected her financial and social

situation and her relationship with Mr. Jackson.

The appellant also made several admissions or statements

reflecting consciousness of guilt. She lied to several people

who asked her how the injuries occurred by making clearly

false statements that pointed the blame at Mr. Jackson. She

also told investigators she was not going to stress over the

investigation until they had proof. Additionally, she told

several different stories about where she went after she

departed the apartment, and lied to investigators when she

denied having an argument at the apartment or that she was

angry or frustrated when she left.

Finally, the appellant admitted she may have caused the

injuries to Destiny by throwing her in the air in a playful

manner or possibly when she quickly turned away from the

door after SrA Warren departed. She agreed with investigators

that either she or Mr. Jackson had to have caused Destiny’s

injuries, but ultimately told them she did not believe Mr.

Jackson did it.

Applying the standard enunciated in Rhodes, 61 M.J. at

453, in conjunction with the long-standing four-part analysis

established in Kerr, 51 M.J. at 405, we can say with “fair

assurance” that the judgment was not substantially swayed by

any error in admitting the testimony of the three witnesses.

62a

Providency of Pleas

[17] Next the appellant challenges the providency of

her guilty pleas to three specifications. We address only one:

Whether her discussion with the military judge about a

four-day absence without leave offense (terminated by

apprehension) established a substantial basis for questioning

the appellant’s guilty plea. We conclude that it did.

Several months after Destiny’s death, the appellant was on

authorized leave. On the day she was to return from leave, her

parents took her to a civilian mental health center. She stayed

there for several days. She told the military judge, “I consented

to be admitted, and when I was checked in I told them I was in

the military. | asked them to call and tell my unit where I was.

A couple of hours later, the [Air Force Office of Special

Investigations] came and picked me up.” The military judge

asked her why she wanted hospital officials to notify military

authorities. She told the judge she had seen medical providers

there before and “was just letting them know where | lived at

and that I was in the military.” The judge then asked, “Did you

disclose this to them because of your desire to return to military

control?” She responded, “Yes, sir.” Additionally, she said, “I

told them to call, sir, to let my unit know where I was, but I

didn’t plan on coming back [to the base]. I planned to stay at

the hospital.”

*662 A military judge’s decision to accept a guilty plea is

reviewed for an abuse of discretion. United States v. Eberle,

44 M.J. 374, 375 (C.A.A.F.1996). “Pleas of guilty should not

be set aside on appeal unless there is ‘a “substantial basis” in

law and fact for questioning the guilty plea.” ” /d. at 375

(quoting United States v. Prater, 32 MJ. 433, 436

(C.M.A.1991)).

63a

Article 86, UCMJ, 10 U.S.C. § 886, is “designed to cover

every case not elsewhere provided for in which any member of

the armed forces is through the member’s own fault not at the

place where the member is required to be at the prescribed

time.” Manual for Courts-Martial, United States (MCM), Part

IV, 4 10c(1) (2005 ed.)’ (emphasis added). The record reveals

a “substantial conflict” as to whether the appellant’s mental

health status precluded her ability to report to her place of duty

in a timely fashion. We hold the military judge abused his

discretion in accepting the appellant’s plea to this offense. We

dismiss this specification and next turn to whether we can

reassess the sentence.

We conclude we can reliably determine what sentence the

court members would have imposed if the error had not

occurred. See United States v. Sales, 22 MJ. 305

(C.M.A.1986). After careful consideration of the entire record,

as well as the maximum allowable punishment for a violation

of Article 86, UCMJ, we are confident the court members

would have adjudged a sentence of no less than a dishonorable

discharge, confinement for 24 years and 6 months, forfeiture of

all pay and allowances, and reduction to the grade of E-1.

CONCLUSION

Specification 2 of Additional Charge I is set aside and

dismissed. The amended findings and the reassessed sentence

are correct in law and fact and no error prejudicial to the

substantial rights of the appellant occurred. Article 59(a) and

66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c); United States v.

Reed, 54 M.J. 37, 41 (C.A.A.F.2000). Accordingly, the

findings, as amended, and the sentence, as reassessed, are

This provision is the same in the 2000 edition of the Manual,

which was in effect at the time of trial.

AFFIRMED.

Judge GENT participated in this opinion prior to her

retirement.