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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1500%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2007

## Text

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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

8a

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1500%3A1. Public record. Not legal advice.