Petition for Writ of Certiorari — Washington v. United States (No. 06-654)

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Supreme Court, U.S.

FILED

| D 06-654 NOV 6 - 2006

, No. _ OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

KEITH B. WASHINGTON,

STAFF SERGEANT,

UNITED STATES MARINE CORPS,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition For a Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

PETITION FOR A WRIT OF CERTIORARI

RICHARD H. MCWILLIAMS

Lieutenant, Judge Advocate General’s Corps,

United States Navy

Counsel of Record

Navy-Marine Corps Appellate Review Activity

Appellate Defense Division

1014 N St, S.E., Bldg 200, Suite 200

Washington, D.C. 20374

202/685-7295

QUESTIONS PRESENTED

Whether the failute to properly swear a witness in a criminal

trial is constitutional error for the purposes of applying a

harmless-beyond-a-reasonable-doubt test for prejudice in the

absence: of a timely objection.

Whether the Confrontation Clause and Maryland v. Craig,

497 U.S. 836 (1990) require child witnesses to be made

aware of the penalties of false testimony before testifying.

TABLE OF CONTENTS

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CONSTITUTIONAL PROVISION INVOLVED.............. 2

STATEMENT OF THE CASE .0..-.-sccccsssssssssscscescesseccccecseee 2

REASONS FOR GRANTING THE PETITION. ...........-0-- 7

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TABLE OF AUTHORITIES

United States Constitution

Tce CET I IE cviciciistnidsescmecdactsssncontncecinibasoiabosaced 2

Supreme Court of the United States

Arizona v. Fulminante, 499 U.S. 279 (1__) ...ccccccccssseceeeseees 8

California v. Green, 399 U.S. 149 (1970)................. 7,9, 10

Chapman v. California, 386 U.S. 18 (1967)...............044 8,9

Coy v. fowa, 487 U.S. 1012 (1968) .......cccccssocesessceriesoevsensers 8

Delaware v. Van Arsdall, 475 U.S. 673 (1986) ...............-.- 8

Fahy v. Connecticut, 375 U.S. 85 (1963)......... saikstsaciilaniaoens 8

Harrington v. California, 395 U.S. 250 (1969) .................. 8

Maryland v. Craig, 407 U.S. 836 (1990) ...............002. 7, 8,9

Mattox v. United States, 156 U.S. 237 (1895)...................-- 7

Schneble v. Florida, 405 U.S. 427 (1972).......cccc..:cccseeseeeees 8

United States v. Dunnigan, 507 U.S. 87 (1993)... 10

United States Court of Appeals for the Armed Forces

United States v. Washington, 63 M.J. 418

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Federal Circuit Courts of Appeals

Beausoleil v. United States, 107 F.2d 292 (D.C. Cir.

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Gutierrez v.McGinnis, 389 F.3d 300, 303 (2nd Cir.

MDD ivisinsicsinicirtsabiinsinacsiacsiaativimabiiibniaadianiscieidanetiocdnes 8

United States v. Bueno-Vargas, 383 F.3d 1104 (9th Cir.

SP ivssiccssiesiancieensbapeinincnivibianipetcniouangiidin 10-11

United States v. Turner, 558 F.2d 46 (2nd Cir. 1977)....... 10

United States v. Zizzo, 120 F.3d 1338 (7th Cir. 1997)...... 10

Wilcoxon v. United States, 231 F.2d 384, 387-88 (10th Cir.

State Courts of Last Resort

State v. Tye, 636 N.W.2d 473 (Wis. 2001)..............000 10-11

Navy-Marine Corps Court of Criminal Appeals

United States v. Washington, 61 M.J. 574 (N-M. Ct. Crim.

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Federal Statutes

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Other Authorities

2 Wayne R. LaFave, Search and Seizure (3d ed.

IN THE SUPREME COURT OF THE UNITED STATES

Keith B. Washington, Staff Sergeant, United States Marine

Corps, Petitioner,

United States of America, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

ARMED FORCES

Staff Sergeant Keith B. Washington, United States Marine

Corps, respectfully petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals for the

Armed Forces in this case.

OPINIONS BELOW

The opinion of the Court of Appeals for the Armed Forces

in this case is published at 63 M.J. 418 (C.A.A.F. 2006). App.

A, infra, at la. The second opinion of the Navy-Marine

Corps Court of Criminal Appeals is published at 61 M.J. 574

(N-M. Ct. Crim. App. 2005). App. B, infra, at 18a.

JURISDICTION

The Court of Appeals for the Armed Forces granted

Petitioner’s petition for review under 10 U.S.C. §

867(a)(3)(2000) and~entered judgment in this case on

August 9, 2006. This Court has jurisdiction to review this

case under 28 U.S.C. § 1259(3)(2006).

CONSTITUTIONAL PROVISION INVOLVED

In all criminal prosecutions, the accused shall

enjoy the right . . . to be confronted with the

witnesses against him. ....

U.S. CONST. amend. VI.

STATEMENT OF THE CASE

This case raises two important, recurring questions

regarding the applicability of the Confrontation Clause of the

Sixth Amendment to unsworn testimony, namely: 1) whether

the government bears the burden to prove an error admitting

unswom testimony is harmless beyond a reasonable doubt,

and 2) child witnesses should be compelled to acknowledge

negative consequences for untruthful testimony before being

permitted to testify.

Petitioner was charged with one specification of carnal

knowledge and one specification of committing an indecent

act in violation of Articles 120 and 134, Uniform Code of

Military Justice, 10 U.S.C §§ 920 and 934 (2000). A general

court-martial, composed of members with enlisted

representation, tried Petitioner on March 22; April 17-19, and

June 26-30, 2000. -

The military judge permitted the primary witness against

Petitioner to testify regarding the substance of the allegations

without having first been sworn. Trial counsel’s examination

of ten-year-old Chemise Burden began with five preliminary

questions about the nature of truth and lying:

‘ Q (Tra! Counsel): Do you know what the

truth is?

A (Chemise Burden): Yes.

Q: What is the truth?

A: Telling what really happened.

Q: If I told you — what is a lie? Do you know

what a lie is? Tell me what a lie is?

A: Not telling the truth.

Q: Not telling the truth. So if I told you the

sky was purple right now, what would that be?

A: A lie.

Q: That would be a lie, right?

A: (No,response.)

(Record at 254.) After being admonished by the military

judge for standing too close to the witness, trial counsel then

asked Chemise Burden a series of substantive questions

about the allegations against Petitioner without eliciting a

promise to be truthful or an acknowledgement that untruthful

testimony would yield negative repercussions. (Record at

254-55.)

At the conclusion of the government’s direct examination

of Chemise Burden, trial counsel again went through a litany

of questions pertaining to truthfulness with Chemise Burden:

Q: Why did you say what you said today?

A: Telling the truth.

Q: You swore that everything you said today

was the truth, correct?

A: Yes.

(Record at. 263.) The trial counsel then addressed the court,

stating: “Nothing further, Your Honor. The only thing, sir, if

4 :

you require me to swear her in, I will. I think we have pretty

much covered it, sir. I didn’t officially do it.” (Record at

263.) The trial counsel then concluded his direct

examination of Chemise Burden with the following set of

questions:

Q: Chemise, your testimony today, was it the

truth?

A: Yes.

Q: Was it the whole truth?

A: Yes.

Q: Was it nothing but the truth?

A: Yes.

Q: So help you God?

A: Yes.

(Record at 264.)

The government recalled Miss Burden to testify the

following day. (Record at 399.) Having properly sworn her,

trial-counsel proceeded to again examine Chemise Burden

about her allegations against Petitioner. (Record at 400-402.)

After the direct examination of Miss Burden, the defense’s

cross examination, examination by the military judge and

members, and redirect examination, the military judge

addressed the witness:

Q (Military Judge): Chemise, in case we

didn’t have you formally stand up and raise

your hand and take the oath like you did this

morning...Do you recall that?

A (Chemise Burden): Yes, sir.

Q: The Captain asked you some questions

yesterday to make sure that you understood

—

that it was important for you to tell the truth.

Do you recall that?

A: Yes, sir.

Q: Do you recall the testimony that you gave

yesterday?

A: Yes, sir.

Q: Did you tell both these gentlemen the truth

yesterday?

A: Yes, sir. ~

(Record at 405.)

On the first day of her testimony, which was unsworn,

Chemise Burden testified about several topics that were not

readdressed the following day under oath. Specifically,

Chemise Burden explained that she understood the difference

between male “private parts” and female “private parts.”

(Record at 257.) The witness testified that she was “scared.”

(Record at 258.) She testified that Petitioner ejaculated on

her stomach and cleaned it up with a rag. (Record at 259.)

She testified that Petitioner came in and got under the covers

and that he started to rub on her. (Record at 262.)

Additionally, on redirect, when she still had not been

swom, Chemise Burden testified that none of the adults with

which she discussed the allegations told her to lie, that she

had made consistent statements to other adults prior to trial,

and that she had disclosed these allegations to her mother

without being prompted. (Record at 269-70.) Chemise

Burden also further testified on redirect regarding the ensuing

argument between her parents on June 27, 1998 and the long

ride down to Georgia with her siblings. (Record at 273.)

None of these facts were repeated to the members in her

subsequent sworn testimony.

The members found Petitioner guilty, contrary to his

pleas, of both specifications using exceptions and

substitutions and sentenced him to nine years confinement,

reduction to pay grade E-1, and a bad-conduct discharge.

The convening authority approved the sentence as adjudged

and, except for the bad-conduct discharge, ordered it

executed. > :

The Navy-Marine Corps Court of Criminal Appeals

_(NMCCA) reviewed Petitioner’s case pursuant to Article

66(b)(1), Uniform Code of Military Justice, 10 U.S.C. §

866(b)(1) (2000). On May 18, 2005, NMCCA affirmed the

findings and sentence in a published opinion. Petitioner filed

with the Court of Appeals for the Armed Forces (CAAF) a

petition for grant of review of NMCCA’s decision on August

2, 2005. On January 20, 2006, CAAF granted review of

Petititoner’s case pursuant to Article 67(a)(3), Uniform Code

of Military Justice, 10 U.S.C. § 867(a)(3) (2000) of the

following issue:

Whether the lower court erred when it ruled

that a military judge may administer an oath of

truthful testimony to a child after the

testimony is complete.

CAAF held that “{t]here is no doubt that the failure to

administer the oath before C.B.’s testimony was error, and

that the error was obvious.” Washington, 63 M.J. at 424.

Nonetheless, CAAF found that “Appellant’s claim fails

because he cannot show he was materially prejudiced by the

error.” /d. ,

REASONS FOR GRANTING THE PETITION

Issue I

Whether the failure to properly swear a

witness in a criminal trial is constitutional

error for the purposes of applying a harmless-

beyond-a-reasonable-doubt test for prejudice

in the absence of a timely objection.

Whether the proper administration of the oath implicates

the Confrontation Clause of the Sixth Amendment and

should be reviewed for harmlessness beyond a reasonable

doubt is a frequently recurring question and, in light of the

decisions of this Court, is routinely answered incorrectly by

the circuit courts.

Proper administration of the oath is a vital component of

the right to confrontation. In Maryland v. Craig, this Court

confirmed that testimony under oath implicated the

Confrontation Clause of the Sixth Amendment:

...{T Jhe right guaranteed by the Confrontation

Clause includes not only a “personal

examination” but also [among other things]

“insures that the witness will give his

statements under oath — thus impressing with

him the seriousness of the matter and guarding

against the lie by the possibility of a penalty

for perjury....”

497 US. 836, 845-46 (1990)(quoting Mattox v. United

States, 156 U.S. 237, 242 (1895) and California v. Green,

399 U.S. 149, 158 (1970).). Although the Craig Court later

found that Maryland’s use of remote closed-circuit child

testimony did not violate the Confrontation Clause, the Court

relied heavily upon the system’s preservation of various other

facets of “the confrontation right,” including the requirements

that “(t]he child witness must be competent to testify and

must testify under oath.” Craig, 497 U.S. at 851. .

This Court has also held that violation of the

Confrontation Clause should be reyiewed by appellate courts

using a harmless-error-beyond-a-reasonable-doubt test. See

Chapman v. California, 386 U.S. 18, 24, 26 (1967); See

also: Harrington v. California, 395 U.S. 250 (1969);

Schneble v. Florida, 405 U.S. 427 (1972); Coy v. Iowa, 487

U.S. 1012, 1021-22 (1988); Delaware v. Van Arsdall, 475

U.S. 673 (1986); Arizona v. Fulminante, 499 U.S. 279, 295

(1991.)

With constitutional errors, such as violations of an

accused’s right to confrontation, the burden duvs not belong

to the petitioner. Errors “admitting plainly relevant evidence

which possibly influenced the jury adversely to a litigant

cannot...be conceived of as harmless.” Chapman, 368 U.S.

at 23-24 (citing Fahy v. Connecticut, 375 U.S. 85 (1963)).

The test for evidence admitted in violation of the

Confrontation Clause is whether there is a reasonable

probability that the evidence complained of might have

contributed to the conviction. Fahy, 375 U.S. at 86-87. “The

burden of proving the error’s harmlessness falls ‘to someone

other than the person prejudiced by it.’” Gutierrez v.

McGinnis, 389 F.3d 300, 303 (2nd Cir. 2004)(quoting

Chapman, 386 U.S. at 24.)

In the present case, CAAF, having conceded that the trial

court’s failure to properly administer the oath was error,

applied the wrong test for prejudice. Instead of testing for

harmlessness beyond a reasonable doubt, CAAF placed the

burden upon Petitioner to show that the error materially

prejudiced his substantial rights. See Washington, 63 M.J. at

424-25.

Despite this Court’s holdings that Confrontation Clause

violations ought to be reviewed for harmlessness beyond a

reasonable doubt, other federal circuit courts, like CAAFP,

continue to improperly place the burden of showing prejudice

upon the accused and do not review this violation of the

Confrontation Clause for harmlessness beyond a reasonable

doubt. See United States v. Odom, 736 F.2d 104, 115-116

(4th Cir. 1984). See also: Wilcoxon v. United States, 231

F.2d 384, 387-88 (10th Cir. 1956) and Beausoleil v. United

States, 107 F.2d 292, 294 (D.C. Cir. 1939.)

CAAF failed to reconcile its decision in Petitioner’s case

with this Court’s decisions in Chapman, Green, or Craig.

The other circuits’ decisions seem similarly inconsonant with

this Court’s Confrontation Clause jurisprudence.

Issue II

Whether the Confrontation Clause and

Maryland v. Craig, 497 U.S. 836 (1990)

require child witnesses to be made aware of

the penalties of false testimony before

testifying.

The Court should grant review of this issue as CAAF’s

decision in Petitioner’s case has created a split in the circuits.

Specifically, CAAF held that, “in the case of

children,...oaths and affirmations may be specifically tailored

to impress on the particular child the importance of telling

the truth. This can be accomplished, as it has been

accomplished for many years, without imparting to the child

the perils of perjury.” Washington, 63 M.J. at 425. CAAF’s

declaration that children may be swom without first

demonstrating a concomitant duty to tell the truth under some

threat of penalty is contrary to this Court’s Confrontation

Clause jurisprudence and the decisions of the other circuits

regarding the essential compone: :s of an oath.

By compelling truthful testimony, the oath impacts the

reliability of the trial’s outcome. In United States v.

Dunnigan, 507 U.S. 87 (1993), this Court, in upholding the

constitutionality of a sentence enhancement provision for

perjury, highlighted the importance of swom testimony,

delivered under oath and threat of punishment. Specifically,

the Dunnigan Court held, “The requirement of swom

testimony, backed by punishment for perjury, is as much a

protection for the accused as it is a threat. All testimony,

from third-party witnesses and the accused, has greater value

because of the witness’ oath and the obligations or penalties

attendant to it.” Dunnigan, 507 U.S. at 97.

This Court has placed a great deal of emphasis upon the

importance of oaths and has provided the rationale for

administering oaths to witnesses before testifying: 1) to

impress upon witnesses the solemnity of the proceeding in

order to ensure truthful testimony and 2) to alert the witness

that any testimony provided must be truthful under the threat

of prosecution for perjury. Green, 399 U.S. at 158.

Other circuits have affirmed this second component

requiring the imposition of some duty to tell the truth. See

United States v. Zizzo, 120 F.3d 1338 (7th Cir. 1997)(“The

idea behind [the oath requirement] is to preserve the integrity

of the judicial process by awakening the witness’ conscience

and making the witness amenable to perjury prosecution if he

fibs.”); See also United States v. Bueno-Vargas, 383 F.3d

1104, 1110-1111 (9th Cir. 2004)(quoting United States v.

Turner, 558 F.2d 46, 50 (2nd Cir. 1977) and State v. Tye, 636

N.W.2d 473, 478 (Wis. 2001).) In Bueno-Vargas, the

Second Circuit held that the “‘true test’ for whether a

declaration is made under oath or affirmation ‘is whether the

procedures followed were such that perjury could be charged

therein if any material allegation contained therein is false.””

Bueno-Vargas, 383 F.3d at 1111 (quoting 2 Wayne R.

LaFave, Search and Seizure, § 4.3(e), at 474-75 (3d ed.

1996).) The Tenth Circuit declared in Wilcoxon that “[t}he

two-fold purpose of the oath is to bind the conscience of the

witness and make him amenable to prosecution if he gives

perjured testimony.” 231 F.2d, at 387.

CAAF, however, has discarded the second component of

this test. with regard to child witnesses, requiring no

imposition of a sense of obligation upon the witness before

testifying. CAAF’s abandonment of the “duty” requirement

contradicts this Court’s jurisprudence that confrontation

requires the proper administration of the oath, even to

children, and that proper administration of the oath requires

an imposition of a sense of obligation or “duty” to tell the

truth under the threat of punishment. This abandonment has

split the CAAF from the other circuits and from this Court.

This Honorable Court should settle this question.

CONCLUSION

Failure to properly administer the oath implicates the

Confrontation Clause of the Sixth Amendment. Accordingly,

appellate courts should consider the failure to properly swear

a witness an error of constitutional magnitude, where the

government carries the burden of proving harmlessness

beyond a reasonable doubt. Further, this Court should.

recognize and confirm the practical effect the oath plays in

the garnering truthful testimony and, ensure that, with regard

to child witnesses, all of the necessary components of the

oath are present, particularly an acknowledgement that

untruthful testimony carries with it negative repercussions.

For these two reasons, Petitioner’s petition for a writ of

certiorari should be granted.

Respectfully submitted,

RICHARD H. MCWILLIAMS

Lieutenant, Judge Advocate General’s

Corps, Unites States Navy

Counsel of Record

Navy-Marine Corps Appellate

Review Activity

1014 N St. S.E., Bldg 200, Suite 200

Washington, D.C. 20374

202/685-7295

APPENDIX A

UNITED STATES, Appellee v.

Keith B. WASHINGTON, Staff

Sergeant U. S. Marine Corps,

Appellant

No. 05-0650 Z

UNITED STATES COURT OF

APPEALS FOR THE ARMED

FORCES

63 M.J. 418; 2006 CAAF

LEXIS 1060

April 19, 2006, Argued

August 9, 2006, Decided

PRIOR HISTORY: [**1] Crim. App. No. 200101011.

Military Judge: A. W. Keller. United States v. Washington,

61 M.J. 574, 2005 CCA LEXIS 162 (N-M.C.C.A., 2005)

DISPOSITION: The decision of the United States Navy-

Marine Corps Court of Criminal Appeals is affirmed.

COUNSEL: For Appellant: Lieutenant Richard H.

McWilliams , JAGC, USNR (argued); Captain James

Valentine, USMC, and Lieutenant Commander Jason S.

Grover, JAGC, USN (on brief).

For Appellee: Lieutenant Mark H. Herrington, JAGC, USNR

(argued); Commander Charles N. Purnell, JAGC, USN (on

brief); Lieutenant Kathleen A. Helmann, JAGC, USNR.

JUDGES: BAKER, J., delivered the opinion of the Court, in

which GIERKE, C.J., and CRAWFORD, EFFRON, and

ERDMANN, JJ., joined.

OPINION BY: BAKER

OPINION:

[*419] Judge BAKER delivered the opinion of the

Court.

_ Appellant was a Marine Corps staff sergeant stationed at

the Marine Corps Air Station in Cherry Point, North

Carolina. Contrary to his pleas, after a contested general

court-martial before members, he was convicted of carnal

knowledge and indecent acts with a child, in violation of

“Articles 120 and 134, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § § 920, 934 (2000). He was sentenced

to a bad-conduct [**2] discharge, confinement for nine years

and reduction to pay grade E-1. The convening authority

approved the adjudged sentence. The United States Navy-

Marine Corps Court of Criminal Appeals affirmed. United

States v. Washington, 61 M.J. 574, 578 (N-M. Ct. Crim. App.

2005). Upon Appellant's petition, we granted review of the

following two issues:

I. WHETHER LEGALLY SUFFICIENT

EVIDENCE WAS PRESENTED TO PROVE

THE OFFENSE OF CARNAL KNOWLEDGE.

Il. WHETHER THE LOWER COURT ERRED

WHEN IT RULED THAT A MILITARY

JUDGE MAY ADMINISTER AN OATH OF

TRUTHFUL TESTIMONY TO A CHILD

AFTER THE TESTIMONY IS COMPLETE.

On Issue I, viewing the evidence in the light most favorable

to the prosecution, we conclude that the evidence was legally

sufficient. On Issue II, we conclude that in the context of this

case, Appellant was not materially [*420] prejudiced by the

failure to administer the oath in light of the corrective action ,

taken. As a result, we affirm the decision of the United States

Navy-Marine Corps Court of Criminal Appeals.

BACKGROUND

At the time of the alleged offenses, Appellant and his

wife, Krystal, lived in on-base housing along with their

triplets, age five, [**3] and their daughter, C.B., age eight.

At Appellant's court-martial, Krystal testified that around

9:30 a.m. on June 27, 1998, she left the house to buy

breakfast for the family at Hardee's. She returned home a

little before 10:00 a.m., and soon afterwards, made

arrangements to drive her mother to Georgia. Krystal

intended to drive and spend the night in Georgia with her

mother and a friend, leave the children with Appellant, and

return home the following day. She discussed child care

arrangements with Appellant, and told C.B. to take a bath.

When Krystal and her mother left the house at about 10:30

a.m., Appellant was in bed wearing basketball shorts.

Krystal testified that not long after leaving the house, she

realized she forgot to pack a particular dress. She returned

home and tried to open the screen door. The screen door was

generally left unlocked, but upon her return, she found it

locked. She tapped on the window of the triplets’ room, and

all three came to the door and opened it. Krystal asked where

C.B. was, and the children told her she was "in the room with

daddy." Krystal walked into her bedroom to get the dress and

saw Appellant and C.B. in bed together.

Krystal testified [**4] that she became angry because

she believed C.B. had ignored her demand to take a bath. She

asked C.B., "[d]idn't I tell you to take a bath?" When C.B.

tried to get out of bed, Appellant grabbed her and said,

"[leave the girl alone. She's just laying here." Krystal and

Appellant began to argue, and when Appellant continued to

not let C.B. out of bed, Krystal pulled hard on the bed covers.

Before Appellant could pull the covers back up, Krystal saw

that he and C.B. were "spooned into each other." C.B.'s

underwear and shorts were at the foot of the bed, and

Appellant was totally naked. Krystal testified that Appellant

had a partial erection in that "about-to-lose-it stage." She

attempted to call the police, but Appellant disconnected the

phone and tried to restrain her, telling her she was not going

to "leave the house thinking that's what [she had seen]."

Krystal hurriedly ordered all four children, still in their night

clothes and without shoes, into her car and drove them six to

eight hours to Georgia.

DISCUSSION

A. Sufficiency of the Evidence

Appellant first challenges his conviction on the ground

that there was insufficient evidence to prove he committed

carnal knowledge [**5] on June 27, 1998. He argues the

offense of carnal knowledge requires proof of sexual

penetration, and the Government failed to introduce legally

sufficient evidence showing he engaged in an act of sexual

intercourse with C.B.

An Article 120(b), UCMJ, violation for carnal knowledge

requires: (1) that the accused commit an act of sexual

intercourse; (2) with a person who is not the accused's

spouse; and (3) who is under sixteen years old. “Penetration,

however slight, is sufficient to complete" the offense. Article

120(c), UCM.

When determining whether the evidence was legally

sufficient to show an act of sexual intercourse on June 27, we

"'view[] the evidence in the light most favorable to the

prosecution” and decide whether "any rational trier of fact

could have found the essential elements of the crime beyond

a reasonable doubt." United States v. Brown, 55 M.J. 375,

385 (C.A.A.F. 2001) (quoting Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)), United

States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987).

At the court-martial, the specification for carnal

knowledge alleged that Appellant, did “on divers occasions, —

between on or [**6] about 15 April 1998 and 27 June 1998,

commit the offense of carnal knowledge with [C.B.], a

[*421] child under the age of 12.” In light of Krystal’s

testimony about discovering her husband naked in bed with

C.B. on June 27, the Government's case focused on the

events of that day. The members found Appellant guilty of

carnal knowledge on June 27, but they did not find he

committed the offense on prior divers occasions. Appellant's

central argument is that although C.B. testified about acts of

vaginal penetration prior to June 27, the members found him

not guilty of those acts, and therefore those same acts could

not be considered by either the members or the Navy-Marine

Corps Court of Criminal Appeals when determining whether

he committed carnal knowledge on June 27. He argues that

without the prior acts evidence, there is insufficient evidence

showing vaginal penetration occurred on June 27.

For the reasons stated below, we disagree. First, the

Government offered some evidence showing vaginal

penetration occurred on June 27. Second, in light of the

different standards necessary to convict, as opposed to admit,

other acts evidence, the members and the lower court might

appropriately consider (**7] evidence of those prior divers

acts for which Appellant was found not guilty.

Evidence Referring to Events on June 27

On the first day of her testimony, C.B. nodded

affirmatively when the Government asked whether Appellant

had "touched [her] private parts with his private part more

than once." She testified, without reference to any specific

day, that Appellant put his private part "inside [her] private

part," and that "white stuff" came out of his private part on

her belly. She also testified about the specific events on June

27, and stated that after her mother left for Georgia, she sat

on her parents’ bed to watch television. After Appellant came

in, he took off their shorts, they got under the covers and "he

started rubbing on {her].”

The following day, the Government recalled C.B. She

reiterated her earlier testimony and also stated that the

penetration did not hurt because it was partial. Trial counsel

elicited the following testimony:

Q. But he did put his private part in your private

part, right?

A. Yes.

Q. Why didn't it hurt?

A. I don't know.

Q. You don't know? Did it go all the way inside

you?

A. No.

Q. Did it go inside [**8] you though?

A. Yes.

Q. Do you remember we talked about the one

incident that your mother walked in on you,

right?

A. Yes.

Q. Did your daddy touch you times before that,

night?

A. Yes.

Q. Did he alse put his private part inside your

private part before that?

A. Yes.

Emphasis added. It is clear from this exchange that trial

counsel asked C.B. questions pertaining specifically to

vaginal penetration. Immediately on the heel of those

questions, trial counsel asked whether Appellant "also put his

private part inside [her] private part before" June 27.

(emphasis added). For sure, this testimony is subject to more

than one interpretation; however, viewing the testimony in

the light most favorable to the Government, a reasonable trier

of fact could infer that the word "also" was inclusive, and

meant that acts of penetration occurred not only before June

27, but also on June 27.

Evidence of Prior Acts

Appellant also argues that because the members found

him not guilty of carnal knowledge on divers occasions

before June 27, the Court of Criminal Appeals erred in

relying on evidence regarding those divers acts [**9) in

upholding the factual and legal sufficiency [*422) of the

charge to carnal knowledge on June 27. n1

nl In addressing legal and factual sufficiency, the

Criminal Court of Appeals opinion states inter alia:

A careful reading of the record of trial

discloses that sufficient evidence of each

and every element of both offenses was

presented to the members through

testimony and other evidence adduced at

trial. C.B. testified that the appellant had

touched her "private parts" on more than

one occasion prior to, or on the moming

of, the alleged incident. Washington, 61

M.J. at 577.

Appellant's argument that those other acts cannot be

considered fails for two related reasons. First, the

admissibility of other acts evidence is governed by the

Military Rules of Evidence (M.R.E.), and not by the

members' verdict. Second, Appellant is arguing, in essence,

that a finding of not guilty amounts to a finding of fact -- in

this case a finding that C.B.'s other acts testimony was false.

However, a [**10] finding of not guilty is not a finding of

fact, but a determination that the government has not proved

all the elements of the charged offense beyond a reasonable

doubt. United States v. Watts, 519 U.S. 148, 155, 117 S. Ct.

633, 136 L. Ed. 2d 554 (1997), see also Dowling v. United

States, 493 U.S. 342, 348, 110 S. Ct. 668, 107 L. Ed. 2d 708

(1990).

Moreover, with respect to other acts evidence involving

child molestation and sexual assault, M.R.E. 413 and M.R.E.

414 are "intended to provide for more liberal admissibility of

character evidence in criminal cases." Manual for Courts-

Martial, United States, Analysis of the Military Rules of

Evidence app. 22 at A22-36 to A22-37 (2005 ed.)

{hereinafter Drafters’ Analysis]. Specifically, M.R.E. 414(a)

provides that "[iJn a court-martial in which the accused is

charged with an offense of child molestation, evidence of the

accused's commission of one or more offenses of child

molestation is admissible and may be considered for its

bearing on any matter to which it is relevant."

Before a court may submit evidence of prior charged or

uncharged acts to a jury, it must examine "the evidence in the

case and decidef{] whether the jury could reasonably find the

conditional [**11] fact... by a preponderance of the

evidence.” United States v. Huddleston, 485 U.S. 681, 690,

108 S. Ct. 1496, 99 L. Ed. 2d 771 (1988), Dowling, 493 U.S.

at 348-50. This Court in United States v. Reynolds, 29 M.J.

105, 109 (C.M.A. 1989), while not citing Huddleston, set

forth a "three-prong test [] consistent with Huddleston” to

gover the admissibility of other acts evidence. United States

10a

v. McDonald, 59 M.J. 426, 429 (C.A.A.F. 2004). Although

Reynolds dealt with evidence of uncharged misconduct, its

three-prong test can apply to evidence of charged

misconduct. n2 The test contains the following elements:

1. Does the evidence reasonably support a

finding by the court members that the appellant

committed prior crimes, wrongs or acts?

2. What "fact . .. of consequence” is made

"more" or "less probable" by the existence of

this evidence?

3. Is the "probative value . . . substantially

outweighed by the danger of unfair prejudice"?

Reynolds, 29 M.J. at 109 (citations omitted).

N2 In Huddleston, 485 U.S. at 689, the Supreme

Court concluded that evidence of uncharged acts is

admissible if the jury can reasonably conclude that the

other acts occurred and that the defendant was the

actor. The Supreme Court has applied the Huddleston

analysis to evidence of prior charged acts. See

Dowling, 493 U.S. at 348-50; Watts, 519 U.S. at 156

(quoting Dowling, 493 U.S. at 349). Because Reynolds

is consistent with Huddleston, the Reynolds test also

applies to prior charged acts.

[**12]

lla

Applying the first prong of the Reynolds analysis to the

facts of this case, we conclude that a jury could reasonably

find that the prior acts occurred. C.B. testified consistently

for over two days that her father had on multiple occasions

before June 27 “put his private part inside [her] private part."

What distinguishes these other acts from the acts committed

on June 27 is the quantum of evidence offered to prove them,

not the reliability of C.B.'s testimony. The focus of the

Government's case was on the acts occurring on June 27, not

the other acts, for it was on June 27 that C.B.’s mother

discovered Appellant [*423] in bed with C.B. and her

testimony could support C.B.'s.

As for the second Reynolds prong, evidence is relevant

under M.R.E. 401 when it has "any tendency to make the

existence of any fact that is of consequence to the

determination of the action more probable or less probable

than it would be without the evidence." M.R.E. 401; United

States v. Berry, 61 M.J. 91, 95 (C_A.A.F. 2005). In this case,

evidence that Appellant may have engaged in the near

identical acts with his daughter in the months prior to June 27

is relevant to the determination [**13] of whether Appellant

engaged in similar conduct on June 27.

Applying the M.R.E. 403 balancing test for the third

Reynolds prong, the probative value of this evidence was not

substantially outweighed by the danger of unfair prejudice. It

was integral to the charged conduct, integral to C.B.'s

testimony regarding the events of June 27, and consistent in

detail and tenor with the evidence regarding June 27.

Because the members could reasonably find by a

preponderance of the evidence that the other prior acts

occurred, and the other acts evidence is logically and legally

relevant, the members and lower court could properly

12a

consider evidence of carnal knowledge committed before

June 27.

Viewing the evidence in the light most favorable to the

prosecution, including C.B.'s testimony, the evidence that

Appellant was found naked in bed "spooning" C.B. with a

partial erection, and the evidence of carnal knowledge

committed before June 27, we conclude that a rational trier of

fact could have found beyond a reasonable doubt that carnal

knowledge occurred on June 27. -

B. Administration of the Oath After Testimony

We now turn to Appellant's second claim that his

conviction and sentence [**14] should be set aside because

the witness oath was administered to C.B. after her first day

of testimony was complete.

The first day C.B. was called to testify, trial counsel

asked her a series of questions about whether she knew the

meaning of telling the truth, and the difference between

telling the truth and telling a lie. The following exchange

took place: ;

Q. Do you know what the truth is?

A. Yes

Q. What is the truth?

A. Telling what really happened.

Q. If I told you -- what is a lie? Do you know

what a lie is? Tell me what a lie is?

A. Not telling the truth.

13a

Q. Not telling the truth. So if I told you the sky

was purple right now, what would that be?

A. A lie.

Q. That would be a lie, right?

At this point, the military judge interrupted the exchange to

ask trial counsel to stand a little further from C.B. so that she

would speak in a louder voice. After the interruption, trial

counsel commenced with C.B.'s direct examination without

administering the witness oath. At the end of the direct

examination, consisting of nine pages in the record, trial

counsel asked C.B. the following:

Q. Why did you say what you said [**15}

today?

A. Telling the truth.

Q. You swore that everything you said today

was the truth, correct?

Sai eee

A. Yes.

At this point, trial counsel told the military judge there

a —_—__——

was nothing further, but also stated that "[t]he only thing, sir,

if you require me to swear her in, I will. I think we have

pretty much covered it, sir. I didn't officially do it." Trial

counsel then engaged in the following exchange with C.B.:

l4a

Q. (C.B.], your testimony today, was it the truth?

A. Yes.

Q. Was it the whole truth?

A. Yes.

A. Was it nothing but the truth?

Q. Yes.

A. So help you God?

Q. Yes.

[*424] The following day C.B. was recalled to testify.

~ On redirect, trial counsel asked whether C.B. remembered

that it was important to tell the truth. C.B. stated that she

remembered and testified that she had told the truth the

previous day. Defense counsel did not object to the failure to

formally swear in C.B. at the beginning of her first day of

testimony, at the close of her testimony, or at the outset of

her testimony on the second day of trial. i

M.R.E. 603 provides: “Before testifying, every witness

shall be required to declare that the witness [**16] will

testify truthfully, by oath or affirmation administered in a

form calculated to awaken the witness's conscience and

impress the witness's mind with the duty to do so." M.R.E. |

603 "requires that a witness swear or affirm that he will tell

the truth,” but it "establishes no specific colloquy to be used

in Carrying Sut this requirement. Any process that is

sufficient to ‘awaken the witness's conscience .. .' is

satisfactory.” United States v. Allen, 13 M.J. 597, 599

15a

(A.F.C.M.R. 1982) (quoting Stephen A. Saltzburg, Lee D.

Schinasi & David A. Schlueter, Military Rules of Evidence

Manual 276 (1981)). As stated in the Drafters’ Analysis,

M.R.E. 603 is taken without change from the Fed. R. Evid.

603. Drafters’ Analysis app. 22 at A22-45. The Notes of

Advisory Committee on Rules for Fed. R. Evid. 603, states

that "[t}he rule is designed to afford the flexibility required in

dealing with . . . children" and that "[a]ffirmation is simply a

solemn undertaking to tell the truth ... ." As with the Fed. R.

Evid. 603, M.R.E. 603 requires no special verbal formula,

{**17] but instead requires that the oath be meaningful to the

witness, including a child witness, and impress upon the

witness the duty to tell the truth. See Allen, 13 M.J. at 599-

601; see Spigarolo v. Meachum, 934 F.2d 19, 24 (2d Cir.

1991) ("When children testify, the trial court may fashion an

oath or affirmation that is meaningful to the witness.”).

Because Appellant did not object to the failure of trial

counsel to place C.B. under oath, Appellant waived the issue

absent plain error. n3 United States v. Odom, 736 F.2d 104,

112 (4th Cir. 1984); United States v. Pluta, 176 F.3d 43, 51

(2d Cir. 1999); see United States v. Powell, 49 M.J. 460, 465

(C.A.A.F. 1998) (in absence of objection, plain error analysis

applies). In this context, the rationale for applying waiver is

twofold: "First, the defect or failure could have been

corrected if a timely objection had been made; second, in the

absence of a waiver rule counsel might deliberately avoid

objecting to a witness being unsworn in order to have a

ground of appeal." Odom, 736 F.2d at 115. Under our plain

error analysis, Appellant must [**18] show that there was

error, the error was plain or obvious, and that the error

materially prejudiced his substantial rights. Powell, 49 M_J.

at 463-65.

l6a

n3 We agree with the conclusion of the Court of

Criminal Appeals that whether Appellant's absence of

objection is considered waiver or forfeiture, the

appropriate standard of review is one of plain error.

’ Washington, 61 M.J. at 576 n.1. Therefore, we need

not and do not address the distinction between

forfeiture and waiver in this case.

There is no doubt that the failure to administer the oath

before C.B.'s testimony was error, and that the error was

obvious. The plain text of M.R.E. 603 required C.B., by oath

or affirmation, to declare that she would testify truthfully

"before testifying.” The initial colloquy between C.B. and

trial counsel fell short of this requirement.. However,

Appellant's claim fails because he cannot show he was

materially prejudiced by the error.

Trial counsel asked if C.B. knew the difference between

{**19] the truth and a lie, and C.B. indicated that she

understood. At the end of her testimony, C.B. stated that she

had told the "whole truth” and "nothing but the truth.” She

then swore that everything she said had been the truth. When

C.B. was recalled, she also stated that she only told the truth

the previous day. Although the colloquy between trial

counsel and C.B. was not a formal oath or affirmation, C.B.

demonstrated she understood her duty to tell the truth. In

short, consistent with the purpose of M.R.E. 603, but not its

temporal requirement, the record of trial reveals that C.B.

was alert to the necessity of telling the truth [*425] both at

the beginning of her testimony and at the outset of the second

day of her testimony.

Appellant counters that while C.B. may have been aware

of her obligation to tell the truth, she was not aware of the

consequences of failing to do so, a requirement Appellant

17a

derives from the language of M.R.E. 603 regarding “duty”

and the general knowledge possessed by most adults that

those who lie on the witness stand may be subject to perjury. -

In addressing this argument, we need not reach beyond the

confines of this case. The law is clear, both in the text [**20]

of M.R.E. 603 and its analysis, and in federal circuit case

law. A particular formula is not required in administering an

oath or affirmation, although adherence to the benchbook

formula will minimize dispute. This is particularly true in the

case of children, where oaths and affirmations may be

specially tailored to impress on the particular child the

importance of telling the truth. This can be accomplished, as

it has been accomplished for many years, without imparting ~

to the child the perils of perjury.

For these reasons, Appellant has not shown that the error

prejudiced his substantial rights.

DECISION

The decision of the United States Navy-Marine Corps

Court of Criminal Appeals is affirmed.

18a

APPENDIX B

UNITED STATES v. Keith B.

WASHINGTON, Staff Sergeant

(E-6), U.S. Marine Corps

NMCCA 200101011

UNITED STATES NAVY-

MARINE CORPS COURT OF

CRIMINAL APPEALS

61 M.J. 574; 2005 CCA LEXIS

162

May 18, 2005, Decided

SUBSEQUENT HISTORY: Later proceeding at United

States v. Washington, 62 M.J. 211, 2005 CAAF LEXIS 994

(C.AA.F., 2005) |

Review granted by United States v. Washington, 02 M.J. 451,

2006 CAAF LEXIS 120 (C.A.A.F., 2006)

Affirmed by United States v. Washington, 2006 CAAF LEXIS

1060 (C.A.A.F., Aug.-9, 2006)

PRIOR HISTORY: [**1] Sentence adjudged 30 June

2000. Military Judge: A.W. Keller, Jr. Review pursuant to -

Article 66(c), UCMJ, of General Court-Martial convened by

Commanding General, 2d Marine Aircraft Wing, U.S.

MarForLant, Cherry Point, NC.

19a

COUNSEL: Capt JAMES VALENTINE, USMC, Appellate

Defense Counsel.

LT KATHLEEN HELMANN, JAGC, USNR, Appellate

Government Counsel. :

JUDGES: BEFORE C.L. CARVER, D.A. WAGNER, R.W.

REDCLIFF. Senior Judge CARVER and Judge REDCLIFF

concur.

OPINION BY: WAGNER

OPINION: [*575] WAGNER, Judge:

A general court-martial composed of officer and enlisted

members convicted the appellant, contrary to his pleas, of

carmal knowledge and indecent acts with a child, in violation

of Articles 120 and 134, Uniform Code of Military Justice,

10 U.S.C. § § 920 and 934. The appellant was sentenced to a

bad-conduct discharge, confinement for 9 years, and

reduction to pay grade E-1. There was no pretrial agreement.

The convening authority approved the sentence as adjudged.

The appellant contends that the findings must be set aside

because a key Government witness was not administered an

oath or its equivalent prior to testifying, that the evidence

adduced at trial was legally and factually insufficient [**2]

to sustain his conviction for both offenses, and that the

sentence is inappropriately severe for the offenses of which

he stands convicted. The appellant also asserts that the

Government failed to exercise due diligence when it waited

two years to bring the appellant to trial, that the tria] defense

counsel's failure to submit matters in clemency to the

convening authority amounted to ineffective assistance of

counsel, and that the military judge erred by not

consolidating the offenses for findings purposes at trial.

20a

After carefully considering the record of trial, the

appellant's assignments of error, the Government's response,

and the appellant's reply, we conclude that the findings and

sentence are correct in law and fact and that no error

materially prejudicial to the substantial rights of the appellant

was committed. Arts. 59(a) and 66(c), UCMJ.

Failure to Administer Oath

The appellant contends that this court should dismiss the

findings of guilty because the victim, "C," the appellant's 10-

year-old daughter, was not placed under oath before her

initial testimony at trial. We disagree and decline to grant

relief.

C was called to the stand and answered several questions

[**3] regarding truth and falsity, but, after being interrupted

by the military judge, the trial counsel never completed the

inquiry. Following C's testimony on direct examination, the

trial counsel asked C if her testimony was the truth and then

swore her to that testimony. The defense counsel, who raised

no objection to the form of the oath or the procedure of the

direct testimony, conducted an extensive cross-examination.

The following day, C was recalled by the trial counsel, was

once again properly sworn, and testified in amplification of

her prior testimony.

MILITARY RULE OF EVIDENCE 603, MANUAL

FOR COURTS-MARTIAL, UNITED STATES (2000 ed.),

requires that, before testifying, a witness "shall be required to

declare that the witness will testify truthfully, by oath or

affirmation administered in a form calculated to awaken the

witness's conscience and impress the witness's mind with the

duty to do so." The rule was written in this fashion "to permit

atheists, conscientious objectors, children, and individuals

with emotional difficulties to satisfy the basic criterion."

21a

STEPHEN A. SALTZBURG, ET AL., MILITARY RULES

OF EVIDENCE MANUAL, § 603.02 (Sth ed. 2003).

The language of MIL. R. [**4] EVID. 603 recognizes

the trend in federal civilian courts and military courts toward

allowing all witnesses to testify and allowing the members to

receive all arguably reliable evidence and decide for

themselves what weight each piece of evidence is to be

given. United States v. Morgan, 31 M.J. 43, 47 (1990

C.M.A.)(citing SALTZBURG, MILITARY RULES OF

EVIDENCE MANUAL 492 (2nd ed. 1986)); see also United

States v. Lightly, 677 F.2d 1027, 1028 (4th Cir. 1982).

Assuming without deciding that, under the circumstances

of this case, the aborted truth or falsity inquiry with C prior

to taking her direct testimony was insufficient to satisfy MIL.

R. EVID. 603, we conclude that the appellant forfeited the

issue on appeal by his [*576] failure to raise the issue at

trial. nl

nl We purposely apply the doctrine of forfeiture in

this case as opposed to the doctrine of waiver, although

the result under either would be the same. It could be

argued that the appellant affirmatively waived the issue

by his silence at trial when both the trial counsel and

the military judge addressed the issue with C in the

presence of the appellant and his trial defense counsel.

The trial judge stopped short of obtaining an express

waiver from the appellant on the record, however, and

the doctrine of forfeiture appears to us to be more

applicable in this case.

[**3)]

22a

The military courts have had the opportunity to address

the sufficiency of the oath administered to child witnesses,

but have not directly addressed the issue of not having the

oath administered at all prior to testimony. See Morgan, 31

M.J. 43; United States v. Allen, 13 M.J. 597 (A.F.C.M.R.

1982).

Federal courts, however, have addressed the issue

directly and repeatedly, applying the doctrine of waiver n2

when no objection is made at trial.

It is well settled that the swearing of a

witness is waived by failure to raise the point

during the witness’ testimony, thus denying the ~

trial court an opportunity to correct what has

been characterized as an "irregularity." The

rationale of this principle was declared a century

and a half ago in the oft-cited case of Cady v.

Norton, 31 Mass. 236, 14:Pick. 236, 237 (Mass.

1833). Fhe Court in that case stated two

justifications for the rule: First, the defect or

failure could have been corrected if a timely

objection had been made; second, in the absence

of a waiver rule counsel might deliberately avoid

objecting to a witness being unsworn in order to

have a ground of appeal.

United States v. Odom, 736 F.2d 104, 114-15 (4th Cir.

1984). [**6] (footnote omitted) The Odom court cites

Wilcoxon v. United States, 231 F.2d 384, 386-387 (10th Cir. .

1956) as the “leading federal case" applying the waiver

principle laid down in Cady.

23a

n2 Federal cases in this area use the term waiver to

include both affirmative waiver of the issue at trial and

forfeiture of the issue by failure to raise the issue at

trial. For a concise discussion of the difference

between the doctrines, see United States v. Olano, 507

U.S. 725, 733, 123 L. Ed. 2d 508, 113 §. Ct. 1770

(1993).

~ The facts in Wilcoxon bear out a similar application of the

waiver doctrine in the case before us. In that case, witnesses

who spoke no English were given the oath en masse with

other witnesses, in English, prior to their testimony. No

objection was lodged at trial. After trial, Wilcoxon's

attorneys alleged that they did not discover the error until

after trial. The court in Wilcoxon stated that the appellant and

his attorneys knew the witnesses spoke no English and were

under a duty [**7] to "take notice of the several steps in the

proceeding." Wilcoxon, 231 F.2d at 387 (citing People v.

Krotz, 341 Ill. 214, 172 N.E. 135 (Ill. 1930)). The court went

on to conclude that the appellant's failure to "bring the matter

to the attention of the trial court in some manner" constituted

waiver of the issue on appeal. Jd. (citing Beausoliel v. United

States, 107 F.2d 292 (D.C.-Cir. 1939).

We conclude that the failure of the appellant in the

present case to raise, at trial, the issue of sufficiency of the

oath given to C, or to lodge objection to the procedure used

to satisfy MIL. R. EVID. 603, forfeits the issue on appeal.

Having applied the doctrine of forfeiture vice waiver in

this case, we must further determine whether the failure to

give a complete oath prior to direct testimony constituted

plain error. In doing so, we apply the three-part test set out in

United States v. Powell, 49 M.J. 460, 464-65 (C.A.A.F.

1998): (1) whether there was error; (2) whether the error was

24a

plain or obvious; and (3) whether any prejudice resulted from

the error. The failure of the trial counsel to administer a

complete oath or affirmation [**8] prior to the direct

testimony of C was error, but, in our judgment, not plain or

obvious under the circumstances of this case. We also find no

prejudice suffered by the appellant as a result of the manner

in which the oath was administered, in light of the extensive

cross-examination following administration of the oath and

the witness's subsequent testimony under oath upon recall.

We therefore decline to grant relief.

Even assuming, arguendo, that the issue was not forfeited

by the appellant's silence at trial, we still would find no error

under the [*577] circumstances of this case. Here, the

witness was asked if she understood the difference between

truth and falsehood prior to her direct testimony. She was

sworn to that direct testimony prior to cross-examination and

asked if her prior testimony was accurate. Also, she was

properly sworn again when recalled for additional testimony

later in the trial. Under these circumstances, this court is

satisfied that the witness was testifying under an oath

sufficient to "awaken the witness's conscience and impress

the victim's mind with the duty" to testify truthfully. MIL. R.

EVID. 603. Therefore, we decline to grant relief.

Legal and [(**9] Factual Sufficiency

The appellant contends that the evidence was both legally

and factually insufficient to sustain his conviction for carnal

knowledge and indecent acts with a child. We disagree.

The test for legal sufficiency is whether, considering the

evidence in the light most favorable to the Government, any

rational trier of fact could have found the elements of the

crime beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979);

United States v. Turner, 25 M.J. 324, 325, (C.M.A. 1987);

25a

United States v. Reed, 51 M.J. 559, 561-62

(N.M.Crim.Ct.App. 1999), aff'd, 54 M.J. 37 (C.A.A.F. 2000);