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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2001

## Text

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,
ee

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.

i

i

TABLE OF CONTENTS
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TABLE OF AUTHORITIES ...........csssveee-- Meee evel: iii
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CONSTITUTIONAL PROVISION INVOLVED.............. 2
STATEMENT OF THE CASE .0..-.-sccccsssssssssscscescesseccccecseee 2
REASONS FOR GRANTING THE PETITION. ...........-0-- 7
I a pcececscircncimirecrersenree 12
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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
PTT ee ccsicacccssecagetenccdgwishicacedonainniboncionbacied 1,6,9

Federal Circuit Courts of Appeals

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

Re aidcics penictacicincasshieassaseesllegacece thee vata dahaeabinaedeanbeinie 9
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

iv

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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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,
v.
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

2
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:

3

‘ 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

—

5

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

6

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

8

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

9

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

10

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

il

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

12

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

la
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).

2a

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.

3a

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

4a

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.

5a

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.

6a

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.

Ta

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.

8a

(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

9a

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);
see also Art. 66(c), UCMJ.

The test for factual sufficiency is whether, after weighing
all the evidence in the record of trial and recognizing that we
did not see or hear the witnesses, as did the trial court, this
court is convinced of the appellant's guilt beyond a
reasonable doubt. Turner, 25 M.J. at 325; see also Art. 66(c),
UCM J.

‘ In this case, the appellant's averments on appeal are
nothing more than a restatement of the arguments made by
trial defense counsel at the close [**10] of the case on the
merits regarding the length of time between the alleged
incidents and the beginning of trial, the number of interviews
that the child witness had undergone, the improbability that
the acts occurred at all based on the physical evidence or lack
thereof, and the inconsistencies in the testimony of the child
witness and her mother. The appellant further asserts that
there was no evidence presented at trial regarding vaginal
penetration on the morning of the alleged incident.

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 testified that the
appellant had touched her "private parts” on more than one
occasion prior to, or on the morning of, the alleged incident.
She further testified that he had, on a number of those
occasions, placed his “private part" inside her "private part,
referring to the groin area of the male and female anatomy.
The appellant's wife testified that, on the morning of the
incident, she found the appellant in bed and under the bed
covers with C, with his penis exposed and partially erect.
[**11]} She further testified that C was nude, with her

26a

underwear lying at the foot of the bed, and that the appellant
was lying in a “spooned” position with C. Additional
testimony from the appellant's mother-in-law corroborated
the timeline and general account of the events of that
moming.

The defense, at trial, attempted to discredit the testimony
of the three principal Government witnesses through cross-
examination focused on a suggested motive to fabricate and
minor inconsistencies between their testimony and prior
statements. The defense also presented expert testimony
regarding the issue of fabrication in child witnesses through
suggestive reinforcement during repeated interviews prior to
trial. The members heard all the testimony and received all
the evidence, asking numerous questions. of their own during
the course of the trial.

The court is convinced beyond a reasonable doubt, based
on the evidence presented at trial, of the appellant's guilt of
both the offense of carnal knowledge and the offense of
indecent acts with a child. Therefore, we decline to grant
relief.

Sentence Severity

The appellant claims that his sentence consisting of a bad
conduct discharge, confinement [**12] for 9 years, and
reduction to pay grade E-1, is too severe in light of the
offenses for which he stands convicted. After reviewing
[*578] the entire record, we find that the sentence is
appropriate for this offender and his offenses. See United
States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988); United
States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982). We
therefore decline to grant relief.

Remaining Assignments of Error

27a

We have reviewed each of the appellant's remaining
assignments of error and find them lacking in merit.

Conclusion

Accordingly, we affirm the findings and sentence
approved by the convening authority.

Senior Judge CARVER and Judge REDCLIFF concur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1723%3A1. Public record. Not legal advice.