Filed: Jul. 01, 2019
Latest Update: Mar. 03, 2020
Summary: This opinion is subject to administrative correction before final disposition. Before HUTCHISON, TANG, and LAWRENCE, 1 Appellate Military Judges _ UNITED STATES Appellee v. Daniel H. WILSON Colonel (O-6), U.S. Marine Corps Appellant No. 201800022 Decided: 1 July 2019. Appeal from the United States Navy-Marine Corps Trial Judiciary. Military Judge: Colonel Peter S. Rubin, USMC. Sentence adjudged 10 September 2017 by a general court-martial convened at Marine Corps Base Camp Lejeune, North Carolin
Summary: This opinion is subject to administrative correction before final disposition. Before HUTCHISON, TANG, and LAWRENCE, 1 Appellate Military Judges _ UNITED STATES Appellee v. Daniel H. WILSON Colonel (O-6), U.S. Marine Corps Appellant No. 201800022 Decided: 1 July 2019. Appeal from the United States Navy-Marine Corps Trial Judiciary. Military Judge: Colonel Peter S. Rubin, USMC. Sentence adjudged 10 September 2017 by a general court-martial convened at Marine Corps Base Camp Lejeune, North Carolina..
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This opinion is subject to administrative correction before final disposition.
Before
HUTCHISON, TANG, and LAWRENCE, 1
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Daniel H. WILSON
Colonel (O-6), U.S. Marine Corps
Appellant
No. 201800022
Decided: 1 July 2019.
Appeal from the United States Navy-Marine Corps Trial Judiciary.
Military Judge: Colonel Peter S. Rubin, USMC. Sentence adjudged 10
September 2017 by a general court-martial convened at Marine Corps
Base Camp Lejeune, North Carolina, consisting of officer members.
Sentence approved by convening authority: confinement for 66 months
and a dismissal.
For Appellant: Catherine M. Cherkasky, Esq.; Lieutenant Daniel E.
Rosinski, JAGC, USN.
For Appellee: Lieutenant George R. Lewis, JAGC, USN; Major Kelli
O’Neil, USMC.
Senior Judge TANG delivered the opinion of the Court, in which Sen-
ior Judge HUTCHISON and Judge LAWRENCE joined.
1 Chief Judge WOODARD recused himself from this case and was not in-
volved in any capacity.
United States v. Wilson, No. 201800022
_________________________
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under NMCCA
Rule of Appellate Procedure 30.2.
_________________________
TANG, Senior Judge:
The appellant was charged with 24 specifications alleging unauthorized
absence, rape, rape of a child, sexual abuse of a child, battery, and conduct
unbecoming an officer and a gentleman, in violation of Articles 86, 120, 120b,
128, and 133, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 886,
920, 920b, 933. 2 He was convicted of one specification of sexual abuse of a
child on divers occasions, six specifications of conduct unbecoming an officer
and a gentleman, and one specification alleging unauthorized absence. 3
The specifications arise from three separate courses of alleged conduct. In
chronological order, the specifications relate to:
(1) The appellant’s improper conduct while serving as officer in charge of
an element of Marine Corps Rotational Forces in Darwin, Australia, in Feb-
ruary 2016, which resulted in the appellant’s relief and early return from de-
ployment. The appellant was convicted of six specifications of conduct unbe-
coming an officer and a gentleman for these offenses. Specifically, the appel-
lant: made an inappropriate comment to a Marine colonel’s wife; asked a Ma-
rine captain to provide a revealing photograph of his wife and a pair of her
underwear; showed the revealing photograph of the Marine captain’s wife to
an Australian commander; sent unprofessional social media messages to an
Australian major; and sent an email from a civilian employee’s email account
to the Australian commander.
(2) Allegations that arose from the appellant’s interactions with three fe-
male children of the P family aboard Camp Lejeune, North Carolina, in June
and July 2016, charging that the appellant raped, sexually abused, licked,
A specification alleging violation of a general order under Article 92, UCMJ, 10
2
U.S.C. § 892, was dismissed before trial.
Pursuant to a defense motion under RULE FOR COURTS-MARTIAL 917, MANUAL
3
FOR COURTS-MARTIAL, UNITED STATES (2016 ed.), the military judge dismissed one
specification under Article 120b, one specification under Article 128, and he deleted
the words “on divers occasions” from six other specifications.
2
United States v. Wilson, No. 201800022
and struck six-year-old BP, and that he licked and struck six-year-old MP,
BP’s twin sister. The appellant was also charged with three specifications of
conduct unbecoming an officer and a gentleman for allegedly offering alcohol
to BP, MP, and their ten-year-old sister, SP. The appellant was convicted of
one specification of sexual abuse of BP by touching her genitalia, but he was
acquitted of all other offenses related to the P family.
(3) Allegations that the appellant sexually and physically assaulted an
adult woman, JW, in his quarters aboard Camp Lejeune, and while the appel-
lant, his wife, and JW were on a trip to Marine Corps Air Station Beaufort,
South Carolina, in December 2016 and January 2017. Because JW’s allega-
tion revealed that the appellant travelled away from Camp Lejeune without
leave from 28 December 2016 through 4 January 2017, the appellant was
charged with unauthorized absence. The appellant was acquitted of all of-
fenses relating to JW, but he was convicted of unauthorized absence.
The appellant asserts six assignments of error (AOEs): (1) that the appel-
lant’s conviction under Charge I, Specification 2, for sexual abuse of BP is le-
gally and factually insufficient; (2) that Charge I, Specification 2, fails to
state an offense because it does not allege whether the appellant touched
BP’s genitalia directly or through the clothing; 4 (3) that the military judge
erred by admitting BP’s out-of-court forensic interview; (4) that the military
judge abandoned his impartiality when he suggested a legal theory of admis-
sibility applied to BP’s forensic interview that trial counsel was not arguing;
(5) that the military judge erred by allowing Ms. P to testify about “shocking”
and “concerning” behavior the appellant allegedly committed; and (6) that the
military judge erred in denying a defense motion for a mistrial based on trial
counsel’s opening statement. 5 We find merit in AOE (1). Our action renders
all remaining AOEs moot with the exception of AOEs (4) and (6), which we
find lack merit. Accordingly, in our decretal paragraph, we dismiss Charge I,
Specification 2 with prejudice and, finding that we are unable to reassess the
sentence, remand the case for a rehearing on sentence.
4The specification reads, “In that [the appellant] . . . did . . . on divers occasions,
between on or about 26 June 2016 and on or about 13 July 2016, commit a lewd act
upon [BP] . . . by touching the genitalia of [BP], with an intent to arouse or gratify
the said [appellant’s] sexual desire.” Charge Sheet.
5 Specifically, trial counsel displayed a presentation containing two photographs
of the appellant with JW’s minor daughter, and stated that JW permitted her daugh-
ter to associate with the appellant “even though he was at least rumored or pending
child sex assault charges.” No charges were related to JW’s daughter, and the mili-
tary judge did not admit the photographs during the trial. Record at 850.
3
United States v. Wilson, No. 201800022
I. BACKGROUND
A. The Appellant’s Background with the P Family
Several allegations against the appellant relate to his interactions with
the family of Major P, USMC. Major P and his wife, Mrs. P, have three
daughters. In July 2016, SP was 10 years old and twins MP and BP were 6.
The appellant first met Major P in 2007 or 2008 while Major P was tem-
porarily assigned to the appellant’s command. The appellant became Major
P’s direct supervisor in 2015 when both officers were serving in Okinawa. As
Major P’s reporting senior, the appellant rated Major P as his “hundred,” one
of the “top majors” on whom he had ever written reports. 6 The appellant be-
came a mentor to Major P. The two officers stayed in touch with one another
after the appellant deployed to and was returned early from Darwin, Austral-
ia. The appellant transferred to Camp Lejeune, North Carolina, where he
moved into field grade officer housing on base with his wife, Mrs. W.
Major P next had contact with the appellant when he moved to Camp
Lejeune in the summer of 2016. Major P described his family’s change of sta-
tion move from Okinawa to Camp Lejeune as “very challenging.” 7 The family
of five, along with two dogs, spent over a month staying with various family
members until they moved to Camp Lejeune in mid-June 2016. For several
weeks, they stayed in two different extended stay hotels in the local area be-
fore they were able to move into base housing on 28 June 2016. They did not
receive their household goods shipment until late-July 2016. For much of this
time, they did not have a washer and dryer. 8
Upon arriving in Camp Lejeune on 13 June 2016, Major P and his family
drove by the appellant’s house on base, unannounced, hoping to see him.
They found the appellant outside. Mrs. P met Mrs. W for the first time, and
the two women exchanged contact information. In the following days, Mrs. P
and Mrs. W corresponded using social media messaging. The social media
messaging correspondence admitted at trial reveals that Mrs. P and Mrs. W
quickly became friends.
The appellant and Mrs. W offered to help the P family during their period
of transition. Specifically, Mrs. W invited Mrs. P to come over any time she
6 Id. at 932.
7
Id. at 890.
8 In the extended stay hotel, they had limited access to shared laundry facilities,
which were insufficient, inconvenient, or dysfunctional.
4
United States v. Wilson, No. 201800022
wanted to do laundry or to get a change of scenery from the small, extended
stay hotel room where they were staying. Mrs. P accepted this offer and took
her daughters to Mrs. W’s house on several occasions to do laundry while she
socialized with Mrs. W. The appellant and Mrs. W invited the P family to
their house for dinner several times over the following weeks.
Major P testified that he was happy that the appellant and Mrs. W wel-
comed his family to the area and helped ease their “tumultuous” move to
Camp Lejeune. 9 Mrs. P welcomed Mrs. W’s friendship as a “blessing,” provid-
ing much-needed adult interaction and a good escape from being stuck in a
hotel room all day with three children. 10
The P children were never left alone with the appellant. Any time they
visited the appellant’s house, at a minimum, Mrs. P and Mrs. W were in an
adjacent room, not separated by any doors and within earshot. The P children
were rambunctious in their play with the appellant during their visits to his
house, and they enjoyed climbing on him and playing games inside and out-
side with him.
At trial, SP testified that BP and MP played with the appellant a lot,
while SP remained away. BP and MP would “usually sit on his lap and—like
Santa Claus—and fall off of the chairs and stuff, and cry because they fell off
of the chairs.” 11 SP said the younger sisters would “roughhouse” with the ap-
pellant and agreed that they were “always climbing” on him. 12
Neither Major P nor Mrs. P sought to stop this behavior, nor did they no-
tice any cause for concern. Mrs. P repeatedly posted photos of her children’s
and the appellant’s antics to social media and thanked the appellant and
Mrs. W for their friendship and hospitality, noting that her children had en-
joyed their company. The appellant and Mrs. W lent Major and Mrs. P their
futon because they were sleeping on the floor, which hurt their backs.
The appellant often asked his Marines and friends to call him “Uncle
Dan.” Although his Marines did not depart from military courtesy, the P chil-
dren referred to him as “Uncle Dan,” which Major P and Mrs. P saw as a
term of endearment.
9 Record at 900.
10 Id. at 977.
11
Id. at 1183. Prosecution Exhibit 21 depicts this rough-and-tumble play with the
appellant on the couch.
12 Record at 1189.
5
United States v. Wilson, No. 201800022
In Camp Lejeune, the appellant was not in Major P’s direct chain of com-
mand. But he was assigned to the G-3 staff of II MEF, which is the next
higher echelon over Major P’s unit. The two officers had no reason to interact
professionally. Major P and the appellant became workout partners. They
worked out “almost every weekday morning,” during which time they talked
about work and their families. 13
At trial, the government presented the details of several occasions when
BP was with the appellant. The government used consistent labels to refer to
each occasion. For consistency, we will use the same nomenclature.
B. The Appellant’s Interactions with BP in June and July 2016
1. Cookout night—29 June 2016
On 29 June 2016, Mrs. W treated Mrs. P and her three daughters to pedi-
cures and they went to lunch. That same evening, Major P took his family to
the appellant’s house around dinner time. Mrs. P was talking with Mrs. W;
the two women remained inside in the kitchen most of the time. The three
children were playing. Major P was talking to the appellant and grilling the
meat for dinner. The appellant and Mrs. W purchased an outdoor yard game
called “Washers,” in which each player attempts to throw a “disk-type coin”
into their opponent’s cylinder. 14 BP played Washers with the appellant in the
front yard. Major P testified that the appellant “spent a lot of time” with BP,
which he described as the appellant playing Washers with BP for “maybe
from 30 minutes to an hour and a half.” 15 Major P could see BP and the ap-
pellant from his position near the grill. The front door was open and the P
children were running in and out of the house. Mrs. P testified that there
were times when BP was sitting on the appellant’s lap while they were alone
in the living room. The big screen TV, with a digital video streaming device,
was in the living room and was “always on.” 16 At the end of the night, the ap-
pellant carried BP to the P’s car.
13 Id. at 900.
14
Id. at 896. Major P described the game as being similar to “Cornhole,” a game
in which opponents attempt to throw a beanbag through a slot in a wooden platform
on the ground.
15
Id. at 896-97.
16
Id. at 1046.
6
United States v. Wilson, No. 201800022
Mrs. P thanked Mrs. W for her hospitality. She posted pictures to her so-
cial media profile of BP and the appellant playing Washers, and they began a
running joke about how the appellant needed to beat BP in Washers again.
2. Trampoline assembly morning and fishing night—3 July 2016
Major P bought a trampoline for his backyard, and he intended to assem-
ble it on 3 July 2016. The appellant offered to assist. On the morning of 3 Ju-
ly, Major P sent the appellant a social media message stating he intended to
start assembling the trampoline at 1000. The appellant did not respond to
the message. He went to Major P’s house around 0830 or 0900 and spent
“several” hours helping Major P assemble the trampoline in the summer
heat. 17 Major P’s daughters were running around in the yard, playing.
The appellant invited the P family to his house for dinner that night. The
appellant also invited a Navy corpsman and his girlfriend over for dinner.
The corpsman had previously served with Major P and the appellant in Oki-
nawa. Major P took his family to the appellant’s house around 1600. Major P
fished in the river near the appellant’s house. At various times, his daughters
SP and MP joined him. The appellant and Mrs. W ordered pizza for their
guests. Mrs. P testified that BP was with the appellant in the living room,
sitting in his lap, for a “good majority of the evening” while Mrs. P was in the
kitchen talking to Mrs. W and Major P was fishing. 18 Mrs. P posted a photo to
social media depicting BP sitting next to the appellant on a sofa in the living
room.
When the appellant and Mrs. W invited the P family to join them at a
friend’s house to watch fireworks for the Fourth of July, the P’s initially ac-
cepted then declined the offer. Major P testified that they elected to spend the
night as a family.
3. “Trouble at the barracks”—8 July 2016
On Friday, 8 July 2016, Mrs. P took her daughters shopping and out to
lunch with Mrs. W.
Also that day, Major and Mrs. P had accepted an invitation to have dinner
at the appellant’s house. Although Major P intended to join his family, he un-
17 Id. at 901.
18
Id. at 994.
7
United States v. Wilson, No. 201800022
expectedly had to work late to draft and send a situation report relating to a
hazing incident in the barracks. 19
Mrs. P testified she again spent a majority of the evening in the kitchen,
talking to Mrs. W while SP and MP were playing inside and outside of the
house and BP sat on the appellant’s lap in the living room for a “majority” of
the evening. 20 The appellant played “Marine” with all three girls, mimicking
a drill instructor and teaching the children to act like Marines. 21 Mrs. P post-
ed photos on social media depicting the antics. SP testified that MP and BP
were “going crazy” playing this game with the appellant. 22
Mrs. P testified that the appellant inexplicably went into a bathroom,
leaving the door open, and washed his hands. She testified that he also inex-
plicably went into a small, unused room, known as the maid’s quarters,
where he remained alone for about 5 minutes. There is a bathroom within the
maid’s quarters. Mrs. P testified that BP came into the kitchen and peered
around the corner in the direction of the maid’s quarters, then returned to
the living room.
At some point after 13 July 2016, Mrs. P realized she had received a
voicemail from the appellant’s cell phone the evening of 8 July 2016 in which
the appellant and BP apparently prank-called Mrs. P. BP can be heard ask-
ing what she should say, and the appellant told her to just talk. Then BP said
“blah blah blah” over and over. 23
4. Offer to buy groceries—9 July 2016
The next morning, the appellant came to the P’s home unannounced. Ma-
jor P testified that “[h]e wanted to check on us and see if we needed any gro-
ceries.” 24 The appellant then asked Major P, “Aren’t you going to invite me
19 The government suggested that the appellant was aware of the incident, and
its attendant time-consuming reporting requirements, and would therefore realize
that Major P would not likely be able to join his family for dinner.
20 Record at 999.
21 Id. at 999-1000.
22Id. at 1188.
23
Id. at 1003.
24
Id. at 907.
8
United States v. Wilson, No. 201800022
in?” at which point Major P invited the appellant in and offered to make
breakfast. 25
The appellant made two comments that Major P and Mrs. P found
strange. The appellant said he found some “panties” that were too small to
belong to Mrs. W. 26 Mrs. P assumed that the appellant had found her under-
wear, which she assumed she accidentally left at the appellant’s home while
doing laundry, and she became embarrassed. 27 Then Major P commented
that his family had many expenses moving from Okinawa to Camp Lejeune,
and that he was adjusting to the decrease in pay because he lost his Cost of
Living Allowance. In response, the appellant said, “What’s wrong? Do you
need money?” 28 Major P said no. Then the appellant asked, “[W]hat’s a couple
thousand dollars between family?” 29
Although Major P’s daughters may have seen the appellant, they did not
have any notable interaction with him during this visit.
5. The day before “disclosure night”—12 July 2016
During the afternoon, Mrs. P took her daughters to a farmers’ market and
to the Marine Corps Exchange with Mrs. W. They had a late lunch and
brought food back to Mrs. W’s house for the appellant. Major P was going to
join them, but then he was unexpectedly detained at work. As the hours
passed, he “kept [Mrs. P] abreast of the situation” and ultimately decided he
could not attend. 30
Mrs. P testified that she again sat in the kitchen with Mrs. W while SP
and MP played inside and outside of the house and BP stayed in the living
room with the appellant. Mrs. P stated the appellant was “unsupervised”
with BP “95 percent” of the “several hours” the P children were there. 31 Once
again, the appellant washed his hands without explaining why he did so, and
25 Id. at 908.
26
Id. at 909.
27 On 11 July 2016, Mrs. W returned a pair of BP’s underwear to Mrs. P. The ap-
pellant had set them aside in the laundry room. Mrs. P did laundry at the appellant’s
home on more than one occasion.
28 Record at 909.
29
Id.
30 Id. at 910.
31
Id. at 1011-12.
9
United States v. Wilson, No. 201800022
he “disappeared into the maid’s quarters for a few minutes.” 32 Again, BP
peered around the corner looking for him but did not go inside the maid’s
quarters. 33
6. Dinner party with Dr. A on BP’s “disclosure night”—13 July 2016
During their daily workouts, Major P and the appellant discussed Major
P’s intention to invite a colleague and friend, Dr. A, to travel to Camp Lejeu-
ne to deliver a professional military education (PME) lecture to his unit.
Major P and Mrs. P were close friends with Dr. A, a senior foreign service of-
ficer, a senior executive service equivalent official, who worked for the U.S.
Agency for International Development. The appellant had never met Dr. A
before 13 July 2016. When Major P’s chain of command did not fund the trip,
the appellant worked with the MEF to pay for Dr. A’s expenses.
On 13 July 2016, the appellant and Mrs. W hosted a dinner at their home
for Dr. A and the P family. Mrs. P spent most of her time in the kitchen with
Mrs. W. Major P, the appellant, and Dr. A were in the living room talking. BP
was never alone with the appellant. The record indicates that no one believed
the appellant had any opportunity to commit a lewd act upon BP on 13 July
2016.
The events of 13 July 2016 were distinct from the P family’s prior interac-
tions with the appellant and Mrs. W. First, Dr. A was present. Second, Mrs. P
sat on the appellant’s lap, at the appellant’s urging, that night and only that
night. Third, that was the night the appellant gave BP a ten-dollar bill. These
events help distinguish “disclosure night” from the other times BP went to
the appellant’s house. And, unique to “disclosure night,” we have the testi-
mony of a witness outside the P family—Dr. A.
Dr. A described the children’s manner of play with the appellant:
He kind of rough housed and tumbled . . . just played with
the girls. The girls really seemed to like it and enjoy rough and
tumbling with him. And they had some jokes and fun togeth-
er. 34
At one point, the appellant gave BP a ten-dollar bill and stated he did so
because BP won a bet. At one point during the evening, Mrs. P was sitting on
32 Id. at 1012.
33
Id.
34 Id. at 1255.
10
United States v. Wilson, No. 201800022
the appellant’s lap. 35 The appellant had repeatedly asked her to do so, and
after initial reluctance, she acquiesced.
While Major P and Dr. A were in the living room with the appellant, MP
and BP were “playing with [the appellant], like, in his lap,” and they were
“jumping all on him.” 36 SP was in and out of the living room. Major P heard
someone mention an “outie,” which is a term the P family used to refer to pro-
truding bellybuttons. 37 Then BP fell, hit the floor, and ran to the kitchen cry-
ing to Mrs. P.
Mrs. P testified that she heard MP state that she had pushed BP off the
couch because BP was lifting up her shirt to show her bellybutton to the ap-
pellant.
Major P witnessed only part of the exchange between BP and Mrs. P. He
testified he heard his wife say, “Did you show your outie?” and “We don’t do
that. We don’t show people our outies. You shouldn’t be showing your belly-
button to anyone.” 38 Major P testified that he added, “Hey, we don’t show
people our bellybuttons. We don’t lift up our shirt.” 39 Then he returned to the
living room to talk to the appellant and Dr. A.
All three children were becoming upset, so Mrs. W offered to take them
upstairs to assist in unpacking her jewelry in order to distract them. Accord-
ing to Mrs. P, BP did not want to go. Mrs. W left with SP and MP.
C. BP’s Disclosure to Mrs. P
Before 13 July 2016, Mrs. P had had a conversation with Mrs. W in which
she confided in Mrs. P and described some of her marital concerns. According
to Mrs. P, Mrs. W told her that the appellant had asked Mrs. W if she would
engage in a three-way sexual encounter with another man. The content of
this conversation was the subject of a pretrial motion in limine. The military
judge disallowed any reference to the specific details of this conversation.
However, he ruled that he would permit Mrs. P to testify that, prior to 13 Ju-
35 See id. at 1267.
36
Id. at 914.
37 Id.
38
Id. at 914.
39
Id.
11
United States v. Wilson, No. 201800022
ly 2016, she had a reason to be concerned and “shocked” about the appellant
as a mother based on something Mrs. W told her in confidence. 40
Once Mrs. W took SP and MP upstairs, this left Mrs. P alone in the kitch-
en with BP. Having prior knowledge of the appellant’s proposition to Mrs. W,
Mrs. P was concerned why BP would lift up her shirt to show the appellant
her belly button. As a result, she began to question BP, and BP eventually
told Mrs. P that the appellant had touched her genital area. In the middle of
this conversation, Mrs. W returned to the kitchen with SP and MP. Mrs. P
then took BP into the bathroom, where she continued to ask BP what hap-
pened. BP told Mrs. P that the appellant repositioned her on his lap by using
his hand to pull her up by her crotch and that he would rub her crotch.
Mrs. P’s testimony about BP’s initial disclosure of abuse—as told to her in
the kitchen—was the subject of intense cross-examination at trial. The cross-
examination centered on whether Mrs. P was the first person to suggest that
the appellant touched BP’s genital area, or whether BP spontaneously dis-
closed touching without questioning by Mrs. P. We will describe Mrs. P’s tes-
timony about BP’s disclosures in detail below.
D. Departure from the Appellant’s Home Following BP’s Disclosure
After speaking with BP alone in the bathroom, Mrs. P burst into the liv-
ing room looking “fired up.” 41 Without explaining, she “was . . . telling the
kids to get out . . . of the house.” 42 She did not respond when Major P asked
why. She stated, “We have to go for your own safety, for everything. We have
to go now.” 43 Once Major P got the three children outside of the house, Mrs. P
told him that the appellant “touched” BP. 44
Both Major and Mrs. P testified that the P family left the appellant’s
home but that Mrs. P re-entered, without the P children, to angrily confront
the appellant. However, Dr. A testified that Mrs. P confronted the appellant
in the presence of her family before they left. Dr. A recalled that Mrs. P called
the appellant a “bastard” and “you f[***]ing bastard” as soon as she reentered
40 Id. at 1020. In cross-examination, Mrs. P testified the shocking information
had nothing to do with children.
41
Id. at 915.
42
Id.
43 Id.
44
Id. at 916.
12
United States v. Wilson, No. 201800022
the living room and before rushing the family out of the house. 45 The appel-
lant asked Mrs. P, “[W]hat did I do?” 46 The whole group was stunned at what
was happening. Mrs. W joined the group in the living room and Mrs. P “spoke
a few more words of anger.” 47 According to Dr. A, all of the P children were
“congregating around” Mrs. P while she confronted the appellant. 48 Dr. A re-
called Mrs. P proclaiming, “You know exactly what you did. You know damn
well what you did. I’m going to ensure that we take this to the highest levels
of law,” before departing the appellant’s home. 49 Mrs. P then ushered the
family out of the house and Major P and Dr. A followed.
Once outside the house, and while still angry, Mrs. P stated that she
wanted to take a knife and stab the appellant. 50 Mrs. P agrees that she made
this statement outside of the appellant’s house and in the presence of her
three children. Dr. A went back into the appellant’s house to retrieve his be-
longings. He described the appellant and Mrs. W as “confused and dazed” and
wondering what had happened. 51
SP agreed her mother was “really mad” on 13 July 2016—the most angry
she had ever seen her mother. 52 SP recalled that Mrs. P was inside of the ap-
pellant’s house, yelling at him, and she could hear her mother use a curse
word even though SP was standing outside. When the family got into the car,
Mrs. P was still yelling and said, “I just want to get a knife and kill him.” 53
45 Id. at 1259. Dr. A paraphrased this word as the “f-bomb.”
Id. He described how
out of character this behavior was for Mrs. P, who was a “very poised and in-control,
dignified human being.”
Id.
46 Id.
47
Id.
48 Id.
49
Id. at 1260.
50 At trial, the defense counsel cross-examined Mrs. P, challenging that MP told a
forensic interviewer she was deliberately withholding information because her moth-
er told her not to say something. Mrs. P was asked if she told her children not to tell
anyone about this threat. She replied that she did not “ask them not to tell anybody
about it” but that she “asked them to never ever repeat that because it was awful” of
her to say.
Id. at 1076.
51
Id. at 1260.
52
Id. at 1191.
53
Id.
13
United States v. Wilson, No. 201800022
Hearing her mother make that statement scared SP. This was very out of
character for Mrs. P.
Dr. A left with the P family in their van. Mrs. P drove. She was still angry
and, according to Major P, remained so the entire drive home. 54 Dr. A told her
she needed to calm down and focus on getting the family home safely. Dr. A
sat in the front passenger seat. The children were in earshot of Mrs. P’s con-
versation with Dr. A.
Both SP and MP testified that the family discussed the night’s events
during their drive home. SP testified that on the car ride home, the family
discussed how Mrs. P was embarrassed and SP was a “little bit mad” that the
appellant had asked Mrs. P to sit on his lap. 55 MP testified that her mother
said that she wanted to hurt the appellant during the drive home. This was
“scary” for MP. 56 MP testified, “My mom and dad told me not to tell anyone
else” about the comment. 57
Once the P family arrived home, Dr. A stayed with the three P daughters
while Major P consulted his chain of command and Mrs. P called 911. Officers
from the base police and the Naval Criminal Investigative Service (NCIS) re-
sponded to the home and took preliminary statements from Major and
Mrs. P. After the officers left, Major P walked Dr. A back to his hotel room,
leaving Mrs. P at home with the three P children.
That night, Dr. A emailed the appellant to state that he would not deliver
the PME lecture and would leave the next morning, which he did.
E. Parental Questioning by Major and Mrs. P
At trial, Major and Mrs. P consistently resisted defense cross-examination
which suggested that they met with all three of their daughters, together,
and told them about BP’s allegation. They testified that they made “general-
ized” reference to BP’s allegation, merely telling the children that “[s]ome-
thing happened” and therefore they would have to “give statements.”58 Mrs. P
consistently maintained that she could not recall when or where in the home
54 Dr. A described Mrs. P as “extremely upset” but testified that she calmed down
after he urged her calm down to avoid upsetting her children. Record at 1262.
55 Id. at 1189.
56
Id. at 1169.
57
Id. at 1170.
58
Id. at 919.
14
United States v. Wilson, No. 201800022
she and her husband spoke to the three girls together. 59 They denied that
they ever asked for further details from BP before she was forensically inter-
viewed. 60
However, both SP and MP testified that their parents talked to them
about the specifics of BP’s allegation. MP said her parents told her that the
appellant “did something wrong to [her] sister” and that Mrs. P “told [her the
appellant] touched [BP] in a bad place.” 61 SP testified that her parents gath-
ered the three children together in SP’s room on the night of 13 July 2016
and talked about what happened and asked a lot of questions about what the
appellant did to them.
F. Investigative Efforts and Evidence at Trial
Agents of NCIS investigated the allegation of sexual abuse. They inter-
viewed Major and Mrs. P and took written statements. The agents arranged
for BP to be forensically interviewed on 14 July 2016, less than 24 hours after
her disclosure.
Major P participated in a “controlled call” with the appellant on 14 July
2016. 62 Major P called the appellant and confronted him with BP’s allegation
while, unknown to the appellant, NCIS agents recorded the conversation. The
appellant adamantly denied that he touched any of the girls inappropriately.
He agreed that BP sat on his lap and horse-played with him—facts that were
not in dispute at trial.
On 15 July 2016, Major and Mrs. P took BP to a clinic that specializes in
conducting child sexual assault forensic examinations. The examiner used a
specialized device to visualize BP’s genitalia from two vantage points—while
BP was lying on her back frog-legged, and again with BP turned over, in a
knee-to-chest position. The forensic examiner testified that BP’s examination
was normal. A normal finding neither proves nor disproves abuse occurred.
59 Consistent with their version of events, it only makes sense that this discus-
sion took place before the children were forensically interviewed, but Mrs. P would
not confirm this.
60 Mrs. P testified she only talked to BP when BP came to her with “something
she needed to share,” and then she would only “listen and then . . . love her.” Record
at 1077.
61 Id. at 1169, 1172.
62
Id. at 919.
15
United States v. Wilson, No. 201800022
Major and Mrs. P collected articles of BP’s clothing to be tested for the
appellant’s DNA. Some of the clothing had been washed; some had not. It was
not known on which days BP wore which items of clothing. All items were
tested for the presence of semen, and all items tested negative. Although a
very small amount of male DNA—on the order of one to three cells—was
found on the inside panel of one pair of BP’s underwear, no determinations
could be made. Even advanced low-level DNA analysis at a second forensic
laboratory could not yield a profile from which any person could be included
or excluded as a match.
BP’s sisters, MP and SP, were also forensically interviewed in July 2016.
In March 2017, all three of the P children were forensically re-interviewed by
a more highly trained interviewer.
The investigation did not yield any physical evidence beyond the presence
of a small amount of unidentifiable male DNA in a pair of BP’s underwear.
The mere presence of male DNA is not incriminating because Mrs. P washed
BP’s clothes in the appellant’s washing machine, and BP lives with her
father.
No witness saw the appellant touch BP’s genitalia. Despite the proximity
of others in and around the house, no witness ever heard any cause for con-
cern. BP did not disclose any abuse to either sister at any point prior to her
disclosure to Mrs. P on 13 July 2016. The appellant emphatically denied that
he ever touched BP in an inappropriate manner. Therefore, the government’s
case relied almost entirely on BP’s testimony and statements, which we
detail below.
G. BP’s Testimony and Statements
At trial, the government presented BP’s testimony and several of her out-
of-court statements. BP testified briefly on direct and cross-examination.
Mrs. P was permitted to testify about some of the statements BP made to her
in the appellant’s kitchen and bathroom on 13 July 2016. The government
presented the video of BP’s 14 July 2016 forensic interview. And finally, gov-
ernment and defense experts recounted, without objection, some of the
statements BP made during her March 2017 forensic re-interview.
We recount BP’s statements in chronological order, starting with her ini-
tial disclosures to Mrs. P on 13 July 2016.
16
United States v. Wilson, No. 201800022
1. BP’s disclosure as Mrs. P recalled at time of trial
On direct and re-direct examination, Mrs. P testified that the following
exchange occurred in the appellant’s kitchen after BP ran to her, crying, and
Mrs. W took BP’s sisters upstairs. Mrs. P asked BP why she showed the ap-
pellant her bellybutton. Then Mrs. P told BP:
If anyone asks you to see up here, you can always say no.
You do not need to show them. . . . This area up here is private
to a female, a girl, just like our area down here. We don’t
show. 63
Mrs. P testified that BP made a disclosure in response to that statement,
but on direct examination, due to hearsay objections, she was not permitted
to testify to the content of BP’s first disclosure. When Mrs. W returned to the
kitchen with SP and MP, Mrs. P took BP into the bathroom where they were
alone. She testified she asked BP to “show mommy what [the appellant]
would do.” 64 Mrs. P testified that BP “unbuttoned her pants and put her hand
inside of her underwear and said that [the appellant] would rub around her
area and say, ‘You’re such a good girl.’ ” 65 Mrs. P testified she then pulled
BP’s pants and underwear down further, pointed at BP’s vagina and asked,
“Does he ever touch you there?” 66 She testified, BP said:
I don’t know why he does this, mommy, but when he goes to
pick me up and scoot me up higher on his chest, he doesn’t pick
me up like you and daddy do by my arms. He puts his hands
between my legs and he pushes really hard and it burns and
it’s been burning a lot. 67
While BP’s underwear were down, Mrs. P looked at BP’s genitalia and
saw no injury or abnormality. At that point, Mrs. P told BP “it was very
brave” that she told her mother, and she said, “I love you so much, and we
will never come back here again. And he will never ever touch you like that
again.” 68
63 Id. at 1022.
64
Id. at 1023.
65
Id. at 1086.
66
Id. at 1024.
67
Id. at 1086.
68
Id. at 1024. The trial defense counsel objected and the military judge sustained
the objection but did not instruct the members to disregard the testimony.
17
United States v. Wilson, No. 201800022
2. BP’s disclosure as described by Mrs. P in her written statement
On cross-examination, the defense counsel impeached Mrs. P, who agreed
she provided a different version of her conversation with BP in the appel-
lant’s kitchen in a written statement she provided to NCIS agents on 14 July
2016. She agreed that her written NCIS statement described the exchange as
such:
Mrs. P said, “[BP], nobody should be asking you to lift up your shirt or
show them anything on your body.” 69
BP said something about the appellant wanting to see her “outie.”
Mrs. P said, “Mommy isn’t mad at you. I just want you to know your belly
is still part of your body that we cover. And we don’t need to ever show any-
one anything on your body. You can always tell someone no.” 70
Mrs. P next stated, “Just like no one should look at or touch our privacy,
people should not ask you to lift up your shirt.” 71
She noted that BP responded, “He didn’t touch me there.” 72
Mrs. P asked, “Touch you where baby?” to which BP responded she was
referencing her “privacy.” 73
Mrs. P said, “[BP], mommy never said he touched you there.” 74
BP responded that he did not touch her there.
The exchange recited above preceded BP’s disclosure in the kitchen and
Mrs. P’s additional questions in the bathroom. At trial, Mrs. P agreed that
she made a written statement to NCIS agents on 14 July 2016; that the
events were fresh in her mind on 14 July 2016; and that her memory was bet-
ter on 14 July 2016 than it was by time of trial. She agreed that she typed the
statement herself; that the agent did not rush her; that she was given the op-
portunity to review the statement and to make corrections; that she placed
her initials before and after each paragraph; that she swore to its truth; and
69 Id. at 1062.
70
Id. at 1063.
71
Id. (emphasis added). No witness explained what was meant by the term “pri-
vacy,” but Major and Mrs. P’s testimony established that the P family used the word
“private part” or “private area” to refer to parts from “the waist down” or places that
should not be touched by others.
Id. at 950, 1058.
72
Id. at 1066, 1073.
73
Id. at 1073.
74
Id. at 1074.
18
United States v. Wilson, No. 201800022
that she used quotation marks to indicate the statements she believed were
made verbatim. She agreed that the defense counsel accurately read the
above exchange as Mrs. P had written it in her NCIS statement. 75
With one exception, Mrs. P agreed her NCIS statement accurately re-
counted her exchange with BP. Mrs. P conceded that she wrote in her NCIS
statement that she was the first person to use the word “touch,” not BP.
However, she testified repeatedly, “That’s not how I remember it.” 76 At trial,
she insisted that she only used the word, “see” when she was talking to BP
and that BP was the first person to say the word “touch.” 77 She also agreed
that the rest of her written NCIS statement was accurate, including the fact
that BP twice stated that the appellant did not touch her genitalia before ul-
timately disclosing that the appellant did touch her genitalia. 78
3. BP’s July 2016 forensic interview
Over defense objection, the military judge admitted almost the entirety of
the video of BP’s forensic interview from 14 July 2016 as Prosecution Exhibit
(PE) 34. 79 The video contains the following incriminating statements.
75 AE CXXIII is Mrs. P’s typewritten, signed, sworn NCIS statement of 14 July
2016, which was used to refresh Mrs. P’s recollection at trial. Though the document
was not admitted, we have reviewed it and confirmed that the defense counsel read
Mrs. P’s statements verbatim from the document, and the exchange recited above
was contained in Mrs. P’s written statement to NCIS.
76 Record at 1059.
77 Id. at 1059-60. Mrs. P agreed that her written statement was inconsistent with
her testimony at trial. However, she maintained that she had carefully reviewed the
transcript of her oral interview with NCIS and that her interview statements were
consistent with her testimony.
78 See
id. at 1075.
79 The parties litigated the admissibility of BP’s interviews pre-trial. The military
judge ruled that BP’s 14 July 2016 interview was reliable and material, but that he
would not permit the government to admit it absent a showing of necessity based on
BP’s testimony at trial. After BP’s testimony, the government renewed its motion and
the military judge found that the video was necessary because “BP was unable to re-
member and/or articulate many of the specific details and material facts” of her fo-
rensic interview and because they were needed to show “that an assault did not occur
on 13 July 2016, the night of the disclosure to [Mrs. P] at the dinner party.” AE
CLXXVIII.
19
United States v. Wilson, No. 201800022
The forensic interviewer first asked BP if she knew why she was there by
asking whether her parents were worried about her. BP replied:
They were super-duper worried last night because I told
them, like, my sister accidentally pushed me and then I fall
[sic]. And then I went crying to my mom. And then she told me,
. . . “Did [the appellant] do anything to you?” And I was like,
“No. [MP] accidentally pushed me.” And then she’s like—and
then I said, “Well, he has done other things to me at different
times when we go to his house.” And he’s been doing inappro-
priate weird things to me, and I don’t really like it, and it’s
been hurting. 80
BP made the following statements to the forensic interviewer before the
interviewer paused the interview to consult the NCIS case agent.
She said that the appellant did “inappropriate” things to her one time
when she was sitting on his lap at his house. 81 This happened “like, maybe a
few days ago,” “[m]aybe the second day we went to . . . his house or the
first.” 82 BP stated this happened the night the appellant wanted her mother
to sit on his lap. 83 BP described that the appellant was “sad” because Mrs. P
would not sit on his lap, so BP sat on his knee and that is when he “started
doing inappropriate things” to her, which she described as the appellant
“scooted [her] up a little bit,” using her “parts” to “scoot [her] up.” 84
When asked to explain, she stated “he’s been pushing on my—he’s like
scooting his hand up my part and I don’t like it” and she explained that she
was referring to her private part, which is the one she uses to go “potty.” 85
She later indicated on a diagram, circling the figure’s vagina, to show which
“private” part she said the appellant touched. She stated she was wearing
80 PE 34 at 10:53:00. Although BP was recounting events that occurred less than
24 hours prior to her interview, we note that BP’s description of her disclosure is sig-
nificantly different from Mrs. P’s testimony at trial and Mrs. P’s written statement to
NCIS.
81 Id. at 10:53:57-10:54:44.
82
Id. at 10:54:59.
83 Testimony indicates this occurred on 13 July 2016 and that Mrs. P actually sat
on the appellant’s lap.
84
Id. at 10:56:05-10:56:50.
85Id. at 10:57:35-10:58:19. The interviewer did not ask BP to specify what she
meant by “potty.”
20
United States v. Wilson, No. 201800022
shorts and said the appellant’s hands were “like . . . cupping, and then push-
ing it up.” 86 On the video, BP demonstrated the “cupping” motion with her
hand, by which she cupped her hand with her fingers together, palm facing
down, and she moved her arm and hand inward, toward her body.
When the interviewer asked whether this was “over [her] clothes or under
[her] clothes or something else,” BP stated it was “[s]ometimes under and
sometimes over.” 87
BP alternately stated it happened on “[o]nly one day”; that it happened at
“different times” on that one day; and that he “sometimes [did it] on [her] un-
derwear, and sometimes [he did it] over [her] underwear.” 88 When asked
what she meant by “over” her “underwear” she said he “just did it with [her]
shorts on.” 89 It was “kind of burning” and “stinging and it felt on fire.” 90
This happened at the appellant’s house “on the couch” while her mother
was in the adjacent kitchen that was open to the living room via a small foyer
while talking to the appellant’s wife. 91
When asked, “And how did he do it when his hand was on top of your un-
derwear? How did that happen?” BP stated “He was, like, pushing it up, like,
on my underwear.” 92 When asked, “How did his hand get on your under-
wear?” she said, “He went underneath my shorts and started doing—like
pushing it and I didn’t really like it.” 93 Although the video indicates that BP
gestured, it is not possible to see whether BP gestured to indicate that the
appellant put his hand down the top of the front of her shorts or whether she
86 Id. at 10:59:14-10:59:22.
87
Id. at 10:59:22.
88Id. at 10:59:31-10:59:52. PE 35 for identification was not admitted at trial. It is
a transcript of PE 34. PE 35 erroneously indicates that BP answered “Well, he kind
of—sometimes did it under my underwear, and sometimes he did it over my under-
wear,” but a careful review of PE 34 indicates that BP said the words “on” and “over”
her underwear. The interviewer clarified that BP meant that the appellant touched
her shorts when she said he touched her “over” her underwear. See PE 34 at
11:00:08.
89 PE 34 at 11:00:08.
90 Id. at 11:00:20.
91
Id. at 11:00:44.
92
Id. at 11:01:22.
93
Id. at 11:01:46.
21
United States v. Wilson, No. 201800022
mimicked the same “cupping” motion she showed earlier and gestured to in-
dicate that the appellant incidentally touched her underwear while “scooting”
her up by her crotch. 94 The forensic interviewer did not clarify this motion
with BP, and this was not a subject of testimony at trial.
BP told the forensic interviewer that the appellant said, “You’re a good
girl,” while he was making this motion. 95 When asked if the appellant said
anything else, BP said he told her, “You’re my favorite girl.” 96
She identified two parts on the anatomical diagram as her “private parts;”
in the video she appears to point at the vagina and breasts, but this was not
confirmed at trial. She also said she used the word “bottom” to refer to her
private part—while indicating the vagina on the diagram. She was asked to
use a marker to circle the part that the appellant touched with his “hand that
made [her] feel it was inappropriate and he used to scoot [her] up,” at which
point she circled the vagina. 97
When asked to describe what he was doing when he was touching her un-
der the shorts, she said he was “touching my underwear and, like pushing
it.” 98 When asked what the appellant’s hand was doing when he was “pushing
it,” she said “Like pushing it up and it was cupped.” 99 BP again gestured by
making a cup with her hand, fingers facing downward, and pulling her arm
and hand toward her body.
The interviewer told BP that she was going to step out for a minute and
that when she returned, they would finish talking. The interviewer left the
room, conferred with NCIS agents, then returned to ask more questions. Fol-
lowing the interviewer’s return, BP provided the following information.
The forensic interviewer recommenced the interview by asking BP if she
thought there was anything else she should know. BP responded, “Well, I
94 Some of BP’s clothing were admitted at trial. Due to the small size of young
girls’ clothing, BP’s shorts are not so long as to make it impossible that the appellant
may have inadvertently touched her underwear through the opening of the leg of her
shorts while “scooting” her up. See PE 7.
95 PE 34 at 11:01:52.
96 Id. at 11:03:11.
97
Id. at 11:06:28. The drawing was admitted as PE 62.
98
Id. at 11:07:03.
99
Id. at 11:07:12.
22
United States v. Wilson, No. 201800022
don’t really know a lot of stuff—about what happened because [the appellant]
didn’t really do a whole lot of stuff.” 100
BP stated that nothing “wrong” happened “yesterday” on the appellant’s
lap. 101 The interviewer then asked a confusing, compound question which
elicited a different answer than BP previously provided. The interviewer
asked, “Well, when you were talking about the things that he did about sit-
ting on your lap, did you sit on his lap more than one time and he did some-
thing inappropriate?” BP responded, “Maybe like six times.” 102
Although BP did not previously say that the appellant touched her under
the underwear, the interviewer engaged in the following exchange:
Q: Okay. And when you were helping me understand about,
you know, how you told me sometimes he would scoot you
up and you said it would be over your shorts, and then
sometimes he would put his hands in your shorts on the
underwear, was it ever any other place besides on the un-
derwear?
A: I don’t know.
Q: Would his hand go under the underwear?
A: Under, yeah. 103
Q: Okay. Tell me about that.
A: Well, he’s been doing it very strangely and I don’t like it.
Q: . . . what is he doing when he is doing it strangely?
A: Well, no one ever has been doing it strangely—Nobody has
done it before. So he’s been—he’s been pushing it.
Q: Pushing it. Okay. What does he use to push it?
A: Just his hand and his fingers.
Q: Okay.
100 Id. at 11:11:00-11:11:46.
101
Id. at 11:11:19.
102
Id. at 11:11:23-11:11:45.
103BP was playing with Play-Doh during the entire interview. When she an-
swered this question, she did not look up at the interviewer.
23
United States v. Wilson, No. 201800022
A: And he really just does, like, this to go up. 104
Q: Okay. And what does it feel like when he’s going up?
A: It burns and stings and hurts.
Q: Okay. So I want to make sure that I understand. So some-
times it was over the shorts, and sometimes it was over the
underwear. Was it ever under the underwear?
A: Yes.
Q: Yes. Okay. That’s what I need to know. And you said he
would go up, and what part is he going up in?
A: Like, sometimes up in that part.
Q: Up in that part.
A: And sometimes just, like, that part. 105
In the video, BP pointed to two points on the diagram where she said the
appellant “would go up,” but it is not clearly visible what she is pointing at.
During the interviewer’s trial testimony, she stated BP pointed to the “vagi-
nal area” on the anatomical diagram but did not state which second location
BP indicated. 106 BP reconfirmed it happened “about” six times. 107 BP said the
inappropriate things did not happen on the day the appellant gave her a ten-
dollar bill.
4. BP’s March 2017 follow-up interview
In preparation for trial, the government consulted with Dr. E, an expert
in child psychology and child maltreatment. Upon reviewing the interviews
conducted in July 2016, Dr. E believed they “cried out” for a follow-up inter-
view. 108 He recommended follow-up interviews be conducted by a master fo-
rensic interviewer with over 30 years of experience conducting forensic inter-
views. He did so even though he knew it was not ideal to conduct subsequent
interviews so many months after the initial interview or to conduct forensic
104 Video shows BP making a cup with her hand, fingers facing up, with her mid-
dle finger extended slightly upward from her other fingers, then she moves her hand
in an upward gesture.
105 PE 34 at 11:11:44-11:13:25.
106 Record at 1349.
107 PE 34 at 11:13:30.
108 Record at 1927.
24
United States v. Wilson, No. 201800022
interviews after the children have been in therapy. All three P children were
re-interviewed eight months after their initial interview.
BP’s March 2017 interview was not admitted at trial. However, defense
and government expert witnesses relayed some details of BP’s March 2017
interview. The statements were admitted without limiting instruction.
In her March 2017 interview, BP stated that the appellant touched her in
an inappropriate manner only once, and that it happened on 13 July 2016,
the night Dr. A was at the appellant’s house with her family. The master in-
terviewer showed BP photographs Mrs. P provided in order to refresh BP’s
memory of the different times she went to the appellant’s house. After being
shown a photograph depicting the night of the dinner party attended by Dr. A
on 13 July 2016, BP confirmed the abuse happened on that night. 109 She stat-
ed that when the appellant touched her inappropriately, her father was in
the room, as were both her sisters. 110 She did not mention “burning” or “sting-
ing” sensations. 111
5. BP’s testimony at trial
By time of trial, BP was seven years old. The court permitted a modified
courtroom setup and permitted BP’s victims’ legal counsel to sit near her.
Although BP’s 14 July 2016 forensic interview demonstrates that BP is capa-
ble of speaking in an articulate manner, BP was not articulate during her
trial testimony. She provided nonverbal responses—or no response at all—to
many of the trial counsel’s questions. Many of trial counsel’s questions were
leading, and BP’s responses were very short.
BP’s incriminating testimony consisted of:
When asked, “Were there any things that you didn’t like about going to
Mr. Dan’s house?” BP replied, “He touched me somewhere I didn’t like.” 112
With several questions and the aid of a drawing of a female child to write
on, BP stated that the appellant touched her “private part” with his hand. 113
When asked to explain more, she said, “I don’t remember.” 114
109 See id. at 1890. This was elicited during the testimony of the defense expert,
Dr. B.
110 See
id. at 1427.
111
Id. at 1885. This was elicited during direct examination of the defense expert,
Dr. B.
112
Id. at 1139.
25
United States v. Wilson, No. 201800022
When asked if she remembered “anything else about how he did it,” she
said, “Well, I was sitting in his lap, and he was doing that.” 115
When asked how it felt, she said, “It just felt like he was touching me with
his hand on me,” and did not provide any further description. 116
BP described that the appellant would sometimes touch her inside of her
shorts and sometimes outside of her shorts:
Q: When [the appellant] would touch your privacy, did he
sometimes do that inside of your shorts or outside of your
shorts?
A: Inside.
....
Q: You said inside?
A: Yes.
Q: Would he sometimes do it outside the shorts too?
A: Yes. 117
She said he only touched her “private part” once. 118
When asked the leading question, “And did he put his fingers inside of
you in some way?” BP answered, “Yes,” but she stated she did not remember
how it felt. 119 When asked whether the appellant was moving her when that
happened, she answered both “no” and that she could not remember. 120 At
one point, BP apparently became confused and asked trial counsel what he
wanted her to say. 121
113 Id. at 1140.
114
Id.
115 Id. at 1142.
116
Id.
117 Id. at 1144.
118
Id. at 1144.
119
Id.
120 Id.
121 In discussing how she felt when the appellant offered to allow her to drink
from his cup, trial counsel asked, “[BP], I asked you how that made you feel. Do you
remember what you just said? How did that make you feel, [BP]?” to which BP said,
26
United States v. Wilson, No. 201800022
BP testified at trial that the appellant licked her foot, hands, and hair.
However, BP had not made this disclosure during her 14 July 2017 forensic
interview or on the first day of the two-day re-interview in March 2017. She
provided this information to the master interviewer on the second day of her
re-interview in March 2017.
On cross-examination, BP said she had practiced her testimony with trial
counsel twice before trial. 122 BP agreed that she talked to her parents about
her testimony; that her parents told her it was important to get certain as-
pects of her testimony right; and that she thought she did a pretty good job of
relaying the important parts. 123 She could not recall anything the appellant
might have said while he was touching her “privacy.” 124
Also, on cross-examination, the trial defense counsel asked BP about de-
tails of the different times she went to the appellant’s house. She could recall
certain distinguishing events of each visit. When asked when the appellant
touched her private part, she said, “I think it was during the ten-dollar time,”
referring to the last time she saw the appellant, 13 July 2016. 125 BP described
that she would sometimes sit on appellant’s knee, straddling his knee with
her legs like a “horsey.” 126
II. STANDARD FOR FACTUAL SUFFICIENCY
We are mandated to exercise a “unique statutory function” under Article
66(c), UCMJ. United States v. Walters, 58 M.J. 391, 395 (C.A.A.F. 2003). We
must conduct a de novo review and may “affirm only such findings of guilty”
as we find are “correct in law and fact.” Art. 66(c), UCMJ; United States v.
Washington,
57 M.J. 394, 399 (C.A.A.F. 2002). This is an “awesome, plenary,
de novo” power of review.
Walters, 58 M.J. at 395 (citation omitted).
“Do you want me to say. . .” and then trial counsel said, “Can you just say what you
just said to me.”
Id.
122We do not make this observation to suggest that pre-trial witness preparation
is improper. It is not. To the contrary, we note that BP’s inability to recall details at
trial was not the result of a lack of trial preparation.
123 See Record at 1150.
124 Id.
125 Id. at 1151.
126 Id. at 1152.
27
United States v. Wilson, No. 201800022
The test for factual sufficiency is “whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, the members of the [service court of appeals] are themselves
convinced of the accused’s guilt beyond a reasonable doubt.” United States v.
Turner, 25 M.J. 324, 325 (C.M.A. 1987). We must take “a fresh, impartial
look at the evidence,” and we need not give “deference to the decision of the
trial court . . . beyond the admonition in Article 66(c), UCMJ, to take into ac-
count the fact that the trial court saw and heard the witnesses.”
Washington,
57 M.J. at 399. 127
“By ‘reasonable doubt’ is not intended a fanciful or ingenious doubt or con-
jecture, but an honest, conscientious doubt suggested by the material evi-
dence or lack of it in this case. . . . The proof must be such as to exclude not
every hypothesis or possibility of innocence, but every fair and rational hy-
pothesis except that of guilt.” United States v. Loving, 41 M.J. 213, 281
(C.A.A.F. 1994) (affirming propriety of the military judge’s definition of rea-
sonable doubt).
The appellant was convicted of a single specification of sexual abuse of a
child on divers occasions under Article 120b(c). The offense consists of the fol-
lowing elements:
(1) That the appellant committed sexual contact upon a child by touching,
either directly or through the clothing, the genitalia of BP; 128 and
(2) That he did so with intent to gratify his sexual desire. 129
To satisfy the conviction for “divers occasions,” we must be convinced that
the appellant committed this offense on two or more occasions.
Having carefully considered the evidence presented at trial, and taking
into account “the fact that the trial court saw and heard the witnesses,” we
are not convinced of the appellant’s guilt beyond a reasonable doubt. Wash-
ington, 57 M.J. at 399.
127 Although we must take into account that we did not see or hear the witnesses,
we are similarly situated with the members to evaluate two key pieces of evidence:
(1) BP’s video-recorded July 2016 forensic interview; and (2) the audio recording of
the appellant’s statements to Major P during the pretext phone call.
128 The charge sheet does not specify whether the contact with BP’s genitalia was
either direct or through the clothing, nor does it specify what part of the appellant’s
body touched BP.
129 MCM, Part IV, ¶45b.b.(4)(a).
28
United States v. Wilson, No. 201800022
III. DISCUSSION
Carefully evaluating all of BP’s testimony and statements admitted at
trial, we find that BP’s statements were fatally inconsistent and wholly irrec-
oncilable. Based on the evidence, we cannot discern how BP contends the ap-
pellant touched her, when he did so, or how many times she contends the
abuse occurred. Faced with multiple descriptions of possible contacts—only
some of which are consistent with guilt—we cannot find guilt beyond a rea-
sonable doubt based solely on BP’s statements.
We next look to the other evidence admitted at trial for corroboration. We
do not find evidence sufficient to overcome the infirmities in BP’s statements.
There were no witnesses, physical evidence, or admissions of guilt by the ap-
pellant.
We next consider the testimony of several preeminent expert witnesses in
the field of child psychology, maltreatment, and forensic interviewing. Most
were presented by the government. The experts’ testimony assists us in un-
derstanding the limitations in children’s memories and children’s susceptibil-
ity to suggestion. But the expert testimony does nothing to resolve our genu-
ine misgivings with the evidence. Rather, the testimony of the government’s
expert witnesses only further diminishes the reliability of BP’s forensic inter-
view and trial testimony.
We examine these three classes of evidence in turn below.
A. Fatal and Irreconcilable Inconsistencies in BP’s Statements
BP testified at trial, and portions of three out-of-court statements were
admitted. The four accounts are inconsistent in significant ways and cannot
all be true.
First, we must contrast BP’s incriminating statements with her first two
statements about the appellant, which were both adamant denials. On 13 Ju-
ly 2016, when Mrs. P was questioning an upset BP, BP twice denied that the
appellant had ever touched her inappropriately. Those two denials cannot
reasonably be reconciled with BP’s later testimony at trial, answering “Yes”
to the question whether the appellant “put his fingers inside of [her] in some
way.” 130
Second, BP’s statements are contradictory about the number of times the
abuse occurred. At trial, and in her March 2017 forensic re-interview, BP said
130 Record at 1144.
29
United States v. Wilson, No. 201800022
the appellant only touched her inappropriately once. During her 14 July 2016
forensic interview, when directly asked how many times the abuse occurred,
she said it happened only once. When asked the same question a third time,
BP guessed it happened six times. 131 And we cannot be clear, from the com-
pound question that was asked, whether BP intended to state that she sat on
the appellant’s lap six times or whether he inappropriately touched her six
times. As further described below, all experts agreed that the question was so
poorly worded as to make it impossible to know, with certainty, what BP was
intending to say. 132 The forensic interviewer did not clarify the inconsistency
between BP’s statements on this important point. It cannot be true that the
appellant touched BP inappropriately only one time but also about six times.
Third, BP’s statements do not clearly establish when the abuse occurred.
BP testified at trial that the appellant touched her only once, and it hap-
pened the night of her disclosure. She made the same statement in her March
2017 forensic interview—stating that her father and sisters were in the room
at the time. Establishing when BP says the abuse occurred is important be-
cause it is not reasonable to believe that the appellant touched BP inappro-
priately on 13 July 2016. The government essentially conceded it could not
prove the act occurred that night. 133 In her 14 July 2016 forensic interview,
BP made multiple conflicting statements. Twice, she said the appellant first
did “inappropriate” things to her on the night that the appellant asked Mrs. P
to sit on his lap, which happened on 13 July 2016. However, she also said no
abuse happened “yesterday,” and she said he did “inappropriate things”
“maybe a few days ago” or “[m]aybe the second day we went to . . . his house
or the first.” 134 When asked a confusing question about when the appellant
131See PE 34 at 11:11:23-11:11:45. Even the government’s expert, Dr. E, opined
that BP was just estimating when she said the abuse happened six times, and that
answer should not be taken “with a literal sense.” Record at 1410.
132The interviewer asked, “Well, when you were talking about the things that he
did about sitting on your lap, did you sit on his lap more than one time and he did
something inappropriate?” to which BP responded, “Maybe like six times.”
133 In arguing that it was necessary to admit BP’s July 2016 forensic interview,
trial counsel stated that it would be a “significant impediment” to the government’s
case if it was “stuck” with BP’s in-court testimony that the offense happened on “dis-
closure night.” Trial counsel stated the offense could have happened on either 8 July
2016 (“trouble at the barracks” night) or 12 July 2016 (“night before disclosure”).
Record at 1310.
134 BP was never alone with the appellant the first time the P family went to the
appellant’s house. No one went inside the house.
30
United States v. Wilson, No. 201800022
gave her a ten-dollar bill, “Was this—is this after you had sat on his lap and
he was doing inappropriate things or was it before or something else?” BP
responded, “It was a different day.” Several government expert witnesses
agreed that it was not clear from BP’s 14 July 2016 forensic interview wheth-
er she was alleging abuse occurred on 13 July 2016 or on a different day. 135
Fourth, BP’s statements are not consistent about the type of contact she
alleged the appellant made with her body. Most notably, although Mrs. P tes-
tified that BP told her the appellant rubbed her vaginal area, BP never made
that disclosure to the forensic interviewer on 14 July 2016, just hours later.
She did not make that allegation in March 2017, nor did she make such a
claim at trial. She has variously described that the appellant repositioned her
up his chest, “pushed it,” was “doing it strangely,” making the most serious
allegation at trial—agreeing that the appellant “put his fingers inside of her
in some way.”
On every important aspect of the alleged offense—if abuse happened;
when it happened; how many times it happened; and what happened—BP
was inconsistent in non-trivial ways that cannot solely be attributed to her
young age. BP’s statements are the only evidence of the appellant’s guilt.
Based on the four major inconsistencies alone, we cannot be convinced be-
yond a reasonable doubt of the appellant’s guilt. But even if we look at each
of BP’s statements separately, we still cannot discern a clear narrative of
what abuse BP alleges the appellant committed.
B. No Clear Narrative Consistent with Guilt
1. Testimony at trial
At trial, BP testified that the appellant touched her in an inappropriate
manner only once, on 13 July 2016. BP could provide no details of the alleged
abuse. She answered “Yes” to the question “And did he put his fingers inside
of you in some way?” BP’s simple assent, with no accompanying description of
the alleged act, in no way convinces us that BP understood the question; nor
does it provide any clarity of what BP intended to say happened.
135 Specifically, the forensic interviewer testified that she believed BP was de-
scribing 13 July, but the government’s expert, Dr. E, stated that he interpreted BP’s
interview to state that the abuse occurred some other time. See Record at 1412-13.
The government’s other expert, Dr. S, agreed that there was a “fair amount of confu-
sion” about the number of times BP contended abuse occurred and when she con-
tended it occurred. Id. at 1832.
31
United States v. Wilson, No. 201800022
Aside from this one-word answer, during her trial testimony, BP merely
said that the appellant touched her somewhere that she “didn’t like” and that
he touched her “private part” while she was sitting on his lap. Although BP
testified that the appellant touched her, she did not provide any accompany-
ing description from which we could determine that the appellant made the
contact in a wrongful manner, namely with the intent to gratify his sexual
desires. We do not find that BP’s testimony at trial proves the appellant’s
guilt beyond a reasonable doubt.
Evidence of the appellant’s guilt, if any can be found, must therefore be
derived from BP’s initial statements to Mrs. P or her 14 July 2016 forensic
interview.
2. Statements to Mrs. P
After twice denying that the appellant touched her private area, BP told
her mother that:
(1) “[W]hen [the appellant] goes to pick [her] up and scoot [her] up higher
on his chest he doesn’t pick [her] up like [Mrs. P] and [Major P] do by [her]
arms. He puts his hands between [her] legs and he pushes really hard.” 136
(2) Mrs. P also testified that BP said the appellant rubbed her vaginal ar-
ea. 137
3. Statements in BP’s 14 July 2016 forensic interview
The July 2016 forensic interview can be broken into three parts. The in-
terviewer spent about 13 minutes building rapport with BP and explaining
the interview process. Then she asked BP why she was there and spent 15
minutes discussing BP’s allegation. Then the interviewer told BP that they
would take a break and then they were “going to finish [their] talk,” at which
point the forensic interviewer left the room to consult NCIS agents. 138 She
returned to the room and asked substantive questions for about eight more
minutes.
Before the interviewer left the room, BP stated that the appellant used a
“cupped” hand to touch her private part to scoot her up while she was on his
knee. She described this as “pushing it” and “it was cupped.” BP twice
demonstrated a cupping and pulling motion with her fingers facing down in
136 Id. at 1086.
137 When interviewed the next day, BP did not make this disclosure.
138 See PE 34 at 11:07:30.
32
United States v. Wilson, No. 201800022
which she pulled her arm toward her body. She described that the appellant
touched her shorts and touched her underwear.
Then the forensic interviewer left the room to consult the NCIS agent.
Upon the interviewer’s return, the following exchange occurred:
Q: So, [BP], you’ve helped me understand so much. I just have
a couple more questions for you. Okay? Now, is there any-
thing else that you can think of that you think is important
for me to know what happened?
A: Well, I don’t really know a lot of stuff—
Q: I think you know a whole lot of stuff. I think you’re really
smart.
A: —about what happened because he didn’t really do a whole
lot of stuff. 139
At this point, the forensic interviewer repeated some of her earlier ques-
tions and BP responded differently than she did before. Although BP previ-
ously stated the appellant touched her shorts and her underwear, 140 the in-
terviewer asked again, “was it ever any other place besides on the under-
wear.” 141 BP responded, “I don’t know.” After receiving this response, she
asked directly, “Would his hand go under the underwear?” and BP said “Un-
der, yeah” without looking up from the Play-Doh she was playing with and
without making eye contact with the forensic interviewer. She did nothing to
indicate that she understood the importance of this answer or the incon-
sistency of this answer when compared to her prior statements. She repeated
that he was “pushing it” and “doing it strangely.” When asked again to de-
scribe what she meant by “pushing it,” BP gave a different hand gesture than
the one she mimicked twice before. She then demonstrated in an upward mo-
tion with her middle finger extended slightly above her other fingers. The in-
terviewer did not ask BP why she made a different hand gesture. We cannot
know whether BP intended to say that the appellant touched her in both
139 See id. at 10:10:46-11:11:00. The defense expert cited this as an example of the
forensic interviewer “pushing [BP] beyond the capacity of her memory,” which was a
“very suggestive way of getting the child to come up with something else.” Record at
1880.
140 As noted above, it was already a suggestible question for the forensic inter-
viewer to be the first person to suggest that the appellant touched BP inside her
clothing.
141 PE 34 at 11:12:00.
33
United States v. Wilson, No. 201800022
ways she demonstrated or whether she told a different version of events
when the interviewer continued to ask the same questions of her.
Although the forensic interviewer repeatedly asked BP to provide more
detail to explain what happened, BP did not. Because of the forensic inter-
viewer’s inability to elicit a detailed narrative from BP, with inconsistencies
explained, we cannot understand what BP was trying to describe. Even with
BP’s gestures—only some of which were clearly indicated on the video—we
are left wondering what BP meant by the quizzical descriptions such as
“pushing it,” “doing it strangely,” and “go up.”
The only clear and consistent description BP has given with any level of
detail is one that is not consistent with guilt beyond a reasonable doubt. BP
explained to both her mother and to the forensic interviewer that the appel-
lant used his hand to touch BP’s crotch area to reposition her upon his knee,
using her “parts” to “scoot [her] up.” 142 The cupping gesture she made twice is
consistent with the way the appellant might pull her up by her crotch while
she was sitting or horse-playing on his knee or chest, which could induce fric-
tion by the rubbing of her clothes and cause the “burning” and “stinging” sen-
sation. 143 Photographs admitted at trial depict the appellant’s height and
large stature, as compared to BP, a very small child. Based on their size dif-
ferential, it is entirely possible that the appellant could readjust BP by her
upper thigh or crotch area.
This contact is inconsistent with the specific intent to gratify sexual de-
sires necessary to prove guilt beyond a reasonable doubt. If the appellant in-
cidentally touched BP’s underwear while repositioning her, we cannot be con-
vinced that such contact was intentional. The government argued that a man
“in his fifties” could not possibly touch the “vaginal area” of a six-year old
child in any manner that would be “innocent.” 144 Though such an act may be
ill-advised, we cannot ignore the second element of the offense. We are not
convinced that the mere act of “scooting” BP up his knee proves that the ap-
pellant acted with the intent to gratify his sexual desires.
At trial and in her March 2017 forensic interview, BP said the appellant
inappropriately touched her once, on 13 July 2016—once stating that this
happened with her father and sisters in the room. Although we cannot rea-
sonably believe that the appellant would touch BP in an indecent manner in
142 PE 34 at 10:58:56.
143 Id. at 10:59:22, 11:00:18.
144 Record at 2041.
34
United States v. Wilson, No. 201800022
the presence of witnesses, it is entirely possible that the appellant may have
repositioned BP in the way she described while others were present.
C. Expert Testimony Further Erodes Confidence in BP’s Statements
The government presented the testimony of the forensic interviewer who
conducted the P children’s July 2016 interviews. Although she was not ten-
dered as an expert, both sides asked the forensic interviewer questions that
drew upon her specialized knowledge. Both the government and defense
called experts in forensic interview techniques and suggestibility to evaluate
BP’s July 2016 forensic interview. The government’s first expert, Dr. E, cre-
ated the forensic interview methodology that was used to interview BP in Ju-
ly 2016. He and his team trained the forensic interviewer who interviewed
BP in July 2016. The government also called Dr. S, another expert in child
forensic interviews. The defense presented the testimony of Dr. B, as an ex-
pert in forensic psychology, child abuse and maltreatment, and child forensic
interviewing.
The experts’ testimony focused on the concepts of suggestibility of chil-
dren, appropriate methods of conducting forensic interviews to minimize sug-
gestibility, and analysis of the reliability of BP’s 14 July 2016 forensic inter-
view. We find the following points assist us in our analysis.
1. Suggestibility of children
All of the experts acknowledged that children are susceptible to sugges-
tion and that they are capable of believing events happened that did not hap-
pen. But suggestibility can be more subtle than outright implantation of false
memories. Forensic interviewers are specially trained in interview methods
designed to minimize the risk of suggestibility and to encourage children to
describe what happened in their own words.
Even a trained interviewer can inadvertently affect a child’s memory be-
cause children often view adults as authority figures and seek their approval.
For example, a questioner can “selectively reinforce” aspects of a child’s ac-
count, by reacting favorably to some of the child’s statements but not oth-
ers. 145
145 Id. at 1297. The defense expert Dr. B testified the forensic interviewer selec-
tively reinforced BP’s answer when she asked BP whether the appellant touched her
under the underwear, BP said yes, then the interviewer said, “That’s what I needed
to know.”
35
United States v. Wilson, No. 201800022
If an interviewer repeatedly asks the same questions, this can “increase
the probability of the child acquiescing and answering suggestible ques-
tions.” 146 Dr. S described that asking the child the same questions repeatedly
can “push[ ] the child into compliance, they give you any answer,” just to an-
swer the question. 147 The defense expert testified that repeated questions can
cause a child to think, “I must have given the wrong answer because this
question has been asked three times . . . . So now I am going to acquiesce,”
and the child gives the answer they think the interviewer must want to
hear. 148
The form of the question can affect the reliability of the child’s answer. In-
terviewers should, if at all possible, refrain from using leading questions,
which suggest an answer. And they should minimize their use of suggestive
questions, which supply new information beyond what the child has already
provided. An interviewer should avoid using confusing and compound ques-
tions.
Choice questions, such as yes-or-no questions and multiple choice ques-
tions can be suggestive because children want to have an answer. 149 These
questions can encourage the child to pick one answer or to guess, merely re-
sponding with one of the choices offered. 150 Children possibly lack under-
standing of the “significance of the different choices.” 151
Children may be more susceptible to suggestion if a highly emotional
questioner repeats questions “during an emotional period.” 152 It is “possible”
that a child might “change their answer” if a child twice denied an answer
but the emotional questioner asked the same question a third time. 153 Chil-
dren may be more likely to adopt a term their parents used during an envi-
ronment of “heated, emotional” questioning. 154
146 Id. at 1873.
147Id. 1831. Dr. S provided the caveat that the child may or may not provide the
answer they assume the interviewer wants to hear.
148
Id. at 1877.
149
Id. at 1829.
150
Id. at 1829.
151
Id.
152 Id. at 1363.
153
Id. at 1363.
154
Id. at 1363.
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United States v. Wilson, No. 201800022
It can be a significant issue that children have been “interviewed” by their
parents prior to presenting for a forensic interview. 155 Because the parents
are not trained in forensic interview techniques, they can inadvertently cause
subsequent forensic interviews of the child to be tainted if the child was al-
ready subject to suggestion by the parent. 156 Therefore, it is important for the
forensic interviewer to ask what conversations the child had with other peo-
ple before the forensic interview.
Children are also susceptible to “stereotype induction,” which refers to
teaching a child to characterize an individual in a negative light. Saying that
someone is “bad” or that “we don’t trust them” are examples of negative ste-
reotyping. 157 If “very powerful,” “forceful,” or “repeated” stereotypes are in-
duced, they can skew perception of memories. 158
To the extent that children attempt to please adult authority figures, they
are suggestible. “[C]hildren do lie,” sometimes in an attempt to be “complicit”
with what they think an authority figure wants, rather than in an effort to be
“deceitful.” 159
2. Characteristics of a good forensic interview
A good forensic interviewer will ask questions to elicit a detailed narra-
tive, such as asking a child to “tell me about that,” because the detailed re-
sponse provides reassurance that the child is relaying a true memory. 160 If a
child provides “idiosyncratic” type details or “sensorial labels or descriptions
of their experience” in age-appropriate words that were not suggested by the
interviewer, these statements are helpful in evaluating the child’s account. 161
A “free narrative” from the child is the “gold standard in trying to get re-
liable information.” 162 It is important to let the children use their own
words. 163
155 Id. at 1420-22.
156 See
id. at 1421.
157
Id. at 1296.
158
Id. at 1296, 1304.
159
Id. at 1296-97.
160
Id. at 1290.
161
Id. at 1391, 1844.
162
Id. at 1874.
163
Id. at 1288.
37
United States v. Wilson, No. 201800022
3. Limitations of children’s memory
It is difficult for young children to accurately recount dates or the number
of times an event took place. It is best to simply ask whether an event hap-
pened once or more than once. 164
Young children tend to recount “scripted” memories in which they “aver-
age[ ]” together different memories of similar events, describing what would
“usually” happen. 165 In such cases, it is important for an interviewer to elicit
descriptive, “episodic” memories, asking for the details of each discrete event.
Unrehearsed memories tend to fade, as do memories of “painful” events,
which children may avoid thinking about. 166
Trauma can affect children’s memories, through repression (unconscious
forgetting) or suppression (consciously deciding not to think about the event).
Although it is not reasonable to expect “identical consistency” between the
child’s accounts, the large narrative details should remain consistent.
4. Children’s common reactions to abuse and disclosure patterns
The government’s expert, Dr. E, stated that children often make delayed
and incremental disclosures of abuse. Children may not initially understand
that they are being abused, particularly if the offender begins the abuse in a
manner that is easily confused with innocent behavior or if the offender en-
gaged in “grooming” behavior. It is not uncommon for children to maintain a
friendly relationship with the abuser. Children may also make phased disclo-
sures of abuse. This is because children may want to “minimize their expo-
sure” or tell what they perceive to be the “less embarrassing parts” first. 167
Children’s memories may be affected by trauma, by unconscious repres-
sion or conscious suppression. However, “rehearsal,” or thinking about the
event, can promote retention of the memory. 168
5. The forensic interviewer’s impressions of BP’s interview
The forensic interviewer testified that she tried to elicit a narrative from
BP about what the appellant did, but BP did not provide one. BP just replied,
164 See id. at 1392.
165
Id. at 1284.
166
Id. at 1285.
167
Id. at 1424.
168
Id. at 1406.
38
United States v. Wilson, No. 201800022
“That’s about it.” 169 However, BP had shown herself to be “very capable of
giving a full narrative” when she was talking about mundane past events
during the rapport-building phase of the interview. 170
The forensic interviewer testified that she believed BP was describing
events that took place the day before the interview, on 13 July 2016, and she
focused her interview questions around that date. Then, after consulting with
NCIS agents, she asked BP a direct question whether something “inappro-
priate” happened yesterday, and BP said no. The interviewer testified she
then became confused about what day BP said the abuse occurred.
6. Expert assessments of BP’s July 2016 forensic interview
The defense expert and both government experts expressed some concerns
with the questions the forensic interviewer asked BP in July 2016. We do not
critique the forensic interviewer’s methods for the purpose of being critical.
Rather, BP’s statements in the 14 July 2016 interview are the most detailed
and incriminating statements she provided. No other statements, standing
alone or considered together, reliably support guilt.
a. Doctor E’s assessment
Dr. E, a government expert witness, stated the forensic interviewer con-
ducted an interview that was “not perfect,” but “solid” and “defensible.” 171
Dr. E stated the forensic interviewer did not follow the interview protocol
when she did not have BP “promise” to tell the truth. 172 Empirical data shows
that getting a promise from the interview subject “help[s] with the accuracy
of the interviews.” 173 The forensic interviewer failed to follow Dr. E’s protocol
in another regard because she did not describe examples of guessing for BP.
Dr. E’s protocol teaches that, when interviewing children under the age of 10,
the interviewer should provide examples of guessing so that the interviewer
knows the child understands the concept of guessing and agrees to avoid it.
Based on his evaluation of BP’s interviews, Dr. E noted that BP was “given to
169 Id. at 1373.
170
Id. at 1379.
171
Id. at 1390.
172Id. at 1402. The interviewer said, “So when we’re in here talking today it’s just
really important that everything we talk about be things that are true and things
that really happened. So how does that sound?” and BP responded, “Good.” PE 34 at
10:48:40-10:48:52.
173 Record at 1402.
39
United States v. Wilson, No. 201800022
guessing,” although he did not believe she acquiesced to any of the forensic
examiner’s yes-or-no questions. 174
Although Dr. E opined that the forensic interviewer did not ask any “in-
appropriately suggestive questions,” he agreed that many of her questions
were suggestive. For example, Dr. E testified that it was a suggestive ques-
tion for the interviewer to ask whether the appellant touched BP over or un-
der the clothes, since BP never said anything about an under-the-clothes
touch before the interviewer asked the question.
Dr. E testified that there were many instances when the interviewer
should have followed up with additional questions, but she did not, which ne-
cessitated a second interview. Dr. E assessed that the interviewer gave up too
quickly in pursuing a fact-rich narrative from BP about the instances of in-
appropriate touching. He opined that BP proved she is articulate and capable
of providing a detailed narrative, but the interviewer accepted BP’s terse re-
sponses and moved on. 175
According to Dr. E, when BP used unusual words for a six-year-old’s vo-
cabulary, such as “scooping” and “cupping,” the interviewer should have fol-
lowed up and asked where BP learned that word. In March 2017, Mrs. P told
Dr. E’s team that she might have been the one who “introduced” the word
“cupping” to BP. 176 Dr. E acknowledged that it is possible that Mrs. P intro-
duced more words to BP.
Dr. E also noted that the interviewer never asked BP to clarify her incon-
sistent statements, which is a common and accepted practice. She asked sev-
eral compound and confusing questions. She “missed” an important oppor-
tunity to invite BP to describe in detail the instance of abuse she remembered
the most when BP responded, “[S]ix times” to the interviewer asking how
many times she sat on the appellant’s lap and he did something inappropri-
ate. 177
Dr. E agreed that in the July 2016 interview, BP was inconsistent about
the number of times the inappropriate touching occurred and about the night
174 Id. at 1409.
175“Is there any reason, based off of the orientation phase, that you would be con-
cerned that [BP] could not give a full narrative during her interview?” to which Dr. E
responded, “No. Not based on the early parts of the interview.”
Id. at 1410.
176
Id. at 1411.
177
Id. at 1419.
40
United States v. Wilson, No. 201800022
the abuse happened. 178 Although some of BP’s inconsistencies could potential-
ly be attributed to the interviewer’s poor questioning technique, not all of BP
inconsistencies were the result of the poor technique.
Dr. E also opined that it is unlikely that when BP said “six times” in re-
sponse to the forensic interviewer’s compound question, that the event actual-
ly happened six times. Dr. E interprets that statement as “more than one” or
a “bunch” of times. 179
Dr. E stated that although BP twice said the abuse happened only one
time, Dr. E believes that BP’s grammar “almost screams” that it happened
more than one time. 180 But he agrees that not all experts would agree with
his interpretation.
b. Doctor S’s assessment
The government’s second expert in the field, Dr. S, described the inter-
view of BP as “solid” on direct and “good enough” on cross-examination. 181
Dr. S believed that, although the interviewer asked suggestive questions,
none were “unacceptably suggestive.” 182 Dr. S testified that she “would have
liked to have seen fewer” multiple choice questions used. 183
Dr. S stated the interviewer’s question, “Was it over your clothes or under
your clothes or something else?” was a “less than ideal question” because the
interviewer was the first person to introduce the idea that the appellant may
have touched BP underneath her clothing. 184
178 See id. at 1417.
179
Id. at 1410.
180
Id. at 1419. He described that BP used the “present perfect continuous tense,”
which suggests she intended to say that was either “recently completed or still going
on.”
Id. at 1391.
181
Id. at 1819, 1836. Her criteria were based on whether the interviewer went
through the three-step process of (1) building rapport; (2) training the child to pro-
vide a full narrative of a “non-abusive, every day, ordinary event . . . from beginning
to end;” and (3) discussing the allegation. We are not concerned whether the inter-
viewer’s methodology was ideal; rather we are concerned whether we can affirm the
appellant’s guilt beyond a reasonable doubt based on the evidence presented at trial,
including the statements BP made during the July 2016 interview.
Id. at 1817.
182
Id. at 1844.
183
Id. at 1832.
184
Id. at 1827-28.
41
United States v. Wilson, No. 201800022
Dr. S opined that the word “inappropriate” could be a word the child
learned from their parents.
Dr. S noted that the interviewer asked repeated questions about whether
the appellant touched BP under the underwear—asking about this at least
three or four times. Dr. S believes that one of the most problematic questions
was the interviewer’s question “over or under your clothes or something else”
because it did not “help [BP] clearly communicate” what happened. 185
Dr. S is unsure whether BP stated in her 14 July 2016 forensic interview
that the inappropriate touching occurred once or more than once. And she
agrees there is a “fair amount of confusion” as to when the alleged abuse took
place. She does not understand what BP meant by the word “pushing.” 186
Dr. S noted that the interviewer did not ask gently challenging questions
such as “Help me understand,” or “I’m confused” to explore BP’s inconsistent
statements. This is a common practice in forensic interviews to clear up ap-
parent inconsistencies and was not done with BP.
Dr. S assessed that BP was a “reluctant child” in the interview. 187 A child
might be reluctant because they are in an “unfamiliar setting,” they do not
know how to talk about the unfamiliar topic, or they could be afraid, con-
fused, or lying.
c. Doctor B’s assessment
The defense expert, Dr. B, was more critical of the forensic interview.
Dr. B opined that BP acquiesced to repeated questioning about how many
times the appellant touched her. After answering that it was only one time on
multiple occasions, Dr. B stated that BP likely “guesstimate[d]” when she
said it happened six times. 188 She stated the interviewer exacerbated this er-
ror by not following up on the inconsistency between repeated statements
that it happened once and then stating it happened six times.
Dr. B further opined that the interviewer asked repeated questions
whether the appellant touched BP under her underwear when BP repeatedly
said it was over her underwear or over her shorts. She opined this repeated
questioning caused BP to acquiesce to the suggestion that the contact was
185 Id. at 1835.
186
Id. at 1832.
187
Id. at 1836.
188
Id. at 1878.
42
United States v. Wilson, No. 201800022
under the underwear. 189 BP first stated the contact was over her underwear.
Then she stated she did not know whether the appellant ever put his hand
somewhere other than on her shorts or her underwear. When directly asked
again a suggestible question, “Would his hand go under the underwear?” she
said, “Under, yeah,” but failed to make eye contact and could not provide any
“responsive answers” when the interviewer said, “Tell me about that.” 190
Then the interviewer selectively reinforced that this was the answer the in-
terviewer wanted—and which would result in a cessation of questioning—by
saying, “That’s what I needed to know.” 191
Dr. B criticized this question as a very confusing “forced-choice” question,
“Was this—is this after you had sat on his lap and he was doing inappropri-
ate things or was it before or something else?” to which BP responded that it
was “a different day.” 192
Dr. B assessed that BP is a bright young child with good language skills.
She demonstrated the ability to recall time and sequence when describing
that morning’s events. But her language was “very impoverished” when dis-
cussing the abuse. 193 Dr. B testified that the interviewer “pushed [BP] beyond
the capacity of her memory” when BP said, “I don’t have anything else,” and
the interviewer kept insisting that BP “know[s] a lot of stuff.” Dr. B testified
that this was a “very suggestive way of getting the child to come up with
something else.” 194
7. Experts’ assessment of the suggestibility of parental questioning of BP
The forensic interviewer never asked BP about any discussions she had
with her parents before her interview. The expert witnesses testified that it is
important for forensic interviewers to elicit this information.
Dr. E testified that BP’s conversation with Mrs. P in the appellant’s
kitchen and bathroom, in which she initially disclosed abuse, was not “overly
suggestive.” 195 Dr. E opined that Mrs. P was not the first person to “suggest
189 Id. at 1885.
190 PE 34 at 11:11-11:12; Record at 1886.
191 Record at 1886.
192 PE 34 at 11:15; Record at 1887.
193 Record at 1880.
194
Id. at 1880.
195
Id. at 1920.
43
United States v. Wilson, No. 201800022
touching by” the appellant—that BP was the first to suggest touching. 196
However, he did not state the basis for his opinion. We believe the weight of
this opinion by Dr. E depends on whether the finder of fact believes Mrs. P’s
in-court testimony, which was impeached by a prior inconsistent state-
ment. 197 Mrs. P testified she only talked to BP about not showing private ar-
eas, and she adamantly did not recall using the word “touch,” as she had de-
scribed in her written statement to NCIS. Dr. E was not asked whether he
relied on Mrs. P’s NCIS statement.
At trial, defense counsel asked Mrs. P and Major P whether they had a
family meeting with their three daughters and discussed BP’s allegation in
detail before the three children were interviewed. Both Mrs. P and Major P
insisted that they did not discuss the allegation in detail but they stated they
explained to the children—in generalities—why they had to be forensically
interviewed. When defense counsel asked whether this happened on the
night of 13 July 2016 in SP’s bedroom, both parents stated they had no recol-
lection when or where this conversation took place.
When Dr. E’s team interviewed all three of the P children in March 2017,
they learned that Mrs. P gathered all three children together, asked them all
questions, and had a “family discussion” on the night of 13 July 2016. 198 This
discussion pre-dated BP’s forensic interview, and the details of this discus-
sion were not revealed at trial. 199
The defense expert, Dr. B, reinforced that it is important to “understand
all previous conversations to the interview,” including asking about the par-
ent’s reactions to the child’s disclosure. 200 This was especially important in
this case because BP witnessed her mother loudly cursing at the appellant
and saying that she wanted to stab him with a knife the night before she was
first interviewed. Dr. B testified it was also especially important to ask about
the pre-interview conversation in this case because BP’s initial disclosure fol-
lowed two specific denials of improper contact. Dr. B further opined that
196 Id. at 1921.
197 This prior inconsistent statement could not be considered by the fact-finder for
its truth but only in determining whether to believe Mrs. P’s testimony.
198
Id. at 1421.
199Major P and Mrs. P consistently maintained that they could not recall where
or when they had a discussion with their children, but they insisted they did not dis-
cuss BP’s allegation in detail.
200 Record at 1874.
44
United States v. Wilson, No. 201800022
Mrs. P’s negative view of the appellant—which was apparent in her testimo-
ny at trial—could result in suggestibility of BP. 201
8. Negative stereotype induction and conflation of events
Dr. E stated that Mrs. P’s angry statement that she wanted to stab the
appellant with a knife is the type of statement that could cause negative ste-
reotype induction in her children.
Dr. E opined that disclosure night was a “major trauma” to the P family,
especially because the children witnessed their mother “upset, storming out,”
and saw the police came to their house. As a result, Dr. E believes the three
children “conflated everything to that night because it was such a major, ma-
jor event.” 202 He offered this as one explanation why BP testified at trial, con-
sistent with her March 2017 interview, that the appellant touched her on 13
July 2016. Dr. E agreed this was just his opinion and other experts might not
agree.
Dr. B did not believe BP was conflating all events together as having
happened on 13 July 2016 because BP is “very bright” and “articulate” and
because she previously showed she was able to “give[ ] a sequence of events of
what happened.” 203
9. Weighing all of the evidence in light of expert testimony
We cannot discount the possibility that BP acquiesced to repeat question-
ing. During the first forensic interview, BP was recounting events that had
happened less than 24 hours earlier. Nevertheless, BP’s description of her
initial disclosure to her mother was very different from Mrs. P’s descriptions.
The most incriminating responses—that the appellant touched her six times;
whether contact was under her underwear; and BP’s middle finger gesture to
demonstrate what “pushing it” meant—came from BP only after she was
asked the same questions three times. BP’s statement that the appellant
touched her under the clothes was made in response to a suggestive question
and came after she previously stated the appellant touched her on her shorts
and underwear and that she did not know if he touched her anywhere else.
201 On cross-examination, the government established that BP resisted sugges-
tion when her mother asked if the appellant asked her to touch his privacy or put his
mouth near BP’s privacy, and BP answered no to both questions.
202 Id. at 1427.
203
Id. at 1895.
45
United States v. Wilson, No. 201800022
Although Dr. E stated that it is common for children to make phased dis-
closures, we cannot find beyond a reasonable doubt that this was the cause of
BP’s inconsistent statements. Even her later disclosures lacked the type of
rich, narrative detail the experts sought—and that the experts said BP was
capable of giving. We do not find significant barriers to disclosure in this
case. BP had supportive parents who taught her about her body and to tell
them if anyone touched her private areas. The appellant was not a close fami-
ly relative to whom BP owed substantial loyalty.
We cannot rule out the possibility that BP may have acquiesced to re-
peated, suggestive questioning and changed her answers when her first an-
swers did not result in a cessation of questioning. 204
We are persuaded by Dr. E’s testimony that children have difficulty stat-
ing the number of occurrences and that the only reliable gauges would be
“once” or “more than once.” However, given BP’s inability to provide a de-
scriptive narrative in the supportive environment of the forensic interview
room, and her later inconsistent statements, we cannot be convinced abuse
occurred even once. Dr. E testified that BP’s grammar suggests she was in-
tending to communicate that the abuse happened on multiple occasions, and
he testified that her grammar was consistent with her relaying a scripted
memory of repeated events. However, in light of all of the evidence in this
case, we cannot find guilt beyond a reasonable doubt based on an expert’s in-
terpretation of a six-year-old BP’s choice of grammar, no matter how highly
qualified that expert might be. 205
At trial and in her March 2017 interview, BP stated abuse happened only
once—on 13 July 2016. And before her disclosure, she twice denied the appel-
lant touched her. We cannot discount the possibility that BP meant what she
said at trial—that the contact happened once on 13 July 2016.
204We find it notable that BP provided changed information after the forensic in-
terviewer left and then returned to the interview room. It is not fanciful to conclude
that BP may have believed, as experts suggested, that she could only cease the dis-
comfort of the interview by providing the answers she thought the interviewer want-
ed. When the interviewer stated they were almost finished, then returned with more
questions, it is reasonable that BP may have believed she needed to provide more
incriminating answers before the interviewer would decide, as she stated, “That’s
what I needed to know.”
205 Dr. E agreed that other experts might disagree with his interpretation on this
point.
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United States v. Wilson, No. 201800022
We also find possible suggestion in BP’s 14 July 2016 forensic interview.
Dr. E testified that Mrs. P conceded that BP may have learned the word
“cupped” from her. BP used that word multiple times during her 14 July 2016
interview—less than 24 hours after her disclosure. She used the word “inap-
propriate” four times, making conclusory statements that the appellant did
“inappropriate things” to her. BP’s pronunciation of “inappropriate” does not
suggest that she regularly used this word.
It is completely understandable that Major and Mrs. P would talk to their
children in detail to find out whether other abuse occurred, as the P children
said they did. But the government’s own experts testified that it is important
for a forensic interviewer to ask about a child’s prior conversations about the
abuse. The interviewer did not do this, foreclosing the ability to determine
whether BP’s statements were, even innocently and inadvertently, affected
by conversations with her parents.
We cannot discount the possibility that BP exhibited negative stereotype
induction. By the time of her forensic interview, mid-day on 14 July 2016, BP
already knew that her mother was no longer friends with Mrs. W, and she
stated she no longer liked the appellant. 206 The only intervening factors be-
tween her friendly play with the appellant on 13 July 2016 and her changed
feelings on 14 July 2016 were any conversations she had with her parents
and her reaction to what happened on “disclosure night.”
There was certainly evidence that BP’s sisters exhibited negative stereo-
type induction. At trial, MP stated that she “didn’t like [the appellant], not
one bit,” and that she and SP “never thought he was a good man.” 207 He never
made her laugh, and if she did play any games with him, “they weren’t
fun.” 208 Those statements are belied by other evidence presented at trial. And
MP testified that her mother cries “a lot” and stated that her parents told her
not to trust the appellant and that he is in jail. 209
206 Describing Mrs. W, BP said, “And now they’re not really friends since her
husband did that.” PE 34 at 11:00:44. About the appellant, she said, “And then I fig-
ured this happened and then I didn’t really want to be his best buddy anymore.” Id.
at 11:15:49.
207 Record at 1170.
208
Id. at 1171.
209
Id. at 1168-69.
47
United States v. Wilson, No. 201800022
Carefully considering the voluminous expert testimony presented in this
case, and interpreting BP’s statements in light of the experts’ opinions, we
cannot be convinced of the appellant’s guilt.
D. No Corroborating Evidence
1. The appellant’s statements to Major P
a. Content of statements
On 14 July 2016, Major P participated in a “controlled call” with the ap-
pellant, and NCIS agents recorded the call. 210 Prior to the controlled call, the
P family’s last interaction with the appellant was when Mrs. P screamed at
the appellant as the family rushed out of his house.
Major P told the appellant, “Last night, [BP] disclosed to [Mrs. P] that you
had touched her in her private parts in between her legs. And, sir—” to which
the appellant cut him off and responded, “You know that’s crazy. You know
that, right?” 211
Through the course of the fifteen-minute phone call, Major P insisted he
knew his daughter was telling the truth. The appellant consistently and em-
phatically denied the allegation. The appellant stated that MP and BP fre-
quently horse-played with him in a very physical manner “like angry bees
buzzing around” him, which resulted in MP giving him a “thick lip.” 212 He in-
sisted he treated the girls like his own granddaughters. He admitted he often
hugs people, that both BP and MP sat on his lap and had climbed all over
him, and that he often says “Good girl” and “You’re my favorite girl” or “fa-
vorite son” to many people. 213 He adamantly maintained that he was never
alone with any of the children. However, he stated he was briefly alone with
MP when she followed him outside of the house the prior evening and kept
hitting him with a tree branch. He told Major P that he should “[a]sk my
stepdaughter—or my daughter . . . if they ever had any inclination, whatso-
ever, that I did any stupid, crazy things like that in the twenty-something
years that I raised them.” 214
210 Id. at 919.
211 PE 5 at 01:30-01:50.
212
Id. at 02:45; 05:12.
213
Id. at 09:44-09:55.
214
Id. at 10:20-10:34.
48
United States v. Wilson, No. 201800022
The conversation reached an impasse, with Major P refusing to accept the
appellant’s continuous denials. Major P appealed to the appellant as a “father
to [him]” who he had “known . . . for years,” asking how the appellant would
feel if he were in Major P’s shoes and what Major P should do. 215 The appel-
lant responded:
Brother, you do . . . what your conscience and your gut tells
you to do. That’s what I always tell any Marine. And, you
know, again, if that means that I get tarred and feathered with
a f[***]ing false label, hey, you know, everything happens for a
reason. And I’ll work through it.
But that’s tragic, man, because I would kill for your daugh-
ters. I would . . . pull a ‘Dexter’ 216 on anybody that I had any in-
clination that had done something like that to your daughters
or my daughters. 217
Major P said he did not know what he was going to do, to which the appel-
lant replied:
I understand the emotions. And I understand the parental
feeling. But I want you to know, man, I would die for those
girls just like I would die for my own girls. . . . But I am here to
tell you nothing untoward ever happened between me and any
of the daughters. And there was no situation where I was alone
at any time with any of the daughters. So, you know, you do . . .
what your gut and your conscience tells you. I have always told
everyone that. 218
The appellant stated that Dr. A had suggested to him that he speak to
Major P. 219 Major P ended the conversation by telling the appellant not to call
him or to come around his family, at which point Major P abruptly hung up
the phone while the appellant was mid-sentence.
215 Id. at 05:30-5:50.
216 References a fictional television show about a murderous vigilante.
217 PE 5 at 11:25-12:08.
218
Id. at 13:01-14:00.
219 When Dr. A testified at trial, he denied that occurred.
49
United States v. Wilson, No. 201800022
b. The government’s view of appellant’s statements
The government argued that the appellant’s statement to Major P was in-
criminating. The trial counsel argued that the appellant demonstrated con-
sciousness of guilt when he assumed that BP was claiming he abused her on
13 July 2016, and he stated that several witnesses were at his house that
night, making it impossible that he abused her that night. Based on Mrs. P’s
angry confrontation and the P family’s abrupt departure from the appellant’s
home, it was not unreasonable for the appellant to assume that the alleged
offense that caused the emotional outburst immediately preceded it. The rec-
ord amply demonstrates that the forensic interviewer believed that was the
case, even as she was interviewing BP.
The government also argued that the appellant demonstrated conscious-
ness of guilt when he stated that he had been “alone” with MP but not BP.
This argument turned on an interpretation of what the appellant meant by
his use of the word “alone.” The government argued that the appellant used
the word “alone” to mean “unsupervised” and because he was often “unsuper-
vised” with BP, this was a lie that demonstrates consciousness of guilt. How-
ever, the appellant stated that he was only “alone” with MP when he and MP
were outside of the house and all others were inside of the house. The evi-
dence does not show that the appellant was ever “alone” or “unsupervised”
with BP in this manner. The testimony demonstrates that there were many
times when the appellant was sitting in the living room with BP, including
times when SP and MP were elsewhere, but during those times, Mrs. W and
Mrs. P were in the adjacent kitchen, within earshot, not separated by any
door.
The government argued that the appellant falsely claimed that Dr. A en-
couraged him to talk to Major P in an effort to urge Major P not to report
BP’s allegation to law enforcement. Dr. A had testified he never did that.
When given multiple opportunities to urge Major P to do just that, the appel-
lant instead counseled Major P to follow his gut and his conscience.
We do not find these arguments persuasive. On balance, the appellant’s
statement is a strong protestation of his innocence. We do not find evidence
in the appellant’s statement to overcome our misgivings about the evidence in
this case.
2. Evidence of BP’s changed affect
Major P, Mrs. P, and Mrs. P’s mother all testified that BP exhibited
changed behavior after her disclosure. Major P stated BP “goes and hides” if
50
United States v. Wilson, No. 201800022
she gets angry, and that BP will only emerge if he or Mrs. P “love her through
it” by reassuring her that they love her. 220 Mrs. P said BP had changes in her
urinary patterns and did not want to go to the bathroom alone. 221 Mrs. P’s
mother testified that BP became “clingy” to Mrs. P and only wanted Mrs. P to
bathe her. 222 The P’s also took BP to “trauma-based therapy.” 223 At trial, BP
denied having any trouble “going to the bathroom since this happened.” 224
A government expert, Dr. E, testified that a change in a child’s behavior
could be the result of trauma from abuse. Children react in different ways,
depending on a number of factors, including how a child “conceptualizes” the
events and the “meaning they attribute to it.” 225 A child’s parents can frame
this conceptualization.
We do not believe that any changes in BP’s behavior constitute sufficient
proof of the appellant’s guilt as to overcome the other infirmities in the evi-
dence. Dr. E testified that all three of the P children suffered trauma after
the events of “disclosure night.” He described the night as a “major, major
event” in which a social evening abruptly ended with cursing, shouting, a
threat to stab the appellant, and a police visit to the P’s home. 226 The trauma
was so severe that Dr. E opined that the P children conflated all of their in-
teractions with the appellant to that one night. Mrs. P stated all three of her
children exhibited increased anger after “disclosure night,” although SP nev-
er claimed she was abused. SP and MP even attended joint counseling ses-
sions with BP.
3. Other government arguments
In closing arguments, the government highlighted several acts by the ap-
pellant which could be inconsequential or could be viewed as nefarious. They
highlighted Mrs. P’s testimony that the appellant washed his hands without
220 Record at 926.
221 Mrs. P stated that BP would feel the urge to urinate but would pass little
urine. She denied that BP ever had a urinary tract or bladder infection or burning
upon urination. However, when BP spoke to the Sexual Assault Nurse Examiner, she
stated she was not having problems with urination.
222 Record at 1226.
223 Id. at 1032.
224
Id. at 1146.
225
Id. at 1303.
226
Id. at 1427.
51
United States v. Wilson, No. 201800022
explanation. On cross-examination of Mrs. P, trial defense counsel suggested
that the appellant used “snuff” type chewing tobacco and would use his finger
to remove the used tobacco from his mouth, meaning he would need to wash
his hands to maintain hygiene. Mrs. P disagreed that snuff users typically
wash their hands, but stated she believes snuff users just “brush it off on
their legs,” both when they are in uniform and in civilian clothes. 227
The government noted that Mrs. P said the appellant used the bathroom
in the maid’s room even though there was a bathroom attached to the kitch-
en. They noted that he found—but then returned—BP’s underwear, and that
he gave BP a ten-dollar bill. And the appellant prank-called Mrs. P.
Adding these acts to the other evidence does not convince us of the appel-
lant’s guilt.
IV. CONCLUSION ON LACK OF FACTUAL SUFFICIENCY
In sum, the government presented no physical evidence and no corrobo-
rating eyewitnesses who saw or heard signs of abuse. Until BP fell onto the
floor and ran crying to Mrs. P on “disclosure night,” no member of the P fami-
ly saw or heard any reason for concern with BP’s play with the appellant.
We do not expect perfect consistency or flawless oratory from a six-year-
old child. However, the government’s own experts indicated that, at least in
July 2016, BP was capable of providing a narrative clearly describing her
abuse but did not. And the government’s own experts found infirmities in the
interview technique and a lack of clarity in BP’s statements. The expert tes-
timony cannot reasonably explain the inconsistencies between all of BP’s
statements.
Considering the entirety of the evidence, we must decide whether it is a
“fair and rational hypothesis” that the appellant touched BP in the manner
she initially described to Mrs. P and to the forensic interviewer, by using his
hand to scoot her up his knee by her crotch instead of lifting her by her arms.
Loving, 41 M.J. at 281.
We must weigh this possibility against the government’s narrative in
which the appellant would have brazenly rubbed BP’s genitalia on and under
her underwear, while sitting on the couch in full view of anyone who could
walk into the room at any time. He would have done so while Mrs. P was in
the adjacent kitchen, within earshot, and while BP’s sisters were periodically
227
Id. at 1043.
52
United States v. Wilson, No. 201800022
and unpredictably running in and out of the room. And he would have
touched her in a manner that caused her pain, which would seemingly in-
crease the chance she would yell out to her mother or recognize the contact as
abuse and disclose it.
Balanced against the very real possibility that BP’s later, more incrimi-
nating statements in her 14 July 2016 forensic interview were the result of
acquiescence to repeated, suggestive questioning, we cannot be convinced
that the appellant did anything more than what BP first disclosed—that he
used his hand to scoot her up by her crotch, which may have caused friction
and discomfort. That contact does not prove the requisite sexual intent. And
given the nature of that type of contact, it is entirely possible that the appel-
lant may have touched BP in this manner once, on 13 July 2016, with other
people present, as BP stated in March 2017 and at trial.
We have carefully reviewed the government’s arguments on the evidence
as they view it. We do not find that the proof is “such as to exclude . . . every
fair and rational hypothesis except that of guilt.” Loving, 41 M.J. at 281.
V. REMAINING ASSIGNMENTS OF ERROR
A. Challenge to Military Judge’s Impartiality
The appellant argues that the military judge abandoned his impartiality
when he suggested an alternative theory of admissibility for BP’s July 2016
forensic interview. Accordingly, the appellant argues that the sentence and
all findings must be set aside.
Before trial, trial counsel sought to admit the recorded interview under
the residual hearsay exception of MILITARY RULE OF EVIDENCE (M.R.E.) 807,
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.). The military
judge ruled that the statement was material and reliable, but he deferred rul-
ing on whether the statement was necessary until BP testified at trial. Fol-
lowing BP’s testimony, the trial counsel filed a written motion, again invok-
ing the residual hearsay exception and never arguing that the statement was
admissible as an M.R.E. 801(d) prior consistent statement.
During oral argument on the motion, the military judge said, “From the
government’s perspective, talk to me about M.R.E. 801(d)(1)(b)(1) . . . prior
consistent statements.” 228 The trial counsel did not immediately note the ap-
228 Record at 1312. In the record, the military judge mistakenly cites M.R.E.
802(d)(1)(b)(1).
53
United States v. Wilson, No. 201800022
plicability of that exclusion from hearsay, stating, “So I think the issue . . .
would be that we would have to find . . . that there is a motive to fabricate.”
The military judge then told the trial counsel he was “not looking at motive to
fabricate,” but instead focusing on “improper influence” as raised by defense
counsel’s cross-examination about witness preparation. 229 When the trial
counsel focused on defense cross-examination of SP, the military judge reori-
ented him to BP’s cross-examination and specifically that “[t]he question was
asked . . . whether there were prior meetings or a meeting” with the trial
counsel. 230 The judge continued, “The implication is clear that by meeting
with you, that somehow the kids were coached, influenced in some way prior
to their testimony in court.” 231 Then he said, “So is the government’s position
that any statement made prior to that which would be consistent with their
in-court testimony would be admissible.” 232 The trial counsel agreed but then
returned his argument to the M.R.E. 807 residual hearsay exception.
The appellant also argues that the military judge improperly suggested
that the government should offer the statement as a recorded recollection
under M.R.E. 803(5) because he asked Dr. E whether it would traumatize BP
to attempt to refresh her recollection by showing her the video of her forensic
interview. We disagree that the military judge’s questions suggested this the-
ory of admissibility.
The military judge admitted BP’s 14 July 2016 forensic interview under
both M.R.E. 807 and M.R.E. 801(d). He stated the bases for admissibility in
an oral ruling on the record which he later supplemented with a written rul-
ing. The appellant never asked the military judge to recuse himself.
Under RULE FOR COURTS-MARTIAL (R.C.M.) 902(a), a military judge “shall
disqualify himself . . . in any proceeding in which that military judge’s impar-
tiality might reasonably be questioned.” RULE FOR COURTS-MARTIAL, MANU-
AL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.). When an appellant
“does not raise the issue of disqualification until appeal, we examine the
claim under the plain error standard of review.” United States v. Martinez, 70
M.J. 154, 157 (C.A.A.F. 2011). Plain error is error that is “plain or obvious”
and which “results in material prejudice.”
Id. We must determine whether,
“ ‘taken as a whole in the context of [the] trial, a court-martial’s legality, fair-
229
Id.
230 Id. at 1313.
231
Id.
232 Id.
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ness, and impartiality were put into doubt’ by the military judge’s actions.”
Id. (citation omitted). We must ask ourselves whether the military judge’s
conduct would lead a “reasonable [person] knowing all the circumstances” to
conclude that the “judge’s impartiality might reasonably be questioned.”
Id.
at 158 (citation omitted).
A military judge need not act as a “mere referee.” United States v. Graves,
1 M.J. 50, 53 (C.M.A. 1975). A military judge has a duty to give proper in-
structions even in the absence of a defense request, and the judge is permit-
ted to question witnesses in order to “resolve . . . confusion,” “reconcile . . . in-
consistenc[ies],” or to clarify testimony. United States v. Ramos,
42 M.J. 392,
396 (C.A.A.F. 1995).
Having closely reviewed the entire record of trial, which spans 2141 pages
of transcript, we do not find that the appellant has “overcome [the] high hur-
dle” of demonstrating that the military judge was biased. United States v.
Quintanilla, 56 M.J. 37, 44 (C.A.A.F. 2001). The military judge often ruled
against the government in motions and objections. Most notably, the military
judge sustained defense objections when the trial counsel attempted to ask
BP, the government’s very reluctant key witness, crucial questions in a lead-
ing fashion. He also, sua sponte, warned Mrs. P that he would excuse her
from the witness stand and instruct the members to disregard all of her tes-
timony if she persisted in grafting inflammatory and non-responsive com-
mentary to her answers. On balance, we are convinced that the military
judge did not abandon his impartiality.
Accordingly, we decline to set aside the findings to the appellant’s remain-
ing convictions.
B. Motion for Mistrial
The appellant argues that the military judge erred in denying the defense
motion for a mistrial. The appellant argues that the trial counsel: (1) improp-
erly referenced evidence that was the subject of a motion in limine; (2) im-
properly displayed and referenced a photograph of the appellant interacting
with JW’s minor daughter in a friendly manner and improperly stated that
JW “was so attached to the [appellant and his wife] that she was okay with
her daughter . . . taking a motorcycle ride [with the appellant] . . . even
though he was at least rumored or pending child sex assault charges”;233 and
(3) improperly informed the members that they “might also see” BP’s forensic
233 Id. at 850.
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interview video, which the appellant argues “forced” the military judge to lat-
er admit the video.
A military judge may “declare a mistrial when such action is manifestly
necessary in the interest of justice because of circumstances arising . . . which
cast substantial doubt upon the fairness of the proceedings.” R.C.M. 915(a). It
is a power that “should be used with great caution, under urgent circum-
stances, and for plain and obvious reasons.” R.C.M. 915(a) Discussion. On
appeal, we review the military judge’s decision and “must not reverse the de-
cision absent clear evidence of abuse of [the military judge’s] discretion.”
United States v. Taylor, 53 M.J. 195, 198 (C.A.A.F. 2000).
We evaluate the appellant’s claimed errors in turn. As for the first
claimed error, we have reviewed the trial counsel’s comments, the testimony
that was admitted at trial, and the military judge’s ruling on the issue. We
find that the trial counsel did not impermissibly relate information that the
military judge ruled inadmissible. The trial defense counsel objected that the
trial counsel impermissibly stated that Mrs. P would testify that Mrs. W
“confided some things in her about [the appellant], about their marriage, and
these things were a concern to [Mrs. P] just as a mother.”234 Trial defense
counsel argued the trial counsel’s statement did not comply with the military
judge’s pre-trial ruling. The military judge issued a detailed written ruling
permitting the government to reference Mrs. P’s concerns in general but dis-
allowed presentation of the underlying details unless defense counsel con-
ducted a specific line of cross-examination. 235 The trial counsel’s opening
statement complied with that ruling. It was not a clear abuse of discretion to
deny the defense motion for a mistrial on this ground.
As for the second claimed error, the military judge ultimately ruled that
he would not admit the photographs of JW’s minor daughter into evidence.
However, he did not find that the trial counsel’s reference to the photo in his
opening statement improper. He offered to provide a curative instruction, but
the defense counsel did not ask for one to be given. It was not a clear abuse of
discretion to deny the defense motion for a mistrial on this basis. Even if this
comment constituted error, we must “analyze [the trial counsel’s] comments
in the context of the entire court-martial.” United States v. Ashby, 68 M.J.
108, 122 (C.A.A.F. 2009). In doing so, we do not find material prejudice to the
appellant’s substantial rights. The members acquitted the appellant of every
specification alleging improper conduct with the P children except one. If the
234
Id. at 844.
235 AE XCI at 11.
56
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trial counsel’s comment prejudiced the appellant in any way, this court’s ac-
tion in setting aside the finding of guilty to Charge I, Specification 2 renders
this error moot.
As for the third alleged improper statement, even if this statement consti-
tuted error, that error is rendered moot by this court’s dismissal of Charge I,
Specification 2. The appellant has failed to establish that a mistrial was war-
ranted. This AOE is without merit.
C. Sentence Reassessment
Because we have set aside the appellant’s conviction for sexual abuse of a
child, there has been a “[d]ramatic change[ ] in the penalty landscape and ex-
posure.” United States v. Winckelmann, 73 M.J. 11, 15 (C.A.A.F. 2013). Con-
sequently, we conclude that we are unable to reassess the appellant’s sen-
tence because we cannot “determine to [our] satisfaction that, absent any er-
ror, the sentence adjudged would have been of at least a certain severity.”
Id.
VI. CONCLUSION
The guilty findings to Charge I, Specification 2 and the sentence are SET
ASIDE and Charge I, Specification 2 is DISMISSED WITH PREJUDICE.
The remaining findings are AFFIRMED. Arts. 59 and 66, UCMJ. The record
is returned to the Judge Advocate General for remand to an appropriate con-
vening authority with a sentencing rehearing authorized. Alternatively, if a
rehearing on sentence is impractical, the convening authority may approve a
sentence of no punishment.
Senior Judge HUTCHISON and Judge LAWRENCE concur.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
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