UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                          BURTON, HAGLER, and SCHASBERGER
                               Appellate Military Judges

                             UNITED STATES, Appellant
                                           v.
                            Specialist CARL R. CRAIN III
                             United States Army, Appellee

                                  ARMY MISC 20170547

                              Headquarters, Fort Riley
                          J. Harper Cook, Military Judge
                  Colonel Jerrett W. Dunlap, Staff Judge Advocate


For Appellant: Lieutenant Colonel Eric K. Stafford, JA; Captain Catharine M.
Parnell, JA (on brief).

For Appellee: Lieutenant Colonel Christopher Carrier, JA; Captain Cody Cheek, JA;
Captain Benjamin A. Accinelli, JA (on brief).


                                        15 March 2018
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                   SUMMARY DISPOSITION AND ACTION ON APPEAL
                     BY THE UNITED STATES FILED PURSUANT TO
                 ARTICLE 62, UNIFORM CODE OF MILITARY JUSTICE
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Per Curiam:

       In order for this court to have jurisdiction over an appeal under Article 62,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 862 (2012), the appeal must
be filed in accordance with Army Court of Criminal Appeals Rules of Practice and
Procedure (A.C.C.A.) Rule 21. We lack jurisdiction over appeals not filed in
accordance with this rule.

      Appellee stands accused of four specifications of rape, one specification of
sexual abuse of a child, two specifications of assault consummated by a battery, and
one specification of child endangerment, in violation of Articles 120, 120(b), 128,
and 134, UCMJ (2006; 2012). This case is before this court pursuant to the
government’s appeal challenging the military judge’s decision to exclude the hearsay
statements of the minor victim, JC, under Military Rule of Evidence (Mil R. Evid.)
807.
CRAIN–ARMY MISC 20170547

                                   BACKGROUND

       The government filed a motion in limine to admit JC’s out-of-court statements
to her mother, JP, as an excited utterance under Mil. R. Evid. 803(2) or under the
residual hearsay exception under Mil. R. Evid. 807. The government also sought to
admit statements JC made to KH under the medical exception in accordance with
Mil. R. Evid. 803(4) or under the Mil. R. Evid. 807 residual hearsay exception.

       The military judge made a preliminary written ruling in favor of admissibility
for the statements JC’s made to her mother, JP, as an excited utterance. In reference
to the statements to KH, the military judge made a preliminary ruling against
admissibility under the medical exception and as residual hearsay.

       As the trial proceeded, JC was called as a witness, but because she was not
able to take the standard oath nor a modified oath due to her young age, JC could not
testify. The government renewed its motion under Mil. R. Evid. 807 to admit JC’s
statements to KH. The military judge reconsidered the motion and found the
government satisfied the notice, materiality, and necessity prongs of the residual
hearsay exception; however, the “equivalent and circumstantial guarantees of
trustworthiness” were not met. JC’s statements to KH were not admitted.

       The government called KH to lay additional foundation for the admission of
JC’s statements. Based on the testimony of KH and the testimony of JC’s treating
physician, the government asked the military judge to reconsider his ruling for a
second time on the admissibility of these statements from JC to KH.

      On 19 October 2017, the military judge reconsidered his previous two rulings
and once again ruled that the statements are not admissible. This final ruling is
before us now based on the government’s appeal.

                                    DISCUSSION

       Article 62(a)(1)(B), UCMJ, states that “the United States may appeal . . .[a]n
order or ruling which excludes evidence that is substantial proof of a fact material in
the proceeding.” Article 62(b) requires such an appeal be “forwarded” to the Court
of Criminal Appeals.

       Rule for Courts-Martial (R.C.M.) 908 implements Article 62, UCMJ. In
pertinent part, the rule requires the trial counsel to provide the military judge with
written notice not later than seventy-two hours after the ruling. R.C.M. 908(b)(2).
Such notice shall identify the ruling or order to be appealed and the charges and
specifications affected. R.C.M. 908(b)(2). Further, RCM 908(b)(5) requires a
verbatim record that is complete to the extent necessary to resolve the issue
appealed.


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CRAIN–ARMY MISC 20170547

        The appellate rules for filing government appeals are promulgated by The
Judge Advocate General (TJAG) and published in this court’s rules of practice and
procedure. A.C.C.A Rule 21 covers appeals by the United States. The rule affords
trial counsel twenty days from the date written notice of appeal is filed with the trial
court to forward the appeal, including an original and two copies of the record of
trial to the representative of the Government designated by TJAG. A.C.C.A Rule 21
(emphasis added).

       The military judge made the ruling that the government is now appealing on
19 October 2017. On the same day, the government properly filed notice with the
military judge of their intent to appeal, satisfying the seventy-two hour requirement.
However trial counsel failed to forward the original and two copies of the record
within the prescribed twenty days to the representative of the government. Some
documents were mailed by the trial counsel on 8 November 2017, which is twenty
days from the date notice was given to the military judge. This complies with the
requirement to forward the record within twenty days. Three copies of the record
were received at the Government Appellate Division (GAD) on 15 November 2017.
These documents were filed with the court on 16 November 2017. *

       Upon review, the Defense Appellate Division noted that several items were
missing, in violation of R.C.M. 908, to include the ruling by the military judge that
is the subject of the appeal and the entirety of the testimony surrounding the ruling.

       The government has failed to adhere to A.C.C.A. Rule 21. The documents
required for the appeal (i.e. the original record of trial and the military judge’s
ruling) were not mailed until 17 November 2017, twenty-nine days after the military
judge’s ruling, not within the required twenty days. No good cause has been shown
as to why these rules should not be adhered to; therefore we lack jurisdiction to
consider this appeal.

                                   CONCLUSION

     Accordingly, the appeal by the United States under Article 62, UCMJ, is
DISMISSED.




*
  GAD asserts they contacted a paralegal in the Clerk’s office for guidance on how
to proceed with the filing of this appeal. Though counsel contends the paralegal
advised copies could be filed and later substituted with the original and that a
motion to file out of time should be filed; no such motion was filed. Furthermore,
the advice of a paralegal does not supersede the court rules nor does it change the
legal responsibilities of counsel. A GAD branch chief confirmed the trial counsel
had twenty days from the notice of appeal to mail the record of trial to GAD.

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CRAIN–ARMY MISC 20170547

                           FOR THE
                           FOR THE COURT:
                                   COURT:




                           MALCOLM H. SQUIRES, JR.
                           Clerk of Court




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