For Appellant: Captain Kyle R. Jacobson (argued); Colonel James R. Wise, Major Maria A. Fried, and Major Gilbert J. Andia, Jr., USAFR (on brief); Lieutenant Colonel Timothy W. Murphy.

For Appellee: Captain Peter J. Camp (argued); Colonel Anthony P. Dattilo and Lieutenant Colonel Ronald A. Rodgers (on brief).

Military Judge: John J. Powers
 
 

PER CURIAM:

Contrary to his pleas, appellant was convicted of two specifications of larceny, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921. A panel of officer members sitting as a general court-martial sentenced him to a bad-conduct discharge, 24 months’ confinement, total forfeitures, and reduction to the lowest enlisted grade. The convening authority approved the sentence as adjudged and the court below affirmed. We granted review of the following issue:

Before going on temporary duty from Kadena Air Base, Okinawa, Japan, to Saudi Arabia in September 1996, Senior Airman Davis gave appellant a special power of attorney to take care of his car. When Davis returned, he noticed several items were missing from his car. When he confronted appellant on several occasions about the missing items, he received different responses. Appellant contends that he had an agreement to buy the car; thus he could take items from the car. Davis testified that in a telephone conversation, appellant told him that he had replaced the engine in Davis’ car with a more powerful engine.

Likewise, in October 1996, Airman Cox departed Kadena Air Base on leave and left appellant with a power of attorney to take care of various personal items, including a video camera, and to sell his car. Instead of selling the car, appellant gave the car to Airman Price.

Airman Oda testified about being "offered" a video camera when defense counsel asked him: "[D]id you actually see the video camera?" Oda responded, "Yes Sir. I seen it after someone else bought it." Oda also testified that appellant said the camera "belonged to him." Based on these statements from appellant introduced by the defense, the prosecution on several occasions introduced opinion and reputation evidence as to appellant’s untruthfulness. The defense had elicited the statements from Davis and Oda to show appellant’s "mistaken belief" that appellant had permission to dispose of the property. Final Brief at 8.

In United States v. Goldwire, 55 MJ 139, 143 (2001), we recognized that Mil.R.Evid. 806, Manual for Courts-Martial, United States (1995 ed.), applies by its express terms to "Mil.R.Evid. 801(d)(2), (C), (D), or (E)." We also held that it applies to introduction of hearsay. Id. at 143 (maj. op) and 146 (Sullivan, J., concurring in the result). Once appellant’s pretrial statement is admitted [for purposes of Mil.R.Evid. 806], appellant is treated as a testifying witness and the Government may properly introduce reputation and opinion evidence to impeach appellant’s truthfulness. United States v. Goldwire, supra. Both the statements by Davis and Oda that directly or indirectly indicate appellant’s ownership of the items alleged under the larceny specification were offered as state-of-mind evidence to establish the defense’s theories of the case -- that appellant mistakenly believed he could dispose of the property as he wished. Trial counsel argued that these statements were admitted under Mil.R.Evid. 803(3) and defense counsel did not dispute that statement. Its introduction under the state-of-mind exception formed the predicate for impeachment explicitly recognized in Mil.R.Evid. 806. Moreover, even if the statements were not hearsay defense, the statements put the credibility of appellant’s mistake-of-fact defense at issue. Thus, we hold that once defense counsel’s cross-examination sought to introduce appellant’s exculpatory statements, it was appropriate to introduce character evidence as to appellant’s untruthfulness.

The decision of the United States Air Force Court of Criminal Appeals is affirmed.

SULLIVAN, Judge (concurring in the result):

The granted issue in this case asks:

As a starting point, I note that the military judge’s authority for admitting the challenged impeachment evidence was Mil. R. Evid. 806. It states in pertinent part:

However, close examination of appellant’s brief clearly indicates that he is arguing that the evidence purportedly justifying impeachment in this case under Mil. R. Evid. 806 was not hearsay, i.e., not "offered to prove the truth of the matter asserted" in those statements." Final brief at 4, 5. The military judge at trial disagreed with the defense on this point and ruled that this evidence was being used for hearsay purposes and permitted the Government to impeach the accused. (R. 180) Accordingly, the question before us is whether the military judge correctly ruled the out-of-court statements constituted hearsay under Mil. R. Evid. 801(c).

The majority, adopting trial counsel’s argument, asserts that the out-of-court statements of appellant were offered to show his state of mind and hence were admissible hearsay under Mil. R. Evid. 803(3). (R. 179) I note, however, Mil. R. Evid. 803 states:

The late Justice Mosk of the California Supreme Court has commented on the type of error made by the majority in characterizing appellant’s out-of-court statements as admissible hearsay under Mil. R. Evid. 803(3). See People v. Green, 609 P.2d 468, 480-81 (Cal. 1980). He pointed out in a footnote (n.9):

Defense counsel in this case clearly did not agree that the evidence he had previously introduced was admissible hearsay under Mil. R. Evid. 803(3). (R. 177-78) On the contrary, he stated that three of the out-of-court statements of appellant were offered to show the state of mind of the person to whom appellant’s statements were made or to contradict a witness testifying that these statements were not made. (R. 177-78) (see appendix) He also stated concerning the fourth statement:

Nevertheless, I concur in the result reached by the majority in this case. The key factual issue was whether appellant had agreements with his fellow servicemembers to dispose of their property as if it were his. Appellant elicited evidence of his out-of-court statements which, if believed, would tend to show appellant had such agreements. Moreover, he did not request that this evidence be used for a non-hearsay purpose alone at the time of admission of these statements. See Mil. R. Evid. 105. Also, when he later made his Mil. R. Evid. 806 objection, he made no requests for limiting instructions concerning his asserted limited purpose in introducing this evidence. (R. 132-34, 177-80). Accordingly, I would resolve this case against appellant because of his failure to limit use of this evidence to its non-hearsay uses ((see United States v. Burton, 937 F.2d 324, 327-28 (7^th Cir. 1991) (Government’s failure to limit its evidence to non-hearsay use permitted impeachment by defense under Fed. R. Evid. 806)) and his later use of these statements for hearsay purposes. (R. 255) See United States v. Goldwire, supra (Sullivan, J., concurring in the result). See generally Sonenshein, supra at 167.

DC: Thank you, Your Honor. I’ll just start off by addressing the particular statements that the prosecution has brought up. The first, with regardto the engine, Your Honor, it’s, again, the mainpoint there for asking the question was not so muchas to whether Airman Hart actually changed out the engine in the automobile as it was to say that, yes,he made that statement in and of itself to AirmanDavis, and Airman Davis knew, at the time, that thatwas beyond the scope of the power of attorney.