Judge ERDMANN delivered the opinion of the court.
Specialist Demetrice K. Baker was charged with two specifications of indecent exposure and two specifications of assault in violation of Articles 120 and 128(a), Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920(n), 928(a) (2006). Prior to trial the military judge granted a motion to suppress evidence of an initial photo identification and later in-court identification made by the victim. The Government appealed that ruling to the United States Army Court of Criminal Appeals pursuant to Article 62, UCMJ, 10 U.S.C. § 862. The Army court granted the Government’s motion to vacate the military judge’s ruling. United States v. Baker, No. ARMY Misc. 20100841, 2011 CCA LEXIS 52, at *19, 2011 WL 891345, at *6 (A.Ct.Crim.App. Mar. 7, 2011).
Military Rules of Evidence (M.R.E.) 321(a)(1) and (d)(2), read together with (a)(2)(B), set forth a two-prong test based upon Supreme Court case law for determining admissibility of eyewitness identification. United States v. Rhodes, 42 M.J. 287, 290 (C.A.A.F.1995). “First, was a pretrial identification unnecessarily suggestive? Second, if the pretrial identification was ‘unnecessarily suggestive,’ was it conducive to a substantial likelihood of misidentification?” Id. (citations omitted). We granted review to determine whether the military judge abused his discretion in suppressing the victim’s out-of-court and subsequent in-court identifications of Baker as unreliable.1 We hold that the military judge did not abuse his discretion in granting the defense motion to suppress and [285] reverse the decision of the Army Court of Criminal Appeals.
Factual and Procedural Background
The military judge summarized the facts leading up to the identification at issue in his written ruling granting the defense motion to suppress:2
a. In the afternoon of 25 July 2009, [KTB] went for a fast-paced walk on a bicycle trail near Reinheim, Germany. [KTB] was walking for exercise/cardiovascular purposes and breathes hard during her walks. She is normally not focused on the people around her as she walks. [KTB] is nearsighted and was not wearing her prescription contacts at the time of her walk. Without her contacts, she can see and recognize people at close distances of 2 to 3 meters. However, her eyesight is degraded at greater distances.
b. Prior to getting onto the bicycle trail and still approximately 20 to 30 meters away, she observed a bicycle rider (the rider) pass by on the trail in front of her. The rider was a black man wearing bicycle clothes, a bicycle helmet, and sunglasses.
c. After [KTB] started walking along the trail, she saw the rider again approximately 20 to 40 meters in front of her. He was kneeling in front of his bike and doing something to his bike. As [KTB] approached to within 7 to 8 meters of the rider, he looked back at her and then got back on his bike and rode away.
d. [KTB] continued to walk along the trail and saw the rider again. This time he was standing with his back towards her as if he was urinating. As she walked past the rider — approximately 5 to 7 meters away — he looked back at her. She continued to walk along the trail, and at some point, the rider passed her again.
e. A while later, [KTB] noticed the rider once again standing with his back towards her as if he was urinating. This time however, as she approached, he turned around, and ran towards her with his penis in his hand. He stood approximately 2 feet in front of her face-to-face blocking her way. He had his pants partially down and he was holding his penis. [KTB] was panicked by this frightful situation. Her heart was beating hard, her “stomach was upside down,” and she was focused on getting away. As she tried to get around the rider, either to his left or right, he continued to block her way. The rider then grabbed [KTB]’s sweater and said something which she interpreted as “Get undressed.” She pushed him away, saying, “Let me go.” He let go of her and she quickly walked away.
f. After [KTB] got home, she called the police and reported that she had been sexually assaulted by a bicycle rider on the bicycle trail. She talked to Officer Gress and described the rider as a 1.75 meters tall black man with a muscular body and wearing bicycle attire — helmet, sunglasses, and bicycle shirt and shorts.
g. Officer Gress called two patrols for assistance, then Officer Gress and his partner drove to the trail and started looking for a bicycle rider fitting the description given by [KTB], They did not see anyone on the entire trail that fit the description, but were able to question two groups of people on the trail. One group of people on the trail told them that they had seen a bicycle rider fitting this description and pointed them in the right direction. Officer Gress and his partner called ahead to another patrol that was blocking off that end of the trail. The other patrol stopped the accused on his bicycle. The accused is a black male and he was wearing bicycle attire — helmet, sunglasses, and bicycle shirt and shorts. Officer Gress and his partner apprehended the accused and took him back to the police station. At the police station, Officer Gress took two photos with a digital camera — one full body view of the accused and one of the accused’s bike helmet and sunglasses ....
h. Approximately 1$ hours after her encounter with the rider on the trail, [286] [KTB] received a phone call from Officer Gress informing her that they “found someone that she should take a look at.” When she arrived at the police station, Officer Greff [sic] told her that they had taken photos of the suspect and asked her to provide a more specific description of the rider. She provided the same description as she had over the phone with the addition that the rider had a gap in his teeth and that he spoke English. One of the police officers left the room, which [KTB] presumed was for the purpose of verifying the description.
i. Officer Gress then showed [KTB] the full body picture of the accused on the screen of the digital camera. [KTB], who was now wearing her prescription contacts, said that the accused was the rider who had assaulted her. She also mentioned remembering that the rider had a mustache (or stubble on the face). Therefore, Officer Gress zoomed in on the photo to see if they could decipher the mustache and the gap in the teeth. Then Officer Gress showed [KTB] the screen with just the accused’s face on it. (At the 20 September motions hearing, [KTB] only clearly recalled seeing this “close-up,” which specifically focused on the accused’s face, and admitted that her memory was “pretty blurry” in her mind about how the identification process transpired.) Although she had to look at the photo a few seconds because she had only seen the rider with his helmet and sunglasses on and had never clearly seen his eyes, [KTB] was able to identify the accused as the rider who assaulted her. According to her 20 September 2010 testimony, she noticed the similarities of the nose, ears, chin and upper lip.
j. At the 20 September motions hearing, [KTB], who was wearing her prescription contacts, identified the accused as the rider who assaulted her. She was very sure (“100 percent”) of her identification because he “just looks like the person because the nose, cheeks, the beard, the ... muscular body.”
(Second ellipsis in original.)
In his ruling granting the motion, the military judge applied the Supreme Court’s five-factor test for determining the admissibility of pretrial and in-court identifications set forth in Neil v. Biggers, 409 U.S. 188, 199—200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972): the opportunity of the witness to view the criminal at the time of the crime; the witness’ degree of attention; the accuracy of the witness’ prior description of the criminal; the level of certainty demonstrated by the witness at the confrontation; and the length of time between the crime and the confrontation.
The military judge concluded “the manner in which the photo identification was conducted was unnecessarily suggestive and conducive to a substantial likelihood of misidentifi-eation.” He ruled the photo identification inadmissible and the subsequent in-court identification also inadmissible because it was “significantly impacted by the suggestive close-up photo: the only time in which [KTB] came ‘face-to-face’ (without helmet/sunglasses) with either the rider or the accused until the motions hearing 14 months later.”
Before issuing his written ruling, the military judge notified the parties of his decision to grant the defense motion. Prior to the issuance of the decision, the Government filed a “Motion for Appropriate Relief (Request for Reconsideration).” The military judge issued his written decision and then convened an Article 39(a), UCMJ, 10 U.S.C. 839(a) session to address the Government’s motion to reconsider. The Government also urged the military judge to adopt additional findings of fact. After an extensive argument and discussion, the military judge adopted additional findings of fact from the bench, which included:3
Based on a preponderance of the evidence, the rider looked back at KTB, he saw her face and she saw the rider’s face but “that was not a clear view, and she did not have the eyesight to see his face clearly from that distance.”
[287] “[KTB], when she described the rider, she described him with black bicycle shorts and a white bicycle shirt; in addition to him being 1.7 meters tall, muscular, black complexioned, riding a bicycle — a racing bicycle and wearing a bicycle helmet.”
“[W]hen [KTB] walked approximately 5 to 7 meters away from the bike rider, she saw [his] face .... Not clearly, but she did see it.”
Notwithstanding these additional findings of fact, the military judge denied the Government’s motion for reconsideration.
The Army Court of Criminal Appeals held the facts set forth by the military judge were not clearly erroneous and adopted those facts in its opinion. Baker, 2011 CCA LEXIS 52, at *2, 2011 WL 891345, at *1. However, that court held the military judge abused his discretion when he granted the motion to suppress because he ‘“committed a clear error of judgment in the conclusions [he] reached upon weighing of the relevant factors.’” Id. at *9, 2011 WL 891345, at *3 (alteration in original) (quoting United States v. Ellis, 68 M.J. 341, 344 (C.A.A.F.2010)). The lower court held the identification was not so unnecessarily suggestive as to create a substantial likelihood of misidentification. Id. In its de novo review of the Biggers factors, the court concluded:
[KTB had] a concentrated period of at least one to two minutes to view the rider’s face .... Contrary to the military judge’s conclusions, [KTB] had far more than minimal opportunity and capacity to view the rider the five separate times she observed him. Even with degraded eyesight at a distance past two to three meters, she was able on those five instances to confirm it was the same person in each encounter and to provide a relatively detailed description of what the rider was doing at the time she noted his presence on the trail.
... She focused her full attention on [the rider] five times, albeit for varying lengths of time, to include three occasions which involved more than the rider just passing her on his bike.
Id. at *13, 2011 WL 891345, at *4-*5.
As to the other Biggers factors, the Court of Criminal Appeals held that KTB’s description of the assailant was accurate and “agree[d] with the military judge’s conclusion that [KTB] had an ‘extremely high level of certainty in the accuracy of both her photo-identification and in-court identification of the accused.’ ” Id. at *15, 2011 WL 891345, at *5. The lower court also agreed with the military judge’s conclusion that very little time lapsed between the crime and the confrontation. Id. at *16, 2011 WL 891345, at *5.
Before this court, Baker filed a petition for review of the Court of Criminal Appeals decision as well as a motion to stay the proceedings pending the appeal. We granted Baker’s assigned issue4 and the motion for a stay.
Standard of Review
The standard of review we apply in this ease is critical to the outcome. “We review a military judge’s ruling on a motion to suppress for abuse of discretion.” United States v. Rodriguez, 60 M.J. 239, 246 (C.A.A.F.2004) (citing United States v. Monroe, 52 M.J. 326, 330 (C.A.A.F.2000)). “In reviewing a military judge’s ruling on a motion to suppress, we review factfinding under the clearly-erroneous standard and conclusions of law under the de novo standard.” United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F.1995). “Thus on a mixed question of law and fact ... a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect.” Id. The abuse of discretion standard calls “for more than a mere difference of opinion. The challenged action must be ‘arbitrary, fanciful, clearly unreasonable, or clearly erroneous.’” United States v. White, 69 M.J. 236, 239 (C.A.A.F.2010) (quoting United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F.2010)).
When reviewing matters under Article 62(b), UCMJ, the lower court may act [288] only with respect to matters of law. United States v. Gore, 60 M.J. 178, 186 (C.A.A.F.2004). “When a court is limited to reviewing matters of law, the question is not whether a reviewing court might disagree with the trial court’s findings, but whether those findings are ‘fairly supported by the record.’ ” Id. (quoting United States v. Burris, 21 M.J. 140, 144 (C.M.A.1985)). When reviewing a ruling on a motion to suppress, “we consider the evidence in the light most favorable to the prevailing party.” United States v. Cowgill, 68 M.J. 388, 390 (C.A.A.F.2010) (quoting United States v. Reister, 44 M.J. 409, 413 (C.A.A.F.1996)). As we “pierce the intermediate level of appellate review and examine the military judge’s ruling directly,” Baker is the prevailing party in this case. United States v. Meghdadi, 60 M.J. 438, 441 (C.A.A.F.2005).
Discussion
In reviewing the admissibility of eyewitness identification we look to M.R.E. 321(a)(1), (a)(2)(B), and (d)(2), which codify the two-part test established by the Supreme Court in Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Rhodes, 42 M.J. at 290. Initially the trial court determines whether the pretrial identification was “unnecessarily suggestive,” and then if so, determines whether it was “conducive to a substantial likelihood of misidentifi-eation.” Id. This second inquiry centers on the reliability of the identification as determined by an application of the Biggers factors. Id. at 291. Even if the pretrial identification is ultimately held inadmissible, M.R.E. 321(d)(2) provides that “a later identification may be admitted if the prosecution proves by clear and convincing evidence that the later identification is not the result of the inadmissible identification.”
Both the military judge and the Army Court of Criminal Appeals appear to have proceeded directly to an analysis of the Big-gers factors.5 The lower courts then relied on their analysis of the Biggers factors to determine whether the identification was “unnecessarily suggestive” as well as whether it was “conducive to a substantial likelihood of misidentification.” Baker, 2011 CCA LEXIS 52, at *13-*18, 2011 WL 891345, at *4-*6. In our analysis, we will address the two-part evaluation set forth in Rhodes.
I. Was the Pretrial Identification Unnecessarily Suggestive?
Baker argues that showing KTB a single digital photograph of Baker was unnecessarily suggestive because this type of “show-up” procedure is “inherently suggestive” and was described by the Supreme Court in Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), as “widely condemned.” Baker argues the suggestiveness of the show-up was exacerbated by the police officer’s comment that they “found someone that [KTB] should take a look at.” The Government responds that the photo ID was not unnecessarily suggestive because it took place immediately after the incident, the police stopped the accused only after determining that he matched the entire description given by KTB, and they made sure KTB’s description matched the suspect before showing her the picture.
“Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misiden-tification is gratuitous.” Biggers, 409 U.S. at 198, 93 S.Ct. 375. “[S]howing a suspect singly to a victim is pregnant with prejudice. The message is clear: the police suspect this man. That carries a powerfully suggestive thought .... When the subject is shown singly, havoc is more likely to be played with the best-intended recollections.” Biggers v. Tennessee, 390 U.S. 404, 407, 88 S.Ct. 979, 19 L.Ed.2d 1267 (1968).
Weighing the evidence in the light most favorable to the prevailing party, the military [289] judge did not abuse his discretion when he held that the initial identification was unnecessarily suggestive. In addition to the police officer’s comment that they had “found someone that [KTB] should take a look at,” the image of Baker shown to KTB was displayed on a relatively small digital camera screen and depicted a rider without a helmet or sunglasses, unlike the rider KTB encountered. The military judge also found that KTB only mentioned that the assailant might have had a mustache after she viewed the image, and only then did Officer Gress zoom-in on the image and confirm the mustache. These factors coupled with the suggestive nature of a show-up photo identification procedure, created a scenario that was unnecessarily suggestive. We therefore proceed to an analysis of the Biggers factors to determine whether the identification was nevertheless reliable.
II. Was the Unnecessarily Suggestive Pretrial Identification Conducive to a Substantial Likelihood of Misidentification?
As in Biggers, we now address the central question, “whether under the ‘totality of the circumstances,’ the identification was reliable even though the confrontation procedure was suggestive.” Biggers, 409 U.S. at 199, 93 S.Ct. 375. Because the military judge provided a detailed ruling evidencing an accurate understanding of the Biggers factors and their application to the facts on the record, we give deference to his ruling in our analysis. See United States v. Briggs, 64 M.J. 285, 287 (C.A.A.F.2007) (citing United States v. Downing, 56 M.J. 419, 422 (C.A.A.F.2002)).
A. Opportunity of the Witness to View the Criminal at the Time of the Crime
The military judge and the Army court disagreed about the sufficiency of KTB’s opportunity to view her assailant. The military judge noted KTB’s “nearsightedness,” and concluded that she had “minimal opportunity and capacity” to view the rider. He explained, “[o]ther than the few moments that she was extremely close with the rider during the assault itself, her nearsightedness alone prevented her from getting a clear look at the rider.” (Emphasis added.) In contrast, the Army court found that when the assailant approached KTB with his penis in his hand, she had a “concentrated period of at least one to two minutes to view the rider’s face.” 2011 CCA LEXIS 52, at *13, 2011 WL 891345, at *4 (emphasis added). While Baker argues that this amounts to an impermissible finding of fact by the Army court in violation of Article 62, UCMJ, which confines that court’s jurisdiction to matters of law, the Government suggests this comment “reflects a legally permissible conclusion based on the facts as found by the military judge.”
In its opinion, the Army court wrote “[t]he factual findings set forth by the military judge ... and his additional factual findings in the record are not clearly erroneous and thus, we adopt them.” Id. at *2, 2011 WL 891345, at *1. However, the military judge’s ruling did not find that KTB had “at least one to two minutes” to view the rider’s face, nor is this fact reflected in KTB’s testimony at the hearing on the motion. We disagree with the Government’s suggestion that this statement does not constitute an additional fact, but reflects a mere difference in the interpretation of facts found by the military judge.6 While the dissent regards the difference between the military judge’s finding of a “few moments” and the Army court’s finding of “one to two minutes” as merely a difference in the manner in which KTB’s testimony was “characterized” by the lower courts, United States v. Baker, 70 M.J. 294 n. 1 (C.A.A.F. 2011) (Baker J., dissenting), this temporal difference is more than a mere difference in interpretation or characteriza[290] tion of KTB’s testimony. The Army court’s finding is clearly distinct from, and indeed contrary to, the findings of the military judge. There is no evidence in the record or in the military judge’s findings that the encounter between KTB and the rider lasted “at least one to two minutes.”
As the Army court has no authority to find facts in an Article 62, UCMJ, appeal, that court’s determination that KTB had “a concentrated period of at least one to two minutes to view the rider’s face” amounts to an impermissible finding of fact. 2011 CCA LEXIS 62, at *13, 2011 WL 891345, at *4. This erroneous finding is particularly problematic as the Army court relied upon it for support of its determination that the military judge erred in his analysis of this Biggers factor. Id. at *9, 2011 WL 891345, at *3.
The military judge concluded that KTB had only “minimal opportunity and capacity to view the rider” because “[ojther than the few moments that she was extremely close” to the rider, her nearsightedness prevented her from getting a good look at the rider. In addition, the rider was wearing a helmet and sunglasses at the time of the incident, thus KTB could not get a good view of the details of the rider’s face even at close range. Although KTB walked past the rider a few times before the incident, she testified that when she walks she is not focused on the people around her. During the brief encounter when she was face-to-face with the assailant, she was “panicked and focused on getting away.”
If, as the Army court determined, KTB had come face-to-face with the attacker for a “concentrated period of at least one to two minutes,” a case could be made for the Army court’s conclusion that she had ample opportunity to view the attacker. However, as discussed supra, the military judge concluded that she had only a few moments to view the rider up close. When compared with other cases evaluating this factor, a few moments is not a significant amount of time to view the suspect. See Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) (in finding identification reliable, Supreme Court noted that witness “looked directly at [the suspect]” for “two to three minutes”); Biggers, 409 U.S. at 200, 93 S.Ct. 375 (no substantial likelihood of mis-identification where the witness “spent a considerable period of time with her assailant, up to half an hour”); Rhodes, 42 M.J. at 291 (show-up identification sufficiently reliable in part because the victim “had about 20 minutes to look at the perpetrator” during the incident). Therefore, we hold the military judge’s analysis of this factor was fairly supported by the record and did not constitute an abuse of discretion.
B. The Witness’Degree of Attention
The military judge and the CCA also disagreed over KTB’s degree of attention to the rider. The military judge concluded that KTB “did not pay particular attention to the rider’s face” during their first few encounters and noted that KTB was panicked and focused on trying to get away during the assault. The Army court, in contrast, concluded “the rider repeatedly engaged in actions that drew KTB’s attention to him” and “[s]he focused her full attention on him five times.” Baker, 2011 CCA LEXIS 52, at *13, 2011 WL 891345, at *5. Here again the Army court referenced KTB’s “extended face-to-face close encounter,” which reflects a continued reliance on its impermissible finding of fact that KTB had at least one to two minutes to view the rider’s face at close range. Id. at *14, 2011 WL 891345, at *5.
Evaluating the witness’ degree of attention is relatively straightforward and a high degree of attention is preferred. In Rhodes, we held this factor favored the Government when the witness was “very attentive” during the incident. Rhodes, 42 M.J. at 291. The Supreme Court has considered whether the witness was a “casual or passing observer” versus a “specially trained” police officer who would be expected to pay scrupulous attention to detail. Brathwaite, 432 U.S. at 115, 97 S.Ct. 2243. A witness’ stress or anxiety level can also play a role in their degree of attention, however courts differ as to whether heightened anxiety increases attentiveness or reduces the witness’ focus on the details of the suspect. See United States v. Garcia-[291] Alvarez, 541 F.3d 8, 14 (1st Cir.2008) (finding a witness’ degree of attention would be high during traumatic events such as a robbery and a carjacking); but see Richardson v. Superintendent of Mid-Orange Correctional Facility, 621 F.3d 196, 204-05 (2d Cir.2010) (witness may have had a “lack of focus” on the suspect during a traumatic incident).
The Army court concluded that KTB “focused her full attention on [the rider] five times, albeit for varying lengths of time.” Baker, 2011 CCA LEXIS 52, at *13, 2011 WL 891345, at *5. However, this finding is not reflected in the military judge’s ruling and cannot be relied upon by either this court or the Army court in determining whether the military judge abused his discretion. The record reflects that KTB testified that she “is normally not focused on the people around her as she walks” and “[w]ith-out her contacts, she can see and recognize people at close distances of 2 to 3 meters.” Thus, during the first few encounters with the rider, KTB was merely a “casual or passing observer” of the type noted in Brath-luaite. Only in the last instance, when the assailant exposed himself to KTB, would she have been focused on his face and features to any significant degree. However, as the military judge noted, KTB “was panicked and focused on getting away” during that last encounter. Accordingly, we conclude that the military judge did not abuse his discretion when he held that KTB’s degree of attention to the rider was minimal.
C. The Remaining Biggers Factors: Accuracy of the Witness’ Prior Description of the Criminal; Level of Certainty Demonstrated by the Witness at Confrontation; and Length of Time Between the Crime and the Confrontation
In regard to the final three Biggers factors, there is no significant difference between the analysis of the military judge and that of the Army court. As to the third prong, the military judge concluded that KTB gave a “somewhat accurate” description of the accused when he was apprehended and indicated that her description matched that of the suspect during the hearing on the motion to reconsider. The Court of Criminal Appeals also concluded that the description given by KTB matched the photo of the accused. 2011 CCA LEXIS 52, at *14, 2011 WL 891345, at *5. As to the fourth prong, the military judge and the Court of Criminal Appeals agreed that KTB had an extremely high level of certainty in the accuracy of her description. Id. at *15, 2011 WL 891345, at *5. Finally, as to the fifth prong, the military judge and the Court of Criminal Appeals also agreed that there was only a brief lapse of time between the crime and the confrontation. Id. at *16, 2011 WL 891345, at *5. We find no errors in these findings and conclusions.
D. Weighing of the Biggers Factors
“Against these factors is to be weighed the corrupting effect of the suggestive identification itself.” Brathwaite, 432 U.S. at 114, 97 S.Ct. 2243. Reviewing courts must determine whether under the totality of the circumstances the identification was reliable even though the confrontation procedure was suggestive. Biggers, 409 U.S. at 199, 93 S.Ct. 375. We consider these guidelines under the abuse of discretion standard of review required in this case. As such, our task is to determine whether the military judge’s findings of fact are clearly erroneous or his conclusions of law are incorrect. Ayala, 43 M.J. at 298. As discussed above, the abuse of discretion standard requires “more than a mere difference of opinion.” White, 69 M.J. at 239. The military judge’s decision warrants reversal only if it was “ ‘arbitrary, fanciful, clearly unreasonable, or clearly erroneous.’ ” Id. (quoting Lloyd, 69 M.J. at 99).
Accordingly, we cannot say the military judge abused his discretion when he held the show-up identification unnecessarily suggestive. Given the facts found by the military judge and this court’s and the Supreme Court’s caution over the use of show-up identifications, the military judge’s conclusion was not arbitrary or clearly unreasonable. Nor can we find the military judge’s applica[292] tion of the Biggers factors to the facts of this ease to be clearly erroneous.7
Even if another court may have drawn other findings based on the evidence, the military judge’s decision cannot be reversed based on a mere difference of opinion or an impermissible reinterpretation of the facts by appellate courts. Further, the Army court’s decision to vacate the military judge’s ruling was based to a large degree on impermissible findings of fact.
Finally, the military judge’s decision to suppress the in-court identification made by KTB was not clearly erroneous. M.R.E. 321(d)(2) states “if the military judge finds the evidence of identification inadmissible ... a later identification may be admitted if the prosecution proves by clear and convincing evidence that the later identification is not the result of the inadmissible identification.” Here the military judge concluded that KTB’s in-court identification was “significantly impacted by the suggestive close-up photo.” Again, even if reasonable minds could differ about the application of the facts to the law, we cannot say that the military judge’s decision to suppress the identifications was arbitrary or fanciful.
We find that the Army court erred in finding the military judge abused his discretion when he granted the defense motion to suppress the identifications.
Conclusion
The decision of the United States Army Court of Criminal Appeals is set aside.