OPINION OF THE COURT
YOUNG, Chief Judge:
In accordance with his pleas, the appellant was convicted of two specifications of assault and one specification of failure to obey an order. Articles 128 and 92, UCMJ, 10 U.S.C. [790]*790§§ 928, 892. Contrary to his plea, the appellant was convicted of wrongful distribution of a controlled substance. Article 112a, UCMJ, 10 U.S.C. § 912a. The convening authority approved the sentence adjudged by the court members: confinement for 12 months and reduction to E-1. The appellant claims the military judge erred by denying “the defense the right to call a material witness precluding the appellant from presenting a defense.” We affirm.
The military judge did not preclude the witness from testifying. The judge merely made evidentiary rulings excluding portions of his testimony. We suspect the appellant framed the issue as a denial of a material witness to get the benefit of a more stringent harmless error test. If we were to conclude that the military judge inappropriately denied a material and relevant defense witness, the appellant’s conviction would have to be reversed unless we are convinced beyond a reasonable doubt that the error was harmless. United States v. Miller, 47 M.J. 352, 359-60 (1997). However, this Court reviews a trial judge’s rulings to admit or exclude evidence for an abuse of discretion. United States v. Ayala, 43 M.J. 296, 298 (1995). See United States v. Kindle, 45 M.J. 284, 285 (1996) (holding standard of review for admissibility of out of court statement is whether judge abused his discretion). Although we are authorized to find facts under Article 66(c), 10 U.S.C. § 866(c), we normally defer to the military judge unless his findings are clearly erroneous. See United States v. Vaughters, 42 M.J. 564, 566 (A.F.Ct.Crim. App.1995), aff'd, 44 M.J. 377 (1996). We review his conclusions of law de novo. Ayala, 43 M.J. at 298. We may not reverse unless an error “materially prejudices the substantial rights of the accused.” Article 59(a), UCMJ, 10 U.S.C. § 859(a).
I. Background
From defense counsel’s opening statement, the defense admitted that the appellant provided steroids to Senior Airman (SrA) Stachum, a government agent. But, the defense counsel insisted the appellant was not guilty of a criminal offense because he was entrapped. The defense counsel alleged the idea to transfer the steroids originated with SrA Stachum and the appellant was not predisposed to commit the offense.
SrA Stachum testified that he was a member of the Security Forces and a reserve police officer with the Mountain Home Police Department. He met the appellant while performing his police duties both on and off base, but they came to know each other personally only when the appellant moved into the Security Forces dormitory where SrA Stachum lived. Both airmen were weightlifters and their relationship revolved around that mutual interest. They had numerous conversations about techniques, supplements, and even steroids. The appellant even loaned SrA Stachum a book on steroids. Ultimately, their conversations turned to obtaining steroids. According to SrA Stachum, the appellant said “he could probably connect me with a source.” SrA Stachum contacted the Air Force Office of Special Investigations (AFOSI) about the appellant’s interest in steroids, and the AFOSI opened an investigation. On cross-examination, SrA Stachum insisted that he had never asked the appellant to get him steroids and that the plan to obtain steroids originated with the appellant.
Airman (Amn) Hillhouse, another weightlifter, told the appellant that he intended to purchase steroids while on leave. The appellant said that he would want to get some if he had the money. Amn Hillhouse purchased $300-worth of steroids for his personal use while on leave in Washington, although he was unfamiliar with how to use them. Knowing, as did many others on base, that the appellant had used steroids before entering the Air Force, Amn Hillhouse took the steroids to the base and sought the appellant’s advice on how to correctly use them. The appellant taught Amn Hillhouse how to inject himself with the steroids. After a little over two weeks, Amn Hillhouse became disillusioned with the steroids — he did not seem to be making any progress on adding muscle to his body and the steroids made him very irritable. He offered the remainder of the steroids to the appellant. The appellant told 'Amn Hillhouse he would pay $120 for the steroids. His plan was to sell the steroids to SrA Stachum with the under[791]*791standing that he could use some of them during the first week after the sale. The appellant took the steroids and sold them to SrA Stachum for the same price.
When the appellant testified, he readily admitted using steroids before he entered the Air Force. He acknowledged selling the steroids to SrA Stachum, but claimed that he only transferred the steroids as a favor for two friends (Amn Hillhouse and SrA Stachum) and to get SrA Stachum to stop pestering him about steroids. He asserted that the idea to provide the steroids originated with SrA Stachum. On cross-examination, the appellant admitted he had offered to front SrA Stachum $20 to assist him in purchasing the steroids and that he intended to share the steroids with SrA Stachum. The appellant also conceded that he had lied to several of his supervisors about prior misconduct.
II. Discussion
Airman First Class (A1C) Gilbert lived in the same dormitory as the appellant and SrA Stachum. The appellant called A1C Gilbert to testify that he had heard SrA Stachum ask the appellant “can you hook me up with steroids?” and that, prior to the appellant’s apprehension, the appellant had complained on several occasions about SrA Stachum pestering him for steroids. The prosecution objected to the testimony as inadmissible hearsay, and the military judge held an Article 39(a) session to determine whether A1C Gilbert’s testimony should be limited. During the Article 39(a) session, A1C Gilbert testified that he overheard SrA Stachum ask the appellant if he could “hook him up,” but did not hear the word steroids. Immediately thereafter, however, the appellant complained to A1C Gilbert that SrA Stachum kept bugging him about steroids. The appellant complained on several other occasions to A1C Gilbert about SrA Stachum pestering him to get steroids.
The defense theory at trial was the statements were not hearsay because they were not offered for the truth of the matter asserted. Instead, the defense asserted the statements were admissible to impeach SrA Stachum by contradicting his testimony. The defense also claimed that the prosecution attacked the appellant’s credibility during cross-examination and, therefore, A1C Gilbert’s testimony was admissible under Mil. R.Evid. 801(d)(1)(B) to rebut a charge of recent fabrication.
The military judge permitted A1C Gilbert to testify, but limited his testimony. The military judge found the “can you hook me up” statement to have marginal relevance, but excluded it because it was too remote and lacked trustworthiness-the witness was not sure about what he heard and did not hear any other part of the conversation.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION OF THE COURT
YOUNG, Chief Judge:
In accordance with his pleas, the appellant was convicted of two specifications of assault and one specification of failure to obey an order. Articles 128 and 92, UCMJ, 10 U.S.C. [790]*790§§ 928, 892. Contrary to his plea, the appellant was convicted of wrongful distribution of a controlled substance. Article 112a, UCMJ, 10 U.S.C. § 912a. The convening authority approved the sentence adjudged by the court members: confinement for 12 months and reduction to E-1. The appellant claims the military judge erred by denying “the defense the right to call a material witness precluding the appellant from presenting a defense.” We affirm.
The military judge did not preclude the witness from testifying. The judge merely made evidentiary rulings excluding portions of his testimony. We suspect the appellant framed the issue as a denial of a material witness to get the benefit of a more stringent harmless error test. If we were to conclude that the military judge inappropriately denied a material and relevant defense witness, the appellant’s conviction would have to be reversed unless we are convinced beyond a reasonable doubt that the error was harmless. United States v. Miller, 47 M.J. 352, 359-60 (1997). However, this Court reviews a trial judge’s rulings to admit or exclude evidence for an abuse of discretion. United States v. Ayala, 43 M.J. 296, 298 (1995). See United States v. Kindle, 45 M.J. 284, 285 (1996) (holding standard of review for admissibility of out of court statement is whether judge abused his discretion). Although we are authorized to find facts under Article 66(c), 10 U.S.C. § 866(c), we normally defer to the military judge unless his findings are clearly erroneous. See United States v. Vaughters, 42 M.J. 564, 566 (A.F.Ct.Crim. App.1995), aff'd, 44 M.J. 377 (1996). We review his conclusions of law de novo. Ayala, 43 M.J. at 298. We may not reverse unless an error “materially prejudices the substantial rights of the accused.” Article 59(a), UCMJ, 10 U.S.C. § 859(a).
I. Background
From defense counsel’s opening statement, the defense admitted that the appellant provided steroids to Senior Airman (SrA) Stachum, a government agent. But, the defense counsel insisted the appellant was not guilty of a criminal offense because he was entrapped. The defense counsel alleged the idea to transfer the steroids originated with SrA Stachum and the appellant was not predisposed to commit the offense.
SrA Stachum testified that he was a member of the Security Forces and a reserve police officer with the Mountain Home Police Department. He met the appellant while performing his police duties both on and off base, but they came to know each other personally only when the appellant moved into the Security Forces dormitory where SrA Stachum lived. Both airmen were weightlifters and their relationship revolved around that mutual interest. They had numerous conversations about techniques, supplements, and even steroids. The appellant even loaned SrA Stachum a book on steroids. Ultimately, their conversations turned to obtaining steroids. According to SrA Stachum, the appellant said “he could probably connect me with a source.” SrA Stachum contacted the Air Force Office of Special Investigations (AFOSI) about the appellant’s interest in steroids, and the AFOSI opened an investigation. On cross-examination, SrA Stachum insisted that he had never asked the appellant to get him steroids and that the plan to obtain steroids originated with the appellant.
Airman (Amn) Hillhouse, another weightlifter, told the appellant that he intended to purchase steroids while on leave. The appellant said that he would want to get some if he had the money. Amn Hillhouse purchased $300-worth of steroids for his personal use while on leave in Washington, although he was unfamiliar with how to use them. Knowing, as did many others on base, that the appellant had used steroids before entering the Air Force, Amn Hillhouse took the steroids to the base and sought the appellant’s advice on how to correctly use them. The appellant taught Amn Hillhouse how to inject himself with the steroids. After a little over two weeks, Amn Hillhouse became disillusioned with the steroids — he did not seem to be making any progress on adding muscle to his body and the steroids made him very irritable. He offered the remainder of the steroids to the appellant. The appellant told 'Amn Hillhouse he would pay $120 for the steroids. His plan was to sell the steroids to SrA Stachum with the under[791]*791standing that he could use some of them during the first week after the sale. The appellant took the steroids and sold them to SrA Stachum for the same price.
When the appellant testified, he readily admitted using steroids before he entered the Air Force. He acknowledged selling the steroids to SrA Stachum, but claimed that he only transferred the steroids as a favor for two friends (Amn Hillhouse and SrA Stachum) and to get SrA Stachum to stop pestering him about steroids. He asserted that the idea to provide the steroids originated with SrA Stachum. On cross-examination, the appellant admitted he had offered to front SrA Stachum $20 to assist him in purchasing the steroids and that he intended to share the steroids with SrA Stachum. The appellant also conceded that he had lied to several of his supervisors about prior misconduct.
II. Discussion
Airman First Class (A1C) Gilbert lived in the same dormitory as the appellant and SrA Stachum. The appellant called A1C Gilbert to testify that he had heard SrA Stachum ask the appellant “can you hook me up with steroids?” and that, prior to the appellant’s apprehension, the appellant had complained on several occasions about SrA Stachum pestering him for steroids. The prosecution objected to the testimony as inadmissible hearsay, and the military judge held an Article 39(a) session to determine whether A1C Gilbert’s testimony should be limited. During the Article 39(a) session, A1C Gilbert testified that he overheard SrA Stachum ask the appellant if he could “hook him up,” but did not hear the word steroids. Immediately thereafter, however, the appellant complained to A1C Gilbert that SrA Stachum kept bugging him about steroids. The appellant complained on several other occasions to A1C Gilbert about SrA Stachum pestering him to get steroids.
The defense theory at trial was the statements were not hearsay because they were not offered for the truth of the matter asserted. Instead, the defense asserted the statements were admissible to impeach SrA Stachum by contradicting his testimony. The defense also claimed that the prosecution attacked the appellant’s credibility during cross-examination and, therefore, A1C Gilbert’s testimony was admissible under Mil. R.Evid. 801(d)(1)(B) to rebut a charge of recent fabrication.
The military judge permitted A1C Gilbert to testify, but limited his testimony. The military judge found the “can you hook me up” statement to have marginal relevance, but excluded it because it was too remote and lacked trustworthiness-the witness was not sure about what he heard and did not hear any other part of the conversation. The military judge ruled the appellant’s statements to A1C Gilbert about SrA Stachum pestering him about getting him steroids were self-serving hearsay, and therefore, inadmissible.
Before this Court, the appellant reiterates his claim that the statements were not inadmissible hearsay. He again argues that the statements should be admitted, not for the truth of the matter asserted in the statements, but to contradict SrA Stachum’s testimony. He now asserts that the appellant’s statements to A1C Gilbert that SrA Stachum kept bugging him were admissible as expressions of the appellant’s state of mind under Mil.R.Evid. 803.
Relevant evidence is generally admissible except as otherwise provided by law or the Military Rules of Evidence. Mil.R.Evid. 402. Evidence is relevant if it “has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Mil.R.Evid. 401. Of course, the military judge may exclude even logically relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.” Mil.R.Evid. 403.
The appellant contends he was entrapped into distributing the steroids. Entrapment is a defense to the offense of distribution of controlled substances. R.C.M. 916(g). See United States v. Monroe, 42 M.J. 398 (1995). The appellant has the initial burden of showing that a government agent [792]*792originated the suggestion to commit the offense. The burden then shifts to the prosecution “to prove beyond a reasonable doubt that the criminal design did not originate with the Government or that the accused had a predisposition to commit the offense, ‘prior to first being approached by Government agents.’ ” United States v. Whittle, 34 M.J. 206, 208 (C.M.A.1992) (citations omitted). Accord Monroe, 42 M.J. at 402.
The Military Rules of Evidence do not expressly mention impeachment by specific contradiction. It is a common law mode of impeachment recognized in federal and military courts, and not governed by Mil.R.Evid. 608. United States v. Sojfer, 47 M.J. 425, 427 (1998) (citing United States v. Toro, 37 M.J. 313, 315 (C.M.A.1993)); United States v. Perez-Perez, 72 F.3d 224, 227 (1st Cir.1995). The rules of relevancy apply to methods of impeachment. Sojfer, 47 M.J. at 427.
Under the common law, a witness could not be impeached with extrinsic evidence of collateral facts. 1 John W. Strong et al., McCormick on Evidence § 45 (5th ed.1999). The same rule applies under the Military Rules of Evidence, but is normally couched in terms of Mil.R.Evid. 403. The military judge normally has “enormous leeway” in balancing the probative value of the evidence against the danger of unfair prejudice, confusion of the issues, or undue waste of time. United States v. Baldwin, 54 M.J. 551, 557 (A.F.Ct.Crim.App.2000) (Young, C.J., concurring) (citing Stephen A. Saltzburg et al., Military Rules of Evidence Manual 490 (4th ed.1984)). However, when impeachment by contradiction is logically relevant, it is presumptively admissible under Mil.R.Evid. 402. 1 Strong, supra at § 45.
A1C Gilbert’s testimony, that SrA Stachum asked the appellant to hook him up, was logically relevant — it had a tendency to demonstrate that the suggestion to commit the offense originated with SrA Stachum and to contradict SrA Stachum’s testimony that he never asked the appellant to get him steroids. It goes directly to the heart of the appellant’s entrapment defense. Such testimony is neither remote, nor collateral. The military judge’s conclusion that the evidence was untrustworthy was a matter better left for the court members to assess. See Saltzburg, supra at 947.
A1C Gilbert’s testimony that, immediately after SrA Stachum asked the appellant to hook him up, the appellant complained about SrA Stachum asking him to get steroids was admissible. During cross-examination of the appellant, the trial counsel questioned the appellant about previous lies to superiors and having a lot to lose in the court-martial. She suggested to court members that the appellant had a strong motive to testify falsely. Under these circumstances, A1C Gilbert’s testimony describing the appellant’s statement was not hearsay, but a prior consistent statement offered to rebut a motive to misrepresent. Mil.R.Evid. 801(d)(1)(B). The appellant’s statement to A1C Gilbert also described his state of mind. Although the appellant did not seek admission at trial on this ground, the statement would have been admissible as an exception to the hearsay rule. Mil.R.Evid. 803(3). The fact that the statement was self-serving is not a grounds to bar admission under the rule. United States v. Benson, 48 M.J. 734, 741 (A.F.Ct.Crim.App.1998).
Although the military judge erred in refusing to admit this evidence, this error does not warrant reversal of the appellant’s conviction. The appellant’s own testimony established beyond a reasonable doubt not just that he had a predisposition to use steroids, but also that he had a predisposition to distribute the steroids. The appellant freely admitted wanting to purchase the steroids from A1C Gilbert for his own personal use, but not having the money to do so. Transferring the steroids from A1C Gilbert to SrA Stachum was the means by which the appellant would accomplish his goal-getting steroids for his own personal use. He even offered to front SrA Stachum $20 of the purchase price to make sure SrA Stachum made the purchase. Under these circumstances, the military judge’s suppression of A1C Gilbert’s testimony was harmless error. Article 59(a), UCMJ.
The findings are correct in law and fact, and no error prejudicial to the substantial rights of the appellant occurred. According[793]*793ly, the findings and sentence are AFFIRMED.