United States v. Mooty

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
________________________

No. ACM 24003
________________________

UNITED STATES
Appellee
v.
Christopher P. MOOTY II
Airman First Class (E-3), U.S. Air Force, Appellant
________________________

Appeal from the United States Air Force Trial Judiciary 1
Decided 17 July 2025
________________________

Military Judge: Bradley J. Palmer.
Sentence: Sentence adjudged 7 June 2023 by SpCM convened at Royal
Air Force Alconbury, United Kingdom. Sentence entered by military
judge on 5 July 2023: Hard labor without confinement for 20 days, re-
duction to E-2, and a reprimand.
For Appellant: Major Megan R. Crouch, USAF; Major Jennifer M. Har-
rington, USAF.
For Appellee: Lieutenant Colonel J. Peter Ferrell, USAF; Lieutenant
Colonel Jenny A. Liabenow, USAF; Major Jocelyn Q. Wright, USAF;
Mary Ellen Payne, Esquire.
Before JOHNSON, GRUEN, and MENDELSON, Appellate Military
Judges.
Judge MENDELSON delivered the opinion of the court, in which Chief
Judge JOHNSON and Judge GRUEN joined.
________________________

1 Appellant appeals his conviction under Article 66(b)(1)(A), Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 866(b)(1)(A), Manual for Courts-Martial, United States
(2024 ed.).
United States v. Mooty, No. ACM 24003

This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
MENDELSON, Judge:
A special court-martial consisting of a military judge convicted Appellant,
contrary to his pleas, of one specification of drunken operation of a vehicle, in
violation of Article 113, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 913.2 The military judge sentenced Appellant to hard labor without confine-
ment for 20 days, reduction to E-2, and a reprimand. The convening authority
took no action on the findings or sentence.
Appellant raises two issues on appeal, which we restate as: (1) whether the
finding of guilty is factually sufficient; and (2) whether referral of this case to
the forum of a military judge alone special court-martial violates the Due Pro-
cess Clause of the Fifth Amendment.3
Additionally, we specified the following issue: (3) whether, in light of
Hemphill v. New York, 595 U.S. 140 (2022), the military judge violated Appel-
lant’s Sixth Amendment4 right to confrontation by admitting testimonial hear-
say after finding the Defense opened the door to the admission of the evidence,
and if so, whether Appellant is entitled to relief.
With respect to issue (3), we find error that materially prejudices Appel-
lant’s substantial rights. Articles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a),
866(d). Accordingly, we set aside the findings and the sentence and authorize
a rehearing. Given our resolution of issue (3), no discussion is warranted for
issues (1) and (2).5

2 Unless otherwise noted, references in this opinion to the UCMJ are to the Manual

for Courts-Martial, United States (2019 ed.) (MCM).
3 U.S. CONST. amend. V.

4 U.S. CONST. amend. VI.

5 We note this opinion is issued more than 18 months after Appellant’s case was dock-

eted with this court, which constitutes a facially unreasonable delay. See United States
v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). Because we set aside the findings and
sentence on other grounds, we find it unnecessary to further address this issue in this
opinion.

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United States v. Mooty, No. ACM 24003

I. BACKGROUND
A. The Night in Question
The charge stems from a night that Appellant spent out with two friends
from his unit, Senior Airman (SrA) JE and SrA TTH. The night began with
Appellant leaving his car parked at SrA JE’s house before meeting SrA JE and
SrA TTH at a pub in Newmarket, United Kingdom, between 2200 and 2230
hours on 3 March 2023. According to SrA TTH, Appellant had about two to
three bottles of beer at the pub. After spending approximately two hours at the
pub, the group took a taxi to a club where Appellant had approximately two to
three mixed drinks. After about two hours at the club, the group then took
another taxi to SrA JE’s home in Bury Saint Edmunds, United Kingdom, about
23 minutes away.
The group spent about half an hour at SrA JE’s home before deciding they
were hungry and wanted to get something to eat. At that point, at about 0400
to 0430 hours on 4 March 2023, Appellant drove the group in his car to a kebab
shop about 10 to 15 minutes away. While driving, Appellant received Insta-
gram6 messages on his cell phone from RH, a woman who was “not necessarily”
his girlfriend but who was in “some type of relationship” with him. Appellant
handed his phone to SrA TTH and asked him to type out a response to RH
explaining that Appellant was driving at the moment. RH responded accusing
Appellant of driving drunk and threatening to report him. After getting ke-
babs, Appellant dropped his two friends off at SrA JE’s house and left.
According to SrA TTH—the only testifying witness at trial who saw Appel-
lant that night—when Appellant drove from SrA JE’s house to the kebab shop
and back, Appellant was not showing any signs of intoxication. Specifically,
Appellant did not look intoxicated, was walking normally, was speaking nor-
mally, and was driving normally. In contrast to Appellant, SrA TTH could tell
that SrA JE was intoxicated.
B. RH’s Report that Appellant Drove Drunk
RH sent a message to the Royal Air Force Mildenhall Public Affairs office
alleging Appellant drove drunk from Newmarket to Bury Saint Edmunds,
United Kingdom, referring to the night in question. The message was for-
warded to Appellant’s commander, who in turn forwarded it to Appellant’s
First Sergeant, Senior Master Sergeant (SMSgt) GH, to “look into” the matter.
During the investigation, SMSgt GH exchanged emails with RH. In the
email exchange, SMSgt GH explained that he was reaching out regarding RH’s

6 Instagram is a social networking application that includes a private messaging fea-

ture between users.

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United States v. Mooty, No. ACM 24003

message that Appellant drove drunk and confirmed with RH that she agreed
to use email as “official communication.” SMSgt GH requested additional evi-
dence and asked RH what outcome she was seeking by making the report. In
response, RH provided screenshots of Instagram messages she exchanged with
Appellant, answered questions, stated she wanted Appellant to have conse-
quences for his actions, and referred to Appellant as a criminal.
SMSgt GH asked RH whether Appellant told her how much he drank and
whether she saw him that night. RH responded by stating: “[Appellant] did not
tell me how much he drank but yes I saw him and I have seen him under the
influence before but this time was genuinely the most drunk I’ve ever seen
him.”
C. Instagram Messages RH provided to SMSgt GH
The screenshots RH provided to SMSgt GH start with the message
SrA TTH typed on behalf of Appellant, explaining that Appellant was driving
at the moment.7 In the remainder of the messages, Appellant asks if he can
come see RH, while RH angrily accuses Appellant of driving drunk and threat-
ens to report him:
3:46[8]
[Appellant:9,10] [Appellant] is driving right now so his message
not be exactly what hes trying to say but he means
well
[RH:] HES F[**]KING WHAT
HAHAHAHAHAHAHA
Incredible
Honestly f[**]king incredible

7 With the exception of the bracketed portions, quotes from the Instagram messages

appear throughout this opinion in their original form without correction.
8 A time stamp appears at the top of each screenshot. There is no indication of time or

date next to the messages themselves.
9 The messages labeled as coming from Appellant were identified by Appellant’s profile

photo next to the start of each message. Ultimately, the messages labeled as coming
from Appellant were admitted as statements by a party-opponent, while the messages
from RH were admitted only for the effect on Appellant and not for the truth of the
matter asserted.
10 SrA TTH testified that he typed out this first message on Appellant’s phone while

Appellant was driving the group to the kebab shop.

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United States v. Mooty, No. ACM 24003

I should just tell base en
Rn
Also nothing about lying to my face is “meaning
well”

3:46
[Appellant:] Can i come see you?
I just dropped [SrA JE’s] dumb a[**] off
[RH:] Hope you get caught
After f[**]king screaming about it so much
You actually do itm
Unreal
Youre f[**]king unbelievable
[Appellant:] Yeah i understand. If you cba to see me
[RH:] Not like you can go back to base [clown emoji]

3:47
[Appellant:] I can stay here. I would just rather see you
[RH:] Then come here
Why the f[**]k did you drive
[Appellant:] Because [SrA JE] is a f[**]king retard
[RH:] Oh yes let’s blame the passenger shall we
[Appellant]: And he got lost somewhere in bury
[RH:] One word: taxi
[Appellant]: Im not blaming him im telling you whats goong on

3:47
[RH:] Two words: google maps
[Appellant:] Hes pissed rn
[RH:] SO ARE YOU
AMD YOU F[**]KING DROVE

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United States v. Mooty, No. ACM 24003

YET YOU WOULDNT COME AND SEE ME AF-
TER ONE BOTTLE
No f[**]king offence mate but even if my dear old
nan was lost I wouldn’t be f[**]king driving
[Redacted message11]

3:47
[Appellant:] Youre right
[RH:] Anyway thanks for the proof I can show your boss
:)
[Appellant:] Im just trying to be superman
[Crying emoji]
If youre gonna incriminate me then just get it over
with.

7:35
[RH:] So
I’m gonna try again
[Appellant]
Do you remember drunk driving to my house
[Appellant:] Yes whats going on
D. The interview
On 8 March 2023, SMSgt GH conducted an interview of Appellant to inves-
tigate RH’s allegation. Master Sergeant (MSgt) JC and MSgt SC were also pre-
sent to observe the interview.
At the outset of the interview, Appellant was advised that the command
received an allegation, and Appellant was shown a pre-filled Air Force (AF)

11 The military judge ruled this portion of the text inadmissible under Mil. R. Evid.

403.

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United States v. Mooty, No. ACM 24003

Form 1168, Statement of Suspect/Witness/Complainant,12 stating he was sus-
pected of the offense of “Article 113 – Drunken or reckless operation of a vehi-
cle, aircraft, or vessel.” The interviewers “walked through” the AF Form 1168
with Appellant, to include the portion on the form stating the offense he was
suspected of and his right to request a lawyer at any time during the interview.
The first question posed to Appellant was whether he “operated a motor
vehicle within the last week with alcohol in his system” or “have you operated
a vehicle after drinking alcoholic beverages?”13 Appellant initially responded,
“No.” Appellant was then asked “if he had any idea why someone would make
an allegation of him operating a motor vehicle under the influence of alcohol,”
to which he responded he did not know. MSgt SC testified that when Appellant
was asked about what he did the prior weekend, “[Appellant] said that he had
gone out to a pub with friends, had a beer. That he had gone to get food, gone
to a club, had a few vodka Red Bulls there, and then split a taxi ride home.”
MSgt SC clarified, “To the best of my knowledge, [Appellant] stated that he
had had one beer at the pub, and two to three vodka Red Bulls at the club.”
Appellant was then asked again “why he thought someone would report
him.” Appellant again responded that he did not know why. At that point, Ap-
pellant was shown the screenshots that RH emailed to SMSgt GH.
After the Instagram messages were read to Appellant, SMSgt GH asked
Appellant if he had any comments to make. Appellant responded, “[N]o, I’d like
to talk to someone.” SMSgt GH then asked Appellant to clarify what he meant
by his statement that he would like to talk to someone. According to MSgt SC’s
testimony at trial, Appellant then responded: “[Y]ou clearly have all the evi-
dence you need. I’m not going to hide anything, yes I did.” According to
MSgt JC’s testimony at trial, Appellant responded, “[W]hat’s the point, you
know I did it.”
E. Military Judge’s Initial Ruling Excluding RH’s Out-of-Court State-
ments
RH was issued a summons to testify at trial but refused to appear. Trial
defense counsel filed a pretrial motion to suppress RH’s out-of-court state-
ments made in her email communications with SMSgt GH, including the

12 The principal purpose of the form is to record information and details of criminal

activity which may require investigative action by commanders, supervisors, Air Force
entities conducting law enforcement functions, and to provide information to appropri-
ate individuals within Department of Defense organizations who ensure proper legal
and administrative action is taken.
13 Only MSgt SC and MSgt JC testified during trial, and each testified to slightly dif-

ferent wording of the first question Appellant was asked.

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United States v. Mooty, No. ACM 24003

statement that Appellant was “the most drunk I’ve ever seen him.” The mili-
tary judge ruled that RH’s unconfronted statements were testimonial and thus
excluded them under the Confrontation Clause.
F. Military Judge’s Subsequent Ruling that the Defense Opened the
Door to RH’s Out-of-Court Statement
At trial, the defense theory was that the Government presented no evidence
that the level of intoxication was sufficient to impair the rational and full ex-
ercise of Appellant’s mental or physical capabilities, a required element of the
sole offense of drunken operation of a vehicle. In line with the defense theory,
during cross-examination of MSgt SC, trial defense counsel asked a series of
questions eliciting testimony that there were no reports of Appellant display-
ing specific signs of impairment, such as driving poorly, slurred speech, or
bloodshot eyes:
[Trial Defense Counsel (DC)]: . . . So, I want you to answer what
you know or what you don’t know and not anything that’s in the
mind of anyone else OK?
[MSgt SC]: Okay.
[DC]: You received no report saying that [Appellant] failed to
yield, correct?
[MSgt SC]: No.
[DC]: You received no report that he took too long to stop, cor-
rect?
[MSgt SC]: No.
[DC]: You received no report that he was running over the curb,
correct?
[MSgt SC]: No.
[DC]: You received no report that [Appellant] was making extra
wide turns on the road, isn’t that correct?
[MSgt SC]: That’s correct, I did not receive a report like that.
[DC]: And you received no report from any witness or infor-
mation that [Appellant] was slurring his words, correct?
[MSgt SC]: I did not.
[DC]: You received no information or report that [Appellant] had
bloodshot eyes, correct?
[MSgt SC]: I did not.

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United States v. Mooty, No. ACM 24003

[DC]: And you received no information or report that [Appellant]
smelled of alcohol, correct?
[MSgt SC]: I did not.
At that point, trial counsel objected to the line of questioning on the basis
that it called for evidence of whether Appellant displayed signs of “drunken-
ness” while the military judge’s earlier ruling precluded discussion of RH’s
statement that Appellant was drunk. Trial counsel argued that MSgt SC’s an-
swers were “trying to avoid the fact that he’s aware of the report he did receive
of those same things.” The military judge overruled the objection. However, the
military judge also instructed MSgt SC that if defense counsel “[a]sks you a
question that you believe calls for information that you may have seen from
[RH] . . . [y]ou can answer that question.” The military judge reasoned that
trial defense counsel can waive their objection to RH’s statement, and further
instructed that trial counsel would be allowed the opportunity to “clarify”
MSgt SC’s responses to the Defense’s line of questioning.
On redirect examination, trial counsel asked MSgt SC, “[W]ere any of your
answers just now affected by the fact that you were under the impression
you’re not allowed to talk about allegations you may or may not have received
from [RH]?” MSgt SC answered that he would have responded differently to
the question of whether there was a report of Appellant having bloodshot eyes
based on the statement in RH’s email concerning her perception of how drunk
Appellant was. Trial defense counsel objected, and after hearing argument
from both sides, the military judge ruled that trial defense counsel’s question-
ing—specifically concerning whether the witness received any information or
report that Appellant had bloodshot eyes—opened the door to RH’s testimonial
hearsay that had been previously excluded. Specifically, the military judge rea-
soned:
I’m not finding that there’s been some big door open to every
statement [RH] made but with regards to that specific question
that defense counsel answered [sic]. The witness may answer
what – with what he believed to be responsive. Even though that
evidence had previously been excluded. Because the right to con-
frontation is the accused’s right. And there was a question by
defense counsel that arguably called for that particular answer.
The military judge then re-asked the witness the question, “Did you receive
any reports or information that [Appellant] had bloodshot watery eyes?” The
witness responded:
Your Honor, thank you. Command received an e-mail from [RH].
That stated something to the effect of that she had – had seen
him intoxicated, or other people intoxicated. And he was more

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United States v. Mooty, No. ACM 24003

drunk, or something to that effect. If I could see the e-mail, I
could speak to it clearly but.
The military judge interjected, “So at this point we’re going to – we’ll rest
on that particular answer. I’m not going to go any further. So, I’m going to
allow that answer and I will consider that answer.”

II. DISCUSSION
The admission of MSgt SC’s testimony—recounting RH’s out-of-court state-
ment to the effect that Appellant was more drunk than she had ever seen him
before—violated Appellant’s Sixth Amendment right to confrontation. The er-
ror was not harmless beyond a reasonable doubt.
A. Law
We review a military judge’s ruling on the admission or exclusion of evi-
dence for an abuse of discretion. United States v. Katso, 74 M.J. 273, 278
(C.A.A.F. 2015) (footnote omitted).
“In all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” U.S. CONST. amend. VI. The
United States Supreme Court has held that ‘“the text of the Sixth Amend-
ment does not suggest any open-ended exceptions from the confrontation re-
quirement to be developed by the courts” but rather the requirement “is most
naturally read as a reference to the right of confrontation at common law, ad-
mitting only those exceptions established at the time of the founding.” Craw-
ford v. Washington, 541 U.S. 36, 53 (2004) (citation omitted). As such, “[t]esti-
monial statements of witnesses absent from trial have been admitted only
where the declarant is unavailable, and only where the defendant has had a
prior opportunity to cross-examine.” Id. at 59 (2004) (footnote omitted). “[A]
statement is testimonial if ‘made under circumstances which would lead an
objective witness reasonably to believe that the statement would be available
for use at a later trial.’” United States v. Sweeney, 70 M.J. 296, 301 (C.A.A.F.
2011) (quoting United States v. Blazier, 68 M.J. 439, 442 (C.A.A.F. 2010)). “To
rank as testimonial, a statement must have a primary purpose of establishing
or proving past events potentially relevant to later criminal prosecution.” Bull-
coming v. New Mexico, 564 U.S. 647, 659 n.6 (2011) (internal quotation marks
and citations omitted).
While “in certain circumstances, defense counsel may waive constitutional
rights on behalf of their clients,” “the Supreme Court long ago . . . stat[ed] that
there is ‘a presumption against the waiver of constitutional rights.’” United
States v. Harcrow, 66 M.J. 154, 157 (C.A.A.F. 2008) (quoting Brookhart v.
Janis, 384 U.S. 1, 4 (1966) (citing Glasser v. United States, 315 U.S. 60, 70–71
(1942)). “Waiver can occur either by operation of law,” such as an unconditional

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United States v. Mooty, No. ACM 24003

guilty plea, “or by the ‘intentional relinquishment or abandonment of a known
right.’” United States v. Jones, 78 M.J. 37, 44 (C.A.A.F. 2018) (quoting Sweeney,
70 M.J. at 303) (citing United States v. Hardy, 77 M.J. 438, 441–42 (C.A.A.F.
2018)). The Supreme Court has held that waiver need not be express; an im-
plied waiver can be established through a “course of conduct indicating
waiver.” Berghuis v. Thompkins, 560 U. S. 370, 383–84 (2010) (quoting North
Carolina v. Butler, 441 U. S. 369, 373 (1979)).
The Supreme Court more recently addressed the issue of whether the de-
fense waives the right to confrontation by “opening the door” to testimonial
hearsay to correct a misleading impression created by the defense theory.
Hemphill v. New York, 595 U.S. 140 (2022). While “the Sixth Amendment
leaves . . . flexibility to adopt reasonable procedural rules governing the exer-
cise of a defendant’s right to confrontation,” the Court clarified that it “has not
held that defendants can ‘open the door’ to violations of constitutional require-
ments merely by making evidence relevant to contradict their defense.” Id. at
151, 154. The Court explained that the Sixth Amendment right to confronta-
tion “admits no exception for cases in which the trial judge believes uncon-
fronted testimonial hearsay might be reasonably necessary to correct a mis-
leading impression.” Id. at 154. The Court held that the admission of “uncon-
fronted, testimonial hearsay against [the defendant] simply because the judge
deemed his presentation to have created a misleading impression that the tes-
timonial hearsay was reasonably necessary to correct” was “antithetical to the
Confrontation Clause.” Id. at 153.14 Trial judges, however, are not left without
recourse to protect against misleading evidence, as a trial judge “generally re-
tains the authority to withdraw it, strike it, or issue a limiting instruction as
appropriate.” Id. at 155.15
Where a Confrontation Clause objection is preserved and there is error, re-
lief will be granted unless the error was harmless beyond a reasonable doubt,
considering such factors as: (1) “the importance of the unconfronted testimony
in the prosecution’s case;” (2) “whether that testimony was cumulative;” (3)
“the existence of corroborating evidence;” (4) “the extent of [cross-examination]
permitted;” and (5) “the strength of the prosecution’s case.” Sweeney, 70 M.J.
at 306 (citing Delaware v. Van Arsdall, 475 U.S. 673, 683 (1986)).

14 The Court left open the question of the validity of the common-law rule of complete-

ness as applied to testimonial hearsay. Id. at 155.
15 “[W]ell-established rules,” such as Military Rule of Evidence 403, “permit trial judges

to exclude evidence if its probative value is outweighed by certain other factors such
as unfair prejudice, confusion of the issues, or potential to mislead the jury.” Id. at 155
(internal quotation marks omitted) (quoting Holmes v. South Carolina, 547 U.S. 319,
326 (2006)).

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The inquiry for determining whether constitutional error
is harmless beyond a reasonable doubt is whether, beyond a rea-
sonable doubt, the error did not contribute to the defendant’s
conviction . . . . An error is not harmless beyond a reasonable
doubt when there is a reasonable possibility that the error com-
plained of might have contributed to the conviction.
United States v. Hills, 75 M.J. 350, 357 (C.A.A.F. 2016) (internal quotation
marks and citations omitted). The party benefiting from a constitutional error
bears the burden of demonstrating the error was harmless beyond a reasonable
doubt. United States v. Kreutzer, 61 M.J. 293, 300 (C.A.A.F. 2005) (citing Chap-
man v. California, 386 U.S. 18, 24 (1967)).
B. Analysis
As an initial matter we note that the military judge found RH’s out-of-court
statement characterizing Appellant as “the most drunk” she had ever seen him
to be a testimonial statement, and the Government does not challenge that
finding on appeal. We agree that RH’s statement has all the indicia of a testi-
monial statement: in messaging Appellant on the night in question, RH ac-
cused Appellant of driving drunk and told Appellant she had “proof” to report
to his “boss;” RH followed through with her threat to report Appellant by send-
ing a message to the base stating that Appellant drove drunk; RH told SMSgt
GH that she wanted Appellant to face consequences for his actions and referred
to Appellant as a criminal; and RH provided the statement at issue in response
to SMSgt GH’s request for additional evidence regarding her report. We have
no hesitation in finding RH’s statement had “a primary purpose of establishing
or proving past events potentially relevant to later criminal prosecution.” Bull-
coming, 564 U.S. at 659 n.6 (2011) (internal quotation marks and cita-
tions omitted).
The military judge initially suppressed RH’s statement on the basis that it
amounted to testimonial hearsay and RH was not available for cross-examina-
tion. However, during trial the military judge later found that the Defense
opened the door to RH’s testimonial hearsay when the Defense cross-examined
MSgt JC on whether he had received any information or report of Appellant
displaying specific signs of impairment while driving on the night in question—
such as a failure to yield, taking too long to stop, driving over the curb, taking
a wide turn, slurring his words, having bloodshot eyes, or smelling of alcohol.
In making his ruling, the military judge specifically focused on the question of
whether MSgt JC had received any information or report that Appellant had
bloodshot eyes. The military judge found that specific question opened the door
to RH’s testimonial hearsay because it “arguably called for that particular an-
swer,” and noted that the Defense can waive their Confrontation Clause objec-
tion.

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United States v. Mooty, No. ACM 24003

The military judge abused his discretion in finding waiver based on a the-
ory that the defense questioning opened the door or “called for” the testimonial
hearsay of RH. It is undisputed that the Defense maintained their objection to
the testimonial hearsay, and at no point did the Defense intentionally relin-
quish or abandon the right to confrontation. See Jones, 78 M.J. at 44; Sweeney,
70 M.J. at 303. Likewise, the Defense did not engage in a “course of conduct
indicating waiver.” Berghuis, 560 U. S. at 384. The line of cross-examination
supported the defense theory that there is no evidence of intoxication sufficient
to impair the rational and full exercise of mental or physical capabilities, a
required element of the offense. The questions were narrowly tailored to spe-
cific signs of impairment, and RH’s statement did not report any of the specific
signs of impairment that the Defense inquired about. The circumscribed line
of questioning did not “call for” RH’s conclusory accusation characterizing Ap-
pellant as “drunk.”
In allowing the witness to “clarify” his response by testifying to RH’s state-
ment, it appears the military judge’s concern was that the defense theory and
line of questioning created a misleading impression that no one reported that
Appellant appeared “drunk” on the night in question. The Supreme Court has
made clear that the admission of unconfronted testimonial hearsay to correct
a misleading impression is “antithetical to the Confrontation Clause.”
Hemphill, 595 U.S. at 153. The defense cannot “‘open the door’ to violations of
constitutional requirements merely by making evidence relevant to contradict
their defense.” Id. at 154. As Hemphill explains, the military judge retained
authority to protect against misleading evidence by striking the testimony, but
had no authority to violate the constitutional requirement of confrontation. Id.
Having found that the admission of the testimonial hearsay violated Ap-
pellant’s right to confrontation, we must now determine whether that consti-
tutional error was harmless beyond a reasonable doubt. See Sweeney, 70 M.J.
at 306 (citing Van Arsdall, 475 U.S. at 683). We are not convinced beyond a
reasonable doubt that the error did not contribute to the verdict. See Hills, 75
M.J. at 357.
For Appellant to be convicted of the offense of drunken operation of a vehi-
cle in violation of Article 113, UCMJ, as charged, the Government was required
to prove the following elements beyond a reasonable doubt: (1) Appellant oper-
ated or was in physical control of a vehicle; and (2) that while operating or in
physical control of a vehicle, Appellant was drunk.16 MCM, pt. IV, ¶ 51.a.(a)(2).

16 The second element can alternatively be met with an alcohol concentration in the

accused’s blood or breath equal to or in excess of 0.08 grams of alcohol per 100

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United States v. Mooty, No. ACM 24003

The term “drunk” is used in relation to intoxication by alcohol and is defined
as “any intoxication which is sufficient to impair the rational and full exercise
of the mental or physical faculties.” Id. ¶ 51.b.(6).
The evidence admitted at trial consists of SrA TTH’s testimony, Appellant’s
statements in the Instagram messages with RH, Appellant’s statements made
during the interview (as testified to by MSgt JC and MSgt SC), and RH’s un-
confronted testimonial hearsay that Appellant was more drunk than she had
seen him before.
The undisputed evidence establishes that Appellant consumed alcohol and
that, after taking taxis during the night while out drinking, he then drove his
vehicle early the next morning. But the offense is not established merely by
drinking and then later driving. There must be evidence establishing beyond
a reasonable doubt that Appellant’s level of intoxication at the time he drove
was “sufficient to impair the rational and full exercise of the mental or physical
faculties.”
While it is imaginable that under some factual scenario the sheer amount
of alcohol consumed and the proximity of time might establish beyond a rea-
sonable doubt intoxication of a level sufficient to impair the rational and full
exercise of the mental or physical faculties, we do not find it to be the case here.
The drinking—anywhere between three to six drinks total—spanned over a
four-hour period, followed by a 23-minute taxi ride and then approximately 30
more minutes spent at SrA JE’s house before Appellant drove. While there is
evidence that Appellant drank beer at the first establishment and mixed vodka
cocktails at the second establishment, there is simply no evidence concerning
the actual amount of alcohol contained in each drink nor is there any evidence
relating to Appellant’s size. The evidence also lacks any expert testimony to
establish how the alcohol would have metabolized in his system over time or
how it would have impaired his faculties. Moreover, there is no evidence that
Appellant’s driving performance indicated impairment such as speeding,
swerving, or committing any traffic violations.
SrA TTH was the only eyewitness who testified at trial. SrA TTH recog-
nized that SrA JE was very drunk, but in contrast testified that Appellant did
not display any signs of impairment. According to SrA TTH, Appellant was

milliliters of blood or per 210 litters of breath, as shown by chemical analysis, or in the
case of operating a vehicle outside the United States, by such lower limit as the Secre-
tary of Defense may by regulation prescribe. MCM, pt. IV, ¶¶ 51.a.(a)(2), 51.a.(b)(1)(B),
51.a.(b)(3). However, the Government did not charge the second element with a blood
or breath alcohol concentration level, and did not introduce any evidence at trial con-
cerning a blood or breath alcohol concentration.

14
United States v. Mooty, No. ACM 24003

speaking, walking, and driving normally. It is also notable that Appellant’s
faculties were sufficient for him to realize he should not type up a response to
RH’s Instagram messages while driving—he handed his phone to SrA TTH and
dictated the response to him.
The Government contends that the offense was proven beyond a reasonable
doubt based on Appellant’s statements alone, as corroborated by the testimony
of SrA TTH. We are not convinced.
While Appellant appears to acquiesce to RH’s accusations in the Instagram
messages, the meaning of Appellant’s statements cannot be fully understood—
without any testimony clarifying the context or subtext—given the nature of
the communication. The messages are riddled with shorthand and abbrevia-
tions that are subject to multiple meanings.
There are two portions of the conversation that the Government character-
izes as an admission of being “drunk.” The first is the following:
[Appellant:] Hes pissed rn
[RH:] SO ARE YOU
AMD YOU F[**]KING DROVE
YET YOU WOULDNT COME AND SEE ME AF-
TER ONE BOTTLE
No f[**]king offence mate but even if my dear old
nan was lost I wouldn’t be f[**]king driving
[Redacted message17]
[Appellant:] Youre right
Without further clarification, it is impossible to know whether Appellant’s
statement “Youre right” was meant as “you are right, I’m pissed,” or “you are
right that I wouldn’t come and see you after one bottle,” or “you are right that
you wouldn’t drive even if your dear old nan was lost,” or whether it was a
response to the last line of RH’s message which was redacted.
The second portion the Government characterizes as an admission is Ap-
pellant’s final response at the end of the messages:
[RH:] So
I’m gonna try again

17 The military judge ruled this portion of the text inadmissible under Mil. R. Evid.

403.

15
United States v. Mooty, No. ACM 24003

[Appellant]
Do you remember drunk driving to my house
[Appellant:] Yes whats going on
Again, it is unclear which line of RH’s multiple messages Appellant re-
sponded to. There are no time stamps on the messages themselves; it is possi-
ble that Appellant typed “Yes whats going on” as a response to the first few
lines before he even read the last line of RH’s message. And even with the most
liberal reading of the messages in their full context, there is a reasonable pos-
sibility that Appellant merely acknowledged that he drove to RH’s house after
drinking on some occasion.
Perhaps the strongest evidence is the statement Appellant made at the end
of the interview after being confronted with the Instagram messages. Accord-
ing to the two versions testified to at trial, Appellant either stated: “[Y]ou
clearly have all the evidence you need. I’m not going to hide anything, yes I
did;” or, “[W]hat’s the point, you know I did it.” While Appellant was advised
at the beginning of the interview that he was suspected of the offense of “Article
113 – Drunken or reckless operation of a vehicle, aircraft, or vessel,” context
and words matter. There is no indication that Appellant was advised of the
legal definition of “drunk”—intoxication sufficient to impair the rational and
full exercise of the mental or physical faculties. SMSgt GH began questioning
Appellant by asking whether he operated a motor vehicle with alcohol in his
system or after drinking alcoholic beverages. Thus, by admitting that he “did
it,” there is a reasonable possibility that Appellant only meant that he did op-
erate a motor vehicle after drinking or with alcohol in his system. The inter-
view ended at that point, so there was no further clarification of whether Ap-
pellant admitted that his faculties were impaired at the time he drove.18
The only evidence at trial that addressed Appellant’s level of impairment
was SrA TTH’s testimony that Appellant did not display any signs of impair-
ment while driving, and RH’s statement to the effect that Appellant was more
drunk than she had ever seen him. Given the lack of other evidence indicating
that Appellant’s faculties were impaired at the time he drove, we conclude the

18 We also acknowledge that Appellant made initial statements at the outset of the

interview denying that he recently drove after drinking alcohol, but we find that those
statements are more akin to a general denial of guilt, rather than false exculpatory
statements that would infer a consciousness of guilt. See United States v. Colcol, 16
M.J. 479, 484 (C.M.A. 1983) (“unlike a false explanation or alibi given by a suspect
when he is first confronted with a crime, [a] general denial of guilt does not demon-
strate any consciousness of guilt”).

16
United States v. Mooty, No. ACM 24003

erroneous admission of the unconfronted testimonial hearsay contributed to
the conviction.

III. CONCLUSION
The findings of guilty and the sentence are SET ASIDE. A rehearing is
authorized. The record of trial is returned to The Judge Advocate General for
further proceedings consistent with this opinion. See Article 66(f), UCMJ, 10
U.S.C. § 866(f).

FOR THE COURT

CAROL K. JOYCE
Clerk of the Court

United States v. Mooty

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