United States v. Wells ( 2023 )

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 40222
________________________
UNITED STATES
Appellee
v.
DeShaun L. WELLS
Airman (E-2), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 23 May 2023
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Military Judge: Charles E. Wiedie (arraignment); Willie J. Babor (war-
rant application); Matthew N. McCall.
Sentence: Sentence adjudged 28 July 2021 by GCM convened at Royal
Air Force, Lakenheath, United Kingdom. Sentence entered by military
judge on 23 August 2021: Bad-conduct discharge, confinement for 255
days, forfeiture of all pay and allowances, and reduction to E-1.
For Appellant: Major Kasey W. Hawkins, USAF.
For Appellee: Lieutenant Colonel Thomas J. Alford, USAF; Major John
P. Patera, USAF; Captain Olivia B. Hoff, USAF; Mary Ellen Payne, Es-
quire.
Before RICHARDSON, CADOTTE, and ANNEXSTAD, Appellate Mili-
tary Judges.
Judge CADOTTE delivered the opinion of the court, in which Senior
Judge RICHARDSON and Judge ANNEXSTAD joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
United States v. Wells, No. ACM 40222
CADOTTE, Judge:
A general court-martial comprised of officer and enlisted members con-
victed Appellant, contrary to his pleas, of one specification each of assault con-
summated by a battery, obstruction of justice, and extramarital sexual con-
duct, in violation of Articles 128, 131, and 134, Uniform Code of Military Jus-
tice (UCMJ), 10 U.S.C. §§ 928, 931, 934.1,2 The members sentenced Appellant
to a bad-conduct discharge, 255 days of confinement,3 two months restriction
to the limits of Royal Air Force (RAF) Lakenheath, United Kingdom (UK), two
months hard labor without confinement, forfeiture of all pay and allowances,
and reduction to the grade of E-1. The convening authority disapproved the
adjudged restriction and hard labor without confinement, but otherwise did
not disturb the adjudged sentence.
Appellant raises seven assignments of error, which we have reworded, com-
bined, and reordered, claiming: (1) Appellant was deprived of his right to a
unanimous verdict; (2) the evidence supporting the convictions for extramari-
tal sexual conduct, assault consummated by a battery, and obstruction of jus-
tice is legally and factually insufficient;4 (3) the military judge erred by allow-
ing the victim’s counsel to deliver the victim’s unsworn statement without good
cause shown; (4) the military judge abused his discretion by permitting the
members to consider an “inappropriately inflammatory victim impact state-
ment which impeached the verdict;” and (5) Appellant’s sentence is inappro-
priately severe.
We have carefully considered issue (1) and determine no discussion or relief
is warranted. See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987). We
find no material prejudice to a substantial right of Appellant and Appellant is
not entitled to relief.
I. BACKGROUND
Appellant was assigned to RAF Lakenheath, United Kingdom. Within a
year of getting married at the age of 20 to another Air Force member, Appellant
1Unless otherwise noted, all references in this opinion to the UCMJ and Rules for
Courts-Martial (R.C.M.) are to the Manual for Courts-Martial, United States (2019 ed.)
(MCM).
2 The court members found Appellant not guilty of 12 specifications.
3 Appellant served 255 days of pretrial confinement.
4 We have combined three assignments of error raised by Appellant. Appellant raised
legal and factual insufficiency for his assault consummated by a battery and obstruc-
tion of justice convictions pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982).
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United States v. Wells, No. ACM 40222
engaged in sexual relationships with women outside his marriage, including
BF and SH. Ultimately, members found Appellant guilty of three specifica-
tions—extramarital sexual conduct involving BF, assault consummated by a
battery against SH, and obstruction of justice—which were outgrowths of these
relationships.
II. DISCUSSION
A. Legal and Factual Sufficiency
Appellant challenges the sufficiency of the extramarital sexual conduct, as-
sault consummated by a battery, and obstruction of justice convictions. We re-
solve each of these challenges adverse to Appellant and conclude the convic-
tions are legally and factually sufficient.
1. Law
We review issues of legal and factual sufficiency de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (citation omitted). “Our assess-
ment of legal and factual sufficiency is limited to the evidence produced at
trial.” United States v. Rodela, 82 M.J. 521, 525 (A.F. Ct. Crim. App. 2021) (cit-
ing United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993)), rev. denied,
82 M.J. 312 (C.A.A.F. 2022).
“The test for legal sufficiency is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” United
States v. Robinson, 77 M.J. 294, 297–98 (C.A.A.F. 2018) (quoting United States
v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017)). “[I]n resolving questions of legal
sufficiency, we are bound to draw every reasonable inference from the evidence
of record in favor of the prosecution.” United States v. Barner, 56 M.J. 131, 134
(C.A.A.F. 2001) (citations omitted). The evidence supporting a conviction can
be direct or circumstantial. See United States v. Long, 81 M.J. 362, 368
(C.A.A.F. 2021) (citing R.C.M. 918(c)) (additional citation omitted). “[A] ra-
tional factfinder[ ] [may] use [its] ‘experience with people and events in weigh-
ing the probabilities’ to infer beyond a reasonable doubt” that an element was
proven. Id. at 369 (quoting Holland v. United States, 348 U.S. 121, 140 (1954)).
The “standard for legal sufficiency involves a very low threshold to sustain a
conviction.” United States v. King, 78 M.J. 218, 221 (C.A.A.F. 2019) (internal
quotation marks and citation omitted).
“The test for factual sufficiency is whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, we are ourselves convinced of the appellant’s guilt beyond a rea-
sonable doubt.” Rodela, 82 M.J. at 525 (alterations, internal quotation marks,
and citation omitted). “In conducting this unique appellate role, we take ‘a
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United States v. Wells, No. ACM 40222
fresh, impartial look at the evidence,’ applying ‘neither a presumption of inno-
cence nor a presumption of guilt’ to ‘make [our] own independent determina-
tion as to whether the evidence constitutes proof of each required element be-
yond a reasonable doubt.’” United States v. Wheeler, 76 M.J. 564, 568 (A.F. Ct.
Crim. App. 2017), aff’d 77 M.J. 289 (C.A.A.F. 2018) (alteration in original)
(quoting Washington, 57 M.J. at 399). “The term reasonable doubt . . . does not
mean that the evidence must be free from conflict.” Id. (citing United States v.
Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986)).
a. Extramarital Sexual Conduct
For Appellant to be found guilty of the offense of extramarital sexual con-
duct, the Government was required to prove beyond a reasonable doubt that
Appellant: (1) wrongfully engaged in extramarital conduct with BF; (2) Appel-
lant knew at the time that he was married to someone else; and (3) under the
circumstances, the conduct was of a nature to bring discredit upon the armed
forces. See Manual for Courts-Martial, United States (2019 ed.) (MCM), pt. IV,
¶ 99.b.
Covered “extramarital conduct” consists of genital, oral, and anal to genital
sexual intercourse; and oral to anal sexual intercourse. MCM, pt. IV, ¶ 99.c.(2).
The President explained generally for offenses under Article 134, UCMJ: “‘Dis-
credit’ means to injure the reputation of. This clause of Article 134 makes pun-
ishable conduct which has a tendency to bring the service into disrepute or
which tends to lower it in public esteem.” MCM, pt. IV, ¶ 91.c.(3). The Presi-
dent further explained service-discrediting conduct in the context of extramar-
ital conduct:
Extramarital conduct may be Service discrediting, even though
the conduct is only indirectly or remotely prejudicial to good or-
der and discipline. “Discredit” means to injure the reputation of
the armed forces and includes extramarital conduct that has a
tendency, because of its open or notorious nature, to bring the
Service into disrepute, make it subject to public ridicule, or lower
it in public esteem. While extramarital conduct that is private
and discreet in nature may not be service discrediting by this
standard, under the circumstances, it may be determined to be
conduct prejudicial to good order and discipline.
MCM, pt. IV, ¶ 99.c.(1).
Our court recently addressed service-discrediting conduct as the terminal
element:
“Whether any given conduct [is service-discrediting] is a ques-
tion for the trier of fact to determine, based upon all the facts
and circumstances; it cannot be conclusively presumed from any
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United States v. Wells, No. ACM 40222
particular course of action.” [United States v. Phillips, 70 M.J.
161, 165 (C.A.A.F. 2011)]. “[T]he degree to which others became
aware of the accused’s conduct may bear upon whether the con-
duct is service discrediting,” but actual public knowledge is not
a prerequisite. Id. at 166. “The trier of fact must determine be-
yond a reasonable doubt that the conduct alleged actually oc-
curred and must also evaluate the nature of the conduct and de-
termine beyond a reasonable doubt that [the appellant]’s con-
duct would tend to bring the service into disrepute if it were
known.” Id. (citing United States v. Saunders, 59 M.J. 1, 11
(C.A.A.F. 2003)).
United States v. Heppermann, 82 M.J. 794, 801−802 (A.F. Ct. Crim.
App. 2022), rev. denied, 83 M.J. 103 (C.A.A.F. 2022).
b. Assault Consummated by a Battery
For Appellant to be found guilty of assault consummated by a battery, the
Government was required to prove beyond a reasonable doubt: (1) Appellant
did bodily harm to a certain person, SH; (2) the bodily harm was done unlaw-
fully; and (3) the bodily harm was done with force or violence. See MCM, pt.
IV, ¶ 77.b.(2)(a)–(c). “Bodily harm” means an offensive touching of another,
however slight. MCM, pt. IV, ¶ 77.c.(1)(a). “A battery is an assault in which the
attempt or offer to do bodily harm is consummated by the infliction of that
harm.” MCM, pt. IV, ¶ 77.c.(3)(a). “[E]ven if an alleged victim did not consent
to being touched, an accused cannot be convicted of assault consummated by a
battery if the accused mistakenly believed the alleged victim consented and
that belief was ‘reasonable under all the circumstances.’” United States v.
Mader, 81 M.J. 105, 108 (C.A.A.F. 2021) (quoting R.C.M. 916(j)(1)).
c. Obstruction of Justice
For Appellant to be found guilty of obstruction of justice, the Government
was required to prove beyond a reasonable doubt: (1) Appellant wrongfully did
a certain act; (2) did so in the case of a certain person against whom the accused
had reason to believe there were or would be criminal or disciplinary proceed-
ings pending; and (3) the act was done with the intent to influence, impede, or
otherwise obstruct the due administration of justice. See MCM, pt. IV,
¶ 83.b.(1)–(3).
2. Extramarital Sexual Conduct
a. Additional Background
In November 2019—while he was married—Appellant met a British na-
tional, BF, through the electronic dating application Tinder. BF testified that
Appellant first told her that he was divorced, but a week later said he was
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United States v. Wells, No. ACM 40222
actually in the process of getting divorced.5 Appellant and BF entered a dating
relationship, to include sexual intercourse, which lasted several months. BF
spent weekends at Appellant’s home and they discussed marriage and having
children together. BF testified that during the relationship Appellant also met
BF’s parents. In January 2020, BF discovered Appellant was not actually in
the process of divorcing his spouse. BF contacted the Appellant’s command’s
public affairs office via email and reported, inter alia, that Appellant lied to
her about being divorced. During cross-examination, BF stated her sexual re-
lationship with Appellant did not make her think less of the Service.
At trial, and in response to circuit trial counsel’s questions, BF testified
about an intimate video of her and Appellant:
Q. [D]id you ever come to learn about videos that he may have
still had in his possession after your relationship was over?
A. Yes.
Q. Can you talk to us a little bit about that?
A. It was towards the end of last year. I was having loads of
Brandon[, UK,] people request me on Instagram, local girls from
the area, and I’m not originally from the area, so it was a bit
concerning to me. So I ended up messaging one of them and I
was like, do I know you because I was concerned that something
was going around about me. She had explained that she had also
dated [Appellant]. She had told me that he had been sharing in-
timate videos of me and pictures of me with people. That’s how
I came to light on the videos that were being shared.
BF identified the person she messaged regarding the video as LW. LW, who
also had engaged in a romantic relationship with Appellant, met with BF in
person. LW described to BF a video that included BF and “mentioned a bath-
tub.” BF testified she “knew exactly what time that was because there was only
one time we had had sex in the bath.” LW also testified and explained Appel-
lant showed her the video and that afterwards she contacted BF. Later, BF
and LW went to Appellant’s home to confront him. Appellant was not home;
however, Appellant’s wife was present and they addressed the video with her
instead. The video of Appellant and BF engaging in sexual conduct was also
5 Appellant was found not guilty of the other offenses for which BF was the alleged
victim.
6
United States v. Wells, No. ACM 40222
uploaded to a publicly accessible pornographic website and viewed at least 817
times.6
b. Analysis
Appellant claims his conviction for extramarital sexual conduct is not le-
gally or factually sufficient because the Government did not prove the terminal
element of the offense—i.e., the conduct was of a nature to bring discredit upon
the armed forces. Appellant alleges “not only was there no evidence” of his con-
duct being service-discrediting, there was “actually contrary evidence.” We dis-
agree.
Appellant asks this court to distinguish his case from Phillips where the
Court of Appeals for the Armed Forces held “evidence that the public was ac-
tually aware of the conduct is not necessarily required” and “proof of the con-
duct itself may be sufficient for a rational trier of fact to conclude beyond a
reasonable doubt that, under the circumstances, it was of a nature to bring
discredit upon the armed forces.” 70 M.J. at 163. We find no reason to distin-
guish Phillips; consequently, we follow our superior court’s decision.
Appellant also focuses on BF’s testimony that Appellant’s conduct did not
adversely impact her view of the military. However, the Government does not
need to prove anyone’s “opinion of the military was lowered.” United States v.
Moore, No. ACM S32477, 2018 CCA LEXIS 560, at *21 (A.F. Ct. Crim. App. 11
Dec. 2018) (unpub. op.). Moreover, a factfinder is “not required to accept” the
views of a witness, and “could consider other evidence in determining whether
Appellant’s conduct tended to discredit the service.” Heppermann, 82 M.J. at
802.
From our review of the record, we are convinced the evidence is both legally
and factually sufficient. We find there was ample evidence for the trier of fact
to determine “beyond a reasonable doubt that [Appellant]’s conduct would tend
to bring the service into disrepute if it were known.” Saunders, 59 M.J at 1.
The evidence supports a finding that Appellant’s sexual relationship with BF
was neither private nor discreet. In fact, the evidence established Appellant
showed a video of his extramarital sexual conduct to others and it was availa-
ble to the general public to view on a website. As the video depicts Appellant
engaging in intimate sexual acts with BF, it is strong evidence of the “open or
notorious nature” of the extramarital conduct.
When viewing the evidence offered at trial in the light most favorable to
the Government, a rational factfinder could readily find the essential elements
6 Members found Appellant not guilty of a specification of indecent broadcasting in
violation of Article 120c, Uniform Code of Military Justice, 10 U.S.C. § 920c.
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United States v. Wells, No. ACM 40222
of extramarital sexual conduct beyond a reasonable doubt. We therefore con-
clude the evidence is legally sufficient to support Appellant’s conviction. Giving
the appropriate deference to the trial court’s ability to see and hear the wit-
nesses, and after our own independent review of the record, we ourselves are
convinced of Appellant’s guilt beyond a reasonable doubt. Accordingly, we also
find the evidence factually sufficient.
3. Assault Consummated by a Battery
a. Additional Background
Appellant met another British civilian, SH, on Tinder in November 2019.
After communicating with SH for several weeks, Appellant met her in person.
Appellant picked up SH and her friend from SH’s friend’s home, and they went
to Appellant’s home. SH went inside to use Appellant’s bathroom. Afterwards,
Appellant “pulled” her to the living room sofa, where she consensually per-
formed oral sex on Appellant. SH’s friend remained in Appellant’s car, then
knocked on Appellant’s door requesting to go home. The three left Appellant’s
home, and a few hours later Appellant and SH returned. Upon arriving at Ap-
pellant’s home, SH and Appellant “shot gunned” a beer together. During trial,
and in response to circuit trial counsel’s questions, SH testified about what
happened next with Appellant:
A. He pulled me into the living room just like normal, like he did
before, and he turned around and slapped me in the face.
Q. Was there any kind of a prelude to that? Had there been any
incident or disagreement with you?
A. No. Nothing.
Q. How hard did he slap you in the face?
A. Not very hard. I kind of laughed like in shock, like well kind
of and then he done it again, so I hit him back and then he hit
me again the third time like really, really hard.
Q. When you said that he hit you, are we open hand --
A. Slap.
Q. -- closed hand. It was a slap. Where did he actually hit you on
your body?
A. On my face.
Q. You said that you hit him back after the second strike.
A. Mmm-Hmm.
Q. Where did you hit him?
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United States v. Wells, No. ACM 40222
A. On the face.
Q. How did you hit him?
A. Not as hard as he hit me.
Q. I mean, closed fist, open hand?
A. Slap.
Q. You slapped him back?
A. Yes.
Q. Prior to him slapping you the first time, had you been play
fighting or --
A. No.
Q. -- any type of -- were you even -- was there any physical con-
tact?
A. No. It was just walking into the room and he just turned
around and slapped me in the face.
Q. All right. After you slapped him, was the slap that you re-
ceived significantly different than the first two even?
A. Yes, a lot harder.
Q. How did it impact you physically?
A. I felt dizzy. It just took a few seconds to actually come back in
the room. It went dark and, yes, I was very dizzy.
Q. I want to go all of the way back from the first time that you
met [Appellant] to this point, had you ever told him that you like
to be slapped or that that was okay?
A. No. Definitely not.
Q. Had you ever had a history of play fighting with him or any-
thing like that?
A. No.
Q. What happened after that more significant slap?
A. He drug me to the sofa the same way he did before, but more
aggressively. He sat down and pulled me down and forced my
head down and, yeah, forced himself inside my mouth.[7]
7Members found Appellant not guilty of a specification of a violation of Article 120,
UCMJ, 10 U.S.C. § 920, for which SH was the alleged victim.
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United States v. Wells, No. ACM 40222
Appellant was convicted of striking SH “in the face with his hand.”
b. Analysis
Appellant asserts SH “was not initially offended by the slapping, and only
became offended when necessary to make an allegation against [Appellant].”
Appellant further argues SH’s demeanor during the slapping indicates she con-
sented to the slapping, or that Appellant had an honest and reasonable mis-
take of fact as to SH’s consent to being slapped. Finally, Appellant argues SH
initiated oral sex on Appellant immediately following the slap, which illus-
trates that she was not offended by the slap. Based on the foregoing, Appellant
argues his conviction is not legally and factually sufficient. We disagree.
We find SH’s testimony describing the facts and circumstances surround-
ing Appellant’s slapping her to be compelling. SH testified Appellant “pulled
[her] into the living room . . . just like he did before, and he turned around and
slapped [her] in the face.” SH stated there was no prelude to the slap and that
she “kind of laughed like in shock.” After Appellant slapped her again, SH hit
him back and Appellant responded by hitting her “really, really hard.” SH tes-
tified that she never communicated to Appellant that she liked to be slapped,
or that she found slapping acceptable. SH explained they were not play
fighting. Based on SH’s testimony, SH was offended and did not consent to
being slapped. Likewise, the evidence also supports the conclusion that Appel-
lant did not have an honest and reasonable mistake regarding SH’s consent to
him slapping her. We see no evidence that would show Appellant honestly,
much less reasonably, believed SH wanted him to slap her in the face. We also
find no merit to Appellant’s argument that his conduct could not have been
offensive because SH performed oral sex on him after he struck her.
When viewing the evidence offered at trial in the light most favorable to
the Government, a rational factfinder could readily find the essential elements
of assault consummated by a battery—and the absence of affirmative de-
fenses—beyond a reasonable doubt. We therefore conclude the evidence is le-
gally sufficient to support Appellant’s conviction. Giving the appropriate def-
erence to the trial court’s ability to see and hear the witnesses, and after our
own independent review of the record, we ourselves are convinced of Appel-
lant’s guilt beyond a reasonable doubt and find the evidence factually suffi-
cient.
4. Obstruction of Justice
a. Additional Background
On 3 December 2020, while Appellant was in pretrial confinement, pursu-
ant to a search warrant, Air Force Office of Special Investigations (AFOSI)
agents coordinated with Appellant’s spouse to search Appellant’s home and ve-
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United States v. Wells, No. ACM 40222
hicle for electronic devices. After AFOSI agents conducted the search, Appel-
lant’s wife spoke with Appellant by phone. She explained to Appellant that
AFOSI agents were looking for electronic devices. Unfortunately for Appellant,
the phone call was being monitored by confinement facility staff, SSgt JG and
SrA TV. SSgt JG testified that Appellant asked his wife to log into his Snap-
Chat and Instagram social media accounts. The couple discussed the
usernames and passwords for the accounts. During the call, Appellant’s wife
logged into an account while Appellant instructed her to delete it. SrA TV also
overheard Appellant instruct his wife to delete conversations with some people
on his social media.
On the same day, Snapchat sent an email to Appellant that his account was
deactivated, and a follow-up email that Appellant’s account would be deleted
in 30 days.
b. Analysis
Appellant claims his conviction is not legally and factually sufficient be-
cause the Government failed to prove he had the intent to influence, impede,
or otherwise obstruct justice when he asked his wife to delete his social media
accounts and messages. We are not persuaded.
Appellant suggests it is reasonable to interpret the evidence as showing
Appellant and his wife discussed deleting their conversations only because
they did not want them read by other people. However, another reasonable
interpretation is that Appellant was asking his wife to delete evidence of his
misconduct. The sequence of Appellant’s conversation with his wife is strong
circumstantial evidence that Appellant was not merely attempting to keep
communications with his wife private. Appellant’s request to his wife to delete
digital evidence from his social media accounts took place just after she in-
formed him AFOSI had searched his home and vehicle for electronic devices.
We find there was ample evidence to support the conclusion Appellant’s intent
was to influence, impede, or obstruct AFOSI’s criminal investigation into Ap-
pellant.
When viewing the evidence offered at trial in the light most favorable to
the Government, a rational factfinder could readily find the essential elements
of obstruction of justice beyond a reasonable doubt. We, therefore, conclude the
evidence is legally sufficient to support Appellant’s conviction. Giving the ap-
propriate deference to the trial court’s ability to see and hear the witnesses,
and after our own independent review of the record, we ourselves are convinced
of Appellant’s guilt beyond a reasonable doubt.
B. Victim Impact Statement
Appellant claims the military judge erred when he allowed the victim’s
counsel for SH to deliver her unsworn victim statement without good cause
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United States v. Wells, No. ACM 40222
shown. Appellant further alleges the military judge abused his discretion when
he permitted the members to consider what Appellant characterizes as “an in-
appropriately inflammatory victim impact statement which impeached the
verdict.” Appellant asks us to set aside his sentence as a remedy. We find relief
is not warranted.
1. Additional Background
Appellant was convicted of striking SH in the face with his hand. SH’s coun-
sel presented a written three-page statement to the court and read it to the
members verbatim on SH’s behalf. Appellant’s trial defense counsel objected to
the contents of the statement, arguing, “[I]t doesn’t relate specifically to the
offense for which the accused was convicted. Instead, it’s our position that it
makes, throughout the unsworn statement, unveiled reference[s] to those
things in which the accused was acquitted of and it’s our position that that’s
improper.” Trial defense counsel further stated, “[T]his is then just a way to
shoehorn those offenses for which the accused was acquitted into the unsworn
statement, thereby, not explicitly, but it’s impeaching the verdict.”
The military judge then asked the victim’s counsel if the impact described
in the unsworn statement stemmed from the slap. In response, the victim’s
counsel stated that the statement was created after the findings and SH’s
words “directly track R.C.M. 1001(c) to discuss impact directly arising from or
directly relating to the offense.”
The military judge explained that “if the victim says this is how they have
been impacted from the slap, this is how they’ve been impacted by the slap.”
The military judge stated that he declined to be “a lie detector for the victim.”
The military judge further explained, “The victim is allowed to say what that
impact is if that’s what they feel is deriving directly relating to or arising from
that slap.” However, at the request of the military judge, some changes were
made to the original statement to replace some plural words to singular, such
as changing “choices” to “choice.”
SH’s statement, as presented to members, began, “My name is [SH] and I
thank you for the opportunity to provide this Victim Impact Statement before
the Honorable Court in accordance with my Article 6b rights. I have asked my
Special Victims’ Counsel to read this statement on my behalf.”
SH’s counsel read the following statements from SH’s victim impact state-
ment:
Beyond the physical pain that [Appellant] caused me, the deep
emotional wounds that [Appellant’s] selfish choice inflicted has
left real psychological scars.
....
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United States v. Wells, No. ACM 40222
For the longest time, I felt like I was to blame for [Appellant’s]
choice that night. The idea I had created an atmosphere where I
could be assaulted haunted me in invisible and permanent ways.
I felt completely hopeless and ashamed for letting this freakish
crime happen to me. . . . It is not my fault that [Appellant] took
this deliberate and disdainful action.
....
The trauma of [Appellant’s] violent offense has impacted my
day-to-day life in ways I never imagined.
....
When [Appellant] committed this vile act, he didn’t just steal my
peace of mind, he also stole the social and family life I cherished.
....
No one in or outside the Air Force should ever have to go through
the abuse I suffered at the hands of this arrogant and selfish
individual. No woman in Britain or America should ever be
threatened by his sick and despicable behavior ever again.
Appellant’s trial defense counsel did not object to SH’s counsel reading of
SH’s statement to the members. The military judge did not make an express
finding of “good cause” regarding SH’s counsel presenting SH’s statement on
her behalf.
2. Law
We review a military judge’s interpretation of R.C.M. 1001 de novo, but
review a decision regarding the presentation of a victim-impact statement in
presentencing for an abuse of discretion. See United States v. Hamilton, 78
M.J. 335, 340 (C.A.A.F. 2019) (considering a previous version of R.C.M. 1001);
United States v. Barker, 77 M.J. 377, 382−83 (C.A.A.F. 2018) (same).8 A mili-
tary judge abuses his discretion when he makes a ruling based on an erroneous
view of the law. Barker, 77 M.J. at 383. Similarly, “[a] military judge abuses
his discretion when his legal findings are erroneous . . . or when he makes a
clearly erroneous finding of fact.” United States v. Edwards, 82 M.J. 239, 243
(C.A.A.F. 2022) (internal citations omitted).
8 Rules addressing a victim’s right to be reasonably heard were contained in R.C.M.
1001A, Manual for Courts-Martial, United States (2016 ed.) (2016 MCM). However,
those rules are now contained in R.C.M. 1001(c). See MCM, App. 15, at A15-18 (“R.C.M.
1001(c) is new and incorporates R.C.M. 1001A of the [2016 MCM].”). Our analysis cites
to these versions as applicable.
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United States v. Wells, No. ACM 40222
When an appellant does not object to the presentation of victim matters,
we review for plain error. See United States v. Gomez, 76 M.J. 76, 79 (C.A.A.F.
2017). An appellant bears the burden of establishing: “(1) there was error; (2)
the error was clear or obvious; and (3) the error materially prejudiced a sub-
stantial right.” Id. (citation omitted). When testing for prejudice in the context
of sentencing, we determine whether the error substantially influenced the ad-
judged sentence by considering the following four factors: “(1) the strength of
the Government’s case; (2) the strength of the defense case; (3) the materiality
of the evidence in question; and (4) the quality of the evidence in question.”
Hamilton, 78 M.J. at 343 (quoting United States v. Bowen, 76 M.J. 83, 89
(C.A.A.F. 2017)). “An error is more likely to be prejudicial if the fact was not
already obvious from the other evidence presented at trial and would have pro-
vided new ammunition against an appellant.” Barker, 77 M.J. at 384 (citation
omitted). An error is more likely to be harmless when the evidence was not
“critical on a pivotal issue in the case.” United States v. Cano, 61 M.J. 74, 77−78
(C.A.A.F. 2005) (internal quotation marks and citation omitted).
Article 6b, UCMJ, 10 U.S.C. § 806b, details several rights belonging to
crime victims. Among these are the “right to be reasonably heard at . . . [a]
sentencing hearing relating to the offense.” Article 6b(a)(4)(B), UCMJ, 10
U.S.C. § 806b(a)(4)(B); see also R.C.M. 1001(c)(1) (“[A] crime victim of an of-
fense of which the accused has been found guilty has the right to be reasonably
heard at the presentencing proceeding relating to that offense.”).
“The right to make an unsworn victim statement solely belongs to the vic-
tim or the victim’s designee and cannot be transferred to trial counsel.” Ed-
wards, 82 M.J. at 241 (first citing Hamilton, 78 M.J. at 342; and then citing
Barker, 77 M.J. at 378). This right “is separate and distinct from the [G]overn-
ment’s right to offer victim impact statements in aggravation, under R.C.M.
1001(b)(4).” Id. (quoting Barker, 77 M.J. at 378). “Upon good cause shown, the
military judge may permit the crime victim’s counsel . . . to deliver all or part
of the crime victim’s unsworn statement.” R.C.M. 1001(c)(5)(B).
Notwithstanding a victim’s right to be reasonably heard, a military judge
has the responsibility to “[e]nsure that the dignity and decorum of the proceed-
ings are maintained,” and “exercise reasonable control over the proceedings[.]”
R.C.M. 801(a)(2)–(3); see also LRM v. Kastenberg, 72 M.J. 364, 372 (C.A.A.F.
2013) (noting a victim’s “right to a reasonable opportunity to be heard on fac-
tual and legal grounds” is “subject to reasonable limitations and the military
judge retains appropriate discretion under R.C.M. 801”).
“The crime victim may make an unsworn statement and may not be cross-
examined on it by trial counsel, defense counsel, or the court-martial. The pros-
ecution or defense may, however, rebut any statements of fact therein. The
unsworn statement may be oral, written, or both.” R.C.M. 1001(c)(5)(A). “The
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United States v. Wells, No. ACM 40222
content of [sworn and unsworn victim statements] may only include victim im-
pact and matters in mitigation.” R.C.M. 1001(c)(3).
3. Analysis
a. Victim’s Counsel Reading Victim’s Unsworn Statement
Appellant first raises whether the military judge erred by allowing special
victims’ counsel to deliver SH’s unsworn statement aloud to the court mem-
bers. Since Appellant did not object, we review for plain error. We begin our
analysis with the presumption the military judge knew and followed the law,
including when and how to apply the standard of whether good cause was
shown. See United States v. Erickson, 65 M.J. 221, 224 (C.A.A.F. 2007) (“Mili-
tary judges are presumed to know the law and to follow it absent clear evidence
to the contrary.”). Here, the record is clear this military judge was familiar
with R.C.M. 1001(c), and we see no indication that the military judge failed to
consider and find “good cause” before allowing the special victims’ counsel to
read the victim’s statement to the members after SH specifically requested her
counsel deliver it on her behalf. Furthermore, even if we assume the military
judge committed error, we find no prejudice.
In this case, we find counsel’s reading of the victim’s statement provided no
“new ammunition” against Appellant. See Barker, 77 M.J. at 384. Appellant
argues that because SH did not personally deliver her statement, members
were unable to evaluate her credibility and whether her delivery was with gen-
uine emotion. We note, however, that SH already had testified during findings,
so the members were familiar with her recitation of the facts of the case and
her demeanor in describing them. We find Appellant’s argument in that deliv-
ery of SH’s statement by her counsel provided “new ammunition” against Ap-
pellant because SH did not personally deliver her statement—resulting in
members being unable to observe and evaluate SH’s credibility—without
merit. SH was within her right to have presented the written statement alone
without members having an opportunity to view SH’s delivery of it. We find
SH’s counsel simply reading the written document to the court members did
not amount to any significant addition to, or expansion of, the statement. Cf.
Edwards, 82 M.J. at 246 (finding that in producing a victim-impact video con-
taining images and music, “trial counsel made creative and organizational de-
cisions that . . . incorporated her own personal artistic expression,” and thereby
“misappropriate[d] the victim’s right to be heard”). Any error here was not prej-
udicial because it “did not involve the subject matter, but rather the form in
which it was presented.” See United States v. Kerr, 51 M.J. 401, 406 (C.A.A.F.
1999).
We further find special victims’ counsel reading aloud the victim unsworn
statement had no substantial influence on the sentence. This reading did not
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United States v. Wells, No. ACM 40222
change the strength of the parties’ cases.9 The readings were not an improper
government attempt to “slip in evidence in aggravation that [ ] would otherwise
be prohibited by the Military Rules of Evidence.” Hamilton, 78 M.J. at 342.
Had the victim personally read her statement to the members, she may have
imparted more emotion than counsel, whose reading did not add substance to
the words on the page. We are not convinced Appellant suffered any prejudice
when special victims’ counsel read SH’s victim statement aloud to the court
members in this case. Finding no prejudicial error, we decline to grant relief
on this issue.
b. Content of Victim Impact Statement
Appellant argues the military judge abused his discretion when he permit-
ted the members to consider what he calls an inappropriately inflammatory
victim impact statement which impeached the verdict. We are not persuaded.
The military judge did not abuse his discretion when he allowed SH’s victim
impact statement to be presented to members in accordance with R.C.M. 1001.
The military judge clearly applied the correct law, specifically considering “the
parameters of R.C.M. 1001 and what is proper for a victim impact statement.”
The military judge’s ruling is supported by the record; SH’s statement is writ-
ten such that her claimed impact can be attributed to the single offense against
her for which Appellant was found guilty. The military judge reasonably con-
cluded that, on its face, SH’s statement did not refer to matters for which Ap-
pellant was found not guilty, and consequently, the statement did not impeach
the verdict. The military judge’s legal findings were not erroneous and he did
not make a clearly erroneous finding of fact. Edwards, 82 M.J. at 243. We find
the military judge did not abuse his discretion.
C. Sentence Severity
Appellant claims his sentence is inappropriately severe considering the na-
ture and seriousness of the offenses of which he was convicted. Appellant char-
acterizes these offenses as “low-level” and, according to him, “routinely dis-
posed of via summary courts-martial or nonjudicial punishment.”10 Appellant
9 The victims were not parties, and their unsworn statements were not part of the
Government’s case. See Edwards, 82 M.J. at 245; L.R.M., 72 M.J. at 368 (finding the
victim was a “nonparty to the court[ ]-martial”). We acknowledge, however, that the
content of these statements favored the Government.
10 Appellant also argued we should engage in sentence comparison under United States
v. Lacy, 50 M.J. 286 (C.A.A.F. 1999), as a result of LW receiving a letter of counseling
for her participation in obstruction of justice with Appellant. We have carefully con-
sidered this issue and determine no discussion or relief is warranted. See Matias, 25
M.J. at 361. We find that Appellant is not entitled to relief.
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United States v. Wells, No. ACM 40222
argues, consequently, “the punitive discharge and lengthy confinement ad-
judged in this case are inapposite.” We disagree and find no relief is war-
ranted.11
We review sentence appropriateness de novo. United States v. Lane, 64
M.J. 1, 2 (C.A.A.F. 2016). We “may affirm only such findings of guilty and the
sentence or such part or amount of the sentence, as [we] find correct in law and
fact and determine[ ], on the basis of the entire record, should be approved.”
Article 66(c), UCMJ. “We assess sentence appropriateness by considering the
particular appellant, the nature and seriousness of the offense[s], the appel-
lant’s record of service, and all matters contained in the record of trial.” United
States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009) (per curiam)
(citations omitted). While we have great discretion in determining whether a
particular sentence is appropriate, we are not authorized to engage in exercises
of clemency. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
Appellant contends the adjudged bad-conduct discharge and 255 days of
confinement are excessive. We disagree and do not find Appellant’s sentence
inappropriately severe considering the maximum punishment available and
the record before us. The maximum sentence available for the offenses for
which Appellant was convicted was a dishonorable discharge, six years and six
months of confinement, forfeiture of all pay and allowances, reduction to the
grade of E-1, and a reprimand. Appellant not only committed an offense involv-
ing physical violence and participated in an open and notorious extramarital
affair, but to cover up these crimes, he requested his wife destroy digital evi-
dence. We have given full individualized consideration to Appellant and to the
appropriateness of his sentence. After careful consideration of the matters con-
tained in the record of trial which were before the members, the nature and
seriousness of Appellant’s offenses, and his record of service, we find the sen-
tence is not inappropriately severe.
III. CONCLUSION
The findings and sentence as entered are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d).
11We have carefully considered all claims Appellant raised in assignment of error (5);
some warrant discussion, but none warrant relief. See Matias, 25 M.J. at 361.
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United States v. Wells, No. ACM 40222
Accordingly, the findings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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