United States v. Johnson ( 2023 )

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 40257
________________________
UNITED STATES
Appellee
v.
Devin W. JOHNSON
Specialist 3 (E-3), U.S. Space Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 9 August 2023
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Military Judge: Charles G. Warren.
Sentence: Sentence adjudged 30 October 2021 by GCM convened at
Schriever Space Force Base, Colorado. Sentence entered by military
judge on 20 January 2022: Bad-conduct discharge, confinement for 6
months, reduction to E-1, and reprimand.
For Appellant: Major Spencer R. Nelson, USAF; William E. Cassara,
Esquire.
For Appellee: Lieutenant Colonel Thomas J. Alford, USAF; Lieutenant
Colonel Matthew J. Neil, USAF; Lieutenant Colonel G. Matt Osborn,
USAF; Major John P. Patera, USAF; Captain Olivia B. Hoff, USAF;
Mary Ellen Payne, Esquire.
Before JOHNSON, ANNEXSTAD, and GRUEN, Appellate Military
Judges.
Senior Judge ANNEXSTAD delivered the opinion of the court, in which
Chief Judge JOHNSON and Judge GRUEN 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This is an unpublished opinion and, as such, does not serve as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. Johnson, No. ACM 40257
ANNEXSTAD, Senior Judge:
At a general court-martial, a panel of officer members convicted Appellant,
contrary to his pleas, of one specification of abusive sexual contact (Specifica-
tion 1 of the Charge), in violation of Article 120, Uniform Code of Military Jus-
tice (UCMJ), 10 U.S.C. § 920.1, 2 A military judge sentenced Appellant to a bad-
conduct discharge, confinement for six months, reduction to the grade of E-1,
and a reprimand. The convening authority took no action on the findings or
sentence.
Appellant raises seven issues which we have reordered and reworded: (1)
whether Appellant’s conviction is legally and factually sufficient; (2) whether
Appellant was convicted of an offense which he was not on notice of or charged
with; (3) whether the military judge violated the canon against surplusage and
Appellant’s due process rights by allowing the Government to argue a different
theory of liability than charged; (4) whether Appellant’s conviction is ambigu-
ous; (5) whether the military judge erred by admitting a victim impact state-
ment; (6) whether Appellant’s sentence is inappropriately severe; and (7)
whether Appellant’s reprimand contained error.3
With respect to issues (4) and (7), we have carefully considered Appellant’s
contentions and find they do not require further discussion or warrant relief.
See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987).4 We consolidate
and consider issues (2) and (3) together. Finding no error that materially prej-
udiced a substantial right of Appellant, we affirm the findings and sentence.
1 All references to the UCMJ are to the Manual for Courts-Martial, United States (2019
ed.).
2 Appellant was acquitted of one specification of abusive sexual contact (Specification
2 of the Charge) and one specification of sexual assault (Specification 3 of the Charge)
in violation of Article 120, UCMJ.
3 Issues (6) and (7) were raised pursuant to United States v. Grostefon, 12 M.J. 431(C.M.A. 1982).
4 Regarding issue (7), we find that the military judge erred when he sua sponte changed
the convening authority’s language in the reprimand in the entry of judgment. Specif-
ically, the military judge changed the convening authority’s reference to “sexual as-
sault” in the language of the reprimand to “abusive sexual contact,” based on the spe-
cific offense for which Appellant was convicted. Rule for Courts-Martial 1003(b)(1) pro-
vides “[a] court-martial shall not specify the terms or wording of a reprimand. A repri-
mand if approved, shall be issued, in writing, by the convening authority.” The Discus-
sion also makes clear that “[o]nly the convening authority may specify the terms of the
reprimand.” Having found error, we have reviewed for material prejudice to a substan-
tial right of Appellant and find none.
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I. BACKGROUND5
GH joined the Space Force in February 2020. Following basic training, she
attended technical training at Vandenberg Space Force Base (SFB) in Califor-
nia. There GH met Appellant for the first time. The two had limited interaction
as they were not in the same class. On one occasion, Appellant told GH that
she was “hot and nice to look at.” GH thought the comment was inappropriate
and reported it to her military training leadership. Appellant later apologized.
In August 2020, GH finished technical training and arrived at her first duty
station, Schriever SFB, Colorado. About three weeks later, she ran into Appel-
lant at the base computer lab. Appellant again apologized for his earlier com-
ment, and she accepted his apology. She then stated that Appellant offered to
help her get settled and volunteered to help her find a dining table, since her
household goods would not arrive for a few weeks. She accepted. That night
Appellant picked her up from her apartment, the two had dinner, and then
went shopping for a table. GH found a table she liked but did not purchase it
because it was too expensive. Appellant then offered to buy the table for her,
but she declined his offer.
A couple of days later, on 18 September 2020, GH and a friend, Specialist
(Spc) TL, were in the base computer lab discussing dinner plans. Spc TL told
GH that she had to cancel their dinner plans because her kids were sick. Ap-
pellant apparently overheard the conversation and offered to cook GH dinner
at her apartment. GH felt Appellant was just being nice, but made sure to tell
Appellant her acceptance was just “as friends.” When Appellant arrived at her
apartment around 1900 hours, he brought a rice cooker and food to make din-
ner. GH did not hug or touch him at all when he arrived. Appellant started
cooking rice and fish while they talked about GH receiving a box of clothes.
The two then decided to go to a store while the dinner was cooking to get cook-
ies for dessert.
While at the store, Appellant bought cookie dough and a 12-pack of Mike’s
Hard Lemonade. GH informed Appellant she would not permit him to “get[ ]
drunk” and stay at her apartment. She also told him she did not want to have
to drive him back to the dormitory. GH explained, “I did not want him thinking
that he would be able to just crash at my place if he would get drunk.” She did
not plan on drinking that night because “[she] didn’t want to drink with him
around. [She] didn’t want to drink by [her]self either, and [she] didn’t know
him that well, so [she] didn’t want anything to come of that.” According to GH,
they also purchased menstrual pads at the store.
5 Unless otherwise noted, the facts that follow are derived from GH’s testimony.
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When they arrived back at the apartment, Appellant finished cooking din-
ner while GH prepared to bake the cookies. She testified that when she bent
over to put the cookies in the oven, she “felt a brush against [her] butt.” She
was unsure if it was a hand or just Appellant walking by, “but to be on the safe
side [she] told him that he needed to watch himself.” Appellant apologized to
her and stated, “I’m sorry. This is a small kitchen. I was walking by and I did
not mean to.” GH did not know if it was intentional or unintentional.
GH and Appellant ate dinner on an air mattress because GH had turned
on a movie on her laptop plugged in nearby. After they finished eating, GH
took the cookies out of the oven and they continued watching the movie. Ap-
pellant had begun drinking his second drink. Appellant was on GH’s left side
on the air mattress. She said there was space between the two and they were
not touching. After dinner, GH expected she and Appellant would finish watch-
ing the movie, and he would go home.
GH fell asleep around 2100. She had been up since 0500 and was tired but
did not intend to fall asleep. Before she fell asleep, no hugging, touching, cud-
dling, or kissing of any kind occurred between her and Appellant. The only
physical touching was when Appellant touched her buttocks in the kitchen.
While she was asleep, GH faintly remembers laying on her right side and her
“left arm was being tugged.” She rolled onto her back and “brought [her] hand
over to what felt like [Appellant’s] chest, and ended up falling back asleep.”
Later, GH would be fully awoken. She explained:
I was laying on my right side, half on my stomach, I guess. I had
my arms under my pillow, and I had my right leg straight out
and my left leg kind of bent up. I felt this pressure and like this
heat on my back that was making me feel hot, and being on the
air mattress was uncomfortable. So I initially woke up to move
around and realized that I could not move around because I felt
this weight on my backside. I felt his hand in my pants, in my
underwear. I felt this fingering motion, and I felt this warmth
that felt like a penis on my back right end.
GH described that Appellant’s left hand was entering her underwear from
the back of her pants, and that Appellant’s fingers entered her vagina. GH also
said she felt warmth and pressure on her body, adding, “It was on my right
buttocks. My pants were slightly pulled down so that he would be able to have
his hand inside of my pants.” When asked if she felt Appellant’s penis, GH said,
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United States v. Johnson, No. ACM 40257
“Yes.” When asked if she believed the warmth and pressure on her buttocks,
torso, and upper thigh was from Appellant’s penis, she replied, “Yes, sir.”6
GH immediately got up and went to the bathroom. She realized her bra was
unclasped in the back and her pants were unbuttoned. GH also realized her
vagina was naturally lubricated, which, as she stated, confirmed to her what
Appellant was doing—“feeling up on me in my sleep.” GH became very upset,
went into the living room, and turned on the light. GH said Appellant was
laying on the air mattress “pretending” to sleep when she entered the room.
She sternly asked him, “Why is my bra undone,” to which Appellant replied, “I
had undone your bra in your sleep. You were laying on my chest, and I was
rubbing your back, and I thought that you would be okay with it.”
At this point, GH also realized Appellant had no shirt on. She testified, “I
told him that that was not okay with me. I was sleeping and that he shouldn't
have just assumed that something like that was okay, and that he needed to
get up, take his things[,] and get out.” As Appellant got up and was gathering
his things, GH could see that Appellant had an erection. When asked if she
remained calm or ever had to elevate the tone of her voice, GH explained that
she got very upset and told him to leave. She stated that she was crying and
yelling and at one point, she told Appellant if he did not leave she would call
the police. GH estimated about 20 minutes passed from when she initially con-
fronted Appellant to when he actually left. Appellant took his alcohol with him
but left the rice cooker.
Once Appellant was gone, GH cried for a bit and then called her longtime
friend, Mr. JT, whom she had known since high school. She spoke with Mr. JT
for about two hours and then decided to clean up, adding, “I felt gross and
wanted to go take a shower.” She eventually went to sleep around 0400 hours.
When she woke up a few hours later, around 0700 or 0800 on Saturday morn-
ing, she called Staff Sergeant (SSgt) JT, her duty sponsor, and told him what
happened the night before. SSgt JT then had the first sergeant call GH.
Later that morning, Appellant contacted GH. He apologized to GH for what
happened and said he had “no reason to not believe” her when she said that it
happened, but he did not think that he was “that type of person.”
GH spoke with the Air Force Office of Special Investigations (AFOSI) that
evening. At her apartment, AFOSI agents took pictures and gathered the shirt,
jeans, bra, underwear, and menstrual pad she was wearing the night before.
The menstrual pad collected from GH’s apartment was sent to the United
6 Appellant was acquitted of Specifications 2 and 3. Specification 2 alleged Appellant
touched GH’s torso, buttocks, and leg with his penis while GH was asleep. Specification
3 alleged Appellant penetrated GH’s vulva with his finger while GH was asleep.
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United States v. Johnson, No. ACM 40257
States Army Criminal Investigation Laboratory for testing. The results showed
a low level of male DNA on the pad. Dr. DW, a forensic biologist, conducted
DNA testing and testified that he was able to generate a partial profile “con-
sistent with the profile that was obtained from [Appellant].” Dr. DW further
testified that he compared the profile to a database to see how common or rare
that profile was in the United States population and concluded the probability
of obtaining the same partial profile at random in the United States was ap-
proximately 1 in 3,199. Dr. DW also stated the DNA profile found would be
shared by Appellant and any of his paternal male relatives.
The next day, GH submitted to a medical forensic exam lasting about two
hours. At trial, the nurse who performed the exam, Ms. MM, was recognized
as an expert in the field of forensic nursing. She testified that during the ex-
amination GH told her she woke up with Appellant’s hand in her underwear.
This statement is contained in Ms. MM’s report of the examination that was
provided to Appellant prior to trial and admitted as Prosecution Exhibit 1 with-
out objection.
Later that day, GH also conducted a pretext SnapChat conversation with
Appellant. The SnapChat conversation was admitted as a prosecution exhibit
during GH’s testimony. GH testified that during the conversation Appellant
never claimed he thought she was awake and participating. When asked spe-
cifically about consent on direct examination, GH denied consenting to Appel-
lant touching her buttocks while in the kitchen, denied consenting to Appellant
touching her buttocks or vagina, and denied consenting to Appellant “dry
humping” her with his erect penis on her torso, buttocks, and leg on the air
mattress. GH stated, “[O]ne, it was unwanted. I had stated that we were just
friends. Two, I was sleeping. And three, it was just inappropriate. I don’t see
him that way.”
AFOSI agents interviewed Appellant on 22 September 2020. The recorded
interview was played for the members at trial. During the interview, Appellant
stated that the two went shopping earlier in the afternoon, went to a liquor
store, and ended up at GH’s apartment to cook rice and fish. He also said they
went to a local store to get cookies. Appellant explained they both were drink-
ing and started watching the movie after they ate. Appellant also stated GH
was wearing a sweatshirt and sweatpants, but then changed into “booty
shorts” and a t-shirt when they started to watch the movie. Appellant con-
firmed GH said she was tired and went to sleep a little before him. Appellant
then said that GH “rolled around [and] put her arm across me, and as I said,
hand on my chest and that’s when everything started.”
During the interview, Appellant admitted to unhooking GH’s bra and rub-
bing her back while GH was asleep. Appellant stated he rubbed her back for a
little bit, kissed her on the top of her head, and said he then fell asleep.
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Appellant told AFOSI agents that he regularly “gets hot” when he sleeps and
stated, “I want to totally take my shirt off whenever I sleep.” He added, “But I
probably got hot while I was sleeping.”
Appellant said he awoke when GH turned on the light and said he was
groping and fingering her. Appellant stated, “I don’t want to believe that it
happened, but if it did happen, I wasn’t really conscious. I wasn’t there for it.”
He stated, “I was asleep, and I was really confused.”
Later, however, Appellant began to discuss what happened between when
he said he fell asleep and when GH woke him up:
And that’s one of the main reasons why I’m confused, and I don’t
want to say . . . “Yes, I fingered her, and my [penis] was out, and
I was dry humping her, and like I unhooked her bra, and I was
up on her and everything,” I don’t want to say that because it
doesn’t seem actually real to me, but I can also see it happening.
....
I could see like me being like up against her being like half-
asleep, half-awake kind of thing, like not really all there. And
like putting my hand down her shorts or something, like grab-
bing her butt or something, I don’t know. I could see it happen,
but I like it just doesn’t feel real to me.
Appellant later stated, “I still don’t think that I was awake because I have
a decent memory,” and, “maybe I was awake like you said, but . . . I don’t think
I was fully awake, conscious, there mentally.”
On the recorded interview, Appellant then closed his eyes as if trying to
remember better what happened. Appellant then stated:
I think I like hugged her maybe, or . . . just like wrapped my arm
around her a little bit.
....
So then I tried to get comfy again, and feel up to like to really
fall back asleep. And I think I kind of did because I was asleep,
and I was like up against her, and I think like maybe I was
aroused a little bit because her behind was like close to my front.
....
I don’t really know, like I think at that point I was just like rub-
bing her leg for a little bit, and then I think I -- I touched her
butt. And then sometime after that I could kind of see myself
like -- oh, it’s -- it’s a terrible move, but a move that I know that
I’ve pulled with significant others in the past. So like if you go
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United States v. Johnson, No. ACM 40257
into a little leg or butt massage or whatever, and then you like
put your hand in their pants or whatever.
....
I think after that I . . . put my hand down her shorts, and I don’t
know if I actually fingered her or not, but my hand was probably
near there.
....
I still don’t think I fingered her, but I don’t think that I’d be that
coordinated, I guess is the word. But I think like I could kind of
see myself put my hand down her pants, and just like kind of
leaving it there.
Appellant said, “[I]t’s not a one hundred percent for me in any means. I don’t
even know if it’s 50 percent for me, but saying it out loud kind of felt real so . . .
if that means anything.” (Omission in original).
Appellant further stated, “I don’t know if it’s like my brain just doesn’t want
it to be real or something, and it’s [sic] just like doesn’t want it to be a legit
memory, but it . . . seemed real.” Appellant then said,
I mean, it’s a very short memory. . . . That may have just like
[sic] a couple minutes at most. . . . I don’t think I was trying to
like perform any sort of like foreplay or something for a while. I
think it was just kind of -- I don’t want to say random, but spon-
taneous or something. I don’t know, things just like happened.
And then like I wasn’t really like meaning much by it. And then
I remember like cuddling up against her for a little bit more and
then kind of just like falling back asleep completely. And then
like that’s when everything just kind of like went dark, and then
I saw the light turn on, and her kind [of] push on my shoulder a
little bit.
When asked to clarify whether he put his hands down her pants or both her
pants and underwear, Appellant answered, “It was also her underwear because
honestly, I don’t if like -- I feel skin.” Appellant further stated,
I know for a fact that I was like squeezing her and I was like
kind of like rubbing her butt a little bit. So since I was down
there, like it seems like it could’ve happened to me that I was
also rubbing her vagina. But I don’t have like an exact like hun-
dred percent feeling of it. But it makes sense to me. I'm like at
like 80 percent right now.
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When asked about touching GH in the kitchen while making cookies, Ap-
pellant said that he may have “booped” her butt, adding, “I don’t know if it was
like with my hand, or like a spatula, or like my knee, or -- I remember that
though.” He added, “I was just being like playful. I wasn’t meaning anything
by it. . . . I think I literally said ‘boop.’ You know, like you like boop someone’s
nose or something.” Appellant said he did not grab her butt at this time, but
“just poked it real quick.”
Later, when asked again about placing his finger into GH’s vagina, Appel-
lant responded, “I don’t actually remember it, but I mean, it’s a possibility.”
Appellant further stated:
I think I was just, probably just like subconsciously enjoying like
cuddling with a woman and being near someone like that. I
think like maybe I was just like kind of aroused and wanted to
touch her butt or something. I’m not too sure.
II. DISCUSSION
A. Legal and Factual Sufficiency
Appellant contends his conviction for abusive sexual contact is both legally
and factually insufficient. We are not persuaded by Appellant’s arguments and
find no relief is warranted.
1. Additional Background
During trial, the members heard testimony from three witnesses who
talked to GH shortly after the night in question and heard her describe Appel-
lant’s conduct as wrongful. Mr. JT described the phone call he received from
GH in the early morning hours of 18 September 2020. He testified she was
“crying . . . hysterically” like he had “never heard her cry . . . before.” According
to Mr. JT, it took about “20 minutes” before GH “calmed down” enough to tell
him what happened.
Mr. JT explained that GH told him she and Appellant had been hanging
out, she fell asleep, and “woke up to pretty much having her bra unclasped and
having her breasts touched and having a hand in her panties” and rubbing her
vagina. When asked on cross-examination whether GH told him about Appel-
lant touching her butt earlier in the night or rubbing his penis against her, Mr.
JT responded, “Not to my knowledge.” In response to a panel member question,
however, Mr. JT explained that while he wanted to get full details from GH,
“I'm guess[ing] she did not want to explain the whole thing at the moment since
she probably was trying to keep calm to explain the key points of it.”
When another panel member asked Mr. JT about GH’s sleeping patterns,
he responded,
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[I]t’s very odd, but sometimes we’d go riding bike[s] or we’d be
watching movies, and she’s to that point of exhaustion and she
is calm, like no more adrenaline from like bike riding, or is just
tired, she would just fall asleep. Like there would be no warning
to it. She would just be awake, you would look next to you, and
she is already asleep.[7]
Appellant called as a witness SSgt JT who testified that GH told him in a
phone call that she woke up with Appellant on top of her with his hand down
in her underwear. SSgt JT recalled GH telling him Appellant was naked, she
was wearing a shirt and underwear, and Appellant was rubbing his penis on
her.
Appellant also called Spc TL who testified she knew both GH and Appellant
from technical school. Spc TL said she and GH were friends from April 2020
until September 2020. Spc TL acknowledged GH called her on the morning
after the incident. Spc TL stated GH sounded very scared and upset on the
phone and GH told her that she was “freaked out.” Spc TL testified GH told
her:
She said that she had invited him over, that he was going to
make her dinner. She had had [sic] a drink, and they had
watched a movie after they had finished eating, and then she . . .
said she was going to go to bed, and that she had told him . . . he
couldn’t spend the night, but she left him where he was and she
. . . went to sleep and that when she woke up in the middle of the
night that he was . . . pressed up against her.
Spc TL further testified that GH told her she had run to the restroom when
she woke up, yelled at Appellant, and told him to leave. Spc TL also testified
GH did not mention Appellant fingered her or touching her butt. On cross-
examination, however, Spc TL admitted her call with GH was interrupted be-
cause Spc TL was heading to the hospital for her daughter. When asked if she
had an opinion on GH’s character for untruthfulness, Spc TL said “she is un-
truthful.” However, on cross-examination, Spc TL admitted their friendship
had deteriorated after she confronted GH about how she behaved around men.
Spc TL admitted she stopped being GH’s friend after GH reported Spc TL’s
comment to her first sergeant.
Appellant also called another witness, Spc CR, who knew GH from tech-
nical school. Spc CR said they were together roughly ten hours a day during
7 In Appellant’s case-in-chief, the members heard an excerpt from GH’s Air Force
Office of Special Investigations interview in which she told agents she was “usually a
light sleeper.”
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technical school and had approximately 40 to 50 conversations. Spc CR stated
his opinion that GH is a “very untruthful person.” On cross-examination, how-
ever, Spc CR admitted he had no contact with GH either before or after tech-
nical school and his knowledge of her was strictly based on their interaction at
technical school. Spc CR also admitted that GH reported him for sexual har-
assment during technical school, and that affected his career.
2. Law
Issues of legal and factual sufficiency are reviewed de novo. United States
v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). “Our assessment of legal and
factual sufficiency is limited to evidence produced at trial.” United States v.
Rodela, 82 M.J. 521, 525 (A.F. Ct. Crim. App. 2021) (citing 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)). “The term reasonable doubt, how-
ever, does not mean that the evidence must be free from conflict.” United States
v. Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (citing United States v.
Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986)), aff’d, 77 M.J. 289 (C.A.A.F. 2018).
“[I]n resolving questions of legal sufficiency, we are bound to draw every rea-
sonable 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).
As a result, “[t]he 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)
(alteration in original) (citation omitted), cert. denied, __ U.S. __, 139 S. Ct.
1641 (2019). Indeed, in assessing legal sufficiency, the testimony of a single
witness may satisfy the Government’s burden to prove every element of a
charged offense beyond a reasonable doubt. United States v. Rodriguez-Rivera,
63 M.J. 372, 383 (C.A.A.F. 2006). The test for legal sufficiency “gives full play
to the responsibility of the trier of fact fairly to resolve conflicts in the testi-
mony, to weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts.” United States v. Oliver, 70 M.J. 64, 68 (C.A.A.F. 2011)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
“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,’ [this] court is ‘convinced of the [appellant]’s guilt beyond a rea-
sonable doubt.’” United States v. Reed, 54 M.J. 37, 41 (C.A.A.F. 2000) (quoting
United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987)). “In conducting this
unique appellate role, we take ‘a fresh, impartial look at the evidence,’ applying
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‘neither a presumption of innocence nor a presumption of guilt’ to ‘make [our]
own independent determination as to whether the evidence constitutes proof
of each required element beyond a reasonable doubt.’” Wheeler, 76 M.J. at 568(alteration in original) (quoting Washington, 57 M.J. at 399). This court’s re-
view of the factual sufficiency is limited to the evidence admitted at trial. See
Article 66(d), UCMJ, 10 U.S.C. § 866(d); United States v. Beatty, 64 M.J. 456,
458 (C.A.A.F. 2007) (citations omitted).
In order to find Appellant guilty of abusive sexual contact, in violation of
Article 120, UCMJ, as alleged in Specification 1 of the Charge, the panel mem-
bers were required to find the following two elements beyond a reasonable
doubt: (1) Appellant did at or near Colorado Springs, Colorado, on or about 18
September 2020, commit sexual contact upon GH by touching her buttocks
with his hand with the intent to gratify his sexual desire; and (2) Appellant did
so without GH’s consent. See Manual for Courts-Martial, United States (2019
ed.) (MCM), pt. IV, ¶ 60.b.(4)(d).
Article 120(g)(2), UCMJ, states that sexual contact means:
[The] touching, or causing another person to touch, either di-
rectly or through the clothing, the vulva, penis, scrotum, anus,
groin, breast, inner thigh, or buttocks of any person, with the
intent to abuse, humiliate, harass, or degrade any person or to
arouse or gratify the sexual desire of any person. Touching may
be accomplished by any part of the body or object.
10 U.S.C. § 920(g)(2).
Article 120(g)(7)(A), UCMJ, 10 U.S.C. § 920(g)(7)(A), explains consent as “a
freely given agreement to the conduct at issue by a competent person.” “A
sleeping, unconscious, or incompetent person cannot consent.” Article
120(g)(7)(B), UCMJ, 10 U.S.C. § 920(g)(7)(B). “All the surrounding circum-
stances are to be considered in determining whether a person gave consent.”
Article 120(g)(7)(C), UCMJ, 10 U.S.C. § 920(g)(7)(C).
3. Analysis
We have carefully reviewed the evidence at Appellant’s court-martial and
find it legally and factually sufficient to support his conviction for abusive sex-
ual contact. The Government introduced convincing evidence of Appellant’s
guilt, most significant, the testimony of GH, who described how Appellant in-
tentionally touched her buttocks with his hand, without her consent, and with
the specific intent to gratify his sexual desire. According to GH, she awoke to
find Appellant’s “hand in [her] pants, in [her] underwear.” She further stated
that Appellant’s hand was entering her underwear from the back of her pants.
12
United States v. Johnson, No. ACM 40257
GH’s testimony was also supported by physical evidence showing a partial
male DNA profile, consistent with Appellant, found on the menstrual pad GH
wore at the time of the incident. Additionally, we note the members had the
opportunity to view Appellant’s interview with AFOSI, where Appellant dis-
cussed, more than a dozen times, his touching of GH’s buttocks on the night in
question. Specifically, Appellant stated, “I know for a fact that I was like
squeezing her and I was like kind of like rubbing her butt a little bit.”
GH also clearly testified she did not consent to Appellant’s actions while
she slept or otherwise convey any interest that she wished to engage in sexual
activity with Appellant either immediately prior to or earlier on the night in
question. In GH’s words, “[T]hat was not okay with me. I was sleeping and . . .
he shouldn’t have just assumed that something like that was okay.” GH further
testified to circumstances showing Appellant had the intent to gratify his sex-
ual desire, particularly that Appellant “had an erection” when she observed
him shortly after waking up. Moreover, additional witnesses testified at the
court-martial about how Appellant’s conduct upset GH and caused her to
promptly report it to others.
We find GH’s testimony credible and sufficient, even without additional ev-
idence, to support the charged offense. As an evidentiary standard, proof be-
yond a reasonable doubt does not require more than one witness to testify cred-
ibly. See Rodriguez-Rivera, 63 M.J. at 383. Nevertheless, in this case, Appel-
lant’s statements to AFOSI and the other witnesses’ accounts corroborate im-
portant details of her version of events.
The crux of Appellant’s argument at trial and on appeal is that his convic-
tion is legally and factually insufficient because GH is not credible. Our review
of the entire record, including any inconsistencies, indicates sufficient evidence
to support GH’s testimony. We are not persuaded any inconsistencies are more
than minor or equate to reasonable doubt, especially when we factor in Ap-
pellant’s inculpatory statements to law enforcement.
Viewing the evidence produced at trial in the light most favorable to the
Government, a rational trier of fact could have found the essential elements of
abusive sexual contact beyond a reasonable doubt. See Robinson, 77 M.J. at
297−98. Furthermore, after weighing all the evidence in the record of trial and
making allowances for not having personally observed the witnesses, we are
ourselves convinced of Appellant’s guilt beyond a reasonable doubt. See Reed,
54 M.J. at 41 (quoting Turner, 25 M.J. at 325).
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United States v. Johnson, No. ACM 40257
B. Notice and Due Process
Appellant next argues his Fifth Amendment8 due process rights were vio-
lated because he was convicted on an uncharged theory of abusive sexual con-
tact. He alleges the Government engaged in a “bait and switch” that deprived
him of his right to a fair trial. In Appellant’s view, the charged offense related
only to the incident in the kitchen in which Appellant touched GH’s buttocks
as she was putting cookies in the oven. According to Appellant, “To the extent
that the guilty finding was the result of members applying the elements to the
conduct on the air mattress, [Appellant] was convicted of an offense of which
he was never charged.”
In addition, Appellant argues the military judge violated the canon against
surplusage and Appellant’s due process rights by allowing the Government to
argue a different theory of liability than charged. Specifically, Appellant as-
serts this error could have led the court members to improperly find him guilty
of sexual contact with GH while she was incapable of consent because she was
asleep, instead of finding that Appellant acted without GH’s consent as the
specification alleged. We are not persuaded by Appellant’s arguments and find
no relief is warranted.
1. Additional Background
On 5 April 2021, one charge and three specifications were preferred against
Appellant. Specification 1 of the Charge, which is the only convicted offense,
alleged Appellant “did, at or near Colorado Springs, Colorado, on or about
18 September 2020, touch [GH’s] buttocks with his hand, with an intent to
gratify his sexual desire, without her consent.” Appellant did not request a bill
of particulars to obtain more specific details about the conduct supporting this
or any other specification.
At the start of Appellant’s court-martial, trial counsel began his opening
statement by quoting Appellant’s admission to AFOSI that he touched GH’s
buttocks on the air mattress. Trial counsel quoted Appellant as saying, “It’s a
terrible move, but it’s a move that I know that I have pulled with significant
others in the past, where like you get like a little bit of a leg or a butt massage,
or whatever, and then like you put your hand in their pants.” Trial counsel
later stated, “The next thing [GH] is . . . waking up to the [Appellant]’s hand
in her pants. She could feel him rubbing her buttocks, leg and thigh.” Trial
counsel’s opening statement never mentioned the touching incident in the
kitchen.
8 U.S. CONST. amend. V.
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United States v. Johnson, No. ACM 40257
GH, during her testimony, stated that Appellant’s arm and hand were
down the back of her pants when she woke up, adding, “He used his left hand
to go into the back of my pants and into my underwear.” After receiving find-
ings instructions, a panel member asked whether Specification 1 of the Charge
included only the event in the kitchen or all the conduct that evening. During
an Article 39(a), UCMJ, 10 U.S.C. § 839(a), session, outside the presence of the
members, trial counsel responded:
I believe that it could reasonably apply to both instances per se.
If they don’t find an intent for the touching at the oven, that they
should consider the touching on the air mattress. But . . . the gist
of the [G]overnment’s argument and our theory is that that pri-
marily refers to the conduct on the air mattress.
....
Government’s [closing] argument will . . . suggest the possibility
that they could find him guilty of . . . either conduct.
Appellant’s trial defense counsel made no objection on a lack of notice or
due process basis. Appellant’s trial defense counsel also never stated they were
not prepared to defend against Appellant touching GH’s buttocks on the air
mattress without consent. Instead, Appellant’s counsel only questioned
whether it was “proper for the judge to instruct on the [G]overnment’s theory
of the case.”
The military judge then proposed the following instruction to respond to
the member’s question: “I would allow the parties to describe their theories of
when and how that may have happened, your job is to consider whether those
three events happened on this date.” Appellant’s counsel responded, “I think
that -- even with that language, it’s even clearer. That’s perfect, Your Honor.”
The military judge later instructed the members that the Specification of
the Charge
asks you to determine whether, in your judgement, at any time
on 18 September 2020, those three elements occurred: that there
was a touching of the buttocks, by the accused; that it was with
the intent to gratify sexual desire; and, that it was without con-
sent. So, your duty is to determine whether in your judgement,
those three elements occurred at any time, during the course of
the 18th. Whether or not it did is ultimately up to you.”
The military judge ultimately allowed the trial counsel to argue all the sur-
rounding circumstances could be considered for lack of consent. As to the mem-
ber’s question, the military judge told the panel:
15
United States v. Johnson, No. ACM 40257
[O]n Specification 1, I’d refer . . . you to my instructions on the
definition of consent, being that “consent” means a freely-given
agreement to the conduct at issue by a competent person. The
definitions that I’ve given you to what that entails still apply
here. It’s for both parties to argue whether or not they think
those circumstances are here under the facts of this case. Ulti-
mately, all the surrounding circumstances are to be considered
in determining whether a person gave consent.
Appellant’s trial defense counsel did not object to the instruction.
During the Government’s closing argument, trial counsel stated Appellant
committed the “butt massage” while GH “lay in bed next to [Appellant] asleep,”
and later argued, “He did those things without her consent.” The trial counsel
closed by stating, “When you consider [GH’s] reaction, the DNA proof that cor-
roborates this case, the two stories, the accused’s own lies, his confession, there
is no alternate conclusion except the accused did these things to her without
her consent.”
2. Law
We review constitutional issues de novo. United States v. Payne, 47 M.J.
37, 42 (C.A.A.F. 1997). We review questions of law de novo. United States v.
Watson, 71 M.J. 54, 56 (C.A.A.F. 2012). The scope, applicability, and meaning
of the UCMJ are matters of statutory interpretation we review de novo. United
States v. Gay, 75 M.J. 264, 267 (C.A.A.F. 2016) (citation omitted).
There is a presumption against the waiver of constitutional rights on ap-
peal. United States v. Harcrow, 66 M.J. 154, 157 (C.A.A.F. 2008) (citing
Brookhart v. Janis, 384 U.S. 1, 4 (1966)). Accordingly, an appellate court will
only find an appellant has waived the right to raise a constitutional issue on
appeal when it is “clearly established that there was ‘an intentional relinquish-
ment or abandonment of a known right.’” Id.“The due process principle of fair notice mandates that an accused has a
right to know what offense and under what legal theory he will be convicted.”
United States v. Tunstall, 72 M.J. 191, 192 (C.A.A.F. 2013) (internal quotation
marks, citation, and alteration omitted). The Fifth Amendment’s due process
clause “does not permit convicting an accused of an offense with which he has
not been charged.” Id. (quoting United States v. Girouard, 72 M.J. 5, 10
(C.A.A.F. 2011)). Therefore, a specification tried by court-martial will not pass
constitutional scrutiny unless it both gives the accused notice of the charge he
or she must defend against and shields him or her from being placed in double
jeopardy for the same offense. United States v. Turner, 79 M.J. 401, 403
(C.A.A.F. 2020) (citations omitted). The military is a notice-pleading jurisdic-
tion. United States v. Gallo, 53 M.J. 556, 564 (A.F. Ct. Crim. App. 2000), aff’d,
16
United States v. Johnson, No. ACM 40257
55 M.J. 418 (C.A.A.F. 2001). A specification is sufficiently particular if it “in-
forms an accused of the offense against which he or she must defend and bars
a future prosecution for the same offense.” Id. (citations omitted).
The UCMJ presents various alternative theories of liability for the offense
of abusive sexual contact. See MCM, pt. IV, ¶ 60.b.(4)(a)–(f). As related to this
case, the provision with which Appellant was charged prohibits the commis-
sion of sexual contact “without the consent” of the other person, while a sepa-
rate provision addresses sexual contact committed by a person who knows or
reasonably should know “that the other person is asleep, unconscious, or oth-
erwise unaware that the sexual contact” was occurring.” MCM, pt. IV,
¶ 60.b.(4)(d)–(f).
The canon against surplusage specifies “if possible, every word and every
provision” of a statute “is to be given effect and that no word should be ignored
or needlessly be given an interpretation that causes it to duplicate another
provision or to have no consequence.” United States v. Sager, 76 M.J. 158, 161
(C.A.A.F. 2017). This principle of statutory construction is “strongest when an
interpretation would render superfluous another part of the same statutory
scheme.” Id. at 162 (quoting Yates v. United States, 574 U.S. 528, 543 (2015)).
“It makes no difference how many members chose one act or the other, one
theory of liability or the other. The only condition is that there be evidence
sufficient to justify a finding of guilty on any theory of liability submitted to
the members.” United States v. Brown, 65 M.J. 356, 359 (C.A.A.F. 2007) (quot-
ing United States v. Vidal, 23 M.J. 319, 325 (C.M.A. 1987)).
An error in the admission of evidence is harmless in the constitutional con-
text when there is no “reasonable possibility that the evidence complained of
might have contributed to the conviction.” United States v. Gardinier, 67 M.J.
304, 306 (C.A.A.F. 2009) (quoting Chapman v. California, 386 U.S. 18, 23
(1967)).
3. Analysis
Given the constitutional nature of the rights at issue, we decline the Gov-
ernment’s request to apply waiver in Appellant’s case. We do not find that the
record clearly establishes there was an intentional relinquishment or abandon-
ment of known rights. We therefore turn our attention to the merits of Appel-
lant’s contentions and review the matter de novo.
Appellant first argues he was convicted of an offense for which he was not
on notice. We disagree. At the most basic level, our review of the record shows
Appellant was charged in Specification 1 of the Charge with abusive sexual
contact requiring proof he acted without the consent of the other person. We
find the specification expressly alleged every required element of the offense
and informed Appellant he would be required to defend against the offense of
17
United States v. Johnson, No. ACM 40257
abusive sexual contact without consent. We also find Appellant is sufficiently
protected from future prosecution for the same offense.
On appeal, Appellant argues the Government violated his due process
rights by switching the events that Specification 1 of the Charge was meant to
address. Specifically, Appellant argues he, his trial defense counsel, and “eve-
ryone else involved in the court-martial believed that Specification 1 alleged a
nonconsensual touching of GH’s buttocks while bending over in the kitchen to
put cookies in the oven.” He further claims the inclusion of him touching GH’s
buttocks on the air mattress was a “bait and switch” that deprived him of a fair
trial. We find the record does not support Appellant’s claim.
First, Specification 1 of the Charge has never changed. It reads the same
post-trial as it did when it was preferred by Appellant’s commander. Notably,
Appellant did not request a bill of particulars to clarify the Government’s evi-
dence supporting Specification 1. Appellant makes no argument that he was
not provided discovery in this case, therefore, he had pretrial access to GH’s
statements that Appellant had his hand down the back of her underwear while
she slept. Appellant also received discovery of his own statements to AFOSI
during the investigation where he discussed at least a dozen times touching
GH’s buttocks on the air mattress. We also note the Government’s opening
statement made no mention of the incident in the kitchen, but focused heavily
on Appellant’s conduct on the air mattress. Similarly, the Government’s clos-
ing argument clearly indicated that the abusive sexual contact on the air mat-
tress was the Government’s “primary” focus of prosecution. We find no support
for Appellant’s claim his due process right to notice was violated.
Next, Appellant argues his due process rights were violated when the mil-
itary judge erroneously allowed trial counsel to argue a different theory of lia-
bility than originally charged. Specifically, Appellant argues the military judge
permitted the Government to argue the abusive sexual contact occurred while
GH was asleep, as opposed to how it was charged—without her consent. Again,
we find the record does not support this argument.
Here, the record details that the military judge properly advised the panel
on the elements of the offense, including the Government’s obligation to prove
beyond a reasonable doubt that GH did not consent to the sexual contact. We
see no reason why the Government may not use evidence that GH was asleep—
ordinarily the focal point of a prosecution under the theory of while asleep—as
circumstantial evidence of the lack of actual consent in a prosecution under a
theory of without consent. This conclusion is consistent with our decisions in
United States v. Horne, No. ACM 39717, 2021 CCA LEXIS 261, at *69–70 (A.F.
Ct. of Crim. App. 27 May 2021) (unpub. op.), aff’d, 82 M.J. 283 (C.A.A.F. 2022),
and United States v. Williams, No. ACM 39746, 2021 CCA LEXIS 109, at *53–
54 (A.F. Ct. Crim. App. 12 Mar. 2021) (unpub. op.), aff’d, 81 M.J. 450 (C.A.A.F.
18
United States v. Johnson, No. ACM 40257
2021), where we held circumstances showing a victim’s incapacity to consent
to a sexual act due to intoxication and inability to consent due to unconscious-
ness, respectively, could be part of the surrounding circumstances to be consid-
ered in deciding whether the accused acted without the consent of the victim.
Given the express language that “[a]ll the surrounding circumstances are to be
considered in determining whether a person gave consent,” the rule against
surplusage does not pose any barrier to Appellant’s conviction. Article
120(g)(7)(C), UCMJ. In fact, we note trial counsel repeatedly argued “lack of
consent” throughout his entire closing argument and never suggested the
panel had to find GH was asleep.
Finally, we find nothing in the record to suggest that trial counsel misled
the members or asked them to convict Appellant of any offense other than the
one for which he was charged. The Government submitted evidence of both
Appellant’s conduct in the kitchen and on the air mattress. "It makes no dif-
ference how many members chose one act or the other, one theory of liability
or the other. The only condition is that there be evidence sufficient to justify a
finding of guilty on any theory of liability submitted to the members." United
States v. Brown, 65 M.J. at 359 (quoting United States v. Vidal, 23 M.J. at 325).
We find no error by the military judge and no due process violation of any
kind occurred during Appellant’s trial, and therefore conclude Appellant is not
entitled to relief.
C. Victim Impact Statement
Appellant contends that the military judge abused his discretion by permit-
ting GH’s victim impact statement during sentencing. Specifically, Appellant
argues that the military judge erred when he allowed GH to discuss the impact
of the offenses of which Appellant was acquitted. We agree with Appellant that
the military judge erred, but determine Appellant did not suffer material prej-
udice to his substantial rights and is therefore not entitled to relief.
1. Additional Background
During sentencing proceedings, trial defense counsel objected to Court Ex-
hibit A, a victim impact statement offered by GH. GH’s victims’ counsel sought
to admit the statement under R.C.M. 1001(c). Trial defense counsel objected to
certain content being outside the scope of a victim impact statement. Specifi-
cally related to the issue raised by Appellant on appeal, trial defense counsel
objected to the following statement: “I felt disgusted, violated, and physically
gross. It dredged up old memories of what happened to me when I was younger.
The displeasing feeling of his hand and his penis felt vile.” Appellant’s trial
defense counsel argued that this portion of GH’s statement referred to acquit-
ted offenses, and did not directly relate to an offense of which Appellant was
found guilty.
19
United States v. Johnson, No. ACM 40257
After an overnight recess, the military judge issued a final ruling address-
ing Appellant’s objection. His ruling concluded, “Accordingly, acquitted mis-
conduct will be permitted in its brief form in the victim allocution. A curative
instruction will also be administered . . . .”
Court Exhibit B is what was eventually given to the members. Relevant to
this issue on appeal, Court Exhibit B included the identical language quoted
above.
Subsequently, the military judge provided the following instruction to the
members:
During her unsworn statement, the victim made brief reference
to the acquitted misconduct in this case, namely that [Appellant]
allegedly rubbed his penis on her and penetrated her vulva while
she slept. While the rules for victim allocution are broad and per-
mitted [GH] to say this in her unsworn statement, the Rules of
[sic] Courts-Martial do not permit you to consider that aspect of
her statement in arriving at an appropriate sentence in this
case. Once again, you may sentence [Appellant] solely for the
misconduct of which he has been convicted . . . .
(Emphasis added.)
2. Law
Article 6b, UCMJ, grants victims of offenses under the UCMJ the right to
be reasonably heard at a sentencing hearing related to the offense. 10 U.S.C.
§ 806b(a)(4)(B). A victim covered by this right is one “who has suffered direct
physical, emotional, or pecuniary harm as a result of the commission of an of-
fense under [the UCMJ].” 10 U.S.C. § 806b(b).
Victims in non-capital cases may exercise their right to be reasonably heard
through sworn or unsworn statements. R.C.M. 1001(c)(2)(D)(ii). “[U]nsworn
statement[s] may be oral, written, or both.” R.C.M. 1001(c)(5)(A). A “crime vic-
tim” is one “who has suffered direct physical, emotional, or pecuniary harm as
a result of the commission of an offense of which the accused was found guilty.”
R.C.M. 1001(c)(2)(A).
Statements offered under R.C.M. 1001(c) may include victim impact or
matters in mitigation. R.C.M. 1001(c)(3). Victim impact under R.C.M. 1001(c)
means “any financial, social, psychological, or medical impact on the victim
directly relating to or arising from the offense of which the accused has been
found guilty.” R.C.M. 1001(c)(2)(B).
Our interpretation of R.C.M. 1001(c) is a question of law we review de novo.
See United States v. Barker, 77 M.J. 377, 382 (C.A.A.F. 2018) (citation omitted).
However, we review a military judge’s decision to accept a victim impact
20
United States v. Johnson, No. ACM 40257
statement offered pursuant to R.C.M. 1001 for an abuse of discretion. Id. at
383 (citing Humpherys, 57 M.J. 83, 90 (C.A.A.F. 2002)). We find an abuse of
discretion when the military judge’s “findings of fact are clearly erroneous, the
court’s decision is influenced by an erroneous view of the law, or the military
judge’s decision on the issue at hand is outside the range of choices reasonably
arising from the applicable facts and the law.” United States v. Miller, 66 M.J.
306, 307 (C.A.A.F. 2008) (citations omitted). “[U]nder the last of these tests”
we must find, “‘more than a mere difference of opinion’; rather, the military
judge’s ruling ‘must be arbitrary, fanciful, clearly unreasonable or clearly er-
roneous.’” United States v. Uribe, 80 M.J. 442, 451 (C.A.A.F. 2021) (quoting
United States v. Collier, 67 M.J. 347, 353 (C.A.A.F. 2009)).
When there is error regarding the presentation of victim statements under
R.C.M. 1001(c), the test for prejudice “is whether the error substantially influ-
enced the adjudged sentence.” Barker, 77 M.J. at 384 (quoting United States v.
Sanders, 67 M.J. 344, 346 (C.A.A.F. 2009)). This is determined by evaluating
the relative strength of the parties’ cases along with the materiality and qual-
ity of the evidence in question. Id. (citation omitted). “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 provided new ammunition against an appel-
lant.” Id. (citation omitted).
3. Analysis
We find that the military judge abused his discretion by permitting the vic-
tim to reference acquitted misconduct in her unsworn statement. We find
R.C.M. 1001(c) provides clear guidance on what qualifies as proper victim im-
pact; it states that victim impact “includes any financial, social, psychological,
or medical impact on the victim directly relating to or arising from the offense
of which the accused has been found guilty.” R.C.M. 1001(c)(2)(B). To the ex-
tent that the military judge permitted the victim in this case to refer to acquit-
ted misconduct over the Defense’s objection, that was error.
In United States v. Da Silva, a panel of this court provided the following
guidance to military justice practitioners:
When faced with these situations, we see the military judge’s
responsibility as two-fold: (1) ensuring [the victim]’s right to be
reasonably heard is protected within the parameters of
R.C.M. 1001A; and (2) ensuring that if the court members are
allowed to hear victim impact information that could be reason-
ably interpreted by the court members as a comment about an
acquitted offense that they are instructed they cannot do so.
....
21
United States v. Johnson, No. ACM 40257
We think the preferable course of action for military judges
should be to tailor the unsworn statement instruction. This pre-
serves a crime victim’s right to be reasonably heard while ensur-
ing court members do not wrongly interpret victim impact infor-
mation that they “must consider.” [Special victims’ counsel]
should be attuned to these concerns and prepared to offer the
military judge a tailored instruction which protects their client’s
right to be reasonably heard while simultaneously making sure
that appellate error is not unnecessarily introduced because
their client’s statement could be reasonably viewed as comment-
ing on an acquitted offense.
No. ACM 39599, 2020 CCA LEXIS 213, at *53–54 (A.F. Ct. Crim. App. 25 Jun.
2020) (unpub. op.) (emphasis added). The military judge cited to Da Silva when
explaining his decision to allow GH to refer to acquitted misconduct in her un-
sworn statement, and to address the statement with a tailored instruction to
the court members. However, military judges should not interpret Da Silva to
mean that they should allow court members to receive unsworn victim state-
ments that exceed their proper scope under R.C.M. 1001(c). “[T]he military
judge has an obligation to ensure the content of a victim’s unsworn statement
comports with the parameters of victim impact or mitigation as defined by” the
rule. United States v. Tyler, 81 M.J. 108, 112 (C.A.A.F. 2021) (citing R.C.M.
1001A, Discussion). In Da Silva, this court addressed a situation in which the
victim’s unsworn statement included ambiguous language susceptible of “two
possible interpretations” which might or might not have implicated acquitted
conduct. Unpub. op. at *52. In that situation, Da Silva explained that a “stand-
ard unsworn statement instruction” was potentially inadequate, and an in-
struction tailored to the circumstances would have been the “preferable
course.” Id. at *54. The instant case is different in that the military judge un-
ambiguously identified references to acquitted conduct in GH’s unsworn state-
ment which exceeded what R.C.M. 1001(c) permits, then declared victim un-
sworn statements are permitted to exceed this scope and allowed GH’s state-
ment to go to the court members. To the extent Da Silva was unclear about
whether victim unsworn statements may be allowed to address improper mat-
ters, the United States Court of Appeals for the Armed Forces’ subsequent
opinion in Tyler clearly states the military judge’s obligation to restrict their
contents.
We now turn our attention to whether the portion of GH’s written state-
ment described above substantially influenced the sentence by evaluating the
relative strength of the parties’ cases along with the materiality and quality of
the evidence in question. See Barker, 77 M.J. at 384 (citation omitted). We find
it did not. Here, we find the first two factors are essentially equal. The Govern-
ment’s sentencing case was strong, as was Appellant’s sentencing case.
22
United States v. Johnson, No. ACM 40257
The final two factors of the prejudice analysis, materiality and quality, re-
quire us to assess how much GH’s reference to acquitted offenses in her un-
sworn statement may have affected the court-martial. We find that GH’s un-
sworn victim statement did contribute to the Government’s case. It provided
insight on how Appellant’s actions affected her life. However, we find the very
small portion of statement that referenced acquitted misconduct only
amounted to one sentence in a statement that was almost two pages in length.
We find that the military judge’s instruction substantially mitigated the error.
Here the military judge specifically instructed the members that they could not
consider GH’s reference to acquitted misconduct in determining an appropriate
sentence. Court members are presumed to follow the military judge’s instruc-
tions absent evidence to the contrary. United States v. Taylor, 53 M.J. 195, 198
(C.A.A.F. 2000). We also find it important that this was not the first time the
members had heard from GH as she testified during trial. GH’s unsworn state-
ment did not provide any new ammunition against Appellant such as un-
charged misconduct, and trial counsel did not argue this portion of her un-
sworn statement as justification for the sentence recommendation.
In conclusion, after evaluating the four factors, we do not find that the error
substantially influenced the adjudged sentence. See Barker, 77 M.J. at 384 (ci-
tation omitted).
D. Sentence Severity
Appellant contends his sentence is inappropriately severe. He asks that we
use our authority under Article 66(d), UCMJ, 10 U.S.C. § 866(d), to modify his
sentence. We are not persuaded Appellant’s sentence is inappropriately severe
and find no relief is warranted.
“We review sentence appropriateness de novo.” United States v. Datavs, 70
M.J. 595, 604 (A.F. Ct. Crim. App. 2011) (citing United States v. Baier, 60 M.J.
382, 383–84 (C.A.A.F. 2005)), aff’d, 71 M.J. 420 (C.A.A.F. 2012). “We assess
sentence appropriateness by considering the particular appellant, the nature
and seriousness of the offense, the appellant’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 sentence is appropriate, we are not
authorized to engage in exercises of clemency. See United States v. Nerad, 69
M.J. 138, 146 (C.A.A.F. 2010) (citation omitted).
We have conducted a thorough review of Appellant’s entire court-martial
record, including his record of service, and all matters submitted in extenua-
tion and mitigation. We find that the nature and seriousness of the offense
clearly support the adjudged sentence of a bad-conduct discharge, confinement
for six months, reduction to the grade of E-1, and a reprimand. Understanding
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United States v. Johnson, No. ACM 40257
we have a statutory responsibility to affirm only so much of the sentence that
is correct and should be approved, Article 66(d), UCMJ, we conclude the sen-
tence is not inappropriately severe and we affirm the sentence as adjudged.
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). Accordingly, the ap-
proved findings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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