United States v. Emas ( 2022 )

**CORRECTED COPY – DESTROY ALL OTHERS**
U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 40020
________________________
UNITED STATES
Appellee
v.
Nicholas F. EMAS
Airman First Class (E-3), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 21 June 2022
________________________
Military Judge: Wesley A. Braun (arraignment); Matthew N. McCall
(motions); Mark W. Milam.
Sentence: Sentence adjudged 23 October 2020 by GCM convened at Joint
Base McGuire-Dix-Lakehurst, New Jersey. Sentence entered by mili-
tary judge on 7 December 2020: Dishonorable discharge, confinement
for 7 years, forfeiture of all pay and allowances, and reduction to E-1.
For Appellant: Major Ryan S. Crnkovich, USAF.
For Appellee: Colonel Naomi P. Dennis, USAF; Major Abbigayle C.
Hunter, USAF; Major Brittany M. Speirs, USAF; Mary Ellen Payne, Es-
quire.
Before KEY, ANNEXSTAD, and MEGINLEY, Appellate Military
Judges.
Judge ANNEXSTAD delivered the opinion of the court, in which Senior
Judge KEY joined. Judge MEGINLEY filed a separate opinion dissent-
ing.
________________________
This is an unpublished opinion and, as such, does not serve as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. Emas, No. ACM 40020
ANNEXSTAD, Judge:
A general court-martial composed of officer and enlisted members convicted
Appellant, contrary to his pleas, of two specifications of sexual assault and one
specification of rape in violation of Article 120, Uniform Code of Military Jus-
tice (UCMJ), 10 U.S.C. § 920.1,2 The court-martial sentenced Appellant to a
dishonorable discharge, seven years of confinement, forfeiture of all pay and
allowances, and reduction to the grade of E-1.
On appeal, Appellant raises three issues through his appellate defense
counsel which we have reworded: (1) whether the military judge erred by fail-
ing to instruct the panel that a unanimous verdict was required to convict Ap-
pellant; (2) whether the Government can prove that its failure to disclose that
the named victim had been granted immunity was harmless beyond a reason-
able doubt; and (3) whether the military judge erred when he allowed the Gov-
ernment to admit two video clips of the named victim’s interview with investi-
gators as prior consistent statements. Appellant personally raises three addi-
tional issues pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982),
which we have reworded: (4) whether the military judge abused his discretion
by admitting Officer MC’s body camera recording; (5) whether trial counsel
committed prosecutorial misconduct during his closing argument; and (6)
whether the Government’s charging scheme amounted to an unreasonable
multiplication of charges. With respect to issues (1)3 and (6), we have carefully
considered Appellant’s contentions and find they do not require further discus-
sion or warrant relief. See United States v. Matias, 25 M.J. 356, 361 (C.M.A.
1987).
Finding no error that materially prejudiced a substantial right of Appel-
lant, we affirm the findings and sentence.
1 Appellant was also acquitted of one specification of rape in violation of Article 120,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920, Manual for Courts-Martial,
United States (2016 ed.) (2016 MCM).
2 All references in this opinion to the punitive articles of the UCMJ are to the 2016
MCM. Unless otherwise noted, all other references to the UCMJ, Military Rules of
Evidence, and Rules for Courts-Martial are to the Manual for Courts-Martial, United
States (2019 ed.).
3 See United States v. Anderson, No. ACM 39969, 2022 CCA LEXIS 181, at *50–57
(A.F. Ct. Crim. App. 25 Mar. 2022) (unpub. op.) (finding unanimous court-martial ver-
dicts not required).
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United States v. Emas, No. ACM 40020
I. BACKGROUND
Appellant entered active duty in the Air Force on 16 August 2016, and dur-
ing the charged timeframe was stationed at Joint Base McGuire-Dix-Lake-
hurst (JBMDL), New Jersey. Appellant worked in the Explosive Ordinance
Disposal (EOD) flight of the Civil Engineer Squadron. Appellant met Ms. KF
on his first day with the unit.4 At that time, Ms. KF was on active duty, sta-
tioned at JBMDL, and worked in the EOD flight with Appellant. While Appel-
lant had talked with Ms. KF occasionally at work, the two did not know each
other very well.
At trial, Ms. KF testified that both she and Appellant owned puppies, and
that in September 2018, Appellant proposed that they meet up and let their
dogs play together. At the time, Ms. KF lived in a house a short distance from
JBMDL that had a fenced backyard. They arranged to meet at Ms. KF’s house.
That Saturday, 23 September 2018, Appellant arrived at Ms. KF’s house with
his puppy. Ms. KF lived with two male roommates, both active duty Air Force
members. Both roommates were gone on this particular day and not due back
until the following day. When Ms. KF originally made plans with Appellant,
she had thought her roommates would be home.
Appellant was married, and Ms. KF testified that she assumed Appellant
was bringing his wife with him. When Appellant showed up alone to her house,
Ms. KF asked where his wife was; Appellant told Ms. KF his wife was sick or
hurt, or words to that effect. As Ms. KF explained she was usually “either the
only female or one of two females in” her unit, and had hoped Appellant would
bring his wife with him so they could become friends. Appellant and Ms. KF
sat together on the back porch while their dogs played in the backyard. Ms. KF
offered Appellant a beer, and the two sat on the porch talking and drinking
beer for a few hours. Ms. KF described the interaction with Appellant as “[j]ust
having a conversation with my coworker, nothing really that seemed out of the
ordinary, just . . . figured that it was nice to hang out with somebody.” As it
started getting dark outside, Ms. KF told Appellant that her plans for the night
included dinner and watching television at home. Ms. KF invited Appellant to
join her because “he was nice,” and Appellant accepted her offer.
For the next few hours, Appellant and Ms. KF sat on the couch in the
living room, ate leftover pizza, drank alcohol, and watched The Office, a comedy
television show. Appellant and Ms. KF sat on opposite ends of the couch, with
throw pillows between them. Appellant and Ms. KF were sitting about four-to-
4 At the time of the offense Ms. KF was a noncommissioned officer who had three pre-
vious assignments. Since she separated from the Air Force prior to Appellant’s trial we
refer to her as Ms. KF in the opinion.
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United States v. Emas, No. ACM 40020
five feet apart. At some point in the evening, Ms. KF believed Appellant was
too intoxicated to safely drive home; she told Appellant he could stay the night
in either of her two roommate’s bedrooms, or on the couch. The two other bed-
rooms were on the first floor of the house, and Ms. KF’s bedroom was on the
second floor.
Eventually, Ms. KF stopped drinking beer and switched to a large glass of
whiskey. After consuming the whiskey, Ms. KF felt sick and dizzy, and soon
thereafter walked outside and vomited in the front yard. Still feeling dizzy and
sick, Ms. KF returned to the living room, told Appellant that she had vomited,
and then walked upstairs to go to bed. Ms. KF got into her bed and went to
sleep. Ms. KF awoke to Appellant standing next to her bed and placing a meas-
uring cup filled with water on her bedside table. Without saying anything, Ap-
pellant knelt down next to her and stroked her hair and face. Ms. KF testified
that she was “confused” by Appellant’s actions. Ms. KF testified that she was
lying on her side, and that while Appellant stroked her hair, he laid down on
his side behind her in a spooning position. She further explained that the front
of Appellant’s body was touching the back of her body. Ms. KF stated that she
was scared and froze when Appellant got in bed with her. She also testified in
an Article 39(a), UCMJ, 10 U.S.C. § 839(a), session, outside of the presence of
members, that she had been previously inappropriately touched by a co-worker
in a similar way.
Ms. KF testified that Appellant, while lying behind her, touched her shoul-
der and rubbed her waist, buttocks, and legs. He put his hands underneath her
bra, and then inside of her shorts and underwear, such that he was touching
the outside of her vagina. Ms. KF asked him what he was doing and Appellant
did not respond. Ms. KF testified that she started to audibly cry, and when
Appellant asked her if she “wanted his fingers” in her vagina, that she stated,
“No.” Despite Ms. KF’s reply, Appellant penetrated Ms. KF’s vulva with his
fingers. Ms. KF stated that this lasted for a “few minutes.” After penetrating
Ms. KF’s vagina with his fingers, and while still lying behind her, Appellant
then asked Ms. KF if she wanted his “d[**]k.” Ms. KF verbally responded, “No.”
Despite Ms. KF’s answer, Appellant pulled down her shorts and penetrated
her vulva with his penis. Ms. KF testified that it “didn’t last very long” because
“[t]here wasn’t any lubrication.” While this was happening, Ms. KF stated that
she was still crying. Immediately after Appellant removed his penis from her
vulva, and without saying a word, Appellant penetrated Ms. KF’s anus with
his finger. Appellant then asked if Ms. KF “wanted his d[**]k in [her] a[**]”
and Ms. KF again verbally replied, “No.” Despite Ms. KF’s answer, Appellant
brought his right hand to her throat and pulled her towards him, impeding her
breath. Appellant then penetrated Ms. KF’s anus with his penis. Terrified that
Appellant was going to kill her, Ms. KF snapped out of her “frozen” state and
attempted to physically escape. She testified that she threw her elbow back
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United States v. Emas, No. ACM 40020
toward Appellant’s head, and then started flailing, trying to fight him off. Once
Ms. KF began physically resisting him, Appellant got out of the bed and put
his pants back on. Appellant then stated to Ms. KF, “What the f[**]k?” and Ms.
KF replied, “You f[**]king raped me.” After Ms. KF confronted him, Appellant
left the room and went downstairs alone. Ms. KF remained in her bedroom
crying.
A couple of minutes later, Ms. KF heard Appellant downstairs screaming.
At first Ms. KF did not respond and tried to ignore Appellant’s actions, but
Appellant’s screaming persisted, so she went downstairs to see what was hap-
pening. When Ms. KF arrived downstairs, she saw Appellant standing by the
front door holding his wrist with blood on his hands. Appellant told Ms. KF
that there had been an intruder in the house. Appellant walked out the front
door. Meanwhile, Ms. KF could not find her dog, so she went outside on the
front porch, found and collected her dog, went back inside the house, and locked
the door. Ms. KF then heard Appellant yelling from the back porch area of the
house. Ms. KF found Appellant lying on the back stairs, claiming that he had
been stabbed. Ms. KF saw blood on Appellant’s leg, but was unable to deter-
mine where the blood was coming from. Ms. KF told Appellant that she was
going to call the police and reached into the pocket of his jeans to use Appel-
lant’s cell phone. When she reached into his pocket, she found a folding blade
pocket knife. She then tossed the knife away from Appellant, retrieved his
phone, walked back in the house, and locked the door. Appellant was still lying
on the back stairs.
Ms. KF then proceeded to call 911. During the call, while uncontrollably
crying and having trouble breathing, Ms. KF stated that she had been sexually
assaulted. At different points she exclaimed to herself, “Why,” “Oh my god,”
and “I can’t believe this.” Officers CL and MC from the Florence Township Po-
lice Department responded to the call. After arriving at Ms. KF’s house, Officer
CL knocked on the front door, but no one answered. Officer MC then thought
he heard someone in the backyard. He walked around the side of the house,
with Officer CL following closely behind him. The officers then found Appellant
in the backyard, shirtless, bleeding, and holding his left hand. Appellant told
the officers that he had chased two unknown men out of the backyard with a
pocket knife. Both officers then had Appellant follow them to the back door of
the house, which they found locked. The officers knocked on the door and Ms.
KF, still on the phone with the 911 dispatcher, answered the door and let the
officers in the house. When police officers made contact with Ms. KF, she was
uncontrollably crying and having difficulty talking. Officer CL asked Ms. KF if
Appellant was the suspect, and Ms. KF indicated he was. The officers then
informed Appellant that they were taking him to the police station and that he
would get medical treatment there. The officers escorted Appellant out of the
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United States v. Emas, No. ACM 40020
house, into a patrol vehicle, and took him to the police station, where he re-
ceived first-aid treatment. Both officers were wearing body cameras that rec-
orded their entire response to the 911 call.
Later that night, Ms. KF was taken to a local emergency room, where she
received a forensic medical exam. During the exam, genital, vaginal, anal, and
rectal swabs were taken from Ms. KF’s body. A buccal swab, to serve as a
known DNA sample, was also collected from Ms. KF. Ms. KF indicated to med-
ical providers during the exam that she was experiencing moderate pain in her
anus and that the pain started during the assault. At the time of the charged
offenses, Ms. KF was menstruating and had a tampon inserted in her vagina
during the assault. She did not remove or replace the tampon before going to
the hospital. At the hospital, the tampon was removed, and collected as evi-
dence. Also as part of the investigation, agents from the Air Force Office of
Special Investigations (AFOSI) collected a buccal swab from Appellant, as well
as swabs from his penis and both sets of fingers. They also collected fingernail
scrapings and clippings from both of Appellant’s hands. Additionally, the
agents collected swabs of the blood found inside Ms. KF’s house, and seized the
jeans Appellant was wearing the night of the charged offenses—which had
blood on the inside of crotch area.
The various pieces of evidence and swabs collected as part of the investiga-
tion were sent to the United States Army Criminal Investigation Laboratory
for testing. DNA testing of the rectal swab, which was taken from inside Ms.
KF’s anus, revealed a single sperm confirmed with a very high likelihood to
contain Appellant’s DNA. Appellant’s DNA from tissue cells was also found on
Ms. KF’s rectal and vaginal swabs. The testing also revealed that a swab of
blood found on the inside of the crotch area of Appellant’s jeans matched Ms.
KF’s DNA. Furthermore, Appellant’s DNA was the only DNA found on the
pocket knife. Finally, Ms. KF’s DNA was found on the swabs taken from Ap-
pellant’s right fingers and the fingernail scrapings taken from the same hand.
At trial, the Government’s DNA expert opined that it would take more contact
than just touching to get someone else’s DNA under one’s fingernails. No DNA
from an unknown source was found on the items tested.
II. DISCUSSION
A. Failure to Disclose Victim’s Immunity
Appellant contends that the Government failed to specifically disclose the
fact that Ms. KF was granted testimonial immunity prior to Appellant’s court-
martial. Appellant asks that we set aside and dismiss his conviction and sen-
tence. We find that the error did not affect the outcome of the trial and that
Appellant is not entitled to relief.
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United States v. Emas, No. ACM 40020
1. Additional Background5
As noted above, on 23 September 2018, police officers responded to Ms. KF’s
house, pursuant to her emergency 911 call in which she stated that she had
been sexually assaulted. The responding officers spoke with Ms. KF, who vol-
unteered that both she and Appellant had been drinking that evening. As a
member of the EOD flight, Ms. KF was on call the night of the charged of-
fense—meaning that if EOD personnel were needed for an emergency situation
after hours, she was the person designated to respond. Because of her on-call
status, she should not have been drinking alcohol that evening. The following
day, AFOSI investigators interviewed Ms. KF. She told the investigators that
on the night of the assault, she drank approximately three beers and a “rocks
glass”-sized cup of whiskey. She further informed the investigators that she
eventually vomited as a result of her alcohol consumption. Ms. KF’s disclosures
about drinking that night were all contained in the AFOSI report of investiga-
tion, which was provided to Ms. KF’s commander.
On 21 September 2019, after the referral of charges against Appellant, Ap-
pellant’s trial defense counsel made a specific request for any evidence of im-
munity provided to any witness. On 3 October 2019, trial counsel responded to
the request and indicated no immunity had been granted to any witness.6 On
13 November 2019, trial counsel disclosed to Appellant’s counsel that Ms. KF
was on standby on the night of the assault and therefore was not supposed
consume any alcohol.7 In response to this disclosure, trial defense counsel
emailed the trial counsel and asked if Ms. KF had received any discipline for
drinking that night; trial counsel responded that Ms. KF had not been disci-
plined. Trial counsel then sent defense counsel the standby letter listing Ms.
KF as the on-call person on the night of the charged offense.
5 Some of the facts in this section were received via post-trial declarations that were
attached to the record. As these declarations pertained to issues raised by materials in
the record that were not fully resolvable by those materials, they were considered by
the court consistent with United States v. Jessie, 79 M.J. 437, 444 (C.A.A.F. 2020).
6 Trial defense counsel also noted that their discovery request constituted “a continuing
request.” Although trial counsel did not specifically respond to this statement, trial
counsel did note at various points that discovery was “ongoing” and that it would sup-
plement its discovery responses as it received additional information.
7 Trial counsel also stated, “The Government is aware of its ongoing obligations and
will disclose any other information in the scope of Brady or Giglio.” See Giglio v. United
States, 405 U.S. 150 (1972); Brady v. Maryland, 373 U.S. 83, 87 (1963).
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United States v. Emas, No. ACM 40020
On 6 December 2019, approximately 11 months before Appellant’s court-
martial, a “Grant of Testimonial Immunity and Order to Testify” for Ms. KF
was signed by the convening authority. A copy of the immunity letter was not,
however, provided to Appellant’s trial defense counsel. The record does not
clearly indicate whether Ms. KF knew that she had been granted immunity
prior to testifying at Appellant’s trial.8 During Appellant’s court-martial, both
trial counsel and trial defense counsel questioned Ms. KF regarding her alcohol
consumption on the night of the assault. Ms. KF testified on direct examination
that she drank three beers and a glass of whiskey on the night of the assault,
and that she vomited due to the amount of alcohol she consumed. On cross-
examination, Ms. KF admitted that she was on standby that night, and knew
she was not supposed to consume alcohol while on standby, but drank alcohol
anyway. Trial defense counsel continued his cross-examination by asking:
[Trial Defense Counsel (TDC):] And you were actually on call
that night, is that right?
[Ms. KF:] Yes.
[TDC:] You and another [S]enior [A]irman?
[Ms. KF:] Yes.
[TDC:] Meaning you could have been called into work at any
point?
[Ms. KF:] Yes.
[TDC:] And as an NCO [(noncommissioned officer)] in your unit
you were the team chief on call, is that right?
[Ms. KF:] Yes.
[TDC:] So then you said you drank three beers and some whiskey
– – well, you said you drank three beers outside, is that right?
And then at least one beer inside and some whiskey? You said
you all watched – –
[Military Judge:] Was there an answer?
[Ms. KF:] Yes, sir. I nodded, but yes.
Trial defense counsel later questioned Staff Sergeant (SSgt) KM, who was
Ms. KF’s close friend, roommate, and also a member of the same EOD flight,
8 A paralegal at JBMDL signed a memorandum, dated 27 January 2021, indicating
that trial counsel informed Ms. KF’s Special Victim’s Counsel (SVC) of the grant of
immunity. However, this memorandum does not specify the date on which trial counsel
provided this information to the SVC, or whether or when the information was pro-
vided to Ms. KF.
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United States v. Emas, No. ACM 40020
about the standby program. SSgt KM testified that the job of the EOD flight
was essentially to defuse bombs, and that the unit had certain members who
were on standby status to address emergency calls off-base or after hours to
handle unexploded ordinance. During closing argument defense counsel ar-
gued:
[Ms. KF] is on the bomb squad, someone whose job it is to clear
and make safe unexploded ordnances on base, off base, wherever
it might happen and she needs to be ready to do that. And for
whatever reason, this night, she’s more interested in staying
home and getting drunk with [Appellant] then [sic] she is stay-
ing ready to do her job. That should give you pause.
In closing argument, trial defense counsel also referred to SSgt KM’s testimony
on the matter of Ms. KF’s drinking while on call: “[SSgt KM] did tell you that
[Ms. KF] was on-call or that what it means to be an on-call EOD tech . . . and
help you understand why it’s not a good thing to get hammered drunk when
you are on-call as an EOD tech.” Trial defense counsel also used a slide presen-
tation during closing argument; the slide addressing the evidence of what hap-
pened before the rape and sexual assaults noted that Ms. KF was drinking and
also noted that she was on call.
At the time the immunity memorandum was signed, as well as at the time
of her testimony, Ms. KF was a civilian.
2. Law
“The suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material to guilt or
punishment, irrespective of the good faith or bad faith of the prosecution.”
United States v. Coleman, 72 M.J. 184, 185 (C.A.A.F. 2013) (citing Brady v.
Maryland, 373 U.S. 83, 87 (1963)).
In addition to this due-process right, “[a] military member also has the right
to obtain favorable evidence under Article 46, UCMJ, 10 U.S.C. § 846 (2006),
as implemented by [Rules for Court-Martial] 701−703.” Coleman, 72 M.J. at
186–87 (footnotes omitted). The United States Court of Appeals for the Armed
Forces (CAAF) has found that Article 46, UCMJ, as implemented, “provide[s]
greater statutory discovery rights to an accused than does his constitutional
right to due process.” Id. at 187 (citing United States v. Roberts, 59 M.J. 323,
327 (C.A.A.F. 2004) (additional citation omitted)).
In evaluating disclosure issues, we employ a two-step analysis. First, we
determine whether the information or evidence at issue was subject to disclo-
sure. Second, if there was nondisclosure, we test the effect of the nondisclosure
on the appellant’s trial. Roberts, 59 M.J. at 325.
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United States v. Emas, No. ACM 40020
The CAAF has “adopted two appellate tests for determining materiality
with respect to the erroneous nondisclosure of discoverable evidence.” Roberts,
59 M.J. at 326 (citation and footnote omitted). “The first test applies to those
cases in which the defense either did not make a discovery request or made
only a general request for discovery.” Roberts, 59 M.J. at 326. “Once the appel-
lant demonstrates wrongful nondisclosure under those circumstances, the ap-
pellant will be entitled to relief only by showing that there is a ‘reasonable
probability’ of a different result at trial if the evidence had been disclosed.”
Roberts, 59 M.J. at 326–27 (citations omitted). The second test applies to cases
“[w]here an appellant demonstrates that the Government failed to disclose dis-
coverable evidence in response to a specific request or as a result of prosecuto-
rial misconduct.” Roberts, 59 M.J. at 327. Once the appellant demonstrates
wrongful nondisclosure under those circumstances, “the appellant will be en-
titled to relief unless the Government can show that nondisclosure was harm-
less beyond a reasonable doubt.” Roberts, 59 M.J. at 327 (citation omitted). The
CAAF has further stated that “[f]ailing to disclose requested material favora-
ble to the defense is not harmless beyond a reasonable doubt if the undisclosed
evidence might have affected the outcome of the trial.” Coleman, 72 M.J. at 187
(citation omitted).
3. Analysis
The Government and Defense dispute whether a valid grant of immunity
existed in this case, and whether Ms. KF was actually informed about the grant
of immunity prior to testifying. For the purposes of deciding this assignment
of error, we will assume without deciding that a valid grant of testimonial im-
munity for Ms. KF was signed by the convening authority, and that this grant
of immunity was not disclosed to trial defense counsel prior to trial. Because
trial defense counsel specifically requested information related to grants of im-
munity for any witness, we review this error under the heightened standard of
harmlessness beyond a reasonable doubt.
For the following reasons, we conclude that the Government’s failure to
disclose the grant of immunity was harmless beyond a reasonable doubt. First,
it is evident from the record that the Defense was aware of Ms. KF’s miscon-
duct for which the immunity was provided. In fact, the record demonstrates
the Defense was aware of the misconduct months before trial. Armed with the
knowledge of the misconduct, the Defense conducted an effective cross-exami-
nation of Ms. KF, during which trial defense counsel specifically questioned
Ms. KF on her motive to fabricate based on her drinking while on call the night
of the assault. Additionally, the Defense made use of this information during
its closing argument, by again referencing Ms. KF’s decision to drink while on
call. Had the Defense been aware of the immunity, trial defense counsel may
have been able to ask Ms. KF about said immunity. However, from the outset
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United States v. Emas, No. ACM 40020
of the investigation—and well before any immunity was provided—Ms. KF
openly acknowledged that she was drinking while on call. This admission on
her part would limit the effectiveness of any claim that immunity impacted her
version of events.
Second, even if the Defense had knowledge of the immunity, we find that
the Government would have been able to successfully rebut any claim that Ms.
KF fabricated her rape and sexual assault claims to cover up her own miscon-
duct. Here, Ms. KF’s alcohol use was discovered because she called 911 to re-
port the rape and sexual assaults. Ms. KF then provided numerous statements,
in multiple settings, that were substantially consistent with her testimony at
trial. In fact, her statements to law enforcement were not only consistent about
the events, but were also consistent about the amount of alcohol she consumed.
This information rebuts a claim of motive to fabricate and also rebuts the ar-
gument that Ms. KF changed her testimony at trial as a result of being granted
immunity.
Third, because Ms. KF had separated from the Air Force by the time of
Appellant’s court-martial, we conclude that Ms. KF’s immunity from prosecu-
tion for a purely military offense would have had little or no impact on her trial
testimony.
Finally, we find that the strength of the Government’s case supports our
conclusion that the requested information would not have affected the outcome
of the trial. Here, we note that Ms. KF’s testimony was consistent with prior
statements she made during the investigation. We find that her testimony at
trial was supported by additional evidence admitted at trial, including her
emotional 911 call following the assault and the police body-camera footage
that captured her frantic state immediately following the assault. We also note
Appellant’s strange behavior on the night of the assault belies his professed
innocence. Here, both the physical and DNA evidence admitted at trial directly
contradict Appellant’s numerous inconsistent statements about a possible in-
truder assaulting Ms. KF. Lastly, we note that the DNA evidence admitted at
trial directly supports Ms. KF’s claims that the perpetrator of the rape and
sexual assault was Appellant.
For these reasons, we find that the failure to disclose Ms. KF’s immunity
did not affect Appellant’s trial. Therefore, we conclude the failure to disclose
this information was harmless beyond a reasonable doubt.
B. Ms. KF’s Prior Consistent Statements
Appellant claims that the military judge erred when he allowed the Gov-
ernment to admit two video clips of Ms. KF’s interview with investigators as
prior consistent statements under Mil. R. Evid. 801(d)(1)(B)(ii). Specifically,
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United States v. Emas, No. ACM 40020
Appellant contends that the Government impeached Ms. KF with its own wit-
ness and documentary evidence, and that the military judge generally misun-
derstood the law on admitting prior consistent statements. We are not per-
suaded by Appellant’s arguments and determine that no relief is warranted.
1. Additional Background
Shortly after the incident, on 23 September 2018, Ms. KF was taken to the
hospital and a sexual assault examination was conducted. In addition to gath-
ering the forensic evidence detailed above, Ms. KF also discussed some of the
details of assault with a sexual assault nurse examiner during the exam. The
nurse examiner prepared a report documenting the examination, which in-
cluded statements Ms. KF made to the nurse examiner. The following day,
AFOSI agents interviewed Ms. KF, and that interview was video-recorded.
The first witness to testify at trial was Ms. KF. On direct examination, Ms.
KF testified that Appellant penetrated her anus with his penis, and that while
he was doing so, he “took his hand and he put it against the upper part of [her]
throat and . . . pulled [her] neck towards him.” She also testified that the force
with which he was holding her was enough to prevent her from moving away.
Ms. KF also explained that while this was happening, she “couldn’t breathe
properly.” Ms. KF further testified that she started fighting back “when [she]
started not being able to breathe” and thought she “might actually die” because
she “couldn’t breathe.”
On cross-examination, trial defense counsel asked Ms. KF about different
or inconsistent information she had provided to the nurse examiner on 23 Sep-
tember 2018. For example, trial defense counsel asked whether in that inter-
view she had “denied all symptoms of strangulation” and denied changes in
her breathing during the assault. Ms. KF responded that she did not recall if
she denied the strangulation or breathing changes. Trial defense counsel then
engaged in the following exchange with Ms. KF regarding her statements to
the nurse examiner about Appellant penetrating her anus with his penis:
[TDC:] Now you testified on direct that you were absolutely pos-
itive that his penis was in your anus, is that correct?
[Ms. KF:] Yes.
[TDC:] Absolutely positive?
[Ms. KF:] Yes.
[TDC:] And you also testified, again, you just said it that you
were seen by a nurse [examiner] that night, is that right?
[Ms. KF:] Yes.
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United States v. Emas, No. ACM 40020
[TDC:] And you gave an account of specifically that encounter
with the anus, is that right?
[Ms. KF:] Yes.
[TDC:] And it was important to be honest that night, is that cor-
rect?
[Ms. KF:] Yes.
[TDC:] Just like it is important to be honest now, is that right?
[Ms. KF:] Yes.
[TDC:] And you were actually there seeing the nurse [examiner]
for medical treatment, is that right?
[Ms. KF:] Yes.
[TDC:] And so the nurse [examiner] you told her that he tried to
but he couldn’t, is that correct?
[Ms. KF:] That is accurate. There was no lubrication so he was
unable.[9]
After Ms. KF testified, the Government presented testimony from the sex-
ual assault nurse examiner. During her testimony, and without objection, the
Government admitted the report she prepared detailing Ms. KF’s sexual as-
sault examination. The report was also published to the court members during
her testimony. The report, on its face and after trial counsel’s direct examina-
tion, indicated that Ms. KF’s statements to the nurse examiner were generally
consistent with Ms. KF’s testimony at trial—specifically, that Appellant put
his hand on Ms. KF’s neck from behind to restrain her during the sexual as-
sault. The report contains three possible references to Appellant strangling Ms.
KF. First, in the history Ms. KF provided to the nurse examiner, Ms. KF told
the nurse examiner that while Appellant was behind her, he “put his hand on
her throat to restrain her.” Second, the report has boxes checked reflecting that
Ms. KF was physically restrained by hands during the assault. Finally, the
9 On redirect, Ms. KF was asked by trial counsel to explain to the members what she
meant by “there was no lubrication.” Ms. KF testified, “I remember that he got it in
and then was attempting to move in and out but it – – it wasn’t working.” Trial counsel
then asked Ms, KF, “Couldn’t move it in and out. When you say he got it in, can you
just describe how far in?” Ms. KF responded, “Not – – not very. The tip, maybe a little
more.” Finally, trial counsel asked Ms. KF, “So the tip of his penis penetrated your
anus, it went in even though it wasn’t very far and he tried to penetrate more but
couldn’t, is that accurate?” Ms. KF responded, “Yes.”
13
United States v. Emas, No. ACM 40020
report contains a strangulation worksheet that indicates Ms. KF informed the
nurse examiner that strangulation occurred from behind her, with one hand.
During cross-examination of the nurse examiner, trial defense counsel
questioned her on possible inconsistent statements that Ms. KF made to her.
Specifically trial defense counsel asked whether Ms. KF had mentioned any
breathing changes during the strangulation, and she responded that Ms. KF
had not. Defense counsel also elicited testimony from the nurse examiner that
she obtained the history of the sexual assault directly from Ms. KF. Trial de-
fense then confirmed that Ms. KF told the nurse examiner that Appellant
“tried to put his penis in [her] butt but couldn’t.”
Following the testimony of both Ms. KF and the nurse examiner, the court
held an Article 39(a), UCMJ, session regarding the Government’s desire to in-
troduce two clips from Ms. KF’s video-recorded interview with AFOSI as prior
consistent statements. The first clip was approximately one minute and 23 sec-
onds in length. In this clip, AFOSI agents asked Ms. KF if Appellant had
“choked,” restrained, or struck her during the assault. Ms. KF responded that
Appellant “choked her” after he penetrated her with his fingers, and explained
that Appellant was still behind her with his hands on her throat. An agent
then asked Ms. KF if her airway was closed off, and Ms. KF answered, “Yeah,
and I wasn’t comfortable. And that’s part of the reason that I started hitting
him.” The first clip ended with the agent recounting his understanding of the
order of events as described by Ms. KF, and Ms. KF clarifying that Appellant
was only strangling her when his penis was penetrating her anus—not when
he was penetrating her vagina. The second clip was approximately ten seconds
long. In this clip, Ms. KF stated to investigators that Appellant penetrated her
anus with his penis.
During the Article 39(a), UCMJ, session, the Government argued that trial
defense counsel had opened the door to these prior consistent statements by
eliciting testimony about purportedly inconsistent statements Ms. KF had
made to the nurse examiner—specifically, statements about whether Appel-
lant actually penetrated Ms. KF’s anus with his penis, and whether Appellant
cut off Ms. KF’s airway or impeded her breathing while strangling her. Trial
defense counsel objected to the admission of both clips. Trial defense counsel
argued that it was the Government’s introduction of the nurse’s report that
had raised the inconsistencies with Ms. KF’s testimony, and further, that the
clips were not consistent with Ms. KF’s testimony at trial. The military judge,
over defense objection, ruled that both clips were admissible as prior consistent
statements of Ms. KF under Mil. R. Evid. 801(d)(2)(B)(ii). In reaching his rul-
ing, which was done on the record, from the bench, and without actually view-
ing the two clips, the military judge also relied on the United States Army
14
United States v. Emas, No. ACM 40020
Court of Criminal Appeals’ reasoning in United States v. Finch, 78 M.J. 781 (A.
Ct. Crim. App. 2019), aff’d, 79 M.J. 389 (C.A.A.F. 2020).
2. Law
We review “a military judge’s decision to admit evidence for an abuse of
discretion.” United States v. Frost, 79 M.J. 104, 109 (C.A.A.F. 2019) (citing
United States v. Humpherys, 57 M.J. 83, 90 (C.A.A.F. 2002)). A military judge
abuses his discretion if his findings of fact are clearly erroneous, his decision
is influenced by an erroneous view of the law, or his decision is outside the
range of choices reasonably arising from the applicable facts and law. United
States v. Kelly, 72 M.J. 237, 242 (C.A.A.F. 2013). “[W]here the military judge
places on the record his analysis and application of the law to the facts, defer-
ence is clearly warranted.” United States v. Flesher, 73 M.J. 303, 312 (C.A.A.F.
2014) (quoting United States v. Downing, 56 M.J. 419, 422 (C.A.A.F. 2002)).
“Hearsay is an out-of-court statement offered to prove the truth of the mat-
ter asserted.” Finch, 79 M.J. at 394 (citing Mil. R. Evid. 801(c)). “Hearsay gen-
erally is not admissible in courts-martial.” Id. (citing Mil. R. Evid. 802).
A prior consistent statement is not hearsay and may be admitted as sub-
stantive evidence if three threshold requirements are met: (1) the declarant
testifies at trial; (2) the declarant is subject to cross-examination about the
statement; and (3) the statement is consistent with the declarant’s testimony.
Id. at 394–95 (citing Mil. R. Evid. 801(d)(1)(B)). Regarding the third threshold
requirement, Mil. R. Evid. 801(d)(1)(B)(i) and (ii) provide that the prior con-
sistent statement must also be offered (i) to rebut an express or implied charge
that the declarant recently fabricated it or acted from a recent improper motive
in so testifying; or (ii) to rehabilitate the declarant’s credibility as a witness
when attacked on other grounds. See also United States v. Ayala, 81 M.J. 25,
28 (C.A.A.F. 2021).
As the CAAF has recently stated:
The plain text of [Mil. R. Evid.] 801(d)(1)(B)(ii) indicates that a
prior consistent statement is admissible when it serves “to reha-
bilitate the declarant’s credibility as a witness when attacked on
another ground.” The rule’s mention of “another ground” refers
to one other than the grounds listed in [Mil. R. Evid.]
801(d)(1)(B)(i): recent fabrication or an improper influence or
motive in testifying. The rule itself does not specify what types
of attacks a prior consistent statement under [Mil. R. Evid.]
801(d)(1)(B)(ii) is admissible to rebut, but the Drafters’ Analysis
lists “charges of inconsistency or faulty memory” as two exam-
ples.
Finch, 79 M.J. at 395 (citation omitted).
15
United States v. Emas, No. ACM 40020
In sum, in order for a statement to be admissible under Mil. R. Evid.
801(d)(1)(B)(ii), it must satisfy the following five requirements:
(1) the declarant of the out-of-court statement must testify, (2)
the declarant must be subject to cross-examination about the
prior statement, (3) the statement must be consistent with the
declarant’s testimony, (4) the declarant’s credibility must have
been “attacked on another ground” other than the ones listed in
[Mil. R. Evid.] 801(d)(1)(B)(i), and (5) the prior consistent state-
ment must actually be relevant to rehabilitate the witness’s
credibility on the basis on which he or she was attacked.
Finch, 79 M.J. at 396.
To meet the criteria for a prior consistent statement, a declarant’s out-of-
court statement “need not be identical in every detail to the declarant’s . . .
testimony at trial.” Id. at 398 (omission in original) (quoting United States v.
Vest, 842 F.2d 1319, 1329 (1st Cir. 1988)).
If a military judge has erred in admitting evidence, the Government bears
the burden of establishing that the erroneous admission was harmless. Frost,
79 M.J. at 111 (citation omitted). For preserved nonconstitutional evidentiary
errors, the test for prejudice is “whether the error had a substantial influence
on the findings.” United States v. Kohlbek, 78 M.J. 326, 334 (C.A.A.F. 2019)
(quoting United States v. Fetrow, 76 M.J. 181, 187 (C.A.A.F. 2017)). In conduct-
ing this prejudice analysis, we weigh four factors: (1) the strength of the Gov-
ernment’s case; (2) the strength of the Defense’s case; (3) the materiality of the
erroneously admitted evidence; and (4) the quality of the erroneously admitted
evidence. Id. (citations omitted).
We may affirm a military judge’s ruling when the military judge reaches
“the correct result, albeit for the wrong reason.” United States v. Bess, 80 M.J.
1, 12 (C.A.A.F. 2020) (quoting United States v. Robinson, 58 M.J. 429, 433
(C.A.A.F. 2003)).
3. Analysis
Addressing Appellant’s first contention—that the admission of Ms. KF’s
prior consistent statements was erroneous because the Government itself in-
troduced both Ms. KF’s trial testimony and her “inconsistent” statements to
the nurse examiner—we find that the record sufficiently establishes that it
was the trial defense counsel’s cross-examination of Ms. KF that raised two
potential inconsistencies. We also note again that the testimony of the nurse
examiner was offered without objection.
With regards to the first video clip, Ms. KF testified on direct examination
that Appellant “took his hand and he put it against the upper part of [her]
16
United States v. Emas, No. ACM 40020
throat and . . . pulled [her] neck towards him.” She further testified that the
force with which Appellant held her was enough to prevent her from moving
away. Ms. KF also explained that while this was happening, she “couldn’t
breathe properly.” Ms. KF further testified that she started fighting back
“when [she] started not being able to breathe” and that she thought she “might
actually die” because she “couldn’t breathe.” On cross-examination, trial de-
fense counsel attempted to point out a perceived inconsistency between Ms.
KF’s testimony and the statement she provided to the nurse examiner—specif-
ically, by eliciting testimony from Ms. KF that she didn’t remember whether
or not she told the nurse examiner that her breathing was not impacted. Like-
wise, regarding the second video clip, Ms. KF testified that Appellant pene-
trated her anus with his penis. Again, during cross-examination, it was trial
defense counsel who pointed out an inconsistency between Ms. KF’s testimony
during direct examination and the statement she made to the nurse exam-
iner—specifically, by eliciting testimony that Ms. KF told the nurse examiner
Appellant was unable to penetrate her anus with his penis because “[t]here
was no lubrication.”
Furthermore, we find that the record sufficiently demonstrates that the
nurse examiner’s report regarding the sexual assault examination was gener-
ally consistent with Ms. KF’s testimony, and did not raise any inconsistencies
concerning Ms. KF’s testimony that Appellant put his hand on her neck to re-
strain her during the assault. As noted above, the report itself contains three
notes or references to either strangulation or Appellant’s hands on Ms. KF’s
neck. It was trial defense counsel who suggested—during cross-examination of
the nurse examiner—that Ms. KF’s testimony was inconsistent with what she
told the nurse examiner. Here, trial defense counsel sought to capitalize on the
point and use it to attack Ms. KF’s credibility by suggesting Ms. KF was lying
during her testimony about whether or not her breathing was impacted—since
there was nothing in the nurse examiner’s report about it—or that Ms. KF’s
memory was faulty regarding what she originally told the nurse examiner. We
also note that prior to trial defense counsel’s questioning, it appeared possi-
ble—based on what was in the report—that the statement regarding Ms. KF
not being able to breathe was either left out of the report or perhaps that the
nurse examiner did not ask that specific question during the examination. In
sum, we find that trial defense counsel raised the inconsistencies during his
cross-examination of Ms. KF and the nurse examiner.
As to Appellant’s second argument—that the military judge erred in admit-
ting the two clips due to his erroneous application of the law, and that the error
was caused by the fact that military judge did not review either of the video
clips prior to making his ruling—we first note that it is not clear from the rec-
ord why the military judge did not review both video clips prior to issuing his
ruling. However, the record indicates that counsel described the content of the
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United States v. Emas, No. ACM 40020
videos to the military judge and articulated how the content was consistent
with Ms. KF’s testimony. As our superior court has stated, “the proper course
of action [is] for the military judge to review the proffered evidence before mak-
ing an admissibility determination.” Finch, 79 M.J. at 397. It is also not clear
why the military judge did not more clearly articulate his findings and analysis
on the record. It is evident that he did not take a recess to prepare his ruling.
In general, the military judge’s ruling was convoluted, and at times it appeared
that he was thinking out loud. Because of these deficiencies, we do not benefit
from a clear understanding of his reasoning and analysis, and therefore con-
clude that his ruling warrants little deference. However, after analyzing the
statements and applying the five criteria for admissibility of a prior consistent
statement, we find that the military judge correctly applied the law and ulti-
mately reached the proper result.
We find that the first video clip (KF_1) meets all five criteria for a prior
consistent statement under Mil. R. Evid. 801(d)(1)(B)(ii), and that the military
judge’s admission of the statements contained in that video clip was not an
abuse of discretion. The first two criteria were not contested; it is clear from
the record that Ms. KF both testified at trial and was subject to cross-exami-
nation. We also find the third criterion was met. Ms. KF testified during direct
examination that Appellant placed his hand on her neck while he was pene-
trating her anus with his penis, and that it was difficult for her to breathe. On
cross-examination, trial defense counsel elicited acknowledgements from Ms.
KF that she understood how important it was to be honest to the nurse exam-
iner following the sexual assault, and that she did not mention to the nurse
examiner that her breathing was inhibited. We find that the short, tailored
video clip offered by the Government—one minute and 23 seconds in length—
was consistent with Ms. KF’s testimony and sufficiently showed Ms. KF telling
AFOSI agents that her airway was inhibited. The fourth criterion was also
met, because trial defense counsel attacked Ms. KF’s testimony on another
ground outside of Mil. R. Evid. 801(d)(1)(B)(i). Again, trial defense counsel at-
tacked Ms. KF’s credibility by suggesting her trial testimony was factually dif-
ferent from her statements to the nurse examiner and thus was less worthy of
belief—a point that trial defense counsel again made during his cross-exami-
nation of the nurse examiner. As for the fifth criterion, we agree with the mil-
itary judge that the prior consistent statement contained in the first video clip
was being offered to rehabilitate Ms. KF’s credibility.
We also find the second video clip (KF_2) met all five criteria for a prior
consistent statement, and that the military judge’s admission of the statement
contained in the second video clip was not an abuse of discretion. The first
three criteria are again not contested. First, Ms. KF testified at trial. Second,
Ms. KF was subject to cross-examination. Third, Ms. KF’s statement to AFOSI
18
United States v. Emas, No. ACM 40020
in the video clip was consistent with her testimony. Here, Ms. KF clearly tes-
tified that Appellant penetrated her anus with his penis, and the short video
clip—ten seconds in length—shows Ms. KF telling AFOSI investigators that
Appellant penetrated her anus with his penis. We also find the fourth criterion
was established. Here, trial defense counsel again attacked Ms. KF’s general
credibility through the use of Ms. KF’s prior inconsistent statement to the
nurse examiner. He continued this general line of attack by again highlighting
Ms. KF’s inconsistent statement during his cross-examination of the nurse ex-
aminer. We also find the fifth criterion was met, because the second video clip
was offered to rehabilitate Ms. KF’s credibility.
In conclusion, we find that military judge did not abuse his discretion in
admitting both video clips as prior consistent statements under Mil. R. Evid.
801(d)(1)(B)(ii). Additionally, even if we were to determine that the military
judge abused his discretion, we would not grant relief. Specifically, we have
weighed the four factors outlined in Kohlbek: the (1) strength of the Govern-
ment’s case; (2) strength of the Defense’s case; (3) materiality of the evidence;
and (4) quality of the evidence. 78 M.J. at 334. In doing so, we find that the
error would not have had a “substantial influence on the findings,” and that no
remedy would be warranted. See id. at 334.
C. Police Body Camera Video
Appellant asserts that the military judge abused his discretion when he
overruled trial defense counsel’s objection concerning the admissibility of Of-
ficer MC’s body camera recording from Ms. KF’s house on the night of the as-
sault. Specifically, Appellant argues that the military judge erred in finding
that Officer CL was around the scene at the same time as Officer MC, and
Appellant therefore argues that Officer CL could not properly authenticate the
recording from Officer MC’s body camera. We disagree with Appellant’s con-
tentions and find no relief warranted.
1. Additional Background
Officer CL and Officer MC of the Florence Township Police Department
responded to Ms. KF’s house after she called 911. Both officers were wearing
body cameras that captured video and audio during the response call. Officer
CL testified at trial; however, Officer MC did not. The Government admitted
recordings from both officers’ cameras, by establishing the recordings’ authen-
ticity through the testimony of Officer CL.
Officer CL testified during an Article 39(a), UCMJ, session that was held
specifically to address the admissibility of the body camera videos. Officer CL
testified that the body cameras were department issued and that wear of the
body cameras was required under the police department’s policy. Officer CL
stated that he knew that both of the cameras were working that night because
19
United States v. Emas, No. ACM 40020
officers are required to do a check of the body cameras before they go on shift,
and are not allowed to go on shift if the cameras are not working. Officer CL
testified that the body cameras are activated and start recording when either
the individual officer manually presses a button on the camera to activate the
camera, or automatically when the emergency lights on the officer’s patrol car
are turned on. According to Officer CL, the police department’s protocol re-
quires that the cameras are activated and recording when an officer starts a
call response, and continue recording until the end of the call or until the police
officer is in another location—such as the police station—where there is al-
ready a camera recording events. Officer CL stated that the recordings are then
saved on the body camera and that at the end of the shift, the officers are re-
quired to place their cameras in docks where the recordings are downloaded
onto a server that is only accessible by evidence custodians. Officer CL testified
that that he was able to review recordings from his own body camera as well
as the recordings from Officer MC’s camera. Officer CL testified that based on
his review, both recordings were fair and accurate copies of the recordings from
the officer’s body cameras, that neither recording had been altered, and that
they depicted what actually occurred.
Officer CL’s testimony also established that both he and Officer MC arrived
at Ms. KF’s house at approximately the same time. He explained that but for
a few moments when Officer MC went around the side of the house when he
thought someone was in the backyard, both were within each other’s line of
sight at all times. Officer CL testified they “always try and not leave sight of
each other” when responding to a call. Furthermore, Officer CL testified that
he was in close proximity to Officer MC the entire time of the response.
Trial defense counsel did not object to the admission of the recording from
Officer CL’s body camera. However, he did object to admission of the recording
from Officer MC’s body camera. Trial defense counsel stated that he objected
to the admissibility on the grounds that Officer CL’s body camera did not cap-
ture what “was in front of” Officer MC, and that Officer CL could not “see what
was a fair and accurate depiction of what was happening in front of [Officer
MC] that night.” The military judge ultimately overruled the objection on the
record. The military judge then discussed his reasoning for his ruling at length.
The military judge found the authenticity of Officer MC’s body camera record-
ing had been properly established by the Government—through Officer’s CL’s
testimony, establishing that: the device was capable of recording; the operator
of the equipment was competent; no changes, deletions, or additions had been
made to the recordings; the speakers in the video were identified; and the state-
ments made by those on the recording were voluntary.
20
United States v. Emas, No. ACM 40020
2. Law
We review a military judge’s decision to admit or exclude evidence for an
abuse of discretion. United States v. Clayton, 67 M.J. 283, 286 (C.A.A.F. 2009)
(citation omitted). Under the abuse of discretion standard, we review the mili-
tary judge’s findings of fact under the “clearly erroneous” standard and review
his or her conclusions of law de novo. Id. (citation omitted).
To be admissible, evidence must be properly authenticated. Mil. R. Evid.
901(a). To satisfy the requirement for authentication, “the proponent must pro-
duce evidence sufficient to support a finding that the item is what the propo-
nent claims it is.” Id.Mil. R. Evid. 901(b) provides a non-exhaustive list of evidence that satisfies
the authenticity requirement of Mil. R. Evid. 901(a). For example, evidence
may be authenticated through the testimony of a witness with knowledge “that
an item is what it is claimed to be.” Mil. R. Evid. 901(b)(1). Additionally, evi-
dence about a “process or system” may be authenticated via “[e]vidence de-
scribing a process or system and showing that it produces an accurate result.”
Mil. R. Evid. 901(b)(9).
The proponent of the evidence bears the burden of establishing “a reasona-
ble probability” that the evidence is authentic, and may meet its burden with
direct or circumstantial evidence. United States v. Maxwell, 38 M.J. 148, 150–
51 (C.M.A. 1993).
Once the proponent has made a prima facie showing that the item is what
it purports to be, flaws in the authentication of the item “go to the weight of
the evidence instead of its admissibility.” United States v. Lubich, 72 M.J. 170,
174 (C.A.A.F. 2013) (internal quotation marks and citation omitted).
3. Analysis
Appellant essentially argues that Officer CL could not authenticate the re-
cording from Officer MC’s body camera. We disagree and find that the testi-
mony of Officer CL was sufficient to establish that the recording from Officer
MC’s body camera was what it was claimed to be. Here, Officer CL testified he
and Officer MC responded together to Ms. KF’s house, that the two both re-
mained at Ms. KF’s house the entire time, and specifically that except for a few
brief moments, the two remained in each other’s line of sight the entire time.
He further stated that he was able to review recordings from his own body
camera, as well as the recordings from Officer MC’s camera. He then stated in
no uncertain terms that based on his review of both recordings, they were fair
and accurate copies of the recordings from the officers’ body cameras, and that
neither had been altered nor changed. This testimony provided sufficient evi-
dence to support the military judge’s finding of fact.
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United States v. Emas, No. ACM 40020
Appellant’s focus on the fact that both recordings are not exactly the same,
because Officer CL and Officer MC were not always directly next to each other
during the entire event, is misplaced. The Government is not required to pre-
sent evidence overcoming every possible claim of inaccuracy. The proponent
need only establish that evidence is what the proponent claims it is. Mil. R.
Evid. 901(a). Here the basic foundational requirement was met, and we there-
fore conclude that the military judge did not abuse his discretion in admitting
the recording of Officer MC’s body camera.
D. Trial Counsel’s Closing Argument
Appellant contends that trial counsel committed prosecutorial misconduct
during his closing argument. Specifically, Appellant contends that trial counsel
used an inflammatory hypothetical where he asked the members to consider
the same underlying facts, but where the named victim was a male instead of
a female. Appellant alleges that this amounts to improper argument because
trial counsel asked the members to decide Appellant’s case on an inflammatory
hypothetical—“a homosexual encounter”—rather than the facts adduced at
trial. Appellant asks that we dismiss his convictions and the sentence. We dis-
agree with Appellant’s contentions, find only proper argument, and conclude
no relief is warranted.
1. Additional Background
During his closing argument trial counsel argued as follows concerning a
hypothetical involving two men:
When you go back look at the judge’s instructions on consent; a
freely given agreement to the conduct at issue; a freely given
agreement, all right. An expression of lack of consent through
words or conduct means there is no consent. Lack of verbal or
physical resistance does not constitute consent. And all the sur-
rounding circumstances are to be considered in determining
whether a person gave consent or did not resist because of an-
other person’s actions.
All right, let’s pause for a moment. Let’s pause for a moment and
I just want you to think about this when you are deliberating. If
[Ms. KF] was a man, was a male, and was at the house that
night, would anybody even bat an eye over the facts that are be-
fore this court in evidence right now before the accused went up
the stairs? Everyone would agree there’s no consent. They are
on the back patio, drinking beers. They go inside, they are drink-
ing beer. They’re drinking whiskey. They are watching The Of-
fice, which she described as a comedy. Some of you may be fa-
22
United States v. Emas, No. ACM 40020
miliar with that show. It is not a horror movie. It is not a roman-
tic movie. All right, they’re watching The Office. At some point –
– at some point she discusses with him, hey man, you can crash
at my place if you want. My roommates are out of town. I’ve got
two rooms. You can crash on the couch, whatever you want. All
right, this is her EOD family member in a male-dominated ca-
reer field and she’s invited him over to her house. If these were
two guys would anyone even bat an eye over that fact pattern?
There’s no consent to engage in sexual activity at that point.
And then [Ms. KF] goes outside and throws up. She vomits right
out front and [Appellant] knows that. There’s no consent at that
point, right; a freely given agreement, right. So as you work
through it, break it down phase by phase. Where’s the consent?
There’s absolutely no consent in this case.
In his closing argument, trial defense counsel pointed specifically to the
differences in rank and experience in the Air Force between Ms. KF and Ap-
pellant as factors that would make Appellant spending time alone with Ms. KF
at her house, the two of them drinking together, and Ms. KF’s offer to Appel-
lant to spend the night, inappropriate. Trial defense counsel then argued that
Ms. KF was potentially claiming the sexual acts between her and Appellant
were nonconsensual in an attempt to rationalize the inappropriate situation of
Appellant’s presence at her house that evening. Trial defense counsel also spe-
cifically addressed the hypothetical posed by trial counsel. He pointed out that
the facts established that it was not two males hanging out that night, but
instead, a female and a male. Trial defense counsel also noted it “could’ve been
two males and nobody would have batted an eye but it wasn’t [two] males . . . .
No, this – – this is what a lot of people might call a good date. This might be
what a lot of people consider a romantic time.”
In rebuttal, trial counsel again presented the hypothetical of two men in
the situation of Ms. KF and Appellant, arguing:
Defense spent a lot of time character assassinating [Ms. KF]. It
was inappropriate for her to have an Airman First Class over at
her house. Is it really? An E-5? Like I said, if they were two men,
an E-5 and an E-3, over at the house drinking some beers and
whiskey and watching – – watching TV, is that really inappro-
priate? Or what does it matter?
Trial defense counsel did not object to either of trial counsel’s references to
the hypothetical involving two men.
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United States v. Emas, No. ACM 40020
2. Law
“We review prosecutorial misconduct and improper argument de novo and
where . . . no objection is made, we review for plain error.” United States v.
Voorhees, 79 M.J. 5, 9 (C.A.A.F. 2019) (citing United States v. Andrews, 77 M.J.
393, 398 (C.A.A.F. 2018)). “Plain error occurs when (1) there is error, (2) the
error is plain or obvious, and (3) the error results in material prejudice to a
substantial right of the accused.” United States v. Fletcher, 62 M.J. 175, 179
(C.A.A.F. 2005) (citation omitted). The burden of proof under a plain error re-
view is on the appellant. See United States v. Sewell, 76 M.J. 14, 18 (C.A.A.F.
2017) (citation omitted).
“Improper argument is one facet of prosecutorial misconduct.” Id. (citation
omitted). Prosecutorial misconduct occurs when trial counsel “oversteps the
bounds of that propriety and fairness which should characterize the conduct of
such an officer in the prosecution of a criminal offense.” Fletcher, 62 M.J. at
179 (quoting Berger v. United States, 295 U.S. 78, 84 (1935)). Such conduct “can
be generally defined as action or inaction by a prosecutor in violation of some
legal norm or standard, e.g., a constitutional provision, a statute, a Manual
rule, or an applicable professional ethics canon.” United States v. Hornback, 73
M.J. 155, 160 (C.A.A.F. 2014) (quoting United States v. Meek, 44 M.J. 1, 5
(C.A.A.F. 1996)).
“A prosecutorial comment must be examined in light of its context within
the entire court-martial.” United States v. Carter, 61 M.J. 30, 33 (C.A.A.F.
2005) (citation omitted). “When a trial counsel makes an improper argument
during findings, ‘reversal is warranted only when the trial counsel’s comments
taken as a whole were so damaging that we cannot be confident that the mem-
bers convicted the appellant on the basis of the evidence alone.’” United States
v. Norwood, 81 M.J. 12, 19 (C.A.A.F. 2021) (quoting Andrews, 77 M.J. at 401–
02). “We weigh three factors to determine whether trial counsel’s improper ar-
guments were prejudicial: ‘(1) the severity of the misconduct, (2) the measures
adopted to cure the misconduct, and (3) the weight of the evidence supporting
the conviction.’” Andrews, 77 M.J. at 402 (quoting Fletcher, 62 M.J. at 184).
The lack of a defense objection is “some measure of the minimal impact of
a prosecutor’s improper comment.” See United States v. Gilley, 56 M.J. 113, 123
(C.A.A.F. 2001) (internal quotation marks and citation omitted).
3. Analysis
Citing the portions of the Government’s closing argument quoted above,
Appellant contends that trial counsel used an inflammatory hypothetical, with
homosexual undertones, instead of arguing the facts that were in evidence.
Because the Defense did not object at trial, the initial question is whether trial
counsel’s argument rose to the level of plain or obvious error. A review of trial
24
United States v. Emas, No. ACM 40020
counsel’s argument in context shows that immediately before posing the hypo-
thetical, trial counsel recited, almost verbatim, the military judge’s instruction
on consent. Trial counsel then went on to state that the hypothetical showed
that Ms. KF did not consent. In fact, trial counsel’s argument focused on the
interactions between Appellant and Ms. KF the night of the sexual assault, to
illustrate that none of Ms. KF’s actions—such as offering Appellant a beer, or
a place to sleep on her couch because he was too intoxicated to drive—consti-
tuted consent. While Appellant asserts on appeal that trial counsel asked the
members to envision hypothetical homosexual conduct, we find nothing in trial
counsel’s argument to support that assertion. Moreover, Appellant fails to ex-
plain, and we are at a loss to understand, how Appellant’s conduct would be
any more or less criminal by virtue of the gender of his victim.
Likewise, during his rebuttal argument, trial counsel used the hypothetical
of two men to expressly rebut the Defense’s argument that Ms. KF was trying
to rationalize or avoid taking responsibility for an inappropriate situation of
her own making. Again, placing this portion of the argument in context, trial
counsel’s comments explicitly referred to the Defense’s closing argument, and
again used the hypothetical as an attempt to illustrate the flawed logic in the
theory posed by the Defense, namely, that Ms. KF falsely reported a sexual
assault as an attempt to hide her inappropriate actions of drinking and hang-
ing out with Appellant, who was junior in rank. Trial counsel used the hypo-
thetical to illustrate that Ms. KF’s actions were benign, and that she in no way
consented to the charged conduct. We conclude that trial counsel’s argument
was fair comment based on evidence that was introduced at trial, and was not
plainly erroneous.
Even if we were to assume error that was plain or obvious, Appellant would
not be entitled to relief because he cannot demonstrate prejudice. After consid-
ering the three factors set forth by the CAAF in Fletcher, we conclude such an
error did not materially prejudice Appellant’s substantial rights. As to the first
factor, we find the severity of the error to be slight. The fact that trial defense
counsel did not object to any of these instances is some indication of their im-
materiality. See Gilley, 56 M.J. at 123. In addition, Appellant only points to
two instances where trial counsel mentioned the hypothetical, with one of them
being in trial counsel’s rebuttal argument. Here, trial counsel’s argument
spanned approximately 20 transcript pages, and the rebuttal argument
spanned another three transcript pages. The portions containing the hypothet-
ical covered less than one transcript page. Moreover, the fact that Appellant
was acquitted of one specification of rape indicates that the court members did
not simply convict Appellant wholesale based on trial counsel’s argument, but
instead examined the evidence for each specification and determined Appel-
lant’s guilt on that basis.
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United States v. Emas, No. ACM 40020
With regard to the second Fletcher factor, because the Defense did not ob-
ject, the military judge did not specifically address the allegedly improper ar-
gument. However, the military judge did provide other findings instructions
that we may presume had some prophylactic effect. See United States v. Taylor,
53 M.J. 195, 198 (C.A.A.F. 2000) (“Absent evidence to the contrary, this Court
may presume that members follow a military judge’s instructions.”). Here the
military judge instructed the court members that argument by counsel was not
evidence, and that the members were to decide the issues based on the evidence
and his instructions. More particularly, he instructed that the members, “If,
based on your consideration of the evidence, you are firmly convinced that the
accused is guilty of the offense charged, you must find him guilty.” (Emphasis
added). Not only is there no evidence the court members misused the evidence,
but their mixed findings indicate they did not simply accept everything trial
counsel argued. Furthermore, trial defense counsel cured any issue caused by
trial counsel’s use of the hypothetical by reminding the members that Appel-
lant’s case did not involve two men.
Finally, we find the strength of the evidence significantly favors the Gov-
ernment. The Government presented a compelling case, including the testi-
mony of Ms. KF that proved both lack of consent and defeated any mistake of
fact defense. Ms. KF’s testimony was corroborated by the independent scien-
tific evidence from both the sexual assault examination and the DNA testing,
supporting Ms. KF’s testimony that the sexual acts she alleged had indeed oc-
curred. The Government also presented evidence concerning the 911 call, and
the body camera recordings from Officers CL and MC, to show Ms. KF’s frantic,
inconsolable emotional state shortly after the charged assaults—all of which
supported Ms. KF’s testimony that the sexual acts occurred without her con-
sent. We also note that the evidence presented that Ms. KF was menstruat-
ing—and had a tampon inserted in her vagina at the time of the assault—
further demonstrated Ms. KF’s lack of consent. Finally, Appellant’s bizarre
claims of an intruder in the house provided some evidence of his consciousness
of guilt, which in turn undercut his theory of mistake of fact, and bolstered any
conclusion that sexual acts were nonconsensual. In sum, we find no prospect
that the allegedly erroneous argument played any substantial role in the court
members’ findings.
Weighing the Fletcher factors together and considering trial counsel’s ar-
guments in context, we are confident the court members properly convicted
Appellant on the basis of the evidence alone.
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United States v. Emas, No. ACM 40020
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 find-
ings and the sentence are AFFIRMED.
MEGINLEY, Judge (dissenting):
For the reasons I articulated in United States v. Westcott, No. ACM 39936,
2022 CCA LEXIS 156, at *108–42 (A.F. Ct. Crim. App. 17 Mar. 2022) (Megin-
ley, J., dissenting) (unpub. op.), I would find Appellant was denied equal pro-
tection under the law and would set aside the findings without prejudice.* Not-
withstanding this exception, I agree with the majority’s analysis of the remain-
der of the issues.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
* The majority opinion in Ramos v. Louisiana, ___ U.S. ___, 140 S. Ct. 1390 (2020), did
not specifically address whether a judge’s failure to instruct a jury on an accused’s
right to a unanimous verdict was a “structural error.” A structural error is a defect
“affecting the framework within which the trial proceeds, rather than simply an error
in the trial process itself.” Arizona v. Fulminante, 499 U.S. 279, 310 (1991). Courts
have identified structural error “when a court is faced with ‘the difficulty of assessing
the effect of the error’” or when the error is so fundamental that “harmlessness is ir-
relevant.” United States v. Brooks, 66 M.J. 221, 224 (C.A.A.F. 2008) (citations omitted).
In Appellant’s case, if the military judge’s error was not structural, we could test the
error for harmlessness. However, I would find the right so fundamental that testing
for harmlessness is “irrelevant.”
27