United States v. Campbell ( 2021 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 38875 (reh)
________________________
UNITED STATES
Appellee
v.
Corey J. CAMPBELL
Staff Sergeant (E-5), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 10 February 2021
________________________
Military Judge: Rebecca E. Schmidt (arraignment); Jennifer E. Powell.
Approved sentence: Dishonorable discharge, confinement for 4 years, forfeiture
of all pay and allowances, and reduction to E-1. Sentence adjudged 9 March
2019 by GCM convened at Wright-Patterson Air Force Base, Ohio.
For Appellant: Major Benjamin H. DeYoung, USAF; Robert Feldmeier, Es-
quire.
For Appellee: Major Jessica L. Delaney, USAF; Mary Ellen Payne, Esquire.
Before J. JOHNSON, MINK, and LEWIS, Appellate Military Judges.
Chief Judge J. JOHNSON delivered the opinion of the court, in which Senior
Judge MINK and Senior Judge LEWIS joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
J. JOHNSON, Chief Judge:
Appellant’s case is before this court for the fourth time. At Appellant’s orig-
inal trial in May 2015, a general court-martial composed of a military judge
alone convicted Appellant, contrary to his pleas, of one specification of sexual
assault in violation of Article 120(b)(1)(B), Uniform Code of Military Justice
United States v. Campbell, No. ACM 38875 (reh)
(UCMJ), 10 U.S.C. § 920(b)(1)(B); two specifications of abusive sexual contact
in violation of Article 120(d), UCMJ, 10 U.S.C. § 920(d); one specification of
adultery in violation of Article 134, UCMJ, 10 U.S.C. § 934; and one specifica-
tion of wrongfully providing alcohol to a minor, also in violation of Article 134,
UCMJ, 10 U.S.C. § 934. 1 The military judge sentenced Appellant to a dishon-
orable discharge, confinement for 55 months, forfeiture of all pay and allow-
ances, and reduction to the grade of E-1. The convening authority deferred the
reduction in grade and the adjudged and mandatory forfeitures until action, at
which time he disapproved the adjudged forfeitures and waived mandatory for-
feitures for the benefit of Appellant’s spouse and dependent children, but oth-
erwise he approved the sentence.
In Appellant’s initial appeal to this court, we affirmed the findings and sen-
tence. United States v. Campbell, No. ACM 38875, 2017 CCA LEXIS 153 (A.F.
Ct. Crim. App. 28 Feb. 2017), rev’d, 76 M.J. 440 (C.A.A.F. 2017) (unpub. op.).
The United States Court of Appeals for the Armed Forces (CAAF) granted re-
view, set aside our decision, and remanded the case to this court for further
consideration in light of United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017).
United States v. Campbell, 76 M.J. 440 (C.A.A.F. 2017) (mem.).
On remand, this court again affirmed the findings and sentence. United
States v. Campbell, No. ACM 38875, 2017 CCA LEXIS 754 (13 Dec. 2017),
rev’d, 77 M.J. 366 (C.A.A.F. 2018) (unpub. op.). The CAAF again granted re-
view; on 18 April 2018 it set aside the findings of guilty with respect to the
specification of sexual assault and the two specifications of abusive sexual con-
tact, affirmed the convictions for adultery and wrongfully providing alcohol to
a minor, and set aside the sentence. United States v. Campbell, 77 M.J. 366(C.A.A.F. 2018) (mem.). The CAAF returned the record to The Judge Advocate
General for remand to this court and stated this court “may order a rehearing”
as to the set-aside findings of guilty and the sentence. Id.The record was returned to this court on 1 May 2018. On 12 July 2018, this
court issued an order returning the record to The Judge Advocate General for
remand to the convening authority and authorized a rehearing as to the spec-
ifications of sexual assault and abusive sexual contact and the sentence.
The record was delivered to the convening authority on 18 July 2018. On
20 September 2018, the convening authority referred the sexual assault and
1 Unless otherwise indicated, all references to the punitive articles of the UCMJ are to
the Manual for Courts-Martial, United States (2012 ed.), and all other references to
the UCMJ and to Rules for Courts-Martial and Military Rules of Evidence are to the
Manual for Courts-Martial, United States (2016 ed.).
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United States v. Campbell, No. ACM 38875 (reh)
abusive sexual contact specifications to a general court-martial “for a rehear-
ing and a rehearing on the sentence.” 2 Appellant was arraigned on 5 November
2018 and tried by a general court-martial composed of officer and enlisted
members on 4–9 March 2019. The court-martial found Appellant not guilty of
the two specifications of abusive sexual contact but guilty of the specification
of sexual assault. The court-martial sentenced Appellant to a dishonorable dis-
charge, confinement for four years, forfeiture of all pay and allowances, and
reduction to the grade of E-1. The convening authority disapproved the ad-
judged forfeitures and approved the remaining elements of the sentence.
Before this court once more, Appellant raises seven issues on appeal: (1)
whether the military judge erred in the amount of credit she awarded Appel-
lant for unlawful pretrial punishment; (2) whether a defective referral de-
prived this court of jurisdiction because the convening did not set aside the
sentence before ordering a rehearing; (3) whether the evidence is factually in-
sufficient to sustain his conviction for sexual assault; (4) whether the military
judge erred in failing to sever the charges; (5) whether the approved sentence
in this case violates Article 63, UCMJ, 10 U.S.C. § 863; 3 (6) whether the mili-
tary judge erred in instructing the court members as to incapacity to consent,
an uncharged theory of liability; and (7) whether the military judge erred when
2 The convening authority did not explicitly refer the previously affirmed specifications
of adultery and wrongfully providing alcohol to a minor. At the subsequent trial, the
military judge ruled that these specifications had not been referred and were not before
the court-martial for purposes of determining a sentence. The convening authority’s
General Court-Martial Order No. 5, dated 23 July 2019, states that a rehearing on
these two charges and specifications “was found to be impracticable and a sentence of
no punishment was ordered for those charges and specifications in General Court Mar-
tial Order No. 1, this headquarters, dated 1 May 19.” General Court Martial Order No.
1 is not included with the record of trial for the court-martial under review. As Appel-
lant has asserted neither error nor prejudice arising from the 1 May 2019 order, and
we perceive no prejudice to Appellant, we do not address it further in our review of the
findings and sentence adjudged at the rehearing.
3 Article 63, UCMJ, 10 U.S.C. § 863, provides in pertinent part:
Upon a rehearing . . . no sentence in excess of or more severe than the
original sentence may be approved, unless the sentence is based upon
a finding of guilty of an offense not considered upon the merits in the
original proceedings, or . . . the sentence prescribed for the offense is
mandatory.
3
United States v. Campbell, No. ACM 38875 (reh)
she refused to admit opinion evidence that the victim was attracted to Appel-
lant. 4 In addition, although not raised by Appellant, we consider whether he is
entitled to relief for facially unreasonable post-trial delay. We have carefully
considered issues (2), (5), and (7), and we find they warrant neither further
discussion nor relief. See United States v. Matias, 25 M.J. 356, 361 (C.M.A.
1987). As to the remaining issues, we find no error that materially prejudiced
Appellant’s substantial rights, and we affirm the findings and sentence.
I. BACKGROUND
In the summer of 2014, Appellant was an Air Force recruiter assigned to a
squadron in Cincinnati, Ohio. He lived with his wife at the time 5 and their two
young children. Appellant’s wife was originally from the Cincinnati area, and
her younger sister MH lived in a nearby town. Appellant and his sister-in-law
MH had known each other since MH was in the fourth grade. However, as MH
became older she perceived that Appellant would act “creepy” toward her when
he drank alcohol, so she and her friends began to avoid him on those occasions.
One night in the summer of 2014, Appellant went to a bar in Cincinnati as
part of a group that included his wife, his wife’s sister MH, and MH’s friend
AM, among others. AM was 15 or 16 years old at the time; MH was 16 or 17
years old. According to AM’s testimony at Appellant’s trial, Appellant and his
wife provided five or six alcoholic drinks to AM that night and she became “very
intoxicated.” According to AM, on multiple occasions that night Appellant ap-
proached AM, made flirtatious comments to her, and touched her upper thigh.
When the group was leaving the bar for the night, Appellant was walking be-
hind AM when he grabbed her buttocks with his hand. AM ran forward and
told MH that Appellant had “grabbed [her] butt,” to which MH responded “tell
him to stop.” AM further testified that when the group got into Appellant’s van
to depart, Appellant was seated in the second row. When AM entered the van
to climb past him to get to an empty seat in the back row, Appellant pulled AM
onto his lap and rubbed her thighs over her dress. MH observed Appellant pull
AM onto his lap. According to AM, she did not consent to any of this physical
contact by Appellant, but she did not initially report his behavior to anyone
other than MH. The rehearing court-martial found Appellant not guilty of two
specifications of committing abusive sexual contact on AM.
4 Appellant personally asserts issue (7) pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982).
5 Appellant and his wife divorced prior to Appellant’s rehearing.
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United States v. Campbell, No. ACM 38875 (reh)
On 24 October 2014, Appellant, his wife, his wife’s sister MH, and MH’s
friend KC attended a costume party at the home of one of Appellant’s friends. 6
MH and KC were both 17 years old at the time. MH and KC spent most of the
evening together. Appellant provided MH with alcohol during the party, and
she became intoxicated. According to MH’s testimony at the rehearing, even-
tually KC laid down on a bed in a spare bedroom to sleep. MH’s sister (Appel-
lant’s wife) told MH she should also go to sleep, so MH went into the bedroom
to sleep next to KC. MH testified Appellant went into the room with her, spoke
with her, and put his hand on her thigh while she took off her shoes. MH
pushed Appellant’s hand away, after which Appellant turned off the light and
closed the door. MH fell asleep next to KC.
MH testified that when she awoke, she found she was on her back and Ap-
pellant was on top of her. Appellant had pushed up her skirt and was thrusting
back and forth with his penis penetrating her vagina. MH initially “thought it
was a nightmare,” and moved her head from side to side in an attempt to
“wake” herself. At one point Appellant tried to kiss MH as he continued thrust-
ing, and MH again shook her head. When Appellant finished and got up, MH
curled into a ball on the bed and began crying. MH testified that KC then got
up and began “screaming” at Appellant that he had “just raped” MH. Appellant
argued with KC, claiming that MH had been awake. It seemed to MH that KC
shoved Appellant out of the room and closed the door.
KC also testified at Appellant’s rehearing trial. She estimated that she and
MH spent three or four hours at the party drinking alcohol and playing party
games. KC observed that MH became intoxicated to the point that “she could
hardly stand.” Eventually, KC “felt like [she] had enough,” and she went to lay
down in the spare bedroom. She woke up when MH and Appellant entered the
room; Appellant was trying to get MH to go to sleep, although MH did not want
to. Eventually MH lay down next to KC. KC testified that the lights were out,
but Appellant did not leave. KC was lying on the bed facing away from MH, so
she could not see what was happening. However, she could feel the bed move,
and she could hear Appellant’s voice calling MH by her nickname, asking MH
“is this okay” and “if she liked it,” and saying “You are wild, [M].” 7 MH did not
respond, but was “whimpering.” KC did not move or say anything during the
assault because she was “in shock” and “really scared.” However, when Appel-
lant got up and put his pants back on, KC “jumped” from the bed, began
screaming at Appellant that he had “raped” MH, and pushed Appellant out of
the room. MH was crying on the bed. After KC pushed Appellant from the
6 KC subsequently married and changed her last name. We refer to her by her initials
at the time of the offense.
7 Appellant addressed MH by her nickname.
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United States v. Campbell, No. ACM 38875 (reh)
room, Appellant began knocking on the door and asking “what happened?” At
some point Appellant left, and KC found the owner of the house and told him
what had occurred.
Other witnesses provided conflicting testimony regarding Appellant’s be-
havior immediately after the sexual assault. ST, a friend of Appellant’s, testi-
fied that he was in a bathroom when he heard Appellant knocking on the bed-
room door, asking in a “very calm” tone, “is everything okay?” and “can you let
me in?” In contrast, BS saw Appellant come out of the bedroom where MH had
been sleeping, and then Appellant “started pounding on the door to be let back
in.” BS testified Appellant seemed “pretty frantic” and was “screaming, ‘quit
it, [M], I did not touch you.’” However, there was general agreement among
these two witnesses and others that Appellant drove away in the family van
shortly thereafter, leaving his wife, MH, and KC behind.
MH was taken to a hospital where she underwent a sexual assault forensic
exam. Her pelvic exam indicated redness and swelling on her cervix and a
“clear white fluid” in her vagina. Subsequent forensic analysis indicated the
presence of semen and a DNA profile consistent with Appellant’s. Relying on
forensic testing and reverse extrapolation of a blood sample taken from MH at
the hospital, at Appellant’s trial a forensic toxicologist estimated that MH’s
blood alcohol content around the time of the sexual assault was between 0.111
and 0.156 “grams percent.” 8
The rehearing court-martial found Appellant guilty of sexually assaulting
MH by causing bodily harm, specifically penetrating her vulva with his penis
without her consent.
II. DISCUSSION
A. Unlawful Pretrial Punishment Credit
1. Additional Background
On 9 November 2018, the Defense submitted a motion to dismiss the pend-
ing charges because Appellant “has been unlawfully subject to conditions of
parole constituting both restriction and unlawful pretrial punishment pursu-
ant to Rule for Courts-Martial (R.C.M.) 707 or Article 13, UCMJ, [10 U.S.C. §
813,] and for a period of time excessive under United States v. Moreno, [63 M.J.
129, 142 (C.A.A.F. 2006),] and other case law.” At the time the CAAF set aside
Appellant’s Article 120, UCMJ, convictions on 18 April 2018, Appellant had
8 We understand “grams percent” to be a reference to the measurement of grams of
alcohol per 100 milliliters of blood.
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United States v. Campbell, No. ACM 38875 (reh)
been released from confinement but was on supervised release (parole) pursu-
ant to the 55-month term of confinement imposed on 21 May 2015 at his orig-
inal court-martial. The defense motion explained that the terms of Appellant’s
parole imposed substantial restrictions on his liberty and other interests, in-
cluding inter alia mandatory polygraph examinations and non-confidential sex
offender treatment. Appellant had not been released from his parole as of the
filing of the Defense’s motion on 9 November 2018. The Defense contended Ap-
pellant was entitled to relief under Article 13, UCMJ, because his continued
parole after the CAAF set aside his Article 120, UCMJ, convictions and sen-
tence constituted unlawful pretrial punishment; that pursuant to R.C.M. 707
the military judge should dismiss the charges because Appellant had been sub-
jected to pretrial restriction for more than 120 days; and that pursuant to
Moreno the delay in returning the record from this court to the convening au-
thority following the CAAF’s remand was excessive. The Government opposed
the motion, and in particular contended that dismissal of the charges was not
warranted.
On 28 November 2018, the military judge conducted a hearing on the mo-
tion and received argument from counsel. On 30 November 2018, the conven-
ing authority ordered Appellant’s release from confinement and parole pending
his rehearing.
When the court-martial reconvened on 4 March 2019, the military judge
explained that she denied the motion to dismiss. However, she deferred ruling
on the Defense’s alternative request for other appropriate relief until sentenc-
ing, if any.
After the court-martial found Appellant guilty of sexual assault, the mili-
tary judge readdressed the Defense’s motion. In an oral ruling that she subse-
quently supplemented in writing, the military judge found no violation of
R.C.M. 707 or of due process under Moreno. However, she found the Govern-
ment’s inaction in removing Appellant’s parole status from the time this court
returned the record to The Judge Advocate General on 12 July 2018 until 30
November 2018 was “arbitrary” and raised an inference of punishment that
necessitated relief under Article 13, UCMJ. Accordingly, she ordered that Ap-
pellant be granted “one day credit for each day [he] was under parole supervi-
sion” from 12 July 2018 until the convening authority released Appellant on
30 November 2018, a total of 141 days.
2. Law
“[W]hether [an] appellant is entitled to credit for a violation of Article 13[,
UCMJ,] is a mixed question of fact and law.” United States v. Mosby, 56 M.J.
309, 310 (C.A.A.F. 2002) (citations omitted). We defer to a military judge’s find-
ings of fact unless they are clearly erroneous, whereas we consider de novo
7
United States v. Campbell, No. ACM 38875 (reh)
whether the facts entitle the appellant to additional credit against his sen-
tence. United States v. Williams, 68 M.J. 252, 256 (C.A.A.F. 2010) (citations
omitted). “The burden is on [the] appellant to establish entitlement to addi-
tional sentence credit because of a violation of Article 13[, UCMJ].” Mosby, 56
M.J. at 310 (citing R.C.M. 905(c)(2)).
“Article 13, UCMJ, prohibits two things: (1) the imposition of punishment
prior to trial, and (2) conditions of arrest or pretrial confinement that are more
rigorous than necessary to ensure the accused’s presence for trial.” United
States v. King, 61 M.J. 225, 227 (C.A.A.F. 2005).
Article 67(e), UCMJ, 10 U.S.C. § 867(e), provides in part:
After [the CAAF] has acted on a case, [it] may direct the Judge
Advocate General to return the record to the Court of Criminal
Appeals for further review in accordance with the decision of the
court. Otherwise, unless there is to be further action by the Pres-
ident or the Secretary concerned, the Judge Advocate General
shall instruct the convening authority to take action in accord-
ance with that decision. . . .
A decision of a Court of Criminal Appeals ceases to be inchoate when the
record is returned to the convening authority. See United States v. Rodriguez,
No. ACM 38519 (reh), 2019 CCA LEXIS 35, at *16–17 (A.F. Ct. Crim. App. 30
Jan. 2019) (unpub. op.); United States v. Mancini, No. ACM 38783 (reh), 2018
CCA LEXIS 495, at *10 (A.F. Ct. Crim. App. 16 Oct. 2018) (unpub. op.).
3. Analysis
Appellant contends the military judge erred by excluding the period from
18 May 2018 (the date upon which he asserts the CAAF’s decision setting aside
his Article 120, UCMJ, convictions and sentence became final) 9 until 12 July
2018 (when this court returned the record to The Judge Advocate General for
remand to the convening authority) from her award of day-for-day confinement
credit for illegal pretrial punishment in violation of Article 13, UCMJ. Appel-
lant cites United States v. Miller, 47 M.J. 352, 361–62 (C.A.A.F. 1997), for the
proposition that the Courts of Criminal Appeals and command authorities are
9 Appellant appears to base his reference to 18 May 2018 on an assumption that the
period for the parties to request reconsideration of the CAAF’s 18 April 2018 decision
was 30 days. The Government does not challenge the accuracy of this assertion. As
noted in the procedural history above, the record was returned to this court from the
CAAF on 1 May 2018. We do not resolve the accuracy of Appellant’s assertion regard-
ing the finality of the CAAF’s decision as it is unnecessary to our resolution of the
issue.
8
United States v. Campbell, No. ACM 38875 (reh)
required to effect the “immediate cessation of punishment” after a CAAF man-
date sets aside a sentence. We find no error.
Appellant’s reliance on Miller is misplaced. Among other significant differ-
ences with Appellant’s case, Miller did not address a situation in which the
CAAF remanded the record to a Court of Criminal Appeals for further action
by the lower court. In fact, it did not address the effect of a CAAF opinion at
all, other than to note that the CAAF’s opinions, like those of the Courts of
Criminal Appeals, are not “self-executing,” and that the appellate courts “de-
pend[ ] on the Judge Advocate General and lower officials to execute [their]
orders.” Id. at 361 (citations omitted).
Appellant’s argument suggests that after the CAAF directed that the case
be returned to this court, our role was purely ministerial. It was not. Once the
CAAF decided to set aside the Article 120, UCMJ, findings and the sentence,
in the absence of a request for reconsideration or further action by the Presi-
dent or Secretary, Article 67(e), UCMJ, provided the CAAF two options as to
how to proceed. The CAAF might have elected to return the record to The
Judge Advocate General to instruct “the convening authority to take action in
accordance with [its] decision.” 10 U.S.C. § 867(e). The CAAF elected not to do
this. Instead, it directed The Judge Advocate General to remand the record to
this court for further review in accordance with the CAAF’s decision, and fur-
ther directed this court “may order a rehearing” on the set-aside findings and
the sentence. Campbell, 77 M.J. at 366 (emphasis added); see 10 U.S.C. §
867(e). Of course, in conducting our review, this court was bound by the CAAF’s
decision; but both the text of Article 67(e), UCMJ, and the CAAF’s opinion in-
dicate this court was to review the case once more and exercise discretion in
how to proceed. In short, the matter was still under appellate review and had
not been returned to the convening authority for action. We conclude the mili-
tary judge did not err in finding Appellant was not entitled to relief under Ar-
ticle 13, UCMJ, prior to this court’s 12 July 2018 order returning the record to
The Judge Advocate General for remand to the convening authority.
Appellant argues in the alternative that he is entitled to additional Article
13, UCMJ, credit due to unreasonable “nearly 100-day” appellate delay in re-
turning the record to the convening authority following the CAAF’s 18 April
2018 decision. Appellant’s argument is without merit. As described above, the
CAAF returned the record to this court for further substantive review in ac-
cordance with its decision. The record was returned to The Judge Advocate
General and received by this court on 1 May 2018. According to the Joint
Courts of Criminal Appeals Rules of Practice and Procedure in effect at the
time, “Any brief for an accused shall be filed within 60 days after appellate
counsel has been notified of the receipt of the record in the Office of the Judge
Advocate General.” JT. CT. CRIM. APP. R. 15(b) (2017). Accordingly, the time for
9
United States v. Campbell, No. ACM 38875 (reh)
any supplemental filings by Appellant did not expire until 30 June 2018. Cf.
United States v. Muller, 79 M.J. 359, 361 (C.A.A.F. 2020) (per curiam) (holding
Court of Criminal Appeals rule that contradicted Joint Courts of Criminal Ap-
peals Rule 15(b) was invalid). After no brief was submitted by Appellant, this
court completed its review and issued its order authorizing a rehearing and
returning the record to the convening authority within two weeks thereafter.
We find no inappropriate appellate delay that warrants relief.
B. Factual Sufficiency
1. Law
We review issues of factual sufficiency de novo. United States v. Washing-
ton, 57 M.J. 394, 399 (C.A.A.F. 2002) (citation omitted). Our assessment of fac-
tual sufficiency is limited to the evidence produced at trial. United States v.
Dykes, 38 M.J. 270, 272 (C.M.A. 1993) (citations omitted).
The test for factual sufficiency is “whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, [we are] convinced of the [appellant]’s guilt beyond a reasonable
doubt.” 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 ‘neither a presumption of innocence nor a presumption of guilt’ to
‘make [our] own independent determination as to whether the evidence consti-
tutes proof of each required element beyond a reasonable doubt.’” United States
v. Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (alteration in original)
(quoting Washington, 57 M.J. at 399), aff’d, 77 M.J. 289 (C.A.A.F. 2018). The
evidence need not be “free from conflict” in order to be convincing beyond a
reasonable doubt. Id. (quoting United States v. Lips, 22 M.J. 679, 684
(A.F.C.M.R. 1986)).
In order to convict Appellant of the charged sexual assault in violation of
Article 120, UCMJ, the Government was required to prove beyond a reasonable
doubt: (1) that within the state of Ohio, between on or about 24 October 2014
and on or about 25 October 2014, Appellant committed a sexual act upon MH
by penetrating her vulva with his penis; and (2) that Appellant did so by caus-
ing bodily harm, to wit: penetrating MH’s vulva with his penis without her
consent. See Manual for Courts-Martial, United States (2012 ed.) (MCM), pt.
IV, ¶ 45.a.(b)(1)(B), (g)(1), (g)(3).
The defense of mistake of fact as to consent would apply if Appellant, be-
cause of ignorance or mistake, incorrectly believed that MH consented to the
sexual act. See R.C.M. 916(j)(1). In order to rely on a mistake of fact as to a
consent defense, Appellant’s belief must have been reasonable under all the
circumstances. See id.; see generally United States v. Jones, 49 M.J. 85, 91
10
United States v. Campbell, No. ACM 38875 (reh)
(C.A.A.F. 1998) (citation omitted). Once raised, the Government bears the bur-
den to prove beyond a reasonable doubt that the defense does not exist. R.C.M.
916(b)(1); see United States v. McDonald, 78 M.J. 376, 379 (C.A.A.F. 2019).
2. Analysis
The Government introduced convincing evidence of Appellant’s guilt. The
testimony of MH established that she was sleeping next to her friend KC when
Appellant pushed up her skirt and penetrated her vulva with his penis. At no
point did she consent. Instead, MH was initially confused and turned her head
from side to side in an effort to “wake up.” When Appellant attempted to kiss
her, she again shook her head. As soon as Appellant finished, MH curled into
a ball and began to cry.
KC’s testimony substantially corroborated MH’s testimony. She heard Ap-
pellant come into the bedroom with MH. She heard his voice and felt the bed
shake as he sexually assaulted MH. Although Appellant seemed to be speaking
to MH during the assault, MH never responded but only “whimpered.” When
Appellant got off of MH, MH began to cry.
Forensic evidence also powerfully corroborated MH’s testimony. Appel-
lant’s sperm was found in MH’s vagina. The sexual assault nurse examiner
found redness and swelling on MH’s cervix. Blood alcohol testing confirmed
that MH was significantly intoxicated at the time of the assault, consistent
with the testimony of KC and MH herself, which may have contributed to MH’s
confused reaction when she awoke.
In addition, we find the testimony regarding Appellant’s behavior immedi-
ately after the assault probative. KC testified that after she pushed him out of
the room, he began knocking on the door and asking “what happened,” as if he
had not been present for whatever had occurred inside the room. Similarly, BS
saw Appellant exit the bedroom and then begin pounding on the door to be let
in. BS also heard Appellant “scream” that he “did not touch” MH. ST’s testi-
mony that Appellant was speaking in a “calm” voice asking “is everything
okay” was superficially more favorable to Appellant. However, we find his tes-
timony less reliable because of his long association with Appellant, the fact
that he did not observe Appellant exit the bedroom or directly observe him
outside the door, and in light of the other evidence of the surrounding circum-
stances. Moreover, all of the witnesses including ST agreed Appellant drove
away in the van shortly thereafter, leaving behind Appellant’s wife as well as
MH and KC; the owner of the house described hearing the van’s “tires peeling
out and burning down the street.” We find Appellant’s dissembling behavior
and abrupt departure suggestive of his consciousness of guilt.
On appeal, Appellant contends that his sexual encounter with MH, “while
distasteful,” was consensual. We are not persuaded. Appellant emphasizes
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United States v. Campbell, No. ACM 38875 (reh)
KC’s testimony that he spoke to MH during the sexual act, but there is no
evidence MH affirmatively responded to Appellant or consented in any way.
Appellant suggests KC would have intervened sooner if she truly believed MH
was being sexually assaulted, but we find KC’s explanation credible—that she
initially lay still because she was shocked and afraid. Appellant asserts pur-
ported discrepancies in the testimony among witnesses at the rehearing, and
also asserts discrepancies in the testimony of the same witness at the original
trial and the rehearing, but we find his specific claims largely unconvincing as
well as peripheral to the essential issues. Similarly, we find Appellant’s claims
that MH had a strong motive to falsely claim sexual assault rather than admit
she had betrayed her sister, and that MH suspiciously deleted Facebook mes-
sages about the sexual assault, to be simply unpersuasive in light of the evi-
dence adduced by the Government.
Accordingly, having weighed the evidence in the record of trial and having
made allowances for not having personally observed the witnesses, we are con-
vinced of Appellant’s guilt beyond a reasonable doubt.
C. Severance
1. Additional Background
After arraignment but before Appellant’s trial, the Defense moved to sever
the sexual assault charge and specification from the abusive sexual contact
charge and specifications. The Government opposed the motion.
After conducting a hearing and receiving argument from counsel, the mili-
tary judge denied the motion to sever. In a written ruling she analyzed the
three factors identified in United States v. Curtis, 44 M.J. 106, 128 (C.A.A.F.
1996), rev’d as to sentence on recon, 46 M.J. 129 (C.A.A.F. 1997), as articulated
in United States v. Southworth, 50 M.J. 74, 76 (C.A.A.F. 1999): “(1) whether
the evidence of one offense would be admissible proof of the other; (2) whether
the military judge has provided a proper limiting instruction; and (3) whether
the findings reflect an impermissible crossover.” The military judge found that
although the Government conceded the first factor favored severance, the re-
maining factors weighed against it. Accordingly, she found the Defense had not
met its burden to demonstrate severance was necessary to avoid a “manifest
injustice.” R.C.M. 906(b)(10). However, the military judge further stated “[a]s
part of this ruling, the Government is additionally directed to frame its opening
statement, closing argument and witness examinations so as to maintain [the]
separation” between the sexual assault specification and abusive sexual con-
tact specifications.
When instructing the court members with respect to findings, the military
judge advised, inter alia:
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United States v. Campbell, No. ACM 38875 (reh)
An accused may be convicted based only on the evidence before
the Court and not evidence of a general criminal disposition.
Each offense must stand on its own and you must keep the evi-
dence of each offense separate. Stated differently, if you find or
believe that the accused is guilty of one offense, you may not use
the finding or belief as a basis for inferring, assuming, or proving
that he committed any other offense.
If evidence has been presented which is relevant to more than
one offense, you may consider that evidence with respect to each
offense to which it is relevant. For example, if a person were
charged with stealing a knife and later using that knife to com-
mit another offense, evidence concerning the knife, such as that
the person being in possession of it, or that person’s fingerprints
being found on it, could be considered with regards to both of-
fenses. But the fact that the person’s guilt of stealing the knife
may have been proven, is not evidence that the person is also
guilty of any other offense.
The burden is on the prosecution to prove each and every ele-
ment of each offense beyond a reasonable doubt. Proof of one of-
fense carries with it no inference that the accused is guilty of any
other offense.
2. Law
We review a military judge’s ruling on a motion to sever for an abuse of
discretion. United States v. Giles, 59 M.J. 374, 378 (C.A.A.F. 2004) (citation
omitted). “A military judge abuses [her] discretion when [her] findings of fact
are clearly erroneous, when [she] is incorrect about the applicable law, or when
[she] improperly applies the law.” United States v. Roberts, 59 M.J. 323, 326
(C.A.A.F. 2004).
“Under R.C.M. 906(b)(10), a military judge is required to grant a severance
motion when necessary to avoid a ‘manifest injustice.’” Giles, 59 M.J. at 378.
On appeal, “the appellant must demonstrate more than the fact that separate
trials would have provided a better opportunity for an acquittal;” he must
demonstrate “the ruling caused actual prejudice by preventing the appellant
from receiving a fair trial.” Id. (citations omitted). Appellate courts review such
rulings by applying the same factors employed by the military judge: “(1) Do
the findings reveal an impermissible crossover of evidence? (2) Would the evi-
dence of one offense be admissible proof of the other? (3) Did the military judge
provide a proper limiting instruction?” Id. (citing Curtis, 44 M.J. at 128).
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United States v. Campbell, No. ACM 38875 (reh)
Court members are presumed to follow the military judge’s instructions in
the absence of evidence to the contrary. See United States v. Taylor, 53 M.J.
195, 198 (C.A.A.F. 2000) (citations omitted).
3. Analysis
The military judge did not abuse her discretion in concluding severance
was not required in order to prevent manifest injustice to Appellant. Accepting
that the evidence Appellant committed abusive sexual contact on AM in June
or July 2014 was not admissible to prove Appellant sexually assaulted MH in
October 2014, and vice versa, see generally United States v. Hills, 75 M.J. 350(C.A.A.F. 2016), the military judge nevertheless reasonably anticipated that
she would give appropriate limiting instructions and found the Defense had
not demonstrated a substantial risk of impermissible crossover of the evidence.
The military judge did give appropriate limiting instructions, and the Govern-
ment generally adhered to her direction to present its opening, evidence, and
argument in a manner that kept the charged offenses distinct. Reviewing the
record as a whole, we find no indication the court members failed to follow the
military judge’s instruction or impermissibly relied on evidence of the alleged
abusive sexual contact in order to find Appellant guilty of sexual assault.
Appellant cites the CAAF’s opinion in United States v. Guardado, 77 M.J.
90, 94 (C.A.A.F. 2017), for the principle that “[c]onfusing instructions create a
substantial risk of impermissible crossover which may impermissibly lower the
burden of proof where those instructions appear to suggest that a panel may
find the accused has a general criminal propensity.” However, the confusing
instructions the CAAF addressed in Guardado are entirely absent here. In con-
trast to Appellant’s original trial, which resulted in the CAAF setting aside his
Article 120, UCMJ, convictions for a Hills error, the court members at Appel-
lant’s rehearing did not receive confusing and erroneous instructions that they
could use proof of Appellant’s guilt of one charged sexual offense as evidence
Appellant was guilty of another charged sexual offense, pursuant to Mil. R.
Evid. 413. See id. at 92–93; Campbell, 77 M.J. at 366; see also Hills, 75 M.J. at
353–57. To the contrary, as described above, the military judge provided a clear
anti-spillover instruction.
Appellant contends that the spillover instruction in combination with the
additional instruction that “evidence which is relevant to more than one of-
fense” may be considered “with respect to each offense to which it is relevant”
was confusing. However, he does not challenge the correctness per se of either
instruction. We find that the provision of these two accurate, standard instruc-
tions, which are routinely provided at Air Force courts-martial, did not create
an impermissible risk of spillover or any other manifest injustice. Accordingly,
we conclude the military judge did not abuse her discretion.
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United States v. Campbell, No. ACM 38875 (reh)
D. Instruction on Incapacity to Consent
1. Additional Background
The military judge provided the court members the following instructions,
inter alia, with respect to the charged sexual assault against MH:
In order to find [Appellant] guilty of this offense you must be
convinced by legal and competent evidence beyond a reasonable
doubt:
1) That between on or about 24 October 2014 and on or about 25
October 2014, within the state of Ohio, the accused committed a
sexual act upon [MH];
2) That the accused did so by causing bodily harm to [MH], to
wit: penetrating her vulva with his penis; and
3) That the accused did so without the consent of [MH].
...
“Bodily harm” means any offensive touching of another, however
slight, including any nonconsensual sexual act.
The government alleged the accused committed a sexual act, to
wit: penetrating the vulva of [MH] with his penis, and that the
same physical act also constitutes a bodily harm required for the
charge[d] sexual assault. Under these circumstances, the gov-
ernment also has the burden to prove beyond a reasonable doubt
that [MH] did not consent to the physical act.
“Consent” means a freely given agreement to the conduct at is-
sue by a competent person. An expression or [sic] lack of consent
through words or conduct means there is no consent. Lack of ver-
bal or physical resistance or submission resulting from the use
of force, threat of force, or placing another person in fear does
not constitute consent. . . .
Lack of consent may be inferred based on the circumstances. All
the surrounding circumstances are to be considered in determin-
ing whether a person gave consent or whether a person did not
resist or cease[d] to resist only because of another person’s ac-
tions.
...
Evidence concerning consent to the sexual conduct, if any, is rel-
evant and must be considered in determining whether the gov-
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United States v. Campbell, No. ACM 38875 (reh)
ernment has proven the elements of the offense beyond a rea-
sonable doubt. Stated another way, evidence the victim con-
sented to the sexual conduct, either alone or in conjunction with
the other evidence in this case, may cause you to have a reason-
able doubt as to whether the government has proven every ele-
ment of the offense.
Trial defense counsel did not object to these particular instructions.
During deliberations on findings, one of the court members asked the mili-
tary judge for clarification regarding the terms “freely given agreement” and
“competent person.” The military judge advised the parties she intended to
provide the non-statutory definitions set forth in our sister court’s opinion in
United States v. Pease, 74 M.J. 763, 770 (N.M. Ct. Crim. App. 2015), aff’d, 75
M.J. 180 (C.A.A.F. 2016), that the CAAF subsequently indorsed. Trial defense
counsel did not object to the proposed instruction, but requested an additional
instruction that “there is no blood alcohol content level which is determinative
on the law whether someone is competent.” When the military judge denied
this request, trial defense counsel requested the military judge “instruct the
members of what impaired by and intoxicated means.” The military judge de-
nied this request as well, commenting “I am just going to keep it simple.” The
military judge then instructed the court members:
A competent person is a person who possesses the physical and
mental ability to consent. An incompetent person is a person
who lacks either the mental or physical ability to consent be-
cause he or she is asleep or unconscious, impaired by a drug[,]
intoxicant[,] or other similar substance, or suffering from a men-
tal disease or defect or a physical disability. To be able to freely
make an agreement, a person must first possess the cognitive
ability to appreciate the nature of the conduct in question and
then possess the mental and physical ability to make and com-
municate a decision regarding that conduct to the other person.
However, if the person has the ability to appreciate the conduct
and communicate lack of consent but does not do so out of fear
or some other external influence counteract during [sic] volun-
tariness the sexual conduct is not voluntary. A person is incapa-
ble of consenting when he or she lacks the cognitive ability to
appreciate the sexual conduct in question or the physical or men-
tal ability to make or to communicate a decision about whether
he or she agrees to the conduct.
The military judge then asked the parties if they had objections to the in-
struction or requests for additional instructions. Trial defense counsel re-
sponded, “None other than have been previously noted.” The court members
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United States v. Campbell, No. ACM 38875 (reh)
indicated this instruction answered the question, and requested a written copy.
The members asked no further questions about consent or competency before
delivering their findings.
2. Law
Generally, we review the adequacy of the military judge’s instructions de
novo. United States v. Dearing, 63 M.J. 478, 482 (C.A.A.F. 2006) (citations
omitted). However, the CAAF has held that when an appellant affirmatively
declines to object to the military judge’s instructions, the issue is waived.
United States v. Davis, 79 M.J. 329, 332 (C.A.A.F. 2020) (citations omitted),
cert. denied, __ S. Ct. __, 2020 U.S. LEXIS 4468 (5 Oct. 2020). The CAAF will
not review waived issues, because affirmative waiver leaves no error to correct
on appeal. Id. (citation omitted). However, pursuant to Article 66(c), UCMJ, 10
U.S.C. § 866(c), the Courts of Criminal Appeals have the unique statutory re-
sponsibility to affirm only such findings of guilty and so much of the sentence
that they find are correct and “should be approved.” This includes the authority
to address errors raised for the first time on appeal despite waiver of those
errors at trial. See United States v. Hardy, 77 M.J. 438, 442–43 (C.A.A.F. 2018).
As charged in this case, in order for the court members to find Appellant
guilty of sexual assault against MH, the Government was required to prove
beyond a reasonable doubt that, inter alia, Appellant caused the penetration
of MH’s vulva by Appellant’s penis without MH’s consent. See MCM, pt. IV, ¶
45.a.(b)(1)(B), (g)(3). “Consent” is defined as “a freely given agreement to the
conduct at issue by a competent person.” MCM, pt. IV, ¶ 45.a.(g)(8)(A). “A
sleeping, unconscious, or incompetent person cannot consent.” MCM, pt. IV, ¶
45.a.(g)(8)(B). “Lack of consent may be inferred based on the circumstances of
the offense. All of the surrounding circumstances are to be considered in deter-
mining whether a person gave consent . . . .” MCM, pt. IV, ¶ 45.a.(g)(8)(C).
3. Analysis
On appeal, Appellant contends “[t]he military judge erred in instructing
the panel as to incapacitation when bodily harm was the charged theory.” We
conclude Appellant cannot prevail on this issue.
To begin with, trial defense counsel affirmatively stated the Defense had
no objection to the pertinent portions of the military judge’s original instruc-
tions on the offense of sexual assault, nor to the Pease instruction the military
judge provided in response to the court member’s question. The limited addi-
tional instructions the Defense requested and the military judge denied would
not have altered the wording or effect of the Pease instruction Appellant now
challenges on appeal. Accordingly, in light of Davis, we find Appellant has
waived the alleged error. See 79 M.J. at 331–32.
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United States v. Campbell, No. ACM 38875 (reh)
However, this conclusion does not end our analysis. We recognize our au-
thority under Article 66(c), UCMJ, to pierce an appellant’s waiver in order to
correct a legal error. See Hardy, 77 M.J. at 442–43. Accordingly, we address
the substance of Appellant’s argument to explain why the asserted error is
without merit in any event.
Essentially, Appellant argues that sexual assault by causing bodily harm,
to wit, committing a sexual act without consent, and sexual assault by commit-
ting a sexual act on a person who is incapable of consenting are “mutually ex-
clusive” theories of liability under Article 120, UCMJ. See MCM, pt. IV,
¶ 45.a.(b)(1)(B), (3). Therefore, he reasons, the Government was required to
separately charge sexual assault due to incapacity in the alternative to sexual
assault by bodily harm. Because the Government did not do so, the military
judge’s instruction erroneously permitted the court members to find Appellant
guilty on the theory that MH was incapable of consenting. Cf. United States v.
Ober, 66 M.J. 393, 405 (C.A.A.F. 2008) (quoting Dunn v. United States, 442
U.S. 100, 106 (1979)) (“To uphold a conviction on a charge that was neither
alleged in an indictment nor presented to a jury at trial offends the most basic
notions of due process.”)
However, Appellant’s premise is flawed. He cites no decision from the
CAAF or any of the Courts of Criminal Appeals holding that the Government
cannot convict an accused on a bodily harm theory of sexual assault in violation
of Article 120, UCMJ, where the victim was not competent to consent. As
charged, the Government was required to prove MH did not consent to the
sexual act. The military judge provided the members the standard instruc-
tion—derived directly from the statute—that “consent” means a “freely given
agreement to the conduct at issue by a competent person.” Thus, the question
of whether MH was competent to consent was directly and appropriately before
the members. When a court member specifically asked the military judge to
clarify the meaning of “competent person,” she provided the definition set forth
in Pease that the CAAF has specifically indorsed. This was entirely appropri-
ate. See Ober, 66 M.J. at 405 (“The military judge has an independent duty to
determine and deliver appropriate instructions.”) (citation omitted). The ex-
tent to which MH was intoxicated or was asleep at the time Appellant commit-
ted the sexual act were part of the “surrounding circumstances” that were “to
be considered in determining whether [MH] gave consent,” in accordance with
Article 120, UCMJ. MCM, pt. IV, ¶ 45.a.(g)(8)(C); see also United States v. Har-
ris, No. ACM 39640, 2020 CCA LEXIS 299, at *26–27 (A.F. Ct. Crim. App. 2
Sep. 2020) (unpub. op.). Therefore, we find no error that would warrant pierc-
ing Appellant’s waiver.
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United States v. Campbell, No. ACM 38875 (reh)
E. Post-Trial Delay
Appellant’s court-martial concluded on 9 March 2019. However, the con-
vening authority did not take action until 23 July 2019. This 136-day period
exceeded by 16 days the 120-day threshold for a presumptively unreasonable
post-trial delay the CAAF established in Moreno, 63 M.J. at 142. Accordingly,
although Appellant has not raised the issue in his assignments of error, we
have considered the four factors the CAAF identified in Moreno to assess
whether Appellant’s due process right to timely post-trial and appellate review
has been violated: “(1) the length of the delay; (2) the reasons for the delay; (3)
the appellant’s assertion of the right to timely review and appeal; and (4) prej-
udice.” Id. at 135 (citing United States v. Jones, 61 M.J. 80, 83 (C.A.A.F. 2005);
Toohey v. United States, 60 M.J. 100, 102 (C.A.A.F. 2004) (per curiam)). “We
review de novo claims that an appellant has been denied the due process right
to a speedy post-trial review and appeal.” Id. (citations omitted).
In Moreno, the CAAF identified three types of cognizable prejudice for pur-
poses of an appellant’s due process right to timely post-trial review: (1) oppres-
sive incarceration; (2) anxiety and concern; and (3) impairment of the appel-
lant’s grounds for appeal or ability to present a defense at a rehearing. 63 M.J.
at 138–39 (citations omitted). In this case, the post-trial delay did not result in
oppressive incarceration because Appellant had already completed his term of
confinement before the sentence was adjudged. Moreover, there is no oppres-
sive incarceration where the appellant does not prevail on the substantive
grounds of his appeal, as Appellant has not prevailed in the instant appeal of
his rehearing. Id. at 139. Similarly, where Appellant’s substantive appeal fails,
his ability to present a defense at another rehearing is not impaired, and we
cannot perceive how any ground for appeal has been materially impaired. Id.
at 140. With regard to anxiety and concern, “the appropriate test for the mili-
tary justice system is to require an appellant to show particularized anxiety or
concern that is distinguishable from the normal anxiety experienced by pris-
oners awaiting an appellate decision.” Id. Appellant has made no claim or
showing of such particularized post-trial anxiety or concern in this case, dis-
tinct from that experienced by other appellants convicted of sexual assault, and
we perceive none.
Where there is no qualifying prejudice from the delay, there is no due pro-
cess violation unless the delay is so egregious as to “adversely affect the public’s
perception of the fairness and integrity of the military justice system.” United
States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006). Significantly, in this case
post-trial defense motions that were not finally denied by the military judge
until 3 July 2019 delayed authentication of the record until that date. There-
after, Appellant’s case was processed expeditiously. We conclude that the
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United States v. Campbell, No. ACM 38875 (reh)
breach of the Moreno standard in this case was not egregious under the cir-
cumstances, and we do not find a violation of Appellant’s due process rights.
Recognizing our authority under Article 66(c), UCMJ, 10 U.S.C. § 866(c),
we have also considered whether relief for excessive post-trial delay is appro-
priate in this case even in the absence of a due process violation. See United
States v. Tardif, 57 M.J. 219, 225 (C.A.A.F. 2002). After considering the factors
enumerated in United States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App.
2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016), we conclude no such relief is war-
ranted.
III. CONCLUSION
The findings of guilty with respect to Charge II and its Specification (adul-
tery) and Additional Charge II and its Specification (wrongfully proving alco-
hol to a minor) were previously affirmed. The findings and sentence adjudged
by the court-martial and approved by the convening authority are correct in
law and fact, and no error materially prejudicial to the substantial rights of
Appellant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).
Accordingly, the approved findings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
20