United States v. Driskill ( 2022 )


Menu:
  •              U NITED S TATES AIR F ORCE
    C OURT OF C RIMINAL APPEALS
    ________________________
    No. ACM 39889 (f rev)
    ________________________
    UNITED STATES
    Appellee
    v.
    Alexander L. DRISKILL
    Airman (E-2), U.S. Air Force, Appellant
    ________________________
    Appeal from the United States Air Force Trial Judiciary
    Upon Further Review
    Decided 23 August 2022
    ________________________
    Military Judge: Willie J. Babor; Dayle P. Percle (remand).
    Sentence: Sentence adjudged on 4 November 2019 by GCM convened at
    Ramstein Air Base, Germany (20 May 2019), Aviano Air Base, Italy (20–
    27 June 2019), and Buckley Air Force Base, Colorado (28 October–4 No-
    vember 2019). Sentence entered by military judge on 2 March 2020, and
    reentered on 20 January 2022: Dishonorable discharge, confinement for
    40 years and 9 months, forfeiture of all pay and allowances, and reduc-
    tion to E-1.
    For Appellant: Major Kasey W. Hawkins, USAF; Major Alexander A.
    Navarro, USAF.
    For Appellee: Lieutenant Colonel Amanda L.K. Linares, USAF; Lieuten-
    ant Colonel Matthew J. Neil, USAF; Major Allison R. Barbo, USAF; Ma-
    jor Alex B. Coberly, USAF; Major Peter F. Kellett, USAF; Mary Ellen
    Payne, Esquire.
    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 dissenting opin-
    ion.
    United States v. Driskill, No. ACM 39889 (f rev)
    ________________________
    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 30.4.
    ________________________
    ANNEXSTAD, Judge:
    At a general court-martial, in accordance with his pleas and pursuant to a
    pretrial agreement (PTA), a military judge found Appellant guilty of one spec-
    ification of wrongful possession of obscene cartoons in violation of Article 134,
    Uniform Code of Military Justice (UCMJ), 
    10 U.S.C. § 934.1
     Contrary to his
    pleas, a panel of officer members found Appellant guilty of one specification of
    rape of a child and one specification of sexual abuse of a child, both in violation
    of Article 120b, UCMJ, 10 U.S.C. § 920b. The members sentenced Appellant to
    a dishonorable discharge, confinement for 40 years and 9 months, forfeiture of
    all pay and allowances, and reduction to the grade of E-1.2,3 The PTA did not
    place any limitations on punishment.4
    Appellant’s case is before this court a second time. Although not raised by
    Appellant, we determined the convening authority had erred by not taking ac-
    tion on Appellant’s sentence as required by Executive Order 13,825, § 6(b), 
    83 Fed. Reg. 9889
    , 9890 (
    8 Mar. 2018
    ), and Article 60, UCMJ, 
    10 U.S.C. § 860
    ,
    Manual for Courts-Martial, United States (2016 ed.) (2016 MCM), and we re-
    manded his case to the Chief Trial Judge, Air Force Trial Judiciary, for correc-
    tive action. See United States v. Driskill, No. ACM 39889, 
    2021 CCA LEXIS 1
     The specifications covered the time period from 11 October 2016 to 27 March 2018.
    References to the punitive articles of the UCMJ are to the Manual for Courts-Martial,
    United States (2016 ed.). Unless otherwise noted all other references to the UCMJ and
    the Rules for Courts-Martial are to the Manual for Courts-Martial, United States (2019
    ed.). Further, the Military Justice Act of 2016, National Defense Authorization Act for
    Fiscal Year 2017, 
    Pub. L. No. 114-328, §§
     5001–5542 (23 Dec. 2016), as fully imple-
    mented by Exec. Order 13,825, 
    83 Fed. Reg. 9889
     (
    8 Mar. 2018
    ), applied to Appellant’s
    court-martial and post-trial processing.
    2 The military judge merged the specifications of rape of a child and sexual abuse of a
    child for sentencing.
    3 After trial, the convening authority suspended the adjudged forfeitures of all pay and
    allowances for six months, release from confinement, or expiration of term of service,
    whichever was sooner, with suspension commencing on 18 November 2019.
    4 Appellant was credited with 278 days in pretrial confinement.
    2
    United States v. Driskill, No. ACM 39889 (f rev)
    672, at *11–12 (A.F. Ct. Crim. App. 14 Dec. 2021) (unpub. op.).5 The convening
    authority subsequently approved Appellant’s sentence, resulting in a new en-
    try of judgment. With this error corrected, we now turn to Appellant’s remain-
    ing nine issues, along with three additional issues Appellant raised subsequent
    to our first opinion on this case.
    Appellant initially raised nine issues which we have reworded: (1) whether
    the evidence was legally and factually sufficient to support Appellant’s convic-
    tions for rape and sexual abuse of a child; (2) whether the military judge abused
    his discretion by allowing a Government expert to testify about future impact
    on the named victim; (3) whether the military judge erred when he denied Ap-
    pellant’s request to sever the charge for wrongful possession of obscene car-
    toons from the charge and specifications for rape and sexual abuse of a child;
    (4) whether Appellant’s conviction for wrongful possession of obscene cartoons
    violated the prohibition against double jeopardy found in the Fifth Amendment
    to the United States Constitution6 and Article 44, UCMJ, 
    10 U.S.C. § 844
    ; (5)
    whether the military judge erred by denying Appellant’s motion for appropri-
    ate relief due to unequal access to the named victim; (6) whether the military
    judge erred by failing to compel an expert consultant for Appellant; (7) whether
    Appellant’s guilty plea to wrongful possession of obscene cartoons was provi-
    dent;7 (8) whether the confinement portion of the sentence was inappropriately
    severe; and (9) whether Appellant’s convictions for rape and sexual abuse of a
    child were factually and legally insufficient due to errors in the child forensic
    interview.
    After Appellant’s record was returned to this court, Appellant raised three
    additional issues which we have reworded: (10) whether his convictions for
    rape and sexual abuse of a child were factually and legally insufficient due to
    bias in the investigation; (11) whether trial counsel committed prosecutorial
    misconduct during his findings argument; and (12) whether the Government
    5 Our previous decision also addressed one additional issue not raised by Appellant in
    his initial appeal: whether Appellant was entitled to relief for a facially unreasonable
    post-trial delay. We found Appellant did not suffer prejudice and that no relief was
    warranted. United States v. Driskill, No. ACM 39889, 
    2021 CCA LEXIS 672
    , at *11
    (A.F. Ct. Crim. App. 14 Dec. 2021) (unpub. op.).
    6 U.S. CONST. amend. V.
    7 Although Appellant invites us to analyze this issue as one of legal and factual suffi-
    ciency, we decline to do so. Appellant pleaded guilty to this offense during his court-
    martial. In a guilty plea context, the issue is not legal or factual sufficiency, but
    whether the plea is provident. United States v. Faircloth, 
    45 M.J. 172
    , 174 (C.A.A.F.
    1996).
    3
    United States v. Driskill, No. ACM 39889 (f rev)
    can prove beyond a reasonable doubt that the military judge’s failure to in-
    struct the panel that a guilty verdict must be unanimous was harmless.8
    With respect to issues (3), (5), (6), and (12), we have carefully considered
    Appellant’s contentions and find they do not require further discussion or war-
    rant relief. See United States v. Matias, 
    25 M.J. 356
    , 361 (C.M.A. 1987). We
    consider issues (1), (9), and (10) together because they all concern Appellant’s
    contention that his convictions for rape and sexual abuse of a child were legally
    and factual insufficient.
    Finding no error that materially prejudiced a substantial right of Appel-
    lant, and following this court’s Article 66(d), UCMJ, 10 U.S.C § 866(d), man-
    date to affirm only so much of the findings and sentence as we find, on the
    basis of the entire record, should be approved, we affirm the findings. Further,
    we affirm the sentence, as reassessed by this court, as a result of our ruling on
    sentence appropriateness.
    I. BACKGROUND
    Appellant joined the Air Force in May 2016. At the time of his trial, he was
    26 years old. In October 2016, after finishing technical school, Appellant mar-
    ried HD. The couple had a daughter, WD, who had been born in December
    2014. After the wedding, Appellant moved to Aviano Air Base, Italy, and was
    assigned to the 31st Operations Support Squadron. Approximately six months
    later, in March 2017, HD and WD joined him in Italy.
    According to HD’s trial testimony, about a year later, in February or March
    2018, she and Appellant spent a “really good weekend” together visiting nearby
    towns in Italy. At the conclusion of the weekend, Appellant went to the couple’s
    bedroom to “tuck [HD] in and say good night.” HD testified that for the past
    couple of months Appellant had been staying up late using his computer on the
    couch so it had become rare for him to go to bed with her. HD explained that
    after Appellant hugged her goodnight he said he had “been hiding something
    from [her] for a while” and that he “couldn’t stop looking at little girls.” HD
    was unsure what he meant and asked him to show her what he was talking
    about. Appellant then walked into the living room with her, retrieved his lap-
    top, and showed her images of child pornography. During the conversation that
    followed, Appellant admitted to HD that he found the images sexually arous-
    ing. In response, HD asked Appellant “if he would ever touch a child, a little
    girl.” Appellant replied “I don’t know, because I can’t even stop looking” at the
    images. At this point, HD told Appellant that she would not report or divorce
    8 Issues (6), (7), (8), (9), (10) and (11) were personally raised by Appellant pursuant to
    United States v. Grostefon, 
    12 M.J. 431
     (C.M.A. 1982).
    4
    United States v. Driskill, No. ACM 39889 (f rev)
    him if he immediately got rid of the images and promised her that he would
    never look at that type of content again. Appellant then took the universal se-
    rial bus (USB) drives that contained the child pornography and destroyed
    them. HD testified she believed Appellant destroyed all the images of child
    pornography that he possessed.
    Later in March 2018, the Air Force Office of Special Investigations (AFOSI)
    launched an investigation of Appellant. The investigation began when WD,
    who was almost 3 years old at the time, was diagnosed with herpes.9 Appellant
    was interviewed by AFOSI on 27 March 2018. Consistent with the purpose of
    the investigation and with Appellant’s consent, AFOSI agents along with local
    Italian police officers searched Appellant’s home and seized all of his electronic
    devices, including cell phones, computing devices, and electronic storage de-
    vices. These items were then sent to the Defense Cyber Crime Center Cyber
    Forensics Laboratory (DC3/CFL) for analysis. Ms. MH, a computer forensic ex-
    aminer at DC3/CFL, discovered obscene cartoons on Appellant’s devices. Dur-
    ing the Care10 inquiry into the providence of his pleas, Appellant admitted that
    the images depicted “drawings of characters that are smaller and childlike in
    nature engaging in sex acts.” One image Appellant possessed depicted a young
    girl on a tricycle, with a penis-shaped dildo in the place of the tricycle seat.
    Another image depicted a prepubescent girl wearing pigtails. The girl had an
    adult’s penis in her mouth with pubic hair near her face. Behind her, another
    larger male was holding her leg up, exposing her genitalia. Appellant admitted
    he did not know how many images he possessed, but agreed it was “well in
    excess of 100.”
    In June 2018, while the AFOSI investigation was still ongoing, HD and WD
    moved to Texas to live with HD’s grandparents. During the investigation, HD
    did not want to talk to investigators or be involved with the investigation. She
    was satisfied that her husband had destroyed his USB drives containing the
    indecent images. HD testified that she wanted her “family together, and just
    have us be happy and not have to worry about it.” HD elaborated that although
    she had physically moved, she still loved Appellant, was trying to work through
    9 In October 2017, WD was diagnosed with herpes, known to be a sexually transmitted
    disease. WD’s diagnosis resulted in a referral to Family Advocacy, which eventually
    led to an investigation by the AFOSI. The court did not factor the issue of WD’s herpes
    diagnosis into our decision. We articulate this information to establish appropriate
    timelines. No evidence was admitted on this matter and it did not factor into our legal
    and factual sufficiency determination of Appellant’s convictions. We also note Appel-
    lant’s crime of rape against a child under the age of 12 was charged to have occurred
    between on or about 11 October 2016 (approximately when Appellant arrived in Italy)
    and on or about 27 March 2018 (when AFOSI interviewed Appellant).
    10 United States v. Care, 
    40 C.M.R. 247
     (C.M.A. 1969).
    5
    United States v. Driskill, No. ACM 39889 (f rev)
    things with him, and spoke with him as frequently as she could. She also per-
    mitted WD to talk with him as much as she could. In December 2018, Appellant
    visited HD and WD for the holidays. HD recalled that they were “actually
    happy, like, things were great. We had a blast together. I thought everything
    was good.” She stated she was sad and crying when Appellant returned to It-
    aly. HD said she still trusted Appellant with their young daughter at this time,
    despite having seen the child pornography on his computer. However, unbe-
    knownst to HD at that time, the investigation revealed that Appellant had
    multiple other digital devices containing obscene images of children engaged
    in sexually explicit conduct.
    HD testified things changed on 28 January 2019, shortly after WD’s fourth
    birthday. WD made an unprompted utterance of what Appellant did to her
    when they were living in Italy. As HD described, HD and WD were residing
    with HD’s grandparents. The allegation came to light while she and WD were
    going through their normal bedtime routine. They were playing a game on her
    phone called Radial, which created tapestry-type signs. WD started to giggle
    at one point and said that one of the shapes looked “like Daddy’s pee-pee.”
    When trial counsel asked HD what happened next, HD responded:
    I asked her what - - how did she know what Daddy’s pee-pee
    looks like. And she said “Daddy put his pee-pee in my mouth the
    last time we were in Italy.” And then I asked her what - - “Well
    what do you mean?” And she said, “Well, the last time we were
    in Italy, Daddy put his pee-pee in my mouth, and I spit into a
    towel.” And I asked her where I was and she said I was in the
    shower. And [I asked her] where it happened, she said “In yours
    and Daddy’s room.”
    HD further testified that she was in shock and was having a difficult time with
    what she heard. HD then took WD to her grandparent’s bedroom where WD
    repeated to her great-grandparents what she had told HD. JC, HD’s grandfa-
    ther, testified that at first, he only heard a portion of what WD said, including,
    “Daddy pee-pee in my mouth, and something about balls.” JC then asked WD
    to repeat herself, and WD responded “when we were [in Italy], [HD was] taking
    a shower, Daddy put his pee-pee in my mouth. He pushed his balls against my
    face, and I threw up on a towel.” HD testified that WD did not seem confused
    about whose penis was in her mouth, or when, or where it happened. According
    to HD, the only thing WD was confused about “was whether she did something
    wrong or not.” HD stated she did not report Appellant that night because she
    “wanted to sleep on it” because “[t]here was a lot to consider.” HD reported the
    allegation the next day.
    6
    United States v. Driskill, No. ACM 39889 (f rev)
    After HD reported the incident, WD met with BL, a forensic interviewer
    with the Children’s Advocacy Center located in the county where HD’s grand-
    parents resided. WD explained to BL what Appellant did to her in Italy during
    a video-recorded interview. BL stated that WD was able to discern what con-
    stituted a truth and what constituted a lie when prompted with hypothetical
    scenarios. BL testified that WD was also able to discern the differences in the
    questions that she asked her, which is evidenced by the fact that WD denied
    that anyone ever touched her chest. BL further testified that when she asked
    WD if anyone made her touch their private parts, WD did not respond at first
    and tried to change the subject, but went on to state that she did not want to
    talk about the bad stuff. BL recalled WD eventually told her that “daddy put
    his pee-pee in my mouth, and I threw up in a towel.” WD described her “throw
    up” as white in color.
    Significantly, WD also physically demonstrated what happened to her dur-
    ing the interview and on her own accord. WD used her hands and body to
    demonstrate Appellant’s actions. When BL asked WD, “[W]here were daddy’s
    hands when he put his pee-pee in your mouth?” WD replied by saying, “[H]e
    didn’t put his own hands on it,” then she indicated towards her own groin area
    and put her hand under her own chin, demonstrating that Appellant had lifted
    her chin to put his penis in her mouth. The entire recorded interview was
    played for the members during trial.11
    Under oath at trial, WD also detailed Appellant’s actions. Specifically, trial
    counsel asked WD, “Tell me what daddy did with his pee-pee.” WD testified,
    “[Appellant] put it in my mouth . . . [a]nd then I - - and then I throwed up it,
    the white stuff in a white towel.” When asked what “daddy’s pee-pee” looked
    like, WD demonstrated with her hands, then responded, “[H]e wanted me to
    put it in my mouth.” She described the stuff that came out of “daddy’s pee-pee”
    as white and tasting like “throw up” and stated it went in her mouth and she
    spit it in a towel. She continued by stating the white stuff that went in her
    mouth did not taste good and that “[i]t came out of this hole,” while also demon-
    strating her response. She also described this event as occurring “next to
    daddy’s and my mom’s bed.” Following trial defense counsel’s cross-examina-
    tion of WD, and pursuant to a member’s question, the military judge asked,
    “[WD], one more question. Did you ever see Daddy do anything to Mommy with
    his pee-pee?” To which WD responded, “Nope.”
    At trial the Defense called Special Agent (SA) IP, the case agent in Appel-
    lant’s case. Trial defense counsel, inter alia, explored the possibility that HD
    had coached WD to say that she was sexually assaulted. SA IP testified the
    investigation did not reveal that HD provided WD with information to support
    11 The recorded interview was approximately 20 minutes long.
    7
    United States v. Driskill, No. ACM 39889 (f rev)
    her allegation. SA IP also testified that WD “didn’t look like she was coached”
    and “wasn’t behaving like she had been coached.” SA IP also stated on cross-
    examination that the AFOSI investigation did not reveal WD had been exposed
    to any pornography or obscene cartoons. She also confirmed that the investi-
    gation did not reveal WD had been exposed to the secretion of semen from any
    other source. Finally, she confirmed that HD was unwilling to participate in
    the investigation and there was no reason to believe that anyone told WD what
    to say during the investigation or Appellant’s court-martial.
    The Defense also called Dr. JY, who was recognized as an expert in the field
    of forensic psychology. Dr. JY testified concerning possible memory contami-
    nation, and the typical protocol for a child forensic interview—such as devel-
    oping rapport, asking open-ended questions, and assessing cognitive ability.
    Dr. JY concluded, after reviewing DL’s interview of WD, that WD was difficult
    to interview. He stated that DL had taken some “shortcuts” with rapport build-
    ing due to WD’s age which made accuracy of WD’s disclosure a “toss-up.” On
    cross-examination, Dr. JY agreed all the questions that DL posed to WD were
    open-ended questions that did not suggest an answer or conclusion. He further
    agreed that WD did not hesitate to challenge false information and that she
    made “on-the-spot corrections to information given to her” by DL. Dr. JY testi-
    fied WD also gave an unprompted physical demonstration during the interview
    of how Appellant moved his penis in her mouth and further agreed that the
    question did not require WD to demonstrate a response. Finally, Dr. JY agreed
    that there was no evidence that WD was confused about who sexually as-
    saulted her, what was done to her, where the assault occurred, or how Appel-
    lant committed the assault.
    The panel of officer members found Appellant guilty of one specification
    each of rape and sexual abuse of a child.
    II. DISCUSSION
    A. Legal and Factual Sufficiency
    Appellant contends his convictions of rape and sexual abuse of a child are
    both legally and factually insufficient. Specifically, Appellant takes issue with
    WD’s testimony, the manner in which the pretrial interviews were conducted,
    and whether WD was coached or influenced by adults. He also generally claims
    that the investigators were biased. Appellant asks us to set aside the findings
    and sentence. We disagree with Appellant’s contentions and find no relief is
    warranted.
    1. Law
    Issues of legal and factual sufficiency are reviewed de novo. United States
    v. Washington, 
    57 M.J. 394
    , 399 (C.A.A.F. 2002). “Our assessment of legal and
    8
    United States v. Driskill, No. ACM 39889 (f rev)
    factual sufficiency is limited to evidence produced at trial.” United States v.
    Rodela, 
    82 M.J. 521
    , 525 (A.F. Ct. Crim. App. 2021) (citing United States v.
    Dykes, 
    38 M.J. 270
    , 272 (C.M.A. 1993)), rev. denied, No. 22-0111, 
    2022 CAAF LEXIS 278
     (C.A.A.F. 12 Apr. 2022).
    “The test for legal sufficiency is whether, after viewing the evidence in the
    light most favorable to the prosecution, any rational trier of fact could have
    found the essential elements of the crime beyond a reasonable doubt.” United
    States v. Robinson, 
    77 M.J. 294
    , 297–98 (C.A.A.F. 2018) (quoting United States
    v. Rosario, 
    76 M.J. 114
    , 117 (C.A.A.F. 2017)). “The term reasonable doubt, how-
    ever, does not mean that the evidence must be free from conflict.” United States
    v. Wheeler, 
    76 M.J. 564
    , 568 (A.F. Ct. Crim. App. 2017) (citing United States v.
    Lips, 
    22 M.J. 679
    , 684 (A.F.C.M.R. 1986)), aff’d, 
    77 M.J. 289
     (C.A.A.F. 2018).
    “[I]n resolving questions of legal sufficiency, we are bound to draw every rea-
    sonable inference from the evidence of record in favor of the prosecution.”
    United States v. Barner, 
    56 M.J. 131
    , 134 (C.A.A.F. 2001) (citations omitted).
    As a result, “[t]he standard for legal sufficiency involves a very low threshold
    to sustain a conviction.” United States v. King, 
    78 M.J. 218
    , 221 (C.A.A.F. 2019)
    (alteration in original) (citation omitted). The test for legal sufficiency “gives
    full play to the responsibility of the trier of fact fairly to resolve conflicts in the
    testimony, to weigh the evidence, and to draw reasonable inferences from basic
    facts to ultimate facts.” Unites States v. Oliver, 
    70 M.J. 64
    , 68 (C.A.A.F. 2011)
    (quoting Jackson v. Virginia, 
    443 U.S. 307
    , 319 (1973)).
    “The test for factual sufficiency is ‘whether, after weighing the evidence in
    the record of trial and making allowances for not having personally observed
    the witnesses,’ [this] court is ‘convinced of the [appellant]’s guilt beyond a rea-
    sonable doubt.’” United States v. Reed, 
    54 M.J. 37
    , 41 (C.A.A.F. 2000) (quoting
    United States v. Turner, 
    25 M.J. 324
    , 325 (C.M.A. 1987)). “In conducting this
    unique appellate role, we take ‘a fresh, impartial look at the evidence,’ applying
    ‘neither a presumption of innocence nor a presumption of guilt’ to ‘make [our]
    own independent determination as to whether the evidence constitutes proof
    of each required element beyond a reasonable doubt.’” Wheeler, 
    76 M.J. at 568
    (alteration in original) (quoting Washington, 57 M.J. at 399). The term “rea-
    sonable doubt” does not mean evidence free from conflict. See Lips, 
    22 M.J. at 684
    . This court’s review of the factual sufficiency of evidence for findings is
    limited to the evidence admitted at trial. See Article 66(d), UCMJ; United
    States v. Beatty, 
    64 M.J. 456
    , 458 (C.A.A.F. 2007) (citations omitted).
    Appellant was convicted of rape of a child in violation of Article 120b(a),
    UCMJ, 10 U.S.C. § 920b(a), which required the Government to prove two ele-
    ments beyond a reasonable doubt: (1) Appellant committed a sexual act upon
    WD by penetrating her mouth with his penis; and (2) that WD had not attained
    9
    United States v. Driskill, No. ACM 39889 (f rev)
    the age of 12 years at the time of the sexual act. See 2016 MCM, pt. IV,
    ¶ 45b.b.(1)(a).
    Appellant was also convicted of sexual abuse of a child in violation of Article
    120b(c), UCMJ, 10 U.S.C. § 920b(c), which required the Government to prove
    the following elements beyond a reasonable doubt: (1) Appellant committed a
    sexual contact upon WD by causing her to touch his genitalia; and (2) Appel-
    lant did so with the intent to gratify his sexual desire. See 2016 MCM, pt. IV,
    ¶ 45b.b.(4)(a). As charged in this case, the Government also had to prove that
    WD had not attained the age of 12 years.
    2. Analysis
    a. The Government’s Case
    The Government introduced convincing evidence of Appellant’s guilt. Most
    significantly, the evidence demonstrated that WD consistently described and
    demonstrated, from her initial unprompted utterance to her in-court testi-
    mony, how Appellant committed the act of rape of a child by penetrating her
    mouth with his penis, and committed the act of sexual abuse of a child by caus-
    ing her to touch his genitalia. She clearly stated these offenses took place in
    her parents’ bedroom while the family was living in Italy. The evidence also
    demonstrated that the offenses occurred between October 2016 and March
    2018, when WD was approximately 3 years old.
    Specifically, during direct examination, WD clearly and in detail described
    when, where, and how Appellant performed a sexual act on her. The Govern-
    ment powerfully reinforced her testimony with the testimony of HD, who de-
    scribed in detail WD’s spontaneous outcry when they were playing with a
    phone application before bed. HD clearly described that WD told her “the last
    time we were in Italy, Daddy put his pee-pee in my mouth, and I spit in a
    towel.” WD’s description of the offenses was also reinforced by testimony from
    WD’s great-grandfather, JC, and testimony from the forensic interviewer, BL.
    JC testified WD told him “when we were [in Italy] . . . Daddy put his pee-pee
    in my mouth. He pushed his balls against my face, and I threw up on a towel.”
    BL testified WD told her that “Daddy put his pee-pee in my mouth, and I threw
    up in a towel.” WD also described to BL that the color of her “throw up” was
    white and it tasted bad.
    In addition, HD provided testimony concerning Appellant’s possession of
    child pornography and that Appellant had stated to her that he found the im-
    ages arousing, refused to confirm that he would not touch a child or a little girl,
    and admitted he “couldn’t stop looking at little girls.” HD also described how
    she refused to be involved with the AFOSI investigation concerning the child
    pornography, and how WD’s unprompted utterance came at a time when HD
    was excited about keeping her family together and moving on.
    10
    United States v. Driskill, No. ACM 39889 (f rev)
    b. Appellant’s Claims of Reasonable Doubt
    Appellant raises a number of arguments as to why we should not be con-
    vinced of his guilt beyond a reasonable doubt. We address the three most sig-
    nificant of them below.
    Appellant first contends there were inconsistencies in WD’s testimony. Spe-
    cifically, Appellant argues that WD provided different descriptions of the bed-
    room where she was sexually assaulted. Appellant points us to WD’s statement
    during the forensic interview, where she described pictures of “flower, pink
    butterflies” on the wall. This description was contradicted by other evidence.
    Appellant also asks that we compare the above statement with WD’s testimony
    during cross-examination, where she generally described the room as “[j]ust
    normal. Just like plain . . . It was just the same. Just plain.” Appellant argues
    that these discrepancies alone are enough to support reasonable doubt. We are
    unpersuaded by Appellant’s argument. Even if we were to assume that there
    were inconsistencies in her description of the bedroom where the rape and sex-
    ual abuse occurred, “[i]nconsistencies . . . are not uncommon when child abuse
    victims testify.” United States v. Cano, 
    61 M.J. 74
    , 77 (C.A.A.F. 2005). We also
    note that “reasonable doubt” does not mean that the evidence must be free from
    conflict. See Lips, 
    22 M.J. at 684
    . Here, any inability to accurately describe
    her parents’ bedroom where the rape and sexual abuse occurred does little to
    contradict WD’s vivid description and consistent recollection of where and how
    the acts occurred, and in this court’s opinion does not, in and of itself, equate
    to reasonable doubt.
    Appellant next contends WD’s forensic interview was tainted when the in-
    terviewer “coaxed information” from WD to support the charged offenses. How-
    ever, this is contrary to the record that demonstrates BL asked open-ended
    questions allowing WD to explain in her own words what Appellant did to her
    during the recorded forensic interview. BL testified during trial and Appel-
    lant’s trial defense counsel extensively cross-examined her on her interview
    techniques. Trial defense counsel specifically questioned BL regarding her use
    of leading questions, to which BL testified that she was careful in her ques-
    tioning as to not suggest any information or preferred responses. The strongest
    evidence against Appellant’s argument comes from the Defense’s own expert
    witness, Dr. JY. Dr. JY agreed during his testimony that all of the questions
    asked of WD during the forensic interview were open-ended questions. Addi-
    tionally, he agreed there was no evidence that WD was confused regarding the
    details of the sexual assault. We are not persuaded that this evidence leads to
    reasonable doubt.
    Appellant also contends WD was coached and influenced by exposure to
    age-inappropriate information prior to trial. Appellant alleges that WD could
    have made up the sexual assault because she could have seen Appellant having
    11
    United States v. Driskill, No. ACM 39889 (f rev)
    sex with HD. This argument is not supported by the record. First, WD clearly
    stated on the record that she had not witnessed Appellant doing anything to
    HD with his “pee-pee.” Additionally, in response to questions posed by trial
    defense counsel, SA IP testified that she had no reason to believe that WD had
    been exposed to any child pornography or obscene cartoons, and that “[WD]
    didn’t look like she was coached.” On this point, we note that there is also no
    evidence in the record that HD had a motive to coach her daughter. Rather,
    the evidence adduced at trial indicated that HD stayed with her husband even
    after he disclosed his habit of viewing child pornography. HD further testified
    she loved Appellant and was looking forward to putting the investigation be-
    hind them and being a family. Most compelling is HD’s reluctance to partici-
    pate with the law enforcement investigation. In sum, there was no evidence
    that WD was coached in preparation for her forensic interview.
    Finally, Appellant contends his convictions were the product of a biased
    investigation. Specifically, Appellant contends that both HD and an investiga-
    tor from Child Protective Services, ME, were biased against him. Having al-
    ready discussed HD’s potential bias or lack thereof above, we focus our atten-
    tion on ME’s involvement. ME interviewed WD shortly after WD was diag-
    nosed with herpes. Generally, ME was investigating the possibility that WD
    had been sexually abused. Appellant now argues that ME was biased because
    she referenced WD’s herpes infection in her investigative report. We find the
    discussion regarding herpes irrelevant, as there was no evidence of herpes put
    into evidence, nor was it even remotely discussed in front of the members at
    trial. Interestingly, Appellant called ME as a Defense witness at trial. ME tes-
    tified that when she interviewed WD, prior to WD’s outcry, that WD denied
    any sexual abuse. This information is very favorable to Appellant. If ME was
    harboring any bias towards Appellant, no evidence of such was brought to light
    during the trial. We find Appellant’s contention that the investigation was bi-
    ased is not supported by the record.
    c. Conclusion
    Viewing the evidence in the light most favorable to the Prosecution, a ra-
    tional trier of fact could have found the essential elements of rape and sexual
    abuse of a child beyond a reasonable doubt. See Robinson, 77 M.J. at 297−98.
    Furthermore, after weighing the evidence in the record of trial and making
    allowances for not having personally observed the witnesses, we are ourselves
    convinced of Appellant’s guilt beyond a reasonable doubt. See Reed, 54 M.J. at
    41 (quoting Turner, 
    25 M.J. at 325
    ).
    B. Expert Testimony on Future Impact to Victim
    Appellant argues the military judge erred in permitting expert testimony
    during presentencing proceedings concerning the future impact the offenses
    12
    United States v. Driskill, No. ACM 39889 (f rev)
    would have on WD. Specifically, Appellant contends that the testimony did not
    qualify as evidence in aggravation under Rule for Courts-Martial (R.C.M.)
    1001(b)(4). Additionally, Appellant takes issue with the military judge’s find-
    ing that the probative value of this evidence was not substantially outweighed
    by the risk of unfair prejudice. Appellant asks us to set aside the sentence. We
    find no error and no relief warranted.
    1. Additional Background
    During an Article 39(a), UCMJ, 
    10 U.S.C. § 839
    (a), session outside the pres-
    ence of members, trial counsel informed the court that the Government would
    call Dr. EB to adduce expert testimony during presentencing that would
    demonstrate WD was at risk for significant psychological trauma due to Ap-
    pellant’s offenses. Trial defense counsel objected, arguing that Dr. EB’s testi-
    mony would rely on research with subjects who were not similarly situated
    with WD. Specifically, trial defense counsel noted that the research subjects’
    “median age at the onset of abuse was between seven and eight years,” more
    than double WD’s age at the time of the assault, and that the subjects suffered
    a median duration of two years of abuse, which was longer than the single
    incident encompassing the charged offenses. Trial defense counsel also argued
    that 70 percent of the abuse in those cases involved vaginal or anal penetra-
    tion, whereas WD’s case involved oral penetration.
    During the Article 39(a), UCMJ, session, the military judge questioned Dr.
    EB in order to resolve the objections. Dr. EB generally stated her testimony
    would be related to Appellant’s convictions based on the research trial defense
    counsel referenced. Dr. EB testified three factors cited by the research were
    present in WD’s case and indicated WD was at a greater risk for future psy-
    chological harm: (1) the abuser was a father or father figure; (2) oral, anal, or
    vaginal penetration occurred; and (3) WD was under 8 years old at the time of
    abuse. Dr. EB confirmed for the military judge that she concluded the three
    factors applied to Appellant’s case based on evidence adduced during the court-
    martial, which she observed. She did not quantify how much of a greater risk
    she believed WD faced. On cross-examination, trial defense counsel pointed out
    how the victims in the underlying research studies differed from WD. Dr. EB
    responded that the articles used to inform her opinions in this case discussed
    20 to 30 different studies, and that she would only “rely on parts of the articles
    that are relevant to [Appellant’s] case.”
    After the questioning of Dr. EB, the military judge ruled that Dr. EB would
    be allowed to testify about “any aggravating circumstances . . . directly relating
    to or resulting from the offenses for which [Appellant] has been found guilty.
    This rule extends to the potential future impacts on this victim.” He further
    13
    United States v. Driskill, No. ACM 39889 (f rev)
    found that trial defense counsel had shown the ability “to extract equally pro-
    bative testimony from [Dr. EB].” The military judge also conducted a Mil. R.
    Evid. 403 balancing test and found
    the potential testimony of [Dr. EB] to substantially outweigh the
    risk of prejudice to the accused, undue delay, and confusing the
    issues for the members. Especially, in light of [trial] defense
    counsel’s abilities and knowledge in this field, as well as, the
    [D]efense’s own access to a forensic psychologist.
    The military judge later restated his ruling on the record:
    With regards to Dr. [EB]’s proposed testimony at the time in my
    last decision: trial counsel may present evidence to any aggra-
    vating circumstances directly relating to or resulting from the
    offenses of which [Appellant] has been found guilty. “Directly re-
    lating or resulting from” not only refers to past events, but po-
    tential future impact as a result of the crime on the victim.
    The question here is whether [Appellant]’s misconduct could
    lead to future impact on [WD], as described in Dr. [EB]’s testi-
    mony. And this court finds it can. This court finds a direct link
    between [Appellant]’s offenses and [WD], specifically, in Dr.
    [EB]’s testimony regarding potential future impact of those acts
    on [WD]. This evidence is clearly relevant, directly related to,
    and resulted from [Appellant]’s acts.
    Furthermore, the probative value is not substantially out-
    weighed by undue prejudice. The relevance of Dr. [EB]’s testi-
    mony, specifically, that of the impact of the father being the per-
    petrator of sexual abuse, the penetrative nature of the offense,
    and the young age [of the victim], that is, under the age of eight,
    is significant, given Dr. [EB]’s knowledge, skills and experience,
    and the facts and circumstances before this court-martial.
    When presentencing resumed, the Government called Dr. EB as a witness.
    During her testimony Dr. EB was recognized as an expert in the fields of clin-
    ical and forensic psychology. At this point, the military judge instructed the
    members that they were “not required to accept the testimony of an expert
    witness or give it more weight than the testimony of an ordinary witness.” Dr.
    EB then gave examples of short-term effects that a child sexual abuse victim
    may experience such as “depression symptoms, anxiety symptoms, PTSD
    [post-traumatic stress disorder], low self-esteem, self-harm . . . substance
    abuse, sexual promiscuity, academic difficulties, as well as behavior and con-
    duct problems.” She also testified about family problems that may arise from
    child sexual abuse and the specific effects upon preschool-aged victims.
    14
    United States v. Driskill, No. ACM 39889 (f rev)
    Dr. EB further testified child sexual abuse victims were at risk of suffering
    various long-term effects. These included depression, PTSD, suicide attempts,
    marital problems stemming from less marital and sexual satisfaction, higher
    rates of re-victimization, substance abuse, and medical disorders like cardio-
    pulmonary disorders, and gastro-intestinal disorders. Dr. EB explained the
    risk of negative effects is greater where the father is the abuser, the abuse
    involves penetration, or when the victim is under 8 years old. She also noted
    that the duration of abuse can increase the likelihood of the negative outcomes,
    however, she also acknowledged that there was no evidence that there was a
    “longer duration of abuse” in WD’s case. She concluded WD was at “higher risk”
    of exhibiting long-term effects later in her life as a result of the assault.
    On cross-examination, trial defense counsel adduced testimony that not
    every child would be affected in the same way and that there were several fac-
    tors associated with “greater negative outcomes” that were not present in WD’s
    case. Dr. EB admitted that she had not personally evaluated WD and could not
    say that WD would, in fact, experience any of the aforementioned negative out-
    comes.
    2. Law
    We review a military judge’s decision to admit or exclude evidence, includ-
    ing expert testimony, for an abuse of discretion. See United States v. Hutchins,
    
    78 M.J. 437
    , 444 (C.A.A.F. 2019); United States v. Billings, 
    61 M.J. 163
    , 166
    (C.A.A.F. 2005).
    Military judges abuse their discretion when their “factual findings are
    clearly erroneous, view of law is erroneous, or decision is outside the range of
    reasonable choices.” Hutchins, 78 M.J. at 444 (citations omitted). To prevail
    under this claim of error, an appellant must show “more than a mere difference
    of opinion,” he must show the military judge’s decision was “arbitrary, fanciful,
    clearly unreasonable, or clearly erroneous.” United States v. McElhaney, 
    54 M.J. 120
    , 130 (C.A.A.F. 2000) (citation omitted).
    Mil. R. Evid. 702 prescribes:
    A witness who is qualified as an expert by knowledge, skill, ex-
    perience, training, or education may testify in the form of an
    opinion or otherwise if:
    (a) the expert’s scientific, technical, or other specialized
    knowledge will help the trier of fact to understand the evidence
    or to determine a fact in issue;
    (b) the testimony is based on sufficient facts or data;
    (c) the testimony is the product of reliable principles and meth-
    ods; and
    15
    United States v. Driskill, No. ACM 39889 (f rev)
    (d) the expert has reliably applied the principles and methods to
    the facts of the case.
    Pursuant to Mil. R. Evid. 702, an expert may “testify in the form of an opin-
    ion or otherwise.” The expert’s opinion may be based on facts or data the expert
    has either personally observed or has been made aware of. Mil. R. Evid 703.
    In the Government’s sentencing case in aggravation, trial counsel may in-
    troduce evidence of “aggravating circumstances directly relating to or resulting
    from the offenses of which the accused has been found guilty.” R.C.M.
    1001(b)(4). Such evidence in aggravation may include “evidence of financial,
    social, psychological, and medical impact on or cost to any person . . . who was
    the victim of an offense committed by the accused . . . .” 
    Id.
    As this court has previously stated: “[t]he purpose of R.C.M. 1001(b)(4) is
    to provide the sentencing authority with information about the consequences
    and repercussions of an accused’s offenses in order that a proper sentence can
    be discerned.” United States v. Anderson, 
    60 M.J. 548
    , 556 (A.F. Ct. Crim. App.
    2004). This evidence naturally includes evidence that a victim “may develop
    psychological or behavioral problems” in the future as a direct result of an ac-
    cused’s offenses. 
    Id.
    In determining whether evidence admitted in aggravation is “directly re-
    lated” to the offenses of which an appellant was convicted, we assess whether
    the evidence is both direct and “closely related in time, type, and/or often out-
    come, to the convicted crime.” United States v. Hardison, 
    64 M.J. 279
    , 281–82
    (C.A.A.F. 2007). “Although the relationship to the appellant’s offenses must be
    ‘direct,’ there is no requirement that the impact be limited to matters that have
    already occurred.” Anderson, 
    60 M.J. at 556
    . It is well “accepted that impact
    evidence can include well-established prospective impact as well.” 
    Id.
    Even when evidence qualifies for admission under R.C.M. 1001(b)(4), its
    probative value must still be weighed against its prejudicial impact under Mil.
    R. Evid. 403. Hardison, 
    64 M.J. at 281
    . Mil. R. Evid. 403 states: “The military
    judge may exclude relevant evidence if its probative value is substantially out-
    weighed by a danger of one or more of the following: unfair prejudice, confusing
    the issues, misleading the members, undue delay, wasting time, or needlessly
    presenting cumulative evidence.” In applying the Mil. R. Evid. 403 balancing
    test, military judges enjoy “wide discretion.” United States v. Manns, 
    54 M.J. 164
    , 166 (C.A.A.F. 2000) (citations omitted). However, we give less deference
    to military judges’ decisions if they do not explain their analysis on the record,
    and we give military judges no deference when they fail to conduct the analysis
    at all. 
    Id.
    “When there is error in the admission of sentencing evidence, the test for
    prejudice is whether the error substantially influenced the adjudged sentence.”
    16
    United States v. Driskill, No. ACM 39889 (f rev)
    United States v. Barker, 
    77 M.J. 377
    , 384 (C.A.A.F. 2018) (internal quotation
    marks omitted) (quoting United States v. Sanders, 
    67 M.J. 344
    , 346 (C.A.A.F.
    2009)). We consider four factors to determine whether an error had a substan-
    tial influence on the sentence. Those factors include “(1) the strength of the
    Government’s case; (2) the strength of the defense case; (3) the materiality of
    the evidence in question; and (4) the quality of the evidence in question.” 
    Id.
    (internal quotation marks omitted and citations omitted). “An error is more
    likely to be prejudicial if the fact was not already obvious from the other evi-
    dence presented at trial and would have provided new ammunition against an
    appellant.” 
    Id.
     (citing United States v. Harrow, 
    65 M.J. 190
    , 200 (C.A.A.F.
    2007)).
    3. Analysis
    Here, the military judge did not abuse his discretion when he determined
    that Dr. EB’s testimony would assist the trier of fact to understand the poten-
    tial future harm WD could suffer as a child-victim of sexual abuse, and that
    such testimony was proper evidence in aggravation. See United States v. Stark,
    
    30 M.J. 328
    , 329–30 (C.M.A. 1990) (expert testimony that child victims of sex-
    ual abuse were “at a higher risk” of suffering from long-term effects of the
    abuse); United States v. Hammond, 
    17 M.J. 218
    , 219–21 (C.M.A. 1984) (expert
    testimony was admissible regarding evidence of the general effects of rape
    trauma even though the witness had neither interviewed nor counseled the
    victim).
    In this case, Dr. EB, an expert in the fields of clinical and forensic psychol-
    ogy, testified that WD was at a greater risk of experiencing psychological harm
    in the future. She based her opinion on three factors that she found applicable
    to Appellant’s court-martial which she personally observed. Consistent with
    her statements in the Article 39(a), UCMJ, hearing, Dr. EB based her testi-
    mony on research applicable to the evidence presented during findings, and
    her opinions were limited to the possible negative outcomes that WD could
    later face.
    We find that there was a sufficient basis in this case for the military judge
    to allow Dr. EB’s expert testimony because Dr. EB had observed the entire
    court-martial, which included watching WD’s testimony, and viewing WD’s
    recorded forensic interview. Also, as in Stark, trial defense counsel in this case
    conducted a vigorous cross-examination of Dr. EB, during which Dr. EB agreed
    that not all children would react the same way, and that there were several
    factors not present in WD’s case that could “predict greater negative out-
    comes.” Dr. EB also acknowledged on cross-examination that she had not per-
    sonally evaluated WD and could not say that WD would, in fact, experience
    any negative outcomes as a result of the sexual abuse she suffered.
    17
    United States v. Driskill, No. ACM 39889 (f rev)
    We also find that the military judge conducted sufficient analysis under
    Mil. R. Evid. 403 to make his determination. The military judge found Dr. EB’s
    testimony to be relevant, and that the probative value was significant given
    “Dr. [EB]’s knowledge skills and experience, and the facts and circumstances
    before this court-martial” that were present in the research. In contrast, the
    military judge found the risk of unfair prejudice to be low due to trial defense
    counsel’s ability to effectively cross-examine Dr. EB and adduce probative evi-
    dence to challenge her testimony. Based on these findings the military judge
    determined that the probative value of Dr. EB’s testimony substantially out-
    weighed the risk of prejudice.
    In this case, Appellant has not demonstrated that the military judge’s de-
    cision was “arbitrary, fanciful, clearly unreasonable, or clearly erroneous.”
    McElhaney, 54 M.J. at 130. Rather, the record demonstrates that the military
    judge correctly applied the facts to the law, conducted the required Mil. R.
    Evid. 403 balancing test, and properly instructed the members, prior to receiv-
    ing the evidence, on how to consider Dr. EB’s testimony. See Stark, 
    30 M.J. at 330
    . We therefore conclude that Dr. EB’s testimony on the possible psycholog-
    ical impact of Appellant’s crime on WD was properly admitted as expert testi-
    mony in aggravation.
    Assuming arguendo that the military judge erred in admitting the testi-
    mony of Dr. EB, we find Appellant suffered no prejudice. Applying the Barker
    factors, we find the Government’s case was strong. We also find that Dr. EB’s
    testimony was insubstantial as compared to the far more aggravating evidence
    already before the members concerning the circumstances and details of Ap-
    pellant’s criminal behavior. Additionally, we find that trial defense counsel’s
    effective cross-examination of Dr. EB sufficiently negated the risk that Dr.
    EB’s testimony had a substantial influence on the adjudged sentence. Finally,
    the military judge instructed the panel that they did not have to accept Dr.
    EB’s testimony or give it greater weight than any other evidence. We presume
    the members followed the military judge’s instructions. United States v. Custis,
    
    65 M.J. 366
    , 372 (C.A.A.F. 2007). Therefore, we conclude Dr. EB’s testimony
    did not “substantially influence the adjudged sentence.” Barker, 77 M.J. at 384.
    C. Double Jeopardy
    Appellant contends that the military judge erred by not dismissing the
    specification alleging possession of obscene cartoons on the grounds that Ap-
    pellant’s prosecution for this offense was in violation of the Fifth Amendment
    and the prohibition against double jeopardy contained in Article 44, UCMJ.
    Appellant asks this court to set aside the findings and sentence. We are not
    persuaded by Appellant’s contention and find no relief is warranted.
    18
    United States v. Driskill, No. ACM 39889 (f rev)
    1. Additional Background
    a. Appellant’s First Court-Martial
    Between 29 October and 2 November 2018, Appellant was tried by a mili-
    tary judge at a general court-martial for three specifications alleging that Ap-
    pellant (1) knowingly and wrongfully possessed child pornography, (2) know-
    ingly and wrongfully viewed child pornography, and (3) knowingly and wrong-
    fully possessed obscene cartoons under 18 U.S.C. § 1466A(b)(1), all in violation
    of Article 134, UCMJ.
    During closing argument at Appellant’s first court-martial, trial defense
    counsel argued that the specification related to the obscene cartoons was erro-
    neously drafted. The military judge, sua sponte, stated that she considered the
    argument to be a motion to dismiss, even though trial defense counsel did not
    characterize it as such. The military judge requested the parties draft written
    briefs on the issue. After receiving the written briefs and hearing argument
    but before entering any findings, the military judge dismissed the specification
    alleging possession of obscene cartoons for lack of jurisdiction. Subsequently,
    the military judge acquitted Appellant of the remaining two specifications.
    b. Appellant’s Second Court-Martial
    At Appellant’s second court-martial, which we now review, the Govern-
    ment charged Appellant with wrongful possession of obscene cartoons in viola-
    tion of Article 134, UCMJ. On 8 May 2019, the Defense moved to dismiss the
    specification, arguing that Appellant was now charged in violation of the Fifth
    Amendment’s prohibition against double jeopardy.12 On 15 May 2019, the Gov-
    ernment filed a response, and on 20 May 2019, a hearing was held pursuant to
    Article 39(a), UCMJ, at which time the motion was litigated. On 13 June 2019,
    the military judge issued his ruling and denied the defense motion to dismiss.
    In his written ruling, the military judge found Appellant was currently
    charged with one specification that alleged he wrongfully possessed obscene
    cartoons in violation of Article 134, UCMJ. The specification alleged that Ap-
    pellant:
    did, at or near Italy, between on or about 11 October 2016 and
    on or about 27 March 2018, knowingly and wrongfully possess
    obscene cartoons, such conduct being of a nature to bring dis-
    credit upon the armed forces.
    12 Trial defense counsel explicitly stated that he did not believe the double jeopardy
    issue was waived for appellate review despite Appellant’s plea of guilty to the specifi-
    cation.
    19
    United States v. Driskill, No. ACM 39889 (f rev)
    The military judge also found Appellant was previously tried by court-mar-
    tial for knowing and wrongful possession of obscene cartoons in violation Arti-
    cle 134, UCMJ. Specifically, the judge found the specification from Appellant’s
    first court-martial alleged that he:
    did, at or near Italy, between on or about 11 October 2016 and
    on or about 27 March 2018, knowingly and wrongfully possess
    obscene cartoons, to wit: visual depictions of minors engaging in
    sexually explicit conduct, and that said visual depictions were
    transported in foreign commerce by computer, in violation of 18
    U.S. Code Section 1466A(b)(1), an offense not capital.
    During the motions hearing, the military judge asked trial defense counsel
    to clarify the trial judge’s ruling at the first court-martial. The following dis-
    cussion ensued:
    Q [Military Judge]: What was the finding, though?
    A [Trial Defense Counsel]: The finding was lack of jurisdiction.
    Q: Okay. So, there was no finding entered as to the - -
    A: Yes, sir. It was dismissed before findings.
    The military judge then concluded that both specifications captured the
    same course of conduct, although they were charged under different provisions
    of Article 134, UCMJ. The military judge also found the trial judge in Appel-
    lant’s first court-martial did not enter a finding for the possession of obscene
    cartoons and that the specification was dismissed for lack of jurisdiction. The
    military judge also stated the evidence was “uncontroverted” that the trial
    judge for the first court-martial did not consider any of the evidence supporting
    the dismissed specification in reaching the findings on the other specifications.
    The military judge explained his conclusion was supported by the fact that the
    images alleged in the other specifications were contained on Appellant’s cell
    phone and the obscene cartoons in the dismissed specification were contained
    on Appellant’s laptops and USB drive.
    Ultimately, the military judge concluded that while jeopardy had at-
    tached in Appellant’s first court-martial when evidence on the merits was ad-
    mitted, that jeopardy was later severed when the military judge dismissed the
    specification on jurisdictional grounds prior to any final judgment on the spec-
    ification. The military judge then denied the Defense motion to dismiss. Sub-
    sequently, Appellant filed a petition with this court requesting a writ of man-
    damus to set aside the military judge’s denial of the defense motion and to
    order the obscene-cartoon specification dismissed with prejudice. This court
    denied the petition. See In re Driskill, Misc. Dkt. No. 2019-03, 
    2019 CCA LEXIS 281
    , at *3–4 (A.F. Ct. Crim. App. 2 Jul. 2019).
    20
    United States v. Driskill, No. ACM 39889 (f rev)
    2. Law
    “Whether a prosecution violates double jeopardy is a question of law” that
    we review de novo. United States v. Rice, 
    80 M.J. 36
    , 40 (C.A.A.F. 2020). Ques-
    tions of jurisdiction are reviewed de novo. See United States v. Kuemmerle, 
    67 M.J. 141
    , 143 (C.A.A.F. 2009).
    The Fifth Amendment provides that no person shall “be subject, for the
    same offence, to be twice put in jeopardy of life or limb.” U.S. CONST. amend.
    V. The prohibition against double jeopardy provides protection against multi-
    ple punishments and successive prosecutions for the same misconduct. See
    Brown v. Ohio, 
    432 U.S. 161
    , 165 (1977). One of the purposes underlying the
    prohibition on double jeopardy is “to protect the integrity of a final judgment.”
    United States v. Scott, 
    437 U.S. 82
    , 92 (1978). Another purpose is to ensure
    that the Government, “with all its resources and power,” is not “allowed to
    make repeated attempts to convict an individual” for an offense, “thereby sub-
    jecting him to embarrassment, expense and ordeal and compelling him to live
    in a continuing state of anxiety and insecurity, as well as enhancing the possi-
    bility that even though innocent he may be found guilty.” Green v. United
    States, 
    355 U.S. 184
    , 187–88 (1957).
    The double jeopardy clause applies to military personnel through Article
    44(a), UCMJ, 
    10 U.S.C. § 844
    (a), which provides that “[n]o person may, without
    his consent, be tried a second time for the same offense.” “Article 44, UCMJ,
    does not, however, offer broader protections than granted by the Constitution.”
    United States v. McClain, 
    65 M.J. 894
    , 899 (A. Ct. Crim. App. 2008) (citations
    omitted).
    The analysis of whether a prosecution is barred by double jeopardy includes
    two temporal components, “first, that jeopardy attaches, and second, that it
    terminates.” United States v. McMurrin, 
    72 M.J. 697
    , 704 (N.M. Ct. Crim. App.
    2013). “In the case of a jury trial, jeopardy attaches when a jury is empaneled
    and sworn. In a nonjury trial, jeopardy attaches when the court begins to hear
    evidence.” Serfass v. United States, 
    420 U.S. 377
    , 388 (1975). “[T]he conclusion
    that jeopardy has attached begins, rather than ends, the inquiry as to whether
    the Double Jeopardy Clause bars retrial.” 
    Id. at 390
     (quoting Illinois v. Somer-
    ville, 
    410 U.S. 458
    , 467 (1973)). Jeopardy can terminate when there is no final
    judgment on the matter, when a charge is withdrawn and dismissed without
    prejudice upon a defense motion, even after the presentation of evidence. See,
    e.g., Lee v. United States, 
    432 U.S. 23
     (1977); United States v. Dinitz, 
    424 U.S. 600
     (1976).
    “No court-martial proceeding which lacked jurisdiction to try the accused
    for the offense is a trial in the sense of the rule.” R.C.M. 907(b)(2)(C)(iv).
    “[B]efore a person can be said to have been put in jeopardy of life or limb the
    21
    United States v. Driskill, No. ACM 39889 (f rev)
    court in which he was acquitted or convicted must have had jurisdiction to try
    him for the offense charged.” Grafton v. United States, 
    206 U.S. 333
    , 345 (1907).
    3. Analysis
    At the first court-martial, a military judge-alone trial, Appellant was ar-
    raigned and entered pleas, and evidence on the merits was admitted. There-
    fore, we agree with the military judge that jeopardy had clearly attached. We
    also agree with the military judge that jeopardy terminated when the specifi-
    cation alleging that Appellant possessed obscene cartoons was dismissed with-
    out prejudice. We see no evidence of bad faith on behalf of the judge or trial
    counsel in this case. See Lee, 432 U.S. at 33 (the Double Jeopardy Clause will
    not bar reprosecution absent bad faith on behalf of judge or prosecutor). In fact,
    it was Appellant’s counsel who raised the issue during argument which even-
    tually led to dismissal of the specification. It is also clear the specification was
    dismissed for lack of jurisdiction—grounds wholly unrelated to Appellant’s
    guilt or innocence—and that the dismissal came before Appellant was acquit-
    ted of the remaining specifications. Therefore, we conclude that there was no
    final judgment on whether Appellant wrongfully possessed obscene cartoons,
    and that no constitutional or Article 44(a), UCMJ, violation occurred in this
    case.
    D. Providence of Guilty Plea
    Appellant claims his guilty plea for possessing obscene cartoons was im-
    provident because the cartoons were not obscene. Specifically, Appellant ar-
    gues that “some of the characters [in the cartoons] are actually hundreds of
    years old even though they appear young” and thus do not depict adults and
    children engaged in sexually explicit behavior. We disagree, and find no relief
    is warranted.
    1. Additional Background
    As part of his guilty plea, Appellant entered into a PTA in which he waived
    all waivable motions as pertaining to the obscene-cartoons specification. Ap-
    pellant also voluntarily entered into a stipulation of fact, where he agreed to
    the admissibility of 150 cartoon images that depicted adult figures engaged in
    sexually explicit conduct with what appear to be young children. Specifically,
    in the stipulation of fact, Appellant agreed that “[t]he cartoons were obscene
    in that their sexual content was patently offensive in light of community stand-
    ards,” and that the cartoons lacked any “serious literary, artistic, political, or
    scientific value.”
    The military judge asked Appellant during the guilty plea inquiry if “there
    [was] anything in the stipulation [of fact] that [he did] not wish to admit [was]
    true?” Appellant responded “No, Your Honor.”
    22
    United States v. Driskill, No. ACM 39889 (f rev)
    When describing this offense, Appellant stated, “I wrongfully possessed ob-
    scene cartoons. . . . I reviewed the cartoons on Prosecution Exhibit 1 [stipula-
    tion of fact] and agree that they meet the legal definition of obscenity because
    of what they depict.” The military judge then asked Appellant to describe why
    the cartoons were obscene. Appellant responded, “[B]ecause they depict draw-
    ings of characters that are smaller and childlike in nature engaging in sex acts
    . . . .” Appellant further agreed the cartoons were “patently offensive.”
    2. Law
    “A military judge’s decision to accept a guilty plea is reviewed for an abuse
    of discretion.” United States v. Forbes, 
    78 M.J. 279
    , 281 (C.A.A.F. 2019) (quot-
    ing United States v. Eberle, 
    44 M.J. 374
    , 375 (C.A.A.F. 1996)). In reviewing the
    providency of a plea, a military judge abuses his discretion only when there is
    “a substantial basis in law or fact for questioning the plea.” United States v.
    Inabinette, 
    66 M.J. 320
    , 321–22 (C.A.A.F. 2008) (quoting United States v.
    Prater, 
    32 M.J. 433
    , 436 (C.M.A. 1991)). The military judge’s legal conclusion
    about the providency of the plea is reviewed de novo. United States v. Harris,
    
    61 M.J. 391
    , 398 (C.A.A.F. 2005).
    “Once the military judge has accepted a plea as provident and has entered
    findings based on it, an appellate court will not reverse that finding and reject
    the plea unless it finds a substantial conflict between the plea and the ac-
    cused’s statements or other evidence of record.” United States v. Garcia, 
    44 M.J. 496
    , 498 (C.A.A.F. 1996).
    An appellant bears the burden of establishing that the record shows “a sub-
    stantial basis in law or fact to question the plea.” United States v. Phillips, 
    74 M.J. 20
    , 21–22 (C.A.A.F. 2015). “A ‘mere possibility’ of such a conflict is not a
    sufficient basis to overturn the trial results.” Garcia, 
    44 M.J. at 498
     (quoting
    Prater, 32 M.J. at 436).
    Appellate courts will not speculate on the existence of facts that might in-
    validate a plea especially where the matter raised post-trial contradicts an ap-
    pellant’s express admission on the record. See United States v. Johnson, 
    42 M.J. 443
    , 445 (C.A.A.F. 1995).
    “A guilty plea is provident if the facts elicited make out each element of the
    charged offense.” Harrow, 65 M.J. at 205.
    “‘Indecent’ is synonymous with ‘obscene,’ and such language is not afforded
    constitutional protection.” United States v. Moore, 
    38 M.J. 490
    , 492 (C.M.A.
    1994) (citing United States v. French, 
    31 M.J. 57
    , 59 (C.M.A. 1990)); see also
    United States v. Meakin, 
    78 M.J. 396
    , 401 (C.A.A.F. 2019).
    “Indecent language” is defined as “that which is grossly offensive to mod-
    esty, decency, or propriety, or shocks the moral sense, because of its vulgar,
    23
    United States v. Driskill, No. ACM 39889 (f rev)
    filthy, or disgusting nature, or its tendency to incite lustful thought.” 2016
    MCM, pt. IV, ¶ 89.c.
    The United States Supreme Court outlined “basic guidelines” for
    determining whether forms of expression amount to obscenity in
    Miller v. California. 
    413 U.S. 15
    , 24 (1973). These guidelines are:
    (a) whether “the work, taken as a whole, appeals to the prurient
    interest” when viewed through the lens of “the average person,
    applying contemporary community standards;” (b) “whether the
    work depicts or describes, in a patently offensive way, sexual
    conduct;” and (c) “whether the work, taken as a whole, lacks se-
    rious literary, artistic, political, or scientific value.”
    United States v. White, No. ACM 39917 (f rev), 
    2022 CCA LEXIS 344
    , at *22–
    23 (A.F. Ct. Crim. App. 10 Jun. 2022) (unpub. op.) (citations omitted).
    3. Analysis
    At trial, the military judge conducted a comprehensive inquiry not just of
    Appellant’s plea, but, inter alia, also of his right to counsel and the PTA and
    stipulation of fact that Appellant signed. After the military judge read the ele-
    ments and definitions for wrongful possession of obscene cartoons, Appellant
    acknowledged that he understood the elements and definitions and that, when
    taken together, they accurately described his conduct. Appellant described the
    cartoons and why they were obscene in his own words. The military judge re-
    viewed the stipulation of fact, including 150 cartoon images where a significant
    number of the images depicted adult figures engaged in sexually explicit con-
    duct with what appear to be young children which Appellant averred was ac-
    curate. We conclude that the military judge did not abuse his discretion in ac-
    cepting Appellant’s plea and had no evident basis for rejecting it. Accordingly,
    we find Appellant’s guilty plea was voluntary and provident.
    E. Trial Counsel’s Closing Argument
    Appellant claims that trial counsel committed prosecutorial misconduct
    during his findings argument by using evidence that was admitted under Mil.
    R. Evid. 404(b) for the purpose of showing that Appellant had the propensity
    to commit the charged crimes. Specifically, Appellant alleges trial counsel used
    evidence that Appellant possessed child pornography to show that he had the
    propensity to rape and sexually abuse his daughter. Appellant asks this court
    to set aside the findings and sentence. We disagree with Appellant’s claims and
    find no relief is warranted.
    24
    United States v. Driskill, No. ACM 39889 (f rev)
    1. Additional Background
    As we noted above in section C, Appellant was previously acquitted of
    wrongfully possessing and viewing child pornography. During Appellant’s cur-
    rent trial, trial defense counsel filed a motion to exclude any evidence of Ap-
    pellant’s alleged prior child pornography offenses. The military judge ruled HD
    could testify that Appellant had shown her child pornography, but that she
    could not detail the number of images or the images’ content. At trial, the sen-
    ior trial counsel asked HD if Appellant had shown her images of child pornog-
    raphy which she answered affirmatively. HD then testified about a conversa-
    tion she had with Appellant regarding child pornography. She asked Appellant
    if he “got off on [child pornography],” and Appellant confirmed by stating, “Why
    does anybody look at pornography, [HD]?” HD also testified Appellant con-
    fessed to her that he started looking at child pornography to “help these chil-
    dren,” but later “started getting turned on by it.” HD asked Appellant if he
    would ever touch a child, and he responded, “I don’t know, because I can’t even
    stop looking at a picture.”
    At the conclusion of HD’s testimony, the military judge issued the following
    instruction to the members:
    You’ve heard evidence that [Appellant] may have shown [HD]
    images of child pornography, and commented on his willingness
    to commit crimes similar to those in the images. You may con-
    sider this for the limited purpose of its tendency, if any, to deter-
    mine whether [Appellant] had a motive to commit any of the
    charged offenses, as well as to prove that [Appellant] intended
    to commit the offense alleged in Specification 2 of the Additional
    Charge [sexual abuse of a child]. You may not consider this evi-
    dence for any other purpose. And you may not conclude from this
    evidence that [Appellant] is a bad person, or has general crimi-
    nal tendencies and that he, therefore, committed the offenses
    charged.
    During findings argument, trial counsel argued:
    [HD] described it as child pornography. And you know it is, be-
    cause what was his response when she first found out about it,
    how did he describe why he started looking at these images? He
    said, “I just wanted to help these kids,” or words to that effect.
    He wanted to help them? Well, the one thing we know from that
    is that they were real kids, because there’s no helping cartoons.
    And so ultimately, members, you have to know exactly what this
    guy was into.
    Trial counsel continued:
    25
    United States v. Driskill, No. ACM 39889 (f rev)
    W]hen he tells [HD]: I don’t know [HD], I just can’t stop looking
    at them or I can’t even stop looking at them. You know what he
    was bound to do. You know if that’s the line that he would draw,
    I will look at them but I will not offend, his answer is much dif-
    ferent to his wife. And the cross-examination was he had been
    drinking. Yeah, some truth serum got it out. For sure. For sure.
    Some truth serum got us to understand exactly what his intent
    was, and what his motive has been all along. Absolutely he said
    that to her.
    Trial counsel went on to argue that when Appellant sobered up the next
    day, he “change[d] the degree and timeline of his guilt.” Trial counsel argued
    that Appellant’s culpability changed “[b]ecause he has to hide from the very
    fact that every time he looks at these images he has the same arousal. And he
    has to hide from the very fact that he is motivated to do it himself.”
    Trial defense counsel did make objections to other statements in trial
    counsel’s argument, but none pertaining to either the Mil R. Evid. 404(b) evi-
    dence or to any of the above-quoted arguments.
    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. Bungert, 
    62 M.J. 346
    , 348
    (C.A.A.F. 2006).
    “Improper argument is one facet of prosecutorial misconduct.” United
    States v. Sewell, 
    76 M.J. 14
    , 18 (C.A.A.F. 2017). Prosecutorial misconduct oc-
    curs 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 178 (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
    26
    United States v. Driskill, No. ACM 39889 (f rev)
    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).
    “[T]he lack of a defense objection is ‘some measure of the minimal impact
    of a prosecutor’s improper comment.’” United States v. Gilley, 
    56 M.J. 113
    , 123
    (C.A.A.F. 2001) (quoting United States v. Carpenter, 
    51 M.J. 393
    , 397 (C.A.A.F.
    1999)).
    3. Analysis
    Because trial defense counsel did not object, we review for plain error. We
    are not persuaded by Appellant’s argument that trial counsel used evidence
    admitted under Mil. R. Evid. 404(b) for the improper purpose of arguing Ap-
    pellant had the propensity to commit the charged offenses. We find that trial
    counsel argued admitted evidence for the express purpose of showing Appel-
    lant’s motive and intent. In support of his position that trial counsel misused
    the evidence, Appellant asks that we focus our attention on eight words spoken
    by trial counsel, “You know what he was bound to do.” However, after review
    of trial counsel’s entire argument, it is evident that trial counsel was not link-
    ing Appellant’s alleged possession of child pornography to a propensity to com-
    mit rape or sexual abuse of a child. Rather, trial counsel reasoned that Appel-
    lant was discretely revealing his motive and intent to sexually assault a child
    because he could not reassure his wife that he would never touch a child sex-
    ually. We note the military judge had previously instructed the members that
    they could consider Appellant’s comments to HD “for the limited purpose of its
    tendency, if any, to determine whether [Appellant] had a motive to commit any
    of the charged offenses.” Therefore, we conclude that trial counsel properly ar-
    gued evidence admitted for its limited permitted purpose and that there was
    no error plain or otherwise.
    Even if we were to assume that TC’s argument constituted plain or obvious
    error, Appellant would not be entitled to relief because he has failed to demon-
    strate prejudice. After considering the three factors set forth by the United
    States Court of Appeals for the Armed Forces 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
    27
    United States v. Driskill, No. ACM 39889 (f rev)
    eight words in an otherwise lengthy findings argument. We find the first factor
    weighs in the Government’s favor.
    With regard to the second Fletcher factor, our review of the record finds
    that the military judge reiterated his instruction regarding the limited purpose
    for which the members could consider Appellant’s alleged possession of child
    pornography at least three times. We note again that the military judge pro-
    vided a limiting instruction once after the testimony was heard, once immedi-
    ately before trial counsel argued, and once directly after the conclusion of trial
    counsel’s argument. “Absent evidence to the contrary, this [c]ourt may pre-
    sume that members follow a military judge’s instructions.” United States v.
    Taylor, 
    53 M.J. 195
    , 198 (C.A.A.F. 2000) (citations omitted); see also Custis, 
    65 M.J. at 372
    . Therefore, we find the second factor also weighs in the Govern-
    ment’s favor.
    Finally, as we noted above, we find the strength of the evidence signifi-
    cantly favors the Government. The Government presented a compelling case,
    including the testimony of WD, HD, and JC. In sum, we find no prospect that
    the allegedly erroneous argument—eight words—played any substantial role
    in the court members’ findings. Therefore, the third factor also weighs in the
    Government’s favor. After weighing the Fletcher factors together and consid-
    ering trial counsel’s arguments in context, we are confident the court members
    properly convicted Appellant on the basis of the evidence alone.
    F. Sentence Appropriateness
    Appellant contends his sentence to 40 years and 9 months of confinement
    is inappropriately severe. We agree.
    This court “may affirm only . . . the sentence or such part or amount of the
    sentence, as it finds correct in law and fact and determines, on the basis of the
    entire record, should be approved.” Article 66(d), UCMJ. We review sentence
    appropriateness de novo, employing “a sweeping Congressional mandate to en-
    sure ‘a fair and just punishment for every accused.’” United States v. Baier, 
    60 M.J. 382
    , 383–84 (C.A.A.F. 2005) (quoting United States v. Bauerback, 
    55 M.J. 501
    , 504 (A. Ct. Crim. App. 2001)). In determining whether a sentence should
    be approved, our authority is “not legality alone, but legality limited by appro-
    priateness.” United States v. Nerad, 
    69 M.J. 138
    , 141 (C.A.A.F. 2010) (citing
    United States v. Atkins, 
    23 C.M.R. 301
    , 303 (C.M.A. 1957)).
    “We assess sentence appropriateness by considering the particular appel-
    lant, the nature and seriousness of the offense[s], the appellant’s record of ser-
    vice, and all matters contained in the record of trial.” United States v. Ander-
    son, 
    67 M.J. 703
    , 705 (A.F. Ct. Crim. App. 2009) (per curiam) (citations omit-
    28
    United States v. Driskill, No. ACM 39889 (f rev)
    ted). While we have great discretion in determining whether a sentence is ap-
    propriate, we are not authorized to engage in exercises of clemency. See Nerad,
    69 M.J. at 146.
    In conducting this review, we must also be sensitive to considerations of
    uniformity and even-handedness. United States v. Sothen, 
    54 M.J. 294
    , 296
    (C.A.A.F. 2001) (citing United States v. Lacy, 
    50 M.J. 286
    , 287–88 (C.A.A.F.
    1999)).
    We have conducted a thorough review of Appellant’s entire court-martial
    record, including his record of service. Our review of the trial record shows
    Appellant did not make an unsworn statement, and presented no evidence for
    the members’ consideration before they determined his sentence. Additionally,
    our review of Appellant’s service record shows that he joined the Air Force on
    3 May 2016, served no deployments, served no remote tours, and did not have
    an enlisted performance report.
    Here, we note that Appellant’s misconduct is severe and that the maximum
    sentence Appellant faced included a term of confinement for life without parole
    and a dishonorable discharge.
    Nonetheless, based on our collective experiences as judge advocates and
    appellate judges, and taking into account the principles of sentencing and the
    matters in aggravation, as balanced by the matters in mitigation, we conclude
    that Appellant’s sentence to confinement for 40 years and 9 months is inappro-
    priately severe. In making this determination, we are not engaging in an act
    of clemency; rather, we are fulfilling our duty under Article 66(d), UCMJ, to
    maintain uniformity and even-handedness of court-martial sentencing deci-
    sions. See Sothen, 
    54 M.J. at 296
    . Our decision is not made lightly and was the
    product of considerable reflection, deliberation, and debate. See Lacy, 
    50 M.J. at
    288 (citing United States v. Olinger, 
    12 M.J. 458
    , 461 (C.M.A. 1982) (“Under
    Article 66(c), [UCMJ,] Congress has furthered the goal of uniformity in sen-
    tencing in a system that values individualized punishment by relying on the
    judges of the Courts of Criminal Appeals to utilize the experience distilled from
    years of practice in military law to determine whether, in light of the facts
    surrounding [the] accused’s delict, his sentence was appropriate.” (Alteration
    in original)); see also United States v. Wacha, 
    55 M.J. 266
    , 267 (C.A.A.F. 2001)
    (citing United States v. Ballard, 
    20 M.J. 282
    , 286 (C.M.A. 1985)) (affirming the
    importance of the “accumulated knowledge” of “experienced Court of Criminal
    Appeal judges” in assessing for sentence appropriateness). We conclude that a
    sentence of a dishonorable discharge, confinement for 30 years, forfeiture of all
    pay and allowances, and reduction to the grade of E-1 should be affirmed.
    29
    United States v. Driskill, No. ACM 39889 (f rev)
    III. CONCLUSION
    We affirm only so much of the sentence that includes a dishonorable dis-
    charge, confinement for 30 years, forfeiture of all pay and allowances, and re-
    duction to the grade of E-1. The findings as entered and sentence as reassessed
    are correct in law and fact and no error materially prejudicial to the substantial
    rights of Appellant occurred. Articles 59(a) and 66(d), UCMJ, 
    10 U.S.C. §§ 859
    (a), 866(d). Accordingly, the findings of guilty as entered, and the sentence
    as reassessed, are AFFIRMED.
    MEGINLEY, Judge (dissenting):
    Although Appellant did not specifically ask the military judge to instruct
    the members that a finding of guilty must be unanimous, and while it is un-
    known whether Appellant was convicted by a unanimous verdict, Appellant
    argues the Government could not prove beyond a reasonable doubt that the
    military judge’s failure to instruct the panel that a guilty verdict must be unan-
    imous was harmless. In United States v. Westcott, I found the appellant was
    denied equal protection under the law and would have set aside the findings
    without prejudice; our superior court has since denied review in that case. No.
    ACM 39936, 
    2022 CCA LEXIS 156
    , at *108 (A.F. Ct. Crim. App. 
    17 Mar. 2022
    )
    (Meginley, J., dissenting in part and in the result) (unpub. op.), rev. denied, No.
    22-0206, 
    2022 CAAF LEXIS 522
     (C.A.A.F. 21 Jul. 2022).
    Nonetheless, in United States v. Anderson, the United States Court of Ap-
    peals for the Armed Forces (CAAF) granted the appellant’s petition on the fol-
    lowing issue:
    WHETHER APPELLANT WAS DEPRIVED OF HIS RIGHT TO
    A UNANIMOUS VERDICT AS GUARANTEED BY THE SIXTH
    AMENDMENT, THE FIFTH AMENDMENT’S DUE PROCESS
    CLAUSE, AND THE FIFTH AMENDMENT’S RIGHT TO
    EQUAL PROTECTION.
    No. 22-0193, 
    2022 CAAF LEXIS 529
     (C.A.A.F. 25 Jul. 2022). That same day,
    the CAAF also granted review in United States v. Veerathanongdech on the
    following issue:
    WHETHER THE MILITARY JUDGE’S FAILURE TO IN-
    STRUCT THE PANEL THAT A GUILTY VERDICT MUST BE
    UNANIMOUS WAS HARMLESS BEYOND A REASONABLE
    DOUBT.
    No. 22-0205, 
    2022 CAAF LEXIS 533
     (C.A.A.F. 25 Jul. 2022).
    30
    United States v. Driskill, No. ACM 39889 (f rev)
    I believe these two issues are encompassed within my dissent in Westcott.
    Therefore, although the CAAF denied review in Westcott, in light of these two
    grants by the CAAF, I maintain my position as articulated in Westcott, and
    find Appellant was denied equal protection under the law and would set aside
    the findings without prejudice.
    FOR THE COURT
    ANTHONY F. ROCK, Maj, USAF
    Acting Clerk of the Court
    31
    

Document Info

Docket Number: 39889 (f rev)

Filed Date: 8/23/2022

Precedential Status: Non-Precedential

Modified Date: 5/29/2024