United States v. Cole ( 2024 )

This opinion is subject to revision before publication.
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Kristopher D. COLE, Airman First Class
United States Air Force, Appellant
No. 23-0162
Crim. App. No. 40189
Argued December 6, 2023—Decided June 6, 2024
Military Judges: Brett A. Landry (arraignment and
motions) and Mark W. Milam (trial)
For Appellant: Captain Samantha P. Golseth (ar-
gued); Major Abhishek S. Kambli (on brief); Megan
P. Marinos, Esq.
For Appellee: Captain Jocelyn Q. Wright (argued);
Colonel Matthew D. Talcott, Lieutenant Colonel
James P. Ferrell, and Mary Ellen Payne, Esq. (on
brief).
Judge JOHNSON delivered the opinion of the Court,
in which Chief Judge OHLSON, Judge SPARKS,
Judge MAGGS, and Judge HARDY joined.
_______________
United States v. Cole, No. 23-0162/AF
Opinion of the Court
Judge JOHNSON delivered the opinion of the Court.
Appellant, Airman First Class (A1C) Kristopher D.
Cole, appealed the decision of the United States Air Force
Court of Criminal Appeals (AFCCA) upholding his sen-
tence for offenses that he pled guilty to, which included
Specification 2 of Charge II for simple assault with an un-
loaded firearm in violation of Article 128, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 928 (2018). Despite
finding that the military judge erred in relation to Specifi-
cation 2 of Charge II during the providence inquiry by “in-
dicating that Appellant was charged with the offense of as-
sault consummated by a battery and in advising and
conducting a colloquy on matters that were not part of the
charged offense,” United States v. Cole, No. ACM 40189,
2023 CCA LEXIS 118, at *53-54, 2023 WL 2365322, at *18
(A.F. Ct. Crim. App. Mar. 6, 2023) (unpublished), the
AFCCA concluded that “such errors did not substantially
influence Appellant’s adjudged sentence,” id. at *58, 2023
WL 2365322, at *19. The AFCCA affirmed Appellant’s sen-
tence. Id. at *58, 2023 WL 2365322, at *20. We disagree
and reverse the decision of the AFCCA as to the sentence.
In June of 2021, Appellant was convicted, in accordance
with his pleas, of one specification each of assault via stran-
gulation on divers occasions (Specification 1 of Charge II),
simple assault with an unloaded firearm (Specification 2 of
Charge II), and assault consummated by a battery (Speci-
fication 7 of Charge II), in violation of Article 128, UCMJ. 1
He was sentenced to a reduction to the grade of E-1, a rep-
rimand, a total of fourteen months of confinement, 2 and a
1 In accordance with Appellant’s plea agreement, the conven-
ing authority withdrew and dismissed two specifications of sex-
ual assault and four additional specifications of assault, in vio-
lation of Articles 120 and 128, UCMJ, 10 U.S.C. §§ 920, 928
(2018).
2 The plea agreement provided that Appellant would be sen-
tenced to a minimum of sixty days and a maximum of six months
of confinement for each of the three specifications, to be served
consecutively. The adjudged confinement sentence consisted of
six months for Specification 1 of Charge II, six months for
2
United States v. Cole, No. 23-0162/AF
Opinion of the Court
bad-conduct discharge. The convening authority took no ac-
tion on the findings, disapproved the reprimand, and oth-
erwise approved the sentence as adjudged. The AFCCA af-
firmed the findings and sentence. Cole, 2023 CCA LEXIS
118, at *58, 2023 WL 2365322, at *20.
We granted review to determine:
Whether Appellant is entitled to relief because the
military judge misapprehended the offense in
Specification 2 of Charge II for which he sentenced
Appellant.
United States v. Cole, 83 M.J. 393, 393 (C.A.A.F. 2023) (or-
der granting review).
For the reasons set forth below, we hold that the
military judge improperly identified Specification 2 of
Charge II as an assault consummated by battery and his
erroneous view of the elements of the offense alleged in
Specification 2 of Charge II makes it unclear whether he
sentenced Appellant for aggravated assault with a
dangerous weapon or simple assault with an unloaded
firearm, thereby materially prejudicing Appellant’s
substantial right to be sentenced for the correct offense
based on a consideration of the nature, circumstances, and
seriousness of the offense. Accordingly, we answer the
granted issue in the affirmative and reverse the decision of
the AFCCA as to the sentence.
I. Background
A1C RL3 and Appellant met each other around July
2019 while they were both assigned to Davis-Monthan Air
Force Base in Arizona. From around August 2019 to Janu-
ary 2020, they spent time together at Appellant’s
Specification 2 of Charge II, and two months for Specification 7
of Charge 2, to be served consecutively.
3 Although she was a civilian at the time of the court-martial,
RL was an A1C at the time the charged conduct occurred, and
we refer to her as “A1C RL” in this opinion.
3
United States v. Cole, No. 23-0162/AF
Opinion of the Court
apartment on the weekends, and A1C RL would spend the
night on most weekends.
The AFCCA, quoting language from the stipulation of
fact that Appellant provided with his offer to plead guilty,
described the facts relevant to the offense in question as
follows:
Appellant was a self-described “firearms en-
thusiast;” RL “was not familiar with firearms.”
[On or about September 21, 2019, . . .] Appellant
“handed [RL] his Kriss Vector rifle to disassemble
and reassemble.” RL was struggling to reassemble
the rifle precisely, said she was tired, and “asked
if she could just go to bed.” Appellant became an-
gry. He yelled at RL as she sat on the couch where
she had been reassembling the rifle. Appellant
“walked over to [RL] and held up his 9mm Smith
and Wesson pistol [] to her temple.” “He yelled,
‘[D]on’t disrespect me in my own house, you are
going to do this. My house, my rules, you are going
to finish it, that’s what I told you to do!’ [RL] was
terrified.” Unbeknownst to RL, Appellant had
pulled the firing pin out of the pistol. Appellant
later told one of his roommates “that he pulled the
trigger when he held the pistol to [RL’s] temple.”
Appellant told another person that “he did it to
‘put pressure on [RL] and to make her go faster.’”
When [a different person] confronted Appellant
about whether he really held up a pistol to RL’s
temple, Appellant “said he did, and said it was
funny.”
Cole, 2023 CCA LEXIS at *6-7, 2023 WL 2365322, at *3
(second through eighth alterations in original).
Relevant to this appeal, Appellant was charged with
simple assault with an unloaded firearm in violation of Ar-
ticle 128, UCMJ. Specification 2 of Charge II alleged: “In
that [Appellant] . . . did within the state of Arizona, be-
tween on or about 1 September 2019 and on or about 28
September 2019, assault [A1C RL] by pointing an unloaded
firearm at her head.”
Appellant offered to plead guilty to Specification 2 of
Charge II in exchange for a sentence between sixty days
4
United States v. Cole, No. 23-0162/AF
Opinion of the Court
and six months of confinement, to be served consecutively
with any confinement for the two additional specifications
to which he offered to plead guilty, and the convening au-
thority’s agreement to withdraw and dismiss the remain-
ing charges and specifications. Trial defense counsel certi-
fied that they had advised Appellant of the elements of the
offenses to which he was pleading guilty. Appellant
acknowledged that he had been advised of the nature of the
charges against him and was in fact guilty of the offenses
to which he was offering to plead guilty. The day after the
convening authority accepted Appellant’s offer to plead
guilty, the parties stipulated that “[o]n or about 21 Septem-
ber 2019, [Appellant] pointed an unloaded firearm at A1C
[RL’s] head, touching her temple. He had no legal justifica-
tion or excuse for doing so. He did so with force and vio-
lence. A1C [RL] did not consent to his action.”
II. Providence Inquiry
The elements of simple assault are:
(a) That the accused attempted to do or offered to
do bodily harm to a certain person;
(b) That the attempt or offer was done unlaw-
fully; and
(c) That the attempt or offer was done with force
or violence.
Manual for Courts-Martial, United States pt. IV, para.
77.b.(1) (2019 ed.) (MCM). The maximum sentence for
simple assault is “[c]onfinement for 3 months and
forfeiture of two-thirds pay per month for 3 months.” MCM
pt. IV, para. 77.d.(1)(a) (2019 ed.). For simple assault with
an unloaded firearm, the maximum punishment is
“[d]ishonorable discharge, forfeiture of all pay and
allowances, and confinement for three years.” MCM pt. IV,
para. 77.d.(1)(b) (2019 ed.).
A military judge conducted a providence inquiry to de-
termine whether to accept Appellant’s pleas. During the
providence inquiry, the military judge walked through the
stipulation of fact with Appellant. Then, the military judge
purported to explain the elements of the simple assault
5
United States v. Cole, No. 23-0162/AF
Opinion of the Court
alleged in Specification 2 of Charge II. In doing so, the mil-
itary judge referred to the offense as an assault consum-
mated by battery, but he instructed on the elements of an
aggravated assault with a dangerous weapon.
The elements of aggravated assault with a dangerous
weapon are:
(i) That the accused offered to do bodily harm to a
certain person;
(ii) The offer was made with the intent to do bodily
harm; and
(iii) That the accused did so with a dangerous
weapon.
MCM pt. IV, para. 77.b.(4)(a) (2019 ed.). The maximum
confinement sentence for an aggravated assault with a
dangerous weapon is eight years “[w]hen committed with a
loaded firearm,” MCM pt. IV, para. 77.d.(3)(a)(i) (2019 ed.);
five years “[w]hen committed upon a child under the age of
16 years, spouse, intimate partner, or an immediate family
member,” id. at para. 77.d.(3)(a)(ii); and three years in
“[o]ther cases,” id. at para. 77.d.(3)(a)(iii).
The military judge instructed:
The elements of that offense, which is called as-
sault consummated by battery, are, one, that be-
tween on or about 1 August 2019 and on or about
20 January 2020, within the state of Arizona, you
did assault Airman First Class R.L. by offering to
do bodily harm to her. Two, that you did so by
pointing at her with a certain weapon, to wit, an
unloaded firearm. Three, that you intended to do
bodily harm and four, that the weapon was a dan-
gerous weapon.
The military judge then provided definitions for “as-
sault,” “offer to do bodily harm,” “bodily harm,” “dangerous
weapon,” and “firearm.” With respect to “dangerous
weapon,” the military judge stated, “A weapon is a danger-
ous weapon when used in a manner capable of inflicting
death or grievous bodily harm. What constitutes a danger-
ous weapon depends not on the nature of the object itself,
6
United States v. Cole, No. 23-0162/AF
Opinion of the Court
but on its capability, given the manner of its use to inflict
grievous bodily harm.” 4
Appellant acknowledged that he understood the ele-
ments and definitions, and he admitted they accurately de-
scribed his conduct. Then, he described in his own words
why he was guilty of the offense listed in Specification 2 of
Charge II:
Between on or about 1 September 2019 and on or
about 28 September 2019, at my off base residence
in Tucson, Arizona, myself, A1C R.L. and others
were cleaning guns together. During the night, I
pointed a firearm at A1C R.L. This was done un-
lawfully and I did not have legal purpose to do so.
While the firearm was unloaded and had the fir-
ing pin removed, which means it could not have
been fired, I was wrong, and it was illegal for me
to point a firearm at her. It was violent because I
believe Ms. R.L. did not want me to point the fire-
arm at her and it would have scared her. A1C R.L.
did not consent to me doing this and I apologize
for my actions.
The military judge then asked Appellant questions re-
lating to the definitions that he had provided:
MJ: [W]hat I wanted to ask you was, the unloaded
firearm, it was a 9mm Smith and Wesson, I be-
lieve in the stipulation of fact, it stated, and I
wanted to ask you if you consider that a dangerous
weapon under the definitions I have given you?
ACC: Yes, Your Honor.
MJ: Do you believe that you had any legal justifi-
cation or excuse for pointing the gun at Airman
R.L.?
ACC: No, Your Honor.
MJ: Would you agree that pointing the gun at her
and stating what you stated was bodily harm un-
der the definition I gave you?
4 This is consistent with the definition of “dangerous weapon”
found in MCM pt. IV, para. 77.c.(5)(a)(iii) (2019 ed.).
7
United States v. Cole, No. 23-0162/AF
Opinion of the Court
ACC: Yes, Your Honor.
MJ: And my other question is, did you intend to
point the gun at her?
ACC: Yes, Your Honor.
....
MJ: All right, thank you. So, my question for trial
counsel is, do you believe any further inquiry is
required for this specification?
ATC: No, Your Honor.
MJ: Defense?
DC: No, Your Honor.
Prior to accepting Appellant’s pleas, the military judge
concurred with the parties’ calculation that the maximum
sentence to confinement permitted under law for all three
specifications that Appellant agreed to plead guilty to was
six years and six months. The military judge accepted Ap-
pellant’s pleas and sentenced him, in accordance with the
plea agreement, to a total of fourteen months of confine-
ment, including six months of confinement for Specification
2 of Charge II.
III. The AFCCA’s Ruling
On appeal, Appellant raised two assignments of error. 5
Cole, 2023 CCA LEXIS at *2, 2023 WL 2365322, at *1. Af-
ter receiving briefs on the assigned errors, the AFCCA
specified two issues for additional briefing: “whether Ap-
pellant’s plea of guilty to Specification 2 of Charge II was
improvident because the military judge misadvised Appel-
lant of the nature and elements of the offense” and
“whether Appellant is entitled to relief because the mili-
tary judge misapprehended the offense in Specification 2 of
5 Appellant claimed that (1) trial defense counsel were inef-
fective and (2) Appellant’s guilty plea was improvident because
the military judge did not investigate Appellant’s traumatic
brain injury. Cole, 2023 CCA LEXIS at *2, 2023 WL 2365322, at
*1. The AFCCA concluded that neither of these issues warranted
relief. Id. at *3, 2023 WL 2365322, at *1.
8
United States v. Cole, No. 23-0162/AF
Opinion of the Court
Charge II for which he sentenced Appellant.” Id. at *2-3,
2023 WL 2365322, at *1.
The AFCCA found that the military judge erred “in in-
dicating that Appellant was charged with the offense of as-
sault consummated by a battery and in advising and con-
ducting a colloquy on matters that were not part of the
charged offense.” Id. at *53-54, 2023 WL 2365322, at *18.
Specifically, the military judge erroneously instructed that
Specification 2 of Charge II required proof of Appellant’s
intent to do bodily harm and that the weapon was a dan-
gerous weapon and provided definitions for these elements.
Id. at *51-52, *52 n.14, 2023 WL 2365322, at *18, *18 n.14.
Notwithstanding those errors, the AFCCA found that
“[t]he stipulated facts plus the providence inquiry estab-
lished a factual basis for Appellant’s plea,” and “Appellant
ha[d] not met his burden to show a substantial basis to
question his plea to Specification 2 of Charge II.” Id. at *54,
2023 WL 2365322, at *18. 6
With respect to sentencing, the AFCCA found that the
errors made by the military judge during the providence
inquiry did not substantially influence the adjudged sen-
tence because the record was devoid of evidence “that the
military judge considered extra aggravating factors during
sentencing” (i.e., the use of a dangerous weapon and an in-
tent to cause bodily harm). Id. at *55, 2023 WL 2365322,
at *19. First, the AFCCA noted that, “[t]he military judge
was well aware that the firearm Appellant used was un-
loaded and therefore could not be used to inflict death or
grievous bodily harm on RL.” Id. at *55, 2023 WL 2365322,
at *19. Second, trial counsel did not argue the elements ap-
plicable only to aggravated assault with a dangerous
weapon—that the firearm was a dangerous weapon and
6 The parties do not challenge the AFCCA’s ruling that the
military judge erred by instructing and questioning Appellant
on elements and definitions that apply to aggravated assault
with a dangerous weapon but not simple assault with an un-
loaded weapon. Instead, the granted issue before this Court fo-
cuses on the impact of the military judge’s errors during the
providence inquiry on Appellant’s sentence.
9
United States v. Cole, No. 23-0162/AF
Opinion of the Court
that Appellant intended to do bodily harm. Id. at *57, 2023
WL 2365322, at *19. Third, “the military judge did not
make additional statements that could be inconsistent
with a finding of guilty to simple assault with an unloaded
firearm.” Id. at *57, 2023 WL 2365322, at *19. According to
the AFCCA, “the military judge agreed with counsel that
the maximum period of confinement was six years and six
months, well below the maximum period of eight years
solely for the offense of aggravated assault.” 7 Id. at *57,
2023 WL 2365322, at *19. Additionally, although the state-
ment of trial results and the entry of judgment are not “a
finding nor part of the sentence,” the AFCCA found it “in-
structive on the issue at hand” that “[t]he statement of trial
results and entry of judgment—both signed by the military
judge—correctly record the offense code to be reported to
the Defense Incident-Based Reporting System (DIBRS) as
‘128-A1’ for simple assault with an unloaded firearm.” Id.at *58 n.16, at 2023 WL 2365322, at *19 n.16.
In light of these considerations, the AFCCA found that
“[t]he military judge did not impose a sentence for an of-
fense more serious than Appellant was charged with com-
mitting.” Id. at *58, at 2023 WL 2365322, at *19. Conclud-
ing that the military judge erred but finding no material
prejudice to Appellant’s substantial rights, the AFCCA af-
firmed the findings and sentence. Id. at *58, at 2023 WL
2365322, at *20.
IV. Standard of Review
Questions of law arising from a guilty plea are reviewed
de novo. United States v. Inabinette, 66 M.J. 320, 322
(C.A.A.F. 2008). Issues not raised at trial are reviewed for
7 By citing a maximum confinement penalty of eight years,
the AFCCA excluded the two other possible maximum confine-
ment sentences for aggravated assault with a dangerous
weapon. See MCM pt. IV, para. 77.d.(3)(a) (2019 ed.) (stating
that the maximum confinement sentence for aggravated assault
with a dangerous weapon is eight years if the dangerous weapon
is a loaded firearm; five years if the victim is a child that is less
than sixteen years old, intimate partner, or family member; and
three years in all other cases).
10
United States v. Cole, No. 23-0162/AF
Opinion of the Court
plain error, so long as they are not waived. 8 United States
v. Day, 83 M.J. 53, 57 (C.A.A.F. 2022); United States v.
Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009). “To prevail [on
plain error review], Appellant bears the burden of estab-
lishing (1) error, (2) that is clear or obvious, and (3) results
in material prejudice to a substantial right of the accused.”
United States v. Bodoh, 78 M.J. 231, 236 (C.A.A.F. 2019)
(citation omitted).
When a forfeited error is nonconstitutional, the appel-
lant must show that the error results in material prejudice
to the substantial rights of the accused. United States v.
Palacios Cueto, 82 M.J. 323, 334 (C.A.A.F. 2022). In the
context of a sentencing error, “the test for prejudice is
whether the error substantially influenced the adjudged
sentence.” United States v. Edwards, 82 M.J. 239, 246
(C.A.A.F. 2022) (internal quotation marks omitted) (cita-
tion omitted). If the forfeited error is constitutional in na-
ture, then “ ‘material prejudice’ is assessed using the
‘harmless beyond a reasonable doubt’ standard set out in
Chapman v. California, 386 U.S. 18 (1967).” United States
v. Tovarchavez, 78 M.J. 458, 460 (C.A.A.F. 2019) (citing
United States v. Jones, 78 M.J. 37, 45 (C.A.A.F. 2018)); see
also United States v. Sweeney, 70 M.J. 296, 304 (C.A.A.F.
2011); United States v. Harcrow, 66 M.J. 154, 160 (C.A.A.F.
2008). 9 For such errors, “the burden [is on] the government
to ‘show that the error was harmless beyond a reasonable
doubt.’ ” Hasan, 84 M.J. at 220 (quoting Tovarchavez, 78
M.J. at 462 n.6). In this case, the parties dispute whether
8 The issue before this Court arguably was waived because it
was not raised at trial and Appellant’s plea agreement contained
a provision waiving all waivable motions. However, the AFCCA
specified the issue for review and neither party contends to this
Court that the issue was waived. Therefore, we treat the issue
as forfeited and review for plain error.
9 This applies to nonstructural constitutional errors. Struc-
tural constitutional errors generally warrant automatic rever-
sal. United States v. Hasan, 84 M.J. 181, 206 (C.A.A.F. 2024).
Neither party contends to this Court that any error in this case
is a structural constitutional error.
11
United States v. Cole, No. 23-0162/AF
Opinion of the Court
the military judge erred in a constitutional or nonconstitu-
tional nature. We need not settle that debate because even
assuming without deciding that there was nonconstitu-
tional error, we hold that the military judge’s misappre-
hension materially prejudiced Appellant’s substantial
rights.
V. Discussion
In imposing a sentence, military judges are required to
consider “the nature and circumstances of the offense.”
Rule for Courts-Martial (R.C.M.) 1002(f)(1) (2019 ed.). Ad-
ditionally, they must take into account the need for the sen-
tence to “reflect the seriousness of the offense” and “provide
just punishment for the offense.” R.C.M. 1002(f)(3)(A)-(C)
(2019 ed.). In determining a sentence, the military judge
may consider any evidence that the military judge admit-
ted during presentencing and findings. R.C.M. 1002(g)
(2019 ed.).
In this case, the military judge erroneously told Appel-
lant that Specification 2 of Charge II was for an assault
consummated by battery. Additionally, the military judge
erred in telling Appellant that Specification 2 of Charge II
required that he “intended to do bodily harm” and used “a
dangerous weapon.” Finally, the military judge erred in de-
fining these terms and then questioning Appellant about
whether he considered the unloaded firearm a “dangerous
weapon” and whether he agreed that pointing it at A1C
RL’s head under the circumstances constituted bodily
harm.
These errors reflect the military judge’s misapprehen-
sion of the nature of the offense to which Appellant agreed
to plead guilty to for Specification 2 of Charge II. First,
Specification 2 of Charge II was not for an assault consum-
mated by a battery; it was for a simple assault with an un-
loaded firearm. Second, use of a dangerous weapon is not
an element of the offense of simple assault with an un-
loaded firearm, and even if it was, an unloaded firearm as
used in this case is not a dangerous weapon because there
is no indication that it was “used in a manner capable of
12
United States v. Cole, No. 23-0162/AF
Opinion of the Court
inflicting death or grievous bodily harm.” MCM pt. IV,
para. 77.c.(5)(a)(iii) (2019 ed.); see also United States v.
Bousman, No. ACM 40174, 2023 CCA LEXIS 66, at *29,
2023 WL 1816930, at *7 (A.F. Ct. Crim. App. Feb. 8, 2023)
(unpublished) (finding that an unloaded firearm was not a
dangerous weapon because “[t]he evidence does not indi-
cate Appellant used or threatened to use the gun in a man-
ner that would have constituted a dangerous weapon if it
was unloaded, for example as a club”). 10 It was likewise im-
proper for the military judge to ask Appellant whether
pointing the gun at A1C RL did bodily harm to her and im-
plying that Appellant intended to do her bodily harm. Ac-
tually causing bodily harm is not an element of a simple
assault with an unloaded firearm as charged in this case,
and unlike aggravated assault, there is no requirement to
show a specific intent to inflict bodily harm. See MCM pt.
IV, para. 77.c.(2)(b)(ii) (2019 ed.).
Specification 2 of Charge II alleged that Appellant com-
mitted a simple assault with an unloaded firearm; Appel-
lant offered to plead guilty to simple assault with an un-
loaded firearm; and Appellant admitted that he was guilty
of a simple assault with an unloaded firearm. However, the
military judge advised Appellant that in pleading guilty to
Specification 2 of Charge II he was pleading guilty to an
assault consummated by battery; provided Appellant with
elements and definitions applicable to aggravated assault
with a dangerous weapon; and questioned Appellant about
the elements of aggravated assault with a dangerous
weapon. In doing so, the military judge failed to correctly
“inform the accused of, and determine that the accused un-
derstands, . . . [t]he nature of the offense to which the plea
is offered.” R.C.M. 910(c)(1) (2019 ed.). He then sentenced
Appellant based on the same misapprehension of the na-
ture and elements of the charged offense—he erroneously
believed that Specification 2 of Charge II required proof
that Appellant used a dangerous weapon with the intent to
10 Additionally, the Government concedes that the unloaded
firearm in this case is not a dangerous weapon.
13
United States v. Cole, No. 23-0162/AF
Opinion of the Court
inflict bodily harm. This error materially prejudiced Appel-
lant’s substantial right to be sentenced for the correct of-
fense based on a consideration of the nature, circum-
stances, and seriousness of the offense. See R.C.M. 1002(f)
(2019 ed.).
We reject as clearly erroneous the AFCCA’s finding 11
that “[t]he record does not indicate that the military judge
considered extra aggravating factors during sentencing.”
Cole, 2023 CCA LEXIS 118, at *55, 2023 WL 2365322, at
*19. According to the AFCCA, the military judge knew that
the weapon used by Appellant was not a dangerous weapon
because it was unloaded, and thus the military judge knew
that it could not inflict death or grievous bodily harm. Id.
at *55, 2023 WL 2365322, at *19. Even though the military
judge understood that the firearm was unloaded, his ques-
tions to Appellant indicate that he still believed it was a
dangerous weapon. Additionally, the military judge im-
properly advised Appellant that he “must have intended to
do the bodily harm.” (Emphasis added.) Then the military
judge elicited Appellant’s agreement that his actions met
this higher intent standard than what is required for the
offer-type simple assault charged in Specification 2 of
Charge II. 12 In requiring Appellant to testify that he used
a dangerous weapon and intended to do bodily harm, the
military judge amplified both the means and the intent be-
yond what was required for the offense alleged in Specifi-
cation 2 of Charge II.
11 “We will not overturn findings of fact by a Court of Crimi-
nal Appeals unless they are clearly erroneous or unsupported by
the record.” United States v. Tollinchi, 54 M.J. 80, 82 (C.A.A.F.
2000) (citing United States v. Avery, 40 M.J. 325, 328 (C.M.A.
1994)).
12 A simple assault is “[a]n offer-type assault [when there] is
an unlawful demonstration of violence, either by an intentional
or by a culpably negligent act or omission, which creates in the
mind of another a reasonable apprehension of receiving immedi-
ate bodily harm. Specific intent to inflict bodily harm is not re-
quired.” MCM pt. IV, para. 77.c.(2)(b)(ii) (2019 ed.).
14
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Opinion of the Court
The military judge’s calculation of the maximum per-
missible sentence to confinement does not demonstrate the
military judge properly sentenced Appellant for Specifica-
tion 2 of Charge II. According to the AFCCA, the calcula-
tion of six years and six months for all three of Appellant’s
guilty plea offenses is “well below the maximum period of
eight years solely for the offense of aggravated assault.”
Cole, 2023 CCA LEXIS 118, at *57, 2023 WL 2365322, at
*19. However, for an aggravated assault with a dangerous
weapon, the maximum confinement sentence would only be
eight years if the dangerous weapon was a loaded firearm.
MCM pt. IV, para. 77.d.(3)(a)(i) (2019 ed.). The maximum
confinement sentence for aggravated assault with a dan-
gerous weapon is five years if the victim is a child that is
less than sixteen years old, intimate partner, or family
member of the accused, id. at para. 77.d.(3)(a)(ii), and is
three years in all other cases, id. at para. 77.d.(3)(a)(iii).
The three years in all other cases is the same as the maxi-
mum confinement for a simple assault with an unloaded
firearm. See id. at para. 77.d.(1)(b).
“Military judges are presumed to know the law and to
follow it absent clear evidence to the contrary.” United
States v. Erickson, 65 M.J. 221, 225 (C.A.A.F. 2007) (cita-
tion omitted). Here, there is clear evidence from the mili-
tary judge’s errors regarding Specification 2 of Charge II
that he did not know the applicable law, and thus any pre-
sumption that he knew and followed the law is lost. The
record does not reflect how the military judge calculated
the maximum confinement sentence for the offenses to
which Appellant agreed to plead guilty. 13 In light of his
questions indicating he believed the unloaded firearm was
nevertheless a dangerous weapon and that there was a re-
quirement for an intent to commit bodily harm, it is
13 The military judge stated, “I did look through the appendix
to the Manual for Courts-Martial and I do agree with counsel on
the maximum punishment they had already agreed to.” Trial
counsel and trial defense counsel agreed that the maximum con-
finement sentence for the offenses that Appellant agreed to
plead guilty to was six years and six months.
15
United States v. Cole, No. 23-0162/AF
Opinion of the Court
unclear whether he sentenced Appellant for an aggravated
assault with a dangerous weapon or a simple assault with
an unloaded firearm.
We are unpersuaded that the military judge reviewing
the stipulation of fact demonstrates that the military judge
sentenced Appellant appropriately for Specification 2 of
Charge II. The heading in the stipulation of fact related to
Specification 2 of Charge II states, “Assault with an Un-
loaded Firearm (Article 128, UCMJ)” but does not specify
whether Appellant was pleading guilty to a simple or ag-
gravated assault. Also, although the stipulation of fact in-
dicates that the firearm Appellant used related to Specifi-
cation 2 of Charge II was unloaded, it does not indicate that
the firearm was not a dangerous weapon. Moreover, the
fact that the statement of trial results and the entry of
judgment reflect the correct offense code for simple assault
with an unloaded firearm does not lead us to conclude that
the military judge understood the nature and elements of
the offense alleged in Specification 2 of Charge II. Based on
the military judge’s errors during the providence inquiry,
we are unable to presume that he knew and followed the
applicable law.
Finally, we conclude that there was material prejudice
to Appellant’s substantial rights even if there was suffi-
cient evidence to support a confinement sentence of six
months for Specification 2 of Charge II. The mere possibil-
ity that the military judge could have arrived at the same
sentence absent the errors he made related to Specification
2 of Charge II does not convince us that he was not swayed
by the errors to Appellant’s prejudice. 14 In Kotteakos v.
United States, the Supreme Court stated:
14 “[A]ny amount of actual jail time is significant, and ha[s]
exceptionally severe consequences for the incarcerated individ-
ual [and] for society which bears the direct and indirect costs of
incarceration.” Rosales-Mireles v. United States, 585 U.S. 129,
139 (2018) (alterations in original) (internal quotation marks
omitted) (citations omitted).
16
United States v. Cole, No. 23-0162/AF
Opinion of the Court
[I]f one cannot say, with fair assurance, after pon-
dering all that happened without stripping the er-
roneous action from the whole, that the judgment
was not substantially swayed by the error, it is im-
possible to conclude that substantial rights were
not affected. The inquiry cannot be merely
whether there was enough to support the result,
apart from the phrase affected by the error. It is
rather, even so, whether the error itself had sub-
stantial influence.
328 U.S. 750, 765 (1946). In this case, the military judge’s
erroneous view of the elements of the offense may have led
him to sentence Appellant for the offense of aggravated as-
sault with a dangerous weapon, an offense for which Ap-
pellant was not found guilty. Based on the military judge
mislabeling the offense for Specification 2 of Charge II and
his misapprehension of the elements of the offense for
Specification 2 of Charge II, it “cannot [be] sa[id], with fair
assurance . . . that the judgment was not substantially
swayed by the error, [and thus] it is impossible to conclude
that substantial rights were not affected.” Id.VI. Conclusion
The decision of the United States Air Force Court of
Criminal Appeals is affirmed as to the findings but re-
versed as to the sentence. The record of trial is returned to
the Judge Advocate General of the Air Force for remand to
the United States Air Force Court of Criminal Appeals to
reassess the sentence or to order a rehearing on the sen-
tence, as appropriate. Thereafter, Article 67, UCMJ, 10
U.S.C. § 867 (2018), shall apply.
17