United States v. Williams ( 2022 )

This opinion is subject to administrative correction before final disposition.
Before
HOLIFIELD, STEWART, and HACKEL
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Travonte D. WILLIAMS
Private First Class (E-2), U.S. Marine Corps
Appellant
No. 202100094
_________________________
Decided: 5 October 2022
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges:
K. Scott Woodard (motions)
Kyle G. Phillips (arraignment and trial)
Sentence adjudged 10 December 2020 by a general court-martial con-
vened at Marine Corps Base Camp Lejeune, North Carolina, consisting
of officer and enlisted members. Sentence in the Entry of Judgment:
reduction to E-1, confinement for 11 years, forfeiture of all pay and al-
lowances, and a dishonorable discharge. 1
For Appellant:
Major Mary Claire Finnen, USMC
1 Appellant was credited with having served 377 days of pretrial confinement.
United States v. Williams, NMCCA No. 202100094
Opinion of the Court
For Appellee:
Captain Tyler W. Blair, USMC
Lieutenant Gregory A. Rustico, JAGC, USN
Senior Judge STEWART delivered the opinion of the Court, in which
Chief Judge HOLIFIELD and Judge HACKEL joined.
_________________________
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under
NMCCA Rule of Appellate Procedure 30.2.
_________________________
STEWART, Senior Judge:
Appellant was convicted, contrary to his pleas, of one specification of sexual
assault, one specification of abusive sexual contact, one specification of assault
consummated by a battery, and one specification of assault, in violation of Ar-
ticles 120 and 128, Uniform Code of Military Justice [UCMJ], 2 for sexually as-
saulting Ms. Washington, touching the buttocks of Lance Corporal [LCpl]
Whiskey, striking Ms. Michaels on the head with his hand, and holding a knife
to the face and neck of Ms. Washington. 3
Appellant asserts nine assignments of error [AOEs], which we combine and
renumber as follows: (1) Appellant’s convictions for sexual assault and abusive
sexual contact are legally and factually insufficient; (2) Appellant’s convictions
for assault and assault consummated by a battery are factually insufficient; (3)
Appellant received ineffective assistance of counsel; (4) trial counsel committed
misconduct by repeatedly misstating the evidence in closing arguments, as
well as improperly using propensity evidence; (5) the military judge abused his
discretion when he admitted Appellant’s brig observational and disciplinary
reports into evidence; and (6) Appellant’s right to a unanimous verdict was
violated. 4 We find no prejudicial error and affirm.
2 10 U.S.C. §§ 920, 928.
3 All names in this in this opinion other than Appellant, the judges, and appellate
counsel are pseudonyms.
4 We find Appellant’s sixth AOE lacks merit. See United States v. Causey, 82 M.J.
574, 586-87 (N-M Ct. Crim App. 2022) (declining to extend the holding in Ramos v.
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I. BACKGROUND
Appellant was convicted of offenses against multiple victims, all of which
occurred during 2019.
1. Abusive Sexual Contact of LCpl Whiskey
In February, 2019, Appellant and LCpl Whiskey were living in the same
barracks. According to LCpl Whiskey, the two were not friends. However, she
agreed to go skating with Appellant because no one else wanted to go. When
Appellant tried to pay for her admission to the skating rink, LCpl Whiskey told
him that it was not a date and paid for herself. During their time at the skating
rink, Appellant attempted to put his arm around LCpl Whiskey, but she
brushed it off.
After sharing a taxi back to the barracks, Appellant walked LCpl Whiskey
to her room. He left, but returned and asked for a goodnight hug. They hugged
goodnight and, while hugging her, Appellant grabbed LCpl Whiskey’s buttocks
without her consent. She immediately moved him out of her room and closed
the door. She did not report the incident immediately, but revealed what had
happened three months later when she was interviewed concerning Appel-
lant’s conduct involving another victim.
2. Sexual Assault and Assault of Ms. Washington
During the summer of 2019, Appellant met Ms. Washington through a mo-
bile phone software application called Monkey. After chatting for a few weeks,
Ms. Washington and Appellant agreed to meet. Appellant drove to Ms. Wash-
ington's home and the two of them watched television in her bedroom and
kissed. Appellant offered to give Ms. Washington a back massage because she
had muscle damage in her back and Ms. Washington agreed. She lay down on
her stomach and Appellant began massaging her. He then proceeded to pull
down Ms. Washington’s shorts and underwear. She asked him why he was do-
ing that and explained that only her back hurt. Appellant then held Ms. Wash-
ington’s wrists and penetrated her vagina with his penis. Ms. Washington
struggled to get up, and Appellant stopped and got off the bed. She got off the
bed and pulled her shorts back up, then told Appellant he needed to leave. Ms.
Washington walked Appellant to his car and watched him drive away. She
then took a shower, sat in bed, and cried. She did not immediately report the
assault to law enforcement, but she told her sister what had happened and had
Louisiana, 140 S.Ct. 1390 (2020), to courts-martial). United States v. Matias, 25 M.J.
356 (C.M.A. 1987).
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her sister drive her to the store to purchase a morning-after emergency contra-
ception pill.
Approximately one month later Appellant returned to the house to talk to
Ms. Washington. Appellant asked if they could talk in her bedroom, but Ms.
Washington insisted they talk outside where her Ring security system would
record everything. 5 Appellant and Ms. Washington talked for a few minutes
before Appellant brandished a pocketknife and held it up to Ms. Washington's
face. Appellant pulled her closer to his car, holding the knife against her. While
holding the knife against her face he asked, “what if [I] cut [you] here?” He
then he moved the knife down to her neck and asked, “what if [I] cut [you] here,
too?” 6 Appellant put the knife away, blocked her from entering the door to her
home and then, after several failed attempts, forced Ms. Washington into the
back seat of his car. Ms. Washington struggled with Appellant and eventually
got out of the back seat. Appellant then told to Ms. Washington that he may
have given her a sexually transmitted disease. Ms. Washington ran off and
Appellant drove away. Appellant then called Ms. Washington and told her she
should get tested. At this point Ms. Washington called the police to report Ap-
pellant’s actions.
3. Assault of Ms. Michaels
In November of 2019, Ms. Michaels met Appellant via a software applica-
tion called MeetMe. After talking, Appellant and Ms. Michaels agreed to meet
and go out to eat. Appellant picked up Ms. Michaels near her house, but instead
of driving to a restaurant he drove her to a secluded area and parked off the
road. Appellant asked Ms. Michaels what they were about to do, to which she
replied “You can take me home.” 7 Appellant attempted to persuade Ms.
Michaels to have sex with him, but she was adamant that she was not inter-
ested.
While they continued to sit in his car, Appellant became angry that Ms.
Michaels was on her phone and attempted to take it from her. He pulled her
hair and hit her in the face. Appellant then took the phone from Ms. Michaels,
but gave it back when she threatened to use mace on him. Appellant then
snatched the mace out of her hand and threatened to mace her if she did not
get into the back seat. Ms. Michaels got into the back seat with Appellant, but
remained adamant that she was not going to have sex with him. Appellant
5 Pros. Ex. 9. The ring video did not capture Appellant’s actions as the front porch
pillar obscures Appellant and Ms. Washington as they approached his car.
6 R. 669.
7 R. 548.
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again became violent and tried to pull Ms. Michaels toward him. She fought
back and was able to get out of the car. She screamed for help and ran toward
the road, where, after a few minutes, she was able to flag down two police of-
ficers. Appellant sped away once Ms. Michaels left the car.
Ms. Michaels suffered a split lip from Appellant’s attack. She immediately
reported the incident to law enforcement.
Additional facts necessary to address the AOEs are provided below.
II. DISCUSSION
A. Appellant’s Convictions are Legally and Factually Sufficient
Appellant asserts the evidence is legally and factually insufficient to sup-
port his convictions for sexual assault and abusive sexual contact. He asserts
that the evidence is factually insufficient to support his convictions for assault
consummated by a battery and simple assault. 8 We review such questions de
novo. 9
To determine legal sufficiency, we ask whether, “considering the evidence
in the light most favorable to the prosecution, a reasonable fact-finder could
have found all the essential elements beyond a reasonable doubt.” 10 In conduct-
ing this analysis, we must “draw every reasonable inference from the evidence
of record in favor of the prosecution.” 11
In evaluating factual sufficiency, we determine “whether, after weighing
the evidence in the record of trial and making allowances for not having per-
sonally observed the witnesses, [we] are . . . convinced of the [appellant’s] guilt
beyond a reasonable doubt.” 12 In conducting this unique appellate function, we
take “a fresh, impartial look at the evidence,” applying “neither a presumption
8 Although Appellant does not challenge the legal sufficiency of his convictions for
assault consummated by a battery and simple assault we nevertheless review the legal
sufficiency of every offense in accordance with our mandate under Article 66, UCMJ.
9 Article 66(d)(1), UCMJ; United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002).
10 United States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987) (citing Jackson v. Vir-
ginia, 443 U.S. 307, 319 (1979)).
11 United States v. Gutierrez, 74 M.J. 61, 65 (C.A.A.F. 2015) (citation and internal
quotation marks omitted).
12 Turner, 25 M.J. at 325.
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of innocence nor a presumption of guilt” to “make [our] own independent de-
termination as to whether the evidence constitutes proof of each required ele-
ment beyond a reasonable doubt.” 13 Proof beyond a “[r]easonable doubt, how-
ever, does not mean the evidence must be free from conflict.” 14
1. Sexual Assault and Simple Assault
Appellant was found guilty of sexually assaulting Ms. Washington on or
about 16 July 2019, for committing a sexual act upon Ms. Washington by pen-
etrating her vulva with his penis without her consent. He was additionally
found guilty of simple assault against Ms. Washington on or about 15 August
2019 for holding a knife to her face and neck.
To prove sexual assault as charged, the Government was required to prove
that: (1) Appellant committed a sexual act upon Ms. Washington by causing
penetration, however slight, of the vulva by the penis; and (2) he did so without
Ms. Washington’s consent. 15
To prove simple assault as charged, the Government was required to prove
that: (1) Appellant attempted to do or offered to do bodily harm to Ms. Wash-
ington; (2) the attempt or offer was done unlawfully; and (3) the attempt or
offer was done with force or violence. 16
Ms. Washington testified that Appellant penetrated her vulva with his pe-
nis, and that he did so without her consent. Ms. Washington further testified
that Appellant grabbed her and brandished a pocket knife, holding the knife
against her face and neck and asking “what if [I] cut [you] here?” 17
2. Abusive Sexual Contact
Appellant was convicted of abusive sexual contact upon LCpl Whiskey be-
tween on or about 1 February 2019 and 28 February 2019, by touching her
buttocks without her consent and with the intent to arouse his sexual desire.
To prove the offense as charged, the Government was required to prove
that: (1) Appellant committed sexual contact upon LCpl Whiskey by touching
13 Washington, 57 M.J. at 399.
14 United States v. Rankin, 63 M.J. 552, 557 (N-M. Ct. Crim. App. 2006).
15 Art. 120, UCMJ.
16 Art. 128, UCMJ.
17 R. at 669.
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her buttocks with his hand with the intent to gratify or arouse his sexual de-
sire; and (2) he did so without LCpl Whiskey’s consent. 18 “Intent can be shown
by circumstantial evidence.” 19
Lance Corporal Whiskey testified that there was no romantic relationship
between her and Appellant. She agreed to go ice-skating with him because no
one else was willing to go, but she was clear that it was not a date. She further
testified that after getting back to the barracks, Appellant hugged her good-
night and grabbed her buttocks without her consent. Appellant’s actions of
grabbing LCpl Whiskey’s buttocks, as well as his earlier attempt to put his arm
around her at the skating rink, provide circumstantial evidence that the grab-
bing was done with the intent to arouse his sexual desire.
3. Assault Consummated by a Battery
Appellant was found guilty of assaulting Ms. Michaels by striking her in
the head with his hand.
To prove the offense as charged, the Government was required to prove
that: (1) Appellant did bodily harm to Ms. Michaels by striking her in the head
with his hand; (2) the bodily harm was done unlawfully; and (3) the bodily
harm was done with force or violence. 20 Bodily harm means “an offensive
touching of another, however slight.” 21
Ms. Michaels testified that Appellant drove her to a secluded area, where
he attempted to persuade her to have sex. Appellant became angry when Ms.
Michaels was on her phone and attempted to take it away from her. She testi-
fied that when he tried to take her phone Appellant pulled her hair and struck
her in the head with his hand.
4. Appellant’s Convictions are Legally and Factually Sufficient
After weighing the evidence in the record of trial, and making every rea-
sonable inference in favor of the prosecution, we are satisfied a reasonable fact-
finder could have found all the essential elements of each charge and specifi-
cation beyond a reasonable doubt and are legally sufficient to support Appel-
lant’s convictions. Furthermore, after weighing the evidence in the record of
trial and making allowances for not having personally observed the witnesses,
18 Art. 120, UCMJ.
19 United States v. Acevedo, 77 M.J. 185, 189 (C.A.A.F. 2018).
20 Art. 128, UCMJ.
21Manual for Courts-Martial, United States, (2019 Ed.), pt. IV, para 77(c)(1)(a) at
IV-118.
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we are convinced of Appellant’s guilt beyond a reasonable doubt and find that
the evidence is factually sufficient to support Appellant’s convictions.
B. Trial Defense Counsel were Not Ineffective
Appellant asserts that his trial defense counsel were ineffective for failing
to move to suppress the statement Appellant made to law enforcement and for
failing to object to portions of trial counsel’s closing, rebuttal, and sentencing
arguments.
We review claims of ineffective assistance of counsel de novo. 22 To prevail
on such a claim, “an appellant must demonstrate both (1) that his counsel’s
performance was deficient, and (2) that this deficiency resulted in prejudice.” 23
The appellant bears the “burden of establishing the truth of factual matters
relevant to the claim.” 24 Only after an appellant has met his burden and has
demonstrated both deficiency and prejudice can we find in the appellant’s favor
on an ineffective assistance of counsel claim. 25
To establish the element of deficiency, an appellant must first overcome “a
strong presumption that counsel’s conduct falls within the wide range of rea-
sonable professional assistance.” 26 A military appellate court “will not second-
guess the strategic or tactical decisions made at trial by defense counsel.” 27 If
an appellant raises the issue of ineffective assistance of counsel based upon a
challenge against the trial strategy or tactics of the defense counsel, “the ap-
pellant must show specific defects in counsel’s performance that were ‘unrea-
sonable under prevailing professional norms.’” 28 Only after an appellant has
met his burden and has demonstrated both deficiency and prejudice can we
22 United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009); United States v.
Cooper, 80 M.J. 664, 672 (N-M. Ct. Crim. App. 2020).
23United States v. Green, 68 M.J. 360, 361-62 (C.A.A.F. 2010) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)) (other citation omitted).
24 Denedo v. United States, 66 M.J. 114, 128 (C.A.A.F. 2008).
25 Cooper, 80 M.J. at 672.
26 United States v. Scott, 81 M.J. 79, 84 (C.A.A.F. 2021) (quoting Strickland, 466
U.S. at 489).
27 United States v. Anderson, 55 M.J. 198, 201 (C.A.A.F. 2001) (quoting United
States v. Morgan, 37 M.J. 407, 410 (C.M.A. 1993)).
28 Mazza, 67 M.J. at 475 (quoting United States v. Perez, 64 M.J. 239, 243 (C.A.A.F.
2006)) (cleaned up).
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find in the appellant’s favor on an ineffective assistance of counsel claim. 29
Strategic decisions to accept or forgo a potential benefit are not deficient when
the decisions are objectively reasonable. 30 Furthermore, “it is not necessary to
decide the issue of deficient performance when it is apparent that the alleged
deficiency has not caused prejudice.” 31
1. Trial Defense Counsels’ tactical decision not to challenge Appellant’s
statement was reasonable
“[W]hen a claim of ineffective assistance of counsel is premised on counsel’s
failure to make a motion . . . an appellant must show that there is a reasonable
probability that such a motion would have been meritorious.” 32 In this regard,
the term “meritorious” is synonymous with “successful.” 33 “[T]he decisional is-
sue is whether Appellant has carried his burden to show that his counsel would
have been successful if he filed a timely motion.” 34
Appellant argues that his statements made to law enforcement during his
interrogation by Detective Lima of the New Hanover County Sheriff’s Office
should have been suppressed because Appellant was not advised of his rights
under Article 31(b), UCMJ, before being questioned.
According to Article 31(b), UCMJ,
No person subject to this chapter may interro-
gate, or request any statement from an accused or
a person suspected of an offense without first in-
forming him of the nature of the accusation and
advising him that he does not have to make any
statement regarding the offense of which he is ac-
cused or suspected and that any statement made
29 Cooper, 80 M.J. at 672.
30 United States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012).
31 United States v. Bradley, 71 M.J. 13, 16 (C.A.A.F. 2012). See also, Strickland,
466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice . . . that course should be followed.”).
32United States v. Jameson, 65 M.J. 160, 163-64 (C.A.A.F. 2007) (quoting United
States v. McConnell, 55 M.J. 479, 482 (C.A.A.F 2001) (motion to suppress evidence)).
33 Id. at 164.
34 Id.
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by him may be used as evidence against him in a
trial by court-martial. 35
Additionally, under Military Rule of Evidence [Mil. R. Evid.] 305, “person
subject to the code” includes “a knowing agent of any such person.” 36 Our su-
perior Court has explained that there are at least two scenarios in which civil-
ian law enforcement officers such as Detective Lima working with military in-
vestigators must comply with Article 31(b): “(1) When the scope and character
of the cooperative efforts demonstrate ‘that the two investigations merged into
an indivisible entity’ and (2) when the civilian investigator acts in furtherance
of any military investigation, or in any sense as an instrument of the mili-
tary.” 37
In this case, Appellant was interrogated by Detective Lima while Special
Agent [SA] Simmons of the Naval Criminal Investigative Service [NCIS] was
in the room observing the interrogation. Appellant was read his Miranda
rights by Detective Lima before questioning but was not given specific warn-
ings under Art. 31(b). 38 When Detective Lima concluded his interview, SA Sim-
mons conducted his own interrogation after advising Appellant of his 31(b)
warnings. Prior to interrogating Appellant, Detective Lima had discovered
through several law enforcement databases that NCIS was also separately in-
vestigating Appellant on multiple allegations of sexual assault. He spoke with
another NCIS agent, SA Franks, multiple times to coordinate an interview
with Appellant. He met with SA Franks the day before the interview and ex-
changed investigation reports with her as he continued investigating Ms.
Washington’s allegations.
In their declarations on the issue, trial defense counsel explained that they
discussed the possibility of moving to suppress Appellant’s statements but ul-
timately made a tactical decision not to do so because allowing the statements
into evidence was more beneficial to Appellant’s case than it was harmful. Spe-
cifically, trial defense counsel explained that the admissions made by Appel-
lant during the interrogation helped raise the argument that Ms. Washington
35 Art. 31(b), UCMJ.
36 Mil. R. Evid. 305(b)(1).
37 United States v. Brisbane, 63 M.J. 106, 111 (C.A.A.F. 2006) (internal quotations
and citations omitted).
38 Miranda v. Arizona, 384 U.S. 436 (1966).
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only made her allegation of sexual assault after Appellant informed her that
he may have given her a sexually transmitted disease. 39
Appellant has failed to demonstrate that trial defense counsels’ tactical de-
cision to allow his statements into evidence was “unreasonable under prevail-
ing professional norms.” 40 Even if we assume trial defense counsels’ decision
was unreasonable, Appellant has failed to show that a motion to suppress his
statements made to Detective Lima would have been meritorious. Although SA
Simmons was present during Detective Lima’s interrogation, the record does
not demonstrate that the two investigations merged into an indivisible entity,
nor that Detective Lima was acting in furtherance of any military investiga-
tion. During Detective Lima’s interrogation, SA Simmons remained a passive
bystander and did not question Appellant until he conducted his own interro-
gation later. Appellant argues that Detective Lima and SA Simmons discussed
the interrogation before Detective Lima asked Appellant additional questions.
However, this discussion does not demonstrate that Detective Lima’s addi-
tional questions were in furtherance of SA Simmons’s investigation. Indeed,
rather than have Detective Lima ask questions for him, SA Simmons con-
ducted his own interrogation of Appellant after Detective Lima had finished.
Because Appellant has failed to prove that trial defense counsel’s tactical
decision not to challenge the admission of his statements to Detective Lima
was unreasonable and has further failed to demonstrate that a motion to sup-
press those statements had a reasonable probability of success, he fails to show
that his trial defense counsel were ineffective for failing to file a motion to sup-
press based on the alleged violation of Article 31(b). Furthermore, even assum-
ing that a motion to suppress Appellant’s statements would have been success-
ful, we do not believe that the suppression of such evidence would have re-
sulted in a different result at trial as the weight of evidence rested with the
testimony of the victims. Moreover, the statement on its face permitted Appel-
lant to provide his account without being subjected to cross-examination. We
thus find that Appellant has failed to establish he was prejudiced by trial de-
fense counsels’ alleged error.
39Contrary to Appellant’s claim in his brief, his denial of sexual assault and later
admission that he returned at a later date to inform Ms. Washington that he may have
given her a sexually transmitted disease are not contradictory under these facts. Dur-
ing his interrogation, Appellant explained to Detective Lima that he kissed Ms. Wash-
ington and believed that he may have transmitted something to her while kissing. He
continued to deny that he ever engaged in sexual intercourse with Ms. Washington.
40 Mazza, 67 M.J. at 475 (internal citation and quotation omitted).
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2. Trial defense counsels’ tactical decision not to object to trial counsel’s
closing, rebuttal, and sentencing arguments was reasonable
Appellant argues that his trial defense counsel were ineffective for failing
to object during trial counsel’s closing, rebuttal, and sentencing arguments in
that trial counsel misstated Ms. Washington’s testimony by claiming that she
told Appellant “no” and “stop.” 41
Trial counsel argued,
The defense counsel focused on reasonable mis-
take of fact as to consent, meaning if he reasona-
bly believed she wanted to have sex then he’s not
guilty. Well, he may have believed that at some
point. But the second she said; no. Stop. What are
you doing? Trying to pull her shorts up; no. What
are you doing? Stop. The second she did that, that
defense is eliminated. And that’s what happened
in this case. 42
When Ms. Washington testified that, shortly after asking Appellant “what
are you doing?” and “why?” Appellant pinned her hands above her head while
she was still lying face down on the bed. Once Appellant inserted his penis into
Ms. Washington’s vagina against her will, she detailed how she “gritted her
teeth and tr[ied] to raise up,” as an attempt to get Appellant off of her. Ms.
Washington also testified that after she finally got Appellant off of her, he said
he was sorry in an attempt to make the situation die down. This illustrated
Appellant’s awareness and acknowledgement of his misconduct. Based on this
evidence, and civilian defense counsel’s affidavit, in which he stated he felt
trial counsel had struck “hard blows, but not foul blows,”43 trial counsel’s clos-
ing arguments relating to Ms. Washington telling Appellant “no” and “stop”
were not improper and were a reasonable characterization of her testimony
drawn from the evidence as a whole. 44
41 R. at 1184.
42 R. at 1184.
43 Aff. of civilian defense counsel, at 2 (quotations removed).
44 See United States v. Patrick, 78 M.J. 687 (N-M. Ct. Crim. App. 2018) (Trial coun-
sel did not commit misconduct but made “reasonable inferences from the evidence,”
when he claimed male DNA found inside the victim’s vagina proved the appellant pen-
etrated the victim. The Court looked at the totality of the DNA expert’s testimony to
“conclude the comments [were] not a misrepresentation.”)
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C. Trial counsel did not commit Misconduct
Appellant argues that trial counsel repeatedly misstated the evidence dur-
ing his closing and rebuttal arguments. Specifically: (1) that he improperly
argued propensity evidence to prove Appellant’s guilt; (2) that he improperly
commented on Appellant’s invocation of a constitutional right; (3) that he ma-
ligned Appellant’s counsel and argument; (4) that he impermissibly argued
that the members would be doing their “duty” and “doing justice” by convicting
Appellant; and, (5) that his sentencing argument was improper because he fo-
cused on “justice for the victims.”
“Improper argument is one facet of prosecutorial misconduct.” 45 Prosecuto-
rial misconduct occurs when trial counsel “oversteps the bounds of that propri-
ety and fairness which should characterize the conduct of such an officer in the
prosecution of a criminal offense.” 46 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 pro-
fessional ethics canon.” 47
The context of trial counsel’s comment is key. 48 Challenged argument is
reviewed not based “on words in isolation,” but “must be viewed within the
context of the entire court-martial.” 49 “When a trial counsel makes an improper
argument during findings, ‘reversal is warranted only when the trial counsel’s
comments taken as a whole were so damaging that we cannot be confident that
the members convicted the appellant on the basis of the evidence alone.’” 50
When the accused objects to an improper argument during his court-mar-
tial, we review the issue de novo. 51 In that de novo review, we determine
45 United States v. Sewell, 76 M.J. 14, 18 (C.A.A.F. 2017).
46 United States v. Fletcher, 62 M.J. 175, 178 (C.A.A.F. 2005) (quoting Berger v.
United States, 295 U.S. 78, 84, 55 (1935)).
47 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)).
48United States v. Carter, 61 M.J. 30, 33 (C.A.A.F. 2005) (“A prosecutorial comment
must be examined in light of its context within the entire court-martial”).
49United States v. Baer, 53 M.J. 235, 238 (C.A.A.F. 2000) (citing United States v.
Young, 470 U.S. 1, 16 (1985)) (internal quotation marks omitted).
50 United States v. Norwood, 81 M.J. 12, 19 (C.A.A.F. 2021) (quoting United States
v. Andrews, 77 M.J. at 393, 401-02 (C.A.A.F. 2018)).
51 United States v. Voorhees, 79 M.J. 5, 9 (C.A.A.F. 2019).
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whether any error materially prejudiced the appellant's substantial rights un-
der Article 59, UCMJ. 52 On the other hand, “where . . . no objection is made,
we review for plain error.” 53 “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.” 54 The burden of proof under a plain error
review is on the appellant, 55 and, “the lack of a defense objection is ‘some meas-
ure of the minimal impact of a prosecutor's improper comment.’” 56
1. Misstatement of the Evidence
Appellant argues that trial counsel committed error by repeatedly misstat-
ing the evidence, specifically, Ms. Washington’s testimony about what hap-
pened during the sexual assault. As stated above, we find trial counsel’s argu-
ments were not improper, but a reasonable characterization drawn from the
evidence as a whole. Even assuming trial counsel’s arguments did constitute
error, we find that the error was not plain or obvious, and that Appellant has
not demonstrated that his substantial rights were materially prejudiced.
2. Propensity Evidence
Appellant argues that trial counsel improperly argued propensity evidence.
During the trial counsel’s closing argument and rebuttal, civilian defense coun-
sel objected once, when trial counsel stated: “Members, there’s few things that
we know for absolute certainty in this world. One thing we do know, is that
lightning does not strike the same place five times.” 57 The military judge sus-
tained the objection and immediately instructed the members to disregard the
statement. Having considered trial counsel’s statement in the context of the
court-martial as a whole, we are convinced that the judge’s immediate instruc-
tion to the members to disregard the statement was sufficient to address the
52 10 U.S.C. § 859; Fletcher, 62 M.J. at 179.
53 Voorhees, 79 M.J. at 9 (citing Andrews, 77 M.J. at 398).
54 Fletcher, 62 M.J. at 179 (citation omitted).
55 See United States v. Bungert, 62 M.J. 346, 348 (C.A.A.F. 2006).
56 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)).
57 R. 1187.
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United States v. Williams, NMCCA No. 202100094
Opinion of the Court
improper argument. Further, we are confident that the members convicted Ap-
pellant based on the evidence alone and not due to the trial counsel’s improper
statement. 58
3. Appellant’s remaining allegations of error do not constitute plain error
We test Appellant’s remaining allegations for plain error because they were
not objected to at trial. Specifically, we review his assertions that trial counsel
improperly commented on Appellant’s invocation of a constitutional right, that
he maligned Appellant’s counsel and argument, that he impermissibly argued
that the members would be doing their “duty” and “doing justice” by convicting
Appellant, and that his sentencing argument was improper because he focused
on “justice for the victims.”
Having reviewed Appellant’s allegations and considering trial counsel’s ar-
guments in context of the court-martial as a whole, we are satisfied that trial
counsel did not engage in improper argument and there was no error. Trial
counsel’s arguments fell within the realm of professional norms expected of
officers of the court, were reasonable inferences of the evidence, fair responses
to the Defense closing argument, and refrained from commenting on Appel-
lant’s constitutional right to remain silent. Even assuming trial counsel’s ar-
guments did constitute error, we find that the error was not plain or obvious,
and that Appellant has not demonstrated that his substantial rights were ma-
terially prejudiced.
D. The Military Judge did not Abuse His Discretion in Admitting Ap-
pellant’s Brig Observation and Disciplinary Record
Appellant objected to the Government’s introduction of his brig observa-
tional and disciplinary reports in its sentencing case. Particularly, Appellant
takes issue with the Government’s assertion that the records are admissible
under Rule for Courts-Martial [R.C.M.] 1001(b)(2) by asserting they were per-
sonnel records, unduly prejudicial and inadmissible under Mil.R.Evid. 403 due
to the fact that the unadjudicated misconduct allegations would overshadow
the offenses for which he was found guilty. The military judge determined that
the DD 2713 (Prisoner Observation Report) and DD2714 (Prisoner Discipli-
nary Report/Action) were admissible under R.C.M. 1001(b)(2) (personal data
and character of prior service of the accused), but not R.C.M. 1001(b)(3) (evi-
58 We note that the members acquitted Appellant of seven out of eleven specifica-
tions of the charges he faced, which further convinces us that they were not improperly
influenced by trial counsel’s claim and evaluated each specification individually.
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United States v. Williams, NMCCA No. 202100094
Opinion of the Court
dence of prior convictions of the accused). He also ordered the synopsis of alle-
gations and narrative redacted in each of the DD 2713s and did not allow state-
ments appended to the records.
R.C.M. 1001(b)(2) permits trial counsel to submit evidence of the accused’s
“character of prior service” from “personnel records of the accused” which are
governed by “the regulations of the Secretary concerned.” 59 This includes “cop-
ies of reports reflecting the past military efficiency, conduct, performance, and
history of the accused and evidence of any disciplinary actions.” Per SECNAV
M-1640.1, brig observations reports “on DD 2713 provide a means of formally
documenting…minor infractions.” 60 Disciplinary reports on “DD 2714” docu-
ment “serious offenses” or “a pattern of unacceptable behavior such as a series
of documented minor infractions in a short time period.” 61 “Copies of all inves-
tigations and [disciplinary board] proceedings will become a part of the pris-
oner’s confinement record . . . [a] disciplinary log must be maintained to record
each [disciplinary report] . . . this log information will be populated within the
Correctional Management Information System.” 62
We review a military judge’s decision to admit sentencing evidence for an
abuse of discretion. 63 This standard of review “recognizes that a judge has a
range of choices and will not be reversed so long as the decision remains within
that range.” 64 Abuse of discretion is a strict standard, calling for more than a
mere difference of opinion; it must be arbitrary, fanciful, clearly unreasonable,
or clearly erroneous. 65
In United States v. Davis, our superior Court highlighted R.C.M.
1001(b)(2)’s simple definition that personnel records “include [ ] any records
made or maintained in accordance with departmental regulations that reflect
past military efficiency, conduct, performance, and history of the accused.” 66
59 R.C.M. 1001(b)(2).
60 SECNAV M-1640.1 § 5102.2.d (May 15, 2019)
61 Id. at § 5102.2.e.
62 Id. at § 5102.3.3.11
63 United States v. Stephens, 65 M.J. 233, 235 (C.A.A.F. 2009).
64 United States v. Gore, 60 M.J. 178, 187 (C.A.A.F. 2004).
65 United States v. White, 69 M.J. 237, 239 (C.A.A.F. 2010) (citations omitted).
66United States v. Davis, 44 M.J. 13, 20 (C.A.A.F. 1996) (citing United States v.
Vaughn, 3 C.M.A. 121, 124 (C.M.A. 1953) (“The commandant of a military disciplinary
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United States v. Williams, NMCCA No. 202100094
Opinion of the Court
Here, like in Davis, the military judge found that Appellant’s brig disciplinary
reports were personnel records in line with R.C.M. 1001(b)(2). Additionally, the
military judge appropriately limited the evidence by requiring trial counsel to
redact large portions of the reports he believed were inadmissible, which elim-
inated summaries of the alleged misconduct. 67
Deference is due to the military judge in this case. Any evidence admitted
under R.C.M. 1001(b)(2) is still subject to the balancing test of Mil. R. Evid.
403. 68 Courts give deference to a military judge who articulates the balancing
test on the record. 69 Here, the military judge admitted the evidence under
R.C.M. 1001(b)(2), appropriately limited the scope of the evidence, and evalu-
ated the evidence under Mil. R. Evid. 403 and placed his reasoning on the rec-
ord. 70 Consequently, we find the military judge did not abuse his discretion
when he admitted the Appellant’s brig observation and disciplinary record into
evidence.
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel, we
have determined that the findings and sentence are correct in law and fact and
that no error materially prejudicial to Appellant’s substantial rights oc-
curred. 71
The findings and sentence are AFFIRMED.
FOR THE COURT:
MARK K. JAMISON
Clerk of Court
barracks…is at the same time prison warden and the military commander set over the
men confined in his penal institution).
67 R. 1252-52. (Compare Pros. Ex. 10, with Appellate Ex. XXXIV).
68 United States v. Jerkins, 77 M.J. 225, 229 (C.A.A.F. 2018).
69 United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000); see also United States
v. Halfacre, 80 M.J. 656, 661-62 (N-M. Ct. Crim. App. 2020).
70 See Halfacre, 80 M.J. at 661-62.
71 Articles 59 & 66, UCMJ.
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