United States v. Kuhse

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39355
________________________
UNITED STATES
Appellee
v.
Corey A. KUHSE
Senior Airman (E-4), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 19 November 2018
________________________
Military Judge: L. Martin Powell.
Approved sentence: Dishonorable discharge, confinement for 6 months,
and reduction to E-1. Sentence adjudged 20 June 2017 by GCM con-
vened at Whiteman Air Force Base, Missouri.
For Appellant: Major Patrick J. Hughes, USAF; Captain Dustin J. Weis-
man, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant
Colonel G. Matt Osborn, USAF; Mary Ellen Payne, Esquire.
Before JOHNSON, DENNIS, and LEWIS, Appellate Military Judges.
Judge LEWIS delivered the opinion of the court, in which Senior Judge
JOHNSON and Judge DENNIS joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
________________________
LEWIS, Judge:
A military judge sitting as a general court-martial convicted Appellant, con-
trary to his pleas, of one specification of willful dereliction of duty by providing
United States v. Kuhse, No. ACM 39355
alcohol to a minor and three specifications of sexual assault of a child, in vio-
lation of Articles 92 and 120b, Uniform Code of Military Justice (UCMJ), 10
U.S.C. §§ 892, 920b. 1 All offenses involve CM, a 15-year-old female. The Article
120b offenses included Appellant penetrating CM’s vulva with his penis on di-
vers occasions, her mouth with his penis on divers occasions, and her vulva
with his tongue on one occasion. The military judge sentenced Appellant to a
dishonorable discharge, six months of confinement, and reduction to the grade
of E-1. The convening authority approved the adjudged sentence.
Appellant raises two issues for our consideration on appeal: (1) whether his
convictions are legally and factually sufficient; and (2) whether the conditions
of his post-trial confinement warrant relief. We find the evidence legally and
factually insufficient with respect to the Article 120b offenses involving pene-
tration of CM’s mouth with Appellant’s penis and penetration of her vulva with
his tongue, which we set aside and dismiss. Finding no other prejudicial error,
we affirm the remaining findings and reassess the sentence to a dishonorable
discharge, confinement for five months, and reduction to the grade of E-1.
I. BACKGROUND
Appellant first met CM through an online dating application in late May
2016. CM’s online profile showed her age as 20 years. At the time, CM and her
11-month-old son were staying at the home of CM’s mother’s best friend, DC.
Within days of meeting online, Appellant and CM decided to meet in person at
DC’s home. Appellant and CM had sexual intercourse the first day they met in
person at DC’s house.
After Appellant left DC’s house, DC learned that Appellant was 21 years
old. DC asked whether CM told Appellant she was 15 years old. CM admitted
that she lied about her age so DC insisted CM call Appellant on the phone and
reveal her true age. DC listened to the call on speakerphone so she could be
sure Appellant knew the truth. When Appellant learned CM was only 15 years
old, after a pause, he replied “okay.” CM asked Appellant whether it was going
to be a problem. Appellant stated, “We will talk about it later.”
Instead of ceasing his relationship with CM, by 9 June 2016, CM and her
11-month-old son temporarily moved into Appellant’s apartment in Warrens-
burg, Missouri. Appellant was already roommates with another couple, MB
1Appellant was acquitted of one specification of obstruction of justice, in violation of
Article 134, UCMJ, 10 U.S.C. § 934.
2
United States v. Kuhse, No. ACM 39355
and MO. MB and MO thought CM and her son would only stay at the apart-
ment for a weekend until CM could get a ride to her father’s house in Kansas
City, Missouri. CM told the roommates that she was 20 years old.
The same day CM began staying with Appellant, he obtained a six-pill pre-
scription for Viagra. 2 Over the next two weeks, Appellant’s two roommates
heard sexual noises, such as moaning from CM and banging on the wall, ema-
nating from Appellant’s room. The noises were so loud and repeated, MB could
not concentrate on her studies. MB and MO relocated to an empty bedroom,
further away from Appellant’s room, to get away from the noise generated by
Appellant and CM.
Also, during this same two-week period, MO witnessed CM drinking a
Mike’s Hard Lemonade in front of Appellant during dinner. At trial, MO testi-
fied Appellant provided CM with the alcoholic beverage.
Tensions in Appellant’s household worsened when MB thought CM stole
some of her makeup. CM denied it, and the two began arguing on social media.
A friend of MB saw one of the posts and informed MB that CM’s best friend
was only 14 years old. MB began searching online for information about CM
and quickly discovered CM was 15 years old. MB and MO called the Warrens-
burg police on 24 June 2016.
When two Warrensburg police officers arrived at the apartment, MB and
MO let them in and pointed them to Appellant’s bedroom door. Appellant an-
swered his door wearing only his boxer shorts. CM was asleep in the bed wear-
ing shorts and a bra. The police separated Appellant and CM for interviews.
After waiving his Miranda 3 rights, Appellant initially lied about CM’s age and
denied having sex with her. The police officer told Appellant to stop lying as he
already knew CM was 15 years old, and subsequently arrested him for statu-
tory rape.
While at the police station, Appellant admitted having sexual intercourse
with CM two or three times after he knew she was 15 years old. He also admit-
ted that he did not wear a condom when he had sexual intercourse with CM.
Two Warrensburg detectives conducted a second interview of Appellant on 27
June 2016. Appellant again admitted having vaginal intercourse with CM after
he knew she was 15 years old. Later that day, during a search of Appellant’s
2 Viagra is the brand name for the medication Sildenafil. A pharmacist who testified
at Appellant’s trial stated that medication is prescribed at Whiteman Air Force Base
to treat only one condition, erectile dysfunction.
3Miranda v. Arizona, 384 U.S. 436 (1966) (a person subject to custodial interrogation
must be given notice of rights to silence and to representation by counsel).
3
United States v. Kuhse, No. ACM 39355
apartment, Appellant admitted providing alcohol to CM. Eventually, the Air
Force exercised its concurrent jurisdiction to prosecute Appellant.
At trial, CM testified she had sexual intercourse with Appellant a few times
after he knew she was 15 years old. She explicitly testified that Appellant’s
penis penetrated her vagina. When asked about oral sex, CM did not remember
Appellant performing oral sex on her at all. She did recall performing oral sex
on him, and stated this happened both before and after she told him her true
age. CM was never asked to describe whether the “oral sex” she performed on
Appellant involved penetration of her mouth by his penis.
Detective MF testified to admissions made by Appellant during the second
interview. Detective MF recalled Appellant telling him that CM “performed
oral sex on [Appellant] twice, and [Appellant] performed oral sex on her once
after he knew that she was 15 in Warrensburg.” Detective TF, who was also
present for the second interview, testified similarly that Appellant admitted
CM “performed oral sex on [Appellant] a couple of times and [Appellant] per-
formed it on her once . . . [i]n his apartment, in Warrensburg.” Neither Detec-
tive MF nor Detective TF were asked during their testimony to describe
whether the “oral sex” involved penetration. 4
II. DISCUSSION
A. Legal and Factual Sufficiency
1. Additional Background
Appellant asserts the evidence is legally and factually insufficient for all
specifications of which he was convicted. 5 First, Appellant personally chal-
lenges the Article 120b, UCMJ, conviction for penetrating CM’s vulva with his
penis. Appellant invites us to consider the lack of physical evidence and to look
at “inconsistencies and biases in the adverse testimony against him . . . per-
taining to his roommates.” We disagree and find this specification legally and
factually sufficient.
4 The record of trial does not provide insight as to why the Prosecution did not have
the witnesses elaborate on the term “oral sex” when they did so for the term “sexual
intercourse.” Appellate Exhibit II, the Warrensburg police report of Detective TF, con-
tains further details on Appellant’s descriptions of the oral sex. For example, the report
clarifies that CM “suck[ed]” Appellant’s penis and Appellant “lick[ed]” CM’s vagina.
5 Appellant personally asserted the error with respect to the legal and factual suffi-
ciency of the specifications involving penetrating CM’s vulva with his penis and provid-
ing her alcohol pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
4
United States v. Kuhse, No. ACM 39355
Through his counsel, Appellant argues the testimony that “oral sex” oc-
curred, by itself, is insufficient to prove he violated Article 120b, UCMJ, by
penetrating CM’s mouth with his penis and penetrating CM’s vulva with his
tongue. We agree and detail our reasoning below for finding both of these spec-
ifications legally and factually insufficient.
Finally, Appellant personally challenges his willful dereliction of duty con-
viction for providing alcohol to a minor. Appellant asserts there was “zero
proof” he provided alcohol to CM other than he let CM in his apartment where
“3 adults over age 21 lived and drank responsibly.” We disagree and find this
specification legally and factual sufficient.
2. Law
We review issues of factual and legal sufficiency de novo. Article 66(c),
UCMJ, 10 U.S.C. § 866(c); United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002) (citation omitted).
The test for legal sufficiency is “whether, considering the evidence in the
light most favorable to the prosecution, a reasonable factfinder could have
found all the essential elements beyond a reasonable doubt.” United States v.
Turner, 25 M.J. 324, 324–25 (C.M.A. 1987) (citing Jackson v. Virginia, 443 U.S.
307, 319 (1979)). Importantly, “[t]he term reasonable doubt . . . 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), aff’d, 77 M.J. 289 (C.A.A.F. 2018) (citing
United States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986)). “In applying this
test, ‘we are bound to draw every reasonable inference from the evidence of
record in favor of the prosecution.’” Id. (quoting United States v. Barner, 56
M.J. 131, 134 (C.A.A.F. 2001)) (additional citation omitted).
Our assessment of legal and factual sufficiency is limited to the evidence
produced at trial. Id. (citing United States v. Dykes, 38 M.J. 270, 272 (C.M.A
1993)). “The test for a factual sufficiency review . . . is ‘whether, after weighing
the evidence in the record of trial and making allowances for not having per-
sonally observed the witnesses, the members of the service court are themselves
convinced of appellant’s guilt beyond a reasonable doubt.’” United States v. Ro-
sario, 76 M.J. 114, 117 (C.A.A.F. 2017) (quoting United States v. Oliver, 70 M.J.
64, 68 (C.A.A.F. 2011)); see also Turner, 25 M.J. at 325. “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). Just as with legal
sufficiency, “[t]he term reasonable doubt . . . does not mean that the evidence
must be free from conflict.” Id. (citing Lips, 22 M.J. at 684).
5
United States v. Kuhse, No. ACM 39355
Testimony describing that “oral sex” occurred does not, per se, prove pene-
tration for the offense of sodomy under Article 125, UCMJ. United States v.
Powell, 40 M.J. 768, 770 (A.F.C.M.R. 1994); United States v. Hansen, 36 M.J.
599, 608 (A.F.C.M.R. 1992).
3. Sexual Assault of a Child
Each of Appellant’s convictions for sexual assault of a child required proof
of three elements: (1) Appellant committed a sexual act upon CM; (2) at the
time of the sexual act, CM had attained the age of 12 years, but had not at-
tained the age of 16 years; and (3) the sexual act was done with the intent to
satisfy his sexual desire. 6 See Manual for Courts-Martial, United States (2016
ed.) (MCM), pt. IV, ¶ 45b.b.(3).
The sexual act charged in the first specification required proof Appellant’s
penis contacted CM’s vulva, on divers occasions. See id. ¶ 45b.b.(3)(a). Contact
occurs upon penetration, however slight. Articles 120b(h)(1) and 120(g)(1)(A),
UCMJ, 10 U.S.C. §§ 920b(h)(1), 920(g)(1)(A). The Government presented very
strong evidence for this specification. CM testified that Appellant penetrated
her vagina with his penis, a few times, after he knew she was 15 years old.
Appellant admitted to multiple members of the Warrensburg Police Depart-
ment that he had sexual intercourse with CM after he knew she was 15 years
old. Our review of the record of trial leaves us with no doubt Appellant intended
to satisfy his sexual desires each time he committed this offense. We considered
Appellant’s claims that a lack of physical evidence and biases of his roommates
affect the legal and factual sufficiency of this specification. We find Appellant’s
claims unpersuasive considering the compelling testimony of CM, DC, and the
admissions of Appellant to multiple members of the Warrensburg Police De-
partment. Drawing “every reasonable inference from the evidence of record in
favor of the prosecution,” the evidence is legally sufficient to support Appel-
lant’s conviction for sexual assault of a child by penetrating CM’s vulva with
his penis. Barner, 56 M.J. at 134. Moreover, having weighed the evidence in
the record of trial and having made allowances for not having personally ob-
served the witnesses, we are convinced of Appellant’s guilt of this offense of
sexual assault of a child beyond a reasonable doubt. See Turner, 25 M.J. at 325.
6 The Government included this element for all Article 120b, UCMJ, specifications
even though an intent element was only required for the specification involving pene-
tration of CM’s vulva with Appellant’s tongue. See MCM, pt. IV, ¶ 45b.b.(3)(b). Also,
the Government incorrectly used the term “satisfy” instead of “gratify.” Appellant did
not raise this discrepancy at trial or on appeal. As we find the specification of penetra-
tion of CM’s vulva with Appellant’s tongue legally and factually insufficient, we do not
address whether there was any error when the Government charged the word “satisfy”
instead of “gratify.”
6
United States v. Kuhse, No. ACM 39355
Appellant’s conviction under this specification is therefore both legally and fac-
tually sufficient.
The sexual act charged in the second specification required proof that Ap-
pellant contacted CM’s mouth with his penis, on divers occasions. See MCM,
pt. IV, ¶ 45b.b.(3)(a). As noted above, contact occurs upon penetration, however
slight. Articles 120b(h)(1) and 120(g)(1)(A), UCMJ, 10 U.S.C. §§ 920b(h)(1),
920(g)(1)(A). CM testified that she performed oral sex on Appellant both before
and after she told him her true age. CM was not asked whether she performed
oral sex multiple times on Appellant after he knew she was 15 years old. She
was also never asked explicitly whether Appellant penetrated her mouth with
his penis, and she provided no further elaboration as to what oral sex meant
to her.
We previously found convictions for sodomy both legally and factually in-
sufficient when the only evidence was testimony that “oral sex” occurred. Pow-
ell, 40 M.J. at 770; Hansen, 36 M.J. at 608. As recently as 2016, we cautioned
counsel, “[W]e can speculate as to what [the witness] meant by ‘oral sex;’ how-
ever, criminal convictions are made of stronger stuff than guesswork.” United
States v. Rodriguez, No. ACM 38519, 2016 CCA LEXIS 416, at *33 (A.F. Ct.
Crim. App. 13 Jul. 2016) (unpub. op.) (alterations in original) (citation omit-
ted). While Appellant’s conviction is under Article 120b, UCMJ, not the now
repealed Article 125, UCMJ, the essential element of penetration, however
slight, is required for both UCMJ articles. Without further clarification by the
witnesses of the term “oral sex,” we find this specification, Specification 2 of
the Charge, 7 legally and factually insufficient.
The sexual act charged in the third specification required proof that Appel-
lant penetrated, however slightly, CM’s vulva with his tongue. CM testified
she did not remember if Appellant ever performed oral sex on her. Detective
MF and Detective TF testified that Appellant admitted performing “oral sex”
on CM once after he knew she was 15 years old, without further elaboration.
Applying the case law described above, considering the failure of the Prosecu-
tion to present evidence of penetration, and CM’s lack of memory of this of-
fense, we find this specification, Specification 3 of the Charge, legally and fac-
tually insufficient.
7 The Charge in this case, as originally preferred, included the Article 120b specifica-
tions involving CM. Additional Charge I and Additional Charge II were later preferred
and included the Article 92 dereliction of duty offense for providing alcohol to CM and
the Article 134 offense alleging obstruction of justice, respectively. All charges and
specifications were referred to a single court-martial.
7
United States v. Kuhse, No. ACM 39355
4. Providing Alcohol to a Minor
Appellant’s conviction of willful dereliction of duty for providing alcohol to
a minor required proof of the following elements: (1) Appellant had a certain
prescribed duty, that is: to refrain from providing alcohol to CM, an individual
under the age of 21 years; (2) Appellant actually knew of the assigned duty;
and (3) Appellant was willfully derelict in the performance of that duty by
providing alcohol to CM. See MCM, pt. IV, ¶ 16.b.(3).While Appellant asserts
there is “zero proof” of this offense, we find that the Prosecution proved each
element of the offense beyond a reasonable doubt. Appellant’s roommate, MO,
witnessed CM drinking alcohol provided by Appellant. During the search of
Appellant’s house, Appellant admitted to providing alcohol to CM. Appellant’s
Flight Chief, Senior Master Sergeant (SMSgt) JB, testified that Appellant at-
tended numerous Friday briefings where he was told not to provide alcohol to
anybody under the age of 21 years. SMSgt JB also observed 30 empty alcohol
bottles during the search of Appellant’s house.
Drawing “every reasonable inference from the evidence of record in favor of
the prosecution,” the evidence is legally sufficient to support Appellant’s con-
viction for willful dereliction of duty for providing alcohol to a minor, CM, be-
yond a reasonable doubt. Barner, 56 M.J. at 134. Moreover, having weighed
the evidence in the record of trial and having made allowances for not having
personally observed the witnesses, we are convinced of Appellant’s guilt of will-
ful dereliction of duty for providing alcohol to a minor, beyond a reasonable
doubt. See Turner, 25 M.J. at 325. Appellant’s conviction for Additional Charge
I and its Specification is, therefore, both legally and factually sufficient.
B. Post-trial Confinement Conditions 8
1. Additional Background
In support of his appeal, Appellant submitted a six-page post-trial declara-
tion to the court. One paragraph addresses his post-trial confinement condi-
tions at Whiteman Air Force Base (AFB). Appellant’s argument is three-fold:
(1) the lack of resources and staff hindered the goals of rehabilitation because
there was no education to obtain and the work program was near non-existent;
(2) it took three to four weeks to obtain an appointment to the medical clinic
which presented problems for medical conditions related to Appellant’s head,
eyes, and knee; and (3) Appellant was often neglected and forgotten, including
going to church on Sunday. Appellant did not raise any concerns with his con-
ditions of post-trial confinement using the prisoner grievance system or during
the clemency process. Additionally, the record of trial contains no evidence that
8 This issue is raised personally by Appellant. Grostefon, 12 M.J. 431.
8
United States v. Kuhse, No. ACM 39355
Appellant filed an Article 138, UCMJ, 10 U.S.C. § 938, complaint. We first ad-
dress the threshold issue of whether an additional fact finding hearing is re-
quired. After concluding a fact finding hearing is unnecessary, we will then
turn to applicable law and analysis of Appellant’s underlying claims.
2. Additional Fact Finding Hearing
A post-trial evidentiary hearing is not required in every case simply be-
cause an affidavit is submitted by an appellant. United States v. Ginn, 47 M.J.
236, 248 (C.A.A.F. 1997). Instead, we apply the principles set out by the Court
of Appeals for the Armed Forces (CAAF) to determine when a fact-finding hear-
ing is required. United States v. Fagan, 59 M.J. 238, 241 (C.A.A.F. 2004).
Three of the principles outlined by the CAAF apply to Appellant’s case:
(1) [I]f the facts alleged in the affidavit allege an error that would
not result in relief even if any factual dispute were resolved in
appellant’s favor, the claim may be rejected on that basis.
(2) [I]f the affidavit does not set forth specific facts but consists
instead of speculative or conclusory observations, the claim may
be rejected on that basis.
....
(3) [I]f the affidavit is factually adequate on its face but the ap-
pellate filings and the record as a whole “compellingly demon-
strate” the improbability of those facts, the Court may discount
those factual assertions and decide the legal issue.
Id. at 241–42 (quoting Ginn, 47 M.J. at 248).
Appellant first claims the “lack of resources and staff hindered [the] goals
of rehabilitation because there was no education to obtain and the work pro-
gram was near inexistent [sic].” We find Appellant’s conclusions about the lack
of resources and staff, and the purported impact on education and work pro-
grams to be speculative and conclusory observations. We reject them on that
basis. See Fagan, 59 M.J. at 242; Ginn, 47 M.J. at 248.
Appellant’s declaration next argues it would take a minimum of “3 to 4
weeks to obtain an appointment to the medical clinic which was a problem be-
cause of conditions . . . involving [Appellant’s] head, eyes, and knee.” Appellant
does not describe any medical problems he suffered from delayed medical ap-
pointments. The record of trial includes a Department of Defense Form 2707,
Confinement Order (Mar. 2013) [DD Form 2707], which shows Appellant was
found medically fit for confinement. The DD Form 2707 is signed by Staff Ser-
geant (SSgt) AZ, Non-Commissioned Officer in Charge of Corrections. We
granted the Government’s motion to attach a declaration of SSgt AZ, which
9
United States v. Kuhse, No. ACM 39355
confirmed actual knowledge of Appellant’s medical concerns about his head,
eyes, and knee. SSgt AZ’s declaration avers he worked with Appellant’s unit to
facilitate his medical appointments, the first of which occurred three days after
Appellant was confined. According to SSgt AZ, Appellant received his prescrip-
tions, including eye drops, at this first appointment. We conclude that, even if
the facts as asserted by Appellant are true and his medical appointments were
delayed, he failed to meet his burden of establishing grounds for relief. See
Fagan, 59 M.J. at 242.
Finally, Appellant states he was “often neglected and forgotten . . . includ-
ing going to church on Sunday’s [sic].” SSgt AZ provided documentation, sepa-
rate from his declaration, showing Appellant requested and attended church
services six times during his term of confinement. We find Appellant’s decla-
ration factually adequate, but the appellate filings and record as a whole com-
pellingly demonstrate that Appellant was not neglected and actually attended
church services six times consistent with his requests. See id.
3. Law
Appellant cites Article 12, UCMJ, 10 U.S.C. § 812, and Article 66(c), UCMJ,
as grounds for relief. We disagree that Article 12, UCMJ, applies to Appellant’s
confinement as no foreign nationals were confined with him at Whiteman AFB.
We address his claims under Article 66(c), UCMJ, after we analyze them under
the Eighth Amendment 9 and Article 55, UCMJ, 10 U.S.C. § 855.
We review de novo whether the facts alleged establish cruel and unusual
punishment. United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006) (citation
omitted). Both the Eighth Amendment and Article 55, UCMJ, prohibit cruel
and unusual punishment. In general, we apply “the Supreme Court’s interpre-
tation of the Eighth Amendment to claims raised under Article 55, except in
circumstances where . . . legislative intent to provide greater protections under
[Article 55]” is apparent. United States v. Avila, 53 M.J. 99, 101 (C.A.A.F. 2000)
(citation omitted). “[T]he Eighth Amendment prohibits two types of punish-
ments: (1) those ‘incompatible with the evolving standards of decency that
mark the progress of a maturing society’ or (2) those ‘which involve the unnec-
essary and wanton infliction of pain.’” Lovett, 63 M.J. at 215 (quoting Estelle v.
Gamble, 429 U.S. 97, 102–03 (1976)). A violation of the Eighth Amendment is
shown by demonstrating:
(1) an objectively, sufficiently serious act or omission resulting
in the denial of necessities; (2) a culpable state of mind on the
part of prison officials amounting to deliberate indifference to
[an appellant’s] health and safety; and (3) that [an appellant]
9 U.S. CONST. amend. VIII.
10
United States v. Kuhse, No. ACM 39355
“has exhausted the prisoner-grievance system . . . and that he
has petitioned for relief under Article 138, UCMJ, 10 U.S.C. §
938 [2000].”
Id. (third alteration in original) (footnotes omitted) (quoting United States v.
Miller, 46 M.J. 248, 250 (C.A.A.F. 1997)).
The CAAF emphasized, “[a] prisoner must seek administrative relief prior
to invoking judicial intervention to redress concerns regarding post-trial con-
finement conditions.” United States v. Wise, 64 M.J. 468, 469 (C.A.A.F. 2007)
(citing United States v. White, 54 M.J. 469, 472 (C.A.A.F. 2001)). “This require-
ment ‘promot[es] resolution of grievances at the lowest possible level [and en-
sures] that an adequate record has been developed [to aid appellate review].’”
Id. at 471 (alterations in original) (quoting Miller, 46 M.J. at 250). Except un-
der some unusual or egregious circumstance, an appellant must demonstrate
he or she has exhausted the prisoner grievance process provided by the con-
finement facility and has petitioned for relief under Article 138, UCMJ. White,
54 M.J. at 472 (citation omitted).
4. Analysis
Appellant did not exhaust the prisoner-grievance system nor did he peti-
tion for relief under Article 138, UCMJ. Accordingly, we conclude that Appel-
lant is not entitled to relief under the Eighth Amendment or Article 55, UCMJ.
We also considered whether we should exercise our authority under Article
66(c), UCMJ, to provide sentence relief for the conditions complained of by Ap-
pellant. Under Article 66(c), UCMJ, we have broad authority and the mandate
to approve only so much of the sentence as we find appropriate in law and fact,
and may therefore grant sentence relief even without finding an Eighth
Amendment or Article 55, UCMJ, violation. United States v. Gay, 74 M.J. 736,
742 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016); see United
States v. Tardif, 57 M.J. 219, 223 (C.A.A.F. 2002). When this court considers
judicial relief under Article 66(c), UCMJ, for conditions of post-trial confine-
ment, we have not strictly required an appellant to demonstrate that he has,
absent unusual or egregious circumstances, previously exhausted administra-
tive remedies. See United States v. Kyc, No. ACM S32391, 2017 CCA LEXIS
376, at *13–14 (A.F. Ct. Crim. App. 30 May 2017) (unpub. op.). We instead
consider the entire record and typically give “significant weight” to an appel-
lant’s failure to seek administrative relief prior to invoking judicial interven-
tion, while recognizing the limits of our authority. United States v. Bailey, No.
ACM S32389, 2017 CCA LEXIS 604, at *11 (A.F. Ct. Crim. App. 11 Sep. 2017)
(unpub. op.), rev. denied, 77 M.J. 264 (C.A.A.F. 2018).
11
United States v. Kuhse, No. ACM 39355
After considering the facts and circumstances in the present case, we de-
cline to provide sentence relief under Article 66(c), UCMJ. As this court ob-
served in United States v. Ferrando,
While we have granted sentence relief based upon conditions of
post-trial confinement where a legal deficiency existed, we are
not a clearing house for post-trial confinement complaints or
grievances. Only in very rare circumstances do we anticipate
granting sentence relief when there is no violation of the Eighth
Amendment or Article 55, UCMJ.
77 M.J. 506, 517 (A.F. Ct. Crim. App. 2017) (citations omitted), rev. denied, 77
M.J. 277 (C.A.A.F. 2018). This case does not present those very rare circum-
stances.
C. Sentence Reassessment
Having dismissed Specifications 2 and 3 of the Charge, 10 we consider
whether we should reassess the sentence or return this case for a sentence
rehearing. We are confident we can accurately reassess an appropriate sen-
tence.
This court has “broad discretion” in deciding to reassess a sentence to cure
error and in arriving at an appropriate reassessed sentence. United States v.
Winckelmann, 73 M.J. 11, 12 (C.A.A.F. 2013). The CAAF has observed that
courts of criminal appeals judges can modify sentences “‘more expeditiously,
more intelligently, and more fairly’ than a new court-martial . . . .” Id. at 15
(quoting Jackson v. Taylor, 353 U.S. 569, 580 (1957)).
Pursuant to Winckelmann, 73 M.J. at 15–16, we use four factors to guide
our determination whether to reassess a sentence when applying them to Ap-
pellant’s case:
• Dramatic changes in the penalty landscape and exposure: As a result of
dismissing Specifications 2 and 3 of the Charge, the maximum confine-
ment was reduced from 90 years and 6 months to 30 years and 6
months. The dishonorable discharge remained a mandatory minimum
punishment. The Prosecution argued that an appropriate confinement
term was three years. The Prosecution did not mention the conduct in
Specifications 2 and 3 of the Charge whatsoever in their sentencing ar-
gument. The military judge determined six months was an appropriate
The Government did not request and we decline to affirm any lesser included offense.
10
There was no discussion of lesser included offenses during the trial.
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United States v. Kuhse, No. ACM 39355
term of confinement. While this first factor weighs against reassess-
ment, the analysis is based on the totality of the circumstances and
these four factors are illustrative, not dispositive. Id. at 15.
• Whether an appellant chose sentencing by members or a military judge
alone: Appellant was sentenced by a military judge alone. This factor
weighs in favor of our determination that we may confidently reassess
the sentence.
• Whether the nature of the remaining offenses capture the gravamen of
criminal conduct included within the original offenses and, in related
manner, whether significant or aggravating circumstances addressed at
the court-martial remain admissible and relevant to the remaining of-
fenses: Appellant still stands properly convicted of the most serious of-
fense, sexual intercourse, on divers occasions, with a 15-year-old girl.
The dismissed offenses and the remaining offenses involve the same
victim, CM. The remaining offenses occurred during the same time pe-
riod and at the same location as the dismissed offenses. This is not a
case of an escalating sexual relationship that began with oral sex and
progressed to sexual intercourse. Appellant and CM had sexual inter-
course the first day they met. Indeed, there is no evidence that oral sex
occurred separate and apart from their sexual intercourse. As such, we
find the underlying conduct involving oral sex would have been relevant
and admissible under Mil. R. Evid. 404(b)(2) to show Appellant’s prep-
aration for sexual intercourse with CM at his Warrensburg apartment
and to show Appellant’s intent to satisfy his sexual desires, as required
by the charging used for the remaining Article 120b, UCMJ, offense in
this case. See United States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989);
Mil. R. Evid. 401, 403. Similarly, all the aggravating evidence remained
admissible, including Appellant’s decisions to obtain a Viagra prescrip-
tion after he learned CM was 15 years old, and to have unprotected
vaginal intercourse multiple times with CM, already a mother to one
child. This factor weighs heaviest in our determination that we may
confidently reassess Appellant’s sentence.
• Whether the remaining offenses are of the type that judges of the courts
of criminal appeals should have the experience and familiarity with to
reliably determine what sentence would have been imposed at trial: This
court has ample experience with cases involving Articles 92 and 120b,
UCMJ, offenses like Appellant’s. Our experience informs us that we are
able to reliably determine what sentence would have been imposed at
trial.
Therefore, considering the facts of Appellant’s case and the totality of the
circumstances, we find we are able to determine that, “absent any error, the
13
United States v. Kuhse, No. ACM 39355
sentence adjudged would have been of at least a certain severity . . . .” United
States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986). Having so found, we reassess
Appellant’s sentence to a dishonorable discharge, confinement for five months,
and reduction to the grade of E-1.
III. CONCLUSION
The findings of guilty as to Specifications 2 and 3 of the Charge are SET
ASIDE and Specifications 2 and 3 of the Charge are DISMISSED WITH
PREJUDICE. The remaining findings and the sentence as reassessed are cor-
rect in law and fact and no other error materially prejudicial to the substantial
rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§
859(a), 866(c). Accordingly, the remaining findings and the reassessed sen-
tence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
14