United States v. Lull

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39555
________________________
UNITED STATES
Appellee
v.
George L. LULL
Master Sergeant (E-7), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 2 September 2020
________________________
Military Judge: Brian D. Teter.
Approved sentence: Dishonorable discharge, confinement for 4 years,
and reduction to E-3. Sentence adjudged 5 January 2018 by GCM con-
vened at Tinker Air Force Base, Oklahoma.
For Appellant: Major M. Dedra Campbell, USAF; Tami L. Mitchell, Es-
quire; David P. Sheldon, Esquire.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant
Colonel G. Matt Osborn, USAF; Major Jessica L. Delaney, USAF; Major
Anne M. Delmare, USAF; Mary Ellen Payne, Esquire.
Before J. JOHNSON, POSCH, and KEY, Appellate Military Judges.
Senior Judge POSCH delivered the opinion of the court, in which Chief
Judge J. JOHNSON and Judge KEY joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
POSCH, Senior Judge:
A general court-martial composed of officer members convicted Appellant,
contrary to his pleas, of sexual assault, stalking, and assault consummated by
United States v. Lull, No. ACM 39555
a battery of NB, in violation of Articles 120, 120a, and 128, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 920, 920a, and 128. 1,2 Appellant was
sentenced to a dishonorable discharge, confinement for four years, and reduc-
tion to the grade of E-3. Before taking action, the convening authority deferred
the mandatory forfeiture of Appellant’s pay and allowances until action; and
waived the mandatory forfeitures for the benefit of Appellant’s dependent
daughter for a period of six months, or upon his release from confinement or
the expiration of his term of service, whichever was sooner, with the waiver
commencing 14 days after the sentence was adjudged. At action, the convening
authority approved the adjudged sentence.
Appellant raises 24 issues on appeal, 17 of which are assignments of error 3
Appellant raises through his appellate counsel: (1) whether the court-martial
lacked personal jurisdiction over Appellant; (2) whether Appellant’s confine-
ment is unlawful because he was released from active duty the day after his
court-martial concluded; (3) whether Appellant’s honorable discharge effective
6 January 2018 renders Appellant’s confinement unlawful or remits his unex-
ecuted dishonorable discharge; (4) whether the evidence is legally and factually
sufficient to support the convictions; (5) whether the stalking specification fails
to state an offense; 4 (6) whether the military judge erred in admitting evidence
under Military Rule of Evidence (Mil. R. Evid.) 404(b); (7) whether the military
judge erred in allowing expert testimony on abusive relationships; (8) whether
the military judge erred in not ruling on the admissibility of a Defense exhibit;
(9) whether the court-martial lacked subject-matter jurisdiction over the sex-
ual assault charge because Appellant was not placed on notice of the theory to
defend against, and his conviction was based on theories neither charged nor
referred to trial; (10) whether the military judge erred in instructing the mem-
bers on alternate theories of criminal liability for sexual assault that were nei-
ther charged nor referred to trial; (11) whether the military judge erred in per-
mitting NB to give an unsworn statement that referenced impact arising from
uncharged misconduct, her participation in Appellant’s trial, past and future
1 All references in this opinion to the Uniform Code of Military Justice (UCMJ), Rules
for Courts-Martial (R.C.M.), and Military Rules of Evidence (Mil. R. Evid.) are to the
Manual for Courts-Martial, United States (2016 ed.).
2 Appellant was found guilty of the assault consummated by a battery offense by ex-
ception and substitution. Appellant pleaded not guilty and was acquitted of a second
specification each of sexual assault and assault consummated by a battery, in violation
of Articles 120 and 128, UCMJ, 10 U.S.C. §§ 920, 928.
3 We reordered the assignments of error Appellant presents in his brief.
4 We consider assignment of error (5) in our resolution of assignment of error (4).
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United States v. Lull, No. ACM 39555
victims, and impact on coworkers under the theory that such statements are
improper victim impact under Rule for Courts-Martial (R.C.M.) 1001A; (12)
whether the military judge erred by failing sua sponte to provide an instruction
on NB’s unsworn victim statement and the impact of a punitive discharge on
retirement benefits; (13) whether a sentence of a mandatory dishonorable dis-
charge is unconstitutional; (14) whether the sentence is inappropriately severe;
(15) whether Appellant is entitled to relief for excessive post-trial delay where
the convening authority did not take action until 286 days after Appellant’s
court-martial; (16) whether Appellant was denied effective assistance of coun-
sel under the Sixth Amendment; 5 and (17) whether the cumulative effect of
errors substantially impaired the fairness of Appellant’s court-martial. With
respect to issues (8), (13), and the claim that Appellant’s counsel were ineffec-
tive by failing to make various objections to testimony on the basis of hearsay,
relevance, and Mil. R. Evid. 404(b), as presented in issue (16), we have care-
fully considered Appellant’s contentions and find they do not require further
discussion or warrant relief. See United States v. Matias, 25 M.J. 356, 361
(C.M.A. 1987).
Appellant personally raises seven issues pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982): (18) whether the military judge erred in
denying the Defense’s motion to dismiss due to a defective referral as a result
of the Government’s failure to provide discovery in a timely manner; (19)
whether the military judge erred in refusing to permit the Defense to introduce
evidence under Mil. R. Evid. 412; (20) whether trial counsel committed prose-
cutorial misconduct during rebuttal and sentencing arguments; (21) whether
Appellant is entitled to relief for egregious post-trial conditions of confinement;
(22) whether Appellant is entitled to new post-trial processing because the
Government failed to serve Appellant with a complete copy of the record of trial
(ROT), the addendum to the staff judge advocate’s recommendation failed to
adequately address the defense-raised legal error of ineffective assistance of
counsel, and because confinement officials removed pages and exhibits from
Appellant’s copy of the ROT; (23) whether the convening authority abused his
discretion by failing to explain why he denied Appellant’s request to defer the
5U.S. CONST. amend. VI. We consider Appellant’s claim that his counsel were deficient
in failing to object to NB’s unsworn statement presented in the sentencing hearing in
our resolution of assignment of error (11). Appellant also claims his counsel were defi-
cient in failing to introduce evidence of the value of retirement benefits he was ineligi-
ble to receive due to the mandatory dishonorable discharge. We consider this issue
after our resolution of assignment of error (11).
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United States v. Lull, No. ACM 39555
adjudged reduction in grade; and (24) whether the report of result of trial in-
correctly states that Appellant’s conviction qualifies as “domestic violence.” We
have carefully considered issues (18) through (24) and determine they are with-
out merit and warrant no discussion or relief; and, based on our resolution of
all issues, we find no merit to assignment of error (17). 6 Matias, 25 M.J. at 361.
In addition to issues (1) through (24), we consider two issues identified dur-
ing this court’s Article 66(c), UCMJ, 10 U.S.C. § 866(c), review. In deciding if
the military judge erred in the findings instructions he gave to the members in
our resolution of assignment of error (10), we also determine if Appellant is
entitled to relief for the military judge’s error in failing to instruct the members
on the charged timeframe for the stalking offense. We also determine if Appel-
lant is entitled to relief for untimely appellate review.
We find Appellant’s convictions both legally and factually sufficient, and no
error materially prejudicial to the substantial rights of Appellant occurred.
Thus, we affirm the findings and sentence.
I. BACKGROUND
Appellant is a member of the Air Force Reserve and was often recalled to
active duty for training and in support of military operations. In early Decem-
ber 2014, Appellant had been recalled to active duty when he met NB at his
neighbor’s home across the street from his house before they all went to a
squadron Christmas party. Appellant and his neighbor were assigned to the
same reserve unit at Tinker Air Force Base (AFB), Oklahoma, and the neigh-
bor and NB were friends. Appellant and NB began dating after the Christmas
party. 7 Three weeks later on Christmas Day, Appellant and NB were guests at
a dinner party in his neighbor’s home. NB had been drinking in the afternoon
as she helped prepare the food, and she became increasingly intoxicated
throughout the evening.
Because of the amount of alcohol she consumed, Appellant helped NB walk
to his home after the dinner party. The next thing NB remembered was being
on her hands and knees and Appellant was having sexual intercourse with her
from behind. Although they had been sexually intimate with each other earlier
6 We will set aside the findings or sentence, as appropriate, if the cumulative effect of
all plain and preserved errors denied an appellant a fair trial. United States v. Pope,
69 M.J. 328, 335 (C.A.A.F. 2011). “Assertions of error without merit are not sufficient
to invoke this doctrine.” United States v. Gray, 51 M.J. 1, 61 (C.A.A.F. 1999).
7 NB had no military affiliation of her own when she and Appellant started dating.
Shortly after, in February 2015, NB enlisted in the United States Army Reserve and
left for basic training the following month, in mid-March.
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United States v. Lull, No. ACM 39555
in the relationship, NB testified it was the first time Appellant engaged her in
sexual intercourse. Appellant’s conduct that evening was the basis for his con-
viction for sexual assault that was charged in Specification 1 of Charge I. NB
testified she was ashamed to tell her friends what happened and felt some re-
sponsibility for the sexual assault because she was drunk. Even so, NB main-
tained a relationship with Appellant after the sexual assault because she felt
affection for him in the few weeks they were together and believed she could
trust him as they “started building a relationship.”
Appellant remained on active duty between January and mid-March 2015.
During this time, Appellant frequently observed NB from outside her apart-
ment and while parked in his truck near the federal facility where she worked
as a corrections officer, watching to see whom she was with when she was not
alone. One evening when NB’s sister and her sister’s three children spent the
night in NB’s home, NB heard the distinctive sound of Appellant’s truck engine
in the parking lot. Before long, Appellant banged on the door to her apartment
and demanded to know whom she was with, his anger fueled by an assumption
that NB was with another man and having sex with him in her home. Appel-
lant’s conduct in proximity to NB’s home and place of work was the basis for
his conviction for stalking that was charged in the Specification of the Addi-
tional Charge. Although NB did not then report Appellant’s conduct to law en-
forcement, she began relating to others how Appellant treated her in the rela-
tionship, including concerns she expressed to her sister, a coworker, the apart-
ment manager, and Appellant’s neighbor, who all testified at trial after Appel-
lant challenged NB’s credibility and the truthfulness of her testimony.
Sometime in January 2015 and within the charged timeframe for the stalk-
ing offense, Appellant and NB were relaxing on a couch in her apartment. As
NB lay down with her head on his lap, Appellant compressed his arm around
her neck in a chokehold without apparent provocation. NB felt the pressure of
Appellant strangling her and grabbed for Appellant’s hand before she passed
out. NB’s coworker asked her about bruises he observed around NB’s neck after
the incident, and NB told him “she got choked out” by her boyfriend. The
coworker encouraged NB to report Appellant’s conduct to the police, but NB
told him she was afraid to make a statement because Appellant said he had
friends in the police department. Appellant’s conduct was the basis for his con-
viction for assault consummated by a battery that was charged in Specification
1 of Charge II.
For the most part, Appellant and NB were in a long-distance relationship
after the end of the charged timeframe for the stalking offense until near the
end of 2015. In mid-March of 2015, NB left for Army basic training followed by
technical training, and then training for a new civilian job in law enforcement
on the east coast. She had limited contact with Appellant while she was away
5
United States v. Lull, No. ACM 39555
from home or when Appellant was deployed. Appellant’s conduct came to the
attention of authorities after Appellant strangled NB a second time at the end
of the year, when Appellant was not subject to military jurisdiction. Appellant
had flown to visit NB during the Christmas holiday in December 2015 when
NB had a break in her law enforcement training at a school she was attending
in Georgia. NB described at trial how Appellant strangled her with his right
arm as he stood behind her in the shower of her dorm room, and she collapsed
to the floor. Before New Year’s Eve, NB told a classmate what happened and
he reported the recent incident to an instructor. NB subsequently reported Ap-
pellant’s conduct to a federal law enforcement agent who relayed the infor-
mation to Appellant’s unit, and a command-directed investigation ensued. A
subsequent investigation by the Air Force Office of Special Investigations un-
covered that Appellant engaged in other acts of misconduct, including stran-
gulation and sexual assault of a previous intimate partner, PH, whom he dated
between the summer of 2013 and spring of 2014.
At trial, the Government presented NB’s testimony and testimony of wit-
nesses who recounted statements NB made to them about the acts underlying
the charged offenses. The Government also presented testimony concerning
Appellant’s behavior during his relationship with NB that the military judge
admitted as crimes, wrongs, or other acts under Mil. R. Evid. 404(b). Among
the acts of uncharged misconduct the military judge admitted was testimony
that Appellant strangled NB in the shower in December 2015; and that in his
prior relationship with PH, Appellant would strangle her when they were sex-
ually intimate, and that he often would enter PH’s residence without her
knowledge or permission. The Government also introduced propensity evi-
dence of Appellant’s sexual misconduct with PH that was admitted under Mil.
R. Evid. 413 to prove Appellant’s sexual assault of NB. The Government’s final
witness was a forensic psychologist who explained how individuals maintain
control in abusive relationships and the barriers that keep victims from ending
those relationships and leaving an abuser. At trial, Appellant defended against
the three charges principally on the basis that NB was not a credible witness
and her testimony and prior statements were untruthful.
In this appeal, Appellant maintains that NB’s testimony and pretrial state-
ments were unreliable and claims numerous errors in both the findings and
sentencing phases of his court-martial, as well as errors in post-trial pro-
cessing. We consider the claimed errors and begin with Appellant’s contention
that the court-martial was without jurisdiction to try him for offenses under
the UCMJ because he was a reservist.
6
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II. DISCUSSION
A. Personal Jurisdiction
In his first assignment of error, Appellant claims the Government failed to
allege and prove at trial that he was on active duty during the timeframes
charged by the Government. It follows, Appellant contends, that the findings
and sentence must be set aside because the Government failed to prove the
court-martial had personal jurisdiction at the time of the offenses. See, e.g.,
United States v. Ali, 71 M.J. 256, 265 (C.A.A.F. 2012) (“[J]urisdiction over the
person depends on the person’s status as a person subject to the Code both at
the time of the offense and at the time of trial.” (citations and internal quota-
tion marks omitted)). Appellant also claims the findings and sentence must be
set aside because he was not properly recalled to active duty for the purpose of
trial by court-martial, and thus there was no personal jurisdiction to try him.
See id. We disagree and find the Government had personal jurisdiction over
Appellant both at the time of each offense and at trial.
1. Personal Jurisdiction at the Time of the Offenses
“A reservist is subject to jurisdiction under Article 2(a), UCMJ, from the
date of activation, and answerable under the UCMJ for any offense committed
thereafter.” United States v. Morita, 74 M.J. 116, 120 (C.A.A.F. 2015) (citing
United States v. Cline, 29 M.J. 83, 85–86 (C.M.A. 1989)) (internal quotation
marks and alteration omitted). “Jurisdiction continues until ‘active service has
been terminated.’” United States v. Hale, 78 M.J. 268, 271 (C.A.A.F. 2019) (cit-
ing Article 2(c), UCMJ, 10 U.S.C. § 802(c)).
Appellant claims the charges must be dismissed because the Government
did not prove at trial that at the time of the offenses he was a member of the
Air Force on active duty and thus subject to the personal jurisdiction of a court-
martial. Ordinarily, an accused who wants to challenge jurisdiction would
move at trial to dismiss the charges under R.C.M. 907(b)(1). In that event, the
burden of persuasion is on the Government to show proper jurisdiction, R.C.M.
905(c)(2)(B), and appellate review is de novo, see, e.g., Hale, 78 M.J. at 270
(citing EV v. United States, 75 M.J. 331, 333 (C.A.A.F. 2016)). 8 “When chal-
lenged, the Government must prove jurisdiction by a preponderance of evi-
dence.” Id. (citations omitted). Appellant challenges personal jurisdiction for
8 When an appellant contests personal jurisdiction at trial we “accept[ ] the military
judge’s findings of historical facts unless they are clearly erroneous or unsupported in
the record.” United States v. Hart, 66 M.J. 273, 276 (C.A.A.F. 2008) (quoting United
States v. Melanson, 53 M.J. 1, 2 (C.A.A.F. 2000)).
7
United States v. Lull, No. ACM 39555
the first time on appeal, 9 see R.C.M. 907(b)(1), thus we employ the fact-finding
authority given to this court under Article 66, UCMJ, in reviewing information
necessary to decide the question. See, e.g., United States v. Cendejas, 62 M.J.
334, 338 (C.A.A.F. 2006).
The dates when Appellant was on active duty and under military jurisdic-
tion are well documented in matters attached to the record of trial. The docu-
mentation shows that Appellant was subject to military jurisdiction when he
committed each offense. Article 2(a)(1), UCMJ, 10 U.S.C. § 802(a)(1). To reach
this conclusion, we need look no further than a certified Air Force (AF) Form
938 that confirms Appellant’s continuous active duty status during the rele-
vant period. 10 Appellant was activated from 1 December 2014 through 1 May
2015, a period that encompasses each timeframe charged by the Government. 11
His voluntary activation began 25 days before the charged assaults and a
month before the first date of the stalking offense, and Appellant remained on
active duty for six weeks after the end of the charging window for the stalking
offense. According to the AF Form 938, during his recall Appellant was as-
signed to the 970th Airborne Air Control Squadron (AACS) at Tinker AFB
while providing support to the 966th AACS, which we judicially note 12 is an
active component unit of the Regular Air Force.
9 Before trial, Appellant initially moved to dismiss the charges for lack of personal
jurisdiction claiming that no general court-martial convening authority (GCMCA) had
ordered Appellant to active duty for preferral of charges or the Article 32, UCMJ, pre-
liminary hearing. In response, the Government presented a memorandum from the
GCMCA that directed Appellant’s recall for these purposes, and Appellant’s trial de-
fense counsel then stated that Appellant’s motion was moot.
10Air Force Form 938, Request and Authorization for Active Duty Training/Active Duty
Tour, is the order (identified as Reserve Order No. D6CSEE in block 32), dated 14
November 2014, authorizing Appellant to active duty. This order is included in the Air
Force Office of Special Investigations (AFOSI) report of investigation (ROI) which was
attached to the 8 May 2017 letter appointing the preliminary hearing officer, located
in the record of trial.
11The Government alleged the sexual assault occurred on or about 26 December 2014,
the assault consummated by a battery occurred between on or about 26 December 2014
and on or about 14 February 2015, and the stalking occurred between on or about 1
January 2015 and 15 March 2015. The members announced findings without making
exceptions to, or substitutions for, these dates.
12 A Court of Criminal Appeals may “take judicial notice of an undisputed fact or ques-
tion of domestic law that is important to the resolution of an appellate issue, [but] it
cannot take judicial notice of facts necessary to establish an element of the offense.”
United States v. Paul, 73 M.J. 274, 280 (C.A.A.F. 2014).
8
United States v. Lull, No. ACM 39555
The day after the conclusion of his tour, on 2 May 2015, Appellant placed
his signed acknowledgement on the AF Form 938 stating that he complied with
the order, and a certifying official attested on 2 May 2015 that Appellant “re-
ported for duty at 0730 hours on 20141201 [1 December 2014] and was released
from duty at 1600 hours on 20150501 [1 May 2015].” The testimony and evi-
dence at trial convincingly established Appellant engaged in the charged con-
duct within each of the timeframes when he was on active duty and assigned
to the 970th AACS, and Appellant’s reserve unit of assignment was identified
in each specification. 13
Even so, Appellant claims the Government was required to allege and prove
at trial that he was on active duty at the time of the offenses even though Ap-
pellant raised no objection at trial and challenges personal jurisdiction for the
first time on appeal. This is so, he contends, because he is a reservist and the
970th AACS is a unit of the Air Force Reserve. Appellant relies on the discus-
sion to R.C.M. 307(c)(3), which states, “[t]he specification should describe the
accused’s . . . status which will indicate the basis for jurisdiction” when an ac-
cused is not on active duty. Discussion (C)(iv)(b). However, reliance on this
language is inapt because Appellant had been recalled to active duty service.
The lead sentence of the Discussion states that setting forth the basis for per-
sonal jurisdiction in the charging instrument is only suggested for persons sub-
ject to the UCMJ by reason of Article 2(a), UCMJ, subsections (3) through
(12)—code provisions that are different from the basis for personal jurisdiction
here, Article 2(a)(1), UCMJ. Ordinarily, and “[a]s a general rule, a specification
is not required to state the authority for personal jurisdiction over the accused
when the accused is on active duty.” United States v. Miller, 78 M.J. 835, 844
(A. Ct. Crim. App. 2019) (citing R.C.M. 307(c)(3), Discussion (C)(iv)(a)–(b)), rev.
denied, 79 M.J. 242 (C.A.A.F. 2019). We find Appellant’s status as a member
of a reserve component and his assignment to the 970th AACS, a reserve unit,
and the identification of that unit in the three specifications of which he was
convicted, did not require the Government to allege and prove at trial that it
had personal jurisdiction that went unchallenged until appeal.
Appellant similarly contends that Air Force Instruction (AFI) 51-201, Ad-
ministration of Military Justice, ¶ 2.14.2 (8 Dec. 2017), 14 which stipulates that
13 The AF Form 938 and other evidence in the record supports an additional basis to
find jurisdiction: Appellant received pay and allowances for performing military duties
after consenting to being ordered to active duty and meeting minimum age and mental
competence qualifications. See Article 2(c), UCMJ, 10 U.S.C. § 802(c).
14The policy is currently described in AFI 51-201, Administration of Military Justice,
¶ 4.14.2 (18 Jan. 2019, as amended by AFGM 2020-01, 8 Apr. 2020).
9
United States v. Lull, No. ACM 39555
“trial counsel must introduce sufficient evidence to establish in-personam ju-
risdiction over the accused at the time of the offense,” requires proof at trial
that Appellant was on active duty at the time of the offenses. (Citations omit-
ted). However, Appellant made no similar claim at trial, and the argument that
the language of AFI 51-201 creates a legal requirement to prove jurisdiction at
trial, even when there is no challenge, is no more persuasive now than it was
when this court rejected it in United States v. Gardner, No. ACM S30091, 2003
CCA LEXIS 198 (A.F. Ct. Crim. App. 27 Mar. 2003) (per curiam) (unpub. op.),
rev. denied, 59 M.J. 116 (C.A.A.F. 2003). In Gardner, this court held,
From its context, the language of the instruction is advisory—
there is no indication it was intended to create a new element
for offenses committed by reservists beyond those defined by
Congress in the UCMJ, or detailed by the President in the Man-
ual for Courts-Martial. There is nothing to indicate that the in-
struction was intended to create some additional substantive
right for an accused, such that a failure to follow the instruc-
tion’s guidance would generate grounds for appellate relief.
Id. at *4–5.
We find Appellant’s signed, certified AF Form 938 shows he was serving on
active duty while assigned to the 970th AACS at Tinker AFB during each
timeframe charged by the Government for the three offenses that Appellant
was found guilty of committing, and thus the Government had personal juris-
diction over Appellant at the time of each offense. We further find that the
Government was not required at trial to prove personal jurisdiction that went
unchallenged until appeal.
2. Recall to Active Duty and Personal Jurisdiction at Trial
Appellant contends that he was not properly recalled to active duty for trial
by court-martial. On 7 April 2017, the then-acting Secretary of the Air Force
(SECAF), by memorandum, approved a request to recall Appellant to active
duty. This request was submitted by the commander of the Air Force Sustain-
ment Center (AFSC), who was also the general court-martial convening au-
thority (GCMCA) who referred the charges against Appellant to trial by gen-
eral court-martial. The SECAF memorandum was addressed to the AFSC com-
mander and approved Appellant’s recall to active duty, stating,
On 20 December 2016, you requested my approval, pursuant to
Article 2(d)(5), Uniform Code of Military Justice, [10 U.S.C.
§ 802(d)(5)], to recall [Appellant] to active duty, as needed, for
military justice action. You made this request so that, if he is
convicted, a court-martial may adjudge, and [Appellant] may be
10
United States v. Lull, No. ACM 39555
required to serve, a sentence to confinement or restriction on lib-
erty. I hereby approve any recall to active duty of [Appellant]
that you have ordered or may hereafter order.
On 18 April 2017, the AFSC commander, by memorandum, ordered Appel-
lant to active duty pending disposition of charges that subsequently would be
preferred:
Pursuant to AFI 51-201, paragraph 2.9, I direct that [Appellant]
be involuntarily ordered to active duty for preferral of charges,
a pre-trial hearing, and, if warranted by the evidence presented
at the preliminary hearing, trial by court-martial.
(Emphasis added).
On 28 April 2017, an AF Form 938 was generated recalling Appellant to
active duty effective on the date charges were preferred, 1 May 2017. 15 Appel-
lant continuously remained on active duty until 6 January 2018, the day after
he was sentenced and the court-martial adjourned. 16 The AF Form 938 speci-
fied, “By order of the Secretary of the Air Force[,] member is on involuntary
call[-]up pending court martial action.” (Emphasis added). However, block
18(a) of the form cited the authority for the tour as 10 U.S.C. § 12301(d) as did
six amendments. Furthermore, neither the SECAF nor the AFSC commander
cited 10 U.S.C. § 802, which provides that a member of a reserve component
may be ordered to active duty involuntarily for the purpose of an Article 32,
UCMJ, 10 U.S.C. § 832, investigation and trial by court-martial.
Appellant argues that because AF Form 938 erroneously cited 10 U.S.C.
§ 12301(d) as authority to order him to active duty, we must look no further
than that section to determine if his recall was valid. Section 12301(d) provides
that “[a]t any time, an authority designated by the Secretary concerned may
order a member of a reserve component under his jurisdiction to active duty,
or retain him on active duty, with the consent of that member.” (Emphasis
added). Appellant argues that because the order cited § 12301(d), it follows
15An Article 32, UCMJ, 10 U.S.C. § 832, preliminary hearing was held on 12 June
2017. An additional charge was preferred on 31 July 2017 and a second preliminary
hearing was held on 11 August 2017.
16 Seven amendments to the AF Form 938 in succession changed Appellant’s release
from active duty to 31 July 2017, 30 September 2017, 31 December 2017, 5 January
2018, 9 January 2018, 12 January 2018, and a final amendment curtailing the order
to 6 January 2018. Appellant attached a copy of the AF Form 938, as amended—with
an uncertified statement of Appellant’s duty—to his 7 September 2018 clemency re-
quest.
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United States v. Lull, No. ACM 39555
that a valid recall, and, therefore, personal jurisdiction, would require his con-
sent, which he had not given.
We find the apparent administrative error in citing 10 U.S.C. § 12301(d) on
the AF Form 938 did not divest the court-martial of personal jurisdiction. The
AFSC commander who referred the charges directed Appellant’s involuntary
recall after requesting approval to recall Appellant to active duty, as needed,
from the SECAF. The SECAF then approved “any recall to active duty of [Ap-
pellant] that you have ordered or may hereafter order.” The commander’s recall
was then administratively executed, and Appellant was issued an AF Form
938, as amended, that effectuated the commander’s intent and directed Appel-
lant’s “involuntary call[-]up pending court martial action.” (Emphasis added).
The statutory requirements necessary to order Appellant to active duty status
involuntarily under Article 2, UCMJ, were met despite the apparent error in
citing authority that required Appellant’s consent to be recalled, which no evi-
dence suggests was given. See United States v. Ferrando, 77 M.J. 506, 512 (A.F.
Ct. Crim. App. 2017) (citing United States v. O’Connor, No. ACM 38420, 2015
CCA LEXIS 47, at *11 (A.F. Ct. Crim. App. 12 Feb. 2015) (unpub. op.) (holding
that erroneous citation to 10 U.S.C. § 12301(d) in reservist appellant’s orders
was an administrative error that did not divest the court-martial of personal
jurisdiction when the Air Force clearly intended to recall Appellant to active
duty for his court-martial pursuant to the GCMCA’s directive and the Secre-
tary’s approval)).
We are unwilling to hold that an apparent mistake on Appellant’s AF Form
938 in carrying out the otherwise clear intent of senior Air Force officials to
properly recall Appellant to active duty warrants a conclusion that jurisdiction
is lacking. We find no reason to depart from our holding in Ferrando, that “an
administrative or clerical error committed by the Air Force in properly exercis-
ing its statutory jurisdiction over a member does not divest the court-martial
of its otherwise lawful jurisdiction over that member.” 77 M.J. at 512. We con-
clude Appellant was properly recalled to active duty for trial by court-martial
without his consent, and the Government had personal jurisdiction over Ap-
pellant at the time of his court-martial.
B. Release from Active Duty after Adjournment and Honorable Char-
acterization of Service
Appellant was involuntarily recalled to active duty effective 1 May 2017. A
subsequent amendment curtailed the recall order to the day after his court-
martial, 6 January 2018. Appellant claims his continued confinement is un-
lawful because he was released from active duty the day after his court-martial
adjourned. Appellant also claims he was honorably discharged after trial, thus
rendering his confinement unlawful and remitting his dishonorable discharge.
We are not persuaded by either contention.
12
United States v. Lull, No. ACM 39555
1. Additional Background
Late in the evening on 5 January 2018, officer members announced their
findings and sentence, and Appellant began serving his four-year sentence to
confinement. About a week after trial concluded, the Government curtailed Ap-
pellant’s 12 January 2018 release from active duty to 6 January 2018. On 10
February 2018, the convening authority approved Appellant’s request to defer
the mandatory forfeitures of Appellant’s pay and allowances until action, and
waived the mandatory forfeitures for a period of six months for the benefit of
Appellant’s dependent child, with the waiver commencing 14 days after the
sentence was adjudged. 17
Because Appellant’s active duty status was terminated effective 6 January
2018, there was initially no pay or allowances to carry out the convening au-
thority’s direction to defer and waive forfeitures for the benefit of Appellant’s
daughter. Then, on 24 May 2018, a personnel officer, Major (Maj) AH, signed
two special orders “involuntarily recall[ing]” Appellant to active duty, citing 10
U.S.C. § 802(d) as authority for the recall. 18 One order was retroactive, cover-
ing the period 5 January 2018 to 19 July 2018, and was “for the purpose of
serving the confinement adjudged at [Appellant’s] court-martial and executing
the GCMCA[-]approved deferment and waiver of automatic (mandatory) for-
feitures.” The second order covered a much longer period, 20 July 2018 to 19
January 2022, and was “for the purpose of serving [Appellant’s] adjudged sen-
tence of confinement from [Appellant’s] general court-martial conviction.”
Several months after trial concluded, Appellant was issued a DD Form 214,
Certificate of Release or Discharge from Active Duty, reflecting an “Honorable”
characterization of service for the period beginning on 1 May 2017 through
Appellant’s release from active duty on 6 January 2018. 19 The date range en-
compassed the period that Appellant underwent UCMJ disciplinary proceed-
ings and ended on the first full day of Appellant’s sentence to confinement.
2. Law
Article 2(d)(1), UCMJ, 10 U.S.C. § 802(d)(1), explains that a member of a
reserve component who is not on active duty and who is made the subject of
UCMJ proceedings may be ordered to active duty involuntarily for the purpose
of a preliminary hearing or trial by court-martial. If the order to active duty is
17 See Articles 57(a)(2) and 58b(b), UCMJ, 10 U.S.C. §§ 857(a)(2), 858b(b).
18 This court granted Appellee’s motion to attach the orders along with a declaration
of an accounting specialist and a military pay voucher showing payment of $16,959.00
to Appellant’s daughter on 13 July 2018. Both orders directed that travel, per diem,
lodging, and meal reimbursement were not authorized.
19 This court granted Appellant’s motion to attach the DD Form 214.
13
United States v. Lull, No. ACM 39555
“approved by the Secretary concerned,” such member may “be sentenced to
confinement” Article 2(d)(5), UCMJ. Members of a reserve component who are
sentenced to confinement are “[p]ersons in custody of the armed forces serving
a sentence imposed by a court-martial” and subject to the UCMJ. See Article
2(a)(7), UCMJ, 10 U.S.C. § 802(a)(7).
Rule for Courts-Martial 204(b)(1) implements requirements for the reten-
tion on active duty of reserve component personnel who have been sentenced
to confinement:
A member ordered to active duty pursuant to Article 2(d) may
be retained on active duty to serve any adjudged confinement or
other restriction on liberty if the order to active duty was ap-
proved in accordance with Article 2(d)(5), but such member may
not be retained on active duty pursuant to Article 2(d) after ser-
vice of the confinement or other restriction on liberty.
The Secretary concerned is authorized by R.C.M. 204(a) to prescribe rules
and procedures for ordering a reservist to active duty for disciplinary proceed-
ings under the UCMJ. 20 As noted previously, AFI 51-201 is one such instruc-
tion that implements the UCMJ and Manual for Courts-Martial for the De-
partment of the Air Force. AFI 51-201, ¶ 1.1. Specifically for members of a re-
serve component, the AFI provides that upon final adjournment of a court-
martial,
the reserve component member ordered to active duty for the
purpose of conducting disciplinary proceedings should be re-
leased from active duty within one working day, unless the order
to active duty was approved by the Secretary of the Air Force
and confinement was adjudged. The court-martial convening au-
thority who convenes the court shall fund the active duty orders
of the reserve component member being court-martialed, includ-
ing the duration of confinement.
Id. at ¶ 2.14.7. 21
20See R.C.M. 204(a), Discussion (“Such regulations should describe procedures for or-
dering a reservist to active duty for disciplinary action, preferral of charges, prelimi-
nary hearings, forwarding of charges, referral of charges, designation of convening au-
thorities . . . , and for other appropriate purposes.”).
21The policy is currently described in AFI 51-201, Administration of Military Justice,
¶ 4.14.7 (18 Jan. 2019, as amended by AFGM 2020-01, 8 Apr. 2020).
14
United States v. Lull, No. ACM 39555
3. Analysis
Appellant contends that the retroactive termination of his active duty sta-
tus and the Government’s failure to continue his active status after 6 January
2018 render his confinement unlawful. Appellant similarly contends that his
honorable “discharge” causes his confinement to be unlawful and remits his
approved dishonorable discharge. We address each contention in turn.
a. Curtailment of Appellant’s Active Duty Status after Adjourn-
ment
While acknowledging the orders Maj AH issued after Appellant’s court-
martial purport to return Appellant to active duty for the duration of confine-
ment, Appellant claims the orders are void ab initio because they were not is-
sued by the convening authority, and thus Maj AH lacked authority to order
Appellant to active duty to serve confinement. 22 As a result, Appellant com-
plains that he did not receive pay and allowances or earn leave for the two-
week period following his court-martial, his dependent daughter was denied
TRICARE military medical benefits, and he was placed in an absent without
leave (AWOL) status in his civilian employment and lost his job as a conse-
quence. Appellant also contends “[h]ad he been continued on active duty during
confinement,” he would have been placed in a leave-without-pay status, which
would have afforded Appellant rights under the Uniformed Services Employ-
ment and Reemployment Rights Act (USERRA), 38 U.S.C. §§ 4301–4335, and
allowed Appellant to return to his civilian employment after serving his sen-
tence.
Appellant’s contention that his confinement is unlawful because he was not
properly ordered to active duty for the duration of confinement appears to pre-
sent a novel legal question for this court to decide. However, Appellant’s argu-
ment is based on policy; it lacks support in the text of the UCMJ. The primary
basis for the Government asserting jurisdiction over Appellant at trial was Ar-
ticle 2(d)(1), UCMJ, which concerns the legal authority to order a reservist to
active duty involuntarily for the purpose of a preliminary hearing or “trial by
court-martial.” Appellant’s court-martial concluded and confinement began at
22 We also considered Appellant’s claims in his 10 October 2018 request for extraordi-
nary relief in the nature of a writ of habeas corpus and a writ of mandamus, asking
this court to order the commanding officer of the Naval Consolidated Brig Charleston
to immediately release Petitioner-Appellant from confinement. In that petition, Appel-
lant argued that (1) the orders were signed by Maj AH who has no authority to recall
him to active duty; (2) there is no indication Maj AH acted on behalf of the GCMCA;
(3) the wrong confinement location is listed; and (4) the letterhead is not the same as
that of the GCMCA. Lull v. Brobst, Misc. Dkt. No. 2018-04, 2018 CCA LEXIS 559, at
*8–9 (A.F. Ct. Crim. App. 6 Dec. 2018) (opinion). We find no merit to these claims.
15
United States v. Lull, No. ACM 39555
the end of the sentencing hearing. See Article 57(b), UCMJ, 10 U.S.C. § 857;
R.C.M. 1011, Adjournment; see also United States v. Turner, 79 M.J. 401, 405
n.6 (C.A.A.F. 2020) (“The term ‘court-martial’ has a specialized, well-defined
meaning in the military. A court-martial is not over until it is, in fact, ad-
journed, and adjournment occurs after the sentencing phase of the proceed-
ing.”). We are aware of no requirement in the code to continue an appellant on
orders that recalled him to active duty status after the military judge adjourns
the court-martial.
Specifically, neither Article 2, UCMJ, nor any other provision of the code
demands that a government official initiate, much less continue, active duty
orders to hold a servicemember for the duration of adjudged confinement. We
find support for this conclusion from the text of Article 2(d)(5), UCMJ. If the
order to active duty has been “approved by the Secretary concerned,” then such
member may “be sentenced to confinement” without more. Id. Members of a
reserve component who are sentenced to confinement become “[p]ersons in cus-
tody of the armed forces serving a sentence imposed by a court-martial” and
are subject to the UCMJ. Article 2(a)(7), UCMJ. It follows then that Appellant’s
recall to active duty status through adjournment is determinative of whether
it was lawful to confine Appellant after his court-martial ended. Action by the
SECAF approving the convening authority’s recall of Appellant to active duty
for trial by court-martial was enough for Appellant to be lawfully ordered to
serve confinement. All that the code requires is that a reservist be ordered to
active duty for a “preliminary hearing,” “trial by court-martial,” or “nonjudicial
punishment.” See Article 2(d)(1)(A)–(C), UCMJ. There is no similar provision
in the code that would require the Government to again recall an appellant or
take action to continue active status after a trial by court-martial has con-
cluded as a condition for confinement to be lawful.
We find the convening authority’s order directing Appellant to be recalled
to active duty for court-martial with the approval by the SECAF was sufficient
authority for the Government to lawfully confine Appellant after the court-
martial. This is not just a conclusion we draw from Article 2, UCMJ, but the
intention of the President that is most clearly stated in R.C.M. 202(c)(1): “Once
court-martial jurisdiction over a person attaches, such jurisdiction shall con-
tinue for all purposes of trial, sentence, and punishment, notwithstanding the
expiration of that person’s term of service or other period in which that person
was subject to the code or trial by court-martial.” (Emphasis added). Here, ju-
risdiction attached when the convening authority recalled Appellant to active
duty with the approval of the SECAF, and it continues through confinement
after Appellant’s order to active duty was curtailed.
16
United States v. Lull, No. ACM 39555
Although there is no apparent requirement under the code to maintain a
reservist on orders through the duration of confinement, the Government ex-
ercised authority under R.C.M. 204(b)(1), which provides that a reservist “may
be retained on active duty to serve any adjudged confinement.” R.C.M.
204(b)(1) (emphasis added). After the convening authority’s direction to defer
and waive forfeitures for the benefit of Appellant’s daughter, and consistent
with the terms of R.C.M. 204(b)(1), Maj AH signed two special orders with
identical fund cites that involuntarily recalled Appellant to active duty. The
parties agree that the purpose and effect of the first order was to obligate funds
to comply with Appellant’s deferment and waiver request that had been
granted by the convening authority. Appellant contends the second order, un-
like an AF Form 938 issued at the direction of the convening authority, effec-
tively placed Appellant in an active duty status without military benefits for
his dependent daughter.
Nonetheless, we find no basis in law or regulation for Appellant’s conten-
tion that the special orders Maj AH issued are void ab initio on grounds that
only a convening authority was authorized to order Appellant to active duty
for the duration of confinement. We also find no evidence that Appellant was
prejudiced even if he is correct. R.C.M. 204(b)(1) does not require the Govern-
ment to extend active duty orders to encompass periods of post-trial confine-
ment. This is so even “if the order to active duty was approved in accordance
with Article 2(d)(5),” as it was in Appellant’s case. Id. Rather, the Government
may do so in situations where the Government considers continuation of recall
to be necessary, as it was here to the extent that the convening authority di-
rected deferment and waiver of forfeitures. Although Appellant claims preju-
dice because the deferment and waiver of forfeitures were delayed, there is no
claim that the Government failed to eventually comply with the convening au-
thority’s direction and transfer funds to Appellant’s daughter. 23 We decline to
exercise our Article 66(c), UCMJ, authority to grant relief on the basis of the
Government’s delay in carrying out the convening authority’s intent.
Finally, Appellant has not shown prejudice to a right that this court has
jurisdiction to remedy or protect. Appellant claims prejudice because he did not
23Appellant again cites AFI 51-201, ¶ 2.14.7, for authority that the Government was
prohibited from curtailing his active duty status at the same time it required the con-
vening authority to fund his recall to active duty for the duration of confinement. See
Lull, opinion at *7–8. We agree with Appellant’s interpretation of the AFI. However,
we disagree with Appellant’s contention that noncompliance is jurisdictional, see
United States v. Bailey, 11 M.J. 730, 732, n.2 (A.F.C.M.R. 1981) (“[R]egulations cannot
diminish the effectiveness of jurisdiction mandated by Congress . . . .”); or that non-
compliance renders his confinement unlawful, or that he was prejudiced in a manner
that we have jurisdiction to enforce.
17
United States v. Lull, No. ACM 39555
receive pay and allowances or earn leave for the two-week period following his
court-martial, his dependent daughter was denied military medical benefits,
Appellant was placed in AWOL status in his civilian job, and he lost USERRA
protections that may have allowed him to return to work after serving his sen-
tence. Appellant’s basis for all but the first of these claims is not just that Con-
gress intended reservists to continue in an active duty status for the duration
of confinement—for which we find no support in the text of the code as dis-
cussed—but also that the intent of Congress was to provide protections for re-
servists and dependents while the reservist is confined, and reemployment
rights upon release.
Appellant provides no evidence to support these claims, much less a case
for congressional intent in the text of the UCMJ on which they depend. 24 Even
more consequential, each claim of prejudice concerns a matter not directly con-
nected to the approved sentence, and thus we are without jurisdiction to con-
sider them. Article 66(c), UCMJ, grants broad discretion to determine which
part of a sentence “should be approved.” While we agree that a Court of Crim-
inal Appeals (CCA) has considerable discretion, that discretion is not unlim-
ited. In United States v. Buford, we observed that Article 66(c), UCMJ, “does
not extend a CCA’s reach to all finance or personnel matters that may have
some link to a court-martial sentence.” 77 M.J. 562, 565 (A.F. Ct. Crim. App.
2017). We find Appellant’s claims of prejudice fall short of our jurisdiction to
consider them even if there was substantiation in the record that Appellant
actually suffered adverse consequences from having his active duty status cur-
tailed while confined. Appellant has similarly failed to present any evidence to
establish that any member of his command or other military official curtailed
his active duty status to increase the severity of his sentence and impose illegal
post-trial punishment. See id. at 566.
Thus, we hold that when confinement is adjudged, the UCMJ does not re-
quire a reservist to be recalled to active duty status for the duration of confine-
ment as a condition to being lawfully confined. Nonetheless, R.C.M. 204(b)(1)
allows for a reservist—and AFI 51-201 establishes a regulatory framework—
to be retained on active duty when the order to active duty was approved by
the Secretary of the Air Force as it was here. To the extent that AFI 51-201
may have required Appellant’s commander to authorize Appellant’s continued
activation while confined by issuing an AF Form 938, we find the special orders
24In the case of the Uniformed Services Employment and Reemployment Rights Act
(USERRA), entitlement to benefits terminates upon separation with a dishonorable
discharge. 38 U.S.C. § 4304(1).
18
United States v. Lull, No. ACM 39555
issued by Maj AH did not render Appellant’s confinement unlawful, and Ap-
pellant has not shown prejudice to a right that this court has jurisdiction to
remedy or protect.
b. Honorable Characterization of Service—DD Form 214
Appellant claims his honorable discharge effective 6 January 2018, also
renders his confinement unlawful; and, citing United States v. Watson, 69 M.J.
415 (C.A.A.F. 2011), Appellant claims his “honorable discharge remits his un-
executed dishonorable discharge,” and that this court should set aside the dis-
honorable discharge as an appropriate remedy. We are not persuaded by either
contention.
Appellant’s counsel mischaracterizes Appellant’s DD Form 214 as directing
Appellant’s “discharge” from the reserve component. In fact, the form substan-
tiates Appellant’s “release from active duty” upon his “completion of required
active service” as shown in blocks 23 and 28. 25 Appellant’s reliance on Watson
is misplaced because his circumstances are readily distinguishable from those
of an appellant whose commander issued an “Honorable Discharge” certificate
accompanied by an order discharging the appellant from a reserve component
that cited service separation policy. 69 M.J. at 421 (reversing decision that af-
firmed component of sentence that included dismissal).
As a matter of service regulation, the term “release from active duty” as
identified on Appellant’s DD Form 214 means “[e]nd of active duty status” and
applies to “Airmen of Reserve components who revert to inactive status in their
Reserve organizations” after serving in an active duty status. See AFI 36-3202,
Certificate of Release or Discharge from Active Duty (DD Form 214/5 Series),
Atch. 1, Terms (4 Dec. 2018). Reservists who have been discharged from a re-
serve component receive a DD Form 256, Honorable Discharge from the Armed
Forces of the United States of America. 26 Consequently, Appellant’s DD Form
214 does not operate to remit Appellant’s adjudged dishonorable discharge just
as his release from active duty status does not terminate jurisdiction. See Ar-
ticle 3(d), UCMJ, 10 U.S.C. § 803(d) (member of a reserve component “is not,
by virtue of the termination of a period of active duty . . . relieved from amena-
bility to the jurisdiction of this chapter for an offense against this chapter com-
mitted during such period of active duty . . . .”).
25Block 6 shows Appellant having a 31 July 2019 reserve obligation termination date
after his court-martial.
26There is no evidence before us that Appellant was issued a DD Form 256 with an
accompanying order directing his separation or discharge. See AFI 36-3209, Separation
and Retirement Procedures for Air National Guard and Air Force Reserve Members,
¶¶ 1.4.4.2, 1.5 (14 Apr. 2005 Incorporating Through Change 3, 20 Sep. 2011).
19
United States v. Lull, No. ACM 39555
Appellant has presented no evidence he was discharged from a component
of the Armed Forces, only that he was released from active duty status the day
after his court-martial adjourned with an honorable characterization of service
for the period beginning on 1 May 2017 through Appellant’s release from active
duty on 6 January 2018. Contrary to Appellant’s claim and understanding, the
DD Form 214 did not discharge Appellant from the reserve component effective
on 6 January 2018. We decline, therefore, to find Appellant’s confinement was
unlawful or set aside his adjudged dishonorable discharge on the basis of the
honorable characterization of his active duty service as reflected on DD Form
214.
C. Legal and Factual Sufficiency
1. Law
A Court of Criminal Appeals may affirm only such findings of guilty “as it
finds correct in law and fact and determines, on the basis of the entire record,
should be approved.” Article 66(c), UCMJ, 10 U.S.C. § 866(c). “Article 66(c) re-
quires the Courts of Criminal Appeals to conduct a de novo review of legal and
factual sufficiency of the case.” United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002) (citation omitted). Our assessment is limited to the evidence
produced at trial. United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993) (cita-
tions omitted).
“The test for legal sufficiency is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” United
States v. Robinson, 77 M.J. 294, 297–98 (C.A.A.F. 2018) (quoting United States
v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017)). “The term reasonable doubt, how-
ever, does not mean that the evidence must be free from conflict.” United States
v. Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (citing United States v.
Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986)), aff’d, 77 M.J. 289 (C.A.A.F. 2018).
“[I]n resolving questions of legal sufficiency, we are bound to draw every rea-
sonable inference from the evidence of record in favor of the prosecution.”
United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citations omitted).
The test for factual sufficiency is “whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, [we are ourselves] convinced of the [appellant]’s guilt beyond a
reasonable doubt.” United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). “In
conducting this unique appellate role, we take ‘a fresh, impartial look at the
evidence,’ applying ‘neither a presumption of innocence nor a presumption of
guilt’ to ‘make [our] own independent determination as to whether the evidence
constitutes proof of each required element beyond a reasonable doubt.’”
20
United States v. Lull, No. ACM 39555
Wheeler, 76 M.J. at 568 (alteration in original) (quoting Washington, 57 M.J.
at 399).
2. Analysis
a. Sexual Assault
As charged in Specification 1 of Charge I, Appellant was convicted of sexual
assault by bodily harm in violation of Article 120(b)(1)(B), UCMJ, 10 U.S.C.
§ 920(b)(1)(B), which required the Government to prove two elements beyond
a reasonable doubt: (1) that Appellant committed a sexual act upon NB by pen-
etrating her vulva with his penis; and (2) that Appellant did so by causing bod-
ily harm to NB, to wit: penetrating her vulva with his penis. See Manual for
Courts-Martial, United States (2016 ed.) (MCM), pt. IV, ¶ 45.b.(3)(b). “‘[B]odily
harm’ means any offensive touching of another, however slight, including any
nonconsensual sexual act.” MCM, pt. IV, ¶ 45.a.(g)(3). With regard to consent,
the statute explains,
The term “consent” means a freely given agreement to the con-
duct at issue by a competent person. An expression of lack of
consent through words or conduct means there is no consent.
Lack of verbal or physical resistance or submission resulting
from the use of force, threat of force, or placing another person
in fear does not constitute consent. A current or previous dating
or social or sexual relationship by itself or the manner of dress
of the person involved with the accused in the conduct at issue
shall not constitute consent.
MCM, pt. IV, ¶ 45.a.(g)(8)(A). The statute also explains that “[a] sleeping, un-
conscious, or incompetent person cannot consent.” MCM, pt. IV, ¶
45.a.(g)(8)(B). “Lack of consent may be inferred based on the circumstances of
the offense. All the surrounding circumstances are to be considered in deter-
mining whether a person gave consent, or whether a person did not resist or
ceased to resist only because of another person’s actions.” MCM, pt. IV, ¶
45.a.(g)(8)(C).
Appellant and NB met and began dating after a squadron Christmas party
in early December 2014. On Christmas Day, Appellant and NB were guests at
a dinner party in his neighbor’s home. NB and Appellant flirted throughout
the evening, and NB sent Appellant sexually charged text messages that she
testified were “meant for humor.” After midnight, NB sent Appellant a “meme”
of a provocatively sketched woman telling a man, “ALL I want for Christmas
is a hug that results in wild sex.” Appellant texted back, “Can I give you a hug?”
and NB replied, “Y[es].” NB testified she found the text messages funny and
denied they meant that she wanted to have sex with Appellant.
21
United States v. Lull, No. ACM 39555
NB intended to spend the night at the neighbor’s house and put a change
of clothes for the next day in a spare bedroom. She had arrived early and helped
prepare the food, and drank what she described was “an excessive amount” of
alcohol starting with shots and mixed drinks, and then wine and sangria. As
the night went on, NB “essentially black[ed] out and only [had] clips of what
went on.” NB was observed having trouble talking, she was nodding off at the
dinner table, and went to the bathroom to vomit. A guest who assisted NB in
the bathroom observed that NB could not express “full thoughts in full sen-
tence[s].” In contrast to NB, Appellant appeared to be sober throughout the
evening. Toward the end of the party, NB became emotional and was crying,
and initially tried to drive home. Appellant helped her walk across the street
to his house because she was unable to walk without assistance due to the
amount of alcohol she consumed. Appellant’s neighbor watched Appellant as-
sist NB by putting his arm around her waist.
The next thing NB remembered was being on her hands and knees, and
Appellant was behind her and penetrating her vagina with his penis. NB tes-
tified she was confused and not completely aware of what was happening, and
“didn’t know what to think of [Appellant] at that point [be]cause [she] thought
[she] could trust him.” Although they had been sexually intimate with each
other earlier in the relationship, NB testified it was the first time Appellant
engaged her in sexual intercourse. In the morning, NB awoke in Appellant’s
bed and both were naked. Appellant asked “are you okay, because it seems like
you didn’t want that last night?” NB felt the situation was “so surreal, and
[she] rolled over because [she] was just trying to understand what happened.”
Later that morning, NB sent a text message to Appellant asking, “[D]id u enjoy
f**king me,” and Appellant replied, “Did you enjoy it? It seemed like you didn’t
want me to . . . .” Several hours later NB replied, “Yes.”
After NB testified, the Government called PH, Appellant’s previous inti-
mate partner who dated Appellant between the summer of 2013 and spring of
2014, to testify about acts of nonconsensual sexual intercourse with Appellant
during their relationship. PH acknowledged there were various times she and
Appellant were intimate, and she wanted him to stop because intercourse was
painful or uncomfortable. She would “tell [Appellant] to stop, [and] that it was
hurting,” but he would continue “[u]ntil he came.” The military judge admitted
this evidence under Mil. R. Evid. 413. 27
27After PH testified, the military judge instructed the members that her testimony
was for a limited purpose, and that he would give them specific instructions later. After
the close of evidence, he instructed that evidence Appellant may have committed sex-
ual offenses against PH may be considered for its bearing on any matter to which it
22
United States v. Lull, No. ACM 39555
Appellant contends that NB, while impaired by her consumption of alcohol,
was not incapable of consenting due to intoxication, and thus Appellant’s con-
viction is legally and factually insufficient. For support, he argues NB was en-
gaged in sex with Appellant on her hands and knees, and because she was
supporting her own weight, Appellant could not have committed the act with-
out her participation and, thus, consent. Further, Appellant argues there was
no evidence NB revoked consent or objected when she realized she was having
sex with Appellant; and evidence that NB had initiated a text conversation
about their encounter later that morning demonstrates she had a memory of
the sexual encounter, and by inference, that she was sufficiently aware to be
capable of consenting.
The sufficiency of the conviction for sexual assault turns on whether the
Government proved beyond a reasonable doubt that NB did not consent to sex
on the night of the Christmas dinner. We find the circumstances demonstrate
that a rational factfinder could have found no “freely given agreement to the
conduct at issue by a competent person.” MCM, pt. IV, ¶ 45.a.(g)((8)(A). NB
was falling asleep at the dinner table, slurring her words, required assistance
to throw up in the bathroom, and required Appellant’s assistance in walking
to his home. We also consider that Appellant was charged with assaulting NB
by causing her bodily harm—and not by assaulting her while she was incapa-
ble of consenting—which means the question is not if NB could consent, but if
she did consent. On these facts, a rational factfinder could have found that
Appellant did not have NB’s freely given agreement to sexual intercourse, and
thus the Government proved the offense of sexual assault beyond a reasonable
doubt.
If shown by some evidence, mistake of fact as to consent is a defense to
sexual assault. See R.C.M. 916(j)(1). It requires that an appellant, due to igno-
rance or mistake, incorrectly believed that another consented to the sexual con-
duct. See id. To be a viable defense, the mistake of fact must have been honest
and reasonable under all the circumstances. See id.; see also United States v.
Jones, 49 M.J. 85, 91 (C.A.A.F. 1998) (quoting United States v. Willis, 41 M.J.
435, 438 (C.A.A.F 1995)). A rational factfinder could find Appellant’s text mes-
sage to NB after the sexual assault, and PH’s testimony admitted under Mil.
R. Evid. 413, was sufficient to prove Appellant was not reasonably mistaken
as to consent.
was relevant, to include its tendency, if any, to show that Appellant had a propensity
to engage in sexual offenses, but that evidence of another sexual offense on its own was
insufficient to find Appellant guilty of sexual assault of NB.
23
United States v. Lull, No. ACM 39555
Viewing the evidence in the light most favorable to the Prosecution, we find
that a rational factfinder could have found Appellant guilty beyond a reasona-
ble doubt of all the elements of the offense of sexual assault as charged in Spec-
ification 1 of Charge I, and that the evidence is legally sufficient to support
Appellant’s conviction. Having weighed the evidence in the record and made
allowances for not having personally observed the witnesses, we also conclude
the evidence is factually sufficient and are convinced of Appellant’s guilt be-
yond a reasonable doubt. Therefore, we find Appellant’s conviction both legally
and factually sufficient
b. Stalking
As charged in the sole specification of the Additional Charge, Appellant was
convicted of stalking NB, in violation of Article 120a, UCMJ, which required
the Government to prove three elements beyond a reasonable doubt: (1) that
Appellant wrongfully engaged in a course of conduct directed at NB, in that he
repeatedly maintained visual and physical proximity to her home and place of
work and conveyed threats by words and conduct 28 that would cause a reason-
able person to fear bodily harm to herself or members of her immediate family;
(2) that Appellant knew or should have known that NB would be placed in
reasonable fear of bodily harm to herself or members of her immediate family;
and (3) that Appellant’s acts induced such fear in NB. See MCM, pt. IV, ¶ 45a.b.
“The term ‘repeated,’ with respect to conduct, means two or more occasions of
such conduct.” MCM, pt. IV, ¶ 45a.a.(b)(2). The term “immediate family” in-
cludes a “sibling of the person.” MCM, pt. IV, ¶ 45a.a.(b)(3).
NB’s home was a second-floor apartment about 40 minutes from Appel-
lant’s house and only a mile from a federal facility where she worked. Begin-
ning in January or early February 2015, Appellant would stand in a courtyard
and look for shadows on her kitchen, dining room, and living room windows to
see if NB was alone. Appellant entered her apartment “a few times after he
thought he witnessed [NB] with somebody else” and told NB he was watching
her. In addition, Appellant sat in his truck outside of NB’s place of work or
28In a separate assignment of error raised for the first time on appeal, Appellant claims
the specification fails to state an offense because it does not allege that Appellant’s acts
were directed “to a specific person.” We disagree and find no merit to the issue. The
“course of conduct” charged by the Government essentially duplicates and combines
two different statutory definitions for the term, to wit: “repeated maintenance of visual
or physical proximity to a specific person,” or “a repeated conveyance of verbal threat,
written threats, or threats implied by conduct, or a combination of such threats, di-
rected at or toward a specific person.” MCM, pt. VI, ¶ 45a.a.(b)(1). The specification
either expressly or by necessary implication includes every element of the offense, to
include that Appellants acts were directed at NB. See United States v. Tuner, 79 M.J.
401, 403 (C.A.A.F. 2020).
24
United States v. Lull, No. ACM 39555
along an adjacent highway where Appellant could see if NB was at work, and
whom she was with when she left. There were occasions when security person-
nel at the facility would call NB at work and tell her that Appellant was in the
parking lot, and that she needed to tell Appellant to leave because he was
parked on private property. NB testified that one time she went to the parking
lot to tell Appellant to leave because he was on federal property, and Appellant
told her “he can go wherever he wanted to” because “he was DoD.” Seeing Ap-
pellant parked at her place of work made NB scared, and she “felt hopeless
because [she] couldn’t get away.”
Appellant frequently sat in his black pickup truck outside NB’s apartment
to see if she was alone and if she brought anyone home with her when she left
work. NB described sitting in her living room watching TV and being aware of
Appellant’s presence from the sound of his truck engine idling in the parking
lot. The sound was “chilling” and “[her] stomach would ache knowing he was
there.” 29 Out of concern for her safety, NB set up an emergency plan with a
coworker who lived five minutes down the road and could come to her home if
she needed help. NB’s neighbor told NB he was concerned for her safety be-
cause he often saw a man watching her from inside a black pickup truck parked
outside her apartment. The manager of the apartments testified that NB once
told her about a gentleman with whom she had been in a relationship and
“[was] having difficulties,” who was “watching her apartment” while parked
across the street at a business and “possibly even in the parking lot of the
[apartment] property.” NB asked the manager to keep an eye out for Appel-
lant’s vehicle.
NB described an incident in January or February 2015 when NB’s sister
and her three young sons stayed overnight at NB’s home. While NB and her
sister stayed up late talking and watching TV as the children slept, NB heard
Appellant’s truck once more, and she ran to look outside her bedroom window.
As soon as NB saw Appellant, she gave her sister the phone to call NB’s
coworker and heard a loud banging at her door. Appellant was yelling, “who
the f[**]k’s in there? I know you’re with another f[**]king guy, who is he[?]”
and tried “to push the door in” and gain access to her home. NB pushed back
at first, but then quickly stepped out of her apartment and told her sister to
lock the door behind her. When Appellant left and NB came back inside she
found her sister was so frightened by Appellant’s behavior that she was holding
29NB testified she “was afraid of the presence that that truck brought.” On cross-ex-
amination, trial defense counsel illustrated the complexity of NB’s relationship with
Appellant; later in the relationship, NB told Appellant she missed riding in the truck
and sent the text, “Every truck I hear[,] I hope it’s you.”
25
United States v. Lull, No. ACM 39555
a 12-inch knife to protect herself and her children in the event that Appellant
made his way into the apartment.
NB’s sister witnessed Appellant’s attempt to force entry into NB’s home,
and her testimony was consistent with NB’s testimony on all material points.
She heard the intruder yelling “really loud,” “I know you’re in there F-ing some-
one. Who the F . . . are you with?” NB’s sister “was scared to death. [Her] heart
was pounding out of [her] chest,” and she was afraid that she, her children and
NB would be harmed. She explained that NB had told her about Appellant’s
behavior and NB “would get really stressed out and anxious” when she heard
the sound of Appellant’s truck. NB had dismissed her sister’s suggestions to
report Appellant’s abuse or end the relationship “because [NB] thought he was
going to come after her if she tried to take preventative measures.”
The coworker with whom NB set up an emergency plan recalled the night
he received a phone call from NB’s sister who “sounded very distraught” as she
related that someone “was trying to break into” NB’s apartment. After he re-
ceived the call he got into his vehicle and headed straight to NB’s apartment,
but by the time he arrived the individual had left. The coworker had a “very
high” opinion of NB’s character for truthfulness, and though he had never met
much less confronted Appellant, he “knew him by his truck,” “[a] black pickup
with tinted windows” that NB told the coworker would follow her to and from
work. The coworker recognized a picture of Appellant’s truck shown to him by
trial counsel that looked like the truck he saw “[f]our or five times” along the
side of the road that runs by the federal facility where he and NB worked.
NB disclosed Appellant’s behavior, including the incident that NB’s sister
witnessed in NB’s home, to Appellant’s neighbor with whom NB was friends.
The neighbor recalled NB telling her “there was an incident at [NB’s] apart-
ment where they were arguing, and [NB] was trying to shut the door, and [Ap-
pellant] pushed his way in.” The neighbor also testified that NB mentioned to
her several times “that there were occasions where [NB] would be coming out
of work and [Appellant] would be there” even though they had no plans to meet.
“And then a fight would ensue that she was cheating on him with whomever
she was walking out with.”
By the time of the incident witnessed by NB’s sister, NB had “tried to leave
[Appellant] multiple times but [Appellant] made it clear to [NB] that [she]
d[id]n’t get to make that call and it would be his choice for [their] relationship
to end.” NB “went along with this because every time [she] would try to end
[their] relationship [Appellant] would increase the harassment.” She testified
it was less stressful and scary to stay in a relationship with Appellant, to do
what he said for her to do, and act how he wanted her to act, “because his anger
was so out of control and [she] couldn’t handle the harassment and abuse any-
more.” NB also stayed with Appellant because she loved him. She “wanted to
26
United States v. Lull, No. ACM 39555
believe the best in him” and “wanted him to be the person that [she] thought
he was.” “And so, it just came to a point where staying with him, playing along,
keeping him happy, was the easiest way to survive for [her].”
Evidence at trial from multiple witnesses corroborated key aspects of NB’s
account of Appellant’s conduct and resolutely established that Appellant com-
mitted the charged stalking offense beyond a reasonable doubt. A rational fact-
finder could find implied threats to do harm during the incident in which Ap-
pellant tried to push his way into NB’s home, incensed by an unwarranted be-
lief that NB was with another man. A factfinder might find that Appellant
conveyed threats by words and conduct on this occasion that caused NB to fear
bodily harm not just to herself, but also to her sister who met the statutory
definition of a member of NB’s immediate family.
Appellant contends the Government’s proof fails because there was “only
one time that Appellant came to NB’s apartment uninvited,” and that proof of
the offense requires a demonstration that Appellant’s acts were repeated,
meaning they were done on two or more occasions. Appellant argues the one
time Appellant tried pushing his way into NB’s home belies repeated acts in a
course of conduct that are necessary to prove stalking. However, the “physical
proximity” the Government proved reached beyond the exterior door to NB’s
apartment but still close enough that NB frequently identified Appellant or his
truck in the parking lot or courtyard from the windows of her home, or when
he parked along the highway or in the parking lot at her place of work. 30 NB
testified that on some occasions Appellant acknowledged watching her, and he
would enter her home if he believed she had a visitor. The testimonies of NB’s
sister, coworker, the apartment manager, and Appellant’s neighbor lend cre-
dence to NB’s testimony that Appellant frequently parked his truck near NB’s
home and place of work and watched for signs that NB was with others. On
these facts a rational factfinder would have little difficulty finding Appellant’s
conduct was repeated.
The evidence given by the four witnesses also lend credence to NB’s testi-
mony that Appellant’s acts induced reasonable fear in NB of bodily harm to
herself and her sister. Further, a rational factfinder could infer that Appellant
30 Appellant contends on appeal that it was “impossible for Appellant to maintain ‘vis-
ual or physical’ proximity to NB when she was inside” her workplace, “and there was
no evidence of the distance of Appellant’s location to the facility” where she worked.
Even so, a rational factfinder could find Appellant’s presence within sight, and near
the location, of her workplace when she was arriving or leaving was sufficient proxim-
ity without proof of the actual distance of Appellant’s parked truck. It stands to reason
that actual distance is just one measure of proximity. NB and her coworker testified
about specific locations where they observed Appellant’s parked truck, which is suffi-
cient.
27
United States v. Lull, No. ACM 39555
knew or should have known that NB would be placed in such fear. Appellant
contends that NB’s decision to confront Appellant face-to-face outside the
safety of her apartment after instructing her sister to lock the door behind her
shows that “NB was not a ‘reasonable’ person, and therefore was not ‘reasona-
bly’ in fear of death or bodily harm.” Appellant also contends the Government’s
proof is undermined by evidence that NB continued to date Appellant and seek
an exclusive relationship with him. We disagree that either contention affects
legal or factual sufficiency. A rational factfinder would not have misgivings
about NB’s explanation that she confronted Appellant outside her home be-
cause she “wanted [Appellant] away from [her] nephews, and [she] would ra-
ther be outside [her home] than him inside where [her] family was.” We decline
to accept Appellant’s reasoning that NB showed no fear for her personal safety
by confronting Appellant in the manner she did. The fundamental flaw in Ap-
pellant’s reasoning is that it mistakes courage for absence of fear. 31 A rational
factfinder could understand NB’s testimony that she both loved and feared Ap-
pellant, and that she felt safer remaining in, rather than ending, an abusive
and controlling relationship.
Lastly, Appellant argues the Government failed to prove Appellant’s con-
duct was “wrongful” because Appellant did not trespass at NB’s apartment
complex, and they continued to communicate and spent time together during
the charged timeframe. We are not persuaded either circumstance provides
legal justification or authorization for Appellant’s conduct or defeats the Gov-
ernment’s proof that Appellant’s conduct was wrongful. More generally, we are
not convinced by the argument that a conviction for stalking cannot be main-
tained if an appellant is “in a place he was legally allowed to be, which makes
his conduct not ‘wrongful,’” as Appellant contends it should.
If Appellant’s contentions were true, a person subject to the UCMJ would
escape accountability for crimes requiring proof of a wrongful act committed in
a place he is legally allowed to be, such as his home, at work, or in a public
place. It seems highly unlikely that Congress, in requiring the Government to
prove an appellant had no legal justification or authorization for his acts, in-
tended to preclude commanders from disciplining conduct in all but the nar-
rowest of circumstances. If Appellant’s contention was correct, only a tres-
passer could be held to account for wrongful acts. However, we need look no
further than the statutory element that Congress requires the Government to
prove here: a “course of conduct directed at a specific person.” Proof of a course
of conduct does not also require proof of trespass, and there is no statutory
defense that apparent lawful presence and due regard for the legal rights of
31“Bravery is the capacity to perform properly even when scared half to death.” Omar
N. Bradley.
28
United States v. Lull, No. ACM 39555
third parties while engaged in acts constituting a proscribed course of conduct
against a specific person are exonerating. We are not at liberty to give new
meaning to a term used in an element of an offense beyond its clear, statutorily
supplied definition, and we decline to do so now. See United States v. Lee, 2017
CCA LEXIS 185, at *15–16 (A.F. Ct. Crim. App. 14 Mar. 2017) (unpub. op.)
(citation omitted) (rejecting application of Fourth Amendment doctrine to de-
fine “reasonable expectation of privacy” in Article 120c, UCMJ, different from
its statutory definition). Thus, we reject Appellant’s contention that his actions
were legally justified or authorized and not wrongful.
Viewing the evidence in the light most favorable to the Prosecution, we find
that a rational factfinder could have found Appellant guilty beyond a reasona-
ble doubt of all the elements of the offense of stalking as charged in the Speci-
fication of the Additional Charge, and that the evidence is legally sufficient to
support Appellant’s conviction. Having weighed the evidence in the record and
made allowances for not having personally observed the witnesses, we also
conclude the evidence is factually sufficient and are convinced of Appellant’s
guilt beyond a reasonable doubt. Therefore, we find Appellant’s conviction both
legally and factually sufficient.
c. Assault Consummated by a Battery
As charged in Specification 1 of Charge II, Appellant was convicted of as-
sault consummated by a battery of NB in violation of Article 128, UCMJ, which
required the Government to prove two elements beyond a reasonable doubt: (1)
that Appellant did bodily harm to NB, and (2) the bodily harm was done to NB
with unlawful force or violence by strangling her with his arm. See MCM, pt.
IV, ¶ 54.b.(2); see also United States v. Johnson, 54 M.J. 67, 69 (C.A.A.F. 2000).
To constitute an offense, the act “must be done without legal justification or
excuse and without the lawful consent of the person affected.” MCM, pt. IV, ¶
54.c.(1)(a). “‘Bodily harm’ means any offensive touching of another, however
slight.” Id.In January 2015, Appellant and NB watched TV while sitting on a couch
in NB’s apartment as NB drank a second glass of wine. As NB lay down with
her head on Appellant’s lap, and without apparent provocation, Appellant slid
his right arm around NB’s neck and grabbed onto his arm with his left hand
in a chokehold, tightening his grip. NB felt Appellant choking her and grabbed
for Appellant’s hand before she passed out. When NB came to, she had urinated
on the couch and was terrified “because [she] didn’t know what happened.”
Appellant asked NB, “[W]hat did you do[?]” and tried to make NB “believe it
was [her] fault because [she] drank two glasses of wine.” NB “couldn’t figure it
out because [Appellant] was saying that [she] drank too much,” but she “knew
[she] hadn’t,” and the incident “just happened so fast.” NB got up from the
29
United States v. Lull, No. ACM 39555
couch and ran to the bedroom because she “didn’t want [Appellant] to hear
[her] because [she] was scared.”
As part of its proof, trial counsel elicited testimony from the same coworker
who responded to the incident when Appellant tried to push his way into NB’s
apartment. The coworker testified he asked NB about bruises he saw around
her neck as well as on other parts of her body. 32 NB told him the bruises around
her neck were from when “she got choked out” by her boyfriend, and NB was
“very distraught” as she related to him what had happened. The coworker en-
couraged NB to report Appellant’s conduct to the police but NB told him “she
couldn’t because [Appellant] had friends at the police department.”
Trial counsel also introduced evidence under Mil. R. Evid. 404(b) of an in-
cident almost a year later in December 2015 in which the factfinder could con-
clude that Appellant strangled NB when he stood behind her in a shower and
NB passed out and fell to the floor. In addition, Appellant’s previous intimate
partner, PH, testified to incidents of Appellant strangling her until she passed
out during sexual activities with Appellant that were also admitted under Mil.
R. Evid. 404(b).
Appellant argues the evidence is insufficient because NB was not a credible
witness and “[t]here was no independent, objective evidence corroborating her
claim that Appellant put her in a ‘chokehold.’” Appellant contends there are no
text messages from NB in which she accuses Appellant of choking her, and
argues that NB “conflated” the January 2015 allegation that was charged with
her allegation that Appellant choked her in the shower in December 2015. In
the alternative, Appellant argues for the first time on appeal that because
there were inmates at the federal facility where she worked, “NB needed to
improve her use of force skills in repelling threats.” Appellant further con-
tends, “If Appellant did in fact put her in a ‘chokehold,’ the evidence suggests
he did so for the purpose of helping her improve her use of force skills to protect
herself at work,” which provides legal justification for Appellant’s action in
strangling NB as she lay on the couch in her home.
We conclude a reasonable factfinder would find NB’s testimony and the
supporting evidence both probable and convincing beyond a reasonable doubt.
NB’s testimony was proof of each of the elements of the offense, to include that
Appellant did bodily harm to NB with unlawful force or violence by strangling
her with his arm. Other evidence lends support to her testimony and proof of
the charged offense, including the coworker’s testimony that he observed
32NB’s coworker testified he saw the bruises “towards the end” of the two years that
NB worked at the federal facility, which was around the time “when she was getting
ready to leave.” NB’s testimony established she left around mid-March 2015.
30
United States v. Lull, No. ACM 39555
bruises around NB’s neck, and NB’s explanation to her coworker that the
bruises were caused by her boyfriend who choked her. NB had no difficulty
distinguishing the charged incident when she lay on the couch in her home
watching TV and drinking wine from the uncharged incident when Appellant
choked her from behind in a shower at a school where she was attending train-
ing. There is no evidence in the record, much less any reasonable inference
from the evidence, that Appellant’s purpose was to improve NB’s skill in pro-
tecting herself from inmates, or that NB was aware of such an unlikely purpose
and consented to being strangled. The evidence admitted under Mil. R. Evid.
404(b) made it more probable that Appellant’s intent and motive was to assert
physical control and dominance and not the benevolent purpose Appellant con-
ceives in his appeal.
Viewing the evidence in the light most favorable to the Prosecution, we find
that a rational factfinder could have found Appellant guilty beyond a reasona-
ble doubt of all the elements of the offense of assault consummated by a battery
as charged in Specification 1 of Charge II, and that the evidence is legally suf-
ficient to support Appellant’s conviction. Having weighed the evidence in the
record and made allowances for not having personally observed the witnesses,
we also conclude the evidence is factually sufficient and are convinced of Ap-
pellant’s guilt beyond a reasonable doubt. Therefore, we find Appellant’s con-
viction both legally and factually sufficient.
D. Admissibility of Uncharged Acts under Mil. R. Evid. 404(b)
Appellant challenges the military judge’s rulings denying his motion to
suppress various instances of Appellant’s conduct with NB, and with a prior
intimate partner, PH, that were admitted as a crime, wrong, or other act under
Mil. R. Evid. 404(b). We find the military judge did not clearly abuse his dis-
cretion in admitting this evidence.
1. Law
A military judge’s ruling under Mil. R. Evid. 404(b) and Mil. R. Evid. 403
will not be disturbed except for a clear abuse of discretion. United States v.
Morrison, 52 M.J. 117, 122 (C.A.A.F. 1999) (citation omitted). “A military judge
abuses his discretion when: (1) the findings of fact upon which he predicates
his ruling are not supported by the evidence of record; (2) if incorrect legal
principles were used; or (3) if his application of the correct legal principles to
the facts is clearly unreasonable.” United States v. Ellis, 68 M.J. 341, 344
(C.A.A.F. 2010) (citing United States v. Mackie, 66 M.J. 198, 199 (C.A.A.F.
2008) (per curiam)).
Mil. R. Evid. 404(b) provides that evidence of a crime, wrong, or other act
by a person is not admissible as evidence of the person’s character in order to
31
United States v. Lull, No. ACM 39555
show the person acted in conformity with that character on a particular occa-
sion, and cannot be used to show predisposition toward crime or criminal char-
acter. However, such evidence may be admissible for another purpose, includ-
ing to show motive, intent, plan, absence of mistake, or lack of accident. Mil.
R. Evid. 404(b)(2); United States v. Staton, 69 M.J. 228, 230 (C.A.A.F. 2010)
(citation and footnote omitted). The list of potential purposes in Mil. R. Evid.
404(b)(2) “is illustrative, not exhaustive.” United States v. Ferguson, 28 M.J.
104, 108 (C.M.A. 1989).
We apply a three-part test to review the admissibility of evidence under
Mil. R. Evid. 404(b): (1) Does the evidence reasonably support a finding by the
factfinder that Appellant committed other crimes, wrongs, or acts? (2) Does the
evidence of the other act make a fact of consequence to the instant offense more
or less probable? and (3) Is the probative value of the evidence of the other act
substantially outweighed by the danger of unfair prejudice under Mil. R. Evid.
403? United States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989). 33 “If the evi-
dence fails to meet any one of these three standards, it is inadmissible.” Id.
2. Analysis
The military judge allowed the Government to introduce evidence of Appel-
lant’s acts under Mil. R. Evid. 404(b), and explained his decision in a written
ruling. On appeal, Appellant challenges admission of evidence that he (1)
strangled NB a second time later in the year when he was behind her in the
shower; (2) made statements to others about being married to NB; (3) concealed
his identity when he made “spoofed” phone calls to NB; and (4) choked PH and
entered her residence without permission. We consider each challenge in turn.
a. Strangling NB in December 2015
Trial counsel introduced evidence of an incident during the Christmas hol-
iday in December 2015 when Appellant strangled NB in the shower at an in-
residence school that NB attended in Georgia. Evidence showed the incident
occurred just over ten months after the timeframe charged by the Government
for the offense of unlawfully strangling NB that was charged as assault con-
summated by a battery. NB made a statement to a classmate shortly after it
happened, which resulted in the classmate reporting Appellant’s conduct to an
33Appellant contends that a military judge must articulate consideration of eight Berry
factors in testing for legal relevance under Mil. R. Evid. 403 and the third prong of
Reynolds, and that the military judge’s failure to do so in Appellant’s trial “renders his
conclusions of law erroneous.” See United States v. Berry, 61 M.J. 91, 95–96 (C.A.A.F.
2005); United States v. Wright, 53 M.J. 476, 482 (C.A.A.F. 2000)). We find the military
judge’s reasoned analysis on the record satisfies Mil. R. Evid. 403, and we decline to
find error on the basis that the military judge was obligated to articulate each of the
non-exhaustive Berry/Wright factors in his ruling.
32
United States v. Lull, No. ACM 39555
instructor at the school, and precipitated an investigation of Appellant’s con-
duct with NB.
The evidence showed that Appellant visited NB during a break in her law
enforcement training for the Christmas holiday. During Appellant’s visit, they
took an overnight trip to Florida and, according to NB, they “argued the whole
time” “about everything.” When they returned to Georgia and were both relax-
ing in bed watching TV in her dorm room, NB went to take a shower and Ap-
pellant followed her to the bathroom. As Appellant stood behind her in the
shower, he put his right arm around her neck and grabbed onto his arm with
his left hand and “clinched in tight.” NB “felt pressure” and “began to panic.”
She collapsed “unconscious” to the ground as she reached to grab Appellant’s
arm with her hands. When she regained awareness, the water was turned off
and she lay on the shower floor as Appellant stood over her. NB was “absolutely
terrified,” relating she had heard stories about “how your life flashes before
your eyes” “when you’re dying,” “and that’s exactly what . . . had happen[ed]”
to her.
NB got out of the shower, fell to the bathroom floor, and cried. She testified
at trial that Appellant “was just laughing, [and] so proud of himself,” describ-
ing how she had “la[in] on the ground convulsing.” NB told Appellant she could
not understand why he did that. Appellant replied he wanted to show her that
“he was capable of taking [her] life” “if he ever wanted too [sic],” but also “knew
[she] wouldn’t die.” Appellant also told her that if she was not scared from what
she saw in her head when she was passed out then she “should probably try to
go see a psychiatrist because [she] probably ha[s] issues.”
NB was afraid to report Appellant’s conduct to the police, explaining in her
testimony at trial that she “just tried to make it better—just tr[ied] to make
[Appellant] happy. . . . [and] to get away from the negative. As long as he’s
happy, life is easy.” Despite her apprehension, NB shared details of the inci-
dent with a classmate whose testimony was admitted as a prior consistent
statement. The classmate related how Appellant “attacked her while she was
taking a shower, and he choked her from behind.” Appellant “was standing
over top of her and said that he had that much control over her and that he
could end his life or her life whenever he wanted.” The classmate described NB
was “pretty distraught,” “upset,” “shaken,” and “obviously affected by” what
happened to her. Although NB “didn’t want to bring her personal life into the
training environment in the school that [they] were in,” the classmate reported
the incident to one of their instructors at the school, which initiated an inves-
tigation.
The military judge allowed the Government to introduce evidence under
Mil. R. Evid. 404(b) that in December 2015 Appellant strangled NB in the
shower and then communicated a threat against her life. Applying the first
33
United States v. Lull, No. ACM 39555
Reynolds prong—whether the evidence reasonably supports a finding by the
factfinder that Appellant engaged in other acts—the military judge found “suf-
ficient evidence to support a finding by a panel that [Appellant] committed this
act.” We find the military judge’s fact-finding on the first Reynolds prong was
supported by the evidence of record including a prior consistent statement NB
made to a classmate. Thus, we conclude that the military judge properly ap-
plied the first Reynolds prong.
Applying the second Reynolds prong—whether evidence of the other acts
makes a fact of consequence to the instant offenses more or less probable—the
military judge found that the choking incident in December made it more prob-
able that Appellant “had the intent and motive to exercise physical control and
dominance over NB” for the charged offense of assault consummated by a bat-
tery early in their relationship when Appellant allegedly strangled NB as she
lay on a couch with her head in his lap. The military judge further found that
the later incident in December showed a “common technique to the charged
incident” and that it “also tend[ed] to support NB[’]s statements regarding her
fear of the accused.”
The military judge correctly applied the second Reynolds prong. A fact of
consequence in this litigated case was whether Appellant did bodily harm to
NB with unlawful force or violence. See MCM, pt. IV, ¶ 54.b.(2). As discussed
earlier, “‘[b]odily harm’ means any offensive touching of another, however
slight.” MCM, pt. IV, ¶ 54.c.(1)(a). Appellant’s defense at trial was that NB
fabricated the incident of Appellant choking her as she lay on a couch. The
Defense essentially argued that the members should find the incident was im-
probable because it was unusual. 34 Consequently, evidence that Appellant
wanted to show NB that he was capable of ending her life provided a motive
for why Appellant committed the charged offense under circumstances in
which the factfinder might otherwise conclude there was no apparent provoca-
tion or reason. The December incident was further evidence of Appellant’s in-
tent to exert control and dominance over NB when they were together. Thus,
34 Later in findings argument, Appellant defended against the charged offense of as-
sault consummated by a battery by challenging NB’s credibility and sowing doubt that
her account of what Appellant did to her was believable. The Defense remarked how
“[i]t is early in the relationship,” the two were supposedly just “sitting on the couch
watching stuff, and [Appellant] just randomly does it to exercise control.” The Defense
characterized NB’s account of what Appellant did to her as “[o]ut of nowhere,” “bi-
zarre,” and “some sort of like exhibition of dominance.” The Defense implied that NB’s
account was dubious and unconvincing by rhetorically asking, “So, [Appellant] chokes
her to show that [he] can control her?” The Defense suggested that “[t]here is no actual
evidence of this event. There [are] no photographs of injuries. There is no medical evi-
dence.”
34
United States v. Lull, No. ACM 39555
evidence that Appellant strangled NB in December when a motive was evident
strengthened the inference that Appellant committed an offensive touching
with unlawful force or violence and made the act underlying the charged of-
fense earlier in their relationship more probable. See, e.g., United States v.
Watkins, 21 M.J. 224, 227 (C.M.A. 1986) (holding prior acts are admissible
which reasonably could be viewed as “the expression and effect of the existing
internal emotion” and “the same motive [is] shown to have existed in appellant
at the time of the subsequently charged acts”).
Applying the third Reynolds prong, which the military judge found was the
most critical prong, the military judge determined that the probative value of
the December incident was not substantially outweighed by the danger of un-
fair prejudice to Appellant under Mil. R. Evid. 403. In making this determina-
tion, the military judge “considered the similarities between this uncharged
event and the charged event and the severity of the uncharged event.” The
military judge shared Appellant’s concern that “a factfinder might conflate or
confuse the two events.” However, the military judge found “these dangers do
not substantially outweigh the strong probative value of the evidence, specifi-
cally relating to motive, intent, common plan, and absence of mistake,” and
“[t]he facts surrounding the uncharged event support the [G]overnment’s the-
ory that [Appellant] sought to express physical domination or control over NB.”
The military judge correctly applied the third Reynolds prong. Consistent
with his determination, the military judge gave the members an appropriate
limiting instruction after NB’s testimony about the incident in December 2015
and again before closing arguments by counsel. 35 The findings instruction al-
lowed the members to consider the evidence that Appellant may have commit-
ted an offense against NB while she was at the in-residence school in 2015,
“specifically strangling her and threatening her” for the limited purpose of “its
tendency, if any, to show on the part of [Appellant,] motive or intent to domi-
nate and/or control [NB] or to show a common plan or absence of mistake with
regard to Specification 1 of Charge II.” Thus, as to the third Reynolds prong,
we find the military judge properly applied the Mil. R. Evid. 403 balancing test
and the probative value of the evidence was not substantially outweighed by
the danger of unfair prejudice.
35 NB testified about the choking incident toward the end of her direct examination,
after which the military judge instructed, “I do want to instruct the panel with respect
to the alleged assault which allegedly occurred in late December of 2015.” He ex-
plained, “That assault is not on the charge sheet. You may use evidence of that assault
for the limited purpose, to show motive, intent, or common plan. And I will give you
more specific instructions on how you can use the evidence of that particular assault.”
35
United States v. Lull, No. ACM 39555
We conclude that the military judge properly applied the Reynolds test and
his ruling was not a clear abuse of discretion. Accordingly, we hold that the
military judge did not err in admitting evidence that Appellant strangled NB
in the shower and then communicated a threat against her life in December
2015.
b. Statements about being Married to NB
Trial counsel introduced evidence that Appellant wore a wedding ring and
that he told and urged NB to tell others that he and NB were married. One
time in December 2015 when Appellant was away from NB on temporary duty
to San Antonio, Texas, he talked to NB on a speaker phone in a vehicle with
others present. During the car ride, Appellant told NB “they don’t believe that
we’re married. Tell them we’re married.” A witness who was a passenger in the
vehicle testified “[t]he female sounded somewhat irritated . . . [and] would not
answer the question that [Appellant] was married or not.” On a second occasion
while Appellant was at a deployed location, he spoke to NB on a speaker phone
with others listening and “kept encouraging [NB] . . . [to] tell them [they were]
married.” NB testified she benefited from Appellant wearing a wedding ring
and telling others they were married because she wanted to have a monoga-
mous, committed relationship with Appellant. Evidence was also adduced at
trial that NB told a classmate that Appellant was her husband.
The military judge allowed the Government to introduce this evidence un-
der Mil. R. Evid. 404(b). Applying the first Reynolds prong, the military judge
found sufficient evidence to support a finding that Appellant told others he was
married to NB. We find the military judge’s fact-finding on the first Reynolds
prong was supported by the evidence of record and not clearly erroneous.
Applying the second Reynolds prong, the military judge found the evidence
“probative of [Appellant]’s strong feelings toward NB and his alleged desire to
prevent others within his unit from viewing NB as being available for dating.”
The military judge found further “it to be probative of a motive by [Appellant]
to express control over NB to other individuals.” We find the military judge
correctly applied the second Reynolds prong. Two facts of consequence in this
contested findings case were whether Appellant engaged in the acts underlying
the charged assault consummated by a battery and stalking offenses. That Ap-
pellant urged NB falsely to portray she was committed to Appellant in mar-
riage, is some evidence of Appellant’s motive and intent to exert control over
NB, which the factfinder could rely on to find some evidence of these facts of
consequence, though the probative value was modest.
Applying the third Reynolds prong, the military judge found “the probative
value of establishing [Appellant]’s attitude and feelings toward NB is not sub-
stantially outweighed by unfair prejudice,” and “there is minimal danger of
36
United States v. Lull, No. ACM 39555
unfair prejudice” because Appellant’s “statements do not constitute a crime
and for many people would not even be considered per se ‘misconduct.’” We find
the modest relevance of the evidence was not substantially outweighed by the
danger of unfair prejudice. We agree with the military judge’s determination
and conclude he properly applied the Reynolds test and his ruling was not a
clear abuse of discretion.
c. Spoofed Phone Calls to NB’s Cell Phone
On appeal, Appellant challenges the admission of evidence that tended to
show that Appellant made “spoofed” calls to NB’s phone. The phone calls NB
received generally fall into three periods, chronologically: phone calls NB re-
ceived during the charged timeframe for the stalking offense between January
and March 2015 that went unchallenged at trial; phone calls NB received be-
tween September and October 2015 that also went unchallenged at trial; and
phone calls NB received near the end of the year when NB attended in-resi-
dence training in Georgia.
With regard to this last period, the Government provided pretrial notice to
the Defense under Mil. R. Evid. 404(b), that it intended to introduce evidence
of numerous phone calls and voice messages from Appellant to NB “between
on or about 20 November 2015 and 10 January 2016,” while she attended the
in-residence school in Georgia. The calls and messages occurred just over eight
months after the end of the charged timeframe for the stalking offense. The
Government’s notice included that Appellant used a “spoofing” application to
conceal his identity when he placed calls to NB’s cell phone. Appellant objected
to the admission of this evidence in a pretrial motion.
The military judge found sufficient evidence that Appellant used a spoofing
application to contact NB when she was in Georgia, but the probative value of
the evidence was diminished because the communications were “several
months after the charged timeframe for the stalking specification.” The mili-
tary judge also found the probative value was lessened because of unspecified
“evidence presented by the [D]efense showing the context of certain communi-
cations between [Appellant] and NB.” The military judge noted that using a
spoofing application was not illegal, but evidence that Appellant used one sev-
eral months after the charged timeframe for the stalking offense may be a
waste of time or confusing under Mil. R. Evid. 403. Ultimately, the military
judge excluded the evidence, concluding that its admission “could quickly turn
into a mini-trial to establish evidence of questionable relevance.” The military
judge explained,
Considering the Reynolds test and [Mil R. Evid.] 403, I do not
intend to allow the [G]overnment to introduce detailed evidence
37
United States v. Lull, No. ACM 39555
of the accused’s communications to NB as outlined above. How-
ever, I will reconsider this ruling depending upon how evidence
is presented at trial and encourage the parties to discuss
whether evidence of such communications not reasonably in dis-
pute could be admitted in a summary fashion allowing both sides
to discuss relevant aspects of the interactions between [NB] and
the accused during this timeframe.
(Emphasis added).
Appellant claims trial counsel violated the ruling by introducing evidence
from NB’s classmate who related highlights of a 30-minute phone conversation
he had with NB in January 2016. The classmate summarized the conversation
in a narrative that included NB expressing concern about Appellant’s “possible
spoofing of her phone” while she was at the school, which was within the
timeframe covered by the military judge’s ruling; however, trial counsel elic-
ited no details about those communications. NB did not testify about spoofed
phone calls from Appellant that the members could attribute to the 20 Novem-
ber 2015 through 10 January 2016 timeframe covered by the ruling. She ex-
plained that on indeterminate occasions “[i]f we were together, if I was with
him, he wouldn’t do the scary things like spoof calls . . . .”
Trial counsel introduced evidence without objection that NB received
spoofed phone calls from Appellant during two timeframes that were earlier
than the timeframe covered by the military judge’s ruling. The first of these
timeframes were calls Appellant made to her phone during the charged
timeframe of the stalking offense, which NB acknowledged occurred between
“January and March” 2015. NB testified that Appellant would “spoof” her sis-
ter’s phone number so that NB’s phone would show her sister’s name, picture,
and full name when Appellant called NB’s phone. Appellant’s actions scared
her and contributed to her stress. NB believed Appellant used a “spoof app” so
that she could not easily block his calls. The second timeframe was in Septem-
ber or October 2015, after the end of the charged timeframe for the stalking
offense, that included time when Appellant was deployed. On redirect exami-
nation, and without objection, trial counsel introduced a prior written state-
ment NB made to authorities 36 in which NB explained that, during this time,
Appellant was still able to contact her even though she “blocked” him on Face-
book and on her cell phone. Appellant
started to call [NB] through blocked numbers and leave [her]
messages. He would call [NB] through a spoof app which would
36Prosecution Exhibit 11 is a written statement NB made as a student at the in-resi-
dence school she attended in late 2015 into early 2016.
38
United States v. Lull, No. ACM 39555
route his calls through another person[’]s name and number, so
that [she] would answer. [NB] finally had to set up a plan that
people text [her] before they call [her] so that [she] kn[e]w it
[wa]s really them and not him. He would call as much as 30
times a day and leave voicemails. While he was blocked, he
found ways to harass [her] through [S]kype and text message.
[NB] felt like no matter what [she] would do, [she] couldn’t get
away from him.
On appeal, Appellant challenges “[e]vidence of ‘spoofed’ phone calls from
Appellant to NB,” contending that “[t]he military judge ruled this evidence was
inadmissible,” but “NB testified about ‘spoofing’ anyway, and trial counsel en-
couraged her to give details.” Appellant contends the “military judge should
have immediately interrupted the testimony on this issue, instructed the panel
members to disregard that testimony, and admonished NB, the witness, and
trial counsel for testifying about conduct that was ruled inadmissible.” We con-
sider Appellant’s challenges to the evidence in the order in which the evidence
tended to showed that Appellant made the “spoofed” calls to NB’s phone.
i) Spoofed Phone Calls during the Charged Timeframe for the
Stalking Offense
NB’s testimony about spoofed phone calls she received between January
and March 2015 went unchallenged at trial, and were facts and circumstances
of the stalking offense. Generally, evidence that is inextricably related in time
and place to a charged offense does not come under the purview of Mil. R. Evid.
404(b) and is admissible as part of the res gestae of the crime. See United States
v. Metz, 34 M.J. 349, 351–52 (C.M.A. 1992); United States v. Thomas, 11 M.J.
388, 392–393 (C.M.A. 1981). These calls put stress on NB because they scared
her even though they were not spending time together. Because evidence of the
spoofed calls during the charged timeframe was not subject to the military
judge’s ruling and was relevant to the charged stalking conduct, there is no
error in its admission under any standard of review.
ii) Spoofed Phone Calls after the Charged Timeframe
Appellant did not object to evidence tending to show spoofed phone calls
Appellant may have made to NB’s cell phone in September or October 2015
before the timeframe of the military judge’s ruling excluding such evidence and
we decline to grant relief. Under any standard of review, we find Appellant was
not prejudiced by admission of other incidents of spoofing after the members
received evidence of spoofing during the charged timeframe for the stalking
offense.
Regarding the witness’s succinct testimony that NB was concerned about
Appellant’s “possible spoofing of her phone” during the timeframe covered by
39
United States v. Lull, No. ACM 39555
the military judge’s ruling, we assume error for the sake of argument. Again,
Appellant has failed to demonstrate prejudice. Trial counsel presented no evi-
dence of the substance of any spoofed phone calls NB received during the
timeframe covered by the military judge’s ruling. Assuming the military
judge’s ruling forbidding trial counsel from eliciting testimony of “detailed ev-
idence of [Appellant]’s communications to NB” was violated, the predicate for
his ruling was not unfair prejudice but concern about wasting time and con-
fusing the issues, neither of which is apparent from the record. (Emphasis
added). Assuming admission of the evidence was error, we find it did not have
a “substantial influence on the members’ verdict in the context of the entire
case.” United States v. Harrow, 65 M.J. 190, 200 (C.A.A.F. 2007) (citations
omitted).
d. Choking PH and Entering her Residence without Permission
Trial counsel introduced evidence of Appellant’s conduct during an inti-
mate relationship he had with PH before his relationship with NB, including
acts of strangulation of PH and entering PH’s residence without her knowledge
or permission.
PH testified she and Appellant met in the summer of 2013 and were in an
intimate relationship until it ended in the spring of 2014. During their rela-
tionship, which ended less than a year before Appellant’s relationship with NB
began, Appellant had strangled PH to the point of passing out when they en-
gaged in sexual activities. After the first incident, Appellant then “choked out”
PH “[w]henever he felt like it,” even after PH told him she did not like it; and,
“[t]here were times that he did it, and [she] didn’t know he was going to do it.”
PH testified there were “many instances” when Appellant entered her home
after she did not answer his phone calls or texts even though PH had never
given him a key. One time PH was away with her sister while PH’s children,
nieces, and nephews remained in her home. Appellant hid in her daughter’s
bedroom waiting for PH and her sister to return. After several hours, Appellant
walked into the living room, terrifying PH’s daughter and niece who were un-
aware Appellant had been in the house. At other times Appellant “would all of
a sudden be in [PH’s] house” and his truck was nowhere to be seen.
The military judge allowed the Government to introduce PH’s testimony
under Mil. R. Evid. 404(b). The military judge applied the three Reynolds
prongs and his analysis cited and generally relied on this court’s opinion in
United States v. Jackson, No. ACM 37417, 2011 CCA LEXIS 303 (A.F. Ct.
Crim. App. 15 Aug. 2011) (unpub. op.), rev. denied, 71 M.J. 4 (C.A.A.F. 2011)
(mem.). In Jackson, this court found a military judge did not err in admitting
“strikingly similar” uncharged prior acts under Mil. R. Evid. 404(b) that were
evidenced by testimony of two women. Id. at *17. The acts “involved numerous
40
United States v. Lull, No. ACM 39555
instances of what the prosecution characterized as ‘the controlling, manipulat-
ing, and dominating nature’” of the appellant’s relationship with the women,
one of whom was the victim of the rape and assault consummated by a battery
offenses that were charged in the case. Id. at *10. This court found
[t]he uncharged acts to which they testified amount to more than
sporadic instances of jealously or possessiveness; rather, these
acts reasonably reflect Appellant’s strong desire to dominate and
control women, including his desire for sexual control. We find
this evidence probative of a motive to batter and rape . . . in that
battery and rape may be viewed logically as an ultimate expres-
sion of an emotion or desire to dominate and control women, and
that numerous acts of such domination and control are also evi-
dence of [a]ppellant's plan, with battery and rape . . . being a log-
ical additional manifestation of that plan.
Id. at *17 (citations omitted). Before applying the Reynolds test, the military
judge made a point to find that “[t]he facts in this case are similar to those
detailed in United States v. Jackson.” The military judge then proceeded with
his analysis of the first Reynolds prong, finding PH’s testimony was credible
despite inconsistencies and her prior felony conviction for possession of cocaine
and driving under the influence of alcohol. The military judge found sufficient
evidence for the members to find that Appellant committed the prior acts.
Applying the second Reynolds prong, the military judge found that the in-
cidents of strangulation during sexual activities made it less probable that the
charged assault consummated by a battery of NB was an accident. The military
judge found the incidents were in furtherance of a common plan or scheme to
perpetuate control through fear against NB by utilizing the same submission
and intimidation techniques Appellant used against PH, making it more likely
that Appellant’s conduct with NB was for the purpose of intentional, physical
abuse rather than playful interactions, sexual or otherwise. Regarding inci-
dents in which PH found Appellant in her home without being invited and
without her prior knowledge, the military judge found them to be probative of
the charged stalking offense. The military judge found the acts were consistent
with an intent to control movements and knowledge of a victim’s whereabouts,
as well as evidence of a common plan or scheme to perpetuate control through
fear. The military judge also found Appellant’s actions with both women “could
be reasonably interpreted as a plan or a scheme with the goal to overcome a
feeling of safety by the victim in their residence.”
Applying the third Reynolds prong, the military judge determined that the
probative value of the incidents involving PH was not substantially outweighed
by the danger of unfair prejudice under Mil. R. Evid. 403. The military judge
recognized that there was a danger that the evidence that Appellant strangled
41
United States v. Lull, No. ACM 39555
PH might mislead the members to find Appellant was a generally violent per-
son and therefore guilty of the assault consummated by a battery offense.
Nonetheless, the military judge found the probative value of Appellant’s mo-
tive, intent, and plan to intimidate or dominate and control his intimate part-
ners was strong. The military judge assessed that the similarity between the
strangulation incidents described by PH and NB was strong and tended to ne-
gate accident or mistake of fact. 37 Consistent with his Mil. R. Evid. 403 deter-
mination, the military judge gave the members an appropriate limiting in-
struction. The instruction allowed the members to consider evidence that Ap-
pellant “may have committed various offenses against [PH][ 38] . . . . for the lim-
ited purpose of its tendency, if any, to show on the part of the accused motive
or intent to dominate and/or control his domestic partners, or to show a com-
mon plan or absence of mistake” with regard to the charged assault consum-
mated by a battery and stalking offenses.
We find the military judge correctly applied the Reynolds test to admit PH’s
testimony under Mil. R. Evid. 404(b). In United States v. Moore, 78 M.J. 868(A.F. Ct. Crim. App. 2019), rev. denied, 79 M.J. 203 (C.A.A.F. 2019), a case this
court decided after Appellant’s trial, we held that evidence of an appellant’s
controlling behavior was admissible under Mil. R. Evid. 404(b) to show an ap-
pellant’s motive, intent, and absence of mistake. Id. at 876. In Moore, two facts
of consequence made more or less probable by admission of Mil. R. Evid. 404(b)
evidence were whether the victim consented to sexual acts with the appellant
and if not, whether the appellant mistakenly believed that she did. Id. at 875.
Here, the facts of consequence were whether Appellant engaged in the acts
underlying the charged assault consummated by a battery and stalking of-
fenses—elements of the Government’s proof that Appellant contested at trial.
In his appeal, Appellant argues that the military judge should not have
allowed PH to testify about Appellant choking her, because the evidence
showed Appellant did so only as part of sexual activities and because there was
no evidence that Appellant’s method of choking NB and PH was identical. Ap-
pellant also argues there was no evidence Appellant ever entered NB’s resi-
dence without her permission as PH testified he had done during their rela-
tionship. Appellant claims these dissimilarities are enough to render PH’s tes-
timony inadmissible under Mil. R. Evid. 404(b). We disagree.
The behavior of the appellant in Moore included a range of actions that
nonetheless demonstrated a basis for admissibility under Mil. R. Evid. 404(b),
37The military judge found the time it would take to litigate PH’s testimony about the
uncharged misconduct was not excessive or a waste of time.
38The limiting instruction identified Appellant’s uncharged acts with PH as Appellant
“strangling her,” “stalking her, [and] entering her house . . . .”
42
United States v. Lull, No. ACM 39555
because the one thing the appellant’s acts had in common was that a factfinder
could conclude they were done to exert control over the victim and to repress,
instead of respect, the victim’s personal autonomy. Moore, 78 M.J. at 874–75.
Here too, the members could find that Appellant’s prior acts involving PH were
similarly designed to repress the autonomy of an intimate partner. Moreover,
they show Appellant was not deterred in his stalking activities by the presence
of his target’s family members. The military judge did not err in finding the
probative value of Appellant’s motive, intent, and plan to intimidate or domi-
nate and control his intimate partners was strong and was not substantially
outweighed by the danger of unfair prejudice under Mil. R. Evid. 403. Even
though the circumstances in which Appellant strangled PH were not identical
to the charged incident of strangling NB on the couch, they were similar
enough to be probative. Notably, the incidents were unexpected and occurred
when a factfinder could find that both women showed physical intimacy and
affection for Appellant.
We conclude that the military judge properly applied the Reynolds test and
his ruling was not a clear abuse of discretion. Accordingly, we hold that the
military judge did not err in admitting evidence of Appellant’s prior acts of
strangling PH and entering her residence without her knowledge or permission
for a limited purpose to prove the charged assault consummated by a battery
and stalking offense.
E. Admissibility of Expert Testimony
Before resting its case, the Government called Dr. CR to testify in findings
as an expert in forensic psychology. After conducting an Article 39(a), UCMJ,
10 U.S.C. § 839(a), session outside the presence of the members, the military
judge permitted Dr. CR to testify over the Defense’s objection regarding how
individuals maintain control in a relationship where there is physical or emo-
tional abuse. Dr. CR also described barriers that keep victims from leaving an
abusive relationship. The expert did not give an opinion or testify about the
facts of the case. Appellant claims the military judge erred in permitting
Dr. CR to testify.
1. Additional Background
a. Appellant’s Defense at Trial
Appellant’s defense at trial showed that the misconduct underlying NB’s
allegations occurred in the midst of her intimate relationship with Appellant.
In opening statement, trial defense counsel explained to the members that the
evidence would show how that relationship had “gone bad.” Counsel also ex-
plained they “won’t see evidence of [NB] calling the police” to report Appellant’s
conduct. Rather, he explained “what [the members] will see is that they con-
43
United States v. Lull, No. ACM 39555
tinued dating, not only in January, February and March 2015, but they con-
tinued dating and being intimate for the next nine months.” Trial defense coun-
sel told the members to pay close attention to NB’s “ability to remember the
negative things that happened between them and her inability to remember
. . . the number of times she told [Appellant] how much she loved him, how
much she missed him, and how much she wanted to be with him.”
Trial defense counsel challenged NB’s credibility on cross-examination as
he had in opening statement. NB acknowledged she and Appellant frequently
engaged in consensual sexual activity after the sexual assault in late December
2014. NB acknowledged she still wanted to be in a long-term, exclusive rela-
tionship with Appellant even after the assaults and stalking behaviors oc-
curred. NB disliked that Appellant was seeing another woman and was “very
upset” that Appellant would spend time with the other women but he expected
her to only be with him. NB acknowledged she and Appellant often argued
about how he expected her to be faithful to him when he was not faithful to
her, and how Appellant told NB she should end their relationship if NB ex-
pected it to be exclusive.
Appellant and NB were mostly in a long-distance relationship between the
end of the charged timeframe for the stalking offense in mid-March 2015, and
the report of Appellant’s conduct to a classmate during a break in NB’s in-
residence training in December 2015. During the times they were apart, in-
cluding when Appellant was deployed overseas, NB told Appellant she loved
and missed him. Trial defense counsel admitted multiple exhibits in the cross-
examination of NB to demonstrate that she sent Appellant cards, letters, and
photos, and invited him to her graduation from basic training.
b. Expert Testimony of Dr. CR
Before resting its case, the Government proffered the expert testimony of
Dr. CR. Trial counsel explained that Dr. CR would not testify about the specific
facts of the case and would educate the panel on abusive relationships as they
“relate[ ] to forensic psychology.” In a short Article 39(a), UCMJ, session, held
before Dr. CR was called as a witness, trial defense counsel objected to the
proffer on grounds that expert testimony would not help the members under-
stand the evidence or determine a fact in issue under Mil. R. Evid. 702(a). Trial
defense counsel also objected on grounds that trial counsel was not intending
to ask Dr. CR to give an opinion about the specific facts of the case, and as a
result the probative value of her testimony under Mil. R. Evid. 403 was there-
fore diminished and outweighed by the unfair prejudice to Appellant that her
44
United States v. Lull, No. ACM 39555
expert testimony would bolster NB’s testimony on direct examination. 39 The
military judge overruled both objections and recognized Dr. CR as an expert in
forensic psychology.
During her testimony, and consistent with the Government’s proffer, Dr.
CR did not refer to Appellant, NB, or any of the testimony or other evidence in
the Government’s case. Rather, her testimony that was given without further
objection revolved around general characteristics of abusive relationships. She
explained there are many ways individuals maintain control in an abusive re-
lationship including “drugs, intimidation, coercion, [and] things of that na-
ture.” She described emotional abuse as the “most common” type, which in-
cluded “threats, the belittling of the partner,” “degrading comments, [and]
making [the partner] feel at fault.” Individuals may use emotional abuse as a
way to maintain power and control, and deny what they are doing, to include
making the victim think she is “crazy,” and abusers “may minimize [the abus-
ing] behavior.” She explained “[t]hey may blame the victim themselves,” and
gave an example in which Dr. CR impersonated an abuser talking to a victim:
“If you had never said this, I wouldn’t have reacted this way. If you ha[d] be-
haved in a different way, I wouldn’t have gotten so upset.”
Dr. CR explained that fear is the number one barrier in the way of someone
leaving an abusive relationship or letting others know what is happening to
them. Victims are afraid that they will be physically harmed, and they are
afraid their family will be harmed if the abuser retaliates. She described how
other psychological factors get in the way of a victim leaving an abusive rela-
tionship or reporting the abuse: “They often feel ashamed. They feel guilt.
Sometimes they blame themselves, often actually they blame themselves for
the abuse, for not leaving, [and] for the circumstances of what’s happening.”
Victims may also feel love and attachment to their partner. Dr. CR explained,
[Q]uite often, despite what we think, they feel attachment, they
feel commitment, they feel loved by this person that they’ve been
in a relationship with. And people that feel that way are less
likely to let somebody know what’s going on, to report things to
the police, to do anything to fix that, [and] to leave the relation-
ship.
39 Trial defense counsel did not file a motion to exclude Dr. CR’s testimony. The mili-
tary judge tried to ascertain the exact basis of the objection through a series of ques-
tions, leading to trial defense counsel stating that when an expert does not apply the
facts of the case to giving an opinion, then the expert testimony is less probative under
Mil. R. Evid. 403. Trial defense counsel stated, “I don’t object to her being qualified as
an expert in forensic psychology. . . . Anything specifically beyond that, I would object
to it, but not an expert in forensic psychology.”
45
United States v. Lull, No. ACM 39555
Finally, Dr. CR described “legal factors” that prevent reporting of abuse.
She explained that reporting sometimes “means that your credibility is put on
the line. . . . and you may not be believed or that nothing may happen as a
result of you asking for help.” Sometimes victims of abuse are worried “that if
they do report it that this person, that they may be committed to, will get in
trouble. They don’t want legal consequences for this person that they are mar-
ried to perhaps or have children with or are in a committed relationship with.”
c. Defense’s Findings Argument
In findings argument, the Defense argued that NB’s account of Appellant’s
behavior was not credible because she remained in the relationship. The De-
fense explained, “It’s not reasonable to think that if this [sexual assault] was
something that happened that someone would continue on a sexual relation-
ship over the course of a year. It just isn’t.” When discussing the stalking of-
fense, the Defense questioned, “How is it that someone is in fear of death or
bodily harm, while they are dating someone?” The Defense answered his own
question, “She’s afraid of death or bodily harm, [and] that is why she is staying
at his place all the time.” As regards the incident of assault consummated by a
battery early in the relationship when Appellant choked NB on the couch, the
Defense challenged the Government’s contention that Appellant “just ran-
domly does it to exercise control.” The Defense cast doubt that the strangula-
tion incident happened by asking a rhetorical question as if counsel was speak-
ing directly to NB, “Really, your relationship will continue for nearly a year?”
Near the end of argument, the Defense claimed it was “implausible” that
NB would stay in a relationship with Appellant if the incidents she described
actually happened. He asked the members to consider the many “valid reasons”
someone might stay in an abusive relationship that were not present, including
marriage, children, and financial dependence. The Defense made the point that
if Appellant’s conduct with NB was as she described, then there would have
been “powerful motives for leaving” Appellant, and NB would have done so if
NB’s account of Appellant’s conduct were true.
2. Law
A military judge’s decision to admit or exclude expert testimony is re-
viewed for an abuse of discretion. Ellis, 68 M.J. at 344 (citation omitted). Mil.
R. Evid. 702 governs the testimony of expert witnesses in a trial by court-mar-
tial. The rule provides:
A witness who is qualified as an expert by knowledge, skill, ex-
perience, training, or education may testify in the form of an
opinion or otherwise if: (a) the expert’s scientific, technical, or
other specialized knowledge will help the trier of fact to under-
46
United States v. Lull, No. ACM 39555
stand the evidence or to determine a fact in issue; (b) the testi-
mony is based on sufficient facts or data; (c) the testimony is the
product of reliable principles and methods; and (d) the expert
has reliably applied the principles and methods to the facts of
the case.
The United States Court of Appeals for the Armed Forces (CAAF) has ar-
ticulated six factors to determine whether a proponent of expert testimony has
met the Mil. R. Evid. 702 criteria:
(1) the qualifications of the expert; (2) the subject matter of the
expert testimony; (3) the basis for the expert testimony; (4) the
legal relevance of the evidence; (5) the reliability of the evidence;
and (6) that the probative value of the expert’s testimony out-
weighs the other considerations outlined in [Mil. R. Evid.] 403.
United States v. Billings, 61 M.J. 163, 166 (C.A.A.F. 2005) (citing United States
v. Houser, 36 M.J. 392, 397 (C.M.A. 1993)). Although Houser predates the lead-
ing Supreme Court decisions in this area, Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137(1999), Houser is consistent with these decisions and continues to guide the
admission of expert testimony in courts-martial. Billings, 61 M.J. at 166 (cita-
tions omitted). “[W]hile satisfying every Daubert or Houser factor is sufficient,
it is not necessary.” United States v. Sanchez, 65 M.J. 145, 149 (C.A.A.F. 2007).
The military judge’s inquiry is “flexible” and “tied to the facts of [the] particular
case.” Id. (internal quotation marks and citations omitted).
3. Analysis
We find the military judge did not abuse his discretion in admitting
Dr. CR’s expert testimony. At trial, Appellant affirmed he had “[n]o objection”
to either admitting Dr. CR’s curriculum vitae in evidence or recognizing her as
an expert in the field of forensic psychology. Appellant’s narrow objections at
trial were that Dr. CR’s testimony would not be helpful to the factfinder under
Mil. R. Evid. 702(a), and that it did not satisfy a Mil. R. Evid. 403 balancing
test. Appellant did not unmistakably challenge the subject matter, basis, legal
relevance, or reliability of Dr. CR’s expert testimony. See Billings, 61 M.J. at
166.
To preserve a claim of error in a ruling to admit evidence, a party must
“state[ ] the specific ground, unless it was apparent from the context.” Mil. R.
Evid. 103(a)(1)(2). Among Appellant’s contentions on appeal is that the mili-
tary judge failed to “follow the correct legal framework in deciding to admit Dr.
CR’s testimony” and cites the factors considered by the court in Billings and
Houser. Given that Appellant’s broad allegations of error on appeal differ from
47
United States v. Lull, No. ACM 39555
the more limited objections lodged by counsel at trial, we must decide if Appel-
lant forfeited his complaint about new grounds for exclusion. “A party is re-
quired to provide sufficient argument to make known to the military judge the
basis of his objection and, where necessary to support an informed ruling, the
theory behind the objection.” United States v. Datz, 61 M.J. 37, 42 (C.A.A.F.
2005) (citing United States v. Banker, 60 M.J. 216 (C.A.A.F. 2004); United
States v. Brandell, 35 M.J. 369, 372 (C.M.A. 1992)). “Where an appellant has
not preserved an objection to evidence by making a timely objection, that error
will be forfeited in the absence of plain error.” United States v. Brooks, 64 M.J.
325, 328 (C.A.A.F. 2007) (citing Mil. R. Evid. 103(d)).
We conclude Appellant’s specific objections at trial result in forfeiture, if
not waiver, of his more comprehensive challenge on appeal that the military
judge failed to follow the Houser framework that guides the admission of expert
testimony in courts-martial. Appellant did not obviously object on this basis.
His objection was that expert testimony was not helpful to the factfinder or
admissible under a Mil. R. Evid. 403 balancing test. Testing for plain error and
finding none, we decline to grant relief. Dr. CR’s testimony couched in general
terms about abusive relationships was not obviously irrelevant or unreliable
under the Houser framework and did not reach any ultimate questions
properly left to the members to decide.
Turning to Appellant’s specific objections that were preserved for review,
Appellant explains on appeal that Dr. CR’s testimony was not helpful because
the reasons why abuse victims do not leave or report their abusers was common
knowledge and only served to improperly bolster NB’s credibility. Appellant
further explains that Dr. CR’s expert testimony about abusers belittling and
making degrading comments to their victim-partners amounted to improper
propensity evidence that encouraged the members to convict Appellant simply
because Appellant said mean things to NB. Appellant contends “[w]ithout Dr.
CR linking her opinions to the facts of Appellant’s case, her testimony was ir-
relevant.”
In explaining his objection, trial defense counsel referenced the Govern-
ment’s proffer that DR. CR’s testimony would not reach the specific facts of the
case and remarked that “given this generalized nature” of the proffer, there
was no issue of fact that her expert testimony would help the trier of fact to
determine. However, in sexual assault cases, expert testimony about what
might be considered counterintuitive behavior of a victim has been allowed be-
cause it may assist the members in “disabusing themselves of widely held mis-
conceptions.” United States v. Flesher, 73 M.J. 303, 313 (C.A.A.F. 2014) (quot-
ing Houser, 36 M.J. at 398) (internal quotation marks omitted) (citing United
States v. Peel, 29 M.J. 235, 241 (C.M.A. 1989), cert. denied, 493 U.S. 1025(1990)) (allowing expert to testify that “it was not inconsistent behavior for a
48
United States v. Lull, No. ACM 39555
rape victim not to immediate[ly] report the offense” or to “act[ ] as if the rape
had never happened”); United States v. Reynolds, 29 M.J. 105, 108 (C.M.A.
1989) (allowing clinical psychologist to testify in order to “counter any adverse
inferences which might be drawn from the fact that the victim did not imme-
diately report the offense”). Here too, expert testimony could assist the mem-
bers in understanding NB’s actions related to the offenses of stalking and as-
sault consummated by a battery, including why she did not immediately make
a report to the police.
The military judge did not abuse his discretion in finding Dr. CR’s expert
testimony was helpful to the factfinder. We reach this conclusion even though
the military judge’s ruling is entitled to less deference because he did not ar-
ticulate balancing the probative value of the testimony against other consider-
ations listed in Mil. R. Evid. 403, particularly whether the relevance of expert
testimony was substantially outweighed by any unfair prejudice to Appellant.
See, e.g., United States v. Collier, 67 M.J. 347, 353 (C.A.A.F. 2009).
NB described an abusive relationship from nearly the beginning through
the end of her relationship with Appellant. The defense strategy at trial
counted on the factfinder believing a premise that was the opposite of Dr. CR’s
expert opinion: that victims in an abusive relationship are likely to end the
relationship and leave. Relying on this premise, Appellant took every oppor-
tunity to challenge NB’s credibility and the truthfulness of her testimony on
grounds that she continued the relationship and stayed. Thus, we reject Ap-
pellant’s contention on appeal that the reasons why victims do not leave or
report their abusers was common knowledge because the strategy of Appel-
lant’s defense was to convince the factfinder that the opposite was true.
We similarly reject Appellant’s contention that Dr. CR’s testimony was ir-
relevant because she did not link her opinions to the facts of Appellant’s case.
Appellant finds support for his contention in the language of Mil. R. Evid. 702,
which permits an expert to “testify in the form of an opinion or otherwise” on
the condition that “the expert has reliably applied the principles and methods
to the facts of the case.” Mil. R. Evid. 702(d). Rule 702 was modified in 2004
based on an amendment to Federal Rule of Evidence (Fed. R. Evid.) 702, that
was effective on 1 December 2000, and is identical to the Federal Rule. See
MCM, App. 22, at A22-59. The Advisory Committee’s note to the 2000 amend-
ment to Fed. R. Evid. 702 allows “an expert to educate the factfinder about
general principles, without ever attempting to apply these principles to the
specific facts of the case.” Fed. R. Evid. 702 advisory committee’s note (2000). 40
40 The note explains that the amended Rule:
49
United States v. Lull, No. ACM 39555
Although Dr. CR did not refer to Appellant, NB, or any of the testimony or
other evidence, her testimony touched on two facts of consequence: how indi-
viduals maintain control in abusive relationships and the barriers that keep
victims from ending those relationships and leaving an abuser. Thus, Dr. CR’s
testimony was permissible even though she did not testify regarding any spe-
cific aspect of Appellant's case.
We find that the probative value of the evidence outweighed the Mil. R.
Evid. 403 considerations, and conclude there is no merit to the contention that
the military judge abused his discretion in admitting Dr. CR’s expert testi-
mony.
F. Subject-matter Jurisdiction and Notice – Sexual Assault
As discussed in our analysis of the legal and factual sufficiency of Appel-
lant’s convictions, Appellant was charged in Specification 1 of Charge I with
sexual assault by causing bodily harm, in violation of Article 120(b)(1)(B),
UCMJ. As charged, the Government was required to prove that Appellant pen-
etrated her vulva with his penis without consent. See MCM, pt. IV, ¶
45.b.(3)(b). Appellant contends on appeal that the court-martial lacked subject-
matter jurisdiction over the sexual assault charge because he was not placed
on notice that he could be convicted on a theory other than bodily harm by a
nonconsensual sexual act that was charged and referred. Appellant claims the
record shows three additional theories that could have been the basis for his
conviction.
Branding the charged bodily harm as one “theory,” Appellant argues that
the Government presented testimony that showed NB may have been either
incapable of consenting to the sexual act because she was intoxicated (a second
theory) or she was unaware of what was happening (a third theory), and that
her testimony interjected these uncharged theories in the Government’s find-
ings case. Appellant claims the military judge’s instruction to the members
that “placing another person in fear does not constitute consent” introduced
yet a fourth theory that Appellant was ill-prepared to defend against because
does not alter the venerable practice of using expert testimony to edu-
cate the factfinder on general principles. For this kind of generalized
testimony, Rule 702 simply requires that: (1) the expert be qualified;
(2) the testimony address a subject matter on which the factfinder can
be assisted by an expert; (3) the testimony be reliable; and (4) the tes-
timony “fit” the facts of the case.
Fed. R. Evid. 702 advisory committee’s note (2000).
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United States v. Lull, No. ACM 39555
it was neither charged nor referred to trial. Appellant contends the Govern-
ment simultaneously pursued “mutually exclusive” theories of criminal liabil-
ity in its findings case.
Appellant relies on the condition that a court-martial only has subject mat-
ter jurisdiction over charges that are properly referred to it for his contention
that a court-martial lacks jurisdiction over alternate charging theories not in-
cluded in the referred charge. It follows, Appellant claims, that the court-mar-
tial lacked jurisdiction over any theory other than the bodily harm offense that
was reviewed at an Article 32, UCMJ, preliminary hearing and referred to
trial. Appellant explains there is no subject-matter jurisdiction over an offense
that is not referred, citing R.C.M. 201(b)(3) (“Each charge before the court-
martial must be referred to it by competent authority.”), and argues the record
is unclear which of the four theories of criminal liability for sexual assault was
used by the factfinder to convict. Relying on this premise, Appellant asserts
the Government failed to put him on notice, and he was confused as to which
theory of liability he had to defend against, the members also may have been
confused, and this court cannot be sure of the basis for Appellant’s conviction.
We have reviewed similar contentions in unrelated cases on appeal. In an-
alyzing whether an appellant was convicted on a constructive-force theory ra-
ther than bodily harm accomplished by a nonconsensual sexual act, and thus
subject-matter jurisdiction was lacking as that appellant claimed, we deter-
mined in United States v. Plourde, that
[t]his novel, yet meritless, argument is rooted in a misapprehen-
sion of the concept of subject-matter jurisdiction within the mil-
itary justice system. Such jurisdiction depends “solely on
whether the accused ‘was a member of the armed services at the
time of the offense charged.’” United States v. Jordan, 29 M.J.
177, 184–85 (C.M.A. 1989) (quoting Solorio v. United States, 483
U.S. 435, 451 (1987)), vacated on other grounds, 498 U.S. 1009(1990). General courts-martial have jurisdiction to try offenses
punishable under the UCMJ. Article 18, UCMJ, 10 U.S.C. § 818.
No. ACM 39478, 2019 CCA LEXIS 488, at *13–15 (A.F. Ct. Crim. App. 6 Dec.
2019) (unpub. op.) (rejecting suggestion the Government employed construc-
tive-force theory to convict), rev. denied, No. 20-0120, 2020 CAAF LEXIS 106(C.A.A.F. 27 Feb. 2020); see also United States v. Jones, No. ACM 39543, 2020
CCA LEXIS 207, at *14–15 (A.F. Ct. Crim. App. 11 Jun. 2020) (unpub. op.)
(rejecting jurisdictional argument by an appellant convicted of sexual assault
by bodily harm who claimed members were presented with two theories of sex-
ual assault that were not referred for trial, specifically that he sexually as-
saulted two victims by placing them in fear, and that he also sexually assaulted
one of the victims by penetrating her when she was asleep).
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United States v. Lull, No. ACM 39555
As in Plourde, Appellant misconstrues the relevant inquiry with respect to
jurisdiction. A general court-martial had jurisdiction to try Appellant for any
offense punishable under the UCMJ. Article 18, UCMJ, 10 U.S.C. § 818; see
Ali, 71 M.J. at 261–62. The specification of sexual assault by bodily harm in
violation of Article 120, UCMJ, referred for trial is an offense punishable under
the code. Similarly, Appellant was subject to the UCMJ at the time of the of-
fense and at the time of his trial. There is no genuine question that a competent
convening authority referred the sexual assault charge, and that the court-
martial that tried Appellant had subject-matter jurisdiction over the offense.
R.C.M. 201(b)(3).
Further, Appellant was on notice of the charge he had to defend against at
trial. The statutory definition of “[t]he term ‘bodily harm’ means any offensive
touching of another, however slight, including any nonconsensual sexual act
. . . .” MCM, pt. IV, ¶ 45.a.(g)(3). The statutory definition of “consent” includes
that it must be “a freely given agreement to the conduct at issue by a competent
person.” MCM, pt. IV, ¶ 45.a.(g)(8)(A). Taken together, the definitions put an
accused on notice that when bodily harm is the sexual act charged by the Gov-
ernment, then an alleged victim’s competence is at issue. The definitions put
Appellant on notice that NB’s consumption of alcohol and level of intoxication
were among “[a]ll the surrounding circumstances,” MCM, pt. IV, ¶
45.a.(g)(8)(C), and were potentially relevant to whether NB consented to the
sexual act. The Government has the responsibility to “define the criminal of-
fense with sufficient definiteness that ordinary people can understand what
conduct is prohibited.” Gonzales v. Carhart, 550 U.S. 124, 149 (2007) (internal
quotation marks and citations omitted). The plain language of the elements of
the offense and definitions of bodily harm and consent in the statute gives fair
notice of the offense and legal basis under which Appellant was charged.
Citing United States v. Sager, 76 M.J. 158 (C.A.A.F. 2017), Appellant con-
tends that “the Government was required to charge incapacitation separately,”
and that the manner in which the Government presented its case amounted to
“[t]heory-blending” prohibited by Sager. The essence of Appellant’s contention
is that the Government must singularly focus on a victim’s expression of lack
of consent through words or conduct when it pursues a bodily harm theory of
sexual assault. We disagree and find the comparison to Sager inapt. In Sager,
the appellant was charged with a sexual offense while the victim was “asleep,
unconscious, or otherwise unaware.” Id. at 159. The members found the appel-
lant guilty only under the theory that the sexual act occurred while the victim
was “otherwise unaware.” Id. at 160. The CAAF held that “asleep, unconscious,
or otherwise unaware” creates three separate criminal liability theories under
Article 120(b)(2), UCMJ, 10 U.S.C. § 920(b)(2), noting the words “are separated
by the disjunctive, ‘or.’” Id. at 161. The CAAF held, “Under the ‘ordinary mean-
52
United States v. Lull, No. ACM 39555
ing’ canon of construction, therefore, ‘asleep,’ ‘unconscious,’ or ‘otherwise una-
ware’ as set forth in Article 120(b)(2) reflect separate theories of liability,” and
to hold differently would render “asleep” and “unconscious” mere surplusage.
Id. at 162 (citation omitted).
Here, the theory of liability was singular: bodily harm. The explanation of
“consent” in the statute reflects not alternative theories of liability separated
by the disjunctive “or,” as in Sager, but a comprehensive definition as it bears
upon the Government’s proof of a “nonconsensual sexual act” when an accused
causes “bodily harm” to another person. We decline to find a requirement for
mutually exclusive charging theories in a comprehensive definition or conclude
that Congress intended a “bodily harm” theory of sexual assault to only allow
the Government to admit evidence that a victim manifests lack of consent
through words or conduct. Thus, we reject Appellant’s contention that he was
charged with one theory of sexual assault and convicted of another.
G. Findings Instructions
In a related assignment of error, Appellant claims the instructions to the
members regarding consent were confusing and misleading because they in-
cluded the three alternative theories of liability that Appellant contends de-
prived the court-martial of subject-matter jurisdiction and fair notice. See dis-
cussion, supra. In a separate assignment of error, Appellant also claims that
findings instructions were deficient because the military judge failed to in-
struct on whether Appellant labored under an honest and reasonable belief
that NB had the capacity to consent to the sexual act charged in Specification
1 of Charge I, in addition to an instruction he did give on mistake of fact as to
consent. Although not raised as an issue on appeal, we also consider whether
the military judge erred when he failed to instruct the members on the
timeframe for the stalking offense when he instructed on the elements of that
offense.
1. Additional Background
After the close of evidence, the military judge circulated draft findings in-
structions in an email to counsel for both parties. The next morning, the mili-
tary judge held an R.C.M. 802 conference to discuss an exchange of emails
about the instructions and the findings worksheet. In an Article 39(a), UCMJ,
session that followed the conference, the military judge asked the Defense if it
had “a final copy of the instructions.” The Defense acknowledged it did. The
military judge asked the Defense if it had any objections to the instructions or
a request for additional instructions. The Defense replied, “No, Your Honor.”
The military judge then asked if there were any other matters that the parties
needed to take up, besides reviewing the findings worksheet. The Defense
again answered in the negative. The military judge informed the parties that
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United States v. Lull, No. ACM 39555
he would read the instructions to the members, and after he made any changes,
he would mark the instructions as an appellate exhibit.
The military judge instructed the members on the elements of the offenses.
However, he did not instruct on a timeframe for the stalking offense. 41 That
offense was referred as occurring “between on or about 1 January 2015 and 15
March 2015,” and this date range was stated correctly in a copy of the specifi-
cation that was given to the members after court was assembled.
The military judge also instructed the members on the elements of sexual
assault of NB, and then gave the statutory definition of consent including that
“[c]onsent means a freely given agreement to the conduct at issue by a compe-
tent person” and that “[l]ack of verbal or physical resistance or submission re-
sulting from use of force, threat of force, or placing another person in fear does
not constitute consent.” See MCM, pt. IV, ¶ 45.a.(g)(8)(A). The military judge
explained the meaning of a “competent” and “incompetent” person, and the
meaning of a “freely given agreement,” as the definitions for those terms had
been affirmed by our superior court in United States v. Pease, 75 MJ 180, 184–
86 (C.A.A.F. 2016). The military judge explained that a “competent” person
possesses the physical and mental ability to consent. And [an]
incompetent person is a person who lacks either the mental or
physical ability to consent because he or she is one, asleep or
unconscious; two, impaired by a drug, intoxicant, or other simi-
lar substance; or three suffering from a mental disease or defect
or a physical disability. To be able to freely make an agreement,
the person must first possess the cognitive ability to appreciate
the nature of the conduct in question, and then possess the men-
tal and physical ability to make and to communicate a decision
regarding that conduct to the other person. However, if the per-
son has the ability to appreciate the conduct and communicate
lack of consent but does not do so out of fear[,] or because of some
41 The military judge instructed on the first element of the offense as follows:
[I]n the Specification of the Additional Charge, the accused is charged
with the offense of stalking, in violation of Article 120a, UCMJ. In or-
der to find the accused guilty of this offense, you must be convinced by
legal and competent evidence beyond reasonable doubt: (1) That within
the state of Oklahoma, the accused wrongfully engaged in a course of
conduct directed at [NB], that is he repeatedly maintained visual and
physical proximity to her home and place of work and conveyed threats
by words and conduct that would cause a reasonable person to fear
bodily harm to herself and members of her immediate family.
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United States v. Lull, No. ACM 39555
other external influence counteracting voluntariness, the sexual
conduct is not voluntary.
The military judge concluded his instructions on the definition of consent
by explaining that the “[l]ack of consent may be inferred based on circum-
stances. All of the surrounding circumstances are to be considered in determin-
ing whether a person gave consent or whether a person did not resist or
cease[d] to resist only because of another person’s actions.”
Next, the military judge instructed that the evidence raised the issue of
mistake of fact as to consent. He explained the Government’s burden to prove
beyond a reasonable doubt that Appellant was not under a reasonably mis-
taken belief that NB consented to the alleged sexual conduct. Appellant did not
request an instruction that the Government also had the burden to prove be-
yond a reasonable doubt that Appellant did not labor under a reasonably mis-
taken belief that NB had the capacity to consent, as Appellant claims for the
first time on appeal.
The Defense did not object to the instructions as given or request additional
instructions. At the conclusion of instructions and arguments by counsel, the
bailiff retrieved the written instructions from the military judge and handed
them to the members, and the military judge closed the court for deliberations.
In all material respects, the written instructions in the record are the same as
the military judge’s oral instructions to the members.
2. Law
a. Duty to Provide Appropriate Legal Guidance to Members
Whether a military judge appropriately instructed the members is a ques-
tion of law we review de novo. United States v. McClour, 76 M.J. 23, 25
(C.A.A.F. 2017) (quoting United States v. Medina, 69 M.J. 462, 465 (C.A.A.F
2011)). “The military judge has an independent duty to determine and deliver
appropriate instructions.” United States v. Ober, 66 M.J. 393, 405 (C.A.A.F.
2008) (citing United States v. Westmoreland, 31 M.J. 160, 163–64 (C.M.A.
1990)). This duty includes giving required instructions that include “[a] de-
scription of the elements of each offense charged.” R.C.M. 920(e)(1). The mili-
tary judge is obligated to ensure that an appellant receives a fair trial and this
obligation includes the duty to provide appropriate legal guidance. See United
States v. Wolford, 62 M.J. 418, 420 (C.A.A.F. 2006) (citation omitted).
We review unchallenged instructions for plain error. United States v.
Blanks, 77 M.J. 239, 241 (C.A.A.F. 2018) (citation omitted). Under the plain
error standard, “Appellant has the burden of establishing (1) error that is (2)
clear or obvious and (3) results in material prejudice to his substantial rights.”
United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014) (citing United States v.
Brooks, 64 M.J. 325, 328 (C.A.A.F. 2007)). “[T]he failure to establish any one
55
United States v. Lull, No. ACM 39555
of the prongs is fatal to a plain error claim.” United States v. Bungert, 62 M.J.
346, 348 (C.A.A.F. 2006).
b. Waiver
“Whether an appellant has waived an issue is a legal question that this
Court reviews de novo.” United States v. Rich, 79 M.J. 472, 475 (C.A.A.F. 2020)
(citing United States v. Davis, 79 M.J. 329, 332 (C.A.A.F. 2020)). In United
States v. Gutierrez, the CAAF rejected plain error review of a required findings
instruction under R.C.M. 920(e)(3), observing that its “jurisprudence allows af-
firmative waiver of affirmative defenses.” 64 M.J. 374, 376 n.3 (C.A.A.F. 2007).
The trial judge in Gutierrez stated “there doesn’t appear to be any mistake of
fact instruction with regard to battery,” and then pointedly asked the Defense,
“Are you requesting one?” Id. at 376. The court found waiver in defense coun-
sel’s equally pointed response, “I simply do not want to request one for the
battery.” Id. The Gutierrez court explained, “In making waiver determinations,
we look to the record to see if the statements signify that there was a ‘purpose-
ful decision’ at play.” Id. at 377 (citing United States v. Smith, 50 M.J. 451, 456
(C.A.A.F. 1999)). The court found waiver, reasoning, “[d]efense counsel was
presented with the opportunity to request or decline the mistake of fact in-
struction as to assault consummated by battery. He chose to decline it, and in
doing so he affirmatively waived his right to the instruction.” Id. at 377–78.
In Davis, the CAAF again rejected plain error review of a findings instruc-
tion. 79 M.J. at 332. The Davis court found waiver when an appellant argued
for the first time on appeal that the mens rea of “knowingly” applies to the
consent element of Article 120c.a(a)(2), UCMJ, 10 U.S.C. § 920c.a(a)(2). Davis,
79 M.J. at 331–32. At trial, before instructing the members, the military judge
identified the instructions he intended to give including the consent element
that the appellant raised as an issue on appeal. Id. at 330. After instructing
the members, the military judge “asked whether the defense had any objections
or requests for additional instructions,” and the defense counsel replied, “No
changes, sir.” Id. After marking his written instructions as an appellate ex-
hibit, the military judge again asked if there were any objections, and the de-
fense counsel replied, “No, Your Honor.” Id. The Davis court found, “By ex-
pressly and unequivocally acquiescing to the military judge’s instructions, Ap-
pellant waived all objections to the instructions, including in regards to the
elements of the offense.” Id. at 331 (internal quotation marks and citations
omitted).
In Rich, the CAAF again found waiver of a mistake of fact defense instruc-
tion as the court had found in Gutierrez, explaining “when counsel affirma-
tively decline[s] to object and offer[s] no additional instructions, counsel ex-
pressly and unequivocally acquiesce[s] to the military judge’s instructions, and
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his actions thus constitute waiver.” Rich, 79 M.J. at 476 (alterations in origi-
nal) (internal quotation marks omitted) (citing Davis, 79 M.J. at 332). In Davis,
the CAAF observed, “[W]hile we review forfeited issues for plain error, ‘we can-
not review waived issues at all because a valid waiver leaves no error for us to
correct on appeal.’” Davis, 79 M.J. at 331 (quoting United States v. Campos, 67
M.J. 330, 332 (C.A.A.F. 2009)). Nonetheless, under Article 66(c), UCMJ, the
Courts of Criminal Appeals have the unique statutory responsibility to affirm
only so much of the sentence that is correct and “should be approved.” Thus,
we retain the authority to address errors raised for the first time on appeal
despite waiver at trial. See, e.g., United States v. Hardy, 77 M.J. 438, 442–43
(C.A.A.F. 2018); United States v. Chin, 75 M.J. 220, 223 (C.A.A.F. 2016) (cita-
tion omitted) (addressing this court’s responsibility to “assess the entire record
to determine whether to leave an accused’s waiver intact, or to correct the er-
ror”).
3. Analysis
We find Appellant affirmatively waived appellate review of the findings in-
structions even though the Defense remained silent, neither objecting to the
instructions as given nor requesting additional instructions, after arguments
by counsel. We reach this conclusion from trial defense counsel’s earlier dis-
cussions with the military judge on the record. The military judge asked the
Defense if it had any objections to the final instructions he intended to give or
requested additional instructions. The Defense replied, “No, Your Honor.” The
military judge then asked if there were any other matters that the parties
needed to take up before calling the members, and the Defense again answered
in the negative.
Trial defense counsel did not just fail to object to the instructions, which
would trigger plain error review. See, e.g., Blanks, 77 M.J. at 241. Rather, Ap-
pellant reviewed the written instructions and conceded to them before they
were read to the members and they began their deliberations. See Davis, 79
M.J. at 332 (citing United States v. Wall, 349 F.3d 18, 24 (1st Cir. 2003)
(“[C]ounsel twice confirmed upon inquiry from the judge that he had ‘no objec-
tion and no additional requests [regarding the instructions].’ Having directly
bypassed an offered opportunity to challenge and perhaps modify the instruc-
tions, appellant waived any right to object to them on appeal.” (Alteration in
original))). Because trial defense counsel affirmatively declined to object to the
final instructions and offered no additional instructions, Appellant expressly
and unequivocally acquiesced to the findings instructions, and the actions of
his counsel thus constitute waiver. See Rich, 79 M.J. at 476 (citations omitted).
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We find no reason to pierce Appellant’s waiver in this case, see Hardy, 77
M.J. at 442–43; see also Chin, 75 M.J. at 223. 42 Trial counsel mentioned a “com-
petent person” once in his closing argument when he discussed the military
judge’s instructions and then gave reasons why NB did not consent to the sex-
ual conduct at issue. 43 Trial counsel also discussed the circumstances sur-
rounding NB’s lack of consent: NB was intoxicated, sick, and had difficulty
moving and speaking. Notably, trial counsel highlighted the surrounding cir-
cumstances that made it unreasonable to believe that Appellant held a reason-
able mistake of fact as to consent, especially when Appellant asked NB the
morning after the incident in question, “[A]re you okay, because it seems like
you didn’t want that last night.”
We also find no reason to pierce Appellant’s waiver of a mistake of fact
instruction tailored to address NB’s “capacity” to consent to the sexual act
charged in Specification 1 of Charge I because a tailored instruction was not
necessary. The instruction that was given—that “[m]istake of fact as to consent
means the accused held, as a result of ignorance or mistake, an incorrect belief
that the other person consented to the sexual conduct as alleged”—was suffi-
cient. It allowed the members to consider whether Appellant was mistaken
about any of the surrounding circumstances in determining whether NB gave
consent, including any mistake he may have labored under about her level of
intoxication.
We also decline to pierce Appellant’s waiver of the instruction on the ele-
ments of stalking that failed to include the timeframe that was charged in the
Specification of the Additional Charge. Further, we would find no material
prejudice to Appellant’s substantial rights under plain error review if there
was error to correct on appeal. See Knapp, 73 M.J. at 36. A military judge is
required to give the members instructions on findings that include “[a] descrip-
tion of the elements of each offense charged.” R.C.M. 920(e)(1). There is no
question that by failing to instruct that the Government had the burden to
prove beyond a reasonable doubt that the charged conduct occurred “between
on or about 1 January 2015 and 15 March 2015,” the members were without
42 Even if we were to conclude Appellant had forfeited this issue, rather than waiving
it at trial, we would not find plain error with the military judge’s instructions defining
consent, as the instruction is an accurate statement of the law, see United States v.
Pease, 75 M.J. 180, 185 (C.A.A.F. 2016), and was neither confusing nor misleading as
Appellant contends. We also find no basis in law, and Appellant asserts none, for Ap-
pellant’s contention that the military judge should have instructed the members that
“as a matter of law, NB was determined to be ‘competent.’”
43Trial counsel argued that “consent is a freely given agreement to the conduct at issue
by a competent person. A competent person, and the lack of consent may be inferred
based on the circumstances.” See MCM, pt. IV, ¶ 45.a.(g)(8)(A) and (C).
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restriction to convict Appellant of conduct that occurred outside the charged
timeframe. In Hale, discussed supra, a military judge instructed members on
the elements of an offense occurring “on or about” a date that was close in time
to when the reservist-appellant was not subject to military jurisdiction. 78 M.J.
at 272, 274–75. In testing the instruction for plain error, our superior court
looked at the evidence and arguments of counsel in reaching the conclusion
that the appellant had not shown material prejudice to a substantial right. Id.
at 274.
We similarly examine the evidence and arguments of counsel in the record
before us and find no material prejudice to a substantial right of Appellant.
Appellant had been recalled to active duty and was therefore under military
jurisdiction from 1 December 2014 through 1 May 2015. His voluntary activa-
tion began one month before the first date of the stalking offense, and Appel-
lant remained on active duty for six weeks after the end of the charging win-
dow. Most significant, Appellant and NB were predominantly in a long-dis-
tance relationship after mid-March 2015 when NB left for basic training. Tes-
timony at trial established that the underlying acts for the stalking offense
occurred before the beginning of their long-distance relationship when Appel-
lant was subject to military jurisdiction and “within the state of Oklahoma” as
charged. The Defense showed slides to the members in findings argument that
properly identified the charged timeframe. 44
Furthermore, there is no cause for concern that the members would con-
sider evidence of Appellant’s conduct after mid-March 2015—during times
when they were apart, and later in the year when Appellant visited NB in
Georgia—as proof of the stalking offense. This is because the charged conduct
was Appellant repeatedly maintaining “visual and physical proximity to [NB’s]
home and place of work,” which coincided with a timeframe early in their rela-
tionship when they lived and worked nearby and Appellant was unquestiona-
bly subject to military jurisdiction. Thus, as in Hale, the prospect of members
convicting Appellant of stalking based on acts that occurred when he was not
subject to the UCMJ “would be purely speculative,” 78 M.J. at 275. We there-
fore decline to grant Appellant relief for the military judge’s error in failing to
properly give a required instruction on the elements of the stalking offense not
44 Trial counsel also showed slides to the members in its findings argument. These
slides explained the Government’s burden to prove that the stalking offense happened
within the state of Oklahoma. However, unlike the Defense slides, neither the slides
nor oral arguments of the trial counsel identified the dates of the charged timeframe
for the stalking offense. As noted previously, these dates were properly identified in a
copy of the specification that was given to the members after court was assembled.
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only because Appellant waived any objection, but also because we find no prej-
udice even if there was error to correct on appeal.
H. Challenges to NB’s Victim Impact Statement
1. Additional Background
a. Notice to Appellant of NB’s Unsworn Statement
After the members announced findings, the military judge held an Article
39(a), UCMJ, session to allow both sides to offer their documentary evidence
for sentencing outside the presence of the members. After the Government ad-
mitted its evidence without objection, trial counsel informed the military judge
that NB intended to give an unsworn statement, a copy of which had been
given to the Defense after the members announced findings. Before providing
a copy to the court, the military judge asked the Defense if it “had an oppor-
tunity to review the unsworn statement.” Trial defense counsel replied, “Yes,
Your Honor, I have had an opportunity to review it.” The military judge asked,
“[A]re we going to need a discussion on that particular document?” Trial de-
fense counsel replied, “I don’t believe so, Your Honor, not given . . . the current
state of the law.”
Later in the session, trial counsel handed a copy of NB’s unsworn statement
to the military judge and explained that NB intended to read from it. The mil-
itary judge asked the Defense, “[S]hould we talk about the statement now, or
should we just hold on?” and then asked, “Have you had an opportunity to re-
view [the exhibit]?” Trial defense counsel acknowledged he did. The military
judge asked if the Defense had “any specific objections” to which trial defense
counsel replied, “No, Your Honor.” Before calling the members, the military
judge asked if there was anything further that the parties needed to take up.
Counsel for both parties answered in the negative.
b. Conduct of the Sentencing Hearing
When the court-martial resumed with members, trial counsel published
Appellant’s personal data and enlisted performance reports and called NB’s
sister to testify as the Government’s only sentencing witness. In three years
she saw NB “go through overwhelming amounts of stress, because of her fear
of [Appellant] coming after her.” Anytime NB would see a black truck or hear
the sound of a truck’s muffler, NB would be fearful it was Appellant. NB re-
layed to her sister “countless sleepless nights” and nightmares about Appellant
and things he had done to her.
The defense sentencing case consisted of Appellant’s oral and written un-
sworn statements, as well as Appellant’s biography, several photographs, two
Air Medals, character letters, a Southwest Asia Service Medal, numerous cer-
tificates and letters of appreciation, and documentation of other awards and
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recognition that Appellant received over 24 years of service. Appellant’s writ-
ten statement was marked as a defense exhibit and was admitted without ob-
jection. In his unsworn statements, Appellant asked the members to consider
that they were “required to give [Appellant] a dishonorable discharge, which
will strip away every single benefit earned over [his] service, to include the
retirement [Appellant was] currently entitled to apply for.” Appellant related
details of growing up in a military family; enlisting in the Air Force; transi-
tioning to the reserve component as an air reserve technician after completing
seven years of active duty service; and deploying three times after the attacks
on 11 September 2001. Appellant mentioned hardships from constant deploy-
ments, the death of his parents, and the loss of his home in Oklahoma due to
a tornado.
c. NB’s Unsworn Statement
After the Government and Defense rested, NB read from her written un-
sworn statement, see R.C.M. 1001A. 45 Without objection, NB covered a number
of issues and included information about (1) the impact to her of Appellant’s
uncharged act of strangling her in the shower when Appellant visited her at
the school in Georgia, which gave rise to NB reporting Appellant’s conduct to
law enforcement; (2) the impact to her of the investigation and testifying at
trial; (3) her reasons for testifying including her knowledge of past victims, and
concern about possible future victims; and (4) the impact to her unit of her
absence when she was preoccupied with testifying at Appellant’s trial.
d. Challenges to NB’s Unsworn Statement on Appeal
Appellant claims the military judge abused his discretion in allowing the
members to consider NB’s unsworn victim impact statement under R.C.M.
1001A. In a related issue, Appellant argues his trial defense counsel were in-
effective because they failed to object to NB’s statement. In response to Appel-
lant’s claims of ineffective assistance of counsel, we ordered and received dec-
larations from both trial defense counsel, Maj PF and Captain (Capt) ED. We
have considered whether a post-trial evidentiary hearing is required to resolve
any factual disputes and are convinced such a hearing is unnecessary. See
United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997); United States v.
DuBay, 37 C.M.R. 411, 413 (C.M.A. 1967) (per curiam).
Maj PF declared that in his experience, military judges treated victim im-
pact statements under R.C.M. 1001A in like manner as unsworn statements
45A victim’s right to be reasonably heard, including presentation of an impact state-
ment, is ordinarily exercised between the trial counsel’s and Defense’s presentation of
evidence. R.C.M. 1001(a)(1). Appellant did not object at trial or on appeal to the proce-
dure that was followed at the sentencing hearing.
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by an accused, and that military judges liberally construed the “directly relat-
ing to or arising from” standard. He did not believe any objection would have
been sustained because the contents of NB’s statement “generally f[e]ll within
the boundaries of R.C.M. 1001A.” Maj PF noted several strategic reasons for
refraining from objection, and explained that Appellant intended to raise sim-
ilar issues as matters in mitigation. These matters included the length of time
for the investigation, the administrative consequences associated with pending
judicial proceedings, and the mental strain of waiting for resolution of the
charges at trial.
Capt ED’s declaration largely focused on how interrupting NB’s delivery of
her unsworn statement by objecting in the presence of the members would be
viewed “as bullying the victim.” In deciding not to object, she also considered
NB’s “emotional demeanor and testimony in findings, the judge’s rulings on
[the Defense’s] previous objections, [and] the members’ response to NB’s testi-
mony and demeanor.” Ultimately, Capt ED decided that it was strategically
unwise to object because the members would use it to Appellant’s disad-
vantage, and it was “very likely” the military judge would have overruled the
objection. Rather than objecting, Capt ED focused the members on Appellant’s
“strong military record, his background, and life consequences of [a] dishonor-
able discharge and sex offender registration.”
2. Law
a. R.C.M. 1001A
A military judge’s interpretation of R.C.M. 1001A is a question of law we
review de novo. United States v. Barker, 77 M.J. 377, 382 (C.A.A.F. 2018) (ci-
tations omitted). Assuming that a military judge has a duty to evaluate an
objection to a victim impact statement the same as he would evaluate evidence
to determine admissibility, “[a] military judge abuses his discretion when he
admits evidence based on an erroneous view of the law.” Id. at 383 (citations
omitted). Thus, a military judge abuses his discretion when his ruling allows a
factfinder to consider a victim’s unsworn statement based on an erroneous view
of law, including an incorrect interpretation of R.C.M. 1001A.
A victim has a right to be reasonably heard in a sentencing hearing. Article
6b(a)(4)(B), UCMJ, 10 U.S.C. § 806b(a)(4)(B). Under R.C.M. 1001A, a victim in
a non-capital case may exercise the right to be reasonably heard through a
sworn or unsworn statement. R.C.M. 1001A(b)(4)(B). An unsworn statement
may be oral, written, or both. R.C.M. 1001A(e). Statements offered under
R.C.M. 1001A “may include victim impact or matters in mitigation.” R.C.M.
1001A(c). “‘[V]ictim impact’ includes any financial, social, psychological, or
medical impact on the victim directly relating to or arising from the offense of
which the accused has been found guilty.” R.C.M. 1001A(b)(2).
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United States v. Lull, No. ACM 39555
b. Waiver
Claims of error with respect to the admission of evidence are preserved if
a party both timely objects to the evidence and states the specific ground for
the objection. Mil. R. Evid. 103(a)(1). “When an appellant does not raise an ob-
jection to the admission of evidence at trial, we first must determine whether the
appellant waived or forfeited the objection.” United States v. Jones, 78 M.J. 37,
44 (C.A.A.F. 2018) (citation omitted).
The CAAF describes the difference between waiver and forfeiture as “[a]
forfeiture is basically an oversight; a waiver is a deliberate decision not to pre-
sent a ground for relief that might be available in the law.” 46 Campos, 67 M.J.
at 332 (citation omitted). While forfeited issues are reviewed for plain error, “a
valid waiver leaves no error . . . to correct on appeal.” Id. (citations omitted). In
determining whether an appellant’s failure to protest admission of evidence at
trial constitutes waiver, we consider whether there was an intentional relin-
quishment of a known right. Id. (citations omitted).
In Campos, trial counsel moved to admit a stipulation of expected testi-
mony of a witness. 67 M.J. at 331. The military judge explained to the appel-
lant that he had the right not to enter into the stipulation and it would not be
admitted without his consent. Id. The appellant indicated he understood the
military judge’s explanations and affirmatively accepted the stipulation as did
appellant’s trial defense counsel. Id. The military judge asked appellant’s coun-
sel if he objected to the stipulation, and counsel replied, “No, Your Honor.” Id.
On appeal, the CAAF held the appellant waived his challenge on appeal to
admission of the stipulation. Id. at 332. The court noted “[w]hile circumstances
may arise where a ‘no objection’ statement by a defense attorney is not enough
to demonstrate an intentional relinquishment of a known right,” that is not the
case where an appellant’s counsel “had advance notice” of an exhibit and “con-
sidered the impact . . . on his client’s case.” Id. at 332–33.
In United States v. Ahern, our superior court again found waiver and re-
jected plain error review where evidence was admitted following a “no objec-
tion” declaration by a trial defense attorney. 76 M.J. 194, 198 (C.A.A.F. 2017).
The Ahern appellant argued for the first time on appeal that the military judge
erred in admitting a recorded phone conversation between a witness, SS, and
the appellant. Id. at 195–96. The CAAF found the appellant “was fully aware
of the content of the phone calls prior to their admission, and introduced simi-
lar evidence in the form of the text message sent by SS.” Id. at 198. The CAAF
46Waiver can also occur by operation of law. See, e.g., United States v. Hardy, 77 M.J.
438, 441–42 (C.A.A.F. 2018).
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also found the appellant “had numerous opportunities to object to the admis-
sion of the phone conversations both before and during the trial,” but when
trial counsel moved to admit the phone calls, the appellant “affirmatively indi-
cated he would not contest that motion.” Id. Later in the trial, the appellant
“replied that he had ‘no objection’ when the Government actually sought to
admit the phone calls and play them for the panel.” Id.As discussed previously, Courts of Criminal Appeals have a unique statu-
tory responsibility to affirm only so much of the sentence that is correct and
“should be approved.” Article 66(c), UCMJ. Thus, we retain the authority to
address errors raised for the first time on appeal despite waiver at trial. See,
e.g., Hardy, 77 M.J. at 442–43; Chin, 75 M.J. at 223 (citation omitted).
c. Effective Assistance of Counsel
The Sixth Amendment guarantees an accused the right to effective assis-
tance of counsel. United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001). In
assessing the effectiveness of counsel, we apply the standard set forth in Strick-
land v. Washington, 466 U.S. 668, 687 (1984), and begin with the presumption
of competence announced in United States v. Cronic, 466 U.S. 648, 658 (1984).
Gilley, 56 M.J. at 124 (citing United States v. Grigoruk, 52 M.J. 312, 315
(C.A.A.F. 2000)).
Allegations of ineffective assistance of counsel are reviewed de novo. United
States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011) (citing United States v.
Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009)). “To prevail on an ineffective assis-
tance claim, the appellant bears the burden of proving that the performance of
defense counsel was deficient” and that this deficiency resulted in prejudice.
United States v. Captain, 75 M.J. 99, 103 (C.A.A.F. 2016) (citing Strickland,
466 U.S. at 698). Accordingly, we consider “(1) whether counsel’s performance
fell below an objective standard of reasonableness, and (2) if so, whether, but
for the deficiency, the result would have been different.” United States v.
Gutierrez, 66 M.J. 329, 331 (C.A.A.F. 2008) (citations omitted).
When evaluating the performance of counsel, we employ a “strong pre-
sumption that counsel’s conduct falls within the wide range of reasonable pro-
fessional assistance.” Strickland, 466 U.S. at 689. Since counsel are presumed
competent, an appellant must rebut this presumption by showing specific er-
rors that were unreasonable under prevailing professional norms. United
States v. Scott, 24 M.J. 186, 188 (C.M.A. 1987) (citation omitted). In effect, this
requires a “showing that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amend-
ment.” United States v. Dewrell, 55 M.J. 131, 133 (C.A.A.F. 2001) (citations
omitted). Failure to pursue a particular legal claim, however, is not necessarily
deficient conduct by counsel. “If that claim is not shown to have a reasonable
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probability of being found meritorious as a matter of law and fact, the failure
to pursue it is not error and certainly not ineffective assistance of counsel.”
United States v. Terlep, 57 M.J. 344, 349 (C.A.A.F. 2002).
3. Analysis
Appellant was sentenced on 5 January 2018, just over two weeks after this
court issued its decision in United States v. Hamilton, 77 M.J. 579 (A.F. Ct.
Crim. App. 2017) (en banc), aff’d on other grounds, 78 M.J. 335 (C.A.A.F.
2019). 47 In Hamilton, the appellant’s trial defense counsel objected to the ad-
mission of victim impact statements on the bases that they failed to comply
with R.C.M. 1001A. Id. at 583–84. This court held that victim impact state-
ments offered under R.C.M. 1001A are not “evidence,” and thus “the balancing
test in Mil. R. Evid. 403 is inapplicable to assessing the reasonable constraints
that may be placed upon such statements.” Id. at 586. We explained,
Mil. R. Evid. 403 addresses “legal relevance” and provides that
“evidence” may be excluded notwithstanding its logical rele-
vance. In the decision to allow a victim to exercise their right to
be heard on sentencing, a military judge is neither making a rel-
evance determination nor ruling on the admissibility of other-
wise relevant evidence. Instead, the military judge assesses the
content of a victim’s unsworn statement not for relevance, but
for scope as defined by R.C.M. 1001A.
Id. In Hamilton, we acknowledged the military judge has an “obligation to en-
sure the content of a victim’s unsworn statement comports with the defined
parameters of victim impact or mitigation as defined by the statute and R.C.M.
1001A.” 48 Id. at 585–86 (citing R.C.M. 1001A, Discussion (“A victim’s unsworn
statement should not exceed what is permitted under R.C.M. 1001A(c) . . . .
Upon objection or sua sponte, a military judge may stop or interrupt a victim’s
unsworn statement that includes matters outside the scope of R.C.M.
1001A.”)).
47 This court issued its en banc decision in Hamilton on 20 December 2017. See Ham-
ilton, 77 M.J. at 586.
48Our holding was limited to the determination that victim impact statements, like an
accused’s unsworn statement, are not evidence: “Reading the plain language of the
rules, we hold that unsworn victim impact statements offered pursuant to R.C.M.
1001A are not evidence.” Hamilton, 77 M.J. at 583 (citing United States v. Provost, 32
M.J. 98, 99 (C.M.A. 1991) (if an accused elects to make an unsworn statement, he is
not offering evidence)).
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The CAAF affirmed this court’s decision in Hamilton on grounds that the
appellant suffered no prejudice by “[t]he victim impact statements . . . [that]
d[id] not comply with the requirements of R.C.M. 1001A (2016), and, thus, were
improperly admitted.” United States v. Hamilton, 78 M.J. 335, 342, 343
(C.A.A.F. 2019). Consequently, the CAAF did not reach the question whether
R.C.M. 1001A statements are subject to the Military Rules of Evidence. Id. at
342. The CAAF observed, “in those cases where a military judge complies with
the detailed parameters set forth in R.C.M. 1001A (2016) and exercises sound
discretion in determining whether the ‘right to be reasonably heard’ is ex-
ceeded, resolution of [the issue whether R.C.M. 1001A statements are subject
to the Military Rules of Evidence] is unlikely to be dispositive.” 49 Id. Although
the military judge remains a gatekeeper for victim impact statements, an ap-
pellant nonetheless has a duty to state the specific grounds for objection in
order to preserve a claim of error. See generally, id. at 340 n.5 (noting the ap-
pellant’s challenge to the victim impact statement on appeal was “far clearer
than the basis for his objections at trial,” but nonetheless would fail under the
more stringent plain error test because there was no prejudice).
Because the pertinent law at the time of Appellant’s sentencing hearing
has not changed between Appellant’s sentencing and his appeal, we evaluate
Appellant’s claims for waiver and not plain error. See Davis, 79 M.J. at 331
(review for plain error is appropriate “when a new rule of law exists, as an
appellant gets the benefit of changes to the law between the time of trial and
the time of his appeal” (alteration, internal quotation marks, and citations
omitted)). After the members announced findings, the military judge twice
asked the Defense if it had an opportunity to review NB’s unsworn statement,
and each time the Defense acknowledged it did. After the first inquiry by the
military judge, the Defense informed the court it did not believe any discussion
about the statement was needed given the “current state of the law.” After the
military judge was given a copy of the statement, he pointedly asked the De-
fense if it had “any specific objections.” Trial defense counsel replied, “No, Your
Honor.” Before calling the members, the military judge asked if there was an-
ything further that the parties needed to take up, and the Defense answered
in the negative.
On these facts we find trial defense counsel’s actions at the sentencing
hearing amounted to waiver of the issue whether matters NB presented to the
members was within the scope of a victim’s unsworn statement under R.C.M.
49“Of course, to the extent that provisions of the Military Rules of Evidence contradict
the crime victim’s right to be ‘reasonably heard’ under R.C.M. 1001A (2016), see, e.g.,
M[il]. R. E[vid]. 603, the clear intent of Congress and the President dictate that the
latter controls.” Hamilton, 78 M.J. at 335, 342 n.9 (citing Article 6b, UCMJ, 10 U.S.C.
§ 806b).
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1001A. Appellant’s trial defense counsel manifested awareness of the “current
state of the law,” which allowed a victim to inform the members of any social
or psychological impact that was directly relating to or arising from the of-
fenses of which Appellant was found guilty. R.C.M. 1001A(b)(2); see Hamilton,
77 M.J. at 586. In his colloquy with the Defense, the military judge presented
defense counsel with four opportunities to make an objection, even asking if
there were any “any specific objections” and counsel responded that he had
none. As we noted earlier in our discussion of waiver, we recognize that this
court is permitted, under Article 66(c), UCMJ, to review issues affirmatively
waived by an appellant at trial. Chin, 75 M.J. at 223. Accordingly, after having
reviewed the entire record, and considering Appellant’s claims of ineffective
assistance of counsel, which we discuss next, we decline to pierce Appellant’s
waiver.
We turn then to Appellant’s claims that his counsel were ineffective by fail-
ing to object to the contents of NB’s unsworn statement that referenced impact
due to uncharged misconduct, trial participation, past and future victims, and
impact on others. We consider each contention in turn.
a. Uncharged Misconduct
In her unsworn victim impact statement, NB told the members that the
“events of this relationship had significant impact on both [her] personal and
professional life,” and “negatively impacted [her] ability to work.” She ex-
plained how Appellant’s uncharged act of choking her in the shower when Ap-
pellant visited her at the school in Georgia was “nearly devastating for [her]
professional career.” She almost failed defensive tactics training required for
law enforcement duties “because of the fear [Appellant] instilled in [her] by his
actions.” She described how she crawled into a fetal position against a wall and
was paralyzed with fear when she was tasked to demonstrate how to defend
herself against someone who role-played a male aggressor. She explained that
her instructors were aware of Appellant’s conduct in her dorm room, and they
gave her one last chance to demonstrate a proper response to an assailant. She
knew that failure would mean losing her new civilian job. She told the mem-
bers she nonetheless graduated with a leadership award, a high grade point
average, and achieved qualification as an expert in marksmanship.
Appellant contends in this appeal that NB’s unsworn statement should
have been limited to the offenses of which Appellant was found guilty; instead,
NB referred to “the relationship” itself as having injurious impact to her. He
claims his counsel were ineffective by failing to object to NB’s presentation of
uncharged misconduct, noting that Appellant was not tried for strangling NB
in the shower in December 2015.
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We determine that even if trial defense counsel were deficient, Appellant
has not met his burden to show a reasonable probability that the objectionable
portions of NB’s unsworn statement would have changed the outcome or un-
dermined confidence in the sentence. See Strickland, 466 U.S. at 694–96; see
id. at 697 (“If it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, which we expect will often be so, that course should
be followed.”). Consideration of prejudice includes an examination of the sen-
tencing hearing to determine if NB’s objectionable statements would “have al-
tered the sentencing profile presented to the sentencing judge,” or in this case,
the members. Id. at 700.
To begin with, NB’s victim impact statement elaborated on evidence about
the relationship that the members heard in findings. The underlying facts of
the shower incident were already before the members having been properly
admitted under Mil. R. Evid 404(b) to show Appellant’s motive or intent to
dominate and control NB with regard to the charged strangulation offense. NB
testified that the shower incident made her more fearful than other incidents
because it revealed to her that she had a limited “ability to overcome [Appel-
lant]” and “to get away from him.” She explained in her testimony that the
incident caused her to realize the “possibility [she] could have died” and it “re-
ally sunk in that [she had] to do something” because “if [Appellant] does it
again [she] might not make it.” She testified, “He’s already followed me. He’s
already watched me;” and, referring to both strangulation incidents, she testi-
fied “[h]e’s already done that to me twice.” The testimony of a classmate sub-
stantiated NB’s explanation that her reporting of the shower incident set in
motion an investigation of the offenses for which Appellant was convicted.
NB’s sister similarly testified about the continuing impact of Appellant’s
offenses, explaining how in three years she observed NB “go through over-
whelming amounts of stress, because of her fear of [Appellant] coming after
her.” NB’s sister illustrated NB’s fear by describing the “countless sleepless
nights that [NB] told [her] about, where [NB] wakes up having nightmares
about [Appellant] and things that he’s done to [NB].” Thus, NB’s unsworn
statement about the relationship, and the shower incident specifically, was not
new information that the members heard for the first time at the sentencing
hearing. Rather, they were related to the facts and circumstances of the case.
On no fewer than four occasions, the military judge instructed the members
that Appellant was to be sentenced for the offenses of which he was found
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guilty. 50 We presume the members followed this instruction in the absence of
evidence of the contrary. See Washington, 57 M.J. at 403 (citation omitted).
Accordingly, we find trial defense counsel were not constitutionally ineffec-
tive under the Sixth Amendment by failing to object to NB’s comments regard-
ing the shower incident and the relationship.
b. Investigation and Trial Participation
After NB’s classmate reported Appellant’s conduct to an instructor, NB be-
came preoccupied with the investigation. She explained that the investigation
and trial “has been a 3-year experience and process for [her]. It has been a cycle
that has continuously played on [a] loop, but now the cycle is broken.” NB de-
scribed in general terms how participating in the investigation and trial was
personally and professionally difficult, and she now knew “how difficult it is”
and “why people don’t come forward.” She told the members about stress from
“listening to people manipulate, twist things, [and] take things out of context
just to fit their agenda.” She now knew “the torture and living nightmare this
process is” and “what it feels like to have people think that [she is] a liar” with
“ulterior motives for coming forward.” She again spoke in general terms about
reliving and feeling “things that [she] never wanted to feel again,” and her re-
gret in not reporting Appellant’s sexual assault immediately after it happened.
NB also gave the members a specific example of the stress she felt at the pro-
spect of testifying, describing three panic attacks she experienced the morning
she was called as a witness in findings. NB also gave specific examples of the
impact of the case on her civilian career and on her duties in the Army Reserve
as her unit prepared to deploy to the Middle East. In her own words,
I wanted to focus on my career, but with the distraction of this
case it kept me preoccupied with things as I was trying to move
forward. Again, had I not gratefully had the support from a
friend, I could have potentially lost my job in the beginning of
my career.
50 The military judge explained, “It is the duty of each member to vote for a proper
sentence for the offenses of which the accused has been found guilty[,] . . . [a] single
sentence shall be adjudged for all offenses of which the accused has been found guilty.”
The military judge then reiterated, “Your deliberations should focus on an appropriate
sentence for the accused for the offenses of which the accused stands convicted.” Later
in the context of sex offender registration, the military judge instructed, “Your duty is
to adjudge an appropriate sentence for this accused based upon the offenses for which
he has been found guilty . . . .”
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Appellant contends that NB’s unsworn statement was an improper com-
ment on Appellant’s right to plead not guilty and to require the Government to
prove its case, and thus constitutional error. We disagree.
In United States v. Stephens, this court observed it would be unreasonable
for someone who commits a sexual assault offense “to argue it is unforeseeable
that the victim of a sexual assault would be called [to] testify at a trial.” 66
M.J. 520, 528 (A.F. Ct. Crim. App. 2008) (holding that evidence regarding the
impact on a thirteen-year-old sexual assault victim of having to testify on mul-
tiple occasions was proper evidence in aggravation), aff’d 67 M.J. 233 (C.A.A.F.
2009). Just as this court concluded in Stephens that “[h]aving to testify at trial
. . . is directly related to, and results from, the commission of the offense” under
R.C.M. 1001(b)(4), we find the “directly relating to or arising from” language of
R.C.M. 1001A would likewise encompass a victim’s unsworn statement about
the impact of participating in an investigation and being called to testify at
trial. 51 Id.The CAAF affirmed this court’s decision in Stephens, observing that “[t]es-
timony as to the effect of the process, including the trial, on the victim, as was
admitted here, certainly comes within the rather broad ambit” of R.C.M.
1001(b)(4). United States v. Stephens, 67 M.J. 233, 235 (C.A.A.F. 2009). How-
ever, “a rule or other provision of the Manual for Courts-Martial cannot sanc-
tion a violation of Appellant’s constitutional rights.” Id. (citing United States
v. Lopez, 35 M.J. 35, 39 (C.M.A. 1992) (noting that the military justice system
has hierarchical sources of rights beginning with the Constitution and that
“[n]ormal rules of statutory construction provide that the highest source au-
thority will be paramount, unless a lower source creates rules that are consti-
tutional and provide greater rights for the individual”)). Second, “sentencing
evidence is subject to the requirements of Military Rule of Evidence (M.R.E.)
403.” Id. (citations omitted).
In Appellant’s sentencing hearing, as in Stephens, “there was no explicit
comment” by the victim “concerning Appellant’s invocation of his rights but
rather, a brief reference to the effect of the entire proceeding (including, but
not limited to, the trial) on Appellant’s victim.” Id. at 236. Without specific
attribution to Appellant or his trial defense counsel, NB told the members
about stress from not being believed and from people believing she had ulterior
51There may be a difference between “arising from” and “resulting from” but it is un-
necessary to our analysis. Compare R.C.M. 1001A(b)(2) with R.C.M. 1001(b)(4). How-
ever, plain and unambiguous language in a Rule for Courts-Martial should be applied,
not interpreted. United States v. Leonard, 21 M.J. 67, 69 (C.M.A. 1985) (citations omit-
ted). It is also unnecessary to consider in this case if a crime victim’s “right to be rea-
sonably heard” under Article 6b(4)(B), UCMJ, is subsumed by the rule.
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motives. She did not explicitly comment on Appellant exercising his right to
plead not guilty and to a trial of the facts. Accordingly, we find no constitutional
violation for the reasons articulated by our superior court. Unlike Stephens,
however, this ends the inquiry. Evidence offered in aggravation under R.C.M.
1001(b)(4) is subject to Mil. R. Evid. 403 balancing to determine if its probative
value is substantially outweighed by the danger of unfair prejudice. In con-
trast, and as discussed previously, an unsworn victim impact statement pre-
sented under R.C.M. 1001A is not “evidence,” and thus “the balancing test in
Mil. R. Evid. 403 is inapplicable to assessing the reasonable constraints that
may be placed upon such statements.” Hamilton, 77 M.J. at 586.
Notwithstanding our conclusion, we caution military judges, as the CAAF
cautioned trial counsel in Stephens, to use care in allowing members to con-
sider victim impact statements, which, like evidence in aggravation, “may
cross the line into impermissible comment on an accused’s invocation of his
constitutional rights. While [the CAAF found] no abuse of discretion [in Ste-
phens], it is not difficult, particularly in cases involving sexual abuse, to envi-
sion such a case.” Id.
Accordingly, we find trial defense counsel were not constitutionally ineffec-
tive under the Sixth Amendment by failing to object to NB’s comments regard-
ing the investigation and trial process.
c. Past and Future Victims
NB told the members that she “didn’t think [she] was going to testify, [or]
be able to testify.” And, the reason she was in court “is because other people
previously did not speak their truth and tell their story.” She explained, “If and
when these things happened to the next target, [she] wouldn’t have been able
to live with [her]self knowing that [she] could have prevented it.” She believed
if she had not cooperated in the investigation, Appellant “would have found
another weak and vulnerable girl to fall into his cycle of chaos.” NB “knew [she]
wasn’t the first one, and it’s likely that [she] wouldn’t be the last” if she had
not told her story. “Going through this process has been one of the hardest
things [she has] done.”
Appellant contends his counsel were ineffective by failing to object to NB’s
statements that were outside the scope of R.C.M. 1001A because Appellant was
not convicted of an offense against anyone other than NB. To the extent that
NB’s statement related to a previous victim, evidence at trial indicated that
NB was aware Appellant had engaged in acts of misconduct with a previous
intimate partner, PH. The members also received evidence in findings of Ap-
pellant’s sexual misconduct with PH that was admitted under Mil. R. Evid.
413. As to the possibility of future victims, we find it was not unreasonable for
a victim of the offenses for which Appellant was found guilty to be concerned
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about the possibility of Appellant doing to others what he had been found guilty
of doing to her. Importantly, trial defense counsel could reasonably conclude
that NB’s concern for past and future victims was one and the same as her own
fear, and thus was a matter “directly relating to or arising from” the offenses.
R.C.M. 1001A. Had trial defense counsel objected to NB’s assertions on
grounds that it was beyond the scope of R.C.M. 1001A, Appellant has not
shown it was likely the objection would have been sustained.
We find Appellant’s trial defense counsel did not “ma[k]e errors so serious
that counsel was not functioning as the counsel guaranteed the defendant by
the Sixth Amendment.” Dewrell, 55 M.J. at 133 (internal quotation marks
omitted). Thus, we are not persuaded that Appellant has demonstrated a rea-
sonable probability that a challenge to NB’s statements about past and future
victims would have been found meritorious as a matter of law, and that the
failure to object at the sentencing hearing amounted to ineffective assistance
of counsel. See Terlep, 57 M.J. at 349.
d. Impact on Others
As part of her victim impact statement, NB related that Appellant’s actions
affected “multiple people in personal and professional ways,” and “utilize[d]
government workers’ time and attention across multiple states.” In spite of
these generalized statements, NB did not identify who was impacted or how.
In contrast, NB provided details of how her participation as a witness at Ap-
pellant’s trial affected her reserve unit that was preparing to deploy, although
her statement was largely couched in terms of its impact to herself:
Lastly, this has had a lasting impact on my military career. I’m
within 20 days of a 400-day mobilization to Iraq and Syria. Even
as an E4 I’m in a leadership role. I have soldiers I’m accountable
for and accountable to. I have been mentally absent due to focus-
ing and preoccupation with this case and the stress of testifying.
We are in the final stages of preparation, which are stressful[,]
busy[,] and intense. I cannot be there to do my final qualification
for being my team’s gunner, and I was removed from being the
gunner on my team.
NB gave further details of the impact of her absence, including an incident
involving one of her soldiers that happened on a Thursday evening when she
was on standby after testifying a day earlier at Appellant’s trial:
Not only my team had to be rearranged to re-create a team in
my absence, but because of this[,] other teams had to be rear-
ranged, and it posed a risk of making our company non-deploy-
able due to not having enough fully qualified teams to create a
deployable roster. This weighed on me heavily, because of the
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bond my gunner team had, and also because I felt I was letting
them down and not being able to focus and support them. We
have overcome and succeeded, not to my credit but to the credit
of the soldiers I serve with. Thankfully, I have a good team and
remain close to them, even like family, in my absence.
Additionally, just Thursday night one of my soldiers ended up in
a hospital due to stroke. I was not able to be there for him.
Thankfully, another soldier stepped up to be by his side. How-
ever, again due to this I was not there for my soldier. I was not
able to be with him, and I left him behind because I had no
choice, as I am here. In this critical time for our team, bonding
and building our strength, I’m absent. Still, I am grateful for the
team I have because they have become my family.
Appellant contends that NB’s statement was outside the scope of R.C.M.
1001A. To the extent NB told the members about consequences to others as a
result of testifying at Appellant’s trial, we agree and find it remarkable that
the Defense did not raise any objection. 52 The scope of R.C.M. 1001A includes
impact directly relating to or arising from an offense of which an appellant is
found guilty. The rule does not countenance impact to anyone other than a
“crime victim,” which, in the record before us, does not include “multiple peo-
ple,” “government workers,” or “Soldiers.” And furthermore, it is nexus to crime
that is the relevant inquiry under the rule, and not consequences of being away
from one’s unit owing to the burden of testifying at trial.
However, we can again resolve Appellant’s ineffectiveness claim on the
prejudice prong, without determining whether counsel’s performance fell below
an objective standard of reasonableness. Strickland, 466 U.S. at 697. Upon re-
view of the record, Appellant has not met his burden of establishing “a reason-
able probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. “A reasonable probability is
a probability sufficient to undermine confidence in the outcome.” Id. We again
examine if NB’s objectionable statements would “have altered the sentencing
profile” presented to the members. Strickland, 466 U.S. at 700.
Significantly, NB did not request, and trial counsel did not argue for, a
heightened sentence due to the portion of NB’s statement that is in question.
52Capt ED’s concern that objecting in the presence of the members might be viewed as
“bullying” the victim is inapt, because the military judge gave the Defense an oppor-
tunity to challenge NB’s prepared statement in an Article 39(a), UCMJ, session held
outside the presence of the members.
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Rather, trial counsel used NB’s concern for her hospitalized Soldier and
“whether her troops are going to be ready to deploy” to illustrate how Appel-
lant’s offenses damaged “[a] strong woman who cares for other people,” and
then reminded the members about NB’s findings testimony where she stated
she had difficulty “admitting” that she “can’t even protect [her]self” from Ap-
pellant even while she is “supposed to hold [her]self to a certain level and pro-
tect others.” 53
We also evaluate this portion of NB’s victim impact statement in the con-
text of each party’s sentencing evidence. The Government’s sentencing case
was convincing even though it was succinct. NB’s sister testified as the Gov-
ernment’s only witness, but her relationship and communication with NB sub-
stantiated NB’s extensive testimony in findings about the stress and fear NB
experienced from Appellant’s conduct. Other findings witnesses corroborated
this impact, but NB’s sister’s testimony at the sentencing hearing was most
compelling. Anytime NB would see a black truck or hear the sound of a truck’s
muffler, NB would be fearful it was Appellant. As discussed previously, NB
relayed to her sister about nightmares and lost sleep she experienced thinking
about Appellant’s conduct. Although not part of the Government’s case, evi-
dence in the record of NB’s demeanor as she delivered her unsworn statement
lends credence to her findings testimony that Appellant’s conduct affected her
three years later in the manner that her sister described.
Appellant’s sentencing case was comparatively weak and consisted almost
entirely of documentation of Appellant’s superior duty performance over the
span of 24 years, first on active duty and then as a reservist. The focus of the
Defense was Appellant’s career, the loss of retirement benefits, collateral con-
sequences of sex offender registration, and personal hardships including the
amount of time he was under investigation and waiting to be tried. Appellant
apologized to NB but offered little insight about himself or explanation of his
conduct on which a factfinder might rely to lessen an otherwise appropriate
sentence. 54
We again determine that Appellant has not met his burden to show a rea-
sonable probability that the objectionable portions of NB’s unsworn statement
53Trial counsel summarized NB’s trial testimony in sentencing argument, explaining
that NB’s “career is built on her need to defend others, [and] her belief that she can
defend others. You saw her testifying that she does not have that ability any more.
How can she defend others when she cannot even defend herself?”
54 At the outset of the sentencing hearing, the military judge informed Appellant that
he “will have the opportunity to present evidence in extenuation and mitigation of the
offenses of which [he] ha[d] been found guilty. That is matters about the offenses or
[him]self, which [he] want[s] the court to consider in deciding [his] sentence.”
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would have changed the outcome or undermined confidence in the sentence.
See Strickland, 466 U.S. at 694–96.
I. Effective Assistance of Counsel—Value of Retirement Benefits
Appellant claims trial defense counsel were ineffective by failing to offer
evidence of the value of military retired pay Appellant would have been eligible
to receive if he had not received a mandatory dishonorable discharge. We are
not persuaded that Appellant’s counsel provided ineffective assistance in this
aspect of the representation.
1. Additional Background
In response to Appellant’s claims, we ordered and received declarations
from Maj PF and Capt ED. We again considered whether a post-trial eviden-
tiary hearing is required to resolve any factual disputes and are convinced such
a hearing is unnecessary. See United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F.
1997); United States v. DuBay, 37 C.M.R. 411, 413 (C.M.A. 1967) (per curiam).
Maj PF declared that Appellant “specifically mentioned the loss of his po-
tential retirement in his verbal and written unsworn statements.” He noted
that the panel contained two senior Air Force officers, Col P and Lt Col G. The
Defense believed the inclusion of a retirement pay chart not only would have
been superfluous, but it would have been patronizing to the members.
Capt ED’s declaration states the Defense’s sentencing case focused on Ap-
pellant’s lengthy military service. The Defense highlighted his extensive train-
ing, “stunning” performance reports, deployments, and awards and decora-
tions. The Defense also submitted several character letters addressing Appel-
lant’s outstanding military career. The Defense emphasized the life conse-
quences of the mandatory dishonorable discharge including Appellant’s loss of
retirement pay in Appellant’s unsworn statement and again in sentencing ar-
gument. Capt ED explained that evidence of Appellant’s salary was listed in
the Appellant’s Personal Data Sheet that the Government admitted into evi-
dence. Capt ED did not think that evidence of Appellant’s projected loss of re-
tirement pay was necessary. She explained,
There are multiple ways to argue loss of retirement, and I chose
an approach that was best fitting our sentencing strategy. I
chose to focus not how much money the Appellant lost, but that
he lost his retirement and over twenty years of his military ca-
reer. I also relied on the members’ military experience and intel-
ligence to estimate the amount of money the Appellant was los-
ing in his retirement pay. At the end, in addition to highlighting
the Appellant’s loss of retirement, I also believed that stressing
the lifelong consequences of being convicted of a felony-level of-
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fense and [that Appellant was] required to register as a sex of-
fender was an effective strategy to minimize his confinement
risk.
2. Analysis
The declarations of Appellant’s trial defense counsel explain the reasons
why the Defense chose to argue the significance of a dishonorable discharge
without evidence of the value of the retirement benefits Appellant may have
been eligible to receive. Their explanation of the defense sentencing strategy
included reasonable considerations that we will not second-guess. Mazza, 67
M.J. at 475. While Appellant’s appellate counsel may have chosen a different
sentencing strategy, it does not mean that the strategy used at trial was objec-
tively unreasonable. We evaluate trial defense counsel’s performance not by
the success of their strategy, but whether the counsel made reasonable choices
from the alternatives available at trial. Dewrell, 55 M.J. at 136 (quoting United
States v. Hughes, 48 M.J. 700, 718 (A.F. Ct. Crim. App. 1998)). We find that
they did, and therefore conclude that Appellant was not denied effective repre-
sentation in sentencing under the Sixth Amendment in this respect.
J. Sentencing Instructions
Appellant claims the military judge erred by failing to sua sponte provide
the members with an instruction clarifying that NB was giving a victim impact
statement that was not under oath as he did for Appellant’s unsworn state-
ment. Appellant also claims error in that the military judge failed to instruct
on the impact of a punitive discharge on retirement benefits Appellant claims
he would have been eligible to receive.
1. Additional Background
After the close of evidence and before NB read her unsworn victim impact
statement, the military judge held an Article 39(a), UCMJ, session with coun-
sel for both parties to discuss sentencing instructions. The military judge and
counsel discussed tailoring the instruction regarding Appellant’s unsworn
statement; however, there was no discussion about instructing on the unsworn
statement NB intended to read to the members.
After court was called to order with the members present, the military
judge asked, “Does the victim—the main victim in the case wish to make an
unsworn statement?” Trial counsel answered in the affirmative and the mili-
tary judge directed trial counsel to “mark that written unsworn statement as
a court exhibit.” After trial counsel complied, the military judge asked, “Does
she wish to make an oral statement as well?” Trial counsel answered in the
affirmative, and NB then stood at the podium and read her written statement
to the members. NB then returned to her seat in the gallery and trial counsel
published her written statement to the members. NB’s written statement
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bears no indicia that it was sworn as would an affidavit or declaration made
under penalty of perjury.
Before arguments by counsel for both parties, the military judge gave the
members substantive instructions to guide them in reaching a sentence. The
instructions he provided on their use of an unsworn statement did not specifi-
cally mention NB’s unsworn victim impact statement; the first half of his in-
struction was tailored to Appellant’s unsworn statement. The members were
instructed that,
The court will not draw any adverse inference from the fact that
the accused has elected to make a statement which is not under
oath. An unsworn statement is an authorized means for an ac-
cused to bring information to the attention of the court and must
be given appropriate consideration. The accused cannot be cross-
examined by the prosecution or interrogated by court members
or myself upon an unsworn statement. But the prosecution may
offer evidence to rebut statements of fact contained in it.
Immediately following this portion of the instruction, the military judge
provided general guidance on the members’ consideration of an unsworn state-
ment that did not specifically mention Appellant other than a factual state-
ment that Appellant had referenced sex offender registration in his unsworn
statement:
The weight and significance to be attached to an unsworn state-
ment rests within the sound discretion of each court member.
You may consider that the statement is not under oath, it’s [sic]
inherent probability or improbability, whether it is supported or
contradicted by other evidence in the case, as well as any other
matter that may have a bearing upon its credibility.
In weighing an unsworn statement, you are expected to use your
common sense and your knowledge of human nature and the
ways of the world. The accused’s unsworn statement included
the accused’s personal feelings about sex offender registration.
An unsworn statement is a proper means to bring information
to your attention, and you must give it appropriate considera-
tion.
The military judge also provided instructions on the effect of a dishonorable
discharge, which were silent about its impact on retirement benefits. After re-
minding the members that the law imposes a mandatory minimum sentence
of a dishonorable discharge for the offense of sexual assault, the military judge
explained,
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United States v. Lull, No. ACM 39555
The stigma of a punitive discharge is commonly recognized by
our society. A punitive discharge will place limitations on em-
ployment opportunities and will deny the accused other ad-
vantages which are enjoyed by one whose discharge characteri-
zation indicates that he has served honorably. A punitive dis-
charge will affect an accused’s future with regard to his legal
rights, economic opportunities, and social acceptability. Such a
discharge deprives one substantially of all benefits administered
by the Department of Veteran Affairs and the Air Force estab-
lishment. A dishonorable discharge is reserved for those who are
separated under conditions of dishonor after conviction of seri-
ous offenses of a civil or military nature warranting such severe
punishment.
After the arguments of counsel for both parties, the Defense neither ob-
jected to the omission of an instruction tailored to NB’s unsworn statement,
nor did the Defense request such an instruction. Likewise, the Defense neither
objected to the instruction that was given on the impact of a punitive discharge,
nor requested an instruction specifically tailored to provide the members with
information about the impact of a dishonorable discharge on Appellant’s eligi-
bility for retirement benefits.
At the conclusion of reading the instructions to the members, the military
judge asked, “[D]oes either side object to or request any additional instruc-
tions? The Defense answered, “No, Your Honor.”
2. Analysis
We find by “expressly and unequivocally acquiescing to the military judge’s
instructions,” Appellant waived appellate review of his challenges to the sen-
tencing instructions that were given to the members by the military judge. See
Davis, 79 M.J. at 331 (citing United States v. Smith, 9 C.M.R. 70, 72 (C.M.A.
1953)). We find no reason to pierce Appellant’s waiver in this case, see Hardy,
77 M.J. at 442–43; see also Chin, 75 M.J. at 223, because the military judge
committed no error. An instruction on a victim’s unsworn statement is not one
of the mandatory sentencing instructions under R.C.M. 1005(e). See also
United States v. Miller, 58 M.J. 266, 268 (C.A.A.F. 2003). And, the members
were not given inaccurate or misleading instructions as to its use. Conse-
quently, the omission of a tailored instruction on NB’s unworn victim impact
statement was not legal error. In the context in which NB presented her state-
ment, we have no reason to believe that the members were incapable of apply-
ing the military judge’s instruction on consideration of “an unsworn statement”
to NB’s unsworn statement as well as Appellant’s. Thus, the military judge did
not err by failing to give a tailored instruction on NB’s unsworn statement.
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“The test for when a military judge must instruct on the impact of a puni-
tive discharge on retirement benefits is simple: There must be (1) an eviden-
tiary predicate and (2) a request for the instruction.” United States v. Easterly,
79 M.J. 325, 326 (C.A.A.F. 2020) (citing United States v. Boyd, 55 M.J. 217, 221
(C.A.A.F. 2001)). Here, we need not decide whether Appellant’s time and status
as a member in the Air Force Reserve established the necessary evidentiary
predicate because “no request was made, and the military judge thus had no
duty to give the instruction.” Id. Thus, the military judge did not err by failing
to instruct on the impact of a punitive discharge on retirement benefits.
K. Sentence Severity
Appellant claims his sentence that included confinement for four years and
a dishonorable discharge was inappropriately severe, and that the most severe
sentence that should be approved is six months of confinement. For support,
Appellant highlights that “[h]e served more than 24 years in the military,” de-
ployed several times, and had a flawless service record until the incidents for
which he was convicted. 55
At the same time Appellant argues his sentence is inappropriately severe,
Appellant renews his argument that there were multiple errors that affected
Appellant’s sentence, and asks this court to either reassess and impose a sen-
tence that would have been adjudged but for the errors, or remand for a re-
hearing. See United States v. Boone, 49 M.J. 187, 197 (C.A.A.F. 1998). Appel-
lant draws our attention to NB’s unsworn statement and the military judge’s
failure to instruct the members on the use of that statement, his counsel’s fail-
ure to introduce evidence of the retired pay Appellant could have received if a
punitive discharge had not been adjudged, statements made by trial counsel in
sentencing argument, and that NB’s sister was not a victim because Appellant
“was not convicted of any offense related to her.” 56
55Appellant adds that “[h]e was honorably discharged from active duty after his court-
martial.” As noted previously, Appellant’s service on active duty was characterized as
honorable, but there is no evidence he was discharged from either the Air Force or the
Air Force Reserve after the court-martial.
56Appellant’s unqualified contention that NB’s sister was not a victim and that Appel-
lant was not convicted of any offense related to her is incorrect as a matter of fact and
law. As proof of the stalking conviction, the evidence showed NB’s sister grabbed a
knife and was placed in fear of her life and for the lives of her children when she wit-
nessed Appellant’s attempt to force entry into NB’s home. Evidence in aggravation
includes impact “to any person or entity who was a victim of an offense committed by
the accused” as well as “circumstances directly relating to or resulting from the of-
fenses of which the accused has been found guilty.” R.C.M. 1001(b)(4).
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We “may affirm only such findings of guilty and the sentence or such part
or amount of the sentence, as [we] find correct in law and fact and determine[ ],
on the basis of the entire record, should be approved.” Article 66(c), UCMJ. “We
assess sentence appropriateness by considering the particular appellant, the
nature and seriousness of the offense[s], the appellant’s record of service, and
all matters contained in the record of trial.” United States v. Anderson, 67 M.J.
703, 705 (A.F. Ct. Crim. App. 2009) (per curiam) (citations omitted). Our review
extends to mandatory minimum sentences established in Article 56, UCMJ, 10
U.S.C. § 856. United States v. Kelly, 77 M.J. 404, 406 (C.A.A.F. 2018). While
we have great discretion in determining whether a particular sentence is ap-
propriate, we are not authorized to engage in exercises of clemency. United
States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
We have given individualized consideration to Appellant, the nature and
seriousness of his offenses, his record of service, and all other matters con-
tained in the record of trial. In addition, we have considered Appellant’s
claimed errors, including waived issues raised for the first time on appeal. Un-
derstanding we have a statutory responsibility to affirm only so much of the
sentence that is correct and should be approved, Article 66(c), UCMJ, we de-
termine the sentence, including the mandatory dishonorable discharge which
we have the authority to disapprove, is not inappropriately severe. Appellant
was adjudged a fraction of the maximum term of confinement of 33 and a half
years. Appellant’s sexual assault of NB, the violence he demonstrated by stran-
gling NB as she relaxed with him on her couch, and the fear he brought about
in NB and NB’s sister through the incidents underlying the stalking offense,
amply supports confinement for a term of four years and a dishonorable dis-
charge. We find the approved sentence is not inappropriately severe as a mat-
ter of law.
L. Timeliness of Post-Trial Processing and Appellate Review
Appellant claims he is entitled to relief for excessive post-trial delay where
the convening authority did not take action until 268 days after Appellant’s
court-martial adjourned. We examine the circumstances of the delay and Ap-
pellant’s assertion of his right to timely post-trial processing and claim of prej-
udice in our analysis. In addition, although not raised by Appellant, we con-
sider the issue of timely appellate review.
1. Law
Whether an appellant has been deprived of his due process right to speedy
post-trial and appellate review, and whether constitutional error is harmless
beyond a reasonable doubt, are questions of law we review de novo. United
States v. Arriaga, 70 M.J. 51, 56 (C.A.A.F. 2011) (citing United States v.
Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006)).
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When the convening authority does not take action within 120 days of the
completion of trial, the delay is presumptively unreasonable. Moreno, 63 M.J.
at 142. A presumption of unreasonable delay also arises when appellate review
is not completed and a decision is not rendered within 18 months of the case
being docketed. Id. If there is a Moreno-based presumption of unreasonable
delay or an otherwise facially unreasonable delay, we examine the claim under
the four factors set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972): “(1) the
length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion
of the right to timely review and appeal; and (4) prejudice.” Moreno, 63 M.J. at
135 (citations omitted). Moreno identified three types of prejudice arising from
post-trial processing delay: (1) oppressive incarceration; (2) anxiety and con-
cern; and (3) impairment of ability to present a defense at a rehearing. Id. at
138–39 (citations omitted).
“We analyze each factor and make a determination as to whether that fac-
tor favors the Government or [Appellant].” Id. at 136 (citation omitted). Then,
we balance our analysis of the factors to determine whether a due process vio-
lation occurred. Id. (citing Barker, 407 U.S. at 533 (“Courts must still engage
in a difficult and sensitive balancing process.”)). “No single factor is required
for finding a due process violation and the absence of a given factor will not
prevent such a finding.” Id. (citation omitted). However, where an appellant
has not shown prejudice from the delay, there is no due process violation unless
the delay is so egregious as to “adversely affect the public’s perception of the
fairness and integrity of the military justice system.” United States v. Toohey,
63 M.J. 353, 362 (C.A.A.F. 2006).
Recognizing our authority under Article 66(c), UCMJ, we also consider if
relief for excessive post-trial delay is appropriate even in the absence of a due
process violation. See United States v. Tardif, 57 M.J. 219, 221, 225 (C.A.A.F.
2002).
2. Timeliness of Post-Trial Processing
We determine there was no violation of Appellant’s right to due process and
a speedy post-trial review. Applying the first two Barker factors, we find the
length of the delay and the assertion of the right to timely post-trial processing
both count in Appellant’s favor. In United States v. Arriaga, the CAAF found a
243 day delay was “not de minimis,” even if not as egregious as other cases. 70
M.J. 51, 56 (C.A.A.F. 2011). And, Appellant twice asserted his right to speedy
post-trial processing, first on 16 May 2018, and again on 3 June 2018. The
Government concedes these Barker factors weigh in Appellant’s favor, and we
agree.
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United States v. Lull, No. ACM 39555
The reasons for the delay count in Appellant’s favor. Between adjournment
on 5 January 2018, and action on 30 September 2018, the Government com-
piled a lengthy, eight-volume record of trial that included a 756-page tran-
script. There were several issues with degradation of audio that delayed tran-
scription. The legal office reached out to the trial judiciary on several occasions
between 30 January 2018 and 20 April 2018 to attempt to expedite transcrip-
tion. On 11 July 2018, the legal office received the authenticated transcript.
Post-trial processing was slowed somewhat by a 30-day delay as the legal office
tried to obtain input from NB on clemency, and a ten-day extension Appellant
was given to submit his clemency matters. However, the bulk of the delay—
202 days—came from transcribing and assembling the record of trial.
As to the fourth and final Barker factor, considerations of prejudice count
against Appellant. Appellant claims prejudice from the oppressive incarcera-
tion and anxiety that followed the Government’s decision to curtail his active
duty status and not place him on orders for the duration of his post-trial con-
finement. This action terminated Appellant’s pay and allowances and TRI-
CARE medical benefits for himself and his dependent daughter. 57 Appellant
claims particularized anxiety and concern for his daughter was due to his ina-
bility to provide financial support and medical benefits. Appellant also claims
he lost his civilian job because he was placed in an AWOL status instead of
leave-without-pay. However, none of these consequences would have been less
likely to have occurred if the convening authority took action within 120 days
of the completion of trial. We find Appellant’s claims are without merit because
Appellant has not shown prejudice that can be attributed to the Government’s
delay in the post-trial processing of his case.
The CAAF has held that “where there is no finding of Barker prejudice, we
will find a due process violation only when, in balancing the other three factors,
the delay is so egregious that tolerating it would adversely affect the public’s
perception of the fairness and integrity of the military justice system.” Toohey,
63 M.J. at 362. In this case, the prejudice analysis is determinative. Because
Appellant fails to demonstrate prejudice, and we find the remaining factors are
not so egregious—despite the 268 days between the announcement of sentence
and initial action of the convening authority—as to impugn the fairness and
integrity of the military justice system, we find no violation of Appellant's
rights under Moreno. Recognizing our authority under Article 66(c), UCMJ, we
have also considered if relief for excessive post-trial delay is appropriate in this
case even in the absence of a due process violation. See Tardif, 57 M.J. at 225.
After considering the factors enumerated in United States v. Gay, 74 M.J. 736,
57Appellant also claims the conditions of his incarceration were oppressive as outlined
in his submission pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
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744 (A.F. Ct. Crim. App. 2015), aff'd, 75 M.J. 264 (C.A.A.F. 2016), we conclude
that such an exercise of our authority is not appropriate in this case.
3. Timeliness of Appellate Review
Appellant’s case was originally docketed with the court on 15 October 2018.
The overall delay in failing to render this decision by 15 April 2020 is facially
unreasonable. See Moreno, 63 M.J. at 142. However, we determine no violation
of Appellant’s right to due process and a speedy appellate review. Analyzing
the Barker factors, we find the delay is not excessively long. The reasons for
the delay include the time required for Appellant to file his brief on 10 Septem-
ber 2019, and the Government to file its answer on 6 December 2019. Appellant
filed a reply on 13 January 2020. We granted ten enlargements of time—nine
for Appellant and one for the Government—for appellate counsel to prepare
their brief in support of the assignments of error, the answer, and the reply. In
addition, Appellant raises an unusually large number of issues to which we
applied our careful attention, resulting in an unusually long opinion explaining
the court’s decision.
The court affirms the findings and sentence in this case after examining
numerous assignments of error that Appellant claims occurred at trial, the
sentencing hearing, and during post-trial processing. However, Appellant has
not asserted his right to speedy appellate review or pointed to any particular
prejudice resulting from the presumptively unreasonable delay, and we find
none. Finding no Barker prejudice, we also find the delay is not so egregious
that it adversely affects the public’s perception of the fairness and integrity of
the military justice system. See Toohey, 63 at 362. As a result, there is no due
process violation. See id. In addition, we determine that Appellant is not due
relief even in the absence of a due process violation. See Tardif, 57 M.J. at 223–
24. Applying the factors articulated in United States v. Gay, 74 M.J. 736, 744
(A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016), we find the delay
in appellate review justified and relief for Appellant unwarranted.
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).
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Accordingly, the findings and the sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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