United States v. Gere

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39697
________________________
UNITED STATES
Appellee
v.
Soren G. GERE
Technical Sergeant (E-6), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 24 November 2020
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Military Judge: L. Martin Powell.
Approved sentence: Dishonorable discharge, confinement for 10 years,
and reduction to E-1. Sentence adjudged 23 January 2019 by GCM con-
vened at Wright-Patterson Air Force Base, Ohio.
For Appellant: Major M. Dedra Campbell, USAF; Vik Monder, Esquire.
For Appellee: Lieutenant Colonel Brian C. Mason, USAF; Major Jessica
L. Delaney, USAF; Mary Ellen Payne, Esquire.
Before MINK, KEY, and ANNEXSTAD, Appellate Military Judges.
Judge ANNEXSTAD delivered the opinion of the court, in which Senior
Judge MINK 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This is an unpublished opinion and, as such, does not serve as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.
________________________
ANNEXSTAD, Judge:
Contrary to his pleas, Appellant was convicted at a general court-martial
composed of a military judge sitting alone of one specification of attempted sex-
United States v. Gere, No. ACM 39697
ual assault of a child, one specification of sexual abuse of a child, and one spec-
ification of sexual assault of a child, in violation of Articles 80 and 120b, Uni-
form Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 920b. 1,2 The military
judge sentenced Appellant to a dishonorable discharge, confinement for ten
years, and reduction to the grade of E-1. The convening authority approved the
sentence as adjudged.
Appellant raises five assignments of error on appeal: (1) whether the mili-
tary judge erred by denying a defense motion to compel production of a cellular
phone belonging to the victim, SN; (2) whether the evidence is legally and fac-
tually sufficient to support the convictions; (3) whether the military judge erred
by admitting expert testimony at sentencing regarding the long-term effects of
child sexual abuse in general; (4) whether Appellant is entitled to new post-
trial processing including a new record of trial “where 11 different legal office
personnel made major changes to the transcript” and the trial counsel com-
pleted both the certification of the transcript and the authentication of the rec-
ord; and (5) whether Appellant is entitled to new post-trial processing because
the staff judge advocate’s recommendation (SJAR) and attachments to the
SJAR contained multiple errors and failed to properly advise the convening
authority. After reviewing the record and considering R.C.M. 1104(a)(2), we
find Appellant’s fourth assertion does not require further discussion or warrant
relief. See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987). Finding no
error materially prejudicial to a substantial right of Appellant, we affirm the
findings and sentence.
I. BACKGROUND
In September 2016, Appellant was a recruiter assigned to the 338th Re-
cruiting Squadron at Wright-Patterson Air Force Base (AFB), Ohio. At that
time, SN was a 13-year-old girl who lived with her mother, JR, near Wright-
Patterson AFB. SN’s mother and father were separated, and her father lived
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 are to the Manual for
Courts-Martial, United States (2016 ed.).
2 The specification of attempted sexual assault of a child was a lesser included offense
of Specification 3, that alleged sexual assault of a child of which the military judge
found Appellant not guilty. The military judge also conditionally dismissed Specifica-
tion 1, sexual abuse, on the condition that the Specification 2, sexual assault of a child,
and Specification 3, attempted sexual assault of child, were affirmed on appeal. The
military judge also merged Specifications 2 and 3 at sentencing, resulting in a maxi-
mum term of confinement of 30 years.
2
United States v. Gere, No. ACM 39697
in California. Appellant had been dating JR for about a year and SN would
normally interact with Appellant multiple times per week.
On the weekend of 10 September 2016, SN and her mother went to Appel-
lant’s house near Beavercreek, Ohio. At his house, Appellant provided SN with
multiple alcoholic drinks. Over the course of the evening, SN consumed both
beer and mixed drinks. SN testified that she does not recall exactly how many
alcoholic drinks she consumed that evening, but knew it was more than two,
and she felt tipsy and drunk. Throughout the night, SN took videos of herself
on her cellular phone in an intoxicated state, 38 of which were admitted into
evidence at trial. At some point, SN recalled that Appellant walked her over to
his bed and gave her a small pill. Appellant told SN the pill would help her
sleep. SN understood that Appellant and her mother were going out to a local
bar. After Appellant and JR left, SN fell asleep in Appellant’s bed.
The next thing SN recalled was waking up when Appellant and her mother
returned from the bar. SN testified that she “was drunk and . . . really couldn’t
get up or really move.” She stated that Appellant laid down next to her in the
bed and that her mother was laying on the other side of Appellant, not imme-
diately next to her. SN testified that Appellant placed his hand up her shirt
and under her binder 3 before touching “both” of her breasts. She further testi-
fied that Appellant pulled her underwear down and “put his fingers inside of
[her].” As this was happening, Appellant told SN “not to tell anyone.” SN tes-
tified that she tried to mumble “stop” under her breath, but the words would
not come out because she was in “shock.” SN testified that while Appellant
touched her he was kissing her neck and mouth. SN testified that Appellant
smelled like alcohol and cigarettes and that she felt “repulsed” while this was
happening. SN testified that while laying on her side, with her back to Appel-
lant, she felt Appellant’s erect penis against her buttocks. SN then stated that
she felt his penis around her vagina and that while this was happening Appel-
lant was “breathing” on her and “thrusting” and “jerking” his body. SN testified
that she felt his penis touching her vagina, but it did not go inside her vagina.
SN testified that she tried to get up but that Appellant held her down by plac-
ing his hand on her stomach region.
SN was finally able to get away and went to the kitchen near the living
room. Appellant followed her to the kitchen and slightly shoved her, while ask-
ing her what was wrong. SN did not respond, and went to the living room to
3At trial, SN testified that a “binder” is a piece of clothing used by individuals to “bind”
their breasts down. SN stated that her binder was made of cotton and had multiple
hooks on the back to keep it closed.
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United States v. Gere, No. ACM 39697
sleep on the couch, while Appellant returned to his bedroom. SN testified that
she could not sleep and spent most of the night crying.
The following morning, Appellant drove SN and her mother home. SN tes-
tified that she did not immediately tell her mother what happened because she
thought her mother “wouldn’t believe [her].” Later that day, SN told her friend,
EH, that her “mom’s boyfriend raped” her. That same night, SN had a conver-
sation with another friend, JE, and was in tears as she told JE that she had
been drinking with her mom and her boyfriend, and that her mom’s boyfriend
came in the room, got on top of her, and raped her. Both of her friends encour-
aged her to report the incident, but SN refused because she was worried her
mother would get in trouble for allowing her to drink alcohol.
The following Monday at school, SN testified that she told several other
friends about the assault. All of SN’s friends encouraged her to report the as-
sault; however, SN chose not to. After school, one of SN’s friends, JE, told her
mother, who immediately reported the assault to Child Protective Services.
Subsequently, a social worker and civilian law enforcement officer were dis-
patched to SN’s house. JR initially met with police and asked for a lawyer, and
also asked to speak to SN in private. During their private conversation, JR told
SN not to tell the police about the alcohol.
After speaking with police about what had happened, SN agreed to go to
the hospital, where she underwent a sexual assault forensic examination
(SAFE). As part of the examination, deoxyribonucleic acid (DNA), fingernail
scrapings, and a head hair sample were collected, and buccal swabs were taken
from SN. While at the hospital, SN also provided a urine sample.
At trial, the Government called TA, a forensic scientist from the Ohio Bu-
reau of Criminal Investigation. The court recognized TA as an expert in the
field of forensic DNA analysis. TA testified that he examined the SAFE kit
from SN, which included oral and vaginal samples, fingernail scrapings, a head
hair sample, and skin swabs from the pubic area. TA further testified that “a
low amount of male DNA” was found on the pubic area samples taken from
SN, but due to the small amount of DNA present, a DNA profile could not be
produced.
During trial, the Government also called HA, a toxicologist from the Coro-
ner’s Office Crime Lab in Troy, Ohio. The court recognized HA as an expert in
the field of toxicology. HA testified that SN’s urine sample showed traces of
ibuprofen and diphenhydramine and that diphenhydramine is the active in-
gredient found in over-the-counter sleep aid medication. HA testified that sub-
sequent confirmation tests did not detect diphenhydramine above the cut-off
level of six nanograms per milliliter in SN’s urine sample.
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United States v. Gere, No. ACM 39697
II. DISCUSSION
A. Production of SN’s Cellular Phone
Appellant alleges that the military judge abused his discretion by not com-
pelling production of SN’s cellular phone. Specifically, Appellant alleges the
military judge’s findings of fact were not supported by the evidence and that
incorrect legal principles were applied. We disagree.
1. Additional Background
On 15 January 2019, Appellant’s trial defense counsel made an oral motion
to compel the production of SN’s cellular phone for forensic analysis. Appellant
contends that the cellular phone, which was in SN’s possession, contained evi-
dence that SN either recanted the allegations or admitted to lying about the
allegations in written communications with JR. The Government opposed the
motion. The court received evidence and heard argument on the motion on 15
and 16 January 2019. Specifically, the court received live testimony from SN,
JR, and a Mr. JR, a senior digital forensic examiner.
SN testified that from November 2016 until the date of the court-martial,
she lived with her father in California. During that time she communicated
with her mother, in Ohio, through text messaging on Snapchat and Facebook.
At some point, SN “blocked” her mother on Snapchat. This had the effect of
temporarily making conversations between the two disappear from view on the
messaging application. On 15 January 2019, SN was asked by trial counsel to
“unblock” her mother. This had the effect of making the Snapchat conversa-
tions visible again. SN then testified that she went through the conversations
she had with her mother and began taking screenshots of them. SN testified
that while she was taking screenshots of the messages she accidently deleted
one from 6 September 2017. SN stated that the deleted message was one she
sent to JR that stated something along the lines of “I f’ d up.” The message
immediately preceding the deleted message was a message from SN which
said, “Hi mom I’m on my iPad my dad took away my phone.” The message
immediately following the deleted message is a message from JR to SN that
asks “[What] did you do? . . . I promise I won’t get mad you can tell me.” SN
testified that when she sent the deleted message she was talking to JR about
getting in trouble with her father and was not referring to the allegations or
the court-martial.
SN further testified that she had conversations with JR about the court-
martial via Snapchat. SN testified that JR would encourage her “not to go
through” with the court-martial. SN testified that she knew there were mes-
sages missing from the conversations with JR, but she did not remember what
they said. However, SN testified that she never told JR that she made up the
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United States v. Gere, No. ACM 39697
allegations. She further testified that on multiple occasions JR encouraged her
to change her statement and not go through with the court-martial.
JR testified that shortly after 11 September 2016 SN was removed from
her custody and sent to live with her grandmother. JR testified that SN lived
with her grandmother until November 2016, at which time she moved to Cali-
fornia with her father. JR testified that she would communicate with SN via
Snapchat, Facebook, and telephone calls. JR stated that on 15 January 2019,
she was asked by trial defense counsel to take screenshots of all of the saved
Snapchat messages between herself and SN and that while she was taking
screenshots she received a notice indicating that SN had just “deleted” a mes-
sage from 6 January 2017. JR stated that she viewed the message before it was
deleted and it said “Mom, I’m sorry. I f**ked up.” JR agreed with SN that some
messages were missing from their Snapchat conversations, but she didn’t know
the content of any of the other messages that might have been missing.
Contrary to SN’s testimony that she never told JR she had made up the
allegations, JR testified that SN recanted the allegations or admitted to lying
about the allegations against Appellant on three occasions. One of those occa-
sions occurred on or about 6 September 2017 as part of the conversation in-
volving the deleted message. The second occasion occurred on or about 27 Sep-
tember 2018, where JR stated that SN verbally told her during a telephone
conversation that she was lying about the allegation and did not want to go
through with the prosecution of the case, and, in response, JR sent a Snapchat
message with the name and telephone number for Appellant’s trial defense
counsel. JR testified that the third occasion occurred on the telephone, not
through any text message application. Finally, in response to questions from
the military judge, JR testified that all of the conversations in which SN ad-
mitted to her that she made up the allegations occurred telephonically, voice
to voice, and that none were sent in message format over Snapchat.
Mr. JR, an expert in computer forensics, also testified on the motion. Mr.
JR testified that Snapchat is an application that allows individuals to send text
messages as well as images and videos. He stated Snapchat has a default set-
ting which deletes multimedia or text messages; however, he indicated the de-
fault setting may be modified by the user. Mr. JR also testified that messages
may be saved within the application by “screenshotting” them, or saved
through third-party applications, and that deleted Snapchat messages can be
retrieved in a manner similar to deleted text messages, through extraction of
the cellular phone. Extraction of the cellular phone involves accessing the da-
tabase that houses the text messages as well as any attachment folders, copy-
ing all the data, then analyzing that data for evidence related to the Snapchat
messages. Mr. JR stated that the likelihood of recovering deleted messages is
based on several factors: the amount of time that has passed since the deletion
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United States v. Gere, No. ACM 39697
occurred, how often the phone was used during this period, and whether or not
the user saved the chat at the time it was sent. Finally, Mr. JR testified that,
considering the memory limitations of mobile devices, there was not a good
chance of recovering deleted Snapchat messages more than one to two months
old from the device of an active user like SN, but the likelihood of recovery
would increase for newly deleted Snapchat messages.
On 16 January 2019, the military judge denied the motion to compel the
production of SN’s cellular phone for examination. The military judge found
that SN’s cellular phone was not in the possession of the Government, and
therefore, discovery under Rule for Courts-Martial (R.C.M.) 701 was not appli-
cable. Turning to production under R.C.M. 703, the military judge found that
the defense failed to establish “by a preponderance of the evidence that the
production of SN’s cellular phone for analysis would lead to any relevant or
necessary evidence beyond evidence already available to the defense in the
form of saved messages and the testimony of [JR] and SN.”
In support of his finding, the military judge discussed the testimony of JR,
who specifically stated that all conversations where SN had recanted the alle-
gations against Appellant had occurred on the telephone and not via text mes-
sages. The military judge stated in his ruling that taking JR’s testimony at
face value, she provided “no significant evidence to suggest that there would
likely be any ‘smoking gun’ type recantation messages contained on SN’s cel-
lular phone.”
Regarding the ability to obtain deleted messages through extraction of the
cellular phone, the military judge found that recovery of automatically deleted
messages was complicated by the passage of time and the amount of use by the
user of the application. He further found SN to be an active user, having used
the application over 50,000 times. He concluded there was not a good chance
of recovering a deleted Snapchat message that was sent by an active user in
September 2018 and that the further back in time those messages were sent
the less likely it was that those messages could be recovered through extrac-
tion. Additionally, the military judge found that the metadata related to phone
calls and text messages might be discovered by extraction of the cellular phone,
but such data would only reveal information such as the time and date of the
messages, and not the actual substance of the messages.
2. Law
We review a military judge’s ruling on requests for discovery or production
of evidence for an abuse of discretion. United States v. Jones, 69 M.J. 294, 298
(C.A.A.F. 2011) (citing United States v. Morris, 52 M.J. 193, 198 (C.A.A.F.
2008)). An abuse of discretion occurs when the military judge’s findings of fact
are clearly erroneous or when his ruling is influenced by an erroneous view of
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United States v. Gere, No. ACM 39697
the law. United States v. Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008). An abuse
of discretion involves much more than a difference of opinion. See United States
v. Travers, 25 M.J. 61, 62 (C.M.A. 1987) (citation omitted). In order to be re-
versed on appeal, the challenged action must be “arbitrary, fanciful, clearly
unreasonable,” or “clearly erroneous.” See id. at 62–63 (citation omitted).
The Due Process Clause of the Fifth Amendment 4 guarantees criminal de-
fendants be afforded a meaningful opportunity to present a complete defense.
United States v. Webb, 66 M.J. 89, 92 (C.A.A.F. 2008) (citations omitted). Each
party to a court-martial must have an equal opportunity to inspect evidence
and to obtain witnesses and other evidence. United States v. Stellato, 74 M.J.
473, 483 (C.A.A.F. 2015) (citing R.C.M. 701(e); Article 46, UCMJ, 10 U.S.C.
§ 846).
Each party is entitled to the production of evidence which is relevant and
necessary. R.C.M. 703(f)(1); United States v. Rodriguez, 60 M.J. 239, 246
(C.A.A.F. 2004) (citation omitted). Evidence is relevant if “it has any tendency
to make a fact more or less probable than it would be without the evidence”
and “is of consequence in determining the action.” Mil. R. Evid. 401. “Relevant
evidence is ‘necessary when it is not cumulative and when it would contribute
to a party’s presentation of the case in some positive way on at matter in is-
sue.’” Rodriguez, 60 M.J. at 246 (quoting R.C.M. 703(f)(1)).
As a threshold matter, in order to be entitled to production of evidence, the
defense must first demonstrate that the requested material exists. Id. The de-
fense request for production of evidence must list the items of evidence to be
produced and include a “description of each item sufficient to show its rele-
vance.” R.C.M. 703(f)(3). The burden of proof for factual issues related to this
motion is a preponderance of the evidence. R.C.M. 905(c)(1). The burden of per-
suasion is on the moving party. R.C.M. 905(c)(2); R.C.M. 906(b)(7).
3. Analysis
Appellant alleges that the military judge abused his discretion in two ways.
First, Appellant asserts the military judge made an erroneous finding of fact
concerning the likelihood of recovering deleted messages from SN’s phone; and
second, that the military judge applied incorrect legal principles by requiring
the evidence to be a “smoking gun” of recantation. We disagree and find the
military judge’s findings of fact were supported by the evidence and that cor-
rect legal principles were applied.
4 U.S. CONST. amend. V.
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United States v. Gere, No. ACM 39697
Appellant specifically sought extraction of SN’s cell phone to recover de-
leted Snapchat conversations where SN had purportedly recanted her allega-
tions against Appellant. Appellant contends that the military judge was clearly
erroneous in his findings of fact regarding the likelihood of recovering deleted
messages from SN’s cellular phone. We agree with the military judge’s conclu-
sion that Appellant’s motion to compel the cellular phone fails, because the
Defense never established the sought-after Snapchat messages existed on the
phone, a prerequisite for the production request. In his written ruling, dated
16 January 2019, the military judge found that Appellant had failed to estab-
lish by a preponderance of the evidence that any relevant evidence existed in
the deleted text messages. The military judge’s findings are supported by the
testimony of SN, who denied recanting the allegations and unequivocally
stated that she never sent Snapchat messages to that effect. Although JR dis-
puted SN’s claims about never recanting, JR agreed that SN never recanted
her allegations via text message and testified that SN’s recantations occurred
exclusively during “voice to voice” telephone calls. Trial defense counsel offered
no specific information that any other relevant evidence not already in the pos-
session of the Defense was on the phone. We agree with the military judge that
Appellant failed to establish that forensic analysis of the cellular phone in
question would have revealed additional relevant or helpful evidence related
to the deleted conversation beyond the evidence that was already available to
the Defense.
Appellant next contends that the military judge erred when he required the
evidence to be a “smoking gun,” which is not the standard required by law.
Appellant’s contention is without merit. While the military judge did refer to a
“smoking gun” in his ruling, it is evident from the entirety of the ruling that
this was a colloquialism, and he required nothing more than a showing that
the evidence was relevant and necessary. Nowhere in the ruling did the mili-
tary judge discuss the legal standard as “smoking gun.” In fact, in his conclu-
sion the military judge demonstrated that he applied the correct legal princi-
ples when he wrote that Appellant failed to establish “by a preponderance of
the evidence that the production of SN’s cellular phone for analysis would lead
to any relevant or necessary evidence . . . .” We conclude the military judge
applied the correct legal principles and did not abuse his discretion in denying
the defense motion to compel the production of SN’s cellular phone for forensic
extraction.
B. Legal and Factual Sufficiency
Appellant contends that his convictions are both legally and factually in-
sufficient. Appellant’s sole argument focuses on the claim that SN was not a
sufficiently credible witness. Appellant presents three bases under which he
argues we should discount SN’s testimony: first, that SN’s testimony regarding
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United States v. Gere, No. ACM 39697
the accidental deletion of the Snapchat message was evidence that she lied and
made her testimony unreliable; second, that her multiple inconsistent state-
ments demonstrate a lack of memory and cast doubt on her testimony; and
third, that SN had a motive to lie which creates reasonable doubt. We disagree.
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) (emphasis and citation 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).
As a result, “[t]he standard for legal sufficiency involves a very low threshold
to sustain a conviction.” United States v. King, 78 M.J. 218, 221 (C.A.A.F. 2019)
(alteration in original) (citation omitted), cert. denied, __ U.S. __, 139 S. Ct.
1641 (2019). The test for legal sufficiency “gives full play to the responsibility
of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evi-
dence, and to draw reasonable inference from basic facts to ultimate facts.”
Unites States v. Oliver, 70 M.J. 64, 68 (C.A.A.F. 2011) (citation 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,” this court is “convinced of the [appellant]’s guilt beyond a rea-
sonable doubt.” United States v. Reed, 54 M.J. 37, 41 (C.A.A.F. 2000) (quoting
United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987)). “In conducting this
unique appellate role, we take ‘a fresh, impartial look at the evidence,’ applying
‘neither a presumption of innocence nor a presumption of guilt’ to ‘make [our]
own independent determination as to whether the evidence constitutes proof
of each required element beyond a reasonable doubt.’” Wheeler, 76 M.J. at 568
(alteration in original) (quoting Washington, 57 M.J. at 399). The term “rea-
sonable doubt” does not mean evidence free from conflict. Lips, 22 M.J. at
10
 United States v. Gere, No. ACM 39697
684 (citation omitted). This court’s review of the factual sufficiency of evi-
dence for findings is limited to the evidence admitted at trial. Article 66(c),
UCMJ; United States v. Beatty, 64 M.J. 456, 458 (C.A.A.F. 2007) (citations
omitted).
Appellant was convicted of sexual abuse of a child in violation of Article
120b(c), UCMJ, 10 U.S.C. § 920b(c), which required the Government to prove
two elements beyond a reasonable doubt: (1) Appellant committed a sexual act
upon SN by touching her breast; and (2) Appellant did so with the intent to
gratify his sexual desire. See Manual for Courts-Martial, United States (2016
ed.) (MCM), pt. IV, ¶ 45b.b.(4)(a). For this specification, the Government had
to additionally prove SN was under the age of 16 years. See MCM, pt. IV,
¶ 45b.a.(h)(4).
Appellant was also convicted of sexual assault of a child in violation of Ar-
ticle 120b(b), UCMJ, 10 U.S.C. § 920b(b), which required the Government to
prove three elements beyond a reasonable doubt: (1) Appellant committed a
sexual act upon SN by causing penetration, however slight, of her vulva with
his fingers; (2) at the time of the sexual act SN had attained the age of 12 years,
but not 16 years; and (3) Appellant did so with the intent to gratify his sexual
desire. See MCM, pt. IV, ¶ 45b.b.(3)(b).
Appellant was also convicted of attempted sexual assault of a child in vio-
lation of Article 80, UCMJ, 10 U.S.C. § 880, which required the Government to
prove four elements beyond a reasonable doubt: (1) Appellant did a certain
overt act; (2) the act was done with the specific intent to commit sexual assault
of a child by causing penetration, however slight, of SN’s vulva with his penis
while she had attained the age of 12 years but was under the age of 16 years;
(3) the act amounted to more than mere preparation; and (4) the act apparently
tended to effect commission of sexual assault of a child. See MCM, pt. IV,
¶ 4.f.(b).
2. Analysis
Appellant’s first contention is that SN lied to the military judge when she
testified that she “accidently” deleted the “f**ked up” Snapchat message while
trying to screenshot the messages she exchanged with JR. Specifically, Appel-
lant alleges that the message was deleted at some point on 15 January 2019
before SN started to take screenshots and that SN was untruthful concerning
how or in what order the message was deleted. Appellant contends that this
“lie” demonstrates that SN intentionally tried to erase evidence showing that
she recanted her allegations to JR, thus making her testimony unreliable.
We find Appellant’s argument unpersuasive. While it may be unclear as to
the exact time the message was deleted on 15 January 2019, there is no reason
to believe that the deletion was anything other than an accident. There is also
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United States v. Gere, No. ACM 39697
no reason to believe that SN deleted the message in an effort to mislead or hide
evidence. Both SN and JR agreed, while testifying in court, to the content of
the deleted message, so there would be no obvious reason for SN to intention-
ally delete the message if she was going to freely admit what it said. 5 This
directly cuts against Appellant’s argument.
Moreover, there is no evidence that any text messages in which SN re-
canted the allegations ever existed. To the contrary, JR testified that all state-
ments where SN purportedly recanted her allegations against Appellant were
made over the telephone and not by text message. Finally, SN testified that
the deleted message referred to an incident where she got in trouble with her
father, which is consistent with the text messages both immediately before and
after the deleted text. Even if SN was untruthful about how the deletion oc-
curred, it is a minor inconsistency, in light of SN’s consistent statements and
corroborating evidence, we are not persuaded that SN’s testimony was unreli-
able.
Appellant next highlights multiple inconsistent statements made by SN to
her friends, family, and others involved. Appellant argues that these inconsist-
encies demonstrate a lack of memory and cast doubt on her testimony. While
we find it unnecessary to specifically cover every possible inconsistent state-
ment in detail, we note that the majority of these statements were born from
statements made to other 13-year-olds, two years before they testified at trial.
Appellant argues that SN generally described a violent rape to her friends, in
which Appellant held her down, and was on top of her, and that these prior
descriptions were inconsistent with her testimony at trial. Additionally, Appel-
lant contends SN gave different statements regarding her use of alcohol to var-
ious witnesses including law enforcement, Child Protective Services, and the
sexual assault nurse examiner.
While witness testimony at trial contained some inconsistencies, this is to
be expected as a result of the passage of time between the incident in Septem-
ber 2016 and the trial in January 2019. It is also expected considering the age
of many of the witnesses. We also note that there are simple misunderstand-
ings that result in inconsistencies among many witnesses as a result of the
witnesses memory and perceptions of the events. These inconsistencies do not
necessarily make witness testimony less credible. We have considered the dis-
crepancies noted by Appellant, along with the motives advanced by Appellant.
Testimony “need not be completely consistent to still be sufficiently reliable to
5 We also note that trial defense counsel, who also viewed the deleted message before
it was deleted, proffered to the court during the motion hearing that the content of the
message was the same as described by SN and JR.
12
United States v. Gere, No. ACM 39697
sustain a conviction, and we do not confine our analysis to merely the testi-
mony of a single witness in performing our factual sufficiency review under
Article 66, UCMJ.” United States v. McFadden, No. ACM 38597, 2015 CCA
LEXIS520, at *11 (A.F. Ct. Crim. App. 18 Nov. 2015) (unpub. op.); see also
United States v. McElhaney, 50 M.J. 819, 832 (A.F. Ct. Crim. App. 1999)(con-
cluding evidence factually sufficient, in part because appellant’s wife corrobo-
rated his romantic relationship with the victim notwithstanding the appel-
lant’s claim that the victim’s testimony was implausible and inconsistent). Ad-
ditionally, witness testimony that is inconsistent does not necessarily suggest
that SN herself was inconsistent. In fact, the documentary and video evidence
that SN took of herself earlier in the night of the assault generally showed that
SN’s testimony was consistent with her initial reports.
Finally, Appellant contends that SN had a motive to lie and made up the
allegations so that she could permanently move in with her father. Appellant
contends that SN and her mother argued frequently and that SN felt her father
was generally more supportive. There is no reason to believe SN had a motive
to lie. To the contrary, the evidence presented at trial demonstrates that SN
and JR continued to communicate, from the incident until trial and that they
had frequent conversations on the phone and via text message. Additionally,
the evidence showed that SN did not inform authorities about her use of alcohol
in order to protect her mother, which cuts directly against this contention.
We find that SN’s testimony was sufficient to establish proof of each ele-
ment of each offense beyond a reasonable doubt. SN testified that Appellant
digitally penetrated her vagina with his fingers, and that his hand touched her
breasts under her binder. She further testified that Appellant’s penis was hard
against her back. Unlike her unequivocal testimony about Appellant touching
her breasts and digitally penetrating her, SN was somewhat unclear about
whether actual penetration of her vagina by his penis occurred. However, she
did testify that she felt it touch her vagina, which supports the military judge’s
verdict in which he found Appellant not guilty of the ultimate offense but guilty
of the lesser included offense of attempt.
SN’s testimony was corroborated by her immediate outcry statements to
her friends and her consistent recitation of the events to Child Protective Ser-
vices personnel, the sexual assault nurse examiner, and law enforcement in-
terviewers. Furthermore, while not conclusive, the results of the initial toxicol-
ogy test supported her statements that she was given a small pill, on the night
of the assault. Similarly, the DNA report demonstrated some male DNA pre-
sent on her pubic area, which a rational factfinder could conclude corroborates
her statements. The videos of SN on the night of the assault also corroborated
her statement that Appellant had given her alcohol and that she was intoxi-
cated.
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United States v. Gere, No. ACM 39697
Finally, in assessing SN’s credibility, we note the testimony regarding SN’s
consistent demeanor throughout these multiple reports. SN was described by
her friend EH as “withdrawn.” Another friend, JE, stated that SN was “on the
edge of tears.” SN’s friends at school described her as being “sad.” Law enforce-
ment and the sexual assault nurse examiner noted that she had been crying
and became tearful while discussing the assault. Such consistency supports
SN’s credibility and undermines the suggestion she fabricated her allegation
of the assault.
In assessing legal sufficiency, we consider the evidence produced at trial in
the light most favorable to the Government. In doing so, we conclude a rational
factfinder could have found beyond a reasonable doubt all the elements to sup-
port Appellant’s convictions for sexual assault of a child, sexual abuse of a
child, and attempted sexual assault of a child. Furthermore, in assessing fac-
tual sufficiency, after weighing all the evidence in the record of trial and having
made allowances for not having personally observed the witnesses, we are con-
vinced of Appellant’s guilt beyond a reasonable doubt. Therefore, we find Ap-
pellant’s convictions both legally and factually sufficient.
C. Expert Testimony Regarding the Effects of Child Sexual Abuse
1. Additional Background
In sentencing, the Government called Dr. NS, who had extensive experi-
ence diagnosing and treating child victims of sexual assault. The military judge
recognized Dr. NS as an expert in the field of forensic psychology with a spe-
cialty in child sexual abuse. Appellant did not object to the military judge rec-
ognizing Dr. NS as an expert in that capacity and did not object at any point
during her testimony.
Dr. NS testified in general regarding the long- and short-term impacts of
sexual abuse on children. Dr. NS further testified that there is no way to pre-
dict how a particular victim is going to move forward after being sexually
abused. Appellant now contends that Dr. NS’s testimony was not directly re-
lated to Appellant’s offenses, and that by failing to connect common long-term
effects of child sexual abuse to the present or prospective impacts on SN, her
testimony was irrelevant. We disagree.
2. Law
We review a military judge’s admission of evidence for an abuse of discre-
tion. United States v. Houser, 36 M.J. 392, 397 (C.M.A. 1993). Where there is
no objection at trial, the admission of expert testimony is reviewed for plain
error. United States v. Green, 55 M.J. 76, 81 (C.A.A.F. 2001) (citations omitted).
In reviewing for plain error, the burden is on Appellant to show: (1) there was
14
United States v. Gere, No. ACM 39697
an error; (2) the error was plain and obvious; and (3) the error materially prej-
udiced a substantial right. United States v. Girouard, 70 M.J. 5, 11 (C.A.A.F.
2011) (footnote and citation omitted).
Military courts-martial have also regularly permitted qualified experts to
provide testimony that child victims of sexual abuse are “at a higher risk” of
suffering long-term effects of the abuse. United States v. Hammer, 60 M.J. 810,
829 (A.F. Ct. Crim. App. 2004) (citations omitted); see also United States v.
Stark, 30 M.J. 328, 329–30 (C.M.A. 1990); United States v. Hammond, 17 M.J.
218, 219 (C.M.A. 1984); United States v. Marchand, 56 M.J. 630, 633 (C.G. Ct.
Crim. App. 2001).
R.C.M. 1001(b)(4) permits evidence in aggravation “directly relating to or
resulting from the offenses of which the accused has been found guilty.” Expert
testimony is permissible if the expert’s “specialized knowledge will assist the
trier of fact to understand the evidence or determine a fact in issue.” Mil. R.
Evid. 702.
3. Analysis
It is well-settled law that this type of evidence is permissible during sen-
tencing. Dr. NS’s testimony was directly related to the effects of sexual abuse
on children, and she discussed the psychological and emotional components
when the assault was committed by someone the victim knew as opposed to a
stranger. Additionally, Dr. NS testified regarding the impact that sexual as-
sault has on a child’s ability to have relationships and also how it affects the
victim’s self-esteem. In this case, the crimes against SN were committed by
someone she knew, and the evidence at trial clearly established that the crimes
impacted SN’s relationship with her mother and others. Furthermore, Dr. NS’s
testimony concerning the inability to predict what long-term effects, if any, a
child victim of sexual assault might experience was appropriately cabined. We
find a sufficient nexus between this evidence and the evidence of Appellant’s
crimes, and find the military judge did not err in allowing this testimony at
sentencing.
D. Post-Trial Processing
1. Additional Background
The SJAR, dated 8 May 2019, incorrectly listed the maximum term of con-
finement as 70 years. The correct maximum term of confinement was 30 years.
The Personal Data Sheet (PDS) that was attached to the SJAR also con-
tained three errors. First, it listed the wrong basic pay. Second, it failed to list
Appellant’s prior service in the United States Marine Corps (USMC). Third, it
omitted one device on Appellant’s Air Force Good Conduct Medal (AFGCM).
15
United States v. Gere, No. ACM 39697
While it is apparent that this information was corrected during trial and ad-
mitted by the Government without objection, it is also apparent that a different
version of Appellant’s PDS with the errors noted above was attached to the
SJAR.
On 18 May 2019, Appellant submitted his clemency matters to the conven-
ing authority. In his matters, Appellant’s counsel stated that the evidence pre-
sented at trial was insufficient to support any finding of guilt against Appel-
lant. Additionally, Appellant’s counsel complained about the manner in which
the transcript and the record of trial were completed. Appellant did not object
to any of the errors in the SJAR, and the errors were neither corrected nor
mentioned in the addendum to the SJAR signed on 20 May 2019.
The addendum to the SJAR stated “[t]he defense alleges one legal error:
The defense counsel argues that she was not given a reasonable opportunity to
review the transcript or review the audio recordings from trial. I considered
carefully the allegation of error, and find it to be without merit.” The adden-
dum to the SJAR further stated, “My earlier recommendation remains un-
changed. I recommend you approve the findings as adjudged. I recommend that
you approve the findings and sentence as adjudged.” The addendum to the
SJAR did not state or address Appellant’s challenge to the legal and factual
sufficiency to the offenses. However, the staff judge advocate did advise the
convening authority in the SJAR that he was “satisfied that the evidence upon
which the conviction is based is legally sufficient.”
2. Law
Proper completion of post-trial processing is a question of law this court
reviews de novo. United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000); United
States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct. Crim. App. 2004) (citation omit-
ted).
The SJAR “plays a vital role in providing the convening authority with com-
plete and accurate advice in the exercise of command discretion.” United States
v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005) (citation omitted). As our superior
court has noted, Appellant’s greatest chance for post-trial clemency comes from
the convening authority. See United States v. Wheelus, 49 M.J. 283, 287
(C.A.A.F. 1998) (citations omitted). “The better the convening authority is in-
formed the more fairly and justly he will exercise his discretion.” United States
v. Boatner, 43 C.M.R. 216, 218 (C.M.A. 1971) (citation omitted). R.C.M. 1106(d)
requires the SJAR to comment on any allegation of legal error raised in clem-
ency, and must state, at a minimum, a statement of agreement or disagree-
ment with the matters raised by the accused. R.C.M. 1106(d)(4)). “The role of
the convening authority with respect to defense claims of legal error is less
16
United States v. Gere, No. ACM 39697
pivotal to an accused’s ultimate interests [than the convening authority’s role
in clemency].” United States v. Hamilton, 47 M.J. 32, 35 (C.A.A.F. 1997).
Before taking action on a sentence, the convening authority must consider
the SJAR. R.C.M. 1107(b)(3)(A)(ii). The SJAR in an Air Force case should con-
tain a copy of the PDS admitted at trial. Air Force Instruction (AFI) 51-201,
Administration of Military Justice, ¶ A11.15 (18 Jan. 2019). 6 An error in the
SJAR “does not result in an automatic return by the appellate court of the case
to the convening authority.” United States v. Green, 44 M.J. 93, 95 (C.A.A.F.
1996). “Instead, an appellate court may determine if the accused has been prej-
udiced by testing whether the alleged error . . . would have led to a favorable
recommendation by the SJA or corrective action by the convening authority.”
Id. (citations omitted).
Failure to timely comment on incorrect matters in the SJAR, or attached
to the SJAR, waives any later claim of error absent plain error. Scalo, 60 M.J.
at 436 (citations omitted). To prevail on a plain error analysis, Appellant has
the burden of demonstrating: (1) there was an error; (2) it was plain or obvious;
and (3) the error materially prejudiced a substantial right. See id. (citations
omitted). In the context of post-trial processing, Appellant must make at least
some “colorable showing of possible prejudice” demonstrating how the alleged
error potentially affected the opportunity for clemency. Id. at 437 (citation
omitted). The low threshold is designed to prevent undue speculation as to how
an error may have affected “the convening authority’s exercise of such broad
discretion.” Id. (citation omitted).
3. Analysis
Appellant asserts that he is entitled to new post-trial processing because
the addendum to the SJAR failed to address Appellant’s claim of legal error
regarding the legal and factual sufficiency of the offenses of which Appellant
was convicted, and because the SJAR incorrectly listed the maximum term of
confinement. Appellant also claims he is entitled to relief because the PDS that
was attached to the SJAR contained multiple errors. We are not persuaded
that Appellant is entitled to relief.
As to Appellant’s claim that the addendum to the SJAR failed to address
Appellant’s claims that the evidence was legally and factually insufficient, we
find this to be plain and obvious error, but do not find prejudice. “The failure
to address a defense claim of legal error in an addendum to an SJAR can be
remedied through appellate litigation of the claimed error.” Matos, unpub. op.
at *13. Appellant raised this same alleged error in his appeal to this court, and
6This is the version of AFI 51-201 in effect on the date the SJAR indicates it was
prepared—8 May 2019.
17
United States v. Gere, No. ACM 39697
we have resolved it adversely to Appellant. As discussed above, there was no
merit to Appellant’s claim of legal error relative to the legal and factual suffi-
ciency of the evidence, and therefore Appellant cannot make a showing of pos-
sible prejudice. Furthermore, the convening authority had no authority to dis-
approve a finding of guilty even if the convening authority had been convinced
there was error. Article 60, UCMJ, 10 U.S.C. § 860.
As to Appellant’s claim that the wrong maximum term of confinement was
listed in the SJAR, we find this too was plain and obvious error. However, Ap-
pellant has failed to demonstrate a colorable showing of possible prejudice. Un-
der Article 60, UCMJ, the convening authority, in this case, did not have the
ability to commute or set aside the sentence to confinement or the punitive
discharge. Appellant in this case was convicted and sentenced by a military
judge and the sentence adjudged was one-third of the maximum punishment
available with respect to Appellant’s sentence to confinement. Given the lim-
ited options available to the convening authority, Appellant has failed to
demonstrate that if the convening authority was advised of a lesser term of
maximum confinement, the convening authority would have taken some action
favorable to Appellant. Therefore, we find Appellant has failed to demonstrate
possible prejudice.
While we also find the errors or omissions in the PDS that was attached to
the SJAR to be plain and obvious errors, Appellant has not attempted to show,
nor do we find, that he would have received either a favorable recommendation
by the staff judge advocate or favorable action by the convening authority with-
out the error. Additionally, the convening authority was provided with signifi-
cant data concerning Appellant’s meritorious military service, including all of
his enlisted performance reports. Moreover, Appellant included in the clem-
ency submission to the convening authority photos depicting his service in the
USMC, a submission which the convening authority affirmed he reviewed be-
fore taking action. Appellant cannot claim prejudice where the evidence was
before the convening authority. See United States v. Lucero, No. ACM 38386,
2014 CCA LEXIS 743 (A.F. Ct. Crim. App. 1 Oct. 2014) (unpub. op.) (finding
no prejudice where there was nothing preventing the appellant from raising
matters to the convening authority). Appellant, in this case, was convicted of
sexually assaulting a 13-year-old girl, and we find it inconceivable that the
convening authority would have granted relief had the PDS attached to the
SJAR shown Appellant’s correct pay amount, his prior service as a Marine, or
that he had an additional device on his AFGCM. Therefore, we conclude that
Appellant has not met the threshold of establishing a colorable showing of pos-
sible prejudice, and is not entitled to relief.
18
United States v. Gere, No. ACM 39697
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). Accordingly, the find-
ings and sentence are AFFIRMED. 7
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
7 Although not raised by the parties, we note two errors in the court-martial order
(CMO). First, the charged article is incorrectly identified as Article “120” rather than
“120b.” Second, the third specification is incorrectly identified as “specification” rather
than “Specification 3.” We direct the publication of a corrected CMO to remedy these
errors.
19