United States v. Webb

U NITED S TATES A IR F OR CE
C OURT OF C R IMINAL A PPEALS
________________________
No. ACM 39904
________________________
U N ITED STATES
Appellee
v.
Holden T. WEBB
Airman (E-2), U.S. Air Fo rce, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 12 August 2021
________________________
Military Judge: Bryon T. Gleisner (arraignment); Andrew R. Norton.
Sentence: Sentence adjudged on 13 December 2019 by GCM convened at
Wright-Patterson Air Force Base, Ohio. Sentence entered by military
judge on 7 February 2020: Bad-conduct discharge, confinement for 335
days, reduction to E-1, and a reprimand.
For Appellant: Major David A. Schiavone, USAF; Captain Ryan S. Crn-
kovich, USAF.
For Appellee: Major Dayle P. Percle, USAF; Mary Ellen Payne, Esquire.
Before POSCH , RICH ARDSON, and MEGINLEY, Appellate Military
Judges.
Judge MEGINLEY delivered the opinion of the court, in which Senior
Judge POSCH and Judge RICHARDSON joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
MEGINLEY, Judge:
A general court-martial comprised of a military judge convicted Appellant,
contrary to his pleas, of four specifications of willfully disobeying a superior
United States v. Webb, No. ACM 39904
commissioned officer, in violation of Article 90, Uniform Code of Military Jus-
tice (UCMJ), 10 U.S.C. § 890; two specifications of damaging non-military
property, in violation of Article 109, UCMJ, 10 U.S.C. § 909; two specifications
of assault consummated by battery against TA and two specifications of as-
sault consummated by battery against VU, in violation of Article 128, UCMJ,
10 U.S.C. § 928; and one specification of aggravated assault by strangulation
against TA, in violation of Article 128, UCMJ, 10 U.S.C. § 928. 1, 2 The court-
martial sentenced Appellant to a bad-conduct discharge, confinement for 335
days, reduction to the grade of E-1, and a reprimand. The military judge cred-
ited Appellant with 184 days against his sentence for time Appellant spent in
military pretrial confinement. The convening authority took no action on the
sentence.
Appellant raises six issues on appeal, which we have reordered: (1) whether
the military judge’s failure to define “unlawfully strangle” entitles Appellant
to a dismissal of his conviction for aggravated assault, consistent with the rule
of lenity; (2) whether one of his convictions for assault consummated by battery
against TA, and his conviction for aggravated assault by strangulation against
TA, are factually and legally insufficient; (3) whether this court should set
aside Appellant’s conviction for aggravated assault due to various pretrial pro-
cessing issues; (4) whether Appellant’s counsel was ineffective by acquiescing
to the Government proceeding with the aggravated assault charge; (5) whether
the military judge abused his discretion in allowing expert testimony regarding
counterintuitive behaviors of domestic violence victims; and (6) whether the
military judge abused his discretion in allowing the Government to introduce
expert testimony in sentencing related to post-traumatic stress disorder. Find-
ing no error that has materially prejudiced Appellant’s substantial rights, we
affirm the findings and sentence.
I. BACKGROUND
Appellant met TA, the victim of most offenses in this case, in May 2018.
They became friends and by October 2018, their relationship progressed into a
1 Allreferences to the UCMJ and Rules for Courts-Martial are to the Manual for
Courts-Martial, United States (2019 ed.) (MCM).
2 Appellant was charged with some offenses occurring before 1 January 2019; however,
he was acquitted of those offenses. Those offenses include two specifications of willfully
disobeying a superior commissioned officer, one specification of sexual assault, one
specification of indecent visual recording, and one specification of communicating a
threat, in violation of Articles 90, 120, 120c, and 134, UCMJ, 10 U.S.C. § 890, 920,
920c, and 934. Both TA and VU were active duty enlisted service members at the time
of the offenses.
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United States v. Webb, No. ACM 39904
sexual relationship, or as TA described it, “friends with benefits.” TA and Ap-
pellant did not tell others about their relationship; it was important to TA that
“[n]obody knew that [they] were anything other than friends,” as TA “had pre-
viously had a relationship in the office that didn’t go over so well when it was
well known or out there.”
Although TA was in a sexual relationship with Appellant, she was also re-
kindling a relationship she previously had with Airman (Amn) CE. Appellant
found out about this other relationship after a squadron Christmas party on 8
December 2018. When he found out TA might be physically with Amn CE, Ap-
pellant had his roommate, VU, drive him to base. Once on base, Appellant ob-
tained a recall roster from work, found Amn CE’s address, and looked for TA
and Amn CE. Appellant was unsuccessful in finding TA or Amn CE, but later
confronted Amn CE via text message to let him know Appellant and TA were
in a relationship.
TA advised a former supervisor that she wanted to repair her relationship
with Amn CE, and that Appellant’s revelations about their relationship were
disrupting those efforts. TA was also concerned about Appellant’s possessing
pictures of a sexual nature of TA (taken consensually), and told her supervisor
that Appellant had threatened to send these pictures to Amn CE. At trial, TA
testified that Appellant never made this threat to send pictures.
Upon learning about TA’s allegation, on 10 December 2018 Appellant’s
commander, Colonel (Col) RT, issued a no-contact order to Appellant to cease
communications with TA. On 21 December 2018, Col RT issued a formal Mili-
tary Protective Order (MPO), which precluded Appellant from contacting or
being within 500 feet of TA. 3 Appellant repeatedly violated Col RT’s MPO by
communicating with TA and by being within 500 feet of her. When TA made
her allegation, an investigation began that resulted in a lengthy Report of In-
vestigation (ROI) involving allegations of sexual assault, the violation of no
contact orders, damaging non-military property, indecent recording, assault,
and communicating a threat.
On 14 January 2019, TA learned she had become pregnant with Appellant’s
child. TA’s upcoming deployment was cancelled, and because she had moved
out of her home due to the pending deployment, TA moved in with Appellant
and VU. Meanwhile, TA advised Col RT “that she was pregnant and that [Ap-
pellant] was the father and she wanted him involved in the prenatal care and
the postnatal care and said that she had planned on moving in with [Appel-
lant’s] mother.” Accordingly, on 29 January 2019, Col RT rescinded the 21 De-
cember 2018 MPO.
3 The MPO replaced the 10 December 2018 no-contact order.
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United States v. Webb, No. ACM 39904
While TA and Appellant were living with VU, on one night after Appellant
had been drinking, he assaulted VU by repeatedly punching him in the head
and forearms. Appellant then grabbed VU by the wrist and pushed him into
the wall, leaving a hole in the wall. Subsequently, VU asked TA and Appellant
to move out of his house. TA and Appellant moved in with Appellant’s mother,
who lived nearby.
On 25 February 2019, Appellant found out TA had engaged in communica-
tion with her ex-husband. This led to another argument, during which Appel-
lant took TA’s phone and refused to return it. TA tried to retrieve her phone,
but Appellant repeatedly assaulted TA by pushing her. Appellant then locked
himself in a bathroom with TA’s phone. Appellant’s mother, who was in the
house at the time, came to see what was going on and called for Appellant’s
brother, DW, to assist. Appellant opened the bathroom door, pinned TA against
the wall, and threw her into a spare bedroom. Appellant and TA moved to the
front of the house; he then threw TA outside, locked her out of the house, and
again refused to give TA her phone despite her continued requests. DW called
the police and Appellant was arrested. According to TA, Appellant’s mother
told TA to “get out of [her] house and never come back.” TA moved into a rental
property a few days later. TA stated this was the first time Appellant had been
violent toward her. Upon learning about this incident, on 28 February 2019,
Col RT issued a new MPO against Appellant.
On an evening in March 2019, Appellant assaulted TA by strangling her,
and later picked her up and dropped her on the ground; the facts of both of
these incidents are outlined in greater detail in conjunction with our analysis
below. Even though TA was aware of the existence of the no-contact orders and
MPOs, and although she had been physically assaulted by Appellant on two
occasions, she continued to have daily communication with Appellant by text
message, Snapchat, and in person.
During the next few months, Appellant continued to monitor some of TA’s
activities and conversations by checking her phone when she was with him.
Appellant also caused damage to TA’s residence by breaking a door and punch-
ing a hole through the wall. When asked by trial counsel how Appellant would
treat TA after these incidents of physical violence and property damage, TA
stated: “[Appellant] would apologize. Tell me it would never happen again, that
he loved me, that he cared about me. And he would generally do something to
make me happy like, get me dinner, or buy me candy, or buy me ice cream or
something like that.” Eventually, Appellant was discovered at her house and
subsequently restricted to base. TA visited him on Memorial Day weekend in
2019; however, when she attempted to leave and visit her family, Appellant
would not let her leave. TA attempted to call security forces but Appellant took
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United States v. Webb, No. ACM 39904
her phone and ended the call. After this incident, TA tried to end her relation-
ship with Appellant. She began to cooperate with agents of the Air Force Office
of Special Investigations (AFOSI) and eventually disclosed details about her
relationship with Appellant. Due in part to the information provided by TA,
Appellant was ordered into pretrial confinement on 12 June 2019, where he
remained until trial.
II. D ISCUSSION
A. Definition of Strangulation
Specification 4 of Charge V alleged that Appellant “unlawfully strangled”
TA. Appellant argues that because “unlawfully strangled” is not defined in the
text of the statute or the Manual for Courts-Martial, and because there was no
colloquy between the military judge and the parties on the definition of stran-
gulation, the rule of lenity entitles Appellant to a dismissal of this specification.
Appellant specifically points this court to the closing arguments by trial coun-
sel and trial defense counsel and the different standards and multiple inter-
pretations both sides applied. Appellant also claims because “strangulation” is
not defined, the military judge should have discussed the definition of the term
with the parties, which he did not. Additionally, Appellant argues that the
force allegedly applied in this case was of “such minimal degree that the named
victim said she could still ‘talk’ and ‘breathe’” when Appellant had his hands
around TA’s neck, and thus was not clearly strangulation. We find no relief is
warranted.
1. Additional Background
During closing argument, trial counsel argued:
[Appellant] got into an argument with [TA]. He put his hands
around her throat and he squeezed. He strangled her, sir. The
strangulation is but one element in the 2019 version, sir. Did he
put his hands around her neck and squeeze? Yes, he strangled
her. Done.
This doesn’t require a lack of inability [sic] to breathe. It doesn’t
require passing out. It doesn’t require any of those things that
were required when there is an aggravated assault statute. The
strangulation statute has lowered the burden on the govern-
ment. It’s one element, sir and that’s he put his hands around
her neck and he strangled her.
In response, trial defense counsel stated:
[W]hat strangulation means is that it’s the impeding the normal
breathing and circulation of the blood of a person by applying
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United States v. Webb, No. ACM 39904
pressure to the throat or neck. But what did [TA] testify to? She
testified that she could breathe; that she could talk; that she
never lost consciousness; that the -- even to OSI she said that --
in her trial testimony, she said the thumbs were wrapped
around the front of her neck.
But then what she told OSI is that she felt the pressure on the
side of her neck. There has been no evidence presented before
this court then that there was the impeding of her normal
breathing. Because she said she could still breathe, she could
still talk, she never passed out. The government -- there has
been no evidence presented to this court that it inhibited the cir-
culation of blood. The government would ask the court to infer
that that would be the case.
On rebuttal, trial counsel responded:
You heard there was a squeeze on the jugular and carotid arter-
ies and that made her lightheaded and dizzy. Everyone has had
that experience. Perhaps when they tie their tie too tight and
leaned forward. You’ve had that experience. I’ve had that expe-
rience. It’s -- that is the impediment of blood to the brain. That’s
what she felt and that’s all that’s required for this specification,
Your Honor. Not actual choking. Not actual passing out or the
inability to breathe or communicate. The obstruction of breath-
ing or disjunctive normal circulation. That’s what happened.
2. Law on Strangulation
As part of the National Defense Authorization Act for Fiscal Year 2019,
Article 128(b), UCMJ, was amended to include “strangulation” and “suffoca-
tion” as “conduct constituting aggravated assault for purposes of the Uniform
Code of Military Justice.” Pub. L. No. 115-232, § 531, 132 Stat. 1636 (13 Aug.
2018). This amendment to Article 128, UCMJ, took effect on 1 January 2019.
Id. at § 531(b). Article 128(b)(3), Aggravated Assault, UCMJ, now states that
“[a]ny person subject to this chapter . . . who commits an assault by strangula-
tion or suffocation; is guilty of aggravated assault and shall be punished as a
court-martial may direct.” See Manual for Courts-Martial, United States (2019
ed.) (MCM), App. 2, at A2-45. 4
4 The first appearance of “strangulation” and “suffocation” appears in the MCM, pt. IV,
¶ 77.a.(b), which states, “NOTE: For additional statutory language of ‘strangulation’
and ‘suffocation,’ added as part of the FY19 NDAA, See Appendix 2, Article 128(b),
UCMJ[.]”
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“Strangulation” is not defined in the text of the statute or the MCM. How-
ever, Appendix 17 of the Manual for Courts-Martial, Analysis of Punitive Arti-
cles, notes that two amendments to Article 128, UCMJ, are aligned “more
closely with federal civilian practice under 18 U.S.C. § 113.” See MCM, App.
17, at A17-13. Section 113 of Title 18 of the United States Code, Assaults with
maritime and territorial jurisdiction, defines “strangling” as “intentionally,
knowingly, or recklessly impeding the normal breathing or circulation of the
blood of a person by applying pressure to the throat or neck, regardless of
whether that conduct results in any visible injury or whether there is any in-
tent to kill or protractedly injure the victim . . . .” 18 U.S.C. § 113(b)(4).
An issue of statutory construction is a question of law we review de novo.
United States v. Wilson, 76 M.J. 4, 6 (C.A.A.F. 2017) (citing United States v.
Atchak, 75 M.J. 193, 195 (C.A.A.F. 2016)). “Unless ambiguous, the plain lan-
guage of a statute will control unless it leads to an absurd result.” United States
v. King, 71 M.J. 50, 52 (C.A.A.F. 2012) (citing United States v. Lewis, 65 M.J.
85, 88 (C.A.A.F. 2007)). “Whether the statutory language is ambiguous is de-
termined ‘by reference to the language itself, the specific context in which that
language is used, and the broader context of the statute as a whole.’” United
States v. McPherson, 73 M.J. 393, 395 (C.A.A.F. 2014) (quoting Robinson v.
Shell Oil Co., 519 U.S. 337, 341 (1997)). Any ambiguity should be resolved in
favor of lenity. United States v. Murphy, 74 M.J. 302, 311 (C.A.A.F. 2015) (cit-
ing Cleveland v. United States, 531 U.S. 12, 25 (2000)) (additional citations
omitted).
“[T]he rule of lenity’s teaching [is] that ambiguities about the breadth of a
criminal statute should be resolved in the defendant’s favor.” United States v.
Davis, “___ U.S. ___, 139 S. Ct. 2319, 2333 (2019). “[M]uch like the vagueness
doctrine, it is founded on ‘the tenderness of the law for the rights of individuals’
to fair notice of the law ‘and on the plain principle that the power of punish-
ment is vested in the legislative, not in the judicial department.’” Id. (quoting
United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820) (additional cita-
tion omitted)). Resorting to the rule of lenity, however, is reserved for those
situations in which “[a]fter ‘seiz[ing] everything from which aid can be derived,’
[the court is] left with an ambiguous statute.” United States v. Bass, 404 U.S.
336, 347 (1971) (second alteration in original) (quoting United States v. Fisher,
6 U.S. (2 Cranch) 358, 386 (1805) (footnote omitted)).
3. Analysis and Conclusion
Prosecutors long have been able to charge allegations involving strangula-
tion as an assault under Article 128, UCMJ. The only difference now is that
aggravated assault by strangulation has its own charging mechanism. The
Government still has to prove an assault—that Appellant attempted, offered,
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United States v. Webb, No. ACM 39904
or did bodily harm to TA. The most substantial change in cases alleging stran-
gulation is that now, the Government is alleviated from having to prove an
appellant inflicted substantial bodily or grievous bodily harm. This is im-
portant to note because Appellant asks this court to consider other definitions
of strangulation that focus on what appear to be versions of substantial or
grievous bodily harm, directing us to a Kansas Supreme Court case, State v.
Robinson, 306 Kan. 431, 439 (2017), where that court stated, “In the context of
legal usage, strangling does not require death but simply an attempt to shut
off a victim’s air supply.” (Emphasis added). Appellant also directs us to Mer-
riam-Webster’s dictionary, which defines strangling as “to choke to death by
compressing the throat with something (such as a hand or rope)” or “to obstruct
seriously or fatally the normal breathing of.” MERRIAM -WEBSTER, Strangle,
https://www.merriam-webster.com/dictionary (last visited 13 May 2021).
We decline to accept Appellant’s position, nor do we believe we must resort
to the rule of lenity in this case. In light of the fact that substantial or grievous
bodily harm is not an element to prove aggravated assault by strangulation,
we believe the definition as listed under 18 U.S.C. § 113 accurately describes
the current state of the law in the absence of a presidential executive order
otherwise. Additionally, although the parties did not discuss the definition of
“strangle” during trial, Appellant’s court-martial consisted only of a military
judge and the military judge is “presumed to know the law and to follow it
absent clear evidence to the contrary.” United States v. Erickson, 65 M.J. 221,
225 (C.A.A.F. 2007) (citing United States v. Mason, 45 M.J. 483, 485 (C.A.A.F.
1997)). There is no such evidence suggesting the military judge did not follow
the law. We are confident the law and the record provide enough clarity of the
offense charged, and that we can conduct a review of legal and factually suffi-
ciency.
B. Legal and Factual Sufficiency (Specifications 3 & 4 of Charge V)
Appellant asserts that the evidence for Specifications 3 and 4 of Charge V
(the March 2019 assaults of TA), for which he was convicted, is legally and
factually insufficient. We disagree.
1. Additional Background
According to TA’s testimony, the allegations levied in Specifications 3 and
4 occurred on the same night; Specification 4 occurred before Specification 3.
Specification 4 alleged that Appellant “unlawfully strangled” TA’s neck with
his hands; Specification 3 alleged that Appellant picked up TA with his hands
and dropped her to the ground. 5
5 Appellant was sentenced to 30 days in confinement for Specification 3 and 150 days
for Specification 4, each to be served consecutively to all other terms of confinement.
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United States v. Webb, No. ACM 39904
The Government’s primary evidence of these allegations came from TA and
a Snapchat text message discussion between TA and Appellant. In March
2019, Appellant drove to TA’s residence. While there, Appellant became very
drunk, to the point he was stumbling and falling over. An argument between
TA and Appellant ensued and Appellant wanted to leave the residence. In or-
der to prevent Appellant from driving in his intoxicated state, TA took away
his keys. Appellant kept asking for his keys back, but TA would not return
them to Appellant. The argument escalated when Appellant put his hands
around TA’s throat and strangled her. TA testified about the strangulation as
follows:
Q [Trial Counsel]. When he puts his hands around your neck, do
you just stand there or do you move somewhere?
A [TA]. He pushes me into the couch to where I’m laying on the
couch, half of -- my upper body is on the seated part of the couch
and my lower body is on the floor.
Q. Can you describe for [the military judge], how he had his
hands around your neck?
A. He had his hands around my neck with both hands, thumbs
in front, and pressing down.
Q. Can you show [the military judge]?
A. Like this.
Q. The witness has put her hands together with her fingers ad-
jacent to each other and interlocking around the thumbs. When
he had his hands around your neck like that, you said he
squeezed?
A. Yes.
Q. I know it’s hard to judge these times -- these types of things,
but with how much force did he squeeze?
A. I -- I could talk because I managed -- I said the word stop --
or, I said, please stop. But -- so I know that I could breathe, but
I remember staring at the ceiling and getting dizzy and thinking
I’m going to die.
Q. What did the dizzy feeling feel like?
A. That I would pass out but I could still breathe and ----.
Q. Did you start to see stars?
A. A little bit. I thought that maybe if I could let myself pass out
that I would be able to breathe though.
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TA testified Appellant had his hands on her neck “for 30 seconds to a mi-
nute.” TA then stated that Appellant let go of her neck when he “passed out,”
then clarified that “he didn’t fully pass out, but he was going to pass out from
being drunk and like, fell onto the ground.” When trial counsel asked what TA
was doing with her hands while Appellant was squeezing her throat, TA
stated, “I had my hands over his trying to pull them off, but I remember not
feeling like I could do anything else.” On cross-examination, TA reiterated that
Appellant put his hands around her throat, but testified she could still breathe,
talk, and she never lost consciousness. TA also acknowledged she told AFOSI
agents that when Appellant’s hands were on her neck, the pressure was on the
sides.
When Appellant came to, he still wanted his keys. TA was in her living
room and Appellant started walking toward her, came up to her, and pinned
her arms against her head next to her ears. TA testified:
He had gotten behind me and walked me backwards to the point
where he was sitting down on a chair and when he had sat down,
I had kneeled down in front of him, still with my arms pinned.
And he was telling me to give me back his keys. I told him that
I wasn’t giving him back his keys and I also said I can’t give you
your keys with my arms like this. So he had let go of my arms
and then at that point, we were still sitting down so I kind of fell
forward onto the floor. Now I’m on all fours, hands and knees
and crawled forward. He then stood up and picked me up by the
back of my pants. Picked me up to about chest height and
dropped me on the ground.
TA stated she had hardwood floors, and when Appellant dropped her, it hurt.
After he assaulted her, Appellant fell asleep on the couch. TA later woke him
up and told him to go to bed.
The next day, Appellant told TA “he was really sorry and he’d never do it
again, that he cares about [TA], that he loves [TA], and that he doesn’t remem-
ber it, that he was drunk, and he promises he wouldn’t do it again.” In Snap-
chat messages between Appellant and TA, the following exchange occurred: 6
6 The Snapchat messages, presented verbatim without correction and as admitted into
evidence, indicate TA was having a conversation with someone listed in her phone as
“Dylan Tyler.” However, TA testified Appellant contacted her with a false name/ac-
count of “Dylan Tyler.” TA further stated that she knew she was talking to Appellant
because Appellant told her that the messages were from him. TA also explained that
Appellant used a false name because “law enforcement had already had our phones
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United States v. Webb, No. ACM 39904
Appellant: [TA] I’m sorry I know I can’t ever take them back but
please give me another chance to prove those wrong
TA: Prove what wrong, you being shitty to me since February
when the cops got called
Appellant: Just please give me another chance I will prove all
that wrong
TA: And you’ll never lay a hand on me again?
Appellant: No never
TA: But why did you
Appellant: [TA] I never wanted to the first time I just felt be-
trayed and the second time I didn’t even remember
TA: You were so drunk that you don’t remember? Cause I told
you that you put your hands around my neck and you justified
it with “it wasn’t hard” but it was. So do you really not remem-
ber?
Appellant: Like I remembered after you told me but during the
time I didn’t know what I was doing
TA: All cause I wouldn’t let you drive home drunk
TA: And you picked me up by the back of my pants after holding
me down, I was crawling away and you picked me up and
dropped me on the floor
TA: I don’t wanna be with someone that I don’t know if they’re
going to hurt me or not when they’re drunk
Appellant: [TA] by no means was it alright but you’ve drank with
me numerous times I’m not ever really like that
TA: Not ever “really” like that but the past couple times you hurt
me at my house, then made me walk home from [friend’s] and
then called me a whore in your dorm and I left.
TA: Those were all the past few times we drank
Appellant: Yes I understand but we’ve had good drinking times
in between . . .
once and they would most likely go through [them] again,” and because the military
protective order was still in effect. These messages were admitted without objection by
the Defense.
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United States v. Webb, No. ACM 39904
TA was the only Government witness with direct knowledge of Specifica-
tions 3 and 4. Appellant asserts that she was not a credible witness, given her
“penchant for lying.”
We are not persuaded and find Appellant’s convictions both legally and fac-
tually sufficient.
2. Law on Legal and Factual Sufficiency
We review issues of legal and factual sufficiency de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (citing United States v. Cole, 31
M.J. 270, 272 (C.M.A. 1990)). Our assessment of legal and factual sufficiency
is limited to the evidence produced at trial. United States v. Dykes, 38 M.J. 270,
272 (C.M.A. 1993) (citations 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). The “government is free to meet its
burden of proof with circumstantial evidence.” Id. (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.’”
Wheeler, 76 M.J. at 568 (alteration in original) (quoting Washington, 57 M.J.
at 399).
3. Analysis and Conclusion
The elements of Specification 4 of Charge V alleging aggravated assault by
strangulation, in violation of Article 128, UCMJ, include: (1) that at the time
and place alleged, Appellant wrongfully assaulted TA; and (2) that Appellant
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United States v. Webb, No. ACM 39904
did so by strangling TA’s neck with his hands. We make this determination
after a review of the charged specification and the language in 10 U.S.C. § 928,
which states that one “who commits an assault by strangulation or suffocation”
commits an aggravated assault. See MCM, App. 2, at A2-45. We do not require
a pronouncement from the President. 7
The elements of Specification 3 of Charge V alleging assault consummated
by battery, in violation of Article 128, UCMJ, of which Appellant was convicted,
include: (1) that at the time and place alleged, Appellant did bodily harm to
TA; (2) that the bodily harm was done by unlawfully picking up TA with his
hands and dropping her on the ground; and (3) that the bodily harm was done
with unlawful force or violence. See MCM, pt. IV, ¶ 77.b.(2).
Appellant argues TA’s lack of credibility renders these two specifications
legally and factually insufficient. We agree TA had some credibility issues; the
record, as well as her own in-court testimony, showed that TA lied to multiple
individuals and authorities about various aspects of her allegations and about
her relationship with Appellant. This included admissions, under oath, that
TA lied to defense counsel during one of their interviews and lied to AFOSI
agents about the details of her sexual assault allegation. Appellant also notes
TA was inconsistent regarding where on TA’s throat Appellant was pressing
when he strangled her.
However, Appellant fails to appreciate the significance of the Snapchat
messages. Those messages, and this part of the exchange in particular, corrob-
orate TA’s testimony about what happened on this particular night in March
2019:
TA: You were so drunk that you don’t remember? Cause I told
you that you put your hands around my neck and you justified
it with “it wasn’t hard” but it was. So do you really not remem-
ber?
Appellant: Like I remembered after you told me but during the
time I didn’t know what I was doing
Applying the plain meaning of “strangling” and the definition in 18 U.S.C.
§ 113(b)(4), supra, we find Appellant’s conviction for aggravated assault by
strangulation to be legally and factually sufficient. The mere fact that TA could
still breathe and talk does not mean Appellant did not commit the charged
conduct. TA’s testimony indicates that Appellant, at a minimum, recklessly
7 “Of course, while the views . . . of the President in promulgating [Manual provisions]
are important, they are not binding on this Court in fulfilling our responsibility to in-
terpret the elements of substantive offenses.” United States v. Mance, 26 M.J. 244, 252
(C.M.A. 1988).
13
United States v. Webb, No. ACM 39904
impeded her normal breathing or circulation of the blood by applying pressure
to her throat; TA testified she became “dizzy,” started seeing stars, and com-
mented that “I thought that maybe if I could let myself pass out that I would
be able to breathe though.” Furthermore, while there were some inconsisten-
cies in her testimony about exactly where Appellant was applying force to her
neck, TA was consistent that Appellant’s hands were around her neck—which
is direct evidence of the means by which Appellant strangled TA. She also
demonstrated for the military judge how Appellant had his hands around her
neck, as she “put her hands together with her fingers adjacent to each other
and interlocking around the thumbs.” Viewing the evidence in the light most
favorable to the Prosecution, we find that a rational factfinder could have found
Appellant guilty of both the elements of the offense beyond a reasonable doubt
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 for Specification 4 of Charge V both
legally and factually sufficient.
We also find Appellant’s conviction for assault consummated by battery, as
reflected in Specification 3 of Charge V, to be legally and factually sufficient.
During closing argument, trial defense counsel stated, based on TA’s descrip-
tion of what happened, “Yet [Appellant] is somehow able to lift her to a 90
[degree] angle with one arm and then drop her. That doesn’t make sense.” We
disagree. TA testified that in February 2019, she weighed “90 pounds at most”
and was four feet, eleven inches tall. Furthermore, the military judge had the
opportunity to observe Appellant’s physical presence in relation to that of TA.8
We believe it is rational for the military judge, based on in-court observations,
to conclude that Appellant would have been able to pick TA up and drop her as
she described. Again, viewing the evidence in the light most favorable to the
Prosecution, we find that a rational factfinder could have found Appellant
guilty of both the elements of the offense beyond a reasonable doubt 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 per-
sonally observed the witnesses, we also conclude the evidence is factually suf-
ficient and are convinced of Appellant’s guilt beyond a reasonable doubt. There-
fore, we find Appellant’s conviction for Specification 3 of Charge V both legally
and factually sufficient.
8 Additionally, in closing argument, the Defense stated, “Now [Appellant] is strong --
is tall.” We also note that Appellant’s sentencing exhibits include pictures of Appellant;
he was 20 years old at the time of the incidents, and had played football in high school.
14
United States v. Webb, No. ACM 39904
C. Preferral and Referral Issues Related to Specification 4 of Charge
V (Aggravated Assault)
1. Additional Background
Appellant asserts numerous issues regarding the pretrial processing of
Specification 4 of Charge V. That specification, as referred, reads, “In that [Ap-
pellant] did, at or near Dayton, Ohio, between on or about 1 March 2019 and
on or about 31 March 2019, unlawfully strangle [TA’s] neck with his hands.”
Specifically, Appellant argues (1) that trial counsel did not have the authority
to prosecute him for aggravated assault because the specification at issue mir-
rored the model specification for assault consummated by a battery; (2) the
specification made no statutory reference to aggravated assault; (3) the staff
judge advocate’s pretrial advice told the convening authority that Appellant
had only been charged with assault consummated by a battery; and (4) the
convening authority made no indication that he intended to refer anything
other than that which his staff judge advocate advised him to refer. Appellant’s
counsel further argues that (1) Appellant’s conviction for aggravated assault
“cannot stand for the plain and simple fact that this specification was never
referred to trial,” and (2) “what occurred is not akin to a ‘major/minor change’
pursuant to [Rule for Courts-Martial (R.C.M.)] 603, and the Government can-
not claim safe harbor under such a theory.” 9
Charges were preferred on 12 July 2019 and Appellant waived the Article
32, UCMJ, 10 U.S.C. § 832, preliminary hearing on 18 July 2019. On 23 July
2019, the general court-martial convening authority’s staff judge advocate
(SJA) provided his written pretrial advice in accordance with Article 34,
UCMJ, 10 U.S.C. § 834. In this memorandum, the SJA advised the convening
authority that Appellant had been “charged with . . . one charge and six speci-
fications of assault consummated by a battery in violation of Article 128,
UCMJ.” (Emphasis added). Appellant rightfully asserts that the pretrial ad-
vice did not mention Appellant was charged with aggravated assault. Although
Appellant signed a receipt for the pretrial advice on 24 July 2019, his counsel
signed a receipt for the pretrial advice on 1 March 2020, nearly three months
after the conclusion of Appellant’s trial.
During Appellant’s arraignment on 29 July 2019, trial counsel correctly an-
nounced the general nature of the charges as follows: 10
[S]ix specifications of willfully disobeying a superior commis-
sioned officer in violation of Article 90, UCMJ; two specifications
9 R.C.M. 603 provides guidance on major and minor changes.
10 Appellant waived the statutory five-day waiting period of Article 35, UCMJ, 10
U.S.C. § 835.
15
United States v. Webb, No. ACM 39904
of damaging nonmilitary property, in violation of Article 109[,]
UCMJ; one specification of sexual assault, in violation of Article
120, UCMJ; one specification of indecent visual recording, in vi-
olation of Article 120c, UCMJ; five specifications of assault con-
summated by battery and one specification of aggravated assault
by strangulation, in violation of Article 128[,] UCMJ; and one
specification of communicating a threat, in violation of Article
134, UCMJ.
(Emphasis added.)
On 3 September 2019, before a new military judge and prior to a motions
hearing, trial counsel announced the general nature of the charges included
“six specifications of assault consummated by a battery, in violation of Article
128[,] UCMJ.” On 9 December 2019, prior to the start of Appellant’s trial, trial
counsel reverted back to how the general nature of the charges were originally
described at the first Article 39(a), UCMJ, session: “five specifications of as-
sault consummated by battery and one specification of aggravated assault by
strangulation, all in violation of Article 128, UCMJ.”
While the military judge did not discuss the maximum available punish-
ments with the parties, the parties alluded to those maximum punishments.
During sentencing argument, trial counsel asked the military judge to sen-
tence Appellant to two years of confinement for the strangulation offense. Trial
defense counsel did not object, although no more than six months of confine-
ment was authorized for assault consummated by a battery without an aggra-
vating sentencing factor. See MCM, pt. IV, ¶ 77.d.(2)(a). In its argument on
sentence, the Defense told the military judge, “You know the facts of the case
and you know the range of punishments available for strangulation.”
Appellant advises this court that his trial defense counsel, as well as TA’s
Special Victim’s Counsel (SVC), were confused about the nature of the charges.
Specifically, trial defense counsel stated, through their motions, that Appellant
had been “charged with . . . one charge and six specifications of assault con-
summated by battery, in violation of Article 128, UCMJ,” and TA’s “Input on
[the] Defense Offer of Plea Agreement” did not refer to the strangulation spec-
ification as an aggravated assault. 11 Appellant also states that the word “ag-
gravated” appeared only once during the litigated court-martial, when trial
counsel was making his closing argument.
Trial defense counsel never objected to nor sought clarification on the na-
ture of the charges. Appellant raises this issue for the first time on appeal.
11 Appellant submitted an offer for plea agreement on 24 September 2019. That same
day, the convening authority disapproved the offer.
16
United States v. Webb, No. ACM 39904
2. Law and Analysis
a. Pretrial Advice
“Whether a specification is defective and the remedy for such error are
questions of law, which we review de novo.” United States v. Ballan, 71 M.J.
28, 33. (C.A.A.F. 2012) (citations omitted). “The convening authority may not
refer a specification under a charge to a general court-martial unless . . . [t]he
convening authority has received the advice of the staff judge advocate re-
quired under R.C.M. 406 and Article 34(a)[, UCMJ, 10 U.S.C. § 834(a)].”
R.C.M. 601(d)(2)(B).
Any “[d]efenses or objections based on defects (other than jurisdictional de-
fects) in the preferral, forwarding, or referral of charges, or in the preliminary
hearing” must be raised before a plea is entered. R.C.M. 905(b)(1). “Failure by
a party to raise defenses or objections or to make motions or requests which
must be made before pleas are entered under subsection (b) of this rule forfeits
the defenses or objections absent an affirmative waiver.” R.C.M. 905(e)(1).
Appellant claims two errors related to the contents of the pretrial advice
regarding Specification 4 of Charge V: that the SJA’s pretrial advice told the
convening authority that Appellant had only been charged with assault con-
summated by a battery, and that the convening authority made no indication
that he intended to refer anything other than that which his SJA advised him
to refer. The SJA’s pretrial advice was completed on 23 July 2019; and while it
inaccurately stated that the aggravated assault specification was an assault
consummated by a battery, the pretrial advice contained all of the information
required by R.C.M. 406. It also specifically stated that the charges and specifi-
cations were “generally in proper form,” and that they “alleged offenses under
the UCMJ.” R.C.M. 406(c) requires a copy of the pretrial advice to be served on
the defense. The record of trial contains a Memorandum for Record that the
SJA’s pretrial advice was served on the accused on 24 July 2019; the record
does not indicate why trial defense counsel receipted for the pretrial advice on
1 March 2020.
Nonetheless, objections to defects in the preferral, forwarding, investiga-
tion, or referral of charges must be raised before pleas are entered or they are
forfeited absent an affirmative waiver. R.C.M. 905(b)(1), (e). Finding no affirm-
ative waiver, we find Appellant forfeited this issue. We analyze such forfeited
claims for plain error. United States v. Zegarrundo, 77 M.J. 612, 613 (A.F. Ct.
Crim. App. 2018) (citations omitted). “To prevail under a plain error analysis,
[an appellant] must persuade this Court that: ‘(1) there was an error; (2) it was
plain or obvious; and (3) the error materially prejudiced a substantial right.’”
United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005) (quoting United States
v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)) (additional citation omitted). The plain
17
United States v. Webb, No. ACM 39904
error doctrine “is to be used sparingly, solely in those circumstances in which
a miscarriage of justice would otherwise result.” United States v. Fisher, 21
M.J. 327, 328–29 (C.M.A. 1986) (quoting United States v. Frady, 456 U.S. 152,
163 n.14 (1982)).
We find there was obvious error, but even so, Appellant has not articulated
how he was materially prejudiced. Appellant fails to cite to any case holding
that, when there is a conflict between the pretrial advice and the charge sheet,
the pretrial advice controls. The pretrial advice is not equivalent to a charging
document. Further, Appellant has failed to show, in this judge-alone case, that
the result of his court-martial would have been any different had the pretrial
advice referenced a specification of aggravated assault, and even concedes that
“there is little question that the military judge convicted [him] of aggravated
assault.” Finally, the military judge sentenced Appellant to 150 days for this
offense, below the maximum possible punishment of six months’ confinement
for assault consummated by a battery. We find Appellant was not prejudiced
in this pretrial error.
b. Notice of Offense
Appellant also asserts that trial counsel did not have the authority to pros-
ecute him for aggravated assault because “the specification at issue mirrored
the model specification for assault consummated by a battery,” the specifica-
tion made no statutory reference to aggravated assault, and the convening au-
thority referred the specifications as outlined in the pretrial advice to trial,
none of which were labeled an aggravated assault.
We glean from this portion of the assignment of error that Appellant is es-
sentially arguing that he was not on notice that he had to defend against an
aggravated assault allegation. “The military is a notice pleading jurisdiction.”
United States v. Fosler, 70 M.J. 225, 229 (C.A.A.F. 2011) (citation omitted). “A
charge and specification will be found sufficient if they, first, contain[ ] the
elements of the offense charged and fairly inform[ ] a defendant of the charge
against which he must defend, and, second, enable[ ] him to plead an acquittal
or conviction in bar of future prosecutions for the same offense.” Id. (alterations
in original) (internal quotation marks and citations omitted). “The rules gov-
erning court-martial procedure encompass the notice requirement: ‘A specifi-
cation is sufficient if it alleges every element of the charged offense expressly
or by necessary implication.’” Id. (quoting R.C.M. 307(c)(3)).
We find Appellant was on notice that he was being charged with aggravated
assault. First, prior to the entry of his pleas at his court-martial, trial counsel
advised the court that the general nature of the charges included one specifi-
cation of aggravated assault; the Defense did not object, nor raise an issue or
motion on the record regarding that notice. Second, based on the Defense’s
18
United States v. Webb, No. ACM 39904
cross-examination of TA, and its subsequent closing argument, it is clear that
trial defense counsel knew they were defending an aggravated assault specifi-
cation. Trial defense counsel evinced his understanding that Appellant was
being tried for aggravated assault as well by referencing “the new law” during
his closing argument. Third, we are confident that the specification at issue
contained the elements of the offense charged, fairly informed Appellant of the
charge against which he had to defend, and enables him to plead an acquittal
or conviction in bar of future prosecutions for the same offense. Finally, Appel-
lant claims TA’s input on the Defense Offer of Plea Agreement evidenced con-
fusion about the strangulation specification. However, the Offer of Plea Agree-
ment, dated 24 September 2019, indicates that trial defense counsel were
aware that this specification charged aggravated assault by strangulation. The
terms of the offer to plead guilty to this specification—minimum confinement
of nine months and possibility of dishonorable discharge—would be lawful pun-
ishments for aggravated assault but would not be lawful punishments for as-
sault consummated by a battery. See MCM, App. 12, at A12-6.
Like the elements, the President has not issued guidance on a “model spec-
ification” for aggravated assault by strangulation, and while such guidance can
be useful, it is not necessary for our court to resolve this AOE. Specification 4
alleged that Appellant unlawfully strangled TA with his hands on her neck.
Thus, both assault and strangulation as delineated by Congress in the statute
were included in the specification. Finally, while the specification made no ref-
erence to aggravated assault, none was required to apprise Appellant of the
charged wrongdoing because it is clearly explained in the statute. We find Ap-
pellant was on notice, that the specification as preferred is legally sufficient,
and that the convening authority properly referred the specification alleging
aggravated assault to trial by general court-martial.
D. Allegations of Ineffective Assistance of Counsel
Alternatively, Appellant argues the following:
[I]f the record is accurate, then Appellant’s defense counsel were
not provided with the pretrial advice until three weeks after the
entry of judgment was signed. Defense counsel’s lack of objection
would, therefore, be excused by the Government’s R.C.M. 701
violation. [However], if the record is inaccurate and defense
counsel were previously provided with the Pretrial Advice at the
appropriate time (or this Court believes that defense counsel
were obligated to file a motion to compel in order to obtain the
Pretrial Advice), then Appellant was prejudiced as a result of
their ineffective assistance.
19
United States v. Webb, No. ACM 39904
Having found that the Defense forfeited the issue of pretrial advice, we will
examine whether Appellant received ineffective assistance of counsel and was
prejudiced thereby.
1. Law on Ineffective Assistance of Counsel
The Sixth Amendment 12 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). We
review allegations of ineffective assistance 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)). In assessing the effectiveness of counsel, we apply the stand-
ard set forth in Strickland 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). See United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F.
2001) (citing United States v. Grigoruk, 52 M.J. 312, 315 (C.A.A.F. 2000)).
“[O]ur scrutiny of a trial defense counsel’s performance is ‘highly deferential,’
and we make ‘every effort . . . to eliminate the distorting effects of hindsight,
to reconstruct the circumstances of counsel’s challenged conduct, and to eval-
uate the conduct from counsel’s perspective at the time.’” United States v. Ak-
bar, 74 M.J. 364, 379 (C.A.A.F. 2015) (omission in original) (quoting Strick-
land, 466 U.S. at 689).
We will not second-guess reasonable strategic or tactical decisions by trial
defense counsel. Mazza, 67 M.J. at 475 (citation omitted). “Defense counsel do
not perform deficiently when they make a strategic decision to accept a risk or
forego a potential benefit, where it is objectively reasonable to do so.” United
States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012) (citing Gooch, 69 M.J. at
362−63). The burden is on the appellant to demonstrate both deficient perfor-
mance and prejudice. Id. (citation omitted).
We consider the following questions to determine whether the presumption
of competence has been overcome: (1) if appellant’s allegations are true, is
there a reasonable explanation for counsel’s actions; (2) if appellant’s allega-
tions are true, did defense counsel’s level of advocacy fall measurably below
the performance ordinarily expected of fallible lawyers; and (3) if defense coun-
sel was ineffective, is there a reasonable probability that, absent the errors,
there would have been a different result. United States v. Polk, 32 M.J. 150,
153 (C.M.A. 1991) (citations omitted); see also Gooch, 69 M.J. at 362.
2. Analysis and Conclusion
In Appellant’s case, we look to the language of R.C.M. 701, which states:
“As soon as practicable after service of charges under R.C.M. 602, trial counsel
12 U.S. CONST. amend. VI.
20
United States v. Webb, No. ACM 39904
shall provide the defense with copies of . . . [a]ll papers that accompanied the
charges when they were referred to the court-martial . . . .” R.C.M. 701(a)(1)(A).
The Record of Trial contains a receipt from Appellant acknowledging that he
received the pretrial advice, the charge sheet, and the convening order. The
record contains no indication that trial defense counsel notified the Prosecution
of failure to receive these documents before trial, or moved the military judge
for appropriate relief. We are hard-pressed to find Appellant’s trial defense
counsel ineffective for not receiving a document from the Government that Ap-
pellant already personally received. 13
We also decline to find that trial defense counsel “acquiesced” to a charge
of aggravated assault, as to suggest trial defense counsel “rolled over” to the
Government. As we find no merit in Appellant’s assignment of error regarding
pretrial or notice matters, we find his trial defense counsel were not ineffective
for failing to raise the issue at trial. We find Appellant was provided effective
assistance of counsel.
E. Admissibility of Expert Testimony
Appellant argues that the military judge abused his discretion in allowing
the Government to present the expert testimony of Dr. MC, a forensic psycholo-
gist, during findings and sentencing. During findings, the military judge, over
defense counsel’s objection, allowed trial counsel to present Dr. MC’s expert
testimony regarding “counterintuitive behaviors of domestic violence victims.”
Trial defense counsel objected to this testimony because TA had already pro-
vided explanations for her actions. Appellant argues Dr. MC’s testimony
“served only as impermissible bolstering.” Additionally, during sentencing, the
military judge, over defense objections, permitted trial counsel to present ex-
pert testimony regarding post-traumatic stress disorder (PTSD) despite TA
having never been diagnosed with or evaluated for PTSD.
1. Additional Background
a. Findings Testimony of Dr. MC
Immediately after Dr. MC was called to testify, trial defense counsel ob-
jected to Dr. MC’s testimony under “[Mil. R. Evid.] 702.” Trial defense counsel
proceeded to advise the military judge that it was the Defense’s understanding
that Dr. MC
13 The Government submitted a motion to compel declarations or affidavits from Ap-
pellant’s trial defense counsel on the issue of pretrial advice. This court denied the
request, finding such a declaration or affidavit to be unnecessary because Appellant
was provided the pretrial advice.
21
United States v. Webb, No. ACM 39904
will be testifying to reasons why people may stay in an abusive
relationship generally. That type of testimony will not help the
trier of fact understand the evidence in this case because
throughout the [G]overnment’s examination of [TA], they re-
peatedly asked her why she stayed, why did she make the state-
ments she did, why did she continue to engage in behaviors she
did. So, the court is already -- has the knowledge of why, in this
case specifically, [TA] remained in -- the reason she gave for why
she remained in the relationship. Having Dr. [MC] testify as to
reasons why people generally may stay in abusive relationships
doesn’t help the trier of fact understand the particularized evi-
dence in this case.
Trial counsel responded that Dr. MC would testify about the “psychological
principles inherent in domestic violence victims and the complex and scientif-
ically-based reasons why individuals stay in situations that most people would
think, without his background, [are] counterintuitive.” After hearing a brief
argument from trial defense counsel, the military judge ruled, stating,
Considering whether the subject matter of the proffered testi-
mony will assist the factfinder and considering [Mil. R. Evid.]
702, I find that the [G]overnment is not limited to the evidence
presented through the complaining witness. They are not lim-
ited to -- be unable to present corroborative or perhaps other ev-
idence that would assist the factfinder in interpreting that tes-
timony.
Further, I do find that the proffered expert testimony is appro-
priate under [Mil. R. Evid.] 702 and is likely to be of assistance
to the factfinder in understanding complex and scientific evi-
dence, which will -- may have to do with psychological or scien-
tific reasons for such behavior. So, the defense objection on the -
- whether the subject matter is appropriate for expert testimony
is overruled.
There was no further objection regarding Dr. MC’s credentials or qualifica-
tions as an expert in forensic psychology, nor did the defense object to his tes-
timony on direct examination. After being qualified as an expert, Dr. MC tes-
tified about why victims of domestic violence stay or return to abusive relation-
ships, specifically stating:
Probably the number one reason why abuse victims stay in those
relationships is some sort of fear. Sometimes that fear is of re-
taliation. If I leave the relationship than [sic] he is going to hurt
me in some way. The hurt isn’t always physical. It’s sometimes
22
United States v. Webb, No. ACM 39904
psychological, but there is some validity to that fear. Because the
research has also shown that a woman is most at risk from an
abusive relationship when she tries to get out of it.
Dr. MC provided other testimony regarding domestic violence and applied
those principles to Appellant’s case. During cross-examination, Dr. MC
acknowledged he had not conducted an evaluation on TA, and came to his opin-
ions based on his observations of her in an interview and based upon her trial
testimony. Trial defense counsel challenged Dr. MC’s opinion that TA’s behav-
ior was consistent with psychological principles behind behaviors of domestic
abuse victims by asking him about numerous lies told by TA that were not
necessarily counterintuitive victim behavior during this relationship. Trial de-
fense counsel also postured research to Dr. MC that the “act of telling lies com-
promises a person’s memory for the truth,” a statement to which Dr. MC re-
sponded, “It can, yes.”
b. Sentencing Testimony
In sentencing, the Government first called TA as a witness. She testified
about how Appellant’s crimes impacted her. She stated she went from being a
caring person to not trusting people. She stated that when she is in public
places, she fears she will see Appellant. She noted she does not like people in
her personal space, which “triggers [her] to go back to that situation where
[she] was in [her] house and [Appellant] was choking [her].” She added, “[I]f
anybody startles me, it triggers one of these flashbacks” and agreed she is “eas-
ily started by little stimuli.” She further testified that she believes she is par-
anoid; she checks her house, locks, windows, and outside the house multiple
times a day. She said she has been painted as a liar and manipulator, and
“people didn’t believe [her].” She testified that she could only guess it would
take months or years to get to a good place. TA also testified about how flash-
backs she suffered would create physiological reactions:
[I]t triggers a panic attack and it will give me shortness of
breath, chest pain. I feel like I can’t see, tunnel vision and when
I come back to reality, it will feel like I’m still in danger. So, I’ll
have to leave a situation when these things happen to me.
Near the conclusion of its sentencing case, the Government recalled Dr. MC
to testify. The military judge, over defense objections, allowed trial counsel to
present expert testimony from Dr. MC regarding PTSD. Appellant argues
there was no evidence that TA claimed to suffer from PTSD, or that she had
ever been diagnosed with, treated for, or evaluated for PTSD.
Trial defense counsel argued that Dr. MC’s testimony would not be “proper
sentencing evidence under [R.C.M.] 1001,” and “[b]ased on the [D]efense’s un-
derstanding, wouldn’t help the trier of fact, under [Mil. R. Evid.] 702.” Trial
23
United States v. Webb, No. ACM 39904
counsel responded that Dr. MC would testify about “the diagnostic criteria of
[PTSD]. The diagnostic criteria do fit very closely with what [TA] testified to
all [sic] direct and it does help the trier of fact contextualize victim impact in
this case as proper victim impact testimony under [R.C.M.] 1001(b)(4).”
The military judge initially ruled as follows:
[T]he objection is overruled as far as being improper evidence in
aggravation, as the court finds that it is relevant under [R.C.M.]
1001(b)(4) with regard to the psychological impact on the victim.
Further, the court finds that the witness’s testimony regarding
the diagnostic criteria with regard to specific diagnosis -- diag-
noses, would be helpful to the factfinder. So, the objection is
overruled on the grounds of [R.C.M.] 1001(b)(4) and [Mil. R.
Evid.] 702.
Dr. MC proceeded to testify about what causes PTSD and the symptoms;
he then applied the facts of the case to the PTSD criteria, despite having never
evaluated or diagnosed TA. 14 He found in TA’s testimony several categories of
indicators for PTSD, including intrusive symptoms like nightmares and flash-
backs, avoidance, change in mood and cognition, and hypervigilance.
Finally, when asked by trial counsel how long a treatment plan for PTSD
would take, Dr. MC stated, “I would say no less than six months to a year, but
certainly some patients ----,” before his testimony was objected to for relevance
by trial defense counsel. Trial counsel argued Dr. MC was making a “fact of
consequence more or less likely in the sentencing phase of this court martial
. . . [in that] [TA] is going to have a long and slow recovery from the crimes that
she’s been a victim of.” Trial defense counsel stated, “I think the doctor had
said he hadn’t evaluated her and we don’t know that she has any diagnosis.
He’s just talking about the process for someone to be treated for PTSD. We
don’t know that that’s the case here and it’s not relevant.” The military judge
allowed the testimony to “educate the court on what PTSD is and conse-
quences.”
Immediately before Dr. MC’s cross-examination testimony, the military
judge stated,
Having heard the remainder of [Dr. MC’s] testimony, consider-
ing the defense[’]s previous objection, the court applies and [sic]
[Mil. R. Evid.] 403 balancing test and, as the witness testified,
[TA] has not been diagnosed, at least by the witness, with PTSD.
14 Dr. MC testified,“[W]e can kind of look at someone like [TA] and say, looks like that
might be something appearing to be PTSD. But we do have a professional responsibil-
ity before we diagnose somebody to complete a full evaluation.”
24
United States v. Webb, No. ACM 39904
So, with regard to the treatment, the court finds [Dr. MC’s] tes-
timony to have some probative value, albeit not particularly
high. However, applying the [Mil. R. Evid.] 403 balancing test
and comparing that probative value against the danger of unfair
prejudice, the court is confident in its ability to place the testi-
mony in its appropriate contexts [sic] and consider it for its
proper purposes. The court will consider that testimony.
2. Law on Admissibility of Expert Testimony
“We review a military judge’s decision to admit or exclude evidence for an
abuse of discretion.” United States v. Erickson, 76 M.J. 231, 234 (C.A.A.F. 2017)
(citing United States v. Olson, 74 M.J. 132, 134 (C.A.A.F. 2015)). “A military
judge abuses his discretion when: (1) the findings of fact upon which he predi-
cates 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)).
Mil. R. Evid. 702 governs the testimony of expert witnesses in a trial by
court-martial. 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 understand the evidence
or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and meth-
ods; and
(d) the expert has reliably applied the principles and methods to
the facts of the case.
Military judges serve as gatekeepers “tasked with ensuring that an expert’s
testimony both rests on a reliable foundation and is relevant.” United States v.
Sanchez, 65 M.J. 145, 149 (C.A.A.F. 2007) (Daubert v. Merrell Dow Pharma-
ceuticals, Inc., 509 U.S. 579, 597 (1993); Kumho Tire Co. v. Carmichael, 526
U.S. 137, 141 (1999)). “[T]he gatekeeping inquiry must be tied to the facts of a
particular case.” Id. (quoting Kumho Tire Co., 526 U.S. at 150).
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United States v. Webb, No. ACM 39904
The United States Court of Appeals for the Armed Forces has articulated
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 and Kumho Tire Co.—
Houser is consistent with these decisions and continues to guide the admission
of expert testimony in courts-martial. Id. (citations omitted). “[W]hile satisfy-
ing every Daubert or Houser factor is sufficient, it is not necessary.” Sanchez,
65 M.J. at 149. The military judge’s inquiry is “flexible” and “tied to the facts
of a particular case.” Id. (internal quotation marks and citations omitted).
3. Analysis and Conclusion
a. Dr. MC’s Findings Testimony
Appellant lodged a general challenge to the subject matter, basis, legal rel-
evance, and reliability of Dr. MC’s expert testimony. 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)(B). Among
Appellant’s contentions on appeal is that:
Without citing to Daubert, relying upon any of the Houser fac-
tors, or hearing the expert’s testimony, the military judge over-
ruled the objection and reasoned that the Government was per-
mitted “to present corroborative or perhaps other evidence that
would assist the factfinder in interpreting that testimony.”
Given that Appellant’s broad allegations of error on appeal differ from the
more limited objections lodged by counsel at trial, we must decide if Appellant
forfeited his complaint about new grounds for exclusion. “A party is required
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 pre-
served 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)).
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United States v. Webb, No. ACM 39904
We conclude Appellant’s specific objections at trial constitute forfeiture, if
not waiver, of his more comprehensive challenge on appeal that the military
judge failed to follow the Daubert or Houser framework that guides the admis-
sion of expert testimony in courts-martial. Appellant did not object on this ba-
sis; his objection was that expert testimony was not helpful to the factfinder or
admissible under Mil. R. Evid. 702. Testing for plain error and finding none,
we decline to grant relief. Dr. MC’s testimony, couched in general terms about
abusive relationships, was not obviously irrelevant or unreliable under the
Daubert or Houser framework and did not reach any ultimate questions
properly left for the military judge to decide.
Turning to Appellant’s specific objections on findings that were preserved
for review, Appellant argues that Dr. MC’s testimony was used to corroborate
and bolster TA’s credibility “because after TA ‘had clearly and directly testified
to the’ military judge regarding why she acted in the manner she did, Dr. MC
‘provided additional testimony on the same point.’” Appellant further explains
that the Government used Dr. MC’s testimony to “impermissibly bolster TA’s
credibility by filtering her testimony through a far more credible witness.”
However, in sexual assault cases (an allegation with which Appellant was also
charged), expert testimony about what might be considered counterintuitive
behavior of a victim has been allowed because it may assist factfinders in “dis-
abusing themselves of widely held misconceptions.” United States v. Flesher,
73 M.J. 303, 313 (C.A.A.F. 2014) (quoting Houser, 36 M.J. at 398) (internal
quotation marks and additional citations omitted). Here too, Dr. MC’s testi-
mony could assist the military judge in understanding TA’s actions related to
the offenses of sexual assault, aggravated assault, and assault consummated
by a battery, including why she did not immediately make a report to the po-
lice.
The military judge did not abuse his discretion in finding Dr. MC’s expert
testimony was helpful to the factfinder and we reject Appellant’s contention
that Dr. MC’s testimony was irrelevant because it would not help the trier of
fact. Mil. R. Evid. 702(d) was modified in 2004 based on an amendment to Fed-
eral Rule of Evidence (Fed. R. Evid.) 702, that was effective on 1 December
2000, making it identical to the Federal Rule. See Manual for Courts-Martial,
United States (2016 ed.), App. 22, at A22-59. The Advisory Committee’s note
to the 2000 amendment to Fed. R. Evid. 702 allows “an expert to educate the
factfinder about general principles, without ever attempting to apply these
27
United States v. Webb, No. ACM 39904
principles to the specific facts of the case.” Fed. R. Evid. 702 advisory commit-
tee’s notes to 2000 amendment. 15 The record shows that TA described an abu-
sive relationship for most of her time with Appellant. Dr. MC’s testimony
touched on several facts of consequence, including why victims of domestic vi-
olence either stay in, or return to, abusive relationships. He also outlined prin-
ciples that explain counterintuitive behavior. Thus, Dr. MC’s testimony was
permissible. The defense strategy at trial counted on the factfinder believing a
premise that was the opposite of Dr. MC’s expert opinion: that TA had her own
reasons for staying. Relying on this premise, Appellant took every opportunity
to challenge TA’s credibility and the truthfulness of her testimony, including
highlighting numerous false statements she made throughout this case. We
find that the probative value of the evidence outweighed the Mil. R. Evid. 403
considerations, and conclude the military judge did not abuse his discretion in
admitting Dr. MC’s expert testimony.
b. Dr. MC’s Sentencing Testimony
We also find the military judge did not abuse his discretion by allowing Dr.
MC to testify about PTSD. R.C.M. 1001(b)(4) allows trial counsel to present
aggravating evidence relating or resulting from the offenses of which an ac-
cused has been found guilty, which would include evidence of a social and psy-
chological impact. Although the record does not show that TA was diagnosed
with PTSD, given her testimony, Dr. MC saw behaviors in her that tracked
with PTSD, and explained those behaviors and how to treat them. Some of
these behaviors included “heightened anxiety,” “avoid[ing] situations that re-
mind [her] of the traumatic offense,” flashbacks, nightmares, and a change in
arousal (in that “people with PTSD are often more hypersensitive and jumpy
and nervous . . . than they used to be”). Dr. MC’s testimony on these symptoms
and behaviors, when coupled with TA’s testimony, had some relevance. Fur-
thermore, Dr. MC testimony was about the generalities of PTSD, as he recog-
nized that, professionally, he could not diagnose TA.
Even if the military judge abused his discretion in allowing Dr. MC to tes-
tify on this issue, we find no prejudice. After Dr. MC’s testimony, the military
judge, noting that TA had not been diagnosed with PTSD, stated, “the court
15 The note explains that the amended Rule:
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 notes to 2000 amendment.
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finds Dr. MC’s testimony to have some probative value, albeit not particularly
high.” Taking into consideration that this was a trial by military judge sitting
alone, Appellant has not shown prejudice and we do not find that this error
“substantially influenced the adjudged sentence.” See United States v. Barker,
77 M.J. 377, 384 (C.A.A.F. 2018) (quoting United States v. Sanders, 67 M.J.
344, 346 (C.A.A.F. 2009)). The testimony regarding PTSD added little to the
Government’s sentencing case in relation to the circumstances of the offenses
and the victim impact testimony of TA.
III. CONCLUSION
The findings and sentence as entered are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the find-
ings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
29