Petition for Writ of Certiorari — Daniel A. Bench, Petitioner v. United States

No. ____

IN THE

Supreme Court of the United States

__________

DANIEL A. BENCH,

Petitioner,

v.

UNITED STATES,

Respondent.

__________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

__________

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

__________

ALEXANDRA K. FLESZAR

Counsel of Record

HEATHER M. CAINE

Appellate Defense Counsel

Air Force Appellate Defense Division

1500 West Perimeter Road, Suite 1100

Joint Base Andrews, MD 20762

(240) 612-4770

alexandra.fleszar.1@us.af.mil

Counsel for Petitioner

(1a)

TABLE OF CONTENTS

United States v. Bench

United States Court of Appeals

for the Armed Forces, Opinion

(Aug. 8, 2022)

3a

United States v. Bench

United States Court of Appeals

for the Armed Forces, Order

(Nov. 30, 2021)

20a

United States v. Bench

United States Air Force

Court of Criminal Appeals, Opinion

(May 24, 2021)

22a

United States v. Bench

Trial Transcript

Testimony of MC

67a

United States v. Bench

Trial Transcript

Testimony of EC

71a

(2a)

This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

UNITED STATES

Appellee

v.

Daniel A. Bench, Master Sergeant

United States Air Force, Appellant

No. 21-0341

Crim. App. No. 39797

Argued March 1, 2022—Decided August 8, 2022

Military Judge: Charles G. Warren

For Appellant: Captain Alexandra K.

(argued); Mark C. Bruegger, Esq. (on brief).

Fleszar

For Appellee: Major John P. Patera (argued); Colonel

Naomi P. Dennis; Lieutenant Colonel Matthew J. Neil

and Mary Ellen Payne, Esq. (on brief).

Judge HARDY delivered the opinion of the Court, in

which Chief Judge OHLSON Judge SPARKS, Judge

MAGGS, and Senior Judge STUCKY joined.

(3a)

Judge HARDY delivered the opinion of the Court.

The Confrontation Clause of the Sixth Amendment

requires that “[i]n all criminal prosecutions, the

accused shall enjoy the right...to be confronted by the

witnesses against him.” U.S. Const. amend. VI. This

case presents the question whether Appellant’s right

to be confronted by a complaining witness was

violated when trial counsel misled Appellant’s son by

telling him that Appellant was not watching his son’s

remote live testimony. Because Appellant failed to

preserve this issue at trial, the Court must decide

whether any error was plain or obvious. We hold that

it was not.

The confrontation right is a procedural guarantee

that ensures that any testimony presented to a jury be

tested through “the crucible of cross-examination.”

Crawford v. Washington, 541 U.S. 36, 61 (2004). The

essential elements of the confrontation right require

that the accused have an opportunity to crossexamine the witness, that the witness take an oath to

tell the truth, and that the jury be able to observe the

witness’s demeanor. Maryland v. Craig, 497 U.S. 836,

851 (1990). Each of these elements was present when

Appellant’s son testified remotely during the courtmartial. Although the Court recognizes that trial

counsel’s misleading statements might have lessened

the pressure Appellant’s son felt to tell the truth, the

essential elements of Appellant’s confrontation right

were still vindicated. Accordingly, we cannot say that

it should have been clear or obvious to the military

judge that the admission of EC’s testimony would

(4a)

materially prejudice Appellant’s Sixth Amendment

rights. The decision of the United States Air Force

Court of Criminal Appeals (AFCCA) is affirmed.

I. Background

Based on his children’s allegations, including those

of his nine-year-old autistic son (EC), the Government

charged Appellant with four offenses committed

either against or in the presence of his children. The

charges included three specifications of lewd acts with

children in violation of Article 120b, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. §920b (Supp. IV

2013–2017), and one specification of indecent conduct

in violation of Article 134, UCMJ, 10 U.S.C. §934

(2012 & Supp. IV 2013–2017).

Prior to Appellant’s court-martial, the Government

requested that EC be permitted to testify remotely by

video teleconference from an area outside Appellant’s

presence. The Government argued that remote

testimony was necessary “to protect [EC’s]welfare

because testimony in a courtroom setting, in light of

him being autistic, will be particularly distressing,

confusing

and

potentially

embarrassing.”

Government Motion for Appropriate Relief: Remote

Testimony of Child Witnesses E.B. and B.B. at 1,

United States v. Bench, No. ACM 39797 (Apr.2, 2019)

(Appellate Exhibit VII). 1 The Government further

asserted that EC would “be traumatized without

1 At the time of Appellant’s court-martial, EC’s initials were EB.

Like the AFCCA below and both parties in their briefs, we refer

to EC by his current initials.

(5a)

remote testimony because of the physical and verbal

indications of his fear of [Appellant] and that

[Appellant] will find out he has told their ‘secret.’” Id.

After Appellant declined the military judge’s

invitation to object to the Government’s request, the

military judge permitted EC to testify remotely.

Government trial counsel (TC), defense counsel

(DC), and the special victim’s counsel (SVC) for EC

were present in the remote location during EC’s

testimony. Appellant remained in the courtroom,

along with other counsel, the military judge, the

panel, and the court reporter. Although a livestream

screen was visible to EC in the remote location, a piece

of paper had been placed over half the screen to block

EC’s view of the courtroom.

During EC’s testimony, he repeatedly asked trial

counsel questions about the remote testimony

procedure, including specific questions about who

could hear his testimony. Several of trial counsel’s

responses, although indisputably intended to ease

EC’s concerns and facilitate his testimony, were

misleading or false. For example, as soon as EC began

testifying, he became distracted by the paper on the

livestream screen. EC asked why half the screen was

covered, and trial counsel answered that it was to

“make sure [EC] would be able to answer [the]

questions, and not get distracted.” Trial counsel and

EC then engaged in the following exchange:

[EC:] Are there people in there?

(6a)

[TC:] No, not so many.

[EC:] What?

[TC:] Nope, you just have to worry about us

right here, okay? So you’ve got me, and [the

SVC], and [the DC]. And so we’re just—

[EC:] —But are they going to—but are there

going to be people—

[TC:] —No, just the three of us right here,

and we’re going to ask you some questions,

and then you’ll be all done and you can go—

go back outside, okay?

(Emphasis added.)

EC and trial counsel then engaged in an extended

colloquy meant to ensure that EC knew the difference

between the truth and a lie prior to EC taking the oath

to tell the truth. After EC established that he

understood the difference, EC became distracted and

again asked who could hear his testimony:

[EC:] —What—the court can hear us?

[TC:] All you’ve got is the three people right

here.

[EC:] But why is it—I thought there were

court [sic] to hear us.

(7a)

[TC:] Well, who you’ve got to hear you right

now—

[EC:] We’re just practicing?

[TC:] We’re talking through you, yeah. But

we can hear you. And we just need you

to. . . .

[EC:] But why aren’t we doing the court

thing?

[TC:] We are doing the court thing.

[EC:] We are?

[TC:] Yeah.

(Emphasis added.) EC continued to ask the trial

counsel questions about what was happening,

including the following ex-change specifically about

Appellant:

[EC:] Is [Appellant] going to be standing

right next to them?

[TC:] No.

[EC:] Where is he going to be standing?

[TC:] He’s not in there. He’s not there. All

you’ve got to do is answer the questions that

we have, okay?

(8a)

[EC:] Um-huh.

(Emphasis added.) Defense counsel raised no

objections to any of trial counsel’s statements to EC.

After trial counsel’s direct examination, defense

counsel had a full opportunity to cross-examine EC.

During the cross-examination, defense counsel

impeached EC’s testimony with inconsistent

statements EC had previously made to law

enforcement. Defense counsel made no attempt to

inform EC that Appellant was in the courtroom and

watching EC’s live testimony or otherwise correct any

of trial counsel’s misstatements.

A panel of officer members convicted Appellant,

contrary to his pleas, of two of the three specifications

of sexual abuse of a child in violation of Article 120b,

UCMJ, and the sole specification of indecent conduct

in violation of Article 134, UCMJ. The panel

sentenced Appellant to twelve years of confinement,

reduction to E-4, forfeiture of all pay and allowances,

and a dishonorable discharge. The convening

authority approved the sentence, and the AFCCA

affirmed the sentence and findings without

considering the issue presented because it was not

raised on appeal.

We granted review to decide:

Whether lying to a witness about

Appellant’s presence in the courtroom to

secure testimony materially prejudices

(9a)

Appellant’s Sixth Amendment right to

confrontation.

United States v. Bench, 82 M.J. 112 (C.A.A.F. 2021)

(order granting review).

II. Waiver

Before we reach the question presented, we first

address the Government’s threshold argument that

Appellant waived his Confrontation Clause claim.

“When an appellant does not raise an objection to the

admission of evidence at trial, [this Court] first must

determine whether the appellant waived or forfeited

the objection.” United States v. Jones, 78 M.J. 37,

44(C.A.A.F. 2018) (citing United States v. Sweeney, 70

M.J. 296, 303–04 (C.A.A.F. 2011)). Waiver usually

occurs when there is an “‘intentional relinquishment

or abandonment of a known right,’” United States v.

Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v.

Zerbst, 304 U.S. 458, 464 (1938)), but this Court has

also recognized that waiver can occur by operation of

law, Jones, 78 M.J. at 44 (citing United States v.

Hardy, 77 M.J. 438, 441–42 (C.A.A.F. 2018)). When an

appellant fails to raise a Confrontation Clause

objection at trial, this Court “consider[s] the particular

circumstances of [the] case to determine whether

there was waiver,” id. (citing United States v.

Harcrow, 66 M.J. 154, 158 (C.A.A.F. 2008)), but

“appl[ies] a presumption against finding a waiver of

constitutional rights.” Id. (citing Sweeney, 70 M.J. at

304).

(10a)

The Government argues both that Appellant

intentionally relinquished his Confrontation Clause

claim and that the claim was waived by operation of

law. With respect to the first assertion, we see nothing

in the record that suggests anything more than an

unintentional failure by Appellant to make a timely

assertion of his rights. The Government suggests that

Appellant wanted EC to testify so that the panel could

observe his erratic demeanor, and thus made an

intentional, strategic decision not to raise the

Confrontation Clause claim. No evidence supports

this assertion. Because the Government’s theory does

not come close to overcoming our presumption against

finding waiver of constitutional rights, we conclude

that Appellant did not intentionally abandon his

claim.

The Government more reasonably argues that

Appellant waived this issue by operation of law under

the plain language of Rule for Courts-Martial (R.C.M.)

905(e)(2016 ed.). That rule provides that such claims

“must be raised before the court-martial adjourned for

that case and, unless otherwise provided in [the

Manual for Courts-Martial, United States], failure to

do so shall constitute waiver.” R.C.M.905(e). We

acknowledge that the language of the rule would

appear to be dispositive on this point in the Government’s favor, but as this Court has recognized in the

past, there has long been disagreement in our own

precedent about whether the word “waive[d]” in

R.C.M.905(e)actually means “waived” (as defined by

the Supreme Court in Olano, 507 U.S. at 733), or

instead means “forfeited”(the failure to preserve an

(11a)

issue by timely objection). See Hardy, 77 M.J. at 441–

42 (noting the disagreement in this Court’s

precedents); id. at 445 (Ohlson, J., dissenting) (same).

Two of our more recent precedents lead us to conclude

that regardless how one interprets the word

“waive[d]” in R.C.M.905(e), that rule does not

extinguish a claim when there has been plain error.

First, in United States v. Maynard, 66 M.J. 242,

243–44 (C.A.A.F. 2008), the Court reviewed a case

where the appellant failed to raise any objection at his

court-martial to the allegedly erroneous admission of

aggravation evidence by the military judge. Expressly

citing R.C.M.905(e), the Court stated: “When the

defense fails to object to admission of specific evidence,

the issue is waived, absent plain error,” and then

stated and applied the traditional three-factor test for

plain error. Id. at 244 (emphasis added).

More recently, in Jones, 78 M.J. at 39–40, the Court

reviewed a case where the appellant failed to raise a

Confrontation Clause claim at trial and instead raised

it for the first time on appeal. After noting that, as a

threshold matter, the Court needed to determine

whether the claim was forfeited or waived, the Court

recognized that waiver could occur by operation of law

even in the absence of intentional relinquishment. Id.

at 44. Despite the existence of R.C.M.905(e), the Court

concluded: “We do not see any waiver by operation of

law here.” Id. After also finding no intentional

relinquishment of the appellant’s claim, the Court

determined that the claim had been forfeited and

applied plain error review. Id.

(12a)

These two cases do not necessarily resolve the

debate about the meaning of the word “waive[d]” in

R.C.M.905(e) with respect to all claims and all cases.

But we agree that in this case, R.C.M.905(e) does not

extinguish, by operation of law, Appellant’s ability to

argue for the first time on appeal that the military

judge committed plain or obvious error by admitting

EC’s testimony. Accordingly, we consider the merits of

Appellant’s Confrontation Clause claim.

III. Confrontation Clause

Appellant argues that his Sixth Amendment right to

be confronted by the witnesses testifying against him

was infringed when trial counsel misled EC by telling

him that Appellant was not watching his remotely

recorded testimony. Because Appellant failed to raise

this objection at trial and the objection was not waived

by operation of law, we test for plain error. Jones, 78

M.J. at 44. Plain error occurs where “(1) there is error,

(2) the error was plain or obvious, and (3) the error

results in material prejudice to a substantial right of

the accused.” United States v. Fletcher, 62 M.J. 175,

179 (C.A.A.F. 2005) (citing United States v. Rodriguez,

60 M.J. 87, 88 (C.A.A.F. 2004)).

The Sixth Amendment provides, in relevant part,

“[i]n all criminal prosecutions, the accused shall enjoy

the right . . . to be confronted by the witnesses against

him.” U.S. Const. amend. VI. “[T]he [Confrontation]

Clause’s ultimate goal is to ensure reliability of

evidence, but it is a procedural rather than a

substantive guarantee. It commands, not that evi-

(13a)

dence be reliable, but that reliability be assessed in a

particular manner: by testing in the crucible of crossexamination.” Crawford, 541 U.S. at 61. Although the

procedural requirements have shifted over time, the

Supreme Court has consistently held that “the

Confrontation Clause is generally satisfied when the

defense is given a full and fair opportunity to probe

and expose . . . infirmities [in a witness’s testimony]

through cross-examination.” Delaware v. Fensterer,

474 U.S. 15, 22 (1985). A full and fair opportunity to

cross-examine generally “guarantees the defendant a

face-to-face meeting with witnesses appearing before

the trier of fact,” Coy v. Iowa, 487 U.S. 1012, 1016

(1988) (citing Kentucky v. Stincer, 482 U.S. 730, 748

(1987) (Marshall, J., dissenting)), because, as the

Supreme Court reasoned, “[i]t is always more difficult

to tell a lie about a person to his face than behind his

back,” id. at 1019 (internal quotation marks omitted).

Two years after the Supreme Court decided Coy, it

carved out an exception to the general rule requiring

face-to-face confrontation. In Craig the Supreme

Court permitted a child witness to testify via closedcircuit television, without any face-to-face interaction

with the accused. 497 U.S. at 849–50. The Supreme

Court held that although there is a “preference for

face-to-face confrontation at trial [this preference]

must occasionally give way to considerations of public

policy and the necessities of the case.” Id. (internal

quotation marks omitted) (citations omitted). The

Supreme Court ultimately held that the accused’s

confrontation right was preserved even though the

child testified remotely because “all of the other

(14a)

elements of the confrontation right” including “oath,

cross-examination, and observation of the witness’[s]

demeanor” were present. Id. at 851.

Although this Court has recognized tension between

the Supreme Court’s decisions in Crawford and Craig,

see United States v. Pack, 65 M.J. 381, 384 (C.A.A.F.

2007) (“the Crawford opinion itself contains

statements that are difficult to reconcile with certain

other statements in the Craig opinion”), we have also

been unequivocal that we consider Craig to be good

law. As we have said before, “Craig continues to

control the questions of whether, when, and how,

remote testimony by a child witness in a criminal trial

is constitutional.” Id. at 385. We therefore reject

Appellant’s suggestion—raised half-heartedly in his

brief—that the military judge erred merely by

approving the Government’s unopposed request for

EC to testify remotely.

As stated in the question presented, the only issue

before us is whether Government trial counsel

prejudiced Appellant’s Confrontation Clause right by

telling EC that Appellant was not listening to EC’s

testimony. According to Appellant, the answer is yes

because “[a]t a minimum, the confrontation right

requires that a witness evince some minimal understanding that his or her testimony is being given

against the accused in an adversarial court

proceeding.” Brief for Appellant at 25, United States v.

Bench, No. 21-0341 (C.A.A.F. Dec. 30, 2021). Put

another way, Appellant argues that trial counsel’s

false statements unconstitutionally diminished EC’s

(15a)

truthfulness because “[i]t is always more difficult to

tell a lie about a person to his face than behind his

back.” Coy, 487 U.S. at 1019 (internal quotation marks

omitted).

To determine whether the military judge committed

plain error, we focus first on the second prong of the

test: whether the alleged error would have been plain

or obvious. Appellant cites no precedent from any

court holding that the Sixth Amendment

confrontation right requires a child testifying remotely to be aware that the defendant is viewing their

testimony. This appears to be a matter of first

impression not just in this Court but in any court. The

absence of any controlling precedent strongly

undermines Appellant’s argument that the military

judge committed plain or obvious error by admitting

EC’s testimony. See United States v. Lange, 862 F.3d

1290, 1296 (11th Cir. 2017) (“there can be no plain

error where there is no precedent from the Supreme

Court or this Court directly resolving it” (internal

quotation marks omitted) (citation omitted)); see also

United States v. Akbar, 74 M.J. 364, 398–99 (C.A.A.F.

2015) (explaining that absence of case law “is not

dispositive” for plain error analysis but “does tend to

show that” there was no “plainly or obviously” error).

Appellant’s argument is further undermined by the

fact that “all of the other elements of the confrontation

right” including “oath, cross-examination, and

observation of the witness’ demeanor” were satisfied.

Craig, 497 U.S. at 851. First, EC properly took an oath

to tell the truth before testifying in the remote

(16a)

proceeding. Military Rule of Evidence (M.R.E.) 603

requires that, “[b]efore testifying, a witness must give

an oath or affirmation to testify truthfully. It must be

in a form designed to impress that duty on the

witness’[s] conscience.” Per this Court’s precedent,

M.R.E. 603 “requires no special verbal formula, but

instead requires that the oath be meaningful to the

witness, including a child witness, and impress upon

the witness the duty to tell the truth.” United States

v. Washington, 63 M.J. 418, 424 (C.A.A.F. 2006).

Although EC had some difficulty keeping focused

during the initial colloquy with trial counsel, he

ultimately established that he understood the

difference between telling the truth and lying, and

subsequently gave a verbal acknowledgment that he

would tell the truth. The trial counsel then verified for

the record that EC gave an affirmative response and

defense counsel did not object. We are satisfied that

EC understood the seriousness of the matter and the

expectation that he tell the truth. Craig, 497 U.S. at

845–46 (citing California v. Green, 399 U.S. 149, 158

(1970)).

Second, EC was subject to unrestricted crossexamination by Appellant’s counsel, a fact that

Appellant concedes in his brief. Brief for Appellant at

43, Bench, No. 21-0341. (“Appellant does not dispute

that his counsel had the opportunity to question

[EC].”). Appellant “also acknowledges that some of

the infirmities in [EC’s] testimony were exposed

through . . . questioning, which can be an indicator

that the Confrontation Clause is satisfied.” Id. (citing

(17a)

Fensterer, 474 U.S. at 22). Despite these admissions,

Appellant argues that he was prejudiced by trial

counsel’s lie because EC’s testimony was unreliable.

We disagree. Appellant received the opportunity to

subject EC’s testimony to the “crucible of crossexamination,” Crawford, 541 U.S. at 61, which the

Supreme Court has called “the greatest legal engine

ever invented for the discovery of truth.” Craig, 497

U.S. at 845–46 (internal quotation marks omitted)

(citations omitted).

Finally, it is undisputed that the panel was able to

observe EC’s demeanor as he testified and assess his

credibility. Id. Appellant admits this but argues that

EC’s mistaken belief that Appellant was not watching

denied the panel the opportunity to observe one

critical thing—EC’s demeanor when actually

confronting Appellant. Brief for Appellant at 44,

Bench, No. 21-0341. We disagree that this clearly

prejudiced Appellant’s procedural confrontation right.

Appellant cites no precedent supporting his argument

that this one aspect of a witness’s demeanor is what

matters for Sixth Amendment purposes. We have no

reason not to conclude that Appellant’s confrontation

right was satisfied given that the panel was able to

“‘look at [EC], and judge by his demeanor upon the

stand and the manner in which he [gave] his

testimony whether he is worthy of belief.’” Green, 399

U.S. at 158 (quoting Mattox v. United States, 156 U.S.

237, 242–43 (1895)).

The Supreme Court, and this Court, have made

clear that remote testimony does not infringe on an

(18a)

accused’s confrontation right if it is necessary as a

matter of public policy. Craig, 497 U.S. at 849. The

Confrontation Clause protects a procedural right that

seeks reliability “by testing in the crucible of crossexamination.” Crawford, 541 U.S. at 61. That right is

satisfied when the individual testifying takes an oath

and is subject to cross-examination that is observed by

the panel. Craig, 497 U.S. at 851. Because all those

elements were present here, we cannot say that it

should have been plain or obvious to the military

judge that trial counsel’s misstatements would

prejudice Appellant’s right to confrontation. Because

Appellant cannot establish the second prong of the

plain error test, we need not consider the first or third

prongs.

IV. Judgment

Whether the Sixth Amendment is violated when a

counsel misleads a witness who is testifying remotely

about the accused’s presence is an open question with

no clear and obvious answer in the military justice

system. As such, Appellant cannot establish that the

military judge’s admission of EC’s testimony was

plainly erroneous. The decision of the United States

Air Force Court of Criminal Appeals is affirmed.

(19a)

United States Court of Appeals

for the Armed Forces

Washington, D.C.

United States,

Appellee

v.

Daniel A.

Bench,

USCA Dkt. No. 21-0341/AF

Crim. App. No. 39797

ORDER GRANTING REVIEW

Appellant

On consideration of the petition for grant of

review of the decision of the United States Air Force

Court of Criminal Appeals, it is, by the Court, this

30th day of November, 2021,

ORDERED:

That said petition is hereby granted on the

following issue:

WHETHER LYING TO A WITNESS ABOUT

APPELLANT’S

PRESENCE

IN

THE

COURTROOM TO SECURE TESTIMONY

MATERIALLY PREJUDICES APPELLANT’S

SIXTH

AMENDMENT

RIGHT

TO

CONFRONTATION.

Briefs will be filed under Rule 25.

(20a)

For the Court,

/s/ Malcolm H. Squires, Jr.

Acting Clerk of the Court

cc:

The Judge Advocate General of the Air Force

Appellate Defense Counsel (Fleszar)

Appellate Government Counsel (Payne)

(21a)

UNITED STATES AIR FORCE COURT

OF CRIMINAL APPEALS

No. ACM 39797

UNITED STATES

Appellee

v.

Daniel A. BENCH

Master Sergeant (E-7), U.S. Air Force, Appellant

Appeal from the United States Air Force Trial

Judiciary Decided 24 May 2020

Military Judge: Charles G. Warren.

Approved

sentence:

Dishonorable

discharge,

confinement for 12 years, forfeiture of all pay and

allowances, and reduction to E-4. Sentence adjudged

17 May 2019 by GCM convened at Whiteman Air

Force Base, Missouri.

For Appellant: Major Rodrigo M. Caruço, USAF;

Major Alexander A. Navarro, USAF; Joshua R.

(22a)

Traeger, Esquire.

For Appellee: Lieutenant Colonel Brian C. Mason,

USAF; Major Jessica L. Delaney, USAF; Mary Ellen

Payne, Esquire.

Before LEWIS, RAMÍREZ, and CADOTTE Appellate

Military Judges.

Judge RAMÍREZ delivered the opinion of the court, in

which Senior Judge LEWIS and Judge CADOTTE

joined.

This is an unpublished opinion and, as such,

does not serve as precedent under AFCCA

Rule of Practice and Procedure 30.4.

RAMÍREZ, Judge:

A general court-martial composed of officer

members convicted Appellant, contrary to his pleas, of

one charge and two specifications of sexual abuse of a

child, in violation of Article 120b, Uniform Code of

(23a)

Military Justice (UCMJ), 10 U.S.C. § 920b, 1 , 2 and one

charge and specification of indecent conduct in

violation of Article 134, UCMJ, 10 U.S.C. § 934. 3 The

members sentenced Appellant to a dishonorable

discharge, confinement for 12 years, forfeiture of all

pay and allowances, and reduction to the grade of E4. The convening authority approved the adjudged

sentence.

On appeal, Appellant raises five assignments of

error: (1) whether the military judge erred when he

admitted statements of a minor child to a therapist;

(2) whether Specification 3 of Charge I (alleging

sexual abuse of BC) is factually and legally sufficient;

(3) whether the record sufficiently demonstrates

compliance with Mil. R. Evid. 603 for one child

1 References to the Uniform Code of Military Justice (UCMJ),

Military Rules of Evidence, and Rules for Courts-Martial

(R.C.M.) are to the Manual for Courts-Martial, United States

(2016 ed.). We note that one of the two specifications alleged

sexual abuse of a child committed before the elements,

definitions, sample specifications, and maximum punishments

for Article 120b, UCMJ, offenses were promulgated by the

President in Executive Order 13,740 on 16 September 2016. See

81 Fed. Reg. 65175, 65229–246 (22 Sep. 2016). For this Article

120b offense that was committed before Executive Order 13,740

was promulgated, Specification 3 of Charge I, this opinion will

reference the Manual for Courts-Martial, United States, pt. IV, ¶

45b (2012 ed.) (2012 MCM).

2 Appellant was acquitted of one specification of sexual abuse of

a child.

3 Appellant was charged with committing indecent conduct under

the general article provisions of Article 134, UCMJ. See 2012

MCM, pt. IV, ¶ 60.

(24a)

witness, EC; (4) whether the Specification of Charge

II (alleging indecent conduct) is factually and legally

sufficient; and (5) whether the sentence is unduly

severe. As we rely on the same law and standard for

issues (2) and (4), we combine the issues into one

analysis. We also consider facially unreasonable

appellate delay as this opinion was released more

than 18 months after docketing.

Finding no error materially prejudicial to Appellant,

we affirm the findings and sentence.

I. BACKGROUND

Appellant enlisted in the United States Army in

January 1997, separated in 2001, then enlisted in the

Air Force the same year. In 2006, while assigned to

the 360th Recruiting Squadron in Utah, Appellant

married MC. 4 MC was assigned to Hill Air Force Base.

Appellant already had a daughter from a previous

relationship, GG. In 2010, MC gave birth to fraternal

twins, a girl and a boy, BC and EC. 5 Three years later,

MC and Appellant separated, then divorced in 2014.

At that point, they shared joint legal custody of the

twins, and the twins stayed with Appellant every

4 At the time of the offenses and Appellant’s trial, MC was an

enlisted member of the United States Air Force Reserve. This

opinion uses her initials as of the time of Appellant’s trial.

5 Appellant’s brief and the charge sheet refer to BC and EC as

BB and EB, respectively. However, at the time of their testimony,

their initials were BC and EC. As such, we refer to them as BC

and EC.

(25a)

other weekend and one night during the week. This

custody arrangement was contested over the year,

including when the allegations came to light. By the

time of the court-martial, however, Appellant had

signed over his parental rights to both BC and EC.

Shortly after Appellant’s divorce was finalized, he

started dating ML whom he met online, and after a

few weeks they agreed to meet in person for dinner at

a restaurant. ML rented a hotel room because she

lived about 130 miles away from the restaurant.

Appellant had his children BC, EC (four years old at

the time), and GG (ten years old at the time) with him.

ML also had her two children with her. After dinner

and swimming at the hotel’s pool, Appellant, ML, and

the five children, all under the age of 16 at the time,

spent the night together in ML’s one-bedroom hotel

room. According to Appellant’s trial testimony, he and

ML were in one bed, while four of the children slept in

the adjacent bed and one, BC, slept on the floor. At

some point during the night, Appellant and ML had

sex, while the children (BC, EC, and GG) were awake.

BC “woke up to hearing a really loud squeaky sound,”

while GG covered BC’s face and ears. After this

weekend, MC noticed that EC began acting strangely,

doing things like trying to stick corners of a blanket

into his bottom.

In April 2015, Appellant visited the twins for their

birthday. During this trip, Appellant stayed at MC’s

home with BC and EC while MC went out to dinner

with her friends. MC returned home and found

Appellant asleep in BC’s bed with BC. MC testified

(26a)

that Appellant being in BC’s bed was unusual and she

told him to leave. In the months following this visit,

BC began to suffer from nightmares. As a result of

this, MC took her daughter, BC, to see a therapist,

EM.

In 2017, Appellant again visited the twins for their

birthday. Appellant spent the weekend with them in

a temporary lodging room at Hill Air Force Base,

Utah. Appellant forced EC to touch Appellant’s penis.

Although EC was young, he was able to recall that it

happened in the bathroom after a shower, and was

able to describe Appellant’s penis. Following this visit,

EC began wetting the bed.

II. DISCUSSION

A. Admissibility of BC’s Statements to Her

Therapist Under Mil. R. Evid. Rule 803(4).

It appears that as Appellant’s court-martial neared,

it became apparent that BC may not be able to testify

fully for the Government. Being deprived of her

testimony, the Government sought to introduce BC’s

statements to her therapist, EM, as substantive

evidence under the medical-treatment exception to

the rule against hearsay. The Defense objected, but

the military judged ruled in the Government’s favor.

On appeal, Appellant argues that the military judge

erred when he admitted BC’s hearsay statements to

her therapist, EM, as substantive evidence. Appellant

claims that the military judge applied incorrect law

(27a)

and improperly applied the facts to the law.

Specifically, Appellant takes the position that “[e]ven

if this Court ignores the Military Judge’s use of an

incorrect legal principle, the facts do not support his

conclusions when applied to the correct legal

principles.”

The examples which Appellant provides include that

the military judge relied on a subjective expectation

by BC that EM was a therapist and that is not the

standard required by law; that the statements at issue

were made for a personal, not a medical purpose; that

there is no evidence that BC believed “truthfulness

meant treatment;” and that the hearsay statements

are the only substantive evidence against Appellant.

As outlined below, these arguments are not

persuasive.

1. Additional Background

In October 2017, MC took BC, who was seven years

old at the time, to see EM, a trauma therapist and

licensed social worker. This was in response to

nightmares and anxiety that BC had been

experiencing. At their initial meeting, the therapist

introduced herself to BC and explained confidentiality

to BC in a way that one “can only explain that to a

child,” in an effort to reinforce that it was a safe space

where BC could talk about anything she wanted to

and where the therapist and BC could work on her

issues. At this initial session, MC was also present

and affirmed that it was a safe space where BC could

tell the therapist anything and that the therapist was

(28a)

there to help BC in the treatment of her symptoms. At

their first session, BC told the therapist that she

wanted to “feel happy.” BC met privately with the

therapist during their subsequent sessions.

From October 2017 through May 2019, BC attended

appointments with the therapist approximately once

a week. Throughout the treatment period, the

therapist provided BC with various coping skills to

help BC mitigate her nightmares and anxiety, and BC

eventually disclosed facts of her sexual abuse during

treatment.

The military judge considered 40 pages of treatment

notes written by the therapist; telephonic testimony of

the therapist; a short summary of a recent

government interview of BC; and a statement

provided by MC to law enforcement before ruling on

the admissibility of BC’s statements to the therapist.

We describe the most pertinent statements that BC

made to the therapist that were available to the

military judge, most of which are in the treatment records.

On 1 March 2018, BC told the therapist that she

remembered the night when Appellant and his

girlfriend behaved sexually in front of her, EC, and

GG. BC said that she saw Appellant’s “butt-butt,” and

this made BC uncomfortable. BC also described a

night when Appellant climbed into bed with her, and

that he normally did not do this. The therapist asked

if anything happened after Appellant got into BC’s bed

and according to the therapist’s notes, BC “declined”

to answer. The therapist annotated that BC was being

(29a)

“more open” about her experiences with Appellant and

that they are “working on skills to help [BC] feel safe

and secure.”

At a later session, on 19 March 2018, BC disclosed

that after Appellant climbed into her bed with her, he

touched her (BC pointed to her vagina) “outside, not

inside” over the bedding covers. BC shared with her

therapist that she had pretended to be asleep and that

she crossed her legs very tightly during the encounter.

Additionally, BC shared with her therapist that

Appellant stopped after he had heard BC’s mother,

MC, return home.

BC disclosed further details in two subsequent

sessions about the incident where Appellant climbed

into her bed. On 22 March 2018, BC said that Appellant touched her chest under her shirt before touching

her vagina. On 10 July 2018, BC said she forgot to tell

her therapist a detail about the event where Appellant

got into bed with her. BC said, “[Appellant] used three

fingers to rub me on the vagina.” The therapist asked

BC how Appellant touched her, and BC “showed a

circular motion with three fingers in the air.” BC said

that thinking about the event made her sad and

nervous, and that she did not like to think about it.

The therapist annotated in her notes that BC was

“participating in an ongoing case against [Appellant]”

and that “[s]he’s feeling[ ] seen, heard, and validated”

and was “gaining mastery over skills.”

At trial, the Prosecution sought to admit testimony

from the therapist regarding these statements as an

(30a)

exception to the rule against hearsay for statements

made for medical treatment under Mil. R. Evid.

803(4). The Defense objected under Mil. R. Evid.

803(4). 6 Ultimately, the military judge concluded that

the Government had established that the Mil. R. Evid.

803(4) exception to hearsay applied.

As part of his ruling, the military judge found that

BC had an understanding that EM was a therapist,

and that BC described EM as “her friend who helps

her with [her] bad dreams.” The military judge

specifically considered whether that description of EM

as a “friend” eliminated BC’s understanding that EM

was a therapist, and found it did not. The military

judge made further findings, including: that BC had

been seeing the therapist from October 2017 up to the

time of the court-martial; that based upon the

treatment notes and the testimony, the therapist was

identified to BC as a social worker; that the therapist

explained confidentiality to BC during their first

visits; and that BC had “a subjective expectation” that

EM was a therapist.

As legal authority, the military judge relied inter

alia on Mil. R. Evid. 104(a), 304, and 803(4); United

States v. Cucuzzella, 66 M.J. 57 (C.A.A.F. 2008);

United States v. Gardinier, 65 M.J. 60 (C.A.A.F. 2007);

and United States v. Morgan, 40 M.J. 405 (C.M.A.

1994).

To the extent that Mil. R. Evid. 513, the psychotherapistpatient privilege, applied to the admissibility of these

statements, BC, through her special victims’ counsel, waived her

privilege.

6

(31a)

The military judge concluded that BC recognized

EM as a therapist and that BC’s description of her as

a friend, “on balance,” did not eliminate her

understanding that she was a therapist. To reach that

conclusion, the military judge equated BC describing

the therapist as her “friend” to someone calling a

teacher, a pastor, or a doctor a “friend.” The military

judge explained, “They can all be considered friendly

and still have that other role. The impetus of this test

is not whether the child considers the person to be a

friend, but whether the child understands that the

person is a professional acting in their professional

role.”

The military judge further found that the

statements BC made to the therapist were not

testimonial. The military judge considered the

following facts in reaching this conclusion: the

therapist was a mandatory reporter to the Department of Children and Family Services (DCFS) but

did not receive questions from DCFS to ask BC so the

therapist did not “proceed in an investigative

capacity;” the statements were not initiated for any

law enforcement purpose, but rather to talk through

how “Appellant’s actions” made her feel; BC’s statements about her abuse were not initiated by the

therapist but rather by BC herself; and BC first told

MC that her father had touched her but declined to

provide MC further details, instead telling her that

she wanted to talk to her therapist about it. The

military judge also found there was no evidence of suggestibility from MC or authority figures to compel BC

to make the statements.

(32a)

Finally, the military judge conducted a Mil. R. Evid.

403 balancing test and determined that the probative

value of the statements was not substantially

outweighed by the danger of unfair prejudice. He also

concluded that the circumstances surrounding how

BC came to see a therapist, and allegations that the

timing coincided with an on-going child-custody

dispute between Appellant and MC, went to the

weight of the evidence, not admissibility.

Although the military judge gave both sides an

opportunity to ask questions with regards to the

ruling, neither side did. During findings, the therapist

testified as a government witness in a substantially

consistent manner with her treatment notes described

above. After the therapist testified, neither party

requested the military judge reconsider his ruling

admitting her testimony.

2. Law

“We review a military judge’s decision to admit or

exclude evidence for an abuse of discretion.” United

States v. Erikson, 76 M.J. 231, 234 (C.A.A.F. 2017)

(citation omitted). “A military judge abuses his

discretion if his findings of fact are clearly erroneous

or his conclusions of law are incorrect.” Id. (citations

omitted). “Findings of fact are reviewed under a

clearly erroneous standard and conclusions of law are

reviewed de novo.” United States v. Ellerbrock, 70 M.J.

314, 317 (C.A.A.F. 2011) (citation omitted). The

“abuse of discretion standard is strict, calling for more

(33a)

than a mere difference of opinion. The challenged

action must be arbitrary, fanciful, clearly

unreasonable, or clearly erroneous.” Erikson, 76 M.J.

at 234 (internal quotation marks and citation

omitted).

Specifically as to Mil. R. Evid. 803(4), a “military

judge’s determination that a patient made a

statement for the purpose of medical diagnosis or

treatment out of an expectation of receiving medical

benefit is a question of fact that we review for clear

error.” United States v. Donaldson, 58 M.J. 477, 485

(C.A.A.F. 2003) (citation omitted).

Regardless of whether the declarant is available as

a witness, the rule allows for hearsay statements that

are made for, and are reasonably pertinent to, medical

diagnosis or treatment as long as the statements

“describe[ ] medical history, past or present symptoms

or sensations; their inception; or their general cause.”

Mil. R. Evid. 803(4).

There are two requirements that must be met for

statements to be admissible under Mil. R. Evid.

803(4): “first the statements must be made for the

purposes of medical diagnosis or treatment,” and

second, there must be “some expectation of receiving

a medical benefit for the diagnosis or treatment that

is being sought.” Donaldson, 68 M.J. at 485 (internal

quotation marks and citations omitted). “While both

requirements must be met, the critical question [in

this inquiry] is whether [the patient] had some

expectation of treatment when she talked to the

(34a)

caregivers.” Id. (alterations in original) (internal quotation marks and citation omitted). “The key factor” to

determine whether the statement at issue falls within

the exception is the “state of mind or motive” of the

patient and the “expectation or perception of the

patient that if he or she gives truthful information, it

will help him or her to be healed.” Id. (citations

omitted). The underlying presumption for the

exception to hearsay under Mil. R. Evid. 803(4) is that

the declarant has a “self-interested motivation to

speak the truth to a treating physician or an

individual in the mental health field in order to

receive proper care and the necessity of the statement

for a diagnosis or treatment.” United States v. Quigley,

35 M.J. 345, 347 (C.M.A. 1992) (citation omitted).

Appellate courts recognize “that a small child may

not be able to articulate that he or she expects some

benefit from treatment.” Donaldson, 58 M.J. at 485

(footnote, internal quotation marks, and citation

omitted). Therefore, “where a child is involved, it is

often important for their caretakers to explain to them

the importance of the treatment in terms that are

understandable to the child.” Id. (internal quotation

marks and citations omitted).

Where the medical purpose and benefit may not be

as apparent, Mil. R. Evid. 803(4) “should not be

applied in a rote or mechanical manner.” Cucuzzella,

66 M.J. at 60. Instead, the analysis depends on “the

identification of indicia that the elements and the

purposes of the exception are met.” Id. In applying the

rule to young children, “where the medical purpose

(35a)

behind a visit might well be apparent to an adult, we

have looked to see if the military judge has found

indicia that the child herself was cognizant of the

medical purpose of the visit.” Id. (citations omitted).

Counseling involving mental health can similarly

“raise complex legal and factual questions.” Id. This is

because, unlike traditional physical examination

settings, the patients “may have compound or

uncertain purposes for being present, may not be in a

position to appreciate the context in which they are

making the statements, or may have mixed intent in

making the statements in question.” Id.

3. Analysis

We find no abuse of discretion in admitting the

hearsay statements pursuant to Mil. R. Evid. 803(4).

As to the requirement of Mil. R. Evid. 803(4) that the

statements were made for the purposes of medical

diagnosis or treatment, we find that they were. MC

retained EM as a therapist for BC when BC was seven

years old and suffering from anxiety and nightmares.

At the first session, MC affirmed for BC that meeting

with the therapist was “a safe space,” that BC “could

tell [the therapist] anything,” and that the therapist

was there to “help” BC “in this treatment of her

symptoms.” BC’s statements about Appellant’s abuse

occurred in later sessions with the therapist who

provided BC help by discussing boundaries and

personal space and watching a consent video with BC

that was specifically made for children. BC really

(36a)

liked the consent video and watched it five times and

then went home and practiced consent with her

stuffed animals leading the therapist to conclude that

BC felt “very empowered.” The therapist provided BC

with other coping mechanisms which she used

through-out the course of the treatment. Additionally,

BC recognized the therapist as an individual who was

“helping her with [her] bad dreams.”

The military judge’s ruling does not find as fact that

each of BC’s statements were made for the purpose of

treatment. If he had, we would have analyzed whether

such a finding was clearly erroneous. See Ellerbrock,

70 M.J. at 317. Instead, we use our factfinding

authority under Article 66(c), UCMJ, 10 U.S.C. §

866(c), and conclude that each of BC’s statements

regarding the charged offenses were made for

treatment purposes. Each of these statements by BC

were made in a treatment session to EM, a licensed

social worker and trauma therapist. At her first

session, BC was provided information that EM was a

therapist in a manner that was understandable to BC.

We also note that BC’s disclosures of Appellant’s

sexual abuse led to specific treatment responses

including helping BC understand boundaries,

personal space, and consent. Additionally, we take

into account that on 16 March 2018, BC told MC that

Appellant had done something to her, but instead of

giving her details, BC told MC that she wanted to talk

to her therapist. Then three days later, BC disclosed

details of the abuse to her therapist. This reinforces

our determination that BC made these disclosures to

obtain help and treatment from her long-time

(37a)

therapist. We conclude there was ample evidence

before the military judge that BC’s hearsay

statements were made for treatment purposes.

With regards to the second requirement of Mil. R.

Evid. 803(4) that BC made the statements with some

expectation of receiving a medical benefit for the

medical diagnosis or treatment that is being sought,

we find the military judge did not abuse his discretion.

While there was no direct testimony from BC saying

those exact words, as a young child, we recognize that

she may not have been able to articulate that she

expected some benefit from treatment. This is why it

was important that the goal of the treatment was

explained to her in terms that are understandable to

that specific child. This was seen when the therapist

explained to BC concepts of confidentiality “in the way

that you can only explain that to a child” to “reinforce

that it was a safe space where she could talk about

anything she wanted to discuss, where we could work

on kind of some of the issues that were being

presented.” MC who was in the room during the first

visit with the therapist also “affirmed that it was a

safe space that [BC] could tell [the therapist] anything

and that [she] was there to help [BC] in this treatment

of her symptoms.”

Appellant takes the position that the child’s

subjective expectation that the therapist was, in fact,

a therapist is not the standard. Appellant claims that

the military judge’s reliance on this as a standard is

an abuse of discretion. Appellant’s position is not

supported by the law. The military judge was to look

(38a)

at the “state of mind or motive of the patient in giving

the information” to the therapist as a “key factor in

determining whether a particular statement is

embraced by the medical-treatment exception.”

Donaldson, 58 M.J. at 485.

Similarly, Appellant’s argument that the hearsay

statements in question were made for a personal, not

medical, purpose is unpersuasive. Appellant points to

instances where either BC’s therapist or MC would

tell BC that she was “brave” for disclosing information

about the abuse; that BC considered her therapist to

be an “amazing person;” that the therapist helped BC

“remember a lot of things that happened in the past;”

that the therapist helped BC when she told her things;

and the therapist aided BC with “field grounding

skills,” which are “tools to help detach from

overwhelming emotional distress” as examples of

these statements being made for personal reasons

instead of medical reasons. Appellant does not explain

how any of these examples are personal reasons to the

exclusion of therapeutic reasons. To the contrary, the

facts that Appellant points to actually indicate that

BC understood that the conversations with her

therapist were related to treatment. Additionally,

Appellant provides no law to support his position that

having personal reasons for seeking treatment

precludes having medical reasons for seeking

treatment, and we found none. Therefore, we reject

this argument.

Appellant next claims that “there is no evidence that

BC believed that truthfulness meant treatment.”

(39a)

Appellant continues that “although Trial Counsel and

the Court may have believed the evidence established

that BC knew she was speaking to a medical provider,

there is no evidence that she maintained an

expectation or perception that providing truthful

information to that provider would help her to be

treated or healed.” However, as addressed above, one

factor for the military judge to weigh in determining

whether a particular statement is embraced by the

medical-treatment exception is the “state of mind or

motive of the patient in giving the information to the

physician and the expectation or perception of the

patient that if he or she gives truthful in-formation, it

will help him or her to be healed.” Donaldson, 58 M.J.

at 485. Here, the therapist did address this issue as it

related to treating BC. Trial defense counsel asked the

therapist, “did you all ever talk about the importance

of truthfulness or what truth was, or what a lie was?”

The therapist explained,

Not necessarily. A big part of therapy is selfdetermination, even for children. And so

[BC] was largely in charge of being able to

tell me what she wanted to tell me, and not

tell me what she wanted to tell me -- or

didn’t want to tell me rather. And I was very

respectful of those boundaries.

Regardless, “the critical question in this inquiry is

whether the patient had some expectation of

treatment when she talked to the caregivers.” Id. The

military judge concluded that BC did have an

expectation of treatment and made the statements

with some expectation of receiving a therapeutic

(40a)

benefit. The military judge’s analysis of the second

prong and the state of mind of BC were detailed and

thorough. We observe no “rote or mechanical

application” of Mil. R. Evid. 803(4) in this case.

We find that the military judge properly applied the

correct legal principles for Mil. R. Evid. 803(4). We

also find that the application of the legal principles to

the facts, whether found by us or the military judge,

permitted BC’s statements to be admitted under Mil.

R. Evid. 803(4). Therefore, we find no error in

admitting the statements of BC to her therapist.

B. Legal and Factual Sufficiency

1. Additional Background

a. Indecent Conduct

ML testified that she and Appellant had sex while

the children were in the same hotel room but in a

different bed as her and Appellant. BC also testified

about this incident. She explained she woke up

because she heard “a really loud squeaky sound,” and

GG 7 covered her face and ears. Appellant testified

that he thought the children were asleep because the

children were “talking and chattering” and then it got

quiet. At some point after midnight, Appellant said

that he and ML talked about “being intimate” as long

as the children were asleep. Although the bedroom

light was off, the bathroom light was on. Appellant

7 GG did not testify at Appellant’s court-martial.

(41a)

claimed that he checked on the children before having

sex. Ultimately, Appellant admitted that he had sex

with ML in the same room as the children, and that

BC was a few inches away from him and ML, and GG

was a couple of feet away. Appellant denied that any

of the five children heard him and ML having sex.

MC observed Appellant’s daughter, GG, telling a

sheriff 8 that both she and her sister, BC, had been

present in a hotel room while Appellant had sex with

a woman in front of them. GG’s mother also told MC

about the hotel sex. When MC found out about the

hotel sex, she confronted Appellant as she felt it was

inappropriate. In September 2017, MC confronted

Appellant a second time about the hotel incident

because she wanted to know what happened in the

room as she did not know for sure what occurred.

Appellant testified that GG’s mother asked him, via

text or phone, whether he “had stayed the night with

another woman.” He further testified that MC “asked

the same question” of “whether or not [he] stayed the

weekend or the night with a woman” and at this point

he “came clean” and told MC that he “stayed with

[ML], and that [they] had sex.” Appellant explained

that he decided to come clean “[b]ecause it was the

right thing to do.”

8 In our review of the record, it does not appear the sheriff was

related to the investigation into this case.

(42a)

b. Sexual Abuse of a Child

BC testified at trial that she recalled a time when

Appellant was babysitting her, and during that

occasion Appellant “touched [her] in the wrong place.”

When asked where the wrong place was, she said, “up

here,” and the circuit trial counsel explained, “for the

record the witness took her right arm and put it up

around her shoulder.” BC explained that she was in

her bedroom, sleeping on her bed, when Appellant

touched her in the “wrong place.” She also denied

being touched in “any other wrong places.”

MC testified that in April of 2015, she arrived home

and found Appellant lying asleep on BC’s bed with BC.

MC stated she woke him up and asked Appellant to

leave. She also explained that she did not notice any

changes in BC’s behavior “directly after the incident.”

However, in the months afterwards, BC started

having nightmares. This led to MC taking BC to the

therapist in October 2017. In March 2018, BC told MC

that Appellant had done something to her but that she

wanted to discuss it with her therapist.

The therapist testified during findings that BC told

her that Appellant climbed into bed with her and that

he touched her vagina and her chest, over her

pajamas. BC also told her therapist that she had

covers over her and that she pretended to be asleep

while he did that to her. BC specifically told her

therapist that when Appellant touched her vagina, he

used three fingers and she showed her how he touched

her and motioned in a circular motion. She also told

(43a)

the therapist that Appellant only stopped when he

heard MC return home.

Appellant testified that he, in fact, was at MC’s

home that night babysitting BC and EC while MC was

out. He explained that MC texted or called him, telling

him that she was going to have dinner with some

friends, so he agreed to go over and “watch the kids.”

He took the children to pick up food, and they arrived

at MC’s house around 7:00 p.m. While he could not

remember what he did once they arrived home, he

testified that because their bedtime was “8:00 pm,” he

“imagined” that he probably read a story to them, or if

he did not have enough time, he would have probably

given them their baths, and would have gotten them

ready for bed. He also did not recall what time MC

arrived at home, but thought she sent him a text

message around “11:00 pm, 11:30 pm, or after

midnight” to let him know she would be home soon.

Appellant initially testified that he did not recall

lying in bed with BC, but agreed that he had done that

before, and that it was possible that he was in her bed

reading a bedtime story to her.

2. Law

We review issues of legal and factual sufficiency de

novo. Article 66(c), UCMJ; United States v. King, 78

M.J. 218, 221 (C.A.A.F. 2019). 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).

(44a)

The test for legal sufficiency of the evidence is

“whether, considering the evidence in the light most

favorable to the prosecution, a reasonable factfinder

could have found all the essential elements beyond a

reasonable doubt.” United States v. Turner, 25 M.J.

324, 324 (C.M.A. 1987) (citation omitted). “[I]n resolving questions of legal sufficiency, we are bound to

draw every reasonable inference from the evidence of

record in favor of the prosecution.” United States v.

Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citations

omitted.).

“The test for factual sufficiency is whether, after

weighing the evidence in the record of trial and

making allowances for not having personally observed

the witnesses, the court is convinced of the accused’s

guilt beyond a reasonable doubt.” United States v.

Reed, 54 M.J. 37, 41 (C.A.A.F. 2000) (internal quotation marks and citation omitted). “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.” United States v. Wheeler,

76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (alteration

in original) (internal quotation marks and citation

omitted), aff’d, 77 M.J. 289 (C.A.A.F. 2018).

Reasonable doubt “does not mean that the evidence

must be free from conflict.” Id. (citation omitted).

As it relates to service discrediting conduct, military

law does not require that the public know of the

(45a)

accused’s conduct. United States v. Phillips, 70 M.J.

161, 165 (C.A.A.F. 2011). The law which requires proof

of the “nature” of the conduct, does not require

testimony regarding views of “the public.” Id. at 166.

Instead, the factfinder has the responsibility of

evaluating the nature of the conduct. Id. “[P]roof of the

conduct itself may be sufficient for a rational trier of

fact to conclude beyond a reasonable doubt that, under

all the circumstances, it was of a nature to bring

discredit upon the armed forces.” Id. at 163.

Additionally, and pertaining to service discrediting

conduct, “a factfinder may permissibly conclude that

the same piece of evidence proves more than one

element of a charged crime, so long as this conclusion

is reached independently with respect to each

element.” United States v. Norman, 74 M.J. 144, 150

(C.A.A.F. 2015).

“An unconstitutional presumptive conclusion arises

when the military judge instructs members that they

must conclude that evidence of the charged conduct

also satisfies the terminal element.” Id. This type of

instruction

is

unconstitutional

because

the

Government no longer has to prove that element

which removes the burden of proof, undermines the

accused’s presumption of innocence, and invades “the

truth-finding task assigned solely to juries in criminal cases.” Id. (citations omitted).

(46a)

3. Analysis

a. Indecent Conduct

The Specification of Charge II alleged that

Appellant wrongfully committed indecent conduct by

engaging in sexual intercourse with ML in the

presence of children who had not attained the age of

16 years, and the conduct was of a nature to bring

discredit upon the armed forces. See 2012 MCM, pt.

IV, ¶ 60.b. The only element in contention here is the

terminal element: whether the evidence at trial was

legally sufficient to demonstrate that Appellant’s

conduct was of a nature to bring discredit upon the

armed forces.

As is relevant for the disposition of this issue, the

military judge accurately instructed the panel

members that:

“Service discrediting conduct” is conduct

which tends to harm the reputation of the

service or lower it in public esteem.

With respect to service discrediting, the law

recognizes that al-most any irregular or

improper act on the part of a service member

could be regarded as service discrediting in

some indirect or remote sense. However,

only those acts which would have a tendency to bring the service into disrepute, or

which tend to lower it in public esteem are

punishable under this Article.

(47a)

Not every act of indecent conduct

constitutes an offense under the UCMJ. The

government

must prove

beyond

a

reasonable doubt, either by direct evidence

or by inference that the accused’s conduct

was of a nature to bring discredit upon the

armed forces. In resolving this issue, you

should consider all of the facts and

circumstances, to include: where the

conduct occurred; who may have known of

the conduct; and, the effect that the conduct

may have had upon the morale or efficiency

of a military unit.

During closing argument trial counsel argued

specifically as to this element of the offense:

If someone from the public knew that the

accused had had sex mere feet away from

young children, that would lower the service in the public esteem. When people

found out [MC], [GG’s] mother, they were

upset. They were upset. They thought it offensive. They thought it inappropriate. That

is evidence that that conduct lowers the

reputation of the service in the public

esteem. If you even think about it even in

the context of an adult. If an adult had been

asleep in the bed next to them, and woke up

the next day to find out that people had had

sex in the bed a few feet away, that would

have been offensive. Here, you have even

(48a)

further. You have young children. And so

you have evidence of that element.

Appellant argues that the Government provided no

evidence on the terminal element beyond the conduct

itself to persuade the factfinder and no evidence that

any child who heard the sex was upset by it. Appellant

claims that doing this led to the Government to argue

that the nature of the conduct made the offense, per

se, service discrediting. Therefore, Appellant

concludes, there was insufficient evidence that the sex

in front of the children would be an act which harmed

the reputation of the service or lowered it in public

esteem.

First, based on the record, we find no

unconstitutional presumptive conclusion as the

military judge did not instruct the members that they

must conclude that evidence of the charged conduct

also satisfies the terminal element. Because of this

finding, we further find that the instruction did not

relieve the Government of its burden of proof, it did

not subvert the presumption of innocence accorded

Appellant, and it did not invade the truth-finding task

assigned solely to the court members. See Norman, 74

M.J. at 150. Instead, we find that the members were

appropriately instructed on the elements of the

offense and on the Government’s burden of

establishing each of those elements beyond a

reasonable doubt.

While Appellant contests only the legal and factual

sufficiency of the terminal element, we reviewed the

(49a)

evidence in the record of trial and find the

Government proved beyond a reasonable doubt that

Appellant engaged in sexual intercourse in the

presence of children. Therefore, the first question we

ask is: whether proof of Appellant’s conduct of having

sex with a woman he met in person for the first time

that day, with five children in the same room, with one

just inches away, is sufficient for a rational trier of fact

to conclude beyond a reasonable doubt that, under all

the circumstances, it was of a nature to bring discredit

upon the armed forces. Second, we must be convinced

the Government proved this element beyond a

reasonable doubt in our fresh, impartial look at the

evidence.

Although public awareness of the conduct to

establish the tendency to bring the service into

disrepute or lower it in public esteem is not a

requirement, we find that three adults were made

aware of the conduct: MC, GG’s mother, and a sheriff.

Additionally, Appellant’s argument, that no evidence

exists that any child who heard the sex was upset by

it, is also unsupported by the record. During the

incident GG had to cover BC’s face and ears. Then,

shortly after the incident, EC began acting strangely,

doing things like trying to stick corners of a blanket

into his “bum.” Because of this, we conclude that there

was public awareness of this conduct and it is

reasonable that the court members could have used

this evidence of public awareness in finding that the

element was met and that the Government met its

burden.

(50a)

Based on the evidence before us, and while

considering the evidence in the light most favorable to

the Prosecution, a reasonable factfinder could have

determined each of the elements of the offense,

including the service discrediting element, were

proven beyond a reasonable doubt. See Turner, 25

M.J. at 324. Additionally, based on the same evidence,

and after weighing the evidence in the record of trial

and making allowances for not having personally

observed the witnesses, and after taking 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 the service

discrediting element beyond a reasonable doubt, we

are convinced of Appellant’s guilt beyond a reasonable

doubt. See Reed, 54 M.J. at 41; Wheeler, 76 M.J. at

568.

b. Sexual Abuse of a Child

Specification 3 of Charge I alleged that Appellant,

on a single occasion, committed a lewd act upon BC, a

child who had not attained the age of 16 years, by

touching, either directly or through the clothing the

genitalia and chest of BC, with an intent to gratify his

sexual desire. See 2012 MCM, pt. IV, ¶¶ 45b.a.(c);

45b.a.(h)(1), (4), (5)(A).

Appellant argues that the only evidence of his guilt

is the hearsay statements of BC to her therapist; that

those statements are not trustworthy as BC made the

statements “for a personal purpose without

(51a)

subjectively believing that her truthfulness in making

the statements was important, all in the midst of a

custody dispute between her parents;” and that BC

not only failed to reiterate the allegation at trial when

under oath, but “flatly denied the allegation.” Finally,

Appellant concludes that these “hearsay statements of

a child complainant who denied the allegation under

oath at trial are not sufficient to sustain [Appellant]’s

guilt as to Specification 3 of Charge I.”

We disagree with Appellant that his conviction rests

solely on hearsay statements admitted as substantive

evidence; those statements were supported with other

testimony. A reasonable factfinder could rely on

hearsay, coupled with corroborating evidence

presented at trial to find the government has met its

burden. See United States v. Ureta, 41 M.J. 571, 580

(A.F. Ct. Crim. App. 1994), aff’d, 44 M.J. 290 (C.A.A.F.

1996).

Appellant simply claims that BC’s statements to her

therapist are not trustworthy, then argues that we

should not rely on them as sufficient evidence against

him. However, as noted above, we are satisfied as to

the trustworthiness of the statements, finding no

abuse of discretion in their admission and use as

substantive

evidence

of

Appellant’s

guilt.

Nonetheless, BC’s statements to her therapist are not

the only statements of that night and we do not

analyze them in a vacuum. Her statements are

corroborated by Appellant himself who testified that

he was at her home and that he was taking care of BC.

Although Appellant only testified that it was

(52a)

“possible” that he was in bed with her, this was

corroborated by MC’s testimony that Appellant was,

in fact, in bed with BC when she arrived home. Her

therapist’s testimony was additional evidence from

BC as to what her father did, and did not do to her. As

each one of these witnesses corroborated a different

portion of BC’s recollection of events, we find it, and

the complained-of hearsay credible. Additionally,

Appellant’s request to discount testimony simply

because it occurred during a dissolution of marriage

would be to do so without any reliance on law.

We carefully considered that BC’s trial testimony

did not include that Appellant touched her anywhere

close to her vagina. However, a reasonable fact-finder

could have determined that BC’s statements to her

therapist, while not under oath, proved this essential

element of the offense. A reasonable fact-finder could

have disbelieved the portion of BC’s testimony that

denied other wrongful touching by Appellant.

See United States v. Snipes, 18 M.J. 172, 175 (C.M.A.

1984). After considering the testimony of BC, MC,

BC’s therapist, and Appellant, in the light most

favorable to the Prosecution, a reasonable fact-finder

could have found all the essential elements beyond a

reasonable doubt. See Turner, 25 M.J. at 324.

Additionally, based on the same evidence, and after

weighing the evidence in the record of trial and

making allowances for not having personally observed

the witnesses, and after taking 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

(53a)

evidence constitutes proof of each required element

beyond a reasonable doubt, we are convinced of

Appellant’s guilt beyond a reasonable doubt. See Reed,

54 M.J. at 41; Wheeler, 76 M.J. at 568.

C. Mil. R. Evid. 603

1. Additional Background

The other fraternal twin, EC, was nine years old

when he testified. MC testified that at the age of two,

EC was diagnosed with autism. This impacted his

speech, and early on it also impacted his motor skills.

When he would become overstimulated, he would

“stim.” MC explained that “stim” means “when an

autistic person is processing, or overstimulated, they

tend to do repetitive movements, such as, flap their

arms.” She further explained that “in [EC]’s case he

likes to run back and forth, repeatedly.” When

Appellant testified, he explained that although EC

has autism, “he’s made great strides to be able to

overcome those things. Right now the only thing that

he has is a speech issue.”

Ultimately, EC testified remotely at Appellant’s

court-martial. At the beginning of the testimony, EC

gave his full name, explained that he used to have

Appellant’s last name but that changed as MC was no

longer Appellant’s wife. His conduct throughout the

testimony was consistent with MC’s description of

EC’s autistic behaviors. He had difficulty

concentrating on the questions he was asked and

sometimes he had to be asked questions several times

(54a)

before he provided a responsive answer. Additionally,

he was initially distracted by an object on the table,

was turning and rolling around in the chair, and

walked back and forth at the end of the table.

Nonetheless, EC was able to testify and testify fully.

He correctly answered “nine” when asked how old he

was, he gave the correct date and that it was the last

day of the month. Trial counsel asked EC about the

color of EC's shirt, and EC replied, “Hawaii.” When

asked if his shirt was yellow, EC correctly said,

“Nope.” When trial counsel specifically asked, “If I

said that the shirt that you’re wearing right now was

a yellow shirt would that be true? Is your shirt

yellow?” EC answered, “No, my shirt is not yellow.”

Trial counsel then followed up with “If I said that the

shirt that you’re wearing right now was a Hawaii

shirt,” EC answered, “True.”

Trial counsel then asked, “So we talked a minute ago

about your shirt, and about telling us stuff that’s true.

Will you promise that when we ask you the questions

today you’ll only tell us stuff that's true?” EC’s

response was, “Um-huh,” to which trial counsel stated,

“Okay. And that’s an affirmative response from the

witness.” Trial defense counsel did not object, and did

not request clarification or to voir dire EC on his

ability to answer truthfully. At the end of EC’s

testimony,

EC

spontaneously

remarked,

“[E]verything I say is true.”

(55a)

2. Law

“Before testifying, a witness must give an oath or

affirmation to testify truthfully. It must be in a form

designed to impress that duty on the witness’s

conscience.” Mil. R. Evid. 603.

Mil. R. Evid. 603 “establishes no specific colloquy to

be used in carrying out” an oath or affirmation to

testify truthfully. United States v. Washington, 63

M.J. 418, 424 (C.A.A.F. 2006) (citation omitted). Any

process that will “awaken the witness’s conscience”

will suffice. Id. (citation omitted). This “rule is

designed to afford the flexibility required in dealing

with . . . children and that [a]ffirmation is simply a

solemn undertaking to tell the truth.” Id. (alterations

in original) (citation omitted). “[Mil. R. Evid.] 603

requires no special verbal formula, but instead

requires that the oath be meaningful to the witness,

including a child witness, and impress upon the

witness the duty to tell the truth.” Id. (citations

omitted). Further, “[Mil. R. Evid.] 603 is written to

permit . . . children and individuals with emotional

difficulties to satisfy the basic criterion of affirming

their duty to tell the truth.” United States v. Morgan,

31 M.J. 43, 47 (C.M.A. 1990) (citation omitted). When

the colloquy between the child and trial counsel

sufficiently demonstrates that the witness knew the

difference between truth and a lie, and that the child

intended to tell the truth, Mil. R. Evid. 603 will be

satisfied. See id.

(56a)

When counsel does not object to an alleged error

under Mil. R. Evid. 603, the issue is forfeited, and we

review for plain error. See United States v. Gladue, 67

M.J. 311, 313 (C.A.A.F. 2009). “Under our plain error

analysis, Appellant must show that there was error,

the error was plain or obvious, and that the error

materially prejudiced his substantial rights.”

Washington, 63 M.J. at 424 (citation omitted).

3. Analysis

Appellant claims that plain error exists to the

material prejudice of his substantial rights, in that the

oath administered to EC neither confirmed the child’s

understanding of the difference between a truth and a

lie nor impressed upon EC the duty to tell the truth.

Appellant specifically points to each opportunity in

which EC could have answered in an adult-like

fashion of “yes/no” or “truth/lie,” but instead chose

non-responsive answers. Appellant then attacks EC’s

ability to determine the difference between a truth

and a lie. However, it is clear from this record that EC

did not answer in such a linear fashion. Instead, trial

counsel asked questions that would demonstrate EC’s

ability to distinguish between veracity and falsity in

his own manner. Trial counsel accomplished this

through the use of EC’s shirt style and color. When

asked if his shirt was yellow he answered with “nope”

and when asked again if it would be true to say he was

wearing a yellow shirt, EC answered, “No, my shirt is

not yellow.” That satisfied the falsity prong. As to

truthfulness, trial counsel stayed with the shirt theme

and asked, “If I said that the shirt that you’re wearing

(57a)

right now was a Hawaii shirt;” and EC answered,

“True.” Appellant attacks this statement as

interrupting trial counsel. Although EC may have

answered quickly, there is nothing in law or fact that

disqualifies the answer.

Next Appellant argues that plain error exists

because the oath administered to EC never affirmed

his understanding of the importance of truth telling at

trial as evidenced by EC responding “um-huh” when

trial counsel asked him to promise to tell the truth.

However, trial counsel, in front of trial defense counsel

and the military judge, explained, “[T]hat’s an

affirmative response from the witness.” Trial defense

counsel did not object to trial counsel’s

characterization of EC’s response.

We do not find error which was plain or obvious.

However, even if we were to assume this was error to

accept “um-huh” as an affirmative response,

Appellant does not convince us that the error

materially prejudiced his substantial rights. While

Appellant claims that the error implicates his Sixth

Amendment right to meaningfully confront the

witnesses against him, he also concedes that his trial

defense counsel had the opportunity to cross-examine

EC and did so.

We also note that while at the end of EC’s testimony,

he explained, “everything I say is true,” the rule

contemplates this coming prior to the testimony.

Nonetheless, our superior court did not find prejudice

when this portion occurred subsequent to the

testimony. See Washington, 63 M.J. at 424.

(58a)

Therefore, we find that even if it was error which

was plain or obvious to accept “um-huh” as a response

to a promise to testify truthfully, we find no prejudice.

D. Whether Appellant’s Sentence is

Inappropriately Severe

1. Law

We

review

sentence

appropriateness

de

novo. United States v. Lane, 64 M.J. 1, 2 (C.A.A.F.

2006). We “may affirm only such findings of guilty and

the sentence or such part or amount of the sentence,

as [we] find[ ] correct in law and fact and determine[

], on the basis of the entire record, should be

approved.” Article 66(c), UCMJ. “We assess sentence

appropriateness by considering the particular

appellant, the nature and seriousness of the offenses,

the appellant’s record of service, and all matters

contained in the record of trial.” United States v.

Fields, 74 M.J. 619, 625 (A.F. Ct. Crim. App.

2015) (citations omitted). While we have significant

“discretion in determining whether a particular

sentence is appropriate, we are not authorized to

engage in exercises of clemency.” Id. (citations

omitted).

“The power to review a case for sentence

appropriateness, including relative uniformity, is

vested in the Courts of Criminal Appeals.” United

States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999). The

law does not require that we engage in sentence

comparison with specific cases “except in those rare

(59a)

instances in which sentence appropriateness can be

fairly determined only by reference to disparate

sentences

adjudged

in

closely

related

cases.” Id. (citations omitted). Additionally, “an

appellant bears the burden of demonstrating that any

cited cases are ‘closely related’ to his or her case and

that the sentences are ‘highly disparate.’ If the

appellant meets that burden, . . . then the Government

must show that there is a rational basis for the

disparity.” Id.

When arguing sentence disparity and asking us to

compare his sentence with the sentences of others,

Appellant bears the burden of demonstrating those

other cases are “closely related” to his, and if so, that

the sentences are “highly disparate.” See United

States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999). Cases

are “closely related” when, for example, they include

“coactors

involved

in

a

common

crime,

servicemembers involved in a common or parallel

scheme, or some other direct nexus between the

servicemembers whose sentences are sought to be

compared.” Id. If an appellant carries that burden,

then the Government must show a rational basis for

the sentence differences. Id.

Additionally, during our Article 66(c), UCMJ, review

of sentence appropriateness, we may, but are not

required to, consider cases that are not “closely

related” to Appellant’s. See United States v. Wacha, 55

M.J. 266, 267 (C.A.A.F. 2001); Lacy, 50 M.J. at 288.

(60a)

2. Analysis

Appellant argues that the “confinement is unduly

severe, particularly in comparison to sentences

received in closely related cases involving nonpenetrative offenses.” He also argues that his sentence

is unduly severe because he “stands convicted of just

three non-penetrative acts, each of which occurred

briefly and on just one occasion.” We disagree as to

both arguments.

The maximum punishment in this case, based on the

verdict, was 45 years of confinement, a dishonorable

discharge, forfeitures of all pay and allowances, and

reduction to the grade of E-1. Appellant was sentenced

to 12 years of confinement, a dishonorable discharge,

forfeiture of all pay and allowances, and reduction to

the grade of E-4.

At the time of Appellant's conviction, he had been in

the military for approximately twenty-two years, and

had completed two combat deployments to Iraq.

MC, who was appointed as BC and EC’s

representative under Article 6b, UCMJ, 10 U.S.C.

§ 806b, delivered an unsworn statement under R.C.M.

1001A. MC explained to the members that BC goes to

bed each night terrified that her nightmares will

become reality; that she cannot sleep in her own room

without her 12-year-old step-brother camped out on

her floor; that she cannot have a sleepover with her

sister without her half-sister sleeping on the floor in

front of a closed door; and that she has anxiety leaving

school because she worries Appellant will kidnap her.

(61a)

Members also learned that EC suffers from

unnecessary worry and anxiety based on Appellant’s

conduct. Specifically, the members heard that EC has

experienced anxiety over the possibility that he will

die and not go to heaven or ever see his “papa” (MC’s

father) again, because Appellant told him that if he

told anyone what happened, that this would be the

result. The members also learned that simply driving

past a Ford Explorer makes EC scared because he

thinks it is Appellant in the vehicle.

While Appellant asserts his sentence is unduly

severe in comparison to closely related cases, he has

not cited to any particular case for our consideration.

Moreover, while we may consider the sentences in

other cases even if they are not closely related to

Appellant's, we decline to do so. “The appropriateness

of a sentence generally should be determined without

reference or comparison to sentences in other

cases.” United States v. LeBlanc, 74 M.J. 650, 659

(A.F. Ct. Crim. App. 2015) (en banc) (citing United

States v. Ballard, 20 M.J. 282, 283 (C.M.A. 1985)).

Here, we find no reason to deviate from the general

rule set out in LeBlanc.

As to his second argument, we have considered this

particular appellant, the nature and seriousness of

the offenses, Appellant’s record of service including

his combat service, and all matters contained in the

record of trial. In doing so, we find that his service

record, while noteworthy, pales in comparison to the

long-lasting emotional and psychological harm he

caused his biological children, BC and EC. We find

Appellant’s sentence is not inappropriately severe.

(62a)

E. Timeliness of Appellate Review

This case was docketed with this court on 24 October

2019. Appellant requested and was granted four

extensions of time prior to filing his assignments of

error on 22 April 2020. The Government filed its

answer on 18 May 2020. Neither at the time of filing

his appeal nor during the pendency of his appeal did

Appellant file a demand for speedy appellate review.

The delay in rendering this decision after 24 April

2021 is presumptively unreasonable. However, we

determine there has been no violation of Appellant’s

due process right to a speedy appellate review.

“We review de novo claims that an appellant has

been denied the due process right to a speedy posttrial review and appeal.” United States v. Moreno, 63

M.J. 129, 135 (C.A.A.F. 2006) (citations omitted).

In Moreno, the United States Court of Appeals for the

Armed Forces (CAAF) established a presumption of

facially unreasonable delay when a Court of Criminal

Appeals does not render a decision within 18 months

of docketing. Id. at 142. Where there is such a delay,

we examine the four factors set forth in Barker v.

Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d

101 (1972): “(1) the length of the delay; (2) the reasons

for the delay; (3) the appellant’s assertion of his right

to a timely review and appeal; and (4) prejudice [to the

appellant].” Moreno, 63 M.J. at 135 (citations

omitted). “No single factor is required for finding a due

process violation and the absence of a given factor will

not prevent such a finding.” Id. at 136 (citing Barker,

407 U.S. at 533).

(63a)

Concerning prejudice, the CAAF identified three

types of interests for prompt appeals: (1) prevention of

oppressive incarceration; (2) minimizing anxiety and

concern; and (3) limitation of the possibility of

impairment of the appellant’s ability to present a

defense at a rehearing. Moreno, 63 M.J. at 13839 (citations omitted). In this case, we find no

oppressive incarceration nor impairment of the

defense at a rehearing because Appellant has not

prevailed in his appeal. See Id. at 140. As for anxiety

and concern, the CAAF has explained “the

appropriate test for the military justice system is to

require an appellant to show particularized anxiety or

concern that is distinguishable from the normal

anxiety experienced by prisoners awaiting an

appellate decision.” Id. Appellant has articulated no

such particularized anxiety in this case, and we

discern none.

There are several factors explaining this delay.

First, we note the record of trial is not insubstantial,

including over 720 pages of transcript and significant

appellate exhibits for review. Second, Appellant took

approximately half a year to file his assignments of

error after requesting the enlargements of time.

Third, Appellant asserted four errors, the careful

consideration of which has resulted in a lengthy

opinion from the court. In the face of these issues, we

do not find egregious delay here, especially in light of

the fact much of the delay was at Appellant’s behest

and the amount of delay by which the

Moreno standard was exceeded to issue this opinion is

measured in days, not months.

(64a)

Where, as here when Appellant has not shown

prejudice from the delay, there is no due process

violation unless the delay is so egregious as to

“adversely affect the public's perception of the fairness

and integrity of the military justice system.” United

States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006). We

do not find such egregious delays here. Appellant has

neither demanded speedy appellate review nor

asserted that he is entitled to relief for appellate

delay. Accordingly, we do not find the delay so

egregious as to adversely affect the perceived fairness

and integrity of the military justice system. See id.

Recognizing our authority under Article 66(c),

UCMJ, we have also considered whether relief for

excessive post-trial delay is appropriate even in the

absence of a due process violation. See United States

v. Tardif, 57 M.J. 219, 225 (C.A.A.F. 2002). After

considering the factors enumerated in United States

v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015),

aff'd, 75 M.J. 264 (C.A.A.F. 2016), we conclude it is

not.

III. CONCLUSION

The approved findings and sentence are correct in

law and fact, and no error materially prejudicial to the

substantial rights of Appellant occurred. Articles

59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).

Accordingly, the findings and the sentence

are AFFIRMED.

(65a)

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court

(66a)

SENIOR MASTER SERGEANT [MC]

United States Air Force Reserves, called as a

witness by the government, was sworn and

testified as follows:

DIRECT EXAMINATION

By Trial Counsel:

Q. Senior [MC], would use please state your full name?

A. [MC].

Q. And how do you spell your last?

A. [C].

Q. And are you currently in the Air Force Reserves?

A. I am.

Q. What is your rank and duty title?

A. Senior Master Sergeant, Superintendent, 419th

Force Support Squadron.

Q. Have you ever served on active duty?

A. I have.

Q. How long did you serve on active duty?

A. 11 years.

Q. So all in all, how long have you been in the Air

Force?

A. Just shy of 20 years.

Q. And so, since transitioning into the reserves, do you

have a civilian career?

(67a)

A. I do.

Q. And what is that job?

A. I am an Air Reserve Technician, and I am a Human

Resources Supervisor.

Q. Okay. And where do you work at?

A. The 419th Force Support Squadron.

Q. What base is that at?

A. Hill Air Force Base.

Q. Is that in Utah?

A. It is.

Q. How long have you lived in Utah?

A. About 13 years.

Q. Are you married now?

A. I am.

Q. Whom are you married to?

A. [SJ].

Q. And how long have you and Mr. [SJ] been married?

A. Since August 11th of 2018.

Q. We’re here today to talk about [EC] and [BC]. Who

are they?

A. My daughter and my son.

Q. How old are [EC] and [BC]?

A. Nine.

Q. What are their birthdays?

(68a)

A. [ ].

Q. Who was born first?

A. [BC].

Q. Do either [EC] or [BC] have any medical issues?

A. [EC] is Autistic.

Q. When was he diagnosed?

A. Around age two.

Q. Has his autism impacted his behavior?

A. It has.

Q. In what ways?

A. is in a specialized classroom in school. He tends to

stim sometimes when he’s overstimulated; it’s

impacted his speech. Early on it impacted his motor

skills.

Q. You mentioned stim, what is that? What do you

mean by “stim”?

A. “Stim” is when an autistic person is processing, or

overstimulated, they tend to do repetitive movements,

such as, flap their arms, or in ’s case, he likes to run

back and forth, repeatedly.

Q. What type of treatments does get in school?

A. In school he’s in a specialized classroom that is

geared towards sort of monitoring his behavior, being

able to deal with any behavior challenges. He also gets

speech therapy.

Q. Has learned any techniques that help him with his

autism?

(69a)

A. Some techniques, like, the school teaches them

mindful breathing.

Q. What is that, “mindful breathing”?

A. “Mindful breathing” is sort of a self-regulation to

help him settle down, so in other words taking deep

breaths, focusing, closing his eyes. He does this to -when he is close to having an autistic meltdown.

Q. Does he do it on his own or do you have to remind

him to do that?

A. Sometimes we have to remind him; sometimes he’ll

do it on his own.

EC

EC

EC

EC

EC BC

T

CT

C

...

(70a)

MR. [EC]

Civilian, called as a witness

government, and testified as follows:

by

the

DIRECT EXAMINATION

By Circuit Trial Counsel:

Q. So let me start with this. Can you tell us your

name?

A. Hum?

Q. Can you tell us your name?

A. [EC].

Q. [EC].

A. That’s my whole entire -- except I don’t say my -- I

don’t want to say my last name.

Q. You don’t want to say your last name?

A. [Negative response.]

Q. Okay. Is [C] your last name?

A. [Witness playing with an object on the table.]

Q. Here, I’ll hang on to that.

A. Hum?

Q. Here, I’ll put that over there. [Placed object out of

reach of WIT.]

So is [C] your last name now?

A. [Affirmative response.]

Q. Okay.

(71a)

A. Bench used to be Dan’s last name.

Q. Did Bench used to be your last name too?

A. Yep, but mom didn’t want it to be Bench anymore,

because it’s -- they -- because Dan is not her wife

anymore.

Q. Okay.

A. Because it used to be Bench and [C] family, but now

it is [J] and [C].

Q. Okay?

A. That means, [CJ, TJ], and dad is a [J], and me and

[BC] and mom, and my grandma, and my Papa was -was [C].

Q. Okay. So let me ask you this --?

A. You know -- you know my Papa, he died.

Q. Did he?

A. He died before even -- before -- before -- before Dan

was not mom’s wife anymore.

Q. Okay.

A. Before -- he died before -- before mom met dad.

Q. I see. So let me ask you a question.

A. He died when I was still -- he died when I was only

four years old.

Q. When you were four?

A. When I was only four, he died.

Q. Okay. How old are you now?

A. He died in April 1st, when -- when I was four.

(72a)

Q. Okay?

A. That’s when he died.

Q. How old are you right now?

A. Hum?

Q. How old are you today?

A. Hum?

Q. How old are you right now?

A. Nine.

Q. Nine. When is your birthday?

A. [ ]. It’s already May, it passed it.

Q. It did pass it, okay. Let me ask you a question -A. [ ], the last day of [ ].

Q. It is.

A. But I celebrated on the day before.

Q. I see. So what -- let me ask you this, what color is

the shirt that you have on today?

A. Hum?

Q. What color is your shirt that you are wearing?

A. Hawaii.

Q. It’s Hawaii? Doesn’t have flowers on it?

A. [BC] has the -- has the dress.

Q. [BC] has a dress?

A. But it’s pink with a bunch of flowers on it too.

(73a)

Q. Sure. Okay. If I told you that you were wearing a

dress what would you say?

A. What?

Q. If I told you that you had a dress on, what would

you say?

A. That would be horrible.

Q. That would be horrible?

A. Boys cannot wear dresses.

Q. Okay.

A. That’s the law.

Q. If I told you that your shirt was yellow, what would

you say?

A. I don’t like yellow -Q. You don’t like yellow?

A. -- shirts. I don’t like yellow shirts.

Q. Is your shirt yellow?

A. Hum?

Q. Is your shirt yellow?

A. Nope.

Q. Okay. So if I said your shirt was yellow would that

be true?

A. Hum?

Q. If I told you that the shirt you had on right now was

yellow, would that be true?

A. Hum.

(74a)

Q. Yeah? Or would that be wrong?

A. Hum.

Q. If I said that the shirt that you’re wearing right now

was a yellow shirt would that be true? Is your shirt

yellow?

A. No, my shirt is not yellow.

Q. Your shirt is not yellow? Okay.

A. It never -- a Hawaii shirt is never yellow.

Q. Okay. So if I said that your shirt was a Hawaii

shirt, is that true?

A. Hum?

Q. If I said that the shirt that you’re wearing right now

was a Hawaii shirt -A. -- True.

Q. Is that true? Okay. That’s true. So when we ask you

some questions, I need you to make sure that what you

tell us is -A. -- What -- the court can hear us?

Q. All you’ve got is the three people right here.

A. But why is it -- I thought there were court to hear

us.

Q. Well, who you’ve got to hear you right now -A. -- We’re just practicing?

Q. We’re talking through you, yeah. But we can hear

you. And we just need you to --?

A. -- But why aren’t we doing the court thing?

(75a)

Q. We are doing the court thing.

A. We are?

Q. Yeah.

A. I’m going to go back out in the room. You guys are

going to take that off. [WIT referring to piece of paper

blocking the remote sites view of the courtroom.]

Q. No, we are going to leave that there, and were just

going to ask you a few more questions, and then you

can go back out in that room, okay?

A. Hum.

Q. So let me ask you this, when we talk today I need

you to make sure that when you answer our questions

you tell us only stuff that’s true, okay?

A. What about the court thing? Is it today?

Q. Um-huh. It’s today.

A. Did mom just do it?

Q. She did before, but now we’re going to ask you

questions. Okay?

A. [No response.]

Q. So let me ask you that can you promise that when

we ask you questions today the answers that you will

give us our true?

A. [No response.]

Q. Do you promise to do that?

A. Why won’t you guys -- why do -- the court people

watch me?

Q. There’s people on the camera.

(76a)

A. What?

Q. There’s people watching on the camera, but it’s just

us in this room. So can you -- let me ask -A. Why don’t we need that open?

Q. Why not?

A. Um-huh?

Q. Just because they don’t need to look at us, and we

don’t need to look at them. So let me ask you that -A. -- We need to look at them?

Q. Nope. You just need to look at me, and Jeremy, and

answer our questions, okay?

A. Why couldn’t they look at me?

Q. They can.

A. Then why aren’t they going to look at me right now?

Q. They are. They are looking at you right now. And

that’s why we’re going to ask you some questions,

okay?

A. Some people in there?

Q. Um-huh. So we had talked a minute ago about your

shirt.

A. What?

Q. We talked a second ago about your shirt, and stuff

that’s true. So can you promise me that when you

answer our questions today you’ll tell us stuff that’s -only stuff that’s true?

A. Can I go out of the room?

(77a)

Q. Not yet. We’re going to ask you a few more

questions.

A. Right now?

Q. From here. So can you -- can you -A. -- Why can’t I do the questions from there?

Q. Maybe later. But right now we’ve got to ask

questions from right here -- in here right now, okay?

A. Is Dan going to be standing right next to them?

Q. No.

A. Where is he going to be standing?

Q. He’s not in there. He’s not there. All you’ve got to

do is answer the questions that we have, okay?

A. Um-huh.

Q. So we talked a minute ago about your shirt, and

about telling us stuff that’s true. Will you promise that

when we ask you the questions today you’ll only tell

us stuff that’s true?

A. Um-huh.

Q. Okay.

CTC: And that’s an affirmative response from the

witness.

A. Mom is afraid that some -- some people will just

believe Dan.

Q. Okay. Well, all you have to do is tell us stuff that’s

true, okay?

A. I don’t want Dan finding out, because I think he will

get angry.

(78a)

Q. Yeah. Why do you think he will get angry?

A. Because if he finds out that mom is not being his

wife anymore, then he’s going to be very, very angry.

Q. What are you afraid of Dan finding out about?

A. That every time a husband did not have a wife

anymore, it gets very angry.

Q. Yeah.

A. Yeah.

Q. Are you afraid of Dan finding out something you’re

going to say?

A. Yes.

Q. What are you afraid of Dan finding out that you’re

going to say?

A. There’s some stuff that is private.

Q. Okay.

A. It’s about the apartment at Lake Shield.

Q. Okay.

CTC: And for the record -A. A boy’s part.

Q. -- Right here. [WIT gesturing to his lap.] It’s not -it’s not good. Something bad happened about that to -.

CTC: And when the witness pointed, sir, he was

pointing to his -- penis area.

A. -- at Fire -- at Fire Lane Hotel.

Q. Okay. What was bad that happened at the hotel?

(79a)

A. Hum?

Q. What was bad that happened at the hotel?

A. I do not want to tell you, other -- otherwise people

might say that’s gross.

Q. Well, that’s okay. We’re okay. You can tell us, and

you can tell me and Jeremy, and Ms. April. We won’t

think it’s gross. Can you tell us -A. -- Dan did -- made me touch his penis.

Q. Did he? Did you do it?

A. When I just got out of the shower.

Q. Okay. Did you touch his penis when he asked you

to?

A. That happened when I was only -- when I was only

five, right after Papa died.

Q. Okay. And did you touch it?

A. Hum?

Q. Did you touch Dan’s penis?

A. He grabbed my hand and made me touch it.

Q. Okay. What happened when you touched his penis?

A. Hum?

Q. What did Dan do when you touched his penis?

A. We just played with it, by doing this [WIT gesturing

in repetitive motion rolling his wrist back-and-forth

on the table causing a tapping noise.] back and forth.

Q. And for -A. -- Dan did this.

(80a)

CTC: And for the record, the witness put his hand in

a fist and kind of rolled it back-and-forth against the

table.

A. That’s why -- that’s why I don’t like touching other

people’s penises.

Q. Okay.

A. Because you know, Layton Elementary kids knew

about it. So they decided to do it to me too.

Q. Okay.

A. Everyone in Layton Elementary in Crestview are

doing it to me. And other people. In not my class, but

just other classes who knew about it.

Q. Okay. So let’s talk more about that time at that

hotel when Dan had you touch his penis. What did -A. -- That’s why I want people to stop knowing about

it. I don’t want anybody in that -- in the -- in Layton

Elementary in Crestview to stop.

Q. Okay. Well -A. -- Because you know Crestview Elementary keep

me safe, because those -- every time those students do

-- do -- do that to another student -Q. -- Um-huh.

A. -- They get dis -- they’ve got to go to another school.

Q. Well, I prom -A. -- They have to either not go to Layton Elementary,

otherwise they will do it. The one in -- one of the rules

at Layton Elementary, in Crestview, no pantsing or,

like, or grabbing others’ private parts.

(81a)

Q. Okay. Well, I promise Jeremy -A. -- Or touching them.

Q. -- Jeremy, and Ms. April and I won’t tell anybody

else what you us.

A We need to stop that.

Q. Yes, that’s true.

A. Because those students will not stop until, unless - unless Dan stops. Because if Dan stops they stop.

You know why? They can -- they always see Dan,

because they even travel to Missouri a lot.

...

(82a)