Petition for Writ of Certiorari — James P. Baumgartner, Petitioner v. United States

APPENDIX

TABLE OF CONTENTS

Baumgartner

C.A.A.F. Order Denying Review (June 20, 2025) .... 1a

Air Force Court of Criminal Appeals Decision

(Feb. 18, 2025) ................................................ 2a

Hagen

C.A.A.F. Order Denying Review (Oct. 6, 2025) ..... 55a

Air Force Court of Criminal Appeals Decision

(May 28, 2025) .............................................. 56a

1a

United States Court of Appeals

for the Armed Forces

Washington, D.C.

United States,

Appellee

USCA Dkt. No. 25-0135/AF

Crim.App. No. 40413

v.

ORDER DENYING PETITION

James P.

Baumgartner,

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 20th

day of June, 2025,

ORDERED:

That the petition is hereby denied.

For the Court,

/s/

cc:

Malcolm H. Squires, Jr.

Clerk of the Court

The Judge Advocate General of the Air Force

Appellate Defense Counsel (Castanien)

Appellate Government Counsel (Payne)

2a

UNITED STATES AIR FORCE COURT OF

CRIMINAL APPEALS

________________________

No. ACM 40413

________________________

UNITED STATES

Appellee

v.

James P. BAUMGARTNER

Technical Sergeant (E-6), U.S. Air Force, Appellant

________________________

Appeal from the United States Air Force Trial

Judiciary

Decided 18 February 2025

________________________

Military Judge: Mark F. Rosenow.

Sentence: Sentence adjudged 29 September 2022 by

GCM convened at Schriever Space Force Base,

Colorado. Sentence entered by military judge on 4

November 2022: Dishonorable discharge, confinement

for 3 years, reduction to E-1, and a reprimand.

For Appellant: Major Kasey W. Hawkins, USAF;

Captain Samantha M. Castanien, USAF; Frank J.

Spinner, Esquire.

For Appellee: Colonel Zachary T. Eytalis, USAF;

Lieutenant Colonel J. Peter Ferrell, USAF; Major

Olivia B. Hoff, USAF; Mary Ellen Payne, Esquire.

3a

Before JOHNSON, GRUEN, and WARREN, Appellate

Military Judges.

Judge WARREN delivered the opinion of the court, in

which Chief Judge JOHNSON and Judge GRUEN

joined.

________________________

This is an unpublished opinion and, as such,

does not serve as precedent under AFCCA Rule

of Practice and Procedure 30.4.

________________________

WARREN, Judge:

A general court-martial composed of officer

members found Appellant guilty, contrary to his

pleas, of two specifications of sexual abuse of a child

in violation of Article 120b, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 920b, and three

specifications of assault consummated by a battery

upon a child under the age of 16 in violation of Article

128, UCMJ, 10 U.S.C. § 928.1 All allegations against

Appellant pertained to his treatment of AB, his

teenage daughter.

While Appellant was convicted of all five

specifications at trial (Specifications 1 and 2 of Charge

I, and Specifications 1–3 of Charge II), after findings,

the specification alleging battery of AB by holding her

hands while lifting her shirt (Specification 1 of Charge

Unless otherwise indicated, all references to the punitive

articles are to the Manual for Courts-Martial, United States

(2012 ed.) (2012 MCM). All other references to the UCMJ, Rules

for Courts-Martial and the Military Rules of Evidence (Mil. R.

Evid.) are to the Manual for Courts-Martial, United States (2019

ed.) (2019 MCM).

1

4a

II) was conditionally dismissed. This conditional

dismissal was predicated upon the specification of

child sexual abuse of AB via a lewd act involving

touching her breast (Specification 1 of Charge I)

“surviving the completion of appellate review.” In

addition, after findings, two remaining specifications

of battery upon a child under the age of 16 in violation

of Article 128, UCMJ (Specifications 2 and 3 of Charge

II), were consolidated into a single specification

stating: “In that [Appellant] . . . did, at or near Santa

Maria, California, on or about 27 August 2017,

unlawfully grab by the neck with his hand and

unlawfully strike on her face with his hand, [AB], a

child under the age of 16 years.”

The court-martial sentenced Appellant to a

dishonorable discharge, confinement for three years,

reduction to the grade of E-1, and a reprimand. The

convening authority took no action on the findings and

approved the sentence in its entirety.

Appellant raises six issues on appeal, which we

reordered: (1) whether the convening authority

impermissibly considered the race and gender of

potential court members when detailing members to

the court-martial; (2) whether the findings of guilty as

to sexual abuse of a child related to the touching of the

child’s breasts are legally and factually insufficient;

(3) whether the findings of guilty as to sexual abuse of

a child related to the touching of the child’s vulva are

legally and factually insufficient; (4) whether the

findings of guilty as to assault consummated by a

battery upon a child under the age of 16 years for

grabbing the child by the neck are legally and

factually insufficient; (5) whether the findings of

guilty as to assault consummated by a battery upon a

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child under the age of 16 years for slapping the child

across the face are legally and factually insufficient in

light of the parental discipline defense; and (6)

whether trial defense counsel were ineffective in their

redirect examination of a defense witness, Technical

Sergeant (TSgt) JG. In addition, although not raised

as an assignment of error, we consider an additional

issue: (7) whether Appellant is entitled to relief for

unreasonable appellate delay.

We have carefully considered the assignments of

error and find no error that materially prejudiced

Appellant’s substantial rights. See Articles 59(a) and

66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly,

we affirm the findings and sentence. See Article 59(b),

UCMJ, 10 U.S.C. § 859(b).

I.

BACKGROUND

The court-martial convicted Appellant of three

discrete categories of misconduct against his

biological daughter, AB, set forth in five charged

specifications, including: (1) committing a lewd act

against AB by directly touching her breasts with his

hand with an intent to abuse her between on or about

January 2014 and on or about January 2018; (2)

committing a lewd act against AB by touching her

vulva with his foot with an intent to abuse her on

divers occasions between on or about January 2015

and January 2018; and (3) battery against AB by

grabbing her neck with his hand and slapping her face

with his hand on or about 27 August 2017.

Additional background pertinent to Appellant’s

specific assignments of error is included within the

discussion of each of those respective issues below.

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II. DISCUSSION

A. Court Member Selection

1. Additional Background

Two different convening orders pertain to this

case. The first, Special Order A-7 dated 21 January

2022, issued prior to arraignment, listed 15 officer and

6 enlisted members. The second, Special Order A-14,

dated 23 September 2022, issued prior to voir dire,

contained all officer members. Appellant submitted a

notice of intended pleas and forum in the interval

between the two convening orders indicating he

intended to be tried by a panel of officer members.

Included with the record of trial are the lists of

potential court-martial members that were provided

to the convening authority for consideration and

selection pertaining to each order. These documents

included each individual’s name, rank, unit of

assignment, duty title, whether the individual has

prior experience serving on a court-martial or

administrative board, and, in the case of officers,

whether they have experience as commanders.

Neither the gender nor the race of the individuals was

expressly indicated on these documents. The

convening authority indicated the members he

selected to serve on the court martial by writing his

initials next to the individuals’ name.

Appellant did not object to the convening

authority’s court member selection process prior to his

appeal before this court.

On appeal, Appellant moved to attach panel

member data sheets (styled “Space Operations

Command Court Member Questionnaire”) containing

personal data regarding the prospective court

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members which had been provided to the convening

authority as part of the selection process. These

documents contained considerably more personal and

career information about each individual, including

an indication of their gender and race. The

Government objected to the attachment of these

documents on the grounds that these documents were

outside the “entire record” this court may consider in

our review pursuant to Article 66, UCMJ, 10 U.S.C. §

866, and not “necessary to resolve an issue raised by

the record,” citing United States v. Jessie, 79 M.J. 437

(C.A.A.F. 2020). This court granted the motion to

attach but deferred its consideration of the

applicability of Jessie until it conducts its Article 66,

UCMJ, review. We now consider the attached

members’ documents.

Upon review of the attachments we note, of the 15

officers selected in the first convening order, based

upon the ordinary gender alignments of their names,

10 were men and 5 were women. In approving the

second convening order, the convening authority

excused all 6 enlisted members and 10 officer

members from the first convening order, including 10

men and 6 women, and replaced them with 11 officer

members. Of those replacement members 3 were

female and 8 were male. One of the replacement

female officers was also African American. Of the 29

member data sheets submitted to the convening

authority for review in promulgating the second

convening order, 9 were for female officers. In

excusing officer members and selecting new ones in

conjunction with the second convening order, the

convening authority excused officers in the grades of

O-2 to O-6 and replaced them with officers within the

grades of O-3 to O-5.

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2. Law

Court-martial composition issues not raised at

trial are forfeited and reviewed on appeal for plain

error. United States v. King, 83 M.J. 115, 120–21

(C.A.A.F. 2023), cert. denied, 144 S. Ct. 190 (2023).

Under the plain error standard of review, the

“[a]ppellant bears the burden of establishing: (1) there

is error; (2) the error is clear or obvious; and (3) the

error materially prejudiced a substantial right.”

United States v. Robinson, 77 M.J. 294, 299 (C.A.A.F.

2018) (citation omitted). In undertaking a plain error

analysis, we “consider whether the error is obvious at

the time of appeal, not whether it was obvious at the

time of the court-martial.” United States v. Harcrow,

66 M.J. 154, 159 (C.A.A.F. 2008).

“When convening a court-martial, the convening

authority shall detail as members thereof such

members of the armed forces as, in his opinion, are

best qualified for the duty by reason of age, education,

training, experience, length of service, and judicial

temperament.” Article 25(e)(2), UCMJ, 10 U.S.C. §

825(e)(2).

In United States v. Crawford, our superior court’s

predecessor, the United States Court of Military

Appeals, held that the intentional selection of African

American servicemembers to serve on courts-martial

in order to ensure fair representation of the

community was consistent with constitutional

guarantees of equal protection. 35 C.M.R. 3, 13

(C.M.A. 1964); see also United States v. Smith, 27 M.J.

242, 249 (C.M.A. 1988) (“[A] commander is free to

require representativeness in his court-martial panels

and to insist that no important segment of the

military community—such as blacks, Hispanics, or

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women—be excluded from service on court-martial

panels.”).

In Batson v. Kentucky, the United States Supreme

Court held a criminal defendant “ha[s] the right to be

tried by a jury whose members are selected pursuant

to non-discriminatory criteria,” and in particular “the

Equal Protection Clause[2] forbids the prosecutor to

challenge potential jurors solely on account of their

race” through the exercise of peremptory challenges.

476 U.S. 79, 85–86, 89 (1986) (citation omitted).

Following Batson, in J.E.B. v. Ala. ex rel. T.B., the

Supreme Court held that “gender—like race—is an

unconstitutional proxy for juror competence and

impartiality.” 511 U.S. 127, 128 (1994); see also United

States v. Patterson, No. ACM 40426, 2024 CCA LEXIS

399, at *20–21 (A.F. Ct. Crim. App. 27 Sep. 2024)

(unpub. op.) (holding that “J.E.B. essentially put

gender on the same constitutional footing as race”),

rev. granted on different grounds, No. 25-0073/AF, __

M.J. __, 2025 CAAF LEXIS 16, *1 (C.A.A.F. 6 Jan.

2025).

In United States v. Jeter, the United States Court

of Appeals for the Armed Forces (CAAF) overruled

Crawford in light of Batson, holding that “[i]t is

impermissible to exclude or intentionally include

prospective members based on their race.” 84 M.J. 68,

73 (C.A.A.F. 2023). As the CAAF explained,

“whenever an accused makes a prima facie showing

that race played a role in the panel selection process

at his court-martial, a presumption will arise that the

panel was not properly constituted,” which the

Government may then attempt to rebut. Id. at 70. In

Jeter, “trial defense counsel challenged the makeup of

2 U.S. CONST. amend. XIV.

10a

the panel, citing a ‘systematic exclusion of members

based on race and gender.’ The military judge noted

that ‘[i]t appears that [the panel] is all white

men’ . . . .” Id. at 71 (alterations in original). On

appeal, the CAAF found the appellant had made a

“prima facie showing that gives rise to a presumption

that race was allowed to enter the selection process.”

Id. at 74. In support of this conclusion, the CAAF cited

“racial identifiers” that were included in court

member questionnaires provided to the convening

authority, as well as “other evidence before the [C]ourt

of [C]riminal [A]ppeals [(CCA)],” and “the command’s

understandable belief that the Crawford case . . . was

still good law.” Id. Among this other evidence before

the CCA was information that “two African American

members on the original convening order were

subsequently removed pursuant to the first

amendment to the convening order; and three other

courts-martial with African American accuseds were

convened by this convening authority before all-white

panel members.” Id. In addition, the CCA obtained

declarations from the convening authority and staff

judge advocate, but “for all intents and purposes those

affidavits simply reflected that they could not recall

how the venire panel was chosen.” Id. Under these

circumstances, the CAAF found an “unrebutted

inference that Appellant’s constitutional right to

equal protection under the law was violated when the

acting convening authority presumptively used a raceconscious selection process for panel members.” Id.

3. Analysis

Relying on Jeter, Appellant contends his courtmartial panel was improperly constituted because the

convening authority inappropriately considered race

and gender in selecting members. Appellant cites the

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fact that, as in Jeter, racial and gender identifiers for

prospective court members were provided to the

convening authority. He also notes Jeter had not yet

been decided, and, at the time, applicable precedent

did not prohibit the consideration of race or gender in

order to ensure a court-martial panel that was

representative of the military community. Appellant

additionally cites “one for one” replacement of three

female panel members (one of whom was also an

African American panel member) between the first

and second convening order as prima facie evidence

that the convening authority impermissibly

considered race and gender in selecting those

members.

In response, the Government first contends

Appellant’s argument cannot succeed because it relies

on the court member data sheets attached on appeal

which were not part of the “entire record” originally

docketed with the court, and are not necessary to

resolve an issue raised by the record but “not fully

resolvable by the materials in the record.” See Jessie,

79 M.J. at 442. The Government notes Jeter did “not

address whether gender was an appropriate

consideration in member selection;” and even if the

same prohibition applies to gender as to race, the

Government denies the selection of 3 females from a

list that included 9 females and 20 males establishes

a prima facie claim of gender discrimination.

Pointedly, the Government contends that the raw

statistical probability of the convening authority

selecting females for the second convening order

venire was 31% (9 of 29 questionnaires)—asserting “if

the convening order blindly picked 10 officers, he was

likely to select [3] female officers.”

12a

Because Appellant did not object to the convening

authority’s selection of court members at trial, we

review for plain error. See King, 83 M.J. at 120–21.

For the reasons stated below, we conclude Appellant

has failed to demonstrate plain error.

As an initial matter, although the Government is

correct that Jeter specifically addressed racial

discrimination, as we recently explained in Patterson,

we assume for purposes of our analysis the same

rationale applies to the selection or exclusion of

members based on gender. See Patterson, unpub. op.

at *20–21.

Next, we will assume, for purposes of our analysis,

Jessie does not bar our consideration of the member

data sheets and SURFs Appellant moved to attach on

appeal. We note that the names of the members the

convening authority did and did not select are

included in the record, and these names are some

indication of the proportions of males and females

selected. In particular, the “one for one” replacement

of female panel members (one of whom was also an

African American panel member) may be sufficient to

raise, but not resolve, an issue as to whether the

convening authority improperly considered gender

and race in appointing court members. Accordingly,

Jessie would permit us to consider the data sheets and

SURFs in order to resolve this issue. 79 M.J. at 442;

Patterson, unpub. op. at *21.

Nevertheless, we are not persuaded Appellant has

met his burden to demonstrate “clear” or “obvious”

error in the selection process. We agree with the

Government that the routine provision to the

convening authority of professional and personal

information including race and gender does not in

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itself constitute a prima facie showing that the

convening authority improperly relied on such criteria

in selecting members under the plain error standard

of review. “[R]acial identifiers are neutral, [although]

capable of being used for proper as well as improper

reasons.” Jeter, 84 M.J. at 74 (citing United States v.

Loving, 41 M.J. 213, 285 (C.A.A.F. 1994)). “We will not

presume improper motives from inclusion of racial

and gender identifiers on lists of nominees for courtmartial duty.” Loving, 41 M.J. at 285.3 Similarly, we

are not persuaded the selection on one occasion of 3

females and 7 males from a pool of 9 female and 20

male prospective replacement members meets the

“clear” or “obvious” standard where (1) an innocent

explanation is facially plausible, and (2) Appellant has

not identified a similar pattern of possible

discrimination in any other court-martial involving

this convening authority.

The circumstances in Jeter are distinguishable in

several significant ways. First, and importantly, the

appellant in Jeter did not forfeit the issue but

challenged the selection process at trial, alleging

“systematic exclusion of members based on race and

gender.” 84 M.J. at 71. Moreover, the record in Jeter

indicated the panel was composed entirely of “white

men.” Id. Two African American members on the

original convening order were subsequently removed

from the panel by the convening authority. Id. at 74.

Furthermore, the convening authority at issue in

Jeter had a documented history of race-conscious

selections, having convened all white court-martial

panels for three prior courts martial involving African

3 We note Jeter did not purport to overrule Loving, which Jeter

cited with evident approval. See Jeter, 84 M.J. at 74.

14a

American accuseds. Id. The CAAF concluded these

circumstances, coupled with the provision of racially

identifying information to the convening authority,

were sufficient for a prima facie showing under

ordinary standards of review. In Appellant’s case, we

do not have comparable circumstances. Instead, we

have a situation where statistically, the raw likelihood

of selecting female panel members aligned nearly

precisely with the actual panel venire selections by

the convening authority. Appellant’s burden to

demonstrate “clear” or “obvious” error requires

something more substantial than that. Thus, we find

Appellant has not demonstrated the purposeful

misuse of race or gender as a selection criterion by the

convening authority under these circumstances. We

find no clear error and conclude that Appellant is not

entitled to relief on this issue.

B. Legal and Factual Sufficiency

1. Additional Background

The primary evidence for Appellant’s convictions

for two specifications of sexual abuse of a child

between January 2014 and January 2018 in violation

of Article 120b, UCMJ, came from AB’s testimony.

Trial defense counsel sought to impeach her

credibility at several points during her crossexamination concerning previous occasions where she

admitted lying to her parents, school officials, and law

enforcement about unrelated events. However, as to

the actual charged misconduct in this case, AB’s

testimony was corroborated by Appellant’s oral

admissions in March 2022 during a pretext phone call

with AB, and by his written admissions over direct

message communications with AB from February

through June 2020. The primary evidence for

15a

Appellant’s convictions for assault consummated by a

battery upon a child under the age of 16 years on 27

August 2017 in violation of Article 128, UCMJ, came

from AB’s testimony; a prior audio-recorded interview

by civilian law enforcement of EB, AB’s brother,4 who

witnessed the incident; and photographic evidence of

red marks on AB’s face and neck as observed by

witnesses and civilian law enforcement who

responded to the scene. Detailed discussion of

surrounding circumstances for these offenses follows.

a. Child Sexual Abuse via Lewd Acts

(Sexual Contacts)

In January 2014, when the events giving rise to

allegations of sexual abuse against her by Appellant

began, AB was approximately 11 years old. Appellant

divorced AB’s mother when AB was 2 or 3 years old,

and by 2014, AB was primarily living with Appellant

(AB’s father) and his new wife, TSgt JG.

i) Breast touching and the “flash the

world” game

The sexual abuse of AB began with the “flash the

world” game when she was in the fifth grade. AB was

approximately 11 years old and living with Appellant

while he was stationed in Colorado.5 As part of that

“game” Appellant would lock AB’s arms behind her

This interview was admitted at trial as a “past recollection

recorded” pursuant to Mil. R. Evid. 803(5) after EB testified to no

longer having a precise memory of those events.

4

The same facts supporting Appellant’s conviction for sexual

abuse of AB by touching AB’s breast with his hand with the

intent to abuse her also apply to Appellant’s conviction for the

conditionally dismissed battery specification which involved

“unlawfully hold[ing] the arms of [AB], a child under the age of

16 years, with his hands while lifting her shirt.”

5

16a

back so she could not move, and then lift up her wired

bra and shirt, while in the process making contact

with her breasts with his hands. After she was

exposed, he walked her towards a window. AB

testified that when these “games” began, she

considered them “funny” and did not view them as

punishment, and that both she and Appellant would

laugh during them.

However, things changed as she grew older and

continued to develop physically during puberty. Over

time, AB would tell Appellant to stop and try to pull

her shirt down when he tried to pull it up. The family

moved to California in the summer of 2017 when

Appellant completed a permanent change of station

move (PCS) to Vandenberg Space Force Base (SFB),

California. Once in California, and just prior to her

freshman year of high school, AB told Appellant that

the “flash the world” game made her feel

uncomfortable, and they both agreed she was “too old”

to be subjected to it. Nonetheless, after this mutual

agreement that AB was too old to have her father

exposing her breasts as a “game,” Appellant persisted

in that activity approximately 20 to 30 times before

AB ceased living with Appellant altogether in

November 2017. On the last occasion of this “flash the

world game,” Appellant was alone with AB in the

house when he tried to initiate playful wrestling with

AB. After she unequivocally told him “no” and to

“leave [her] alone,” he locked her arms behind her

back, pulled her bra and shirt up over her head, and

said, “This is what you want the world to see.”

Meanwhile, AB was screaming at him, telling him to

“get off of [her].” She felt mad at Appellant and

humiliated by the incident. During her testimony, AB

17a

explained that she felt “like [she] didn’t want to be in

[her] body anymore.”

ii) Vulva touching and the “I toe’d you

so” game

Appellant’s touching of AB’s vulva with his foot

also occurred during what was originally conveyed by

Appellant to AB as another game—this time the “I

toe’d you so” game. This “game” began when AB was

approximately 13 years old and was once again

preceded by purportedly playful wrestling. Appellant

would grab AB’s arms and pull them toward him while

he and she were on the couch, and then place his toe

on her vaginal area and press it into her vulva (over

her clothes). As he pressed his toe into AB’s vulva, he

would chuckle and say, “I toe’d you so.” During these

encounters AB would try to get away from Appellant.

She would tell him to “stop,” cry, or yell. AB testified

that these encounters left her feeling “hurt,” “sore,”

and “embarrassed.”

As with the “flash the world” game, AB told

Appellant that she was “too old” for the “I toe’d you so”

game, raising the issue during the same discussion

she had with Appellant regarding the “flash the world

game” just prior to her freshman year in high school.

Nonetheless, Appellant persisted with this “game”

during the 2015 to 2017 timeframe on multiple

occasions.

AB’s younger brother, EB, testified at trial that

during the charged timeframe he would play “foot

wars” with his sister where they would playfully kick

each other, and he would do the same with his father,

but separately from AB. EB did not recall any occasion

where Appellant subjected EB to the “I toe’d you so”

game.

18a

iii) Appellant’s admissions

At trial the Government admitted a series of social

media direct message communications between

Appellant and AB (Prosecution Exhibit 1) in which he

appears to admit to and show remorse for the “games”

referenced above:

[Appellant:] Flash the world, and I towed you

was so wrong of me . . .

[AB:] Thank you it means a lot coming from you

[Appellant:] I don’t know what I was thinking

But it wasn’t wrignt [sic]

Right!!!

I hope you can forgive me for that.

In addition, the Government admitted an audio

recording of a pretext phone call (Prosecution Exhibit

3) between Appellant and AB conducted on 22 March

2021 under the supervision of the Air Force Office of

Special Investigations (OSI) while investigation into

these charges was ongoing. The Government played

the audio recording at trial before the members.

During the call, AB asked Appellant to explain to her

“why things happened the way they did,” which led to

the following exchange:

[AB:] Like the flashing the world and the toes,

flashing the world and.

[Appellant:] Yep, those were games that got

way out of control.

[AB:] Those weren’t games. I told you how that

made me uncomfortable and you didn’t even

care.

[Appellant:] It’s not that I didn’t care.

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[AB:] Well, what was it? When I’m telling you

that what you’re doing is making me

uncomfortable and you just went ahead—

[Appellant:] I don’t have any answers for you.

I’m sorry.

[AB:] You don’t even sound sorry.

[Appellant:] How does sorry sound?

[AB:] Genuine. Like you care a little bit. That—

I don’t know, a lot of things that you did

literally broke your own daughter and you just

don’t seem to care and carry on with life like

nothing ever happened.

[Appellant:]

perspective.

I’m

sure

that

that’s

your

[AB:] No, that’s not a perspective. It [sic] why

did my breasts have to be shown? What did I do

to deserve that? Like outside of the window and

why—why the toes? That made—it hurt. My

vagina hurt. And not even that, that made me

uncomfortable to sit there after that happened

all the time. And to think like what the hell is

even going on. All you can sit there and say is

you don’t have any answers. There is no

answers to why?

[Appellant:] Yes, that is correct. Unfortunately,

that is what happened.

b. Assaults Consummated by a Battery

Against a Child Under the Age of 16

Appellant was the primary disciplinarian for AB

while she was living with him. He would routinely use

a paddle he made for the specific purpose of spanking

AB and stored it under her bed as a reminder to her

20a

of how he would punish her for perceived misconduct.

At trial, AB also testified that there were several

occasions when Appellant would “body slam” her if she

tried to run from him as he was trying to inflict

corporal punishment on her. That evidence was

admitted without objection at trial.

The incident giving rise to allegations that

Appellant grabbed AB’s neck and slapped her face in

August 2017 occurred during Appellant’s permanent

change of station travel to Vandenberg SFB. AB, then

approximately 14 years old, and her brother EB, then

approximately 12 years old, were staying in the same

off-base hotel room with Appellant and his new wife,

TSgt JG. On the evening of the incident, tempers were

strained because Appellant and TSgt JG were arguing

in their room. AB and Appellant then got into an

argument after TSgt JG took AB to task for using

TSgt JG’s boxing glove tape to fashion a makeshift dog

leash to take the family dogs for a walk. AB was upset

at the argument she had with TSgt JG and went to

complain to Appellant about it. When AB tried to talk

to Appellant about the situation, AB and Appellant

got into a loud “yelling” argument that quickly

escalated to physical violence. In her testimony at

trial, AB explained during direct examination that:

[AB:] . . . [Appellant] slapped his hand over my

mouth and my nose and pushed me to the wall

in a chokehold. And then I was screaming, so

then he put his hand over my mouth again and

pushed me to the ground. . . . And then my

dad—I get up and we’re still fighting. And all of

a sudden, he had his arm around my throat and

his hands were in my mouth and my nose and

he was like, swinging me around, choking me.

21a

[Trial Counsel (TC):] When you say “choking

you” . . . was his hand on your neck?

[AB:] He had me in a head lock.

[TC:] Headlock. What was going through your

mind when he had you in that headlock?

[AB:] My dad hit me, but he never did that to

me before. . . . So when he did that, it just—I

felt the anger. I felt it inside of him. Just going

from when I was younger, he was my best

friend. I loved my dad. So, just looking when he

was first choking me, looking into his eyes, and

I—how could [he] look me in the eyes while

[he’s] doing that.

During redirect examination, AB reaffirmed her

perceptions of Appellant’s motives in grabbing her

neck and slapping her face, asserting that Appellant,

fueled by alcohol, had “fire in his eyes,” and “It just

didn’t even look like my dad anymore. And I could just

feel when he grabbed me that he wasn’t even there.”

Contrary to TSgt JG’s testimony, who testified she

did not recall hearing any commotion after arguing

with AB, EB, AB’s younger brother, did recall these

events. EB’s prior statement was audio recorded by

law enforcement in November 2017 during Santa

Maria Police Department’s investigation of AB’s

sexual abuse allegations against Appellant and was

admitted as a past recollection recorded at trial. In his

audio-recorded statement, EB corroborated AB’s

version of events, stating:

[H]e put his hand around her mouth . . . like in

her mouth, and . . . he put his arm . . . around

her neck and like lifted her up and like starting

22a

swinging her around . . . . My dad came out and

started, like, manhandling her.

c. Civilian and Military Law Enforcement

Investigations

Civilian law enforcement in Santa Maria,

California, opened two separate investigations into

Appellant for the incidents described above. The first

investigation was opened on 27 August 2017 when

local civilian law enforcement responded to the Santa

Maria Inn after a group of women celebrating a

bachelorette party saw AB wandering the halls

crying, with a bleeding lower lip and red marks

around her neck. These women calmed AB, asked her

what happened, took pictures of her face and neck

injuries, and then called the police to report the

incident. Responding to the scene, law enforcement

interviewed AB, EB, Appellant, and TSgt JG, and

reviewed the photos of her injuries.

The second Santa Maria investigation was opened

on 17 November 2017 when AB reported her sexual

abuse allegations against Appellant. On the same day

of the final “flash the world” incident, AB reported the

incident to her mother and uncle. While AB’s mother

did not call the police, AB’s uncle did. His call

precipitated the second Santa Maria investigation

and a third in Vail, Colorado, where AB’s uncle lived.

Following this report to law enforcement, AB moved

out of Appellant’s house and moved in with her uncle

and then with her boyfriend in Colorado.

For reasons unspecified at trial, both of those

civilian investigations remained open but were only

discovered by the Air Force authorities in February

2021 during a routine security clearance background

investigation of Appellant. Thereafter, members of

23a

the OSI reached out to AB and it was then that she

reported the physical and sexual abuse recounted

above to OSI. As part of the OSI investigation, AB

initiated a pretext phone call with Appellant on 22

March 2022. During this phone call, Appellant made

the oral admissions regarding “flash the world” and “I

toe’d you so” noted supra.

Throughout these investigations, AB never

returned to live with Appellant. However, she

remained in periodic contact with Appellant, and

would occasionally ask him for financial support. Her

last request for financial support to her father came

on or about 20 March 2022, two days prior to the OSI

pretext phone call with Appellant but following her

prior allegations against her father as recounted

supra.

d. Instructions and Findings

Appellant requested and the military judge

instructed the court-martial members on the parental

discipline defense during the findings instructions at

trial. Similarly, the military judge provided a Mil. R.

Evid. 404(b) type limiting instruction vis-a-vis the

uncharged incidents AB referred to during her

testimony.6 The military judge instructed the court

members that they may consider those incidents for

two limited purposes: (1) for their tendency, if any, to

explain AB’s decision to report the charged offenses

against Appellant, or (2) to rebut or reinforce any

6 During her direct examination, AB testified to two instances of

uncharged misconduct by Appellant: (1) that Appellant directed

her to model underwear, and (2) that Appellant sexually

assaulted AB’s biological mother. The Defense did not object to

any of that testimony.

24a

charge that AB recently fabricated her allegations or

testified from a recent improper influence or motive.

During findings deliberations, the court members

asked if there was a legal definition for the word

“abuse” pertinent to the two specifications alleging

violations of Article 120b(3), UCMJ, sexual abuse of a

child via lewd acts with the intent to abuse. In

response, the trial defense counsel requested that the

military judge instruct the court members “that

there’s no definition and to use your common

knowledge.” Ultimately, the military judge instructed

the court members as trial defense counsel had

requested, telling the court members that “the term

‘abuse’ is not further defined under Article 120b,

Uniform Code of Military Justice. For that reason, you

are instructed to give the term its common ordinary

and accepted meaning.”

The court-martial members found Appellant guilty

of all charges and specifications without any

exceptions or substitutions.

2. Law

We review issues of legal and factual sufficiency de

novo. United States v. Washington, 57 M.J. 394, 399

(C.A.A.F. 2002) (citation omitted). “Our assessment of

legal and factual sufficiency is limited to the evidence

produced at trial.” United States v. Rodela, 82 M.J.

521, 525 (A.F. Ct. Crim. App. 2021) (citation omitted).

For evaluating convicted offenses committed

before January 2021, “[t]he test for legal sufficiency is

whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime

beyond a reasonable doubt.” Robinson, 77 M.J. at 297–

98 (citation omitted). “[T]he term ‘reasonable doubt’

25a

does not mean that the evidence must be free from any

conflict . . . .” United States v. King, 78 M.J. 218, 221

(C.A.A.F. 2019) (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).

Thus, “[t]he standard for legal sufficiency involves a

very low threshold to sustain a conviction.” King, 78

M.J. at 221 (alteration in original) (citation omitted).

“The test for factual sufficiency is ‘whether, after

weighing the evidence in the record of trial and

making allowances for not having personally observed

the witnesses, [we are ourselves] convinced of the

[appellant]’s guilt beyond a reasonable doubt.’”

Rodela, 82 M.J. at 525 (alterations in original)

(quoting United States v. Turner, 25 M.J. 324, 325

(C.M.A. 1987)). “In conducting this unique appellate

role, we take ‘a fresh, impartial look at the evidence,’

applying ‘neither a presumption of innocence nor a

presumption of guilt’ to ‘make [our] own independent

determination as to whether the evidence constitutes

proof of each required element beyond a reasonable

doubt.’” United States v. Wheeler, 76 M.J. 564, 568

(A.F. Ct. Crim. App. 2017) (alteration in original)

(quoting Washington, 57 M.J. at 399), aff’d, 77 M.J.

289 (C.A.A.F. 2018).

a. Article 120b, UCMJ: Child Sexual Abuse

via Lewd Acts (Specifications 1 and 2 of

Charge I)

In order to convict Appellant of sexual abuse of a

child via sexual contact, the Government was required

to prove that on divers occasions between on or about

1 January 2014 and on or about 1 January 2018,

26a

within the continental United States, Appellant

touched AB’s vulva with his foot with an intent to

abuse her. See Article 120b(c), UCMJ, 10 U.S.C. §

920b(c); see also Manual for Courts-Martial, United

States (2016 ed.) (2016 MCM), pt. IV, ¶ 45b.b.(4)(a).

To convict Appellant of the second specification of the

same charge, the Government was required to prove

the same elements, on divers occasions, except

between on or about 1 January 2015 and on or about

1 January 2018, and that the applicable sexual

contact was Appellant touching AB’s breast with his

hands with an intent to abuse her. See 2016 MCM, pt.

IV, ¶ 45b.b.(4)(a).

A “lewd act” includes any sexual contact with a

child. Article 120b(h)(5)(A), UCMJ, 10 U.S.C. §

920b(h)(5)(A). For purposes of Article 120b, UCMJ,

“sexual contact” includes “touching . . . either directly

or through the clothing, the genitalia . . . [or] breast .

. . of any person, with an intent to abuse, humiliate, or

degrade any person.” Article 120(g)(2), UCMJ, 10

U.S.C. § 920(g)(2); Article 120b(h)(1), UCMJ, 10

U.S.C. § 920b(h)(1) (adopting the definition of “sexual

contact” from Article 120(g), UCMJ). The term “abuse”

is not defined in the statute.

Article 120b(c), UCMJ, lewd acts against a child

involving sexual contact, is a specific intent offense.

See 2016 MCM, Pt. IV, ¶45b.b.(4)(a)(ii). Specific intent

may be proved by circumstantial evidence. See United

States v. Rodriguez, 79 M.J. 1, 4 (C.A.A.F. 2019)

(citing United States v. Acevedo, 77 M.J. 185, 189

(C.A.A.F. 2018) (“Intent can be shown by

circumstantial evidence.”); United States v. Kearns, 73

M.J. 177, 182 (C.A.A.F. 2014) (“[T]he Government was

free to prove Appellant’s intent by circumstantial

evidence.” (Alteration in original)) (holding in an

27a

Article 120b(c), UCMJ, case that circumstantial

evidence was competent to prove appellant’s intent to

gratify sexual desire); see also Brooks v. United States,

309 F.2d 580, 583 (10th Cir. 1962) (“The conduct of the

parties within a reasonable time before and after [an

act] are circumstances which a jury may consider in

determining such intent, motive or purpose.”).

Relatedly, a finder of fact at trial is authorized to infer

that a person intends the natural and probable

consequences of their actions. See, e.g., United States

v. Willis, 46 M.J. 258, 261 (C.A.A.F. 1997) (“[W]e infer

the intent when the result was the same as that

intended or at least a natural and probable

consequence of the intended result . . . . [If] the

defendant has the requisite intent for the intended

crime, the defendant will be responsible for the

natural and probable consequences of the act.”).

The parties in this case debate the meaning of

“abuse” as referenced in Article 120c, UCMJ. We

consider issues of statutory interpretation de novo.

United States v. Mendoza, __ M.J. __, No. 23-0210,

2024 CAAF LEXIS 590, at *8 (C.A.A.F. 7 Oct. 2024)

(citation omitted). “In the absence of a statutory

definition, the plain language of a statute will control

unless it is ambiguous or leads to an absurd result.”

United States v. Cabuhat, 83 M.J. 755, 765 (A.F. Ct.

Crim. App. 2023) (en banc) (citation omitted). In turn,

plain and ordinary meaning can be gleaned from

dictionary definitions of terms. Id. at 766 (quoting

United States v. Schmidt, 82 M.J. 68, 75–76 (C.A.A.F.

2022) (Ohlson, C.J., concurring in the judgment)

(footnote and citation omitted) (“[W]hen a word has an

easily graspable definition outside of a legal context,

authoritative lay dictionaries may also be

consulted.”)); see id. at 767 n.12 (consulting Oxford

28a

English Dictionary and Merriam Webster’s Dictionary

for common and ordinary usage of the word

“presence”).

When we see a facial ambiguity in a statutorily

undefined term, we must interpret that term in the

broader context of the entire statute. See United

States v. Sager, 76 M.J. 158, 161 (C.A.A.F. 2017)

(reasoning that words and phrases within the UCMJ

are interpreted by examining, inter alia, “the context

in which the language is used, and the broader

statutory context” (quoting United States v. Pease, 75

M.J. 180, 184 (C.A.A.F. 2016)). Relatedly, “unless the

context indicates otherwise, words or phrases in a

provision that were used in a prior act pertaining to

the same subject matter will be construed in the same

sense.” United States v. Edwards, 46 M.J. 41, 43

(C.A.A.F. 1997) (citation omitted). Finally, we are

mindful of the surplusage canon of construction by

which “if possible, every word and every provision is

to be given effect and [ ] no word should be ignored or

needlessly be given an interpretation that causes it to

duplicate another provision or to have no

consequences.” Mendoza, 2024 CAAF LEXIS 590, at

*12 (quoting Sager, 76 M.J. at 161).

b.

Article

128,

UCMJ:

Assaults

Consummated by a Battery Against a

Child Under the Age of 16 (Specifications

2 and 3 of Charge II)

In order to convict Appellant of assault

consummated by a battery against a person under the

age of 16 years, the Government had to prove the

following elements: (1) that Appellant did bodily harm

to AB (to wit: grabbing her neck with his hand); (2)

that he did so with unlawful force or violence; and (3)

29a

that at the time AB was under the age of 16 years.

2016 MCM, Pt. IV, ¶54.b.(3)(c). To convict Appellant

of the second specification of the same charge, the

Government was required to prove the same elements

over the same time period, except that the applicable

bodily harm to AB was to wit: striking her face with

his hand. See 2016 MCM, pt. IV, ¶ 54.b.(3)(c).

Parental discipline is an established defense to

such allegations, but to apply, Appellant’s purpose in

inflicting corporal punishment on the child “must be

for the primary purpose of safeguarding or promoting

the welfare of the child, including the prevention or

punishment of the child’s misconduct.” Military

Judge’s Benchbook, Dept. of the Army Pamphlet 27-9

at 1712 (29 Feb. 2020) (emphasis added).

Furthermore, “the force used may not be

unreasonable or excessive.” Id.; see also United States

v. Rivera, 54 M.J. 489, 492 (C.A.A.F. 2004) (footnote

omitted) (holding that the Government can meet its

burden of establishing a substantial risk of serious

bodily injury without “physical manifestation of

actual harm”).

3. Analysis

a. Sexual Abuse of a Child, AB, via Lewd

Acts

Much of the controversy in this case centers

around the definition of “abuse.” Appellant contends

his convictions for child sexual abuse against AB are

legally and factually insufficient because Appellant

did not have the specific intent to “abuse” AB when he

touched her breast with his hands and her vulva with

his foot. Appellant argues that “abuse” connotes only

physical injury and asserts that “[w]hatever ‘intent to

abuse’ means, it has to be distinct from ‘intent to

30a

degrade’ and distinct from ‘intent to humiliate.”

Meanwhile, the Government counters that “abuse” is

more expansive than solely intent to cause physical

injury and instead includes “cruel treatment,”

whether or not undertaken with an intent to inflict

physical injury. The Government cites to Black’s Law

Dictionary which defines “abuse” as follows:

Abuse, 1. To damage (a thing). 2. To depart

from legal or reasonable use in dealing with (a

person or thing); to misuse. 3. To injure (a

person) physically or mentally. 4. In the context

of child welfare, to hurt or injure (a child) by

maltreatment. In most states, a finding of

abuse is generally limited to maltreatment that

causes or threatens to cause lasting harm to the

child.

Abuse, BLACK’S LAW DICTIONARY 5 (11th ed. 2019).7

In construing the definition of “abuse” we are

mindful of our superior court’s holding in Sager; that

serial terms designated in Article 120(b)(4) of “asleep,”

“unconscious,” “or otherwise unaware” created

distinct categories of liability and not merely

methodologies of committing the same type of act. 76

M.J. at 161–62 (“Canons of construction ordinarily

suggest that terms connected by a disjunctive be given

separate

meanings,

unless

context

dictates

While the Government makes reference to Black’s Law

Dictionary, under the circumstances, we construe that “abuse” is

essentially a lay term used within a legal statute, and thus

susceptible to interpretation using lay dictionaries. See Schmidt,

82 M.J. at 75–76 (Ohlson, C.J., concurring in the judgment). We

note that the Black’s Law Dictionary definition largely aligns

with the lay dictionary definition. See MERRIAM-WEBSTER,

Abuse, https://www.merriam-webster.com/dictionary/abuse (last

visited 14 Feb. 2025).

7

31a

otherwise.” (quoting Reiter v. Sonotone Corp., 442 U.S.

330, 339 (1979))). Our superior court recently

reaffirmed that reasoning in Mendoza, explaining

that Sager’s holding was premised upon an

application of the surplusage canon of statutory

construction. 2024 CAAF LEXIS 590, at *12.

Accordingly, we agree with Appellant and assume for

the sake of argument that the terms “abuse,”

“humiliate,” “harass,” “degrade,” and “arouse the

sexual desire of any person” as used in Article 120b,

UCMJ,8 are discrete categories of specific intent and

that the Government’s proof must prove the specific

category charged: here, an intent to “abuse.”

However, we part ways with Appellant in applying

the surplusage canon to this case. Whereas Appellant

would have it that the surplusage canon mandates no

overlap between statutory terms, we interpret the

surplusage canon, in the light of Sager and Mendoza,

as forbidding only the substantial submission of one

statutory term to another. See Mendoza, 2024 CAAF

LEXIS 590, at *12 (explaining that the surplusage

canon prohibits “an interpretation that causes [one

statutory term] to duplicate another provision or have

no consequences”) (quoting Sager, 76 M.J. at 161)

(emphasis added)).

The fact that there is conceivably some overlap

between a definition of “abuse” that embraces both

physical injury and emotional trauma, and other more

specific and pointed instances of psychological harm

within the meaning of “humiliate” and “degrade,” does

not render this entire statutory scheme surplusage.

8 We note that per Article 120b(h)(1), UCMJ, the definition of

“sexual contact” for child sex offenses incorporates the definition

of “sexual contact” from Article 120(g)(2), UCMJ.

32a

“Cruel treatment,” including emotional trauma, does

not completely subsume degradation or humiliation

which we deem—by their plain and ordinary

meanings—to be more particular parallel species of

harm. “Humiliate,” for example, ordinarily means “to

lower position in one’s own eyes or others’ eyes.”9

“Degrade” means, inter alia, “to lower in grade, rank,

or status,” or “to strip rank or honors,” or “to bring to

low esteem or into disrepute.”10 Arguably, all of these

terms have some overlap with each other, but we do

not understand our superior court’s precedent in

Sager and Mendoza to stand for the proposition that

any usage of similar terms by Congress will be

invalidated by the surplusage canon. Instead, a

definition is permissible so long as it still enables each

statutory term to perform an “independent function.”

Cf. Yates v. United States, 574 U.S. 528, 543 (2015)

(holding that the surplusage canon is violated when a

purported statutory interpretation results in a

“significant overlap” eliminating an independent

function for each term). Thus, construing “abuse”

within the statutory context of Article 120b(c), UCMJ,

we find that Congress employed terms that stand for

discrete varieties of both physical and psychological

harm—abuse, degrade, and humiliate—creating a

rational legislative structure that gives independent

meaning to each term.

Applying these principles, we find our

interpretation abides with the surplusage canon of

construction by avoiding, inter alia, rendering the

9 MERIAM-WEBSTER DICTIONARY, Humiliate, https://www.merri-

am-webster.com/dictionary/humiliate (last visited 14 Feb. 2025).

MERIAM-WEBSTER DICTIONARY, Degrade, https://www.merriam-webster.com/dictionary/degrade (last visited 14 Feb. 2025).

10

33a

term “abuse” duplicative with the word “force,” which

are both contained within the same statutory scheme.

See Article 120b(h)(2)(B), UCMJ, 10 U.S.C. §

920b(h)(2)(B) (defining “force” as “use of physical

strength or violence as is sufficient to overcome,

restrain, or injure a child”). It also avoids an absurd

interpretation of the term “abuse” when applied to

other types of conduct that fall under the definition of

“lewd act” pursuant to Article 120b, UCMJ.

Specifically, a definition of “abuse” purporting to only

include physical abuse, would appear to be highly

inapt to other areas where Congress assigned specific

intent to “abuse” in situations not involving physical

contact with the child victim, most notably, indecent

exposure (of an accused to a child victim) and indecent

language. See Article 120b(h)(5)(B), (C), UCMJ, 10

U.S.C. §§ 920b(h)(5)(B),(C). We find it highly

improbable Congress prefaced the criminality of the

exposure of one’s body parts or utterance of indecent

language on an intent that the mere display or

utterance would cause physical harm to a child victim.

It strikes us that no matter how unsightly the

indecent exposure nor how unsavory the indecent

language, actual resulting physical harm therefrom

would be a practical improbability and a near physical

impossibility. By contrast, construing “abuse” as

including an intent to inflict cruel treatment

(including emotional trauma) aligns across the

entirety of Article 120b—including those scenarios

where the lewd act is performed without physical

contact with the child victim.

Applying the common and ordinary meaning of

abuse, we agree with the Government that the

definition of “abuse” extends not only to physical

injury but also more broadly to cruel treatment. As

34a

pointed out by the parties’ briefs, dictionary

definitions of “abuse” vary and involve, inter alia,

references to physical maltreatment, infliction of a

mental injury, and sexual abuse. Moreover, the term

“abuse” must be considered in the context of the

overall statutory scheme. See Sager, 76 M.J. at 161.

Here we conclude that the term abuse is not limited

solely to instances of physical abuse but rather to a

broader category of “cruel” treatment that either

causes or threatens to cause lasting harm to a child.

See Abuse, BLACK’S LAW DICTIONARY 5. In this case, the

cruelty stemmed from Appellant’s willful subjection of

his teenage daughter to his contact with and his

exposure of her breasts, and to his contact with her

vulva despite her specific pleas to stop. That cruelty

and the high likelihood that the nature of the conduct

caused or could cause lasting emotional harm is

further enhanced by Appellant’s admission to AB that

she was too old for these “games,” and by his

persistence despite her verbal and physical resistance

and the physical pain and discomfort that Appellant

inflicted on her.

Having construed the applicable definition and

qualifying conduct for “abuse,” we move to Appellant’s

argument that he did not have the specific intent to

“abuse” AB with his actions. We are unconvinced.

First, even if we were to construe “abuse” as solely

pertaining to physical harm, circumstantial evidence

would establish such an intent as AB told Appellant

not only that she was emotionally uncomfortable with

“flash the world” and “I toe’d you so” but also

physically uncomfortable. Regarding “I toe’d you so,”

AB specifically testified to the pain she felt in her

vaginal area from Appellant forcefully pressing

against her with his foot.

35a

Second, Appellant’s post hoc and self-serving

insistence that “flash the world” and “I toe’d you so”

were mere “games” does not render him immune from

a finding that he harbored the requisite criminal

intent to abuse. Those “games,” under the

circumstances, were not games in any meaningful

sense of the word. Exposing his daughter’s breasts

against her will is no part of playful “wrestling,”

neither is intentionally placing his foot on her vaginal

area and engaging in a cringeworthy pun. Moreover,

Appellant knew that AB was uncomfortable with

“flash the world” and “I toe’d you so”—yet he

persisted. Because Article 120b(c), UCMJ, is a specific

intent offense, Appellant need only have honestly

misinterpreted AB’s reaction and feelings towards

these “games” in order to lack the requisite intent to

“abuse” (i.e., inflict cruelty against) her. However,

construing the facts at trial in the light most favorable

to the Government and drawing all reasonable

inferences therefrom, we conclude Appellant

entertained no confusion as to whether these were

mutually enjoyable “games” or cruel actions which he

alone found amusing notwithstanding his daughter’s

feelings and protests. At a minimum, any

misunderstanding vanished when AB, now postpubescent and more assertive of her personal bodily

autonomy, told Appellant to stop and physically

resisted his contact with her intimate body areas.

Under the totality of the circumstances, we are firmly

convinced that Appellant made contact with AB’s

breasts and vulva as alleged and that he had the

specific intent to abuse (i.e., inflict cruel treatment

36a

upon) AB when subjecting her to his “flash the world”

and “I toe’d you so” “games.”11

b. Battery of AB: Grabbing AB’s Neck

Appellant argues that no rational trier of fact could

have found Appellant guilty of grabbing AB “by the

Finally, even if we were to accept Appellant’s invitation to

interpret “abuse” as only encompassing a specific intent to cause

physical harm/pain, here we would still affirm Appellant’s

convictions for the “flash the world” and “I toe’d you so”

encounters on that basis. Here, AB testified that the “I toe’d you

so” game caused her pain, and while she did not testify in

findings that she suffered physical pain as a result of the “flash

the world” game, her suffering physical pain is not a required

component of Appellant’s intent to inflict it. Also, we can look at

the underlying nature of the contact and indulge a reasonable

inference that people generally intend the natural and probable

consequences of their actions. See United States v. Willis, 46 M.J.

258, 262 (C.A.A.F. 1997) (“Under a concurrent-intent approach,

we infer the intent when the result was the same as that

intended or at least a natural and probable consequence of the

intended result.”); United States v. Hoyt, 48 M.J. 839, 842 (N.M.

Ct. Crim. App. 1998) (quoting United States v. Christensen, 15

C.M.R. 22, 25 (C.M.A. 1954) (finding “as a rule of circumstantial

evidence, a court-martial is certainly free to infer that a sane

person intends the natural and probable consequences of his

conduct”)). So where, as here, Appellant is arm locking his

daughter and roughly lifting her wire bra (while in the process

touching her breast) to perpetrate the “flash the world” game, the

natural and probable consequence would be the infliction of pain.

Viewing this evidence from the light most favorable to the

Government, we would find it legally sufficient to affirm

Appellant’s convictions even if the definition of “abuse” extends

only to physical harm/injury. Likewise, as a matter of factual

sufficiency, having ourselves reviewed the evidence thoroughly

through fresh eyes, we are convinced that the evidence at trial

also supports a finding, beyond a reasonable doubt, that

Appellant inflicted the “flash the world” and “I toe’d you so”

games upon his daughter with the intent to cause her physical

harm/pain.

11

37a

neck with his hand” because AB did not directly testify

that Appellant used his hands during his “chokeholds”

and “headlocks” of her. We are unconvinced by

Appellant’s arguments.

Evaluating all the evidence admitted at trial, we

hold a rational trier of fact could have found the

elements of this specification proven beyond a

reasonable doubt. The combined testimony of AB,

corroborated by EB, who witnessed the event,

established that on 27 August 2017, at the Santa

Maria Inn, the incident occurred as alleged. The court

members were permitted to draw reasonable

inferences from AB’s testimony at trial that Appellant

“choked” her and “head locked” her, and determine

that he used his hands in accomplishing his purpose.

In assessing the legal sufficiency of this specification

and drawing all reasonable inferences in favor of the

Government, we conclude that the physical mechanics

of placing another person in a chokehold or headlock

involved hand contact by Appellant with AB’s neck

area.

Furthermore, even if Appellant did not place his

hands on AB’s neck as part of the “headlock” he put on

her, the headlock was not the only part of the

encounter that AB testified to. AB testified that

Appellant “looked into her eyes” as he was first

choking her—meaning he was facing her as he

“choked” her. As described by AB at trial, this was the

beginning of—not the end of—the encounter and it is

not inconsistent with EB’s past recollection recorded

that he saw Appellant lifting AB with his arm around

her neck. While Appellant would have us hold AB’s

use of the term “chokehold” to a specific term of art

which includes holding another’s neck from behind

with the arm, there was no evidence presented that

38a

AB used that term specifically as an experienced

mixed martial artist expert. Laymen routinely use

terms that might not be in full accord with how an

expert would use the term—which is why it is the

context of the word usage that matters. Here AB’s

description of how Appellant initially assaulted her by

“choking” her while facing her, progressing to a

headlock where he was “swinging her around” with

his arm around her throat represents a continuum of

contact actions. The Government’s charging language

was a modest and understated version of what the

facts at trial established, for not only did Appellant

“grab” AB’s neck, he demonstrably did so in the

process of “choking” (i.e., strangling) and head-locking

her. Given that “choking” face-to-face (as AB

described) is consistent with a “grabbing” type action

of an assailant’s hands to the neck of a victim, a

rational trier of fact could reasonably conclude

Appellant used his hand to “grab” AB’s neck.

c. Battery of AB: Striking AB’s Face

Here Appellant argues that the Government failed

to disprove the applicability of the parental discipline

defense beyond a reasonable doubt, asserting:

“[s]topping AB from continuing to scream and yell is a

proper motivation for slapping his hand over her

mouth, which stopped her from continuing to scream

and yell.” We disagree.

As a matter of legal sufficiency, reviewing all the

evidence presented at trial and drawing all reasonable

inferences in favor of the Government, we conclude a

rational trier of fact could have concluded beyond a

reasonable doubt that Appellant was predominantly

motivated by personal anger, not parental control,

when he assaulted AB on 27 August 2017. Such an

39a

interpretation is supported by Appellant’s agitated

state at the time, as confirmed by both of his children:

AB, who was subjected to the physical violence, and

EB, who witnessed it. Neither are we persuaded by

TSgt JG’s convenient amnesia on this issue, whereby

she recalls with clarity all the moments of this

altercation involving AB’s loud yelling and pounding

on their bedroom door yet has a sudden loss of clarity

when it came to sounds of tumult during the physical

altercation between Appellant and AB which

immediately followed. Even if we were to assume that

AB and TSgt JG each harbored biases motivating

their testimony, there was another observer against

whom neither side has cast aspersions. EB, the

neutral eyewitness, corroborates the core of AB’s

version of events and contextualizes Appellant

striking AB’s face as an act of anger, not discipline.12

Furthermore, even assuming arguendo that

Appellant could have been simply trying to exercise

parental discipline over AB for getting in a verbal

altercation with him and TSgt JG, the force Appellant

used in an attempt to purportedly defuse that

situation was both unreasonable and excessive. Here,

Appellant slapping his hand across AB’s mouth as she

was purportedly screaming must be taken in context.

First, she was screaming in part because of the other

physical force Appellant was applying to her, namely

placing his hand and forearm on her neck and lifting

12 Indeed, we note that EB went so far as to testify during defense

cross-examination that in his opinion AB’s character for

truthfulness was “not very truthful.” Understanding this, we find

the similarity between the events described in AB’s testimony

and corroborated by EB’s past recollection recorded to be

compelling because EB apparently had no interest in serving as

a mere apologist for his sister.

40a

her up into the air, or, in the words of Appellant’s son:

“manhandling her.” In short, AB’s screams were, in

part, defensive in nature. A parent attempting to

silence his child so that no one will hear her cries for

help while he abuses her does not strike us as a

legitimate use of parental force. Cf. United States v.

Logan, No. ACM 40407, 2024 CCA LEXIS 307, *21–

22 (A.F. Ct. Crim. App. 29 Jul. 2024) (unpub. op.)

(holding that no justification defense applied to

appellant’s choking his wife to keep her from

screaming suicidal ideations in the presence of the

couple’s children). While considered in the abstract,

placing a hand over a screaming child’s mouth could

perhaps be viewed as a reasonable parental discipline

measure to calm the child and mitigate “misconduct”

resulting in a public disturbance, Appellant’s actions

here were in conjunction with a contemporaneous

neck grabbing which functionally involved some level

of strangulation. Furthermore, the evidence at trial

was that the force applied by Appellant was excessive

to any legitimate purpose where he “slapped his hand

over [AB’s] mouth” with enough force that it split her

lip and caused her to bleed. Photographic evidence of

her bloody lip recorded on the night of the event and

presented at trial confirms this.

Accordingly, we find Appellant’s conviction for this

specification of assault consummated by battery—

striking AB’s face with his hand—legally sufficient.

Moreover, having weighed the evidence in the record

of trial, and having made allowances that we did not

personally observe the witnesses, we are ourselves

convinced of Appellant’s guilt beyond a reasonable

doubt.

41a

C. Ineffective Assistance of Counsel

Appellant alleges that his trial defense counsel

were ineffective in their representation of him because

they failed to ask additional questions of TSgt JG

during her redirect examination at trial. Noting that

TSgt JG was the sole defense witness in their case in

chief who could testify to the events at the Santa

Maria Inn on 27 August 2017, Appellant now claims

that her redirect examination was deficient and case

dispositive. We are unpersuaded. As explained below,

under the circumstances, we decline to second-guess

the tactical decision by trial defense counsel to forego

additional redirect examination questioning. Trial

defense counsel’s assessment that further redirect

examination was ill-advised was based upon a

rational cost-benefits analysis evaluating the

likelihood that additional questioning could

rehabilitate the witness vice highlighting very

disadvantageous aspects of TSgt JG’s testimony.

1. Additional Background

The Defense called two witnesses in their case in

chief at trial. The first was Appellant’s wife, TSgt JG.

The second was Dr. EB, who testified as an expert in

forensic psychology and provided information on

“oppositional personality disorder” and “false

memory” during her testimony. Civilian trial defense

counsel conducted the direct and redirect

examinations of both witnesses. Appellant’s claims of

ineffective assistance of counsel are aimed solely at

the redirect examination of TSgt JG.

For context, civilian trial defense counsel’s direct

examination of AB focused on demonstrating that AB

had a bias against her father and a motive to fabricate

her allegations against him. Accordingly, during

42a

direct examination of TSgt JG, civilian trial defense

counsel elicited testimony that: (1) AB believed

Appellant was a “bad man” who had had raped and

beat AB’s mother; (2) that AB was a “troubled” child

who was “very belligerent” and “very argumentative”

with Appellant and TSgt JG; (3) that part of the

reason TSgt JG and Appellant sought a PCS to

Vandenberg SFB in the summer of 2017 was to

remove AB from “bad influences” which had resulted

in her regularly skipping school, hanging out with

other youths involved in drug abuse and shoplifting,

and herself shoplifting; (4) that AB was unhappy

about the move because her boyfriend (of whom

Appellant and TSgt JG disapproved) remained in

Colorado after AB moved to California.

TSgt JG also testified that AB had a history of

making false allegations. She provided detail about a

video in which AB claimed that TSgt JG and

Appellant had beat AB up after they threatened that

they would report her as a runaway to the police. TSgt

JG affirmatively stated that neither she nor Appellant

threatened AB nor laid a hand on her.

Turning to the facts of the 27 August 2017

incident, in contrast to AB’s testimony, TSgt JG

professed no recollection of the boxing gloves tape

leading to the argument in the Santa Maria Inn.

Contrary to both AB’s testimony and EB’s past

recollection recorded, she also denied hearing or

seeing anything about a “scuffle” in the living room,

notwithstanding the fact that she had just testified to

hearing AB “screaming at the top of her lungs”

moments before she testified she saw AB exit TSgt

JG’s and Appellant’s hotel bedroom and head for the

hotel living room.

43a

Trial counsel’s cross-examination of TSgt JG

sought to suggest that TSgt JG had a bias against AB

and a motive to fabricate her testimony to assist her

husband (Appellant). Appellant now asserts his trial

defense counsel were ineffective at “rehabilitating”

TSgt JG from those questions during redirect

examination at trial:

•

TSgt JG responded “no” when trial counsel

questioned if it was her idea for Appellant to

sign away parental rights for one of his

children.

•

TSgt JG responded that she “did not

remember” in response to trial counsel

asserting, “You actually have told people

that if you had children, you might drown

them in a bathtub?”

•

TSgt JG admitted that she and Appellant

went to the hotel restaurant to have dinner

and a drink, a statement later used by the

trial counsel to suggest that her lack of

memory was due to the alcohol.

Meanwhile, in the midst of TSgt JG’s crossexamination, the military judge provided a sua sponte

instruction to the court members, advising them that

the factual assertions made by counsel in questions

are not themselves facts for the panel’s consideration:

Included in those instructions will be an

explanation of a distinction that I’m confident

you all already recognize that when an

assertion inside of a question is posed to a

witness and the witness’ response back, you

need to rely in your determination of the facts

in the case on the evidence as presented by

44a

witnesses. Put another way, a question is itself

not evidence.

(Emphasis added).

TSgt JG’s redirect examination consisted of only

four questions by trial defense counsel, focusing on

why TSgt JG told civilian law enforcement, when they

were responding to an alleged child abuse incident,

that AB was a shoplifter, a runaway, and maintained

two different Facebook pages to facilitate

communications with her boyfriend. The manifest

purpose of this brief redirect examination was to

reframe trial counsel’s insinuations that TSgt JG was

intending to smear AB’s character with the civilian

law enforcement.

In support of his assignment of error, Appellant

offers a sworn declaration by TSgt JG asserting that

civilian trial defense counsel was aware of but failed

to offer the following favorable information during

TSgt JG’s redirect examination: (1) there was no basis

for the drowning comment, (2) she did not suggest

Appellant give up custody of one of his children, and

(3) AB was upset because she was not a flower girl at

Appellant’s and TSgt JG’s wedding.

To provide additional facts for consideration in

Appellant’s assignment of error on this issue, this

court ordered affidavits from Appellant’s trial defense

counsel. Both civilian and military trial defense

counsel submitted responsive affidavits that align in

their recall of pretrial interviews and trial events

which ultimately informed civilian trial defense

counsel’s decision to keep his redirect examination

limited. Justifying his decisions as to how he

conducted TSgt JG’s redirect examination, civilian

trial defense counsel explained that he adopted “a less

45a

is more” approach during redirect, steering clear of

highlighting

trial

counsel

cross-examination

questions because TSgt JG’s answers during cross

examination either denied the premise of trial

counsel’s question (i.e., she denied she was drunk and

stated previously that she only had one drink at the

Santa Maria Inn; she denied she urged Appellant to

relinquish custody of his child) or professed a lack of

recollection on a particular point (i.e., did not recall

ever making the “drown babies in the bathtub”

comment). To sum up the defense strategy vis-a-vis

TSgt JG, military trial defense counsel’s sworn

declaration states:

[W]e focused on a redirect that directed their

attention back to the ultimate benefits of her

direct: [AB]’s history of false allegations and

anger at the time that formed [AB]’s motive to

fabricate. Thus, our strategy for redirect

generally was to get TSgt JG off the stand

without reinforcing the issues raised on cross,

instead refocusing the panel members on the

history of false allegations.

2. Law

The Sixth Amendment13 guarantees an accused

the right to effective assistance of counsel. United

States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001). In

assessing the effectiveness of counsel, we apply the

standard set out in Strickland v. Washington, 466

U.S. 668, 687 (1984), and the presumption of

competence as stated in United States v. Cronic, 466

U.S. 648, 658 (1984). See Gilley, 56 M.J. at 124

(citation omitted). We review allegations of ineffective

13 U.S. CONST. amend. VI.

46a

assistance de novo. United States v. Palik, 84 M.J.

284, 288 (C.A.A.F. 2024) (citing United States v.

Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007)).

We utilize the following three-part test to

determine whether the presumption of competence

has been overcome:

Are the appellant’s allegations true; if so,

“is there a reasonable explanation for counsel’s

actions”?

(1)

If the allegations are true, did trial defense

counsel’s level of advocacy “fall measurably

below the performance . . . [ordinarily expected]

of fallible lawyers”?

(2)

If trial defense counsel were deficient, is

there “a reasonable probability that, absent the

errors,” there would have been a different

result?

(3)

United States v. Gooch, 69 M.J. 353, 362 (C.A.A.F.

2011) (alteration and omission in original) (quoting

United States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991)).

The burden is on the appellant to demonstrate

both deficient performance and prejudice. United

States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012)

(citation omitted). “An appellate court’s evaluation of

attorney performance is made from counsel’s

perspective at the time of the conduct in question.”

United States v. Marshall, 45 M.J. 268, 270 (C.A.A.F.

1996) (citing Strickland, 466 U.S. at 689). “[C]ourts

‘must indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable

professional assistance.’” Datavs, 71 M.J. at 424

(quoting Strickland, 466 U.S. at 689) (additional

47a

citation omitted). We will not second-guess reasonable

strategic or tactical decisions by trial defense counsel.

United States v. Mazza, 67 M.J. 470, 475 (C.A.A.F.

2009) (citation omitted). “Where . . . an appellant

attacks the trial strategy or tactics of the defense

counsel, the appellant must show specific defects in

counsel’s performance that were ‘unreasonable under

prevailing professional norms.’” Id. (quoting United

States v. Perez, 64 M.J. 239, 243 (C.A.A.F. 2006)). In

assessing claims of ineffective assistance of counsel,

we do not look at the success of the defense attorney’s

strategy “but rather whether counsel made an

objectively reasonable choice in strategy from the

alternatives available at the time.” United States v.

Dewrell, 55 M.J. 131, 136 (C.A.A.F. 2001) (citation

omitted). In making this determination, courts must

be “highly deferential” to trial defense counsel and

make every effort “to eliminate the distorting effects

of hindsight, to reconstruct the circumstances of

counsel’s challenged conduct, and to evaluate the

conduct from counsel’s perspective at the time.”

Strickland, 466 U.S. at 689.

With respect to prejudice, a “reasonable

probability” of a different result is “a probability

sufficient to undermine confidence in the outcome” of

the trial. Datavs, 71 M.J. at 424 (quoting Strickland,

466 U.S. at 694) (additional citation omitted). Which

is to say, “[i]t is not enough show that the errors had

some conceivable effect on the outcome;” instead,

“[c]ounsel’s errors must be so serious as to deprive the

defendant of a fair trial, a trial whose result is

reliable.” Id. (citations omitted).

48a

3. Analysis

Here, Appellant premises his claim of ineffective

assistance on five discrete areas, assigning fault to his

civilian trial defense counsel for not addressing these

matters during TSgt JG’s redirect examination: (1)

clarifying the amount of alcohol that TSgt JG drank

at the Santa Maria Inn; (2) refuting the alleged

comment about drowning children in a bathtub; (3)

challenging whether TSgt JG suggested Appellant

give up custody of one of his children; (4) highlighting

that AB was allegedly upset that she was not a flower

girl at Appellant’s wedding to TSgt JG; and (5) AB’s

alleged motive to fabricate based upon Appellant

declining to co-sign a car loan for her.

Applying the three-prong analysis set forth in

Gooch, we find Appellant’s trial defense counsel were

not ineffective in making a tactical decision to ask

particular follow-up questions and avoid others

during TSgt JG’s redirect examination at trial.

The defense team’s expressed purpose for calling

TSgt JG was to cast doubt on AB’s credibility. In his

brief, Appellant attempts to analogize his case to our

superior court’s recent decision in United States v.

Palik, which held trial defense counsel there were

ineffective for failing to bring an R.C.M. 914 motion

when there was “tremendous upside and virtually no

downside” to such a tactic. 84 M.J. 284, 291 (C.A.A.F.

2024). This is an inapt comparison. Unlike Palik, here

trial defense counsel undertook a rational cost-benefit

analysis and declined to ask additional questions

because of the danger of Government rebuttal with

damning evidence and admissions from Appellant’s

video-recorded OSI interviews, heretofore not placed

into evidence by the Government. When trial defense

49a

counsel weighed that risk against the futility of

highlighting cross-examination questions where TSgt

JG had no further substantive information to explain

or retract her answers on cross-examination—he

declined what he deemed to be a counter-productive

endeavor. The fact that trial defense counsel’s

strategy might have proved unsuccessful is not

dispositive to whether trial defense counsel was

ineffective. See Dewrell, 55 M.J. at 136.

Here, TSgt JG had either denied or professed a

lack of memory to what were arguably the most

potentially damaging of trial counsel’s crossexamination questions: i.e., her allegedly urging

Appellant to relinquish custody of his child and the

“bathtub” comment. As a matter of law, there were no

facts on the record supporting either of those

assertions. Indeed, the military judge had given court

members an instruction telling them as much during

TSgt JG’s testimony. Under the circumstances, while

trial defense counsel could not “unring the bell” from

trial counsel’s cross-examination questions, they were

certainly not deficient in declining to ring it again,

particularly where the military judge had told the

members that there was nothing to hear in the first

place.

Similarly, based upon their pretrial investigations,

trial defense counsel assessed that pursuing

additional examination in furtherance of what they

judged to be exceedingly weak potential motives to

fabricate would have cast them as unreasonable.

According to their affidavits, both civilian and

military trial defense counsel judged that this line of

questioning would damage the credibility of the

Defense. In short, trial defense counsel believed that

it would strain the imagination to float a theory that

50a

AB would fabricate allegations against her father for

want of being a flower girl at a wedding ceremony she

cared little about, or because of Appellant’s refusal to

co-sign a car loan for her in 2022 retroactively

impacted her reports against him in August and

November 2017. Instead, they made a strategic

decision to limit their redirect so that the court

members could focus on the target they intended them

to focus on thanks to TSgt JG’s testimony—AB’s

credibility or lack thereof. We decline to second guess

a tactical decision informed by adequate pretrial

preparation simply because it may not have proven

successful.

Because we conclude Appellant has failed to

demonstrate that his trial defense counsel’s

representation of him was “measurably below the

performance . . . [ordinarily expected] of fallible

lawyers,” Gooch, 69 M.J. at 362 (citation omitted),

Appellant also failed to satisfy his burden for this

assignment of error and we need not proceed to a

prejudice analysis. Nonetheless, in an abundance of

caution, even if we had concluded that Appellant’s

trial defense counsel’s tactical decision as to the best

methods of redirecting a problematic witness was

ineffective, Appellant still suffered no prejudice. Here,

the primary evidence convicting Appellant was not

TSgt JG’s credibility or lack thereof, but AB’s

credibility, which, while challenged repeatedly by

Appellant at trial, was ultimately corroborated by

Appellant’s own statements in his pretext phone call

with AB and in his social media messages with her. It

is he who affirmed that the “flash the world” and “I

toe’d you so” games both happened and that these

“games” were wrong. It is he who conceded in his

messages with AB that he had “anger issues.”

51a

Moreover, the evidence supporting the battery

specifications against Appellant was corroborated by

EB’s prior recollection recorded and by the physical

evidence of a confrontation observed on AB’s face and

neck by the Santa Maria Inn patrons and responding

civilian law enforcement officials. This is not a case

where more questioning of TSgt JG—a witness with

an obvious interest in the outcome of the case—on

what amounts to tangential topics, creates the

reasonable probability of a different verdict or

sentence at trial.

D. Excessive Post-Trial Delay

In review of Appellant’s case, we note the record of

trial was originally docketed with this court on 8

February 2023. Appellant requested, and was granted

over the Government’s opposition, 13 enlargements of

time (amounting to 480 days or 16 months of total

delay) to file his assignments of error brief, before

filing his brief on 3 June 2024. The Government filed

its answer after requesting and receiving, over

defense opposition, one enlargement of time to secure

responsive affidavits from trial defense counsel to

answer Appellant’s assignment of error raising

ineffective assistance of counsel. The Government

filed its answer brief on 5 August 2024. Appellant then

filed his reply brief on 22 August 2024 after requesting

and receiving a further enlargement of time of 7 days.

This court issued its opinion in approximately 150

days after receiving Appellant’s reply brief. In sum a

total of 24 months elapsed between the docketing of

Appellant’s case and the issuance of this opinion.

Appellant has not asserted his right to speedy

appellate review.

52a

1. Law

“[C]onvicted servicemembers have a due process

right to timely review and appeal of courts-martial

convictions.” United States v. Moreno, 63 M.J. 129,

132 (C.A.A.F. 2006) (citation omitted). In Moreno, the

CAAF established a presumption of facially

unreasonable delay “where appellate review is not

completed and a decision is not rendered within

eighteen months of docketing the case before the

Court of Criminal Appeals.” Id. at 142. Where there is

a facially unreasonable delay, we examine the four

factors set forth in Barker v. Wingo, 407 U.S. 514, 530

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

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

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

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

omitted).

The CAAF identified three types of cognizable

prejudice for purposes of an appellant’s due process

right to timely post-trial review: (1) oppressive

incarceration; (2) “particularized” anxiety and concern

“that is distinguishable from the normal anxiety

experienced by prisoners awaiting an appellate

decision;” and (3) impairment of the appellant’s

grounds for appeal or ability to present a defense at a

rehearing. Id. at 138–40 (citations omitted). Where

there is no qualifying 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 review de novo an appellant’s

entitlement to relief for post-trial delay. United States

v. Livak, 80 M.J. 631, 633 (A.F. Ct. Crim. App. 2020)

(citing Moreno, 63 M.J. at 135).

53a

2. Analysis

Over 18 months elapsed since Appellant’s record of

trial was originally docketed with this court.

Therefore, under Moreno, there is a facially

unreasonable delay. Although we note the 18-month

threshold was exceeded by about six months, under

similar circumstances where that delay was primarily

occasioned by extended periods of defense-requested

delay, we have held that such delays are not

“excessively long.” See United States v. Washington,

No. ACM 39761, 2021 CCA LEXIS 379, at *109 (A.F.

Ct. Crim. App. 30 Jul. 2021) (unpub. op.) (holding that

23 months from case docketing to issuance of the

court’s opinion was “not excessively long”).

Accordingly, we have considered the Barker factors

and find no violation of Appellant’s due process rights.

Appellant has not specifically alleged cognizable

prejudice, and we do not find any at this stage.

Regarding oppressive incarceration, we recognize

Appellant entered confinement on 29 September 2022

and to date Appellant has not entered any request for

speedy appellate review nor raised any particularized

anxiety or concern as a consequence of the pendency

of appellate proceedings before this court.

Accordingly, we find no prejudice from any

unreasonable delay. Absent prejudice, we find the

delay involved in Appellant’s case has not been so

egregious as to adversely affect the perception of the

military justice system. The record of Appellant’s

court-martial is substantial, including nearly 800

pages of written transcript, and the delay in

adjudicating Appellant’s appeal is primarily due to

Appellant’s own motions for enlargements of time.

Moreover, both parties in this case requested and

were granted motions to exceed page limits in their

54a

briefs, resulting in the court reviewing Appellant’s 73page initial brief, the Government’s 77-page answer

brief, and Appellant’s 39-page reply brief. The court

accorded these voluminous filings the requisite time

and attention they deserved under the circumstances.

Accordingly, we find no violation of Appellant’s due

process rights. Furthermore, recognizing our

authority under Article 66(d), UCMJ, we have also

considered whether relief for excessive post-trial delay

is appropriate in this case 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, 742

(A.F. Ct. Crim. App. 2015), we conclude no such relief

is warranted.

III. CONCLUSION

The findings and sentence as entered are correct in

law and fact, and no error materially prejudicial to the

substantial rights of Appellant occurred. Articles

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

Accordingly, the findings and sentence are

AFFIRMED.14

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court

We note that appellate review of Appellant’s case is still

ongoing and pending a potential reconsideration by this court, or

Article 67, UCMJ, 10 U.S.C. § 867, review by our superior court.

Accordingly, because the case remains inchoate, the military

judge’s conditional dismissal of Specification 1 of Charge II

remains inchoate. See Article 71, UCMJ, 10 U.S.C. § 871.

14

55a

United States Court of Appeals

for the Armed Forces

Washington, D.C.

United States,

Appellee

v.

USCA Dkt. No. 25-01224/AF

Crim.App. No. 40561

ORDER DENYING PETITION

Johnathon T.

Hagen,

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 6th day of

October, 2025,

ORDERED:

That the petition is hereby denied.

For the Court,

/s/

cc:

Malcolm H. Squires, Jr.

Clerk of the Court

The Judge Advocate General of the Air Force

Appellate Defense Counsel (Sullivan)

Appellate Government Counsel (Payne)

56a

U NITED S TATES A IR F ORCE

C OURT OF C RIMINAL A PPEALS

________________________

No. ACM 40561

________________________

UNITED STATES

Appellee

v.

Johnathon T. HAGEN

Staff Sergeant (E-5), U.S. Air Force, Appellant

________________________

Appeal from the United States Air Force Trial

Judiciary

Decided 28 May 2025

________________________

Military Judge: Sterling C. Pendleton.

Sentence: Sentence adjudged 27 July 2023 by GCM

convened at Ramstein Air Base, Germany. Sentence

entered by military judge on 5 September 2023:

Dishonorable discharge, confinement for 14 months,

reduction to E-1, and a reprimand.

For Appellant: Major Samantha P. Golseth, USAF.

For Appellee: Lieutenant Colonel J. Pete Ferrell,

USAF; Lieutenant Colonel Jenny A. Liabenow, USAF;

Lieutenant Colonel G. Matt Osborn, USAF; Major

Brittany M. Speirs, USAF; Captain Heather R.

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Bezold, USAF; Captain Morgan L. Brewington, USAF;

Mary Ellen Payne, Esquire.

Before RICHARDSON, MASON,

Appellate Military Judges.

and KEARLEY,

Judge MASON delivered the opinion of the court, in

which Senior Judge RICHARDSON and Judge

KEARLEY joined.

________________________

This is an unpublished opinion and, as such, does

not serve as precedent under AFCCA Rule of

Practice and Procedure 30.4.

________________________

MASON, Judge:

A general court-martial composed of officer

members convicted Appellant, contrary to pleas, of

one specification of possession of child pornography

and one specification of viewing child pornography, in

violation of Article 134, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 934.1 Appellant was

sentenced to a dishonorable discharge, confinement

for 14 months, reduction in grade to E-1, and a

reprimand. Appellant requested deferment of the

reduction in rank, confinement, and automatic

forfeitures. The convening authority denied

Appellant’s requested deferments, took no action on

the findings, and approved the sentence in its

entirety.

1 All references to the punitive articles of the UCMJ, Rules for

Courts-Martial, and Military Rules of Evidence (Mil. R. Evid.)

are to the Manual for Courts-Martial, United States (2019 ed.).

58a

Appellant raises 14 issues on appeal which we

have rephrased and reordered: (1) whether the

convening authority’s selection of potential court

members was proper; (2) whether the military judge

abused his discretion when he admitted a report from

the National Center for Missing and Exploited

Children (NCMEC) over trial defense counsel’s

objection; (3) whether the application of 18 U.S.C.

§ 922 to Appellant warrants correction; (4) whether

the guilty findings are legally and factually sufficient;

(5) whether the military judge abused his discretion in

denying Appellant’s motion to dismiss or abate the

proceedings due to investigators not making a timely

request of a private entity to preserve potential

evidence; (6) whether the military judge abused his

discretion in denying Appellant’s motion to suppress

Appellant’s statements to the investigators; (7)

whether the military judge abused his discretion in

denying Appellant’s motion to exclude character

evidence; (8) whether the military judge abused his

discretion in denying Appellant’s motion to compel an

expert pediatrician; (9) whether the military judge

abused his discretion in denying Appellant’s motion to

compel discovery; (10) whether the military judge

abused his discretion in denying Appellant’s motion

asserting an unreasonable multiplication of charges;

(11) whether the military judge abused his discretion

in permitting Appellant’s supervisor to testify in

sentencing about Appellant’s pretrial statements

related to potential punishment by the court-martial;

(12) whether the military judge abused his discretion

in declining to consider a statement in one of

Appellant’s sentencing character letters; (13) whether

59a

the record is complete without the required

documents from the Article 30a, UCMJ, 10 U.S.C.

§ 830a, proceedings; and (14) whether Appellant is

entitled to relief for post-trial processing delay.2

We have carefully considered Appellant’s

allegations of error in issue (3) as well as issues (5)

through (12) and find they do not require discussion

or relief. See United States v. Guinn, 81 M.J. 195, 204

(C.A.A.F. 2021) (citing United States v. Matias, 25

M.J. 356, 361 (C.M.A. 1987)).

Regarding issue (13), the original record of trial

(ROT) submitted to the court neglected to include

documents related to the Article 30a, UCMJ,

proceedings in this case. On 18 February 2025,

Appellee moved to attach the missing documents to

the record. We granted that motion. As the ROT now

has these documents attached, Appellant is not

prejudiced and therefore, not entitled to relief on this

issue.3

2 Appellant raises issues (4)–(14) pursuant to United States v.

Grostefon, 12 M.J. 431 (C.M.A. 1982).

3 The ROT contained a compact disc purporting to be Prosecution

Exhibit 3, the recording of Appellant’s interview with the Office

of Special Investigations. However, the originally included disc

did not include any digital files. We issued a show cause order

and as a result, the Government moved to attach two compact

discs containing a recording of the interview and the

accompanying declaration. We granted that motion. Because the

recorded interview is now correctly placed on a compact disc and

is available, Appellant is not prejudiced by the initial failure to

include the recording.

60a

As to the remaining issues, we find no error that

materially prejudiced Appellant’s substantial rights

and affirm the findings and sentence.

I. Background

In December 2021, an Internet cloud storage

company, Dropbox, forwarded to the NCMEC multiple

digital files that were uploaded to their service from a

certain account on or about 11 October 2021. As a

result of this report, NCMEC sent a notification to

German law enforcement officials. Those law

enforcement officials notified the Air Force Office of

Special Investigations (OSI) at Ramstein Air Base,

Germany. Subsequent investigation by OSI agents

revealed that Appellant was the suspected owner of

the account.

In early January 2022, OSI agents and German

law enforcement came to Appellant’s workplace. They

conducted a field interview of Appellant asking if he

was involved in child pornography. Appellant initially

denied having anything to do with child pornography.

The German investigator confronted Appellant with

the evidence they had received so far, and Appellant

admitted involvement.

Investigators proceeded to search Appellant’s

vehicle and his office. After those searches were

completed, they searched his residence. At some point

following the searches, investigators conducted a sitdown interview with Appellant. During this

interview, Appellant provided detailed explanations

about how he became involved with viewing and

61a

possessing child pornography as well as how he

obtained, viewed, and possessed this material.

II. Discussion

A. Court Member Selection

1. Additional Background

Before convening Appellant’s court-martial, the

convening authority was provided with the names of

34 potential court-martial members. Of those 34, 9

had names that suggested they may be female. The

convening authority detailed 21 of the 34 personnel to

serve as members on Appellant’s court-martial.

Included among the 21 members were 8 members

whose names suggested they may be female. The

other 13 members had traditionally male names. In

selecting the members to serve on the panel, the

convening authority’s memorandum stated, “[B]y

reason of their age, education, training, experience,

length of service, and judicial temperament under

Article 25, UCMJ, [10 U.S.C. § 825,] I nominate the

following individuals to serve as members in

[Appellant’s court-martial].” The detailing of these

members was memorialized on the convening order,

Special Order A-41.

Prior to the court-martial, two amendments to the

convening order were issued, Special Orders A-46 and

A-47. As a result of these amendments, the venire

consisted of 14 members, including five with

traditionally female names.

Following voir dire at trial, without objection, trial

counsel challenged two members, one with a

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traditionally male name and one with a traditionally

female name. Those challenges were granted. Trial

defense counsel challenged one additional member;

that member had a traditionally male name. Trial

counsel declined to exercise a peremptory challenge.

Trial defense counsel utilized their peremptory

challenge. The challenged member had a traditionally

male name. The final panel composition was four

members with traditionally male names and four

members with traditionally female names.

The Defense did not object to the convening

authority’s court member selection process prior to his

appeal before this court.

2. Law

Court-martial composition issues not raised at

trial are forfeited and reviewed on appeal for plain

error. United States v. King, 83 M.J. 115, 120–21

(C.A.A.F. 2023), cert. denied, 144 S. Ct. 190 (2023).

Under the plain error standard of review, the

“[a]ppellant bears the burden of establishing: (1) there

is error; (2) the error is clear or obvious; and (3) the

error materially prejudiced a substantial right.”

United States v. Robinson, 77 M.J. 294, 299 (C.A.A.F.

2018) (citation omitted). In undertaking a plain error

analysis, we “consider whether the error is obvious at

the time of appeal, not whether it was obvious at the

time of the court-martial.” United States v. Harcrow,

66 M.J. 154, 159 (C.A.A.F. 2008).

“When convening a court-martial, the convening

authority shall detail as members thereof such

members of the armed forces as, in his opinion, are

63a

best qualified for the duty by reason of age, education,

training, experience, length of service, and judicial

temperament.” Article 25(e)(2), UCMJ, 10 U.S.C.

§ 825(e)(2).

In United States v. Crawford, the United States

Court of Military Appeals held the intentional

selection of African American servicemembers to

serve on courts-martial in order to ensure fair

representation of the community was consistent with

constitutional guarantees of equal protection. 35

C.M.R. 3, 13 (C.M.A. 1964); see also United States v.

Smith, 27 M.J. 242, 249 (C.M.A. 1988) (“[A]

commander is free to require representativeness in

his court-martial panels and to insist that no

important segment of the military community—such

as blacks, Hispanics, or women—be excluded from

service on court-martial panels.”).

In Batson v. Kentucky, the United States Supreme

Court held a criminal defendant “ha[s] the right to be

tried by a jury whose members are selected pursuant

to non-discriminatory criteria,” and in particular “the

Equal Protection Clause[4] forbids the prosecutor to

challenge potential jurors solely on account of their

race” through the exercise of peremptory challenges.

476 U.S. 79, 85–86, 89 (1986).

In United States v. Jeter, the United States Court

of Appeals for the Armed Forces (CAAF) overruled

Crawford in light of Batson, holding “[i]t is

impermissible to exclude or intentionally include

4 U.S. CONST. amend. XIV.

64a

prospective members based on their race.” 84 M.J. 68,

73 (C.A.A.F. 2023). The CAAF explained, “whenever

an accused makes a prima facie showing that race

played a role in the panel selection process at his

court-martial, a presumption will arise that the panel

was not properly constituted,” which the Government

may then attempt to rebut. Id. at 70. In Jeter, “trial

defense counsel challenged the makeup of the panel,

citing a ‘systematic exclusion of members based on

race and gender.’ The military judge noted that ‘[i]t

appears that [the panel] is all white men’ . . . .” Id. at

71 (alterations in original). On appeal, the CAAF

found the appellant had made a “prima facie showing

that gives rise to a presumption that race was allowed

to enter the selection process.” Id. at 74. In support of

this conclusion, the CAAF cited “racial identifiers”

that were included in court member questionnaires

provided to the convening authority, as well as “other

evidence before the [Courts of Criminal Appeals

(CCA)],” and “the command’s understandable belief

that the Crawford case . . . was still good law.” Id.

Among this other evidence before the CCA was

information that “two African American members on

the original convening order were subsequently

removed pursuant to the first amendment to the

convening order; and three other courts-martial with

African American accuseds were convened by this

convening authority before all-white panel members.”

Id. In addition, the CCA obtained declarations from

the convening authority and staff judge advocate, but

“for all intents and purposes those affidavits simply

reflected that they could not recall how the venire

panel was chosen.” Id. Under these circumstances, the

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CAAF found an “unrebutted inference that

[a]ppellant’s constitutional right to equal protection

under the law was violated when the acting convening

authority presumptively used a race-conscious

selection process for panel members.” Id.

3. Analysis

Because Appellant did not object to the convening

authority’s selection of court members at trial, we

review for plain error. See King, 83 M.J. at 120–21.

For the reasons stated below, we conclude Appellant

has failed to demonstrate plain error.

Appellant claims that he has made a prima facie

showing that gives rise to a presumption that

impermissible criteria was allowed to enter the court

member selection process. Appellant claims that the

documentation regarding the selection of court

members fails to rebut this presumption because

“none of it indicates the convening authority did not

consider gender of the potential members.”

As an initial matter, although Jeter specifically

addressed racial discrimination, we assume for

purposes of our analysis the same rationale applies to

the selection or exclusion of members based on gender.

This question was addressed in J.E.B. v. Ala. ex rel.

T.B., where the Supreme Court held that “gender—

like race—is an unconstitutional proxy for juror

competence and impartiality.” 511 U.S. 127, 128

(1994); see also United States v. Patterson, No. ACM

40426, 2024 CCA LEXIS 399, at *20–21 (A.F. Ct.

Crim. App. 27 Sep. 2024) (unpub. op.) (holding that

66a

“J.E.B. essentially put gender

constitutional footing as race”).

on

the

same

We are not persuaded Appellant has met his

burden to demonstrate “clear” or “obvious” error in the

selection process. The Government argues that

providing the convening authority some professional

and personal information about potential court

members, including race and gender, does not in itself

constitute a prima facie showing that the convening

authority improperly relied on race or gender in

selecting members under the plain error standard of

review. We agree. As our superior court stated in

Jeter, “racial identifiers are neutral, [although]

capable of being used for proper as well as improper

reasons.” 84 M.J. at 74 (citing United States v. Loving,

41 M.J. 213, 285 (C.A.A.F. 1994)).

The circumstances in Jeter are distinguishable in

several significant ways. First, and importantly, the

appellant in Jeter did not forfeit the issue but

challenged the selection process at trial, alleging

“systematic exclusion of members based on race and

gender.” 84 M.J. at 71. Moreover, the record in Jeter

indicated the panel was composed entirely of “white

men.” Id. Two African American members on the

original convening order were subsequently removed

from the panel by the convening authority. Id. at 74.

We are not persuaded that there is anything in the

apparently routine replacement of potential court

members through the issued amendments that

indicates a systematic exclusion of members based on

gender. Second, in Jeter “three other courts-martial

with African American accuseds were convened by

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[the same] convening authority before all-white panel

members.” Id. The CAAF concluded these

circumstances in Jeter, coupled with the provision of

racially identifying information to the convening

authority, were sufficient for a prima facie showing

under ordinary standards of review. In the instant

case, we do not have equivalent circumstances.

Furthermore, we decline to expand and apply the

holding in Jeter in such a way that could undermine

the applicable federal statute. Essentially, Appellant

is arguing that a convening authority cannot even

know the name of any potential court member prior to

making selections of the court members as such

names could potentially reveal their genders.

Practically, such a limitation upon convening

authorities could prevent their ability to properly

apply the criteria mandated for consideration by

Article 25, UCMJ. For example, it would be quite a

challenge for a convening authority to determine

whether a potential court member, “in his opinion, [is]

best qualified for the duty by reason of . . . judicial

temperament” if he or she cannot know who they are

evaluating. Article 25(e)(2), UCMJ, 10 U.S.C.

§ 825(e)(2).

Appellant has the burden to demonstrate “clear” or

“obvious” error. He has not met this burden. Based on

the facts of this case, we conclude Appellant is not

entitled to relief on this issue.

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B. NCMEC CyberTipline Report

1. Additional Background

On 12 October 2021, Dropbox submitted

information to NCMEC via the “CyberTipline.”

Information submitted included: Dropbox submitter

information; where to find Dropbox’s terms of service;

“incident information” such as date and time of the file

uploads, email address, screen name, user ID and four

IP addresses; information related to five digital files

including names, identifying information and yes/no

indications to whether Dropbox viewed entire

contents of the uploaded files, whether the contents of

the files were publicly available and whether the

metadata was provided separately by Dropbox; and

information related to the country, region, city, and

Internet service provider of the IP addresses noted

earlier in the report. In response to this submission

and based on the information provided, NCMEC

compiled a CyberTipline report and forwarded the

report to law enforcement.5

In a pretrial motions hearing, trial defense counsel

moved to suppress the CyberTipline report. The

military judge received evidence and heard argument

on the motion. He found that “NCMEC staff cannot

alter or change information submitted by a reporting

party to the CyberTipline.”

Trial counsel submitted a business record affidavit

from the records custodian from Dropbox. The

5 Additional information was contained in the report, but as this

information was redacted from the admitted exhibit, we decline

to enumerate it here.

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custodian affirmed that the information in Dropbox’s

CyberTip was accurate and met the other

requirements for admission pursuant to Mil. R. Evid.

803(6).

The military judge denied the motion to suppress,

finding that the information referenced above was

machine-generated and therefore not hearsay, nor

testimonial in nature.

At trial, the CyberTipline report was admitted. No

representative from NCMEC or Dropbox testified.

2. Law

“In all criminal prosecutions, the accused shall

enjoy the right . . . to be confronted with the witnesses

against him.” U.S. CONST. amend. VI. “Testimonial

statements of witnesses absent from trial have been

admitted only where the declarant is unavailable, and

only where the defendant has had a prior opportunity

to cross-examine.” Crawford v. Washington, 541 U.S.

36, 59 (2004) (footnote omitted).

“[A] statement is testimonial if ‘made under

circumstances which would lead an objective witness

reasonably to believe that the statement would be

available for use at a later trial.’” United States v.

Sweeney, 70 M.J. 296, 301 (C.A.A.F. 2011) (quoting

United States v. Blazier, 68 M.J. 439, 442 (C.A.A.F.

2010)). “[M]achine-generated data and printouts are

not statements and thus not hearsay -- machines are

not declarants -- and such data is therefore not

‘testimonial.’” United States v. Blazier, 69 M.J. 218,

224 (C.A.A.F. 2010) (footnote and citations omitted).

Chain of custody documents may also be non-

70a

testimonial. United States v. Tearman, 72 M.J. 54, 61

n.13 (C.A.A.F. 2013).

“Business and public records are generally

admissible absent confrontation not because they

qualify under an exception to the hearsay rules, but

because—having been created for the administration

of an entity’s affairs and not for the purpose of

establishing or proving some fact at trial—they are

not testimonial.” Melendez-Diaz v. Massachusetts, 557

U.S. 305, 324 (2009).

“To rank as testimonial, a statement must have a

primary purpose of establishing or proving past

events potentially relevant to later criminal

prosecution.” Bullcoming v. New Mexico, 564 U.S. 647,

659 n.6 (2011) (internal quotation marks and citations

omitted).

When deciding whether a statement is testimonial,

we look objectively at the totality of the circumstances

and particularly consider three factors to guide this

contextual analysis: (1) whether the statement was

“elicited by or made in response to law enforcement or

prosecutorial inquiry;” (2) whether the statement

involved “more than a routine and objective

cataloguing of unambiguous factual matters;” and (3)

whether “the primary purpose for making or eliciting

the statement[ ] was the production of evidence with

an eye toward trial.” United States v. Rankin, 64 M.J.

348, 352 (C.A.A.F. 2007); see also United States v.

Squire, 72 M.J. 285, 288 (C.A.A.F. 2013) (citations

omitted).

71a

“The proponent of the evidence has the burden of

demonstrating that the evidence is admissible.”

United States v. Finch, 79 M.J. 389, 394 (C.A.A.F.

2020).

We review a military judge’s ruling on the

admission or exclusion of evidence for an abuse of

discretion. United States v. Katso, 74 M.J. 273, 278

(C.A.A.F. 2015) (footnote omitted). Whether a

statement is testimonial for purposes of the Sixth

Amendment is a question of law we review de novo.

United States v. Baas, 80 M.J. 114, 120 (C.A.A.F.

2020) (citation omitted).

Where a confrontation clause objection is

preserved and we find error, we will grant relief

unless the error was harmless beyond a reasonable

doubt, considering such factors as: (1) “the importance

of the unconfronted testimony in the prosecution’s

case;” (2) “whether that testimony was cumulative;”

(3) “the existence of corroborating evidence;” (4) “the

extent of [cross-examination] permitted;” and (5) “the

strength of the prosecution’s case.” Sweeney, 70 M.J.

at 306 (citing Delaware v. Van Arsdall, 475 U.S. 673,

683 (1986)).

3. Analysis

Appellant challenges the military judge’s ruling

denying the motion to suppress the CyberTipline

report. He argues that the report contained

testimonial hearsay and that its admission created

prejudicial error. We disagree.

We begin this analysis mindful of the United

States Supreme Court’s recognition that “[b]usiness

72a

and public records are generally admissible absent

confrontation not because they qualify under an

exception to the hearsay rules, but because—having

been created for the administration of an entity’s

affairs and not for the purpose of establishing or

proving some fact at trial—they are not testimonial.”

Melendez-Diaz, 557 U.S. at 324. Here, the military

judge correctly found that this report was a business

record and admissible as such. Our review of the

record and of the report indicate that nearly all of the

information was automatically generated and, once

generated, unmodifiable by NCMEC personnel. The

remaining information was simply not testimonial,

but rather routine information commonly associated

with chain-of-custody type of documentation.

Tearman, 72 M.J. at 61 n.13.

The singular exception to this conclusion may be

the information associated with the digital files:

“Were the contents of uploaded file publicly available?

Yes.” Appellant correctly notes that in a recent case,

this panel of the court found this information in a

NCMEC CyberTipline report testimonial. United

States v. Goodwater, No. ACM 40304 (f rev), 2024 CCA

LEXIS 493, at *9 (A.F. Ct. Crim. App. 22 Nov. 2024)

(unpub. op.). However, Goodwater is distinguishable

from Appellant’s case. First, in Goodwater, the trial

counsel, as the proponent of the evidence, failed to

meet their burden to establish that this information

was not testimonial. They failed to elicit evidence that

NCMEC personnel did not have the ability to modify

the information. Second, in Goodwater, the appellant

was convicted of distributing child pornography based

on a theory that the files were made publicly

73a

available. Yet, the Government failed to produce a live

witness to prove this determinative fact. Rather, they

relied heavily on the CyberTipline report’s note that

the files were publicly available. Here, Appellant was

not charged with distribution. Thus, whether the files

were or were not publicly available was wholly

irrelevant to the case in findings.6 Here, the military

judge did not abuse his discretion when he determined

that this statement was not testimonial.

Assuming arguendo that any of the information

provided in the CyberTipline report was testimonial,

we have no problem concluding that the admission

was harmless beyond a reasonable doubt. As noted

below addressing the factual and legal sufficiency of

the convictions, the other evidence admitted in this

case was overwhelming. The report itself was

unimportant in light of that remaining evidence.

Some of it was cumulative to Appellant’s detailed

confession and the forensic findings on Appellant’s

devices. Moreover, trial defense counsel was provided

extensive opportunity

to

cross-examine the

investigator and digital forensics examiner in the

case. In sum, we are convinced beyond a reasonable

doubt that the CyberTipline did not contribute to

Appellant’s conviction. Van Arsdall, 475 U.S. at 683.

6 This fact could be relevant in the presentencing proceedings.

However, that does not support a conclusion of harm to this

Appellant as the Confrontation Clause does not apply to

presentencing proceedings in a non-capital court-martial. United

States v. McDonald, 55 M.J. 173, 174 (C.A.A.F. 2001).

74a

C. Legal and Factual Sufficiency

1. Law

We review issues of legal and factual sufficiency de

novo. United States v. Washington, 57 M.J. 394, 399

(C.A.A.F. 2002) (citation omitted). “Our assessment of

legal and factual sufficiency is limited to the evidence

produced at trial.” United States v. Rodela, 82 M.J.

521, 525 (A.F. Ct. Crim. App. 2021) (citation omitted).

“The test for legal sufficiency is whether, after

viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a

reasonable doubt.” United Robinson, 77 M.J. at 297–

98 (citation omitted). “[T]he term ‘reasonable doubt’

does not mean that the evidence must be free from any

conflict . . . .” United States v. King, 78 M.J. 218, 221

(C.A.A.F. 2019) (citations 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).

Thus, “[t]he standard for legal sufficiency involves a

very low threshold to sustain a conviction.” King, 78

M.J. at 221 (alteration in original) (citation omitted).

Ultimately, this court’s legal sufficiency analysis

“gives full play to the responsibility of the trier of fact

fairly to resolve conflicts in the testimony, to weigh

the evidence, and to draw reasonable inferences from

basic facts to ultimate facts.” United States v. Oliver,

70 M.J. 64, 68 (C.A.A.F. 2011) (quoting Jackson v.

Virginia, 443 U.S. 307, 319 (1979)).

75a

For trials involving any convicted offenses

committed before January 2021, “[t]he test for factual

sufficiency is ‘whether, after weighing the evidence in

the record of trial and making allowances for not

having personally observed the witnesses, [we are]

convinced of the [appellant]’s guilt beyond a

reasonable doubt.’” Rodela, 82 M.J. at 525 (third

alteration in original) (quoting United States v.

Turner, 25 M.J. 324, 325 (C.M.A. 1987) (construing

the pre-January 2021 version of Article 66, UCMJ, 10

U.S.C. § 866)). “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)

(quoting Washington, 57 M.J. at 399), aff’d, 77 M.J.

289 (C.A.A.F. 2018).

Appellant was convicted of wrongful possession of

child pornography, in violation of Article 134, UCMJ,

which required the Government to prove the following

elements beyond a reasonable doubt: (1) that

Appellant knowingly and wrongfully possessed child

pornography, to wit: digital images of minors, or what

appear to be minors, engaging in sexually explicit

conduct; and (2) that under the circumstances, the

conduct was of a nature to bring discredit upon the

armed forces. See Manual for Courts-Martial, United

States (2019 ed.) (MCM), pt. IV, ¶ 95.b.(1).

76a

Appellant was also convicted of wrongful viewing

of child pornography, in violation of Article 134,

UCMJ, which required the Government to prove the

following elements beyond a reasonable doubt: (1) that

Appellant knowingly and wrongfully viewed child

pornography, to wit: digital images of minors, or what

appear to be minors, engaging in sexually explicit

conduct; and (2) that under the circumstances, the

conduct was of a nature to bring discredit upon the

armed forces. See MCM, pt. IV, ¶ 95.b.(1).

2. Analysis

Appellant challenges his convictions for both

possessing and viewing child pornography, asserting

that they are legally and factually insufficient.

Underlying these challenges, he argues that because

a representative from Dropbox did not testify to

confirm that the images recovered were in fact the

same files flagged by Dropbox and that the original

evidence was not preserved for comparison, the

convictions were insufficient. We disagree.

Forensic examination of his devices revealed that

Appellant had a digital folder containing multiple

digital files with names indicative of child

pornography. That folder was itself named, “for my

eyes only.” Further, forensic examination of the

devices revealed that Appellant had installed a web

browser specifically designed to navigate the dark

web. In that browser was a bookmark to a website that

was titled with words indicative of child pornography.

Most significantly, Appellant, in a recorded

interview with investigators, provided comprehensive

77a

information proving unequivocally his guilt of these

offenses. He gave explanations as to why he became

“curious” about the “enticing” child pornographic

material. He described how he downloaded and

installed the specific, dark web navigation web

browser. He stated that he searched out child

pornography on the dark web, took a screenshot, and

saved the material to his Dropbox account. Moreover,

he provided detailed descriptions of the boys aged

between 8 and 11 years old engaged in specific sexual

acts that he viewed in these images.

While a representative from Dropbox did not

testify and provide a comparison between images that

initially triggered this investigation and the images

submitted as evidence in this case, the evidence of

Appellant’s guilt was still overwhelming in its

absence.

Viewing the evidence in the light most favorable to

the Government, we conclude a rational trier of fact

could have found the essential elements of the crimes

beyond a reasonable doubt. See Robinson, 77 M.J. at

297–98. Furthermore, after weighing the evidence in

the record of trial and making allowances for not

having personally observed the witnesses, we are

ourselves convinced of Appellant’s guilt of both

offenses beyond a reasonable doubt. See Rodela, 82

M.J. at 525.

D. Post-Trial Delay

1. Law

“Due process entitles convicted service members to

a timely review and appeal of court-martial

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convictions.” United States v. Moreno, 63 M.J. 129,

132 (C.A.A.F. 2006) (citing Toohey v. United States, 60

M.J. 100, 101 (C.A.A.F. 2004)). Whether an appellant

has been deprived of his due process right to speedy

post-trial and appellate review, and whether

constitutional error is harmless beyond a reasonable

doubt, are questions of law we review de novo. United

States v. Prasad, 80 M.J. 23, 29 (C.A.A.F. 2020)

(citation omitted); United States v. Arriaga, 70 M.J.

51, 55 (C.A.A.F. 2011) (citing Moreno, 63 M.J. at 135).

A presumption of unreasonable delay arises when

the case is docketed more than 150 days from an

appellant being sentenced. United States v. Livak, 80

M.J. 631, 633 (A.F. Ct. Crim. App. 2020) (citation

omitted). A presumptively unreasonable delay

triggers an analysis of the four factors set forth in

Barker v. Wingo, 407 U.S. 514, 530 (1972): “(1) the

length of the delay; (2) the reasons for the delay; (3)

the appellant’s assertion of the right to timely review

and appeal; and (4) prejudice.” Moreno, 63 M.J. at 135

(additional citations omitted).

“We analyze each factor and make a determination

as to whether that factor favors the Government or

the appellant.” Id. at 136 (citation omitted). Then, we

balance our analysis of the factors to determine

whether a due process violation occurred. Id. (citing

Barker, 407 U.S. at 533 (“Courts must still engage in

a difficult and sensitive balancing process.”)). “No

single factor is required for finding a due process

violation and the absence of a given factor will not

prevent such a finding.” Id. (citation omitted).

However, where an appellant has not shown prejudice

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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.” Toohey, 63 M.J. at 362.

A CCA may provide appropriate relief for excessive

post-trial delay. Article 66(d)(2), UCMJ, 10 U.S.C.

§ 866(d)(2). Appropriate relief is not synonymous with

meaningful relief. United States v. Valentin-Andino, __

M.J. __, No. 24-0208, 2025 CAAF LEXIS 248, at *7

(C.A.A.F. 31 Mar. 2025). Additionally, “[a]lthough it is

within a Court of Criminal Appeal’s discretion to place its

reasoning about Article 66(d)(2) relief on the record, it is

not required to do so.” Id. (citing United States v.

Winckelmann, 73 M.J. 11, 16 (C.A.A.F. 2013)).

2. Procedural Background and Analysis

Appellant was sentenced on 27 July 2023. The case

was docketed with the court on 26 January 2024. The

delay in docketing, a total of 183 days, is

presumptively unreasonable.

The primary drivers of delay in the processing of

this ROT were the 111 days for the court reporter to

complete the transcript and the 56 days for the

completed ROT to make its way to the court for

docketing. Neither timeframe reflects positively on

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the Government.7 However, after evaluating each

time period individually and in the aggregate with the

other days utilized for post-trial processing, we

conclude there is no due process violation created by

the delay.

Notably, Appellant did not assert his right to

timely appellate review. He did not claim prejudice on

this issue, and we find none. Because we find no

particularized prejudice, and the delay is not so

egregious as to adversely affect the public’s perception

of the fairness and integrity of the military justice

system, we likewise find no due process violation. See

Toohey, 63 M.J. at 362.

We also conclude there is no basis for relief under

Article 66(d)(2), UCMJ, in the absence of a due process

violation. Considering all the facts and circumstances

of Appellant’s case, we decline to exercise our Article

66(d), UCMJ, 10 U.S.C. § 866(d), authority to grant

relief

III. Conclusion

The findings and sentence as entered are correct in

law and fact, and no error materially prejudicial to the

7 The court notes that there was approximately 73 standard duty

days encompassed in that 111 days (excluding holidays,

weekends, and associated pass days). The transcript in this case

is 817 pages. Thus, it appears the court reporter completed on

average fewer than 12 pages per day, well below the general

guideline set in Department of the Air Force Manual 51-203,

Records of Trial, ¶ 14.14 (21 Apr. 2021): “As a general guideline,

one hour of in-court proceedings should take no more than five

hours to transcribe and, in more complex cases, no more than

seven hours to transcribe.”

81a

substantial rights of Appellant occurred. Articles

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

Accordingly, the findings and sentence are

AFFIRMED.

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court