U NITED S TATES A IR F ORCE
             C OURT OF C RIMINAL A PPEALS
                          ________________________

                               No. ACM 39024
                          ________________________

                            UNITED STATES
                                Appellee
                                      v.
                         Anthonei T. SUDDS
           Airman First Class (E-3), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                          Decided 23 August 2017
                          ________________________

Military Judge: Marvin W. Tubbs II.
Approved sentence: Dishonorable discharge, confinement for 12 years,
total forfeiture of all pay and allowances, and reduction to E-1. Sentence
adjudged 11 December 2015 by GCM convened at McConnell Air Force
Base, Kansas.
For Appellant: Captain Allen S. Abrams, USAF.
For Appellee: Major Amanda L.K. Linares, USAF; Major Mary Ellen
Payne, USAF; Major Meredith L. Steer, USAF.
Before HARDING, C. BROWN, and SPERANZA, Appellate Military Judges
Judge C. BROWN delivered the opinion of the court, in which Senior Judge
HARDING and Judge SPERANZA joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                       ________________________
C. BROWN, Judge:
   A general court-martial consisting of officer members convicted Appellant,
contrary to his pleas, of one specification of rape by unlawful force on divers
occasions, one specification of sexual assault by causing bodily harm on divers
                     United States v. Sudds, No. ACM 39024


occasions, and two specifications of assault consummated by a battery in vio-
lation of Articles 120 and 128, Uniform Code of Military Justice (UCMJ), 10
U.S.C. §§ 920 and 928.1 The members sentenced Appellant to a dishonorable
discharge, confinement for 12 years, total forfeiture of all pay and allowances,
and reduction to E-1. The convening authority disapproved the adjudged for-
feitures, but otherwise approved the sentence as adjudged and deferred and
later waived the mandatory forfeitures for the benefit of Appellant’s dependent
daughter.
    On appeal, Appellant raises the following assignments of error: (1) in light
of United States v. Hills, 

(C.A.A.F. 2016), the military judge com-
mitted prejudicial error in his instructions to the court members; (2) the evi-
dence is factually insufficient to sustain his rape and sexual assault convic-
tions; (3) the evidence presented by the Government prejudicially varied from
the bill of particulars; (4) the military judge abused his discretion by permit-
ting the introduction of evidence that Appellant watched rape-themed pornog-
raphy; (5) Appellant’s statements to law enforcement should have been sup-
pressed because law enforcement officers failed to properly place Appellant on
notice of the offenses of which he was suspected of committing; (6) trial coun-
sel’s findings argument was improper; (7) the military judge abused his discre-
tion by permitting the admission of a portion of a video made by Appellant
wherein Appellant admits to raping his spouse;2 and (8) Appellant’s convictions
should be reversed for cumulative error.3 Finding no relief is warranted, we
affirm the findings and sentence.


                                  I. BACKGROUND
   Appellant and the victim, TB, met online in late 2011 when they were both
18 years old. The couple met in person on two occasions, once in October 2012
in North Carolina where TB resided with her parents, and once in the fall of
2013 in San Antonio when Appellant graduated from Air Force Basic Training.
The couple married in December 2013, and moved to an apartment near


1For one of the assault specifications, the members acquitted Appellant of the greater
offense of aggravated assault, but found him guilty of the lesser included offense of
assault consummated by a battery in violation of Article 128, UCMJ, 10 U.S.C. § 928.
2 Raised pursuant to United States v. Grostefon, 

(C.M.A. 1982). Having
considered Appellant’s arguments, we summarily reject them as they do not require
additional analysis or warrant relief. See United States v. Matias, 

(C.M.A.
1987).
3Raised pursuant to Grostefon, 

. Having considered Appellant’s arguments,
we summarily reject them as they do not require additional analysis or warrant relief.
See Matias, 

.


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                   United States v. Sudds, No. ACM 39024


McConnell Air Force Base, Kansas where Appellant was stationed for his first
duty assignment. Appellant was TB’s first boyfriend and she was a virgin prior
to their marriage. During their less than one-year marriage, Appellant physi-
cally abused TB by punching her, kicking her, choking her around the neck,
and pulling her hair.
    Aside from the physical altercations, the main issue in the couple’s short
marriage appeared to be their disagreement over sex. The couple often argued
about sexual intercourse when TB did not want to have sex with Appellant.
Appellant would demand sex from TB, stating things such as “you’re going to
give me sex,” “we’re going to have sex,” “you’re my wife, you are going to give
me sex.” TB described several occasions where Appellant used unlawful force
to have sexual intercourse with her, including one instance where she de-
manded Appellant get a condom before having intercourse with her and Appel-
lant forcibly pried open her legs and had intercourse with her despite her phys-
ical resistance. TB described several other occasions where she refused sexual
intercourse, passively resisted Appellant by telling him no and not physically
giving in to his advances, but despite her refusals, Appellant had sexual inter-
course with her anyway.


                               II. DISCUSSION
A. Use of Propensity Evidence Pursuant to Mil. R. Evid. 413
    Based on the military judge’s instructions concerning the use of the charged
offenses as propensity evidence and the members’ consideration of this evi-
dence, Appellant claims his convictions for rape and sexual assault must be set
aside based on our superior court’s rulings in Hills, 

, and United
States v. Hukill, 

(C.A.A.F. 2017). Prior to trial, the Government
notified the Defense of its intent to offer various sexual offenses committed by
Appellant as propensity evidence under Military Rule of Evidence (Mil. R.
Evid.) 413. Two of the acts were not charged offenses and occurred when Ap-
pellant visited TB in North Carolina prior to their marriage. First, Appellant
placed TB’s hand on his penis and moved it up and down despite her lack of
consent. Second, Appellant pushed TB’s head toward his penis and held her
head there so she would perform oral sex on him despite TB indicating she did
not desire any sexual contact with Appellant. The remaining sexual offenses
offered as potential propensity evidence also involved TB and were contained
in the charged rape and sexual assault specifications. Trial defense counsel
submitted a motion for appropriate relief based on the Government’s notice
requesting the military judge prohibit the Government from offering any pro-
pensity evidence.
    After conducting a hearing on the Defense motion, the military judge held
the sexual acts which occurred in North Carolina prior to Appellant’s and TB’s

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                   United States v. Sudds, No. ACM 39024


marriage could be considered as propensity evidence. He deferred ruling on the
sexual acts contained within the charged offenses, but after presentation of
evidence, and recognizing the status of the law at that time, denied the De-
fense’s motion to preclude the use of the Mil. R. Evid. 413 evidence as applied
to the charged offense, stating, “the government will be permitted to argue that
evidence as it sees fit, in accordance with [Mil. R. Evid.] 413.”
   The military judge later instructed the members consistent with his ruling
and the standard Benchbook instructions, stating in part:
       Further, evidence that the accused committed the rape alleged
       in Specification 1 of Charge I, may have no bearing on your de-
       liberations in relation to Specification 2 of Charge I, unless you
       first determine by a preponderance of the evidence that is more
       likely than not, the offense alleged in Specification 1 of Charge I
       occurred. If you determine, by a preponderance of the evidence,
       the offense alleged in Specification 1 of Charge I occurred, even
       if you are not convinced beyond a reasonable doubt that the ac-
       cused is guilty of that offense, you may nonetheless then con-
       sider the evidence of that offense for its bearing on any matter
       to which it is relevant in relation to Specification 2 of Charge I.
       You may also consider the evidence of such other act of sexual
       assault for its tendency, if any, to show the accused’s propensity
       or predisposition to engage in sexual assault. You may not, how-
       ever, convict the accused solely because you believe he commit-
       ted this offense or solely because you believe the accused has a
       propensity or predisposition to engage in sexual assault. In other
       words, you cannot use this evidence to overcome a failure of proof
       in the government’s case, if you perceive any to exist. The ac-
       cused may be convicted of an alleged offense, only if the prosecu-
       tion has proven each element beyond a reasonable doubt.
       Each offense must stand on its own and proof of one offense car-
       ries no inference that the accused is guilty of any other offense.
       In other words, proof of one sexual assault creates no inference
       that the accused is guilty of any other sexual assault. However,
       it may demonstrate that the accused has a propensity to commit
       that type of offense. The prosecution’s burden of proof to estab-
       lish the accused’s guilt beyond a reasonable doubt remains as to
       each and every element of each offense charged. Proof of one
       charged offense carries with it no inference that the accused is
       guilty of any other charged offense.




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                   United States v. Sudds, No. ACM 39024


    The military judge provided the same instruction as to how the members
could permissibly use the charged sexual assault allegation in their delibera-
tions in relation to the rape specification, as well as to how the members could
permissibly use the uncharged sexual offenses in relation to the charged of-
fenses.
   The meaning and scope of Mil. R. Evid. 413 is a question of law that is
reviewed de novo. 

. Instructional errors are also reviewed
de novo. 

    Mil. R. Evid. 413(a) provides that in a court-martial where the accused is
charged with a sexual offense, evidence that the accused committed other sex-
ual assaults may be considered on “any matter to which it is relevant.” This
includes using evidence of sexual assaults to prove the accused has a propen-
sity to commit sexual assault. United States v. James, 

, 220
(C.A.A.F. 2006).
    However, in Hills, the United States Court of Appeals for the Armed Forces
(CAAF) held that evidence of the accused’s commission of a sexual assault may
not be used in this way if the alleged sexual assault is charged in the same
court-martial and the accused has pleaded not guilty to 

. The
CAAF further held that the instructions accompanying the admission of evi-
dence of charged offenses for Mil. R. Evid. 413 purposes implicate fundamental
constitutional due process concerns by undermining an accused’s presumption
of innocence and the Government’s requirement to prove guilt beyond a rea-
sonable doubt. 

Because “constitutional dimensions are in play,” prej-
udice for such an error must be tested for harmlessness beyond a reasonable
doubt. 

States v. Wolford, 

, 420 (C.A.A.F. 2006)).
“An error is not harmless beyond a reasonable doubt when ‘there is a reasona-
ble possibility that the [error] complained of might have contributed to the con-
viction.’” 

(quoting United States v. Moran, 

, 187
(C.A.A.F. 2007)). “’To say that an error did not contribute to the verdict is, ra-
ther, to find that error unimportant in relation to everything else the jury con-
sidered on the issue in question, as revealed in the record.’” 

(quoting
Yates v. Evatt, 

, 403 (1991), overruled on other grounds by Estelle
v. McGuire, 

, 72 n.4 (1991)).
   In United States v. Hukill, 

(C.A.A.F. 2017), the CAAF clarified
that Hills is not to be interpreted narrowly:
       [T]he use of evidence of charged conduct as [Mil. R. Evid.] 413
       propensity evidence for other charged conduct in the same case
       is error, regardless of the forum, the number of victims, or
       whether the events are connected. Whether considered by mem-




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                   United States v. Sudds, No. ACM 39024


       bers or a military judge, evidence of a charged and contested of-
       fense, of which an accused is presumed innocent, cannot be used
       as propensity evidence in support of a companion charged of-
       fense.

The CAAF reiterated that, where such error exists, the Government
must “prove there was no reasonable possibility that the error contributed to
[the] verdict.” 

and Hukill, we readily conclude the military judge erred in
permitting evidence of the charged sexual offenses to be used pursuant to Mil.
R. Evid. 413 and instructing the court members accordingly. Although the mil-
itary judge’s ruling is understandable, coming as it did before the decision in
Hills, we must “apply the clear law at the time of appeal, not the time of trial.”
United States v. Mullins, 

, 116 (C.A.A.F. 2010) (citing United States
v. Harcrow, 

, 159 (C.A.A.F. 2008)). We nonetheless find that this
constitutional error was harmless beyond a reasonable doubt.
    In finding this error unimportant in relation to everything else the mem-
bers considered on the issue in question, we note the Government’s case for the
rape and sexual assault specifications was strong and buttressed by Appel-
lant’s admission to raping TB in a video taken from his cell phone. As with
most sexual assault cases, the credibility of the victim and the accused was a
central issue, and here TB’s testimony was compelling and reasonably con-
sistent while Appellant’s own admissions, including a videotaped admission of
rape, provide strong evidence and largely corroborated TB’s testimony.
    In corroborating the details of TB’s testimony during his interview with the
Air Force Office of Special Investigations (AFOSI), Appellant made several
general admissions concerning his physical assaults on TB. Appellant also ad-
mitted he didn’t think a husband could rape his wife, stated he told TB on
several occasions she “owed him sex,” and admitted he watched rape-themed
porn during the course of their marriage. Additionally, the two uncharged non-
consensual sexual offenses that occurred prior to the couple’s marriage where
Appellant forced TB to fondle his penis and held her head onto to his penis so
she would perform oral sex on him were available for the members’ considera-
tion as proper propensity evidence. Finally, trial counsel made no mention of
charged Mil. R. Evid. 413 evidence in her closing and did not appear to rely on
it or emphasize it during her case.
    TB testified under oath and was subject to the crucible of cross-examina-
tion. Despite trial defense counsel’s attempt to challenge TB’s credibility on
cross-examination, any discrediting of TB paled in comparison to Appellant’s
over five-hour AFOSI interview wherein he provided false statements about




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                    United States v. Sudds, No. ACM 39024


significant details concerning his relationship with TB. Consequently, the mil-
itary judge instructed the members that they could consider Appellant’s false
explanations to investigators as indicative of his consciousness of guilt.
    TB’s testimony described in detail three instances of rape. The first oc-
curred when she did not want to have sexual intercourse because Appellant
did not have a condom. Despite her protestations, Appellant forcibly pried open
her legs to the point where TB thought her leg muscle was going to be “ripped
open.” Appellant then had sexual intercourse with TB while holding her down
with his body weight. In the second incident, Appellant again pried TB’s legs
open and then she described going “ragdoll,” or becoming motionless in hopes
Appellant would stop. Instead, Appellant continued to penetrate TB. Finally,
TB described a third incident where Appellant penetrated her from behind af-
ter forcibly opening her legs. On this occasion, TB continued to tell Appellant
to stop while crying into her pillow as Appellant penetrated her using his body
weight to hold her down.
    In terms of the sexual assaults, TB describes the first time she had sexual
intercourse with Appellant. TB was a virgin and consented to the initial sexual
intercourse with her on top of Appellant. During the intercourse, the pain be-
came unbearable to TB and she told Appellant how much it hurt and that she
wanted him to stop having intercourse with her. When Appellant refused to
stop, TB tried to slide off of him, but he held her legs so she could not get off of
him and continued to penetrate her until he ejaculated. TB described another
occasion where Appellant told her “you owe me sex” and she refused, telling
him to get away from her. Despite her refusal, Appellant penetrated TB. She
yelled at him to “get the f[**]k off of me,” until Appellant stopped having inter-
course with her after “he lost [his erection], because [she] fought too much.”
   TB testified that it became a common occurrence for Appellant to tell her
he wanted sex, start taking off her clothes, and for TB to tell Appellant, “I’m
not doing anything, I don’t want to have sex with you.” Appellant would then
pull down her underwear, either taking her underwear off or just taking them
partially off, and have sex with TB while she completely ignored him or played
games on her phone. Sometimes Appellant would stop trying to have sex with
TB if she did not react or played on her phone, but other times Appellant would
penetrate TB despite her telling him she did not want to have sex and not
physically responding to him.
    Applying the standard of harmless beyond a reasonable doubt, we find am-
ple support from other evidence in the record that convinces us that the error
in permitting the charged rape and sexual assault offenses to be used as pro-
pensity evidence with regards to each other and the corresponding error in
giving the Mil. R. Evid. 413 instruction were unimportant in relation to every-
thing else the court members considered in finding Appellant guilty of rape


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                   United States v. Sudds, No. ACM 39024


and sexual assault. We further find that that propensity evidence did not con-
tribute to the verdict. In addition to TB’s testimony, Appellant corroborated
several crucial details of TB’s testimony during his interview with AFOSI. TB
testified that she confronted Appellant after one of the instances of rape oc-
curred, explaining to him what “marital rape” was after Appellant claimed it
was not possible for someone to rape his wife. During his interview, Appellant
acknowledged that he did not think he needed consent to have sex with his
wife. He also confirmed that on one occasion after he had sex with TB, the topic
of “marital rape” just “popped up.” When the interviewing agent pressed him
for details about what generated the discussion about spousal rape, Appellant
claimed they discussed the term after the couple had “great” sex.
   TB also described Appellant telling her she owed him sex, her replying that
she didn’t want to have sex, and then after denying his advances, playing on
her phone while he had sex with her in hopes he would lose interest and stop.
Appellant admitted that he would initiate sex with TB while she was playing
“candy crush” on her phone, but claimed she would get into it after a few
minutes of ignoring him and eventually “throw her phone to the side.” Appel-
lant acknowledged at least six occasions where TB was playing on her phone
when he started to have sexual intercourse with her.
    Appellant confirmed he told TB she “owed him sex,” he tried to “guilt” TB
into sex, TB was good at “guarding herself” when she didn’t want sex, and that,
at times, she pushed him off when she didn’t want sex. Though Appellant ini-
tially denied TB ever “ran away” to avoid sex, he later admitted that on more
than one occasion she ran out of the room when he went to put on a condom on
to avoid having sex with him. He agreed that the couple got into physical fights
over sex. He later stated if he was going to rape his wife, it “would have been
multiple times.” Appellant also confirmed that TB would tell him to watch porn
instead of having sex with him and admitted that he watched raped-themed
pornography during the couple’s marriage.
    Our belief that the error did not contribute to the verdict in this case is
further supported by the trial counsel’s findings argument, during which she
referenced only the two instances of uncharged sexual acts, evidence still ad-
missible after the Hills and Hukill decisions. Further, trial counsel did not la-
bel these uncharged acts as propensity evidence, but did tell the members they
could “consider them” as evidence TB didn’t want sexual contact with Appel-
lant. Though the military judge instructed the members concerning the use of
the charged evidence as propensity evidence, trial counsel did not invite the
members to use the charged offenses in this manner during argument.
   Like most sexual assault cases, the evidence in this case was not without
conflict, as trial defense counsel confronted TB with potential bias and motive
to misrepresent in recounting statements she made to a friend of the couple.


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                   United States v. Sudds, No. ACM 39024


TB agreed she previously said that if Appellant cheated on her she’d kill him,
and a witness testified TB said that if Appellant left her, she’d make his life a
“living hell.” Defense counsel also highlighted a Facebook post where TB wrote,
“Hell hath no fury like a woman scorned.” Defense counsel pointed out that
when the police responded to the couple’s apartment on two occasions after
reported domestic disturbances, TB told the police and Air Force officials “noth-
ing happened’ and that the couple was only “play fighting.”
    Defense counsel also challenged TB’s credibility by noting that despite TB’s
allegations that Appellant punched, kicked, and choked her, none of the re-
sponding police officers or Air Force personnel who went to the apartment ob-
served any visible injuries from the alleged assaults. This was countered by
introduction of pictures purporting to show injuries Appellant inflicted upon
TB and by Appellant’s admissions that he had physically assaulted TB. Despite
counsel’s efforts to discredit TB, Appellant’s repeated false explanations in his
interviews demonstrating his consciousness of guilt and his admissions sup-
porting important details of TB’s testimony served to counter defense counsel’s
attacks on TB’s testimony.
    Finally, one of the most compelling pieces of evidence supporting the con-
victions comes from Appellant himself. In a video taken from Appellant’s cell
phone, a female voice in the background states: “you raped [TB]” and in re-
sponse Appellant appears on the video and states: “yeah sure did, little stupid
b***h.” During the AFOSI interview while denying he raped TB, Appellant
referred to TB as “that stupid a** girl,” “that b***h,” and that “dumb girl.”
    We find overwhelming evidence of Appellant’s guilt in this case. Appellant’s
admissions to AFOSI and on the cell phone video, coupled with TB’s testimony,
Appellant’s corroboration of her testimony, and Appellant’s consciousness of
guilt in his interview lead us to conclude there is no reasonable possibility that
the military judge’s instructions concerning propensity evidence and the mem-
bers’ consideration of the charged offenses as propensity evidence contributed
to Appellant’s guilty verdicts. Accordingly, we find that the errors are harmless
beyond a reasonable doubt.
B. Factual Sufficiency of Rape and Sexual Assault Convictions
    We review issues of factual sufficiency de novo. Article 66(c), UCMJ, 10
U.S.C. § 866(c); United States v. Washington, 

, 399 (C.A.A.F. 2002).
Our assessment of factual sufficiency is limited to the evidence produced at
trial. United States v. Dykes, 

, 272 (C.M.A. 1993).
   When evaluating factual sufficiency, the test is “whether, after weighing
the evidence in the record of trial and making allowances for not having per-
sonally observed the witnesses, [we are] convinced of the [appellant]’s guilt be-
yond a reasonable doubt.” United States v. Reed, 

, 41 (C.A.A.F. 2000);


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                   United States v. Sudds, No. ACM 39024


United States v. Turner, 

, 325 (C.M.A. 1987). In conducting this
unique appellate role, we take “a fresh, impartial look at the evidence,” apply-
ing “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.” 

.
   To sustain a conviction for rape as charged in Specification 1 of Charge I,
the Prosecution was required to prove: (1) That on divers occasions Appellant
committed sexual acts upon TB, to wit: penetrating her vulva with his penis;
and (2) That Appellant did so by using unlawful force against TB, to wit: hold-
ing her down and spreading her legs. Article 120, UCMJ, 10 U.S.C. § 920
(2012).
    To sustain a conviction for sexual assault as charged in Specification 2 of
Charge I, the Prosecution was required to prove: (1) That on divers occasions
Appellant committed sexual acts upon TB, to wit: penetrating her vulva with
his penis; (2) That Appellant did so by causing bodily harm to TB, to wit: pen-
etrating her vulva with his penis; and (3) That Appellant did so without his
TB’s consent. Article 120, UCMJ, 10 U.S.C. § 920 (2012).
    The evidence presented at trial, as discussed in detail above, met all of the
elements of both the rape and sexual assault offenses. As addressed, TB’s tes-
timony was supported by Appellant’s AFOSI interview and his admission that
he raped TB. Having reviewed the entire record of trial and making allowances
for not personally observing the witnesses, we are convinced of Appellant’s
guilt beyond a reasonable doubt.
C. Bill of Particulars
    At trial, Appellant’s trial defense counsel requested and received a bill of
particulars concerning the rape and sexual assault specifications. Appellant
now asserts, for the first time, that the evidence presented at trial varied from
the bill of particulars. While the pleadings alleged “divers occasions,” the Gov-
ernment’s bill of particulars stated that Appellant raped TB “approximately”
five to six times and that he sexually assaulted her “approximately” 50 times.
Appellant claims the Government only presented evidence of three rapes and
three sexual assaults, and that this lack of notice prejudiced his ability to at-
tack TB’s credibility at trial. We do not agree.
    Whether there was a fatal variance is a question of law reviewed de novo.
United States v. Treat, 

, 335 (C.A.A.F. 2014). A variance between
pleadings and proof exists when evidence at trial “establishes the commission
of a criminal offense by the accused, but the proof does not conform strictly
with the offense alleged in the charge.” United States v. Teffeau, 

, 66
(C.A.A.F. 2003). To prevail on a fatal variance claim, an appellant must show


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                    United States v. Sudds, No. ACM 39024


both that the variance was material and that it substantially prejudiced him.
United States v. Marshall, 

, 420 (C.A.A.F. 2009). A variance is “ma-
terial” when it “substantially changes the nature of the offense, increases the
seriousness of the offense, or increases the punishment of the offense.” 

accused is entitled to “fair notice of what he is being charged
with,” United States v. Girouard, 

, 10 (C.A.A.F. 2011), it is well settled
that:
       The military is a notice pleading jurisdiction. Charge(s) and
       specification(s) will be found sufficient if they, ‘“first, contain the
       elements of the offense charged and fairly inform a defendant of
       the charge against which he must defend, and, second, enable
       him to plead an acquittal or conviction in bar of future prosecu-
       tions for the same offense.”’
United States v. Fosler, 

, 229 (C.A.A.F. 2011) (quoting Hamling v.
United States, 

, 117 (1974)) (citation omitted).
    The purposes of a bill of particulars are to inform the accused of the nature
of the charge with sufficient precision to enable the accused to prepare for trial,
to avoid or minimize the danger of surprise at the time of trial, and to enable
the accused to plead the acquittal or conviction in bar of another prosecution
for the same offense when the specification itself is too vague and indefinite for
such purposes. A bill of particulars should not be used to conduct discovery of
the Government’s theory of a case, to force detailed disclosure of acts underly-
ing a charge, or to restrict the Government’s proof at trial. See Rule for Courts-
Martial (R.C.M.) 906(b)(6), Discussion.
    Here, there is no issue as to whether the specifications themselves were
sufficient or whether there was fatal variance between the specifications and
the findings. Instead, Appellant points to variance between the bill of particu-
lars he was provided and proof presented at trial. But the only variance was
that the Government at trial proved fewer occasions of rape and sexual assault
than the approximate number it had provided in its bill of particulars. This did
not change the nature, seriousness, or the maximum punishment of the of-
fenses and there is no showing that it frustrated Appellant’s ability to prepare
for trial. Because Appellant has failed to show that any variance was material
and prejudicial, his claim fails.
D. Evidence of Appellant Watching Rape-themed Pornography
   During Appellant’s AFOSI interview, Appellant admitted to watching rape-
themed pornography. Additionally, he stated that sometimes TB would tell
him to go watch pornography or he would “finish off” with pornography when
the couple was having sex. TB confirmed that she told Appellant to go watch
pornography or “finish” with pornography to avoid having sex with him. After

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                    United States v. Sudds, No. ACM 39024


the Government filed notice to admit this evidence pursuant to Mil. R. Evid.
404(b), trial defense counsel moved the military judge to rule on its admissibil-
ity. After hearing argument, the military judge issued a written ruling admit-
ting the statements concerning the rape-themed pornography. Appellant now
avers the military judge abused his discretion by admitting this evidence and
asks the court to set aside the findings pertaining to his convictions for viola-
tions of Article 120, UCMJ, along with the sentence imposed. We disagree.
    We review a military judge’s decision to admit or exclude evidence for an
abuse of discretion. United States v. Ediger, 

, 248 (C.A.A.F. 2010).
The abuse of discretion standard is a strict one, calling for more than a mere
difference of opinion. The challenged action must be arbitrary, fanciful, clearly
unreasonable, or clearly erroneous. United States v. White, 

, 239
(C.A.A.F. 2010) (quoting United States v. Lloyd, 

, 99 (C.A.A.F. 2010)).
When a military judge articulates the balancing test under Mil. R. Evid. 403
on the record, the ruling will be overturned only if there is a clear abuse of
discretion. United States v. Manns, 

, 166 (C.A.A.F. 2000) (citing
United States v. Ruppel, 

, 250 (C.A.A.F. 1998)). The military judge
receives less deference if he fails to articulate the balancing test on the record,
and no deference if he fails to conduct balancing under Mil. R. Evid. 403. 

test is used to determine whether uncharged acts are admis-
sible under Mil. R. Evid. 404(b):
       1. Does the evidence reasonably support a finding by the court
       members that appellant committed prior crimes, wrongs or acts?
       2. What fact . . . of consequence is made more or less probable by
       the existence of this evidence?
       3. Is the probative value . . . substantially outweighed by the
       danger of unfair prejudice?
United States v. Reynolds, 

, 109 (C.M.A. 1989) (internal quotations
and citations omitted). See also Mil. R. Evid. 401, 402, 403. If any part of the
test fails, the evidence is inadmissible. United States v. Humpherys, 

(C.A.A.F. 2002) (citing United States v. Cousins, 

, 74 (C.M.A. 1992)).
    Mil. R. Evid. 404(b) is a rule of inclusion. 

. It
prohibits the admission of evidence “to demonstrate the accused’s predisposi-
tion to crime and thereby to suggest that the factfinder infer that he is guilty,
as charged, because he is predisposed to commit similar offenses.” United
States v. Castillo, 

, 150 (C.M.A. 1989). The evidence may be admis-
sible for other purposes, such as to prove an accused’s intent or motive to com-
mit a crime, as well as other permissible purposes specified in Mil. R. Evid.
404(b). Relevant evidence does not need to “fit snugly into a pigeon hole pro-
vided by Mil. R. Evid. 404(b).” 

.

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                   United States v. Sudds, No. ACM 39024


    Here, the military judge’s written ruling correctly applied the Reynolds
test, finding each prong was met, and explaining that “although forcible rape
as it has been charged” does not contain a specific intent element, evidence of
Appellant’s “intent could be relevant in making a determination as to whether
any claimed mistake of fact as to consent has been established.” Trial defense
counsel conceded there was evidence that Appellant watched rape-themed por-
nography, but argued that the evidence was inadmissible under Mil. R. Evid.
404(b) because it failed the second and third prongs of the Reynolds test. Senior
Trial Counsel countered that the evidence showed Appellant’s intent, motive,
and plan. The military judge ruled that “evidence of an interest in rape themed
pornography would make a fact of consequence [more probable], specifically
that the accused had an interest in forcible sexual intercourse which could be
utilized to counter or eliminate a possible mistake of fact as to consent de-
fense.” Then, the military judge conducted a Mil. R. Evid. 403 balancing test
and found that “the probative value of the evidence is not substantially out-
weighed by the danger of unfair prejudice.”
    The evidence demonstrates Appellant watched raped-themed pornography
during the time frame he allegedly raped and sexually assaulted his then-
spouse. The military judge properly applied the Reynolds test and also con-
ducted a Mil R. Evid. 403 balancing test prior to admitting the evidence. We
find no abuse of discretion in allowing evidence that Appellant watched rape-
themed pornography for the purposes of potentially proving the accused had
an interest in forcible sexual acts and also to eliminate a mistake of fact as to
consent defense which was at issue at the trial.
E. Article 31 Rights Advisement
    Appellant avers his statement to AFOSI should have been excluded be-
cause AFOSI agents failed to properly advise him of the offenses of which he
was suspected. Prior to questioning Appellant, AFOSI agents advised him he
was suspected of rape and wrongful use of marijuana. Appellant was not ad-
vised he was suspected of assault consummated by battery, an offense agents
questioned him about during his interview. Appellant’s contention is that after
reading him his Article 31, UCMJ, rights, AFOSI declined to inform Appellant
whom he had allegedly raped, instead asking him to guess the identity of his
victim. Despite Appellant’s failure to object to the admission of his interview
at trial, he asks us to analyze his alleged error using a plain error standard,
citing the court to United States v. Gray, 

, 26 (C.A.A.F. 1999) and
United States v. Erickson, 

, 223 (C.A.A.F. 2007). We decline and find
he waived the issue.
    Whether an accused has waived an issue is a question of law reviewed de
novo. United States v. Rosenthal, 

, 262 (C.A.A.F. 2005). Whereas
forfeiture is the failure to make the timely assertion of a right, waiver is the


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                    United States v. Sudds, No. ACM 39024


intentional relinquishment or abandonment of a known right. United States v.
Gladue, 

, 313 (C.A.A.F 2005) (internal quotation marks omitted)
(quoting United States v. Olano, 

, 733 (1993)). “Whether a partic-
ular right is waivable; whether the defendant must participate personally in
the waiver; whether certain procedures are required for waiver; and whether
the accused’s choice must be particularly informed or voluntary, all depend on
the right at stake.” 

(quoting 

)
(internal quotation marks omitted).
   Mil. R. Evid. 304(f)(1) states:
       Motions to suppress or objections under this rule, or Mil. R. Evid.
       302 or 305, to any statement or derivative evidence that has
       been disclosed must be made by the defense prior to submission
       of plea. In the absence of such motion or objection, the defense
       may not raise the issue at a later time except as permitted by
       the military judge for good cause shown. Failure to so move or
       object constitutes a waiver of the objection.
(Emphasis added.)
    The CAAF recently examined the effect of failing to raise a motion or objec-
tion to a statement under Mil. R. Evid. 304. United States v. Ahern, 

(C.A.A.F. 2017). It noted that the rule plainly states claims arising under
Mil. R. Evid 304 are waived absent objection and that “this is not a case where
the rule uses the word ‘waiver’ but actually means ‘forfeiture.’” 

Mil.
R. Evid. 304(f)(1) does not mention plain error review, and instead unambigu-
ously provides that any claim arising under Mil. R. Evid. 304 is waived absent
an objection. Ordinarily, appellate courts “do not review waived issues because
a valid waiver leaves no error to correct on appeal.” 

(cit-
ing United States v. Campos, 

, 332 (C.A.A.F. 2009)). However, we
recognize that this court is permitted, under Article 66(c), UCMJ, 10 U.S.C.
§ 866(c), to review issues affirmatively waived by an appellant at trial. United
States v. Chin, 

, 223 (C.A.A.F. 2016) (“CCAs are required to assess
the entire record to determine whether to leave an accused’s waiver intact, or
to correct the error.”). Appellant did not object to the admission of his interview
at trial. After having reviewed the entire record, we leave Appellant’s waiver
of this issue intact.
F. Trial Counsel’s Findings Argument
    Appellant asserts trial counsel engaged in prosecutorial misconduct during
closing argument by calling Appellant a liar and by asking the members to
imagine they were TB. We disagree.
   Improper argument is a question of law that is reviewed de novo. United
States v. Pope, 

, 334 (C.A.A.F. 2011). Because there was no objection

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                    United States v. Sudds, No. ACM 39024


at trial, we review the propriety of trial counsel’s argument for plain error.
United States v. Halpin, 

, 479 (C.A.A.F. 2013). To prevail under a
plain error analysis, Appellant must show “(1) there was an error; (2) it was
plain or obvious; and (3) the error materially prejudiced a substantial right.”
United States v. Erickson, 

, 223 (C.A.A.F. 2007) (quoting United
States v. Kho, 

, 65 (C.A.A.F. 2000)). This rule exists “to prevent de-
fense counsel from remaining silent, making no objection, and then raising the
issue on appeal for the first time, long after any possibility of curing the prob-
lem has vanished. It is important to encourage all trial participants to seek a
fair and accurate trial the first time around.” United States v. Reist, 

, 110 (C.A.A.F. 1999) (internal quotation marks omitted).
    It is well established that while a prosecutor “may strike hard blows, he is
not at liberty to strike foul ones. It is as much his duty to refrain from improper
methods calculated to produce a wrongful conviction as it is to use every legit-
imate means to bring about a just one.” United States v. Frey, 

, 248
(C.A.A.F. 2014) (quoting Berger v. United States, 

, 88 (1935)). Trial
counsel is entitled “to argue the evidence of record, as well as all reasonable
inferences fairly derived from such evidence.” United States v. Baer, 

, 237 (C.A.A.F. 2000). Counsel are to limit arguments to evidence in the
record and reasonable inferences that can be drawn from that evidence. Id..
“[I]t is error for trial counsel to make arguments that ‘unduly . . . inflame the
passions or prejudices of the court members.’” United States v. Schroder, 

, 58 (C.A.A.F. 2007) (omission in original) (quoting United States v. Clif-
ton, 

, 30 (C.M.A. 1983)). Trial counsel are also prohibited from in-
jecting into argument irrelevant matters, such as facts not in evidence or per-
sonal opinions about the truth or falsity of testimony or evidence. 

; R.C.M. 919(b), Discussion. To that end, courts have
struggled to draw the “exceedingly fine line which distinguishes permissible
advocacy from impermissible excess.” 

(quoting United
States v. White, 

, 207 (2d Cir. 1973)).
    In closing argument, trial counsel, while detailing Appellant’s falsehoods
during his AFOSI interview, referred to him on one occasion as a “liar.” In the
interview, Appellant repeatedly stated he did not physically abuse his wife, but
later admitted to the interviewing agents he had hit, punched, and kicked her
in the face. Appellant denied choking TB, but later admitted he had choked
her, but claimed she had faked passing out as a result of him choking her neck.
Appellant initially told AFOSI that TB never pushed him off during sex, but
later admitted TB did push him off when she didn’t want to have sex with him.
Appellant also stated that TB never ran away from him during sex; however,
he later admitted that she did run away from him when she didn’t want to
have sex. Appellant even gave a false explanation about how he met TB, telling
investigators he met TB at college in Arizona when in fact they met online.

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                   United States v. Sudds, No. ACM 39024


Finally, Appellant repeatedly denied raping TB; however, in a video, he admit-
ted to raping her.
   While counsel should certainly be cautious in labeling an accused a “liar”
during argument, in this case, the term was a reasonable comment on Appel-
lant’s AFOSI interview, which contained so many false or misleading state-
ments, that the military judge instructed the members concerning the false
explanations made by Appellant. We find no error in this argument, plain or
otherwise. Even if counsel’s argument could be considered error, we find no
prejudice to a substantial right of Appellant.
   Appellant next asserts that it was plain error for trial counsel to improperly
request that the members put themselves in the place of the victim by asking
them to imagine they were at the scene of the alleged offense.
   At various points during closing argument, trial counsel, without objection,
asked the members to imagine a scene as she described it:
       When they are in the hotel, we have the first incident that hap-
       pens. He wants that sex again. We can see from that video, he
       certainly thinks that he is entitled to that right, members?
       Could you imagine someone saying those things to you? “Give
       me sex. You owe me sex. I am taking sex from you.’’
           ....
       She tells you that’s her best defense mechanism, because that is
       one of her strongest features. When he comes after her, she will
       kick, because that’s all she has. She starts to kick him away, and
       she gets up on the bed, and he is mad. I mean, members, you
       saw him screaming in that interview. Can you imagine being in
       an apartment, in a tiny bedroom with that voice coming at you?
       He had [making sounds] ggrkk, ggrkk, ggrkk [punching and el-
       bow motions to the head] elbowed her right in the head, to the
       point that it was so bad, it busted her head open. There was
       blood. She gets up, and she’s, as you can imagine, dizzy, kind of
       out there. He comes towards her and she [making sounds] ggrkk,
       grabs his hand or bites his hand and wants him to get away. I
       mean, do you want someone coming towards you after they just
       [making sounds] ggrkk, right in your head and they busted your
       head open?
           ....
       She sees the blood on his face from her head, and she goes like
       this [demonstrating something] and she freaks out. We can im-
       agine that. I mean, your head is bleeding and busted open, and


                                       16
                   United States v. Sudds, No. ACM 39024


       you see it. So she goes back into the bathroom. She puts her head
       in the tub and she is trying to wash the blood out. So what does
       he say? “Oh, you’re fine. Stop whining. Get over it.”
           ....
       The agent starts talking about the stepdad and he goes berserk.
       So can you imagine being in the apartment, in a kitchen, stand-
       ing up against the wall, and she says something about his step-
       dad, and you get that on the other end? He takes his forearm
       and he puts it up there, and he chokes her. But do you know how
       we know that he did it? When she didn’t do a single thing? Be-
       cause in the interview, he admits it. He [pointing to the accused]
       admits that he choked her.
Emphasis added.
    “[A]rgument by a trial counsel must be viewed within the context of the
entire court-martial. The focus of [the] inquiry should not be on words in isola-
tion but on the argument as ‘viewed in context.’” 

(quoting
United States v. Young, 

, 16 (1985)). “[I]t is improper to ‘surgically
carve’ out a portion of the argument with no regard to its context.” 

agree with Appellant’s assertion that trial counsel’s argument impermissibly
asked the members to put themselves in the victim’s shoes. Trial counsel ap-
propriately asked the members to visualize the offenses as they happened, as
an outsider looking in. While trial counsel vividly described Appellant’s ac-
tions, this is substantively distinct from asking the members to put themselves
in the victim’s place. See 

–38 (distinguishing between ask-
ing members to imagine themselves in the place of a victim and asking them
to imagine a victim’s fear or pain). Thus, trial counsel’s proper comments did
not result in error, plain or otherwise. Again, even assuming arguendo coun-
sel’s argument to be error, we find no prejudice to Appellant.


                               III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and the sentence are AFFIRMED.

                  FOR THE COURT



                  KURT J. BRUBAKER
                  Clerk of the Court


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