U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                         ________________________

                              No. ACM 39350
                         ________________________

                            UNITED STATES
                                Appellee
                                     v.
                      Michael L. MERRITT
             Airman Basic (E-1), U.S. Air Force, Appellant
                         ________________________

        Appeal from the United States Air Force Trial Judiciary
                        Decided 1 February 2019
                         ________________________

Military Judge: Michael D. Schag.
Approved sentence: Dishonorable discharge, confinement for 11 years,
and forfeiture of all pay and allowances. Sentence adjudged 26 June
2017 by GCM convened at Fort Leavenworth, Kansas.
For Appellant: Lieutenant Colonel Garrett M. Condon, USAF; Major
Dustin J. Weisman, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Re-
becca A. Magnone, USAF; Mary Ellen Payne, Esquire.
Before HUYGEN, MINK, and CARRILLO, Appellate Military Judges.
Judge CARRILLO delivered the opinion of the court, in which Senior
Judge HUYGEN and Judge MINK joined.
                         ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                         ________________________

CARRILLO, Judge:
   A general court-martial composed of a military judge sitting alone found
Appellant guilty, consistent with his pleas, of one charge and one specifica-
                    United States v. Merritt, No. ACM 39350


tion of indecent liberty with a child, in violation of Article 120(j), Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 920(j).1
    Appellant was sentenced to a dishonorable discharge, 11 years of con-
finement, forfeiture of all pay and allowances, and reduction to the grade of
E-1. There was no pretrial agreement in this case. The convening authority
approved the sentence as adjudged except for the reduction to E-1.2
   Appellant asserts two assignments of error: (1) whether the military judge
erred in permitting two witnesses to testify as surrogates for the victim to
admit victim impact testimony and (2) whether Appellant’s sentence is inap-
propriately severe. We find no error that materially prejudiced Appellant’s
substantial rights. Accordingly, we affirm the findings and sentence.

                                 I. BACKGROUND
   The court-martial that is the subject of the appeal now before the court
was Appellant’s third.
    At Appellant’s first trial in 2014, then-Technical Sergeant Merritt pleaded
and was found guilty of six charges and 16 specifications for conduct in viola-
tion of Articles 80, 120, 120b, 125, 128, and 134, UCMJ, 10 U.S.C. §§ 880,
920, 920b, 925, 928, 934. He was sentenced to a dishonorable discharge, con-
finement for 50 years, forfeiture of all pay and allowances, and reduction to
the grade of E-1. The convening authority approved 25 years of confinement
in accordance with the pretrial agreement and disapproved the adjudged for-
feitures but otherwise approved the adjudged sentence. See United States v.
Merritt, No. ACM 38653, 2015 CCA LEXIS 382, at *1 (A.F. Ct. Crim. App. 10
Sep. 2015) (unpub. op.), rev. denied, 

(C.A.A.F. 2015). At a second
court-martial in 2015, Appellant pleaded and was found guilty of one charge
and two specifications for conduct in violation of Article 120, UCMJ, 10
U.S.C. § 920. He was sentenced to a dishonorable discharge, confinement for
10 years, forfeiture of all pay and allowances, and reduction to the grade of E-
1. Pursuant to a pretrial agreement, the convening authority approved nine
years of confinement but otherwise approved the adjudged sentence. See
United States v. Merritt, No. ACM 38819, 2016 CCA LEXIS 651, at *1 (A.F.


1 This statute is applicable for offenses occurring on or after 1 October 2007 and be-
fore 28 June 2012. Appellant’s charged offense occurred between on or about 1 March
2010 and on or about 1 August 2010.
2 Appellant was an E-1 at the time the charge in the instant trial was referred and
throughout the proceedings.




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                  United States v. Merritt, No. ACM 39350


Ct. Crim. App. 2 Nov. 2016) (unpub. op.), review denied, 

(C.A.A.F.
2017). Both cases involved multiple victims, all of whom were minor children.
    The relevant facts from Appellant’s second court-martial are as follows:
Appellant pleaded guilty to two specifications of aggravated sexual contact
with a child who had not attained the age of 12 years. The first victim, who
was 10 or 11 years old, was seated on a chair next to Appellant’s step-
daughter, watching a video on Appellant’s computer. Appellant positioned
himself on the floor between them and touched the victim on her thigh for
approximately five minutes and then rubbed her genitalia, outside of her
clothing, for approximately five minutes. For the second victim, who was 7 or
8 years old, Appellant admitted he lifted her up onto his shoulders, caressed
her inner thighs, and placed his hands under her shorts near her crotch.
    In 2010, Appellant was stationed at Ramstein Air Base (AB), Germany.
The victim in this case, DS, was 10 years old at the time and lived with her
parents, who were also stationed at Ramstein AB. DS was close friends with
Appellant’s step-daughter, and the two girls often played at Appellant’s
home. During one of DS’s visits to Appellant’s home, Appellant asked to
speak with DS privately. DS walked into Appellant’s bedroom and Appellant
followed her. Appellant closed and locked the bedroom door. He then removed
DS’s pants, touched the inside waistband of her underwear, sniffed her groin,
and made sexually suggestive comments.



                               II. DISCUSSION
A. Testimony of Sentencing Witnesses
    Appellant alleges that the military judge abused his discretion by permit-
ting AG and Dr. FL to testify as “surrogates” for DS and further specifies that
AG’s testimony included improper hearsay and that Dr. FL’s testimony was
not properly limited to expert opinion. Regarding AG’s testimony, we find er-
ror but no prejudice; regarding Dr. FL’s testimony, we find no error.
    The Government called two sentencing witnesses: AG, who is DS’s moth-
er, and Dr. FL, who was recognized as an expert in general psychology, pur-
suant to Rule for Courts-Martial (R.C.M.) 1001(b).
    After AG and Dr. FL testified and the Government finished presenting its
sentencing case, DS, 17 years of age at trial, made an unsworn victim impact
statement pursuant to Rule for Courts-Martial (R.C.M.) 1001A. DS told the
court how what happened to her when she “was only ten years old [had] for-
ever changed [her] life.” She gave details about her subsequent depression,
suicide attempts, sleep problems, discomfort with sexual jokes, being


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                   United States v. Merritt, No. ACM 39350


“freaked” out by military men, being “uncomfortable” with sex education at
school, changes to her previously “bubbly and outgoing” personality, and her
fear of people in general.
    1. AG’s Testimony
       a. Additional Background
    AG testified about her observations that DS was no longer a “bubbly
child” and that DS had become reclusive and stayed in her room a lot after
the incident with Appellant.3
   AG also testified about DS’s religious practices and belief in God. Trial de-
fense counsel objected on relevance grounds, and the Government offered the
statements as “victim impact . . . . It’s the effects on the victim herself and
her religious beliefs based on what has happened to her.” The military judge
overruled the objection. AG then testified that, after the incident with Appel-
lant, DS “stopped going to church. She stopped believing in God completely.”
    According to AG, when DS “gets stressed out or uncomfortable,” she
“cut[s]” herself by gouging her arms with her fingernails. When AG further
stated that “[o]n one occasion at school [DS] came home with cuts all over her
arms. She had told me that ----,” trial defense counsel immediately objected
on the basis of hearsay, and the military judge sustained the objection. Fol-
lowing the ruling, the trial counsel then asked AG if she knew why DS did
that, AG responded, “I do now. At the time I did not.” Trial counsel asked a
follow-on question, “Was it because of this incident?” Trial defense counsel
again objected on the basis of hearsay. Trial counsel explained that it was be-
ing offered as “effect on the listener” and “victim impact.” The military judge
then overruled the objection. Trial counsel did not repeat the question, and
AG never answered it.
   AG further testified that DS attempted suicide at least three times. When
asked if these occasions were “based off of this incident, this crime [by Appel-
lant],” AG responded, “Absolutely, yes.” Trial defense counsel did not object.
       b. Law
    We review a military judge’s decision to admit or exclude evidence for an
abuse of discretion. United States v. Bowen, 

, 87 (C.A.A.F. 2017)
(citation omitted). “An abuse of discretion occurs when a military judge either
erroneously applies the law or clearly errs in making his or her findings of


3Appellant concedes that these statements were proper evidence in aggravation un-
der R.C.M. 1001(b)(4).




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                   United States v. Merritt, No. ACM 39350


fact.” United States v. Donaldson, 

, 482 (C.A.A.F. 2003) (citing
United States v. Humpherys, 

, 90 (C.A.A.F. 2002)).
    R.C.M. 1001(b)(4) provides for sentencing evidence in aggravation, which
includes “evidence of financial, social, psychological, and medical impact on or
cost to any person or entity who was the victim of an offense commited by the
accused.” Evidence in aggravation is presented by the Government under
R.C.M. 1001(b), but information about “victim impact” is presented by a
crime victim under R.C.M. 1001A. “Victim impact” includes “any financial,
social, psychological, or medical impact on the victim directly relating to or
arising from the offense of which the accused has been found guilty.” R.C.M.
1001A(b)(2). R.C.M. 1001A(e) allows a victim to make an unsworn statement.
    Hearsay is defined as “an out-of-court statement made by a declarant that
is ‘offered in evidence to prove the truth of the matter asserted’ in that
statement.” United States v. McCaskey, 

, 190–91 (C.M.A. 1990)
(quoting Mil. R. Evid. 801(c)). “Unless such a statement meets at least one of
the specific and time-tested exceptions . . . the general rule is that hearsay is
inadmissible.” 

(internal citation omitted) (citing Mil. R. Evid. 802).
Statements made not for their substance but for their “effect on the listener”
may be admissible. United States v. Barnes, No. ACM 38720, 2016 CCA LEX-
IS 267, at *15–17 (A.F. Ct. Crim. App. 27 Apr. 2016) (unpub. op.) (victim’s
disclosure to great-grandmother admissible to show what actions the great-
grandmother took after the disclosure).
       c. Analysis
    Trial counsel called AG to testify that DS stopped believing in God, “cut”
herself, and attempted suicide because of the incident with Appellant. We
analyze each in turn. First, at trial, defense counsel objected to the testimony
about religion on relevance grounds; trial counsel offered it on the basis of
victim impact. Appellant now contends that there is “no rational basis for
[AG’s] knowledge [that DS no longer believed in God] other than hearsay or
speculation” and therefore the military judge erred by allowing AG’s testimo-
ny. We agree that the military judge erred with regard to AG’s testimony
about DS’s religious belief but find that any error did not prejudice Appellant.
    We find that hearsay was implicated in AG’s testimony that DS stopped
believing in God. That DS stopped going to church was a legitimate observa-
tion by AG of DS’s behavior (and also relevant evidence in aggravation). But
AG could have only known that DS stopped believing in God because of hear-
say from DS or speculation by AG. See Mil. R. Evid. 801(c). Either way, AG’s
testimony about DS’s religious belief or lack thereof should not have been
admitted, and we find the military judge abused his discretion when he did
so.


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                  United States v. Merritt, No. ACM 39350


    Trial counsel also asked AG about DS’s cutting and suicide attempts. Af-
ter the military judge overruled defense counsel’s objection to whether DS cut
herself because of the incident with Appellant, AG did not testify about the
reasons for DS’s cutting. Next, when trial counsel asked AG whether DS’s
suicide attempts were due to the incident with Appellant, defense counsel did
not object. Because there was no specific testimony from AG about why DS
cut herself and no objection to AG’s testimony about why DS attempted sui-
cide, we find no error. Furthermore, AG’s testimony that DS cut herself and
attempted suicide was observation about DS’s behavior and, like AG’s obser-
vation of changes to DS’s personality, admissible. The implication that DS’s
self-harm resulted from Appellant’s crime flows as a reasonable inference
from the fact that the self-harm only occurred after Appellant sexually
abused DS. Thus, AG’s testimony was not hearsay or based on hearsay; it
was evidence of the psychological impact on DS of Appellant’s crime, or evi-
dence in aggravation admissible under R.C.M. 1001(b)(4).
     Having determined the military judge abused his discretion by admitting
AG’s testimony that DS no longer believed in God, we consider the impact of
the error on the adjudged sentence. “When there is error in the admission of
sentencing evidence, the test for prejudice ‘is whether the error substantially
influenced the adjudged sentence.’” United States v. Barker, 

, 384
(C.A.A.F. 2018) (quoting United States v. Sanders, 

, 346 (C.A.A.F.
2009)). In determining whether an error substantially influenced an adjudged
sentence, we consider four factors: “(1) the strength of the Government’s case;
(2) the strength of the defense case; (3) the materiality of the evidence in
question; and (4) the quality of the evidence in question.” 

States v. Bowen, 

, 89 (C.A.A.F. 2017)). “An error is more likely to be
prejudicial if the fact was not already obvious from the other evidence pre-
sented at trial and would have provided new ammunition against an appel-
lant.” 

States v. Harrow, 

, 200 (C.A.A.F. 2007)).
    In this case, the Government’s case was very strong. Appellant in his
guilty plea explained in detail how he sexually abused DS when she was 10
years old. The military judge also had ample aggravation evidence to consider
as Appellant had a history of documented misconduct, specifically, two court-
martial convictions for sexually abusing multiple children. The defense case
was relatively weak, consisting simply of Appellant’s written, three-page un-
sworn statement and a very brief in-court unsworn statement wherein he
apologized and asked for leniency. We next consider the materiality and qual-
ity of AG’s testimony that DS stopped believing in God. After both AG and
Dr. FL testified, DS provided victim impact information by making an in-
court unsworn statement pursuant to R.C.M. 1001A. DS explained the im-
pact Appellant’s crime had on her, and she described some of the same im-
pacts described by AG. DS explained how what happened to her when she

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                   United States v. Merritt, No. ACM 39350


was 10 years old “forever changed” her life. DS became depressed and suicid-
al and experienced other psychological impacts. In light of DS’s statement,
and AG’s testimony that DS stopped going to church, the materiality of AG’s
testimony about DS’s religious belief was low. While the quality of AG’s tes-
timony about the impact of Appellant’s crime on DS was high, it was largely
cumulative to the victim impact DS herself provided in her unsworn state-
ment to the court. Accordingly, we find that, although the military judge
erred by admitting AG’s testimony regarding DS’s religious belief, the ad-
judged sentence was not substantially influenced by the error and thus the
error did not prejudice Appellant.
   2. Dr. FL’s Testimony
       a. Additional Background
    After AG, the Government next called Dr. FL, who had a long career as a
clinical psychologist and was familiar with characteristics and behaviors of
child sexual abuse victims. He was qualified at trial as an expert in general
psychology. To prepare for trial, Dr. FL reviewed Appellant’s prior convic-
tions, the Air Force Office of Special Investigations’ report of investigation,
some “past testimony,” and DS’s forensic interview. He also interviewed DS
and AG.
    Trial counsel began the direct examination of Dr. FL by asking about “re-
processing,” which Dr. FL explained as “having to reprocess the trauma as
you age, at different mileposts of aging.” Trial defense counsel objected based
on relevancy and under Mil. R. Evid. 403 because DS had not yet testified
and Dr. FL’s testimony was simply “additional information to impassion the
Court with regard to victim impact.” Trial counsel proffered that “it goes ab-
solutely to victim impact” and, to illustrate the impact, Dr. FL would testify
about several “psychological theories” and then explain how the answers to
questions during his interviews with DS and AG were consistent with the
theories. The military judge overruled the objection.
    Trial counsel next asked Dr. FL about child victims and religion and what
he had observed or heard DS say with regard to the issue. Dr. FL testified
“we talked about what happened . . . the word she used was ‘terrified.’” Trial
defense counsel objected on hearsay grounds; trial counsel offered to rephrase
the question; and the military judge sustained the objection. Trial counsel
instead asked how some child sex abuse victims deal with religion after an
offense, and Dr. FL responded that “some turn away . . . . [DS] turned away
from religion.”
    Without further defense objection, Dr. FL testified about several addi-
tional theories: behavior of victims of child sexual abuse, religion, depersonal-
ization, anxiety, avoidance behavior, sleep behavior, social interactions, hid-


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                   United States v. Merritt, No. ACM 39350


ing of emotions, reverse parenting, cutting, and suicide attempts. For each of
these theories, Dr. FL first explained the theory and then offered DS’s own
statements as they related to each theory.
    Under cross-examination, Dr. FL testified that the first time he met DS
was the day before trial when he met with her for an hour and a half with
five other adults in the room and that he did not go into the details of the
other “major event” of her life—her parents’ divorce. He also testified that,
although he had asked to review DS’s medical records, they were not provid-
ed. When trial defense counsel asked Dr. FL about connecting the incident
with Appellant to DS’s symptoms of trauma, Dr. FL testified “that the major-
ity of what she said is a result of that event. Yes, sir. [But DS] did indicate
that the divorce [of her parents] did exacerbate her depression.”
       b. Law
    We review a military judge’s ruling admitting expert testimony for an
abuse of discretion. United States v. Norris, 

, 212 (C.A.A.F. 2001)
(citations omitted). Mil. R. Evid. 702 prescribes:
       A witness who is qualified as an expert by knowledge, skill, ex-
       perience, training, or education may testify in the form of an
       opinion or otherwise if:
       (a) the expert’s scientific, technical, or other specialized
       knowledge will help the trier of fact to understand the evidence
       or to determine a fact in issue;
       (b) the testimony is based on sufficient facts or data;
       (c) the testimony is the product of reliable principles and meth-
       ods; and
       (d) the expert has reliably applied the principles and methods
       to the facts of the case.
   “In a trial involving the sexual assault of a child, ‘[a]n expert may testify
as to what symptoms are found among children who have suffered sexual
abuse and whether the child-witness has exhibited these symptoms.’” United
States v. Mullins, 

, 116 (C.A.A.F. 2010) (quoting United States v.
Birdsall, 

, 409 (C.A.A.F. 1998)). The expert’s opinion may be
based on inadmissible facts or data. Mil. R. Evid. 703. The underlying facts
may be disclosed by the expert if the military judge finds that their probative
value substantially outweighs their prejudicial effect. 

Mil. R. Evid. 702, an expert may “testify in the form of an
opinion or otherwise.” The expert’s opinion may be based on facts or data the




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                  United States v. Merritt, No. ACM 39350


expert has either personally observed or has been made aware of. Mil. R.
Evid 703.
       c. Analysis
    Dr. FL testified as an expert in psychology, presented various psychologi-
cal theories about how a crime impacts a victim, and explained how Appel-
lant’s crime impacted DS. Appellant asserts that most of Dr. FL’s testimony
was improper and that the Government “smuggled” in hearsay of DS’s state-
ments through Dr. FL’s testimony. We are not persuaded.
    In this case, Dr. FL, a licensed psychologist since 1971, reviewed DS’s fo-
rensic interview and conducted his own interviews of DS and AG. At trial, Dr.
FL testified to psychological effects experienced by children who have suf-
fered sexual abuse. He also testified whether DS had exhibited the symptoms
of abuse. This testimony is permissible. See 

.
     In United States v. Stark, 

, 329 (C.M.A. 1990), an expert psy-
chologist viewed the videotaped interviews of the victims, two young boys,
and conducted his own interview of the boys and their father. The expert tes-
tified at trial about some of the short-term effects of sexual abuse exhibited
by the boys, which included fear, guilt, and shame. 

court
held the basis for the expert testimony was sufficient under Mil. R. Evid. 703
because the expert had conducted personal interviews and observed the boys
in their videotaped interviews and at trial. 

The court further noted
that, based on the “sufficient basis and defense counsel’s own vigorous cross-
examination, the members were properly left to attach whatever weight they
felt appropriate” to the expert’s opinions. 

to Appellant’s case, we find there was a sufficient basis in
this case for the military judge to allow Dr. FL’s expert testimony because Dr.
FL interviewed DS and AG and watched DS’s forensic interview. Although
Dr. FL was not asked each time if he had an “opinion,” he nonetheless ren-
dered one in the form of testifying to some symptoms commonly faced by
child sexual assault victims and then telling the court what he learned from
DS about each symptom as she experienced it. Dr. FL was not an improper
“surrogate” for DS but rather provided proper expert testimony. Also as in
Stark, trial defense counsel in this case conducted a vigorous cross-
examination, during which Dr. FL stated that DS’s parents’ divorce exacer-
bated her depression and that the records he had requested but not received
(DS’s medical and school records) would have been helpful in his psychologi-
cal evaluation. The military judge, therefore, could attach whatever weight
he deemed appropriate to the expert testimony. Thus, we find that Dr. FL’s
testimony was properly admitted as expert testimony and evidence in aggra-
vation of the psychological impact of Appellant’s crime on DS.


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                  United States v. Merritt, No. ACM 39350


B. Sentence Severity
    Appellant argues that 11 years of confinement is inappropriately severe
for “what amounted to a relatively momentary and non-invasive sexual as-
sault of a child” and that his sentence is highly disparate to those in similar
cases. He urges us to compare his sentence in this case to the sentence he re-
ceived in his second court-martial because they are “closely related,” and for
which nine years of confinement was approved, pursuant to a pretrial agree-
ment. The facts of the aggravated sexual conduct in that case are similar in
that Appellant apparently exploited his step-daughter’s friendships to gain
access to his victims. Otherwise, the facts of each assault vary. In this case,
he touched DS in his bedroom while she was alone and away from his step-
daughter; in the other case he touched one victim while she was watching a
video right next to his step-daughter, and he touched the other victim after
putting her up on his shoulders (in an unknown location).
    We review sentence appropriateness de novo. United States v. Lane, 

, 2 (C.A.A.F. 2006) (citing United States v. Cole, 

, 272
(C.M.A. 1990)). We may affirm only as much of the sentence as we find cor-
rect in law and fact and determine should be approved on the basis of the en-
tire record. Article 66(c), UCMJ, 10 U.S.C. § 866(c). “We assess sentence ap-
propriateness by considering the particular appellant, the nature and seri-
ousness of the offense[s], the appellant’s record of service, and all matters
contained in the record of trial.” United States v. Sauk, 

, 606 (A.F.
Ct. Crim. App. 2015) (en banc) (alteration in original) (quoting United States
v. Anderson, 

, 705 (A.F. Ct. Crim. App. 2009) (per curiam)). While
we have great discretion in determining whether a particular sentence is ap-
propriate, we have no authority to grant mercy. United States v. Nerad, 

, 146 (C.A.A.F. 2010) (citation omitted).
    We “are required to engage in sentence comparison only ‘in those rare in-
stances in which sentence appropriateness can be fairly determined only by
reference to disparate sentences adjudged in closely related cases.’”
United States v. Sothen, 

, 296 (C.A.A.F. 2001) (quoting United
States v. Ballard, 

, 283 (C.M.A. 1985)). “An appellant who asks
[this court] to engage in sentence comparison bears the burden of demon-
strating that any cited cases are ‘closely related’ to the appellant’s case, and
that the sentences are ‘highly disparate.’” 

States v. Lacy,

, 288 (C.A.A.F. 1999)). If appellant meets his burden, “the burden
shifts to the Government to show a rational basis for the disparity.” 

). Cases are “closely related” when, for example, they
involve “coactors involved in a common crime, servicemembers involved in a
common or parallel scheme, or some other direct nexus between the service-
members whose sentences are sought to be compared.” 

.


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                   United States v. Merritt, No. ACM 39350


    We do not decide whether Appellant’s case is closely related to his second
court-martial because, assuming arguendo that Appellant has met his burden
to show the cases are “closely related,” we still would not find the 11-year
sentence from his third court-martial highly disparate. “Sentence comparison
does not require sentence equation.” United States v. Durant, 

,
260 (C.A.A.F. 2001) (citations omitted). Appellant’s sentence to 11 years of
confinement for an offense involving one minor victim is not highly disparate
when compared to the adjudged 10-year sentence from his second court-
martial for offenses involving two different victims. The military judge in this
case properly considered both prior courts-martial and other misconduct as
aggravation evidence.
   After giving individualized consideration to Appellant, the nature and se-
verity of his offense, and all other matters contained in the record of trial, we
do not find Appellant’s sentence inappropriately severe.

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


                     FOR THE COURT



                     CAROL K. JOYCE
                     Clerk of the Court




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