Filed: Oct. 16, 2020
Latest Update: Oct. 19, 2020
Summary: U NITED S TATES AIR F ORCE C OURT OF C RIMINAL APPEALS _ No. ACM 39676 _ UNITED STATES Appellee v. D’Andre M. JOHNSON Second Lieutenant (O-1), U.S. Air Force, Appellant _ Appeal from the United States Air Force Trial Judiciary Decided 16 October 2020 _ Military Judge: W. Shane Cohen Sentence: Dismissal, confinement for 10 years, and forfeiture of all pay and allowances. Sentence adjudged 1 December 2018 by GCM convened at Moody Air Force Base, Georgia. For Appellant: Mark C. Bruegger, Esquire; C
Summary: U NITED S TATES AIR F ORCE C OURT OF C RIMINAL APPEALS _ No. ACM 39676 _ UNITED STATES Appellee v. D’Andre M. JOHNSON Second Lieutenant (O-1), U.S. Air Force, Appellant _ Appeal from the United States Air Force Trial Judiciary Decided 16 October 2020 _ Military Judge: W. Shane Cohen Sentence: Dismissal, confinement for 10 years, and forfeiture of all pay and allowances. Sentence adjudged 1 December 2018 by GCM convened at Moody Air Force Base, Georgia. For Appellant: Mark C. Bruegger, Esquire; Ca..
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U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39676
________________________
UNITED STATES
Appellee
v.
D’Andre M. JOHNSON
Second Lieutenant (O-1), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 16 October 2020
________________________
Military Judge: W. Shane Cohen
Sentence: Dismissal, confinement for 10 years, and forfeiture of all pay
and allowances. Sentence adjudged 1 December 2018 by GCM convened
at Moody Air Force Base, Georgia.
For Appellant: Mark C. Bruegger, Esquire; Catherine M. Cherkasky,
Esquire.
For Appellee: Lieutenant Colonel Brian C. Mason, USAF; Major Anne
M. Delmare, USAF; Mary Ellen Payne, Esquire.
Before POSCH, RICHARDSON, and MEGINLEY, Appellate Military
Judges.
Judge MEGINLEY delivered the opinion of the court, in which Senior
Judge POSCH and Judge RICHARDSON joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
MEGINLEY, Judge:
Contrary to his pleas, a general court-martial composed of officer members
convicted Appellant of one specification of sexual assault of AM, by penetrating
United States v. Johnson, No. ACM 39676
AM’s vulva with his penis, while AM was incapable of consenting to the sexual
act due to impairment by alcohol, and one specification of sexual assault of MP,
by penetrating her vulva with his finger by causing bodily harm, both in viola-
tion of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920. 1
The panel sentenced Appellant to a dismissal, confinement for ten years, and
forfeiture of all pay and allowances. The military judge credited Appellant with
138 days against his sentence for time Appellant spent in pretrial confinement.
The convening authority approved the sentence as adjudged.
Appellant raises three assignments of error (AOE) on appeal: (1) whether
the evidence is legally and factually sufficient to support the conviction of sex-
ual assault against MP; (2) whether trial defense counsel provided ineffective
assistance of counsel; and (3) whether Appellant suffered cruel and unusual
punishment in violation of the Eighth Amendment 2 and Article 55, UCMJ, 10
U.S.C. § 855, when he was not given proper medical treatment while in con-
finement. Alternatively, Appellant contends that the conditions of his post-
trial confinement render his sentence inappropriately severe, warranting relief
under Article 66(c), UCMJ, 10 U.S.C. § 866(c). In addition, as part of our con-
sideration of Appellant’s second AOE, we consider the issue of whether the
military judge abused his discretion in allowing portions of MP’s unsworn vic-
tim impact statement to be presented to the members at the sentencing hear-
ing.
Finding no error materially prejudicial to a substantial right of Appellant,
we affirm the findings and sentence.
I. BACKGROUND
Appellant graduated from the United States Air Force Academy in 2017.
After graduation, Appellant was assigned to Moody Air Force Base, Georgia,
as a Logistics Readiness Officer. After his arrival, Appellant subsequently
joined a fitness center in neighboring Valdosta, Georgia, where he met MP,
who was an assistant manager at the gym.
Until the night of the offense, MP had seen Appellant twice and talked to
him once, and, although she knew him from the gym, AM had never talked to
Appellant directly. Appellant started “following” MP on the social networking
application Instagram, and on 14 September 2017, made a comment to one of
MP’s posts at 2159 hours. Appellant and MP continued to chat via Instagram;
1 All references in this opinion to the Uniform Code of Military Justice (UCMJ), Rules
for Courts-Martial, and Military Rules of Evidence are to the Manual for Courts-Mar-
tial, United States (2016 ed.).
2 U.S. CONST. amend. VIII.
2
United States v. Johnson, No. ACM 39676
on 15 September 2017, MP gave Appellant her phone number after Appellant
requested her number and they texted back and forth. The Instagram and text
messages consisted of messages of a flirtatious nature, discussions about foot-
ball and families, and some sexual innuendos. On 16 September 2017, MP told
Appellant of her plans for that evening, which included going to a local bar,
known as the Bluewater Bar, with some friends, including her friend AM (also
her co-worker). Appellant responded that maybe he would see her “out Satur-
day night.” In all, before MP and Appellant would meet up on the night of 16
September 2017, they had been messaging and texting each other for less than
48 hours.
On 16 September 2017, MP and AM went out to dinner with friends. MP
had a mixed drink at dinner, while AM did not have any alcohol. Thereafter,
the group went to the house of a friend, JP, where MP had another mixed
drink. At around 2330 hours, the group left for Bluewater. The bar was ap-
proximately a five-minute walk from JP’s house. AM consumed shots and
mixed drinks at JP’s house prior to going to Bluewater, and she had more shots
and mixed drinks at Bluewater. AM consumed “a lot” of alcohol, but could not
recall how much. She opined she had “never drank that much” alcohol in her
life.
Appellant arrived at Bluewater around 2100 that evening. Prior to his ar-
rival, Appellant consumed five or six shots, along with five or six beers, with
friends at another bar. After MP arrived at Bluewater, she eventually met up
with Appellant. At 0102 on 17 September 2017, Appellant and MP were texting
with each other, with Appellant asking MP where she was in the bar. While at
Bluewater, MP and Appellant spent time with each other at the bar, grinding 3
on each other while dancing and kissing.
At approximately 0200 on 17 September 2017, Bluewater closed. A group
of individuals, including MP, AM, Appellant, Senior Airman (SrA) CC, and oth-
ers, decided to go to JP’s house; JP and her male friend, SrA KC, were already
at JP’s house. According to SrA CC, the group left Bluewater between 0200
and 0215. AM was very intoxicated, slurring her words, unbalanced, and fall-
ing to the ground. Because of her condition, SrA CC gave her a “piggyback ride”
to JP’s house.
Once they arrived at JP’s house, the group mingled outside for an undeter-
mined amount of time before going inside. MP and Appellant continued kissing
outside of JP’s residence. MP asked JP if Appellant could “stay” the night at
JP’s house; JP agreed.
3 When defense counsel asked the witness, “What is grinding?” the witness replied,
“Female in front of the male, rubbing against each other.”
3
United States v. Johnson, No. ACM 39676
Some individuals eventually left JP’s house. Those that remained were MP,
AM, Appellant, and SrA CC, along with JP and SrA KC. Once the group en-
tered the house, SrA CC “plopped [AM] down into the chair” near the front
door. Although the group wanted to continue drinking and play cards, they
were concerned about AM because she was “way out of it and looked extremely
intoxicated.” It was decided to put AM in JP’s son’s vacant room, which was
next to the bathroom. As SrA CC was getting ready to pick up AM to move her,
Appellant picked AM up “like a child” and carried her to JP’s son’s bedroom.
The group followed Appellant into the bedroom as he laid AM on the bed. The
group suggested SrA CC stay with AM and cuddle with her until she fell asleep,
which he agreed to do. SrA CC lay down next to AM on his back, and AM cud-
dled against SrA CC, putting her left leg and arm across his body, and her head
on SrA CC's chest. Shortly after, AM fell asleep. AM still had her clothes on;
she was wearing a “romper,” a one-piece outfit (MP was also wearing a romper
during the evening). SrA CC testified the bedroom was not pitch black, as the
door had been cracked open to allow some light from the hallway to come into
the room.
SrA KC testified that after putting AM to bed and after shutting the door,
Appellant and MP were on the couch kissing and touching each other. SrA KC
and JP asked if MP and Appellant needed a blanket. When they did not get a
response, SrA KC stated [he] “threw a blanket at them, turned the lights off,
and . . . went back to [JP’s] room.” SrA KC stated he observed Appellant and
MP from the time they entered the house until he went to bed, and although
she was drunk by appearance, MP was coherent. SrA KC also stated he heard
laughter from MP and Appellant and that they “were very physically con-
nected.”
JP testified that when she woke up to go to the bathroom, she went into the
living room to check on MP and Appellant and found them “making out” on the
couch. One was on top of the other, although she did not recall who was on top.
When asked by defense counsel if JP had any concern about MP’s well-being
when she entered the living room, she stated:
No, if I thought something was of a harm, I would have done
something about it. . . . [A]t that moment, I didn’t see anything
that was going wrong. Not saying that something couldn’t have
gone wrong afterwards.
SrA CC received a text at 0254 and responded to that text at 0302. Shortly
after, he fell asleep. At approximately 0330, while still lying next to AM, SrA
CC woke up feeling something was strange. When he opened his eyes, he saw
Appellant behind AM. He could see Appellant was naked. SrA CC further
stated AM was “positioned as her right knee was on the carpet and her left
4
United States v. Johnson, No. ACM 39676
knee was on the bed. It was not on me anymore, and as in she was still on her
stomach and her head was still on my chest.” SrA CC stated Appellant was on
both knees, “moving back and forth in a thrusting motion.” At this point, as he
was waking up, SrA CC realized that Appellant was penetrating AM’s vagina
with his penis. SrA CC “tried to shove” Appellant off AM, and was finally able
to push him off AM within “about three pushes.” SrA CC stated that AM’s
romper had been slid to the right to allow Appellant’s penis to enter her vagina.
SrA CC was “[o]ne hundred percent” confident he saw Appellant’s penis inside
AM’s vagina, stating he could tell Appellant was not wearing a condom and
that he “vividly remember[ed] the shape of [Appellant’s] penis. Like that will
not—never leave my head—ever.”
While SrA CC was pushing Appellant off AM, Appellant said, “It’s okay.
It’s [MP].” SrA CC said, “No man. It’s not [AM]—I mean [MP]. It’s [AM].” Ap-
pellant then stated, “No. This is [MP].” SrA CC told Appellant, “You need to
get off.” Appellant then stated, “Oh,” and after SrA CC pushed Appellant off
AM, Appellant kept saying, “I’m sorry. I’m sorry.” SrA CC then escorted Ap-
pellant out of the room and locked the door. During this time, AM was still
unconscious with her eyes shut, and she was still lying with half her body on
the bed, even after SrA CC escorted Appellant out of the room.
SrA CC panicked. After about 10–15 minutes trying to decide what to do,
at 0343, SrA CC texted his roommate, SrA DS, and his other roommate, JL.
SrA DS called him back. SrA CC walked out of the bedroom and into the living
room, where he saw MP and Appellant both on the couch. MP was on one side;
Appellant was on the other. Both were sleeping. SrA CC tried to wake up MP,
telling her, “Hey. This is an emergency. You need to go into the room with
[AM].” MP would not wake up. According to SrA CC, MP was “unconscious
however, she was moving. It looked like she was fighting to wake up however,
she just couldn’t get there until I had to put my hands on her and shake her
[on her shoulders] a little bit, be a little louder, and then finally she did . . .
awake to understand what I was saying.” SrA CC escorted MP to the bedroom
where AM was lying. AM was still “completely” unconscious. MP fell asleep on
the floor; AM was on the bed.
SrA DS showed up at the house at approximately 0400. When he arrived,
Appellant was on the couch. SrA DS did a sweep of the house to make sure
there were no kids in the house. SrA DS and SrA CC had trouble waking Ap-
pellant, who was in his underwear (described by SrA DS as “gray with a black
waistband, spandex type”) and was “passed out unconsciously on the couch.”
Appellant’s clothes were on the floor next to the couch. SrA DS tried to wake
Appellant, telling him, “Hey. You’re not wanted here. You need to leave right
now.” Using Appellant’s phone (which Appellant unlocked), SrA DS called Ap-
pellant an “Uber” ride to get him out of the house.
5
United States v. Johnson, No. ACM 39676
SrA DS woke JP and SrA KC up and told them what was going on. Then
SrA CC and SrA DS helped Appellant off the sofa to get him dressed. Appel-
lant’s clothes were on the floor next to the couch. Appellant dressed in the
bathroom. SrA DS walked Appellant outside, sat him down, and waited for the
Uber. The Uber arrived a short time later and took Appellant to his home.
According to the Uber driver’s video, Appellant was picked up from JP’s resi-
dence at 0417 and dropped off at his own residence at 0430.
After Appellant left in the Uber, there was additional discussion on what
to do about AM, who was still unconscious in the bedroom. SrA KC, who was a
security forces member, called his supervisor to discuss who would have juris-
diction. His supervisor told him to call 911. JP went to the room where AM and
MP were sleeping and at approximately 0534, SrA KC called 911 and reported
that AM had been sexually assaulted. 4 When SrA KC called 911, he was not
aware MP believed Appellant had also sexually assaulted her.
Officer BT, a deputy sheriff, responded to the 911 call. Initially, he was told
of only one victim. Officer BT talked to SrA CC about the situation and then
went into the bedroom where AM was still unconscious. Officer BT stated,
“[AM] was not coherent at the time and she was still in the process of being
woke up in the front bedroom.” At some point while Officer BT was there, AM
woke up and was “hysterically crying” after being told what happened. After
talking to a few people, Officer BT then spoke with MP, who made a comment
that “she didn’t consent either.” Officer BT began to ask questions to MP, who
told him that Appellant had digitally penetrated her, and that the entire time
he was trying to do this, she was “trying to push him off, and was telling him
to stop.” At this point, Officer BT believed he had two victims and arranged for
both AM and MP to undergo a forensic evaluation for sexual assault.
DNA was later taken from Appellant, AM, and MP. Although no semen was
found in MP’s underwear, AM’s cervical swabs, or AM’s rectal swaps, Appel-
lant’s DNA was found in AM’s cervix and rectum. AM’s DNA was also found in
Appellant’s underwear. The results also indicated that Appellant’s and AM’s
DNA were found in MP’s underwear.
4SrA KC recalled calling 911 at approximately 0520; Officer BT testified the call came
in at 0534. He then stated it only took him five minutes to get to JP’s residence.
6
United States v. Johnson, No. ACM 39676
II. DISCUSSION
A. Legal and Factual Sufficiency of Sexual Assault of MP
1. Additional Background
At trial, MP testified that even though she was texting with Appellant, she
tried to deflect some interest in Appellant through some of her responses.
Nonetheless, MP told Appellant she would be at the Bluewater Bar the evening
of 16 September 2017. MP stated she met up with Appellant at Bluewater and
he got her a drink. According to her testimony, MP remembered little after this
event. After Appellant brought her a drink, MP stated she did not remember
the following events: (1) dancing with Appellant; (2) leaving Bluewater that
night with Appellant; (3) walking to JP’s house; (4) taking pictures on her
phone; (5) asking JP if Appellant could stay at her house; (6) JP asking MP if
she was okay while she was kissing Appellant on the couch; and (7) JP asking
if MP was okay or if she needed a blanket.
MP testified that her next memory after Appellant brought her a drink at
Bluewater was “waking up on the couch with [Appellant] on top of [her].” She
testified that:
[Appellant] was on top of me kissing me, and I, kind of like, re-
alized, started to realize, kind of what was going on. I remember,
kind of pushing him off, and then, kind of, I guess, went out
again, I guess is a way to put it.
MP stated Appellant was wearing a pink shirt and was pretty sure he had
his pants on.
The next memory MP had was waking up to Appellant having his hand in
her romper outfit. MP stated she had to “push his hands out of me, basically,”
referring to Appellant having his fingers in her vagina. When she realized Ap-
pellant’s hands were inside her, she “had to push them out.” She stated, “I told
him no, and I told him stop.”
MP testified,
I remember pushing him off, and then I remember him finally
getting off, and I thought at that point he had left. So, I curled
over into, like curled over into the couch, basically, I was trying
to go—and trying to go to sleep, but that way he couldn’t get to
me, I thought. And then the next thing I remember, I guess I
heard a sound or something. I am not sure what woke me up,
but I remember seeing him. So, the bathroom light was on, and
I remember seeing him, an outline, in the hallway, and he didn’t
7
United States v. Johnson, No. ACM 39676
have any clothes on, and then I remember him being on top of
me and he was in my face, saying my name.
2. Law
A Court of Criminal Appeals may affirm only such findings of guilty “as it
finds correct in law and fact and determines, on the basis of the entire record,
should be approved.” Article 66(c), UCMJ, 10 U.S.C. § 866(c). “Article 66(c) re-
quires the Courts of Criminal Appeals to conduct a de novo review of legal and
factual sufficiency of the case.” United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002) (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
States v. Robinson, 77 M.J. 294, 297–98 (C.A.A.F. 2018) (quoting United States
v. Rosario,
76 M.J. 114, 117 (C.A.A.F. 2017)). “The term reasonable doubt, how-
ever, does not mean that the evidence must be free from conflict.” United States
v. Wheeler,
76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (citing United States v.
Lips,
22 M.J. 679, 684 (A.F.C.M.R. 1986)), aff’d,
77 M.J. 289 (C.A.A.F. 2018).
“[I]n resolving questions of legal sufficiency, we are bound to draw every rea-
sonable inference from the evidence of record in favor of the prosecution.”
United States v. Barner,
56 M.J. 131, 134 (C.A.A.F. 2001) (citations omitted).
As a result, “[t]he standard for legal sufficiency involves a very low threshold
to sustain a conviction.” United States v. King,
78 M.J. 218, 221 (C.A.A.F. 2019)
(alteration in original) (citation omitted), cert. denied,
2019 U.S. LEXIS 3102,
139 S. Ct. 1641 (2019).
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,” this court is “convinced of the [appellant]’s guilt beyond a rea-
sonable doubt.” United States v. Reed, 54 M.J. 37, 41 (C.A.A.F. 2000) (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.’”
Wheeler, 76 M.J. at 568
(alteration in original) (quoting
Washington, 57 M.J. at 399). This court’s re-
view of the factual sufficiency of evidence for findings is limited to the evi-
dence admitted at trial. Article 66(c), UCMJ; United States v. Beatty,
64
M.J. 456, 458 (C.A.A.F. 2007) (citations omitted).
Appellant was convicted of sexual assault by bodily harm against MP in
violation of Article 120(b)(1)(B), UCMJ, 10 U.S.C. § 920(b)(1)(B), which re-
quired the Prosecution to prove two elements beyond a reasonable doubt: (1)
8
United States v. Johnson, No. ACM 39676
that Appellant committed a sexual act upon MP by penetrating her vulva with
his fingers; and (2) that Appellant did so by causing bodily harm to MP, to wit:
penetrating her vulva with his fingers without her consent. See Manual for
Courts-Martial, United States (2016 ed.) (MCM), pt. IV, ¶ 45.b.(3)(b). “‘[B]odily
harm’ means any offensive touching of another, however slight, including any
nonconsensual sexual act.” MCM, pt. IV, ¶ 45.a.(g)(3).
With regard to consent, the statute explains,
[t]he term “consent” means a freely given agreement to the con-
duct at issue by a competent person. An expression of lack of
consent through words or conduct means there is no consent.
Lack of verbal or physical resistance or submission resulting
from the use of force, threat of force, or placing another person
in fear does not constitute consent. A current or previous dating
or social or sexual relationship by itself or the manner of dress
of the person involved with the accused in the conduct at issue
shall not constitute consent.
MCM, pt. IV, ¶ 45.a.(g)(8)(A). The statute further explains that “[a] sleeping,
unconscious, or incompetent person cannot consent.” MCM, pt. IV,
¶ 45.a.(g)(8)(B). “Lack of consent may be inferred based on the circumstances
of the offense. All the surrounding circumstances are to be considered in deter-
mining whether a person gave consent, or whether a person did not resist or
ceased to resist only because of another person’s actions.” MCM, pt. IV,
¶ 45.a.(g)(8)(C).
The defense of mistake of fact as to consent requires that an appellant, be-
cause of ignorance or mistake, incorrectly believe that another consented to the
sexual contact. See R.C.M. 916(j)(1). In order to rely on a mistake of fact as to
a consent defense, Appellant’s belief must be honest and reasonable. See id.;
United States v. Gans, No. ACM 39321, 2019 CCA LEXIS 162, at *14 (A.F. Ct.
Crim. App. 11 Apr. 2019) (unpub. op.); United States v. Jones, 49 M.J. 85, 91
(C.A.A.F. 1998) (quoting United States v. Willis,
41 M.J. 435, 438 (C.A.A.F
1995)). Once raised, the Government bears the burden to prove beyond a rea-
sonable doubt that the defense does not exist. R.C.M. 916(b)(1); see United
States v. McDonald,
78 M.J. 376, 379 (C.A.A.F. 2019). Yet, the “burden is on
the actor to obtain consent, rather than the victim to manifest a lack of con-
sent.”
McDonald, 78 M.J. at 381. An “[a]ppellant’s actions could only be con-
sidered innocent if he had formed a reasonable belief that he had obtained con-
sent. The government only needed to prove that he had not done so to eliminate
the mistake of fact defense.”
Id.
9
United States v. Johnson, No. ACM 39676
3. Analysis
The timing of Appellant’s actions towards both MP and AM are critical to
determining legal and factual sufficiency. At 0254 on 17 September 2017, SrA
CC received a text and responded to that text at 0302. Shortly after, he fell
asleep; the door to his room was cracked open. At approximately 0330, SrA CC
awoke to Appellant penetrating AM with his penis while Appellant was on his
knees.
Prior to 0302, there is no indication of any mal-intent on the part of Appel-
lant towards either MP or AM. In fact, regarding MP the converse is true: the
testimony shows that MP was somewhat, if not very, interested in Appellant.
The text messages leading up to Appellant and MP meeting at the Bluewater
show a rapid escalation in MP and Appellant’s relationship. MP was observed
both dancing and “grinding” with Appellant at Bluewater, and kissing him out-
side JP’s residence. No witness indicated MP was in distress at any point dur-
ing the night. MP asked JP if Appellant could stay the night at the house. Both
JP and SrA KC indicated MP was engaged in intimate behavior with Appellant
while in JP’s residence. SrA KC heard laughter coming from the living room.
JP did not sense anything was wrong between MP and Appellant, and even
went so far as to say that if she thought MP was in harm, she would have done
something about the situation. Before 0302, when SrA CC received a text,
there is nothing in the record to suggest that Appellant committed a sexual
assault against MP.
Appellant argues that MP’s claim of sexual assault is inconsistent with the
balance of the evidence and demonstrates Appellant’s reasonable mistake of
fact as to consent. Had MP alleged a sexual assault occurring before SrA CC
fell asleep at 0302, the facts above indicate a viable argument. However, the
fact that AM’s DNA was found in MP’s underwear supports a conclusion that
Appellant sexually assaulted MP after he penetrated AM and before SrA CC
saw MP and Appellant on the couch around 0345. The following evidence sup-
ports this conclusion: (1) Appellant was clothed when MP said “no” and “stop”
on the couch; (2) SrA CC testified he saw Appellant’s clothes near the couch
and Appellant was naked when he was in the bedroom, which supports an in-
ference that Appellant took off his clothes in the living room before he sexually
assaulted AM; (3) Appellant told SrA CC it was okay he was having sex with
MP, when he was actually having sex with AM, and that he was “sorry”; (4)
MP remembered seeing Appellant naked in the hallway; (5) MP testified she
was asleep when Appellant came back to the couch; (6) SrA CC saw MP and
Appellant asleep on the couch when he came out to the living room; and (7)
SrA CC’s observation of Appellant on the couch in his underwear indicated to
him Appellant put his underwear back on after he left AM’s room and returned
to the couch where MP slept. Appellant penetrated AM’s vagina with his penis,
10
United States v. Johnson, No. ACM 39676
and after SrA CC pushed Appellant off AM, Appellant moved back to the couch,
where he digitally penetrated MP’s vagina. The evidence does not support a
finding that Appellant had a reasonable or honest belief that MP was consent-
ing to Appellant’s digital penetration.
Appellant argues that MP had a personal motive to fabricate her allega-
tions against Appellant due to an ongoing child custody battle with her soon-
to-be ex-husband. Appellant hinges this argument on the fact that SrA DS,
who showed up at JP’s house right after the sexual assaults, was a friend of
MP’s soon-to-be ex-husband, and had MP’s ex-husband learned MP had been
engaged in sexual activities “with an accused sexual assaulter on the same
night her friend, AM, was attacked,” it could cast her in an unfavorable light
in those proceedings. Appellant notes the timing of when MP came forward,
stating MP only decided to report her alleged assault after SrA DS showed up.
We find no evidence to support this attack on MP’s credibility. The Defense
has essentially asked us to speculate why MP did not tell anyone what hap-
pened to her before her disclosure to Officer BT. There was no evidence, or
comments, or any reaction to MP seeing SrA DS in a negative light when he
showed up to assist. In fact, SrA DS testified that MP told SrA DS that Appel-
lant pressed on her, that he was aggressive, and that she told him no. MP’s
comments to SrA DS could be viewed as MP trying to prevent or preempt SrA
DS from telling MP’s husband that MP was possibly engaged in sexual activity,
by fabricating a sexual assault when SrA DS suddenly showed up at the house.
However, from this court’s review of the testimony and evidence, the record
suggests this is not the case. Most importantly, there was no evidence SrA DS
called MP’s husband to inform him of what happened to MP. MP did report an
assault to Officer BT. Finally, MP subjected herself to a SANE examination.
In assessing legal sufficiency, we are limited to the evidence produced at
trial and are required to consider it in the light most favorable to the Govern-
ment. In doing so, we conclude a reasonable factfinder could have found beyond
a reasonable doubt all the elements to support Appellant’s conviction of sexual
assault against MP. Furthermore, in assessing factual sufficiency, after weigh-
ing all the evidence in the record of trial and having made allowances for not
having personally observed the witnesses, we are convinced of Appellant’s guilt
beyond a reasonable doubt. Therefore, we find Appellant’s conviction of sexual
assault against MP both legally and factually sufficient.
B. Ineffective Assistance of Counsel Claim
1. Additional Background
Appellant asserts his trial defense counsel, Mr. JMB, Mr. LEC, Mr. JRH,
and Captain (Capt) RM, were ineffective in that they (1) failed to submit a
11
United States v. Johnson, No. ACM 39676
resignation-in-lieu of court-martial (RILO) request within seven days of refer-
ral of Appellant’s case; (2) engaged in harassing behavior against MP; and (3)
offered a theory of the case that conceded Appellant’s guilt. We examine each
claim in turn.
Pursuant to Appellant’s second assignment of error, on 7 May 2020 this
court ordered Appellant’s four trial defense counsel to provide affidavits or dec-
larations that were responsive to Appellant’s claims that he did not receive
effective assistance of counsel. 5 We have considered whether a post-trial evi-
dentiary hearing is required to resolve any factual disputes. Reviewing trial
defense counsel’s declarations and the record as a whole, we are convinced such
a hearing is unnecessary. See United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F.
1997); United States v. DuBay,
37 C.M.R. 411, 413 (C.M.A. 1967) (per curiam).
Charges were preferred against Appellant on 18 April 2018, the prelimi-
nary hearing occurred on 1 June 2018, the case was referred on 21 June 2018,
and Appellant was served with the referral on 29 June 2018. On 19 October
2018, three days before Appellant’s initial trial date (22 October 2018), Appel-
lant submitted a RILO. At trial, the military judge granted a defense request
for a continuance until 26 November 2018 that was unrelated to the RILO sub-
mission.
The Government sought to proceed to trial while the decision of the Secre-
tary of the Air Force on Appellant’s RILO was pending. On 15 November 2018,
the Chief of the Military Justice Division (JAJM) granted the Government per-
mission to proceed to trial based on “the particular circumstances of [Appel-
lant’s] request to resign, including his failure to submit his request within
seven (7) days of referral.” Appellant’s court-martial concluded on 1 December
2018 with findings of guilty to the Charge and its two specifications. On 4 April
2019, Appellant’s request for a RILO was denied.
As part of his pretrial investigation, Appellant, through counsel, hired a
private investigator to interview the witnesses who were identified as victims
in the case. The investigator attempted to interview MP at her residence and
place of employment. Upon receiving notice from trial counsel that MP re-
quested a Special Victims’ Counsel, the defense team notified the investigator
to cease attempts to contact MP, and the investigator complied. Capt RM also
stated that he talked to Mr. LEC and Mr. JMB and they related there was no
intent to harass the alleged victim, only to investigate the case.
5This court did not receive a declaration from trial defense counsel, Mr. JMB. How-
ever, Mr. JMB did concur with Mr. LEC’s declaration. Mr. LEC is a member of Mr.
JMB’s law firm and one of Appellant’s defense attorneys. Appellant did not raise op-
position to the absence of Mr. JMB’s affidavit or declaration.
12
United States v. Johnson, No. ACM 39676
At trial, it was revealed that one of Appellant’s civilian defense counsel,
Mr. LEC, provided MP’s blood alcohol report from the Georgia Bureau of In-
vestigation and MP’s written statement in Appellant’s case to MP’s husband’s
divorce attorney. In exchange, Mr. LEC received a deposition from the divorce
proceedings.
As lead counsel for the Defense, Mr. JMB gave the closing argument at the
conclusion of findings. According to Capt RM, Mr. JMB’s strategy during clos-
ing argument was to raise reasonable doubt throughout the entirety of his ar-
gument. Mr. JMB talked about a “terrible mistake” by Appellant, stating that:
I think it’s a plausible suggestion that [Appellant] got up, went
to the bathroom just a short distance away, just the end of the
hallway. [Appellant] went in the bathroom, instead of going
straight and coming right back out to [MP], [Appellant] took a
left turn in a house he’d never been in and went into the bedroom
instead. Another girl in there, near darkness. It’s night. The only
light was coming from the hallway. Both [women] were wearing
black rompers. It doesn’t make sense that he would go in there
unless [Appellant] was just making a huge mistake with another
guy laying on the bed.
Capt RM stated in his declaration:
Based on my conversations with Mr. [JMB] about his closing ar-
gument prior to trial, the argument was not intended to be a
misguided presentation of the case nor a concession of guilt, but
a way to raise reasonable doubt as to the prosecution’s presen-
tation of the case.
Mr. LEC declared, “[a]ny defense theory tendered by the defense team dur-
ing trial was a strategic decision made to obtain the best possible outcome for
Appellant based on the facts known at the time.”
2. Law
a. RILO
The Secretary of the Air Force clearly has authority to promulgate an ad-
ministrative regulation providing for the tender of a RILO, if that officer has
committed acts rendering him subject to such trial. United States v. Little, No.
ACM 34726, 2003 CCA LEXIS 224, at *7 (A.F. Ct. Crim. App. 26 Sep. 2003)
(unpub. op.) (citation omitted). When an officer has submitted a RILO, Air
Force Instruction (AFI) 51-201, Administration of Military Justice, ¶ 7.24.7.1
(8 Dec. 2017), dictates the process. Prior permission from the Air Force Legal
Operations Agency, Military Justice Division (AFLOA/JAJM), is required be-
fore a case proceeds to trial if the officer accused has submitted a RILO on
13
United States v. Johnson, No. ACM 39676
which action is pending. Id. at ¶ 7.24.7. JAJM will “normally approve [gov-
ernment] requests for permission to proceed while a [RILO] is pending if the
officer submitted the request more than seven calendar days after service of”
referred charges.
Id. at ¶ 7.24.7.1.
However, when officers submit resignation
requests within seven days of receiving referred charges, JAJM “will normally
disapprove [government] requests for permission to proceed.”
Id. at ¶ 7.24.7.2.
b. Ineffective assistance of counsel
We review allegations of ineffective assistance de novo. United States v.
Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011) (citing United States v. Mazza,
67 M.J.
470, 474 (C.A.A.F. 2009)). In order for Appellant to prevail on a claim of inef-
fective assistance of counsel, he must demonstrate that counsel’s performance
was so deficient that counsel was not functioning as the “counsel” guaranteed
the defendant by the Sixth Amendment, and that the deficiency resulted in
prejudice “as to deprive the defendant of a fair trial, a trial whose result is
reliable.” Strickland v. Washington,
466 U.S. 668, 687 (1984).
We employ a presumption of competence, and apply a three-part test in
assessing whether that presumption has been overcome: (1) “is there a reason-
able explanation for counsel’s actions?;” (2) “did defense counsel’s level of ad-
vocacy ‘fall measurably below the performance . . . [ordinarily expected] of fal-
lible lawyers?;’” and (3) “[i]f defense counsel was ineffective, is there ‘a reason-
able probability that, absent the errors,’ there would have been a different re-
sult?” Gooch, 69 M.J. at 362 (omission and alteration in original) (quoting
United States v. Polk,
32 M.J. 150, 153 (C.M.A. 1991)).
“Defense counsel do not perform deficiently when they make a strategic
decision to accept a risk or forego a potential benefit, where it is objectively
reasonable to do so.” United States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012)
(citing
Gooch, 69 M.J. at 362–63) (additional citation omitted). In reviewing
the decisions and actions of trial defense counsel, this court does not second-
guess strategic or tactical decisions. See United States v. Morgan,
37 M.J. 407,
410 (C.M.A. 1993) (citations omitted). It is only in those limited circumstances
where a purported “strategic” or “deliberate” decision is unreasonable or based
on inadequate investigation that it can provide the foundation for a finding of
ineffective assistance. See United States v. Davis,
60 M.J. 469, 474 (C.A.A.F.
2005).
“[A] lawyer shall abide by a client’s decisions concerning the objectives of
representation, and . . . shall consult with the client as to the means by which
14
United States v. Johnson, No. ACM 39676
they are to be pursued.” AFI 51-110, Professional Responsibility Program, At-
tachment 2, Rule 1.2(a) (5 Aug. 2014)). 6 “A lawyer shall abide by a client’s de-
cision whether to settle a matter. In a criminal case, the lawyer shall abide by
the client’s decision, after consultation with the lawyer, as to a plea to be en-
tered, whether to waive trial by court members, the composition of the court,
and whether the client will testify.” Id.
“Whenever the law, nature, and circumstances of the case permit, trial de-
fense counsel should explore the possibility of an early diversion of the case
from the criminal process.” AFI 51-110, Attachment 7, Standard 4-6.1(a). This
includes requests for administrative discharge in lieu of court-martial.
Id., Dis-
cussion.
3. Analysis
a. Appellant’s RILO case
As stated, Appellant did not submit a RILO until 19 October 2018, nearly
four months after he acknowledged receipt of the referred charges. We under-
stand Appellant’s argument to be that by failing to submit the RILO immedi-
ately or soon after referral, his counsel’s justification that approval of the RILO
would save Government time, expense, and manpower was lost. More im-
portant to Appellant, his counsel also lost the justification of “uncertainty,”
which we understand to mean the uncertainty of whether the Government
would continue to garner the victims’ cooperation and their desire to testify in
the Government’s case at trial. 7 Coupled with a viable mistake of fact defense,
as well as issues regarding MP’s credibility, Appellant believes these factors
support the notion that a timely RILO request would not have been a “[H]ail
[M]ary,” but a “legitimate and reasonable offer that should have garnered se-
rious consideration.”
Trial defense counsel rebutted Appellant’s claims about his desire to sub-
mit a RILO. In his declaration to this court, Mr. LEC explained:
The defense team regularly discussed the process for submitting
a [RILO] request with Appellant, as well as the pros and cons
associated [sic] submitting his request. Appellant was the ulti-
mate decision maker as to whether to submit a request to resign
in lieu of court-martial and as to the timing for its submission.
6 This AFI was updated on 11 Dec. 2018.
7 Appellant’s brief highlights challenges the Government needed to overcome, includ-
ing that AM “considered not going through with this case because [she] just wanted to
put it in the past and get on with [her] life.”
15
United States v. Johnson, No. ACM 39676
In his declaration to this court, Mr. JRH explained that he discussed the
issue of the RILO multiple times with Appellant who was aware of his right to
submit one. Mr. JRH stated, “Initially, [Appellant] stated that he did not want
to submit a RILO, but then in October [Appellant] indicated that he would like
to submit such a request—which was well after the date the charges were re-
ferred in June.” Mr. JRH also stated,
[I]t should be noted that based upon various conversations with
the Chief of Military Justice and other members of the legal of-
fice, it was clear that there would not be any support for a RILO
from the legal office or from the command. In short, the chances
of a RILO being approved for a sexual assault case that had two
victims was virtually nonexistent. . . . it was well after the refer-
ral of charges and there was not any support for such a resolu-
tion.
Appellant did not provide any documentation to rebut these declarations.
“[A] lawyer shall abide by a client’s decisions concerning the objectives of
representation, and . . . shall consult with the client as to the means by which
they are to be pursued. . . . A lawyer shall abide by a client’s decision whether
to settle a matter.” AFI 51-110, Rule 1.2(a) (5 Aug. 2014). In their declarations,
trial defense counsel stated they advised Appellant before referral, yet Appel-
lant chose to not submit a RILO until shortly before trial. Trial defense counsel
abided by Appellant’s decision on the matter, and therefore, we agree with Ap-
pellee that “trial defense counsel cannot be held ineffective for failing to submit
a request to settle Appellant’s case when they lacked the authority to submit
such a request.”
Further, Appellant notes there was no value in failing to request a delay in
the trial pending the Secretary of the Air Force’s decision on this matter. Given
that the Government had a strong case, the lack of support for Appellant’s re-
quest from the Government for the RILO, and timing of Appellant’s RILO sub-
mission, it is unlikely the military judge would have granted a continuance on
this collateral matter pending the Secretary’s decision. We find that Appellant
has failed to show any prejudice in the processing of a RILO, or that his counsel
were ineffective regarding the timing of his RILO request, nor were they inef-
fective in failing to request a continuance of his trial from the court pending
the Secretary’s decision.
b. Trial defense counsel’s investigation of Appellant’s case
We do not believe trial defense counsel engaged in harassing behavior
against MP by hiring an investigator, as it is expected defense counsel would
do their due diligence investigating facts. See AFI 51-110, Attachment 7,
16
United States v. Johnson, No. ACM 39676
Standard 4-1.1. Specifically regarding MP, as soon as trial counsel notified
trial defense counsel that MP requested a SVC, the investigator stood down.
However, we have given great consideration to Appellant’s claim that re-
lease of MP’s records to her estranged husband, by Appellant’s defense attor-
neys, damaged the Defense’s case. Specifically, at the time of her sexual as-
sault, MP was in the process of getting a divorce from her husband and child
custody was a significant issue. Trial defense counsel provided to MP’s hus-
band’s divorce attorney MP’s blood alcohol report from the Georgia Bureau of
Investigation and MP’s written statement to investigators, in exchange for a
deposition from the divorce proceedings. Ultimately, during their cross-exam-
ination of MP, trial defense counsel sought to show MP had a motive to fabri-
cate being a victim; that, by claiming to be a victim and not a voluntary actor,
she would be put in a better light in her ongoing divorce and custody proceed-
ings. Mr. LEC stated in his declaration that this type of exchange of evidence,
“is not prohibited in Georgia” and “at all times [Appellant’s trial defense coun-
sel] acted in conformance with the Georgia Rules of Professional Conduct.”
During cross-examination of MP, assistant trial counsel objected to the rel-
evance of MP’s divorce proceedings. In the following Article 39(a), UCMJ, 10
U.S.C. § 839(a), session, when asked by the military judge about the relevance
of the child custody issue, trial defense counsel stated:
Well, it certainly could have an impact, if someone is living a
certain way and doing certain things that the court does not ap-
prove of. And I can certainly state my place, Judge. We are still
in a very conservative venue here in South Georgia, and they
expect mothers of children are not to go out and do certain
things. And again, it is certainly better in a case arguably to be
a victim, as opposed to being something else.
Ascertaining the situation, the military judge asked Mr. JMB, “why would
you be releasing this discovery for this case to someone else, who had no inter-
est?” Mr. JMB responded, “It was a quid pro quo for—he wanted something
from us, for us, to give us the . . . . The deposition from the divorce.” Mr. JMB
stated this type of “quid pro quo” frequently happened in civilian court. Mr.
JMB denied releasing any medical records. Shortly thereafter, trial defense
counsel clarified the relevance of the information, stating that MP’s level of
intoxication that night “goes toward whether [MP] was out being promiscuous,
or whether she was forcibly assaulted.”
After some debate on the relevance of the documents, MP’s possible motive,
and the prejudice to the Defense regarding the release of the records, the mil-
itary judge stated:
17
United States v. Johnson, No. ACM 39676
[T]he real prejudice is not to you guys, because you are the ones,
who released it. The real question is whether it is prejudicial to
your client, and that’s really my only concern here. Whether or
not you guys did the right thing, that is something we are going
to take up later, whether you released official government, you
know, government documents that were part of a trial, and you
released them as part of a quid pro quo agreement with another
attorney, knowing that it would have a beneficial impact also to
your particular case here, when those government documents
were released under Rules for Courts-Martial, and under our
guidelines, and under our ethical rules and those kinds of things,
that is a separate issue, which we may take up after this trial is
over. The real question is, why let your actions prejudice your
client? That is my only concern right here.
...
I do have an issue with what you did. I don’t care whether if it is
the good old boys and girls network and that’s how you work
things. That is not the way it works in a court-martial. That is
for official use only. That is how those documents are released.
Finding that there was grounds under Mil. R. Evid. 608(c), the military
judge allowed minimal questioning of MP on the issue of her divorce and cus-
tody, as well as that SrA DS knew her husband, as proper bias, motive to mis-
represent, and impeachment evidence of MP.
Yet, in her testimony at sentencing, MP noted that the documents trial de-
fense counsel turned over to her husband’s attorney resulted in the family-
court judge’s “concerns about [her] character and alcohol. And so at that point,
he did not decide it was okay to give custody to us. So he, in turn gave custody
to our grandmothers. And, I attended alcohol counseling and counseling for
that.” Trial counsel then asked MP if it was her understanding that the family-
court judge’s decision was a direct result of the documents turned over. MP
responded, “That’s my understanding; yes, sir.” The military judge also allowed
MP to provide information related to her divorce to be presented in an unsworn
statement to the members.
After announcement of sentence, trial counsel reminded the military judge
about the release of the documents. The military judge concluded that under
Article 48, UCMJ, 10 U.S.C. § 848, his authority to punish for contempt was
limited, and that Article 6(b), UCMJ, 10 U.S.C. § 806b, did not specifically in-
dicate Article 48 was a remedy for an Article 6(b) violation. However, he left
the door open in the event trial counsel chose to pursue contempt proceedings.
They did not.
18
United States v. Johnson, No. ACM 39676
The Defense had no evidence that MP fabricated being a victim; it was a
mere theory. The disclosure of documents in a “quid pro quo” transaction re-
lated to Appellant’s case to MP’s estranged husband’s attorney was done to
gain an advantage in an attempt to attack MP’s credibility. Standard 4-4.3(a)
of Attachment 7, AFI 51-110, states that defense counsel “should not use
means that have no substantial purpose other to embarrass, delay, or burden
a third person . . . .” While the disclosure of this evidence did burden and affect
MP’s civil case with her husband, we do not believe trial defense counsel’s sub-
stantial purpose in the “quid pro quo” was to embarrass or burden MP. Addi-
tionally, revisiting Appellant’s assignment of error on factual sufficiency, trial
defense counsel had little evidence to attack MP’s credibility. As Appellee ar-
gued, the Government’s case was strong, and because Appellant did not have
a credible defense to counter the evidence, there was no reasonable probability
“absent trial defense counsel’s investigation there would have been a different
result at trial.” Appellee also notes that the members were never informed how
MP’s husband gained the knowledge of Appellant’s case. From our view, while
we do not subscribe with, or condone, trial defense counsel’s interactions with
MP’s husband’s attorneys, we do recognize that trial defense counsel had an
obligation to conduct a prompt investigation of this case and explore all ave-
nues leading to facts relevant to the merits of the case. See AFI 51-110, Attach-
ment 7, Standard 4-1.1.
With this said, evaluating whether trial defense counsel was ineffective on
this issue, we look at the three-part test in in Gooch. First, was there a reason-
able explanation for trial defense counsel’s actions? See Gooch, 69 M.J. at 362.
In this case, the Defense was trying to develop a theory that would attack MP’s
credibility. Second, did trial defense counsel’s level of advocacy “fall measura-
bly below the performance . . . [ordinarily expected] of fallible lawyers?”
Id.
Pursuant to their obligations as Appellant’s counsel, we would expect trial de-
fense counsel to do their due diligence in conducting an investigation to dis-
cover all facts relevant to the case. Trial defense counsel took a risk in this
case, in that, had they been able to attack MP’s credibility with this infor-
mation, Appellant could have been acquitted of the specification related to MP;
conversely, if this information backfired, it could impact Appellant in sentenc-
ing. We find that there was no prejudice to Appellant, and that the level of
advocacy provided by trial defense counsel did not fall below the performance
expected of attorneys practicing in the military justice arena. Finding that trial
defense counsel were not ineffective, we need not address the third prong of
Gooch —‘“a reasonable probability that, absent the errors,’ there would have
been a different result.”
Id.
19
United States v. Johnson, No. ACM 39676
c. Trial defense counsel’s theory of the case
The facts of this case strongly favored the Government’s charging, particu-
larly regarding AM. Trial defense counsel noted their strategy was to try to
create as much reasonable doubt as possible. As Mr. JRH declared, the possible
defenses were limited, given the eyewitness and scientific evidence against Ap-
pellant. Trial defense counsel did their best to attack the credibility and biases
of witnesses, to provide explanations for Appellant’s behavior, and ultimately
in our view, they did not concede guilt. One of those explanations was the “ter-
rible mistake” Appellant made when he thought AM was MP.
We do not agree with Appellant that “but for counsel’s errors,” the result of
the proceedings would have been different. As Appellant stated, trial defense
counsel could have offered a strategy of no defense or a limited defense; how-
ever, it is speculative how that might have helped Appellant in this case. Trial
defense counsel could have chosen a different closing argument strategy. How-
ever, the record shows their trial strategy in this case was not unreasonable.
That strategy brought relevant information to the attention of the members.
We evaluate trial defense counsel’s performance not by the success of their
strategy, but whether counsel made reasonable choices from the alternatives
available at trial. See United States v. Dewrell, 55 M.J. 131, 136 (C.A.A.F.
2001) (quoting United States v. Hughes,
48 M.J. 700, 718 (A.F. Ct. Crim. App.
1998)). Under these circumstances, Appellant fails to overcome the strong pre-
sumption that counsel’s performance was within the wide range of reasonable
professional assistance.
C. Portions of MP’s Unsworn Victim Impact Statement
1. Law
Although not raised by Appellant in his brief, in light of the information
provided by MP in her unsworn victim impact statement, we address whether
the military judge abused his discretion in allowing portions of that statement
to be presented to the members at the sentencing hearing. In United States v.
Hamilton, this court stated that “Article 6b, UCMJ, gives victims the right to
be reasonably heard through an unsworn statement, which is tantamount to
victim allocution at sentencing.” 77 M.J. 579, 584 (A.F. Ct. Crim. App. 2017)
(citing Kenna v. United States Dist. Court,
435 F.3d 1011, 1014–16 (9th Cir.
2006); United States v. Degenhardt,
405 F. Supp. 2d 1341, 1351 (D. Utah
2005)). “R.C.M. 1001A broadly defines the scope of victim impact.”
Id. The
court went further in Hamilton, stating:
[U]nsworn victim impact statements offered pursuant to R.C.M.
1001A are not evidence, and therefore not aggravation evidence
offered by the Prosecution.
20
United States v. Johnson, No. ACM 39676
....
. . . The military judge has the obligation to ensure the content
of a victim’s unsworn statement comports with the defined pa-
rameters of victim impact or mitigation as defined by the statute
and R.C.M. 1001A. See [MCM], pt. II, Discussion (“A victim's
unsworn statement should not exceed what is permitted under
R.C.M. 1001A(c) . . . . Upon objection or sua sponte, a military
judge may stop or interrupt a victim’s unsworn statement that
includes matters outside the scope of R.C.M. 1001A”). A victim’s
right to be heard at sentencing is the right to be “reasonably”
heard. 10 U.S.C. § 806b(a)(4). What a military judge may find to
be “reasonable” in a particular context may be informed to some
extent by legal principles embodied in the Military Rules of Ev-
idence. However, those rules do not apply to victim unsworn
statements, which are not evidence.
Mil. R. Evid. 403 addresses “legal relevance” and provides that
“evidence” may be excluded notwithstanding its logical rele-
vance. In the decision to allow a victim to exercise their right to
be heard on sentencing, a military judge is neither making a rel-
evance determination nor ruling on the admissibility of other-
wise relevant evidence. Instead, the military judge assesses the
content of a victim’s unsworn statement not for relevance, but
for scope as defined by R.C.M. 1001A.
Id. at 585–86 (Third omission in original).
Under R.C.M. 1001A(b)(2), ‘“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.”
When there is error regarding the presentation of victim statements under
R.C.M. 1001A, the test for prejudice “is whether the error substantially influ-
enced the adjudged sentence.” United States v. Barker, 77 M.J. 377, 384 (A.F.
Ct. Crim. App. 2018) (citation omitted). When determining whether an error
had a substantial influence on a sentence, this court considers the following
four factors: “(1) the strength of the [g]overnment’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.”
Id. (citations omitted); see also United States v.
Machen, No. ACM 39295, 2018 CCA LEXIS 419, at *12 (A.F. Ct. Crim. App. 29
Aug. 2018) (unpub. op.) (citing United States v. Bowen,
76 M.J. 83, 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 presented at trial and would have provided
21
United States v. Johnson, No. ACM 39676
new ammunition against an appellant.” Barker, 77 M.J. at 384 (citing United
States v. Harrow,
65 M.J. 190, 200 (C.A.A.F. 2007)).
2. Analysis
Trial defense counsel objected to portions of MP’s statement, specifically
that MP “lost [her] employment in Valdosta because [she] had to move to Mis-
sissippi to be near [her] daughter,” that MP had been followed by investigators,
and that MP felt Appellant “ha[d] [no] remorse for what he had done. He’s just
upset he got caught.”
In an Article 39(a), UCMJ session, before she presented her statement to
the members, MP provided clarification to the military judge about her victim
impact. At the session and outside the presence of the members, MP described
in greater detail the impact the case had on her, and her divorce and custody
trial, testifying that the documents trial defense counsel turned over to her
estranged husband resulted in her losing custody of her daughter to her own
mother, and that MP had to attend alcohol counseling ordered by the court.
Initially, and although in error, the military judge did a Mil. R. Evid. 403
balancing test. In finding MP’s statement relevant under R.C.M. 1001A, the
military judge found evidence of a social and psychological impact on MP, and
found the probative value of this evidence was not substantially outweighed by
the danger of unfair prejudice to Appellant. The military judge later addressed
that he was in error in doing a balancing test, and simply looked at the confines
of R.C.M. 1001A to determine if the contents of MP’s statement would be al-
lowed. In doing so, he allowed MP’s statement to go forward as drafted.
The question for this court is whether the military judge abused his discre-
tion in allowing the court exhibit and MP’s presentation. We find that he did.
The military judge stated he had “no doubt that [trial defense] counsel’s actions
. . . have caused [MP] additional psychological impact,” and we agree with this
statement. However, allowing that information potentially resulted in Appel-
lant being held accountable for the actions of his attorneys, who exacerbated
MP’s status as a victim, and made MP’s situation worse by the disclosure of
evidence to her soon-to-be ex-husband, who may have used her situation to his
advantage in their divorce and custody proceedings. While MP suffered per-
sonal consequences that arose as part of Appellant’s actions and his counsel’s
litigation strategy, the statements admitted as written allowed MP to pin the
blame of her personal situation onto Appellant. We find these statements went
outside the scope of victim impact allowed, as her divorce and custody issues
did not directly arise from Appellant’s offenses.
With that said, we apply the test from Bowen to determine whether the
error regarding MP’s statement had a substantial influence on the sentence.
22
United States v. Johnson, No. ACM 39676
The Government had a very strong case against Appellant involving two vic-
tims. The facts surrounding the sexual assault committed against AM were
extremely egregious and disturbing, and then just minutes after penetrating
AM’s vagina with his penis, Appellant sexually assaulted MP. Conversely, Ap-
pellant had few facts in his favor. Regarding the materiality and quality of
MP’s statement, we assess how much the erroneously admitted evidence may
have affected the court-martial. See United States v. Washington, 80 M.J. 106,
111 (C.A.A.F. 2020). Here, trial defense counsel cross-examined MP on her di-
vorce in findings, so this information was not a surprise to the panel at the
sentencing hearing. Also, the information provided by MP was given through
an unsworn statement, and the military judge appropriately provided guidance
through an instruction to the panel on how to consider the information and
that the weight and significance of that unsworn statement rests “within the
sound discretion of each court member.” Applying the Bowen test, we find the
admission of MP’s victim unsworn statement did not substantially influence
Appellant’s sentence, nor affect the court-martial, and we are confident the
panel gave MP’s statement the proper weight it deserved.
D. Conditions of Appellant’s Post-Trial Confinement
1. Additional Background
Appellant spent 33 days in pretrial confinement at the Lowndes County,
Georgia, Jail, before his release and restriction to base. 8 After his conviction,
Appellant was again confined in the Lowndes County Jail, where he remained
for approximately two months before his transfer to a military confinement
facility. On 29 March 2019, Appellant submitted a clemency letter to the con-
vening authority, alleging that while confined in the civilian confinement fa-
cility, he was subjected to the following post-trial living conditions: (1) he had
to share a single cell and toilet with 16 other prisoners, some of whom were
gang members and suffering drug-withdrawal symptoms; (2) he suffered phys-
ical attacks and injuries from other prisoners; (3) the guards were not located
close to his cell and neglected calls for help; (4) cleaning supplies were never
made available to clean the toilet; (5) confinement officials withheld his mail;
(6) he was not allowed any visitors until his transfer to military confinement;
(7) confinement officials withheld food from him; (8) he was not permitted to
go outside for the entirety of his two-month confinement; (9) he was not pro-
vided clean clothes; and (10) he had limited opportunities to bathe.
Appellant argues these post-trial conditions adversely affected him both
physically and mentally. On 31 March 2019, the staff judge advocate wrote an
8Appellant was released by civilian authorities conditioned upon being restricted to
base.
23
United States v. Johnson, No. ACM 39676
addendum to her 18 March 2019 staff judge advocate recommendation (SJAR).
In the SJAR Addendum, she stated she received Appellant’s clemency matters.
Her recommendation to the convening authority, which was to approve the
sentence as adjudged, remained unchanged. Action was taken on 5 April 2019.
On 10 April 2020, as part of his appeal, Appellant and his mother provided
affidavits attesting to his conditions while in the civilian confinement facility.
Appellant stated he did not file a complaint under Article 138, UCMJ, 10
U.S.C. § 938, because he was afraid of being labeled a “snitch,” he knew his
complaint would fall on deaf ears with the facility, and because of lack of access
to his unit. In her affidavit, Appellant’s mother, Ms. VR, noted that her son
was not allowed visits during his time in civilian confinement and he did not
have access to his mail. Ms. VR also declared that she noticed a decline in Ap-
pellant’s mental state and that her son was refused medical care. Finally, she
noticed a decline in Appellant’s overall demeanor and appearance.
In response to Appellant’s assignment of error regarding his post-trial con-
finement conditions, Appellee moved to attach two declarations: a declaration
from Captain JC, the jail administrator at the Lowndes County Jail, and a
declaration from MSgt GB, Appellant’s first sergeant. That motion was
granted by this court. The declarations were deemed relevant to rebut Appel-
lant’s allegation of his post-trial conditions.
In his declaration, Captain JC outlined basic rules, standards, and condi-
tions for inmates. Captain JC noted Appellant did file six grievances with the
facility; however, Appellant never submitted any complaints about the condi-
tions of his cell, concerns about his safety, not receiving mail, or being denied
visitors. Captain JC also stated there were no records indicating Appellant was
ever assaulted while confined at the jail.
MSgt GB declared that Appellant did complain he did not receive mail, but
that Appellant did not show up at the designated location to pick up mail. MSgt
GB also refuted Appellant’s claims that his unit did not visit him. MSgt GB
stated he attempted to resolve any complaints Appellant raised to him about
the conditions of his post-trial confinement.
Finally, on 7 July 2020, this court granted a request from Appellant to at-
tach an affidavit from Appellant’s wife regarding his post-trial confinement
conditions. In this affidavit, Ms. VJ stated she saw injuries to her husband
(through video chat), including a black eye and swelling around his lip. Ms. VJ
stated Appellant did not tell her what happened to him until he was trans-
ferred to the Naval Consolidated Brig in Miramar, California; the true nature
of what happened to Appellant is unknown, but according to Ms. VJ, it appears
to have been a violation of the “snitch code.”
24
United States v. Johnson, No. ACM 39676
2. Law
We review de novo whether an appellant has been subjected to impermis-
sible post-trial confinement conditions in violation of the Eighth Amendment
or Article 55, UCMJ, 10 U.S.C. § 855. United States v. Wise, 64 M.J. 468, 473
(C.A.A.F. 2007) (citing United States v. White,
54 M.J. 469, 471 (C.A.A.F.
2001)).
“[T]he Eighth Amendment prohibits two types of punishments: (1) those
‘incompatible with the evolving standards of decency that mark the progress
of a maturing society’ or (2) those ‘which involve the unnecessary and wanton
infliction of pain.’” United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F.
2006) (quoting Estelle v. Gamble,
429 U.S. 97, 102–03 (1976)). As the United
States Supreme Court has explained, “[t]he Constitution ‘does not mandate
comfortable prisons,’ but neither does it permit inhumane ones.” Farmer v.
Brennan,
511 U.S. 825, 832 (1994) (quoting Rhodes v. Chapman,
452 U.S. 337,
349 (1981)). “[P]rison officials must ensure that inmates receive adequate food,
clothing, shelter and medical care, and must ‘take reasonable measures to
guarantee the safety of the inmates.’”
Id. at 832 (quoting Hudson v. Palmer,
468 U.S. 517, 526–27 (1984)). This includes protecting prisoners from violence
committed by other prisoners.
Id. at 833.
A violation of the Eighth Amendment is shown by demonstrating:
(1) an objectively, sufficiently serious act or omission resulting
in the denial of necessities; (2) a culpable state of mind on the
part of prison officials amounting to deliberate indifference to
[an appellant]’s health and safety; and (3) that [an appellant]
“has exhausted the prisoner-grievance system . . . and that he
has petitioned for relief under Article 138, UCMJ . . . .”
Lovett, 63 M.J. at 215 (first omission in original) (footnotes omitted) (quot-
ing United States v. Miller,
46 M.J. 248, 250 (C.A.A.F. 1997)).
Our superior court has emphasized that “[a] prisoner must seek adminis-
trative relief prior to invoking judicial intervention to redress concerns regard-
ing post-trial confinement conditions.” Wise, 64 M.J. at 469 (citing
White, 54
M.J. at 472). “This requirement ‘promot[es] resolution of grievances at the low-
est possible level [and ensures] that an adequate record has been developed [to
aid appellate review].’”
Id. at 471 (alterations in original) (quoting
Miller, 46
M.J. at 250). Appellant must show that “absent some unusual or egregious cir-
cumstance . . . he has exhausted the prisoner-grievance system [in his deten-
tion facility] and that he has petitioned for relief under Article 138, UCMJ.”
White, 54 M.J. at 472 (citation omitted).
25
United States v. Johnson, No. ACM 39676
Under Article 66(c), UCMJ, we have broad authority and the mandate to
approve only so much of the sentence as we find “correct in law and fact and
determine, on the basis of the entire record, should be approved.” The scope of
our Article 66(c), UCMJ, authority to consider claims of post-trial confinement
conditions “is limited to consideration of these claims as part of our determi-
nation of sentence appropriateness.” United States v. Willman, No. ACM
39642, 2020 CCA LEXIS 300, at *17 (A.F. Ct. Crim App. 2 Sep. 2020) (unpub.
op.) (quoting United States v. Towns, 52 M.J. 830, 833 (A.F. Ct. Crim. App.
2000), aff’d,
55 M.J. 361 (C.A.A.F. 2001)). “It is also limited to claims based on
post-trial treatment that occurs prior to the action of the convening authority
and which is documented in the record of trial.”
Id. (quoting Towns, 52 M.J. at
833).
3. Analysis
This is not the first time this court has seen an appellant bring forth a post-
trial confinement claim from Lowndes County Jail. Earlier this year, we con-
sidered in United States v. O’Bryan, No. ACM 39602, 2020 CCA LEXIS 211
(A.F. Ct. Crim. App. 24 Jun. 2020) (unpub. op.), a case where the appellant
made similar claims against the facility. Interestingly, the appellant in
O’Bryan was incarcerated at the Lowndes County Jail just months before Ap-
pellant in the present case was transferred there. See id. Our court also re-
viewed an affidavit from Captain JC in O’Bryan. See
id. at *8. Ultimately, no
relief was granted in that case. 9,10
In this case, by the time Appellant submitted his clemency response to the
convening authority, Appellant had been moved to a military confinement fa-
cility. Although Appellant made reference to his confinement conditions in his
clemency submission to the convening authority, Appellant acknowledged that
he did not file a complaint under Article 138, UCMJ, because he was afraid of
being labeled a “snitch,” he knew his complaint would fall on “deaf ears” with
the facility, and because of lack of access to his unit. Appellant relies on the
“snitch code” for his justification for not addressing his issues with command.
9As in O’Bryan, Appellant’s claims of maltreatment at Lowndes County Jail were doc-
umented in the record in his clemency response. In O’Bryan, the appellant’s defense
counsel submitted a statement outlining the conditions; in the present case, Appellant
did not. See O’Bryan, unpub. op. at *5.
10We also note United States v. Melson, No. ACM 36523, 2007 CCA LEXIS 372 (A.F.
Ct. Crim. App. 14 Sep. 2007) (unpub. op.), where the appellant in that case alleged
pretrial confinement conditions at Lowndes County Jail. In Melson, trial defense coun-
sel failed to raise illegal pretrial punishment at trial. Id. at *2. This court granted the
appellant relief pursuant to United States v. Suzuki,
20 M.J. 248 (C.M.A. 1985). Mel-
son, unpub. op. at *19.
26
United States v. Johnson, No. ACM 39676
Captain JC acknowledged in his affidavit a “snitch code,” where inmates give
information to officers, but stated the jail “protect[s] the information and iden-
tity of inmates that give us information.” Captain JC’s affidavit also noted Ap-
pellant filed six grievances with the facility; however, five of those grievances
were filed when Appellant was in pretrial confinement.
Despite having command visits while at the civilian confinement facility,
the first time Appellant complained to his command about his post-trial con-
finement conditions was in his clemency submission after he had already been
transferred to a military confinement facility. The requirement that a confinee
must seek administrative relief, including under Article 138, UCMJ, “‘pro-
mot[es] resolution of grievances at the lowest possible level [and ensures] that
an adequate record has been developed [to aid appellate review].’” Wise, 64
M.J. at 471 (alterations in original) (quoting
Miller, 46 M.J. at 250). As in
O’Bryan, had Appellant filed an Article 138, UCMJ, complaint and a prisoner
grievance while in the civilian confinement facility, the record would reflect
what action, if any, his command and prison officials took in response. Also,
Appellant does not convincingly explain how raising issues of hygiene, visita-
tion rights, and the receipt of mail would result in adverse consequences to him
from confinement officials or inmates. Yet, although he was aware of the griev-
ance procedures, as attested to by Captain JC, Appellant failed to make his
grievances known to his command and prison officials and thus made it impos-
sible for them to ameliorate, let alone record, all of his grievances. 11
By failing to raise his issues to prison officials or his command, Appellant
has not shown deliberate indifference by the Lowndes County Jail. “[A] mili-
tary prisoner’s burden to show deliberate indifference [by prison officials with
respect to his health or safety] requires him to show that ‘official[s] [knew] of
and disregard[ed] an excessive risk to inmate health or safety; the official[s]
must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and [they] must also draw the infer-
ence.’” Lovett, 63 M.J. at 216 (alterations in original) (quoting
Farmer, 511 U.S.
at 837). The record shows Appellant has failed to meet his burden that he was
subjected to any forms of cruel or unusual punishment. As a result, Appellant
is not entitled to any relief for his alleged Eighth Amendment or Article 55,
UCMJ, violations. Further, for the reasons already articulated, we also do not
11 We note the affidavits from Captain JC and MSgt GB were written over a year after
clemency was submitted. MSgt GB’s affidavit would have been much more powerful
had he been given an opportunity to rebut Appellant’s claims in March 2019, instead
of April 2020; yet, there is no evidence the convening authority or the staff judge advo-
cate addressed Appellant’s allegations with Lowndes County Jail.
27
United States v. Johnson, No. ACM 39676
grant relief under Article 66, UCMJ, for his alleged post-trial confinement con-
ditions.
We have also considered whether Appellant’s assertions warrant sentence
relief under our Article 66(c), UCMJ, authority. We review issues of sentence
appropriateness de novo. United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006)
(footnote omitted). 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 entire
record. Article 66(c), UCMJ. In determining whether a sentence should be ap-
proved, our authority is “not legality alone, but legality limited by appropriate-
ness.” United States v. Nerad,
69 M.J. 138, 141 (C.A.A.F. 2010) (citing United
States v. Atkins,
23 C.M.R. 301, 303 (C.M.A. 1957)). This authority is “a sweep-
ing congressional mandate to the Courts of Criminal Appeal to ensure a fair
and just punishment for every accused.” United States v. Baier,
60 M.J. 382,
384 (C.A.A.F. 2005) (internal quotation marks and footnote omitted). This task
requires “individualized consideration of the particular accused on the basis of
the nature and seriousness of the offense and the character of the offender.”
United States v. Snelling,
14 M.J. 267, 268 (C.M.A. 1982) (internal quotation
marks and citation omitted). In conducting this review, we must also be sensi-
tive to considerations of uniformity and even-handedness. United States v. So-
then,
54 M.J. 294, 296 (C.A.A.F. 2001) (citing United States v. Lacy,
50 M.J.
286, 287–88 (C.A.A.F. 1999)). Although we have great discretion to determine
whether a sentence is appropriate, we have no authority to grant mercy. Ne-
rad, 69 M.J. at 146. 12
There is no question Appellant’s crimes are serious. Appellant sexually as-
saulted two women—one victim who was incapable of consenting, the other a
victim of bodily harm—both in a matter of mere minutes. Based on our review
of the entire record, we find that Appellant’s sentence is appropriate for the
offenses he committed.
12 Although we exercise our authority to consider outside-the-record matters to deter-
mine if Appellant’s sentence is correct in law under Article 55, UCMJ, and the Eighth
Amendment, see United States v. Erby, 54 M.J. 476, 478 (C.A.A.F. 2001), we are pre-
cluded from considering additional information about those conditions that Appellant
presents in his post-trial statement of facts to determine if his sentence is appropriate
and “should be approved” as part of our Article 66(c), UCMJ, review. See United States
v. Jessie, 79 M.J 437, 441 (C.A.A.F. 2020).
28
United States v. Johnson, No. ACM 39676
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 sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
29
