UNITED STATES NAVY-MARINE CORPS
               COURT OF CRIMINAL APPEALS
                    WASHINGTON, D.C.

                              Before
           K.J. BRUBAKER, M.C. HOLIFIELD, A.Y. MARKS
                     Appellate Military Judges

                   UNITED STATES OF AMERICA

                                v.

                     ALONZO BASS III
   AVIATION BOATSWAIN'S MATE SECOND CLASS (E-5), U.S. NAVY

                       NMCCA 201400229
                   GENERAL COURT-MARTIAL

Sentence Adjudged: 28 February 2014.
Military Judge: CAPT Robert B. Blazewick, JAGC, USN.
Convening Authority: Commander, Navy Region Southeast,
Naval Air Station, Jacksonville, FL.
Staff Judge Advocate's Recommendation: CDR N.O. Evans,
JAGC, USN.
For Appellant: LT Carrie E. Theis, JAGC, USN; LT Ryan
Aikin, JAGC, USN.
For Appellee: Maj Suzanne Dempsey, USMC; LT Ann E. Dingle,
JAGC, USN.

                          18 August 2015

    ---------------------------------------------------
               PUBLISHED OPINION OF THE COURT
    ---------------------------------------------------

BRUBAKER, Senior Judge:

     A panel of members with enlisted representation sitting as
a general court-martial convicted the appellant, contrary to his
pleas, of one specification of violating a lawful general
regulation (sexual harassment), two specifications of wrongful
sexual contact, and two specifications of sodomy, in violation
of Articles 92, 120, and 125, Uniform Code of Military Justice,
10 U.S.C. §§ 892, 920, and 925. The members sentenced him to
seven years’ confinement, total forfeiture of pay and
allowances, reduction to pay grade E-1, and a dishonorable
discharge. The convening authority (CA) approved the sentence
as adjudged.

        The appellant raises 11 assignments of error (AOEs):

        (1) the military judge erred in instructing the members
        that consensual sodomy is a lesser included offense (LIO)
        of forcible sodomy;
        (2) the appellant was not on notice of the alternative
        crime of consensual sodomy;
        (3) the appellant’s conviction for consensual sodomy is
        fatally ambiguous;
        (4) the members created a prejudicial, fatal variance when
        they convicted the appellant of consensual sodomy;
        (5) the military judge abused his discretion by permitting
        the Government to argue that the appellant had a general
        propensity to commit sexual crimes based only on the
        charges before the court-martial;
        (6) trial counsel committed prosecutorial misconduct by
        referencing the victim advocate, misstating evidence,
        giving his personal opinion, and “accusing the members of
        victim-blaming if they believed the defense’s case”; 1
        (7) the military judge erred when he foreclosed the defense
        from undermining the complaining witness’s credibility;
        (8) the appellant’s sentence is inappropriately severe;
        (9) the military judge’s presentation of the Secretary of
        Defense’s memorandum on sexual assault to the members
        created the appearance of unlawful command influence;
        (10) the appellant was improperly denied access to the
        victim’s medical records; and
        (11) the trial counsel committed prosecutorial misconduct
        by cross-examining the appellant about the fact that he was
        facing life in prison. 2
     In a previous decision issued in this case, United States
v. Bass, 2015 CCA LEXIS 221 (N.M.Ct.Crim.App. 27 May 2015), we
1
    Appellant’s Brief of 16 Sep 2014 at 32.
2
    Raised pursuant to United States v. Grostefon, 

(C.M.A. 1982).
                                        2
set aside the findings of guilty as to both specifications under
Charge III and Charge III, dismissed Charge III and its
specifications, set aside the sentence, and authorized a
rehearing on the sentence. On 26 June 2015, the Government
moved for en banc reconsideration. The court denied en banc
reconsideration, but we granted panel reconsideration. After
reconsideration, we withdraw our opinion dated 27 May 2015 and
substitute this opinion. We reach the same result, but take the
opportunity to clarify the prejudice requirement for error
related to LIOs.
     After carefully considering the record of trial and the
submissions and oral arguments of the parties, we find merit in
the appellant’s first AOE and grant relief in our decretal
paragraph. AOEs (2) through (4) and (8) are therefore mooted.
Furthermore, AOE (10) implicates only the sentencing phase of
the trial and our decretal paragraph sets aside the sentence;
thus, even assuming without deciding that the military judge
erred by denying the appellant access to the victim’s medical
records, whether such error was prejudicial is also mooted.
Finally, having considered AOEs (7), (9), and (11), we find them
without merit. United States v. Clifton, 

, 81-82
(C.M.A. 1992). We address the remaining AOEs below, but find no
prejudicial error regarding them. Arts. 59(a) and 66(c), UCMJ.
                       Factual Background

     All the specifications in this case allege offenses against
two Sailors who served with the appellant aboard USS JOHN C.
STENNIS (CVN 74): Machinist’s Mate Third Class (MM3) TM and
Aviation Boatswain’s Mate Second Class (ABE2) MH. We will
consider each in turn.
MM3 TM

     After reporting to the STENNIS in April 2011, MM3 TM and
the appellant developed a close friendship that evolved into a
consensual sexual relationship. While deployed aboard the ship
in the fall of 2011, MM3 TM stated that she ended her sexual
relationship with the appellant after she realized their
relationship was not exclusive. MM3 TM, however, wished to
remain in contact with the appellant and continue their
friendship.

     MM3 TM alleged that after their consensual sexual
relationship ended, the appellant sexually assaulted her on
three separate occasions between about November 2011 and
February 2012——all while deployed aboard the STENNIS. MM3 TM

                                3
alleged that during one of the incidents, the appellant both
orally and anally sodomized her.

     The appellant ultimately admitted to sexual activity with
MM3 TM aboard the ship, including oral and anal sodomy, but
claimed it was consensual.

     The members acquitted the appellant of all offenses against
MM3 TM alleging the use of force, but convicted him of two
specifications of non-forcible sodomy with her.

ABE2 MH

     ABE2 MH reported to the STENNIS in July 2011. Shortly
thereafter, she transferred to the appellant’s division where
the two began to work closely. The appellant made unwanted,
inappropriate comments to ABE2 MH such as “you have a nice ass
for a white girl.” ABE2 MH also alleged that between the months
of August 2011 and January of 2012 the appellant did the
following: reached into the back pocket of her uniform without
permission to retrieve chewing tobacco, touching her buttocks
over her clothing in the process; pushed her against the wall
and kissed her against her will; approached from behind her and
grabbed her by the crotch, lifting her from the ground and
making contact with her genitalia over her clothes as a result;
and in one instance, grabbed her, pushed her against the wall,
kissed her, and without consent forced his hands down her pants
and touched her genitalia over her underwear.

     The appellant admitted to much of the physical contact, but
asserted it was consensual. The members found the appellant not
guilty to four specifications of sexual assault against ABE2 MH,
including two related to placing his hand into her back pocket,
but convicted him of sexually harassing her and two
specifications of wrongful sexual contact against her.

                                 Analysis

I.   Non-Forcible Sodomy as an LIO

     The appellant’s first four AOEs relate to his convictions
for non-forcible sodomy as an LIO of forcible sodomy. 3

3
  This opinion interprets and pertains only to the former version of Article
125. On 26 December 2013, the President signed into law the National Defense
Authorization Act for Fiscal Year 2014, amending Article 125 to cover only
forcible sodomy and bestiality. In this case, however, the former version of
Article 125 applies as the acts alleged occurred when it was in effect.
                                     4
Specifications 1 and 2 of Charge III stated that the appellant
“did, on board USS JOHN C STENNIS (CVN-74) . . . commit [oral
and anal] sodomy with [MM3 TM] by force and without the consent
of the said [MM3 TM].” 4 Without objection from the appellant,
the military judge instructed the members that non-forcible
sodomy is an LIO of the offense of sodomy by force and without
consent. He advised as follows:

        The lesser included offense of non-forcible sodomy
        differs from the charged offense of forcible sodomy,
        in that non-forcible sodomy does not require you to be
        convinced beyond a reasonable doubt that the sodomy
        was committed by force and without the consent of the
        other person. However, in order to find the accused
        guilty of this lesser included offense, you must find
        beyond a reasonable doubt both that the physical act
        of sodomy occurred and that it involved public
        behavior; an act of prostitution; persons who might be
        injured, coerced or who were situated in relationships
        where consent might not easily be refused; or of a
        unique military interest. 5

     For each of the two specifications, the members acquitted
the appellant of forcible sodomy, but convicted him of non-
forcible sodomy. While the first four AOEs allege various
infirmities of these convictions, they turn on one question: was
it proper for the members to be instructed on and convict the
appellant of non-forcible sodomy when such a conviction required
proof beyond a reasonable doubt of facts not necessary for a
forcible sodomy conviction and not pleaded in the
specifications? We answer this in the negative.

     Whether an offense is an LIO is a question of law that we
review de novo. United States v. Tunstall, 

, 193
(C.A.A.F. 2013) (citing United States v. Girouard, 

, 9
(C.A.A.F. 2011)). Absent objection at trial, we review for
plain error, only granting relief if the appellant demonstrates:
(1) there was error; (2) the error was plain or obvious; and (3)
the error materially prejudiced a substantial right of the
accused. 

.
     To determine whether one offense is an LIO of another, we
apply the elements test. 

(citing
United States v. Jones, 

, 468 (C.A.A.F. 2010)).

4
    Charge Sheet.
5
    Record at 1189-90 (emphasis added).
                                          5
     Under the elements test, one compares the elements of
     each offense. If all of the elements of offense X are
     also elements of offense Y, then X is an LIO of Y.
     Offense Y is called the greater offense because it
     contains all of the elements of offense X along with
     one or more additional elements.

.
      The elements of forcible sodomy, as charged in this
case, are: (1) that the appellant engaged in unnatural
carnal copulation with MM3 TM; and (2) that the act was
done by force and without the consent of MM3 TM. MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2012 ed.), Part IV, ¶ 51b; Charge
Sheet.
     Non-forcible sodomy under the former version of
Article 125, on the other hand, has one element: that the
appellant engaged in unnatural carnal copulation with MM3
TM. 

to end our analysis here, we would readily
conclude——as indeed we did in United States v. Useche, 

, 661 (N.M.Ct.Crim.App. 2012)——that these two
offenses meet the elements test and that non-forcible
sodomy is an LIO of forcible sodomy. The problem with this
analysis is that since our decision in Useche, the United
States Court of Appeals for the Armed Forces (CAAF) has
clearly articulated that unnatural carnal copulation,
standing alone, is not a crime under the former version of
Article 125; further facts to be determined by the fact-
finder are essential to a conviction for non-forcible
sodomy. United States v. Castellano, 

, 218
(C.A.A.F. 2013).
     Specifically, to find an accused guilty of sodomy, the
fact-finder must determine the presence of at least one
Marcum factor. In United States v. Marcum, 

(C.A.A.F. 2004), the CAAF rejected a facial challenge to
Article 125 in the wake of Lawrence v. Texas, 

(2003); it instead analyzed the constitutionality of the
statute as applied to the appellant in that case by
considering whether the sodomy involved any of the
following: non-consensual activity; public conduct; minors;
prostitution; persons who might be injured or coerced or
who were situated in relationships where consent might not
easily be refused; or “additional factors relevant solely


                                  6
in the military environment that affect the nature and
reach of Lawrence liberty interests[.]” 

     Subsequently, in an unpublished decision, a panel of
this court addressed the assertion that Marcum factors
amounted to de facto elements and therefore must be pleaded
and submitted to the trier of fact. United States v.
Castellano, No. 201100248, 2012 CCA LEXIS 571, *13-14
(N.M.Ct.Crim.App. 26 Jun 2012). Denying relief, the court
reasoned that “[j]udicially created principles, such as the
Marcum factors, are not elements of offenses[,]” 

but rather factors for a military judge to consider in
making a legal determination, that is, the
constitutionality of Article 125 as applied to a particular
accused, 

     The CAAF rejected this analysis and reversed our
decision in part and remanded the case. United States v.
Castellano, 

, 220-23 (C.A.A.F. 2013). It
acknowledged that the Marcum factors are not elements of
the offense, but pointed out that aggravating factors
delineated by the President also are not elements, yet they
“must be pleaded in the specification, instructed upon to
the members, and determined by the trier of fact.” 

(citing Apprendi v. New Jersey, 

, 490
(2000)). Emphasizing the “critical significance” of the
presence of a Marcum factor in distinguishing between
criminal and non-criminal sodomy, it held that the trier of
fact must determine whether a Marcum factor exists. 

     The CAAF’s binding interpretation that Marcum factors
represent additional facts necessary to prove a criminal
act of sodomy——as opposed to factors to guide judges in
making legal determinations——constrains us to conclude
that, as a result, they must be pleaded in a sodomy
specification. First, “the Due Process Clause protects the
accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the
crime with which he is charged.” In Re Winship, 

, 364 (1970). The existence of at least one Marcum
factor is, as established, a fact necessary to constitute
the crime of sodomy under the UCMJ. Second, a
specification, to be sufficient, must allege every element
expressly or by necessary implication. United States v.
Fosler, 

, 229 (C.A.A.F. 2011). Third, a fact
that is essential to a determination of guilt or innocence
to an offense, however it may be labeled, is the

                                7
“functional equivalent” of an element. 

, n.19; see also 

.
     With this backdrop, we are now ready to address the
LIO question. The specifications alleged only one Marcum
factor: by force and without consent. Viewing the four
corners of the specifications, no other factor is alleged,
either expressly or by necessary implication. We
specifically reject the Government’s contention that by
pleading the situs of the offenses as aboard the USS JOHN
C. STENNIS, the specifications necessarily implied that the
alleged acts implicated a unique military interest. While
the Government may believe it intuitive that sodomy aboard
a naval vessel meets the “unique military interest” Marcum
factor, this is not the same as constitutionally adequate
notice that the appellant’s alleged acts of sodomy were
criminalized not just because they were by force and
without consent, but due to other, missing Marcum factors.
     The offense of non-forcible sodomy thus required proof
of essential facts absent from the forcible sodomy
specification. As charged, then, non-forcible sodomy was
not an LIO of forcible sodomy and it was error to instruct
or to find otherwise.
     We also find the error was plain. When making this
determination, we consider the law at the time of the
appeal. United States v. Harcrow, 

, 159
(C.A.A.F. 2008) (“‘where the law at the time of trial was
settled and clearly contrary to the law at the time of
appeal – it is enough that an error be “plain” at the time
of appellate consideration’”) (quoting Johnson v. United
States, 

, 468 (1997)). While it is true that
the CAAF had decided Castellano by the date of trial in
this case, that decision did not directly overturn Useche’s
precedent that Marcum factors need not be pleaded in a
specification; this we do today. Viewing the matter now in
light of our holding that non-forcible sodomy under the
former version of Article 125 is not an LIO of forcible
sodomy unless other applicable Marcum factors are pleaded
and proven, the error in instructing otherwise is plain.
See 

(“As noted above, negligent
homicide is not an LIO of premeditated murder. Therefore,
instructing on negligent homicide as an LIO was error that
was clear and obvious” (citation omitted)).
     This, however, does not end our analysis. “An error
in charging an offense is not subject to automatic

                                8
dismissal, even though it affects constitutional rights.
Rather, this Court tests for prejudice.” United States v.
Wilkins, 

, 413 (C.A.A.F. 2012) (citations
omitted). To determine whether there is prejudice, “we
look to the record to determine whether notice of the
missing element is somewhere extant in the trial record, or
whether the element is ‘essentially uncontroverted.’”
United States v. Humphries, 

, 215-16 (C.A.A.F.
2012) (quoting United States v. Cotton, 

, 633
(2002)) (additional citation omitted).

     On this record, we find prejudice. The appellant had
no notice he was defending against any other theory that
his alleged acts of sodomy were criminal other than that
they were by force and without consent. This is in direct
contrast to Wilkins, where “Appellant's due process rights
were not violated because he was on notice of what he
needed to defend against throughout his 

(citations omitted).
     The focus throughout the trial remained on whether
that element——by force and without consent——was met. For
instance, in his opening statement, the trial defense
counsel (TDC) stated, “When it comes down to it, [the
appellant] is guilty of one thing, he was playing with
fire. He was being stupid. He was having sex with
different women onboard [sic] a ship. Now, he’s not
charged with that, that’s not a -- having sex with multiple
women is not a crime.” 6 In closing, he argued that the
appellant “is a player and that is the only thing that he
is guilty [of].” 7 Such statements demonstrate the appellant
was defending against an allegation that his acts of sodomy
were criminal because they were by force and without
consent——that but for that, the acts would not be criminal.
     The trial counsel also focused exclusively on force as
a theory of criminality. In his closing argument, he stuck
to this theory: “These two specifications are pretty
simple. Unnatural carnal copulation which The Manual for
Courts-Martial defines as oral sex, anal sex, by force and
without consent.” 8 He explained the Government’s theory of
how the sodomy was by force, never mentioning a theory that

6
    Record at 688 (emphasis added).
7
    

(emphasis added).
8
    

(emphasis added).
                                      9
it was also criminal even if consensual because it
implicated a unique military interest——or any Marcum factor
other than force.
     The Government puts much stock in the fact that it was
uncontroverted that the appellant committed the acts of
sodomy aboard a naval vessel——that this per se means that
the sodomy implicated a unique military interest. While
this perhaps would have been a strong theory of liability,
it is not one the Government advanced in its charging
document or in the course of the trial. The uncontroverted
fact that acts of sodomy occurred aboard a ship does not
demonstrate the defense was on notice and prepared to
defend against an allegation that the acts were criminal
because they implicated a unique military interest or met
some other unstated Marcum factor. Constitutional notice
requires more than a bald assertion that such a connection
is intuitive.
     We find neither evidence of notice of the missing
Marcum factors in the record nor that they were
“essentially uncontroverted,” 

.
Accordingly, the findings of guilty to both specifications
of Charge III and to Charge III must be set aside.
II. Use of Charged Misconduct as Propensity Evidence

      The appellant next contends that the military judge erred
when, over defense objection, he ruled that the charged sexual
assaults could be used for any relevant purpose under MILITARY RULE
OF EVIDENCE 413, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.),
including whether the appellant had a propensity to commit
sexual assaults. We disagree.
Background
     The Government provided the TDC timely notice of its intent
to use evidence of the charged sexual assaults for all relevant
purposes under MIL. R. EVID. 413. In response, the TDC filed a
motion to sever, arguing that evidence in the case of MM3 TM was
in no way admissible to prove allegations related to ABE2 MH and
vice versa, and that impermissible spillover would occur if both
sets of charges were tried together. The military judge denied
the motion to sever, ruled the evidence was admissible for all
relevant purposes under MIL. R. EVID. 413, and agreed to provide a
tailored spillover instruction.
     During trial, the military judge instructed the members
that if they determined by a preponderance of the evidence that
                                 10
sexual assault offenses pertaining to MM3 TM occurred, they
could consider the evidence of those offenses for its bearing on
any matter to which it was relevant in relation to the charges
and specifications regarding ABE2 MH——and vice versa. Relevant
matters, he explained, included, inter alia, “its tendency, if
any, to show the accused’s propensity or predisposition to
engage in sexual assault.” 9
        He then provided the following spillover instruction:
        You may not, however, convict the accused of a charge
        or specification solely because you believe he
        committed another charge or specification or solely
        because you believe that the accused has a propensity
        or predisposition to engage in sexual assault. In
        other words, you cannot use the evidence of one charge
        or specification to overcome a failure of proof in the
        Government’s case for another charge or specification,
        if you perceive any to exist.
        The accused may be convicted of an alleged offense
        only if the prosecution has proven each element beyond
        a reasonable doubt. Each offense must stand on its
        own and proof of one offense carries no inference that
        the accused is guilty of any other offense. In other
        words, proof of one sexual assault creates no
        inference that the accused is guilty of any other
        sexual assault. However, it may demonstrate that the
        accused has a propensity to commit that type of
        offense. The prosecution’s burden of proof to
        establish the accused’s guilt beyond a reasonable
        doubt remains as to each and every element of each
        offense charged. Proof of one charged offense carries
        with it no inference that the accused is guilty of any
        other charged offense. 10
     The TDC, having lost his motion to sever, did not object to
these instructions and, in fact, upon his request, the military
judge repeated them after closing arguments.
Law
     We review a military judge’s decision to admit evidence
under MIL. R. EVID. 413 for an abuse of discretion. United States

9
  

This language tracked the pattern instruction contained in the
Military Judges’ Benchbook, Dept. of the Army Pamphlet 27-9 (1 Jan 2010).
10
     

                                     11
v. Solomon, 

, 179 (C.A.A.F. 2013). Whether members
were properly instructed and whether application of a Military
Rule of Evidence was constitutional are questions of law that we
review de novo. United States v. McDonald, 

, 20
(C.A.A.F. 2002); see also United States v. Wright, 

(C.A.A.F. 2000).
     MIL. R. EVID. 413(a) provides:
     In a court-martial proceeding for a sexual offense,
     the military judge may admit evidence that the accused
     committed any other sexual offense. The evidence may
     be considered on any matter to which it is relevant.
     “[I]nherent in M.R.E. 413 is a general presumption in favor
of admission of evidence.” United States v. Berry 

,
95 (C.A.A.F. 2005) (citing 

).
     There are three threshold requirements before evidence may
be admitted under MIL. R. EVID. 413:
     1.    The appellant is charged with an offense of sexual
           assault;

     2.    The evidence proffered is evidence of the appellant’s
           commission of another offense of sexual assault; and

     3.    The evidence is relevant under MIL. R. EVID. 401 and 402.

.
      If the evidence passes those threshold requirements, the
military judge must then apply the balancing test under MIL. R.
EVID. 403, considering the following factors: strength of the
proof of the prior act; probative weight of the evidence;
potential to present less prejudicial evidence; possible
distraction of the fact-finder; time needed to prove the prior
conduct; temporal proximity; frequency of the acts; presence or
lack of intervening circumstances; and relationship between the
parties. 

judge should make detailed findings
on the record; failure to “sufficiently articulate his balancing
on the record” will result in his evidentiary ruling receiving
less deference. 

.
Analysis
     The appellant asserts that MIL. R. EVID. 413 “was never meant
to allow charges before a court-martial to support each other’s


                                  12
proof” 11 and that doing so in his case violated his
constitutional rights to presumption of innocence and due
process. We disagree.
     First, the plain language of MIL. R. EVID. 413——allowing
“evidence that the accused committed any other sexual offense”——
is broad and betrays no exception for charged misconduct. We
are not a rulemaking body and, even were we inclined to find
such an exception prudent, we are bound to apply the Rule as
written, not as may be desired, unless it is unconstitutional.

.
      Second, we see nothing more prudent or fair about a rule
that would prohibit evidence from being considered under MIL. R.
EVID. 413 if it pertains to charged offenses, but allow it if the
evidence is too old or too weak to be charged or if the
Government presents it twice in two separate courts-martial.
      Third, we reject the argument that MIL. R. EVID. 413 as
applied to charged misconduct is unconstitutional. “The
presumption is that a rule of evidence is constitutional unless
lack of constitutionality is clearly and unmistakably shown.”

The appellant has pointed us to no
precedent where a sister or superior court has interpreted MIL.
R. EVID. 413 to reach only uncharged misconduct. Instead, he
points to dictum from a panel of this court in United States v.
Myers, 

(N.M.Ct.Crim.App. 1999). There, in analyzing
the use of charged misconduct under MIL. R. EVID. 413, the panel
set aside the findings of guilty due to the military judge’s
failure to give a spillover instruction. 

Along its
way to this conclusion, the panel stated:
        We can find no reported case in which Mil. R. Evid.
        413 was held to allow one set of alleged sexual
        assault offenses to show an accused's "propensity" to
        have committed a different set of alleged sexual
        assault offenses (and vice versa), when both sets of
        offenses were joined together at one trial where the
        accused was cloaked in the presumption of innocence
        with respect to all. Indeed, we believe this case
        presents a constitutional quagmire that the drafters
        of Mil. R. Evid. 413 probably never envisioned.

     We do not agree with this dictum, but more importantly, it
preceded the CAAF’s decision in Wright. There, the evidence of
11
     Appellant’s Brief at 27.
                                  13
the “other sexual offense” was indeed evidence of charged
misconduct. Yet the CAAF rejected the constitutional challenges
to the Rule and went so far as to state, “This is the type of
case in which this evidence was designed to be admitted.”

.
     The application of MIL. R. EVID. 413 to misconduct——charged
or uncharged——is subject to the same procedural safeguards in
place to protect the rights of the accused. The military judge
must apply the Wright factors and undertake a rigorous balancing
test before allowing evidence of charged misconduct to be used
to demonstrate propensity. Additionally, a properly crafted
spillover instruction protects the presumption of innocence and
ensures that the prosecution must prove each element of each
offense beyond a reasonable doubt. 

CAAF explained,
this does not offend the Constitution: “‘Individual pieces of
evidence, insufficient in themselves to prove a point, may in
cumulation prove it. The sum of an evidentiary presentation may
well be greater than its constituent parts.’” 

v. United States, 

, 691 (1988)).
      Next, the appellant argues that the military judge erred by
not properly applying the procedural safeguards necessary to vet
MIL. R. EVID. 413 evidence. We disagree.
     “When a military judge articulates his properly
conducted M.R.E. 403 balancing test on the record, the decision
will not be overturned absent a clear abuse of discretion.”

(citation omitted). The military judge
in this case articulated his ruling on the record, both orally
and in writing, and provided detailed analysis. First, he
addressed each of three threshold determinations and found them
met. The appellant concedes that the two sets of charged
offenses “facially meet these criteria.” 12
     He then conducted the MIL. R. EVID. 403 balancing test,
considering each of the factors under Wright. The appellant
asserts the military judge erred when determining the first
factor: strength of proof of the prior act. In his written
findings, the military judge stated that “[t]he ‘prior acts’ in
this case will be proven by the alleged victims’ testimony which
will be subject to cross examination by defense counsel and
questions by the members[.]” 13 The appellant avers this

12
     

13
  Appellate Exhibit LIV at 2. When orally issuing his ruling, he clarified
“or should be proven.” Record at 357.


                                     14
effectively bypassed MIL. R. EVID. 403 and this factor was not
determined until the completion of the Government’s case.
     We find that this did not amount to an abuse of discretion.
The military judge was not merely deferring to see what the
evidence would be at trial; part of the submissions he
considered were statements and prior testimony of both
complaining witnesses as well as other evidence. In conducting
his balancing, the military judge was entitled to consider that
the evidence was already coming in as evidence of charged
misconduct and would be further subject to the crucible of
trial. That properly was a factor in assessing the danger of
unfair prejudice; the military judge indicated his findings
instructions on the proper use of the evidence could be modified
if the evidence did not pan out. Even assuming arguendo the
military judge’s articulation of the first prong was not
entirely artful, that in no way invalidates his determination
that the evidence met the balancing test and was admissible
under MIL. R. EVID. 413. Accordingly, we find the military judge
did not abuse his discretion by allowing evidence of the charged
offenses to be considered under MIL. R. EVID. 413.
     Finally, we find that the military judge’s instructions on
consideration of the evidence under MIL. R. EVID. 413, the
presumption of innocence, and spillover were correct and
sufficed to ensure the evidence was considered in its proper
context and that the appellant was afforded a fair trial.
III. Prosecutorial Misconduct

     The appellant next avers the trial counsel (TC) committed
prosecutorial misconduct when, during rebuttal argument on the
merits, he purportedly: (1) “accused the members of ‘victim
blaming’ if they listened to the defense” 14; (2) offered his
personal opinion; (3) mischaracterized the evidence; and (4)
improperly bolstered MM3 TM’s credibility by mischaracterizing
her testimony. We disagree.

Background

     In support of his contentions, the appellant highlights the
following remarks made by the TC during rebuttal argument on the
merits:



14
     Appellant’s Brief at 35.


                                15
        - Defense counsel is right, you saw her [MM3 TM], if
          that’s a lie, we’ll see her next year at the academy
          awards. Frankly, if that’s a lie she’s got to be a
          sociopath to invoke her mom like that. 15

        - Got to talk about victim blaming. Do you ever
          wonder why victims of sexual assault are unsure
          about coming forward? . . . . You saw defense
          counsel get up here, use words like, whore, slut,
          liar, adulterer, crazy, vindictive. And that was
          just on cross-examination. Then we’ve got moral
          transgressions, dirty sex, they look like children.
          She wants to be the judge, the jury. She’s using
          her sex in feminine ways to get ahead. These two
          women are staying safe behind the word, victim. 16

        - They offer you a ton of reasons why [ABE2 M.H.]
          might be lying. I kind of lost count . . . . They
          gave you a lot of them. They threw them all up at
          the wall and they said well, I hope the members pick
          one. But none of them are any good. They’re hoping
          you’ll just be swayed by sheer creativity and
          numbers. 17

        - Asking MM3 [TM], why are you looking at trial
          counsel? Well, she actually said, I was actually
          looking at my victim advocate. She’s the one that’s
          helping get me through this, just seeing her face
          for support. That’s what MM3 [TM] was doing and she
          told you that. But God forbid, God forbid if this——
          if any of these women look for support, if they look
          for help. It is a classic effort to shift the
          blame, shift the blame on them, blame the victim.
          Belittle them, what the accused did was so bad, it
          was so unwanted. Belittle their pain, belittle it
          and just tell them it doesn’t matter. Because as
          far as the accused is concerned, he’s the victim
          here. . . . Because he’s a predator and he’s a
          rapist and he’s using them to cover his own



15
     Record at 1269.
16
     

17
     

                                  16
           misdeeds. He’s calling them crazy, lying, whores,
           adulterers, sluts. 18

     Shortly after the final comment above, the TDC interjected
to request a hearing outside the presence of the members. The
appellant then objected to the TC’s argument and moved for a
mistrial, asserting he had mischaracterized the evidence
regarding calling the complaining witnesses names and regarding
whom MM3 TM was looking at during cross-examination. The
military judge denied a mistrial, but provided the following
curative instruction at the end of argument:

        Members, you have just heard an explanation of the
        facts by counsel for both parties as they view them.
        I remind you, again, to bear in mind that the
        arguments of counsel are not evidence. Argument is
        made by counsel in order to assist you in
        understanding and evaluating the evidence. Anything
        counsel has said that you feel conflicts with the
        evidence or with the instructions I have given you,
        you should follow the instructions I have given you
        and the evidence as you weigh it and as you recall
        it. 19

Law

     When an appellant fails to object to alleged prosecutorial
misconduct at trial, we review for plain error, only granting
relief if the appellant carries his burden of demonstrating:
(1) there is error; (2) that is clear or obvious; and, (3) that
materially prejudiced a substantial right of the accused.
United States v. Fletcher, 

, 179 (C.A.A.F. 2005).

     When an appellant objects to alleged prosecutorial
misconduct at trial, we review for prejudicial error. United
States v. Hornback, 

, 159 (C.A.A.F. 2014). A
military judge’s failure to grant a motion for mistrial is
reviewed for an abuse of discretion, bearing in mind that a
mistrial is “a drastic remedy to be used only sparingly to
prevent manifest injustice.” United States v. Thompkins, 

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

     Prosecutorial misconduct occurs when a prosecutor
“‘oversteps the bounds of that propriety and fairness which
18
     

19
     

                                  17
should characterize the conduct of such an officer in the
prosecution of a criminal offense.’” 

(quoting Berger v. United States, 

, 84 (1935)).
“Prosecutorial misconduct can be generally defined as action or
inaction by a prosecutor in violation of some legal norm or
standard, e.g., a constitutional provision, a statute, a Manual
rule, or an applicable professional ethics canon.” United
States v. Meek, 

, 5 (C.A.A.F. 1996) (citing 

).

     “It is improper for a trial counsel to interject herself
into the proceedings by expressing a personal belief or opinion
as to the truth or falsity of any testimony or evidence.”

(citations and internal quotation marks
omitted). Ways a prosecutor may run afoul of this rule include
giving personal assurances that the Government’s witnesses are
telling the truth or offering “substantive commentary on the
truth or falsity of the testimony and evidence.” 

(citation omitted). A prosecutor also must confine his argument
to the “‘evidence of record, as well as all reasonable
inferences fairly derived from such evidence.’” United States
v. Frey, 

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

, 237 (C.A.A.F. 2000)).

Analysis

     We find that by failing to object at trial to the first two
complaints (regarding “victim blaming” and personal opinion),
the appellant forfeited these claims and that he has not
demonstrated plain error. First, it is clear from the context
of the TC’s rebuttal that he was, in response to the defense
counsel’s argument, squarely accusing the defense, not the
members, of victim blaming. He argued the defense was
attempting to shift blame to the victims in an effort to divert
attention from the appellant’s actions. This was not an
unreasonable argument: the TDC had just spent much of his rather
lengthy closing excoriating the complaining witnesses.

     Second, while some of the TC’s comments taken in isolation
may have approached “substantive commentary on the truth or
falsity of the testimony and evidence,” 

, we think it far from plain or obvious that, taken in
context, he was offering a personal belief or opinion. His
remarks were limited to rebuttal argument and responded to
opposing counsel’s argument. For instance, the TDC had spent
some time discussing “the way [MM3 TM] testified,” adding, “I’ll
give you this, I did believe it was a little unfair to start

                               18
with these really terrible stories of her upbringing and her
[deceased] mother.” 20 He accused the Government of “cueing her
up to get all her emotions going” and argued that while ABE2 MH
had her moments, “the academy award goes to [MM3 TM].” 21 He also
commented, “We’re not in a high school cafeteria.” 22

     Finally, while the appellant attempts to draw an analogy to
Fletcher, the relatively brief, isolated comments during
rebuttal argument in this case——including the commentary that
none of the defense explanations about ABE2 MH’s motive to
fabricate were “any good”——do not even approach the repeated,
“blatant” interjection of personal beliefs and opinions found to
be prejudicial error in 

. Given the
context, we find that the trial counsel’s comments did not cross
the “‘exceedingly fine line which distinguishes permissible
advocacy from improper excess.’” 

(quoting United
States v. White, 

, 207 (2d Cir. 1973)).

     Moving to the assertions that were the subject of the
motion for mistrial, the appellant argues the TC misled the
members regarding words the TDC used to describe the victims and
improperly bolstered MM3 TM’s credibility by mischaracterizing
where she was looking during cross-examination. We first note
that, contrary to the appellant’s assertion, the TDC did use the
words “whores” and “sluts” when he asked ABE2 MH, “I mean, you
didn’t want to be known as a slut or a whore around the ship,
right?” 23 Further, in terms surely not lost on the members——nor
on us——TDC unmistakably implied the remaining descriptors in
numerous comments we find unnecessary to catalog here.

     The TDC was, however, correct that the TC erred by arguing
that MM3 TM, when confronted about whether she was looking at
the TC, responded she was looking at her victim advocate. It
was, in fact, during direct examination that she alluded to
looking at her victim advocate. During cross, she stated she
was merely scanning the room. The appellant complains this was
inaccurate and improperly bolstered MM3 TM’s credibility.

     Both of these objections, however, were properly addressed
by the military judge; we find no abuse of discretion in his

20
     

21
     

at 1243.
23
     

                               19
decisions to provide a curative instruction and to deny a
mistrial.

     Furthermore, even were we to assume error arguendo for
either the unobjected to or objected to comments, we find no
prejudice. In assessing whether there was prejudice from
prosecutorial misconduct, we examine three factors: (1) the
severity of the misconduct; (2) curative measures taken; and (3)
the strength of the Government’s case. 

.

     The severity was low. In a lengthy trial, the appellant
points to relatively isolated comments covering a small fraction
of the trial and restricted to rebuttal argument. The members,
who deliberated for over four hours, made findings that
demonstrate their ability to make an independent assessment of
the evidence to reach their own conclusions. There is no
evidence of the TC failing to abide by the military judge’s
rulings. As a curative measure, the military judge instructed
the members to disregard any arguments of counsel that
conflicted with the evidence or the judge’s instructions. The
Government’s case for those offenses resulting in a conviction
was reasonably strong. Given all this, we are confident in the
members’ ability to adhere to the military judge’s instructions
and to put counsel’s arguments——particularly those about where
witnesses were looking while testifying and what names the
parties called each other——in their proper context. Finally, it
must be pointed out that the members acquitted the appellant of
all allegations of forcible conduct against MM3 TM, so any
purported attempts to bolster her credibility apparently had no
effect.

IV.   Sentence

     Having set aside the findings as to Charge III and both of
its specifications, we next consider whether we can reassess the
sentence. A “‘dramatic change in the penalty landscape’
gravitates away from the ability to reassess” a sentence.
United States v. Buber, 

, 479 (C.A.A.F. 2006)
(quoting United States v. Riley, 

, 312 (C.A.A.F.
2003)). By setting aside the findings of guilty to the sodomy
specifications, the maximum period of confinement goes from 14
years down to only four. MCM, Part IV, ¶ 16e(1) and App. 28, ¶
45f(7). As noted, the appellant’s sentence as approved includes
seven years’ confinement. Our action on findings thus
dramatically changes the penalty landscape and we cannot


                               20
reliably determine what sentence the members would have imposed.

.

                           Conclusion

     The findings of guilty to Charge III and the specifications
thereunder and the sentence are set aside. Charge III and its
specifications are dismissed. The remaining findings of guilty
are affirmed. The record is returned to the Judge Advocate
General of the Navy for remand to an appropriate CA with a
rehearing on sentence authorized. Art. 66(d), UCMJ.

     Judge HOLIFIELD and Judge MARKS concur.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




                               21