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

                               No. ACM 39299
                          ________________________

                            UNITED STATES
                                Appellee
                                      v.
                        Ryerson L. CLIFFORD
                 Captain (O-3), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                         Decided 16 January 2019
                          ________________________

Military Judge: Marvin W. Tubbs, II.
Approved sentence: Dismissal and confinement for 9 months. Sentence
adjudged 9 May 2017 by GCM convened at Cannon Air Force Base, New
Mexico.
For Appellant: Major Meghan R. Glines-Barney, USAF.
For Appellee: Lieutenant Colonel Joseph Kubler, USAF; Captain Anne
M. Delmare, USAF; Mary Ellen Payne, Esquire.
Before MAYBERRY, MINK, and LEWIS, Appellate Military Judges.
Chief Judge MAYBERRY delivered the opinion of the court, in which
Judges MINK and LEWIS joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                       ________________________
   MAYBERRY, Chief Judge:
   Appellant was found guilty by a military judge, in accordance with his pleas
and pursuant to a pretrial agreement (PTA), of three specifications of aggra-
vated assault with a loaded firearm likely to produce death or grievous bodily
                    United States v. Clifford, No. ACM 39299


harm,1 three specifications of assault consummated by a battery for pushing
and kicking his wife, three specifications of child endangerment by culpable
negligence (stemming from the three incidents where he pushed and kicked
his wife, who was holding their infant child at the time),2 and one specification
of willfully discharging a firearm in an occupied room under circumstances
such as to endanger human life, in violation of Articles 128 and 134, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 928, 934. The military judge
sentenced Appellant to a dismissal and confinement for 16 months. Pursuant
to the PTA, the convening authority approved only nine months of confine-
ment, deferred automatic forfeitures of pay and allowances until action, and
waived the automatic forfeitures from the date of action for a period of six
months, or until Appellant’s release from confinement or expiration of his term
of service, whichever sooner, for the benefit of Appellant’s spouse.
    Appellant raises one issue for our consideration on appeal: (1) whether the
absence of four attachments to the stipulation of fact constitutes an incomplete
record of trial for which he should receive sentence relief. We find the record of
trial to be substantially complete, and therefore find no relief warranted.

I. BACKGROUND
    Appellant was a rated crewmember qualified in a number of airframes. At
the time of his offenses, Appellant had ten years commissioned service and was
serving as a U-28A Combat Systems Officer. Earlier in his career, while in
mission crew commander training, he was administratively disciplined after
being arrested for operating a vehicle under the influence of alcohol, and as a
result was removed from training for one year. Although Appellant was ulti-
mately permitted to return to flying status, he was non-selected for promotion
to the rank of major, and was facing administrative separation action from the



1 Appellant was originally charged with two specifications of assaulting two different
superior commissioned officers in the execution of their official duties in violation of
Article 90, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 890. Appellant of-
fered to plead guilty, and the convening authority agreed, to the lesser-included offense
of aggravated assault. At trial, the military judge found that aggravated assault was
not a lesser-included offense, but agreed to accept Appellant’s plea in accordance with
the PTA. We need not address the military judge’s determination as to whether Article
128, 10 U.S.C. § 928, is a lesser-included offense of Article 90.
2 The military judge granted the uncontested motion to find the two assault specifica-
tions involving Lieutenant Colonels PW and DE, the three assault specifications in-
volving Appellant’s wife, and the three child endangerment specifications unreasona-
bly multiplicious for sentencing purposes. This finding dropped the maximum author-
ized confinement from 29 years and six months to 18 years and six months.


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                   United States v. Clifford, No. ACM 39299


Air Force as a result of his non-selection for promotion on the date the offenses
occurred.
    On 21 August 2016, Appellant consumed a large amount of alcohol at home,
and during the early evening hours he engaged in a telephone conversation
with another squadron member, and ultimately that squadron member’s
spouse. The phone call turned contentious and concluded with Appellant ex-
claiming, “F**k you, don’t ever talk to me again.” After hanging up, Appellant
discussed with his wife, KC, why the phone call had gone so badly. During the
course of that discussion, KC poured Appellant’s drink down the drain and
placed the plastic cup in the sink. Appellant retrieved the cup and threw it at
KC. During this time, KC was holding the couple’s ten-month-old daughter.
Appellant then proceeded to push KC twice, the second time causing KC and
the baby to fall to the floor. While KC was on the floor, Appellant kicked her
as she continued to hold their daughter in her arms. KC ultimately left their
home taking the infant and their three-year-old daughter with her next door
to the home of another military family.
    The neighbor called Appellant’s commander, Lieutenant Colonel (Lt Col)
PW, and asked for help. Before Lt Col PW arrived, KC returned to the house
to get her wallet. She found Appellant in their bedroom, with multiple weapons
and ammunition on the bed, loading magazines. When KC asked Appellant
what he was doing, he told her to get out or he would shoot her. He then pinned
her up against the wall with the gun in his hand and told her to go away, giving
her until the count of ten. Unable to find her wallet, KC walked through the
house, pausing briefly in the kitchen to grab a cell phone off the counter. Ap-
pellant having followed her, was in the kitchen as well, counting down, and
discharged a round from the handgun on the count of “three.” That round went
into the front of the oven. KC then fled the home and waited for Lt Col PW to
arrive.
    Lt Col PW, along with the squadron director of operations, Lt Col DE, ar-
rived and learned from KC that Appellant was intoxicated and laying out
weapons and ammunition. KC did not tell them of the assaults that had al-
ready taken place in the house. KC gave them the keys to the house and Lt
Cols PW and DE went together to the door, found it unlocked, and entered the
home. They announced their presence and shortly after stepping into the
house, Appellant came around the corner of the kitchen, alternately pointing
the weapon at each of their heads, and told them to leave. Despite both Lt Cols
PW and DE saying they only wanted to talk, Appellant walked toward the two
men, continuing to point the weapon. Lt Cols PW and DE walked backwards
out of the door, each going in a different direction after leaving the front porch
but stopping in the yard. Appellant remained on the porch with the weapon
raised and alternated pointing it at each of them. After a short time, Appellant


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                  United States v. Clifford, No. ACM 39299


then returned inside the home and Lt Cols PW and DE returned to the neigh-
bor’s yard.
    While Lt Cols PW and DE were deciding what to do next, Appellant came
out of the house, with his hands in the air indicating he was unarmed, stating
“call the police,” “the guns are in the house,” and that “he has been to jail be-
fore.” Lt Col PW and DE patted Appellant down, removed a loaded magazine
from his back pocket, and tossed it on the ground. They spoke with Appellant,
assessing that he had not eaten for quite some time, and ultimately took Ap-
pellant to get some food. While in the car, Appellant continued to ask Lt Cols
PW and DE precisely where they lived. Later in the evening, Lt Cols PW and
DE transported Appellant to the local hospital for evaluation. Appellant had a
blood alcohol content of 0.158 percent at 2125 hours, and he remained in the
hospital overnight. The following day, Appellant was transported to a medical
facility in El Paso, Texas, where he spent 45 days in inpatient treatment.
    After the events of 21 August 2016, Appellant was issued three no-contact
orders, one each prohibiting him from contacting the families of Lt Cols PW or
DE (both members deployed just days after the incident), and his own wife and
children. Over time, the restrictions concerning Appellant’s family were incre-
mentally lessened, and Appellant was allowed to move back in with his family
a few weeks prior to his trial.

II. DISCUSSION
A. Additional Background
   The original record of trial (ROT) forwarded to this court did not contain
four attachments to Prosecution Exhibit (PE) 1, the stipulation of fact. Attach-
ment 1 is a depiction of the floor plan of Appellant’s home; Attachment 2 is
“oven pictures;” Attachment 3 is the Sanity Board (Short Report), dated 29
November 16; and Attachment 4 contained 29 pages from the Diagnostic and
Statistical Manual of Mental Disorders (DSM)-5.
    After Appellant filed his assignment of error, the Government jointly filed
its answer and a motion to attach identical copies of the missing PE 1 attach-
ments, along with an affidavit from the assistant trial counsel attesting to the
accuracy and completeness of the attachments. While the court did grant the
motion to attach, we did not consider the additional documents in our Article
66, UCMJ, 10 U.S.C. § 866, review.
B. Law
   The issue of whether a ROT is complete is a question of law that we review
de novo. United States v. Stoffer, 53 M.J. 26, 27 (C.A.A.F. 2000).




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                  United States v. Clifford, No. ACM 39299


    Article 54(c)(1), UCMJ, 10 U.S.C. § 854(c)(1), and Rule for Courts-Martial
(R.C.M.) 1103(b)(2)(D)(v) require that a complete record of proceedings, includ-
ing all exhibits received into evidence, be prepared for all general courts-mar-
tial that result in a sentence to a punitive discharge. United States v. Lovely,
73 M.J. 658, 676 (A.F. Ct. Crim. App. 2014).
    R.C.M. 1103(f)(1) imposes sentence limitations when a required verbatim
transcript cannot be prepared. R.C.M. 1104(d) addresses the process for cor-
recting a record of trial after authentication.
   If a record contains a verbatim transcript, but is otherwise incomplete,
“R.C.M. 1103(f)’s limiting provisions are inapposite.” United States v. Gaskins,
72 M.J. 225, 230 (C.A.A.F. 2013). Instead, this court’s power to remedy an in-
complete record that contains a verbatim transcript stems from Article 66,
UCMJ. Id. at 231.
    A record of trial that is missing exhibits may be substantially incomplete.
Stoffer, 53 M.J. 26 (holding that the record was substantially incomplete for
sentencing when all three defense sentencing exhibits were missing). However,
“[i]nsubstantial omissions from a record of trial do not raise a presumption of
prejudice or affect that record’s characterization as a complete one.” United
States v. Henry, 53 M.J. 108, 111 (C.A.A.F. 2000) (holding that four missing
prosecution exhibits were insubstantial omissions when other exhibits of sim-
ilar sexually explicit material were included). “[A] substantial omission ren-
ders a record of trial incomplete and raises a presumption of prejudice that the
government must rebut.” United States v. Harrow, 62 M.J. 649, 654 (A.F. Ct.
Crim. App. 2006) (citation omitted), aff'd, 65 M.J. 190 (C.A.A.F. 2007). We
must approach the question of what constitutes a substantial omission on a
case-by-case basis. United States v. Abrams, 50 M.J. 361, 363 (C.A.A.F. 1999)
(citation omitted).
C. Analysis
    Appellant asserts the failure to properly include these attachments consti-
tutes a substantial omission in light of trial counsel’s reference to these docu-
ments during the sentencing argument, specifically the DSM-5 materials ad-
dressing alcohol use disorder. As a result, Appellant requests relief based on
the sentencing limitation of R.C.M. 1103. The Government concedes that the
original record was forwarded to this court without including Attachments 1–
4 of PE 1. However, the Government avers that its motion to attach “identical
copies” negates the need for the record to be reconstructed. We disagree with
the positions of both parties, but find the authenticated record is substantially
complete.




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                   United States v. Clifford, No. ACM 39299


    There is no question that the original ROT does not contain the four attach-
ments to PE 1. The Government’s attempt to “reconstruct” the record fails be-
cause there was no certificate of correction in accordance with R.C.M. 1104(d).
Additionally, the deficiency of the ROT does not affect the verbatim transcript,
and therefore R.C.M. 1103(f) is inapplicable. We note the attachments, while
identified on PE 1, are not incorporated into the total page count of PE 1. Fur-
thermore, when PE 1 was offered into evidence, the military judge pointed out
that the attachments were not included and a short recess was taken to ensure
all parties had the complete exhibit. Despite this red flag, all of the trial par-
ticipants failed to ensure the complete exhibit was included in the record. Fi-
nally, and most relevant, the military judge authenticated the record without
the attachments. Despite these facts, we find the record contains sufficient in-
formation to allow us to fully perform our appellate review function pursuant
to Article 66. See Abrams, 50 M.J. at 363.
    In Stoffer, the Court of Appeals for the Armed Forces concluded the absence
of three defense exhibits was a substantial omission and did not approve the
punitive discharge. 53 M.J. at 28. However, in accordance with Abrams, the
holding in Stoffer must be limited to the facts of that case. Stoffer involved the
introduction of three defense exhibits that were admitted without any further
identification as to what the exhibits were or what was contained within them,
and the exhibits were never referred to again after their introduction or other-
wise identified in the ROT. Id. at 27. Holding that it could not “presume” what
information was contained in the exhibits and finding the Government had
failed to overcome the presumption of prejudice from the exhibits’ absence in
the ROT or show their omission to be harmless error, the court did not approve
the bad-conduct discharge. Id. However, this case is distinguishable from Stof-
fer because the facts of the case at hand are substantially different. This case
is more similar to Henry where the absence of prosecution exhibits was found
insubstantial because other matters within the record contained similar mate-
rial. See Henry, 53 M.J. at 111.
    Here, two of the four missing attachments are in fact contained within the
authenticated ROT. The floor plan was also introduced in a much larger format
as Attachment 1 to PE 2. Furthermore, the Short Report is also contained in
the preliminary hearing officer’s (PHO’s) report as PHO Exhibit 5 and as At-
tachment 7 to Appellant’s offer to resign in lieu of court-martial submitted on
4 January 2017. With respect to the “oven photos,” Appellant’s guilty plea and
his wife’s testimony during sentencing leave no question that Appellant dis-
charged a weapon into the oven. Additionally, paragraph 7 of the stipulation
of fact explains the “shot shattered the front of the oven and destroyed the
internal mechanics.” That leaves only the assorted pages from the DSM-5. The
Short Report includes diagnoses of “Unspecified Depressive Disorder and Al-
cohol Use Disorder – Severe – In Early Remission.” Trial counsel’s sentencing

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                   United States v. Clifford, No. ACM 39299


argument makes two references to the missing pages, quoting a portion of the
DSM-5 attachment and then arguing as to why another aspect should be dis-
regarded by the military judge:
       . . . “Alcohol use disorder has a variable course that is character-
       ized by periods of remission and relapse. A decision to stop
       drinking, often in response to a crisis” – such as this – “is likely
       to be followed by a period of weeks or more of abstinence. It’s
       often followed by limited periods of controlled or non-problem-
       atic drinking.” . . . “However, once alcohol intake resumes, it is
       highly likely that consumption will rapidly escalate and that se-
       vere problems will once again develop.”
       ....
       And you understand that one of those disorders that you can
       read about in the attachment affects the way that he portrays
       his emotion, it doesn’t portray the words that come out of his
       mouth. Because immediately after the event, the words that
       came out of his mouth were, “Call the cops. I’ve been to jail be-
       fore. Do what you have to do.”
    After a review of the entire ROT, we are confident that the missing attach-
ments are insubstantial omissions and the record is substantially complete.
The missing attachments have no impact on the underlying evidence or the
providence of Appellant’s guilty pleas. Specifically, the floor plan and the Short
Report are found elsewhere in the record. The absence of the oven photos in no
way diminishes our ability to conclude that Appellant discharged a weapon in
the kitchen while his wife was present. With respect to the DSM-5, the Short
Report contains the relevant diagnoses, but not the explanatory verbiage con-
tained in the missing pages. Neither Appellant nor his counsel directly referred
to the attachments in the sentencing phase of the trial.
    Appellant’s unsworn statement, however, did touch on the impact alcohol
and depression had on his life. Appellant spoke of how his treatment taught
him to understand his lack of emotional intelligence—“from always living in a
logic mind frame and dealing with things in a linear fashion”—contributed to
his drinking because it would “bring out the softer side of him, or the emotional
loving side.” He further addressed how he has difficulties expressing his emo-
tions, often coming across flat in circumstances where others would act differ-
ently. Additionally, he accepted that he is “an alcoholic, to a degree,” and would
“probably never drink again”—opining that he should have recognized his
drinking problem after his earlier arrest for driving under the influence (DUI)
of alcohol, but candidly stating “at that point in time I wasn’t really ready to
stop.” Trial counsel argued that if Appellant were to return to drinking, the


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                  United States v. Clifford, No. ACM 39299


language of the DSM-5 indicates a high probability such drinking would esca-
late rapidly and lead to severe problems developing once again. Appellant’s
history of alcohol related problems was readily evident by the fact that he had
a prior DUI offense, which was a contributing factor to his non-selection for
promotion. This non-selection was fully addressed by Appellant and his wife
as being one of the contributing factors to Appellant’s depression, which was
in turn a contributing factor to his excessive drinking, including the day of the
incident.
    Accordingly, we find any error as a result of the omission of the attach-
ments to PE 1 in this case to be harmless. The full extent of how alcohol and
depression impacted Appellant is well documented in the record and available
for our Article 66 review. Furthermore, we note that Appellant also requested
a dismissal, the most severe component of the sentence imposed. Appellant
acknowledged this was the most appropriate, “even if it is just one blip on a
decade of service.” Avoiding confinement was the focus of both his and his coun-
sel’s sentencing strategy. The crux of Appellant’s sentencing case was that he
wanted to put all of this behind him and be with his family. The military judge
considered all of the evidence available and determined an appropriate pun-
ishment. The absence of the attachments to PE 1 in no way prejudice our abil-
ity to fully conduct appellate review under Article 66.

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




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