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

                               Before
          J.R. MCFARLANE, M.C. HOLIFIELD, K.J. BRUBAKER
                      Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                        ARVIS D. OWENS
             COMMANDER (O-5), SUPPLY CORPS, U.S. NAVY

                           NMCCA 201300485
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 5 November 2013.
Military Judge: CAPT Carrie Stephens, JAGC, USN.
Convening Authority: Commander, Naval District Washington,
Washington, DC.
Staff Judge Advocate's Recommendation: LCDR J.D. Pilling,
JAGC, USN.
For Appellant: William E. Cassara, Civilian Counsel; Capt
David Peters, USMC.
For Appellee: LCDR Keith B. Lofland, JAGC, USN; Capt
Matthew Harris, USMC.

                           23 December 2014

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

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

HOLIFIELD, Judge:

     A panel of officers sitting as a general court-martial
convicted the appellant, contrary to his pleas, of violating a
lawful general order (sexual harassment), abusive sexual
contact, and conduct unbecoming an officer, in violation of
Articles 92, 120, and 133, Uniform Code of Military Justice, 10
U.S.C. §§ 892, 920, and 933. The appellant was acquitted of an
additional specification involving sexual harassment, three
specifications of abusive sexual contact, and one specification
of assault consummated by battery. The members sentenced
the appellant to be dismissed from the Service. The convening
authority (CA) approved the sentence as adjudged.
    The appellant raises eleven assignments of error (AOE):
    (1) that the Government’s failure to provide requested
    medical records of the victim denied him his 5th
    Amendment right to due process;
    (2) that the Government’s failure to provide evidence
    of the victim’s learning disability denied him his
    right to discovery under Article 46, UCMJ;
    (3) that the military judge denied the appellant’s
    Sixth Amendment right to confrontation by precluding
    cross-examination of the victim regarding her learning
    disability;
    (4) that the military judge erred in admitting the
    victim’s prior consistent statements when they were
    not made prior to when a motive to fabricate arose;
    (5) that the military judge improperly allowed the
    trial counsel to question the appellant regarding the
    veracity of a prosecution witness’ testimony;
    (6) that the failure to provide the members with the
    general order the appellant was accused of violating
    renders the evidence on that charge legally
    insufficient;
    (7) that the Article 92 specifications fail to state
    offenses, as the general order in question is not
    punitive;
    (8) that the military judge abused her discretion when
    she did not grant a mistrial when at least one member
    was no longer confident in the panel’s verdict;
    (9) that the evidence supporting the Article 120,
    UCMJ, charge was factually insufficient;
    (10) that the military judge’s post-trial order to the
    members denied the appellant an opportunity to submit
    clemency matters; and,



                                2
      (11) that the promulgating order inaccurately reflects
      the specification language of which the appellant was
      found guilty.1
     After careful consideration of the record of trial, the
appellant’s AOEs, and the written and oral submissions of the
parties, we find the evidence introduced at trial insufficient
to support a conviction for violation of a lawful general order
and will take corrective action in our decretal paragraph. Our
decision in this regard renders moot the appellant's seventh and
eleventh assignments of error.

                                 Background

     While assigned to the Defense Logistics Agency (DLA) as the
Strategic Management Branch Chief within the Order Management
Division, the appellant, a married man, worked with SD, a GS-4
civilian employee in the same Division. SD had been hired
through the Workforce Recruitment Program (WRP), which was
designed, at least in part, to facilitate the hiring of persons
with learning disabilities. The appellant and SD had frequent
interaction, and, despite SD often sharing personal information
during their meetings, their relationship was professional.
During a 4 October 2012 meeting in the appellant’s office, the
appellant and SD shared two “friendly” hugs and the appellant
commented favorably on her dress and appearance. Record at 626,
974. Six days later, the appellant called SD to his office. At
this meeting the appellant kissed SD and made numerous comments
of a sexual nature.2 The parties disagree as to whether this
conduct was consensual. Later that day, the appellant again
asked SD to come to his office. Upon her arrival, the appellant
kissed SD, rubbed her vagina through her underwear, touched and
kissed her breasts, placed SD’s hand on his erect penis, and
made numerous sexual comments.3 Again, the parties disagree as
to whether this conduct was consensual. Throughout the
encounter, SD did not try to leave or clearly articulate her
lack of consent. Rather, she made statements that she “didn’t


1
  We have considered AOEs 4, 5 and 8 and find no error.   United States v.
Clifton, 35 M.J. 79, 81 (C.M.A. 1992).
2
  The appellant was charged with violating a lawful general order by sexually
harassing SD through these comments, but was acquitted of this specification.
3
  Based on these comments, the appellant was convicted of violating a lawful
general order prohibiting sexual harassment. Although charged individually
with each of the sexual contacts, the appellant was convicted only of causing
SD’s hand to touch his penis without her consent.
                                      3
know how quiet [she] could be,” and “couldn’t wrap [her] head
around this.” Id. at 651-52.
     SD did not immediately report the appellant’s conduct and
witnesses observed nothing unusual about her demeanor that day.
She remained at the office until her normal departure time. SD
did not return to the office for more than two weeks following
this incident, giving her supervisor various excuses for why she
could not come in to work. At trial, SD testified she feared
going to the office, believing the appellant would rape her.
Several days after the encounter with the appellant, SD
contacted her personnel office seeking information on how to
make a sexual harassment/assault complaint. Shortly thereafter,
she was contacted by DLA’s Office of the Inspector General.
During SD’s absence, the appellant repeatedly attempted to
contact her and expressed concern for SD to SD’s supervisor, two
things he had not done during other periods when she was absent.
     Other facts necessary to address the assigned errors will
be provided below.
                         Discovery/Production

     The first two AOEs involve alleged discovery and production
violations. Prior to the Article 32, UCMJ, hearing in this
case, the defense requested, inter alia, “any medical records
which exist for [SD] for any medical treatment, received as a
result of any complaints pertaining to this investigation,” as
well as “any psychiatric records which exist for [SD]” that
either “may bear upon [SD’s] mental capacity on 4 and/or 10
October 2012” or reflect “treatment as a result of any mental
issues attributed to the alleged misconduct by [the appellant].”
Appellate Exhibit LXXI. The defense subsequently requested
“[a]ccess to all relevant personnel, medical and mental health
records of all potential witnesses who may testify against the
Accused at any stage of the case,” as well as “any medical or
psychiatric report or evaluation, tending to show that any
prospective witness’s ability to perceive, remember,
communicate, or tell the truth is impaired[.]” AE LXXII. While
trial counsel makes a passing reference to a Government
“response,” there is nothing in the record to indicate how the
Government answered these requests. Record at 1256.

     Article 46, UCMJ, requires that “the trial counsel, the
defense counsel, and the court-martial shall have equal
opportunity to obtain . . . evidence[.]” RULE FOR COURT-MARTIAL
703(F)(1), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) further
requires that the Government produce any evidence, specifically

                                   4
requested by the defense, upon a showing it is “relevant and
necessary.” We review claimed discovery and disclosure
violations in two steps: “‘first, we determine whether the
information or evidence at issue was subject to disclosure or
discovery; second, if there was nondisclosure of such
information, we test the effect of that nondisclosure on the
appellant’s trial.’” United States v. Coleman, 72 M.J. 184, 187
(C.A.A.F. 2013) (quoting United States v. Roberts, 59 M.J. 323,
325 (C.A.A.F. 2004)). Where the defense has made a general
request, we test nondisclosure for harmless error, that is,
“whether there is a reasonable probability that, had the
evidence been disclosed, the result of the proceeding would have
been different.” Id. at 186 (internal quotation marks and
citation omitted).   However, where the undisclosed matter was
the subject of a specific request, we look to see whether the
nondisclosure was harmless beyond a reasonable doubt. Id. at
187. This determination must be made in light of the entire
record. United States v. Morris, 52 M.J. 193, 197 (C.A.A.F.
1999).

Medical Records

     The appellant argues the prosecution failed to provide SD’s
medical records despite a specific request, and that the
military judge’s remedy for the nondisclosure – to preclude the
prosecution from mentioning any medical or psychological
treatment during sentencing – was inadequate.

     This issue first arose during trial when SD, responding to
a question from civilian defense counsel (CDC) regarding a
pending lawsuit, mentioned medical expenses. A subsequent
question from a panel member sought the details of SD’s medical
treatment; CDC did not object. After closing arguments, CDC for
the first time claimed a discovery violation concerning the
requested medical records. While the military judge did not
conclusively find that there was a violation, she stated she was
“inclined to make [a] determination that there was some
violation.” Record at 1260. She then instructed the members to
disregard any evidence on the merits regarding any medical or
psychological treatment SD may have received, and granted CDC’s
proposed remedy to preclude mention of any medical or
psychological treatment during sentencing.

     After stating the “government’s position was [the medical
records were] not relevant” at the time when the prosecution
responded to the production request, trial counsel admitted,
“[t]o be perfectly honest, I don’t know that they exist[.]” Id.

                                5
at 1254, 1256. Unfortunately, neither does the military judge
or this court. We are left to consider a long list of “what if”
questions based on what the records “may contain.” Appellant’s
Brief of 23 May 2014 at 17. The time to answer these questions
was at trial. CDC did not move to compel the production of the
requested records, request a delay in the trial to allow for an
in camera review by the military judge, or request a mistrial
based on the production violation. By not doing so, we find the
appellant waived the issue.

     There is a “‘reasonable presumption against waiver of
fundamental constitutional rights. . . [and such a] waiver is
effective only if it is knowingly and intelligently rendered.’”
United States v. Avery, 52 M.J. 496, 498 (C.A.A.F. 2000)
(quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). Such a
waiver requires affirmative action and not merely a failure to
object. Id. (citation omitted). Not every discovery violation
involves a constitutional right, as “Article 46 and its
implementing rules provide greater statutory discovery rights to
an accused than does his constitutional rights to due process.”
Coleman, 72 M.J. at 187 (citations omitted). However, we need
not determine whether the present violation impacted a
fundamental constitutional right; even applying the higher
“knowingly and intelligently rendered” test, we still find
waiver in this case.

     Here, CDC was aware of and objected (if somewhat belatedly)
to the alleged violation. Despite speculating on how the
medical records may have assisted him in impeaching SD on the
merits, CDC sought no remedy other than for sentencing. When
asked by the military judge for a proposed remedy, CDC stated:
“the remedy is that the witness not be allowed to testify about
things that haven’t been discovered on—on the defense.” Record
at 1257. When the military judge later indicated she would
instruct the members to disregard any evidence regarding medical
or psychological impact, CDC responded, “I’m fine with that.”
Id. at 1300. Had CDC insisted on the production of the medical
records, as he did regarding the learning disability testing
(addressed below), this court would be in a position to weigh
the relevance and necessity of those records. In foregoing this
remedy, despite being made aware of the records’ existence and
objecting to their nonproduction, CDC created the very situation
that waiver is designed to address.




                                6
Learning Disability Testing

     At the Article 32, UCMJ, hearing, SD testified she had a
learning disability. Despite being on notice of this issue –
now considered by the appellant to be critical to his case - the
defense neither filed a supplemental discovery request nor
questioned before trial the Government’s failure to turn over
any related documents in response to its general discovery
request.

     At trial, trial counsel mentioned SD’s learning disability
in his opening statement and sought to question SD on it during
direct examination. CDC objected, arguing lack of discovery and
lack of relevance to the offenses as charged.4 The military
judge found that the information “could be relevant” and allowed
the questions, stating the defense could cross-examine SD on the
matter and inquire whether SD had been tested for a learning
disability. Record at 600, 603. The military judge also
offered to give a limiting instruction if desired.
     The trial counsel asked several questions on the subject,
establishing that SD had a learning disability, was able to
graduate from high school despite this, and was hired through “a
program for people with disabilities.” Id. at 608. CDC’s
cross-examination on the topic was significantly more
substantial, eliciting testimony from SD that her condition
affected her ability to read quickly and sometimes required
people to explain things to her in more detail. SD also
testified that she had “normal social skills” and no “cognitive
disabilities.” Id. at 689. SD stated she had been tested for a
learning disability in high school, and that a report of this
testing existed.
     The military judge renewed her offer to provide a limiting
instruction; both the prosecution and defense declined the
offer, with CDC restating his request to see the learning
disability-related records. Id. at 796. SD subsequently
provided the report5 to the prosecution, who, at the military
judge’s direction, shared it with the defense. In response to
the CDC’s objection to the late discovery of the report, the
military judge ruled the prosecution could not use SD’s learning


4
  The Government did not charge the appellant with any offenses based upon
SD’s lack of capacity.
5
    AE LXIX.


                                      7
disability as “one of the bases for . . . any of the charges.”
Id. at 1101.
     The Government later called SD as a rebuttal witness.
During cross-examination, CDC sought to question SD on the
learning disability report. In response to a relevance
objection, CDC argued that he should be able to use the report
to impeach SD’s credibility. Specifically, he argued that,
since the report did not substantiate a claim of a learning
disability, SD’s earlier testimony that she had such a
disability was false. The military judge disagreed with CDC’s
interpretation of the report, stating that the report did not
impeach SD’s testimony. At that point, having had the benefit
of hearing SD’s testimony and seeing the report’s contents, the
military judge reversed her earlier ruling on the relevance of
SD’s learning disability and instructed the members to disregard
all testimony they had heard regarding the subject. CDC did not
object to this instruction.
     It is not disputed that the report was not in the
Government’s possession prior to the trial. It is also clear
that neither of the defense’s discovery requests identified the
report with the specificity required by R.C.M. 703(f)(3).6
However, the record indicates that the Government was aware of
SD’s learning disability, and knew that a record of testing
existed. Arguably, the Government should have known SD’s
learning disability might prove relevant when it decided to
raise the issue in its opening statement and case-in-chief.
     Whether these facts transform the defense’s general request
so as to meet the requirements of R.C.M. 703, or subject the
nondisclosure to the stricter review normally applicable to a
specific request, are not questions we need answer here, as the
appellant has not demonstrated prejudice. Assuming, arguendo,
that the defense made a specific request for the testing report,
that the failure of the Government to obtain and provide the
report in response to the defense’s request was error, and that
the military judge’s instruction to the members was an
insufficient remedy, we test whether the nondisclosure was
harmless beyond a reasonable doubt. The sole basis for the
report’s relevance offered by the CDC was to impeach SD’s claim
of having a learning disability. Unlike SD’s medical records,
we do know the contents of her learning disability testing

6
  R.C.M. 703(f)(3) requires that “any defense request for the production of
evidence shall list the item of evidence to be produced and shall include a
description of each item sufficient to show its relevance and necessity, a
statement where it can be obtained, and, if known, the name, address, and
telephone number of the custodian of the evidence.”
                                      8
report, and a thorough reading reveals the report comports in
all relevant aspects with her testimony. As we agree with the
military judge’s finding that the report in no way served to
impeach SD, we find any error in not disclosing the report prior
to trial was harmless beyond a reasonable doubt.
                          Confrontation

     The appellant next claims the military judge’s ruling that
SD’s learning disability was not relevant denied him the
opportunity to cross-examine SD and thereby deprived him of his
Sixth Amendment right to confrontation. We disagree.

     “Where the Sixth Amendment’s right to confrontation is
allegedly violated by a military judge’s evidentiary ruling, the
ruling is reviewed for an abuse of discretion.” United States
v. Moss, 63 M.J. 233, 236 (C.A.A.F. 2006) (citation omitted).
Where an abuse of discretion involving a constitutional right is
found, we look to see whether the error was harmless beyond a
reasonable doubt. Id. While the right of confrontation
“necessarily includes the right to cross-examine,” this right is
not unlimited. United States v. Ellerbrock, 70 M.J. 314, 318
(C.A.A.F. 2011) (citations omitted). A military judge may limit
interrogation that is “only marginally relevant.” Id. (internal
quotation marks and citations omitted).

     As discussed above, the military judge initially ruled that
evidence of SD’s disability “could be relevant,”7 only to later
rule that it was “not relevant to these proceedings.”8 While the
appellant seeks to make much of this reversal, it is easily
explained. The initial ruling was made in the absence of any
specific information regarding SD’s learning disability. Her
final ruling had the benefit of CDC’s cross-examination of SD
and a full review of the testing report. A military judge may,
“upon any question of law other than a motion for a finding of
not guilty, . . . change his ruling at any time during the
trial.” Art. 51(b), UCMJ.

     CDC’s stated purpose for cross-examining SD on her learning
disability was to attack her credibility, saying: “she came in
here and testified that she has a learning disability and, based
on everything in this [report], it doesn’t appear to me that she
does.” Record at 1155. As we agree with the military judge’s
finding that the report corroborates SD’s testimony and does not

7
    Record at 600.
8
    Id. at 1154.
                                9
say that SD does not have a learning disability, we do not find
that the military judge abused her discretion in barring the
desired cross-examination.

     Even were we to assume error, we find no prejudice. The
appellant now argues on appeal that the learning disability was
relevant to explain why SD responded to the appellant and
investigators as she did. At trial, the defense specifically
addressed and rejected this argument: “there’s got to be a nexus
between the learning disability and the lack of response.”
Record at 602. He then noted the lack of any evidence showing
such a relationship other than SD’s testimony that “she needs
things explained to her at work or she has to read slower.” Id.
Given the absence of anything in the subsequently-produced
testing report to establish the nexus CDC found missing, we find
it very unlikely the defense would have changed its position and
argued relevance on the basis now raised on appeal. Even if
they had, we find beyond a reasonable doubt that it would have
had no impact on the verdict. Accordingly, we find that
precluding the line of questions sought by CDC, even assuming it
was error, was harmless beyond a reasonable doubt.

                  Legal and Factual Sufficiency

     The appellant claims, in his sixth and ninth AOEs, that the
evidence was factually and legally insufficient to sustain
convictions for violation of a lawful general order and abusive
sexual contact, respectively. We agree on the former and
disagree on the latter.

     We review questions of legal and factual sufficiency de
novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002). The test for legal sufficiency is whether any rational
trier of fact could have found that the evidence met the
essential elements of the charged offenses, viewing the evidence
in a light most favorable to the Government. United States v.
Turner, 25 M.J. 324, 324 (C.M.A. 1987). The test for factual
sufficiency is whether we are convinced of the appellant's guilt
beyond a reasonable doubt, allowing for the fact that we did not
personally observe the witnesses. Id. at 325. However,
reasonable doubt does not mean the evidence must be free from
conflict. United States v. Rankin, 63 M.J. 552, 557
(N.M.Ct.Crim.App. 2006), aff’d, 64 M.J. 348 (C.A.A.F. 2007).




                               10
Violation of a Lawful General Order

     The two specifications under Charge I alleged violations of
Secretary of the Navy Instruction 5350.16A, dated 18 December
2006. At trial, trial counsel marked a copy of the instruction
as “Prosecution Exhibit 14 For Identification”, and the military
judge took judicial notice of the instruction’s existence and
applicability to the appellant. During an Article 39(a), UCMJ,
session in which the parties discussed what portions of the
instruction would be published to the members, the military
judge stated, “the entire instruction is part of the evidence in
this case.” Record at 878. Trial counsel then responded by
offering the entire instruction as “Prosecution Exhibit 14.”
Id. However, despite the agreement of both parties and the
military judge that the instruction had been admitted into
evidence, the words “For Identification” were never struck, and
the exhibit was not provided to the members. Nevertheless, the
members found the appellant guilty of violating the instruction.

     The appellant was acquitted of the first   specification
under Charge I. Thus, we restrict our review    to the facts as
they apply to the second specification only.    The military judge
instructed the members on the elements of the   second
specification under Charge I as follows:

    In order to find the accused guilty of the offense,
    you must be convinced by legal and competent evidence
    beyond a reasonable doubt:

    One, that there was in existence a certain lawful
    general order in the following terms, SECNAV
    Instruction 5350.26ALPHA, dated 18 December 2006;

    Two, that the accused had a duty to obey such order;
    and,

    Three, that on or about 10 October 2012, the accused
    failed to obey this order--this lawful general order
    by sexually harassing [SD] by engaging in verbal
    conduct of a sexual nature, which had the effect of
    creating a hostile work environment when he told [SD]
    while at work “You know I am going to fuck you,
    right?” or words to that effect, “Look at me--look at
    what you do to me,” or words to that effect, referring
    to his erection. Then he had--that he had been good
    as long as he could, or words to that effect, that he
    was going to do something bad, or words to that

                               11
    effect, that her butt is nice, or words to that
    effect, that her breasts were nice, or words to that
    effect, and that he knew how to keep her quiet, or
    words to that effect.

    For [this] specification[], the following is provided:
    As a matter of law the order in this case, as
    described in the specification, if, in fact, there was
    such an order, was a lawful order.

Record at 1185-86. She also instructed the members that
she had “taken judicial notice that Secretary of the Navy,
SECNAV, Instruction 5350.16A is a lawful general order,
that it was in existence throughout October 2012, and that
the accused had a duty to obey it during that period of
time,” and that the members were “permitted to recognize
and consider those facts without further proof.” Id. at
1194. There was no discussion of the instruction’s
language.

     Thus, all the members knew of the instruction was that it
was a lawful general order in existence and applicable to the
appellant at the time of the alleged violation. Without having
the actual text of the instruction against which to examine the
appellant’s conduct, they were left to fall back on facts
outside the record. While these senior officers likely knew the
basic proscriptions of the Navy’s sexual harassment policy
through many years of training, they were properly instructed
that “[a]n accused may be convicted based only on evidence
before the court[.]” Id. at 1195. Accordingly, we conclude
that the appellant's conviction under Specification 2 of Charge
I cannot withstand the test for legal sufficiency, and will set
aside that finding of guilty and dismiss that specification.

Abusive Sexual Contact

     The elements of abusive sexual contact under Article 120,
UCMJ, are as follows: (1) That the appellant committed or
caused sexual contact by SD; and, (2) that the touching was done
by causing bodily harm to SD. The appellant and SD agree that
SD touched the appellant’s penis with her hand. But, while SD
stated the appellant placed her hand there against her will, the
appellant testified SD did so of her own volition.

     SD testified that the appellant “grabbed [her] hand and
started rubbing his erection with it.” Record at 652. She also
testified that, other than the initial two hugs, all contact

                               12
during the events in question was without her consent.
Accordingly, we find the prosecution presented evidence on every
element of the charged offense.

     The next question is whether the evidence was factually
sufficient. SD and the appellant, the sole occupants of the
room where the touching occurred, painted very different
pictures on the matter of consent. The issue, then, is whether
reasonable doubt exists with respect to SD’s testimony regarding
lack of consent. As matters in support of reasonable doubt, the
appellant offers two alleged motives to fabricate. First, the
appellant argues that SD was seeking revenge for a statement by
the appellant implying that she had no future with him. Second,
the appellant claims SD was seeking money; she hired an attorney
and filed suit against the Government for the sexual harassment
she allegedly endured.

     We give no weight to the first alleged motive. We simply
find incredible the appellant’s scenario: that a consensual
sexual encounter that ended with the appellant responding “I
don’t know” to SD’s asking “what does this mean?” triggered a
desire for revenge so strong as to support a false allegation of
sexual harassment and assault. Appellant’s Brief at 81-82. As
for the lawsuit, CDC questioned SD at length regarding the
matter. We find nothing in SD’s testimony to indicate a
fraudulent intent. To the contrary, the evidence indicates she
was simply exercising her right to seek compensation for a wrong
she suffered.

     The appellant also points to numerous inconsistencies
between SD’s various statements and in-court testimony. We find
these to be minor, as her testimony comported in all key aspects
with the appellant’s description of events. On the one
important issue where they diverge – consent – SD’s earlier
statements and testimony are consistent.

     Accordingly, after carefully reviewing the record of trial
and considering the evidence in the light most favorable to the
Government, we are convinced that a reasonable trier of fact
could have found all the essential elements of abusive sexual
contact beyond a reasonable doubt. Furthermore, after weighing
all the evidence in the record and having made allowances for
not having personally observed the witnesses, we are convinced
beyond a reasonable doubt of the appellant’s guilt to Charge II.




                               13
                              Post-Trial Matters

     The appellant next claims that the military judge had post-
trial communications with the members that had a chilling effect
on his ability to obtain clemency recommendations. He also
claims the staff judge advocate (SJA) withheld one or more
clemency recommendations from the CA.

Post-Trial Order to Members

     The military judge shall “[i]nstruct the members on
questions of law and procedure which may arise.” R.C.M.
801(a)(5). “‘The question of whether a jury was properly
instructed is a question of law, and thus, our review is de
novo.’” United States v. Maxwell, 45 M.J. 406, 424 (C.A.A.F.
1996) (quoting United States v. Snow, 82 F.3d 935, 938-39 (10th
Cir. 1996)).

     A military judge’s “hearing and ruling upon any matter
which may be ruled upon by the military judge . . . shall be
conducted in the presence of the accused, the defense counsel,
and the trial counsel and shall be made part of the record.”
Art. 39(a) and (b), UCMJ.   Other than when members are voting
or deliberating, all proceedings “shall be made part of the
record and shall be in the presence of the accused, the defense
counsel, the trial counsel, and in cases in which a military
judge has been detailed to the court, the military judge.” Art.
39(c), UCMJ.

     During deliberations on sentencing, a member asked the
military judge whether it would be possible for the panel to re-
vote on the findings to Specification 4 of Charge II (abusive
sexual contact). The military judge properly instructed the
members that, once findings are announced in open court,
reconsideration is not permitted. R.C.M. 924(a). The appellant
was sentenced on 13 September 2013.

     Eleven days after trial, CDC sent to the members an e-mail
explaining the clemency process and seeking their input. Most
notably, he requested statements from members regarding their
desire to set aside the findings of guilty on Specification 4 of
Charge I.9 One of the members, Captain (CAPT) O, responded by

9
    The entire email read as follows:

        I am contacting you to follow up on the request you made during
        your sentencing deliberations in the U.S. v. CDR Arvis Owens
        trial.   Some or all of you inquired about the procedure for
                                        14
saying he preferred to send his response directly to the CA.
The record does not indicate whether he actually sent anything
to the CA. Three days later, the President of the court-
martial, CAPT H, forwarded the CDC’s e-mail to the military
judge, seeking guidance. The judge responded by e-mail on 3
October 2013, directing CAPT H “to refrain from contacting any
counsel that is not on the record in open court,” and to “pass
this order along to the other members.” AE LXXXVII. She
advised that “[f]urther order of the court will be forthcoming
via the Trial Counsel.” Id.

     That same day, the military judge issued the following
order to the members:

    1. Prior to adjournment in this case, I instructed you as
    follows:

    To assist you in determining what you may discuss
    about this case now that it is over, the following
    guidance is provided. When you took your oath as
    members, you swore not to discover or disclose the
    vote or opinion of any particular member of this
    court, unless required to do so in due course of law.
    This means that you may not tell anyone about the way
    you or anyone else on the court voted or what opinion
    you or they had, unless I or another judge requires
    you to do so in court. You are each entitled to this
    privacy. Other than that limitation, you are free to
    talk about the case to anyone, including me, the


    reconsideration of your vote regarding Specification 4 of Charge
    II. The judge stated that you may not do so after findings. The
    Manual for Courts-Martial is silent on whether members may
    reconsider after findings.   Nonetheless, the final decision on
    all courts-martial convictions is the convening authority.   The
    convening Authority may approve, set aside, or approve some and
    set aside others of the charges. He may also grant clemency. I
    intend to request that the convening authority set aside the
    finding of guilty on Specification 4 of Charge II based on your
    request to reconsider.

    My request to the convening authority will receive more favorable
    consideration if I can demonstrate that my request is based on
    the wishes of at least 3 of the 7 members. I, therefore, request
    that you email me a brief email stating that [sic] your desire to
    set aside the finding of guilty on Specification 4 of Charge II.
    This is not a request for your vote, nor are you required to
    disclose your vote. It is only a request for you to individually
    – if you did – restate the request you made during the trial
    regarding that Specification.” AE LXXXVII.
                                   15
       attorneys or anyone else. You can also decline to
       participate in such a discussion if that is your
       choice.

       Your deliberations are carried out in the secrecy of
       the deliberation room to permit the utmost freedom of
       debate and so that each of you can express your views
       without fear of being subjected to public scorn or
       criticism by the accused, the convening authority, or
       anyone else. In deciding whether to answer questions
       about this case, and if so, what to disclose, you
       should have in mind your own interests and the
       interests of the other members of the court.

AE LXXXVII. This was a verbatim restatement of the instructions
she provided the members at the trial’s end. After quoting
CDC’s e-mail to the members, the military judge went on to
correct CDC’s incorrect statement of the law regarding R.C.M.
924(a). She further instructed the members:

       3. Pursuant to R.C.M. 1105(b)(2)(D), it is
       permissible for the Defense to seek from you and for
       you to provide a clemency recommendation to the
       convening authority.

       4. However, pursuant to R.C.M. 923, R.C.M. 1008,
       Military Rule of Evidence (M.R.E.) 606(b) and the
       Discussion to R.C.M. 1105 (b)(2)(D), a clemency
       petition from a member should not disclose the vote or
       opinion of any member expressed in deliberations.
       This prohibition extends to any member’s vote or
       opinion on the following: findings, any request to
       reconsider findings, and sentence.

Id.

     On 4 October, another member, Commander M, informed the CDC
that he had e-mailed his recommendation to the SJA. The record
does not indicate what, if anything, the SJA received from the
member, although the SJA stated in his recommendation to the CA
that “[t]here is no clemency recommendation by the sentencing
authority made in conjunction with the announced sentence.”10



10
     Staff Judge Advocate’s Recommendation of 31 Dec 2013 at 1.


                                       16
     The defense filed a written objection to the military
judge’s order on 9 October 2013, and requested a post-trial
Article 39(a), UCMJ, session. The defense also filed a motion
for a mistrial based on newly discovered evidence. At that
session the defense indicated it had ceased attempts to contact
the members, thinking it safer to request the post-trial
hearing. The defense’s objection, in part, was that in applying
an impeachment-of-the-findings standard to the defense’s
request, the military judge mischaracterized the request. The
military judge explained that her ruling did not characterize
the defense’s e-mail request in any way. However, she said the
request “tetered [sic] on asking for a vote[.]” Record at 1416.

     The military judge ruled that the order would stay in
effect, and denied the defense’s motion for a mistrial. In her
ruling, the military judge found that CDC’s e-mail to the
members was “asking for their votes and thoughts behind their
decisions,” and “[a]sking members who desired a revote to
restate their request to the Convening Authority effectively
asked members to reveal their vote in this regard.” AE XCIII at
5. She clarified, however, that her order “does not forbid or
otherwise prohibit any member from contacting the Convening
Authority to discuss matters permitted by the M.C.M.,” nor does
it “limit[] the ability of defense counsel to seek clemency
petitions from the members or provide clemency materials to the
Convening Authority.” Id. at 6.

     With this extensive background, we address the appellant’s
claim of error. First, the military judge’s e-mail to CAPT H
violated the requirements of Article 39(b) and (c), UCMJ.
However, while “violation of Article 39(b) creates a ‘rebuttable
presumption of prejudice,’” United States v. Thompson, 47 M.J.
378, 379 (C.A.A.F. 1997) (quoting United States v. Allbee, 18
C.M.R. 72, 76 (C.M.A. 1955)), we are not left speculating as to
the content of the military judge’s communications with the
members.11 The record contains the sum of these communications,
both in her e-mail to the CAPT H and her supplemental order.
Accordingly, we are able to review the case for prejudice. We
find none.

     Second, we find that any error the military judge may have
committed by issuing her e-mail order without giving the parties
an opportunity to be heard was cured by the subsequent Article
39(a), UCMJ, session. The military judge gave both parties a
11
  We note that both Allbee and Thompson involved the legal officer/military
judge communicating with the members during deliberations. That is not the
case here.
                                     17
chance to state their positions and persuade her to alter her
order. Had the defense been able to show how the order was in
any way a misstatement of the law, the military judge could have
revised or rescinded the order.

     Third, in her order the military judge discussed the extent
to which the defense could seek clemency recommendations from
the members. Despite any trepidation the defense may have had
before the hearing, once the military judge reaffirmed and
clarified her order the defense was free to revisit the matter
with the members. There is nothing in the record to indicate
the defense did so. Even assuming the military judge erred in
the procedural handling of this matter – and further assuming
the defense’s failure to reengage with the members does not
constitute forfeiture of the issue - we cannot say the appellant
has demonstrated any prejudice.

     Finally, we find no error in the language of the order
itself. The military judge simply restated her earlier
instructions, corrected CDC’s misstatement of the law, advised
the members that it was permissible for the defense to request
(and for the members to provide) a clemency recommendation, and
reminded the members of their duty not to disclose the vote or
opinion of any member expressed in deliberations. This order
was a full, clear, and accurate statement of the law. The
appellant’s unsupported examples of possible misunderstanding do
not persuade us otherwise.

Clemency Matters

     Errors in post-trial processing are reviewed de novo.
United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000). The Court
of Appeals for the Armed Forces has identified three
requirements for “resolving claims of error connected with the
convening authority’s posttrial review. First, an appellant
must allege the error at the Court of Criminal Appeals. Second,
an appellant must allege prejudice as a result of the error.
Third, an appellant must show what he would do to resolve the
error if given such an opportunity.” United States v. Wheelus,
49 M.J. 283, 288 (C.A.A.F. 1998). Furthermore, “there is
material prejudice to the substantial rights of an appellant if
there is an error and the appellant makes some colorable showing
of possible prejudice.” Id. at 289 (internal quotation marks
and citation omitted).

     Citing to the e-mails of CAPT O and CDR M, the appellant
claims the SJA withheld clemency recommendations from the CA.

                               18
While neither the SJA’s recommendation (SJAR) nor the addendum
thereto mentions any such recommendations, the CA, in taking his
action, states he considered “the email string indicating what
appears to be messages from members of the court-martial[.]”
Convening Authority’s Action of 16 Jan 2014 at 4. It appears
the CA is referencing the emails of CAPT O and CDR M, enclosed
in the defense’s clemency request. There is no mention in the
CA’s action of any specific recommendation from CAPT O or CDR M.

     We don’t know whether any members submitted clemency
recommendations. Due to the statements of CAPT O and CDR M that
they preferred not to submit their recommendations through CDC
or had already sent a recommendation directly to the SJA,
compounded by the SJA’s limited comment that there was “no
clemency recommendation by the sentencing authority made in
conjunction with the announced sentence,”12 the defense had no
way to know the CA had not seen or considered the purported
recommendations from CAPT O and CDR M. Since the SJA and CA
were aware of the e-mails in which the two members indicated
that they would or had submitted such recommendations, and there
being no evidence in the record to indicate the SJA or CA took
steps to contact either member and resolve the apparent
discrepancy, under the specific facts presented, we find it was
error to leave the question answered.

     Given the members’ role in the proceedings, any clemency
recommendation from them would likely carry particular weight
with the CA. The record here indicates two senior officer
members either intended to or did provide such a recommendation.
Accordingly, we find the appellant has met the very low
threshold of “some colorable showing of possible prejudice.” We
will provide relief in our decretal paragraph.

                             Sentence Reassessment

     As we are setting aside part of the conviction, we will
reassess the sentence in accordance with the principles set
forth in United States v. Moffeit, 63 M.J. 40, 41 (C.A.A.F.
2006), United States v. Cook, 48 M.J. 434, 438, (C.A.A.F. 1998),
and United States v. Sales, 22 M.J. 305, 307-09 (C.M.A. 1986).
We find no “‘dramatic change in the penalty landscape’ [which]
gravitates away from the ability to reassess” the sentence in
this case. United States v. Buber, 62 M.J. 476, 479 (C.A.A.F.
2006) (quoting United States v. Riley, 58 M.J. 305, 312
(C.A.A.F. 2003)). For the offenses of which the appellant was

12
     SJAR at 1 (emphasis added).
                                      19
convicted, the maximum punishment included ten years’
confinement, total forfeiture of pay and allowances, and a
dismissal. Removing Charge I from the calculation only reduces
the maximum authorized confinement to eight years. The sentence
awarded by the court-martial was limited to a dismissal, a
sentence far removed from the potential maximum.

     Additionally, the facts underlying the affirmed charges and
specifications provide ample justification for the sentence the
members awarded. The appellant, a senior naval officer, misused
his rank and position to sexually abuse a junior civil servant
in the workplace. Accordingly, we are confident that the
members would have imposed the previously adjudged sentence of a
dismissal.

                                Conclusion

     The findings as to Specification 2 of Charge I and Charge I
are set aside and that charge and specification are dismissed.
The remaining findings are affirmed. The CA’s action dated 16
January 2014 is set aside and the record of trial is returned to
the Judge Advocate General of the Navy for remand to an
appropriate CA for a new post-trial recommendation and action.13
Thereafter the record will be returned to the Court for
completion of appellate review. Boudreaux v. U.S. Navy-Marine
Corps Court of Military Review, 28 M.J. 181 (C.M.A. 1989).

     Senior Judge MCFARLANE and Judge BRUBAKER concur.


                                      For the Court



                                      R.H. TROIDL
                                      Clerk of Court




13
  The CA’s Action of 16 January 14 is incorrect in that it fails to reflect
the merger of various specifications under Charge II, as reflected in AE
LXXXII (the cleansed charge sheet). While the error is mooted by our decree,
we point this out so that any future order will not repeat the mistake.
                                     20
