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

                           No. ACM 39325
                       ________________________

                         UNITED STATES
                             Appellee
                                  v.
                        Jesse L. BRAZELL
           Staff Sergeant (E-5), U.S. Air Force, Appellant
                       ________________________

       Appeal from the United States Air Force Trial Judiciary
                      Decided 29 January 2019
                       ________________________

Military Judge: Natalie D. Richardson.
Approved sentence: Dishonorable discharge, confinement for 7 years,
forfeiture of all pay and allowances, and reduction to E-1. Sentence
adjudged 26 May 2017 by GCM convened at Eglin Air Force Base,
Florida.
For Appellant: Major Todd M. Swensen, USAF; Robert A. Feldmeier,
Esquire; Frank J. Spinner, Esquire.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major
Thomas C. Franzinger, USAF; Captain Michael T. Bunnell, USAF;
Mary Ellen Payne, Esquire.
Before HUYGEN, MINK, and POSCH, Appellate Military Judges.
Judge POSCH delivered the opinion of the court, in which Senior
Judge HUYGEN and Judge MINK joined.
                       ________________________

   This is an unpublished opinion and, as such, does not serve as
   precedent under AFCCA Rule of Practice and Procedure 18.4.
                       ________________________
                     United States v. Brazell, No. ACM 39325


POSCH, Judge:
    A general court-martial composed of officer and enlisted members found
Appellant guilty, contrary to his pleas, of two specifications of sexual assault
of a child and one specification of sexual abuse of a child, in violation of Arti-
cle 120b, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920b. The
three offenses involved Appellant’s conduct in Okinawa, Japan, with ML, a
12-year-old girl, during one evening in July 2016 when Appellant penetrated
ML’s mouth with his tongue and her vulva with his finger, and touched her
breasts and buttocks with his hands.1 Appellant was sentenced to a dishon-
orable discharge, confinement for seven years, forfeiture of all pay and allow-
ances, and reduction to the grade of E-1. The convening authority approved
the sentence as adjudged.
    Appellant raises three issues on appeal:2 (1) whether the evidence is legal-
ly and factually sufficient to support the convictions; (2) whether the military
judge committed plain error when she allowed ML’s father to testify that Ap-
pellant stated he “wanted to have sex with anything he could or f**k any-
thing with a hole in it” while visiting Japan;3 and (3) whether the military
judge committed plain error by instructing the panel members in a way that
discouraged them from questioning witnesses and replaying testimony. Find-
ing no error, we affirm the findings and sentence.

                                  I. BACKGROUND
   The Government’s case rested primarily on testimony given by ML and
her family members, including her father, JL, her stepmother, KL, and her
younger brother.
   Appellant and then-Technical Sergeant JL met in early 2010 when Appel-
lant, an 18-year-old Airman and maintenance apprentice, was assigned to


1 Appellant was acquitted of Specification 1 of the Charge, which alleged Appellant
sexually abused ML by causing ML to touch his genitalia through his clothing. This
offense allegedly happened several years earlier when Appellant lived with ML’s
family in Mississippi.
2 After filing assignments of error, Appellant petitioned for extraordinary relief in the
nature of a writ of habeas corpus, claiming his court-martial lacked subject-matter
jurisdiction because of the provisions of the Status of Forces Agreement between the
United States and Japan. We denied the petition by order of this court.
3Appellant’s assignment of error claims the military judge committed plain error
when she allowed ML’s father to testify about Appellant’s “bad general character,”
but Appellant’s brief discusses only this specific statement.




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                      United States v. Brazell, No. ACM 39325


JL’s squadron at Keesler Air Force Base, Mississippi. JL was a friend and
mentor to Appellant, and Appellant became a top performer earning recogni-
tion and promotion to the grade of senior airman (E-4) ahead of his peers. Be-
cause of his promotion, Appellant was eligible to move out of the on-base
dormitory and in 2013 moved in with JL and KL. Appellant often spent time
with ML and her brother, who lived nearby with their mother and regularly
visited their father at his home. Appellant lived with JL’s family in Missis-
sippi for at least 15 months and developed a close relationship with JL’s chil-
dren, who referred to him as “Uncle Jesse.”
    In early 2015, JL moved with KL to Okinawa, Japan, and began work as
a United States government contractor employee. ML and her brother relo-
cated to Louisiana with their mother, and Appellant was reassigned to a new
duty station. Despite these changes, JL still felt responsibility as Appellant’s
“big brother,” and they remained close friends and spoke several times a
week, if not daily. During one conversation, Appellant mentioned he wanted
to visit Japan and spend time with JL and other friends living in Okinawa.
JL saw this as an opportunity for his children to visit and offered to pay for
Appellant’s round-trip plane ticket if Appellant would escort his children on
the trip. Appellant agreed and in July 2016 Appellant accompanied 12-year-
old ML and her 11-year-old brother to visit their father and KL for two
weeks.
    When they arrived in Okinawa, the children stayed with JL and KL and
Appellant stayed with other friends. Each morning, JL and Appellant worked
out at the gym and talked about their lives and careers. JL testified to “hear-
ing things [from Appellant] that were very concerning.” Appellant explained
to JL that his promotion to the grade of E-6 had been “red-lined”4 after he
was disciplined for operating a boat under the influence of alcohol. After Ap-
pellant opened up and disclosed events in his personal life and career, JL
reached out to a mutual friend, passed on JL’s concern about changes he saw
in Appellant, and said that “we need to talk to [Appellant]” and “[w]e need to
get him under reigns [sic].”
   One morning toward the end of the trip, JL remarked that Appellant had
not spent much time with his children and invited Appellant to accompany
the family to a waterpark. Appellant went along and later joined them at a
cookout at their home. JL and Appellant drank alcoholic beverages while
they prepared food. JL testified he noticed the interaction between Appellant
and KL and disliked the “way [Appellant] was looking at” his pregnant wife.


4   “Red-line” means to remove a name from a promotion list.




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                   United States v. Brazell, No. ACM 39325


Appellant had taken off his shirt after it had become soiled and JL did not
like “the way [Appellant] was going about handling himself . . . without a
shirt on.”
    Near the end of the evening, JL and Appellant got into what JL testified
was a “heated discussion.” JL told Appellant, “I don’t like what you’re doing
here,” and got close to Appellant’s face and asked, “[W]hat’s going on?” Ac-
cording to JL, Appellant stood up to JL “like [Appellant] was the man of the
house,” which Appellant had never done in all the years JL had known him.
The two took a walk outside to “clear the air,” and JL concluded it was best to
just “back off and [defuse] the situation.” KL and the children were sitting on
the porch when they returned and KL suggested everybody should go to bed,
including Appellant.
     KL directed Appellant to sleep in an unoccupied spare bedroom, but Ap-
pellant instead went to the bedroom where the children were sleeping in a
king-size bed. Appellant laid next to ML to her left as her brother laid to her
right. With the lights off, Appellant put his right arm under ML’s head and
they played checkers on Appellant’s phone. ML testified she turned to her
right and away from Appellant to go to sleep, but Appellant pulled her by the
waist against his erect penis. According to ML, Appellant similarly had
pulled ML against his erect penis earlier at the waterpark and moved his
waist side to side in the water.5 ML testified that, while her brother slept,
Appellant put his leg over and around her, and she then used her leg to re-
move Appellant’s. Appellant tried spreading her legs apart by putting her leg
around his and she closed her legs together to stop him. ML’s brother testi-
fied he saw Appellant’s leg on top of ML before ML’s brother turned away and
fell asleep.
    ML testified as follows: as Appellant lay next to her, he turned her to face
him, kissed her on the lips, and pushed his tongue into her mouth. Appellant
moved ML to once again face toward her brother, lifted her shirt, and ran his
hand over her breasts and buttocks under her clothes. Appellant then moved
his hand between the back of her legs and inserted his finger into her vagina
and, for about five minutes, moved his finger side to side as he penetrated her
vulva. ML next remembered the light turning on in the room when her father
and stepmother checked on them before they went to sleep.
    JL testified he opened the door to the children’s bedroom, turned on the
light, and saw Appellant in bed with his children. JL noticed Appellant’s leg

5 ML did not report this conduct to anyone and Appellant was not charged with any
offense.




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                   United States v. Brazell, No. ACM 39325


was “wrapped around” ML and Appellant seemed “startled.” JL saw Appel-
lant “transition[ ] his leg off the top of [ML]” as they entered the room. Appel-
lant’s conduct struck JL as “odd,” but JL said nothing because it was “com-
mon nature” for Appellant to be “hanging out with the kids” and because he
“trusted” Appellant. KL testified she also saw Appellant’s leg “wrapped
around” ML. According to KL, Appellant “moved really quickly” when they
opened the bedroom door, but it “wasn’t a big deal” seeing Appellant in bed
with the children because Appellant and the children used to watch movies
and play guitar in Appellant’s room when Appellant lived with JL and KL in
Mississippi.
    Before JL and KL left the room, ML told them she was “really hot” and
asked if she could sleep with her father and stepmother, which would normal-
ly not happen unless ML was sick. KL testified ML “popped up” out of bed
with a “terrified look on her face that I’ve never seen.” JL testified ML
“jumped out of bed” and was “hugging on” JL before the three laid down in
the master bedroom. About five to ten minutes later, Appellant came into the
master bedroom without knocking. JL testified Appellant was in a “panicky[ ]
state” and asked, “Hey, is everything okay? Is everything good in here?” KL
testified that Appellant asked, “What’s wrong with [ML]? I heard her get up.”
JL further testified ML was unusually “clingy” throughout the night. KL fur-
ther testified ML “laid on her dad’s chest all night long and did not move,
which she has never done.”
     JL and KL both noticed changes in ML’s behavior after that evening. KL
noticed ML “wasn’t acting herself” and “looked really scared” when ML got
out of the car at the airport for the return flight home with Appellant. The
children and Appellant were met by the children’s mother when their flight
landed in New Orleans, Louisiana. The next day, ML told her mother and a
friend what Appellant did to her in Japan. ML’s mother reported her daugh-
ter’s allegations to JL and the St. Bernard Parish (Louisiana) police, who be-
gan an investigation. JL contacted Appellant’s first sergeant and the matter
was referred to the Air Force Office of Special Investigations.

                                II. DISCUSSION
A. Legal and Factual Sufficiency
    Appellant challenges the legal and factual sufficiency of the three findings
of guilty; the focus of Appellant’s assignment of error is the credibility of the
witnesses and factual sufficiency. Appellant claims ML was not a credible
witness for the following reasons: (1) when testifying as to the facts underly-
ing the specification of which Appellant was acquitted, ML was inconsistent
about whether she felt Appellant’s penis; (2) ML testified that Appellant nev-
er went to the unoccupied spare bedroom during the visit to JL’s house, but

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                   United States v. Brazell, No. ACM 39325


KL testified that Appellant initially entered the room when he first arrived;
(3) ML was inconsistent and contradicted by JL and KL as to whether Appel-
lant was on top of or under the covers of the bed on the night at issue; (4) ML
was inconsistent about whether her brother was sleeping when Appellant
touched her; and (5) at trial, “ML added a new and previously unreported act
by [Appellant] at a water park” that she had not disclosed to investigators or
trial defense counsel before trial. Appellant also challenges the credibility of
JL and JL’s son (ML’s brother). We are not persuaded by Appellant’s claims
and conclude the convictions are legally and factually sufficient.
   1. Law
    We review issues of legal and factual sufficiency de novo. Article 66(c),
UCMJ, 10 U.S.C. § 866(c); United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002) (citation omitted). Our assessment of legal and factual suffi-
ciency is limited to the evidence produced at trial. United States v. Dykes, 38
M.J. 270, 272 (C.M.A. 1993) (citations omitted). “The test for legal sufficiency
is whether, after viewing the evidence in the light most favorable to the pros-
ecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” United States v. Robinson, 77 M.J.
294, 297–98 (C.A.A.F. 2018) (quoting United States v. Rosario, 76 M.J. 114,
117 (C.A.A.F. 2017)).
     The test for factual sufficiency is “whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, [we are] convinced of the [appellant]’s guilt beyond a reasona-
ble doubt.” United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). “In con-
ducting this unique appellate role, we take ‘a fresh, impartial look at the evi-
dence,’ applying ‘neither a presumption of innocence nor a presumption of
guilt’ to ‘make [our] own independent determination as to whether the evi-
dence constitutes proof of each required element beyond a reasonable doubt.’”
United States v. Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (altera-
tion in original) (quoting Washington, 57 M.J. at 399), aff’d, 77 M.J. 289
(C.A.A.F. 2018). While we must find that the evidence was sufficient beyond
a reasonable doubt, it “does not mean that the evidence must be free of con-
flict.” Id. (citing United States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986)).
    Appellant was convicted of Specifications 2–4 in violation of Article 120b,
UCMJ. Specifications 2 and 3 alleged Appellant committed a sexual assault
upon ML, which required the Government to prove beyond a reasonable
doubt: (1) that Appellant committed a sexual act upon a child by causing pen-
etration, however slight, of the vulva of the child with his finger and the
mouth of the child with his tongue; (2) that at the time of the sexual act the
child had attained the age of 12 years but had not attained the age of 16
years; and (3) that Appellant did so with the intent to gratify his own sexual

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                  United States v. Brazell, No. ACM 39325


desire. See Manual for Courts-Martial, United States (2016 ed.) (MCM), pt.
IV, ¶ 45b.b.(3)(b). Specification 4 alleged Appellant’s sexual abuse of ML,
which required the Government to prove beyond a reasonable doubt: (1) that
Appellant committed sexual contact upon a child by touching directly the
breasts and buttocks of the child, and (2) that Appellant did so with the in-
tent to gratify his own sexual desire. See MCM, pt. IV, ¶ 45b.b.(4)(a).
   2. Analysis
    The testimony of ML provided convincing proof of each of the elements of
Specifications 2–4, to include the elements that Appellant penetrated ML’s
vulva with his finger, penetrated her mouth with his tongue, and touched her
breasts and buttocks, all with an intent to gratify Appellant’s sexual desire.
The testimony of ML’s family lends support to ML’s testimony. Appellant laid
down in the same bed with ML instead of sleeping alone in the unoccupied
room where KL told Appellant to go. Three witnesses—JL, KL, and ML’s
brother—testified that Appellant laid next to ML and saw Appellant’s leg on
top of or wrapped around ML. JL and KL both saw Appellant “quickly” move
his leg when they checked on the children. Both testified ML “jumped” or
“popped up” out of bed and slept in their bed rather than remain in bed with
Appellant. Both testified Appellant entered the master bedroom unan-
nounced to check on ML. Both observed changes in ML’s behavior after the
night in question.
    Appellant argues the evidence is legally and factually insufficient to sup-
port the convictions because neither ML, JL, nor ML’s brother were credible
witnesses. While we have the independent authority and responsibility to
weigh the credibility of the witnesses in determining factual sufficiency, we
recognize that the trial court saw and heard the testimony. See United States
v. Moss, 63 M.J. 233, 239 (C.A.A.F. 2006) (stating it is the members' role to
determine whether testimony is credible or biased). Like the factfinder at tri-
al, we weigh the evidence in the record and determine whether a discrepancy
in a witness’s testimony—including a lapse in perception, memory, or recall—
resulted from an innocent mistake or a deliberate lie. See United States v.
Goode, 54 M.J. 836, 844 (N.M. Ct. Crim. App. 2001). Additionally, the mem-
bers may “believe one part of a witness’ testimony and disbelieve another.”
United States v. Harris, 8 M.J. 52, 59 (C.M.A. 1979).
   We have reviewed the entire record of trial and conclude there were no
material discrepancies in any witness’s testimony. While the members may
have found ML was inconsistent about whether she felt Appellant’s penis




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                    United States v. Brazell, No. ACM 39325


with regard to the specification of which Appellant was acquitted,6 we discern
no meaningful conflict in ML’s testimony with regard to the three specifica-
tions of which Appellant was convicted. We have considered the discrepancies
noted by Appellant, along with biases and motives advanced by Appellant.
Testimony “need not be completely consistent to still be sufficiently reliable
to sustain a conviction, and we do not confine our analysis to merely the tes-
timony of a single witness in performing our factual sufficiency review under
Article 66, UCMJ.” United States v. McFadden, No. ACM 38597, 2015 CCA
LEXIS 520, at *11 (A.F. Ct. Crim. App. 18 Nov. 2015) (unpub. op.); see also
United States v. McElhaney, 50 M.J. 819, 832 (A.F. Ct. Crim. App. 1999)
(concluding evidence factually sufficient, in part, because the appellant’s wife
corroborated appellant’s romantic relationship with victim notwithstanding
appellant’s claim that victim’s testimony was implausible and inconsistent).
    Considering the evidence in the light most favorable to the Prosecution,
we find that a rational factfinder could have found Appellant guilty beyond a
reasonable doubt of all the elements of Specifications 2–4. Furthermore, after
weighing all the evidence in the record of trial and having made allowances
for not having personally observed the witnesses, we are convinced of Appel-
lant’s guilt beyond a reasonable doubt. Therefore, we find Appellant’s convic-
tions both legally and factually sufficient.
B. Admission of “Bad Character” Evidence
    Appellant claims the military judge committed plain error when she al-
lowed ML’s father to testify that Appellant stated he “wanted to have sex
with anything he could or f**k anything with a hole in it” while visiting Ja-
pan. The Defense did not object to this testimony or ask for a limiting or cu-
rative instruction and none was given sua sponte by the military judge. We
are not persuaded the military judge erred.
    1. Law
    A military judge’s decision to admit or exclude testimony is reviewed for
an abuse of discretion. United States v. Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010)
(citation omitted).




6 The conduct of which Appellant was acquitted was charged between on or about 1
January 2013 and on or about 31 December 2013 when ML would have been between
nine and ten years old. Proof of this allegation may have been impacted more than
proof of Specifications 2–4 by the passage of time and by fading memory and recollec-
tion.




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                   United States v. Brazell, No. ACM 39325


       [When] an appellant has not preserved an objection to evidence
       by making a timely objection, that error will be forfeited in the
       absence of plain error. A timely and specific objection is re-
       quired so that the court is notified of a possible error, and so
       has an opportunity to correct the error and obviate the need for
       appeal.
United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014) (citations omitted).
Under plain error review, an appellant has the burden of showing that there
was error, that the error was plain or obvious, and that the error materially
prejudiced a substantial right of the appellant. United States v. Girouard, 70
M.J. 5, 11 (C.A.A.F. 2011) (citation omitted).
    Military Rule of Evidence 401 establishes the standard for determining
whether evidence is relevant and states: “[e]vidence is relevant if: (a) it has
any tendency to make a fact more or less probable than it would be without
the evidence; and (b) the fact is of consequence in determining the action.”
Military Rule of Evidence 402 generally provides that “[r]elevant evidence” is
admissible unless one of four exceptions enumerated in the rule applies. Mili-
tary Rule of Evidence 403 states that relevant evidence may be excluded “if
its probative value is substantially outweighed by a danger of . . . unfair prej-
udice, confusing the issues, misleading the members, undue delay, wasting
time, or needlessly presenting cumulative evidence.” An appellant’s own
statement offered by the Government to prove the truth of the matter assert-
ed in the statement is not hearsay and may be admitted against an appellant.
Mil. R. Evid. 801(c), (d)(2)(A).
   2. Analysis
    We find Appellant has not demonstrated error. JL testified that during
the “heated discussion” with Appellant at the cookout, JL became agitated
thinking about “[t]hings that [Appellant] was speaking of in the gym over the
last week and a half.” Reflecting on their conversations, JL testified, “[a]s far
as [Appellant] coming out to Japan, he had one thing in mind.” Appellant told
JL he “wanted to have sex with anything he could or f**k anything with a
hole in it.” JL later testified that to the best of his understanding Appellant
had not engaged in any sexual encounters during the trip to Japan prior to
the offenses involving ML.
    Evidence of Appellant’s own statement of his indiscriminate desire to en-
gage in sexual intercourse in Japan and that he had been unsuccessful in do-
ing so was relevant under Mil. R. Evid. 401 to explain why Appellant would
have selected ML to satisfy his sexual desire. In this contested case, a rea-
sonable factfinder could have found that Appellant was attempting to satisfy
his sexual desires with “anything,” which by fair inference meant anyone, in-


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                      United States v. Brazell, No. ACM 39325


cluding ML. See United States v. Whitney, ACM 32807, 2000 CCA LEXIS 55,
at *5 (A.F. Ct. Crim. App. 22 Feb. 2000) (unpub. op.) (evidence that an appel-
lant told a female victim about his sex life and bragged about the number of
women he was intimate with, his sexual prowess, and the fact that some of
his conquests were wives of commanders “set the scene to explain the circum-
stances leading up to the indecent assault.”). We further find Appellant’s
statement made close in time to the offenses was not only probative to ex-
plain his actions with ML, but also relevant to show Appellant’s intent to
gratify his sexual desire. Thus, the military judge did not err when she did
not sua sponte exclude JL’s testimony about Appellant’s sexual desires and
lack of sexual activity during his trip.
    We further find the probative value under Mil. R. Evid. 403 was not out-
weighed by other considerations. Appellant claims JL’s testimony was inad-
missible evidence of “bad general character” used to demonstrate that Appel-
lant should be convicted because he acted in accordance with his character.
We are not persuaded. Appellant’s statement was more one of intent than
propensity and overtly demonstrated Appellant’s desire to engage in a sexual
act during Appellant’s visit. Trial counsel briefly referenced Appellant’s
statement in closing argument,7 but no effort was made by trial counsel to
use Appellant’s statement as evidence of propensity to commit sexual mis-
conduct or to show Appellant acted in accordance with a trait of general bad
character. See Mil. R. Evid. 404(a)(1). We conclude Appellant’s statement was
used for a valid non-propensity purpose and was not so inflammatory as to be
unfairly prejudicial. Thus, there was no error in its admission.
C. Effect of Military Judge’s Instructions
    Appellant avers that two separate instructional errors had a “chilling ef-
fect” on the members and discouraged them from carrying out their responsi-
bilities. We are not persuaded the military judge erred giving either instruc-
tion.




7   Trial counsel argued,
          [E]ven though he had a girlfriend, [Appellant told JL] his plans for
          getting laid in Japan. That was not the [Appellant] that [JL] knew
          and . . . kind of helped raise. One might dismiss [Appellant’s] com-
          ments about “f**king anything with a hole in it” if it wasn't a 100
          percent accurate prediction of what [Appellant] was going to do that
          trip.




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                    United States v. Brazell, No. ACM 39325


    1. Law
    “The question of whether a jury was properly instructed [is] a question of
law, and thus, review is de novo.” United States v. McDonald, 57 M.J. 18, 20
(C.A.A.F. 2002) (alteration in original) (citation omitted). Generally, a mili-
tary judge has “substantial discretionary power” to decide whether to issue a
jury instruction. Id. (citation omitted). The military judge is obligated to en-
sure that an appellant receives a fair trial and this obligation includes the
duty to provide appropriate legal guidance. See generally United States v.
Wolford, 62 M.J. 418, 420 (C.A.A.F. 2006) (citations omitted). We review un-
challenged instructional error for plain error. United States v. Blanks, 77
M.J. 239, 241 (C.A.A.F. 2018) (citation omitted). Under the plain error stand-
ard, “Appellant has the burden of establishing (1) error that is (2) clear or ob-
vious and (3) results in material prejudice to his substantial rights.” Knapp,
73 M.J. at 36 (citing United States v. Brooks, 64 M.J. 325, 328 (C.A.A.F.
2007)). “[T]he failure to establish any one of the prongs is fatal to a plain er-
ror claim.” United States v. Bungert, 62 M.J. 346, 348 (C.A.A.F. 2006).
    Rule for Courts-Martial (R.C.M.) 913(a) vests the military judge with dis-
cretion to “give [to the members] such preliminary instructions as may be ap-
propriate.” Article 46, UCMJ, 10 U.S.C. § 846, gives panel members the “op-
portunity to obtain witnesses and other evidence in accordance with such
regulations as the President may prescribe.” One such regulation is Mil. R.
Evid. 614(b), which allows
       members [to] examine a witness regardless of who calls the
       witness. Members must submit their questions to the military
       judge in writing. Following the opportunity for review by both
       parties, the military judge must rule on the propriety of the
       questions, and ask the questions in an acceptable form on be-
       half of the members.8
   After the members have begun deliberating on findings, the “[m]embers
may request that the court-martial be reopened and that portions of the rec-
ord be read to them . . . . The military judge may, in the exercise of discretion,
grant such request.” R.C.M. 921(b).




8This empowerment of members of a court-martial to be “active trial participants as
a matter of right is unique among federal criminal courts.” United States v. Hill, 45
M.J. 245, 248 (C.A.A.F. 1996) (citations omitted).




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                   United States v. Brazell, No. ACM 39325


   2. Analysis
    We find the military judge did not err, much less commit plain error, by
instructing the members to be cautious about revealing their thought process
in composing questions to witnesses or by informing them that their right to
replay testimony was not unfettered.
       a. Preliminary Instruction on Composing Questions
      Turning to the first allegation of instructional error, Appellant claims the
military judge erred during preliminary instructions when she told the mem-
bers to avoid revealing their thought process or deliberations when compos-
ing questions to witnesses. The military judge further advised against “writ-
ing your question in a way that is telling us something we don’t need to know
. . . that’s going through your mind.” The military judge allowed, “You can ask
a question that will get to some sort of fact, as opposed to putting in some edi-
torializing.” The Defense did not object to the instruction or request any addi-
tional instruction, and no member asked a question of a witness.
    We disagree with Appellant’s claim that there is little risk that a mem-
ber’s question would improperly reveal a member’s thought processes because
the procedures require members to put their questions in writing and each
question is examined by the military judge and counsel before it may be
asked in open court. The premise of Appellant’s argument is that a member is
at liberty to reveal his or her own thought processes to the parties and the
military judge, and it is only if it were revealed to another member that there
may be cause for concern. We are not persuaded.
    The Court of Appeals for the Armed Forces has observed that the duty of
a military judge to evaluate member questions is not merely to determine the
“propriety of the questions” and “to consider whether questions are objection-
able.” United States v. Hill, 45 M.J. 245, 248 (C.A.A.F. 1996). More compre-
hensively, the military judge must be alert to signs that the “members or any
one of them . . . departed from their required objective role as factfinders.” Id.
at 249. The responsibility is “a more holistic one -- whether ‘the overall ques-
tioning . . . creates an impression or a substantial doubt that [they] had de-
parted from [their] required character as . . . unbiased members of the
court[.]’” Id. at 249 (alterations in original) (citing United States v. Lamela, 7
M.J. 277, 280 (C.M.A. 1979)). “[I]t is imperative that members, as the triers
of fact, remain impartial and not form early opinions or prematurely jump to
de facto deliberations via their interaction with witnesses.” Id. at 248 (cita-
tions omitted).
    We find the military judge’s tailored preliminary instruction was a
prophylactic way to forestall the members from departing from their objective
role as factfinders during questioning of witnesses, and it was within her dis-


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                  United States v. Brazell, No. ACM 39325


cretion to give. The tenor of her charge was that the members use caution
when communicating their own thought processes so that they do not depart
from their unbiased, impartial role—not unlike the military judge’s instruc-
tion that “it is of vital importance that you keep an open mind until all the
evidence has been presented and the instructions have been given.” Thus,
there was no error with regard to the first instruction challenged by Appel-
lant.
       b. Clarifying Instruction on Replaying Testimony
    As to the second allegation of instructional error, Appellant claims the
military judge erred when she gave a clarifying instruction after trial defense
counsel argued to the members that the evidence included “countless incon-
sistencies” and further stated to the members that, if they had questions
about what a particular witness said, they had “every right to come back . . .
and replay any testimony that [they] want[ed].” At the close of her procedural
instructions on findings, the military judge sua sponte instructed the mem-
bers that their right to replay testimony was more circumscribed than the
Defense had stated.
       Now, regarding what the defense counsel argued about[,] you
       have a right to hear testimony back, you certainly have a right
       to request it, but I won’t entertain any request to hear testimo-
       ny back until you’ve been deliberating and you really focus on
       whatever it is that you want to hear so that you’ve discussed
       the evidence, you’ve talked, and that you can narrow whatever
       it is that you may want to hear. Then you can ask for testimony
       to be replayed. It’s not a common thing to have testimony re-
       played. It's a rare occurrence.
The Defense did not object to the instruction or request any additional in-
struction. The panel did not request the military judge to reopen the court-
martial to replay any portion of a witness’s recorded testimony.
    We find the military judge appropriately remedied the incorrect Defense
argument that the members had an unfettered right to replay testimony up-
on request. As a matter of law, the “military judge may, in the exercise of dis-
cretion, grant such request.” R.C.M. 921(b) (emphasis added). The military
judge was within her discretion to not entertain a request to replay testimony
until the members first deliberated and discussed the evidence and then fo-
cused on the testimony they wanted to hear again. Though under other cir-
cumstances it might be inappropriate to inform the members that replaying
testimony is uncommon and “a rare occurrence,” we find it was within the
military judge’s discretion to do so in this case where the Defense’s overzeal-
ous invitation may well have created the false expectation among the mem-


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                    United States v. Brazell, No. ACM 39325


bers that replaying testimony was customary or even required in order for
the members to perform their duty as the factfinder. Thus, there was no error
with regard to the second instruction challenged by Appellant, and we con-
clude there is no merit to this assignment of error.

                                 III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred.
Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the
findings and the sentence are AFFIRMED.9


                       FOR THE COURT



                       CAROL K. JOYCE
                       Clerk of the Court




9Although not raised by the parties, we note an error in the promulgating order
where the charged article is incorrectly identified as Article “120” rather than “120b.”
We direct the publication of a corrected court-martial order to remedy this error.




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