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

                           No. ACM 39136
                       ________________________

                         UNITED STATES
                             Appellee
                                  v.
                        Bradley D. HINTZ
           Staff Sergeant (E-5), U.S. Air Force, Appellant
                       ________________________

       Appeal from the United States Air Force Trial Judiciary

                       Decided 13 April 2018
                       ________________________

Military Judge: Matthew S. Ward (arraignment); Patricia A. Gruen.
Approved sentence: Dishonorable discharge, confinement for 5 years,
and reduction to E-1. Sentence adjudged 20 May 2016 by GCM convened
at Robins Air Force Base, Georgia.
For Appellant: Major Patricia Encarnación Miranda, USAF; Major An-
nie W. Morgan, USAF; Tami L. Mitchell, Esquire; David P. Sheldon,
Esquire.
For Appellee: Major Amanda L.K. Linares, USAF; Major J. Ronald Steel-
man III, USAF; Major Meredith L. Steer, USAF; Gerald R. Bruce, Es-
quire; Mary Ellen Payne, Esquire.
Before JOHNSON, MINK, and DENNIS, Appellate Military Judges.
Judge MINK delivered the opinion of the court, in which Senior Judge
JOHNSON and Judge DENNIS 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   This is an unpublished opinion and, as such, does not serve as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. Hintz, No. ACM 39136


MINK, Judge:
    A general court-martial comprised of officer members convicted Appellant,
contrary to his pleas, of one specification of attempted sexual assault on a child
and two specifications of attempted commission of a lewd act upon a child, in
violation of Article 80, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §
880. The adjudged sentence consisted of a dishonorable discharge, confinement
for five years, forfeiture of all pay and allowances, and reduction to E-1. All of
the adjudged and mandatory forfeitures were deferred until action. The con-
vening authority ultimately waived the mandatory forfeitures for a period of
six months for the benefit of Appellant’s spouse and dependent child, and ap-
proved only that portion of the sentence that included a dishonorable dis-
charge, confinement for five years, and reduction to E-1.
    On appeal, Appellant raises four assignments of error: (1) whether the mil-
itary judge abused her discretion when, over defense objection, she permitted
a lay witness to testify to the ultimate issue of Appellant’s guilt; (2) whether
Appellant’s sentence is unduly severe; (3) whether the evidence is legally and
factually sufficient to support the findings of guilty; 1 and (4) whether Appellant
is entitled to relief under United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006). 2


1This third assignment of error was raised pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982).
2 On 1 November 2017, 89 days after the Government responded to Appellant’s assign-
ments of error, Appellant sought to raise additional assignments of error before this
court. Appellant’s request was denied based on the absence of good cause for the un-
timely filing. On 1 March 2018, Appellant sought again to raise additional assignments
of error, including those he had previously raised. Appellant’s request was denied as
untimely except as to whether Appellant is entitled to relief under Moreno. In his sup-
plemental briefs, Appellant identified a total of six additional issues that we did not
accept for review by this court:
       (1) DID THE MILITARY JUDGE ABUSE HER DISCRETION
           WHEN, OVER DEFENSE OBJECTION, SHE ALLOWED SPE-
           CIAL AGENT (SA) AR TO TESTIFY ABOUT “OTHER COMMON”
           INTERNET CRIMES AGAINST CHILDREN?
       (2) DID SA AR’S TESTIMONY CONSTITUTE UNQUALIFIED, UN-
           RELIABLE “EXPERT” TESTIMONY PURSUANT TO MILITARY
           RULE OF EVIDENCE 702, AND THUS SHOULD HAVE BEEN
           EXCLUDED?


(Footnote continues on next page)



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                        United States v. Hintz, No. ACM 39136


Finding no error that materially prejudices Appellant’s substantial rights, we
affirm the findings and sentence.

                                    I. BACKGROUND
    On 28 October 2015, Appellant discovered a personal advertisement on
Craigslist 3 entitled “Y am I so bored – w4m 4 (Warner Robins).” (Footnote in-
serted). The ad read:
          Y does base have to b so boring. Looking 4 some1 to hang wit
          after school…dnt be creepy or a jerk…military a plus, if u cnt
          get on base dnt bother cuz I dnt have a car to get off…
    Appellant responded to the advertisement and began a conversation with
an individual who identified herself as a 13-year-old dependent child named
“Lisa.” Unbeknownst to Appellant, “Lisa” was in fact an agent with the Air
Force Office of Special Investigations (AFOSI), who was pretending to be “Lisa”
as part of an undercover law enforcement operation designed to catch sexual
predators targeting children. After approximately one hour of online conversa-
tion, Appellant brought up the topic of sex and asked “Lisa” if she had “[e]ver




          (3) DID TRIAL COUNSEL ENGAGED [sic] IN PROSECUTORIAL
              MISCONDUCT DURING THEIR FINDINGS CASE AND ARGU-
              MENT?
          (4) DID THE CUMULATIVE EFFECT OF THE ERRORS SUBSTAN-
              TIALLY IMPAIRED [sic] THE FAIRNESS OF APPELLANT’S
              TRIAL?
          (5) DID THIS COURT DENY APPELLANT EFFECTIVE ASSIS-
              TANCE OF COUNSEL WHEN IT DENIED APPELLANT’S NO-
              VEMBER 2017 SUPPLEMENTAL FILING?
          (6) WHETHER TRIAL DEFENSE COUNSEL WERE INEFFECTIVE
              FOR FAILING TO CALL APPELLANT’S BROTHER, MR. AH, AS
              A WITNESS TO TESTIFY IN PERSON ON THE MERITS AND
              SENTENCING?
The sixth additional issue was raised pursuant to Grostefon, 12 M.J. 431 (C.M.A. 1982),
and although we did not accept Appellant’s submission of these alleged errors or his
supplemental briefs addressing each, we carefully considered each issue in the course
of our review pursuant to Article 66(c), UCMJ, 10 U.S.C. § 866(c), and found no error
that materially prejudiced Appellant’s substantial rights.
3   Craigslist is a website that hosts classified advertisements and discussion forums.
4   The acronym “w4m” stands for “women for men.”

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                    United States v. Hintz, No. ACM 39136


had sex?” The two exchanged a few more messages and then ceased communi-
cation the following day after “Lisa” did not respond to two messages sent by
Appellant.
    On 16 November 2015, Appellant responded to another personal advertise-
ment on Craigslist and almost immediately recognized that he was communi-
cating with the same “Lisa” from a few weeks prior. The AFOSI special agent
pretending to be “Lisa” again told Appellant that she was 13 years old. At Ap-
pellant’s request, he and “Lisa” switched to Yahoo! Messenger and their email
and text discussions continued for eight days. During this period, Appellant
repeatedly asked “Lisa” to send him photographs of herself and requested to
meet her in person. Appellant’s electronic communications included a variety
of sexual terms and language to describe—in graphic detail—the sexual acts
that he wanted to perform on “Lisa” and that he wanted her to perform on him,
as well as his desire to see her have an orgasm. Since “Lisa” told him she was
a virgin, Appellant sought to inform her—again in graphic detail—how she
should masturbate to prepare for their planned sexual encounter.
    Around mid-day on 24 November 2015, when “Lisa’s” parents would not be
at home, Appellant and “Lisa” planned to rendezvous at a house, purported to
be “Lisa’s,” on Robins Air Force Base (AFB) so they could have sex. As he ap-
proached the back door of the home, Appellant was apprehended by AFOSI
agents, at which time Appellant stated, “I f**ked up.”

                                II. DISCUSSION
A. Lay Witness Testimony
    AFOSI Special Agent (SA) AR was the primary individual who pretended
to be “Lisa” and communicated with Appellant. SA AR testified as to how the
AFOSI operation was conducted, about his email and text communications
with Appellant, and about the apprehension of Appellant. Appellant asserts
that the military judge abused her discretion by permitting SA AR to testify as
to how others responded to “Lisa” online, that Appellant was a predator, that
Appellant intended to have sex with a 13-year-old child, and that Appellant
was not “innocent.” We agree the military judge abused her discretion in al-
lowing these portions of SA AR’s testimony, but we find that the admission of
these portions of testimony was harmless error.
   1. Law
    We review a military judge’s decision to admit evidence for an abuse of dis-
cretion. United States v. Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010) (citing United
States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000)). “The abuse of discretion
standard is a strict one, calling for more than a mere difference of opinion. The

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                    United States v. Hintz, No. ACM 39136


challenged action must be ‘arbitrary, fanciful, clearly unreasonable, or clearly
erroneous.’” United States v. White, 69 M.J. 236, 239 (C.A.A.F. 2010) (quoting
United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F. 2010)).
    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 “relevant evidence” is admissible
unless one of four exceptions enumerated in the Rule applies. Military Rule of
Evidence 403 states that relevant evidence may be excluded “if its probative
value is substantially outweighed by a danger of . . . unfair prejudice, confus-
ing the issues, misleading the members, undue delay, wasting time, or need-
lessly presenting cumulative evidence.”
    “When a military judge conducts a proper balancing test under Mil. R. Evid.
403, the ruling will not be overturned unless there is a clear abuse of discre-
tion.” United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000) (internal quo-
tation marks and citation omitted). A reviewing court “gives military judges
less deference if they fail to articulate their balancing test on the record, and
no deference if they fail to conduct” any balancing test at all under Mil R. Evid.
403. Id.
    Military Rule of Evidence 701 specifies that lay witness opinion testimony
must be: “(a) rationally based on the witness’s perception; (b) helpful to clearly
understanding the witness’s testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the
scope of Mil. R. Evid. 702,” which discusses expert witness testimony. “When
‘facially coherent communications’ are at issue, no lay interpretation will be
helpful or admissible, unless the proponent ‘establish[es] a foundation that
call[s] into question the apparent coherence of the conversation so that it no
longer seem[s] clear, coherent, or legitimate.’” United States v. Lopez, 76 M.J.
151, 156 (C.A.A.F. 2017) (alteration in original) (quoting United States v. Byrd,
60 M.J. 4, 7 (C.A.A.F. 2004)).
   2. Analysis
   During the trial counsel’s direct examination of SA AR, the following ex-
change occurred between the trial counsel, the senior defense counsel, and the
military judge, leading to this portion of SA AR’s testimony:
       TC [Trial Counsel]: What are the responses typically like when
       Lisa says that she is 13?




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                    United States v. Hintz, No. ACM 39136


       SDC [Senior Defense Counsel]: Objection, Your Honor. Rele-
       vance and this is impermissible to relate this to anything about
       [Appellant’s] case.
       TC: Your Honor, the agent is just talking generally about the
       operation before we move into this particular investigation.
       SDC: Your Honor, it relates to trying to get the members to com-
       pare [Appellant] to other people which is impermissible and ir-
       relevant. It’s just to prejudice his character compared to other
       people. It doesn’t matter to this case or to the members what
       other people did.
       MJ [Military Judge]: I think it goes to foundation, so I’m going
       to overrule your objection. You can continue.
       TC: [SA AR], I’ll repeat the question. What’s the typical response
       when Lisa says she’s 13?
       WIT [Witness]: Generally, as I stated, we get, on average, 30 re-
       sponses per advertisement. The general responses vary from we
       just don’t get a reply – once the age is introduced the person just
       stops talking to us altogether – many other people just berate us
       for being online and inform us that the internet is a dangerous
       place, we shouldn’t be here, and they hope that we don’t get hurt
       – and other individuals outright, after berating us, inform us
       that they are going to flag our post for removal to try and to pro-
       tect us and tell us that we shouldn’t be online.
    As he did at trial, Appellant asserts on appeal that SA AR’s testimony as
to how others responded to “Lisa” once she disclosed she was 13 years old was
prejudicial to Appellant and not otherwise relevant. In overruling the objection
by trial defense counsel to this testimony, the military judge summarily stated
that she believed the information went to “foundation.” The military judge did
not explain her analysis or conduct a Mil. R. Evid. 403 balancing test. Conse-
quently, we are unable to surmise to what “foundation” the military judge was
referring. Any relevance this information might have had to a fact in issue is
suspect at best, and its potential prejudice by allowing a comparison of Appel-
lant’s actions to the actions of others is also apparent. As noted above, in the
absence of a Mil. R. Evid. 403 balancing test, we give the military judge’s ruling
no deference and we decide the issue de novo. See Manns, 54 M.J. at 166. We
find that if this evidence was at all relevant, any probative value was substan-
tially outweighed by the danger of unfair prejudice. Thus, in allowing this tes-
timony, the military judge abused her discretion.



                                        6
                    United States v. Hintz, No. ACM 39136


    Later, during the trial counsel’s re-direct examination of SA AR, the follow-
ing exchange occurred:
       TC: Again, based on your training in identifying child predators,
       what are the things that [Appellant] said that let you know he
       believed Lisa to be 13?
       SDC: Objection, Your Honor. Impermissible.
       MJ: Impermissible on what basis?
       SDC: Speculating about [Appellant’s] state of mind. He’s not a
       lie detector or –
       MJ: I understand. Re-ask your question.
       TC: Based on your training and how you are taught to identify
       child predators, what were the things [Appellant] said that
       alerted you to know that he in fact was looking for sex with Lisa?
       MJ: Okay. Your objection is overruled.
       WIT: Okay, ma’am. I’m sorry. Can you just one more time?
       TC: So based on the training that you went to that was designed
       to alert you to child predators, what were the things that [Ap-
       pellant] was saying to you that let your [sic] know in fact this
       was someone looking for sex online?
       SDC: Your Honor, I object again based on the characterization
       of child predators. They are trying to identify [Appellant] as a
       child predator.
       MJ: That’s the theme of their case, so on that basis it’s overruled.
       WIT: So generally, whenever we have interactions with individ-
       uals online, like I stated before, we allow them to steer the con-
       versation, so however they naturally want to take the conversa-
       tion is what we allow, and then we are receptive to whichever
       direction they want to go.
       Generally, as I stated before, most individuals would immedi-
       ately decline conversing with a 13-year-old child. However, in
       this case with [Appellant], he continued to have a conversation
       with a 13-year-old child. Further, he took that opportunity to
       bring up the topic of sex with a 13-year-old child. That’s pretty
       indicative of an individual that would like to have sex with a 13-
       year-old child.



                                        7
                    United States v. Hintz, No. ACM 39136


       Further, he introduced the idea of the two having sex together
       and inquired about her sexual experiences and described differ-
       ent methods of sexual acts he want to perform onto her and have
       her perform onto him and the two do together. So, based on
       those, that would identify to me that he is different than an oth-
       erwise innocent person that would not communicate with a 13-
       year-old individual, and that would not pursue a sexual relation-
       ship with a 13-year-old, and would not attempt to have sex with
       a 13-year-old versus the case here where he did.
    We agree with Appellant that SA AR’s testimony as to how others re-
sponded to “Lisa” online, suggesting Appellant was a predator, that Appellant
intended to have sex with a 13-year-old child, and particularly that Appellant
was not “innocent,” was erroneously admitted by the military judge.
    Both Appellant and the Government agree that SA AR was not qualified or
offered as an expert witness during Appellant’s trial. Thus, SA AR could only
testify as a lay witness and any opinion testimony SA AR could offer the court
was limited under the provisions of Mil. R. Evid. 701. See United States v. Nor-
man, 74 M.J. 144, 148–49 (C.A.A.F. 2015). However, the testimony sought from
SA AR was premised on SA AR’s “training in identifying child predators.” The
trial defense counsel’s objection to the use of the term “child predator” because
it characterized Appellant as such, was essentially an objection on the grounds
of relevance and unfair prejudice. The military judge overruled the objection
based on the fact that the theme of the Government’s case was that Appellant
was a child predator, but with no further explanation and without conducting
a balancing test under Mil. R. Evid. 403. Whether Appellant was a child pred-
ator was not relevant to establish Appellant’s guilt to the charged offenses and
allowing the Government to characterize Appellant in such a way could be un-
fairly prejudicial in the findings portion of the trial. After the military judge
overruled the objection, SA AR was permitted—in the guise of a lay opinion
based on his “training”—to testify as to how Appellant behaved like a child
predator, that Appellant had the intent to have sex with a 13-year-old child,
and that Appellant did not act like an “innocent” person would under the cir-
cumstances, in addition to again stating how Appellant’s actions differed from
others who responded to the advertisement.
    Interestingly, appellate government counsel argues in their brief that
“[c]ommon sense and knowledge of the ways of the world would lead a reason-
able person to conclude that when a grown man, when chatting with what he
believes to be a 13 year old girl, brings up the topic of sex, introduces the idea
of the two having sex together, inquires about past sexual experiences, and
describes different methods of sexual acts that he wants to perform on her and
vice versa, he is looking for sex with his chat partner.” Yet, the trial counsel
                                        8
                     United States v. Hintz, No. ACM 39136


sought to have SA AR testify on this very issue, giving the imprimatur that a
trained law enforcement officer concluded the same thing. Such testimony by
a lay witness regarding these “facially coherent communications” was im-
proper. There was no suggestion by the Government that the communications
between Appellant and SA AR regarding Appellant’s sexual interest were not
clear or coherent. 5 The trial counsel simply sought to have SA AR interpret
what Appellant was stating in his electronic communications with SA AR. This
was improper and the military judge abused her discretion by allowing such
testimony.
    In addition, SA AR’s testimony that Appellant was “different than an oth-
erwise innocent person” went directly to the issue of whether Appellant was
guilty, invaded the province of the jury, and thus was clearly improper. The
fact that trial defense counsel neither objected again during or after SA AR’s
testimony, nor the fact that the trial defense counsel requested no instruction
from the military judge to address the error did not relieve the military judge
of her responsibility to sua sponte address such obviously improper evidence—
particularly when the testimony was given in response to a question that had
been the subject of an objection from the trial defense counsel.
   Having found that the military judge abused her discretion in admitting
the above portions of SA AR’s testimony, we now consider whether such error
was prejudicial to Appellant.
    Whether an error was harmless is reviewed de novo. United States v. Nor-
man, 74 M.J. 144, 150 (C.A.A.F. 2015) (citing United States v. Hall, 66 M.J. 53,
54 (C.A.A.F. 2008)). “For nonconstitutional errors, the Government must
demonstrate that the error did not have a substantial influence on the find-
ings.” Id. (quoting Hall, 66 M.J. at 54). We determine whether prejudice re-
sulted from an erroneous evidentiary ruling by weighing: (1) the strength of
the Government’s case; (2) the strength of the defense case; (3) the materiality
of evidence in question; and (4) the quality of the evidence in question. Id.
    In applying the first of the four factors, we note that without the errone-
ously admitted testimony from SA AR, the Government’s case against Appel-
lant was very strong. During Appellant’s trial, SA AR testified about his con-
versations with Appellant by email and text while SA AR was posing as a 13-
year-old child. SA AR also testified about apprehending Appellant as he ap-
proached the back door of the on-base residence where Appellant had arranged
to meet “Lisa” when Appellant believed her parents were not at home. A video-


5By comparison, SA AR did provide helpful testimony by explaining certain acronyms
used during the online chats, such as that “HMU” means “hit me up” to request a later
contact or communication.

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                      United States v. Hintz, No. ACM 39136


recording of Appellant’s apprehension by AFOSI agents was also introduced
into evidence. SA AR testified that after being apprehended, Appellant stated
something to the effect of, “I f**ked up.” The documentary evidence included
screen captures of two Craigslist posts and dozens of pages of email communi-
cation transcripts between Appellant and SA AR, including sexually graphic
language by Appellant stating his sexual intentions and desires regarding
“Lisa.” An expert computer forensics examiner employed by the Department of
Defense Computer Forensics Lab (DCFL) testified regarding the review he con-
ducted of Appellant’s cellular phone and the electronic communications he lo-
cated on the phone between Appellant and SA AR. The DCFL examiner also
testified regarding his report, which included information he discovered on Ap-
pellant’s phone indicating that Appellant used Google Maps 6 to locate the ad-
dress where Appellant attempted to meet “Lisa” and was subsequently appre-
hended.
    Looking at the second factor, we determined the defense case focused pri-
marily on whether Appellant actually believed “Lisa” was a 13-year-old girl, a
comparatively weak case in light of the extensive transcripts and Appellant’s
“I f**ked up” comment made during his apprehension.
    In applying the third factor, we find that the objectionable portion of SA
AR’s testimony was not material to the Government’s overall case in establish-
ing Appellant’s guilt of the charged offenses. Despite SA AR’s status as a
trained investigator, the nature and extent of the admissible evidence availa-
ble for consideration by the court-members, including the transcript of Appel-
lant’s communications with “Lisa,” eliminated any materiality that the objec-
tionable portion of SA AR’s testimony may have had.
    Lastly, while the quality of SA AR’s testimony was significant in view of
the fact that he was the Government’s primary witness, the objectionable por-
tion of his testimony was neither relied upon nor quoted by trial counsel during
findings argument, except for a brief comparison of Appellant’s response to be-
ing told “Lisa” was 13 years old with the responses of others. Instead, trial
counsel’s argument focused on Appellant’s specific communications and ac-
tions in this case. We conclude that the first three factors weigh significantly
in favor of the Government and outweigh the fourth factor. Accordingly, we
find that the admission of the objectionable portions of SA AR’s testimony by
the military judge was harmless error.




6   Google Maps is an Internet web-mapping service.

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                    United States v. Hintz, No. ACM 39136


B. Sentence Appropriateness
   Appellant claims that his sentence to five years of confinement is unduly
severe when compared to sentences in other cases he describes as having
“nearly identical fact patterns” to his case. We are not persuaded.
   1. Law
    We review issues of sentence appropriateness de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006) (citing United States v. Cole, 31 M.J. 270,
272 (C.M.A. 1990)). “Congress has vested responsibility for determining sen-
tence appropriateness in the Courts of Criminal Appeals.” United States v. Wa-
cha, 55 M.J. 266, 268 (C.A.A.F. 2001). This power “reflects the unique history
and attributes of the military justice system, [and] includes but is not limited
to considerations of uniformity and evenhandedness of sentencing decisions.”
Id. (quoting United States v Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001)).
    Accordingly, we may affirm only as much of the sentence as we find correct
in law and fact and determine should be approved on the basis of the entire
record. Article 66(c), UCMJ, 10 U.S.C. § 866(c). “We assess sentence appropri-
ateness by considering the particular appellant, the nature and seriousness of
the offense[s], the appellant’s record of service, and all matters contained in
the record of trial.” United States v. Sauk, 74 M.J. 594, 606 (A.F. Ct. Crim. App.
2015) (alteration in the original) (quoting United States v. Anderson, 67 M.J.
703, 705 (A.F. Ct. Crim. App. 2009)). Although we have great discretion to de-
termine whether a sentence is appropriate, we have no power to grant mercy.
United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
    When arguing sentence disparity and asking us to compare his sentence
with the sentences of others, Appellant bears the burden of demonstrating
those other cases are “closely related” to his, and if so, that the sentences are
“highly disparate.” United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999). The
United States Court of Appeals for the Armed Forces has indicated cases are
“closely related” if there is a “direct nexus between servicemembers whose sen-
tences are sought to be compared,” for example, involvement in a common
crime or parallel schemes. Id. If an appellant carries that burden, then the
Government must show a rational basis for the sentence differences. Id.
   2. Analysis
    Appellant fails to demonstrate how the cases mentioned in his brief are
“closely related” to his case. While the fact patterns may be similar, Appellant
was not a “co-actor involved in a common crime, involved with other service-
members in a common or parallel scheme,” nor did there exist a “direct nexus”
between Appellant or any other servicemember whose sentence Appellant is
inviting us to compare to his own. Id. Thus, we decline to compare Appellant’s

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                    United States v. Hintz, No. ACM 39136


sentence with other such cases. Although the cases cited by Appellant are not
“closely related” to Appellant’s, we recognize that we may compare these cases
to consider the propriety of Appellant’s sentence, although we are not required
to do so. See Wacha, 55 M.J. at 267; see also Lacey, 50 M.J. at 288. However,
unless the cases are closely related, “[t]he appropriateness of a sentence gen-
erally should be determined without reference or comparison to sentences in
other cases.” United States v. LeBlanc, 74 M.J. 650, 659 (A.F. Ct. Crim. App.
2015) (en banc) (citing United States v. Ballard, 20 M.J. 282, 283 (C.M.A.
1985)).
    For purposes of sentencing, the military judge merged the two specifica-
tions of attempted commission of a lewd act upon a child. Based on the offenses
of which he was convicted, Appellant still faced the possibility of confinement
for 35 years. The court members, having found Appellant guilty of the offenses
and having reviewed all of the evidence, determined a sentence including five
years of confinement was appropriate. Appellant’s offenses are serious and his
sentence, which included confinement of 30 years less than the maximum au-
thorized, is correct in law and fact. Having given individualized consideration
to Appellant, the nature and seriousness of the offenses, Appellant’s record of
service, and all other matters contained in the record of trial, we conclude that
the sentence is not inappropriately severe.
C. Legal and Factual Sufficiency
   Appellant asserts that his convictions are legally and factually insufficient.
We disagree.
   1. Law
    We review issues of factual and legal sufficiency de novo. Article 66(c),
UCMJ; United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). Our
assessment of legal and factual sufficiency is limited to the evidence produced
at trial. United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993) (citations omit-
ted). The test for legal sufficiency of the evidence is “whether, considering the
evidence in the light most favorable to the prosecution, a reasonable factfinder
could have found all the essential elements beyond a reasonable doubt.” United
States v. Turner, 25 M.J. 324 (C.M.A. 1987) (citing Jackson v. Virginia, 443
U.S. 307, 319 (1979)); see also United States v. Humpherys, 57 M.J. 83, 94
(C.A.A.F. 2002) (quoting Turner, 25 M.J. at 324)). The term “beyond a reason-
able doubt” does not mean that the evidence must be “free from conflict.”
United States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986) (citation omitted).
“[I]n resolving questions of legal sufficiency, we are bound to draw every rea-
sonable inference from the evidence of record in favor of the prosecution.”
United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citations omitted).


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                    United States v. Hintz, No. ACM 39136


    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 reasonable
doubt.” Turner, 25 M.J. at 325. In conducting this unique appellate role, we
take “a fresh, impartial look at the evidence,” applying “neither a presumption
of innocence nor a presumption of guilt” to “make [our] own independent de-
termination as to whether the evidence constitutes proof of each required ele-
ment beyond a reasonable doubt.” Washington, 57 M.J. at 399.
   2. Analysis
    The evidence introduced by the Government at trial to establish Appel-
lant’s guilt of the charged offenses is discussed more fully above. Viewing that
evidence, including the testimony of SA AR (exclusive of the objectionable por-
tions of his testimony) and the DCFL examiner, the transcript of email com-
munications between Appellant and the person he had been told was a 13-year-
old child, the DCFL report containing text messages between Appellant and
“Lisa,” the Google Maps location of “Lisa’s” purported residence, and the state-
ment of Appellant demonstrating consciousness of guilt when he was appre-
hended, in the light most favorable to the Government, we find that the court
members could have found Appellant guilty of all of the essential elements of
the charged offenses beyond a reasonable doubt. Moreover, we are convinced
beyond a reasonable doubt that Appellant attempted to sexually assault a child
and attempted to commit lewd acts upon a child. Thus, we conclude Appellant’s
convictions are legally and factually sufficient.
D. Delayed Appellate Review
    Appellant’s case was docketed with this court on 7 September 2016, more
than 18 months before a decision was rendered. In Moreno, our superior court
established a presumption of facially unreasonable delay when a service Court
of Criminal Appeals does not take action within 18 months of docketing. 63
M.J. 129, 142 (C.A.A.F. 2006).
    Because there is a facially unreasonable delay in Appellant’s case, we ex-
amine the four factors set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972):
(1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s
assertion of his right to a timely review; and (4) prejudice to the appellant.
Moreno, 63 M.J. at 135 (citations omitted). “No single factor is required for
finding a due process violation and the absence of a given factor will not pre-
vent such a finding.” Id. at 136 (citing Barker, 407 U.S. at 533). However,
where an appellant has not shown prejudice from the delay, there is no due
process violation unless the delay is so egregious as to “adversely affect the
public’s perception of the fairness and integrity of the military justice system.”
United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006).
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                     United States v. Hintz, No. ACM 39136


    Moreno identified three types of prejudice arising from post-trial processing
delay: (1) oppressive incarceration; (2) anxiety and concern; and (3) impair-
ment of the appellant’s ability to present a defense at a rehearing. 63 M.J. at
138–41 (citations omitted). Where, as here, an appellant does not prevail on
the substantive grounds of his appeal, there is no oppressive incarceration. Id.
at 139 (citing Cody v. Henderson, 936 F.2d 715, 720 (2d Cir. 1991)). Similarly,
where Appellant’s substantive appeal fails, his ability to present a defense at
a rehearing is not impaired. Id. at 140–41. Furthermore, we do not find any
“particularized anxiety or concern that is distinguishable from the normal anx-
iety experienced by [appellants] awaiting an appellate decision.” Id. at 140.
Accordingly, Appellant has not demonstrated prejudice. In addition, the delay
exceeded the Moreno standard by slightly more than one month, and we do not
find the delay so egregious as to “adversely affect the public’s perception of the
fairness and integrity of the military justice system.” Toohey, 63 M.J. at 362.
Accordingly, we do not find a violation of Appellant’s due process right to timely
post-trial processing and appeal.
   Recognizing our authority under Article 66(c), UCMJ, we have also consid-
ered whether relief for excessive post-trial delay is appropriate in this case
even in the absence of a due process violation. See United States v. Tardif, 57
M.J. 219, 225 (C.A.A.F. 2002). After considering the factors enumerated in
Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F.
2016), 7 we conclude it is not.

                                 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).




7 These factors include: (1) how long the delay exceeded the standards set forth in
Moreno; (2) what reasons, if any, the Government set forth for the delay, and whether
there is any evidence of bad faith or gross indifference to the overall post-trial pro-
cessing of this case; (3) whether there is evidence of harm to the appellant or institu-
tionally caused by the delay; (4) whether the delay has lessened the disciplinary effect
of any particular aspect of the sentence, and whether relief is consistent with the dual
goals of justice and good order and discipline; (5) whether there is any evidence of in-
stitutional neglect concerning timely post-trial processing; and (6) given the passage
of time, whether this court can provide meaningful relief in this particular situation.

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              United States v. Hintz, No. ACM 39136


Accordingly, the findings and sentence are AFFIRMED.



            FOR THE COURT



            CAROL K. JOYCE
            Clerk of the Court




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