          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                        UNITED STATES

                                                    v.

                        Senior Airman DAMARIO A. COLEMAN
                                 United States Air Force

                                             ACM 38287

                                             29 July 2014

         Sentence adjudged 29 September 2012 by GCM convened at Minot
         Air Force Base, North Dakota. Military Judge: Matthew D. Van Dalen.

         Approved Sentence: Dishonorable discharge, confinement for 12 years,
         forfeiture of all pay and allowances, and reduction to E-1.

         Appellate Counsel for the Appellant: Major Zaven T. Saroyan.

         Appellate Counsel for the United States: Colonel Don M. Christensen;
         Lieutenant Colonel Christopher T. Smith; Captain Thomas J. Alford; and
         Gerald R. Bruce, Esquire.

                                                 Before

                             ALLRED, MITCHELL, and WEBER
                                 Appellate Military Judges

                                   OPINION OF THE COURT

                   This opinion is subject to editorial correction before final release.



WEBER, Judge:

       A panel of officer members at a general court-martial convicted the appellant,
contrary to his pleas, of sexual misconduct toward two women. The members convicted
the appellant of raping a woman (TF) at or near Minot, North Dakota, in December 2011,
and of the following acts upon a second woman (KR) at or near Macon, Georgia, three
months earlier: aggravated sexual assault (three specifications involving digital
penetration of her vagina and anus, and pulling her head so that her mouth came into
contact with his penis) and forcible sodomy. The offenses of which the appellant was
convicted represent violations of Articles 120 and 125, UCMJ, 10 U.S.C. §§ 920, 925.
The adjudged and approved sentence consisted of a dishonorable discharge, confinement
for 12 years, forfeiture of all pay and allowances, and reduction to the grade of E-1.

        The appellant raises four issues on appeal: (1) whether Mil. R. Evid. 413 is
unconstitutional as instructed upon in his court-martial; (2) whether the military judge
erred by allowing one piece of DNA evidence to be used to corroborate the appellant’s
statement regarding multiple charged sexual acts toward KR; (3) whether the record of
trial is substantially incomplete because the first 30 paragraphs of the staff judge
advocate’s pretrial advice are missing; and (4) whether the appellant is entitled to relief
because the convening authority did not take action until 154 days after the completion of
trial. Finding no error materially prejudicial to a substantial right of the appellant, we
affirm.

                                       Background

       The appellant sexually assaulted two civilian women in separate incidents three
months apart. On 4 September 2011, the appellant was in Macon, Georgia, on leave. He
was driving back from a club with his sister when they saw a woman (KR) trying to steer
to the shoulder of the interstate because her car was badly damaged. The appellant
stopped the car, checked on KR, and eventually offered to drive her home. The
appellant’s sister observed that KR was nonresponsive when asked questions, and in a
statement to law enforcement officials she described KR’s condition as generally
nonresponsive. After dropping off his sister at home, the appellant drove KR to a
run-down residential area where he parked the car in front of an abandoned house.
There, the appellant and KR performed oral sex on each other, and the appellant digitally
penetrated KR’s vagina and anus. Soon after the sexual acts, KR exited the vehicle and
asked a passerby to call 911. KR reported that she did not know how she ended up in
front of the abandoned house with the appellant, and that she awoke to the appellant
forcing her head down onto his penis.

       Three months later, TF was walking around the city of Minot, North Dakota, after
an argument with her roommates. The appellant pulled up to her in his car and instructed
her to get in. He then drove her to the outskirts of town, where he asked her to perform a
sex act upon him. When she declined, he moved over to the passenger seat on top of her,
raised her legs in the air, and engaged in vaginal intercourse before ejaculating on her
clothes and demanding that she leave the car. TF promptly called 911 and reported that
she had been raped. A rape kit and subsequent DNA analysis revealed the presence of
the appellant’s sperm on TF’s coat, consistent with her account.

        Macon police initially investigated the incident with KR in September. A police
officer interviewed the appellant. The appellant admitted to engaging in oral sex and
digital penetration of KR’s vagina and anus, but he maintained the acts were consensual.



                                             2                                   ACM 38287
A rape kit and subsequent DNA analysis revealed skin cells consistent with the
appellant’s DNA profile were contained in vaginal-cervical and rectal swabs from KR.

       After the Minot incident, Air Force officials requested and received jurisdiction
over both matters. Investigative agents interviewed the appellant pursuant to a rights
advisement. As before, the appellant admitted to the sexual acts with KR in Macon but
insisted the events were consensual. He initially denied ever picking up a woman in his
car in Minot, but when confronted he admitted he picked up TF and took her to the
outskirts of town. He eventually admitted to penetrating her vagina with his penis. He
also admitted she repeatedly told him no or to stop, including while he was on top of her.
When agents returned to the incident with KR, the appellant still largely maintained the
encounter was consensual. He did admit that KR was sufficiently drunk that she
“probably” and “most likely” could not have consented to any sexual activity.

       Further relevant facts are detailed for each assignment of error below.

                           Constitutionality of Mil. R. Evid. 413

       The military judge issued standard instructions that allowed the members to
consider the alleged sexual assault concerning one woman in considering whether the
appellant demonstrated the propensity to engage in sexual assault, and therefore whether
this was relevant in determining that he committed sexual assault involving the other
woman. The military judge also instructed the members that they could not convict the
appellant solely on propensity evidence and the burden of proof as to each element
always remained with the Government. The military judge also provided a “spillover”
instruction, informing the members that proof of one offense carries no inference that the
appellant was guilty of any other offense.

       The appellant asserts what he frames as an “as applied” challenge to the
constitutionality of Mil. R. Evid. 413, asserting that it is unconstitutional as instructed in
his case. He asserts that the military judge’s instructions create the danger of improper
“looping” by creating a possibility the members might use one offense for which a
preponderance of the evidence exists in order to convict the appellant of a second
offense, and then use evidence of that second offense to convict the appellant of the first
offense.

       We review both the constitutionality of a rule and the question of whether
members were properly instructed de novo. United States v. Wright, 53 M.J. 476, 478
(C.A.A.F. 2000); United States v. Schroder, 65 M.J. 49, 54 (C.A.A.F. 2007). When an
appellant first challenges the constitutionality of a statute as applied on appeal, the matter
is generally considered to be forfeited and reviewed under a plain error standard.
United States v. Goings, 72 M.J. 202, 205 (C.A.A.F. 2013). Upon plain error review, to
prove that Mil. R. Evid. 413 is unconstitutional as applied, an appellant “must point to


                                              3                                    ACM 38287
particular facts in the record that plainly demonstrate why his interests should overcome
Congress’ and the President’s determinations that his conduct be proscribed.” Id. (citing
United States v. Vazquez, 72 M.J. 13, 16-21 (C.A.A.F. 2013); United States v. Ali,
71 M.J. 256, 266 (C.A.A.F. 2012)).

        Mil. R. Evid. 413(a) provides that “[i]n a court-martial in which the accused is
charged with an offense of sexual assault, evidence of the accused’s commission of one
or more offenses of sexual assault is admissible and may be considered for its bearing on
any matter to which it is relevant.” One purpose for which this evidence may be admitted
is to demonstrate an accused’s propensity to commit the charged offenses. United States
v. Parker, 59 M.J. 195, 198 (C.A.A.F. 2003). Our superior court has held that the Rule
does not violate due process or equal protection principles under the Constitution.
Wright, 53 M.J. at 483.

       The appellant did not challenge the constitutionality of the military judge’s
instructions at trial, and we decline the appellant’s invitation to speculate about his
asserted possible dangers of Mil. R. Evid. 413. While he frames this issue as an “as
applied” challenge to the Rule, the military judge’s instructions were fully in line with the
Rule’s permission to use evidence of commission of one sexual assault offense to prove
propensity to engage in other such offenses. Therefore, the appellant is really asserting
that the Rule is unconstitutional on its face. Our superior court has already determined
the Rule is constitutional both on its face and as applied in that case, and the appellant
raises no new concern our superior court has not already addressed. In addition, the
military judge’s instructions fully advised the members that the burden of proof for every
element of every offense remained with the Government and the members could not
convict the appellant based on propensity evidence alone. These instructions are fully in
line with our superior court’s guidance. See Schroder, 65 M.J. at 56 (holding such
instructions are warranted in the case of Mil. R. Evid. 414 propensity evidence). We find
no reason to analyze this issue further.

                             DNA Evidence as Corroboration

       The appellant challenges the military judge’s decision to admit the appellant’s
confession regarding KR. He asserts the confession was not corroborated in regard to the
multiple charged offenses of aggravated sexual assault upon KR because the
Government’s corroboration consisted of DNA evidence of unidentified skin cells found
in KR’s vaginal-cervical and rectal swabs. He asserts that such evidence cannot logically
corroborate the appellant’s statements regarding oral intercourse, digital penetration of
the vagina, and digital penetration of the anus because the skin cells could have come
from anywhere on the appellant’s body. Therefore, he asserts, the military judge should
have either found that the DNA evidence corroborated no part of the appellant’s
confession (on the theory that the corroborative evidence was too speculative) or at most
one aspect of his confession.


                                              4                                    ACM 38287
       Mil. R. Evid. 304(g) provides that an admission by the appellant may only be
considered as evidence against him if independent evidence has been introduced that
corroborates the essential facts. The standard for corroboration is “very low,”
United States v. Seay, 60 M.J. 73, 80 (C.A.A.F. 2004), and the quantum of corroborating
evidence may be “very slight.” United States v. Melvin, 26 M.J. 145, 146 (C.M.A. 1988).
This very slight “corroborating evidence need not confirm each element of an offense,
but rather must ‘corroborate[ ] the essential facts admitted to justify sufficiently an
inference of their truth.’” United States v. Arnold, 61 M.J. 254, 257 (C.A.A.F. 2005)
(quoting Mil. R. Evid. 304(g)) (alteration in original).

       We review the denial of a motion to suppress a confession under an abuse of
discretion standard and will not disturb the military judge’s findings of fact unless those
findings are clearly erroneous. United States v. Simpson, 54 M.J. 281, 283 (C.A.A.F.
2000) (citing United States v. Young, 49 M.J. 265, 266-67 (C.A.A.F. 1998); United States
v. Ford, 51 M.J. 445, 451 (C.A.A.F. 1999)).

       The Government only needed “very slight” corroborative evidence to allow the
admission of the appellant’s confession. Skin cells consistent with the appellant’s DNA
profile were found in vaginal-cervical and rectal swabs of KR. It is true that the
Government’s DNA expert could not establish whether these skin cells came from the
appellant’s fingers, his mouth, neither, or both. Nonetheless, the skin cells consistent
with the appellant’s DNA profile were found in KR’s body. Given the “very slight”
quantum of evidence needed to corroborate a confession, we see no reason why the
presence of such skin cells could not be used to corroborate all aspects of the appellant’s
confession. In addition, we note that the record contains other corroborative evidence as
well, such as KR’s testimony concerning the oral sex and her rectal discomfort afterward.
We hold the military judge did not abuse his discretion in admitting the entirety of the
appellant’s confession regarding KR.

                          Staff Judge Advocate’s Pretrial Advice

       We summarily reject the appellant’s contention that the record of trial is missing
the first 30 paragraphs of the staff judge advocate’s pretrial advice to the convening
authority. The record of trial contains the entire pretrial advice, which is in proper form.

                                Post-Trial Processing Delay

        The appellant asserts he is entitled to relief because the Government violated his
due process right to timely post-trial processing of his case when 154 days elapsed after
trial until the convening authority took action. Alternatively, he asserts that he is entitled
to sentence appropriateness relief under Article 66(c), UCMJ, 10 U.S.C. § 866(c),
because of the post-trial delay.


                                              5                                    ACM 38287
        The appellant’s trial concluded on 28 September 2012. The 1,629-page,
10-volume record of trial was authenticated on 30 December 2012 (day 93 following
trial). The staff judge advocate’s recommendation is dated 29 January 2013 (day 123
following trial). The staff judge advocate’s recommendation was served on trial defense
counsel that same day and on the appellant on 11 February 2013. The appellant
submitted clemency matters on 21 February 2013 (day 146), and the addendum to the
staff judge advocate’s recommendation was signed on 1 March 2013 (day 154). The
convening authority took action the day the addendum was signed.

       We review de novo claims that an appellant was denied his due process right to
speedy post-trial processing. United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006).
In conducting this review, we assess the four factors laid out 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 the right to timely review and appeal; and (4) prejudice.
See Moreno, 63 M.J. at 135 (citing United States v. Jones, 61 M.J. 80, 83 (C.A.A.F.
2005); Toohey v. United States, 60 M.J. 100, 102 (C.A.A.F. 2004)). There is a
presumption of unreasonable delay when the convening authority does not take action
within 120 days of the completion of trial. Id. at 142.

        Since the convening authority’s action did not take place within 120 days of the
completion of trial, the length of the delay is presumed unreasonable and we proceed to
an analysis of the remaining three Barker factors. As to the second factor (reasons for the
delay), this record of trial was lengthy and the record reveals the Government generally
moved this case in a relatively timely manner following trial. Concerning factor three
(the appellant’s assertion of the right to timely review and appeal), the appellant concedes
that he did not separately assert his right to timely post-trial review. Finally, the
appellant concedes: “The prejudice in this case rises and falls with [the appellant’s] other
issues. Simply put, if this Court finds that [the appellant] is due relief on another issue, it
is clear that result was delayed and [the appellant was] prejudiced due to that delay.” We
have found no basis for relief in the other assigned errors in this case, and therefore, by
the appellant’s own admission, no prejudice exists from the delay. Weighing these four
factors, we find no due process violation in the post-trial processing of this case.

       We are also mindful of our authority to grant relief under United States v. Tardif,
57 M.J. 219 (C.A.A.F. 2002), and Article 66(c), UCMJ, even in the absence of prejudice.
We decline to do so here. We see nothing about the post-trial processing of this case that
renders the appellant’s sentence inappropriate or provides any reason to grant relief.




                                              6                                     ACM 38287
                                       Conclusion

       The findings and the sentence are correct in law and fact, and no error materially
prejudicial to the substantial rights of the 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.



             FOR THE COURT


             STEVEN LUCAS
             Clerk of the Court




                                            7                                   ACM 38287
