           UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                               Staff Sergeant JEFFERY L. LEWIS
                                      United States Air Force

                                               ACM 38727

                                              20 April 2016

          Sentence adjudged 5 June 2014 by GCM convened at Francis E. Warren Air
          Force Base, Wyoming. Military Judge: Matthew S. Ward.

          Approved Sentence: Bad-conduct discharge, confinement for 2 months, and
          reduction to E-4.

          Appellate Counsel for Appellant: Captain Lauren A. Shure.

          Appellate Counsel for the United States: Major Mary Ellen Payne; Major
          Meredith L. Steer; and Gerald R. Bruce, Esquire.

                                                  Before

                              ALLRED, TELLER, and MAYBERRY
                                  Appellate Military Judges

                                     OPINION OF THE COURT

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                              under AFCCA Rule of Practice and Procedure 18.4.



TELLER, Senior Judge:

       Appellant was convicted, contrary to his plea, by a military judge sitting alone of
abusive sexual contact in violation of Article 120, UCMJ, 10 U.S.C. § 920. The court
sentenced him to a bad-conduct discharge, 2 months of confinement, and reduction to E-4.
The sentence was approved, as adjudged, on 12 December 2015.

      Appellant argues that the evidence is factually and legally insufficient to support his
conviction and asserts that he is entitled to relief for unreasonable post-trial delay for the
190 days that elapsed between the conclusion of trial and convening authority action.
Finding no error that materially prejudices a substantial right of Appellant, we affirm the
findings and sentence.

                                        Background

        The charge in this case arose from an incident in the early morning hours of
8 September 2012 between Appellant and the victim, who was a first lieutenant from
Appellant’s squadron. After a night out drinking and socializing with a friend, the victim
went to an all-night restaurant where he and his friend encountered Appellant. Despite
being in the same unit, Appellant and the victim had only met each other in passing. The
victim had been drinking, but remained aware of his surroundings and was able to
functionally walk and interact with others. Although the sequence of events was unclear,
a plan to go back to Appellant’s apartment with some friends emerged. After arriving at
the apartment, Appellant decided to go out to see if some friends wanted to join the party.
The victim volunteered to accompany him. Appellant drove to the apartment complex of
his friends and left the car to talk with them. The victim stayed in the car. Appellant
returned alone, explaining that the friends had changed their minds. Appellant got back in
the car and started driving back towards his apartment.

        During the return trip, the conversation turned to sex before leading to the sexual
contact alleged in the charge. The victim, in an attempt to ease Appellant’s frustration at
his friends’ decision not to join them, began to talk up Appellant’s ego. In the course of
the ensuing conversation, Appellant disclosed that he was bisexual, and offered to perform
oral sex on the victim or masturbate him. The victim demurred, expressing appreciation,
but telling Appellant he was heterosexual and not interested. Appellant persisted, causing
the victim to refuse more insistently, and Appellant eventually ceased his advances. The
victim noticed that they were taking an indirect route and asked the Appellant about it.
Appellant said he liked to take the long way, and the victim did not raise any concerns.
Some time later, the victim fell asleep. The victim awoke to find the car stopped by the
side of the road, his belt and pants undone, and Appellant reaching beneath the victim’s
underwear and fondling his penis. The victim panicked, shoving Appellant’s hand away
and briefly trying without success to get out of the car. Appellant drove back to his
apartment complex where the victim, who by that time was very distressed, met up with
his friend and went home. The victim did not report the incident until months later.

       Through cross-examination of Government witnesses and the testimony of a
forensic psychologist, Appellant attempted to undermine the case against him. The victim
was cross-examined about inconsistencies in the evidence, previous statements possibly
relating to instances of unwanted sexual contact in college, and an alleged motive to
fabricate the allegations to avoid getting in trouble for socializing with enlisted personnel.
The psychologist testified that the victim displayed an emotional reaction that was “at the
outer range of psychological and physical reactions that [he had] read about and seen.”



                                              2                                    ACM 38727
Appellant argued that the victim’s reaction, especially under the specific facts of the
alleged assault, was so extreme that it raised questions about the veracity of his account.

                               Factual and Legal Sufficiency

       Appellant first argues that the evidence is legally and factually insufficient to sustain
his conviction. We review issues of factual and legal sufficiency de novo. United States
v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).

        “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.’” United States
v. Reed, 54 M.J. 37, 41 (C.A.A.F. 2000) (quoting United States v. Turner, 25 M.J. 324, 325
(C.M.A. 1987)). 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 determination as to whether the evidence constitutes proof
of each required element beyond a reasonable doubt.” Washington, 57 M.J. at 399.

        “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. Humpherys, 57 M.J.
83, 94 (C.A.A.F. 2002) (quoting Turner, 25 M.J. at 324). The term reasonable 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). “[I]n resolving questions of legal sufficiency, we are bound to
draw every reasonable 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). 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).

       After conducting our own review of the record, we find the evidence both legally
and factually sufficient. Viewing the evidence in the light most favorable to the
Government, we find it legally sufficient to sustain the conviction. The only direct
evidence in the record of the incident itself came from the victim. The military judge could
reasonably have believed the victim’s account, despite any inconsistencies. Appellant’s
argument that the victim fabricated the story to avoid getting in trouble for socializing with
enlisted personnel was substantially undermined by the extended delay between the
incident and the victim’s report of the offense. The victim’s testimony, if believed,
established all the elements of the offense. After making allowances for not having
observed the witnesses directly, and applying neither a presumption of innocence nor a
presumption of guilt, we ourselves are also convinced of Appellant’s guilt beyond a
reasonable doubt.




                                               3                                     ACM 38727
                                      Post-trial Delay

        Appellant next asserts that this court should grant him meaningful relief in light of
the 190 days that elapsed between completion of trial and the convening authority’s action.
Courts apply a presumption of unreasonable delay “where the action of the convening
authority is not taken within 120 days of the completion of trial.” United States v. Moreno,
63 M.J. 129, 142 (2006). Appellant does not assert any specific prejudice beyond
incarceration in accordance with his sentence, but argues that we should, nonetheless, grant
relief either for denial of due process or as a matter of sentence appropriateness under
United States v. Tardif, 57 M.J. 219, 223–24 (C.A.A.F. 2002).

        We review de novo an appellant’s claim that he has been denied his due process
right to a speedy post-trial review and appeal. Moreno, 63 M.J. at 135. Because the 190-
day period in this case is facially unreasonable, we examine the claim under 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 the right to timely review and
appeal; and (4) prejudice.” Moreno, 63 M.J. at 135. If we are able to conclude that any
error was harmless beyond a reasonable doubt, we do not need to engage in a separate
analysis of each factor. See United States v. Allison, 63 M.J. 365, 370 (C.A.A.F. 2006).

        Appellant does not argue any particularized prejudice from the delay. Appellant
accurately identifies the interests we consider in evaluating prejudice: the prevention of
oppressive incarceration pending appeal, minimization of anxiety and concern of those
convicted awaiting the outcome of their appeals, and limitation of any impairment on the
ability to demonstrate grounds for relief upon appeal. He asserts only that awaiting the
decision of the convening authority caused him “grave stress and anxiety.” Under Moreno,
an appellant must “show particularized anxiety or concern that is distinguishable from the
normal anxiety experienced by prisoners awaiting an appellate decision.” Moreno, 63 M.J.
at 140. Appellant has not done so in this case. While we agree that Moreno violations are
unacceptable, we find beyond a reasonable doubt that Appellant was not harmed by the 70-
day delay and is, thus, not entitled to relief under Moreno.

        A finding of harmless error does not end the inquiry, as we may grant sentence relief
under Article 66(c), UCMJ, 10 U.S.C. § 866(c), for excessive post-trial delay without the
showing of actual prejudice required by Article 59(a), UCMJ, 10 U.S.C. § 859(a). Tardif,
57 M.J. at 224; see also United States v. Harvey, 64 M.J. 13, 24–25 (C.A.A.F. 2006). In
United States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), we identified a list of
factors to consider in evaluating whether Article 66(c), UCMJ, relief should be granted for
post-trial delay. Those factors include how long the delay exceeded appellate review
standards, the reasons for the delay, whether the government acted with bad faith or gross
indifference, evidence of institutional neglect, harm to the appellant or to the institution,
whether relief is consistent with the goals of both justice and good order and discipline,



                                              4                                    ACM 38727
and whether this court can provide meaningful relief. Id. No single factor is dispositive
and we may consider other factors as appropriate. Id.

       We have examined the entirety of the post-trial process. The length of the delay
was substantial, but not egregious. Although the delay was primarily due to workload, a
matter within the control of the Government, we find no evidence of bad faith in that
respect. The Government sought transcription assistance to minimize processing time. As
discussed above, Appellant suffered no particularized harm beyond that of any prisoner
awaiting review of their case. In light of the convening authority’s ultimate decision not
to grant any relief, we do not discern any injustice in the delay. We also note that,
according to Appellant’s motions in this case, he is no longer confined, so we would not
be able to directly address what little harm he has alleged by disapproving some part of the
sentence to confinement. In short, we detect nothing that would suggest this is a case in
which the public’s perception of the fairness and integrity of the system could reasonably
be questioned. We, therefore, decline to grant Tardif relief.

                                        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. Accordingly, the approved findings and sentence are AFFIRMED.



              FOR THE COURT


              LEAH M. CALAHAN
              Clerk of the Court




                                             5                                    ACM 38727
