UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                              BERGER, BURTON, and ALDYKIEWICZ
                                   Appellate Military Judges

                                  UNITED STATES, Appellee
                                               v.
                                    Major ERIK J. BURRIS
                                 United States Army, Appellant

                                           ARMY 20150047

                               Headquarters, Fort Bragg
                 Tara A. Osborn and John T. Rothwell, Military Judges
             Lieutenant Colonel Jerrett W. Dunlap, Jr., Staff Judge Advocate

For Appellant: Lieutenant Colonel Christopher D. Carrier, JA; Zachary Spilman,
Esquire (on brief, reply brief and motion for reconsideration).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Eric K. Stafford,
JA; Major Virginia H. Tinsley, JA; Captain Natanyah Ganz (on supplemental brief
on behalf of appellee following remand).

                                            8 February 2019

              --------- -------------------------------------------------------------------------
               MEMORANDUM OPINION ON REMAND ON RECONSIDERATION
              -----------------------------------------------------------------------------------

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

BURTON, Senior Judge:

       Our court previously conducted an appellate review of this case pursuant to
Article 66, Uniform Code of Military Justice [UCMJ], affirming appellant’s
conviction and sentence. United States v. Burris, 2017 CCA LEXIS 315 (Army Ct.
Crim. App. 8 May 2017). 1 The Court of Appeals for the Armed Forces (CAAF)



1
 An officer panel sitting as a general court-martial convicted appellant, contrary to
his pleas, of one specification of willfully disobeying a superior commissioned
officer, two specifications of rape, one specification of sodomy, and four
specifications of assault consummated by a battery, in violation of Articles 90, 120,
125, and 128, UCMJ, 10 U.S.C. §§ 890, 920, 925, and 928 (2012). The panel

                                                                                            (continued . . .)
BURRIS—ARMY 20150047

subsequently granted review on the issue of whether the failure to object to improper
character evidence and improper argument constitutes waiver or forfeiture. The
CAAF held that a mere failure to object is forfeiture, not waiver as this court had
held. United States v. Burris, 78 M.J. 56 (C.A.A.F. 2018) (summ. disp.). The
CAAF set aside this court’s decision and returned the record to The Judge Advocate
General for remand to this court. The CAAF order observed that “the Government
has argued for the first time in this Court that Appellant affirmatively waived his
challenges to the admission of character evidence and argument. We leave this
argument for the lower court to address on remand.”

       We issued a memorandum opinion on remand on 7 December 2018 affirming
the findings of guilty and the sentence. United States v. Burris, ARMY 20150047,
2018 CCA LEXIS 598 (Army Ct. Crim. App. 7 Dec. 2018) (mem. op.). Appellant
requested we reconsider our decision regarding the scope of the CAAF remand and
asked that we conduct a plenary review of the findings and the sentence in his case.
We granted appellant’s request.

       Accordingly, we have reviewed and considered all of appellant’s alleged
errors, including those raised in his initial brief and supplemental brief on remand. 2
We will address two of appellant’s assigned errors: (1) whether appellant
affirmatively waived objection to the admission of evidence and argument that
appellant refers to himself as “The Beast;” and (2) if there is no affirmative waiver,
whether admission of “The Beast” was plain error, and whether trial counsel
improperly argued evidence that appellant refers to himself as “The Beast.”

                                   BACKGROUND

        At trial, evidence was introduced by both parties that appellant’s self-given
moniker is “The Beast.” Trial counsel was the first to mention “The Beast” in her
opening statement when she described the expected testimony of WB regarding the
first time she was raped by appellant:

             It was a night that pregnant [WB] first met The Beast. Let
             me say that again: The Beast. That is the name the
             accused gives his own alter ego. That is the name the



(. . . continued)
sentenced appellant to a dismissal, confinement for twenty years, and forfeiture of
all pay and allowances. The convening authority approved the sentence as adjudged,
but waived automatic forfeitures for six months.
2
 We have also considered the matters personally asserted by appellant pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find they lack merit.



                                           2
BURRIS—ARMY 20150047

              accused gives the alter ego that sexually assaults [WB]
              time and time again.

      But, it was the defense counsel who first elicited witness testimony of “The
Beast” during cross-examination of appellant’s supervisor, the Staff Judge Advocate
(SJA) of the 82d Airborne Division. Defense asked the SJA about details appellant
shared with him about his case. Defense counsel asked, “[Appellant] told you about
something called The Beast, correct?” The SJA answered, “That might not have
been until January; but, yes, he did.”

        The next reference to “The Beast” was when government introduced into
evidence appellant’s videotaped Criminal Investigation Command (CID) interview
during which he told a special agent about his nickname, “The Beast.” When the
trial counsel offered the video into evidence, the defense counsel stated, “No
objection, Your Honor.” The government then published the video to the panel.

      The victim, WB, testified after appellant’s CID interview was admitted into
evidence. During her testimony, WB testified about the first time appellant raped
her. The next morning, WB asked appellant, “Why did you do that? You hurt me.”
WB testified that appellant replied, “Oh, you must have been talking about The
Beast. You met The Beast last night.” WB testified that appellant further explained,
“Oh, that’s a name I nicknamed – the girls in college that that happened to and they
nicknamed – calls it The Beast.”

      Both the trial counsel and defense counsel referenced “The Beast” in closing
argument. Trial counsel treated the reference as appellant’s admission to the
charged offenses. Meanwhile, defense counsel argued “The Beast” was WB’s
exaggeration and embellishment of the charged offenses.

       Appellant made no objection at trial to any of “The Beast” references.

       On appeal, appellant alleges the references to him as “The Beast” were
impermissible character evidence and improper argument. During this court’s initial
Article 66, UCMJ, review of this case, appellee argued “The Beast” was not
evidence of a character trait under Mil. R. Evid 404(a)(1), or in the alternative, it
was not plain error. This court agreed with appellee that “The Beast” is not a
character trait. This court did not conduct a plain error analysis, but instead relied
upon the plain language of Mil. R. Evid. 103(a) 3 and Rule for Courts-Martial




3
 Military Rule of Evidence 103(a) states, “[a] party may claim error in a ruling to
admit or exclude evidence only if the error materially prejudices a substantial right
of the party and: if . . . a party on the record: timely objects or moves to strike . . . .”



                                             3
BURRIS—ARMY 20150047

[R.C.M.] 919(c) 4 and held appellant procedurally waived the asserted error by not
objecting to the evidence or argument. After we issued our opinion in this case, the
CAAF issued the opinion of United States v. Davis, holding that an appellant’s
failure to object is reviewed for plain error. 76 M.J. 224, 229 (C.A.A.F. 2017).

                                       ANALYSIS

                                        A. Waiver

        Our superior court describes the difference between waiver and forfeiture as,
“[a] forfeiture is basically an oversight; a waiver is a deliberate decision not to
present a ground for relief that might be available in the law.” United States v.
Campos, 67 M.J. 330, 332 (C.A.A.F. 2009) (citation omitted). “While we review
forfeited issues for plain error, we cannot review waived issues at all because a valid
waiver leaves no error for us to correct on appeal.” Id. (citations omitted). 5 In
determining whether a particular circumstance constitutes waiver or forfeiture, we
consider whether the failure to raise the objection at the trial level constituted an
intentional relinquishment of a known right.” Id. (citations omitted).

       This is not a case where appellant merely failed to object to evidence. Not
only did appellant never object to evidence or argument referencing “The Beast”, the
record makes clear that appellant intentionally relinquished his right to object. See
Campos, 67 M.J. at 332-33 (holding the doctrine of waiver will apply, despite no
objection from defense, if it is otherwise clear from the record that it was an
intentional relinquishment of a known right).

       Appellant’s intentional relinquishment of his right to object to “The Beast” is
apparent throughout all stages of the trial. First, appellant was fully aware of the
content of his CID interview prior to trial. Appellant knew that he revealed to CID
his nickname, “The Beast.” Yet, appellant did not file a pre-trial motion to suppress
the statement. 6 After hearing trial counsel reference “The Beast” in opening
statement, appellant still did not object.


4
 Rule for Courts-Martial 919(c) states, “[f]ailure to object to improper argument
before the military judge begins to instruct members on findings shall constitute
waiver of the objection.”
5
  However, this Court may elect to notice forfeited and waived error. See Article
66(c); United States v. Quiroz, 55 M.J. 334, 338-39 (C.A.A.F. 2001). Our review of
the record does not convince us that this would be appropriate in this case.
6
    Pursuant to Mil. R. Evid. 304(f)(1), “Motions to suppress or objection under this

                                                                        (continued . . .)


                                            4
BURRIS—ARMY 20150047

       Indeed, it was appellant who first elicited testimony of “The Beast” into
evidence during cross-examination of the SJA. Further, when the government
offered appellant’s CID video interview into evidence, appellant stated he had “no
objection” to its admission. Notably, appellant stated “no objection” before the
military judge even asked if there was an objection to the video. United States v.
Swift, 76 M.J. 210, 212 (C.A.A.F. 2017) (holding a statement of “no objection” to
the admission of evidence at trial, waives an appellant’s right to complain on
appeal). Later, during WB’s testimony and trial counsel’s argument, appellant still
raised no objection. Absent evidence to the contrary, we presume counsel are
competent under Strickland v. Washington, 466 U.S. 668, 690 (1984). Thus, a
defense counsel’s affirmative statement of “no objection” is a purposeful decision.

       Indeed, the defense wrapped the nickname into its theory of the case,
attempting to use the name to sow doubt about the victim’s credibility. In
appellant’s own closing argument, counsel argued WB turned a joke into
exaggerated rape.

       Accordingly, we find appellant has affirmatively waived his right to object to
the evidence and argument of “The Beast.” See United States v. Ahern, 76 M.J. 194
(C.A.A.F. 2017) (holding appellant waived objection to his statements where he was
aware of their content, had numerous opportunities to object at trial, and stated “no
objection” when government moved for their admission).

                           B. Forfeiture and Plain Error

        Alternatively, even assuming appellant did not affirmatively waive objection
to “The Beast,” we find the admission of this evidence and argument was not plain
error. “Where 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.” United
States v. Brooks, 64 M.J. 325, 328 (2007). To demonstrate relief is warranted under
the plain error doctrine, an appellant must show that: (1) there was error; (2) the
error was plain or obvious; and (3) the error was materially prejudicial to his
substantial rights. United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014) (citing
Brooks, 64 M.J. at 328). “[F]ailure to establish any one of the prongs is fatal to a
plain error claim.” United States v. Bungert, 62 M.J. 346, 348 (C.A.A.F. 2016).




(. . . continued)
rule, or Mil. R. Evid. 302 or 305, to any statement or derivative evidence that has
been disclosed must be made by the defense prior to submission of plea. In the
absence of such motion or objection, the defense may not raise the issue at a later
time except as permitted by the military judge for good cause shown. Failure to so
move or object constitutes a waiver of the objection.”



                                          5
BURRIS—ARMY 20150047

                                  1. Was there error?

      As an initial matter, we find appellant has not demonstrated that evidence of
“The Beast” is error because it is not evidence of a character trait under Mil. R.
Evid. 401(a). As we concluded previously, “[i]t is appellant’s self-imposed
nickname, and it is not ‘necessarily suggestive of a criminal disposition.’” Burris,
2017 CCA LEXIS 315, at *6 (quoting United States v. Farmer, 583 F.3d 131, 145
(2d Cir. 2009)).

        Second, use of “The Beast” was admissible evidence to demonstrate
appellant’s consciousness of guilt. See United States v. Staton, 69 M.J. 228, 230-31
(C.A.A.F. 2010) (recognizing “consciousness of guilt” as an exception to Mil. R.
Evid. 404(b)). When, post-rape, appellant explained his behavior to WB as
becoming “The Beast,” appellant conveyed, to some greater or lesser extent, that he
knew his conduct was wrong, even if trying to deflect moral culpability for his
actions. As such, appellant displayed consciousness of guilt. Alternatively, the
defense used “The Beast” to show that WB had taken a joke out of context as part of
her confabulation of a rape crime. Both were proper uses of the evidence.

                          2. Was the error plain and obvious?

       Even assuming error, it was not plain and obvious. When examining this
prong, we ask whether the error was so obvious “in the context of the entire trial”
that “the military judge should be ‘faulted for taking no action’ even without an
objection.” United States v. Gomez, 76 M.J. 76, 81 (C.A.A.F. 2017) (citing United
States v. Burton, 67 M.J. 150, 153 (C.A.A.F. 2009) (quoting United States v.
Maynard, 66 M.J. 242, 245 (C.A.A.F. 2008))); see also United States v. Frady, 456
U.S. 152, 163 (1982) (noting that error is clear if “the trial judge and prosecutor
[would be] derelict in countenancing it, even absent the defendant’s timely
assistance in detecting it.”).

       It would have been improper for the government to introduce evidence and
argue that appellant was an animal, and raped WB in conformity with his animal-like
nature. The government came closest to this line when the trial counsel argued:

             [W]hen ‘The Beast’ as he described it himself, as he
             names it - - what does a beast do? Does a beast listen?
             Does a beast talk? Does a beast want your opinion, your
             insight on what’s happening? No. A beast takes. A beast
             doesn’t reason, and doesn’t care. It was a perfect name
             because that’s exactly what [WB] described to you from
             this stand in this courtroom when she talked about the
             times [appellant] would force his finger into her, force his
             penis into her when she was crying and saying no.




                                          6
BURRIS—ARMY 20150047

       However, even this argument can be understood two ways. The government
was allowed to argue that appellant’s self-description was an accurate account of his
actions. That he knowingly acted in an uncaring and sadistic manner when he raped
WB. They could not argue that appellant is feral. To the extent that the
government’s argument can be understood two different ways, we review the record
in the light most favorable to the prevailing party. Or, put differently, any error was
not clear and obvious.

       Any potential error in this case was so slight that both the military judge and
appellant failed to recognize it. See United States v. Short, 77 M.J. 148, 151
(C.A.A.F. 2018) (noting alleged improper argument was not plain and obvious where
neither the military judge nor appellant recognized it). The military judge did sua
sponte raise a possible concern for improper argument when trial counsel made a
statement that could have been interpreted as commenting on appellant’s failure to
testify. However, the military judge never raised a sua sponte concern for any
references to “The Beast” at any stage of trial.

               3. Was there material prejudice to a substantial right?

       Lastly, even assuming a plain and obvious error, we conclude that evidence
and argument referencing “The Beast” did not materially prejudice a substantial
right of appellant. A finding or sentence of a court-martial “may not be held
incorrect on the ground of an error of law unless the error materially prejudices the
substantial rights of the accused.” UCMJ art. 59(a). The third prong is satisfied if
appellant shows “a reasonable probability that, but for the error [claimed], the
outcome of the proceeding would have been different.” United States v. Robinson,
77 M.J. 294, 299 (C.A.A.F. 2018) (citation and quotation omitted).

        The panel’s mixed findings demonstrate that the members weighed the
evidence at trial and independently assessed appellant’s guilt. See United States v.
Sewell, 76 M.J. 14, 19 (C.A.A.F. 2017). The panel acquitted appellant of ten of the
eighteen specifications. Seven of the acquitted specifications related to incidents
involving WB alleging offenses of assault consummated by a battery, sexual assault,
sodomy, and communicating a threat. Notably, appellant was acquitted of the two
specifications alleging he forcibly penetrated WB’s anus with his finger, which trial
counsel argued appellant committed consistent with his nickname. The panel
members also excepted and substituted language in several of the specifications.
References to “The Beast” were not so prejudicial that the panel convicted appellant
of all charges and specifications. To the extent we can make inferences from a
panel’s findings, the panel’s precise mixed findings and findings by exceptions and
substitutions indicate the panel engaged in a careful deliberative process based on
the evidence presented. We are “confident that the members convicted appellant on
the basis of the evidence alone.” United States v. Hornback, 73 M.J. 155, 161
(C.A.A.F. 2014).



                                           7
BURRIS—ARMY 20150047

                                  CONCLUSION

       Having reviewed all allegations of error, including the matters remanded to
this court, and all responses thereto, the findings of guilty and the sentence are
AFFIRMED anew.

      Chief Judge BERGER and Judge ALDYKIEWICZ concur.


                                          FOR
                                          FOR THE
                                              THE COURT:
                                                  COURT:




                                          MALCOLM H. SQUIRES, JR.
                                          MALCOLM H. SQUIRES, JR.
                                          Clerk of Court
                                          Clerk of Court




                                          8
