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

                               No. ACM 39377
                          ________________________

                             UNITED STATES
                                 Appellee
                                      v.
                       Nathaniel B. NICHOLS
             Senior Airman (E-4), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary


                         Decided 25 February 2019
                          ________________________

Military Judge: Donald R. Eller, Jr.
Approved sentence: Bad-conduct discharge, confinement for 15 months,
forfeiture of all pay and allowances, and reduction to E-1. Sentence ad-
judged 10 August 2017 by GCM convened at Grand Forks Air Force
Base, North Dakota.
For Appellant: Major Rebecca J. Otey, USAF; Major Dustin J. Weisman,
USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Captain Sean
J. Sullivan, USAF; Mary Ellen Payne, Esquire.
Before JOHNSON, DENNIS, and LEWIS, Appellate Military Judges.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as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


PER CURIAM:
    Appellant was convicted, in accordance with his pleas, of two specifications
of assault consummated by a battery and one specification of communicating
a threat in violation of Articles 128 and 134, Uniform Code of Military Justice
                     United States v. Nichols, No. ACM 39377


(UCMJ), 10 U.S.C. §§ 928, 934. Appellant was also convicted of one specifica-
tion of assault consummated by a battery contrary to his pleas.* A military
judge sitting alone sentenced Appellant to a bad-conduct discharge, confine-
ment for 15 months, forfeiture of all pay and allowances, and reduction to the
grade of E-1. The convening authority approved the sentence as adjudged.

                                   I. BACKGROUND
    This case was submitted for our review on its merits without assignment
of error. Upon our review, we noted an error in the announcement of the find-
ings with respect to Specification 1 of Charge I, which alleged that Appellant:
        Did, at or near Ely, United Kingdom, between on or about
        25 June 2016 and on or about 9 July 2016, unlawfully kick Sen-
        ior Airman [EW] on her leg with his foot and strike Senior Air-
        man [EW] on her leg with his fists.
    At the close of the Government’s case, trial defense counsel, pursuant to
Rule for Courts-Martial (R.C.M.) 917, moved to dismiss the part of Specifica-
tion 1 of Charge I that alleged Appellant “unlawfully kicked SrA [EW] on her
leg with his foot” on the grounds that “no evidence was provided as to where
on her body this injury or this event occurred.” The Government conceded that
there was no evidence Appellant unlawfully kicked SrA EW on her leg with his
foot, but cited SrA EW’s testimony that Appellant unlawfully kicked her “torso”
with his foot and asserted that the military judge could find him guilty by ex-
ceptions and substitutions. The military judge eventually found that the “use
of exceptions and substitutions would not be a major change.” He added, “In
that sense the defense’s motion under RCM 917 is denied.”
   Shortly thereafter, the military judge announced the following finding with
respect to Specification 1 of Charge I:




* One of the assault consummated by a battery specifications was originally charged
as aggravated assault on divers occasions, but Appellant pled guilty by exceptions and
substitutions to the lesser-included offense (LIO) of assault consummated by a battery
on a single occasion. After the Government attempted to prove the charged offense, the
military judge found Appellant guilty of the LIO and announced the following special
finding: “Specifically, the Court finds that on divers occasions . . . the accused commit-
ted an assault upon SrA [EW] by unlawfully strangling her neck with his hands.” Be-
cause the CMO reflects only that the military judge found Appellant guilty of the LIO
but does not specify the actions for which Appellant was convicted, we order the prom-
ulgation of a corrected CMO.


                                            2
                   United States v. Nichols, No. ACM 39377


       Guilty, except for the word “leg” substituting therefore the word
       “torso.” Of the excepted word: Not Guilty; of the substituted
       word: Guilty.
    Despite the word “leg” appearing twice in Specification 1 of Charge I, the
military judge’s announced findings did not specify whether he excepted the
first use of the word “leg” or the second use of the word “leg.” Neither party
objected to the announcement of findings or requested special findings.

                                II. DISCUSSION
    This court long ago accepted as a substantial right of an accused “the right
to announcement of all findings in open court.” United States v. Timmerman,
28 M.J. 531, 536 (A.F.C.M.R. 1989). “However, though an error which affects
a substantial right of an accused is presumptively prejudicial, ‘the presumption
may yield to compelling evidence in the record that no harm actually resulted.’”
Id. (citing United States v. Boland, 42 C.M.R. 275, 278 (C.M.A. 1970)). “In this
regard we look to the record as a whole to determine the intent of the trial court
with respect to announcement of the findings.” Id. (citations omitted).
    We are convinced no harm resulted to Appellant from the military judge's
failure to clarify which use of the word “leg” he was excepting and substituting
because the record makes clear that the military judge was adopting the Gov-
ernment’s recommended course of action to resolve Appellant’s R.C.M. 917 mo-
tion. Finally, we note that Appellant has never—at trial, during post-trial pro-
cessing, or on appeal—identified the military judge’s error or claimed preju-
dice. Thus, we conclude Appellant has suffered no harm as a result of the mil-
itary judge’s failure to clarify that his finding of guilty by exceptions and sub-
stitutions applied only to the first use of the word leg in Specification 1 of
Charge I.

                               III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to Appellant’s substantial rights occurred. Articles
59(a) and 66(c), Uniform Code of Military Justice, 10 U.S.C. §§ 859(a), 866(c)
(2016). Accordingly, the approved findings and sentence are AFFIRMED.


                     FOR THE COURT



                     CAROL K. JOYCE
                     Clerk of the Court


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