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

                               No. ACM 39381
                          ________________________

                            UNITED STATES
                                Appellee
                                      v.
                         Joseph D. ROMAN
             Senior Airman (E-4), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                         Decided 7 February 2019
                          ________________________

Military Judge: L. Martin Powell (motions); Patricia A. Gruen (trial).
Approved sentence: Dishonorable discharge, confinement for 3 years,
forfeiture of all pay and allowances, reduction to E-1, and a reprimand.
Sentence adjudged 22 September 2017 by GCM convened at Kadena Air
Base, Japan.
For Appellant: Major Megan E. Hoffman, USAF; Major Meghan R.
Glines-Barney, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major
Thomas C. Franzinger, USAF; Mary Ellen Payne, Esquire.
Before JOHNSON, DENNIS, and LEWIS, Appellate Military Judges.
Judge LEWIS 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    This is an unpublished opinion and, as such, does not serve as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.
                            ________________________
   LEWIS, Judge:
   Appellant, contrary to his pleas, was found guilty by officer members of one
specification of attempted sexual assault of a child and two specifications of
                   United States v. Roman, No. ACM 39381


attempted sexual abuse of a child in violation of Article 80, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 880. The officer members sentenced Ap-
pellant to a dishonorable discharge, three years of confinement, forfeiture of
all pay and allowances, reduction to the grade of E-1, and a reprimand. The
convening authority approved the adjudged sentence.
    Appellant raises two issues for our consideration on appeal: (1) whether the
military judge committed plain error when she failed to provide a findings in-
struction on the affirmative defense of lack of mental responsibility; and (2)
whether the military judge erred by failing to give a sentencing instruction to
not rely on possible action by the convening authority in determining a sen-
tence. In addition, we address a facially unreasonable delay in the post-trial
processing of Appellant’s case. We find no prejudicial error and affirm.

                               I. BACKGROUND
    On 20 December 2016, Appellant responded to a social media post from a
female named “Cristina” who indicated she had just broken up with her boy-
friend. Appellant and “Cristina” began exchanging messages within a social
media application. “Cristina” told Appellant she did not have a lot of dating
options after the breakup with her boyfriend because she was only 14 years
old. Appellant, who was 25 years old, replied that technically she had lots of
dating options with older guys. Within a few days, Appellant’s messages to
“Cristina” increasingly focused on sexual topics. He would ultimately describe,
in graphic detail, the various acts of foreplay and sexual intercourse he desired
to do with “Cristina.” He pointedly messaged “Cristina” that he “[couldn’t] wait
to take [her] virginity.” When “Cristina” expressed concern about getting preg-
nant, Appellant reassured her “that’s what condoms and all are for.”
    Within two weeks of the initial post, Appellant and “Cristina” agreed to
meet at her house while her mom would be at work. Appellant instructed “Cris-
tina” to masturbate every day until they met as it would “help” when they had
sex. During the course of their messaging, Appellant requested “Cristina” send
him naked pictures of herself. Appellant also sent “Cristina” at least six pic-
tures of his erect penis and eight videos of him masturbating. In one of the
videos, he references “Cristina” by name and how “[he] can’t wait to be inside
[her].”
    On 3 January 2017, Appellant drove his vehicle to a house on Kadena Air
Base, Japan to meet “Cristina.” He had 14 condoms in his backpack. As “Cris-
tina” was actually an undercover investigator for the Joint Child Crimes Task
Force in Okinawa, Japan, agents from the Naval Criminal Investigative Ser-
vice (NCIS) apprehended Appellant as he approached the front door. When he
was confronted by NCIS agents, Appellant spontaneously stated, “I didn’t be-
lieve she was 14. I wasn’t going to do anything.” NCIS agents turned Appellant

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                   United States v. Roman, No. ACM 39381


over to agents from the Air Force Office of Special Investigations (AFOSI)
shortly after his apprehension. Once the AFOSI agents and Appellant arrived
back at the AFOSI detachment, Appellant stated, “I was half wishing it was
[AFOSI] because I need help.”
    At trial, Appellant unsuccessfully presented a defense that he actually
knew “Cristina” was an undercover law enforcement agent before he sent any
naked pictures or videos to “Cristina” and before he messaged her about having
sex. To this end, Appellant testified that he escalated the messages to sexual
topics to “mess with” law enforcement. He similarly testified that he sent the
videos of him masturbating to give the “middle finger” to law enforcement or
possibly “someone [who was] messing with me.” Appellant indicated he got
pleasure from feeling smarter than law enforcement. Appellant ultimately de-
nied having an actual belief that he was communicating with a 14-year-old girl.
Similarly, he denied the intent to have sex with a 14-year-old girl. Appellant
provided multiple reasons for driving to meet “Cristina” including: (1) to prove
he was correct that “Cristina” was actually a law enforcement agent; and (2) to
get mental health assistance with suicidal ideations. In response to a court
member question asking “How does bringing a backpack with condoms fit in
your plan to get help for suicidal thoughts,” Appellant responded: “I need [to
be] backed into as big of a corner as possible . . . . I don’t ask for help unless I
feel like I have absolutely zero – any other option . . . .”
    Appellant actually reached out for help about two weeks before he re-
sponded to the first posting from “Cristina.” On 8 December 2016, Appellant
messaged his supervisor, Technical Sergeant (TSgt) CP, “I need to talk.” Ap-
pellant confided in TSgt CP that he had thoughts of harming himself. As TSgt
CP knew that Appellant recently had a particularly difficult break-up with his
girlfriend and TSgt CP had seen a decline in Appellant’s personal hygiene,
TSgt CP took Appellant to the U.S. Naval Hospital Okinawa’s emergency room
(ER). Appellant was evaluated for suicidal ideations at the ER and it was de-
cided he did not need inpatient treatment. He was seen for a follow-up by the
Kadena Air Base mental health clinic on an outpatient basis on 13 December
2016.
    In describing these interactions with mental health professionals, Appel-
lant testified that “[he] didn’t trust mental health to take care of [him]” and
“[he] didn’t trust people to be able to look after [him].” He also described being
“absolutely confident” that he would be arrested at the house where he was
meeting “Cristina” and that his arrest was “the necessary step I needed to take
to save my life.”
   On 17 April 2017, the Government completed a sanity board on Appellant.
He was diagnosed with a severe mental disease or defect at the time of the



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                    United States v. Roman, No. ACM 39381


offenses. His specific diagnosis was “persistent depressive disorder, early on-
set, moderate, with mild anxious distress.” However, the sanity board found
that Appellant appreciated the nature and quality or wrongfulness of his con-
duct and that he had sufficient mental capacity to understand the nature of
the proceedings and to cooperate intelligently in his own defense.
    The Defense’s forensic psychologist, Dr. EB, testified during findings for
the Defense.* Dr. EB explained Appellant’s diagnosis as including persistent
symptoms of depression that did not meet criteria for major depressive disor-
der. On a ranking scale of mild, moderate, or severe, Appellant received a mod-
erate diagnosis for the time period of the offenses. His symptoms of depression
began before he was 21 years old so they were “early onset,” and his symptoms
included feeling hopeless, a loss of interest in life, not getting pleasure from
activities, and difficulty concentrating. Finally, Appellant was diagnosed with
a “specifier” of mild anxious distress, which meant he had a lot of energy or
“restlessness where [he] just can’t stop” that combined with his persistent de-
pressive disorder symptoms. Dr. EB noted that Appellant’s treatment “in every
session” focused on his ability to tolerate distress. Dr. EB described one of Ap-
pellant’s red flags that aggravated his distress was “ruminating” or “exces-
sively worrying and dwelling” rather than using productive, healthy problem
solving. She described Appellant’s coping mechanisms as “fragile” and lacking
the breadth, depth, or diversity that would allow him to respond to different or
deeper levels of distress.
    Dr. EB acknowledged that she could not know Appellant’s intent or why
Appellant acted as he did in an exact moment. However, she noted that at
times of high distress he was more prone to exercise poor judgment and engage
in self-defeating behaviors than an average person. She summarized, “when
he’s overwhelmed his coping mechanisms, it affects his thinking and his cog-
nition; just his cognitive processing, his ability to function at work and function
in relationships, and all of that can[,] we know, can set people up for engaging
in self-defeating behaviors.” During cross-examination, Dr. EB agreed that
seeking illicit sex with a 14-year-old child could be a self-destructive behavior
and that some people use masturbation and sex as coping mechanisms.




*We do not attempt in this opinion to fully summarize or explore all aspects of Dr. EB’s
trial testimony. Instead, we include the portions relevant to the issue before us. We
focus on several of her explanations of Appellant’s mental health diagnosis of persis-
tent depressive disorder and a later comparison she made about Appellant’s decision-
making during periods of high distress.


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                   United States v. Roman, No. ACM 39381


                                II. DISCUSSION
A. Lack of Mental Responsibility
   1. Additional Background
    At trial, Appellant’s trial defense counsel never raised a defense of lack of
mental responsibility. During a discussion on findings instructions, trial de-
fense counsel requested tailored instructions but never mentioned lack of men-
tal responsibility. Nor did trial defense counsel object when the military judge
did not sua sponte include such an instruction.
    Instead, trial defense counsel utilized Appellant’s mental health condition
as support for the actual defense strategy that Appellant knew law enforce-
ment was impersonating a 14-year-old girl and he was engaging in an ill-ad-
vised cat-and-mouse game with them so he could eventually get apprehended
and get help. Appellant does not raise an allegation that his trial defense coun-
sel’s actual strategy constituted ineffective assistance of counsel.
    On appeal, Appellant argues that his testimony and the testimony of Dr.
EB reasonably raised the defense of lack of mental responsibility. As the mili-
tary judge did not sua sponte give an instruction on lack of mental responsibil-
ity, Appellant argues that she erred and that error was not harmless beyond a
reasonable doubt. We disagree that the military judge erred. As we do not find
error, we do not test for harmlessness beyond a reasonable doubt or consider
the defense’s burden to prove the defense of lack of mental responsibility by
clear and convincing evidence under Rule for Courts-Martial (R.C.M.)
916(b)(2).
   2. Law
    The adequacy of a military judge’s instructions is reviewed de novo. United
States v. Dearing, 63 M.J. 478, 482 (C.A.A.F. 2006). “The military judge bears
the primary responsibility for ensuring that mandatory instructions . . . are
given and given accurately.” United States v. Miller, 58 M.J. 266, 270 (C.A.A.F.
2003). Instructions on findings shall include “[a] description of any special de-
fense under R.C.M. 916 in issue.” R.C.M. 920(e)(3). Lack of mental responsibil-
ity is an affirmative defense under R.C.M. 916(k)(1). Special defenses are often
called affirmative defenses. R.C.M. 916(a), Discussion.
    The military judge must instruct the members “on the availability and legal
requirements of an affirmative defense if ‘the record contains some evidence to
which the military jury may attach credit if it so desires.’” United States v.
Hibbard, 58 M.J. 71, 72 (C.A.A.F. 2003) (quoting United States v. Brown, 43
M.J. 187, 189 (C.A.A.F. 1995)) (additional citations omitted). An affirmative
defense is “in issue” when “some evidence, without regard to its source or cred-
ibility, has been admitted upon which members might rely if they chose.”


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                   United States v. Roman, No. ACM 39381


United States v. Stanley, 71 M.J. 60, 61 (C.A.A.F. 2012) (quoting United States
v. Lewis, 65 M.J. 85, 87 (C.A.A.F. 2007)); United States v. Watford, 32 M.J. 176,
178 (C.M.A. 1991) (noting a defense is reasonably raised when there is “‘some
evidence’ to which the [panel] members might attach credence.” (quoting
United States v. Taylor, 26 M.J. 127, 129–30 (C.M.A. 1988))). “Any doubt
whether an instruction should be given should be resolved in favor of the ac-
cused.” United States v. Davis, 53 M.J. 202, 205 (C.A.A.F. 2000) (citing United
States v. Steinruck, 11 M.J. 322, 324 (C.M.A. 1981)). “Where an instructional
error raises constitutional implications, [we have] traditionally tested the error
for prejudice using a ‘harmless beyond a reasonable doubt’ standard.” United
States v. Davis, 73 M.J. 268, 271 (C.A.A.F. 2014) (footnote omitted) (quoting
Dearing, 63 M.J. at 482).
  Article 50a(a), UCMJ, 10 U.S.C. § 850a(a) describes the defense of lack of
mental responsibility.
       It is an affirmative defense in a trial by court-martial that, at
       the time of the commission of the acts constituting the offense,
       the accused, as a result of a severe mental disease or defect, was
       unable to appreciate the nature and quality or the wrongfulness
       of the acts. Mental disease or defect does not otherwise consti-
       tute a defense.
    R.C.M. 916(k)(1) contains almost identical language to Article 50a(a).
R.C.M. 916(k)(3) states “[t]he accused is presumed to have been mentally re-
sponsible at the time of the alleged offense. This presumption continues until
the accused establishes, by clear and convincing evidence, that he or she was
not mentally responsible at the time of the alleged offense.” See also Leland v.
Oregon, 343 U.S. 790 (1952) (finding no due process violation when Oregon was
the only state to require an accused to prove an insanity defense beyond a rea-
sonable doubt); R.C.M. 916(b)(2). Generally, once a defense “is placed in issue
by some evidence, the prosecution shall have the burden of proving beyond a
reasonable doubt that the defense did not exist.” United States v. Berri, 33 M.J.
337, 343 (C.M.A. 1991) (quoting R.C.M. 916(b)). Lack of mental responsibility
is an exception to that general rule. R.C.M. 916(b)(2).
   3. Analysis
    The military judge had conclusive evidence that Appellant suffered from a
severe mental disease or defect, persistent depressive disorder, at the time of
the offenses. The sanity board, which was ordered by the convening authority,
found as much. However, there was not “some evidence” presented during the
trial that Appellant was “unable to appreciate the nature and quality or the
wrongfulness of the acts.” Indeed, his defense at trial hinged on his knowledge
and confidence that he would be apprehended by law enforcement when he


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                   United States v. Roman, No. ACM 39381


tried to meet “Cristina.” Additionally, he described sending the sexually ex-
plicit pictures and videos and communicating sexually explicit language as in-
tentional efforts to “mess with” law enforcement and prove he was smarter
than them. When asked during his testimony what he would have done if a 14-
year-old girl had opened the door, he stated, “I’d turned [sic] around and just
drove [sic] away.”
    Dr. EB, a qualified expert in forensic psychology in well over 100 trials,
conducted extensive preparation prior to her trial testimony. She reviewed
both the NCIS and AFOSI investigative reports, Appellant’s mental health rec-
ords, and the full sanity board report. She interviewed Appellant and his ex-
girlfriend and did her own psychological testing of Appellant. Dr. EB did men-
tion Appellant’s persistent depressive disorder affected his thinking and cog-
nitive processing. But she also concluded this only set him up for self-defeating
behaviors or made him more prone than the average person to engage in such
behavior. Dr. EB’s testimony fell well short of being “some evidence” that Ap-
pellant was unable to appreciate the nature and quality or the wrongfulness of
the acts themselves at the time of the offenses. The military judge had no sua
sponte duty to instruct on lack of mental responsibility.
B. Sentencing Instructions
    Appellant argues the military judge erred by failing to give a sentencing
instruction to not rely on possible action by the convening authority in deter-
mining a sentence. We find no such error.
    As above, we review the adequacy of a military judge’s instructions de novo.
Dearing, 63 M.J. at 482. “The military judge bears the primary responsibility
for ensuring that mandatory instructions . . . are given and given accurately.”
Miller, 58 M.J. at 270. R.C.M. 1005(e)(4) requires the military judge to provide
an instruction “informing the members that they are solely responsible for se-
lecting an appropriate sentence and may not rely on the possibility of any mit-
igating action by the convening or higher authority.”
    In this case, the military judge both orally and in writing instructed the
members: “You must not adjudge an excessive sentence in reliance upon pos-
sible mitigating action by the convening or higher authority.” Additionally, af-
ter the parties presented their sentencing arguments, the military judge pro-
vided oral and written instructions to the members that “you alone are respon-
sible for determining an appropriate sentence in this case.” We find the mili-
tary judge properly instructed the members as required by R.C.M. 1005(e)(4).




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                    United States v. Roman, No. ACM 39381


C. Post-Trial Delay
   1. Additional Background
   On 6 December 2017, the convening authority took action on Appellant’s
case. On 8 January 2018, the case was docketed with this court, 33 days after
convening authority action. The record contains no explanation for the three-
day delay in docketing Appellant’s case.
   2. Law
    In United States v. Moreno, the United States Court of Appeals for the
Armed Forces (CAAF) established a presumption of a facially unreasonable
delay when the record of trial is not docketed with the service court of criminal
appeals within 30 days of the convening authority’s action. 63 M.J. 129, 142
(C.A.A.F. 2006). Where there is such a delay, we examine 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 prevent 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).
    In Moreno, the CAAF identified three types of cognizable prejudice arising
from post-trial processing delay: (1) oppressive incarceration; (2) anxiety and
concern; and (3) impairment of the appellant’s ability to present a defense at a
rehearing. 63 M.J. at 138–39 (citations omitted). Where, as in this case, the
appellant does not prevail on the substantive grounds of his appeal, there is no
oppressive incarceration. Id. at 139 (citation omitted). Similarly, where an ap-
pellant’s substantive appeal fails, his ability to present a defense at a rehearing
is not impaired. Id. at 140. As for anxiety and concern, the CAAF has explained
“the appropriate test for the military justice system is to require an appellant
to show particularized anxiety or concern that is distinguishable from the nor-
mal anxiety experienced by prisoners awaiting an appellate decision.” Id.
   3. Analysis
    In this case, Appellant has not requested relief under Moreno so there is no
assertion that the post-trial delay amounted to a denial of his due process
rights. Similarly, there is no assertion of any particularized anxiety or concern
during the delay between convening authority action and docketing with this
court.



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                   United States v. Roman, No. ACM 39381


    As we find no prejudice and assess the remaining Barker factors as not so
egregious as to undermine confidence in the fairness and integrity of the mili-
tary justice system, we find no violation of Appellant’s due process rights. Rec-
ognizing our authority under Article 66(c), UCMJ, we have also considered
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,
223–25 (C.A.A.F. 2002). After considering the factors enumerated in United
States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264
(C.A.A.F. 2016), we conclude that such an exercise of our authority is not ap-
propriate in this case.

                               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). Accordingly, the find-
ings and sentence are AFFIRMED.


                 FOR THE COURT



                 CAROL K. JOYCE
                 Clerk of the Court




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