           UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                            UNITED STATES

                                                      v.

                            Senior Airman JEFFREY E. BROWN, JR.
                                     United States Air Force

                                                ACM 38497

                                               3 March 2015

         Sentence adjudged 5 September 2013 by GCM convened at Malmstrom
         Air Force Base, Montana. Military Judge: William C. Muldoon.

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

         Appellate Counsel for the Appellant: Captain Michael A. Schrama.

         Appellate Counsel for the United States:          Major Daniel J. Breen;
         Captain Meredith L. Steer; and Gerald R. Bruce, Esquire.

                                                   Before

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           This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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



SANTORO, Judge:

       A general court-martial composed of officer members convicted the appellant,
contrary to his pleas, of sexual assault of an intoxicated and incapacitated victim, and
abusive sexual contact with the same victim, both in violation of Article 120, UCMJ,
10 U.S.C. § 920.1 The adjudged and approved sentence was a dishonorable discharge,
confinement for 1 year, forfeiture of all pay and allowances, and reduction to E-1.

        The appellant asserts as errors: (1) the evidence is legally and factually insufficient
to support his convictions; (2) the military judge abused his discretion by failing to merge
the offenses for sentencing; (3) his sentence is inappropriately severe; (4) unlawful
command influence so permeated the Air Force that it was impossible for the appellant to
receive a fair trial or clemency consideration; (5) he is entitled to relief pursuant to
Article 13, UCMJ, 10 U.S.C. § 813, for illegal pretrial punishment; and (6) the military
judge erred by failing to suppress his statement to law enforcement.2 We disagree and
affirm.

                                                 Background

       In December 2012, the appellant, victim, and other Airmen attended an off-base
party hosted by a member of their security forces flight. Among the attendees were Airman
First Class (A1C) GG, the victim’s good friend, and A1C LB, whom the victim had
previously dated.

      The victim informed his friend, A1C GG, that someone at the party was interested in
him (the victim) but made him uncomfortable. The victim then attempted to identify
A1C LB to A1C GG as the person who made him uncomfortable, but when he did so,
A1C GG mistakenly thought the victim was referring to the appellant. As a result of
A1C GG’s erroneous belief that the appellant made the victim uncomfortable, A1C GG
became more observant of the appellant’s actions during the party.

       The victim drank heavily during the evening, consuming a total of at least 12 shots of
liquor and an uncertain number of beers. Other partygoers assisted him to the bathroom to
vomit on at least one and possibly two occasions. Eventually, the victim either fell asleep or
passed out on a couch on the lower level of the house.

       When A1C GG learned that the victim was having difficulty, he went downstairs to
check on him. He found him lying on an L-shaped couch while the appellant was sitting on
the other end of the couch. Still thinking that the appellant’s presence made the victim
uncomfortable, A1C GG told the appellant not to try anything with the victim and that he
(A1C GG) would be checking on the victim periodically. The appellant assured A1C GG
that he was only talking with the victim.



1
  The charged events took place in December 2012, meaning the appellant was charged and convicted under the current
version of Article 120, UCMJ, 10 U.S.C. § 920, which applies to offenses committed on or after 28 June 2012.
See Manual for Courts-Martial, United States, Part IV, ¶ 45 (2012 ed.).
2
  Issues 3, 4, 5 and 6 are raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).


                                                        2                                            ACM 38497
        On a subsequent visit to check on the victim, A1C GG found the lights in the room
had been turned off. He turned them on and saw that the appellant and victim had their
pants down and both had erections. The appellant was on top of the victim and holding the
victim’s penis in his hand while the victim had his arms crossed over his body and looked
lifeless.

        A1C GG yelled at the appellant and also drew the attention of other partygoers. The
appellant, who had also been drinking heavily that evening, appeared dazed and stumbled as
he walked. After two hours and several other heated discussions, the various attendees went
to different locations and separated for the evening.

       When interviewed by law enforcement, the appellant admitted engaging in oral
sodomy with the victim but said he believed the victim was interested in and consented to
the acts. Conversely, the victim told law enforcement that he did not want to engage in any
sexual activity with the appellant but had a memory of dreaming that his boyfriend (who
was not at the party) was kissing him and that he may have returned the kiss. He
additionally said it was possible he may have pushed what he believed was his boyfriend’s
head toward his own genitalia, also thinking it was a dream.

       For this conduct, the appellant was charged with sexual assault for engaging in oral
sodomy with the victim and with abusive sexual contact for touching the victim’s penis,
while the victim was incapable of consenting due to impairment by alcohol, a condition the
appellant knew or reasonably should have known of.

       Additional facts necessary to resolve the assigned errors are included below.

                                Legal and Factual Sufficiency

        We review issues of factual and legal sufficiency de novo. Article 66(c), UCMJ,
10 U.S.C. § 866(c); 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 accused’s guilt beyond a reasonable doubt.” 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. 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).

       As he did at trial, the appellant argues that he made an honest and reasonable mistake
of fact in believing that the victim consented to the sexual activity. The military judge
instructed the panel that the appellant must have actually believed the victim consented and


                                               3                                    ACM 38497
that belief must be objectively reasonable––to a sober person––under the circumstances and
that the Government bears the burden of disproving mistake of fact beyond a reasonable
doubt. See United States v. Cooper, ACM 38293 (A.F. Ct. Crim. App. 2014).3

       We have reviewed and considered the entire record of trial. We have considered the
appellant’s arguments, including the testimony of the Government’s expert witness
concerning whether the victim’s alcohol-induced, or “fragmentary,” blackout would have
been apparent to the appellant. The overwhelming weight of the evidence is that nothing the
victim did or said could objectively be considered an indication that he wanted him to
engage in sodomy or other sexual activity. We further conclude that a reasonable sober
person would have known, or reasonably should have known, that the victim was
incapacitated and unable to consent to sexual activity. Moreover, although the victim may
have unconsciously returned the appellant’s kiss, we find that no reasonable sober person
would have believed that the victim was consenting under the circumstances. Finally, the
implausibility of the appellant’s ability to recall details of the evening’s events other than
how the sexual activity began convinces us of the appellant’s guilt beyond a reasonable
doubt.

       We have considered the evidence in the light most favorable to the prosecution. We
have also made allowances for not having personally observed the witnesses. Having paid
particular attention to the matters raised by the appellant, we find the evidence factually and
legally sufficient to support his convictions for sexual assault and abusive sexual contact.

                                 Unreasonable Multiplication of Charges

       The appellant next argues that the military judge abused his discretion when he failed
to sua sponte merge the two specifications for sentencing. “[W]hat is substantially one
transaction should not be made the basis for an unreasonable multiplication of charges”
against an accused. Rule for Courts-Martial 307(c)(4). By not raising this issue at trial,
appellant has forfeited his right to relief on appeal absent plain error. See United States v.
Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009); United States v. Butcher, 56 M.J. 87, 93
(C.A.A.F. 2001). See also Article 59(a), UCMJ, 10 U.S.C. §859(a). Plain error occurs
when there is error, the error is plain or obvious, and the error results in material prejudice
to a substantial right of appellant. United States v. Maynard, 66 M.J. 242 (C.A.A.F. 2008).

       We find no error here, plain or otherwise. The appellant argues, without citation to
any evidence in the record, that “[m]ost likely the Appellant was stimulating [the victim’s]
penis with his hand” during the oral sodomy. While that may be true, the evidence also
established that A1C GG personally observed the appellant’s hand on the victim’s penis at a
time other than when the sodomy was occurring. Thus, we cannot conclude that the
3
  The former version of Article 120, UCMJ, 10 U.S.C. § 920, specifically noted that for a mistake of fact belief to be
reasonable, it “must be that which a reasonably careful, ordinary, prudent, sober adult would have had.” Manual for
Courts-Martial, United States, A28-5, ¶ 45.a.(t)(16) (2012 ed.).


                                                          4                                            ACM 38497
evidence establishes the specifications embrace conduct that occurred in a single
transaction.

       Moreover, even had the military judge granted the relief the appellant belatedly
seeks, evidence that the appellant touched the victim’s penis at a time other than when he
was actively engaging in sodomy would still have been before the members when they
determined an appropriate sentence. Merging the specifications would have reduced the
maximum imposable confinement from 37 years to 30 years—still exponentially above the
adjudged and approved sentence of confinement for 1 year. Having considered the factors
elucidated in United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001), we conclude the
military judge did not err by failing to merge the specifications for sentencing.

                                      Sentence Severity

       This court reviews sentence appropriateness de novo. United States v. Lane, 64 M.J.
1, 2 (C.A.A.F. 2006); United States v. Baier, 60 M.J. 382, 383–84 (C.A.A.F. 2005). We
“may affirm only such findings of guilty and the sentence or such part or amount of the
sentence, as [we find] correct in law and fact and determine[], on the basis of the entire
record, should be approved.” Article 66(c), UCMJ. We assess sentence appropriateness by
considering the appellant, the nature and seriousness of the offenses, the appellant’s record
of service, and all matters contained in the record of trial. United States v. Snelling, 14 M.J.
267, 268 (C.M.A. 1982); United States v. Bare, 63 M.J. 707, 714 (A.F. Ct. Crim. App.
2006), aff’d, 65 M.J. 35 (C.A.A.F. 2007).

       While we have a great deal of discretion in determining whether a particular sentence
is appropriate, we are not authorized to engage in exercises of clemency. United States v.
Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999); United States v. Healy, 26 M.J. 394, 395–96
(C.M.A. 1988). The maximum imposable sentence was a dishonorable discharge and
confinement for 37 years. The approved sentence of a dishonorable discharge and
confinement for 1 year was clearly within the discretion of the convening authority.

       Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), the appellant
argues that the dishonorable discharge is inappropriately severe because his “career reflects
his dedication and quality of service” and because his duties as a security forces Airman
protected lives and prevented harm to Air Force resources. We have given individualized
consideration to this appellant and the evidence in the record. We have no difficulty
concluding that a sentence which includes a dishonorable discharge is not inappropriate for
this appellant who sexually assaulted a fellow Airman while that Airman was incapacitated
and unable to defend himself.




                                               5                                    ACM 38497
                                Unlawful Command Influence

        Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), the appellant
alleges that apparent unlawful command influence so permeated the Air Force at the time of
his trial that it was impossible for him to receive a fair trial or clemency consideration. The
appellant asked the military judge to dismiss all charges on this same basis. In denying the
motion, the military judge made extensive findings of fact which are not challenged on
appeal, are not clearly erroneous, and which we adopt as our own.

        Article 37(a), UCMJ, 10 U.S.C. § 837(a), states: “No person subject to this chapter
may attempt to coerce or . . . influence the action of a court-martial or any other military
tribunal or any member thereof, in reaching the findings or sentence in any case . . . .” The
mere appearance of unlawful command influence may be “as devastating to the military
justice system as the actual manipulation of any given trial.” United States v. Ayers, 54 M.J.
85, 94–95 (C.A.A.F. 2000) (quoting United States v. Allen, 33 M.J. 209, 212 (C.M.A.
1991)) (internal quotation marks omitted).

       On appeal, the accused bears the initial burden of raising unlawful command
influence. United States v. Sayler, 72 M.J. 415, 423 (C.A.A.F. 2013). He must show:
(1) facts, which if true, constitute unlawful command influence; (2) that the proceedings
were unfair; and (3) that the unlawful command influence was the cause of the unfairness.
Id. The initial burden of showing potential unlawful command influence is low but is more
than mere allegation or speculation. United States v. Stoneman, 57 M.J. 35, 41 (C.A.A.F.
2002). The quantum of evidence required to raise unlawful command influence is “some
evidence.” Id. Once an issue of unlawful command influence is raised by some evidence,
the burden shifts to the Government to rebut an allegation of unlawful command influence
by persuading the court beyond a reasonable doubt that: (1) the predicate facts do not exist;
(2) the facts do not constitute unlawful command influence; or (3) the unlawful command
influence did not affect the findings or sentence. United States v. Biagase, 50 M.J. 143, 150
(C.A.A.F. 1999).

       Where, as here, the issue is litigated on the record at trial, the military judge’s
findings of fact are reviewed under a clearly-erroneous standard but the question of
command influence flowing from those facts is a question of law that this court reviews
de novo. United States v. Villareal, 52 M.J. 27, 30 (C.A.A.F. 1999).

        The appellant’s argument at trial was focused in large part on various comments by
officials including the President of the United States, the Secretary of Defense, and other
Air Force senior leaders. Notably, none of the comments at issue were made by anyone
directly involved in the appellant’s court-martial. The military judge initially ruled that the
defense had failed to meet its burden to establish facts which, if true, amounted to unlawful
command influence. Instead, he treated the issue as one to be handled during the voir dire
process. The military judge further noted that he would apply the actual and implied bias


                                               6                                   ACM 38497
standards and the liberal grant mandate when ruling on challenges for cause. After voir
dire, the military judge made a written ruling on the defense’s motion and noted that there
were no challenges for cause relating to potential unlawful command influence. He then
found beyond a reasonable doubt that there was no actual or apparent unlawful command
influence.

        On appeal, the appellant does not challenge any of the military judge’s findings of
fact, including the finding beyond a reasonable doubt that there was no impact from any of
the statements made by the senior officials. Instead, the appellant invites us to “consider[]
all of the attachments to the defense motion to dismiss.”

       We have ourselves reviewed the entire record, including the comments made by the
senior officials and the members’ responses during the voir dire process. The military
judge’s findings of fact are amply supported by the record. We need not reach the question
of whether the defense met its initial burden of production of evidence, as the military judge
found beyond a reasonable doubt––and we agree––that the statements at issue had no
impact on the appellant’s trial. Furthermore, an objective, disinterested, reasonable member
of the public, fully informed of all the facts and circumstances, would not harbor a
significant doubt about the fairness of the appellant’s court-martial proceeding. See United
States v. Lewis, 63 M.J. 405, 415 (C.A.A.F. 2006). We find beyond a reasonable doubt that
the case was not infected by actual or apparent unlawful command influence.

                                 Illegal Pretrial Punishment

        Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), the appellant
contends he was subjected to illegal pretrial punishment when he was placed in pretrial
confinement after a separate sexual assault allegation was made against him. Specifically,
he asserts that he was placed into pretrial confinement on 27 February 2013 based on an
allegation that he sexually assaulted another Airman and was released on 10 April 2013
after passing a polygraph examination concerning that offense. Pursuant to United States v.
Allen, 17 M.J. 126 (C.M.A. 1994), the military judge awarded the appellant day-for-day
credit against his sentence to confinement for the time he was in pretrial confinement.

       Article 13, UCMJ, 10 U.S.C. § 813, prohibits pretrial punishment:

                  No person, while being held for trial, may be subjected to
              punishment or penalty other than arrest or confinement upon the
              charges pending against him, nor shall the arrest or confinement
              imposed upon him be any more rigorous than the circumstances
              require to insure his presence, but he may be subjected to minor
              punishment during that period for infractions of discipline.




                                              7                                   ACM 38497
This article prohibits two types of activities: the imposition of punishment or penalty before
trial and conditions of confinement that are more rigorous than necessary to ensure the
accused’s presence at trial. United States v. McCarthy, 47 M.J. 162, 165 (C.A.A.F. 1997).

       During a presentencing session, the military judge specifically asked both the
appellant and his trial defense counsel whether they believed the appellant had been
subjected to any Article 13, UCMJ, violations. Trial defense counsel responded
unequivocally “no.” The appellant asked the military judge to explain Article 13, UCMJ,
and illegal pretrial punishment. The military judge correctly advised the appellant of the
Article 13, UCMJ, requirements, following which the appellant himself told the military
judge that he had not been subjected to illegal pretrial punishment.

       The appellant has waived appellate review of this claim. Gladue, 67 M.J. at 313.4
The appellant was certainly aware in September 2013, when he told the military judge that
he had not been subjected to illegal pretrial punishment, of the events which he now claims
violated Article 13, UCMJ. The appellant has not presented any evidence that his statement
to the military judge was not made knowingly or intelligently.


       Assuming arguendo the appellant either did not waive the issue or that his waiver
should be tested for plain error, we find no error. The appellant bears the burden of
persuasion and has identified no evidence that supports a claim that his pretrial confinement
was in violation of the Rules for Courts-Martial or was intended as punishment.

                               Suppression of Statement to Law Enforcement

       Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), the appellant
next asserts that his admission to engaging in oral sodomy was insufficiently corroborated
and therefore inadmissible against him.

       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))
4
  We recognize that our superior court in United States v. Inong, 58 M.J. 460, 465 (C.A.A.F. 2003), held that failure at
trial to seek sentence relief for violations of Article 13, UCMJ, 10 U.S.C. § 813, waives that issue on appeal absent plain
error. However, as subsequent case law has clarified, it is forfeiture that is tested for plain error; waiver is not. See e.g.,
United States v. Sousa, 72 M.J. 643, 651–52 (A.F. Ct. Crim. App. 2013). In this case, because the appellant
affirmatively denied being subject to pretrial punishment, as opposed to standing mute or having the issue not
discussed, the issue was waived and need not be tested for plain error.


                                                              8                                                ACM 38497
(alteration in original). “The military judge alone shall determine when adequate evidence
of corroboration has been received.” Mil. R. Evid. 304(g)(2).

        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 appellant argues that because the victim did not recall the oral sodomy, the
admission was uncorroborated and therefore inadmissible. The military judge noted that
when A1C GG returned to the room to check on the victim, he found the door closed and
the lights off, when the door had previously been open and the lights on; A1C GG found the
appellant and victim unclothed from the waist down with their erect penises exposed and the
victim apparently passed out; and the appellant’s DNA was present on the victim’s boxer
shorts, belt, and jeans. The military judge concluded that the evidence placed the appellant
“in the right place and at the right time with an alleged victim and [in] the right state of
undress and arousal.” The military judge further noted that the only thing missing was an
actual eyewitness; he then found sufficient corroboration and denied the motion to suppress.

       We conclude, as did the military judge, that there was sufficient corroboration of the
essential facts of the appellant’s admission. The appellant cites no authority for the
proposition that a victim must recall an assault for a confession to be admissible. Under the
circumstances of this case, the presence of the appellant’s DNA on the victim’s boxer shorts
and their states of arousal were highly suggestive of sexual activity. We hold the military
judge did not abuse his discretion in admitting the appellant’s statement.

                                        Conclusion

       The approved findings and sentence are correct in law and fact, and no error
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




                                              9                                  ACM 38497
