         U NITED S TATES N AVY –M ARINE C ORPS
             C OURT OF C RIMINAL A PPEALS
                        _________________________

                            No. 201600084
                        _________________________

                 UNITED STATES OF AMERICA
                                 Appellee
                                     v.
                     BRIAN C. CHRISTOPHER
 Cryptologic Technician (Networks) Second Class (E-5), U.S. Navy
                             Appellant
                       _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

    Military Judge: Commander Marcus N. Fulton, JAGC, USN.
  Convening Authority: Commandant, Naval District Washington,
                   Washington Navy Yard, D.C.
  Staff Judge Advocate’s Recommendation: Commander James A.
                         Link, JAGC, USN.
For Appellant: Philip D. Cave, Esq.; Lieutenant Doug R. Ottenwess,
                            JAGC, USN.
 For Appellee: Lieutenant Commander Justin C. Henderson, JAGC,
          USN; Lieutenant Robert J. Miller, JAGC, USN.
                      _________________________

                      Decided 12 September 2017
                       _________________________

    Before G LASER -A LLEN , M ARKS , and J ONES , Appellate Military
                                 Judges
                         _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
                     _________________________

   JONES, Judge:
   At a contested general court-martial, officer members convicted the
appellant of one specification each of sexual assault, indecent visual
recording, and assault consummated by a battery, violations of Articles 120,
                     United States v. Christopher, No. 201600084


120c, and 128, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920,
920c, and 928 (2012). The convening authority approved the adjudged
sentence of confinement for one year, forfeiture of all pay and allowances,
reduction to pay grade E-1, and a bad-conduct discharge.1
    The appellant raises nine original assignments of error (AOEs): (1) he was
deprived of his counsel of choice; (2) the military judge erred in instructing
the members on the standard of proof required for conviction; (3) his
conviction for indecent visual recording is factually insufficient; (4) his
conviction for sexual assault is factually insufficient; (5) his conviction for
assault consummated by a battery is factually insufficient; (6) the military
judge erred in not instructing the members on self-defense regarding the
assault consummated by a battery offense; (7) the military judge should have
recused himself after exhibiting frustration with the civilian trial defense
counsel in front of the members; (8) ineffective assistance of counsel
prevented a fair trial; and (9) the military judge abused his discretion by
preventing use of MILITARY RULE OF EVIDENCE (MIL. R. EVID.) 412, MANUAL
FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) evidence to impeach the
sexual assault victim.2 The appellant also raises a supplemental AOE: the
military judge erred in instructing the members that mistake of fact as to
consent was not available to the appellant unless he reasonably believed that
at the time of the conduct at issue the victim consented.3
    In a declaration, separate from his brief, the appellant further argues: (A)
his Article 32, UCMJ, hearing was defective, leading to improper referral of
charges to trial, where the military judge erred in granting no relief; (B) the
military judge erred in failing to order a deposition of the complaining
witness; (C) the trial counsel violated discovery rules and Article 46, UCMJ;
(D) the record of trial is incomplete and inaccurate; (E) the military judge’s
frustration with the civilian defense counsel prevented a fair trial; and (F) his
lawyers failed to represent him properly, which caused the military judge to
exhibit prejudicial frustration.4
   Having carefully considered the record of trial and the parties’
submissions, we conclude the findings and sentence are correct in law and



    1The appellant was found not guilty of three charges involving ND—one
specification of sexually assaulting her by forcible penile penetration, and two
specifications of assault consummated by a battery.
    2   AOEs 7-9 are raised pursuant to United States v. Grostefon, 12 M.J. 431 (1982).
    3   Raised pursuant to Grostefon, 12 M.J. at 431.
    4Appellant’s Motion to Attach of 28 Sep 2016, Appellant’s Declaration of 27 Sep
2016 (Appellant’s Declaration).

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                    United States v. Christopher, No. 201600084


fact and find no error materially prejudicial to the appellant’s substantial
rights. Arts. 59(a) and 66(c), UCMJ.
                                    I. BACKGROUND
    The appellant and his girlfriend, ND, practiced “Bondage, Dominance,
[and] Sadomasochism” (BDSM) that involved “scenes” of sexual spanking,
role-playing, and sadism.5 A written contract guided their BDSM practice,
and one of ND’s rules from early in the relationship was “[n]o penetration of
[her] butt”—although she later consented twice to anal sex with the appellant
and also tried “anal training” with sex implements.6 A third anal penetration
occurred outside of a BDSM scene context, without ND’s consent, after ND
returned home from a party. The appellant was upset at her and repeatedly
digitally penetrated her anus, despite ND’s pleas to stop. On another occasion
outside of a BDSM scene, in response to ND biting his back during an
argument, the appellant bit her, causing a large lump and bruise visible in a
photograph taken a week later.7
    The appellant met another sexual partner, KW, online. For their first
actual meeting, they arranged to have sex at a motel. Without her knowledge,
the appellant filmed KW while she was in the motel parking lot, as she
walked upstairs to their room, and while they were having sex. When KW
discovered the hidden camera and confronted the appellant, he complied
with her demands to delete the video of their sexual intercourse. KW then
told the appellant to leave her alone and left the motel room.
    At his Article 32, UCMJ, preliminary hearing, the appellant was
represented by a civilian defense counsel and his detailed defense counsel,
Lieutenant (LT) JC. After charges were referred to trial, but before his
arraignment, the appellant filed a pretrial motion to disqualify various
counsel, citing LT JC’s marriage with the acting senior trial counsel, LT
MVC, who had been screened from the appellant’s case. When the appellant
refused to waive the apparent conflict of interest of LT JC’s representation,
the military judge granted LT JC’s request to withdraw. The defense then
indicated they were going to put in an individual military counsel (IMC)
request for LT JT to join the defense team but the civilian defense counsel
subsequently withdrew the request for LT JT before it could be approved. LT
MCC was detailed to represent the appellant, and he did so, through the
entire trial, including the submission of post-trial matters.



   5   Record at 755-59, 763, 775, 777, 859.
   6   Id. at 760, 810-11, 818, 1186.
   7   Id. at 773, 949-50, 955, 1190.

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                     United States v. Christopher, No. 201600084


    The defense team litigated more than a dozen additional pretrial motions,
including motions to dismiss, to gain access to witnesses and evidence, and,
significantly, the appellant’s renewed motion to disqualify the entire trial
service office. The military judge invited further briefs on disqualifying the
prosecutors and heard testimony from the former acting senior trial counsel,
LT MVC. At no time did the appellant ever request LT JC’s reassignment to
his defense team. Noting the appellant was now “represented by conflict-free
counsel,” and that LT MVC “was properly screened off from participation in
th[e] case” the military judge denied the motion to disqualify the Region
Legal Service Office (RLSO) Trial Department from prosecuting the case.8
    The military judge also denied the defense MIL. R. EVID. 412 motion to
use videos and photographs of ND’s consensual anal sexual activity with the
appellant. However, the defense was permitted to cross-examine ND on, inter
alia, her use of a safe word, her consensual anal sex with the appellant, and
the consensual use of force during their BDSM activities.
                                    II. DISCUSSION
   We have fully considered and summarily reject AOEs (2), (7), and A-F.9
A. Deprivation of counsel of choice
   LT MVC—the wife of the appellant’s original detailed counsel, LT JC—
was assigned as a prosecutor on his case from November 2014 until May
2015, leaving the case before the referral of any charges. In his motion
requesting that LT MVC’s entire office be disqualified from prosecuting his
case, the appellant discussed the implications of the marriage between LT
MVC and his detailed defense counsel’s ability to represent him:
             The undeniable fact is Lieutenant [JC] could easily be
         placed in a position where his professional success could come
         at significant personal peril. It could easily be fathomed [sic] a
         situation where Lieutenant [JC] could be subliminally
         influenced to ensure the professional success of his spouse. Of
         course, [the appellant] can be briefed of these concerns and can
         waive the apparent conflict.10
   At arraignment, on 10 July 2015, LT JC explained the situation to the
military judge:
            There is an apparent conflict with my representation of [the
         appellant] because my wife, [LT MVC], works at Region Legal

   8   Appellate Exhibit (AE) CXXXVII at 3.
   9   United States v. Clifton, 35 M.J. 79 (C.M.A. 1992).
   10   AE V at 4.

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                       United States v. Christopher, No. 201600084


         Service Office temporarily as Acting Senior Trial Counsel. I
         believe that is a waivable conflict. However, my co-counsel has
         filed a motion to argue that it is an actual conflict. And because
         of that motion, I believe there is now an actual conflict where I
         cannot zealously and ethically argue that motion. And so, I ask
         the court’s permission to be released.11
    When the appellant refused to waive LT JC’s conflict of interest, the
military judge granted the request to release LT JC, explaining, “based upon
[LT JC’s] representation to the court over his concern of an apparent conflict,
I have released him from this case.”12 The appellant indicated that he
understood. The appellant then told the military judge that he was in the
process of requesting representation by an IMC, LT JT. The military judge
said he would address the IMC issue and any request to reassign LT JC to
the case at the next court session. The appellant said he was “okay with”
proceeding with his civilian defense counsel as his sole legal representative
for the arraignment.13
    On 13 July 2015—three days after the arraignment and LT JC’s
withdrawal as counsel—a lieutenant commander replaced LT MVC as the
senior trial counsel. LT JC was not reassigned to the case after the change in
his wife’s capacity within the RLSO.
    On 21 July 2015, the military judge—via email—attempted to run to
ground the request for IMC, and also ensure a detailed defense counsel had
been assigned to represent the appellant. On 22 July 2015, the civilian
defense counsel emailed to all parties that “To be clear, the IMC motion is
withdrawn.”14 At the next court session, the civilian defense counsel orally
withdrew the appellant’s request for LT JT as an IMC, and LT MCC entered
his appearance as the new detailed trial defense counsel.15


   11   Record at 6.
   12   Id. at 12.
   13   Id. at 14.
   14   Appellant’s Declaration at Attachment A3.
   15 The appellant argues on appeal that his IMC request for LT JT was never
formally denied, and the record is unclear whether his civilian defense counsel
withdrew the request with his knowing consent. Although the reasons for the
withdrawal are not in the record, emails by the civilian defense counsel suggest that
he was ascertaining whether the appellant could petition his representation as an
IMC, while the civilian defense counsel was doing his active duty time as a reservist
in the U.S. Army. The civilian defense counsel indicated that if he was mobilized,
“the Accused has stated he will IMC me. It would be met with approval from my
chain of command. However, if [Lt JT] is approved then he can’t submit for me.” Id.,

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                    United States v. Christopher, No. 201600084


   Each accused is entitled to representation by detailed military defense
counsel. Art. 38, UCMJ. An existing relationship with detailed defense
counsel may be severed “by the military judge upon application for
withdrawal by the defense counsel for good cause shown,” in accordance with
RULE FOR COURTS-MARTIAL (R.C.M.) 506(c), MANUAL FOR COURTS-MARTIAL,
UNITED STATES (2012 ed.). Any “significant risk that the representation of
one or more clients will be materially limited . . . by a personal interest of the
covered attorney” results in a conflict of interest for Navy attorneys:
             A pre-existing personal, professional, or commercial
         relationship with any other party, witness, judge, or attorney—
         whether pre-existing the client’s proceeding or contemplated
         during the course of a proceeding—involved in a proceeding
         creates a strong appearance of a potential conflict of interest
         that must be disclosed to the client to permit the client to make
         an informed decision regarding the potential conflict of
         interest.16
   Upon discovering a conflict, a defense counsel must notify the military
judge. United States v. Lee, 70 M.J. 535, 541 (N-M. Ct. Crim. App. 2011). If
an accused declines to waive the conflict, the military judge may release the
counsel or consider other remedies. Id.
    The appellant’s motion to disqualify the RLSO Trial Department properly
notified the military judge of LT JC’s potential conflict. LT JC initially
identified the issue as an apparent conflict which could have been waived by
the appellant. But then—citing the civilian defense counsel’s motion—LT JC
admitted he was unable to “zealously and ethically” advocate “that motion”
for the appellant in light of his client’s claim that he was “an improper
participant” incapable of providing effective representation.17 The appellant
made an informed decision that he no longer wanted LT JC to represent him.
The military judge confirmed that the appellant was unwilling to waive the
conflict of interest before he properly granted the good cause withdrawal
request of LT JC, pursuant to R.C.M. 506(c). We find no merit in a claim
where the appellant asserts his detailed defense counsel was incapable of
effectively representing him but then refused to acquiesce to his release by
the military judge.
   Assuming, arguendo, the military judge’s severance of LT JC was in error,
the appellant is still required to “establish that the error[s] produced

at Attachment C1. The appellant made no objection at trial when his civilian defense
counsel orally withdrew the IMC request for LT JT.
   16   JAGINST 5803.1E, Rule 1.7 ¶¶ a and c(5) (20 Jan 2015).
   17   Record at 6; AE V at 4.

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                   United States v. Christopher, No. 201600084


material prejudice to [his] substantial rights[.]” United States v. Hutchins, 69
M.J. 282, 292 (C.A.A.F. 2011) (citing Art. 59(a), UCMJ, 10 U.S.C. § 859(a)
(2012) (additional citation omitted)). See also United States v. Wiechmann, 67
M.J. 456 (C.A.A.F. 2009); United States v. Rodriguez, 60 M.J. 239 (C.A.A.F.
2004). The appellant fails to meet this burden.18
    The appellant was at all times—including during the Article 32, UCMJ,
preliminary hearing—represented by the same civilian defense counsel. The
appellant points to no “issues under the initial responsibility of [LT JC that]
involved matters of fact or law in which he had unique knowledge or
expertise beyond that which could be gained through routine preparation” by
LT MCC, his replacement as detailed defense counsel. Hutchins, 69 M.J. at
292. Likewise, the appellant points to nothing unique about LT JT—the IMC
requested and then withdrawn—showing that he had some specialized
knowledge or expertise essential to the case. There was no government
interference with the appellant’s right to counsel; the defense’s own
disqualification motion and withdrawal of the IMC request orchestrated
which attorneys remained on the defense team.
    Despite the appellant’s claims on appeal that he wanted LT JC to resume
representing him after the initial motions session, and that he wanted LT JT
to represent him as an IMC, we find no material prejudice to a substantial
right of the appellant.
B. Factual sufficiency of the convictions
    The appellant challenges the factual sufficiency of his convictions. We
review questions of factual sufficiency de novo. Art. 66, UCMJ; United States
v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The test for factual
sufficiency is whether, “after weighing all the evidence in the record of trial
and recognizing that we did not see or hear the witnesses as did the trial
court, this court is convinced of the appellant’s guilt beyond a reasonable
doubt.” United States v. Rankin, 63 M.J. 552, 557 (N-M. Ct. Crim. App. 2006)

    18 We decline the appellant’s invitation to find structural error. “Structural errors
involve errors in the trial mechanism so serious that a criminal trial cannot reliably
serve its function as a vehicle for determination of guilt or innocence. . . . There is a
strong presumption that an error is not structural. The Supreme Court has
recognized two tests for structural error: (1) when a court is faced with the difficulty
of assessing the effect of the error . . . and (2) when harmlessness is irrelevant[.]”
United States v. Brooks, 66 M.J. 221, 224 (C.A.A.F. 2008) (citations and internal
quotation marks omitted). We have no difficulty assessing any error’s lack of effect on
the right to counsel of choice in this case, and we adhere to Hutchins’ material
prejudice test. But cf. United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) (holding
denial of counsel of choice is not subject to harmless error analysis because of the
difficulty in assessing the effect of the error in light of the many unquantifiable and
indeterminate variables involved in representation).

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                    United States v. Christopher, No. 201600084


(citing Unted States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987) and Art. 66(c),
UCMJ), aff’d on other grounds, 64 M.J. 348 (C.A.A.F. 2007). 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. While this is a high standard, the phrase
“beyond a reasonable doubt” does not imply that the evidence must be free
from conflict. Rankin, 63 M.J. at 557 (citation omitted).
   1. Sexual assault of ND
    To convict the appellant of sexual assault, the government had to prove
beyond a reasonable doubt that: (1) the appellant committed a sexual act
upon ND, to wit: penetration of her anus with his finger; and (2) he did so by
causing bodily harm to ND, to wit: throwing her down onto the bed and using
his body to hold her down.19
    The appellant’s and ND’s relationship included both pretend and real
violence, as they engaged in their BDSM lifestyle. However, ND claimed that
the appellant penetrated her anus with his finger on one occasion outside of a
BDSM scene context. She testified that he bound her hands behind her back,
forced her face-down onto a bed, and questioned her about what she had done
at a party she had attended. Dissatisfied with her answers, he repeatedly
digitally penetrated her anus. ND’s pleaded with him to stop and even used
her safe word, even though the appellant’s actions were not part of a scene.
On appeal, the appellant renews his trial contention that his digital
penetration of ND’s anus was “consensual and for which [the a]ppellant had a
mistaken belief” that she consented.20
    The parties agreed that ND did not consent to any anal penetration at the
beginning of their relationship. However, at some point, ND did consent twice
to anal sex with the appellant and also tried “anal training” with sex
implements. ND was inconsistent in her pretrial and trial testimony
regarding if she had consented to anal penetration—by object or by the
appellant’s person—prior to the forced digital penetration of her anus. In
response to a member’s question regarding the timing, ND responded, “The
forceful anal penetration happened before any of my consensual anal
penetrations with him.”21 However, in response to a cross-examination
question later in the trial regarding whether any consensual anal intercourse


   19   Record at 1304; AE CXXIV at 4; 10 U.S.C. § 920(b)(1)(B) (2012).
   20   Appellant’s Brief of 28 Sep 2016 at 36.
   21   Record at 876.

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                       United States v. Christopher, No. 201600084


could have occurred prior to non-consensual digital penetration, she replied,
“I don’t know, it could have, it might not have.”22 The appellant avers the
charge is factually insufficient due primarily to this inconsistent testimony.
    This inconsistency, however, is not fatal to the government’s case. The
crux is whether the appellant put his finger in ND’s anus by causing bodily
harm, on this particular occasion, and in this regard, there is sufficient
evidence to uphold the conviction. ND testified at length that this episode
was not part of a BDSM scene between the two paramours; rather it was part
of a vengeful and forceful interrogation about her whereabouts and activities.
She explained how he threw her on the bed, forcefully held her down with his
body weight, and then digitally penetrated her anus repeatedly when her
answers were not to his liking.
    The appellant’s strongest argument—that they had engaged in
consensual anal penetration prior to the incident so she must have consented
on this occasion—misses the point: prior anal penetration does not equate to
consent on this particular occasion. We reject the appellant’s mistake of fact
as to consent defense.23 Although there was some inconsistency in her
testimony regarding exactly when she used her “safe word” to try to get the
appellant to stop forcibly penetrating her, her use of the word “only further
cemented the absence of mistake” by the appellant.24 Admittedly, ND’s
testimony was not free from conflict. However, even where conflicts in the
evidence exist, we may give ND’s credibility greater weight on some topics
than others. United States v. Lepresti, 52 M.J. 644, 648 (N-M. Ct. Crim. App.
1999). This incident was not part of a BDSM scene; it occurred because the
appellant was angry at ND. We are convinced beyond a reasonable doubt that
the appellant is guilty of sexually assaulting her.
   2. Assault consummated by a battery on ND
    To convict the appellant of assault consummated by a battery, the
government had to prove beyond a reasonable doubt: (1) that the appellant
did bodily harm to ND; (2) that he did so by unlawfully holding ND down and
biting her leg with his mouth; and (3) that the bodily harm was done with
unlawful force or violence.25


   22   Id. at 1185.
    23 Although not dispositive, it is instructive that the members returned a not

guilty verdict on a charge of forcible vaginal penetration wherein the safe word was
not used by ND, and for which the defense of mistake of fact as to consent was also at
issue.
   24   Appellee’s Brief of 25 Jan 2017 at 29.
   25   Record at 1308; AE CXXIV at 6; 10 U.S.C. § 928(a) (2012).

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                      United States v. Christopher, No. 201600084


    ND testified that she and the appellant got into an argument after he led
her to believe scratches on his back were “from a partner that he had
promised that he wasn’t going to be seeing.”26 She got angry, and bit him on
his shoulder blade. The appellant then grabbed her, forced her onto a bed,
and bit her thigh hard enough to cause ND “excruciating pain” and a large
lump and bruise visible in a photograph taken a week later.27 ND testified
that this bodily harm was not part of their BDSM lifestyle and was done
without her consent.28
    ND admitted, in response to a member’s question, that the appellant bit
her “immediately” after she bit him. The appellant now argues, for the first
time on appeal, that his bite should be excused as a rational reaction of self-
defense. We reject the notion that the appellant was acting in self-defense
when he overpowered ND, took her to the bed, held her down, and bit her so
hard—like a horse bite—that he left a large bruise on her thigh.29 Biting was
not permitted in their BDSM contract. Even assuming, arguendo, biting was
part and parcel of their BDSM lifestyle, granting consent for physical harm
on one occasion does not equate to granting consent on any other occasion.
The appellant was not justified in using such extreme force. He was not
acting in self-defense to protect himself from ND when he bit her with
disproportionate force; he did so in retaliation and anger. The photographic
evidence of the severity of the bite is powerful, as the large bruise was readily
visible a week later.
    We have carefully considered the defense’s testimonial evidence that ND
could be violent if she was agitated, and that the appellant was “typically
fairly peaceful, quite reserved.”30 However, this type of testimony is of
negligible value when evaluating consent in a relationship involving so much
consensual violence. On the whole, we are convinced beyond a reasonable
doubt of the appellant’s guilt.
   3. Indecent visual recording of KW
   To convict the appellant of indecent visual recording, the government had
to prove beyond a reasonable doubt: (1) that the appellant knowingly
recorded the private area of KW; (2) that he did so without the consent of
KW; (3) that under the circumstances at the time of the charged offense, KW

   26   Record at 1189.
   27   Id. at 773, 949-50, 955, 1190.
   28 Id. at 779. Choking was part of their BDSM lifestyle. Id. However, the
appellant was acquitted of choking ND.
   29   Id. at 773.
   30   Id. at 906.

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                    United States v. Christopher, No. 201600084


had a reasonable expectation of privacy; and (4) that the appellant’s conduct
was wrongful.31
    KW agreed to have sex with the appellant at a motel. Without her
knowledge, he mounted the camera underneath a television facing the bed
and filmed KW entering the room, disrobing, and having sexual intercourse
with him on the bed. He never sought or received KW’s consent for the
recording. When KW first noticed the camera, she panicked, grabbed it, saw
it was still recording, and reviewed the recording to learn her actions for
approximately the previous twenty minutes were captured on it—as well as a
separate, short video clip of her in the parking lot. She also found screenshots
on the camera that appeared to be sexual videos involving other women. KW
was angry and demanded that the appellant delete the video of their sexual
intercourse. KW then immediately left the motel.
   In a series of text messages, the appellant later apologized to her:
             I deleted it, I apologized, I didn’t try to hide it, there are no
         others, I wasn’t right. I was thinking stupidly. I AM sorry and
         not just saying it, I feel rotten, I wish I knew how to right this
         ...
            I thought you’d like it. Again, I would like to point out I
         didn’t exactly hide it at all. I thought you’d find it a pleasant
         surprise to be able to see our sexy time from another point of
         view. It didn’t occur to me you would be pissed. I understand
         now why, and I get the feeling you’ve had a bad experience in
         the past with stuff like this[.] But realistically, it was obvious I
         didn’t have malicious intent. I explained it was a mistake and
         I’m sorry and I’ve said I’m sorry and I had no problem deleting
         the video in front of you. . . .32
    The appellant also admitted to another friend—who testified at trial—
that he had secretly filmed the sexual encounter with KW and that he knew
it was wrong.
    On appeal, the appellant renews his trial arguments that KW had a bad
memory and a motive to lie because the appellant was not a faithful partner
to her. We reject these arguments; they run counter to KW’s testimony and
the appellant’s repeated admissions.
    The appellant also claims that because KW never testified to seeing her
“private area” depicted in the video, the guilty finding is factually


   31   Id. at 1298-99; AE CXXIV at 1; 10 U.S.C. § 920c(a) (2012).
   32   Prosecution Exhibit 4 at 2-6.

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                  United States v. Christopher, No. 201600084


insufficient. KW testified that she entered the motel room, got naked, and
had sex with the appellant on the bed. She further testified that she looked at
the camera and saw the camera had been recording the entire time she had
been in the room and was pointed right at where she had sex with the
appellant. This is strong circumstantial evidence. A finding of guilty may be
based on circumstantial evidence. R.C.M. 918(c); United States v. Roberts, 59
M.J. 323, 327 (C.A.A.F. 2004) (“It is well accepted that circumstantial
evidence is sufficient to sustain a finding of guilt.”) Accordingly, we may
affirm the conviction without direct evidence of the video showing KW’s
private area.
   “[A]fter weighing all the evidence in the record of trial and recognizing
that we did not see or hear the witnesses as did the trial court, this court is
convinced of the appellant’s guilt [of all three charges] beyond a reasonable
doubt.” Rankin, 63 M.J. at 557 (citations omitted).
C. Self-defense and mistake of fact as to consent instructions
    The appellant alleges two instructional errors by the military judge: (1)
not instructing the members on self-defense for the assault consummated by
a battery charge (AOE 6); and (2) instructing the members that mistake of
fact as to consent was not available to the appellant unless he reasonably
believed that at the time of the conduct at issue the victim consented
(Supplemental AOE).33
   1. The law
    Whether members were properly instructed is a question of law we review
de novo. United States v. Payne, 73 M.J. 19, 22 (C.A.A.F. 2014). A military
judge’s decision to give, or not give, an instruction is reviewed for an abuse of
discretion. United States v. Maxwell, 45 M.J. 406, 424 (C.A.A.F. 1996). The
abuse of discretion standard calls for more than a mere difference of opinion;
the challenged action must be arbitrary, fanciful, clearly unreasonable, or
clearly erroneous. United States v. White, 69 M.J. 236, 239 (C.A.A.F 2010).
“The military judge must bear the primary responsibility for assuring that
the jury properly is instructed on the elements of the offenses raised by the
evidence as well as potential defenses and other questions of law.” United
States v. Ober, 66 M.J. 393, 405 (C.A.A.F. 2008) (citations and internal
quotation marks omitted). “Generally, a military judge has ‘substantial
discretionary power’ to decide whether to issue a jury instruction. United
States v. Maynulet, 68 M.J. 374, 376 (C.A.A.F. 2010) (citing United States v.
McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002)).


   33 The alleged second instructional error is raised pursuant to Grostefon, 12 M.J.
at 431.

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                 United States v. Christopher, No. 201600084


    While the “military judge has wide discretion in choosing the instructions
to give[, he still] has a duty to provide an accurate, complete, and intelligible
statement of the law.” United States v. Behenna, 71 M.J. 228, 232 (C.A.A.F.
2012) (citations omitted). Instructions should be “tailored to fit the
circumstances of the case,” R.C.M. 920(a), Discussion, and provide “lucid
guideposts” to enable the court members to apply the law to the facts, United
States v. Buchana, 41 C.M.R. 394, 396-97 (C.M.A. 1970) (citations omitted).
See also, United States v. Killion, 75 M.J. 209, 213-14 (C.A.A.F. 2016) (a
military judge’s instructions must be sufficient to provide necessary
guideposts for an informed deliberation on the guilt or innocence of the
accused).
     “A military judge must instruct members on any affirmative defense that
is ‘in issue.’” United States v. Schumacher, 70 M.J. 387, 389 (C.A.A.F. 2011)
(citing R.C.M. 920(e)(3)). An affirmative defense is “‘in issue’ when ‘some
evidence, without regard to its source or credibility, has been admitted upon
which members might rely if they chose.’” Id. (citing United States v. Lewis,
65 M.J. 85, 87 (C.A.A.F. 2007) (additional citations omitted). “We review the
judge’s decision to give or not give a specific instruction, as well as the
substance of any instructions given, to determine if they sufficiently cover the
issues in the case and focus on the facts presented by the evidence.” United
States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002) (citations and internal
quotation marks omitted).
   2. Not instructing on self-defense for the biting
   Self-defense under R.C.M. 916(e)(3) is applicable when the appellant (1)
apprehends, upon reasonable grounds, that bodily harm is about to be
wrongfully inflicted on him; and (2) believes that the force he uses is
necessary for protection against that bodily harm, provided the force used by
the appellant is less than force reasonably likely to produce death or grievous
bodily harm. “Self-defense is a defense of necessity.” United States v. Curtis,
153 (C.A.A.F. 1996), rev’d on other grounds on reconsideration, 46 M.J. 129
(C.A.A.F. 1997) (per curiam). Thus, “[i]f an accused uses force in excess of
that believed by him or her to be necessary for defense, he or she becomes the
aggressor and is not entitled to this defense.” Id. (citing United States v. Reid,
32 M.J. 146, 148 (C.M.A. 1991); United States v. Richey, 20 M.J. 251, 252
(C.M.A. 1985)).
    As a preliminary matter, the trial defense counsel never asked for a self-
defense instruction for the assault the appellant was found guilty of. Rather,
they asked for the instruction with regard to a specification for which the
appellant was acquitted. But waiver by the defense does not apply to required
instructions such as affirmative defenses, United States v. Stanley, 71 M.J.
60, 63 (C.A.A.F. 2012), because the military judge has the sua sponte duty to

                                         13
                      United States v. Christopher, No. 201600084


instruct members on any affirmative defense that is “in issue,” Schumacher,
70 M.J. at 389. Therefore, we must determine if self-defense was in issue.
    The defense theory at trial regarding the appellant biting ND was that
the biting was part of consensual BDSM with either the appellant or someone
else, not that the appellant acted in self-defense.34 “Although the defense
presentation at trial is not dispositive in determining what affirmative
defenses have been reasonably raised by the evidence, we may take into
account the absence of a [self-defense] approach from the defense case when
considering [whether the evidence reasonably raised a special defense.]”
United States v. Hibbard, 58 M.J. 71, 76 (C.A.A.F. 2003).
    The self-defense instruction was not raised by the evidence because there
was no evidence that the appellant reasonably thought that ND was about to
inflict bodily harm upon him and that he reasonably believed biting her thigh
was a necessary action to prevent that harm. The appellant argues, for the
first time on appeal, that he was acting in self-defense because ND admitted
that the appellant bit her immediately after she bit him. But ND clarified
that after she bit him, the appellant’s reaction was anger vice self-defense:
“He spins around in the chair, grabs me, we go onto the bed and he bites my
thigh.”35 Further, the appellant’s reaction was not necessary for his
protection; his violence “exceeded the limits of reasonable action permitted
for protection against bodily injury.” See Reid, 32 M.J. at 148.
    “When instructional errors have constitutional implications, as
instructions involving self-defense do, then the error is tested for prejudice
under a ‘harmless beyond a reasonable doubt’ standard.” Behenna, 71 M.J. at
234 (citation omitted). Assuming, arguendo, the military judge committed
instructional error, we find the error harmless beyond a reasonable doubt.
The absence of the self-defense instruction had no impact on the defense’s
theory of the case, or their presentation of the case—which was centered on
consensual activities of the parties in their BDSM lifestyle. We are confident,
beyond a reasonable doubt, that had the military judge given the self-defense
instruction for the biting assault, the members would still have convicted the
appellant.36
   3. Instruction on mistake of fact as to consent
   Prior to the members’ deliberation, the military judge instructed them
that the government had to prove beyond a reasonable doubt that the visual


   34   Record at 1290-91.
   35   Id. at 766.
   36 The members acquitted the appellant of two other assaults where no self-
defense instruction was given.

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                    United States v. Christopher, No. 201600084


recording and the sexual assault were done without KW and ND’s consent.
The military judge properly gave the mistake of fact as to consent instruction,
which is applicable when:
         [T]he [appellant] held, as a result of ignorance or mistake, an
         incorrect belief that the other person engaging in the sexual
         conduct consented. The ignorance or mistake must have existed
         in the mind of the [appellant] and must have been reasonable
         under all the circumstances. To be reasonable the ignorance or
         mistake must have been based on information, or lack of it,
         which would indicate to a reasonable person that the other
         person consented. Additionally, the ignorance or mistake
         cannot be based on the negligent failure to discover the true
         facts.37
   During deliberations, the members sent the military judge the following
question: “Does the ‘mistake of fact as to consent’ include the reasonable
expectation that consent would be granted after the fact or is it specific [sic]
that consent exists prior to the act?”38 The military judge invited input from
both sides. Then, citing United States v. Hughes, 48 M.J. 214 (C.A.A.F. 1998),
and United States v. Robertson, 33 C.M.R. 828 (A.F.B.R. 1963), he instructed
the members, over defense objection:
             Consent to the conduct at issue, in this case, is relevant
         only if it exists in the mind of the individual at the time of the
         conduct. The defense of mistake of fact as to consent is not
         available to the accused, if he did not reasonably believe that at
         the time of the conduct at issue the alleged victim was
         consenting to the conduct at issue. All of the surrounding
         circumstances are to be considered in determining whether a
         person gave consent or whether an accused’s mistake of fact as
         to consent was reasonable.39
   The members affirmed that this explanation answered their question and
that they needed no further clarification.
    “Court members are presumed to follow the military judge’s instructions.”
United States v. Jenkins, 54 M.J. 12, 20 (C.A.A.F. 2000) (citing United States
v. Garrett, 24 M.J. 413, 418 (C.M.A. 1987); United States v. Ricketts, 1 M.J.


   37 R.C.M. 916(j)(3), MCM (2012 ed.). See United States v. Paige, 67 M.J. 442, 455
(C.A.A.F. 2009) (“[T]he mistake of fact defense requires a subjective, as well as
objective, belief that [the victim] consented . . . .”).
   38   AE CXXVI.
   39   Record at 1345.

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                    United States v. Christopher, No. 201600084


78, 82 (C.M.A. 1975)). The appellant fails to identify any error in the military
judge’s clarifying instruction to the members. Therefore, we reject it.
    In sum, the military judge did not abuse his discretion in failing to give
the self-defense instruction or instructing the members that a mistake of fact
as to consent defense does not entail potential retroactive consent. His
instructional decisions were not arbitrary, fanciful, clearly unreasonable, or
clearly erroneous. White, 69 M.J. at 239. They provided an “accurate,
complete, and intelligible statement of the law,” Behenna, 71 M.J. at 232,
were “tailored to fit the circumstances of the case,” R.C.M. 920(a), Discussion,
and provided “lucid guideposts” to enable the court members to apply the law
to the facts, Buchana, 41 C.M.R. at 396-97.
D. MIL. R. EVID. 412 ruling
   The appellant argues the military judge abused his discretion by refusing
to admit MIL. R. EVID. 412 evidence to impeach ND.40 Specifically, the
defense attempted to admit a photograph and video recordings of ND’s
consensual anal activities with the appellant to impeach her testimony
regarding the sexual assault, and to show that the appellant had a
reasonable mistake of fact as to consent defense.
    The military judge ruled that a photo of a sex toy protruding from ND was
inadmissible, but that the defense could ask ND if she permitted the
appellant to place objects in her anus during their consensual sexual
relationship:
         [T]he defense produced a still photograph of a nude woman,
         apparently ND, with what appears to be a sex toy protruding
         from her body. The photo, in context, appears to be taken from
         ND’s personal profile on the social website FetLife.com. The toy
         appears to be inserted either in her vagina or her anus. The
         defense asserts that introduction of this photo is necessary to
         show that the accused and ND engaged in sexual practices that
         involved ND’s anus. The defense did not produce, however, any
         evidence that the depicted conduct involved the accused, and
         therefore failed to show that this evidence is admissible under
         [MIL. R. EVID.] 412(b)(1)(B). Additionally, the photographic
         evidence does not leave the viewer certain that an object has
         actually been inserted into ND’s anus. It seems as possible that
         the object is inserted into ND’s vagina. Although the Court
         recognizes that this is a matter that would be left for the trier
         of fact, the ambiguity further reduces the probative value of
         this evidence. The evidence is excluded. The Court permits the

   40   Raised pursuant to Grostefon, 12 M.J. at 431.

                                             16
                    United States v. Christopher, No. 201600084


         defense to ask if ND permitted the accused to place any objects
         in her anus during their consensual sexual relationship. The
         Court finds that this evidence is relevant to the issue of
         whether the accused might have believed he had permission to
         engage in sexual acts involving ND’s anus.41
    Prior to trial, the military judge excluded evidence of anal intercourse
between ND and the appellant. But ultimately, at trial, this evidence was
permitted because the “defense was able to show that ND’s testimony allowed
for the possibility that the attempt at anal intercourse occurred before the
accused sexually assaulted her by putting his finger in her anus.”42 However,
the military judge still did not allow the defense to present videos of
consensual anal activity between the appellant and ND.
    “We review a military judge’s decision to admit or exclude evidence [under
MIL. R. EVID. 412] for an abuse of discretion.” United States v. Erikson, 76
M.J. 231, 234 (C.A.A.F. 2017) (citation omitted). “A military judge abuses his
discretion if his findings of fact are clearly erroneous or his conclusions of law
are incorrect.” Id. (quoting United States v. Olson, 74 M.J. 132, 134 (C.A.A.F.
2015)) (additional citation omitted). MIL. R. EVID. 412(b)(1)(B) allows
admissibility of “evidence of specific instances of sexual behavior by the
alleged victim with respect to the person accused of the sexual misconduct
offered by the accused to prove consent . . . .”
    The military judge properly allowed cross-examination into all of the
consensual anal sexual activity between the appellant and ND but did not
admit the photograph and videos depicting such. The preclusion of this
evidence had no possible impact on the trial because ND testified to engaging
in that behavior. In other words, there is no reasonable possibility that had
the photographs or videos been admitted the appellant would have been
acquitted. They were cumulative with ND’s testimony that she had engaged
in anal sex activity with the appellant and also engaged in “anal training.”43
The appellant’s argument is really one of dissatisfaction that he could not
cross-examine ND on salacious photographs and videos, and then present
them to the members.
    “[A]n accused is not simply allowed cross-examination that is effective in
whatever way, and to whatever extent, the defense might wish. Indeed, trial
judges retain wide latitude to limit reasonably a criminal defendant’s right to
cross-examine a witness based on concerns about, among other things,


   41   AE CXXXVI at 6-7.
   42   Id. at 7.
   43   Record at 810.

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                    United States v. Christopher, No. 201600084


harassment, prejudice, confusion of the issues, the witness’ safety, or
interrogation that is repetitive or only marginally relevant.” United States v.
Ellerbrock, 70 M.J. 314, 318 (C.A.A.F. 2011) (citations and internal quotation
marks omitted). Here, the military judge properly limited the cross-
examination to the facts at issue—what kind of consensual anal activity had
occurred between ND and the appellant—without permitting the defense to
use sensational videos and pictures that were not necessary to achieve their
point.
   It is axiomatic that MIL. R. EVID. 403 provides the military judge, as
gatekeeper, the means to exclude relevant evidence:
             The military judge may exclude relevant evidence if its
         probative value is substantially outweighed by a danger of one
         of more of the following: unfair prejudice, confusing the issues,
         misleading the members, undue delay, wasting time, or
         needlessly presenting cumulative evidence.
Where a military judge conducts a proper MIL. R. EVID. 403 balancing on the
record, we will not overturn that ruling unless we find a clear abuse of
discretion. See United States v. Ashby, 68 M.J. 108, 120 (C.A.A.F. 2009). The
military judge did conduct such a balancing test in his written ruling,44 and
did not clearly abuse his discretion.
E. Ineffective assistance of counsel
   The appellant alleges he “did not receive effective assistance of counsel,
due to an accumulation of errors, which prejudiced his right to a fair trial.”45
His claims are numerous but can be broken into two areas of concern: 1) the
military judge was so frustrated with his civilian defense counsel that he did
not get a fair trial; and 2) his counsel failed to investigate and prepare his
case.
   1. Military judge frustration
    The appellant wrongly assumes the military judge was so frustrated with
his counsel that he was denied a fundamentally fair trial. First he references
several occasions during the trial—almost exclusively outside of the presence
of the members—where he asserts the military judge was frustrated that the
defense counsel would not obey the “one counsel rule” wherein only one
counsel would handle making objections or arguing a certain issue. But this
is normal practice in criminal trials when each side is represented by
multiple counsel; there is nothing amiss with a military judge requiring that


   44   AE CXXXVI at 3-9.
   45   Appellant’s Brief at 53. Raised pursuant to Grostefon, 12 M.J. at 431.

                                             18
                      United States v. Christopher, No. 201600084


only one counsel from each side argue an issue or handle a witness so as to
avoid confusion or repetition.
    The appellant then cites to a pretrial motions hearing for evidence during
which he claims the military judge was overly frustrated and biased against
his civilian defense counsel. The government was about to call a witness who
had refused to be interviewed by the defense, and the civilian defense counsel
asked for a recess to interview him. The military judge denied the request,
stating “That ship has sailed. We’re going to put him on the stand.”46 Later,
with the same witness, the civilian defense counsel wandered off the topic of
the motion in his interrogation. The judge cautioned him that the purpose of
the testimony was not to handle government discovery violations and that he
“need[ed] to make this relevant pretty quickly.”47
    Finally, the appellant cites other examples of purported inappropriate
frustration by the military judge during the trial when he made the following
comments: “You need to make this relevant fast”;48 “My patience for that is
gone”;49 and “I need you to know the thin ice that the defense is on. . . [w]ith
respect to the [MIL. R. EVID.] 412.”50 The last two comments were made
outside of the presence of the members and referenced the frustration the
military judge was having with the defense’s repeated noncompliance with
giving MIL. R. EVID. 412 notice to the court and the government.
   The appellant’s defense attorneys did not raise any issues of concern with
the military judge at trial regarding his purported behavior and never asked
him to recuse himself. As there was no objection, this court reviews issues of
a military judge’s impartiality for plain error. “Plain error occurs when: (1)
there is error, (2) the error is plain or obvious, and (3) the error results in
material prejudice.” United States v. Martinez, 70 M.J. 154, 157 (C.A.A.F.
2011) (citing United States v. Maynard, 66 M.J. 242, 244 (C.A.A.F. 2008)). A
military judge should “disqualify himself . . . in any proceeding in which that
military judge’s impartiality might reasonably be questioned.” R.C.M. 902(a).
    Here, the military judge did not err in failing to sua sponte recuse himself
because the military judge’s behavior did not exceed that of any other trial
judge tasked to ensure a fair, efficient trial. In fact, a careful read of the
entire record illustrates the military judge was patient and professional with
all counsel. He also instructed the members that they were not to blame

   46   Record at 40.
   47   Id. at 52.
   48   Id. at 674.
   49   Id. at 606.
   50   Id. at 608.

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                     United States v. Christopher, No. 201600084


either side, but him, if they were frustrated with the many “start[s] and
“stop[s]” during the trial necessitated by hearings outside of their presence,
under Article 39, UCMJ.51 Regardless, mere “remarks, comments, or rulings
of a judge do not constitute bias or partiality, ‘unless they display a deep-
seated favoritism or antagonism that would make fair judgment impossible.’”
United States v. Quintanilla, 56 M.J. 37, 44 (C.A.A.F. 2001) (quoting Liteky v.
United States, 510 U.S. 540, 555 (1994)). The military judge showed no deep-
seated favoritism or antagonism toward either party.
   Additionally:
             Not establishing bias or partiality, however, are expressions
         of impatience, dissatisfaction, annoyance, and even anger, that
         are within the bounds of what imperfect men and women, even
         after having been confirmed as . . . judges, sometimes display.
         A judge’s ordinary efforts at courtroom administration—even a
         stern and short-tempered judge’s ordinary efforts at courtroom
         administration—remain immune. Liteky, 510 U.S. at 555-56
         (emphasis in original).
    The appellant asserts that “[t]he written word is bland,” and that the
military judge was too agitated during certain portions of the trial.52 We have
carefully reviewed the record, consisting of 1,434 pages of transcript. We find
the military judge’s demeanor and conduct were entirely within the norms
expected of a military judge; he held both sides accountable, treated both
sides fairly, and conducted a fundamentally fair trial.
   2. Counsel failed to investigate and prepare for his case
   The appellant provided several lists to his defense counsel, totaling
around 33 people he determined were potential witnesses. He states that
many were never called by his defense team, and that others were contacted
merely weeks before his trial. He avers that “[m]any of these people were
easy and willing to testify positively for me and negatively for my accusers.”53
Some of these witnesses did testify; the defense called seven witnesses during
the trial, while the government called only five. We decline to second-guess
the defense trial strategy as to why additional witnesses were not called
when the appellant’s strongest assertion is that they would have liked him
and not liked ND. His sweeping generalizations about potential witnesses do
not establish how their particular testimony would have led to a different
result in his trial.

   51   Id. at 880-81.
   52   Appellant’s Declaration at 8.
   53   Id. at 12.

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                  United States v. Christopher, No. 201600084


   The appellant’s claims that his defense team was unprepared run the
gambit and are unpersuasive.54 His strongest claim is that they were
continually chided by the military judge for not giving proper MIL. R. EVID.
412 notice to the government and to the court. However, this shortfall, if not
excusable, is understandable, given the voluminous physical and testimonial
sexual evidence in this BDSM case and the frequency with which MIL. R.
EVID. 412 issues were raised. The defense team filed two MIL. R. EVID. 412
notices with opposing counsel and the court, followed by a motion to litigate
the issues.55 The extensive notice and litigation of these matters encompassed
15 different areas in the military judge’s 10-page written ruling.56
   3. The law
   In reviewing claims of ineffective assistance of counsel, we “look at the
questions of deficient performance and prejudice de novo.” United States v.
Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012) (citation and internal quotation
marks omitted). The Sixth Amendment entitles criminal defendants to
representation that does not fall “below an objective standard of
reasonableness” in light of “prevailing professional norms.” Strickland v.
Washington, 466 U.S. 668, 688 (1984).
    We apply Strickland’s two-prong test to determine whether counsel
rendered ineffective representation. To prevail on a claim of ineffective
assistance of counsel, “an appellant must demonstrate both (1) that his
counsel’s performance was deficient, and (2) that this deficiency resulted in
prejudice.” United States v. Green, 68 M.J. 360, 361-62 (C.A.A.F. 2010) (citing
Strickland, 466 U.S. at 687) (additional citation omitted). “The burden on
each prong rests with the appellant challenging his counsel’s performance.”
United States v. Davis, 60 M.J. 469, 473 (C.A.A.F. 2005). The first prong
requires the appellant to show that counsel’s performance fell below an
objective standard of reasonableness, indicating that counsel was not
functioning as counsel within the meaning of the Sixth Amendment. United
States v. Terlap, 57 M.J. 344, 349 (C.A.A.F. 2002). Our review of counsel’s
performance is highly deferential and is buttressed by a strong presumption



   54 For example, one claim is that his defense counsel did not cross-examine KW
regarding her statement that she did not have her glasses on prior to entry into the
motel room. The appellant provides a screenshot of KW wearing glasses outside the
motel that evening, thus contradicting her testimony. But the impeachment value of
this evidence is extremely weak, and has nothing to do with KW seeing the video
camera footage of the appellant’s surreptitious filming of their sexual encounter.
   55   AEs XXIX, XXXI, and LXX.
   56   AE CXXXVI.

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                United States v. Christopher, No. 201600084


that counsel provided adequate representation. United States v. Garcia, 59
M.J. 447, 450 (C.A.A.F. 2004).
    The appellant’s trial defense team’s conduct falls within the wide range of
reasonable professional assistance. His counsel filed and litigated over a
dozen motions, conducted vigorous cross-examination of the government’s
witnesses, and presented a viable defense case on the merits and at
sentencing. His counsel procured acquittals on three charges and got two
charges dismissed prior to the presentation of evidence. The appellant has
not demonstrated that his counsel’s performance was deficient to the point
that they were not functioning as the counsel guaranteed by the Sixth
Amendment. Furthermore, we find that the appellant has failed to establish
any prejudice from his defense team’s performance which would show “a
reasonable probability that, but for counsel’s error, there would have been a
different result.” United States v. Quick, 59 M.J. 383, 386-87 (C.A.A.F. 2004)
(citing Strickland, 466 U.S. at 694). For the reasons set forth above, we
conclude the appellant’s claim that his defense team was ineffective is
without merit.
                              III. CONCLUSION
    The findings and sentence as approved by the convening authority are
affirmed.
   Chief Judge GLASER-ALLEN and Senior Judge MARKS concur.
                                       For the Court




                                       R.H. TROIDL
                                       Clerk of Court




                                        22
