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

                             No. 201600134
                         _________________________

                 UNITED STATES OF AMERICA
                                  Appellee
                                     v.

                           SHANON L. BEST
          Master Chief Hospital Corpsman (E-9), U.S. Navy
                             Appellant
                      _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

        Military Judge: Captain Robert J. Crow, JAGC, USN.
       Convening Authority: Commander, Navy Region Southeast,
                          Jacksonville, FL
Staff Judge Advocate’s Recommendation: Commander Nell O. Evans,
                            JAGC, USN.
    For Appellant: James S. Trieschmann, Jr., Esq.; Lieutenant
                Jacqueline M. Leonard, JAGC, USN.
 For Appellee: Major Kelli A. O’Neil, USMC; Major Cory A. Carver,
                               USMC.
                      _________________________

                          Decided 25 May 2017
                         _________________________

   Before C AMPBELL , F ULTON , and H UTCHISON , 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.
                       _________________________

   HUTCHISON, Judge:
   A panel of officer members sitting as a general court-martial convicted the
appellant, contrary to his pleas, of two specifications of rape and one
specification of obstructing justice in violation of Articles 120 and 134,
                         United States v. Best, No. 201600134


Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920 (2000) and 10
U.S.C. § 934 (2012), respectively. The convening authority (CA) approved the
adjudged sentence of 30 years’ confinement and a dishonorable discharge.
    The appellant asserts three assignments of error (AOEs)1: (1) the rape
specifications are barred by the statute of limitations because the Supreme
Court has held that the death penalty for rape is unconstitutional; (2) the
military judge abused his discretion by permitting a government expert
witness to testify about a 13-year-old step-daughter’s capacity to consent to
sexual intercourse with her stepfather2; and (3) the evidence is legally and
factually insufficient to support Specification 2 of Charge I. Having carefully
considered the record of trial and the parties’ submissions, we conclude the
findings and sentence are correct in law and fact, and find no error materially
prejudicial to the appellant’s substantial rights. Arts. 59(a) and 66(c), UCMJ.
                                  I. BACKGROUND
    The appellant was convicted of two specifications of raping his
stepdaughter, LN, over the course of several years, beginning when she was a
child. Specification 1 alleges rape on divers occasions between 5 December
1999 and 4 December 2003, while Specification 2 alleges rape on divers
occasions between 5 December 2003 and 30 September 2007. The sworn
charges were received by the officer exercising summary court-martial
jurisdiction on 3 April 2015.
   LN was born in December 1987 and was five years old when the appellant
married her mother, MB. For the first several years of the marriage, LN lived
with her biological father and had only sporadic interaction with the

    1   We have renumbered the AOEs.
    2 The appellant further alleges that the military judge committed instructional
error by issuing contradicting instructions:
          IMMEDIATELY AFTER THE MILITARY JUDGE RULED THAT
          THE GOVERNMENT EXPERT COULD NOT TESTIFY TO THE
          ULTIMATE ISSUE OF CONSENT, THE MILITARY JUDGE
          ABUSED HIS DISCRETION BY ALLOWING THE EXPERT
          WITNESS TO TESTIFY THAT A 13-YEAR-OLD STEP-DAUGHTER
          COULD NEVER HAVE THE CAPACITY TO CONSENT TO
          SEXUAL    INTERCOURSE     WITH    HER    33-YEAR-OLD
          STEPFATHER. THE MILITARY JUDGE ALSO COMMITTED
          INSTRUCTIONAL ERROR BY ISSUING CONTRADICTING
          INSTRUCTIONS “THAT NOT ALL CHILDREN INVARIABLY
          ACCEDE TO PARENTAL WILL” AND THAT THE MEMBERS
          SHOULD RELY ON EXPERT TESTIMONY TO DETERMINE
          CONSENT.
Appellant’s Brief of 17 Oct 2016 at 1.

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                        United States v. Best, No. 201600134


appellant. However, she lived with her mother and the appellant as a
teenager.
    During March 2001, the appellant, MB, LN, and the three children the
appellant and MB had together all travelled to Texas, because the appellant’s
grandfather was ill. LN testified that the appellant entered the room in
which she was sleeping and asked her if “he could be somebody that [she]
could practice sexual things with, that way when [she] do[es] come into
contact with boys [she] would know what [she] was doing[.]”3 Although LN
told him “no” because she “couldn’t do that to [her] mom,” the appellant
persisted, and “the next thing [LN] remember[s] [the appellant] was on top of
[her]” and “had sex with [her].”4
    Sexual encounters between the appellant and LN continued over the next
several years at the appellant’s various duty stations. LN described how the
appellant would approach her for sex whenever the two were alone together.
Although LN testified that she definitely did not want the appellant to have
sex with her, “at the time, [she] fe[lt] like that’s all [she] knew” and that sex
with her stepfather “was just so normal for [her].”5 At times she told the
appellant they should stop having sex. In response, the appellant would
isolate and ignore her and she would not be included in family outings. LN
also testified that the appellant told her never to tell anyone about their
sexual encounters, that he would kill himself if anyone ever found out, and
that “one day [she would] look back and hate [him] and realize what [he had]
done.”6
   The appellant was the sole provider and disciplinarian for the family and
was very strict with LN, affording her very little privacy. He read her diaries,
and she was not permitted to have a boyfriend or to talk with boys on the
phone. LN described being constantly grounded for months at a time over
very minor issues. The appellant also punished her by removing her bedroom
door. LN testified that the appellant got angry whenever she got in trouble
and that she was afraid of him. She felt like she had to have sex with him if
he wanted to, because it was “what made him happy . . . .[she] felt like if [she]
didn’t do that it would cause trouble and it would ruin everything.”7
  MB testified that she first found out about the appellant having sex with
LN in 2007, after she discovered LN with a male friend in her bedroom. The

   3   Record at 215.
   4   Id.
   5   Id. at 226.
   6   Id. at 224.
   7   Id. at 235.

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                          United States v. Best, No. 201600134


appellant was out of town, and when he returned a few days later, MB
informed him that LN had a boy with her in her bedroom. MB testified that
the appellant reacted by “freaking out and throwing up, panicking.”8 At that
point, MB was already suspicious that something was going on between the
appellant and LN, and she told the appellant to “[j]ust tell [her].”9 The
appellant admitted to MB that he had been having sex with LN since she was
“like 12, 13,” but downplayed his role, telling MB that LN “was evil, that she
was bad, that they were gonna go off and be together, and they were gonna
leave [MB] and the kids to go be together.”10 After the appellant’s disclosure
to MB, the appellant and MB sent LN to live with her biological father in
Texas.
   LN admitted during cross-examination that, while she lived in Texas, she
sent the appellant e-mails telling him she wanted him to “dream about”11 her
and stating, “[w]e can finally be together, because I don’t want anyone else. I
never have.”12 LN also disclosed that the appellant never physically forced
her to have sex with him and never threatened her with physical violence or
punishment. LN further conceded that she, at times, approached the
appellant for sex, that she wrote him love letters, and that she told the
appellant that she loved him. After joining the Navy in 2008, and while at
bootcamp, LN sent the appellant letters, referring to him as “baby” or
“Shanon.”13 The appellant attended LN’s bootcamp graduation, and the two
engaged in sexual intercourse in a hotel room that night.
    In a controlled call conducted during the subsequent Naval Criminal
Investigative Service investigation, LN confronted the appellant about being
“only 12 years old and more vulnerable than ever and [him being] a 31 year
old man,” when their sexual relationship began and the “the guilt [he] put on
[her] when [she] would approach [him] asking for all this to stop.”14 She told
the appellant that he “created a wall between [her] and the whole family for
[his] own benefit;” that he “broke [her] down to nothing, making her believe
[she] wasn’t good enough for anything;” and that the appellant “took more




   8    Id. at 282.
   9   Id.
   10   Id. at 282-83.
   11   Id. at 264-65.
   12   Id. at 263-64.
   13   Id. at 246.
   14   Prosecution Exhibit 3 at 3-4.

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                         United States v. Best, No. 201600134


and more control over [her].”15 In response, the appellant admitted that HN
LN was “100 percent right with everything” she said.16
    At trial, a forensic psychiatrist, Dr. H, testified as an expert witness
regarding the importance of the parent-child relationship, especially as the
brain develops in adolescence. He explained that the relationship is “critical
because the parent provides the framework” or the “lens in which . . . the
child sees the world.”17 Dr. H explained that a parent is “tremendously
influential in helping the child realize what is appropriate, what is not
appropriate, what is normal, what is not normal[.]”18 When asked by the trial
counsel what happens if the trust between a parent and a child becomes
distorted, Dr. H testified:
         [A]ny number of things can happen, but . . . what I see
         clinically when the primary relationship is distorted or
         pathological or deviant is that the child makes bad decisions.
         They have a distorted sense of what is right and wrong. They
         have a distorted sense of what they should do or what they
         shouldn’t do. They have a distorted sense of whether and when
         it is not appropriate to act on impulses.19
    Dr. H then gave a lengthy explanation on “grooming,” describing such
behavior as the deliberate and thoughtful set of behaviors designed to
“leverage and exploit the vulnerable nature of the victim and to perpetuate
the deviant feelings of the predator.”20 Dr. H explained that the goal of
grooming was psychological, vice physical, coercion and referred to such
conduct as manipulation. Finally, after listening to her testimony, Dr. H
noted that LN “spoke of control, isolation[,] and secrecy,” all of which are
“central components of grooming” and indicative of a coercive environment.21




   15   Id.
   16   Id. at 5.
   17   Record at 307.
   18   Id.
   19   Id.
   20   Id. at 308.
   21   Id. at 329.

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                            United States v. Best, No. 201600134


                                         II. DISCUSSION
A. Statute of limitations
    During these offenses, Article 43(a), UCMJ,22 provided that “[a] person
charged with . . . any offense punishable by death, may be tried and punished
at any time without limitation.” Otherwise, Article 43(b)(1), UCMJ, then as
now, imposes a five-year statute of limitations, preventing trial by court-
martial for an offense committed “more than five years before the receipt of
sworn charges and specifications by an officer exercising summary court-
martial jurisdiction over the command.” The statutory maximum punishment
for rape at the time of the charged offenses was “death or such other
punishment as a court-martial may direct.” Article 120(e)(1), UCMJ.23 The
appellant contends, however, that the death penalty for rape under Article
120, UCMJ, is unconstitutional given the Supreme Court’s holdings in
Kennedy v. Louisiana, 554 U.S. 407 (2008) (concluding the Eighth
Amendment barred imposition of the death penalty for rape of a child) and
Coker v. Georgia, 433 U.S. 584 (1977) (holding a sentence of death was
grossly disproportionate and excessive punishment for the crime of rape).
Consequently, the appellant argues, Charge I is subject to the five-year
statute of limitations in Article 43(b)(1), UCMJ. We disagree.
    The Court of Appeals for the Armed Forces (CAAF) conclusively ruled
that “rape is an offense punishable by death for purposes of exempting it
from the 5-year statute of limitations of Article 43(b)(1),” UCMJ. Willenbring
v. Neurauter, 48 M.J. 152, 180 (C.A.A.F. 1998) (internal quotation marks
omitted). In Willenbring, the appellant sought an extraordinary writ,
contending that, given the Supreme Court’s holding in Coker, death was not a
possible punishment for the three specifications of rape with which he was
charged. Since his offenses were alleged to have occurred approximately nine
years before the charges were received by the officer exercising summary
court-martial jurisdiction, Willenbring argued the charges were barred by the
five-year statute of limitations imposed by Article 43(b)(1), UCMJ. The CAAF
found that “the question of whether the death penalty may be imposed, given
the facts and circumstances of any particular case, does not control the
statute of limitations issue.” Id. at 178.


    22 10 U.S.C. § 843(a) (1986). The 2006 amendment adding “rape” to the
enumerate offenses having no statute of limitations under Article 43(a) and
extending the statute of limitations for child abuse offenses to “the life of the child or
within five years after the date on which the offense was committed, whichever
provides a longer period,” applied only to offenses committed on or after 1 October
2007—the first day after the appellant’s charged period. 109 P.L 163 Sec. 553(a)-(b).
    23   10 U.S.C. § 920(e)(1) (2000).

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                           United States v. Best, No. 201600134


    Consistent with Willenbring, our sister court vacated a military judge’s
order dismissing two specifications of rape, following a government
interlocutory appeal pursuant to Article 62(b), UCMJ. United States v.
Toussant, No. 20080962, 2008 CCA LEXIS 564 (A. Ct. Crim. App. 30 Dec
2008) (mem. op.). Like the appellant here, Toussant argued that the Supreme
Court’s holding in Kennedy barred his prosecution for rape since the crimes
occurred more than five years ago. The Army Court of Criminal Appeals
disagreed, reasoning that the Supreme Court clarified that its decision in
Kennedy was limited to the civilian context,24 and that Willenbring “made
clear” that Article 43(b)(1)’s five-year statute of limitations did not apply to
the crimes of rape and rape of a child. Id. at *10.
    We see no reason to deviate from the CAAF’s clear pronouncement of the
law in Willenbring, nor from the Army court’s application of that law—to
facts strikingly similar to those presented here—in Toussant. Consequently,
we conclude that Specifications 1 and 2 under Charge I are not barred by the
statute of limitations.
B. Expert witness testimony
    The appellant next contends that the military judge erred “when he
allowed the government’s expert to testify that a thirteen-year-old does not
have the capacity to consent to sexual intercourse.”25
   “[E]rror may not be predicated upon the admission of testimony unless
there is a timely objection on the record.” United States v. Robbins, 52 M.J.
455, 457 (C.A.A.F. 2000) (citation omitted). However, “[a]s an exception, [we]
may take notice of plain error even though not brought to the attention of the
military judge if the appellant demonstrates that there was an error, that the
error was plain (‘clear’ or ‘obvious’), and that the error materially prejudiced
the substantial rights of the appellant.” Id. (citing United States v. Powell, 49
M.J. 460, 463-65 (C.A.A.F. 1998)); Art. 59(a), UCMJ; and MILITARY RULE OF
EVIDENCE (MIL. R. EVID.) 103(d), MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2012 ed.)).


   24 Toussant, 2008 CCA LEXIS 564, at *9 (quoting Kennedy v. Louisiana, 554 U.S.
945, 947-48 (2008) (denying petition for rehearing, and explaining that the Court
“need not decide whether certain considerations might justify differences in the
application of the Cruel and Unusual Punishments Clause to military cases (a matter
not presented . . . for [the Court’s] consideration) and, that whether or not “the
Manual for Courts-Martial retains the death penalty for rape of a child or an adult
when committed by a member of the military does not draw into question [the
Court’s] conclusions that there is a consensus against the death penalty for the crime
in the civilian context[.]”).
   25   Appellant’s Brief at 9.

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                            United States v. Best, No. 201600134


    On the other hand, where a proper objection is raised at trial, we review a
military judge’s rulings on the admissibility of evidence for an abuse of
discretion. United States v. Griffin, 50 M.J. 278, 284 (C.A.A.F. 1999).
Therefore, we must first determine whether the defense objected to this
evidence at trial, in order to determine the proper standard by which we
evaluate this alleged error.
   Following a cross-examination in which Dr. H conceded that 13-year-old
teenagers make “bad” or “inappropriate” decisions, that they can “flirt with
an older adult,” and that they “can have sexual contact with an adult,”26 the
government counsel began redirect with the following question:
         Dr. H[], you just testified after the defense question that
         teenagers may make bad decisions. In your opinion can a 13
         year old girl make a consensual decision to have sex with a 31
         year old stepfather?27
    The civilian defense counsel objected. The military judge sustained the
objection and instructed the members to disregard the question. The trial
counsel then continued:
         Q. Based on your knowledge and expertise, Dr. H[], is a 13 year
         old able to appreciate and weigh the ramifications of sexual
         activity accurately?
         A. I’m of the opinion, to a reasonable degree of medical and
         psychiatric certainty, no, unequivocally no and that’s why they
         have parents, because they don’t have that capacity and their
         parents are there to help them make better decisions.28
    The civilian defense counsel did not object to this specific question and
answer. The appellant now contends that following the trial defense counsel’s
prior objection, “the government continued to elicit improper testimony” from
Dr. H and “the [m]ilitary [j]udge failed to perform his role to prevent it.”29 We
disagree and find the civilian defense counsel’s failure to object forfeited the
issue. Therefore, we review admission of this testimony for plain error and
find none.
   As a threshold matter, we disagree with the appellant’s underlying
premise that Dr. H testified that a 13-year old girl was incapable of
consenting to sex with her stepfather. Indeed, after trial defense counsel’s

   26   Record at 321-22.
   27   Id. at 323.
   28   Id. at 327 (emphasis added).
   29   Appellant’s Brief at 10.

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                         United States v. Best, No. 201600134


objection, the military judge prevented Dr. H from answering that specific
question—whether or not a 13-year-old could “make a consensual decision to
have sex” with a stepfather.30 Instead, Dr. H testified regarding whether a
13-year-old had the capacity to “appreciate and weigh the ramifications of
sexual activity accurately[.]”31 The appellant points to no law—and we have
found none—that supports the contention that being “unable to appreciate
and weigh the ramifications of sexual activity accurately” is the same thing
as being incapable of consenting. Consequently, absent objection from defense
counsel, there was no “clear” or “obvious” error in admitting the testimony.
Powell, 49 M.J. at 463-65.
    We also find no merit in the appellant’s argument that Dr. H’s
testimony—which “characterize[d] a 33 year old stepfather having sex with
his 13 year old stepdaughter” as “deviant” and “pathological”—lacked a
proper foundation.32
    The “military judge has broad discretion as the gatekeeper to determine
whether . . . an adequate foundation” has been established. United States v.
Green, 55 M.J. 76, 80 (C.A.A.F. 2001) (citations and internal quotation marks
omitted). “An expert may base an opinion on facts or data in the case that the
expert has been made aware of or personally observed.” MIL. R. EVID. 703,
SUPPLEMENT TO MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.).
Put simply, an expert’s opinion can be formed from “personal knowledge,
assumed facts, documents supplied by other experts, or even listening to the
testimony at trial.” United States v. Houser, 36 M.J. 392, 399 (C.M.A. 1993).
    In United States v. Raya, the CAAF held that the military judge did not
abuse his discretion by admitting testimony of a social worker who testified
that a rape victim suffered from post-traumatic stress disorder, despite never
having interviewed or treated the victim. 45 M.J. 251, 253 (C.A.A.F. 1996).
The fact that the social worker formed her opinion from listening to the trial
testimony, reading the reports of others, and “assuming facts as alleged by
the victim were true,” went to the weight of the evidence and not its
admissibility. Id. The same is true here. The trial counsel laid a proper
foundation for Dr. H’s testimony by establishing (1) Dr. H had assessed and
treated victims and perpetrators involved in step-parent/stepchild
relationships and, (2) Dr. H had reviewed the relevant facts in the case and
observed LN’s testimony.

   30   Record at 323.
   31   Id. at 327.
   32Id. at 315. During an effective cross-examination of Dr. H, the civilian defense
counsel made clear to the members that the terms “deviant” and “pathological” were
medical terms and carried no legal effect. Id. at 320-21.

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                          United States v. Best, No. 201600134


    Moreover, unlike the social worker in Raya, Dr. H did not testify about a
specific condition or make a medical diagnosis concerning LN; rather he
testified about the psychological conditions that are associated with victims of
childhood sexual assault. “In cases involving allegations of sexual abuse of a
child, a qualified expert may inform the fact finder of characteristics
commonly found in sexually abused children and describe the characteristics
exhibited by the alleged victim.” United States v. Rodriguez-Lopez, No. 33548,
2001 CCA LEXIS 223, at *33, unpublished op., (A.F. Ct. Crim. App. 26 Jul
2001) (citing United States v. Birdsall, 47 M.J. 404, 409 (C.A.A.F. 1998))
(additional citations omitted), aff’d, 58 M.J. 19 (C.A.A.F. 2002). Therefore,
given the military judge’s broad discretion as gatekeeper, we find no error in
the admission of Dr. H’s testimony.
    Finally, the appellant avers that the military judge erred “[b]y referencing
Dr. H[]’s testimony on consent in his instructions,” thereby injecting
“inadmissible evidence into the definition of ‘consent,’” and “instructing the
members that they could use Dr. H[]’s opinion to determine the element of
consent.”33
    “Whether a panel was properly instructed is a question of law reviewed de
novo.” United States v. McClour, 76 M.J. 23, 25 (C.A.A.F. 2017) (citations and
internal quotation marks omitted). Where there is no objection to an
instruction at trial, this court reviews for plain error. United States v.
Tunstall, 72 M.J. 191, 193 (C.A.A.F. 2013). Having found that the military
judge did not err in admitting Dr. H’s testimony, we reject the appellant’s
assertion that “inadmissible evidence” was injected into the definition of
consent.34 Regardless, the members were properly instructed on the elements
of rape, the standard of proof, and the government’s requirement to prove
beyond a reasonable doubt that the sexual intercourse was achieved by force
and without consent. “Absent evidence to the contrary, [we] may presume
that members follow a military judge’s instructions.” United States v. Taylor,
53 M.J. 195, 198 (C.A.A.F. 2000) (citing United States v. Loving, 41 M.J. 213,
235 (C.A.A.F. 1994)) (additional citation omitted). The military judge also
instructed the members on constructive force, explaining:
         In deciding whether the victim did not resist or ceased
         resistance because of constructive force in the form of parental
         duress or compulsion, you must consider all of the facts and
         circumstances including, but not limited to, the age of the child
         when the alleged abuse started, the child’s ability to fully
         comprehend the nature of the acts involved, the child’s

   33   Appellant’s Brief at 12-13.
   34   Id.

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                            United States v. Best, No. 201600134


         knowledge of the accused’s parental power, any implicit or
         explicit threats of punishment or physical harm if the child
         does not obey . . . the parent’s commands, the accused harming
         himself, the family being ruined and the child’s dependency
         upon the parents. If [LN] did not resist or ceased resistance due
         to compulsion or duress of parental command, constructive
         force has been established and the act of sexual intercourse
         was done by force and without consent.35
    The military judge further instructed, “In deciding whether [LN] had at
the time of the sexual intercourse the requisite knowledge and mental
development, capacity and ability to consent, you should consider all of the
evidence in the case, including, but not limited to, her age, education and the
testimony of Dr. H[].”36 Finally, specifically with regards to Dr. H’s expert
testimony, the military judge instructed the members “you are not required
to accept the testimony of an expert witness or give it more weight than the
testimony of an ordinary witness.”37
    Taken as a whole, we conclude that the military judge’s reference to Dr.
H’s testimony, along with all the other evidence in the case, was not clearly
or obviously erroneous and was, in any event, properly bounded by the
military judge’s admonition that members were free to disregard the
testimony or give it no more weight than that of any other witness. Therefore,
we find no plain error in the military judge’s instructions.38
C. Legal and factual sufficiency
    In his final assignment of error, the appellant contends that the evidence
is legally and factually insufficient to support a conviction for Specification 2
under Charge I, because throughout the charged period, LN was not a “child
of tender years” and the “government’s theory of the case . . . was rape by
constructive force, that LN did not consent because of her young age, and
that Appellant had power over her as a parent.”39

   35   Record at 411-12.
   36   Id. at 413 (emphasis added).
   37   Id. at 421.
    38 Although we find no error in either the military judge’s admission of Dr. H’s

testimony or the military judge’s instructions, we conclude that even if the military
judge erred, there was no material prejudice to a substantial right of the appellant.
Art. 59(a), UCMJ. See United States v. Berry, 61 M.J. 91, 98 (C.A.A.F. 2005)
(evaluating the strength of the government case, the strength of the defense case,
and the materiality and quality of the evidence in question, in determining whether
any error substantially influenced the members’ decision).
   39   Appellant’s Brief at 22.

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                       United States v. Best, No. 201600134


    We review questions of legal and factual sufficiency de novo. Art. 66(c),
UCMJ; United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The
test for legal sufficiency is “whether, considering the evidence in the light
most favorable to the prosecution, any reasonable fact-finder could have
found all the essential elements beyond a reasonable doubt.” United States v.
Day, 66 M.J. 172, 173-74 (C.A.A.F. 2008) (citing United States v. Turner, 25
M.J. 324, 324 (C.M.A. 1987)). In applying this test, “we are bound to draw
every reasonable inference from the evidence of record in favor of the
prosecution.” United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001)
(citations omitted).
    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) (citing Turner, 25 M.J. at 325 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.
    The appellant argues that, in addition to LN being 16 to 19 years old
during the period charged in Specification 2, she “never said ‘no,’ resisted, or
attempted to flee her situation with the [a]ppellant.”40 Rather, she sent him
love letters and emails and wanted him to divorce her mother so she could
marry him. Indeed, while LN testified she felt controlled, manipulated, and
brainwashed, she also testified the appellant never forced her or threatened
her with violence or punishment to affect that control over her.
    The appellant relies on United States v. Rhea, 33 M.J. 413 (C.M.A. 1991),
where the Court of Military Appeals (CMA) set aside Rhea’s convictions for
raping and committing indecent acts with his stepdaughter by using
“constructive force” when she was between the ages of 16 and 19. The
appellant’s reliance on Rhea is misplaced. The CMA remanded the case so
that “the court below [could] undertake a further review of the sufficiency of
the evidence and the instructions” with a “focus on whether the subtle and
psychological effects of Rhea’s relationship to [his stepdaughter]—to the
extent that relationship still existed—were still sufficient to constitute
constructive force” in light of his stepdaughter’s age. Id. at 425 (emphasis in
original) (internal quotation marks omitted). On remand, the Air Force Court


   40   Id. at 23.

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                         United States v. Best, No. 201600134


of Military Review concluded that “parental duress did still provide the
coerciveness that constitutes ‘constructive force’ even when [the victim] was
20 years old” and that Rhea’s stepdaughter “did not willingly consent to . . .
sexual intercourse[.]” United States v. Rhea, No. 27563, 1992 CMR LEXIS
470, at *11 (A. F. C. M. R. 11 May 1992).
    In United States v. Young, 50 M.J. 717 (A. Ct. Crim. App. 1999), the Army
court affirmed Staff Sergeant Young’s conviction for raping his stepdaughter
when she was between the ages of 16 and 20, holding that the government’s
theory that the victim was “groomed” and “conditioned” to comply with
Young’s demands from an early age was fully supported by the evidence,
including the testimony of two child sexual abuse expert witnesses. Id. at
726.
   We reject—as did the Army court in Young—any suggestion that parental
compulsion evaporates as a matter of law when a child reaches 16. Certainly,
no case law supports such a rule. Therefore, in order for the appellant to
prevail, we must find that the evidence produced at trial was legally
insufficient to establish constructive force, i.e., parental compulsion.
   As in Rhea and Young, sexual activity between the appellant and LN
began well before LN turned 16. LN testified that the appellant first raped
her when she was 13. In addition, LN had little privacy; the appellant read
her diaries and, as a punishment for minor transgressions, removed the door
from her bedroom. Even after LN graduated from high school, the appellant
did not let her date. LN further testified that she got to the point where sex
with the appellant felt “normal” to her, and she wanted to keep him happy.41
Like the victims in Rhea and Young, LN viewed the appellant as the
authority figure and main provider for the family and continued to live in his
house during much of the charged period.
    Finally, testimony from Dr. H expounded on the concept of parental
compulsion. He testified that grooming a child to have sex involves behaviors
like isolation and taking advantage of the inherent authority a parent has
over a child; it was possible for a child to be coerced through that
psychological manipulation to give in to an authority figure’s wishes.
Importantly, Dr. H also testified that he heard testimony in this case
indicating LN was in a coercive environment when she lived with the
appellant.
    After carefully reviewing the record of trial and considering all of the
evidence in a light most favorable to the prosecution, we are convinced that a
rational factfinder could have found the appellant’s sexual intercourse with


   41   Record at 226.

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                        United States v. Best, No. 201600134


LN was by force and without her consent, despite the fact that she was older
than 16, given the government’s theory of constructive force through parental
compulsion. Furthermore, weighing all the evidence in the record of trial and
making allowances for not having personally observed the witnesses, we are
convinced beyond a reasonable doubt of the appellant’s guilt.42
                                 III. CONCLUSION
   The findings and sentence, as approved by the CA, are affirmed. The
supplemental promulgating order will reflect that the specification under
Charge II was withdrawn and dismissed prior to the entry of pleas. United
States v. Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998).
   Senior Judge CAMPBELL and Judge FULTON concur.


                                            For the Court



                                           R.H. TROIDL
                                           Clerk of Court




   42  Although we find Specification 2 both factually and legally sufficient, we note
that the military judge merged both Charge I specifications for sentencing purposes.
Id. at 606. Consequently, even were we to set aside Specification 2 and reassess the
sentence in accordance with United States v. Winckelmann, 73 M.J. 11 (C.A.A.F.
2013), we would still affirm the sentence as approved by the CA.

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