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

                             No. ACM 39019 (reh)
                            ________________________

                              UNITED STATES
                                  Appellee
                                        v.
                         Luis F. SANTOS JR.
           Airman First Class (E-3), U.S. Air Force, Appellant 1
                            ________________________

        Appeal from the United States Air Force Trial Judiciary
                          Decided 26 November 2019
                            ________________________

Military Judge: Mark W. Milam.
Approved sentence: Dishonorable discharge, confinement for 12 months,
forfeiture of $500.00 pay per month for 12 months, and reduction to E-
1. Sentence adjudged 26 January 2018 by GCM convened at Joint Base
San Antonio-Lackland, Texas.
For Appellant: Major Mark C. Bruegger, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Captain
Zachary T. West, USAF; Mary Ellen Payne, Esquire.
Before J. JOHNSON, POSCH, and KEY, Appellate Military Judges.
Judge POSCH delivered the opinion of the court, in which Senior Judge
J. JOHNSON and Judge KEY joined.
                            ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 30.4.



1This court’s 23 August 2017 decision misidentified Appellant as a senior airman and
omitted the suffix “Jr.”
                 United States v. Santos, No. ACM 39019 (reh)


                            ________________________

POSCH, Judge:
     In October 2015, Appellant was convicted at a general court-martial com-
posed of a military judge alone of one specification of sexual assault of Airman
First Class (A1C) SM 2 and one specification of abusive sexual contact of A1C
EM, both in violation of Article 120, Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 920. 3 The military judge sentenced Appellant to a dishonorable
discharge, confinement for 18 months, forfeiture of all pay and allowances, and
reduction to the grade of E-1. The convening authority disapproved the ad-
judged forfeitures, deferred and waived the automatic forfeitures for the bene-
fit of Appellant’s dependents, but otherwise approved the adjudged sentence.
    In his initial appeal, Appellant assigned two errors. First, in light of United
States v. Hills, 75 M.J. 350 (C.A.A.F. 2016) and United States v. Hukill, 76 M.J.
219 (C.A.A.F. 2017), Appellant asserted that the military judge erred by ad-
mitting evidence of each charged offense to be used as propensity evidence un-
der Military Rule of Evidence (Mil. R. Evid.) 413 to prove the other charged
offense. Second, Appellant claimed the evidence was factually and legally in-
sufficient to sustain his conviction for abusive sexual contact of A1C EM. Ap-
pellant did not then raise on appeal a claim that his conviction for sexual as-
sault of A1C SM was legally and factually insufficient.
    A three-judge panel of this court affirmed the findings of sexual assault of
A1C SM, and pursuant to Hills, 75 M.J. at 350, and Hukill, 76 M.J. at 219, set
aside the finding of guilt of abusive sexual contact of A1C EM along with the
sentence. In the exercise of this court’s authority under Article 66(d), UCMJ,
10 U.S.C. § 866(d), the panel authorized a rehearing as to the set-aside finding
and sentence, and returned the record of trial to The Judge Advocate General
for remand to the convening authority for further action consistent with our
opinion. United States v. Santos, No. ACM 39019, 2017 CCA LEXIS 575 (A.F.
Ct. Crim. App. 23 Aug. 2017) (unpub. op.).
   On 16 November 2017, the General Court-Martial Convening Authority or-
dered a rehearing and subsequently withdrew and dismissed the specification


2 A1C SM separated from active duty before the rehearing and is identified in the opin-
ion by her military status at the time of Appellant’s original trial.
3The offenses of which Appellant was found guilty are listed in the Manual for Courts-
Martial, United States (2012 ed.). All other references in this opinion to the Uniform
Code of Military Justice (UCMJ) and the Rules for Courts-Martial (R.C.M.) are to the
Manual for Courts-Martial, United States (2016 ed.), unless otherwise indicated.




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                 United States v. Santos, No. ACM 39019 (reh)


alleging abusive sexual contact of A1C EM. 4 A rehearing was held on 26 Jan-
uary 2018 at Joint Base San Antonio (JBSA)-Lackland, Texas, to adjudge a
sentence for the affirmed finding of sexual assault of A1C SM. A general court-
martial composed of a military judge sentenced Appellant to a dishonorable
discharge, confinement for 12 months, forfeiture of $500.00 pay per month for
12 months, and reduction to the grade of E-1. The convening authority ap-
proved the sentence that was adjudged at the rehearing.
    In this appeal, Appellant identifies two assignments of error: (1) whether
the military judge erred by admitting A1C SM’s testimony in presentencing
from Appellant’s October 2015 court-martial under the residual exception to
the rule against hearsay, Mil. R. Evid. 807; and (2) whether Appellant’s con-
viction for sexual assault of A1C SM, which a panel of this court previously
affirmed, Santos, unpub. op. at *25, is legally and factually sufficient. 5 We have
considered Appellant’s second assignment of error and conclude the issue does
not require further discussion or warrant relief. See United States v. Matias,
25 M.J. 356, 361 (C.M.A. 1987). Finding prejudicial error in the military judge’s
admission of evidence under the residual hearsay exception, we reassess and
affirm the sentence.

                                 I. BACKGROUND
   In October 2015, Appellant was convicted of sexual assault of A1C SM fol-
lowing her testimony at Appellant’s court-martial. The trial counsel recalled
A1C SM in presentencing to testify further about the effects of Appellant’s
criminal conduct beyond its immediate impact in the hours after the assault
that she described in findings. Unlike her findings testimony, the matters in
aggravation presented in presentencing described how Appellant’s criminal
conduct appreciably affected her during the 11 months between the sexual as-
sault and trial.
    A1C SM was not subpoenaed and did not testify at Appellant’s sentencing
rehearing convened in January 2018. Instead, the trial counsel offered both a
written transcript and an audio recording of her in-court testimony during the
findings and presentencing phase of Appellant’s original trial held almost two
years earlier. Without objection, the military judge admitted excerpts from
A1C SM’s findings testimony, and over defense objection, her presentencing
testimony as well.


4The convening authority withdrew and dismissed Specification 3 of the Charge, which
action we find was consistent with the remand and R.C.M. 1107(e)(1)(B)(iii).
5Appellant personally asserts the second issue pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982).


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                 United States v. Santos, No. ACM 39019 (reh)


   1. Prior Findings Testimony
    In the replay of her findings testimony that was admitted without objec-
tion, A1C SM explained how she and Appellant became friends at training be-
fore they arrived at their first duty assignment at JBSA-Lackland. Before long,
Appellant became her best friend among a circle of Airmen who spent most of
their off-duty time together. One evening after dinner with their friends, she
returned with Appellant to his dormitory room on JBSA-Fort Sam Houston,
where she borrowed shorts and a t-shirt. After changing clothes she lay on Ap-
pellant’s bed and they watched a movie. A1C SM soon fell asleep. She awoke
to the sensation of Appellant’s fingers inside her vagina and his erect penis
pressed against her leg. She felt Appellant kissing her neck and breathing
heavily. A1C SM described feeling numb and scared. She elbowed Appellant,
ran barefoot to her car, locked the door, and texted another friend, “I just woke
up to [Appellant] fingering me, and I’m heading back to Lackland.” While driv-
ing home, she was “hyperventilating and shaking,” “really scared,” “stressed
out,” and “just felt empty,” all the while pondering why her best friend would
“do that” to her. When she reached her dorm room she took off the clothes Ap-
pellant had lent her, threw them in a corner of her room, got in the shower,
and sat on the floor holding her knees “for a really long time.” She showered
for over an hour with the curtain open because she was terrified of Appellant
entering the room.
   2. Prior Presentencing Testimony
    Over defense objection, the military judge admitted additional evidence in
aggravation in the form of a written transcript and three audio recordings, al-
together 13 minutes in length, from portions of A1C SM’s presentencing testi-
mony given at the original trial. A1C SM’s prior testimony described the psy-
chological effects of Appellant’s misconduct and how it affected her career, view
of the military, and ability to feel safe in the 11 months after the sexual assault.
None of the evidence in aggravation that A1C SM gave in presentencing was
admitted during the findings portion of Appellant’s trial.
    A1C SM described waking up every hour or half-hour in the months before
trial as a result of nightmares she experienced from the assault. To cope with
sleeplessness, she tried consuming alcohol and taking prescribed sedatives but
would still wake up crying and relive the incident “every night over and over
again.” After reporting the assault, she was removed from patient care duties
at the hospital where she worked. She testified her superiors “didn’t think [she]
was emotionally stable and didn’t want [her] to be around patients,” a deter-
mination she found hard to accept. Her upgrade training was placed on hold,
and because she was unable to progress in her Career Development Course she
was ineligible for tuition assistance to pay for college. A1C SM tearfully ex-
plained she “used to genuinely believe in the wingman concept,” but she no

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                 United States v. Santos, No. ACM 39019 (reh)


longer trusted anyone including her coworkers and leadership. She no longer
felt safe in public or on a military installation and limited her activities to work
and staying at home. She was unable to bring herself to reenter JBSA-Fort
Sam Houston where the assault occurred. After a change of assignment, A1C
SM found a house with a security system and a panic alarm in the bedroom,
but intrusive fears of Appellant and others discovering where she lived per-
sisted.
    A1C SM also described the effect of Appellant’s criminal conduct on her
relationships. She felt isolated from anyone who found out what happened. She
explained how friends became distant because Airmen who supported Appel-
lant took sides. Her father, a prior military service member, had encouraged
her to enlist in the Air Force as “he knew the Air Force would take care of” her.
A1C SM told how her father chastised her for reporting the assault, and her
mother looked upon her as a helpless victim rather than an adult. By far the
most significant consequence was lost intimacy with her husband whom she
married two weeks before the assault. She described how his exhibiting affec-
tion through physical contact and touch felt like “getting assaulted all over
again,” and would trigger anxiety attacks.
    In the rehearing on sentencing, the trial counsel argued how the “lasting
effects” A1C SM described “one year on” turned her into a “person that she
didn’t used to be.”

                                 II. DISCUSSION
    On appeal, Appellant maintains the military judge erred in receiving A1C
SM’s victim-impact testimony given in presentencing at Appellant’s original
trial. Conceding that Rule for Courts-Martial (R.C.M.) 810(a)(2)(A) allows the
sentencing authority to receive evidence from the original trial that is admitted
in findings, Appellant contends that evidence admitted in the trial counsel’s
presentencing case is inadmissible at a rehearing unless the proponent shows
compliance with the Military Rules of Evidence. Appellant claims A1C SM’s
prior testimony in presentencing was inadmissible hearsay and did not qualify
for admission under any permitted exception. Therefore, it should not have
been received, much less considered, to adjudge Appellant’s sentence.
    The Government maintains A1C SM’s prior testimony was more probative
aggravation evidence than any sentencing testimony she could offer in the
2018 sentence rehearing. The trial counsel argued that A1C SM’s presentenc-
ing testimony was not hearsay, claiming the rehearing was simply an exten-
sion of Appellant’s first trial. Reasoning that hearsay means a statement that
“the declarant does not make while testifying at the current trial or hearing,”
Mil. R. Evid. 801(c)(1), the trial counsel asserted that A1C SM’s presentencing
testimony given at the original trial was non-hearsay and therefore admissible

                                         5
                 United States v. Santos, No. ACM 39019 (reh)


at the rehearing. In the alternative, the Government contends now as it did at
trial that her prior testimony qualified for admission under the residual excep-
tion to the rule against hearsay, Mil. R. Evid. 807.
A. Matters Received in Evidence at a Sentencing Rehearing
   As this court observed in United States v. Sills, 61 M.J. 771, 773 (A.F. Ct.
Crim. App. 2005), aff’d, 63 M.J. 262 (C.A.A.F. 2006), the starting point for the
admissibility of sentencing evidence in a rehearing convened to resentence an
appellant is R.C.M. 810(a)(2):
       Rehearings on sentence only. In a rehearing on sentence only, the
       procedure shall be the same as in an original trial, except that
       the portion of the procedure which ordinarily occurs after chal-
       lenges and through and including the findings is omitted, and
       except as otherwise provided in this rule.
       (A) Contents of the record. The contents of the record of the orig-
       inal trial consisting of evidence properly admitted on the merits
       relating to each offense of which the accused stands convicted
       but not sentenced may be established by any party whether or
       not testimony so read is otherwise admissible under Mil. R.
       Evid. 804(b)(1) 6 and whether or not it was given through an in-
       terpreter.
(Footnote inserted).
    Subject to specified conditions, the rule permits the sentencing authority to
consider prior testimony, i.e. “evidence,” found in “the record of the original
trial” that “may be established” by its proponent. R.C.M. 810(a)(2)(A). Strictly
speaking, the plain language of the rule does not evaluate such evidence for its
“admissibility,” “use,” or “consideration” at a rehearing, although these and
like terms may be used interchangeably. Id.; see also R.C.M. 810(c)(1) (unless
the military judge permits, no member may examine matters from the record
of a former proceeding until first “received in evidence”). The salient points are
that R.C.M. 810(a)(2) articulates the standard for a military judge to use when
determining what evidence from the original trial may be considered by the
sentencing authority, and the rule most assuredly levies conditions on what
may be received in evidence and considered to determine an appropriate sen-
tence as we explain next.
   At a rehearing on sentence only, R.C.M. 810(a)(2)(A) allows the sentencing
authority to receive “evidence properly admitted on the merits relating to each


6 Enumerating an exception to the rule against admitting hearsay when the declarant
is unavailable as a witness. Mil. R. Evid. 804(b)(1) (Former Testimony).


                                        6
                 United States v. Santos, No. ACM 39019 (reh)


offense of which the accused stands convicted but not sentenced” at the original
trial. (Emphasis added). In the case at bar, the military judge agreed with Ap-
pellant’s understanding of “on the merits,” concluding that portions of A1C
SM’s findings testimony from Appellant’s original trial could be considered by
the sentencing authority at the rehearing; however, because her presentencing
testimony was not on the merits, it could not be received unless it first qualified
for admission under the Military Rules of Evidence. This included satisfying
the rule against hearsay and its exceptions, Mil. R. Evid. 801–807, as a predi-
cate to admissibility.
    For evidence that is properly admitted in the original trial and of conse-
quence in a rehearing, R.C.M. 810(a)(2)(A) imposes no other procedural or ev-
identiary prerequisite aside from the limitation that such evidence was “on the
merits.” This condition is open to two possible interpretations. Under the first
and more likely reading, and the one adopted by the military judge, “on the
merits” means findings only. Under an alternative reading, “on the merits”
would include evidence presented both in findings and presentencing at the
original trial, but not evidence received before arraignment such as to decide
an interlocutory question or rule on a pretrial motion.
    The text of R.C.M. 810 as a whole lends support to the first interpretation.
When a rehearing is ordered to adjudge a sentence only, “the procedures shall
be the same as in an original trial.” R.C.M. 810(a)(2). It follows that the full
requirements of the Military Rules of Evidence, including the general prohibi-
tion against hearsay, would apply until the rules may be relaxed by an accused
with respect to matters in extenuation or mitigation presented by the defense,
R.C.M. 1001(c)(3), and thereafter by the trial counsel in rebuttal and surrebut-
tal. R.C.M. 1001(d).
    Also instructive is use of “on the merits,” as it appears elsewhere in R.C.M.
810. We consider its meaning in the context of the rule’s direction for conduct-
ing a rehearing on sentence together with either retrial of an offense from the
original court-martial, or trial on a new charge and specification:
       Combined rehearings. When a rehearing on sentence is com-
       bined with a trial on the merits of one or more specifications re-
       ferred to the court-martial, whether or not such specifications
       are being tried for the first time or reheard, the trial will proceed
       first on the merits, without reference to the offenses being re-
       heard on sentence only. After findings on the merits are an-
       nounced, the members, if any, shall be advised of the offenses on
       which the rehearing on sentence has been directed.




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                United States v. Santos, No. ACM 39019 (reh)


R.C.M. 810(a)(3) (second and third emphasis added). Here, the language “first
on the merits” and “findings on the merits,” resolutely establishes “on the mer-
its” is one and the same with “findings” where it appears in the rule, notably
R.C.M. 810(a)(2)(A), and is distinct from sentencing. See also R.C.M. 1001(e)(1)
(“During the presentence proceedings, there shall be much greater latitude
than on the merits to receive information by means other than testimony pre-
sented through the personal appearance of witnesses.”). It follows that R.C.M.
810(a)(2)(A) treats evidence admitted in findings and evidence admitted in
presentencing from an original trial differently when the same evidence is of-
fered again at a sentencing rehearing. In the case of the former, evidence that
had been properly admitted and is germane to the rehearing may be consid-
ered. In the case of the latter, the evidence must be shown to be otherwise
admissible anew even though it had been properly admitted at the original
trial. In neither case is the rehearing simply an extension of the original trial.
To find otherwise would render the rule ineffectual.
    We conclude R.C.M. 810(a)(2)(A) allows that evidence admitted in the find-
ings portion of an appellant’s original trial may be received by the sentencing
authority at a rehearing on sentence. Conversely, matters other than findings
evidence have no special treatment under the rule. As a result, we hold that
other than evidence admitted in the findings portion of an appellant’s original
trial relating to an offense of which the accused stands convicted, a proponent
of evidence offered at a rehearing on sentence must establish a basis for ad-
missibility under applicable rules of evidence and procedure, regardless
whether the evidence was admitted in presentencing in the original trial. See
generally, R.C.M. 1001–1010. As a consequence of our holding, we agree with
the military judge that admissibility of A1C SM’s presentencing testimony at
the rehearing turned on whether the trial counsel demonstrated proper
grounds for admission under the Military Rules of Evidence.
B. Erroneous Admission of A1C SM’s Prior Presentencing Testimony
as Residual Hearsay
    At the outset, we note that the evidence in question relates to victim impact
and was proper aggravation evidence. 7 See generally R.C.M. 1001(b)(4). As
both parties acknowledge, the central issue in the case is whether A1C SM’s
prior testimony in presentencing was admissible under the residual hearsay
exception, Mil. R. Evid. 807. The military judge recognized this as well and
admitted her testimony under the exception after conducting a Mil. R. Evid.
403 balancing test.



7Her testimony also demonstrated adverse impact on the mission and good order and
discipline, which were relevant considerations under R.C.M. 1001(b)(4).


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                  United States v. Santos, No. ACM 39019 (reh)


    Appellant argues it was an abuse of discretion for the military judge to ad-
mit A1C SM’s testimony at the rehearing held more than two years later. Ap-
pellant bases his argument primarily on United States v. Czachorowski, 66
M.J. 432 (C.A.A.F. 2008). In that case the United States Court of Appeals for
the Armed Forces (CAAF) held that a trial counsel’s bare assertion of a declar-
ant’s unavailability, without more, failed to satisfy the Government’s burden
to prove the requirements of the residual hearsay exception. Appellant argues
trial counsel presented no evidence of reasonable efforts to produce A1C SM as
a witness at the rehearing. As a result, the military judge erred in admitting
the evidence because the trial counsel failed to prove that admission of her
prior testimony was necessary as required by Mil. R. Evid. 807. We agree.
    1. Law
    A military judge’s ruling admitting evidence under Mil. R. Evid. 807 is re-
viewed for an abuse of discretion. Czachorowski, 66 M.J. at 434 (citation omit-
ted). “Findings of fact are affirmed unless they are clearly erroneous; conclu-
sions of law are reviewed de novo.” Id. (citing United States v. Rader, 65 M.J.
30, 32 (C.A.A.F. 2007)). A military judge has “considerable discretion” in ad-
mitting residual hearsay. United States v. Kelley, 45 M.J. 275, 280–81
(C.A.A.F. 1996) (citing United States v. Pollard, 38 M.J. 41, 49 (C.M.A. 1993)).
   As a prerequisite to admission of a prior statement as residual hearsay, the
proponent is required to prove, and the military judge must determine, that:
        (1) the statement has equivalent circumstantial guarantees of
        trustworthiness;
        (2) the statement is offered as evidence of a material fact;
        (3) the statement is more probative on the point for which it is
        offered than other evidence that the proponent can obtain
        through reasonable efforts; and
        (4) the general purposes of the Military Rules of Evidence and
        the interests of justice will best be served by admission of the
        statement into evidence.
Mil. R. Evid. 807(a). 8 “The residual hearsay rule sets out three requirements
for admissibility: (1) materiality, (2) necessity, and (3) reliability.” Kelley, 45
M.J. at 280 (citations omitted) (discussing a prior version of the rule). The ne-
cessity prong, i.e. third prong of Mil. R. Evid. 807(a), “requires the proponent
of the evidence to show he could not obtain more probative evidence despite



8Additionally, Mil. R. Evid. 807(b) requires proper notice to be given. Appellant did
not challenge the trial counsel’s compliance with this requirement at trial or on appeal.


                                           9
                  United States v. Santos, No. ACM 39019 (reh)


reasonable efforts.” Czachorowski, 66 M.J. at 435. The necessity prong “essen-
tially creates a ‘best evidence’ requirement.” Kelley, 45 M.J. at 281 (quoting
Larez v. City of Los Angeles, 946 F.2d 630, 644 (9th Cir. 1991)).
    2. Analysis
    The Defense objected to admission of A1C SM’s prior testimony at the re-
hearing on the basis of hearsay, and argued there was no evidence she had
been served a subpoena to appear. The military judge addressed each of the
Mil. R. Evid. 807(a) prongs. He found A1C SM’s prior testimony given in
presentencing had equivalent circumstantial guarantees of trustworthiness
under the first prong because A1C SM gave her 2015 presentencing testimony
under oath and subject to cross-examination. Her prior testimony was evidence
of a material fact under the second prong because it was proper aggravation
evidence under R.C.M. 1001(b)(4), specifically evidence of victim impact in the
11 months after Appellant’s sexual assault. Under the fourth prong, the mili-
tary judge found that admission best served the purposes of the evidentiary
rules and the interests of justice.
     The focus of the litigation at trial and this appeal is the third prong, that
is, the “necessity” requirement of the rule. To demonstrate necessity the trial
counsel must show it could not obtain more probative evidence despite “rea-
sonable efforts.” Czachorowski, 66 M.J. at 435–36. Our superior court has ob-
served that “courts have found the residual hearsay exception inapplicable
when the evidence is not unreasonably difficult to obtain directly from an avail-
able declarant.” Id. at 436. (citations omitted).
    We find the military judge did not adequately determine the evidence was
more probative on the point for which it was offered than other evidence which
the Government could procure through reasonable efforts. In response to ques-
tioning by the military judge, the trial counsel stated, without evidence of rec-
ord, that A1C SM had been made aware of the date, time, and location of the
rehearing, that she had been invited to attend, and that she had decided not
to appear or provide an unsworn statement. The trial counsel also explained
A1C SM was enrolled in school, no longer on active duty, and not represented
by counsel. The trial counsel presented no evidence that it subpoenaed A1C
SM or other evidence to support its assertions regarding A1C SM’s unavaila-
bility or status. 9 The military judge was presented no evidence to assess for


9 Referring to the Prosecution’s proffer, the trial defense counsel explained he believed,
“[t]hey simply called her, and she decided that she didn’t want to come.” Although the
Defense did not “object” to the proffer, they did not explicitly agree with it either, and
maintained there was no evidence A1C SM was served a subpoena to appear.




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                 United States v. Santos, No. ACM 39019 (reh)


himself whether A1C SM was unavailable or otherwise beyond the Govern-
ment’s ability to procure through reasonable efforts. And, consistent with the
lack of evidence on this point, the military judge did not find that the Govern-
ment made reasonable efforts to produce A1C SM. To that end, he concluded
the trial counsel “could have subpoenaed her and required her to attend.” 10
Because “[i]t does not appear that that was done,” the military judge concluded
that none of the exceptions that might allow admission of hearsay when a de-
clarant is unavailable as a witness—including the former testimony excep-
tion—would apply. 11 See Mil. R. Evid. 804.
   Nevertheless, the military judge concluded that the trial counsel satisfied
the necessity prong—which he allowed “might be the most difficult prong for
the court”—by relying on the trial counsel’s assertion that A1C SM’s prior tes-
timony given much closer in time to the charged offense was more probative
than her in-person testimony would be at the rehearing:
       [R]ecognizing that this was how she felt 2 years ago, a time much
       more close in time to that of today, the court finds her aggrava-
       tion evidence at the time of the original trial to be more probative
       on the point of her aggravation—of her effects of the incident—
       than anything she could testify to today and 2 years later—over
       2 years later.
    However, there was no evidence in the record to support this conclusion,
based as it was on the assumption that mere passage of time would cause A1C
SM’s prior testimony to be more probative than any testimony she could give
during the rehearing. Much like the trial counsel’s mere assertion of unavail-
ability, there was no evidentiary basis for finding A1C SM’s recollection had
been diminished by the passage of time, and the determination was again
made on the basis of the trial counsel’s assertion that it was so. However, the
CAAF has clearly stated that under the Mil. R. Evid. 807 necessity prong, a
“trial counsel’s bare assertion” of a witness’ unavailability “without any expla-
nation” is insufficient to admit residual hearsay. Czachorowski, 66 M.J. at 437.
The CAAF has similarly explained that a military judge “cannot take it for
granted that a declarant of any age is unavailable or forgetful, and then admit
hearsay testimony under the residual exception instead.” Id. at 436. Here,


10The process to compel a witness to appear and testify “shall be similar to that which
courts of the United States having criminal jurisdiction may lawfully issue,” Article
46, UCMJ, 10 U.S.C. § 846, and in the case of a witness not on active duty, a subpoena
may be issued by detailed trial counsel after referral. R.C.M. 703(e)(2)(A) and
703(e)(2)(C)(2)(b).
11The trial counsel did not offer the prior testimony under an exception to hearsay
other than the residual exception, Mil. R. Evid. 807.


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                United States v. Santos, No. ACM 39019 (reh)


there was no evidence in the record that A1C SM was either unavailable or
forgetful. Although it is possible A1C SM’s memory faded over time, it is also
possible she could have vividly recounted all that she experienced in the after-
math of Appellant’s offense.
    Citing United States v. Bess, the Government prevails upon this court to be
mindful that an abuse of discretion “requires more than just [a court’s] disa-
greement with the military judge’s decision.” 75 M.J. 70, 73 (C.A.A.F. 2016)
(citing United States v. Stellato, 74 M.J. 473, 480 (C.A.A.F. 2015)). Relying on
Bess, the Government contends that the military judge’s “finding was not ‘out-
side the range of choices reasonably arising from the applicable facts and the
law,’” id., and therefore did not constitute an abuse of discretion. Because the
Government failed to offer evidence of reasonable efforts to obtain A1C SM’s
presence at trial, or to demonstrate that A1C SM’s prior testimony was more
probative on the point for which it was offered than her in-person testimony
would have been, we disagree. The military judge’s findings on the necessity
prong were based on assertions of counsel and not evidence. It follows then
that the findings on which he based his ruling were clearly erroneous. We find
the military judge erred in his application of the third prong of Mil. R. Evid.
807, and his ruling to admit residual hearsay was an abuse of discretion.
C. Prejudice and Sentence Reassessment
    Having determined there was error in admission of evidence in aggrava-
tion, we must next determine whether the error had a “substantial influence
on the sentence” that was adjudged. See United States v. Boyd, 55 M.J. 217,
221 (C.A.A.F. 2001) (citation omitted). “If so, then the result is material preju-
dice to Appellant’s substantial rights.” United States v. Griggs, 61 M.J. 402,
410 (C.A.A.F. 2005) (citation omitted) (setting out the test for the erroneous
admission or exclusion of evidence); see also United States v. Sanders, 67 M.J.
344, 346 (C.A.A.F. 2009); United States v. Bridges, 66 M.J. 246, 249 (C.A.A.F.
2008). We test for prejudice by assessing “whether the error substantially in-
fluenced the adjudged sentence” and consider four factors: “(1) the strength of
the Government’s case; (2) the strength of the defense case; (3) the materiality
of the evidence in question; and (4) the quality of the evidence in question.”
United States v. Barker, 77 M.J. 377, 384 (C.A.A.F. 2018) (citations omitted).
“An error is more likely to be prejudicial if the fact was not already obvious
from the other evidence presented at trial and would have provided new am-
munition against an appellant.” Id. (citing United States v. Harrow, 65 M.J.
190, 200 (C.A.A.F. 2007)).
    On appeal, the Government argues Appellant was not prejudiced because
admission of A1C SM’s prior sentencing testimony at the rehearing did not
substantially influence the adjudged sentence. Through the proper admission
of A1C SM’s findings testimony, the Government claims, the military judge

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                 United States v. Santos, No. ACM 39019 (reh)


already had “powerful findings testimony that provided significant aggrava-
tion and victim impact evidence.”
    However, we decline to infer that the military judge admitted other mate-
rial victim impact evidence and then proceeded to disregard it on grounds that
there was already evidence in aggravation of record. This is especially so be-
cause unlike evidence that was already before the court, the improperly admit-
ted presentencing evidence went far beyond the immediate aftermath of the
sexual assault in the first hours after it happened. The focus of the inadmissi-
ble evidence was the long-term consequences of Appellant’s conduct measured
in months, not hours. It related to just about every facet of A1C SM’s life from
her military career to her family and friends, including her relationship with
her husband. Considering the four Barker factors together, we conclude the
improperly admitted evidence substantially influenced the sentence.
    The result we reach is warranted by how the disputed evidence was used
after it was erroneously admitted. The trial counsel argued at the rehearing
how such “lasting effects” “one year on” turned A1C SM into a “person that she
didn’t used to be.” The least dated evidence of “lasting effects” would have been
offered through A1C SM’s live testimony: neither R.C.M. 810 nor R.C.M.
1001(b)(4) establish a temporal limit on evidence that may be admitted at a
rehearing on sentence. See also United States v. Rivers, 27 C.M.R. 949, 951
(A.F.B.R. 1958) (matters in aggravation up to the time of sentence may be con-
sidered at a sentence rehearing); United States v. Davis, 65 M.J. 749, 751–53
(N.M. Ct. Crim. App. 2007) (excluding facts from consideration by the sentenc-
ing authority at a rehearing because they arose after the date of the original
sentence would be “difficult, and ultimately capricious, to implement”). The
sustained impact argument trial counsel advanced at the rehearing undercuts
the Government’s contention that A1C SM’s prior testimony given 11 months
after the charged offense was more probative than her in-person testimony
would have been at the rehearing. The Government cannot have it both ways,
arguing the diminished value of victim impact evidence in the 39 months after
a sexual assault, and at the same time use victim-impact testimony to argue
matters in aggravation because a victim endured “lasting effects.”
    We next consider whether this court should again order a rehearing or re-
assess the sentence. We have “broad discretion” when reassessing sentences.
United States v. Winckelmann, 73 M.J. 11, 13 (C.A.A.F. 2013) (citation omit-
ted). The CAAF has repeatedly held that if we “can determine to [our] satisfac-
tion that, absent any error, the sentence adjudged would have been of at least
a certain severity, then a sentence of that severity or less will be free of the
prejudicial effects of error . . . .” United States v. Sales, 22 M.J. 305, 308 (C.M.A.
1986). Thus, our analysis is based on a totality of the circumstances to include
whether the offense is of the type that we as appellate judges should have the


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                United States v. Santos, No. ACM 39019 (reh)


experience and familiarity with to reliably determine what sentence would
have been imposed at trial. Winckelmann, 73 M.J. at 15–16. We find the factors
weigh in favor of reassessment rather than rehearing.
     We are also aware that, in reassessing a sentence, we must ensure that
“the reassessed sentence ‘is no greater than that which would have been im-
posed if the prejudicial error had not been committed.’” United States v. Mof-
feit, 63 M.J. 40, 42 (C.A.A.F. 2006) (quoting Sales, 22 M.J. at 308). Appellant
chose sentencing by a military judge alone, and this court has the experience
and familiarity with Appellant’s offense to determine reliably what sentence
would have been imposed by the judge absent the error. We can reliably deter-
mine Appellant would have received a sentence of at least a dishonorable dis-
charge, confinement for ten months, forfeiture of $500.00 pay per month for
ten months, and reduction to the grade of E-1.
   We also conclude that this reassessed sentence is appropriate. We assess
sentence appropriateness by considering Appellant, the nature and serious-
ness of the offense, Appellant’s record of service, and all matters contained in
the record of trial. United States v. Bare, 63 M.J. 707, 714 (A.F. Ct. Crim. App.
2006) (citing United States v. Healy, 26 M.J. 394, 395–96 (C.M.A 1988); United
States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982)), aff’d, 65 M.J. 35 (C.A.A.F.
2007). We are convinced that the reassessed sentence is not inappropriately
severe.

                               III. CONCLUSION
   This court previously affirmed the findings of guilty. We reassess the sen-
tence to a dishonorable discharge, confinement for ten months, forfeiture of
$500.00 pay per month for ten months, and reduction to the grade of E-1. The
sentence as reassessed is correct in law and fact, and no other error materially
prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and
66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the sentence as reas-
sessed is AFFIRMED.


                 FOR THE COURT



                 CAROL K. JOYCE
                 Clerk of the Court




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