          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                               Master Sergeant DUANE M. COLE
                                    United States Air Force

                                               ACM 38606

                                           12 November 2015

         Sentence adjudged 17 January 2014 by GCM convened at Ellsworth Air
         Force Base, South Dakota. Military Judge: L. Martin Powell.

         Approved Sentence:          Confinement for 1 year, reduction to E-4, and a
         reprimand.

         Appellate Counsel for the Appellant: Major Jeffrey A. Davis.

         Appellate Counsel for the United States:                  Major Mary Ellen Payne
         and Gerald R. Bruce, Esquire.

                                                  Before

                             ALLRED, TELLER, and ZIMMERMAN
                                  Appellate Military Judges

                                     OPINION OF THE COURT

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                              under AFCCA Rule of Practice and Procedure 18.4.



TELLER, Senior Judge:

       Appellant was convicted by a panel of officer members, pursuant to mixed pleas,
of a violation of a lawful general regulation by wrongfully storing sexually explicit
materials on a government computer, assault consummated by a battery, and conduct that
was service discrediting and prejudicial to good order and discipline by wrongfully
posing for a sexually explicit visual recording while in uniform, in violation of Articles
92, 128, and 134, UCMJ, 10 U.S.C. §§ 892, 928, 934.1 Appellant was acquitted of a
charge of sexual assault. The court sentenced him to one year of confinement, forfeiture
of $2,427 pay per month for one year, reduction to the grade of E-4, and a reprimand.
The sentence, except for the forfeitures, was approved on 16 April 2014, with automatic
forfeitures waived for the benefit of Appellant’s daughter.

       Appellant argues that the military judge erred by admitting a portion of a petition
for a protective order, that the trial counsel made improper argument during sentencing,
that the victim impact statement provided to the convening authority contained
impermissible matters, and that the Government’s violation of the 30-day post trial
processing standard for forwarding the record of trial for appellate review warrants relief.
Finding no error that materially prejudices a substantial right of Appellant, we affirm the
findings and sentence.

                                                   Background

       The Government began investigating Appellant after a broader inspection of
government computers revealed sexually explicit materials on his government account.
The inspection of Appellant’s computer account disclosed hundreds of sexually explicit
images and several videos, all of which were prohibited by regulation from being stored
on an Air Force computer system. A few of the depictions showed a woman performing
oral sex on Appellant while he was in uniform. In the course of the investigation, agents
spoke to Appellant’s former wife, Ms. Cole,2 who described, among other things, a 2010
incident where Appellant pushed her down during an argument.

       At trial, Ms. Cole testified about the charged assault. The couple had a tumultuous
past, having been married from 1992 to 1997, then reconciled and remarried in 2004
before divorcing a second time in 2012. In September 2010, as the second divorce began
to appear likely, she and Appellant had an argument about child custody. She testified
that during the argument, Appellant pushed her in the chest, causing her to fall over a
baby gate onto a treadmill. On cross-examination, trial defense counsel elicited
testimony about a protective order she sought shortly after the incident, in an effort to
rebut testimony that she was afraid of Appellant prior to the assault, specifically as it
pertained to the unrelated charge of sexual assault.

       A major theme of the defense case was the suggestion that Ms. Cole was
deliberately misleading. Trial defense counsel elicited testimony about a number of
complaints Ms. Cole had raised that he characterized as “outrageous claims.” Trial

1
  Appellant pled guilty to the violation of the general regulation and to posing for explicit recordings in uniform and
not guilty to the assault consummated by a battery.
2
  In order to respect her privacy, we refer to Appellant’s former wife, who still used her married name at the time of
trial, only as Ms. Cole.




                                                          2                                               ACM 38606
defense counsel referred back to those portions of her testimony during argument and
implied that they were malicious. He made sweeping arguments about her reasons for
making such statements:

                 Maybe she was upset about the fact that she perceived this
                 infidelity going on over a long course of her relationship with
                 Sergeant Cole. It’s clear based off of these allegations, these
                 wild allegations that she’s made against Sergeant Cole, that
                 there’s a certain level of vindictiveness there. Another thing
                 to consider is, maybe, we just don’t know what her rationale
                 is. But one thing is clear, based off of all the things that she’s
                 said about Sergeant Cole, there’s something that’s off there.
                 There’s something that’s unstable.            Maybe we don’t
                 understand it. The government certainly didn’t provide you
                 an explanation for it. But, at the end of the day, we can’t get
                 into her mind and explain all these inconsistencies away for
                 the government.

       During deliberations, the members sought additional evidence about the assault.
Their interest focused on possible contemporaneous reports. After being informed that
there were no police reports or contemporaneous witness statements they would be
allowed to consider, the members asked to recall Ms. Cole.3 During the questioning by
the members, one member asked Ms. Cole, “You stated the protective order was because
you were afraid for yourself and your daughters, but why did you not mention the 2010
treadmill incident when petitioning for [the 2010 or 2013] protective order?” Ms. Cole
responded, “I don’t know.” Factually, the member’s question was based on a faulty
premise because Ms. Cole did in fact mention the treadmill incident in the 2010
application for the protective order. Trial counsel, noting the discrepancy, clarified the
misunderstanding by refreshing Ms. Cole’s recollection with the protective order, which
included both the court order itself and the underlying petition.

       With the protective order in front of the witness, the same member turned to the
content of that application. He asked, “Ms. Cole, can we hear specifically what you
reported about the treadmill incident in the protective order?” Although the question
clearly called for hearsay, neither party objected to the question. Ms. Cole testified
consistent with her earlier account of the assault but in somewhat less detail. The
member then sought to have her read exactly what was on the document. The military
judge excused the members and allowed argument from the parties about the question.

3
 The military judge in this case used the common practice of requiring all member questions to be submitted in
writing and screened for potential objection by both parties before asking the question himself on behalf of the
member.




                                                       3                                            ACM 38606
Trial defense counsel objected, arguing that it called for hearsay. The discussion turned
to the definition of hearsay as it relates to prior consistent statements under Mil. R. Evid.
801(d)(1)(b). After some deliberation, including a recess for the parties to consult case
law on the topic, the military judge ruled:

              the evidence has raised recent motives—when I say “recent” I
              mean since 2010—evidence has been presented that Ms. Cole
              had recent motives to lie, to fabricate her testimony here in
              court. That certainly was the implication from the evidence
              presented thus far. The court finds that the statement
              contained in the 2010 protective order is consistent with the
              testimony here in court. So, I will allow the limited portion
              of the protective order that addresses essentially what the
              witness has already testified to here on the stand. I didn’t
              note that there was any difference in the 2010 protective order
              from what she testified to in response to [the member’s]
              question. So, I will allow that portion of the 2010 protective
              order to be published to the members.

Consistent with that ruling, the Government prepared a redacted version of the protective
order which was provided to the members. The members, who had difficulty reading the
exhibit, sought to have Ms. Cole read the exhibit aloud. The military judge allowed her
to read directly from the exhibit as best she could.

       After one more question as to the date of the protective order, the members took a
90-minute lunch break. When they returned, they deliberated for less than 18 minutes
before returning their findings of not guilty as to sexual assault, but guilty of, among
other offenses, pushing Ms. Cole down onto the treadmill.

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

                 Admission of Redacted Application for Protective Order

       Appellant argues that the military judge erred by admitting the redacted contents
of the 2010 petition for a protective order as a prior consistent statement by Ms. Cole.
We review a military judge’s ruling on the admissibility of evidence for abuse of
discretion. United States v. Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010). “The abuse of
discretion standard is a strict one, calling 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) (quoting United States v. Lloyd,
69 M.J. 95, 99 (C.A.A.F. 2010)) (internal quotation marks omitted).




                                              4                                    ACM 38606
        While hearsay evidence is generally not admissible, a prior consistent statement of
a witness may fall outside the definition of hearsay in some circumstances. Mil. R. Evid.
801(d)(1)(B) provides that a statement is not hearsay if the declarant testifies and is
subject to cross-examination about a prior statement, and the statement “is consistent
with the declarant’s testimony and is offered to rebut an express or implied charge that
the declarant recently fabricated it or acted from a recent improper influence or motive in
so testifying.”

       The Analysis section of the Manual explains:

              [o]n its face, the Rule does not require that the consistent
              statement offered have been made prior to the time the
              improper influence or motive arose or prior to the alleged
              recent fabrication. Notwithstanding this, the Supreme Court
              has read such a requirement into the rule. Tome v. United
              States, 513 U.S. 150 (1995); see also United States v. Allison,
              49 M.J. 54 (C.A.A.F. 1998).

Manual for Courts-Martial, United States, app. 22 at A22-61 (2012 ed., as supplemented
by Exec. Order No. 13643, 78 Fed. Reg. 29559 (May 15, 2013)).

        The courts have articulated two reasons for the exception codified in Rule
801(d)(1)(B). The first is that a statement made before a motive to fabricate arose is by
definition not subject to that influence and may therefore be used both in support of the
testimony at trial as well as substantive evidence. See Tome, 513 U.S. at 158. The
second justification for such a broad rule is that “[i]n a sense, admissibility of such
declarations is a matter of choice by the party opposed to the witness, who may open the
door to the use of such statements by engaging in a particular kind of impeachment, or
leave the door shut by refraining.” United States v. Morgan, 31 M.J. 43, 46 (C.M.A.
1990) (quoting D. LOUISELL AND C. MUELLER, FEDERAL EVIDENCE § 420 at 187 (1980))
(internal quotation marks omitted).

        During cross-examination, trial defense counsel sought to undermine Ms. Cole’s
specific testimony about the assault in two primary ways. The first was to undermine her
testimony with inconsistent details she gave in a sworn statement to security forces in
December 2012 and the second was to challenge a photo of bruises admitted during her
direct examination.

      Trial defense counsel first focused on three details from Ms. Cole’s 2012 sworn
statement. The first concerned her testimony on direct examination about an




                                             5                                   ACM 38606
incriminating remark by Appellant just prior to the assault.4 Counsel pointed out that she
never mentioned the incriminating remark in her sworn statement in 2012. He also
brought out allegations she made apparently for the first time in the 2012 statement that
in the immediate aftermath of the assault, Appellant kicked her dog when the dog tried to
protect her from further harm. Trial defense counsel later asked Ms. Cole’s daughter, the
only other witness who testified about the assault, if she remembered Appellant kicking
the dog. The daughter testified she did not. The final detail concerned who called the
police after the assault. Trial defense counsel pointed out that the 2012 statement says
Ms. Cole called police herself, when other accounts she gave indicated that her daughter
called the police.

       The second approach to undermining Ms. Cole’s account of the assault concerned
the authenticity of a photo of bruises Ms. Cole testified about on direct examination. The
Government had admitted a photo showing two dark purple bruises on Ms. Cole’s
buttocks. Ms. Cole had testified that the photo showed what the bruises looked like “a
few hours” after the assault. Trial defense counsel pointed out that immediately after the
assault she told police that she did not know if she had any bruises, implying the
statement to police was inconsistent with having the dark purple bruises shown in the
photo a mere few hours later. He asked her, “In your experience, do you have bruises
like this that show up two hours after something happens?” to which she responded,
“No.”

        This multi-faceted approach to undermining Ms. Cole’s testimony makes it
difficult to identify a single charge or implication of recent fabrication or improper
motive that might open the door to a prior consistent statement. “Where multiple motives
to fabricate or multiple improper influences are asserted, the statement need not precede
all such motives or inferences, but only the one it is offered to rebut.” Allison, 49 M.J. at
57. The military judge found “evidence ha[d] been presented that Ms. Cole had recent
motives to lie, to fabricate her testimony . . . in court,” but he did not enumerate any
particular express or implied charge. Trial defense counsel laid out at least one theory in
opening statements: “[I]n 2010, divorce was filed again, and that divorce was completed
in December 2012. It was a bitter divorce, and you’ll hear that. There was a hotly
contested custody dispute. And that is when the accusations started.” Trial defense
counsel returned to the custody issue again in his cross-examination of Ms. Cole, asking
whether custody of the youngest daughter was a “big issue” in the second divorce. That
theory continued into argument, where defense counsel argued, “As you’ve heard, there’s
been a lot of back-and-forth over this heated custody battle. You also have heard, as part
of that, these escalating allegations by [Ms.] Cole that have no basis in fact whatsoever; a

4
  Ms. Cole had testified about an exchange on the stairs just prior to the assault where Appellant rushed past her
causing her to push herself against the wall. Appellant asked her, “What, are you scared?” When she responded
that she was, according to her, Appellant said, “Good.”




                                                        6                                            ACM 38606
clear intent on her part to throw dirt on her ex-husband with nothing to support it.” While
trial defense counsel made that argument in the context of the sexual assault charges, he
later incorporated it in the context of the assault charge, saying “the issue here, members,
is strictly whether you believe the government’s primary witness, whether you believe
[Ms.] Cole, just as with the sexual assault cases [sic].” Accordingly, the record supports
the military judge’s finding that there was at least one recent motive to fabricate charged
by Appellant.

       The final element of our analysis is to evaluate whether the prior consistent
statement was offered to rebut that recent charge or implication. In this case, the
evidence was elicited directly by the members, so the record does not contain an explicit
proffer of how the prior statement would be used. However, we can still evaluate the
extent to which the statement in the protective order accorded with that portion of
Ms. Cole’s testimony at trial that dealt with a subject that was challenged by the defense.
We concur with the military judge that her testimony at trial was generally consistent
with the statement in the protective order. We also find that the defense implied Ms.
Cole had a motive to lie about the particular subject of the assault by challenging her in-
ourt testimony about the assault with details contained in a sworn statement provided
during the custody dispute.

       We find that the military judge did not abuse his discretion by allowing the
publication of the prior consistent statement under Mil. R. Evid. 801(d)(1)(B).

                                    Improper Argument

       Appellant also claims that the trial counsel engaged in improper argument during
the sentencing phase of the trial. Appellant argues trial counsel’s characterization of the
United States as a victim of the offenses, including a statement that the members had a
duty to examine the evidence and “give the United States a just sentence,” was improper.
He also argues that trial counsel’s repeated references to adulterous conduct were
improper. Appellant also cites as improper trial counsel’s argument based on facts not in
evidence when trial counsel alleged that Appellant was sending nude photographs of
himself to others. Finally, he argues that trial counsel mischaracterized statements in the
providence inquiry which were played for the members.

       Improper argument involves a question of law that this court reviews de novo.
United States v. Marsh, 70 M.J. 101, 104 (C.A.A.F. 2011). In this case, trial defense
counsel objected to some of the arguments they now cite as improper but failed to object
to others. The military judge sustained each objection. If trial defense counsel failed to
object to the argument at trial, we review for plain error. Id.; United States v. Burton, 67
M.J. 150, 152 (C.A.A.F. 2009). To establish plain error, Appellant must prove:
“(1) there was an error; (2) it was plain or obvious; and (3) the error materially prejudiced
a substantial right.” Marsh, 70 M.J. at 104 (quoting United States v. Erickson, 65 M.J.



                                             7                                     ACM 38606
221, 223 (C.A.A.F. 2007)) (internal quotation marks omitted). Appellant also includes in
his assignment of error argument to which the military judge sustained an objection.
Appellant did not, however, seek any additional curative instruction prior to the military
judge’s procedural instructions on sentencing. Accordingly, we apply plain error review
to those aspects of trial counsel’s argument as well. See United States v. Jenkins,
54 M.J. 12, 19 (C.A.A.F. 2000); United States v. Stargell, 49 M.J. 92, 94 (C.A.A.F.
1998).

       Trial counsel is expected to zealously argue for an appropriate sentence, so long as
the argument is fair and reasonably based on the evidence. United States v. Kropf,
39 M.J. 107, 108 (C.M.A. 1994). Error occurs when counsel fail to limit their arguments
to “the evidence of record, as well as all reasonable inferences fairly derived from such
evidence.” United States v. Baer, 53 M.J. 235, 237 (C.A.A.F. 2000) (citing United States
v. Nelson, 1 M.J. 235, 239 (C.M.A. 1975)). Even within the context of the record, it is
error for trial counsel to make arguments that “unduly . . . inflame the passions or
prejudices of the court members.” Marsh, 70 M.J. at 102 (alteration in original) (quoting
United States v. Schroder, 65 M.J. 49, 58 (C.A.A.F. 2007)) (internal quotation marks
omitted); see also Rule for Courts-Martial (R.C.M.) 919(b), Discussion.

       Assuming arguendo there was plain error, Appellant still has the burden of
demonstrating a material prejudice to his substantial rights. Assessing prejudice
“involves a balancing of three factors: (1) the severity of the misconduct, (2) the
measures adopted to cure the misconduct, and (3) the weight of the evidence supporting
the conviction.” United States v. Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005), cited in
United States v. Frey, 73 M.J. 245, 249 (C.A.A.F. 2014). In making this assessment, we
consider whether “trial counsel’s comments, taken as a whole, ‘were so damaging that we
cannot be confident that [the appellant] was sentenced on the basis of the evidence
alone.’” Frey, 73 M.J. at 249 (alteration in the original) (quoting United States v. Halpin,
71 M.J. 477, 480 (C.A.A.F. 2013)).

       Of all of the claims of improper argument, we consider only one to be of any
significant severity, the repeated allusions to the adulterous nature of Appellant’s
relationships with the women depicted in the sexually explicit images. These comments,
however, were effectively addressed by the military judge, who instructed the panel,

              [T]rial counsel has referred several times to individuals not
              the accused’s wife. The accused is not charged with any
              sexual offense with a person not his wife, so I direct you that
              that is not proper aggravation evidence in this case. I direct
              you to ignore references to a person not his wife.

When the trial counsel later listed the numerous names under which Appellant had stored
explicit photos, the military judge reiterated this previous instruction: “I will remind you


                                             8                                    ACM 38606
that the accused is not to be sentenced for any implied infidelity. He’s not charged with
that. He’s to be sentenced for the offenses of which he has been convicted.”

       Trial counsel’s other asserted missteps were not substantial in the context of his
entire argument. Although he referred to the United States as a victim, he did not do so
in a manner that would inflame the passions of the members. Similarly, trial counsel’s
sole reference to facts not in evidence was immediately and properly subject to a defense
objection, which the judge sustained. While we find unobjectionable trial counsel’s
suggestion that the members go beyond Appellant’s bare-bones description of his
conduct in deriving a just sentence, we agree that trial counsel’s assertion “[t]he biggest
impact to the Air Force is him” failed to rationally relate any of the evidence to what
might be an appropriate sentence. However, that unwarranted reference to Appellant’s
identity as aggravating in itself was limited to that single instance. Finally, we are not
persuaded that a reasonable member would take trial counsel’s assertion that Appellant’s
“good face,” i.e., his sentencing exhibits, did not matter to be a suggestion that they
should not consider them at all. We conclude that a reasonable member would take such
language as trial counsel’s suggestion that they should give them little weight, a
permissible form of argument.

       Even if trial counsel’s comments were improper, we are confident Appellant was
sentenced on the basis of the evidence alone. The weight of the evidence in this case
“amply supports the sentence imposed by the panel.” Halpin, 71 M.J. at 480. Appellant
pled guilty to two of the three charges of which he was convicted, and the members
thoroughly tested the evidence with regard to the assault through their engagement and
direct questioning during the findings phase. Furthermore, the members’ sentence was
directly responsive to Appellant’s own unsworn statement, in which he said “[he] would
gladly spend as much time in confinement as [the members thought] appropriate if it
[meant] avoiding a punitive discharge.” Although the year of confinement is substantial,
the sentence did not include a punitive discharge. Accordingly, we find no prejudice to
Appellant’s rights in this regard.

                                 Victim Impact Statement

       Appellant claims, for the first time on appeal, that the content of the victim impact
statement constituted error in the staff judge advocate’s recommendation. According to
Appellant, the statement’s content was impermissible under the applicable Air Force
Instruction. Whether post-trial processing was properly completed is a question of law
we review de novo. United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000). R.C.M.
1106(f)(6) provides: “Failure of counsel for the accused to comment on any matter in the
recommendation or matters attached to the recommendation in a timely manner shall




                                             9                                    ACM 38606
waive later claim of error with regard to such matter in the absence of plain error.”5
Accordingly, we apply the test for plain error set out above.

       Assuming without deciding that the content of the victim impact statement
rendered the staff judge advocate’s advice plainly erroneous, Appellant was not
materially prejudiced. Pursuant to R.C.M. 1107(b)(3)(B)(iii), the convening authority
may consider “[s]uch other matters as the convening authority deems appropriate.
However, if the convening authority considers matters adverse to the accused from
outside the record, with knowledge of which the accused is not chargeable, the accused
shall be notified and given an opportunity to rebut.” Appellant was given a copy of the
victim impact statement and chose not to object to the statement or rebut it. The
convening authority had discretion to consider it independent of the regulatory provisions
concerning victim impact statements. Accordingly, Appellant was not materially
prejudiced by any alleged regulatory defect in handling the statement.

                                              Post-trial Delay

       Finally, Appellant asserts that this court should grant him meaningful relief in light
of the 48 days that elapsed between the convening authority’s action and docketing with
this court. Under United States v. Moreno, courts apply a presumption of unreasonable
delay “where the record of trial is not docketed by the service Court of Criminal Appeals
within thirty days of the convening authority’s action.” United States v. Moreno, 63 M.J.
129, 142 (C.A.A.F. 2006). Appellant does not assert any prejudice, but argues that the
court should nonetheless grant relief under United States v. Tardif, 57 M.J. 219, 223–24
(C.A.A.F. 2002).

        This court set out a non-exhaustive list of factors we consider when evaluating the
appropriateness of Tardif relief in United States v. Bischoff, 74 M.J. 664, 672 (A.F. Ct.
Crim. App. 2015). See also United States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App.
2015) (articulating factors specifically tailored to answer the question of whether Tardiff
relief is appropriate). The factors include the length and reasons for the delay, the length
and complexity of the record, the offenses involved, and evidence of bad faith or gross
negligence in the post-trial process. Appellant has not asserted any additional factors that
merit consideration in this case. The length of the delay only exceeded the standard by
18 days. The Government, however, offers no reason for the delay. The record was
substantial, comprised of a 929-page transcript and spanning 8 volumes. The offenses,
one of which entailed physical injury to a victim, were not insignificant. There was no
evidence of bad faith or gross negligence. On the contrary, the processing time from trial
to action, even with a proceeding in revision, was only 89 days. The total processing

5
  Despite the use of the term waiver in Rule for Courts-Martial 1106(f)(6), failure to object legally constitutes
forfeiture. See United States v. Sousa, 72 M.J. 643, 651–52 (A.F. Ct. Crim. App. 2013).




                                                       10                                           ACM 38606
time in this case from trial to docketing was only 137 days. In light of that overall timely
handling, we find the delay from action to docketing, although presumptively
unreasonable, to be reasonable in this case and conclude no Tardif relief is warranted.

                                          Conclusion

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



              FOR THE COURT



              LEAH M. CALAHAN
              Deputy Clerk of the Court




                                              11                                  ACM 38606
