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

                               No. ACM 39576
                          ________________________

                             UNITED STATES
                                 Appellee
                                       v.
                        Derek J. MCINNIS
          Airman First Class (E-3), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                           Decided 29 May 2020
                          ________________________

Military Judge: Matthew D. Talcott.
Approved sentence: Dishonorable discharge, confinement for one year
and 10 months, forfeiture of all pay and allowances, reduction to E-1,
and a reprimand. Sentence adjudged 1 August 2018 by GCM convened
at Peterson Air Force Base, Colorado.
For Appellant: Major David A. Schiavone, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Anne
M. Delmare, USAF; Mary Ellen Payne, Esquire.
Before MINK, LEWIS, and D. JOHNSON, Appellate Military Judges.
Judge D. JOHNSON delivered the opinion of the court, in which Sen-
ior Judge MINK and Judge LEWIS joined.
                          ________________________

   This is an unpublished opinion and, as such, does not serve as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

D. JOHNSON, Judge:
    A general court-martial composed of a military judge convicted Appellant,
contrary to his pleas, of one specification of sexual abuse of a child, in viola-
tion of Article 120b, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
                     United States v. McInnis, No. ACM 39576


§ 920b, and one charge and specification of unlawful entry in violation of Ar-
ticle 134 UCMJ, U.S.C. § 934. 1 The military judge sentenced Appellant to a
dishonorable discharge, confinement for one year and 10 months, forfeiture of
all pay and allowances, reduction to the grade of E-1, and a reprimand. The
convening authority approved the adjudged sentence.
    Appellant raises five issues on appeal: (1) whether the military judge
erred when he determined that Appellant’s mistake of fact as to the identity
of the victim only related to a general intent element of the crime and there-
fore must have been objectively reasonable; 2 (2) whether the evidence was
legally and factually sufficient to support his conviction for sexual abuse of a
child; (3) whether the military judge abused his discretion in failing to sup-
press Appellant’s statement to Carnival Cruise Lines security personnel
which was obtained without a rights advisement; (4) whether Appellant’s tri-
al defense counsel were ineffective for failing to seek suppression of Appel-
lant’s statements to the Air Force Office of Special Investigations (AFOSI); 3
and (5) whether the military judge erred by admitting Court Exhibit 1, the
“unsworn statement” of AR’s biological mother, in violation of Rule for
Courts-Martial (R.C.M.) 1001A(c). Issues (3) and (4) warrant no further dis-
cussion or relief. See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987).
Finding no error materially prejudicial to Appellant’s substantial rights, we
affirm the findings and sentence.

                                   I. BACKGROUND
   Appellant and his family were on the Carnival Triumph cruise ship in the
Gulf of Mexico heading for New Orleans, Louisiana, after departing from
Mexico in late November 2017. Although Appellant was traveling with his
mother, his mother’s boyfriend, and the boyfriend’s family, Appellant had his
own cabin (number 2238).
   While on the cruise Appellant had seen a woman, later identified as MB,
whom he found attractive and wanted to ask out. Appellant did not know
MB’s name; he just saw her in the hallway and followed her back to her cabin
(number 2338). MB’s cabin was on the same level as Appellant’s cabin but the


1All references to the Uniform Code of Military Justice (UCMJ) and Rules of Courts-
Martial are to the Manual for Courts-Martial, United States (2016 ed.).
2   For ease of discussion we renumbered assignments of error (1) and (2).
3Appellant submits issues (1), (3) and (4) pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982).




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                   United States v. McInnis, No. ACM 39576


two cabins were not close to each other. Once MB entered her cabin, Appel-
lant decided he wanted to talk to MB so he knocked on her door with the in-
tention of asking MB to “hang out.” He knocked on her door on at least two
occasions, about two or three minutes apart. After knocking, Appellant be-
came nervous, so both times when MB answered the door Appellant told her
he had the “wrong room” or that he was “looking for someone else.” 4
    On the fifth and final night of the cruise, after Appellant’s traveling com-
panions had gone to bed, Appellant purchased four double Crown Royal
whiskey and cokes, and then two shots of another whiskey at the dance club
all within about an hour and 15 minutes. Appellant would later tell investi-
gators that he consumed all the drinks he purchased and that he consumed
one or two more drinks with “some other friends he met onboard.” If Appel-
lant’s statements to investigators are accurate, he consumed a total of eleven
or twelve drinks.
    Between 0430 and 0630, 5 Appellant walked toward cabin 2338. Two doors
down was cabin 2330. The ship’s security footage showed Appellant swaying
and leaning against the wall as he walked down the passageway. However,
testimony at trial revealed the ship was “shifty” that night because of damage
to the propeller. The security footage showed Appellant standing outside cab-
in 2330 for approximately two and a half minutes at which point he entered
the room through the cabin’s single door which was unsecured.
   Inside cabin 2330 was AR, a 7-year-old girl; HB, AR’s godfather and
guardian; QH, AR’s godmother and guardian; and TW, another child. HB and
QH were sleeping in a queen bed, and AR and TW slept on bunk beds at-
tached to different walls. When folded down, the bunk beds extended into the
cabin at a height of approximately four to five feet above the deck. AR’s bunk
was on the right wall as one walks into the cabin and extended over the
queen bed, TW’s bunk was attached to the wall over the head of the queen
bed. Security footage revealed that Appellant was in AR’s room for approxi-
mately nine minutes before he emerged from the room.




4 While it is not clear what day Appellant knocked on MB’s door, it did not occur on
the last night of the cruise. MB testified it was daylight and before breakfast when a
“tall” young man knocked on her door at least twice about 15 minutes apart.
5Still pictures of the security footage admitted at trial has a time stamp of 0430 and
security footage admitted at trial has a time stamp of 0630. Special Agent (SA) AP, of
the Federal Bureau of Investigation testified Appellant stated it was around 0530.
The exact timing is not needed for our analysis.




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                   United States v. McInnis, No. ACM 39576


   AR testified that she awoke to a “white man” rubbing her back at which
point she called out for her godmother, QH. HB testified that he awoke to AR
saying “Mom. Mom. Someone’s in our room,” and he observed Appellant eas-
ing towards the door. HB saw Appellant due to the illumination of the bath-
room light which was kept on for the children. When HB asked Appellant
what he was doing in their room, Appellant “bolted” towards the door, exited
and ran. Security footage showed Appellant running from AR’s cabin with HB
chasing after him.
   On the security footage Appellant is seen running through the various
ship passageways and falling on two occasions. During one fall Appellant’s
pants are falling down to thigh level. After evading HB, later footage shows
Appellant’s hands in front of his waist as if he was closing or adjusting his
pants.
    After Appellant adjusted his pants, HB caught up to Appellant. HB testi-
fied he asked Appellant what he was doing in their room, but Appellant did
not respond. HB began walking Appellant to the security desk holding onto
Appellant’s shirt. HB testified that although he was holding onto Appellant’s
shirt, Appellant was walking on his own. Once HB and Appellant entered the
elevator, Appellant started to slump over like he was “really, really intoxicat-
ed” and at that point HB said to Appellant, “Man, stand up. You’re not that
drunk.” At that point, Appellant stood back up. Once they arrived at the ser-
vice desk, Appellant again began to slump. HB testified that Appellant
“smelled drunk.”
    Cruise ship personnel placed Appellant in a wheelchair and wheeled him
to the medical center. A cruise ship employee testified this was a precaution-
ary measure because Appellant’s eye was bleeding and he would not respond
to questions. 6 The employee also testified that Appellant smelled of alcohol,
had blood shot eyes, and appeared inebriated, but was able to sit up in the
wheelchair.
    After returning from the medical center, Appellant was detained by Car-
nival security personnel in a stateroom on the cruise ship. The chief security
officer aboard the ship, AS, interviewed Appellant. 7 When AS asked Appel-
lant if he remembered anything, Appellant said he remembered drinking a

6There was evidence introduced at trial that Appellant may have been punched by
one of HB’s sons who were also on the cruise, but not staying in HB’s cabin.
7Cruise ship personnel did not read Appellant his Miranda rights which formed the
basis for the Defense’s motion to suppress Appellant’s statements which was denied
by the military judge, and this court found warranted no further discussion or relief.




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                      United States v. McInnis, No. ACM 39576


lot of alcohol. When asked whether he remembered entering somebody else’s
cabin or running out of the cabin, Appellant replied “I don’t remember any-
thing else. I don’t remember going to somebody else’s cabin or running out.”
    Once the ship docked in New Orleans, Special Agent (SA) AP and SA CB
with the Federal Bureau of Investigation (FBI) and Task Force Officer Detec-
tive AW, boarded the ship, reviewed the security footage, and interviewed
Appellant. 8 SA CB and Detective AW were also present for Appellant’s inter-
view. SA AP testified at trial that Appellant told him “multiple stories.” Ap-
pellant first told SA AP that he had been drinking, decided to return to his
own cabin, but entered the wrong cabin. After entering the wrong cabin, Ap-
pellant was feeling his way around the cabin “in a circular motion” when he
touched a little girl, who eventually screamed. This “freaked [Appellant] out”
who “knew what he was doing was wrong,” so he ran out of the room, “chased
by the little girl’s father.”
    About halfway through the interview, SA AP and Detective AW departed
and Appellant spoke to SA CB alone. SA CB testified that Appellant ex-
plained for the first time that he had previously seen a 30-year-old female on
the ship who he did not know, but found attractive and that he had knocked
on her door a few times. 9 After SA AP and Detective AW rejoined the inter-
view, Appellant then explained that sometime around 0530 he wanted to find
this woman to have sex with her, so he went to her hallway, but he didn’t re-
member exactly which room she was in. Appellant discovered a cabin door
that was not fully closed, so he waited outside the room for a few minutes and
then entered. Appellant told the agents he knew what he was doing was
wrong; that he was not allowed to enter that cabin; that he was not invited
into the room; that he decided to enter anyway; and that his sole intention
was to try to arouse the female in order to have sex with her.
   Appellant further informed the two FBI agents and Detective AW that as
he entered the room he felt his way around until he came to the bunk bed on
the right which was at eye level. SA AP testified that Appellant told investi-
gators that
          while [Appellant] was in the room, he . . . was trying to wake
          up the female to have sex and he was rubbing her back. At one
          point [Appellant] said . . . it was in a circular motion, and [Ap-
          pellant] moved approximately 2 inches lower on her back, still


8   The record does not reveal which jurisdiction Task Force Officer AW represented.
9   MB was 38 years old at the time of the cruise.




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                 United States v. McInnis, No. ACM 39576


       rubbing her back, and he was sexually aroused, and he doesn’t
       remember unzipping his pants, but it’s possible that he could
       have, and it’s also possible that he was masturbating.
    Several weeks later, Appellant was interviewed by special agents of the
AFOSI. Appellant’s interview was video recorded and admitted at trial. After
waiving his rights under Article 31, UCMJ, 10 U.S.C. § 831, Appellant told
the AFOSI agents different versions of the events just as he had earlier told
different versions of the events to the FBI agents and Detective AW. First,
Appellant told the AFOSI agents he was looking for the lady he “met a while
back” to see if she wanted “to do something.” Appellant could not remember
which cabin the woman was in and the numbers “started getting all wobbly”
to him so he decided to return to his own cabin. As he was returning to his
cabin, he entered the cabin “where the girl was” which he thought was his
room. The room was dark so he was feeling around when he heard the girl
scream and realized it was not his cabin. He thought “I need to get out of
here” but didn’t remember running, but thought he remembered falling. Ap-
pellant next remembered a doctor “touching him up a little” and then being
back in his room. Appellant did not respond, when pressed by AFOSI, on why
he did not turn on the light if he thought he had entered his room.
    Later in the video recorded interview, Appellant told AFOSI that he en-
tered the room looking for “the 30-year-old woman;” but the cabin numbers
were getting blurry. He thought he found her room and went to knock on the
door. When he went to knock, he noticed the door was open and he went in-
side the “dimly lit” cabin. Even though the room was dimly lit, Appellant
could not “tell what was what.” As he felt around, he thought he “found her”
and was attempting to wake her by rubbing her back through her shirt. Ap-
pellant did not remember saying anything to her but started to “touch him-
self through his pants.” He said he “heard the girl scream” and he ran out of
the room. Appellant remained adamant throughout the interview that he did
not remember unzipping or undoing his pants, his pants falling down, or be-
ing punched.

                             II. DISCUSSION
A. Mistake of Fact
   1. Additional Background
   Prior to closing arguments on findings, the military judge indicated he
would consider mistake of fact as to identity as a defense applicable to the
sexual abuse of a child offense. He informed counsel that in Appellant’s case,
there are only two elements: “sexual contact with a child with the intent to
gratify sexual desire.” He further stated that he was “struggling to see the


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                   United States v. McInnis, No. ACM 39576


element [the mistake of fact defense] would eliminate,” but as to “the identity
issue, if it negates an element, to [him], [it] could only negate the child ele-
ment.” While trial defense counsel conceded there was no specific intent re-
quirement for the first element of sexual abuse of a child, trial defense coun-
sel asserted only an “honest,” not an “honest and reasonable,” mistake of fact
as to identity of the victim was required.
   Trial defense counsel further argued that the second element of sexual
abuse of a child should be read “in conjunction” with the first element, thus
requiring a specific intent to gratify his sexual desire by touching a child.
Trial defense counsel explained:
       So essentially it would go to that -- essentially that mens rea,
       as far as the specific intent to gratify his sexual desire by
       touching a child. So looking at the second element that he did
       so with -- that he did so. He did touch the child with the intent
       to, in this case, gratify his own sexual desire.
     Trial defense counsel conceded he could not cite any case law to support
his position and noted it was a “novel issue.” Trial counsel argued, “there are
two separate elements and that the act of touching a child is general intent,”
and if the military judge considers a mistake of fact defense “it’s honest and
reasonable versus just honest.” The military judge agreed with the trial coun-
sel. 10
   On appeal, Appellant renews the argument that his mistake of fact as to
identity only must be honest, not honest and reasonable. Appellant contends
that the words “did so” in the second element of sexual abuse of a child “nec-
essarily incorporate[s] the first element” of sexual contact upon a child.


10 While the parties, to include the military judge, did not refer to the Military Judg-
es’ Benchbook, it provides the following guidance as to when a mistake must be “hon-
est and reasonable.”
        The standard for ignorance or mistake of fact varies with the nature
        of the elements of the offense involved. If the ignorance or mistake
        concerns an element of an offense involving specific intent (e.g., de-
        sertion, larceny), willfulness (e.g., willful disobedience of an order),
        knowledge (e.g., assault upon commissioned officer, failure to obey
        lawful order), or premeditation, the ignorance or mistake need only
        exist in the mind of the accused. Generally, for crimes not involving
        specific intent, willfulness, knowledge, or premeditation, (e.g., AWOL)
        ignorance or mistake must be both honest (actual) and reasonable.
Military Judges’ Benchbook, Dept. of the Army Pamphlet 27-9 at 1697 (29 Feb. 2020).




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                  United States v. McInnis, No. ACM 39576


    The Government responds (1) that mistake of fact as to identity is not a
defense at all because AR was under 12 years of age; (2) even if mistake of
fact as to identity could be an appropriate instruction, the plain text of the
statute implies that the mistake must be both honest and reasonable because
the first element of touching a child is a general intent element; and (3) even
if this court finds that the mistake of fact as to identity only needed to be
honest, not honest and reasonable, Appellant was not prejudiced.
   2. Law
    “The mens rea applicable to an offense is an issue of statutory construc-
tion, reviewed de novo.” United States v. McDonald, 78 M.J. 376, 378
(C.A.A.F. 2019). “In determining the mens rea applicable to an offense, we
must first discern whether one is stated in the text, or, failing that, whether
Congress impliedly intended a particular mens rea.” Id. at 378–379 (citation
omitted).
    “As in all statutory construction cases, we begin with the language of the
statute.” Id. at 379 (quoting Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450
(2002)). Appellant was charged with sexual abuse of a child in violation of Ar-
ticle 120b, UCMJ, which provides that “[a]ny person subject to this chapter
who commits a lewd act upon a child is guilty of sexual abuse of a child. . . .”
Manual for Courts-Martial, United States (2016 ed.) (MCM), pt. IV, ¶
45b.a.(c). A lewd act is defined as “any sexual contact with a child.” MCM, pt.
IV, at ¶ 45b.a.(h)(5)(A). Sexual contact is defined as “any touching, . . . either
directly or through the clothing, any body part of any person, if done with an
intent to arouse or gratify the sexual desire of any person.” MCM, pt. IV, at ¶
45.a.(g)(2)(B).
    The elements of sexual abuse of a child are (1) that “the accused commit-
ted sexual contact upon a child by touching, . . . either directly or through the
clothing, any body part of any person;” and (2) that “the accused did so with
intent to arouse or gratify the sexual desire of any person.” MCM, pt. IV, at ¶
45b.b.(4)(b).
     The plain reading of the statute indicates that while sexual abuse of a
child includes a specific intent element as to whether the touching was com-
mitted with the intent to arouse or gratify the sexual desire of any person,
the fact the person being touched was a child is a general intent element. Cf.
United States v. DiPaola, 67 M.J. 98, 101 (C.A.A.F. 2008) (finding that an in-
decent assault offense includes both specific and general intent elements, and
it is the general intent element as to consent that requires both a subjective
belief of consent and a belief that was reasonable under all circumstances).
   There is “a critical distinction, long recognized in the corpus of law involv-
ing sex offenses, between a mistake of fact that goes to degree of legal and


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                  United States v. McInnis, No. ACM 39576


moral turpitude, on the one hand, and a mistake of fact that goes to whether
the act was legally or morally wrong at all, on the other hand.” United States
v. Adams, 33 M.J. 300, 302 (C.M.A. 1991). “The pertinent inquiry is whether
the purported mistake concerns a fact which would preclude the existence of
the required specific intent.” United States v. Binegar, 55 M.J. 1, 5 (C.A.A.F.
2001).
    It is a defense to sexual abuse of a child that the Appellant reasonably be-
lieved that a child had attained the age of 16 years if the child had in fact at-
tained at least the age of 12 years. MCM, pt. IV, at ¶ 45b.a.(d)(2). “It is not a
defense that the accused reasonably believed that the child had attained the
age of 12 years.” MCM, pt. IV, at ¶ 45b.a.(d)(1).
   R.C.M 916(j)(1) states:
       it is a defense to an offense that the accused held, as a result of
       ignorance or mistake, an incorrect belief of the true circum-
       stances such that, if the circumstances were as the accused be-
       lieved them, the accused would not be guilty of the offense. If
       the ignorance or mistake goes to an element requiring premedi-
       tation, specific intent, willfulness, or knowledge of a particular
       fact, the ignorance or mistake need only have existed in the
       mind of the accused. If the ignorance or mistake goes to any
       other element requiring only general intent or knowledge, the
       ignorance or mistake must have existed in the mind of the ac-
       cused and must have been reasonable under all the circum-
       stances.
   3. Analysis
    Mistake of fact as to identity means Appellant held, as a result of igno-
rance or mistake, an incorrect belief that he was touching MB and not AR.
See id. We assume without deciding that mistake of fact as to identity de-
fense is different than a mistake of fact as to age defense. If Appellant was
honestly mistaken, it was to the identity of AR, not her age. See Adams, 33
M.J. at 301 (mistake of fact as to a sex partner’s identity is a legal defense to
carnal knowledge where accused was asleep in his own bed and believed it
was his wife fondling and arousing him, and not his niece). The remaining
question is whether, to be a defense, a mistake of fact as to identity must
have existed in the mind of Appellant (that is, the mistake need only be hon-
est), or must have also been reasonable. See Binegar, 55 M.J. at 5; at 7 (con-
curring opinion); R.C.M. 916(j)(1).
   To be a defense, Appellant’s mistake of fact must have existed in his mind
and been reasonable under all the circumstances. See DiPaola, 67 M.J. at
101; R.C.M. 916(j)(1). As such, Appellant’s mistake of fact as to the identity of


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                  United States v. McInnis, No. ACM 39576


AR has two elements, one subjective and one objective. “For the subjective
element, the ignorance or mistake must have existed in Appellant’s mind. For
the objective test, the ignorance or mistake must be reasonable under all the
circumstances as assessed by an ordinary, prudent, sober adult.” United
States v. Moore, No. ACM S32477, 2018 CCA LEXIS 560, at *12 (A.F. Ct.
Crim. App. 11 Dec. 2018) (unpub. op.) (citation omitted) (describing the mis-
take of fact defense to abusive sexual contact under Article 120, UCMJ, 10
U.S.C. § 920).
    For two reasons, we do not agree with Appellant that the “did so” verbiage
in the specific intent element incorporates the first element of sexual abuse of
a child transforming the first element into a specific intent element. First,
Appellant’s argument is belied by the plain language of the statute. Second,
the purported mistake of identity of AR does not concern a fact which would
preclude the existence of the required specific intent. We find the military
judge did not err.
B. Legal and Factual Sufficiency
    Appellant asserts his conviction of sexual abuse of AR is legally and fac-
tually insufficient because (1) the facts at trial demonstrated that his level of
intoxication was such that he could not form the requisite intent to arouse or
gratify his sexual desire; (2) Appellant never conceded sexual interest in AR
and his answers were qualified with “I don’t know” or “it’s possible” as Appel-
lant could not remember due to his level of intoxication; and (3) Appellant
had a reasonable mistake of fact as to the identity of the person he was touch-
ing especially in light of his level of intoxication. We are not persuaded and
find his conviction for sexual abuse of a child both legally and factually suffi-
cient.
   1. Additional Background
   At one point during Appellant’s trial, the Prosecution played the following
video recorded exchange between Appellant and SA TP of the AFOSI:
       [SA TP]: You started rubbing [AR’s] back. And then what?
       [Appellant]: I mean, just rubbing the back.
       [SA TP]: I mean, were you getting horny because you thought it
       was a 30-year-old woman's back that you were rubbing?
       [Appellant]: Yeah.
       [SA TP]: So you started getting an erection or what?
       [Appellant]: Yes, sir.
       [SA TP]: And then what?



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                  United States v. McInnis, No. ACM 39576


       [Appellant]: That’s -- I mean, I maybe touched down here (indi-
       cating), but I don’t remember unzipping my pants.
       [SA TP]: Okay. So were you touching yourself through your
       pants, then?
       [Appellant]: Yes, sir, yes.
       [SA TP]: You were?
       [Appellant]: Yes, sir.
       [SA TP]: So were you kind of beginning to masturbate?
       [Appellant]: Yes, sir,
   Later during the interview Appellant stated:
       I was feeling my way around the room. I thought I found her.
       So I was giving her a little nudge, like the “Hey, wake up” kind
       of thing. I don’t remember saying anything. I’m starting to get
       a little aroused. I started touching myself through the pants.
    At one other point during the video recorded interview SA TP asks the
Appellant: “So you remember having your hand on her back and masturbat-
ing through your pants,” at which point Appellant responds “Yes.”
    Evidence at trial demonstrated Appellant thought MB was around 30
years old. At the time of the cruise, MB was 38 years old, 66 inches tall, and
weighed between 140–150 pounds. MB testified she was “not built like a
child” and that Appellant had seen “her whole body” when he twice knocked
on her door and she opened it. MB testified she did not wear her hair in a
braid during the cruise.
   AR was measured at 52.5 inches tall during trial. During the cruise, AR
had braided hair down the length of her back with beads attached at the end.
On the night of the incident AR’s hair was pulled back in this braid.
   2. Law
    We review issues of legal and factual sufficiency de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (citation omitted). Our assess-
ment of legal and factual sufficiency is limited to the evidence produced at
trial. United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993) (citations omit-
ted).
    The test for legal sufficiency of the evidence is “whether, considering the
evidence in the light most favorable to the prosecution, a reasonable factfind-
er could have found all the essential elements beyond a reasonable doubt.”
United States v. Turner, 25 M.J. 324 (C.M.A. 1987) (citation omitted); see also
United States v. Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002) (citation omit-

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                  United States v. McInnis, No. ACM 39576


ted). “Beyond a reasonable doubt” does not mean that the evidence must be
free from conflict. United States v. Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim.
App. 2017) (citing United States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986)),
aff’d, 77 M.J. 289 (C.A.A.F. 2018). “[I]n resolving questions of legal sufficien-
cy, we are bound to draw every reasonable inference from the evidence of rec-
ord 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 the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, [we are] convinced of the [appellant]’s guilt beyond a reasona-
ble doubt.” Turner, 25 M.J. at 325. “In conducting this unique appellate role,
we take ‘a fresh, impartial look at the evidence,’ applying ‘neither a presump-
tion 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.’” Wheeler, 76 M.J. at 568 (alteration in
original) (quoting Washington, 57 M.J. at 399).
    “Voluntary intoxication may, but does not necessarily, negate the specific
intent required for some offenses.” United States v. Peterson, 47 M.J. 231, 233
(C.A.A.F. 1997) (citing United States v. Anderson, 25 M.J. 342 (C.M.A. 1987)).
“It ‘is not a defense to a general-intent crime, but it may raise a reasonable
doubt about actual knowledge, specific intent, willfulness, or premeditation
when they are elements of a charged offense.’” Id. (citing United States v.
Hensler, 44 M.J. 184, 187 (C.A.A.F. 1996)). “When raising an issue of volun-
tary intoxication as a defense to a specific-intent offense, ‘there must be some
evidence that the intoxication was of a severity to have had the effect of ren-
dering the appellant incapable of forming the necessary intent,’ not just evi-
dence of mere intoxication.” Id. at 233–34 (citation omitted).
   R.C.M. 916(l)(2) provides:
       Voluntary intoxication, whether caused by alcohol or drugs, is
       not a defense. However, evidence of any degree of voluntary in-
       toxication may be introduced for the purpose of raising a rea-
       sonable doubt as to the existence of actual knowledge, specific
       intent, willfulness, or a premeditated design to kill, if actual
       knowledge, specific intent, willfulness, or premeditated design
       to kill is an element of the offense.
    Appellant was charged with sexual abuse of a child in violation of Article
120b, UCMJ, which included the following elements: (1) that at the time and
place alleged, Appellant committed a lewd act upon AR, a child who had not
attained the age of 12 years, by touching AR’s back with his hand and (2) that
the Appellant did so with the intent to arouse and gratify his sexual desires.


                                      12
                   United States v. McInnis, No. ACM 39576


See MCM, pt. IV, ¶ 45b.b(4)(b). 11 In this case, “child” means a person who has
not attained the age of 16 years. MCM, pt. IV, ¶ 45b.a.(h)(4). A lewd act in-
cludes “any sexual contact with a child.” MCM, pt. IV, ¶ 45b.a.(h)(5). Sexual
contact is defined as “any touching . . . either directly or through the clothing,
any body part of any person, if done with an intent to arouse or gratify the
sexual desire of any person.” MCM, pt. IV, ¶ 45.a.(g)(2)(B).
     3. Analysis
    Having decided that Appellant’s mistake of fact must have existed in his
mind and been objectively reasonable, we next consider whether the evidence
is legally and factually sufficient to support a finding of guilt for sexual abuse
of a child.
        a. Level of Intoxication and Specific Intent
    Appellant first argues his state of intoxication prevented him from form-
ing the requisite intent to arouse or gratify his sexual desire. Appellant posits
that (1) Appellant’s bar receipt demonstrates that Appellant rapidly con-
sumed 11–12 drinks; (2) security footage shows Appellant clearly swaying
from the effects of alcohol; and (3) cruise ship personnel “recognized his se-
vere intoxication and took him for medical treatment.” Appellant avers these
facts “establish that Appellant was intoxicated such that he could not form
the requisite intent to gratify his sexual desire.”
    However, the Government argues that Appellant was able to recall exact-
ly how many drinks he consumed at the dance club that evening, that he left
the dance club around 0200, that he spent time conversing with other pas-
sengers and consuming another drink. He remembered his reason for going to
AR’s hallway which was to go to the room of a female passenger and engage
in sex. Appellant was able to recall that he entered the room that was not his,
feeling his way through the room until he reached a bunk bed, rubbing a per-
son’s back until he was aroused, and then running from the room once AR
called out for her mother. Although Appellant claimed to have no memory of
being chased throughout the ship by HB, undoing or unzipping his pants, his
pants falling down, or being punched, a reasonable fact-finder could find Ap-
pellant’s claimed lack of memory not credible. The Government concludes
that these facts preclude Appellant’s argument that his state of intoxication
prevented him from forming the requisite intent.

11 Although sexual contact is defined as “any touching . . . if done with an intent to
arouse or gratify the sexual desire of any person,” Appellant was charged with sexual
abuse of a child by touching AR’s back with his hand with intent to arouse and grati-
fy his sexual desires. MCM, pt. IV, ¶ 45.a.(g)(2)(B) (emphasis added).




                                         13
                  United States v. McInnis, No. ACM 39576


    In addition to the arguments made by the Government, the military
judge, as the factfinder, could have determined Appellant’s ability to run
down various ship passageways as shown on the security footage refuted Ap-
pellant’s contention that he was unable to form the specific intent due to his
level of intoxication. The military judge may have also determined that even
if Appellant’s “swaying” was from the effects of the alcohol as he claims, that
fact did not necessarily indicate a level of intoxication that raises reasonable
doubt as to the existence of specific intent.
    As to Appellant’s challenge regarding his level intoxication as observed by
cruise ship personnel, the military judge could have found that the trial tes-
timony, and security footage revealed Appellant exaggerated his level of in-
toxication when cruise ship personnel approached. The military judge heard
testimony from HB that after he and Appellant entered the elevator Appel-
lant started to “slump over” as if he were “really, really, intoxicated” but
stood back up after HB told him to because he was not that drunk. Further-
more, a cruise ship employee testified Appellant was bleeding from his eye,
and although he appeared intoxicated he was able to sit up straight in the
wheelchair.
    Finally, Appellant stated in the video recorded interview that on more
than one occasion he was aroused and touched himself through his pants,
further demonstrating his clarity of thought, and that his level of intoxication
did not raise reasonable doubt as to his specific intent to arouse and gratify
his sexual desires. A reasonable factfinder could have determined all these
facts demonstrated Appellant’s voluntary intoxication did not cause reasona-
ble doubt about his specific intent to arouse and gratify his sexual desires.
       b. Appellant Never Conceded Sexual Interest in AR
    Appellant next asserts that he never “conceded any sexual interest” in AR
when he made his statements to the FBI or AFOSI and that his statements
concerning whether he was masturbating inside the room outside his pants
or otherwise were a result of FBI and AFOSI questioning. Appellant avers he
made his statements to AFOSI because they would not accept answers of “I
don’t know” or “it’s possible;” AFOSI agents stormed out of the room in anger
when he attempted to answer with “I don’t know” or “it’s possible;” and Ap-
pellant’s statements were the result of this type of questioning by AFOSI.
However, as noted above, Appellant’s responses on whether he was aroused
and touching himself over his pants were not qualified. Appellant consistent-
ly maintained throughout the interview that he did not recall exposing his
penis; did not recall unzipping or unbuttoning his pants; and did not recall
the events after he ran from the room. Therefore, a reasonable factfinder
could have determined his argument that AFOSI’s responses to his answers
and form of questioning somehow impacted his responses, or overcame his

                                      14
                      United States v. McInnis, No. ACM 39576


will with regard to his statements concerning sexual arousal was not persua-
sive.
          c. Appellant’s Level of Intoxication and Mistake of Identity
    Finally, Appellant avers his level of intoxication contributed to his subjec-
tive belief that he was entering the room of and touching MB. Appellant ar-
gues that his mistake was reasonable considering MB and AR’s door were on-
ly separated by one door, and a single number (2330 vice 2338). A reasonable
factfinder could have determined otherwise.
    The germane question is whether Appellant had a reasonable mistake of
fact as to the identity of the person he was touching. As noted above, Appel-
lant’s mistake of fact as to the identity of AR has two elements, one subjective
and one objective. For the subjective element, the ignorance or mistake must
have existed in Appellant’s mind. For the objective test, the ignorance or mis-
take must be reasonable under all the circumstances as assessed by an ordi-
nary, prudent, sober adult. See Moore, unpub. op. at *12. Voluntary intoxica-
tion is not relevant to the question of whether Appellant had a mistake of fact
as to the identity of AR because the first element of sexual abuse of a child is
a general intent element, not a specific intent element.
    A reasonable factfinder could have determined Appellant’s claimed mis-
taken identity was not reasonable. Appellant contends he mistook a 38-year-
old woman who was 66 inches tall, weighing 140–150 pounds at the time of
the cruise with a 7-year-old girl who was 52.5 inches tall at the time of trial. 12
Furthermore, evidence at trial demonstrated that during the cruise MB had
shoulder length hair and AR had braided hair down her back to her waist
with beads at the end. Finally, AR and HB were able to see Appellant be-
cause of the bathroom light illuminating the room, indicating the cabin was
not as “dimly lit” as Appellant claimed.
    In assessing legal sufficiency, we are limited to the evidence produced at
trial and required to consider it in the light most favorable to the prosecution.
The bulk of the evidence produced at trial included Appellant’s own words to
AFOSI. While not all the evidence was free from conflict, it did not have to
be. See Wheeler, 76 M.J. at 568 (citation omitted).
   After considering all of Appellant’s challenges and drawing “every rea-
sonable inference from the evidence of record in favor of the prosecution,” the
evidence is legally sufficient to support Appellant’s conviction for sexual
abuse of a child. Barner, 56 M.J. at 134. Moreover, having weighed the evi-

12   Evidence of AR’s weight was not introduced at trial.




                                           15
                  United States v. McInnis, No. ACM 39576


dence in the record of trial and having made allowances for not having per-
sonally observed the witnesses, we are convinced of Appellant’s guilt of sexu-
al abuse of a child beyond a reasonable doubt. See Turner, 25 M.J. at 325.
Appellant’s conviction for sexual abuse of a child is therefore both legally and
factually sufficient.
C. Court Exhibit 1
    On appeal, Appellant argues that the military judge abused his discretion
when he admitted Court Exhibit 1, the unsworn statement by AR’s biological
mother (JR); and he was prejudiced because trial counsel relied on Court Ex-
hibit 1 to argue for admission of the victim impact testimony of QH. Appel-
lant avers the record does not indicate that AR’s biological mother was ever
appointed in writing as a designated advocate under R.C.M. 801(a)(6) and
R.C.M. 1001A(e). Without such appointment, Appellant argues JR may not
assume the victim’s rights under Article 6b, UCMJ, 10 U.S.C. § 806b. Appel-
lant further avers Court Exhibit 1 substantially influenced the adjudged sen-
tence and the victim impact was powerful as “loss-of-innocence arguments”
tend to be; as such, the materiality and quality of the evidence was signifi-
cant. We are not persuaded that admission of Court Exhibit 1 substantially
influenced the adjudged sentence and prejudiced Appellant.
   1. Additional Background
    AR testified during the Government’s case in findings that when she saw
Appellant in her room she was “sad” and she “just wanted to punch him in
the eye.” Both HB and QH testified during the Government’s presentencing
case concerning how Appellant’s crimes impacted their family and AR. HB
testified that it scared him that he could not protect his family because Ap-
pellant was in their room for nine minutes while he was asleep; he is absent
most nights at home due to his job and he noticed differences in his wife’s
sleep patterns since this incident; and they updated the security on their
house since the cruise for protection when he is not home. QH testified that
she was upset she could not protect AR; thinks about that night often; was
more protective of AR after the incident; has difficulty sleeping; and continu-
ously ensures doors are locked. As to the impact to AR, QH testified that AR
slept with QH after the incident, AR followed QH’s every move, and AR did
not want to be alone.
    When trial counsel asked QH whether she lost custody of AR due to Ap-
pellant’s offenses, trial defense counsel objected stating it was “not proper ag-
gravation under R.C.M. 1001” because it was “not directly related to or
caused by the offense.” At that point the following exchange occurred:




                                      16
                      United States v. McInnis, No. ACM 39576


          [Military Judge]: I don’t know what -- I don’t know what I’m
          about to hear. I guess I need to hear it and I’ll rule on whether
          I can consider it.
          [Trial Defense Counsel]: Well, Your Honor, I think counsel is
          about to get into a custody issue. It’s kind of beyond the facts of
          this case.
          [Senior Trial Counsel]: Sir, you will receive Court Exhibit 1,
          which is an unsworn statement from [JR]. She’s the biological
          mother of [AR]. And after this -- because of this incident, she
          sought custody of her biological daughter.
    After hearing the testimony about the custody issue, the trial counsel
stated: “Your Honor, I have nothing further for the witness. To consider this
evidence, you need to consider the Court Exhibit 1, which I can provide to the
Court at this time.” While providing Court Exhibit 1 to the military judge,
trial counsel stated it was an unsworn statement of JR, “the Article 6b guard-
ian of [AR].” 13 When the military judge inquired whether there was any ob-
jection from the Defense, the trial defense counsel responded “Your Honor,
just to the line about the biological mother taking custody back. Again, under
– under –it’s not proper victim impact under RCM 1001 – 1001(a).”
      After overruling the objection, the military judge clarified:




13   Court Exhibit 1 states:
          [AR] has a very big sensitivity to doors and locks. She calls and text
          me all the time while I’m at work. She likes to be under my husband
          as well when I’m not at home. One incident, I was taking her to the
          dollar store to get her a doll. They only had “white” baby dolls. [AR]
          expressed that she didn’t want the white baby doll because it remind-
          ed her of the “the man”. I wanted her to get the white baby doll to
          better explain the situation but she still didn’t want it. Even though
          she has her own room, she always wants to sleep with me. Every time
          a door locks or makes noise, she gets scared and ask “mama did you
          hear that? what was that noise?” At the Hotel in Colorado Springs,
          CO, [AR] was very curious about the doors being locked and made
          sure the deadbolt lock on the door was in place. [AR] is always under
          me when we go places and while at home. I wanted custody back be-
          cause I felt like I wasn’t there to protect her. The story didn’t make
          sense which is why I wanted her back with me because I wanted to
          keep an eye on her. When I found out what happened, I was sad and
          upset. I just wanted to have my baby back in my care.




                                           17
                 United States v. McInnis, No. ACM 39576


       I find that the reactions of [AR’s] mother to this crime directly
       impacted [AR]: It changed her living situation; it changed the
       way her mother felt about her own ability to protect her daugh-
       ter, about her own abilities to be the mother to her daughter.
       All of these clearly would have impacted [AR]. In the unsworn,
       [JR] makes this connection directly. To the extent, Defense
       Counsel, if you have evidence that rebuts this, you’re free to
       admit that evidence and I’ll give it its appropriate weight and it
       will impact how much weight I give to this. But on its face, and
       as described, this is appropriate victim impact. Evidence will
       be admitted and considered. Additionally, with regard to the
       testimony of [QH], I find it also to be appropriate victim impact
       testimony to the extent she cared for, had custody of [AR], and
       she no longer does. And according to [AR’s] mother, this is a di-
       rect result of the commission of this crime and how her mother
       felt about it.
   After QH finished testifying about losing custody of AR and after a recess,
the military judge clarified:
       . . . With regard to the victim impact testimony, for any review-
       ing court -- with regard to the testimony, the victim impact tes-
       timony regarding the custody issue, to the extent I consider the
       crime resulted in [AR’s] two motherly figures doubting them-
       selves and each other’s ability to parent [AR], this directly im-
       pacted [AR], that [QH] was unable to protect [AR] while on the
       cruise, according to the victim unsworn, was the reason [AR’s]
       biological mother sought custody [AR’s] mother wished –
       The direct emotional impact from the crime and the natural re-
       action of those involved are fair considerations as victim im-
       pact. Impacts on [AR] and how her parental figures view them-
       selves, their safety, the safety of [AR], and their views on each
       other’s ability to parent her are directly linked to this crime
       and are victim impacts.
       These impacts apply to [HB], [QH], and [AR] herself. With that
       said, there are independent actors involved in any ultimate de-
       cision regarding custody. The ultimate decision on [AR’s] cus-
       tody situation were not necessarily a direct result of the ac-
       cused’s crime.
       [AR’s] mother and the judge, who awarded custody, made inde-
       pendent decisions. The decision-making process to seek custo-
       dy, to question oneself, to question [QH], to feel guilt and frus-


                                      18
                   United States v. McInnis, No. ACM 39576


       tration from the crime are directly impacts of this crime. The
       ultimate custody decision made by some other court is not.
   After both trial and defense counsel’s sentencing arguments, the military
judge clarified his earlier ruling.
       Any argument or suggestion that I considered the ultimate de-
       cision regarding the custody of [AR] as a matter in aggravation
       or victim impact, I have given no weight to. I have considered
       the custody dispute itself, the emotions involved, the guilt, the
       stress, the impacts that led [AR’s] mother to seek custody as a
       victim impact, because it directly related to these crimes. I
       have not considered that [QH, AR’s guardian] lost custody of
       AR as a matter of victim impact. In other words, the accused’s
       crime did not take AR from [QH, her guardian]. I did not con-
       sider the evidence in [that] way.
     2. Law
    “Interpreting R.C.M. 1001A is a question of law, which we review de no-
vo.” United States v. Barker, 77 M.J. 377, 382 (C.A.A.F. 2018) (citation omit-
ted). However, we review a military judge’s decision to admit a victim impact
statement offered pursuant to R.C.M. 1001A for an abuse of discretion. Id. at
383 (citing Humpherys, 57 M.J. at 90). 14 A military judge abuses his discre-
tion when his decision to permit such a statement is based on an erroneous
view of the law. Id. (citing United States v. Lubich, 72 M.J. 170, 173 (C.A.A.F.
2013)).
    In the absence of an objection at trial, we review claims of erroneous ad-
mission of evidence for plain error, which is established when: (1) there is er-
ror; (2) which was plain, clear, or obvious, and (3) the error resulted in mate-
rial prejudice to Appellant’s substantial rights. United States v. Hardison, 64
M.J. 279, 281 (C.A.A.F. 2007) (citations omitted).



14 Appellate courts review a military judge’s decision to admit evidence for an abuse
of discretion. See, e.g., Humpherys, 57 M.J. at 90. In United States v. Hamilton, this
court held that victim impact statements offered pursuant to R.C.M. 1001A are not
“evidence” but nevertheless applied the abuse of discretion standard in reviewing the
military judge’s decision to allow such statements to come before the court. 77 M.J.
579, 585 (A.F. Ct. Crim. App. 2017) (en banc), rev. granted, 77 M.J. 368 (C.A.A.F.
2018). When the CAAF applied the abuse of discretion standard in Barker, it as-
sumed without deciding that such statements are evidence but noted it would decide
that question in its review of Hamilton. Barker, 77 M.J. at 383 n. 9.




                                         19
                  United States v. McInnis, No. ACM 39576


    Where trial defense counsel objects to the admissibility of evidence on one
ground at trial and a different ground on appeal, the new objection on appeal
is reviewed under the plain error analysis. United States v. Barnes, No, ACM
38720, 2016 CCA LEXIS 267, at *7 (A.F. Ct. Crim. App. 27 Apr. 2016) (un-
pub. op.).
   “A forfeiture is basically an oversight; a waiver is a deliberate decision not
to present a ground for relief that might be available in the law.” United
States v. Campos, 67 M.J. 330, 332 (C.A.A.F. 2009) (quoting United States v.
Cook, 406 F.3d 485, 487 (7th Cir. 2005)). The Court of Appeals for the Armed
Forces (CAAF) held “[w]hile we review forfeited issues for plain error, we
cannot review waived issues at all because a valid waiver leaves no error for
us to correct on appeal.” Id. (quoting United States v. Pappas, 409 F.3d 828,
830 (7th Cir. 2005) (quotation marks and citation omitted)); see also United
States v. Harcrow, 66 M.J. 154, 156 (C.A.A.F. 2008). In determining whether
a particular circumstance constitutes a waiver or a forfeiture, we consider
whether the failure to raise the objection at the trial level constituted an in-
tentional relinquishment of a known right. Campos, 67 M.J. at 332.
    “However, the CAAF has made clear that the courts of criminal appeals
have discretion, in the exercise of their authority under Article 66, UCMJ, 10
U.S.C. § 866, to determine whether to apply waiver or forfeiture in a particu-
lar case, or to pierce waiver or forfeiture in order to correct a legal error.”
United States v. Lee, No. ACM 39531, 2020 CCA LEXIS 61, at *17 (A.F. Ct.
Crim. App. 26 Feb. 2020) (unpub. op.) (citing United States v. Hardy, 77 M.J.
438, 442–43 (C.A.A.F. 2018) (quoting United States v. Quiroz, 55 M.J. 334
(C.A.A.F. 2001); United States v. Chin, 75 M.J. 220, 223 (C.A.A.F. 2016)).
    Article 6b, UCMJ, grants victims of offenses under the UCMJ the right to
be reasonably heard at sentencing hearings related to such offenses. 10
U.S.C. § 806b(a)(4)(B). A victim covered by this right is one “who has suffered
direct physical, emotional, or pecuniary harm as a result of the commission of
an offense under [the UCMJ].” 10 U.S.C. § 806b(b).
   Under R.C.M. 1001A, victims in non-capital cases may exercise their right
to be heard through sworn or unsworn statements. R.C.M. 1001A(b)(4)(B).
Unsworn statements may be oral, written, or both. R.C.M. 1001A(e). Victims
who are under 18 years of age may make an unsworn statement either per-
sonally or through a designee appointed under R.C.M. 801(a)(6). Id. R.C.M.




                                      20
                   United States v. McInnis, No. ACM 39576


801(a)(6) requires the military judge to appoint a designee in writing. 15
Statements offered under R.C.M. 1001A “may include victim impact or mat-
ters in mitigation,” and should neither exceed those topics nor recommend a
specific sentence. R.C.M. 1001A(c); 1001A(e), Discussion. Similar to the defi-
nition under R.C.M. 1001, victim impact under R.C.M. 1001A means “any fi-
nancial, social, psychological, or medical impact on the victim directly relat-
ing to or arising from the offense of which the accused has been found guilty.”
R.C.M. 1001A(b)(2).
    When evidence is improperly admitted during sentencing proceedings,
“the test for prejudice is whether the error substantially influenced the ad-
judged sentence.” Barker, 77 M.J. at 384 (internal quotation marks and cita-
tions omitted). When determining whether an error substantially influenced
a sentence, this court considers the following 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. Bowen, 76 M.J. 83, 89 (C.A.A.F. 2017) (quoting United States
v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999)). “An error is more likely to be prej-
udicial if the fact was not already obvious from the other evidence presented
at trial and would have provided new ammunition against an appellant.”
Barker, at 384 (citation omitted).
     3. Analysis
    Appellant alleges the military judge erred in three respects. First, the
military judge did not properly designate JR in writing as AR’s designated
representative pursuant to Article 6b, UCMJ,; R.C.M. 1001A(e) and R.C.M.
801a(6). Second, the military judge considered the substance of the entire
statement submitted by a non-appointed individual pursuant to Article 6b,
UCMJ; R.C.M. 1001A(e) and R.C.M. 801(a)(6). Finally, the military judge
considered the sentence in JR’s written statement regarding custody over de-
fense objection. Appellant’s third allegation of error—the one line regarding
JR seeking custody in Court Exhibit 1—is preserved by objection. Before we
can consider the first two allegations of error, we must determine whether
Appellant waived the issue and whether we will apply waiver or forfeiture.




15R.C.M. 801(a)(6) no longer requires the designation in writing from the military
judge. See Exec. Order 13,825, 83 Fed. Reg. 9889 (8 Mar. 2018); Manual for Courts-
Martial, United States (2019 ed.).




                                       21
                   United States v. McInnis, No. ACM 39576


       a. Waiver
   Appellant appears to have not only waived his right to object to the mili-
tary judge’s failure to appoint JR in writing, but also to the military judge’s
decision to consider the substance of the remainder of JR’s statement.
    As to lack of appointment, the record of trial contains no written designa-
tion of JR as AR’s representative. The only reference to JR having this role is
one comment by the senior trial counsel that identified JR as “the Article 6b
guardian” of AR. While there was extensive discussion of whether JR was a
victim herself, neither trial defense counsel nor the military judge took issue
with the senior trial counsel’s comment that JR was AR’s Article 6b repre-
sentative. Under these circumstances, we find trial defense counsel made a
deliberate decision not to present a ground for relief that might be available
in the law. We do not know whether trial defense counsel did not present that
ground for relief because he knew the military judge had properly appointed
JR or because he knew that by objecting the remedy would be for the military
judge to then appoint JR. Under either situation, trial defense counsel made
a deliberate decision not to present a ground for relief when trial counsel
identified JR as “the Article 6b guardian” of AR and trial defense counsel said
nothing in response to that statement except to object to the line concerning
custody.
    With the admission of the entirety of Court Exhibit 1, this is not simply a
case where an exhibit was admitted without any objection or comment from
defense counsel. Here, prior to admitting Court Exhibit 1, the military judge
asked if there were any objections and defense counsel expressly indicated
that he had none other than “the line about the biological mother taking cus-
tody back.” See United States v. Davis, 79 M.J. 329, 331 (C.A.A.F. 2020);
United States v. Ahern, 76 M.J. 194, 198 (C.A.A.F. 2017). However, the CAAF
has made clear that the Courts of Criminal Appeals have discretion, in the
exercise of their authority under Article 66, UCMJ, 10 U.S.C. § 866, to de-
termine whether to apply waiver or forfeiture in a particular case, or to pierce
waiver or forfeiture in order to correct a legal error. See, e.g., United States v.
Hardy, 77 M.J. at 442–43. Thus, even if Appellant waived both issues, this
court must determine whether an error exists that merits piercing his waiv-
ers. See Hardy, 77 M.J. at 443. On its face, Appellant’s assignment of error
suggests that the court-martial may have admitted and considered a victim
impact statement delivered by a person who was not properly appointed pur-
suant to Article 6b, UCMJ, R.C.M. 1001A(e), and 801(a)(6); the admission of
which prejudiced Appellant. Accordingly, we find it appropriate to address
the substance of Appellant’s claims. See Lee, unpub. op. at *17.




                                       22
                  United States v. McInnis, No. ACM 39576


       b. Lack of Designation in Writing
    As stated above, it is possible there was no comment by trial defense
counsel because the military judge had already appointed JR in writing prior
to trial. In that case, as we have seen with other record of trial omissions, ap-
pellate government counsel could have moved to attach the military judge’s
written designation in an attempt to show Appellant suffered no material
prejudice because the error did not affect the proper appointment of JR. Here,
the Government did not file a motion to attach a written appointment by the
military judge. Instead, the Government’s answer to this assignment of error
simply states, “Unfortunately here, there is no discussion on the record con-
cerning AR’s mother having been appointed her designee.” Under these cir-
cumstances, we will presume a written appointment never happened. Failure
by the military judge to appoint a designee in writing is a clear and obvious
error. As such, after examining Appellant’s remaining allegations of error by
the military judge, we will test for material prejudice below.
       c. Consideration of Substance of the Entire Statement
    Considering the substance of the entire statement submitted by a non-
appointed individual pursuant to Article 6b is a clear and obvious error. Trial
counsel’s statement that JR is the “Article 6b guardian of [AR]” does not elim-
inate this error as trial counsel had no authority to appoint JR. R.C.M.
801(a)(6) reserves this responsibility solely to the military judge. As such, af-
ter examining Appellant’s remaining allegation of error by the military judge,
we will test for material prejudice below.
       d. Line About Custody
    As noted above when the trial defense counsel objected to “the line about
the biological mother taking custody back,” the military judge overruled the
objection. Our review of Court Exhibit 1 reveals one sentence that specifically
uses the word “custody,” although two other sentences discuss having AR
back with JR. The line referencing custody states: “I wanted custody back be-
cause I felt like I wasn’t there to protect her.”
    Since this objection was properly preserved at trial we will consider
whether the military judge abused his discretion. The military judge made
two clarifying rulings on how he would consider the loss of custody by QH af-
ter he admitted Court Exhibit 1. In the first ruling, he twice referenced “vic-
tim impact testimony” and never referenced Court Exhibit 1, a written un-
sworn statement. We find his first clarification ruling only applied to the tes-
timony of QH and not the written unsworn statement of JR given on AR’s be-
half. A written unsworn statement and testimony are two different things.
The first is governed by R.C.M. 1001(b)(4), is evidence in aggravation, and is
limited by Mil. R. Evid. 403. The second is governed by R.C.M. 1001A, is in-


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                 United States v. McInnis, No. ACM 39576


dependent of whether a witness testified, and implements the victim’s right
to be reasonably heard.
    We also conclude the military judge’s second clarification ruling also did
not address his admission of Court Exhibit 1. The military judge stated, “In
other words, the accused’s crime did not take AR from [QH, her guardian]. I
did not consider the evidence in [that] way.” As we have held that a victim
unsworn statement is not “evidence” and this precedent was binding on the
military judge, we conclude that once again, the military judge was referring
to the testimony of QH and not the written unsworn statement of JR. United
States v. Hamilton, 77 M.J. 579, 585 (A.F. Ct. Crim. App. 2017) (en banc), rev.
granted, 77 M.J. 368 (C.A.A.F. 2018).
    We now must determine whether the line that JR wrote—“I wanted cus-
tody back because I felt like I wasn’t there to protect her”—was victim impact
of AR. We find this statement to not reference victim impact that AR suf-
fered, but instead shows what JR’s state of mind was upon learning of the
offense that Appellant committed. This statement did not include direct “fi-
nancial, social, psychological, or medical impact” that AR suffered and was
therefore improper for consideration under R.C.M. 1001A(b)(2) as victim im-
pact. As the senior trial counsel made clear, JR was not attempting to make
her own victim impact statement, she was only exercising AR’s right to be
reasonably heard under R.C.M. 1001A(e). Under these circumstances, we find
the military judge abused his discretion when he permitted JR to include a
line in the unsworn statement about JR’s rationale for seeking custody of AR.
We test for material prejudice below.
          e. Material Prejudice
    “The test for prejudice is whether the error substantially influenced the
adjudged sentence.” Barker, 77 M.J. at 384 (internal quotation marks and
citations omitted). When determining whether an error substantially influ-
enced a sentence, we examine the strength of the Government’s case, the
strength of the Defense’s case; and the materiality and quality of Court Ex-
hibit 1. Id.
    Here, the Government’s case was exceptionally strong. Appellant admit-
ted variations of his guilt to two different law enforcement agencies. Appel-
lant’s video recorded statement to AFOSI was admitted into evidence, as well
as the security videos from the ship. Trial counsel introduced testimony from
HB and QH during presentencing, the substance of which is detailed above.
AR testified during findings that when she saw Appellant in her room she
was “sad” and she “just wanted to punch him in the eye.”




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                  United States v. McInnis, No. ACM 39576


   In contrast, the Defense’s case was comparatively weak. Appellant’s
presentencing case consisted of an unsworn written and oral statement, two
character letters, and accolades that Appellant received.
    The materiality and quality of the one paragraph unsworn statement by
JR as Court Exhibit 1 was limited. JR states AR is sensitive to doors being
locked, always likes to sleep with her mother, is always around her mother,
and she did not like a white baby doll because it reminded her of “the man.”
Similar information was already before the military judge in the form of tes-
timony from QH who testified that AR slept beside her, followed her every
move, and did not want to be by herself. See United States v. Harrow, 65 M.J.
190, 200 (C.A.A.F 2007) (“When a fact was already obvious from . . . the tes-
timony at trial’ and the evidence in question ‘would not have produced any
new ammunition,’ an error is likely to be harmless.”) (alteration in original)
(citations omitted)). Although the testimony of QH was describing AR’s reac-
tions with QH vice her biological mother, JR, the reactions of AR to Appel-
lant’s crimes are the crux of the evidence.
    The maximum sentence available in this case was a dishonorable dis-
charge, confinement for 20 years and 6 months, forfeiture of all pay and al-
lowances, and reduction to E-1. The trial counsel argued for a dishonorable
discharge, confinement for five years, total forfeiture of all pay and allowanc-
es and reduction to E-1. Appellant was sentenced to a dishonorable discharge,
1 year and 10 months of confinement, forfeiture of all pay and allowances,
reduction to E-1, and a reprimand despite the admission of Court Exhibit 1
and comparative weakness of Appellant’s sentencing case.
    Moreover, it is highly relevant when analyzing the impact of the error on
the sentence that the case was tried before a military judge, who is presumed
to know the law. Barker, 77 M.J. at 384 (citing United States v. Bridges, 66
M.J. 246, 248 (C.A.A.F. 2008) (citations omitted)). We find the admission of
Court Exhibit 1 did not substantially influence Appellant’s sentence.

                              III. 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).




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             United States v. McInnis, No. ACM 39576


Accordingly, the findings and the sentence are AFFIRMED.


               FOR THE COURT



               CAROL K. JOYCE
               Clerk of the Court




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