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

                             No. ACM 38943
                        ________________________

                           UNITED STATES
                               Appellee
                                    v.
                           Evan G. SMITH
                Captain (O-3), U.S. Air Force, Appellant
                        ________________________

       Appeal from the United States Air Force Trial Judiciary
                         Decided 14 July 2017
                        ________________________

Military Judge: Mark W. Milam.
Approved sentence: Dismissal. Sentence adjudged 11 July 2015 by
GCM convened at Joint Base San Antonio-Lackland, Texas.
For Appellant: Major Jarett Merk, USAF; Major Thomas A. Smith,
USAF.
For Appellee: Major Mary Ellen Payne, USAF; Major Meredith L.
Steer, USAF; Captain Matthew L. Tusing, USAF; Gerald R. Bruce, Es-
quire.
Before MAYBERRY, HARDING, and C. BROWN, Appellate Military
Judges.
Judge HARDING delivered the opinion of the court, in which Senior
Judge MAYBERRY and Judge C. BROWN joined.
                        ________________________

   This is an unpublished opinion and, as such, does not serve as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

HARDING, Judge:
   Contrary to his pleas, a general court-martial consisting of a military
judge convicted Appellant of one specification of assault consummated by a
                       United States v. Smith, No. ACM 38943


battery upon a child under 16 years of age; one specification of perjury by giv-
ing false testimony; and one specification of child endangerment by culpable
negligence in violation of Articles 128, 131, and 134, Uniform Code of Mili-
tary Justice (UCMJ), 10 U.S.C. §§ 928, 931, 934. 1 The military judge sen-
tenced Appellant to a dismissal.
    On appeal, Appellant raises the following assignments of error: (1) the ev-
idence is factually and legally insufficient to sustain his perjury conviction;
(2) the evidence is factually insufficient to sustain his conviction for assault
consummated by a battery upon a child under 16 years of age; 2 and (3) the
military judge’s excepting out “on divers occasions” rendered his finding of
guilty for child endangerment under the Additional Charge and its Specifica-
tion ambiguous, thereby precluding this court’s review under Article 66,
UCMJ, 10 U.S.C. § 866.
    As to Appellant’s first assignment of error, we agree that the evidence is
factually insufficient and grant relief. As to Appellant’s third assignment of
error, we agree that under the circumstances of this case, the military judge’s
finding of guilty except the words “on divers occasions” rendered the verdict
fatally ambiguous and grant relief. Finding no further error, we affirm the
remaining conviction.

                                   I. BACKGROUND
    Appellant and SS married in December 2010. SS was previously married
to MC and had two daughters with him. After her divorce from MC, SS main-
tained primary custody of their daughters. Once married to Appellant, SS
and her two daughters lived with him. Appellant and SS subsequently had
two sons of their own, HS born on 17 June 2011 and BS born on 16 Septem-
ber 2012. KF, SS’s mother, lived with Appellant, SS, and their children at
various times between Appellant’s and SS’s marriage and 2 December 2013.
    Relevant to the child endangerment specification, KF testified to three oc-
casions where Appellant placed a newly-born BS onto a changing table. The
specification was based on these instances and alleged that Appellant “did, on
divers occasions, endanger the mental health, physical health, safety, and

1 The military judge acquitted Appellant of one specification of damaging non-
military property; one specification of rape by using force; one specification of forcible
sodomy; one specification of assault consummated by a battery; and one specification
of assault consummated by a battery upon a child under 16 years of age in violation
of Articles 109, 120, 125, and 128, UCMJ, 10 U.S.C. §§ 909, 920, 925, 928.
2   Raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).




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                   United States v. Smith, No. ACM 38943


welfare of BS by throwing and dropping him, and that such conduct consti-
tuted culpable negligence.” At trial, KF recalled these events occurring be-
tween the middle of September 2012, shortly after BS was born, and the end
of October 2012. 3 The first instance described by KF occurred when BS was
two weeks old. KF did not directly observe this incident but testified her
daughter SS had, in a very animated state, told her “I can’t believe that MFer
dropped my son.” KF asked her daughter what she meant. KF testified her
daughter repeated the statement of disbelief, but KF could not recall whether
she said “dropped” or “tossed” the baby but that it was one or the other. KF
then asked her daughter what happened. According to KF, SS then described
that Appellant had thrown their son onto the changing table specifically at-
tributing the word “throw,” “threw,” or “thrown” to SS’s descriptions of Appel-
lant actions six times during her testimony.
    Contrary to the testimony of her mother, SS testified that she had no
memory or recollection of Appellant “dropping” their newborn son. She fur-
ther denied that she ever told her mother that Appellant “dropped” him. SS
did, however, testify that she remembered a conversation about the general
topic of Appellant changing his diaper. SS went on to describe an occasion
where Appellant had wrapped his son in a blanket after bathing him and
then placed him on the changing table. SS further testified that after Appel-
lant had unraveled him from the blanket there was a “little blup” when their
newborn son was placed on the changing pad. The changing pad was de-
scribed by SS as being concave with four inches of padding thickness around
the sides or perimeter and sloping down to two inches of padding thickness at
the center. After additional questioning by trial counsel, SS testified that
“when [Appellant] pulled out the towel, [BS] just dropped a little on the
changing table.” SS agreed, “if she had to put a measurement on it,” that the
drop was a couple of inches but she “[did not] consider a little two-inch drop
an abuse.” SS stated that she “got after” Appellant about this because “he
wasn’t as secure as [she] wanted him to be” and further stated that being
post-partum she “would get after [Appellant] over anything at that time.” SS
furthered testified that she believed that BS was about three months old
when the “blup” happened. 4 On cross-examination, SS also used the term
“bomp” to describe how her son was placed on the changing table after Appel-
lant removed the blanket. Upon questioning from the military judge, SS clari-

3The child endangerment specification alleged that the events took place “between
on or about 16 September 2012 and on or about 30 November 2012.”
4 This would be approximately 16 December 2012 and thus technically 16 days out-
side the charged time-frame.




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                     United States v. Smith, No. ACM 38943


fied that Appellant’s removal of the blanket did not result in her baby being
placed down on the changing pad after spinning or twisting. “It [sic] more a
plop.”
    KF, in addition to relaying what she claimed her daughter told her hap-
pened when BS was two weeks old, described two occasions when she herself
witnessed Appellant place his son on the changing table in manner she disa-
greed with. When BS was three weeks old, KF looked into the nursery from
about twenty feet away in the kitchen and observed Appellant place his son
on the changing table with what “looked more like a toss than a drop.” She
further described the “toss” being accomplished by “more of a, a downward
force” and later agreed with the answer suggested in trial counsel’s question
that Appellant had “tossed [him] down” onto the changing table. She estimat-
ed that the distance covered over the “toss” was a foot in height. KF testified
that when BS was five weeks old, she observed Appellant and BS in the
nursery as she was walking out of the laundry room. KF testified that Appel-
lant used the same kind of “downward toss” to place BS on the changing table
as before.
    In early October 2013 Appellant spanked HS, who was two years old at
the time, and left a bruise on his thigh and buttocks. SS took photographs of
the bruising and sent them via her phone to KF. Additionally, on 25 October
2013 Texas Child Protective Services (CPS) initiated an investigation into an
allegation that Appellant has spanked HS for throwing food. CPS also had
been informed that as a result of the spanking, there were pictures that
showed bruising on his buttocks and leg. On 29 October 2013, JL, the CPS
investigator, interviewed Appellant about the allegation. Appellant confirmed
to JL that he had spanked HS for throwing food from his high chair. Appel-
lant further told JL that he had spanked HS with an open hand and saw
some redness. JL did not have the pictures of the bruises at the time he in-
terviewed Appellant and thus did not specifically ask Appellant if he had
caused the injuries depicted in the pictures.
    Meanwhile, by the fall of 2013, the results of an investigation of allega-
tions of sexual assault against Appellant had been provided to Appellant’s
squadron commander. The allegations related to Appellant’s interactions
with a female Airman when Appellant was assigned at Shaw Air Force Base,
South Carolina, in 2009. At that time, Appellant held the rank of Senior Air-
man. On 4 November 2013, charges and specifications 5 alleging rape by un-


5These charges and specifications were investigated at the December 2013 Article 32
hearing and subsequently dismissed. Substantially the same charges and specifica-
(Footnote continues on next page)


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                   United States v. Smith, No. ACM 38943


lawful force and forcible sodomy were preferred against Appellant. Appel-
lant’s commander personally informed Appellant by reading verbatim to him
the preferred charges and specifications that same day.
    The events that took place in October and early November 2013, the CPS
child abuse investigation into the spanking of HS and the preferral of sexual
assault charges against Appellant, were part of the impetus for, and focus of,
a child custody hearing regarding SS’s two daughters in early December.
Their father, MC, had been provided information from both SS’s brother and
mother, GF and KF, regarding the CPS investigation into the spanking and
bruising and MC used that information in support of an effort to change the
custody arrangement regarding his daughters. Furthermore, by the date of
the hearing, MC and his attorney were generally aware of the allegation of
sexual assault against Appellant and that a hearing was scheduled in the
middle of December related to that allegation. A pretrial investigative hear-
ing under Article 32, UCMJ, 10 U.S.C. § 832, was in fact scheduled for 13 De-
cember 2013.
   On 2 December 2013, the civil hearing was held at the 345th Civil District
Court of Travis County, Texas, to address a motion filed by MC wherein MC
sought to gain primary custody of his daughters. Appellant testified and was
asked the following question by MC’s attorney:
       Lieutenant, are you presently looking at a hearing here in the
       next several weeks to determine whether you should stand
       charged with a sexual assault?
    Appellant immediately answered: “No, sir,” before SS’s attorney could
make an objection based on relevance. In response to the objection, MC’s at-
torney offered that the evidence was relevant “as to whether or not that has
an impact on the stress there at the house.” The judge overruled the objection
and admitted the evidence. Appellant was then asked whether he had given a
deposition in “the case” to which Appellant replied “No, sir. There is no case
right now, sir.” MC’s attorney then asked: “Is the idea of an allegation of sex-
ual assault simply something that’s been made up out of entire whole cloth?
There is no basis?” Appellant replied as follows:
       That is why they chose not to prosecute at this time, yes, sir.
       There is no evidence or there is no—there is no statement.
       There is no evidence that anything of that has taken place for


tions were preferred anew on 19 June 2014 along with other charges and specifica-
tions that were subsequently referred to this court-martial.




                                       5
                   United States v. Smith, No. ACM 38943


       the individual who was discharged. This person was discharged
       from the military. I’m one of five members they had filed a
       complaint against. The prosecution did not pick up the case. It
       moves to an Article 32 for a dismissal.
The following colloquy then ensued between MC’s attorney and Appellant:
       MC’s Attorney: So in fact, there was an allegation. That was
       my question.
       Appellant: No. You did not say “allegation,” sir. You said I was
       charged; and then you used the term “case,” correct?
       MC’s Attorney: Has there been an allegation? Was there an al-
       legation of sexual assault?
       Appellant: There was an allegation.
       MC’s Attorney: Thank you very much.

                               II. DISCUSSION
A. Legal and Factual Sufficiency
    Appellant challenges the legal and factual sufficiency of the evidence sup-
porting the perjury conviction and the factual sufficiency of the evidence sup-
porting the conviction for assault consummated by a battery upon a child un-
der 16 years of age. We review both legal and factual sufficiency de novo.
United States v. Beatty, 64 M.J. 456, 459 (C.A.A.F. 2007). The test for legal
sufficiency of the evidence is “whether, considering the evidence in the light
most favorable to the prosecution, a reasonable factfinder could have found
all the essential elements beyond a reasonable doubt.” United States v.
Turner, 25 M.J. 324 (C.M.A. 1987); see also United States v. Humpherys, 57
M.J. 83, 94 (C.A.A.F. 2002). The term “reasonable doubt” does not mean that
the evidence must be free from conflict. United States v. Lips, 22 M.J. 679,
684 (A.F.C.M.R. 1986). “[I]n resolving questions of legal sufficiency, we are
bound to draw every reasonable inference from the evidence of record in favor
of the prosecution.” United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001).
    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 pre-
sumption of innocence nor a presumption of guilt” to “make [our] own inde-
pendent determination as to whether the evidence constitutes proof of each
required element beyond a reasonable doubt.” United States v. Washington,
57 M.J. 394, 399 (C.A.A.F. 2002). As with legal sufficiency, the term “reason-

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                       United States v. Smith, No. ACM 38943


able doubt” “does not mean that the evidence must be free of conflict.” United
States v. Galchick, 52 M.J. 815, 818 (A.F. Ct. Crim. App. 2000).
      1. Perjury
    To sustain the conviction for perjury as alleged in the specification, the
Government was required to prove: (1) that Appellant took an oath that he
would testify truly in a judicial proceeding by a court of competent jurisdic-
tion, to wit: the 345th Civil District Court of Travis County, Texas; (2) that
the oath was administered to Appellant in a matter in which an oath was re-
quired or authorized by law; (3) that the oath was administered by a person
having authority to do so; (4) that upon the oath, Appellant did, at or near
Austin, Texas, on or about 2 December 2013, willfully, corruptly, and contra-
ry to such oath, testify in substance that he was not facing a hearing to de-
termine whether he should stand charged with a sexual assault; (5) that the
testimony was upon a material matter; (6) that the testimony was false; and
(7) that Appellant did not then believe the testimony to be true. 6
     In the context of perjury and false swearing, the United States Court of
Appeals for the Armed Forces has held “that a statement which is technical-
ly, literally, or legally true cannot support a conviction, even if misleading or
confusing.” United States v. Evans, 37 M.J. 468, 471 (C.M.A. 1993). Likewise,
when dealing with ambiguous statements, “doubts as to the meaning of alleg-
edly false testimony should be resolved in favor of truthfulness.” Id. (internal
quotation marks and citations omitted). “[L]iterally true but unresponsive
answers are to be remedied through more precise questioning.” United States
v. Arondel de Hayes, 22 M.J. 54, 55–56 (C.A.A.F. 1986) (citing Smith v. Unit-
ed States, 169 F.2d 118 (6th Cir.1948); United States v. Abrams, 568 F.2d 411
(5th Cir. 1978); United States v. Haimowitz, 725 F.2d 1561 (8th Cir. 1984);
United States v. Purgess, 33 C.M.R. 97 (C.M.A. 1963)).
    The question and follow-up questions asked of Appellant were hardly a
model of precision. As a result, one is left to ponder the meaning of Appel-
lant’s answer of “no.” Appellant was not simply asked whether he had an up-
coming hearing concerning a sexual assault allegation. If he had been asked
such a simple question and flatly denied there was a hearing, we would not
detain ourselves long in resolving this alleged error in the Government’s fa-
vor. The question posed to Appellant, however, was not so simple. Appellant
was not only asked “whether he was looking at a hearing . . . in the next sev-
eral weeks,” he was also asked within the same question if the hearing’s pur-
pose was “to determine whether he should stand charged with a sexual as-

6   See Manual for Courts-Martial, United States (MCM), pt. IV, ¶ 57(b)(1) (2012).




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                    United States v. Smith, No. ACM 38943


sault.” MC’s attorney asked a compound question—answering “yes” would
have been agreeing not only that there was an upcoming hearing, but that
the Article 32 hearing’s purpose is “to determine” the disposition of an allega-
tion or report of an offense under the UCMJ. Were such a proposition pre-
sented to a gathering of military justice practitioners, we would expect a sub-
stantial number to disagree outright or inquire as to what meaning to attach
to the word “determine” and the words “stand charged.”
    The attorney’s use of the word “determine” only injected more potential
for confusion regardless of whether Appellant answered yes or no. The word
“determine” used in the context of the question asked could have reasonably
been understood to mean to decide. As Appellant points out, rather than “de-
termine” or decide disposition, the stated purposes of an Article 32, UCMJ,
pretrial investigation at that time was to conduct an “inquiry as to the truth
of the matter set forth in the charges, consideration of the form of the charg-
es, and recommendation as to the disposition which should be made in the
interest of justice and discipline.” 7 A disposition decision and recommenda-
tion are distinctly different. A statement that an Article 32 hearing’s purpose
is “to determine” the disposition of a sexual assault offense is at best ambigu-
ous.
    Finally, the determination to be made according to the question was
whether Appellant would “stand charged” with a sexual assault. MC’s attor-
ney did not clarify if by the words “stand charged” he meant to be charged in
the first place—an initial disposition resulting in a preferral of charges—or
whether Appellant would continue to “stand charged” by means of a referral
of previously preferred charges to a court-martial. Of course, if the reference
was to an initial disposition decision, the hearing would in no way factor into
that determination or decision.
    Given the question asked by MC’s attorney, the substance of Appellant’s
response of “no” was “I am not presently looking at a hearing here in the next
several weeks to determine whether I should stand charged with a sexual as-
sault.” If that statement is “technically, literally, or legally true,” then it can-
not support Appellant’s conviction, “even if misleading or confusing.” If the
term “determine” were limited to meaning “decide” and the words “stand
charged” to an initial decision to prefer charges, then unquestionably Appel-
lant’s statement would technically be true and thus could not support a per-
jury charge. We find Appellant’s response to be an ambiguous answer to an


7 Effective 26 December 2014, Article 32, UCMJ, changed from a pretrial investiga-
tion to a preliminary hearing.




                                         8
                       United States v. Smith, No. ACM 38943


imprecisely worded and poorly constructed question. 8 After weighing the evi-
dence in the record of trial and making allowances for not having personally
observed the witnesses, we are not convinced of Appellant’s guilt beyond a
reasonable doubt and thus find the evidence factually insufficient. According-
ly, we set aside and dismiss the perjury charge and specification.
      2. Assault Consummated by a Battery upon a Child under Sixteen
      Years of Age
    To sustain the conviction for assault consummated by a battery upon a
child under 16 years of age as alleged in the specification, the Government
was required to prove: (1) that Appellant did bodily harm to [HS]; (2) that
Appellant did so by striking HS on the buttocks and thigh with his hand; (3)
that the bodily harm was done with unlawful force or violence; and (4) that
[HS] was then a child under the age of sixteen years. 9 At the child custody
hearing, Appellant was asked whether he had “any serious doubt” that the
marks on HS’s buttocks were the result of a spanking that he gave. Appellant
replied, “No, no serious doubt.” The photographs taken by SS demonstrate
the nature and extent of the bodily harm to HS’s buttock and thigh and Ap-
pellant admitted to the CPS investigator that he spanked HS with an open
hand after HS had thrown his food. Having reviewed the entire record of trial
and making allowances for not personally observing the witnesses, we are
convinced of Appellant’s guilt beyond a reasonable doubt.
B. Ambiguous Findings
    Appellant avers that the military judge’s finding with respect to the speci-
fication of child endangerment was fatally ambiguous. As indicated above, we
agree.
   When the phrase “on divers occasions” is removed from a specification,
the effect is “that the accused has been found guilty of misconduct on a single
occasion and not guilty of the remaining occasions.” United States v. Aug-
spurger, 61 M.J. 189, 190 (C.A.A.F. 2005). “If there is no indication on the
record which of the alleged incidents forms the basis of the conviction, then
the findings of guilt are ambiguous and the Court of Criminal Appeals cannot
perform a factual sufficiency review.” United States v. Wilson, 67 M.J. 423,
428 (C.A.A.F. 2009) (citing United States v. Walters, 58 M.J. 391, 396–97


8We note that MC’s attorney likely achieved his objective of ultimately eliciting from
Appellant that he had been alleged to have committed a sexual assault and did not
have as a concern a potential perjury prosecution against Appellant.
9   See MCM, 2012, pt. IV, ¶ 54.b(3)(c).




                                           9
                     United States v. Smith, No. ACM 38943


(C.A.A.F. 2003)). “Where the findings do not disclose the single occasion on
which the conviction is based, the Court of Criminal Appeals cannot conduct
a factual sufficiency review or affirm the findings because it cannot deter-
mine which occasion . . . the servicemember was acquitted of.” Augspurger, 61
M.J. at 190. “Double jeopardy principles prohibit a reviewing court from re-
hearing any incidents for which the accused was found not guilty.” Wilson, 67
M.J. at 428. “Courts of Criminal Appeals may not perform an independent
review of the record to determine which of the possible incidents most likely
formed the basis for the conviction.” Id. However, a Court of Criminal Ap-
peals may review the record to determine if there was only a single possible
incident that met “all the details of the specification” for which an appellant
was convicted. Id. at 429.
   The military judge found Appellant guilty of the specification except the
words “on divers occasions,” “the mental health,” and “throwing.” Thus the
specification that Appellant was found guilty of by the military judge was
modified to the following by the exceptions:
       [B]etween on or about 16 September 2012 and on or about 30
       November 2012, had a duty for the care of [BS], a child under
       the age of 16 years, and did, endanger physical health, safety,
       and welfare of said [BS] by dropping him, and that such con-
       duct constituted culpable negligence, such conduct being to the
       prejudice of good order and discipline in the armed forces and
       of a nature to bring discredit upon the armed forces.
    Notably, the military judge did not find Appellant guilty of any substitut-
ed or additional words. Nor did he make a clarification on the record as to
which alleged incident formed the basis of the conviction as is permitted by
Rule for Courts-Martial (R.C.M.) 922(d). 10 The Government asserts that the
finding of guilt as to the child endangerment charge was not ambiguous be-
cause the instance described by SS as a “blup,” “bomp,” and “plop” is the only
single incident that meets all the details for the specification for which Appel-
lant was convicted. This assertion is rather remarkable given the Govern-
ment’s characterization dismissing this evidence in its closing argument:
       The Additional Charge is child endangerment, sir. We have
       that happening from when the boy is born essentially up until


10In the context of a judge-alone trial, clarification of ambiguous findings can be ac-
complished by a clear statement on the record by the military judge as to which al-
leged incident formed the basis of the conviction. United States v. Trew, 68 M.J. 364
(C.A.A.F. 2010).




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                   United States v. Smith, No. ACM 38943


       the end of November. That gives you the whole range. And the
       two months where SS either lied about or talked about some-
       thing that doesn’t really matter much; the dropping of the boy.
       And then you have the actual charged offenses that fall under
       there; three occasions. One where [SS] comes out in an excited
       utterance, in spite of her ability almost preternatural to get up
       here and lie and scheme and misdirect, and tells her mom what
       she saw happen in a fit, in a flurry of excitement, a fear of con-
       cern for the safety of her two-week-old son, who flails as he is
       thrown down by the accused. That is the first. We have the sec-
       ond. We have the third as well that [KF] observed herself.
    On appeal, the Government has retreated from the incident based upon
the excited utterance and now in an effort to salvage the finding of guilty,
embraces the “blup” as the only single possible incident that met “all the de-
tails of the specification” for which Appellant was convicted. The Government
argues that this is the case because this was the only instance where there
was no evidence of “throwing” or endangerment to “mental health” and this
matched the excepted language Appellant was found not guilty of. We disa-
gree.
    We note that by the time both sides had rested their respective cases, the
evidence supported four distinct instances wherein Appellant might be found
to have endangered his child’s physical health, safety, and welfare by culpa-
ble negligence. Those instances are as follows:
   (1) KF testified that when BS was two weeks old, SS made an excited ut-
   terance to her “I can’t believe that MFer dropped my son” and also used
   the word “throw”;
   (2) KF testified that when BS was three weeks old, she observed a
   “downward toss” while standing in the kitchen;
   (3) KF testified that when BS was five weeks old, she observed a “down-
   ward toss” while walking from the laundry room toward the nursery; and
   (4) SS testified that when BS was three months old, she observed the
   “blup” which she estimated to be a “drop” of a couple of inches.
   The military judge found the manner in which Appellant endangered his
son was by “dropping him.” For two of the four instances the word “drop” was
actually used in the testimony to describe what Appellant did. We also note
that the word “drop” is not a term with a precise legal definition and can gen-
erally be used to describe letting or making something fall vertically. KF’s
description of a “downward toss” is not incompatible with a finding of “drop-
ping.” Having reviewed the record, we find evidence for all four incidents that
meet “all the details of the specification” for which Appellant was convicted.

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                    United States v. Smith, No. ACM 38943


We are therefore unable to conclude that there is only one single possible oc-
casion that meets all the details of the specification for which Appellant was
convicted. As a result, the findings for the child endangerment charge and
specification are fatally ambiguous and we are unable to perform a factual
sufficiency review under Article 66, UCMJ.
   The Government argues in the alternative that if this court were to hold
that the findings were ambiguous, instead of dismissing the charge, we
should remedy the ambiguity by remanding for special findings. However:
       Because double jeopardy principles would bar any rehearing on
       incidents of which Appellant was found not guilty, and because
       ambiguous findings preclude distinguishing incidents that re-
       sulted in acquittal from the single incident that resulted in a
       conviction, the remedy for a Walters violation is to set aside the
       finding of guilty to the affected specification and dismiss it with
       prejudice.
United States v. Scheurer, 62 M.J. 100, 112 (C.A.A.F. 2005). Accordingly, we
set aside and dismiss the child endangerment charge and specification.
C. Sentence Reassessment
    Having set aside and dismissed the charges and specifications for perjury
and child endangerment, we now must decide whether we can accurately re-
assess Appellant’s sentence based solely upon the findings on the affirmed
conviction for assault consummated by a battery upon a child under 16 years
of age or instead if we must return this case for a rehearing.
    This court has “broad discretion” when reassessing sentences. United
States v. Winckelmann, 73 M.J. 11, 12 (C.A.A.F. 2013). Our superior court
has repeatedly held that if we “can determine to [our] satisfaction that, ab-
sent any error, the sentence adjudged would have been of at least a certain
severity, then a sentence of that severity or less will be free of the prejudicial
effects of error.” United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986). In
determining whether to reassess a sentence or order a rehearing, we consider
the totality of the circumstances with the following as illustrative factors:
(1) dramatic changes in the penalty landscape and exposure; (2) the forum;
(3) whether the remaining offenses capture the gravamen of the criminal
conduct; (4) whether significant or aggravating circumstances remain admis-
sible and relevant; and (5) whether the remaining offenses are the type with
which we as appellate judges have the experience and familiarity to reliably
determine what sentence would have been imposed at trial. Winckelmann, 73
M.J. at 15–16.
   Examining the entire case and applying the considerations set out in
Winckelmann, we are unable to determine to our satisfaction that Appellant’s

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                   United States v. Smith, No. ACM 38943


sentence would have been at least as severe as a dismissal or some lesser
form of punishment without the error. The penalty landscape has dramatical-
ly changed as the maximum imposable sentence to confinement has been re-
duced from 8 years to 2 years. Further, the remaining offense does not cap-
ture the gravamen of the criminal conduct. Clearly, the military judge con-
sidered the child endangerment conviction in crafting the sentence of a dis-
missal along with the other “child abuse” conviction as well as the perjury. It
is notable that with the child endangerment conviction as a matter to consid-
er in sentencing, there was arguably an emerging pattern of child abuse. Tri-
al counsel argued about the “grave danger that [BS] was put in when he was
dropped by his own father at a few weeks old” and that HS, “for throwing
food at two years old received a beating worse than probably some of us have
obtained in our lives.” He also made repeated references to how Appellant
had failed to protect them. Without the child endangerment conviction, the
assault and battery for spanking HS could be characterized as a one-time
event where a parent lost their temper and went beyond what the law per-
mits in terms of corporal punishment. Standing alone, it does not capture an
emergent pattern of abuse, a significant part of the gravamen of the criminal
conduct regarding Appellant’s treatment of his children.
    As for the perjury specification, in his sentencing argument trial counsel
made a direct link between Appellant’s failure to “respect” the oath he made
at the child custody hearing and its bearing on whether he would respect the
oath he made as an officer in the Air Force. Trial counsel stated that when he
thought of Appellant and his crimes “[he saw] dishonor, shame, disgrace, and
untrustworthiness,” and that “his crimes earned him that dismissal.” As the
military judge sentenced Appellant to a dismissal and no other form of pun-
ishment, once child endangerment and perjury are no longer before the sen-
tencing authority, we hesitate to conclude Appellant’s sentence would have
been at least as severe as a dismissal or some lesser form of punishment
without the error.
D. Timely Appellate Review
    Although not initially raised by Appellant, we review de novo “[w]hether
an appellant has been denied [his] due process right to a speedy post-trial re-
view . . . and whether [any] constitutional error is harmless beyond a reason-
able doubt.” United States v. Allison, 63 M.J. 365, 370 (C.A.A.F. 2006). A pre-
sumption of unreasonable delay arises when appellate review is not complet-
ed and a decision is not rendered within 18 months of the case being docketed
before this court. United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006).
The Moreno standards continue to apply as a case remains in the appellate
process. United States v. Mackie, 72 M.J. 135, 135–36 (C.A.A.F. 2013). When
a case is not completed within 18 months, such a delay is presumptively un-


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                   United States v. Smith, No. ACM 38943


reasonable and triggers an analysis of the four factors elucidated in Barker v.
Wingo, 407 U.S. 514 (1972), and Moreno. See United States v. Arriaga, 70
M.J. 51, 55 (C.A.A.F. 2011). Those factors are “(1) the length of the delay; (2)
the reasons for the delay; (3) whether the appellant made a demand for a
speedy trial; and (4) prejudice to the appellant.” United States v. Mizgala, 61
M.J. 122, 129 (C.A.A.F. 2005); see also Barker, 407 U.S. at 530.
    This case was originally docketed with the court on 30 December 2015. As
such, the delay in releasing our decision is facially unreasonable. However, in
analyzing the Barker factors for the delay leading up to this decision, we find
no due process violation resulted from the appellate delay. Regarding the
reasons for the delay, we note Appellant’s brief was not filed until 22 May
2017, nearly 17 months after the case was docketed with this court. The Gov-
ernment’s answer was filed on 21 June 2017. Appellant’s counsel requested a
total of eight enlargements of time, all of which were granted. In each in-
stance, Appellant counsel noted that Appellant was not in confinement, there
were 14 motions at trial, and that the transcript is 2238 pages with 37 prose-
cution exhibits, 16 defense exhibits, and 88 appellate exhibits. Appellant did
not make a demand for speedy appellate review.
   Notably, on 10 January 2017, this court ordered the Government to sub-
mit a sealed Appellate Exhibit for attachment to the record after a determi-
nation it was missing from the court’s copy. On 31 January 2017, the Gov-
ernment notified the court that the missing exhibit was not part of the record
maintained by either party. On motion of the Government, we remanded the
case to the convening authority for correction setting 11 April 2017 as the
deadline for the correction. On 11 April 2017, the Government informed the
court that the missing exhibit had been prepared but that Appellant’s trial
defense counsel had requested more time to review the correction. The Gov-
ernment requested the deadline be extended. The new deadline, 28 April
2017, was met and the record returned to this court.
    We find no prejudice to Appellant resulting from the delay in the issuance
of this opinion. When there is no showing of prejudice under the fourth factor,
“we will find a due process violation only when, in balancing the other three
factors, the delay is so egregious that tolerating it would adversely affect the
public’s perception of the fairness and integrity of the military justice sys-
tem.” United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006). That is not
the case here.
    We have also considered whether Appellant is due Tardif relief because of
the violation of the Moreno standards in this case. 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. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d 75

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                   United States v. Smith, No. ACM 38943


M.J. 264 (C.A.A.F. 2016). Those factors include how long the delay exceeded
appellate review standards, the reasons noted by the Government for the de-
lay, whether the Government acted with bad faith or gross indifference, evi-
dence of institutional neglect, harm to Appellant or the institution, the goals
of justice and good order and discipline, and, finally, whether the court can
provide any meaningful relief given the passage of time. Id. No single factor
is dispositive and we may consider other factors as appropriate. Id.
    On the whole, we find the delay, although presumptively unreasonable, to
be justified upon application of the Gay factors. The length of the delay only
exceeded the Moreno standard by 14 days. The 16-volume record of trial was
substantial, exceeding 2200 pages of transcript as noted above. We also find
no evidence of bad faith or gross negligence on the part of the Government for
the delay. For these reasons, we conclude no Tardif relief is warranted.

                              III. CONCLUSION
    The findings of guilt to Charge V and its Specification and to the Addi-
tional Charge and its Specification are SET ASIDE and DISMISSED WITH
PREJUDICE. The remaining finding is correct in law and fact, and is AF-
FIRMED. The sentence is SET ASIDE. A rehearing on sentence is author-
ized. Article 66(c), UCMJ 10 U.S.C. § 866.


                 FOR THE COURT



                 KURT J. BRUBAKER
                 Clerk of the Court




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