             UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                              UNITED STATES

                                                        v.

                             Staff Sergeant BENJAMIN A. FELDKAMP
                                       United States Air Force

                                                  ACM 38493

                                                  1 May 2015

            Sentence adjudged 29 June 2013 by GCM convened at Whiteman Air Force
            Base, Missouri. Military Judge: J. Wesley Moore.

            Approved Sentence: Dishonorable discharge, confinement for 4 years,
            forfeiture of all pay and allowances, and reduction to E-1.

            Appellate Counsel for the Appellant: Captain Lauren A. Shure.

            Appellate Counsel for the United States: Major Daniel J. Breen; Captain
            Thomas J. Alford; and Gerald R. Bruce, Esquire.

                                                     Before

                               MITCHELL, WEBER, and CONTOVEROS
                                     Appellate Military Judges

                                        OPINION OF THE COURT

             This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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



WEBER, Judge:

       A general court-martial comprised of officer and enlisted members convicted the
appellant, contrary to his pleas, of one specification each of sexual assault, abusive sexual
contact, and indecent conduct, in violation of Articles 120 and 134, UCMJ,
10 U.S.C. §§ 920, 934.1 The adjudged and approved sentence consisted of a
1
  The charged act for the sexual assault specification occurred after 28 June 2012, meaning the appellant was
charged with violating the current version of Article 120, UCMJ, 10 U.S.C. § 920. The charged act for the abusive
sexual contact specification took place in March 2012, meaning the appellant was charged with violating the version
of Article 120, UCMJ, in effect from October 2007 to June 2012. The indecent conduct specification was not a
dishonorable discharge, confinement for 4 years, forfeiture of all pay and allowances, and
reduction to the grade of E-1.

       The appellant raises seven assignments of error before this court: (1) Article
120(b)(2), UCMJ, violated his right to equal protection under the law, (2) the military
judge erred by not issuing a mistake of fact instruction for the sexual assault
specification, (3) the sexual assault specification should be dismissed as constitutionally
void for vagueness and overbroad as applied, (4) the military judge erred by not issuing a
voluntary intoxication instruction for the sexual assault, (5) the military judge erred by
ruling that the indecent conduct charge was not preempted by another UCMJ provision,
(6) the military judge erred when he found the indecent conduct charge and the sexual
assault specification were not multiplicious with the sexual assault specification, and
(7) the military judge erred by denying the defense motion in limine concerning
testimony by the government’s DNA expert. We find no error materially prejudicial to a
substantial right of the appellant and affirm.

                                                 Background

       The appellant and Staff Sergeant (SSgt) JT worked in the same duty section at
Whiteman Air Force Base (AFB) and experienced an “on again, off again” dating
relationship for some time leading up to early 2012. By March 2012, the two were in an
“off” period of their dating relationship but lived in the same house along with a third Air
Force member. One day that month, the appellant and SSgt JT attended a bull riding
competition in Kansas City, Missouri, along with a third Airman. The group rented a
hotel room in Kansas City knowing they would be consuming alcohol. After the
competition and stops for food and alcohol, the appellant and SSgt JT returned to the
hotel room while the third Airman remained behind. The two ate their food and fell
asleep together in the hotel room’s sole bed. At some point before the appellant and
SSgt JT fell asleep, the third Airman entered the room and promptly fell asleep without
observing anything of note.

       In the morning, SSgt JT woke to find her nightgown pulled up and the appellant’s
mouth on her breast. SSgt JT saw the appellant smile as he looked at her face; she pulled
the covers over herself and turned away. When she thought the appellant had fallen
asleep, she dressed and left the room. She returned a short time later and the group
gathered their belongings and checked out of the hotel. As the group drove back to
Whiteman AFB, SSgt JT confronted the appellant about his actions and told him never to
do that to her again. She again confronted him after they returned home, telling him,
“You can either tell me or you can tell [the Air Force Office of Special Investigations]
what it is that you did to me.” The appellant responded, “Whoa, whoa, whoa when you

specifically-listed offense under Article 134, UCMJ, 10 U.S.C. § 934, for this case. Indecent assault and indecent
acts with another were formerly specifically-listed offenses under the UCMJ’s General Article. However, these
offenses were removed from Article 134, UCMJ, before the charged acts in this case.


                                                        2                                          ACM 38493
woke up that’s all – that’s all I did.” A short time later, SSgt JT made a restricted report
of sexual assault and moved out of the house. However, within weeks she decided that
she wanted to maintain a friendship with the appellant and the appellant’s group of
friends, so she continued to socialize with him. This socialization progressed to intimate
conduct on at least one occasion after the March Kansas City incident but before July
2012. However, the two did not resume a dating relationship and remained in an “off”
period. SSgt JT also had discussions about marrying another Airman who was stationed
overseas.

        On 19 July 2012, the appellant, SSgt JT, and one of the appellant’s housemates
made plans to meet at a local bar. After they consumed alcohol there, a friend picked up
the group, brought the appellant’s housemate home, and dropped off the appellant and
SSgt JT at another bar. After consuming more alcohol there, the two walked to the
appellant’s home. The appellant, SSgt JT, and the appellant’s other housemate sat on the
couch for a short time until the housemate went to bed and the appellant and SSgt JT fell
asleep.

       SSgt JT then felt a sensation “like a penis going . . . in my vagina.” She testified
that she felt like she was experiencing a dream, and at some point she woke when she felt
a tugging on her shorts. She perceived wetness between her legs and on her buttocks.
She then “shot up” off the couch, pulled her underwear and shorts up, and asked the
appellant what he did. The appellant replied, “I didn’t do anything.” SSgt JT went to the
bathroom, smelled a strong scent of semen between her legs, and wiped herself off.
When she emerged from the bathroom, the appellant again denied that he did anything
and tried to stop SSgt JT from leaving. She responded by punching him in the face
several times. SSgt JT left the house, called a co-worker to pick her up, and reported to a
local hospital where a sexual assault examination was conducted. Subsequent forensic
examination revealed spermatozoa on SSgt JT’s buttocks and in her cervical pool. The
spermatozoa contained DNA consistent with a sample taken from the appellant.

       Local law enforcement and the Air Force Office of Special Investigations jointly
interviewed the appellant after providing him with rights advisements. The appellant
stated that he did not remember everything from that night due to his alcohol
consumption, but that he remembered masturbating beside SSgt JT after he possibly “dry
humped” her in order to wake her. The appellant admitted that SSgt JT was asleep when
he engaged in this activity. He also stated that he remembered SSgt JT “waking up and
freaking out.” He admitted taking off his own shorts and at one point indicated SSgt JT’s
shorts were pulled down as well, though he denied pulling her shorts or underwear down.
He also denied penetrating SSgt JT. The appellant also generally discussed his version of
what occurred in the Kansas City hotel room in March 2012. Although questioning
focused more on the July 2012 incident, the appellant did admit to engaging in intimate
contact short of intercourse with SSgt JT the evening of the Kansas City incident.



                                             3                                  ACM 38493
       Investigators also recovered text messages the appellant sent to SSgt JT after the
July 2012 incident. In one message sent shortly after the incident, the appellant admitted
to masturbating beside SSgt JT. He also stated he was a “drunk idiot” and that he
deserved to be punched in the face more.

       Further facts relevant to each assignment of error are discussed below.

                                 Issue I: Equal Protection

       The appellant first alleges that his conviction for violating Article 120(b)(2),
UCMJ, (sexual assault) violates his right to equal protection under the law. He asserts
that the appellant was as intoxicated as SSgt JT, if not more so, and the “only significant
difference between the two is gender.” He further reasons that there is “no apparent
rational reason for the law to treat these two individuals differently,” because if engaging
in any sexual act with SSgt JT was a crime because of her intoxication, then it was also a
crime for SSgt JT to engage in sexual acts with the appellant, who was also intoxicated.
We reject this assignment of error.

      We review issues of equal protection de novo.               United States v. Wright,
53 M.J. 476, 478 (C.A.A.F. 2000).

        Constitutional guarantees of equal protection are “generally designed to ensure
that the Government treats ‘similar persons in a similar manner.’” United States v. Gray,
51 M.J. 1, 22 (C.A.A.F. 1999) (quoting R. ROTUNDA AND J. NOWAK, TREATISE ON
CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE, 2d § 18.38 at 488; § 18:41 at 496
(1992)). Not every distinction among groups of people violates constitutional principles
of equal protection, however. Instead:

              For the Government to make distinctions does not violate
              equal protection guarantees unless suspect classifications like
              race, religion, or national origin are utilized or unless there is
              an encroachment on fundamental constitutional rights like
              freedom of speech or peaceful assembly.                The only
              requirement is that reasonable grounds exist for the
              classification used.

United States v. Means, 10 M.J. 162, 165 (C.M.A. 1981) (citations omitted). When
evaluating an equal protection issue, “if a law neither burdens a fundamental right nor
targets a suspect class, we will uphold the legislative classification so long as it bears a
rational relation to some legitimate end.” Romer v. Evans, 517 U.S. 620, 631 (1996).

       An equal protection claim necessarily requires an appellant to demonstrate he is
being treated differently than someone else who is similarly situated. This appellant has


                                              4                                    ACM 38493
not done so. The appellant seems to argue from the presumption that his case involves a
mutual case of “drunken sex” in which both partners are equally intoxicated and
participate equally in the sexual act. While his equal protection argument might raise an
interesting issue in such a situation, the facts of his case are far different. The
specification at issue alleged that the appellant penetrated SSgt JT while he knew or
reasonably should have known that she was “asleep, unconscious, or otherwise unaware
that the conduct was occurring.” Through exceptions, the members found that the
appellant knew or should have known that SSgt JT was asleep (not unconscious or
unaware). Thus, the relative intoxication of the two parties was not at issue. Instead, the
appellant committed a sexual act upon a sleeping victim who had no part in engaging in
the charged sexual conduct. While SSgt JT was sleeping, the appellant remained awake
as he penetrated SSgt JT without her consent and eventually ejaculated inside and upon
her. Under these circumstances, it can hardly be said that the “only significant difference
between the two is gender.” The appellant has not shown how the sexual assault statute,
applied to the facts of this case, treated him any differently than other service members in
similar circumstances.

   Issues II and IV: Mistake of Fact as to Consent/Voluntary Intoxication Instructions

       The appellant alleges the military judge erroneously failed to issue two
instructions concerning defenses to the sexual assault specification: mistake of fact as to
consent and voluntary intoxication. Regarding mistake of fact as to consent, the
appellant asserts that evidence raised at trial indicated he might have believed that SSgt
JT consented to the charged acts in July 2012. Regarding voluntary intoxication, he
asserts that evidence of his alcohol consumption on the night of the July 2012 incident
required an instruction that his voluntary intoxication could potentially negate his guilt.
We disagree on both points.

       Military judges have substantial discretionary power to decide which instructions
to provide, but ultimately the question of whether a panel is properly instructed is a
question of law reviewed de novo. United States v. Ober, 66 M.J. 393, 405
(C.A.A.F. 2008); United States v. Dearing, 63 M.J. 478, 482 (C.A.A.F. 2006); United
States v. Gurney, 73 M.J. 587, 598 (A.F. Ct. Crim. App. 2014). A military judge must
instruct panel members on any affirmative defense that is “in issue.” Rule for Courts-
Martial (R.C.M.) 920(e)(3); United States v. Stanley, 71 M.J. 60, 61 (C.A.A.F. 2012). A
matter is considered “in issue” when “some evidence, without regard to its source or
credibility, has been admitted upon which members might rely if they chose.” Id. at 61
(quoting United States v. Lewis, 65 M.J. 85, 87 (C.A.A.F. 2007)) (internal quotation
marks omitted). “Any doubt whether an instruction should be given ‘should be resolved
in favor of the accused.’” United States v. Brown, 43 M.J. 187, 189 (C.A.A.F. 1995)
(quoting United States v. Steinruck, 11 M.J. 322, 324 (C.M.A. 1981)).




                                             5                                  ACM 38493
       We first address mistake of fact as to consent. R.C.M. 916(j)(1) provides that “it
is a defense to an offense that the accused held, as a result of ignorance or mistake, an
incorrect belief of the true circumstances such that, if the circumstances were as the
accused believed them, the accused would not be guilty of the offense.”

       As findings instructions were being discussed, the military judge asked trial
defense counsel if they believed mistake of fact as to consent had been raised by the
evidence as a defense to any of the specifications. Trial defense counsel asserted that
they believed the defense had been raised with respect to all specifications. Trial counsel
opposed this, asserting that the evidence did not indicate any mistake of fact as to consent
on the part of the appellant, let alone a reasonably held mistake.

       The military judge ruled he would issue the mistake of fact as to consent
instruction regarding the March 2012 charged abusive sexual contact, as some evidence
existed that the appellant and SSgt JT had previously fallen asleep together and engaged
in a practice of waking each other up in order to engage in sex. However, as to the July
2012 charged sexual assault and indecent conduct, the military judge declined to issue the
instruction, ruling:

              The Court does not believe that there . . . has been some
              evidence presented that would warrant the mistake of fact as
              to consent defense for the specifications involving 19 July
              2012. The circumstances surrounding that, their interactions
              prior to the night are different. The Court does not believe
              that the circumstances are the same in their relationship and
              the Court would also note that this was after the incident on
              31 March 2012, where it is clear that some amount of
              displeasure was expressed from all the evidence . . . . So I’m
              not going to instruct on mistake of fact as to consent as to
              that.

       Trial defense counsel then further asserted that the consensual intimate activity
that took place between the appellant and SSgt JT between the charged March and July
2012 incidents provided a further basis for issuing the mistake of fact as to consent
instruction. The military judge replied that he was aware of this evidence, but this did not
change his ruling:

              The Court does not believe that that in and of itself gets us to
              mistake of fact as to consent on the couch that particular
              night, based on their interactions at the bar and before that.
              Sitting next to somebody on the couch and falling asleep
              is -- is different than, and in this Court’s opinion, versus the
              events that happened on the 31st of March.


                                             6                                   ACM 38493
       We find the military judge did not err in declining to issue a mistake of fact as to
consent instruction as to the charged July 2012 sexual assault. We assume for the
purposes of our analysis that mistake of fact as to consent may be an allowable
instruction for a charge of sexual assault,2 and that that sexual assault is a specific intent
crime requiring only a subjective mistake of fact in the appellant’s mind rather than a
mistake that is both subjectively held and objectively reasonable.3 Even making these
assumptions, the military judge did not err in declining to provide the instruction. As the
military judge noted, the July 2012 incident did not occur in a vacuum. It came just
months after the Kansas City incident, where SSgt JT woke to the appellant’s mouth on
her exposed breast. SSgt JT’s reaction to this incident—including moving out of the
house, confronting the appellant in front of other people, threatening to report him to
investigators, and developing a relationship with another man—leaves the appellant little
room to argue he believed SSgt JT consented to the July 2012 activity. In addition, as the
military judge noted, the July 2012 incident was different in significant ways from the
March 2012 incident. In the July 2012 incident, the appellant and SSgt JT were not in
bed together and had engaged in no amorous activity that evening. SSgt JT testified that
she did not kiss the appellant, initiate any romantic contact, or indicate any intention to
the appellant that she was interested in sexual activity that night. No evidence was
introduced to contradict this testimony. The fact that she consented to intimate activity
with the appellant at some point about three weeks before the July 2012 incident does not
change the equation, particularly since she was not asleep when that consensual activity
occurred. The fact remains that by the night in question, the appellant had no reason to
believe that SSgt JT consented to sexual activity while she lay asleep on the couch. The
military judge did not err by not providing this instruction.



2
  As we have noted, “[t]he history of the mistake of fact defense relative to offenses under Article 120, UCMJ, is
complicated.” United States v. Waddell, ACM 38500, unpub. op at 6 (A.F. Ct. Crim. App. 11 February 2015).
“This history, plus the creation of Article 120(b)(3), UCMJ, criminalizing sexual conduct with unaware or impaired
victims, has led some commentators to question whether or when mistake of fact as to consent is an affirmative
defense for that offense.” Id.
3
  For specific intent crimes a mistake of fact need only to have existed in the mind of the accused, while general
intent crimes require that the mistake of fact was both subjectively held and objectively reasonable.
Rule for Courts-Martial 916(j)(1); United States v. DiPaola, 67 M.J. 98, 102 (C.A.A.F. 2008). While no court has
definitively taken a position as to the offense of sexual assault under the current version of Article 120, UCMJ, a
reasonable argument can be made that sexual assault under the current version of Article 120, UCMJ, is a general
intent crime because it does not require proof of a particular specific intent. Cf. United States v. Hibbard, 58 M.J.
71, 72 (C.A.A.F. 2003) (holding rape by force under a prior version of Article 120, UCMJ, was a general intent
crime). When the parties discussed the issue of the mistake of fact instruction in this trial, they also agreed sexual
assault was a general intent offense. If sexual assault is considered to be a general intent offense, a mistake of fact
as to consent instruction would not be required unless some evidence was introduced to show not only that the
appellant held this mistake of fact, but that the mistake of fact was objectively reasonable. See United States v.
Gurney, 73 M.J. 587, 598–99 (A.F. Ct. Crim. App. 2014) (holding that mistake of fact as to consent instruction was
not required for charge of maltreatment because no evidence was presented that the appellant’s belief was
objectively reasonable).



                                                          7                                            ACM 38493
       We next address the military judge’s decision not to issue a voluntary intoxication
instruction. Trial defense counsel asked the military judge to instruct the members
concerning the defense of voluntary intoxication in regard to the sexual assault
specification. Trial defense counsel initially opined that the offense represented a
specific intent element requiring proof that the appellant intended to abuse, humiliate,
harass, degrade, or to arouse or gratify the sexual desires of any person. Based on this,
combined with evidence that the appellant was consuming alcohol leading up to the July
2012 incident, trial defense counsel asserted that “more than some evidence” was
presented regarding the appellant’s intoxication. After further questioning by the military
judge, trial defense counsel expanded his request for the instruction to be issued
regarding the abusive sexual contact specification arising from the March 2012 incident
as well.

       Discussion between the military judge and trial counsel then revealed that the
sexual assault statute did not contain a specific intent element, as trial defense counsel
had initially represented. Once the military judge realized the sexual assault statute did
not contain such an element, he ruled that he would not give the voluntary intoxication
instruction. Trial counsel then conceded that the instruction was appropriate for the
abusive sexual contact specification resulting from the March 2012 incident, and the
military judge instructed the members accordingly. The appellant now alleges that the
military judge erred in not providing the voluntary intoxication instruction with respect to
the sexual assault specification. We disagree.

       R.C.M. 916(l)(2) provides as follows:

              Voluntary intoxication, whether caused by alcohol or drugs,
              is not a defense. However, evidence of any degree of
              voluntary intoxication may be introduced for the purpose of
              raising a reasonable 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.

       We assume again—only for purposes of this analysis—that sexual assault is a
specific intent offense requiring only a subjective mistake of fact in the appellant’s mind
rather than a mistake that is both subjectively held and objectively reasonable. We
further assume that the appellant’s intoxication required a voluntary intoxication
instruction under the facts of this case. Even with these assumptions, the appellant was
not prejudiced by any error. Failure to provide a required instruction is constitutional
error reviewed to determine whether that error was harmless beyond a reasonable doubt.
United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002) (quoting Chapman v.
California, 386 U.S. 18, 24 (1967)). The relevant question is whether it is “clear beyond
a reasonable doubt that a rational jury would have found the defendant guilty absent the


                                              8                                    ACM 38493
error?” Neder v. United States, 527 U.S. 1, 18 (1999). The government bears the burden
of showing a constitutional error is harmless beyond a reasonable doubt, and must
demonstrate that “no reasonable possibility” exists that the error “contributed to the
contested findings of guilty.” United States v. Othuru, 65 M.J. 375, 377 (C.A.A.F. 2007).
Applying this standard, we find beyond a reasonable doubt that the members’ findings
would not have changed had the mistake of fact as to consent and/or voluntary
intoxication instruction been provided. Regardless of the appellant’s state of mind, the
evidence clearly revealed that SSgt JT was asleep during the charged sexual assault, and
that the appellant knew or should have known she was asleep. Additionally, mistake of
fact and voluntary intoxication instructions were provided for the abusive sexual contact
specification involving the March 2012 incident. Despite the fact that there was some
evidence supporting a mistake of fact as to consent for the March 2012 incident, the
members nonetheless convicted him of this offense. We therefore see no reasonable
possibility that the members would have acquitted the appellant of either specification
involving the July 2012 incident had these instructions been provided.

                                     Issue III: Void for Vagueness

        The appellant next alleges that Article 120(b)(2), UCMJ, criminalizing sexual
assault, is unconstitutionally vague because the appellant “has no way of knowing what
the proscribed conduct is in his circumstances.” He asserts that the statute does not
appear to contain any mens rea requirement, but that this court may “read one in” to
avoid interpreting the statute as creating a strict liability offense. He contends that the
statute is unconstitutionally vague in two ways: (1) it lacks fair notice because on its
face, it is unclear as to what intent is required with regard to the sexual contact itself; and
(2) it encourages arbitrary enforcement because it lacks a requirement that the sexual
contact be done with the specific intent to abuse, degrade, humiliate, or arouse the sexual
desires of any person. Relatedly, he contends that the statute is overbroad because it
potentially criminalizes liberty interests protected under Lawrence v. Texas, 539 U.S. 558
(2003). The crux of all these arguments is that the statute could criminalize the
unintentional touching of a penis to a vagina.4 We disagree with these assertions.

      We review the constitutionality of a statute de novo. United States v. Disney,
62 M.J. 46, 48 (C.A.A.F. 2005).

        The Due Process Clause of the Fifth Amendment5 “requires ‘fair notice’ that an
act is forbidden and subject to criminal sanction” before a person can be prosecuted for
committing that act. United States v. Vaughan, 58 M.J. 29, 31 (C.A.A.F. 2003)
(quoting United States v. Bivins, 49 M.J. 328, 330 (C.A.A.F. 1998)). Due process “also

4
  Trial defense counsel filed a motion to dismiss based on void-for-vagueness grounds. However, that motion was
focused on the indecent conduct charge and specification, not the sexual assault specification. The argument
presented in trial defense counsel’s motion is not relevant to the discussion of the issue raised on appeal.
5
  U.S. CONST. amend. V.


                                                      9                                         ACM 38493
requires fair notice as to the standard applicable to the forbidden conduct.” Id. (citing
Parker v. Levy, 417 U.S. 733, 755 (1974)). In other words, “[v]oid for vagueness simply
means that criminal responsibility should not attach where one could not reasonably
understand that his contemplated conduct is proscribed.” Parker, 417 U.S. at 757 (citing
United States v. Harriss, 347 U.S. 612, 617 (1954)). In short, a void for vagueness
challenge requires inquiry into whether a reasonable person in the appellant’s position
would have known that the conduct at issue was criminal. See, e.g., Vaughan,
58 M.J. at 31 (upholding a conviction under the General Article for leaving a 47-day-old
child alone on divers occasions for as long as six hours; while the Article did not
specifically list child neglect as an offense, the appellant “should have reasonably
contemplated that her conduct was subject to criminal sanction, and not simply the moral
condemnation that accompanies bad parenting”); United States v. Sullivan, 42 M.J. 360,
366 (C.A.A.F. 1995) (“In our view, any reasonable officer would know that asking
strangers of the opposite sex intimate questions about their sexual activities, using a false
name and a bogus publishing company as a cover, is service-discrediting conduct under
Article 134,” UCMJ).

       In addition, due process requires that criminal statutes be defined “in a manner that
does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson,
461 U.S. 352, 357 (1983). This “more important aspect of vagueness doctrine” requires
that the statute “‘establish minimal guidelines to govern law enforcement’” rather than
“‘a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their
personal predilections.’” Id. at 358 (quoting Smith v. Goguen, 415 U.S. 566, 574–75
(1974)).

       The relevant provision of Article 120(b)(2), UCMJ, makes it a crime to “commit[]
a sexual act upon another person when the person knows or reasonably should know that
the other person is asleep, unconscious, or otherwise unaware that the sexual act is
occurring.” A “sexual act” is defined, in relevant part, as “contact between the penis and
the vulva . . . and for purposes of this subparagraph contact involving the penis occurs
upon penetration, however slight.” Article 120(g)(1), UCMJ.

       We find that Article 120(b)(2), UCMJ, is not void for vagueness, and the appellant
was on reasonable notice that his conduct was proscribed. The record does not support
the appellant’s contention that his conduct in penetrating SSgt JT was unintentional.
Instead, the appellant pulled down SSgt JT’s shorts and underwear and penetrated her to
the point where he deposited some of his sperm in her cervical pool. He did this while he
knew or reasonably should have known that SSgt JT was asleep. Around this same time,
he masturbated to the point where he ejaculated on her. When investigators confronted
him with SSgt JT’s allegations, he did not allege that he might have penetrated her
inadvertently. Instead, he denied penetrating her altogether. Under these circumstances,
the appellant simply cannot argue that his conduct might have been unintentional.
Therefore, his argument that the statute might cover unintentional penetration has no


                                             10                                 ACM 38493
bearing on this case. Likewise, we reject the appellant’s contention that the statute
infringes upon constitutionally-protected interests recognized in Lawrence. Lawrence
recognized that sexual conduct is protected where “two adults, with full and mutual
consent from each other, engaged in sexual practices common to a homosexual lifestyle.”
Lawrence, 539 U.S. at 578. “Nonconsensual sexual activity is simply not protected under
Lawrence,” and a sexual act “with a sleeping victim does not implicate constitutional
protections or even arguably constitute permissible behavior.” United States v. Whitaker,
72 M.J. 292, 293 (C.A.A.F. 2013). Therefore, there is no possibility that the statute, as
applied to the appellant’s conduct, infringed upon constitutionally-protected interests.

                                  Issue V: Preemption

       The appellant alleges that the military judge erred by ruling that the indecent
conduct charge and specification were not preempted by Articles 120 and 128, UCMJ.
The appellant alleges that Congress intended to limit prosecution of indecent acts to only
the offenses delineated in Articles 120 (covering various sexual offenses) and 128
(covering assault), UCMJ. He asserts that when Congress replaced the specifically-listed
offense of indecent acts under Article 134, UCMJ, with a more expanded version of
Article 120, UCMJ, Congress intended to preempt use of Article 134, UCMJ, to charge
this type of offense. The defense raised this issue at trial, and the military judge found
the Article 134, UCMJ, offense was not preempted. We find no error in the military
judge’s ruling.

      We review claims of preemption de novo.                  United States v. Jones,
66 M.J. 704, 706 (A.F. Ct. Crim. App. 2008).

       The preemption doctrine generally prohibits application of Article 134, UCMJ, to
conduct covered by Articles 80 through 132, UCMJ, in certain situations. As typically
applied, the doctrine states “that where Congress has occupied the field of a given type of
misconduct by addressing it in one of the specific punitive articles of the code, another
offense may not be created and punished under Article 134, UCMJ, by simply deleting a
vital element.” United States v. Kick, 7 M.J. 82, 85 (C.M.A. 1979). However,
preemption does not automatically apply just because the act charged under Article 134,
UCMJ, contains a subset of the elements of the enumerated offense. Rather, the
preemption doctrine only precludes prosecution under Article 134, UCMJ, where two
elements are met:

             (1) “Congress intended to limit prosecution for . . . a
             particular area” of misconduct “to offenses defined in specific
             articles of the Code,” and (2) “the offense charged is
             composed of a residuum of elements of a specific offense.”




                                            11                                 ACM 38493
United States v. Curry, 35 M.J. 359, 360–61 (C.M.A. 1992) (quoting United States v.
McGuinness, 35 M.J. 149, 151–52 (C.M.A. 1992)); see also United States v. Wright,
5 M.J. 106 (C.M.A. 1978).

        The continued viability of the preemption doctrine has been called into question in
recent years because our superior court has recently stressed that Article 134, UCMJ,
contains a distinct criminal element not inherently included in the enumerated offenses of
Articles 80 through 132, UCMJ. Therefore, it remains to be seen what continuing
viability the preemption doctrine has. See United States v. Jones, 68 M.J. 465, 474 n.2
(Baker, J., dissenting) (“[T]he majority has also eliminated the issue of multiplicity and
claims of preemption for clauses 1 and 2 of Article 134, UCMJ . . . .”). However, our
superior court has not expressly stated that the preemption doctrine no longer applies or
that it now applies differently in light of case law developments concerning Article 134,
UCMJ. We therefore presume for purposes of this opinion that the preemption doctrine
still applies as it traditionally has.

       At trial, the defense moved to dismiss the Article 134, UCMJ, indecent conduct
charge and specification, arguing that the government was prohibited under the
preemption doctrine from charging this conduct under the General Article. Trial defense
counsel noted that the Department of Defense had proposed including a
specifically-listed indecent conduct offense under Article 134, UCMJ, but the President
did not adopt this proposed amendment. Trial defense counsel also observed that before
1 October 2007, crimes involving indecent acts were charged under a specifically-listed
provision in Article 134, UCMJ, but the 2007 Amendment to the Manual for Courts-
Martial consolidated several sexual misconduct offenses and replaced the Article 134,
UCMJ, offense of indecent acts with an indecent act provision in Article 120, UCMJ.
When Article 120, UCMJ, was further amended in 2012, it did not include a separate
indecent conduct or indecent acts offense. Therefore, trial defense counsel asserted,
Congress intended for Article 120, UCMJ, to cover all sexual offenses in the military,
and Congress specifically intended not to create an Article 134, UCMJ, offense of
indecent acts or indecent conduct.6 Alternatively, trial defense counsel asserted, the
indecent conduct charged in this case is preempted by Article 128, UCMJ, assault
consummated by a battery.

      The military judge denied the defense’s preemption motion. The military judge
thoroughly analyzed this issue, and his analysis is worth duplicating in full here:

                 The defense argues that Article 120 and Article 128 preempt
                 the Article 134 indecent conduct specification. Of note, the
                 Article 134 specification does not attempt to criminalize
6
  Trial defense counsel noted that sodomy and forcible sodomy, Article 125, UCMJ, 10 U.S.C. § 925, offenses are
not covered by Article 120, UCMJ, but asserted that Article 125, UCMJ, “remains the exception to the rule [and]
there is movement toward bringing the offense of sodomy and forcible sodomy into Article 120’s fold.”


                                                      12                                        ACM 38493
             conduct of a traditional common law offense by removing an
             element, such as the intent element. Here, the specification
             adds an indecency element. Indecency is only an element in
             the current Article 120[b] and 120c when describing indecent
             conduct with a child, indecent language with a child, and
             indecent exposure. Indecent language with an adult remains
             an Article 134 offense. The specification is also not an
             Article 128 assault consummated by a battery offense with an
             element missing. As above, indecency is still a new element.
             A second new element, asleep, unconscious or otherwise
             unaware[,] is also new. Further, the defense has failed to
             present sufficient evidence that Congress intended Article
             128, Article 120, or any other Article in the UCMJ from
             Article 80 to 132 to cover indecent conduct under these
             circumstances. The defense does not cite to detailed
             legislative history that this type of behavior may not be
             charged under Article 134. The defense cites to two portions
             of a [Joint Service Committee (JSC)] Subcommittee report.
             This report mentions preemption and consolidation of all
             nonconsensual sex crimes in Article 120, but it [is] far from
             detailed legislative history. The report’s comments should be
             kept in context with four factors: 1) Article 125 remains a
             nonconsensual sex crime outside of Article 120; 2) Congress
             has twice revised Article 120 in the last seven years; 3) A JSC
             Subcommittee Report cannot substitute for legislative history;
             and 4) a more recent JSC action in 2012 publish[ed] in the
             Federal Register the proposed Indecent Conduct offense on
             which this specification is based. The fact that the President’s
             last Executive Order did not include approval of the indecent
             conduct offense does not mean that such action is dead. Of
             note, no Executive Order to establish Part IV of the MCM for
             Article 120 has been approved to date and the maximum
             punishments for Article 120 were approved by Executive
             Order well after implementation of the new Article 120.

       We find no error with the military judge’s ruling that the preemption doctrine did
not prohibit the government from charging the appellant’s indecent conduct under Article
134, UCMJ. We need not even reach the issue of Congress’s intent, because the Article
134, UCMJ, offense charged is not composed of a residuum of elements of a specific
offense. The indecent conduct offense charged adds an element not required by any
applicable Article 120, UCMJ, or Article 128, UCMJ, offense—that the appellant’s
conduct was indecent. The military judge instructed the members that to convict the
appellant of this offense, they had to find the appellant’s actions were indecent, and he


                                            13                                  ACM 38493
defined that term as relating to “sexual impurity which is grossly vulgar, obscene, and
repugnant to common propriety, and tends to excite sexual desire or deprave morals with
respect to sexual relations.” In addition, the Article 134, UCMJ, offense required proof
that the appellant’s conduct was service discrediting and prejudicial to good order and
discipline, an element not contained in any Article 120 or 128, UCMJ, offense.
Therefore, this is not a situation where the government created and punished another
offense by simply deleting a vital element.

       Our decision is consistent with a somewhat related holding in United States v.
Quick, 74 M.J. 517, 522–23 (N.M. Ct. Crim. App. 2014), where the Navy-Marine Corps
Court of Criminal Appeals held that “the appellant has not demonstrated that the 2012
Congressional amendment to Article 120, UCMJ, preempted the use of Article 134,
UCMJ, to criminalize indecent conduct that is prejudicial to good order and discipline or
as conduct of a nature to bring discredit upon the armed forces.” In Quick, the appellant
alleged that his conviction for indecent conduct by engaging in a video-recorded group
sex encounter was preempted by Article 120c, UCMJ. The appellant asserted that once
Congress enacted Article 120c, UCMJ, (covering various sexual misconduct including
indecent viewing, visual recording, or broadcasting), indecent conduct was no longer an
offense because it is not listed as a specific offense under the 2012 version of the UCMJ,
and thus, “Congress did not intend to criminalize private, consensual group sex under the
2012 UCMJ.” Id. at 522. The court rejected this argument, finding “Article 120c was
only ‘intended to criminalize non-consensual sexual misconduct that ordinarily subjects
an accused to sex offender registration.’” Id. (quoting Manual for Courts-Martial,
United States (2012 ed.), App. 23 at A23-16). While not directly on point, Quick
supports the general proposition that Congress did not necessarily intend for all instances
of sexual misconduct such as indecent conduct to be subsumed within Article 120,
UCMJ.7




7
  On a related note, our decision today does not conflict with our order in the interlocutory appeal of United States v.
Long, Misc. Dkt. No. 2014-02 (A.F. Ct. Crim. App. 2 July 2014) (order). In Long, we held that the military judge
did not err in determining that the offenses alleged in four Article 134, UCMJ, specifications were preempted by
Article 120b, UCMJ, because the elements of the Article 134, UCMJ, offenses were no different than a charged
offense for violating Article 120b, UCMJ, and Congress intended Article 120b, UCMJ, to be a comprehensive
statute to address sexual misconduct with children. In Long, the concern was that the government used the General
Article to enlarge the age range of the enumerated offense of Article 120b, UCMJ. Our holding was based on the
concern that the “charged specification involves ‘the dropping of an element of a specifically denounced offense’
and converting it to a broader age range.” Id. at 8–9 (quoting United States v. Herndon, 36 C.M.R. 8, 11
(C.M.A. 1965)). No such concern is present in the instant case. The government did not charge the appellant with
indecent conduct under Article 134, UCMJ, to broaden an existing enumerated offense; rather, it charged the
appellant with an act under Article 134, UCMJ, that is not an offense at all under the enumerated articles, and in so
doing, took upon itself the burden of proving additional elements not contained within any offense under Article
120, UCMJ, or Article 128, UCMJ.



                                                          14                                            ACM 38493
                                  Issue VI: Multiplicity

       At trial, defense counsel moved to dismiss the indecent conduct charge arising
from the July 2012 incident as multiplicious and an unreasonable multiplication of
charges. Trial defense counsel asserted that the sexual assault specification subsumed the
indecent conduct charge and covered the same conduct as the indecent conduct charge
because they involved the same act. In other words, the defense asserted, the indecent
conduct (ejaculating on SSgt JT) “was the end result of the act” charged as sexual assault.
Trial defense counsel argued that, if the two separate charges and specifications were
allowed to stand, the government could separately charge any ejaculation that results
from a sexual assault.

       We review issues of multiplicity de novo. United States v. Anderson, 68 M.J. 378,
385 (C.A.A.F. 2010). A military judge’s decision to deny relief for unreasonable
multiplication of charges is reviewed for an abuse of discretion. United States v.
Campbell, 71 M.J. 19, 22 (C.A.A.F. 2012) (citing United States v. Pauling,
60 M.J. 91, 95 (C.A.A.F. 2004)).

       Multiplicity in violation of the Double Jeopardy Clause of the Constitution occurs
when “‘a court, contrary to the intent of Congress, imposes multiple convictions and
punishments under different statutes for the same act or course of conduct.’” Anderson,
68 M.J. at 385 (quoting United States v. Roderick, 62 M.J. 425, 431 (C.A.A.F. 2006))
(emphasis omitted). Accordingly, an accused may not be convicted and punished for two
offenses where one is necessarily included in the other, absent congressional intent to
permit separate punishments. See United States v. Teters, 37 M.J. 370, 376
(C.M.A. 1993); United States v. Morita, 73 M.J. 548, 564 (A.F. Ct. Crim. App. 2014).
The Supreme Court laid out a “separate elements test” for analyzing multiplicity issues:
“The applicable rule is that, where the same act or transaction constitutes a violation of
two distinct statutory provisions, the test to be applied to determine whether there are two
offenses or only one, is whether each provision requires proof of a fact which the other
does not.” Blockburger v. United States, 284 U.S. 299, 304 (1932). Accordingly,
multiple convictions and punishments are permitted if the two charges each have at least
one separate statutory element from each other. Morita, 73 M.J. at 564. Where one
offense is necessarily included in the other under the separate elements test, legislative
intent to permit separate punishments may be expressed in the statute or its legislative
history, or “it can also be presumed or inferred based on the elements of the violated
statutes and their relationship to each other.” Teters, 37 M.J. at 376–77.

       Even if charged offenses are not multiplicious, courts may apply the doctrine of
unreasonable multiplication of charges to dismiss certain charges and specifications.
R.C.M. 307(c)(4) summarizes this principle as follows: “What is substantially one
transaction should not be made the basis for an unreasonable multiplication of charges
against one person.” The principle provides that the government may not needlessly


                                             15                                 ACM 38493
“pile on” charges against an accused. United States v. Foster, 40 M.J. 140, 144 n.4
(C.M.A. 1994). Our superior court has endorsed the following non-exhaustive list of
factors to consider in determining whether unreasonable multiplication of charges has
occurred:

          (1) Did the [appellant] object at trial that there was an
              unreasonable multiplication of charges and/or specifications?

          (2) Is each charge and specification of charges and specifications
              aimed at distinctly separate criminal acts?

          (3) Does the number of charges and specifications misrepresent
              or exaggerate the appellant’s criminality?

          (4) Does the number of charges and specifications [unreasonably]
              increase the appellant’s punitive exposure?

          (5) Is there any evidence of prosecutorial overreaching or abuse
              in the drafting of the charges?

United States v. Quiroz, 55 M.J. 334, 338–39 (C.A.A.F. 2001) (citation and internal
quotation marks omitted). Unlike multiplicity, where an offense found multiplicious for
findings is necessarily multiplicious for sentencing, the concept of unreasonable
multiplication of charges may apply differently to findings than to sentencing. Campbell,
71 M.J. at 23. In a case where the Quiroz factors indicate unreasonable multiplication of
charges principles affect sentencing more than findings, “the nature of the harm requires
a remedy that focuses more appropriately on punishment than on findings.” Quiroz,
55 M.J. at 339.

        The military judge denied the motion to dismiss, finding the charging decisions in
this case did not constitute multiplicity or an unreasonable multiplication of charges, at
least regarding the findings portion of the case. The military judge first found the two
specifications were not multiplicious because the elements of the two offenses are
different. Regarding unreasonable multiplication of charges, the military judge analyzed
the relevant factors and concluded, “The Court does not find the government is piling on
charges, but is instead trying to capture the full set of allegations for presentation to the
fact finder.” However, the military judge merged the two offenses for sentencing.

       We conclude, as did the military judge, that the sexual assault and indecent
conduct charges and specifications are not multiplicious. The sexual assault specification
required proof that the appellant penetrated, however slightly, SSgt JT’s vulva with his
penis while she was asleep. The indecent conduct required proof that the appellant
ejaculated on SSgt JT while she was asleep, and that such conduct was prejudicial to


                                             16                                 ACM 38493
good order and discipline and of a nature to bring discredit upon the armed forces. The
only element the two offenses share, after the members’ exceptions, is that SSgt JT was
asleep during the sexual acts. Sexual assault required proof of penetration that indecent
conduct did not, and indecent conduct required proof of ejaculation plus the General
Article’s terminal element, items not required to prove sexual assault. One offense is not
necessarily included in the other, and therefore no multiplicity concern is present.

      We also find the military judge did not abuse his discretion in finding that
unreasonable multiplication of charges concerns affected sentencing only. Applying the
Quiroz factors, the military judge found:

              1) The appellant objected at trial;

              2) Each offense is based on separate criminal acts, because
              the members could reasonably have found the appellant guilty
              of just one of the two charged acts and the appellant admitted
              to one charged act while denying the other. The charging
              scheme attempted to allow flexibility for the members
              depending on their assessment of the witnesses’ credibility
              and the strength of the evidence;

              3) The inclusion of both charges does not misrepresent or
              exaggerate the appellant’s criminality, but instead captures
              two separate wrongdoings. Even though the two events may
              have occurred close in time, each could occur completely
              independently of the other;

              4) The appellant’s punitive exposure would increase by the
              two convictions, but not unfairly so; and

              5) The government did not attempt to “pile on” charges but
              rather tried to capture the full set of allegations to present to
              the members.

The military judge, writing after trial, then concluded the following:

              In this case, the members found the Accused guilty of both
              charges. The Court considered the remedy of dismissing the
              Additional Charge and Specification [indecent conduct]. The
              Court determined such action was inappropriate in the
              interests of justice. The evidence supporting the Additional
              Charge and Specification was stronger based on the
              admissions of the Accused. The trial included a significant


                                             17                                   ACM 38493
                 number of motions properly preserving numerous appellate
                 issues. Additionally, the collateral consequences to the
                 Accused of the conviction for sexual assault are far greater
                 than the indecent conduct specification. Dismissal of the
                 indecent conduct specification is an unnecessary remedy at
                 the trial level considering the interests of justice.

However, orally at trial and in his later written ruling, the military judge did find the two
charges and specifications represented an unreasonable multiplication of charges when it
came to sentencing. The military judge found that without merging the two offenses for
sentencing, the appellant might unfairly “face an increased potential sentence even
though these two events were close in time.”

       The military judge’s resolution of this issue involved no error of law and was
thorough and rational. We therefore find no abuse of discretion in his ruling. We note,
as did the military judge, that it was entirely possible for the appellant to have committed
one offense but not the other, and in fact, he essentially admitted to having committed
one offense but denied committing the other. The two charges were aimed at separate
wrongs that were separated by some unknown amount of time. In fact, drafting two
charges resulting from the July 2012 incident is consistent with the appellant’s account to
investigators, in which he stated that he possibly “dry humped” her in order to wake her
for sex, and it was only when that failed that he masturbated next to her and ejaculated on
her. The defense presented no evidence of prosecutorial overreaching or abuse in
drafting the charges this way, and with the merger of the two offenses for sentencing, the
appellant did not unfairly face any increased punitive exposure. This issue provides no
grounds for further relief by the appellant.8

                                    Issue VII: DNA Expert Testimony

       After the sexual assault examination gathered evidence from SSgt JT and
investigators took a sample of the appellant’s DNA from him, the evidence was sent to a
forensics laboratory for DNA analysis. A forensic biologist received the evidence and
conducted serology and DNA analysis on the items. His report concluded that the semen

8
   Though not specifically raised by the appellant, we considered whether dismissing one specification was
appropriate under United States v. Elespuru, 73 M.J. 326 (C.A.A.F. 2014). In Elespuru, our superior court held that
the appellant waived his claim that specifications for abusive sexual contact and wrongful sexual contact were
multiplicious. However, the court nonetheless held that “[t]he Government charged and tried the abusive sexual
contact and wrongful sexual contact offenses in the alternative for exigencies of proof, but nonetheless argues on
appeal that both convictions should stand. While the Government’s charging strategy was appropriate, we disagree
that both convictions may stand.” Id. at 329. This is not the type of situation covered by Elespuru. While the
record of trial contains some discussion indicating that the charging decisions in this case could be seen as an
attempt to charge the appellant in the alternative, the government never explicitly made this representation at trial
and the record overall indicates that the charging scheme was intended to convey that the prosecution believed the
appellant committed both of these separate acts.


                                                         18                                          ACM 38493
DNA profile obtained through extraction of evidence taken from SSgt JT matched the
appellant’s DNA profile. At trial, the government attempted to call this biologist as an
expert witness to testify as to his findings; however, the biologist experienced a medical
issue and was unable to appear. Therefore, the government called a substitute expert,
Dr. Timothy Kalafut. Dr. Kalafut was another forensic biologist at the same laboratory
and had served as the technical reviewer of the original biologist’s testing.

        Trial defense counsel objected to Dr. Kalafut’s testimony as testimonial hearsay in
violation of the Confrontation Clause.9 After hearing from Dr. Kalafut, the military judge
noted that the government did not intend to present the original biologist’s report into
evidence or use it in any way. Instead, the military judge found, “the government
intend[ed] to call Dr. Kalafut as a witness to explain his role as technical reviewer in the
DNA testing and provide his independent expert opinion under [Mil. R. Evid.] 703 of the
results.” The military judge issued, in relevant part, the following findings of fact:

                  Dr. Kalafut served as the technical reviewer of the DNA
                  testing in this case. Every USACIL report is peer reviewed
                  by another qualified examiner. Dr. Kalafut was such a
                  qualified examiner. He reviewed the case file in its entirety
                  and agreed with its overall conclusions. This process
                  attempts to rework the case from scratch by following the
                  paper trail prepared by the original examiner. Dr. Kalafut
                  doesn’t even read the report until he completely does his own
                  analysis. Dr. Kalafut initialed the technical review that the
                  case was finished and complete. He agreed with the findings
                  and the report was issued by [the original biologist]. This
                  decision to certify the results was an exercise of his
                  independent judgment.

                  ...

                  Dr. Kalafut’s trial testimony is being drawn from the review
                  of the computer generated data that is data typically relied
                  upon by forensic biologists to draw conclusions. Dr. Kalafut
                  will identify samples as vaginal swab, cervical swab, and
                  external skin swab solely based on the label that is embedded
                  in the electronic data file. The name on each of the labels is
                  written during collection of the sample. USACIL examiners
                  simply use the label that was on the original sealed envelope.
                  They rely entirely on whoever put that swab into that box in


9
    U.S. CONST. amend. VI.


                                                19                                 ACM 38493
              that specific way and labeled it in that manner to identify
              where it came from, on whoever’s body.

Appellate defense counsel does not challenge these findings of fact, and we adopt them
as our own.

       The military judge then noted one possible issue caused by Dr. Kalafut’s
testimony. He observed that the original biologist would have input the label names into
the computer system, and Dr. Kalafut later relied on this data in the computer system to
reach his ultimate conclusion that the DNA profile of evidence obtained from SSgt JT
matched the appellant’s DNA profile. However, he found that this matter did not present
a concern of testimonial hearsay for the following reasons:

              Dr. Kalafut testified that he can sometimes tell if an error is
              made in labeling. Additionally, the origin of the terms on the
              labels is from those who initially collected the samples. In
              this case, the [Air Force Office of Special Investigations]
              agent and [the nurse who conducted the sexual assault
              examination] are available and subject to cross-examination.
              Similarly, as Dr. Kalafut acted as technical reviewer, he too
              can be cross-examined about the data on which he relied.
              While some may argue that [the original biologist] is the right
              witness from cross-examination as he did the labeling, the
              Court believes that this labeling qualifies as non-testimonial
              for several reasons. First, it is a routine cataloguing of the
              labels that others in the process affixed to the samples.
              Second, at this phase in the testing, [the original biologist]
              had no idea whether the DNA profiles would result in a match
              or not. While he knew he was assisting . . . in a criminal
              investigation against a particular individual, he was not at the
              point where he would know that entering data was the
              production of evidence with an eye toward trial. Finally,
              entering simple data labels in a computer system have no
              indicia of solemnity and bear no resemblance to formalized
              testimonial materials. Instead, these data labels are similar to
              internal chain-of-custody and internal review documents in
              urinalysis testing that are used to maintain internal control,
              not to create evidence for use at a later trial.

       The military judge therefore denied the defense motion to exclude Dr. Kalafut’s
testimony. He ruled that Dr. Kalafut could “testify to his independent opinions as long as
he does not repeat inadmissible testimonial hearsay.” He then placed several limits on
Dr. Kalafut’s testimony to ensure the witness did not cross over into repeating testimonial


                                             20                                  ACM 38493
hearsay. These limits were: (1) Dr. Kalafut was prohibited from repeating any
testimonial hearsay of the process specifically used by the initial biologist, or repeating
comments in the original biologist’s notes or report in giving Dr. Kalafut’s opinion;
(2) Dr. Kalafut could testify to the process he conducted as a technical reviewer and
could tell the members which parts of the testing he did not do personally, and he could
tell the members in “very general terms” the categories of things he relies on as an expert
without repeating the substance of any of those things; and (3) Dr. Kalafut could testify
to his own independent conclusions but could not repeat the underlying findings of the
serology results or DNA profile unless he was relying on machine generated data or he
conducted the actual testing himself.

       During Dr. Kalafut’s testimony, the military judge took a very active role to
ensure his ruling was being followed. He stopped trial counsel and Dr. Kalafut a number
of times to remind the members that Dr. Kalafut did not perform the initial DNA testing
and to provide limiting instructions. Trial counsel and Dr. Kalafut also went to great
lengths to stress Dr. Kalafut’s role in this process. Appellate defense counsel concedes
that “through the majority of Dr. Kalafut’s testimony he did an excellent job of limiting
himself to only discussing machine-generated data and not testifying to conclusions.”
However, the appellant alleges that Dr. Kalafut introduced testimonial hearsay when he
stated that the samples taken from SSgt JT contain DNA consistent with the appellant.
The appellant alleges that in so testifying, Dr. Kalafut was simply repeating the original
biologist’s conclusions.

       We review a military judge’s decision to admit or exclude evidence for an abuse
of discretion. United States v. Clayton, 67 M.J. 283, 286 (C.A.A.F. 2009). Under the
abuse of discretion standard, we review the military judge’s findings of fact under the
clearly erroneous standard and his or her conclusions of law de novo. Id. The legal
question of whether admitted evidence constitutes testimonial hearsay in violation of the
Confrontation Clause is a question of law we review de novo. United States v. Blazier,
68 M.J. 439, 442 (C.A.A.F. 2010).

       The Sixth Amendment provides that in all criminal prosecutions, the accused shall
enjoy the right to be confronted with the witnesses against him. In Crawford v.
Washington, 541 U.S. 36, 53–54 (2004), the Supreme Court held that concern with
testimonial hearsay is the “primary object” of the Sixth Amendment, and that testimonial
hearsay may not be admitted unless the absent witness is unavailable and a prior
opportunity for cross-examination was afforded. The Court, however, did not adopt a
precise definition of “testimonial hearsay.”

       Since then, case law attempting to apply the principle of testimonial hearsay has
not followed a clear path. Our resolution of this issue renders it unnecessary to detail the
development of the testimonial hearsay principle; that history is laid out in our decision in
United States v. Katso, 73 M.J. 630 (A.F. Ct. Crim. App. 2014). In Katso, we held that


                                             21                                 ACM 38493
an appellant’s confrontation right was violated when a substitute DNA analyst was
permitted to testify in place of the analyst who actually conducted the DNA testing. We
found:

             [A]s a matter of fact the record of trial does not definitively
             establish that [the substitute expert] had first-hand knowledge
             as to whom the known DNA sample or its corresponding
             profile belonged. He was able to identify the appellant by
             name only by repeating the testimonial statement contained in
             [the original analyst’s] report that directly linked the appellant
             to the generated DNA profile. Without this connection, [the
             substitute expert] could testify that in his expert opinion the
             two DNA profiles [the original analyst] created by purifying,
             quantifying, and copying the DNA found in the swabs he
             analyzed matched one another in certain respects, but
             consistent with the Confrontation Clause, [the substitute
             expert] could not identify the appellant by name.

Id. at 638–39.

        The appellant complains of the same error in this case that we found in Katso: that
the substitute expert was only able to identify that the known DNA came from the
appellant by repeating testimonial hearsay. However, the record here is much better
developed than that in Katso, and supports the conclusion that Dr. Kalafut did not rely on
testimonial hearsay in his testimony. The military judge specifically found that Dr.
Kalafut was able to identify the source of the known DNA extraction by relying on his
own review of machine-generated data and simple computer system entries based solely
on labeling conducted by law enforcement investigators and the sexual assault nurse
examiner. Dr. Kalafut specifically testified in motions practice that he conducted his own
review of the DNA analysis in this case and came to his own independent opinion that the
male DNA extracted from SSgt JT was consistent with the appellant’s DNA. He came to
this conclusion before he ever looked at the report generated by the original forensic
biologist. As the military judge found, any connection Dr. Kalafut made between the
male DNA taken from SSgt JT and the appellant’s DNA profile was based solely on
chain of custody documents and machine-generated data. Such items typically do not
qualify as testimonial in nature.        United States v. Tearman, 72 M.J. 54, 61
(C.A.A.F. 2013). We therefore see this case as presenting a significantly different
situation from that in Katso, and we doubt Katso controls the outcome here.

       However, we need not definitively decide this issue, because even assuming the
appellant’s confrontation right was violated, any such error was harmless beyond a
reasonable doubt. We review this issue de novo. United States v. Kreutzer, 61 M.J. 293,
299 (C.A.A.F. 2005). Even if an accused’s constitutional right to confrontation is


                                            22                                    ACM 38493
violated, the findings and sentence may be upheld if the error was harmless beyond a
reasonable doubt. Tearman, 72 M.J. at 62. To determine whether a Confrontation
Clause error is harmless beyond a reasonable doubt, we examine factors such as: (1) the
importance of the unconfronted testimony, (2) whether that testimony was cumulative,
(3) the existence of corroborating evidence, (4) the extent of confrontation permitted, and
(5) the strength of the prosecution’s case. United States v. Sweeney, 70 M.J. 296, 306
(C.A.A.F. 2011).

       Having examined these factors and the entire record of trial, we are convinced
beyond a reasonable doubt that any error in admitting this one portion of Dr. Kalafut’s
testimony was harmless. Dr. Kalafut’s one answer the appellant now objects to was only
provided in re-direct examination, where he merely responded to a question about the
possibility of sample contamination during shipping. More importantly, the facts of this
case raised no real question about the source of the semen. The appellant admitted to
ejaculating on SSgt JT, and the defense did not allege that another person was the source
of the semen found in SSgt JT’s cervical pool. Rather, the question at trial was whether
the appellant’s semen from SSgt JT’s skin was somehow transferred to SSgt JT’s cervical
pool through contamination, either as she wiped herself off or when the sexual assault
examination was conducted. Dr. Kalafut’s primary contribution to the prosecution’s case
was to identify that semen was found in samples taken from SSgt JT and to discount the
possibility of contamination. Therefore, any connection Dr. Kalafut made between the
semen samples taken from SSgt JT and the appellant’s DNA was unimportant to the
prosecution’s case and cumulative with the appellant’s own admissions that he ejaculated
on her. Based on this, and the overall strength of the government’s case, we are
confident beyond a reasonable doubt that any error in admitting this one portion of Dr.
Kalafut’s testimony was harmless.

                                          Conclusion

       The approved findings and the sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and
the sentence are

                                          AFFIRMED.



              FOR THE COURT



              LEAH M. CALAHAN
              Deputy Clerk of the Court


                                              23                               ACM 38493
