This opinion is subject to administrative correction before final disposition.




                                Before
                 CRISFIELD, HITESMAN, and GASTON
                       Appellate Military Judges

                        _________________________

                          UNITED STATES
                              Appellee

                                     v.

                    Dashawn Q. NICHOL
        Aviation Ordnanceman Third Class (E-4), U.S. Navy
                          Appellant

                             No. 201800286

              Argued: 3 October 2019–Decided: 28 May 2020

    Appeal from the United States Navy-Marine Corps Trial Judiciary

                              Military Judge:
                     Robert P. Monahan (arraignment)
                       Michael D. Libretto (motions)
                      Derek Butler (motions and trial)

 Sentence adjudged 10 April 2018 by a general court-martial convened
 at Naval Station Norfolk, Virginia, consisting of officer and enlisted
 members. Sentence approved by the convening authority: reduction to
 pay grade E-1, confinement for 25 years, total forfeiture of pay and
 allowances, and a dishonorable discharge.

                             For Appellant:
                  Mr. Zachary Spilman, Esq. (argued)
         Lieutenant Clifton E. Morgan III, JAGC, USN (on brief)

                             For Appellee:
             Lieutenant Kimberly Rios, JAGC, USN (argued)
                Captain Brian L. Farrell, USMC (on brief)
                  United States v. Nichol, NMCCA No. 201800286
                               Opinion of the Court

   Senior Judge HITESMAN delivered the opinion of the Court, in which
   Chief Judge CRISFIELD and Senior Judge GASTON joined.

                           _________________________

         This opinion does not serve as binding precedent, but
          may be cited as persuasive authority under NMCCA
                   Rule of Appellate Procedure 30.2.

                           _________________________

HITESMAN, Senior Judge:
   Appellant was convicted, contrary to his pleas, of two specifications of
rape and two specifications of sexual assault, in violation of Article 120,
Uniform Code of Military Justice [UCMJ], 10 U.S.C. § 920 (2012). 1
   Appellant raises seven assignments of error [AOE] 2:
             I.     Whether prosecutorial         misconduct     prejudiced
                    Appellant.
            II.     Whether a sentence rehearing is required because of
                    improper prosecution sentencing argument and oth-
                    er asserted errors.
           III.     Whether it was error for the military judge to admit
                    certain prior consistent statements.
            IV.     Whether the military judge improperly admitted a
                    victim’s out-of-court statement as an excited utter-
                    ance.
             V.     Whether it was error for the military judge to admit
                    evidence of the alleged victims’ demeanor.
            VI.     Whether the evidence is factually sufficient to
                    support Appellant’s convictions.



   1 The military judge dismissed one specification of sexual assault conditioned up-
on successful appellate review of the corresponding specification of rape against the
same victim for the same sexual act.
   2 Appellant also raised, in a footnote, an additional AOE asserting the record is
incomplete. We reviewed this AOE and find it to be without merit. See United States
v. Matias, 25 M.J. 356, 361 (C.M.R. 1987).




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                 United States v. Nichol, NMCCA No. 201800286
                              Opinion of the Court

          VII.     Whether the military judge’s findings instructions
                   for the offense of sexual assault by causing bodily
                   harm (where the sexual act itself is the bodily harm)
                   failed to separate wrongful conduct from otherwise
                   innocent conduct. 3
    We find no prejudicial error with the findings and affirm them. 4 However,
we find that errors in the Government’s sentencing argument prejudiced
Appellant. Accordingly, we set aside the sentence and remand for a rehear-
ing.

                               I. BACKGROUND

   Appellant’s convictions arise out of three incidents involving three differ-
ent women over a two-year period.

A. Aviation Ordnanceman Airman [AOAN] DB
    Appellant and AOAN DB worked together in the same work center
onboard Naval Station Norfolk, Virginia. On 23 May 2015, they and Appel-
lant’s roommate went to a nearby amusement park and then returned to
Appellant’s apartment later in the evening. The three played video games
until AOAN DB became tired and wanted to go to sleep for the night. Appel-
lant’s roommate offered her the couch, but Appellant offered to let her sleep
in his bed. AOAN DB chose to sleep in Appellant’s bed. She changed her
clothes and got into Appellant’s bed leaving the light on and the door open.
Appellant entered the room twice and offered AOAN DB wine. She declined.
    After AOAN DB had fallen asleep, Appellant entered the room again,
ripped the covers off of her, grabbed her phone from her hand as she was
trying to call for help, pulled her shorts off, pried her legs open, and had
sexual intercourse with her.




   3 Appellant acknowledges that in United States v. McDonald, our superior court
recently rejected the same argument that he now presents. 78 M.J. 376, 380-81
(C.A.A.F. 2019). This AOE has no merit.
   4   This Court previously issued an opinion, United States v. Nichol, No.
201800286, 2020 CCA LEXIS 100 (N-M. Ct Crim. App. Mar 31, 2020) (op. with-
drawn). This Court granted Appellant’s Motion for Reconsideration and withdrew the
prior opinion.




                                        3
                 United States v. Nichol, NMCCA No. 201800286
                              Opinion of the Court

   AOAN DB dressed and found Appellant’s roommate playing video games.
She demanded that he take her home. Sometime later that summer, AOAN
DB told her boyfriend that Appellant had raped her.

B. Aviation Machinist’s Mate Third Class [AD3] BB
    AD3 BB also worked with Appellant and she was friends with AOAN DB.
On 12 June 2015, AD3 BB went to a party at another Sailor’s home where
she saw AOAN DB and Appellant. AD3 BB and AOAN DB later played beer
pong, a drinking game, for hours. After playing beer pong, AD3 BB hung out
on the patio with Appellant and another Sailor. Appellant told AD3 BB that
he had something to tell her and led her away to a secluded area behind a
stairwell and away from others at the party. Appellant then kissed AD3 BB,
who pushed him away and said, “No.” Appellant began to grab and hold AD3
BB, put his hand down her pants, and inserted his fingers into her vagina
several times. Appellant then turned AD3 BB around so that she was in front
of him and bent her over. He tried to take her shorts off, but AD3 BB resisted
and was able to escape when Appellant released her after they heard voices
nearby.
   AD3 BB texted her friend, Aviation Structural Mechanic Third Class
[AM3] NC, that Appellant “tried to take advantage of her.” 5 She then stayed
with AM3 NC the rest of the night. On the following Monday, AD3 BB told
another good friend, AO3 LR, what Appellant had done to her.

C. Ms. DR
    Ms. DR, a 38-year-old civilian mother of four, met Appellant in a chemis-
try class at a local community college. They became friends and occasionally
socialized outside of class. Ms. DR referred to Appellant as her FFB (fake
f[***]k buddy). On 27 June 2017, Appellant and Ms. DR made plans to meet
at his apartment and drink. Appellant showed Ms. DR a video of his friends
under the influence of Xanax. He then showed Ms. DR a Xanax pill that he
had taken from his friends. Ms. DR poured herself a vodka and pineapple
juice drink and went to the bathroom. She later felt “weird,” and after a
second trip to the bathroom, Appellant pushed her into his bedroom. Ms. DR
resisted and was able to get out of Appellant’s bedroom and return to the
living room. The next thing Ms. DR remembers is waking up the next morn-
ing nude on Appellant’s living room couch. Ms. DR left Appellant’s apartment
and went to work. She told a friend at work that she thought Appellant had



   5   Record at 1003.




                                      4
               United States v. Nichol, NMCCA No. 201800286
                            Opinion of the Court

“Bill Cosby’d” her, meaning that he drugged her and took advantage of her.
She later sent Appellant a text message accusing him of the same thing, in
the exact same words. At first, Appellant denied anything happened, but
then admitted they had sex. They continued to talk about the night for the
next few days even though Ms. DR reported the sexual assault once Appel-
lant admitted they had sex. On the morning of 29 June 2017, Ms. DR surrep-
titiously recorded a phone call with Appellant and discussed the events of the
evening, including how much she drank, the Xanax video, the Xanax pill, and
what led up to the two of them having sex. Appellant denied drugging Ms.
DR and was adamant that she should get a drug test and that he would pay
for it.
   Additional facts necessary to resolve the AOEs raised are addressed be-
low.

                               II. DISCUSSION

A. Prosecutorial Misconduct on Findings
    Appellant raises several allegations of prosecutorial misconduct that he
contends resulted in prejudicial error with respect to the findings. He avers
that trial counsel committed prosecutorial misconduct throughout the find-
ings phase of the trial: opening statement, examination of witnesses, and
closing argument. 6
    Prosecutorial misconduct occurs when a prosecutor “oversteps the bounds
of that propriety and fairness which should characterize the conduct of such
an officer in the prosecution of a criminal offense.” United States v. Fletcher,
62 M.J. 175, 178 (C.A.A.F. 2005) (quoting Berger v. United States, 295 U.S.
78, 84 (1935)). In general, it is “defined as action or inaction by a prosecutor
in violation of some legal norm or standard, e.g., a constitutional provision, a
statute, a Manual rule, or an applicable professional ethics canon.” United
States v. Meek, 44 M.J. 1, 5 (C.A.A.F. 1996) (citing Berger, 295 U.S. at 88.).
The conduct of the “trial counsel must be viewed within the context of the
entire court-martial . . . not [just] on words in isolation.” United States v.
Baer, 53 M.J. 235, 238 (C.A.A.F. 2000) (quoting United States v. Young, 470
U.S. 1, 16 (1985)).




   6 Under a separate AOE, infra, Appellant also contends that trial counsel pre-
sented improper argument during the sentencing phase of the trial.




                                       5
                     United States v. Nichol, NMCCA No. 201800286
                                  Opinion of the Court

    Improper argument is a type of prosecutorial misconduct, and we review
both de novo. United States v. Andrews, 77 M.J. 393, 398 (C.A.A.F. 2018)
(citation omitted)). When properly objected to at trial, we review for prejudi-
cial error. Id. (citing Fletcher, 62 M.J. at 179). “[When] no objection is made,
we hold the appellant has forfeited his right to appeal and we review for plain
error.” Id. Plain error “requires that: (1) an error was committed; (2) the error
was plain, or clear, or obvious; and (3) the error resulted in material prejudice
to substantial rights.” United States v. Pabelona, 76 M.J. 9, 11 (C.A.A.F.
2017) (citation and internal quotation marks omitted). “[W]hen trial counsel’s
comments, taken as a whole, [are] so damaging that we cannot be confident
that the members convicted the appellant on the basis of the evidence alone,”
an appellant’s conviction must be reversed. United States v. Hornback, 73
M.J. 155, 160 (C.A.A.F. 2014).

   1. Preserved errors
    Appellant argues that both trial counsel made improper arguments that
prejudiced his right to a fair trial. Appellant notes that civilian defense
counsel [CDC] raised several objections during closing arguments including
arguing facts not in evidence, arguing for an improper spillover of evidence,
disparaging the defense counsel, commenting on Appellant’s right to not
testify / remain silent, 7 and offering obviously objectionable hearsay state-
ments in front of the members.

         a. Arguing facts not in evidence
    While arguing that Appellant raped AOAN DB, the assistant trial counsel
stated, “Nobody wants to be the victim of a sexual assault at their first
command. It provides no benefit to them. In fact that harms a career.” 8 CDC
did not object to these comments, but did object during rebuttal argument
when the trial counsel stated, “[AOAN DB] questioned herself after, she
blamed herself. That’s a normal feeling for a victim of rape.” 9 The military
judge sustained the objection, stating, “There are no facts in evidence to
support that. Counsel may make arguments for reasonable inferences on




   7   We examined this claim but found it wholly unsupported by the record.
   8   Record [R.] at 1481.
   9   R. at 1550.




                                          6
                  United States v. Nichol, NMCCA No. 201800286
                               Opinion of the Court

facts [that] are in evidence, but I don’t recall anything to support that.” 10 We
consider the prejudicial effect of both issues together below.

         b. Arguing for an improper spillover
    Assistant trial counsel first commented on Appellant’s false statements to
Ms. DR, stating that Appellant would “say or do anything to keep a third
victim from coming forward to report him.” 11 CDC objected on the grounds
that the assistant trial counsel was arguing for an improper spillover. The
military judge sustained the objection and issued a spillover instruction.
    Assistant trial counsel later asked the members to compare the veracity
of Appellant’s out-of-court statements to the testimony of each victim. CDC
objected twice on grounds of the improper spillover effect of that comparison.
The military judge overruled the objection each time, but in response to each
objection, the military judge also issued an appropriate curative instruction
reminding the members that each offense must stand on its own, the burden
of proof is on the Government, only the members determine the credibility of
any evidence, and the argument of counsel is not evidence.
    Trial counsel, during rebuttal argument, then argued that each victim
was inconsistent in some part of her story to show that while people may
forget things or remember things differently, that does not mean they are
lying about everything or even about important facts. CDC objected, contend-
ing this argument invoked an improper spillover that would prejudice a
legitimate defense to one of the other charges. The military judge overruled
the objection but still issued a spillover instruction to the members.
    It has long been recognized that “where criminal intent involved in two
offenses is similar (although the offenses themselves are unrelated) and,
significantly where the proof of one would not be admissible to prove the
other, there is a serious danger that overwhelming proof of one will ‘spill over’
and prejudice a legitimate defense to another.” United States v. Haye, 29 M.J.
213, 215 (C.M.A. 1989). We do not have such a case before us. Notwithstand-
ing Appellant’s argument, discussing the fact that each victim’s testimony
was inconsistent in some way regarding the facts of her own sexual assault is
not proof of the accused’s criminal intent, as discussed in Haye. It is merely
an attempt to minimize and explain the inconsistencies in each victim’s
testimony as compared to the facts and prior statements regarding each



   10   Id.
   11   R. at 1497.




                                        7
                  United States v. Nichol, NMCCA No. 201800286
                               Opinion of the Court

victim’s own assault—not the assaults of the other two victims. Moreover,
pointing out minor inconsistencies in each victim’s testimony does not ad-
vance any fact in issue, but only reflects on each victim’s credibility. Except
for the first instance, where the military judge properly sustained the objec-
tion, we find no additional error, and we find that the military judge did not
abuse his discretion in overruling the second and third Defense objections.

         c. Disparaging the defense counsel
    It is “improper for a trial counsel to attempt to win favor with the mem-
bers by maligning defense counsel.” Fletcher, 62 M.J. at 181 (citations omit-
ted). Doing so detracts from the dignity of the proceedings and has the
potential to turn the court-martial into “a popularity contest” with the mem-
bers deciding the case, not on the facts and the law, but “based on which
lawyer they like better.” Id. In addition to “detract[ing] from the dignity of
judicial proceedings[,]” personal attacks can “cause the [trier of fact] to
believe that the defense’s characterization of the evidence should not be
trusted, and, therefore, that a finding of not guilty would be in conflict with
the facts of the case.” United States v. Xiong, 262 F.3d 672, 675 (7th Cir.
2001). This violates the core legal standard of criminal proceedings, that the
Government always bears the burden of proof to produce evidence on every
element and persuade the members of guilt beyond a reasonable doubt. See
United States v. Czekala, 42 M.J. 168, 170 (C.A.A.F. 1995); Rules for Courts-
Martial [R.C.M.] 920(e)(5)(D).
    Trial counsel disparaged the Defense by arguing that they introduced cer-
tain evidence “to embarrass, humiliate, and slut-shame” 12 Ms. DR. The
military judge sustained CDC’s objection to that statement and issued an
instruction to the members “that evidence has been introduced and it should
be considered by you only on the issue whether Ms. [DR] was truthful in her
statement [to] the sexual assault nurse examiner about her recent sexual
activity.” 13 We address the prejudicial effect of the misconduct below.

         d. Additional preserved error
   Appellant contends that both trial counsel offered obvious hearsay state-
ments in front of members without an evidentiary basis. During the Govern-
ment’s case-in-chief, assistant trial counsel called AD3 BB to testify and used
her statement to Naval Criminal Investigative Service [NCIS] special agents


   12   R. at 1545.
   13   Id.




                                         8
                  United States v. Nichol, NMCCA No. 201800286
                               Opinion of the Court

to refresh her recollection. On cross-examination, CDC impeached her also
using her previous statement to NCIS. On re-direct examination, assistant
trial counsel offered the statement into evidence in front of the members.
CDC objected and assistant trial counsel withdrew the offer.
   Trial counsel also called AO3 LR to testify about what AD3 BB told her
shortly after Appellant assaulted her. AO3 LR testified on direct and cross-
examination about her statement to NCIS. After one of the members asked to
see the statement, trial counsel offered it into evidence. CDC objected and
assistant trial counsel conceded, in an Article 39(a), UCMJ, hearing that the
Government had no legal basis to admit the statement.
    Appellant now argues that the attempts to admit obvious hearsay state-
ments constitute misconduct because trial counsel had no basis for admitting
the statements. We agree the type of unacceptable gamesmanship displayed
by the assistant trial counsel and his subordinate, trial counsel, in offering
obviously objectionable statements in front of members constitutes miscon-
duct, demands the attention of their leadership, and should never be accepted
in our courtrooms. However, even in light of the trial counsels’ motives, the
military judge made the correct ruling after hearing both parties in an Article
39(a), UCMJ session and issued an immediate instruction to the members
that the statement was not admitted into evidence and that it “cannot be held
against either side in this case.” 14 We find the military judge’s instruction
sufficient thus far in the trial to remedy any adverse consequence of the trial
counsels’ plainly inappropriate action.
    Our superior court has cautioned supervisors of litigators against condon-
ing improper prosecutor conduct, reminding us that prosecutors must seek
justice and not just convictions. 15 We add to this caution that military judges
must be quick to act sua sponte to stop such improper conduct—irrespective



   14   R. at 1068.
   15   As Judge Sparks reminds supervisors of litigators in United States v. Voorhees,
         the consistent flow of improper argument appeals to our Court sug-
         gests that those in supervisory positions overseeing junior judge ad-
         vocates are, whether intentionally or not, condoning this type of con-
         duct. As superior officers, these individuals should remind their sub-
         ordinate judge advocates of the importance of the prosecutor’s role
         within the military justice system and should counsel them to “seek
         justice, not merely to convict.”
79 M.J. 5, 15 (C.A.A.F. 2019) (quoting Fletcher, 62 M.J. at 182).




                                            9
                  United States v. Nichol, NMCCA No. 201800286
                               Opinion of the Court

of whether it appears intentional or inadvertent—as it occurs in their court-
rooms. In this case, offering two clearly inadmissible statements in front of
members was blatantly inappropriate. The military judge could have deliv-
ered a much stronger message to trial counsel and his supervisor - the assis-
tant trial counsel - in this case. He could also have seen to it that higher-level
supervisory counsel were notified of what was transpiring during the court-
martial, required their presence in the courtroom as observers before allow-
ing the trial to continue, and noted the taking of these or other prophylactic
measures on the record. We are firmly of the view that, far from being ques-
tioned by this Court, such strong exercise of judicial discretion in this particu-
lar area is paramount to a military judge’s duty to “exercise reasonable
control over the proceedings to promote the purposes of [the Rules for Courts-
Martial] and [the Manual for Courts-Martial].” R.C.M. 801(a)(3).

   2. Other error
    Appellant failed to object to other statements of trial counsel that he now
challenges. He asserts that trial counsel invoked an improper spillover
during opening statements, argued additional facts not in evidence, pre-
sumed Appellant to be guilty, shifted the burden to Appellant to prove his
innocence, called Appellant a liar, and commented on the fact that Appellant
did not testify. By not objecting at trial, Appellant forfeited these issues and
we review them for plain error. After carefully reviewing the record and the
pleadings of the parties, we find additional error only in trial counsel arguing
facts not in evidence.
    While arguing in closing that Appellant raped AOAN DB, the assistant
trial counsel stated, “Nobody wants to be the victim of a sexual assault at
their first command. It provides no benefit to them. In fact that harms a
career.” 16 The Defense did not object. However, as noted above, CDC did
object during rebuttal argument when trial counsel argued a similar theme
with respect to AOAN DB. Upon that objection, the military judge sustained
it and agreed, in front of the members, that those facts were not in evidence.
He further instructed the members that arguments of counsel are not evi-
dence.
   “[T]rial counsel [are] also prohibited from injecting into argument irrele-
vant matters, such as personal opinions and facts not in evidence.” United
States v. Schroder, 65 M.J. 49, 58 (C.A.A.F. 2007) (citations omitted). See also
Davis v. Zant, 36 F.3d 1538, 1548 n.15 (11th Cir. 1994) (discussing that


   16   R. at 1481.




                                       10
               United States v. Nichol, NMCCA No. 201800286
                            Opinion of the Court

despite argument not being evidence, counsel are still not allowed to argue
“material misstatements of fact.”). “[A] court-martial must reach a decision
based only on the facts in evidence.” Fletcher, 62 M.J. at 183 (citation omit-
ted). However, counsel are permitted to comment during argument “on
contemporary history or matters of common knowledge . . . [of] which [people]
in general have a common fund of experience and knowledge, through data
notoriously accepted by all.” Id. (citations and internal quotation marks
omitted).
   Even though CDC did not object, we agree that assistant trial counsel’s
comments were improper because we find no evidence in the record to sup-
port the assertions and they go well beyond general “matters of common
knowledge.” Id. Accordingly, we will test for prejudice below.

   3. Prejudice to Appellant
    Finding some error, we now turn to evaluate the potential prejudice by
examining the severity of the misconduct, the measures adopted to cure the
misconduct, and the weight of the evidence supporting the conviction. Fletch-
er, 62 M.J. at 184. The third Fletcher factor alone may be dispositive of the
issue. United States v. Sewell, 76 M.J. 14, 18-19 (C.A.A.F. 2017).
“[P]rosecutorial misconduct by a trial counsel will require reversal when the
trial counsel’s comments, taken as a whole, were so damaging that we cannot
be confident that the members convicted the appellant on the basis of the
evidence alone.” Id.
    We first look at the severity of the misconduct. “[T]he argument by a trial
counsel must be viewed within the context of the entire court-martial. The
focus of our inquiry should not be on words in isolation, but on the argument
as ‘viewed in context.’” Baer, 53 M.J. at 238 (C.A.A.F. 2000) (quoting United
States v. Young, 470 U.S. 1, 16 (1985)). Appellant’s trial lasted for seven days,
and Appellant alleges ten improper arguments and remarks during approxi-
mately two hours of combined opening statement, closing argument, and
rebuttal. Taken as a whole and in the context of a lengthy, contentious, and
emotionally-charged trial, both trial counsel’s improper arguments and
comments amounted to only a very small fraction of the trial. Offering clearly
objectionable hearsay statements before the members, asserting facts not in
evidence, and disparaging the Defense’s motives and intentions were the
most egregious of the trial counsels’ infractions, but each act occurred only
once or twice, and none supported a central theme of the Government’s case.
Although trial counsel’s comments were improper, we find that the miscon-
duct, considered in the proper context of the trial as a whole, was not unduly
severe.




                                       11
                  United States v. Nichol, NMCCA No. 201800286
                               Opinion of the Court

    Next, we look at whether there were any curative measures taken. Upon
objection by CDC, the military judge issued a curative instruction in all but
two of the objections he sustained. After trial counsel offered obviously
objectionable statements into evidence in front of the members, the military
judge sustained the Defense objection and issued an immediate instruction to
the members that the statement was not admitted into evidence and that it
“cannot be held against either side in this case.” 17 He also issued curative
instructions on two occasions where he overruled the Defense objections to
the government invoking a spillover. The military judge still issued spillover
curative instructions to ensure that the members understood the limitations
on the use of the evidence. The military judge also sustained the Defense
objection to trial counsel’s “slut shaming” comment and issued an immediate
curative instruction that the members should consider the evidence intro-
duced by the Defense only as it related to the relevant witness’s credibility. 18
As discussed above, although the military judge did not sua sponte undertake
any specific curative measures for the instance of trial counsel’s arguing facts
not in evidence during closing argument to which the Defense did not object,
he appropriately sustained the Defense objection on the same grounds during
rebuttal argument and correctly instructed the members that while counsel
may argue for reasonable inferences, those inferences must be supported by
facts in evidence. 19 Additionally, the military judge issued standard instruc-
tions to the members, to include “arguments by counsel are not evidence” and
to “base the determination of the issues in the case on the evidence as you
remember it and apply the law as I instruct you.” 20 “We presume, absent
contrary indications, that the panel followed the military judge’s instructions
with regard to the improper testimony and trial counsel’s arguments.” United
States v. Short, 77 M.J. 148, 151 (C.A.A.F. 2018) (citation and internal
quotation marks omitted). Trial counsels’ conduct was certainly inappropri-
ate but it occurred in a few different instances spread throughout the trial. At
this point in the trial, the misconduct was not so egregious that the military
judge’s curative instructions were inadequate. Finding no evidence to the
contrary, we find that the members followed the military judge’s instructions.




   17   R. at 1068.
   18   R. at 1545.
   19   R. at 1550.
   20   R. at 1446.




                                       12
               United States v. Nichol, NMCCA No. 201800286
                            Opinion of the Court

    Finally, we consider the strength of the evidence against Appellant. In
United States v. Sewell, the Court of Appeals for the Armed Forces [CAAF]
found that the weight of the evidence supporting the appellant’s conviction
alone was strong enough to establish a lack of prejudice. 76 M.J. at 18. Here,
the Government produced substantial evidence of Appellant’s guilt. The
evidence against Appellant included testimony by each of the three victims; a
recorded telephone call between Appellant and Ms. DR a few days after she
was raped; DNA analysis that confirmed Appellant had ejaculated in Ms.
DR’s vagina even though he told her that he used a condom; testimony that
Appellant had no prior sexual or romantic interaction with any of the three
victims; testimony that each victim reported Appellant’s misconduct to a
friend; and Appellant’s own statements exhibiting consciousness of guilt.
    Considering the isolated and brief nature, albeit blatant, of the trial coun-
sel’s improper conduct spread throughout the seven day trial, coupled with
the strength of the Government’s case relating to each of the victims, we find
that Appellant was not prejudiced. Although we have some concerns regard-
ing the fairness and integrity of this trial, considering the entire record we
are convinced that the members convicted Appellant based on the over-
whelming evidence of his guilt.

B. Prior Consistent Statements
    Prior consistent statements are admissible if the declarant testifies, is
subject to cross-examination, and the statements are offered to (1) rebut an
express or implied charge that the declarant recently fabricated it, or acted
from a recent improper influence, or motive in so testifying; or (2) to rehabili-
tate the declarant’s credibility as a witness when attacked on another
ground. Mil. R. Evid. 801(d)(1)(B).
    We review a military judge’s admission or exclusion of evidence for an
abuse of discretion. United States v. Solomon, 72 M.J. 176, 179 (C.A.A.F.
2013) (citation omitted). “The abuse of discretion standard is a strict one,
calling for more than a mere difference of opinion. The challenged action
must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous.”
United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F. 2010) (citations and internal
quotation marks omitted).
    Relevant evidence, as defined by Military Rule of Evidence [Mil. R. Evid.]
401, may be excluded by the military judge “if its probative value is substan-
tially outweighed by a danger of one or more of the following: unfair preju-
dice, confusing the issues, misleading the members, undue delay, wasting
time, or needlessly presenting cumulative evidence.” Mil. R. Evid. 403. So
long as the military judge conducts a proper balancing test, the ruling will
not be overturned unless there is a clear abuse of discretion. United States v.


                                       13
                  United States v. Nichol, NMCCA No. 201800286
                               Opinion of the Court

Manns, 54 M.J. 164, 166 (C.A.A.F. 2000) (citation and internal quotation
marks omitted). We owe less deference to the military judge who fails to
articulate a Mil. R. Evid. 403 balancing analysis on the record, and no defer-
ence to a ruling in which the Mil. R. Evid. 403 analysis is altogether absent.
Id.

   1. AOAN DB’s prior consistent statement is admissible
    At trial, the Government offered, over Defense objection, the testimony of
AOAN DB’s boyfriend, who stated AOAN DB told him that “Nichol had raped
her.” 21 Appellant argues that AOAN DB’s prior consistent statement was
improperly admitted because it (1) did not precede her motive to fabricate
under Mil. R. Evid. 801(d)(1)(B)(i), and (2) did not rehabilitate her credibility
under Mil. R. Evid. 801(d)(1)(B)(ii). Appellant contends AOAN DB knew her
boyfriend would be upset if he knew she was having sex with Appellant.
Appellant avers that this was the only motive to lie that CDC argued and this
motive preceded AOAN DB’s statement to her boyfriend that Appellant raped
her; therefore, the statement does not qualify for admission as a prior con-
sistent statement.
    Here, however, the facts are not so simple, and where “multiple motives
to fabricate or multiple improper influences are asserted, the statement need
not precede all such motives or inferences.” United States v. Allison, 49 M.J.
54, 57 (C.A.A.F. 1998). After AOAN DB testified, CDC cross-examined her
and impeached her by omission for not mentioning to NCIS that Appellant’s
ejaculate ran down her leg after he raped her, whether she and Appellant
had ever slept in the same bed before, the number of times she had visited
Appellant’s house, and the fact that her boyfriend would have been upset if
he found out she had consensual sex with Appellant. In addition, CDC also
suggested that AOAN DB’s memory was influenced by trial counsel when he
asked:
         Okay, now who helped you make these memories . . . so it was
         just yourself. So, in other words, at no time did the trial coun-
         sel say to you, “wait a minute, you know, you told NCIS that
         you were thinking about going to his house?” 22




   21   R. at 848-49.
   22   R. at 754-55.




                                        14
                     United States v. Nichol, NMCCA No. 201800286
                                  Opinion of the Court

After closely examining the record, notwithstanding Appellant’s argument,
we find that CDC clearly implied that AOAN DB’s testimony was coached or
influenced by trial counsel.
   The military judge admitted AOAN DB’s statement to her boyfriend be-
cause there was
         testimony back and forth about recent changes in memory and
         recent developments in changes in her testimony after talking
         [to] trial counsel, her [Victims’ Legal Counsel] or [Appellant’s
         roommate] or anyone else who may have given her—who may
         have had an impact in fabricating testimony or given her re-
         cently improper influence in her testimony. Additionally, it
         would be offered to rehabilitate the declarant’s credibility as
         she did testify as a concern about flirtatious behavior or mis-
         take of fact as to consent or that sort of thing. So, to the extent
         that credibility was attacked on those grounds . . . it would be
         proper under 801 (d)(1)(1)(b)(2) [sic] as well. 23
    While we agree with the military judge that AOAN DB’s prior consistent
statement could be used for some purposes under Mil. R. Evid.
801(d)(1)(B)(ii), we find this rationale unnecessary because the prior con-
sistent statement is clearly admissible under Mil. R. Evid. 801(d)(1)(B)(i) to
rebut the implied charge that AOAN DB’s testimony was recently influenced
by trial counsel.
    Having determined that the prior consistent statement was admissible
under Mil. R. Evid. 801(d)(1)(B)(i), we next analyze whether it was properly
admitted under Mil. R. Evid. 403. The military judge conducted a Mil. R.
Evid. 403 balancing test with respect to AOAN DB’s statement to her boy-
friend, but he did not articulate his reasoning on the record.
    AOAN DB’s statement to her boyfriend was very brief and consisted of
just a few words. It occurred in the summer of 2015, days to possibly months
after she was raped. AOAN DB’s boyfriend does not remember much detail
other than her demeanor as she reported that Appellant raped her. In light of
the Defense implication that AOAN DB had been influenced by trial counsel,
the statement was significant to show that AOAN DB’s report to her boy-
friend had been made closer in time to the rape, and prior to her interaction
with trial counsel. We find the probative weight of the statement made by
AOAN DB to her boyfriend was not substantially outweighed by the danger


   23   R. at 844.




                                         15
                  United States v. Nichol, NMCCA No. 201800286
                               Opinion of the Court

of unfair prejudice, confusing the issues, misleading the members, undue
delay, wasting time, or needlessly presenting cumulative evidence. Mil. R.
Evid. 403.
   AOAN DB’s prior consistent statement was admissible under Mil. R.
Evid. 801(d)(1)(B)(i) and the military judge did not abuse his discretion when
he admitted it into evidence.

    2. Appellant waived any claim of error regarding Ms. DR’s prior consistent
statement
    Appellant argues that it was plain error for the military judge to admit
Ms. DR’s out-of-court statement to her friend at work as a prior consistent
statement. We find that he waived any claim of error relating to admission of
the statement.
    While we review a military judge’s admission or exclusion of evidence for
an abuse of discretion, Solomon, 72 M.J. at 179 (citation omitted), when an
appellant does not raise an objection to the admission of evidence during
trial, this court first determines whether the appellant waived or forfeited
that objection. United States v. Jones, 78 M.J. 37, 44 (C.A.A.F. 2018) (citation
omitted).
    On direct examination, without defense objection, Ms. DR testified that
she told a friend at work, “I waken [sic] up on his sofa with no clothes on and
that I thought—the term that I used I thought he had Bill Cosby’d me. That’s
what I said to her.” 24 Prior to issuing his findings instructions to the mem-
bers, the military judge summarized an R.C.M. 802 conference on the record,
stating that the parties discussed the prior consistent statements of each
victim and the proposed instructions. The military judge stated that he had
initially “omitted prior consistent statements from [AOAN DB] and [Ms. DR]
and I believe, Defense, you concurred that—or did not object to that being
added to that section?” 25 CDC responded, “Yes, sir.” 26 The military judge then
explained that the three victims all made prior consistent statements and he




   24   R. at 1103.
   25   R. at 1434.
   26   Id.




                                      16
                  United States v. Nichol, NMCCA No. 201800286
                               Opinion of the Court

would instruct the members regarding the statements. 27 He then asked CDC
if he had any objection, and CDC responded, “No, sir.” 28
    While CDC’s mere failure to object during the trial counsel’s direct exam-
ination of Ms. DR may constitute forfeiture that we would ordinarily review
for plain error, in this case any issue regarding the admission and use of the
prior statement was waived during discussion of prior consistent statements
and the findings instructions regarding those prior consistent statements. At
that point, CDC had another opportunity to lodge an objection to the prior
consistent statement evidence and to seek a limiting instruction on how the
evidence could be used by the members. At the very least, that would have
forced trial counsel to articulate the basis for admission and required the
military judge to put his reasoning on the record. Instead, CDC waived the
issue for a third time. We find that CDC unequivocally waived the issue
when he affirmed the military judge’s R.C.M. 802 summary that CDC either
had no objection to, or concurred with, including reference to Ms. DR’s prior
consistent statement in the findings instructions. The waiver was again
confirmed when CDC stated he had no objection to the prior consistent
statement instruction regarding all three victims. See United States v. Davis,
79 M.J. 329, 331 (C.A.A.F. 2020) (quoting United States v. Campos, 67 M.J.
330, 332 (C.A.A.F. 2009)) (finding that affirmatively declining to object to the
military judge’s instructions waives the claim). 29

C. Excited Utterance
    AD3 BB testified that, immediately after escaping from Appellant’s grasp,
she walked down the hall and texted AM3 NC that Appellant had “tried to
take advantage of” her. AM3 NC testified that he observed AD3 BB “very
shortly after” receiving her text. He noticed that she was “shaken up,”
“scared,” and “different.” 30



   27   R. at 1435.
   28   Id.
   29 Even if we did not find a clear waiver of the underlying evidentiary issue by
virtue of the CDC’s repeated, verbalized acceptance of the prior consistent statement
and proposed findings instructions, we would nevertheless find that Appellant
suffered no prejudice under a plain error analysis, as Ms. DR made the very same
comment during her post-rape text message exchanges with Appellant, which were
also admitted into evidence without Defense objection. See Pros. Ex. 6 at 8; R. at
1080-81.
   30   R. at 1001.




                                         17
               United States v. Nichol, NMCCA No. 201800286
                            Opinion of the Court

   At trial, over Defense objection, AM3 NC testified that AD3 BB told him
Appellant “tried to take advantage of her and she said no.” 31 Here, as at trial,
Appellant asserts this was not an excited utterance and that the military
judge erroneously admitted it as such.
    We review the military judge’s decision to admit statements “under the
excited utterance exception to the rule against hearsay” for an abuse of
discretion. United States v. Feltham, 58 M.J. 470, 474 (C.A.A.F. 2003). The
abuse of discretion standard requires “more than a mere difference of opin-
ion”—the decision must be “arbitrary, fanciful, clearly unreasonable, or
clearly erroneous.” United States v. Collier, 67 M.J. 347, 353 (C.A.A.F. 2009)
(citations and internal quotation marks omitted).
    “A statement relating to a startling event or condition made while the de-
clarant was under the stress of excitement that it caused” is admissible as an
exception to the general prohibition on hearsay. Mil. R. Evid. 803(2). “The
implicit premise [of the exception] is that a person who reacts ‘to a startling
event or condition’ while ‘under the stress of excitement caused’ thereby will
speak truthfully because of a lack of opportunity to fabricate.” United States
v. Jones, 30 M.J. 127, 129 (C.M.A. 1990). The CAAF has adopted a three-part
test to determine whether a hearsay statement qualifies as an excited utter-
ance: “(1) the statement relates to a startling event, (2) the declarant makes
the statement while under the stress of excitement caused by the startling
event, and (3) the statement is spontaneous, excited or impulsive rather than
the product of reflection and deliberation.” United States v. Donaldson, 58
M.J. 477, 482 (C.A.A.F. 2003) (citations and internal quotation marks omit-
ted).
    Appellant does not assert that a sexual assault would not constitute a
startling event. Nor does he dispute that AD3 BB’s statement made to AM3
NC that Appellant “tried to take advantage of” her related to the sexual
assault. Instead, Appellant argues that AD3 BB was not under the stress of a
startling event when she sent the text to AM3 NC. Appellant places particu-
lar emphasis on the time lag between the time the text message was sent and
received and the time when AM3 NC actually observed AD3 BB’s demeanor.
He asserts that because AM3 NC did not see AD3 BB for some indeterminate
amount of time after the utterance was made, AM3 NC’s testimony fails to
establish a proper foundation for the excited utterance exception. We disa-
gree.



   31   Id.




                                       18
                  United States v. Nichol, NMCCA No. 201800286
                               Opinion of the Court

    Although “a lapse of time between the event and the utterance creates a
strong presumption against admissibility,” Jones, 30 M.J. at 128, “the lapse
of any particular period of time, is not the focus of the excited utterance rule.
The critical determination is whether the declarant was under the stress or
excitement caused by the startling event.” Feltham, 58 M.J. at 475 (citation
omitted). “A lapse of time between a startling event and an utterance, while a
factor in determining whether the declarant was under the stress of excite-
ment caused by the event, is not dispositive of that issue.” Donaldson, 58 M.J.
at 483 (citations omitted). Likewise, we conclude that in the instance of an
excited utterance conveyed via text message, a lapse of time between the
transmission of the message and the receiver’s observation of the declarant’s
demeanor, is a factor to be considered but also is not dispositive of the issue
of whether the declarant was excited.
    Based on the record before us, we are convinced that there was sufficient
evidence for the military judge to conclude that AD3 BB was still under the
stress of excitement caused by the sexual assault when she texted AM3 NC
and was “very shortly” thereafter observed by AM3 NC. Her text message
statement to AM3 NC—that Appellant “tried to take advantage of” 32 her—
was not the result of reflection or fabrication, and her demeanor as observed
by AM3 NC soon afterward was not affected by any intervening incident. The
military judge applied the proper legal test to evaluate the statement, and,
after hearing and evaluating the evidence, properly determined that the facts
satisfied the test. In so doing, he did not abuse his discretion in admitting
AD3 BB’s statement to AM3 NC as an excited utterance.

D. Demeanor Evidence
   Appellant next asserts that the military judge erred when he admitted
evidence, over Defense objection, of the victims’ demeanor when they report-
ed to friends what Appellant had done to them. Appellant argues that the
demeanor evidence was not relevant and was unfairly prejudicial.
    We review a military judge’s evidentiary rulings for an abuse of discre-
tion. United States v. Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010). The military
judge may exclude relevant evidence after conducting a Mil. R. Evid. 403
balancing test. In this instance, there is no indication that the military judge
considered Mil. R. Evid. 403 before ruling on the motion so we examine the
record for ourselves. See Manns, 54 M.J. at 166.




   32   R. at 1003.




                                       19
                  United States v. Nichol, NMCCA No. 201800286
                               Opinion of the Court

    “Lay opinion testimony is only admissible if (1) the opinion is rationally
based on the witness’s perception; and (2) the opinion is helpful either to an
understanding of the testimony of the witness on the stand or to the determi-
nation of a fact in issue.” United States v. Lopez, 76 M.J. 151, 156 (C.A.A.F.
2017) (citations and internal quotation marks omitted). However, “[s]o long
as the opinion [of a lay witness] is based upon personal observation and is
relevant, [the witness] may testify about another’s emotional state. No
unique ability or specialized training is required to form such opinions.”
United States v. Patrick, 78 M.J. 687, 712 (N-M. Ct. Crim. App. 2018) (quot-
ing United States v. Roberson, 65 M.J. 43, 47 (C.A.A.F. 2007).
    AOAN DB’s boyfriend and two friends of AD3 BB provided the lay opinion
testimony at issue. During an Article 39(a), UCMJ, hearing, the Defense
raised a motion in limine to prevent trial counsel from eliciting the emotional
state of the victims as they were reporting what Appellant had done to them.
The military judge denied the motion, finding the demeanor testimony
admissible and relevant as to credibility.
    AOAN DB’s boyfriend testified that in the summer of 2015, days to possi-
bly months after her rape, she told him that Appellant had raped her. He
described her as “broken down” and said she “could barely talk” when she
told him Appellant had raped her. As discussed above, the statement itself
was admitted into evidence as a prior consistent statement.
    AM3 NC testified that AD3 BB texted him that Appellant “tried to take
advantage of her. She said no but he was too strong.” 33 When he next saw her
after a “very short amount” of time, she looked “shaken up scared.” 34 As
discussed above, the statement itself was admitted into evidence as an
excited utterance. Another friend of AD3 BB’s also testified that AD3 BB told
her about the assault on the Monday following the party and when she
described what Appellant had done to her, she “seemed shocked.” This
statement was made without objection from CDC.
   The demeanor evidence of each of the lay witnesses is relevant, probative,
and admissible because it was based on their personal observation of either
AOAN DB or AD3 BB; it would be helpful to the members in understanding
the witness’s testimony; it would be helpful to the members in assessing the
credibility of AOAN DB and D3 BB; and it tended to corroborate that a
traumatic event had occurred to AOAN DB and AD3 BB. While the demeanor



   33   Id.
   34   R. at 1001.




                                      20
                     United States v. Nichol, NMCCA No. 201800286
                                  Opinion of the Court

evidence was not favorable to Appellant, we find no support in the record for
the contention that the probative weight of the evidence was outweighed by
any of the Mil. R. Evid. 403 factors. Accordingly, we find that the military
judge did not abuse his discretion when he admitted lay opinion evidence of
the victims’ demeanor.

E. Legal and Factual Sufficiency
    Appellant asserts the evidence is legally and factually insufficient to sup-
port his convictions with respect to each of the three victims. Article 66(c),
UCMJ; United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). To
determine legal sufficiency, we ask whether, considering the evidence in the
light most favorable to the prosecution, a reasonable fact-finder could have
found all the essential elements beyond a reasonable doubt. United States v.
Turner, 25 M.J. 324, 324-25 (C.M.A. 1987) (citing Jackson v. Virginia, 443
U.S. 307, 319 (1979)). In conducting this analysis, we must “draw every
reasonable inference from the evidence of record in favor of the prosecution.”
United States v. Gutierrez, 74 M.J. 61, 65 (C.A.A.F. 2015). In evaluating
factual sufficiency, we determine whether, after weighing the evidence in the
record of trial and making allowances for not having observed the witnesses,
we are convinced of Appellant’s guilt beyond a reasonable doubt. Turner, 25
M.J. at 325. In conducting this unique appellate function, we take “a fresh,
impartial look at the evidence,” applying “neither a presumption of innocence
nor a presumption of guilt” to “make [our] own independent determination as
to whether the evidence constitutes proof of each required element beyond a
reasonable doubt.” Washington, 57 M.J. at 399. Proof beyond a “[r]easonable
doubt, however, does not mean the evidence must be free from conflict.”
United States v. Rankin, 63 M.J. 552, 557 (N-M. Ct. Crim. App. 2006).
    To support Appellant’s conviction for rape with respect to AOAN DB, the
Government needed to prove beyond a reasonable doubt that: (1) Appellant
committed a sexual act upon AOAN DB, to wit: penetration of her vulva with
his penis; and (2) that he did so by unlawful force, to wit: prying her closed
legs open with his hands.
    AOAN DB testified before the members, describing in detail Appellant’s
conduct on the night of 23 May 2015. Appellant twice entered the room where
she was sleeping and offered AOAN DB wine, which she declined both times.
Appellant then re-entered the room, pulled the blankets off of AOAN DB and
got on top of her. She testified that Appellant said, “I know you want this” 35


   35   R. at 707.




                                         21
                     United States v. Nichol, NMCCA No. 201800286
                                  Opinion of the Court

two times despite AOAN DB telling him to stop. She attempted to use her
phone to call for help, but Appellant grabbed it out of her hand and threw it
to the side of the bed. AOAN DB testified that she continued to resist and
curled up in the fetal position but Appellant pried her legs open and inserted
his penis into her vagina. She attempted to call for Appellant’s roommate but
he was playing video games in a different room. When Appellant had fin-
ished, he tossed her to the side and she got up and left. She found Appellant’s
roommate and demanded that he take her home. Later that summer, AOAN
DB told her boyfriend that Appellant raped her. Her boyfriend described her
as “broken down” 36 and stated that she “could barely talk” 37 while describing
the rape. Appellant’s roommate also confirmed that he had headphones on
while playing video games and did not hear anything related to the rape. He
also confirmed that he took AOAN DB home later that night after she found
him playing video games.
    To support a conviction for sexually assaulting AD3 BB, the Government
was required to prove beyond a reasonable doubt that: (1) Appellant commit-
ted a sexual act upon AD3 BB; and (2) that he did so by causing bodily harm,
to wit: penetration of her vulva with his finger without her consent.
    AD3 BB testified before the members describing Appellant’s assault on
her at the party on 12 June 2015. She testified that she had rebuffed Appel-
lant’s advances at work and that they had no prior romantic or sexual en-
counters. At the party, Appellant asked to speak to AD3 BB alone and led her
to a secluded spot behind a stairwell. Appellant then attempted to kiss AD3
BB, put his hand in her pants, and tried to remove them. Appellant was able
to penetrate AD3 BB’s vagina with his fingers several times. AD3 BB said,
“No” repeatedly and attempted to resist, finally getting free when Appellant
stopped because he heard voices nearby. AD3 BB immediately texted her
friend, AM3 NC who was also at the party, that Appellant had “tried to take
advantage of her . . . she said no but he was too strong.” 38 AM3 NC testified
that within a short period of time after receiving the text, he saw AD3 BB
and noticed that she was “different . . . almost shaken up, scared.” 39 Appel-
lant’s roommate also testified that Appellant appeared “frantic” and “shook”
at the party and told him: “Bro, you are not going to believe this. [AD3 BB]



   36   R. at 848.
   37   R. at 849.
   38   R. at 1003.
   39   R. at 1001.




                                         22
                  United States v. Nichol, NMCCA No. 201800286
                               Opinion of the Court

grabbed my hand and put it down her pants and said you are going to catch a
SAPR case.” 40 The Government called AD3 BB’s good friend to testify that
AD3 BB reported the details of her assault to her on the Monday following
the party.
    To support Appellant’s conviction for rape with respect to Ms. DR, the
Government needed to prove beyond a reasonable doubt that: (1) Appellant
committed a sexual act upon Ms. DR by causing penetration of her vulva with
his penis; (2) that he did so by administering to her, without her knowledge
or permission, a drug; and (3) he thereby substantially impaired her ability to
appraise and control her conduct.
    Ms. DR testified before the members, explaining the circumstances sur-
rounding the evening on which Appellant raped her. She described how
Appellant showed her a video of his friends who were high on Xanax and then
showed her a Xanax pill. Ms. DR explained that after she went to the bath-
room, she returned to her drink and then began to feel “weird,” like she was
“floating [and] . . . the room was spinning.” 41 She testified that she never
experienced these symptoms with alcohol before. Ms. DR testified that she
exchanged text messages with Appellant the following day and he denied
that anything happened. Later that day, Ms. DR and Appellant talked on a
video call where Appellant initially denied having sex but later admitted that
they had sex but that he used a condom. Ms. DR then reported the sexual
assault the Virginia Beach Police Department. A telephone call between
Appellant and Ms. DR was recorded within days after the rape and was
played for the members. During this recording, Ms. DR confronted Appellant
about the video of his friends intoxicated on Xanax and showing her the
Xanax pill. Appellant explained what happened and what led to the two of
them having sex. He stated that he used a condom but DNA evidence later
showed that was a lie, demonstrating his consciousness of guilt. Finally, a
toxicologist testified to explain why Xanax might not have been detectable in
Ms. DR’s urine by the time she was tested.
   Ms. DR did have significant loss of memory on the night she was raped.
As Appellant argues, there is no direct evidence of Xanax in her system and
no Xanax was found in the possession of Appellant. While these facts do
make this issue a much closer call, the members heard those same arguments
and weighed the same circumstantial evidence and drew the inference that



   40   R. at 1034.
   41   R. at 1095.




                                      23
              United States v. Nichol, NMCCA No. 201800286
                           Opinion of the Court

Ms. DR was drugged by Appellant before he had sex with her. In addition,
during the recorded telephone call, Appellant does not deny or dispute that
he showed Ms. DR the video of his friends high on Xanax and showed her the
Xanax pill. This corroborates Ms. DR’s testimony that Appellant had Xanax;
he had the opportunity to put it in her drink; she later felt “weird” like she
was “floating” and everything was “spinning;” and the next thing she remem-
bered was waking up in the morning, disoriented and naked on the couch.
Moreover, after Ms. DR confronts Appellant regarding the Xanax video and
she accuses him of drugging her, Appellant offers to pay for a drug test and
suggests she be tested for several drugs, but does not suggest Xanax.
   After carefully reviewing the record of trial and considering the evidence
in the light most favorable to the prosecution, we are persuaded that a
reasonable fact-finder could have found all the essential elements required to
convict Appellant beyond a reasonable doubt of rape of AOAN DB, sexual
assault of AD3 BB, and rape of Ms. DR. Furthermore, after weighing the
evidence in the record of trial and recognizing that we did not personally see
the witnesses’ testimony, we too are convinced beyond a reasonable doubt of
Appellant’s guilt.

F. Sentencing Errors
    Finally, Appellant contends that a sentence rehearing is warranted due to
trial counsel’s improper sentencing argument and other errors, including that
the sentence was inappropriately severe, that he suffered illegal pretrial
punishment, and that the military judge erred by not allowing Appellant to
rebut a victim impact statement with a video showing the victim’s drug use.
We find reversible error in the Government’s sentencing argument and do not
address the remaining AOEs.
    Appellant claims that trial counsel’s sentencing argument was so riddled
with prosecutorial misconduct that a sentence rehearing must be ordered. He
also specifically contends that trial counsel improperly commented on Appel-
lant’s exercise of his constitutionally protected rights when he argued that
Appellant forced the victims to be in court. When a proper objection to a
comment is made at trial, the issue is preserved and we review for prejudicial
error. Fletcher, 62 M.J. at 179 (citing Art. 59, UCMJ).
    Trial counsel’s sentencing argument was brief and lasted less than 18
minutes and is transcribed in less than 10 pages. During the argument, CDC
objected 10 times and was only overruled twice. While the serious nature of
the charges of which Appellant stands convicted are both repetitive and
egregious, trial counsel’s sentencing argument, wherein he repeatedly makes
objectionable comments to the members, is far from that contemplated by
professional standards. As the Supreme Court stated long ago:


                                     24
                United States v. Nichol, NMCCA No. 201800286
                             Opinion of the Court

        The [prosecutor] is the representative not of an ordinary party
        to a controversy, but of a sovereignty whose obligation to gov-
        ern impartially is as compelling as its obligation to govern at
        all; and whose interest, therefore, in a criminal prosecution is
        not that it shall win a case, but that justice shall be done. As
        such, he is in a peculiar and very definite sense the servant of
        the law, the twofold aim of which is that guilt shall not escape
        or innocence suffer. He may prosecute with earnestness and
        vigor—indeed, he should do so. But, while he may strike hard
        blows, he is not at liberty to strike foul ones. It is as much his
        duty to refrain from improper methods calculated to produce a
        wrongful conviction as it is to use every legitimate means to
        bring about a just one.
Berger v. United States, 295 U.S. 78, 88 (1935), quoted in United States v.
Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005).
    These principles demand that prosecutors steer clear of any improper ar-
guments that may produce a wrongful sentence. See Baer, 53 M.J. at 237. In
this regard, while “[i]t is appropriate for trial counsel—who is charged with
being a zealous advocate for the Government—to argue the evidence of
record, as well as all reasonable inferences fairly derived from such evidence,”
he or she must remain ever mindful of not “crossing the line and wandering
dangerously into the realm of impermissible argument.” Id. at 237-38 (cita-
tions omitted).
    Improper sentencing arguments are analyzed for prejudice under the
Fletcher factors—the severity of the misconduct, the measures adopted to
cure the misconduct, and the weight of the evidence supporting the sen-
tence—to determine “whether trial counsel’s comments, taken as whole, were
so damaging that we cannot be confident that [Appellant] was sentenced on
the basis of the evidence alone.” United States v. Halpin, 71 M.J. 477, 480
(C.A.A.F. 2013) (citation and internal quotation marks omitted). 42 In this
analysis, “the argument by a trial counsel must be viewed within the context



   42  While the third Fletcher factor typically examines the weight of the evidence
supporting the conviction, in the sentencing context this factor addresses the weight
of the evidence supporting the “adjudged and approved sentence.” Halpin, 71 M.J. at
480. Thus, in this context, the third factor would generally look at not only the
evidence adduced on the merits, but also the evidence submitted by the parties
during the presentencing proceedings as well as any information submitted to the
sentencing authority via victim impact statements.




                                         25
               United States v. Nichol, NMCCA No. 201800286
                            Opinion of the Court

of the entire court-martial. The focus of the inquiry should not be on words in
isolation, but on the argument as viewed in context.” Baer, 53 M.J. at 238
(citations and internal quotation marks omitted). In other words, “we look at
the cumulative impact of any prosecutorial misconduct on the accused’s
substantial rights and the fairness and integrity of his trial.” Fletcher, 62
M.J. at 184. “[I]t is not the number of legal norms violated but the impact of
those violations on the trial which determines the appropriate remedy for
prosecutorial misconduct.” Meek, 44 M.J. at 6.
    As the analysis is focused ultimately on effect rather than cause, the pro-
hibition against impermissible sentencing arguments, as with other forms of
prosecutorial misconduct, applies whether the misconduct is inadvertent or
intentional. We must first determine whether the prosecutorial misconduct at
issue “actually impacted on a substantial right of an accused (i.e., resulted in
prejudice),” and if so, then “consider[] the trial record as a whole to determine
whether such a right’s violation was harmless under all the facts of a particu-
lar case.” Id. at 5 (citations omitted). In addition, if an error is constitutional
in nature, “rather than the probability that the outcome would have been
different, courts must be confident that there was no reasonable possibility
that the error might have contributed to the [outcome].” United States v.
Tovarchavez, 78 M.J. 458, 462 n.5 (C.A.A.F. 2019) (quoting Chapman v.
California, 386 U.S. 18, 24 (1967)) (emphasis in original).
   As to the first Fletcher factor, the errors at issue here—whether inadvert-
ent or intentional—were both severe and pervasive. Our superior court has
provided several indicators to consider in this regard:
       (1) the raw numbers—the instances of misconduct as compared
       to the overall length of the argument, (2) whether the miscon-
       duct was confined to the trial counsel’s rebuttal or spread
       throughout the findings argument or the case as a whole; (3)
       the length of the trial; (4) the length of the panel’s delibera-
       tions, and (5) whether the trial counsel abided by any rulings
       from the military judge.
Fletcher, 62 M.J. at 184. Here, the 18-minute sentencing argument drew ten
objections, all but two of which were sustained. The improper comments were
peppered throughout the argument and included, among other things, im-
properly advising the members of the maximum sentences that could be
imposed for each of the offenses Appellant was convicted of; arguing the only
reason Appellant had not committed additional sexual offenses leading up to




                                        26
                United States v. Nichol, NMCCA No. 201800286
                             Opinion of the Court

his trial was because he had been placed in pretrial confinement; 43 arguing
facts not in evidence (some of which the Government had already drawn
sustained objections for during its findings arguments); and arguing the
victims had not participated in the court-martial by any choice of their own,
but were forced to do so by Appellant. After a seven-day trial, the members
deliberated for just over an hour before adjudging a sentence that included 25
years’ confinement.
    Second, the measures adopted to cure the misconduct, while not unrea-
sonable when analyzed in isolation, were ultimately insufficient to cure the
cumulative effect of the Government’s misconduct as a whole. Generally, “[a]
curative instruction is the preferred remedy for correcting error when the
court members have heard inadmissible evidence, as long as the instruction
is adequate to avoid prejudice to the accused.” United States v. Taylor, 53
M.J. 195, 198 (C.A.A.F. 2000) (dealing with a trial counsel devoting much of
his opening statement to discussing inadmissible evidence) (citation omitted).
Absent evidence to the contrary, we presume the members follow such
instructions. Sewell, 76 M.J. at 19. However, the power of standard curative
instructions to “unring” the bell of objectionable argument or other trial
errors is not unlimited. United States v. Diaz, 59 M.J. 79, 93 (C.A.A.F. 2003);
United States v. Armstrong, 53 M.J. 76, 82 (C.A.A.F. 2000). There are times
when more concerted, even aggressive, use of judicial discretion is necessary
to “exercise reasonable control over the proceedings to promote the purposes
of [the Rules for Courts-Martial] and [the Manual for Courts-Martial].”
R.C.M. 801(a)(3).
   After a thorough review of the record, we conclude that “the military
judge’s instructions did not provide the panel members with ‘a sufficient
sense of judicial disapproval of both content and circumstance needed to
dispel the harm in the core of [trial counsel’s improper arguments].” Sewell,
76 M.J. at 21 (Ohlson, J., concurring in part and dissenting in part) (quoting
United States v. Simtob, 901 F.2d 799, 806 (9th Cir. 1990)). The military



    43 And when the Defense objected, the trial counsel’s initial response was to ask,
in front of the members, “It’s defense counsel’s position that it [pretrial confinement]
has not stopped him [Appellant] from doing that [committing more sexual assaults
and rapes]?” R. at 1706. Such jocularity is the sort of gamesmanship that military
judges must assiduously guard against, lest criminal trials devolve into mere popu-
larity contests between attorneys that “detract[] from dignity and solemn purpose of
the court-martial proceedings.” Fletcher, 62 M.J. at 182. The trial counsel’s remark
drew no special rebuke here, although the underlying improper argument eventually
resulted in a curative instruction.




                                          27
               United States v. Nichol, NMCCA No. 201800286
                            Opinion of the Court

judge correctly sustained the Defense’s objections and then addressed the
issues in some fashion with the members, including instructing them on four
occasions to disregard the trial counsel’s argument. But as our superior court
has reminded us, “[t]he judge is not a mere figurehead or simply an umpire in
a contest between the Government and accused.” United States v. Watt, 50
M.J. 102, 105 (C.A.A.F. 1999) (citation and internal quotations omitted). By
the time the trial had reached the sentencing phase, the Government had
already drawn a variety of sustained objections for, among other things,
arguing facts not in evidence during its summation (including some of the
same facts the trial counsel then sought to re-argue in sentencing) and
making disparaging remarks about CDC’s representation of Appellant. In
light of the volume and weight of impermissible comments, as the Govern-
ment’s sentencing argument progressed, it became necessary for the military
judge to take more aggressive measures in exercising his “sua sponte duty to
insure that [the] accused receive[d] a fair trial,” Watt, 50 M.J. at 105 (citation
and internal quotations omitted), whether by calling a recess to address and
stop the recurrent errors in an R.C.M. 802 conference, taking steps to engage
more senior prosecutorial leadership in the court-martial, or even at some
point simply declaring enough is enough and cutting off all further argument.
We recognize that if and when to take such proactive action is one of the most
difficult decisions a trial judge faces, and that the decision must be made in
real time, without the benefit of appellate hindsight. Nevertheless, when a
military judge finds himself sustaining objection after objection for prosecuto-
rial misconduct, it is incumbent upon the judge to ensure that the measures
next taken effectively halt, if not cure, the accruing prejudice.
    Here, Appellant was facing a maximum sentence of life without the possi-
bility of parole for egregious sexual offenses against three victims, each of
whom had provided victim impact statements about the harm he had caused
them; the members had already improperly heard what maximum sentence
could be imposed for the offense against each victim; the Defense counsel had
been improperly assailed for “embarrass[ing], humiliat[ing], and slut-
sham[ing]” one of those victims because he cross-examined her regarding an
inconsistent statement given to a sexual assault nurse examiner about her
recent sexual activity; and then the trial counsel, amidst a string of other
improper comments, suggested that part of the reason Appellant should be
“dealt with harshly” was because he had “forced” the victims to undergo the
ordeal of testifying at trial. By this point in the trial as a whole, the cumula-
tive impact of these erroneous comments surpassed the reach of standard
curative instructions, such that we can no longer presume the panel followed
them in arriving at a 25-year sentence.




                                       28
               United States v. Nichol, NMCCA No. 201800286
                            Opinion of the Court

    While we find that the final Fletcher factor—the weight of the Govern-
ment’s evidence—is dispositive in favor of the Government for purposes of
findings in this case, we cannot reach the same conclusion on the issue of
prejudice that developed during sentencing. However strongly the evidence
may have supported Appellant’s guilt of the offenses of which he was convict-
ed—which were undoubtedly egregious, particularly when considered collec-
tively (as is permitted during sentencing)—it is far less clear that the mem-
bers sentenced Appellant to 25 years’ confinement on the basis of the evi-
dence alone, unconnected in any way to the Government’s improper argu-
ments, particularly when viewed in the context of this entire court-martial.
And while the sentence on its face is not inappropriately severe per se, that is
a different question than the one we are required to answer here: “whether
trial counsel’s comments, taken as whole, were so damaging that we cannot
be confident that [Appellant] was sentenced [in this case, by the members] on
the basis of the evidence alone.” Halpin, 71 M.J. at 480.
   Additionally, trial counsel’s statement toward the end of his sentencing
argument—that the victims had not testified in the court-martial by any
choice of their own, but were “forced” to do so by Appellant—may have been
an implicit, if not direct, comment upon Appellant’s exercise of both his Sixth
Amendment confrontation right and his right to trial by court-martial. As our
superior court has explained,
       A servicemember is presumed innocent and has the right to
       plead not guilty to the criminal charges against him or her. Ac-
       cordingly, a sentencing argument by trial counsel which com-
       ments upon an accused’s exercise of his or her constitutionally
       protected rights is beyond the bounds of fair comment.
United States v. Edwards, 35 M.J. 351, 355 (C.M.A. 1992) (citations and
internal quotation marks omitted). Because the Defense objected to the
comment on grounds of a lack of evidence that the victims were unwilling
participants subjected to compulsory process—as opposed to being impermis-
sible commentary on Appellant’s exercise of his constitutional rights—the
record is unclear what the intended implication of the comment actually was.
Nevertheless, our superior court has squarely held that “[i]t is black letter
law that a trial counsel may not comment directly, indirectly, or by innuendo”
on an accused’s exercise of his constitutional rights. United States v. Mobley,
31 M.J. 273, 279 (C.M.A. 1990) (addressing improper commentary on an
accused’s right not to testify or call witnesses on his behalf) (emphasis added
and citations omitted).
   Given the broad prohibition against commenting even “indirectly, or by
innuendo” on the exercise of constitutional rights, trial counsel’s comment
was objectionable as such even though the Defense did not object on that

                                      29
                United States v. Nichol, NMCCA No. 201800286
                             Opinion of the Court

basis. Whereas the trial counsel’s comment may well have been referring to
the Appellant’s misconduct as the forcing function requiring the presence of
the three victims, the risk is simply too high that the members interpreted
the trial counsel’s comment as an indictment of Appellant’s failure to plead
guilty, particularly when we are analyzing its potential for prejudice in a case
involving three victims and where the same trial counsel’s summation had
already improperly disparaged the CDC’s intent “to embarrass, humiliate,
and slut-shame” one of the victims.
    The military judge sustained the Defense objection and instructed the tri-
al counsel not to argue about why the victims were in court, but he took no
other action, failing even to issue (yet another) curative instruction that the
members disregard that comment. In light of the sentencing argument to
that point, the evidence at issue in the case, and the trial as a whole, this
particularly improper comment clearly called for at least a temporary all-stop
to the Government’s sentencing argument and a strongly-worded, explanato-
ry instruction to the members to disregard the comment and any implication
related to the exercise of Appellant’s rights, as well as a strong caution to the
trial counsel to stop “crossing the line and wandering dangerously into the
realm of impermissible argument.” Baer, 53 M.J. at 237-38 (citations omit-
ted). 44
    Hence, in the context of this three-victim, emotionally charged trial, even
the mere innuendo that Appellant’s exercise of constitutional rights could
somehow be held against him warrants a heightened standard of review.
Commenting on the exercise of such fundamental rights is no less constitu-
tionally erroneous than is commenting on an accused’s failure to testify in
violation of his Fifth Amendment right against self-incrimination, which has
long been found to invoke a higher, constitutional standard of review. See
Chapman v. California, 386 U.S. 18 (1967). For such constitutional viola-
tions, “rather than the probability that the outcome would have been differ-
ent, courts must be confident that there was no reasonable possibility that
the error might have contributed to the [outcome].” Tovarchavez, 78 M.J. at
462 n.5 (quoting Chapman, 386 U.S. at 24) (emphasis in original).




    44 Based on this and other comments made during the Government’s sentencing
and findings arguments, it is understandable why the Defense elected to lead off its
own sentencing argument by discussing Appellant’s “absolute” rights to plead not
guilty, to request trial by a jury of his peers, to hold the Government to its burden of
proof, and not to testify. R. at 1723.




                                          30
               United States v. Nichol, NMCCA No. 201800286
                            Opinion of the Court

    In light of the damaging and repetitive errors in the Government’s sen-
tencing argument, notwithstanding the military judge’s efforts to address
them as they occurred, and in the context of this case as a whole, we are
simply not confident that the members adjudged a sentence including 25
years’ confinement on the basis of the evidence alone. Further, given the
constitutional dimension of the comment that Appellant “forced” the three
victims to testify at the court-martial coupled with the inadequate curative
response from the military judge, we are even less confident that there was
no reasonable possibility that this constitutional error might have contributed
to that sentence. Accordingly, we find reversible error and take action in our
decretal paragraph.

                             III. CONCLUSION

   The findings are AFFIRMED. The sentence is SET ASIDE. Because we
cannot “determine to [our] satisfaction that, absent any error, the sentence
adjudged would have been of at least a certain severity,” United States v.
Winckelmann, 73 M.J. 11, 15 (C.A.A.F. 2013), the record is returned to the
Judge Advocate General for remand to an appropriate convening authority
with a sentencing rehearing authorized.
   Chief Judge CRISFIELD and Senior Judge GASTON concur.


                                FOR THE COURT:




                                RODGER A. DREW, JR.
                                Clerk of Court




                                      31
