              UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                               UNITED STATES

                                                          v.

                            Senior Master Sergeant MARTIN C. MASSEY
                                       United States Air Force

                                                   ACM 38496

                                               05 February 2015

            Sentence adjudged 19 September 2013 by GCM convened at Ellsworth
            Air Force Base, South Dakota. Military Judge: Mark L. Allred.

            Approved Sentence: Confinement for 5 years and reduction to E-1.

            Appellate Counsel for the Appellant: Major Nicholas D. Carter.

            Appellate Counsel for the United States:                 Major Roberto Ramírez and
            Gerald R. Bruce, Esquire.

                                                       Before

                                   MITCHELL, HECKER, and TELLER1
                                       Appellate Military Judges

                                         OPINION OF THE COURT

             This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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

TELLER, Judge:

       The appellant was convicted, contrary to his pleas, by a panel of officer members
of indecent acts, abusive sexual contact, and indecent viewing, in violation of
Articles 120 and 120c, UCMJ; 10 U.S.C. §§ 920, 920c. The adjudged and approved
sentence was confinement for 5 years and reduction to E-1.


1
 In a memorandum dated 20 May 2014, Major General Robert G. Kenny, then Performing Duties of The Judge
Advocate General, designated Senior Judge Martin T. Mitchell as the Chief Appellate Military Judge in cases where
Chief Judge Mark L. Allred served as the military judge or recused himself under the governing standards of judicial
conduct. In this case, Chief Judge Allred, while serving as a trial judge, presided over the appellant's court-martial.
Therefore, Chief Judge Mitchell designated the special panel in this case.
       The appellant argues that: (1) the evidence is factually and legally insufficient to
sustain his convictions under Charge I, (2) the military judge erred by instructing the
members to draw no adverse inference from his dismissal of portions of the alleged
offenses, (3) the military judge abused his discretion by allowing certain evidence to be
admitted under Mil. R. Evid. 413, (4) the military judge abused his discretion in allowing
testimony of uncharged misconduct, (5) the military judge erred in determining the
maximum punishment, and (6) the military judge erred by allowing improper argument. 2

       We find the appellant’s conviction as to certain acts alleged in Charge I,
Specification 1, factually insufficient and reassess the sentence as described below. We
find no other error materially prejudicial to the appellant and affirm the remainder of the
findings.

                                                Background

        After returning from a deployment to Qatar in 2011, the appellant began to engage
in a pattern of nonconsensual sexual contact with a 16-year-old relative. After being
confronted by the child’s mother, the appellant made several ambiguous admissions of
misconduct, telling her he had “crossed the line” and when confronted about placing his
hand down the child’s pants, said he was only checking for pubic hair. The appellant
later sent the child’s mother an email saying that something had broken inside him during
his deployment, and that he “never ever did anything like that before.”

       Because the pattern of abuse involving the 16-year-old child spanned the 2012
changes to Article 120, UCMJ, the allegations were segregated into conduct that occurred
between the appellant’s return from deployment in September 2011 and 27 June 2012
(Charge I, Specification 1: a single indecent acts specification) and conduct that occurred
between 28 June 2012 and 31 October 2012 (Charge I, Specifications 2–9, and Charge II,
Specifications 1 and 2: 8 specifications of abusive sexual contact and two specifications
of indecent viewing).3

                                     Factual and Legal Sufficiency

       We review issues of legal and factual sufficiency de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). “The test for legal sufficiency of the
evidence is ‘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. Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002)
(quoting United States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987)). “The test for factual
sufficiency ‘is whether, after weighing the evidence in the record of trial and making
2
 The final assignment of error is raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
3
 The appellant was found not guilty by exceptions of certain specific acts of Charge I, Specification 1, and not
guilty of an indecent exposure charged under Charge II, Specification 2.


                                                       2                                           ACM 38496
allowances for not having observed the witnesses, [we are] convinced of the [appellant]’s
guilt beyond a reasonable doubt.’” United States v. Reed, 54 M.J. 37, 41 (C.A.A.F. 2000)
(quoting Turner, 25 M.J. at 325).

       The appellant was convicted of engaging in the following conduct with the 16 year
old between 16 September 2011 and 27 June 2012: touching her mouth with his tongue
and mouth, touching her breast with his hand and mouth, touching her inner thigh with
his hand, and viewing her naked body while she was showering. He was also convicted
of engaging in similar conduct between 28 June 2012 and 31 October 2012, as well as
touching her back with his hands and mouth and touching her pubic area with his hand.

       Trial defense counsel effectively challenged the child’s sequential reporting of
additional allegations and her reliance on memories that came back to her as the
investigation was proceeding. However, her credibility was bolstered substantially by
her mother’s testimony regarding the appellant’s response when he was confronted about
the abuse. We find the appellant’s unconvincing excuse that he touched the child’s
pelvic region to check for public hair particularly illuminating. The appellant did not
deny the accusation, or even suggest the child was being inaccurate or untruthful.
Instead, he offered such a contrived and unbelievable excuse that suggested the child’s
account to indeed be credible. His e-mail apology, although subject to interpretation, also
leads us to believe the child’s version of events.

       In light of the child’s testimony and the appellant’s statements after the allegations
came to light, and making allowances for not personally observing the witnesses, we are
convinced beyond a reasonable doubt of the appellant’s guilt as to the misconduct that
occurred between 28 June 2012 and 31 October 2012 (Charge I, Specifications 2–8 and
Charge II, Specification 1). Similarly, we find the evidence legally sufficient to sustain
those convictions because, viewing the evidence in the light most favorable to the
Government, there is sufficient evidence for a reasonable fact finder to find all the
essential elements beyond a reasonable doubt.

       Regarding the conduct alleged to have occurred between 16 September 2011 and
27 June 2012, however, we are not convinced beyond a reasonable doubt that the
appellant touched the child’s inner thigh or watched her in the shower during that time
period. In her testimony, the child expressed considerable uncertainty as to when this
type of misconduct began. Based upon her equivocal testimony, we find the evidence
factually insufficient to sustain the appellant’s conviction for engaging in that conduct
prior to 28 June 2012, and we except the applicable language in our decretal paragraph
below. For the remaining misconduct alleged in Charge 1, Specification 1, we find the
evidence factually and legally sufficient to sustain the appellant’s conviction, for the
reasons stated above.




                                             3                                    ACM 38496
           Instruction Concerning Rule for Courts-Martial 917 Determination

       At the close of the Government’s case, trial defense counsel moved for a finding
of not guilty pursuant to Rule for Courts-Martial (R.C.M.) 917 as to certain parts of
Charge I, Specification 1. The military judge granted the motion with respect to (1) the
allegation that the appellant touched and kissed the child’s back and (2) that the conduct
in this specification happened on divers occasions. At trial counsel’s request, and
without objection by trial defense counsel, the military judge advised the panel about the
dismissal and instructed them they were “to draw no adverse inference towards either
party from the court’s dismissing of those matters in question.”

        The appellant now contends that the military judge’s instruction invaded the
purview of the members to decide the child’s credibility. The appellant specifically
argues that because the government charged those offenses based on the child’s
statements, her failure to testify as to those offenses undermined her credibility. The
appellant suggests that the members should have been allowed to draw that inference and
that the judge’s instruction to the contrary was error.

       “Whether a panel was properly instructed is a question of law reviewed de novo.”
United States v. Ober, 66 M.J. 393, 405 (C.A.A.F. 2008). Because trial defense counsel
did not object to the instruction at trial, we review for plain error. See United States v.
Arriaga, 70 M.J. 51, 54 (C.A.A.F. 2011). Under plain error review, the appellant has the
burden of showing there was error, that the error was plain or obvious, and that the error
materially prejudiced a substantial right of the appellant. Id.; United States v. Girouard,
70 M.J. 5, 11 (C.A.A.F. 2011).

      We find the appellant’s argument unconvincing. First, we note that the Military
Judges’ Benchbook contains a similar instruction to be given under these circumstances:

             You are advised that I have found the accused not guilty of
             [the Specification of the Charge]. However, the accused
             remains charged in this specification with [a] lesser offense . .
             . . My ruling must not influence you in any way when you
             consider whether the accused is guilty or not guilty of the
             lesser offense. The ruling was governed by a different
             standard than that which will guide you in determining
             whether the accused is guilty or not guilty of the lesser
             offense. A finding of guilty may not be reached unless the
             government has met its burden of establishing the guilt of the
             accused beyond a reasonable doubt, and whether this standard
             of proof has been met is a question which must be determined
             by you without reference to my prior ruling on the motion for
             a finding of not guilty.



                                             4                                   ACM 38496
Department of the Army Pamphlet, 27-9, Military Judges’ Benchbook, ¶ 2–7–13
(1 January 2010) (emphasis added).

       Furthermore, there are numerous potential reasons for a failure of proof other than
a lack of credibility by the complaining witness. Trial counsel may have misunderstood a
previous statement by a witness or simply have made a mistake in charging. Neither
mistake by trial counsel would lead to a logical inference that the complaining witness
lacks credibility.

       Even if it did logically lead to such an inference in this case, the military judge’s
instruction did not prejudice the appellant. Trial defense counsel vigorously contested
the child’s credibility and elicited several differences between her testimony at trial and
her previous statements. Even after the panel was provided this instruction, the panel
found the appellant not guilty of certain charged conduct testified to by the child. Under
these circumstances, there was no material prejudice to a substantial right of the
appellant.

                            Admission of Propensity Evidence

       After an adult relative found out about the abuse allegation involving the
16-year-old, she divulged that the appellant had done something similar to her in
late-1993 or early-1994 when she was 13 and the appellant was a married 23 year old.
While staying at the appellant’s house, she awoke to find him with one hand inside her
nightgown fondling her breast while his other hand attempted to unbutton the front of the
nightgown. The appellant contends the military judge abused his discretion by admitting
testimony about this incident pursuant to Mil. R. Evid. 413. He does not contest that the
predicate conditions for admission of evidence under Mil. R. Evid. 413 were met but
argues the military judge abused his discretion when conducting the balancing test under
Mil. R. Evid. 403.

       Mil. R. Evid. 413(a) provides that “[i]n a court-martial in which the accused is
charged with an offense of sexual assault, evidence of the accused’s commission of one
or more offenses of sexual assault is admissible and may be considered for its bearing on
any matter to which it is relevant.” This includes use to demonstrate an accused’s
propensity to commit the charged offenses.                  United States v. Parker,
59 M.J. 195, 198 (C.A.A.F. 2003); United States v. Wright, 53 M.J. 476, 480 (C.A.A.F.
2000). “[I]nherent in [Mil. R. Evid.] 413 is a general presumption in favor of admission.”
United States v. Berry, 61 M.J. 91, 94–95 (C.A.A.F. 2005) (citation omitted). There are
three threshold requirements for admitting evidence of similar offenses in sexual assault
cases under Mil. R. Evid. 413: (1) the accused must be charged with a sexual assault
offense; (2) the proffered evidence must be evidence of the accused’s commission of
another sexual assault offense; and (3) the evidence must be relevant under
Mil. R. Evid. 401 and 402. Id. at 95.


                                             5                                   ACM 38496
       Once these three findings are made, the military judge is constitutionally required
to also apply a balancing test under Mil. R. Evid. 403. See Berry, 61 M.J. at 95.
Mil. R. Evid. 403 provides that “[a]lthough relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the members, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.” In the Mil. R. Evid. 413 context,
the Mil. R. Evid. “403 balancing test should be applied ‘in light of the strong legislative
judgment that evidence of prior sexual offenses should ordinarily be admissible[.]’”
Wright, 53 M.J. at 482 (quoting United States v. LeCompte, 131 F.3d 767, 769 (8th Cir.
1997)). “The importance of a careful balancing arises from the potential for undue
prejudice that is inevitably present when dealing with propensity evidence.”
United States v. James, 63 M.J. 217, 222 (C.A.A.F. 2006).             “[T]he term ‘unfair
prejudice’ in the context of Mil. R. Evid. 403 ‘speaks to the capacity of some concededly
relevant evidence to lure the factfinder into declaring guilt on a ground different from
proof specific to the offense charged.’” United States v. Collier, 67 M.J. 347, 354
(C.A.A.F. 2009) (quoting Old Chief v. United States, 519 U.S. 172, 180, (1997))
(emphasis in original).

       Accordingly, in conducting the balancing test, the military judge should consider
the following non-exhaustive list of factors to determine whether the evidence’s
probative value is substantially outweighed by the danger of unfair prejudice: potential
distraction of the factfinder; additional time dedicated to prove the prior conduct;
likelihood of less prejudicial evidence; strength of proof of the prior act (i.e., conviction
versus gossip); probative weight of the evidence; temporal proximity and frequency of
the acts; presence or lack of intervening circumstances; and the relationship between the
parties. Wright, 53 M.J. at 482.

       We review an application of Mil. R. Evid. 403 for an abuse of discretion.
United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000). When a military judge
conducts a proper Mil. R. Evid. 403 balancing on the record, we will not overturn that
decision absent a clear abuse of discretion. United States v. Stephens, 67 M.J. 233, 235
(C.A.A.F. 2009). But, “[w]here the military judge is required to do a balancing test under
M.R.E. 403 and does not sufficiently articulate his balancing on the record, his
evidentiary ruling will receive less deference.” United States v. Berry, 61 M.J. 91, 96
(C.A.A.F. 2005).

        Here, the military judge articulated the Wright factors and his Rule 403 balancing
test in his written ruling. His analysis, however, focused on the probative value of the
testimony as compared to the temporal proximity of the conduct alleged by the now-adult
relative. In his findings of fact, he obliquely referenced the fact that the relative was
alone at the time of the offense, recounted her detailed recollection of the event in
question, and noted the appellant’s relationship to each of the victims. However, the
military judge did not incorporate those findings into an explicit balancing of the strength


                                             6                                    ACM 38496
of proof, availability of less prejudicial evidence, or the existence of a relationship
between the parties. He did not comment on the potential distraction of the factfinder,
the time needed for presentation of the evidence, or the frequency of the acts. Therefore,
we grant him a lower level of deference than we would have had he made detailed
findings of fact on the record as to each of the Wright factors. In conducting our own
analysis of the proffered evidence using the factors articulated in Wright, we find the
military judge’s conclusion was reasonable.

       The evidence consisted solely of the relative’s testimony, which took little time
and presented little distraction at trial. As she was the only person present other than the
appellant, there was no other less prejudicial evidence available. As a first-hand account
from a witness whose credibility was not substantially challenged, her testimony was
strong proof about this incident, though it is somewhat eroded by the substantial passage
of time. As the military judge noted, the similarity between the events and the victims is
highly probative in weighing the appellant’s propensity to commit the offenses alleged.
These factors weigh in favor of admission.

       The lack of temporal proximity is the strongest factor weighing against admission,
but the lack of evidence of other acts of sexual assault and the intervening circumstances
entailed in the changes to the appellant’s family circumstances and maturity weigh
against admission as well. The lack of a direct family relationship between this relative
and the appellant reduces the potential for unfair prejudice, but since both victims were to
some degree under his care, there is still some risk of unfair prejudice to consider.
However, the similarity also suggests a propensity to take advantage of vulnerable young
women under his supervision. Overall, this last factor is neutral.

       Even affording the military judge only some deference, we conclude, as he did,
that the probative value of this evidence was high and that its value was not substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
members, or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence. We therefore find the military judge did not abuse his discretion in
admitting this testimony.

                            Uncharged Misconduct Evidence

       The appellant next asserts that the military judge erred by permitting testimony
that the appellant helped the child change into her pajamas. Although the appellant now
argues this was impermissible evidence of uncharged misconduct not offered in
accordance with Mil. R. Evid. 404(b), the only objection at trial was relevance.

       In order to preserve an issue for appeal, there must be a timely and specific
objection at trial. Mil. R. Evid. 103(a)(1). “[Mil. R. Evid.] 103 does not require the
moving party to present every argument in support of an objection, but does require


                                             7                                   ACM 38496
argument sufficient to make the military judge aware of the specific ground for objection,
‘if the specific ground was not apparent from the context.’” United States v. Datz,
61 M.J. 37, 42 (C.A.A.F. 2005). The appellant argues that the Government’s failure to
include this evidence in their notice required by Mil. R. Evid. 404(b)(2) renders it
inadmissible even if offered for an otherwise permissible purpose. The appellant also
argues that, because the military judge failed to conduct a Mil. R. Evid. 403 balancing
test on the record, we should afford his ruling no deference.

       Despite these arguments on appeal, at trial appellant’s counsel made only a vague
relevance objection. After allowing six questions on the subject without objection, trial
defense counsel eventually objected: “Your Honor, I’m going to object at this point. I
don’t know how any of this is relevant to any of the charges in this case.” The military
judge overruled the objection without explanation and directed trial counsel to continue.
The appellant’s objection was not sufficient to make the military judge aware of any
defect in the Government’s Rule 404(b)(2) notice. Nor was it sufficient to trigger a
balancing test when trial defense counsel’s argument was that it was not relevant at all.
Accordingly, in the absence of a more specific objection, we apply a plain error standard
of review.

        We find no plain error in this case. “Plain error occurs when (1) there is error,
(2) the error is plain or obvious, and (3) the error results in material prejudice to a
substantial right of the accused.” United States v. Fletcher, 62 M.J. 175, 179 (C.A.A.F.
2005) (citing United States v. Rodriguez, 60 M.J. 87, 88 (C.A.A.F. 2004)). The
Government, in proving Specifications 2 through 8 of Charge I, had the burden to prove
that the appellant touched the child with the intent to gratify his sexual desire. His
conduct in helping her change into pajamas, while not conclusive, would tend to show
that intent, as well as establishing his opportunity to engage in the charged offenses. The
testimony is relevant and permissible for those non-propensity purposes. The military
judge had no reason to know whether proper notice had been provided, and therefore any
error in allowing the testimony on that basis was not plain or obvious.

       Nor is it obvious that the probative value of the evidence was substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
members, or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence. The evidence was offered during a comparatively brief segment of
the victim’s direct testimony. Because it related directly in time and location to many of
the charged offenses, there was little danger of confusing the members. Nor was there a
substantial risk of inducing the members to find him guilty of the charged offenses on the
basis of this less invasive conduct rather than her testimony of the actual contact itself. In
the absence of plain error, we find no basis for relief under this assignment of error.




                                              8                                    ACM 38496
                                            Maximum Punishment

      The appellant also argues that the military judge erred in determining the
maximum punishment for the offenses of which he was convicted. “The maximum
punishment authorized for an offense is a question of law, which we review de novo.”
United States v. Beaty, 70 M.J. 39, 41 (C.A.A.F. 2011).

       At trial, the parties agreed that the appellant was subject to a maximum
confinement of 13 years.4 The appellant now contends that because the President had not
yet established a maximum punishment for abusive sexual contact under Article 120(d),
UCMJ, as amended by the National Defense Authorization Act (NDAA) for Fiscal Year
2012, the maximum confinement for that offense was limited to 5 years, instead of the
7 years agreed to by the parties at trial. He further argues that the President’s change in
the sentencing provision is improperly being applied to him retroactively, in violation of
the ex post facto clause. We disagree.

        The revisions to Article 120, UCMJ, completely replaced the existing Article
when they took effect on 28 June 2012. The particular offense of abusive sexual contact
of which the appellant was convicted (Article 120(d), UCMJ) was not “listed in Part IV”
of the Manual for Courts-Martial (MCM) for purposes of determining limits on
maximum punishment until the President issued an executive order on 15 May 2013,
after the appellant’s misconduct occurred.5 See MCM, Part IV, ¶ 45. (2012 ed.).

      Under those circumstances, the maximum punishment is determined pursuant to
Rule for Court-Martial (R.C.M.) 1003(c). For offenses not listed in Part IV, the
maximum punishment depends on whether the offense is “included in or closely related
to” a listed offense in the Manual. R.C.M. 1003(c)(1)(B); United States v. Finch,
73 M.J. 144, 147 (C.A.A.F. 2014); Beaty, 70 M.J. at 42 n.7.

        Although abusive sexual contact under the 2012 Article 120(d), UCMJ,6 was not
listed in Part IV at the time of the appellant’s misconduct, there was an identically titled



4
   The military judge first granted a defense motion to consolidate, for the purposes of sentencing, Specifications 2
through 8 of Charge I. The parties then agreed that the maximum confinement authorized for Charge I,
Specification 1 (indecent acts) was 5 years, for Charge I, Specifications 2 through 8 (abusive sexual contact) was
7 years, and for Charge II, Specification 2 (indecent viewing) was 1 year.
5
   On 15 May 2013, the President amended Paragraph 45 of Part IV of the Manual for Courts-Martial (MCM),
establishing maximum punishments for offenses under Article 120, UCMJ. Exec. Order 13,643, 78 Fed. Reg. 29559
(May 15, 2013); MCM, Part IV, ¶ 45 (2012 ed.). The order set the maximum punishment for Abusive Sexual
Contact under Article 120(d), as a dishonorable discharge, 7 years of confinement, total forfeitures, and reduction to
E-1.
6
   “[Article 120](d) Abusive Sexual Contact. Any person subject to this chapter who commits or causes sexual
contact upon or by another person, if to do so would violate subsection (b) (sexual assault) had the sexual contact
been a sexual act, is guilty of abusive sexual contact and shall be punished as a court-martial may direct.” MCM,
Part IV, ¶ 45.a.(d).


                                                          9                                             ACM 38496
offense listed in Part IV under the 2007 Article 120(h), UCMJ.7 To determine whether
the two versions of abusive sexual contact are closely related, we compare their statutory
elements and definitions.

        The elements of the two provisions are substantially similar. The Analysis of the
2012 changes to Article 120, UCMJ, indicates “Abusive Sexual Contact remain[s]
significantly unchanged from the 2007 version of Article 120 except to substitute
‘commits’ for ‘engages in.’” MCM, A23-15. The definition of “sexual contact,”
however, is substantially broader in the 2012 statute. Instead of being limited to certain
enumerated body parts, the revised definition “include[s] touching any part of the body
with the intent to arouse or gratify the sexual desire of any person.” Id. We note that, in
this case, the appellant’s conduct as alleged in the consolidated specification included
contact with the child’s breast and inner thigh and thus would also have been within the
more limited definition of sexual contact found in the 2007 statute. We therefore find the
two versions of abusive sexual contact are closely-related and the maximum punishment
for the appellant’s offense included 7 years of confinement, as agreed to at trial.8

       We also find unconvincing the appellant’s argument that, citing Lindsey v.
Washington, 301 U.S. 397 (1937), the military judge’s determination of the maximum
punishment constituted a violation of the ex post facto clause. Although the military
judge noted that the President had set the maximum confinement for the new abusive
sexual contact offense at 7 years, he also referred to the fact that the previous offense also
included that confinement maximum. As discussed above, since the military judge did
not err in determining the maximum confinement for this offense, the application of
Executive Order 13,643 would not have increased the punishment and thus would not
have violated the ex post facto clause in any event. Given this conclusion, we find the
appellant’s ex post facto argument inapposite.

                                              Findings Argument

       Finally, the appellant contends, pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982), that the military judge erred by allowing impermissible
closing argument by trial counsel. “When no objection is made during the trial, a
counsel’s arguments are reviewed for plain error.” United States v. Burton, 67 M.J. 150,
152 (C.A.A.F. 2009) (citing United States v. Schroder, 65 M.J. 49, 57–58 (C.A.A.F.
2007)).
7
  “[Article 120](h) Abusive sexual contact. Any person subject to this chapter who engages in or causes sexual
contact with or by another person, if to do so would violate subsection (c) (aggravated sexual assault) had the sexual
contact been a sexual act, is guilty of abusive sexual contact and shall be punished as a court-martial may direct.”
MCM, A28-2.
8
  We also find persuasive the unpublished opinion of the Navy-Marine Corps Court of Criminal Appeals in
United States v. Symansky, applying the same analysis to reach the conclusion that the maximum punishment for
abusive sexual conduct committed after 28 June 2012 but before 15 May 2013 included confinement for 7 years.
See United States v. Symansky, NMCCA 201300123, 9-10 (N.M. Ct. Crim. App. 26 November 2013).



                                                         10                                             ACM 38496
       The appellant asserts that trial counsel’s argument for a lengthy term of
confinement so the victim will be old enough to tell the appellant “no” suggested a risk of
recidivism unwarranted by the evidence. He also claims that trial counsel’s comment on
his unsworn statement was improper. In sentencing argument, trial counsel argued to the
court:

              Today, the accused came before you and said, “I’m sorry to
              my family for the pain that came through this process.” He
              didn’t tell you, “I’m sorry for the pain I caused you, [the
              victim].” He didn’t tell you, “It’s my fault; I did this.” He’s
              sorry for the process. That’s not a man who’s sorry. That’s
              not a man who could be easily rehabilitated.

        The appellant suggests that the two sentences beginning with “He didn’t tell you,”
constituted a comment on the appellant’s right to remain silent. There was no objection
to either line of argument at trial.

        Under the plain error test applicable in the absence of a timely objection, we find
no prejudicial error. The relevant test is whether “‘trial counsel’s comments, taken as a
whole, were so damaging that we cannot be confident’ that [the appellant] was sentenced
‘on the basis of the evidence alone.’” United States v. Erickson, 65 M.J. 221, 224
(C.A.A.F. 2007) (quoting Fletcher, 62 M.J. at 184). In the context of the entire
argument, we are confident the oblique references now complained of upon appeal did
not impermissibly sway the panel into sentencing the appellant for anything other than
the serious, recurring offenses of which he was convicted. Accordingly, the appellant has
failed to meet his burden of establishing prejudice, and we reject this assignment of error.

                                  Sentence Reassessment

       This court has “broad discretion” when reassessing sentences. United States v.
Winckelmann, 73 M.J. 11, 12 (C.A.A.F. 2013). Our superior court has repeatedly held
that if we “can determine to [our] satisfaction that, absent any error, the sentence
adjudged would have been of at least a certain severity, then a sentence of that severity or
less will be free of the prejudicial effects of error.” United States v. Sales, 22 M.J. 305,
308 (C.M.A. 1986). This analysis is based on a totality of the circumstances with the
following as illustrative factors: dramatic changes in the penalty landscape and exposure,
the forum, whether the remaining offenses capture the gravamen of the criminal conduct,
whether significant or aggravating circumstances remain admissible and relevant, and
whether the remaining offenses are the type that we as appellate judges have experience
and familiarity with to reliably determine what sentence would have been imposed at
trial. Winckelmann, 73 M.J. at 15–16.

        Here, there is no change in the penalty landscape from our action excepting certain
acts from Charge I, Specification 1. The maximum punishment remained the same. The


                                             11                                  ACM 38496
sole reason for separating those acts in Charge I, Specification 1 from those in Charge I,
Specification 8, and Charge II, Specification 1 was a change in the law, not any
difference in culpability. The appellant was convicted in Charge I, Specification 8 and
Charge II, Specification 1 of the same type of conduct as described in the excepted
language, but later in time, capturing the gravamen of the misconduct and retaining the
admissibility and relevance of the surrounding circumstances. We also find that the
remaining offenses are of the type that we have experience and familiarity with as
appellate judges to determine the sentence that would have been imposed. We have
considered the totality of the circumstances and reassess the sentence to the same
sentence approved by the convening authority.

                                        Conclusion

       We affirm Specification 1 of Charge I, excepting the language “touching [the
victim’s] inner thigh with his hand” and “viewing the naked body of [the victim] by
entering the bathroom and opening the shower curtain while the said [victim] was
showering; and.” We affirm the remainder of the findings. The findings, as modified,
and the sentence as reassessed, are correct in law and fact, and no remaining 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 findings, as modified,
and the sentence are

                                          AFFIRMED.

MITCHELL, CHIEF JUDGE, Concurring:

        I concur with opinion in all aspects except for the amount of deference we should
provide to the military judge’s ruling on the Mil. R. Evid. 413 motion. The majority
finds that the military judge did not sufficiently articulate his reasoning during the
Rule 403 balancing test and therefore is afforded only some deference. I disagree and
would find that the balancing test performed by the military judge was adequate. The
list of factors found in United States v. Wright, 53 M.J. 476, 482 (C.A.A.F. 2000), is
neither exclusive nor exhaustive. See United States v. Dewrell, 55 M.J. 131, 138
(C.A.A.F. 2001). The military judge listed the Wright factors in his written ruling. He
then specifically articulated that he considered the temporal distance between the events
as weighing against admission but this factor was “greatly outweighed” by the highly
probative nature of the two assaults: both involved similar acts against female relatives of
similar age who were vulnerable and isolated from others in the appellant’s home. The
military judge then specifically stated the probative value was not substantially
outweighed by any of the concerns listed in Mil. R. Evid. 403. While the military judge
did not articulate that he considered all of the Wright factors, I conclude that the military
judge made a clear record of his balancing test and is therefore entitled to full deference
under the “abuse of discretion” standard. See Dewrell, 55 M.J. at 138.



                                             12                                   ACM 38496
Because the majority concludes that the evidence is admissible, I concur with that result.



              FOR THE COURT


              STEVEN LUCAS
              Clerk of the Court




                                            13                                  ACM 38496
