     UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                        TOZZI, CAMPANELLA, and CELTNIEKS
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                        Sergeant MICHAEL C. MORRILL
                          United States Army, Appellant

                                   ARMY 20140197

                        Headquarters, 7th Infantry Division
                   David L. Conn, Military Judge (arraignment)
                      Jeffery D. Lippert, Military Judge (trial)
            Lieutenant Colonel Michael S. Devine, Staff Judge Advocate


For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Captain Heather L.
Tregle, JA; Captain Matthew L. Jalandoni, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major John K. Choike, JA; Major Diara Z. Andrews, JA (on brief).


                                   31 October 2016

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                               SUMMARY DISPOSITION
                              ----------------------------------

CAMPANELLA, Senior Judge:

       An enlisted panel sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of rape, two specifications of assault
consummated by battery, and one specification of obstruction of justice in violation
of Articles 120, 128, and 134 of the Uniform Code of Military Justice, 10 U.S.C. §§
920, 928, and 934 (2012) [hereinafter UCMJ]. The panel sentenced appellant to a
bad-conduct discharge, eighteen months confinement, forfeiture of all pay and
allowances, and a reduction to the grade of E-1. The convening authority approved
only so much of the sentence as provides for a bad-conduct discharge, seventeen
months confinement, forfeiture of all pay and allowances, and a reduction to the
grade of E-1.

      This case is before us for review pursuant to Article 66, UCMJ. Appellate
counsel raises one assignment of error, which requires discussion but no relief.
MORRILL —ARMY 20140197

Appellant personally raised matters pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982) which we find, after due consideration, to be without merit.

                                  BACKGROUND

       At trial, after the conclusion of the government’s case-in-chief, defense
counsel indicated to the military judge that he had a motion but wanted to call a
defense witness first because the witness was going to be unavailable the next day.
After the witness’ testimony, the military judge dismissed the panel members for the
evening and recessed the court-martial. The next page of the transcript reflects that
the court reconvened the next day and the defense’s case resumed. Later in the trial,
the military judge referenced a Rule for Courts-Martial [hereinafter R.C.M.] 917
motion when discussing the relevance of testimony from a different defense witness:

             MJ: [Appellant’s] not charged with having a disorder.
             He’s charged with a rape case on a particular day. And on
             that particular--as I ruled last night in the 917 motion,
             there is some evidence--that’s going to the panel. That’s
             what he is charged with. That’s what’s going to the panel
             to make a decision.

The panel found appellant guilty of all charges and specifications, indicating that the
military judge determined there was enough evidence to proceed and that he denied
defense’s R.C.M. 917 motion.

       The record of trial was subsequently authenticated and appellant failed to
raise error in his post-trial matters. On appeal, appellant asserts the omission of the
Article 39(a) proceeding where the defense moved for a finding of not guilty and the
military judge made a ruling on the R.C.M. 917 motion renders the transcript
nonverbatim and the record of trial incomplete, necessitating relief under Rule for
Courts-Martial R.C.M. 1103(f).

                              LAW AND DISCUSSION

        “[T]he record of trial shall include a verbatim transcript of all sessions
except sessions closed for deliberations and voting when [a]ny part of the sentence
adjudged exceeds six months confinement. . . .” R.C.M. 1103(b)(2)(B). Literal
compliance with the term “verbatim,” meaning “[w]ord for word; in the same
words,” is not required, but a “substantial” qualitative omission renders a transcript
nonverbatim. United States v. Lashley, 14 M.J. 7, 8 (C.M.A. 1982). Whether an
omission of testimony from a record of trial is “substantial” is analyzed on a case-
by-case basis. United States v. Abrams, 50 M.J. 361, 363 (C.A.A.F. 1999). A
substantial omission will raise a presumption of prejudice but it can be rebutted by




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MORRILL —ARMY 20140197

the government. United States v. Harrow, 62 M.J. 649, 654-55 (A.F. Ct. Crim. App.
2006).

       Here, appellant’s sentence exceeded six months thereby triggering the
requirement for a verbatim transcript. It is clear from the record that the military
judge denied defense’s R.C.M. 917 motion. Because counsel arguments in support
of the R.C.M. 917 motion and the military judge’s findings and conclusions of law
are omitted from the record of trial, * it constitutes a substantial omission.

       Despite the substantial omission, we find that any presumption of prejudice is
rebutted by the record. Our review of the record convinces us that the evidence is
sufficient to sustain the findings of guilty. See R.C.M. 917(g) (“[T]he findings need
not be set aside upon review solely because the motion for finding of not guilty
should have been granted upon the state of the evidence when it was made.”). We
find the record of trial is adequate to permit informed review by this court and any
other reviewing authorities. See United States v. Carmans, 9 M.J. 616, 621
(A.C.M.R. 1980) (“If the record of trial is sufficiently complete to permit
reviewing agencies to determine with reasonable certainty the substance and
sense of the question . . . then prejudice is not present.”). Accordingly, we find
the record in appellant’s case is both substantially verbatim and complete for
appellate review purposes.

                                   CONCLUSION

      Upon consideration of the entire record, the findings of guilty and the
sentence as approved by the convening authority are AFFIRMED.

      Senior Judge TOZZI and Judge CELTNIEKS concur.

                                       FORTHE
                                      FOR  THECOURT:
                                               COURT:




                                      MALCOLM
                                       MALCOLMH.H.SQUIRES,
                                                      SQUIRES,JR.
                                                               JR.
                                      Clerk of Court
                                       Clerk of Court




*
 We note that appellate defense counsel has not submitted any evidence from
appellant or trial defense counsel indicating other substantial discussions occurred
during the omitted Article 39(a) session.


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