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

                               No. ACM 39343
                          ________________________

                             UNITED STATES
                                 Appellee
                                       v.
                    Christopher W. FENDERSON
             Senior Airman (E-4), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                           Decided 10 April 2019
                          ________________________

Military Judge: Marvin W. Tubbs, II.
Approved sentence: Bad-conduct discharge, confinement for 4 years, for-
feiture of all pay and allowances, and reduction to E-1. Sentence ad-
judged 7 June 2017 by GCM convened at McConnell Air Force Base,
Kansas.
For Appellant: Major Meghan R. Glines-Barney, USAF.
For Appellee: Lieutenant Colonel Joseph Kubler, USAF; Lieutenant
Colonel G. Matt Osborn, USAF; Mary Ellen Payne, Esquire.
Before MAYBERRY, HUYGEN, and MINK, Appellate Military Judges.
Chief Judge MAYBERRY delivered the opinion of the court, in which
Senior Judge HUYGEN and Judge MINK joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                       ________________________
MAYBERRY, Chief Judge:
    Appellant was convicted, contrary to his pleas, by a panel consisting of of-
ficer and enlisted members, of attempted enticement of a minor to engage in
sexual activity using a means of interstate commerce, in violation of Article 80,
                 United States v. Fenderson, No. ACM 39343


Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 880, and 18 U.S.C. §
2422(b); and attempted sexual abuse of a child by communicating obscene lan-
guage with the intent to gratify his sexual desires, attempted sexual abuse of
a child by intentionally sending a picture of his genitalia with the intent to
gratify his sexual desires, and attempted receipt and possession of child por-
nography, all in violation of Article 80, UCMJ, 10 U.S.C. § 880. Appellant’s
adjudged and approved sentence consisted of a bad-conduct discharge, confine-
ment for four years, forfeiture of all pay and allowances, and reduction to E-1.
    Appellant asserts a single assignment of error: the military judge abused
his discretion in giving the standard Military Judges’ Benchbook reasonable
doubt instruction. We find no prejudicial error and affirm.

                               I. BACKGROUND
    The military judge’s instruction during his preliminary instructions on
findings included the following language:
       The government has the burden of proving [Appellant’s] guilt by
       legal and competent evidence beyond a reasonable doubt. . . . If,
       based on your consideration of the evidence, you are firmly con-
       vinced that [Appellant] is guilty of any offense charged, you must
       find him guilty. If on the other hand, you think there is a real
       possibility that [Appellant] is not guilty, you must give him the
       benefit of the doubt and find him not guilty.
    This instruction was in accordance with the burden of proof instruction pro-
vided in the Air Force Benchbook, Dept. of the Air Force, ch. 2, § V, ¶ 2–5–12
(2016). Trial defense counsel did not object. Appellant’s trial defense counsel
were released on the third day of trial (after preliminary instructions and the
presentation of Government witnesses). After a continuance was granted, new
counsel were detailed and participated in the remainder of the trial. At the
conclusion of the presentation of evidence, the military judge and all counsel
discussed the draft instructions, which discussion included, inter alia, the fol-
lowing:
       MJ [Military Judge]: Defense counsel, any requests for addi-
       tional instructions or objections to the draft instructions as they
       now exist?
       ADC1 [Trial Defense Counsel]: Yes, sir. One, we would request,
       in the beyond a reasonable doubt instruction, that the word
       “should” be substituted in for “must,” and instruct the members
       on how it’s defined.
       MJ: Trial counsel, what’s your position?


                                       2
                 United States v. Fenderson, No. ACM 39343


       TC [Trial Counsel]: We would oppose that, sir. We would cite
       U.S. v. [McClour], a recent CAAF case. Although the case dis-
       cussed that there was no plain error, because the defense did not
       object to it, I understand the defense is objecting to the “must”
       instruction, but the court suggested that there was no error in
       regards to the “should” versus “must” scenario. So we would ask
       that you keep the Air Force Instruction of “must.”
       MJ: I intend to -- well, I’m going to deny the request for that
       change, based on the existing case law, as well as the fact that
       I’ve instructed on reasonable doubt, at the beginning of this case,
       and didn’t make that change at that time. So based on the case
       law alone, I believe that I could deny that, so -- coupled with the
       fact that I have already instructed on reasonable doubt, I will
       deny that request. Defense counsel, next?
       ADC1: Sir, just to make clear, I think it is, but to hit it again.
       We formally object to the word “must” staying in that.
       MJ: Understood. I took that to be your objection, preserving it
       for any appellate review.
    The instruction given to the members prior to their deliberation on findings
stated:
       Lastly, the burden of proof to establish the guilt of the accused
       beyond a reasonable doubt is on the government. . . . A “reason-
       able doubt” is a conscientious doubt, based upon reason and com-
       mon sense, and arising from the state of the evidence. . . . Proof
       beyond a reasonable doubt is proof that leaves you firmly con-
       vinced of the accused's guilt. . . . If, based on your consideration
       of the evidence, you are firmly convinced that the accused is
       guilty of any offense charged, you must find him guilty. If, on the
       other hand, you think there is a real possibility that the accused
       is not guilty, you must give him the benefit of the doubt and find
       him not guilty.

                                II. DISCUSSION
    Appellant asserts that the military judge’s instruction amounted to a di-
rected verdict. Appellant acknowledges that United States v. McClour, 76 M.J.
23, 25 (C.A.A.F. 2017), specifically held otherwise but asserts that McClour
was only reviewed for plain error and is therefore distinguishable here due to
trial defense counsel’s objection to the instruction. We disagree and find that
there was no error with respect to the instruction.



                                        3
                  United States v. Fenderson, No. ACM 39343


   Whether a panel was properly instructed is a question of law that we review
de novo. McClour, 76 M.J. at 25 (citation omitted). The issue in McClour was
whether the phrase “you must find him guilty” constituted a directed verdict.
Specifically, the court held:
       “The harm of [a] directed verdict . . . is that it deprive[s] the
       [panel] of the power to determine guilt,” State v. Ragland, 105
       N.J. 189, 519 A.2d, 1361, 1368 (N.J. 1986), and the accused of
       the statutory right to have his guilt determined by a panel of
       fellow servicemembers. Article 16, UCMJ, 10 U.S.C. § 816
       (2012); R.C.M. 501(a); R.C.M. 903.
       No such deprivation results from the use of the word “must” in
       the instructions before us, which plainly leaves the determina-
       tion of guilt beyond a reasonable doubt based on the evidence in
       the hands of the members: “[I]f, based on your consideration of
       the evidence, you’re firmly convinced that the accused is guilty of
       the offense charged, you must find him guilty.” (Emphasis
       added.) And the military judge reiterated that the panel mem-
       bers were the ones to determine guilt or innocence by “weighing
       and evaluating the evidence” and “us[ing] [their] own common
       sense, [their] own knowledge of human nature and the ways of
       the world.”
Id. (Alterations in original).
    The United States Court of Appeals for the Armed Forces (CAAF) consid-
ered the prohibition on directed verdicts in criminal cases, citing Sullivan v.
Louisiana, 508 U.S. 275, 277 (1993), numerous federal appellate and state su-
preme court decisions that concluded the “must find” language did not consti-
tute a directed verdict, and United States v. Meeks, 41 M.J. 150, 157 n.2
(C.M.A. 1994) (noting an instruction with the “must find” language as a possi-
ble replacement for the instruction then being used in courts-martial, in ac-
cordance with the Federal Judiciary Center’s Pattern Criminal Instruction 28
(1987)). In the end, the CAAF held, “[I]t cannot be said that any error (if error
there were) on the military judge's part in using the word ‘must’ in his burden
of proof instruction is clear or obvious.” McClour, 76 M.J. at 26.
    The recently published opinion in United States v. Shadricks, 78 M.J. 720
(A.F. Ct. Crim. App. 2019), applied de novo review, based on trial defense coun-
sel’s objection to the “must find” language, and held:
       Nothing about the CAAF’s opinion in McClour suggests that
       court would have reached a different result had it applied a de
       novo standard of review. On the contrary, the CAAF noted “nu-
       merous federal appellate and state supreme courts” have upheld


                                       4
                 United States v. Fenderson, No. ACM 39343


       the language of the challenged instruction. McClour, 76 M.J. at
       25 (citations omitted). In addition, the CAAF noted it had previ-
       ously cited with approval very similar language in the Federal
       Judiciary Center’s Pattern Criminal Jury Instructions. Id. at 26
       (citing United States v. Meeks, 41 M.J. 150, 157 n.2 (C.M.A.
       1994)).
Id. at 723.
    Based on trial defense counsel’s objection to the “must find” language in the
pre-deliberation findings instructions and pursuant to the holding in Sha-
dricks, we apply de novo review. When taken as a whole, the instructions in
this case clearly stated the proper burden of proof and left it to the members
to determine whether the Government's evidence met that burden. Nothing
more is required. In accordance with the CAAF’s decision in McClour and this
court’s decision in Shadricks, we find that the military judge’s reasonable
doubt instruction in this case was appropriate.

                               III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c) (2016). Accordingly, the
findings and the sentence are AFFIRMED.


                     FOR THE COURT



                     CAROL K. JOYCE
                     Clerk of the Court




                                       5
