              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.
                                 Before
             R.Q. WARD, J.R. MCFARLANE, K.M. MCDONALD
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                        BRANDON J. BROWN
                  SERGEANT (E-5), U.S. MARINE CORPS

                           NMCCA 201300181
                       GENERAL COURT-MARTIAL


Sentence Adjudged: 24 April 2012.
Military Judge: LtCol C.A. Miracle, USMCR.
Convening Authority: Commanding General, 2d Marine Aircraft
Wing, Cherry Point, NC.
Staff Judge Advocate's Recommendation: LtCol J.J. Murphy,
USMC.
For Appellant: Philip D. Cave, Esq.; LT Jennifer L. Myers,
JAGC, USN.
For Appellee: Maj Paul M. Ervasti, USMC.

                              30 June 2014

     ---------------------------------------------------
                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

WARD, Senior Judge:

     A general court-martial consisting of officer and enlisted
members convicted the appellant, contrary to his pleas, of
making a false official statement, assault consummated by
battery, communicating a threat, and two specifications of
wrongfully possessing firearms after having been convicted of a
misdemeanor crime of domestic violence, in violation of Articles
107, 128, and 134, Uniform Code of Military Justice, 10 U.S.C.
§§ 907, 928, and 934. The members sentenced the appellant to
confinement for 15 years, reduction to pay grade E-1, total
forfeiture of pay and allowances for 12 months, and a
dishonorable discharge. The convening authority approved the
sentence as adjudged.

      On appeal, the appellant raises eight assignments of error
(AOE).1 We address only two: admission of improper character
evidence under MILITARY RULE OF EVIDENCE 404(b), MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2012 ed.) (AOE II), and legal sufficiency of
the false official statement conviction (AOE VI). We find the
remaining assignments of error either without merit (AOE I, III,
IV, and V) or rendered moot (AOE VII and VIII) by our decision.2
Having carefully considered the record of trial, the assignments
of error and the parties’ pleadings, we find error that
materially prejudiced both the findings and sentence, and take
corrective action in our decretal paragraph.3

1
  I. That the military judge erred by denying the defense challenge for cause
against Staff Sergeant [S];

II. That the military judge abused his discretion in ruling on a motion in
limine and on other evidentiary objections, which allowed for a constellation
of errors which substantially prejudiced appellant’s right to a fair trial;

III. That the guilty finding for assault and battery is factually and legally
insufficient;

IV. That the military judge abused his discretion by denying the appellant’s
motion to suppress wherein Sergeant Major [S] made statements which he knew
or had reason to believe were false, or were made with reckless disregard for
the truth;

V. That the guilty findings for wrongfully possessing firearms in violation
of 18 U.S.C. § 922(g)(9) are neither factually nor legally sufficient;

VI. That the guilty finding for making a false official statement is neither
factually nor legally sufficient;

VII. That the offenses for violation of 18 U.S.C. § 922(g)(9) are
unreasonably multiplied both for findings and sentencing;

VIII. That the appellant’s sentence to confinement for 15 years is
inappropriately severe.
2
  As to AOE VII, the appellant’s claim that his guilty findings under 18
U.S.C. § 922(g)(9) for possession of two loaded firearms in the trunk of his
car are unreasonably multiplied, we note that the Government concedes on
appeal that it is “well established that the simultaneous possession of
several weapons constitutes only one offense” for purposes of 18 U.S.C. §
922(g)(9). Appellee’s Brief of 18 Feb 2014 at 39.
3
  Additionally, we note that the time between sentencing and the convening
authority’s action exceeded 120 days. Balancing the four factors under

                                      2
                             Factual Background

     This case arose out of a series of domestic disturbances
involving the appellant and his wife, EB. In 2011, the
appellant was convicted in District Court, Onslow County, North
Carolina, for misdemeanor assault of EB, and received a sentence
of 60 days confinement suspended for twelve months. He later
stipulated at his court-martial that this conviction was a
“misdemeanor crime of domestic violence.”4

     On 1 April 2012, EB called 911 and reported that her
husband was threatening to kill her at their off-base apartment.
On 28 April 2012, a neighbor called 911 and reported that he
could hear “spousal abuse” coming from the appellant’s
apartment, that he could hear a female voice “screaming and
crying,” and that this was “not the first time [he’s] heard them
fighting.”5

     On 29 April 2012, a civilian acquaintance of the appellant,
Mr. G, reported to base military police an incident with the
appellant occurring earlier that day. That morning, he alleged,
the appellant accosted him while pointing a pistol at him.
However, Mr. G. later refused to cooperate with military police
in any investigation.

     On 10 June 2012, EB again called 911 and told the operator
that she wanted to “report a domestic violence” against her
husband because he had “jumped on [her] and stuff.”6 When police
arrived, EB told them that she and her husband had been arguing
when he “punched her in the face, threw her on the ground and
started kicking her . . . .”7 The police officers took photos of
a knot on EB’s forehead and several bruises. Once they
explained that they would arrest her husband, however, EB’s
demeanor changed and she asked them not to arrest him or take
any further action. She then refused to sign any statement and
instructed her friend who was present to do the same. They both


United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006), we find no post-
trial due process violation occurred.
4
    Prosecution Exhibit 2.
5
    PE 7.
6
    PE 8.
7
    Record at 361.

                                      3
declined to give any further details and refused to cooperate in
any investigation.

     On 12 June 2012, the appellant’s commanding officer ordered
him into pretrial confinement. After his Initial Review Officer
(IRO) hearing the following day, the appellant was sitting in an
office with his command legal officer and another member of his
squadron. The three were eating sandwiches and discussing the
hearing while awaiting completion of the IRO’s report. As they
talked, the appellant commented that “he didn’t even own a
weapon” or words to that effect.8

     While the appellant was in pretrial confinement, members of
his command obtained authorization to search his car, which was
parked on base. On 22 June 2012, they executed a search of the
vehicle. In a green storage bin located in the trunk, they
found a .45 ACP pistol and .038 pistol, each with a loaded
magazine inserted and an additional 50 rounds of .45 ACP
ammunition in a carrying case.

     At trial, the appellant faced charges for communicating a
threat to EB on 1 April 2012 and two specifications of assault
and battery of EB on 10 June 2012;9 one specification for making
a false official statement for his comment following the IRO
hearing; and four specifications of 18 U.S.C. § 922(g)(9) for
wrongfully possessing two firearms and ammunition in the trunk
of his car.10

                        Improper Character Evidence



8
     Id. at 308.
9
  The military judge later consolidated these offenses prior to findings.       Id.
at 461-62.
10
   These four specifications were all charged under clauses (1), (2) and (3)
of Article 134, UCMJ. The clause (3) offenses were pleaded as violations of
Title 18 U.S.C. § 922(g)(9) (“Lautenberg violations”), which prohibits anyone
with a misdemeanor conviction for domestic violence from possessing,
shipping, transporting, or receiving any firearm or ammunition. Effective 30
September 1996, this provision was added to The Gun Control Act of 1968
through legislation sponsored by the late Sen. Frank Lautenberg (D-NJ). See
104 P.L. 208, § 658. The specification for wrongfully possessing .45 ACP
ammunition was later dismissed by the military judge under RULE FOR COURTS-
MARTIAL 917, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). Record at 467-68.
The members found the appellant guilty of the two specifications involving
possession of a firearm and not guilty of sole remaining specification
involving possession of .380 ammunition. Id. at 515.

                                         4
     In light of several evidentiary challenges, the Government
served notice to the defense of evidence it intended to offer at
trial pursuant to MIL. R. EVID. 404(b). This evidence consisted
of previous domestic disturbance calls to 911 and the above
incident involving Mr. G. During the pretrial motion hearing,
the Government argued that the previous 911 calls and related
police reports provided evidence of the appellant’s intent and
plan to abuse his wife, and further defeated any accidental
cause of EB’s injuries on 10 June 2012.11

     The Government then posited that the incident involving Mr.
G revealed the appellant’s knowledge of and intent to possess
one of the firearms later recovered from his vehicle. This was
due to the similarity between the pistol Mr. G described and the
one later recovered from the appellant’s vehicle.12

     Ultimately, the military judge agreed, concluding that the
brandishing of a firearm was relevant to show knowledge to rebut
any claim of mistake or accident concerning the Lautenberg
violations. Similarly, he concluded that the previous 911 calls
were relevant to rebut any claim of mistake or accident on the
charge of spousal battery. The military judge also concluded
that this evidence was not substantially outweighed by the
danger of unfair prejudice.

A. Principles of Law

     We review a military judge’s evidentiary rulings for an
abuse of discretion.13 When a military judge balances the
competing interests in admitting or excluding evidence, we will
give great deference to a clearly articulated basis for his



11
  Appellate Exhibit XVI at 5-6. Trial counsel argued that these previous
instances of “domestic abuse” were relevant to the appellant’s knowledge and
intent to physically injure his wife without leaving signs of visible abuse.
Record at 86. Although originally described as four previous occasions, the
military judge later clarified that the trial counsel was referring to three
previous instances where police were called over a report of a domestic
disturbance: 2 January 2011, for which the appellant was later convicted of
assault of a female in Onslow County, North Carolina; 31 July 2011 and 28
April 2012. Id. at 86–92. At trial, the Government never offered any
evidence concerning a domestic disturbance on 31 July 2011.
12
  AE XVI at 5. At trial, Mr. G testified that the pistol the appellant
pointed at him was “a black 9[mm] or .45, one of the two.” Record at 394.
13
     United States v. Thompson, 63 M.J. 228, 230 (C.A.A.F. 2006).


                                         5
decision. Conversely, when there is no such clearly articulated
basis, we will be less deferential in our review.14

     Evidence of uncharged misconduct is not admissible to prove
the character of an accused or show that the accused acted in
conformity with a certain character trait. But evidence of
uncharged misconduct may be admissible for other purposes, such
as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, mistake, or accident.15

     The three-part test for admitting evidence under MIL. R.
EVID. 404(b) is set forth in United States v. Reynolds, 29 M.J.
105, 109 (C.M.A. 1989). First, the evidence must reasonably
support a finding that the appellant committed prior crimes,
wrongs, or acts. Second, the evidence must show a fact of
consequence is made more or less probable by the existence of
this evidence. Third, the probative value of the evidence must
not be substantially outweighed by the danger of unfair
prejudice. Id.; see also United States v. Barnett, 63 M.J. 388,
394 (C.A.A.F. 2006).
B. The 2011 Misdemeanor Conviction and the 911 Calls of 1 April
2012, 28 April 2012 and 10 June 2012

     During direct examination, the trial counsel posed several
questions to EB concerning the appellant’s 2011 arrest and
conviction in Onslow County, North Carolina. EB admitted that
she knew her husband was convicted of a crime of domestic
violence but was unaware it prohibited him from owning or
possessing any firearm.16 Trial counsel then queried EB on her
911 call of 1 April 2012, where she reported that her husband
threatened to kill her; her neighbor’s call to 911 on 28 April
2012 reporting spousal abuse; and EB’s 911 call on 10 June 2012
when she reported domestic violence. Many of EB’s responses
were noncommittal or less than forthcoming.
     On the Lautenberg violations, EB described how she
purchased a .45 caliber pistol from a local firearms dealer
based on the recommendation of her husband. Evidence revealed
that her husband in fact attempted to purchase the same model
weapon, a Rock Island 1911 .45 ACP, from the same dealer
approximately one week earlier, but was unable to do so because

14
     United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000).
15
     MIL. R. EVID. 404(b).
16
     Record at 343-44; PE 21.


                                         6
of his disqualifying conviction.17 EB testified that she was
unaware of her husband’s earlier unsuccessful efforts and that
she only purchased the weapon for herself.
     She also described how in May or June of 2012, she drove
his car to the local Wal-Mart. There she placed her pistol in
her purse before she went inside the store. When she came out,
she removed the pistol from her purse and placed it in the
trunk. She then testified that she ultimately left it in the
trunk and failed to inform her husband.18
     When pressed by the trial counsel for details of her
husband’s actions on 10 June 2012, EB denied that he ever
punched or kicked her. She was evasive, despite trial counsel’s
reference to the 911 call where she told the operator that she
wanted to “report a domestic violence” by her husband who
“jumped on [her] and stuff.”19 She did concede that she “might
have been stepped on” and that she might have been struck by the
front door when the appellant shoved his way inside.20 Trial
defense counsel later described this as a “tussle” during
argument21 and the military judge instructed the panel on the
defenses of accident and self-defense.22
      Turning to MIL. R. EVID. 404(b), we begin by noting that some
of this evidence proffered by the Government and admitted by the
military judge was either direct evidence or intrinsic thereto
of an element of a charged offense. In that vein, we find that
EB’s testimony concerning her 911 call on 1 April 2012 and the
recording itself, and her testimony concerning the appellant’s
conviction in Onslow County, North Carolina inapt to our MIL. R.
EVID. 404(b) analysis.23



17
     Id. at 292, 345-46; PE 10, 11.
18
     Record at 344-49.
19
     Id. at 352-54; PE 8.
20
     Record at 352-60.
21
     Id. at 486-87.
22
     Id. at 498-99.
23
  See United States v. Doss, 15 M.J. 409, 412 n.5 (C.M.A. 1983) (recognizing
as a general rule that evidence as to uncharged misconduct ”will be
admissible, if it is part of the same transaction as the crimes with which
the accused is charged”) (citing United States v. Thomas, 11 M.J. 388, 392-93
(C.M.A. 1981)).

                                      7
     However, we find that the military judge erred in admitting
the neighbor’s call to 911 on 28 April 2012 and the related
testimony by EB for the purposes offered by the Government and
ostensibly relied upon by the military judge.24 While EB’s
testimony raised the issue of accidental injuries and the
military judge instructed the panel accordingly, the 911 call of
28 April 2012 provided little rebuttal value to EB’s testimony
that her injuries could have been caused by the apartment door
or during a scuffle over the appellant’s cell phone. The
neighbor who called 911 provided no specific details as to what
happened, what injuries resulted, or who was responsible. This
evidence only provided a generalized picture of domestic
disturbance that the Government later cast as proof of an
ongoing pattern of spousal abuse at the hands of the appellant.25
     Furthermore, the military judge’s limiting instruction at
the beginning of presentation of evidence and during his
instructions on findings offered little guidance on filtering
out any impermissible implication raised.26 The only 404(b)
theories relied upon by the military judge were accident with
respect to the spousal battery offense and knowledge with
respect to the Lautenberg violations. The Government never
raised and the record reveals no issue of identity, motive or
opportunity with respect to any offense. Yet the military judge
instructed the panel that they could consider this evidence for
those purposes and in doing so he erred. See Thompson, 63 M.J.


24
  The military judge concluded that evidence of previous incidents of
domestic violence would rebut any claim of mistake or accident in the charged
offense of assault and battery of EB on 10 June 2012. AE XLVII at 6. The
military judge made no reference to the Government’s additional theory that
this evidence showed an intent and plan to physically abuse EB without
leaving any telltale signs.
25
  Record at 281, 478. The Government also called a forensic psychologist who
testified to the “ongoing cycle of violence” phenomenon in battered spouse
cases, and that in her opinion the abuse to EB “seems to be increasing in
terms of 911 calls and threats of violence.” Id. at 433, 442-443.
26
  Id. at 281-84, 475-84. During his findings instructions, the military
judge advised the members that they may consider evidence of “alleged
incidents on 2 January 2011, 31 [July] 2011, and 28 April 2012 between the
[appellant] and [EB], as well as the alleged incident on 29 April 2012
between the [appellant] and Mr. [G] for the limited purpose of its tendency,
if any, to identify the [appellant] as the person who committed the offenses
alleged . . . . [or] to prove a plan or design by the [appellant] to engage
in the charges and specifications . . . . [or] to prove[] knowledge and
intent . . . [or] motive and opportunity to commit the offenses before you.”
He then proceeded to caution against using this evidence to infer any general
criminal tendency. Id. at 504.

                                      8
at 231 (finding error when a military judge admits 404(b)
evidence for purposes not relevant at trial).
      We also find that the military judge erred in his MIL. R.
EVID. 403 balancing. First, we note that his balancing,
articulated only in his written ruling attached to the record a
month after trial (Appellate Exhibit XLVII), merely recites the
rule. Therefore, we afford his ruling less deference than we
might otherwise.27 The ruling does not articulate the probative
value, the attendant prejudice, or any balancing except to note
that any concern of such prejudice or confusion could be
remedied through a proper limiting instruction. As noted
earlier, the limiting instruction given only added to, rather
than lessened, the risk of confusion and prejudice.
     Here, the probative value of an uncharged domestic
disturbance was relatively low since the Government already
admitted evidence of domestic disturbances on 2 January 2011 and
the two charged occasions: 1 April 2012 and 10 June 2012.
Little was gained by admitting another 911 call concerning a
fourth domestic incident. With so little probative value, the
risk of unfair prejudice rises where the Government painted the
appellant as an abusive husband with increasingly broad brush
strokes.
C. Mr. G’s Testimony

     The admission of evidence concerning the uncharged incident
of 29 April 2012 is more troubling. A former Marine and an
acquaintance of the appellant, Mr. G testified that he went to
the house of Ms. R, someone with whom he previously had an
intimate relationship, that Sunday morning to take their
daughter to church. When he arrived, he recognized the
appellant’s car parked outside. After knocking on the door, Ms.
R turned him away because, as Mr. G explained at trial, she and
the appellant were “having relations at the time.”28 Mr. G then
left.
     Approximately 30 minutes later, he returned, this time to
be accosted by the appellant who “came outside . . .[with] a gun
in his hand. He cocked the gun. He brandished the gun at
[him], walked around [him], saying a couple of words.”29 Moments
later Mr. G explained that the appellant said “act tough now”
27
     Barnett, 63 M.J. at 396.
28
     Record at 394.
29
     Id. at 392-93.


                                9
and that he “cocked his gun and he pointed it at [him] . . .
[from] [p]robably eight feet [away].”30 Mr. G described the
weapon in the appellant’s hand that day as “a black 9[mm] or a
.45, one of the two.”31
     EB’s testimony that she purchased the Rock Island .45 ACP
and that she put it in the trunk of the appellant’s car
reasonably raised the issue of the appellant’s knowledge, at
least as to possession of the .45. Therefore, Mr. G’s testimony
putting a similar weapon in the appellant’s hand a month and a
half earlier had some probative value. Our concern, however, is
solely with the third Reynolds prong and the highly prejudicial
circumstances surrounding this incident placed squarely before
the members.
     Prejudice in the context of MIL. R. EVID. 403 is defined as
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.’”32 Despite the defense
pretrial motion raising this concern, the military judge
displayed very little sensitivity to potential prejudice arising
from this evidence. He articulated no balancing on the record
at the time of his ruling, and his written findings and
conclusions attached to the record after trial give little
insight. Consequently, we grant less deference.33
     The only issue in dispute was whether the appellant knew
that the two pistols and ammunition were in the trunk of his
car. But any limited inferential value of Mr. G’s testimony was
quickly overwhelmed amidst details of a cheating husband and an
aggressive provocateur threatening Mr. G with a presumably
loaded pistol. The unfair prejudice arising from these
unnecessary and inflammatory details far outweighed the
similarity between this “9 or .45” and the .45 ACP later seized
from the appellant’s car. Furthermore, the military judge’s
overly expansive limiting instruction made matters worse.
     Considering that the trial counsel highlighted the
appellant’s provocative and belligerent response to Mr. G during


30
     Id. at 394, 398.
31
     Id. at 394.
32
  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)).
33
     United States v. Berry, 61 M.J. 91, 96 (C.A.A.F. 2005).


                                        10
both opening statement and closing argument,34 the risk of
improper influence upon the members from this evidence is simply
too great.35 Applying the appropriate amount of deference, we
find that the military judge erred in his MIL. R. EVID. 403
balancing test by admitting these highly prejudicial details in
Mr. G’s testimony that offered no probative value.
D. Material Prejudice

     Having determined that the military judge abused his
discretion by admitting evidence of the 911 call on 28 April
2012 and the incident with Mr. G, we must determine next whether
these errors materially prejudiced the substantial rights of the
appellant.36 For errors of a non-constitutional dimension, the
Government bears the burden of demonstrating that the error did
not substantially influence the findings or sentence.37 We make
our determination by evaluating: “(1) the strength of the
Government’s case, (2) the strength of the defense case, (3) the
materiality of the evidence in question, and (4) the quality of
the evidence in question.”38
     The Government’s case overall was strong. The only
disputed issue as to the Lautenberg offenses was the appellant’s
knowledge of possession. Evidence was admitted showing that he
attempted to purchase the very same .45 ACP nine days before his
wife’s successful purchase of the same type of firearm.
Although EB testified that the .45 ACP was “hers” and that she
placed it in the appellant’s trunk without his knowledge, her
testimony lacked credibility. As to the remaining .380 pistol,
knowledge of possession was not reasonably in dispute since a
witness testified placing that weapon in the appellant’s trunk
34
  Record at 281-82, 478-79. Trial counsel highlighted the aggressive nature
of the appellant’s conduct arguing “and the [appellant] does not care for
[Mr. G’s interruption], because he and Ms. [R] apparently need their alone
time. So he comes out the front door and points a .45 at Mr. [G’s] chest.
Not only does he point it at him, but Mr. [G] can hear it cocked. And Mr.
[G] testified, he then told him, ‘Act tough now, act tough now.’” Id. at
478-79.
35
  “[T]here are some contexts in which the risk that the jury will not, or
cannot, follow instructions is so great, and the consequences of failure so
vital to the defendant, that the practical and human limitations of the jury
system cannot be ignored.” Bruton v. United States, 391 U.S. 123, 135 (1968)
(citations omitted).
36
     Art. 59(a), UCMJ.
37
     Berry, 61 M.J. at 97.
38
  Barnett, 63 M.J. at 397 (quoting United States v. Kerr, 51 M.J. 401, 405
(C.A.A.F. 1999)).

                                     11
with his permission. Finally, witnesses from the appellant’s
command described the appellant’s earlier suspicious behavior
when they escorted him to retrieve some personal items from the
trunk of his car.
     On the remaining offenses for assaulting and threatening
EB, the Government’s case was still strong despite EB’s often
inconsistent and uncooperative testimony. EB did admit that her
husband “threatened to shoot [her]” and “at the time, [she]
thought he was serious, but now [she doesn’t] believe he would
do it.”39 Her 911 call of 1 April 2012 played for the members
corroborated this testimony. While she was uncooperative at
times with the trial counsel, her obvious bias toward her
husband enhanced her credibility on the points of her testimony
that aligned with the Government’s theory.
     The defense case, on the other hand, was not as strong.
Trial defense counsel rested without presenting any case-in-
chief, instead relying on cross-examination, the presumption of
innocence, and the burden of proof.
     Evidence of the appellant’s predisposition, however,
whether in the form of uncharged acts of domestic disturbance or
evidence of a violent character as seen through Mr. G’s
testimony, went directly to a principal issue in the case; the
appellant’s abusive nature toward his wife. Indeed, the
appellant’s abuse of his wife was the focus of the Government’s
forensic psychologist who testified to the common characteristic
of a battered spouse and the increasing risk of abuse to EB.
True, trial defense counsel referred to the altercation between
EB and the appellant as a “tussle” and the military judge
instructed the panel on the defenses of accident and self-
defense. But the Government effectively handed the members a
canvas with the appellant painted as an abusive and aggressive
individual prone to extreme responses to seemingly mild
provocation. This evidence is exactly the type of “new
ammunition” on a fact at trial that increases the risk of
prejudicial error.40
     The role this evidence played at trial, particularly the
incident with Mr. G, was significant. During closing argument,
39
     Record at 350.
40
  See United States v. Yammine, 69 M.J. 70, 78 (C.A.A.F. 2010)
(distinguishing between a “fact already obvious from . . . testimony at
trial” and evidence that provides “new ammunition” the latter increasing the
chances of prejudicial error) (internal quotation marks and citation
omitted).


                                     12
trial counsel mentioned both the 28 April 2012 911 call and Mr.
G’s testimony. Regarding Mr. G, the trial counsel recounted the
whole story, emphasizing that in order to secure his “alone
time” with Ms. R, the appellant pointed and cocked a “.45” at
Mr. G’s chest.41 In rebuttal argument, trial counsel reiterated
the theme of ongoing violence in the marriage citing their
forensic psychologist’s testimony describing a “cycle of
violence.”42 The total effect was to paint a picture, reinforced
by expert testimony, that the appellant had an abusive and
violent nature, and thus more likely acted in conformity
therewith.
     This picture of an abusive and violent predisposition
carried over into sentencing. In arguing for sentence, the
assistant trial counsel alluded to the appellant’s unsavory
nature and argued that five year’s confinement would send a
message to other Marines:
        that [sic] may like to dabble in some sort of
        lifestyle, you know, trying to be something that
        they’re not supposed to be, not a stand-up guy in a
        Marine [sic] and a father and a husband, but a punk
        running around with weapons loaded, acting foolish,
        doing things that sully our reputation, our uniform,
        and our standards.43

The members then returned a sentence of fifteen year’s
confinement – tripling the Government’s recommended sentence of
five years.

     Given the inflammatory nature of Mr. G’s testimony, the
Government’s emphasis on the unnecessary and prejudicial details
it offered, and the military judge’s erroneous limiting
instruction, we conclude that the Government has not met its
burden of establishing that the improperly admitted evidence did
“did not have a substantial influence on the findings.”44 We
also find the error materially prejudiced the sentence.
                           False Official Statement


41
     Record at 478.
42
     Id. at 491.
43
     Id. at 523 (emphasis added).
44
  United States v. McCollum, 58 M.J. 323, 342 (C.A.A.F. 2003) (citation
omitted).


                                      13
     We next turn to the question of the appellant’s conviction
for his statement to Gunnery Sergeant (GySgt) N and GySgt T,
following his IRO hearing, that “he didn’t even own a weapon.”
We review factual and legal sufficiency de novo.45 The test for
legal sufficiency is whether, “considering the evidence in the
light most favorable to the prosecution, any reasonable fact-
finder could have found all the essential elements beyond a
reasonable doubt.”46 For factual sufficiency, we must be
ourselves convinced of the appellant’s guilt beyond a reasonable
doubt taking into account that the trial court saw and heard the
witnesses.47

     Article 107, UCMJ, criminalizes the making of false
official statements. “[T]o determine whether a false statement
is official, or capable of perverting authorized military
functions, ‘the critical distinction is . . . . whether the
statements relate to the official duties of either the speaker
or the hearer . . . .’”48

     Shortly before calling GySgt T, trial counsel proffered
that GySgt T was “the Legal Officer of . . . VMFA-312 [and] was
executing [his] duties per the IRO hearing” when the appellant
allegedly made his statement.49 However, when GySgt T took the
stand his testimony took a slightly different turn. He
testified that this conversation occurred following the IRO
hearing, back at the command headquarters. The appellant, GySgt
T, and GySgt N were sitting in GySgt T’s office eating
sandwiches while awaiting the completion of the IRO’s report.
GySgt T described the conversation as follows:

        As we were sitting there eating, we were sort of going
        over some things that were said in the hearing and
        Gunnery Sergeant [N] and I were just trying to get a
        grasp on what was going on and different things of
        that nature and you know, we didn’t – we never read


45
     United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).
46
  United States v. Day, 66 M.J. 172, 173-74 (C.A.A.F. 2008) (citing United
States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987)).
47
     Washington, 57 M.J. at 399; see also Art. 66(c), UCMJ.
48
  United States v. Spicer, 71 M.J. 470, 474 (C.A.A.F. 2013) (quoting Day, 66
M.J. at 174).
49
     Record at 304.


                                        14
        him his rights because we weren’t questioning him. We
        were just talking to him trying to make sure that we,
        as his Staff NCOS, were taking care of him. And we
        were sort of going over what was [] said in the
        hearing and [the appellant] was saying different
        things and then one of the things that he said was,
        ‘They brought up me yielding a weapon in 2008 and I
        don’t even own a weapon.’ So, you know, which made us
        think, like I said, we were just trying to figure out
        what was going on, what was our best course of action
        to help him and things of that nature.50

     When GySgt N took the stand, he corroborated much of GySgt
T’s testimony. However, on cross-examination, he described a
conversation whereby GySgt T asked the appellant if “he had
anything illegal” in his car and likened the conversation to “an
amnesty period.”51

     While these conflicting accounts paint a confusing picture
of what exactly was said, the two clearly had an official duty
to keep custody of the appellant. But an informal conversation
over sandwiches, one that GySgt T characterized as having
nothing to do with his function as the legal officer, bore no
bearing to any dialogue necessary to the appellant’s detention.

     We therefore conclude that this statement lacked
officiality within the meaning of Article 107, UCMJ. The
appellant’s conviction for making a false official statement is
therefore legally insufficient.

                                Conclusion

     The findings and sentence are set aside. Charge II and its
sole specification (false official statement) are dismissed with
prejudice. The record of trial is returned to the Judge



Advocate General of the Navy.        A rehearing on the remaining
charges is authorized.


50
  Moments later, GySgt T confirmed that he was not acting in his duties as
the command legal officer when the appellant made this statement. Id. at
308-09.
51
     Id. at 338.


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Judge MCFARLANE and Judge MCDONALD concur.

                           For the Court



                           R.H. TROIDL
                           Clerk of Court




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