          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                             Airman First Class TYLER W. WARD
                                   United States Air Force

                                               ACM 38412

                                           11 February 2015

         Sentence adjudged 7 May 2013 by GCM convened at Travis Air Force
         Base, California. Military Judge: W. Shane Cohen (sitting alone).

         Approved Sentence: Bad-conduct discharge, confinement for 3 years,
         reduction to E-1, and a reprimand.

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

         Appellate Counsel for the United States: Major Roberto Ramírez;
         Captain Thomas J. Alford; and Gerald R. Bruce, Esquire.

                                                  Before

                            MITCHELL, WEBER, and CONTOVEROS
                                  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          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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.



CONTOVEROS, Judge:

       At a general court-martial composed of a military judge sitting alone, the appellant
was convicted, contrary to his pleas, of one specification of forcible sodomy, in violation
of Article 125, UCMJ, 10 U.S.C. § 925. He was sentenced to a bad-conduct discharge,
confinement for 3 years, reduction to E-1, and a reprimand. The convening authority
approved the sentence as adjudged.
       Before us the appellant raises two assignments of error1: (1) his conviction is
legally and factually insufficient and (2) the military judge committed plain error by
allowing improper bolstering of the victim’s testimony. The appellant alternatively casts
his second assignment of error as an ineffective assistance of counsel claim. Finding no
error materially prejudicial to the appellant, we affirm.

                                                 Background

        Airman First Class (A1C) PW met the appellant on her first day of technical
training at Fort Sam Houston, Texas. About a month later, the appellant asked A1C PW
to be his girlfriend, to which she happily agreed. The two began a dating relationship
which regularly involved sexual intercourse. The appellant departed for his duty station,
Travis Air Force Base (AFB), California, a few weeks later. The two continued their
dating relationship long distance, communicating by text message and telephone.
According to A1C PW, these conversations were sometimes “really pleasant,” but at
other times the appellant accused her of cheating on him and made “demands for [her] to
do certain things.” When she and the appellant engaged in “phone sex,” A1C PW said
she was both disgusted and fearful when the appellant began expressing sadistic sexual
fantasies.

        A1C PW later visited the appellant at Travis AFB because she attributed his
demands and sexual behavior to his being under stress, and she thought she could “fix
him.” When she flew into San Francisco, the appellant met her at the airport’s baggage
claim and proposed to her. As she had recently discovered she was pregnant with his
child, she was happy with the proposal and thought they would be a family.

       The next day, however, the appellant became violent. When A1C PW would not
do what he wanted during sex, she testified the appellant grabbed her by the hair and
slammed her face into the bed. She testified that the more she refused to do certain acts,
the more he would continue slamming her face into the bed and then he would punch the
mattress or the wall next to her head. Another night, while having sex, the appellant
began talking about anal sex and how much he wanted to try it with A1C PW. She
expressed her misgivings, having heard it could hurt or even result in a trip to the
emergency room if not done correctly. She stated she ultimately complied with the
appellant’s request because he was getting angry.

1
  In his original assignments of error, the appellant also alleged that the record of trial was incomplete because
Defense Exhibits A and B were missing. The Government has since provided these two exhibits, and they have
been added to the record of trial. Accordingly, this assignment of error has been rendered moot. See United States
v. Lashley, 14 M.J. 7, 9 (C.M.A. 1982) (stating that the presumption of prejudice from substantial omissions may be
overcome by the retrieval of the missing material). However, we take this opportunity to remind trial counsel of
their responsibility to ensure a complete record of trial, to include the presence and proper functioning of any
applicable electronic media. See Rule for Courts-Martial 1103.




                                                        2                                            ACM 38412
       The following day, the appellant repeatedly texted A1C PW, telling her how much
he enjoyed the anal sex and wanted to do it again. A1C PW told him she was in pain 2
and did not want to do it again. When the appellant continued to talk about anal sex,
A1C PW repeatedly told him no. That night, while the two were engaged in sexual
intercourse, the appellant began talking about anal sex again. A1C PW continued to say
no. The appellant then said, “What if I just take it?” and penetrated A1C PW’s anus with
his penis.

                                       Legal and Factual Sufficiency

        We review issues of factual sufficiency de novo. Article 66(c), UCMJ, 10 U.S.C.
§ 866(c); United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The test for
factual sufficiency is “whether, after weighing the evidence in the record of trial and
making allowances for not having personally observed the witnesses, [we ourselves are]
convinced of the accused’s guilt beyond a reasonable doubt.” United States v. Turner,
25 M.J. 324, 325 (C.M.A. 1987). In conducting this unique appellate review, 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.

       The test for legal sufficiency of the evidence is “whether, considering the evidence
in the light most favorable to the prosecution, a reasonable factfinder could have found
all the essential elements beyond a reasonable doubt.” Turner, 25 M.J. at 324. “[I]n
resolving questions of legal sufficiency, we are bound to draw every reasonable inference
from the evidence of record in favor of the prosecution.” United States v. Barner,
56 M.J. 131, 134 (C.A.A.F. 2001) (citing United States v. Rogers, 54 M.J. 244, 246
(C.A.A.F. 2000)).

       The appellant argues his conviction is legally and factually insufficient as he and
A1C PW regularly engaged in “non-traditional sexual behavior,” to include a “rape
fantasy” in which A1C PW would protest despite being a willing participant. During the
sodomy at issue, he argues, A1C PW originally protested “much like she did at other
times during their ‘rape fantasy’ sessions,” and when A1C PW continued to protest he
did, in fact, stop. The appellant points to the fact that they were married two days after
the sodomy at issue and also questions the timing of A1C PW’s allegation because it
arose after the appellant threatened to take custody of their child.


2
 Airman First Class (A1C) PW testified that during the anal sex, she felt pain that she rated it a “9” on a 1 to 10
scale (10 being the worst).




                                                           3                                             ACM 38412
       The elements of forcible sodomy under Article 125, UCMJ, applicable to the
charged time frame3 are: (1) that the accused engaged in unnatural carnal copulation with
a certain other person and (2) that the act was done by force and without the consent of
the other person. Manual for Courts-Martial, United States (MCM), Part IV, ¶ 51.b.
(2012 ed.). “Unnatural copulation” includes one “plac[ing] that person’s sexual organ in
the mouth or anus of another person.” MCM, Part IV, ¶ 51.c.

        Independently reviewing the evidence of record and making allowances for not
having personally observed the testimony of the witnesses, we are personally convinced
of the appellant’s guilt beyond a reasonable doubt. Although one of the couple’s
previous sexual interactions had involved a “rape fantasy” of the appellant, that instance
did not involve anal sex. A1C PW never agreed to participate in an anal rape fantasy, but
rather, expressed her misgivings the first time the appellant began asking to engage in
anal sex. Although she agreed to it once, A1C PW experienced significant pain and
discomfort, and the following day she could not have been clearer in expressing to the
appellant her unwillingness to try it again. The manner in which the appellant said that
he would “just take it” before pinning A1C PW to the bed to commit the offense, and his
later admission that he remembered her saying “no” and telling him to stop,4 leaves us
with no reasonable doubt as to the appellant’s guilt. Moreover, drawing every reasonable
inference in the light most favorable to the prosecution, a reasonable factfinder could
clearly find both elements of the offense beyond a reasonable doubt.

                                       Government Expert Testimony

       At trial, the Government called an expert in clinical and forensic psychology. The
appellant contends the expert’s testimony regarding the victim’s “learned helplessness” to
explain the victim’s behavior improperly bolstered her testimony when she had not been
“adequate[ly] impeach[ed].” Trial defense counsel did not object to this testimony, 5 and

3
  Article 125, UCMJ, 10 U.S.C. § 925, was subsequently amended by the National Defense Authorization Act for
Fiscal Year 2014, Pub. L. 113-66, § 1707 (2013).
4
  As part of the investigation into the initial allegation, the Air Force Office of Special Investigations asked A1C PW
to participate in a pretext phone call to the appellant. During that phone call, A1C PW asked the appellant if he
remembered “the night he wanted anal and [she] didn’t.” When he said he did, she asked him: “Do you remember
how I kept saying ‘No’ and telling you to stop?” When the appellant said he remembered, she asked him why he did
that. The appellant replied, “Because I’m an idiot, but it’s not going to happen again.”
5
  The appellant does not raise as error the expert witness’s testimony regarding “perpetrator behavior in a
relationship” and “the pattern of behavior [of] a perpetrator.” However, we are confident the military judge properly
disregarded this evidence. See Mil. R. Evid. 404(a); United v. Dimberio, 52 M.J. 550, 558 (A.F. Ct. Crim. App.
1999) (“Evidence which tends to show that the typical perpetrator of a crime possesses certain traits or
characteristics and that an accused possesses the same traits or characteristics is generally not admissible . . . .”).
The military judge identified the issue sua sponte and told trial counsel:

                  [A]t certain times, as Judge, I’ve got to step in myself and say, “Hey, hold on a
                  second.” The rules are there for a reason; we’ve got to play by the rules. . . .
                  [C]reating a picture of the accused, without him opening the door to a character




                                                          4                                             ACM 38412
the appellant argues that the military judge’s admission of this evidence constitutes plain
error. The appellant also alleges, without argument, that trial defense counsel were
ineffective.

        Where an appellant has not preserved an objection to evidence by making a timely
objection, we review for plain error. United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F.
2014). Under plain error jurisprudence, the appellant “has the burden of establishing
(1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial
rights.” Id.

        The appellant argues that a “right to bolster” does not arise merely by a witness
testifying but requires at least “an extensive, slashing cross-examination,” citing
United States v. Everage, 19 M.J. 189, 192 (C.M.A. 1985), and United States v. Halsing,
11 M.J. 920 (A.F.C.M.R. 1981). The cases cited by the appellant, however, refer to the
admissibility of evidence of truthful character under Mil. R. Evid. 608(a), which provides
that such evidence can be admitted only after the witness’s character for truthfulness has
been attacked.       In Everage, for example, the court observed that not every
cross-examination opens the door to bolstering with such an attack; sometimes the
cross-examiner seeks instead to establish that a witness’s observation is flawed, her
memory is poor, or her testimony is ambiguous—despite the witness being
well-intentioned. 19 M.J. at 193. Only when “the tenor of the cross-examination can be
characterized as an attack on the witness’ veracity” can evidence of truthful character be
offered to rehabilitate the witness under Mil. R. Evid. 608(a)(2). Id.

       This Rule, however, is not implicated by the expert’s testimony in this case.
While the appellant characterizes the expert’s testimony as having “improperly bolstered
the complaining witness’s testimony,” the expert did not comment on A1C PW’s
character for truthfulness. Rather, the expert testified that victims of domestic violence
frequently remain in abusive situations, why they remain in such situations, the concept
of “intermittent re-enforcement,” the concept of “learned helplessness,” and finally his
opinion that “it wouldn’t surprise [him] if the idea of learned helplessness might have
explained [A1C PW’s] behavior.” This testimony provided an opinion regarding a
psychological explanation for A1C PW’s behavior. It did not involve commentary on her
character for truthfulness either in the form of the expert’s belief she was a truthful
person or that he was familiar in any way with her reputation for such. The only manner
in which the expert’s testimony could be said to “bolster” the victim’s testimony is in a
colloquial sense, but such an equivocation of the term “bolster” is inapposite to
Mil. R. Evid. 608(a)(2).



              trait, which is really what this is, this is character testimony of the accused, you
              can’t do it until they open the door.




                                                       5                                             ACM 38412
       The appellant urges us to draw a parallel to United States v. Dollente, 45 M.J. 234
(C.A.A.F. 1996), arguing that, as in Dollente, this case involves a “piling on” of
impermissible expert testimony to bolster an alleged victim’s credibility. We disagree
with the comparison. In Dollente, our superior court reversed a conviction under the
cumulative error doctrine where an expert witness testified, among other things, about the
victim’s credibility. 45 M.J. at 243. The expert in that case stated, for example, that he
administered tests that indicate whether the witness was “the type of person who would
deliberately misconstrue or deliberately exaggerate things” and “the testing or the
interview showed no signs of that.” Id. at 239. Such testimony, the court observed, was
error because it “effectively placed the expert’s favorable opinion of the victim’s
credibility before the members and provided support to the prosecution’s case.”
Id. at 239–40 (citing United States v. Suarez, 35 M.J. 374, 376 (C.M.A. 1992)). An
expert cannot testify about his or her belief that a witness is telling the truth and thereby
“usurp the exclusive function of the jury to weigh the evidence and determine
credibility.” United States v. Harrison, 31 M.J. 330, 332 (C.M.A. 1990) (quoting
United States v. Samara, 643 F.2d 701, 705 (10th Cir. 1981)) (internal quotation marks
omitted).

       In this case, the expert witness did not comment on A1C PW’s credibility, nor did
he state that he found her credible. Rather, his testimony involved specialized knowledge
that could “assist the trier of fact to understand the evidence,” see Mil. R. Evid. 702,
providing an explanation for A1C PW’s seemingly contradictory behavior—e.g.,
marrying the perpetrator. Our superior court has made it clear that in sexual assault
cases, expert testimony about what might be considered counterintuitive behavior of the
victim is permitted because it assists the finder of fact in “disabusing themselves of
widely held misconceptions.” United States v. Flesher, 73 M.J. 303, 313 (C.A.A.F.
2014) (quoting United States v. Houser, 36 M.J. 392, 398–99 (C.M.A. 1993)) (internal
quotation marks omitted). We find no error in the military judge admitting this evidence,
plain or otherwise. Had trial defense counsel objected to the expert testimony at trial, it
almost certainly would have been overruled. Additionally, where trial defense counsel
challenged on cross-examination the basis for the expert witness’s opinion and
highlighted differences between cases of “learned helplessness” cited by the expert and
the circumstances present in this case, we find an allegation of ineffective assistance of
counsel to be entirely without merit.

                                                Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred.6 Articles 59(a)

6
  Apart from the assigned issues, we specifically considered the appropriateness of the appellant’s sentence. In
addition, we considered our authority under Article 66(c), UCMJ, 10 U.S.C. § 866(c), to disapprove a legally and




                                                       6                                          ACM 38412
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and
sentence are AFFIRMED.



                 FOR THE COURT


                 STEVEN LUCAS
                 Clerk of the Court




factually sufficient conviction that we find should nonetheless not be approved. See United States v. Nerad, 69 M.J.
138, 147 (C.A.A.F. 2010). We decline to grant relief on either basis.




                                                         7                                            ACM 38412
