UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                            MULLIGAN, HERRING, and BURTON
                                Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                       Private (E-1) ZACHARY A. BENNETT
                           United States Army, Appellant

                                      ARMY 20121072

                      Headquarters, III Corps and Fort Hood
                         Patricia H. Lewis, Military Judge
    Lieutenant Colonel Craig E. Merutka, Acting Staff Judge Advocate (pretrial)
              Colonel Ian G. Corey, Staff Judge Advocate (post-trial)


For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain
Patrick J. Scudieri, JA (on brief); Major Christopher D. Coleman, JA; Captain
Patrick J. Scudieri, JA (on supplemental assignment of error).

For Appellee: Colonel Mark H. Sydenham, JA; Major Daniel D. Derner, JA; Captain
Nathan S. Mammen, JA (on brief); Major Daniel D. Derner, JA; Captain Nathan S.
Mammen, JA (on supplemental brief).


                                         30 June 2016

                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

BURTON, Judge:

       A panel with enlisted representation, sitting as a general court-martial
convicted appellant, contrary to his pleas, of one specification of attempted sodomy,
one specification of disobeying a lawful order of a noncommissioned officer, two
specifications of indecent act, two specifications of rape, one specification of
obstruction of justice, and one specification of communicating a threat, in violation
of Articles 80, 91, 120, and 134, Uniform Code of Military Justice, 10 U.S.C. §§
BENNETT—ARMY 20121072

880, 891, 920, 934 (2006 & Supp. IV; 2006 & Supp. V) [hereinafter UCMJ]. 1 The
panel sentenced appellant to a dishonorable discharge, confinement for nine years
and nine months, and a total forfeiture of all pay and allowances. The convening
authority approved the sentence as adjudged and credited appellant with 299 days
toward his confinement.

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises six assignments of error, four of which merit discussion, 2 and two of which
merit relief. 3

                                         FACTS

                        A. Facts Underlying Substantive Offenses

                                 1. Rape of Specialist DC

       Appellant, while performing charge of quarters (CQ) duty in early November
2011, told Specialist (SPC) DC that he wanted to show her something. Appellant
opened a photo of his penis on his phone and handed it to SPC DC. 4 Several days
later, while SPC DC was in her barracks room packing for an upcoming deployment,

1
  After pleas but before findings, the military judge granted the government’s motion
to dismiss one specification alleging a violation of a lawful general order and one
specification of indecent act in violation of Articles 92 and 120, UCMJ. Before
findings, the military judge granted a defense motion pursuant to Rule for
Courts-Martial [hereinafter R.C.M.] 917 for a finding of not guilty to one
specification each of conspiracy to commit tax fraud, violating a lawful general
order, aggravated sexual assault, and wrongfully attempting to evade a tax, in
violation of Articles 81, 92, 120, and 134, UCMJ. The panel found appellant not
guilty of one specification each of aggravated sexual assault and wrongful sexual
contact in violation of Article 120, UCMJ.
2
 We find no merit to appellant’s fourth assignment of error which asserts the
cumulative impact of the errors in this case warrants a new trial. We also find no
merit in appellant’s supplemental (sixth) assignment of error. See United States v.
Rapert, 75 M.J. 164 (C.A.A.F. 2016).
3
  The matters personally raised by appellant pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982), that are not otherwise mirrored in counsel’s assignments
of error are without merit.
4
    This case is distinguishable from the conduct alleged in United States v. Williams,

                                                                        (continued . . .)
                                            2
BENNETT—ARMY 20121072

appellant came by and repeatedly asked her to have sex with him. Specialist DC was
in a relationship with a female and initially declined appellant’s requests. She
eventually relented and engaged in sexual intercourse with appellant in hopes that he
would leave her alone.

       A few days later, appellant showed up at SPC DC’s room and again asked her
to have sex with him, stating he was “nervous the first time” and “the second time it
will be better.” Specialist DC declined appellant’s request. Undeterred, the
appellant approached SPC DC from behind and pushed her against her bed, onto her
hands. While appellant’s body weight was on SPC DC, he pulled down her shorts
and attempted to insert his penis into her anus. Failing in that effort, appellant
inserted his penis into her vagina.

                                   2. Indecent Act

       On 22 January 2012, appellant, Ms. AT, and Ms. KC gathered at Private First
Class (PFC) MG’s apartment, where they all proceeded to drink alcohol. At some
point, the group reposed to PFC MG’s bedroom. Eventually, PFC MG and Ms. KC
began making out. Appellant photographed Ms. KC kissing, digitally penetrating,
and orally sodomizing PFC MG. Neither Ms. KC nor PFC MG consented to
appellant taking these photographs. Ms. AT, at this point feeling uncomfortable, left
the room.

                                  3. Rape of Ms. AT

     Appellant’s conviction for raping Ms. AT stemmed from his actions
immediately following the incident in PFC MG’s bedroom.

       Appellant followed Ms. AT out of the bedroom and offered to have sex with
her. After Ms. AT declined his request, appellant told Ms. AT that he was going to
meet another woman and asked Ms. AT if she had a condom. Ms. AT found a
condom in the bedroom and gave it to appellant. She then went to pick up her cell
phone. Ms. AT testified that as she was bending over to pick up her phone appellant
approached her from behind, and as he was breathing on her neck, stated, “[y]ou
know you want this big dick.” Appellant then proceeded to rape her. During the
assault, appellant had his body weight on Ms. AT and had his arm above her chest,
parallel to her body.
       Although Ms. AT had drank alcohol and smoked marijuana that evening, her
testimony did not indicate that she was thereby incapacitated. Ms. AT testified that


(. . . continued)
75 M.J. 663 (Army Ct. Crim. App. 2016), where this court held that showing
someone a picture of a penis is not indecent exposure. In this case, appellant is
charged with an indecent act.
                                          3
BENNETT—ARMY 20121072

she felt fine after combining the alcohol and marijuana, and then later she “started
feeling real funny” as she was having “like hot flashes” and “[her] heart was
racing.” She did not believe these feelings came from the mixture of alcohol and
marijuana. She told appellant “[n]o, I don’t want it” and described her reaction
during the assault as:

             freaking out [and] and feel[ing] funny . . . . [m]y eyes are
             open, I can’t see nothing [sic], I’m hot, I’m cold, I’m
             pissed off, I’m sad, I feel sexually aroused one minute,
             then I feel just my heart was beating out of my chest, just
             like I was feeling all these different emotions at this time
             like, just a whole bunch of stuff.

      Ms. AT resisted appellant by telling him “no get off me” and kicking him
away from her. She testified that while appellant assaulted her, she “[couldn’t] see
nothing [sic] but black and white spots everywhere.”

             4. Failure to Obey Order from a Noncommissioned Officer

       In an unrelated offense, Sergeant (SGT) LC, while serving as the CQ
noncommissioned officer, discovered appellant’s door was unsecure. Following
standard procedures for handling an unsecured door, SGT LC entered the room to
ensure the safety of the occupants. Finding the room empty, SGT LC started to
leave the room when he observed a “pipe” on the desk of appellant’s roommate.
Sergeant LC later instructed appellant not to touch anything in his room, an order
appellant disobeyed.

                               B. Evidentiary Rulings

             1. Appellant’s Statement and Military Rule of Evidence 413

       On 15 July 2011, appellant provided a sworn statement to Special Agent (SA)
MB of the U.S. Army Criminal Investigation Command (CID). In this statement,
appellant admitted to sexually assaulting another female, Ms. ME, on 15 June 2011.
Ms. ME called appellant that day to request a ride to her mother’s home. Appellant
picked her up, but instead of taking her to her desired location he took her to his
barracks room. While in his room, appellant began kissing her. Appellant ignored
Ms. ME when she said “I can’t do this,” continued to kiss her, and proceeded to
lower the straps of her shirt as he kissed and fondled her breast. Appellant then put
his hand in Ms. ME’s pants. She grabbed his hand and told him he “had to stop.”
Appellant then stopped and soon thereafter dropped Ms. ME off on post.
Appellant’s statement also indicated he had engaged in other misconduct to include
driving while intoxicated, adultery, and making a false official statement.


                                           4
BENNETT—ARMY 20121072


       Prior to trial, the government filed a motion to admit appellant’s statement to
CID pursuant to Military Rule of Evidence [hereinafter Mil. R. Evid.] 413. The
government proffered that appellant’s statement concerning Ms. ME was admissible
for purposes of the sexual assault charges before the court. After considering the
arguments of trial and defense counsel, the military judge ruled the appellant’s
statement was admissible.

             Okay, based on the motions - - - the information contained
             in the motions, doing the balancing test and following the
             factors of [Mil. R. Evid.] 413, I find that the evidence is
             relevant and also that the probative value of the evidence
             is not substantially outweighed by unfair prejudice. It is
             considered - - - it is a sexual assault. The act in and of
             itself would be punishable under the UCMJ and based on
             the - - - I don’t find that there are any - - - by introducing
             this evidence it will not confuse the issues and I don’t find
             any evidence of it being cumulative based upon what has
             been presented here in court today. So that will be
             allowed and the government’s motion is granted, solely
             with respect to the acts on that specific individual.

       During the government’s case in chief, the military judge admitted appellant’s
statement to CID in its entirety as a prosecution exhibit. Defense counsel did not
request the misconduct unrelated to the assault of Ms. ME be removed or otherwise
register an objection to the admission of this exhibit.

          2. Motion to Suppress Appellant’s Statements and Amended Flyer

       At trial, defense counsel moved to suppress various statements made by
appellant to Sergeant First Class (SFC) DW and Sergeant (SGT) LC. The statements
by appellant to SFC DW concerned the appellant’s tax returns, which were the basis
for the Specification of Charge II (attempted tax evasion) and Specification 2 of
Charge VII (also related to tax evasion), and photography of PFC MG and Ms. KC,
which was the basis for Specification 2 of Charge V. The statements by appellant to
SGT LC concerned the possession of drug paraphernalia, use of drugs, and attempted
destruction or loss of a drug pipe found in appellant’s room. These statements were
relevant to Charge III and its Specification (disobeying an order from a
noncommissioned officer), Specifications 1 and 2 of Charge IV (use of synthetic
cannabis and possession of a pipe to facilitate using the drug), and Specification 1 of
Charge VII (obstruction of justice).




                                           5
BENNETT—ARMY 20121072

      After hearing all of the evidence and argument, the military judge stated:

             I plan to answer all of them in one fell swoop, but now
             that you guys have given me two additional cases, in
             fairness to both sides, I need to sit down and read both
             Phillips and Ford in their entirety to ensure that we are
             tracking, and respond to you no later than tomorrow
             morning.

       During the next court session, the government dismissed Specification 1 of
Charge IV. 5 Trial counsel then asked the military judge if she had reconsidered her
“previous ruling” concerning “certain evidence,” an apparent reference to the
previous motion hearing. The military judge then indicated she had reconsidered her
decision to suppress “certain evidence” and denied the government’s request. The
military judge did not announce on the record her ruling on the motions to suppress
appellant’s statements to SFC DW and SGT LC, nor did she append written findings
of fact and conclusions of law as an appellate exhibit.

       During its case in chief, the government did not use any of the statements to
SFC DW and SGT LC that were the subject of defense counsel’s motions in limine.
In fact, SFC DW did not testify. At the close of the government’s case on findings,
defense counsel moved for a finding of not guilty pursuant to Rule for Court-Martial
[hereinafter R.C.M.] 917 as to the Specification of Charge II, Specification 2 of
Charge IV, Specification 2 of Charge VII, and the Specification of The Additional
Charge. After granting these motions, the military judge directed trial counsel to
prepare a new flyer for the panel with the four dismissed specifications removed.
Only the original flyer with the charges initially referred is in the record.

                                   C. Instructions

       At the close of evidence on findings, the military judge discussed with
counsel the instructions she intended to provide the panel concerning the charges
and specifications still remaining after her ruling on the R.C.M. 917 motion. After
discussing proposed instructions, neither the government nor the defense raised an
objection or asked the military judge for additional instructions to what she
proposed, and ultimately provided to the panel.




5
 This specification alleged appellant violated paragraph 4(a) of Command Policy
SJA-03, dated 13 May 2010, by wrongfully using synthetic cannabis.

                                          6
BENNETT—ARMY 20121072

                              1. Mil R. Evid. 413 Evidence

       The military judge did not instruct the panel as to the proper use of the
evidence admitted under Mil R. Evid. 413. 6 However, the military judge did provide
a “spillover” instruction to the members substantially consistent with the standard
Benchbook instruction. 7

       During closing argument, the government presented its theory concerning the
nature of appellant’s offenses: “When someone says [“no,”] he doesn’t stop.” Trial
counsel first turned to appellant’s pursuit of and refusal to accept Ms. AT’s
resistance to his advances. Trial counsel then turned to the allegations involving
SPC DC in arguing “[t]hat same pushing from months prior that you see with [SPC
DC] and again sometimes he gets what he wants.” In describing the “wrongful
sexual contact” by grabbing SPC DC’s breasts (Specification 3 of Charge V), trial
counsel apparently alluded to the incident with Ms. ME in arguing it as “the same
thing from months prior, that you can look at. . . . In his barracks room and he starts
groping without consent.” Trial counsel later referenced the Mil. R. Evid. 413
evidence in relation to SPC DC’s tearful demeanor while testifying to the rape
allegation by arguing “[a]gain, the pushing is the same thing that happened with
[Ms. ME], with each person he pushes.” Yet later, in arguing appellant was not
mistaken as to SPC DC’s lack of consent, trial counsel again made an apparent
reference to the Mil. R. Evid. 413 evidence by stating “[l]ook at under the
circumstances what he knows after time and time again, he’s told [“no”], because
he’s the same person who keeps pushing who months later does the same thing to
[SPC DC].”

                             2. Specification 7 of Charge V

       Throughout the trial, the government presented its case for the assault of Ms.
AT as one of rape by force. The military judge instructed on the elements of the
offense and then defined “sexual act” as “the penetration however slight of the vulva
by the penis or of the genital opening of another by a hand or finger or by an object
with the intent to arouse, humiliate, harass or degrade any person or to arouse or
gratify the sexual desire of any person.” The military judge continued:

               “Substantially impaired” means a level of mental
               impairment that rendered the alleged victim unable to
               apprise the nature of the sexual conduct at issue, unable to
               decline participation in the sexual conduct at issue, or

6
 See Dep’t of Army, Pam. 27-9, Legal Services: Military Judge’s Benchbook
[hereinafter Benchbook], 7-13-1 n.3 (1 Jan. 2010).
7
    See Benchbook, para. 7-17 n.1.
                                            7
BENNETT—ARMY 20121072

                unable to physically communication [sic] unwillingness to
                engage in the sexual conduct at issue.

                “Unconscious” means incapable of responding to sense or
                stimuli and of having subjective experiences. An
                unconscious person isn’t capable of creating memories for
                later recall. Lack of memory may be evidence of
                unconsciousness, but the mere inability to recall
                sometimes associated with excessive alcohol consumption
                is insufficient to prove beyond a reasonable doubt that the
                person was unconscious. 8

        The military judge properly instructed the panel on the standard definition of
“force” as “actual action to compel submission of another or to overcome or prevent
another’s resistance by physical violence, strength, power, or restraint applied to
another person, sufficient that the other person could not avoid or escape the sexual
act.” 9 As to the defense of consent, the military judge instructed:

                A person cannot consent to sexual activity if that person is
                substantially incapable of apprising the nature of the
                sexual conduct at issue due to mental impairment or
                unconsciousness resulting from consumption of alcohol,
                drugs, and a similar substance or otherwise. Again,
                substantially incapable of physically declining
                participation in the sexual conduct at issue, substantially
                incapable of physically communicating an unwillingness
                to engage in the sexual conduct at issue. 10

         The military judge continued by instructing the panel concerning mistake of
fact 11 and the government’s burden of proof beyond a reasonable doubt. No further
reference was made to substantial impairment or to unconsciousness.

                                3. Communicating a Threat

         Specification 3 of Charge VII alleged:


8
    See Benchbook, para. 3-45-3d.
9
    See Id. at n.6.
10
     See Id. at n.10.
11
     See Id. at n.11.
                                             8
BENNETT—ARMY 20121072

            In that [appellant], did, at or near Fort Hood, Texas, on or
            about 3 February 2012, wrongfully communicate to [Ms.
            ST] a threat to harm his chain of command, including
            [SFC DW], which conduct, under the circumstances, was
            to the prejudice of good order and discipline in the armed
            forces and was of a nature to bring discredit upon the
            armed forces. (emphasis added).

At trial, the government called Ms. ST, a Medical Service Assistant employed at the
Darnell Army Medical Center (DAMC) at Fort Hood. On 3 February 2012, appellant
entered the DAMC mental health clinic and demanded to see his provider. Ms. ST
attempted to assist appellant, who was visibly upset, as his provider was not
available. Trial counsel and Ms. ST then engaged in the following colloquy:

            Q. To the best of your ability, could you describe still his
            demeanor, his tone, and the language he used and that sort
            of thing when he was in your office.

            A. He was very angry. He was cursing profusely. He –
            his – the voice level was loud and I - - usually I’m able to
            diffuse the situation . . . .

            Q. In this case were you able to diffuse the situation?

            A. No, in fact, I never was able to understand what the
            problem was at all.

            Q. Did he specifically say anything about anybody in his
            chain of command or chain of responsibility?

            A. Yes, he was angry. He did say that – he did say that he
            wasn’t going to hurt himself, but he did say he was going
            to hurt his First Sergeant and other sergeants. He
            mentioned who they were, but I didn’t catch it.

            Q. When you - - - when he said he was going to hurt his
            First Sergeant and other sergeants and he said their names,
            it sounds like; is that fair to say?

            A. That would - - yes.

            Q. Did he say he was thinking about it or that he was
            going to?


                                         9
BENNETT—ARMY 20121072

               A. He said that he was going to hurt them. He did not say
               he was going to kill them; he said he was – they were
               going – he was going to hurt them though.

And later, on cross-examination by defense counsel:

               Q. You testified that Private Bennett made a statement to
               you and if I can paraphrase, your statement that you
               testified, was that he was going to hurt members of his
               chain of command; is that correct?

               A. Mm-hmm.

               MJ: Yes.

               Q. Is that a yes?

               A. Yes.

       The military judge instructed the members concerning the elements of
communicating a threat consistent with the Benchbook. 12 As to the first element, the
military judge instructed that “the accused communicated certain language, to wit,
that he wanted to hurt his chain of command and first sergeant, or words to that
effect” (emphasis added).

                                   LAW AND DISCUSSION

                              A. Mil. R. Evid. 413 Evidence

      Appellant’s first assignment of error asserts that the military judge erred in
admitting evidence concerning appellant’s sexual assault of Ms. ME under Mil. R.
Evid. 413.

       We review a military judge’s decision to admit or exclude evidence for an
abuse of discretion. United States v. Barnett, 63 M.J. 388, 394 (C.A.A.F. 2006).
“The abuse of discretion standard is a strict one, calling for more than a mere
difference of opinion. The challenged action must be “arbitrary, fanciful, clearly
unreasonable, or clearly erroneous.” United States v. Lloyd, 69 M.J. 95, 99
(C.A.A.F. 2010) (citing United States v. McElhany, 54 M.J. 120, 130 (C.A.A.F.
2000) (internal quotations omitted).



12
     See Benchbook, para. 3-110-1.
                                           10
BENNETT—ARMY 20121072

       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 using evidence of
another sexual offense to prove that an accused has a propensity to commit sexual
offenses. United States v. James, 63 M.J. 217, 219-20 (C.A.A.F. 2006); United
States v. Wright, 53 M.J. 476, 480 (C.A.A.F. 2000). There is a general presumption
in favor of admission of evidence offered under this rule. United States v. Berry, 61
M.J. 91, 94-95 (C.A.A.F. 2005) (citing Wright, 53 M.J. at 482-83). The drafter’s
analysis of Mil. R. Evid. 413 states that the rule is intended to “provide for more
liberal admissibility of character evidence in criminal cases of sexual assault where
the accused has committed a prior act of sexual assault.” Manual for Courts-
Martial, United States (2012 ed.) [hereinafter MCM, 2012], Mil. R. Evid. 413
analysis, app. 22 at A22-37 (emphasis added).

       Our superior court has set forth requirements for admissibility of evidence of
similar sexual offenses under Mil. R. Evid. 413. The analysis begins by examining
whether three threshold requirements are met: “(1) the accused must be charged with
a sexual offense; (2) the proffered evidence must be evidence of the accused’s
commission of any other sexual offense; and (3) the evidence must be relevant under
Mil. R. Evid. 401 and 402.” United States v. Solomon, 72 M.J. 176, 179 (C.A.A.F.
2013) (citations omitted). With regard to the second threshold requirement, the
military judge must conclude that “the members could find by a preponderance of
the evidence that the offenses occurred.” Id. (citing Wright, 53 M.J. at 483).

       Once these three threshold findings are met, “the military judge is
constitutionally required to also apply a balancing test under [Mil. R. Evid.] 403.”
Solomon, 72 M.J. at 179-80 (citing Berry, 61 M.J. at 95). Mil. R. Evid. 403 states
that the judge “may exclude relevant evidence 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 context of a Mil. R. Evid. 413
analysis, 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[.]” Solomon, 72 M.J. at 180 (citing Wright, 53 M.J. at 482) (alteration
in original). “The importance of careful balancing arises from the potential for
undue prejudice that is inevitably present when dealing with propensity evidence.”
United States v. Ediger, 68 M.J. 243, 248 (C.A.AF. 2010) (quoting James, 63 M.J. at
222). Factors considered in conducing this balancing test include, but are not
limited to:

             the strength of the proof of the prior act; the probative
             weight of the evidence; the potential to present less
             prejudicial evidence; the possible distraction of the fact
                                         11
BENNETT—ARMY 20121072

             finder; the time needed to prove the prior conduct; the
             temporal proximity of the prior event; the frequency of the
             acts; the presence of any intervening circumstances; and the
             relationship between the parties.

Berry, 61 M.J. at 95 (citing Wright, 53 M.J. at 482). “No one factor is controlling,
although in a given case it could be.” United States v. Bare, 65 M.J. 35, 37
(C.A.A.F. 2007). When the Mil. R. Evid. 403 balancing test requires exclusion of
the evidence at issue, “the presumption of admissibility is overcome.” Berry,
61 M.J. at 95 (citing Wright, 53 M.J. at 482-83).

       Appellant does not dispute that the evidence of the sexual assault of Ms. ME
satisfied the initial threshold for admissibility. The accused stood charged with
several sexual offenses; the appellant’s statement was clearly evidence of
appellant’s commission of an uncharged sexual offense against Ms. ME; and the
evidence was relevant, especially in the context of a case involving numerous sexual
offenses, one of which was very similar in nature to appellant’s assault of ME.

       Appellant asserts the military judge, in applying the balancing test required
under Mil. R. Evid. 403, failed to consider the potential for less prejudicial evidence
than that admitted by the military judge. Additionally, the military judge failed to
specify which of the charged offenses were similar to the sexual assault of Ms. ME
and permitted admission of appellant’s entire statement, to include other acts of
uncharged misconduct unrelated to a sexual offense.

      We find these arguments unpersuasive. First, we note that trial defense
counsel neither sought clarification as to which offenses the Mil. R. Evid. 413
evidence was admissible, nor requested the military judge to mask the other
uncharged misconduct from appellant’s statement before it was admitted into
evidence. We will not speculate as to the trial defense counsel’s tactical reasons for
remaining silent in this regard. However, viewing the record as a whole, we can
envision many reasonable reasons for not highlighting the other uncharged
misconduct by masking the exhibit. Finally, and perhaps most importantly,
appellant simply fails to suggest or propose the less prejudicial evidence the military
judge should have admitted. Overall, we conclude that the military judge did not
abuse her discretion in admitting evidence of appellant’s assault of ME and the
remainder of the appellant’s statement.

                                    B. Instructions

       Appellant’s second assignment of error asserts the military judge erred by
failing to provide the members an instruction for the evidence admitted pursuant to
Mil. R. Evid. 413, adding additional theories of guilt when instructing as to the
offense of rape, failing to provide instructions for the lesser-included offenses for
                                          12
BENNETT—ARMY 20121072

rape, and using the wrong language in instructing on the offense of communicating a
threat.

       “[T]he judge has substantial discretionary power in deciding on the
instructions to give.” United States v. Damatta-Olivera, 37 M.J. 474, 478 (C.M.A.
1993) (citation omitted). We review a military judge’s non-mandatory panel
instructions for an abuse of discretion and the correctness of the instructions
actually given de novo. United States v. Davis, 75 M.J. 537, 543 (Army Ct. Crim.
App. 2015); see also United States v. Forbes, 61 M.J. 354, 358 (C.A.A.F. 2005). In
a case of unpreserved error when there was no objection to the instructions, we
review for plain error. United States v. Payne, 73 M.J. 19, 22-23 (C.A.A.F. 2014)
(“Where there is no objection to an instruction at trial, we review for plain error.”).
“The plain error standard is met when: (1) an error was committed; (2) the error was
plain, or clear, or obvious; and (3) the error resulted in material prejudice to
substantial rights.” United States v. Maynard, 66 M.J. 242, 244 (C.A.A.F. 2008)
(citation and internal quotation marks omitted).

       In evaluating non-constitutional error, we must determine whether the
instructional error had “substantial influence” on the findings. United States v.
Gibson, 58 M.J. 1, 7 (C.A.A.F. 2003) (quoting Kotteakos v. United States, 328 U.S.
750, 765 (1946)); see Estelle v. McGuire, 502 U.S. 62, 72 (1991) (instructional
errors are of constitutional magnitude if there is “‘a reasonable likelihood that the
jury has applied the challenged instruction in a way’ that violates the Constitution.”)
(quoting Boyde v. California, 494 U.S. 370, 380 (1990)); see also United States v.
Dacosta, 63 M.J. 575, 579 (Army Ct. Crim. App. 2006). If we find error such that it
rises to a constitutional dimension, we may only affirm the affected findings of
guilty if we determine the error was harmless beyond a reasonable doubt. See
Chapman v. California, 386 U.S. 18, 24 (1967); United States v. Kreutzer, 61 M.J.
293, 298–99 (C.A.A.F. 2005).

       As an initial matter, we find that appellant forfeited any instructional error by
failing to object to any of the military judge’s instructions listed in appellant’s
second assignment of error. See Davis, 75 M.J. at 543.

                             1. Mil. R. Evid. 413 Evidence

       Our court has revisited what instructions are proper when evidence is
admitted under Mil. R. Evid. 413. See United States v. Williams, 75 M.J. 621 (Army
Ct. Crim. App. 2016), pet. granted, 75 M.J. __ (C.A.A.F. 22 June 2016). We need
not belabor the obvious error committed by the military judge in failing to provide
an appropriate instruction for the members concerning the evidence admitted
pursuant to Mil. R. Evid. 413. The issue before us, instead, is whether the absence
of such an instruction was harmless beyond a reasonable doubt. We find that it was.


                                           13
BENNETT—ARMY 20121072

       First, we look to the nature of the Mil. R. Evid. 413 evidence. The appellant,
ignoring Ms. ME’s verbal resistance, fondled her breasts and put his hands down her
pants, stopping only after she pulled his hand away. Specification 3 of Charge V
alleged similar conduct with SPC DC. The panel acquitted appellant of this
specification, a clear indication that the panel did not give immense weight to
appellant’s propensity to act in this manner.

       Second, we look to the purpose of Mil. R. Evid. 413 and any propensity
instruction once such evidence is admitted. Mil. R. Evid. 413 allows the government
to admit and use propensity evidence in certain circumstances where an accused is
charged with a sexual offense that would not be permitted with most other offenses.
See Manual for Courts-Martial, United States (2012 ed.) [hereinafter M.C.M.], app.
22 at A22-37. An instruction is important to ensure the evidence is appropriately
considered for this purpose.

      However, here is not a case where the military judge gave the panel a
confusing or poorly worded instruction concerning Mil. R. Evid. 413 evidence.
They received no instruction. Accordingly, we look to the other instructions
provided by the military judge. Specifically, the military judge provided the
members the standard spillover instruction in stating:

             An accused may be convicted only on the evidence before
             the court and not on evidence of a general criminal
             disposition. Each offense must stand on its own and you
             must keep the evidence of each offense separate. Stated
             differently, if you find or believe that the accused is guilty
             of one offense, you may not use that finding or belief as a
             basis for inferring, assuming or proving that he committed
             any other offense.

             If evidence has been presented which is relevant to more
             than one offense, you may consider that evidence with
             respect to each offense – excuse me, each offense to which
             it is relevant. For example, if a person were charged with
             stealing a knife and later using the knife to commit
             another offense, evidence concerning the knife such as
             that person being in possession of it or that person’s
             fingerprints being found on it, could be considered with
             regard to both offenses. But the fact that a person’s guilt
             of stealing the knife may have been proven, is not
             evidence that the person is also guilty of any other
             offense.



                                          14
BENNETT—ARMY 20121072

               The burden is on the prosecution to prove each and every
               element of each offense beyond a reasonable doubt. Proof
               of one offense carries with it no inference that the accused
               is guilty of any other offense.

Read in its entirety, this instruction effectively told the members that they could not
consider the Mil. R. Evid. 413 evidence for any purpose. Again, the panel’s
acquittal of the appellant of the specification involving conduct that was most
similar to the Mil. R. Evid. 413 evidence shows the panel followed the military
judge’s admonition in the spillover instruction.

       Finally, we look to the evidence itself. The evidence underlying the offenses
involving SPC DC and Ms. AT of which the appellant was convicted was very strong
and convincing. See Dacosta, 63 M.J. at 583. We are convinced any error in the
military judge’s failure to provide a Mil. R. Evid. 413 instruction was harmless
beyond a reasonable doubt.

                             2. Specification 7 of Charge V

      Appellant asserts the military judge improperly instructed the panel as to
Specification 7 of Charge V, alleging appellant raped Ms. AT by force, by
presenting alternate theories of liability to the panel.

       Whether a panel was properly instructed is a question of law which we review
de novo. United States v. Mott, 72 M.J. 319, 325 (C.A.A.F. 2013) (citing United
States v. Garner, 71 M.J. 430, 432 (C.A.A.F. 2013)).

       “The military judge has an independent duty to determine and deliver
appropriate instructions.” United States v. Ober, 66 M.J. 393, 405 (C.A.A.F. 2008)
(citing United States v. Westmoreland, 31 M.J. 160, 163-64 (C.M.A. 1990)). The
judge “must bear the primary responsibility for assuring that the [panel] properly is
instructed on the elements of the offenses raised by the evidence as well as potential
defenses and other questions of law.” Id. (citing Westmoreland, 31 M.J. at 164)
(internal quotation marks omitted).

       We find the military judge erred by providing the definition of “substantially
impaired” and “unconscious” 13 after providing the elements of rape to the members.
The language used by the military judge substantially followed the “boilerplate”
instruction in the Benchbook 14 and was inadvertently read in this case. However, we


13
     See Benchbook, para. 3-35-3d..
14
     Id.
                                            15
BENNETT—ARMY 20121072

find the judge did not introduce a theory of criminal liability upon which the court-
martial might improperly convict.

       First, the government alleged, and maintained throughout trial, that appellant
raped Ms. AT by force. While the military judge’s instructions included the
definitions for “substantially impaired” and “unconscious,” these concepts are
applicable only when a rape is the product of rendering another unconscious or by
the administration of a drug, intoxicant, or similar substance without the victim’s
knowledge. See MCM, 2012, app. 28, A28-5. Hence, these concepts were
inconsistent with the government’s theory and the evidence presented that Ms. AT
was not incapacitated or unconscious at the time of the assault; she, in fact,
remembered vividly the appellant’s assault.

       Second, the military judge, in instructing on the elements for rape, was
specific in informing the members that to find appellant guilty, they had to be
convinced that appellant committed the act by using force, that being “strength,
power and restraint sufficient enough so that Ms. AT could not avoid or escape the
act.” The military judge additionally defined “force” consistent with the Benchbook
as “actual action to compel submission of another or to overcome or to prevent
another’s resistance by physical violence, strength, power or restraint applied to
another person sufficient so that the other person could not avoid or escape the
sexual act.” 15 Incapacitation or unconsciousness are not inherent or suggested in the
element or definition of force provided by the military judge. It was clear to the
members that to convict they had to find appellant used physical force. Further the
military judge did not provide a variance instruction that could have invited the
members to convict appellant for rape under a different theory.

       Third, the affirmative defense of consent, as instructed by the military judge,
did not reduce the burden upon the government to prove rape by force. The
instructions provided by the judge on the government’s burden to prove force were
correct, and there is nothing in the court-martial’s findings that provides any basis to
doubt the reliability of appellant’s conviction of rape by using force.

       Fourth, appellant was not charged with rape by either rendering AT
unconscious or by administration of an intoxicant, nor was appellant charged with
aggravated sexual assault upon a substantially incapacitated person. See MCM,
2012, app. 28, A28-1. Though the definition of competence includes reference to
unconsciousness, there is no danger that an accused charged with rape by using force
would be unjustly convicted of any of these other offenses. The law as provided in
the standard instructions ensures that guilt for rape by force comes only where the
accused compels submission or otherwise overcomes or prevents resistance. The
risk of conviction on a theory uncharged is therefore based on speculation alone.

15
     Benchbook, para. 3-53-3(d) at n.6
                                          16
BENNETT—ARMY 20121072

See generally United States v. Taylor, 53 M.J. 195, 199 (C.A.A.F. 2000). But we
need not speculate. “Absent evidence to the contrary, this [c]ourt may presume that
members follow a military judge’s instructions.” Id. at 198. AT was competent.
She refused to consent to sexual conduct with appellant. She verbally and
physically resisted his efforts to commit sexual acts upon her. Appellant used force
to overcome that resistance and compel her submission. The evidence is legally and
factually sufficient to establish appellant’s guilt for rape by using force and there is
nothing illogical or inconsistent about the panel’s findings.

           3. Lesser Included Offenses, Specifications 4 and 7 of Charge V

       We next turn to appellant’s allegation that the judge failed to instruct on the
lesser-included offense of aggravated sexual assault by force. “A military judge has
a sua sponte duty to instruct the members on any lesser-included offenses reasonably
raised by the evidence.” United States v. Arriaga, 70 M.J. 51, 55 (C.A.A.F. 2011)
(citation omitted); see United States v. Wells, 52 M.J. 126, 129-30 (C.A.A.F. 1999).
The military judge should only instruct on a lesser-included offense “where the
greater offense requires members to find a disputed factual element which is not
required for conviction of the lesser violation.” United States v. Tunstall, 72 M.J.
191, 192 (C.A.A.F. 2012) (quoting United States v. Miergrimado, 66 M.J. 34, 36
(C.A.A.F. 2000); see Sansone v. United States, 380 U.S. 343, 350 (1965). Omission
of an instruction on a lesser-included offense that is raised by the evidence must be
tested for harmlessness beyond a reasonable doubt. See United States v. Brown, 63
M.J. 735, 740 (Army Ct. Crim. App. 2006); Wells, 52 M.J. at 130 (“[R]eversal is
required only when an appellate court is convinced that the evidence issues are such
that a rational jury could acquit on the charged crime but convict on the lesser
crime.”) (citation and internal quotation marks omitted).

       With regard to PFC DC, we are convinced beyond a reasonable doubt
appellant exercised such force necessary for the offense of rape by force. We are
not convinced that the evidence is such that a rational jury would have, in the first
instance, acquitted appellant of this offense, so consideration of a lesser-included
offense is not necessary. The evidence clearly established appellant forced PFC DC
onto the bed and onto her hands. The force of his weight rendered her unable to
move her hands. In that state, appellant attempted to penetrate her anus and then
succeeded in penetrating her vagina. Further, nothing in the facts at trial fairly
suggested a lesser-included offense was appropriate or even reasonably raised by the
evidence.

      With respect to Ms. AT, consent, reasonable mistake of fact, and intoxication
were at issue, as appellant correctly notes. However, these are all issues for the
offense of rape and aggravated sexual assault. If the panel had found Ms. AT
consented to the sex act, appellant would have been acquitted of either offense. But,
we need not go further with that analysis. Ms. AT’s testimony clearly established
                                           17
BENNETT—ARMY 20121072

appellant used sufficient force to commit his offense, despite Ms. AT’s efforts to
resist and kick appellant to stop his advances. We find a rational panel would not
have acquitted appellant of rape.

      Accordingly, we find this allegation of error to be without merit.

                             4. Communicating a Threat 16

        The military judge erred, in part, in her instructions to the members
concerning Specification 3 of Charge VII by stating the threat communicated to Ms.
ST was appellant’s intent to harm his chain of command and first sergeant. The
allegation specified the threat communicated to Ms. ST was appellant’s intent to
harm his chain of command, to include SFC DW. As the government presented no
evidence to the panel that SFC DW was appellant’s first sergeant, we will grant
partial relief as to this specification in our decretal paragraph. We otherwise find
appellant’s claim of error on this issue without merit.

                                 D. Incomplete Record

                                 1. Motions in Limine

      In his third assignment of error, appellant alleges that the record is incomplete
because the military judge’s ruling on two defense motions in limine regarding
statements made by appellant to SFC DW and SGT LC, respectively, and an
amended flyer directed by the military judge are not included in the record of trial.

       “Whether a record is complete and a transcript is verbatim are questions of
law that this Court reviews de novo.” United States v. Davenport, 73 M.J. 373, 376
(C.A.A.F. 2014). “The requirement that a record of trial be complete and
substantially verbatim in order to uphold the validity of a verbatim record sentence
is one of jurisdictional proportion that cannot be waived.” Id. (citing United States
v. Henry, 53 M.J. 109, 110 (C.A.A.F. 2000).

      R.C.M. 1103(b)(2)(B) requires a verbatim transcript:

            of all sessions except sessions closed for deliberation and
            voting when: (i) Any part of the sentence adjudged exceeds
            six months confinement, forfeiture of pay greater than two-
            thirds pay per month, or any forfeitures of pay for more

16
  In the supplemental brief, appellant refers to this error in its pleading in reference
to Charge V, which is a violation of Article 120; however the substance of the
argument relates to Specification 3 of Charge VII which is a violation of Article
134, communicating a threat.
                                          18
BENNETT—ARMY 20121072

            than six months or other punishments that may be adjudged
            by a special court-martial; or (ii) a bad conduct discharge.

A verbatim transcript is required in this case as appellant was sentenced to nine
years and nine months of confinement and a dishonorable discharge.

      In order for a record to be verbatim, “all sidebar conferences, arguments of
counsel, and rulings and instructions by the military judge” must be included.
R.C.M.1103(b)(2)(B) discussion.

      “In assessing either whether a transcript is verbatim, the threshold question is
‘whether the omitted material was ‘substantial,’ either qualitatively or
quantitatively.’” Davenport, 73 M.J. at 377 (quoting United States v. Lashley, 14
M.J. 7, 9 (C.M.A. 1982); cf. United States v. Gaskins, 72 M.J. 225, 229 (C.A.A.F.
2013) (citing Henry, 53 M.J. at 111) (stating that a “substantial” omission makes a
record incomplete).

       The military judge’s ruling on the suppression motions and the amended flyer
are not included in the record; however the record is substantially verbatim.
“Transcripts need not be ‘word for word,’ but must be substantially verbatim.”
Davenport, 73 M.J. at 377 (quoting Lashley, 14 M.J. at 8). “A transcript may be
deemed substantially verbatim though it has certain omissions.” Davenport, 73 M.J.
at 377. (citation and internal quotation marks omitted). These omission are not
substantial as they do not relate “directly to the sufficiency of the Government’s
evidence on the merits.” Davenport, 73 M.J. at 377 (citing Lashley, 14 M.J. at 9).

       First, SFC DW did not testify at trial, so appellant’s statement made to him
had no bearing on the government’s evidence concerning the appellant’s indecent act
in photographing PFC MG and Ms. KC. The military judge’s ruling did not
otherwise impact the other evidence introduced by the government (i.e., the
testimony of Ms. AT) to prove this offense. Second, the other two charges that were
the subject of the motion in limine regarding appellant’s statements to SFC DW, tax
evasion, were dismissed by the military judge in granting defense counsel’s motion
for a finding of not guilty pursuant to R.C.M. 917.

       The military judge’s second motion in limine ruling likewise did not affect the
charges that were the subject of SGT LC’s testimony. First, SGT LC’s testimony
did not include the statements by appellant that were the subject of the motion in
limine. We note specifically that appellant does not allege otherwise before this
court. Second, the military judge granted defense counsel’s motion under R.C.M.
917 concerning Specification 2 of Charge IV, which alleged appellant wrongfully
possessed a pipe for smoking synthetic cannabis.



                                          19
BENNETT—ARMY 20121072

      In short, the absence of the military judge’s rulings on the two motions in
limine can hardly be a substantial omission when the evidence sought suppressed by
defense counsel was not brought before the factfinder and could not have swayed
any result in appellant’s trial. Furthermore, the charges relating to the evidence
were dismissed making the evidence irrelevant. None of appellant’s statements that
were the subject of the motions in limine were introduced or relevant to the charges
of which the panel found appellant guilty.

                                       2. Flyer

       In reference to the amended flyer, our predecessor has twice held that a flyer
omitted from the record is not a substantial omission. See United States v. Cudini,
36 M.J. 572, 573 (A.C.M.R. 1992) (“We hold that the failure to attach the flyer as an
appellate exhibit is not a substantial omission.”); United States v. Williams, 36 M.J.
785, 789-90 (A.C.M.R. 1993) (“Failure to include the flyer as an appellate exhibit is
not a substantial omission and does not cause an otherwise complete record of trial
to be rendered incomplete or deprived of its verbatim status.”).

       The record shows the military judge ordered that a new flyer be prepared
without the four specifications dismissed by the military judge pursuant to R.C.M.
917. Trial counsel, in fact, sought specific guidance as to what the military judge
wanted. The record contains no further discussion on the topic suggesting that the
government failed to comply with the military judge’s request. Defense counsel did
not raise an objection to flyer following the military judge’s instructions. Simply,
there is nothing to suggest that the flyer presented to the panel was not amended.

       We also note that the military judge’s instructions did not discuss, and the
findings worksheet did not list, the specifications dismissed by the military judge.
Also, the members did not appear to be confused by the absence of the dismissed
charges in the instructions or on the findings worksheet as they did not seek an
explanation from the military judge for their absence. This further shows that the
silence of the record concerning the amended flyer had no impact on the
proceedings. We therefore find this issue without merit.

                          D. Dilatory Post-Trial Processing

       In his fifth assignment of error, appellant asserts that the government’s
dilatory post-trial processing his case warrants relief. We agree. The convening
authority took action 665 days after the sentence was adjudged. Forty-two days are
attributable to the defense, thus 623 days are attributable to the government. The
record in this case consists of nine volumes, and the trial transcript is 857 pages.
We find 623 days to be excessive.



                                          20
BENNETT—ARMY 20121072

       Although we find no due process violation in the post-trial processing of
appellant’s case, we must still review the appropriateness of the sentence in light of
the unjustified dilatory post-trial processing. UCMJ art. 66(c); United States v.
Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002) (“[Pursuant to Article 66(c), UCMJ,
service courts are] required to determine what findings and sentence ‘should be
approved,’ based on all the facts and circumstances reflected in the record, including
the unexplained and unreasonable post-trial delay.”). See generally United States v.
Toohey, 63 M.J. 353, 362-63 (C.A.A.F. 2006); United States v. Ney, 68 M.J. 613,
617 (Army Ct. Crim. App. 2010); United States v. Collazo, 53 M.J. 721, 727 (Army
Ct. Crim. App. 2000). The government’s reason for the delays–essentially,
insufficient court reporter support given overall caseload demands–is not persuasive.
See Arriaga, 70 M.J. at 57.

       The appellant requested speedy post-trial delay in his post-trial submission. It
took 373 days to transcribe the record of trial and to serve the record of trial on
appellant’s defense counsel, and 57 days for the military judge to authenticate the
record of trial in this case. The delay between announcement of sentence and action
is simply too long, and could “adversely affect the public’s perception of the
fairness and integrity of military justice system . . . .” Ney, 68 M.J. at 617. Thus,
we find relief is in order and will provide for such in our decretal paragraph.

                                   CONCLUSION

      We AFFIRM only so much of Specification 3 of Charge VII as reads:

             In that [appellant], did, at or near Fort Hood, Texas, on or
             about 3 February 2012, wrongfully communicate to [ST] a
             threat to harm his chain of command, which conduct,
             under the circumstances, was to the prejudice of good
             order and discipline in the armed forces and was of a
             nature to bring discredit upon the armed forces. 17

The remaining findings of guilty are AFFIRMED.

       We are able to reassess the sentence on the basis of the error noted and do so
after conducting a thorough analysis of the totality of circumstances presented by
appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and

17
  We note that even though this specification, as amended, does not reference a
particular person by name, it still states an offense. See United States v. Gilluly, 13
U.S.C.M.A. 458, 460-61, 32 C.M.R. 458 (C.M.A. 1963). (finding threat to harm “his
buddies” at the Officers and Noncommissioned Officers Clubs sufficient to identify
the potential victims of the threat).
                                            21
BENNETT—ARMY 20121072

United States v. Sales, 22 M.J. 305 (C.M.A. 1986). We are confident that based on
the entire record and appellant’s course of conduct, the panel would have imposed a
sentence of at least that which was adjudged and offer no sentence relief on this
basis. However, given the dilatory post-trial processing, we AFFIRM only so much
of the sentence as provides for a dishonorable discharge, confinement for nine years
and seven months, and reduction to the grade of E-1. All rights, privileges, and
property, of which appellant has been deprived by virtue of this decision setting
aside portions of the findings of guilty, are ordered restored. See UCMJ arts.
58a(b), 58b(c), and 75(a).

      Senior Judge MULLIGAN and Judge HERRING concur.


                                       FOR THE
                                       FOR THE COURT:
                                               COURT:



                                       JOHN P. TAITT
                                       JOHNDeputy
                                       Chief P. TAITT
                                                  Clerk of Court
                                       Chief Deputy Clerk of Court




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