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

                                No. ACM 39567
                           ________________________

                              UNITED STATES
                                  Appellee
                                       v.
                        Christopher A. DUNLAP
                   Major (O-4), U.S. Air Force, Appellant
                           ________________________

        Appeal from the United States Air Force Trial Judiciary
                             Decided 4 May 2020
                           ________________________

Military Judge: Jennifer E. Powell.
Approved sentence: Dismissal, confinement for 90 days, and a repri-
mand. Sentence adjudged 28 June 2018 by GCM convened at Joint Base
McGuire-Dix-Lakehurst, New Jersey.
For Appellant: Lieutenant Colonel Anthony D. Ortiz, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Zach-
ary T. West, USAF; Mary Ellen Payne, Esquire.
Before J. JOHNSON, POSCH, and KEY, Appellate Military Judges.
Judge KEY delivered the opinion of the court, in which Chief Judge J.
JOHNSON and Judge POSCH joined.
                           ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 30.4.
                           ________________________
KEY, Judge:
   A military judge sitting as a general court-martial convicted Appellant, in
accordance with his pleas pursuant to a pretrial agreement (PTA), of three
specifications of willfully disobeying a superior commissioned officer and one
specification each of fraternization and adultery, in violation of Articles 90 and
                    United States v. Dunlap, No. ACM 39567


134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 890, 934. 1 The
military judge sentenced Appellant to a dismissal, confinement for three
months, and a reprimand. Consistent with the terms of the PTA, the convening
authority approved only 90 days of confinement but approved the remainder of
the adjudged sentence.
   On appeal, Appellant raises two issues through counsel: (1) whether the
military judge erred by permitting Appellant’s wife to exceed the permissible
bounds of an unsworn victim-impact statement and (2) whether testimony
about Appellant’s relationship with his children was proper aggravation evi-
dence. Appellant personally raises one additional issue pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982): whether he was improperly
placed in pretrial confinement. We have carefully considered the issue Appel-
lant raises regarding his pretrial confinement and determine it is without
merit and warrants no discussion or relief. See United States v. Matias, 25 M.J.
356, 361 (C.M.A. 1987).
    We find the military judge erred in admitting evidence in aggravation and
in the victim’s unsworn statement. However, we conclude these errors did not
affect Appellant’s sentence. Finding no error materially prejudicial to Appel-
lant’s substantial rights, we affirm the findings and sentence.

                                  I. BACKGROUND
    Appellant, a married major, carried on an intimate relationship with an
enlisted co-worker, Airman First Class (A1C) AJ, over a period of several
months. 2 Appellant and A1C AJ continued their relationship despite orders
from their commander to cease contact with each other, and they were reas-
signed to other duties due to their relationship becoming a distraction to their
office. During this time, Appellant and his wife, Ms. AD, separated and shortly
thereafter divorce proceedings were initiated. After violating the commander’s
orders and generally indicating he did not intend to follow them in the future,
Appellant was placed in pretrial confinement, where he remained through his
trial. Appellant continued violating the no-contact order by having periodic tel-
ephone conversations with A1C AJ while he was in pretrial confinement.




1 Except as otherwise noted, all references in this opinion to the Uniform Code of Mil-
itary Justice (UCMJ), the Rules for Courts-Martial (R.C.M.), and the Military Rules of
Evidence are to the Manual for Courts-Martial, United States (2016 ed.) (MCM).
2Airman First Class (A1C) AJ had been a senior airman, but she was reduced in grade.
We use A1C as her grade in this opinion.


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                    United States v. Dunlap, No. ACM 39567


   Early in Appellant’s trial, the military judge asked trial counsel to note for
the record who had been identified “as an Article 6b victim.” Trial counsel
named Appellant’s wife, Ms. AD, and no one else.
    The Government’s sentencing case consisted of evidence in aggravation in-
cluding testimony from Appellant’s commander, one of Appellant’s co-workers,
and his first sergeant, Master Sergeant (MSgt) JW. Over defense objection, the
military judge permitted MSgt JW to testify about how Appellant would not
avail himself of MSgt JW’s offers to facilitate telephone conversations between
Appellant and his children while Appellant was in pretrial confinement. Trial
counsel’s argument for the admissibility of this evidence was that “given the
aggravating nature of the crimes in general, including adultery, under [R.C.M.]
1001(b)(4), getting into the circumstances surrounding his pretrial confine-
ment and his actions and statements during that time demonstrate the aggra-
vating nature of the situation. Adultery is one of the offenses.” In allowing this
testimony, the military judge did not place a Mil. R. Evid. 403 analysis on the
record.
    At the conclusion of the Government’s sentencing case, trial counsel told
the military judge that Ms. AD would like to give an unsworn statement. Be-
fore Ms. AD began, however, trial defense counsel objected to portions of the
written unsworn statement, which had been marked as Court Exhibit 1. The
military judge sustained the Defense’s objection to portions of the statement
which addressed: Appellant’s and Ms. AD’s efforts to have a fifth child before
they separated; the impact of Appellant’s and Ms. AD’s separation on their four
children; Appellant’s lack of involvement with the children since the separa-
tion; and his lack of interest in his fifth child, whom Ms. AD was pregnant with
at the time of trial. The military judge overruled defense objections to portions
addressing: Appellant’s reaction to learning that Ms. AD was pregnant with
their fifth child; 3 Ms. AD moving to her parents’ house with the four children;
and her financial challenges in providing for the children since the separation.
The military judge permitted some commentary in the unsworn statement
about the children’s reaction to having little contact with their father. 4 In rul-
ing that the excluded information pertaining to Appellant’s lack of involvement
with and the impact on his children was improper victim-impact material, the


3 Ms. AD said she and Appellant had been trying to have a fifth child, and when she
told Appellant she was pregnant, he said the blood-test results were fake and that she
needed to take another pregnancy test in front of him. She also said Appellant told her
the pregnancy “upset and hurt [A1C AJ] because [A1C AJ] wanted to have a baby.”
4The military judge permitted Ms. AD to say Appellant had “skipped out on soccer
games with the kids” and “he didn’t just do this to me. He did this to our children. And
he didn’t just hurt me, he’s hurt our children. He’s abandoned us plain and simple.”


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                   United States v. Dunlap, No. ACM 39567


military judge explained she found it “unclear” whether these impacts related
to the offense of adultery, or if they were “arising from the broken marriage.”
She also noted the court had not received any notice of designation of Article
6b representatives for the children.
    Trial counsel then requested the military judge reconsider her ruling block-
ing the following language in the unsworn statement about Appellant’s lack of
interest in his fifth child: “He has asked only once my entire pregnancy how
our baby is. When I asked him if he wanted to be involved in naming our child
he said, ‘Do whatever you want. Get rid of it. I don’t care what you do with it.’”
The military judge reversed her earlier ruling and allowed this language to
remain in Ms. AD’s unsworn statement. She added that “the victim impact
statement is not evidence. Therefore [the Mil. R. Evid.] 403 balancing test does
not apply,” but that even if the balancing test applies to matters submitted
under R.C.M. 1001A, “I would have conducted a [Mil. R. Evid.] 403 balancing
test, and in doing so, I would find that the [probative] value is not substantially
outweighed by the unfair prejudice.” The military judge did not identify what
the probative value of this information was.
    The military judge next asked Court Exhibit 1—Ms. AD’s original proposed
statement—to be marked as Appellate Exhibit IV, and the updated unsworn
to be made a new Court Exhibit 1. Afterwards, Ms. AD gave her unsworn state-
ment verbally to the court, largely detailing the impacts Appellant’s affair had
on her marriage to him and the struggles she was enduring as a result of her
separation from him.
    The Defense’s sentencing case consisted of documentary and photographic
evidence—for which the Defense obtained the military judge’s relaxation of the
rules of evidence under R.C.M. 1001(c)(3)—and Appellant’s written and verbal
unsworn statements, the latter of which was delivered in a question-and-an-
swer format led by trial defense counsel. In his verbal unsworn presentation,
Appellant said he had never told Ms. AD “get rid of it,” based on his personal
opposition to abortion, although he did acknowledge “saying something along
the lines of I don’t care or whatever name you choose is up to you.” Appellant
also apologized to a number of people, including his children, saying in part,
       So I would apologize to my kids that I wasn’t a better husband
       in the family. But I would also want them to know that I’ve never
       been a bad father, that I loved them from the second that they
       were born. . . . But I’ve always been there for them. I will always
       be there for them.
       . . . I just want them to know that I never abandoned them. I
       never did. I can’t be with them right now for a lot of reasons.




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                   United States v. Dunlap, No. ACM 39567


    Among the pictures introduced by Appellant are images of him playing with
his smiling children. One caption associated with the pictures reads, “I love my
children very much. I never wanted my children to suffer because of my ac-
tions. My biggest regret is that my children haven’t seen or heard from their
father in over a month. I never wanted them to hurt.”
    After the Defense rested, trial counsel sought to admit portions of Ms. AD’s
unsworn statement that the military judge had previously disallowed, arguing
they rebutted Appellant’s assertion that he had “always been there” for his
children. Trial counsel then told the military judge, “So I don’t have a way to
present that to you at this time and I’ll take your advisement as to how to
present that if it’s proper rebuttal.”
    Over Defense objection, the military judge permitted trial counsel to use
some, but not all, of the requested portions of Ms. AD’s unsworn statement as
rebuttal. She specifically permitted the additional following four sentences: (1)
“My children struggle to cope with or understand the little contact they have
with their father. He doesn’t call for months at a time. When he does he starts
the call with ‘I can’t talk long;’” and (2) “He doesn’t ask for updates on the
children’s schooling.”
   The following colloquy then appears in the trial transcript:
       ATC [assistant trial counsel]: So, your Honor, at the next oppor-
       tunity, we’ll introduce Court Exhibit 1 with those changes made
       to it and then still have the first original offered—
       MJ [military judge]: Why don’t you,—
       TC [trial counsel]: —document.
       MJ: —it may be easier, just offer it ‘cause I’d like to make it clear
       for the record what was offered as, as the—
       TC: Court Exhibit 1.
       MJ: —Court Exhibit 1. So let—well, there’s a couple ways we
       can handle it. We can either mark it as Court Exhibit 2 or if you
       want to offer it as a Prosecution Exhibit. I don’t think the mark-
       ing is really going to matter because really the Rules of Evidence
       are relaxed. I just think it’s important to mark for the Appellate
       record.
       TC: Yes, your Honor. I think we’ll mark it as Prosecution Exhibit
       19? Prosecution Exhibit 19.
Prosecution exhibit 19 was admitted into evidence.
   The next day, after the military judge announced the sentence, trial counsel
indicated they had made the changes to Prosecution Exhibit 19. The military

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                    United States v. Dunlap, No. ACM 39567


judge asked, “Defense counsel, did you have an opportunity to review this in
relationship to my ruling? Do you have any objections to this?” Trial defense
counsel replied, “Yes, your Honor. No objections.” Trial counsel then provided
the military judge and the court reporter Appellate Exhibit IV and Court Ex-
hibit 1, which the military judge described as the “edited version” of Ms. AD’s
unsworn statement.
   No court exhibits were included in the record of trial we received, and none
are listed in the record’s table of contents. Ms. AD’s written unsworn state-
ment, however, is included as Prosecution Exhibit 19.

                                      II. LAW
    In the Government’s sentencing case in aggravation, trial counsel may in-
troduce evidence of “aggravating circumstances directly relating to or resulting
from the offenses of which the accused has been found guilty.” R.C.M.
1001(b)(4). Such evidence in aggravation may include “evidence of financial,
social, psychological, and medical impact on or cost to any person . . . who was
the victim of an offense committed by the accused . . . .” Id. In order to admit
such evidence in aggravation, R.C.M. 1001 requires a showing of “the specific
harm caused by the [accused],” which is a higher standard than a showing of
“mere relevance.” United States v. Rust, 41 M.J. 472, 478 (C.A.A.F. 1995) (ci-
tations omitted). Not every consequence of an accused’s actions is admissible
in sentencing, as an accused may not be held responsible for “a never-ending
chain of causes and effects.” Id. (citation omitted). 5 The rule does “not authorize
the introduction of general evidence of . . . uncharged misconduct.” United
States v. Hardison, 64 M.J. 279, 281 (C.A.A.F. 2007) (quoting United States v.
Nourse, 55 M.J. 229, 231 (C.A.A.F. 2001)). In determining whether evidence
admitted in aggravation is “directly related” to the offenses which an appellant
was convicted of, we assess whether the evidence is both direct and “closely
related in time, type, and/or often outcome, to the convicted crime.” Id. at 281–
82. Even when evidence qualifies for admission under R.C.M. 1001(b)(4), its
probative value must still be weighed against its prejudicial impact under Mil.
R. Evid. 403. Id. at 281 (citation omitted).
    Article 6b, UCMJ, grants victims of offenses under the UCMJ the right to
be reasonably heard at sentencing hearings related to such offenses. 10 U.S.C.
§ 806b(a)(4)(B). A victim covered by this right is one “who has suffered direct
physical, emotional, or pecuniary harm as a result of the commission of an of-
fense under [the UCMJ].” 10 U.S.C. § 806b(b).



5 See also United States v. Stapp, 60 M.J. 795, 800 (A. Ct. Crim. App. 2004), aff’d on
other grounds, 64 M.J. 179 (C.A.A.F. 2006).


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                   United States v. Dunlap, No. ACM 39567


    Under R.C.M. 1001A, victims in non-capital cases may exercise their right
to be heard through sworn or unsworn statements. R.C.M. 1001A(b)(4)(B). Un-
sworn statements may be oral, written, or both. R.C.M. 1001A(e). Victims who
are under 18 years of age may make an unsworn statement either personally
or through a designee appointed under R.C.M. 801(a)(6). Id. Statements of-
fered under R.C.M. 1001A “may include victim impact or matters in mitiga-
tion,” and should neither exceed those topics nor recommend a specific sen-
tence. R.C.M. 1001A(c); R.C.M. 1001A(e), Discussion. Similar to the definition
under R.C.M. 1001, victim impact under R.C.M. 1001A means “any financial,
social, psychological, or medical impact on the victim directly relating to or
arising from the offense of which the accused has been found guilty.” R.C.M.
1001A(b)(2).
    “The rights afforded by Article 6b, UCMJ, and R.C.M. 1001A belong to vic-
tims, not the Government, and trial counsel may not appropriate the rights of
a victim in order to admit Government evidence in its aggravation case.”
United States v. Shoup, 79 M.J. 668, 671 (A.F. Ct. Crim. App. 2019) (citing
United States v. Hamilton, 78 M.J. 335, 342 (C.A.A.F. 2019)). Victim unsworn
statements are not government exhibits and are not to be admitted as such.
See, e.g., Hamilton, 78 M.J. at 337, 341; United States v. Jones, ARMY
20180189, 2019 CCA LEXIS 450, at *5 (A. Ct. Crim. App. 6 Nov. 2019) (unpub.
op.).
    An accused being sentenced by court-martial is entitled to make an un-
sworn statement “in extenuation, in mitigation or to rebut matters presented
by the prosecution, or for all three purposes . . . .” R.C.M. 1001(c)(2)(A). Alt-
hough the accused may not be cross-examined upon his unsworn statement,
the prosecution may “rebut any statements of facts therein.” R.C.M.
1001(c)(2)(C). “It is well settled that the function of rebuttal evidence is to ex-
plain, repel, counteract or disprove the evidence introduced by the opposing
party.” United States v. Banks, 36 M.J. 150, 167 (C.A.A.F. 1992) (citations
omitted). The “scope of rebuttal is defined by evidence introduced by the other
party.” United States v. Saferite, 59 M.J. 270, 274 (C.A.A.F. 2004) (citation
omitted).
    The Military Rules of Evidence apply during sentencing proceedings. Id. at
273 (citation omitted). Military judges are permitted to relax the rules of evi-
dence with respect to defense matters in extenuation or mitigation and “may
include admitting letters, affidavits, certificates of military and civil officers,
and other writings of similar authenticity and reliability.” R.C.M. 1001(c)(3);
Mil. R. Evid. 1101(b). When these rules are so relaxed, they may also be relaxed
“to the same degree” for evidence offered by the Government in rebuttal.
R.C.M. 1001(d). This relaxation “goes more to the question of whether the evi-
dence is authentic and reliable,” and does not convert otherwise inadmissible


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                   United States v. Dunlap, No. ACM 39567


evidence to admissible evidence. Saferite, 59 M.J. at 273 (quoting United States
v. Boone, 49 M.J. 187, 198 n.14 (C.A.A.F. 1998) (internal quotation marks omit-
ted)).
    We review a military judge’s decision to admit or exclude evidence for an
abuse of discretion. United States v. Hutchins, 78 M.J. 437, 444 (C.A.A.F. 2019)
(citations omitted). Military judges abuse their discretion when their “factual
findings are clearly erroneous, view of law is erroneous, or decision is outside
the range of reasonable choices.” Id. (citations omitted). In applying the Mil. R.
Evid. 403 balancing test, military judges enjoy “wide discretion.” United States
v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000) (citations omitted). However, we
give less deference to military judges’ decisions if they do not explain their
analysis on the record, and we give military judges no deference when they fail
to conduct the analysis at all. Id. (citations omitted).
    In the absence of an objection at trial, we review claims of erroneous ad-
mission of evidence for plain error, which is established when: (1) there is error;
(2) which was plain, clear, or obvious, and (3) the error resulted in material
prejudice to Appellant’s substantial rights. Hardison, 64 M.J. at 281 (citations
omitted). When evidence is improperly admitted during sentencing proceed-
ings, “the test for prejudice is whether the error substantially influenced the
adjudged sentence.” United States v. Barker, 77 M.J. 377, 384 (C.A.A.F. 2018)
(citation and internal quotation marks omitted). This is determined by evalu-
ating the relative strength of the parties’ cases along with the materiality and
quality of the evidence in question. Id. (citation omitted). “An error is more
likely to be prejudicial if the fact was not already obvious from the other evi-
dence presented at trial and would have provided new ammunition against an
appellant.” Id. (citation omitted).

                                 III. ANALYSIS
   Ms. AD’s unsworn statement was originally entered as a court exhibit un-
der R.C.M. 1001A, but it morphed wholesale into a prosecution exhibit in the
Government’s aggravation case with little explanation or rationale. This was
error, as was the military judge’s ruling permitting testimony by MSgt JW
about Appellant’s lack of communication with his children.
A. Ms. AD as a Victim under Article 6b, UCMJ, and R.C.M. 1001A
    The first question raised by Ms. AD’s unsworn statement is whether or not
she was properly identified as a victim in the first place under R.C.M. 1001A;
that is, whether a spouse is considered a victim of the UCMJ offense of adul-
tery. We were unable to locate any definitive statement of law on this point,
making this an issue of first impression for us.



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                   United States v. Dunlap, No. ACM 39567


    Many years ago, our superior court, the United States Court of Military
Appeals (now the United States Court of Appeals for the Armed Forces
(CAAF)), concluded adultery was a “violation of the marital bonds,” but not a
crime against the spouse, at least with respect to the marital privilege then in
existence. United States v. Rener, 37 C.M.R. 329, 332 (C.M.A. 1967) (quoting
United States v. Massey, 35 C.M.R. 246, 254 (C.M.A. 1965)). This holding led
to a change to the Manual for Courts-Martial, United States (1969 rev. ed.)
(1969 MCM), explicitly stating that adultery was an offense that would pierce
the marital privilege, although the 1969 MCM at the time was more of a “trea-
tise” than the set of evidentiary rules modern practitioners are familiar with
today. United States v. Taylor, 64 M.J. 416, 419 (C.A.A.F. 2007). The marital
privilege became part of the Military Rules of Evidence when Mil. R. Evid. 504,
marital privilege, was adopted in 1980. The 1984 MCM included the new Mil.
R. Evid. 504 and deleted the 1969 MCM’s discussion about the privilege, to
include the references to adultery. See Mil. R. Evid. 504, Manual for Courts-
Martial, United States (1984 ed.) (1984 MCM). The analysis of Mil. R. Evid.
504 in the 1984 MCM (and subsequent versions of the MCM), however, indi-
cated Mil. R. Evid. 504 was “similar” to the 1969 MCM’s provisions on the priv-
ilege. Id. at 420; see also 1984 MCM, App. A22, at A22–31. This led the CAAF
to conclude in Taylor that adultery is a “crime against the person or property”
of the spouse for purposes of piercing the Mil. R. Evid. 504 marital privilege,
because there is no evidence the President intended to abandon the discussion
in the 1969 MCM, even though that discussion had been long deleted. 64 M.J.
at 420.
    The offense of adultery in the MCM at the time of Appellant’s conduct 6
generally requires a direct impact of the offense on the military. Manual for
Courts-Martial, United States (2016 ed.) (MCM), pt. IV, ¶ 62.(c).(2). Unlike
most offenses in the MCM, the adultery provision contains a substantial dis-
cussion as to what should be considered in determining whether an act of adul-
tery is a crime under the UCMJ. Factors listed to assess whether adulterous
acts are prejudicial to good order and discipline or are service discrediting—
and thereby criminal offenses—include such considerations as effects on or-
ganization morale, teamwork, and efficiency; whether government time and
resources were misused to facilitate the conduct; whether the conduct was fla-
grant or in violation of orders to desist; and whether the parties involved were
legally separated. Id. Largely absent from this list is any reference to impacts
of the offense on spouses or other family members. The military status of the


6The adultery offense occurred between on or about 1 November 2017 and on or about
9 March 2018. The offense has since been redesignated as “extramarital sexual con-
duct.” See Manual for Courts-Martial, United States (2019 ed.) (2019 MCM), pt. IV, ¶
99.


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                   United States v. Dunlap, No. ACM 39567


spouse of the accused adulterer is listed as one factor, but only insofar as the
adulterous relationship impacts the spouse’s ability to perform his or her mil-
itary duties. Id. at ¶ 62.(c).(2)(d).
    Reading the MCM’s text on the adultery offense, one could conclude that
adultery is a crime in which the military is the victim, not the spouse. Moreo-
ver, the CAAF’s ruling in Taylor did not explicitly overrule the holding of Rener
that adultery is not a crime against the spouse; rather, the CAAF held the
addition of adultery to the list of offenses which would pierce the marital priv-
ilege in the 1969 MCM (and the later MCM analyses citing approvingly of the
1969 provision) essentially superseded Rener’s common law analysis. See Tay-
lor, 64 M.J. at 420 (no evidence that by adopting Mil. R. Evid. 504 the President
meant to jettison adultery exception listed in 1969 MCM). As such, Taylor can
be read to say less about who is or is not a victim of the offense of adultery and
more about how the analysis contained in the 1984 MCM and later MCMs can
be evidence of the drafters’ intent and breathe life back into deleted text.
    Since Taylor was decided, Article 6b was added to the UCMJ, giving victims
the right to be heard in certain portions of the military justice process, to in-
clude sentencing proceedings, a right implemented by R.C.M. 1001A. Both Ar-
ticle 6b and R.C.M. 1001A define covered victims as those who have “suffered
direct physical, emotional, or pecuniary harm,” thereby calling for a clear
nexus between the accused’s offenses and the harm suffered in order to con-
clude a person is a “victim” under the rule. Although adultery in the UCMJ is
focused on the impacts the offense has on the military, rather than the impacts
on a non-military spouse, we conclude the non-offending spouse may be a vic-
tim under Article 6b and R.C.M. 1001A depending on the facts of a given case.
We note that despite her overall dissent in Taylor, Judge Ryan concluded that
adultery is “an anti-marital offense,” an assessment she said “is intuitive and
a matter of common sense.” Taylor, 64 M.J. at 420 (Ryan, J., dissenting).
    In the instant case, Ms. AD outlined the emotional impact Appellant’s sex-
ual relations with A1C AJ had on her, in no small part because Appellant in-
sisted on telling Ms. AD about his sexual conduct with A1C AJ, to include the
fact they had sex in Ms. AD’s bed. She detailed her shock and frustration at
knowing her husband of more than ten years was having an intimate relation-
ship with one of his enlisted co-workers along with the toll that knowledge took
on her mental well-being. The emotional harm suffered by Ms. AD is directly
related to and proximately caused by the adultery Appellant committed with
A1C AJ. Although we do not reach the determination that non-offending
spouses are per se victims of adulterous conduct, we conclude under the facts
presented here that Ms. AD qualifies as a victim under Article 6b, UCMJ, and
R.C.M. 1001A.



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                   United States v. Dunlap, No. ACM 39567


B. The Scope of Ms. AD’s Unsworn Statement
    R.C.M. 1001(b)(4) limits evidence in aggravation to aggravating circum-
stances “directly relating to or resulting from the offenses of which the accused
has been found guilty.” R.C.M. 1001A similarly only permits presentation of
information “directly relating to or arising from” the offenses in question from
a person who has suffered a “direct” harm. Considering the similarity of these
two rules and the explicit requirement for a “direct” connection between the
offense and the harm, we conclude the rule permitting victim-impact testi-
mony, like the one permitting aggravation evidence, does not serve to open the
door to “a never-ending chain of causes and effects.” See Rust, 41 M.J. at 478.
Having determined Ms. AD is a victim who is entitled to provide an unsworn
statement to the court, the next question is the proper scope of that statement.
    As given at trial, Ms. AD’s unsworn statement focused primarily on the
impacts of the dissolution of her marriage, and the military judge permitted
her—over defense objection—to discuss Appellant’s negative reaction to find-
ing out she was pregnant with their fifth child, her moving to her parents’
house, and the financial challenges she was experiencing in providing for the
children. The military judge also permitted Ms. AD to discuss Appellant’s lack
of interest in Ms. AD’s pregnancy and soon-to-be-born child.
    In his providency inquiry, Appellant told the military judge he engaged in
sexual intercourse with A1C AJ in November 2017, then again in December
2017, and that they “had an ongoing sexual relationship from that time
through March of 2018.” Ms. AD moved out on 23 December 2017. During his
unsworn statement, Appellant explained how he had been feeling increasingly
distanced from Ms. AD well before his affair with A1C AJ. Although these mat-
ters were presented in an unsworn format, they highlight the difficulties in
drawing a straight line between the incidents of adultery and the dissolution
of the marriage, as the military judge in this case recognized when she found
it “unclear” whether certain issues raised by Ms. AD were caused by the adul-
tery or “the broken marriage” and concluded the latter was not proper victim-
impact information which must be excluded from Ms. AD’s statement. We are
similarly concerned about importing the wide array of frustrations and adver-
sity often associated with divorce proceedings into the specifically defined con-
cept of victim impact for particular offenses under the UCMJ.
    The relevant offense here, as relied upon by the Government at trial, is
adultery, which is rooted in extramarital sexual intercourse. Such conduct can
plainly be the impetus for separation and divorce; however, we cannot say di-
vorce necessarily follows instances of adultery. We likewise cannot say that
when a marriage dissolves after adulterous conduct that the two are causally
connected. In some cases, adultery may very well be the sole cause for marriage
to end. But, it is also entirely possible that adulterous conduct occurs alongside

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                     United States v. Dunlap, No. ACM 39567


a marriage failing for other reasons. 7 As explained above, a permissible victim-
impact statement under R.C.M. 1001A is that which addresses matters “di-
rectly relating to or arising from” the offenses Appellant has been convicted of,
and the court must find that direct connection before accepting the information
contained in such a statement.
     In this case, the relevant conduct Appellant was convicted of pertains to
him engaging in sexual intercourse with A1C AJ, a woman who was not his
wife, while he was married to Ms. AD. We find the psychological harm done to
Ms. AD by virtue of learning of Appellant’s misconduct is directly related to
the offense of adultery. Ms. AD’s feelings of anger and disgust, as expressed in
her unsworn statement, are predictable and natural consequences of Appel-
lant’s adulterous conduct and proper for a victim-impact statement. The con-
nection between Appellant’s adultery and his physical separation from Ms. AD
is less direct, but it is no large leap to conclude the adultery in this case was at
least a substantial contributing factor—if not the cause—of that separation.
Our assessment is buttressed by Appellant’s own testimony that his sexual
relationship with A1C AJ became “ongoing” in December, which was at the
same time Ms. AD moved out of the house. Thus, we conclude matters in Ms.
AD’s unsworn statement detailing the circumstances surrounding her and Ap-
pellant’s decision to separate, to include moving to her parents’ house and the
financial challenges she faced as a result, are appropriate victim-impact topics
under R.C.M. 1001A, and the military judge correctly overruled the defense
objection to these matters.
    Beyond the separation itself, the topics the military judge allowed Ms. AD
to raise became increasingly less connected to the offense of adultery. We can-
not conclude that Appellant’s reaction to learning Ms. AD was pregnant with
their fifth child was directly relating to or arising from Appellant’s adulterous
conduct. Appellant’s inflammatory conduct seems more directly tied to his lack
of desire to continue his marriage to Ms. AD, his frustration with the prospect
of bringing a new child into a dissolving household, and his irregular manner
of handling his personal affairs. Information about Appellant’s lack of interest
in Ms. AD’s pregnancy and in being involved with naming his fifth child is only
marginally related to his commission of the offense of adultery. R.C.M. 1001A,
however, requires more than a marginal relationship between offense and im-
pact—it requires the impact directly relate to or arise from the offense. We
readily recognize the significant pain and frustration Appellant’s indifference

7 Notably, in the 2019 MCM, a legal separation is an affirmative defense to extramar-
ital sexual conduct, the successor to the adultery offense. 2019 MCM, pt. IV, ¶ 99.c.(4).
In the 2016 MCM, legal separation is one factor to consider in determining whether
adulterous conduct violates the terminal element of Article 134, UCMJ, 10 U.S.C. §
934. MCM, pt. IV, ¶ 62.c.(2)(h).


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                    United States v. Dunlap, No. ACM 39567


towards his unborn child caused Ms. AD, but such indifference has not been
shown to directly relate to or arise from Appellant’s sexual intercourse with
A1C AJ. R.C.M. 1001A is not a vehicle to put every transgression by a convicted
accused before a sentencing authority; rather, it allows the victim to be heard
with respect to victim impact which has a direct nexus to the offenses for which
the accused has been convicted. This consideration is especially relevant in the
context of ongoing divorce proceedings, often replete with raw emotions and
sharp grievances. By permitting Ms. AD’s statement to address topics not di-
rectly relating to or arising from Appellant’s adultery offenses, beyond what is
authorized by R.C.M. 1001A, the military judge abused her discretion.
    We further agree with Appellant that his children were not victims under
Article 6b and R.C.M. 1001A. The children were not identified as victims dur-
ing trial, and the record does not indicate they were designated any represent-
atives under R.C.M. 801(a)(6). Considering our conclusion that a spouse is not
a per se victim of adultery, we find it unlikely that young children of a marriage
would qualify as victims of adultery under Article 6b and R.C.M. 1001A absent
some unusual factual predicate not present here. R.C.M. 1001A does not ex-
pressly permit one victim to provide a statement about the impact on another
victim, and we read the rule to limit victim statements to the impact on the
victim giving the statement. 8 That being said, one victim may very well vicar-
iously or secondarily be subjected to harm caused to another victim such that
the first victim could validly identify their own psychological injury as a result.
Indeed, a parent responsible for the safety and well-being of children and who
witnesses the suffering of those children may be harmed as much as, if not
more than, the children themselves. The injury, however, must still directly
relate to or arise from the offenses of which Appellant was convicted. In this
case, however, the impacts on the children largely arose from Appellant’s fig-
urative and literal absence from their lives, and not from Appellant’s adulter-
ous sexual conduct with A1C AJ.
    The military judge excluded most of the portions of Ms. AD’s unsworn state-
ment discussing the impacts on the children, but she permitted Ms. AD to com-
ment on Appellant missing soccer games and her view that he had hurt the
children and abandoned the family. Appellant did not object to this language
at trial and has forfeited this error as a result, and we review for plain error.
As explained above, not every hardship imposed by Appellant on his family can
be attributed to his adultery. We see no evidence that Appellant ceased to be
involved in his children’s lives because of his sexual misconduct. Rather, he
seems to have made the lamentable (but not criminal) decision to become an


8We recognize there may be cases in which one victim is designated to exercise another
victim’s rights, which may result in a different outcome.


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                   United States v. Dunlap, No. ACM 39567


absent parent to his children, commentary about which should have been ex-
cluded from Ms. AD’s unsworn statement. It was plain error to allow this in-
formation to remain in Ms. AD’s unsworn statement, especially in light of the
vigorous debate about similar comments in other portions of the statement. We
analyze whether Appellant suffered prejudice from this error below.
C. Ms. AD’s Statement as Rebuttal Evidence
    At the close of the Defense’s case, the military judge permitted trial counsel
to admit as rebuttal evidence four sentences from Ms. AD’s unsworn statement
impugning Appellant’s involvement in his children’s lives. This was a proper
subject of rebuttal, as Appellant had just attempted to give the military judge
the impression that he was a caring and responsible father. Appellant said in
his unsworn statement, “I’ve always been there for them. I will always be there
for them. . . . I just want them to know that I never abandoned them. I never
did.” Appellant further introduced pictures of his children, both with and with-
out him in the frames, and added captions professing his love for and commit-
ment to them.
    Appellant’s devotion—or lack thereof—to his children was not a relevant
issue in his trial until he made it one in his unsworn statement in an effort to
receive a reduced sentence. Because Appellant tried to portray himself as a
caring and supportive father, the Government was permitted to show that he
was not, or at least not as caring and supportive as he claimed. See, e.g., Manns,
54 M.J. at 166.
    Because the rules of evidence had been relaxed at this point, the Govern-
ment did not have to meet typical evidentiary requirements of authenticity and
reliability. As the Defense submitted several signed but unsworn letters from
friends and former co-workers of Appellant, the Government could have offered
similar documents in rebuttal. Instead, Ms. AD’s entire unsworn statement
was admitted into evidence as a prosecution exhibit, including the additional
four sentences. Contrary to the military judge’s perspective that it was not “re-
ally going to matter,” once the exhibit became a prosecution exhibit it was no
longer an unsworn victim-impact statement—it was transformed into evidence
in the Government’s rebuttal case. While the Government was permitted to
rebut statements of fact contained in Appellant’s unsworn statement, the scope
of that rebuttal was constrained by the scope of the factual assertions in Ap-
pellant’s unsworn statement, which Ms. AD’s statement far eclipsed. Rather




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                     United States v. Dunlap, No. ACM 39567


than a tailored rebuttal, the Government offered, and the military judge ad-
mitted, a wide-ranging unsworn statement from Ms. AD as a prosecution ex-
hibit upon the suggestion of the military judge. 9
    As explained above, R.C.M. 1001A permits a victim to provide information
to the court-martial about the impacts they have suffered as a result of an ac-
cused’s offenses. The admission of Ms. AD’s entire unsworn statement as a
prosecution exhibit, ostensibly in rebuttal to a single point from Appellant’s
own unsworn statement, was plain error and an abuse of the military judge’s
discretion.
D. MSgt JW’s Testimony
    During the Government’s sentencing case, and prior to Ms. AD giving her
unsworn statement, MSgt JW testified—over defense objection—that he had
encouraged Appellant to talk to his children and offered to facilitate phone calls
between him and his children, but Appellant would decline, saying that “this’ll
all be over soon” and the children would “find out some day the truth of all
this.” This evidence was admitted prior to Appellant’s unsworn statement.
Trial counsel’s circular argument that Appellant’s statements “demonstrate
the aggravating nature of the situation” due to the “aggravating nature of the
crimes,” of which adultery is one, does not make a convincing case for admis-
sion of this evidence. 10 Rather, the evidence, at its most outer edges, goes to
whether or not Appellant is a devoted father—an irrelevant issue at the stage
of the trial in which it came in. An alternative reading of this evidence is that




9 Although trial defense counsel objected to the evidence offered in rebuttal, they did
not object when Prosecution Exhibit 19 was admitted into evidence. After the sentence
was announced, the military judge asked the Defense whether they had any objections
to the exhibit, and trial defense counsel answered in the negative. Under Mil. R. Evid.
103(b), parties need not renew objections after a military judge has ruled “definitively
on the record admitting or excluding evidence” in order to preserve a claim of error for
appeal. By only objecting to the evidence offered in rebuttal and not the entire exhibit,
Appellant has forfeited the issue in the absence of plain error. See United States v.
Eslinger, 70 M.J. 193, 197–98 (C.A.A.F. 2011). Even though Appellant arguably waived
the issue by stating no objection after both the exhibit had been admitted and the sen-
tence had been announced, we exercise our authority under Article 66(c), UCMJ, 10
U.S.C. § 866(c), to address this error. See United States v. Chin, 75 M.J. 220, 222–23
(C.A.A.F. 2016).
10The Government’s argument on appeal, that Appellant’s statement was evidence he
was “trivializing his confinement and alluding to some ‘truth’ his children would some-
day learn” which was evidence of his “attitude toward his adultery offense,” is similarly
uncompelling.


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                   United States v. Dunlap, No. ACM 39567


Appellant may have wished to avoid having conversations with his young chil-
dren while he was in jail awaiting trial on charges of sexual and professional
indiscretions.
    Regardless, the probative value of Appellant’s decisions about whether or
how much to talk to his children was non-existent. The elicitation of this evi-
dence was seemingly designed to demonstrate not the aggravating circum-
stances or victim impact of Appellant’s offenses, but instead to paint Appellant
as a poor father. Because the evidence lacked probative value, it served only as
a waste of time and distraction, irrelevantly suggesting Appellant did not care
about his small children. Because the military judge did not place an analysis
under Mil. R. Evid. 403 on the record, we give her ruling no deference and
conclude her admission of this evidence was an abuse of her discretion.
E. Prejudice to Appellant
    Having determined the military judge erred in admitting both Ms. AD’s
unsworn statement and portions of MSgt JW’s testimony as prosecution evi-
dence, as well as permitting Ms. AD to discuss Appellant’s reaction to and lack
of interest in her pregnancy with their fifth child, we must assess the impact
of these errors on Appellant’s sentence by determining whether the errors “sub-
stantially influenced the adjudged sentence.” Barker, 77 M.J. at 384 (citation
omitted).
   Appellant was charged with and pleaded guilty to significant offenses. His
adulterous fraternization with a junior Airman in the same office not only drew
the attention of co-workers, but resulted in both Appellant and the Airman
being removed from their positions. Moreover, he persisted in his misconduct
even after being ordered into pretrial confinement. Despite the severity of
these offenses, the Government’s case in aggravation veered into tangential
aspects of Appellant’s marriage and his relationship with his children.
    To be sure, Appellant invited a degree of this distraction by seeking to por-
tray himself as a devoted father to the military judge. In doing so, he opened
the door to the Government rebutting that portrayal. While MSgt JW’s testi-
mony about Appellant’s lack of interaction with his children should not have
been permitted in the Government’s sentencing case in chief, the testimony
would have been admissible in rebuttal as long as Appellant made factual as-
sertions to the contrary during the Defense’s case. The problem with this con-
struct, however, is that we have no way of knowing whether Appellant would
have sought to portray himself as a devoted father in his sentencing case had
MSgt JW’s testimony been correctly disallowed. That is, we do not know if Ap-
pellant’s unsworn statement and sentencing exhibits on these points were de-
signed to counteract MSgt JW’s testimony that Appellant was disinterested in




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                    United States v. Dunlap, No. ACM 39567


talking to his children. The wholesale admission of Ms. AD’s unsworn state-
ment as a prosecution exhibit only served to compound the error, potentially
raising the question of how much of Appellant’s sentence was attributed to
Appellant’s interactions with his family as opposed to his actual offenses under
the UCMJ. Trial counsel’s sentencing argument largely focused on the military
aspects of Appellant’s offenses, but they also argued to the military judge in
support of their sentencing recommendation for 180 days of confinement: “But
that’s him being a good father. He says he’s a good father, but he doesn’t care
if his fifth baby is named.” 11
    In spite of these errors, Appellant’s offenses were significant, both in terms
of impropriety and the impact they had on his unit. One of the greatest aggra-
vating factors is Appellant’s repeated refusal to follow his commander’s orders,
even after being placed in pretrial confinement—strong evidence of low reha-
bilitative potential. We conclude the errors in this case were harmless, espe-
cially in light of comments by the military judge who was also the sentencing
authority. The military judge’s view that there was little or no significance to
Ms. AD’s unsworn statement being made a prosecution exhibit versus a court
exhibit indicates she did not give the statement any greater weight, and in-
stead gave Ms. AD’s statement the weight it was due. The military judge also
explicitly highlighted the distinction between the injury caused by Appellant’s
offenses and the injury caused by the disintegration of his marriage to Ms. AD.
“Military judges are presumed to know the law and to follow it absent clear
evidence to the contrary.” United States v. Erickson, 65 M.J. 221, 225 (C.A.A.F.
2007) (citing United States v. Mason, 45 M.J. 483, 484 (C.A.A.F. 1997)). Despite
erroneously admitting portions of MSgt JW’s testimony and portions of Ms.
AD’s unsworn statement, in addition to allowing Ms. AD’s unsworn statement
to be admitted as a prosecution exhibit, we are convinced the military judge
gave the evidence the appropriate weight and Appellant’s sentence was not
substantially influenced by these errors.

                                IV. CONCLUSION
    The approved findings and the sentence are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).




11Trial counsel also recommended Appellant be sentenced to a dismissal and to forfeit
all pay and allowances.


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                 United States v. Dunlap, No. ACM 39567


   Accordingly, the approved findings and sentence, as modified, are AF-
FIRMED.


                  FOR THE COURT



                  CAROL K. JOYCE
                  Clerk of the Court




                                  18
