           UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                       Airman First Class JEFFERSON R. McFADDEN
                                   United States Air Force

                                               ACM 38597

                                           18 November 2015

         Sentence adjudged 19 December 2013 by GCM convened at McConnell Air
         Force Base, Kansas. Military Judge: Joshua E. Kastenberg (sitting alone).

         Approved Sentence: Dishonorable discharge, confinement for 20 years,
         forfeiture of all pay and allowances, and reduction to E-1.

         Appellate Counsel for the Appellant: Major Jennifer J. Raab; Major
         Thomas A. Smith; and Major Anthony D. Ortiz.

         Appellate Counsel for the United States: Captain Richard J. Schrider and
         Gerald R. Bruce, Esquire.

                                                  Before

                              TELLER, ZIMMERMAN, and KIEFER
                                   Appellate Military Judges

                                     OPINION OF THE COURT

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                              under AFCCA Rule of Practice and Procedure 18.4.



KIEFER, Judge:

       Appellant pled not guilty at trial by military judge alone to multiple specifications
of attempted murder, robbery, assault, housebreaking, fleeing apprehension, and unlawful
entry in violation of Articles 80, 122, 128, 130, and 134, UCMJ, 10 U.S.C. §§ 880, 922,
928, 930 and 934. Appellant was convicted of four specifications of robbery, two
specifications of unlawful entry, one specification of fleeing apprehension, one
specification of aggravated assault, and one specification of assault. Appellant was
sentenced to reduction to the grade of E-1, forfeiture of all pay and allowances,
confinement for 20 years, and a dishonorable discharge.                            The convening authority
approved the sentence as adjudged.

       Appellant was implicated in a series of robberies in Wichita, Kansas. On 3 March
2013, Appellant robbed a Family Dollar store, assaulting an employee in the process.
Civilian law enforcement officials responded, and Appellant fled to a nearby apartment
building where he unlawfully entered the basement in an attempt to evade police. He was
eventually apprehended. Through the use of DNA collected from Appellant and
surveillance video, Appellant was linked to two previously unsolved robbery
investigations. Appellant was transferred to military pretrial confinement on 22 April
2013, was arraigned on 5 August 2013, and tried from 16–19 December 2013 at
McConnell Air Force Base, Kansas.

       Appellant raises 11 assignments of error with regard to his findings and sentence,
asserting that the military judge’s exceptions and substitutions created a fatal variance;
that the evidence was factually and legally insufficient; that the military judge failed to
inquire into potential speedy trial violations; that the offense of fleeing apprehension
under Article 134, UCMJ, was preempted; that the military judge granted him insufficient
credit for illegal pretrial punishment; that his sentence was inappropriately severe; and
that cumulative error prevented him from receiving a fair trial.1

                  Findings by Exceptions and Substitutions and Fatal Variance

       Appellant maintains that the military judge created a fatal variance in convicting
him by exceptions and substitutions of the lesser included offense (LIO) of aggravated
assault by bodily harm based upon the charge of armed robbery by creating fear alleged
in Specification 1 of the Second Additional Charge. The Government charged Appellant
with robbery of CR within her home in violation of Article 122, UCMJ. The charge
specifically alleged that the robbery was committed “by means of putting [CR] in fear
with a firearm and a knife.” The military judge found Appellant not guilty of the
robbery, but guilty of an assault with a dangerous weapon or other means or force likely
to produce death or grievous bodily harm in violation of Article 128, UCMJ. The
military judge excepted the words “by means of putting her in fear with a firearm and a
knife steal from the presence of [CR], against her will, some amount of money, the
property of [CR],” and substituted the words “commit an assault upon [CR] by striking
her with objects likely to produce death or grievous bodily harm to wit: a firearm and a
knife.” Appellant argues that these findings created a fatal variance.

      “Whether there was a fatal variance is a question of law reviewed de novo.”
United States v. Treat, 73 M.J. 331, 335 (C.A.A.F. 2014). “When defense counsel fails

1
  The final five assignments of error as well as the factual and legal sufficiency claim pertaining to the aggravated
assault are raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).


                                                         2                                             ACM 38597
to object at trial, we review a military judge’s findings by exceptions and substitutions for
plain error.” Id. (citing United States v. Finch, 64 M.J. 118, 121 (C.A.A.F. 2006)).

        To prevail on a fatal variance claim, Appellant must show both that the variance
was material and that the variance substantially prejudiced him. United States v.
Marshall, 67 M.J. 418, 420 (C.A.A.F. 2009). A variance is material if it substantially
changes the nature of the offense, increases the seriousness of the offense, or increases
the punishment of the offense. Id. (quoting Finch, 64 M.J. at 121). “A variance can
prejudice an appellant by (1) putting him at risk of another prosecution for the same
conduct, (2) misleading him to the extent that he has been unable adequately to prepare
for trial, or (3) denying him the opportunity to defend against the charge.” Id. (quoting
United States v. Teffeau, 58 M.J. 62, 67 (C.A.A.F. 2003)) (internal quotation marks
omitted). “Where an offense is a lesser included offense of the charged offense, an
accused is by definition on notice because it is a subset of the greater offense alleged.”
United States v. Medina, 66 M.J. 21, 27 (C.A.A.F. 2008). Accordingly, if the findings
constitute a proper LIO of the charged offense, any variance is not fatal.

       There is substantial authority for the proposition that aggravated assault is an LIO
of robbery. The Manual for Courts-Martial lists assault with a dangerous weapon under
Article 128, UCMJ, as an enumerated LIO of robbery under Article 122, UCMJ. Manual
for Courts-Martial, United States (MCM), pt. IV, ¶ 47.d.(4) (2012 ed.). Similarly, other
courts have found various types of assaults, including aggravated assaults with a
dangerous weapon or other means or force likely to produce death or grievous bodily
harm, to be LIOs of robbery. See, e.g., United States v. Szentmiklosi, 55 M.J. 487, 491
(C.A.A.F. 2001); United States v. Jones, 34 M.J. 1229, 1230 (N.M.C.M.R. 1992); see
also United States v. Calhoun, 16 C.M.R. 311, 312 (A.B.R. 1954).

       In evaluating whether one offense is a lesser included offense of another, courts
apply an “elements test.” United States v. Wilkins, 71 M.J. 410, 412 (C.A.A.F. 2012)
(citing United States v. Jones, 68 M.J. 465, 468 (C.A.A.F. 2010)). “The test does not
require that the ‘offenses at issue employ identical statutory language.’” Id. (quoting
United States v. Alston, 69 M.J. 214, 216 (C.A.A.F. 2010)).

       Comparing the basic elements of Article 122, robbery, with Article 128,
aggravated assault with a dangerous weapon or other means or force likely to produce
death or grievous bodily harm, the only difference is that robbery requires a wrongful
taking of property of some value of another. The third element of robbery requires
“[t]hat the taking was by means of force, violence, or force and violence, or putting the
person in fear of immediate or future injury to that person . . . .” MCM, pt. IV, ¶ 47.b.(3).
The seventh element of robbery, if the offense was allegedly committed with a firearm,
requires “[t]hat the means of force or violence or of putting the person in fear was a
firearm.” MCM, pt. IV, ¶ 47.b.(7).



                                              3                                   ACM 38597
       By comparison, the elements of Article 128, assault with a dangerous weapon or
other means or force likely to produce death or grievous bodily harm, are:

              (i) That the accused attempted to do, offered to do, or did
              bodily harm to a certain person;

              (ii) That the accused did so with a certain weapon, means, or
              force;

              (iii) That the attempt, offer, or bodily harm was done with
              unlawful force or violence; and

              (iv) That the weapon, means, or force was used in a manner
              likely to produce death or grievous bodily harm.

MCM, pt. IV, ¶ 54.b.(4)(a).

       Appellant specifically asserts that Specification 1 of the Second Additional Charge
“alleged a robbery by ‘means of putting [CR] in fear with a firearm and a knife’ but does
not allege by means of force or violence.” Although the elements of robbery preclude
both taking accomplished by actual force as well as by putting the victim in fear of
immediate or future injury, only one such manner was alleged in the charge. “The charge
sheet itself gives content to [the general language of the statute], thus providing the
required notice of what an accused must defend against.” United States v. Jones, 68 M.J.
465, 472 (C.A.A.F. 2010). The military judge in this case substituted language
convicting Appellant of aggravated assault by bodily harm, finding that Appellant
committed the assault “by striking [CR] with objects likely to produce death or grievous
bodily harm, to wit: a firearm and a knife.” We apply the elements test in light of its
purpose, testing whether Appellant had reason to be on notice of the elements of the LIO
of which he stands convicted by examining the elements of the offense as it was reflected
on the charge sheet. In this case, we find that Appellant was not on notice that he was
required to defend against the charge of actual bodily harm to CR, and therefore the
offense comprised by the language substituted by the military judge was not necessarily
included in the charged offense.

        Nevertheless, we may ourselves sustain a conviction to an LIO of aggravated
assault by bodily harm as long as that LIO is based upon a theory presented to the
military judge. “If the evidence is sufficient to establish an included offense, this Court
may affirm the included offense, provided that it does not do so on a theory not presented
to the trier of fact.” United States v. Standifer, 40 M.J. 440, 445 (C.M.A. 1994). There is
no question on the facts of this case that aggravated assault by offer is a lesser included
offense of aggravated assault by bodily harm. However, to comply with the notice
requirements discussed above, it must also be an LIO of the charged offense. Although


                                             4                                  ACM 38597
the language is not identical, the four elements of aggravated assault by offer, rather than
bodily harm, are necessarily included in the two elements of robbery as alleged on the
charge sheet. We find that the element of aggravated assault requiring the offer be done
with unlawful force or violence was necessarily included in the element of the charged
offense that Appellant placed the victim in fear with a firearm and a knife. Accordingly,
we disapprove the finding of guilt to the offense of aggravated assault by bodily harm but
affirm a finding of guilt to the lesser include offense of aggravated assault by offer as set
out in the decretal paragraph below.

          Challenges to Legal and Factual Sufficiency of Various Specifications

      Appellant challenges the legal and factual sufficiency of specifications involving
unlawful entry of CR’s home, aggravated assault against CR, armed robbery of Little
Caesar’s, armed robbery of Dollar General and TG, and unlawful entry of BA’s home.

       This court reviews issues of legal and factual sufficiency de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The test for legal sufficiency is
“whether, considering the evidence in the light most favorable to the prosecution, a
reasonable factfinder could have found all the essential elements beyond a reasonable
doubt.” United States v. Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002) (quoting United
States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987)) (internal quotation marks omitted). In
applying this test, “we are bound to draw every reasonable inference from the evidence of
record in favor of the prosecution.” United States v. Barner, 56 M.J. 131, 134 (C.A.A.F.
2001); see also United States v. McGinty, 38 M.J. 131, 132 (C.M.A. 1993).

       The test for factual sufficiency is “whether, after weighing the evidence in the
record of trial and making allowances for not having personally observed the witnesses,
[we are] convinced of the [appellant]’s guilt beyond a reasonable doubt.” Turner, 25
M.J. at 325. In conducting this unique appellate role, we take “a fresh, impartial look at
the evidence,” applying “neither a presumption of innocence nor a presumption of guilt”
to “make [our] own independent determination as to whether the evidence constitutes
proof of each required element beyond a reasonable doubt.” Washington, 57 M.J. at 399.
The term reasonable doubt, however, does not mean that the evidence must be free from
conflict. United States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986). Our assessment of
legal and factual sufficiency is limited to the evidence produced at trial. United States v.
Dykes, 38 M.J. 270, 272 (C.M.A. 1993).

1. Unlawful Entry of CR’s Home

       Appellant challenges the legal and factual sufficiency of his conviction for Article
134, unlawful entry of CR’s home. For this specification, the Government was required
to prove beyond a reasonable doubt:



                                              5                                   ACM 38597
             (1) That [Appellant] entered the real property of
             [CR] . . . ;

             (2) That such entry was unlawful; and

             (3) That, under the circumstances, the conduct of
             [Appellant] was . . . of a nature to bring discredit upon
             the armed forces.

MCM, pt. IV, ¶ 111.b.

       CR herself testified under oath that Appellant entered her house without
permission. There was also ample evidence surrounding the entry and what occurred
within the house that could lead a reasonable person to conclude that the entry was
without authority and was of a nature to bring discredit upon the armed forces.
Consequently, from a legal sufficiency standard, CR’s testimony satisfies the elements of
the charged offense.

        The real focus of Appellant’s argument is the credibility of CR and factual
sufficiency. While Appellant may believe CR’s testimony is untrustworthy, a factfinder,
including our review under Article 66(c), UCMJ, 10 U.S.C. § 866(c), is free to come to a
different conclusion. While we have the independent authority and responsibility to
weigh the credibility of the witnesses in determining factual sufficiency, we recognize
that the trial court saw and heard CR’s testimony. See United States v. Moss, 63 M.J.
233, 239 (C.A.A.F. 2006) (stating it is the members’ role to determine whether testimony
is credible or biased).

       We have considered the alleged inconsistencies, discrepancies, and bias in CR’s
testimony as advanced by Appellant. We note that testimony need not be completely
consistent to still be sufficiently reliable to sustain a conviction, and we do not confine
our analysis to merely the testimony of a single witness in performing our factual
sufficiency review under Article 66, UCMJ. In this instance, the record contains
testimony from other witnesses who observed CR’s demeanor following the altercation
with Appellant and photographs of CR’s injuries and the crime scene consistent with
CR’s testimony of an altercation with Appellant. Considering all the evidence in the case
and applying the appropriate standards, we are convinced of Appellant’s guilt of unlawful
entry into CR’s home beyond a reasonable doubt.




                                             6                                  ACM 38597
2. Lesser Included Offense of Aggravated Assault of CR

       Appellant challenges the legal and factual sufficiency of his conviction for an
aggravated assault against CR.2 To be found guilty of aggravated assault in this instance,
the prosecution had to prove beyond a reasonable doubt:

                    (i) That [Appellant] attempted to do, offered to do, or did
                    bodily harm to [CR];

                    (ii) That [Appellant] did so with a [knife and a firearm];

                    (iii) That the attempt, offer, or bodily harm was done with
                    unlawful force or violence; and

                    (iv) That the [firearm and knife were] used in a manner
                    likely to produce death or grievous bodily harm.

MCM, pt. IV, ¶ 54.b.(4)(a).

       As discussed above, we approve only the finding of guilt to the LIO of aggravated
assault by offer. CR’s testimony satisfies all of the elements of that offense. Although
she testified that Appellant struck her with the gun and knife which would constitute
bodily harm, under the circumstances it was clear that she apprehended the harm just
before it occurred. Based on the testimony of CR, there was no lawful justification for
the assault. The only question is whether the use of the gun and knife was likely to
produce death or grievous bodily harm.

       Grievous bodily harm is defined as “serious bodily injury,” including “fractured or
dislocated bones, deep cuts, torn members of the body, serious damage to internal organs,
and other serious bodily injuries.” MCM, pt. IV, ¶ 54.c(4)(a)(iii). CR testified to being
struck in the face with the knife which caused cuts and bleeding and to being struck in the
head with the gun which rendered her unconscious. She also testified that Appellant held
the knife to her throat as he walked her around the home looking for valuables. A
reasonable person could conclude from this evidence that Appellant used the knife and
gun in a manner likely to produce death or grievous bodily harm. Accordingly, the
finding of guilt for the lesser included offense of aggravated assault by offer is legally
sufficient.

       Again the defense’s primary challenge is that CR’s testimony is not credible. As
described with respect to the unlawful entry, while we do consider credibility with


2
    This issue is raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).


                                                            7                                 ACM 38597
respect to factual sufficiency, we are convinced beyond a reasonable doubt of Appellant’s
guilt with respect to this offense.

3. Armed Robbery of Little Caesar’s

        Appellant challenges the legal and factual sufficiency of his conviction for armed
robbery of Little Caesar’s. For this specification the Government was required to prove
the following elements beyond a reasonable doubt:

             (1) That [Appellant] wrongfully took certain property from
             the person or from the possession and in the presence of a
             person named or described;

             (2) That the taking was against the will of that person;

             (3) That the taking was by means of force, violence, or force
             and violence, or putting the person in fear of immediate or
             future injury to that person . . . ;

             (4) That the property belonged to a person named or
             described;

             (5) That the property was of a certain or of some value; . . .

             (6) That the taking of the property by the accused was with
             the intent permanently to deprive the person robbed of the use
             and benefit of the property[; and]

             (7) That the means of force or violence or of putting the
             person in fear was a firearm.

MCM, pt. IV, ¶ 47.b.

       The Government presented the testimony of multiple witnesses who testified to a
man coming into the Little Caesar’s store, showing a gun, demanding money, and placing
those in the store in fear of immediate injury if they did not comply with his demands.
They testified to the man unlawfully taking money from the Little Caesar’s cash register.
These witnesses provided similar accounts of the event and descriptions of the
perpetrator. The Government also presented physical evidence including footwear, other
clothing, and shoe prints, along with video evidence to link Appellant to the crime. The
testimony of the multiple witnesses satisfied the elements of the offense of robbery under
Article 122 and is legally sufficient to sustain the conviction.



                                            8                                  ACM 38597
       Further, upon review of all of the evidence in the case, we are convinced beyond a
reasonable doubt of Appellant’s guilt with respect to the armed robbery of Little Caesar’s
on or about 9 February 2013.

4. Armed Robbery of Dollar General and TG

       Appellant challenges the legal and factual sufficiency of his conviction for armed
robbery of Dollar General and TG. TG was a clerk in the store at the time of the incident.
For this specification, the Government was required to prove the same basic elements as
required for Assignment of Error IV, the armed robbery of Little Caesar’s.

        The Government presented the testimony of TG, who testified to Appellant
holding him at gun point and demanding money from the Dollar General cash register as
well as TG’s personal money. TG testified to the fear he experienced based on how
Appellant showed and used the gun, which fear was reasonable based on all of the facts
and circumstances. TG also testified to Appellant taking money from the cash register
and TG’s wallet without lawful permission. The Government also presented physical and
video evidence linking Appellant to the crime. TG’s testimony and the physical evidence
satisfied all of the elements of the armed robberies against both Dollar General and TG
and are legally sufficient to sustain the conviction.

       Further, we are convinced based on our review of the entire record of Appellant’s
guilt beyond a reasonable doubt with respect to these armed robberies.

5. Unlawful Entry of BA’s Home

        In Assignment of Error VIII, Appellant challenges the legal and factual sufficiency
of his conviction for unlawful entry of BA’s home. BA was the owner of a residence that
was occupied by SL on or about 3 March 2013. Appellant was arrested by civilian law
enforcement officers in the basement of this residence. Appellant alleges that the
evidence is factually and legally insufficient to sustain his conviction for this offense.
Primarily, Appellant argues that SL gave him permission to enter the basement of this
dwelling by the statement, “You better run to a basement.” Appellant argues that this
statement constituted permission for Appellant to take refuge in the home’s basement
while fleeing apprehension. However, taking all reasonable inferences in the light most
favorable to the prosecution in our legal sufficiency analysis, this statement does not
constitute permission to enter the dwelling, especially in the context of the entirety of
SL’s testimony. Although not specifically raised by Appellant, we have also considered
whether Appellant could have been under a reasonable mistake of fact as to permission to
enter the basement, but upon review of the entirety of SL’s testimony, we find that such
conclusion, even if subjectively believed by Appellant, is not objectively reasonable.




                                             9                                  ACM 38597
       Further, SL also testified that at some point Appellant’s foot was inside the door of
the house to the point that she had to force the door closed. An entry for the offense of
unlawful entry under Article 134 consists of “any part of the body, even the finger.”
MCM, pt. IV, ¶ 55.c(3). Given this definition, Appellant’s foot in the doorway could
constitute an unlawful entry aside from anything that happened with respect to the
basement.

       We have reviewed the entirety of SL’s testimony as well as the other evidence
regarding Appellant’s entry into and arrest in the basement, and we are convinced beyond
a reasonable doubt of Appellant’s guilt with respect to an unlawful entry of BA’s home.

                              Rule for Courts-Martial 707 Speedy Trial

        Appellant argues that the military judge erred by failing to inquire into whether
Appellant received a speedy trial under Rule for Courts-Martial (R.C.M.) 707.3
Appellant concedes that this claim was never raised during his trial. Nor does Appellant
claim he is entitled to relief on any other basis such as Article 10, UCMJ, or the 5th or
6th Amendments of the Constitution.4 Essentially, Appellant for the first time on appeal
raises solely an R.C.M. 707 speedy trial claim.

       The R.C.M.s make clear that the burden is on appellants and not military judges to
raise speedy trial issues at trial and that a failure to do so may result in waiver. See
R.C.M. 707(e), Discussion; R.C.M. 905(e), 907(b)(2)(A). A military judge is not
required to conduct a speedy trial inquiry with an appellant and failure to conduct such an
inquiry is not error. United States v. Berg, ACM 36989, unpub. op. at 4 (A.F. Ct. Crim.
App. 24 September 2008). Consequently, by failing to raise an R.C.M. 707 speedy trial
issue prior to final adjournment, Appellant forfeited this issue.

       When an issue is forfeited by failure to raise it during the trial, 5 it is subject only to
plain error review. United States v. Harcrow, 66 M.J. 154, 156 (C.A.A.F. 2008). Under
a plain error analysis, the appellant must demonstrate that “(1) there was error; (2) the
error was plain and obvious; and (3) the error materially prejudiced a substantial right of
the [appellant].” United States v. Clifton, 71 M.J. 489, 491 (C.A.A.F. 2013) (citing
United States v. Powell, 49 M.J. 460, 464–65 (C.A.A.F. 1998)). The appellant bears the
burden of establishing plain error. United States v. Hardison, 64 M.J. 279, 281 (C.A.A.F.
2007).

       Even if we were to evaluate an R.C.M. 707 speedy trial issue for the first time on
appeal based on the record before us, Appellant’s challenge would fail. Appellant alleges

3
  This issue is raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
4
  U.S. CONST. amend. V, VI.
5
  In the absence of any evidence that Appellant knowingly declined to assert this claim at trial, we consider it
forfeited and not waived.


                                                      10                                           ACM 38597
that he entered civilian pretrial confinement on 3 March 2013 based on an off-base arrest,
by civilian police officers, for an offense committed off base. He later entered military
pretrial confinement on 22 April 2013 and was “brought to trial” through arraignment on
5 August 2013. A period of 8 days from 24 June 2013 through 1 July 2013 was excluded
for speedy trial purposes.

       Our superior court “has long recognized that the military is not accountable for the
time an accused serves in civilian confinement as a result of civil offenses.” United
States v. Bragg, 30 M.J. 1147, 1147 (A.F.C.M.R. 1990); see also United States v. Grom,
21 M.J. 53, 56 (C.M.A.1985); United States v. Reed, 2 M.J. 64, 67 (C.M.A. 1976);
United States v. Williams, 30 C.M.R. 81 (C.M.A. 1961). Evaluating the facts presented
by Appellant on appeal, because he was arrested off base, by civilian authorities for what
was at that time a civil offense, his R.C.M. 707 speedy trial clock for any military
offenses did not begin until he was placed in military pretrial confinement on 22 April
2013. Appellant was arraigned on 5 August 2013, which constitutes a period of 105
days. This does not include the 8 days excluded from speedy trial consideration.
Consequently, we find that Appellant has failed to show that there was error, or that any
error was plain or obvious.

               Article 95 Preemption of Article 134 Offense of Fleeing Apprehension

      Appellant argues on appeal for the first time that his conviction for fleeing
apprehension under Article 134 was improper because the Article 134 offense is
preempted by Article 95.6 While Article 95 does include an offense for “fleeing
apprehension,” it defines those authorized to apprehend by reference to R.C.M. 302.
Under R.C.M. 302(b), only military law enforcement officials, and commissioned,
warrant, petty, and non-commissioned officers are authorized to apprehend military
members for military offenses, other than desertion. Civilian law enforcement officers
may arrest military members for commission of civil criminal offenses; however, this
does not trigger Article 95.

       Our sister court has held on multiple occasions that “resistance of apprehension by
nonmilitary affiliated civilian law enforcement officers for nonmilitary offenses was not
subject to court-martial under Article 95.” United States v. Rhodes, 47 M.J. 790, 793 (A.
Ct. Crim. App. 1998); see also United States v. Williams, 26 M.J. 606, 609 (A.C.M.R.
1988) (“[W]e find no evidence that Congress intended that Article 95 should cover more
than resisting apprehension or escape from custody of those with military authority.”).

       The distinction with an Article 134 offense for fleeing apprehension is the
requirement to prove conduct prejudicial to good order and discipline or of a service
discrediting nature. In this case, the Government alleged this element and presented

6
    This issue is raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).


                                                           11                                 ACM 38597
testimony and evidence that Appellant’s fleeing apprehension by civilian law
enforcement officers was service discrediting. The Government presented the testimony
of multiple witnesses involved in the hunt for Appellant throughout the greater Wichita
area, including the officer who witnessed the robbery and first engaged Appellant in the
store and then had to chase him with several other law enforcement officers. The
Government also provided testimony of the disturbance Appellant’s fleeing created in the
local community. The military judge found Appellant guilty based on the elements of the
Article 134 offense, and there is nothing in the record that indicates this finding is
improper or in error.

       Accordingly, we find the military judge did not err in finding Appellant guilty of
an Article 134 offense for fleeing apprehension of civilian law enforcement officers on or
about 3 March 2013.

                                         Pretrial Confinement Credit

       Appellant argues that the military judge erred in not granting sufficient pretrial
confinement credit in light of the conditions of his confinement.7 Appellant was granted
291 days of Allen credit8 for the time he spent in pre-trial confinement. The military
judge also granted him 177 additional days of credit toward his sentence for the time he
spent in maximum security based on conditions that the military judge believed exceeded
the minimum conditions necessary to protect society and ensure Appellant’s presence at
trial. We have reviewed Appellant’s submissions and arguments at trial as well as on
appeal. There is nothing in the record that indicates the judge’s ruling granting 177 days
of additional confinement credit was insufficient to address the conditions of pretrial
confinement that the military judge believed warranted additional credit.

       Consequently, we find no error in the military judge awarding 177 additional days
of confinement credit based on the facts and circumstances of this case.

                                          Sentence Appropriateness

       Appellant next argues that his sentence was inappropriately severe. 9 This court
“may affirm only such findings of guilty and the sentence or such part or amount of the
sentence, as [we find] correct in law and fact and determine[], on the basis of the entire
record, should be approved.” Article 66(c), UCMJ, 10 U.S.C. § 866(c). We review
sentence appropriateness de novo, employing “a sweeping Congressional mandate to
ensure a fair and just punishment for every accused.” United States v. Baier, 60 M.J.
382, 384 (C.A.A.F. 2005) (quoting United States v. Bauerbach, 55 M.J. 501, 504 (Army

7
  This issue is raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
8
  This term refers to day-for-day credit for lawful pretrial confinement, pursuant to United States v. Allen, 17 M.J.
126 (C.M.A. 1984).
9
  This issue is raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).


                                                          12                                              ACM 38597
Ct. Crim. App. 2001)) (internal quotation marks omitted). “We assess sentence
appropriateness by considering the particular appellant, the nature and seriousness of the
offense[s], the appellant’s record of service, and all matters contained in the record of
trial.” United States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009) (citing
United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982)). Although we are accorded
great discretion in determining whether a particular sentence is appropriate, we are not
authorized to engage in exercises of clemency. United States v. Nerad, 69 M.J. 138, 146
(C.A.A.F. 2010).

        Appellant was convicted of multiple specifications of robbery and unlawful entry,
as well as specifications of aggravated assault, assault, and fleeing apprehension. After
consolidating certain specifications for sentencing, Appellant faced a maximum sentence
of reduction to E-1, total forfeiture of pay and allowances, 50 years and 6 months of
confinement, and a dishonorable discharge. The military judge sentenced Appellant to
reduction to the grade of E-1, total forfeiture of pay and allowances, 20 years of
confinement, and a dishonorable discharge. In terms of the period of confinement,
Appellant was sentenced to less than half of the authorized sentence. We have
considered all of the evidence in the record including all information submitted by
Appellant. We have also considered the very serious nature of the offenses of which
Appellant has been convicted, the victims of his crimes, and the dangerous nature of the
events and circumstances of this case. Considering all of these factors, we do not find the
sentence to be inappropriately severe, especially given the maximum sentence authorized
in this case.

                                       Cumulative Errors and Fair Trial

        Appellant finally argues that the cumulative effect of errors in his case deprives us
of the ability to be confident he received a fair trial.10 We have reviewed all of the
assignments of error raised by Appellant both individually as well as for any cumulative
effect. We find merit only in Appellant’s assignment of error as to the conviction for an
LIO of robbery, for which appropriate relief is available. We find no merit to Appellant’s
other assignments of error either individually or collectively warranting any relief beyond
that already discussed.

                                              Sentence Reassessment

       Having disapproved the conviction for the offense of aggravated assault by bodily
harm, we must determine whether we can reassess the sentence. This court has “broad
discretion” when reassessing sentences. United States v. Winckelmann, 73 M.J. 11, 12
(C.A.A.F. 2013). Our superior court has repeatedly held that if we “can determine to
[our] satisfaction that, absent any error, the sentence adjudged would have been of at least

10
     This issue is raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).


                                                           13                                  ACM 38597
a certain severity, then a sentence of that severity or less will be free of the prejudicial
effects of error.” United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986). This analysis
is based on a totality of the circumstances with the following as illustrative factors:
dramatic changes in the penalty landscape and exposure, the forum, whether the
remaining offenses capture the gravamen of the criminal conduct, whether significant or
aggravating circumstances remain admissible and relevant, and whether the remaining
offenses are the type that we as appellate judges have experience and familiarity with to
reliably determine what sentence would have been imposed at trial. Winckelmann, 73
M.J. at 15–16.

        Here, there is no change in the penalty landscape from our action affirming only
the LIO of aggravated assault by offer. The maximum punishment would remain the
same. The LIO captures the gravamen of the misconduct and retains the admissibility
and relevance of the surrounding circumstances. We also find that the remaining
offenses are of the type with which we have experience and familiarity as appellate
judges to determine the sentence that would have been imposed. We have considered the
totality of the circumstances and reassess the sentence to the same sentence approved by
the convening authority.

                             Unreasonable Post-Trial Delay

       Though not raised as an issue on appeal, we note the overall delay of more than 18
months between the time of docketing and review by this court is facially unreasonable.
See United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). Article 66(c), UCMJ,
empowers the service courts to grant sentence relief for excessive post-trial delay without
the showing of actual prejudice required by Article 59(a), UCMJ, 10 U.S.C. § 859(a).
United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002). Utilizing the four-factor test
adopted in Moreno, we find the delay did not violate Appellant’s due process rights. See
Moreno, 63 M.J. at 135. The delay, while presumptively unreasonable, did not exceed
the Moreno standard by more than 30 days. Appellant has not asserted he was
prejudiced.

        We have also considered whether, even in the absence of prejudice, sentence relief
is justified based upon the delay. United States v. Harvey, 64 M.J. 13, 24 (C.A.A.F.
2006); Tardif, 57 M.J. at 224. In United States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim.
App. 2015), we identified a list of factors to consider in evaluating whether Article 66(c),
UCMJ, relief should be granted for post-trial delay. Those factors include how long the
delay exceeded appellate review standards, the reasons for the delay, whether the
government acted with bad faith or gross indifference, evidence of institutional neglect,
harm to the appellant or to the institution, whether relief is consistent with the goals of
both justice and good order and discipline, and whether this court can provide any
meaningful relief. Id. No single factor is dispositive and we may consider other factors
as appropriate. Id.


                                             14                                  ACM 38597
       After considering the relevant factors in this case, we determine that no relief is
warranted. We find there was no bad faith or gross negligence in the post-trial
processing. The record of trial in this case comprised ten volumes, and Appellant raised
numerous assignments of error. We find no evidence of harm to the integrity of the
military justice system. We have the authority to tailor an appropriate remedy without
giving Appellant a windfall. See Tardif, 57 M.J. at 225. We have expressly considered
whether we should reduce some or all of Appellant’s sentence. Based on our review of
the entire record, we conclude that sentence relief under Article 66, UCMJ, is not
warranted.

                                                  Conclusion

       The finding of guilty of Specification 1 of the Second Additional Charge, is set
aside, but we affirm Appellant’s conviction to the lesser included offense comprised by
the following specification: In that AIRMAN FIRST CLASS JEFFERSON R.
MCFADDEN, United States Air Force, 22d Aircraft Maintenance Squadron, McConnell
Air Force Base, Kansas, did, at or near Wichita, Kansas, on or about 15 January 2013,
commit an assault upon CR by placing her in reasonable apprehension of being struck
with objects likely to produce death or grievous bodily harm to wit: a firearm and a
knife. All other findings are affirmed. The findings, as modified, and the sentence, as
reassessed, are correct in law and fact and no error materially prejudicial to the
substantial rights of Appellant occurred.11 Articles 59(a) and 66(c), UCMJ. They are
accordingly,
                                    AFFIRMED.



                 FOR THE COURT



                 LEAH M. CALAHAN
                 Clerk of the Court




11
  The Court-Martial Order (CMO) contains errors. Charge II is incorrectly numbered and the forfeiture of all pay
and allowances is missing from the sentence. We have considered this clerical error and determined it is not
prejudicial; however, we order a corrected CMO. Air Force Instruction 51-201, Administration of Military Justice, ¶
10.10 (6 June 2013).


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