UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                        MULLIGAN, FEBBO, and SCHASBERGER
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                     Staff Sergeant SEAN W. CORNELISON
                          United States Army, Appellant

                                   ARMY 20160733

                     Headquarters, United States Army Alaska
                        Kenneth W. Shahan, Military Judge
                 Colonel Erik L. Christiansen, Staff Judge Advocate


For Appellant: Lieutenant Colonel Tiffany D. Pond, JA; Major Julie L. Borchers,
JA; Captain Oluwaseye Awoniyi, JA (on brief and reply brief).

For Appellee: Colonel Steven P. Haight, JA; Captain Natanyah Ganz, JA (on brief) .


                                   22 February 2019

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

FEBBO, Judge:

       Appellant challenges the form and substance of a crime victim ’s unsworn
statement during the presentencing phase of appellant ’s court-martial. We agree that
some of appellant’s arguments identify legal error. Ultimately, however, as
appellant did not preserve these issues at trial , we conclude appellant is entitled to
no relief under the plain error standard of review. 1

       A panel with enlisted representation sitting as a general court -martial
convicted appellant, contrary to his pleas, of one specification each of drunken
operation of a vehicle, wrongful use of marijuan a, rape, assault consummated by a
battery, and possession of a firearm in a vehicle while impaired, in violation of


1
 We have considered the matters personally asserted by appellant pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find they merit no relief.
CORNELISON—ARMY 20160733

Articles 111, 112a, 120, 128, and 134 of the Uniform Code of Military Justice, 10
U.S.C. §§ 911, 912a, 920, 928, and 934 [UCMJ] . The panel sentenced appellant to a
dishonorable discharge, eighteen months of confinement, and reduction to the grade
of E-1. The convening authority approved the findings and sentence as adjudged and
credited appellant with 315 days toward his sentence to confinement. Appellant’s
case is now before us for review pursuant to Article 66, UCMJ.

                                  BACKGROUND

       Appellant married SC in the summer of 2015. Their marriage was nasty,
brutish, and short. They moved to Fairbanks, Alaska, in September 2015. In
November 2015, appellant raped his wife. On New Year’s Eve, appellant and his
wife were drinking alcohol and got into an argument. Appellant repeatedly struck
SC in the face with his hand and fist. SC suffered serious injuries to her head and
face. Afterward, appellant drove away from their home. Based on his driving,
appellant was stopped by local police for suspicion of driving under the influence of
alcohol. The police searched his vehicle and found a loaded pistol.

       After appellant was convicted of the offenses listed above, the government
called SC as a witness during presentencing proceedings. The government did not
call any other sentencing witnesses. The trial counsel explaine d to the military
judge that SC would give an unsworn statement in question-and-answer format. The
military judge instructed the panel that , as a victim of appellant’s offenses, SC was
allowed to give an unsworn statement and would not be subject to cross-
examination. Without any objection from appellant ’s counsel, the military judge
allowed SC to give an unsworn statement in a question-and-answer format, wherein
the trial counsel asked SC questions and SC answered them .

       SC’s unsworn statement spanned eleven pages of transcript and included
approximately fourteen questions by the t rial counsel, some of them prefatory, and
several long narrative answers by SC. Among other things, SC explained that her
career was devastated by her relationship with appellant, her move to Alaska, and
the injuries appellant inflicted on her. SC stated she had a stable job before moving
to Alaska, but was unable to seek employment after returning to Georgia due to the
injuries on her face, stress, and the short duration of her employment in Alaska. SC
said she received no support from appellant after she left Alaska, suffered financial
hardship, and had her vehicle repossessed. According to SC, this caused a decline in
her credit score, made her unable to buy another car, and rendered her homeless. As
a result, SC had to live in her daughter’s small apartment, where she slept on a cot in
the sunroom. According to SC, her family worried that she m ight hurt herself. She
stated she was terrified that appellant would get released from confinement , show up
at her daughter’s house with a weapon, and hurt her and her family.




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CORNELISON—ARMY 20160733

       During appellant’s presentencing case, he also gave an unsworn statement,
which spanned twenty-two pages of transcript. Appellant’s statement was also in a
question-and-answer format wherein his defense counsel asked questions and
appellant answered. The military judge instructed the panel that appellant was
authorized to make an unsworn statement. Among other instructions, the military
judge instructed the panel they could not draw an y adverse inference from the fact
that appellant elected to make a statement not under oath; each panel member could
weigh appellant’s unsworn statement based on their own discretion; the panel could
consider that the statement was not under oath ; and the panel could consider whether
the unsworn statement was supported or contradicted by the evidence in the case.
The military judge did not explicitly give a similar instruction concerning the weight
and credibility for SC’s unsworn statement.

                             LAW AND DISCUSSION

       Under the umbrella of a single assignment of error, appellant asserts multiple
failings regarding SC’s unsworn statement. 2 We will address appellant’s assertions
in the following order: First, appellant argues neither the parties nor the court were
provided a copy of SC’s unsworn statement prior to her delivering it. Even if this
was true, we find it did not materially prejudice appellant. Second, appellant objects
to the inclusion of the statement in the government’s sentencing case. We agree the
sequencing of the statement was technically wr ong, but find appellant suffered no
practical harm. Third, appellant argues it was error for the military judge to allow
the statement in question-and-answer format led by the trial counsel. Appellant is
correct, but we find the forfeited error did not m aterially prejudice him. Fourth,
appellant contends the content of the statement addressed general financial and
emotional effects of marrying appellant in addition to the impact of appellant’s
discrete offenses. We find no obvious error. Fifth and finally, appellant alleges the
military judge prejudicially erred by not giving a complete instruction to the panel
on the weight and credibility of SC’s unsworn statement. We disagree for multiple
reasons.




2
  The government argues appellant waived this issue because his defense counsel
asked the military judge if SC would be making her unsworn statement from the
witness stand and appellant did not object to SC’s statement. Under the facts of this
case, where appellant only asked where SC would be physically located as she gave
her statement and he did not discuss the format of the statement before she gave it,
we conclude appellant’s failure to object to SC’s unsworn statement was not waiver.
Instead, it was forfeiture, and therefore only subject to review for plain error. See
United States v. Brooks, 64 M.J. 325, 328 (C.A.A.F. 2007).




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CORNELISON—ARMY 20160733

              A. Failure to Provide the Unsworn Statement in Adv ance

       Appellant notes that a copy of SC’s unsworn statement was not attached as an
appellate exhibit, and nothing in the record shows it was provided in advance to the
parties or the military judge as required under Rule for Courts -Martial (R.C.M.)
1001A(e)(1). Because provision of the unsworn statement to the parties was never
discussed on the record, either appellant was provided a copy of the statement or he
forfeited any claim of error by failing to object. See Brooks, 64 M.J. at 328. 3

       Forfeited error is subject to review under the plain error standard. In order to
warrant relief for plain error, appellant “has the burden of demonstrating that: (1)
there was error; (2) the error was plain or obvious; and (3) the error materially
prejudiced a substantial right of the [appellant].” United States v. Girouard, 70 M.J.
5, 11 (C.A.A.F. 2011). “[F]ailure to establish any one of the prongs is fatal to a
plain error claim.” United States v. Bungert, 62 M.J. 346, 348 (C.A.A.F. 2006).

       Even assuming appellant was never provided a copy of SC’s unsworn
statement, he has failed to establish the third prong of plain error—he has not shown
any material prejudice to his substantial rights. Appellant requested no additional
time to marshal facts to rebut any of SC’s unsworn statement, there is no indication
appellant was surprised by the content of SC ’s unsworn statement, and appellant’s
defense counsel adeptly addressed the content of SC ’s statement during appellant’s
sentencing argument. Even assuming appellant was not given an advance copy of
SC’s unsworn statement, appellant has not shown the omission prejudiced him.

                      B. Sequencing of the Unsworn Statement

       Appellant argues SC’s R.C.M. 1001A unsworn statement was improperly
included as part of the government’s R.C.M. 1001 presentencing case. Appellant
also argues the court-martial itself—rather than the trial counsel—should have
called SC to make her unsworn statement. As a formal matter, appellant is correct
as to who “calls” a victim under R.C.M. 1001A. As a practical matter, appellant is
incorrect as to whether the timing of SC’s testimony in any way prejudiced him.

       The ability of a crime victim to give an unsworn statement under R.C.M.
1001A is independent of the ability of the government and the defense t o call that
same victim to testify under R.C.M. 1001. See R.C.M. 1001A(a). Our superior
court has explained, “R.C.M. 1001A is itself part of the presentencing procedure,
and is temporally located between the trial and defense counsel ’s respective


3
  This underscores the need for timely objections. In the absence of an objection, it
is appellant’s burden to establish plain error.




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CORNELISON—ARMY 20160733

presentencing cases. It belongs to the victim, and is separate and distinct from the
government’s right to offer victim impact statements in aggravation, under R.C.M.
1001(b)(4).” United States v. Barker, 77 M.J. 377, 378 (C.A.A.F. 2018) (emphasis
original).

       While the trial counsel has the obligation to ensure a crime victim is aware of
his or her right to be heard, a victim who chooses to be so heard “shall be called by
the court-martial.” R.C.M. 1001A(a). Thus, appellant is correct that the court-
martial—not the government or the defense—calls a crime victim who chooses to
give a statement under R.C.M. 1001A. As explained in subsection “C,” below, a
victim’s statement may only be given by the victim, a victim’s designee under
R.C.M. 801(a)(6), or the victim’s own counsel.

       We find it hard, however, to fault the military judge for allowing SC to give
her unsworn statement when he did. Appellant’s case was tried before our superior
court issued its guidance in Barker. In light of Barker, it is clear any R.C.M. 1001A
statement should be offered between the close of the government ’s presentencing
case and the beginning of the defense’s presentencing case. This conclusion is both
fair and practical, but it was not clear from the text of R.C.M. 1001A alone. Onl y
with the benefit of our superior court ’s guidance is this rule clear.

       The Manual for Courts-Martial gives the military judge the responsibility
and deference to ensure court-martial procedures are conducted in a fair and orderly
manner. See R.C.M. 102; R.C.M. 801(a)(3) discussion (the military judge is
empowered to “prescribe the manner and the order in which proceedings may take
place”). The military judge “may exercise reasonable control over the proceedings
to promote the purposes of these rules and this manual.” R.C.M. 801(a)(3). The
military judge also decides the order in which witnesses may testify. R.C.M.
801(a)(3). 4 In this case, without the benefit of our superior court ’s guidance in
Barker, the military judge exercised his discretion to allow a fair and orderly
presentation of presentencing matters and appellant had a full opportunity to present
his own presentencing case. As it happened, the only difference between the order
of presentation directed by Barker and the order allowed by the military judge was
the timing of when the government announced conclusion of its presentencing case.

       While it was a technical error to allow the government to call SC and for her
to give her unsworn statement during the government ’s presentencing case, we
conclude the timing did not prejudice appellant. While our superior court has


4
  Indeed, we believe a military judge would be within his or her discretion to allow a
crime victim to be heard out of order upon a showing of good cause—such as
logistical considerations or witness availability.




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CORNELISON—ARMY 20160733

decided a crime victim’s statement under R.C.M. 1001A, “is temporally located
between the trial and defense counsel ’s respective presentencing cases,” Barker, 77
M.J. at 378, the government did not offer any evidence after SC gave her unsworn
statement. The practical difference between the government resting immediately
before or immediately after SC’s unsworn statement was negligible. Thus, appellant
has failed to demonstrate any material prejudice to his substantial rights.

              C. Who May Participate in a Victim’s Unsworn Statement

       We conclude the military judge erred by allowing the trial counsel to
participate in the victim’s unsworn statement. R.C.M. 1001A does not contemplate
either a trial counsel or defense counsel participating in a victim’s unsworn
statement through a question-and-answer exchange. Instead, R.C.M. 1001A plainly
states that a victim, “may not be cross-examined by the trial or defense counsel ” on
his or her unsworn statement, nor may a victim be “examined upon it by the court-
martial.” R.C.M. 1001A(e). 5 As our superior court has explained, a crime victim ’s
right to be heard under 1001A, “belongs to the victim, and is separate and distinct
from the government’s right to offer victim impact statements in aggravation .”
Barker, 77 M.J. at 378.

       Under R.C.M. 1001A, only two persons other than a crime victim are allowed
to give a victim’s unsworn statement. A victim’s designee under R.C.M. 801(a)(6)
may give a victim’s unsworn statement. R.C.M. 1001A(e). Similarly, a victim’s
counsel may give a victim’s unsworn statement, but only upon “good cause shown.”
R.C.M. 1001A(e)(2). Thus, while we assess a military judge may allow a victim to
give an unsworn statement in a question-and-answer format, we conclude R.C.M.
1001A(e)(2) requires the victim’s own counsel—not the trial counsel, defense
counsel, or the court-martial—be the individual who asks the victim such questions. 6

       We find the military judge erred by failing to enforce R.C.M. 1001A as it is
written when he allowed the trial counsel to participate in SC ’s unsworn statement.


5
  What the government did in this case was more akin to a direct -examination than a
cross-examination, but that would suggest SC was called as the government ’s
witness. To be clear, during a victim ’s statement under R.C.M. 1001A, the vi ctim is
not a witness for either the government or the defense. If the government or defense
want to call a victim as a sentencing witness, they must do so under R.C.M. 1001, as
they would for any other witness.
6
 We leave for another case the question of whether a victim’s designee under
R.C.M. 801(a)(6) could lead a victim under eighteen years of age through a
question-and-answer unsworn statement. See R.C.M. 1001A(e).




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CORNELISON—ARMY 20160733

Appellant, however, has not demonstrated any material prejudice to his substantial
rights as a result. The trial counsel only ask ed SC approximately fourteen questions,
several of which were prefatory. SC ’s answers to the trial counsel’s questions were
lengthy and consistent with a narrative-form unsworn statement rather than a
carefully-directed presentation by the trial counsel. There is no reason to believe SC
would have given either a less compelling or more compelling unsworn statement
had she read a previously-prepared statement, been asked questions by a special
victim’s counsel, or narrated her unsworn statement on her own. During his
sentencing argument, appellant’s counsel made effective points rebutting portions of
SC’s unsworn statement and, as discussed in the conclusion of this opinion, the
overall sentence appellant received was lenient.

                      D. The Content of the Unsworn Statement

       Appellant contends that portions of SC’s unsworn statement exceeded the
permissible scope of “victim impact” to such an extent it was plain and obvious
error for the military judge to allow them. We disagree. A victim’s unsworn
statement may include statements of victim impact, or matters in mitigation, or both.
R.C.M. 1001A(c). SC’s unsworn statement was clearly intended to convey
statements of victim impact. Victim impact is defined to include, “financial, social,
psychological, or medical impact on the victim directly relating to or arising from
the offense[s] of which the accused has been found guilty. ” R.C.M. 1001A(b)(2). In
her unsworn statement, SC attributed a litany of negative consequences to
appellant’s crimes, and expressed fear that he would one day harm her again. As
appellant did not object, we find no obvious error in the content of SC’s unsworn
statement. We are mindful that, because appellant never objected, SC was never
afforded the opportunity to explain why she attri buted some hardships to appellant’s
crimes against her. As such, we simply do not find any of SC’s statements were so
plainly unrelated to appellant’s conduct as to constitute obvious error.

       While we find no obvious error, we also find that even if some of SC’s
statements had constituted error, no such error materially prejudiced appellant’s
substantial rights. In appellant’s sentencing argument, his defense counsel
effectively argued that SC’s unsworn statement demonstrated that she was articulate,
capable, and fully able to lead a happy and productive life in the future. Defense
counsel also observed SC would, thankfully, receive transitional compensation from
the Army for three years. Taken as a whole, appellant suffered no material prejudice
from any alleged overreach in SC’s unsworn statement.

             E. Instructing the Panel on a Victim’s Unsworn Statement

      The military judge did not give the panel the now-standard instruction on a
victim’s unsworn statement found in the latest update to the Military Judge’s
Benchbook. Appellant neither objected to this omission, nor did he otherwise



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CORNELISON—ARMY 20160733

request such an instruction. We therefore review the military judge ’s instructions
for plain error. We find none.

       We find no plain error in the military judge’s instructio ns regarding SC’s
unsworn statement for five related reasons. First, the Military Judge’s Benchbook is
not a source of law. Second, even if it were a source of law, the instruction
appellant invokes on appeal was not approved until after appellant’s cour t-martial.
Third, the instruction is not mandatory. Fourth, the military judge gave no incorrect
instructions. Fifth, and finally, appellant was not materially prejudiced by the
omission of the instruction.

      The Benchbook is not a source of law, but represents a snapshot of the
prevailing understanding of the law, among the trial judiciary, as it relates to trial
procedure. See United States v. Riley, 72 M.J. 115, 122 (C.A.A.F. 2013) (“the
Benchbook is not binding as it is not a primary source of law, t he Benchbook is
intended to ensure compliance with existing law ”). See generally, Dep’t of Army
Pam. 27-9, Legal Services: Military Judges’ Benchbook (10 Sep. 2014) , Foreword.

       The current version of the Benchbook was officially p ublished on 10
September 2014. Due to the dynamic nature of the law, the Benchbook undergoes
periodic changes by the U.S. Army Trial Judiciary. See U.S. Army Trial Judiciary,
DA Pam 27-9 and Approved Interim Updates (9 Apr. 2013). 7 Approved Change 16-
06 modified the standard instructions on unsworn statements to account for the
ability of a crime victim to make an unsworn statement under R.C.M. 1001A(e).
U.S. Army Trial Judiciary, Instruction on Victim’s Unsworn Statement (14 Nov.
2017). 8 The effective date of Approved Change 16-06 was 14 November 2017. U.S.
Army Trial Judiciary, Approved Interim Change List with Effective Dates (1 Feb.
2019). 9 As such, the current instruction on a crime victim’s unsworn statement was
approved four days after appellant’s court-martial adjourned on 10 November 2017.


7
https://www.jagcnet.army.mil/sites/trialjudiciary.nsf/ homeContent.xsp?open&docu
mentId=DE67163596F12C3F85257B48006915EA.
8
 https://www.jagcnet.army.mil/sites/trialjudiciary.nsf/xsp/.ibmmodres/do mino/Open
Attachment/Sites/trialjudiciary.nsf/DE67163596F12C3F85257B48006915EA/Attach
ments/Approved%20Change%2016-
06%20(Instruction%20on%20Victim’s%20Unsworn%20Statement).docx .
9
https://www.jagcnet.army.mil/sites/trialjudiciary.nsf/xs p/.ibmmodres/domino/Open
Attachment/Sites/trialjudiciary.nsf/DE67163596F12C3F85257B48006915EA/ Attach
ments/Approved%20Interim%20Change%20List%20with%20%20Effective%20Dates
%20(as%20of%201%20Feb%2019).docx .




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CORNELISON—ARMY 20160733

       Even if the current instruction on a victim’s unsworn statement were approved
prior to appellant’s court-martial, its omission would not necessarily constitute legal
error. The instruction on a victim’s unsworn statement is not o ne of the mandatory
presentencing instructions under R.C.M. 1005(e). See also United States v. Miller,
58 M.J. 266 (C.A.A.F. 2003). Although military judges are usually well -advised to
follow the standard instructions in the Benchbook, the Benchbook is n ot a source of
law and mere deviation from the Benchbook does not necessarily constitute legal
error. We find no error in the military judge’s instructions in appellant’s case.

       Nothing in the military judge’s instructions to the panel was inaccurate or a
misstatement of the law. When the military judge instructed the panel immediately
before SC’s statement, he did not elaborate on how the panel could weigh the
matters presented in an unsworn statement. During presentencing instructions,
however, the military judge instructed the panel, “[t]he weight and significance to be
attached to an unsworn statement rests within the sound discretion of each court
member.” (emphasis added). While the military judge did not remind the panel
during presentencing instructions that SC made an unsworn statement, we have no
reason to believe the panel was incapable of applying the military judge ’s
instruction on consideration of “an unsworn statement” to SC’s unsworn statement
as well as appellant’s.

      We find no error in the instructions as given. Even if the instructions had
been in error, however, we would again find no material prejudice to appellant. As
discussed in our conclusion below, appellant’s defense counsel effectively countered
SC’s unsworn statement through astute argument and appellant received a lenient
sentence considering the nature of his crimes.

                                    CONCLUSION

       We have considered whether the aggregate effect of the five alleged errors
prejudiced appellant. It did not. Appellant’s defense counsel did not indicate any
surprise or disadvantage based on the form or substance of SC ’s unsworn statement.
Rather, appellant’s defense counsel adeptly addressed SC ’s unsworn statement
during closing argument. Appellant was convicted of several serious crimes ,
including beating and raping his wife. Appellant faced a potential sentence
including confinement for life without the possibility of parole. The government
argued for a sentence including thirty years of confinement. Instead, the panel
limited appellant’s sentence to confinement to only eighteen months. No error of
the military judge with respect to SC ’s unsworn statement, whether considered
individually or in the aggregate, materially prejudiced appellant ’s substantial rights.

      The findings of guilty and sentence are AFFIRMED.




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CORNELISON—ARMY 20160733

    Senior Judge MULLIGAN and Judge SCHASBERGER concur.

                              FOR THE COURT:




                              MALCOLM H. SQUIRES, JR.
                              MALCOLM H. SQUIRES, JR.
                              Clerk of Court
                              Clerk of Court




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