         UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                         UNITED STATES

                                                      v.

                          Airman Basic FRANKLIN G.U. CRUZ
                                United States Air Force

                                              ACM 38296

                                              24 July 2014

         Sentence adjudged 20 December 2012 by GCM convened at Andersen
         Air Force Base, Guam. Military Judge: Gregory O. Friedland.

         Approved Sentence: Bad-conduct discharge and confinement for
         18 months.

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

         Appellate Counsel for the United States: Colonel Don M. Christensen;
         Major Daniel J. Breen; Major Roberto Ramírez; and Gerald R. Bruce,
         Esquire.

                                                  Before

                               ALLRED, HECKER and WEBER
                                  Appellate Military Judges

                                   OPINION OF THE COURT

                     This opinion is subject to editorial correction before final release.



HECKER, Senior Judge:

       A military judge sitting at a general court-martial convicted the appellant, pursuant to
his pleas, of desertion, fleeing apprehension, resisting apprehension, use of
methamphetamine, assault, child endangerment, and reckless endangerment, in violation of
Articles 85, 95, 112a, 128, and 134, UCMJ, 10 U.S.C. §§ 885, 895, 912a, 928, 934. A
panel of officer and enlisted members sentenced him to confinement for 3 years and a
bad-conduct discharge. Pursuant to a pretrial agreement, the convening authority lowered
the confinement to 18 months and approved the remainder of the sentence as adjudged.

        On appeal, the appellant argues his record of trial is not substantially verbatim and
therefore not reviewable due to its limited discussion of an out-of-court interaction between
trial defense counsel and a panel member. Finding no error that materially prejudices a
substantial right of the appellant, we affirm the approved findings and sentence.

                       Rule for Courts-Martial (R.C.M.) 802 Session

      After the sentencing evidence was presented to the panel but prior to sentencing
argument, the military judge stated the following at the beginning of an Article 39(a),
UCMJ, 10 U.S.C. § 839(a), session:

       Before we got on the record we had a brief [R.C.M.] 802 [session] with
       counsel. There was probably characterized as [sic] a minor interaction
       between one of the members, defense counsel, here in the courtroom. The
       bailiff was present as well. Does either side—we discussed that issue; there
       doesn’t seem that there’s any harm, any foul.

       The parties both declined the military judge’s invitation to “voir dire the witness,”
possibly referring to the bailiff. They also responded “no” when asked if there were “[a]ny
issues from either side on that interaction as explained in during [sic] the [R.C.M.] 802”
session.

       The appellant now argues the lack of details about trial defense counsel’s interaction
with the panel member constitutes a “substantial omission” that renders his record of trial
incomplete such that his bad-conduct discharge cannot be approved, citing Article 54(a),
UCMJ, 10 U.S.C. § 854(a), and R.C.M. 1103(b). He also contends it is impossible for this
Court to evaluate whether he was sentenced by an impartial panel. Citing R.C.M. 804(a), he
further argues his right to be present at all trial proceedings has been violated since he was
excluded from this R.C.M. 802 conference and there is no evidence he understood the
interaction his defense counsel had with the panel member.

        A military judge may order conferences with the parties “to consider such matters as
will promote a fair and expeditious trial.” R.C.M. 802(a). The Discussion section clarifies
this rule by stating that “[t]he purpose of such conference is to inform the military judge of
anticipated issues and to expeditiously resolve matters on which the parties can agree, not to
litigate or decide contested issues.” R.C.M. 802(a), Discussion. Accordingly, R.C.M. 802
conferences need not be recorded and are not part of the record of trial under Article 54,
UCMJ. R.C.M. 802(b). However, matters agreed upon at such conferences must be
included in the record orally or in writing. Id.; R.C.M. 1103(b)(2), Discussion.



                                              2                                     ACM 38296
       Here, during an R.C.M. 802 conference during the sentencing phase of the trial, the
parties discussed a “minor interaction” trial defense counsel had just had with a panel
member and agreed it had caused “no harm, no foul.” Given the parties’ agreement with
that conclusion, it was not inappropriate for the military judge to resolve this matter during
an R.C.M. 802 conference. There is also no requirement for an accused to be present at
such a session. See R.C.M. 802(d).

       The appellant now complains that more details about the “minor interaction” should
have been put on the record. At trial, defense counsel declined to object to the adequacy of
the description of the R.C.M. 802 session, which indicates counsel was in agreement with
how the panel member matter was resolved at the R.C.M. 802 conference and the military
judge’s summary of that conference. Given the lack of objection at trial, the appellant
waived any complaints about the sufficiency of the summary. See R.C.M. 802(b). He also
waived any challenge to the panel member by failing to raise it in a timely manner.
R.C.M. 912(f)(2)(B) and (f)(4). See also United States v. Stone, 26 M.J. 401, 403 (C.M.A.
1988).

        Furthermore, this discussion at the R.C.M. 802 conference need not be transcribed in
a verbatim manner. See R.C.M. 802(a), Discussion; R.C.M. 1103(b)(2), Discussion;
cf. United States v. Abrams, 50 M.J. 361, 363 (C.A.A.F. 1999) (a verbatim transcript must
include “sidebar conferences” when they involve a ruling by a military judge on a matter
affecting the rights of an accused). The lack of a verbatim transcript or more details about
the panel member issue does not constitute a “substantial omission” nor render the record of
trial incomplete. See United States v. Gaskins, 72 M.J. 225, 230-31 (C.A.A.F. 2013).

                                                     Conclusion

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

                                                    AFFIRMED.


                  FOR THE COURT


                   STEVEN LUCAS
                   Clerk of the Court

*
  We note the court-martial order (CMO), dated 5 March 2013, contains a minor typographical omission of the word
“or,” from the phrase “on or about,” in five specifications: Specifications 1, 2, and 3 of Charge IV, and Specifications 1
and 2 of Charge V. The CMO also omits the initials of the child identified in Specification 1 of Charge V, whose name
was inserted prior to arraignment. See Air Force Instruction 51-201, Administration of Military Justice, ¶¶ 10.7, 10.8.
(21 December 2007, through Interim Change 1, dated 3 February 2010). We order promulgation of a corrected CMO.

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