United States v. Green

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Staff Sergeant TAVARSE A. GREEN
United States Air Force

ACM 38586

20 October 2015

Sentence adjudged 24 November 2013 by GCM convened at Malmstrom
Air Force Base, Montana. Military Judge: Todd E. McDowell.

Approved Sentence: Dishonorable discharge, confinement for 1 year, and
reduction to E-1.

Appellate Counsel for the Appellant: Captain Lauren A. Shure.

Appellate Counsel for the United States: Major Mary Ellen Payne; Captain
Richard J. Schrider; and Gerald R. Bruce, Esquire.

Before

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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

TELLER, Senior Judge:

Appellant was convicted, contrary to his pleas, by a panel of officer and enlisted
members of making a false official statement, simple assault, assault consummated by a
battery, and assault on a child, in violation of Articles 107 and 128, UCMJ, 10 U.S.C. §§
907, 928.1 The court sentenced him to reduction to E-1, confinement for one year, and a
dishonorable discharge. The sentence was approved, as adjudged, on 15 April 2014.

1
Appellant was acquitted of several more serious offenses including rape, forcible sodomy, and aggravated assault.
 Appellant argues that the evidence was legally and factually insufficient with
regard to four of the specifications, the military judge erred in admitting the testimony of
Appellant’s neighbor, and sentence relief is warranted due to unreasonable post-trial
delay. The court also specified an issue concerning whether the presence of material
excluded by the military judge on the copy of Prosecution Exhibit 3 in the record of trial
affected our Article 66, UCMJ, 10 U.S.C. § 866, review of the findings and sentence.
We find that the evidence was legally insufficient with regard to the word “slap” in
Charge I, Specification 8. Finding no other error that materially prejudices a substantial
right of Appellant, we affirm the remainder of the findings and the sentence.

Background

When stripped of all the offenses of which Appellant was acquitted, this case
paints an all too familiar picture of domestic violence involving both intimate partner
abuse and child abuse. From an evidentiary standpoint, these cases often present
significant challenges brought about by intense feelings of loyalty, guilt, and betrayal, as
well as conflicting personal interests. When, as in this case, the allegations span
recurring cycles of multiple abusive relationships, the biases of the individuals shift over
time, leading to conflicting testimony not only between individuals, but often between
statements provided by a single individual depending upon the circumstances. Such
cases defy any attempt to draw conclusions about whether any witness is universally
credible or not credible, trustworthy or not trustworthy, because most will have been
honest at times and less honest at others. Appellant’s assault convictions, however, relate
to episodes where there is some independent evidence against which the conflicting
testimony can be weighed.

Appellant was alleged to have assaulted his then-girlfriend, ADS, by strangling
her. Appellant and ADS were engaged in an on-again, off-again relationship from early
2007 until February 2013 and shared custody of their two young daughters. ADS
testified that in the winter of 2008–2009, after a disagreement about parenting their oldest
daughter, Appellant cornered her in the kitchen of his apartment and choked her. She
testified that Appellant backed her up against the kitchen sink, that she initially screamed,
and that the assault ended only after Appellant’s roommate, KB, came in to “[get] him
away from [her]” and “make him stay back.” This allegation formed the basis of
Specification 2 of Charge I. One of the other victims in the case, ANS (discussed below),
later testified that Appellant admitted choking ADS during this timeframe.

During cross-examination, trial defense counsel elicited testimony that
substantially undermined ADS’s testimony generally and about that incident in particular.
ADS conceded she was engaged in a custody dispute with Appellant at the time of her
testimony. She also admitted that she resented Appellant for “using her” for sex while
planning to become engaged with a new girlfriend. She agreed that she did not report the
assault at the time, and in fact, moved in with Appellant relatively soon after the incident.

2 ACM 38586
Defense counsel questioned her ability, if she was being choked at the time, to scream
loudly enough to attract the attention and action of KB.

At trial, Appellant was acquitted of aggravated assault as originally alleged by
Specification 2 of Charge I, but found guilty of the lesser included offense of simple
assault. As such, we need not reach findings of fact under our Article 66, UCMJ,
authority with regard to ADS’s testimony about any touching by Appellant.2 However,
the facts which would support the members’ findings with regard to the simple assault
conviction remain relevant.

KB also testified at Appellant’s trial. He related that, while he was in his room
playing a game and listening to “pretty loud” music, he heard ADS screaming his name.
According to him, he ran out into the kitchen and living room area, where he saw ADS
standing by the sink crying and saying that she wanted to leave. He testified that
Appellant was standing about five or six feet away from ADS, next to but not blocking
the door out of the apartment. He also testified that as soon as he asked Appellant to step
aside, ADS left the apartment. KB affirmed that he and Appellant were friends and that
ADS had only been to the apartment “once or twice.” All of the other evidence in the
case was consistent with his testimony suggesting that any bias that may have existed
would have been in favor of Appellant and not ADS or any of the other victims.

After weighing the evidence and judging the credibility of the witnesses, we make
the following findings of fact. In the winter of 2008–2009, Appellant and ADS had a
disagreement about parenting their daughter that led to a confrontation in the kitchen of
Appellant’s apartment. At some point in the confrontation, Appellant’s actions caused
ADS to believe she would be physically harmed, so she cried out to KB for help. Her
cries were loud and urgent enough to attract KB’s attention over the music he was
playing. When KB reached the kitchen, ADS was still visibly upset. Appellant was
standing no more than six feet from ADS and in close proximity to the door. As soon as
KB intervened with Appellant, ADS left the apartment.

Appellant was also alleged to have unlawfully grabbed, punched, slapped, and
pushed a different victim, ANS, between 1 August 2009 and 15 March 2012. Unlike the
allegation above which arose from a single incident, the Government offered evidence of
multiple instances of abuse to support a consolidated specification.

ANS testified to a long history of abusive conduct by Appellant. She moved into
an apartment with Appellant in August 2009, and shared several different residences with
him between then and November 2011. She testified that in September 2009, Appellant

2
We note that our ability to find facts regarding bodily harm would be constrained by the member’s finding of not
guilty to the greater offenses. See United States v. Walters, 58 M.J. 391, 395 (C.A.A.F. 2003) (“A Court of Criminal
Appeals cannot find as fact any allegation in a specification for which the fact-finder below has found the accused
not guilty.”).

3 ACM 38586
struck her in the face with a closed fist. She and Appellant went to the hospital where the
staff obtained an x-ray image of her jaw and stitched up a cut on her lip. She also
testified to several assaults in or around November 2011. She said Appellant “punched
[her] a few times in the face and in the ribs.” She did not seek medical treatment
because, based upon her medical training, “with broken ribs, cracked ribs, or anything all
they can do is provide you medication for pain killers and give you bed rest.” She stated
that, on another occasion, “[she] was on his daughter’s bed and he was straddled over
[her] punching [her] in the face.” ANS also testified about several alleged sexual assaults
of which Appellant was acquitted. During the course of this testimony, she testified that
she and Appellant “were arguing in the living room and he got upset with [her] and
pushed [her] over the side of the couch.”

During cross-examination, Appellant’s trial defense counsel elicited testimony
undercutting ANS’s credibility and her recollection of events. She admitted telling
providers at the hospital that her injuries were sustained in a fall. She also admitted that
she never made any allegations of assault until after Appellant married another woman.
She conceded that she was upset by Appellant “cheating on [her]” while they were living
together. She also testified that she could not recall many of the circumstances
surrounding the alleged assaults. Trial defense counsel also generally elicited testimony
that ANS could herself be violent and confrontational at times. She also conceded that
her three statements to law enforcement alleged progressively more serious misconduct,
including allegations of sexual assault that were never raised at the time of the alleged
assault or in either of her first two statements. Appellant also introduced testimony from
an acquaintance of both ANS and Appellant that when Appellant’s name first came up in
conversation as a person they both knew, ANS derided Appellant and told the witness she
and ADS were “going to get him in the end for what he’s done.” In addition, three other
witnesses testified that ANS was not a truthful person.

The Government introduced independent evidence generally corroborating the
allegations of assault. Appellant’s roommate KB testified that he saw ANS at the
hospital with Appellant when she sought treatment for an injured lip. He testified that
Appellant told him that ANS started fighting him as he was trying to leave the apartment
and that after she hit him several times he hit her in the mouth. KB testified that he saw
no scratches or bruises on Appellant that night. The Government also introduced ANS’s
medical records from 9 September 2009. The records corroborate her testimony that she
sustained lacerations to her lip that required sutures, that she suffered severe jaw pain,
and that she told the medical providers that the injury was sustained in a fall. Finally, the
Government offered testimony from a woman who lived in the apartment adjoining the
apartment where Appellant and ANS lived between October 2011 and February 2012.
During this period of time, she saw a woman at Appellant’s apartment with an old bruise
around her eye, and she often heard loud angry yelling from Appellant’s apartment,
including one exchange where she heard a woman say “stop hitting me” and a man
respond “you don’t tell me what to f’in -- [expletive] do.” She testified that on one

4 ACM 38586
occasion she heard a banging noise, “like something was slammed -- someone was
slammed against our bedroom wall.”

After weighing the evidence and judging the credibility of the witnesses, we make
the following findings of fact. On or about 9 September 2009, Appellant struck ADS in
the mouth with a closed fist. In the fall of 2009, after an argument in their apartment,
Appellant pushed ADS over the side of a couch. In or around November 2011,
Appellant, while on top of ADS who was lying on their bed, punched ADS in the face
and ribs.

Appellant was also alleged to have assaulted his wife, BG, on or about 10 March
2013. Specifically, the Government alleged that Appellant unlawfully pulled her hair,
threw her into a counter and a refrigerator, and pushed her onto the ground. Appellant
and BG were married on 14 February 2013. On the day of the alleged assault, BG was at
home with her younger sister MB, Appellant, and Appellant’s brother. The evidence is
clear BG sought treatment at the emergency room that evening for rib pain and trouble
breathing. The testimony concerning what led up to that treatment, however, differs
substantially.

BG testified during the findings phase of the trial. She testified that she and
Appellant first got into an argument upstairs about Appellant going through her phone.
She went downstairs, but Appellant came down as well and resumed the argument in the
living room where her sister MB, and Appellant’s brother JS, were sitting. The argument
then moved to the kitchen, where it escalated from bickering into “screaming and
cussing.” When asked if the argument resulted in either her or Appellant touching each
other, she testified:

[BG]: When he first got into the kitchen, he touched my
shoulder, I mean not forcefully or anything. He just touched
my shoulder to get my attention. And, you know, my hair
was behind my back so I felt his hand on my shoulder. And
as far as touching goes, that’s the only touching that
happened.

[Defense Counsel]: When you felt his hand on your hair, did
you say anything?

[BG]: Yeah. I freaked out and I automatically assumed that
he was trying to do something to my hair, my back, or
whatever. So, I said, “Oh, you’re just going to pull my hair.”
And I was screaming that.

5 ACM 38586
 [Defense Counsel]: Now, when you’re saying, when you’re
talking about pulling your hair, is this something that you’re
yelling?

[BG]: Yes, I’m yelling.

The internal inconsistency—that they were engaged in a heated argument, yet Appellant
needed to touch her shoulder to get her attention—was never clarified. We note,
however, that this implausible version of events matches the version of events Appellant
gave to investigators soon after the incident. BG’s testimony also never clarified why
Appellant’s touch on her shoulder would have caused her to automatically assume he was
trying to pull her hair. BG went on to specifically deny that Appellant ever flung her
around by her hair, or that he slammed her into the stove, refrigerator, or counter. She
also testified that although JS came into the kitchen during the argument, MB did not.

BG also testified about the events leading up to her hospital visit. She said that
after the argument, but before leaving to take MB home, she began to have breathing
trouble: “[W]hen I was about to take [MB] home, I was, like you know, I have asthma
and I was freaking out.” But a short time later she testified:

[BG]: Well, like I said, when I [returned from taking MB
home] and I didn’t see that he was home, I immediately
freaked out. I, like you said, started hyperventilating. I was
really upset. I sat on the stairs for a little bit and, then, as I
am having a hard time breathing, my side started hurting too,
and --

[Defense Counsel]: Now, you said your side started hurting.
Was it typical for your side to be hurting, or why was your
side hurting?

[BG]: I wasn’t -- in the moment of me being upset, I was,
like, why is my side starting to hurt? I had to think about it
for a minute while I am having a hard time breathing, trying
to figure out why my side was hurting that much.

[Defense Counsel]: And did you figure out why your side
was --

[BG]: Yeah. Once I -- like, after I had called my sister and I
started to, like, be able to take deep breaths again, I started
thinking about it and I realized what it was from or [. . .]

[Defense Counsel]: And what --

6 ACM 38586
 [BG]: . . . what I believe it was from.

[Defense Counsel]: What do you believe the side pain was
from?

[BG]: Earlier in the day, Tavarse and I had sex. We were up
in the room and he, like, pushed me up against the dresser and
all of the drawers were hanging out of the dresser, and I felt it
at the time. Like, I felt like a little pain in my side, but I
didn’t think anything of it at the time. It wasn’t, like -- You
know, it hurt at the moment when it happened, like oww, like
you hit something, but I didn’t think anything of it.
Afterwards, it didn’t start coming back to be extremely
painful until I was having a hard time breathing.

During Appellant’s interview with law enforcement, he stated that BG told him that she
was “running around outside where she hit a pole.” The investigator skeptically asked if
she said she “hit a pole,” to which Appellant responded “[h]er exact words.”

Appellant’s brother, JS, also testified about the events in the kitchen.

[Defense Counsel]: Okay. During that argument were you in
the living room the whole time?

[JS]: Towards -- until the end of the argument, yes.

[Defense Counsel]: And was [MB] there with you?

[JS]: Yes.

[Defense Counsel]: Now, you said until towards -- until the
end of the argument?

[JS]: Um-hm.

[Defense Counsel]: Where did you go towards the end of the
argument?

[JS]: I went into the kitchen where Tavarse and [BG] were.

[Defense Counsel]: So, at some point Sergeant Green and
[BG] had moved from upstairs to down in the kitchen?

[JS]: Yes, Sir.

7 ACM 38586
 [Defense Counsel]: And what caused you—why did you go
into the kitchen?

[JS]: Because they was [sic] yelling and arguing, and I just
feel it was inappropriate to yell when you are in front of
company.

[Defense Counsel]: Could you tell was their arguing
affecting [MB]?

[JS]: At the time, no. She was just standing there.

[Defense Counsel]: And when you went to the kitchen, what
did you see?

[JS]: I went to the kitchen and Tavarse and [BG] were
separated. Tavarse by the sink and [BG] was over by the
counter.

[Defense Counsel]: And were you [the] first one to go into
the kitchen?

[JS]: Yes, Sir.

[Defense Counsel]: At any time that evening did you see any
physical altercation?

[JS]: No, sir. It was all verbal.

[Defense Counsel]: And when you went to the kitchen,
where was [MB]?

[JS]: She was still on the couch.

[Defense Counsel]: Did she ever follow you?

[JS]: No.

Neither counsel clarified the inconsistency between JS’s testimony that MB remained
seated on the couch, suggesting she could not see what happened in the kitchen, and his
answer that during this timeframe MB “was just standing there,” suggesting that she
might have seen.

MB testified during the Government’s case, and her testimony directly
contradicted both BG and JS. She testified that she went into the kitchen when she heard
her sister yell, “Don’t touch me.” Then as she got to the kitchen doorway, “[she] saw

8 ACM 38586
him grab her by her hair and he swung her across the kitchen and then after she hit the
fridge she dropped to the ground . . . .”

BG’s other sister, HB, testified about taking BG to the hospital. According to her,
during the ride BG explained what had happened:

And she was like, “And then he grabbed me by the hair and
swung me around,” and she’s like, I don’t know. I was like,
“[BG] tell me.” She kept crying and she’s like, “Well, I think
I hit—I hit the counter and I think I hit the fridge and I was
just on the floor,” and I was like, “What?” and I was like,
“Are you okay?” And she’s like, “I think my ribs are
broken . . . .”

The hospital records show that BG told the staff that the source of her injuries was being
punched in the ribs. They also note that her “left lower lateral and anterior ribs” were
tender.

In order to address Appellant’s assignments of error, we must resolve this
conflicting testimony. We are cognizant that BG, the alleged victim, was in the best
position to know what transpired that night. However, in establishing whether she
truthfully recounted the events, we must also weigh her bias towards her husband, any
inconsistencies between her testimony and prior statements, and the degree to which her
description of events aligns with the medical records. The testimony of BG and JS had
inherent inconsistencies suggesting that they had interwoven exculpatory explanations for
the injuries with their true recollection of events, or that they were offering implausible
explanations to account for potentially incriminating evidence from other sources. The
evidence includes four different explanations for the injuries from BG. In contrast, MB’s
version of events and HB’s account of BG’s explanation shortly after the event are both
consistent with each other and consistent with the medical records.

After weighing the evidence and judging the credibility of the witnesses, we find
that on or about 10 March 2013, while in the kitchen of their home, Appellant grabbed
BG by the hair, swung her into the counter and refrigerator, and pushed her onto the
floor.

Legal and Factual Sufficiency

Appellant argues that the evidence was factually and legally insufficient to support
four specifications: Specifications 2, 5, and 8 of Charge I, as well as Specification 2 of
Charge II. We review issues of factual and legal sufficiency de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).

9 ACM 38586
 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.” United States
v. Turner, 25 M.J. 324, 325 (C.M.A. 1987), quoted in United States v. Reed, 54 M.J. 37,
41 (C.A.A.F. 2000). 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 test for legal sufficiency of the evidence 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.’” Turner, 25 M.J. at 324,
quoted in United States v. Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002). The term
reasonable doubt 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). “[I]n resolving questions of legal
sufficiency, 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)
(citations omitted). 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)
(citations omitted).

Charge I, Specification 2

Under Specification 2 of Charge I, the members found Appellant guilty of the
lesser included offense of simple assault by offer. Appellant claims that the evidence was
legally and factually insufficient “because there is no credible evidence that Appellant
even touched Ms. ADS.” However, as the military judge properly instructed the panel,
“this lesser offense of simple assault requires only the offer to do bodily harm.”
Appellant need only have placed her in reasonable apprehension of harm.

The panel returned a general verdict of guilt as to the simple assault, which creates
some ambiguity as to the precise conduct of Appellant which the members found created
a reasonable apprehension of harm.3

3
The military judge, while instructing on this lesser included offense, told the members that:

In order to find the accused guilty of this lesser offense with regard to
Specification 2 of Charge I, you must be convinced by legal and competent
evidence beyond reasonable doubt: (1) That, at or near Great Falls, Montana,
between on or about 1 November 2008 and on 22 or about 1 April 2009, the
accused offered to do bodily harm to [ADS]; (2) That, the accused did so by
strangling her on the neck; and, (3) That, the offer was done with unlawful force
or violence. For Specification 2 of Charge I, this lesser included offense differs
from the lesser included offense of battery, which I discussed previously, in that

10 ACM 38586
 In returning such a general verdict, a court-martial panel
resolves the issue presented to it: did the accused commit the
offense charged, or a valid lesser included offense, beyond a
reasonable doubt? A factfinder may enter a general verdict of
guilt even when the charge could have been committed by
two or more means, as long as the evidence supports at least
one of the means beyond a reasonable doubt.

United States v. Brown, 65 M.J. 356, 359 (C.A.A.F. 2007). Accordingly, if we find the
evidence legally and factually sufficient to conclude beyond a reasonable doubt that any
of Appellant’s conduct during the incident in the kitchen constituted an offer to do bodily
harm, and that such offer was made with unlawful force or violence, then the panel’s
general verdict of guilt to the lesser included offense of simple assault may be upheld.

Having resolved the conflicting testimony as described above, we find that
Appellant’s conduct caused ADS to reasonably apprehend bodily harm. ADS testified
that Appellant “cornered” her in the kitchen. Although the panel apparently did not
believe her further description of Appellant choking her until KB physically pulled him
away was proved beyond a reasonable doubt, actual touching is not required to sustain
the conviction. Merely cornering her, in the context of a heated disagreement, could have
been enough to cause her to reasonably apprehend bodily harm. KB’s testimony that
ADS cried out loud enough to be heard over the music, that her cries sounded sufficiently
urgent to cause him to investigate, and that by the time he got to the kitchen ADS was
still crying constitute strong circumstantial evidence that Appellant’s conduct did indeed
cause ADS to fear he was about to harm her. We reach that conclusion ourselves beyond
a reasonable doubt, and find that a reasonable factfinder could also have done so.

Charge I, Specification 5

Under Specification 5 of Charge I, the members found Appellant guilty of
unlawfully pulling BG’s hair, throwing her into a counter and refrigerator, and pushing
her to the ground. Appellant argues that three out of four individuals present denied that
any physical altercation took place and those who testified otherwise were not credible.
We disagree. We find the quality of the testimony concerning this allegation more
persuasive than the quantity. Although Appellant denied committing any assault, and his

the previous lesser included offense requires as an essential element that you be
convinced beyond a reasonable doubt that the accused did bodily harm to
[ADS]; whereas, this lesser offense of simple assault requires only the offer to
do bodily harm.

This instruction was plain error, in that the lesser included offense of simple assault does not require proof that
Appellant actually strangled ADS on the neck. However, we find that this instruction did not prejudice Appellant
because the erroneous instruction only served to heighten the Government’s burden of proof, not lower it. The
instruction as a whole adequately differentiated between the greater and lesser offenses.

11 ACM 38586
wife and brother testified substantially in accordance with his denial, all of those parties
have an obvious bias. We find the account given by BG at trial unpersuasive and
inconsistent with both the injuries described in the medical records and the mechanism of
injury she reported to the medical staff that night. MB’s account of events matches up
convincingly with HB’s account of BG’s statements that night. In accordance with our
findings of fact above, we conclude beyond a reasonable doubt that Appellant unlawfully
pulled BG’s hair, threw her into a counter and refrigerator, and pushed her to the ground.
We similarly decide that a reasonable factfinder could reach that conclusion as well.

Charge I, Specification 8

Under Specification 8 of Charge I, the members convicted Appellant of unlawfully
grabbing, punching, slapping, and pushing ANS. As discussed above, after resolving the
conflicting testimony, we find that Appellant punched and pushed ANS. Although there
was no direct testimony asserting that Appellant “grabbed” ANS, there was substantial
circumstantial evidence to that effect. ANS described one assault where Appellant got on
top of her while she was in her daughter’s bed and punched her in the face and ribs.
Drawing every reasonable inference in favor of the prosecution, a reasonable factfinder
could conclude that such an assault would necessitate grabbing at some point. While it is
theoretically possible for such an assault to take place without grabbing the victim, the
evidence need not disprove every possible or fanciful doubt. It need only establish
beyond a reasonable doubt that the appellant is guilty of the acts alleged. We ourselves,
having made allowances for not personally observing the witnesses, are convinced
beyond a reasonable doubt that Appellant also grabbed ANS.

The specific allegation that Appellant slapped ANS is a different matter. There
was no direct evidence that Appellant slapped ANS. Appellant’s neighbor testified that
she heard fighting, heard a woman say “stop hitting me,” and saw a woman at
Appellant’s apartment with an old bruise around her eye. Even drawing every reasonable
inference in favor of the prosecution, we find no evidentiary link between that testimony
and slapping, as opposed to other means of striking ANS. We ourselves are not
convinced beyond a reasonable doubt that Appellant specifically slapped ANS.
Accordingly, we find that portion of the specification legally and factually insufficient,
and modify the findings as described in our decretal paragraph below.

Charge II, Specification 2

Specification 2 of Charge II alleges Appellant made a false official statement to an
investigator, in that he stated, “I never touched [BG] except to put my hand on her
shoulder.” Appellant argues that since the evidence supporting the allegation of
assaulting BG was factually and legally insufficient, then the evidence supporting the
allegation he made a false denial of that offense is legally and factually insufficient as
well. As discussed above, we find the evidence supporting the allegation of assault

12 ACM 38586
legally and factually sufficient. However, we still review de novo the factual and legal
sufficiency of the allegation that he also falsely denied any assault. We find that, after
drawing all reasonable inferences in favor of the prosecution, a reasonable factfinder
could have found all of the elements of the offense beyond a reasonable doubt. After
weighing all the evidence in the record of trial and recognizing that we did not see or hear
the witnesses, this Court is also convinced of the appellant's guilt beyond a reasonable
doubt.

Admission of Neighbor’s Testimony

Appellant further argues that the military judge erred in admitting the testimony of
EC, who was for a period of time Appellant’s neighbor. We review a military judge’s
decision to admit evidence for an abuse of discretion. United States v. Solomon, 72 M.J.
176, 179 (C.A.A.F. 2013). “The abuse of discretion standard is a strict one, calling for
more than a mere difference of opinion. The challenged action must be arbitrary,
fanciful, clearly unreasonable, or clearly erroneous.” Id. (quoting United States v. White,
69 M.J. 236, 239 (C.A.A.F. 2010)). When a military judge lays out a Mil. R. Evid. 403
analysis on the record, we will overturn the ruling only if there is a clear abuse of
discretion. United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000).

In this case, the military judge’s decision to admit EC’s testimony under Mil. R.
Evid. 401 and 403 was clearly within his reasonable discretion. Appellant’s trial defense
counsel raised timely objections on the basis of relevance and argued that even if
relevant, the probative weight of the evidence was substantially outweighed by unfair
prejudice to Appellant. Evidence is relevant if it has “any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Mil. R. Evid. 401. ANS testified that
Appellant was physically abusive towards her in Appellant’s apartment while Appellant
lived next door to EC. EC testified that she heard sounds consistent with such behavior
coming from Appellant’s apartment, and saw a woman with a bruise around her eye in
Appellant’s apartment during that period of time. While EC’s testimony is not direct
evidence of any charged offense, it is circumstantial evidence corroborating ANS’s
version of events. As such, it tends to make the existence of the facts underlying her
allegation somewhat more probable, and was legally relevant under Mil. R. Evid. 401.

Even though relevant, evidence may be excluded under Mil. R. Evid. 403 if its
probative value is substantially outweighed by unfair prejudice. Since the military judge
in this case conducted his balancing on the record, our analysis does not focus on whether
we would find the probative value substantially outweighed, but whether the military
judge’s ruling was a clear abuse of discretion. We find that it was not. The value of the
circumstantial evidence was not insubstantial, especially in light of Appellant’s attacks on
ANS’s credibility. The military judge applied the correct law and his findings of fact
were not clearly erroneous.

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 Appellant also raises the argument, for the first time on appeal, that EC’s
testimony was improper character evidence under Mil. R. Evid. 404. Appellant did not
raise this objection at trial.

Where an appellant has not preserved an objection to
evidence by making a timely objection, that error will be
forfeited in the absence of plain error. A timely and specific
objection is required so that the court is notified of a possible
error, and so has an opportunity to correct the error and
obviate the need for appeal.

United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014) (internal quotation marks and
citations omitted). Under plain error review, the appellant has the burden of showing
there was error, that the error was plain or obvious, and that the error materially
prejudiced a substantial right of the appellant. United States v. Girouard,
70 M.J. 5, 11 (C.A.A.F. 2011). Appellant has failed to demonstrate error in this case. As
noted above, EC’s testimony was circumstantial evidence corroborating ANS’s
testimony. As such, it had a valid non-propensity purpose, and the military judge did not
err by declining to, on his own initiative, exclude EC’s testimony under Mil. R. Evid.
404.

Post-trial Delay

Finally, Appellant asserts that this Court should grant him meaningful relief in
light of the 142 days that elapsed between completion of trial and the convening
authority’s action. Under United States v. Moreno, courts apply a presumption of
unreasonable delay “where the action of the convening authority is not taken within 120
days of the completion of trial.” United States v. Moreno, 63 M.J. 129, 142 (2006).
Appellant does not assert any prejudice, but argues that the court should nonetheless
grant relief under United States v. Tardif, 57 M.J. 219, 223–24 (C.A.A.F. 2002).

This court set out a non-exhaustive list of factors we consider when evaluating the
appropriateness of Tardif relief in United States v. Bischoff, 74 M.J. 664 (A.F. Ct. Crim.
App. 2015). See also United States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015)
(articulating factors specifically tailored to answer the question of whether Tardiff relief
is appropriate). The factors include the length and reasons for the delay, the length and
complexity of the record, the offenses involved, and the evidence of bad faith or gross
negligence in the post-trial process. Appellant has not asserted any additional factors that
merit consideration in this case. The length of the delay only exceeded the standard by
22 days. The Government obtained a declaration establishing that, while the case was not
languishing due to inattention, the reasons for the delay were fairly routine matters of
ensuring an accurate and complete record of trial. The record itself was substantial,
comprised of a 1,105 page transcript and spanning 9 volumes. While Appellant was

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acquitted of the most serious charges in this case, he stands convicted of assaults on three
separate intimate partners and false statements to investigators related to those assaults.
Finally, there was no evidence of bad faith or gross negligence. On the whole, we find
the delay, although presumptively unreasonable, to be reasonable in this case and
conclude no Tardif relief is warranted.

Excluded Material in Appellate Record

In the course of conducting our review under Article 66, UCMJ, the court
discovered that the optical disk included in the record as Prosecution Exhibit 3 contained
portions of the recorded interview between Appellant and law enforcement agents that
had been excluded by the military judge. We specified for briefing by the parties the
question of how the presence of the disk affects our review. In response, the Government
solicited information from the members as to whether they recalled seeing any of the
excluded video during their review. All but one of the members did not recall whether
they saw any of the excluded video. One member specifically recalled that he did not
view any video depicting more than what was played in open court, and that he did not
view Appellant’s request for an attorney.

The requirement for a complete, verbatim record in a general court-martial
resulting in a punitive discharge is established in Article 54(c)(1)(A), UCMJ, 10 U.S.C. §
854(c)(1)(A). “The requirement that a record of trial be complete and substantially
verbatim in order to uphold the validity of a verbatim record sentence is one of
jurisdictional proportion that cannot be waived.” United States v. Davenport, 73 M.J.
373, 376 (quoting United States v. Henry, 53 M.J. 108, 110 (C.A.A.F. 2000)). Our
superior court has held that the record need not be literally verbatim, that is a word-for-
word account of the proceedings, but rather just substantially verbatim. Id. at 377.
Generally speaking, in assessing whether a record is verbatim, the threshold question is
“whether the omitted material was ‘substantial,’ either qualitatively or quantitatively.”
United States v. Lashley, 14 M.J. 7, 9 (C.M.A. 1982). In this case, the question is not
whether the record omitted material, but rather whether the record accurately reflects the
proceedings in the first place. Accordingly, the first step in our analysis is to determine
what constituted Prosecution Exhibit 3 in the proceedings below.

Based upon our review of the record, we find as fact that Prosecution Exhibit 3, as
admitted by the military judge, played in open court, and provided to the members during
deliberations, consisted of an optical disk containing only two video files depicting the
portion of Appellant’s interview up to but not including his request for an attorney. A
Court of Criminal Appeals may use its Article 66, UCMJ, authority to decide factual
questions concerning how a case procedurally unfolded below. See United States v.
Stoffer, 53 M.J. 26, 27 (C.A.A.F. 2000). In this case, the record is in conflict as to
whether Prosecution Exhibit 3 consisted of the redacted video, as indicated by the
transcript, or the unredacted video, as indicated by the disk in the appellate record.

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Appellant appears to take the position that the disk in the record is presumptively the
exhibit that went to the members. Absent any other indication in the record, that
argument would be persuasive. However, the transcript of proceedings clearly suggests
the opposite. Only two video files were played for the members. The transcript indicates
that the video played in open court ended before Appellant asked for an attorney. The
assistant trial counsel indicated verbally on the record that the last video file played to
completion. The assistant trial counsel then provided the disk itself to the court reporter.
The exhibits provided to the members were retrieved directly from the court reporter.
We accord more weight to the transcript than the disk contained in the record because the
transcript provides direct evidence of the content of the exhibit, whereas the contents of
the disk could only be ascertained indirectly.

Our factual finding with regard to the content of Prosecution Exhibit 3 at trial does
not terminate our inquiry. We must still determine whether, due to the inclusion of the
extraneous matter, the record can still be considered complete and substantially verbatim.
We note at the outset that Appellant does not assert, even as an alternative argument, that
the state of the record precludes our review under Article 66, UCMJ. That position is
consistent with what little case law we could find on the matter. In United States v.
Kulathungam,4 our superior court held that “it is inappropriate for a trial counsel to add to
the record of trial things that were not said or done at the court-martial. However, such
misconduct does not require reversal when there is no impact on the pleas or the
sentence.” United States v. Kulathungam, 54 M.J. 386, 387–88 (C.A.A.F. 2001). In this
case, it appears that the inclusion of material excluded by the military judge in the
appellate record was negligent, not intentional. We find no evidence that such matters
were ever provided to the members, and accordingly we find that they did not affect the
findings or the sentence. We also note that, although the opinion did not address the
issue directly, the Kulathungam court did not find that the willful alterations to the
transcript precluded appellate review. Accordingly, we find that the inclusion of the
unredacted video in the record of trial was error, but that such error did not materially
prejudice a substantial right of Appellant and therefore does not warrant reversal. Article
59(a), UCMJ, 10 U.S.C. § 859(a).

Sentence Reassessment

Having found the evidence factually and legally insufficient as to the allegation in
Specification 8 of Charge I that Appellant slapped ANS, 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, 15 (C.A.A.F. 2013). Our superior court has
repeatedly held that if we “can determine to [our] satisfaction that, absent any error, the

4
In Kulathungam, the trial counsel, in an effort to cure the military judge’s failure to announce the findings in a
guilty plea trial, deliberately included language purporting to announce findings in the transcript knowing that such
additions did not reflect the actual proceedings at trial. United States v. Kulathungam, 54 M.J. 386, 387 (C.A.A.F.
2001).

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sentence adjudged would have been of at least 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 excepting
slapping from Specification 8 of Charge I. The maximum punishment would remain the
same. Appellant remains convicted of several different mechanisms of assault against
ANS, capturing the gravamen of the misconduct and retaining 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.

Conclusion

We affirm Specification 8 of Charge I, excepting the language “slap.” We affirm
the remainder of the findings. The findings, as modified, and the sentence as reassessed,
are correct in law and fact, and no remaining error materially prejudicial to the substantial
rights of the appellant occurred. Articles 59(a) and 66(c), UCMJ. Accordingly, the
findings, as modified, and the sentence, as reassessed, are AFFIRMED.

FOR THE COURT

STEVEN LUCAS
Clerk of the Court

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