Before
GASTON, STEWART, and BAKER
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Maurice J. LEWIS
Sergeant (E-5), U.S. Marine Corps
Appellant
No. 201900048
Decided: 17 August 2020
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges:
John L. Ferriter (arraignment)
Jeffrey V. Munoz (trial)
Sentence adjudged 12 October 2018 by a general court-martial con-
vened at Marine Corps Air Station Yuma, Arizona, consisting of officer
and enlisted members. Sentence approved by the convening authority:
dishonorable discharge.
For Appellant:
Lieutenant Commander William L. Geraty, JAGC, USN
For Appellee:
Major Kyle D. Meeder, USMC
Lieutenant Kimberly Rios, JAGC, USN
Judge BAKER delivered the opinion of the Court, in which Senior
Judge GASTON and Judge STEWART joined.
United States v. Lewis, NMCCA No. 201900048
Opinion of the Court
_________________________
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under NMCCA
Rule of Appellate Procedure 30.2.
_________________________
BAKER, Judge:
Appellant was convicted, contrary to his pleas, of three specifications of
failure to obey a lawful order or regulation for fraternization and wrongfully
providing alcohol to a person under the age of 21, one specification of sexual
assault by causing bodily harm, one specification of indecent viewing, and one
specification of assault consummated by a battery in violation of Articles 92,
120, 120c, and 128, Uniform Code of Military Justice [UCMJ], 10 U.S.C.
§§ 892, 920, 920c, 928 (2012). 1 He asserts that the evidence is legally and
factually insufficient to support his convictions for assault consummated by a
battery, sexual assault, and indecent viewing.
We find no prejudicial error and affirm.
I. BACKGROUND
Appellant worked with the victim, Corporal [Cpl] “Harris,” 2 from at least
November 2015 through the summer of 2016. At the time they met,
Cpl Harris was a Lance Corporal and Appellant was a Sergeant. 3 While
working professionally with Cpl Harris, Appellant socialized with him at non-
command events and invited Cpl Harris to meet up with him off-duty, includ-
ing to consume alcohol together.
In November 2015 Cpl Harris, who was then underage, asked Appellant
to purchase alcohol for him. 4 After purchasing and providing the alcohol to
Cpl Harris, Appellant joined Cpl Harris and others in a barracks room where
1 Appellant was acquitted of an additional specification charging him with unlaw-
fully committing a sexual act when he knew or reasonably should have known the
victim was asleep, in violation of Article 120, UCMJ, 10 U.S.C. § 920 (2012).
2 The names used in this opinion are pseudonyms.
3 Cpl Harris has since separated from the Marine Corps.
4 Cpl Harris turned 21 in July 2016. R at 546.
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Opinion of the Court
Marines were playing a videogame. Cpl Harris became tired and went back to
his barracks room to take a shower. As he typically did, he left the door to his
room bolted open so that friends could come and go from the room. He had no
plans to see Appellant again that night and did not invite Appellant to come
to his room.
While Cpl Harris was taking a shower, Appellant entered his room. Ap-
pellant then entered the bathroom and began pulling open the shower cur-
tain, startling Cpl Harris, who stopped the curtain from being opened fully.
Appellant asked permission to join Cpl Harris in the shower. Cpl Harris
testified he could see Appellant’s body, and that from where Appellant was
positioned it was possible for Appellant to see Cpl Harris’s naked body,
including his buttocks. He asked Appellant to leave, and Appellant left the
bathroom.
During March 2016, Appellant was diagnosed with human immunodefi-
ciency virus [HIV]. He responded well to treatment, and by mid-May Appel-
lant’s viral load tested at an undetectable level (albeit not zero). Near in time
to his diagnosis, he was informed by medical personnel that prior to engaging
in any sexual acts, he was required to verbally advise any prospective sexual
partner that he was HIV-positive. Covered sexual acts would include acts
involving Appellant’s mouth and a bare penis. He was also presented with a
document entitled, “HIV Evaluation Treatment Unit Counseling Statement.” 5
Because of Appellant’s HIV-positive status, this document advised him, in
pertinent part, that
prior to engaging in sexual activity in which my bodily fluids
may be transmitted to another person, I must verbally advise
any prospective sexual partner that I am HIV positive and that
there is a risk of infection. If my partner consents to sexual re-
lations, I shall not engage in sexual activities without the use
of a condom. 6
Thus, regardless of how low his viral load was, Appellant was advised he
must inform prospective sexual partners of his HIV status prior to engaging
in a sex act. While oral sex is a covered sex act, it is generally considered a
low-risk sexual activity for transmission of HIV, largely because HIV is not
found in saliva; however, if there is a lesion or other manner whereby blood
5 Pros. Ex. 12.
6 Id.
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Opinion of the Court
could be introduced into saliva, then there would be a risk of conveying the
virus to an uninfected sexual partner.
In late-May or early-June 2016, Cpl Harris and Appellant were at a party
together at an off-base residence where they had been drinking alcohol late
into the night. Cpl Harris fell asleep on a couch; Appellant was next to him
while he fell asleep. When Cpl Harris fell asleep, he had his jeans on. He
awoke to find his jeans had been pulled down and were around his ankles,
and Appellant’s head was between his legs and his penis was in Appellant’s
mouth. Cpl Harris reported yelling, “Get off. What are you doing?” 7 Appellant
ceased, and Cpl Harris got up, pulled up his pants, and left the residence.
In August 2016, Cpl Harris made a restricted report regarding the inci-
dent; he conveyed that he made the report not to involve law enforcement but
in an effort to seek help, such as the opportunity to see a counselor. However,
he had also disclosed the information to a friend; that friend, in turn, con-
veyed Cpl Harris’s allegations to the Naval Criminal Investigative Service
[NCIS], which opened an investigation. When interrogated by NCIS, Appel-
lant denied any consensual sexual activity with Cpl Harris. At trial,
Cpl Harris testified that he did not consent to Appellant placing his penis in
Appellant’s mouth; that he did not allow Appellant to do it; that he would not
have consented; and that there was no amount of alcohol that would have
made him consent to allowing Appellant to perform oral sex on him.
Cpl Harris testified that he was first informed of Appellant’s HIV status by
his Victims’ Legal Counsel after the investigation into Appellant’s actions
began. Cpl Harris added that had he known Appellant was positive for HIV,
that would have made his denial of consent “absolute.” 8
II. DISCUSSION
Appellant asserts the evidence is legally and factually insufficient to sup-
port three of his convictions. We review such questions de novo. UCMJ art.
66(c); United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). To
determine legal sufficiency, we ask whether, “considering the evidence in the
light most favorable to the prosecution, a reasonable fact-finder could have
found all the essential elements beyond a reasonable doubt.” United States v.
Turner, 25 M.J. 324, 324-25 (C.M.A. 1987) (citing Jackson v. Virginia, 443
U.S. 307, 319 (1979)). In conducting this analysis, we must “draw every
7 R. at 561.
8 R. at 565.
4
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Opinion of the Court
reasonable inference from the evidence of record in favor of the prosecution.”
United States v. Gutierrez, 74 M.J. 61, 65 (C.A.A.F. 2015).
In evaluating factual sufficiency, we determine whether, after weighing
the evidence in the record of trial and making allowances for not having
observed the witnesses, we are convinced of the appellant’s guilt beyond a
reasonable doubt. Turner, 25 M.J. at 325 (C.M.A. 1987). In conducting this
unique appellate function, 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. Proof beyond a “[r]easonable doubt, however,
does not mean the evidence must be free from conflict.” United States v.
Rankin, 63 M.J. 552, 557 (N-M. Ct. Crim. App. 2006).
A. Legal and Factual Sufficiency of Assault Consummated by a Bat-
tery
In the Specification of Charge IV, Appellant was convicted of assault con-
summated by a battery. In order to prove this offense, the Government was
required to prove that (1) Appellant did bodily harm to Cpl Harris; and (2)
the bodily harm was done with unlawful force or violence. See UCMJ art.
128(b)(2). “Bodily harm” is defined by the Manual for Courts-Martial, United
States (2016 ed.) [MCM] to mean “any offensive touching of another, however
slight.” MCM, pt. IV, ¶ 54.c.(1)(a). As charged, the bodily harm alleged in the
second element is Appellant’s touching of Cpl Harris’s penis with his mouth
while knowingly being HIV-positive, without disclosing such status to
Cpl Harris.
Appellant argues his failure to disclose his HIV status does not prove that
a nonconsensual sexual act or an assault consummated by a battery occurred.
His argument centers on the fact that his viral load had dropped to an unde-
tectable level, as demonstrated by a test conducted on 13 May 2016, just prior
to committing the sexual act upon Cpl Harris.
“Consent” is defined as “a freely given agreement to the conduct at issue
by a competent person.” United States v. Forbes, 78 M.J. 279, 281 (C.A.A.F.
2019) (quoting MCM, pt. IV, ¶ 45.a.(g)(8)(A)). In Gutierrez, the appellant
failed to disclose his HIV-positive status to sexual partners and was convicted
of aggravated assault. 74 M.J. at 64-67. The Court of Appeals for the Armed
Forces [CAAF] reversed his conviction for aggravated assault, concluding the
appellant’s conduct was not likely to cause death or grievous bodily harm
where the risk of HIV transmission was estimated to be a 1-in-500 occurrence
for unprotected vaginal sex and “almost zero” for unprotected oral sex. Id. at
66-67. However, the court determined that Gutierrez was guilty of the lesser
5
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Opinion of the Court
included offense of assault consummated by a battery, because by failing to
disclose his HIV status, “Appellant’s conduct included an offensive touching
to which his sexual partner[ ] did not provide meaningful informed consent.”
Id. at 68 (citing R. v. Cuerrier, [1998] 2 S.C.R. 371, 372 (Can.) (“Without
disclosure of HIV status there cannot be true consent.”)).
CAAF subsequently extended this reasoning to support a conviction for
sexual assault by a nonconsensual sexual act, stating it has “long held . . .
that failure to disclose one’s HIV-positive status before engaging in sexual
activity constitutes an offensive touching. . . .” Forbes, 78 M.J. at 281 (citing
United States v. Joseph, 37 M.J. 392, 395 (C.M.A. 1993)) (concluding con-
sistent with Article 120(b)(1)(B), UCMJ, that the appellant committed a
sexual assault each time he had sexual intercourse with one of the victims
without first informing her of his HIV status and thereby lawfully obtaining
her consent to the intercourse).
Appellant learned that he was HIV-positive in March 2016. By the middle
of May 2016, his viral load was undetectable. Subsequently, between late-
May and early-June of that same year, Appellant placed Cpl Harris’s penis in
his mouth without first advising him of his HIV status. Thus, it is uncontest-
ed that Appellant knew he was diagnosed HIV-positive prior to the occur-
rence of the sexual act in question and failed to disclose his HIV status to
Cpl Harris prior to engaging in that sexual act. He was charged with a
violation of Article 128, UCMJ, for an offensive touching in that he did not
disclose his HIV status to Cpl Harris prior to engaging in the sexual act,
which per Gutierrez and Forbes constitutes an offensive touching.
Appellant invites us to consider the likelihood of transmission of HIV as
an additional element to the charged misconduct. We decline this invitation,
which would require us to depart from binding precedent by our superior
court. See United States v. Andrews, 77 M.J. 393, 399 (C.A.A.F. 2018) (quot-
ing United States v. Quick, 74 M.J. 332, 343 (C.A.A.F. 2015)) (stating the
well-settled principle of vertical stare decisis that “courts ‘must strictly follow
the decisions handed down by higher courts’”). While we recognize that the
improvement of treatment regimens over the years has steadily lowered the
risk of transmission for those who are HIV-positive, it is the prerogative of
our superior court, not this one, to determine whether this presents a “signif-
icant change in circumstances” warranting a departure from its prior prece-
dents. See Andrews, 77 M.J. at 399; United States v. Davis, 76 M.J. 224, 228
n.2 (C.A.A.F. 2017) (“It is this Court’s prerogative to overrule its own deci-
sions.”).
Nor do we find this case distinguishable from Gutierrez. In making his
argument, Appellant cites to R. v. Cuerrier, a decision of the Supreme Court
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Opinion of the Court
of Canada (which in turn was cited by CAAF in Gutierrez), wherein the court
stated:
Without disclosure of HIV status there cannot be a true con-
sent. The consent cannot simply be to have sexual intercourse.
Rather, it must be consent to have intercourse with a partner
who is HIV-positive. The extent of the duty to disclose will in-
crease with the risks attendant upon the act of intercourse. The
failure to disclose HIV-positive status can lead to a devastating
illness with fatal consequences and, in those circumstances,
there exists a positive duty to disclose.
Cuerrier, 2 S.C.R. at 371 (emphasis added). Appellant argues that if there is
no risk of transmission (due to both an undetectable viral load and a sexual
act with virtually no risk of transmission), then there is no lack of meaningful
informed consent. However, in Gutierrez, as here, the charges encompassed
unprotected oral sex, for which, as here, the risk of HIV transmission was
determined to be “almost zero.” Gutierrez, 74 M.J. at 64. Despite the virtually
zero risk of transmission, our superior court plainly held that this conduct
constituted “an offensive touching to which [Gutierrez’s] sexual partners did
not provide meaningful informed consent,” and affirmed his conviction for
assault consummated by a battery. Id. at 68.
Thus, we echo the conclusion of the Supreme Court of Canada, that with-
out disclosure of HIV status, there cannot be true consent. Following the
binding holding of Gutierrez, we conclude that however low the risk of HIV
transmission may have been, Appellant was diagnosed with HIV prior to the
act, was advised to inform prospective sexual partners of his HIV status, and
failed to so inform Cpl Harris prior to engaging in unprotected oral sex; thus,
his conduct was “an offensive touching of another, however slight . . . to
which [Cpl Harris] did not provide meaningful informed consent.” Gutierrez,
74 M.J. at 68. Appellant’s conduct therefore satisfies both elements of Article
128 (b)(2), UCMJ.
Considering the evidence in a light most favorable to the Prosecution, we
conclude that a reasonable fact-finder could have found all the essential
elements beyond a reasonable doubt. The evidence is thus legally sufficient to
support the conviction. Regarding factual sufficiency, after weighing the
evidence in the record of trial and making allowances for not having person-
ally observed the witnesses, we are convinced of Appellant’s guilt beyond a
reasonable doubt.
B. Legal and Factual Sufficiency of Sexual Assault by Bodily Harm
In Specification 1 of Charge II, Appellant was convicted of committing a
sexual act upon Cpl Harris by causing penetration of Appellant’s mouth with
7
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Opinion of the Court
Cpl Harris’s penis without his consent. In order to prove this offense, the
Government was required to prove that (1) Appellant caused penetration of
his mouth with Cpl Harris’s penis; and (2) Appellant did so by causing bodily
harm to Cpl Harris. UCMJ art. 120(b)(1)(B).
“Bodily harm” in the context of Article 120, UCMJ, means “any offensive
touching of another, however slight, including any nonconsensual sexual act.”
UCMJ art. 120(g)(3). Consent is defined as “a freely given agreement to the
conduct at issue by a competent person.” UCMJ art. 120(g)(8)(A). “Lack of
consent may be inferred based on the circumstances of the offense.” UCMJ
art. 120(g)(8)(C).
Appellant challenges the legal and factual sufficiency of his conviction,
arguing that the only evidence presented at trial to prove a lack of consent
was the testimony of Cpl Harris. Cpl Harris testified he had fallen asleep on
a couch after a house party, and awoke to find his penis in Appellant’s mouth.
He exclaimed, “Get off. What are you doing?” 9 A few months later, he filed a
restricted report. Cpl Harris made clear that he did not consent to the sex act
in question, and that he found the nonconsensual act to be an offensive
touching. He added that had he known Appellant was positive for HIV, that
would have made his denial of consent “absolute.” 10
Appellant argues that because the members specifically acquitted him of
committing this sexual act when he knew or reasonably should have known
Cpl Harris was asleep, they “rejected [Cpl Harris’s] factual narrative of the
sexual encounter . . . .” 11 If this factual narrative was rejected, Appellant
suggests, the Government is left with only an “ex post facto” argument that
Cpl Harris did not consent to the sexual act at issue. 12 However, Appellant’s
acquittal of the other specification does not necessarily imply that the mem-
bers rejected a narrative that Cpl Harris was in fact asleep at the time of the
sexual act. That specification required that the Government demonstrate
Appellant knew or reasonably should have known that Appellant was asleep
at the time of the act. Thus, it is possible that the members believed
Cpl Harris was asleep at the time of the sexual act, but were not convinced
beyond a reasonable doubt that Appellant knew, or should have known, that
this was the case. Accordingly, Appellant’s acquittal of that specification is
9 R. at 561.
10 R. at 565.
11 App. Reply Br. at 2.
12 Id. at 3.
8
United States v. Lewis, NMCCA No. 201900048
Opinion of the Court
not necessarily inconsistent with his conviction on Specification 1 of Charge
II. 13
Regardless of any theory of liability based on Cpl Harris being asleep, the
elements of sexual assault by causing bodily harm only require that we be
convinced beyond a reasonable doubt that Cpl Harris did not consent to the
sexual act at issue. At trial, the Government’s theory of liability as to Specifi-
cation 1 of Charge II included both a general lack of consent and a lack of
informed consent, in that Appellant committed a sexual act upon Cpl Harris
without informing him of his HIV status. 14 Of course, we do not know with
precision on which lack-of-consent theory the members convicted, as the
panel properly returned a general verdict without specifying the particular
theory of liability on which the conviction was based. See United States v.
Brown, 65 M.J. 356, 359 (C.A.A.F. 2007) (citation omitted). Nevertheless, so
long as the evidence supports one of the potential theories of liability beyond
a reasonable doubt, a conviction will stand, even where the panel itself may
not agree on a single means of commission. Id. (citing Schad v. Arizona, 501
U.S. 624, 631 (1991) (plurality opinion)).
Regardless of which theory the members may have used to convict, we are
convinced beyond a reasonable doubt that Appellant committed the sexual
act without Cpl Harris’s consent. Cpl Harris gave compelling testimony that
he woke up on the morning of the sexual act to find his jeans around his
ankles, and his penis in Appellant’s mouth. He immediately expressed his
shock and left the premises. He later reported the incident as a sexual as-
sault, and testified that following the incident he began to abuse alcohol in an
effort to cope with the experience. Given Cpl Harris’ testimony, and the
generally corroborative evidence presented at trial, we are convinced that the
sexual act was nonconsensual. We are equally convinced that Appellant
committed the sexual act without Cpl Harris’s consent based on Appellant’s
failure to inform Cpl Harris of his HIV status prior to commission of the
sexual act, after Appellant had been made aware that he was HIV-positive
and was advised to inform prospective sexual partners of his HIV status.
13 Even if a genuine inconsistency existed, it would provide no relief. United
States v. Powell, 469 U.S. 57, 63-68 (1984) (in part because inconsistent verdicts may
be the result of lenity, and the fact that the Government is unable to invoke review,
inconsistent verdicts are not generally reviewable); see also United States v.
Hutchins, 78 M.J. 437, 445 (C.A.A.F. 2019) (inconsistent verdicts prevent the identi-
fication of any issue of ultimate fact, and thus deprive acquittals of any preclusive
effect).
14 R. at 974; App. Ex. XVII at 22.
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Opinion of the Court
Thus, for the reasons discussed above, Appellant’s commission of the sexual
act was “an offensive touching to which [Cpl Harris] did not provide meaning-
ful informed consent.” Gutierrez, 74 M.J. at 68; Forbes, 79 M.J. at 281 (“[I]t is
the failure to inform the victim[ ] of the HIV-positive status that vitiates
meaningful consent and causes the touching to be offensive.”) Appellant’s
conduct therefore satisfies each element of Article 120(b)(1)(B), UCMJ. 15
Considering the evidence in a light most favorable to the Prosecution, we
conclude that a reasonable fact-finder could have found all the essential
elements beyond a reasonable doubt. The evidence is thus legally sufficient to
support the conviction. Regarding factual sufficiency, after weighing the
evidence in the record of trial and making allowances for not having person-
ally observed the witnesses, we are convinced of Appellant’s guilt beyond a
reasonable doubt.
C. Legal and Factual Sufficiency for Indecent Viewing
Appellant was convicted of indecent viewing of the private area of
Cpl Harris without his consent while he was in his own shower. In order to
prove the act of unlawfully viewing a private area of another, the Govern-
ment was required to prove that Appellant (1) knowingly and wrongfully
viewed the private area of Cpl Harris, (2) that such viewing occurred without
15 We have considered whether the mere possibility that the members convicted
based on a “failure to inform” theory renders Specification 1 of Charge II multi-
plicious or unreasonably multiplied vis-à-vis the assault consummated by a battery
specification under Charge IV. See generally United States v. Quiroz, 55 M.J. 334
(C.A.A.F. 2001) (explaining the distinct doctrines of multiplicity and unreasonable
multiplication of charges). We conclude it does not. First, the Charge IV specification
directly charged Appellant with failing to inform Mr. Harris of his HIV status and
thus facially requires proof of an element that the other specification, charging
Appellant with committing a nonconsensual sexual act, does not; hence, the specifica-
tions are not multiplicious. See United States v. Armstrong, 77 M.J. 465, 469-70
(C.A.A.F. 2018) (explaining two tests for assessing multiplicity, the first based both
on the statutory elements, and the second based on the elements as charged). Second,
we agree with the trial judge’s conclusion that the Quiroz factors weigh against
finding an unreasonable multiplication of charges in this instance, given our conclu-
sion that the evidence supports a lack of consent for the sexual act that is distinctly
separate from Appellant’s non-disclosure of his HIV status. See generally United
States v. Rodriguez, 66 M.J. 201, 204 (C.A.A.F. 2008) (explaining the “longstanding
common law rule” on general verdicts that a verdict attaches to all theories charged);
Brown, 65 M.J. at 359 (“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.”).
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Opinion of the Court
the consent of Cpl Harris, and (3) under circumstances in which Cpl Harris
had a reasonable expectation of privacy. UCMJ art. 120c(a)(1). “Private area”
is defined as including the “naked or underwear-clad genitalia, anus, [and]
buttocks.” UCMJ art. 120c(d)(2). A “reasonable expectation of privacy” means
under “circumstances in which a reasonable person would believe that a
private area of the person would not be visible to the public.” UCMJ art.
120c(d)(3)(B).
Appellant challenges the legal and factual sufficiency of his conviction,
arguing that the only evidence presented at trial by the Government to prove
its case was the testimony of Cpl Harris. On the evening in question,
Cpl Harris had departed the company of Appellant and others in order to
return to his barracks room to shower. Cpl Harris’s shower was inside his
bathroom, which had a door, and the bathroom, in turn, was inside his
barracks room. His barracks room was separated from the hallway by a door.
Appellant entered Cpl Harris’s barracks room uninvited, then entered the
bathroom, and upon entering the bathroom, he acted to open the shower
curtain, on the other side of which was Cpl Harris, who was then naked and
showering. Appellant’s actions of knowingly and wrongfully entering
Cpl Harris’s barrack’s room, his bathroom, and then opening the shower
curtain and viewing Cpl Harris all happened without the permission or
consent of Cpl Harris.
Cpl Harris testified that when Appellant pulled back the shower curtain,
he could see Appellant’s body; that Appellant was in a position to see his
(Cpl Harris’) body, including his exposed private area (specifically, his naked
buttocks); and that it was possible Appellant saw his buttocks. Cpl Harris did
not invite Appellant to enter his barracks room, nor his bathroom, nor to pull
the shower curtain back and view his unclothed buttocks. We find that
Appellant did so, and further find that Cpl Harris had a reasonable expecta-
tion of privacy in his own shower, which was located inside his own private
residence. Consequently, the evidence in the record satisfies each element of
Article 120c(a)(1), UCMJ.
Considering the evidence in a light most favorable to the Prosecution, we
conclude that a reasonable fact-finder could have found all the essential
elements beyond a reasonable doubt. The evidence is thus legally sufficient to
support the conviction. Regarding factual sufficiency, after weighing the
evidence in the record of trial and making allowances for not having person-
ally observed the witnesses, we are convinced of Appellant’s guilt beyond a
reasonable doubt.
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Opinion of the Court
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel,
we have determined that the approved findings and sentence are correct in
law and fact and that no error materially prejudicial to Appellant’s substan-
tial rights occurred. UCMJ arts. 59, 66. The findings and sentence as ap-
proved by the convening authority are AFFIRMED.
Senior Judge GASTON and Judge STEWART concur.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
12