This opinion is subject to administrative correction before final disposition.
Before
GASTON, STEWART, and HOUTZ
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Ray D. BRAIMER
Chief Intelligence Specialist (E-7), U.S. Navy
Appellant
No. 201900271
Decided: 29 March 2021
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges:
Derek D. Butler (arraignment)
Hayes C. Larsen (motions and trial)
Sentence adjudged 18 April 2019 by a general court-martial convened
at Naval Station Norfolk, Virginia, consisting of officer and enlisted
members. Sentence approved by the convening authority: reduction to
E-1, confinement for two years, and a dishonorable discharge.
For Appellant:
Lieutenant Commander Christopher K. Reidel, JAGC, USN
For Appellee:
Lieutenant Gregory A. Rustico, JAGC, USN
Lieutenant Joshua C. Fiveson, JAGC, USN
Senior Judge GASTON delivered the opinion of the Court, in which
Judges STEWART and HOUTZ joined.
United States v. Braimer, NMCCA No. 201900271
Opinion of the Court
_________________________
PUBLISHED OPINION OF THE COURT
_________________________
GASTON, Senior Judge:
Appellant was convicted, contrary to his pleas, of attempted abusive sex-
ual contact, sexual harassment, sexual assault, and abusive sexual contact,
in violation of Articles 80, 92, and 120, Uniform Code of Military Justice
[UCMJ], 10 U.S.C. §§ 880, 892, 920 (2012), in connection with incidents
during two port calls while he was serving aboard USS Donald Cooke (DDG
66).
He asserts 12 assignments of error [AOEs], which we renumber as fol-
lows: (1) the military judge erred when he refused to allow Appellant’s trial
defense counsel to cross-examine one of the victims with a specific instance of
untruthfulness; (2) the military judge erred in denying a Defense request for
a mistake-of-fact instruction for the charge of attempted abusive sexual
contact; (3) the trial counsel committed prosecutorial misconduct when he
improperly referred to suppressed evidence and during rebuttal argument
characterized Appellant’s trial defense counsel’s cross-examination as “shov-
ing words into someone’s mouth” and vouched for his co-counsel; (4) the
evidence is legally and factually insufficient to support Appellant’s convic-
tions for abusive sexual contact, as well as (5) sexual harassment and
(6) attempted abusive sexual contact; (7) Appellant’s discovery rights were
violated when the Government failed to disclose fingerprint evidence support-
ing Appellant’s description of events; (8) Appellant was improperly denied his
statutory right to counsel of his choice; 1 (9) Appellant’s trial defense counsel
were ineffective in failing to obtain and present at trial any prosecutorial
merits memorandum memorializing the Irish Government’s reasons for
declining to prosecute Appellant; (10) the Government improperly failed to
turn over the actual physical evidence to the Defense; (11) the evidence is
legally and factually insufficient to support Appellant’s conviction for all of
1 We have considered this AOE, submitted pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), and deny it pursuant to United States v.
Cooper, 78 M.J. 283 (C.A.A.F. 2019). United States v. Matias, 25 M.J. 356, 363
(C.M.A. 1987).
2
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Opinion of the Court
the charges; and (12) the cumulative errors at trial substantially impaired
the fairness of Appellant’s trial. 2
We find merit in Appellant’s fifth AOE and set aside his conviction for
sexual harassment in violation of Article 92, UCMJ. We affirm the remaining
findings and, upon reassessment, affirm the sentence.
I. BACKGROUND
While their ship, the Donald Cooke, was making a port visit in Souda
Bay, Greece, Appellant sat down next to Gunner’s Mate Second Class [GM2]
(E-5) Allen 3 on a liberty bus that was returning to the ship around midnight.
During the bus ride, he placed his hand on GM2 Allen’s leg and rubbed her
knee and upper thigh for around 30 seconds. When she moved her leg away,
he leaned in close to her, took a deep breath, asked if she was wearing per-
fume, and told her she smelled good. GM2 Allen did not tell Appellant she
objected to his conduct, but she sent contemporaneous text messages to a
friend stating that what he was doing made her feel “awkward and uncom-
fortable.” 4 When the bus got back to the ship, she appeared “freaked out”
about what happened. 5 A couple of days later she reported Appellant’s
conduct to the chain of command and spoke to Chief Master-at-Arms [MAC]
(E-7) Wilson, whom she told she was not sure whether the touching of her
knee had been intentional, but that it had made her uncomfortable.
Two months later, when the ship made a port visit to Cork, Ireland, Ap-
pellant met and talked with Culinary Specialist Third Class [CS3] (E-4)
Sierra and CS3 Warren while riding a local bus to Dublin. When they
reached Dublin, although CS3 Sierra and CS3 Warren had already booked a
hotel room, they decided to go with Appellant and his liberty buddy to find a
hotel, where they got rooms on different floors. After they checked in, CS3
Sierra and CS3 Warren met Appellant in the hotel bar and drank a round of
tequila shots that he bought for them, before they went out to a nightclub on
their own. When the two women returned later that night, they saw Appel-
2 We have considered Appellant’s ninth, tenth, eleventh, and twelfth AOEs, sub-
mitted pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find
them without merit. United States v. Matias, 25 M.J. 356, 363 (C.M.A. 1987).
3 All names in this opinion, other than those of Appellant, the judges, and coun-
sel, are pseudonyms.
4 Pros. Ex. 1.
5 R. at 732.
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Opinion of the Court
lant at another bar in the hotel and sat down with him again. The three of
them talked and laughed for a couple of hours while consuming several
rounds of alcohol. At CS3 Sierra’s suggestion, they started playing a drinking
game, “Never Have I Ever,” which devolved into discussing sexually-charged
subjects.
As the night wore on, Appellant started becoming more “touchy-feely”
with both women, particularly CS3 Sierra, who was not receptive to his
advances. When CS3 Warren left to go to the bathroom, Appellant grabbed
CS3 Sierra’s hand and then gave her a hug, both of which she politely pulled
away from. He told her how beautiful she was and asked her to come back to
his room with him, saying he hated the Navy’s fraternization policy because
it prevented him from being with any woman he found attractive because of
pay grade. He showed her his midsection and pulled her hand toward it, and
tried to put his hand on her midsection when she did the same. She rejected
these advances. After the three left the bar around 0330 to go up to Appel-
lant’s room to get an electrical adapter for CS3 Sierra’s cell phone, Appellant
put his hands on CS3 Sierra’s hips when they reached the elevators. She
pulled away from him.
When the group arrived at Appellant’s room, CS3 Warren and CS3 Sierra
lay down on his bed while he used the bathroom. They talked to Appellant
about the differences between his hotel room and its bathroom and theirs.
CS3 Sierra then fell asleep on his bed, at which point CS3 Warren and
Appellant went back downstairs to continue drinking.
When they got back to the hotel bar, Appellant started making advances
toward CS3 Warren, at various points touching her hand, hugging her, and
kissing her cheek. She let him hold her hand for a period of time and hugged
him back for a while, but felt awkward about what was happening. When he
propositioned her for sex, she told him he “was a risk that [she] wouldn’t take
professionally or personally.” 6 By the time they left the bar a little after 0400,
Appellant was so intoxicated he was stumbling and could barely keep his
eyes open.
The two returned to Appellant’s room and got CS3 Sierra out of Appel-
lant’s bed, and then Appellant accompanied them to CS3 Sierra and
CS3 Warren’s room, ostensibly to see the differences they had discussed
between his room and theirs. When they got there, Appellant went into the
bathroom while CS3 Sierra got into her bed and fell asleep. Appellant then
6 R. at 1158.
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Opinion of the Court
sat down in a chair at the foot of CS3 Sierra’s bed, and CS3 Warren then
turned out the lights and got in her own bed. After a while, Appellant got up,
took off his pants and shirt, got on top of CS3 Sierra in her bed, and started
kissing her neck and telling her to come to his room. CS3 Sierra woke up,
pushed his face away as he continued to try to kiss her, and then nodded off
again.
At that point, CS3 Warren turned the lights on and told Appellant to get
off of CS3 Sierra, put his clothes on, and leave. He started gathering his
things and told her the lights were too bright. When CS3 Warren turned the
lights off again, he went over to CS3 Warren’s bed, pulled the covers off her,
and started pulling down her leggings as she tried to keep them up and told
him to stop. He succeeded in pulling down her leggings and underwear, got
on top of her, and put his penis in her vagina, kissing her, and putting his
tongue down her throat as she was telling him “no” and trying to push him
off. As she tried to get away, she fell off the bed and onto her stomach on the
floor, where Appellant got on top of her and started pressing his penis
against her anus, at which point her protestations became louder.
CS3 Sierra awoke to the sound of CS3 Warren crying and saying “no” and
“stop.” She saw Appellant on top of CS3 Warren on the floor beside her bed,
yelled at Appellant to get off of her, and smacked him in the head several
times until he did so. She accused him of raping CS3 Warren, which he
denied. She then yelled at him repeatedly to “get out” (loudly enough for
other hotel guests in nearby rooms to hear) until he left the room. After-
wards, CS3 Warren was crying on the floor and did not want to be touched.
She called her godmother, but was crying so much she was unable to verbal-
ize what had just happened. After she hung up, she reported what happened
to CS3 Sierra, who called the ship and reported that CS3 Warren had been
raped.
The Irish police, or “Garda,” were notified and responded to the hotel
room, where they found CS3 Warren looking “upset,” “distressed,” and
“confused.” 7 The Garda collected physical evidence from the hotel room,
including fingerprint evidence from the bathroom, and video footage from the
hotel security cameras, which captured the parties’ interactions in the hotel
bar and at the elevators. CS3 Warren underwent a Sexual Assault Nurse
Examination [SANE], which found no injuries but collected DNA evidence.
Subsequent forensic analysis revealed that male DNA found in CS3 Warren’s
vaginal area was a statistical match for Appellant’s DNA.
7 R. at 741.
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Opinion of the Court
When interviewed by the Garda, Appellant waived his rights and said he
had consensual sex with CS3 Warren. He said CS3 Sierra and CS3 Warren
were being flirtatious and making sexual insinuations at the hotel bar. He
denied flirting or making any sexually-charged comments himself. He said he
had agreed to escort the women safely from the bar back to their room at
their request. He said CS3 Sierra went straight to bed and fell asleep when
they got to their room, and he denied climbing into her bed, touching her, or
saying anything to her. He said that as he was leaving, CS3 Warren sponta-
neously started kissing him, pulled down his pants, gave him oral sex, and
then pulled him down on top of her on the floor, where they had consensual
sex. He said that CS3 Sierra woke up to the noise they were making during
sex and that when she asked what was going on, both he and CS3 Warren
denied he was raping her. He said CS3 Sierra nevertheless told him she was
going to report him for rape.
After the investigation was complete, the Irish Department of Public
Prosecutions reviewed the case and declined to prosecute. The Garda investi-
gative file and evidence were turned over to U.S. authorities and made
available to the Defense in discovery in connection with Appellant’s court-
martial. The Defense moved for production of any writing memorializing the
Irish government’s decision not to prosecute, which the military judge denied,
finding among other things that, to the extent such a writing existed, the
Garda investigative file was an adequate substitute for any information
contained therein.
At arraignment, when advised of his counsel rights, including his right to
request individual military counsel [IMC], Appellant and his detailed mili-
tary defense counsel discussed with the military judge Appellant’s intent to
request IMC. 8 Appellant subsequently submitted an IMC request, which was
denied by the Navy’s Chief of Staff, Defense Service Offices, who determined
the requested counsel was not reasonably available. When re-advised of his
counsel rights just prior to his contested trial, Appellant was represented by
three military defense counsel and a civilian defense counsel [CDC], and
informed the military judge he did not wish to be represented by any counsel
other than those four.
8 R. at 7-10.
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Opinion of the Court
II. DISCUSSION
A. Curtailment of the Cross-Examination of CS3 Warren
After the assault, CS3 Warren told the SANE nurse she had not been
sexually active for ten months prior to the assault. Forensic analysis of the
DNA samples taken from CS3 Warren’s vaginal area revealed, in addition to
Appellant’s DNA, trace amounts of non-sperm, male DNA not belonging to
Appellant. An expert opined that this evidence was consistent with, but not
conclusive proof of, sexual activity with another male in the days leading up
to the examination. The Defense moved under Military Rules of Evidence 412
and 608 for a pretrial ruling allowing it to cross-examine CS3 Warren with
this evidence to impeach her credibility, arguing it proved she lied to the
SANE nurse about her prior sexual activity. After a hearing, the military
judge denied the motion in a written ruling.
Appellant asserts the military judge erred in refusing to allow the De-
fense to cross-examine CS3 Warren on her statement to the SANE nurse
about her sexual history as a specific instance of untruthfulness, arguing it
reflected her intent to obscure the truth from investigators. We review
rulings to admit or exclude evidence for an abuse of discretion. United States
v. Solomon, 72 M.J. 176, 179 (C.A.A.F. 2013). “The abuse of discretion stand-
ard 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.” United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F. 2010) (citation
and internal quotation marks omitted).
Evidence offered to prove an alleged victim engaged in other sexual be-
havior is, with limited exceptions, generally not admissible at a trial involv-
ing a sexual offense. Mil. R. Evid. 412(b). If after a hearing the military judge
determines that the evidence falls within an exception to this rule and the
probative value of the evidence outweighs the danger of unfair prejudice to
the alleged victim’s privacy, the evidence is admissible subject to any param-
eters specified by the military judge and the Military Rule of Evidence 403
balancing test. Mil. R. Evid. 412(c). One of the rule’s exceptions is for “evi-
dence the exclusion of which would violate the constitutional rights of the
accused.” Mil. R. Evid. 412(b)(1)(C). Such evidence, provided it passes the
Military Rule of Evidence 403 balancing test, is admissible if relevant,
material, and favorable (i.e., “vital”) to the Defense, no matter how embar-
rassing it may be to the alleged victim. United States v. Banker, 60 M.J. 216,
222-23 (2004), abrogated by United States v. Gaddis, 70 M.J. 248, 256
(C.A.A.F. 2011).
The exception for constitutionally required evidence encompasses an ac-
cused’s Sixth Amendment right to confront and cross-examine the witnesses
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Opinion of the Court
against him, which includes the right “to impeach, i.e., discredit the witness.”
United States v. Ellerbrock, 70 M.J. 314, 318 (C.A.A.F. 2011) (quoting Olden
v. Kentucky, 488 U.S. 227, 231 (1988)). However, this right does not extend to
“cross-examination that is effective in whatever way, and to whatever extent,
the defense might wish.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
Trial judges retain “wide latitude insofar as the Confrontation Clause is
concerned to impose reasonable limits on such cross-examination based on
concerns about, among other things, harassment, prejudice, confusion of the
issues, the witness’ safety, or interrogation that is repetitive or only margin-
ally relevant.” Id. Thus, an accused does not have “a right to cross-examine a
witness on any subject solely because he describes it as one of credibility,
truthfulness, or bias. . . . [Rather,] the right to cross-examine is the right to
question where the proffer establishes a real and direct nexus to a fact or
issue at hand.” United States v. Sullivan, 70 M.J. 110, 115 (C.A.A.F. 2011).
Here, the issue involves a specific instance of conduct as it relates to a
witness’ character for truthfulness. Military Rule of Evidence 608(b) gives the
trial judge discretion in this area: “the military judge may, on cross-
examination, allow [such instances] to be inquired into if they are probative
of the character for truthfulness or untruthfulness” of the witness. Mil. R.
Evid. 608(b) (emphasis added). However, in order to conduct such inquiry,
“(1) there must be a good-faith belief by the [proponent of the evidence] that
the conduct occurred; and (2) the conduct must relate to instances of untruth-
fulness.” United States v. Robertson, 39 M.J. 211, 214 (C.A.A.F. 1994). And
even where those criteria are met, the trial court may “exercise discretion
and exclude the testimony altogether, depending on the importance or lack of
importance of the testimony, the age of the conduct, the relationship of the
misconduct to truthfulness or untruthfulness, whether the matter would lead
to a time-consuming and distracting explanation on cross-examination or
recross-examination and undue prejudice.” Id. at 215.
While the trial judge has discretion in regard to cross-examination, the
rule provides no discretion as it relates to extrinsic evidence, which “is not
admissible to prove specific instances of a witness’ conduct in order to attack
or support the witness’ character for truthfulness.” Mil. R. Evid. 608(b). The
doctrine of “impeachment by contradiction,” does allow “showing the tribunal
the contrary of a witness’ asserted fact [on a collateral matter], so as to raise
an inference of general defective trustworthiness.” United States v. Banker,
15 M.J. 207, 210 (C.M.A. 1983). However, extrinsic evidence for this type of
impeachment is only admissible if the collateral matter was raised during the
witness’ direct examination. Id.
In this case, the military judge excluded the evidence at issue because he
determined the falsity of CS3 Warren’s statement was not established by the
8
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Opinion of the Court
DNA evidence alone and involved “multiple ambiguous theories of how that
DNA was transferred to her cervix.” 9 Citing United States v. Erikson, 76 M.J.
231, 234 (C.A.A.F. 2017), and United States v. McElhaney, 54 M.J. 120, 130
(C.A.A.F. 2000), he found that in order for a specific instance of untruthful-
ness to be inquired into, the statement at issue must be shown to be untruth-
ful, else the conduct is not probative of the witness’s truthfulness or untruth-
fulness. Because the Defense had failed to show that CS3 Warren’s statement
about her sexual history was in fact false, he determined the evidence’s
probative value as to CS3 Warren’s truthfulness was low and was substan-
tially outweighed by the danger of unfair prejudice and the risk of creating a
distracting and time-consuming trial within a trial to determine whether CS3
Warren had indeed been untruthful in her statement to the SANE nurse.
We find the military judge’s conclusions reasonable, his weighing of the
competing factors thorough, and his analysis supported by the record. As the
trace DNA evidence did not establish that CS3 Warren had in fact intention-
ally lied to the SANE nurse, the Defense did not show that her conduct
“relate[d] to [an] instance[ ] of untruthfulness.” Robertson, 39 M.J. at 214
(emphasis added). Moreover, even if the military judge had in his discretion
allowed Appellant to cross-examine CS3 Warren about this purported in-
stance of untruthfulness, Military Rule of Evidence 608(b) would have pre-
cluded any attempt to prove her statement was actually untruthful through
extrinsic evidence, such as the testimony of a DNA expert. Nor was there
foundation for introducing such extrinsic evidence through impeachment by
contradiction, because the Defense sought to raise the issue during its cross-
examination of CS3 Warren, whereas the law allows extrinsic evidence to be
used for such impeachment only where the collateral matter10 is raised on
direct. Accordingly, we find no abuse of discretion by the military judge in
excluding this evidence.
B. Mistake-of-Fact Instruction
Appellant asserts the military judge erred in denying a Defense request
for a mistake-of-fact-as-to-consent instruction for the charge of attempted
abusive sexual contact upon CS3 Sierra. We review the propriety of instruc-
9 App. Ex. XCIX at 7.
10 The issue of whether CS3 Warren actually engaged in prior sexual activity
with some other unidentified male was a collateral matter, as there was no dispute at
trial that sexual intercourse had occurred between Appellant and CS3 Warren; the
issue was one of consent.
9
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Opinion of the Court
tions given by the trial court de novo. United States v. Quintanilla, 56 M.J.
37, 83 (C.A.A.F. 2001).
A trial court must instruct on the elements of the offenses and any af-
firmative, or “special,” defenses under Rule for Courts-Martial [R.C.M.] 916
that are “in issue.” R.C.M. 920(e). “A matter is ‘in issue’ when some evidence,
without regard to its source or credibility, has been admitted upon which
members might rely if they choose.” R.C.M. 920(e) Discussion. “If an issue
has been raised, ordinarily the military judge must instruct on the issue
when requested to do so.” R.C.M. 920(c) Discussion. Even if not requested,
the trial judge has a sua sponte duty to instruct on any defenses reasonably
raised by the evidence. R.C.M. 920(e); United States v. Barnes, 39 M.J. 230,
232-33 (C.A.A.F. 1994). “A defense may be raised by the defense, the prosecu-
tion, or the court-martial. . . . More than one defense may be raised as to a
particular offense. The defenses need not necessarily be consistent.” R.C.M.
916(b) Discussion; see also United States v. Simmons, 38 M.J. 376, 383
(C.A.A.F. 1993) (stating that alternative defenses are not prohibited at
courts-martial). “Any doubt whether an instruction should be given should be
resolved in favor of the accused.” United States v. Hibbard, 58 M.J. 71, 73
(C.A.A.F. 2003) (citations and internal quotation marks omitted).
Mistake of fact as to consent is an affirmative defense to the charge of at-
tempted abusive sexual contact. R.C.M. 916(j)(1). This defense provides that
“it is a defense to an offense that the accused held, as a result of ignorance or
mistake, an incorrect belief of the true circumstances such that, if the cir-
cumstances were as the accused believed them, the accused would not be
guilty of the offense.” Id. Because the offense of attempt requires the specific
intent to commit the object offense, the mistake of fact need only be honest,
not reasonable—i.e., “the ignorance or mistake need only have existed in the
mind of the accused.” Id.
In assessing whether this defense was in issue, “we take into account the
manner in which the issue was litigated as well as the material introduced
into evidence at trial.” Hibbard, 58 M.J. at 76. “The defense theory at trial
and the nature of the evidence presented by the defense are factors that may
be considered in determining whether the accused is entitled to a mistake of
fact instruction, but neither factor is dispositive.” Id. at 73 (citations omitted).
Nor must an accused testify in order for a mistake-of-fact instruction to be
given. United States v. Jones, 49 M.J. 85, 91 (C.A.A.F. 1998). “Although it is
not necessary to present evidence of a mistake of fact in the defense case on
the merits or to discuss such evidence in closing argument in order to obtain
an instruction in a proper case, it is appropriate for an appellate court to take
into account the absence of such a presentation in assessing the significance
of the evidence.” Hibbard, 58 M.J. at 76.
10
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Opinion of the Court
Appellant asserts here, as at trial, that the defense of mistake of fact as to
consent was raised by the testimony of CS3 Sierra, who stated that she “woke
up to [Appellant] on top of [her], kissing [her] neck and telling [her] that he
wanted [her] to come to his room with him.” 11 Appellant argues this testi-
mony supports that he believed CS3 Sierra was both awake and consenting to
his conduct, else he would not have been speaking to her and trying to get her
to accompany him back to his room.
In denying the requested instruction, the military judge correctly identi-
fied that with respect to defenses “the standard is not what the accused says,
the standard is whether it has been reasonably raised by the evidence.” 12 He
found the evidence pointed to by the Defense insufficient to raise the issue of
mistake of fact because the Defense theory as articulated to the members was
not based on Appellant’s mistake of fact as to consent, but rather, consistent
with Appellant’s statement to the Irish Garda, was to deny that the conduct
CS3 Sierra testified to ever occurred. 13
We concur with the military judge’s conclusion that the defense of mis-
take of fact as to consent was not reasonably raised for this offense. The
evidence for this charge supported that CS3 Sierra was asleep at the time
Appellant took off his clothes and got on top of her in her bed, uninvited, and
started trying to kiss her and convince her to come back to his room. The
simple fact that some evidence suggested that an inebriated Appellant was
actively speaking to CS3 Sierra while he was on top of her does not render
the defense of mistake of fact as to consent “reasonably raised.” This is
particularly true when considering the ample evidence of CS3 Sierra’s
demonstrated lack of interest in Appellant’s advances throughout the night.
Earlier interactions with Appellant at the hotel bar and elevators—which
were caught on video by the hotel cameras—gave no indication that she was
interested in his advances, such that he would have been honestly mistaken
about her consent when he later crawled into the bed in which she lay asleep.
Nor did the way the Defense litigated the case tend to reasonably raise a
defense of mistake of fact as to consent. The Defense case was focused entire-
ly on showing, as it maintained in its opening statement, that in reconciling
11 R. at 962.
12 R. at 1638.
13 R. at 1639-40. The military judge did, however, agree to instruct on the defense
of voluntary intoxication in relation to whether Appellant had the specific intent to
commit the object offense of abusive sexual contact.
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Opinion of the Court
the objective evidence with the competing accounts of what happened and
applying common sense, “the only reasonable explanation is . . . the one that
[Appellant gave to the Irish Garda],” 14 in which Appellant denied getting in
bed with CS3 Sierra, hitting on her, or touching her. While not dispositive per
se, we find significant the Defense’s laser focus on disproving the acts in
question ever happened, including its presentation of evidence to undermine
the general credibility of CS3 Sierra, as opposed to challenging that Appel-
lant had the requisite specific intent. Although we recognize that alternative,
inconsistent defenses may be raised for the same offense, the record before us
does not support that conclusion in this case.
C. Prosecutorial Misconduct
Appellant asserts the trial counsel committed prosecutorial misconduct
when he improperly referred to suppressed evidence and when during his
rebuttal argument he characterized Appellant’s trial defense counsel’s cross-
examination of Government witnesses as “shoving words into someone’s
mouth” and later vouched for his co-counsel. We review prosecutorial miscon-
duct and improper argument de novo. United States v. Sewell, 76 M.J. 14, 18
(C.A.A.F. 2017). Where a proper objection was made, we review for prejudi-
cial error. United States v. Andrews, 77 M.J. 393, 398 (C.A.A.F. 2018).
Prosecutorial misconduct occurs when a prosecutor “oversteps the bounds
of that propriety and fairness which should characterize the conduct of such
an officer in the prosecution of a criminal offense.” United States v. Fletcher,
62 M.J. 175, 178 (C.A.A.F. 2005) (quoting Berger v. United States, 295 U.S.
78, 84 (1935)). In general, such misconduct is “action or inaction by a prosecu-
tor in violation of some legal norm or standard, e.g., a constitutional provi-
sion, a statute, a Manual rule, or an applicable professional ethics canon.”
United States v. Meek, 44 M.J. 1, 5 (C.A.A.F. 1996) (citing Berger, 295 U.S. at
88). To assess the prejudicial impact of prosecutorial misconduct on a trial,
we look at three factors: “(1) the severity of the misconduct, (2) the measures
adopted to cure the misconduct, and (3) the weight of the evidence supporting
the conviction.” Fletcher, 62 M.J. at 184. Indicators of severity include the
number, timing, and frequency of the occurrences, in comparison with the
length of the trial and the panel’s deliberations, and whether counsel abided
by any rulings by the trial judge. Id. “[R]eversal is warranted only when the
trial counsel’s comments, taken as a whole, were so damaging that we cannot
14 R. at 663 (emphasis added).
12
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be confident that the members convicted the appellant on the basis of the
evidence alone.” Sewell, 76 M.J. at 18.
Here, after receiving GM2 Allen’s complaint about Appellant’s conduct on
the liberty bus, MAC Wilson spoke to Appellant about what happened with-
out first advising him of his rights under Article 31(b), UCMJ, and the
military judge granted a Defense motion to suppress Appellant’s statements
to MAC Wilson on that basis. During trial, when the Defense called
MAC Wilson to impeach the testimony of GM2 Allen, he began to offer non-
responsive testimony regarding his interview of Appellant. The military
judge intervened sua sponte and stopped MAC Wilson from further testifying
about this conversation. The trial counsel then asked MAC Wilson during
cross-examination whether, after speaking with GM2 Allen, he had “ap-
proached the accused and talked to him,” to which MAC Wilson answered,
“Yes, sir.” 15 The military judge again interrupted sua sponte and called an
Article 39(a), UCMJ, session to address whether the trial counsel intended to
elicit testimony about the contents of the suppressed statement. The trial
counsel stated he did not and that his intent was only to establish a timeline
to show that MAC Wilson’s testimony was potentially biased in favor of
Appellant. The trial counsel then withdrew his question, and the military
judge sustained a Defense objection to any further testimony about the
interview.
Later, during his rebuttal argument, in reference to the Defense’s cross-
examination of Government witnesses, the assistant trial counsel argued that
“[t]hey [were] trying to put words in someone’s mouth.” 16 He subsequently
commented, during the same argument,
The defense counsel then suggests that the Government pre-
sentation of evidence is, one, to hide evidence it doesn’t like,
and then two, that [his co-counsel], a sworn officer of the court,
would purposely coach and suborn perjury from a witness or
try to elicit testimony he doesn’t believe, abandoning his ethical
duties. 17
15 R. at 1533-34.
16 R. at 1809.
17 R. at 1821.
13
United States v. Braimer, NMCCA No. 201900271
Opinion of the Court
The Defense objected, “[T]hat is not what was argued,” and the military judge
instructed the trial counsel to “move on.” 18
At the conclusion of the rebuttal argument, Appellant’s CDC told the mili-
tary judge, “[W]e didn’t object during trial counsel’s rebuttal, but there were
comments on [Appellant’s] right to put on a defense, right to cross-examine
witnesses, and burden shifting. We just want to make sure that is reflected in
the instructions.” 19 The military judge proposed to handle the issues by re-
instructing members on the burden of proof, to which CDC stated, “I think an
instruction would be fair, Your Honor.” 20 The military judge then instructed
the members as follows:
First, I want to remind you, as I discussed yesterday, that
[the Accused] is presumed innocent until his guilt is estab-
lished by legal and competent evidence beyond a reasonable
doubt. Second, as I mentioned yesterday, if there is a reasona-
ble doubt of [the Accused], that doubt must be resolved in his
favor, he must be acquitted. Lastly, the burden of proof to es-
tablish the guilt of the Accused beyond a reasonable doubt is on
the Government. The burden never shifts to the Aaccused to
establish his innocence or to disprove the facts necessary to es-
tablish each element of the offense.
The Accused, through counsel, has a constitutional right to
confront the witnesses called against him. Often this is called
cross-examination. That is an entirely appropriate and accept-
ed method of confronting the witnesses called against someone.
Also, I remind you that closing statements from counsel are
not evidence. Their closing statements are simply a commen-
tary on the evidence as they see it. If you believe that you
heard trial counsel was vouching for the credibility of or believ-
ability of any witnesses, you must disregard that opinion as the
final determination of the credibility of the witnesses rests sole-
ly with you. Closing arguments and rebuttal by the Govern-
ment may properly include reasonable comments on the evi-
dence in the case, including reference to be drawn therefrom in
support of a parties’ theory of the case. The Government coun-
18 Id.
19 R. at 1827.
20 Id.
14
United States v. Braimer, NMCCA No. 201900271
Opinion of the Court
sel may comment about the testimony, conduct, motives, inter-
ests and biases of witnesses to the extent that is supported by
the evidence. It is your ultimate responsibility, however, to de-
termine what the facts are. It is your responsibility to deter-
mine what the facts are, apply those facts to the law as I have
instructed you and then it is your ultimate responsibility,
which you will participate in in a moment, to determine wheth-
er [Appellant] is guilty or not guilty based solely upon the evi-
dence that is presented before the Court. 21
We find no prejudicial error in this case, due in large part to the proactive
efforts by the military judge. To the extent the actions complained of consti-
tute misconduct, it was not severe, as it consisted only of a single question to
a Defense witness, which was subsequently withdrawn, and two isolated
remarks during the Government’s rebuttal argument in the context of a
lengthy, contested general court-martial. We agree that it is impermissible
for a trial counsel to vouch for his co-counsel, as “the prosecutor’s opinion
carries with it the imprimatur of the Government and may induce the jury to
trust the Government’s judgment rather that its own view of the evidence.”
United States v. Voorhees, 79 M.J. 5, 12 (2019) (quoting United States v.
Young, 470 U.S. 1, 18-19 (1985)). Prosecutors must also take care not to
malign the defense counsel’s advocacy on behalf of an accused, which may
cause the members to decide the case “based on which lawyer they like
better,” rather than “solely on the basis of the evidence presented, as is
required.” Fletcher, 62. M.J. at 181 (citing Young, 470 U.S. at 18).
However, for each of these occurrences, the military judge took decisive
action to address and remedy the issue. He intervened during the testimony
of MAC Wilson and stopped a potentially impermissible line of questioning
before it even began, and he addressed the improper rebuttal comments
through appropriately tailored instructions, which we presume absent con-
trary indications that the panel followed. United States v. Short, 77 M.J. 148,
151 (C.A.A.F. 2018) (citation omitted). As we have previously cautioned,
“military judges must be quick to act sua sponte to stop improper [prosecuto-
rial] conduct—irrespective of whether it appears intentional or inadvertent—
as it occurs in their courtrooms.” United States v. Nichol, No. 201800286,
2020 CCA LEXIS 178, at *14 (N-M. Ct. Crim. App. May 28, 2020) (un-
published); see also Andrews, 77 M.J. at 403-04 (“Military judges are neither
mere figurehead[s] nor are they umpire[s] in a contest between the Govern-
21 R. at 1830-32.
15
United States v. Braimer, NMCCA No. 201900271
Opinion of the Court
ment and accused,” and have a “sua sponte duty to [e]nsure that an accused
receives a fair trial.”) (citations and internal quotation marks omitted). That
is precisely what the military judge did here.
Finally, the Government’s case against Appellant, particularly for the
most egregious offense of sexually assaulting CS3 Warren, was strong. 22
Despite the challenges the Defense made to CS3 Sierra’s general credibility,
we find her testimony compelling, as it was corroborated not only by the hotel
video footage of Appellant’s actions at the hotel bar and elevators, but also by
other hotel guests who heard her yelling at Appellant to “get out” of her and
CS3 Warren’s hotel room. CS3 Sierra’s testimony, in turn, corroborated
CS3 Warren’s account of crying and telling Appellant to stop as he was
sexually assaulting her. Thus, in light of the curative actions taken by the
military judge and the strength of the evidence supporting Appellant’s
convictions, we are confident that the members convicted Appellant based on
the evidence alone and not as a result of any improper conduct or comments
by the trial counsel.
D. Legal and Factual Sufficiency
Appellant asserts the evidence is legally and factually insufficient to sup-
port several 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 (C.M.A. 1987) (citing Jackson v. Virginia,
443 U.S. 307, 319 (1979)). In conducting this analysis, we must “draw every
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) (citation and
internal quotation marks omitted).
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
22 We discuss more fully below the strength of the Government’s evidence for the
other offenses of which Appellant was convicted.
16
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Opinion of the Court
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).
1. Abusive sexual contact upon BM2 Allen
In Specification 3 of Charge I, Appellant was convicted of abusive sexual
contact upon GM2 Allen, in violation of Article 120(d), UCMJ. In order to
prove this offense, the Government was required to prove beyond a reasona-
ble doubt that (1) Appellant committed sexual contact upon GM2 Allen by
rubbing her knee; (2) he did so by causing bodily harm to her, i.e., doing so
without her consent; and (3) he did so with the intent to arouse or gratify the
sexual desire of any person. Manual for Courts-Martial, United States
[MCM], pt. IV, para. 45.b.(8)(b) (2016 ed.).
Appellant asserts that the proof is lacking for the third element, that Ap-
pellant’s intent in rubbing GM2 Allen’s leg was to arouse or gratify sexual
desire. We disagree. “[I]ntent, like other mental states, can be shown by
circumstantial evidence.” United States v. Vela, 71 M.J. 283, 286 (C.A.A.F.
2012) (citation omitted). The evidence here supports that during the liberty
bus ride Appellant intentionally placed his hand on GM2 Allen’s leg and
rubbed her knee and upper thigh for around 30 seconds, and after she pulled
away, he leaned in, took a deep breath, and told her she smelled good. We
find this circumstantial evidence sufficient proof of the requisite intent.
Considering the evidence in the light most favorable to the Prosecution,
we conclude a reasonable fact-finder could have found all the essential
elements of this offense, including the intent to gratify sexual desire, 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 personally observed the
witnesses, we, too, are convinced of Appellant’s guilt beyond a reasonable
doubt.
2. Sexual harassment upon CS3 Sierra
In Specification 2 of Charge II, Appellant was convicted of violating Sec’y
of the Navy Instr. 5300.26D (Jan. 3, 2006) [SECNAVINST 5300.26D] ,
prohibiting sexual harassment, in violation of Article 92, UCMJ. In order to
prove this offense, the Government was required to prove beyond a reasona-
ble doubt that (1) a certain lawful general order, i.e., SECNAVINST
5300.26D, was in effect; (2) Appellant had a duty to obey it; and (3) Appellant
violated the order by sexually harassing CS3 Sierra by, as charged, telling
her she was very beautiful, asking if she wanted to go back to his room, and
17
United States v. Braimer, NMCCA No. 201900271
Opinion of the Court
stating that he hated the Navy’s fraternization policy that prevented him
from being with any woman he found attractive because of pay grade. MCM,
pt. IV, para. 16.b.(1).
“Sexual harassment” is behavior that is “unwelcome, sexual in nature,
and connected in some way with a person’s job or work environment.” SEC-
NAVINST 5300.26D, encl. 2, para. 2. It includes “unwelcome sexual advanc-
es, requests for sexual favors, and other verbal or physical conduct of a sexual
nature when [among other things] . . . [s]uch conduct has the purpose or
effect of unreasonably interfering with an individual’s work performance or
creates an intimidating, hostile or offensive work environment.” SEC-
NAVINST 5300.26D, Encl. (1), para. 3.c. It includes “any military member . . .
who makes deliberate or repeated unwelcome verbal comments, gestures, or
physical contact of a sexual nature in the workplace.” Id.
In order to constitute sexual harassment, a person’s behavior “must meet
three criteria: it must be unwelcome, sexual in nature, and occur in or impact
on the work environment.” SECNAVINST 5300.26D, encl. 2, para. 3. “Work-
place” is “an expansive term for military members and may include conduct
on or off duty, 24 hours a day.” Id. “Work environment” includes “[t]he
workplace or any other place that is work-connected,” such as “an office, an
entire office building, a DoD [Department of Defense] base or installation,
DoD ships, aircraft or vehicles, anywhere when engaged in official DON
[Department of the Navy] business, as well as command-sponsored social,
recreational and sporting events, regardless of location.” SECNAVINST
5300.26D, encl. 1, para. 4.
Appellant argues the proof is lacking that his conduct during a private
excursion in a foreign country had the purpose or effect of unreasonably
interfering with CS3 Sierra’s work performance or created an intimidating,
hostile, or offensive work environment. We agree. While the definitions of
“workplace” and “work environment” are broadly worded under the SECNAV
instruction, they are rooted in the idea that either the place or the event in
which the conduct occurs is connected in some way to the Navy or DoD. This
is consistent with the general requirement that in order to be lawful, an order
must have a valid military purpose or connection:
The order must relate to military duty, which includes all ac-
tivities reasonably necessary to accomplish a military mission,
or safeguard or promote the morale, discipline, and usefulness
of members of a command and directly connected with the
maintenance of good order in the service.
MCM, pt. IV, para. 14.c.(2)(a)(iv).
18
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Opinion of the Court
We have previously held that offensive words or gestures which may con-
stitute sexual harassment in a military work environment are not punishable
when the conduct occurs in an off-duty, non-military-related context. United
States v. Peszynski, 40 M.J. 874, 881 (N-M. Ct. Crim. App. 1994) (finding
sexually harassing comments made by off-duty appellant to fellow employees
at Pizza Hut, none of whom were part of his unit, did not fall within the
Navy’s sexual harassment policy). Rather, there must be “an attendant
circumstance linking the act of harassment to the workplace.” United States
v. Murray, No. 201800163, 2019 CCA LEXIS 483, at *12 (N-M. Ct. Crim. App.
Dec. 5, 2019) (unpublished) (emphasis in original). An example of such an
attendant circumstance is when harassing comments occur off-duty but while
onboard a warship. See United States v. Olivares, No. 201800125, 2019 CCA
LEXIS 97 (N-M. Ct. Crim. App. Mar. 7, 2019) (unpublished). Even off-base
conduct at a private residence can meet this threshold if it is linked to the
workplace. See United States v. Baldwin, No. 201400014, 2014 CCA LEXIS
847 (N-M. Ct. Crim. App. Nov. 13, 2014) (unpublished) (master sergeant took
lance corporal mentee from same command to his off-base residence during
lunch hour, where he made inappropriate comments and caressed her hand,
which she found offensive and negatively impacted their work relationship).
Here, at the time of the conduct in question, Appellant was on liberty and
had taken a local bus to a foreign city hours away from the port where his
ship was located. He was staying in a private hotel at his own expense, and
was sitting and drinking in the hotel bar at his own expense, at the time he
made the remarks at issue. The individual with whom he was talking,
CS3 Sierra, was similarly situated. And while they were both attached to the
same ship, there is no evidence that they worked in the same work center or
the same chain of command or had any interaction prior to being on the same
local bus to Dublin, such that Appellant’s off-duty conduct could reasonably
be said to be “connected in some way with [either his or CS3 Sierra’s] job or
work environment.” SECNAVINST 5300.26D, encl. 2, para. 2. Thus, nothing
about the place or “event” in which the conduct at issue occurred bore any
relation to the Navy or the DoD or the military duty of either participant.
We conclude that however broadly the terms “workplace” and “work envi-
ronment” are defined under the SECNAV instruction, they are not so broad
as to encompass Appellant’s conduct in this context. It is not enough that
Appellant and CS3 Sierra were stationed aboard the same ship, or that
CS3 Sierra worked at the ship’s galley, if the evidence does not support that
Appellant’s conduct occurred in or impacted on that work environment. While
Appellant’s seniority might be relevant for other offenses meant to enforce
proper senior / subordinate relationships, that fact in and of itself does not
establish whether conduct impacts the work environment, such that it consti-
tutes sexual harassment under the instruction. We find the evidence here
19
United States v. Braimer, NMCCA No. 201900271
Opinion of the Court
fails to satisfy the third criterion of “sexual harassment” required under the
instruction—i.e., that the conduct “occur in or impact on the work environ-
ment.” SECNAVINST 5300.26D, encl. 2, para. 3. Accordingly, we conclude we
must set aside the finding of guilty for Specification 2 of Charge II, which we
accomplish in our decretal paragraph below.
3. Attempted abusive sexual contact upon CS3 Sierra
In the specification of Charge III, Appellant was convicted of attempted
abusive sexual contact upon CS3 Sierra in violation of Article 80, UCMJ. In
order to prove this offense, the Government was required to prove beyond a
reasonable doubt that (1) Appellant did certain overt acts, i.e., as charged,
climbed into CS3 Sierra’s bed and tried to kiss her without her consent;
(2) the acts were done with the specific intent to commit the offense of abu-
sive sexual contact; (3) the acts amounted to more than mere preparation;
and (4) the acts apparently tended to effect the commission of the intended
offense. MCM, pt. IV, para. 4(b). The elements of the attempted offense of
abusive sexual contact are that (1) Appellant committed sexual contact upon
CS3 Sierra; (2) he did so by causing bodily harm to her, i.e., doing so without
her consent; and (3) he did so with the intent to arouse or gratify the sexual
desire of any person. 45.b.(8)(b). The term “sexual contact” includes “any
touching, or causing another person to touch, either directly or through the
clothing, any body part of any person, if done with an intent to arouse or
gratify the sexual desire of any person. Touching may be accomplished by any
part of the body.” MCM, pt. IV, para. 45.a.(g)(2)(B).
Appellant asserts that the proof is lacking for the second element, that
Appellant had the specific intent to commit abusive sexual contact upon
CS3 Sierra. We disagree. Again, “intent, like other mental states, can be
shown by circumstantial evidence.” Vela, 71 M.J. at 286 (citation omitted).
Here, the evidence supports that Appellant, while CS3 Sierra was asleep,
took off his clothes, got on top of her in her hotel bed, and attempted to kiss
her as he was telling her to come back to his room with him. In the context of
his earlier sexual advances at the bar, we conclude that this circumstantial
evidence, notwithstanding his level of intoxication at the time, supports that
Appellant intended to kiss CS3 Sierra, without her consent, to arouse or
gratify his sexual desire. We further conclude, contrary to Appellant’s argu-
ment, that this offense of attempt was complete prior to CS3 Sierra waking
up and pushing him away, at which point he stopped any further attempts.
Considering the evidence in the light most favorable to the Prosecution,
we conclude a reasonable fact-finder could have found all the essential
elements of this offense beyond a reasonable doubt. The evidence is thus
legally sufficient to support the conviction. Regarding factual sufficiency,
20
United States v. Braimer, NMCCA No. 201900271
Opinion of the Court
after weighing the evidence in the record of trial and making allowances for
not having personally observed the witnesses, we, too, are convinced of
Appellant’s guilt beyond a reasonable doubt.
E. Discovery Violation
After the Irish Garda collected fingerprint evidence from CS3 Sierra and
CS3 Warren’s hotel room, fingerprint comparisons were conducted and found
no match for Appellant’s fingerprints in the bathroom. While the Garda case
file and evidence, including the fingerprint lift cards, were turned over to
U.S. authorities and later disclosed to the Defense in discovery, any results of
the Garda’s fingerprint comparisons apparently were not. At trial, the De-
fense cross-examined a Garda investigator about the results of the finger-
print comparisons, pointing out that the absence of Appellant’s fingerprints
in the bathroom failed to corroborate CS3 Sierra’s account that when they
arrived to their room Appellant initially went into their bathroom. 23
Appellant asserts the failure to disclose this evidence to the Defense vio-
lated his discovery rights. For such issues, “first, we determine whether the
information or evidence at issue was subject to disclosure or discovery;
second, if there was nondisclosure of such information, we test the effect of
that nondisclosure on the appellant’s trial.” United States v. Roberts, 59 M.J.
323, 325 (C.A.A.F. 2004). Regarding the latter prong, where the nondisclo-
sure pertains to a general discovery request, or if no request was made, we
23 The cross-examination was as follows:
Q. Sergeant [Kilo], so, you are saying today that the fingerprint
cards from the bathroom were tested by the Irish Garda?
A. Yes.
Q. And those test results were provided to the U.S. government?
A. My recollection is that there was no match for the fingerprints.
Q. There was no match of [Appellant] in the bathroom of room 328?
A. To my recollection.
Q. So that evidence does not corroborate CS3 [Sierra’s] story to the
Garda, does it?
A. That he went into the bathroom?
Q. Correct.
A. No, because it’s not there.
R. at 1463.
21
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Opinion of the Court
ask whether there is a reasonable probability that, had the evidence been
disclosed, the result of the trial would have been different. Id. Where the
nondisclosure pertains to a specific request or was a result of prosecutorial
misconduct, the Government must show the nondisclosure was harmless
beyond a reasonable doubt. Id.
Among the Government’s discovery obligations is to “disclose to the de-
fense the existence of evidence known to the trial counsel which reasonably
tends to: (A) Negate the guilt of the accused of an offense charged; (B) Reduce
the degree of guilt of the accused of an offense charged; or (C) Reduce the
punishment.” R.C.M. 701(a)(6). The scope of due diligence required with
respect to governmental files beyond the prosecutor’s own files is generally
limited to:
(1) the files of law enforcement authorities that have partici-
pated in the investigation of the subject matter of the charged
offenses; (2) investigative files in a related case maintained by
an entity closely aligned with the prosecution; and (3) other
files, as designated in a defense discovery request, that in-
volved a specified type of information within a specified entity.
United States v. Williams, 50 M.J. 436, 441 (C.A.A.F. 1999) (citations and
internal quotation marks omitted). However, “the parameters of the review
that must be undertaken outside the prosecutor’s own files will depend in any
particular case on the relationship of the other governmental entity to the
prosecution and the nature of the defense discovery request.” Id.
Here, the Defense submitted a request for “any investigative report creat-
ed by any investigative agency or command related to this case,” including
but not limited to “[a]ll investigative reports and documents from Irish law
enforcement.”24 Based on the record before us, we are unable to ascertain
whether the fingerprint comparisons referred to during the Garda investiga-
tor’s testimony were actually reduced to writing and therefore subject to
disclosure. Assuming without deciding that they were, we determine that
such evidence would be subject to disclosure under Williams.
However, even without access to any fingerprint comparisons conducted
by the Garda, the Defense had access to the substantive evidence—the
fingerprint cards themselves—and were able to cross-examine the Garda
investigator effectively about the absence of Appellant’s fingerprints in the
victims’ bathroom, highlighting the failure of this evidence to corroborate the
24 App. Ex. VII at 7.
22
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Opinion of the Court
victims’ testimony in that regard. Thus, while we recognize that pretrial
access to discovery materials is important to formulating a Defense strategy,
see United States v. Webb, 66 M.J. 89, 92 (C.A.A.F. 2008), we find little to
indicate such strategy was hampered here. The issue of whether Appellant
went into the victims’ bathroom—let alone whether he touched anything such
that his fingerprints would be found there—was hardly the linchpin of the
Government’s case regarding Appellant’s assaultive conduct in the hotel room
itself, where he was admittedly present. In light of the evidence of Appel-
lant’s guilt, which we discuss more fully elsewhere, we find any discovery
violation in this regard was harmless beyond a reasonable doubt.
F. Sentence Reassessment
Having set aside one of Appellant’s convictions, we must determine
whether we can reassess the sentence at the appellate level or whether we
must remand for the trial court to do so. We do so by determining: (1) wheth-
er there have been dramatic changes in the penalty landscape or exposure;
(2) whether sentencing was by members or a military judge alone; (3) wheth-
er the nature of the remaining offenses captures the gravamen of the crimi-
nal conduct included within the original offenses and whether significant or
aggravating circumstances addressed at the court-martial remain admissible
and relevant to the remaining offenses; and (4) whether the remaining
offenses are of the type with which appellate judges should have the experi-
ence and familiarity to reliably determine what sentence would have been
imposed at trial. United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F.
2013).
Here, we determine that we can reassess the sentence. As Appellant’s
conviction for violation of Article 92 comprised only two years of the maxi-
mum sentence of 46 years’ confinement, there has been no dramatic change
in the penalty landscape or exposure. While Appellant was sentenced by
members, the nature of the remaining offenses captures the gravamen of his
criminal conduct and does not significantly alter the circumstances of the
offenses relevant to sentencing. Finally, the remaining offenses are of the
type with which appellate judges have experience to reliably determine what
sentence would have been imposed at trial. Under these circumstances, we
are confident that the sentence the members would have imposed for the
remaining offenses would be the same as the one they originally adjudicated.
III. CONCLUSION
Appellant’s conviction of Specification 2 of Charge II is SET ASIDE and
DISMISSED WITH PREJUDICE. The remaining findings and the sen-
tence are AFFIRMED.
23
United States v. Braimer, NMCCA No. 201900271
Opinion of the Court
Judges STEWART and HOUTZ concur.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
24
United States v. Braimer
Combined Opinion