United States v. Horne

This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________

UNITED STATES
Appellee
v.
Brandon M. HORNE, Staff Sergeant
United States Air Force, Appellant
No. 21-0360
Crim. App. No. 39717
Argued March 1, 2022—Decided May 13, 2022
Military Judge: Mark F. Rosenow
For Appellant: Captain David L. Bosner (argued); Major
Ryan S. Crnkovich (on brief).
For Appellee: Captain Cortland T. Bobczynski (argued);
Colonel Naomi P. Dennis, Lieutenant Colonel Matthew J.
Neil, and Mary Ellen Payne, Esq. (on brief).
Amicus Curiae on behalf of Protect Our Defenders: Peter
Coote, Esq. (on brief).
Judge MAGGS delivered the opinion of the Court, in
which Chief Judge OHLSON, Judge SPARKS, and Judge
HARDY joined. Senior Judge RYAN filed a separate
opinion concurring in the judgment.
_______________

Judge MAGGS delivered the opinion of the Court.
Prior to the trial in this sexual assault case, a trial counsel
and a special victim’s counsel (SVC) took actions to dissuade
the Air Force Office of Special Investigation (AFOSI) from
interviewing a witness whom the trial counsel believed might
provide exculpatory evidence. Appellant contends that these
actions constituted apparent unlawful command influence in
violation of Article 37, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 837 (2012). 1 He therefore asks that we
set aside the findings and sentence adjudged by the court-

1 Congress amended Article 37, UCMJ, in 2019, after the events
at issue in this case occurred. National Defense Authorization Act
for Fiscal Year 2020, Pub. L. No. 116-92, § 532(a), 133 Stat. 1198,
1359 (2019). We do not address the amended version of the article
in this case.
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martial and dismiss with prejudice the sole charge and
specification in this case. Focusing on one requirement for
granting relief for apparent unlawful command influence, we
granted review of the assigned issue of “[w]hether the conduct
of the trial counsel and special victim’s counsel created an
intolerable strain on the public’s perception of the military
justice system.” After a careful consideration of the record and
the arguments of the parties, we conclude the Government
has demonstrated beyond a reasonable doubt that the answer
is no. Accordingly, Appellant is entitled to no relief under our
precedents. See United States v. Boyce, 76 M.J. 242, 249–50
(C.A.A.F. 2017) (providing the applicable rules regarding
apparent unlawful command influence).
I. Background
In July 2017, while in Germany on temporary duty,
Appellant and the victim spent an evening drinking with
others on a patio outside the hotel where the victim was
staying. At one point during the evening, the victim sent her
husband a text message that read: “Falling asleep... I love you
babe..[.] text me in the morning.” The victim, however,
continued to drink with her companions on the patio.
Eventually, the victim returned to her hotel room. Later
that night, Appellant knocked on her hotel door, pushed his
way into the room, shoved her onto the bed, undressed her,
and without her consent penetrated her vagina with his
penis. The victim reported the offense the next day and called
her husband in the United States and told him what had
happened.
An AFOSI agent subsequently made an appointment to
interview the victim’s husband in October 2017. Before the
interview took place, however, the SVC for the victim called
the agent. The SVC told the agent that the interview “needed
to be cancelled” and that the husband should only be
contacted through the SVC.
Around the same time, the SVC also contacted the trial
counsel assigned to Appellant’s case, and told her that the
attempted interview upset the victim and that she was
thinking about dropping out of the case altogether. The trial
counsel then emailed an AFOSI agent and said that “[f]rom a
prosecution standpoint, we do not believe that an [AF]OSI

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interview of the husband is necessary nor relevant enough to
outweigh the risk of the Victim dropping out of the process
entirely.” The AFOSI agent replied that contacting the
husband was appropriate for them to do and that an interview
was within AFOSI’s rights, but AFOSI nevertheless
acquiesced in trial counsel’s request and did not interview the
husband.
In January 2018, while the investigation of the victim’s
allegations was continuing, the SVC assisted the victim in
preparing a sworn statement, and the trial counsel provided
the SVC with a slide deck as a reference for charging theories.
At one point, the victim emailed a draft of the statement to
the SVC asking whether it was “what the legal office [was]
looking for.” In response, the SVC responded with comments,
one of which stated: “If you actually felt the penetration of his
penis, please do your best to describe it as you detail the
situation.” The victim subsequently included the following
sentence in her sworn statement: “I felt his penis pushing
through my vagina.” The trial defense counsel, however,
specifically told the military judge: “We are not alleging that
the statement was materially altered.”
In February 2018, the convening authority referred one
charge and specification of sexual assault to a general court-
martial. In May 2019, Appellant filed a pretrial motion to
dismiss the charge and specification with prejudice and to
suppress the victim’s testimony on the basis of unlawful
command influence. Appellant asserted that the SVC and
trial counsel had collaborated unlawfully to limit the scope of
the AFOSI investigation and to shape the victim’s testimony.
At this point, the trial counsel and the SVC had been released
from their roles as attorneys in this case and were replaced
by other counsel.
In May and July 2018, the military judge held hearings
under Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2018), on the
motion. Shortly before the first hearing session, counsel for
both parties interviewed the husband. During the hearings,
the victim, her husband, the trial counsel, the SVC, and the
AFOSI agents all testified. In addition to the facts described
above, evidence emerged that the Air Force uses metrics to
encourage the timely processing of cases, that three previous
sexual assault trials handled by the trial counsel’s office had

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resulted in findings of not guilty, and that the trial counsel
involved was highly regarded by her superior.
In November 2018, the military judge sent counsel an
email briefly announcing that he was denying Appellant’s
motion to dismiss for unlawful command influence. The trial
took place in December 2018. A general court-martial with
officer and enlisted members found Appellant guilty, contrary
to his plea, of one charge and specification of sexual assault
in violation of Article 120, UCMJ, 10 U.S.C. § 920 (Supp.
IV 2013–2017). The court-martial sentenced Appellant to be
reduced to grade E-4 and to be dishonorably discharged.
After the trial, in May 2019, the military judge
supplemented his email ruling on the motion to dismiss with
a lengthy written ruling. Two of the military judge’s findings
of fact were (1) that an “earlier pretrial interview of [the
victim’s] husband, by either a representative for the
government or any member of the defense, would [not] have
developed additional information or information contrary to
any made available through access to the witness in May
2018” and (2) that there was no “motive to gain some unfair
advantage” on the part of the trial counsel. Consistent with
his prior email ruling, the military judge concluded: “The
defense has not shown some evidence that [unlawful
command influence] occurred. Assuming it has, however, the
government has demonstrated beyond a reasonable doubt
that the facts as presented do not constitute [unlawful
command influence] . . . .”
The convening authority approved the adjudged sentence,
and the United States Air Force Court of Criminal Appeals
(AFCCA) affirmed. United States v. Horne, No. ACM 39717,
2021 CCA LEXIS 261, at *120, 2021 WL 2181169, at *39 (A.F.
Ct. Crim. App. May 27, 2021). In addressing Appellant’s
argument that the findings and sentence should be set aside
and dismissed because of apparent unlawful command
influence, the AFCCA “assume[d] for purposes of [its]
analysis that [the] combined actions of [the SVC and trial
counsel] may constitute ‘some evidence’ of the appearance of
unlawful influence.” Id. at *51, 2021 WL 2181169, at *17. But
the AFCCA then concluded that the Government had shown
beyond a reasonable doubt that “the alleged unlawful
influence did not place an intolerable strain upon the public’s

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perception of the military justice system, and that an
objective, disinterested, fully informed observer would not
harbor a significant doubt about the fairness of Appellant’s
court-martial.” Id. at *56, 2021 WL 2181169, at *19 (citing
Boyce, 76 M.J. at 249–50). One judge dissented from the
AFCCA’s judgment, concluding that the evidence was
factually insufficient to prove Appellant’s guilt beyond a
reasonable doubt. Id. at *120–21, 2021 WL 2181169, at *39
(Johnson, C.J., dissenting).
II. Discussion
A. Standards of Review and Applicable Law
This Court must accept the military judge’s findings of
fact unless the findings are clearly erroneous. United States
v. Mosby, 56 M.J. 309, 310 (C.A.A.F. 2002). “A finding of fact
is clearly erroneous when there is no evidence to support the
finding, or when, although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.”
United States v. Criswell, 78 M.J. 136, 141 (C.A.A.F. 2018)
(citations omitted) (internal quotation marks omitted). This
Court reviews de novo the legal question of whether the facts
establish apparent unlawful command influence. United
States v. Bergdahl, 80 M.J. 230, 234 (C.A.A.F. 2020).
This Court has held that the version of Article 37, UCMJ,
applicable to this case prohibits both actual and apparent
unlawful command influence. Boyce, 76 M.J. at 247–49. In
this appeal, however, Appellant alleges only apparent
unlawful command influence. In Bergdahl, this Court
concisely described the multistep process for determining
whether apparent unlawful command influence occurred and
whether an appellant is entitled to relief. This Court stated:
To make a prima facie case of apparent unlawful
command influence, an accused bears the initial
burden of presenting “some evidence” that unlawful
command influence occurred. Boyce, 76 M.J. at 249
(internal quotation marks omitted) (quoting United
States v. Stoneman, 57 M.J. 35, 41 (C.A.A.F. 2002)).
“This burden on the defense is low, but the evidence
presented must consist of more than ‘mere
allegation or speculation.’ ” Id. (quoting Salyer, 72
M.J. at 423).

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Once the accused meets the “some evidence”
threshold, the burden shifts to the government to
prove beyond a reasonable doubt that either: (a) the
“predicate facts proffered by the appellant do not
exist,” or (b) “the facts as presented do not constitute
unlawful command influence.” Id. (citing Salyer, 72
M.J. at 423; United States v. Biagase, 50 M.J. 143,
151 (C.A.A.F. 1999)). If the government cannot
succeed at this step, it must prove beyond a
reasonable doubt that the unlawful command
influence “did not place an intolerable strain upon
the public’s perception of the military justice system
and that an objective, disinterested observer, fully
informed of all the facts and circumstances, would
[not] harbor a significant doubt about the fairness of
the proceeding.” Id. at 249 (alteration in original)
(internal quotation marks omitted) (citation
omitted).
Bergdahl, 80 M.J. at 234.
In United States v. Proctor, 81 M.J. 250 (C.A.A.F. 2021),
this Court addressed two recurring issues in apparent
unlawful command influence cases. These issues are, first,
the relevance of prejudice to the accused, and second, the
relevance of ameliorative efforts to address the unlawful
command influence. Id. at 255. The Court explained: “Unlike
actual unlawful command influence, a meritorious claim of
the appearance of unlawful command influence does not
require prejudice to an accused. . . . Instead, the prejudice is
what is done to the ‘public’s perception of the fairness of the
military justice system as a whole.’ ” Id. (quoting Boyce, 76
M.J. at 248). But that does not mean that prejudice to the
accused is irrelevant. The Court in Proctor further stated: “A
significant factor in determining whether the unlawful
command influence created an intolerable strain on the
public’s perception of the military justice system is whether
the ‘appellant was not personally prejudiced by the unlawful
command influence, or that the prejudice caused by the
unlawful command influence was later cured.’ ” Id. (quoting
Boyce, 76 M.J. at 248 n.5).
In applying the apparent unlawful command influence
doctrine, this Court has not required the parties actually to
produce what one court has called “credible evidence that any
substantial segment of the general population suffered any

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loss of confidence in the military justice system.” United
States v. Ashby, No. NMCCA 200000250, 2007 CCA LEXIS
235, at *96, 2007 WL 1893626, at *31 (N-M. Ct. Crim. App.
June 27, 2007), aff’d 68 M.J. 108 (C.A.A.F. 2009), cert. denied
559 U.S. 940 (2010). Instead, the Court simply has assessed
the aggravating and mitigating facts and circumstances and
then decided, in its own estimation, whether the
Government’s conduct “place[d] an intolerable strain upon
the public’s perception of the military justice system.” Boyce,
76 M.J. at 249 (internal quotation marks omitted) (citation
omitted). Amicus Protect Our Defenders criticizes the
objectivity and propriety of this practice, suggesting that the
apparent unlawful command influence doctrine in reality
may be “simply a cover for a military judge to rule in
accordance with his own personal views on the fairness of a
court-martial.” Whatever the merits of this criticism, we do
not consider the issue now because the parties do not
challenge our precedent in this case but instead simply
disagree about the application of the current doctrine.
B. Analysis
In this case, the Government makes no effort to dispute
that Appellant has made a prima facie case of apparent
unlawful command influence. The Government also does not
assert that it can prove beyond a reasonable doubt either that
the predicate facts do not exist or do not constitute unlawful
command influence. Instead, the Government focuses only on
the final step in the apparent unlawful command influence
analysis described above. Relying on our decision in Proctor,
81 M.J. at 257, and consistent with the assigned issue in this
case, the Government asserts that this Court can resolve the
case “solely based on whether the government has proven
beyond a reasonable doubt that the conduct at issue did not
place an intolerable strain on the public’s perception of the
military justice system.”
The Government cites five facts and circumstances in
support of its position that we consider the most persuasive.
The Government asserts: (1) the parties fully litigated the
unlawful command influence issue before trial; (2) the trial
counsel and SVC were released from their roles in the case
before trial; (3) the Government disclosed all written
communications related to the alleged unlawful influence; (4)

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the military judge found that the trial counsel did not have
an intent to gain an advantage; and (5) the military judge
found that the actions to discourage the AFOSI investigations
ultimately did not cause Appellant any personal prejudice.
The Government contends that these and other facts and
circumstances establish beyond a reasonable doubt that the
conduct of the trial counsel and SVC did not place an
intolerable strain on the public’s perception of the military
justice system.
Appellant disagrees, identifying in its briefs at least
fifteen facts and circumstances that Appellant believes
prevent the Government from meeting its high burden of
proof. The matters cited by Appellant include: (1) the trial
counsel’s “intentional abandonment of evidence believed to be
exculpatory in nature”; (2) the trial counsel’s improper
“influence over an independent investigative agency”; (3) the
involvement of “judge advocates—persons who should know
better” in the misconduct; (4) the trial counsel’s ceding of the
Government’s “sovereign authority to the SVC and the named
victim to determine which witnesses to interview”; (5) the
manner in which the SVC leveraged his role “to become the
most influential decision maker in what is statutorily
designed to be a commander-driven military justice system”;
(6) the “highly politicized climate surrounding sexual assault
in the military”; (7) the “significant” role of “Article 120,
UCMJ, litigation . . . within the Armed Forces”; (8) the “lack
of . . . protections to check prosecutorial overreach” in the
military justice system; (9) the “arbitrary [case] processing
metrics . . . used to bolster officer performance reports” in the
Air Force JAG Corps; (10) the “nominal” remedial actions
taken by the Government in response to the misconduct;
(11) the dissenting opinion at the AFCCA on the issue of the
factual sufficiency of the evidence against Appellant; (12) the
“prosecuting legal office’s lack of a sexual assault conviction
in the two years leading up to Appellant’s case” and trial
counsel’s “involvement in those acquittals”; (13) the improper
collaboration of the trial counsel and special victim’s counsel
“regarding the substance of the named victim’s sworn witness
statement”; (14) the departure from the norm that “charging
decisions are typically made after review of the evidence”; and
(15) the appearance that the “purpose and timing of the

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[military judge’s] written ruling primarily served as
insulation against appellate scrutiny” Appellant contends
that these facts and circumstances taken together establish
at least a reasonable doubt about whether the conduct at
issue created an “intolerable strain” on the public’s perception
of the military justice system.
Before assessing the merits of the parties’ respective
positions, we first commend both parties for advancing
specific arguments with respect to the “intolerable strain”
element of the apparent unlawful command influence
doctrine. Under our precedent, we must consider “all the facts
and circumstances” in determining whether apparent
unlawful command influence occurred and whether the
Appellant is entitled to relief. Boyce, 76 M.J. at 249 (internal
quotation marks omitted) (citation omitted). Without specific
arguments highlighting aggravating and mitigating facts and
circumstances, any review of these issues would be very
difficult.
Turning to the merits, we agree that some of the facts and
circumstances that Appellant has identified would harm the
public’s perception of the military justice system. Indeed,
matters (1) through (5) generally concern a point that the
Government itself concedes in its brief, namely, that the
efforts of trial counsel and SVC “to discourage law
enforcement agents from interviewing [the victim’s
husband]—an outcry witness—were unwise and inadvisable”
because neither side “benefits when [AF]OSI fails to fully
investigate a case.” We also specifically agree that trial
counsel, as a judge advocate, should have known better than
to discourage an AFOSI investigation into potentially
exculpatory evidence.
We cannot agree, however, that all the facts and
circumstances that Appellant has asserted carry much
weight. Matters (6) through (9) concern general features of
the military justice system that have little if any relevance to
the question of whether the conduct of those involved in this
case created an intolerable strain on the public’s perception
of the military justice system. Although matters (10) through
(12) are more case-specific, they are marginal in significance.
In raising matters (13) and (14), Appellant implies that the
victim was improperly influenced when preparing her sworn

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statement. But the aggravating force of this suggestion is
undercut in our view because trial defense counsel specifically
told the military judge: “We are not alleging that the
statement was materially altered.” Finally, the record
provides no basis for the suggestion in matter (15) that the
military judge issued his post-trial written ruling on the
unlawful command influence issue “primarily . . . as
insulation against appellate scrutiny.”
Given that at least some of the facts and circumstances
that Appellant has cited are validly characterized as
prejudicial to the military justice system, the question is then
whether the Government has met its burden to establish
beyond a reasonable doubt that the conduct of the trial
counsel and SVC did not place an intolerable strain on the
public’s perception of the military justice system. We believe
that it has. As the Government asserts, the full litigation of
Appellant’s allegations before trial reflected well on the
military justice system. The litigation showed that the
military judge realized the importance of resolving the matter
before trial. All the relevant parties—the victim, her
husband, the trial counsel, the special victim’s counsel, and
the AFOSI agents—testified about what happened. The
military judge entertained extensive briefing and argument
on the question and granted two of Appellant’s requested
remedies. Fair process of this kind, especially when
undertaken in advance of trial, may largely if not completely
prevent the appearance of unlawful command influence from
placing a strain on the military justice system. In this regard,
the present appeal is notably different from United States v.
Riesbeck, 77 M.J. 154, 159 (C.A.A.F. 2018), where the military
judge dismissed an allegation of unlawful command
influence, “blithely asserting the issues could be worked out
on appeal rather than actually investigating the allegation.”
We also agree with the Government that the release of the
original trial counsel and the original SVC was a significant—
not merely “nominal”—ameliorative measure. Because no one
else was responsible for their conduct, their release surely
helped the public perception of the military justice system.
And while certainly true—in Appellant’s words—that judge
advocates “should [have] know[n] better,” the military judge
found as a fact that trial counsel did not have an intent to

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gain an advantage. Because the wrongful acts were not
coupled with an improper motivation, the public would likely
see them more as very regrettable mistakes but nothing
worse. Mistakes of this kind may lessen confidence in the
military justice system, but in this instance we think that
they fall short of creating an intolerable strain.
Finally, the military judge determined that the actions of
the trial counsel and the SVC did not cause personal
prejudice. Although the investigation was initially delayed,
ultimately AFOSI did interview the victim’s husband. As
explained above, this Court has held that “unlike actual
unlawful command influence where prejudice to the accused
is required, no such showing is required for a meritorious
claim of an appearance of unlawful command influence.”
Boyce, 76 M.J. at 248. But the lack of personal prejudice is
still a “significant factor in determining whether the unlawful
command influence created an intolerable strain on the
public’s perception of the military justice system.” Proctor, 81
M.J. at 255.
Appellant argues that the military judge’s finding that
Appellant suffered no personal prejudice is clearly erroneous.
Appellant contends that memories fade over time and he
gives a concrete example. Appellant notes that the husband
recalled talking to his wife in March 2018 but did not
remember this two months later in May 2018. Appellant
states: “This suggests—if he truly forgot anything—the loss
of memory occurred between March 2018 and May 2018,
directly undermining the military judge’s finding that any
earlier interview would not have been helpful.” Appellant’s
suggestion and supposition are insufficient to demonstrate
that the military judge’s finding of fact was clearly erroneous.
We can find clear error only when there is “no evidence to
support the finding” by the military judge or when, upon
reviewing all the evidence, we are “left with the definite and
firm conviction that a mistake has been committed.” Criswell,
78 M.J. at 141 (internal quotation marks omitted) (citation
omitted). That is not the case here.
Neither unlawful command influence nor the appearance
of unlawful command influence should occur in the military
justice system. When it has occurred, the Government may
take immediate steps to reduce prejudice to the accused and

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to ameliorate the situation. 2 Precisely that occurred here.
Accordingly, despite the valid aggravating facts and
circumstances that Appellant has emphasized, the
Government has convinced us beyond a reasonable doubt that
the conduct of the Government ultimately did not create an
intolerable strain on the public’s perception of the military
justice system.
III. Conclusion
This Court answers the assigned issue in the negative.
The judgment of the United States Air Force Court of
Criminal Appeals is affirmed.

2 This Court has not held that taking ameliorative efforts is
always necessary for proving beyond a reasonable doubt that
unlawful command influence did not place an intolerable strain
upon the public’s perception. See Bergdahl, 80 M.J. at 244 (finding
that some evidence of unlawful command influence did not place an
intolerable strain upon the public’s perception even though the
government performed no ameliorative efforts). But as the Court
indicated in Proctor, such efforts may reduce the prejudice to the
military justice system. 81 M.J. at 255.

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Senior Judge RYAN, concurring in the judgment.
I agree with the majority that there was no prejudice to the accused
in this case. I write separately to express my continued opinion that that
ends the inquiry with respect to unlawful command influence (UCI). In
my view, an appellant must show actual prejudice under Article 59(a),
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 859(a) (2012),
to prevail on a claim of UCI. United States v. Boyce, 76 M.J. 242, 254
(C.A.A.F. 2017) (Ryan, J., dissenting). Congress agrees, and after this
Court’s opinion in Boyce, which found “apparent” UCI while
acknowledging there was no prejudice to the accused, id. at 250, it
amended Article 37, UCMJ, 10 U.S.C § 837, to make even more clear
that an appellant must prove actual prejudice to prevail on a claim of
UCI. National Defense Authorization Act for Fiscal Year 2020, Pub. L.
No. 116-92, § 532(a)(2), 133 Stat. 1198, 1359–60 (2019). After the
2019 revisions, Article 37, UCMJ, now states: “No finding or sentence
of a court-martial may be held incorrect on the ground of a violation of
this section unless the violation materially prejudices the substantial
rights of the accused.” Article 37(c), UCMJ, 10 U.S.C. § 837(c) (2018
& Supp. I 2019–2020) (emphasis added). As two lower courts have
already concluded, this revision codified the approach of the dissent in
Boyce, 76 M.J. at 256 (Ryan, J., dissenting). See, e.g., United States v.
Gattis, 81 M.J. 748, 754–55 (N-M. Ct. Crim. App. 2021) (stating that
the revisions to Article 37 “vitiate the prior apparent UCI intolerable
strain/disinterested observer” test (internal quotation marks omitted)
(citation omitted)); United States v. Alton, No. ARMY 20190199, 2021
CCA LEXIS 269, at *13–14 n.5, 2021 WL 2232100, at *5 n.5 (A. Ct.
Crim. App. June 2, 2021) (unpublished) (same).
Moreover, the intolerable strain/disinterested observer test this
Court strove mightily to clarify in Boyce, is a judicially crafted doc-
trine, wholly unmoored from the text of Article 37, UCMJ, which leads
to ludicrous results. See United States v. Barry, 78 M.J. 70, 78
(C.A.A.F. 2018) (holding that even unintentional apparent UCI is pro-
hibited by Article 37, UCMJ).
While adhering to the precedent of this Court, the majority’s opin-
ion perpetuates the myth that the test for apparent UCI can be applied
objectively. It is not an objective test. Rather, the “disinterested ob-
server” test has always been “a cover for a military judge to rule in
accordance with his own personal views on the fairness of a court-mar-
tial.” Brief for Protect Our Defenders as Amicus Curiae at 10, United
States v. Horne, No. 21-0360 (C.A.A.F. Feb. 14, 2022). As Judge
Stucky pointed out in his dissent in Boyce, “it is difficult to understand
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Senior Judge RYAN, concurring in the judgment

how an objective, disinterested, fully informed observer, knowing that
there is no actual unlawful command influence, ‘would harbor a sig-
nificant doubt about the fairness of the proceedings.’ ” 76 M.J. at 254
(Stucky, J., dissenting) (second emphasis added) (citation omitted).
Appellant has not shown any evidence of actual prejudice. I re-
spectfully concur in the judgment.

2