United States v. Cunningham

This opinion is subject to revision before publication.

UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________

UNITED STATES
Appellee

v.

James T. CUNNINGHAM, Senior Airman
United States Air Force, Appellant

No. 23-0027
Crim. App. No. 40093

Argued March 29, 2023—Decided July 21, 2023

Military Judge: Sterling C. Pendleton

For Appellant: Major Spencer R. Nelson (argued);
Major David L. Bosner.

For Appellee: Major Morgan R. Christie (argued);
Colonel Naomi P. Dennis and Mary Ellen Payne,
Esq. (on brief).

Judge SPARKS delivered the opinion of the Court,
in which Chief Judge OHLSON and Judge
JOHNSON joined. Judge MAGGS filed a separate
opinion concurring in part and dissenting in part, in
which Judge HARDY joined.
_______________
 United States v. Cunningham, No. 23-0027/AF
Opinion of the Court

Judge SPARKS delivered the opinion of the Court.
In 2021, a general court-martial consisting of officer and
enlisted members convicted Senior Airman (SrA) James T.
Cunningham (Appellant), contrary to his pleas, of murder
in violation of Article 118, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 918 (2018). A military judge sentenced
Appellant to a dishonorable discharge, confinement for
eighteen years, forfeiture of all pay and allowances, and re-
duction to E-1. After the convening authority took no action
on the case, the lower court affirmed the findings and the
sentence. United States v. Cunningham, No. ACM 40093,
2022 CCA LEXIS 527, at *2, 2022 WL 4115134, at *1 (A.F.
Ct. Crim. App. Sept. 9, 2022) (unpublished).
This Court then granted review of the following issues:
I. Whether the Air Force Court properly applied
United States v. Edwards, 82 M.J. 239 (C.A.A.F.
2022) in finding error—but no prejudice—for a
victim impact statement that included videos, per-
sonal pictures, stock images of future events, and
lyrical music that touched on themes of dying,
saying farewell, and becoming an angel in heaven.
II. Whether trial counsel’s sentencing argument
was improper under United States v. Warren, 13
M.J. 278 (C.M.A. 1982) and United States v. Nor-
wood, 81 M.J. 12 (C.A.A.F. 2021), respectively,
when she: (1) argued that Appellant’s uncharged,
false statements were aggravating evidence after
she had previously cited case law to the military
judge that said false statements were not admis-
sible as evidence in aggravation; and (2) told the
military judge that he had seen the media and the
world was watching, to justify her sentence rec-
ommendation.
III. Whether Appellant was deprived of the right
to a unanimous verdict under Ramos v. Louisiana,
140 S. Ct. 1390 (2020), after the military judge de-
nied his motion for unanimity, denied his request
to poll the panel on whether its verdict was

2
 United States v. Cunningham, No. 23-0027/AF
Opinion of the Court

unanimous, and the Air Force Court dismissed the
issue with no discussion.1
United States v. Cunningham, 83 M.J. 139 (C.A.A.F. 2022)
(order granting review). We answer the first granted issue
in the affirmative and hold that the second granted issue
is expressly waived.
I. Background
At the time of the offense, Appellant was approximately
twenty-six years old and had been dating CM before the
couple had a child, ZC. The three lived together with two
housemates: BS and BS’s husband. On the day of the of-
fense ZC was almost six months old. ZC’s day-care provider
texted CM letting her know that he was happy and acting
normally while at day care. 2022 CCA LEXIS 527, at *4,
2022 WL 4115134, at *2. Appellant brought ZC home from
day care while CM was still at work. After doing so, Appel-
lant took ZC upstairs and began playing video games. Id.,
2022 WL 4115134, at *2. BS noted that ZC was “ ‘unusu-
ally’ fussy,” and texted her husband that it sounded like
Appellant was throwing something or jumping around as if
he were annoyed that he had to stop playing video games
because of ZC. Id., 2022 WL 4115134, at *2. After BS sent
this text, Appellant called for BS, saying that something
“was wrong” with ZC and he did not know why. BS testified
that ZC did not appear normal, he was limp and could not
hold his head up. BS then called 911.
Throughout the ordeal Appellant gave various stories to
several parties—his housemate, first responders, and local
authorities—about what happened to ZC. For instance, he
told first responders that ZC woke up “fussy” and started
making gurgling noises when he tried to feed ZC. Upon be-
ing told that medical personnel discovered a brain bleed in
ZC, Appellant then changed his story several times: ZC hit
his head while in his baby “jumper” seat, Appellant

1 Issue III was not argued or briefed, as it was held as a
trailer to United States v. Anderson, __ M.J. __ (C.A.A.F. 2023).
Based upon the decision in Anderson, we hold that Appellant
was not deprived of the right to a unanimous verdict.

3
 United States v. Cunningham, No. 23-0027/AF
Opinion of the Court

dropped ZC onto a carpeted floor, and ZC fell onto a hard-
wood floor. Appellant ultimately admitted that he hit ZC in
the face out of frustration because ZC would not stop cry-
ing. He told investigators that he was “ ‘afraid [authorities]
were going to take [his] kid from [him]. . . . [he] got frus-
trated. . . . [ZC] just kept screaming . . . . [he] just let that—
frustration, the anger, just build up.’ ” 2022 CCA LEXIS
527, at *14, 2022 WL 4115134, at *5. As a result of the in-
juries, ZC died nine days later in the hospital.
A. Sentencing Testimony and the Victim
Impact Statement
CM and CM’s mother testified under oath during the
Government’s sentencing case without objection. CM’s
mother testified about the impact ZC’s death had upon her
and CM. CM’s mother explained that, upon hearing about
ZC’s injuries, she immediately flew to be with her daughter
and was at the hospital for ZC’s last days. She testified that
seeing ZC in the hospital was “horrific,” and that it was the
“worst thing” she had witnessed in her life. Observing her
daughter’s struggle with ZC’s death, and ZC’s death itself,
“changed [CM’s mother’s] entire life.” CM’s mother re-
quested medications to help cope and considered suicide.
Every night CM’s mother would receive multimedia mes-
sages via Snapchat of her daughter crying, “talking about
how she misses her child, [and how] she misses being a
mommy.”
CM testified in detail about the process of deciding to
withdraw life support, the moment ZC died in her arms,
her suffering after his death, and the toll it took on her. CM
described that she lost not only her child, but also her rela-
tionship with Appellant, the ability to trust others, and
“the future [she] thought [she] had.” During her testimony,
CM referenced three pages of pictures which were later ad-
mitted as a prosecution exhibit, consisting of photos of ZC’s
hospital room, CM looking at ZC in the hospital, and CM
cuddling ZC in the hospital bed.
CM was appointed as ZC’s representative pursuant to
Article 6b, UCMJ, 10 U.S.C. § 806b (2018), and in this role
made an unsworn victim impact statement following the

4
 United States v. Cunningham, No. 23-0027/AF
Opinion of the Court

Government’s sentencing case. CM’s victim impact
statement consisted of her orally addressing the military
judge while using a PowerPoint slideshow that consisted of
pictures, videos, and somber music. The PowerPoint
presentation contained eleven slides, including animations
which included transitions, appearing and disappearing
text, and slides crumpling like paper that is being thrown
away. It also included over fifty still images; four still
images which were stock images of future life events which
ZC would not experience (such as a first day at school,
marriage, and graduation); and embedded presentations
that automatically played video with accompanying audio.
CM then finished her victim impact statement orally. CM
stated that “all the slides [she] presented . . . videos,
pictures, words . . . all come from [her].”
II. Standard of Review
Interpreting Rule for Courts-Martial (R.C.M.) 1001A
(2016 ed.) is a question of law this Court reviews de novo.
United States v. Edwards, 82 M.J. 239, 243 (C.A.A.F.
2022).2 However, we review a military judge’s decision to
accept a victim impact statement offered pursuant to
R.C.M. 1001A for an abuse of discretion Id. “When the
Court finds error in the admission of sentencing evidence
(or sentencing matters), the test for prejudice is ‘whether
the error substantially influenced the adjudged sentence.’ ”
Id. at 246 (quoting United States v. Barker, 77 M.J. 377,
384 (C.A.A.F. 2018)).
III. Analysis
A. The Victim Impact Statement
Under the plain text of R.C.M. 1001A(e) (2016 ed.), un-
sworn statements may be “oral, written, or both.” In Ed-
wards, we concluded that the military judge abused his dis-
cretion by admitting a victim impact statement that

2 We note that in the 2019 edition of the Manual for Courts-
Martial, R.C.M. 1001A (2016 ed.) has been incorporated into
R.C.M. 1001 as R.C.M. 1001(c) (with subsection header “Crime
victim’s right to be reasonably heard”).

5
 United States v. Cunningham, No. 23-0027/AF
Opinion of the Court

consisted of a video presentation containing photographs
and music because R.C.M. 1001A(e) (2016 ed.) only author-
ized a victim impact statement that was “oral, written, or
both.” In this case, even though R.C.M. 1001A(e) (2016 ed.)
has been moved to R.C.M. 1001(c) (2019 ed.), the rule still
only authorizes a victim impact statement which is “oral,
written, or both.” R.C.M. 1001(c)(5)(A). Accordingly, the ad-
mission of the victim impact statement in the instant case
is error as it similarly contained elements which were nei-
ther “oral” nor “written,” namely, the music and photo-
graphs. Edwards, 82 M.J. at 244. As such, the analysis
turns to prejudice.3
Prejudice
The Government “bears the burden of demonstrating
that the admission of erroneous evidence was harmless.”
Id. at 246. We consider “four factors when deciding
whether an error substantially influenced an appellant’s
sentence: ‘(1) the strength of the Government’s case; (2) the
strength of the defense case; (3) the materiality of the evi-
dence in question; and (4) the quality of the evidence in
question.”4 Id. at 247 (quoting Barker, 77 M.J. at 384). We
conduct this analysis de novo. United States v. Thompson,
63 M.J. 228, 231 (C.A.A.F. 2006)). “[I]t is highly relevant
when analyzing the effect of error on the sentence that the
case was tried before a military judge, who is presumed to

3 As in Edwards, 82 M.J. at 243, we need not—and do not—
decide whether the rules would ever permit a victim to offer an
unsworn statement via prerecorded video because the victim im-
pact statement at issue in this case was deficient for the reasons
explained above. Additionally, although part of CM’s victim im-
pact statement consisted of her making an oral statement, we
make no ruling as to whether what she said is severable from
the victim impact statement as a whole.
4 As we have done in the past, the Court acknowledges that
applying these factors to sentencing, as opposed to errors occur-
ring during the findings phase of the court-martial, is difficult.
See Edwards, 82 M.J. at 247. Nonetheless, it is the test with
which we conduct sentencing errors given our precedent, and as
such we are obligated to use it.

6
 United States v. Cunningham, No. 23-0027/AF
Opinion of the Court

know the law.” Barker, 77 M.J. at 384 (citing United States
v. Bridges, 66 M.J. 246, 248 (C.A.A.F. 2008)).
As for the first factor, the Government’s sentencing case
is strong and weighs heavily in its favor. Appellant was
convicted of a serious crime which exposed him to a poten-
tially long sentence. Namely, Appellant struck his six-
month-old child in the head out of frustration, causing ZC’s
death; he lied multiple times to multiple people, including
first responders responsible for ZC’s care; and CM and
CM’s mother’s collective sworn testimonies highlighted
their collective suffering which directly resulted from the
crime, which was the murder of an infant. Furthermore,
Appellant concedes that this “first Barker factor weighs in
favor of the Government as its sentencing case was strong
in the sense that the victim’s grandmother and mother tes-
tified under oath about the devastating impact [ZC’s] death
had on them.”
As for the second factor, unlike in Edwards, 82 M.J. at
247, Appellant did introduce matters in extenuation and
mitigation. Multiple parties spoke on Appellant’s behalf.
Although there was a significant number of people doing
so, thirteen in total, the majority came as unsworn rec-
orded statements. However, Appellant’s own unsworn tes-
timony focused almost entirely on himself—how he could
not attend ZC’s funeral, or how he could not be there to
support CM—and he expressed little remorse for his ac-
tions. Nonetheless, we conclude that this factor weighs
slightly in favor of Appellant.
The third factor, materiality, weighs in the Govern-
ment’s favor. Although matters are material if they have
“some logical connection with the facts of the case or the
legal issues presented,”5 “an error is more likely to have
prejudiced an appellant if the information conveyed as a
result of the error was not already obvious from what was
presented at trial.” Edwards, 82 M.J. at 241; see also
United States v. Harrow, 65 M.J. 190, 200 (C.A.A.F. 2007)

5 Black’s Law Dictionary 701 (11th ed. 2019).

7
 United States v. Cunningham, No. 23-0027/AF
Opinion of the Court

(noting that an error is likely to be harmless when a fact
was already obvious from prior testimony and the evidence
in question “ ‘would not have provided any new ammu-
nition’ ” (quoting United States v. Cano, 61 M.J. 75, 77-78
(C.A.A.F. 2005))). The information contained in the Power-
Point presentation was drawn from the evidence that had
already been admitted during both the trial on the merits
and sentencing proceedings. CM and her mother both tes-
tified during the sentencing and communicated the “pro-
found pain and devastating impact that Appellant’s crime
had on them.” 2022 CCA LEXIS 527, at *38, 2022 WL
4115134, at *12. Properly admitted photos and the content
of CM’s testimony from presentencing proceedings illus-
trate her devastation resulting from Appellant’s acts. For
example, CM testified that she wanted to be a “mother
more than anything” when she grew up; she thought ZC
was a perfect baby; receiving the call that ZC was going to
the hospital was the worst phone call she had ever received;
when she was told by the neurosurgeon that ZC would not
survive, it felt as if “somebody took a knife and jabbed it
into [her] heart, and pulled it back out, and stomped on it”;
“it was hell” when she was woken up and was told ZC was
brain dead after spending eight days in the hospital with
him; after deciding to take ZC off of life support she held
him in her arms as he died; she likely will have trust issues
if she were to attempt to have children in the future; and
everything felt as if it were taken from her. Also admitted
into evidence were photos of ZC hooked up to lifesaving
equipment, and CM in bed cuddled next to ZC. Addition-
ally, while the Government’s sentencing argument refer-
enced “victim impact,” and mentioned that CM spoke on
her own behalf and that of ZC, as his authorized repre-
sentative, it did not explicitly reference the content of the
PowerPoint presentation or CM’s oral victim impact state-
ment.6 The cumulative nature of the videos and

6 Appellant states that although the PowerPoint presenta-
tion was not used during trial counsel’s argument, it was still
“clearly referenced” by the Government, and thus, it was

8
 United States v. Cunningham, No. 23-0027/AF
Opinion of the Court

photographs—despite their materiality to the case—pro-
vides no additional information than what was presented
during sentencing testimony, and as such supports our
holding that Appellant suffered no prejudice. See also
United States v. Hursey, 55 M.J. 34, 36 (C.A.A.F. 2001)
(concluding that an error to admit evidence was harmless
in part because the record contained a significant amount
of admissible evidence that was similar). Lastly, although
the admitted music was not necessarily cumulative, we
nonetheless do not expect it to sway a military judge.
As for the quality of the evidence, the fourth Barker fac-
tor, it also weighs against Appellant. The quality of the ev-
idence may be assessed by its tendency, if any, to influence
the trier of fact, or in this case, the sentencing authority.
The victim impact statement in this case was clearly in-
tended by the victim advocates to evoke emotion. Nonethe-
less, military judges are “presumed to know the law” and
follow it absent clear evidence to the contrary. United
States v. Erickson, 65 M.J. 221, 225 (C.A.A.F. 2007);
Barker, 77 M.J. at 384. We note that the military judge in
the instant case, in reference to the victim impact state-
ment, stated that he would “give it the weight that it

material. The “reference” is insignificant at most, especially
when compared to the use of the actual video by counsel during
sentencing argument in Edwards. In the instant case, trial coun-
sel said that:
[CM] never did get to take those six-month photos of
[ZC]. She is never going to watch him graduate. She
is never going to hear him utter the words mama to
her. Every single moment in his life, from the major
to the mundane were destroyed, erased, wiped away
with the accused [sic] murder.
Brief for Appellant at 21, United States v. Cunningham, No. 23-
0027 (C.A.A.F. Jan. 12, 2023) (alterations in original) (internal
quotation marks omitted). The only overlap between the victim
impact statement and trial counsel’s words was one slide in the
PowerPoint presentation, which had a stock graduation photo,
and CM stating orally that she would never be able to “applaud
as he walks across the stage on graduation day.” This is not an
explicit reference to the victim impact statement.

9
 United States v. Cunningham, No. 23-0027/AF
Opinion of the Court

deserves, and [he] will consider it under the rule as [he]
mentioned.” However, we do not conclude that this neces-
sarily indicates that the military judge gave the victim im-
pact statement any weight, let alone was substantially in-
fluenced by it, and thus is not “clear evidence to the
contrary.” Erickson, 65 M.J. at 225. A military judge un-
derstands that emotions cannot enter the final determina-
tion of the sentence, and a military judge is far less likely
to be influenced by the emotional aspects of a victim impact
statement even if it were designed to explicitly invoke emo-
tion. See, e.g., United States v. Manns, 54 M.J. 164, 167
(C.A.A.F. 2000) (noting that in bench trials the risk of un-
fair prejudice is substantially less than it would be with
members). There is no indication in this record that the
military judge allowed the emotional aspects of the presen-
tation to affect him to a point that he departed from his
duty to determine an appropriate sentence in a fair, objec-
tive, and unbiased manner. Ultimately, the military judge
imposed a sentence of eighteen years in opposition to the
Government’s request of at least twenty to twenty-five
years of confinement. Yes, the military judge erred in al-
lowing the victim impact statement based on its format, as
pictures and music are not permissible. See Edwards, 82
M.J. at 243-44. Yet, even with this error, again, there is
nothing in the record to support that the military judge was
substantially influenced by the victim impact statement as
it was presented. See, e.g., Barker, 77 M.J. at 384 (holding
that in a bench trial, despite the military judge erring in
admitting victim impact statements given their inappro-
priate format, it was the “particularly horrific” “manner in
which [the victimized children] were sexually assaulted”
that influenced the adjudged sentence, not the wrongly ad-
mitted statements). After assessing the above factors, we
hold that the Government has met its burden to demon-
strate that the error did not substantially influence Appel-
lant’s sentence.
B. Improper Sentencing Argument
At the conclusion of their sentencing arguments, the
military judge asked if either party had any objections.

10
 United States v. Cunningham, No. 23-0027/AF
Opinion of the Court

Government trial counsel and trial defense counsel an-
swered in the negative. “Whether an appellant has waived
an issue is a legal question that this Court reviews de
novo.” United States v. Davis, 79 M.J. 329, 332 (C.A.A.F.
2020) (citing United States v. Haynes, 79 M.J. 17, 19
(C.A.A.F. 2019)). In this case, trial defense counsel “did not
just fail to object,” but “affirmatively declined to object”
when answering “no” to the military judge’s question. Da-
vis, 79 M.J. at 331-32. We hold that this response consti-
tutes an express waiver, obviating the need to address the
issue of improper sentencing argument.
IV. Conclusion
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.

11
 United States v. Cunningham, No. 23-0027/AF

Judge MAGGS, with whom Judge HARDY joins, concur-
ring in part and dissenting in part.
In this appeal, Appellant challenges a sentencing argu-
ment and a victim impact statement. I fully agree with the
Court’s conclusion that Appellant expressly waived his objec-
tions to the sentencing argument. But I only partially agree
with the Court’s analysis of the victim impact statement. Spe-
cifically, I agree with the Court that the military judge abused
his discretion by allowing the victim’s representative to pre-
sent a PowerPoint slideshow that included pictures, videos,
and music with lyrics during the sentencing phase of the trial.
I further agree with the Court that precedent requires us to
consider the factors discussed in United States v. Barker, 77
M.J. 377, 384 (C.A.A.F. 2018), in determining whether this
error was harmless. But I do not agree with the Court’s hold-
ing that the Government has proved that the error did not
substantially prejudice Appellant.
In my view, this case is indistinguishable from United
States v. Edwards, 82 M.J. 239, 248 (C.A.A.F. 2022). In Ed-
wards, this Court held that the government failed to prove
that a nearly identical error did not substantially prejudice
the accused. Id. I would reach the same conclusion here. Ac-
cordingly, while I concur in the Court’s judgment insofar as it
affirms the finding that Appellant is guilty of unpremeditated
murder, I respectfully dissent from the judgment insofar as it
affirms the sentence.
I write separately for two reasons. The first is to explain
why I believe this case is indistinguishable from Edwards.
The second is to question whether the four Barker factors are
generally suited to the task of deciding whether an error has
substantially affected a sentence. This case and Edwards sug-
gest that they are not.
I. The Edwards Precedent
In Edwards, a court-martial found the appellant guilty
of one specification of unpremeditated murder and sen-
tenced him to thirty-five years in prison, a dishonorable
discharge, reduction to the grade of E-1, and forfeiture of
all pay and allowances. 82 M.J. at 241-42. On appeal to this
Court, the appellant argued that the military judge had
abused his discretion by allowing the victim’s
 United States v. Cunningham, 23-0027/AF
Judge MAGGS, concurring in part and dissenting in part

representative to present a sophisticated video during the
presentencing phase of the trial. Id. at 240-41. The video
included an interview with the victim’s parents and a
slideshow of photographs set to background music. Id. at
240. It turned out that trial counsel had produced the video
on behalf of the victim’s family. Id. at 241.
In addressing the appellant’s argument, this Court ob-
served that Rule for Courts-Martial (R.C.M.) 1001A(e)
(2016 ed.), authorized “a victim or the victim’s designee” to
make an unsworn impact statement that is “ ‘oral, written,
or both.’ ” Edwards, 82 M.J. at 241. The Court then ruled
that the military judge had abused his discretion in allow-
ing the video to serve as a victim impact statement on two
separate grounds. Id. First, the Court reasoned that a video
that includes music and pictures is not an oral or written
statement within the meaning of R.C.M. 1001A(e). Id. Sec-
ond, the Court reasoned that the right to make an unsworn
statement belongs to the victim or the victim’s designee
and cannot be transferred to trial counsel. Id.
Having determined that an error occurred, the Court
turned to prejudice. The Court held that the government
had conceded that it had the burden of proving that the
error did not substantially influence the adjudged sen-
tence. Id. at 246 (citing Barker, 77 M.J. at 384). The Court
further held that it would assess prejudice by considering
four factors identified in Barker: “(1) the strength of the
Government’s case; (2) the strength of the defense case; (3)
the materiality of the evidence in question; and (4) the
quality of the evidence in question.” Id. at 247 (internal
quotation marks omitted) (quoting Barker, 77 M.J. at 384).
In addition to the Barker factors, the Court cited United
States v. Harrow, 65 M.J. 190, 200 (C.A.A.F. 2007), for the
principle that an error is more likely to have prejudiced the
accused “if the information conveyed as a result of the error
was not already obvious from what was presented at trial.”
82 M.J. at 247.
The Court in Edwards decided that the first two factors
did not support a conclusion that prejudice had occurred
because the government’s case was strong, and the

2
 United States v. Cunningham, 23-0027/AF
Judge MAGGS, concurring in part and dissenting in part

defense’s case was not. Id. But the Court decided that the
materiality and quality factors supported a conclusion that
prejudice had occurred. Id. The Court reasoned that the
video was material because it included content “that had
the potential to influence the sentencing decision of the
panel.” Id. at 248. The Court further reasoned that the
quality of the video weighed in favor of finding prejudice
because the video was “emotionally moving.” Id. Balancing
all the factors, the Court held that the government failed
to meet its burden of establishing that the video did not
substantially influence the appellant’s sentence. Id.
In my view, this case is indistinguishable from Ed-
wards. In both cases, the court-martial found the accused
guilty of murder. In both cases, the military judge allowed
the victim’s representative to present music, video, and
photographs as a victim impact statement. In both cases,
the court-martial imposed a lengthy prison sentence. In
Edwards, this Court held that the military judge abused
his discretion because R.C.M. 1001A(e) (2016 ed.) only au-
thorized a victim impact statement that was “oral, written,
or both.” In this case, even though R.C.M. 1001A(e) (2016
ed.) has been moved to R.C.M. 1001(c) (2019 ed.), the rule
still only authorizes a victim impact statement which is
“oral, written, or both.” R.C.M. 1001(c)(5)(A). The military
judge in this case therefore abused his discretion for the
same reason as the military judge in Edwards.
In deciding whether the error was harmless, my
analysis of the Barker factors is essentially the same as the
Court’s analysis of these factors in Edwards. Applying the
first two Barker factors, I would conclude, as the Court did
in Edwards, that the Government’s case was strong, and
that the defense’s case was not. Accordingly, I agree that
these factors do not support a conclusion that prejudice
occurred.
The third Barker factor is the materiality of what was
wrongly considered at sentencing. Evidence or other mat-
ters considered in a trial are “material” if they have “some
logical connection with the facts of the case or the legal is-
sues presented.” Black’s Law Dictionary 701 (11th ed.

3
 United States v. Cunningham, 23-0027/AF
Judge MAGGS, concurring in part and dissenting in part

2019). In this case, the PowerPoint presentation was mate-
rial for the same reason that the improper video was mate-
rial in Edwards: it presented information about the impact
of the offense that “had the potential to influence the sen-
tencing decision of the panel.” Edwards, 82 M.J. at 248.
The photographs and videos conveyed the profound effects
of the murder on the victim’s mother and the loss of life
that the infant victim himself suffered.
The final Barker consideration is the “quality” of what
was wrongly considered at sentencing. When appellate
courts assess the quality of evidence or other information
presented at trial (as opposed to, say, the quantity of such
evidence or other information), their task is one of estima-
tion. They must appraise the evidence or other information
and determine how likely it was to have convinced or influ-
enced the court-martial in the circumstances of the case.
See, e.g., United States v. Thompson, 63 M.J. 228, 232
(C.A.A.F. 2006) (concluding that the “actual worth of the
statements about preservice drug use was minimal” be-
cause they were scarcely cited by counsel and subject to a
limiting instruction by the military judge); United States v.
Kerr, 51 M.J. 401, 406 (C.A.A.F. 1999) (concluding that the
“quality” of some wrongly admitted evidence was “of ques-
tionable credibility”). As in Edwards, I would conclude that
the photos, video, and music had a tendency to influence
the sentence. Indeed, the military judge expressly con-
firmed the quality of the PowerPoint presentation when he
said: “To me, that’s proper victim impact including psycho-
logical, social impact directly relating to or arising from the
offense to which the accused has been found guilty.” For
these reasons, I would conclude that, like the quality of the
video in Edwards, the quality of the PowerPoint presenta-
tion supports a conclusion that prejudice occurred. Balanc-
ing all four factors, I would hold that the Government
failed to prove that the error did not substantially affect
the sentence.
The Court reaches a different conclusion in part be-
cause of its assessment of the materiality factor. The Court
acknowledges that the PowerPoint presentation was

4
 United States v. Cunningham, 23-0027/AF
Judge MAGGS, concurring in part and dissenting in part

material but decides that the materiality factor should not
weigh heavily in the prejudice analysis because the content
of the PowerPoint presentation was largely cumulative of
other evidence. I agree that the PowerPoint presentation
might have been more prejudicial if it had presented more
new information. But that does not make the PowerPoint
presentation any less material or negate its tendency to in-
fluence the sentencing decision. This factor, accordingly,
still favors Appellant and weighs against the Government.
The Court also concludes that the “quality” of the
presentation favors the Government because nothing in
the record shows that the emotional aspects of the presen-
tation actually affected the military judge’s judgment. I
agree that it is difficult to point to anything in the record
of this case that demonstrates the extent to which the Pow-
erPoint presentation actually influenced the military
judge. But absent a highly unusual express statement by a
sentencing authority about sentencing deliberations, the
record of a case almost never will reveal the actual extent
to which improper evidence or unsworn statement influ-
enced the sentence. Accordingly, under Edwards and
Barker, the quality factor is not and cannot be assessed by
the lack of an express indication of the actual effect of the
PowerPoint presentation on the sentencing authority. In-
stead, as the Court itself explains, the quality of the Pow-
erPoint presentation must be evaluated by its “ten-
dency . . . to influence the . . . sentencing authority.”
(Emphasis added.) Just like the video in Edwards, the
“emotionally moving” PowerPoint presentation in this case
had a tendency to influence the military judge, and there-
fore Appellant’s sentence, by “evok[ing] an emotional re-
sponse.” 82 M.J. at 248. This factor therefore also favors
Appellant and weighs against the Government.
Finally, the Court presumes that the military judge un-
derstood the law and therefore did not give much consider-
ation to the music and photographs in the video. While we
always start with a presumption that military judges know
the law, see United States v. Erickson, 65 M.J. 221, 225
(C.A.A.F. 2007), the presumption must give way when

5
 United States v. Cunningham, 23-0027/AF
Judge MAGGS, concurring in part and dissenting in part

there are persuasive contrary indications. In this case,
when the military judge overruled trial defense counsel’s
objection to the video, the military judge erred under
R.C.M. 1001(c)(5)(A). He further demonstrated that the
PowerPoint presentation would affect his judgment when
he characterized the PowerPoint presentation as contain-
ing “proper victim impact.” In these circumstances, the pre-
sumption does not change my view.
For the reasons discussed above, I would affirm the de-
cision of the United States Air Force Court of Criminal Ap-
peals with respect to the finding of guilty but reverse with
respect to the sentence and return the record to the Judge
Advocate General of the Air Force for remand to the Court
of Criminal Appeals either to reassess the sentence based
on the affirmed finding of guilty or to order a sentence re-
hearing.
II. Using the Barker Factors to Determine Whether
Errors in Sentencing Were Harmless
In United States v. Weeks, this Court first adopted a
four-factor test for determining whether erroneous eviden-
tiary rulings substantially affected the findings of a court-
martial. 20 M.J. 22, 25 (C.M.A. 1985). These factors were
refined in Kerr, 51 M.J. at 405, and later became known as
the Kerr factors. See United States v. Bowen, 76 M.J. 83, 89
(C.A.A.F. 2017). In Barker, without much discussion, this
Court applied the same four factors used in Kerr to deter-
mine whether an error at sentencing substantially affected
the sentence. 77 M.J. at 384. This Court followed Barker in
United States v. Hamilton, 78 M.J. 335, 343 (C.A.A.F.
2019), and Edwards, 82 M.J. at 247.
However suitable the four factors might be for deter-
mining prejudice with respect to the findings, I have signif-
icant doubts about whether they are apt for deciding
whether an error affected the sentence. In Edwards and in
the present highly similar case, this Court has applied the
Barker factors but arrived at different results. At least part
of the reason for our disagreement may be that the Barker

6
 United States v. Cunningham, 23-0027/AF
Judge MAGGS, concurring in part and dissenting in part

factors are simply too crude a tool for determining whether
an error at sentencing substantially affected a sentence.
Deciding whether an error influenced the sentence is
more difficult than deciding whether an error influenced
the findings. Findings generally involve a binary choice of
whether the accused is guilty or not guilty of a charged of-
fense. In contrast, sentencing involves considerable discre-
tion. In this case, the military judge sentenced Appellant
to confinement for eighteen years. A wide variety of consid-
erations must have gone into that decision. Even if the
PowerPoint presentation only added several months to his
confinement, that would still be material prejudice to Ap-
pellant. I am skeptical that we can rule out that possibility
using just the Barker factors. And by limiting analysis of
prejudice to these four factors, we unnecessarily focus more
on their definitions than on the total effects of an error.
Article 59(a), UCMJ, provides that a “sentence of a
court-martial may not be held incorrect on the ground of an
error of law unless the error materially prejudices the sub-
stantial rights of the accused.” 10 U.S.C. § 859(a) (2018).
This Court has reduced the “material prejudice” standard
to just the four factors listed in Barker. These factors are
important to consider but I think it was a mistake in
Barker to limit our consideration to these factors given the
difficulty of deciding whether errors during the sentencing
phase of the trial affected the sentence.

7