United States v. Gomez

This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________

UNITED STATES
Appellee
v.
Omar M. GOMEZ, Boatswain’s Mate Second Class
United States Coast Guard, Appellant
No. 16-0336
Crim. App. No. 1394
Argued October 26, 2016—Decided January 30, 2017
Military Judge: Christine N. Cutter
For Appellant: James S. Trieschmann, Esq. (argued); Lieu-
tenant Jason W. Roberts.
For Appellee: Lieutenant Tereza Z. Ohley (argued); Stephen
P. McCleary, Esq. (on brief).
Judge OHLSON delivered the opinion of the Court, in
which Chief Judge ERDMANN and Judges RYAN and
SPARKS joined. Judge STUCKY filed a separate opin-
ion concurring in the result.
_______________

Judge OHLSON delivered the opinion of the Court.

Contrary to his pleas, a general court-martial with en-
listed representation convicted Appellant of aggravated sex-
ual assault, aggravated sexual contact, and indecent expo-
sure, in violation of Article 120, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 920 (2006). The court-martial
also convicted Appellant of violating a lawful general order
by engaging in sexual harassment, maltreatment, making a
false official statement, aggravated sexual contact, abusive
sexual contact, and committing a general disorder by using a
female Guardsman’s camera without her consent to photo-
graph his penis, in violation of Articles 92, 93, 107, 120, and
134, UCMJ, 10 U.S.C. §§ 892, 893, 907, 920, 934 (2012). The
convening authority approved Appellant’s adjudged sentence
of confinement for eight years, a reduction to E-1, and a dis-
honorable discharge. The United States Coast Guard Court
of Criminal Appeals (CCA) affirmed the approved findings
and sentence.
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Opinion of the Court

We granted review to consider the following issue:
Whether the military judge erred by permit-
ting two complaining witnesses to testify on
sentencing that Appellant was responsible for
their pregnancy complications with no evi-
dence connecting his misconduct to the compli-
cations.
United States v. Gomez, 75 M.J. 307 (C.A.A.F. 2016). We
hold that Appellant has failed to meet his burden under the
plain error standard because (1) he has not demonstrated
prejudice with respect to the military judge’s admission of
one victim’s testimony, and (2) he has not demonstrated
clear or obvious error with respect to the military judge’s
admission of the other victim’s testimony. Accordingly, we
affirm the CCA’s decision.
I. Background
Appellant was a petty officer (E-5) aboard the United
States Coast Guard Cutter (USCGC) Gallatin (WHEC-721).
He supervised three female members of the USCGC Gal-
latin’s deck force, including Coast Guardsmen SW and MS.
As to these three subordinates, Appellant was charged with
offenses related to touching their buttocks, breasts and/or
vaginal areas. Appellant also was charged with making sex-
ual comments to a fourth female subordinate who was out-
side of his direct chain of command.
Besides this misconduct toward his crew, Appellant also
was charged with sexually assaulting the civilian girlfriend
of another USCGC Gallatin crew member. The assault oc-
curred while the civilian was sleeping next to her boyfriend.
The civilian awoke to Appellant’s penis in her vagina. Appel-
lant admitted to a Coast Guard Investigative Services spe-
cial agent that he had “a recollection of … having sex with a
faceless female in [his crew member’s] apartment” and the
woman “must have been” the civilian.
The court-martial convicted Appellant of committing an
aggravated sexual assault against the civilian and a number
of offenses against the four female USCGC Gallatin crew
members. With regard to SW, the court-martial convicted
Appellant of one specification of maltreatment and two spec-
ifications of aggravated sexual contact. With regard to MS,

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Opinion of the Court

the court-martial found Appellant guilty of one specification
of abusive sexual contact and one specification of wrongfully
appropriating her camera to take a picture of his penis.
At sentencing, the victims testified about the impact that
the crimes and the trial process had on them. Trial counsel
elicited the following information from SW:
Q. [C]an you tell this panel how the crimes that the
accused, excuse me, the convicted has perpetrated
upon you as it impacts your life?
A: Um, it’s definitely impacted tremendously. I uh,
it’s really hard going home to my family and you
know, having to lie to them, tell them I’m going to
training because I’m here. Because they don’t
know. And um, it’s hard to see my baby, because he
was born premature, so, the whole July thing, it’s
early. It was early. It’s just, it’s really hard.
Q: Do you believe stress had something to do with?
[sic]
A: I was diagnosed with pre-eclampsia, which is
brought on by stress.
Q: Do you believe that this trial and this process
has caused you to have stress?
A: Yes.
Defense counsel did not object to this testimony or cross-
examine SW.
Trial counsel elicited the following information from MS:
Q. [H]as this been a stressful process for you, going
through a trial?
A: It has. It’s, it’s been very stressful. I’m more ag-
gressive, I’m more angry, I’m more detached from
….
Q: And has the stress had any impact on your
pregnancy?
A: It did, and I’m also getting help for that, um, it
could be for, and, the stress from this case and I
found out that early on that I was supposed to have
twins and one didn’t make it. And with more stress
from this case, I was worried for this baby that was
living inside me, hopefully hoping that this stress
didn’t make his heart rate go up, or hopefully I was
protecting him, and every time I would always go to

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Opinion of the Court

the doctor to see my blood pressure, always ask
questions if my son was okay, because that’s my,
that’s my baby.
Defense counsel did not object to this testimony or cross ex-
amine MS.
During presentencing arguments, neither party men-
tioned SW’s pregnancy. However, trial counsel briefly men-
tioned MS’s pregnancy by noting that Appellant’s unsworn
statement failed to include an apology “for causing stress
during her pregnancy.” Trial counsel then requested that
the members sentence Appellant “to a term between twenty
and thirty years imprisonment and a dishonorable dis-
charge.” The defense “urge[d] … no more than five years
confinement.” The maximum punishment for all offenses of
conviction was confinement for 120 years and 4 months, for-
feiture of all pay and allowances, a fine, a reduction to E-1,
and a dishonorable discharge. The members ultimately sen-
tenced Appellant to confinement for eight years, a reduction
to E-1, and a dishonorable discharge.
II. Discussion
We granted review to determine whether the military
judge erred by permitting SW and MS to testify at presen-
tencing that Appellant was responsible for their pregnancy
complications “without any evidence connecting his miscon-
duct to [their] complications.” See Gomez, 75 M.J. at 307.
Because Appellant did not object to SW’s or MS’s testi-
mony, we apply the plain error framework in addressing
that question. See United States v. Maynard, 66 M.J. 242,
244 (C.A.A.F. 2008). Thus, Appellant bears the burden of
establishing the following three prongs: (1) there was error;
(2) the error was clear or obvious; and (3) the error material-
ly prejudiced a substantial right. United States v. Knapp,
73 M.J. 33, 36 (C.A.A.F. 2014). “As all three prongs must be
satisfied …, the failure to establish any one of the prongs is
fatal to a plain error claim.” United States v. Bungert,
62 M.J. 346, 348 (C.A.A.F. 2006). As we explain below, Ap-
pellant has not established the prejudice prong for the tes-
timony of SW, or the clear or obvious prong for the testimo-
ny of MS.

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Opinion of the Court

A. SW
Turning first to SW, the record reflects that she sought to
make several points in the course of her brief testimony: the
trial process caused her stress; stress causes preeclampsia; 1
she experienced preeclampsia during her pregnancy; and the
preeclampsia caused her child to be born prematurely. In
terms of whether SW’s testimony was properly admissible,
we first note that the Government may introduce evidence of
aggravating circumstances pertaining to the “medical im-
pact on … any person or entity who was the victim of an of-
fense committed by the accused,” Rule for Courts-Martial
1001(b)(4); these aggravating circumstances can include “the
effect of the process” on the victim, United States v. Ste-
phens, 67 M.J. 233, 235 (C.A.A.F. 2009); and they also can
encompass the harm inflicted on the victim’s family, such as
a child, United States v. Wilson, 35 M.J. 473, 476 (C.M.A.
1992). On its face then, it would appear that SW’s testimony
was admissible when viewed purely in the context of the
type of evidence that can be properly introduced in aggrava-
tion during the presentencing phase of a court-martial.
However, when viewed in a broader context, three con-
cerns immediately arise regarding the admissibility of SW’s
testimony. Namely, it would appear that SW was either: (1)
providing the panel members with a diagnosis that she had
reached on her own without possessing the necessary medi-
cal expertise to do so; or (2) providing the panel members
with expert testimony about her medical condition without
the proper foundation being laid for her qualifications to do
so; or (3) repeating as hearsay some statements that her
doctor had made to her. Under any of these three scenarios,
SW’s testimony was inadmissible. See Military Rule of Evi-
dence (M.R.E.) 701(c); M.R.E. 702; M.R.E. 802; see also
Felkins v. City of Lakewood, 774 F.3d 647, 652 (10th Cir.
2014) (noting that lay witness may describe injuries and
symptoms but may not provide a medical diagnosis or ex-

1 The accuracy of this assertion is subject to medical debate.
See Preeclampsia, MedlinePlus,
https://www.nlm.nih.gov/medlineplus/ency/article/000898.htm
(last visited Jan. 17, 2017) (stating that the “exact cause of
preeclampsia is unknown”).

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Opinion of the Court

plain medical causation); Wingster v. Head, 318 F. App’x
809, 815 (11th Cir. 2009) (“[M]edical causation issue pre-
sents a technical and scientific issue that requires the spe-
cialized knowledge of an expert medical witness.”).
Despite these concerns, however, we note that whether
this testimony constituted clear or obvious error is a close
question. SW’s testimony about her pregnancy complications
was fleeting and somewhat disjointed. Therefore, it is argu-
able whether the M.R.E. 701, M.R.E. 702, or hearsay prob-
lems should have been evident to the military judge at trial.
However, we ultimately conclude that we need not resolve
this issue because even assuming that there was clear or ob-
vious error here, Appellant was not prejudiced by the admis-
sion of SW’s testimony.
In order to establish prejudice, Appellant must demon-
strate that SW’s testimony “substantially influenced the ad-
judged sentence.” United States v. Eslinger, 70 M.J. 193,
200–01 (C.A.A.F. 2011) (citation omitted) (internal quotation
marks omitted). “We evaluate prejudice from an erroneous
evidentiary ruling by weighing (1) the strength of the Gov-
ernment’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.” United States v. Kerr, 51 M.J. 401,
405 (C.A.A.F. 1999) (citing United States v. Weeks, 20 M.J.
22, 25 (C.M.A. 1985)); see also United States v. Latorre,
53 M.J. 179, 182 & n.7 (C.A.A.F. 2000). We conclude that
these factors weigh against finding prejudice for three rea-
sons.
First, the Government presented a strong sentencing
case in aggravation. The court-martial convicted Appellant
of serious offenses involving the sexual assault of a sleeping
civilian and Appellant’s repeated abuse of his petty officer
rank to maltreat/sexually harass and sexually assault four
subordinates, including while onboard the USCGC Gallatin
and during port calls. See Eslinger, 70 M.J. at 201 (examin-
ing the severity of the offenses of conviction). Indeed, many
of the guilty findings were supported by Appellant’s admis-
sion of misconduct. Moreover, even disregarding SW’s testi-
mony about her pregnancy complications, the record reflects
that some of the victims, particularly the civilian, provided

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Opinion of the Court

compelling testimony about the serious impact that Appel-
lant’s crimes had on them.
Second, SW never explicitly told the panel members how
prematurely her baby was born, nor did she testify about
whether the preeclampsia and premature birth resulted in
any childbirth complications or led to any adverse health
consequences for the baby. Based on the omission of these
details, the evidence of the premature birth was not particu-
larly aggravating. This conclusion is further supported by
the fact that trial counsel did not exploit or even mention
SW’s pregnancy complications in presentencing argument.
See United States v. Barnes, 33 M.J. 468, 474 (C.M.A. 1992)
(finding no prejudice in part because improper aggravation
evidence “was mentioned only briefly” in sentencing argu-
ment).
Third, the members’ ultimate sentencing decision indi-
cates that they were not influenced by SW’s testimony about
her pregnancy complications. The members returned a sen-
tence of confinement for eight years, a reduction to E-1, and
a dishonorable discharge. This sentence was much closer to
the defense’s request that Appellant receive “no more than
five years confinement” than it was to trial counsel’s re-
quested punishment of twenty to thirty years imprisonment,
or to the maximum punishment, which included confine-
ment for 120 years and 4 months. See Eslinger, 70 M.J. at
201; Barnes, 33 M.J. at 474 (noting that a sentence far below
the maximum suggested that “scant attention was paid” to
improper aggravation evidence).
Consequently, we hold that there is an insufficient basis
to conclude that SW’s testimony about her pregnancy com-
plications substantially influenced the members’ sentencing
decision. Accordingly, we further hold that Appellant has
not met his burden under the third prong of the plain error
test because he has not established that any error that oc-
curred regarding the admission of SW’s testimony material-
ly prejudiced a substantial right.
B. MS
Turning to the admission of MS’s testimony, we conclude
that Appellant has not met his burden under the second
prong of the plain error test. When examining this prong, we

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Opinion of the Court

ask whether the error was so obvious “in the context of the
entire trial” that “the military judge should be ‘faulted for
taking no action’ even without an objection.” United States v.
Burton, 67 M.J. 150, 153 (C.A.A.F. 2009) (quoting Maynard,
66 M.J. at 245); see also United States v. Frady, 456 U.S.
152, 163 (1982) (noting that error is clear if “the trial judge
and prosecutor [would be] derelict in countenancing it, even
absent the defendant’s timely assistance in detecting it”).
We do not find a sufficient basis to fault the military
judge for failing to intervene during MS’s presentencing tes-
timony because MS’s testimony was patently ambiguous.
When trial counsel asked MS whether the stress from the
trial process affected her pregnancy, she responded:
It did, and I’m also getting help for that, um, it
could be for, and, the stress from this case and I
found out that early on that I was supposed to have
twins and one didn’t make it. And with more stress
from this case, I was worried for this baby that was
living inside me, hopefully hoping that this stress
didn’t make his heart rate go up, or hopefully I was
protecting him, and every time I would always go to
the doctor to see my blood pressure, always ask
questions if my son was okay, because that’s my,
that’s my baby.
Simply stated, even after analyzing this statement at length
on the written page it is difficult to discern what MS was
trying to convey; it would have been exponentially more dif-
ficult for the military judge to do so while listening to the
testimony only once in the midst of the fast-moving presen-
tencing process, particularly where the defense made no ob-
jection. Cf. United States v. Carpenter, 51 M.J. 393, 397
(C.A.A.F. 1999) (citation omitted) (internal quotation marks
omitted) (noting in prosecutorial misconduct context that
failure to object is “some measure” of “minimal impact”);
United States v. Madsen, 809 F.3d 712, 718 (1st Cir. 2016)
(“[W]e cannot simply assume, in the absence of a contempo-
raneous objection, that the jury interpreted the prosecutor’s
words in the worst possible light.”).
On one hand, MS may have been seeking to make the
point that the trial process caused her stress and this stress
caused her to miscarry a twin. If so, this point would likely
have been highly damaging to Appellant’s sentencing case,

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Opinion of the Court

and the same question raised about SW’s testimony—was
there an appropriate evidentiary basis to admit such medi-
cal testimony—would obviously present itself. On the other
hand, however, MS may instead have been reporting that
she had miscarried one twin due to reasons unconnected to
Appellant’s conduct or to the trial process, and she was wor-
ried that the stress associated with the case might harm her
remaining unborn child. If MS intended to convey this latter
point, it was not error for the military judge to admit her
testimony. (As noted above, we permit aggravation evidence
about the impact of the trial process, see Stephens, 67 M.J.
at 235, and about the harm to the victim’s family, see Wil-
son, 35 M.J. at 476.) Therefore, because MS’s testimony was
subject to two plausible interpretations—one of which ren-
ders the testimony admissible—we cannot conclude that the
military judge clearly or obviously erred in admitting it. See
United States v. Holman, 840 F.3d 347, 355 (7th Cir. 2016)
(holding that “any ambiguity with respect to the district
court’s statements is debatable at most and thus does not
rise to level of plain error”); United States v. Etienne,
772 F.3d 907, 916 (1st Cir. 2014) (refusing on plain error re-
view to permit appellant “to gain any benefit from his choice
not to clarify the ambiguity” in witness’s testimony); United
States v. Rose, 587 F.3d 695, 701 (5th Cir. 2009) (discerning
no clear error where evidence was ambiguous).
III. Decision
Because there was no plain error in admitting the testi-
mony of SW and MS, we affirm 2 the decision of the United
States Coast Guard Court of Criminal Appeals.

2 We note that the CCA opinion erroneously states in part that
Appellant was convicted of three specifications of aggravated sex-
ual contact, in violation of Article 120, UCMJ, 10 U.S.C. § 920
(2012). Appellant was in fact charged with and convicted of one
specification of aggravated sexual contact and two specifications of
abusive sexual contact, in violation of Article 120, UCMJ,
10 U.S.C. § 920 (2012).

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Judge STUCKY, concurring in the result.

As Appellant failed to timely object to the testimony of
SW and MS, the majority correctly reviewed its admission
for plain error. Failure to establish any one of the three
prongs of the plain error standard is fatal to such a claim.
United States v. Bungert, 62 M.J. 346, 348 (C.A.A.F. 2006).
As Appellant failed to establish prejudice—the third prong
of the plain error standard—from the admission of the tes-
timony at issue, I see no reason to examine the other two
prongs—whether there was error that was clear or obvious.
Therefore, I concur in affirming the judgment of the United
States Coast Guard Court of Criminal Appeals.