## U NITED 

## S TATES 

## A IR 

## F ORCE 

## C OURT OF 

## C RIMINAL 

## A PPEALS

_______ _______ __________ No. ACM 

### 39578

_______ _______ __________ UNITED STATES Appellee

v. Daniel C

. MORTON, II Staff Sergeant (E

- 5 ) , U.S. Air Force, Appellant

_______ _______ __________ Appeal from the United States Air Force Trial Judiciary
Decided 24 January 2020

_______ _______ __________ Military Judge: Joseph S. Imburgia

. Approved sentence: Bad

- conduct discharge, confinement for 45 days
, and reduction to E

- 1

. Sentence adjudged 22 August 2018 by G CM convened Joint Base Pearl Harbor

- Hickam , Hawaii

. For Appellant: Captain M. D e d ra C ampbell , USAF

. For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF ; Major A nne M. D elmare , USAF ; Mary Ellen Payne, Esquire.
Before MINK
, LEWIS
, and RAMÍREZ

, Appellate Military Judges

. Judge RAMÍREZ delivered the opinion of the c ourt, in which Senior Judge Mink and Judge LEWIS joined

.

________________________ This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 30 .4.

________________________ RAMÍREZ , Judge:
A general court

- martial composed of officer members convicted Appellant, contrary to his pleas
, of one specification of wr ongful use of cocaine on divers occasions, in violation of Article 112a, Uniform Code of Military JusticeUnited States v. Morton , No. ACM 

### 39578

2 (UCMJ), 10 U.S.C. §912 a

. 1 He was found not guilty of one specification of wrongful use of 3,4

- methylenedioxymethamphetamine. The court

- martial sentenc ed Appellant to a b ad

- conduct discharge, confinement for 45 days, and reduction to the grade of E

- 1

. The convening authority approved the adjudged sentence. Appellant raises one issue on appeal : whether the military judge’s admission of P rosecution E xhibit 6 during the pre

- sentencing phase of the court

- martial constituted plain error

. 2 Additionally, in a footnote Appellant notes an issue concerning his clemency request
, but concedes th at he was not materially prejudiced

. We find no prejudicial error i n any of the raised or non

- raised issues and affirm. 3

I. B ACKGROUND During the trial, Appellant stipulated that he tested positive for 3,4

- methylenedioxymethamphetamine on one occasion, and that he tested positive for cocaine on four occasions. T he D efense attacked the mens rea required to be found guilty ; h owever, officer members found Appellant guilty of the wrongful use of cocaine on divers occasions

. During the pre

- sentencing phase of the court

- martial, the P rosecution offered four exhibits which consi sted of A ppellant’s personal data sheet ; enlisted performance reports ; two records of non

- judicial punishment ; and the exhibit at issue (Pros ecution Exhibit 6)
, a letter of admonishment (LOA) , which consisted of 22 pages. The actual exhibit begins with the LOA itself, which is dated 13 May 2016. It also includes Appellant’s response to the LOA. The remain ing

1 All references in this opinion to the Uniform Code of Military Justice and Rules for Courts

- Martial (R.C.M.) are to the Manual for Courts

- Martial
, United States (2016 ed.).

2 Appellant raises this issue
, personally
, pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982).

3 Although not raised by the A ppellant, we also noted and considered that, contrary to R.C.M. 1103(i)(1)(B), the record of trial did not include a Defense’s Certificate of Review and therefore there is no evidence that it was sent to the trial defense counsel for examination prior to authentication . However, there is nothing in the record to indicate that allowing prior defense review would have resulted in unreasonable delay and t here is no indication that the record transcri pt is not accurate. The D efense had the authenticated record in time for review in connection with the staff judge advocate recommendation , made no objection, submitted clemency, and raised no error with the accuracy of the record of trial to the convening authority. Accordingly, we find no prejudice to Appellant.United States v. Morton , No. ACM 

### 39578

3 19 pages of Prosecution Exhibit 6 include a notification to Appellant’s commander t hat Appellant was past due on his M ilitary STAR C ard payment and ind ebted to t he Army and Air Force Exchange Service (AAFES) , a r eport showing money due on Appellant’s government travel card (GTC)
, and an a ccount

r einstatement f orm with Appellant’s GTC statement for the period of 21 January 2017 through 22 February 2017.
At the pre

- sentencing hearing , the G overnment offered Prosecution Exhibit 6. The military judge reviewed the document, confirmed that it was the same document that had previously been included in the record as Appellate Exhibit XV, then gave trial d efense c ounsel an opportunity to object. Initially trial d efense c ounsel objected on cumulative grounds ; h owever, the record is clear that trial d efense c ounsel thought it was duplicative of a different exhibit. After the military judge discussed the contents of the exhibit
, the trial defense counsel stated, “I’m sorry; that’s my mistake. No objection, Your Honor.” With no objection from the Defense, Prosecution Exhibit 6 was admitted
, the Government and Defense admitted the rest of their sentencing exhibits
, bot h sides made sentencing arguments , and the members deliberated. As previously indicated, the members sentenced Appellant to a bad

- conduct discharge, confinement for 45 days, and reduction to the grade of E

- 1

. Appellant now claims that the military judge’s admission of P rosecution E xhibit 6 during the pre

- sentencing phase of the court

- martial constituted plain error

.

II. D ISCUSSION
A. Law
While this Court review s a military judge ’ s decision to admit or exclude evidence for an abuse of discreti on , United States v. Erikson , 76 M.J. 231, 234 (C.A.A.F. 2017) (citation omitted) , w hen an appellant does not raise an objection to the admission of evidence during trial, this c ourt first determine s whether the appellant waived or forfeited th at objection

. United States v. Jones , 78 M.J. 37, 44 (C.A.A.F. 2018) (citation omitted)

. Whether an accused has waived or instead forfeited an issue is a question of law this court review s de novo. United States v. Ahern , 76 M.J. 194, 197 (C.A.A.F. 2017) (citation omitted)

.

“ [ F ] orfeiture is the failure to make the timely assertion of a right

. . . . ” Id. (quoting United States v. Gladue , 67 M.J. 311, 313 (C.A.A.F. 2009)). We review forfeited issues for plain error

. Id. (citing Gladue , 67 M.J. at 313). To prevail under a plain error analysis, an appellant must show (1) there was error; (2) which was plain or obvious; and (3) the error materially prejudiced the appellant’s substantial right. United States v. Erickson , 65 M.J. 221, 223 (C.A.A.F. 2007) (citations omitted)

.United States v. Morton , No. ACM 

### 39578

4 “W aiver ,” on the other hand, “ is the intentional relinquishment or abandonment of a known right. ” Id

. (quoting Gladue , 67 M.J. at 313). With waiver, there is no error to correct on appeal. Id

. (citing United States v. Campos , 67 M.J. 330, 332 (C.A.A.F. 2009)).

“ A forfeiture is

. . . an oversight

. ” United States v. Campos , 67 M.J. 330, 332 (C.A.A.F. 2009) (quoting United States v. Cook , 406 F.3d 485, 487 (7th Cir. 2005)). “[A] w aiver is a deliberate decision not to present a ground fo r relief that might be available in the law.” Id.
B. Analysis Appellant asserts the plain error analysis applies, but does not mention either forfeiture or waiver. Appellant claims the military judge committed plain error because Prosecution Exhibit 6 did not fall under Rule for Courts

Martial ( R.C.M. ) 1001(b)(2) or R .C.M. 1001(b)(4) , and it consisted of more than just an LOA

. The Government argues that waiver applies because Appellant waived th e issue when trial defense counsel affirmatively stated on the record that the Defense had no objections to the proffered Prosecution Exhibit 6.
Based on the record before this Court , t he Defense waived this issue

. This Court relies on five, non

- exhaustive factors when considering whether waiver has been clearly established and there is an intentional relinquishment or abandonment of a known right or privilege. United States v. Monarque
, No. ACM S32412, 2017 CCA LEXIS 245
, at * 10 (A.F. Ct. Crim. App. 6 Mar. 2017) (unpub. op.) . Those factors include “ (1) whether the right was a known right or privilege at the time of the waiver; (2) whether the waiver was part of the defense’s trial strategy; (3) whether the defense had knowledge of the proffered evidence and had time and opportunity to review it; (4) whether the defense was given an opportunity to object to the admissibility of the evidence; and (5) whether the appellant now raises ineffective assistance of counsel with regard to the issue of waiver. ” Id

. Here, (1) the military judge asked the D efens e if there was an objection, therefore, the D efense knew any objection was a known right; (2) there is no evidence before the c ourt to determine whether the waiver was part of the D efense’s trial strategy , but the record reflects the Defense thought about t he objection as well as articulated an initial objection, stating “Your Honor, the only objection that we have is it’s sort of cumulative because it seems that he received an LOA for the same incident that he received an Article 15 for; the initial one, wh ere they charged him with a violation of Article 123a[
, UC MJ ]”before changing his mind, explaining, “I’m sorry; that’s my mistake. No objection, Your Honor [ ; ] ” and (3) based on the record of trial, it is clear that t he D efense had knowledge of the proffered ev idence as it was also an appellateUnited States v. Morton , No. ACM 

### 39578

5 exhibit ( Appellate Exhibit XV) and had time and opportunity to review it . Specifically to this third factor , prior to calling Appellant to testify, trial d efense

c ounsel requested a hearing outside the presence of the mem bers during an Article 39 (a), UCMJ, 10 U.S.C. § 839, session. At the Article 39 (a) session, trial d efense c ounsel objected to potential cross

- examination of Appellant dealing with the underlying information in Appellate Ex hibit XV/Pros ecution Ex hibit 6 based on M il. R. Evid. 404(b) and M il. R. Evid. 403 . The record was clear that the Defense had received the documents as part of discovery, which prompted the trial objection . As for factor (4)
, the record is clear that the military judge gave the D efen se an oppor tunity on the record to object to the admissibility of the evidence; and (5)
, Ap pellant does not rais e ineffective assistance of counsel with regard to the issue of waiver. The Defense not only declined to object upon receiving notice of the ex hibit for sentencing purposes, but t rial d efense c ounsel affirmatively told the military judge the Defense did not object to the evidence. T he United States Court of Appeals for the Armed Forces has explained that under the ordinary rules of waiver, an a pp ellant ’ s affirmative statements that he had no objection to the admission of evidence “ operate [ s ] to extinguish his right to complain about the evidence’s admission on appeal. ” Ahern , 76 M.J. at 198 (citing Campos , 67 M.J. at 332

– 33) (“finding waiver where appellant stated that he had ‘no objection’ to the admission of testimony”) (additional citation omitted)

. This c ourt acknowledges that w hether a right is waivable; whether an appellant must personally participate in the waiver; whet her procedures are required for waiver; and whether an appellant’s choice must be particularly informed or voluntary, will depend on the right at stake. Id . at 197 ( citing United States v. Girouard , 70 M.J. 5, 10 (C.A.A.F. 2011))

. U nder the particular fac ts of this case
, we find the Defense’s affirmativedecision not to object to the Government’s exhibit is a situation where the ordinary rules of waiver apply. As such, the Defense waived this issue. Separately, we recognize our authority under Article 66, UCMJ, 10 U.S.C. § 866, to pierce a waiver in order to correct a legal error. Se e United States v. Hardy , 77 M.J. 438, 443 (C.A.A.F. 2018). We decline to exercise our Article 66(c) authority to pierce this waived issue.

III. C ONCLUSION The approved findings and sentence are correct in law and fact, and no error materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).United States v. Morton , No. ACM 

### 39578

6 Accordingly, the findings and the sentence are AFFIRMED

.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court