This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

UNITED STATES

Appellee

v.

Rodney M. TYLER, Master Sergeant

United States Air Force, Appellant

No. 20-0252

Crim. App. No. 39572

Argued February 9, 2021—Decided April 26, 2021

Military Judges: Matthew D. Talcott (arraignment)

and Jefferson D. Brown (trial)

For Appellant: Captain Matthew L. Blyth (argued);

Lieutenant Colonel Todd J. Fanniff (on brief); Major 

Benjamin H. DeYoung and Major David A. Schiavone.

For Appellee: Major Dayle P. Percle (argued); Lieutenant 

Colonel Matthew J. Neil and Mary Ellen Payne, Esq. (on 

brief).

Judge SPARKS delivered the opinion of the Court, in 

which Chief Judge STUCKY, and Judges OHLSON, 

MAGGS, and HARDY, joined. 

_______________

Judge SPARKS delivered the opinion of the Court.

Contrary to his pleas at a general court-martial, Appellant 

was convicted by a panel of officer members of one 

specification of aggravated sexual abuse of a child, two 

specifications of indecent liberty with a child, and one 

specification of an indecent act, in violation of Article 120, 

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920 

(2006 & Supp. V 2007–2012),1 and two specifications of sexual 

abuse of a child, in violation of Article 120b, UCMJ, 10 U.S.C. 

 1 These statutory provisions are reprinted in the Manual for 

Courts-Martial, United States, Punitive Articles Applicable to 

Sexual Offenses Committed During the Period 1 October 2007 

Through 27 June 2012 app. 21 at A21-1 to A21-2 (2019 ed.).
United States v. Tyler, No. 20-0252/AF

Opinion of the Court

2

§ 920b (2012 & Supp. IV 2013–2017).2 The members 

sentenced Appellant to a bad-conduct discharge, confinement 

for four years and six months, and a reduction to E-4. The 

United States Air Force Court of Criminal Appeals affirmed 

the findings and sentence as approved by the convening 

authority. United States v. Tyler, No. ACM 39572, 2020 CCA 

LEXIS 106 at *32, 2020 WL 1541058, at *12 (A.F. Ct. Crim. 

App. Mar. 30, 2020) (unpublished). We granted review on the 

following issue:

Whether the military judge erred when he permitted 

trial counsel to argue facts not in evidence; namely, 

the unsworn victim impact statements which were 

not admitted as evidence under Rule for CourtsMartial 1001(b)(4).

United States v. Tyler, 80 M.J. 346 (C.A.A.F. 2020) (order 

granting review).

The military judge erred by ruling trial counsel could

argue the contents of the unsworn statements, admitted 

under Rule for Courts-Martial (R.C.M.) 1001A (2016), 

because the statements could have been admitted in the 

Government’s sentencing case-in-chief under R.C.M. 

1001(b)(4). Nonetheless, for the reasons set forth below, we 

conclude that the military judge arrived at the correct result 

in permitting trial counsel to comment on the unsworn victim 

statements during presentencing argument. Therefore, we 

affirm the decision of the lower court.

Background

Because the underlying facts leading to the charges and 

convictions in this case are not relevant to the sentencing 

issue before us, we need not engage in a lengthy recitation of 

Appellant’s misdeeds. In short, Appellant’s court-martial 

centered on his inappropriate actions toward his former 

stepdaughter, ML, and his biological daughter, MC, both of 

whom testified on the merits.

During presentencing, ML and MC elected to present 

unsworn victim statements pursuant to R.C.M. 1001A. Prior 

 2 These statutory provisions are reprinted in the Manual for 

Courts-Martial, United States, Punitive Articles Applicable to 

Sexual Offenses Committed Between 12 June 2012 and 31 

December 2018 app. 22 at A22-13 to A21-14 (2019 ed.).
United States v. Tyler, No. 20-0252/AF

Opinion of the Court

3

to the victims reading their statements, trial defense counsel 

objected to several portions of the statements for failing to 

comply with the requirements of R.C.M. 1001A. The military 

judge overruled the objection to ML’s statement. The military 

judge also overruled some of trial defense counsel’s objection 

to MC’s statement. To the portion where the military judge 

agreed with trial defense counsel’s objection, MC elected to 

amend her unsworn victim statement to conform to the 

military judge’s ruling. ML and MC then provided oral 

unsworn victim statements to the members.

During sentencing instructions, the military judge 

instructed the members on how they were to consider the 

unsworn victim statements:

 The court will not draw any adverse inference 

from the fact that a victim has elected to make a 

statement in sentencing which is not under oath. An 

unsworn statement is an authorized means for a 

victim to bring certain information to the attention 

of the court and must be given appropriate 

consideration. This information may be considered 

by you solely to evaluate the impact of the Accused’s 

crimes on these victims, if any, or mitigating 

matters. The victim cannot be cross-examined by 

counsel, or interrogated by court members or me 

upon an unsworn statement, but counsel may offer 

evidence to rebut statements of fact contained in it. 

The weight and significance to be attached to an 

unsworn statement rests within the sound 

discretion of each court member. You may consider 

the statement is not under oath, its inherent 

probability or improbability, whether it is supported 

or contradicted by evidence in the case, as well as 

any other matter that may have a bearing upon its 

credibility. In weighing an unsworn statement, you 

are expected to use your common sense and your 

knowledge of human nature and the ways of the 

world.

The Government commented on the contents of the 

unsworn victim statements during its presentencing 

argument. Trial defense counsel objected, arguing that

“[s]imply reference to [a victim’s unsworn statement] is 

certainly permissible. But arguing it as if it’s evidence is ... 

where it crosses the line.” The military judge overruled the 

objection and permitted trial counsel to comment on the 
United States v. Tyler, No. 20-0252/AF

Opinion of the Court

4

unsworn victim statements because, in his view, it was the 

“same information that would otherwise be properly 

admissible if offered in the Government’s [sentencing] casein-chief.”

Discussion

Appellant argues that the military judge erred by ignoring

the distinctions between R.C.M. 1001A and R.C.M. 1001(b)(4) 

when he permitted trial counsel to comment on the victims’

unsworn statements during presentencing argument.

Improper argument involves a question of law that we 

review de novo. United States v. Frey, 73 M.J. 245, 248 

(C.A.A.F. 2014). Typically, “trial counsel is ... prohibited from 

injecting into argument irrelevant matters, such as personal 

opinions and facts not in evidence.” United States v. Schroder, 

65 M.J. 49, 58 (C.A.A.F. 2007). However, trial counsel is 

entitled “to argue the evidence of record, as well as all 

reasonable inferences fairly derived from such evidence.” 

United States v. Baer, 53 M.J. 235, 237 (C.A.A.F. 2000).

In 2013, Congress revised presentencing procedures by 

enacting Article 6b(a)(4)(B), UCMJ, 10 U.S.C. 

§ 806b(a)(4)(B),3 to give a victim the right to be “reasonably 

heard” at “[a] sentencing hearing” concerning the offense of 

which he or she is the victim. The President promulgated 

R.C.M. 1001A to “facilitate[] the statutory right ‘to be 

reasonably heard.’ ” United States v. Hamilton, 78 M.J. 335, 

339 (C.A.A.F. 2019) (internal quotation marks omitted) 

(quoting United States v. Barker, 77 M.J. 377, 378 (C.A.A.F. 

2018)). A victim may make a sworn or unsworn statement 

during sentencing in a noncapital case. R.C.M. 

1001A(b)(4)(B).

Separately, R.C.M. 1001(b)(4) governs what the 

prosecution may present as evidence in aggravation during 

presentencing, and permits trial counsel to “present evidence 

as to any aggravating circumstances directly relating to or 

resulting from the offenses of which the accused has been 

found guilty.” R.C.M. 1001A “belongs to the victim, and is 

separate and distinct from the government’s right to offer 

 3 National Defense Authorization Act for Fiscal Year 2014, Pub.

L. No. 113–66, § 1701, 127 Stat. 672, 952 (2013).
United States v. Tyler, No. 20-0252/AF

Opinion of the Court

5

victim impact statements in aggravation, under R.C.M. 

1001(b)(4).” Barker, 77 M.J. at 378.

The Government did not offer the statements under 

R.C.M. 1001(b)(4). Instead, the statements were admitted as 

court exhibits by the military judge pursuant to R.C.M. 

1001A. The military judge erred in reasoning that trial 

counsel can argue the content of the unsworn statements

simply because they could have been admitted as substantive 

evidence under R.C.M. 1001(b)(4). R.C.M. 1001A belongs to 

the victim and is separate and distinct from R.C.M. 

1001(b)(4). Barker, 77 M.J. at 378. We may, however, affirm 

if the military judge arrived at the correct result, even if for 

the wrong reason. See United States v. Robinson, 58 M.J. 429, 

433 (C.A.A.F. 2003) (affirming a military judge’s denial of a 

motion to suppress evidence where “the military judge 

reached the correct result, albeit for the wrong reason”).

Ultimately, the military judge permitted trial counsel to 

comment on the unsworn victim statements during 

sentencing argument. The question now before us is, was this 

the correct result?

If unsworn victim statements are part of the evidence of 

record, they can be commented on by counsel in presentencing 

argument. Baer, 53 M.J. at 237. In Hamilton, we explained:

[T]he Military Rules of Evidence are applicable to 

sentencing [and] thus provid[e] procedural 

safeguards to ensure the reliability of evidence 

admitted during sentencing ... unsworn victim 

impact statements are uniquely situated in the 

substrate of the sentencing process. The plain 

language of R.C.M. 1001A (2016) clearly 

contemplates that at least some of the Military 

Rules of Evidence are inapplicable to victim impact 

statements.

78 M.J. at 342 (internal quotation marks omitted) (citation 

omitted).

In Hamilton, however, we did not decide the full extent to 

which the Military Rules of Evidence may or may not apply 

to unsworn victim statements. Id. In the instant case, both 

parties agree that the Military Rules of Evidence are 

inapplicable to unsworn victim statements. For the reasons 

that follow, we agree.
United States v. Tyler, No. 20-0252/AF

Opinion of the Court

6

Procedurally, the R.C.M. 1001A(b)(4)(B) right of a victim 

to make an unsworn statement is akin to an accused’s R.C.M. 

1001(c)(2)(C) right to make an unsworn statement. Like an 

accused, a victim may, personally or through counsel, make 

an unsworn statement orally, in writing, or both, and may not 

be cross-examined or examined by the court upon it. R.C.M. 

1001A(e); cf. R.C.M. 1001(c)(2)(C) (unsworn statement by an 

accused may be made personally or though counsel, and it 

may be made orally, in writing, or both, and may not be crossexamined or examined by the court upon it).

Article 42(b), UCMJ, 10 U.S.C. § 842(b) (2012), requires a 

witness to be sworn prior to giving testimony at a courtmartial. A victim exercising their right to be reasonably heard 

at a sentencing proceeding under Article 6b, UCMJ, through 

the procedure established by R.C.M. 1001A, however, “is not 

considered a witness for the purposes of Article 42(b), 

[UCMJ].” R.C.M. 1001A(a). This non-witness designation 

strips an unsworn victim statement of its testimonial status, 

which removes it from the purview of the Military Rules of 

Evidence. In the accused unsworn statement context, we have

stated, “[t]he truth of the matter is that these statements are 

not made under oath and, thus, the ‘unsworn statement is not 

evidence.’ ” United States v. Marsh, 70 M.J. 101, 104 (C.A.A.F. 

2011) (internal quotation marks omitted) (quoting United 

States v. Breese, 11 M.J. 17, 24 (C.M.A. 1981)). Likewise, 

unsworn victim statements are not made under oath, and are 

thus not evidence.

Although the unsworn victim statement is not subject to 

the Military Rules of Evidence, this does not mean that the 

military judge is powerless to restrict its contents. In 

Hamilton, 78 M.J. at 342, we cautioned that R.C.M. 1001A is 

“not a mechanism whereby the government may slip in 

evidence in aggravation that would otherwise be prohibited 

by the Military Rules of Evidence.” Instead, the military judge 

has an obligation to ensure the content of a victim’s unsworn 

statement comports with the parameters of victim impact or 

mitigation as defined by R.C.M. 1001A. See R.C.M. 1001A 

Discussion (“A victim’s unsworn statement should not exceed 

what is permitted under R.C.M. 1001A(c) .... Upon objection 

by either party or sua sponte, a military judge may stop or 

interrupt a victim’s unsworn statement that includes matters 
United States v. Tyler, No. 20-0252/AF

Opinion of the Court

7

outside the scope of R.C.M. 1001A(c).”). While the military 

judge is the gatekeeper for unsworn victim statements, an 

accused nonetheless has a duty to state the specific ground 

for objection in order to preserve a claim of error on appeal. 

This procedure was followed in the instant case when trial 

defense counsel objected to portions of the unsworn 

statements for failing to comply with R.C.M. 1001A.

The next question is whether an unsworn victim 

statement, although not evidence, can nevertheless be 

commented on in presentencing argument.

“Ordinary rules of statutory construction apply in 

interpreting the R.C.M.” United States v. Hunter, 65 M.J. 399, 

401 (C.A.A.F. 2008). It is a general rule of statutory 

construction that if a statute is clear and unambiguous—that 

is, susceptible to only one interpretation—we use its plain 

meaning and apply it as written. United States v. Kohlbek, 78 

M.J. 326, 331 (C.A.A.F. 2019); United States v. Clark, 62 M.J. 

195, 198 (C.A.A.F. 2005). We may also resort to case law to 

resolve any ambiguity, although fundamentally “case law 

must comport with [the statute], not vice versa.” United 

States v. Warner, 62 M.J. 114, 120 n.30 (C.A.A.F. 2005). “We 

assume that Congress is aware of existing law when it passes 

legislation.” United States v. McDonald, 78 M.J. 376, 380 

(C.A.A.F. 2019) (internal quotation marks omitted) (quoting 

Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990)).

R.C.M. 1001(a) establishes a general sequence of 

presentencing matters. Specifically, the prosecution starts by 

providing service data and personal data relating to the 

accused and the character of his or her prior service, evidence 

of prior convictions, evidence of aggravation, and evidence of 

rehabilitative potential. R.C.M. 1001(a)(1)(A). The 

prosecution’s sentencing case is followed by the victim’s right 

to be reasonably heard pursuant to R.C.M. 1001A. R.C.M. 

1001(a)(1)(B). Finally, the defense presents evidence in 

extenuation or mitigation. R.C.M. 1001(a)(1)(C). Importantly, 

R.C.M. 1001(g), permits counsel, “[a]fter introduction of 

matters relating to sentence” to “argue for an appropriate 

sentence.”

The plain language of R.C.M. 1001(g) and its use of the 

term “matters,” which encompasses an unsworn victim 
United States v. Tyler, No. 20-0252/AF

Opinion of the Court

8

statement, implies that presentencing argument may include 

comment on a victim’s unsworn statement. Kohlbek, 78 M.J. 

at 331. Presentencing argument commenting on the unsworn 

victim statement asks the military judge or the panel to 

sentence an accused based upon a “matter[]” already properly 

before them. Our previous case law comports with the view 

that presentencing argument may include comment on the

victim’s unsworn statement. As noted above, while it is true 

that typically, “trial counsel [are] prohibited from injecting 

into argument irrelevant matters, such as personal opinions 

and facts not in evidence,” Schroder, 65 M.J. at 58, this Court 

has recognized that there are certain exceptions to the rule. 

One such exception is for an accused’s unsworn statement, 

where despite the fact the statement is not evidence, it is still

“subject to ... comment during the Government’s closing 

argument.” United States v. Barrier, 61 M.J. 482, 484 

(C.A.A.F. 2005). Again, the victim’s right to make an unsworn 

statement is procedurally akin to the accused’s right of 

allocution. Because we presume that Congress and the 

President were aware of our case law interpreting an 

accused’s unsworn statement, we further presume that they 

intended unsworn victim statements to be treated similarly. 

McDonald, 78 M.J. at 380.

Although the military judge erred in his reasoning with 

regard to why trial counsel may comment on the contents of 

the unsworn victim statement admitted under R.C.M. 1001A, 

we agree with the military judge’s ultimate conclusion. In the 

absence of explicit statutory limitation, or other clear 

evidence of Congress’s or the President’s intent to limit 

comment on unsworn victim statements in presentencing 

argument, we hold either party may comment on properly 

admitted unsworn victim statements.4 Because application of 

the correct law reaches the same outcome as that reached by 

the military judge, the military judge’s error was harmless.5

 4 As he did at trial, Appellant maintains that there is a 

distinction between referencing a victim’s unsworn statement and 

arguing a victim’s unsworn statement. We disagree with this 

distinction. Counsel’s comments concerning a victim’s unsworn 

statement may include both references and arguments.

5 Of course, Congress may revise Article 6b, UCMJ, if it 

disagrees with our statutory interpretation. See Kimble v. Marvel 
United States v. Tyler, No. 20-0252/AF

Opinion of the Court

9

Decision

The judgment of the United States Air Force Court of 

Criminal Appeals is affirmed.

 

Ent., LLC, 576 U.S. 446, 456 (2015) (noting that once a court 

engages in statutory interpretation, it is up to Congress “for 

acceptance or not as that branch elects”).