UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

No. ACM 39019 (reh)

________________________

UNITED STATES

Appellee

v.

Luis F. SANTOS JR.

Airman First Class (E-3), U.S. Air Force, Appellant1

________________________

Appeal from the United States Air Force Trial Judiciary

Decided 26 November 2019

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Military Judge: Mark W. Milam.

Approved sentence: Dishonorable discharge, confinement for 12 months,

forfeiture of $500.00 pay per month for 12 months, and reduction to E1. Sentence adjudged 26 January 2018 by GCM convened at Joint Base 

San Antonio-Lackland, Texas.

For Appellant: Major Mark C. Bruegger, USAF.

For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Captain 

Zachary T. West, USAF; Mary Ellen Payne, Esquire.

Before J. JOHNSON, POSCH, and KEY, Appellate Military Judges.

Judge POSCH delivered the opinion of the court, in which Senior Judge 

J. JOHNSON and Judge KEY joined.

________________________

This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 30.4.

 

1 This court’s 23 August 2017 decision misidentified Appellant as a senior airman and 

omitted the suffix “Jr.”
United States v. Santos, No. ACM 39019 (reh)

2

________________________

POSCH, Judge:

In October 2015, Appellant was convicted at a general court-martial composed of a military judge alone of one specification of sexual assault of Airman 

First Class (A1C) SM2 and one specification of abusive sexual contact of A1C 

EM, both in violation of Article 120, Uniform Code of Military Justice (UCMJ), 

10 U.S.C. § 920.3 The military judge sentenced Appellant to a dishonorable 

discharge, confinement for 18 months, forfeiture of all pay and allowances, and 

reduction to the grade of E-1. The convening authority disapproved the adjudged forfeitures, deferred and waived the automatic forfeitures for the benefit of Appellant’s dependents, but otherwise approved the adjudged sentence.

In his initial appeal, Appellant assigned two errors. First, in light of United 

States v. Hills, 75 M.J. 350 (C.A.A.F. 2016) and United States v. Hukill, 76 M.J. 

219 (C.A.A.F. 2017), Appellant asserted that the military judge erred by admitting evidence of each charged offense to be used as propensity evidence under Military Rule of Evidence (Mil. R. Evid.) 413 to prove the other charged 

offense. Second, Appellant claimed the evidence was factually and legally insufficient to sustain his conviction for abusive sexual contact of A1C EM. Appellant did not then raise on appeal a claim that his conviction for sexual assault of A1C SM was legally and factually insufficient.

A three-judge panel of this court affirmed the findings of sexual assault of 

A1C SM, and pursuant to Hills, 75 M.J. at 350, and Hukill, 76 M.J. at 219, set 

aside the finding of guilt of abusive sexual contact of A1C EM along with the 

sentence. In the exercise of this court’s authority under Article 66(d), UCMJ,

10 U.S.C. § 866(d), the panel authorized a rehearing as to the set-aside finding 

and sentence, and returned the record of trial to The Judge Advocate General 

for remand to the convening authority for further action consistent with our 

opinion. United States v. Santos, No. ACM 39019, 2017 CCA LEXIS 575 (A.F. 

Ct. Crim. App. 23 Aug. 2017) (unpub. op.).

On 16 November 2017, the General Court-Martial Convening Authority ordered a rehearing and subsequently withdrew and dismissed the specification 

 

2 A1C SM separated from active duty before the rehearing and is identified in the opinion by her military status at the time of Appellant’s original trial.

3 The offenses of which Appellant was found guilty are listed in the Manual for CourtsMartial, United States (2012 ed.). All other references in this opinion to the Uniform 

Code of Military Justice (UCMJ) and the Rules for Courts-Martial (R.C.M.) are to the 

Manual for Courts-Martial, United States (2016 ed.), unless otherwise indicated.
United States v. Santos, No. ACM 39019 (reh)

3

alleging abusive sexual contact of A1C EM.4 A rehearing was held on 26 January 2018 at Joint Base San Antonio (JBSA)-Lackland, Texas, to adjudge a 

sentence for the affirmed finding of sexual assault of A1C SM. A general courtmartial composed of a military judge sentenced Appellant to a dishonorable 

discharge, confinement for 12 months, forfeiture of $500.00 pay per month for 

12 months, and reduction to the grade of E-1. The convening authority approved the sentence that was adjudged at the rehearing.

In this appeal, Appellant identifies two assignments of error: (1) whether 

the military judge erred by admitting A1C SM’s testimony in presentencing

from Appellant’s October 2015 court-martial under the residual exception to 

the rule against hearsay, Mil. R. Evid. 807; and (2) whether Appellant’s conviction for sexual assault of A1C SM, which a panel of this court previously 

affirmed, Santos, unpub. op. at *25, is legally and factually sufficient.5 We have 

considered Appellant’s second assignment of error and conclude the issue does 

not require further discussion or warrant relief. See United States v. Matias, 

25 M.J. 356, 361 (C.M.A. 1987). Finding prejudicial error in the military judge’s 

admission of evidence under the residual hearsay exception, we reassess and 

affirm the sentence.

I. BACKGROUND

In October 2015, Appellant was convicted of sexual assault of A1C SM following her testimony at Appellant’s court-martial. The trial counsel recalled 

A1C SM in presentencing to testify further about the effects of Appellant’s 

criminal conduct beyond its immediate impact in the hours after the assault

that she described in findings. Unlike her findings testimony, the matters in 

aggravation presented in presentencing described how Appellant’s criminal 

conduct appreciably affected her during the 11 months between the sexual assault and trial.

A1C SM was not subpoenaed and did not testify at Appellant’s sentencing 

rehearing convened in January 2018. Instead, the trial counsel offered both a

written transcript and an audio recording of her in-court testimony during the 

findings and presentencing phase of Appellant’s original trial held almost two 

years earlier. Without objection, the military judge admitted excerpts from 

A1C SM’s findings testimony, and over defense objection, her presentencing

testimony as well.

 

4 The convening authority withdrew and dismissed Specification 3 of the Charge, which 

action we find was consistent with the remand and R.C.M. 1107(e)(1)(B)(iii).

5 Appellant personally asserts the second issue pursuant to United States v. Grostefon, 

12 M.J. 431 (C.M.A. 1982).
United States v. Santos, No. ACM 39019 (reh)

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1. Prior Findings Testimony

In the replay of her findings testimony that was admitted without objection, A1C SM explained how she and Appellant became friends at training before they arrived at their first duty assignment at JBSA-Lackland. Before long,

Appellant became her best friend among a circle of Airmen who spent most of 

their off-duty time together. One evening after dinner with their friends, she

returned with Appellant to his dormitory room on JBSA-Fort Sam Houston, 

where she borrowed shorts and a t-shirt. After changing clothes she lay on Appellant’s bed and they watched a movie. A1C SM soon fell asleep. She awoke 

to the sensation of Appellant’s fingers inside her vagina and his erect penis 

pressed against her leg. She felt Appellant kissing her neck and breathing 

heavily. A1C SM described feeling numb and scared. She elbowed Appellant, 

ran barefoot to her car, locked the door, and texted another friend, “I just woke 

up to [Appellant] fingering me, and I’m heading back to Lackland.” While driving home, she was “hyperventilating and shaking,” “really scared,” “stressed

out,” and “just felt empty,” all the while pondering why her best friend would

“do that” to her. When she reached her dorm room she took off the clothes Appellant had lent her, threw them in a corner of her room, got in the shower, 

and sat on the floor holding her knees “for a really long time.” She showered 

for over an hour with the curtain open because she was terrified of Appellant 

entering the room.

2. Prior Presentencing Testimony

Over defense objection, the military judge admitted additional evidence in 

aggravation in the form of a written transcript and three audio recordings, altogether 13 minutes in length, from portions of A1C SM’s presentencing testimony given at the original trial. A1C SM’s prior testimony described the psychological effects of Appellant’s misconduct and how it affected her career, view 

of the military, and ability to feel safe in the 11 months after the sexual assault.

None of the evidence in aggravation that A1C SM gave in presentencing was 

admitted during the findings portion of Appellant’s trial.

A1C SM described waking up every hour or half-hour in the months before 

trial as a result of nightmares she experienced from the assault. To cope with 

sleeplessness, she tried consuming alcohol and taking prescribed sedatives but 

would still wake up crying and relive the incident “every night over and over 

again.” After reporting the assault, she was removed from patient care duties

at the hospital where she worked. She testified her superiors “didn’t think [she] 

was emotionally stable and didn’t want [her] to be around patients,” a determination she found hard to accept. Her upgrade training was placed on hold,

and because she was unable to progress in her Career Development Course she 

was ineligible for tuition assistance to pay for college. A1C SM tearfully explained she “used to genuinely believe in the wingman concept,” but she no 
United States v. Santos, No. ACM 39019 (reh)

5

longer trusted anyone including her coworkers and leadership. She no longer 

felt safe in public or on a military installation and limited her activities to work 

and staying at home. She was unable to bring herself to reenter JBSA-Fort 

Sam Houston where the assault occurred. After a change of assignment, A1C 

SM found a house with a security system and a panic alarm in the bedroom, 

but intrusive fears of Appellant and others discovering where she lived persisted.

A1C SM also described the effect of Appellant’s criminal conduct on her

relationships. She felt isolated from anyone who found out what happened. She 

explained how friends became distant because Airmen who supported Appellant took sides. Her father, a prior military service member, had encouraged 

her to enlist in the Air Force as “he knew the Air Force would take care of” her. 

A1C SM told how her father chastised her for reporting the assault, and her 

mother looked upon her as a helpless victim rather than an adult. By far the 

most significant consequence was lost intimacy with her husband whom she 

married two weeks before the assault. She described how his exhibiting affection through physical contact and touch felt like “getting assaulted all over 

again,” and would trigger anxiety attacks.

In the rehearing on sentencing, the trial counsel argued how the “lasting 

effects” A1C SM described “one year on” turned her into a “person that she 

didn’t used to be.”

II. DISCUSSION

On appeal, Appellant maintains the military judge erred in receiving A1C 

SM’s victim-impact testimony given in presentencing at Appellant’s original 

trial. Conceding that Rule for Courts-Martial (R.C.M.) 810(a)(2)(A) allows the 

sentencing authority to receive evidence from the original trial that is admitted 

in findings, Appellant contends that evidence admitted in the trial counsel’s 

presentencing case is inadmissible at a rehearing unless the proponent shows 

compliance with the Military Rules of Evidence. Appellant claims A1C SM’s 

prior testimony in presentencing was inadmissible hearsay and did not qualify 

for admission under any permitted exception. Therefore, it should not have 

been received, much less considered, to adjudge Appellant’s sentence.

The Government maintains A1C SM’s prior testimony was more probative 

aggravation evidence than any sentencing testimony she could offer in the 

2018 sentence rehearing. The trial counsel argued that A1C SM’s presentencing testimony was not hearsay, claiming the rehearing was simply an extension of Appellant’s first trial. Reasoning that hearsay means a statement that 

“the declarant does not make while testifying at the current trial or hearing,” 

Mil. R. Evid. 801(c)(1), the trial counsel asserted that A1C SM’s presentencing 

testimony given at the original trial was non-hearsay and therefore admissible
United States v. Santos, No. ACM 39019 (reh)

6

at the rehearing. In the alternative, the Government contends now as it did at 

trial that her prior testimony qualified for admission under the residual exception to the rule against hearsay, Mil. R. Evid. 807.

A. Matters Received in Evidence at a Sentencing Rehearing

As this court observed in United States v. Sills, 61 M.J. 771, 773 (A.F. Ct. 

Crim. App. 2005), aff’d, 63 M.J. 262 (C.A.A.F. 2006), the starting point for the 

admissibility of sentencing evidence in a rehearing convened to resentence an 

appellant is R.C.M. 810(a)(2):

Rehearings on sentence only. In a rehearing on sentence only, the 

procedure shall be the same as in an original trial, except that 

the portion of the procedure which ordinarily occurs after challenges and through and including the findings is omitted, and 

except as otherwise provided in this rule.

(A) Contents of the record. The contents of the record of the original trial consisting of evidence properly admitted on the merits 

relating to each offense of which the accused stands convicted 

but not sentenced may be established by any party whether or 

not testimony so read is otherwise admissible under Mil. R. 

Evid. 804(b)(1)6 and whether or not it was given through an interpreter.

(Footnote inserted).

Subject to specified conditions, the rule permits the sentencing authority to 

consider prior testimony, i.e. “evidence,” found in “the record of the original 

trial” that “may be established” by its proponent. R.C.M. 810(a)(2)(A). Strictly 

speaking, the plain language of the rule does not evaluate such evidence for its

“admissibility,” “use,” or “consideration” at a rehearing, although these and 

like terms may be used interchangeably. Id.; see also R.C.M. 810(c)(1) (unless 

the military judge permits, no member may examine matters from the record 

of a former proceeding until first “received in evidence”). The salient points are 

that R.C.M. 810(a)(2) articulates the standard for a military judge to use when 

determining what evidence from the original trial may be considered by the 

sentencing authority, and the rule most assuredly levies conditions on what 

may be received in evidence and considered to determine an appropriate sentence as we explain next.

At a rehearing on sentence only, R.C.M. 810(a)(2)(A) allows the sentencing 

authority to receive “evidence properly admitted on the merits relating to each 

 

6 Enumerating an exception to the rule against admitting hearsay when the declarant 

is unavailable as a witness. Mil. R. Evid. 804(b)(1) (Former Testimony).
United States v. Santos, No. ACM 39019 (reh)

7

offense of which the accused stands convicted but not sentenced” at the original 

trial. (Emphasis added). In the case at bar, the military judge agreed with Appellant’s understanding of “on the merits,” concluding that portions of A1C 

SM’s findings testimony from Appellant’s original trial could be considered by 

the sentencing authority at the rehearing; however, because her presentencing

testimony was not on the merits, it could not be received unless it first qualified

for admission under the Military Rules of Evidence. This included satisfying 

the rule against hearsay and its exceptions, Mil. R. Evid. 801–807, as a predicate to admissibility.

For evidence that is properly admitted in the original trial and of consequence in a rehearing, R.C.M. 810(a)(2)(A) imposes no other procedural or evidentiary prerequisite aside from the limitation that such evidence was “on the 

merits.” This condition is open to two possible interpretations. Under the first 

and more likely reading, and the one adopted by the military judge, “on the 

merits” means findings only. Under an alternative reading, “on the merits” 

would include evidence presented both in findings and presentencing at the 

original trial, but not evidence received before arraignment such as to decide 

an interlocutory question or rule on a pretrial motion.

The text of R.C.M. 810 as a whole lends support to the first interpretation. 

When a rehearing is ordered to adjudge a sentence only, “the procedures shall 

be the same as in an original trial.” R.C.M. 810(a)(2). It follows that the full 

requirements of the Military Rules of Evidence, including the general prohibition against hearsay, would apply until the rules may be relaxed by an accused

with respect to matters in extenuation or mitigation presented by the defense, 

R.C.M. 1001(c)(3), and thereafter by the trial counsel in rebuttal and surrebuttal. R.C.M. 1001(d).

Also instructive is use of “on the merits,” as it appears elsewhere in R.C.M. 

810. We consider its meaning in the context of the rule’s direction for conducting a rehearing on sentence together with either retrial of an offense from the 

original court-martial, or trial on a new charge and specification:

Combined rehearings. When a rehearing on sentence is combined with a trial on the merits of one or more specifications referred to the court-martial, whether or not such specifications 

are being tried for the first time or reheard, the trial will proceed 

first on the merits, without reference to the offenses being reheard on sentence only. After findings on the merits are announced, the members, if any, shall be advised of the offenses on 

which the rehearing on sentence has been directed.
United States v. Santos, No. ACM 39019 (reh)

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R.C.M. 810(a)(3) (second and third emphasis added). Here, the language “first 

on the merits” and “findings on the merits,” resolutely establishes “on the merits” is one and the same with “findings” where it appears in the rule, notably

R.C.M. 810(a)(2)(A), and is distinct from sentencing. See also R.C.M. 1001(e)(1) 

(“During the presentence proceedings, there shall be much greater latitude 

than on the merits to receive information by means other than testimony presented through the personal appearance of witnesses.”). It follows that R.C.M. 

810(a)(2)(A) treats evidence admitted in findings and evidence admitted in 

presentencing from an original trial differently when the same evidence is offered again at a sentencing rehearing. In the case of the former, evidence that 

had been properly admitted and is germane to the rehearing may be considered. In the case of the latter, the evidence must be shown to be otherwise 

admissible anew even though it had been properly admitted at the original 

trial. In neither case is the rehearing simply an extension of the original trial. 

To find otherwise would render the rule ineffectual.

We conclude R.C.M. 810(a)(2)(A) allows that evidence admitted in the findings portion of an appellant’s original trial may be received by the sentencing 

authority at a rehearing on sentence. Conversely, matters other than findings 

evidence have no special treatment under the rule. As a result, we hold that 

other than evidence admitted in the findings portion of an appellant’s original 

trial relating to an offense of which the accused stands convicted, a proponent 

of evidence offered at a rehearing on sentence must establish a basis for admissibility under applicable rules of evidence and procedure, regardless 

whether the evidence was admitted in presentencing in the original trial. See

generally, R.C.M. 1001–1010. As a consequence of our holding, we agree with 

the military judge that admissibility of A1C SM’s presentencing testimony at 

the rehearing turned on whether the trial counsel demonstrated proper 

grounds for admission under the Military Rules of Evidence.

B. Erroneous Admission of A1C SM’s Prior Presentencing Testimony

as Residual Hearsay

At the outset, we note that the evidence in question relates to victim impact

and was proper aggravation evidence.7 See generally R.C.M. 1001(b)(4). As 

both parties acknowledge, the central issue in the case is whether A1C SM’s 

prior testimony in presentencing was admissible under the residual hearsay 

exception, Mil. R. Evid. 807. The military judge recognized this as well and 

admitted her testimony under the exception after conducting a Mil. R. Evid. 

403 balancing test.

 

7 Her testimony also demonstrated adverse impact on the mission and good order and 

discipline, which were relevant considerations under R.C.M. 1001(b)(4).
United States v. Santos, No. ACM 39019 (reh)

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Appellant argues it was an abuse of discretion for the military judge to admit A1C SM’s testimony at the rehearing held more than two years later. Appellant bases his argument primarily on United States v. Czachorowski, 66 

M.J. 432 (C.A.A.F. 2008). In that case the United States Court of Appeals for 

the Armed Forces (CAAF) held that a trial counsel’s bare assertion of a declarant’s unavailability, without more, failed to satisfy the Government’s burden 

to prove the requirements of the residual hearsay exception. Appellant argues 

trial counsel presented no evidence of reasonable efforts to produce A1C SM as 

a witness at the rehearing. As a result, the military judge erred in admitting 

the evidence because the trial counsel failed to prove that admission of her 

prior testimony was necessary as required by Mil. R. Evid. 807. We agree.

1. Law

A military judge’s ruling admitting evidence under Mil. R. Evid. 807 is reviewed for an abuse of discretion. Czachorowski, 66 M.J. at 434 (citation omitted). “Findings of fact are affirmed unless they are clearly erroneous; conclusions of law are reviewed de novo.” Id. (citing United States v. Rader, 65 M.J. 

30, 32 (C.A.A.F. 2007)). A military judge has “considerable discretion” in admitting residual hearsay. United States v. Kelley, 45 M.J. 275, 280–81 

(C.A.A.F. 1996) (citing United States v. Pollard, 38 M.J. 41, 49 (C.M.A. 1993)).

As a prerequisite to admission of a prior statement as residual hearsay, the 

proponent is required to prove, and the military judge must determine, that:

(1) the statement has equivalent circumstantial guarantees of 

trustworthiness;

(2) the statement is offered as evidence of a material fact;

(3) the statement is more probative on the point for which it is 

offered than other evidence that the proponent can obtain 

through reasonable efforts; and

(4) the general purposes of the Military Rules of Evidence and 

the interests of justice will best be served by admission of the 

statement into evidence.

Mil. R. Evid. 807(a).8 “The residual hearsay rule sets out three requirements 

for admissibility: (1) materiality, (2) necessity, and (3) reliability.” Kelley, 45 

M.J. at 280 (citations omitted) (discussing a prior version of the rule). The necessity prong, i.e. third prong of Mil. R. Evid. 807(a), “requires the proponent 

of the evidence to show he could not obtain more probative evidence despite 

 

8 Additionally, Mil. R. Evid. 807(b) requires proper notice to be given. Appellant did 

not challenge the trial counsel’s compliance with this requirement at trial or on appeal.
United States v. Santos, No. ACM 39019 (reh)

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reasonable efforts.” Czachorowski, 66 M.J. at 435. The necessity prong “essentially creates a ‘best evidence’ requirement.” Kelley, 45 M.J. at 281 (quoting 

Larez v. City of Los Angeles, 946 F.2d 630, 644 (9th Cir. 1991)).

2. Analysis

The Defense objected to admission of A1C SM’s prior testimony at the rehearing on the basis of hearsay, and argued there was no evidence she had 

been served a subpoena to appear. The military judge addressed each of the

Mil. R. Evid. 807(a) prongs. He found A1C SM’s prior testimony given in 

presentencing had equivalent circumstantial guarantees of trustworthiness 

under the first prong because A1C SM gave her 2015 presentencing testimony 

under oath and subject to cross-examination. Her prior testimony was evidence 

of a material fact under the second prong because it was proper aggravation 

evidence under R.C.M. 1001(b)(4), specifically evidence of victim impact in the 

11 months after Appellant’s sexual assault. Under the fourth prong, the military judge found that admission best served the purposes of the evidentiary 

rules and the interests of justice.

The focus of the litigation at trial and this appeal is the third prong, that 

is, the “necessity” requirement of the rule. To demonstrate necessity the trial 

counsel must show it could not obtain more probative evidence despite “reasonable efforts.” Czachorowski, 66 M.J. at 435–36. Our superior court has observed that “courts have found the residual hearsay exception inapplicable 

when the evidence is not unreasonably difficult to obtain directly from an available declarant.” Id. at 436. (citations omitted).

We find the military judge did not adequately determine the evidence was 

more probative on the point for which it was offered than other evidence which 

the Government could procure through reasonable efforts. In response to questioning by the military judge, the trial counsel stated, without evidence of record, that A1C SM had been made aware of the date, time, and location of the 

rehearing, that she had been invited to attend, and that she had decided not 

to appear or provide an unsworn statement. The trial counsel also explained

A1C SM was enrolled in school, no longer on active duty, and not represented 

by counsel. The trial counsel presented no evidence that it subpoenaed A1C 

SM or other evidence to support its assertions regarding A1C SM’s unavailability or status.9 The military judge was presented no evidence to assess for 

 

9 Referring to the Prosecution’s proffer, the trial defense counsel explained he believed, 

“[t]hey simply called her, and she decided that she didn’t want to come.” Although the 

Defense did not “object” to the proffer, they did not explicitly agree with it either, and 

maintained there was no evidence A1C SM was served a subpoena to appear.
United States v. Santos, No. ACM 39019 (reh)

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himself whether A1C SM was unavailable or otherwise beyond the Government’s ability to procure through reasonable efforts. And, consistent with the 

lack of evidence on this point, the military judge did not find that the Government made reasonable efforts to produce A1C SM. To that end, he concluded 

the trial counsel “could have subpoenaed her and required her to attend.”10

Because “[i]t does not appear that that was done,” the military judge concluded 

that none of the exceptions that might allow admission of hearsay when a declarant is unavailable as a witness—including the former testimony exception—would apply.11 See Mil. R. Evid. 804.

Nevertheless, the military judge concluded that the trial counsel satisfied 

the necessity prong—which he allowed “might be the most difficult prong for 

the court”—by relying on the trial counsel’s assertion that A1C SM’s prior testimony given much closer in time to the charged offense was more probative 

than her in-person testimony would be at the rehearing: 

[R]ecognizing that this was how she felt 2 years ago, a time much 

more close in time to that of today, the court finds her aggravation evidence at the time of the original trial to be more probative 

on the point of her aggravation—of her effects of the incident—

than anything she could testify to today and 2 years later—over 

2 years later.

However, there was no evidence in the record to support this conclusion, 

based as it was on the assumption that mere passage of time would cause A1C 

SM’s prior testimony to be more probative than any testimony she could give 

during the rehearing. Much like the trial counsel’s mere assertion of unavailability, there was no evidentiary basis for finding A1C SM’s recollection had 

been diminished by the passage of time, and the determination was again 

made on the basis of the trial counsel’s assertion that it was so. However, the 

CAAF has clearly stated that under the Mil. R. Evid. 807 necessity prong, a 

“trial counsel’s bare assertion” of a witness’ unavailability “without any explanation” is insufficient to admit residual hearsay. Czachorowski, 66 M.J. at 437. 

The CAAF has similarly explained that a military judge “cannot take it for 

granted that a declarant of any age is unavailable or forgetful, and then admit 

hearsay testimony under the residual exception instead.” Id. at 436. Here, 

 

10 The process to compel a witness to appear and testify “shall be similar to that which 

courts of the United States having criminal jurisdiction may lawfully issue,” Article 

46, UCMJ, 10 U.S.C. § 846, and in the case of a witness not on active duty, a subpoena 

may be issued by detailed trial counsel after referral. R.C.M. 703(e)(2)(A) and 

703(e)(2)(C)(2)(b).

11 The trial counsel did not offer the prior testimony under an exception to hearsay 

other than the residual exception, Mil. R. Evid. 807.
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there was no evidence in the record that A1C SM was either unavailable or 

forgetful. Although it is possible A1C SM’s memory faded over time, it is also 

possible she could have vividly recounted all that she experienced in the aftermath of Appellant’s offense.

Citing United States v. Bess, the Government prevails upon this court to be 

mindful that an abuse of discretion “requires more than just [a court’s] disagreement with the military judge’s decision.” 75 M.J. 70, 73 (C.A.A.F. 2016)

(citing United States v. Stellato, 74 M.J. 473, 480 (C.A.A.F. 2015)). Relying on 

Bess, the Government contends that the military judge’s “finding was not ‘outside the range of choices reasonably arising from the applicable facts and the 

law,’” id., and therefore did not constitute an abuse of discretion. Because the 

Government failed to offer evidence of reasonable efforts to obtain A1C SM’s 

presence at trial, or to demonstrate that A1C SM’s prior testimony was more 

probative on the point for which it was offered than her in-person testimony

would have been, we disagree. The military judge’s findings on the necessity 

prong were based on assertions of counsel and not evidence. It follows then 

that the findings on which he based his ruling were clearly erroneous. We find 

the military judge erred in his application of the third prong of Mil. R. Evid. 

807, and his ruling to admit residual hearsay was an abuse of discretion.

C. Prejudice and Sentence Reassessment

Having determined there was error in admission of evidence in aggravation, we must next determine whether the error had a “substantial influence

on the sentence” that was adjudged. See United States v. Boyd, 55 M.J. 217, 

221 (C.A.A.F. 2001) (citation omitted). “If so, then the result is material prejudice to Appellant’s substantial rights.” United States v. Griggs, 61 M.J. 402, 

410 (C.A.A.F. 2005) (citation omitted) (setting out the test for the erroneous 

admission or exclusion of evidence); see also United States v. Sanders, 67 M.J. 

344, 346 (C.A.A.F. 2009); United States v. Bridges, 66 M.J. 246, 249 (C.A.A.F. 

2008). We test for prejudice by assessing “whether the error substantially influenced the adjudged sentence” and consider four factors: “(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.” 

United States v. Barker, 77 M.J. 377, 384 (C.A.A.F. 2018) (citations omitted).

“An error is more likely to be prejudicial if the fact was not already obvious 

from the other evidence presented at trial and would have provided new ammunition against an appellant.” Id. (citing United States v. Harrow, 65 M.J. 

190, 200 (C.A.A.F. 2007)).

On appeal, the Government argues Appellant was not prejudiced because 

admission of A1C SM’s prior sentencing testimony at the rehearing did not 

substantially influence the adjudged sentence. Through the proper admission 

of A1C SM’s findings testimony, the Government claims, the military judge 
United States v. Santos, No. ACM 39019 (reh)

13

already had “powerful findings testimony that provided significant aggravation and victim impact evidence.”

However, we decline to infer that the military judge admitted other material victim impact evidence and then proceeded to disregard it on grounds that 

there was already evidence in aggravation of record. This is especially so because unlike evidence that was already before the court, the improperly admitted presentencing evidence went far beyond the immediate aftermath of the 

sexual assault in the first hours after it happened. The focus of the inadmissible evidence was the long-term consequences of Appellant’s conduct measured 

in months, not hours. It related to just about every facet of A1C SM’s life from 

her military career to her family and friends, including her relationship with 

her husband. Considering the four Barker factors together, we conclude the

improperly admitted evidence substantially influenced the sentence.

The result we reach is warranted by how the disputed evidence was used

after it was erroneously admitted. The trial counsel argued at the rehearing 

how such “lasting effects” “one year on” turned A1C SM into a “person that she 

didn’t used to be.” The least dated evidence of “lasting effects” would have been 

offered through A1C SM’s live testimony: neither R.C.M. 810 nor R.C.M. 

1001(b)(4) establish a temporal limit on evidence that may be admitted at a 

rehearing on sentence. See also United States v. Rivers, 27 C.M.R. 949, 951 

(A.F.B.R. 1958) (matters in aggravation up to the time of sentence may be considered at a sentence rehearing); United States v. Davis, 65 M.J. 749, 751–53 

(N.M. Ct. Crim. App. 2007) (excluding facts from consideration by the sentencing authority at a rehearing because they arose after the date of the original 

sentence would be “difficult, and ultimately capricious, to implement”). The

sustained impact argument trial counsel advanced at the rehearing undercuts 

the Government’s contention that A1C SM’s prior testimony given 11 months 

after the charged offense was more probative than her in-person testimony 

would have been at the rehearing. The Government cannot have it both ways, 

arguing the diminished value of victim impact evidence in the 39 months after 

a sexual assault, and at the same time use victim-impact testimony to argue 

matters in aggravation because a victim endured “lasting effects.”

We next consider whether this court should again order a rehearing or reassess the sentence. We have “broad discretion” when reassessing sentences. 

United States v. Winckelmann, 73 M.J. 11, 13 (C.A.A.F. 2013) (citation omitted). The CAAF has repeatedly held that if we “can determine to [our] satisfaction that, absent any error, the sentence adjudged would have been of at least 

a certain severity, then a sentence of that severity or less will be free of the 

prejudicial effects of error . . . .” United States v. Sales, 22 M.J. 305, 308 (C.M.A. 

1986). Thus, our analysis is based on a totality of the circumstances to include 

whether the offense is of the type that we as appellate judges should have the 
United States v. Santos, No. ACM 39019 (reh)

14

experience and familiarity with to reliably determine what sentence would 

have been imposed at trial. Winckelmann, 73 M.J. at 15–16. We find the factors 

weigh in favor of reassessment rather than rehearing.

We are also aware that, in reassessing a sentence, we must ensure that 

“the reassessed sentence ‘is no greater than that which would have been imposed if the prejudicial error had not been committed.’” United States v. Moffeit, 63 M.J. 40, 42 (C.A.A.F. 2006) (quoting Sales, 22 M.J. at 308). Appellant 

chose sentencing by a military judge alone, and this court has the experience 

and familiarity with Appellant’s offense to determine reliably what sentence 

would have been imposed by the judge absent the error. We can reliably determine Appellant would have received a sentence of at least a dishonorable discharge, confinement for ten months, forfeiture of $500.00 pay per month for 

ten months, and reduction to the grade of E-1.

We also conclude that this reassessed sentence is appropriate. We assess 

sentence appropriateness by considering Appellant, the nature and seriousness of the offense, Appellant’s record of service, and all matters contained in 

the record of trial. United States v. Bare, 63 M.J. 707, 714 (A.F. Ct. Crim. App. 

2006) (citing United States v. Healy, 26 M.J. 394, 395–96 (C.M.A 1988); United 

States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982)), aff’d, 65 M.J. 35 (C.A.A.F. 

2007). We are convinced that the reassessed sentence is not inappropriately 

severe.

III. CONCLUSION

This court previously affirmed the findings of guilty. We reassess the sentence to a dishonorable discharge, confinement for ten months, forfeiture of 

$500.00 pay per month for ten months, and reduction to the grade of E-1. The 

sentence as reassessed is correct in law and fact, and no other 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). Accordingly, the sentence as reassessed is AFFIRMED.

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court