UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Airman First Class ALEX R. GOSS

United States Air Force

ACM 38805

7 September 2016

Sentence adjudged 10 February 2015 by GCM convened at Edwards 

Air Force Base, California. Military Judge: Brendon K. Tukey (sitting 

alone).

Approved sentence: Bad-conduct discharge, confinement for 100 days, 

forfeiture of all pay and allowances, and reduction to E-1.

Appellate Counsel for Appellant: Major Isaac C. Kennen. 

Appellate Counsel for the United States: Lieutenant Colonel Nurit 

Anderson and Gerald R. Bruce, Esquire.

Before

DUBRISKE, SANTORO, and SPERANZA

Appellate Military Judges

OPINION OF THE COURT

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent 

under AFCCA Rule of Practice and Procedure 18.4.

SANTORO, Judge:

A military judge at a general court-martial convicted Appellant, pursuant to his plea, 

of grabbing the buttocks of a person he knew or reasonably should have known was 

unconscious, in violation of Article 120, UCMJ, 10 U.S.C. § 920. The adjudged and 

approved sentence was a bad-conduct discharge, confinement for 100 days, forfeiture of 
2 ACM 38805

all pay and allowances, and reduction to E-1.

1 Appellant asserts that his due process rights 

were violated when the convening authority considered information submitted by the 

victim’s counsel pursuant to Article 60(d), UCMJ, 10 U.S.C. § 860(d), and Rule for CourtsMartial (R.C.M.) 1107(b)(3)(B)(iii). We disagree and affirm. 

Background

On 31 December 2013, Appellant attended a New Year’s party at the off-base 

residence of several Airmen. Approximately 40 people attended, including the victim, who 

was the civilian girlfriend of one of the Airmen living at the house. The New Year’s party 

was the first time Appellant met the victim and they had little to no interaction during the 

party.

The victim consumed a significant quantity of alcohol and eventually went to her 

boyfriend’s bedroom to retire for the night. At some point later, Appellant walked into the 

bedroom by mistake while looking for a restroom. He saw the victim lying unconscious 

on the bed. Appellant sat on the bed, reached his hand under the victim’s dress, grabbed 

her buttocks, and began to masturbate. The victim remained unconscious during the entire 

event. The incident ended when the victim’s boyfriend entered the room, confronted 

Appellant, and forcibly removed him from the bedroom. 

Additional facts necessary to resolve the assignment of error are included below.

Victim Impact Statement

The victim of an offense tried by court-martial that results in a conviction has the 

right to submit matters for the convening authority’s consideration before action is taken 

on the findings and sentence. Article 60(d), UCMJ, 10 U.S.C. § 860(d); see also R.C.M. 

1105A. Before taking action, the convening authority may consider “[s]uch other matters 

as the convening authority deems appropriate. However, if the convening authority 

considers matters adverse to the accused from outside the record, with knowledge of which 

the accused is not chargeable, the accused shall be notified and given an opportunity to 

rebut.” R.C.M. 1107(b)(3)(B)(iii).

During post-trial processing and pursuant to R.C.M. 1106, the staff judge advocate

(SJA) submitted a recommendation (SJAR) to the convening authority that he approve the 

findings and sentence as adjudged.2 Two weeks later, the SJA submitted an addendum to 

 

1 A specification alleging that Appellant penetrated the same victim’s vulva with his penis while she was unconscious 

was withdrawn pursuant to the terms of a pre-trial agreement that limited Appellant’s period of confinement to 24 

months. The military judge dismissed a charge and specification in violation of Article 134, UCMJ, 10 U.S.C. § 934, 

alleging Appellant masturbated above the same victim’s unconscious body.

2

In our review of this case, we note that the staff judge advocate (SJA) erroneously advised the convening authority 

that the maximum period of confinement for the offense of which Appellant was found guilty was 37 years when in 
3 ACM 38805

his initial recommendation. The addendum included three additional matters: one signed 

letter from the victim and two letters from her counsel. The three letters urged the 

convening authority not to mitigate the adjudged sentence. The SJA did not comment on 

the contents of any of the attachments to the addendum and said only that the previous 

recommendation remained unchanged. This addendum was served on Appellant and his 

trial defense counsel.

Trial defense counsel submitted both a clemency request and a response to the 

matters contained in the addendum. Nowhere in the response to the addendum did trial 

defense counsel challenge the propriety of the convening authority’s considering the

matters submitted by the victim or her counsel. Instead, trial defense counsel squarely 

addressed the comments made by both the victim and her counsel and offered Appellant’s 

contrary view of the assertions. Trial defense counsel encouraged the convening authority 

to consider the arguments and “give this submission from [the victim] through her counsel 

the appropriate amount of weight” (emphasis added). The convening authority declined 

to grant the requested clemency and approved the sentence as adjudged.

Appellant now argues that the convening authority violated due process by 

considering the victim’s statement because, when requesting that the sentence be approved 

as adjudged, the victim stated that Appellant had not offered an explanation of how her 

DNA was found on him after the assault.

3 Appellant also asserts that it was error for the 

convening authority to consider the victim’s written statement when the military judge had 

declined to consider it because neither the victim nor her counsel personally appeared at 

the court-martial.

Proper completion of post-trial processing is a question of law which we review de 

novo. United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct. Crim. App. 2004) (citing

United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)). Failure to comment in a timely 

manner on matters in the SJAR, or on matters attached to the SJAR, forfeits any later claim 

of error in the absence of plain error. R.C.M. 1106(f)(6); United States v. Scalo, 60 M.J. 

435, 436 (C.A.A.F. 2005). To prevail under a plain error analysis, Appellant bears the 

burden of showing the following: “(1) there was an error; (2) it was plain or obvious; and 

(3) the error materially prejudiced a substantial right.” Scalo, 60 M.J. at 436 (quoting Kho, 

54 M.J. at 65). Because of the highly discretionary nature of the convening authority’s 

action on the sentence, we will grant relief if an appellant presents ‘some colorable showing 

of possible prejudice.’” Kho, 54 M.J. at 65 (quoting United States v. Wheelus, 49 M.J. 283, 

289 (C.A.A.F. 1998)).

 

fact it was 7 years. Appellant did not raise this issue either before the convening authority or before us, and, after our 

review of the entire record, we are convinced that this error was harmless.

3

In context, this statement appears to express the victim’s concern that Appellant may have engaged in conduct more 

egregious than that reflected by the guilty plea. The victim also stated that she had no recollection of that night. Other 

than a question about the significance of the DNA evidence, the victim had no other apparent basis on which to suspect 

something more had occurred. The DNA evidence was included in the stipulation of fact that accompanied 

Appellant’s guilty plea and, therefore, was already appropriately before the convening authority.
4 ACM 38805

The parties disagree as to whether Appellant has forfeited this alleged error. 

Appellant argues that his efforts to rebut the victim’s statements, while never explicitly 

challenging their authenticity or the propriety of convening authority considering them, 

was sufficient under R.C.M. 1106(f)(6) to preserve the error. The Government argues that 

R.C.M. 1106 requires an actual objection to the matters before the convening authority 

and, that in this case, because Appellant responded directly to the questions and issues 

raised by the victim and her counsel, he cannot now claim error.

We conclude that Appellant’s failure to challenge the victim impact statements’ 

authenticity has forfeited that issue absent plain error. Although we are doubtful that 

Appellant’s specific rebuttal of the substance of the victim impact statements has preserved 

that issue for review, we conclude that there was no error, plain or otherwise.

Shortly before Appellant’s trial, Article 60, UCMJ, was amended to include a new 

subsection “(d)” that authorized the submission of victim impact statements. See National 

Defense Authorization Act (NDAA) for Fiscal Year 2014, Pub. L. No. 113-66, § 1706, 127 

Stat. 672, 960-61 (2013). However, the amended Article 60, UCMJ, does not address what 

may be included in a victim impact statement:

In any case in which findings and sentence have been adjudged 

for an offense that involved a victim, the victim shall be 

provided an opportunity to submit matters for consideration by 

the convening authority or by another person authorized to act 

under this section before the convening authority or such other 

person takes action under this section.

Article 60(d)(1), UCMJ; see also R.C.M. 1105A.

The amendment to Article 60, UCMJ, did not change the standard a convening 

authority uses when reviewing the findings and sentence. The convening authority may 

consider “[s]uch other matters as the convening authority deems appropriate.” R.C.M. 

1107(b)(3)(B)(iii). In addition, the Military Rules of Evidence—including those of 

authenticity and relevance—do not apply to the convening authority when taking action in 

a case. The procedural protection the President established to protect the very due process 

rights Appellant asserts in this case are the requirement for SJA review and 

recommendation (R.C.M. 1106), Appellant’s ability to comment on that review and 

recommendation (R.C.M. 1105), and Appellant’s ability to rebut adverse information from 

outside the record (R.C.M. 1107(b)(3)(B)(iii)).

4

 

4 The federal civilian cases cited by Appellant in support of his due process argument are inapposite to the issue raised 

in this case as there is no equivalent clemency process in United States District Court before a judgment becomes 

final.
5 ACM 38805

“Congress gave the convening authority the important, quasi-judicial power to 

review the judgment and sentence of a court-martial. When the convening authority goes 

outside the record, under the Rules for Courts-Martial, he or she must disclose this to an 

accused and give the accused an opportunity to respond.” United States v. Cornwell, 49 

M.J. 491, 494 (C.A.A.F. 1998) (Sullivan, J., dissenting). An SJA may not provide a 

convening authority with information known to be unreliable or misleading. United States 

v. Mann, 22 M.J. 279, 280 n.2 (C.M.A. 1986). Therefore, SJAs and their staff should 

remain vigilant, particularly when reviewing materials submitted by victims who may still 

be emotional and justifiably biased. Victims and their advocates may not understand the 

issues that can be created when the post-trial process goes awry. Thus, a prudent SJA may 

decide to supplement the advice contained in an SJAR—depending on the content of a 

victim impact statement—or take other action to prevent a recently-convicted Airman 

from being unfairly prejudiced during the clemency phase.5

However, in this case, the SJA did not err in providing matters submitted by the 

victim and her counsel to the convening authority. Although Appellant, in passing, 

questions the statements’ authenticity, this issue was forfeited and we see nothing in the 

record causing us to question them. In accordance with R.C.M. 1107(b)(3)(B)(iii), 

Appellant and his trial defense counsel were served with copies of the statements and 

responded with a full-throated rebuttal. Trial defense counsel did not raise legal error 

within the meaning of R.C.M 1105(b)(2)(A). Instead, trial defense counsel made factbased arguments and never argued that there was a legal error. The SJA was not required 

to respond to legal error where none was asserted. We, therefore, find no error, plain or 

otherwise.

Conclusion

The 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). Accordingly, the findings and sentence are AFFIRMED.

FOR THE COURT

LEAH M. CALAHAN

Clerk of the Court

 

5

In offering this suggestion, we also note that the SJA’s Rule for Courts-Martial (R.C.M.) 1106 obligation to comment 

on allegations of legal error does not extend to submissions by victims. The SJA is obligated to “state whether, in the 

staff judge advocate’s opinion, corrective action on the findings or sentence should be taken when an allegation of 

legal error is raised in matters submitted under R.C.M. 1105 or when otherwise deemed appropriate by the staff judge 

advocate.” R.C.M. 1106(d)(4) (emphasis added). “The response may consist of a statement of agreement or 

disagreement with the matter raised by the accused. An analysis or rationale for the staff judge advocate's statement, 

if any, concerning legal error is not required.” Id.