UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Staff Sergeant DAVID W. TURNER II

United States Air Force

ACM S32317

___ M.J. ___

2 November 2016

Sentence adjudged 17 December 2014 by SPCM convened at McConnell Air 

Force Base, Kansas. Military Judges: Todd E. McDowell (trial) and 

Matthew S. Ward (post-trial hearing).

Approved sentence: Bad-conduct discharge, confinement for 45 days, and 

reduction to E-3.

Appellate Counsel for Appellant: Major Isaac C. Kennen (argued) and

Lieutenant Colonel Nicholas W. McCue.

Appellate Counsel for the United States: Major J. Ronald Steelman III 

(argued); Major Lance R. Smith; Major Mary Ellen Payne; and Gerald R. 

Bruce, Esquire.

Before

MAYBERRY, SPERANZA, and JOHNSON

Appellate Military Judges

PUBLISHED OPINION OF THE COURT

SPERANZA, Judge:

A military judge sitting alone as a special court-martial convicted Appellant, 

contrary to his pleas, of two specifications of abusive sexual contact in violation of Article 

120, UCMJ, 10 U.S.C. § 920. The military judge acquitted Appellant of one specification 

of assault consummated by a battery under Article 128, UCMJ, 10 U.S.C. § 928. At the 

request of the Defense, the military judge issued special findings under Rule for Courts-
2 ACM S32317

Martial (R.C.M.) 918(b). The adjudged and approved sentence consisted of a bad-conduct 

discharge, confinement for 45 days, and reduction to E-3. 

On appeal, Appellant raises three assignments of error: (1) the military judge 

abused his discretion by not sua sponte recusing himself; (2) the circumstances of this case 

create the appearance that the Special Victim’s Counsel (SVC) attempted to influence the 

action of the military judge in reaching the findings or sentence; and (3) the evidence is not 

factually sufficient to sustain the convictions. Although we conclude the military judge 

and SVC engaged in proscribed communications outside the presence of the parties, we 

find no error materially prejudicial to Appellant and affirm. 1

Background

During a going-away party at Cavalier Air Force Station, North Dakota, Appellant 

touched First Lieutenant (1st Lt) ES’s breast with his hand and pressed the front of his body 

against the back of hers. Appellant was convicted of two specifications of abusive sexual 

contact for this conduct.

On the morning of trial, the military judge met with trial counsel and trial defense 

counsel in accordance with R.C.M. 802. The SVC representing 1st Lt ES did not attend 

this conference. That same morning, the military judge met with the SVC in chambers. 

The parties did not attend the military judge’s meeting with the SVC. During this meeting, 

the military judge provided his expectations regarding the SVC’s participation in the 

 1 We also note there was presumptively unreasonable post-trial delay in this case. Appellant’s court-martial concluded 

on 17 December 2014. That same day, Appellant was notified of his right to submit clemency matters. The military 

judge authenticated the record of trial on 20 January 2015. On 22 January 2015, trial defense counsel submitted a 

motion to the military judge requesting the judge set aside the findings and sentence and conduct a post-trial Article 

39(a), UCMJ, 10 U.S.C. § 839(a), motions hearing. On 24 January 2015, the military judge declined to act on the 

Defense motion, citing R.C.M. 1102 and his lack of authority to grant the relief sought by the Defense. In addition, 

the military judge “disqualified” himself from further action in the case and advised the Defense to submit its request

to the convening authority for action. On 27 January 2015, the convening authority directed that a post-trial Article 

39(a) session be held “[p]ursuant to [his] authority under [R.C.M.] 1102.” A new military judge conducted the posttrial session on 9 April 2015. A verbatim record of the post-trial hearing was authenticated by the new military judge 

on 29 April 2015. On 30 April 2015, the staff judge advocate’s recommendation (SJAR) was served on the Defense. 

On 6 May 2015, trial defense counsel requested a delay in submitting Appellant’s clemency matters. This request 

was approved on the same day, and Appellant submitted his clemency matters to the convening authority on 14 May 

2015. On 18 May 2015, the staff judge advocate provided the convening authority an addendum to his 

recommendation that included Appellant’s clemency matters. The convening authority considered Appellant’s 

submissions and took action on 19 May 2015. Although the time from the conclusion of Appellant’s trial to action in 

this case exceeded 120 days, Appellant has not sought relief pursuant to United State v. Moreno, 63 M.J. 129 (C.A.A.F. 

2006). However, Moreno established a presumption of unreasonable post-trial delay when the convening authority 

does not take action on the findings and sentence within 120 days of trial. Id. at 142. Accordingly, we apply the 

familiar four-factor balancing test set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972), and find the post-trial delay 

in this case warrants no relief. We also decline to exercise our power under Article 66(c), UCMJ, 10 U.S.C. § 866(c), 

to grant Appellant relief for a reasonable post-trial delay. See United States v. Tardif, 57 M.J. 219, 224-25 (C.A.A.F. 

2002). 
3 ACM S32317

courtroom and confirmed the status of any motions raised pursuant to Military Rules of 

Evidence (Mil. R. Evid.) 412, 513, 514, and 615. The SVC also asked the military judge 

if the Defense raised issues related to the termination of trial defense counsel’s pretrial 

interview of 1st Lt ES. The meeting between the SVC and the military judge lasted fewer

than five minutes. The military judge placed a summary of this meeting on the record, but 

did not disclose that the SVC inquired about the termination of the pretrial interview. After 

trial, the military judge provided feedback to counsel. During his feedback session with 

trial defense counsel, the military judge addressed the pretrial interview of 1st Lt ES. 

Based on the information communicated during the post-trial feedback session, trial 

defense counsel filed a motion claiming the military judge engaged in unlawful ex parte 

communications with the SVC and requesting the findings and sentence be set aside. Trial 

defense counsel did not allege unlawful influence. In accordance with R.C.M. 1102, the 

convening authority ordered a post-trial Article 39(a), UCMJ, 10 U.S.C § 839(a) session.

The military judge recused himself and a new military judge was detailed to the case. The 

original military judge, the SVC, and Appellant testified at the post-trial Article 39(a), 

UCMJ, hearing.

2

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

Disqualification of the Military Judge

We review a military judge’s decision on disqualification for an abuse of discretion. 

United States v. Quintanilla, 56 M.J. 37, 77 (C.A.A.F. 2001) (citing United States v. 

Norfleet, 53 M.J. 262, 270 (C.A.A.F. 2000)). “On appeal, ‘the test is objective, judged 

from the standpoint of a reasonable person observing the proceedings.’” Quintanilla, 56 

M.J. at 78 (quoting United States v. Burton, 52 M.J. 223, 226 (C.A.A.F. 2000)). When a 

military judge’s impartiality is challenged on appeal, the test is “whether, ‘taken as a whole 

in the context of this trial,’ a court-martial’s ‘legality, fairness, and impartiality’ were put 

into doubt by the military judge’s actions.” Id. (quoting Burton, 52 M.J. at 226). 

R.C.M. 902 provides the basis for when a military judge should be disqualified. It 

states that “a military judge shall disqualify himself or herself in any proceeding in which 

that military judge’s impartiality might reasonably be questioned.” R.C.M. 902(a). As our 

superior court has held, “An accused has a constitutional right to an impartial judge.” 

United States v. Wright, 52 M.J. 136, 140 (C.A.A.F. 1999). There is a strong presumption 

that a judge is impartial, and a party seeking to demonstrate bias must overcome a high 

hurdle, particularly when the alleged bias involves actions taken in conjunction with 

judicial proceedings. Quintanilla, 56 M.J. at 44. Although a judge has a duty not to sit 

when disqualified, the judge has an equal duty to sit on a case when not disqualified. 

 2 Ordinarily, we would review the military judge’s resolution of the Defense’s post-trial motion. However, the military 

judge presiding over the post-trial Article 39(a), UCMJ, session declined to find facts, reach conclusions of law, and 

rule on the Defense’s motion, despite his authority to do so. See R.C.M. 1102(b)(2). 
4 ACM S32317

United States v. Witt, 75 M.J. 380, 383 (C.A.A.F. 2016) (citing Laird v. Tatum, 409 U.S. 

824, 837 (1972)).

A military judge’s ex parte interactions with counsel and witnesses may form the 

basis for disqualification; however, “certain ex parte communications are permissible.” 

Quintanilla, 56 M.J. at 44. Disqualification is not required “if the record shows that the 

communication did not involve substantive issues or evidence favoritism for one side.” Id. 

at 79. We consider the following factors to determine whether an ex parte communication 

necessitates disqualification:

A decision on disqualification will “depend on the nature of the 

communication; the circumstances under which it was made; 

what the judge did as a result of the ex parte communication; 

whether it adversely affected a party who has standing to 

complain; whether the complaining party may have consented 

to the communication being made ex parte, and, if so, whether 

the judge solicited such consent; whether the party who claims 

to have been adversely affected by the ex parte communication 

objected in a timely manner; and whether the party seeking 

disqualification properly preserved its objection.”

Id. at 44 (quoting RICHARD E. FLAMM, JUDICIAL DISQUALIFICATION, § 2.6.3 at 45 (1996)).

At the post-trial Article 39(a), UCMJ, session, the military judge testified that he 

had “no recollection” of 1st Lt ES’s termination of the pretrial interview being addressed 

during his pretrial meeting with the SVC, but acknowledged it was “quite possible that, in 

passing, there was a reference made by [him] or by [the SVC], as it relate[d] to access to 

witnesses and making sure that that was taken care of.” The military judge recalled a more 

extensive conversation with the SVC after trial in which he reminded the SVC of the need 

to ensure the Defense had a full opportunity to interview his client. The military judge 

further testified that the conversation with the SVC “was not something that was of a 

significant detail [sic] and related to the case that I have any recollection of . . . and was 

not something that I addressed on the record.” Regarding the conversation’s impact on the 

case, the military judge testified that the pretrial conversation had “[n]o impact 

whatsoever” on his deliberations in either the findings or sentencing phases of trial. 

The SVC also testified at the post-trial Article 39(a), UCMJ, session. When asked 

by the trial defense counsel if it was the “standard in practice as an SVC to meet with the 

military judge ex parte,” the SVC stated, “Generally, yes. We’re usually not included in 

[R.C.M.] 802 conferences, so generally the judge will speak with us, kind of one-on-one, 

sometimes before the trial begins and discuss just kind of administrative matters.” The 

SVC did not recall having a post-trial feedback session with the military judge. The SVC 

testified that he did not “go into specifics of the disagreement” about the termination of the 
5 ACM S32317

pretrial interview with the military judge. He did recall telling the military judge that the 

Defense had terminated the interview because his client “did not want to answer questions 

that she had answered previously” and the Defense had indicated that they may bring the 

issue to the military judge. He further testified that his intent in asking the military judge 

about the status of this issue was to find out whether the Defense had in fact filed a motion 

so that he “could prepare any motions or argument . . . to assert [his] client’s rights.”

Based on the testimony, it is clear the SVC and the military judge met in the military 

judge’s chambers before trial without the parties. The Government argues that because the 

SVC was not a party to the court-martial, this could not have been an ex parte

communication. We disagree. 

A judge shall accord to every person who has a legal interest 

in a proceeding, or that person’s lawyer, the right to be heard 

according to law. A judge shall not initiate, permit, or consider 

ex parte communications, or consider other communications 

made to the judge outside the presence of the parties

concerning a pending or impending proceeding . . . .

Air Force Instruction (AFI) 51-110, Professional Responsibility Program, Attachment 9

(Air Force Uniform Code of Judicial Conduct or “the Judicial Code”), Canon 3B(7) (7 July 

2016); see also AFI 51-110 at Attachment 8, Standard 6-2.1 (“The military judge should 

insist that neither the trial counsel nor the defense counsel, nor any other person, discuss a 

pending case with the judge ex parte, except after adequate notice to all other parties and 

when authorized by law or in accordance with approved practice. The military judge 

should ensure that all such ex parte communications are subsequently noted on the 

record.”) (emphasis added). The problems inherent to such communications are not 

created because they are with a particular party or participant, but because they exclude the 

others. A military judge meeting with an SVC—a trial participant with limited standing,

see LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013)—to the exclusion of both parties is 

envisioned by and implicates the same concerns as Canon 3B(7). We thus readily conclude 

that ex parte communications between a military judge and an SVC are generally 

proscribed.

We recognize that not all communications by a military judge that exclude a party, 

or in this case both parties, are per se prohibited. Indeed, the Judicial Code carves out five 

exceptions to the general prohibition, including, when necessary, ex parte communications 

“for scheduling, administrative purposes, or emergencies that do not deal with substantive 

matters or issues on the merits.” Canon 3B(7)(a). But there must be timely disclosure of 

the nature of the communication to the absent party. Canon 3B(7)(a)(1); see also

Quintanilla, 56 M.J. at 44. 
6 ACM S32317

Here, although the SVC did not represent a party to the litigation, he was not a 

stranger to the court-martial. The SVC’s client was a participant with limited standing at 

the court-martial, and the military judge had a reasonable interest in managing his

courtroom and maintaining the dignity of the proceedings. Appropriately, the military 

judge sought to provide the SVC direction on how to address the court-martial and to 

discuss other administrative matters. However, the line between administrative and

substantive matters blurs quickly. What may start as a simple discussion of administrative 

matters can easily become a discussion of substantive issues. Therefore, the military 

judge’s in-chambers meeting with the SVC, without the parties, was fraught with risk. This

risk was quickly realized once the SVC revealed the facts and circumstances surrounding 

the trial defense counsel’s pretrial interview with the SVC’s client, a Government witness 

who also maintained recognized legal interests in the proceedings. Whether foreseeable or 

not, we find that this constituted a proscribed substantive communication between the 

military judge and the SVC outside the presence of the parties.3

 

We thus turn to whether the proscribed communication necessitated 

disqualification. Applying the factors established in Quintanilla, 56 M.J. at 44, we find 

that it did not and that a reasonable person fully informed of all the facts would not question 

the legality, fairness, and impartiality of Appellant’s court-martial. 

Preserved, Timely Objection and Consent to the Communication. Appellant 

properly preserved this issue with a timely objection. Additionally, Appellant would not 

have consented to the communication between the military judge and SVC occurring

outside of his, or his counsel’s, presence. Although Appellant did not object when the 

military judge summarized the meeting with the SVC on the record, that summary was 

inadequate. When Appellant was made aware of the full content of the communication, he 

promptly objected. Thus, these factors weigh in favor of disqualification.

Nature and Circumstances of the Proscribed Communication. The nature of the 

communication and the circumstances under which it was made related to the SVC’s 

representation of a participant with limited standing. The military judge maintained a 

legitimate interest in clarifying that participant’s role and coordinating any administrative 

matters related to such participation. Although the military judge’s comments focused on 

administrative matters regarding the SVC’s in-court representation, the meeting briefly

delved into substantive matters when the SVC addressed limited details regarding his 

client’s pretrial interview. Despite the prohibition against these types of communications, 

we find the SVC’s questions and disclosure were not some nefarious attempt to provide 

the military judge with information prejudicial to Appellant. Therefore, these factors

weigh against disqualification.

 3 Even if the military judge’s communications with the SVC about the pretrial interview had been purely 

administrative, we find that the military judge failed to adequately disclose the nature of the administrative 

communications to the parties.
7 ACM S32317

Actions Taken and Impact on Appellant. The military judge did not exploit the 

communication to take any action in this case; thus, Appellant was not adversely affected. 

The Defense did not file a motion regarding the pretrial interview, so the military judge did 

not act directly on this matter. Although the military judge permitted trial defense counsel

to meaningfully cross-examine 1st Lt ES, Appellant nevertheless contends that the military 

judge might have been more sympathetic to the victim because she endured aggressive and 

repetitive pretrial questioning. However, there is nothing in the record to support this 

assertion. It is equally possible that the military judge may have been sympathetic to the 

Defense due the Defense’s inability to conduct a pretrial interview. Thus, the argument of 

sympathy, one way or the other, is purely speculative. The record of this case supports the 

strong presumption that the military judge was impartial. 

Appellant further argues that the military judge’s special finding that the victim was 

credible is evidence of the impact of the prohibited communication. We are not persuaded. 

The military judge listed four witnesses he found credible. Included in that list were the 

victim and a witness called by the Defense. There is no indication that the special finding 

on the credibility of any witness was related to the proscribed communication. 

Appellant also argues that the military judge’s duty history as an agent with the Air 

Force Office of Special Investigations, as a trial counsel, and as a victim liaison support

his argument that a reasonable observer would question the impartiality of the military 

judge. Prior to forum selection, trial defense counsel questioned the military judge about 

these prior duty assignments. Appellant did not challenge the military judge for cause and 

later elected to have his case heard by the military judge alone. While Appellant focuses 

on an incomplete recital of the military judge’s career, a fully informed observer would 

also be aware that the military judge served as an area defense counsel and as a chief senior 

defense counsel. The military judge’s duty history would not cause a reasonable observer 

to view the proscribed communication as evidence of bias towards Appellant or favoritism 

towards the Government and its witnesses. 

Appellant next attempts to establish prejudice by pointing to his own testimony at 

the post-trial Article 39(a), UCMJ, hearing in which he asserted he would not have elected 

to be tried by a military judge had he known of the full content of the communication. We 

are not moved by Appellant’s second-guessing of his forum selection after the factfinder 

returned a guilty verdict. We decline to speculate whether Appellant might have received

a different result with a different forum. Moreover, the military judge testified at the posttrial Article 39(a), UCMJ, hearing that the proscribed conversation had “[n]o impact 

whatsoever” on his deliberations in either findings or sentence. The military judge 

acquitted Appellant of a charge of assault consummated by battery. As such, we cannot 

say that Appellant’s forum selection resulted in any unfair prejudice. 

Under these circumstances, these factors weigh against disqualification.
8 ACM S32317

When viewing the military judge’s pretrial communications with the SVC in the 

context of this trial, a reasonable person observing the proceedings would not doubt the 

court-martial’s legality, fairness, and impartiality. Therefore, the military judge did not 

abuse his discretion by failing to sua sponte recuse himself.

Unlawful Command Influence and Unlawful Influence

We review claims of unlawful command influence and unlawful influence de novo. 

United States v. Salyer, 72 M.J. 415, 423 (C.A.A.F. 2012); see United States v. Stombaugh,

40 M.J. 208, 213–14 (C.M.A. 1994) (applying the principles of unlawful command 

influence to issues of unlawful influence). Article 37(a), UCMJ, 10 U.S.C. § 837(a), states: 

“No person subject to [the UCMJ] may attempt to coerce or, by any unauthorized means, 

influence the action of a court-martial . . . or any member thereof, in reaching the findings 

or sentence in any case . . . .”

Our review of unlawful command influence is not limited to actual unlawful 

influence; we also consider any appearance of unlawful command influence which may be 

“as devastating to the military justice system as the actual manipulation of any given trial.”

United States v. Ayers, 54 M.J. 85, 94–95 (C.A.A.F. 2000) (quoting United States v. Allen, 

33 M.J. 209, 212 (C.M.A. 1991)). The test for the appearance of unlawful command 

influence is whether “an objective, disinterested observer, fully informed of all the facts 

and circumstances, would harbor a significant doubt about the fairness of the proceeding.” 

United States v. Lewis, 63 M.J. 405, 415 (C.A.A.F. 2006).

When raised on appeal, an appellant “bears the initial burden of raising unlawful 

command influence. [An appellant] must show: (1) facts, which if true, constitute 

unlawful command influence; (2) that the proceedings were unfair; and (3) that the 

unlawful command influence was the cause of the unfairness.” Salyer, 72 M.J. at 426. 

While the initial burden of showing unlawful command influence is low, an appellant must 

present “some evidence” of unlawful command influence beyond mere allegation or 

speculation. United States v. Stoneman, 57 M.J. 35, 41 (C.A.A.F. 2002). If an appellant 

raises some evidence of unlawful command influence, the burden shifts to the Government 

to rebut the allegation by persuading the court “beyond a reasonable doubt that: (1) the 

predicate facts do not exist; (2) the facts do not constitute unlawful command influence; or 

(3) the unlawful command influence did not affect the findings or sentence.” Salyer, 72 

M.J. at 415 (citing United States v. Biagase, 50 M.J. 143, 151 (C.A.A.F. 1999)).

Appellant has failed to present some evidence that the facts constitute unlawful 

command influence. Appellant has alleged that the SVC was acting with the mantle of 

command authority and attempted to influence the military judge. We find no facts to

support either proposition. In this case, the SVC represented a Government witness, not 

the Government or the command. Contrary to Appellant’s assessment, an SVC does not 

wield the mantle of command simply because the SVC is a military officer, was detailed 
9 ACM S32317

to the case by a military officer, and performed duties pursuant to an Air Force program. 

Appellant has provided no evidence that the SVC claimed to assert the positions of 

command or that he was representing anyone but his client. There are no facts which, if 

true, would indicate that he wielded the mantle of command, and thus he did not commit 

unlawful command influence. 

Moreover, nothing about the interaction between the SVC and the military judge 

suggests that the SVC attempted to influence the military judge on either the findings or 

the sentence. The evidence in the record shows the SVC intended to ascertain, by asking 

a question, whether the Defense had filed a motion regarding the termination of the victim’s 

interview which may have required his response or courtroom participation. There is no 

evidence that the SVC had the specific intent to influence the military judge in asking this 

question; nor is there any evidence that the military judge understood this as an attempt to 

influence him. Therefore, Appellant has not met his burden of providing some evidence 

which, if true, would constitute unlawful command influence.

Assuming, arguendo, that Appellant has met the first prong of the three-part test, we 

find that Appellant has not presented evidence beyond speculation that the proceedings 

were unfair or that an objective, disinterested observer fully informed of all the facts and 

circumstances would harbor a significant doubt about the proceedings’ fairness. Appellant 

argues that a reasonable observer “might believe”—given the military judge’s duty 

history—that the military judge would view the trial defense counsel who “badgered” a

witness with repetitive questions before trial as “unscrupulous and therefore less 

trustworthy in his arguments at trial.” However, as noted above, the military judge had 

also been an area defense counsel and a senior defense counsel. The entirety of the military 

judge’s duty history and his actions in this court-martial evidence no unfairness at any stage 

of this court-martial. Thus, Appellant failed to show that the proceedings were unfair or 

appeared to be unfair. 

Even if we were to conclude that Appellant had met his burden of producing some 

evidence of unlawful command influence, we are convinced beyond a reasonable doubt 

that the Government has rebutted those claims. The military judge testified that the pretrial 

conversation with the SVC had “[n]o impact whatsoever” on his deliberations in either 

findings or sentencing. We have no reason to question this statement. The military judge 

acquitted Appellant of one charge and sentenced Appellant to a term of confinement well 

below trial counsel’s recommendation. The Government has proved beyond a reasonable 

doubt that any possible unlawful command influence did not affect the findings or 

sentence, and an objective, disinterested observer, fully informed of all the facts and 

circumstances, would not harbor a significant doubt about the fairness of the proceeding.

Our resolution of Appellant’s claim of unlawful command influence does not end 

the inquiry. While most claims under Article 37, UCMJ, allege that the unlawful influence 

was committed by someone wearing the mantle of command, that is not a prerequisite to 
10 ACM S32317

establishing a claim under Article 37. As stated by our superior court, “It goes without 

saying that a violation of Article 37 does not automatically amount to unlawful command 

influence.” Stombaugh, 40 M.J. at 210–11; see also United States v. Denier, 47 M.J. 253, 

267 (C.A.A.F. 1997) (Sullivan, J. dissenting in part and concurring in the result) (“[A]ll 

that needs to be proved . . . is that someone subject to the UCMJ tried to improperly 

influence the . . . findings or sentence. Article 37 clearly indicates on its face that . . . 

command does not matter when the fairness of a court-martial is at issue.”). Both unlawful 

command influence and unlawful influence are proscribed by Article 37, but the latter does 

not require the act be done with the mantle of command authority. 

The test for unlawful influence is the same as the test for unlawful command 

influence, except that if an appellant meets his initial burden, the Government need only 

rebut the allegations by a preponderance of the evidence. Stombaugh, 40 M.J. at 213–14.

The issue of unlawful influence need not detain us long. As stated above, Appellant 

failed to present some evidence that the proceedings were affected by any actual or 

apparent unlawful influences. Moreover, even if Appellant met this threshold, we are 

convinced that the Government has proved beyond a reasonable doubt—much less by a 

preponderance of the evidence—that any alleged unlawful influence did not affect the 

findings or sentence. 

Legal and Factual Sufficiency

We review issues of legal and factual sufficiency de novo. Article 66(c), UCMJ, 10 

U.S.C. § 866(c); United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). Our 

assessment of legal and factual sufficiency is limited to the evidence produced at trial. 

United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993).

The test for legal sufficiency of the evidence is “whether, considering the evidence 

in the light most favorable to the prosecution, a reasonable factfinder could have found all 

the essential elements beyond a reasonable doubt.” United States v. Turner, 25 M.J. 324 

(C.M.A. 1987); see also United States v. Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002). 

However, “reasonable doubt,” in this context, does not require that the evidence be free 

from conflict. United States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986). “[I]n resolving 

questions of legal sufficiency, we are bound to draw every reasonable inference from the 

evidence of record in favor of the prosecution.” United States v. Barner, 56 M.J. 131, 134 

(C.A.A.F. 2001).

The test for factual sufficiency is “whether, after weighing the evidence in the record 

of trial and making allowances for not having personally observed the witnesses, [we are] 

convinced of the [appellant]’s guilt beyond a reasonable doubt.” Turner, 25 M.J. at 325. 

In conducting this unique appellate role, we take “a fresh, impartial look at the evidence,” 

applying “neither a presumption of innocence nor a presumption of guilt” to “make [our] 
11 ACM S32317

own independent determination as to whether the evidence constitutes proof of each 

required element beyond a reasonable doubt.” Washington, 57 M.J. at 399.

Appellant was a personnelist at Cavalier Air Force Station, North Dakota, and met 

1st Lt ES when she in-processed to Cavalier in January 2014. In April 2014, 1st Lt ES 

attended a going away-party for another lieutenant stationed at Cavalier. Appellant also 

attended the party. At some point in the evening, 1st Lt ES was having a conversation with 

Second Lieutenant (2d Lt) AH in the on-base movie theater. Appellant entered the theater, 

sat on the divider between the two chairs, put his arm around 1st Lt ES, and made a 

comment about her appearance. Appellant’s actions made 1st Lt ES uncomfortable.

Later that evening, 1st Lt ES was at the Mangy Moose, the on-base bar, with 

2d Lt AH and SSgt SB. Appellant approached the group and asked if they wanted to play 

a card game off-base. When no one responded, SSgt SB commented on the awkwardness 

of the situation and stated that he was going to make it more awkward. SSgt SB then 

grabbed Appellant’s nipple. Appellant responded by saying, “Oh, this is what we’re gonna 

do?,” or words to that effect. He then stepped forward and used his hand to touch 

1st Lt ES’s breast through her clothing. The contact made 1st Lt ES uncomfortable. 

Embarrassed, 1st Lt ES turned away from Appellant to end the contact. Appellant then 

exited the area by rubbing the front of his clothed body, including his hips, thighs, and 

penis, against 1st Lt ES’s back and buttocks while whispering to her, “I’ll see you later,”

or words to that effect.

The Defense requested the military judge make special findings in this case. The 

military judge detailed his findings on the record and in writing. In his four-page, written 

findings, the military judge correctly listed the elements of the offenses Appellant was 

charged with committing. He compared the elements of the offenses to the evidence that 

had been presented. We are convinced that a reasonable factfinder could find, as the 

military judge articulated in this case, that all of the essential elements had been proved 

beyond a reasonable doubt. Moreover, after making allowances for not personally 

observing the witnesses, we are convinced of Appellant’s guilt beyond a reasonable doubt.
12 ACM S32317

Conclusion

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). Accordingly, the approved findings and 

sentence are AFFIRMED.

FOR THE COURT

KURT J. BRUBAKER

Clerk of Court