UNITED STATES COAST GUARD COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Dillon R. SAPP Lieutenant ( O

- 3 ) , U.S. Coast Guard

CGCM G 03 92 Docket No. 001

- 69

- 23

2 3 August 20 2 3

General c ourt

- martial sentence adjudged on 27 March 2 021

. Military Judge s : CDR Paul R. Casey
, USCG Appellate Defense Counsel: LT Schuyler B. Millham , USCG Appellate Government Counsel: LCDR Daniel P. Halsig, USCG LT Elizabeth M. Ulan , USCG

BEFORE M C CLELLAND, HERMAN & MANNION

Appellate Military Judges

M C CLELLAND, Chief Judge : Appellant was tried by general court

- martial composed of officers. Contrary to his pleas
, Appellant was convicted of one s pecification of assault consummated by a battery
, in violation of Article 128, Uniform Code of Military Justice (UCMJ) ; and one specification of conduct unbecoming an officer by providing false information on an application for a concealed handgun permit, in violation of Article 133, UCMJ. The court sentenced Appellant to forfeiture of $3,920

per mo nth for three months, 60 days restriction, and a punitive letter of reprimand

. Judgment was entered accordingly.

Before this Court, Appellant has assigned the following errors:
I. The evidence is legally insufficient to prove that Appellant knowingly provide d false information when his incomplete concealed handgun permit application was improperly filed by the Arlington County Circuit Court before he had signed it or attested that the information in the application was correct and complete under the penalty o f perjury.United States v. Dillon R. SAPP , No. 001

- 69

- 23 (C.G. Ct. Crim. App. 202 3 )

2 II. The military judge abused his discretion when he permitted Ms. JB to provide an unsworn victim impact statement during presentencing proceedings in violation of R.C.M. 1001(c) when she was not the victim of an offense of which appellant was fou nd guilty.

Legal S ufficiency of Article 133 E vidence Appellant argues that because his application for a concealed handgun permit was incomplete, lacking his signature, it should not have been accepted for filing, and therefore he cannot be held liable for submitting it. He also claims that because the military protective order he had received did not fit a p articular statutory definition of “protective order,” his answer to a question denying that he was the subject of a protective order was not false.

According to JB’s testimony, Appellant received a Military Protective Order on
5 September 2019, effective until 4 December 2019, restraining him from initiating contact or communication with Ms. JB and directing him to remain at least 500 feet away from her. (R. at
538

- 539.) Testimony of a deputy clerk at the Circuit Court Clerk’s Office in Arlington , Virginia, provided the following information. On 10 September 2019, Appellant presented an application for a concealed handgun permit at the Arlington Circuit Court Clerk’s Office, along with the filing fee and his military identification card or a copy of it. (R. at 651

- 65 5 .) Question 8.F. on the application form, “Are you the subject of, or named as a respondent in a restraining order or a protective order?” was answered “NO.” (Pros

. Ex. 11.) The application was unsigned, but it was
received and filed. Two days later
, he returned and sought to retract the application and receive a refund. Ultimately, an order was issued dismissing his application, but in the meantime, the police department had begun a background check. Ultimately, the Commonwealth Attorney’s office filed a recommendation that the application be denied on grounds of a protective order. (R.
at 656

- 660.)

We review questions of legal sufficiency de novo. “Evidence is legally sufficient if, viewing the evidence in the light most favorable to the prosecution and drawing every reasonable inference from the evidence of record in favor of the prosecution, any rational trier of fact could
have found the essentia l elements of the crime beyond a reasonable doubt.” United States v.United States v. Dillon R. SAPP , No. 001

- 69

- 23 (C.G. Ct. Crim. App. 202 3 )

3 Flores , 82 M.J. 737, 742 (C.G. Ct. Crim. App. 2022) (cleaned up) (quoting United States v. King , 78 M.J. 218, 221 (C.A.A.F. 2019)).

The specification of which Appellant was found guilty allege s that he “knowingly provide[d] false information on an application for a concealed handgun permit . . . .” Whether or
not the office to which he provided the application should have accepted it without a signature, under their rules and procedures, has no bearing on the matter. There is evidence that he submitted the application
, which was accepted , resulting in commencement of other processes
that evidently revealed the existence of his military protective order. Th e submission of the application pr ovided the false information, as alleged.

As to the definition of “protective order,” there is no reason to assume the definition Appellant identifies must be use d in interpreting the question on the application form. The form notes that certain orders “m ay be an automatic disqualifier” (emphasis added), citing a particular
statute. That statute makes it unlawful for a person to purchase a firearm if that person is subject to a protective order issued under any of a number of specified legal regimes . However, this does not mean that a protective order of a different provenance is of no relevance for the purposes of a concealed handgun permit. Further, it does not alter the plain meaning of the question, and of Appellant’s answer, which was false within that plain meaning.

T he evidence was legally sufficient to support the court

- martial’s finding of guilty.

Victim Impact Statement The following is based on the testimony of witnesses Ms. JB and D r. FR

. (R. at 467

- 472;
R. at 674

- 678

. ) Appellant and Ms. JB took a trip to the area of St. Petersburg, Florida, in September 2017. In a bar there, they encountered a college friend of hers, D r. FR, whom she had not seen or talked with since college, nine years earlier. Excited, she introduced Appellant and
D r. FR, and then engaged in conversation with D r. FR. She showed him something on her phone relating to her employment, an d while he was looking at it, Appellant grabbed him by the neck and pushed him against the wall. Appellant was escorted from the bar, and Ms. JB followed him after apologizing to D r. FR. Shocked at what had occurred, she asked Appellant why he hadUnited States v. Dillon R. SAPP , No. 001

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- 23 (C.G. Ct. Crim. App. 202 3 )

4 done wha t he did, and he answered that he didn’t like the way D r. FR was looking at her. On the basis of this incident, Appellant was found guilty of assault consummated by a battery.

Appellant argues
, consistent with his contention at trial, that the military judge abused his discretion by allowing consider ation of the unsworn victim impact statement of Ms. JB, when she was not the victim of any offense of which Appellant was found guilty.

A crime victim of an offense of which the accused ha s been found guilty has the right to be reasonably heard at the presentencing proceeding relating to that offense. Article 6b (a)(4)(B)
, UCMJ; Rule for Courts

- Martial
, Manual for Courts

- Martial, United States (2019 ed.) (R.C.M.) 1001(c) (1). A crime victim i s defined as an individual who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense of which the accused was found guilty. Article 6b(b), UCMJ; R.C.M. 1001(c)(2)(A). R.C.M. 1001(c)(2)(B) defines victim impa ct as “any financial, social, psychological, or medical impact on the crime victim directly relating to or arising from the offense of which the accused has been found guilty .”

A significant portion of Ms. JB’s unsworn statement describes her friendship with D r. FR: that she knew him “very well during college ; ” that they “spent quality time together, working out, going on hikes, and discussing our future plans regarding what we both were striving for in our careers ; ” and that running into him after so many years was “a joyous moment for us” until Appellant attacked him, “altering our friendship forever.” The statement goes on to set forth the emotional impact on her of the offense: “To say I was shocked, humiliated and

ap palled is an understatement. There are no words to articulate the whirlwind of emotions I was trying to navigate at that time. I can’t imagine what Frank was thinking or feeling. I am still

re mo rseful for what happened to him that night.”

Caselaw has not set limits on who can be a crime victim or the level of connection necessary between a purported victim and the offense , nor has there been significant legal development concerning the harm required

. Appellant insinuates that the military judge’s acceptanc e of the harm to Ms. JB as sufficient to qualify for consideration “neglects the requirement that the harm be ‘direct. ’ ” We disagree. We find that the harm Ms. JB describedUnited States v. Dillon R. SAPP , No. 001

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5 direct ly resulted from Appellant’s assault on D r. FR, and qualifies for consideration

. Th e military judge did not abuse his discretion

.

Even if it were error to allow consideration of Ms. JB’s unsworn statement, it would be
harmless error. “ When the Court finds error in the admission of sentencing evidence (or sentencing matters), the test for prejudice is whether the error substantially influenced the adjudged sentence.” United States v. Edwards , 82 M.J. 239, 246 (C.A.A.F. 2022) (cleaned up) (quoting United States v. Barker , 77 M.J. 377, 384 (C.A.A.F. 2018) )

. “ The Court considers four factors when deciding whether an error substantially influenced an appellant's sentence: (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.” Id. at 247 (cleaned up) (quoting Barker , 77 M.J. at 384). In this case, the G overnment argued for a sentence of six months confinement and dismissal, while the defense argued for a sentence of restriction and a reprimand. The sentence adjudged was restriction, a reprimand, and forfeitures of half pay for
three months. We find that consideration of Ms. JB’s statement did not substantially influence
the sentence

.

Decision
We determine that the findings and sentence are correct in law and, on the basis of the entire record, should be approved. Accordingly, the findings of guilty and the sentence, a s approved below, are affirmed.

Judges HERMAN and MANNION concur

.

For the Court,

Sarah P. Valdes Clerk of the Court