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_______ _______ __________
No. ACM 39343

_______ _______ __________
UNITED STATES Appellee

v. Christopher W. FENDERSON Senior Airman (E

- 4) , U.S. Air Force, Appellant

_______ _______ __________ Appeal from the United States Air Force Trial Judiciary

Decided 1 0 April 201 9

_______ _______ __________ Military Judge: Marvin W. Tubbs, II

. Approved sentence: Bad

- conduct discharge, confinement for 4 yea rs, forfeiture of all pay and allowances, and reduction to E

- 1 . Sentence adjudged 7 June 2017 by GCM convened at McConnell Air Force Base, Kansas

. For Appellant: Major Meghan R. Glines

- Barney , USAF

. For Appellee: Lieutenant Colonel Joseph Kubler, USAF; Lieutenant Colonel G. Matt Osborn, USAF; Mary Ellen Payne, Esquire

. Before MAYBERRY

, HUYGEN , and MINK

, Appellate Military Judges

. Chief Judge MAYBERRY delivered the opinion of the c ourt, in which Senior Judge HUYGEN and Judge MINK joined.

_______ _______ __________
This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 18.4.

_______ _______ __________ MAYBERRY , Chief Judge:
Appellant was convicted

, c ontrary to his pleas, by a panel consisting of officer and enlisted mem b ers , of attempt ed entice ment of a minor to engage in sexual activity using a means of interstate commerce

, in violation of Article 80
,United States v. Fenderson , No. ACM 39343

2 Uniform Code of Military Justice (UCMJ), 10 U.S.C . § 880
, and 18 U.S.C. § 2422(b) ; and attempt ed sexual a buse of a child by communicating obscene language with the intent to gra tify his sexual desires

, attempted sexual a buse of

a child by intentionally sending a picture of his genitalia with the intent t o gratify his sexual desires

, and attempt ed recei pt and possess ion of child pornography, all in violation of Article 80, UCMJ

, 10 U.S.C . § 880

. Appellant’s adjudged and approved sentence consisted of a bad

- conduct discharge, confinement for four year s, forfeiture of all pay and allowances, and reduction to E

- 1

. A ppellant asserts a single assignment of error : the military judge abuse d his discretion in giving the standard Military Judges’ Benchbook reasonable doubt instruction

. We find no prejudicial err or and affirm.

I. B ACKGROUND The military judge’s instruction during his preliminary instructions on findings included the following language :

The g overnment has the burden of proving [Appellant’s] guilt by legal and competent evidence beyond a reasonable doubt.

. . . If,based on your consideration of the evidence, you are firmly convinced that [Appellant] is guilty of any offense charged, you must find him guilty. If on the other hand, you think there is a real possibility that [Appellant] is not guilty, you must give him the benefit of the doubt and find him not guilty.

This instruction was in accordance with the burden of proof instruction provided in the Air Force Benchbook

, Dept. of the Air Force, ch. 2, § V, ¶ 2

– 5

– 12 (2016). Trial d efense counsel di d not object. Appellant’s trial defense counsel were released on the third day of trial (after preliminary instructions and the presentation of Government witnesses). After a continuance was granted, new counsel were detailed and participated in the remain der of the trial. At the conclusion of the presentation of evidence, the military judge and all counsel discussed the draft instructions, which discussion included, inter alia , the following:

MJ [Military Judge] : Defense counsel, any requests for additiona l instructions or objections to the draft instructions as they now exist?

ADC1 [Trial Defense Counsel] : Yes, sir. One, we would request, in the beyond a reasonable doubt instruction, that the word “should” be substituted in for “must,” and instruct the me mbers on how it’s defined.
MJ: Trial counsel, what’s your position?United States v. Fenderson , No. ACM 39343

3 TC [Trial Counsel] : We would oppose that, sir. We would cite U.S. v. [McClour]

, a recent CAAF case. Although the case discussed that there was no plain error, because the defense did not object to it, I understand the defense is objecting to the “must” instruction, but the cour t suggested that there was no error in regards to the “should” versus “must” scenario. So we would as k that you keep the Air Force Instruction of “must.”

MJ: I intend to

-- well, I’m going to deny the request for that chan ge, based on the existing case law, as well as the fact that I’ve instructed on reasonable doubt, at the begin ning of this case, and didn’t make that change at that time. So based on the case la w alone, I believe that I could deny that, so

-- coupled with the fact that I have already instructed on reasonable doubt, I will deny that request. Defense counsel, next?
ADC1: Sir, just to make clear, I think it is, but to hit it again. We formally obje ct to the wo rd “must” staying in that.
MJ: Understood. I took that to be your objection, preserving it for any appellate review.
The instruction given to the members prior to their deliberation on findings stated : Lastly, the burden of proof to establish the guilt of the accused beyond a reasonable doubt is on the government

. . . . A “ reasonable doubt ” is a conscientious doubt, based upon reason and common sense, and arising from the state of the evidence

. . . . Proof beyond a reasonable doubt is proof th at leaves you firmly convinced of the accused's guilt

. . . . If, based on your consideration of the evidence, you are firmly convinced that the accused is guilty of any offense charged, you must find him guilty. If, on the other hand, you think there is a real possibility that the accused is not guilty, you must give him the benefit of the doubt and find him not guilty.

II. D ISCUSSION Appellant asserts that the military judge’s instruction amounted to a directed verdict. Appellant acknowledges th at United States v. McClour, 76 M.J. 23, 25 (C.A.A.F. 2017)

, specifically held otherwise but asserts that McClour was only reviewed for plain error and is therefore distinguishable here due to trial defense counsel’s objection to the instruction. We disagree and fin d that there was no error with respect to the instruction

.United States v. Fenderson , No. ACM 39343

4 Whether a panel was properly instructed is a question of law that we review de novo. McClour , 76 M.J. at 25 (citation omitted). The issue in McClour was whether the phrase “you must find him guilty” constituted a directed verdict. Specifically, the court held:
“The harm of [a] directed verdict

. . . is that it deprive[s] the [panel] of the power to determine guilt,” State v. Ragland , 105 N.J. 189, 519 A.2d, 1361, 1368 (N.J. 1986), and the accused of the statutory right to have his guilt determined by a panel of fellow servicemembers. Article 16, UCMJ, 10 U.S.C. § 816 (2012) ; R.C.M. 501(a); R.C.M. 903.
No such deprivation results from the use of the wor d “must” inthe instructions before us, which plainly leaves the determination of guilt beyond a reasonable doubt based on the evidence in the hands of the members: “[I]f, based on your consideration of the evidence , you ’ re firmly convinced that the accuse d is guilty of the offense charged, you must find him guilty.” (Emphasis added .) And the military judge reiterated that the panel members were the ones to determine guilt or innocence by “weighing and evaluating the evidence” and “us[ing] [their] own commo n sense, [their] own knowledge of human nature and the ways of the world.”

Id

. (A lterations in original).

T he United States Court of Appeals for the Armed Forces ( CAAF ) considered the prohibition on directed verdicts in criminal cases, citing Sullivan v. Louisiana , 508 U.S. 275, 277 (1993), numerous federal appellate and state supreme court decisions that conclud e d the “must find” language did not constitute a directed verdict, and United States v. Meeks , 41 M.J. 150, 157 n.2 (C.M.A. 1994) (noting an instr uction with the “must find” language as a possible replacement for the instruction then being used in courts

- martial , in accordance with the Federal Judiciary Center’s Pattern Criminal Instruction 28 (1987)). In the end, the CAAF held

, “ [I] t cannot be said that any error (if error there were) on the military judge's part in using the word ‘must’ in his burden of proof instruction is clear or obvious. ” McClour , 76 M.J. at 26.

T he recently published opinion in United States v. Shadricks

, 78 M.J. 720 (A.F. Ct. Crim. App

. 2019)

, applied de novo review

, based on trial defense counsel’s objection to the “must find” language, and held:
Nothing about the CAAF’s opinion in McClour suggests that court would have reached a different result had it applied a de

novo st andard of review. On the contrary, the CAAF noted “numerous federal appellate and state supreme courts” have upheldUnited States v. Fenderson , No. ACM 39343

5 the language of the challenged instruction. McClour , 76 M.J. at25 (citations omitted). In addition, the CAAF noted it had previously cited with approval very similar language in the Federal Judiciary Center’s Pattern Criminal Jury Instructions. Id. at 26 (citing United States v. Meeks , 41 M.J. 150, 157 n.2 (C.M.A. 1994)).

Id. at 723.

Based on trial defense counsel’s objection to the “must fi nd” language in the

pre

- deliberation findings instructions and pursuant to the holding in Shadricks

, we apply de novo review. When taken as a whole, the instructions in this case clearly stated the proper burden of proof and left it to the members to determine whether the Government's evidence met that burden. Nothing more is required. In accordance with the CAAF ’s decision in McClour and this court’s decision in Shadricks , w e find that the military judge’s reasonable doubt instruction in this case was appropriate.

III. C ONCLUSIONThe approved findings and sentence are correct in law and fact, and no error materially prejudicial to the substantial rights of Appellant occurred. Articles 5 9(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c) (2016) . Accordingly, the findings and the sentence are AFFIRMED

.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court