UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Technical Sergeant MARCO A. NAVARRO

United States Air Force

ACM 38790

2 9 September 2016

Sentence adjudged 2 3 October 2014 by GC M convened at Dyess Air Force
Base, Texas

. Military Judge: Wendy L. Sherman (sitting alone)

.

Approved sentence: Dishonorable discharge

, confinement for 3 4 years

, forfeiture of all pay and allowances

, reduction to E

- 1 , and a reprimand

.

Appellate Counsel for Appellant: Major Thomas A. Smith

, Major Michael

A. Schrama

, and Captain Jarett Merk

.

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

Gerald R. Bruce, Esquire

.

Before

MAYBERRY, SANTORO, and C. BROWN 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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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 sitting alone as a general court

- martial convicted Appellant, pursuant to his pleas, of one specification of aggravated sexual contact on divers occasions

with a child under age 12, one specification of abusive sexual contact on divers occasions

with a child older than 12 but younger than 16 years of age

, one specification of forcible sodomy on divers occasions with a child under age 12, and one specification of forcible sodomy with a child younger than 16 years of age , in violation of Articles 120 and 125, UCMJ, 10 U.S.C. §§ 9 20, 925.2 ACM 38790

Contrary to his pleas, the military judge convicted Appellant of one specification of aggravated sexual contact on divers occasions with a child under age 12 and one specification of aggravated sexual contact with a child between 12 and 16 years of age by using strength sufficient that the child could not avoid or escape the contact , in violation of Article 120, UCMJ. 1 She also convicted him of one specification of forcibly sodomizing

a child between 12 and 16 years of age on divers occasions

, i n violation of Article 125, UCMJ, and two specifications alleging indecent acts on divers occasions with a child under

16 years of age , in violation of Article 134, UCMJ, 10 U.S.C. § 934.

The adjudged and approved sentence was a dishonorable discharge, c onfinement for 34 years, total forfeitures of pay and allowances, reduction to E

- 1, and a reprimand. The convening authority deferred both adjudged and mandatory forfeitures until action and waived mandatory forfeitures for six months for the benefit of Ap pellant’s children and

spouse. 2

Appellant raises four assignments of error: (1) his conviction on one specification alleging indecent acts is factually insufficient, (2) he is entitled to relief for post

- trial processing delay, (3) his conviction on a second specification alleging indecent acts is factually insufficient, and (4) his sentence is inappropriately severe. 3 We specified an additional issue related to the military judge’s consideration of evidence pursuant to Mil.

R. Evid. 414.

We conclude that the military judge erred in considering evidence pursuant to Mil.

R. Evid. 414 and that the error was not harmless. We thus set aside the findings of guilt as to the affected specifications, which moots the first and third assignments of error. We affirm the findings with respect to the charges and specifications to which Appellant pled guilty

, reassess the sentence , and decline to grant relief on his post

- trial processing claim

.

Background

Appellant and his wife , MB, had two sons, CN1 and CN2. 4 CN1 was born in 1998

and CN2 was born in 2000. Appellant’s marriage to MB began deteriorating in 2009 and ultimately resulted in divorce. The separation and divorce resulted in Appellant’s living alone with his two sons beginning in 2010 while stationed at Dyess Air Force Base (AFB)

, Texas. Appellant told the military judge that he was depressed and wanted human connection, so he began looking for reasons to engage in sexual behavior with his sons.

1 Appellant pled guilty to the lesser

- included offense of abusive sexual contact with a child but was convicted of the greater offense.

2 We address an issue regarding adjudged and approved forfeitures in our analysis on the reassessed sentence

. 3 The third and fourth assignments of error are raised p ursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982).

4 Both boys’ initials are CN, so this opinion refers to the older as CN1 and the younger as CN2.3 ACM 38790

During a roughly five

- year period, sometimes s everal times per week and sometimes skipping weeks, Appellant showered with CN2 and touch ed his genitals. Appellant r epeatedly rubbed his (Appellant’s) penis on CN2’s buttocks and between his “butt cheeks” while both lay in Appellant’s bed naked. Appella nt taught CN2 how to perform fellatio and forced him both to perform and receive fellatio on multiple occasions

. Appellant also engaged in anal sodomy with CN2 on multiple occasions. CN2 occasionally resisted Appellant’s molestations

, but Appellant used his superior physical strength to force

the contact to occur. Appellant frequently ejaculated as a result of this contact. CN1 was present for some, but not all, of this contact. Some of the contact occurred prior to CN2’s

12 th birth day and the contact continued after he turned 12 years old

.

Appellant also admitted that during a roughly two

- year period, he touched CN1’s genitalia on multiple occasions under circumstances similar to his molestation of CN2. Appellant taught CN1 how to masturbate and ejaculate. Like CN2, CN1 objected to Appella nt’s conduct, but Appellant was persistent and used his own hands to manipulate

CN1’s hands. This conduct occurred while CN1 was under 16 years of age

. Appellant also admitted forcibly sodomizing CN1

, and

, in exchange, Appellant agreed to take the boys t o Dairy Queen.

Appellant told both boys not to report his conduct and attempted to make them feel special by telling them they had a bond that others would n o t understand.

Additional facts nece ssary to resolve the assignment s of error are included below.

I. THE TRIAL

A. Appellant’s G uilty P lea

With respect to CN1, Appellant pled guilty to aggravated sexual contact by having him touch Appellant’s genitalia on divers occasions and forcible sodomy while assigned to Dyess AFB

. With respect to CN2, Appellant pled guilty to touching his genitalia, anus,
and buttocks “at worldwide locations” on divers occasions between October 2007 and April 2012 , before CN2 had attained the age of 12 ; doing the same on divers occasions

while at Dyess AFB between April 2012 and June 2012, after CN2 had attained the age of 12 but had not yet attained the age of 16 ; and committing forcible sodomy with CN2 “at worldwide locations” on divers occasions between October 2007 and April 2012

.

Following Ap pellant’s entry of guilty pleas to those offenses, the military judge was advised that the parties had entered into a stipulation of fact. Before accepting the stipulation

, the military judge told Appellant t hat the stipulation would be used in two

ways: “to determine if you are, in fact, guilty of the offenses to which you have pled guilty ,” (emphasis added) and to determine an appropriate sentence. Appellant agreed to those uses4 ACM 38790

of the stipulation of fact and it was admitted into evidence against him. At no point did the military judge tell Appellant that his stipulation of fact could be used against him with respect to any contested offenses. 5

The military judge next conducted the inquiry required by United States v. Care , 40 C.M.R. 247 (C.M.A. 1969 ). She began by telling Appellant that his statements would be used to determine whether he was guilty of the offenses to which he pled guilty but that he did not give up his constitutional rights (including the right against self

- incrimination) with

resp ect to the offenses to which he pled not guilty. She further told Appellant that any statements he made could be used in the sentencing portion of the trial. Finally, the military judge told Appellant that his admissions with respect to a lesser

- included offense (LIO) could be used to establish certain elements of the greater offense. At no point did she ever advise Appellant that his statements may be used against him on any other contested, charged offenses.

Thereafter

, Appellant admitted facts in sup port of his guilty pleas

. At the conclusion

of the Care inquiry , the military judge told Appellant that his pleas were “accepted,” but she declined to enter findings consistent therewith because the G overnment intended to proceed to trial on the offenses to which Appellant had pled not guilty. 6

B. Trial on the R emaining O ffenses

Prior to trial on the contested specifications, the G overnment asked the military judge, pursuant to Mil. R. Evid. 414, to consider Appellant’s admissions in the stipulation

of fact and Care inquiry when she determined whether Appellant was guilty of the remaining specifications. 7 Over defense objection, the military judge agreed to do so. 8

5 The record suggests that trial counsel and trial defense counsel did expect that the stipul ation of fact would be used with respect to the contested charges. Trial defense counsel did not object to its consideration and the first paragraph of the stipulation states that it could be used in “any findings and sentencing proceedings” related to the charges and speci fications referred to trial. The military judge did not discuss that statement with Appellant before she accepted the stipulation. Neither side identified the inconsistency between the stipulation (and the lawyers’ apparent intent) and the military judge ’s statements to Appellant

, and responded affirmatively when the military judge asked them whether they agreed that the stipulation could only be used in the ways she described.

6 It appears the military judge declined to enter findings based on a note in Section 2

- 2

- 8 of the Department of the Army Pamphlet 27

- 9, Military Judges ’ Benchbook (1 January 2010 ) , which advises judges not to enter guilty findings

on a lesser

- included offense when the government intends to attempt to prove the greater offense. Ap pellant pled guilty to only one lesser

- included offense: abusive sexual contact with CN2 (the military judge subsequently convicted him of the greater offense of aggravated sexual conduct by force).

7 Although the G overnment now argues that the military ju dge did not consider the stipulation of fact as substantive evidence, the record of trial does not support that conclusion. The trial counsel repeatedly referred to the stipulation of fact in his questioning of witnesses and did not cover information cont ained in the stipulation because, as he said on one occasion, “the military judge has a lot of detail from the Stipulation of Fact.”

8 The Government did not introduce any evidence in its case

- in

- chief, by testimony or otherwise, of Appellant’s Care inquir y statements. Because all parties and the military judge assumed that Appellant’s statements were in evidence, we shall do the same for purposes of our analysis.5 ACM 38790

The stipulation of fact was lengthy and provided background information about Appellant, the relationship he had with his wife and children, and detail about Appellant’s repeated acts of sexual molestation of his sons, none of which was introduced or substantially repeated through other evidence in the government’s case

- in

- chi ef.

Neither victim testified. However, pursuant to the pretrial agreement, the

G overnment introduced recorded interviews of each. Both CN1 and CN2 told the interviewer of Appellant’s sexual abuse, but the interviewer rarely obtained more than superficial information about the specific acts alleged. In one example, CN1 told the interviewer that Appellant touched his (CN1’s) penis in the shower. The interviewer did

n o t obtain any information about where or when this touching occurred, and at the end of

th e interview in an apparent attempt to summarize everything CN1 was reporting, the interviewer completely omitted any mention of this incident. The remainder of CN1’s interview was similarly superficial and did not meaningfully di fferentiate CN1’s

statemen ts about the admitted conduct from the contested conduct. While CN2’s interview was slightly more detailed, nearly all of CN2’s statements were agreement or disagreement with the interviewer’s yes/no questioning.

The G overnment also introduced testimony from MB and her husband, DB. Among other things, MB testified about the initial disclosures made by CN1 and CN2, which were generally consistent with their statements to investigators, and their demeanor during those

di sclosures. She also testified that after CN1’s initial disclosure, early in the stages of abuse, she confronted Appellant who admitted putting his penis in CN1’s face and said it was a joke. MB did not take any action after that initial disclosure but di d several years

later when CN1 made his second disclosure. MB testified that Appellant frequently talked about his “special connection” with his sons, but she did not understand the import of that until she heard the boys’ interviews with investigators.

DB testified about CN1 and CN2’s disclosures to him, which again were generally consistent with their recorded interviews, as well as their demeanor during the disclosures. DB also provided screen shots from text message conversations with Appellant after DB

confronted him. In the text messages, Appellant begs DB not to “end [his] life,” by reporting his conduct. Finally, DB testified that he witnessed both boys’ interviews with investigators, and that both victims’ statements to investigators were consistent with what both boys had previously disclosed to him.

Without objection and pursuant to the terms of the pretrial agreement, the

Government also introduced recordings of two pretext telephone calls made to Appellant.

We discuss the content of t he pretext telephone calls more fully in our reassessment of the sentence, but of note is that while Appellant admit ted engaging in criminal conduct, he d id not directly admit to any of the contested conduct.6 ACM 38790

While there was evidence that one or both vic tims may have engaged in sexualized behavior that may have been inconsistent with their chronological age

— masturbation and a relationship with another young boy

— this evidence could as easily have been the result

of the admitted offenses as the contested of fenses.

Finally, the Government repeatedly used the stipulation of fact and Appellant’s

Care inquiry admissions in its opening statement and closing argument to bolster the victims’ credibility and highlighted differences between the victims’ statements and Appellant’s a dmissions

. In one example, the trial counsel argued that Appellant’s desire to gratify his sexual desires with respect to the contested offenses was proven by “his own guilty plea.” In another example, trial counsel argued that Appellant ’s pleas of not guilty were an effort to “mitigate and extend his sentencing argument,” and used Appellant’s

Care inquiry statements to bolster that argument.

The military judge convicted Appellant of touching CN1’s genitalia and buttocks

“at worldwide lo cations” on divers occasions between October 2007 and October 2010

, and fondling and placing his hands upon CN1 on divers occasions while at Ramstein AB. 9 She also convicted him of using force to engage in sexual contact with CN2 while at Dyess AFB; committing forcible sodomy with him on divers occasions while at Dyess AFB; and fondling him and placing Appellant’s hand on CN2’s genitals on divers occasions while at

Ramstein AB. 10

II. LEGAL ANALYSIS

This procedural posture sets up three distinct but related questions: First, could Appellant’s stipulation of fact properly be used as evidence against him with respect to any of the contested specifications other than the greater offense of the LIO to which he pled guilty ? Second, could his Care inquiry admissions properly be used as evidence against him with respect to any of the contested specifications other than the greater offense? And

third , could evidence that he molested CN1 or CN2 properly be considered pursuant to Mil. R. Evid. 414 on the contested specifications?

A . Use of the S tipulation of F act

The use of the stipulation of fact on the contested specifications was error. “Military law imposes an independent obligation on the military judge to ensure that the accused

9 Appellant pled not guilty to, and was acquitted of, touching CN1’s genitalia, anus, and but tocks “at worldwide locations” between October 2010 and June 2012, putting his penis in CN1’s mouth on divers occasions while at Dyess AFB, and touching CN1’s genitalia, anus, groin, and buttocks, while at Dyess AFB.

10 Appellant pled not guilty to, and was acquitted of, penetrating CN2’s anus and mouth with his penis on divers occasions while at Dyess AFB; touching CN2’s genitalia, anus, groin, and buttocks on divers occasions while at Dyess AFB; and committing sodomy o n divers occasions with CN2 while at Ramstein AB.7 ACM 38790

understands what he gives up because of his plea and the accused’s consent to do so must

be ascertained. ” United States v. Resch , 65 M.J. 233, 237 (C.A.A.F. 2 007). In this case

, the colloquy between the military judge and Appellant about the stipulation of fact was insufficient to ensure that Appellant understood the effect of the stipulation of fact he

entered into with the Government. 11

B . Use of the Care Inquiry

An accused’s statements in a Care inquiry are not “available as evidence tending to prove an entirely different offense when neither offense is included in the other as a lesser

offense thereof.” United States v. Dorrell , 18 C.M.R. 424, 425 (1 954). The policy limiting the use of judicial admissions made during a guilty plea inquiry is a long

- standing tenet of military justice: “To hold a plea of guilty to one offense as an admission supplying a fact common to that offense and also to a comple tely separate offense to which the accused has pleaded not guilty would in effect deprive the accused of a substantial right accorded him by law.” United States v. Caszatt , 29 C.M.R. 521, 706

- 0 7 ( C.M.A. 1960) ; s ee also United

States v. Flores , 69 M.J. 366, 369

- 70 (C.A.A.F. 2011) (“A military judge who advises an accused that she is waiving her right against self

- incrimination only to the offenses to which she is pleading guilty must not later rely on those statements as proof of a separate offense.”) A plea of guilty to a lesser

- included offense may, however, be used to establish elements common to both the charged and lesser

- included offense. Dorrell

, 18 C.M.R. at
425

- 2 6.

C . Evidence C onsidered P ursuant to Mil. Evid. 414

Mil. R. Evid. 414 permits the admission of evidence of “any other offense of child molestation” to show propensity to commit a charged act of “child molestation.” A military judge must make three threshold findings: (1) the accused must be charged with an offense of child molestation as defined by Mil. R. Evid. 414, (2) the proffered evidence must be

evidence of the accused’s commission of another offense of child molestation as defined by Mil. R. Evid. 414, and (3) the evidence must be relevant under Mi l. R. Evid. 401 and

402. United States v. Yammine , 69 M.J. 70, 73

- 74 (C.A.A.F. 2010).

We review the military judge’s admission of Mil. R. Evid. 414 evidence under an

abuse of discretion standard. United States v. Dewrell , 55 M.J. 131, 137 (C.A.A.F. 2001).

11 Even if there were an argument that Mil. R. Evid. 414 changes this long

- standing precedent with respect to the permissible uses of Care inquiry statements, we would still conclude that use of Appellant’s Care inquiry statements against him in this case violated his right against self

- incrimination. He could not knowingly, intelligently, and consciously waive his right against self

- incrimination

— or determine whether doing so would be in his best interest

—

w hen the military judge essentially changed the rules on him with no warning. It was only after he admitted guilt, and after the military judge had told him that what he said could not be used against him with respect to the contested specifications, that she agreed to do just that. Appellant was placed in a situation from which there was no meaningful

escape. He could withdraw his pleas and lose the benefit of his pretrial agreement or he could persist in his pleas and be forced to give up his constituti onal right against self

- incrimination with respect to charges he contested.8 ACM 38790

“ The abuse of discretion standard is a strict one, calling for more than a mere difference of opinion. ” United States v. Solomon , 72 M.J. 176, 180 (C.A.A.F. 2013) ( quoting United

States v. White , 69 M.J. 236, 239 (C.A. A.F. 2010) ). “ A military judge abuses [ her ]

discretion when : (1) the findings of fact upon which [ she ] predicates [ her ] ruling are not supported by the evidence of record; (2) if incorrect legal principles were used; or (3) if
[ her ] application of the correct legal principles to the facts is clearly unreasonable. ” United

States v. Ellis , 68 M.J. 341, 344 (C.A.A.F. 2010) ( citing United States v. Mackie , 66 M.J. 198, 199 (C.A.A.F. 2008)).

But for the military judge’s decision not to enter findings on the charged offenses to which Appellant pled guilty, this case would initially appear to be in the same posture

as United States v. Wright , 53 M.J. 476 (C.A.A.F. 2000). In Wright , the accused pled guilty to, and had findings of guilty e ntered on, the offense of indecently assaulting victim 1. He pled not guilty to rape and a second specification of indecent assault, both involving victim 2 and occurring at a different time and place. Pursuant to Mil. R. Evid. 413, the

G overnment used e vidence of the assault on victim 1 to prove that he had also committed the rape and indecent assault of victim 2. Our superior court held that this use of Mil. R.

Evid. 413 was not error. Wright

, 53 M.J. at 483

.

Each service court of criminal appeals to consider the issue had determined that Mil. R. Evid. 413 (and by extension Mil. R. Evid. 414 ) 12 was constitutional when applied to charged conduct as long as the appropriate threshold inquiries and safeguards were met.

United States v. Barnes , 74 M.J. 692 (A. Ct. Crim. App. 2015) ; United States v. Bass , 74 M.J. 806 (N.M. Ct. Crim. App. 2015) ; United States v. Maliwat

, ACM 38573 (A.F. Ct. Crim. App. 19 October 2015) (unpub. op.)

. Our superior court, however, recently held

otherwise and overruled the service courts. In United States v. Hills , the court concluded

that “ [n] either the text of [Mil. R. Evid.] 413 nor the legislative history of its federal counterpart suggests that the rule was intended to permit the government to show propensity by relying on the very acts the government needs to prove beyond a reasonable

doub t in the same case .” 75 M.J

. 350, 352 (C.A.A.F. 2016) (emphasis added).

Hills was charged with abusive sexual contact and two specifications of sexual

assault. All of the alleged criminal acts occurred at the same time and place and with the

same victi m. Hills pled not guilty to all charges and specifications. At trial, over defense objection, the military judge granted the government’s motion, pursuant to Mil. R. Evid.
413, to admit all of Hills’ charged conduct as evidence of his propensity to commi t the sexual assaults with which he was charged.

In finding that the military judge erred, our superior court said, “it seems obvious that it is impermissible to utilize [Mil. R. Evid

. ] 413 to show that charged conduct

12 United States v. Dewrell , 55 M.J. 131, 138 n.4 (C.A.A.F. 2001) (“[a]s Rules 413 and 414 are essentially the same in substance, the analysis for proper admission of evidence under either should be the same”).9 ACM 38790

demonstrates an accused’s propensit y to commit . . . the charged conduct.” Hills

, 75 M.J

at 353 (ellipsis in original)

. The court further noted that neither it nor any Federal Circuit Court of Appeals has permitted Mil. R. Evid. 413 (or its Federal counterpart) evidence “of charged conduct to which an accused has pleaded not guilty in order to show a propensity

to commit th e very same charged conduct.” Id. at 354.

Finally, the court noted that Mil. R. Evid. 413

w as intended to address recidivism, and it permits bolstering the credibility of a victim because [k]nowledge that the defendant has committed rapes on other occasions is frequently critical in assessing the relative plausibility of [the victim’s]

claims. While [Mil. R. Evid.] 413 was intended to permit the members to consider the testimony of other victims with respect to an accused’s past sexual offenses, there is no indication that [Mil. R. Evid.] 413 was intended to bolster the credibility of the named victim through inferences drawn from the same allegations of the same named victim.

Id. at 355 (quotation marks and citations omitted) ( second and third alterations in original) (emphasis added).

The facts of the instant case are somewhere between Wrigh t and Hills

. On the one hand, Appellant clearly intended to plead guilty to acts of child molestation and those offenses would not be part of the fact

- finder’s deliberation on the contested charges. Hills

, 75 M.J at 354. Although the military judge did not enter findings on the admitted allegations until after she had deliberated on the contested specifications, we see nothing in the record of trial to call into question the factual or legal basis of Appellant’s g uilty pleas. We do not believe the outcome in this case should turn on whether the military judge entered findings of guilt on the admitted charges before she deliberated on the contested charges. While in hindsight it might have been preferable to have announced findings as suggested by the Military Judges’ Benchbook (i.e., on all admitted specifications except

the lesser

- included offense), deciding this case on that basis would elevate form over

substance. See McCarthy v. United States , 394 U.S. 459, 4 67 n.20 (1969) (“[M]atters of reality, not mere ritual, should be controlling.”) (quoting Kennedy v. United States , 397 F.2d 16, 17 (6th Cir. 1968)). 13

On the other hand, although Appellant told the military judge he wanted to plead guilty and made admiss ions consistent with that desire, there was no adjudication of guilt before his admissions were considered with regard to the offenses to which he pled not

13 In other cases, there may be a meaningful distinction between admitting the fact that an accused had previously been convicted of a sexual assault versus admission of the facts underlying the conviction. We see no reason to draw

such a distinction here.10 ACM 38790

guilty. Additionally, unlike in Wright , the conduct alleged in this case was with the same

victims and often occurred at substantially the same times and place s , suggesting that its

admission would serve to bolster the cred ibility of the very same victims

. Or, to put it more simply, admission of this evidence would enable the G overnment to argue, “ Your Honor

, if he admitted he did all of these other things to the same two boys, that must mean they’re telling the truth about these other things they said he did to them as well.” The prosecutor

in this case made essentially that argument, and that appears to be the bolstering Hills said

is inappropriate.

We read our superior court’s decision in Hills to say that although Wright still stands for the proposition that conduct to which an accused ple a d s guilty may properly be
admitted as “evidence to bolster another charge, so [long as] it was no longer an offense on which the members had to deliberate,” Hills

, 75 M.J at 354, that is no t the case when

the evidence was “intended to bolster the credibility of the named victim through inferences

drawn from the s ame allegations of the same named victim.” Id. at 355. 14

Based on our understanding of our superior court’s rationale, we must conclude that the military judge abused her discretion (in that she applied an erroneous view of the law)

when she considered that Appellant molested CN1 on other occasions as propensity evidence with respect to the contested specifications involving CN1. Likewise, we

conclude that it was error to consider that Appellant molested CN2 on other occasions as propensity evidence with respect to the contested specifications involving CN2.

It is less clear, however, whether Appellant’s admissions about his conduct with

CN1 or CN2 were admissible as propensity evidence with regard to the specifications involving the other victim. Alth ough it is true that the victims are different (as in Wright ), the victims are brothers, reported substantially similar conduct at substantially the same time, had discussed the allegations with each other, and described some events in which

both were vict imized simultaneously. We conclude that this scenario is distinguishable

from Wright and that our superior court would share the same concerns about the admission of evidence in this case as they did in Hills

. We

, therefore

, also conclude that it was error

to consider , pursuant to Mil. R. Evid. 414, evidence of Appellant’s molestation of CN1 as evidence on the contested crimes against CN2 and vice versa. Our conclusion that the military judge erred in several respects (and t he appropriate remedy for those errors) is based on the extremely unusual procedural posture of this case. We do not conclude that a stipulation of fact or Care inquiry may never be considered as substantive evidence under

Mil. R. Evid. 414 . We only conc lude that under the circumstances of this case it was error.

14 We recognize that our superior court also noted that Wright had pleaded guilty to the offense the government sought to admit under Mil. R. Evid. 413, and that as a result of his plea, Wright was no longer presumed innocent.11 ACM 38790 D . Prejudice

The military judge erred in considering the stipulation of fact and Appellant’s Care inquiry statements for any purpose other than to establish the common elements of the

lesser

- included offense to which he pled guilty. This is an error of constitutional

dimension. See Flores , 69 M.J. at 368. The test for determining whether constitutional error is harmless is whether, “beyond a reasonable doubt, the error did not contri bute to the

defendant’s conviction or sentence.” United States v. Kreutzer , 61 M.J. 293, 298 (C.A.A.F. 2005) (quoting United States v. Kaiser , 58 M.J. 146, 149 (C.A.A.F. 2003). An error is not harmless beyond a reasonable doubt when “there is a reasonable possibility that the [error] complained of might have contributed to the conviction.” United States v. Moran , 65 M.J. 178, 187 (C.A.A.F. 2007) ( quoting Chapman v. California , 386 U.S. 18, 24 (1967)).

T he military judge also erred in considerin g, pursuant to Mil. R. Evid. 414, evidence

of the crimes Appellant admitted in his Care inquiry when determining whether he was guilty of the contested charges and specifications. Erroneous admission of Mil. R. Evid. 414 evidence is usually a non

- constitutional error tested only to determine whether it had “a substantial influence on the findings

. ” Solomon , 72 M.J. at 182, cited with approval in

Hills , 75 M.J. at 356. However, Hills noted that when the finder of fact is invited “to bootstrap their ultima te determination of the accused’ s guilt with respect to one offense using the preponderance of the evidence burden of proof with respect to another offense ,” this runs the risk of “undermining both ‘ the presumption of innocence and the requirem ent that the prosecution prove guilt beyond a reasonable doubt, ’ ” both of which are

constitutional in nature. Hills

, 75 M.J. at 357 (quoting Wright , 53 M.J. at 481 )

. 15

Because this was a bench trial, there were no instructions given on the burden of proof or permissible use of the Mil. R. Evid. 414 evidence. The military judge told the parties,

I will not confuse the acts that the accused had pled guilty to

with the acts that prosecution seeks to prove up that are remaining on the Charge Sheet. The evidence does contribute to the fact finder arriving, though, at a verdict on the other charges provided that it’s used properly. And I can assure the parties that I will appropriately avoid spillover as I am required

to do. . . . Again, and in this judge alone trial, I will not use the proffered evidence for any improper purpose such as discussed by the defense counsel like spillover.

15 An appellant may waive constitutional and evidentiary rights and objections. Had Appellant been properly advised with respect to the uses of the stipulation of fact or whether (or what) use may have been made of his allocution, the outcome may well have been different.12 ACM 38790

The military judge did not articulate what she believed was the proper use of this evidence

or whether she i ntended to apply the standards contained in the pattern instruction found

in the Military Judge’s Benchbook (the use of which our superior court found to be

constitutional error in Hills )

. 16

The evidence on the contested specifications, as outlined above, was far from overwhelming

. The question is not whether the factfinder may have reached the same result without considering the erroneously

- admitted evidence. It is also not whether we ourselves believe Appellant may be guilty of any or all of the contes ted offenses. On this record, we cannot conclude that the erroneously

- considered evidence did not at least substantially influence the findings

. 17 We therefore set aside and dismiss with prejudice the findings of guilt with respect to all offenses other than those to which Appellant entered provident guilty pleas

. 18

Post

- Trial Processing

Trial concluded on 24 October 2014. The record of trial was completed on

3 December 2014. Appellant provided clemency matters pursuant to Rule for Court

Martial (R.C. M.) 1105 on 12 February 2015. The convening authority took action on

1 March 2015 and

, on 11 March 2015

, substituted a second action to correct an

administrative error on the first.

Appellant asserts this court should grant him relief in light of the 128 days that elapsed between the completion of trial and the convening authority ’ s first action or, in the alternative, relief for the 138 days that elapsed between completion of trial and the convening authority’s substituted action. Under United States v. Moreno , courts apply a presumption of unreasonable delay “where the action of the convening authority is not taken within 120 days of the completion of trial.” 63 M.J. 129, 142 (C.A.A.F. 2006). Appellant does not assert any prejudice, and we independ ently find Appellant suffered no prejudice from the delay that would authorize Moreno relief.

16 Trial counsel did, in fact, request that the military judge use the pattern instruction from the Military Judges’

Benchbook , arguing that the “instruction that you would give is strong and the accused’s predisposition to engage in child molestation is something you can fairly consider, given the abuse th at he pled guilty to and that he described; same victims, always the same setting, same things.” Nothing the military judge said suggested she viewed the law differently. While under other circumstances the military judge would be entitled to the presumption that s he knew and followed the law with respect to proper uses of Mil. R. Evid. 414 evidence , the state of this record does not enable us to apply that presumption

. 17 Because the error was not harmless under the lower, non

- constitutional, standard, it must neces sarily also not have

been harmless under the higher constitutional standard.

18 We are cognizant of our authority to order a rehearing on the specifications whose findings of guilt we set aside. Article 66(d), UCMJ, 10 U.S.C. § 866(d). The findings we affi rm meaningfully reflect the gravamen of Appellant’s criminal conduct. We are able to reassess Appellant’s sentence on the remaining specifications and the sentence as reassessed appropriately serves Appellant’s, the victims’, and society’s interests in th e justice and the finality of verdicts. We, therefore, decline to authorize a rehearing on the contested specifications.13 ACM 38790

Appellant instead argues the court should nonetheless grant relief under United States v. Tardif

, 57 M.J. 219, 223

- 24 (C.A.A.F. 2002). Under Article 66(c), UCMJ, 10 U.S.C. § 866(c), this court is empowered “to grant relief for excessive post

- trial delay without a showing of ‘actual prejudice’ within the meaning of Article 59(a), if it deems relief appropriate under the circumstances.” Ta rdif , 57 M.J. at 224 ( quoting United States
v. Collazo , 53 M.J. 721, 727 (Army Ct. Crim. App. 2000)). In United States v. Toohey , 63 M.J. 353, 362 (C.A.A.F. 2006), our superior court held that a service court may grant relief even when the delay was not “ most extraordinary.” The court held, “The essential inquiry remains appropriateness in light of all circumstances, and no single predicate criteria of ‘most extraordinary’ should be erected to foreclose application of Article 66(c), UCMJ,

consideration or relief.” Id

.

This court set out a non

- exhaustive list of factors we consider when evaluating the appropriateness of Tardif relief in United States v. Gay , 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’ d , 75 M.J. 264 (C.A.A.F. 2016). Those factors include how long the delay exceeded appellate review stand ards, the reasons noted by the g overnm ent for the delay, whether the g overnment acted with bad faith or gross indifference, evidence of institutional neglect, harm to the appellant or the institutio n, the goals of justice and good order and discipline, and, finally, whether the court can provide any meaningful relief given the passage of time. Id

. No single factor is dispositive, and we may consider other factors as appropriate. Id

.

The G overnme nt submitted an affidavit from the non

- commissioned officer in charge (NCOIC) of military justice for the installation legal office that prosecuted Appellant’s case

. The NCOIC’s affidavit outlines the milestones in the post

- trial processing of this case, including Appellant’s approved request for a 20

- day extension to submit clemency matters to the convening authority. 19 Appellant does not allege bad faith

or gross neg ligence. The record of trial spanned seven volumes. The most significant gap occurred during the December holiday period. Appellant’s assertion of his right to speedy

post

- trial processing occurred 330 days after the case was docketed before us and afte r he had requested five enlargements of time.

Applying the Gay standards, we conclude Appellant is not entitled to any Tardif

relief. The relatively minor nature of the post

- trial processing delay, given the factors involved, does not rise to the level which would adversely affect the public’s perception of the fairness and integrity of the military justice system, nor is necessary to vi ndicate Appellant’s right to timely post

- trial processing.

19 Our Army colleagues have concluded that the statutorily

- authorized 20

- day extension to submit clemency matters should not be counted when determining compliance with Moreno

. United States v. Banks , __ M.J. __, Army 20130948 (Army Ct. Crim. App. 16 August 2016). In resolving this assignment of error we neither adopt nor reject

Banks , as we conclude that on the facts of this case the result would be the same.14 ACM 38790 Sentence Reassessment

Having set aside and dismissed with prejudice the guil ty finding s on all but the offenses to which Appellant pled guilty , we must either reassess Appellant’ s sentence or remand for a rehearing on sentence

. Applying the analysis set forth in United States v.

Winckelmann , 73 M.J. 11 (C.A.A.F. 2013); United States v. Buber , 62 M.J. 476 (C.A.A.F. 2006); United States v. Moffeit , 63 M.J. 40 (C.A.A.F. 2006); and United Stat es v. Sales , 22 M.J. 305 (C.M.A. 1986), and carefully considering the entire record and the totality of the circumstances, we are confident that we can reassess the sentence. There has not been a change in the penalty landscape as Appellant’s guilty pleas already subjected him to confinement for life without the possibility of parole

.

Appellant’s conduct was particularly aggravated. In addition to repeatedly molesting and sexually assaulting his sons over a prolonged period and causing them life

long trau ma , Appellant displayed a shocking attitude toward his conduct (which is indicative of his rehabilitation potential) in his conversation with DB on the pretext telephone call. With respect to the Dairy Queen incident, Appellant said that he suggested the boys perform fellatio on him as a joke and before he could stop them, CN1 exposed Appellant’s penis and engaged in sodomy “with a smirk on his face.” Appellant also said

that 9 8% of the time, the boys would come into his bedroom knowing that he slept in the nude, reach under the covers, and “play with” him.

Appellant also made comments suggesting that he was proud of the close relationship he had with his sons. He told DB that his sons would jump into the shower with him on their own (which was inconsistent with, and not credible when compared to
the victims’ statements )

.

Appellant told DB that he had been researching pedophilia and did n o t think he was a pedophile because he was n o t having fantasies about children. When DB asked whether Appellant had ever asked the boys to have sexual contact with each other, or record their sexual activities, Appellant replied, “I don’t think they would do that (unintelligible) anyway, but, I never thought of that, no. I never thought of that.” Appellant later told DB

that he was seeking counseling, that his fantasies were trending toward younger people, that “there’s something wrong with [him], ” and that he wanted to get fixed.

Throughou t the call, Appellant blamed his sons for initiating the sexual contact

. He also rationalized his conduct by repeatedly saying that he did n o t force his sons to engage in the conduct or do anything to “lure” them in. Appellant told DB that his sons performed sex acts with and for him because they wanted to and that he just let things happen.

The tri al was before a military judge and t he offenses to which Appellant pled guilty are ones with which we have experience and familiarity. Therefore, we are confident that we can reliably determine that, even if the military judge had sentenced Appellant only for15 ACM 38790

the offenses to which he pled guilty , the military judge would have imposed a sentence of no less than a dishonorable discharge, 29 years of confine ment, total forfeitures, reduction

to E

- 1, and a reprimand. In reassessing Appellant’s sentence, we necessarily have also concluded that the 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. Snelling , 14 M.J. 267, 268 (C.M.A. 1982); United Stat es v. Bare , 63 M.J. 707, 714 (A.F. Ct. Crim. App. 2006), aff’d, 65 M.J. 35 (2007). The maximum imposable sentence was a dishonorable discharge, confinement for life without the possibility of parole

, total forfeitures, reduction

to E

- 1 , and a reprimand

. Appellant had negotiated a pre

- trial agreement with the convening authority limiting confinement to 35 years ; no other sentence components were affected by the pre

- trial agreement . The reassessed sentence is less than the maximum sentence Appellant himsel f had negotiated.

We must resolve one additional issue regarding Appellant’s sentence. Appellant included a footnote in his pleading suggesting there was a possibility that the waived

forfeitures had never in fact be en paid to his ex

- wife and current spouse. Since Appellant

did not raise this issue as a legal error, we will apply the same test as if the error had been

in the initial staff judge advocate’s recommendation (SJAR) and went unchal l enged

.

If defense counsel does not make a timely comment on an error

or omission in the [SJAR] , the error is waived unless it is prejudicial under a plain error analysis. Because [the a]ppellant did not object to the recommendation of the SJA, we

must determine whether there was error, whether it was plain, and whether it materially prejudiced a substantial right of the accused. With respect to an error in an SJA’s post

- trial recommendation, the prejudice prong involves a relatively low

threshold

— a demonstration of some colorable showing of possible prejudice. Our review is de novo.

United States v. Capers , 62 M.J. 268, 269

– 70 (C.A.A.F. 2005) (citations and quotation marks omitted).

On 2 3 October 2014

, A ppellant asked the convening authority to “defer automatic

forfeitures and reduction in rank until . . . action and waive automatic forfeitures for a period of six months ” so he could continue to provide financial support to his dependent

minor child ren and his current spouse . On 2 1 November 201 4 , the convening authority deferred the reduction in rank, mandatory forfeitures and adjudged forfeitures until the date of action and delayed decision on the request for waiver of automatic forfeitures until

action. On 12 February 2015, in the clemency submissi on, A ppellant reasserted his request
that the convening authority waive automatic forfeitures . There is no mention of any further action involving the adjudged forfeitures.16 ACM 38790

Both the SJAR and the Addendum recommended that the adjudged sentence be approved and the automatic forfeitures be waived. The convening authority followed the SJA’s advice and approved the adjudged sentence and waived the automatic forfeitures.

Air Force Instruction 51

- 201, Adminis tration of Military Justice , ¶ 9.28.7 (6 June 2013), explains:

The convening authority must defer, suspend, mitigate or disapprove all or part of adjudged total forfeitures in order to waive any amount of mandatory forfeitures. Mandatory forfeitures can be waived for the benefit of the accused’s dependents only to the extent adjudged

forfeitures are not in effect. See United States v.

Emminizer

, 56 M.J. 441 (C.A.A.F. 2002).

The convening authority’s action waiving the automatic forfeitures in this case clearly articulates his intent to waive what he believed were the only remaining forfeitures

associated with the sentence. The error stems from the omission in the SJAR and the Addendum that to waive the automatic forfeitures, the convening authority needed to suspend or disapprove the adjudged forfeitures. We find the SJA ’ s failure to advise the convening authority to take ameliorative action on adjudged forfeitures while seemingly waiving automatic forfeitures was plain error that materially prejud iced Appellant’s substantial right. See United States v. Escobar , 73 M.J. 871, 877

- 78 (A.F. Ct. Crim. App. 2014).

“[T]he Courts of Criminal Appeals have broad power to moot claims of prejudice . . . .” United States v. Wheelus , 49 M.J. 283, 288 (C.A. A.F. 1998). In the case of plain error in the SJAR, R.C.M. 1106(c)(6) provides that “appropriate corrective action shall be taken by appellate authorities without returning the case for further action by a convening authority.” We

, therefore

, take correc tive action that eliminates the prejudicial effect of the error and determine that the adjudged total forfeitures of pay and allowances should not be approved. See United States v. Cook , 46 M.J. 37 , 39

- 40 (C.A.A.F. 1997).

As such, our reassessed sentence is confinement for 29 years, a dishonorable discharge, reduction to E

- 1, and a reprimand.

We have given individualized consideration to this Appellant, his conduct, his military career and accomplishments, and the othe r relevant matters within the record of trial, including considering that his guilty plea may be the first step toward his rehabilitation. Appellant’s reassessed sentence is not inappropriately severe for his multiple crimes.17 ACM 38790 Conclusion

The findings of guilt of S pecification 3 of Addit ional Charge I and S pecification 4 of Additional Charge III are set aside and those specification s are dismissed with prejudice

. The findings of guilt of Additional Charge IV and its specifications are set aside and

dis missed with prejudice

. The finding of guilt of the greater offense of aggravated sexual conduct with a child as alleged in specification 2 of Additional Charge I is set aside.

The findings of guilt as to S pecification 1 of Additional Charge I, the lesser

- included

offense of abusive sexual contact with a child in S pecification 2 of Additional Charge I,

and Additional Charge I are affirmed. The findings of guilt as to S pecification 3 of Additional Charge III and of Additional Charge III are affirmed. The findings of guilt as to the specifications of Second Additional Charges I and II and as to Second Additional Charges I and II are affirmed.

The findings of guilt , as modified, and the sentence

, as reassessed

, are correct in law and fact, and no error mat erially prejudicial to the substantial rights of Appellant occurred with regard to the affirmed findings and sentence . Articles 59(a) and 66(c), UCMJ

. Accordingly, the findings , as modified, and s entence , as reassessed, are AFFIRMED

.

FOR THE COURT

KURT J. BRUBAKER

Clerk of Court