CORRECTED COPY



## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, FEBBO, and WOLFE Appellate Military Judges

UNITED STATES, Appellee

v. Private E2 KELLAN D. MARK United States Army, Appellant

ARMY 20160101

Headquarters, 21st Thea ter Sustainment Command
David H. Roberts on, Military Judge
Colonel Paula I. Schasber ger, Staff Judge Advocate

For Appellant: Lieutenant Colonel Melissa R. Covolesky, JA; Capt ain Katherine L. DePaul, JA (on brief); Lieutenant Colone l Christopher D. Carrier, JA; Captain Katherine L. DePaul, JA (reply brief).

For Appellee: Li eutenant Colonel A.G. Courie III, JA; Major Melissa Dasgupta Smith, JA; Captain Christopher A. Clausen, JA (on brief).

23 October 2017

---------------------------------- SUMMARY DISPOSITION

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Per Curiam:

In his sole assignment of er ror, appellant asks us to grant “appropriate relief” because the military judge in his Military Rule of Eviden ce [hereinafter Mil. R. Evid.] 413 instru ction told the panel th at they could consid er charged misconduct. 1 Although this instruction was error pursuant to United States v. Hills , 75 M.J. 350 (C.A.A.F. 2016), we find that appellant waived this er ror when he specifically withdrew any objection to the instruction.

1 Appellant raises several non-frivolous matters pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982)

. However, appellant did not object at trial when SPC JB repeatedly stated that appell ant would know the an swer to the defense counsel’s questions. Appella nt also did not object to the trial counsel’s closing argument. We do not find ei ther of these identified issu es constitute plain error. Appellant’s remaining Grostefon issues likewise do not warrant relief.MARK—ARMY 20160101

2 A general court-martial composed of officer and enlisted members convicted appellant of one specifica tion of abusive sexual contac t, two specifications of assault consummated by batter y, one specification of assa ult with inte nt to commit rape, and three specifications of communicating a threat in violation of Articles 120, 128, and 134, Uniform Code of Military Ju stice, 10 U.S.C. §§ 920, 928, and 934 (2012 & Supp. II) [hereina fter UCMJ]. The conveni ng authority ap proved the adjudged sentence of a dishonorable disc harge and five years confinement. This

case is before us for review pursuant to Ar ticle 66, UCMJ.

DISCUSSION

The offenses all occurred when three soldiers stationed in Germany took a weekend getaway to Prague, Cz ech Republic. At trial, th e victim, SPC JB, credibly

described violent att acks by appellant when she rebuffe d his desire to have sexual intercourse with her. Spec ialist JB’s testimony was co rroborated by th e testimony of the third soldier, physica l evidence, including ripp ed clothing, a forensic examination, and deoxyribon ucleic acid evidence.

In pretrial motions, the government prov ided notice under Mil. R. Evid. 413

that it intended to use bo th charged and uncharged co nduct under th e rule. The defense filed a response, obj ecting to the government’ s motion. However, the defense response was focused on that part of the government ’s motion that sought to admit uncharge d conduct.

At a pretrial Article 39(a) session the military judge addressed the motion as

follows: MJ: The next motion the court will address briefly is [the] government’s motion to admit evidence under M. R. E. 413. . . . During the R.C.M. 802 session and via email the government informed the court that it did not plan to admit any 413 ev idence as it related to [the uncharged victim] PFC [W]; and, therefore, the only issues were as to PFC [JB], which is the charge d alleged victim. Is that

correct Government?

ATC: Yes, Your Honor.

MJ: And, Defense, based on th at, you didn’t oppose the

413 notice?

DC: Yes, Your Honor.

MJ: Okay. Tha nk you, Counsel.MARK—ARMY 20160101

3 Given the appellant specifically withdrew any objection to th e use of Mil. R. Evid. 413 as applied to charged conduc t, we find appellant has waived any Hills error. Having reviewed the record of trial, to include the overwhelming evidence of guilt, we see no reason to no tice the waived error an d provide appellant relief. 2

CONCLUSION

The findings of guilty and the sentence are AFFIRMED.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court

*2 We briefly note two issues . First, neither party addressed in their filings the legal significance of appellant having withdraw n his objection to th e Mil. R. Evid. 413 notice. While government counsel noted the withdrawal , they did no t argue its significance. Second, in future cases, we believe we would benefit from the parties specifically addressing whether this court should exercise its unique authority under Article 66(c), UCMJ, to notice waived and forfeited error. While we review the
entire record to determine whether we should notice waived and fo rfeited error, the adversarial perspective of the parties may identify issues or interpret evidence in a
manner that would be nefit our analysis.

* Corrected MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: