CORRECTED COPY 

UNITED STATES ARMY COURT 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 Theater Sustainment Command 

David H. Robertson, Military Judge 

Colonel Paula I. Schasberger, Staff Judge Advocate 

For Appellant: Lieutenant Colonel Melissa R. Covolesky, JA; Captain Katherine L. 

DePaul, JA (on brief); Lieutenant Colonel Christopher D. Carrier, JA; Captain 

Katherine L. DePaul, JA (reply brief). 

For Appellee: Lieutenant Colonel A.G. Courie III, JA; Major Melissa Dasgupta 

Smith, JA; Captain Christopher A. Clausen, JA (on brief). 

23 October 2017 

---------------------------------- 

SUMMARY DISPOSITION 

---------------------------------- 

Per Curiam: 

In his sole assignment of error, appellant asks us to grant “appropriate relief” 

because the military judge in his Military Rule of Evidence [hereinafter Mil. R. 

Evid.] 413 instruction told the panel that they could consider 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 error 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 appellant would know the answer to the defense 

counsel’s questions. Appellant also did not object to the trial counsel’s closing 

argument. We do not find either of these identified issues 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 specification of abusive sexual contact, two specifications of 

assault consummated by battery, one specification of assault with intent to commit 

rape, and three specifications of communicating a threat in violation of Articles 120, 

128, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920, 928, and 934 

(2012 & Supp. II) [hereinafter UCMJ]. The convening authority approved the 

adjudged sentence of a dishonorable discharge and five years confinement. This 

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

DISCUSSION 

The offenses all occurred when three soldiers stationed in Germany took a 

weekend getaway to Prague, Czech Republic. At trial, the victim, SPC JB, credibly 

described violent attacks by appellant when she rebuffed his desire to have sexual 

intercourse with her. Specialist JB’s testimony was corroborated by the testimony of 

the third soldier, physical evidence, including ripped clothing, a forensic 

examination, and deoxyribonucleic acid evidence. 

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

that it intended to use both charged and uncharged conduct under the rule. The 

defense filed a response, objecting to the government’s motion. However, the 

defense response was focused on that part of the government’s motion that sought to 

admit uncharged 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 evidence as it related to [the uncharged 

victim] PFC [W]; and, therefore, the only issues were as to 

PFC [JB], which is the charged alleged victim. Is that 

correct Government? 

ATC: Yes, Your Honor. 

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

413 notice? 

DC: Yes, Your Honor. 

MJ: Okay. Thank you, Counsel. 
MARK—ARMY 20160101 

3 

Given the appellant specifically withdrew any objection to the use of Mil. R. 

Evid. 413 as applied to charged conduct, 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 notice the waived error and 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 withdrawn his objection to the Mil. R. Evid. 413 

notice. While government counsel noted the withdrawal, they did not 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 forfeited error, the 

adversarial perspective of the parties may identify issues or interpret evidence in a 

manner that would benefit our analysis. 

* Corrected 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: