UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

TOZZI, CAMPANELLA, and CELTNIEKS 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Sergeant MICHAEL C. MORRILL 

United States Army, Appellant 

ARMY 20140197 

Headquarters, 7th Infantry Division 

David L. Conn, Military Judge (arraignment) 

Jeffery D. Lippert, Military Judge (trial) 

Lieutenant Colonel Michael S. Devine, Staff Judge Advocate 

For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Captain Heather L. 

Tregle, JA; Captain Matthew L. Jalandoni, JA (on brief). 

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III, 

JA; Major John K. Choike, JA; Major Diara Z. Andrews, JA (on brief). 

31 October 2016 

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SUMMARY DISPOSITION 

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CAMPANELLA, Senior Judge: 

 An enlisted panel sitting as a general court-martial convicted appellant, 

contrary to his pleas, of one specification of rape, two specifications of assault 

consummated by battery, and one specification of obstruction of justice in violation 

of Articles 120, 128, and 134 of the Uniform Code of Military Justice, 10 U.S.C. §§ 

920, 928, and 934 (2012) [hereinafter UCMJ]. The panel sentenced appellant to a 

bad-conduct discharge, eighteen months confinement, forfeiture of all pay and 

allowances, and a reduction to the grade of E-1. The convening authority approved 

only so much of the sentence as provides for a bad-conduct discharge, seventeen 

months confinement, forfeiture of all pay and allowances, and a reduction to the 

grade of E-1. 

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

counsel raises one assignment of error, which requires discussion but no relief. 
MORRILL —ARMY 20140197 

2

Appellant personally raised matters pursuant to United States v. Grostefon, 12 M.J. 

431 (C.M.A. 1982) which we find, after due consideration, to be without merit. 

BACKGROUND 

 

At trial, after the conclusion of the government’s case-in-chief, defense 

counsel indicated to the military judge that he had a motion but wanted to call a 

defense witness first because the witness was going to be unavailable the next day. 

After the witness’ testimony, the military judge dismissed the panel members for the 

evening and recessed the court-martial. The next page of the transcript reflects that 

the court reconvened the next day and the defense’s case resumed. Later in the trial, 

the military judge referenced a Rule for Courts-Martial [hereinafter R.C.M.] 917 

motion when discussing the relevance of testimony from a different defense witness: 

MJ: [Appellant’s] not charged with having a disorder. 

He’s charged with a rape case on a particular day. And on 

that particular--as I ruled last night in the 917 motion, 

there is some evidence--that’s going to the panel. That’s 

what he is charged with. That’s what’s going to the panel 

to make a decision. 

The panel found appellant guilty of all charges and specifications, indicating that the 

military judge determined there was enough evidence to proceed and that he denied 

defense’s R.C.M. 917 motion. 

The record of trial was subsequently authenticated and appellant failed to 

raise error in his post-trial matters. On appeal, appellant asserts the omission of the 

Article 39(a) proceeding where the defense moved for a finding of not guilty and the 

military judge made a ruling on the R.C.M. 917 motion renders the transcript 

nonverbatim and the record of trial incomplete, necessitating relief under Rule for 

Courts-Martial R.C.M. 1103(f). 

LAW AND DISCUSSION

 “[T]he record of trial shall include a verbatim transcript of all sessions 

except sessions closed for deliberations and voting when [a]ny part of the sentence 

adjudged exceeds six months confinement. . . .” R.C.M. 1103(b)(2)(B). Literal 

compliance with the term “verbatim,” meaning “[w]ord for word; in the same 

words,” is not required, but a “substantial” qualitative omission renders a transcript 

nonverbatim. United States v. Lashley, 14 M.J. 7, 8 (C.M.A. 1982). Whether an 

omission of testimony from a record of trial is “substantial” is analyzed on a caseby-case basis. United States v. Abrams, 50 M.J. 361, 363 (C.A.A.F. 1999). A 

substantial omission will raise a presumption of prejudice but it can be rebutted by 
MORRILL —ARMY 20140197 

3

the government. United States v. Harrow, 62 M.J. 649, 654-55 (A.F. Ct. Crim. App. 

2006). 

Here, appellant’s sentence exceeded six months thereby triggering the 

requirement for a verbatim transcript. It is clear from the record that the military 

judge denied defense’s R.C.M. 917 motion. Because counsel arguments in support 

of the R.C.M. 917 motion and the military judge’s findings and conclusions of law 

are omitted from the record of trial,* it constitutes a substantial omission. 

Despite the substantial omission, we find that any presumption of prejudice is 

rebutted by the record. Our review of the record convinces us that the evidence is 

sufficient to sustain the findings of guilty. See R.C.M. 917(g) (“[T]he findings need 

not be set aside upon review solely because the motion for finding of not guilty 

should have been granted upon the state of the evidence when it was made.”). We 

find the record of trial is adequate to permit informed review by this court and any 

other reviewing authorities. See United States v. Carmans, 9 M.J. 616, 621 

(A.C.M.R. 1980) (“If the record of trial is sufficiently complete to permit 

reviewing agencies to determine with reasonable certainty the substance and 

sense of the question . . . then prejudice is not present.”). Accordingly, we find 

the record in appellant’s case is both substantially verbatim and complete for 

appellate review purposes. 

CONCLUSION 

Upon consideration of the entire record, the findings of guilty and the 

sentence as approved by the convening authority are AFFIRMED. 

Senior Judge TOZZI and Judge CELTNIEKS concur. 

FOR THE COURT: 

 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

 

*

 We note that appellate defense counsel has not submitted any evidence from 

appellant or trial defense counsel indicating other substantial discussions occurred 

during the omitted Article 39(a) session. 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: