### 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 In fantry Division David L. Conn, Military Judge (arraignment) Jeffery D. Lippert, Mi litary Judge (trial) Lieutenant Colonel Michael S. Devine, Staff Judge Advocate

For Appellant: Lieutenant Colonel Charles D. Lozan o, JA; Captain Heather L. Tregle, JA; Captain Matthew L. Jalandoni, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colone l A.G. Courie III, JA; Major John K. Choike, JA; Major Diara Z. Andrews, JA (on brief).

31 October 2016

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

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CAMPANELLA, Senior Judge:

An enlisted panel sitting as a genera l court-martial convicted appellant, contrary to his pleas, of one specification of rape, two specifications of assault consummated by battery, and one specification of obstructio n of justice in violation of Articles 120, 128, and 134 of the Uniform Code of Military Justice, 10 U.S.C. §§ 920, 928, and 9 34 (2012) [hereinafter UCMJ]. Th e panel sentenced appellant to a bad-conduct discharge, eighteen months confinement, forfeitu re of all pay and allowances, and a reduction to the grade of E-1. The co nvening authority approved only so much of the senten ce as provides for a bad-c onduct discharge, seventeen months confinement, forfeiture of all pay and allo wances, and a reduction to the grade of E-1.

This case is before us for review pursuant to Ar ticle 66, UCMJ. Appellate counsel raises one assignment of error, which requires di scussion but no relief.MORRILL —ARMY 20140197

2 Appellant personally rais ed matters pursuant to United States v. Grostefon

, 12 M.J. 431 (C.M.A. 1982) which we find, after due consideratio n, to be wit hout merit.

BACKGROUND

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

counsel indicated to the milit ary judge that he had a motion but wanted to call a
defense witness first because the witness was going to be unavailable th e next day. After the witness’ testimony, the military judge dismisse d 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 re sumed. Later in the trial, the military judge referenced a Rule for Courts-Martial [hereinafter R.C.M.] 917 motion when discussing the rele vance of testimony from a diff erent 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 pa nel. That’s what he is charged with. That ’s what’s going to the panel
to make a decision.

The panel found appellan t guilty of all charge s 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 su bsequently authenticated and appellant failed to raise error in his post-trial matters. On appeal, appellant assert s the omission of the Article 39(a) proceeding where the defense moved for a find ing of not gu ilty and the military judge made a ruli ng on the R.C.M. 917 moti on renders the transcript
nonverbatim and the record of trial incomplete, necessitati ng relief under Rule for Courts-Martial R.C.M. 1103(f).

LAW AND DISCUSSION

“[T]he record of trial shall include a verbatim tr anscript of all sessions except sessions closed for deliberations and voting when [a]ny pa rt 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 omi ssion 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 rais e a presumption of prejudice but it can be rebutted byMORRILL —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 thereb y triggering the requirement for a verba tim transcript. It is clear fro m 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 an d the military judge’s findin gs and conclusions of law

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

Despite the substantia l omission, we find that any presumptio n of prejudice is rebutted by the record. Our review of the record convince s 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 upo n 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 reco rd of trial is sufficien tly complete to permit reviewing agencies to determine with reasonable certainty the substance and sense of the question . . . th en 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 recor d, the findings of guilty and the sentence as approved by the conv ening authority are AFFIRMED.

Senior Judge TOZZI and Ju dge CELTNIEKS concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court

* We note that appellate defense counse l has not submitted any evidence from appellant or trial defense counsel indicati ng other substantial discussions occurred during the omitted Arti cle 39(a) session. MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: