UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

No. ACM 38943

________________________

UNITED STATES

Appellee

v.

Evan G. SMITH

Captain (O-3), U.S. Air Force, Appellant

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Appeal from the United States Air Force Trial Judiciary

Decided 14 July 2017

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Military Judge: Mark W. Milam.

Approved sentence: Dismissal. Sentence adjudged 11 July 2015 by 

GCM convened at Joint Base San Antonio-Lackland, Texas. 

For Appellant: Major Jarett Merk, USAF; Major Thomas A. Smith, 

USAF.

For Appellee: Major Mary Ellen Payne, USAF; Major Meredith L. 

Steer, USAF; Captain Matthew L. Tusing, USAF; Gerald R. Bruce, Esquire.

Before MAYBERRY, HARDING, and C. BROWN, Appellate Military 

Judges.

Judge HARDING delivered the opinion of the court, in which Senior 

Judge MAYBERRY and Judge C. BROWN joined.

________________________

This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 18.4.

________________________

HARDING, Judge:

Contrary to his pleas, a general court-martial consisting of a military 

judge convicted Appellant of one specification of assault consummated by a 
United States v. Smith, No. ACM 38943

2

battery upon a child under 16 years of age; one specification of perjury by giving false testimony; and one specification of child endangerment by culpable 

negligence in violation of Articles 128, 131, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 928, 931, 934.1 The military judge sentenced Appellant to a dismissal.

On appeal, Appellant raises the following assignments of error: (1) the evidence is factually and legally insufficient to sustain his perjury conviction; 

(2) the evidence is factually insufficient to sustain his conviction for assault 

consummated by a battery upon a child under 16 years of age;2 and (3) the 

military judge’s excepting out “on divers occasions” rendered his finding of

guilty for child endangerment under the Additional Charge and its Specification ambiguous, thereby precluding this court’s review under Article 66, 

UCMJ, 10 U.S.C. § 866.

As to Appellant’s first assignment of error, we agree that the evidence is 

factually insufficient and grant relief. As to Appellant’s third assignment of 

error, we agree that under the circumstances of this case, the military judge’s 

finding of guilty except the words “on divers occasions” rendered the verdict 

fatally ambiguous and grant relief. Finding no further error, we affirm the 

remaining conviction. 

I. BACKGROUND

Appellant and SS married in December 2010. SS was previously married 

to MC and had two daughters with him. After her divorce from MC, SS maintained primary custody of their daughters. Once married to Appellant, SS 

and her two daughters lived with him. Appellant and SS subsequently had 

two sons of their own, HS born on 17 June 2011 and BS born on 16 September 2012. KF, SS’s mother, lived with Appellant, SS, and their children at 

various times between Appellant’s and SS’s marriage and 2 December 2013.

Relevant to the child endangerment specification, KF testified to three occasions where Appellant placed a newly-born BS onto a changing table. The 

specification was based on these instances and alleged that Appellant “did, on 

divers occasions, endanger the mental health, physical health, safety, and 

 

1 The military judge acquitted Appellant of one specification of damaging nonmilitary property; one specification of rape by using force; one specification of forcible 

sodomy; one specification of assault consummated by a battery; and one specification 

of assault consummated by a battery upon a child under 16 years of age in violation 

of Articles 109, 120, 125, and 128, UCMJ, 10 U.S.C. §§ 909, 920, 925, 928.

2 Raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
United States v. Smith, No. ACM 38943

3

welfare of BS by throwing and dropping him, and that such conduct constituted culpable negligence.” At trial, KF recalled these events occurring between the middle of September 2012, shortly after BS was born, and the end 

of October 2012.3 The first instance described by KF occurred when BS was 

two weeks old. KF did not directly observe this incident but testified her 

daughter SS had, in a very animated state, told her “I can’t believe that MFer 

dropped my son.” KF asked her daughter what she meant. KF testified her 

daughter repeated the statement of disbelief, but KF could not recall whether 

she said “dropped” or “tossed” the baby but that it was one or the other. KF 

then asked her daughter what happened. According to KF, SS then described 

that Appellant had thrown their son onto the changing table specifically attributing the word “throw,” “threw,” or “thrown” to SS’s descriptions of Appellant actions six times during her testimony.

Contrary to the testimony of her mother, SS testified that she had no 

memory or recollection of Appellant “dropping” their newborn son. She further denied that she ever told her mother that Appellant “dropped” him. SS 

did, however, testify that she remembered a conversation about the general 

topic of Appellant changing his diaper. SS went on to describe an occasion 

where Appellant had wrapped his son in a blanket after bathing him and 

then placed him on the changing table. SS further testified that after Appellant had unraveled him from the blanket there was a “little blup” when their 

newborn son was placed on the changing pad. The changing pad was described by SS as being concave with four inches of padding thickness around 

the sides or perimeter and sloping down to two inches of padding thickness at 

the center. After additional questioning by trial counsel, SS testified that 

“when [Appellant] pulled out the towel, [BS] just dropped a little on the 

changing table.” SS agreed, “if she had to put a measurement on it,” that the 

drop was a couple of inches but she “[did not] consider a little two-inch drop 

an abuse.” SS stated that she “got after” Appellant about this because “he 

wasn’t as secure as [she] wanted him to be” and further stated that being 

post-partum she “would get after [Appellant] over anything at that time.” SS 

furthered testified that she believed that BS was about three months old 

when the “blup” happened.4 On cross-examination, SS also used the term

“bomp” to describe how her son was placed on the changing table after Appellant removed the blanket. Upon questioning from the military judge, SS clari-

 

3 The child endangerment specification alleged that the events took place “between 

on or about 16 September 2012 and on or about 30 November 2012.” 

4 This would be approximately 16 December 2012 and thus technically 16 days outside the charged time-frame. 
United States v. Smith, No. ACM 38943

4

fied that Appellant’s removal of the blanket did not result in her baby being 

placed down on the changing pad after spinning or twisting. “It [sic] more a 

plop.”

KF, in addition to relaying what she claimed her daughter told her happened when BS was two weeks old, described two occasions when she herself

witnessed Appellant place his son on the changing table in manner she disagreed with. When BS was three weeks old, KF looked into the nursery from 

about twenty feet away in the kitchen and observed Appellant place his son

on the changing table with what “looked more like a toss than a drop.” She 

further described the “toss” being accomplished by “more of a, a downward 

force” and later agreed with the answer suggested in trial counsel’s question 

that Appellant had “tossed [him] down” onto the changing table. She estimated that the distance covered over the “toss” was a foot in height. KF testified

that when BS was five weeks old, she observed Appellant and BS in the 

nursery as she was walking out of the laundry room. KF testified that Appellant used the same kind of “downward toss” to place BS on the changing table

as before.

In early October 2013 Appellant spanked HS, who was two years old at 

the time, and left a bruise on his thigh and buttocks. SS took photographs of 

the bruising and sent them via her phone to KF. Additionally, on 25 October 

2013 Texas Child Protective Services (CPS) initiated an investigation into an 

allegation that Appellant has spanked HS for throwing food. CPS also had 

been informed that as a result of the spanking, there were pictures that 

showed bruising on his buttocks and leg. On 29 October 2013, JL, the CPS 

investigator, interviewed Appellant about the allegation. Appellant confirmed 

to JL that he had spanked HS for throwing food from his high chair. Appellant further told JL that he had spanked HS with an open hand and saw 

some redness. JL did not have the pictures of the bruises at the time he interviewed Appellant and thus did not specifically ask Appellant if he had 

caused the injuries depicted in the pictures.

Meanwhile, by the fall of 2013, the results of an investigation of allegations of sexual assault against Appellant had been provided to Appellant’s 

squadron commander. The allegations related to Appellant’s interactions 

with a female Airman when Appellant was assigned at Shaw Air Force Base, 

South Carolina, in 2009. At that time, Appellant held the rank of Senior Airman. On 4 November 2013, charges and specifications5 alleging rape by un-

 

5 These charges and specifications were investigated at the December 2013 Article 32 

hearing and subsequently dismissed. Substantially the same charges and specifica-

(Footnote continues on next page)
United States v. Smith, No. ACM 38943

5

lawful force and forcible sodomy were preferred against Appellant. Appellant’s commander personally informed Appellant by reading verbatim to him

the preferred charges and specifications that same day.

The events that took place in October and early November 2013, the CPS 

child abuse investigation into the spanking of HS and the preferral of sexual 

assault charges against Appellant, were part of the impetus for, and focus of,

a child custody hearing regarding SS’s two daughters in early December. 

Their father, MC, had been provided information from both SS’s brother and 

mother, GF and KF, regarding the CPS investigation into the spanking and 

bruising and MC used that information in support of an effort to change the 

custody arrangement regarding his daughters. Furthermore, by the date of 

the hearing, MC and his attorney were generally aware of the allegation of 

sexual assault against Appellant and that a hearing was scheduled in the 

middle of December related to that allegation. A pretrial investigative hearing under Article 32, UCMJ, 10 U.S.C. § 832, was in fact scheduled for 13 December 2013.

On 2 December 2013, the civil hearing was held at the 345th Civil District 

Court of Travis County, Texas, to address a motion filed by MC wherein MC 

sought to gain primary custody of his daughters. Appellant testified and was 

asked the following question by MC’s attorney: 

Lieutenant, are you presently looking at a hearing here in the 

next several weeks to determine whether you should stand 

charged with a sexual assault? 

Appellant immediately answered: “No, sir,” before SS’s attorney could 

make an objection based on relevance. In response to the objection, MC’s attorney offered that the evidence was relevant “as to whether or not that has 

an impact on the stress there at the house.” The judge overruled the objection 

and admitted the evidence. Appellant was then asked whether he had given a 

deposition in “the case” to which Appellant replied “No, sir. There is no case 

right now, sir.” MC’s attorney then asked: “Is the idea of an allegation of sexual assault simply something that’s been made up out of entire whole cloth? 

There is no basis?” Appellant replied as follows:

That is why they chose not to prosecute at this time, yes, sir. 

There is no evidence or there is no—there is no statement. 

There is no evidence that anything of that has taken place for 

 

tions were preferred anew on 19 June 2014 along with other charges and specifications that were subsequently referred to this court-martial.
United States v. Smith, No. ACM 38943

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the individual who was discharged. This person was discharged 

from the military. I’m one of five members they had filed a 

complaint against. The prosecution did not pick up the case. It 

moves to an Article 32 for a dismissal.

The following colloquy then ensued between MC’s attorney and Appellant:

MC’s Attorney: So in fact, there was an allegation. That was 

my question.

Appellant: No. You did not say “allegation,” sir. You said I was 

charged; and then you used the term “case,” correct?

MC’s Attorney: Has there been an allegation? Was there an allegation of sexual assault?

Appellant: There was an allegation.

MC’s Attorney: Thank you very much.

II. DISCUSSION

A. Legal and Factual Sufficiency 

Appellant challenges the legal and factual sufficiency of the evidence supporting the perjury conviction and the factual sufficiency of the evidence supporting the conviction for assault consummated by a battery upon a child under 16 years of age. We review both legal and factual sufficiency de novo. 

United States v. Beatty, 64 M.J. 456, 459 (C.A.A.F. 2007). The test for legal 

sufficiency of the evidence is “whether, considering the evidence in the light 

most favorable to the prosecution, a reasonable factfinder could have found 

all the essential elements beyond a reasonable doubt.” United States v.

Turner, 25 M.J. 324 (C.M.A. 1987); see also United States v. Humpherys, 57 

M.J. 83, 94 (C.A.A.F. 2002). The term “reasonable doubt” does not mean that 

the evidence must be free from conflict. United States v. Lips, 22 M.J. 679, 

684 (A.F.C.M.R. 1986). “[I]n resolving questions of legal sufficiency, we are 

bound to draw every reasonable inference from the evidence of record in favor 

of the prosecution.” United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001).

The test for factual sufficiency is “whether, after weighing the evidence in 

the record of trial and making allowances for not having personally observed 

the witnesses, [we are] convinced of the [appellant]’s guilt beyond a reasonable doubt.” Turner, 25 M.J. at 325. In conducting this unique appellate role, 

we take “a fresh, impartial look at the evidence,” applying “neither a presumption of innocence nor a presumption of guilt” to “make [our] own independent determination as to whether the evidence constitutes proof of each 

required element beyond a reasonable doubt.” United States v. Washington, 

57 M.J. 394, 399 (C.A.A.F. 2002). As with legal sufficiency, the term “reason-
United States v. Smith, No. ACM 38943

7

able doubt” “does not mean that the evidence must be free of conflict.” United 

States v. Galchick, 52 M.J. 815, 818 (A.F. Ct. Crim. App. 2000).

1. Perjury

To sustain the conviction for perjury as alleged in the specification, the 

Government was required to prove: (1) that Appellant took an oath that he 

would testify truly in a judicial proceeding by a court of competent jurisdiction, to wit: the 345th Civil District Court of Travis County, Texas; (2) that 

the oath was administered to Appellant in a matter in which an oath was required or authorized by law; (3) that the oath was administered by a person 

having authority to do so; (4) that upon the oath, Appellant did, at or near 

Austin, Texas, on or about 2 December 2013, willfully, corruptly, and contrary to such oath, testify in substance that he was not facing a hearing to determine whether he should stand charged with a sexual assault; (5) that the 

testimony was upon a material matter; (6) that the testimony was false; and 

(7) that Appellant did not then believe the testimony to be true.6

In the context of perjury and false swearing, the United States Court of 

Appeals for the Armed Forces has held “that a statement which is technically, literally, or legally true cannot support a conviction, even if misleading or 

confusing.” United States v. Evans, 37 M.J. 468, 471 (C.M.A. 1993). Likewise, 

when dealing with ambiguous statements, “doubts as to the meaning of allegedly false testimony should be resolved in favor of truthfulness.” Id. (internal 

quotation marks and citations omitted). “[L]iterally true but unresponsive 

answers are to be remedied through more precise questioning.” United States 

v. Arondel de Hayes, 22 M.J. 54, 55–56 (C.A.A.F. 1986) (citing Smith v. United States, 169 F.2d 118 (6th Cir.1948); United States v. Abrams, 568 F.2d 411 

(5th Cir. 1978); United States v. Haimowitz, 725 F.2d 1561 (8th Cir. 1984); 

United States v. Purgess, 33 C.M.R. 97 (C.M.A. 1963)).

The question and follow-up questions asked of Appellant were hardly a 

model of precision. As a result, one is left to ponder the meaning of Appellant’s answer of “no.” Appellant was not simply asked whether he had an upcoming hearing concerning a sexual assault allegation. If he had been asked 

such a simple question and flatly denied there was a hearing, we would not 

detain ourselves long in resolving this alleged error in the Government’s favor. The question posed to Appellant, however, was not so simple. Appellant 

was not only asked “whether he was looking at a hearing . . . in the next several weeks,” he was also asked within the same question if the hearing’s purpose was “to determine whether he should stand charged with a sexual as-

 

6 See Manual for Courts-Martial, United States (MCM), pt. IV, ¶ 57(b)(1) (2012).
United States v. Smith, No. ACM 38943

8

sault.” MC’s attorney asked a compound question—answering “yes” would 

have been agreeing not only that there was an upcoming hearing, but that

the Article 32 hearing’s purpose is “to determine” the disposition of an allegation or report of an offense under the UCMJ. Were such a proposition presented to a gathering of military justice practitioners, we would expect a substantial number to disagree outright or inquire as to what meaning to attach 

to the word “determine” and the words “stand charged.”

The attorney’s use of the word “determine” only injected more potential 

for confusion regardless of whether Appellant answered yes or no. The word 

“determine” used in the context of the question asked could have reasonably 

been understood to mean to decide. As Appellant points out, rather than “determine” or decide disposition, the stated purposes of an Article 32, UCMJ, 

pretrial investigation at that time was to conduct an “inquiry as to the truth 

of the matter set forth in the charges, consideration of the form of the charges, and recommendation as to the disposition which should be made in the 

interest of justice and discipline.”7 A disposition decision and recommendation are distinctly different. A statement that an Article 32 hearing’s purpose 

is “to determine” the disposition of a sexual assault offense is at best ambiguous.

Finally, the determination to be made according to the question was 

whether Appellant would “stand charged” with a sexual assault. MC’s attorney did not clarify if by the words “stand charged” he meant to be charged in 

the first place—an initial disposition resulting in a preferral of charges—or 

whether Appellant would continue to “stand charged” by means of a referral 

of previously preferred charges to a court-martial. Of course, if the reference 

was to an initial disposition decision, the hearing would in no way factor into 

that determination or decision.

Given the question asked by MC’s attorney, the substance of Appellant’s

response of “no” was “I am not presently looking at a hearing here in the next 

several weeks to determine whether I should stand charged with a sexual assault.” If that statement is “technically, literally, or legally true,” then it cannot support Appellant’s conviction, “even if misleading or confusing.” If the 

term “determine” were limited to meaning “decide” and the words “stand 

charged” to an initial decision to prefer charges, then unquestionably Appellant’s statement would technically be true and thus could not support a perjury charge. We find Appellant’s response to be an ambiguous answer to an 

 

7 Effective 26 December 2014, Article 32, UCMJ, changed from a pretrial investigation to a preliminary hearing.
United States v. Smith, No. ACM 38943

9

imprecisely worded and poorly constructed question.8 After weighing the evidence in the record of trial and making allowances for not having personally 

observed the witnesses, we are not convinced of Appellant’s guilt beyond a 

reasonable doubt and thus find the evidence factually insufficient. Accordingly, we set aside and dismiss the perjury charge and specification.

2. Assault Consummated by a Battery upon a Child under Sixteen 

Years of Age

To sustain the conviction for assault consummated by a battery upon a 

child under 16 years of age as alleged in the specification, the Government

was required to prove: (1) that Appellant did bodily harm to [HS]; (2) that 

Appellant did so by striking HS on the buttocks and thigh with his hand; (3) 

that the bodily harm was done with unlawful force or violence; and (4) that 

[HS] was then a child under the age of sixteen years.9 At the child custody 

hearing, Appellant was asked whether he had “any serious doubt” that the 

marks on HS’s buttocks were the result of a spanking that he gave. Appellant 

replied, “No, no serious doubt.” The photographs taken by SS demonstrate 

the nature and extent of the bodily harm to HS’s buttock and thigh and Appellant admitted to the CPS investigator that he spanked HS with an open 

hand after HS had thrown his food. Having reviewed the entire record of trial 

and making allowances for not personally observing the witnesses, we are 

convinced of Appellant’s guilt beyond a reasonable doubt.

B. Ambiguous Findings 

Appellant avers that the military judge’s finding with respect to the specification of child endangerment was fatally ambiguous. As indicated above, we 

agree.

When the phrase “on divers occasions” is removed from a specification, 

the effect is “that the accused has been found guilty of misconduct on a single 

occasion and not guilty of the remaining occasions.” United States v. Augspurger, 61 M.J. 189, 190 (C.A.A.F. 2005). “If there is no indication on the 

record which of the alleged incidents forms the basis of the conviction, then 

the findings of guilt are ambiguous and the Court of Criminal Appeals cannot 

perform a factual sufficiency review.” United States v. Wilson, 67 M.J. 423, 

428 (C.A.A.F. 2009) (citing United States v. Walters, 58 M.J. 391, 396–97 

 

8 We note that MC’s attorney likely achieved his objective of ultimately eliciting from 

Appellant that he had been alleged to have committed a sexual assault and did not 

have as a concern a potential perjury prosecution against Appellant.

9 See MCM, 2012, pt. IV, ¶ 54.b(3)(c).
United States v. Smith, No. ACM 38943

10

(C.A.A.F. 2003)). “Where the findings do not disclose the single occasion on 

which the conviction is based, the Court of Criminal Appeals cannot conduct 

a factual sufficiency review or affirm the findings because it cannot determine which occasion . . . the servicemember was acquitted of.” Augspurger, 61 

M.J. at 190. “Double jeopardy principles prohibit a reviewing court from rehearing any incidents for which the accused was found not guilty.” Wilson, 67 

M.J. at 428. “Courts of Criminal Appeals may not perform an independent 

review of the record to determine which of the possible incidents most likely 

formed the basis for the conviction.” Id. However, a Court of Criminal Appeals may review the record to determine if there was only a single possible 

incident that met “all the details of the specification” for which an appellant 

was convicted. Id. at 429.

The military judge found Appellant guilty of the specification except the 

words “on divers occasions,” “the mental health,” and “throwing.” Thus the 

specification that Appellant was found guilty of by the military judge was 

modified to the following by the exceptions:

[B]etween on or about 16 September 2012 and on or about 30 

November 2012, had a duty for the care of [BS], a child under 

the age of 16 years, and did, endanger physical health, safety, 

and welfare of said [BS] by dropping him, and that such conduct constituted culpable negligence, such conduct being to the 

prejudice of good order and discipline in the armed forces and 

of a nature to bring discredit upon the armed forces.

Notably, the military judge did not find Appellant guilty of any substituted or additional words. Nor did he make a clarification on the record as to 

which alleged incident formed the basis of the conviction as is permitted by 

Rule for Courts-Martial (R.C.M.) 922(d).10 The Government asserts that the 

finding of guilt as to the child endangerment charge was not ambiguous because the instance described by SS as a “blup,” “bomp,” and “plop” is the only 

single incident that meets all the details for the specification for which Appellant was convicted. This assertion is rather remarkable given the Government’s characterization dismissing this evidence in its closing argument:

The Additional Charge is child endangerment, sir. We have 

that happening from when the boy is born essentially up until 

 

10 In the context of a judge-alone trial, clarification of ambiguous findings can be accomplished by a clear statement on the record by the military judge as to which alleged incident formed the basis of the conviction. United States v. Trew, 68 M.J. 364 

(C.A.A.F. 2010).
United States v. Smith, No. ACM 38943

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the end of November. That gives you the whole range. And the 

two months where SS either lied about or talked about something that doesn’t really matter much; the dropping of the boy. 

And then you have the actual charged offenses that fall under 

there; three occasions. One where [SS] comes out in an excited 

utterance, in spite of her ability almost preternatural to get up 

here and lie and scheme and misdirect, and tells her mom what 

she saw happen in a fit, in a flurry of excitement, a fear of concern for the safety of her two-week-old son, who flails as he is 

thrown down by the accused. That is the first. We have the second. We have the third as well that [KF] observed herself.

On appeal, the Government has retreated from the incident based upon 

the excited utterance and now in an effort to salvage the finding of guilty, 

embraces the “blup” as the only single possible incident that met “all the details of the specification” for which Appellant was convicted. The Government 

argues that this is the case because this was the only instance where there 

was no evidence of “throwing” or endangerment to “mental health” and this 

matched the excepted language Appellant was found not guilty of. We disagree.

We note that by the time both sides had rested their respective cases, the 

evidence supported four distinct instances wherein Appellant might be found 

to have endangered his child’s physical health, safety, and welfare by culpable negligence. Those instances are as follows:

(1) KF testified that when BS was two weeks old, SS made an excited utterance to her “I can’t believe that MFer dropped my son” and also used 

the word “throw”;

(2) KF testified that when BS was three weeks old, she observed a 

“downward toss” while standing in the kitchen;

(3) KF testified that when BS was five weeks old, she observed a “downward toss” while walking from the laundry room toward the nursery; and

(4) SS testified that when BS was three months old, she observed the 

“blup” which she estimated to be a “drop” of a couple of inches.

The military judge found the manner in which Appellant endangered his 

son was by “dropping him.” For two of the four instances the word “drop” was 

actually used in the testimony to describe what Appellant did. We also note 

that the word “drop” is not a term with a precise legal definition and can generally be used to describe letting or making something fall vertically. KF’s 

description of a “downward toss” is not incompatible with a finding of “dropping.” Having reviewed the record, we find evidence for all four incidents that 

meet “all the details of the specification” for which Appellant was convicted.
United States v. Smith, No. ACM 38943

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We are therefore unable to conclude that there is only one single possible occasion that meets all the details of the specification for which Appellant was 

convicted. As a result, the findings for the child endangerment charge and 

specification are fatally ambiguous and we are unable to perform a factual 

sufficiency review under Article 66, UCMJ.

The Government argues in the alternative that if this court were to hold 

that the findings were ambiguous, instead of dismissing the charge, we 

should remedy the ambiguity by remanding for special findings. However:

Because double jeopardy principles would bar any rehearing on 

incidents of which Appellant was found not guilty, and because 

ambiguous findings preclude distinguishing incidents that resulted in acquittal from the single incident that resulted in a 

conviction, the remedy for a Walters violation is to set aside the 

finding of guilty to the affected specification and dismiss it with 

prejudice.

United States v. Scheurer, 62 M.J. 100, 112 (C.A.A.F. 2005). Accordingly, we 

set aside and dismiss the child endangerment charge and specification.

C. Sentence Reassessment

Having set aside and dismissed the charges and specifications for perjury 

and child endangerment, we now must decide whether we can accurately reassess Appellant’s sentence based solely upon the findings on the affirmed

conviction for assault consummated by a battery upon a child under 16 years 

of age or instead if we must return this case for a rehearing.

This court has “broad discretion” when reassessing sentences. United 

States v. Winckelmann, 73 M.J. 11, 12 (C.A.A.F. 2013). Our superior court 

has repeatedly held that if we “can determine to [our] satisfaction that, absent any error, the sentence adjudged would have been of at least a certain 

severity, then a sentence of that severity or less will be free of the prejudicial 

effects of error.” United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986). In 

determining whether to reassess a sentence or order a rehearing, we consider 

the totality of the circumstances with the following as illustrative factors:

(1) dramatic changes in the penalty landscape and exposure; (2) the forum;

(3) whether the remaining offenses capture the gravamen of the criminal 

conduct; (4) whether significant or aggravating circumstances remain admissible and relevant; and (5) whether the remaining offenses are the type with 

which we as appellate judges have the experience and familiarity to reliably 

determine what sentence would have been imposed at trial. Winckelmann, 73 

M.J. at 15–16.

Examining the entire case and applying the considerations set out in 

Winckelmann, we are unable to determine to our satisfaction that Appellant’s 
United States v. Smith, No. ACM 38943

13

sentence would have been at least as severe as a dismissal or some lesser 

form of punishment without the error. The penalty landscape has dramatically changed as the maximum imposable sentence to confinement has been reduced from 8 years to 2 years. Further, the remaining offense does not capture the gravamen of the criminal conduct. Clearly, the military judge considered the child endangerment conviction in crafting the sentence of a dismissal along with the other “child abuse” conviction as well as the perjury. It 

is notable that with the child endangerment conviction as a matter to consider in sentencing, there was arguably an emerging pattern of child abuse. Trial counsel argued about the “grave danger that [BS] was put in when he was 

dropped by his own father at a few weeks old” and that HS, “for throwing 

food at two years old received a beating worse than probably some of us have 

obtained in our lives.” He also made repeated references to how Appellant 

had failed to protect them. Without the child endangerment conviction, the 

assault and battery for spanking HS could be characterized as a one-time 

event where a parent lost their temper and went beyond what the law permits in terms of corporal punishment. Standing alone, it does not capture an

emergent pattern of abuse, a significant part of the gravamen of the criminal 

conduct regarding Appellant’s treatment of his children.

As for the perjury specification, in his sentencing argument trial counsel

made a direct link between Appellant’s failure to “respect” the oath he made 

at the child custody hearing and its bearing on whether he would respect the 

oath he made as an officer in the Air Force. Trial counsel stated that when he 

thought of Appellant and his crimes “[he saw] dishonor, shame, disgrace, and 

untrustworthiness,” and that “his crimes earned him that dismissal.” As the 

military judge sentenced Appellant to a dismissal and no other form of punishment, once child endangerment and perjury are no longer before the sentencing authority, we hesitate to conclude Appellant’s sentence would have 

been at least as severe as a dismissal or some lesser form of punishment

without the error.

D. Timely Appellate Review

Although not initially raised by Appellant, we review de novo “[w]hether 

an appellant has been denied [his] due process right to a speedy post-trial review . . . and whether [any] constitutional error is harmless beyond a reasonable doubt.” United States v. Allison, 63 M.J. 365, 370 (C.A.A.F. 2006). A presumption of unreasonable delay arises when appellate review is not completed and a decision is not rendered within 18 months of the case being docketed 

before this court. United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006).

The Moreno standards continue to apply as a case remains in the appellate 

process. United States v. Mackie, 72 M.J. 135, 135–36 (C.A.A.F. 2013). When 

a case is not completed within 18 months, such a delay is presumptively un-
United States v. Smith, No. ACM 38943

14

reasonable and triggers an analysis of the four factors elucidated in Barker v. 

Wingo, 407 U.S. 514 (1972), and Moreno. See United States v. Arriaga, 70 

M.J. 51, 55 (C.A.A.F. 2011). Those factors are “(1) the length of the delay; (2) 

the reasons for the delay; (3) whether the appellant made a demand for a 

speedy trial; and (4) prejudice to the appellant.” United States v. Mizgala, 61 

M.J. 122, 129 (C.A.A.F. 2005); see also Barker, 407 U.S. at 530.

This case was originally docketed with the court on 30 December 2015. As 

such, the delay in releasing our decision is facially unreasonable. However, in 

analyzing the Barker factors for the delay leading up to this decision, we find 

no due process violation resulted from the appellate delay. Regarding the 

reasons for the delay, we note Appellant’s brief was not filed until 22 May 

2017, nearly 17 months after the case was docketed with this court. The Government’s answer was filed on 21 June 2017. Appellant’s counsel requested a 

total of eight enlargements of time, all of which were granted. In each instance, Appellant counsel noted that Appellant was not in confinement, there 

were 14 motions at trial, and that the transcript is 2238 pages with 37 prosecution exhibits, 16 defense exhibits, and 88 appellate exhibits. Appellant did 

not make a demand for speedy appellate review. 

Notably, on 10 January 2017, this court ordered the Government to submit a sealed Appellate Exhibit for attachment to the record after a determination it was missing from the court’s copy. On 31 January 2017, the Government notified the court that the missing exhibit was not part of the record 

maintained by either party. On motion of the Government, we remanded the 

case to the convening authority for correction setting 11 April 2017 as the 

deadline for the correction. On 11 April 2017, the Government informed the 

court that the missing exhibit had been prepared but that Appellant’s trial 

defense counsel had requested more time to review the correction. The Government requested the deadline be extended. The new deadline, 28 April 

2017, was met and the record returned to this court.

We find no prejudice to Appellant resulting from the delay in the issuance 

of this opinion. When there is no showing of prejudice under the fourth factor, 

“we will find a due process violation only when, in balancing the other three 

factors, the delay is so egregious that tolerating it would adversely affect the 

public’s perception of the fairness and integrity of the military justice system.” United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006). That is not 

the case here.

We have also considered whether Appellant is due Tardif relief because of 

the violation of the Moreno standards in this case. United States v. Tardif, 57 

M.J. 219, 223–24 (C.A.A.F. 2002). 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 
United States v. Smith, No. ACM 38943

15

M.J. 264 (C.A.A.F. 2016). Those factors include how long the delay exceeded 

appellate review standards, the reasons noted by the Government for the delay, whether the Government acted with bad faith or gross indifference, evidence of institutional neglect, harm to Appellant or the institution, 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.

On the whole, we find the delay, although presumptively unreasonable, to 

be justified upon application of the Gay factors. The length of the delay only 

exceeded the Moreno standard by 14 days. The 16-volume record of trial was 

substantial, exceeding 2200 pages of transcript as noted above. We also find 

no evidence of bad faith or gross negligence on the part of the Government for 

the delay. For these reasons, we conclude no Tardif relief is warranted.

III. CONCLUSION

The findings of guilt to Charge V and its Specification and to the Additional Charge and its Specification are SET ASIDE and DISMISSED WITH 

PREJUDICE. The remaining finding is correct in law and fact, and is AFFIRMED. The sentence is SET ASIDE. A rehearing on sentence is authorized. Article 66(c), UCMJ 10 U.S.C. § 866. 

FOR THE COURT

KURT J. BRUBAKER

Clerk of the Court