UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

No. ACM 39697

________________________

UNITED STATES

Appellee

v.

Soren G. GERE

Technical Sergeant (E-6), U.S. Air Force, Appellant

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Appeal from the United States Air Force Trial Judiciary

Decided 24 November 2020

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Military Judge: L. Martin Powell.

Approved sentence: Dishonorable discharge, confinement for 10 years, 

and reduction to E-1. Sentence adjudged 23 January 2019 by GCM convened at Wright-Patterson Air Force Base, Ohio.

For Appellant: Major M. Dedra Campbell, USAF; Vik Monder, Esquire.

For Appellee: Lieutenant Colonel Brian C. Mason, USAF; Major Jessica 

L. Delaney, USAF; Mary Ellen Payne, Esquire.

Before MINK, KEY, and ANNEXSTAD, Appellate Military Judges.

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

Judge MINK and Judge KEY joined.

________________________

This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 30.4.

________________________

ANNEXSTAD, Judge:

Contrary to his pleas, Appellant was convicted at a general court-martial 

composed of a military judge sitting alone of one specification of attempted sex-
United States v. Gere, No. ACM 39697

2

ual assault of a child, one specification of sexual abuse of a child, and one specification of sexual assault of a child, in violation of Articles 80 and 120b, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 920b.1,2 The military 

judge sentenced Appellant to a dishonorable discharge, confinement for ten

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

sentence as adjudged.

Appellant raises five assignments of error on appeal: (1) whether the military judge erred by denying a defense motion to compel production of a cellular 

phone belonging to the victim, SN; (2) whether the evidence is legally and factually sufficient to support the convictions; (3) whether the military judge erred 

by admitting expert testimony at sentencing regarding the long-term effects of 

child sexual abuse in general; (4) whether Appellant is entitled to new posttrial processing including a new record of trial “where 11 different legal office 

personnel made major changes to the transcript” and the trial counsel completed both the certification of the transcript and the authentication of the record; and (5) whether Appellant is entitled to new post-trial processing because 

the staff judge advocate’s recommendation (SJAR) and attachments to the 

SJAR contained multiple errors and failed to properly advise the convening 

authority. After reviewing the record and considering R.C.M. 1104(a)(2), we 

find Appellant’s fourth assertion does not require further discussion or warrant 

relief. See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987). Finding no 

error materially prejudicial to a substantial right of Appellant, we affirm the 

findings and sentence. 

I. BACKGROUND

In September 2016, Appellant was a recruiter assigned to the 338th Recruiting Squadron at Wright-Patterson Air Force Base (AFB), Ohio. At that 

time, SN was a 13-year-old girl who lived with her mother, JR, near WrightPatterson AFB. SN’s mother and father were separated, and her father lived 

 

1 All references in this opinion to the Uniform Code of Military Justice (UCMJ), Rules 

for Courts-Martial (R.C.M), and Military Rules of Evidence are to the Manual for 

Courts-Martial, United States (2016 ed.).

2 The specification of attempted sexual assault of a child was a lesser included offense 

of Specification 3, that alleged sexual assault of a child of which the military judge 

found Appellant not guilty. The military judge also conditionally dismissed Specification 1, sexual abuse, on the condition that the Specification 2, sexual assault of a child,

and Specification 3, attempted sexual assault of child, were affirmed on appeal. The 

military judge also merged Specifications 2 and 3 at sentencing, resulting in a maximum term of confinement of 30 years. 
United States v. Gere, No. ACM 39697

3

in California. Appellant had been dating JR for about a year and SN would 

normally interact with Appellant multiple times per week.

On the weekend of 10 September 2016, SN and her mother went to Appellant’s house near Beavercreek, Ohio. At his house, Appellant provided SN with 

multiple alcoholic drinks. Over the course of the evening, SN consumed both 

beer and mixed drinks. SN testified that she does not recall exactly how many 

alcoholic drinks she consumed that evening, but knew it was more than two, 

and she felt tipsy and drunk. Throughout the night, SN took videos of herself 

on her cellular phone in an intoxicated state, 38 of which were admitted into 

evidence at trial. At some point, SN recalled that Appellant walked her over to 

his bed and gave her a small pill. Appellant told SN the pill would help her 

sleep. SN understood that Appellant and her mother were going out to a local 

bar. After Appellant and JR left, SN fell asleep in Appellant’s bed. 

The next thing SN recalled was waking up when Appellant and her mother 

returned from the bar. SN testified that she “was drunk and . . . really couldn’t 

get up or really move.” She stated that Appellant laid down next to her in the 

bed and that her mother was laying on the other side of Appellant, not immediately next to her. SN testified that Appellant placed his hand up her shirt 

and under her binder3 before touching “both” of her breasts. She further testified that Appellant pulled her underwear down and “put his fingers inside of 

[her].” As this was happening, Appellant told SN “not to tell anyone.” SN testified that she tried to mumble “stop” under her breath, but the words would 

not come out because she was in “shock.” SN testified that while Appellant 

touched her he was kissing her neck and mouth. SN testified that Appellant 

smelled like alcohol and cigarettes and that she felt “repulsed” while this was 

happening. SN testified that while laying on her side, with her back to Appellant, she felt Appellant’s erect penis against her buttocks. SN then stated that 

she felt his penis around her vagina and that while this was happening Appellant was “breathing” on her and “thrusting” and “jerking” his body. SN testified 

that she felt his penis touching her vagina, but it did not go inside her vagina. 

SN testified that she tried to get up but that Appellant held her down by placing his hand on her stomach region. 

SN was finally able to get away and went to the kitchen near the living 

room. Appellant followed her to the kitchen and slightly shoved her, while asking her what was wrong. SN did not respond, and went to the living room to 

 

3 At trial, SN testified that a “binder” is a piece of clothing used by individuals to “bind” 

their breasts down. SN stated that her binder was made of cotton and had multiple 

hooks on the back to keep it closed. 
United States v. Gere, No. ACM 39697

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sleep on the couch, while Appellant returned to his bedroom. SN testified that 

she could not sleep and spent most of the night crying.

The following morning, Appellant drove SN and her mother home. SN testified that she did not immediately tell her mother what happened because she 

thought her mother “wouldn’t believe [her].” Later that day, SN told her friend, 

EH, that her “mom’s boyfriend raped” her. That same night, SN had a conversation with another friend, JE, and was in tears as she told JE that she had 

been drinking with her mom and her boyfriend, and that her mom’s boyfriend 

came in the room, got on top of her, and raped her. Both of her friends encouraged her to report the incident, but SN refused because she was worried her 

mother would get in trouble for allowing her to drink alcohol. 

The following Monday at school, SN testified that she told several other 

friends about the assault. All of SN’s friends encouraged her to report the assault; however, SN chose not to. After school, one of SN’s friends, JE, told her 

mother, who immediately reported the assault to Child Protective Services. 

Subsequently, a social worker and civilian law enforcement officer were dispatched to SN’s house. JR initially met with police and asked for a lawyer, and 

also asked to speak to SN in private. During their private conversation, JR told 

SN not to tell the police about the alcohol. 

After speaking with police about what had happened, SN agreed to go to 

the hospital, where she underwent a sexual assault forensic examination

(SAFE). As part of the examination, deoxyribonucleic acid (DNA), fingernail 

scrapings, and a head hair sample were collected, and buccal swabs were taken 

from SN. While at the hospital, SN also provided a urine sample. 

At trial, the Government called TA, a forensic scientist from the Ohio Bureau of Criminal Investigation. The court recognized TA as an expert in the 

field of forensic DNA analysis. TA testified that he examined the SAFE kit 

from SN, which included oral and vaginal samples, fingernail scrapings, a head 

hair sample, and skin swabs from the pubic area. TA further testified that “a 

low amount of male DNA” was found on the pubic area samples taken from 

SN, but due to the small amount of DNA present, a DNA profile could not be 

produced.

During trial, the Government also called HA, a toxicologist from the Coroner’s Office Crime Lab in Troy, Ohio. The court recognized HA as an expert in 

the field of toxicology. HA testified that SN’s urine sample showed traces of 

ibuprofen and diphenhydramine and that diphenhydramine is the active ingredient found in over-the-counter sleep aid medication. HA testified that subsequent confirmation tests did not detect diphenhydramine above the cut-off 

level of six nanograms per milliliter in SN’s urine sample.
United States v. Gere, No. ACM 39697

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II. DISCUSSION

A. Production of SN’s Cellular Phone

Appellant alleges that the military judge abused his discretion by not compelling production of SN’s cellular phone. Specifically, Appellant alleges the 

military judge’s findings of fact were not supported by the evidence and that 

incorrect legal principles were applied. We disagree. 

1. Additional Background

On 15 January 2019, Appellant’s trial defense counsel made an oral motion 

to compel the production of SN’s cellular phone for forensic analysis. Appellant 

contends that the cellular phone, which was in SN’s possession, contained evidence that SN either recanted the allegations or admitted to lying about the 

allegations in written communications with JR. The Government opposed the 

motion. The court received evidence and heard argument on the motion on 15 

and 16 January 2019. Specifically, the court received live testimony from SN, 

JR, and a Mr. JR, a senior digital forensic examiner.

SN testified that from November 2016 until the date of the court-martial, 

she lived with her father in California. During that time she communicated 

with her mother, in Ohio, through text messaging on Snapchat and Facebook.

At some point, SN “blocked” her mother on Snapchat. This had the effect of 

temporarily making conversations between the two disappear from view on the 

messaging application. On 15 January 2019, SN was asked by trial counsel to 

“unblock” her mother. This had the effect of making the Snapchat conversations visible again. SN then testified that she went through the conversations 

she had with her mother and began taking screenshots of them. SN testified 

that while she was taking screenshots of the messages she accidently deleted 

one from 6 September 2017. SN stated that the deleted message was one she 

sent to JR that stated something along the lines of “I f’ d up.” The message 

immediately preceding the deleted message was a message from SN which 

said, “Hi mom I’m on my iPad my dad took away my phone.” The message 

immediately following the deleted message is a message from JR to SN that 

asks “[What] did you do? . . . I promise I won’t get mad you can tell me.” SN 

testified that when she sent the deleted message she was talking to JR about 

getting in trouble with her father and was not referring to the allegations or 

the court-martial. 

SN further testified that she had conversations with JR about the courtmartial via Snapchat. SN testified that JR would encourage her “not to go 

through” with the court-martial. SN testified that she knew there were messages missing from the conversations with JR, but she did not remember what 

they said. However, SN testified that she never told JR that she made up the 
United States v. Gere, No. ACM 39697

6

allegations. She further testified that on multiple occasions JR encouraged her 

to change her statement and not go through with the court-martial. 

JR testified that shortly after 11 September 2016 SN was removed from 

her custody and sent to live with her grandmother. JR testified that SN lived 

with her grandmother until November 2016, at which time she moved to California with her father. JR testified that she would communicate with SN via 

Snapchat, Facebook, and telephone calls. JR stated that on 15 January 2019, 

she was asked by trial defense counsel to take screenshots of all of the saved 

Snapchat messages between herself and SN and that while she was taking 

screenshots she received a notice indicating that SN had just “deleted” a message from 6 January 2017. JR stated that she viewed the message before it was 

deleted and it said “Mom, I’m sorry. I f**ked up.” JR agreed with SN that some 

messages were missing from their Snapchat conversations, but she didn’t know 

the content of any of the other messages that might have been missing. 

Contrary to SN’s testimony that she never told JR she had made up the 

allegations, JR testified that SN recanted the allegations or admitted to lying 

about the allegations against Appellant on three occasions. One of those occasions occurred on or about 6 September 2017 as part of the conversation involving the deleted message. The second occasion occurred on or about 27 September 2018, where JR stated that SN verbally told her during a telephone 

conversation that she was lying about the allegation and did not want to go 

through with the prosecution of the case, and, in response, JR sent a Snapchat 

message with the name and telephone number for Appellant’s trial defense 

counsel. JR testified that the third occasion occurred on the telephone, not 

through any text message application. Finally, in response to questions from 

the military judge, JR testified that all of the conversations in which SN admitted to her that she made up the allegations occurred telephonically, voice 

to voice, and that none were sent in message format over Snapchat. 

Mr. JR, an expert in computer forensics, also testified on the motion. Mr. 

JR testified that Snapchat is an application that allows individuals to send text 

messages as well as images and videos. He stated Snapchat has a default setting which deletes multimedia or text messages; however, he indicated the default setting may be modified by the user. Mr. JR also testified that messages 

may be saved within the application by “screenshotting” them, or saved 

through third-party applications, and that deleted Snapchat messages can be 

retrieved in a manner similar to deleted text messages, through extraction of 

the cellular phone. Extraction of the cellular phone involves accessing the database that houses the text messages as well as any attachment folders, copying all the data, then analyzing that data for evidence related to the Snapchat 

messages. Mr. JR stated that the likelihood of recovering deleted messages is 

based on several factors: the amount of time that has passed since the deletion 
United States v. Gere, No. ACM 39697

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occurred, how often the phone was used during this period, and whether or not 

the user saved the chat at the time it was sent. Finally, Mr. JR testified that,

considering the memory limitations of mobile devices, there was not a good 

chance of recovering deleted Snapchat messages more than one to two months 

old from the device of an active user like SN, but the likelihood of recovery 

would increase for newly deleted Snapchat messages.

On 16 January 2019, the military judge denied the motion to compel the 

production of SN’s cellular phone for examination. The military judge found 

that SN’s cellular phone was not in the possession of the Government, and 

therefore, discovery under Rule for Courts-Martial (R.C.M.) 701 was not applicable. Turning to production under R.C.M. 703, the military judge found that 

the defense failed to establish “by a preponderance of the evidence that the 

production of SN’s cellular phone for analysis would lead to any relevant or 

necessary evidence beyond evidence already available to the defense in the 

form of saved messages and the testimony of [JR] and SN.”

In support of his finding, the military judge discussed the testimony of JR,

who specifically stated that all conversations where SN had recanted the allegations against Appellant had occurred on the telephone and not via text messages. The military judge stated in his ruling that taking JR’s testimony at 

face value, she provided “no significant evidence to suggest that there would 

likely be any ‘smoking gun’ type recantation messages contained on SN’s cellular phone.” 

Regarding the ability to obtain deleted messages through extraction of the 

cellular phone, the military judge found that recovery of automatically deleted 

messages was complicated by the passage of time and the amount of use by the 

user of the application. He further found SN to be an active user, having used 

the application over 50,000 times. He concluded there was not a good chance 

of recovering a deleted Snapchat message that was sent by an active user in 

September 2018 and that the further back in time those messages were sent 

the less likely it was that those messages could be recovered through extraction. Additionally, the military judge found that the metadata related to phone 

calls and text messages might be discovered by extraction of the cellular phone, 

but such data would only reveal information such as the time and date of the 

messages, and not the actual substance of the messages.

2. Law

We review a military judge’s ruling on requests for discovery or production 

of evidence for an abuse of discretion. United States v. Jones, 69 M.J. 294, 298 

(C.A.A.F. 2011) (citing United States v. Morris, 52 M.J. 193, 198 (C.A.A.F. 

2008)). An abuse of discretion occurs when the military judge’s findings of fact 

are clearly erroneous or when his ruling is influenced by an erroneous view of 
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the law. United States v. Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008). An abuse 

of discretion involves much more than a difference of opinion. See United States 

v. Travers, 25 M.J. 61, 62 (C.M.A. 1987) (citation omitted). In order to be reversed on appeal, the challenged action must be “arbitrary, fanciful, clearly 

unreasonable,” or “clearly erroneous.” See id. at 62–63 (citation omitted). 

The Due Process Clause of the Fifth Amendment4 guarantees criminal defendants be afforded a meaningful opportunity to present a complete defense. 

United States v. Webb, 66 M.J. 89, 92 (C.A.A.F. 2008) (citations omitted). Each

party to a court-martial must have an equal opportunity to inspect evidence 

and to obtain witnesses and other evidence. United States v. Stellato, 74 M.J. 

473, 483 (C.A.A.F. 2015) (citing R.C.M. 701(e); Article 46, UCMJ, 10 U.S.C. 

§ 846). 

Each party is entitled to the production of evidence which is relevant and 

necessary. R.C.M. 703(f)(1); United States v. Rodriguez, 60 M.J. 239, 246 

(C.A.A.F. 2004) (citation omitted). Evidence is relevant if “it has any tendency 

to make a fact more or less probable than it would be without the evidence” 

and “is of consequence in determining the action.” Mil. R. Evid. 401. “Relevant 

evidence is ‘necessary when it is not cumulative and when it would contribute 

to a party’s presentation of the case in some positive way on at matter in issue.’” Rodriguez, 60 M.J. at 246 (quoting R.C.M. 703(f)(1)).

As a threshold matter, in order to be entitled to production of evidence, the 

defense must first demonstrate that the requested material exists. Id. The defense request for production of evidence must list the items of evidence to be 

produced and include a “description of each item sufficient to show its relevance.” R.C.M. 703(f)(3). The burden of proof for factual issues related to this 

motion is a preponderance of the evidence. R.C.M. 905(c)(1). The burden of persuasion is on the moving party. R.C.M. 905(c)(2); R.C.M. 906(b)(7).

3. Analysis

Appellant alleges that the military judge abused his discretion in two ways. 

First, Appellant asserts the military judge made an erroneous finding of fact

concerning the likelihood of recovering deleted messages from SN’s phone; and 

second, that the military judge applied incorrect legal principles by requiring 

the evidence to be a “smoking gun” of recantation. We disagree and find the 

military judge’s findings of fact were supported by the evidence and that correct legal principles were applied.

 

4 U.S. CONST. amend. V.
United States v. Gere, No. ACM 39697

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Appellant specifically sought extraction of SN’s cell phone to recover deleted Snapchat conversations where SN had purportedly recanted her allegations against Appellant. Appellant contends that the military judge was clearly 

erroneous in his findings of fact regarding the likelihood of recovering deleted 

messages from SN’s cellular phone. We agree with the military judge’s conclusion that Appellant’s motion to compel the cellular phone fails, because the 

Defense never established the sought-after Snapchat messages existed on the 

phone, a prerequisite for the production request. In his written ruling, dated 

16 January 2019, the military judge found that Appellant had failed to establish by a preponderance of the evidence that any relevant evidence existed in 

the deleted text messages. The military judge’s findings are supported by the 

testimony of SN, who denied recanting the allegations and unequivocally 

stated that she never sent Snapchat messages to that effect. Although JR disputed SN’s claims about never recanting, JR agreed that SN never recanted 

her allegations via text message and testified that SN’s recantations occurred 

exclusively during “voice to voice” telephone calls. Trial defense counsel offered 

no specific information that any other relevant evidence not already in the possession of the Defense was on the phone. We agree with the military judge that 

Appellant failed to establish that forensic analysis of the cellular phone in 

question would have revealed additional relevant or helpful evidence related 

to the deleted conversation beyond the evidence that was already available to 

the Defense.

Appellant next contends that the military judge erred when he required the 

evidence to be a “smoking gun,” which is not the standard required by law. 

Appellant’s contention is without merit. While the military judge did refer to a 

“smoking gun” in his ruling, it is evident from the entirety of the ruling that 

this was a colloquialism, and he required nothing more than a showing that 

the evidence was relevant and necessary. Nowhere in the ruling did the military judge discuss the legal standard as “smoking gun.” In fact, in his conclusion the military judge demonstrated that he applied the correct legal principles when he wrote that Appellant failed to establish “by a preponderance of 

the evidence that the production of SN’s cellular phone for analysis would lead

to any relevant or necessary evidence . . . .” We conclude the military judge 

applied the correct legal principles and did not abuse his discretion in denying 

the defense motion to compel the production of SN’s cellular phone for forensic 

extraction.

B. Legal and Factual Sufficiency

Appellant contends that his convictions are both legally and factually insufficient. Appellant’s sole argument focuses on the claim that SN was not a 

sufficiently credible witness. Appellant presents three bases under which he 

argues we should discount SN’s testimony: first, that SN’s testimony regarding 
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the accidental deletion of the Snapchat message was evidence that she lied and 

made her testimony unreliable; second, that her multiple inconsistent statements demonstrate a lack of memory and cast doubt on her testimony; and 

third, that SN had a motive to lie which creates reasonable doubt. We disagree.

1. Law

A Court of Criminal Appeals may affirm only such findings of guilty “as it 

finds correct in law and fact and determines, on the basis of the entire record, 

should be approved.” Article 66(c), UCMJ, 10 U.S.C. § 866(c). “Article 66(c) requires the Courts of Criminal Appeals to conduct a de novo review of legal and 

factual sufficiency of the case.” United States v. Washington, 57 M.J. 394, 399 

(C.A.A.F. 2002) (emphasis and citation omitted). 

“The test for legal sufficiency is whether, after viewing the evidence in the 

light most favorable to the prosecution, any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt.” United 

States v. Robinson, 77 M.J. 294, 297–98 (C.A.A.F. 2018) (quoting United States 

v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017)). “The term reasonable doubt, however, does not mean that the evidence must be free from conflict.” United States 

v. Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (citing United States v. 

Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986)), aff’d, 77 M.J. 289 (C.A.A.F. 2018). 

“[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) (citations omitted).

As a result, “[t]he standard for legal sufficiency involves a very low threshold 

to sustain a conviction.” United States v. King, 78 M.J. 218, 221 (C.A.A.F. 2019) 

(alteration in original) (citation omitted), cert. denied, __ U.S. __, 139 S. Ct. 

1641 (2019). The test for legal sufficiency “gives full play to the responsibility 

of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inference from basic facts to ultimate facts.” 

Unites States v. Oliver, 70 M.J. 64, 68 (C.A.A.F. 2011) (citation omitted).

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,” this court is “convinced of the [appellant]’s guilt beyond a reasonable doubt.” United States v. Reed, 54 M.J. 37, 41 (C.A.A.F. 2000) (quoting 

United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987)). “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.’” Wheeler, 76 M.J. at 568 

(alteration in original) (quoting Washington, 57 M.J. at 399). The term “reasonable doubt” does not mean evidence free from conflict. Lips, 22 M.J. at 
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684 (citation omitted). This court’s review of the factual sufficiency of evidence for findings is limited to the evidence admitted at trial. Article 66(c), 

UCMJ; United States v. Beatty, 64 M.J. 456, 458 (C.A.A.F. 2007) (citations 

omitted).

Appellant was convicted of sexual abuse of a child in violation of Article 

120b(c), UCMJ, 10 U.S.C. § 920b(c), which required the Government to prove 

two elements beyond a reasonable doubt: (1) Appellant committed a sexual act 

upon SN by touching her breast; and (2) Appellant did so with the intent to 

gratify his sexual desire. See Manual for Courts-Martial, United States (2016 

ed.) (MCM), pt. IV, ¶ 45b.b.(4)(a). For this specification, the Government had 

to additionally prove SN was under the age of 16 years. See MCM, pt. IV, 

¶ 45b.a.(h)(4).

Appellant was also convicted of sexual assault of a child in violation of Article 120b(b), UCMJ, 10 U.S.C. § 920b(b), which required the Government to 

prove three elements beyond a reasonable doubt: (1) Appellant committed a 

sexual act upon SN by causing penetration, however slight, of her vulva with 

his fingers; (2) at the time of the sexual act SN had attained the age of 12 years, 

but not 16 years; and (3) Appellant did so with the intent to gratify his sexual 

desire. See MCM, pt. IV, ¶ 45b.b.(3)(b).

Appellant was also convicted of attempted sexual assault of a child in violation of Article 80, UCMJ, 10 U.S.C. § 880, which required the Government to 

prove four elements beyond a reasonable doubt: (1) Appellant did a certain 

overt act; (2) the act was done with the specific intent to commit sexual assault 

of a child by causing penetration, however slight, of SN’s vulva with his penis

while she had attained the age of 12 years but was under the age of 16 years; 

(3) the act amounted to more than mere preparation; and (4) the act apparently 

tended to effect commission of sexual assault of a child. See MCM, pt. IV,

¶ 4.f.(b).

2. Analysis

Appellant’s first contention is that SN lied to the military judge when she 

testified that she “accidently” deleted the “f**ked up” Snapchat message while 

trying to screenshot the messages she exchanged with JR. Specifically, Appellant alleges that the message was deleted at some point on 15 January 2019

before SN started to take screenshots and that SN was untruthful concerning 

how or in what order the message was deleted. Appellant contends that this 

“lie” demonstrates that SN intentionally tried to erase evidence showing that 

she recanted her allegations to JR, thus making her testimony unreliable.

We find Appellant’s argument unpersuasive. While it may be unclear as to 

the exact time the message was deleted on 15 January 2019, there is no reason 

to believe that the deletion was anything other than an accident. There is also 
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no reason to believe that SN deleted the message in an effort to mislead or hide 

evidence. Both SN and JR agreed, while testifying in court, to the content of 

the deleted message, so there would be no obvious reason for SN to intentionally delete the message if she was going to freely admit what it said.5 This 

directly cuts against Appellant’s argument. 

Moreover, there is no evidence that any text messages in which SN recanted the allegations ever existed. To the contrary, JR testified that all statements where SN purportedly recanted her allegations against Appellant were 

made over the telephone and not by text message. Finally, SN testified that 

the deleted message referred to an incident where she got in trouble with her 

father, which is consistent with the text messages both immediately before and 

after the deleted text. Even if SN was untruthful about how the deletion occurred, it is a minor inconsistency, in light of SN’s consistent statements and 

corroborating evidence, we are not persuaded that SN’s testimony was unreliable.

Appellant next highlights multiple inconsistent statements made by SN to 

her friends, family, and others involved. Appellant argues that these inconsistencies demonstrate a lack of memory and cast doubt on her testimony. While 

we find it unnecessary to specifically cover every possible inconsistent statement in detail, we note that the majority of these statements were born from 

statements made to other 13-year-olds, two years before they testified at trial.

Appellant argues that SN generally described a violent rape to her friends, in 

which Appellant held her down, and was on top of her, and that these prior 

descriptions were inconsistent with her testimony at trial. Additionally, Appellant contends SN gave different statements regarding her use of alcohol to various witnesses including law enforcement, Child Protective Services, and the 

sexual assault nurse examiner. 

While witness testimony at trial contained some inconsistencies, this is to 

be expected as a result of the passage of time between the incident in September 2016 and the trial in January 2019. It is also expected considering the age 

of many of the witnesses. We also note that there are simple misunderstandings that result in inconsistencies among many witnesses as a result of the 

witnesses memory and perceptions of the events. These inconsistencies do not 

necessarily make witness testimony less credible. We have considered the discrepancies noted by Appellant, along with the motives advanced by Appellant. 

Testimony “need not be completely consistent to still be sufficiently reliable to 

 

5 We also note that trial defense counsel, who also viewed the deleted message before 

it was deleted, proffered to the court during the motion hearing that the content of the 

message was the same as described by SN and JR.
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sustain a conviction, and we do not confine our analysis to merely the testimony of a single witness in performing our factual sufficiency review under 

Article 66, UCMJ.” United States v. McFadden, No. ACM 38597, 2015 CCA 

LEXIS520, at *11 (A.F. Ct. Crim. App. 18 Nov. 2015) (unpub. op.); see also 

United States v. McElhaney, 50 M.J. 819, 832 (A.F. Ct. Crim. App. 1999)(concluding evidence factually sufficient, in part because appellant’s wife corroborated his romantic relationship with the victim notwithstanding the appellant’s claim that the victim’s testimony was implausible and inconsistent). Additionally, witness testimony that is inconsistent does not necessarily suggest 

that SN herself was inconsistent. In fact, the documentary and video evidence 

that SN took of herself earlier in the night of the assault generally showed that 

SN’s testimony was consistent with her initial reports. 

Finally, Appellant contends that SN had a motive to lie and made up the 

allegations so that she could permanently move in with her father. Appellant 

contends that SN and her mother argued frequently and that SN felt her father 

was generally more supportive. There is no reason to believe SN had a motive

to lie. To the contrary, the evidence presented at trial demonstrates that SN 

and JR continued to communicate, from the incident until trial and that they 

had frequent conversations on the phone and via text message. Additionally, 

the evidence showed that SN did not inform authorities about her use of alcohol 

in order to protect her mother, which cuts directly against this contention.

We find that SN’s testimony was sufficient to establish proof of each element of each offense beyond a reasonable doubt. SN testified that Appellant 

digitally penetrated her vagina with his fingers, and that his hand touched her 

breasts under her binder. She further testified that Appellant’s penis was hard 

against her back. Unlike her unequivocal testimony about Appellant touching 

her breasts and digitally penetrating her, SN was somewhat unclear about 

whether actual penetration of her vagina by his penis occurred. However, she 

did testify that she felt it touch her vagina, which supports the military judge’s 

verdict in which he found Appellant not guilty of the ultimate offense but guilty 

of the lesser included offense of attempt.

SN’s testimony was corroborated by her immediate outcry statements to 

her friends and her consistent recitation of the events to Child Protective Services personnel, the sexual assault nurse examiner, and law enforcement interviewers. Furthermore, while not conclusive, the results of the initial toxicology test supported her statements that she was given a small pill, on the night 

of the assault. Similarly, the DNA report demonstrated some male DNA present on her pubic area, which a rational factfinder could conclude corroborates

her statements. The videos of SN on the night of the assault also corroborated 

her statement that Appellant had given her alcohol and that she was intoxicated.
United States v. Gere, No. ACM 39697

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Finally, in assessing SN’s credibility, we note the testimony regarding SN’s 

consistent demeanor throughout these multiple reports. SN was described by

her friend EH as “withdrawn.” Another friend, JE, stated that SN was “on the 

edge of tears.” SN’s friends at school described her as being “sad.” Law enforcement and the sexual assault nurse examiner noted that she had been crying 

and became tearful while discussing the assault. Such consistency supports 

SN’s credibility and undermines the suggestion she fabricated her allegation 

of the assault.

In assessing legal sufficiency, we consider the evidence produced at trial in 

the light most favorable to the Government. In doing so, we conclude a rational

factfinder could have found beyond a reasonable doubt all the elements to support Appellant’s convictions for sexual assault of a child, sexual abuse of a 

child, and attempted sexual assault of a child. Furthermore, in assessing factual sufficiency, after weighing all the evidence in the record of trial and having 

made allowances for not having personally observed the witnesses, we are convinced of Appellant’s guilt beyond a reasonable doubt. Therefore, we find Appellant’s convictions both legally and factually sufficient.

C. Expert Testimony Regarding the Effects of Child Sexual Abuse 

1. Additional Background

In sentencing, the Government called Dr. NS, who had extensive experience diagnosing and treating child victims of sexual assault. The military judge 

recognized Dr. NS as an expert in the field of forensic psychology with a specialty in child sexual abuse. Appellant did not object to the military judge recognizing Dr. NS as an expert in that capacity and did not object at any point 

during her testimony.

Dr. NS testified in general regarding the long- and short-term impacts of 

sexual abuse on children. Dr. NS further testified that there is no way to predict how a particular victim is going to move forward after being sexually 

abused. Appellant now contends that Dr. NS’s testimony was not directly related to Appellant’s offenses, and that by failing to connect common long-term 

effects of child sexual abuse to the present or prospective impacts on SN, her 

testimony was irrelevant. We disagree. 

2. Law

We review a military judge’s admission of evidence for an abuse of discretion. United States v. Houser, 36 M.J. 392, 397 (C.M.A. 1993). Where there is 

no objection at trial, the admission of expert testimony is reviewed for plain 

error. United States v. Green, 55 M.J. 76, 81 (C.A.A.F. 2001) (citations omitted). 

In reviewing for plain error, the burden is on Appellant to show: (1) there was 
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an error; (2) the error was plain and obvious; and (3) the error materially prejudiced a substantial right. United States v. Girouard, 70 M.J. 5, 11 (C.A.A.F. 

2011) (footnote and citation omitted).

Military courts-martial have also regularly permitted qualified experts to 

provide testimony that child victims of sexual abuse are “at a higher risk” of 

suffering long-term effects of the abuse. United States v. Hammer, 60 M.J. 810, 

829 (A.F. Ct. Crim. App. 2004) (citations omitted); see also United States v. 

Stark, 30 M.J. 328, 329–30 (C.M.A. 1990); United States v. Hammond, 17 M.J. 

218, 219 (C.M.A. 1984); United States v. Marchand, 56 M.J. 630, 633 (C.G. Ct. 

Crim. App. 2001).

R.C.M. 1001(b)(4) permits evidence in aggravation “directly relating to or 

resulting from the offenses of which the accused has been found guilty.” Expert 

testimony is permissible if the expert’s “specialized knowledge will assist the 

trier of fact to understand the evidence or determine a fact in issue.” Mil. R. 

Evid. 702.

3. Analysis

It is well-settled law that this type of evidence is permissible during sentencing. Dr. NS’s testimony was directly related to the effects of sexual abuse 

on children, and she discussed the psychological and emotional components 

when the assault was committed by someone the victim knew as opposed to a 

stranger. Additionally, Dr. NS testified regarding the impact that sexual assault has on a child’s ability to have relationships and also how it affects the 

victim’s self-esteem. In this case, the crimes against SN were committed by 

someone she knew, and the evidence at trial clearly established that the crimes 

impacted SN’s relationship with her mother and others. Furthermore, Dr. NS’s 

testimony concerning the inability to predict what long-term effects, if any, a 

child victim of sexual assault might experience was appropriately cabined. We 

find a sufficient nexus between this evidence and the evidence of Appellant’s 

crimes, and find the military judge did not err in allowing this testimony at 

sentencing.

D. Post-Trial Processing 

1. Additional Background

The SJAR, dated 8 May 2019, incorrectly listed the maximum term of confinement as 70 years. The correct maximum term of confinement was 30 years. 

The Personal Data Sheet (PDS) that was attached to the SJAR also contained three errors. First, it listed the wrong basic pay. Second, it failed to list 

Appellant’s prior service in the United States Marine Corps (USMC). Third, it 

omitted one device on Appellant’s Air Force Good Conduct Medal (AFGCM).
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While it is apparent that this information was corrected during trial and admitted by the Government without objection, it is also apparent that a different 

version of Appellant’s PDS with the errors noted above was attached to the 

SJAR.

On 18 May 2019, Appellant submitted his clemency matters to the convening authority. In his matters, Appellant’s counsel stated that the evidence presented at trial was insufficient to support any finding of guilt against Appellant. Additionally, Appellant’s counsel complained about the manner in which 

the transcript and the record of trial were completed. Appellant did not object 

to any of the errors in the SJAR, and the errors were neither corrected nor 

mentioned in the addendum to the SJAR signed on 20 May 2019.

The addendum to the SJAR stated “[t]he defense alleges one legal error: 

The defense counsel argues that she was not given a reasonable opportunity to 

review the transcript or review the audio recordings from trial. I considered 

carefully the allegation of error, and find it to be without merit.” The addendum to the SJAR further stated, “My earlier recommendation remains unchanged. I recommend you approve the findings as adjudged. I recommend that 

you approve the findings and sentence as adjudged.” The addendum to the 

SJAR did not state or address Appellant’s challenge to the legal and factual 

sufficiency to the offenses. However, the staff judge advocate did advise the 

convening authority in the SJAR that he was “satisfied that the evidence upon 

which the conviction is based is legally sufficient.”

2. Law

Proper completion of post-trial processing is a question of law this court 

reviews de novo. United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000); United 

States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct. Crim. App. 2004) (citation omitted).

The SJAR “plays a vital role in providing the convening authority with complete and accurate advice in the exercise of command discretion.” United States 

v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005) (citation omitted). As our superior 

court has noted, Appellant’s greatest chance for post-trial clemency comes from 

the convening authority. See United States v. Wheelus, 49 M.J. 283, 287 

(C.A.A.F. 1998) (citations omitted). “The better the convening authority is informed the more fairly and justly he will exercise his discretion.” United States 

v. Boatner, 43 C.M.R. 216, 218 (C.M.A. 1971) (citation omitted). R.C.M. 1106(d) 

requires the SJAR to comment on any allegation of legal error raised in clemency, and must state, at a minimum, a statement of agreement or disagreement with the matters raised by the accused. R.C.M. 1106(d)(4)). “The role of 

the convening authority with respect to defense claims of legal error is less 
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pivotal to an accused’s ultimate interests [than the convening authority’s role 

in clemency].” United States v. Hamilton, 47 M.J. 32, 35 (C.A.A.F. 1997).

Before taking action on a sentence, the convening authority must consider 

the SJAR. R.C.M. 1107(b)(3)(A)(ii). The SJAR in an Air Force case should contain a copy of the PDS admitted at trial. Air Force Instruction (AFI) 51-201, 

Administration of Military Justice, ¶ A11.15 (18 Jan. 2019).6 An error in the 

SJAR “does not result in an automatic return by the appellate court of the case 

to the convening authority.” United States v. Green, 44 M.J. 93, 95 (C.A.A.F. 

1996). “Instead, an appellate court may determine if the accused has been prejudiced by testing whether the alleged error . . . would have led to a favorable 

recommendation by the SJA or corrective action by the convening authority.” 

Id. (citations omitted).

Failure to timely comment on incorrect matters in the SJAR, or attached 

to the SJAR, waives any later claim of error absent plain error. Scalo, 60 M.J.

at 436 (citations omitted). To prevail on a plain error analysis, Appellant has 

the burden of demonstrating: (1) there was an error; (2) it was plain or obvious; 

and (3) the error materially prejudiced a substantial right. See id. (citations 

omitted). In the context of post-trial processing, Appellant must make at least 

some “colorable showing of possible prejudice” demonstrating how the alleged 

error potentially affected the opportunity for clemency. Id. at 437 (citation 

omitted). The low threshold is designed to prevent undue speculation as to how 

an error may have affected “the convening authority’s exercise of such broad 

discretion.” Id. (citation omitted).

3. Analysis

Appellant asserts that he is entitled to new post-trial processing because 

the addendum to the SJAR failed to address Appellant’s claim of legal error 

regarding the legal and factual sufficiency of the offenses of which Appellant 

was convicted, and because the SJAR incorrectly listed the maximum term of 

confinement. Appellant also claims he is entitled to relief because the PDS that 

was attached to the SJAR contained multiple errors. We are not persuaded 

that Appellant is entitled to relief.

As to Appellant’s claim that the addendum to the SJAR failed to address 

Appellant’s claims that the evidence was legally and factually insufficient, we

find this to be plain and obvious error, but do not find prejudice. “The failure 

to address a defense claim of legal error in an addendum to an SJAR can be 

remedied through appellate litigation of the claimed error.” Matos, unpub. op.

at *13. Appellant raised this same alleged error in his appeal to this court, and 

 

6 This is the version of AFI 51-201 in effect on the date the SJAR indicates it was 

prepared—8 May 2019.
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we have resolved it adversely to Appellant. As discussed above, there was no 

merit to Appellant’s claim of legal error relative to the legal and factual sufficiency of the evidence, and therefore Appellant cannot make a showing of possible prejudice. Furthermore, the convening authority had no authority to disapprove a finding of guilty even if the convening authority had been convinced 

there was error. Article 60, UCMJ, 10 U.S.C. § 860.

As to Appellant’s claim that the wrong maximum term of confinement was 

listed in the SJAR, we find this too was plain and obvious error. However, Appellant has failed to demonstrate a colorable showing of possible prejudice. Under Article 60, UCMJ, the convening authority, in this case, did not have the 

ability to commute or set aside the sentence to confinement or the punitive 

discharge. Appellant in this case was convicted and sentenced by a military 

judge and the sentence adjudged was one-third of the maximum punishment 

available with respect to Appellant’s sentence to confinement. Given the limited options available to the convening authority, Appellant has failed to 

demonstrate that if the convening authority was advised of a lesser term of 

maximum confinement, the convening authority would have taken some action 

favorable to Appellant. Therefore, we find Appellant has failed to demonstrate 

possible prejudice.

While we also find the errors or omissions in the PDS that was attached to 

the SJAR to be plain and obvious errors, Appellant has not attempted to show, 

nor do we find, that he would have received either a favorable recommendation 

by the staff judge advocate or favorable action by the convening authority without the error. Additionally, the convening authority was provided with significant data concerning Appellant’s meritorious military service, including all of 

his enlisted performance reports. Moreover, Appellant included in the clemency submission to the convening authority photos depicting his service in the 

USMC, a submission which the convening authority affirmed he reviewed before taking action. Appellant cannot claim prejudice where the evidence was 

before the convening authority. See United States v. Lucero, No. ACM 38386, 

2014 CCA LEXIS 743 (A.F. Ct. Crim. App. 1 Oct. 2014) (unpub. op.) (finding 

no prejudice where there was nothing preventing the appellant from raising 

matters to the convening authority). Appellant, in this case, was convicted of 

sexually assaulting a 13-year-old girl, and we find it inconceivable that the 

convening authority would have granted relief had the PDS attached to the 

SJAR shown Appellant’s correct pay amount, his prior service as a Marine, or 

that he had an additional device on his AFGCM. Therefore, we conclude that 

Appellant has not met the threshold of establishing a colorable showing of possible prejudice, and is not entitled to relief.
United States v. Gere, No. ACM 39697

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III. CONCLUSION

The approved findings and sentence are correct in law and fact, and no error materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and sentence are AFFIRMED.7

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court

 

7 Although not raised by the parties, we note two errors in the court-martial order 

(CMO). First, the charged article is incorrectly identified as Article “120” rather than 

“120b.” Second, the third specification is incorrectly identified as “specification” rather 

than “Specification 3.” We direct the publication of a corrected CMO to remedy these

errors.