## U NITED 

## S TATES 

## A IR 

## F ORCE 

## C OURT OF 

## C RIMINAL 

## A PPEALS

_______ _______ __________

No. ACM 39005

_______ _______ __________

UNITED STATES Appellee

v.

L eonardo E. AGUIRRE OBREGON Staff Sergeant (E

- 5 ) , U.S. Air Force, Appellant

_______ _______ __________ Appeal from the United Stat es Air Force Trial Judiciary

Decided 6 Sep tember 2017

_______ _______ __________ Military Judge: Shelly W. Schools

. Approved sentence: Dishonorab le discharge, confinement for 2 4 month s, forfeiture of all pay and allowanc es, and reduction to E

- 1. Sentence adjudged 8 December 2015 by GCM c onvened at Joint Base San Antonio

Lackland, Texas

. For Appellant: Captain Allen S. Abrams, USAF

. For Appellee: Captain Sean J. Sullivan, USAF; Gerald R. Bruce , Esquire.

Before MAYBERRY, JOHNSON, and KIEFER

, Appellate Military Judges

. Judge KIEFER delivered the opinion of the c ourt, in which Senior Judges MAYBERRY and JOHNSON joined

.

_______ _______ __________

This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Pr actice and Procedure 18.4.

_______ _______ __________
KIEFER, Judge:

A military judge sitting as a general court

- martial convicted Appellant, consistent with his pleas and a pretrial agreement (PTA), of four specifications ofUnited States v. Aguirre Obregon , No. ACM 39005

2 assault consummated by battery of children under 16 years of age, in violation of Article 128, Unif orm Code of Military Justice (UCMJ), 10 U.S.C. § 9 28. The

court

- martial sentenced Appellant to a dishonorable discharge, confinement for 24 months, forfeiture of all pay and allowances, and a reduction to E

- 1. The convening authority approved the dishonora ble discharge, confinement for 24 months, and a reduction to E

- 3. The convening authority also deferred the adjudged and mandatory forfeitures until action and waived the mandatory forfeitures for six months after action for the benefit of Appellant’s depe ndent children, pursuant to Articles 57 and 58b, UCMJ, 10 U.S.C. §§ 8 57, 8 58b.

Appellant asserts four assignments of error: (1) Whether the military judgeabused her discretion when she permitted trial counsel to present rebuttal evidence based on facts th at were not presented by the D efense ; (2) w hether the military judge , sitting alone, committed prejudicial error by deciding , over D efense objection, to allow sentencing argument prohibited by United States v. Frey , 73 M.J. 245 (C.A.A.F. 2014) ; (3) w hether the staff judge advocate ’s recommendation (SJAR) contained plain and prejudicial error by incorrectly stating the results of the court

- martial proceedings ; and (4) w hether the transcript is substantially non

- verbatim

. 1 We find no prejudicial error and affirm.

I. B ACKGROUND

Th is case centers on allegations that Appellant physical ly abused young children under his care. In 2008, Appellant lived with his girlfriend JM who had two children. On a trip while visiting friends, Appellant found JM’s 19

- month

- o ld daughter and three

- year

- old son playing with a hot glue gun. In response, Appellant placed the tip of the hot glue gun on each child’s hand, causing blistering and scarring. 2 At trial, Appellant admitted that his actions caused extreme pain to the child ren and was excessive and unnecessary because he could have simply instructed the children to stop playing with the hot glue gun.

Appellant also has a biological son with EE. In June 2009, p ursuant to a custody arrangement, Appellant h ad visitation with hi s son every other weekend. On e day while visiting Appe llant, his then

- two

- year

- old son threw a toy

. Later that same day, the child threw food. On both occasions, App ellant responded by striking his son on the shoulder, hi ps, and buttocks with his hand.
Whe n the c hild returned to his mother, she noticed that he did not want to sit

1 This issue is raised pursuant to U nited States v. Grostefon , 12 M.J. 431 (C.M.A. 1982).

2 Appellant was only charged with burning the 19

- month

- old girl. As part of the PTA, he agreed not to object to the introduction of evidence concerning the burning of the
three

- year

- old boy.United States v. Aguirre Obregon , No. ACM 39005

3 and later observed blood in his diaper. When EE confronted Appellant, he
claimed the injuries were from a bicycle accident

. EE took the child to the hospital where he was admitted as a Level II trauma patient and remained in the hospital for three days. The medical staff
informed EE that the child’ s injuries were not consistent with a bicycle accident. Based on an investigation into this incident, Appellant’s custody rights

were suspended.

Du r in g t h e providence inquiry, Appellant admitted that the injuries h i s s o n sustained were part of App e l lant’s effort to discipli ne him, but the amount of
force used was excessive and inappropriate for the cir c ums t a nces.
By 2014, Appellant’s vi sitation rights had been restored. I n December 2014, in an attempt to discipline his then

- seven

- ye ar

- old son, Appellant forced the boy to hold book s in each hand with outstretched arm s

. When his son could no longer hold the books and started to cr y, Appell ant pinched his arms leaving significant bruising. When the child was still unable to hold the books, Appellant referred to a movie they had recently watched and told his son he would hold a lighter under his arms as further motivation to hold the books

. 3 Later that weekend, Appellant’s son was running in the house when Appellant
struck him in the ches t with a partially closed fist.

A few days later, EE noticed bruising on her son’s arms and reported it to child protective s ervices (CPS). CPS took photographs of the injuries and coordinated with law enforcement to cond uct a child forensic interview. At trial, Appellant admitted the force he used on each occasion with his son was excessive and unnecessary.

Specification 1 addressed Appellan t striking his son in the chest with a partially closed fist. Specificati on 2 dealt with Appellant pinching his son’ s arms, and Specification 4 covered Appellant striking his son’s shoulder, hips,
and buttocks. Specification 5 addressed Appellant burning t he 19

- month

- old girl’s hand with a hot glue gun. At trial, Appellant pleaded guilty to S pe ci fic ations 1 and 2 as charged

, Specifica t ion 4 by except ing the words “and a belt

, ” and Specification 5 by e xcepti ng the word “ arm ” and substituti ng the word

“ hand ” to de scribe the area burned

.

3 Appellant claimed this was a joke and that his s on incorrectly told authorities Appellant actually held a lighter to his arm. Specification 3 alleged that Appellant burned his son’s arms with a cigarette lighter. As part of the PTA, the Government withdrew
and dismissed S pecification 3

.United States v. Aguirre Obregon , No. ACM 39005

4 II. D ISCUSSION

A. Sentencing Evidence

Appellant argues that it was error for the military judge to admit rebuttalevidence from EE in sentencing regarding the fact that Appellant did not regularly exercise his cu stody rights, at times his son did not want t o visit Appellant, and the boy was often quiet and reserved after visits with his father.

We review a military judge ’ s decision to admit sentencing evidence for an
abuse of discretion. United States v. Eslinger

, 70 M.J. 193, 197 (C.A.A.F. 201 1 ).

Rule for Court s

- Martial (R.C.M.) 1001(c)(2)(C) authorizes the G overnment to rebut statements of fact in an unsworn statement. The “ scope of rebuttal is defined by evidence introduced by the other party .” United States v. Saferite

, 59 M.J. 270, 274 (C.A.A.F. 2004 ) (quoting United States v. Banks , 36 M.J. 150, 166 (C.M.A. 1992) ). “[T] he function of rebuttal evidence is to explain, repel, counteract or disprove the evidence in troduced by the opposing party.” Banks

, 36 M.J. at 166 (quoting United States v. Hallum , 31 M.J. 254, 255 (C

. M

. A

. 1990) ). “[W]here a party opens the door, principles of fairness warrant the opportunity for the opposing party to respond, provided the response is fair and is predicated on a proper testimonial foundation .” Eslinger , 70 M.J. at 198.

Sentencing evidence “ is subject to the balancing test of Mil. R. Evid. 403. ”
United States v. Manns , 54 M.J. 164, 166 (C.A.A.F. 2000). “ When a military judge conducts a proper balancing test under Mil. R. Evid. 403, the ruling will
not be overturned unless there is a ‘ clear abuse of discretion. ’” Id . (quoting United States v. Ruppel , 49 M.J. 247, 250 ( C.A.A.F. 1998) ) . However, we afford less deference if a military judge fails to articulate their balancing analysis, and no deference if they fail to conduct a balancing test. Id

. Here, t h e military judge permitted the G ove rnment to present evide n ce that Appellant did no t consistently exer cise his custody rights, and visits with
his son were n o t always positive expe r iences for the child. The G overnment offered this evidence in rebuttal to Appellant’s unsworn statement which
stated in part:
Although part of the reason I a m being sentenced is for hurting [my son], I still love him and I want to be able to see h im, watch him grow, go to sport ing events, school events, and show him that I love him. I know that I have really messed up, but I will not give up on the chance of h aving a healthy and long relationship with my children.

Appellant also offered several photos of his smiling son and him , thereby giving the impression of a positive relationship between the t wo, and Appellant discussed how hard he fought to obtain visita tions with his son.United States v. Aguirre Obregon , No. ACM 39005

5 T he child’s mother EE testified in rebuttal that Appellant only requested
visitatio n every other month

, far less than authorized, and ex cept for two days
before the trial in December 2015 , Appellant had not requested any visitation
si nce Sept ember 2015. She also testified that her son would often as k if he had to go to the visita tion sessions with his father, and after the visits

, the child

wou ld be unusually quiet. The mil ita r y judge ruled that this evidence was proper rebuttal to Appellant ’ s unsworn statement s and the cl a i m s of the positive expe r iences he and his son had together.

The military judge did not conduct a Mil. R. Evid. 403 balancing test. Thus,

we afford no deference to her ruling admitting this rebuttal evidence. Consi dering this issue de novo , we find that Appellant, through his unsw orn statements and other evidence, raised the cir cumstances of his relationship with his son and opened the door to his visitations . EE’s rebuttal te stimony was an appro priate means of expl aining, counteracting, or di sproving Appellant’s evidence and provided additional context to the relationship, and thus had probative value. We further find the potential for unfair prejudice was low, given the
evidence at issue and the fact that this was a trial before military judge alone.
We are satisfied that “ the military judge was able to sort through the evidence, weigh it, and give it appropriate weight.” Manns , 54 M.J. at 167.

Accordingly, t he admission of this rebuttal ev idence was not an abuse of
discretion , and we find no error

.
B. Sentencing Argument

In his second assignment of error, Appellant raises six issues with regard

to trial counsel ’s sentencing argument : (1) Appellant should not be punished more harshly because he was a medical professional; (2) trial counsel stared at Appellant throughout his argument; (3 ) trial counsel argued medical and scientific conclusions regarding the children’s injuries and their response s to Appellant’s abuse without expert testimony; (4 ) trial counsel attempted to place the military judge in the position of one of the victims; (5 ) trial counsel made numerous references to Appellant’s lies; and (6 ) it was improper to argue that Appell ant was likely to abu se his newborn son who was not the subject of any specifications at trial. Issues 1 and 2 drew D efense objections that the military judge sustained. Trial defense counsel did not object to issues 3 and 4. Trial counsel was permitted to argue issues 5 and 6 over D efense objection.

Improper argument is a question of law that we review de novo. Frey , 73
M.J. at 248. “The legal test for improper argument is whether t he argument was erroneous and whether it materially prejudiced the substantial rights of
the ac cused.” Id. (quoting United States v. Baer , 53 M.J. 235, 237 (C.A.A.F. 2000)). We must be “confident that [the appellant] was sentenced on the basis
of the evidence alone.” Id. (quoting United States v. Halpin , 71 M.J. 477, 480United States v. Aguirre Obregon , No. ACM 39005

6 (C.A.A.F. 2013) ) . When there is no objection at trial, we review a trial counsel’s sentencing argument for plain error. Halpin , 71 M.J. at 479 . Under a plain error analysis, an appellant must show “(1) there was an error; (2) it was plain or obvious; and (3) the error materially prej udiced a substantial right.” United
States v. Marsh , 70 M.J. 101, 104 (C.A.A.F. 2011). We consider a trial counsel’s
statements in the context of the entire court

- martial. United States v. Carter

, 61 M.J. 30, 33 (C.A.A.F. 2005).

Certain types of argument are generally impermissible in military practice. For example, t rial counsel may not inject into argument “irrelevant matters, such as personal opin ions and facts not in evidence.” United States v. Schroder

, 65 M.J. 49, 58 (C.A.A.F. 2007). Trial counsel also may not make arguments that “unduly

. . . inflame the passions or prejudices of the court members.” Frey , 73 M.J. at 248.

Trial counsel may not use an accused’s duty status to argue for a harsher sentence without a specific link between the crime and the duty status. United
States v. Rhodes , 64 M.J. 630, 631 (A.F. Ct. Crim. App. 2007), aff’d , 6 5 M.J. 310 (C.A.A.F. 2007).

T rial counsel also may not “ask court members to place the mselves in the
shoes of the victim or a near relative.” Id. ; see also Mars h , 70 M.J. at 107 (“Trial counsel’s invitation to the court members to imagine themselves as potential future victims only served to inflame a fear as to what might happen if the panel did not adjudge a discharge.”)

. Additionally , “c alling the accused a liar is a ‘dangerous practice that should
be avoided.’” United States v. Fletcher , 62 M.J. 175, 182 (C.A.A.F. 2005) (quoting United States v. Clifton , 15 M.J. 26, 30 n.5 (C.M.A. 1983) ) . “[F]alse statements about an offense made sometime after the of fense a re not admissible as
evi dence in aggravation.” United States v. Lafollette , No. ACM 38174, 2014 CCA LEXIS 10, *12

– 14 (A.F. Ct. Crim. App. 14 Jan. 2014) (unpub. op.) (citing
United States v. Clabon , 33 M.J. 904, 905

– 06 (A.F.C.M.R. 1991)) ; see R.C.M. 1101(b) (4).

Conversely , statements that are an “integral part of [the] criminal course
of conduct and

. . . explain how [the a ccused] at tempted to carry out his scheme

. . . ‘directly relate[ ] to the offense for which

. . . [the ac cused was] to be sentenced

, ’ ” and thus may be admissible. United States v. Silva , 21 M.J. 336, 337 (C.M.A. 1986) (quoting United States v. Vickers , 13 M.J. 403, 406 (C.M.A. 1982) ) . Also , an accused’s “lack of remorse is relevant to his reha bilitation potential,” and false statements ab out an offen se may demonstrate a lack of remorse. United States v. Condon , No. ACM 38765, 2017 CCA LEXIS 187, *75 (A.F. Ct. Crim. App. 10 Mar. 2017) (unpub. op.); see R.C.M. 1001(b)(5); R.C.M. 1001(f)(2).United States v. Aguirre Obregon , No. ACM 39005

7 Finally, an argument regarding potential recidivis m is generally “ a question requiring expert testimony, empirical re search, and scientific and psychological method, inquiry, and evidence. Recidivism is not a matter resolved through appeal to common sense or a member’s knowledge of ‘the ways of the
world. ’” Frey , 73 M.J. at 250.

We presume that the military judge knows and follows the law absent clear evidence to the contrary, and we “presume that the military judge is able to distinguish between proper and improper sentencing arguments.” United
States v. Erickson , 65 M.J. 221, 225 (C.A.A.F. 2007). This is true regardless of whether the military judge states on the record what portion of the argument is improper and will not be considered. Id.

1. Is sues on which th e milita r y judge sustained defense objection s

. The military judge sustained defense objections to trial counsel’s argument regarding an increased sentence for Appellant’s duty status and trial counsel staring at Appellant during argument. We presume the military judge followed her rulings and did not consider these matters during sentencing deliberations. Thus, we find no error.

2. Issues on which there was no defense objection.

For the first time on appeal, Appellant argues that it was error for the military judge to permit trial counsel to argue medica l con clusions related to the victim’s injuries and scientific conclusion s r egar d i ng the impact of the offense s on the children.

T he mil itary judge did not err in permitting trial counsel to argue, without objection, that the injuries to JM’s three

- year

- old daughter, which were severe enough to cause scarring seven years later, were not the result of a “ minor ” burn and that Appellant’s son “regressed” after the ass aults. These were reason able inferences from the evidence presented and did not cross into the realm of expert opinion

. Ap pellant also argues now for the first time that i t was error for trial counsel to a s k the military judge to place herself in the vict im’s shoes. In fact, t r ial counsel only a sked the mil itary judge to consider the moment when o n e of the
offense s o c curred. “[A]sking the [fact finder] to consider the fear and pain of the victim is conceptually different from asking them to put the mselves in the
victim ’ s place.” See Baer , 53 M.J. at 238. Further, we are confident the military judge kn e w and underst oo d the law and did not improperly consider this evidence or argument in se n t e n cing deliberations. Thus, we find no error

.
3. Issues on which argument was permitted over defense objection.

Trial counsel mentioned numerous ti m e s thro u g h out sentencing argument
that Appellant lied regarding the offe n s es , and such lies constituted a lack ofUnited States v. Aguirre Obregon , No. ACM 39005

8 remorse and rehabilitative potential. This was a proper are a of argument and a fair inference from the evidence in the stipulation of fac t and the providence inquiry. Trial counsel’s argument did not improperly infringe on Appellant’s right to remain silent. Based on the facts in this case, i t was not error for th e trial counsel to argue Appellan t’s lies evidenced a lack of rehabili tative potential.

Appellant has argued that trial counsel’s repeated use of the term “lie” had an improper cumulative impact. Even if trial counsel’s argument regarding Appellant’s lies was excessive , we are convinced the military judge was not improperly influenced by it . Although the military judge did not sustain the Defense objection, she correctly noted that the arguments of counsel were not evidence and that she would give the argum ent only the weight it deserved

. We find no evi dence that the military judge was improperly swayed by the argument. Thus, even assuming that trial counsel’s argument was improper, it did not materially prejudice the substantial rights of Appellant. We are confident Appellant was sentenced on t he basis of the evidence alone.

Trial counsel’s argument that Appellant was “likely to abuse” his newborn son was improper. The Government did not present evidence of rec idivism. While protection of so ciety is a genera lly reco gnized principle of sentencing, it is not a blanket authorization to argue that a convicted servicemember will likely be a repeat offender. Thus, we find the military judge erred by allowing argument on recidivism over D efense objection.

Despite th is error , we are convinced that Appellant was sentenced on the basis of the evidence alone. The improper reference t o Appellant’s recidivism
consti tuted two sentence s of an argument that covered more than ten pages in

t he record of trial. Appellant has not offered a specific argument as to how this improper inference influenced the military judge, and we find no evidence in
th e record that it did. The maximum punish ment in this case in cluded eight years of confinement. T rial counsel argued for 30 months of confinement, and the adjudged sentence included 2 4 months of confin ement. In the PTA, Appellant ne gotiated a confinement cap of 24 months. Thus, t he adjudged sentence was within the range of possible punishments, was less than the amount trial counsel suggested, and equal to the amount Appellant bargained for in the PTA with respect to the period of confinement . The evidence before the military judge was that Appellant had repeatedly abused two children, including one instance of abuse that required a three

- day hospital stay. The improper argument regarding potential recidivism did not prejudice the substantial rights of Appellant, and we are convinced that Ap pellant’s sentence was based on the
evidence admitted at tria l and not any improper argument.United States v. Aguirre Obregon , No. ACM 39005

9 C. Staff Judge Advocate Recommendation

Prior to trial

, Appellan t entered into a PTA w i th the co nv e n ing authority. As part of t h e PTA, Appellant agreed to plead guilty to Specifications 1 and 2, guilty to Specification 4 by ex cepting the w ords “and a belt

, ” and guilty to Specification 5 by excepting the word “arm” and sub stituting the word “hand.” Appellant further agre ed to waive any objection to the Government amending t he
dates in Specification 5. None of these chang es were reflected on the charge sheet before arraignment; however, the parties and the military judge treated the amendment to the dates in Specification 5 as if it had been made before the entry of pleas.

Appellant entered pleas with the ag reed upon exceptions and substitutions. Pursuant to his pleas, th e mil ita r y judge found Appe l la n t guilty of Specifications 1 and 2 as charged and guilty of Specifications 4 and 5 as modified by the agreed upon exceptions and substitutions. Prior to entry of findings, the Government indicated it did not intend to go forward on Specification 3. The military judge, however, did not state on the record at that point that Specification 3 was withdrawn and dismissed nor did she enter a finding for Specification 3. After announcing sentence, the military judge stated that Specification 3 was
withdrawn and dismissed. At some point, the Government made pen and ink changes to the charge sheet for Specifications 4 and 5.

The SJAR informed the convening authority that a su mmary of the charges, specifica tions, pleas, findings, and sentence was contained in the R eport of the R esults of T rial (RRT) attached to the SJAR. Under the “Arraigned” column, the RRT should have reflected Specification 4 as charged; however, it incorrectly stated that Appellant had been arraigne d on an offense that di d not
in c l u de the words “and a belt” and the words “shoulders, hips, and.” 4 T he RRT correctly reflected both th e plea and finding for Specification 4

. With respect to Spe cification 5, t he RRT correctly reflected the exceptions and substitution s, but it failed to include the amended charged time frame agreed to in the PTA

. Appellant was provide d a copy of the SJAR and attach ments, but he did not object to the erroneous RRT during post

- trial process ing

. We review post

- trial processing de novo. United States v. Parker , 73 M.J. 914, 920 (A.F. Ct. Crim. App. 2014). However, failure to timely comment on matters in an SJAR forfeits a claim of error in the absence of plain error. I d. ;

4 The Court

- Mart ial Order (CMO) also includes error s with respect to Specification 4. The CMO should include Specification 4 as charged; however, it is missing the excepted language “and a belt” and the words “shoulders, hips, and” which were never removed

or excepted. Th is appears to be merely an oversight resulting in no pr ejudice to Appellant. Nonetheless, we direct promulgation of a corrected CMO to remedy these mistakes.United States v. Aguirre Obregon , No. ACM 39005

10 R.C.M. 1106(f)(6); United States v. Scalo ; 60 M.J. 435, 436 (C.A.A.F. 2005). “To prevail under a plain error analysis, [the appellant must show] that: ‘(1) there was an error; (2) it was plain or obvious; and (3) the error mate rially prejudiced
a subst antial right.’” Scalo , 60 M.J. at 436 (quoting United States v. Kho , 54 M.J. 63, 65 (C.A.A.F. 2000)).

Because of the highly discretionary nature of the convening authority’s action on a sentence, we may grant relief if an appellant presents “some colorable showing of possible prejudice.” Kho , 54 M.J. at 65 (quoting United States v.
Wheelus , 49 M.J. 283, 28 9 (C.A.A.F. 1998)).

Here, there is no reasonable possibility that a correct RRT would have result ed in a more favorable rec ommendation by the SJA or corrective action by the convening authority. T he RRT informed the convening authority that Appellant had been arraigned on specifica tions that were less seri ous than those

on which he was actually arraigned. Further, the RRT correctly noted Appellant’s pleas and the offenses on which he was convicted, which included modified, less serious, language.

Moreover , we are convinced that despite the errors in the “ A rraigned” section of the RRT , the convening authority was properly advised of the specifications of which Appellan t was convicted , and the convening authority woul d not
have taken more fa vorable action ev en if t here were not minor errors. As such, there is no colorable showing of possible prejudice from the errors in the SJAR
attachment.

D. Substantially Verbatim Transcript 5

The beginning of the authenticated transcript reflects the following discussion betwe en the military judge and Appellant:

MJ: Sergeant Aguirre

– - [The accused stood.]

MJ: Go ahead and have a seat, Sergeant Aguirre. I’m going to be going over your rights with you this morning and you can remain seated unless I specifically ask you to stand. Okay?

ACC: Yes, ma’am.

MJ: Go ahead and have a seat.

[The accused resumed his seat.]

5 This issue is raised pursuant to Grostefon , 12 M.J. 431.United States v. Aguirre Obregon , No. ACM 39005

11 MJ: My understanding, Sergeant Aguirre, is that although you actually have a hyphenated last name, you only go by Sergeant Aguirre. Is that correct?

ACC: That is correct, ma’am.

MJ: Okay. That’s what I’m g oing to refer to you as, then.

On appeal, Appellant alleges that there was “ [a] n ensuing exchange during
which Appellant explained to the mili tary judge that his name was not, in fact, hyphenated ” w hich “ is not in the record of trial.” Appellant provides no evidence, such as an af fidavit, of the supposed missing p ortion of the record of tri

al.

We review de novo whether a record is complete and a transcript is verbatim. United States v. Davenport , 73 M.J. 373, 376 (C.A. A.F. 2014). In assessing
if a record is complete or a transcript is verbatim, the threshold question is“whether the omitted material was ‘substantial,’ either qualitatively or quantitatively.” United States v. Lashley , 14 M.J. 7, 9 (C. M.A. 1982) ; c f. United
States v. Gaskins , 72 M.J. 225, 229 (C.A.A.F. 2013) (stating that a “substantial” omission makes a record incomplete).

An appellant bears the initial burden of proving that the record is incomplete. See Asif v. United States , NMCCA 2 00601040, 2008 CCA LEXIS 625, at *5 (N

- M. Ct. Crim. App. 22 Apr. 2008) (unpub. op.) (“In this case, the petitioner has failed to demonstrate that the omissions he alleges are substantial.”). “‘[W]hen there is a substantial omission from the record, a presu mption of prejudice arises’ that the Government has the responsibility of rebutting.” United
States v. Santoro , 46 M.J. 344, 346 (C.A.A.F. 1997) (quoting United States v. Gray , 7 M.J. 296, 298 ( C.M.A. 1979)).

A transcript may be deemed “substantially verba tim” even though it has
certain omis sions. Davenport , 73 M.J. at 377. In contrast, omissions are qualitatively substantial if the substance of the omitted material “related directly to the sufficiency of the Government’s evidence on the merits,” and “the t estimony could not ordinarily have been recalled with any degree of fidelity.” Lashley , 14 M.J. at 9. Omissions ar e quantitatively substantial un less “[t]he totality
of omissions

. . . becomes so unimportant and so uninfluential when viewed in the light of the whole record, that it approaches nothingness.” United States v.
Nelson

, 13 C.M.R. 38 , 43 (C.M.A. 1953).

Appellant has presented no evidence supporting his claim of a mis sing portion of the transcript. With out such evidence, we conclude that Appellant has
failed to meet h is initial burden of demonstrat ing that there is an omission. Even assuming that a furth er discussion about the hyphenation of Appellant’s
last name occurred , this omission would be insubstantial. Whether or not Appellant’s name is hyp h en ated did not impact whether h e was the prop er personUnited States v. Aguirre Obregon , No. ACM 39005

12 on trial or the merits of this guilty plea case. Therefore, the transcript is substantially verbatim, and Appellan t was not prejudiced by any alleged omission.

III. C ONCLUSION
The findings and the sentence are correct in law and fact, and no error ma

terially 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

.

FOR THE COURT

KURT J. BRUBAKER Clerk of the Court