UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before

KERN, ALDYKIEWICZ, and MARTIN

Appellate Military Judges

UNITED STATES, Appellee

v.

Private E2 STEVEN F. GUZMAN II

United States Army, Appellant

ARMY 20100020

Headquarters, Fort Bliss

Michael Hargis, Military Judge

Colonel Michael J. Benjamin, Staff Judge Advocate (pretrial)

Colonel Francis P. King, Staff Judge Advocate (post-trial)

For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M. 

Jamison, JA; Major Jacob D. Bashore, JA; Captain Stephen J. Rueter, JA (on brief). 

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Katherine S. Gowell, 

JA; Captain Daniel D. Maurer, JA (on brief). 

20 September 2013

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MEMORANDUM OPINION

----------------------------------

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

ALDYKIEWICZ, Judge:

A military judge sitting as a general court-martial convicted appellant, 

pursuant to his pleas, of absence without leave, wrongful use of cocaine, and 

wrongful possession of cocaine in violation of Articles 86 and 112a, Uniform Code 

of Military Justice, 10 U.S.C. §§ 886, 912a (2006) [hereinafter UCMJ]. Contrary to 

his pleas, a panel of officer and enlisted members convicted appellant of attempted 

rape, assault consummated by a battery upon a child under 16 years of age, and 

housebreaking in violation of Articles 80, 128, and 130, UCMJ. The panel 

sentenced appellant to a dishonorable discharge, confinement for 17 years, forfeiture 

of all pay and allowances, and reduction to the grade of E-1. The convening 

authority approved the sentence as adjudged, crediting appellant with 229 days of 

confinement. 
GUZMAN—20100020

2

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

Appellate counsel raises three assignments of error: (1) that the government failed to 

disclose specifically requested and discoverable evidence under Brady v. Maryland, 

373 U.S. 83 (1963), Article 46, UCMJ, and Rule for Courts-Martial [hereinafter 

R.C.M.] 701, in violation of appellant’s due process rights; (2) that the evidence is 

both legally and factually insufficient to sustain appellant’s conviction for attempted 

rape; and (3) the “dilatory post-trial processing of [appellant’s] case warrants 

relief.” Appellant also personally raises matters pursuant to United States v. 

Grostefon, 12 M.J. 431 (C.M.A. 1982). All three issues raised by appellate counsel 

warrant discussion but no relief.

1

 

FACTS

BACKGROUND – GENERALLY

On 29 October 2008, just outside of Fort Bliss, Texas, appellant purchased 

cocaine from an unnamed individual. He then inhaled (snorted) the cocaine through 

his nose after placing it on a compact disc (CD) case that he had in his vehicle. This 

2008 cocaine use formed the factual basis for the first of appellant’s two Article 

112a, UCMJ offenses to which he pleaded guilty (wrongful use of cocaine). The 

factual basis for the remaining guilty plea offenses, violations of Article 86 and 

112a, UCMJ (i.e., absence without leave (AWOL) terminated by apprehension and 

wrongful possession of cocaine respectively) are addressed below. 

On 27 May 2009 appellant resided on Fort Bliss. Around 1800 hours, 

appellant went to the off-post residence of Mr. MC [hereinafter MC], a friend and 

admitted drug dealer, where appellant and MC proceeded to use cocaine. As he had 

done seven months earlier, appellant snorted his cocaine while MC smoked his. 

After using approximately “two lines” of cocaine each, appellant and MC departed 

MC’s residence in appellant’s truck to “reload” (i.e., resupply) during which time 

MC purchased an “eight ball,” approximately seven grams of cocaine. After 

reloading, appellant and MC returned to MC’s residence where MC weighed the 

cocaine and provided appellant with a plastic baggie containing an estimated 5 

grams or $250.00 worth of cocaine, the majority of which appellant and MC use d

 

1 Among those issues personally raised by appellant pursuant to Grostefon is a 

challenge to the sufficiency of the evidence in support of his conviction for 

attempted rape, a matter specifically raised by appellate counsel. To the extent that 

appellant’s Grostefon issues overlap with appellate counsel’s three assignments of 

error, they are addressed and resolved by this court’s opinion. To the extent 

appellant personally raises matters not addressed by appellate counsel’s assignments 

of error, those matters have been considered, are without merit, and warrant no 

relief.
GUZMAN—20100020

3

between 2100 hours, 27 May 2009 and 0300 hours, 28 May 2009. MC estimated that 

during that six hour period following the reload, he and appellant used cocaine every 

20-30 minutes. Appellant himself corroborated MC’s estimation when appellant, 

testifying on the merits, estimated that he did approximately 15 to 21 lines of 

cocaine, his last use occurring within 30 minutes of his 0300 hours, 28 May 2009 

departure from MC’s residence to return to Fort Bliss. Appellant testified that each

line of cocaine represented an estimated .25 to .50 grams. 

As appellant departed MC’s residence to return to Fort Bliss, he took with him 

the now near empty baggie of cocaine. According to appellant all that remained in 

the baggie was “cocaine residue,” a quantity appellant described as insufficient to be 

useable. The cocaine within this baggie formed the factual basis for appellant’s 

second Article 112a, UCMJ guilty plea offense (i.e., wrongful possession of 

cocaine). 

At approximately 0545 hours, 28 May 2009, Ms. DR, the civilian spouse of 

Private First Class (PFC) GR, awoke as her husband prepared to depart their on-post 

duplex to begin his duty day. As PFC GR departed, DR fell back asleep. Ms. DR 

customarily slept in shorts only, sleeping naked from the waist up with the bed 

covers pulled all the way up for warmth; the morning of 28 May 2009 was no 

different. That morning DR slept in pink shorts and no shirt, covered by the 

bedding. 

At approximately 0600 hours, DR was awakened to the pain of being hit on

the temple beside her left eye and finding a man on top of her. Her assailant was 

wearing black pants, a black shirt, and a “toboggan or beanie like a winter cap”

which fully covered his face and head initially concealing her attacker’s identity. 

DR screamed and fought back. However, her attacker continued to hit her in the 

face and jaw. He also grabbed her jaw, head, and neck, attempting to turn her over, 

attempts that, because of DR’s active resistance, proved ineffectual despite his

continued efforts. The bedding that covered DR’s partially naked body when she 

had fallen back asleep was gone, ostensibly removed by appellant prior to him 

getting into bed with and climbing on top of DR. 

Throughout DR’s struggle with appellant, appellant remained on top of her,

straddling her body with his hips and he repeatedly struck her in the head and face

with his fists. Appellant used his legs to restrain DR’s legs, placing his legs on the 

outside of DR’s legs to limit her movement. At one point, appellant raised his hips 

and shifted his weight forward, driving DR’s shoulder into the bed. During this 

interchange, appellant’s chest made contact with appellant’s bare breasts. At no 

time, however, did appellant grope or reach for DR’s bare breasts. After making 

contact with her naked chest, the struggle continued with appellant again using his 

body weight to pin DR to the bed. Appellant shifted his weight from his lower body 

forward for a second time, again raising his hips off of DR’s body. This time 
GUZMAN—20100020

4

appellant’s hand was on DR’s naked stomach, a hand appellant moved towards DR’s 

crotch, moving it from above to below her navel. Appellant’s hand movement 

ceased just below DR’s navel, however, because DR was able to free her legs which 

she used to kick appellant in the back. DR specifically recalls feeling the back of 

appellant’s hand making contact with her naked stomach and moving down toward

her crotch. 

As DR continued to fight off her attacker, an attacker she had yet to identify, 

she made contact with the cap concealing his face and head, partially exposing her 

attacker’s head. Capitalizing on the moment, she was able to fully remove the cap 

and expose her yet unidentified attacker. Once removed, she immediately 

recognized her attacker as appellant, the soldier who lived in the residence 

diagonally across the street from her. Upon recognizing him, DR yelled his name, at 

which time appellant jumped off of DR and fled from the residence to his home

across the street. DR likewise fled the residence, running to the adjacent duplex for 

help. As she fled her own residence in search for help, DR saw appellant run into 

his home. 

Within minutes of the initial attack, at approximately 0610 hours, DR made 

contact with her neighbor, Specialist (SPC) WC, a medic who described DR as 

“fairly frantic” and “obviously in distress.” As DR tried to tell SPC WC about the 

attack in her home, she observed appellant, wearing only jeans and no shirt, get into 

his truck and flee the area. DR’s account of appellant’s flight from the area was 

confirmed by SPC WC, who, while trying to calm DR and determine what happened

to her, heard tires squeal. As he looked up, SPC WC observed a shirtless appellant

in his truck fleeing the area. Within minutes, SPC WC notified law enforcement 

about the attack on DR. DR was transported to the local hospital and agents from 

the Fort Bliss Criminal Investigation Command (CID) processed her on-post 

residence as a crime scene. CID seized, among other items, the bedding from her 

bedroom (i.e., two comforters and a blanket) and a rubber glove found adjacent to 

DR’s bed. As part of the investigation, CID also later seized the pink shorts DR was 

wearing when attacked.

At approximately 0700 hours, 28 May 2009, appellant, having fled Fort Bliss, 

returned to MC’s residence where Ms. TC, MC’s self-proclaimed “common law” 

wife, asked appellant to drive her 13-year-old daughter, Ms. DC to school. 

Appellant agreed and sometime between 0715 hours and 0720 hours, appellant and 

DC left in appellant’s truck en route to DC’s school. Unfamiliar with the route, DC 

provided appellant with directions, telling appellant when and where to turn. 

Shortly before arriving at her school, however, appellant stopped at a nearby 7-

Eleven convenience store to fill up his truck with gas. Behind the 7-Eleven was an 

alley. After filling up his truck, appellant proceeded towards DC’s school. Rather 

than stop at her school, however, appellant drove past DC’s school. After turning 

the vehicle around, in an apparent attempt to return to the school, appellant again 
GUZMAN—20100020

5

drove past DC’s school, this time driving to the alley behind the 7-Eleven. Once in 

the alley, appellant turned off his truck, unbuckled his seat belt, and, without saying 

a word, proceeded to place his right hand around DC’s neck and began to choke her. 

After a brief struggle, DC broke appellant’s grip, opened the passenger side door of 

appellant’s truck, and ran to her school where she initially made contact with her art 

teacher, Mr. O. Mr. O took a crying and obviously distraught DC to the assistant 

principal’s office. El Paso law enforcement was notified and, after Ms. HS, the 

school nurse, examined DC, DC was taken home and subsequently interviewed by 

members of the El Paso Police Department. 

That same day, after appellant’s attack on DC, he fled the area in his truck en 

route to North Carolina. At approximately 0836 hours, as appellant was fleeing the 

El Paso area, appellant called Staff Sergeant (SSG) SW, his squad leader, and, 

without prompting or explanation, told SSG SW, “I fucked up.” 

Two days later, on 30 May 2009, appellant was apprehended in North 

Carolina and detained pending extradition to El Paso, Texas on charges stemming 

from his attack on DC. Appellant’s absence from his unit beginning on 28 May 2009 

until it was terminated by apprehension on 30 May 2009 formed the factual basis for 

appellant’s guilty plea to the Article 86, UCMJ violation (i.e., AWOL terminated by 

apprehension), the third of three offenses to which appellant pleaded guilty. 

PRETRIAL ARTICLE 32, UCMJ INVESTIGATION, REQUEST FOR PRETRIAL 

DEPOSITION, AND PRETRIAL DISCOVERY

On 24 August 2009, the Article 32, UCMJ investigation into appellant’s 

charges and specifications was held. Both DR and DC were declared unavailable, 

however, DR testified telephonically; DC did not provide any testimony. 

On 31 August 2009, the Investigating Officer completed his Article 32, UCMJ 

report. Among the enclosures to the Investigating Officer’s Report was “Exhibit 20: 

EPPD [El Paso Police Department] Incident/Investigation Report for crime 

committed against Miss [DC], dated 28 May 2009.” Within Exhibit 20 are two 

references to pictures taken of DC close in time to appellant’s attack. The pictures 

themselves are not part of the Article 32, UCMJ report and there is no evidence any 

pictures were ever considered by the Article 32 Investigating Officer. 

On 25 September 2009, appellant’s trial defense counsel submitted a written 

request, thru the trial counsel and staff judge advocate, to the General Court-Martial 

Convening Authority (GCMCA) asking, in part, that: the Article 32 Investigating 

Officer be appointed as a deposition officer to depose DC; and, the Investigating 

Officer “ensure the government obtain subpoena (sic) for Ms. [C’s] school records, 

social work service records, and photographs of Ms. [C] on or about 28 May 200 9.” 
GUZMAN—20100020

6

On 18 November 2009, the GCMCA acted on the 25 September 2009 request, 

denying the requested deposition of DC and noting that “[a]ll discoverable records 

and evidence, including a videotaped interview, pertaining to Ms. [C] are available 

to the defense under the provisions of Article 46, Uniform Code of Military Justice 

and Rule for Court-Martial 701.” 

As noted in the government’s pleadings before this court, “the record in this 

case does not include a direct discovery request from the defense ask ing for the 

photographs at issue, nor does the record include a motion to compel such 

production.” However, the government, in its pleadings before this court, concedes 

the trial defense counsel’s memorandum constitutes a specific request for the 

pictures at issue, a concession we accept for purposes of this decision. 

PRETRIAL ARTICLE 39(a) SESSIONS AND APPELLANT’S GUILTY PLEA

On 24 November 2009, appellant was arraigned on the charges at issue. 

Article 39(a), UCMJ sessions were held on 24 November 2009, 11 December 2009, 

28 December 2009, and 11 January 2010. The guilty plea portion of appellant’s 

trial, voir dire, and assembly of the court occurred on 11 January 2010 and the 

remainder of the trial through sentencing occurred from 11 January 2010 through 14 

January 2010. 

On 4 December 2009, trial defense counsel brought a motion to compel DC’s 

deposition. Within the defense’s motion was an acknowledgement that the defense

received the El Paso Police Report, a fact confirmed in the government’s 10 

December 2009 response to the motion to compel deposition. 2 At no time during the 

pendency of appellant’s court-martial or during the proceedings themselves did trial 

defense counsel bring a motion to compel access to or production of any 

photographs relating to DC. 

As noted above, on 11 January 2010, the pretrial phase of appellant’s courtmartial ended and appellant entered a mixed plea, pleading guilty to one violation of 

Article 86, UCMJ (i.e., absence without leave terminated by apprehension) and two 

violations of Article 112a, UCMJ (i.e., wrongful use of cocai ne and wrongful 

possession of cocaine). Appellant pleaded not guilty to the remaining specifications

and elected trial before an officer and enlisted panel. 

 

2

The motion to compel DC’s deposition was litigated during the 11 December 2009 

Article 39(a), UCMJ session of the court and resolved by the parties without formal 

ruling by the military judge. 
GUZMAN—20100020

7

TRIAL ON THE CONTESTED OFFENSE(S) – GOVERNMENT MERITS CASE

In its case-in-chief, both victims, DR and DC, positively and without 

equivocation, identified appellant as their attacker, each testifying consistent with 

the facts as noted in the above background section.

3

 Most notable of the thirteen 

additional merits witnesses called by the government were the following: (1) SPC 

WC, who identified appellant, shirtless, as he fled the housing area immediately 

following the attack on DR, corroborating DR’s identification and observations; (2) 

Ms. MLH, an expert in trace evidence who testified that the pink fibers found on 

sweat pants seized from appellant’s home “were consistent or the same in all the 

characteristics [she] could [scientifically] examine with the fibers of the pink shorts” 

DR was wearing the morning of the attack; (3) Mr. MT, a DNA expert, who testified 

that appellant was a possible contributor of the mixed profile DNA evidence fo und 

“on the inside of the glove” seized from DR’s bedroom, and, after factoring in the 

Earth’s population of 9 billion people and the statistical probability of randomly 

finding the DNA profile found in the glove among Hispanics at “one in four point 

two quadrillion,” he “would not expect to find this DNA profile anywhere else in the

population on earth;” and, (4) SSG SW, appellant’s squad leader, who testified that 

within hours of attacking DR and DC, appellant called him and, without prompting 

or explanation, stated, “I fucked up.” 

Additionally, the government introduced, among other items, Prosecution 

Exhibits 15 and 20, the “Trace Evidence Branch – Final Report,” dated 26 June 2009 

and the “DNA Branch – Final Report,” dated 7 August 2009, both of which were 

consistent with the testimony provided by Ms. MLH and Mr. MT respective ly, 

TRIAL ON THE CONTESTED OFFENSE(S) – DEFENSE MERITS CASE

The defense’s case began with the appellant taking the stand. The central 

theme of the defense’s case was two-fold: (1) DR was mistaken in identifying 

appellant as her attacker in that appellant was never in her home; and, (2) appellant

simply drove DC to school without ever assaulting her or taking her to any alley. Of 

note, during his direct testimony, appellant admitted to “using illicit drugs” with MC 

on 27 May 2009 as well as deciding, on 28 May 2009, to leave Texas and go AWOL. 

Appellant testified that he was not in DR’s home the morning of 28 May 2009. 

When asked about the glove with “his DNA,” he testified that he used gloves to 

paint his vehicle and when done painting, he discarded the used gloves in the “trash 

recycle beside [his] house.” In an attempt to discredit DC, appellant testified that 

his removal of the passenger’s interior door panel to his truck caused the passenger 

 

3

The government called a total of 15 merits witnesses in its case -in-chief. The 

defense called seven witnesses, which included appellant, on the merits. The 

government called one rebuttal witness. 
GUZMAN—20100020

8

door handle inside the vehicle to become inoperable, requiring him to open the door 

from the outside by using his ignition key “to unlock the door.” 

Appellant’s direct testimony concluded with appellant attempting to explain 

his spontaneous and unsolicited statement to his squad leader. The following 

colloquy between appellant’s trial defense counsel and appellant transpired:

Q. Also Private Guzman, I know that there were text 

messages; I know there were phones going back and forth. 

When Sergeant (sic) [W], who’s given testimony today, he 

said you said the “F” word, “I messed up.” What were 

you referring to?

A. I was talking about going AWOL, sir.

Q. And it wasn’t because you assaulted somebody?

A. No, sir.

Q. And it wasn’t because you tried to rape anyone?

A. No, sir.

Q. And it wasn’t because you tried to break into 

somebody’s house?

A. No, sir.

Q. Private Guzman, on the day in question, 28 May 2009, 

did you assault [DR]?

A. No, sir, I did not.

Q. Also Private Guzman, did you break into the [R’s] 

house?

A. No, sir, I did not.

Q. Did you assault [DC] on that day?

A. No, sir, I did not.

Earlier in his direct examination appellant denied ever being in DR’s home while the 

[R’s] were home and denied being in the home on 28 May 2009. 
GUZMAN—20100020

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Of the remaining six defense witnesses, only HS is relevant to those issues 

identified at the outset of this opinion as worthy of discussion, specifically the 

discovery-related assignment of error and the government’s alleged failure to turn 

over pictures relating to DC shortly after she was attacked. As previously noted, HS 

was the school nurse who examined DC within minutes of appellant’s attack. Ms. 

HS testified that she examined DC “before eight-thirty AM,” and that she examined 

“her face, her neck, her chest, her back, her abdomen, her arms and her hands.” Ms. 

HS’s examination of DC within an hour of appellant’s attack failed to reveal any 

signs of injury, not even any redness. 

TRIAL ON THE CONTESTED OFFENSE(S) – GOVERNMENT REBUTTAL CASE

In rebuttal, the government called only one witness, MC, who testified that, 

other than a missing door panel, the passenger door to appellant’s truck was fully 

functional and could be opened from both the inside and outside of the vehicle with 

the door handle and without assistance from appellant. MC testified that he himself 

opened the passenger door of the truck using the interior door handle when he was a 

passenger in appellant’s vehicle fewer than 24-hours prior to the assault upon DC, 

apparently referring to the time he drove in appellant’s car to “reload” on cocaine . 

CLOSING ARGUMENTS

The government’s primary argument on findings spanned nine pages of the 

932-page record and was approximately 1940 words in length. At no time during the 

government’s main argument did trial defense counsel object, nor was there any 

interruption by the military judge. The defense’s closing argument covered 29 pages 

of the record and was approximately 6780 words in length, an argument interrupted 

three times by government objection as well as three additional times by the military 

judge for a matter unrelated to the government’s objection. The military judge ’s sua 

sponte interruptions of trial defense counsel’s argument was to advise trial defense 

counsel of both the irrelevance and impropriety of stating trial defense counsel’s 

personal views, thoughts, or opinions during closing argument. The government’s 

rebuttal argument spanned eight pages, consisted of approximately 1965 words, and 

was, like their main argument, made without objection by trial defense counsel or 

interruption by the military judge.

Although improper argument by the trial counsel is not raised as a separate 

assignment of error, the government’s rebuttal argument is raised by appellate 

counsel in the pleadings before this court in support of their legal and factual 

sufficiency assignment of error challenging appellant’s attempted rape conviction. 

At issue are eight words used by government at the close of the rebuttal argument.

The government argued, in part: “[h]e lifted up his hand and reached his hand down. 

Pulled out his penis; pulled her shorts down. This act was going to happen.” The 

italicized language, argued as error on appeal, was neither objected to nor resulted in
GUZMAN—20100020

10

any curative instruction by the military judge, either in response to a defense request 

for such an instruction or sua sponte. All parties agree and a review of the record 

reveals no evidence at the court-martial that DR’s attacker either pulled out his penis 

or pulled down her [DR’s] shorts during the 28 May 2009 attack. 4

POST-TRIAL EVIDENTIARY DEVELOPMENTS

On 17 November 2011, this court granted defense appellate counsel’s motion 

to attach Defense Appellate Exhibit A (DAE A) and Defense Appellate Exhibit B 

(DAE B), the former an affidavit from appellant’s trial defense counsel and the latter 

a CD with seven digital images [hereinafter pictures], five allegedly of DC shortly 

after appellant’s attack and two of El Paso Police Department “Call Cards.” The 

trial defense counsel’s affidavit states, in part:

2. Before the Court Martial (sic) in January 2010, I 

requested discovery from the Government’s Counsel. 

Specifically, I requested copies of pictures that had been 

taken of [DC] by the El Paso Police Department regarding 

the alleged assault charge via email. There were no 

pictures produced by the Government and no Government 

attorney, to my knowledge, was in possession of the 

pictures; however, the El Paso Police Report stated 

pictures were taken in the El Paso Police Report. 

3. So after requesting copies of the pictures from the 

Government’s Counsel and not receiving any pictures, I 

left the pictures issue alone until after the Court Martial

(sic). However, after the Court Martial, I requested copies 

of the pictures via FOIA from the El Paso Police 

Department in El Paso, Texas. 

4. When I received the pictures from the El Paso Police 

Department in 2011, I forwarded the pictures to the 

Defense Appellate Division Attorney CPT [SR].

 

4 DR testified and the parties agree that DR’s attacker never groped or fondled her 

bare breasts, despite making chest to chest contact during the atttack. DR further 

testified, on cross-examination by trial defense counsel, that she was never 

“penetrated” and that “during the scuffle” her attacker did not try to penetrate her. 

Penetration, however, was never defined. 
GUZMAN—20100020

11

5. I have no knowledge of the Government’s attorney 

holding onto pictures and not disclosing. It is my belief 

that the El Paso Police Department was slow in processing 

the pictures. 

With the exception of one picture found on DAE B, none of the pictures are 

date/time stamped. The one picture that is date/time stamped bears the date/time 

stamp of “05/27/2009 14:34,” a date/time stamp approximately 17 1⁄2 hours prior to 

the assault at issue. This picture ostensibly5reveals DC at her middle school as 

evidenced by the notes on the bulletin board behind DC and over her left shoulder. 

The remaining four pictures depicting a young female are ostensibly6 DC in a room 

at the El Paso Police Department. None of the five pictures reveal any injury or 

redness to either DC’s neck or the surrounding facial area, although the date/time 

stamped picture reveals redness in the subject’s eyes, redness not inconsistent with 

someone who has recently been crying.7 

POST-TRIAL PROCESSING

A summary of the post-trial processing of appellant’s case follows below with 

a more detailed chronology in the appendix to this opinion. 

 14 January 2010 – trial ends;

 7 December 2010 – initial action taken;

 14 December 2010 – record of trial received by this court;

 9 November 2011 – brief on behalf of appellant filed;

 6 June 2012 – brief on behalf of appellee filed;

 12 June 2012 – reply brief on behalf of appellant filed;

 13 May 2013 – 1st motion for expedited review filed;

 

5

“Ostensibly” is used because DAE B lacks any accompanying documentation 

providing information about the photographs contained therein such as who took 

them, when they were taken, or under what factual scenario or circumstances they 

were taken. In other words, the photographs lack, beyond the accompanying 

affidavit from the trial defense counsel (DAE A), any traditional foundation

documents (see Military Rule of Evidence [hereinafter Mil. R. Evid.] 901) normally 

associated with photographs to establish relevance under Mil. R. Evid. 401.

6

See footnote 5 supra.

7

For purposes of this appeal, we shall treat the pictures as being that of DC 

following the incident since their authenticity as well as the trial defense counsel’s 

affidavit is unchallenged by the government in its pleadings before this court.
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 22 July 2013 – supplemental assignment of error filed;

 23 July 2013 – 2d motion for expedited review filed; and 

 2 August 2013 – supplemental appellee brief filed.

LAW AND DISCUSSION

ALLEGED DISCOVERY VIOLATION 

We first address appellant’s assignment of error alleging a failure on the 

government’s part to disclose “evidence prior to trial which was specifically 

requested and discoverable under Brady v. Maryland, 373 U.S. 83 (1963), Article 46, 

UCMJ, and Rule for Courts-Martial 701, thereby violating appellant’s due process 

rights.” 

“Where an appellant demonstrates that the Government failed to disclose 

discoverable evidence in response to a specific request or as a result of prosecutorial 

misconduct, the appellant will be entitled to relief unless the Government can show 

that nondisclosure was harmless beyond a reasonable doubt.” United States v. 

Roberts, 59 M.J. 323, 327 (C.A.A.F. 2004) (citing United States v. Hart, 29 M.J. 

407, 410 (C.M.A. 1990)). “Failing to disclose requested material favorable to the 

defense is not harmless beyond a reasonable doubt if the undisclosed evidence might 

have affected the outcome of the trial.” United States v. Coleman, 72 M.J. 184, 187 

(C.A.A.F. 2013). “The review of discovery violations involves case-specific 

considerations.” United States v. Santos, 59 M.J. 317, 322 (C.A.A.F. 2004). “‘[A]n 

appellate court may resolve a discovery issue without determining whether there has 

been a discovery violation if the court concludes that the alleged error would not 

have been prejudicial.” United States v. Luke, 69 M.J. 309, 320 (C.A.A.F. 2011) 

(quoting Santos, 59 M.J. at 321). 

Article 46, UCMJ provides:

The trial counsel, the defense counsel, and the courtmartial shall have equal opportunity to obtain witnesses 

and other evidence in accordance with such regulations as 

the President may prescribe. Process issued in courtmartial cases to compel witnesses to appear and testify 

and to compel the production of other evidence shall be 

similar to that which courts of the United States having 

criminal jurisdiction may lawfully issue and shall run to

any part of the United States, or the Commonwealths and 

possessions. 

Rule for Courts–Martial 701(a)(2) provides:
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After service of charges, upon request of the defense, the 

Government shall permit the defense to inspect:

(A) Any books, papers, documents, photographs, tangible 

objects, buildings, or places, or copies of portions thereof, 

which are within the possession, custody, or control of 

military authorities, and which are material to the 

preparation of the defense or are intended for use by the 

trial counsel as evidence in the prosecution case-in-chief 

at trial, or were obtained from or belong to the accused; 

and

(B) Any results or reports of physical or mental 

examinations, and of scientific tests or experiments, or 

copies thereof, which are within the possession, custody, 

or control of military authorities, the existence of which is 

known or by the exercise of due diligence may become 

known to the trial counsel, and which are material to the 

preparation of the defense or are intended for use by the 

trial counsel as evidence in the prosecution case-in-chief 

at trial.

(emphasis added). R.C.M. 701(a)(6) states:

Evidence favorable to the defense. The trial counsel shall, 

as soon as practicable, disclose to the defense the 

existence of evidence known to the trial counsel which 

reasonably tends to:

(A) Negate the guilt of the accused of an offense charged;

(B) Reduce the degree of guilt of the accused of an 

offense charged; or

(C) Reduce the punishment. 

(emphasis added).

A review of appellant’s trial defense counsel’s affidavit, DAE A, reveals 

several facts relevant to the alleged nondisclosure by the government, facts 

undisputed in the record. First, the CD containing the pictures at issue was 

apparently not in the possession of the government; rather, the undisputed evidence 

of record is that the pictures were maintained by civilian law enforcement 

authorities, to wit, the El Paso Police Department, until provided to the trial defense 
GUZMAN—20100020

14

counsel in response to a post-trial Freedom of Information Act request. Second, trial 

defense counsel was aware of the pictures’ existence prior to trial, as evidenced not 

only by DAE A but also by the trial defense counsel’s 25 September 2009 

memorandum to the convening authority requesting, in part, that the Article 32 

Investigating Officer “ensure the government obtain subpoena (sic) for Ms. [C’s] 

school records, social work service records, and photographs of Ms. [C] on or about 

28 May 2009.” Third, the nature of the pictures at issue, that is, whether favorable 

to the defense or not, was not readily apparent to the government. 

On 18 November 2009, the convening authority responded to the trial defense 

counsel’s request, noting that “[a]ll discoverable records and evidence, including a 

videotaped interview, pertaining to Ms. [C] are available to the defense under the 

provisions of Article 46, Uniform Code of Military Justice and Rule for CourtMartial 701.” By its plain language, defense was referred back to Article 46, UCMJ, 

and R.C.M. 701, the former providing defense with equal access to evidence and the 

latter requiring the government turn over evidence “within the possession, custody, 

or control of military authorities.” Nothing in the 18 November 2009 response 

memorandum establishes either “possession, custody, or control” of the pictures at 

issue by military authorities or whether the pictures are “favorable to the defense.”

 

Having not received any pictures, the trial defense counsel in his affidavit 

notes that he “left the pictures issue alone until after the Court Martial (sic). 

However, after the Court Martial (sic), [he] requested copies of the pictures via 

FOIA from the El Paso Police Department in El Paso, Texas.” The trial defense 

counsel’s affidavit concludes with the following: “I have no knowledge of the 

Government’s attorney holding onto pictures and not disclosing. It is my belief that 

the El Paso Police Department was slow in processing the pictures.”

The evidence of record fails to establish that the pictures contained on DAE B 

were “within the possession, custody, or control of military authorities ” triggering 

the government’s obligation to disclose pursuant to R.C.M. 701(a)(2).8 The record 

also fails to establish whether the pictures, whose existence was apparently known to 

 

8

That the pictures at issue were not within the government’s “possession, custody, 

or control” is necessarily established by the trial defense counsel’s 25 September 

2009 memorandum seeking a subpoena for, inter alia, the pictures as the government 

has no need to subpoena that which is already within its possession or control. 

“R.C.M. 703(f)(4)(B) provides for the subpoena of evidence not under control of the 

Government.” United States v. Reece, 25 M.J. 93, 94-95 (C.M.A. 1987); see 

United States v. Rodriguez, 57 M.J. 765, 770 (Navy-Marine Ct. Crim. App. 2002) 

(“The Government may obtain by subpoena evidence that is not under its control. 

R.C.M. 703(f)(4)(B)”); United States v. Pinson, 54 M.J. 692, 699 (Air Force Ct. 

Crim. App. 2001). 
GUZMAN—20100020

15

all parties at the time of the Article 32 investigation, was evidence known to the trial 

counsel reasonably tending to negate appellant’s guilt, reduce the degree of guilt, or 

reduce any punishment that might be adjudged if found guilty. In other words, the 

record is silent regarding the government’s awareness of any evidence favorable to 

the defense and thus discoverable under R.C.M. 701(a)(6). Furthermore, nothing in 

the record establishes trial defense counsel was denied access to the pictures by the 

civilian agency. To the contrary, once a FOIA request was submitted, trial defense 

counsel received the pictures. 

Assuming without deciding that the evidence was within the government’s 

control, exculpatory under Brady, and “located within the parameters of files that 

the prosecution must review for exculpatory material,” United States v. Williams, 50 

M.J. 436, 440 (C.A.A.F. 1999), we find, under the facts of this case, appellant 

waived any objection to nondisclosure of the evidence. See United States v. Avery, 

52 M.J. 496, 499 (C.A.A.F. 2000) (finding waiver by defense upon discovery of 

prior rape allegation by victim against another Soldier after trial commenced yet 

failing to request a continuance, make a motion to compel, and indicating an intent 

not to go into the prior rape allegation). Trial defense counsel’s post-trial affidavit, 

DAE A, indicates a conscious decision by counsel to forego production of pictures, 

pictures that he knew were in existence prior to trial. Rather than seek a 

continuance or motion to compel, trial defense counsel chose to leave the pictures 

issue “alone until after the Court Martial (sic).” Assuming waiver does not apply, 

we find no error on the part of the military judge, plain or otherwise with regard to 

non-production of the pictures in question, pictures the existence of which the 

military judge was never independently aware or made aware of by the trial defense 

counsel who knew of their existence and location. 

Finally, we find nondisclosure under the facts of this case to be harmless 

beyond a reasonable doubt, entitling appellant to no relief. See Santos, 59 M.J. at 

321. The pictures at issue are, or purport to be, images of DC following appellant’s 

attack. They show DC’s face and neck without any signs of visible injury. This 

exact information, however, was already before the trier of fact in the form of live 

testimony from both DC, appellant’s accuser, and a defense witness, HS, the school 

nurse who examined DC within an hour of the attack. DC confirmed, on crossexamination, that appellant’s attack left no marks. Similarly, HS testified her 

examination of DC’s face, neck, chest, back, abdomen, arms, and hands all failed to 

reveal any signs of injury, not even any redness. The pictures simply corroborated 

the un-rebutted testimony of both appellant’s accuser, DC, and the school nurse, HS, 

the latter being a neutral fact witness without any personal relationship to either DC 

or appellant. The pictures were “cumulative” with that evidence already admitted, 

evidence that was not in dispute, and any additional value they may have provided 

was “minimal.” Santos, 59 M.J. at 322. 
GUZMAN—20100020

16

LEGAL AND FACTUAL SUFFICIENCY OF APPELLANT’S ATTEMPTED RAPE 

CONVICTION (PRE-CLOSING ARGUMENT)

We next turn to the legal and factual sufficiency of appellant’s conviction for 

attempted rape in violation of Article 80, UCMJ. The focal point of appellant’s

argument is that the evidence is insufficient to establish, beyond a reasonable doubt, 

the specific intent to commit rape necessary to sustain an attempted rape conviction. 

Of note, the government, in its pleadings before this court, agrees with appellant, 

conceding that the evidence “is insufficient to prove that appellant had the requisite 

intent to penetrate DR’s vagina while she was incapable of resisting his force” and 

urges this court to “affirm a conviction for aggravated assault (assault with a force 

likely to produce death or grievous bodily harm) as an LIO [lesser included offense] 

of attempted rape.”9 Our review of the record, however, reveals sufficient evidence,

both legally and factually, to sustain appellant’s conviction for attempted rape. 

Therefore, we decline to accept the government’s concession.

Article 66(c), UCMJ, provides that a Court of Criminal Appeals “may affirm 

only such findings of guilty . . . as it finds correct in law and fact.” In performing 

our duty, we must conduct a de novo review of legal and factual sufficiency. United 

States v. Gilchrist, 61 M.J. 785, 793 (Army. Ct. Crim. App. 2005) (citing United 

States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002)). The test for legal

sufficiency 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. Lubasky, 68 M.J. 260, 263 (C.A.A.F.

2010) (citations omitted). The test for factual sufficiency is “whether, after 

weighing the evidence of record and making allowances for not having personally 

observed the witnesses, [this court is] convinced of appellant's guilt beyond a 

reasonable doubt.” Gilchrist, 61 M.J. at 793 (citing United States v. Turner, 25 M.J. 

324, 325 (C.M.A. 1987)). This review for factual sufficiency “involves a fresh, 

impartial look at the evidence, giving no deference to the decision of the trial court 

on factual sufficiency beyond the admonition in Article 66(c), UCMJ, to take into 

account the fact that the trial court saw and heard the witnesses.” Washington, 57 

M.J. at 399. “[T]o sustain appellant's conviction, we must find that the government 

has proven all essential elements and, taken together as a whole, the parcels of proof 

credibly and coherently demonstrate that appellant is guilty beyond a reasonable 

doubt.” Gilchrist, 61 M.J. at 793 (citing United States v. Roukis, 60 M.J. 925, 930 

(Army Ct. Crim. App. 2005)). 

 

9

The government’s concession before this court fails to expressly articulate whether 

the government is conceding based on legal insufficiency, factual insufficiency, or 

both. The government’s brief, however, leads to the conclusion that the concession 

is one based on factual insufficiency. 
GUZMAN—20100020

17

The charge of attempted rape in violation of Article 80, UCMJ required the 

government to prove: (1) that, at or near Fort Bliss, Texas, on or about 28 May 2009, 

appellant did certain overt acts, to wit: punch DR in the face and body and 

physically restrain her; (2) that the acts were done with the specific intent to commit 

the offense of rape; (3) that the acts amounted to more than mere preparation; and 

(4) that the act apparently tended to effect the commission of the intended offense. 

Manual for Courts-Martial, United States (2008 ed.) [hereinafter M.C.M.], pt. IV, 

¶4.b. That the offense of rape actually occurred or was completed is not required. 

However, the government must prove that, at the time of the overt acts, appellant 

intended every element of the offense of rape. The elements of rape (by force) are: 

(1) that, at or near Fort Bliss, Texas, on or about 28 May 2009, the appellant cause d

DR to engage in a sexual act; and (2) that appellant did so by using force against 

DR, to wit: punching DR in the face and body and physically restraining her. 

M.C.M., pt. IV, ¶45.b.(1)(a)(i). 

Drawing “every reasonable inference from the evidence of record in favor of 

the prosecution,” United States v. Blocker, 32 M.J. 281, 284 (C.M.A. 1991), we find 

the evidence of attempted rape legally sufficient. See e.g., United States v. Graves, 

47 M.J. 632 (Army Ct. Crim. App. 1997) (brutal assault upon victim and attempt to 

drag her into room where attacker prepared prussic handcuff knots strategically 

placed on the bed to render victim immobile and in a spread eagle position legally 

sufficient to sustain conviction); see also State v. Jackson, 62 Wash. App. 53 (Wash. 

Ct. App. 1991) (appellant convicted of attempted rape where he never touched the 

intended victim nor stated he intended to engage in sexual intercourse; “[t]he 

evidence relevant to Jackson’s intent and his taking a substantial step is that Jackson 

convinced Z to go into the bedroom, followed her into that room, and then 

approached her and ordered her to lift her skirt. From this evidence, a jury could 

reasonably have found beyond a reasonable doubt that Jackson intended to have 

sexual intercourse with Z, and that he took a substantial step toward s that goal.”)

(footnote omitted); State v. Arnold, 1 Kan. App. 2d 642 (Kan. Ct. App. 1977), rev’d 

on other grounds 576 P.2d 651 (Kan. 1978) (evidence sufficient to sustain attempted 

rape conviction where appellant knocked victim to the ground, had one hand on her 

neck and mouth, told victim to be quiet or he would kill her, and attempted to turn 

victim over from her curled position on the ground to her back; appellant left when 

victim commanded him to leave “in the name of Jesus”).

As was the court in Graves, we too “are satisfied that the members of the 

panel, who weighed this evidence using their common sense and knowledge of 

human nature and the ways of the world, reasonably found beyond a reasonable 

doubt all of the essential elements of proof, including specific intent, for attempted 

rape.” 

Turning to factual sufficiency, appellant relies primarily on United States v. 

Polk, 48 C.M.R. 993 (A.F.C.M.R. 1974). Appellant, in his brief, reads Polk too 
GUZMAN—20100020

18

broadly. Polk was decided on a failure of proof regarding the element of “without 

[the victim’s ] consent” and does not, contrary to the assertions in appellant’s brief, 

speak to the degree of force or actions necessary to sufficiently establish an 

accused’s intentions to engage in sexual intercourse or, in appellant’s case, a sexual 

act. 

Polk is a 1973 attempted rape prosecution applying the elements of Article 

120 of the UCMJ as found in the Manual for Courts-Martial, 1969 (Revised ed.). 

Polk, 48 C.M.R. at 996. Attempted rape in Polk required “that the accused intended 

to have sexual intercourse with the victim by force and without her consent.” Polk, 

48 C.M.R. at 997 (emphasis added). Sexual intercourse required penile penetration 

of “the woman.” The specific intent required for attempted rape under the 1969 

Manual for Courts-Martial was “‘a specific intent to have sexual intercourse with a 

woman not his wife by force and without her consent. The accused must have 

intended to overcome any resistance by force, actual or constructive, and to 

penetrate the woman's person. Any lesser intent will not suffice.’” Id. The quoted 

language from Polk and relied upon by appellant in his pleadings before this court is 

taken from paragraph 213f.(1)(c) of the 1969 Manual for Courts-Martial discussion 

regarding “Assault with intent to commit rape.” This same paragraph, however, goes 

on to state:

Indecent advances and importunities, however earnest, not accompanied 

by such an intent, do not constitute this offense, nor do mere 

preparations to rape not amounting to an assault. Thus, if a man, 

intending to rape a woman, conceals himself in her room to await a 

favorable opportunity to execute his design, but before the opportunity 

arises is discovered and flees, he is not guilty of an assault with intent 

to commit rape. 

No actual touching is necessary. If a man enters a woman's room and 

gets in the bed where she is for the purpose of raping her, he commits 

the offense under discussion although he does not touch the woman.

Id. (emphasis added). 

In Polk, the accused: unlawfully entered a dwelling; removed his clothes; 

entered the victim’s bed; “grabbed the victim by her throat and jaws with both 

hands;” restricted the victim’s movements by pressing down on her body with his 

chest; prevented the victim from moving the accused’s hands away from her neck; 

and then talked to the victim, stating in part that “‘[he] had never had a white 

woman before” and if she would let him have her, he would go away. Polk, 48 

C.M.R. at 995. While the accused and victim in Polk continued to talk, the accused 

never removed his hand from the victim’s throat. The accused also: never 
GUZMAN—20100020

19

attempted to fondle the victim; never attempted to kiss the victim; and never struck 

the victim or attempted to injure her “in any way.” Polk, 48 C.M.R. at 995. 

Before finding the evidence factually insufficient to support an attempted rape

conviction, the Polk court noted:

The intention of the accused in the case must be inferred 

from all of the circumstantial evidence surrounding the 

offenses, that is, from the acts done and the things said at 

the time. No pretrial statement or testimony of the accused 

was presented to directly show his intent. The 

circumstances unquestionably establish that at the least 

the accused intended to gratify his lust and sexual desires 

by having sexual intercourse with the victim, and that he 

unlawfully entered her home for that purpose.

48 C.M.R. at 996 (emphasis added). 

In finding a failure of proof on the element of “without her consent,” the Polk

court noted: 

His very first words to the victim were in essence a 

disavowal of any intention to inflict serious harm to her 

and an effort to calm her fears. Indeed, moments after her 

initial fright, the victim realized that she was not being 

harmed in any way and that she would be able to reason 

intelligently with the accused. His conversation and 

actions from that point amounted to nothing more than an 

atrocious and gross attempt to persuade the victim to 

consent to intercourse. It may well be that no reasonable 

man could expect to accomplish a seduction in the manner

undertaken by the accused, but that is not the point. The 

fact is that the evidence does not show that the accused 

intended to have intercourse with the victim without her 

permission and assent.

Id. at 997 (emphasis added). Finally, in reaching its decision the Polk court took 

note of the following: the accused’s “desistance” upon the victim’s refusal to 

consent; “a singular absence of the application of force and brutality by the accused 

to accomplish his sexual desires;” the absence of any effort by appellant to remove 

the blanket that covered his victim; and the absence of any sexual foreplay. Id. 

The case at bar is distinguishable from Polk. Appellant was tried applying the 

elements of rape found in Article 120 of the UCMJ as amended in 2007. See 10 

U.S.C. § 920(b)(1)(a) (2006 & Supp. II 2008). The specific intent in appellant’s 
GUZMAN—20100020

20

case is a specific intent to “engage in a sexual act . . . by using force.” Sexual act is 

defined as:

(A) contact between the penis and the vulva, and for 

purposes of this subparagraph contact involving the penis 

occurs upon penetration, however slight; or

(B) the penetration, however slight, of the genital opening 

of another by a hand or finger or by any object, with an 

intent to abuse, humiliate, harass, or degrade any person 

or to arouse or gratify the sexual desire of any person. 

M.C.M., pt. IV, ¶45.a.(t)(1). In Polk, digital penetration of “the woman” failed to 

meet the definition of intercourse under the 1969 version of Article 120, UCMJ. In 

contrast, digital penetration is sufficient, “however slight,” to meet the definition of 

sexual act sufficient for attempted rape as charged in appellant’s case. Next, unlike 

Polk where the accused only made contact with the victim’s neck and jaw, the 

appellant straddled his victim and moved his hand from above her navel to below the 

navel, towards her crotch. In Polk, the accused eventually left the victim’s bedroom 

when asked. Appellant only left DR’s room after she was able to remove the mask 

covering his face and reveal his identity. In Polk the accused never struck his victim 

or injured her whereas appellant beat his victim in an effort to subdue her, causing 

injuries to her face and eye. Unlike the accused in Polk, appellant, by all accounts, 

removed the blanket covering DR, exposing her bare breasts. The victim in Polk 

remained covered throughout the accused’s presence. 

Finally, the accused in Polk did not provide a pretrial statement nor did he 

testify at his trial, leaving the trier of fact to infer Sergeant Polk’s intent “from all of 

the circumstantial evidence surrounding the offenses, that is, from the acts done and 

the things said at the time.” No such limitation exists in appellant’s case as 

appellant chose to take the stand, using his time on the stand to spin a yarn of 

incredible proportions. To say appellant’s testimony strains credulity is an 

understatement. Scientific evidence, specifically pink fibers found on male sweat 

pants in appellant’s home and DNA evidence found on a glove in DR’s bedroom, 

places appellant on top of DR in her bedroom. Appellant’s explanation for the glove 

with his DNA is that someone must have taken the glove from his garbage and 

placed it in the bedroom. Appellant hints at the possibility that DR or her husband 

placed the glove in the bedroom; however, the motive for either DR or DR’s husband 

to falsely accuse appellant of attempted rape is non-existent. When asked by his 

trial defense counsel to explain why he called his squad leader and said he “fucked 

up,” appellant stated: “I was talking about going AWOL, sir.” When asked by his 

trial defense counsel if his statement related to him assaulting anyone, tying to rape 

anyone, or breaking into someone’s home, appellant replied to all three in the 

negative. Appellant then went on to deny assaulting DR or breaking into her home 
GUZMAN—20100020

21

on 28 May 2009. Appellant ended his direct testimony by also denying any assault 

upon DC. 

Appellant’s contends there is “no evidence presented demonstrating the 

alleged victim’s attacker possessed the specific intent to rape.” Both the appellant’s 

brief as well as the appellee’s brief rely extensively on Polk to compare appellants’ 

actions to those of Sergeant Polk. As already noted, Polk is a case decided on a

failure of proof on the element of “without consent.” Factually, Polk differs 

significantly from appellants’ case. Lastly, unlike Sergeant Polk, appellant testified 

on the merits. Appellant himself, by deciding to testify, provided direct evidence of 

the assault upon DR, the intent to rape DR, and the unlawful entry into DR’s home. 

As this court recently noted: 

the panel in appellant's case was free to disbelieve 

appellant's testimony and free to consider that testimony 

as substantive evidence of guilt. “A trier of fact is not 

compelled to accept and believe the self serving stories of 

vitally interested defendants. Their evidence may not only 

be disbelieved, but from the totality of the circumstances, 

including the manner in which they testify, a contrary 

conclusion may be properly drawn.” United States v. 

Cisneros, 448 F.2d 298, 305–06 (9th Cir. 1971) (citing 

Dyer v. MacDougall, 201 F.2d 265, 268 (2d Cir. 1952)).

United States v. Pleasant, 71 M.J. 709, 714 (Army Ct. Crim. App. 2012) pet. denied

73 M.J. 385 (C.A.A.F. 2013). 

When an accused testifies on his own behalf, he does so at 

his own peril, risking that he might fill in gaps or provide 

affirmative evidence contributing to or resulting in his 

conviction. As the Supreme Court early established, a trier 

of fact necessarily assesses the veracity of an accused's 

testimony and considers it when resolving questions of 

guilt or innocence:

“Nor can there be any question that, if the jury were 

satisfied, from the evidence, that false statements in the 

case were made by defendant, or on his behalf, at his 

instigation, they had the right, not only to take such 

statements into consideration, in connection with all the 

other circumstances of the case, in determining whether or 

not defendant's conduct had been satisfactorily explained 

by him upon the theory of his innocence, but also to 

regard false statements in explanation or defense, made or 
GUZMAN—20100020

22

procured to be made, as in themselves tending to show 

guilt. The destruction, suppression, or fabrication of 

evidence undoubtedly gives rise to a presumption of guilt, 

to be dealt with by the jury.”

Pleasant, 71 M.J. at 712-13 (quoting Wilson v. United States, 162 U.S. 613, 620–21, 

16 S.Ct. 895, 40 L.Ed. 1090 (1896)).

As the Air Force court noted in Polk, intent must be determined based on the 

totality of the circumstances. Polk, 48 C.M.R. at 996. Cf. United States v. Webb, 38 

M.J. 62, 69 (C.M.A.1993) (in case of housebreaking with intent to “peep,” intent 

may be inferred from totality of circumstances to include “nature, time, or place of” 

appellant’s “acts before and during” the crime alleged) (quoting Goldman v. 

Anderson, 625 F.2d 135, 137 (6th Cir. 1980)). “Intent is a state of mind difficult of 

proof by direct evidence. It may, however, be established by circumstantial 

evidence and by inferences reasonably to be drawn from the conduct of the 

defendant and from all the attendant circumstances in the light of human behavior 

and experience.” State v. Casady, 491 N.W.2d 782, 787 (Iowa 1992). “[A 

defendant] will generally not admit later to having the intention which the crime 

requires . . . his thoughts must be gathered from his words (if any) and actions in 

light of surrounding circumstances.” State v. Radeke, 444 N.W.2d 476, 478–79 

(Iowa 1989) (quoting W. La Fave & A. Scott, Handbook on Criminal Law § 3.5(f), at 

226 (2d ed. 1986) (brackets in original)). 

The military judge, consistent with the standard instruction in the Military 

Judges’ Benchbook and consistent with our precedent, as well as federal and state 

law precedent, instructed the panel members as follows:

I have instructed you that the accused’s specific intent to 

commit rape for the offense of attempted rape, and the 

accused’s specific intent to commit assault consummated 

by a battery, for the offense of housebreaking, must be 

proved beyond a reasonable doubt. Direct evidence of 

intent is often unavailable. The accused’s intent, 

however, may be proved by circumstantial evidence. In 

deciding this evidence, you must consider all relevant 

facts and circumstances as shown by the evidence in this 

case, as you recall it. 

See Dep't of Army, Pam. 27–9, Legal Services: Military Judges' Benchbook, para. 7-

3 (Note 2) (1 Jan. 2010).

Considering the entire record, to include the appellate pleadings as well as the 

matters personally submitted by appellant pursuant to United States v. Grostefon, 12 
GUZMAN—20100020

23

M.J. 431 (C.M.A. 1982), we are convinced beyond a reasonable doubt that appellant 

intended to rape DR on 28 May 2009 and that he is guilty of attempted rape. As 

such, we find the evidence factually sufficient. We specifically find the evidence, 

exclusive of appellants’ testimony on the merits, factually sufficient to support his 

conviction for attempted rape. Any doubt that may have existed without 

consideration of appellant’s merit’s testimony is fully dispelled by the fanciful and 

incredible story he attempted to sell the panel, thus providing them with evidence

related to his assault of DR, his intent to rape DR, and his unlawful entry of DR’s 

home.10

LEGAL AND FACTUAL SUFFICIENCY OF APPELLANT’S ATTEMPTED RAPE 

CONVICTION (POST-CLOSING ARGUMENTS)

Having found the evidence legally and factually sufficient, a finding by this 

court without regard to the government’s closing argument in this case, we next 

address what impact, if any, trial counsel’s rebuttal argument has on our decision. 

For the reasons noted below, our legal and factual sufficiency determinations are 

unchanged.

Prior to allowing counsel to argue, the military judge advised the panel 

members, in part, as follows:

The law presumes the accused to be innocent of the 

charges against him and they are before you for your 

consideration. You will hear now an exposition of the 

facts for counsel for both sides as they view them. Bear in 

mind that the arguments of counsel are not evidence. 

Argument is made my (sic) counsel in order to assist you 

in understanding and evaluating the evidence but you must 

base your determination of the issues in this case on the 

evidence as you remember it and apply the law as I will 

instruct you. As the government has the burden of proof, 

trial counsel may open and close. 

 

10 The fact that the government chose to allege a battery as the intended criminal 

offense in support of the housebreaking charge instead of rape, while curious, does 

not change our decision regarding the sufficiency of the evidence in support of the 

attempted rape conviction. We note that the housebreaking charge was preferred on

2 July 2009 whereas the attempted rape, an “additional charge ,” was preferred on 24 

September 2009. The passage of time and additional investigation is one possible 

and plausible explanation for the different pleadings; however, we need not decide 

why the intended crimes differ between housebreaking and attempt ed rape. 
GUZMAN—20100020

24

The trial counsel’s primary argument was uneventful and otherwise 

unobjectionable. It spanned nine pages of a 932-page record, was approximately 

1940 words in length, was un-objected to by the trial defense counsel, and resulted 

in no interruptions by the military judge. 

The trial defense counsel’s closing argument, consistent with his opening 

statement, stayed with the defense theme that appellant was not the individual that 

attacked and attempted to rape DR on 28 May 2009. The argument covered 29 pages 

of the record, was approximately 6,780 words in length, and was interrupted three 

times by government objection as well as three times by the military judge, the latter 

interruptions unrelated to the government’s objections. Of note, two of the 

government’s objections were “facts not in evidence” and the third was “improper 

argument.” The military judge overruled all three. The military judge’s sua sponte 

interruptions of trial defense counsel’s argument were to advise the trial defense 

counsel of both the irrelevance and impropriety of expressing the trial defense 

counsel’s personal views, thoughts, or opinions in closing argument. 

The government’s rebuttal argument spanned eight pages, consisted of 

approximately 1965 words, and, like their main argument, was made without 

objection by trial defense counsel or interruption by the military judge. At issue, 

and relevant to the sufficiency issue discussed earlier, are eight words spoken by the 

trial counsel near the close of the rebuttal argument. Trial counsel stated, inter alia: 

“[h]e lifted up his hand and reached his hand down. Pulled out his penis; pulled her 

shorts down. This act was going to happen.” The italicized language, argued as 

error on appeal, was neither objected to nor resulted in any curative instruction by 

the military judge. All parties agree, and a review of the record confirms that there 

was no evidence presented that DR’s attacker either pulled out his penis or pulled 

down DR’s shorts during the 28 May 2009 attack.

After closing argument by counsel and at the close of the substantive and 

procedural instructions, the military judge advised the members they would be 

provided a written copy of the instructions for their use during deliberations. A 

review of Appellate Exhibit XXXIX of the record of trial, entitled “Findings 

Instructions – US v. Guzman” confirms that the prefatory instruction, verbally 

provided by the military judge advising members that argument by counsel is not 

evidence, was also provided to them in writing prior to their deliberation on 

findings. In addition to instructing the members that argument of counsel was not 

evidence, the military judge also specifically instructed the members that, with 

regard to the intent necessary to convict for attempted rape and housebreaking, the 

members “must consider all relevant facts and circumstances as shown by the 

evidence in this case, as [they] recall it.” This instruction came after counsels’ 

argument. 
GUZMAN—20100020

25

A court-martial panel must reach its decision “based only on the facts in 

evidence.” United States v. Fletcher, 62 M.J. 175, 183 (C.A.A.F. 2005) (citing 

United States v. Bouie, 9 C.M.A. 228, 233, 26 C.M.R. 8, 13 (1958)). Arguments by 

counsel are not evidence. United States v. Clifton, 15 M.J. 26, 29 (C.M.A. 1983). 

Trial counsel inserted into appellants’ case facts not in evidence when he a rgued 

“[appellant] Pulled out his penis; pulled her shorts down.” The statement before the 

italicized language, “[h]e lifted up his hand and reached his hand down,” is 

supported by the record and the statement following, “[t]his act was going to 

happen,” is “reasonable comment on the evidence.” See R.C.M. 919(b); see also

United States v. Paige, 67 M.J. 442, 448 (C.A.A.F. 2009). Notwithstanding the 

absence of any evidence of record to support the “penis . . . shorts down” argument, 

trial defense counsel did not object. Therefore, we examine trial counsel’s argument 

for plain error. United States v. Halpin, 71 M.J. 477, 479 (C.A.A.F. 2013); United 

States v. Schroeder, 65 M.J. 49, 58-59 (C.A.A.F. 2007); see also R.C.M. 919(c). 

To prevail under a plain error analysis, appellant must show that: “‘(1) there 

was an error; (2) it was plain or obvious; and (3) the error materially prejudiced a 

substantial right.’” United States v. Erickson, 65 M.J. 221, 223 (C.A.A.F. 2007) 

(citations omitted). Trial counsel’s argument was error and it was plain or obvious. 

The issue to be resolved is whether, considering the totality of the circumstances, 

the error materially prejudiced a substantial right of the appellant. As our superior 

court noted in United States v. Fletcher, “in assessing prejudice, we look at the 

cumulative impact of any prosecutorial misconduct on the accused’s substantial 

rights and the fairness and integrity of his trial.” 62 M.J. 175, 184 (C.A.A.F. 2005). 

The courts look to three factors to assess prejudice: “(1) the severity of the 

misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of 

the evidence supporting the conviction.” Id. Considering the totality of the 

circumstances, can we be “confident that the members convicted [appellant] on the 

basis of the evidence alone.” Fletcher, 62 M.J. at 185. 

Applying the factors we find that appellant suffered no material prejudice as a 

result of trial counsel’s improper argument. Considering factor 1, “the severity of 

the misconduct,” the evidence establishes that the misconduct is not severe. Of the 

near 17 pages of government argument and near 4,000 words spoken, the trial 

counsel, for reasons unclear in the record, inserted facts not in evidence into the 

argument with a mere eight words. That said, the trial counsel spoke the words only 

once, the words were not inflammatory, and, provided the panel members followed 

the military judges oral and written instructions, the panel members would rely on 

their recollection of the evidence instead of that summarized by the trial counsel. 

Nothing in the record leads us to believe that the panel members did anything but 

follow the military judge’s oral and written instructions. See United States v. 

Jenkins, 54 M.J. 12, 20 (C.A.A.F. 2000) (panel members are presumed to follow a 

military judge's instructions). Factor two, “measures adopted to cure the 

misconduct” favors appellant in that the military judge failed to take any action to 
GUZMAN—20100020

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correct the improper argument. Factor 3, “the weight of the evidence supporting the 

conviction,” for the reasons previously noted, favors the government. 

As noted previously, any doubt whatsoever regarding appellant’s guilt after 

the government’s case was unquestionably dispelled following appellant’s merits 

testimony and long before closing arguments. We are confident, beyond any doubt, 

that the panel convicted appellant on the basis of the evidence alone. 

POST-TRIAL DELAY

Appellant alleges, in his supplemental pleadings before this court, that the 

dilatory post-trial processing of his case warrants relief under United States v. 

Moreno, 63 M.J. 129 (C.A.A.F. 2006) and United States v. Collazo, 53 M.J. 721 

(Army Ct. Crim. App. 2000). 

“Due process entitles convicted servicemembers to a timely review and appeal 

of court-martial convictions.” United States v. Arias, 72 M.J. 501, 504 (Army Ct. 

Crim. App. 2013) (citations omitted). In Arias, this court summed up the standards 

established by our higher court in Moreno in assessing whether any delay rises to the 

level of a due process violation and how those standards are evaluated in light of the 

Supreme Court’s decision in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 

L.Ed.2d 101 (1972). 

[T]he timeliness of post-trial processing focuses on three 

distinct phases of the process: the time from completion of 

the trial until initial action (Phase I); the time between 

initial action on the case and docketing of the record of 

trial by the service Court of Criminal Appeals (CCA) 

(Phase II); and the time from docketing of the record of 

trial until completion of appellate review and rendering of 

a decision by the CCA (Phase III). Moreno, 63 M.J. at 

142. The Moreno Court established post-trial processing 

standards for all three phases which, if exceeded, result in 

presumptively unreasonable post-trial delay: Phase I–120 

days; Phase II–30 days; and Phase III–18 months. Id.

Whether the post-trial processing rises to the level of a 

due process violation, however, hinges on application and 

analysis of the four factors articulated in Barker v. Wingo:

“(1) the length of the delay; (2) the reasons for the delay; 

(3) the appellant's assertion of the right to timely review 

and appeal; and (4) prejudice,” with no one factor being 

dispositive. Moreno, 63 M.J. at 135–136. In assessing the 

fourth factor of prejudice, the Moreno Court cited to three 

sub-factors: “(1) prevention of oppressive incarceration 
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pending appeal; (2) minimization of anxiety and concern 

of those convicted awaiting the outcome of their appeals; 

and (3) limitation of the possibility that a convicted 

person's grounds for appeal, and his or her defenses in 

case of reversal and retrial, might be impaired.” Id. at 

138–39 (quoting Rheuark v. Shaw, 628 F.2d 297, 303 n.8 

(5th Cir. 1980)). “[T]he appropriate test for the military 

justice system is to require an appellant to show 

particularized anxiety or concern that is distinguishable 

from the normal anxiety experienced by prisoners awaiting 

an appellate decision.” Id. at 140.

Arias, 72 M.J. at 504-05. If the above analysis results in a finding of a due process 

violation, relief is warranted unless “we are convinced beyond a reasonable doubt 

that the constitutional error is harmless beyond a reasonable doubt.” United States 

v. Luke, 69 M.J. 309, 321 (C.A.A.F. 2011). 

A review of the post-trial processing timeline of appellant’s case reveals a 

presumptively unreasonable delay for both Phase I and Phase III processing in that 

they exceeded 120 days and 18 months respectively. Therefore, Barker v. Wingo

factor 1, length of delay, favors appellant. Factor 2 also favors appellant in that the 

record is silent regarding any reasons for the delay. Factor 3 likewise favors 

appellant in that he twice demanded, via motions granted by this court, expedited 

review of his appeal. 

Review of factor 4 under Barker v. Wingo, prejudice, requires review of the 

three sub-factors articulated in Moreno: “(1) prevention of oppressive incarceration 

pending appeal; (2) minimization of anxiety and concern of those convicted awaiting 

the outcome of their appeals; and (3) limitation of the possibility that a convicted 

person's grounds for appeal, and his or her defenses in case of reversal and retrial, 

might be impaired.” Moreno, 63 M.J. at 138–39 (quoting Rheuark 628 F.2d at 303 

n.8). 

Considering Defense Appellate Exhibit C (DAE C), appellant’s declaration 

under penalty of perjury, and appellate counsel’s supplemental pleadings related to 

post-trial delay, we find that sub-factors 1, “prevention of oppressive incarceration 

pending appeal,” and sub-factor 3, “limitation of the possibility that a convicted 

person's grounds for appeal, and his or her defenses in case of reversal and retrial, 

might be impaired,” favor the government in that appellants argument in support of 

both rely on the mistaken belief that he is entitled a sentence rehearing because of 

the legal and factual insufficiency of his attempted rape conviction. In other words, 

because the government conceded sufficiency of appellant’s conviction, it is argued 

that appellant should be released, and every day that goes by, he is subjected to 

oppressive incarceration, and his case, in the event of a retrial, might be impaired. 
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Appellant’s argument is premised on this court’s acceptance of the government’s 

concession on the legal and factual sufficiency of appellant’s attempted rape 

conviction, a concession we have rejected. 

We next look at Moreno sub-factor 2, “minimization of anxiety and concern 

of those convicted awaiting the outcome of their appeals,” in assessing prejudice.

Assuming arguendo appellant’s anxiety increased upon receipt of the government 

pleadings wherein they conceded legal and factual sufficiency of the most serious 

charge in appellant’s case, the attempted rape, appellant fails to show how this 

increased anxiety is “particularized anxiety or concern that is distinguishable from 

the normal anxiety experienced by prisoners awaiting an appellate decision. ” 

Moreno, 63 M.J. at 140. We find that appellant’s increased anxiety, as articulated in 

DAE C, anxiety based on an erroneous belief that somehow this court, or any 

appellate court, is bound by a government concession is not that degree or type of 

“anxiety or concern that is distinguishable from the normal anxiety experienced by 

prisoners awaiting an appellate decision.” Assuming arguendo appellant meets 

Moreno sub-factor 2, we find, considering all three Moreno sub-factors, no prejudice 

to appellant in the post-trial processing of his case. 

Considering Barker’s four factor analysis as modified by Moreno’s three subfactors to assess prejudice, we find no due process violation in the post-trial 

processing of appellant’s case. We further find that “the post-trial processing of 

appellant's case was not ‘so egregious that tolerating it would adversely affect the 

public's perception of the fairness and integrity of the military justice system.” 

Arias, 72 M.J. at 507 (quoting United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F.

2006)). 

Assuming arguendo that the anxiety suffered by appellant as noted in DAE C 

is sufficient to establish prejudice and further assuming that the delay in appellant’s 

case rises to the level of a due process violation, we find that the violation is 

harmless beyond a reasonable doubt. See e.g., United States v. Luke, 69 M.J. 309,

321 (C.A.A.F. 2011) (assuming error, over eleven year delay between completion of 

appellant’s court-martial and issuance of the service court’s decision found harmless 

beyond a reasonable doubt); United States v. Bush, 68 M.J. 96, (C.A.A.F. 2009) 

(seven year delay in docketing case at service court was harmless beyond a 

reasonable doubt); United States v. Allende, 66 M.J. 142, 145 (C.A.A.F. 2008) (court 

assumed due process violation however found seven years between sentencing and 

completion of review harmless); United States v. Harrow, 65 M.J. 190, 206 

(C.A.A.F. 2007) (1,467 days between sentencing and completion of review harmless 

beyond a reasonable doubt); United States v. Canchola, 64 M.J. 245, 246-47 

(C.A.A.F. 2007) (no due process violation with 783 days between sentencing and 

action); United States v. Haney, 64 M.J. 101, 107 (C.A.A.F. 2006) (finding due 

process violation but no prejudice with seven years between sentencing and 

completion of review); United States v. Gosser, 64 M.J. 93, 97-99 (C.A.A.F. 2006) 
GUZMAN—20100020

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(548 days between sentencing and action violated appellant’s due process right to 

speedy review but violation was harmless); United States v. Finch, 64 M.J. 118, 125 

(C.A.A.F. 2006) (assuming due process violation, 381 days between sentencing and 

action was harmless beyond a reasonable doubt); see also United States v. 

Rodriguez-Rivera, 63 M.J. 372, 386 (C.A.A.F. 2006) (no additional relief warranted 

in case delayed over six years between sentencing and completion of revi ew where, 

despite due process violation, “to fashion relief that would be actual and meaningful 

. . . would be disproportionate to the possible harm generated from the delay”).

Finally, we turn to our obligation to ensure sentence appropriateness 

considering the overall post-trial processing of appellant’s case. See Article 66(c), 

UCMJ. “Article 66(c), UCMJ, requires this court to assess the appropriateness of 

appellant's sentence in light of any dilatory post-trial processing of his case. . . . 

Article 66(c), UCMJ, also empowers this court to grant relief when there has been 

unreasonable post-trial processing, notwithstanding the absence of actual prejudice. ” 

Arias, 72 M.J. at 507 (citations omitted). 

Having considered the entire record, Moreno's Phase I, II, and III standards 

and the presumptions therein, the lack of any documented explanation or 

justification by the government for the post-trial processing of appellant's case, the 

particular facts and circumstances of this case to include appellant’s declaration 

under penalty of perjury and multiple demands for expedited appellate review, we 

find the sentence approved by the convening authority appropriate.

CONCLUSION

On consideration of the entire record, the assigned errors, the allegations 

raised by appellant pursuant to United States v. Grostefon, and the briefs submitted 

by the parties, we conclude the findings of guilty and the sentence, as approved by 

the convening authority, are correct in law and fact. Accordingly, the findings of 

guilty and the sentence are AFFIRMED. 

Senior Judge KERN and Judge MARTIN concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

MALCOLM H. SQUIRES, JR. 

Clerk of Court

FOR THE COURT:
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Appendix

Date Event Day

 14 Jan 10 Announcement of Sentence/Completion of Trial 1

 20 Jan 10 Appellant Requests Deferment 7

 18 Feb 10 Convening Authority Approves Deferment Request 36

 24 May 10 Record of Trial to Defense Counsel for Errata Review 131

 21 Jun 10 Defense Counsel Completes Errata Review 159

 7 Jul 10 Military Judge Authenticates the Record of Trial 175

 15 Sep 10 Authenticated Record of Trial Received by Appellant 245

 25 Sep 10 Additional 20 Days to Submit Post-Trial Matters Requested 255

 15 Oct 10 Post-Trial Matters Submitted by Appellant 275

 7 Dec 10 Initial Action Taken by the Convening Authority 328

 14 Dec 10 Army Court of Criminal Appeals Receives Appellant’s Record 335

 31 Jan 11 Defense Appellate Division – 1

st Extension Granted 383

 2 May 11 Defense Appellate Division – 2d Extension Granted 475

 11 Aug 11 Defense Appellate Division – 3d Extension Granted 576

 6 Sep 11 Defense Appellate Division – 4th Extension Granted 602

 3 Oct 11 Defense Appellate Division – 5th Extension Granted 627

 9 Nov 11 Brief on Behalf of Appellant Submitted 664

 9 Nov 11 Motion to Attach Defense Appellate Exhibits A and B 

Submitted 

664

 17 Nov 11 Motion to Attach Defense Appellate Exhibits A and B Granted 672

 5 Dec 11 Government Appellate Division – 1

st Extension Granted 690

 9 Mar 12 Government Appellate Division – 2d Extension Granted 785

 6 Jun 12 Brief on Behalf of Appellee Submitted 874

 12 Jul 12 Reply Brief on Behalf of Appellant Submitted 910

 6 Nov 12 Motion to Attach Additional Grostefon Matters Submitted 1027

 13 Nov 12 Motion to Attach Additional Grostefon Matters Granted 1034

 7 May 13 Motion for Expedited Review Submitted 1209

 7 May 13 Motion to Attach Defense Appellate Exhibit C Submitted 1209

 13 May 13 Motion for Expedited Review Granted 1215

 13 May 13 Motion to Attach Defense Appellate Exhibit C Granted 1215

 3 Jun 13 Motion to Substitute Defense Appellate Exhibit C Submitted 1236

 6 Jun 13 Motion to Substitute Defense Appellate Exhibit C Granted 1239

 22 Jul 13 Motion to File Supplemental Assignment of Error Out of Time 

and Request for Expedited Review Submitted

1285

 22 Jul 13 Supplemental Assignment of Error Submitted 1285

 23 Jul 13 Motion to File Supplemental Assignment of Error Out of Time 

and Request for Expedited Review Granted

1286

 2 Aug 13 Supplemental Brief on Behalf of Appellee 1296

 20 Sep 13 ------------------------------------------------- 1345
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