This opinion is subject to administrative correction before final disposition.

Before CRISFIELD, GASTON , and STEWART Appellate Military Judges

_________________________ 

### UNITED STATES Appellee

v.

J ames A. HALE III Staff Sergeant (E

- 6 ), U.S. Marine Corps Appellant

No. 20 1600015

Decided: 5 October 2020
Appeal from the United States Navy

- Marine Corps Trial Judiciary
Military Judges : J ohn L. Ferriter (arraignment) M atthew J. Kent ( motions and trial)
Sentence adjudged 14 November 2018 by a general court

- martial convened at Elmendorf Air Force Base, Alaska , consisting of officer and

en listed members. Sentence approved by the convening authority: reduction to E

- 1, forfeiture of all pay and allowances, confinement for 2 5
years, and a dishonorable discharge

. For Appellant: Lieutenant Commander Jeremy J. Wall
, JAGC, US N
For Appellee: Lie utenant Kevin G. Edwards II , JAGC, USN Lieutenant Commander Timothy C. Ceder, JAGC, USN

Senior Judge GASTON delivered the opini on of the Court, in which Chief Judge Emeritus CRISFIELD and Judge STEWART joined.United States v. Hale, NMCCA No 201600015 Opinion of the Court

2 _________________________
This opinion does no t serve as binding precedent, but may be cited as persuasive authority under

NMCCA Ru le of Appellate Procedure 30.2.

_________________________

GASTON
, Senior Judge:
This case is before us a second time. At his first general court

- martial
, Appellant was fou nd guilty of various offenses and sentenced to reduction to E

- 1, forfeiture of all pay and allowances, confinement for 26 years, and a dishonorable discharge. On appeal, we held that his trial defense counsel’s undisclosed conflicts of interest deprived hi m of the effective assistance ofcounsel, and we set aside the findings and sentence and authorized a rehearing. United States v. Hale , 76 M.J. 713 (N

- M. Ct. Crim. App. 2017). At his second trial, Appellant was found guilty
, pursuant to his pleas, of viola tion of a lawful general order and wrongful use of an anabolic steroid in violation of Articles 92 and 112a, Uniform Code of Military Justice [UCMJ], 10 U.S.C. §§ 892, 912a (201 2 ) . He was additionally found guilty
, contrary to his pleas, of rape, aggravate d assault, adultery, kidnapping, and indecent language in violation of Articles 120, 128, and 134, UCMJ.
He now asserts two assignments of error [ AOE s ] : (1) the military judge erred by not suppressing evidence obtained from the search of Appellant’s
gym bag and subsequent urinalysis ; and (2) the evidence is factually insufficient to su stain Appellant’s convictions for the offenses to which he pleaded not guilty

. We find no prejudicial error and affirm.



### I. B ACKGROUND

W hile assigned to recruiting dut y in An cho rage, Alaska
, Appellant became involved with a prostitute, Ms. “ Kelly ,” 1 whom he met on line
, texted and talked with on the phone
, and e ventually met in person

. Ms. Kelly provided the following testimony a t trial . O n an afternoon in late

- August 2013 , Appell ant picked her up in his truck and took her to buy illegal drugs

— i.e., painkillers

— for him

. He then dropped her off , and s he used the money

1 All names in this opinion, other than those of the judges and counsel, are pseudonyms.United States v. Hale, NMCCA No 201600015 Opinion of the Court

3 she gained during the transaction to purchase and use crack cocaine. H e picked her up again later that night and gav e her money to buy more p ainkillers for him
, but this time he was unhappy with the pills she brought back. W hen the dealer she bought them from was unwilling to provide a refund, Appellant became angry
, pulled a black hand gun out of the center

- console

area of his truck, pointed it at Ms. Kelly
, and drove to a secluded area, where he had her empty her pockets and t ake her clothes off and forced her to perf orm oral sex on him

. He then placed the gun on the dashboard and vaginally rape d her across the front se ats of his truck with h er head toward the passenger door
, such that she could feel the seatbelt buckler scra ping against her lower back. A fter he ejaculated, h e had her put her clothes back

on , put her out of the truck , said something to the effect of “ W el come to the HIV world, whore, ” and then drove off, keeping her phone and identification. Ms. Kelly ran to a nearby house
, where
, c rying and disoriented , s he told the residents she had been attacked by a sex client who hit her on the head with a gun
, took h er money and phone , and shoved her out of his vehicle. While s he did not say s he was raped or forced to have sex, she said he told her he had AIDS when he was penetrating her

. The residents of the house helped her get a taxicab back to the women’s shelter where she had been living for over two years, having had her stay extended longer than the usual resident’s. Once there, s he appeared visibly shaken as she reported to a staff member that she had been assaulted and raped

. The staff member encouraged her to call the police. The following day, Ms. Kelly report ed what happened to the Anchorage Police Department [APD] , describing Appellant as a “buff” Marine named “Jay” with whom she had texted and talked on the phone before meeting in
person

. An admitted prost itute and drug user, Ms. Kelly testified at trial that she did not call the police immediately after the assault because they had not been helpful to her in the past. Not wanting to get herself in trouble, s he did not initially mention the drug transaction s in her account of Appellant kidnapping and raping her at gunpoint , which was otherwise substantially consistent with how she later testified at trial

. After her police interview, s he underwent a sexual assault forensic examination [SAFE] , which noted no vaginal injur ies but did document and photograph scratch marks on the lower left side of her back that were consistent with being scraped by a seatbelt buckler

. S wabs collected from her vagina and cervix later tested positive for semen that was a match for Appellant’s DNA.
A month later
, the APD identified Appellant through phone records and surveillance video from a store Ms. Kelly had visited with him
, and apprehended him at a local gym

. Before leaving the gym, Appellant notified t he arresting officers ab out a gym bag he had placed in one of the gym locker s

.United States v. Hale, NMCCA No 201600015 Opinion of the Court

4 He requested that the officers access the bag and get his truck keys
, so that the door locks to his truck would not be damaged when it was towed to the APD station

. One of the officer s retrieved the gy m bag, got the truck keys out of it
, and put it in the trunk of his patrol car without further searching it

. Appellant was then taken to the APD station , where he was turned over to a police detective along with his truck keys, phone, and gym bag

. During his interrogation, a fter waiving his rights , Appellant gave the following account to the APD detective . H e got in touch with Ms. Kelly through

an online site list ing her as a prostitute , and t hey texted a few times and talked on the phone . When they eventu ally agreed to meet in person for sex
, h e picked her up in his truck and gave her the money , but s he started talking about drugs and then said she was too busy to have sex and would have to meet him later , so he dropped her off . He picked her up again late r that night
, and she directed him to a location where they had sexual intercourse across the front seats of his truck

. A s they were getting ready to hav e sex, he pulled a loaded .40

- caliber Beretta handgun out from between the front seats and moved it to the dashboard to get it out of the way . He did not point the gun at Ms. Kel ly, threaten her with it, or forc e her to have sex , and had never pointed a weapon at anybody or done anything like that. When he ejaculated during intercourse, his condom broke , wh ich upset Ms. Kelly and she tried to increase her fee

. When h e refused to pay her more money , she threatened to tell everyone at his recruiting office about what happened

. A t that point he told her to get out of his truck
, drove off , and later threw her be longings out the window. Appellant stated that he occasionally used painkill ers that were prescribed to him and previously used certain steroids before they became il legal
, but not during his time in the Marine Corps

. A fter Appellant ’s interrogation , the A PD d etective immediately went and obtain ed warrants from a local magistrate to search Appellant’s cell ular phone (for text messages and other evidence pertaining to Ms. Kelly)
, person (for his DNA and truck keys), and truck (for the gun
, Ms. Kelly’s belong ings, and evidence of sexual intercourse )

. T he detective did not obtain a warrant to search Appellant’s gym bag. When the detective returned to the interrogation
room, A ppellant told him the cell phone he had used to communicate with Ms. Kelly was at his a partment . The d etective then said he would need to get th e phone from Appellant’s apartment and offer ed to give Appellant a ride there to retrieve the phone , which Appellant a ccepted

. T he detective then return ed Appellant ’s gym bag to him . B ut because Appe llant would be (a) waiting in the lobby until they left the police station and (b) riding in the detective’s car

— with access to the gym bag

— while on the way to Appellant’s apartment , for officer safety t he detective searche d the bag to check for guns or ot her weapons

. As t he detective was search ing theUnited States v. Hale, NMCCA No 201600015 Opinion of the Court

5 bag for weapons
, he came across a depressed syringe, a needle, and a n empty drug

- table t “blister” packet

. The detective did not seize the se items
, but
p hotograph ed the m as he believ ed they might be evidence o f a crime under military law . He then return ed the gym bag to Appellant and went to Appellant’s truck, where he retrieved Appellant’s apartment keys and found a loaded, black, .40

- caliber Beretta handgun tucked between the front seats beneath the center co nsole

. Appellant’s command was notified of the APD investigation, including what was found in Appellant’s gym bag. Based on th is information and his own observations of Appellant’s rapid gain of muscle mass during the preceding weeks
, Appellant’s commander found probable cause to order Appellant to undergo urinalysis. Appellant’s urine sample tested positive for a metabolite of an anabolic steroid called Boldenone , a Schedule III controlled substance

. See 21 U.S.C. § 812 (2012)

. D esigned to help the body bu ild muscle mass
, Boldenone is formulated so that if injected into a large muscle group, it is gradually released into the body and can remain at a detectable level for as long as two to three months . The drug

- tablet blister packet found in Appellant’s bag was labelled clomiphene citrate, a substance bodybuilders use to kick start the body’s natural production of testosterone after completion of a steroid cycle.Upon referral of charges, the Government moved for an admissibility ruling regarding the evidence obtained from the gym bag and the urinalysis
, which the Defense opposed

. The military judge ruled admissible both the evidence obtained during the search of the gym bag and the derivative urinalysis evidence

. Upon receiving this ruling, Appellant pleaded guilty unconditionally to wrongful ly us ing Boldenone between 1 April and 1 October 2013

. During providency, he admitted using a syringe to inject himself intramuscularly with the steroid three times during this period at his apartment in Anchorage , Alaska
, in order to increase his appetite and help him gain weight.
The Government introduced the evidence obtained from Appellant’s gym bag and subsequent urinalysis i n its case

- in

- chief on the offenses to which Appellant pleaded not guilty . The Government used the evidence as proof of motive under M ilitary Rule of Evidence 404(b) to support its theory that Appellant was experiencing “roid rage” during the kidnapping, assault , and rape of Ms. Kelly

. Government expert s testified to how Boldenone and clomiphene cit rate work and opined that s teroid use is known to cause irritability, verbal and physical aggressi veness , and increased sex drive , which can lead to an increase d risk of sexually violent behavior.
The Government also introduced other evidence of Appellant ’s prior drug use and assaultive conduct

. Appellant’s first wife testified that in 2003
, afterUnited States v. Hale, NMCCA No 201600015 Opinion of the Court

6 she rebuffed his sexual advances, he forcibly raped her anally . She also testified that in 2004, after accusing her of infidelity, he pointed an unloaded gun at her, pulled the trigger, and later strangled her and threatened to kill their daughter if she took her from him

. Appellant’s ex

- fiancée testified that during the ir relationship (20 06

- 201 2 ) she observed him us ing painkillers that he had obtained without a p rescription ; that she saw him with vials of what he identified to be steroids ; that he talked about using the steroids to help him build muscle mass ; and that wh en she visited him in Alaska in May 2013 (three months before Ms. Kelly reported being raped by Appellant) , she found a used syringe in a garbage can in his apartment. At trial, Appellant testified in own defense as follows . He sent not just a few, but upwards of a hundred text messages to Ms. Kelly in which they discussed various topics
, including her prostitution services. W hen they

e ventually met to have sex , s he brought up the subject of drugs
, but he did not have her buy any drugs for him. He paid her $40.00 for oral sex as they had agreed, and she had him drive her to a location where she disap peared around the corner of a building

. A fter 15

- 20 minutes s he returned h appier and more upbea t . He then told her he did not have time and had somewhere else to be. S he said she no longer had the money Appellant had given her , but that they could meet lat er that night to finish the ir “ date. ” W hen he picked her up later that night , she convinced him to pay an additional $20.00 for vaginal sex , t hen had him take her to meet someone
, after which she c ame back to the truck bubbly as before

. S he then h ad him dr ive to a secluded parking lot , where she pulled out a condom
, put it on him, and they began having sex

. S he hit her wrist on the loaded hand gun that he k ept in “condition one” 2 between his truck’s front seat and center console , so he put it up on the dash b oard

. They had sex in multiple sexual positions due to the confines of the truck’s front seat area, and t he condom she gave him was too small and broke during ejaculation . This upset her
, and s he wanted him to pay an additional $50.00 , which h e refused to do. T hey argued about the fee increase until she finally said to forget it and just take her home. I nstead, he told her to get out of the truck and drove off . He l ater noticed her phone and identification cards in the truck
, and threw them out the window. Appellant also testified to being HIV

- negative ; to having unlawfully us ed painkillers without a prescription ; and to lying to the APD detective when he said he had only used steroids while out of the Marine Corps

.

2 A ha ndgun in “condition one” has a round in the chamber and can be fired immediately.United States v. Hale, NMCCA No 201600015 Opinion of the Court

7 In response to Ms. Kelly’s testimony abo ut her cocaine use, a D efense expert testified that cocaine users experience euphoria while using the drug and when they come down from this high, become frantic and paranoid. The expert also c hallenged the scientific foundation of the Government expert’s opinion that steroids like Boldenone cause users to be at increased risk for sexual violence.



### II. D ISCUSSION

A. Suppression Motion Appellant asserts the military judge erred in failing to suppress the evidence obtained from the gym bag and the derivative urinalys is . We review such rulings by the trial court for an abuse of discretion. United States v. Baker
, 70 M.J. 283, 287 (C.A.A.F. 2011 ) (citation omitted)

. “The abuse of discretion standard is a strict one, calling for more than a mere difference of opinion. Th e challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous.” United States v. Lloyd , 69 M.J. 95, 99 (C.A.A.F. 2010) ( citation and internal quotation marks omitted ).

1. Waiver As an initial matter, t he Government argues Appella nt waived th e suppression issue when he pleaded guilty unconditionally to wrongful use of Boldenone

. “ Whether an appellant has waived an issue is a legal question that this Court reviews de novo. Waiver is different from forfeiture. Whereas forfeiture is t he failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right. ” United States v. Davis , 79 M.J. 329, 331 (C.A.A.F. 2020) ( citation and internal quotation marks omitted)

. “[An unconditional] ple a of guilty to an offense that results in a finding of guilty waives all issues under the Fourth Amendment to the Constitution of the United States and Mil. R. Evid. 311

- 317 with respect to the offense
, whether or not raised prior to plea. ” Mil. R. Evid. 311(e) (emphasis added) ; see also R.C.M. 910(j) (“ Except as provided in [the rule relating to conditional pleas]
, 3 a plea of guilty which results in a finding of guilty waives any objec-

3 Conditional pleas are those into which an accused may enter “[w] ith the approval of the military judge an d the consent of the Government

. . . reserving the right, on furth er review or appeal, to review of the adverse determination of any specified pretrial motion. If the accused prevails on further review or appeal, the accused shall be allowed to withdraw the plea of guilty. ” R

. C

. M

. 910(a)(2).United States v. Hale, NMCCA No 201600015 Opinion of the Court

8 tion, whether or not previously raised, insofar as the objection relate s to the factual issue of guilt of the offense(s) to which the plea was made

. ”) (emphasis added)

. O n the face of the rule, an unconditional plea of guilty waives any suppression issues with respect to the offense to which the accused pleads guilty ; however
, the rule ’s language leaves open the question of whether the same suppression issues are waived with respect to any offenses to which the accused pleads not guilty. Our superior court has held that th is issue “cannot simply be determined by [an] appellan t’s pleas of not guilty” to one or more other offense s

. United States v. Cooper , 32 M.J. 83, 86 (C.A.A.F. 1991). Rather, c ourt s must examine whether the accused’s guilty plea has “judicially admitted the essential facts” that the evidence at issue would es tablish

. United States v. Hamil , 35 C.M.R. 82, 83 (C.M.A. 1964). The rationale for this principle is that the right to be free from unreasonable search and seizure is not judicially recognized as a mere abstract principle, but is vindicated by keeping out of evidence the results of the search or seizure. If a fact is judicially admitted by the accused, no legal or practical purpose can be served by reviewing the propriety of the search which produced some evidence of the conceded fact.
Id. Thus, i n this re gard , “[a] voluntary and informed plea of guilty does not necessarily preclude appellate review of the denial of the constitutionally protected right of an accused. ” Id

. The examination for judicial admission essentially looks at whether “the defense [did or] did not act in a way which preserved appellant’s Fourth Amendment claim.” Cooper , 32 M.J. at 86. In Cooper , after the military judge denied a motion to suppress certain seized evidence connecting the victim and his vehicle to the crime scene, the appel lant pleaded guilty unconditionally to adultery, but not guilty to rape. Id. at 84

- 85. The government admitted a laboratory report derived from the seized evidence in its case

- in

- chief to prove the victim’s presence in the appellant’s car, which was corrob orated by other evidence not subject to the suppression motion. The appellant then elected to defend himself on grounds of consent, request ed the members be informed of his guilty plea to adultery prior to the contested trial, stipulat ed he had sex with th e victim in his car during the incident in question (contrary to his pretrial statements denying that the victim was ever in his car at the crime scene), and testif ied that the sex they had was consensual

. T he appellant was convicted of rape, after which t he military judge set aside the adultery conviction as a lesser

- included offense. On appeal, the court held that Cooper’s plea of not guilty to rape did not preserve the suppression issue
, in part because his “plea [to adultery] and the ensuing finding of guilty were to a lesser

- included offense of the rape charge and extended to admission ofUnited States v. Hale, NMCCA No 201600015 Opinion of the Court

9 the precise element of proof for which the seized items were offered .” Id. at 85.
In addition to consider ing facts established by an accused’s guilty plea, the examina tion for judicial admission also looks at “inferences to be drawn from his own freely given testimony concerning the fruits of the searches.” United States v. Woodruff , 29 C.M.R. 84, 86 (C.M.A. 1960). In Woodruff , the appellant
, suspect ed of barracks theft
, was asked to identify his baggage at a train depot with out being advised of his ri ght s under Article 31, UCMJ. H is bag was then search ed and found to contain two stolen cameras. After h is motion to suppress the search was denied, he pleaded not guilty to larceny. At trial, he took the stand in his own defense and testified he had no idea how the cameras got into his bag and that he must h ave put them there by mistake. B ecause the appellant’s testimony conceded that the stolen cameras

were found in his bag , the court concluded that any error in the suppression ruling

— which was focused precisely on th e issue of whether the evidence was lawfully obtained from his bag

— was “ overcome by the accused’s later judicial declarations

. ” Id. at 86.
Here , the Article 11 2a offense to which Appellant pleaded guilty is not a lesser

- included offense that effectively established an element of a contested offense. Rather, it is a completely different offense that was connected to the Appellant’s contested trial only by the Gov ernment’s use of the related evidence as proof of motive for the contested offenses. Unlike the appellant in Cooper
, Appellant did not affirmatively incorporate the steroid evidence into his defense or in

- court testimony

. He did not request that the member s be informed of his guilty plea prior to trial or other wise seek to explain or expound upon his wrongful use of Boldenone . His defense was simply directed at confronting the Government’s evidence on the contested offenses
, including attacking the scientif ic foundation of the Government expert’s testimony about “roid rage.” Nor did Appellant concede during his trial testimony that the drug

related evidence was found in his gym bag, such that we may conclude he judicially admitted possessing or using the it ems found therein. Unlike the appellant’s testimony in Woodruff
, Appellant’s direct testi mony was limited to addressing the Government’s evidence on the contested offenses, maintaining they did not happen , as opposed to offering an explanation for the evid ence obtained during the contested search

. Only during cross

- exam ination did Appellant admit that he lied to the APD detective about not using steroids while on active duty , which we find insufficient to constitute a judicial admission as to the contested offenses

. See United States v. Pruitt , 30 C.M.R. 322, 331 (C.M.A. 1961) (Ferguson, J., concurring in part and dissenting in part) (where an accused’s direct testimony is properly limited to confronting aUnited States v. Hale, NMCCA No 201600015 Opinion of the Court

10 particular charge, the rule regarding judicial admis sion / confession applies only that charge).
W e conclude that Appellant’s unconditional guilty plea to wrongful use of Boldenone waived any and all suppression issue s only with respect to that offense . It did not waive such issues with respect to the evidenc e ’s use under Mil itary R ule of Evid ence 404(b) as proof of motive for his commi ssion of the other offenses that he pleaded not guilty to and contested at trial

.
2. S earch Incident to Apprehension Accordingly, we move to the substance of Appellant’s AOE regar ding the trial court’s suppression ruling. Evidence obtained as a result of an unlawful search or seizure by a governmental agent is generally inadmissible against

an accused if:(1) the accused makes a timely motion to suppress or an objection to the evi dence under this rule; (2) the accused had a reasonable expectation of privacy in the person, place, or property searched; the accused had a legitimate interest in the property or evidence seized when challenging a seizure; or the accused would otherwise h ave grounds to object to the search or seizure under the Constitution of the United States as applied to members of the Armed Forces; and (3) exclusion of the evidence results in appreciable deterrence of future unlawful searches or seizures and the benefi ts of such deterrence outweigh the costs to the justice system. Mil. R. Evid. 311(a). Here, the military judge ruled the evidence obtained from the gym bagadmissible as the fruits of a lawful search and the urinalysis evidence admissible as derivative of that lawful search. He concluded that the search of the gym bag was lawful for several reasons: (1) as obtained within the scope of a valid search warrant based on probable cause; (2) as obtained during the APD detective’s good faith execution of a search warrant; and (3) as obtainedduring a search conducted for officer safety that was reasonable and necessary under the totality of circumstances. 4 We focus our analysis on themilitary judge’s third rationale, that the evidence was found during a reasonabl e search conducted for purposes of officer safety.

4 App. Ex. LXIX.United States v. Hale, NMCCA No 201600015 Opinion of the Court

11 “E vidence is admissible if seized in a search of a person who has been lawfully apprehended or if seized as a result of a reasonable protective sweep. ” Mil. R. Evid. 314(g)(1). Searches incident to appreh ension
include a search for weapons

. . . in the area within the immediate control of a person who has been apprehended

. “Immediate control” means that area in which the individual searching could reasonably believe that the person apprehended could reach with a sudden movement to obtain such property. Mil. R. Evid. 314(g)(2). S earches incident to apprehension are “full” searches, as opposed to the more limited protective search es incident to investigatory stops under Terry v. Ohio , 392 U.S. 1 (1968)
, and they are not invalidated by even a substantial delay between the apprehension and the search. United States v. Curtis , 44 M.J. 106, 143 (C.A.A.F. 1996) (citing United States v. Robinson , 414 U.S. 218, 235 (1973) ; Gustafson v. Florida , 414 U.S. 260, 264 (19 73) )

. As the Supreme Court has explained
, Once the accused is lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may lawfully be searched and seized w ithout a warrant even though a substantial period of time has elapsed between the arrest and the subsequent administrative processing, on the one hand, and the taking of the property for use as evidence, on the other

. . . .

“ While the legal arrest of a per son should not destroy the privacy of his premises, it does

— for at least a reasonable time and to a reasonable extent

— take his own privacy out of the realm of protection from police interest in weapons, means of escape, and evidence.”
United States v. Edwa rds , 415 U.S. 800, 807 (1974) (quoting United States v. DeLeo , 422 F.2d 487, 493 (1st Cir. 1970)) (emphasis added) (finding 10

- hour delay between apprehension and search reasonable under the circumstances)

. Since Edwards , the Supreme Court has held that “ w arrantless searches of luggage or other property seized at the time of arrest cannot be justified as exigent to that arrest either if the search is remote in time or place from the arrest or if no exigency exists.” United States v. Chadwick , 433 U.S. 1, 15 (1977)
, abrogated on other grounds by California v. Acevedo , 500 U. S. 565, 111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991) (citations and internal quotation marks omitted). In Chadwick
, at the time the appellants were apprehended, a locked footlocker was seize d from the tru n k of their car and searched for evidence without a warrant an hour and a half later. The Supreme Court held the search unlawful, reasoning thatUnited States v. Hale, NMCCA No 201600015 Opinion of the Court

12 [o] nce law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the ar rest

. Chadwick , 433 U.S. at 15 (emphasis added)

. On the facts presented here, w e find the detective’s search of Appellant’s gym bag for weapons was lawfully conducted incident to Appellant’s appre

hension. A s the military judge properly found, the bag wa s in a gym locker at the time Appellant was apprehen ded

. Appellant specifically notified the arresting officers of the bag and requested that they open it to retrieve his truck keys
, to minimize any damage to his truck when it was towed to the APD station

. Thus
, at Appellant’s own request , the bag and its contents became “effects within his possession” at the place of detention
, as opposed to closed baggage subject to the greater restrictions imposed under Chadwick. Th is request effectively caus e d the bag t o become “immediately associated with his person” at the time of his apprehension

. In addition, there was a real danger that Appellant ’s bag contain ed a weapon that he might access and use once the bag was returned to him at the APD station. Appellant had admitted that he owne d and possess ed a loaded .40

- caliber handgun that he kept in condition one

. Ms. Kelly had alleg ed that Appellant used the same sort of hand gun while kidnapping and raping her only a month earlier . Under these circumstances , we find it would be extraordinarily un reasonable for the detective not to search the bag for weapons before returning it to Appellant within eight hours of his apprehension at the gym

. We therefore conclude that under the circumstances the detective’s search for pu rposes of officer safety was reasonable in both time and extent under Edwards

. A s the search for weapons was lawful, the drug

- related items that t he detective came across during his search were properly subject to photographing under the doctrine of plain view, because “ while in the course of otherwise lawful activity [the detective] observe [d] in a reasonable fashion [the items] that [he] ha [d] probable cause to seize. ” Mil. R. Evid. 316(c)(5)(C).
W e further agree with the military judge’s conclusion that the command

directed urinalysis evidence was derivative of this lawful search of the gym bag . “ Evidence obtained from reasonable searches conducted pursuant to a search warrant or search authorization

. . . is admissible at trial when relevant and not oth erwise inadmissible under these rules or the Constitution of the United States as applied to members of the Armed Forces. ” Mil. R. Evid.United States v. Hale, NMCCA No 201600015 Opinion of the Court

13 315(a). Such search authorizations must be based on probable cause, which means “ a reasonable belief that the person, p roperty, or evidence sought is located in the place or on the person to be searched .” Mil. R. Evid. 315(f)(2). Based on the evidence found in the gym bag and his own observation of Appellant’s rapid gain of muscle mass over the preceding weeks, t he searchauthority for the urinalysis had ample basis for his probable cause determination. Even assuming arguendo the detective’s search was unlawful, we conclude Appellant has failed to show that “ exclusion of the evidence results in appreciable deterrence of fut ure unlawful searches or seizures and the benefits of such deterrence outweigh the costs to the justice system. ” Mil. R. Evid. 311(a) (3)

. In this case, the APD detective did precisely what the law contemplates in his handling of the gym bag. After Appellan t’s truck keys had been retrieved from it

— at Appellant’s specific request

— the bag accompanied Appellant to the A PD station along with other personal effects

. The detective then interrogated Appellant and , based on the information he received, obtained warr ants to search his phone, truck, and person. When it subsequently became apparent that Appellant would be riding with him to Appellant’s apartment to retrieve the phone , the detective had eminently sound reason to search the bag for a gun or other weapon s before returning it to Appellant at the APD station

. Conduct of this sort

— directed at ensuring officer safety in a case involving an alleged assault with a loaded handgun that had not yet been found

— is not what the exclusion ary rule aims to deter. Nor woul d the benefits of deterring such conduct outweigh the costs to the justice system. Accordingly, we find no abuse of discretion in the military judge’s suppression ruling.

B. Legal and Factual Sufficiency Appellant asserts the evidence is legally and factuall y insufficient to support his conviction s . We review such questions de novo

. UCMJ
, a rt

. 66(c); United States v. Washington , 57 M.J. 394, 399 (C.A.A.F. 2002). To determine legal sufficiency, we ask whether, considering the evidence in the light most favorab le to the prosecution, a reasonable fact

- finder could have found all the essential elements beyond a reasonable doubt. United States v. Turner , 25 M.J. 324, 324

- 25 (C.M.A. 1987) (citing Jackson v. Virginia , 443 U.S. 307, 319 (1979)). In conducting this ana lysis, we must “draw every reasonable inference from the evidence of record in favor of the prosecution.” United States v. Gutierrez , 74 M.J. 61, 65 (C.A.A.F. 2015). In evaluating factual sufficiency, we determine whether, after weighing the evidence in t he record of trial and making allowances for not havingUnited States v. Hale, NMCCA No 201600015 Opinion of the Court

14 observed the witnesses, we are convinced of the appellant’s guilt beyond a reasonable doubt. Turner , 25 M.J. at 325 (C.M.A. 1987). In conducting this unique appellate function, we take “ a fresh, impar tial look at the evidence, ” applying “ neither a presumption of innocence nor a presumption of guilt ” to

“ make [our] own independent determination as to whether the evidence constitutes proof of each required element beyond a reasonable doubt. ” Washington
, 57 M.J. at 399. Proof beyond a “[ r ] easonable doubt
, however, does not mean the evidence must be free from conflict. ” United States v. Rankin, 63 M.J. 552, 557 (N

- M. Ct. Crim. App. 200 6 ). Here, Ms. Kelly’s testimony is corroborated by both real and testimon ial evidence

. Video footage from a local store support s her testimony about her activit y with Appellant prior to the assault. Her description of the handgun matche s the handgun later found in Appellant’s truck that he admitted taking out and placing on the dash board as she described . The scraping of her back against the seatbelt that she described feeling while being raped is a precise match with both the scratch marks on her lower back photographed during the SAFE exam and the location of the seatbelt buck ler in the front seat of Appellant’s truck. Both the residents of the house that she ran to and the staff of the women’s shelter testified that she was noticeably upset and shaken as she told them about what happened. The overall framework and timeline of her account to the APD the day following the assault is largely supported by Appellant’s own testimony. And the semen found in her vagina contains Appellant’s DNA. Appellant’s account , by contrast, is often contradicted by other evidence
, including his own prior statements to the APD detective

. Telephone records support that prior to meeting with her in person, he communicated with Ms. Kelly far more often tha n he originally maintained, which he subsequently admitted at trial. Testimony from his ex

- wife abo ut his prior assaults against her contradicts his statement that he had never pointed a gun at anybody or done anything like what Ms. Kelly was alleging. His ex

- fiancée ’s testimony
, along with the evidence from the gym bag and subsequent urinalysis
, contradicts h is claim to the detective that h e had never used painkillers without a prescription or used steroids during his time in the Marine Corps, which he admitted lying about during his testimony

. These contradictions, in turn, increase the believability o f Ms. Kelly’s account and out weigh her own credibility issues. The fact that, unbeknownst to her, Appellant had previously used illegal painkillers greatly strengthens her testimony that he twice gave her money to purchase that sort of illegal drugs,
as op posed to money for her own prostitution services. By contrast, h er own

coc aine use
, status as a prostitute living in a women’s shelter
, and other credibility issues make more plausible her reaction to being assaulted, herUnited States v. Hale, NMCCA No 201600015 Opinion of the Court

15 initial unwillingness to go to the police, and her reason for not giving the full story to the APD during her initial interview

. W e find the evidence adduced at trial vastly more supportive of an armed bodybuilder kidnapping and sexually assaulting Ms. Kelly out of drug

- fueled
anger, than a cocaine

- addicted prostitute concocting a detailed
, false allegation for an unpaid $50.00 add

- on fee or additional resident time at her women’s shelter. We find the evidence both legally and factually sufficient to sustain Appellant’s convictions.



### III. C ONCLU SION
After careful consideration of the record and briefs of appellate counsel, we have determined that the findings and sentence are correct in law and fact and that no error materially prejudicial to Appellant’s substantial rights occurred. UCMJ a rt s

. 5 9, 66. T he findings and sentence are AFFIRMED

. Chief Judge Emeritus CRISFIELD and Judge STEWART concur.

FOR THE COURT:

RODGER A. DREW, JR. Cler k of Court