UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

 

Before

J.R. MCFARLANE, M.C. HOLIFIELD, K.J. BRUBAKER

Appellate Military Judges

 

UNITED STATES OF AMERICA

 

v.

 

ARVIS D. OWENS

COMMANDER (O-5), SUPPLY CORPS, U.S. NAVY

 

NMCCA 201300485

GENERAL COURT-MARTIAL

 

Sentence Adjudged: 5 November 2013. 

Military Judge: CAPT Carrie Stephens, JAGC, USN. 

Convening Authority: Commander, Naval District Washington, 

Washington, DC. 

Staff Judge Advocate's Recommendation: LCDR J.D. Pilling, 

JAGC, USN. 

For Appellant: William E. Cassara, Civilian Counsel; Capt 

David Peters, USMC. 

For Appellee: LCDR Keith B. Lofland, JAGC, USN; Capt 

Matthew Harris, USMC. 

 

8 January 2015 

 

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OPINION OF THE COURT 

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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS 

PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2. 

HOLIFIELD, Judge: 

 

A panel of officers sitting as a general court-martial 

convicted the appellant, contrary to his pleas, of violating a 

lawful general order (sexual harassment), abusive sexual 

contact, and conduct unbecoming an officer, in violation of 

Articles 92, 120, and 133, Uniform Code of Military Justice, 10 

U.S.C. §§ 892, 920, and 933. The appellant was acquitted of an 

additional specification involving sexual harassment, three 
2 

specifications of abusive sexual contact, and one specification 

of assault consummated by battery. The members sentenced 

the appellant to be dismissed from the Service. The convening 

authority (CA) approved the sentence as adjudged.1 

 The appellant raises eleven assignments of error (AOE): 

(1) that the Government’s failure to provide requested 

medical records of the victim denied him his 5th 

Amendment right to due process; 

(2) that the Government’s failure to provide evidence 

of the victim’s learning disability denied him his 

right to discovery under Article 46, UCMJ; 

(3) that the military judge denied the appellant’s 

Sixth Amendment right to confrontation by precluding 

cross-examination of the victim regarding her learning 

disability; 

(4) that the military judge erred in admitting the 

victim’s prior consistent statements when they were 

not made prior to when a motive to fabricate arose; 

(5) that the military judge improperly allowed the 

trial counsel to question the appellant regarding the 

veracity of a prosecution witness’ testimony; 

(6) that the failure to provide the members with the 

general order the appellant was accused of violating 

renders the evidence on that charge legally 

insufficient; 

(7) that the Article 92 specifications fail to state 

offenses, as the general order in question is not 

punitive; 

(8) that the military judge abused her discretion when 

she did not grant a mistrial when at least one member 

was no longer confident in the panel’s verdict; 

(9) that the evidence supporting the Article 120, 

UCMJ, charge was factually insufficient; 

 

1

 On 23 December 2014, the court released an opinion in which we affirmed some 

of the findings, set aside the CA’s action, and returned the record of trial 

to the Judge Advocate General for remand to an appropriate CA for new posttrial processing. By Order dated 2 January 2015, the court determined that 

it would sua sponte reconsider its 23 December 2014 opinion. The court’s 23 

December 2014 opinion is hereby withdrawn and replaced with this opinion, in 

which we do not affirm any of the findings in advance of the new CA’s action. 
3 

(10) that the military judge’s post-trial order to the 

members denied the appellant an opportunity to submit 

clemency matters; and, 

(11) that the promulgating order inaccurately reflects 

the specification language of which the appellant was 

found guilty.2

 

After careful consideration of the record of trial, the 

appellant’s AOEs, and the written and oral submissions of the 

parties, we find the evidence introduced at trial insufficient 

to support a conviction for violation of a lawful general order 

and will take corrective action in our decretal paragraph. Our 

decision in this regard renders moot the appellant's seventh and 

eleventh assignments of error. 

Background 

 While assigned to the Defense Logistics Agency (DLA) as the 

Strategic Management Branch Chief within the Order Management 

Division, the appellant, a married man, worked with SD, a GS-4 

civilian employee in the same Division. SD had been hired 

through the Workforce Recruitment Program (WRP), which was 

designed, at least in part, to facilitate the hiring of persons 

with learning disabilities. The appellant and SD had frequent 

interaction, and, despite SD often sharing personal information 

during their meetings, their relationship was professional. 

During a 4 October 2012 meeting in the appellant’s office, the 

appellant and SD shared two “friendly” hugs and the appellant 

commented favorably on her dress and appearance. Record at 626, 

974. Six days later, the appellant called SD to his office. At 

this meeting the appellant kissed SD and made numerous comments 

of a sexual nature.3 The parties disagree as to whether this 

conduct was consensual. Later that day, the appellant again 

asked SD to come to his office. Upon her arrival, the appellant 

kissed SD, rubbed her vagina through her underwear, touched and 

kissed her breasts, placed SD’s hand on his erect penis, and 

made numerous sexual comments.4

 Again, the parties disagree as 

to whether this conduct was consensual. Throughout the 

 

2

 We have considered AOEs 4, 5 and 8 and find no error. United States v. 

Clifton, 35 M.J. 79, 81 (C.M.A. 1992). 

3

 The appellant was charged with violating a lawful general order by sexually 

harassing SD through these comments, but was acquitted of this specification. 

4

 Based on these comments, the appellant was convicted of violating a lawful 

general order prohibiting sexual harassment. Although charged individually 

with each of the sexual contacts, the appellant was convicted only of causing 

SD’s hand to touch his penis without her consent. 
4 

encounter, SD did not try to leave or clearly articulate her 

lack of consent. Rather, she made statements that she “didn’t 

know how quiet [she] could be,” and “couldn’t wrap [her] head 

around this.” Id. at 651-52. 

SD did not immediately report the appellant’s conduct and 

witnesses observed nothing unusual about her demeanor that day. 

She remained at the office until her normal departure time. SD 

did not return to the office for more than two weeks following 

this incident, giving her supervisor various excuses for why she 

could not come in to work. At trial, SD testified she feared 

going to the office, believing the appellant would rape her. 

Several days after the encounter with the appellant, SD 

contacted her personnel office seeking information on how to 

make a sexual harassment/assault complaint. Shortly thereafter, 

she was contacted by DLA’s Office of the Inspector General. 

During SD’s absence, the appellant repeatedly attempted to 

contact her and expressed concern for SD to SD’s supervisor, two 

things he had not done during other periods when she was absent. 

 Other facts necessary to address the assigned errors will 

be provided below. 

Discovery/Production 

The first two AOEs involve alleged discovery and production 

violations. Prior to the Article 32, UCMJ, hearing in this 

case, the defense requested, inter alia, “any medical records 

which exist for [SD] for any medical treatment, received as a 

result of any complaints pertaining to this investigation,” as 

well as “any psychiatric records which exist for [SD]” that 

either “may bear upon [SD’s] mental capacity on 4 and/or 10 

October 2012” or reflect “treatment as a result of any mental 

issues attributed to the alleged misconduct by [the appellant].” 

Appellate Exhibit LXXI. The defense subsequently requested 

“[a]ccess to all relevant personnel, medical and mental health 

records of all potential witnesses who may testify against the 

Accused at any stage of the case,” as well as “any medical or 

psychiatric report or evaluation, tending to show that any 

prospective witness’s ability to perceive, remember, 

communicate, or tell the truth is impaired[.]” AE LXXII. While 

trial counsel makes a passing reference to a Government 

“response,” there is nothing in the record to indicate how the 

Government answered these requests. Record at 1256. 

Article 46, UCMJ, requires that “the trial counsel, the 

defense counsel, and the court-martial shall have equal 

opportunity to obtain . . . evidence[.]” RULE FOR COURT-MARTIAL 

703(F)(1), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) further 
5 

requires that the Government produce any evidence, specifically 

requested by the defense, upon a showing it is “relevant and 

necessary.” We review claimed discovery and disclosure 

violations in two steps: “‘first, we determine whether the 

information or evidence at issue was subject to disclosure or 

discovery; second, if there was nondisclosure of such 

information, we test the effect of that nondisclosure on the 

appellant’s trial.’” United States v. Coleman, 72 M.J. 184, 187 

(C.A.A.F. 2013) (quoting United States v. Roberts, 59 M.J. 323, 

325 (C.A.A.F. 2004)). Where the defense has made a general 

request, we test nondisclosure for harmless error, that is, 

“whether there is a reasonable probability that, had the 

evidence been disclosed, the result of the proceeding would have 

been different.” Id. at 186 (internal quotation marks and 

citation omitted). However, where the undisclosed matter was 

the subject of a specific request, we look to see whether the 

nondisclosure was harmless beyond a reasonable doubt. Id. at 

187. This determination must be made in light of the entire 

record. United States v. Morris, 52 M.J. 193, 197 (C.A.A.F. 

1999). 

Medical Records 

The appellant argues the prosecution failed to provide SD’s 

medical records despite a specific request, and that the 

military judge’s remedy for the nondisclosure – to preclude the 

prosecution from mentioning any medical or psychological 

treatment during sentencing – was inadequate. 

 This issue first arose during trial when SD, responding to 

a question from civilian defense counsel (CDC) regarding a 

pending lawsuit, mentioned medical expenses. A subsequent 

question from a panel member sought the details of SD’s medical 

treatment; CDC did not object. After closing arguments, CDC for 

the first time claimed a discovery violation concerning the 

requested medical records. While the military judge did not 

conclusively find that there was a violation, she stated she was 

“inclined to make [a] determination that there was some 

violation.” Record at 1260. She then instructed the members to 

disregard any evidence on the merits regarding any medical or 

psychological treatment SD may have received, and granted CDC’s 

proposed remedy to preclude mention of any medical or 

psychological treatment during sentencing. 

After stating the “government’s position was [the medical 

records were] not relevant” at the time when the prosecution 

responded to the production request, trial counsel admitted, 
6 

“[t]o be perfectly honest, I don’t know that they exist[.]” Id.

at 1254, 1256. Unfortunately, neither does the military judge 

or this court. We are left to consider a long list of “what if” 

questions based on what the records “may contain.” Appellant’s 

Brief of 23 May 2014 at 17. The time to answer these questions 

was at trial. CDC did not move to compel the production of the 

requested records, request a delay in the trial to allow for an 

in camera review by the military judge, or request a mistrial 

based on the production violation. By not doing so, we find the 

appellant waived the issue. 

There is a “‘reasonable presumption against waiver of 

fundamental constitutional rights. . . [and such a] waiver is 

effective only if it is knowingly and intelligently rendered.’” 

United States v. Avery, 52 M.J. 496, 498 (C.A.A.F. 2000) 

(quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). Such a 

waiver requires affirmative action and not merely a failure to 

object. Id. (citation omitted). Not every discovery violation 

involves a constitutional right, as “Article 46 and its 

implementing rules provide greater statutory discovery rights to 

an accused than does his constitutional rights to due process.” 

Coleman, 72 M.J. at 187 (citations omitted). However, we need 

not determine whether the present violation impacted a 

fundamental constitutional right; even applying the higher 

“knowingly and intelligently rendered” test, we still find 

waiver in this case. 

Here, CDC was aware of and objected (if somewhat belatedly) 

to the alleged violation. Despite speculating on how the 

medical records may have assisted him in impeaching SD on the 

merits, CDC sought no remedy other than for sentencing. When 

asked by the military judge for a proposed remedy, CDC stated: 

“the remedy is that the witness not be allowed to testify about 

things that haven’t been discovered on—on the defense.” Record 

at 1257. When the military judge later indicated she would 

instruct the members to disregard any evidence regarding medical 

or psychological impact, CDC responded, “I’m fine with that.” 

Id. at 1300. Had CDC insisted on the production of the medical 

records, as he did regarding the learning disability testing 

(addressed below), this court would be in a position to weigh 

the relevance and necessity of those records. In foregoing this 

remedy, despite being made aware of the records’ existence and 

objecting to their nonproduction, CDC created the very situation 

that waiver is designed to address. 

Learning Disability Testing

 
7 

 At the Article 32, UCMJ, hearing, SD testified she had a 

learning disability. Despite being on notice of this issue – 

now considered by the appellant to be critical to his case - the 

defense neither filed a supplemental discovery request nor 

questioned before trial the Government’s failure to turn over 

any related documents in response to its general discovery 

request. 

At trial, trial counsel mentioned SD’s learning disability 

in his opening statement and sought to question SD on it during 

direct examination. CDC objected, arguing lack of discovery and 

lack of relevance to the offenses as charged.5

 The military 

judge found that the information “could be relevant” and allowed 

the questions, stating the defense could cross-examine SD on the 

matter and inquire whether SD had been tested for a learning 

disability. Record at 600, 603. The military judge also 

offered to give a limiting instruction if desired. 

The trial counsel asked several questions on the subject, 

establishing that SD had a learning disability, was able to 

graduate from high school despite this, and was hired through “a 

program for people with disabilities.” Id. at 608. CDC’s 

cross-examination on the topic was significantly more 

substantial, eliciting testimony from SD that her condition 

affected her ability to read quickly and sometimes required 

people to explain things to her in more detail. SD also 

testified that she had “normal social skills” and no “cognitive 

disabilities.” Id. at 689. SD stated she had been tested for a 

learning disability in high school, and that a report of this 

testing existed. 

The military judge renewed her offer to provide a limiting 

instruction; both the prosecution and defense declined the 

offer, with CDC restating his request to see the learning 

disability-related records. Id. at 796. SD subsequently 

provided the report6

 to the prosecution, who, at the military 

judge’s direction, shared it with the defense. In response to 

the CDC’s objection to the late discovery of the report, the 

military judge ruled the prosecution could not use SD’s learning 

disability as “one of the bases for . . . any of the charges.” 

Id. at 1101. 

 

5

 The Government did not charge the appellant with any offenses based upon 

SD’s lack of capacity. 

6 AE LXIX.
8 

The Government later called SD as a rebuttal witness. 

During cross-examination, CDC sought to question SD on the 

learning disability report. In response to a relevance 

objection, CDC argued that he should be able to use the report 

to impeach SD’s credibility. Specifically, he argued that, 

since the report did not substantiate a claim of a learning 

disability, SD’s earlier testimony that she had such a 

disability was false. The military judge disagreed with CDC’s 

interpretation of the report, stating that the report did not 

impeach SD’s testimony. At that point, having had the benefit 

of hearing SD’s testimony and seeing the report’s contents, the 

military judge reversed her earlier ruling on the relevance of 

SD’s learning disability and instructed the members to disregard 

all testimony they had heard regarding the subject. CDC did not 

object to this instruction. 

It is not disputed that the report was not in the 

Government’s possession prior to the trial. It is also clear 

that neither of the defense’s discovery requests identified the 

report with the specificity required by R.C.M. 703(f)(3).7

 

However, the record indicates that the Government was aware of 

SD’s learning disability, and knew that a record of testing 

existed. Arguably, the Government should have known SD’s 

learning disability might prove relevant when it decided to 

raise the issue in its opening statement and case-in-chief. 

Whether these facts transform the defense’s general request 

so as to meet the requirements of R.C.M. 703, or subject the 

nondisclosure to the stricter review normally applicable to a 

specific request, are not questions we need answer here, as the 

appellant has not demonstrated prejudice. Assuming, arguendo,

that the defense made a specific request for the testing report, 

that the failure of the Government to obtain and provide the 

report in response to the defense’s request was error, and that 

the military judge’s instruction to the members was an 

insufficient remedy, we test whether the nondisclosure was 

harmless beyond a reasonable doubt. The sole basis for the 

report’s relevance offered by the CDC was to impeach SD’s claim 

of having a learning disability. Unlike SD’s medical records, 

we do know the contents of her learning disability testing 

report, and a thorough reading reveals the report comports in 

all relevant aspects with her testimony. As we agree with the 

military judge’s finding that the report in no way served to 

 

7

 R.C.M. 703(f)(3) requires that “any defense request for the production of 

evidence shall list the item of evidence to be produced and shall include a 

description of each item sufficient to show its relevance and necessity, a 

statement where it can be obtained, and, if known, the name, address, and 

telephone number of the custodian of the evidence.” 
9 

impeach SD, we find any error in not disclosing the report prior 

to trial was harmless beyond a reasonable doubt.

Confrontation

 The appellant next claims the military judge’s ruling that 

SD’s learning disability was not relevant denied him the 

opportunity to cross-examine SD and thereby deprived him of his 

Sixth Amendment right to confrontation. We disagree. 

 “Where the Sixth Amendment’s right to confrontation is 

allegedly violated by a military judge’s evidentiary ruling, the 

ruling is reviewed for an abuse of discretion.” United States 

v. Moss, 63 M.J. 233, 236 (C.A.A.F. 2006) (citation omitted). 

Where an abuse of discretion involving a constitutional right is 

found, we look to see whether the error was harmless beyond a 

reasonable doubt. Id. While the right of confrontation 

“necessarily includes the right to cross-examine,” this right is 

not unlimited. United States v. Ellerbrock, 70 M.J. 314, 318 

(C.A.A.F. 2011) (citations omitted). A military judge may limit 

interrogation that is “only marginally relevant.” Id. (internal 

quotation marks and citations omitted). 

 As discussed above, the military judge initially ruled that 

evidence of SD’s disability “could be relevant,”8

 only to later 

rule that it was “not relevant to these proceedings.”9 While the 

appellant seeks to make much of this reversal, it is easily 

explained. The initial ruling was made in the absence of any 

specific information regarding SD’s learning disability. Her 

final ruling had the benefit of CDC’s cross-examination of SD 

and a full review of the testing report. A military judge may, 

“upon any question of law other than a motion for a finding of 

not guilty, . . . change his ruling at any time during the 

trial.” Art. 51(b), UCMJ. 

CDC’s stated purpose for cross-examining SD on her learning 

disability was to attack her credibility, saying: “she came in 

here and testified that she has a learning disability and, based 

on everything in this [report], it doesn’t appear to me that she 

does.” Record at 1155. As we agree with the military judge’s 

finding that the report corroborates SD’s testimony and does not 

say that SD does not have a learning disability, we do not find 

that the military judge abused her discretion in barring the 

desired cross-examination. 

 

8

 Record at 600. 

9 Id. at 1154. 
10 

Even were we to assume error, we find no prejudice. The 

appellant now argues on appeal that the learning disability was 

relevant to explain why SD responded to the appellant and 

investigators as she did. At trial, the defense specifically 

addressed and rejected this argument: “there’s got to be a nexus 

between the learning disability and the lack of response.” 

Record at 602. He then noted the lack of any evidence showing 

such a relationship other than SD’s testimony that “she needs 

things explained to her at work or she has to read slower.” Id. 

Given the absence of anything in the subsequently-produced 

testing report to establish the nexus CDC found missing, we find 

it very unlikely the defense would have changed its position and 

argued relevance on the basis now raised on appeal. Even if 

they had, we find beyond a reasonable doubt that it would have 

had no impact on the verdict. Accordingly, we find that 

precluding the line of questions sought by CDC, even assuming it 

was error, was harmless beyond a reasonable doubt. 

 

Legal and Factual Sufficiency 

The appellant claims, in his sixth and ninth AOEs, that the 

evidence was factually and legally insufficient to sustain 

convictions for violation of a lawful general order and abusive 

sexual contact, respectively. We agree on the former and 

disagree on the latter. 

We review questions of legal and factual sufficiency de 

novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 

2002). The test for legal sufficiency is whether any rational 

trier of fact could have found that the evidence met the 

essential elements of the charged offenses, viewing the evidence 

in a light most favorable to the Government. United States v. 

Turner, 25 M.J. 324, 324 (C.M.A. 1987). The test for factual 

sufficiency is whether we are convinced of the appellant's guilt 

beyond a reasonable doubt, allowing for the fact that we did not 

personally observe the witnesses. Id. at 325. However, 

reasonable doubt does not mean the evidence must be free from 

conflict. United States v. Rankin, 63 M.J. 552, 557 

(N.M.Ct.Crim.App. 2006), aff’d, 64 M.J. 348 (C.A.A.F. 2007). 

 

Violation of a Lawful General Order 
11 

 The two specifications under Charge I alleged violations of 

Secretary of the Navy Instruction 5350.16A, dated 18 December 

2006. At trial, trial counsel marked a copy of the instruction 

as “Prosecution Exhibit 14 For Identification”, and the military 

judge took judicial notice of the instruction’s existence and 

applicability to the appellant. During an Article 39(a), UCMJ, 

session in which the parties discussed what portions of the 

instruction would be published to the members, the military 

judge stated, “the entire instruction is part of the evidence in 

this case.” Record at 878. Trial counsel then responded by 

offering the entire instruction as “Prosecution Exhibit 14.” 

Id. However, despite the agreement of both parties and the 

military judge that the instruction had been admitted into 

evidence, the words “For Identification” were never struck, and 

the exhibit was not provided to the members. Nevertheless, the 

members found the appellant guilty of violating the instruction. 

 The appellant was acquitted of the first specification 

under Charge I. Thus, we restrict our review to the facts as 

they apply to the second specification only. The military judge 

instructed the members on the elements of the second 

specification under Charge I as follows: 

In order to find the accused guilty of the offense, 

you must be convinced by legal and competent evidence 

beyond a reasonable doubt: 

One, that there was in existence a certain lawful 

general order in the following terms, SECNAV 

Instruction 5350.26ALPHA, dated 18 December 2006; 

Two, that the accused had a duty to obey such order; 

and, 

Three, that on or about 10 October 2012, the accused 

failed to obey this order--this lawful general order 

by sexually harassing [SD] by engaging in verbal 

conduct of a sexual nature, which had the effect of 

creating a hostile work environment when he told [SD] 

while at work “You know I am going to fuck you, 

right?” or words to that effect, “Look at me--look at 

what you do to me,” or words to that effect, referring 

to his erection. Then he had--that he had been good 

as long as he could, or words to that effect, that he 

was going to do something bad, or words to that 

effect, that her butt is nice, or words to that 

effect, that her breasts were nice, or words to that 
12 

effect, and that he knew how to keep her quiet, or 

words to that effect. 

For [this] specification[], the following is provided: 

As a matter of law the order in this case, as 

described in the specification, if, in fact, there was 

such an order, was a lawful order. 

Record at 1185-86. She also instructed the members that 

she had “taken judicial notice that Secretary of the Navy, 

SECNAV, Instruction 5350.16A is a lawful general order, 

that it was in existence throughout October 2012, and that 

the accused had a duty to obey it during that period of 

time,” and that the members were “permitted to recognize 

and consider those facts without further proof.” Id. at 

1194. There was no discussion of the instruction’s 

language. 

 Thus, all the members knew of the instruction was that it 

was a lawful general order in existence and applicable to the 

appellant at the time of the alleged violation. Without having 

the actual text of the instruction against which to examine the 

appellant’s conduct, they were left to fall back on facts 

outside the record. While these senior officers likely knew the 

basic proscriptions of the Navy’s sexual harassment policy 

through many years of training, they were properly instructed 

that “[a]n accused may be convicted based only on evidence 

before the court[.]” Id. at 1195. Accordingly, we conclude 

that the appellant's conviction under Specification 2 of Charge 

I cannot withstand the test for legal sufficiency, and will set 

aside that finding of guilty and dismiss that specification. 

Abusive Sexual Contact 

 The elements of abusive sexual contact under Article 120, 

UCMJ, are as follows: (1) That the appellant committed or 

caused sexual contact by SD; and, (2) that the touching was done 

by causing bodily harm to SD. The appellant and SD agree that 

SD touched the appellant’s penis with her hand. But, while SD 

stated the appellant placed her hand there against her will, the 

appellant testified SD did so of her own volition. 

SD testified that the appellant “grabbed [her] hand and 

started rubbing his erection with it.” Record at 652. She also 

testified that, other than the initial two hugs, all contact 

during the events in question was without her consent. 
13 

Accordingly, we find the prosecution presented evidence on every 

element of the charged offense. 

 The next question is whether the evidence was factually 

sufficient. SD and the appellant, the sole occupants of the 

room where the touching occurred, painted very different 

pictures on the matter of consent. The issue, then, is whether 

reasonable doubt exists with respect to SD’s testimony regarding 

lack of consent. As matters in support of reasonable doubt, the 

appellant offers two alleged motives to fabricate. First, the 

appellant argues that SD was seeking revenge for a statement by 

the appellant implying that she had no future with him. Second, 

the appellant claims SD was seeking money; she hired an attorney 

and filed suit against the Government for the sexual harassment 

she allegedly endured. 

 We give no weight to the first alleged motive. We simply 

find incredible the appellant’s scenario: that a consensual 

sexual encounter that ended with the appellant responding “I 

don’t know” to SD’s asking “what does this mean?” triggered a 

desire for revenge so strong as to support a false allegation of 

sexual harassment and assault. Appellant’s Brief at 81-82. As 

for the lawsuit, CDC questioned SD at length regarding the 

matter. We find nothing in SD’s testimony to indicate a 

fraudulent intent. To the contrary, the evidence indicates she 

was simply exercising her right to seek compensation for a wrong 

she suffered. 

 The appellant also points to numerous inconsistencies 

between SD’s various statements and in-court testimony. We find 

these to be minor, as her testimony comported in all key aspects 

with the appellant’s description of events. On the one 

important issue where they diverge – consent – SD’s earlier 

statements and testimony are consistent. 

 Accordingly, after carefully reviewing the record of trial 

and considering the evidence in the light most favorable to the 

Government, we are convinced that a reasonable trier of fact 

could have found all the essential elements of abusive sexual 

contact beyond a reasonable doubt. Furthermore, after weighing 

all the evidence in the record and having made allowances for 

not having personally observed the witnesses, we are convinced 

beyond a reasonable doubt of the appellant’s guilt to Charge II. 

 

Post-Trial Matters 
14 

 

The appellant next claims that the military judge had posttrial communications with the members that had a chilling effect 

on his ability to obtain clemency recommendations. He also 

claims the staff judge advocate (SJA) withheld one or more 

clemency recommendations from the CA. 

Post-Trial Order to Members 

 The military judge shall “[i]nstruct the members on 

questions of law and procedure which may arise.” R.C.M.

801(a)(5). “‘The question of whether a jury was properly 

instructed is a question of law, and thus, our review is de 

novo.’” United States v. Maxwell, 45 M.J. 406, 424 (C.A.A.F. 

1996) (quoting United States v. Snow, 82 F.3d 935, 938-39 (10th 

Cir. 1996)). 

 A military judge’s “hearing and ruling upon any matter 

which may be ruled upon by the military judge . . . shall be 

conducted in the presence of the accused, the defense counsel, 

and the trial counsel and shall be made part of the record.” 

Art. 39(a) and (b), UCMJ. Other than when members are voting 

or deliberating, all proceedings “shall be made part of the 

record and shall be in the presence of the accused, the defense 

counsel, the trial counsel, and in cases in which a military 

judge has been detailed to the court, the military judge.” Art. 

39(c), UCMJ. 

 During deliberations on sentencing, a member asked the 

military judge whether it would be possible for the panel to revote on the findings to Specification 4 of Charge II (abusive 

sexual contact). The military judge properly instructed the 

members that, once findings are announced in open court, 

reconsideration is not permitted. R.C.M. 924(a). The appellant 

was sentenced on 13 September 2013. 

Eleven days after trial, CDC sent to the members an e-mail 

explaining the clemency process and seeking their input. Most 

notably, he requested statements from members regarding their 

desire to set aside the findings of guilty on Specification 4 of 

Charge I.10 One of the members, Captain (CAPT) O, responded by 

 

10 The entire email read as follows: 

I am contacting you to follow up on the request you made during 

your sentencing deliberations in the U.S. v. CDR Arvis Owens 

trial. Some or all of you inquired about the procedure for 

reconsideration of your vote regarding Specification 4 of Charge 
15 

saying he preferred to send his response directly to the CA. 

The record does not indicate whether he actually sent anything 

to the CA. Three days later, the President of the courtmartial, CAPT H, forwarded the CDC’s e-mail to the military 

judge, seeking guidance. The judge responded by e-mail on 3 

October 2013, directing CAPT H “to refrain from contacting any 

counsel that is not on the record in open court,” and to “pass 

this order along to the other members.” AE LXXXVII. She 

advised that “[f]urther order of the court will be forthcoming 

via the Trial Counsel.” Id.

 That same day, the military judge issued the following 

order to the members: 

 1. Prior to adjournment in this case, I instructed you as 

follows: 

To assist you in determining what you may discuss 

about this case now that it is over, the following 

guidance is provided. When you took your oath as 

members, you swore not to discover or disclose the 

vote or opinion of any particular member of this 

court, unless required to do so in due course of law. 

This means that you may not tell anyone about the way 

you or anyone else on the court voted or what opinion 

you or they had, unless I or another judge requires 

you to do so in court. You are each entitled to this 

privacy. Other than that limitation, you are free to 

talk about the case to anyone, including me, the 

attorneys or anyone else. You can also decline to 

 II. The judge stated that you may not do so after findings. The 

Manual for Courts-Martial is silent on whether members may 

reconsider after findings. Nonetheless, the final decision on 

all courts-martial convictions is the convening authority. The 

convening Authority may approve, set aside, or approve some and 

set aside others of the charges. He may also grant clemency. I 

intend to request that the convening authority set aside the 

finding of guilty on Specification 4 of Charge II based on your 

request to reconsider. 

My request to the convening authority will receive more favorable 

consideration if I can demonstrate that my request is based on 

the wishes of at least 3 of the 7 members. I, therefore, request 

that you email me a brief email stating that [sic] your desire to 

set aside the finding of guilty on Specification 4 of Charge II. 

This is not a request for your vote, nor are you required to 

disclose your vote. It is only a request for you to individually 

– if you did – restate the request you made during the trial 

regarding that Specification.” AE LXXXVII. 
16 

participate in such a discussion if that is your 

choice. 

Your deliberations are carried out in the secrecy of 

the deliberation room to permit the utmost freedom of 

debate and so that each of you can express your views 

without fear of being subjected to public scorn or 

criticism by the accused, the convening authority, or 

anyone else. In deciding whether to answer questions 

about this case, and if so, what to disclose, you 

should have in mind your own interests and the 

interests of the other members of the court. 

AE LXXXVII. This was a verbatim restatement of the instructions 

she provided the members at the trial’s end. After quoting 

CDC’s e-mail to the members, the military judge went on to 

correct CDC’s incorrect statement of the law regarding R.C.M. 

924(a). She further instructed the members: 

3. Pursuant to R.C.M. 1105(b)(2)(D), it is 

permissible for the Defense to seek from you and for 

you to provide a clemency recommendation to the 

convening authority. 

4. However, pursuant to R.C.M. 923, R.C.M. 1008, 

Military Rule of Evidence (M.R.E.) 606(b) and the 

Discussion to R.C.M. 1105 (b)(2)(D), a clemency 

petition from a member should not disclose the vote or 

opinion of any member expressed in deliberations. 

This prohibition extends to any member’s vote or 

opinion on the following: findings, any request to 

reconsider findings, and sentence. 

Id.

 On 4 October, another member, Commander M, informed the CDC 

that he had e-mailed his recommendation to the SJA. The record 

does not indicate what, if anything, the SJA received from the 

member, although the SJA stated in his recommendation to the CA 

that “[t]here is no clemency recommendation by the sentencing 

authority made in conjunction with the announced sentence.”11 

 

 The defense filed a written objection to the military 

judge’s order on 9 October 2013, and requested a post-trial 

Article 39(a), UCMJ, session. The defense also filed a motion 

 

11 Staff Judge Advocate’s Recommendation of 31 Dec 2013 at 1. 
17 

for a mistrial based on newly discovered evidence. At that 

session the defense indicated it had ceased attempts to contact 

the members, thinking it safer to request the post-trial 

hearing. The defense’s objection, in part, was that in applying 

an impeachment-of-the-findings standard to the defense’s 

request, the military judge mischaracterized the request. The 

military judge explained that her ruling did not characterize 

the defense’s e-mail request in any way. However, she said the 

request “tetered [sic] on asking for a vote[.]” Record at 1416. 

The military judge ruled that the order would stay in 

effect, and denied the defense’s motion for a mistrial. In her 

ruling, the military judge found that CDC’s e-mail to the 

members was “asking for their votes and thoughts behind their 

decisions,” and “[a]sking members who desired a revote to 

restate their request to the Convening Authority effectively 

asked members to reveal their vote in this regard.” AE XCIII at 

5. She clarified, however, that her order “does not forbid or 

otherwise prohibit any member from contacting the Convening 

Authority to discuss matters permitted by the M.C.M.,” nor does 

it “limit[] the ability of defense counsel to seek clemency 

petitions from the members or provide clemency materials to the 

Convening Authority.” Id. at 6. 

 

 With this extensive background, we address the appellant’s 

claim of error. First, the military judge’s e-mail to CAPT H 

violated the requirements of Article 39(b) and (c), UCMJ. 

However, while “violation of Article 39(b) creates a ‘rebuttable 

presumption of prejudice,’” United States v. Thompson, 47 M.J. 

378, 379 (C.A.A.F. 1997) (quoting United States v. Allbee, 18 

C.M.R. 72, 76 (C.M.A. 1955)), we are not left speculating as to 

the content of the military judge’s communications with the 

members.12 The record contains the sum of these communications, 

both in her e-mail to the CAPT H and her supplemental order. 

Accordingly, we are able to review the case for prejudice. We 

find none. 

Second, we find that any error the military judge may have 

committed by issuing her e-mail order without giving the parties 

an opportunity to be heard was cured by the subsequent Article 

39(a), UCMJ, session. The military judge gave both parties a 

chance to state their positions and persuade her to alter her 

order. Had the defense been able to show how the order was in 

 

12 We note that both Allbee and Thompson involved the legal officer/military 

judge communicating with the members during deliberations. That is not the 

case here. 
18 

any way a misstatement of the law, the military judge could have 

revised or rescinded the order. 

Third, in her order the military judge discussed the extent 

to which the defense could seek clemency recommendations from 

the members. Despite any trepidation the defense may have had 

before the hearing, once the military judge reaffirmed and 

clarified her order the defense was free to revisit the matter 

with the members. There is nothing in the record to indicate 

the defense did so. Even assuming the military judge erred in 

the procedural handling of this matter – and further assuming 

the defense’s failure to reengage with the members does not 

constitute forfeiture of the issue - we cannot say the appellant 

has demonstrated any prejudice. 

Finally, we find no error in the language of the order 

itself. The military judge simply restated her earlier 

instructions, corrected CDC’s misstatement of the law, advised 

the members that it was permissible for the defense to request 

(and for the members to provide) a clemency recommendation, and 

reminded the members of their duty not to disclose the vote or 

opinion of any member expressed in deliberations. This order 

was a full, clear, and accurate statement of the law. The 

appellant’s unsupported examples of possible misunderstanding do 

not persuade us otherwise. 

Clemency Matters 

Errors in post-trial processing are reviewed de novo. 

United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000). The Court 

of Appeals for the Armed Forces has identified three 

requirements for “resolving claims of error connected with the 

convening authority’s posttrial review. First, an appellant 

must allege the error at the Court of Criminal Appeals. Second, 

an appellant must allege prejudice as a result of the error. 

Third, an appellant must show what he would do to resolve the 

error if given such an opportunity.” United States v. Wheelus, 

49 M.J. 283, 288 (C.A.A.F. 1998). Furthermore, “there is 

material prejudice to the substantial rights of an appellant if 

there is an error and the appellant makes some colorable showing 

of possible prejudice.” Id. at 289 (internal quotation marks 

and citation omitted). 

Citing to the e-mails of CAPT O and CDR M, the appellant 

claims the SJA withheld clemency recommendations from the CA. 

While neither the SJA’s recommendation (SJAR) nor the addendum 

thereto mentions any such recommendations, the CA, in taking his 
19 

action, states he considered “the email string indicating what 

appears to be messages from members of the court-martial[.]” 

Convening Authority’s Action of 16 Jan 2014 at 4. It appears 

the CA is referencing the emails of CAPT O and CDR M, enclosed 

in the defense’s clemency request. There is no mention in the 

CA’s action of any specific recommendation from CAPT O or CDR M. 

We don’t know whether any members submitted clemency 

recommendations. Due to the statements of CAPT O and CDR M that 

they preferred not to submit their recommendations through CDC 

or had already sent a recommendation directly to the SJA, 

compounded by the SJA’s limited comment that there was “no 

clemency recommendation by the sentencing authority made in 

conjunction with the announced sentence,”13 the defense had no 

way to know the CA had not seen or considered the purported 

recommendations from CAPT O and CDR M. Since the SJA and CA 

were aware of the e-mails in which the two members indicated 

that they would or had submitted such recommendations, and there 

being no evidence in the record to indicate the SJA or CA took 

steps to contact either member and resolve the apparent 

discrepancy, under the specific facts presented, we find it was 

error to leave the question answered. 

Given the members’ role in the proceedings, any clemency 

recommendation from them would likely carry particular weight 

with the CA. The record here indicates two senior officer 

members either intended to or did provide such a recommendation. 

Accordingly, we find the appellant has met the very low 

threshold of “some colorable showing of possible prejudice.” We 

will provide relief in our decretal paragraph. 

Sentence Reassessment 

As we are setting aside part of the conviction, we will 

reassess the sentence in accordance with the principles set 

forth in United States v. Moffeit, 63 M.J. 40, 41 (C.A.A.F. 

2006), United States v. Cook, 48 M.J. 434, 438, (C.A.A.F. 1998), 

and United States v. Sales, 22 M.J. 305, 307-09 (C.M.A. 1986). 

We find no “‘dramatic change in the penalty landscape’ [which] 

gravitates away from the ability to reassess” the sentence in 

this case. United States v. Buber, 62 M.J. 476, 479 (C.A.A.F. 

2006) (quoting United States v. Riley, 58 M.J. 305, 312 

(C.A.A.F. 2003)). For the offenses of which the appellant was 

convicted, the maximum punishment included ten years’ 

confinement, total forfeiture of pay and allowances, and a 

 

13 SJAR at 1 (emphasis added). 
20 

dismissal. Removing Charge I from the calculation only reduces 

the maximum authorized confinement to eight years. The sentence 

awarded by the court-martial was limited to a dismissal, a 

sentence far removed from the potential maximum. 

Additionally, the facts underlying the affirmed charges and 

specifications provide ample justification for the sentence the 

members awarded. The appellant, a senior naval officer, misused 

his rank and position to sexually abuse a junior civil servant 

in the workplace. Accordingly, we are confident that the 

members would have imposed the previously adjudged sentence of a 

dismissal. 

Conclusion 

The findings as to Specification 2 of Charge I and Charge I 

are set aside and that charge and specification are dismissed. 

The CA’s action dated 16 January 2014 is set aside and the 

record of trial is returned to the Judge Advocate General of the 

Navy for remand to an appropriate CA for a new post-trial 

recommendation and action.14 Thereafter the record will be 

returned to the Court for completion of appellate review. 

Boudreaux v. U.S. Navy-Marine Corps Court of Military Review, 28 

M.J. 181 (C.M.A. 1989). 

Senior Judge MCFARLANE and Judge BRUBAKER concur. 

For the Court 

 

 

 

R.H. TROIDL 

Clerk of Court 

 

14 The CA’s Action of 16 January 14 is incorrect in that it fails to reflect 

the merger of various specifications under Charge II, as reflected in AE 

LXXXII (the cleansed charge sheet). While the error is mooted by our decree, 

we point this out so that any future order will not repeat the mistake.