This opinion is subject to administrative correction before final disposition.

Before HOLIFIELD

, STEWART , and HACKEL Appellate Military Judges

_________________________



### UNITED STATES Appellee

v.

Travonte D. WILLIAMS Private First Class (E

- 2 ), U.S. Marine Corps Appellant

No. 202100094

_________________________

Decided: 5 October 2022

Appeal from the United States Navy

- Marine Corps Trial Judiciary

Military Judges : K. Scott Woodard (motions) Kyle G. Phillips (arraignment and trial )

Sentence adjudged 10 December 2020 by a general court

- martial convened at Marine Corps Base Camp Lejeune, North Carolina, consisting of officer and enlisted members. Sentence in the Entry of Judgment : reduction to E

- 1, confinement for 11 years, forfeiture of all pay and allowances

, and a dishonorable discharge

. 1

For Appellant: Major Mary Claire Finnen , USMC

1 Appellant was credited with having served 377 days of pretrial confinement.United States v. Williams, NMCCA No. 202100094 Opinion of the Court

2 For Appellee: Captain Tyler W. Blair, USMC Lieutenant Gregory A. Rustico, JAGC, USN

Senior Judge STEWART delivered the opinion of the Court, in which Chief Judge HOLIFIELD and Judge HACKEL joined.

_________________________

This opinion does not serve as binding precedent, but may be cited as persuasive authority under

NMCCA Ru le of Appellate Procedure 30.2.

_________________________

STEWART

, Senior Judge:
Appellant was convicted , contrary to his pleas, of one specification of sexual assault, one specification of abusive sexual contact, one specification of assault consummated by a battery, and one specification of assault , in violation of Article s 120 and 128 , Uniform Code of Mil itary Justice [UCMJ], 2 for s exually assaulting Ms. Washington

, touching the buttocks of Lance Corporal [LCpl] Whiskey , striking Ms. Michaels on the head with his hand, and holding a knife to the face and neck of Ms. Washington

. 3

A ppellant asserts nine assi gnments of error [ AOE s ], which we combine and
renumber as follows : (1) Appellant’s convictions for sexual assault and abusive sexual contact are legally and factually insufficient ; (2) Appellant’s convictions for assault and assault consummated by a batter y are factually insufficient ; (3) Appellant received ineffective assistance of counsel; (4) t rial counsel committed
misconduct by repeatedly misstating the evidence in closing arguments, as well as improperly using propensity evidence ; (5) the military judge abused his discretion when he admitted Appellant’s brig observational and disciplinary reports into evidence; and (6) Appellant’s right to a unanimous verdict was
violated

. 4 We find no prejudicial error and affirm.

2 10 U.S.C. § § 920, 928

.

3 All names in this in this opinion other than Appellant, the judges, and appellate counsel are pseudonyms.

4 We find Appellant’s sixth AOE lacks merit

. See United States v. Causey , 82 M.J. 574, 586

- 87 (N

- M Ct. Crim App. 2022) (declining to extend the holding in Ramos v.United States v. Williams, NMCCA No. 202100094 Opinion of the Court

3 

### I. B ACKGROUND

Appel lant was convicted of offenses against multiple victims, all of which occurred during 2019.

1. Abusive Sexual Contact of LCpl Whiskey
In February, 2019, Appellant and LCpl Whiskey were living in the same
barracks. According to LCpl Whiskey

, the two were not f riends. However, she agreed to go skating with Appellant because no one else wanted to go. When Appellant tried to pay for her admission to the skating rink

, LCpl Whiskey told him that it was not a date and paid for herself. During their time at the skatin g rink

, Appellant attempted to put his arm around LCpl Whiskey, but she brushed it off.
After sharing a taxi back to the barracks, Appellant walked LCpl Whiskey to her room. He left, but returned and asked for a goodnight hug. They hugged goodnight and

, wh ile hugging her

, Appellant grabbed LCpl Whiskey’s buttocks
without h er consent . She immediately moved him out of her room and closed the door. She did not report the incident immediately, but revealed what had happened three months later when she was inter viewed concerning Appellant’s conduct involving another victim.

2. Sexual Assault and Assault of Ms. Washington
During the summer of 2019, Appellant met Ms. Washington through a mobile phone software application called Monkey. After chatting for a few weeks,
Ms. Washington and Appellant agreed to meet. Appellant drove to Ms. Washington' s home and the two of them watched television in her bedroom and kissed. Appellant offered to give Ms. Washington a back massage because she
had muscle damage in her back and Ms. W ashington agreed. She lay down on her stomach and Appellant began massaging her. He then proceeded to pull
down Ms. W ashington’s shorts and underwear. She asked him why he was doing that and explained that only her back h urt. Appellant then held Ms. W ashington’s wrists and penetrated her vagina with his penis. Ms. W ashington struggled to get up, and Appellant stopped and got off the bed. She got off the bed and pulled her shorts back up, then told Appellant he needed to le ave. Ms.
W ashington walked Appellant to his car and watched him drive away. She then took a shower, sat in bed, and cried. She did not immediately report the assault to law enforcement, but she told her sister what had happened and had

Louisiana , 140 S.Ct. 1390 (2020), to courts

- martial). United States v. Matias , 25 M.J. 356 (C.M.A. 1987).United States v. Williams, NMCCA No. 202100094 Opinion of the Court

4 her sister drive her to the store to purchase a morning

- after emergency contraception pill

. Approximately one month later Appellant returned to the house to talk to
Ms. W ashington

. Appellant asked if they could talk in her bedroom, but Ms.
W ashington insisted they talk outsi de where her Ring security system would record everything. 5 Appellant and Ms. W ashington talked for a few minutes before Appellant brandished a pocketknife and held it up to Ms. W ashington's face. Appellant pulled her closer to his car, holding the knife a gainst her. While holding the knife against her face he asked

, “what if [I] cut [you] here?” He then he moved the knife down to her neck and asked

, “what if [I] cut [you] here, too?” 6 Appellant put the knife away, blocked her from entering the door to her
home and then , after several failed attempts, forced Ms. W ashington into the back seat of his car. Ms. W ashington struggled with Appellant and eventually got out of the back seat. Appellant then told to Ms. W ashington that he may have given her a sexually transmitted disease. Ms. W ashington ran off and Appellant drove away. Appellant then called Ms. W ashington and told her she should get tested. At this point Ms. W ashington called the police to report Appellant’s actions.

3. Assault of Ms. Michaels

In November of 2019, Ms. Michaels met Appellant via a software application called MeetMe. After talking, Appellant and Ms. Michaels agreed to meet and go out to eat. Appellant picked up Ms. Michaels near her house, but instead of driving to a restaurant he drove her to a secluded area and parked off the road. Appellant asked Ms. Michaels what they were about to do, to which she replied “You can take me home.” 7 Appellant attempted to persuade Ms. Michaels to have sex with him, but she was ada mant that she was not interested.
While they continued to sit in his car, Appellant became angry that Ms. Michaels was on her phone and attempted to take it from her. He pulled her hair and hit her in the face. Appellant then took the phone from Ms. Micha els, but gave it back when she threatened to use mace on him. Appellant then snatched the mace out of her hand and threatened to mace her if she did not get into the back seat. Ms. Michaels got into the back seat with App ellant, but
remained adamant that s he was not going to have sex with him. Appellant

5 Pros. Ex. 9. The ring video did not capture Appellant’s actions as the front porch pillar obscures Appellant and Ms. Washington as they approached his car.

6 R. 669.

7 R. 548.United States v. Williams, NMCCA No. 202100094 Opinion of the Court

5 again became violent and tried to pull Ms. Michaels toward him. She fought back and was able to get out of the car. She screamed for help and ran toward the road, where , after a few minutes, she was able to flag down two police officers. Appellant sped away once Ms. Michaels left the car.

Ms. Michaels suffered a split lip from Appellant’s attack. She immediately reported the incident to law enforcement.
Additional facts necessary to address the AOEs are provi ded below.



### II. D ISCUSSION

A. Appellant’s Convictions are Legally and Factually Sufficient
Appellant asserts the evidence is legally and factually insufficient to support his convictions for sexual assault and abusive sexual contact. He asserts that the evidence is factually insufficient to support his convictions for assault consummated by a battery and simple assault

. 8 We review such questions de

novo. 9
To determine legal sufficiency, we ask whether, “ considering the evidence in the light most favorable to the prosecution, a reasonable fact

- finder could have found all the essential elements beyond a reasonable doubt. ” 10 In conducting this analysis, we must “ draw every reasonable inferenc e from the evidence of record in favor of the prosecution. ” 11
In evaluating factual sufficiency, we determine “whether, after weighingthe evidence in the record of trial and making allowances for not having personally observed the witnesses, [we] are . . . convinced of the [appellant’s] guilt beyond a reasonable doubt.” 12 In conducting this unique appellate function, we take “a fresh, impartial look at the evidence,” applying “neither a presumption

8 Although Appellant does not challenge the legal sufficiency of his convictions for assault consummated by a battery and simple assault we nevertheless review the legal sufficiency of every offense in accordance with our mandate under Article 66, UCMJ.

9 Article 66(d)(1), UCMJ; United States v. Washington , 57 M.J. 394, 399 (C.A.A.F. 2002).

10 United States v. Turner , 25 M.J. 324, 324 (C.M.A. 1987) (citing Jackson v. Virginia , 443 U.S. 307, 319 (1979)).

11 United States v. Gutierrez , 74 M.J. 61, 65 (C.A.A.F. 2015) (citation and internal quotation marks omitted).

12 Turner , 25 M.J. at 325.United States v. Williams, NMCCA No. 202100094 Opinion of the Court

6 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.” 13 Proof beyond a “[r]easonable doubt, however, does not mean the evidence must be free from conflict.” 14

1. Sexual Assault and Simple Ass ault
Appellant was found guilty of sexually assaulting Ms. Washington on or about 16 July 2019

, for committing a sexual act upon Ms. Washington by penetrating her vulva with his penis without her consent

. He was additionally found guilty of simple assault against Ms. Washington on or about 15 August 2019 for holding a knife to her face and neck.

T o prove sexual assault as charged, the Government was required to prove that: (1) Appellant committed a sexual act upon Ms. Washington by causing penetration, howe ver slight, of the vulva by the penis; and (2) he did so without Ms. Washington’s consent. 15

T o prove simple assault as charged, the Government was required to prove that: (1) Appellant attempted to do or offered to do b odily harm to Ms. Washington ; (2) the attempt or offer was done unlawfully; and (3) t he attempt or offer was done with force or violence. 16
Ms. Washington testifie d that Appellant penetrated her vulva with his penis, and that he did so without her consent. Ms. Washington further testified
that Appellant grabbed her and brandished a pocket knife

, holding the knife against her face and neck and asking “what if [I] cut [you] here?” 17

2. Abusive Sexual Contact
Appellant was convicted of abusive sexual contact upon LCpl Whiskey between on or about 1 Fe bruary 2019 and 28 February 2019, by touching her
buttocks without her consent and with the intent to arouse his sexual desire.

T o prove the offense as charged, the Government was required to prove
that: (1) Appellant co mmitted sexual contact upon LCpl Wh iskey by touching

13 Washington , 57 M.J. at 399.

14 United States v. Rankin, 63 M.J. 552, 557 (N

- M. Ct. Crim. App. 2006).

15 Art. 120, UCMJ

.

16 Art. 128, UCMJ

.

17 R. at 669.United States v. Williams, NMCCA No. 202100094 Opinion of the Court

7 her buttocks with his hand with the intent to gratify or arouse his sexual desire ; and (2) he did so without LCpl Whiskey’s consent. 18 “ Intent can be shown by circumstantial evidence.” 19
Lance Corporal Whiskey testified that there was no romantic relationship between her and Appellant. She agreed to go ice

- skating with him because no one else was willing to go, but she was clear that it was not a date. She further testified that after getting back to the barracks, A ppellant hu gged her goodnight and grabbed her buttocks without her consent. Appellant’s actions of grabbing LCpl Whiskey’s buttocks, as well as his earlier attempt to put his arm
around her at the skating rink

, provide circumstantial evidence that the grabbing was do ne with the intent to arouse his sexual desire.

3. Assault Consummated by a Battery
Appellant was found guilty of assaulting Ms. Michaels by striking her in
the head with his hand.

T o prove the offense as charged, the Government was required to prove that: (1) Appellant did bodily harm to Ms. Michaels by striking her in the head
with his h an d ; (2) the bodily harm was done unlawfully; and (3) the bodily harm was done with force or violence

. 20 Bodily harm means “ an offensive touching of another, however slight.” 21

Ms. Michaels testified that Appellant drove her to a secluded area, where he attempted to p e rsuade her to have se x. Appellant became angry when Ms.Michaels was on her phone and attempted to take it away from her. She testified that when he tried to tak e her phone Appellant pulled her hair and struck
her in the head with his hand.

4. Appellant’s Convictions are Legally and Factually Sufficient
After weighing the evidence in the record of trial, and making every reasonable inference in favor of the prosecution, we are satisfied a reasonable fact

finder could have found all the essential elements of each charge and specification beyond a reasonable doubt and are legally sufficient to support Appellant’s convictions . Furthermore, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses,

18 Art. 120, UCMJ

.

19 United States v. Acevedo , 77 M.J. 185, 189 (C.A.A.F. 2018).

20 Art. 128, UCMJ

.

21 Manual for Courts

- Martial

, United States , (2019 Ed.) , pt. IV, para 77(c)(1)(a) at IV

- 118.United States v. Williams, NMCCA No. 202100094 Opinion of the Court

8 we are convinced of App ellant’s guilt beyond a reasonable doubt and find that the evidence is factually sufficient to support Appellant’s convictions.

B. Trial Defense Counsel were N ot Ineffective
Appellant asserts that his trial defense counsel were ineffective for failing

to move to suppress the statement Appellant made to law enforcement and for failing to object to portions of trial counsel’s closing, rebuttal, and sentencing arguments.

We review claims of ineffective assistance of counsel de novo. 22 To prevail on such a claim, “an appellant must demonstrate both (1) that his counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice.” 23 The appellant bears the “burden of establishing the truth of factual matters
relevant t o the claim.” 24 Only after an appellant has met his burden and has demonstrated both deficiency and prejudice can we find in the appellant’s favor on an ineffective assistance of counsel claim. 25
To establish the element of deficiency, an appellant must fir st overcome “astrong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” 26 A military appellate court “will not second

guess the strategic or tactical decisions made at trial by defense counsel.” 27 If

an ap pellant raises the issue of ineffective assistance of counsel based upon achallenge against the trial strategy or tactics of the defense counsel, “the appellant must show specific defects in counsel’s performance that were ‘unreasonable under prevailing p rofessional norms.’” 28 Only after an appellant has met his burden and has demonstrated both deficiency and prejudice can we

22 United States v. Mazza , 6 7 M.J. 470, 474 (C.A.A.F. 2009); United States v. Cooper , 80 M.J. 664, 672 (N

- M. Ct. Crim. App. 2020).

23 United States v. Green , 68 M.J. 360, 361

- 62 (C.A.A.F. 2010) (citing Strickland v. Washington , 466 U.S. 668, 687 (1984)) (other citation omitted).

24 Denedo v. United States , 66 M.J. 114, 128 (C.A.A.F. 2008).

25 Cooper , 80 M.J. at 672.

26 United States v. Scott , 81 M.J. 79, 84 ( C.A.A.F. 2021) (quoting Strickland , 466 U.S. at 489).

27 United States v. Anderson , 55 M.J. 198, 201 (C.A.A.F. 2001) (quoting United States v. Morgan , 37 M.J. 407, 410 (C.M.A. 1993)).

28 Mazza , 67 M.J. at 475 (quoting United States v. Perez , 64 M.J. 239, 243 (C.A.A.F. 2006)) (cleaned up).United States v. Williams, NMCCA No. 202100094 Opinion of the Court

9 find in the appellant’s favor on an ineffective assistance of counsel claim. 29 Strategic decisions to accept or forgo a potential bene fit are not deficient when the decisions are objectively reasonable. 30 Furthermore, “it is not necessary to decide the issue of deficient performance when it is apparent that the alleged deficiency has not caused prejudice. ” 31

1. Trial Defense Counsel s’ tactica l decision not to challenge Appellant’s
statement was reasonabl e “[W]hen a claim of ineffective assistance of counsel is premised on counsel’s failure to make a motion . . . an appellant must show that there is a reasonable probability that such a motion would have been meritorious.” 32 In this regard, the term “meritorious” is synonymous with “successful.” 33 “[T]he decisional issue is whether A ppellant has carried his burden to show that his counsel would have been successful if he filed a timely motion.” 34

A ppellant argues that his statements made to law enforcement during his interrogation by D etective Lima of the New Hanover County Sheriff’s Office should have been suppressed because Appellant was not advised of his rights
under Article 31(b) , UCMJ, before being questioned.
According to Article 31(b), UCMJ,
No person subject to this chapter may interrogate, or request any statement from an accused ora person suspected of an offense without first informing him of the nature of the accusation and advising hi m that he does not have to make anystatement regarding the offense of which he is accused or suspected and that any statement made

29 Cooper , 80 M.J. at 672.

30 United States v. Datavs , 71 M.J. 420, 424 (C.A.A.F. 2012).

31 United States v. Bradley , 71 M.J. 13, 16 (C.A.A.F. 2012). See also, Strickland

, 466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.”).

32 United States v. Jameson , 65 M.J. 160, 163

- 64 (C.A.A.F. 2007) (quoting United States v. McConnell , 55 M.J. 479, 482 (C.A.A.F 2001) (motion to suppress evidence)).

33 Id. at 164.

34 Id.United States v. Williams, NMCCA No. 202100094 Opinion of the Court

10 by him may be used as evidence against him in a trial by court

- martial. 35
Additionally, under Military Rule of Evidence [Mil. R. Evid.] 305, “person subject to the code” includes “a knowing agent of any such person.” 36 Our superior C ourt has explained that there are at least two scenarios in which civilian law enforcement officers such as Detective Lima working with military inve stigators must comply with Article 31(b) : “(1) When the scope and character of the cooperative efforts demonstrate ‘ that the two investigations merged into an indivisible entity ’ and (2) when the civilian investigator acts in furtheranceof any military investigation, or in any sense as an instrument of the military. ” 37

In this case, Appellant was interrogated by D etective Lima while Special
A gent [SA] Simmons of the Naval Criminal Investigative Service [NCIS ] was in the room observing the interrogation. Appellant was read his Miranda rights by Detective Lima before questioning but was not given specific warnings under Art. 31(b). 38 When D etective Lima concluded his interview, SASimmo n s conducted his own interrogation after advising Appellant of his 31(b) warnings. Prior to interrogating Appellant, Detective Lima had discovered through several law enforcement databases that NCIS was also separately investigating Appellant on multiple allegations of sexual assault. He spoke with another NCIS agent, SA Franks

, multiple times to coordinate an interview with Appellant. He met with SA Franks the day before the interview and exchanged investigation reports with her as he continued investigating Ms. Washington’s allegations.

In thei r declarations on the issue, trial defense counsel explained that theydiscussed the possibility of moving to suppress Appellant’s statements but ultimately made a tactical decision not to do so because allowing the statements into evidence was more beneficial to Appellant’s case than i t was harmful. Specifically, trial defense counsel explained that the admissions made by Appellant during the interrogation helped raise the argument that Ms. W ashington

35 Art. 31(b), UCMJ.

36 Mil. R. Evid. 305(b)(1).

37 United States v. Brisbane , 63 M.J. 106, 111 (C.A.A.F. 2006) (internal quotations and citations omitted).

38 Miranda v. Arizona , 384 U.S. 436 (1966).United States v. Williams, NMCCA No. 202100094 Opinion of the Court

11 only made her allegation of sexual assault after Appellant informed her that he may have given her a sexually transmitted disease. 39
Appellant ha s failed to demonstrate that trial defense counsel s ’ tactical decision to allow his statements into evidence was “unreasonable under prevailing professional norms.” 40 Even if we assume trial defense counsel s ’ decision was unreasonable, Appellant has failed to show that a motion to suppress his
statements made to Detective Lima would have been meritorious. Although SA Simmons was present during Detective Lima’s interrogation, the record does not demonstrate that the two investigations merged into an indivisible entity, nor that Detective Lima was acting in furtherance of any military investigation. During D etective Lima’s interrogation

, SA Simmons remained a passive bystander and did not question Appellant until he con ducted his own interrogation later. Appellant argues that Detective Lima and SA Simmons discussed the interrogation before Detective Lima aske d Appellant additional questions. However, this discussion does not demonstrate that Detective Lima’s additional questions were in furtherance of SA Simmon s ’s investigation. Indeed,rather than have Detective Lima ask questions for him, SA Simmons conducted his own inte rrogation of Appellant after Detective Lima had finished.
Because Appellant has failed to prove that trial defense counsel ’s tactical decision not to challenge the admission of his statements to Detective Lima

was unreasonable and has further failed to demonstrate that a motion to suppress those statements had a reasonable probability of success

, he fails to show that his trial defense counsel were ineffective for failing to file a motion to suppress based on the alleged violation of Article 31(b). Furthermore, even assuming that a motion to suppress Appellant’s statements would have been successful

, we do not believe that the suppression of such evidence would have resulted in a different result at trial as the w eight of evidence rested with the testimony of the victims

. Moreover, t he statement on its face permitted Appellant to provide his account without being subjected to cross

- examination. We thus find that Appellant has failed to es tablish he was prejudiced by trial defense counsel s ’ alleged error.

39 Contrary to Appellant’s claim in his brief, his denial of sexual assault and later admission that he returned at a later date to inform Ms. Washington that he may have given her a sexually transmitted disease are not contradictory under these facts . During his interrogation, Appellant explained to Detective Lima that he kissed Ms. Washington and believed that he may have transmitted something to her while kissing. He continued to deny that he ever engaged in sexual intercourse with Ms. Wa shington.

40 Mazza , 67 M.J. at 475 (internal citation and quotation omitted).United States v. Williams, NMCCA No. 202100094 Opinion of the Court

12 2. Trial defense counsel s ’ tactical decision not to o bject to trial counsel ’s

c losing, r ebuttal, and s entencing a rgument s was reasonable
Appellant argues that his trial defense counsel were ineffective for failing to object during tr i a l counsel ’s closing, rebuttal, and sentencing arguments in
that trial counsel mis s tated Ms. Washington’s testimony by claiming that she told Appellant “no” and “stop.” 41

T rial counsel argued,

The defense counsel focused on reasonable mistake of fact as to consent, meaning if he reasonably believed she wanted to have sex then he’s not guilty. Well, he may have believed that at some point. But the second she said; no. Stop. What are you doing? Tr ying to pull her shorts up; no. What

are you doing? Stop. The second she did that, that defense is eliminated. And that’s what happened
in this case. 42
When Ms. Washington testified that, shortly after asking Appellant “what are you doing ? ” and “why ? ” Appellant pinned her hands above her head while she was still lying face down on the bed. Once Appellant inserted his penis into Ms. Washington’s vagina against her will, she detailed how she “gritted her teeth and tr[ied] to raise up,” as an attempt to get A ppellant off of her. Ms. Washington also testified that after she finally got Appellant off of her, he said he was sorry in an attempt to make the situation die down. This illustrated Appellant’s awareness and ack nowledgement of his misconduct. Based on this evidence, and c ivilian d efense c ounsel’s affidavit, in which he stated he felt
trial c ounsel had struck “hard blows, but not foul blows,” 43 trial counsel’s closing arguments relating to Ms. Washington telling Appellant “no” and “stop” were not impro per and were a reasonable characterization of her testimony drawn from the evidence as a whole. 44

41 R. at 1184.

42 R. at 1184.

43 Aff. of civilian defense counsel

, at 2 (quotations removed).

44 See United States v. Patrick , 78 M.J. 687 (N

- M. Ct. Crim. App. 2018) (T rial counsel di d not commit misconduct but made “reasonable inferences from the evidence,”when he claimed male DNA found inside the victim’s vagina proved the appellant penetrated the victim

. The C ourt looked at the totality of the DNA expert’s testimony to “conclude the comments [were] not a misrepresentation.” )United States v. Williams, NMCCA No. 202100094 Opinion of the Court

13 C. Trial c ounsel did not commit Misconduct
Appellant argues that trial counsel repeatedly misstated the evidence during his closing and rebuttal arguments

. Speci fically: (1) that he improperly argued propensity evidence to prove Appellant’s guilt ; (2) that he improperly commented on Appellant’s invocation of a constitutional right ; (3) that he maligned Appellant’s counsel and argument ; (4) that he impermissibly a rgued that the members would be doing their “duty” and “doing justice” by convicting Appellant ; and , (5) that his sentencing argument was improper because he focused on “justice for the victims.”
“Improper argument is one facet of prosecutorial misconduct. ” 45 Prosecutorial misconduct occurs when trial counsel “oversteps the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense.” 46 Such conduct “can be generally defined as
action or inaction by a prosecutor in violation of some legal norm or standard,e.g., a constitutional provision, a statute, a Manual rule, or an applicable professional ethics canon.” 47

The context of t rial c ounsel’s comment is ke y. 48 Challenged argument is reviewed not based “on words in isolation, ” but “must be viewed within the context of the entire court

- martial. ” 49 “When a trial counsel makes an improper argument during findings, ‘reversal is warranted only when the trial counsel’ s comments taken as a whole were so damaging that we cannot be confident that the members convicted the appellant on the basis of the evidence alone.’” 50
When the accused objects to an improper argument during his court

- martial, we review the issue de novo

. 51 In that de novo review, we determine

45 United States v. Sewell , 76 M.J. 14, 18 (C.A.A.F. 2017).

46 United States v. Fle t c h er , 62 M.J. 175, 178 (C.A.A.F. 2005) (quoting Berger v. United States , 295 U.S. 78, 84, 55 (1935)).

47 United States v. Horn back , 73 M.J. 155, 160 (C.A.A.F. 2014) (quoting United States v. Meek , 44 M.J. 1, 5 (C.A.A.F. 1996)).

48 United States v. Carter , 61 M.J. 30, 33 (C.A.A.F. 2005) (“A prosecutorial comment must be examined in light of its context within the entire court

- marti al ”).

49 United States v. Baer , 53 M.J. 235, 238 (C.A.A.F. 2000) (citing United States v. Young , 470 U.S. 1, 16 (1985)) (internal quotation marks omitted).

50 United States v. Norwood , 81 M.J. 12, 19 (C.A.A.F. 2021) (quoting United States

v. Andrews , 77 M.J. at 393, 401

- 02 (C.A.A.F. 2018) ).

51 United States v. Voorhees , 79 M.J. 5, 9 (C.A.A.F. 2019).United States v. Williams, NMCCA No. 202100094 Opinion of the Court

14whether any error materially prejudiced the appellant's substantial rights under Article 59, UCMJ. 52 On the other hand, “where . . . no objection is made, we review for plain error.” 53 “Plain error occurs when (1) ther e is error, (2) the error is plain or obvious, and (3) the error results in material prejudice to a substantial right of the accused.” 54 The burden of proof under a plain error
review is on the appellant

, 55 and, “ t he lack of a defense objection is ‘some mea sure of the minimal impact of a prosecutor's improper comment.’” 56

1. Misstatement of the Evidence
Appellant argues that trial counsel committed error by repeatedly misstating the evidence, specifically

, Ms. Washington’s testimony about what happened during t he sexual assault. As stated above, we find trial counsel’s arguments were not improper

, but a reasonable characterization drawn from the
evidence as a whole

. Even assuming trial counsel’s arguments did constitute error, we find that the error was not plai n or obvious, and that Appellant has not demonstrated that his substantial rights were materially prejudiced.

2. Propensity Evidence
Appellant argues that trial counsel improperly argued propensity evidence.During the trial counsel’s closing argument and rebuttal, civilian defense counsel objected once, when trial counsel stated: “Members, there’s few things that we know for absolute certainty in this world. One thing we do know, is that lightning does not st rike the same place five times.” 57 The military judge sustained the objection and immediately instructed the members to disregard the statement. Having considered trial counsel’s statement in the context of the

court

- martial as a whole, we are convinced tha t the judge’s immediate instruction to the members to disregard the statement was sufficient to address the

52 10 U.S.C. § 859; Fle tc her , 62 M.J. at 179.

53 Voorhees , 79 M.J. at 9 (citing Andrews , 77 M.J. at 398).

54 Fle tc her , 62 M.J. at 179 (citation omitted).

55 See United States v. Bungert , 62 M.J. 346, 348 (C.A.A.F. 2006).

56 United States v. Gilley , 56 M.J. 113, 123 (C.A.A.F. 2001) (quoting United States v. Carpenter , 51 M.J. 393, 397 (C.A.A.F. 1999)).

57 R. 1187.United States v. Williams, NMCCA No. 202100094 Opinion of the Court

15 improper argument . Further, we are confident that the members convicted Appellant based on the evidence alone and not due to the trial counsel’s imp roper statement. 58

3. Appellant’s remaining allegations of erro r do not constitute plain error
We test Appellant’s remaining allegations for plain error because they were not objected to at trial. Specifically, we review his assertions that trial counsel impro perly commented on Appellant’s invocation of a constitutional right, that he maligned Appellant’s counsel and argument, that he impermissibly argued that the members would be doing their “duty” and “doing justice” by convicting Appellant, and that his sent encing argument was improper because he focused on “justice for the victims

. ”
Having reviewed Appellant’s allegations and considering trial counsel’s arguments in context of the court

- martial as a whole, we are satisfied that trial counsel did not engage in improper argument and there was no error. Trial counsel’s arguments fell within the realm of professional norms expected of officers of the court, were reasonable inferences of the evidence, fair responses to the Defense closing argument, and refrain ed from commenting on Appellant’s constitutional right to remain silent. Even assuming trial counsel’s arguments did constitute error, we find that the error was not plain or obvious,and that Appellant has not demonstrated that his substantial rights were materially prejudiced.

D. The Military Judge did not Abuse His Discretion in Admitting Appellant’s Brig Observation and Disciplinary Record
Appellant objected to the Government’s introduction of his brig observational and disciplinary reports in its sentencing case

. Particularly, Appellant takes issue with the Government’s assertion that the records are admissible
under Rule for Courts

- Martial [ R.C.M. ] 1001(b)(2) by asserting they were personnel records , unduly prejudicial and inadmissible under M il .R. E vid . 403 due to the fact that the un adjudicated misconduct allegations would overshadow the offenses for which he was found guilty. The military judge determined that the DD 2713 (Prisoner Observation Report) and DD2714 (Prisoner Disciplinary Report/Action) were admissible under R.C.M. 1001(b)(2) (personal data and character of prior service of the accused), but not R.C.M. 1001(b)(3) (evi-

58 We note that the members acquitted Appellant of seven out of eleven specifications of the charges he faced, which further convinces us that they were not improperly influenced by trial counsel’s claim and evaluated each specification individually.United States v. Williams, NMCCA No. 202100094 Opinion of the Court

16 dence of prior convictions of the accused). He also ordered the synopsis of allegations and narrative redacted in each of t he DD 271 3 s and did not allow statements appended to the records.
R.C.M. 1001(b)(2) permits trial counsel to submit evidence of the accused’s “character of prior service” from “personnel records of the accused” which are governed by “the r egulations of t he Secretary concerned.” 59 This includes “copies of reports reflecting the past military efficiency, conduct, performance, and history of the accused and evidence of any disciplinary actions.” Per SECNAV
M

- 1640.1 , b rig observations reports “on DD 2713 prov ide a means of formally documenting...minor infractions.” 60 Disciplinary reports on “DD 2714” document “serious offenses” or “a pattern of unacceptable behavior such as a series of documented minor infractions in a short time period.” 61 “Copies of all invest igations and [disciplinary board] proceedings will become a part of the prisoner’s confinement record

. . . [a] disciplinary log must be maintained to record each [disciplinary report]

. . . this log information will be populated with in the Correctional M anagement Information System.” 62
We review a military judge’s decision to admit sentencing evidence for an abuse of discretion. 63 This standard of review “recognizes that a judge has a range of choices and will not be reversed so long as the decision remains within that range.” 64 Abuse of discretion is a strict standard, calling for more than a mere difference of opinion; it must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous. 65

In United States v. Davis

, our superior Court highlighted R.C .M. 1001(b)(2)’s simple definition that personnel records “include [ ] any records made or maintained in accordance with departmental regulations that reflect past military efficiency, conduct, performance, and history of the accused.” 66

59 R.C.M. 1001 (b)(2)

.

60 SECNAV M

- 1640.1 § 5102.2.d (May 15, 2019)

61 Id . at § 5102.2.e.

62 Id . at § 5102.3.3.11

63 United States v. Stephens , 65 M.J. 233, 235 (C.A.A.F. 200 9 ).

64 United States v. Gore , 60 M.J. 178, 187 (C.A.A.F. 2004).

65 United States v. White , 69 M.J. 237, 239 (C.A.A.F. 2010) (citations omitted).

66 United States v. Davis , 44 M.J. 13, 20 (C.A.A.F. 1996) (citing United States v. Vaughn , 3 C.M.A. 121, 124 (C.M.A. 1953) (“The commandant of a military disciplinaryUnited States v. Williams, NMCCA No. 202100094 Opinion of the Court

17 Here, like in Davi s , the military judge found that Appellant’s brig disciplinary reports were personnel records i n line with R.C.M. 1001(b)(2). Additionally, the

m ilitary j udge appropriately limited the evidence by requiring t rial c ounsel to redact large portions of the rep orts he believed were inadmissible, which eliminated summaries of the alleged misconduct. 67

Deference is due to the m ilitary j udge in this case. Any evidence admitted under R.C.M. 1001(b)(2) is still subject to the balancing test of Mil. R. Evid.
403. 68 Courts give deference to a military judge who articulates the balancing
test on the record. 69 Here, the m ilitary j udge admitted the evidence underR.C.M. 1001(b)(2), appropriately limited the scope of the evidence, and evaluated the evidence under Mil. R. Evid. 403 and placed his reasoning on the record. 70 Consequently, we find the m ilitary j udge did not abuse his discretion
when he admitted the Appellant’s b rig o bservation and d isciplinary r ecord into
evidence.



### III. C ONCLUSION

After careful consideration of t he 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. 71

T he findings and sentence are AFFIRMED

.

FOR THE COURT:

MARK K. JAMISON Clerk of Court

barracks...is at the same time prison warden and the mi litary commander set over the men confined in his penal institution).

67 R. 1252

- 52. (Compare Pros. Ex. 10, with Appellate Ex. XXXIV).

68 U nited States v. Jerkins , 77 M.J. 225, 229 (C.A.A.F. 2018).

69 United States v. Manns , 54 M.J. 164, 166 (C.A.A.F. 2000); see also United States v. Halfacre , 80 M.J. 656, 661

- 62 ( N

- M. Ct. Crim. App. 2020)

.

70 See Halfacre , 80 M.J. at 661

- 62.

71 Articles 59 & 66, UCMJ

.