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 Rule 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 Articles 120 and 128, Uniform Code of Military Justice [UCMJ],2 for sexually 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

Appellant asserts nine assignments of error [AOEs], 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 battery are factually insufficient; (3) 

Appellant received ineffective assistance of counsel; (4) trial 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. BACKGROUND

Appellant 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 friends. 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 skating 

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, while hugging her, Appellant grabbed LCpl Whiskey’s buttocks 

without her 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 interviewed 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. Washington agreed. She lay down on 

her stomach and Appellant began massaging her. He then proceeded to pull 

down Ms. Washington’s shorts and underwear. She asked him why he was doing that and explained that only her back hurt. Appellant then held Ms. Washington’s wrists and penetrated her vagina with his penis. Ms. Washington 

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 leave. Ms. 

Washington 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. Washington. Appellant asked if they could talk in her bedroom, but Ms. 

Washington insisted they talk outside where her Ring security system would 

record everything.5 Appellant and Ms. Washington talked for a few minutes 

before Appellant brandished a pocketknife and held it up to Ms. Washington's 

face. Appellant pulled her closer to his car, holding the knife against 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. Washington into the 

back seat of his car. Ms. Washington struggled with Appellant and eventually 

got out of the back seat. Appellant then told to Ms. Washington that he may

have given her a sexually transmitted disease. Ms. Washington ran off and 

Appellant drove away. Appellant then called Ms. Washington and told her she 

should get tested. At this point Ms. Washington 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 adamant 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. Michaels, 

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 Appellant, but 

remained adamant that she 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 provided below. 

II. DISCUSSION

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 inference from the evidence 

of record in favor of the prosecution.”11

In evaluating factual sufficiency, we determine “whether, after weighing 

the 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 Assault

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.

To prove sexual assault as charged, the Government was required to prove 

that: (1) Appellant committed a sexual act upon Ms. Washington by causing 

penetration, however slight, of the vulva by the penis; and (2) he did so without 

Ms. Washington’s consent.15

To prove simple assault as charged, the Government was required to prove 

that: (1) Appellant attempted to do or offered to do bodily harm to Ms. Washington; (2) the attempt or offer was done unlawfully; and (3) the attempt or 

offer was done with force or violence.16

Ms. Washington testified 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 February 2019 and 28 February 2019, by touching her 

buttocks without her consent and with the intent to arouse his sexual desire. 

To prove the offense as charged, the Government was required to prove 

that: (1) Appellant committed sexual contact upon LCpl Whiskey 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, Appellant hugged 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 done 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.

To 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 hand; (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 persuade her to have sex. 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 take 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 factfinder 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 Appellant’s guilt beyond a reasonable doubt and find that 

the evidence is factually sufficient to support Appellant’s convictions.

B. Trial Defense Counsel were Not 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 to 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 first overcome “a 

strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.”26 A military appellate court “will not secondguess the strategic or tactical decisions made at trial by defense counsel.”27 If 

an appellant raises the issue of ineffective assistance of counsel based upon a 

challenge 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 professional norms.’”28 Only after an appellant has

met his burden and has demonstrated both deficiency and prejudice can we 

 

22 United States v. Mazza, 67 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 benefit 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 Counsels’ tactical decision not to challenge Appellant’s 

statement was reasonable

“[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 Appellant has carried his burden to show that his counsel would 

have been successful if he filed a timely motion.”34

Appellant argues that his statements made to law enforcement during his 

interrogation by Detective 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 or 

a person suspected of an offense without first informing him of the nature of the accusation and 

advising him that he does not have to make any 

statement 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 Court has explained that there are at least two scenarios in which civilian law enforcement officers such as Detective Lima working with military investigators 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 furtherance 

of any military investigation, or in any sense as an instrument of the military.”37

In this case, Appellant was interrogated by Detective Lima while Special 

Agent [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 Detective Lima concluded his interview, SA Simmons 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 their declarations on the issue, trial defense counsel explained that they 

discussed 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 it was harmful. Specifically, trial defense counsel explained that the admissions made by Appellant during the interrogation helped raise the argument that Ms. Washington 

 

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 has failed to demonstrate that trial defense counsels’ tactical decision to allow his statements into evidence was “unreasonable under prevailing professional norms.”40 Even if we assume trial defense counsels’ 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 Detective Lima’s interrogation, SA Simmons remained a passive 

bystander and did not question Appellant until he conducted his own interrogation later. Appellant argues that Detective Lima and SA Simmons discussed 

the interrogation before Detective Lima asked Appellant additional questions. 

However, this discussion does not demonstrate that Detective Lima’s additional questions were in furtherance of SA Simmons’s investigation. Indeed, 

rather than have Detective Lima ask questions for him, SA Simmons conducted his own interrogation 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 weight of evidence rested with the 

testimony of the victims. Moreover, the statement on its face permitted Appellant to provide his account without being subjected to cross-examination. We

thus find that Appellant has failed to establish he was prejudiced by trial defense counsels’ 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. Washington.

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 counsels’ tactical decision not to object to trial counsel’s 

closing, rebuttal, and sentencing arguments was reasonable

Appellant argues that his trial defense counsel were ineffective for failing 

to object during trial counsel’s closing, rebuttal, and sentencing arguments in

that trial counsel misstated Ms. Washington’s testimony by claiming that she 

told Appellant “no” and “stop.”41

Trial 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? Trying 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 Appellant 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 acknowledgement of his misconduct. Based on this 

evidence, and civilian defense counsel’s affidavit, in which he stated he felt 

trial counsel 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 improper 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) (Trial counsel did 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 Court 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 counsel did not commit Misconduct 

Appellant argues that trial counsel repeatedly misstated the evidence during his closing and rebuttal arguments. Specifically: (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 argued 

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 trial counsel’s comment is key.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. Fletcher, 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. Hornback, 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-martial”).

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

14

whether 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) there 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, “the lack of a defense objection is ‘some measure 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 the 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 plain 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 strike 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 that the judge’s immediate instruction to the members to disregard the statement was sufficient to address the 

 

52 10 U.S.C. § 859; Fletcher, 62 M.J. at 179.

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

54 Fletcher, 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 improper 

statement.58

3. Appellant’s remaining allegations of error 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 

improperly 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 sentencing 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 refrained 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 Mil.R.Evid. 403 due 

to the fact that the unadjudicated 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 the DD 2713s 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 regulations of the 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, brig observations reports “on DD 2713 provide 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 investigations 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 within the 

Correctional Management 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. 2009).

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 disciplinary 
United States v. Williams, NMCCA No. 202100094

Opinion of the Court

17

Here, like in Davis, the military judge found that Appellant’s brig disciplinary 

reports were personnel records in line with R.C.M. 1001(b)(2). Additionally, the 

military judge appropriately limited the evidence by requiring trial counsel to 

redact large portions of the reports he believed were inadmissible, which eliminated summaries of the alleged misconduct.67

Deference is due to the military judge 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 military judge admitted the evidence under 

R.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 military judge did not abuse his discretion 

when he admitted the Appellant’s brig observation and disciplinary record into 

evidence. 

III. CONCLUSION

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.71

The findings and sentence are AFFIRMED. 

FOR THE COURT:

MARK K. JAMISON

Clerk of Court

 

barracks...is at the same time prison warden and the military commander set over the 

men confined in his penal institution). 

67 R. 1252-52. (Compare Pros. Ex. 10, with Appellate Ex. XXXIV).

68 United 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.