UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

No. ACM S32631 (f rev)

________________________

UNITED STATES

Appellee

v.

Tymon C. BLOW

Airman Basic (E-1), U.S. Air Force, Appellant

________________________

Appeal from the United States Air Force Trial Judiciary

Upon Further Review

Decided 23 August 2022

________________________

Military Judge: Mark W. Milam; Andrew R. Norton (remand).

Sentence: Sentence adjudged on 21 August 2019 by SpCM convened at 

Royal Air Force Mildenhall, United Kingdom. Sentence entered by military judge on 2 October 2019 and re-entered on 3 June 2021: Bad-conduct discharge, confinement for 5 months, and a reprimand.

For Appellant: Lieutenant Colonel Lance J. Wood, USAF; Major Ryan 

S. Crnkovich, USAF; Major Benjamin H. DeYoung, USAF; Major David 

A. Schiavone, USAF; Mark C. Bruegger, Esquire.

For Appellee: Lieutenant Colonel Matthew J. Neil, USAF; Major Jessica 

L. Delaney, USAF; Major Abbigayle C. Hunter, USAF; Major John P. 

Patera, USAF; Major Brittany M. Speirs, USAF; Mary Ellen Payne, Esquire.

Before JOHNSON, KEY, and ANNEXSTAD, Appellate Military Judges.

Chief Judge JOHNSON delivered the opinion of the court, in which Senior Judge KEY and Judge ANNEXSTAD joined.

________________________

This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 30.4.
United States v. Blow, No. ACM S32631 (f rev)

2

________________________

JOHNSON, Chief Judge:

Appellant’s case is before this court for the second time. A special courtmartial composed of a military judge alone found Appellant guilty, contrary to 

his pleas, of two specifications of failure to obey a lawful order and one specification of assault consummated by battery in violation of Articles 92 and 128, 

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 928, respectively.

1

The military judge sentenced Appellant to a bad-conduct discharge, confinement for five months, and a reprimand. The convening authority originally 

took “no action” on the sentence, but provided the language of the adjudged 

reprimand. The military judge signed an entry of judgment reflecting the adjudged findings and sentence.

In Appellant’s initial appeal to this court he raised four assignments of error: (1) whether the evidence supporting Appellant’s conviction for assault consummated by a battery is legally and factually sufficient; (2) whether the military judge abused his discretion when he permitted the introduction of certain 

rebuttal evidence; (3) “whether Appellant’s sentence is inappropriately severe 

compared to the sentence of his co-actor;” and (4) whether the convening authority’s failure to take action on the sentence required remedial action. This 

court determined that remand to the Chief Trial Judge, Air Force Trial Judiciary, was warranted with regard to issue (4), and we deferred resolution of the 

remaining issues. United States v. Blow, No. ACM S32631, 2021 CCA LEXIS 

232, at *2, *7 (A.F. Ct. Crim. App. 14 May 2021) (unpub. op.).

On remand, the convening authority took action on the entire sentence and 

a military judge properly re-entered the judgment of the court-martial. The 

record has returned to this court for completion of our review pursuant to Article 66(d), UCMJ, 10 U.S.C. § 866(d). In addition to the issues previously deferred, Appellant now personally asserts two additional assignments of error 

pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982): (5) whether 

Appellant’s election to be tried by the military judge alone was improvident in 

light of the unanimous jury verdict requirement announced in the United 

States Supreme Court’s decision in Ramos v. Louisiana, 140 S. Ct. 1390 (2020); 

and (6) whether the military judge abused his discretion by admitting closed 

circuit television (CCTV) video depicting the charged assault consummated by 

a battery. We have carefully considered Appellant’s arguments with respect to 

issue (5) and find that issue does not require discussion or warrant relief. See 

 

1 References to Article 128, UCMJ, are to the Manual for Courts-Martial, United States

(2016 ed.). Unless otherwise specified, all other references to the UCMJ and the Rules 

for Courts-Martial are to the Manual for Courts-Martial, United States (2019 ed.).
United States v. Blow, No. ACM S32631 (f rev)

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United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987); see also United States 

v. Anderson, No. ACM 39969, 2022 CCA LEXIS 181, at *57 (A.F. Ct. Crim. 

App. 25 Mar. 2022) (unpub. op.) (finding unanimous court-martial verdicts not 

required in light of Ramos), rev. granted, ___ M.J. ___, 2022 CAAF LEXIS 529 

(C.A.A.F. 25 Jul. 2022). With regard to issue (1), we find certain language in 

the Specification of Charge I (assault consummated by battery) is not factually 

sufficient, and we except certain language therefrom and reassess the sentence. With regard to the remaining issues, we find no error materially prejudicial to Appellant’s substantial rights, and we affirm the findings, as modified,

and the sentence, as reassessed.

I. BACKGROUND

In November 2018, Appellant was a 21-year-old Airman stationed at Royal 

Air Force (RAF) Mildenhall, United Kingdom. On the night of 24–25 November 

2018, Appellant and three other Airmen—Airman (Amn) NB, Amn MO, and 

Senior Airman (SrA) DG—traveled to a nightclub in Cambridge, United Kingdom.2 Appellant was involved in an altercation outside the club between the 

Airmen and several British citizens, including RM, which resulted in Appellant’s conviction for assault consummated by a battery against RM. The details 

of this incident were the subject of dispute at trial, and we address the evidence 

regarding this offense in detail below. Initially, British police investigated the 

incident, but British authorities eventually transferred the case to the United 

States Air Force for prosecution.

On 22 March 2019, Appellant received an order from his squadron commander “restrain[ing]” Appellant from initiating any contact or communication with Amn NB, and requiring Appellant to remain at least 500 feet away 

from Amn NB until 22 July 2019. On 26 March 2019, Appellant received an 

order from his squadron commander restricting him to the limits of RAF Mildenhall for 60 days, i.e. until 25 May 2019. However, on 12 May 2019, in violation of both orders, Appellant travelled in a car with Amn NB and two other 

Airmen from RAF Mildenhall to a nightclub in the town of Peterborough. Appellant’s misconduct came to light after, on the drive back to RAF Mildenhall, 

the Airman driving the car lost control and crashed into a body of water. Following this incident, Appellant was held in pretrial confinement from 14 May 

2019 until he was sentenced on 21 August 2019.

 

2 Airman NB was the subject of a separate special court-martial previously reviewed 

by this court. United States v. Bah, No. ACM S32634, 2021 CCA LEXIS 348 (A.F. Ct. 

Crim. App. 9 Jul. 2021) (unpub. op.), rev. denied, 82 M.J. 118 (C.A.A.F. 2021). 
United States v. Blow, No. ACM S32631 (f rev)

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II. DISCUSSION

A. Legal and Factual Sufficiency of Assault Consummated by Battery

1. Additional Background

Appellant challenges the legal and factual sufficiency of his conviction for 

striking RM “in the body and head with a belt and his hand.” Accordingly, we 

address in some detail the relevant evidence adduced at trial.

a. The CCTV Video

The Government introduced video recorded by a CCTV security camera 

across the street from where the charged assault took place. The figures depicted in the video are blurry and indistinct. However, Appellant is visible in 

the video and, based on witness testimony and other photographic evidence, 

identifiable due in large part to the distinctive dark jacket with a fur-lined 

hood he was wearing. The video appears to depict the following sequence of 

events.

The victim, RM, and his three civilian companions are walking away from 

the club on a sidewalk between a street and the wall of a church. Appellant 

and three other Airmen—Amn NB, Amn MO, and SrA DG—follow and overtake RM from behind. In particular, Amn NB approaches RM from the right 

side and Appellant approaches from the left. Amn NB appears to initiate the 

assault by lunging at RM, and he appears to strike RM’s head with his hand. 

RM recoils away from Amn NB and toward Appellant, who appears to lash at

or whip RM with something in his right hand, once and perhaps twice. RM

then moves away from Appellant, surrounded by several other figures, toward 

a parked van. Appellant follows the group toward the van; Appellant keeps his 

right arm out to the side as if he were holding something, although no item can 

be discerned at this point due to the poor quality of the video. RM and two 

other figures—RM’s male friend D and Appellant’s companion SrA DG—then 

fall to the ground in front of Appellant, Amn NB, and Amn MO; as they fall, 

Appellant again apparently lashes or whips at one of the falling figures with 

an item in his hand.

After the figures fall, Appellant twice lashes violently at a figure on the 

ground with the item in his hand, while Amn NB and Amn MO strike at figures 

on the ground with their hands and feet, and SrA DG regains his feet. One of 

RM’s female companions then pushes Appellant to one side, but he returns to 

the fallen figures and lashes once again at someone on the ground. At this 

point, RM’s friend D gets to his feet and scrambles away; as he does so, Appellant appears to strike D with his left hand and then lash at D once with the 

item in his right hand. Appellant is then again pushed away by one of RM’s 

female companions. The Airmen withdraw a short distance, although still in 

the frame of the camera, as RM is helped to his feet and eventually moved next 
United States v. Blow, No. ACM S32631 (f rev)

5

to the wall of the church. Although the confrontation between the Airmen and 

RM’s companions continues for approximately two more minutes, with some 

blows exchanged, no further assaults are perpetrated on RM. At one point, Appellant appears to be holding a belt-like item in his hand. Eventually the Airmen flee down the alley back toward the club as British police arrive, and the 

video ends.

b. RM’s Testimony

RM testified that on the night of 24–25 November 2018, he, his friend D, 

and two female acquaintances went to the club to celebrate a birthday. At one 

point, RM and one of the women were at the smoking area outside the club 

when SL, the other woman in his group, came outside. RM heard “American 

voices calling [SL] a ho, and derogatory sort of terms.” RM responded by telling 

the Americans, whom he had not met before, “‘You shouldn’t be speaking to 

[SL] like that. You’re not in Brooklyn or wherever,’ to that sort of extent.” The 

Americans’ reaction to RM was verbally “quite hostile,” but SL finished her 

cigarette and RM and the two women went back inside the club.

RM and his group later left the club. Over the course of the night, RM estimated he had drunk two bottles and one can of beer and two glasses of champagne. He testified that at the point he left the club he was not drunk and was 

“in control of his faculties.” 

RM testified that after he left the club, in his “peripheral view” he saw one 

of the individuals from the incident at the club, wearing a “white baseball cap 

and white zip-up jacket,” with “something swished around his hand.” RM then 

felt a “massive blow on top of [his] skull,” after which the hood of his jacket was 

pulled over his head and he was struck repeatedly in the head from “both 

sides.” RM then fell to the ground, where he was “kicked and punched unconscious.” RM, who was 51 years old at the time of the assault, denied having 

any weapons with him and could not remember if he fought back against his 

assailants. RM testified that as a result of the assault he suffered a cut on top 

of his head, his ribs hurt, and he had experienced tinnitus “ever since.”

c. Bystander Testimony

The Government called PS, a British civilian who was walking nearby with 

his girlfriend and another female friend, LM, when the incident occurred. PS 

could not tell how the fight started, although it looked like one “older” individual “had been jumped on by a group from behind, and they sort of run him into 

a taxi that was by the road, and then taken him to the ground after that.” PS’s

“main memory” of the incident was that he “saw a weapon.” PS testified: “At 

the time it looked like a stick, or a rod, about 2 feet in length, and somebody 

was swinging overarm, downwards onto somebody who, I think, was already 

on the ground at that point.” He continued: “Later, after things had broken up, 
United States v. Blow, No. ACM S32631 (f rev)

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I saw the same person holding a belt in his hand.” PS agreed that the person 

holding the belt “looked to be striking another individual.” After the assault, 

LM assisted the victim, who was bleeding from his head and lost consciousness 

for a period of time.

PS’s friend LM also testified regarding the incident. She observed “an older 

gentleman” in a fight with several other men, during which he was “punched,” 

went “down on the ground,” and “was kicked repeatedly to the head, and 

punched and kicked in the stomach.” LM confirmed there were “definite connections.” As the fight “abated,” LM—who had medical training—assisted RM 

and moved him away from the continuing confrontation and to the side of the 

church. LM testified RM had a cut on his head and lost consciousness for approximately 30 seconds at one point.

Neither PS nor LM specifically identified Appellant as being involved in 

the incident, or attributed any specific actions to him.

d. SrA DG’s Testimony

The Government called SrA DG, an acquaintance of Appellant’s and part 

of the group that travelled with Appellant from RAF Mildenhall to Cambridge 

on the night of 24–25 November 2018. SrA DG remembered an argument at 

the club between Appellant and a “British guy,” who hit Appellant. SrA DG 

testified he did not remember what the argument was about or what was said, 

and that the club’s security guards broke up the incident and escorted the Airmen out. Trial counsel played the CCTV video during SrA DG’s testimony, and 

SrA DG identified Appellant, Amn NB, and himself in the video. SrA DG testified he ran away when the police arrived; however, he stopped when the police ordered him to. SrA DG was arrested, handcuffed, and briefly detained 

before being released without being charged.

e. Police Testimony

The Government called three British police officers to testify. Collectively, 

their testimony established that Appellant and Amn NB were arrested by the 

British police in Cambridge near the scene of the assault on RM. Both were 

photographed wearing distinctive clothing that assisted in identifying them 

from the CCTV video. In addition, the police seized a belt from Appellant. The 

police did not note any injuries or blood on Appellant at the time of his arrest.

f. Staff Sergeant ER’s Testimony

The Defense introduced the testimony of Staff Sergeant (SSgt) ER, who was 

at the same club on the night in question but not as part of Appellant’s group. 

SSgt ER testified he saw Appellant, Amn NB, Amn MO, and another Airman 

at the club. SSgt ER did not witness the incident between Appellant’s group 

and RM. However, he saw the aftermath including “someone on the ground 
United States v. Blow, No. ACM S32631 (f rev)

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who looked like he was in rough shape,” and he saw Appellant, Amn NB, and 

Amn MO together shortly thereafter. SSgt ER further testified he had seen the 

CCTV video and was able to identify Amn MO, who had been wearing a white 

bandana on his head that night.

2. Law

We review issues of legal and factual sufficiency de novo. United States v. 

Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (citation omitted). “Our assessment of legal and factual sufficiency is limited to the evidence produced at 

trial.” United States v. Rodela, 82 M.J. 521, 525 (A.F. Ct. Crim. App. 2021) 

(citation omitted), rev. denied, ___ M.J. ___, No. 22-0111, 2022 CAAF LEXIS 

278 (C.A.A.F. 12 Apr. 2022).

“The test for legal sufficiency is whether, after viewing the evidence in the 

light most favorable to the prosecution, any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt.” United 

States v. Robinson, 77 M.J. 294, 297–98 (C.A.A.F. 2018) (internal quotation 

marks and citation omitted). “[T]he term ‘reasonable doubt’ does not mean that 

the evidence must be free from any conflict . . . .” United States v. King, 78 M.J. 

218, 221 (C.A.A.F. 2019) (citation omitted). “[I]n resolving questions of legal 

sufficiency, we are bound to draw every reasonable inference from the evidence 

of record in favor of the prosecution.” United States v. Barner, 56 M.J. 131, 134 

(C.A.A.F. 2001) (citations omitted). Thus, the “standard for legal sufficiency 

involves a very low threshold to sustain a conviction.” King, 78 M.J. at 221 

(internal quotation marks and citation omitted).

“The test for factual sufficiency is ‘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.’” Rodela, 82 M.J. at 525 (second alteration in original) (quoting United 

States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987)). “In conducting this unique 

appellate role, we take ‘a fresh, impartial look at the evidence,’ applying ‘neither a presumption of innocence nor a presumption of guilt’ to ‘make [our] own 

independent determination as to whether the evidence constitutes proof of 

each required element beyond a reasonable doubt.’” United States v. Wheeler, 

76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (alteration in original) (quoting 

Washington, 57 M.J. at 399), aff’d, 77 M.J. 289 (C.A.A.F. 2018).

In order to convict Appellant of the charged offense of assault consummated 

by a battery in violation of Article 128, UCMJ, the Government was required 

to prove: (1) that Appellant did bodily harm to RM; and (2) that the bodily harm 

was done with unlawful force or violence. See Manual for Courts-Martial, 

United States (2016 ed.) (2016 MCM), pt. IV, ¶ 54.b.(2).
United States v. Blow, No. ACM S32631 (f rev)

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3. Analysis

The military judge found Appellant guilty as charged of the Specification 

of Charge I, which alleged Appellant “unlawfully str[uck] [RM] in the body and 

head with a belt and his hand.” We find the Government introduced proof beyond a reasonable doubt that Appellant unlawfully struck RM with a belt; however, we are not convinced the Government proved Appellant specifically 

struck RM on the head, or with his hand in addition to the belt.

The most compelling evidence is the CCTV video, in combination with testimony and photographic evidence that enables us to identify Appellant and 

other individuals depicted in the video. The video shows Appellant’s group initiating the assault by overtaking RM from both sides and Amn NB striking 

RM in the head. Immediately thereafter, Appellant swings specifically at RM 

with what later portions of the video, the testimony of PS, and police testimony 

prove to be a belt, as charged. Appellant strikes with the belt several more 

times as RM falls and is essentially helpless on the ground, before D arises and 

Appellant specifically aims two blows at D. Although the target of these several 

intervening blows is less distinct, the evidence as a whole indicates the Airmen 

specifically targeted RM for attack, and that RM was actually being struck by 

multiple individuals during the assault. We find the evidence convincingly 

demonstrates that Appellant struck RM somewhere on his body with a belt.

We are not so convinced Appellant separately struck RM with his hand. 

Appellant may have done so; and applying the “very low threshold” for legally

sufficient evidence, we find there was evidence to support the military judge’s 

finding in that respect. King, 78 M.J. at 221. However, we are not ourselves 

convinced beyond a reasonable doubt. In the video, Appellant’s evident focus 

was on striking with the belt. We cannot clearly discern any point at which 

Appellant landed a blow on RM with his hand rather than the belt. 

Similarly, we are not convinced beyond a reasonable doubt that Appellant 

specifically struck RM on the head. It is not possible to discern from the video 

where on RM’s body the belt struck him. It is true that RM associated the initial “massive blow” to his head with being hit by an object, and we believe that 

a belt buckle might cause the type of cut that RM suffered on his head. However, RM’s memory of the incident is poor in several respects, and his testimony 

suggesting that it was an individual wearing a white baseball cap and white 

jacket who struck him with an item wrapped around his hand poorly matches 

the other evidence. The only Airman involved in the assault whose clothing 

remotely fits that description was Amn MO, who was wearing a white bandana 

on his head but did not appear to have anything in his hand. In addition, the 

video strongly suggests Amn NB struck the first blow to RM’s head. It is possible the cut to RM’s head was caused by some unknown item in or on Amn 

NB’s hand, or happened when RM fell against an object or to the ground, or 
United States v. Blow, No. ACM S32631 (f rev)

9

was caused by later kicks or strikes to his head. Notably, there is no evidence 

of blood on Appellant’s hands, belt, or other clothing.

We note that this court’s opinion reviewing the special court-martial of 

Amn NB relied on his liability as a principal for aiding and abetting Amn MO’s 

assault and battery of RM to uphold the Article 128, UCMJ, conviction. United 

States v. Bah, No. ACM S32634, 2021 CCA LEXIS 348, *18–22 (A.F. Ct. Crim. 

App. 9 Jul. 2021) (unpub. op.), rev. denied, 82 M.J. 118 (C.A.A.F. 2021). However, we cannot uphold Appellant’s conviction of the entire Specification of 

Charge I under a similar theory here. In Bah, the Government specifically 

asked the military judge in that case3 to consider Amn NB’s guilt as a principal 

pursuant to Article 77, UCMJ, 10 U.S.C. § 877 (2016 MCM), by aiding and 

abetting others to commit assault consummated by battery on RM. Bah, unpub. op. at *11. Moreover, at the defense’s request, the military judge made 

written special findings, which included that Amn NB by his actions aided and 

abetted Appellant and Amn MO to assault RM, and conspired with Appellant 

and Amn MO to unlawfully strike RM. Id. at *12.

In contrast, the Government made no equivalent argument and the military judge made no equivalent special findings in Appellant’s case. Indeed, 

during oral argument, trial counsel acknowledged the possibility the military 

judge would not be convinced of Appellant’s guilt of the entire specification, in 

which case the Government proposed the military judge except the unproven 

language or convict him of a lesser included offense:

If Your Honor doesn’t think that each of those individual parts 

have been proven beyond a reasonable doubt; for some reason if 

you think the CCTV footage, all the other testimony is just not 

persuasive beyond a reasonable doubt, you have a variety of options that you could engage in, in this case.

The first option would be you could strike through, except some 

words about striking in the head. You could get rid of that language. You could get rid of the fist. Or alternatively you could 

even go to some type of lesser included offense where there was 

just a simple assault, essentially an attempt to commit the assault consummated by a battery.

So if for some reason you think there is some technicality, or the 

connection piece was - something that’s slightly missing, then 

you can still have a variety of other options to find him guilty 

under Article 128, Your Honor.

 

3 Appellant and Amn NB were convicted by different military judges.
United States v. Blow, No. ACM S32631 (f rev)

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The essential point is that an appellate court may not “affirm[ ] a conviction 

based on a different legal theory than was presented at trial.” United States v. 

English, 79 M.J. 116, 122 (C.A.A.F. 2019) (citations omitted). So far as the record indicates, the military judge did not convict Appellant for liability as a 

principal under Article 77, UCMJ, for aiding or abetting others, and thus we 

may not affirm his conviction on such a theory.

Accordingly, drawing every reasonable inference from the evidence of record in favor of the Government, we conclude the evidence was legally sufficient 

to support Appellant’s conviction of the Specification of Charge I beyond a reasonable doubt. Having weighed the evidence in the record of trial and having 

made allowances for not having personally observed the witnesses, we are ourselves convinced of Appellant’s guilt beyond a reasonable doubt, excepting the 

words “and head” and “with his hand.” We take corresponding action in our 

decretal paragraph.

Having modified the findings, we have considered the reassessment of Appellant’s sentence in light of the factors enumerated in United States v. Winckelmann, 73 M.J. 11, 15–16 (C.A.A.F. 2013) (citations omitted). We find reassessment is appropriate. Based on the modified findings, we conclude the military judge would have imposed the same adjudged sentence of a bad-conduct 

discharge, confinement for five months, and a reprimand. Our modification 

does not substantially alter the essential nature or extent of Appellant’s misconduct. In addition, the military judge could reasonably have considered Appellant’s repeated misconduct, reflected not only in his convictions but in three 

nonjudicial punishment actions and two vacation of suspended punishment actions under Article 15, UCMJ, 10 U.S.C. § 815, among other adverse actions 

admitted as prosecution exhibits, reflected negatively on his rehabilitation potential. Significantly, the military judge adjudged a concurrent five-month sentence for one of the Article 92, UCMJ, offenses as well as for the Article 128, 

UCMJ, offense, so the overall term of confinement presumably would not have 

changed. We also conclude the military judge would still have imposed a badconduct discharge and reprimand. Furthermore, having reviewed the language 

of the reprimand supplied by the convening authority, we find no cause to modify the reprimand or set it aside.

B. Rebuttal Evidence

1. Additional Background

During presentencing proceedings, the Government called Technical Sergeant (TSgt) IW, Appellant’s former supervisor during a six-month period. 

When asked for his opinion regarding the character of Appellant’s service during his supervision, TSgt IW testified Appellant was “an extremely poor troop.” 

On cross-examination, TSgt IW testified Appellant arrived for work “a little 
United States v. Blow, No. ACM S32631 (f rev)

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disheveled” numerous times, and “a couple of times” Appellant smelled like 

alcohol and appeared hung over. Following cross-examination, the military 

judge asked TSgt IW whether he “talk[ed] to somebody about a concern that 

[Appellant] might have a problem or anything like that.” TSgt IW responded 

that it had been brought up to the first sergeant, and Appellant had been “allotted ADAPT[4

] and everything like that.” TSgt IW testified Appellant had 

been given time to attend ADAPT, but TSgt IW did not personally know if Appellant actually attended ADAPT appointments.

Appellant’s mother, Ms. CB, testified by telephone during the Defense’s 

presentencing case. During her direct testimony, Ms. CB opined, “I think this 

all has something to do with the alcohol use he always did before he was in 

[pretrial] confinement.” When the military judge asked Ms. CB whether Appellant’s offenses seemed “out of character” for him, she replied, “Absolutely. . . . [I]t’s still hard for me to wrap my head around, because that’s not 

at all the young man that we raised and that he is. . . . So to me it really is

extremely - alcohol seems to - this is all to what he has done, to alter his personality, his [inaudible]. That is not [Appellant].” 

Appellant’s stepfather, Mr. CB, a retired noncommissioned officer and former first sergeant in the United States Army, also testified by telephone as a 

defense witness. During the direct examination, trial defense counsel asked 

Mr. CB what the “rules [were] going to be like concerning alcohol” when Appellant returned to live with his parents after leaving the Air Force. Mr. CB 

responded, 

There’s going to be no alcohol. And he needs help. If [he] needs 

that help, professional help, to help him overcome that, that is 

not of any question. He will get that help. It will be provided to 

him, and which I think that is probably along the lines of what 

needs to happen. And so that help will be provided to him.

Following the direct examination, the military judge asked Mr. CB, “What 

makes you think he’s going to follow your, [sic] and why would he care if he 

didn’t care about rules from a Lieutenant Colonel that was his commander?” 

Mr. CB provided a lengthy response contrasting the family environment with 

the military environment, and describing his Army experience that troubled 

 

4 “ADAPT” is an abbreviation for the “Alcohol and Drug Abuse Prevention and Treatment” program. See Air Force Instruction 44-121, Alcohol and Drug Abuse Prevention 

and Treatment Program (18 Jul. 2018).
United States v. Blow, No. ACM S32631 (f rev)

12

individuals would be removed to a different environment “where they can start 

over.” In pertinent part, in the midst of his response Mr. CB stated, 

But through all of that, my first assessment of that would be I 

don’t know what he did, but was there any treatments, or recommendations to him as far as attending alcohol classes like 

ASAP,[5] or anything like that while he was in the Air Force? 

Was there any of that stuff - you know - offered to him? Was it 

command driven, or whatever? . . .

The Defense offered and the military judge admitted Defense Exhibit C, a 

character letter from two of Appellant’s cousins. The cousins opined that Appellant “bonded with the wrong people and became addicted by abusing alcohol,” and that Appellant’s “only way to recover and change his life, is to be 

around his/our family, where he is supported, happy and able to get rid of the 

alcohol addiction . . . .” 

Appellant also provided a written unsworn statement to the military judge 

which included the following:

I want to sincerely apologize for the offenses I have been convicted of. All of the decisions were made under the influence of 

alcohol. I have struggled with an alcohol problem ever since I got 

a DUI in December 2017. . . . Hanging with the wrong crowd in 

the dorms caused me to start drinking almost daily . . . . I didn’t 

realize I had a serious problem and didn’t seek the right treatment, and I continued to make bad decisions under the influence 

of alcohol. . . .

After the Defense rested its presentencing case, the Government recalled 

Senior Master Sergeant (SMSgt) LP, Appellant’s first sergeant, as a rebuttal 

witness.6 After SMSgt LP testified that he had been involved in “referrals to 

ADAPT” for Appellant, trial defense counsel objected that the Defense had not 

“open[ed] the door” to such testimony. Trial counsel responded by citing Mr. 

CB’s testimony and the Defense’s cross-examination of TSgt IW. In response, 

trial defense counsel argued that Mr. CB did not testify that rehabilitative 

measures such as ADAPT had not been attempted, and that the Defense’s 

cross-examination of TSgt IW did not refer to ADAPT at all. The military judge 

ultimately permitted SMSgt LP to testify in rebuttal, citing primarily Mr. CB’s 

testimony to the effect that, as the military judge put it, “there wasn’t enough 

 

5 “ASAP” was evidently a reference to the “Army Substance Abuse Program.” See Army 

Regulation 600–85, The Army Substance Abuse Program (28 Nov. 2016).

6 SMSgt LP had previously testified as a government witness for findings with regard 

to the Article 92, UCMJ, specifications. 
United States v. Blow, No. ACM S32631 (f rev)

13

done for his son, and that’s why he may have violated the orders and got into 

the trouble that he got into.”

In response to questioning by the military judge, SMSgt LP testified that 

Appellant had been referred to ADAPT multiple times, the first time following 

a DUI incident in December 2017. SMSgt LP described that Airmen referred 

to ADAPT who were under investigation were provided the option of deferring 

their participation until the investigation concluded, which is what happened 

in Appellant’s case following the DUI. After the DUI investigation closed, Appellant participated in an alcohol dependency evaluation by ADAPT. SMSgt 

LP testified that Appellant was referred to ADAPT again after the November 

2018 assault and battery of RM in Cambridge, and Appellant again deferred 

participation in light of the ongoing investigation. The military judge did not 

permit trial counsel to ask SMSgt LP whether Appellant ever “outright declined” to participate in ADAPT, as opposed to choosing to attend or to defer

participation. 

After the military judge received SMSgt LP’s testimony, he commented on 

his perspective on Appellant’s decision to defer participation in ADAPT and on 

why he admitted SMSgt LP’s testimony:

I’m very familiar with the fact that when a client gets referred 

to ADAPT, that many times the client is told [by their defense 

counsel], “Don’t say anything. Don’t do anything at this point. 

There’s reasons you shouldn’t say anything or do anything.” I 

mean, I think we all as lawyers understand that, and I have experience with it from long ago. So, got it. I mean, if your point is 

that he was referred to ADAPT, the unit did what they should 

have done and directed him to ADAPT based upon the incidents 

that occurred, that I have all the paperwork on, then I got it. 

[A]nd I’m going to overrule the objection because I think that’s 

legitimate, that at least the unit was doing their job.

Because that was a concern of mine when I asked [TSgt IW] was, 

was the unit just letting [Appellant] down and letting him just 

flail in the wind, even though he smelled like alcohol and looked 

disheveled. I didn’t necessarily get that from [TSgt IW], that the 

answer that no, the unit didn’t let him down. It sounds, from 

[SMSgt LP’s] testimony that they didn’t let him down. They put 

him in the program, and he had the opportunity to decline or to 

participate. There’s many reasons why he would decline based 

upon what he was alleged to have done. So in my mind, I don’t 

see any prejudice to [Appellant], because I completely understand why he might not participate based upon what he was facing.
United States v. Blow, No. ACM S32631 (f rev)

14

2. Law

“We review a military judge’s decision to admit evidence for an abuse of 

discretion.” United States v. Norwood, 81 M.J. 12, 17 (C.A.A.F. 2021) (citation 

omitted). “An abuse of discretion occurs when a military judge either erroneously applies the law or clearly errs in making his or her findings of fact.” 

United States v. Donaldson, 58 M.J. 477, 482 (C.A.A.F. 2003) (citing United 

States v. Humpherys, 57 M.J. 83, 90 (C.A.A.F. 2002)). “The abuse of discretion 

standard is a strict one, calling for more than a mere difference of opinion. The 

challenged action must be ‘arbitrary, fanciful, clearly unreasonable,’ or ‘clearly 

erroneous.’” United States v. McElhaney, 54 M.J. 120, 130 (C.A.A.F. 2000) 

(quoting United States v. Miller, 46 M.J. 63, 65 (C.A.A.F. 1997); United States 

v. Travers, 25 M.J. 61, 62 (C.M.A. 1987)).

The legal function of rebuttal evidence is to “explain, repel, counteract or 

disprove the evidence introduced by the opposing party.” United States v. Saferite, 59 M.J. 270, 274 (C.A.A.F. 2004) (quoting United States v. Banks, 36 M.J. 

150, 166 (C.M.A. 1992)) (additional citations omitted). “The scope of rebuttal is 

defined by evidence introduced by the other party.” Banks, 36 M.J. at 166 (citations omitted). “Rebuttal evidence, like all other evidence, may be excluded 

pursuant to [Mil. R. Evid.] 403 if its probative value is substantially outweighed by the danger of unfair prejudice.” Saferite, 59 M.J. at 274 (citing 

United States v. Hursey, 55 M.J. 34, 36 (C.A.A.F. 2001)). Military judges are 

afforded broad discretion in applying Mil. R. Evid. 403, but we give less deference to military judges “if they fail to articulate their balancing analysis on the 

record.” United States v. Collier, 67 M.J. 347, 353 (C.A.A.F. 2009) (quoting 

United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000) (citations and quotation marks omitted)).

Whether an error is harmless is a question of law we review de novo. United 

States v. Bowen, 76 M.J. 83, 87 (C.A.A.F. 2017). “When there is error in the 

admission of sentencing evidence, the test for prejudice ‘is whether the error 

substantially influenced the adjudged sentence.’” United States v. Barker, 77 

M.J. 377, 384 (C.A.A.F. 2018) (quoting United States v. Sanders, 67 M.J. 344, 

346 (C.A.A.F. 2009)). We consider four factors when determining whether an 

error had a substantial influence on the sentence: “(1) the strength of the Government’s case; (2) the strength of the defense case; (3) the materiality of the 

evidence in question; and (4) the quality of the evidence in question.” Id. (citations omitted).

3. Analysis

Appellant contends the military judge abused his discretion by admitting 

SMSgt LP’s rebuttal testimony regarding Appellant’s command-directed referrals to the ADAPT program. He concedes that at trial the Defense attempted 
United States v. Blow, No. ACM S32631 (f rev)

15

to “establish as a matter in mitigation that during the charged timeframe 

. . . Appellant struggled with alcohol abuse.” However, he asserts “[n]o witness 

mentioned military alcohol treatment programs in response to a defense question.” Appellant further contends the military judge mistakenly believed the 

Defense, rather than the military judge himself, first brought up the subject of

ADAPT.

7

Reviewing under the deferential abuse of discretion standard, we do not 

find the military judge erred. Information elicited by the Defense, independent 

of information elicited by the military judge, suggested the Air Force had not 

done enough to assist Appellant with alcohol dependency as a matter in mitigation. For example, the assertion in Defense Exhibit C that the “only way [for 

Appellant] to recover and change his life, is to be around his/our family, where 

he is supported, happy and able to get rid of the alcohol addiction” implied 

Appellant had not received such support or opportunities from his chain of 

command. In that light, SMSgt LP’s testimony that Appellant’s command had 

referred him to ADAPT multiple times for evaluation was relevant to “counteract” the Defense’s presentation. See Saferite, 59 M.J. at 274. Furthermore, 

although the military judge did not conduct an explicit balancing analysis under Mil. R. Evid. 403, he could reasonably conclude the danger of unfair prejudice in this judge-alone proceeding did not substantially outweigh the probative value. See Sanders, 67 M.J. at 346 (citations omitted) (“[A] military judge 

is presumed to know the law and apply it correctly, absent clear evidence to 

the contrary.”). In this regard, the military judge noted he found it entirely 

understandable that Appellant would defer or decline participation in ADAPT 

in light of the ongoing investigation and proceedings. Accordingly, we find the 

military judge’s ruling to permit limited rebuttal testimony that Appellant’s 

command had referred him to ADAPT was neither arbitrary, fanciful, nor 

clearly unreasonable. See McElhaney, 54 M.J. at 130.

Assuming arguendo the military judge did err by admitting SMSgt LP’s 

rebuttal testimony, we conclude such an error did not substantially influence 

Appellant’s sentence. The Government’s sentencing case was very strong. Appellant not only participated in the unprovoked violent assault on RM leading 

to Appellant’s arrest by British police, but engaged in further misconduct by

blatantly disobeying his commander’s orders to have no contact with Amn NB 

and to be restricted to base while under investigation for that assault. Moreo-

 

7 The military judge accepted trial defense counsel’s proposition that the military 

judge’s own questions would not open the door to rebuttal evidence, stating: “I know I 

asked about ADAPT, but that obviously wouldn’t open the door in my mind. But I believe [D]efense - it was mentioned in the answer that [D]efense got [from TSgt IW], 

and that’s why I actually asked about it.”
United States v. Blow, No. ACM S32631 (f rev)

16

ver, the Government introduced evidence of numerous other instances of misconduct from Appellant’s service record, including three nonjudicial punishment actions and two vacation of suspended punishment actions under Article 

15, UCMJ, 10 U.S.C. § 815, two letters of reprimand (including one for a DUI 

conviction in British court), and an administrative demotion. In addition, the 

military judge received RM’s unsworn statement and testimony from RM’s fiancée describing RM’s medical, emotional, and financial problems following

the assault. The Defense’s sentencing case was not insubstantial—in particular, the testimony of Dr. KB, an Air Force neurologist, cast some doubt on the 

extent to which RM’s problems were attributable to Appellant’s actions. However, the Defense’s case otherwise relied primarily on Appellant’s unsworn 

statement and statements or testimony of family members, who attempted to 

portray Appellant as an individual with considerable talent and potential who 

was unfortunately bedeviled by alcohol abuse. On the whole, the Government’s 

evidence in aggravation and the extensive negative information from Appellant’s service record significantly outweighed the evidence in mitigation and 

extenuation.

As for the materiality and quality of the rebuttal evidence, SMSgt LP’s testimony was not significantly harmful to the Defense. SMSgt LP essentially testified that Appellant’s command had referred him to ADAPT after his DUI in 

late 2017 and after the November 2018 assault on RM, and that Appellant had 

initially deferred participation while the investigations were ongoing. The military judge made a point of stating he “completely underst[oo]d” why Appellant 

would defer participation under the circumstances, and that testimony would 

not prejudice Appellant. Moreover, we find no prospect that SMSgt LP’s testimony regarding the simple fact of Appellant’s referral to ADAPT substantially 

influenced the sentence. TSgt IW’s testimony during the Government’s presentencing case already implied Appellant had been so referred; SMSgt LP’s testimony did not directly contradict any other statement or testimony; and this 

collateral information regarding the official response to Appellant’s misconduct 

was of slight if any significance in comparison to the weight of other evidence 

bearing on aggravation, mitigation, and extenuation.

C. Sentence Severity

1. Additional Background

During presentencing proceedings, pursuant to Rule for Courts-Martial 

1001(c), RM submitted a written unsworn statement which he also read to the 

military judge. Therein, RM described several financial, emotional, and medical problems he had experienced following the November 2018 assault. The

medical problems he described included tinnitus, headaches, panic attacks, depression, anxiety, and loss of sleep and appetite, among others. In addition, 

RM related that he attempted suicide in February 2019, and in March 2019 he 
United States v. Blow, No. ACM S32631 (f rev)

17

suffered a “mild stroke” which he “believe[d] . . .was caused, at least in part,” 

by injuries suffered in the assault. RM’s fiancée, TC, testified as a government 

presentencing witness and provided similar information.

The military judge sentenced Appellant on 21 August 2019 to a bad-conduct 

discharge, confinement for a total of five months, and a reprimand. The convening authority approved the sentence.

Amn NB and Amn MO were also charged and tried by special courts-martial for their involvement in the assault and battery of RM. 

Amn NB was tried by a military judge sitting alone. Amn NB pleaded guilty 

to one specification of absence without leave and one specification of false official statement, in violation of Articles 86 and 107, UCMJ, 10 U.S.C. §§ 886, 

907; the military judge found him guilty, contrary to his pleas, of committing 

assault consummated by battery on RM by unlawfully striking him on the head 

and body with his hand and by kicking him on the head and body with his foot, 

in violation of Article 128, UCMJ.

8 Bah, unpub. op. at *1–2. The military judge 

sentenced Amn NB to a bad-conduct discharge, confinement for six months, 

reduction to the grade of E-1, and a reprimand. Id. at *2. This court affirmed 

the findings and sentence. Id. at *30.

This court has not reviewed Amn MO’s court-martial. However, on appeal, 

Appellant moved to attach the summarized record of Amn MO’s special courtmartial, and we granted the motion over the Government’s opposition. The record provided to the court indicates that, pursuant to a pretrial agreement, Amn 

MO elected to be tried by a military judge alone, and pleaded guilty to one 

specification of assault consummated by battery on RM by striking RM in the 

body and head with his hand in violation of Article 128, UCMJ.

9 The military 

judge—the same judge who presided at Appellant’s trial, but not Amn NB’s 

trial—found Amn MO guilty in accordance with his pleas and on 24 October 

2019 sentenced him to confinement for 15 days, reduction to the grade of E-1, 

and a reprimand.

2. Law

We review issues of sentence appropriateness de novo. United States v. 

Lane, 64 M.J. 1, 2 (C.A.A.F. 2006) (citing United States v. Cole, 31 M.J. 270, 

272 (C.M.A. 1990)). We may affirm only as much of the sentence as we find 

 

8 As described above, this court affirmed the guilty findings in part on the basis of the 

military judge’s finding that Amn NB was liable as a principal for blows struck by 

others involved in the assault, particularly Amn MO. Bah, unpub. op. at *12, *18–21.

9 Amn MO did not plead guilty to additional language in the specification alleging he 

also kicked RM in the head and body with his foot. The Government withdrew this 

excepted language after the military judge entered his findings.
United States v. Blow, No. ACM S32631 (f rev)

18

correct in law and fact and determine should be approved on the basis of the 

entire record. Article 66(d), UCMJ, 10 U.S.C. § 866(d). “We assess sentence 

appropriateness by considering the particular appellant, the nature and seriousness of the offense[s], the appellant’s record of service, and all matters contained in the record of trial.” United States v. Sauk, 74 M.J. 594, 606 (A.F. Ct. 

Crim. App. 2015) (en banc) (per curiam) (alteration in original) (quoting United 

States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009)). Our sentence 

appropriateness review includes “considerations of uniformity and evenhandedness of sentencing decisions.” United States v. Sothen, 54 M.J. 294, 296 

(C.A.A.F. 2001) (citations omitted). Although we have “broad discretionary 

power to review sentence appropriateness,” United States v. Kelly, 77 M.J. 404, 

405 (C.A.A.F. 2018), we have no authority to grant mercy. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).

Courts of Criminal Appeals (CCAs) are “not required . . . to engage in sentence comparison with specific [other] cases ‘except in those rare instances in 

which sentence appropriateness can be fairly determined only by reference to 

disparate sentences adjudged in closely related cases.’” United States v. Lacy, 

50 M.J. 286, 288 (C.A.A.F. 1999) (quoting United States v. Ballard, 20 M.J. 

282, 283 (C.M.A. 1985)). Cases are “closely related” when, for example, they 

involve “coactors involved in a common crime, servicemembers involved in a 

common or parallel scheme, or some other direct nexus between the servicemembers whose sentences are sought to be compared.” Id. “[A]n appellant 

bears the burden of demonstrating that any cited cases are ‘closely related’ to 

his or her case and that the sentences are ‘highly disparate.’ If the appellant 

meets that burden . . . then the Government must show that there is a rational 

basis for the disparity.” Id.; see also United States v. Durant, 55 M.J. 258, 261–

63 (C.A.A.F. 2001) (holding a highly disparate sentence in a closely related case 

did not warrant sentence relief where a rational basis for the difference existed).

3. Analysis

Appellant contends his sentence is highly disparate compared to that in the 

closely related case of Amn MO, and that there is no rational basis for the disparity.

As an initial matter, the Government contends we may not consider the 

summarized record of trial from Amn MO’s court-martial because it is outside 

the “entire record of trial,” as defined in United States v. Jessie, 79 M.J. 437, 

440 (C.A.A.F. 2020). We disagree. In Jessie, the United States Court of Appeals 

for the Armed Forces (CAAF) explained that, as a general rule, a CCA reviewing a case referred to it “cannot consider matters outside the ‘entire record,’” 

defined as the “record of trial,” “allied papers,” and “briefs and arguments that 

government and defense counsel (and the appellant personally) might present 
United States v. Blow, No. ACM S32631 (f rev)

19

regarding matters in the record of trial and ‘allied papers.’” Id. at 440–41 (citations omitted). The outcome of Amn MO’s court-martial does not appear in 

the entire record of Appellant’s court-martial, as defined by Jessie. However,

in Jessie the CAAF recognized, and declined to overrule, precedent creating an

exception to this general rule where material from outside the record “is necessary for resolving issues raised by materials in the record.” Id. at 444. As 

noted above, our superior court has long required CCAs to consider highly disparate sentences in closely related cases as an aspect of sentence appropriateness review under Article 66, UCMJ. See, e.g., United States v. Wacha, 55 M.J. 

266, 267 (C.A.A.F. 2001); Lacy, 50 M.J. at 288; United States v. Brock, 46 M.J. 

11, 13 (C.A.A.F. 1997). The CAAF has not overturned this line of precedent in 

light of Jessie. Accordingly, we reconcile Jessie with this preexisting precedent 

by placing the results of closely related courts-martial within Jessie’s exception 

for matters necessary to resolve issues raised by matters contained in the record of trial where, as in this case, the role of the servicemember whose sentence 

is sought to be compared is apparent from the appellant’s record. Cf. Brock, 46 

M.J. at 12–13 (noting appellant moved the CCA to take notice of the promulgating order of the coactor’s court-martial, and finding the CCA erred by refusing to consider it). Therefore, we have reviewed the summarized transcript of 

Amn MO’s court-martial to determine if his case was in fact closely related to 

Appellant’s, if the sentences are highly disparate, and if so whether there is a 

rational basis for the different results.

We find Amn MO’s case is closely related to Appellant’s. Cases are closely 

related when there is a “direct nexus” between the two servicemembers, such 

as “coactors involved in a common crime.” Lacy, 50 M.J. at 288. In this case, 

Appellant and Amn MO were both part of the same group of Airmen who initiated the assault on RM, and both were convicted of committing assault consummated by a battery on RM at the same time and place. Accordingly, we 

find a direct nexus between the two servicemembers and their courts-martial.

Although Appellant was also convicted of two later violations of Article 92, 

UCMJ, not involving Amn MO, the CAAF has not held that convictions must 

be identical in order for the cases to be closely related for purposes of sentence 

comparison. See, e.g., Brock, 46 M.J. at 11–13 (finding CCA erred by failing to 

consider whether another Airman’s case involving non-identical offenses were 

closely related to the appellant’s).

The next step in our analysis is to determine whether the sentences are 

highly disparate. Appellant received, inter alia, confinement for five months

and a bad-conduct discharge; Amn MO received confinement for only 15 days

and no punitive discharge. These are significantly different outcomes. The Government argues the sentences are nevertheless not highly disparate, in part 

because Appellant was sentenced for three offenses and Amn MO sentenced 

for only one offense. We recognize that very dissimilar sentences adjudged in 
United States v. Blow, No. ACM S32631 (f rev)

20

closely related cases may not necessarily be highly disparate for purposes of 

sentence comparison, depending on various factors. Cf. Durant, 55 M.J. at 262 

(assuming without deciding that appellant’s sentence including a bad-conduct 

discharge and confinement for 12 months and the coactor’s sentence including 

neither a punitive discharge nor confinement were highly disparate). However, 

we note the military judge sentenced Appellant to five months of confinement 

specifically for the assault and battery of RM, compared to the 15 days Amn 

MO received. We will assume that Appellant’s sentence and Amn MO’s sentence are highly disparate for purposes of our analysis under Lacy. 

Therefore, the question becomes whether there is a rational basis for the 

disparity. Lacy, 50 M.J. at 288. We find that there is. We note the following, 

non-exclusive potential reasons contributing to the different sentences.

First, as noted, Appellant was convicted of three offenses, whereas Amn 

MO was convicted only of one. Moreover, in contrast to Amn MO, Appellant 

continued to engage in significant misconduct after he was arrested for the 

assault of RM and while he knew he was under investigation for that offense, 

leading to his pretrial confinement. Thus Appellant was sentenced for a greater

amount of misconduct, and the military judge could reasonably have found the 

circumstances reflected unfavorably on Appellant’s contrition and rehabilitative potential in comparison to Amn MO.

In addition, whereas Appellant pleaded not guilty to the charges against 

him, Amn MO pleaded guilty to assaulting and battering RM. Although it 

would be inappropriate for the military judge to increase Appellant’s sentence 

for maintaining his right to require the Government to prove his guilt—and we 

find no indication the military judge did so—the military judge could reasonably consider Amn MO’s guilty plea and acceptance of responsibility as a positive signal regarding his rehabilitative potential. See United States v. Edwards, 35 M.J. 351, 355 (C.M.A. 1992) (“[A] guilty plea is a positive first step 

to rehabilitation and may be considered as a mitigating factor at sentencing.”).

Furthermore, Appellant was the only participant in the assault on RM 

noted to have used a weapon, albeit an improvised one, specifically a belt with 

a buckle. In addition, the CCTV video depicted Appellant and Amn NB approaching RM from behind on either side at the same time. Although Amn NB

apparently struck first, Appellant swung at RM with the belt immediately 

thereafter. In contrast, according to Amn MO’s statements at his court-martial, 

and supported by the CCTV video, Amn MO swung at RM only at a later point 

in the incident. The military judge could have reasonably found these details

indicated a greater degree of premeditation and responsibility regarding the 

incident on Appellant’s part as compared to Amn MO.
United States v. Blow, No. ACM S32631 (f rev)

21

Additionally, Appellant’s sentencing case was arguably weaker than Amn 

MO’s. The two were similar in some respects. Whereas Appellant’s parents testified on his behalf, Amn MO’s spouse and brother-in-law (a United States 

Army veteran and civilian police officer) testified on his behalf. The Government introduced evidence of additional misconduct from each Airman’s personnel records, but Appellant’s history of misconduct was significantly more extensive. In addition, whereas TSgt IW specifically testified to the “extremely 

poor” quality of Appellant’s duty performance, there was no equivalent negative testimony from Amn MO’s command or supervisors. Appellant offered a 

two-page written unsworn statement; Amn MO provided an oral as well as 

written unsworn statement that were arguably more effective. RM provided 

similar unsworn victim impact statements in each case. Both Appellant and 

Amn MO called the same Air Force neurologist, Maj KB, who provided similar 

testimony in each case. Maj KB essentially testified that she doubted a stroke 

RM suffered months after the assault was caused by the incident, and she 

opined that the tinnitus and headaches RM described experiencing after the 

assault could have other causes, such as preexisting drug prescriptions RM 

was taking. However, Amn MO additionally called a civilian psychiatrist, Dr. 

PO, who had reviewed some of RM’s medical records and interviewed RM. In 

combination, the testimony of Maj KB and Dr. PO in Amn MO’s court-martial 

went much further in detailing RM’s significant preexisting and subsequent 

physical and mental health issues, in effect going substantially further to cast 

doubt on the negative victim impact attributable to the assault itself. While we 

cannot know the military judge’s exact reasoning, the relative strength of Amn 

MO’s sentencing case compared to Appellant’s provides an additional rational 

basis for additional differences in their adjudged punishments.

Finally, we note that Appellant’s sentence was similar and not highly disparate compared to Amn NB’s sentence; in fact, Appellant received slightly less 

punishment than Amn NB. In that sense, Amn MO’s sentence rather than Appellant’s was the outlier of the three. Although we are required to compare 

highly disparate sentences in closely related cases as part of our sentence appropriateness review, we are not required to reduce an otherwise appropriate 

sentence where one Airman happened to receive a lower sentence than multiple others who were involved. See Durant, 55 M.J. at 261 (“[T]he military system must be prepared to accept some disparity in the sentencing of codefendants, provided each military accused is sentenced as an individual.”) (citations 

omitted). More to the point, applying Lacy in light of the considerations above, 

we find a rational basis for the military judge to have imposed the differing 

sentences in Appellant’s court-martial and Amn MO’s court-martial.

Accordingly, having given individualized consideration to Appellant, the 

nature and seriousness of the offenses, Appellant’s record of service, all other 

matters contained in the record of trial, and the sentences adjudged in closely 
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22

related courts-martial, we conclude Appellant’s sentence is not inappropriately 

severe.

D. Admission of the CCTV Video

1. Additional Background

Before Appellant entered his pleas, the Government sought to preadmit 

Prosecution Exhibit 1, the CCTV video of the assault on RM in Cambridge on 

25 November 2018. To that end, the Government called SrA DG, one of the 

Airmen who was with Appellant that night and was present at the incident. 

Trial counsel asked SrA DG a series of questions summarizing his recollection 

of events of that night leading up to the point that the “physical altercation” 

with RM occurred. 

Trial counsel then played the video from Prosecution Exhibit 1 for SrA DG 

to view. In response to further questioning, SrA DG agreed that he recognized 

what the video depicted, specifically a “fight” outside the club. In particular, 

SrA DG testified he recognized himself, Appellant, and Amn NB in the video. 

SrA DG further agreed the video was “a fair and accurate representation of the 

way that that altercation took place.” 

On cross-examination, trial defense counsel elicited that there were a number of aspects of the incident that SrA DG did not remember. These details 

included who struck or received the first blow; how many individuals were involved; whether SrA DG pushed anyone, was himself pushed, or if he fell on 

the ground; and SrA DG’s inability to identify RM on the video or in person. 

When trial defense counsel asked whether SrA DG was “basing [his] testimony 

here today on that video,” he responded, “[s]ome from memory, some from the 

video,” and later elaborated, “from the video and a little bit from memory.” On 

redirect examination, SrA DG agreed that he “remember[ed] some portions of 

the altercation, and some portions were not as clear.” He further agreed that 

“every single part of what [he] did remember,” Prosecution Exhibit 1 showed 

“accurately.” The Government did not call additional witnesses to preadmit 

Prosecution Exhibit 1.

The Defense objected to the admission of Prosecution Exhibit 1 on the basis 

of “foundation and authentication.” After receiving argument, the military 

judge issued an oral ruling admitting Prosecution Exhibit 1. He explained: 

I do find that there is a foundation and authentication. For the 

authentication piece, it goes to the weight and not the admissibility, because we don’t have - as far as I know, there’s nobody 

going to be called in to talk about the video, to how it was recorded, where it’s kept, and all that stuff. But I’m still admitting 

it based upon [SrA DG’s] testimony, that it would in fact help his 
United States v. Blow, No. ACM S32631 (f rev)

23

testimony, and that it was, from his memory, an accurate recording of what happened that night outside of [the club].

The military judge later supplemented his oral ruling with a written ruling. 

He wrote, in part:

[T]he recording is helpful in demonstrating how the attack occurred and it assists witnesses in testifying by allowing them to 

point out where they were as the attack on RM transpired. The 

court is comfortable with the foundation and authentication of 

the recording because of the number of witnesses who can identify the scene and describe what transpired in the recording 

without needing the recording to do so. The recording does aid 

those witnesses[’] testimony and sometimes refreshes their recollections, but it is not the primary source of their memory, what 

happened on the street that evening, or what their part in the 

event was.

The military judge further explained the probative value of the video was 

“high” and not substantially outweighed by the danger of unfair prejudice or 

any other countervailing consideration. See Mil. R. Evid. 403; United States v. 

Berry, 61 M.J. 91, 95 (C.A.A.F. 2005). 

2. Law

We review a military judge’s decision to admit evidence for an abuse of discretion. Norwood, 81 M.J. at 17 (citation omitted). “A military judge abuses his 

discretion when his findings of fact are clearly erroneous, [his] decision is influenced by an erroneous view of the law, or [his] decision on the issue at hand 

is outside the range of choices reasonably arising from the applicable facts and 

the law.” United States v. Miller, 66 M.J. 306, 307 (C.A.A.F. 2008) (citations 

omitted). “The abuse of discretion standard is a strict one . . . .” McElhaney, 54 

M.J. at 130.

“To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that 

the item is what the proponent claims it is.” Rule for Courts-Martial 901(a). 

“Evidence may be authenticated through the testimony of a witness with 

knowledge ‘that a matter is what it is claimed to be.’” United States v. Lubich, 

72 M.J. 170, 173 (C.A.A.F. 2013) (quoting Mil. R. Evid. 901(b)(1)). 

Generally speaking, the proponent of a proffered item of evidence needs only to make a prima facie showing that the item is 

what the proponent claims it to be. . . .
United States v. Blow, No. ACM S32631 (f rev)

24

Once the proponent has made the requisite showing, the trial 

court should admit the item, assuming it meets the other prerequisites to admissibility . . . in spite of any issues the opponent 

has raised about flaws in the authentication. Such flaws go to 

the weight of the evidence instead of its admissibility. 

Id. at 174 (quoting 5 Jack B. Weinstein & Margaret A. Berger, Weinstein’s 

Federal Evidence § 901.02[3], at 901-13 to 901-14 (Joseph M. McLaughlin ed., 

2d ed. 2003)). 

3. Analysis

Appellant contends the military judge abused his discretion by admitting 

Prosecution Exhibit 1. He asserts the military judge relied upon clearly erroneous factfinding in two respects. First, Appellant cites the written ruling’s 

reference to multiple witnesses who could “identify the scene and describe 

what transpired,” when the military judge had only received evidence from SrA 

DG at the point he admitted Prosecution Exhibit 1. Second, Appellant contends 

the finding that the video was “not the primary source” of SrA DG’s memory 

conflicts with SrA DG’s statement that his testimony was “a little bit from 

memory.” In addition, Appellant also contends the military judge’s references 

to the potential for Prosecution Exhibit 1 to aid witnesses’ testimony or refresh 

their recollection indicate he erroneously confused such non-substantive uses 

with the authentication requirements for substantive evidence. 

We find the military judge did not abuse his discretion when he preadmitted Prosecution Exhibit 1. SrA DG’s testimony met the relatively low standard 

of a prima facie showing that the exhibit was what the Government purported 

it to be—an accurate videorecording of the altercation wherein RM was assaulted. SrA DG testified that Prosecution Exhibit 1 was a “fair and accurate 

representation” of exactly that. He could identify himself, Appellant, and Amn 

NB in the video. Although there were aspects of the incident SrA DG could not 

remember, or perhaps did not observe at the time, the video “accurately” depicted “every single part” of what he did remember. Accordingly, the military 

judge could reasonably find any gaps in the authentication applied to the exhibit’s weight rather than its admissibility.

We acknowledge the references to other witnesses in the written ruling do 

little to clarify the military judge’s rationale. Appellant is correct that, at the 

point the military judge admitted Prosecution Exhibit 1, only SrA DG had testified about it. Perhaps these references may be understood as explaining the 

anticipated relevance and materiality of the video in light of the Government’s 

proffers as to expected witnesses; or perhaps it was simply an error in a written 
United States v. Blow, No. ACM S32631 (f rev)

25

ruling drafted at a later point in the court-martial. Regardless, any inartfulness or ambiguity in the written ruling in this regard does not defeat the sufficiency of SrA DG’s testimony authenticating the exhibit. 

In a similar vein, Appellant’s arguments regarding the military judge’s apparent legal rationale make a valid point but are ultimately unavailing. We 

agree with Appellant that potential use of the CCTV video as a demonstrative 

aid for witness testimony or to refresh recollection would not be a basis to admit Prosecution Exhibit 1 as substantive evidence. It is not clear why the military judge elected to include such uses in his ruling. However, it is additionally 

clear the military judge found Prosecution Exhibit 1 highly relevant evidence 

in its own right, noting it depicted Appellant’s “presence at the scene of the 

attack on RM and how the attack occurred.” Stripping away any rationales 

regarding use as demonstrative evidence or to refresh recollection, SrA DG’s 

testimony and the military judge’s oral and written rulings indicate the admission of Prosecution Exhibit 1 was neither arbitrary, fanciful, nor clearly unreasonable. See McElhaney, 54 M.J. at 130.

Accordingly, although another trial judge might reasonably have required 

more authentication from the Government, we conclude the admission of Prosecution Exhibit 1 on the basis of SrA DG’s testimony was within “the range of 

choices reasonably arising from the applicable facts and the law,” and not an 

abuse of discretion. Miller, 66 M.J. at 307. 

III. CONCLUSION

We affirm the finding of guilty as to the Specification of Charge I, excepting 

the words “and head” and “with his hand;” the excepted words are set aside. 

The findings of guilty as to Charge I, Charge II, and the specifications of 

Charge II, and the sentence, as reassessed, are correct in law and fact, and no 

error materially prejudicial to the substantial rights of Appellant occurred. Articles 59 and 66(d), UCMJ, 10 U.S.C. §§ 859, 866(d). Accordingly, the findings, 

as modified, and sentence, as reassessed, are AFFIRMED.

FOR THE COURT

ANTHONY F. ROCK, Maj, USAF

Acting Clerk of the Court