United States v. Linck ( 2020 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39627
________________________
UNITED STATES
Appellee
v.
Damon P. LINCK
Senior Airman (E-4), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 25 August 2020
________________________
Military Judge: L. Martin Powell.
Approved sentence: Dishonorable discharge, confinement for 7 years,
forfeiture of all pay and allowances, and reduction to E-1. Sentence ad-
judged 19 October 2018 by GCM convened at Shaw Air Force Base,
South Carolina.
For Appellant: Major M. Dedra Campbell, USAF; Major Rodrigo M.
Caruço, USAF; Catherine M. Cherkasky, Esquire.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant
Colonel Brian C. Mason, USAF; Lieutenant Colonel G. Matt Osborn,
USAF; Mary Ellen Payne, Esquire.
Before MINK, KEY, and ANNEXSTAD, Appellate Military Judges.
Judge KEY delivered the opinion of the court, in which Senior Judge
MINK 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This is an unpublished opinion and, as such, does not serve as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. Linck, No. ACM 39627
KEY, Judge:
A military judge sitting as a general court-martial convicted Appellant, con-
trary to his pleas, of two specifications of rape, one specification of sexual as-
sault, and three specifications of aggravated sexual contact in violation of Ar-
ticle 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920. 1 The mil-
itary judge sentenced Appellant to a dishonorable discharge, confinement for
seven years, forfeiture of all pay and allowances, and reduction to the grade of
E-1. The convening authority approved the sentence as adjudged.
On appeal, Appellant raises two issues. He asserts the evidence was legally
and factually insufficient to support a finding of guilt and that the military
judge erred by denying the Defense’s request for the appointment of an expert
consultant in the field of toxicology. Although not raised by Appellant, we con-
sider whether he is entitled to relief for facially unreasonable post-trial delay.
Finding no error that materially prejudiced a substantial right of Appellant,
we affirm the findings and the sentence.
I. BACKGROUND
All six specifications in this case arise from an alcohol-fueled night of sex-
ualized partying by a group of Airmen which included Appellant and the vic-
tim, Senior Airman (SrA) JC. 2
The series of events at issue began on 9 September 2017 with a party hosted
by SrA JT at his off-base residence to celebrate either SrA JT’s birthday or an
incoming hurricane. 3 SrA JT and SrA JC were close friends who had previously
been romantically involved, and SrA JC was the first person to arrive for the
party. SrA JC, who had recently separated from her on-and-off boyfriend, Staff
Sergeant (SSgt) ZC, brought an air mattress and change of clothes with her
along with some food she had prepared, a six-pack of beer, and a bottle of wine.
While waiting for the other party invitees to arrive, SrA JC took a picture
of herself lying in a hammock at SrA JT’s house and posted it to her Facebook
1All references in this opinion to the Uniform Code of Military Justice (UCMJ) are to
the Manual for Courts-Martial, United States (2016 ed.).
2By the time of trial, Senior Airman (SrA) JC had been promoted to staff sergeant. We
refer to her by the grade she held at the time of the offense.
3 As with many aspects of the case, witnesses offered varying accounts on this point.
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United States v. Linck, No. ACM 39627
feed. 4 Appellant, whom SrA JT had also invited to the party but had not yet
arrived, sent SrA JC a message via Facebook Messenger shortly after 2000
hours reading, “Totally jealous of the hammock.” 5 SrA JC responded, “Get ya
a** over at [SrA JT’s] then.” Appellant said he was waiting on his ride to which
SrA JC replied, “Its dark now so not as pretty . . . Happy birthday btw!” and
“See ya in a bit” followed by a smiling emoji.
Eventually, Appellant arrived at SrA JT’s party, driven there by his desig-
nated driver, SrA DV. Other invitees also showed up, to include SrA MM, who
drove herself and Airman First Class (A1C) RH to the party. Once at SrA JT’s
house, the Airmen began playing drinking games, some with sexual themes.
SrA JC recounted drinking the entirety of the six-pack of beer she had brought,
another can of beer, and “a shot” of high-proof liquor—substantially more than
SrA JC said she would ordinarily consume in a single setting. As time went on,
more people began showing up at the party, interfering with the drinking
games.
At 2219 hours, about two hours and twenty minutes after Appellant sent
his comment about the hammock to SrA JC—presumably the approximate
timeframe in which SrA JC drank the aforementioned quantity of alcohol—
Appellant sent a group text message to his designated driver, SrA DV, and SrA
MM asking, “Is this too many people for anyone else?” Appellant and A1C RH
were apparently standing together at the time, and Appellant was sending
messages on behalf of A1C RH as well as himself. SrA DV responded that she
could leave whenever Appellant and A1C RH wanted to leave, and Appellant
replied, “I wanna bring [SrA JC] with us.” This prompted SrA DV to ask, “Um,
is that [Appellant] or [A1C RH] trying to bang [SrA JC] lol.” Appellant texted
back, “Yes.”
This group of six Airmen—Appellant, SrA JC, SrA MM, SrA DV, A1C RH,
and the host of the original party, SrA JT—left for Appellant’s apartment,
about a 15-minute drive away. SrA JC brought her air mattress, clothes, and
bottle of wine with her. SrA JT drove SrA MM’s car and SrA DV drove her own
car. SrA DV testified SrA JC rode in her car and that SrA JC “kept going on
about her ex-boyfriend” for “[p]retty much the whole car ride” without any
prompting or encouragement from SrA DV. A few minutes after the group ar-
rived at Appellant’s house, SrA DV left, having fulfilled her designated-driver
obligations.
4 SrA JC declined to provide investigators access to her phone and only turned over
tailored screenshots. As a result, the record contains neither the hammock picture nor
any caption SrA JC may have posted along with it.
5 Except as otherwise indicated, we quote all text and online messages verbatim.
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The remaining five Airmen continued drinking and playing sex-themed
games, although what they drank and in what quantity is indiscernible from
the record. For example, SrA JC said she believed she consumed most of the
bottle of wine she brought, which she identified as a four-liter bottle of sangria,
although she largely based that belief on seeing a near-empty bottle the next
morning. SrA JT, on the other hand, said the bottle of wine was the size of a
standard 750-milliliter bottle, and he drank two-thirds of it, with SrA JC con-
suming the remainder.
For reasons the Airmen could not recall at trial, the group decided to take
off their pants and continue playing a board game in Appellant’s living room.
At some point, SrA JC leaned over to SrA MM and said something to the effect
that SrA JC could guess SrA MM’s sexual fetishes, leading SrA JC to kiss SrA
MM on her neck and then start “making out” with her. As they continued kiss-
ing, Appellant and A1C RH moved in closer and began touching and grabbing
both SrA JC and SrA MM. This led to SrA JC’s and SrA MM’s underwear com-
ing off and Appellant digitally penetrating and performing oral sex on both of
them, alternating between the two women. While Appellant was doing this,
A1C RH was leaning over Appellant with his left hand on SrA MM’s neck,
choking her but not so aggressively as to cut off her air supply. A1C RH used
his other hand to choke SrA JC with a dog leash that had come to be attached
to her neck.
As these events unfolded, SrA JT became uncomfortable and retreated to
Appellant’s bathroom to see if he could figure out a way to have someone come
pick him up and drive him home. Unsuccessful, he returned to the living room
where SrA MM was naked and Appellant was continuing to perform oral sex
on her and SrA JC while A1C RH was choking the two. SrA JT noticed SrA JC
looked as if she was “becoming unresponsive,” so he pushed A1C RH out of the
way and took off the leash. Appellant and A1C RH turned their focus to SrA
MM. Shortly thereafter, Appellant pushed A1C RH away and told SrA MM,
“Let’s go into the bedroom.” SrA MM then pushed Appellant back, stood up,
and loudly announced, “Gotcha b***h,” which was her way of communicating
that she did not intend to go to Appellant’s bedroom with him. She described
Appellant as looking “really angry” after she did so.
While SrA MM started getting dressed, SrA JC rolled over onto SrA JT,
who was sitting on the couch next to her, and briefly kissed him until he rolled
her off to his other side. As SrA MM, SrA JT, and A1C RH all prepared to leave,
SrA JC—wearing only her shirt—remained on the couch refusing their offers
for rides home or for water or food. At trial, SrA JC testified she wanted to stay
and sleep on Appellant’s couch out of concern that none of the others was sober
enough to drive. She said she clearly remembered telling the group, “you are
all drunk and you shouldn’t drive . . . there is couches, there’s ways for us to
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United States v. Linck, No. ACM 39627
stay the night. We shouldn’t drive drunk.” SrA JT, however, testified that SrA
JC “was ready to go to sleep . . . She didn’t want to go anywhere. She just
wanted to go to sleep.” SrA MM testified that SrA JC “was saying no to every-
thing. I’d offered her a ride and she didn’t want to move.” SrA MM further
testified that SrA JC looked “[p]retty exhausted” and “really out of it.” Acqui-
escing to SrA JC’s wishes to remain at Appellant’s apartment, SrA MM drove
herself and the other two Airmen to their respective homes.
SrA JC testified that after the others left, she fell asleep on Appellant’s
couch. The next thing she remembered was being in Appellant’s bedroom,
“handcuffed” to his bed, with Appellant slapping and choking her. She ex-
plained she was lying on her back, her hands “were restrained by a Velcro sort
of handcuff thing that was connected to the bed,” and she was unable to get
her hands out of the restraints or out of the bed. Appellant was slapping SrA
JC across the face with his hands as well as slapping her vaginal area and
choking her. Because her legs were not restrained, Appellant was also able to
repeatedly slap her buttocks. Although SrA JC had her shirt on, both it and
her bra had been pushed onto her upper chest. SrA JC testified she was
screaming, telling Appellant to stop and that it hurt, but Appellant just told
her that he liked it when she screamed. She tried kicking Appellant to no avail,
and he proceeded to hold down her legs with his hands and arms while he
orally and digitally penetrated her.
SrA JC then heard “two very loud knocks,” and she told Appellant to go get
the door. Appellant released SrA JC from the restraints, and she went into the
living room and sat on the couch while Appellant investigated. Concluding no
one was at the door, Appellant walked over to SrA JC, picked her up, and car-
ried her back to the bedroom. SrA JC said Appellant resumed choking and
slapping her while she continued to kick him. He orally and digitally pene-
trated SrA JC’s vulva again as she tried to push him off in vain. At some point,
Appellant backed off and asked SrA JC if she just wanted to go to sleep. She
answered in the affirmative, rolled over, and fell asleep, but she woke to Ap-
pellant choking and slapping her again, orally and digitally penetrating her
again, and finally penetrating her vulva with his penis after which he ejacu-
lated on her shirt and on her side. SrA JC also testified that at some point
during the assault, Appellant attempted to penetrate her anus with his fingers.
Once Appellant ejaculated and fell asleep, SrA JC returned to the couch,
where she saw that SrA JT had sent her a text at 0110 hours asking, “You
okay?” She responded at 0312 hours, “You still upp” and “Pick me up tomorrow
as soon as you wake up.” She tried calling SrA JT a few minutes later, but he
did not pick up, and she did not leave a voicemail message. SrA JC testified
she then went to Appellant’s bathroom and took pictures of her injuries “just
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United States v. Linck, No. ACM 39627
in case, in the future, if [she] ever need[ed] it as evidence.” She tried unsuc-
cessfully to fall asleep on Appellant’s couch and started repeatedly calling SrA
JT’s phone number along with another friend’s number at 0505 hours. At 0525
hours, SrA JT called her back, and he picked her up about 30 minutes later.
SrA JC did not say anything about the assault during the ride back to SrA JT’s
house.
SrA JC went to sleep at SrA JT’s house. When she woke up around 1100
hours, she told SrA JT over breakfast what had happened at Appellant’s apart-
ment after he and the other Airmen had left. She showed SrA JT marks on her
neck, hips, buttocks, and face, which SrA JT described as “red marks” but he
did “not believe there was any bruising at that point.” SrA JT—under the im-
pression he was a mandatory reporter—told SrA JC that she needed to report
the assault, and if she did not do so, he would. SrA JC then went to her apart-
ment where she called two military friends of hers, telling one, “I took pic-
tures.” Shortly after noon, those two friends came to SrA JC’s apartment, and
she showed them bruises on her neck and buttocks, as well as redness on her
wrists. One of the friends later testified that the injuries on SrA JC’s buttocks
looked “like when you hit something really hard and the—like the blood vessels
are popped underneath the skin.” The two friends discussed SrA JC’s reporting
options with her and helped her contact the base sexual assault response coor-
dinator (SARC) who told SrA JC to go directly to the emergency room. SrA JC
did so around 1530 hours, and she underwent a sexual assault forensic exam
from which she was not discharged until just before 2100 hours that night. The
exam disclosed bruising on SrA JC’s neck and buttocks; swelling on her clavi-
cle; abrasions on her chest and genitals; and fissures to her anal folds. The
nurse who conducted the exam noted the bruises on SrA JC’s buttocks were
blue, purple, and red in color, and she testified that the bruises on SrA JC’s
buttocks and those on her neck had circular patterns which could indicate they
were made by fingers. The exam included taking photographs which docu-
mented SrA JC’s injuries.
Earlier that day at 0900 hours, Appellant sent SrA JC a Facebook Messen-
ger message which asked, “You make it home?” Receiving no response, he sent
her two more messages about four hours later. The first read, “So I got a little
too drunk last nifgt . . . hope I didn’t overstep in boundaries . . . sorry.” The
second read, “It was a good time though. Thanks for hanging out!” He also sent
a text message to SrA MM that said, “My house is now Vegas.” Appellant sent
SrA JT two messages as well: “My place is Las Vegas” and “Wait did you come
back to get [SrA JC]?” The second of these messages arrived on SrA JT’s phone
just before 1530 hours—about the same time SrA JC was reporting to the
emergency room. SrA JT did not respond. Meanwhile, A1C RH sent text mes-
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United States v. Linck, No. ACM 39627
sages to SrA MM that morning trying to make arrangements for him, Appel-
lant, and SrA JC to go to breakfast, but SrA MM did not assist in that en-
deavor.
In the ensuing investigation, military authorities searched Appellant’s
apartment pursuant to a search authorization and found a restraint system
consisting of straps with Velcro cuffs along with a pair of metal handcuffs with
fuzzy purple covers. SrA JC’s DNA was found on both the Velcro cuffs and the
handcuff covers, although SrA JC said the metal handcuffs were never used on
her. Appellant’s DNA was found in semen retrieved from SrA JC’s vagina dur-
ing her forensic exam. SrA JC provided investigators a screenshot of the text
messages between her and SrA JT and a copy of her call log showing her efforts
to reach him in the hours just after the assault.
Appellant was charged with two specifications of rape for orally and digi-
tally penetrating SrA JC’s vulva while she was physically restrained, one spec-
ification of sexual assault by causing her bodily harm by penetrating her vulva
with his penis, and three specifications of aggravated sexual contact by touch-
ing her genitalia, buttocks, neck, and face with an intent to gratify his sexual
desire while restraining her to his bed. 6
During Appellant’s court-martial, SrA JC testified as to her fragmented
memories of the night’s events, some of which were more clear than others. She
did not remember talking about her ex-boyfriend during the ride from SrA JT’s
house. She remembered drinking wine at Appellant’s apartment, but she did
not remember how much she drank or whether she poured it into a cup first or
drank straight from the bottle. She remembered the specifics of the assault in
Appellant’s bedroom, but she did not remember earlier events, such as the
group having their pants off, her talking about SrA MM’s fetishes, her kissing
SrA MM, having a leash attached to her neck, Appellant performing oral sex
on her in the group setting, kissing SrA JT, or what SrA MM specifically said
when she stood up and refused to go to Appellant’s bedroom.
During cross-examination, trial defense counsel challenged SrA JC on her
claim that she had taken photographs of her injuries while she was in Appel-
lant’s bathroom by pointing out that the background of the pictures depicted
SrA JC’s own bathroom, not Appellant’s. SrA JC admitted she told both the
sexual assault nurse examiner and Air Force Office of Special Investigations
6Once Appellant was convicted, the military judge merged the two rape specifications
as well as the three aggravated sexual contact specifications for the purposes of sen-
tencing. This had no impact on the maximum sentence Appellant faced, which included
confinement for life without eligibility for parole.
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United States v. Linck, No. ACM 39627
agents that she had taken the pictures at Appellant’s apartment immediately
after the assault, statements which were false. SrA JC asserted she simply did
not recall whose bathroom she took the pictures in. She was further confronted
with the fact she had deleted certain text messages before providing screen-
shots to investigators. SrA JC admitted she deleted a message she sent to SrA
JT before going to the emergency room which read, “Im going to talk to a sarc
rep but since I already told you want happened you need to keep the sh*t con-
fidential.” SrA JC asserted she deleted the message because she was afraid
someone might hack into her phone, and she did not want anyone reading that
message.
SrA JC testified at trial that the Facebook Messenger exchange between
her and Appellant on the day of the party after she posted the hammock picture
was the first time she had corresponded with Appellant on Facebook. She said
she had not previously interacted with him in any other way. However, trial
defense counsel confronted SrA JC with the fact she and Appellant had actu-
ally matched with each other via an online dating application just over a month
prior to the party, and they had exchanged messages using that platform to
include discussing being in the same military unit. This conversation was both
brief and prosaic, with neither Appellant nor SrA JC making any suggestive
or otherwise noteworthy comments. At some point before the day of the party,
they became friends on Facebook. When confronted with the messages she had
exchanged with Appellant on the dating application, SrA JC said she had
simply forgotten about them.
SrA JC also testified she reunited with her boyfriend, SSgt ZC, a few weeks
after the assault, and the two remained together as a couple through the trial.
II. DISCUSSION
A. Legal and Factual Sufficiency
Appellant argues his conviction is legally and factually insufficient based
upon his assertion that SrA JC’s testimony is not credible. He identifies four
“areas of specific concern”: (1) the amount of alcohol SrA JC said she consumed
was inconsistent with her conduct; (2) the assault SrA JC described was incon-
sistent with the injuries documented in her sexual assault forensic exam; (3)
SrA JC made false statements about having not interacted with Appellant
prior to the night of the party, where she took pictures of her injuries, and her
reason for not leaving Appellant’s apartment when the others left; and (4) SrA
JC had motives to fabricate the allegations. We find Appellant’s claims unper-
suasive.
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United States v. Linck, No. ACM 39627
1. Law
We only affirm findings of guilty that are correct in law and fact and, “on
the basis of the entire record, should be approved.” Article 66(c), UCMJ, 10
U.S.C. § 866(c). 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 omit-
ted). Our assessment of legal and factual sufficiency is limited to the evidence
produced at trial. United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993) (cita-
tions omitted).
“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) (quoting United States
v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017)). “The term reasonable doubt, how-
ever, does not mean that the evidence must be free from conflict.” United States
v. Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (citing United States v.
Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986)). Circumstantial evidence may suf-
fice. See United States v. Kearns, 73 M.J. 177, 182 (C.A.A.F. 2014) (citing
Brooks v. United States, 309 F.2d 580, 583 (10th Cir. 1962)). “[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). As a result, “[t]he
standard for legal sufficiency involves a very low threshold to sustain a convic-
tion.” United States v. King, 78 M.J. 218, 221 (C.A.A.F. 2019) (alteration in
original) (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 ourselves] convinced of the [appellant]’s guilt beyond a
reasonable doubt.” 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.’”
Wheeler, 76 M.J. at 568 (alteration in original) (quoting Washington, 57 M.J.
at 399).
In order for Appellant to be found guilty of rape as charged here, the Gov-
ernment was required to prove beyond a reasonable doubt that: (1) Appellant
committed a sexual act upon SrA JC by penetrating her vulva with a part of
his body, (2) he did so with the intent to gratify his sexual desire, and (3) he
used unlawful force against her to carry out the attack. See Manual for Courts-
Martial, United States (2016 ed.) (MCM), pt. IV, ¶ 45.b.(2)(a). “Unlawful force”
is defined as “an act of force done without legal justification or excuse,” and
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United States v. Linck, No. ACM 39627
“force” includes “the use of such physical strength or violence as is sufficient to
overcome, restrain, or injure a person.” MCM, pt. IV, ¶ 45.a.(g)(6), (5). In this
case, the unlawful force alleged was Appellant restraining SrA JC to a bed.
For the sexual assault specification, the Government had to prove (1) Ap-
pellant committed a sexual act upon SrA JC by causing penetration, however
slight, of her vulva with his penis, and (2) he did so by causing bodily harm to
her. MCM, pt. IV, ¶ 45.b.(3)(b). “Bodily harm” is defined as “any offensive
touching of another, however slight, including any nonconsensual sexual act
or nonconsensual sexual contact.” MCM, pt. IV, ¶ 45.a.(g)(3). In order to sus-
tain a conviction for aggravated sexual contact, the Government had to prove
that (1) Appellant committed sexual contact upon SrA JC by touching parts of
her body (here, her genitalia, buttocks, neck, and face), (2) he did so with the
intent to gratify his sexual desire, and (3) he used unlawful force against her.
MCM, pt. IV, ¶ 45.b.(5)(a), (6)(a).
2. Analysis
We note at the outset that Appellant, in challenging the military judge’s
findings, does not specify whether he is contesting his conviction for certain
specifications or for all of them. For purposes of our analysis, we will assume
the latter.
Having carefully reviewed the evidence in this case in the light most favor-
able to the Government, we conclude a rational trier of fact could find Appel-
lant guilty of the offenses he was charged with beyond a reasonable doubt. SrA
JC testified that Appellant had restrained her to his bed using “a Velcro sort
of handcuff thing”—a set of restraints which were subsequently found in Ap-
pellant’s apartment and which had SrA JC’s DNA on them. Moreover, SrA JC
testified Appellant engaged in vaginal sexual intercourse with her, and Appel-
lant’s DNA was found in semen in SrA JC’s body. Taken together, these facts
demonstrate the restraints were applied to SrA JC at some point during the
night, as well as that Appellant penetrated her vulva with his penis.
Similarly, the fact SrA JC had physical injuries after the encounter is not
subject to serious debate. Within a few hours of the assault, SrA JC showed
SrA JT red marks on her face, neck, hips, and buttocks. Not much later, she
showed her injuries to the two military friends who came to her apartment,
one of who described the injuries to SrA JC’s buttocks as looking like “the blood
vessels [were] popped” like when one hits “something really hard.” That after-
noon, medical professionals documented injuries to SrA JC’s neck, clavicle,
chest, buttocks, genitals, and anus, all consistent with SrA JC’s description of
the assault. Perhaps most compellingly, the photographs taken during the sex-
ual assault forensic exam and which were admitted as evidence in Appellant’s
court-martial clearly show extensive bruising to SrA JC’s neck and buttocks.
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United States v. Linck, No. ACM 39627
The evidence of her injuries, in conjunction with her testimony, establishes
that Appellant did apply force and violence to SrA JC’s buttocks, neck, and
face. Although Appellant was not charged with attempting to penetrate SrA
JC’s anus with his fingers, the injuries to her anal folds were consistent with
such an attempt and further corroborate SrA JC’s account of the assault. Con-
sidering Appellant had been orally and digitally penetrating SrA JC’s vulva
when the group of Airmen were still at Appellant’s house, it is no great leap to
believe Appellant repeated that conduct after they left and Appellant had re-
strained SrA JC to his bed.
Beyond this physical and scientific evidence and SrA JC’s testimony, the
text messages Appellant sent SrA DV while they were at SrA JT’s house
demonstrate it was Appellant’s idea to move the group to his apartment and to
specifically bring SrA JC, and that either Appellant or A1C RH (or both)
wanted to have sex with SrA JC. The next morning, Appellant sent messages
to SrA JC and SrA MM describing his apartment as “Vegas,” from which a
rational factfinder could draw a number of conclusions, for example, that Ap-
pellant was saying he got lucky or that what happened at his apartment
needed to stay at his apartment. A1C RH’s and Appellant’s attempt to arrange
to go to breakfast with SrA JC may very well have been an effort to assess how
much SrA JC remembered or to persuade her not to report the episode. Such a
possibility is buttressed by the fact Appellant sent SrA JC a message in the
afternoon apologizing and saying, “hope I didn’t overstep in boundaries,” as
well as thanking her “for hanging out.” Although these messages and Appel-
lant trying to make breakfast plans could all have innocent explanations, when
they are combined with the other evidence in the case, a rational factfinder
could conclude they paint Appellant as both setting the stage for the assault
and being astutely aware of the liability he faced for his conduct.
Appellant’s attacks on appeal are unavailing and do not undermine the ev-
idence in the case in a meaningful way. Appellant argues that SrA JC must
have lied about how much alcohol she consumed, because there was “no evi-
dence of . . . physical indicia of the level of intoxication” she claimed. From this
proposition, Appellant points to SrA JC’s fragmented memory, suggesting SrA
JC either fabricated her testimony or deceptively claimed to not remember “in-
formation she views as unfavorable to her case.” This line of attack misses the
mark for several reasons. First, evidence of SrA JC’s intoxication was in fact
introduced, to include SrA JT’s testimony that SrA JC appeared to be “becom-
ing unresponsive” while A1C RH was choking her and SrA MM’s testimony
that SrA JC looked “[p]retty exhausted” and “really out of it” when the rest of
the Airmen decided to go home. Second, the aspects of the evening SrA JC tes-
tified she could not recall were described by other witnesses in the case, which
is to say that this evidence was introduced regardless of SrA JC’s lack of recol-
lection. Thus, SrA JC would have had little ability to shape the evidence in the
11
United States v. Linck, No. ACM 39627
case by falsely alleging she did not remember those events. Third, evidence
adduced at trial indicate SrA JC’s alcohol consumption largely occurred at SrA
JT’s house in a compressed period of time, approximately between the hours of
2000 and 2200. Thus, a rational factfinder could conclude SrA JC’s recollection
would have improved with respect to events that occurred later in the night
versus those that occurred closer in time to significant alcohol consumption.
Such an assessment would be consistent with SrA JC’s testimony that she
could not remember events in the group setting at Appellant’s house, but she
could remember details of the assault several hours later. Fourth, because of
the absence of any evidence SrA JC consented to the conduct in Appellant’s
bedroom, her relative degree of intoxication has limited probative value other
than to explain her lack of recall. Finally, the evidence of SrA JC’s physical
injuries and the results of the DNA analysis corroborate her account of the
assault entirely independent of her level of intoxication. Thus, even if we were
to assume—which we do not—that SrA JC falsely claimed to have consumed
more alcohol than she actually did, her in-court testimony is corroborated by
other evidence in this case, dramatically reducing the relevance of her actual
degree of intoxication. We similarly do not see any purportedly false state-
ments about the amount of alcohol she consumed giving rise to the notion that
SrA JC’s credibility is so poor that she falsely accused Appellant of violently
assaulting her and then falsely testified about it. Instead, a rational factfinder
could conclude any inconsistencies in SrA JC’s recollection of her precise alco-
hol intake are little more than the product of the alcohol she did consume.
Appellant’s next argument is that SrA JC’s injuries, as documented in the
written portion of the forensic exam, were “minor” and “cannot be conclusively
ascribed to [Appellant]” due to the fact she was also choked by A1C RH. Appel-
lant specifically points to SrA JC’s assertion that Appellant slapped her “doz-
ens of times,” yet the medical examiner did not document facial injuries and
the pictures SrA JC took of herself only showed a slight redness to her face.
Appellant’s argument stands in stark contrast to the evidence actually adduced
in this case which includes medical photographs of substantial bruising to SrA
JC’s body as well as eyewitness testimony indicating SrA JC’s bruises became
more pronounced as time passed. Appellant’s characterization of SrA JC’s in-
juries as “minor” is also at odds with her medical exam which found widespread
bruising to her body and injuries to her genitals and anus. Although there was
evidence A1C RH was using a leash to choke SrA JC, she testified Appellant
choked her in his bedroom with his hands, an assertion corroborated in part by
the nurse examiner’s observation of round marks on SrA JC’s neck similar to
those on her buttocks. Moreover, even if some, or indeed all, of the bruising on
SrA JC’s neck was caused by A1C RH, such would not absolve Appellant of his
criminal culpability for later grasping SrA JC’s neck against her will.
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United States v. Linck, No. ACM 39627
Appellant further argues SrA JC has poor credibility based upon her erro-
neous testimony that she had not previously interacted with Appellant before
the day of the party; which bathroom she took photographs of her injuries in;
and her reason for not leaving Appellant’s apartment with the other three Air-
men. In general, these three areas of testimony are peripheral to the charges
in this case and they collectively indicate simple mistakes more than they
demonstrate intentional dishonesty. To the first point, SrA JC and Appellant
were friends on Facebook prior to the party which would explain Appellant
responding to her hammock post via Facebook Messenger. SrA JC’s telling Ap-
pellant to get to the party also demonstrates at least a passing familiarity and
level of comfort with Appellant as well her knowledge that he was coming to
(or at least welcome at) SrA JT’s party. When confronted with the messages
she exchanged with Appellant on the dating application, SrA JC readily ad-
mitted to the exchange, but said she had forgotten about it. Having reviewed
the short and rather mundane conversation from the dating application, we
see nothing remarkable, much less unbelievable, about SrA JC forgetting
about it by the time of Appellant’s court-martial—some 15 months later. More-
over, based upon her familiarity with Appellant and the fact she was friends
with Appellant on Facebook, it would be implausible to conclude SrA JC had
never interacted with him. Her statement to the contrary could therefore be
understood as a mistake rather than an attempt to deceive.
Whether SrA JC took photographs of her injuries in Appellant’s bathroom
or some other bathroom is somewhat more difficult to reconcile considering
SrA JC told investigators and the nurse examiner shortly after the assault she
had taken the pictures in Appellant’s bathroom. A rational factfinder could
conclude she was lying in order to portray the pictures as being taken closer to
the assault than they actually were. On the other hand, a rational factfinder
could also conclude SrA JC’s recollection of where she was when she took the
pictures was clouded by her emergence from her drunken state, the stress of
the day’s events in which she decided to report the assault and undergo a fo-
rensic exam, and that she was reeling from the trauma of being violently as-
saulted just hours earlier. Ultimately, however, where she took the pictures is
almost entirely immaterial because she showed the pictures to the nurse ex-
aminer during the sexual assault forensic exam the day she reported the as-
sault. SrA JC also told a friend of hers she had taken pictures before noon.
Thus, SrA JC seemingly took the pictures at some point between the end of the
assault and noon that same day. The forensic photographs taken during her
medical exam were significantly more detailed and graphic, so the pictures
taken in the bathroom—whichever bathroom it was—had little probative value
in comparison. Considering the evidentiary insignificance of the bathroom pic-
tures and the relatively short window of time in which they could have been
taken, any false statement about which bathroom the pictures were taken in
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United States v. Linck, No. ACM 39627
was collateral at best and falls far short of indicting SrA JC’s credibility with
respect to the assault.
Similarly, what precisely SrA JC told the Airmen when they left Appel-
lant’s apartment does not call into question SrA JC’s credibility in any mean-
ingful way. SrA JC says she told the group they should all stay at Appellant’s
apartment out of concern for their safety. SrA JT and SrA MM remembered
SrA JC wanting to stay on Appellant’s couch because she was tired. These two
positions are neither inconsistent nor all that different, and, considering all
had been drinking, there is nothing particularly notable about the fact the Air-
men had different interpretations and recollections of the conversation. In any
event, the upshot of the short discussion was that SrA JC did not wish to leave
with the other three Airmen, a position all understood.
Appellant’s final attack is rooted in the theory that SrA JC had motives to
fabricate the allegation Appellant sexually assaulted her. He points to three
potential motives, none of which is particularly well-supported by the evidence.
First, he argues that because SrA JC had recently broken up with her boy-
friend, she was in “an emotionally vulnerable time,” and a consensual sexual
encounter “could lead to obvious regret and motive to fabricate.” As we under-
stand this argument, Appellant is suggesting SrA JC may have felt guilty
about having consensual sex with Appellant, so she claimed Appellant as-
saulted her. Second, SrA JC may have wanted to “avoid trouble” with SrA JT,
who was upset that SrA JC did not leave Appellant’s apartment with the rest
of the group. Third, SrA JC might have been embarrassed by the night’s
events.
Although SrA JC testified she and her boyfriend, SSgt ZC, had, in fact,
broken up again and SrA DV said she spent the car ride to Appellant’s house
talking about the breakup, there was no evidence SrA JC was “emotionally
vulnerable” as a result. Similarly, no evidence was adduced as to when SrA JC
next talked to SSgt ZC at all, much less when she told him about the assault.
No evidence was offered regarding either SSgt ZC’s views on SrA JC engaging
in sexual conduct while they were broken up or SrA JC’s feelings of guilt (or
lack thereof) regarding the same.
Appellant’s claim that SrA JC alleged she was assaulted to “avoid trouble”
with SrA JT is difficult to comprehend. SrA JT had watched SrA JC kiss SrA
MM and then receive oral sex from Appellant, who was also doing the same to
SrA MM while A1C RH was leaning over and choking the two women—SrA JC
with a leash. Whether or not SrA JC had consensual private sex with Appellant
thereafter would seem to be of little consequence. SrA JC also did not immedi-
ately tell SrA JT she had been assaulted when he came to pick her up, which
undercuts the theory she was trying to avoid upsetting him. Although SrA JT
expressed frustration that SrA JC did not leave with the rest of the group and
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United States v. Linck, No. ACM 39627
SrA JC perceived he was frustrated when she told him he needed to pick her
up early that morning, SrA JC waited to tell him about the assault until later
in the morning. There is no evidence SrA JT was still upset when SrA JC woke
up; to the contrary, SrA JT made breakfast for the two of them, and SrA JC
explained while they ate she had been assaulted, which hardly suggests SrA
JC needed to resort to falsely alleging she had been raped to diffuse whatever
tension may have existed.
Appellant’s third argument as to SrA JC’s alleged motives—that she was
embarrassed by the sexual conduct in Appellant’s bedroom—highlights the
fundamental infirmity running through all of Appellant’s theories, which is
that if SrA JC was so concerned about others’ reactions to her private sexual
conduct with Appellant, she would have simply said nothing happened or not
said anything at all. Appellant himself was seemingly willing to have what
happened at his apartment stay at his apartment. Yet, SrA JC reported the
assault after a few hours of sleep to SrA JT, then to two of her friends, then to
the SARC, and then to the sexual assault nurse examiner, all in the same day
as the assault. By doing so, SrA JC guaranteed significant scrutiny of the
events of that night, not just by law enforcement and medical professionals,
but by her fellow Airmen, her chain of command, and even SSgt ZC. The more
plausible explanation is the simpler one: Appellant assaulted SrA JC, and she
promptly reported it.
Viewing the evidence in this case in the light most favorable to the Prose-
cution, we conclude a rational trier of fact could find the essential elements of
the offenses Appellant was convicted of beyond a reasonable doubt. The mili-
tary judge’s findings of guilt are therefore legally sufficient. We have taken a
fresh and impartial look at the evidence, and we are ourselves convinced, be-
yond a reasonable doubt, that Appellant is guilty. His conviction is factually
sufficient.
B. Denial of Forensic Toxicologist
Appellant’s defense team was appointed a forensic psychologist, but the
military judge denied their motion to appoint a forensic toxicologist, a decision
Appellant now challenges on appeal.
1. Law
Military members facing court-martial are entitled to government-provided
expert assistance when it is necessary to their defense. United States v. Ander-
son, 68 M.J. 378, 383 (C.A.A.F. 2010). In order to be granted such assistance,
an accused must demonstrate:
a reasonable probability exists that (1) an expert would be of as-
sistance to the defense and (2) that denial of expert assistance
would result in a fundamentally unfair trial. To establish the
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United States v. Linck, No. ACM 39627
first prong, the accused must show (1) why the expert assistance
is needed; (2) what the expert assistance would accomplish for
the accused; and (3) why the defense counsel were unable to
gather and present the evidence that the expert assistance
would be able to develop.
United States v. Freeman, 65 M.J. 451, 458 (C.A.A.F. 2008) (quotation marks
and internal citations omitted).
We review a military judge’s decision to deny the appointment of an expert
for an abuse of discretion, and we will only reverse that decision when the mil-
itary judge’s findings of fact are clearly erroneous or when the military judge
has adopted an erroneous view of the law. See United States v. Lee, 64 M.J.
213, 217 (C.A.A.F. 2006).
2. Additional Background and Analysis
As at trial, Appellant fails on appeal to explain how an expert toxicologist
would assist the Defense. Trial defense counsel argued to the military judge
that even though the Defense had a forensic psychologist who could assist
counsel in understanding alcohol’s impacts on memory, that expert could not
address the “physical aspect” of intoxication. Trial defense counsel asserted
this case involved the “biochemistry” of “the effects of the alcohol on the con-
sciousness,” specifically, “what kind of physical effects take place when you
consume a particular amount of alcohol, in a particular time period.” As we
understand the theory advanced at trial, the Defense wished to explore the
scientific aspects of a person drinking to the point of passing out, but then later
waking up “really quick, fully alert.” On appeal, Appellant asserts he was de-
nied the ability to present any evidence of SrA JC’s “likely level of conscious-
ness, memory, or the probable physical impact from alcohol,” and expert assis-
tance was needed to assess SrA JC’s credibility and the “physical possibility of
[her] allegations.”
In his ruling, the military judge noted there was “ample evidence” as to SrA
JC’s intoxication. He also pointed out that a toxicologist would be hampered in
trying to compute SrA JC’s blood-alcohol level given the fact no one could say
just how much alcohol she had consumed. The military judge also noted trial
defense counsel had failed to point to any scientific literature “or anything that
possibly could have been discovered through normal research methods” that
would indicate a toxicologist could be helpful under the facts presented here.
The military judge also highlighted that the Defense had an appointed forensic
psychologist who could assist with memory issues and related alcohol impacts.
We agree with the military judge. At trial, the Defense failed to explain
how a toxicologist would assist Appellant and only made vague and generalized
claims that such an expert would somehow assist in understanding alcohol’s
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United States v. Linck, No. ACM 39627
effect “on the consciousness.” Appellant fares no better on appeal, as he still
fails to cogently describe the issue he believes a toxicologist would help resolve.
As the military judge explained in his ruling, the evidence at trial did not pre-
cisely establish how much alcohol SrA JC consumed. Although SrA JC said she
drank her six-pack of beer, another can of beer, and a shot of alcohol of an
indeterminate size at SrA JT’s house, the amount of wine she consumed at
Appellant’s house is unknown. On appeal, Appellant challenges whether SrA
JC actually drank the amount of alcohol she claimed, further obfuscating the
matter. Thus, a toxicologist would be left generally explaining the effects of
alcohol and how the body metabolizes it without being able to specifically relate
those concepts to SrA JC. The utility of such testimony becomes even less clear
considering the specifics of this case such as witness testimony as to SrA JC’s
level of intoxication, which is seemingly superior to an expert’s hypothesis as
to how drunk she was or was not. Even after those witnesses left Appellant’s
apartment, SrA JC’s testimony is that she fell asleep and woke up to Appellant
violently assaulting her, an assault which she describes with relative specific-
ity. We do not understand, and Appellant does not explain, what gap in
knowledge with respect to this period of time an expert could fill that would be
helpful to the Defense.
Appellant also argued at trial an expert would have assisted the Defense
in understanding how SrA JC would wake up “really quick, fully alert” after
apparently passing out due to her alcohol consumption. Appellant, however,
never established SrA JC woke up “really quick” or “fully alert.” Instead, SrA
JC’s testimony was that the next thing she remembered after going to sleep on
the couch was being physically assaulted by Appellant in his bed and her trying
to fight him off. SrA JC’s formation of memories, however, is not the same as
her level of consciousness, and Appellant’s assertions about when and how she
woke up are not supported by any evidence. Even if Appellant had established
that factual predicate, he has not explained how expert assistance on this point
could assist in his defense. As such, Appellant failed to meet his burden to
demonstrate an expert should have been appointed, and the military judge did
not err in denying his request.
C. Delay in Appellate Review
Appellant’s case was docketed with this court on 4 February 2019, and Ap-
pellant filed his initial assignments of error 172 days later on 26 July 2019
after requesting and receiving three enlargements of time over the Govern-
ment’s objection. The Government filed its answer 32 days later on 27 August
2019.
“We review de novo claims that an appellant has been denied the due pro-
cess right to a speedy post-trial review and appeal.” United States v. Moreno,
63 M.J. 129, 135 (C.A.A.F. 2006) (citing United States v. Rodriguez, 60 M.J.
17
 United States v. Linck, No. ACM 39627
239, 246 (C.A.A.F. 2004); United States v. Cooper, 58 M.J. 54, 58 (C.A.A.F.
2003)). In Moreno, the United States Court of Appeals for the Armed Forces
(CAAF) established a presumption of facially unreasonable delay when the
Court of Criminal Appeals does not render a decision within 18 months of dock-
eting. 63 M.J. at 142. Where there is such a delay, we examine the four factors
set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972): “(1) the length of the
delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to
a timely review and appeal; and (4) prejudice [to the appellant].” Moreno, 63
M.J. at 135 (citing United States v. Jones, 61 M.J. 80, 83 (C.A.A.F. 2005);
Toohey v. United States, 60 M.J. 100, 102 (C.A.A.F. 2004)). “No single factor is
required for finding a due process violation and the absence of a given factor
will not prevent such a finding.” Id. at 136 (citing Barker, 407 U.S. at 533).
This case exceeded the 18-month standard between docketing and appel-
late decision by approximately two weeks. With respect to exceeding the 18-
month standard for producing this opinion, we note the record of trial
is lengthy, including over 860 pages of transcript and 23 appellate exhibits. In
addition, Appellant took nearly six months to file his assignments of error after
requesting three enlargements of time. We are affirming the findings and sen-
tence in Appellant’s case, and Appellant remains in confinement.
In Moreno, the CAAF identified three types of cognizable prejudice for pur-
poses of an appellant’s due process right to timely post-trial review: (1) oppres-
sive incarceration; (2) anxiety and concern; and (3) impairment of the appel-
lant’s ability to present a defense at a rehearing. Id. at 138–39 (citations omit-
ted). Appellant has not demonstrated any oppressive incarceration, and his
appeal has not resulted in any reduction in his sentence. He has not alleged
any particularized anxiety or concern. Since we are not returning his case for
a rehearing, his ability to present a defense at such a rehearing is not impacted.
Finding no qualifying prejudice from the delay, we also conclude there is no
due process violation, as the delay is not so egregious as to “adversely affect
the public’s perception of the fairness and integrity of the military justice sys-
tem.” United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006).
Recognizing our authority under Article 66(c), UCMJ, we have also consid-
ered whether relief is appropriate even in the absence of a due process viola-
tion. See United States v. Tardif, 57 M.J. 219, 225 (C.A.A.F. 2002). After con-
sidering the factors enumerated in United States v. Gay, 74 M.J. 736, 744 (A.F.
Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016), we conclude it is not.
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United States v. Linck, No. ACM 39627
III. CONCLUSION
The approved findings and the sentence are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the ap-
proved findings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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