United States v. Specialist JOHN M. CHANCELLOR

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UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
FLEMING, WILLIAMS, and COOPER
Appellate Military Judges

UNITED STATES, Appellee
v.
Specialist JOHN M. CHANCELLOR
United States Army, Appellant

ARMY 20230028

Headquarters, U.S. Army Southern European Task Force, Africa
Thomas P. Hynes, Military Judge
Colonel Erik L. Christiansen, Staff Judge Advocate

For Appellant: Captain Amir R. Hamdoun, JA; Joshua A. Hill, Esquire (on brief).

For Appellee: Colonel Richard E. Gorini, JA; Lieutenant Colonel Marc B. Sawyer,
JA; Captain Alex J. Berkun, JA (on brief).

12 September 2025

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
WILLIAMS, Judge:

An enlisted panel convicted appellant, contrary to his pleas, of two
specifications of sexual assault and one specification of abusive sexual contact in
violation of Article 120, Uniform Code of Military Justice,
10 U.S.C. § 920
(2019)
[UCMJ]. The military judge sentenced appellant to a dishonorable discharge and
confinement for 18 months.!?

' For Specification 2 of The Charge, to be confined for 18 months; for Specification
4 of The Charge, to be confined for 12 months; and for Specification 6 of The
Charge, to be confined for 6 months; all sentences to confinement to be served
concurrently.

* The convening authority approved appellant’s request to defer automatic
forfeitures until entry of judgment and to waive automatic forfeitures for 6 months

(continued...)
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Appellant raises five assignments of error, one of which warrants discussion
and relief.’

BACKGROUND

Appellant and his if were friends with the victim and
her husband, ie The group frequently spent time together and played games

in Aviano, Italy.

The victim was close with ]—fand felt i around her.

Following a fight with her husband, the victim called and asked to go to
’s home. a si yes.

At a home, the victim and alked and began to drink alcohol.
The victim testified she drank multiple alcoholic beverages, over several hours. She

drank a Moscow Mule, a Gatorade and vodka, and other unknown drinks. She did
not finish all her drinks. She testified she became tipsy and drunk and at one point
in time, spilled one of her beverages.

When the victim arrived at the home, appellant was playing video games
upstairs. Later, he joined the victim and his wife downstairs. The group began to
play games at the dining room table. One game involved drawing cards and either
following the card’s instruction or drinking alcohol. Often the card’s instruction
required a participant to pantomime a sexually charged act. They played games for a
bit, but around 2042 hours, the victim texted her husband and asked him to pick her
up because she was drunk. Her husband declined. Accordingly, she decided to stay
the night at appellant and a home.

After playing games and spending time outside, the group retired to the living
room to watch anime. There they each took up spots on the couch. The victim lay
on the couch facing the television. Appellant and MMM sat on the other side. The
victim testified appellant touched her vagina with his foot as she lay on the couch in

(... continued)

after entry of judgment. The Judgment of the Court correctly reflects the approved
request to defer automatic forfeitures but omits inclusion of the convening
authority’s decision to waive automatic forfeitures for a period of 6 months. The
Judgment of the Court, dated 13 November 2023, is amended to reflect the
convening authority’s decision to waive automatic forfeitures, after entry of
judgment for 6 months.

> We have fully and fairly considered the matters personally raised by appellant
pursuant to United States v. Grostefon,
12 M.J. 431
(C.M.A. 1982), and determine
them to be without merit.
CHANCELLOR — ARMY 20230028

the fetal position. However, the victim did not confront him or tell him to stop. The
victim testified, because she was drunk, tired, and wanted to go to bed, that she
decided to raise her discomfort the next morning. She next fell asleep on the couch.

Appellant and his wife decided to go to bed, after watching approximately an
hour of television. They went upstairs to their room; the victim remained downstairs
on the couch asleep.

Later in the night, the victim and appellant ran into each other at the
downstairs bathroom. The victim had awoken and needed to use the restroom.
Appellant, who also needed to use the restroom, went downstairs. He wore a shirt,
but he was nude from the waist down. As the victim exited the bathroom, appellant
opened the door. She averted her gaze and returned to the couch to sleep.

Appellant approached the victim on the couch. She lay on her stomach.
“[G]lroggy,” “dozing in and out,” and “tipsy,” the victim testified she felt a hand on
her thigh and then it moved up to penetrate her vagina. She did not respond.
Appellant testified he asked the victim, “do you want to do this?” The victim did
not answer and testified she froze. Appellant next pulled her shorts and underwear
down to her mid to upper thigh and penetrated her vagina with his penis.
Throughout the encounter she did not say anything or resist. She kept her eyes
closed through most of the event. Appellant stopped, pulled up the victim’s shorts
and underwear, and went back upstairs. He spent approximately fifteen to twenty
minutes downstairs.

The victim quickly reached out for help. She texted her husband, despite it
being approximately 0300 hours, that appellant touched her as she tried to sleep, and
she wanted to go home. Her husband did not respond. The victim then texted
Ht wo minutes later—approximately five minutes after appellant returned
upstairs—and asked her to come downstairs. ae... appellant went
downstairs.

and appellant found the victim in a hysterical state. The victim
asked appellant, “[dJid you touch me?” Appellant denied he touched her. As the
victim collected herself, took her husband upstairs and confronted him with
the victim’s allegation. Appellant again denied anything happened with the victim.

drove the victim home. The victim repeated she did not consent
to appellant’s actions, but [J countered he could not have done anything.
GR © x plained she and appellant tried to have sex, after watching anime,
but were unsuccessful because appellant could not obtain an erection. The victim
continued to cry and said she wanted an apology.
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The victim entered her home, broke down, and cried. She told her husband
what happened. She told her husband she did not consent. They went to bed.

The victim woke the next morning and observed blood after using the
restroom. Consequently, she went to the hospital and underwent a sexual assault
forensic examination.

The victim reported the assault. Army Criminal Investigative Division special
agents investigated and questioned appellant. Appellant initially denied he had any
sexual or physical contact with the victim. Ultimately, he admitted he had sex with
her, but he quickly stopped after he felt regret because his wife was upstairs. He
claimed his actions were consensual, and the victim appeared to respond favorably
when he “tested the waters.” He noted she did not resist, did not say no, and seemed
to moan with pleasure during the encounter.

At defense counsel’s request, the convening authority appointed Major (MAJ)
a.. an expert consultant and potential expert witness in the field of forensic
psychology. At trial, defense counsel requested to call him to testify as an expert
witness on alcohol issues. The military judge denied the request during a Rule for
Courts-Martial [R.C.M.] 802 conference. Summarizing his ruling, the military judge
stated:

The defense asked to offer Major ma as an expert witness
on alcohol issues. I denied that request because there’s no
evidence on the record on how much alcohol the alleged
victim consumed. So, there’s no reliable basis to make an
assessment, and there’s no basis to believe that this
evidence would assist the fact finder.

Defense counsel clarified MAJ would opine on the victim’s level of intoxication
based on the amount of alcohol she stated she consumed both in her testimony and
“what was included in the evidence packet ... .” Counsel noted MAJ {would
provide an opinion on the victim’s ability to consent or whether she was asleep.
Subsequently, the military judge stated, “[a]nd I haven’t changed my — the ruling
that I summarized on [MAJ ws) testimony.”

LAW

We review a military judge’s ruling to deny expert testimony for an abuse of
discretion. United States v. Houser,
36 M.J. 392, 397
(C.M.A. 1993) (internal
citation omitted); United States v. Lloyd,
69 M.J. 95, 99
(C.A.A.F. 2010) (internal
citation omitted). “An abuse of discretion occurs when the trial court’s findings of
fact are clearly erroneous or if the court’s decision is influenced by an erroneous
view of the law.” Lloyd,
69 M.J. at 99
(internal citation omitted). “‘[T]he abuse of
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discretion standard of review recognizes that a judge has a range of choices and will
not be reversed so long as the decision remains within that range.’” United States v.
Freeman,
65 M.J. 451, 453
(C.A.A.F. 2008) (citing United States v. Gore,
60 M.J.
178, 187
(C.A.A.F. 2004)).

To earn deference, military judges must create a “clear record” for review.
United States v. Finch,
79 M.J. 389
, 397 (C.A.A.F. 2020) (citing United States v.
Flesher,
73 M.J. 303, 311
(C.A.A.F. 2014)). “‘[W]here the military judge places on
the record his analysis and application of the law to the facts, deference is clearly
warranted.’” Jd. (quoting Flesher,
73 M.J. at 312
). Conversely, less deference is
due a military judge who fails to create a clear record that describes his findings of
fact, conclusions of law, and analysis thereof. Jd. (quoting Flesher,
73 M.J. at 312
).

To admit expert testimony, a litigant must establish: (1) the expert’s
qualifications; (2) the subject matter of the proffered testimony; (3) the basis for the
testimony; (4) the legal relevance of the evidence; (5) the reliability of the evidence;
and (6) that the probative value of the evidence is not substantially outweighed by
the danger of unfair prejudice, confusion of the issues, misleading the members,
undue delay, waste of time, or is needlessly cumulative evidence. Houser,
36 M.J. at
397
(citing Military Rule of Evidence [Mil. R. Evid.] 702, 703, 401, 402, 403;
United States v. Gipson,
24 M.J. 246
(C.M.A. 1987)).

“Whether rooted directly in the Due Process Clause .. . or in the Compulsory
Process or Confrontation clauses of the Sixth Amendment .. . the Constitution
guarantees criminal defendants a meaningful opportunity to present a complete
defense.” Crane v. Kentucky,
476 U.S. 683, 690
(1986) (internal citation and
quotations omitted). “Under the Compulsory Process Clause, a defendant has a
‘right to call witnesses whose testimony is material and favorable to his defense.’”
United States v. Bess,
75 M.J. 70, 75
(C.A.A.F. 2016) (quoting Rock v. Arkansas,
483
U.S. 44, 52
(1987)). This right is not without limit however; an appellant has “the
right to present .. . that evidence which is legally and logically relevant.” United
States v. Dimberio,
56 M.J. 20, 24
(C.A.A.F. 2001) (citing Chambers v. Mississippi,
410 U.S. 284
(1973)). “Rules such as Mil. R. Evid. 403 ... that exclude evidence
from criminal trials do not abridge an accused’s constitutional right to present a
defense so long as they are not arbitrary or disproportionate to the purposes they are
designed to serve.” Jd. at 26. “To rise to the level of constitutional error, a ruling
must have infringed upon a weighty constitutional interest of the accused.”
Id.
(citing United States v. Scheffer,
523 U.S. 303, 308
(1998)).

“*For nonconstitutional errors, the Government must demonstrate that the
error did not have a substantial influence on the findings.’” United States v. Clark,
62 M.J. 195, 200
(C.A.A.F. 2005) (quoting United States v. McCollum,
58 M.J. 323,
342
(C.A.A.F. 2003)). The inquiry is not whether sufficient evidence was produced
to support the result; a reviewing court must “examine ‘whether the error itself had
CHANCELLOR —- ARMY 20230028

substantial influence.’” Jd. (quoting McCollum,
58 M.J. at 342
). When evaluating
the prejudice caused by a military judge’s erroneous evidentiary ruling we consider
“(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.” Jd. at 200-01 (quoting United States v. Kerr,
51 M.J. 401, 405
(C.A.A.F.
1999)).

DISCUSSION
A. Military Judge's Ruling

As an initial matter, the military judge is due minimal deference. He did not
discuss the applicable law or his legal analysis on the record to explain his decision.*
He did not analyze the Houser factors or conduct a Mil. R. Evid. 403 balancing test
on the record. Accordingly, he did not develop a clear record and receives less
deference. Finch, 79 M.J. at 397.

The military judge abused his discretion when he prevented MAJ Bhtom
testifying. First, the military judge’s abbreviated findings of fact were clearly
erroneous. Summarizing the findings of fact he reached during the R.C.M. 802
conference, he stated, “no evidence [existed] on the record on how much alcohol the
alleged victim consumed.” The victim testified she drank five mixed alcoholic
beverages. While perhaps underdeveloped as to the exact volume consumed, it is
incorrect to say there was no evidence of the victim’s alcohol consumption. Second,
the military judge’s legal analysis was similarly deficient. He observed, “there’s no
basis to believe that this evidence would assist the fact finder.”> He did not cite
Houser or any other relevant legal authority.

“It is perilous to conduct substantive matters in a closed conference. Use of R.C.M.
802 conferences to dispose of substantive matters is disfavored because neither the
parties’ respective positions, nor the military judge’s factual conclusions and legal
analysis, are developed on the record. While the military judge must summarize
what was discussed, that summary will likely be underdeveloped. It certainly was in
this case.

* To be sure, defense counsel had an obligation to develop the appellate record.
However, the military judge limited defense counsel’s ability to do so. Indeed, when
counsel asked to supplement his position regarding MAJ the military judge noted
he could do so “briefly.” Then, when counsel began to describe his position, the
military judge interrupted him. We will not penalize defense counsel for an
undeveloped record where the military judge’s actions precluded counsel from
establishing one.
CHANCELLOR — ARMY 20230028

Additionally, “[a]s a threshold matter . . . the military judge was obligated to
determine whether [MAJ Rs] testimony would be helpful to the panel.” Flesher,
73 M.J. at 313
. An expert may testify if his testimony would “assist the trier of fact
to understand the evidence or determine a fact in issue.” Jd. (internal citation
omitted); see also Mil. R. Evid. 702(a). The military judge did not accomplish this
duty. Defense counsel proffered MAJ a would testify about the victim’s level of
intoxication and its bearing on her ability to consent. Defense counsel clarified
MAJ fl would consider both the victim’s trial testimony and material in the
evidence packet. Ultimately, counsel sought to introduce MAJ fs opinion on the
victim’s ability to consent or if she was asleep. Although brief, defense counsel
proffered sufficient detail to establish MAJ s testimony would be logically
relevant. As a forensic psychologist, defense counsel stated MAJ J could provide
expert testimony on intoxication. The panel heard the victim testify she drank
alcohol and was, at some point, drunk. Consequently, MAJ i: testimony appears
to meet the low threshold to be found relevant. Mil. R. Evid. 401(a)-(b); United
States v. Guihama,
85 M.J. 48
, 55 (C.A.A.F. 2024) (reiterating “[t]he relevance
standard is a low threshold” (internal quotations and citation omitted) (alteration in
original)).

The record does not disclose how the military judge analyzed defense
counsel’s proffer that MAJ Is opinion would be informed by the victim’s
testimony and the evidence packet. Certainly, MAJ i. opinion could be informed
by both in-court testimony and material reviewed outside of trial. Mil. R. Evid. 703
(noting an expert’s opinion may be based on facts or data he has “been made aware
of or personally observed.”); see also, United States v. Sanchez,
65 M.J. 145, 150
(C.A.A.F. 2007) (noting a military judge must determine whether the expert’s
conclusion could “reliably follow from the facts known to the expert... .”)
(emphasis added). Defense counsel stated MAJ i: opinion would be based on the
victim’s testimony and information “included in the evidence packet.”

Logically relevant expert testimony “may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the members.” Houser,
36 M.J. at 399
-400 (citing Mil. R. Evid. 403).
Here the military judge is due minimal deference because he failed to “articulate
[his] balancing analysis on the record.” United States v. Manns,
54 M.J. 164, 166
(C.A.A.F. 2000). He merely noted “there’s no basis to believe that this evidence
would assist the fact finder.” This abbreviated finding provides insufficient insight
into how the military judge balanced the probative value of MAJ ms potential
testimony with the Mil. R. Evid. 403 factors. Major i; proffered testimony would
have been probative to the victim’s mental and physical state that evening, who
testified several times that she was drunk. Further, she described her condition
during the assault as, “a little groggy” and that she “was dozing in and out” because
she was “a little tipsy.” Major [fs testimony may have proven useful for the panel
CHANCELLOR — ARMY 20230028

to place the entirety of the victim’s testimony in context with her alcohol
consumption.

B. Prejudice®

Error alone does not warrant relief. To obtain relief the error must have
materially prejudiced appellant’s substantial rights. In light of the evidence
admitted and excluded during trial, the materiality of MAJ Ms denied testimony
gains greater weight. Accordingly, we conclude the exclusion of MAJ B:
testimony did result in prejudice to the appellant.

(1) Strength of the Government’s Case: The government’s case centered on
the victim’s testimony. She testified consistently with her previous out-of-court
statements. Certainly, the government may prove a case beyond a reasonable doubt
on a victim’s testimony alone. But, in this case—considering the military judge’s
other evidentiary rulings’—where the issue is whether the military judge’s error to
exclude expert testimony of the effect alcohol may have had on the victim’s mental
alertness and acuity during the assault, we cannot conclude government’s case was
strong enough that the error had no substantial influence on the findings.

(2) Strength of the Defense’s Case: Defense evidence that the parties played
risqué drinking games, that the victim may have expressed envy of favorable

° Because we find prejudice under the nonconstitutional material prejudice standard,
it is not necessary to determine if the military judge’s exclusion of expert testimony
in this case presented a constitutional question.

7 Appellee references, in its brief, trial testimony that appellant ejaculated on the
victim’s buttocks and corresponding DNA evidence corroborated her account.
Appellee correctly notes the military judge directed the panel “to disregard any and
all references to whether the [appellant] ejaculated and whether there is any DNA
evidence.” (emphasis added). Because the trier of fact was precluded from
considering this evidence, we will not either. United States v. Roderick,
62 M.J.
425, 431
(C.A.A.F. 2006) (“[T]he Courts of Criminal Appeals are precluded from
considering evidence excluded at trial in performing their appellate review function
under Article 66(c).” (internal quotations and citation omitted)). Although
redesignated to Article 66(d), this limitation on our review authority remains.

We note military judges have wide discretion to “exercise reasonable control over
the proceedings,” and “[r]ule on . . . interlocutory questions and . . . questions of law
raised during the court-martial... .” R.C.M. 801(a)(3)-(4). However, military
judges should be careful not to inappropriately impede or shape the case the litigants
have developed—based on their fulsome knowledge of the entire case file—for the
trier of fact.
CHANCELLOR — ARMY 20230028

character traits of the accused, and that she and her husband may have had a
tumultuous marriage was not overly compelling. However, appellant testified and
stated the victim consented to sex and matched the victim’s testimony in several
respects.

(3) Materiality of the Evidence in Question:

“*When assessing the materiality and quality of the evidence, [a reviewing
court] considers the particular factual circumstances of each case.’” United States v.
Green-Watson,
85 M.J. 340
, 348 (C.A.A.F. 2025) (quoting United States v.
Washington,
80 M.J. 106
, 111 (C.A.A.F. 2020)). When considering whether
evidence is material, a court assesses how the erroneously excluded evidence “may
have affected the court-martial.” Cf. Washington, 80 M.J. at 111 (discussing
materiality of evidence admitted in error). Put simply, we cannot conclude the
military judge’s error did not affect the court-martial.

After accounting for excluded evidence and instructions to disregard certain
facts from the victim’s testimony, the panel was left with evidence she drank a
considerable volume of alcohol. She drank enough to—albeit self-professed—
become drunk. Further, the panel heard testimony she struggled to remain awake.
The panel heard the victim “passed out hard” when appellant and the BE went
to bed; a fact appellee concedes. The panel heard her eyes were closed as appellant
assaulted her, she did not say anything, and she did not resist.’ Additionally, the
panel heard the victim describe her condition as “groggy,” “dozing in and out,” and
“tipsy” as appellant penetrated her. What the panel did not have was expert
testimony to put her intoxication into context.

As noted above, on the testimony of the victim alone, the government may
obtain and sustain a conviction beyond a reasonable doubt. However, in this case,
the government may not favorably press the victim’s credibility on elements of her
testimony helpful to its case, while, on appeal, tacitly discount her testimony—i.e.,
that she was intoxicated and “dozing in and out,”—-when it is unhelpful to its

8 This is in no way meant to imply a victim is required to manifest her lack of
consent. See UCMJ art. 120(g) (“Lack of verbal or physical resistance does not
constitute consent.”). The victim’s lack of verbal or physical resistance combined
with her self-professed drunkenness put her capability to consent in question. See
United States vy. Mendoza,
85 M.J. 213
, 220 (C.A.A.F. 2023) (observing because
Article 120(b)(2)(A) and (b)(3)(A) establish separate theories of liability, Article
120(b)(2)(A) criminalizes sex acts upon victims who are capable of consenting but
do not). Defense counsel specifically informed the military judge MAJ ould
testify about the victim’s ability to consent. The government’s assertion in its brief
that “the issue of intoxication lacked any direct connection to the charged offense:
sexual assault ‘without consent,’” is not entirely accurate.
CHANCELLOR - ARMY 20230028

argument. Consequently, we are left to consider she credibly testified she drank
enough alcohol to become drunk, she drank enough to remain “tipsy” hours later,
and she was floating in an out of consciousness as appellant penetrated her.

Here, the strength of the government’s case was the victim’s testimony.
Because of this, MAJ s proffered testimony is particularly important. His
assessment of how alcohol may have affected the victim’s memory and perception
that evening would have been useful to the panel. Further, he could have expounded
on the victim’s testimony that she was “dozing in and out” while appellant
penetrated her: a poigt defense counsel specifically raised with the military judge.
Accordingly, MAJ HM’s testimony would be material to the defense to attack the
victim’s credibility.

In weighing the materiality of the evidence, a factor to consider is “the extent
to which the government referred to the evidence in argument.” /d. (citing United
States v. Brooks,
26 M.J. 28, 29
(C.M.A. 1988)). Here, the government injected the
importance that alcohol had throughout the trial. While questioning appellant, trial
counsel pointed out appellant knew the victim was “drunk.” He further framed
appellant’s actions as “[taking] advantage of a friend who was sleeping on [his]
couch, drunk and half asleep.” Government counsel further referred to the victim as
“half passed out and intoxicated” on the couch, during the assault. Government
counsel noted multiple times in his argument that the victim had “passed out” on the
couch and she was “half asleep on the couch” when appellant penetrated her. He
highlighted she was intoxicated but the appellant was not. Consequently, MAJ J
as an expert in forensic psychology and the effects of alcohol, would have been
useful to the panel in weighing the victim’s memory and perception of the event
given repeated references that she was otherwise “passed out” or sleeping.

Certainly, the record does not elaborate on the volume of the alcoholic
beverages the victim drank. It does not disclose their relative potency. The record
does little to describe her body mass, other than she was five feet one inch, but the
panel, military judge, and litigants observed her in court. While these omissions
may have affected MAJ s opinion, they do not establish his testimony would not
be useful.”

While compelling, in isolation, the victim’s outcry injected a question of her
perception and consciousness during the assault. When SPC GC came downstairs
with appellant, the victim asked, “[d]id you touch me?” The panel also heard SPC
GC testify the victim told her in the car “I think this has happened,” but caveated,
“but I am not quite sure.” Majors testimony could have assisted the fact finder

° And at the risk of belaboring a point, because this issue was discussed in a closed
R.C.M. 802 conference, we do not know what MAJ BB reviewed in addition to the
testimony of the witnesses and how it would have influenced his opinion.

10
CHANCELLOR — ARMY 20230028

in exploring the significance alcohol played on the victim’s ability to consent, her
ability to accurately perceive her surroundings, her memory, and her credibility.

(4) The Quality of the Evidence in Question:

Assessing the quality of the evidence is difficult. An expert in forensic
psychiatry, at a minimum, could have educated the panel on the effects of alcohol,
the duration of any effect, etc. A full analysis of the potential quality of MAJ fs
testimony is impossible because the military judge addressed this issue in a R.C.M.
802 conference and failed to provide detailed findings of fact or conclusions of law.

The panel heard ample evidence the victim was intoxicated on the evening of
8 July 2021 to the point she “passed out.” It heard those effects extended into the
early morning of 9 July 2021. It heard testimony from the victim herself that
alcohol influenced her physical and mental condition. What it did not hear, and
what the defense tried to introduce, was expert testimony to explain or even
challenge the victim’s account. Accordingly, we conclude appellant suffered
prejudice, and he is entitled to relief.

CONCLUSION

The findings of guilty and the sentence are SET ASIDE. A rehearing is
authorized.

Senior Judge FLEMING and Judge COOPER concur.

FOR THE COURT:

JAMES W. HERRING, JR.
Clerk of Court

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