United States v. Staff Sergeant RICHARD T. RIDDLE

UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before COOPER, WILLIAMS, and JUETTEN

Appellate Military Judges

UNITED STATES, Appellee v.

Staff Sergeant RICHARD T. RIDDLE United States Army, Appellant ARMY 20230520

Headquarters, 8th Theater Sustainment Command Michael E. Korte and Robert E. Murdough, Military Judges Lieutenant Colonel Christofer T. Franca, Staff Judge Advocate

For Appellant: Captain Jessica A. Adler, JA (argued); Colonel Frank E. Kostik, Jr., JA; Lieutenant Colonel Kyle C. Sprague, JA; Jonathan F. Potter, Esquire; Captain Jessica A. Adler, JA (on brief and reply brief).

For Appellee: Captain Melissa D. Zigrang, JA (argued); Colonel Richard E. Gorini, JA; Major Vy T. Nguyen, JA; Major Stephen Harmel, JA; Captain Clare Murphy, JA (on brief).

27 August 2026 MEMORANDUM OPINION

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.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

The military judge afforded appellant multiple opportunities to object to the proposed findings instructions and solicited appellant's input on their content. Appellant neither objected nor proposed alternate language. Accordingly, appellant waived any error as to the instructions. Separately, appellant's anger does not permit him to utter vulgarities. Consequently, we affirm the findings and sentence of appellant's court-martial. 1

A general court-martial composed of officer and enlisted members convicted appellant,contrary to his pleas,of one specification of kidnapping,one specification of assault with intent to commit sexual assault,and one specification of indecent language,in violation of Articles 125,128,and 134,Uniform Code of Military Justice,10 U.S.C.§§ 925,928,934 [UCMJ]. During an earlier session of the court­ martial,appellant was convicted,consistent with his pleas,of two specifications of absence without leave,four specifications of disrespect toward a superior commissioned officer,two specifications of willfully disobeying a superior officer, nine specifications of insubordinate conduct,and one specification of assault upon a person in the execution of law enforcement duties,in violation of Articles 86,89, 90,91,and 128,UCMJ. The military judge sentenced appellant to a dishonorable discharge and to be confined for 116 months and 25 days.

BACKGROUND

The victim fell asleep,on her stomach,in appellant's bed. At some point,the victim awoke and noticed the blanket she had been using no longer covered her legs or buttocks; it was pulled up to her waist. Appellant had positioned himself so his knees "secur[ed] [the] blanket down over [her] waist " and pinned the victim to the bed. While in this position,appellant anally penetrated the victim,causing her pain. Per the victim's testimony,she woke "up to [a] sudden realization that [appellant] was having sex with [her]." After she awoke,appellant held her down while having sex with her. The victim said, "Ouch," " Stop," and "You're hurting me," but appellant did not stop. Appellant ceased his assault after he ejaculated. Consequently, the government preferred and referred the Specification of Charge I that alleged appellant sexually assaulted a sleeping person.

The military judge discussed the findings instructions during an Article 39(a) hearing. The military judge asked counsel if there were any lesser included offenses (LIOs) for the charged offenses. Trial counsel said "yes." Trial counsel noted assault with intent to commit sexual assault was appropriate for the charged sexual RIDDLE - AR MY 20230520 assault offense. Initially,defense counsel hesitated and stated, "I'm not sure I [agree], Your Honor." The military judge confirmed with trial counsel that assault with intent to commit sexual assault was presidentially prescribed as an LIO for sexual assault. The military judge then directed trial defense counsel to Appendix 12A of the Manual for Courts-Martial, United States (2019 ed.) [MCM]. After defense counsel reviewed the appendix,the military judge asked again, "Do you still disagree?" Defense counsel responded, "I understand, Your Honor." The military judge followed up and asked, "Do you object to the instruction?" Defense counsel answered, "I do not,Your Honor."

The military judge requested contributions from both parties on the content and form of the instructions throughout the Article 39(a) hearing. Specifically,he sought input about the language of the LIO instruction. The military judge observed the draft instruction had a parenthetical that required a description of the "manner of the assault and battery alleged," and asked trial counsel to describe their theory of liability for the LIO. Trial counsel stated,"sexual assault by holding ...[the victim] down and penetrating her anus with his penis." The military judge asked defense counsel, "do you concur in that parenthetical or do you have different language?" Defense counsel responded "Your Honor,I do not have different language.I can't even conceive of what other - I mean,I believe that that's for lack of a better word,the only thing that's been received." After discussing the mens rea required for the LIO,the military judge asked the parties if there was "[a]nything else on the lesser-included of assault with intent?" Defense counsel responded, "No, Your Honor." Prior to closing the Article 39(a) hearing,the military judge asked, "Are there any other instructions that either side would request?" Both trial counsel and trial defense counsel said, "no."

The military judge stated he would type the instructions and send them to the parties to review. He "strongly recommend[ed] both sides ...print [the instructions] and read [them] " because "[t]he act of passively scrolling on a screen " causes one to miss errors. The military judge provided the instructions and permitted counsel to review them overnight. Both trial counsel and defense counsel submitted corrections that the military judge incorporated into the findings instructions. The following morning,the military judge held a Rule for Courts­ Martial [R.C.M.] 802 conference with counsel,during which they "went page by page through the findings instructions," resulting in the incorporation of additional "minor syntactical changes." Defense counsel proposed a substantive change to the indecent language specification, and the military judge accommodated that request. Finally, on the record,the military judge confirmed with trial counsel and defense counsel that they had reviewed the findings instructions and that they reflected all changes discussed. He asked whether either side "ha[d] any objections other than what we've already covered?"2 Defense counsel replied, "No, Your Honor." The panel found appellant guilty of the LIO.

After findings, the military judge conducted an Article 39(a) hearing with the parties to discuss the maximum punishment. During the hearing, defense counsel noted they did not think appellant was on notice of the LIO of assault with intent to commit sexual assault. The military judge responded, "Do you believe that we have a notice issue, because when I asked about the lesser included instruction, I heard no objection." Defense counsel responded, "No, Your Honor, my apologies. I retract that."

Despite his retraction, appellant alleged legal error in the instructions during the post-trial processing of his court-martial. In his R.C.M. 1106 submission, appellant argued the panel should not have been instructed on the LIO of assault with intent to commit sexual assault. Defense counsel also filed a Post-Trial Motion for Appropriate Relief with the military judge and requested the military judge enter a finding of not guilty of Charge I and its specification. The convening authority could not grant relief for the alleged legal errors, and the military judge denied the defense motion.

LAW AND DISCUSSION

A. Panel Instruction on Lesser Included Offense "Whether an appellant has waived an issue is a legal question that this Court reviews de novo." United States v. Davis, 79 M.J. 329, 331 (C.A.A.F. 2020) (citing United States v. Haynes, 79 M.J. 17, 19 (C.A.A.F. 2019)), cert. denied, 592 U.S. 950 (2020). When "counsel affirmatively declines to object and offers no additional instructions, counsel expressly and unequivocally acquiesces to the military judge's RID DLE - ARMY 20230520 instructions ...his actions ...constitute wavier." United States v. Rich, 79 M.J. 472, 476 (C.A.A.F. 2020) (cleaned up) (quoting Davis, 79 M.J.at 332). "[W]hile we review forfeited issues for plain error,we cannot review waived issues at all because a valid waiver leaves no error for us to correct on appeal." Id. at 476 (alteration in original) (quoting Davis, 79 M.J.at 332).

Appellant waived his right to contest the now-challenged LIO instructions. Although defense counsel initially expressed skepticism regarding the applicability of the LIO,ultimately defense counsel declined to object to the instruction. Furthermore,defense counsel-when given an opportunity to shape the language of the instruction-stated directly,"Your Honor,Ido not have different language." Finally,when asked whether there was anything else regarding the LIO,defense counsel responded,"No,Your Honor." Defense counsel "intentionally relinquishe[d] a known right by taking affirmative action," United States v. Ford, __ M.J.__,2026 C A A F LEXIS 570,at *7 (C.A.A.F.1 Jul. 2026) (citing United States v. Malone, 86 M.J.297,302 (C.A.A.F. 2026)) and has left "no error for us to correct on appeal." Id. at *8 (quoting Davis, 79 M.J.at 331). Accordingly,appellant waived any objection to the panel instruction regarding the LIO. Davis, 79 M.J. 329; see also United States v. Swift, 76 M.J.210,217 (C.A.A.F. 2017) ("[ A]s a general proposition of law, 'no objection' constitutes an affirmative waiver of the right or admission at issue.").3

Appellant attempts to circumvent his deliberate waiver at trial and encourages us to review the LIO for plain error because "[defense counsel's] actions clearly demonstrate[d] the lack of any intentional relinquishment of a known right." Tellingly, appellant focuses attention on his post-trial litigation rather than any objection lodged during trial. Appellant contends his challenge of the instruction in his R.C:M. 1106 submission to the convening authority and his Post-Trial Motion for Appropriate Relief to the military judge evidenced the lack of an intentional relinquishment of a known right. Accordingly, he avers his subsequent post-trial objections resulted in forfeiture of the matter rather than waiver. We disagree.4 To preserve error, appellant was required to lodge a timely objection and his post-trial arguments were decidedly untimely. R.C.M.920(£) (" Failure to object to an instruction ... before the members close to deliberate forfeits the objection.") (emphasis added)); see also Military Rule of Evidence 103(a)(l)( A) (a ruling which admits or excludes evidence is preserved if the non-moving party "timely objects or moves to strike ") (emphasis added)). Appellant was afforded abundant and sufficient opportunities to voice objection to the LIO and he did not. Instead, he directly stated he had no objection. Consequently, he waived objection to the LIO.5

Finally, appellant invokes our superior court's holding in United States v. Oliver, 76 M.J. 271 (C.A.A.F. 2017), to argue the objection was merely forfeited rather than waived. Although the Court of Appeals for the Armed Forces [CAAF] in Oliver did find the objection forfeited, despite "defense counsel affirmatively assert[ing] he had no objection," CAAF's holding was premised on the "seemingly unsettled nature of the law at the time of [a]ppellant's court-martial and its clear resolution in [appellant's] favor by" a subsequent CAAF decision. Id. at 273, 274. Even assuming arguendo that the law was "seemingly unsettled" at the time of appellant's court-martial, appellant's argument does not prevail. As CAAF recently stated, the court "expect[s] counsel to object when the law is unsettled and a certain interpretation is favorable to their client." Ford, __ M.J. at __, 2026 CAAF LEXIS 570, at *9 (quoting Oliver, 76 M.J. at 276 (Stucky, C.J., concurring in result)). As such, "trial defense counsel's affirmative assertion at the court-martial . . . constitute[d] waiver of this issue." Oliver, 76 M.J. at 273 (citation omitted).

B. Indecent Language 1. Additional Facts

Appellant appeared before a Disciplinary Action Board [D&A Board] at the Pearl Harbor Naval Brig. The board comprised three servicemembers. One of the board members attempted to explain the board process to appellant; however, appellant was unruly. Appellant lost military bearing and began to laugh as the D&A Board member attempted to read the procedures and disciplinary report.

Due to appellant's behavior, a board member decided to end the review board and directed appellant's escorts to remove him. As appellant left, he turned around, faced the D&A Board members, said, "Y'all are a bunch of f******," and spit on the ground. A board member testified the word appellant uttered to be a derogatory word to describe homosexuals and that it was not a term commonly used in the Naval Brig.

At trial, the panel was appropriately instructed on the elements of indecent language. Specifically, the panel was informed indecent language included language that "is grossly offensive to modesty, decency, or propriety, or shocks the moral sense because of its vulgar, filthy or disgusting nature." The panel was further advised the "language must violate community standards," and that the community standard was that "applicable to the military as a whole and not the accused's unit."

2. Law and Analysis

We review legal sufficiency de novo. United States v. Robinson, 77 M.J. 294, 297 (C.A.A.F. 2018) (citation 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." Id. at 297-98 (quoting United States v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017)).

Language is indecent if it is "grossly offensive to modesty, decency, or propriety, or shocks the moral sense, because of its vulgar, filthy, or disgusting nature, or its tendency to incite lustful thought. Language is indecent if it tends reasonably to corrupt morals or incite libidinous thoughts. The language must violate community standards." MCM, pt. IV, ,r 105(c). Use of the disjunctive "or" following "vulgar, filthy, or disgusting nature" in the definition provided by the Manual for Courts-Martial creates "two different definitions to measure speech that may be a crime." United States v. Negron, 60 M.J. 136, 144 (C.A.A.F. 2004). Thus, language need not be sexual or have a "tendency to incite lustful thought" to be indecent. "the indecency of a word . . . must be evaluated in the context in which it is made." United States v. Green, 68 M.J. 266, 270 (C.A.A.F. 2010) (citation omitted).

Appellant asks us to find his conviction legally insufficient because of the context in which it was made. Leveraging United States v. Brinson, 49 M.J. 360 (C.A.A.F. 1998), appellant maintains that because he expressed his language in anger, the words used ceased to be indecent. We disagree. As an initial matter, it is uncertain whether Brinson's ostensible carve out for rage-based vulgarities remains viable. Compare Brinson, 49 M.J. at 364 (observing language expressing rage was not calculated or intended to express sexual desire or moral dissolution and thus not indecent), with Negron, 60 M.J. at 144 (noting Brinson may have created confusion on the definition of "indecent" and therefore clarifying the definition criminalizes two definitions of "indecent"- one sexual and one not); see also United States v. Avery, 79 M.J. 363, 365 (C.A.A.F. 2020) (holding Article 120b, Uniform Code of Military Justice, 10 U.S.C. § 934 (2012), did not preempt indecent language communicated to a child charged pursuant to Article 134, UCMJ, when the indecent language was not sexual in nature).

Here, appellant communicated grossly offensive, vulgar language to servicemembers performing their military duties. He uttered a word that both was demeaning to the D&A Board members while simultaneously disrespecting an entire cross-section of society. A reasonable factfinder certainly could conclude such language was "grossly offensive to modesty, decency, or propriety, or shock[ing to] the moral sense." Simply put, appellant's anger did not negate the vulgar, filthy, or disgusting nature of his epithet.

The panel applied the facts presented during the court-martial to the appropriate instruction and found appellant's use of the word f'I'***** to be indecent. Viewing the evidence in the light most favorable to the prosecution, a rational factfinder certainly could find the term to be grossly offensive because of its