UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

_________________________

No. 201600025

_________________________

UNITED STATES OF AMERICA

Appellee

v.

DAVID B. OLSON

Seaman Apprentice (E-2), U.S. Navy

Appellant

_________________________

Appeal from the United States Navy-Marine Corps Trial Judiciary 

Military Judge: Captain Robert J. Crow, JAGC, USN.

Convening Authority: Commander, Navy Region Southeast, Naval 

Air Station, Jacksonville, FL.

Staff Judge Advocate’s Recommendation: Commander Nell O. Evans, 

JAGC, USN.

For Appellant: Philip D. Cave, Esq.; Commander Chris D. Tucker, 

JAGC, USN; Lieutenant Jacqueline M. Leonard, JAGC, USN.

For Appellee: Lieutenant James M. Belforti, JAGC, USN; 

Lieutenant Jetti L. Gibson, JAGC, USN.

_________________________

Decided 23 February 2017

_________________________

Before CAMPBELL, FULTON, and HUTCHISON, Appellate Military 

Judges

_________________________

This opinion does not serve as binding precedent, but may be cited 

as persuasive authority under NMCCA Rule of Practice and 

Procedure 18.2.

_________________________

HUTCHISON, Judge:

At an uncontested general court-martial, a military judge convicted the 

appellant, pursuant to his pleas, of two specifications of committing a lewd 

act upon a child and one specification of unlawful entry in violation of 
United States v. Olson, No. 201600025

2

Articles 120b and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. 

§§ 920b and 934. The convening authority (CA) approved the adjudged 

sentence of nine years’ confinement, reduction to pay grade E-1, total 

forfeiture of pay and allowances, and a dishonorable discharge, but 

suspended all confinement in excess of three years pursuant to a pretrial 

agreement (PTA).

In his sole assignment of error, the appellant alleges that the military 

judge abused his discretion by accepting the appellant’s guilty pleas without 

first inquiring into the appellant’s mental capacity and responsibility or 

discussing the affirmative defense of lack of mental responsibility.1 We 

disagree and conclude that the findings and sentence are correct in law and 

fact and that no error materially prejudicial to the substantial rights of the 

appellant occurred. Arts. 59(a) and 66(c), UCMJ.

I. BACKGROUND

On 1 March 2014, after a night of drinking, as the appellant walked to his 

ship, USS VICKSBURG (CG 69), he took a detour through the family housing 

area onboard Naval Station Mayport. He tried to enter several houses, 

hoping to “get free alcohol and meet people[,]”

2 until he came upon an 

unlocked door at the home Petty Officer D.R. shared with his six-year-old 

daughter, L.R. Petty Officer D.R. was not home but had left L.R. in the care 

of her grandfather. The appellant entered the home, carefully using his shirt 

sleeve to open the door so as not to “leave any fingerprints[,]”

3 made his way 

to L.R.’s bedroom, and fell asleep on her floor. Upon waking, he approached 

L.R. and touched her buttocks and thighs while she lay in her bed. He 

subsequently removed his pants and underwear, exposing his genitalia. After 

L.R. told him to leave, he hid in her closet for a short time, then fled from the 

house before L.R.’s grandfather came to check on her. 

In April 2014, the appellant was first examined, pursuant to RULE FOR 

COURTS-MARTIAL (R.C.M.) 706, MANUAL FOR COURTS-MARTIAL, UNITED 

 

1 “THE MILITARY JUDGE ABUSED HIS DISCRETION BY FAILING TO 

INQUIRE INTO APPELLANT’S MENTAL CAPACITY AND RESPONSIBILITY, 

DISCUSS THE POSSIBILITY OF THE AFFIRMATIVE DEFENSE OF LACK OF 

MENTAL RESPONSIBILITY, AND SATISFY HIMSELF THAT APPELLANT’S 

TRIAL COUNSEL HAD FULLY EVALUATED THE POSSIBILITY OF THE 

AFFIRMATIVE DEFENSE, PRIOR TO ACCEPTING THE APPELLANT’S GUILTY 

PLEAS.” Appellant’s Brief and Assignment of Error of 1 Nov 2016 at 1.

2 Record at 68.

3 Id. at 69.
United States v. Olson, No. 201600025

3

STATES (2012 ed.), by a neuropsychologist at Naval Hospital Jacksonville.4 

The R.C.M. 706 board concluded the appellant “did not suffer from a mental 

disease or defect which would affect his ability to appreciate the nature, 

quality or wrongfulness or criminality of his conduct or affect his inability to 

conform to the requirements of the law[,]” and that he was “able to 

understand the nature of the proceedings against him and to conduct and 

cooperate intelligently in the defense.”5

At a second R.C.M. 706 board, conducted in December 2014, a psychiatrist 

again determined the appellant was able to appreciate “the nature and 

quality and wrongfulness of his conduct” at the time of the alleged 

misconduct.

6 However, this psychiatrist also determined that the appellant

did “not have sufficient mental capacity to conduct or cooperate intelligently 

in his defense.”7 Following an R.C.M. 909(e) hearing, the appellant was 

committed to the custody of the Attorney General.

In July 2015, the Warden of the Federal Medical Center in Butner, North 

Carolina issued a “Certificate of Restoration of Competency to Stand Trial,” 

certifying that the appellant was “able to understand the nature and 

consequences of the proceedings against him and to assist properly in his own 

defense.”8

At trial, the appellant entered into a stipulation of fact agreeing that he 

“did not at any time suffer from any mental defect or disease that caused him 

to commit the offenses to which he . . . plead[ed] guilty.”9 Before admitting 

the stipulation of fact into evidence, the military judge asked the appellant 

whether he read it, discussed it with his attorney, understood it, and believed 

everything in it was true and accurate. During presentencing, the appellant’s 

father testified regarding treatment the appellant received at the Federal 

Medical Center, noting that the appellant had “re-found himself[,]” gotten 

“his mind back[,] and everything is in order.”10 After that testimony, the 

 

4 Appellate Exhibit (AE) VI. The report states that the examination occurred on 3 

April 2013. However, given the fact that the appellant’s misconduct did not occur 

until March 2014, it appears the date is simply a scrivener’s error.

5 Id.

6 Defense Exhibit (DE) A at 2.

7 Id.

8 AE VIII at 2.

9 Prosecution Exhibit 1 at 1.

10 Record at 127.
United States v. Olson, No. 201600025

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military judge addressed the appellant’s mental health with both government 

counsel and the appellant’s civilian defense counsel:

MJ: Okay. And, for both counsel, I know the [appellant’s] 

father just indicated that, you know, [the appellant] has 

mental illness, but both sides are in agreement that’s all

been addressed, and that [the appellant] is, you know, 

one, competent at the time of the—and I know it’s in the 

record, at the time of the incident, as well as competent 

to stand trial here today. Both sides concur with that?

TC: Yes, your honor. Mental health issues versus . . . .

MJ: Correct.

TC: . . . . [M]ental disease or defect, according to the law.

CDC: Exactly. The two can co-exist.11

II. DISCUSSION

We review a military judge’s decision to accept or reject a guilty plea for 

an abuse of discretion. United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 

1996). A decision to accept a guilty plea will be set aside only where the 

record of trial shows a substantial basis in law or fact for questioning the 

plea. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). If evidence 

inconsistent with the plea is presented at any time during the proceeding, 

“the military judge must either resolve the apparent inconsistency or reject 

the plea.” United States v. Garcia, 44 M.J. 496, 498 (C.A.A.F. 1996) (citations 

omitted). “The existence of an apparent and complete defense is necessarily 

inconsistent” with a guilty plea. United States v. Shaw, 64 M.J. 460, 462 

(C.A.A.F. 2007). The “mere possibility” of a conflict between the plea and the 

appellant’s statements or other evidence of record is not a sufficient basis to 

overturn the trial results. Id. (quoting United States v. Prater, 32 M.J. 433, 

436 (C.M.A. 1991)).

The appellant contends that the military judge failed to conduct an 

adequate providence inquiry to resolve a possible affirmative defense based 

on a lack of mental responsibility. Further, the appellant argues that there 

was “sufficient evidence” about the appellant’s mental health “that should 

have alerted the military judge to make a deeper inquiry into [the 

appellant’s] mental state at the time of the offenses charged.”12 We disagree 

that it was an abuse of discretion to not do so.

 

11 Id. at 129.

12 Appellant’s Brief at 14.
United States v. Olson, No. 201600025

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We first note that “the military judge may reasonably rely on both a 

presumption that the accused is sane and the long-standing principle that 

counsel is presumed to be competent.” Shaw, 64 M.J. at 463 (citing United

States v. Cronic, 466 U.S. 648, 658 (1984); United States v. Scott, 24 M.J. 186, 

188 (C.M.A. 1987)). Therefore, when he conducted his inquiry pursuant to 

United States v. Care, 40 C.M.R. 247 (C.M.A. 1969), the military judge could 

“properly presume . . . that counsel ha[d] conducted a reasonable 

investigation into the existence of the defense” of “lack of mental 

responsibility.” Shaw, 64 M.J. at 463. Moreover, the military judge was

aware of the results of both the April 2014 and December 2014 R.C.M. 706 

boards. Both examinations determined that, at the time of the misconduct, 

the appellant was not suffering from a mental disease or defect and could 

appreciate the nature, quality, and wrongfulness of his actions.

In United States v. Miranda, No. 201100084, 2011 CCA LEXIS 502,

unpublished op. (N-M. Ct. Crim. App. 6 Sep 2011) (per curiam), aff’d, 71 M.J. 

102 (C.A.A.F. 2012), we concluded that a military judge did not abuse his 

discretion in accepting a guilty plea despite references to post-traumatic 

stress disorder, adjustment disorder, and bipolar disorder in the appellant’s 

unsworn statement. Although the military judge in Miranda did not 

expressly inquire into the “appellant’s history of mental illness or its relation 

to the appellant’s offenses,” the military judge was aware of the existence and 

results of an R.C.M. 706 evaluation that concluded the appellant was 

mentally responsible for his conduct, id. at *2-4, and thus “was entitled to 

conclude that the appellant was mentally responsible and had discussed any 

mental responsibility defenses with his counsel.” Id. at *6. The case at bar is 

strikingly similar.

Here, there was simply no conflicting or inconsistent medical evidence 

which the military judge was required to resolve. There was also no 

testimony or evidence presented during the Care inquiry or in presentencing 

that called into question the appellant’s mental responsibility at the time of 

the charged offenses, or that contradicted the conclusions of the various 

mental health professionals who examined the appellant. Rather, the 

appellant testified consistently with what one would expect from someone 

who could appreciate “the nature and quality, or the wrongfulness of his 

conduct”—that he consciously unlawfully entered L.R.’s home, taking care 

not to leave fingerprints; inappropriately touched L.R. and exposed himself to 

her in order to satisfy his sexual desires; and then fled before being caught.13

During a colloquy with the military judge regarding his level of intoxication 

as it related to his ability to form the specific intent to gratify his sexual 

 

13 DE A at 2.
United States v. Olson, No. 201600025

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desire, the appellant acknowledged that he was “aware of what [he was] 

doing at the time that [he] did it[.]”14

The uncontroverted conclusion of two separate R.C.M 706 boards that the 

appellant was mentally responsible at the time of his charged misconduct,

along with the absence of any evidence contradicting those findings, 

convinces us that the military judge did not abuse his discretion and that the 

appellant has failed to establish a substantial basis in law or fact to question 

his pleas. Put simply, “[t]he military judge is not required ‘to embark on a 

mindless fishing expedition to ferret out or negate all possible defenses or 

potential inconsistencies.’” Miranda, 2011 CCA LEXIS 502 at *8 (quoting 

United States v. Jackson, 23 M.J. 650, 652 (N.M.C.M.R. 1986)).

Finally, the appellant notes that the military judge also did not inquire 

into the appellant’s “capacity to understand the nature of the proceedings 

against him or to conduct or cooperate intelligently in his own defense[.]”

15

However, he provides no argument in support of the contention that there 

was any need for the military judge to do so. Indeed, the whole of the 

appellant’s brief focuses on the appellant’s mental competency at the time of 

the charged misconduct and the potential for an affirmative defense. 

Regardless, we find any suggestion that the military judge abused his 

discretion by accepting the appellant’s pleas without first ascertaining the 

appellant’s mental competency to stand trial, to be meritless. Armed with the 

affidavit from the Federal Medical Center’s Warden denoting the restoration 

of appellant’s competency, as well as the assurances of both the appellant16

and trial defense counsel that the appellant was “competent to stand trial 

here today,”17 the military judge had no reason to believe that any mental 

condition precluded a provident guilty plea. Nor did the appellant's conduct 

during the Care inquiry or in presentencing, raise concerns that might have 

suggested to the military judge that the appellant lacked the capacity to 

plead or understand the terms of his PTA. 

 

14 Record at 79.

15 Appellant’s Brief at 3.

16 Record at 65.

“MJ: Okay. And do you agree you’re not on any sort of medication right now?

 ACC: I’m on Tylenol, Your Honor.

MJ: Tylenol? But are you completely coherent and able to appreciate 

everything that’s going on in court here today?

 ACC: Yes, Your Honor.”

17 Id. at 129.
United States v. Olson, No. 201600025

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 III. CONCLUSION

The findings and the sentence as approved by the CA are affirmed.

Senior Judge CAMPBELL and Judge FULTON concur.

For the Court

R.H. TROIDL

Clerk of Court