UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before

KRIMBILL, BROOKHART, and RODRIGUEZ

Appellate Military Judges

UNITED STATES, Appellee

v.

Sergeant DANNY E. STANLEY

United States Army, Appellant

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Headquarters, U.S. Army Fires Center of Excellence and Fort Sill

Robert L. Shuck and Jacob D. Bashore, Military Judges

Lieutenant Colonel Philip M. Staten, Acting Staff Judge Advocate

For Appellant: Captain Brianna C. Tuohy, JA; William E. Cassara, Esquire (on brief 

and reply brief).

For Appellant: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H. 

Williams, JA; Major Jonathan S. Reiner, JA; Captain Anthony A. Contrada, JA (on 

brief).

7 August 2020

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MEMORANDUM OPINION

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

RODRIGUEZ, Judge:

Appellant, a drill sergeant, was tried by a general court-martial at Fort Sill, 

Oklahoma. Consistent with his pleas, a military judge convicted appellant of five 

specifications of violating a lawful general regulation, one specification of indecent 

conduct, and one specification of adultery, in violation of Articles 92 and 134, 

Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 934 [UCMJ]. Contrary to 

his pleas, a panel with enlisted representation convicted appellant of two 

specifications of violating a lawful general regulation, two specifications of 

maltreatment, and one specification of aggravated sexual contact, in violation of
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Articles 92, 93, and 120, UCMJ.

1

 The court-martial sentenced appellant to a badconduct discharge, confinement of three years, forfeiture of all pay and allowances, 

and reduction to the grade of E-1. The convening authority approved the sentence as 

adjudged.

Appellant’s case is now pending review before this court pursuant to Article 

66, UCMJ. Appellant claims the military judge abused his discretion in allowing the 

panel to hear Private (PV2) CL’s unsworn victim impact statement pursuant to Rule 

for Courts-Martial [R.C.M.] 1001A.

2

 As discussed below, we find the military judge 

did not abuse his discretion in admitting the victim impact statement at issue and, 

accordingly, grant no relief.

3

 

1 Prior to appellant’s entry of pleas, the military judge dismissed seven 

specifications of Charge I (Article 120), and two specifications of Charge III 

(Article 134). The military judge also dismissed one of appellant’s convictions for 

violating a lawful general regulation (Specification 7 of Charge II), subject to

appellant’s conviction for aggravated sexual contact (renumbered Specification 4 of 

Charge I) surviving appellate review, as both specifications are based on the same 

underlying facts. Appellant was acquitted of three other Charge I specifications. 

2 Appellant also claims the evidence is legally and factually insufficient to support 

several of the specifications to which appellant pleaded not guilty. We disagree and 

find appellant’s convictions both legally and factually sufficient.

3 Further, we have given full and fair consideration to the matters personally raised 

by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and 

find them to be without merit. In his personally submitted matters, appellant alleges 

his trial defense counsel was “unprepared during” a witness’s cross-examination, 

and did not “adequately rebut” evidence used by government counsel during closing 

arguments. Assuming appellant is actually claiming his counsel were ineffective at 

trial, he must satisfy a two-part test to establish “both (1) that his counsel’s 

performance was deficient, and (2) that this deficiency resulted in prejudice.” 

United States v. Green, 68 M.J. 360, 361–62 (C.A.A.F. 2010) (citing Strickland v. 

Washington, 466 U.S. 668, 687 (1984)). As a reviewing court, we “must indulge a 

strong presumption that counsel’s conduct falls within the wide range of reasonable 

professional assistance.” United States v. Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007) 

(quoting Strickland, 466 U.S. at 689). We are also “constrained by the principle that 

strategic choices made by trial defense counsel are ‘virtually unchallengeable’ after 

thorough investigation of the law and the facts relevant to the plausible options.” 

United States v. Akbar, 74 M.J. 364, 371 (C.A.A.F. 2015) (quoting Strickland, 466 

U.S. at 690–91). After reviewing the entire record of trial, we find appellant has 

failed to establish his trial defense counsel’s conduct was deficient, much less 

ineffective and prejudicial, in pursuing a trial strategy that was plausible, consistent 

with the evidence at issue, and which fit within the wide range of reasonable 

professional assistance.
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BACKGROUND

Sometime after midnight on 1 December 2016, the evening prior to her Basic 

Training graduation, nineteen-year-old PV2 CL was getting ready to sleep after 

having performed her last fireguard duty obligation. Around that time, appellant, a 

drill sergeant for a different platoon than PV2 CL’s, entered the female trainees’ 

quarters and summoned PV2 CL to a barracks conference room. Private CL and her 

bunkmate, Private First Class (PFC) SM, dressed in their Army physical training 

(PT) uniforms and accompanied appellant to the conference room where appellant

pulled up his Facebook profile and showed the trainee soldiers a photo of himself in 

his underwear.

Appellant then produced a bottle of alcohol and told the trainee soldiers to 

drink from it. After drinking from the bottle as instructed, PV2 CL testified that she 

soon felt sick and vomited in a nearby bathroom. Upon returning to the conference 

room, she vomited again into a trash can. Eventually, PFC SM, who also drank from 

the bottle, retrieved a mattress from the conference room’s closet and fell asleep on 

the floor opposite where PV2 CL sat in a chair. 

Private CL testified appellant instructed her to not go to sleep until she 

sobered up. Appellant then moved next to PV2 CL and began to rub her back and 

pull her hair out of her face as she continued trying to vomit. Appellant bit and 

“nibbled” PV2 CL’s ear and kissed her mouth and neck. Appellant began to rub PV2 

CL’s thighs, removed her PT pants, moved her PT shorts and underwear to the side, 

and digitally penetrated her vagina. Private CL felt upset, weak, unwell, and drunk; 

she testified later she knew appellant was not supposed to do what he was doing but 

she did not feel like she could yell or try to fight off appellant because he was a drill 

sergeant and she was a trainee soldier. 

Appellant told PV2 CL to remain in place and wait for him as he left the 

room. Private CL complied and, when he returned, she saw him unroll a condom 

onto his penis and sit on a chair. Private CL testified that although she did not want 

to have sex with appellant, he then pulled her on top of him, pulled aside her shorts 

and underwear, and, while covering her mouth, penetrated her vulva with his penis. 

As PV2 CL testified, appellant finished penetrating her and dropped her on the floor,

telling her to “keep this between [them].” Shortly thereafter, appellant told PV2 CL 

to wake up PFC SM, which she did. Then the two trainee soldiers returned to their 

bunk beds to sleep for approximately one hour before their mandatory morning 

formation.
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For the above acts, the court-martial convicted appellant of maltreating PV2 

CL.

4 The panel acquitted appellant of the sexual assault and abusive sexual contact 

charges stemming from the same conduct with PV2 CL. In an Article 39(a), UCMJ,

session discussing several pre-sentencing issues following the announcement of 

findings, appellant’s defense counsel objected to a portion of PV2 CL’s written 

unsworn impact statement offered pursuant to R.C.M. 1001A, which she wrote 

before the panel returned its findings. 5 Defense counsel objected specifically to the 

following passage:

6 months ago today I gave birth to my daughter [E]. From 

the moment I saw her I was filled with the warmth and 

love that I was missing, but I live in fear that she will also 

suffer as I have suffered. I am terrified someone will take 

advantage of her like I was taken advantage of. I can’t 

trust anyone around her. No man is allowed to be near her 

without me there. I can never leave her alone with 

anyone. I have even been afraid of leaving her with her 

own father.

Defense counsel argued the panel had acquitted appellant of sexual assault 

charges against PV2 CL and, since her daughter was born subsequent to the charged 

conduct, her discussion of the charged acts’ effect on her child was speculative and 

inappropriate. Private CL’s Special Victim’s Counsel (SVC) countered that PV2 CL 

“lives in fear of maltreatment, or the maltreatment of her child,” and this fact is 

“directly related to what [appellant] was convicted of.” 

The military judge sustained defense counsel’s objection in part, disallowing 

the last sentence which stated, “I have even been afraid of leaving her with her own 

father.” The military judge explained “there’s almost a connotation there of sexual 

abuse of a child, or something to that extent. I don’t think that’s necessarily what 

she is going for, but I wouldn’t want that to be on the minds of the members. I feel 

that to be improper.” Based on appellant’s maltreatment conviction, the military 

judge then permitted PV2 CL to read her unsworn statement to the members except 

for the final sentence. The military judge also gave relevant instructions to the 

panel concerning unsworn testimony and evidence at trial.

 

4 Specification 2 of Charge IV reads: “In that [appellant], U.S. Army, did, at or near 

Fort Sill, Oklahoma, on or about 1 December 2016, maltreat [PV2 CL], a person 

subject to his orders, by providing her with alcohol until she was drunk, penetrating 

her vulva with his finger, biting her ear, kissing her on the mouth, and penetrating 

her vulva with his penis, without her consent.”

5 Private CL was discharged from the Army and was a civilian by the time of 

appellant’s trial.
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LAW AND DISCUSSION

A. The military judge did not abuse his discretion.

This court reviews a military judge’s ruling to admit evidence for an abuse of 

discretion. United States v. Hamilton, 78 M.J. 335, 340 (C.A.A.F. 2019); United 

States v. Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010). “The abuse of discretion 

standard calls for more than a mere difference of opinion. The challenged action 

must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous.” United 

States v. Baker, 70 M.J. 283, 287 (C.A.A.F. 2011) (internal quotations and citations 

omitted).

Appellant claims the military judge abused his discretion in permitting PV2 

CL’s unsworn impact statement on appellant’s conviction for maltreating her 

because the statement “did not directly relate to or arise from the offense” of which 

appellant was found guilty. Appellant argues that the court-martial panel, in 

acquitting him of abusive sexual contact and sexual assault of PV2 CL, found 

appellant and PV2 CL engaged in consensual sexual acts. Appellant claims there is 

no connection between her “consensual sexual encounter” with appellant and the 

infant daughter, and the military judge’s purported error in permitting PV2 CL’s 

unsworn statement “substantially influenced the adjudged sentence.”

Article 6b, UCMJ, provides crime victims certain rights, including the “right 

to be reasonably heard” at a sentencing hearing relating to that offense. UCMJ art. 

6b(a)(4)(B). A “victim,” as defined in Article 6b, UCMJ, is “an individual who has 

suffered direct physical, emotional, or pecuniary harm as a result of the 

commission” of an offense listed in the UCMJ. UCMJ art. 6b(b). Rule for CourtsMartial 1001A “facilitates the statutory right to ‘be reasonably heard,’” permitting 

UCMJ crime victims to make a sworn or unsworn statement in non-capital cases in 

person or through counsel or designees. United States v. Barker, 77 M.J. 377, 378 

(C.A.A.F. 2018); R.C.M. 1001A(b)–(e).

After examining the entire record, we find no abuse of discretion in the 

military judge permitting PV2 CL’s unsworn statement. While the court-martial 

panel acquitted appellant of sexual assault and abusive sexual contact charges 

concerning PV2 CL, the panel did convict appellant of maltreating her. As a crime 

victim, PV2 CL had the right, as implemented through R.C.M. 1001A, “to be 

reasonably heard” and make an unsworn statement about the emotional impact she 

suffered from appellant’s maltreatment. 

While appellant correctly states a crime victim’s right “to be reasonably 

heard” is not unconstrained or unfettered, the military judge here effectively 

examined and limited PV2 CL’s unsworn statement. On its face, and as edited by 

the military judge, PV2 CL’s unsworn statement is well-focused on her own general 

lack of trust in others as a result of appellant’s maltreatment. On the record, the 
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military judge examined the statement and found PV2 CL’s words to be about her, 

not about her child or the impact of appellant’s actions on her child. Nothing in the 

judge’s instructions to the panel appears to be an inaccurate or a misstatement of the 

law concerning unsworn testimony. Thus, the military judge’s decision to permit 

PV2 CL’s unsworn testimony does not appear be “arbitrary, fanciful, clearly 

unreasonable, or clearly erroneous.” Baker, 70 M.J. at 287.

B. Even if the military judge erred, appellant suffered no prejudice.

A court-martial’s findings or sentence “may not be held incorrect on the 

ground of an error in law unless the error materially prejudices the substantial rights 

of the accused.”6 UCMJ art. 59(a). 

If a military judge errs in admitting evidence at sentencing, the test for 

prejudice “is whether the error substantially influenced the adjudged sentence.” 

Hamilton, 78 M.J. at 343 (citations omitted). This court reviews “the prejudicial 

effect of an erroneous evidentiary ruling de novo.” United States v. Kohlbek, 78 

M.J. 326, 334 (C.A.A.F. 2019) (quoting United States v. Savala, 70 M.J. 70, 77 

(C.A.A.F. 2011) (internal quotation marks omitted)). To determine whether an error 

substantially influenced a sentence, 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.” United States 

v. Bowen, 76 M.J. 83, 89 (C.A.A.F. 2017). An error is more likely prejudicial if the 

fact was not already obvious from the other evidence presented at trial and would 

have provided new ammunition against an appellant. United States v. Harrow, 65 

M.J. 190, 200 (C.A.A.F. 2007).

Even if the military judge erred in admitting the objected-to portion of PV2 

CL’s unsworn statement, we find its admission did not substantially influence the 

sentence. The government’s case-in-chief against appellant was strong and, though 

brief, the government’s sentencing case was concisely effective. Besides PV2 CL’s 

unsworn statement, the government’s sentencing case included the sworn testimony 

of another trainee soldier, PV2 JM.7 Like PV2 CL, PV2 JM was a former soldier by 

the time of appellant’s trial and she told the panel about the psychological impact of 

appellant’s misconduct on her, and how she left the Army as a direct result of 

appellant’s abuse. In sum, the government’s sentencing case centered on how two 

young women (PV2 JM was only seventeen years old at the time of appellant’s 

 

6 Appellant challenges the admission of PV2 CL’s unsworn statement as improper 

under R.C.M. 1001A and does not assert constitutional error. As such, we assess 

prejudice under Article 59, UCMJ. Hamilton, 78 M.J. at 343 n.10 (citing United 

States v. Diaz, 69 M.J. 127, 137 (C.A.A.F. 2010)).

7 Against his pleas, appellant was convicted of aggravated sexual contact of PV2 JM

on or about 21 October 2016, causing her to touch, through clothing, his genitalia by 

grabbing her arm and pulling her hand onto his erect penis.
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aggravated sexual contact), who once looked forward to serving in the Army, had 

left the service as a result of the emotional impact appellant’s actions had on them.

The defense’s case-in-chief consisted of one witness who testified on the 

effects of alcohol and two stipulations of expected testimony. At sentencing, the 

defense called multiple witnesses who testified about appellant’s character. While 

longer than the government’s presentencing case, it was not impactfu l enough to 

overcome the lasting negative effects appellant’s crimes had on PV2s CL and JM 

and the fact appellant perpetrated those offenses while in the ultimate position of 

authority over the trainee soldiers. Compared to the government’s case, we find the 

defense case was relatively weaker.

Addressing materiality and quality, we conclude the objected-to portion of 

PV2 CL’s unsworn statement was a quantitatively significant amount of the total 

statement, which spans just over one page in the record of trial. Even so, trial 

counsel did not reference that portion of PV2 CL’s unsworn statement in his 

sentencing argument. Additionally, in the rest of PV2 CL’s unsworn statement, the 

members heard from PV2 CL about losing trust in people other than her friends, 

having to seek therapy, and how appellant’s misconduct “haunts [her] dreams.” As 

such, the objected-to portion of PV2 CL’s unsworn statement was neither of greater 

or lesser materiality than anything else contained in the statement.

Finally, we note the relatively light sentence appellant ultimately received. 

After conditionally dismissing Specification 7 of Charge II and merging 

Specifications 3 and 4 of Charge II, Charge III and its Specifications, and 

Specification 2 of Charge IV for purposes of sentencing, appellant faced a maximum 

punishment to confinement of thirty-five years. He faced twenty years’ confinement 

based solely on his aggravated sexual contact conviction. The trial counsel argued 

for a sentence to confinement of eight years; defense counsel did not argue for any 

specific sentence. Nevertheless, the court-martial sentenced appellant to only three

years’ confinement, less than ten percent of his total punitive exposure and less than 

half of the sentence advanced by the trial counsel as appropriate. 

Considering the entire record, the relevant prejudice factors, and appellant’s 

adjudged sentence compared to his total punitive exposure, we do not find the 

objected-to portion of PV2 CL’s unsworn statement, even if admitted in error, 

substantially influenced appellant’s sentence.

CONCLUSION

The finding of guilty for Specification 7 of Charge II is SET ASIDE and that 

specification is CONDITIONALLY DISMISSED. See United States v. Britton, 47 

M.J. 195, 203 (C.A.A.F. 1997) (Effron, J., concurring); United States v. Hines, 75 

M.J. 734, 738 n.4 (Army Ct. Crim. App. 2016). Our dismissal is conditioned on 

Specification 4 of Charge I (as renumbered) surviving the final judgment as to the