## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before TOZZI, CELTNIEKS. And BURTON Appellate Military Judges

UNITED STATES, Appellee

v. Sergeant First Clas s PAUL E. THOMAS United States Army, Appellant

ARMY 20150269

Headquarters, Fort Bliss Timothy F. Hayes, Military Judge Colonel Karen H. Carlisle, Staff Judge Advocate

For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major Andres Vazquez, Jr., JA; Major Daniel E. Go ldman, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colone l A.G. Courie III, JA; Major Anne C. Hsie h, JA; Captain Steve T. Nam, JA (on brief).

24 October 2016

---------------------------------- MEMORANDUM OPINION

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

TOZZI, Senior Judge:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of one specification of w illful disobedience of a superior commissioned officer, four specifications of violating a lawful general regulation, one specification of false official statem ent, and two specifi cations of assault consummated by a battery, in violation of Articles 90, 92, 1 07, and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 890, 892, 907, and 928 (2012) [hereinafter UCMJ]. The military judg e sentenced appellant to a bad-conduct discharge, confinement for six months, and reduction to the grade of E- 1. Pursuant to a pretrial agreement, the convening authority approved only so much of the sentence extending

to a bad-conduct disc harge, confinement for 120 days, and reduction to the grade of

E-4.THOMAS—ARMY 20150269

2 This case is before us for review pursuant to Ar ticle 66, UCMJ. Appellate counsel raised one assignment of error whic h merits discussion but no relief. Appellant personally rais ed matters pursuant to United States v. Grostefon

, 12 M.J. 431 (C.M.A. 1982) which we fi nd, after due consider ation, to be wit hout merit. In his sole assignment of er ror, appellant alleges the military judge erred by misinterpreting United States v. Griggs , 61 M.J. 402 (C.A .A.F. 2005), and erroneously allowed the gover nment to introduce imperm issible rebuttal testimony on sentencing. We disagree for the reasons set forth below.

BACKGROUND

Appellant was convicted, pu rsuant to his pleas of, inter alia , one specification of violating a lawful general regulation by wrongfully having a relationship with Private AP, and one specificat ion of violating a lawful regulation by wrongfully having a relationship with Se rgeant AC. At the sentencing portion of tr ial, appellant produced nine witnesses, five of whom testified, in pert inent part, that they would serve with appellant again. In rebuttal, the government called four witnesses, Private (PVT) AP, Sergeant (SGT) AC, Ma jor (MAJ) JT, and Ca ptain (CPT) JA, who all testified that they would not want to serve with appellant again.

Appellant asserts several reasons why the military ju dge erred by allowing the government to introd uce impermissible rebuttal test imony. With regard to the testimony of PVT AP and SGT AC, appellant points out they both were victims in the case, and both te stified under a grant of immunity. Major JT, the brigade S-2 (intelligence officer), was the original inve stigating officer in th e case. Appellant avers that these witnesses cannot reasonably be found to represen t “a consensus view

of the command.” United States v. Griggs , 61 M.J. 402, 410 (C.A.A.F. 2005) (quoting United States v. Aurich , 31 M.J. 95, 96-97 (C.M.A . 1990)). In addition, appellant asserts their test imony did not consti tute proper rebutta l because none of

the defense witnesses called earlier in th e proceeding had claimed MAJ JT, SGT AC, or PVT AP wanted to serve with the appellant.

LAW AND DISCUSSION

A military judge’s decisions to admit or exclude evidence are reviewed for an

abuse of discretion. United States v. Eslinger , 70 M.J. 193, 197 (C.A.A.F. 2011) (citation omitted). In Griggs, our superior court held that Rule for Courts-Martial [hereinafter R.C.M.] 1001(b)(5) (D), despite precluding a witness from offering an opinion on whether an accuse d should receive a punitive discharge, “does not apply to defense mitigation evidence, and specific ally does not preclude evidence that a witness would willingly serve with the accu sed again.” 61 M.J. at 409. The Griggs

court went on to hold:THOMAS—ARMY 20150269

3 Consistent with the historic al concerns regarding command influence, the Governme nt is free to rebut such assertions. As

stated in Aurich , [31 M.J. at 95-97], if an accused ‘opens the door’ by bringing witnesses befo re the court who testify that they want him or he r back in the unit, the Government is permitted to prove th at that is not a consensus view of the

command.”

Id. at 410 (citation omitted). Our superior court continues to adhere to this view. Eslinger , 70 M.J. at 198

. The court in Eslinger went on to caution that such rebuttal testimony must not “r aise the specter of command influence.” Id. at 199 (quoting Griggs , 61 M.J. at 408). Also, as the Military Rules of Ev idence are applicable to sentencing, “a lay witness must have a pr oper foundation to offer an opinion.” Eslinger , 70 M.J. at 199. Im portantly, the court in Eslinger stated:

However, we hasten to note that evidence that the defense

witnesses’ views are not a c onsensus view of the command simply means that retaining th e accused is not the view of every member of the comma nd. It does no t necessarily

mean that the Government may parade the commanding

officer and the rest of the accused’s chain of command to have them give a command view on retention. That would depend on just how wide the defense opened the door.”

Id. (citations and quotat ion marks omitted).

It is apparent from the re cord that the testimony of the government witnesses, called in response to the “retention evid ence” proffered by the defense witnesses was proper rebuttal testimony, clearly contemplated by ou r jurisprudence a nd that of our superior court. The defe nse assertion that this testimony was somehow improper

because no defense witness had specifically claimed that Private AP, Sergeant AC, or Major JT wanted to serve with appellant is without meri t. To lend credence to this argument would eviscerate the holdings in Griggs and its progeny. Regarding the specific rebuttal witnesses called by the government, it is apparent that the testimony of Captain JA, appellant’s company commande r, did not raise the specter of command influence, particularly in li ght of the parade of defense witnesses willing to testify that they would again se rve with appellant. Further, the record

demonstrates that the rebutt al witnesses were all familiar with the appellant’s character and that a proper foundation was laid for th eir opinions. Finally, the testimony of the government rebuttal witnesses clea rly demonstrate that retaining appellant “is not the view of every member of the command.” Griggs , 61 M.J. at 410. The military judge did not abuse his discretion by allo wing the government

rebuttal evidence in this case.THOMAS—ARMY 20150269

4 CONCLUSION

Upon consideration of the entire reco rd, the findings and sentence are

AFFIRMED.

Judge CELTNIEKS and Judge BURTON concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: