UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

TOZZI, CELTNIEKS, and BURTON 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Major GARY S. OSCAR 

United States Army, Appellant 

ARMY 20140445 

Headquarters, 21st Theater Sustainment Command 

R. Peter Masterton, Military Judge (arraignment) 

David H. Robertson, Military Judge (motions & trial) 

Colonel Jonathan A. Kent, Staff Judge Advocate 

For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Lieutenant Colonel 

Jonathan F. Potter, JA (on brief). 

For Appellee: Lieutenant Colonel A.G. Courie III, JA; Major Scott L. Goble, JA; 

Captain John Gardella, JA (on brief). 

18 November 2016 

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

BURTON, Judge: 

 An officer panel sitting as a general court-martial convicted appellant, 

contrary to his pleas, of ten specifications of rape of a child, eight specifications of 

sexual contact, four specifications of lewd acts, two specifications of indecent 

liberties, one specification of indecent conduct, and three specifications of sodomy 

in violation of Articles 120, 120b, and 125, Uniform Code of Military Justice, 10 

U.S.C. §§ 920, 920b, 925 (2000 & Supp. V 2006; 2006; 2006 & Supp. II 2009; 2006 

& Supp. III 2010; 2006 & Supp. IV 2011; 2006 & Supp. V 2012) [hereinafter 

UCMJ]. Additionally, the panel convicted appellant of one specification of indecent 

liberties with a child and three specifications of indecent acts with a child in 

violation of Article 134, UCMJ, 10 U.S.C. § 934 (2000 & Supp. V 2006). The panel 

sentenced appellant to a dismissal, confinement for life without the eligibility of 
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parole, and to forfeit all pay and allowances. The convening authority approved the 

sentence as adjudged, but waived automatic forfeitures for six months. 

This case is before us for review pursuant to Article 66, UCMJ. Appellant 

raises three assignment of error, two of which merit discussion but no relief. 

Appellant personally raised matters pursuant to United States v. Grostefon, 12 M.J. 

431 (C.M.A. 1982) that we find, after due consideration, to be without merit.*

 

BACKGROUND 

Appellant and his wife, Ms. JO, had six children. They had three girls: Ms. 

CO, Ms. SMO, and Ms. MO. Over a period of five years, Ms. CO alleged that 

appellant repeatedly sexually abused her. Ms. SMO and Ms. MO also alleged sexual 

abuse. Appellant was charged and convicted based on these allegations. 

On 9 December 2012, appellant sodomized Ms. CO. Appellant stopped 

briefly because Ms. CO defecated. After he gave her baby wipes to clean herself up, 

appellant resumed sodomizing her and then made her give him oral sex. That same 

day, Ms. CO told her mother, Ms. JO, that appellant raped her repeatedly over the 

previous five years. Ms. CO came forward because she believed appellant was also 

abusing her younger sister. 

Ms. JO immediately reported this to police. The German Police initiated an 

investigation as the events occurred at an off-post residence in Germany. 

Jurisdiction in the case was then given to the United States Army and the United 

States Army Criminal Investigation Command (CID) began investigating. Ms. CO 

 

*

 In his first personally assigned error, appellant asserts his trial defense counsel were 

ineffective because they “fail[ed] to present evidence which would have significantly 

undermined the prosecution’s case.” Appellant submitted no additional affidavits, 

unsworn declarations made under penalty of perjury, or any signed statements directly 

supporting his specific claim of ineffective assistance. See United States v. Axtell, 72 

M.J. 662, 665-66 (Army Ct. Crim. App. 2013). See also United States v. Gunderman, 

67 M.J. 683, 684 (Army Ct. Crim. App. 2009), and United States v. Ellis, 47 M.J. 20, 

22 (C.A.A.F. 1997). Under the circumstances of this case, we see no need to order 

affidavits from counsel or a fact-finding hearing pursuant to United States v. DuBay, 

17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967). The facts in appellant’s allegations—even 

if true—“would not result in relief.” United States v. Ginn, 47 M.J. 236, 248 

(C.A.A.F. 1997). Furthermore, “the appellate filings and the record as a whole 

‘compellingly demonstrate’ the improbability of [appellant’s allegations].” Id. 

Applying the first, fourth, and fifth Ginn principles to appellant’s unsworn 

submission, we reject appellant’s ineffective assistance claim. See Id. 

 
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went to the hospital for medical treatment and a sexual assault forensic evidence 

(SAFE) kit was collected. Ms. CO’s clothes, including her bra, were collected. CID 

conducted a search of the house and collected sheets from the master bedroom, baby 

wipes from the trash, and a towel from appellant’s wall locker. Appellant’s semen 

and deoxyribonucleic acid (DNA) were found on the items collected. The baby 

wipes had a strong fecal odor and one of the wipes contained appellant’s semen 

mixed with Ms. CO’s DNA. The bed sheets, towel, and Ms. CO’s bra contained a 

mixture of a semen DNA profile matching appellant and a non-semen DNA profile 

matching Ms. CO. Ms. CO’s anal swab also revealed semen DNA with appellant 

included as a contributor.

At the time of trial, Ms. CO was fourteen, Ms. SMO was ten, and Ms. MO was 

eight-years-old. All three children testified in detail about being sexually abused by 

appellant. The defense theory of the case was that appellant’s sons were sexually 

abusing his daughters. Appellant testified and denied any inappropriate touching of 

his daughters. According to appellant, his semen was found on the wipes because he 

recently had sex with Ms. JO and used them to clean up. Additionally, the defense 

argued the DNA evidence could have been from one of his sons. 

LAW AND DISCUSSION 

Improper government argument 

“Trial counsel is entitled ‘to argue the evidence of record, as well as all 

reasonable inferences fairly derived from such evidence.’” United States v. Frey, 73 

M.J. 245, 248 (C.A.A.F. 2014) quoting United States v. Baer, 53 M.J. 235, 237 

(C.A.A.F. 2000). However, trial counsel are prohibited from “unduly . . . 

inflam[ing] the passions or prejudices of the court members.” United States v. 

Marsh, 70 M.J. 101, 102 (C.A.A.F. 2011) (quoting United States v. Clifton, 15 M.J. 

26, 30 (C.M.A. 1983)); Rule for Courts-Martial [hereinafter R.C.M.] 919(b) 

Discussion. We focus not “on words in isolation, but on the argument as ‘viewed in 

context.’” Baer, 53 M.J. at 238 (quoting United States v. Young, 470 U.S. 1, 16 

(1985)). We review improper arguments de novo. Marsh, 70 M.J. at 104. 

If an argument is improper, we next determine “whether it materially 

prejudiced the substantial rights of the accused.” Baer, 53 M.J. at 237. We assess 

whether the misconduct impacted the accused’s substantial rights by examining and 

balancing three factors: “(1) the severity of the misconduct, (2) the measures 

adopted to cure the misconduct, and (3) the weight of the evidence supporting the 

conviction.” United States v. Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005). 

Indicators of the severity of the misconduct include: “(1) the raw numbers – the 

instances of misconduct as compared to the overall length of the argument; (2) 

whether the misconduct was confined to the trial counsel’s rebuttal or spread 

throughout the findings argument or the case as a whole; (3) the length of the trial 
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(4) the length of the panel’s deliberations and (5) whether the trial counsel abided by 

any rulings from the military judge.” Id. at 184. 

A. Rebuttal Argument 

During the assistant trial counsel’s (ATC) rebuttal argument, ATC argued 

appellant was concerned about money and the following transpired in the presence of 

the panel: 

 

ATC: . . . [Appellant] is concerned about money—Your 

Honor, and I am concerned about my safety now in this 

courtroom. 

MJ: Okay. What’s the issue? 

ATC: Your Honor, during that part of my argument 

[appellant] leaned over to his military defense counsel . . . 

who had to grab him by the arm as it appeared to me. 

MJ: Alright. Stop. Members, we have to have a hearing 

outside of your presence. Please return to the deliberation 

room. 

 After the panel members left the courtroom, the parties discussed the 

situation. The ATC stated that as she gave her rebuttal argument, she noticed 

appellant reaching towards his defense counsel while appearing to glare at her. The 

trial counsel corroborated the ATC’s account stating he heard “significant 

movement.” The defense explained that appellant was just talking “a little too loud” 

to them so they were telling him to be quiet and military counsel put his arm on 

appellant. Additionally, civilian defense counsel confirmed that there was some 

additional movement when he was leaning over the table in an attempt to tell the 

military defense counsel, who was seated on the other side of appellant, to make an 

objection. The military judge stated he did not see the movement but did hear 

“rustling,” “loud voices,” and “abrupt movement.” 

 The defense moved for a mistrial. The military judge denied the motion 

finding that the ATC’s comments were not intentional or unjustified because there 

were movements and raised voices, no one was between her and appellant, and she 

was at an angle where it was difficult for her to see what was going on. The military 

judge also explained that a mistrial is a drastic remedy and because other remedies 

are available he denied defense’s motion. 

The military judge asked the defense if there was any other relief they wanted 

and mentioned the ability to voir dire the members or for the military judge to give a 
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curative instruction. The defense did not think voir dire was necessary. The 

military judge also encouraged the defense to raise the issue again if the instruction 

was inadequate. The military judge gave the following instruction to the panel 

members: 

MJ: Members, prior to the court’s recess or sending you 

out of the courtroom during a hearing—I looked into a 

matter about concerns by trial counsel about some rapid 

movements she saw out of the corner of her eye. I got 

explanation from all counsel on it. I am fully satisfied 

that there was nothing improper done by any member of 

the defense team or by [appellant], that the action was 

merely interpreted. It’s been all cleared up, and we will 

resume with rebuttal argument. 

ATC resumed her rebuttal argument and there were no additional objections from the 

parties on the issue. 

In the present case, we do not find prosecutorial misconduct. However, we 

find that the ATC’s remark in reference to her fear was improper because it was not 

derived from the evidence presented at trial. 

Applying the Fletcher test, we find that although the first factor may favor 

appellant, the military judge’s actions were sufficient to cure the ATC’s improper 

comment. In response to defense objection, the military judge immediately gave a 

curative instruction to the panel that the matter involved ATC wrongly interpreting 

some movements in the courtroom and ensured the panel that the defense and 

appellant did nothing improper. Additionally, we find the weight of the evidence 

supporting appellant’s convictions is strong: all three of the children testified in 

detail about the sexual abuse. The DNA evidence was conclusive and consistent 

with Ms. CO’s testimony. Considering all three of the Fletcher factors, we conclude 

relief is not warranted because appellant suffered no prejudice. 

 “A military judge has considerable latitude in determining when to grant a 

mistrial. This Court will not reverse the military judge’s decision absent clear 

evidence of abuse of discretion.” United States v. Diaz, 59 M.J. 79, 90 (C.A.A.F. 

2003) (citations and quotation marks omitted). Here, we find the military judge did 

not abuse his discretion when he denied appellant’s motion for a mistrial because the 

curative instruction was a sufficient remedy. We also note that the decision not to 

voir dire the members regarding ATC’s comment indicated defense counsel’s 

satisfaction with the military judge’s instruction. 
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B. Sentencing Argument 

When no objection is made during trial, we review counsel’s arguments for 

plain error, which occurs “when: (1) an error was committed; (2) the error was 

plain, clear, or obvious; and (3) the error resulted in material prejudice to an 

appellant's substantial rights.” United States v. Moran, 65 M.J. 178, 181 (C.A.A.F. 

2007), citing United States v. Powell, 49 M.J. 460, 463-65 (C.A.A.F. 1998). 

At trial, defense counsel did not object to trial counsel’s sentencing argument. 

On appeal, appellant asserts that trial counsel offered numerous instances of 

improper argument during sentencing. We discuss most of these instances and 

assess whether it resulted in prejudice to appellant. 

1. “Keep your kids away from me” 

During the merits portion of the trial, Ms. CO testified that appellant told her, 

“When he’s a grampa to keep my kids away from him, because he wouldn’t be able 

to help himself.” Trial counsel paraphrased this quote and repeated it six times 

during their sentencing argument. 

“When arguing for what is perceived to be an appropriate sentence, the trial 

counsel is at liberty to strike hard, but not foul, blows.” Baer, 53 M.J. at 237 

(citations omitted). Trial counsel may argue any evidence properly introduced into 

evidence on the merits, recommend a lawful sentence, and refer to generally 

accepted sentencing philosophies in argument. See R.C. M. 1001(f)(2) and (g). 

In this case, the evidence was properly introduced on the merits and it was 

offered again in sentencing without objection. Trial counsel mentioned it repeatedly 

as a theme for their sentencing argument. Taking this phrase in context of the entire 

argument, we find it refers to rehabilitation and specific deterrence of misconduct by 

the appellant. Although trial counsel struck hard blows, his argument was derived 

from the evidence and did not cross the line into an improper argument. 

2. Mr. GM’s testimony 

Mr. GM is the victims’ grandfather. He testified during sentencing that he 

took care of the children shortly after Ms. JO told them what happened to the 

children. He moved the youngest children, Mr. GVO, Ms. MO, Mr. SO, and Ms. 

SMO, from Germany to Colorado to protect them. Mr. GM also testified that the 

children, himself, his wife, and ex-wife, were all in therapy as a result of appellant’s 

misconduct. In response to a question about whether he has concerns for his 

grandchildren’s safety and current well-being he stated: “Very much so . . . . 

because I see no regret or remorse from their father,” and explained that their 

progress with therapy has been delayed because appellant has pushed this “charade” 
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for so long. During the sentencing argument, trial counsel asked the members to 

consider his testimony that “he still fears for the safety and for the welfare of his 

[grandchildren]” and that the whole family attends therapy. 

As a family member of the victims, Mr. GM can testify to the “psychological 

and medical impact” of the accused’s crimes on the victims. See RCM 1001(b)(4). 

This evidence was proper victim-impact aggravating evidence because it was 

“directly relating to the offenses of which the accused has been found guilty.” 

United States v. Hardison, 64 M.J. 279, 281 (2007). As such, trial counsel’s 

argument mentioning Mr. GM’s testimony was permissible.

3. Cyber-bullying 

During sentencing, Ms. CO testified about considering ways to kill herself 

because she knew appellant would never stop raping her. Ms. CO testified that she 

was taking medication for depression and sought therapy weekly as a result of 

appellant’s abuse. Ms. CO also testified that one of her friends recently posted on 

her Facebook account: “Didn’t you get raped by your dad?” As a result of that 

posting, she ran outside screaming during a storm and climbed on top of the roof 

hoping to be electrocuted. There was no objection to this testimony at trial. The 

trial counsel then reiterated the “cyber-bullying” instance during the sentencing 

argument. 

We agree with appellant that this instance of “cyber-bulling” was too 

attenuated – the government failed to establish a link between appellant’s conduct 

and a Facebook message sent from “Josh.” This evidence was not proper 

aggravating evidence and it fails Military Rule of Evidence 403’s balancing test. As 

such, we find it constitutes impermissible argument. Although there was no curative 

instruction for the cyberbullying comments, we note that it was briefly mentioned 

and insubstantial in comparison to the other sentencing evidence presented. 

4. Comments on appellant’s unsworn statement 

During sentencing, appellant gave an unsworn statement. During the 

sentencing argument, ATC stated: 

You should also consider what [appellant] said, not during 

his testimony on the stand, but what he just tried to tell 

you within the last hour. This bogus statement—24 hours 

after denying all of what you found him guilty of, quote, 

“I’m a changed man; I’m a better man.” He could have 

said that yesterday. But now just because you’ve brought 

back a guilty verdict, he’s suddenly a changed man and a 

better man. Don’t buy into that, Members. Don’t give an 
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ounce of credit to that statement. He gave that statement 

unsworn and not subject to cross-examination. He cannot 

be believed. 

Trial counsel may comment on the nature of an accused’s unsworn statement - 

including that it has less evidentiary value than a sworn statement - but cannot ask 

the court to draw an adverse inference against the accused for making an unsworn 

rather than a sworn statement. United States v. Breese, 11 M.J. 17 (C.M.A. 1981); 

United States v. Marsh, 70 M.J. 101 (C.A.A.F. 2011). Trial counsel may also argue 

the accused’s lack of remorse during an unsworn statement without commenting on 

the accused’s exercise of a fundamental right. See United States v. Edwards, 35 

M.J. 351 (C.M.A. 1992). See also United States v. Toro, 37 M.J. 313, 318 (C.M.A. 

1993) (Trial counsel’s comment that the accused did not “acknowledge[] [the] 

finding of guilty” in his unsworn statement was a proper comment on the accused's 

lack of remorse).

In the present case, considering the context of ATC’s statement, we find the 

ATC was merely commenting on the nature of the statement – that it was not subject 

to cross-examination. We also find the ATC’s comments about appellant’s lack of 

remorse are reasonable when considering appellant elected to testify at trial, denied 

wrongdoing, and then provided an unsworn statement at sentencing stating: “I’m a 

changed man; I’m a better man.” Thus, under these circumstances, we find the 

ATC’s argument to be permissible. 

5. Prejudice 

Reviewing the alleged instances of improper argument together in context 

with trial counsel’s entire argument, we are convinced the argument as a whole did 

not “seek unduly to inflame the passions or prejudices of court members.” United 

States v. Clifton, 15 M.J. 26, 30 (C.M.A. 1983). In addition, appellant has failed to 

demonstrate prejudice. Considering the weight of the evidence supporting the 

sentence adjudged we are confident that appellant was sentenced based on the 

evidence alone. 

C. Comments on appellant’s Fifth Amendment rights 

 During the merits portion of the trial, a recognized expert in clinical and 

forensic psychiatry testified for the government about sexual assault victim behavior 

and sexual assault offender dynamics. This was a “blind expert.” She did not 

review materials in the case and only knew this was a non-stranger sexual assault 

case involving children. She testified to educate the members about factors that may 

or may not be present in the case. The defense also had an expert in clinical and 

forensic psychology testify during their sentencing case. The defense expert 

evaluated appellant and conducted a risk and rehabilitation potential assessment. 
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 During the defense sentencing argument, defense counsel discussed the 

government’s expert and stated: 

She’s the expert; she’s testified in hundreds of courtsmartial. She’s been in a lot of courts-martial, and the 

government has also paid for her to testify in three of [the 

trial counsel’s] courts-martial. They have their expert. 

How come she wasn’t there? You know why? Because 

she wouldn’t have been able to give you objective, clinical 

statistics. But, more importantly, she never evaluated 

[appellant]. Who did? 

The ATC subsequently objected stating that it was “an unfair characterization. We 

have asked [her] to evaluate him, and the defense denied access to [appellant].” 

Defense counsel did not object to these comments at trial. 

Trial counsel may not comment on the accused’s exercise of a fundamental 

right. Griffin v. California, 380 U.S. 609 (1965); R.C.M. 919(b) Discussion. 

“[U]nless, for example, an accused invites such testimony or argument in rebuttal to 

his own case.” Moran, 65 M.J. at 181 (citing United States v. Robinson, 485 U.S. 

25, 32 (1988); United States v. Carter, 61 M.J. 30, 33 (C.A.A.F. 2005)). When 

invited by the defense, trial counsel comments are permissible when they are a “fair 

response to claims made by the defense.” Carter, 61 M.J. at 33. Because appellant 

failed to preserve this issue at trial, we review for “plain error.” Moran, 65 M.J. at 

181. 

We find the ATC’s comments to be permissible because these statements were 

not implicating appellant’s rights. Even if these statements indirectly or by 

innuendo commented on appellant’s exercise of a fundamental right, the comments 

were a reasonable response to defense’s claim that the government’s expert never 

evaluated appellant. 

 

CONCLUSION 

Upon consideration of the entire record, the findings and sentence are 

AFFIRMED. 

Senior Judge TOZZI and Judge CELTNIEKS concur. 
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FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: