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_______ _______ __________
No. ACM 39230

_______ _______ __________
UNITED STATES Appellee

v. Benjamin B. CATT Senior Airman (E

- 4) , U. S. Air Force, Appellant

_______ _______ __________ Appeal from the United States Air Force Trial Judiciary

Decided 1 October 2018

_______ _______ __________ Military Judge: Brian D. Teter

. Approved sentence: Bad

- conduct discharge, confinement for 18 months

, forfeiture of all pay and allowances, and reduction to E

- 1. Sentence adjudged 30 January 201 7 by GCM convened at Tinker Air Force Base, Oklahoma

. For Appellant: Major Kirk W. Albertson, USAF; Major Patricia Encarnaci ó n Miranda, USAF

. For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant Colonel G. Matt Osborn, USAF; Mary Ellen Payne , Esquire

. Before JOHNSON

, MINK , and DENNIS

, Appellate Military Judges

. Judge DENNIS delivered the opinion of the c ourt, in which Senior Judge JOHNSON and J udge MINK joined.

_______ _______ __________

This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 18.4.

_______ _______ __________
DENNIS , Judge:
A general court

- martial convicted Appellant, in accordance with his pleas and pursuant to a pretrial agreement, of one specification of wrongfully usingUnited States v. Catt , No. ACM 39230

2 Oxycodone and three specifications of assault consummated by a battery, in violation of Articles 112a a nd 128, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § § 912a, 928. A military judge sitting alone sentenced Appellant to a
bad

- conduct discharge, confinement for 18 months, forfeiture of all pay and allowances, and reduction to the grade of E

- 1. The convening authority suspended the adjudged total forfeitures, deferred the mandatory forfeitures until

a ction , and waived t he mandatory forfeitures for the benefit of Appellant’s

spouse and h is dependent children

. He otherwise approved the sentence as adju dged.
Appellant raises two issues on appeal: (1) whether the military judge erred by allowing improper sentencing evidence under Rule for Courts

- Martial ( R.C.M. ) 1001; and (2) whether trial defense counsel was ineffective by improperly advising Appellant r egarding clemency, failing to introduce character evidence in sentencing, and advising Appellant not to submit clemency matters.
We find no prejudicial error and affirm.

I. B ACKGROUND
Having himself been a victim of severe physical, emotional

, and sexual abus e, Appellant , by his own admission, “allowed anger to control his life.” Appellant’s anger eventually led to three instances of violence towards his family. On one occasion, Appellant began arguing with his wife , CC, and grabbed her neck with his hand. On a second occasion, Appellant bit his then

- four

- year

- old daughter’s cheek when she refused to go to bed. On a third occasion, Appellant struck CC in the face with his hand after she refused to let him touch her.
When CC later moved out of their home, Appellant discovered and used O xycodone pills CC had been prescribed and left behind. Appellant was convicted, in accordance with his pleas, of each of these offenses.

II. D ISCUSSION

A. Improper S entencing E vidence

1. Additional Fac ts
During its sentencing case against Appellant, the P rosecution called ED, Appellant’s sister. After confirming that she had the “opportunity to interact with” Appellant and his family, trial counsel asked her whether her brother had “a certain view about women, how they should be treated in the house.”Defense counsel objected to the evidence as irrelevant and improper aggravation evidence under R.C.M. 1001(b)(4). Senior trial counsel offered the following proffer in response:
I think the testimony would be that a woman, particularly is his property within his household. His wife, particularly, but alsoUnited States v. Catt , No. ACM 39230

3 tied to his daughter

. . . who was bit in the face. I think that this is relevant to show that he treated his wife particularly like his property to explai n the aggravation behind the two assaults consummated by a battery, which the accused has pled guilty to.
When the military judge asked whether it was character evidence, senior trial counsel responded:
It’s not character. It’s aggravation evidence. It’s part of the stipulation of fact where [CC] talks about how he

-- in terms of this slap in the kitchen that I can touch you if I want. This talks
about that.

. . . We’re not saying character evidence is a bad person because he has these beliefs, but this colo rs and this explains why he hit his wife on two occasions and why he bit his daughter.
Trial defense counsel responded:
Your Honor, if the government is able to lay the foundation where this witness can say, “The accused told me I committed these offense because of these views,” I’d tend to agree that that is an aggravator, but if she’s just eliciting an opinion in broad and can’t actually connect that to the instances then, Your Honor, it is improper character evidence and it’s not relevant for

purposes o f sentencing.
The military judge deferred ruling on trial defense counsel’s objection noting that he would “expect a little more foundation.” Senior trial counsel then had the following exchange with ED:
Q. How long have you known your brother for?

A. My whole life.
Q. All his life?

A. Yes.
Q. And you’re his older sister?

A. Yes, sir.
Q. Okay. Again, you grew up together?

A. Yes, sir, we did.
Q. Did you all live together at a certain point?

A. We did. There were periods of separation where he lived with

our grandparents, I lived with my grandparents at times, but for the most part we were together.United States v. Catt , No. ACM 39230

4 Q. In the last few years you’ve had an opportunity to in teract with him on his views on the bibl e or views on women in general?

A. Yes, sir. We’ve had conversations.
Q. Okay. And what I specifically want to talk about was there

ever a conver sation that you had or you overheard your brother state about his feelings on whether or not he could basically put
his hands on his wife or children?

A. He belie ved that a wife should be submissive to their spouse and that if they wanted to do anything to that spouse they could.
Trial defense counsel renewed his objection which the military judge summarily overruled. Trial counsel later argued that Appellant used , among other things, his religion to “mentally pin” CC in her situation. “She was supposed to be subservient to him, that’s his outlook.” Trial counsel asked the military judge to sentence Appellant to four to five years of confinement and to consider

a d ishonorable discharge.

2. Law and Analysis
We review a military judge’s decision to admit or exclude evidence for an abuse of discretion. United States v. Ediger , 68 M.J. 243, 248 (C.A.A.F. 2010) (citing United States v. Manns , 54 M.J. 164, 166 (C.A.A.F. 2000 ) ) . It is an abuse of discretion for the military judge to fail to properly follow the appropriate legal framework for considering evidence. United States v. Ellis , 68 M.J. 341, 344 (C

. A

. A

. F

. 2010) (citation omitted)

. R.C.M. 1001(b)(4) permits a trial counsel to “present evidence as to any aggravating circumstances directly relating to or resulting from the offense of which the accused has been found guilty. ” “The meaning of ‘directly related’ under R.C.M. 1001(b)(4) is a function of both what evidence can be considered and how strong a connection that evidence must have to the offenses of which the accused has been convicted.” United States v. Hardison , 64 M.J. 279, 281 (C.A.A.F. 2007)

. It is well

- established that “ the link between the R.C.M. 1001(b)(4) evidence of uncharge d misconduct and the crime for which the accused has been convicted must be direct as the rule states, and closely related in time, type, and/or often outcome, to the convicted crime. ” Id . at 281

– 82

. As he did at trial, Appellant asse rts that the military judge erred in admitting this evidence because the Government failed to establish the requisite

nexus between Appellant’s purported belief that a wife should be submissive

to her spouse and the offenses of which Appellant was found gu ilty. Citing United States v. Martin

, 20 M.J. 227 , 232 (C.M.A. 1985) (Everett, C.J., concurring in the result), t he Government argues that ED’s testimony establishedUnited States v. Catt , No. ACM 39230

5 Appellant’s motive to commit the offense which “ often serves a proper and useful function during the sentencing phase of a trial

. . . . ” Though evidence of Appellant’s motive may be admissible in the presentencing hearing, the record is void of any evidence that the specific belief ED testified to demonstrated Appellant’s motive to commit the assaults of which he was convicted

.

“ A n accused’s attitude toward the offense of which he has been convictedis directly related to that offense and relevant to fashioning a sentence appropriate to both the offense and offender.” United States v. Alis

, 47 M.J. 817, 825 (A.F. Ct. Crim. App. 1998) (cit ation omitted)

. T he appellant in Alis served as astaff judge advocate and was convicted of fraternization after developing a relationship with an enlisted member worki ng in his office. While their relationship was ongoing, the appellant became aware of an incident of fraternization in another unit. He later “pushed” the unit’s commander to punish the officer more harshly because fraternization “took away from the Corps. ” In finding that the evidence was properly admitted, we noted the significance of evidence that the appellant had engaged in sexual intercourse with his enlisted subordinate the day before he made the statement. Id

. The facts in Alis are notably distingui shed from the facts before us. Here, it is unclear from ED’s testimony whether Appellant stated or ED surmised that Appellant believed wives should be submissive to their spouses. If, as the Government asserts, it was Appellant’s own statement

, there is n o evidence as to when the statement was made or the context in which it was made. See United States v. Ringuette , 29 M.J. 527 (A.F. Ct. Crim. App. 1989) (finding that the appellant’s statements as to his motive for the offenses made during or immediately a fter the commission of the charged offenses were properly admitted). In response to the military judge’s request for “more foundation,” trial counsel solicited testimony about ED’s relationship with Appellant. Had trial
counsel e licited testimony about whe n or in what context Appellant made suchstatements, there may very well have been a sufficient nexus to admit the testimony as a matter in aggravation. In the absence of any evidence connecting ED’s testimony to the offenses of which Appellant was found g uilty, we find that the military judge abused his discretion in admi tting the evidence.

O ur analysis does not end there as “[w] e test the erroneous admission . . . of evidence during the sentencing portion of a court

- martial to determine if the error substantially influenced the adjudged sentence.” United States v. Griggs

, 61 M.J. 402, 410 (C.A.A.F. 2005) (citation omitted). We co nsider the following four factors: “ (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 quali ty of the evidence in question.” United States v. Bowen , 76 M.J. 83, 89 ( C.A.A.F. 2017) (quoting United States v. Kerr , 51 M.J. 401, 405 (C.A.A.F. 1999)).United States v. Catt , No. ACM 39230

6 Appellant has failed to establish prejudice. Appellant’s crimes involved multiple assaults against his wife and an egregious assault on his four

- year

old daughter. In additi on to the serious nature of Appellant’s crimes, his service record was poor. The sentencing evidence against Appellant included several letters of reprimand and counseling. Both Appellant’s wife and the guardian for his daughter gave compelling statements for the military judge’s consideration pursuant to R.C.M. 1001A. Trial counsel only briefly referenced ED’s testimony in his sentencing argument. E ven in the absence of ED’s testimony, Appellant stipulated that, in the midst of assaulting CC, he said “[y] o ur body is not your own and it belongs to me and I can touch you if I want .” Appellant further stated that he bit his daughter to control her behavior

— a statement trial counsel relied upon to argue that Appellant deserved a dishonorable discharge. Put anot her way, the military judge received other evidence of Appellant’s motives, properly admitted and directly related to the offenses, which struck a similar chord to ED’s testimony.
Appellant asserts in particular that the testimony “had a substantial influence on the adjudged bad conduct discharge.” We disagree. The maximum punishment Appellant could have been adjudged included a dishonorable discharge, confinement for eight years, total forfeitures

, and reduction to the grade of E

- 1. Given th e serious ness of Appellant’s offenses and fact that the case was tried before a military judge sitting alone, we are confident neither ED’s testimony nor trial counsel’s use of the testimony in argument had a substantial influence on the imposition of a bad

- conduct discharge in particular, or on the adjudged sentence in its entirety . Furthermore, having considered the character of this offender, the nature and seriousness of his offenses, and the entire record of trial, we find his sentence appropriate. United State s v. Baier , 60 M.J. 382, 384

– 85 (C.A.A.F. 2005).

B. Ineffective A ssistance of C ounsel
Appellant’s claim of ineffective assistance of counsel is three

- fold. More specifically, Appellant alleges that his trial defense counsel w ere ineffective in
that t he y : (1) improperly advised Appellant regarding clemency; (2) failed to introduce character evidence in sentencing; and (3) advised Appellant not to submit clemency matters. We disagree.

1. Additional Facts
Appellant’s sentencing case consisted only of his written a nd oral un sworn statements. Just before deliberating on Appellant’s sentence, the military judge asked whether Appellant had been informed of his post

- trial and appellate rights. Both Appellant and his trial defense counsel affirmatively responded. As is custom in Air Force courts

- martial, the military judge a sked trial defense counsel to provide a written copy of Appellant’s rights advisementUnited States v. Catt , No. ACM 39230

7 to be included as an appellate exhibit in the record of trial. Paragraph nine of
the written advisement includes a statement that the convening authority “may take action on the findings and/or approve all, some, or none of the sentence adjudged in his or her sole discretion [.] ”
After receiving the record of trial and the staff judge advocate’s recommendation, Appellant submitted a written waiver of his right to submit cl emencymatters. In it, Appellant stated, “This waiver is voluntary and no one has coerced me in any way or made any promises in regard to my decision. ”
Both Appellant and trial defense counsel submitted declarations regarding Appellant’s allegation of ineffective assistance of counsel. Appellant’s declaration asserts that he provided three character letters to his trial defense counsel

, one of which described Appellant as a good duty performer and two others which “cast doubt on [CC]’s allegations. ” He also provided his trial defense counsel with family photographs. He was surprised when neither the letters nor the photographs were introduced during his sentencing case. With regardto his decision to submit clemency matters to the convening authority, Appell ant asserts that the first time his trial defense counsel informed him that the convening authority could not disapprove the adjudged confinement or bad

conduct discharge was when he was given the opportunity to submit clemency matters. According to Appell ant, but for the advice of his trial defense counsel, he would have sought clemency and provided the sentencing exhibits that had not been offered during his court

- martial. He also would have informed the convening authority that the effects he suffered af ter being held in solitary confinement for 34 days

. 1
By order of this court, Appellant’s two trial defense counsel each submitted a declaration outlining their consultation with Appellant regarding his sentencing case and post

- trial and appellate rights

. Counsel confirmed that Appellant had provided three character letters and photographs

, but they made a strategic decision not to offer them. They point to three reasons why they decided not to offer the evidence. First, during pretrial interviews with the Government, “the witnesses no longer maintained their opinions as written in their letters.” Second, they wanted to avoid relaxing the rules of evidence to prevent the Government from introducing additional letters of reprimand and counseling, including a letter of reprimand regarding an uncharged incidentbetween Appellant and his wife. Finally, they wanted to focus Appellant’s sentencing case on his taking responsibility for his actions. With regard to Appellant ’s claim that he was misinformed of the conv ening authority ’s power to

1 Appellant’s declaration is the only evidence before the court that Appellant spent 34 days in solitary confinement. Appe llant does not raise , nor do we address, any issue regarding his post

- trial confinement conditions.United States v. Catt , No. ACM 39230

8 grant relief and advised not to submit clemency matters, both counsel maintained that after sentence was announced they informed Appellant of how Article 60, UCMJ, 10 U.S.C. § 860, applied to the convening authority’s power to

gr ant clemency. They also maintain that they did not advise Appellant not to submit clemency.

2. Law and Analysis

This court reviews claims of ineffective assistance of counsel de novo. United States v. Mazza , 67 M.J. 470, 474 (C.A.A.F. 2009) (citations omitted ). When reviewing such claims, we follow the two

- part test outlined by the United States Supreme Court in Strickland v. Washington , 466 U.S. 668, 687 (1984). The United States Court of Appeals for the Armed Forces has applied this standard to military cour ts

- martial, noting that “[i]n order to prevail on a claim of ineffective assistance of counsel, an appellant must demonstrate 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 , 466 U.S. at 687; Mazza , 67 M.J. at 474).
We find no merit in Appellant’s allegation that his trial defense counsel

w ere ineffective in failing to introduce sentencing exhibits during his trial. “Effective advocacy requires an astute, reflective evaluation of a set of circumstances with rational, tactical trial choices flowing therefrom.” United States
v. Burt , 56 M.J. 261, 265 (C.A.A.F. 2002). Here, trial defense counsel made a rational tactical decision not to expose Appellant to the full weight of his prior misconduct including additional misconduct related to Appellant’s treatment of his wife. H ad the evidence been introduced, it would have allowed the Government to introduce evidence of the wi tness’ recantations and served to discount the benefit Appellant would have received from his guilty plea.
We look to Appellant’s own words to resolve his remaining claim of ineffective assistance of counsel. Appellant made clear that after being informed ofthe convening authority’s limited ability to grant clemency, he freely and voluntarily made the decision to waive his right to submit clemency. Even if we

were to assume arguendo that the advice given to Appellant was deficient, Appellant has not estab lished how the advice resulted in prejudice. For this reason we need not resolve the factual dispute between Appellant’s declaration and that of his trial defense counsel. See United States v. Ginn , 47 M.J. 236, 248 (C.A.A.F. 1997) (a post

- trial evidentiar y hearing is not required if the facts alleged would not result in relief

. ) There are no set rules covering the wide spectrum of decisions a trial defense counsel must make in a given case, but to have been unreasonable the counsel’s performance must have been prejudicial. Strickland , 466 U.S. at 696. We find no prejudice here.
Accordingly, we deny Appellant’s claim of ineffective assistance of counsel.United States v. Catt , No. ACM 39230

9 III. C ONCLUSION
The approved findings and sentence are correct in law and fact, and no error materially prejudicial to the substantial rights of Appellant occurred. Article s 59(a) and 66(c) , UCMJ, 10 U.S.C. § § 859(a), 8 66(c), UCMJ . Accordingly, the findings and the sentence are AFFIRMED

. 2

FOR THE COURT

CAROL K. JOYCE Clerk of the Court

2 We note that the expurgated Court

- Martial Order includes names of minor children in the restatement of the convening authority’s action. We direct the pro mulgation of

a corrected expurgated court

- martial order

.