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_______ _______ __________ No. ACM 38706 (reh)

_______ _______ __________ UNITED STATES Appellee

v. Nathan G. WILSON

- CROW Airman First Class (E

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

________________________ Appeal from the United States Air Force Trial Judiciary
Decided 7 May 2019

________________________ Military Judge: Donald R. Eller, Jr. (trial); Vance H. Spath (sentence rehearing)

. Ap proved sentence: Bad

- conduct discharge, confinement for 14 month s, and r eduction to E

- 1. Sentence adjudged 15 May 2018 by GCM convened at Joint Base San Antonio

- Lackland, Texas

. For Appellant: Major Mark C. Bruegger, USAF. For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Mary Ellen Payne , Esquire

. Before MAYBERRY, JOHNSON, and MINK
, Appellate Military Judges

. Senior Judge JOHNSON delivered the opinion of the c ourt, in which Chief Judge MAYBERRY and Judge MINK joined

.

_______ _______ __________ This i s an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Pr actice and Procedure 18.4.

_______ _______ __________ JOHNSON, Senior Judge:
This case is before us for the third time.United States v. Wilson

- Crow , No. ACM 38706 (reh )

2 At Appellant’s origi nal trial, a general court

- ma rtial composed of a panel of officers convicted Appellant , pursuant to mixed pleas, of one specification ofabusive sexual contact, two specifications of sexual abuse of a child, one specification of indecent exposure, one spe cification of assault consumma t ed by a battery, and two specifications of wrongfully providing alcohol to a minor, in violation of Articles 120, 120b, 120c, 128, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920, 920b, 920c, 928, 934. 1 The court

- martial sentenced Appellant to a dishonorable discharge, confinement for two years, forfeiture of all pay and allowances, and reduction to the grade of E

- 1. The convening authority ap p roved the adjudged sentence

. Upon our initial review, we affirmed the findings and sentenc e. United States v. Wilson

- Crow , No. ACM 38706, 2016 CCA LEXIS 107 (A.F. Ct. Crim. A pp. 25 Feb. 2016) (unpub. op.) . The United States Court of Appeals for the Armed Forces (CAAF) granted review, set aside our prior decision, and remanded the case to us for a new review un der Article 66, UCMJ, 10 U.S.C. § 866

. United States v. Wilson

- Crow , 76 M.J. 33 4 (C.A.A.F. 2017). On remand, we set aside the findings of guilt as to Specification 1 of Additional Charge I

— the specification of abusive sexual contact

— as well as the sentence in light of the CAAF’s decision s in United States v. Hills , 75 M.J. 350 (C.A.A.F. 2016), and United States v. Hukill , 76 M.J. 219 (C.A.A.F. 2017). We affirmed the remaining findings, authorized a rehearing, and returned the record of trial to The Judge Advocate General for remand to the convening authority for further action consistent with our opinion. United States v. Wilson

- Crow , No. ACM 38706 (rem), 2017 CCA LEXIS 716 (A.F. Ct. Crim. A pp. 16 Nov. 2017) (unpub. op.)

. The convening autho rity dismissed Specification 1 of Additional Charge I and directed a rehearing for sentencing on the remaining findings of guilt y . On 15 May 2018, a general court

- martial composed of a military judge alone sentenced Appellant to a bad

- conduct discharge, co nfinement for 14 months, reduction to the grade of E

- 1, and forfeiture of all pay and allowances. The convening authority disapproved the adjudged forfeiture and approved the remainder of the sentence.

1 In accepting Appellant’s pleas of guilty to both specifications of wrongfully providing alcohol to a minor in violation of Article 134, UCMJ, the military judge excepted charged language alleging the acts were prejudicial to good order and discipline, of which excepted language Appellant was found not guilty. In addition, Appellant was acquitted of two specifications of rape and two specifications of abusive sexual contact in violation of Article 120, UCMJ.United States v. Wilson

- Crow , No. ACM 38706 (reh )

3 Appellant now raises a single issue for our review: wh ether trial counsel made an improper sentencing argument at the sentencing rehearing. 2 We find no prejudicial error and we affirm.

I. B ACKGROUND In April 2013, Appellant

— an Air Force photographer

— volunteered to serve as an official photographer for a three

- day high school Junior Reserve Officer Training Corps (JROTC) leadership and teambuilding camp in central Texas. Unbeknownst to the other adult supervisors present at the camp, Appel lant participated in a series of games of “truth or dare” with th e students. After one such session, Appellant slapped the buttocks of a 16

- year

- old female student with out her consent. The final game of truth or dare involving Appellant escalated to mo re overt ly sexual behavior, including inter alia Appellant exchanging outer garments with a female student , BD; Appellant sucking the exposed nipple of a female 18

- year

- old student , LR; and Appellant briefly exposing his penis. These acts occurred in the presence of a group of the students, at least one of whom was under 16 years of age. Unrelated to the JROTC camp, in separate incidents in June and July 2013 Appellant provided alcohol to a 19

- year

- old civilian.

II. D ISCUSSION
A. Law Improper argument is a question of law that we review de novo. United States v. Pabelona , 76 M.J. 9, 11 (C.A.A.F. 2017 ) (quoting United States v. Frey
, 73 M.J . 245, 248 (C.A.A.F. 2014) ). The test for improper argument is whether the argument was erroneous and whether the argument materially prejudiced the appellant’s substantial rights. Id . (quoting Fr ey , 73 M.J. at 248). Whenthere is no objection at trial, we review the propriety of trial counsel’s argument for plain error. United States v. Halpin , 71 M.J. 477, 479 (C.A.A.F. 2013) (citation omitted). To prevail under a plain error analysis, the a ppell ant must show “(1) there was an error; (2) it was plain or obvious; and (3) the error materially preju diced a substantial right.” United States v. Erickson , 65 M.J. 221, 223 (C.A.A.F. 2007) (citations omitted). “[T]rial counsel may ‘argue the evidence of r ecord, as well as all reasonable inferences fairly derived from such evidence.’” Halpin , 71 M.J. at 479 (quoting United States v. Baer , 53 M.J. 235, 237 (C.A.A.F. 2000)). “[I] n the context of an allegedly improper sentencing argument, we consider whether ‘ trial counsel’ s

2 Appellant personally raises this issue pursuant to United Sta tes v. Grostefon , 12 M.J. 431 (C.M.A. 198 2 ).United States v. Wilson

- Crow , No. ACM 38706 (reh )

4 comments, taken as a whole, were so damag ing that we cannot be confident’ that [the appellant] was sentenced ‘ on th e basis of the evidence alone.’” Id . at 480 (quoting Erickson , 65 M.J. at 224) (internal quotes omitted)

. B. Analysis Appellant contends the trial counsel made an improper sentencing argument when he included the names of three particular JROTC students in a list of “victims” of Appellant’s offenses. Specifically, Appe llant argues that it was plain error to refer to LR, the 18

- year

- old student whose nipple Appellant sucked, as a victim because she appeared to be one of the organizers of the truth or dare game and was a willing co

- actor. Appellant also contends that BD, the student with whom Appellant switched clothes, and LH, the st udent who dared Appellant to expose his penis, could not properly be considered victims because neither of them testified and there was no direct evidence that either of them observed Appellant’s indecent exposure or any other charged misconduct or was adv ersely affected by it. Although trial defense counsel did not object to the argument, A ppellant contends the reference to LR, BD, and LH as “victims” was plain error. We find no plain error. Trial counsel may argue reasonable inferences fairly derived from the evidence. Halpin , 71 M.J. at 479 (citation omitted). Testimony indicated that LR, BD, and LH were all present when Appellant indecently exposed himself to the group of students. At least some of the students actually observed Appellant’s penis; others may not have, either by choice or as a result of their positioning or circumstances. However, it is a fair inference that all ofthe students present were aware that Appellant had indecently exposed himse lf to the group. Considering all the circumstances, we find it was not improper for trial counsel to refer to those JROTC students who were present when Appellant indecently exposed himself as “victims.” Assuming arguendo that trial counsel’s argument was “plain” or “obvious” error, we find Appellant’s sub stantial rights were not materially prejudiced. See Erickson , 65 M.J. at 223. Appellant was sentenced by a military judge, whois “presumed to know the law and to follow it absent clear evidence to the contrary.” Id . at 225 ( citing United States v. Mason
, 45 M.J. 483, 484 (C.A.A.F. 1997) ). We find no such evidence to the contrary here. Accordingly, we are confident Appellant was sentenced “on the basis of the evidence alone.” Halpin , 71 M.J. at 480 (quoting Erickson , 65 M.J. at 224).

III. C ONCLUSION The approved findings were previously affirmed. The approved sentence is correct in law and fact, and no error materially prejudicial to the substantialUnited States v. Wilson

- Crow , No. ACM 38706 (reh )

5 rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c) (2016) . Accord ingly, the sentence is AFFIRMED

. 3

FOR THE COURT

CAROL K. JOYCE Clerk of the Court

3 We note two errors in the cour t

- martial order with respect to the pleas and findings. First
, the order incorrectly indicates Appellant pleaded “not guilty” rather than “guilty” to Specification 2 of Charge I. Second, the order incorrectly indicates Additional Charge I was “ [ w ] ithdrawn and dismissed” when only Specification 1 thereunder was withdrawn and dismissed; Appellant was tried on Specifications 2 through 5 of Additional Charge I and found “not guilty,” a nd those findings should be reflected in the order with respect to Additional Charge I. We direct the publication of a corrected court

- martial order to remedy these errors.