## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before HAIGHT, ALMANZA, and WOLFE Appellate Military Judges

UNITED STATES, Appellee

v. Staff Sergeant DE ONTE M. SINGLETERY United States Army, Appellant

ARMY 20140686

Headquarters, 1st Cavalry Di vision (Rear)(Provisional) Wade N. Faulkner, Milita ry Judge (arraignment) Kenneth W. Shahan, M ilitary Judge (trial)

Lieutenant Colonel Michael D. Jones, Staff Judge Advoca te (pretrial and addendum) Colonel Alison C. Martin, Staff Judge Advocate (recommendation)

For Appellant: Lieutenant Colonel Charles D. Lozan o, JA; Captain Heather L. Tregle, JA; Captain Katherine L. DePaul, JA (on brief and supplemental brief).

For Appellee: Colonel Mark H. Sydenh am, JA; Major John K. Choike, JA (on brief).

16 June 2016

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MEMORANDUM OPINION

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

WOLFE, Judge:

A military judge sitting as general court-mart ial convicted appe llant, contrary to his pleas, of one specifi cation of attempted sexual ab use of a child under the age of twelve, one specific ation of sexual abuse of a child as a lesser-included offense of rape of a child under twelve , and one specificat ion of sexual abus e of a child under the age of twelve on divers occasions, in violation of Articles 80 and 120(b),

Uniform Code of Milit ary Justice, 10 U.S.C. §§ 88 0 and 920 (2012) [hereinafter UCMJ]. The court-martial sentenced appellan t to be dishonorably discharged from the Army, to be confined for eleven years, and to be reduced to th e grade of E-1. The convening authority approved the sentence as adjudged. 1

1 Automatic forfeitures were deferred until action and then waived for six months for the benefit of ap pellant’s spouse.SINGLETERY—ARMY 20140686

2 This case was referred to this court pursuant to Article 66(b), UCMJ. Appellant assigns two erro rs, one of which merits discussion but not relief. 2 The issues personally submitt ed by appellant under United States v. Grostefon

, 12 M.J. 431 (C.M.A. 1982), do not merit separate discussion or relief.

BACKGROUND

Appellant was convic ted of sexually ab using his ten-year-o ld daughter, AS. The government’s case consiste d of the cred ible testimony of AS, the initial report of AS to her grandmother, statements made by appellant, and the testimony of an expert who explained counter-intuitive be haviors of children. Additionally, the government presented evidence that shortly after appellant became aware he was suspected of abusing AS, he disposed of AS’s bedshe ets and then purchased and

made her bed with new shee ts. Subsequently, appellant sold the entire bed.

The defense called two witnes ses. The first testified that he had just viewed appellant’s penis and his obse rvation of appellant’s penis was inconsistent with the testimony of AS. Se cond, the defense called a witne ss who had visited appellant’s house during the time of the charged o ffenses and he did not see any unusual

behavior.

DISCUSSION

A. Incomplete record of trial.

Appellant argues that the reco rd of trial is incomplete.

“Whether a record is comp lete and a transcript is verbatim are questions of

law that this Court reviews de novo.” United States v. Davenport , 73 M.J. 373, 376 (C.A.A.F. 2014). In a gene ral court-martial, a “compl ete record” is required any time the adjudged sentence includes a punitive disc harge or other punishment exceeding that which may be imposed at a special court-martial. Article 54(c)(1)(A), UCMJ. 3

2 Appellant’s first assignmen t of error requests relief for the 275 day post-trial processing of his case. See United States v. Moreno

, 63 M.J. 129 (C.A .A.F. 2006). Although the delay in this case was presum ptively unreasonable, id

., we do not find a due process violation. Havi ng reviewed the record, we determine that sentence relief is not appropriate in this case. See United States v. Tardif , 57 M.J. 219 (C.A.A.F. 2002). Additionally, we note that appellant requested and was granted

deferment of forfeitu res pending action.

3 We note that a complete reco rd is required for special courts-martial any time the adjudged sentence includes a punitive di scharge or confinement for more than six

(continued . . .)SINGLETERY—ARMY 20140686

3 On 28 July 2014, the defense filed a “m otion for continuance to allow time for the Convening Authority to order the Article 32 investigation into this case to be reopened.” In brief, the defense believed the Article 32 investigating officer had improperly considered an un sworn statement from AS over appellant’s objection.

See Rule for Courts-Martial [hereinafter R.C.M.] 405(g)(4). The statement in question was made during a forensic in terview where the im portance of being truthful was stressed, but AS was not fo rmally sworn. The defense requested a continuance to ask the convening authority to reopen the investigation. The defense did not request—neither in the written motion nor when arguing the motion—that the military judge order the Article 32 investigation to be reopened. 4 When pressed by the military judge, the defense counsel adm itted they had alrea dy raised this issue with the convening authority in filing their objections to th e Article 32. The defense counsel further agreed that by passing on the defense’s object ion to the Article 32 hearing, the c onvening authority had already disagr eed that relief was necessary.

Substantively, the m ilitary judge also discussed the requiremen ts for oaths

when the witness is a child and specifically discussed the case of United States v. Washington , 63 M.J. 418 (C.A.A.F. 2006). See also United States v. RodriguezRivera , 63 M.J. 372, 378 (C.A.A.F . 2006) (“As a ge neral matter, we have permitted greater latitude and fl exibility when it comes to tr eatment and testimony of child witnesses.”).

The military judge ruled as follows: “The defe nse motion for a continuance

or for the court to order a new Article 32 investigation is denied. I’ll include findings of fact and conclusions of law in the record as an Appellate Exhibit at a subsequent time.” There is no evidence the military judg e did, in fact, supplement the record, and there is no evidence of any additional appellate exhibits.

(. . . continued) months. Article 54(c)(1)(B), UCMJ; see also Article 19, UCMJ (The jurisdiction of a special court-martia l is limited such th at a “bad-conduct di scharge, confinement

for more than six months . . . may not be adjudg ed unless a comple te record of the proceedings and testimony has been made.”). Accordi ngly, in the class of cases

where the accused’s sentence does not in clude a discharge but does include six to twelve months confinement, a complete record is required at a sp ecial court-martial,

but not a general court-martial. Until recently, the requirement in R.C.M. 1103(b)(2) that there be a verbatim tran script in all case s where confinement

exceeded six months mooted these differe nces in Article 54, UCMJ. However, R.C.M. 1103(b)(2) was recently amended by section bb of Execut ive Order 13,730 to require a transcript only wh en the sentence to confinem ent exceeds one year. Exec. Order No. 13,730, 81 Fed. Reg. 33,331, 33,337 (May 20, 2016).

4 The defense’s motion was consistent wi th R.C.M. 905(j), which allows, before trial, any issue “which may be resolved upon motion without tr ial of the general issue of guilt” to be submitted to the conven ing authority for decision.SINGLETERY—ARMY 20140686

4 Appellant now asserts that the military judge’s failure to supplement the

record makes the re cord incomplete. 5 We disagree.

We do not equate the failure of a military judge to pu t findings in the record to the record being incomplete. During the course of a trial, a military judge makes numerous rulings. For some rules, the military judge is required to make specific findings. See Military Rule of Evidence [hereinafter Mil. R. Evid

. ] 513(e)(3) (Prior to conducting an in camera review “the military judge mu st find by a preponderance of the evidence . . . .”). However, in the absence of a statutory or regulatory requirement that a ruling be accompanie d by findings, whether to make findings— and the degree of detail in those findings —is within the discretion of the military judge.

Admittedly, and operating from the perspect ive of appellate hindsight, we would often prefer more detail ed findings than the record contains. However, that is perspective of a court that is un burdened with the awesome duties and responsibilities of being the pr esiding official at a contested court- martial. R.C.M. 103(15) (definition of military judge).

Thus, this is not a case where part of the record is incomplete. Rather, this is

a case where the milita ry judge indicated he would supplement the record with additional findings —but did not. United States v. Gray , 7 M.J. 296 (C.M.A. 1979), on which appellant relies, is easily distingu ished. In Gray , the actual ruling of the military judge was omitted entirely from the record. Here, by c ontrast, the record

makes clear the milita ry judge’s ruling.

Accordingly, we do not find appellant has demonstrated th at the record of trial is incomplete. Therefore, as with an y rulings by the milita ry judge, we will perform our appellate review ba sed on the record of trial. To the extent the record does not include the military judge’s reas oning in denying the de fense’s motion, the military judge’s ruling will receive less deference. See, e.g., United States v.

Townsend , 65 M.J. 460, 464 (C.A.A.F. 2008).

B. Consideration of AS’s unsworn statem ent at the Article 32 investigation.

Our superior court summarized the releva nt standards of re view as follows:

As a general matter . . . if an appellant demonstrates that a ruling by the military judge was in error, the burden then

5 We should be clear abou t what argument appellant is not making. Appellant does not assert that the military judge actually ma de additional findings , provided them to the parties, but omitted the findings from the record. That is, appellant does not assert that a marked appellat e exhibit is missing. There is neither evidence in the record, nor argumen t by appellant, that ther e is a missing exhibit.SINGLETERY—ARMY 20140686

5 shifts to the govern ment to demonstrate that the error was

harmless. If the error is of constitutional dimension or

involves unlawful command influence, the government

must show that th e error was harmless beyond a reasonable

doubt. An error is treated as i nherently prejudicial, without the need for a further showing of prejudice, only if it

amounts to a structural defect in the constitution of the trial. . . . on appeal we evaluate an error in an Article 32 proceeding under Article 59(a).

United States v. Davis , 64 M.J. 445, 449 (C.A.A.F. 2 007) (internal citations and quotations omitted). When there is an al legation of error at an Article 32 hearing, “[t]he time for correction of such an error is when the m ilitary judge can fashion an appropriate remedy under R.C. M. 906(b)(3) before it infects the trial. . . . In the event that an accused disagrees with the mi litary judge’s ruling, the accused may file a petition for extraordinar y relief to address immediat ely the Article 32 error.” Id.

On appeal, “the situation is quite diffe rent” and to prevail, an appellant is required to sh ow prejudice. Id.; see Article 59(a), UCMJ. As the Article 32 hearing is not part of the co urt-martial, to be entitled to relief on appeal there must be a showing of prejudice at trial ( i.e. not merely at the Ar ticle 32 hearing). Accordingly, there is a structural preference for error in the Article 32 hearing (or in other accusatory stage matter s) to be addressed at tria l where such error is more easily resolved. In any event—whether th e alleged error is corrected at trial or not—if the error in the Article 32 procee dings does not transm ute into an error during trial—relief on appeal is unlikely.

Turning to the i ssue at hand, it is fa r from clear that the admission of AS’s

statements at the Article 32 investigation was improper, given the leeway accorded

child witnesses. Rodriguez-Rivera , 63 M.J. at 378. The forensic interviewer had a detailed discussion with AS about the importa nce of telling the tr uth. AS was asked about and adequately explai ned the difference between a truth and a li e, providing examples. At the end of the discussio n, the interviewer empha sized the importance of telling the truth, and AS “promised” to tell the truth.

However, even assuming erro r, we cannot find any prejudice in appellant’s court-martial from the Article 32 investig ating officer considering AS’s statements. 6
At trial, AS testifie d and appellant was fu lly able to confront and through counsel was able to cross-examine his daughter on her allegations. Any error during the Article 32 proceedings did not affect appellant’s trial.

6 At trial, the government filed a motion to admit AS ’s recorded statements. However, the government withdr ew the motion at the comp letion of AS’s testimony. In fact, the only time those statements were heard at the court-martial was when portions of AS’s statements were played by the defense during the cro ss-examination

of AS.SINGLETERY—ARMY 20140686

6 CONCLUSION

The findings of guilty a nd sentence are AFFIRMED.

Senior Judge HAIGHT and Judge ALMANZA concur.

FOR THE COURT:

MALCOLM H. SQUIRES. JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: