UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Airman JOSUE GARCIA

United States Air Force

ACM 38744

16 December 2015

Sentence adjudged 16 September 2014 by GCM convened at Misawa Air 

Base, Japan. Military Judge: Todd E. McDowell (sitting alone).

Approved Sentence: Bad-conduct discharge, confinement for 1 year, 

forfeiture of all pay and allowances, and reduction to E-1.

Appellate Counsel for the Appellant: Captain Jonathan D. Legg.

Appellate Counsel for the United States: Captain Rebecca A. Magnone and 

Gerald R. Bruce, Esquire.

Before

MITCHELL, SANTORO, and MAYBERRY

Appellate Military Judges

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent

under AFCCA Rule of Practice and Procedure 18.4.

SANTORO, Judge:

A military judge sitting alone as a general court-martial convicted Appellant, 

consistent with his pleas, of larceny, housebreaking, and making a false official 

statement, in violation of Articles 121, 129, and 107, UCMJ, 10 U.S.C. §§ 921, 929, and 

907. The adjudged and approved sentence was a bad-conduct discharge, confinement for 

1 year, forfeiture of all pay and allowances, and reduction to E-1. On appeal, Appellant 

argues that the military judge erred in admitting certain rehabilitative potential testimony 

from a defense sentencing witness. We disagree and affirm. 
2 ACM 38744

Background

After completing his duties for the day, Appellant drove to the off-base home of a 

friend and fellow Airman. He arrived between 2300 and 2330 and saw that a neighbor’s 

home had been left unsecured; the windows were open and the lights were on, but it did 

not appear that anyone was home. After first checking the front door and finding it 

locked, Appellant entered the garage through an unlocked patio door. The door from the 

garage to the interior of the home was also locked. Undaunted, Appellant entered the 

home through an unsecured window which he had to pull open to climb through.

Once inside, Appellant went room to room taking things he thought he could use 

to “upgrade” his standard of living. He took an Xbox Kinect, a Guess watch, a Macbook 

laptop computer, a digital camera with zoom lens, audio headphones, and a 52-inch 

plasma television. He stored the stolen items in his on-base dormitory room for a couple 

of weeks but later dumped them in the woods.

Investigation disclosed that the burglarized home belonged to a fellow Misawa 

Airman. Appellant, initially interviewed as a witness, falsely told investigators that he 

had never been inside the victim’s home. The victim valued the stolen property at over 

$6,000.

Additional facts necessary to resolve the assignment of error are included below.

Sentencing Testimony

Trial defense counsel called Appellant’s first sergeant, Chief Master Sergeant 

(CMSgt) MB, to testify on his behalf. A portion of CMSgt MB’s testimony related to her 

opinion about Appellant’s rehabilitative potential. After establishing the foundation 

necessary for such testimony, trial defense counsel inquired:

Q. Okay. Now, talk a little bit—you know, based on what 

you know of him and these interactions you’ve had with him, 

talk a little bit about how you feel about his ability to function 

in society after this. 

A. I feel like Airman Garcia will be a valuable member of the 

society. I think he has something to offer. I think that if he 

puts his mind to it, he has the potential, he has unlimited 

potential, just not in the Air Force.

Trial defense counsel made no objection to this testimony and continued with her 

direct examination. Trial counsel did not cross-examine CMSgt MB about this statement. 

During clemency, Appellant specifically called the convening authority’s attention to 
3 ACM 38744

CMSgt MB’s testimony as a basis for reducing his sentence—not because he viewed it as 

error but rather because he viewed it as beneficial. Before us, Appellant asserts that the 

admission of this testimony was error.

We review a military judge’s decision to admit sentencing evidence for an abuse 

of discretion. United States v. Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010). Failure to 

object forfeits appellate review absent plain error. United States v. Eslinger, 70 M.J. 193, 

197–98 (C.A.A.F. 2011). To establish plain error, Appellant must prove: “(1) there was 

an error; (2) it was plain or obvious; and (3) the error materially prejudiced a substantial 

right.” United States v. Erickson, 65 M.J. 221, 223 (C.A.A.F. 2007) (quoting United 

States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)) (internal quotation marks omitted).

Evidence of Appellant’s rehabilitative potential is permissible at sentencing. Rule 

for Courts-Martial (R.C.M.) 1001(b)(5)(A). However, “[a] witness may not offer an 

opinion regarding the appropriateness of a punitive discharge or whether the accused 

should be returned to the accused’s unit.” R.C.M. 1001(b)(5)(D). This restriction applies 

to both government and defense sentencing evidence. United States v. Ohrt, 28 M.J. 301, 

304–05 (C.M.A. 1989). “[A]ppropriateness of punishment” is an issue to be decided by 

the sentencing authority and “cannot be usurped by a witness.” Id. at 305.

The sentencing authority in this case was a military judge. “Military judges are 

presumed to know the law and to follow it absent clear evidence to the contrary.” United 

States v. Erickson, 65 M.J. 221, 225 (C.A.A.F. 2007) (citing United States v. Mason, 45 

M.J. 483, 484 (C.A.A.F. 1997)). 

In the sentencing context, we most frequently apply that precedent with respect to 

allegedly improper arguments. The Court of Appeals for the Armed Forces has 

recognized, “[a]s part of this presumption we further presume that the military judge is 

able to distinguish between proper and improper sentencing arguments.” Id.

In Elsinger, the defense introduced sentencing testimony from three witnesses, all 

of whom opined that Elsinger should remain in the service. 70 M.J. at 196. In response, 

trial counsel presented rebuttal witnesses who testified either that Elsinger should not 

return to his unit or be discharged. Id. at 196–97. On appeal, Elsinger argued that the 

rebuttal witnesses were improperly allowed to offer retention evidence. Id. at 197.

Because Elsinger dealt with prosecution rebuttal witnesses, our superior court’s 

finding that R.C.M. 1005(b)(1) does not apply to rebuttal witnesses does not address the 

issue before us. However, in reaching its conclusion, our superior court outlined the 

analytic framework that guides our analysis in this case.

Reaffirming its decision in United States v. Griggs, 61 M.J. 402, 409 (C.A.A.F. 

2005), the court noted that R.C.M. 1001(b)(5)(D) does not preclude evidence that a 
4 ACM 38744

defense witness would willingly serve with the accused. Id. at 198. “This conclusion 

was based in part on the fact that ‘so-called “retention evidence” is a classic matter in 

mitigation, which is expressly permitted to be presented by the defense.’” Id. (quoting 

Griggs, 61 M.J. at 409). The court also noted that “there can be a thin line between an 

opinion that an accused should be returned to duty and the expression of an opinion 

regarding the appropriateness of a punitive discharge.” Id. (quoting Griggs, 61 M.J. at 

409) (internal quotation marks omitted). Finally, the court concluded R.C.M. 

1001(b)(5)(D) does not apply to defense mitigation evidence, and “specifically does not 

preclude evidence that a witness would willingly serve with the accused again.” Id at 198 

(quoting Griggs, 61 M.J. at 409) (internal quotation marks omitted).

A matter in mitigation is something “introduced to lessen the punishment to be 

adjudged by the court-martial, or to furnish grounds for a recommendation of clemency.” 

R.C.M. 1001(c)(1)(B). Mitigation evidence includes “evidence of the reputation or 

record of the accused in the service for efficiency, fidelity, subordination, temperance, 

courage, or any other trait that is desirable in a servicemember.” Id.

Against this legal landscape, we cannot say that the admission of CMSgt MB’s 

testimony was error, let alone plain error. First, the testimony was offered by defense 

counsel without any request that the military judge disregard the final clause in the 

answer. Second, the answer at issue was a very small portion of the witness’ testimony, 

which CMSgt MB summed up as follows: “He’s young. He’s 20 years old. He’s—has a 

very good work ethic. He never shirks his responsibility as far—if I’ve asked him 

something, even if it’s to get himself—he might be in a little bit of trouble, he’s—he’s 

always been truthful with me. So I really—I can only base it on those conversations, 

meaning he’s—he’s—he’ll do well. I believe he’ll do well.” Third, at the time of the 

admission of the testimony, based on the context in which it was offered, the military 

judge could reasonably have concluded that it fell within the definition of “mitigation 

evidence.”

Although we conclude that there was no error and that even if there were, it was 

not plain or obvious, we also discern no substantial prejudice to Appellant arising from 

the admission of this evidence. As noted above, the sentencing authority was a military 

judge who is presumed to know that the determination of an appropriate sentence was 

solely within his purview. Erickson, 65 M.J. at 225. In addition to the crimes for which 

he was court-martialed, Appellant’s short two years of military service were marred by 

punishment under Article 15, UCMJ, 10 U.S.C. § 815, for consuming alcohol underage, a 

vacation of suspended punishment from that Article 15 after he disobeyed a lawful 

general order, a letter of counseling, a referral enlisted performance report, and the 

establishment of an unfavorable information file. 
5 ACM 38744

Conclusion

The findings and sentence are correct in law and fact, and no error materially 

prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(c), 

UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and sentence are 

AFFIRMED.

*

FOR THE COURT

LEAH M. CALAHAN

Clerk of the Court

 

* Although not raised as an assignment of error, Appellant notes that 37 days elapsed between the convening 

authority’s action and the case’s docketing with this court. As that exceeds the 30-day period established by United 

States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006), it is presumptively unreasonable. Appellant asserts no 

prejudice and we discern none from the record, thus we find that relief under Moreno is not warranted. We also 

decline to grant relief even in the absence of a showing of prejudice. United States v. Tardif, 57 M.J. 219 (C.A.A.F. 

2002).