UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

MULLIGAN, FEBBO, and WOLFE 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Staff Sergeant NORMAN R. STOUT 

United States Army, Appellant 

ARMY 20120592 

Headquarters, Fort Drum 

S. Charles Neill, Military Judge 

Colonel Steven C. Henricks, Staff Judge Advocate 

For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA; 

Captain Timothy G. Burroughs, JA (on brief); Colonel Mary J. Bradley, JA; Major 

Patrick J. Scudieri, JA; Captain Timothy G. Burroughs, JA (on reply brief). 

For Appellee: Lieutenant Colonel A.G. Courie III, JA; Major Melissa Dasgupta 

Smith, JA; Captain Jennifer A. Donahue, JA (on brief). 

9 April 2018 

---------------------------------- 

MEMORANDUM OPINION 

---------------------------------- 

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

FEBBO, Judge: 

 As this case demonstrates, successfully challenging an appellant’s guilty plea 

on appeal can carry significant risk, especially when charges conditionally dismissed 

as part of a pretrial agreement (PTA) reemerge at a rehearing and serve to increase 

the appellant’s punitive exposure. 

In 2012, appellant, before a military judge sitting as a general court-martial, 

pleaded guilty pursuant to a PTA to one specification of abusive sexual contact with 

a child, one specification of indecent liberties with a child, and one specification of 

possession of child pornography in violation of Articles 120 and 134, Uniform Code 

of Military Justice [UCMJ], 10 U.S.C. §§ 920 and 934 (2006 & Supp. I 2008). In 

accordance with the PTA, the military judge conditionally dismissed nine other 

specifications, which would ripen into dismissal with prejudice upon appellate 
STOUT—ARMY 20120592 

2 

review. On appeal, we granted appellant’s sole assignment of error that his pleas 

were improvident, set aside the findings and sentence, and authorized a rehearing. 

United States v. Stout, 2014 CCA LEXIS 469 (Army Ct. Crim. App. 25 Jul. 2014) 

(mem. op.). 

As we explain in further detail below, appellant was not convicted at the 

rehearing of any offense to which he pleaded guilty at the first trial.1 Instead, this 

case is before us for review under Article 66, UCMJ, based upon several offenses 

that, at the first trial, the government elected not to pursue in accordance with the 

PTA. As the sentence limitations contained in Article 63, UCMJ, and Rule for 

Court-Martial [R.C.M.] 810 did not apply to these offenses, the convening authority 

was able to approve the adjudged sentence that, in terms of confinement, was more 

than twice as long as that adjudged based on appellant’s initial guilty plea.2, 3 

We conclude appellant’s PTA was cancelled and void once this court set aside 

his improvident guilty plea, thus placing appellant and the government in the same 

position they were at the start of the first trial. Of the remaining issues raised, we 

find one warrants relief, although for a reason other than posed by appellant. We 

have also considered the matters personally asserted by appellant pursuant to United 

States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find they lack merit.4 

 

1

 The military judge dismissed the abusive sexual contact charge after arraignment, 

granted defense counsel’s motion under R.C.M. 917 for a finding of not guilty as to 

the indecent liberties charge, and found appellant not guilty of possessing child 

pornography. 

2 See R.C.M. 810(d)(1). The maximum punishment at the retrial based upon the 

findings of guilty included a dishonorable discharge and confinement for 115 years. 

3

 Despite the outcome at the rehearing, appellant did not complain on this appeal that 

he received deficient advice regarding the risks of appealing the providence of his 

guilty plea or the risks of entering a plea of not guilty at the rehearing. We note 

appellant, during his unsworn statement at the retrial, commented “I threw the guilty 

plea.” Out of caution, we invited appellant if he wanted additional time to file 

supplemental assignments of error. Appellant declined our invitation. 

4

 Appellant’s Article 13, UCMJ, claim warrants comment. After this court set aside 

the findings and sentence of the first trial, appellant was paid as an E-1 instead of as 

an E-6. At his rehearing, the military judge found this pay discrepancy was not as 

punishment, but the function of a Defense Finance and Accounting Service policy 

and that agency’s interpretation of their statutory authority to pay an accused 

pending a rehearing. We agree. See Howell v. United States, 75 M.J. 386 (C.A.A.F. 

2016). 
STOUT—ARMY 20120592 

3 

BACKGROUND 

A. The Offenses 

Appellant was stationed at Fort Drum, New York, while his family lived in 

Michigan. Appellant’s family moved to Watertown, New York, and joined him in 

August 2008. Appellant, his wife, and her two children lived together in Watertown 

from August 2008 until June 2009. 

At the time they lived together, appellant’s stepdaughter, NL, was between 14 

and 15 years old. Since NL was maturing physically, appellant’s wife asked 

appellant to give NL a “sex talk.” Appellant used these “sex talks” as a means to 

perform multiple sexual acts on his stepdaughter, to include: placing NL’s hand on 

his genitalia; touching her breasts, and touching her genitalia; licking NL’s vagina; 

and watching pornography with NL sitting on his lap while he had an erection. 

Since NL’s mother started work very early in the morning, these sexual acts 

occurred around once a week in the morning when appellant did not have duty or 

physical fitness training. 

On one occasion, appellant’s wife observed appellant standing outside the 

shower while NL was bathing. Appellant’s wife thought it was inappropriate for 

him to be in the bathroom while their daughter was showering. However, appellant 

provided her with what she viewed as a satisfactory explanation for his presence. 

On another occasion, appellant pulled open the curtains and watched NL shower. On 

yet another occasion while NL showered, appellant entered the shower naked, 

rubbed NL’s naked body, and washed her hair. 

Around June 2009, appellant and his family temporarily stayed in a hotel in 

advance of appellant’s permanent change of station (PCS) from Fort Drum and the 

family moving back to Michigan. While at the hotel room alone, appellant 

undressed and pushed NL onto a bed. Appellant laid on top of her while he was 

naked and with an erect penis before they were interrupted by a phone call. 

In 2010, while appellant was deployed to Iraq, NL confided to her mother that 

appellant had been sexually abusing her. When his wife confronted appellant about 

the allegations over the phone, appellant stated “he did not do anything she did not 

want or show her anything she did not want to see.” His wife reported the 

allegations of sexual abuse to the state police. 

As part of the subsequent investigation, a U.S. Army Criminal Investigation 

Command (CID) investigator in Iraq interviewed appellant. In his statement to CID, 

appellant explained: he discussed sexual education with NL, but did not touch her 

inappropriately even though during some of these sex talks, NL may have been 

straddling him; while on a couch together, NL was “grinding her buttocks into his 
STOUT—ARMY 20120592 

4 

pelvic area;” he may have inadvertently touched her breast while they were “horsing 

around;” he spoke to NL while she was showering and only “poked” at the curtains 

“to be funny;” NL may also have walked in on him when he was getting out of the 

shower and saw his erect penis; he may have laid in bed with NL to talk; and NL saw 

him watch adult pornography and may have observed him with an erection. 

Appellant admitted he had dreams about sexual encounters with NL that may have 

included having intercourse with her. 

At the contested rehearing, among other defenses, appellant’s counsel argued 

that NL fabricated all of the allegations because she wanted to live at the family’s 

home located on a farm in Michigan. 

B. Procedural History 

At the original trial, appellant entered into a PTA with the convening 

authority (CA) that served to cap any confinement to ten years, but put no other 

limitations on the adjudged sentence the CA could approve. As part of the PTA, the 

CA agreed to dismiss nine other specifications, to include abusive sexual contact 

with a child, indecent conduct with a child, sodomy of a child, and assault with 

intent to commit rape.5

 This dismissal was without prejudice, to ripen into with 

prejudice upon appellate review. The PTA provided the CA could cancel the 

agreement if the appellate court found appellant’s guilty plea to be improvident. 

During his plea inquiry, the military judge discussed the terms of the offer for PTA 

with appellant. Appellant stated he understood and agreed with these terms. Upon 

acceptance of the appellant’s plea, the military judge conditionally dismissed the 

remaining specifications in accordance with the terms of the PTA. 

 

5

 The promulgating order for the first trial, General Court Martial Order Number 27, 

Headquarters, Fort Drum, Fort Drum, New York, dated 27 November 2012, 

incorrectly reflects a finding of “not guilty” to: Specifications 1, 2, 4, 6, 7 and 8 of 

Charge I; the Specification of Charge II and Charge II; the Specification of Charge 

III and Charge III; and Specification 2 of Charge IV. The appellant was not 

acquitted of these charges; the military judge dismissed them in accordance with the 

PTA “without prejudice, to ripen into prejudice upon appellate review.” The Report 

of Result of Trial prepared in accordance with Rule for Court-Martial 1101(a) 

likewise shows these charges were dismissed. The CA, in taking action on the case, 

did not change any of the findings of the trial court or announce any action contrary 

or different than the terms of the PTA. It is, therefore, clear to us from the record 

that the promulgating order is in error and should properly reflect these charges as 

“dismissed without prejudice, to ripen into prejudice upon appellate review.” We, 

accordingly, correct that order here. 
STOUT—ARMY 20120592 

5 

Following our decision, the government referred most of the original charges 

to a retrial, with some changes.6 Prior to the trial on the merits, defense counsel 

moved to dismiss the charges that had been dismissed at the first trial pursuant to the 

PTA, arguing the dismissal of these charges ripened into dismissal with prejudice 

once the case was reviewed on appeal. In denying this motion, the military judge 

found that the “four corners of the agreement” meant dismissal ripened upon 

completion of appellate review. The military judge concluded that the PTA 

expressly stated that the agreement could be cancelled if appellant’s initial guilty 

plea was found improvident on appeal, a reading that was also consistent with 

R.C.M. 705 (Pretrial agreements). 

Appellant then pleaded not guilty before a military judge at the retrial. The 

military judge found appellant guilty of three specifications of abusive sexual 

contact with a child, two specifications of committing an indecent act with a child, 

sodomy with a child, and assault with the intent to commit rape, in violation of 

Articles 120, 125 and 134, UCMJ. This time, appellant’s sentence included a 

dishonorable discharge, confinement for eighteen years, and reduction to the grade 

of E-1. The CA approved the adjudged sentence and credited appellant with 779 

days towards confinement. 

 

LAW AND DISCUSSION 

A. Effect of the PTA from the first trial 

Appellant argues that the CA’s agreement under the PTA to dismiss seven of 

the specifications “upon appellate review” was satisfied when his first trial was 

docketed with this court on appeal.7 We disagree. 

“When an appellate issue concerns the meaning and effect of a pretrial 

agreement, interpretation of the agreement is a question of law, subject to review 

under a de novo standard.” United States. v. Smead, 68 M.J. 44, 59 (C.A.A.F. 2009) 

(citing United States v. Lundy, 63 M.J. 299, 301 (C.A.A.F. 2006)). 

Appellant suggests the term “upon appellate review” in the PTA created an 

ambiguity that must be resolved in appellant’s favor because, essentially, that term 

could be equated with docketing of the case with this court. That is, it could be read 

 

6

 The convening authority, upon the advice of the Staff Judge Advocate, did not 

refer one specification, alleging abusive sexual contact with a child, to the new trial. 

7

 Specifications 1, 2, 3, 5 and 6 of Charge I, Charge II and its Specification, and 

Specification 2 of Charge III (as renumbered at the retrial). Appellant also asserts 

the CA “entered findings of not guilty” as to these specifications. This argument 

lacks merit. See supra note 3, at 4. 
STOUT—ARMY 20120592 

6 

to mean the CA would dismiss the charges before this court completed its review of 

appellant’s guilty plea. This argument fails for two reasons. 

First, individual terms of a PTA are not read in a vacuum. Basic principles of 

contract law apply when interpreting a PTA. United States v. Acevedo, 50 M.J. 169, 

172 (C.A.A.F. 1999) (citations omitted). When the terms of an agreement “are 

unambiguous, the intent of the parties is discerned from the four corners of the 

contract.” Id. We agree with the military judge when he concluded a plain reading 

of appellant’s PTA meant the charges would be dismissed upon completion of 

appellate review. This is the only reasonable reading of the PTA given that the 

agreement expressly stated the CA may withdraw from the agreement if appellant’s 

plea were determined improvident by this court. 

Second, appellant cannot enforce a term of PTA that no longer exists. The 

PTA provided that appellant would plead guilty to several specifications. Needless 

to say, at the rehearing, appellant’s plea of not guilty to all charges violated this 

agreement. The PTA provided the CA could withdraw from the agreement upon a 

determination by our court that appellant’s plea was improvident. Far from being a 

unique PTA term, this was simply a restatement of the CA’s authority set forth in 

R.C.M. 705(d)(4)(B) to withdraw from an agreement upon an appellate decision 

finding appellant’s plea improvident. Our decision setting aside the findings and 

authorizing a rehearing in this case “place[d] the United States and the accused in 

the same position as they were at the beginning of the original trial.” United States 

v. Von Bergen, 67 M.J. 290, 294 (C.A.A.F. 2009) (quoting United States v. Staten, 

21 C.M.A. 493, 495, 45 C.M.R. 267, 269 (1972)); see R.C.M. 810 (where rehearing 

requires findings on all charges and specifications, the procedure shall be the same 

as the original trial). Very clearly, by referring all of the charges to the retrial, the 

CA withdrew from the PTA. This decision by the CA in withdrawing from the PTA 

“was to place the parties in the pretrial status quo ante.” Von Bergen, 67 M.J. at 

293. That is, the net effect of authorizing a rehearing in this case was to place the 

parties in the position as if the first proceeding never happened. See Howell v. 

United States, 75 M.J. 386, 392 (C.A.A.F. 2016) (citations omitted). 

This court finds that the terms of the PTA were unambiguous and that the 

PTA was cancelled when this court found appellant’s guilty plea improvident. The 

charges and specifications were not dismissed under the terms of the PTA. As such, 

at the rehearing the CA was authorized to re-refer Specifications 1, 2, 3, 5 and 6 of 

Charge I, Charge II and its Specification, and Specification 2 of Charge III for the 

rehearing. 

B. Did the government make major changes to three of the alleged offenses? 

At the new trial and again on appeal, appellant asserts amendments made by 

the government to Specifications 1 and 6 of Charge I and the Specification of 
STOUT—ARMY 20120592 

7 

Charge II prior to referral of charges to the rehearing constituted a major charge 

requiring a new preferral under R.C.M. 603(d). We disagree. 

1. Changes at issue 

In 2011, the three disputed specifications were preferred, along with the other 

charges later heard at the retrial, and an Article 32, UCMJ, investigation was 

completed. NL testified at the Article 32 hearing that appellant sexually abused her 

when they lived in an apartment at Watertown, New York. She could not recall the 

specific dates she lived at the Watertown residence, but stated her mother would 

know the dates. At the Article 32, UCMJ, hearing, NL’s mother testified they lived 

in Watertown between August 2008 and June 2009. In 2012, the CA referred the 

three specifications, along with others, to appellant’s initial trial. However, at the 

first trial, the date ranges on these three charges were not expanded prior to referral 

to cover the entire period NL resided in Watertown. 

On 4 November 2014, after our remand, the government amended the date 

ranges for these three specifications as follows: Specification 1 of Charge I, alleging 

abusive sexual contact, from “on or about 1 August 2008 and on or about 6 August 

2008” to “on or about 1 August 2008 and on or about 3 June 2009;” Specification 6 

of Charge I, alleging indecent liberties with a child, from “on or about 14 January 

2009 and on or about 28 January 2009” to “on or about 7 August 2008 and on or 

about 3 June 2009;” and the Specification of Charge II, alleging forcible sodomy, 

from “on or about 14 February 2009 and on or about 22 March 2009” to “on or about 

7 August 2008 and on or about 3 June 2009.” On 17 November 2014, following the 

pretrial advice and recommendation of the Staff Judge Advocate (SJA), the CA 

referred the charges and specifications to a general court-martial. 

During an Article 39(a), UCMJ, session on 30 January 2015, appellant moved 

to dismiss the amended specifications on the basis that the changes were major and 

required repreferral under R.C.M. 603. The military judge ultimately denied this 

motion, reasoning in part that the changes to the dates did not constitute a major 

change as they did not “add a party, change the offenses, or add a substantial matter” 

not fairly included in the previously-preferred [s]pecifications,” and further, given 

appellant’s opportunity to prepare a defense to the amended charges, did not affect a 

substantial right of the appellant. The contested trial on the merits began on 14 

September 2015. 

2. Were these major changes under Rule for Courts-Martial 603? 

 “Whether a change made to a specification is minor is a matter of statutory 

interpretation and is reviewed de novo.” United States v. Reese, 76 M.J. 297, 300 

(C.A.A.F. 2017) (citing United States v. Atchak, 75 M.J. 193, 195 (C.A.A.F. 2016)). 

Rule for Courts-Martial 603(a) provides “[m]inor changes in charges and 
STOUT—ARMY 20120592 

8 

specifications are any except those which add a party, offenses, or substantial matter 

not fairly included in those previously preferred, or which are likely to mislead the 

accused as to the offenses charged.” The government can make minor changes to a 

charge and specification before arraignment. R.C.M. 603(b). Major changes, or 

“[c]hanges or amendments to charges or specifications other than minor changes 

may not be made over the objection of the accused unless the charge or specification 

affected is preferred anew.” R.C.M. 603(d). 

Generally, “changes in the alleged time or date of an offense are permissible 

since they normally do not affect the substance of the offense, preclude invocation 

of the statute of limitations, or mislead the accused as to that which he must defend 

against.” United States v. Longmire, 39 M.J. 536, 538 (A.C.M.R. 1994) (citing 

United States v. Hunt, 37 M.J. 344 (1993); United States v. Brown, 16 C.M.R. 257; 

United States v. Squirrel, 2 U.S.C.M.A. 146, 7 C.M.R. 22 (1953)). Applying the 

plain language of R.C.M. 603, we do not find the military judge erred in finding the 

changes were minor. 

First, the change did not change the substance of each offense and the overt 

acts remained the same. The alleged conduct, parties, and location of the offense, 

remained the same. Second, the change in date range did not affect a substantial 

matter not fairly included in the previously preferred charges and specifications. 

Each of the specifications included “on or about” language and the dates of the 

alleged sexual abuse were not offense-defining. Third, since the specifications did 

not include “on divers occasions” language, no additional offenses were alleged by 

the changes in the date range for the specifications. 

 

We conclude, as did the military judge, repreferral of these charges was not 

necessary because the changes to the date ranges were minor. 

 

3. Prejudice Analysis for Pre-Referral Amendments 

The military judge’s ruling was made before CAAF issued Reese. As such, 

we note the military judge, in determining the changes in this case were minor, 

relied upon United States v. Sullivan, where our superior court opined a change is 

minor if “no additional or different offense is charged . . . and if the substantial 

rights of the defendant are not prejudiced.” 42 M.J. 360, 365 (C.A.A.F. 1995) 

(citations omitted). Our superior court in Reese, overturned the second prong of this 

longstanding test in finding the plain language of R.C.M. 603(d) does not 

contemplate prejudice as a consideration in determining whether a change is major 

when the defense objects to the change. Reese, 76 M.J. at 301. 

However, even in light of Reese, the military judge’s ultimate conclusion was 

correct, as the changes to these charges were not major and the pre-referral

amendments of the specifications for the rehearing did not prejudice a substantial 
STOUT—ARMY 20120592 

9 

right of the accused. As our superior court noted in Reese, a major change 

effectively deprives a court of jurisdiction to hear the charge. 76 M.J. at 301-02 

(“The practical effect is that if a change is major and the defense objects, the charge 

has no legal basis and the court-martial may not consider it unless and until it is 

‘preferred anew,’ and subsequently referred.”); see R.C.M. 201(b)(3). Reese is 

distinguishable from this case in that the changes here occurred prior to referral. 

Normally, Article 59(a), UCMJ, prohibits an appellate court from setting aside a 

finding of guilty without finding prejudice. In Reese, because the offense (once 

amended) had never been referred to trial, the court-martial lacked jurisdiction, and 

Article 59(a), UCMJ, did not apply. Here, however, as the charges were amended 

prior to referral, we would see no way to avoid the mandate of Article 59(a), UCMJ. 

In any event, as we find any changes were “minor,” we need not decide the issue 

definitively. 

Unlike the post-referral amendments in Reese that deprived the courtmartial of jurisdiction to hear the charges, the amendments to the charges were 

made prior to the SJA’s pretrial advice and referral by the CA. The amendments 

were warranted by the evidence presented at the Article 32, UCMJ, 

investigation. Article 34(c), UCMJ, supports the SJA recommending postArticle 32 and pre-referral changes to charges and specifications if warranted by 

the evidence. “If the charges or specifications are not formally correct or do not 

conform to the substance of the evidence contained in the report of the 

investigating officer, formal corrections, and such changes and in the charges 

and specifications as are needed to make them conform to the evidence, may be 

made.” UCMJ, art. 34(c). 

Appellant was not prejudiced by the pretrial amendments and was on notice of 

the charges he needed to defend against. The changes were made before referral, 

before arraignment, and 10 months before the actual trial dates for the rehearing. 

The appellant was not misled as to the offenses charged, did not request a new 

Article 32 hearing, or request a bill of particulars. Appellant was aware from the 

Article 32 the specific conduct alleged in each of these specifications and the 

evidence supporting the allegations, to include NL’s testimony that the sexual abuse 

occurred when they lived in Watertown. In light of the evidence adduced at the 

Article 32 investigation, we find appellant’s argument he was misled unpersuasive.8

 

Indeed one of the substantial purposes of an Article 32 hearing is to “consider the 

form of the charges.” The pre-referral amendments did not increase the maximum 

 

8

 Errors in an Article 32, UCMJ, proceeding are tested on direct review for prejudice 

under Article 59(a), UCMJ. United States v. Davis, 64 M.J. 445, 449 (C.A.A.F. 

2007); see also United States v. Mickel, 9 C.M.A. 324, 327, 26 C.M.R. 104, 107 

(1958) (“Once the case comes to trial on the merits, the pretrial proceedings are 

superseded by the procedures at the trial; the rights accorded to the accused in the 

pretrial stage merge into his rights at trial.”).
STOUT—ARMY 20120592 

10 

punishment for the offenses. The changes did not affect the statute of limitations 

and appellant is protected against double jeopardy. 

We conclude, as did the military judge, that appellant was not materially 

prejudiced by the pre-referral changes to the specifications prior to the rehearing. 

C. Legal and Factual Sufficiency for Indecent Liberties 

Appellant asserts that the evidence is legally and factually insufficient to 

support the finding that appellant committed indecent liberties on divers occasions 

by “entering the bathroom where [NL] was showering, opening the shower curtain, 

looking at her naked body, and watching her shower,” as set forth in Specification 5 

of Charge I. We disagree, but nonetheless provide relief on a separate basis. 

NL testified appellant watched her shower a few times, but could “only 

remember about three times” specifically. First, on one instance, appellant entered 

the shower naked and touched her everywhere to include her vagina and breasts. On 

a second occasion, appellant swung open the shower curtains and looked at NL while 

she was showering, conduct covered by Specification 5 of Charge I. On a third 

occasion, NL testified that her uncle caught appellant opening the curtains while she 

was showering. However, this third incident was not within the charged locations or 

timeframes and was not reflected on the charge sheet. 

We view the issue here as one involving an unreasonable multiplication of 

charges. Appellant was charged with two shower incidents involving NL, both 

occurring in Watertown, and the evidence adduced at trial only supported two 

charged incidents, with one, covered by Specification 6 of Charge I, involving 

additional conduct by appellant. However, the “divers” language in Specification 5 

of Charge I, as it alleges much of the same conduct, would operate to hold appellant 

liable for substantially the same conduct in two different specifications. 

Accordingly, we grant relief in our decretal paragraph by dismissing the language 

“on divers occasions” from Specification 5 of Charge I. See United States v. Quiroz, 

55 M.J. 334 (C.A.A.F. 2001). 

D. Ineffective Assistance of Counsel 

 

Appellant asserts that his defense counsel was ineffective for calling a 

witness, Ms. Tiffani Greenwald, who bolstered the government’s case, and by failing 

to pursue evidence that NL’s testimony may have been unduly influenced by a 

Victim Witness Liaison, Ms. JA. We disagree. 

1. Ms. Greenwald’s Testimony 

At trial, NL testified that she spoke to her close friend and neighbor in 

Michigan, Ms. Greenwald, on numerous occasions and told her “about 90 percent of 
STOUT—ARMY 20120592 

11 

what happened” with appellant. In response, defense counsel called Ms. Greenwald 

to testify for the defense on findings. Her testimony consisted of 5 pages of the 631 

page transcript. Ms. Greenwald testified that NL had called her only once from New 

York. NL was upset and said that appellant was touching her in inappropriate places. 

NL did not discuss specifics of where appellant was touching her. NL described 

wrestling with appellant, which made her feel uncomfortable. NL also mentioned 

appellant watched her as she showered. That is, Ms. Greenwald contradicted NL on 

the number of times they talked and the specificity of the alleged abuse. However, 

Ms. Greenwald’s testimony was generally consistent with NL’s report of being 

abused. 

In closing argument, defense counsel put forward a theme that NL embellished 

the wrestling and incident in the shower because she didn’t want to leave a farm in 

Michigan, where she lived with her mother and siblings, and move back with 

appellant. Defense counsel highlighted NL’s testimony she told Ms. Greenwald “90 

percent” of what happened, and this amounted to wrestling and looking at NL in the 

shower. While conceding wrestling and teaching NL self-defense involved touching, 

defense counsel argued appellant had no improper purpose in touching NL. Rather, 

NL’s story that the conduct was abusive came forth upon learning the family would 

be leaving Michigan and moving back with appellant. Added to this theme, counsel 

argued that NL attributed the abuse she suffered earlier at the hands of another 

soldier to appellant. 

We review claims that an appellant did not receive effective assistance of 

counsel de novo. United States v. Akbar, 74 M.J. 364, 379 (C.A.A.F. 2015); United 

States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012). “In 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 v. Washington, 466 U.S. 668, 687, (1984)). 

As to the first prong, “[w]e do not measure deficiency on the success of a trial 

defense counsel’s strategy, but instead examine whether counsel made an objectively 

reasonable choice in strategy from the available alternatives.” Akbar, 74 M.J. at 379 

(citing United States v. Dewrell, 55 M.J. 131, 136 (C.A.A.F. 2001)) (internal 

quotation marks omitted). The relevant issue is whether counsel’s conduct failed to 

meet an objective standard of reasonableness or whether it was outside the “wide 

range of professionally competent assistance.” Strickland, 466 U.S. at 690. In 

determining this issue, courts “must indulge a strong presumption that counsel’s 

conduct falls within the wide range of reasonable professional assistance[.]” Id. at 

689. 

In assessing whether the presumption of competence had been overcome, we 

apply a three-pronged test: 
STOUT—ARMY 20120592 

12 

(1) Are appellant’s allegations true; if so, “is there a 

reasonable explanation for counsel’s actions?”; 

(2) If the allegations are true, did defense counsel’s level 

of advocacy fall “measurably below the performance . . . 

[ordinarily expected] of fallible lawyers?”; and 

(3) If defense counsel was ineffective, is there a 

“reasonable probability that, absent the errors,” there 

would have been a different result? 

United States v. Grigoruk, 56 M.J. 304, 307 (C.A.A.F. 2002) (citing United States v. 

Polk, 32 M.J. 150, 153 (C.M.A. 1991). 

This case primarily came down to the issue of NL’s credibility. The 

government’s case rested largely on NL’s testimony, corroborated in part by 

appellant’s wife, who witnessed appellant looking at NL in the shower, and 

appellant’s statement to investigators and his wife. Against this backdrop, defense 

counsel were faced with finding some way to raise questions about NL’s credibility. 

Major (MAJ) JK, MAJ AK, and Captain (CPT) MJ, who served as appellant’s 

trial defense counsel each provided affidavits discussing the decision to call Ms. 

Greenwald.9

 MAJ JK summed up the defense’s theory as showing NL “was an 

attention-seeking young lady who exaggerated greatly by taking a small kernel of 

truth and spinning it into a mountain.” Defense arrived at this theory after 

researching numerous motives for NL to fabricate, but found “none were likely to be 

effective or remotely believable.” Ms. Greenwald’s testimony fit the defense theme 

that NL embellished any incidents with appellant in that it showed NL only discussed 

the appellant’s conduct once with Ms. Greenwald, and only revealed limited types of 

conduct. The affidavits from MAJ AK and CPT MJ likewise discuss the decision to 

call Ms. Greenwald to impeach NL by contradiction. 

With the state of the evidence in the record, we find the affidavits submitted 

by trial defense counsel are a reasonable explanation to call Ms. Greenwald to testify. 

We also find counsel’s performance did not fall “measurably below” the performance 

ordinarily expected of lawyers. Some cases, even those based solely on testimonial 

evidence, leave defense few viable options in challenging the credibility of a victim. 

This case was one such case. In the end, the military judge, having heard and 

 

9

 On 5 January 2018, we ordered trial defense counsel to each provide affidavits 

addressing the decision to call Ms. Greenwald and the alleged attempt by an 

individual to unduly influence NL. A fourth defense counsel, CPT JG, provided an 

affidavit which added little to this issue as he was released months before the trial 

on the merits. 
STOUT—ARMY 20120592 

13 

observed NL, found her testimony sufficiently compelling to find appellant guilty of 

many of the alleged offenses. 

For certain, calling Ms. Greenwald presented some risk to the defense. 

However, appellant’s counsel were tasked with trying to attack NL’s credibility. Ms. 

Greenwald confirmed part of NL’s testimony, but contradicted other parts. The 

contradictions were consistent with the defense’s theory of the case. In retrospect, it 

may be that Ms. Greenwald’s testimony did more harm than good, but that was the 

risk. Defense counsel had to play the cards they were dealt. “A fair assessment of 

attorney performance requires that every effort be made to eliminate the distorting 

effects of hindsight, to reconstruct the circumstances of counsel’s challenged 

conduct, and to evaluate the conduct from counsel's perspective at the time.” Akbar, 

74 M.J. at 30 (quoting Strickland, 466 U.S. 689). Despite the outcome at trial, 

defense counsel, at the time of trial, took a calculated–and in our view, reasoned–risk 

in calling Ms. Greenwald to the stand. Under the circumstances of this case, 

appellant has failed to overcome the presumption that his counsel acted competently 

in calling Ms. Greenwald. 

Even if we did find counsel was deficient in calling Ms. Greenwald, we do not 

believe there is a reasonable probability that the outcome of the case would have 

been different had she not been called. First, while Ms. Greenwald relayed NL’s 

statement that appellant was making her uncomfortable, the only specific acts shared 

involved appellant wrestling NL and watching NL in the shower. Her testimony did 

not corroborate NL’s testimony as to much of the other charged conduct. Second, 

Ms. Greenwald did not personally witness these events and, essentially, reiterated in 

part what NL said in her testimony. Third, the disclosures to Ms. Greenwald were 

not immediate, but occurred well after the alleged misconduct. That is, her testimony 

did not have the same impact as would an excited utterance by NL or a similar 

disclosure close to the events. In short, Ms. Greenwald provided nothing new in 

terms of specific acts committed by appellant. Finally, as we otherwise find no 

prejudice, we need not address whether Mr. Greenwald’s statements were separately 

admissible by the government as a prior consistent statement. 

 

2. Failure to Investigate Suspicions that NL’s Testimony was Unduly 

Influenced 

Appellant’s claim that his counsel “failed to pursue evidence that NL’s 

testimony was unduly influenced” is based upon an affidavit from Ms. Heidi Shann, 

who testified for the defense during sentencing. 

In the affidavit, Ms. Shann stated as she was waiting to testify at appellant’s 

trial she observed NL in a “heated discussion with a woman.” She had seen the 

woman at the trial and she was “following [NL] like a mother would follow a child.” 

According to Ms. Shann, the woman appeared angry and frustrated at NL and was 
STOUT—ARMY 20120592 

14 

shouting at her. The woman said something to NL to the effect of “after everything I 

did for you, you had to go and do this.” Another defense sentencing witness, Ms. 

Candida Langford, also observed the conversation. The conversation concerned Ms. 

Shann since “it seemed that this woman had been coaching NL.” Ms. Shann states 

she and the other witness informed appellant’s defense counsel about their concerns 

and observations. 

 Ms. Shann’s affidavit provides no more than speculative and conclusory 

observations that an argument between NL and another person must have been the 

product of witness coaching. Ms. Shann’s observations were made several days after 

NL testified on the merits. The affidavit provides no information as to how NL was 

supposedly coached or how NL supposedly altered her testimony based upon the 

alleged coaching. Indeed, even if we were to accept the speculative inference 

contained in the affidavit, we would have to infer that NL had not testified as she had 

been coached. That is, we would have to infer the woman appeared angry since NL 

testified contrary to how she was instructed. 

We do not find appellant overcomes the presumption of competence of his 

defense counsel based upon this affidavit. For the same reason, we see no need to 

order an evidentiary hearing to decide this issue. See United States v. Ginn, 47 M.J. 

236, 248 (C.A.A.F. 1997) (“[I]f the affidavit does not set forth specific facts but 

consists instead of speculative or conclusory observations, the claim may be rejected 

on that basis.”). Accordingly, we find appellant’s claim on this issue lacks merit. 

E. Improper Sentencing Argument 

Appellant alleges that the government’s sentencing argument improperly 

attacked appellant’s rights to remain silent and plea of not guilty, which resulted in 

the military judge imposing a higher sentence. 

In his unsworn statement, appellant did not mention the findings of guilty and 

his sole comment about NL was “I wish no ill will to my daughter, my ex-wife and I 

hope they can live some kind of prosperous life no matter what happens to me 

today.” 

During argument, trial counsel, without objection from defense counsel, 

commented six times on appellant’s failure to apologize to NL in his unsworn 

statement. Trial counsel referred to appellant: as an “unapologetic sexual abuser” 

who “can’t even say [he’s] sorry;” as somebody who “still hasn’t taken 

responsibility[] [and] still hasn’t apologized” and “never took responsibility when 

he took the stand;” and as somebody who “spent 2 years in jail and is still so selfish 

that he has not recognized what he did to [NL] . . . .” Trial counsel added 

“ultimately, this case is about punishment, retribution. It’s about punishing 

someone for ruining their child’s life and never apologizing for it.” 
STOUT—ARMY 20120592 

15 

“Improper argument involves a question of law that [we] review[ ] de novo.” 

United States v. Frey, 73 M.J. 245, 248 (C.A.A.F. 2014). As a threshold matter, 

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

Rule for Court-Martial 1001(g) provides a defense counsel’s “[f]ailure to object to 

improper argument before the military judge begins to instruct the members on 

sentencing shall constitute waiver of the objection.” Similar to R.C.M. 919(c), 

which governs argument on findings, R.C.M. 1001(g) is unambiguous and has no 

“plain error” condition. As such, appellant waived any objections to the 

government’s sentencing argument. See United States v. Kelly, 76 M.J. 793 (Army 

Ct. Crim. App. 2017); United States v. Ahern, 76 M.J. 194 (C.A.A.F. 2017) 

(analyzing the waiver provision of Mil. R. Evid. 304). 

Although we established in Kelly a binding precedent for this court that a 

plain error analysis was not appropriate in analyzing unpreserved error to argument, 

we recognize our superior court has granted review in that case on that very issue. 

United States v. Kelly, No. 17-0559/AR (C.A.A.F. 20 Dec. 2017) (order). 

Accordingly, as we recently did in United States v. Koch, we will nonetheless review 

this case for plain error as a matter of judicial economy. ARMY 20160107, 2018 

CCA LEXIS 34, *11 (Army Ct. Crim. App. 29 Jan. 2018) (citing United States v. 

Motsenbocker, No. 201600285, 2017 CCA LEXIS 651, *7 (N.M. Ct. Crim. App. 17

Oct. 2017), in noting our sister service applied a plain error analysis to unpreserved 

objections to argument). 

To establish plain error, appellant must prove (1) there was error, (2) it was 

plain or obvious, and (3) the error resulted in material prejudice. United States v. 

Flores, 69 M.J. 366, 369 (C.A.A.F. 2011). Where improper sentencing argument 

occurs, we must determine whether we can be confident that the appellant was 

sentenced on the basis of the evidence alone. United States v. Halpin, 71 M.J. 477, 

480 (C.A.A.F. 2013). 

Argument by trial counsel concerning an accused’s right to remain silent is 

“beyond the bounds of fair comment.” United States v. Paxton, 64 M.J. 484, 487 

(C.A.A.F. 2007) (citation omitted). However, an accused’s refusal to admit guilt or 

accept responsibility may be an appropriate factor for the military judge or 

members’ consideration in their sentencing deliberation on rehabilitation potential. 

United States v. Means, 2017 CCA LEXIS 330, *6-*7 (A.F. Ct. Crim. App. 12 May 

2017 2017) (citing United States v. Garren, 53 M.J. 142, 144 (C.A.A.F. 2000); 

United States v. Edwards, 35 M.J. 351, 355 (C.M.A. 1992)). “As a general rule, the 

predicate foundation is that an accused has either testified or has made an unsworn 

statement and has either expressed no remorse or his expression of remorse can be 

arguably construed as being shallow, artificial, or contrived.” Id. (quoting Edwards, 

35 M.J. at 355). “Other evidence in the record may also give rise to the inference 

that an accused is not remorseful, but the inference may not be drawn from his 
STOUT—ARMY 20120592 

16 

decision not to testify or from his pleas of not guilty.” Paxton, 64 M.J. at 487 (citing 

Edwards, 35 M.J. at 355). 

We do not find error, much less plain error, in the government’s argument 

stressing appellant’s failure to apologize to NL. His shallow “wish of no ill will” 

comment towards NL was clearly not an expression of remorse and could be 

considered a veiled reference to his disagreement over her testimony and 

accusations. During his unsworn statement, appellant introduced evidence of his 

prior confinement and the adverse effects of his time in jail before the rehearing. In 

the context of the entire case, trial counsel’s comments concerning appellant’s 

failure to apologize and his time in jail were not improper, but rather a fair comment 

on appellant’s unsworn statement and a reflection of appellant’s lack of 

rehabilitative potential. 

However, even if error, we do not find it prejudiced a substantial right of the 

appellant in this judge alone trial. To the degree counsel’s comments may be found 

improper, we are convinced that the military judge was not unduly swayed by trial 

counsel’s comments in the sentencing argument. Considering the record as a whole, 

and the relative weight of the parties’ sentencing cases, we are confident that 

appellant was sentenced on the basis of the evidence alone. 

CONCLUSION 

The court affirms only so much of the finding of guilty of Specification 5 of 

Charge 1 as finds that the appellant: 

did, at or near Watertown, New York, between on or about 7 August 

2008 and on or about 3 June 2009, engage in indecent conduct in the 

physical presence of his step-daughter [NL] a child under 16 years of 

age, by entering the bathroom where [NL] was showering, opening the 

shower curtain, looking at her naked body, and watching her shower, 

with intent to arouse the sexual desire of the accused. 

The remaining findings of guilty are AFFIRMED. 

Reassessing the sentence on the basis of the errors noted, we are confident the 

military judge would have sentenced appellant to at least a dishonorable discharge, 

confinement for eighteen years, and a reduction to the grade of E-1. See United 

States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2014); United States v. Sales, 

22 M.J. 305, 307-08 (C.M.A. 1986); MCM, pt. IV, ¶ 10.e(1), (2)(a)-(b); Rule for 

Courts-Martial 1003(d)(3). The sentence is therefore AFFIRMED. All rights, 

privileges, and property, of which appellant has been deprived by virtue of that 

portion of the findings set aside by this decision, are ordered restored. 

 
STOUT—ARMY 20120592 

17 

Senior Judge MULLIGAN and Judge WOLFE concur. 

FOR THE COURT: 

JOHN P. TAITT 

Chief Deputy Clerk of Court 

FOR THE COURT: