## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, FEBBO, and WOLFE Appellate Military Judges

UNITED STATES, Appellee

v. Staff Sergeant N ORMAN R. STOUT United States Army, Appellant

ARMY 20120592

Headquarters, Fort Drum S. Charles Neill, Military Judge

Colonel Steven C. Henric ks, Staff Judge Advocate

For Appellant: Colonel Mary J. B radley, JA; Major Christopher D. Coleman, JA; Captain Timothy G. Burr oughs, JA (on brief); Colonel Mary J. Br adley, JA; Major Patrick J. Scudieri, JA; Capta in Timothy G. Burroughs, JA (on r eply brief).

For Appellee: Lieutenant Colon el A.G. Courie III, JA; Major Me lissa Dasgupta Smith, JA; Captain Jennifer A. Donahue, JA (on brief).

9 April 2018

---------------------------------- MEMORANDUM OPINION

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

This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

FEBBO, Judge:

As this case demonstrates, successfully challenging an appella nt’s guilty plea on appeal can carry significant r isk, especially w hen charges c onditionally dismissed as part of a pretrial agreement ( PTA) reemerge at a rehearing a nd serve to increase the appellant’s pu nitive exposure.

In 2012, appellant, b efore a military judg e sitting a s a genera l court-martial, pleaded guilty pursuan t to a PTA to one sp ecification of abusiv e sexual contact with a child, one specifica tion of indecent liberties with a child, and one speci fication of possession of child pornograph y in violation of A rticles 120 an d 134, Uniform Code of Military Justice [UCMJ], 10 U.S.C. §§ 920 an d 934 (2006 & Su pp. I 2008). In accordance with the PTA, the mil itary judge cond itionally dismi ssed nine other specifications, which would ripen into dismissal with prejudice upon appellateSTOUT—ARMY 20120592

2 review. On appeal, we granted ap pellant’s sole assignment of e rror that his pleas were improvident, set aside the findings an d sentence, and auth orized a rehearing.

United States v. Stout , 2014 CCA LEXIS 469 (Army Ct. Crim. A pp. 25 Jul. 2014) (mem. op.).

As we explain in further detail below, appellant was not convic ted at the rehearing of any offense to whi ch he pleaded guilty at the firs t trial. 1 Instead, this

case is before us for review u nder 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 ap ply to these o ffenses, the convening authority was able to approve the adjudged sentence that, in terms of con finement, was more than twice as long a s that adjudged base d on appellant’s initia l guilty plea. 2, 3

We conclude appellant ’s PTA was cancelled and void once this co urt set aside his improvident guilt y plea, thus pl acing appellan t and the gov ernment in the same position they were at t he start of the first trial. Of the rem aining issues raised, we

find one warrants reli ef, although for a reas on other t han pose d by appellant. We have also considered the matters personally asserted by appella nt 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 th e abusive sexual contact charge after arraignment, granted defense counsel’s motio n under R.C.M. 917 for a finding of not guilty as to the indecent liberties charge, and found ap pellant no t guilty o f 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 d ishonorable discha rge and confin ement for 115 years.

3 Despite the outcome at the rehe aring, appellant did not compla in on this appeal that he received deficient advice rega rding the risks of appealing t he providence of his guilty plea or the ris ks of entering a plea of not guilty at th e rehearing. We note appellant, during his unsworn statement at the retrial, comment ed “I threw the guilty plea.” Out of cauti on, we invited appellant if he wanted addit ional time to file supplemental assignments of erro r. Appellant d eclined our invi tation.

4 Appellant’s Article 13, UCMJ, c laim warrants comment. After t his court set aside the findings and sentence of the first trial, appellant was pai d as an E-1 instead of as an E-6. At his rehearing, the m ilitary judge found this pay di screpancy was not as punishment, but the function of a Defense Finance and Accountin g Service policy and that agency’s inte rpretation of their s tatutory authority t o 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 statio ned at Fort Drum, New York, while his famil y lived in Michigan. Appella nt’s family moved to Wa tertown, New York, and joined him in August 2008. Appellant , his wife, and her two children lived t ogether in Watertown from August 2008 un til June 2009.

At the time they lived together, appellant’s stepdaughter, NL, was between 14 and 15 years old. Since NL was matur ing physically, appellant’ s wife asked appellant to give NL a “sex talk.” Appellan t used these “sex t alks” as a means to perform multiple sexu al acts on his stepda ughter, to include: p lacing NL’s hand on his genitalia; touching her brea sts, and touchin g her genitalia ; licking NL’s vagina; and watching pornograph y with NL sitting on h is lap while he ha d an erection.

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

occurred around once a week in the morni ng when appellant did n ot have duty or physical fitness training.

On one occasion, appel lant’s wife observe d appellant standing o utside the

shower while NL was ba thing. Appellant’s wife thought it was i nappropriate for

him to be in the bathroom while their da ughter was showering. However, appellant provided her with what she viewed as a satisfactory explanation for his presence. On another occasion, appellant pulled ope n the curtains and wat ched NL shower. On yet another occasion while NL s howered, appellan t entered the s hower naked, rubbed NL’s naked body, and washed her hair.

Around June 2009, appellant and his famil y temporarily stayed i n a hotel in advance of appellant’s permanent change of station (PCS) from F ort Drum and the family moving back to Michigan. W hile at the hot el room alone, appellant undressed and push ed NL onto a be d. Appellant laid on top of h er while he was

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

In 2010, while appellant was dep loyed to Iraq, N L confided to h er mother that appellant had been se xually abusing her. When his wife confron ted appellant about the allegations over t he phone, appellant stated “he did not do anything she did not want or show her anythi ng she did not want to see.” His wife r eported the allegations of sexual abuse to the state police.

As part of the subsequent invest igation, a U.S. Army Criminal I nvestigation Command (CID) investig ator in Iraq intervie wed appell ant. In h is statement to CID, appellant explained: he discus sed sexual educat ion 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 toget her, NL was “grinding her buttocks into hisSTOUT—ARMY 20120592

4 pelvic area;” he may have inadve rtently touched her breast whil e 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 g etting out of the

shower and saw his er ect penis; he may have laid in bed with NL to talk; and NL saw him watch adult pornography and m ay have observed him with an e rection. Appellant admitted he had dreams about sexu al encounters with N L that may have included having inter course with her.

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

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

home located on a fa rm in Michigan.

B. Procedural History

At the original trial, appellant entered into a PTA with the co nvening authority (CA) that served to cap any conf inement to ten years, but put no other

limitations on the ad judged sentence the CA could approve. As part of the PTA, the CA agreed to dismiss ni ne other specificati ons, to include abus ive sexual contact with a child, indecent conduct with a chil d, sodomy of a child, and assault with intent to commit rape. 5 This dismissal was without p rejudice, to ripen into with prejudice upon appella te review. The PTA p rovided the CA could cancel the agreement if the app ellate court found appe llant’s guilty plea to be improvident. During his plea inqui ry, the military judge discussed the terms of the offer for PTA with appellant. Appellant sta ted he understood an d agreed with these terms. Upon acceptance of the app ellant’s plea, the m ilitary judge conditio nally dismissed the remaining specifications in accord ance with the te rms of the PT A.

5 The promulgating orde r for the first tria l, General Court Mart ial Order Number 27, Headquarters, Fort Drum, Fort Drum, New York, dated 27 November 2012, incorrectly reflects a finding of “not guil ty” to: Specificatio ns 1, 2, 4, 6, 7 and 8 of Charge I; the Specification of C harge II and Charge II; the Spe cification of Charge III and Charge III; and Specifica tion 2 of Charg e IV. The appe llant was not acquitted of these charges; the military judge dismissed them i n accordance with the PTA “without prejudice, to ripe n into prejudice upon appellate review.” The Report of Result of Trial prepared in accordance with Rule for Court-M artial 1101(a)

likewise shows these charges were dismis sed. The CA, in taking action on the case, did not change any of the findings of the t rial court or announ ce any action contrary or different than the terms of the PTA. It is, therefore, clea r to us from the record that the promulgating o rder is in error and should properly ref lect these charges as “dismissed without p rejudice, to ripen i nto prejudice upon appe llate review.” We, accordingly, correct that order here.STOUT—ARMY 20120592

5 Following our decisio n, the government ref erred most of the ori ginal charges to a retrial, with some changes. 6 Prior to the trial on th e merits, defe nse counsel

moved to dismiss the cha rges that had been d ismissed at the fir st trial pursuant to the PTA, arguing the dismissal of these charges ripened into dismis sal with prejudice once the case was reviewed on app eal. In denying this motion, the military judge

found that the “fo ur corners of the agree ment” meant dismissal ripened upon completion of appellate review. The militar y judge c oncluded t hat the PTA expressly stated that the agreement could be cancelled if appel lant’s initial guilty plea was found improvident on app eal, a reading th at was also c onsistent with R.C.M. 705 (Pretrial agreements).

Appellant then pleade d not guilty bef ore a militar y judge at th e retrial. The military judge found appellant guilty of three specifications o f abusive sexual contact with a child, two specifications of committing an indec ent act with a child, sodomy with a child, a nd assault with the i ntent to commit rape , in violation of Articles 120, 125 an d 134, UCMJ. This time , appellant’s senten ce included a dishonorable discharge , confinement for ei ghteen years, and red uction to the grade of E-1. The CA approve d the adjudged sente nce and credited app ellant with 779 days towards confinement.

LAW AND DISCUSSION

A. Effect of the PTA from the first trial

Appellant argues that the CA’s a greement under the PTA to dismi ss seven of the specifications “u pon appellate review” was satisfied when h is first trial was

docketed with this court on appeal. 7 We disagree.

“When an appellate issue concerns the meaning and effect of a p retrial agreement, interpretation of t he agreement is a question of law , subject to review

under a de novo s tandard.” 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 “up on appellate revi ew” in the PTA created an ambiguity that must be resolved in appellant’s favor because, e ssentially, that term could be equated with docketing of t he case with this court. T hat is, it c ould be read

6 The convening author ity, upon the advice of the Staff Judge Ad vocate, did not refer one specificatio n, alleging abusive s exual 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 th e retrial). Appellant also asserts

the CA “entered findi ngs of not guilty” as to these specificati ons. 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 comp leted its review of appellant’s guilty ple a. This argument fail s for two reasons.

First, individua l terms of a PTA are n ot read in a vacuum. Bas ic principles of contract law apply whe n interpreting a PTA. United States v. Acevedo , 50 M.J. 169, 172 (C.A.A.F. 1999) (citations om itted). When the terms of an agreement “are unambiguous, the intent of the pa rties is discerned from the fo ur corners of the

contract.” Id. We agree with the military judge when he concluded a plain read ing of appellant’s PTA meant the ch arges would be di smissed upon co mpletion of appellate review. This is the only reasonable reading of the P TA given that the agreement expressly stated the C A may withdraw fro m the agreeme nt if appellant’s plea were determined imp rovident by this court.

Second, appellan t cannot enforce a term of PTA that no longer e xists. The PTA provided that appe llant would plead guilty to several speci fications. Needless to say, at the rehearing, appell ant’s plea of not guilty to all charges violated this agreement. The PTA provided th e CA could withdraw from the agr eement upon a determination by our court that a ppellant’s plea was improviden t. Far from being a unique PTA term, this was simply a restatement of the CA’s auth ority set forth in R.C.M. 705(d)(4)(B) to withdraw from an agreemen t upon an appel late decision finding appellant’s plea improvi dent. Our decisi on setting asi de the findings and authorizing a reheari ng in this case “place[d] the United State s and the a ccused in the same positio n as they were a t the beginning of the original trial.” United States v. Von Bergen , 67 M.J. 290, 294 (C.A.A.F. 200 9) (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 a ll charges and specifications, the proced ure 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 withdrawi ng from the PTA “was to place the parties in t he pretrial status quo ante.” Von Bergen , 67 M.J. at 293. That is, the net effect o f authorizing a r ehearing in thi s case was to place the parties in the position as if the first proceeding never happen ed. 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 co urt found appellant’s guilty plea improvident. The charges and specificati ons were not dismiss ed under the terms o f the PTA. As such, at the rehearing the CA was auth orized to re-refer Specificatio ns 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 ma ke major changes to three of the alleged offenses?

At the new trial and a gain on appeal, appel lant asserts amendme nts made by the government to Specifications 1 and 6 of Charge I and the Sp ecification ofSTOUT—ARMY 20120592

7 Charge II prior to ref erral of charges to th e rehearing constit uted a major charge requiring a new preferral under R.C.M. 603(d). W e disagree.

1. Changes at issue

In 2011, the th ree disputed specificati ons were preferred, alon g with the other charges later heard at the ret rial, and an Artic le 32, UCMJ, in vestigation was completed. NL testifie d at the Article 32 h earing that appella nt sexually abused her when they lived in an apartment at Waterto wn, New York. She co uld not recall the specific dates she lived at the W atertown residence, but stated her mother would

know the dates. At the Article 3 2, UCMJ, hearing, NL’s mother testified they lived

in Watertown betwee n August 2008 and Jun e 2009. In 20 12, the C A referred the three specifications, along with others, to appellant’s initial trial. Howev er, at the first trial, the date ranges on these three charges were not ex panded prior to referral to cover the entire period NL resided in Watertown.

On 4 November 2014, after our reman d, the governme nt amended th e date ranges for these three specifications as follows: Specification 1 of Charge I, alleging abusive sexual contact, from “o n or about 1 Aug ust 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, allegi ng indecent liberties w ith a child, from “on or about 14 January

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

about 3 June 200 9;” and the Specificati on of Charge II, allegin g forcible sodomy,

from “on or about 1 4 February 2009 an d on or about 22 March 200 9” to “on or about 7 August 2008 and on or about 3 June 2009.” On 17 November 201 4, following the pretrial advice and recommenda tion of the Staff Judge Advocate (SJA), the CA referred the charges and specifica tions to a general court-mart ial.

During an Article 39(a), UCMJ, s ession on 30 Ja nuary 2015, appe llant moved to dismiss the amended specifications on the basis that the cha nges were major and required repreferral under R.C.M. 603. The military judge ulti mately denied this motion, reasoning in part that the changes to the dates did not constitute a major change as they did not “add a pa rty, change the offenses, or ad d a substantial matter” not fairly included in the previously-preferred [s]pecification s,” and further, given appellant’s opportunity to prepa re a defense t o the amended cha rges, did not affect a substantial right of t he appellant. The con tested trial on the merits began on 14 September 2015.

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

“Whether a change made to a sp ecification 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 cha rges andSTOUT—ARMY 20120592

8 specifications are an y except those which add a party, offenses , or substantial matter not fairly included in those previously pre ferred, or which are likely to mislead the accused as to the offenses charged.” The government can make m inor changes to a charge and specification before arraignment. R .C.M. 603(b). Major changes, or “[c]hanges or amendment s to charges or specifications other tha n minor changes may not be made over th e objection of the a ccused unless the ch arge or specification affected is preferred anew.” R.C.M. 603(d).

Generally, “change s in the alleged time or date of an offense a re permissible since they normally d o not affect the subst ance of the offense, preclude invocation of the statute of limitations, or mislead the accused as to tha t which he must defend against.” United States v. Longmire , 39 M.J. 536, 53 8 (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 fi nd the military judge erred in finding the changes were minor.

First, the change di d not change th e substance of each offense and the overt

acts remained the same. The all eged conduct, p arties, and loca tion of the offense, remained the same. Second, the change in date ra nge did not af fect a substantial matter not fairly included in the previously preferred charges and specifications. Each of the specifications includ ed “on or about” language and the dates of the alleged sexual abuse were not offe nse-defining. T hird, since t he specifications did

not include “on divers occasions” language , no additional offen ses were alleged by the changes in the date range for the specifications.

We conclude, as did the military j udge, repreferral of these ch arges was not necessary because the changes to t he date ranges w ere minor.

3. Prejudice Analysis for Pre-Referral Amendments

The military judge’s ruling w as 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 superi or court opine d a change is

minor if “no additiona l or different offens e is charg ed . . . a nd if the substantial rights of the defenda nt are not prejudiced.” 42 M.J. 360, 365 (C.A.A.F. 1995) (citations omitted). Our superior court in Reese , overturned the se cond prong of this longstanding test in finding the plain language of R.C.M. 603(d ) does not contemplate prejudice as a cons ideration in determining whether a change is major when the defense obje cts to the change. Reese , 76 M.J. at 301.

However, even in light of Reese , the military judge’s u ltimate conclusion was correct, as the changes to these charges were not major and the pre-referral amendments of the spe cifications for the rehearin g did not prej udice a substantialSTOUT—ARMY 20120592

9 right of the accused. As ou r superior court noted in Reese , a major change effectively deprives a court of jurisdiction to h ear the charge . 76 M.J. at 301-02 (“The practical effect is that if a change is major and the def ense objects, the charge has no legal basis an d the court-martial may not consider it un less and until it is ‘preferred anew,’ and sub sequently referred.”); see R.C.M. 201(b)(3). Reese is distinguishable from t his case in that the c hanges here occurre d prior to r eferral. Normally, Article 59(a), UCMJ, prohibits an appellate court fro m setting aside a finding of guilty without finding prejudice. In Reese , because the offense (once amended) had never been refe rred to trial, the court-martial lack ed jurisdiction, and Article 59(a), UCMJ, did not ap ply. Here, however, as the char ges were amended
prior to referral, we would see no way to avoid the ma ndate of Artic le 59(a), UCMJ. In any event, as we find any cha nges were “minor,” we need not decide the issue definitively.

Unlike the post-referral amendments in Reese that deprived the courtmartial of jurisdiction to hear th e 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, UCM J, investigation. Article 34(c), UCMJ, supports the SJA recommend ing postArticle 32 and pre-referral chang es to charges an d specificatio ns if warranted by the evidence. “If the charges or specifications are not formal ly correct or do not

conform to the substanc e of the evidence co ntained in the repor t of the investigating officer, formal corrections, a nd such changes and in the charges and specifications as are neede d to make them conform to the ev idence, may be made.” UCMJ, art. 34(c).

Appellant was not prej udiced by the p retrial amendments and was on notice of the charges he neede d to defend against. T he changes were made before referral, before arraignment, a nd 10 months before the actual trial dates for the rehearing. The appellant was not misled as to the offe nses charged, did no t request a new Article 32 hearing, or request a bill of particulars. Appellan t was aware from the Article 32 the specific conduct alleged in e ach of these specif ications and the evidence supporting th e allegations, to inc lude NL’s testimony that the sexual abuse occurred when they lived in Water town. In light of the evidenc e adduced at the Article 32 investiga tion, we find appellant’s argument he was m isled unpersuasive. 8

Indeed one of the sub stantial purposes of an Article 32 hearing is to “consider the form of the charges.” The pre-re ferral amendments did not incr ease 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 pretri al 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 th e offenses. The changes did not affect the st atute of limitations and appellant is protected ag ainst double jeopardy.

We conclude, as did t he military judge, th at appellant was not materially prejudiced by th e pre-referral changes to the specifications pr ior to the rehearing.

C. Legal and Factual Sufficie ncy for Indecent Liberties

Appellant asserts that the evidence is legally and factually in sufficient to support the finding that appellant committed indecent liberties on divers occasions by “entering the b athroom where [NL] was showering, opening the shower curtain, looking at her naked body, and watchin g her shower,” as set for th in Specification 5 of Charge I. We disa gree, but nonetheless provide relief on a separate basis.

NL testified appellant w atched her shower a few times, but coul d “only remember about three times” speci fically. First, on one instan ce, appellant entered

the shower naked and touched her eve rywhere to inc lude her vagi na and breasts. On

a second occasio n, appellant swung open the show er curtains and looked at NL while she was showering, c onduct covered by Speci fication 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 i ncident was not within the charged locations or

timeframes and was not reflec ted on the charge sheet.

We view the issue here as one i nvolving an unreas onable multipl ication of charges. Appellant was charged w ith two shower incidents invol ving NL, both occurring in Waterto wn, and the evidence adduced at trial only supported two charged incidents, wi th one, covered by S pecification 6 of Char ge I, involving additional conduct by a ppellant. However, the “divers” languag e in Specification 5 of Charge I, as it all eges much of the sam e conduct, would oper ate to hold a ppellant liable for substantially the same conduct in two different spec ifications. Accordingly, we grant relief in ou r decretal paragraph by dismi ssing the language “on divers occasions” from Sp ecification 5 of Charge I. See United States v. Quiroz

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

D. Ineffective As sistance of Counsel

Appellant asserts that his defense counsel was ineffective for calling a witness, Ms. Tiffani Greenwald, w ho bolstered the government’s case, and by failing to pursue evidence t hat NL’s testimony may have been unduly inf luenced by a Victim Witness Liaison, Ms. JA. We disagree.

1. Ms. Greenwald’s Testimony

At trial, NL testified that she spoke to her clo se friend and n eighbor in Michigan, Ms. Greenwa ld, on numerous occas ions and to ld her “ab out 90 percent ofSTOUT—ARMY 20120592

11 what happened” with appellant. I n response, defense counsel ca lled Ms. Greenwald to testify for the defense on f indings. Her tes timony consiste d of 5 pages of the 631 page transcript. Ms. Greenwald testified that NL had called he r only once from New York. NL was upset and said that appellant w as touching her in inappropriate places. NL did not discuss sp ecifics of where appe llant was touching he r. NL described wrestling with appellant, which m ade her feel uncomfortable. N L also mentioned appellant watched her as she showered. That is, Ms. Greenwald c ontradicted NL on the number of times they talked a nd the specificity of the alle ged abuse. However, Ms. Greenwald’s testimony was gene rally consistent with NL’s re port of being

abused.

In closing argument, defense couns el put forward a theme that N L embellished the wrestling and incident in the shower because she didn’t wan t to leave a farm in Michigan, where she li ved with her mother a nd siblings, and mov e back with appellant. Defense co unsel highlighted NL’ s testimony she told Ms. Greenwald “90 percent” of what happened, and this am ounted to wrestling and l ooking at NL in the

shower. While concedi ng wrestling and teachi ng NL self-defense involved touching, defense counsel argue d appellant had no im proper purpose in tou ching NL. Rather, NL’s story that the conduct was a busive came forth upon learnin g the family would be leaving Mich igan and moving back with a ppellant. Added to t his theme, counsel argued that NL attributed the abuse she suffered earlier at the hands of another soldier to appellant.

We review claims that an appella nt did not receive effective as sistance 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 t o prevail on a claim

of ineffective assist ance of counsel, an ap pellant must demonst rate both (1) that his counsel’s performance was deficient, and (2) that this deficien cy resulted in prejudice.” United States v. Green , 68 M.J. 360, 3 61-62 (C.A.A.F . 2010) (citing Strickland v. Washington , 466 U.S. 668, 687, (1984)).

As to the first prong , “[w]e do not measu re deficiency on the s uccess of a trial

defense counsel’s strat egy, but instea d 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 is sue is whether couns el’s conduct failed to meet an objective sta ndard of reasonablene ss or whether it was outside the “wide range of professionally c ompetent ass istance.” Strickland , 466 U.S. at 690. In determining this issue, courts “must indulg e a strong presumpti on that counsel’s

conduct falls within t he wide range of reas onable professional assistance[.]” Id. at

689.

In assessing whether t he presumption of com petence had been ove rcome, we apply a three-pronged test:STOUT—ARMY 20120592

12 (1) Are appellant’s allegations true; if so, “is there a reasonable expla nation for counsel’s actions?”;

(2) If the allegations are true, did defense counsel’s level of advocacy fall “measurably b elow the performance . . . [ordinarily expected] of fallible lawyers?”; and

(3) If defense coun sel was ineffective, is there a “reasonable probability that, absent the erro rs,” there

would have been a different result?

United States v. Grigoruk , 56 M.J. 304, 30 7 (C.A.A.F. 2002) (citing United States v.

Polk , 32 M.J. 15 0, 153 (C.M.A. 1991).

This case primarily came down to the issue of NL’ s credibility. The government’s case res ted largely on NL’s testimony, corroborate d 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 t his backdrop, defense

counsel were faced w ith finding some way t o raise questions abo ut NL’s cred ibility.

Major (MAJ) JK, MAJ AK, and Cap tain (CPT) MJ, who served as app ellant’s trial defense counsel each provi ded affidavits d iscussing the d ecision to call Ms.

Greenwald. 9 MAJ JK summed up the defense’s theory as showing NL “was an attention-seeking you ng lady who exaggerate d greatly by taking a small kernel of truth and spinning it into a mountain.” Def ense arrived at thi s theory after researching numerous motives for NL to fabricate , but found “no ne were likely to be

effective or remotel y believable.” Ms. Greenwald ’s testimony f it the defense theme

that NL embellished an y incidents with appellant in that it sho wed NL only discussed the appellant’s conduc t once with Ms. Green wald, and only revea led limited types of

conduct. The affidavi ts from MAJ AK and CPT MJ likewise discus s the decision to call Ms. Greenwald to impea ch NL by contradiction.

With the state of the evidence i n the record, we find the affid avits submitted by trial defense couns el are a reasonable explanation to call M s. Greenwald to testify. We also find counsel’s performanc e did not fall “measurably bel ow” the performance ordinarily expected of lawyers. Some cases, even those based solely on tes timonial evidence, leave defense few viable options in challenging the c redibility of a victim.

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

9 On 5 January 2018, we o rdered trial defense counsel to each pr ovide affidavits addressing the decision to call Ms. Greenwald and the alleged a ttempt by an individual to unduly influence NL. A fourt h defense counsel, C PT JG, provided an

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

on the merits.STOUT—ARMY 20120592

13 observed NL, fou nd her testimony sufficiently compelling to fin d appellant guilty of many of the allege d offenses.

For certain, calling Ms. Greenwa ld presented some risk to the d efense. However, appellant’s c ounsel were tasked wit h trying to attack NL’s credibility. Ms. Greenwald confirmed part of NL’ s testimony, but c ontradicted ot her parts. The

contradictions were consistent w ith the defense’ s theory of the case. In retrospect, it may be that Ms. Greenwald’s tes timony did more harm than good, but that was the

risk. Defense counsel had to play the card s they were dealt. “A fair assessment of attorney performance requires th at every effort be made to elim inate the distorting effects of hindsight, to reconstruct the circumstances of couns el’s challenged conduct, and to evaluate the con duct 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 t he time of trial, too k 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 couns el acted competently in calling Ms. G reenwald.

Even if we did find counsel was de ficient in calling Ms. Greenw ald, we do not

believe there is a r easonable probability t hat the outcome of t he case would have

been different had she not been call ed. First, while Ms. Green wald relayed NL’s statement that appella nt was making her unc omfortable, 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 o ther charged conduct. Second, Ms. Greenwald did not p ersonally witness these events and, esse ntially, reiterated in part what NL said in her testim ony. Third, the di sclosures to Ms. Greenwald were not immediate, but oc curred well after th e alleged misconduct. That is, her testimony did not have the same impact as would an excited utterance by N L or a similar

disclosure close to the events . In short, Ms. G reenwald provid ed nothing new in terms of specific acts committed by appellant. F inally, as we otherwise find no prejudice, we need not address wh ether Mr. Greenwald’s statemen ts were separately admissible by the government as a prior c onsistent statement.

2. Failure to Investigat e Suspicions that NL’s Testimony was Unduly Influenced

Appellant’s claim that his couns el “failed to pursue evidence t hat NL’s testimony was unduly influenced” is based upon an affidavit fro m Ms. Heidi Shann, who testified for the defense during sentencing.

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

trial she observed NL in a “h eated discussion with a woman.” S he had seen the

woman at the trial an d she was “following [ NL] like a mother wo uld follow a child.” According to Ms. Sha nn, the woman appeared angry and frustrated at NL and wasSTOUT—ARMY 20120592

14 shouting at her. The woman sai d something to NL to the effect of “after everything I did for you, you had t o go and do this.” Anot her defense sente ncing witness, Ms. Candida Langford, also observed t he conversation. The conversa tion concerned Ms.

Shann since “it seem ed that this woman ha d been coaching NL.” Ms. Shann states she and the other witness informed appellant’s defense counsel about their concerns

and observ ations.

Ms. Shann’s affidav it provides no m ore than speculative and co nclusory observations that an argument be tween NL and ano ther person mus t have been the product of witness co aching. Ms. Shann’s observations were mad e several days after

NL testified on the mer its. The affidavit provides no informat ion as to how NL was supposedly coached or how NL s upposedly altered her testimony b ased upon the alleged coaching. Indeed, ev en if we were to accept the specul ative inference contained in the affidavit, we w ould have to infer that NL had not testified as she had been coached. That is, we would h ave to infer the woman appear ed angry since NL testified contrary to ho w she was instructed.

We do not find appellant overcomes the presumption of competenc e of his

defense counsel base d 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 affidavi t does not set fort h specific facts but consists instead of sp eculative or co nclusory observ ations, the claim may be rejected

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

E. Improper Sentencing Argument

Appellant alleges that the government’s se ntencing argument imp roperly attacked appellant’s rights to remain silent and plea of not gu ilty, which resulted in the military judge imposing a highe r sentence.

In his unsworn statement, appella nt did not mention the finding s of guilty and

his sole comment about NL was “I wish no ill will to my daughte r, my ex-wife and I hope they can live so me kind of prosperous life no matter what happens to me today.”

During argument, trial counsel, without objecti on from defense counsel,

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

statement. Trial counsel referr ed to appellant: as an “unapolo getic sexual abuser” who “can’t even say [he’s] sorr y;” as somebody who “still hasn ’t taken responsibility[] [and] still hasn’t apologi zed” and “never too k responsibility when he took the stand;” and as somebody who “spe nt 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 punishme nt, retribution. It’s about punishing someone for ruining their child’ s life and never apologizing fo r it.”STOUT—ARMY 20120592

15 “Improper argument invo lves a question of l aw 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 tria l counsel’s sentenc ing argument at trial. Rule for Court-Martial 1001(g) provides a defens e counsel’s “[f ]ailure to object to improper argument befo re the militar y judge begins to instruct the members on sentencing shall constitute waive r of the objection.” Similar to R.C.M. 919(c), which governs argument on findings, R.C.M. 1001(g) is unambiguo us and has no “plain error” conditi on. As such, appellant waived any objecti ons to the government’s senten cing 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 wai ver provision of Mi l. R. Evid. 304).

Although we established in Kelly a binding precedent for this court that a plain error analysis was not app ropriate in anal yzing unpreserv ed error to argument, we recognize our superior court has granted revie w in that case on that very issue. United States v. Kelly , No. 17-0559/A R (C.A.A.F. 20 Dec . 2017) (o rder). 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. ARM Y 20160107, 2018 CCA LEXIS 34, *11 (Army Ct. Crim . App. 29 Jan. 20 18) (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 ap plied a plain error analysis to unpreserved objections to argument).

To establish plain erro r, appellant must pr ove (1) there was er ror, (2) it was plain or obvious, and (3) the error resulted in material prejud ice. United States v.

Flores , 69 M.J. 366, 369 (C.A .A.F. 2011). Where i mproper sentencing argument occurs, we must determine whethe r we can be confi dent 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 concern ing an accused’ s right to rema in silent is “beyond the bounds of fair comment.” United States v. Paxton , 64 M.J. 484, 487 (C.A.A.F. 2007) (cit ation omitted). However, an accused’s refusal to admit guilt or accept responsibility may be an a ppropriate factor for the mili tary judge or

members’ consideration in their sentencing deli beration on reha bilitation potential.

United States v. Means , 2017 CCA LEXIS 330, * 6-*7 (A.F. Ct. C rim. 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 g eneral rule, the predicate foundation is that an accused has either testified or has made an unsworn statement and has either express ed no remorse or his expression of remorse can be arguably construed as b eing shallow, artific ial, or contrived.” Id. (quoting Edwards

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

that an accused is not remorseful , but the infere nce may not be drawn from hisSTOUT—ARMY 20120592

16 decision not to te stify or from his pl eas of not guilty.” Paxton , 64 M.J. at 487 (citing

Edwards , 35 M.J. at 355).

We do not find error, mu ch 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 no t an expression of remorse and could be

considered a veiled reference to his disagreement over her test imony and accusations. During hi s unsworn statement, appellant introduce d evidence of his prior confinement and t he adverse effects of his time in jail b efore the rehe aring. In the context of the entire case, trial counsel’s comments concer ning appellant’s failure to apologize and his time in jail were not improper, bu t rather a fair comment on appellant’s unsworn statement and a refl ection of appellant’ s lack of rehabilitative potential.

However, even if error, we do not find it prejudiced a substant ial right of the appellant in this judge alone trial. To the degree counsel’s c omments may be found improper, we are convi nced that the milita ry judge was not undu ly swayed by trial

counsel’s comments in the sente ncing argument. Considering the record as a whole, and the relative weight of the parties’ sentencing cases, we ar e confident that appellant was sentenced on the basis of the evidence alone.

CONCLUSION

The court affirms onl y so much of the findi ng of guilty of Spec ification 5 of Charge 1 as finds th at the appellant:

did, at or near Watertown, New Y ork, between on o r about 7 Augu st
2008 and on or about 3 J une 2009, engage in i ndecent conduct in the physical presence of his step-da ughter [NL] a c hild under 16 ye ars of age, by entering the b athroom where [NL] wa s showering, opening the shower curtain, looking at her n aked body, and w atching her sho wer, with intent to arous e the sexual desire of the accused.

The remaining findings of guilty are AFFIRMED.

Reassessing the sentence on the basis of the errors noted, we a re confident the military judge would have sentenced appellant to at least a dis honorable 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 se ntence is therefore AFFIRMED. All rights, privileges, and prope rty, of which appella nt has been deprived by virtue of that portion of the findings set aside by this d ecision, are ordered restored.STOUT—ARMY 20120592

17 Senior Judge MULLIGAN an d Judge WOLFE concur.

FOR THE COURT:

JOHN P. TAITT Chief Deputy Clerk of Court FOR THE COURT: