BREWER – ARMY 20040625

UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before

GALLUP, ZOLPER, and MAGGS*

Appellate Military Judges

**UNITED STATES, Appellee**

v.

**Staff Sergeant DANIEL W. BREWER**

 United States Army, Appellant

ARMY 20040625

Headquarters, Fort Stewart

Gary W. Smith, Military Judge 

Lieutenant Colonel Charles S. Walters, Staff Judge Advocate 

For Appellant:  Major Fansu Ku, JA; Mary Hall, Esquire (on brief). 

For Appellee:  Colonel John W. Miller, JA; Major Elizabeth G. Marotta, JA; Captain Michael C. Friess, JA; Captain Mark E. Goodson, JA (on brief).

28 August 2008

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SUMMARY DISPOSITION

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Per Curiam:

A panel composed of officer and enlisted members sitting as a general court-martial convicted appellant, contrary to his pleas, of attempted sodomy with a child under the age of 16 years, sodomy with a child under the age of 16 years (three specifications), and indecent acts with a child under the age of 16 years (eight specifications), in violation of Articles 80, 125, and 134 of the Uniform Code of Military Justice, 10 U.S.C. § 880, 925 and 934 [hereinafter UCMJ].  The panel sentenced appellant to a dishonorable discharge, confinement for 30 years, forfeiture of all pay and allowances, and reduction to Private E1.  The convening authority approved the sentence. This case is before the court for review under Article 66, UCMJ. 

All of the charges and specifications in this case relate to appellant’s sexual abuse of his two natural daughters, MB and AB, over the course of five years.  At the time of appellant’s misconduct, MB and AB were between the ages of 9 and 13 and 7 and 11, respectively.  

* Judge MAGGS took final action in this case while on active duty.

Appellant asserts, *inter alia*, the evidence is factually and legally insufficient to support portions of multiple specifications.  The government agrees that several specifications or portions therein are not supported by the record.  Based upon the government’s concessions and our independent review of the evidence, we set aside two specifications, amend five specifications, and affirm the approved sentence.

The government concedes there is insufficient evidence to support Specifications 1 and 3 of Charge IV (indecent acts); we agree, and therefore, set aside both specifications.  

With respect to Specification 2 of Charge IV (indecent acts), the government admits the record failed to establish appellant touched AB on her thigh with his penis on more then one occasion.  We agree.  Furthermore, appellant did not admit, and AB did not testify, that he touched AB’s breasts.  Consequently, that portion of the specification is also insufficient.  The remainder of the specification, however, is both factually and legally sufficient.  The court, therefore, finds appellant committed indecent acts by touching AB’s buttocks and vagina with his hands on divers occasions and touched AB on her thigh with his penis on one occasion (not divers), at Lake City, Missouri from on or about 1 July 1999 to on or about 31 October 2001.  As such, the Specification 2 of Charge IV is amended with exceptions and substitutions, as follows:

Specification 2:  In that Staff Sergeant Daniel W. Brewer, U.S. Army, did, at or near Lake City, Missouri, between on or about 1 July 1999, and on or about 31 October 2001, on divers occasions, commit an indecent act upon the body of AB, a female under the age of 16, not the wife of Staff Sergeant Daniel W. Brewer, by touching her with his hands on her vagina and buttocks, and by touching AB on her thigh with his penis on one occasion, with intent to gratify his sexual desires.

Similarly, with respect to Specification 4 of Charge IV (indecent acts), the government concedes and the court finds there is no evidence to support the finding that appellant kissed AB on the mouth and touched her with his penis at or near Ludowici, GA, between on or about 1 November 2001, and on or about 31 May 2002.  In addition, the evidence presented at trial does not support a finding that appellant touched AB’s breasts or buttocks during this time frame.  As such, Specification 4 of Charge IV is amended with exceptions, as follows:

Specification 4:  In that Staff Sergeant Daniel W. Brewer, U.S. Army, did, at or near Ludowici, Georgia, between on or about 1 November 2001, and on or about 31 May 2002, on divers occasions, commit an indecent act upon the body of AB, a female under the age of 16, not the wife of Staff Sergeant Daniel W. Brewer, by touching her with his hands on her vagina with intent to gratify his sexual desires.

Specification 5 of Charge IV (indecent acts) also includes misconduct not supported by the record.  Appellant argues, and the government agrees, the evidence only supports the portion of the specification that alleged appellant touched MB with his hands on her buttocks on one occasion at or near Camp Oliver, GA between on or about 1 May 2002 and or about 14 August 2003.  We agree with the appellant’s analysis.  As such, the Specification is amended with exceptions and substitutions as follows:

Specification 5:  In that Staff Sergeant Daniel W. Brewer, U.S. Army, did, at or near Camp Oliver, Georgia, between on or about 1 May 2002 and on or about 14 August 2003, commit an indecent act upon the body of MB, a female under the age of 16, not the wife of Staff Sergeant Daniel W. Brewer, by touching her with his hands on her buttocks with intent to gratify his sexual desires.  

With respect to Specification 7 of Charge IV (indecent acts), the government concedes and the court finds there is no evidence appellant kissed MB on the mouth and breasts, at or near Ft. Stewart, GA, between on or about 15 August 2003 and on or about 23 October 2003.  There is only evidence that during this time, appellant touched MB, with his hands on her breasts, vagina, and buttocks; and touched her with his penis on her mouth.  As such, the Specification is amended with exceptions and substitutions as follows:

Specification 7:  In that Staff Sergeant Daniel W. Brewer, U.S. Army, did, at or near Ft. Stewart, Georgia, between on or about 15 August 2003 and on or about 23 October 2003, commit an indecent act upon the body of M.B., a female under the age of 16, not the wife of Staff Sergeant Daniel W. Brewer, by touching her with his hands on her breasts, vagina, and buttocks; and touching her with his penis on her mouth with intent to gratify his sexual desires.  

Similarly, there is no evidence appellant kissed AB on the mouth and breasts as alleged in Specification 8 of Charge IV (indecent acts).  Again, the government concedes the specification is not supported by the record.  We concur and find there is only evidence that appellant touched AB with his hands on her breasts, vagina, and buttocks.  As such, the Specification is amended with exceptions and substitutions as follows:

Specification 8:  In that Staff Sergeant Daniel W. Brewer, U.S. Army, did, at or near Ft. Stewart, Georgia, between on or about 15 August 2003 and on or about 23 October 2003, on divers occasions, commit an indecent act upon the body of AB, a female under the age of 16, not the wife of Staff Sergeant Daniel W. Brewer, by touching AB with his hands on her breasts, vagina, and buttocks with intent to gratify his sexual desires.  

Based on the record as a whole we conclude that the remaining evidence presented by the government was factually sufficient to support the panel’s verdict and we are convinced of appellant’s guilt beyond a reasonable doubt.  *See United States v. Turner*, 25 M.J. 324, 325 (C.M.A. 1987);*United States v. Bright*, 60 M.J. 936, 938 (Army Ct. Crim. App. 2005) (citing *United States v. Adams*, 59 M.J. 367, 372 (C.A.A.F. 2004)).

Although we have set aside two specifications and amended five other specifications to reflect the evidence presented at trial, the overall criminal conduct remains extremely serious.  This criminal conduct occurred over the course of five years.  The most serious conduct included the appellant anally sodomizing his 12-year-old daughter, MB.  Moreover, while MB was only 12 years of age, appellant had her orally sodomize him and he orally sodomized her.  He also attempted to have his seven-year-old daughter, AB, orally sodomize him.  Even the amended specifications of indecent acts in Charge IV reflect a continuing course of inappropriate touching at various locations and dates with his two natural daughters.  

Appellant’s actions are compounded by threatening each daughter that he would physically harm them and throw them out of the house should they ever reveal his criminal actions.  Both his daughters manifested ongoing psychological harm, for which ongoing treatment is needed.  Appellant also would likely be a poor candidate for sex offender treatment.  He was diagnosed with both narcissistic and dependent personality disorders. 

Reassessing the sentence on the basis of the error noted, the entire record, and applying the principles of *United States v. Sales*, 22 M.J. 305 (C.M.A. 1986), and *United States v. Moffeit*, 63 M.J. 40 (C.A.A.F. 2006), the court affirms the sentence.

We set aside Specifications 1 and 3 of Charge IV and affirm the findings of guilty to Specifications 2, 4, 5, 7, 8 of Charge IV as amended.   The remaining findings of guilty are affirmed.  We have considered the remaining assignments of error and those matters personally asserted by appellant pursuant to *United States v. Grostefon*, 12 M.J. 431 (C.M.A. 1982), and find them to be without merit. Accordingly, the findings of guilty as amended and sentence are affirmed.  

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court

� Although the government’s brief indicates the dates for Specification 7 of Charge IV should amended to, “between on or about 1 August 2003 and on or about 23 October 2003, the charged date begins with “15 August 2003.”  The evidence supports these acts occurring within the charged time, and we are not at liberty to expand the charged dates.  

�  In Assignment of Error II b., appellant asserts he received ineffective assistance of counsel because his assistant defense counsel used a draft unsworn statement in the pre-sentencing hearing, without appellant’s express consent, when appellant was being tried in absentia.  We find that this was error.  Appellant’s decision to make an unsworn statement in pre-sentencing is his personal decision.  United States v. Marcum, 60 M.J. 198, 209 (C.A.A.F 2004).  The enclosure to Government Appellate Exhibit 1 is the pre-trial written rights advisement.  While this form puts appellant on notice of his rights, it does not provide his consent for his counsel to make an unsworn statement (arguably covered by the attorney-client privilege) on his behalf.  However, appellant had returned to military control by the time Rule for Courts-Martial 1105 matters were submitted and raised no objection.  As such, he ratified the decision his defense counsel made.  Furthermore, we find no prejudice, as the unsworn statement contained only non-specific apologies, no admission of guilt, and extenuating evidence that appellant was the victim of child abuse as a child.  See United States v. Strickland, 466 U.S. 668 (1984); United States v. Dobrava, 64 M.J. 503 (Army Ct. Crim. App. 2006). 

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