## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before CAMPANELLA, SALUSSOLIA, and FLEMING Appellate Military Judges

UNITED STATES, Appellee

v. Staff Sergeant JIMMY R. PERRIGIN United States Army, Appellant

ARMY 20160183

Headquarters National Training Center and Fort Irwin James S. Arguelles , Military Judge
Lieutenant Colonel Amber J. Roach, Staff Judge Advocate

For Appellant: Colonel Mary J. B radley, JA; Major Julie L. Bor chers, JA; Captain Daniel C. Kim, J A (on brief).

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Major C ormac M. Smith, JA; Captain Natanyah G anz, JA (on brief).

26 April 2018

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

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

SALUSSOLIA, Judge:

In this case we hold the offense of communicating indecent lang uage was factually and legally insufficient. The on ly evidence of the i ndecent language— charged as “the description of a sex dream where in [appellant] was performing oral sex on [the victim]” was the v ictim’s testimony, and she did no t testify that appellant told her it was a dream about ora l sex. We also hold trial counsel’s findings argument wa s improper, but it was not prejudicial to a ppellant.

A military judge, s itting as a special cou rt-martial, convicted appellant, pursuant to hi s plea, of violating a ge neral order in violation of Article 92, Uniform Code of Military Justice, 10 U.S .C. § 892 (2012) [hereinafter U CMJ]. A panel consisting of officers sitting as a special court-martial convi cted appellant, contrary to his pleas, of abusive sexual contact and communicating indec ent language, in
violation of Articles 120 and 134, UCMJ, 10 U.S .C. §§ 920, 934. The conveningPERRIGIN—ARMY 20160183

2 authority approved the adjudged sentence o f a bad-conduct disch arge and reduction to the grade of E-1.

Appellant’s case is before this court for review pursuant to Ar ticle 66(c), UCMJ. Appellant assigns two error s, both of which merit discus sion, and one of
which merits relief.

BACKGROUND

As charged by the government, the offens e of communicating inde cent language in v iolation of Artic le 134, UCMJ, req uired proof appe llant “orally communicate[d] to Ms. A M, certain indecent language, to wit: th e description of a sex dream wherein [appe llant] was performi ng oral sex on Ms. AM . . .”

During AM’s direct examination, she testified that appellant to ld her about a sexual dream he had involving her . When trial counsel asked AM what appellant
told her about the dream, AM answered: “ [h]e tells me that he has a dream that’s--
was sexual about me . . . .” Trial counsel again asked AM to d escribe what appellant
communicated to her about the c ontent of the dr eam to which she answered, “[h]e
tells me about a sexual dream that has [sic] a bout me . . . .”

When trial counsel attempted for the final time to elicit what appellant told her about what had specifically occurred in his d ream, AM’s ans wer was again nonresponsive, stating, “[ t]here was multiple times [appellant awo ke] in the middle from
the dream and has not been able to go bac k to sleep from what h e told me.” On cross-examination, AM a dmitted appellant ha d given a few specif ics about the dream
but did not tell her th at the two engaged i n oral sex in the dr eam.

The government also s ought to prove the c harge thro ugh appellan t’s statements to U.S. Army Criminal Investigation Command (CID) Sp ecial Agent (SA) KW. While appellant admitted t o SA KW that he told his daughte r he had a dream about her of a sexual nature, he adamantly denied telling her t he dream was about
oral sex between them.

LAW AND ANALYSIS

Factual Sufficiency of Communi cating Indecent Language

In accordance with Article 66(c) , UCMJ, we review issues of leg al and factual sufficiency de novo. United States v. Washington , 57 M.J. 394, 399 (C.A.A.F. 2002) (internal citation omitt ed). The test for f actual sufficiency is “whether, after weighing the evidence in the rec ord of trial an d making allowan ces for not having personally observed the witnesse s, [we] are [ourselves] convinc ed of the accused’s guilt beyond a reas onable doubt.” United States v. Turner , 25 M.J. 324, 325PERRIGIN—ARMY 20160183

3 (C.M.A. 1987). The test for leg al sufficiency is “whether, con sidering the evidence in the light most favo rable to the prosecu tion, a reasonable fa ctfinder could have
found all the essentia l elements beyond a r easonable doubt.” Turner , 25 M.J. at 324; see also United States v. Humpherys , 57 M.J. 83, 94 (C.A.A.F. 2002). In resolving questions of legal su fficiency, we are “bo und to draw every rea sonable inference
from the evidence of record i n favor of the prosecution.” United States v. Barner

, 56 M.J. 131, 134 (C.A.A .F. 2001) (internal c itations omitted).

In reviewing appellant’s convicti on for communica ting indecent language to
AM in violation of Art icle 134, UCMJ, w e are not co nvinced the offense was committed. Appellant and AM were the only two pre sent during t he alleged
communication. In ev aluating AM’s testim ony and appellant’s st atements to CID,
we find neither indivi dual attested that appellant communicated certain language to AM wherein he described having a dream in which he was performi ng oral sex on
AM. Because the recor d is bereft of evidenc e that actual indec ent language was communicated, we find the offens e factually and legally insuffi cient.

Improper Argumen t on Findings

Although appellant di d not object to trial counsel’s findings a rgument at trial

, he now asserts trial counsel committed prejudicial error through impro per argument on findings when he: 1 ) improperly interje cted his personal vi ews vouching for the government’s witnesses and evidence; 2) made disparaging commen ts about appellant that inflamed the prej udice of the panel; 3) argued t hat appellant should be held to a higher standard becau se of his training and service a s a SHARP representative; and 4) argued fa cts not in evide nce designed to inflame the passions of the panel.

While this court held in United States v. Kelly , 76 M.J. 793, 797-98 (Army Ct. Crim. App. 2017), 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 th at very issue. United States v. Kelly , No. 17-0559/AR, 2017 CAAF LEXIS 1184 (C.A.A.F. 20 Dec. 2017 ) (order). Accor dingly, as we recently did in

United States v. Koch , we will nonetheless review thi s case for plain error as a matter of judicial economy. ARM Y 20160107, 2018 CCA LEXIS 34, *11 (Army Ct. Crim. App. 29 Jan. 2018) (mem. op.) (citing United States v. Motsenbocker , No. 201600285, 2017 CCA LEX IS 651, *7 (N.M. Ct. Crim. App. 17 Oct. 2017), noting our sister service applied a plai n error analysis to unpreserve d objections to argument).

To establish plain erro r, appellant must pr ove: 1) there was e rror; 2) it was plain or obvious; and 3 ) the error resulted in material prejudi ce. United States v.
Flores , 69 M.J. 366, 369 (C.A .A.F. 2011). As for the underlying erro r, “[i]mproper argument is a questi on of law that we r eview de novo.” United States v. Marsh , 70PERRIGIN—ARMY 20160183

4 M.J. 101, 104 (C.A.A .F. 2011) (citing United States v. Pope , 69 M.J. 328, 334 (C.A.A.F. 2011)).

It is inappropriate for trial counsel to “offer[] substantive c ommentary on the truth or falsity of the t estimony and e vidence.” Fletcher , 62 M.J. at 1 80 (internal citation omitted). It is also i nappropriate for trial counsel to calculate an argument to inflame the passions of the panel members. Baer , 53 M.J. at 237. It is inappropriate to argue evidence that is not of record or that i s not reasonably derived
therefrom. Id.

In cases of improper argument, we assess whether prejudice exis ts by examining and ba lancing three factors: 1 ) the severity of the misconduct; 2) the measures adopted to c ure the misconduct; a nd 3) the weight of t he evidence supporting the conviction. Fletcher , 62 M.J. at 184; see also United States v. Frey

, 73 M.J. 245, 249 (C.A.A .F. 2014). “[T]he ar gument by a trial c ounsel must be
viewed within the context of the e ntire court-mar tial. The foc us of our inquiry
should not be on words in isola tion, but on the argument as ‘vi ewed in context.’”

United States v. Baer , 53 M.J. 235, 238 (C.A. A.F. 2000) (quoting United States v. Young , 470 U.S. 1, 16 (1985)).

We agree with appellant that tri al counsel engage d in improper argument in several instances by interjecti ng his personal v iews to vouch f or government witnesses and evidence. When referring to AM’s testimony, tria l counsel stated,
“We all know she’s truthful. She ’s not a liar.” When commenti ng on appellant’s guilt, trial counsel argued: 1) “We know that he touched her b reast and in ner thighs not for a massage, but to feel them;” 2) “W e know that he had . . . sexual dreams about her;” and 3) “We know he in tended to touch her breast for arousal . . . . We
know she did not consent.” We al so find trial counsel improper ly referenced former Congressman Anthony Weiner, inviti ng a comparison to another ma tter, the facts of
which were not admitted into evid ence and which bore no similar ity to the case at
hand.

It is difficult, howev er, to gauge how plain the improprie ty of these statements were in light of the overall disjointed, confused, a nd convolute d nature of trial counsel’s argument.

Even assuming the impropriety of t rial counsel’s argument const itutes plain error, we are confident there wa s no prejudice to appellant. A ppellant’s confession corroborates AM’s testimony and p rovides essentia lly uncontrove rted evidence that appellant touched AM’s inner thi ghs and breast w ithout her cons ent. Therefore, we are convinced that the court-martial convicted appellant of abu sive sexual contact
based on the evidence before it and not on the inappropriate st atements of trial
counsel. See United States v. Halpin , 71 M.J. 477 , 479-80 (C.A.A.F. 2013);

Fletcher , 62 M.J. at 185.PERRIGIN—ARMY 20160183

5 CONCLUSION

On consideration of the entire record, the find ing of guilty to the Specification and Charge III is set aside and dis missed. The r emaining findings of guilty are AFFIRMED. We are able to reasse ss the sentence on t he basis of the error
noted and do so after c onducting a tho rough analysis of the tot ality of circumstances presented by appellant’ s case and in accorda nce with the princi ples articulated by our superior court in United States v. Winckelmann , 73 M.J. 11, 15-16 (C.A.A.F. 2013) and United States v. Sales , 22 M.J. 305 (C.M.A. 1986).

In evaluating the Winckelmann factors, we fi nd no change in the penalty landscape as thi s is a special-court m artial. Additi onally, th e remaining offenses capture the gravamen of appellant’s miscon duct. Finally, ba sed on our expe rience,
we are familiar with the remai ning offenses so th at we may reli ably determine what
sentence would hav e been imposed at tria l. We are confident th at based on the entire record and appellant’s cou rse of conduct, t he panel woul d have imposed a sentence of at least that which was adjudged.

Reassessing the sentence based on the no ted error and the rema ining findings of guilty, we AFFIRM th e sentence as adjudg ed. We find this re assessed sentence is not only purged of any error but is a lso appropriate. All righ ts, privileges, and property, of which appe llant has been depri ved by virtue of tha t portion of the findings set aside by our decision, are ordered restored.

Senior Judge CAMPANELLA a nd Judge FLEMING concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: