## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before WOLFE, SALUSSOLIA, and ALDYKIEWICZ Appellate Military Judges

UNITED STATES, Appellee

v. Captain ADAM J. MYER United States Army, Appellant

ARMY 20160490

Headquarters, Fort Campbell

Matthew A. Calarco , Military Judge

Lieutenant Colonel Robert C. Insani, Staff Judge Advocate

For Appellant: Captain Augustus Turner, JA (argued); Lieutenan t Colonel Tiffany Chapman, JA; Captain Joshua B. F ix, JA; Captain Augustus Turner , JA (on brief);

Lieutenant Colonel T iffany D. Pond, JA; M ajor Todd W. Simpson, JA; Captain Augustus Turner, JA ( on reply brief).

For Appellee: Captain Brian Jones, JA (argued); Lieutenant Col onel Eric K. Stafford, JA; Major Pamela Perillo, JA (on brief).

10 January 2019

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

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

This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

ALDYKIEWICZ, Judge:

Appellant, a married chaplain, alleges that his conviction for conduct unbecoming an officer and gentleman for enga ging in incest with his legally adopted, eighteen-year-old daughter is “unconstitutionally vagu e” as applied to him. We disagree. Appellant further alleges he was denied effective assistance of counsel

“where defense counsel failed to reasonably inves tigate, presen t crucial evidence, and cross examine witnesses.” We likewise find this allegation to be without merit.

Both are addressed below. 1

1 After due considera tion of appellant’s thi rd assignment of err or, dilatory post-trial delay in violation of United States v. Moreno , 63 M.J. 129 (C.A.A .F. 2006), as well as those matters personally rais ed by appellan t pursuant to United States v.

(continued . . .)MYER—ARMY 20160490

2 A military judge sitti ng as a general court-martial convicted a ppellant, contrary to his pleas, of one sp ecification of sexual assault, two specifications of assault consummated by a battery, two specifications of assault consummated by a battery on a chil d under the age of sixtee n, and two specificat ions of conduct unbecoming an officer and gentleman in viola tion of Articles 12 0, 128, and 133, Uniform Code of Military Just ice, 10 U.S.C. §§ 920, 928, and 93 3 (2012) [UCMJ]. The convening authority approve d the adju dged sentence of a dis missal and eight years confinement.

BACKGROUND

Appellant’s assaults a ll involve family members as victims. He was convicted of multiple batteries against his adopted son, NM; multiple bat teries against his wife, MM; and, sexual a ssault against his a dopted da ughter, EM. The non-assault convictions, that is , his conduct unbecoming an officer and gen tleman, involves one specification of incest with EM, and one specification of wrong fully and dishonorably attempting to inf luence MM and EM from being coope rative and truthful during the law enforcement investigation into appellan t’s misconduct.

Appellant and MM, his wife of twenty-one ye ars at the time of t rial, legally adopted NM and EM when they were two and five respectively. Fr om approximately age two-and-a-half until adopted, EM was in appellant’s and MM’ s care and custody as foster parents.

Assaults Against Son

Between on or about 6 D ecember 2012 and on or abo ut 1 March 201 3, appellant assaulted NM twice in the fam ily home in Clarksville, Tennessee. 2 On one occasion, appellant saw NM “upset, ” and told him to leave the r oom. 3 As NM attempted to leave, he inadverte ntly bumped appe llant’s leg cau sing appellant to “[throw NM] across the room.” S ometime thereafter, NM once aga in found himself

(. . . continued) Grostefon , 12 M.J. 431 (C.M.A. 19 82), we have determi ned they warrant ne ither

discussion nor relief.

2 NM was thirteen years-old at the time of both assaults, and se venteen at the time of

trial.

3 MM’s undisputed testimony was tha t NM, at the times relevant t o the charged offenses, “has a low [intelligence quotient] and emotional age of a six-year-old. So,

he tends to have tantrums like a six-year-old would.” When ask ed how he acted during the tantrums, MM responded, “[h]e ye lls or cries.” Both MM and EM confirmed that NM was prone to anger and outbursts that include d violence.MYER—ARMY 20160490

3 “upset.” As NM attempted to g o upstairs to see h is mother, som ething he o ften did when upset, appellant tackled him from behind on the stairs, pu shed him into the staircase, and “sat ” on his back.

Assaults Against Wife

The next victim of app ellant’s anger was hi s wife, MM, who refu sed appellant’s demand on M other’s Day 2015 that she discipline NM for simply sitting in the kitchen and “doing nothi ng at the table.” Her refusal t o acquiesce to appellant’s demand c oupled with her a pparent focus on her cell phone, rather than appellant, resulted in appella nt grabbing her a rm. Nearly four months later, appellant, again, as saulted MM, this time holding he r down as h e grabbed h er arms. This second assault o ccurred as MM he ld their one-and-a-half ye ar old son.

Sexual Assault of Da ughter and Incestuous Unbecoming Conduct

The last of appellant’s victims was his daughter, EM. In appro ximately the beginning of July 20 15, appellant and EM tr avelled from their h ome in Clarksville, Tennessee to Fayetteville, North Carolina to wor k on appellant’ s rental property. During the trip, appell ant and EM stayed i n several hotels. On e night, after falling asleep fully clothed , EM awoke with her pants and underwear pul led down below her knees and appellant, her father, digitally penetrating her vagi na. Crying, EM asked appellant t o stop, which he did.

About one week later, after retu rning to Clarksv ille, Tennessee , appellant and EM, unbeknownst to app ellant’s wife, engag ed in a sexual relati onship. 4 Appellant’s sexual relationship with his daughte r lasted approx imately four weeks and included appellant, again, digitally pe netrating EM, and ea ch performing oral

sex on the other. These sexual acts occurred either on the cou ch in the family home, as MM and the family slept upstai rs, or in appell ant’s car.

Appellant’s Admissions

On or about 2 August 2015, appellant entere d the marital bedroo m and told his wife, “I am taking my wife. I have chosen y ou. I am ready to be your husband again.” He then proceeded to mak e varied admissions to MM abou t his relationship

with EM. He admitted to kissin g EM, touching her over her clot hes, digitally penetrating her, an d engaging i n oral sex with her.

4 EM testified that she thought the sexual ac tivity with appella nt after Fayetteville

was “consensual” beca use she did not tell appellan t to stop. S he explained she did not tell appellant to stop because she was scared and did not k now what he would

do.MYER—ARMY 20160490

4 LAW AND DISCUSSION

A. Conduct Unbecoming an Officer and Gentleman

1. Notice of Criminality

Appellant challenges his convi ction for conduct unbecoming an o fficer and gentleman by engaging i n incest with EM as b eing “void for vagu eness” as applied to him. In short, he argues that he lacked suffi cient notice t hat his sexual activity with his adopted daughte r, EM, was proscribed. 5

In support of his argu ment, appellant note s: incest “is exclus ively a state crime [with] fifty unique legal d efinitions, def enses, and pena lties across the country,” and “engaging in conse nsual sexual activity with an a dult, adopted child [ ] is not illegal in all states.” In his “supplemental citation of authority,” appellant points this court to seventeen s tates and the Dis trict of Colum bia where appellant’s sexual activity would not violate the relevant statute criminal izing incest. 6

Appellant’s “supplemental cita tion of authority ” is noticeably silent with respect to the fourteen states and one territory w here appellan t’s actions would, in fact, be criminal an d would have been so in July of 2015. Of n ote, Tennessee, appellant’s domicile, place of ph ysical residence , and situs of the incest at issue, is among the states crimin alizing digital pene tration with an adop ted child. See Tenn. Code. Ann. § 39 -15-302.

“‘Void for vagueness’ [ ] ‘means that criminal re sponsibility s hould not attach where one could not reasonably understand that his contemplated conduct is proscribed.’” United States v. Vaughan , 58 M.J. 29, 31 (C.A. A.F. 2003) (quoting

5 Appellant does not challenge the sufficiency of the pleadings specifically. At trial, defense counsel acknowledged he understood which elements appel lant had to defend against. See, e.g.

, United States v. Saunders , 59 M.J. 1 (C. A.A.F. 2003) (military judge did not err in denying mo tion to dismiss Articl e 134 offense alleging stalking in Germany that was mode led after the Georgia stalking statute because it provided “fair notice” to the acc used that his ac tions were cri minal and was sufficiently specific t o state an offense).

6 See, e.g., Ala. Code § 13A-13-3 (va ginal intercourse re quired); Alaska St at. § 11.41.450 (blood re lationship required); N.C. Gen. Stat. § 14-1 78 (carnal intercourse required); N.Y. Penal Law § 255.25 (blood r elationship required ). Additionally, appellant points to the government’s dismissal of Specification 1 of Charge II, which alleged a violation of North Carolina’s in cest statute, a statu te requiring “carnal intercourse,” as further proof that appellant lacked the requis ite notice that his

actions with EM were criminal.MYER—ARMY 20160490

5 Parker v. Levy , 417 U.S. 733, 757 (1974)). “Due proces s requires ‘fair notic e’ that

an act is forbidden and sub ject to criminal sanction. United States v. Bivins , 49 M.J. 328, 330 (C.A.A.F. 1998). It als o requires fair notice as to t he standard applicable

to the forbidden conduct. See Parker , 417 U.S. at 755 (1974); Vaughan , 58 M.J. at

31. Sources of notic e include: “the [ Manual for Courts-Mar tial, United States ], federal law, state law , military case law , military custom and usage, and military regulations.” Vaughan , 58 M.J. at 31 (ad dressing notice in t he Article 134, UCMJ context). The aforem entioned list is not exhaustive. As Judge Sullivan noted in his Boyett concurrence, notice is also by “ any other circumstance which wo uld establish

that a servicemember would have no reasonable doub t that his co nduct was unbecoming an officer.” United States v. Boyett , 42 M.J. 150 , 161 (C.A.A.F. 1995).

2. What constitutes co nduct unbecoming an of ficer and gentleman?

Appellant argues there must be a custom of the service prohibit ing incest in

order for him to have been on no tice that his conduct was crimi nal under the UCMJ. We disagree.

Conduct unbecoming an officer and gentlema n has two elements: (1) that the

accused did or omitte d to do certain acts; a nd (2) that , under the circumstances, these acts or omissions constituted conduct unbecoming an offic er and gentleman. Manual for Courts-Martial, United States (2012 ed.) [ MCM ], pt. IV, ¶ 59 .b(1) - (2).

“The focus of Article 133, UCMJ, is the ef fect of the accused's conduct on his status

as an officer.” United States v. Diaz , 69 M.J. 127, 13 5 (C.A.A.F. 2010) (citing

United States v. Conliffe , 67 M.J. 127, 132 ( C.A.A.F. 2009)). “The test for a violation of Article 133, UCMJ, i s “‘whether the conduct has fa llen below the

standards establis hed for officers.’” United States v. Conliffe , 67 M.J. 127, 132 (C.A.A.F. 2009 ) (quoting United States v. Taylor , 23 M.J. 314, 318 (C.M.A. 1987)). 7

7 In describing the nature of the offense and examples thereof, the MCM states, in
part: (2) Nature of offense . Conduct violative of this article is action or behavior in an official capacity which, in dishonoring or disgracing the person as an officer, seriously compromises the officer’s character as a gentleman, or action or behavior in an uno fficial or private capacity which, in dishonori ng or disgracing the officer personally, seriously compro mises the person’s standing

as an officer. . . . This ar ticle prohibits conduct by a commissioned officer, cadet, o r midshipman which, taking

all the circumstances into consideration, is thus compromising.

(continued . . .)MYER—ARMY 20160490

6 When an appellant argue s that a statute is “unconstitutional as applied,” we conduct a “fact sp ecific inquiry.” United States v. Ali , 71 M.J. 256, 26 5 (C.A.A.F. 2012); s ee also

, United States v. Amazaki , 67 M.J. 666, 671 (A rmy Ct. Crim. App. 2010) (“‘Each case must necessarily be deci ded on its own merit .’” (citations omitted)).

The military, unlike civilian s ociety, is a unique society. “I n military life there is a higher code termed honor, which holds its society to stricter accountability.” Fletcher v. United States , 26 Ct. Cl. 541, 563 (U.S. Ct. Claims 1891). That officers p lay a unique and vit al role in that spec ialized society is without question. See, e.g

., United States v. Pitasi , 44 C.M.R. 31, 37-38 (C.M.A. 1971) (affirming office r’s conviction for f raternization under Article 134, UCMJ). Only three years later , in affirming the constitutionality of b oth Article 133 and 134, UCMJ, the Supreme Court noted:

This Court has long recognized that the military is, by necessity, a specialized soci ety separate from civilian society. We have also recog nized that the military has, again by necessity, developed laws and traditions of its own during its long history. The differences between the military and civilian communities result from the fact that “it is the primary business of armies and navies to fight or be ready to fight wars shoul d the occasion arise.” . . . “[T]he military constitutes a specialized community governed by a separate discipline from that of the civilian,” and that “the rights of men in the armed forces must perforce be conditioned to meet certain overriding

demands of discipline and duty . . . .” We have also

(. . . continued) (3) Examples of offenses. Instances of violation of this article include knowingly making a false official statement; dishonorable failure to pay a debt; cheating on an exam; opening and reading a letter of ano ther without authority; using insulting o r defamatory language to

another officer in that offi cer’s presence or about that officer to other military p ersons; being drunk and disorderly in a public place; public association with known prostitutes; committing or attempting to commit a crime involving moral turpitude; and failing without good cause to support the officer’s family.

MCM pt. IV, ¶ 59 .c(2) - (3) (2012 ed.).MYER—ARMY 20160490

7 recognized that a military officer holds a particular position of responsibility a nd command in the Armed

Forces.

Parker , 417 U.S. at 743-44 (c itations omitted).

“[O]ne critically important res ponsibility of a military office r is to inspire the trust and respect of t he enlisted soldiers who must obey his or ders and follow his leadership.” United States v. Frazier , 34 M.J. 194, 198 (C.M .A. 1992) (officer who

resides with an enlisted Soldie r’s wife is guilt y of conduct un becoming an officer and gentleman notwithstanding the absence of any custom, regula tion, UCMJ provision, or express statute prohibiting the relationship or a ctivity).

Contrary to appellant’s assertio n before this cou rt, the absenc e of a “custom of the service” or promulgated p rohibition, such as a UCMJ prov ision, regul ation, or express statute, prohibiting in cest is not dispo sitive of wheth er appellant was on

sufficient notice that sexual act ivity with his ei ghteen-year-o ld daughter was unbecoming conduct. As our Superior Court noted in United States v. Rogers

, “proof of a service custom or re gulation [ ] ‘has not commanded a majority of this Court’ with the possible excep tion of officer-enlisted ‘fratern ization’ cases charged under Article 133, instead of Article 13 4.” 54 M.J. 244, 256 ( C.A.A.F. 2000) (citation omitted); s ee also United States v. Hartwig , 39 M.J. 12 5, 130 (C.M.A. 1994) (purely private letter cont aining sexual overtures from A rmy Captain to fourteen-year-old girl constitu tes conduct unb ecoming an office r and gentleman notwithstanding absenc e of any “custom,” r egulation, or express prohibition prohibiting conduct); Boyett , 42 M.J. at 160-61 (cu stom or regulation not constitutionally required for a valid prosecution under Article 133, UCMJ). 8

Unfortunately, appellant is not the first officer to be convict ed at a general

court-martial for incest. In 199 4, the Air Force Court of Crim inal Appeals affirmed an officer’s incest conviction for engaging in consensual sexua l intercourse with his natural daughter , a decision reviewed a nd affirmed by our super ior court. See

8 See generally United States v. Maderia , 38 M.J. 494 (C.M.A . 1994) (publicly associating with known drug smuggl er was conduct unbecoming an officer); United

States v. Frazier , 34 M.J. 194 (C.M.A. 1992) (living with enlisted subordinate’s spouse under circumstances falli ng short of adultery or wrongfu l cohabitation substantially denigrates marita l relationship to constitute con duct unbecoming);

United States v. Lewis , 28 M.J. 179 (C.M.A . 1989) (officer conv icted of charging fellow officer $2,000 for tutorin g him in leadersh ip skills con stitutes unbecoming conduct, characterized by the cou rt as “corrupt and demoralizin g”); United States v.

Giordano , 15 U.S.C.M.A. 163, 35 C .M.R. 135 (1964) (cha rging enlisted se rvice

members exorbitant interest rate s on loan unbeco ming conduct).MYER—ARMY 20160490

8 United States v. Hutchens , 1994 CMR LEXIS 30 (A.F. C t. Crim. App. 1994), aff’d, 43 M.J. 177 (C.A.A.F. 19 95) (consensual sexu al interco urse betw een forty-six-yearold officer and natural born twenty-four-year-old daughter cons titutes conduct unbecoming an officer and gentleman). 9

For over twenty years, our superior court and sister courts hav e held incest to be unbecoming conduct. No milita ry decision has held otherwise . While distinguishable from non-i ntercourse cas es, we read Hutchens broadly as a commentary on the inapp ropriateness of sexua l activity between father and daughter, activity that is witho ut question unbecomi ng an officer and gen tleman.

3. Appellant’s Conduct

On the facts before us , we have no reasonab le doubt that a fort y-year-old Army officer, chaplai n, husband of twenty yea rs, and father of eleven children, who engages in sexual act ivity with his eight een-year-old daughter, has engaged in conduct unbecoming an officer a nd gentleman. Tha t the daughter is adopted is a

distinction without a differenc e. That appellant’s incestuous acts stopped short of “carnal intercourse,” making it non-criminal in some states, is unpersuasive.

Equally unpersuasive is that appellant’s actions would not be c riminal in

seventeen states and the Distric t of Columbia. To be criminal under Article 133, UCMJ, the conduct at i ssue need not be crimi nal in all fifty st ates and five U.S. territories. That state laws vary in scope and applicability i s no surprise. Appellant cites no authority req uiring applicabilit y or uniformity of sta te laws in order to punish conduc t under Article 133, UCMJ.

Finally, appellant was not charge d with or convict ed of violati ng a “custom of the military service.” 10 Appellant was convicted of conduct unbeco ming an officer and gentleman by engaging in ince st with his eigh teen-year-old daughter, a person

who has called him father since the age of approximately two-an d-a-half, a legal obligation appellant a ssumed when his daugh ter was five. Any reasonable officer would recognize that engaging in s exual activity with his adopt ed daughter, under

the circumstances of this case , would risk bringi ng disrepute u pon himself and his

9 That Hutchens involved intercourse w ith the officer’s natural daughter instea d of sodomy and digital penetration with the officer’s adopted daugh ter are distinctions noted by this Court, but insignificant whe n considering whether appellant was on

notice that his actions w ere proscribed.

10 Put differently, havi ng sexual intercourse with one’s daughter is so grossly and obviously wrong that there has never been the need to declare i t prohibited by Army

custom. But if such a declaratio n is required, we would easily make it.MYER—ARMY 20160490

9 profession, seriously compromis ing his standing as an officer. See, e.g.

, United States v. Hartwig , 39 M.J. 125, 130 (C.M.A. 1994). 11

B. Ineffective Assistance of Counsel

Appellant’s allegati on of ineffective assi stance of counsel is an attempt to relitigate his court-m artial with a shotgun blast of alleged erro rs referencing affidavits which provide in formation that is largely irrelevant, inadmissi ble, or both. Our review of the record, appellate pleadings, and al l accompanying post-trial affidavits

and their enclosures 12 reveal that appellant was neither deprived of a fair trial nor

was the trial outc ome unreliable. See Strickland v. Washington , 466 U.S. 668, 698 (1984). In other words, appellant fails to establish that he w as prejudiced by his counsels’ performance. Considering everything before us, appel lant’s trial defense counsel were not ordered to provi de responsive affidavits nor w as a DuBay hearing deemed necessary. See United States v. Melson , 66 M.J. 346, 350 -51 (C.A.A.F. 2008) (requiring affidavit from de fense counsel b efore finding IAC); United States v. DuBay , 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967) (fact-f inding hearing necessary if appellate court is unable to resolve c onflicting affidavits)

.

Ineffective assistance of counse l claims are rev iewed 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). “T o prevail on an ineffective assistance claim, the appellant bears the burden of p roving that the perfo rmance of defense cou nsel was deficient and that the appellant was p rejudiced by th e error.” United States v. Captain , 75 M.J. 99, 103 (C.A.A .F. 2016) (citing Strickland , 466 U.S. at 698 (1984)).

To meet his burden regarding def iciency, appellant must show “c ounsel made

errors so serious that counsel w as not functioning as the ‘coun sel’ guaranteed the defendant by the Si xth Amendment.” Strickland , 466 U.S. at 687. In other words, does counsel’s performance meet a n objective stan dard of reason ableness or was it beyond the “wide range of profes sionally competent assistance” counsel are presumed and expect ed to provide. Id. at 690. In evaluating performance, courts “must indulge a stron g presumption that co unsel’s conduct falls within the wide

11 While we need not giv e it any weight, appellant’s marital stat us at the time and military occupational specialty o f chaplain would appear to fur ther undermine his
argument.

12 Appellant’s written ple adings before this court refer to “[Def ense] Appellate Exhibit A [AE A aka DAE A]” wit h varied page citations. A revi ew of the Record of Trial, to include all appella te filings, reveals the absence of any Defense Appellate Exhibit [DAE] A. Defen se appellate cou nsel confirmed that this was a scrivener’s error and that [ DAE] A should be [DAE] B.MYER—ARMY 20160490

10 range of reasonable prof essional assistance.” Id. at 689. This presumption can be rebutted by “show ing specific erro rs [made by defe nse counsel] that were unreasonable under prevaili ng professional norms.” United States v. McConnell , 55 M.J. 479, 482 (C .A.A.F. 2001).

Prejudice is establishe d by “showing t hat counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland

, 466 U.S. at 687. Appellant must show “‘a reaso nable probabilit y that, but for counsel’s [deficient performance] the result of the proceedings would have been

different.’” Captain , 75 M.J. at 103 (quoting Strickland , 466 U.S. at 694). “‘[T]he question is whether t here is a reasonable probability that, abs ent the errors, the

factfinder would have had a reasonable doubt respecting guilt.’ ” Captain , 75 M.J. at 103 (quoting Strickland , 466 U.S. at 695). “‘It is not e nough to show t hat the errors

had some conceivable effect on the outcome . . . .’” Captain , 75 M.J. at 103 (citations omitted).

“An appellant must establish a f actual foundation for a claim o f ineffectiveness; second-guessin g, sweeping gener alizations, and hindsight will not

suffice.” United States v. Davis , 60 M.J. 469, 47 3 (C.A.A.F. 2005) (citing United States v. Key , 57 M.J. 246 , 249 (C.A.A.F. 2002)); United States v. Alves , 53 M.J. 286, 289 (C.A.A.F. 2000); United States v. Gray , 51 M.J. 1, 19 (C.A .A.F. 1999). In assessing an appellant ’s IAC claim, the per formance and prejudi ce prongs of

Strickland can be analyzed independently and if appellant fails either pr ong, his IAC

claim fails. Strickland , 466 U.S. at 697.

Appellant’s IAC blast covers the traditional court-martial proc essing continuum: pretrial, trial, and post-trial, culminating with a n alleged selfassessment by civilia n counsel who, when aske d by appellant why he did not present certain evidence, allegedly resp onded by stating that he “just spaced it.”

1. Pretrial Effectiveness of Counsel

Appellant alleges that his defense counsel were ineffective bec ause they failed to contact three potential witnesse s: CR, BEM, and Dr. KC. In ad dition to appellant’s affidavit, appellant submitted aff idavits from CR, BEM, and CPT MB. 13

13 Captain MB wrote an affidavit stating he witnes sed a phone con versation between appellate defense counsel and Dr . KC. Captain MB relates in th e affidavit a summary of the conversation.MYER—ARMY 20160490

11 a. Failure to Contact CR

A review of CR’s affidavit reveal s this witness lacked any firs t-hand knowledge of appellant ’s crimes. His affida vit focuses on his personal and sexual relationship with EM, his “suspicions” and speculation regardin g EM’s relationship with appellant, and his belief regarding EM ’s sexual maturity, noting “she is far too sexually advanced to be taken advantage of by [appellant].” Ap plication of Military Rule of Evidence [Mil. R. Evi d.] 401, 402, and 403, defining re levant evidence, its admissibility, and the exclusion of otherwi se relevan t evidence for “prejudice, confusion, waste of time, or othe r reasons,” respectively, Mil. R. Evid. 412, prohibiting evidence of “other sex ual behavior” and a “victim’s sexual predisposition,” a nd Mil. R. Evid. 802, “[t]he ru le against he arsay” result in an affidavit of margina l value at best.

It is appellant’s burden to esta blish prejudice. When appellan t pursues a claim of IAC under a theory that certain other evi dence should have been admitted, then appellant must at least dem onstrate the evidence was admis sible. At no point in the pleadings before this court does appellant pr ovide his theo ry of admissibility for

the information contained in CR’s affida vit. For example, CR d iscusses, in rather graphic detail, his sexual enco unters with EM. Appellant fails to articulate how this evidence is logically relevant to any of the charged offenses u nder Mil. R. Evid. 401

or admissible when consider ing Mil. R. Evid. 412.

Appellant has failed to meet his burden to establish prejudice by defense counsel’s alleged failure to contact CR. 14

b. Failure to Contact BEM

A review of BEM’s affidavit rev eals, with the ex ception of char acter evidence regarding appellant’s character for peacefulness, evidence that is largely

inadmissible after a pplication of Mil. R. Evid. 401, 402, 403, 412, and 802. With regard to the po tentially admissible cha racter evidence, appell ant fails to establish any prejudice by its absence.

14 We also conclude that the fail ure to call CR would have been o bjectively

reasonable. Gover nment appellate counsel makes an excellent po int in their brief before this court, one that would, in fact , support a trial def ense counsel’s tactical

decision not to call CR as a witn ess. “[C]ross-examination of Mr. [R] could have been harmful to appellant’s case because [CR] sta ted the victim had confided in him that appellant raped her, was s talking her, and tried to run he r off the road.” In other words, CR woul d expose appellant to e vidence corroboratin g, not rebutting, EM’s allegation of s exual assault.MYER—ARMY 20160490

12 The first two paragraphs of BEM’s affidavit address how EM alle gedly sexually assaulted her and then her brother, NM, the victim of two of appellant’s Article 128, UCMJ, con victions. Appellant fails to a rticulate how this evidence is logically relevant o r admissible. BEM goes on to state she was eventually estranged from her parents and no longer resides in the home. Although h er date of departure from the family home is unstate d, it is clear from the affidavi t that BEM was not residing at home at the time of t he sexual activity between app ellant and EM. In other words, she has no personal know ledge rega rding the sexual assault or incest. Thus, the only information she c an offer on the Article 120 and Article 133 convictions is both speculative and based on inadmissible hears ay.

The only evidence in BEM’s affidavit that appears to be admissi ble is her opinion that appellant was a peaceful person toward his family, having “never known or observed [appe llant] to be c ross, harsh, ab usive, or b elittling to anyone.” She adds, “[Appellant] was generally a very conservative and st raight-laced guy.”

Assuming without deciding that BEM could have provided characte r or reputation evidence regarding a ppellant’s charac ter for peacefu lness consistent with

Mil. R. Evid. 40 4 and 405, appellant fa ils to establish how the failure to introduce

this evidence resulted in material prejudic e to appellant. Hav ing considered the omitted character evidence as well as the remainder of BEM’s pr offered testimony, we find appellant has failed to meet his bu rden to es tablish pr ejudice by defense counsel’s alleged failure to contact BEM.

c. Failure to Contact Dr. KC

Unlike CR and BEM, Dr. KC’s pro ffered testimony c omes to us not via an affidavit, but via affidavit from an individual who “witnessed a phone conversation” between Dr. KC and appellate de fense counsel. Thus, the affian t has no personal knowledge of the matters (e.g., NM’s violent tendencies) that w e are being asked to

credit. These facts are not properly before us. See United States v. Cade , 75 M.J. 923 (Army Ct. Crim. App. 2016).

Assuming arguendo we were to con sider the affidavit, Dr. KC wou ld have

corroborated that NM wa s prone to violence, sometimes involving weapons, that law

enforcement was called to deal wi th his outbursts, and that MM was scared of NM. This information, howe ver, was already befo re the court and was uncontested.

NM testified that when he gets upset and is unable to calm down via his coping mechanisms, he will “yel l,” “scream,” and “punch walls.” He admitted to hitting his sister. He testifie d he was going to counseling be cause “I threatened to kill my mom.” EM testified to NM ’s anger and vio lence, testify ing that NM has hit

her. She also testifie d that appellan t has had to d iscipline h im when he had his

outbursts. MM testifie d that NM has hit hi s brothers and siste rs. She also testifiedMYER—ARMY 20160490

13 to “problems downtown in Montgomer y County as far as the juveni le court;” NM was “angry” and made a “verba l threat [to kill MM].”

Following the cross-examination of NM, EM, and MM, it was clear that appellant had to leg itimately use for ce, at times, t o restrain NM during his o utbursts. In other words, the d efense of parental discipline was clearly in play regarding both

assaults of NM. See, e.g.

, United States v. Rivera , 54 M.J. 489, 491 (C.A.A.F. 2001); see also , Dep’t of the Army, Pam. 27-9, Le gal Services: Military Judge s’ Benchbook [Benchbook], para. 5-16 (10 Septe mber 2014).

Appellant fails to show, however , how failing to call Dr. KC, a witness whose testimony would have been cumulat ive, would have had any impact on the evidence already before the court. We find appellant has failed to mee t his burden to establish prejudice by defense c ounsel’s alleged f ailure to con tact Dr. KC.

2. Effectiveness of Counsel at Trial

a. Failure to call Captain KW

Appellant alleges that CPT KW sh ould have been called to testif y to appellant’s character for peacefulness towards his wife and chi ldren as well as MM’s

character for untruthfulness an d motive to fabricate. Appellan t submits CPT KW’s affidavit in support of this allegation.

We agree the affidavit does indicate that CPT KW would have tes tified that appellant was a good father and husband. But, no thing in the a ffidavit presents a

“motive to fabricate” unless the fac t that appellan t and his wi fe grew apart, separated, and eventually sought a divorce, without more, const itutes a “motive to

fabricate.” Indeed an y “motive” to fabricat e likely originates in appellant’s betrayal of MM, betrayal highli ghted by appellant’s sexual activity with their daughter, an issue appellant reasonabl y would want to avoid.

Nothing in CPT KW’s af fidavit, or any of the other affidavits, indicates that MM used the allegations against appellant t o gain any advantage , legal, financial, or otherwise. Beyond CPT KW’s Mil. R. Evid. 404 and 405 character and reputation evidence regarding appe llant’s character for peacefulness, vis- à-vis appellant’s

interactions with his children, much of his affidavit is irrele vant testimony on the merits and margina lly relevant testi mony on sentencing.

Regardless, were we to assume ev erything in CPT KW’s affidavit was admitted, we are confident the outcome of the proceeding remain s unchanged. Appellant has failed to meet his burden regarding prejudice as it relates to the

failure to call CP T KW on the merits.MYER—ARMY 20160490

14 b. Failure to use a 2013 Department of Child Services Investigation

The Department of Child Services ( DCS) Report contains some inf ormation favorable to appellant . It also contains i nformation that is d amaging and

corroborative of NM’s a llegations that appellant is violent tow ards him. The

favorable information includes statements by MM that she never witnessed appellant

hit NM and that NM is violent a nd has made threat s to his paren ts. The unfavorable

information includes the DCS soci al worker’s state ments that NM complained of appellant beating him. It is objectively reasonable for a defe nse counsel to weigh these competing interests and avoid admission of the report.

Like the testimony of Dr. KC discussed above, much of the infor mation sought, that NM is pr one to violent o utbursts, to include viole nce up to and including threatening to kill hi s mother necess itating Juvenile Court intervention, was already befor e the court. Appellan t fails to proffer how t he DCS Report or the

evidence contained th erein would be admiss ible considering Mil. R. Evid. 802, and if admissible, how it was to be use d, and what imp act, if any t hat might ha ve had. In other words, appellant fails to establish prejudice regarding t he alleged failure to “use” the 2013 DCS report.

c. “Pressure” to plead guilty

Appellant claims that his counsel were ineffective because they “pressur[ed]” him to plead guilty. This claim is frivolous on its face when, as here, app ellant pled not guilty.

Appellant fails to c ite, nor have we foun d, any authority that purports to find IAC when counsel applied “pressure” on their client to plead gu ilty in a c ase where the client did not pl ead guilty. In suppo rt of his claim, appe llant submitted e-mail exchanges between him and his cou nsel concerning a possible gui lty plea. Notably,

defense counsel a dvised appellant that the charges against him are serious and estimated appellant would receiv e a sentence of, at least, betw een twelve to twentyfour months of confinem ent. Appellant replied that he was “una ble to feel at ease with anything less than a trial.” Fifteen minutes later, defen se counsel acknowledged appellant’s desire to not plead guilty and stated, “We will be ready

for trial.”

Rather than “pressure,” the e-mail exchanges reveal appellant’s defense

counsel was concerned for his cli ent and offered well-reasoned advice bas ed on his years of experienc e as a criminal de fense attorney.

Appellant fails to establish any deficiency, let alone prejudic e, stemming from

counsel’s advice on w hether to accept or reject a plea.MYER—ARMY 20160490

15 d. Defense counsel’s failure to file an y motions beyond on e motion to dismiss

Appellant cites, in support of his IAC all egation, counsel’s f ailure to file any pretrial motions bey ond one motion to dismiss. 15 Appellant fails, however, to state what pretrial motions couns el should have filed. “‘When a claim of ineffective

assistance of counse l is premised on counse l’s failure to make a motion [ ], an appellant must show that there is a reasonable probability that such a motion would

have been meri torious.’” United States v. McConnell , 55 M.J. 479, 482 (C.A.A.F. 2001) (quoting United States v. Napoleon , 46 M.J. 279, 284 (C.A .A.F. 1997)). As such, counsel ne cessarily must articulate what motions should h ave been argued. Having failed to do s o in this case, appe llant has failed to sh ow deficient performance or prejudice warranting relief.

e. Defense counsel’s failure to present evidence of EM’s statements regarding the consensual nature of the relationship with appellant

Appellant alleges deficiency ste mming from trial defense counse l’s failure to present evidence of a lleged statements by E M to two law enforce ment perso nnel and a private investigator regardi ng the consensual nature of her r elationship with appellant. First, the appellate filings fa il to contain an aff idavit from any of the three aforementioned personnel. In other words, we have no ide a what any of these potential witnesses w ould say under oa th. Next, the fact that EM told law enforcement the relationship, at least the post-Fayetteville se xual assault relationship, was consensual was s uccessfully eli cited during c ross-examination.

Appellant fails to establish any prejudice from the lack of add itional crossexamination of EM. Reg arding the sexual ass ault, appellant fai ls to provide any evidence, other than appellant’ s self-serving des cription of ev ents in his affidavit, that EM told anyone that what occurred in the h otel room in Fay etteville, North

Carolina was consensual.

f. Failure to cross-examine JM

Appellant alleges IA C regarding counsel’s decision not to cross -examine JM, appellant’s son. Again, appellant does not articulate what ev idence would have

been elicited via cross-examina tion and what impact, if any, th e failure to elicit said

evidence would hav e had on the fai rness or relia bility of appel lant’s trial. In other

15 Defense counsel succ essfully moved to dismiss Specification 1 of Charge II, which alleged a violat ion of Article 133, U CMJ (incest in viola tion of N.C. Gen. Stat. § 14-178). Defe nse counsel also succ essfully moved, purs uant to Rule for Courts-Martial [R.C.M.] 917, for a finding of not guilty to Spe cifications 1 and 2 of Charge III, violations of Article 90, UCMJ.MYER—ARMY 20160490

16 words, appellant fails to carry his burden in establishing defi ciency or prejudice regarding the ex amination of JM.

We also note appellant ignores blackletter law when he argues J M should have been allowed to testify that he, JM, believed EM and her mother , MM, fabricated the charges against appellant. JM h ad no first-han d knowledge rega rding any of the offenses nor any evidence that the two fabricated the allegatio ns against appellant. What JM had was his “belief,” no thing more, yet appellant belie ves he should have been allowed to testify to his b elief regarding the veracity of the allegations. We disagree. See, e.g.

, United States v. Martin , 75 M.J. 321 , 324-25 (C.A .A.F. 2016) (human lie detector t estimony prohibited).

g. Failure to impe ach EM, NM, and MM

Contrary to appellant’s claim, a r eview of the record reveals d efense counsel did, in fact, impeach NM, MM, and EM. That defense counsel’s i mpeachment fell short of fully discrediting the witnesses does no t establish de ficient performance or prejudice. For example, defen se counsel elicit ed testimony fro m EM about the consensual nature of her relationship with appellant following the Fayetteville sexual assault. Additionally, d efense counsel e licited on cros s-examination that EM

was kicked out of the house following appellant’s disclosure of the sexual activity and argued with her mo ther “on the porch.” Regarding counsel’s failure to impeach EM on her “modus operandi of sex ually pursuing adoptive family members,” appellant fails to show how this evidence would b e admissible w hen considering

Mil. R. Evid. 401-40 3, 412, and 803. The fact-finder, having evaluated both EM and appellant’s credibility, concluded that the sexual act in F ayetteville was nonconsensual.

Defense counsel was a ble to impeach NM by eliciting evidence du ring trial to corroborate that NM was prone to violent outbursts, that he has been violent towards family members, that he threate ned to kill his mother, and that , at times appellant had to discipline NM or physical ly restrain him during his outb ursts. The court found, consistent with NM’s test imony, that the two charged inc idences of assault were not incidences where appellant was simply exercising legit imate parental discipline; rather, on the two ch arged occasions, in NM’s bedro om and on the stairs,

the court found appellant battered NM.

Regarding the as sault of MM, appellant of fers no evidence of wh at counsel should have produced, either dire ctly or through c ross-examinat ion, that would negate or call into quest ion either assault.

To the extent there was any “fai lure to impeach” by defense cou nsel, the

“failure” was in counse l’s inability to get appellant’s accuser s to agree with appellant’s version of events, a “failure” arguably found in ev ery case where anMYER—ARMY 20160490

17 accused puts on a defense and is nonetheless co nvicted. Appell ant fails to meet his burden to establish IAC regarding counsel’s performance vis-à-v is impeachment of appellant’s accusers.

h. Appellant did not get a chance to testify to help himself

Of all the allegations raised by appellant, this is the most di sconcerting.

A military crimi nal accused, with the adv ice and assistance of counsel, has four decisions that are uniquely his: by whom he wants to be r epresented (i.e., counsel); what forum will hear his case; how to plead; and, whe ther to testify.

United States v. Summerset , 37 M.J. 695, 699 (A.C.M.R. 1993).

Appellant’s pleadings before this court claim his trial defense counsel “prevented” appellant from fully testifying regarding his relat ionship with EM and the other allegations. Appellant’s affidavit states, “I didn’t even get a chance to testify to help myself as [appellant’s defense counsel] cut me off on the stand.”

Regarding appellant’s claim that he “did not get a chance to te stify to help himself,” we find that statement to be simply false. That coun sel chose to limit the scope of appellant’s te stimony is clear from the record. It wo uld appear counsel focused on defeating the sexual assault allegati on and limiting appellant’s exposure on cross-examination, a strategy that makes absolute sense when reviewing appellant’s affidavi t, his cross-examina tion testimony, and the record as a whole.

During the government’ s case, defense couns el elicited from EM, without objection, that appe llant told her, immediately following the a lleged sexual assault, that she was on top of him and that he thou ght she was “awake.”

During the defense ca se, appellant testified to his belief that EM was awake and the aggressor when the sexua l assault occurr ed, testimony c onsistent with the

information counse l obtained from EM earli er. Appellant testif ied that he fell asleep watching a movie with EM and aw oke to EM “rubbi ng up and down o n my genitals” and then EM “got on to p of me.” He further testified that she did not appe ar to be asleep. He stated, “m y adopted daughter was coming on to me, h ad sexually aroused me, was sexually aroused herself , and you know, we were engagin g in a physical relationship at th at point.” He continued:

So that went on for about somewhere between 5 and 10 minutes, you know, pretty, yo u know, vigorous contact. She gets to the point where she is moving into having an orgasm. You know, she's b reathing heavy, moaning, arching her back, things like th at, and right as she kind of gets to that point, I hear, which really kind of chilled meMYER—ARMY 20160490

18 and caught me off guard, sh e says, you know, “I can't believe you. You know, you are a Chaplain,” and immediately, I stopped.

On cross-examination, appellant a dmitted telling his wife he di gitally penetrated his daughte r in Fayetteville, le aving consent the on ly contested issue on the sexual assault charge.

Appellant’s allegatio n regarding his limited ability to defend himself relies entirely on his affidavit. His affidavit, however, like appell ant’s in-cou rt testimony,

focuses on the sexual assault alle gation and the follow-on sexu al activity in

Tennessee. Had a ppellant testified consi stent with the informa tion in his affidavit, he would have certainly dispelled any doubt regarding the charg e of incest and left only consent in dispute regarding the charg e of sexual assault, an issue to which he did, in fact, testify. Regarding the remaining charges, appell ant’s affidavit is silent as to what appellant would have said if given the “chance.” In other words, he proffers no testimony re garding the ba tteries or obs truction ch arges, at least none that would be exculpatory i n nature, if “allowed.”

Assuming arguendo that counsel limited appellant’s testimony re garding all other offenses, we find appellant has failed to meet his burden to establish prejudice. As noted above, appellant’s affid avit focuses on the sexual act in Fayetteville and

the sexual acts in Ten nessee. We do not kn ow what appellant wo uld have said if “allowed” to testify regarding the remaining offe nses. It is h is burden to put forth what evidence was kept from the trier of fact a nd what impact, if any, it w ould have had. Appellant has fa iled on both fronts.

3. Effectiveness of Counsel Post-Trial

Appellant asserts his defense counsel was ineffe ctive post-tria l because he failed to provide CPT KW’s letter of support in his clemency ma tters. Appellant fails to establish a colorable showing of possible prejudice re garding this omitted submission. “In post-trial matter s involving a convening autho rity's decision, ‘there is material prejudice to the sub stantial rights of an appellant if there is an error and the appellant ‘makes some colora ble showing of possible prejudi ce.’” United States v. Fordyce , 69 M.J. 501, 504 ( Army Ct. Crim. App. 2010) (citing United States v.

Wheelus , 49 M.J. 283, 288 (C.A .A.F. 1998) (quoting United States v. Chatman , 46 M.J. 321, 323-24 (C. A.A.F. 1997))).

Appellant has made no showing of prejudice. Desp ite having amp le time to submit the missing letter, none was submitted. Furthermore, wh ile CPT KW submitted a post-trial affidavit, his affidavit is silent as to what was said in this missing letter. We find appellan t failed to meet his burden re garding this omitted

letter. It is not this court’s responsibility t o ascertain fro m a post-trial affidavitMYER—ARMY 20160490

19 what a missing clemen cy letter might have said and then to furt her speculate whether its omission prejudiced appellant . That burden be longs to appe llant; he failed to

meet that here.

4. Counsel’s Self-Assessment

We end our lengthy dis cussion by commenting on appellant’s asse rtion that

his civilian counsel a dmitted to ine ffectiveness via his claim that he, counsel, “just spaced it.” Assuming a rguendo that his defense counsel actuall y said this, we give slight weight to counsel’s subject ive, post-trial self-assessme nt of performance.

“After an adverse verdict at trial even the most e xperienced co unsel may find

it difficult to resist asking whether a di fferent strategy migh t have been better, and,

in the course of that reflection , to magnify their own responsi bility for an

unfavorable outcome.” Harrington v. Richter , 562 U.S. 86, 109 (2011). In assessing counsel’s performance, the standard is an objective o ne, not subjective.

Strickland , 466 U.S. at 688. “The Strickland standard of objectiv e reasonableness does not depend on the subjective intentio ns of the attorney, j udgments made in hindsight, or an attorn ey’s admission of def icient performance. ” Jennings v. McDonough , 490 F.3d 1230, 1247 (11th Cir. 2007). “Our task in deciding a claim of ineffective assistance is to determine whether counsel’s perfor mance was

‘ objectively unreasonable.’ Blakeney v. United States , 77 A.3d 328, 34 4 (D.C. Cir. 2013) (citations omitted). The issue is not counsel’s sincerity but the reasonableness, ‘consi dering all the circum stances,’ of counsel 's challenged judgment ‘under prevailin g professional norms.’” Id.

“[S]econd-guessing, sw eeping generalizati ons, and hindsight wil l not suffice”

to establish ineffective assistance of counsel. United States v. Davis , 60 M.J. 469, 473 (C.A.A.F. 2005) (citations om itted). The Constitution enti tles an accused to a “fair trial, not a perfect one.” Deleware v. Van Arsdall , 475 U.S. 673 , 681 (1986).

With the benefit of hi ndsight and var ied affidavits, to include appellant’s affidavit with enclosures, app ellant attempts to r e-litigate his court-ma rtial. In so doing, appellant purportedly provides this court with evidence of both deficient performance by his counsel and resulting prejudice. In other w ords, appellant was denied a fair trial resulting i n an unreliable outcome. We dis agree.

CONCLUSION

The findings of guilty and th e sentence are AFFIRMED.

Judge SALUSSOLIA concurs.MYER—ARMY 20160490

20 WOLFE, Senior Judge, concurring:

I concur fully with to day’s opinion. I wr ite separately to exp lain my understanding on how this cour t weighs claims of IAC.

To my eye, several of the IAC cla ims we decided today fail on t heir face. That is, appellant does not stat e a prima facie claim of IAC. This is concerning as either (a) there exists a merito rious claim of IAC but it wasn’ t presented t o us; or (b) facially invalid claims were sub mitted for our c onsideration. Both are troubling, but

the first is more so. Failure t o properly present a meritoriou s claim of IAC to this court will significantly affect the likelihood of success on an y future direct or

collateral attacks o n the conviction.

Why throwing it at the wa ll and seeing what sticks does not work for most IAC

claims. 16

Most assigned errors this court reviews are contained in the re cord of trial. Under Article 66(c), U CMJ, this court con ducts a de novo review of the entire record. Thus, we revi ew a record for errors even when no error s are assigned and no specific relief is sought. At l east for preserved errors, an a ppellant has no burden to

obtain relief on appeal. See United States v. Washington , 57 M.J. 394 , 399-400 (2002). Theoretica lly, the judges on this court should identif y and grant relief regardless of the argu ments of the parties. 17 For example, in United States v. Grostefon , our superior court r elied on our br oad review when deciding t hat seminal

case:

There can be little harm in [raising Grostefon issues] since

the Court of Mi litary Review has the mandatory responsibility to rea d the entire recor d and independently

arrive at a decision that the findings and sentence are

correct in law and fact. Henc e, raising an issue that

counsel does not think is me ritorious would, at worst,

16 My analysis here is limited to claims of IAC based on evidenc e not in the record

of trial.

17 To be clear, the pa rties’ adversarial p erspective often provi des different insight, identifies issues that we might have missed, and benefits us gr eatly. As our superior court stated, “we must a lso recognize th at even the mo st conscientious counsel and judges wil l occasionally overl ook an error in the p ress of dealing with a load of case[s], and, for that reason, any assist ance in the id entification of issues can further the proper administr ation of military justice.” Grostefon , 12 MJ at 436 (1982).MYER—ARMY 20160490

21 signal the Court of M ilitary Review to con sider the record in light of that issue.

12 M.J. at 435 (1982).

A cheerful view of our Article 66(c) responsibilities is that t he judges on this court attempt to get to the legally and factually correct resul t notwithstanding how an issue might be bri efed. But, that logic applies only to our review of the record of

trial. We do not conduc t a de novo review of matter that is no t part of the record of

trial – if such a th ing is even pos sible. Nor does our factfin ding authority extend to

matter outside the record. United States v. Ginn , 47 M.J. 236, 242-43 (1997).

In other words, the p ractical burden of pr oof on an appellant i s entirely different depending o n whether the factual basis for a claim is based on evidence

inside or outside the record of trial. An appellant who seeks relief because of preserved instructiona l error should do the ir best to convince us they are entitled to relief. But, a failu re to connect the dots in an appellate bri ef will not be fatal to our

de novo review of the claim. By con trast, an appellant who se eks relief while relying on facts that a re not in the record will fail if the fa cts are not presented in a manner the court can accept. United States v. Cade , 75 M.J. 923, 929 -30 (Army Ct. Crim. App. 2016).

For emphasis, consider a more cynical framing. Under Article 6 6(c), our review includes a determination as to whether the findings are correct in law. In the case of an IAC claim, whether a f inding is correct in law will not be determined by

whether counsel were ineffective in the abstract, or whether a counsel is ineffective if only the true facts were to be discovere d. This court is an appellate tribunal not an investigative body. Rather, a finding will only be incorrec t in law if an appellant presents the facts to m eet his burden under Strickland , 466 U.S. 668 (1984).

At several instances, appellant claims that his trial attorney was “most egregious[ly]” ineffective for fa iling to provide the court-mar tial with certain testimony and evidence. But, if this was er ror, it was an erro r that is repeated on appeal. And because we too are not pr ovided with the allegedly key testimony and evidence, it is an error that is likely fatal.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: