### UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before TOZZI, CAMPANELLA, and CELTNIEKS Appellate Military Judges

UNITED STATES, Appellee

v. Private First Class MARIO J. LARAGUILLEN United States Army, Appellant

ARMY 20150516

Headquarters, 7th In fantry Division

Samuel A. Schube rt, Military Judge (arraignment) Kenneth W. Shahan, M ilitary Judge (trial)

Colonel Robert F. Resnic k, Staff Judge Advocate

For Appellant: Lieutenant Colonel Charles D. Lozan o, JA; Captain Heather L. Tregle, JA; Captain Michael A. Gold, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colone l A.G. Courie III, JA; Major John K. Choike, JA; Captai n Scott L. Goble, JA (on brief).

25 May 2016

---------------------------------- SUMMARY DISPOSITION

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CAMPANELLA, Judge:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of one specificat ion of rape of a child in violation of Article

120b of the Uniform Code of Military Justice, 10 U.S. C. § 920b (2012) [hereinafter UCMJ]. The military judge sentenced appellant to a dishonorable discharge, twenty months confinement, and reduction to the grade of E-1. Purs uant to a pretrial agreement, the convening authority approve d only so much of the sentence as provides for a dishonor able discharge, eigh teen months confinem ent, and a reduction to the grade of E-1. Appell ant was credited with one da y of pretrial confinement credit against his sentence.

This case is before us for review pursuant to Ar ticle 66, UCMJ. Appellate counsel raises one assignment of error, which requires disc ussion but no relief. We find the issues raised by appellant, pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982) to be meritless.LARAGUILLEN — ARMY 20150516

2 BACKGROUND

At trial, defense offered Defense Exhibits E and F, presentencing letters of support, into evidence . Both of these exhi bits were written in Sp anish. The exhibits were translated by an inte rpreter and read on the reco rd in English to the court during sentencing. The mil itary judge la ter entered the exhib its into evidence.

The exhibits were properly attached to the record of trial and the transcript states, “The interpreter read Defens e Exhibit E and Defense Exhibit F for

identification to the court-mar tial.” The transcript of the record of tria l, however, omitted the testimony of the interpreter as he translated the exhibits in English. The

record of trial was authentica ted and appellant failed to raise any error in his posttrial matters.

On appeal, appellant assert s the omission of the in terpreter’s translation on

the record for Defense Exhibits E and F re nders the transcript nonverbatim and the record of trial incomplete, necessitating relief under Rule for Courts-Martial [hereinafter R.C.M.] 1103(f). Subsequent to the filing of appellate briefs, we granted the government’s moti on to attach the transcribed audio recorded testimony from appellant’s cour t-martial to the reco rd of trial. The translated testimony constitutes three pages of transcript. The substance of Defense Exhibits E and F is that appellant is a “great friend” who was helpful at work.

LAW AND DISCUSSION

“[T]he record of trial shal l include a verbatim transcript of all sessions except

sessions closed for deliberations and voting when [a]ny part of the sentence adjudged exceeds six months confinement . . . .” R.C.M. 110 3(b)(2)(B) (emphasis added). UCMJ art. 54 (c)(1)(A). “If testimony is gi ven through an interpreter, a verbatim transcript must so reflect.” R.C.M. 1103(b)(2)(B), Discussion. Literal compliance with the term “verbatim,” meaning “[w]ord for word; in the same words,” is not required, but a “substantial” qualitative omi ssion renders a transcript

nonverbatim. United States v. Lashley , 14 M.J. 7, 8 (C.M.A. 1982). A substantial omission will raise a pres umption of prejudice but it can be rebutted by reconstituting th e omitted portion of the record. United States v. Harrow , 62 M.J. 649, 654-55 (A.F. Ct. Crim. App. 2006).

Here, appellant’s sentence exceeded six months thereb y triggering the requirement for a verba tim transcript. Under the circumst ances, the record of trial is

verbatim because the Defense Exhibits E and F were includ ed in the record of trial and the transcript indicated the exhibits were translated to the judge by the interpreter. Rule for Courts-Martial 1103 requires a verbatim transcript but not necessarily a Spanish to English translation.LARAGUILLEN — ARMY 20150516

3 Even if we were to fi nd a substantial omission rendering the transcript nonverbatim, the government su bsequently provided the actual transc ribed audio

recorded testim ony rebutting any presumption of prejudice. After reviewing the

transcribed audio reco rded testimony, we ar e convinced that th e omission of the English translation was not a substantial omission and it did not prejudice appellant or deny his opportuni ty for clemency.

CONCLUSION

Upon consideration of the entire recor d, the findings of guilty and the sentence as approved by the c onvening authority are AFFIRMED.

Senior Judge TOZZI and Judge CELTNIE KS concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court

MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: