U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM 39016
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UNITED STATES
Appellee
v.
Taylor L. Johnson
Airman First Class (E-3), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 2 June 2017
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Military Judge: Patricia A. Gruen.
Approved sentence: Bad-conduct discharge, confinement for 7 months,
and reduction to the grade of E-1. Sentence adjudged 20 January 2016
by GCM convened at Yokota Air Base, Japan.
For Appellant: Lieutenant Colonel Judith A. Walker, USAF; Major An-
nie W. Morgan, USAF; Brian L. Mizer, Esquire.
For Appellee: Major J. Ronald Steelman III, USAF; Gerald R. Bruce,
Esquire.
Before MAYBERRY, HARDING, and C. BROWN, Appellate Military Judges.
Judge C. BROWN delivered the opinion of the court, in which Senior Judge
MAYBERRY and Judge HARDING joined.
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This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
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C. BROWN, Judge:
At a general court-martial composed of military judge sitting alone, Appel-
lant was convicted, consistent with his pleas and a pretrial agreement (PTA),
of two charges with six total specifications of assault consummated by a battery
United States v. Johnson, No. ACM 39016
in violation of Article 128, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 928, and one charge with a single specification of communicating a threat in
violation of Article 134, UCMJ, 10 U.S.C. § 934. 1 The military judge sentenced
Appellant to a bad-conduct discharge, confinement for seven months, and re-
duction to the grade of E-1. The convening authority approved the sentence as
adjudged. 2
On appeal, Appellant asserts that his sentence is inappropriately severe
because the military judge did not adequately consider the mitigation evidence
presented at trial. 3 Finding no relief is warranted, we affirm the findings and
sentence.
I. BACKGROUND
While stationed at Yokota Air Base, Japan, Appellant assaulted Mrs. JL
near the Yokota Enlisted Club by grabbing her by the waist and kissing her.
Mrs. JL pushed Appellant away; however, Appellant proceeded to touch her
again until she ran away from him. Appellant assaulted a second victim, Mrs.
CT, at an off-base nightclub by hugging her and grabbing her buttocks. Two
months later, while at the same off-base nightclub, Appellant again assaulted
Mrs. CT, this time hugging her, touching her chest, touching her buttocks with
his erect penis while both parties were fully clothed, and biting and kissing her
neck. That same night, at the Yokota Enlisted Club, Appellant again assaulted
Mrs. CT by touching her hip or pelvic area and grabbing her buttocks. Senior
Airman (SrA) CH confronted Appellant and told him to stop touching Mrs. CT.
1 Pursuant to the PTA, Appellant pleaded not guilty to five specifications of abusive
sexual contact in violation of Article 120, UCMJ, 10 U.S.C. § 920, but guilty to the
lesser-included offense of assault consummated by battery in violation of Article 128,
UCMJ, 10 U.S.C. § 928.
2 The PTA contained no Appendix A; thus, its terms were limited to the offer portion
of the agreement wherein the Government agreed to dismiss the greater offense in
each of the Article 120, UCMJ, specifications without any specific sentence limitation.
3 In a footnote, Appellant states that while he does not challenge the providence in-
quiry, he notes the specification of Charge II for assault consummated by a battery in
violation of Article 128, UCMJ, 10 U.S.C. § 928, fails to specifically allege all elements
of the offense. Since Appellant’s claim that the charge fails to state an offense was not
raised at trial, it is tested for plain error on appeal. United States v. Ballan,
71 M.J.
28, 34 (C.A.A.F. 2012); United States v. Girouard,
70 M.J. 5, 11 (C.A.A.F. 2011). The
specification, though perhaps inartfully worded, alleges all elements of the offense.
Appellant admitted in both the providence inquiry and the stipulation of fact that his
conduct served to meet all of the elements of the offense. We find no error, plain or
otherwise.
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United States v. Johnson, No. ACM 39016
Appellant pushed his chest against SrA CH’s body causing SrA CH to fall for-
ward from the force of the contact. Appellant then threatened to put SrA CH
“in the hospital.”
II. DISCUSSION
Appellant asserts that his sentence is inappropriately severe as he believes
the military judge did not adequately consider the mitigation evidence pre-
sented at trial. Appellant avers the military judge’s one-hour deliberation was
not enough time for her to properly consider the entirety of the sentencing ev-
idence. To support his claim, Appellant cites the 26 pages of character state-
ments and pictures he admitted at trial and the Prosecution’s sentencing evi-
dence consisting of a personal data sheet, two enlisted performance reports, a
record of nonjudicial punishment, and the stipulation of fact. Appellant asks
the court to approve only so much of the sentence that calls for confinement for
three months and reduction to the grade of E-1. We are not persuaded.
We review sentence appropriateness de novo. United States v. Lane,
64
M.J. 1, 2 (C.A.A.F. 2006). We “may affirm only such findings of guilty and the
sentence or such part or amount of the sentence, as [we find] correct in law and
fact and determine, on the basis of the entire record, should be approved.” Ar-
ticle 66(c), UCMJ, 10 U.S.C. § 866(c). “We assess sentence appropriateness by
considering the particular appellant, the nature and seriousness of the of-
fenses, the appellant’s record of service, and all matters contained in the record
of trial.” United States v. Anderson,
67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009).
Although we are accorded great discretion in determining whether a particular
sentence is appropriate, we are not authorized to engage in exercises of clem-
ency. United States v. Nerad,
69 M.J. 138, 146 (C.A.A.F. 2010).
The maximum authorized sentence for Appellant’s offenses was a dishon-
orable discharge, confinement for six years, forfeiture of all pay and allow-
ances, and reduction to the grade of E-1. Appellant negotiated a pretrial agree-
ment whereby the Government dismissed the greater offense in the five speci-
fications involving abusive sexual contact in violation of Article 120, UCMJ,
but imposed no sentence limitations. Thus, the approved sentence was clearly
within the discretion of the convening authority.
We have given individualized consideration to this Appellant, his conduct,
his military career and accomplishments, and the other relevant matters
within the record of trial. Appellant cites the numerous character letters and
his performance record to demonstrate sentence relief is warranted in his case.
While Appellant has a fairly good military record, the mitigating factors he
cites must be balanced against the seriousness of the offenses Appellant com-
mitted. Appellant repeatedly accosted two different victims over the course of
several months despite their clear signs his advances were unwanted. He also
3
United States v. Johnson, No. ACM 39016
assaulted and threatened to hospitalize a fellow Airman who intervened and
asked him to leave one of the victims alone. Additionally, the two victims pro-
vided poignant statements about the effects Appellant’s crimes had on them.
Despite Appellant’s claims otherwise, we find no evidence in the record demon-
strating the military judge failed to give appropriate consideration to the evi-
dence presented prior to sentencing Appellant. The military judge is presumed
to know the law and apply it correctly absent clear evidence to the contrary.
United States v. Bridges,
66 M.J. 246, 248 (C.A.A.F. 2008); United States v.
Erickson,
65 M.J. 221, 225 (C.A.A.F. 2007); United States v. Mason,
45 M.J.
483, 484 (C.A.A.F. 1997). We find the approved sentence is not inappropriately
severe.
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and the sentence are AFFIRMED.
FOR THE COURT
KURT J. BRUBAKER
Clerk of the Court
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