United States v. Lopez ( 2023 )

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 40161
________________________
UNITED STATES
Appellee
v.
George E. LOPEZ
Technical Sergeant (E-6), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 7 March 2023
________________________
Military Judge: Shad R. Kidd.
Sentence: Sentence adjudged on 12 June 2021 by GCM convened at Joint
Base San Antonio-Fort Sam Houston, Texas. Sentence entered by mili-
tary judge on 21 July 2021 and reentered on 25 August 2021: Dishonor-
able discharge, confinement for 9 years and 6 months, and reduction to
E-1.
For Appellant: Major Ryan S. Crnkovich, USAF; Major Alexandra K.
Fleszar, USAF; Major Eshawn R. Rawlley, USAF; Captain Samantha P.
Golseth, USAF; William E. Cassera, Esquire; Julie Caruso Haines, Es-
quire.
For Appellee: Lieutenant Colonel Thomas J. Alford, USAF; Major Mor-
gan R. Christie, USAF; Major Allison R. Gish, USAF; Major John P.
Patera, USAF; Major Brittany M. Speirs, USAF; Mary Ellen Payne, Es-
quire.
Before KEY, ANNEXSTAD, and GRUEN, Appellate Military Judges.
Judge ANNEXSTAD delivered the opinion of the court, in which Senior
Judge KEY and Judge GRUEN joined.
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United States v. Lopez, No. ACM 40161
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
ANNEXSTAD, Judge:
At a general court-martial, a panel of officer and enlisted members con-
victed Appellant, contrary to his pleas, of five specifications of assault consum-
mated by battery (Charge I); one specification of sexual assault (Charge II);
and one specification of child endangerment and two specifications of kidnap-
ping (Charge III), in violation of Articles 120, 128, and 134, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 920, 928, 934.1 Consistent with his
pleas, Appellant was found not guilty of one specification of communicating a
threat (Charge III), in violation of Article 134, UCMJ.2 The panel sentenced
Appellant to a dishonorable discharge, confinement for nine years and six
months, and reduction to the grade of E-1. The convening authority approved
the sentence in its entirety.
Appellant raises eight issues which we have reordered and reworded: (1)
whether Appellant’s convictions for four specifications of assault consummated
by battery (Specifications 1–4 of Charge I) and one specification of sexual as-
sault (Specification of Charge II) are legally and factually sufficient; (2)
whether the child endangerment specification (Specification 1 of Charge III)
failed to state an offense; (3) whether the record of trial is substantially incom-
plete; (4) whether Appellant was denied the effective assistance of counsel un-
der the Sixth Amendment;3 (5) whether the confinement portion of Appellant’s
sentence is inappropriately severe; (6) whether the military judge abused his
discretion by failing to give a partial lack of mental responsibility instruction
with regard to the child endangerment specification; (7) whether the Govern-
ment can prove beyond a reasonable doubt that the military judge’s failure to
instruct the panel that a guilty verdict must be unanimous was harmless; and
(8) whether Appellant’s conviction for child endangerment was legally and
1 All references to the punitive articles of the UCMJ are to the Manual for Courts-
Martial, United States (2016 ed.). Unless otherwise indicated, all other references to
the UCMJ and the Rules for Courts-Martial are to the Manual for Courts-Martial,
United States (2019 ed.).
2After findings, the military judge dismissed one specification of assault consummated
by a battery (Specification 5 of Charge I), in violation of Article 128, UCMJ, as an
unreasonable multiplication of charges, subject to Appellant’s conviction for sexual as-
sault (Specification of Charge II), in violation of Article 120, UCMJ, being affirmed
after appellate review.
3 U.S. CONST. amend. VI.
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United States v. Lopez, No. ACM 40161
factually sufficient.4 We also consider one additional issue: (9) whether Appel-
lant is entitled to relief due to unreasonable post-trial delay.
With respect to issues (3), (6), (7), and (8), we have carefully considered
Appellant’s contentions and find they do not require discussion or warrant re-
lief. See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987).
Finding no error that materially prejudiced a substantial right of Appel-
lant, we affirm the findings and sentence.
I. BACKGROUND
Appellant met AC5 in high school and the two married in 2008. Their sons
GL and NL were born in 2009 and 2011, respectively. They were 8 and 6 years
old at the time of the offenses. AC’s adult sister, GP, lived with the family in a
single-family house located in San Antonio, Texas. On the first floor were an
office and two bedrooms, one bedroom for Appellant and AC and the other for
GP. The boys’ rooms and a loft were located on the second floor.
The events leading to Appellant’s court-martial took place around 1 Janu-
ary 2018. At this time, Appellant and AC were having marital problems and
were discussing divorce. AC testified that at the time of the incidents she con-
sidered her marriage to be a “business-type relationship -- very distant,” in
which she and Appellant “fought a lot” and “mentioned divorce a lot.” The two
had not shared a bed for a couple of days due to an argument they had on AC’s
birthday.
On New Year’s Eve 2017, Appellant and AC continued to argue about her
birthday and other matters. Later in the evening, Appellant and GL attended
a New Year’s Eve party at a neighbor’s house, while AC remained at home with
NL, who was not feeling well. Appellant and GL returned from the party
around midnight and GL went upstairs to his bedroom. AC testified she was
angry that Appellant had been drinking alcohol. AC explained:
We had made this agreement that if he was going to drink, I
would be there because . . . when he came back from Turkey, he
started his [Post-Traumatic Stress Disorder (PTSD)] sessions,
and he was put on restricted work because driving triggered his
PTSD, as well as drinking. So, I was basically the one driving
4Appellant personally raises the eighth assignment of error pursuant to United States
v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
5By the time of trial, Appellant and AC had divorced. This opinion uses her initials at
the time of trial.
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around everywhere, and as far as drinking goes, we had this pact
where he would drink if I’m there.
AC then testified that she threw her wedding rings at Appellant and told
him that she was “done” with the marriage. In response, Appellant left the
house but returned around 0200 on 1 January 2018, at which point the couple
continued to argue. AC testified she left the house and “took a drive around the
block” as an attempt to deescalate the situation, but Appellant was gone when
she returned home. AC described being worried because she did not know
where Appellant was, so she attempted to find him by calling his phone, the
neighbor’s phone, looking around the house, and driving around the neighbor-
hood. Appellant returned to the house around 0615. AC was still awake, GP
had just left for work, and the boys were asleep. NL slept in AC’s bedroom on
the floor that night, as he was sick.
The couple continued to argue. Exhausted from being awake all night, AC
stated she eventually went to her bedroom to try and get some sleep. Appellant
came into the bedroom a short while later as AC was lying in bed and asked
her for her cell phone. Appellant became upset because AC had changed the
password to unlock her cell phone. She testified that Appellant started yelling
at her “like a drill sergeant” and “the next thing [she] kn[e]w” he was on top of
her with “his legs wrapped around [her] so he was squeezing [her] with his
legs” on her “abdomen” and “choking [her] with his arm” at the same time. AC
explained that Appellant practiced ju-jitsu and likened the episode to a ju-jitsu
“arm choke.” AC stated she felt pain while this was happening because Appel-
lant was squeezing her ribs with his legs and her throat with his arm, and she
felt like she could not breathe. She described trying to gasp for air and being
in disbelief that it was happening. AC testified Appellant finally stopped after
approximately 15 seconds because NL woke up and started crying. Appellant
told NL he was just “playing with mommy, and to go back to sleep,” but in-
structed AC to stay on the bed.
Appellant also remained in the bedroom and said they were going to have
a “family meeting,” so AC could “feel and learn the pain [she has] caused him
over the years.” AC then described how Appellant began to order her around.
She stated Appellant yelled at her to sit at various places in the room but if
she did not move fast enough or go to the correct place, he would charge at her,
grab her, and “body slam” her to the floor with his hands. She indicated that
this happened multiple times. After some time, AC asked Appellant “why are
you doing this,” but their son GL entered the bedroom before Appellant could
respond. After GL entered the room, Appellant locked the bedroom door and
told GL that they were “having a family meeting.” AC testified Appellant then
answered her question, stating “that’s a good question. I’m not really sure, but
how does murder/suicide sound to you?” AC asked Appellant to consider the
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United States v. Lopez, No. ACM 40161
boys, but he replied “[O]h, it doesn’t matter. They’re little. They won’t remem-
ber this anyway.”
Appellant took AC’s phone and the boys’ iPads and moved the electronics
to the first-floor office. AC testified Appellant pulled the Wi-Fi cord out of the
wall while in the office. When Appellant returned, AC began to plead with him
to leave, and reminded him that he was close to retirement. She stated it ap-
peared that Appellant was going to leave, when suddenly he “snapped,” pushed
her to the bed, and strangled her from behind. AC described how GL, who was
now crying, asked Appellant to stop. Appellant did, and then sat in the corner
of the bedroom. AC then asked to go to the bathroom, but Appellant told her
that she could “just pee on [her]self or pee on the bed and that it didn’t matter
because [she] w[as]n’t going to make it out that day.”
NL was able to escape the bedroom at some point, but Appellant ran after
him, brought him back into the room, and warned him not to leave again or
else he would get physical with him. AC testified that Appellant continued to
order her around, telling her to “[s]it here. No, don’t sit there. Sit there,” and
that he “body slammed” her when he thought she was not complying. She also
stated Appellant continued to tell the boys that he was “playing with mom” but
she pleaded with the boys to leave the room, openly disputing Appellant’s
statement by saying things like “[n]o, he’s not playing with me. He’s hurting
mommy.” Both boys fled the room and Appellant chased them—at which point
AC escaped the room, went to the backyard in her pajamas, and screamed for
help. AC testified that Appellant found her in the backyard, grabbed her hair,
and shoved her towards the fence—causing her to hit the fence with the side
of her face and fall to the ground. She then described how Appellant grabbed
her, carried her to the living room, punched her in the face twice, and directed
her back to the bedroom.
Appellant then brought both boys back to the bedroom. AC stated that GL
was “shaking and crying” while Appellant was drinking water and yelling at
her not to tell the boys to leave or he would get physical with them. As Appel-
lant was yelling at AC, he vomited on her and refused to allow her to change
clothes. AC testified Appellant then told her that he was “suddenly curiously
aroused,” and told the boys to go into the closet. They complied.
After putting the boys in the closet, Appellant proceeded to get on top of AC
and ordered her to kiss him. When she refused, he “slapp[ed her] around.” AC
testified she tried moving around to get Appellant off her but Appellant con-
tinued trying to kiss her and remove her pajama pants. AC testified that she
told Appellant “[n]o” and “[y]ou don’t have my permission.” As she was trying
to push Appellant off, he pinned her down and told her that if she kept fighting
him, “he was going to start throwing punches again.” She then described how
Appellant got off her, took off his pants, and told her “[w]e’re not going to have
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United States v. Lopez, No. ACM 40161
sex how we typically have sex.” Appellant then pulled AC’s pants off and un-
successfully attempted to have anal sex with her, something they had never
done before. She testified Appellant penetrated her vagina with his penis until
he ejaculated in her vagina. After Appellant ejaculated, he dressed himself and
AC. AC asked if she could take a shower but Appellant told her no.
AC testified at this point she was scared and really thought Appellant was
going to kill her and himself. After being released from the closet by Appellant,
the boys joined AC on the bed. According to AC, Appellant was frustrated the
boys were asking questions and kept referring to a “family meeting”—causing
AC to fear that Appellant was going to harm them. AC then described trying
to open the bedroom window to escape, but Appellant “smack[ed] her arms”
and asked if she needed “a reminder again of who’s in charge.” Appellant then
grabbed AC, threw her on the bed, and again strangled her with his arm in the
same manner as he had earlier.
Appellant, AC, and the boys went to the kitchen around 1500 hours. AC’s
sister, GP, returned from work while Appellant was cooking food. Appellant
asked for GP’s cell phone as soon as she walked into the house. GP complied,
and asked AC if something was wrong. Sensing something was not right, GP
attempted to leave the house, but Appellant grabbed her and “body slammed”
her to the floor before she could exit. AC stated that GP was “screaming,” “in
shock,” and was “really emotional and scared.” Appellant then instructed AC
and GP to sit on bar stools in the kitchen. Appellant returned to cooking food
and told GP that they were going to have a “family meeting.” At Appellant’s
court-martial, AC explained that Appellant was holding a kitchen knife in his
hand to cut meat and was “kind of taunting [them] with the knife.” Over the
next several hours, Appellant continued to mention a murder/suicide plan, re-
strict everyone’s phone access, and refused to allow anyone to leave.
Around 1800 hours, Appellant began making phone calls to his mother and
his brother, at which time he allowed GP to go upstairs with the boys. Shortly
thereafter, Appellant took prescription muscle relaxers in a suicide attempt.
Appellant told his mother “he had done some really bad things to [AC], and
that he was probably going to jail.” Appellant’s brother, EL, testified that he
received a phone call from Appellant late that afternoon—Pacific Standard
Time—during which Appellant talked about suicide and “going to jail for 20
years.” EL also stated that AC interrupted the call and told Appellant to vomit;
EL described hearing Appellant vomit. Appellant eventually gave AC her
phone and she immediately called 911 at 1835 hours.
Deputy PM and Deputy DP of the Bexar County Sheriff’s Office responded
to the 911 call. When they arrived at Appellant’s house they found him talking
on his cell phone outside near his home. Deputy PM exited the patrol car, Ap-
pellant ended his phone call, and Deputy PM asked Appellant, “What’s going
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on?” According to the deputies, Appellant stated he “did it” and he “did some
cruel and unusual things.” Deputy PM asked Appellant if he assaulted and
sexually assaulted his wife to which Appellant replied “yes.” After Deputy PM
detained Appellant and placed him in the police car, he entered the house
where he found AC “crying” and “terrified.” Another law enforcement officer,
Patrol Sergeant AV, testified that when she made contact with AC in the house
she was “distraught, very emotional.”
The deputies took photographs of AC’s injuries. AC had a cut lip from being
shoved into the fence earlier, her lip and eyes were slightly swollen, and she
had a scratch on her foot from running in the backyard shoeless while calling
for help. With regard to GP, the deputies observed her in obvious discomfort
due to a leg injury. Deputy PM stated Appellant, AC, GP, and the boys were
taken to a local medical center for evaluation.
While at the medical center, a sexual assault forensic examination was con-
ducted on Appellant and on AC. During trial, an expert testified Appellant’s
DNA was found in and around AC’s vagina and underwear, and AC’s DNA was
found on Appellant’s penis.
At trial, AC and both boys testified Appellant “locked” them in the bedroom.
GL also testified he witnessed Appellant on top of AC, choke her in the bed-
room, punch her, push her, “body slam” her, and vomit on her—all on the day
relevant to the charged offenses. He described for the members that Appellant
yelled and “cussed” at AC while this was happening. GL also remembered AC
running to the backyard and Appellant chasing her down. He confirmed Ap-
pellant kept talking about a “family meeting” and that Appellant instructed
both him and his brother to get in the closet. GL described being scared,
shocked, and confused the entire day.
The Government also presented testimony from a digital forensics expert
who reviewed AC’s phone records. The expert described a complete lack of
phone activity for the entire day on 1 January 2018, until AC made the 911
call at 1835. Additionally, the Government offered testimony and health rec-
ords from the medical exams conducted on AC and GP following the incidents.
The records detailed that AC had bruising on both arms, which was confirmed
by testimony as consistent with being grabbed. The records also detailed that
GP had bruising on her right outer hip and on the left side of her lower back.
At trial, the Government also introduced interviews from both boys which were
conducted by investigators of the local Texas Department of Family and Pro-
tective Services Agency (DFPS) within days of the incident. During one inter-
view, GL told DFPS he saw Appellant “hitting, punching; cussing [his] mom
out” and “[b]ody slamming her.” During another interview, NL told DFPS that
Appellant locked him, his brother, and AC in a room, and that the police came
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United States v. Lopez, No. ACM 40161
to the house because Appellant “was almost going to kill [his] mom. Because
[Appellant] was going to kill [his] mom.”
The panel of officer and enlisted members found Appellant guilty of five
specifications of assault consummated by a battery, one specification of sexual
assault, one specification of child endangerment, and two specifications of kid-
napping.
II. DISCUSSION
A. Legal and Factual Sufficiency
Appellant contends that the evidence is legally and factually insufficient to
support the findings of guilty on the first four specifications of the assault
charge and the sexual assault charge. Specifically, Appellant argues: (1) AC
was not a credible witness; (2) AC gave inconsistent accounts of the incidents;
(3) AC only agreed to testify after she learned “she could get money from the
state government;” (4) the physical evidence did not support the findings; (5)
Deputy DP did not hear Appellant say he did “cruel and unusual things” to AC;
and (6) the investigation was flawed. We are not persuaded by any of Appel-
lant’s contentions and find that no relief is warranted.
1. Law
Issues of legal and factual sufficiency are reviewed de novo. United States
v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). “Our assessment of legal and
factual sufficiency is limited to evidence produced at trial.” United States v.
Rodela, 82 M.J. 521, 525 (A.F. Ct. Crim. App. 2021) (citing United States v.
Dykes, 38 M.J. 270, 272 (C.M.A. 1993)), rev. denied, 82 M.J. 312 (C.A.A.F.
2022).
“The test for legal sufficiency is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” United
States v. Robinson, 77 M.J. 294, 297–98 (C.A.A.F. 2018) (quoting United States
v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017)). “The term reasonable doubt, how-
ever, does not mean that the evidence must be free from conflict.” United States
v. Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (citing United States v.
Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986)), aff’d, 77 M.J. 289 (C.A.A.F. 2018).
“[I]n resolving questions of legal sufficiency, we are bound to draw every rea-
sonable inference from the evidence of record in favor of the prosecution.”
United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citations omitted).
As a result, “[t]he standard for legal sufficiency involves a very low threshold
to sustain a conviction.” United States v. King, 78 M.J. 218, 221 (C.A.A.F. 2019)
(alteration in original) (citation omitted), cert. denied, __ U.S. __, 139 S. Ct.
1641 (2019). The test for legal sufficiency “gives full play to the responsibility
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United States v. Lopez, No. ACM 40161
of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evi-
dence, and to draw reasonable inferences from basic facts to ultimate facts.”
United States v. Oliver, 70 M.J. 64, 68 (C.A.A.F. 2011) (internal quotation
marks omitted) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
“The test for factual sufficiency is ‘whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses,’ [this] court is ‘convinced of the [appellant]’s guilt beyond a rea-
sonable doubt.’” United States v. Reed, 54 M.J. 37, 41 (C.A.A.F. 2000) (quoting
United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987)). “In conducting this
unique appellate role, we take ‘a fresh, impartial look at the evidence,’ applying
‘neither a presumption of innocence nor a presumption of guilt’ to ‘make [our]
own independent determination as to whether the evidence constitutes proof
of each required element beyond a reasonable doubt.’” Wheeler, 76 M.J. at 568(alteration in original) (quoting Washington, 57 M.J. at 399). This court’s re-
view of the factual sufficiency of evidence for findings is limited to the evidence
admitted at trial. See Article 66(d), UCMJ, 10 U.S.C. § 866(d); United States v.
Beatty, 64 M.J. 456, 458 (C.A.A.F. 2007) (citations omitted).
In order to find Appellant guilty of assault consummated by battery, in vi-
olation of Article 128, UCMJ, as alleged in Specifications 1 through 4 of Charge
I, the panel members were required to find the following two elements beyond
a reasonable doubt: (1) that Appellant did bodily harm to AC at or near San
Antonio, Texas, on or about 1 January 2018; and (2) that the bodily harm was
done with unlawful force or violence. See Manual for Courts-Martial, United
States (2016 ed.) (2016 MCM), pt. IV, ¶ 54.b.(2). Specification 1 alleged that on
divers occasions Appellant unlawfully strangled AC on the neck with his fore-
arm.6 Specification 2 alleged that Appellant unlawfully grabbed and pushed
AC down to the ground with his hands. Specification 3 alleged that Appellant
unlawfully pushed AC on the head with his hand. Specification 4 alleged that,
on divers occasions, Appellant unlawfully struck AC in the face with his hand.
In order to find Appellant guilty of sexual assault, in violation of Article
120, UCMJ, as alleged, the panel members were required to find the following
beyond a reasonable doubt: (1) that at or near San Antonio, Texas, on or about
1 January 2018, Appellant committed a sexual act upon AC by penetrating
AC’s vulva with his penis; and (2) that Appellant did so by causing bodily harm
to AC by penetrating AC’s vulva with his penis without AC’s consent. See 2016
MCM, pt. IV, ¶ 45.b.(3)(b).
6 The panel members excepted the word “forearm” and substituted the words “upper
extremity” and found Appellant not guilty of the excepted word and guilty of the sub-
stituted words.
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Article 120, UCMJ, explains consent as:
a freely given agreement to the conduct at issue by a competent
person. An expression of lack of consent through words or con-
duct means there is no consent. Lack of verbal or physical re-
sistance or submission resulting from the use of force, threat of
force, or placing another person in fear does not constitute con-
sent. A current or previous dating or social [relationship] . . . by
itself . . . shall not constitute consent.
10 U.S.C. § 920(g)(8)(A).
2. Analysis
Our review finds that the Government introduced convincing evidence for
a rational factfinder to find Appellant guilty of assaulting and sexually assault-
ing AC beyond a reasonable doubt. Most significant was the testimony of AC
who described with clarity the almost 12-hour incident on 1 January 2018. She
described, in detail, how Appellant used a ju-jitsu “arm choke” to strangle her
on three occasions, grabbed her, “body slammed” her to the floor, and pushed
her on her head with his hands. AC also testified that Appellant forcefully pen-
etrated her vulva with his penis without her consent until he ejaculated. We
find AC’s testimony sufficient, without additional evidence, to support the
charged offenses. As an evidentiary standard, proof beyond a reasonable doubt
does not require more than one witness to credibly testify. See United States v.
Rodriguez-Rivera, 63 M.J. 372, 383 (C.A.A.F. 2006) (explaining testimony of a
single witness may satisfy the Government’s burden to prove every element of
a charged offense beyond a reasonable doubt).
That stated, we also find that AC’s testimony was sufficiently supported by
the physical evidence introduced at trial. First, we note evidence showed Ap-
pellant’s DNA was present in and around AC’s vagina and her underwear, and
AC’s DNA was present on Appellant’s penis. This evidence specifically sup-
ports AC’s testimony that she was sexually assaulted. Second, the Government
presented the medical records from the exams conducted on both AC and GP
following the events on 1 January 2018. These medical reports detail numerous
injuries on both women that were consistent with the assaults described by AC
and GP at trial. Furthermore, the Government supported AC’s testimony with
phone records that showed that AC did not use her phone from approximately
0600 hours until she called 911 at 1835 hours on the day of the incident. Fi-
nally, we note that the testimony from GL, NL, and GP corroborated most, if
not all, of the testimony provided by AC.
We also note that Appellant’s own inculpatory statements to the deputies,
and his expressions of consciousness of guilt to his mother and brother, gener-
ally support AC’s testimony at trial. Here the record details that Appellant told
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United States v. Lopez, No. ACM 40161
the detectives he “did it,” and he “did cruel and unusual things” while confirm-
ing to the detectives that he assaulted and sexually assaulted AC. Further-
more, the record also demonstrated that Appellant told his mother “he had
done some really bad things to [AC], and that he was probably going to jail.”
Finally, Appellant’s brother testified Appellant told him that he was “going to
jail for 20 years.”
As at trial, Appellant again questions AC’s credibility and motives, and
highlights a number of inconsistencies in her description of the assaults during
the subsequent investigation. We address Appellant’s most significant argu-
ments below.
First, Appellant argues that AC was not a credible witness because she
continued to carry on a relationship with Appellant for months following the
events of 1 January 2018. Appellant contends because of this she must have
fabricated the allegations. AC addressed her post-assault decisions during
trial, and explained that in the nine years leading up to 1 January 2018, Ap-
pellant was never abusive to her and that she tried to reconcile with Appellant
out of love and the family that they created together. We find that a rational
factfinder could reasonably conclude AC’s decision to continue a relationship
with her husband despite the physical and sexual abuse did not materially un-
dermine her trial testimony.
As for her motives to testify, Appellant contends AC only agreed to testify
against Appellant after she learned that she could be compensated for partici-
pating in Appellant’s trial through a state crime-victim compensation program.
We again find a rational factfinder could reasonably conclude that this poten-
tial motive did not materially undermine AC’s trial testimony. Specifically, we
note there was evidence presented at trial that demonstrated AC immediately
called 911 when she had the chance and immediately identified Appellant as
the perpetrator. Furthermore, the record demonstrates that AC was “dis-
traught,” “very emotional,” “crying,” and “frantic” when the detectives arrived
at the house.
Finally, Appellant argues that AC’s trial testimony differed from what she
told the police and the family advocacy personnel. For example, Appellant con-
tends that AC gave different accounts about where she was when Appellant
took her cell phone, about where Appellant placed her phone and the boys’ de-
vices, and about where she was when the sexual assault occurred. We find that
a rational factfinder could reasonably find that the examples cited by Appel-
lant were relatively insignificant, especially when considered in conjunction
with AC’s detailed testimony, the testimony from other eyewitnesses, includ-
ing GL, NL, and GP, the physical evidence presented at trial, and Appellant’s
own admissions which all generally corroborate AC’s testimony.
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We conclude that viewing the evidence produced at trial in the light most
favorable to the Prosecution, a rational trier of fact could have found the es-
sential elements of assault consummated by battery and sexual assault beyond
a reasonable doubt. See Robinson, 77 M.J. at 297−98. Furthermore, after
weighing all the evidence in the record of trial and making allowances for not
having personally observed the witnesses, we are ourselves convinced of Ap-
pellant’s guilt beyond a reasonable doubt. See Reed, 54 M.J. at 41.
B. Failure to State an Offense
Appellant contends that the child endangerment specification failed to
state an offense. Specifically, Appellant argues the specification, as drafted,
did not specify whether the alleged child endangerment was by design or cul-
pable negligence. Appellant asks that we dismiss the specification and reassess
his sentence. We find no prejudice to Appellant and conclude that no relief is
warranted.
1. Additional Background
Specification 1 of Charge III alleged a child endangerment offense in viola-
tion of Article 134, UCMJ. The specification reads that Appellant,
at or near San Antonio, Texas, on or about 1 January 2018, was
responsible for the care of his two sons, [GL] and [NL], children
under the age of 16 years, and did endanger their welfare by
locking them in a room while he assaulted their mother, [AC], in
their presence, and that such conduct was of a nature to bring
discredit upon the armed forces.
In order to find Appellant guilty of child endangerment, in violation of Ar-
ticle 134, UCMJ, as alleged, the panel members were required to find the fol-
lowing four elements beyond a reasonable doubt: (1) that at or near San Anto-
nio, Texas, on or about 1 January 2018, Appellant had a duty for the care of
his two sons, GL and NL; (2) that GL and NL were under the age of 16 years;
(3) that Appellant endangered GL and NL’s welfare through culpable negli-
gence by locking them in a room while he assaulted AC, in their presence; and
(4) that under the circumstances, such conduct was of a nature to bring dis-
credit upon the armed forces. See 2016 MCM, pt. IV, ¶ 68a.b.
On 14 January 2021, Appellant’s trial defense counsel requested a bill of
particulars from the Government seeking clarification on, inter alia, “[w]hen is
the alleged child endangerment in relation to the alleged sexual assault?” The
Government provided the following:
The child endangerment begins when [Appellant] puts the chil-
dren in the bedroom and keeps them their [sic] against their will.
This is evidenced by [GL]’s fear and desire to call 911 and [NL]’s
12
United States v. Lopez, No. ACM 40161
action of running outside to the neighbors to get help. The child
endangerment continued through to when [Appellant] put the
boys in the closet while he sexually assaulted AC. It continued
during Charge I, Spec[ification] 6, when [Appellant] grabbed and
pushed [GP] to the ground in front of the boys.
In response to another question in the bill of particulars request positing
“[w]hat act or acts of assault are alleged as part of effectuating the charged
child endangerment,” the Government responded, “Charge I, Specifications 1,
2, 4, and 5.”
The Government provided proposed instructions to the Defense on 31 May
2021 pursuant to the military judge’s scheduling order. Appellant’s trial de-
fense counsel returned the proposed instructions to the Government with
“thoughts and edits.” The proposed instructions made clear the Government
believed that Appellant’s offense was a culpable negligence crime and not a
crime by design. The Government then filed the proposed instructions with the
military judge. During an Article 39(a), UCMJ, 10 U.S.C. § 839(a), session on
7 June 2021, Appellant’s trial defense counsel objected to the proposed instruc-
tions and moved to dismiss the child endangerment specification for failure to
state an offense because the specification did not specifically allege a mens rea.
The Defense argued that the specification failed to provide proper notice to
Appellant as to whether he needed to defend against a mens rea under a cul-
pable negligence theory or to defend against a mens rea under a “by design”
theory. Appellant’s trial defense counsel further argued the mens rea is an el-
ement of the offense that must be specifically charged, and the Government’s
omission of the element prejudiced Appellant insofar as it raised double jeop-
ardy concerns. In essence, the Defense argued that by not specifically charging
Appellant with committing the offense by culpable negligence, he could be tried
at some future date for the same offense under a “by design” theory.
The Government opposed the motion, arguing both the Government’s an-
swer to the Defense’s bill of particulars request and the proposed instructions
made clear that the Government was proceeding on the mens rea of culpable
negligence. The Government added there was no prejudice to Appellant be-
cause the maximum sentence for child endangerment by culpable negligence
was much lower than the maximum sentence for child endangerment by de-
sign. Finally, the Government argued that child endangerment by culpable
negligence is a general intent crime and, therefore, the mens rea was neces-
sarily implied.
The military judge denied Appellant’s motion to dismiss the specification
for failure to state an offense. The military judge concluded that the child en-
dangerment specification: (1) alleged every element of the offense “expressly or
by necessary implication;” (2) “include[d] the essential elements of the offense;”
13
United States v. Lopez, No. ACM 40161
(3) provided notice of the offense; and (4) protected Appellant “against double
jeopardy for child endangerment by culpable negligence against his sons by
assaulting their mother in their presence.” Trial defense counsel did not re-
quest reconsideration, and conceded, “I think culpable negligence would seem
to be the appropriate mens rea.”
Subsequently, the military judge instructed the members that the third el-
ement of child endangerment, in violation of Article 134, UCMJ, was that Ap-
pellant “endangered [GL’s and NL’s] welfare through culpable negligence by
locking them in a room while he assaulted their mother, [AC], in their pres-
ence.” The military judge also provided a definition of culpable negligence.
2. Law
Whether a specification states an offense is a question of law that we review
de novo. United States v. Ballan, 71 M.J. 28, 33 (C.A.A.F. 2012).
The Sixth Amendment requires that an accused “be informed of the nature
and cause of the accusation against him.” United States v. Turner, 79 M.J. 401,
403 (C.A.A.F. 2020) (internal quotation marks omitted) (quoting U.S. CONST.
amend. VI).
“[T]he Fifth Amendment[7] provides that no person shall be deprived of life,
liberty, or property, without due process of law, and no person shall be subject
for the same offen[s]e to be twice put in jeopardy.” Id. (internal quotation
marks omitted) (quoting U.S. CONST. amend. V).
[W]hen an accused servicemember is charged with an offense at
court-martial, each specification will be found constitutionally
sufficient only if it alleges, either expressly or by necessary im-
plication, every element of the offense, so as to give the accused
notice [of the charge against which he must defend] and protect
him against double jeopardy.
Id. (second alteration in original) (internal quotation marks omitted) (quoting
United States v. Dear, 40 M.J. 196, 197 (C.M.A. 1994)).
“[W]hen [a] charge and specification are first challenged at trial we read
the wording . . . narrowly and will only adopt interpretations that hew closely
to the plain text.” Id. (alterations and omission in original) (emphasis omitted)
(quoting United States v. Fosler, 70 M.J. 225, 230 (C.A.A.F. 2011). Therefore,
“we will consider only the language contained in the specification when decid-
ing whether it properly states the offense.” Id. (citing United States v. Sutton,
68 M.J. 455 (C.A.A.F. 2010)).
7 U.S. CONST. amend. V.
14
United States v. Lopez, No. ACM 40161
“If a specification fails to state an offense, the appropriate remedy is dis-
missal of that specification unless the Government can demonstrate that this
constitutional error was harmless beyond a reasonable doubt.” Id. at 403–04
(citing United States v. Humphries, 71 M.J. 209, 213 n.5 (C.A.A.F. 2012)).
3. Analysis
We need not determine whether the child endangerment specification at
issue failed to state an offense because Appellant did not suffer any prejudice—
“even when the stringent constitutional standard of harmlessness beyond a
reasonable doubt is applied.” Id. at 407 (citing Humphries, 71 M.J. at 213 n.5).
Here, the record demonstrates that trial defense counsel requested a bill of
particulars on the same day charges were preferred. Specifically concerning
the offense of child endangerment, trial defense counsel did not seek clarifica-
tion on whether the Government charged Appellant with child endangerment
by culpable negligence or design. On the contrary, the only information trial
defense counsel requested with respect to this charge concerned the “act or
acts” that constituted the offense. The record shows trial defense counsel did
not raise the issue of mens rea until just prior to Appellant’s entry of pleas.
The record also demonstrates Appellant was on actual notice of the Gov-
ernment’s mens rea theory of culpable negligence as early as 31 May 2021.
Here, the Government’s proposed instructions, which were submitted seven
days before the start of the trial, clearly indicated that the Government was
pursuing the mens rea of culpable negligence. Subsequently, the Government
reiterated its position that it believed “this is a culpable negligence crime and
not a crime by design” on the first day of trial and prior to the entry of pleas.
The trial counsel also later confirmed: “The [G]overnment views this and an-
ticipates the facts will present themselves as a culpable negligent [sic] theory,
and the [G]overnment does not have any evidence that this was the greater
offense of by design.” We note that after trial defense counsel moved to dismiss
the specification for failure to state an offense, they did not request a ruling
from the military judge on the motion prior to presentation of evidence or dis-
agree with Government’s assertion. Accordingly, the military judge issued his
ruling after the Government had rested their case on the fourth day of trial.
We also note that after the military judge issued his ruling, trial defense coun-
sel did not request reconsideration, and conceded, “I think culpable negligence
would seem to be the appropriate mens rea.”
Additionally, we note the military judge provided findings instructions
which informed the members that the third element of the child endangerment
specification was Appellant “endangered [GL’s and NL’s] welfare through cul-
pable negligence by locking them in a room while he assaulted their mother,
[AC], in their presence.” The military judge then provided the members with a
15
United States v. Lopez, No. ACM 40161
definition of culpable negligence. The record also demonstrates trial counsel
argued Appellant’s culpable disregard for his sons’ welfare during closing ar-
gument:
He endangered their welfare through culpable negligence by
locking them in a room and assaulting their mother within their
presence. They told you about needing to get out and get help.
They even told you about running to get help. They knew it was
not right . . . . This is child endangerment.
We find the record void of any instance where trial defense counsel appears
misled, or discussed, presented, or argued to the members the specific intent
offense of child endangerment by design.
When we consider the facts of this case, we find no basis to conclude Appel-
lant would have handled his defense any differently, the result of the court-
martial would have been different, or that Appellant would have been provided
any additional protection against double jeopardy if the Government had spe-
cifically listed “culpable negligence” in the specification on the charge sheet. In
fact, Appellant did not allege in his assignments of error brief to this court that
he would have done anything differently, has not pointed to any alterations in
strategy or to different defenses he would have raised, and did not suggest it
affected the way the Defense approached his case. Finally, we conclude that
Appellant was sufficiently protected against double jeopardy for two reasons:
(1) the gravamen of the child endangerment is already captured by Appellant’s
conviction; and (2) Appellant cannot be tried again for the same conduct be-
cause child endangerment by culpable negligence is a lesser-included offense
of child endangerment by design. See United States v. Rice, 80 M.J. 36, 44
(C.A.A.F. 2020) (“Whatever the sequence may be, the Fifth Amendment forbids
successive prosecution and cumulative punishment for a greater and lesser in-
cluded offense.”; see also United States v. Hudson, 59 M.J. 357, 358 (C.A.A.F.
2004) (“The Fifth Amendment protection against double jeopardy provides that
an accused cannot be convicted of both an offense and a lesser-included of-
fense.” (Citations omitted).). Accordingly, we find Appellant suffered no preju-
dice and conclude that any error in the drafting of the specification was harm-
less beyond a reasonable doubt.
C. Claim of Ineffective Assistance of Counsel
Appellant contends he received ineffective assistance from his trial defense
counsel. Specifically, Appellant asserts his counsel were deficient in that they:
(1) failed to retain an expert consultant in PTSD and failed to offer any evi-
dence of Appellant’s PTSD diagnosis either during trial or sentencing proceed-
ings; (2) failed to investigate and litigate whether AC waived her attorney-cli-
ent privilege with her special victims’ counsel (SVC); (3) failed to argue for an
16
United States v. Lopez, No. ACM 40161
instruction on partial lack of mental responsibility, and therefore waived it;
and (4) failed to present evidence during sentencing proceedings of Appellant’s
loss of retirement.8 Appellant requests that we set aside and dismiss the find-
ings. We disagree with Appellant’s contention that he received ineffective as-
sistance of counsel and find no relief is warranted.
1. Additional Background
On 21 December 2022, we ordered Appellant’s trial defense counsel, Major
(Maj) AA and Captain (Capt) TO, to provide responsive declarations to address
Appellant’s ineffective assistance of counsel claims.9 We have also considered
whether a post-trial evidentiary hearing is required to resolve any factual dis-
putes between Appellant’s assertions and his trial defense team’s assertions.
See United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997); United States v.
DuBay, 37 C.M.R. 411, 413 (C.M.A. 1967) (per curiam). We find a hearing un-
necessary to resolve Appellant’s claims.
2. Law
The Sixth Amendment guarantees an accused the right to effective assis-
tance of counsel. United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001). In
assessing the effectiveness of counsel, we apply the standard set forth in Strick-
land v. Washington, 466 U.S. 668, 687 (1984), and begin with the presumption
of competence announced in United States v. Cronic, 466 U.S. 648, 658 (1984).
See Gilley, 56 M.J. at 124 (citing United States v. Grigoruk, 52 M.J. 312, 315
(C.A.A.F. 2000)). We review allegations of ineffective assistance de novo.
United States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011) (citing United States
v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009)).
We utilize the following three-part test to determine whether the presump-
tion of competence has been overcome:
8 Appellant also advances a cumulative error argument and cites to a memorandum
from one of Appellant’s trial defense counsel, Captain (Capt) TO, which was included
with Appellant’s clemency submission. In the memorandum, Capt TO suggested that
some of her decisions might now be viewed as “deficient” and “prejudicial” to Appellant.
We do not read this clemency submission as an admission of deficient performance,
but rather an introspective look on the trial itself, which as she wrote are always “ripe
for reflection.” We note this conclusion is supported by declarations submitted by both
trial defense counsel to this court which rebut Appellant’s claims that they were inef-
fective and provided deficient performance. Therefore, Appellant is not entitled to any
relief under the cumulative error argument.
9 Because the issue was raised in the record but was not fully resolvable by those ma-
terials, we may consider the declarations submitted by trial defense counsel consistent
with United States v. Jessie, 79 M.J. 437, 444 (C.A.A.F. 2020).
17
United States v. Lopez, No. ACM 40161
1. Are appellant’s allegations true; if so, “is there a reasonable
explanation for counsel’s actions”?
2. If the allegations are true, did defense counsel’s level of advo-
cacy “fall measurably below the performance . . . [ordinarily ex-
pected] of fallible lawyers”?
3. If defense counsel was ineffective, is there “a reasonable prob-
ability that, absent the errors,” there would have been a differ-
ent result?
Id. (alterations in original) (quoting United States v. Polk, 32 M.J. 150, 153
(C.M.A. 1991)). The burden is on an appellant to demonstrate both deficient
performance and prejudice. United States v. Datavs, 71 M.J. 420, 424 (C.A.A.F.
2012) (citation omitted). An appellant overcomes the presumption of compe-
tence only when he shows there were “errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amend-
ment.” Strickland, 466 U.S. at 687.
“Defense counsel do not perform deficiently when they make a strategic
decision to accept a risk or forego a potential benefit, where it is objectively
reasonable to do so.” Datavs, 71 M.J. at 424 (citing Gooch, 69 M.J. at 362–63)
(additional citation omitted). In reviewing the decisions and actions of trial de-
fense counsel, this court does not second guess strategic or tactical decisions.
See United States v. Morgan, 37 M.J. 407, 410 (C.M.A. 1993) (citations omit-
ted). It is only in those limited circumstances where a purported “strategic” or
“deliberate” decision is unreasonable or based on inadequate investigation that
it can provide the foundation for a finding of ineffective assistance. See United
States v. Davis, 60 M.J. 469, 474 (C.A.A.F. 2005).
This court does “not measure deficiency based on the success of a trial de-
fense counsel’s strategy, but instead examine[s] ‘whether counsel made an ob-
jectively reasonable choice in strategy’ from the available alternatives.” United
States v. Akbar, 74 M.J. 364, 379 (C.A.A.F. 2015) (quoting United States v.
Dewrell, 55 M.J. 131, 136 (C.A.A.F. 2001)). For this reason, defense counsel
receive wide latitude in making tactical decisions. Cullen v. Pinholster, 563
U.S. 170, 195 (2011) (citing Strickland, 466 U.S. at 689). This also applies to
trial defense counsel’s strategic decisions. Morgan, 37 M.J. at 410. “[S]trategic
choices made by trial defense counsel are virtually unchallengeable after thor-
ough investigation of the law and the facts relevant to the plausible options.”
Akbar, 74 M.J. at 371 (internal quotation marks and citation omitted.)
In making this determination, courts must be “highly deferential” to trial
defense counsel and make every effort “to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the time.” Strickland,
18
United States v. Lopez, No. ACM 40161
466 U.S. at 689. Moreover, “[t]he likelihood of a different result must be sub-
stantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011)
(citation omitted).
3. Analysis
a. PTSD
Appellant first claims that his trial defense counsel were ineffective by fail-
ing to retain an expert consultant in PTSD. We find Appellant’s contention is
not supported by the record. On 14 January 2021, trial defense counsel re-
quested the convening authority appoint Dr. KG, a board-certified forensic psy-
chologist. Maj AA’s declaration stated that request specifically identified Ap-
pellant’s “severe PTSD and combat[-]related mental health issues” as bases for
the expert request. Subsequently, the convening authority approved the re-
quest. Maj AA provided that Dr. KG “spoke fluently” on the topic of PTSD.
Since this portion of Appellant’s claim is not supported by the record, we find
no basis to support Appellant’s claim that his trial defense counsel were inef-
fective for failing to retain an expert consultant in PTSD.
Next, Appellant argues his trial defense counsel were deficient for not in-
troducing evidence of his PTSD in findings “to rebut evidence that Appellant
had the specific intent necessary for the child endangerment specification.”
Here, Appellant was charged with child endangerment by culpable negligence,
which is a general intent offense. Therefore, as charged, the defense of partial
mental responsibility was not available to Appellant. See United States v.
Handy, 48 M.J. 590, 593 (A.F. Ct. Crim. App. 1998) (“As for partial mental
responsibility, appellant’s absence offense was only a general intent crime.
Consequently, the concept of partial mental responsibility was not a player for
that offense.”).
However, even if it were an available defense, Appellant’s trial defense
counsel provided reasonable explanations for their decision not to present evi-
dence concerning Appellant’s PTSD. Maj AA stated in his declaration that they
were aware of Appellant’s PTSD and had reviewed 1,664 pages of Appellant’s
mental health records. He also stated he had access to and reviewed the “long
form” report concerning Appellant’s formal inquiry into his mental capacity or
mental responsibility under Rule for Courts-Martial 706. Maj AA also de-
scribed multiple discussions with Dr. KG between 12 March 2020 and 12 Jan-
uary 2021 regarding the possibility of introducing evidence of Appellant’s
PTSD during trial. He stated Dr. KG firmly advised him to “avoid introducing
evidence that would result in production of [Appellant]’s mental health records
to the [P]rosecution.” Maj AA also discussed that on 27 April 2021, a second
inquiry concerning Appellant’s mental capacity and mental responsibility was
conducted at his request, and that he also shared those results with Dr. KG
19
United States v. Lopez, No. ACM 40161
and asked for Dr. KG’s advice and recommendation with regard to the results.
According to Maj AA, Dr. KG responded consistently with her advice to avoid
introducing evidence of Appellant’s PTSD at trial:
I want to reiterate I do not recommend doing anything that
would place [Appellant’s] mental health records in the [G]overn-
ment’s hands. Aside from uncharged conduct and inconsistent
statements in general; he provided some inconsistent state-
ments upon which the PTSD diagnosis was based. Whether he
has PTSD or not, his records/diagnosis does not explain or miti-
gate sexual assault or the alleged violence.
Maj AA confirmed that Dr. KG’s advice informed the Defense’s trial strategy
to which Capt TO agreed, particularly with the decision to not introduce evi-
dence of Appellant’s PTSD.
We find Appellant has failed to either meet his burden of showing deficient
performance or overcome the strong presumption that his trial defense coun-
sel’s performance was within the wide range of reasonable professional assis-
tance. Both trial defense counsel provided reasonable explanations for their
actions, and their individual and combined level of advocacy on Appellant’s
behalf was not “measurably below the performance ordinarily expected of fal-
lible lawyers.” Polk, 32 M.J. at 153. Furthermore, we find both trial defense
counsel have articulated strategic reasons for their decisions concerning evi-
dence of Appellant’s PTSD. We will not second guess their defense strategy and
note that we evaluate defense counsel’s performance not by the success of their
strategy, “but rather whether counsel made . . . objectively reasonable choice[s]
in strategy from the alternatives available at the [trial].” See Dewrell, 55 M.J.
at 136 (quoting United States v. Hughes, 48 M.J. 700, 718 (A.F. Ct. Crim. App.
1998)). The declarations submitted by Appellant’s trial defense counsel make
clear that the defense team sought to shape the facts and narrative in the light
most favorable to Appellant. Based on our review of the record, to include evi-
dence and the declarations of defense counsel, the defense team was somewhat
successful in this regard.
Next Appellant claims his trial defense counsel were deficient for failing to
introduce evidence of his PTSD in sentencing. We find this claim is also not
supported by the record. The record shows Appellant adequately addressed his
PTSD in his unsworn statement. He vividly detailed his time in Iraq, where he
witnessed and experienced improvised explosive device explosions and other
“traumatic” events while deployed. Appellant also discussed his “deep sad-
ness,” “nightmares,” crying, and a suicide attempt resulting from his post-de-
ployment struggles. Thus, the record clearly shows Appellant’s PTSD was in-
troduced during sentencing.
20
United States v. Lopez, No. ACM 40161
Additionally, the declarations submitted by Appellant’s trial defense coun-
sel show that their decision not to present evidence through expert testimony
or mental health records was an objectively reasonable, strategic decision. Pre-
senting such evidence would have enabled the Government to rebut Appel-
lant’s diagnosis with potentially damaging inconsistent statements with re-
gard to his PTSD, as well as open the door to uncharged misconduct. We find
trial defense counsel’s strategic approach leveraged the potential mitigation of
Appellant’s traumatic experiences, including his post-deployment mental
health struggles, while mitigating the possibility that the Government would
put on evidence which could have severely undermined Appellant’s credibility,
claims of PTSD, and remorse. Therefore, we find these strategic decisions to be
reasonable.
b. AC’s Attorney-Client Privilege
Appellant argues trial defense counsel were deficient by failing to investi-
gate and litigate AC’s potential waiver of attorney-client privilege with her
SVC. In support of this claim, Appellant highlights the following portion of the
record where trial defense counsel questioned AC on an admission that Appel-
lant potentially made concerning the charged offenses:
[Trial Defense Counsel (TDC)]: Okay. And when you got di-
vorced, you hadn’t shared those admissions by [Appellant] with
any prosecutors or law enforcement representatives, is that cor-
rect?
[AC]: When I got divorced?
[TDC]: Yeah.
[AC]: I did.
[TDC]: Oh you did. Who?
[AC]: I believe it was my SVC.
Appellant claims his trial defense counsel were deficient for not seeking to
have AC’s SVC testify about her conversations with AC. Appellant now specu-
lates if the military judge agreed that AC waived the privilege, then the SVC’s
testimony might have been inconsistent with AC’s testimony and, if it was in-
consistent, it could have weakened AC’s credibility.
In response to this claim, Maj AA’s declaration provided that he did not
attempt to pierce AC’s attorney-client privilege by having her SVC testify for
two guiding reasons. First, Maj AA did not know how AC’s SVC would testify.
He was concerned that if the SVC was called as a witness and confirmed the
conversation, it would be another consistent statement—bolstering AC’s testi-
mony and strengthening the Government’s case. Second, he explained that his
21
United States v. Lopez, No. ACM 40161
strategy on cross-examining AC on this topic was “to undermine the weight of
[Appellant’s] admissions by making them appear to be a fabrication tied to
[AC’s] motive to fabricate” after she had moved on to another relationship.
“[O]ur scrutiny of a trial defense counsel’s performance is ‘highly deferen-
tial,’ and we make ‘every effort . . . to eliminate the distorting effects of hind-
sight, to reconstruct the circumstances of counsel’s challenged conduct, and to
evaluate conduct from counsel’s perspective at the time.’” Akbar, 74 M.J. at
379 (omission in original) (quoting Strickland, 466 U.S. at 689). Again, we do
not find Appellant has overcome the presumption of competence. Appellant has
not demonstrated that testimony from AC’s SVC would have been helpful. In
fact, we find that Appellant’s argument on appeal is built on nothing more than
supposition. As we have discussed, supra, Appellant’s trial defense counsel
generally attacked AC’s credibility throughout trial. Maj AA’s strategy with
regard to his cross-examination of AC was reasonable, as was his decision to
not challenge AC’s attorney-client privilege with her SVC. Trial defense coun-
sel’s performance was not measurably below the performance ordinarily ex-
pected of fallible defense counsel. See Polk, 32 M.J. at 153.
c. Partial Mental Responsibility Instruction
Appellant further asserts that trial defense counsel were deficient for fail-
ing to argue for an instruction on partial mental responsibility, and therefore
waiving it. The record reflects both parties were asked, during a discussion on
potential instructions, whether an instruction on lack of partial mental respon-
sibly was applicable to Appellant’s court-martial. Trial counsel argued the in-
struction did not apply because the instruction is only applicable to specific
intent crimes and Appellant was charged with general intent offenses. Trial
defense counsel, as he stated in his declaration, did not believe he had “a col-
orable legal argument” for the instruction after reviewing relevant case law.
Trial defense counsel also stated he wanted the court to “make its own deter-
mination” and he desired to “maintain candor with the [c]ourt.”
Ultimately, the military judge did not provide an instruction on partial
mental responsibility. The record shows the military judge and counsel for both
sides engaged in a discussion about potential instructions, all parties discussed
relevant law as related to the facts of Appellant’s case, and the military judge
determined such an instruction was not warranted. The law does not require
counsel to make futile arguments to avoid a later claim of ineffectiveness. We
therefore conclude Appellant has failed to demonstrate he was entitled to the
instruction or that his trial defense counsel’s performance was deficient by not
objecting to the proposed instructions absent a colorable argument for request-
ing such. We conclude that trial defense counsel’s decision to waive the instruc-
tion was not measurably below the standard of fallible defense counsel. See
Polk, 32 M.J. at 153.
22
United States v. Lopez, No. ACM 40161
d. Loss of Retirement Benefits
Appellant asserts his counsel were ineffective for failing to present evidence
of Appellant’s loss of retirement benefits. Maj AA explained the Defense’s de-
cision to focus Appellant’s sentencing case on emotional growth as opposed to
financial loss:
One decision that was brought up on the record was the
[D]efense’s decision to not introduce evidence related to retire-
ment. The defense strategy for sentencing was to focus the trier
of fact on (a) [Appellant]’s rehabilitative potential, as evinced by
opinions and statements about his good deeds and duty perfor-
mance, (b) his desire for a health[y] relationship with his chil-
dren, and (c) his desire to get healthy. The latter was addressed,
in part, by the reference to Department of Veterans Affairs in
his unsworn statement. In my assessment, focusing the mem-
bers on how little money and benefits [Appellant] would have in
the event of his mandatory dishonorable discharge would orient
the members on him being selfish, lacking perspective on the
heinous acts of which he was convicted, and yield the moral high
ground that we were otherwise endeavoring to keep compared to
the patently selfish conduct for which we impeached [AC]
throughout the trial.
(Third alteration in original).
We also note Appellant’s trial defense counsel articulated on the record
during presentencing that it was a deliberate choice to forego evidence specific
to loss of retirement benefits. Trial defense counsel explained to the military
judge there was already evidence before the members concerning Appellant’s
service history and that his length of service “clearly” demonstrated how “ex-
tremely close to retirement” Appellant was. Trial defense counsel then re-
quested the military judge to provide the members an instruction concerning
Appellant’s loss of retirement benefits, which he did. We find the reasons given
by trial defense counsel were well reasoned, well articulated, and not “conclu-
sory, self-serving[, or] inadequate.” Polk, 32 M.J. at 153. We conclude it was
within the realm of reasonable choices to focus defense efforts highlighting Ap-
pellant’s emotional growth to potentially reduce his exposure to confinement
instead of the financial fallout from a punitive discharge—especially consider-
ing, as his trial defense counsel acknowledged, Appellant was not retirement
eligible, he did not have an approved retirement date, Appellant’s term of ser-
vice had expired by the date of his court-martial, and, most compelling, a dis-
honorable discharge was mandatory for the offenses of which Appellant was
convicted.
23
United States v. Lopez, No. ACM 40161
In conclusion, after applying the framework to address claims of ineffective
assistance of counsel, we conclude that Appellant has not overcome the pre-
sumption of competence and has failed to demonstrate either deficient perfor-
mance or prejudice. We find no relief is warranted.
D. Sentence Severity
Appellant argues his sentence to nine years and six months of confinement
is inappropriately severe. Specifically, Appellant contends his sentence failed
to take into account his PTSD, his strong service record, his strong rehabilita-
tive potential, the nature and seriousness of the offenses, and all the matters
contained in the record. We are not persuaded by Appellant’s arguments and
find that the sentence is not inappropriately severe.
During presentencing the Government offered the testimony of AC’s close
friend, who described the effects Appellant’s crimes had on AC and GL. The
Government also admitted Appellant’s personal data sheet, enlisted perfor-
mance reports, excerpts from AC’s medical records regarding treatment she
received after 1 January 2018, and three pictures of GL and NL together.
The members also received unsworn victim impact statements from AC,
GP, and GL. In AC’s oral and written statement, she described how Appellant’s
actions have significantly and negatively impacted her and her sons. GP’s writ-
ten statement discussed how Appellant’s crimes negatively affected her life.
Finally, in a short 27-second video statement, GL discussed being shocked by
Appellant’s crimes and asked why it happened.
Appellant’s robust sentencing case consisted of: (1) testimony from Appel-
lant’s first sergeant, a retired senior master sergeant, who discussed Appel-
lant’s excellent duty performance following the incident; (2) a short video of
Appellant discussing his duties for certain pandemic-related measures; (3) Ap-
pellant’s written unsworn statement; (4) Appellant’s verbal unsworn state-
ment; (5) character letters from colleagues and friends; (6) documentation of
Appellant’s awards, certificates, and achievements; and (7) photos from Appel-
lant’s time in the military. We note Appellant had served in the Air Force for
over 19 years, had eight overseas tours, and had earned numerous awards and
decorations during his service. We also note Appellant’s sentencing case por-
trayed him as a capable noncommissioned officer who routinely exceeded his
leadership’s expectations.
In addition to a mandatory dishonorable discharge, the maximum punish-
ment Appellant faced as a result of his convictions included, inter alia, confine-
ment for life without the eligibility of parole, forfeiture of all pay and allow-
ances, and reduction to the grade of E-1. With regard to confinement, the Gov-
ernment argued for ten years, and the Defense argued for no more than three
years if the members determined confinement was necessary.
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United States v. Lopez, No. ACM 40161
We review sentence appropriateness de novo. United States v. Lane, 64
M.J. 1, 2 (C.A.A.F. 2016) (citation omitted). We may affirm only as much of the
sentence as we find correct in law and fact and determine should be approved
on the basis of the entire record. Article 66(d)(1), UCMJ, 10 U.S.C. § 866(d)(1).
“We assess sentence appropriateness by considering the particular appellant,
the nature and seriousness of the offense[s], the appellant’s record of service,
and all matters contained in the record of trial.” United States v. Sauk, 74 M.J.
594, 606 (A.F. Ct. Crim. App. 2015) (en banc) (per curiam) (alteration in origi-
nal) (quoting United States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App.
2009) (per curiam)). While we have discretion in determining whether a par-
ticular sentence is appropriate, we are not authorized to engage in exercises of
clemency. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
We have considered the nature and seriousness of the offenses and have
given individualized consideration to Appellant, including his record of service
and all matters contained in the record. We find that nine years and six
months’ confinement is not an inappropriately severe punishment for physi-
cally and sexually assaulting his wife, physically assaulting his wife’s sister,
and endangering the welfare of his sons. Although Appellant’s adjudged sen-
tence included a significant period of incarceration, it is far less than the max-
imum authorized—confinement for life—and was also less than the amount of
confinement that the Government argued was appropriate. Although we have
broad discretion in determining whether a particular sentence is appropriate,
we are not authorized to engage in exercises of clemency. Id. After careful con-
sideration of the above and the matters contained in the record of trial, we
conclude the sentence is not inappropriately severe.
E. Appellate Review Delay
Appellant’s court-martial concluded on 12 June 2021, and the record of trial
was not docketed with this court until 1 September 2021. This court is issuing
its opinion in 18 months and about one week after docketing.
“We review de novo claims that an appellant has been denied the due pro-
cess right to a speedy post-trial review and appeal.” United States v. Moreno,
63 M.J. 129, 135 (C.A.A.F. 2006) (citations omitted). In Moreno, the United
States Court of Appeals for the Armed Forces (CAAF) established a presump-
tion of facially unreasonable delay where the Court of Criminal Appeals does
not issue its decision within 18 months of docketing. Where there is such a
facially unreasonable delay, we consider the four factors identified in Barker
v. Wingo, 407 U.S. 514, 530 (1972), to assess whether Appellant’s due process
right to timely post-trial and appellate review has been violated: “(1) the length
of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the
right to timely review and appeal; and (4) prejudice.” Moreno, 63 M.J. at 135
25
United States v. Lopez, No. ACM 40161
(citing United States v. Jones, 61 M.J. 80, 83 (C.A.A.F. 2005); Toohey v. United
States, 60 M.J. 100, 102 (C.A.A.F. 2004) (per curiam)).
However, where there is no qualifying prejudice from the delay, there is no
due process violation unless the delay is so egregious as to “adversely affect the
public’s perception of the fairness and integrity of the military justice system.”
United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006). In Moreno, the CAAF
identified three interests protected by an appellant’s due process right to
timely post-trial review: (1) preventing oppressive incarceration; (2) minimiz-
ing anxiety and concern; and (3) avoiding impairment of the appellant’s
grounds for appeal and ability to present a defense at a rehearing. 63 M.J. at
138–39 (citations omitted).
The delay between docketing at this court and the issuance of this opinion
exceeds Moreno’s 18-month threshold for a facially unreasonable appellate de-
lay. Id. However, Appellant has not claimed prejudice from the delay, and in
light of Moreno we find none. Where the appellant does not prevail on the sub-
stantive grounds of his appeal, as in this case, there is no oppressive incarcer-
ation. Id. at 139. We discern no impairment to Appellant’s grounds for appeal,
and where an appellant’s substantive appeal fails, his ability to present a de-
fense at a rehearing is not impaired. Id. at 140. With regard to anxiety and
concern, “the appropriate test for the military justice system is to require an
appellant to show particularized anxiety or concern that is distinguishable
from the normal anxiety experienced by prisoners awaiting an appellate deci-
sion.” Id. Appellant has made no such showing of particularized anxiety, and
we perceive none.
Accordingly, the question becomes whether the delays in this case were so
egregious as to adversely affect the public’s perception of the military justice
system. Toohey, 63 M.J. at 362. We conclude it was not. Here, the facially un-
reasonable appellate delay was relatively slight—just about one week.
Finally, recognizing our authority under Article 66(d), UCMJ, 10 U.S.C.
§ 866(d), we have also considered whether relief for excessive post-trial delay
is appropriate in this case even in the absence of a due process violation. See
United States v. Tardif, 57 M.J. 219, 225 (C.A.A.F. 2002). After considering the
factors enumerated in United States v. Gay, 74 M.J. 736, 742 (A.F. Ct. Crim.
App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016), we conclude no such relief is
warranted.
III. CONCLUSION
The findings and sentence as entered are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred.
26
United States v. Lopez, No. ACM 40161
Articles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the
findings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
27