United States v. Davis ( 2021 )

This opinion is subject to administrative correction before final disposition.
Before
GASTON, STEWART, and HOUTZ
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Adam K. DAVIS
Staff Sergeant (E-6), U.S. Marine Corps
Appellant
No. 202000073
Decided: 30 August 2021
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge:
K. Scott Woodard
Sentence adjudged 22 November 2019 by a general court-martial con-
vened at Marine Corps Base Camp Lejeune, North Carolina, consist-
ing of a military judge sitting alone. Sentence approved by the conven-
ing authority: reduction to E-1, confinement for 10 years, 1 and a
dishonorable discharge.
For Appellant:
Major Brian L. Farrell, USMC
1 The convening authority suspended confinement in excess of 48 months pursu-
ant to a pretrial agreement.
United States v. Davis, NMCCA No. 202000073
Opinion of the Court
For Appellee:
Lieutenant John L. Flynn, JAGC, USN
Major Clayton L. Wiggins, USMC
_________________________
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under
NMCCA Rule of Appellate Procedure 30.2.
_________________________
PER CURIAM:
Appellant was convicted, in accordance with his pleas, of two specifica-
tions of distributing child pornography and one specification each of produc-
ing child pornography, receiving child pornography, possessing child pornog-
raphy, and indecent visual recording, in violation of Articles 120c and 134,
Uniform Code of Military Justice [UCMJ].2
In his sole assignment of error [AOE], Appellant contends that the minor
victim’s designee provided an improper victim impact statement by including
hearsay conversations with the victim’s non-testifying mother, statements of
hypothetical future impacts, and argument on behalf of the community. We
find that Appellant waived the issue and affirm.
I. BACKGROUND
Appellant took pornographic pictures of his eight-year-old daughter, Ash-
bee,3 traded those images online with another servicemember for pornograph-
ic images of the servicemember’s seven-year-old son, and used a hidden
camera to record the private areas of a fellow Marine without her knowledge
or consent. In his pretrial agreement, under which he agreed to plead guilty
to these and other offenses, both parties agreed not to object on various
grounds, including hearsay, to “relevant unsworn testimony by a crime victim
2 10 U.S.C. §§ 920c, 934.
3 All names in this opinion, other than those of Appellant, the judges, and coun-
sel, are pseudonyms.
2
United States v. Davis, NMCCA No. 202000073
Opinion of the Court
who exercises the right to be reasonably heard and is called by the court-
martial in accordance with [Rule for Courts-Martial] R.C.M. 1001A.”4
The military judge appointed Ms. Hart to serve as Ashbee’s designee un-
der R.C.M. 801(a)(6), and she gave an unsworn victim impact statement in
that capacity. In the unsworn statement, Ms. Hart stated that Ashbee “does
not know what her father did to her,” that “she will not know to protect
herself if her father was to return home,” and that “[p]lacing [Appellant] back
in the home would jeopardize Ashbee’s safety and security in the most fun-
damental way.” 5 Ms. Hart also stated that she had
communicated with Mrs. [Dalton], Ashbee’s mother, through a
series of text messages and Mrs. [Dalton] firmly believes that
this entire incident was caused by cyber hackers infiltrating
their online accounts. Mrs. [Dalton] does want what’s best for
Ashbee, but at this time Mrs. [Dalton] does not feel that she
has been provided enough evidence to convince her that her
husband has done anything wrong.
Mrs. [Dalton] is also very concerned that the family will
suffer from financial hardship if [Appellant] was found guilty.
As such, Ashbee’s mother would welcome [Appellant] home up-
on his release and might continue to believe that all is well.
Due to these factors, as a community, we must step in and pro-
vide a voice for an innocent, and do our part to protect Ashbee
from any further harm or exploitation at the hands of [Appel-
lant].6
Prior to Ms. Hart reading the statement aloud at trial, Appellant’s civil-
ian defense counsel informed the military judge that he had had an oppor-
tunity to review the statement and when asked whether he had any objection
stated, “No, Your Honor.” 7 Later, during Appellant’s unsworn statement,
Appellant was asked by his defense counsel, “You heard [Ms. Hart’s] state-
4 Appellate Ex. VII at 3. The rule regarding a crime victim’s right to be reasona-
ble heard at a sentencing hearing, previously codified at R.C.M. 1001A, is now
codified at R.C.M. 1001(c).
5 R. at 115–16.
6 R. at 116.
7 R. at 115.
3
United States v. Davis, NMCCA No. 202000073
Opinion of the Court
ment, do you agree with what she said in her statement?” 8 Appellant re-
sponded, “Yes. Completely.” 9
During the Government’s sentencing argument, the trial counsel pointed
out that the military judge had “heard about the current situation in the
home with the challenges that Mrs. [Dalton] has” and that Mrs. Dalton
“doesn’t understand and fully appreciate the gravity of her husband’s
crime.”10 The trial counsel mentioned this “to really paint the picture of the
situation here and the importance of the fact that the only institution posi-
tioned to protect [Ashbee] is this court.”11 The Defense did not object to these
statements.
II. DISCUSSION
We review de novo whether an appellant has waived an issue.12 In distin-
guishing between waiver and forfeiture, we must assess whether an appel-
lant merely failed to make a timely assertion of a right––forfeiture––or
whether he intentionally relinquished or abandoned a known right––
waiver. 13 We generally do not review waived issues “because a valid waiver
leaves no error for us to correct on appeal.”14
Pursuant to R.C.M. 1001(c)(3), the contents of victim impact statements
may only include matters in mitigation and “victim impact,” which is defined
to include “any financial, social, psychological, or medical impact on the crime
victim directly relating to or arising from the offense of which the accused has
been found guilty.” 15 “A victim’s statement should not exceed what is permit-
ted under R.C.M. 1001(c)(3),” and “[u]pon objection by either party or sua
sponte, a military judge may stop or interrupt a victim’s statement that
includes matters outside the scope of R.C.M. 1001(c)(3).” 16 “While the military
8 R. at 138.
9 R. at 138.
10 R. at 146.
11 R. at 146.
12 United States v. Davis, 79 M.J. 329, 331 (C.A.A.F. 2020).
13 Id. (citing United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009)).
14 Id. (quoting United States v. Campos, 67 M.J. 330, 332 (C.A.A.F. 2009)).
15 R.C.M. 1001(c)(2)(B).
16 R.C.M. 1001(c)(5)(B), Discussion.
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United States v. Davis, NMCCA No. 202000073
Opinion of the Court
judge is the gatekeeper for unsworn victim statements, an accused nonethe-
less has a duty to state the specific ground for objection in order to preserve a
claim of error on appeal.”17 Moreover, where counsel does not just “fail to
object,” but “affirmatively decline[s] to object” when the military judge asks
whether there is any objection to a particular matter, our superior court has
held that the issue is waived, not forfeited.18
Here, Appellant knowingly and intelligently waived any objection to the
victim impact statement. After the parties agreed not to object to a victim
impact statement on various grounds—including hearsay which Appellant
now raises in his AOE—Appellant’s defense counsel expressly told the mili-
tary judge he had reviewed the statement and when asked whether he had
any objection stated, “No, Your Honor.” Further, when asked by his counsel
during his own unsworn statement whether he agreed with “what [Ms. Hart]
said in her statement,” Appellant responded “Yes. Completely.”19 We find
that under these circumstances Appellant intentionally relinquished and
abandoned his known right to object to the statement. The issue is therefore
waived.
We recognize that our duty under Article 66, UCMJ, to approve only find-
ings and sentences that “should be approved” gives us the power to decide
“whether to leave an accused’s waiver intact, or to correct error.”20 In this
case, not only did his defense counsel affirmatively decline to object after
reviewing the statement, but Appellant also went so far as to adopt the
statement in toto during his own unsworn testimony. We decline to disregard
Appellant’s waiver under such circumstances.
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel,
we have determined that the findings and sentence are correct in law and
17 United States v. Tyler, 81 M.J. 108, 113 (C.A.A.F. 2021).
18 Davis, 79 M.J. at 330-31 (holding that the appellant waived all objections to
the military judge’s findings instructions where his counsel responded, “No, Your
Honor,” when the military judge asked whether there were any objections to his
instructions).
19 R. at 138.
United States v. Chin, 75 M.J. 220, 223 (C.A.A.F. 2016) (quoting Article 66,
20
UCMJ).
5
United States v. Davis, NMCCA No. 202000073
Opinion of the Court
fact and that no error materially prejudicial to Appellant’s substantial rights
occurred. 21
However, we note that the Entry of Judgment does not accurately reflect
the modification of the sentence by the convening authority pursuant to the
pretrial agreement. Although we find no prejudice, Appellant is entitled to
have court-martial records that correctly reflect the content of his proceed-
ing. 22 In accordance with Rule for Courts-Martial 1111(c)(2), we modify the
Entry of Judgment and direct that it be included in the record.
The findings and sentence are AFFIRMED.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
21 Articles 59 & 66, UCMJ.
22 United States v. Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998).
6
UNITED STATES NMCCA NO. 202000073
v. ENTRY
OF
Adam K. DAVIS JUDGMENT
Staff Sergeant (E-6)
U.S. Marine Corps As Modified on Appeal
Accused
30 August 2021
On 5 August and 22 November 2019 the Accused was tried at Marine Corps Base
Camp Lejeune, North Carolina, by a general court-martial, consisting of military
judge sitting alone. Military Judge Kevin S. Woodard, presided.
FINDI NGS
The following are the Accused’s pleas and the Court’s findings to all offenses the
convening authority referred to trial:
Charge: Violation of Article 134, Uniform Code of Military Justice,
10 U.S.C. § 934.
Plea: Guilty.
Finding: Guilty.
Specification 1: Production of Child Pornography between on or about
26 September 2018 and on or about 19 October 2018.
Plea: Guilty.
Finding: Guilty.
Specification 2: Distribution of Child Pornography between on or
about 26 September 2018 and on or about 19 October
2018.
Plea: Guilty.
Finding: Guilty.
United States v. Davis, NMCCA No. 202000073
Modified Entry of Judgment
Specification 3: Receipt of Child Pornography between on or about 26
September 2018 and on or about 19 October 2018.
Plea: Guilty.
Finding: Guilty.
Additional
Charge I: Violation of Article 120c, Uniform Code of Military Justice,
10 U.S.C. § 920c.
Plea: Guilty.
Finding: Guilty.
Specification: Indecent Visual Recording on or about 10 and 11
March 2016.
Plea: Guilty.
Finding: Guilty.
Additional
Charge II: Violation of Article 134, Uniform Code of Military Justice,
10 U.S.C. § 934.
Plea: Guilty.
Finding: Guilty.
Specification 1: Possession of Child Pornography between on or about
2 July 2014 and on or about 17 December 2015.
Plea: Guilty.
Finding: Guilty.
Specification 2: Distribution of Child Pornography between on or
about 15 October 2018 and on or about 24 October
2018.
Plea: Guilty.
Finding: Guilty.
SENTENCE
On 22 November 2019, the military judge sentenced the Accused to the following:
Reduction to pay grade E-1.
Confinement for 10 years.
A dishonorable discharge.
2
United States v. Davis, NMCCA No. 202000073
Modified Entry of Judgment
All confinement in excess of 48 months was suspended by the convening authori-
ty pursuant to the pretrial agreement.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
3