United States v. Gortzig ( 2022 )

This opinion is subject to administrative correction before final disposition.
Before
HOLIFIELD, HOUTZ, and HACKEL
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Justin M. GORTZIG
Aviation Electronics Technician Third Class (E-4), U.S. Navy
Appellant
No. 202100064
_________________________
Decided: 31 August 2022
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges:
Derek D. Butler (arraignment)
John C. Johnson (motions)
Eric A. Catto (motions and trial)
Sentence adjudged 6 November 2020 by a general court-martial con-
vened at Naval Air Station Jacksonville, Florida, consisting of enlisted
members. Sentence in the Entry of Judgment: reduction to E-1, forfei-
ture of $866.00 pay per month for 3 months, and a bad-conduct dis-
charge.
For Appellant:
Lieutenant Commander Michael W. Wester, JAGC, USN
Major Mary Claire Finnen, USMC
United States v. Gortzig, NMCCA No. 202100064
Opinion of the Court
For Appellee:
Major Kerry E. Friedewald, USMC
Lieutenant Commander Jeffrey S. Marden, JAGC, USN
_________________________
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, contrary to his pleas, of four specifications 1 of sex-
ual abuse of a child, in violation of Article 120b, Uniform Code of Military Jus-
tice [UCMJ], 2 for sexually abusing a child who had not yet reached the age of
16 by directly touching her breast with his hand, touching her vulva with his
finger on two occasions, and causing her hand to touch his penis.
Appellant asserts three assignments of error [AOEs], which we reorder as
follows: (1) trial defense counsel [TDC] were ineffective for failing to present
the victim’s statement to Naval Criminal Investigative Service [NCIS] in
which she suggested a text message from Appellant stating “I did” was not an
admission; (2) the military judge erred by admitting the complaining witness’
text messages to a friend under the excited utterance exception to the rule
against hearsay; and (3) Appellant’s convictions are factually insufficient. We
find no prejudicial error and affirm.
I. BACKGROUND
Appellant first met Amy 3 when she was eleven years old. Appellant lived
with the Kilos, who were family friends of Amy. Amy would often spend the
night at the Kilo’s Deltona, Florida, home and considered the Kilos family. Ap-
pellant, eight years senior to Amy, often babysat Amy and the Kilo children.
1 Appellant was found guilty of four specifications, but the military judge merged
two specifications for sentencing.
2 10 U.S.C. § 920b (2012).
3All names in this opinion, other than those of Appellant, the judges, and appellate
counsel, are pseudonyms.
2
United States v. Gortzig, NMCCA No. 202100064
Opinion of the Court
Amy considered Appellant family, as well, but they rarely communicated with
each other outside of in-person encounters at the Kilo home.
Appellant enlisted in the Navy in July of 2017. Following boot camp, he
visited the Kilos in late October 2017, attending a Halloween event with the
Kilo family and Amy, who was then fourteen. The group later returned to the
Kilo’s home to watch a movie. With numerous adults and children present in
the living room, Appellant and Amy lay on a small couch in a “spooning” posi-
tion, each under a separate blanket.
During the movie, Appellant moved his hand under Amy’s blanket, reached
under her shirt and bra, and grabbed her breast. He then placed his hand in
her shorts, moved her underwear aside, and touched her genital area. Amy was
surprised and attempted to remove his hand. She did not call out to anyone in
the room.
Later that night, when everyone else had gone to their respective bedrooms,
Amy and Appellant remained in the living room. While Amy texted friends,
Appellant retrieved a towel, placed it under Amy, and pulled her shorts and
underwear to her ankles. He again touched her genital area, stopping after a
few minutes.
Amy then fell asleep on the couch, only to awaken with Appellant again
behind her, this time with his penis exposed. Appellant shook Amy awake and
placed her hand on his penis.
At this point Amy left the living room, ultimately ending up in a bedroom.
Within ten minutes of her last contact with Appellant, Amy engaged in a text
and voice conversation with an online friend in England named Craig. During
this conversation, Amy stated she was terrified and crying because Appellant
had just sexually abused her. Although Craig urged her to report the assaults,
Amy declined out of fear that no one in the home would believe her.
Amy did not report the incident until eight months later, when her mother
asked what was bothering her. Amy subsequently provided statements to local
law enforcement and NCIS.
Additional facts necessary to address the AOEs are provided below.
3
United States v. Gortzig, NMCCA No. 202100064
Opinion of the Court
II. DISCUSSION
A. The Ineffective Assistance of Counsel Claim Fails for Lack of Prej-
udice
We review claims of ineffective assistance of counsel de novo. 4 To prevail
on such a claim, “an appellant must demonstrate both (1) that his counsel’s
performance was deficient, and (2) that this deficiency resulted in prejudice.” 5
Appellant bears the “burden of establishing the truth of factual matters rele-
vant to the claim.” 6 “To establish prejudice . . . , [Appellant] must show that
“there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable probabil-
ity is a probability sufficient to undermine confidence in the outcome.” 7 Only
after an appellant has met his burden and has demonstrated both deficiency
and prejudice can we find in the appellant’s favor on an ineffective assistance
of counsel claim. 8 Furthermore, “it is not necessary to decide the issue of defi-
cient performance when it is apparent that the alleged deficiency has not
caused prejudice. 9
1. Appellant’s “I Did” Text
While Appellant and Amy lay on the couch watching the movie, they ex-
changed the following texts:
Amy: HEY HO!
GUESS WHAT!
Appellant: Yes itch!
Amy: YOU WANNA FIGHT?
4 United States v. Cooper, 80 M.J. 664, 672 (N-M. Ct. Crim. App. 2020).
United States v. Green, 68 M.J. 360, 361-62 (C.A.A.F. 2010) (citing Strickland v.
5
Washington, 466 U.S. 668, 687 (1984)) (other citation omitted).
6 Denedo v. United States, 66 M.J. 114, 128 (C.A.A.F. 2008).
7United States v. Loving, 68 M.J. 1, 6-7 (C.A.A.F. 2009) (quoting Strickland, 466
U.S. at 694).
8 Cooper, 80 M.J. at 672.
9 United States v. Bradley, 71 M.J. 13, 16 (C.A.A.F. 2012). See also, Strickland, 466
U.S. at 697. (“If it is easier to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice . . . that course should be followed.”)
4
United States v. Gortzig, NMCCA No. 202100064
Opinion of the Court
Appellant: DEF, JUST GOTTA WAIT TIL EVERYONE GOES TO
SLEEP [laughing emoji]
Amy: IMA BEAT YO ASS
Appellant: Try me
Amy: you won’t do shut
**shit
Appellant: Try me, I got you all to myself and you’re right next to me
Amy: you wont 10
Amy later described how she believed this exchange was meant as a joke,
but that, in hindsight, “[i]t ended up being a giant mistake to text [“you
wont”]. 11 Nearly two-and-a-half hours later, after the initial assaults, Appel-
lant sent Amy a final text: “I did.” 12
In December 2019, Amy spoke with Special Agent [SA] Sierra of NCIS.
While the telephonic interview was not recorded, SA Sierra documented Amy’s
statements via handwritten notes. In these notes, SA Sierra wrote “I did” ac-
companied by two arrows: one pointing from “I did” to “victim cried when read”
and one pointing from “I did” to “knew [subject] was going to do something.” 13
SA Sierra’s subsequent “Results of Re-Interview” reflects this: “In reference to
the text message “I did” from [Appellant] on 29OCT17 [Amy] stated she cried
when she read it. [Amy] recalled she “knew [Appellant] was going to do some-
thing.”” 14 Neither trial counsel nor defense counsel questioned SA Sierra on
this point during her in-court testimony.
At trial, the only time the “I did” text was specifically addressed was when
trial counsel asked Amy where she was when she received it. 15 During closing
argument, however, the text was highlighted on four of trial counsel’s visual
aid slides and portrayed as an admission that, combined with Amy’s testimony,
10 Pros. Ex. 5.
11 App. Ex. XXXIX at 4.
12 Pros. Ex. 5 at 2.
13 Declaration of LCDR Michael W. Wester, JAGC, USN, Encl. A at 1 (Aug 17,
2022).
14 App. Ex. XI at 27.
15 R. at 428.
5
United States v. Gortzig, NMCCA No. 202100064
Opinion of the Court
satisfied the elements of the charged offenses. 16 In the defense’s closing argu-
ment, the text was dismissed as simply part of what they argued was mean-
ingless joking between Amy and Appellant. 17 (This was supported by the text’s
temporal relationship to an arguably joking text Amy sent to Craig.)
On appeal, Appellant claims that SA Sierra’s notes show that Amy read the
“I did” text not as an admission of a past act, but an indication that Appellant
“was going to do something” in the future. Therefore, argues Appellant, trial
defense counsel’s failure to use Amy’s statement to SA Sierra to rebut the gov-
ernment’s characterization of the text as an admission was deficient perfor-
mance.
2. Competing Affidavits
In response to an order from this Court, Appellant’s two trial defense coun-
sel submitted affidavits rebutting their former client’s claim of ineffective as-
sistance. 18 The assistant defense counsel [ADC], who was tasked with cross-
examining Amy, was very familiar with SA Sierra’s notes. She used them quite
effectively to refresh Amy’s recollection several times. But she was hesitant to
ask Amy directly about her discussion with SA Sierra because the ADC did not
know how Amy would answer; Amy had declined to speak with defense counsel
before trial. Also, the ADC explains, there was little to gain. Attempting to
impeach Amy with the handwritten notes of the NCIS agent would likely only
have led to confusion without making the desired points. And leaving her state-
ments unexplained played into the defense team’s focus on Amy’s implausible,
changing story and motive to fabricate.
In his affidavit, Appellant’s lead defense counsel describes a similar analy-
sis. Amy had barely touched on the “I did” text during her testimony. Trying
to impeach her with her statements to SA Sierra would have provided an op-
portunity for Amy to explain why she thought Appellant was going to abuse
her further. And it would have undercut the defense team’s theory that the
text was simply part of the preceding, joking texts. Had the text been an ad-
mission, Amy likely would have mentioned it in her communications with
Craig ninety minutes later. (The ADC made this point in her closing argu-
ment.)
16 App. Ex. XLVII at 6, 17-19.
17 R. at 664.
18 Affs. of TDC.
6
United States v. Gortzig, NMCCA No. 202100064
Opinion of the Court
Finally, neither of the counsel read SA Sierra’s notes in the way Appellant
now proposes, i.e., that the past-tense statement “I did” somehow signified an
intent to do something to Amy in the future.
We subsequently granted Appellant’s motion to attach an additional affi-
davit—this from his now-released appellate counsel, LCDR Wester. 19 In the
affidavit LCDR Wester describes a call he had with Appellant’s lead TDC in
which they discussed SA Sierra’s notes. The TDC, after a long pause, provided
no strategic reason for not introducing Amy’s statement to SA Sierra, and rec-
ommended LCDR Wester contact the ADC. This left LCDR Wester with the
impression that the failure to introduce the statement may have been an over-
sight, and not a strategic decision by TDC.
3. Assuming Deficient Performance, We Find No Prejudice
Even were we permitted to weigh the merits of the competing affidavits, 20
we find it unnecessary to do so here. Assuming arguendo that Appellant’s trial
defense counsel were deficient, we find that Appellant has not established prej-
udice. Appellant needs to show more than a mere possibility that introducing
Amy’s statement to SA Sierra would have aided his defense. He must demon-
strate a reasonable probability—that is, “a “substantial,” not just “conceiva-
ble,” likelihood”—that introducing the statement would have produced a dif-
ferent result in his case. 21 He has not done so here.
Appellant asks us to speculate on top of speculation. For him to prevail, we
must first find it reasonably likely that introducing Amy’s statement via SA
Sierra’s notes would have achieved the desired result: showing the text was
not an admission of past abuse, but only a harbinger of future action. We find
such a conclusion both unreasonable and unlikely. A plain reading of “I did”—
clearly past-tense—makes Appellant’s interpretation illogical.
Also, based on other statements Amy made, we can be fairly certain of how
Amy would have responded had TDC attempted to impeach her with the sec-
ond-hand statement in SA Sierra’s notes. In her interview with a Child Protec-
tive Team interviewer, Amy estimated that the second sexual abuse event oc-
curred around 2300. 22 The “I did” text was sent nearly two hours later. Amy
also testified during an Article 39(a), UCMJ, hearing that the “I did” text came
19 Aff. of LCDR Wester.
20 See United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997).
21 United States v. Bradley, 71 M.J. 13, 16 (C.A.A.F. 2012) (citing Cullen v.
Pinholster, 563 U.S. 170, 189 (2011)).
22 App. Ex. 38 at 26.
7
United States v. Gortzig, NMCCA No. 202100064
Opinion of the Court
after the sexual assault. 23 We expect that, if Amy were confronted with her
purported statement to SA Sierra, her response would have reflected this time-
line. At best, her statement to SA Sierra may have provided ADC with an ad-
ditional, albeit questionable, point to claim during closing argument that the
text was not an admission. But the government would still have been free to
argue effectively that it was an admission. Given the entirety of the evidence
in this case, and particularly the texts between Amy and Craig, we are not
convinced that admitting the statement presents a substantial likelihood of a
different result and find this AOE lacks merit.
B. The Military Judge Did Not Abuse His Discretion in Admitting the
Victim’s Text Messages as “Excited Utterances”
We review a military judge’s ruling to admit evidence as an excited utter-
ance for an abuse of discretion. 24 “The abuse of discretion standard is a strict
one, calling for more than a mere difference of opinion.” 25 “A military judge
abuses his discretion when: (1) the findings of fact upon which he predicates
his ruling are not supported by the evidence of record; (2) if incorrect legal
principles were used; or (3) if his application of the correct legal principles to
the facts is clearly unreasonable.” 26
“A statement relating to a startling event or condition, made while the de-
clarant was under the stress of excitement caused by the event or condition,”
is admissible as an exception to the general prohibition on hearsay. 27 “The
implicit premise [of the exception] is that a person who reacts “to a startling
event or condition” while “under the stress of excitement caused” thereby will
speak truthfully because of a lack of opportunity to fabricate.” 28
“For a statement to qualify as an excited utterance: (1) the statement must
be “spontaneous, excited or impulsive rather than the product of reflection and
deliberation”; (2) the event prompting the utterance must be “startling”; and
23 R. at 157
24 United States v. Henry, 81 M.J. 91, 95 (C.A.A.F. 2021) (citation omitted).
25 United States v. White, 69 M.J. 236, 239 (C.A.A.F. 2010).
26 United States v. Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010).
27Henry, 81 M.J. at 96 (citing M.R.E. 803(2) and Manual for Courts-Martial,
United States, Analysis of the Military Rules of Evidence app. 22 at A22-63 (2016 ed.)).
28 Id. (quoting United States v. Jones, 30 M.J. 127, 129 (C.M.A. 1990)).
8
United States v. Gortzig, NMCCA No. 202100064
Opinion of the Court
(3) the declarant must be “under the stress of excitement caused by the
event.”” 29
1. The Texts Amy Sent to Craig
Amy testified that, after awaking to Appellant placing her hand on his pe-
nis, she left the couch and went to the bathroom. A few minutes later she went
into one of the bedrooms, where she reached out to her friend in England,
Craig. She testified that, when she contacted Craig, she “was scared” and
“didn’t understand what was happening.” 30 She affirmed she felt this way
throughout the conversation with Craig and had not had a chance to reflect or
think about what had just happened before contacting him. 31
Her conversation with Craig was of mixed form. It involved both texts and
(unrecorded) oral communication on Craig’s part, and texts from Amy, who did
not want anyone to overhear her side of the conversation. Early in the conver-
sation Amy texted, “I’m deadass terrified” and “I’m hiding in my cousins room
crying.” 32 She went on to describe how Appellant “forced himself on [her] when
he thought [she] was asleep,” “put [her] hand on his dick,” “touched [her],” and
“tried putting his . . . tounge [sic] in [her] mouth.” 33 She also explained why she
was reluctant to tell anyone in the Kilo home.
Trial counsel sought to admit screen shots of these texts as excited utter-
ances. Appellant’s counsel objected, citing, inter alia, a lack of a proper foun-
dation for admitting the texts as excited utterances.
2. The Military Judge’s Ruling
In ruling on the defense’s objection, the military judge walked through the
three-prong test for admission of an excited utterance. He found that the first
prong—that the statement be spontaneous, excited, or impulsive, and not the
result of reflection or deliberation—was supported by Amy’s testimony that the
communication with Craig started less than ten minutes after the last assault,
and that she was scared at the time. He then found that the second prong—
that the event prompting the utterance must be startling—was met in that
29 Id. (quoting United States v. Arnold, 25 M.J. 129, 132 (C.M.A. 1987)).
30 R. at 402.
31 R. at 403.
32 Pros. Ex. 4 at 1-2.
33 Id. at 1, 7.
9
United States v. Gortzig, NMCCA No. 202100064
Opinion of the Court
“placing [Appellant’s] penis in the victim’s hand would qualify as a startling
event.” 34
Regarding the third prong, the military judge found that Amy “could still
have been under the stress of the excitement caused by the event.” 35 Accord-
ingly, the military judge admitted the texts as an excited utterance.
3. Analysis
Appellant claims on appeal that the facts that the utterance at issue was
in writing (texts), was made over a 40-minute period, and was mostly in re-
sponse to Craig’s questions indicate it was not spontaneous, but was the result
of reflection.
In support of his claim, Appellant cites to a Supreme Judicial Court of Mas-
sachusetts holding that, regarding text messages, “[b]ecause a writing is more
suspect as a spontaneous exclamation than is an oral statement, the circum-
stances of the writing would have to include indicia of reliability even more
persuasive than those required for an oral statement before we could conclude
that the writing qualified as a spontaneous exclamation.” 36 We find this un-
persuasive. At a time when people—particularly young people—regularly com-
municate via texts as frequently, or even more frequently, as they do orally on
their cell phones, we see no reason to treat such communication methods under
different standards. We find this especially true where, as in the instant case,
the texts are brief and clearly part of a back-and-forth conversation.
Appellant further cites to an Army Court of Criminal Appeals case wherein
our sister court found that the declarant’s activity and the length of time be-
tween an alleged assault and a statement to a friend rendered the statement
unspontaneous. 37 We distinguish this case by noting that, unlike here, the mil-
itary judge did not place his findings of fact or legal analysis on the record.
Accordingly, the Army Court afforded the military judge in that case little def-
erence. 38 But, as in Appellant’s case, “where the military judge places on the
record his analysis and application of the law to the facts, deference is clearly
34 R. at 406.
35 R. at 407.
36 Commonwealth v. Musgrave, 472 Mass. 170, 177, 33 N.E. 3d 440 (Mass. 2015)
(quoting Commonwealth v. DiMonte, 427 Mass. 233, 239, 692 N.E.2d 45 (1998)).
37 United States v. Johnson, No. 20180527, 2020 CCA LEXIS 249 (A. Ct. Crim. App.
July 23, 2020).
38 Id., at *5.
10
United States v. Gortzig, NMCCA No. 202100064
Opinion of the Court
warranted.” 39 Applying this deference, we are unpersuaded by Appellant’s re-
maining challenges to the military judge’s ruling. 40
We find the judge’s findings of fact to be fully supported by the evidence
presented. We also find that he applied the correct legal principles in resolving
the matter. And we do not find that his application of those principles to the
facts was clearly unreasonable. Accordingly, we find this AOE without merit.
C. Appellant’s Convictions are Factually Sufficient
Appellant asserts the evidence is factually insufficient to support his con-
victions. 41 Specifically, Appellant claims the evidence was insufficient in that
Amy’s testimony was implausible, inconsistent with her prior statements, and
contradicted by two other witnesses. We review such questions de novo. 42
In evaluating factual sufficiency, we determine “whether, after weighing
the evidence in the record of trial and making allowances for not having per-
sonally observed the witnesses, [we] are . . . convinced of the [appellant’s] guilt
beyond a reasonable doubt.” 43 In conducting this unique appellate function, 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 de-
39 United States v. Flesher, 73 M.J. 303, 312 (C.A.A.F. 2014).
40 Appellant claims that (1) the evening’s previous assaults rendered the final one
non-startling, and (2) the government’s only evidence regarding Amy’s condition at the
time of the texts was her own testimony. We decline to speculate as to what number of
serial assaults would render a further assault an unstartling event. And we have had
“no trouble concluding” that a declarant’s own statements are sufficient to establish
that the declarant was under the stress and excitement of a startling event. United
States v. Dias, No. 201500177, 2017 CCA LEXIS 583, *6 (N-M. Ct. Crim. App. August
31, 2017) (unpublished).
41 Although not raised as an AOE, we also reviewed for legal sufficiency. Article
66(d)(1), UCMJ. And, “considering the evidence in the light most favorable to the pros-
ecution,” we find “a reasonable fact-finder could have found all the essential elements
beyond a reasonable doubt.” United States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987)
(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
42 United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).
43 Turner, 25 M.J. at 325.
11
United States v. Gortzig, NMCCA No. 202100064
Opinion of the Court
termination as to whether the evidence constitutes proof of each required ele-
ment beyond a reasonable doubt.” 44 Proof beyond a “[r]easonable doubt, how-
ever, does not mean the evidence must be free from conflict.” 45
Appellant’s trial defense counsel did an admirable job in seeking to im-
peach Amy’s testimony. Her testimony was not “free from conflict.” On appeal,
as at trial, Appellant challenges Amy’s description of the initial sexual abuse
during the movie as implausible in that it occurred in a room full of people and
that she did not cry out in pain or ask for help. But we find Amy’s explanation—
that she was scared and did not think anyone would believe her—was credible
in light of all evidence presented on the merits. We also find credible her de-
scriptions of the subsequent abusive events. Viewed together with the other
evidence admitted at trial, we find the various inconsistencies between her in-
court testimony and previous statements are insufficient to constitute a rea-
sonable doubt as to Appellant’s guilt. And, for reasons evident in the record,
we give little weight to the purportedly conflicting testimony of other wit-
nesses.
After weighing the evidence admitted and presented to the members dur-
ing the trial, and making allowances for not having personally observed the
witnesses, we are convinced of Appellant’s guilt beyond a reasonable doubt and
find that the evidence is factually sufficient to support Appellant’s convictions.
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 fact and
that no error materially prejudicial to Appellant’s substantial rights oc-
curred. 46
However, we note that the Entry of Judgment does not accurately reflect
the disposition of the charges. Specifically, the original Entry of Judgment in-
dicates the military judge merged for sentencing purposes specifications 2 and
3 of the Charge, when he actually merged specifications 1 and 2. Although we
find no prejudice, Appellant is entitled to have court-martial records that cor-
rectly reflect the content of his proceeding. 47 In accordance with Rule for
44 Washington, 57 M.J. at 399.
45 United States v. Rankin, 63 M.J. 552, 557 (N-M. Ct. Crim. App. 2006).
46 Articles 59 & 66, UCMJ.
47 United States v. Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998).
12
United States v. Gortzig, NMCCA No. 202100064
Opinion of the Court
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:
S. TAYLOR JOHNSTON
Interim Clerk of Court
13
UNITED STATES NMCCA NO. 202100064
v. ENTRY
OF
Justin M. GORTZIG JUDGMENT
Aviation Electronics Technician
Third Class (E-4) As Modified on Appeal
U.S. Navy
Accused 31 August 2022
From 2 through 6 November 2020, the Accused was tried at Naval Air Station
Jacksonville, Florida, by a general court-martial consisting of officer and enlisted
members. Military Judges, Derek D. Butler (arraignment), John C. Johnson (mo-
tions), and Eric A. Catto (motions and trial), presided.
FINDINGS
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 120b, Uniform Code of Military Justice,
10 U.S.C. § 920b.
Plea: Not Guilty.
Finding: Guilty.
Specification 1: Sexual abuse of a child on or about 28 October 2017.
Plea: Not Guilty.
Finding: Guilty
Specification 2: Sexual assault of a child on or about 28 October 2017.
Plea: Not Guilty.
Finding: Not guilty, but guilty of the lesser included offense
of sexual abuse of a child.
United States v. Gortzig, NMCCA No. 202100064
Modified Entry of Judgment
Specification 3: Sexual assault of a child on or about 29 October 2017.
Plea: Not Guilty.
Finding: Not guilty, but guilty of the lesser included offense
of sexual abuse of a child.
Specification 4: Sexual abuse of a child on or about 29 October 2017.
Plea: Not Guilty.
Finding: Guilty
SENTENCE
On 6 November 2020, officer and enlisted members sentenced the Accused to the
following (as modified, if at all, during any post-trial action):
Reduction to pay grade E-1.
Forfeiture of $866.00 pay per month for 3 months.
A bad-conduct.
Specifications 1 and 2 of the Charge were merged for sentencing as an unreason-
able multiplication of charges.
The members awarded forfeitures of $866.55 pay per month for 3 months. Pursu-
ant to R.C.M. 1003(b)(2), forfeitures shall consist of whole dollars, therefore the for-
feitures to be entered is $866.00 pay per month for 3 months.
FOR THE COURT:
S. TAYLOR JOHNSTON
Interim Clerk of Court
2