                                       IN THE CASE OF



                               UNITED STATES, Appellee

                                              v.


                       Hanalei M. TERLEP, Staff Sergeant
                           U.S. Air Force, Appellant


                                      No. 01-0241


                               Crim. App. No. 33408

         United States Court of Appeals for the Armed Forces

                               Argued October 4, 2001

                            Decided September 30, 2002

   SULLIVAN, S.J., delivered the opinion of the Court, in which
   CRAWFORD, C.J., and GIERKE, EFFRON, and BAKER, JJ., joined.

                                           Counsel

For Appellant:    Captain Kyle R. Jacobson (argued); Colonel James R. Wise
     and Lieutenant Colonel Timothy W. Murphy (on brief); Lieutenant Colonel
     Beverly B. Knott.




For   Appellee:    Captain Christa S. Cothrel (argued); Colonel Anthony P.
      Dattilo and Major Lance B. Sigmon (on brief); Captain James C. Fraser.




Military Judge:     Kurt D. Schuman


          THIS   OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Terlep, 01-0241/AF



     Senior Judge SULLIVAN delivered the opinion of the Court.

     During August of 1998, appellant was tried by a general

court-martial composed of a military judge sitting alone at

Hickam Air Force Base in Hawaii.       In accordance with a pretrial

agreement, he pleaded guilty to wrongfully using and

distributing marijuana, in violation of Article 112a, Uniform

Code of Military Justice (UCMJ), 10 USC § 912a.      Moreover,

although charged with burglary and rape, appellant also pleaded

guilty to the lesser offenses of unlawful entry of a dwelling

and assault consummated by a battery, in violation of Articles

134 and 128, UCMJ, 10 USC §§ 934 and 928.      He was found guilty

of all the offenses to which he pleaded guilty, and on August

28, 1998, he was sentenced to a bad-conduct discharge, two

years’ confinement, and reduction to Airman Basic.      The

convening authority approved this sentence on October 19, 1998.

The Court of Criminal Appeals affirmed on November 13, 2000.


     On May 14, 2001, this Court granted three issues for

review:

                              I

          WHETHER IT WAS PLAIN ERROR FOR THE
          MILITARY JUDGE TO ALLOW, IN THE PRE-
          SENTENCING PROCEEDINGS, TESTIMONY BY THE
          ASSAULT VICTIM THAT SHE WAS RAPED AND
          ARGUMENT BY TRIAL COUNSEL THAT WHEN THE
          ASSAULT VICTIM TESTIFIED, SHE TOLD THE
          “TRUTH.”



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United States v. Terlep, 01-0241/AF


                                    II

            WHETHER IT WAS INEFFECTIVE ASSISTANCE OF
            COUNSEL TO FAIL TO OBJECT TO THE ASSAULT
            VICTIM’S TESTIMONY, IN THE PRE-SENTENCING
            PROCEEDINGS, THAT SHE WAS RAPED, IN LIGHT
            OF THE STIPULATION OF FACT TO AN ASSAULT,
            NOT A RAPE, AND TO FAIL TO OBJECT TO
            TRIAL COUNSEL’S SENTENCING ARGUMENT.

                                   III

            WHETHER THE AIR FORCE COURT OF CRIMINAL
            APPEALS ERRED BY USING THE CONFINEMENT
            CAP IN APPELLANT’S PRETRIAL AGREEMENT AS
            A CONCESSION THAT HIS SENTENCE IS
            APPROPRIATE AND AS A FACTOR IN FINDING
            THAT APPELLANT SUFFERED NO PREJUDICE AS A
            RESULT OF HIS COUNSEL’S DEFICIENT
            PERFORMANCE.

We hold that neither the victim’s sentencing testimony nor trial

counsel’s sentencing argument constituted plain error under RCM

811(e), Manual for Courts-Martial, United States (1998 ed.).1

See United States v. Corpus, 882 F.2d 546, 551 (1st Cir. 1989);

cf. United States v. Gerlach, 16 USCMA 383, 385, 37 CMR 3, 5

(1966).   We further hold that appellant was not denied effective

assistance of counsel when defense counsel failed to object on

the basis of RCM 811(e) to this government evidence and

argument.    See United States v. McConnell, 55 MJ 479 (2001).

Finally, we hold that in view of our resolution of the first two

granted issues, the third granted issue in this case is moot.



1 The current versions of all Manual provisions cited are identical to the





ones in effect at the time of appellant’s court-martial, unless otherwise
indicated.


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United States v. Terlep, 01-0241/AF


     Appellant was charged with the rape of S and burglary of

her uncle’s home with the intent to commit rape, in violation of

Articles 120 and 129, UCMJ, 10 USC §§ 920 and 929.    He pleaded

guilty to assaulting S with his hands and unlawful entry of her

uncle’s home, in accordance with a pretrial agreement and

stipulation of fact.


    The stipulation of fact stated in pertinent part:


               On Friday, 29 August 1997, in the
          evening, [S] joined the accused and
          others for a “going-away” party for the
          accused. The accused and [S] and several
          of his friends and cousins, Wade Terlep,
          Christopher Leming, Robert Hanzon and
          Derek Distajo, shortly thereafter went
          onto Hickam Air Force Base to the party
          planned for the accused. The party was
          held in the dormitory room of SrA Steve
          Reyes as well as in the dormitory
          recreation room.

               The party activities consisted
          largely of drinking alcohol and playing
          pool. Eventually, several party-goers,
          including the accused, [S], Wade Terlep,
          Christopher Leming, Robert Hanzon and
          Derek Distajo went to a local nightclub
          called Dancers. Sometime after midnight,
          these five individuals then left Dancers
          and returned to [S]’s uncle’s house to
          drop her off. At this point, [S] was
          intoxicated. Several of the young men
          present assisted her into the house and
          onto her bed. Each of these young men
          then left the house. At this point, only
          [S], her young son, and her uncle were in
          the house and all of them were in their
          beds. Eventually, Christopher Leming
          went back into the house to spend time


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United States v. Terlep, 01-0241/AF


          with [S]. He stayed with [S] for a
          period of time and eventually left the
          house to return to the accused’s house
          where the accused and Wade Terlep, Robert
          Hanzon and Derek Distajo had settled in
          for the night. Shortly thereafter, the
          accused left his house and went to [S]’s
          [uncle’s] house. By this time, [S] had
          closed her door, turned out her lights,
          and gone to sleep in her bed with her son
          sleeping in his bed in the same room.
          The accused let himself into [S]’s
          [uncle’s] house without her permission.
          He then entered [S]’s bedroom and touched
          her body with his hands without her
          permission. After [S] told the accused
          to stop touching her, the accused then
          immediately stopped touching her and left
          her [uncle’s] house. [S] followed him
          outside and, while crying, asked the
          accused what it was he thought he was
          doing. The accused responded that it was
          better if he just went home which he then
          did.

                            * * *
               When the accused assaulted [S] at or
          near the island of Oahu, Hawaii, on or
          about 30 August 1997, as described above,
          he did bodily harm to her by offensively
          touching her body through a culpably
          negligent application of force. The
          touching was without legal justification
          or excuse and without her lawful consent.
          The accused’s acts were negligent and
          accompanied by a reckless disregard for
          the foreseeable results to [S].

               When the accused entered the
          dwelling house of Stanley N[] on the
          island of Oahu, Hawaii, on or about 30
          August 1997, such entry was unlawful.
          Under the circumstances of this entry,
          the conduct of the accused was to the
          prejudice of good order and discipline in
          the armed forces and was of a nature to
          bring discredit upon the armed forces.


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United States v. Terlep, 01-0241/AF



     The military judge found appellant guilty of the above

offenses as pleaded to by appellant.   During sentencing, the

Government called the victim to the stand to testify as follows:


          Q: Did you fall asleep fairly quickly
          after you laid down?

          A:   Pretty quick.

          Q: Can you tell the judge what you
          remember next happening to you?

          A: Well, I was sleeping and well, I
          thought that I was having a dream that,
          you know, a sex dream. Then I was awoken
          because I guess my body felt as though it
          wasn’t just like I was dreaming this,
          that something was really happening to
          me. When I woke up, I saw Hanalei’s
          face, and I told him to get, you know,
          the “f” off of me. Then, you know, he
          did. Then after that, he--I was getting
          loud and he said to be quiet before I
          wake up my son.

          Q: When you--you say you woke up and saw
          his face. Was he on top of you at that
          time?

          A:   He was on top of me.

          Q: Were you wearing any clothing at that
          time?

          A:   No, I was not.

          Q: Now, when you fell asleep, did you
          have any clothing on?

          A:   No, I did not.

          Q: So, you had fallen asleep without any
          clothes?


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United States v. Terlep, 01-0241/AF



          A:   That’s correct.

          Q: And when he was on top of you, was he
          wearing any clothing?

          A: Maybe some articles, like a shirt and
          that’s about it.

          Q:   Were his pants down or up?

          A:   They were [down].

          Q: Was he--how was it that he was
          touching your body?

          A: All I know is that when I told him to
          get off of me, he had to take his private
          part out of me and get off, and that’s
          all. I don’t know. When I was sleeping,
          I have no--I don’t know what he did to
          me. I have no recollection, because I
          was sleeping. I was--I didn’t think
          anybody was coming over or anything, so I
          don’t know. I just woke up when I
          noticed, you know, my--somebody was on
          top of me.

          Q: You told him--you screamed at him and
          told him to get off of you?

          A:   Yes, I told him get the fuck off.

          Q:   And again, what did he do?

          A: He got off when I told him, and he
          started putting on his clothes, whatever,
          you know, pull up his pants, get his
          stuff. Then he started going out of my
          room down the hallway. I grabbed my
          shirt, put it on and followed him out to
          make sure that he was leaving the house.
          Then I was out on the street and I was
          really upset. I was shocked and
          disorient[ed]. I told him “Do you know
          what you just did? Do you know that I’ve
          just been through, you know, something


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United States v. Terlep, 01-0241/AF


          horrible? What if,    you know,   you got me
          pregnant? What are    you doing   here?”
          Then he was like in   a rush to   go, and he
          says that he thinks   he better   go, and he
          left.

(R. 57-58) (emphasis added).


     She then testified about a later confrontation with

appellant sometime after this incident:


          Q:   What happened then?

          A: Then he came into the house and I was
          really upset. I was pretty much yelling
          at him, screaming, and I wanted him to
          admit what he had done--what he had done
          to me.

          Q:   What did he say?

          A: He kept looking at the ground. He
          didn’t really say anything. Like he had
          a look on his face like just empty.

          Q:   Did you do anything then?

          A: I told him that I was so upset. I
          said, “You know what? I’m not going to
          hit you with the broom.” Then I picked
          up part of my vacuum. I said, “This is,
          you know, I’m going to hit you with
          this.” Then he just walked on over to
          the middle of the living room and stood
          there while I, you know, kept hitting him
          with the part of the vacuum. He didn’t
          move or nothing, he just took it. He
          admitted--he said what he had done. He
          said, “I raped you.”

(R. 61-62) (emphasis added).




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United States v. Terlep, 01-0241/AF


     Trial counsel did not expressly ask for a greater sentence

in this case based on the victim’s purported rape by appellant.

He did note her experiences at the hospital with a “rape

protocol kit”; of standing naked while other people probed her

body; and her feelings of being “violated” and “contaminated” on

the night in question. (R. 116-117)   In his closing rebuttal

argument, he further asserted that the victim “has weathered the

storm of this whole incident with dignity and with a courageous

spirit to get up there and tell you what happened that night, to

tell you the truth.” (R. 127) (emphasis added).


                            ___ ___ ___

     The first two granted issues focus on the victim’s

sentencing testimony that on the night in question, she was also

raped by appellant, an offense for which he was neither tried

nor convicted.   They also address trial counsel’s assertion in

his sentencing argument that the victim spoke the truth in her

sentencing testimony.   Appellant recognizes that his defense

counsel did not object to this government evidence or argument.

He contends, however, that the admission of this testimony and

allowance of this argument was plain error under RCM 811(e)

(Issue I), and his counsel’s failure to object on this legal

basis constituted ineffective assistance of counsel.   (Issue II)




                                 9
United States v. Terlep, 01-0241/AF


        In order for plain error to be found, appellant must

establish, inter alia, that an error occurred.     See United

States v. Barner, 56 MJ 131, 138 n.5 (2001) (holding a complete

plain error analysis is not required if there was no error).

Here, appellant particularly argues that the victim’s testimony

concerning her purported rape by appellant was inadmissible

under RCM 811(e).    Relying on the opinion of the appellate court

below, he argues that aggravation evidence which goes “well

beyond” the facts stipulated to by the parties is “inconsistent

with the stipulation of fact” and, therefore, inadmissible.     The

appellate court below cited United States v. Faircloth, 45 MJ

172, 174 (1996), RCM 910(e), Manual, supra, and Article 45(a),

UCMJ, 10 USC § 845(a), as a basis for its construction of this

rule.


    R.C.M. 811(e) is the Rule for Courts-Martial that covers

stipulations of fact.    It states:


             (e) Effect of stipulation. Unless
             properly withdrawn or ordered stricken
             from the record, a stipulation of fact
             that has been accepted is binding on the
             court-martial and may not be contradicted
             by the parties thereto. The contends
             [sic] of a stipulation of expected
             testimony or of a document’s contents may
             be attacked, contradicted, or explained
             in the same way as if the witness had
             actually so testified or the document had
             been actually admitted. The fact that
             the parties so stipulated does not admit


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United States v. Terlep, 01-0241/AF


           the truth of the indicated testimony or
           document’s contents, nor does it add
           anything to the evidentiary nature of the
           testimony or document. The Military
           Rules of Evidence apply to the contents
           of stipulations.

(Emphasis added.)


     This Manual rule precludes the Government from evidencing

facts at a court-martial which “contradict” those agreed to in

an accepted stipulation of fact.      See also para. 154b, Manual

for Courts-Martial, United States, 1969 (Rev. ed.); United

States v. Gerlach, 16 USCMA at 385, 37 CMR at 5.     However, this

rule says nothing about precluding the parties from presenting

evidence which “goes beyond” the facts in the stipulation.

Generally speaking, stipulations of fact do not prohibit proof

of facts which are neither designated nor necessarily implied in

the stipulation.    See 83 C.J.S. Stipulations §§ 87 and 88

(2000).   Accordingly, error did not occur in appellant’s case if

the testimony of the victim did not contradict expressly or

implicitly the stipulation of fact.


    For several reasons, we conclude that the victim’s testimony

did not so contradict the stipulation of fact in this case.     See

United States v. Corpus, 882 F.2d at 551.     First, we note that

this stipulation of fact did not expressly state that a rape did

not occur that night.   Cf. United States v. Gerlach, supra.




                                 11
United States v. Terlep, 01-0241/AF


Second, the stipulation of fact did not expressly provide that

appellant’s assault with his hands on the victim’s “legs,”

“torso,” and “breasts” were the only touchings that occurred

that night.   Id.   Third, it was not necessarily inferable from

the sexual assaults stipulated to that a rape did not also

occur.   Cf. Harrison v. United States, 20 MJ 55, 60 (CMA 1985)

(Everett, C.J., concurring in the result).   Finally, defense

counsel, without caveat, indicated his understanding that the

stipulation of fact was limited in nature and the parties had

additional evidence as to the events of that evening.    (He said

to the military judge in his closing argument on sentencing:    “I

think you can tell from the structure of the plea agreement that

the facts were highly contested in this case, and both sides, in

recognizing that fact, came to the agreement that we came to.”

(R. 118))   See United States v. Cambridge, 3 USCMA 377, 384, 12

CMR 133, 140 (1953) (scope of stipulation to be measured by

intent of parties to it).   In these circumstances, we find that

the victim’s sentencing testimony did not contradict the

stipulation of fact in violation of RCM 811(e).


     An additional question we must address is whether trial

counsel’s sentencing argument constituted plain error.

Appellant, again relying on R.C.M. 811(e), particularly contends

that trial counsel was barred from arguing that the victim’s




                                 12
United States v. Terlep, 01-0241/AF


purported rape occurred as a matter of fact.   See United States

v. Gerlach, supra.    As noted above, we conclude that RCM 811(e)

did not prohibit trial counsel from presenting evidence as to

aggravating facts not expressly or implicitly covered by this

stipulation.   Accordingly, argument as to the occurrence of a

rape not particularly addressed in the stipulation was also not

prohibited by R.C.M. 811(e).   Cf. United States v. Gerlach,

supra.

   Of course, we do not hold that it is proper for a trial

counsel to express his personal opinion or belief that a

government witness is telling the truth.   See R.C.M. 919,

Discussion, Manual (1998 ed.), supra.   Such a statement, even as

part of an otherwise appropriate argument, would be improper.

See United States v. Cox, 45 MJ 153, 156 (1996); United States

v. Fuentes, 18 MJ 41, 52 (CMA 1984); see also TJAG Policy Number

26, Attachment One, Air Force Rules of Professional Conduct,

Rule 3.4(e) (4 Feb. 1998), based on ABA Model Rule of

Professional Conduct 3.4(e).   In the instant case, however, we

conclude that appellant has not carried his burden of

demonstrating that assistant trial counsel personally vouched

for the victim’s credibility in general or with respect to her

allegation of rape.   See United States v. Fuentes, supra.   In

our view, his argument could reasonably be construed as simply

calling the court’s attention to the victim’s fortitude in


                                 13
United States v. Terlep, 01-0241/AF


performing her civic duty as a witness in this personally

difficult case.   Accordingly, we see no obvious error on this

basis in this case.


     A final question we will address is whether defense

counsel’s failure to object to this evidence and argument under

RCM 811(e) constituted ineffective assistance of counsel.     See

generally Strickland v. Washington, 466 U.S. 668 (1984).      As a

general matter, we have repeatedly said that ineffective

assistance of counsel requires, inter alia, that “the defendant

must show that counsel’s performance was deficient.    This

requires showing that counsel made errors so serious that

counsel was not functioning as the ̀counseĺ guaranteed the

defendant by the Sixth Amendment.”    United States v. Dewrell, 55

MJ 131, 133 (2001).   We see no such errors in this case.


     The failure to pursue a legal claim is not necessarily

deficient conduct by counsel.   If that claim is not shown to

have a reasonable probability of being found meritorious as a

matter of law and fact, the failure to pursue it is not error

and certainly not ineffective assistance of counsel.   See United

States v. McConnell, 55 MJ 479, 481 (2001).   As noted above,

R.C.M. 811(e), Manual, supra, does not preclude the evidencing

of facts which are not expressly or by necessary implication

covered by the stipulation of fact.   Moreover, we have concluded


                                14
United States v. Terlep, 01-0241/AF


that the victim’s sentencing testimony did not contradict the

stipulation of fact in this case.    Accordingly, the failure to

make an RCM 811(e) objection in this case was not deficient

attorney conduct.

     Appellant has not further argued that his counsel were

ineffective for failing to secure an agreement limiting the

Government’s right to introduce aggravation evidence.   Moreover,

we see no obvious attorney error in failing to secure an

agreement between the parties not to evidence additional facts

on sentencing.   A limited or strict construction of the plea

agreement and stipulation in this case makes sense for both

parties.   For the Government, it avoided a contested trial.     For

the defense, a conviction for assault consummated by a battery

was a far better tactical outcome than a conviction for rape,

even if the Government retained its right to introduce evidence

that a rape may have occurred on the night in question.    See

para. 54e(2), Part IV, Manual, supra (bad-conduct discharge, six

months’ confinement, and total forfeitures is maximum punishment

for assault consummated by battery); cf. para. 45e(1), Part IV,

Manual, supra (death or such other punishment as a court-martial

may direct is maximum punishment for rape); see also United

States v. McConnell, supra at 484-85.    Accordingly, no deficient




                                15
United States v. Terlep, 01-0241/AF


counsel conduct occurred in failing to object on the basis of

RCM 811(e).2


      In closing, a military judge, in some cases, is required by

law to determine the sentence at a court-martial.            See Article

51(d), UCMJ, 10 USC § 851(d).        He or she must do so in

accordance with the limits and procedures set by the President.

See Articles 54 and 36, UCMJ, 10 USC §§ 854 and 856.            The Manual

for Courts-Martial provides that the judge must determine an

“appropriate sentence,” and RCM 1001(b)(4) permits evidence of

aggravating circumstances to be considered towards this end.3

See R.C.M. 1001(a)(1), Manual, supra.         Such rules provide for

accuracy in the sentencing process by permitting the judge to

fully appreciate the true plight of the victim in each case.

See United States v. Loya, 49 MJ 104, 108 (1998) (holding

evidence admissible on sentencing which provides a full or

complete picture of tragic event); United States v. Wilson, 47

MJ 152, 155-56 (1997); United States v. Irwin, 42 MJ 479, 482-83

(1995); see also United States v. Mullens, 29 MJ 398, 400 (CMA

1990).


    We do not decide the facts of this case.           However, the


2 Since we find no deficient attorney conduct by defense counsel in this





case, we need not address the additional prejudice question raised in Granted
Issue III.




                                      16
United States v. Terlep, 01-0241/AF


entrance of the Government and appellant into a plea bargain for

a lesser charge than rape does not change the facts as to what

happened to the victim that night in her view.           Furthermore, the

search for truth in the courtroom need not be dispensed with

simply because a plea agreement exists outside it.            The plea

agreement here did not expressly bar the victim in this case

from giving her complete version of the truth, as she saw it, to

the factfinder at the sentencing hearing.          Absent an express

provision in the pretrial agreement or some applicable rule of

evidence or procedure barring such evidence, this important

victim impact evidence was properly admitted.           See United States

v. Wilson, 47 MJ at 155-56.

      The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




3 RCM 1001(b)(4) was amended after appellant’s court-martial on October 6,





1999, by Executive Order Number 13140, effective November 1, 1999.


                                      17
