UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                               SIMS, COOK and BURTON
                                Appellate Military Judges

                           UNITED STATES, Appellee
                                       v.
                        Specialist MICHAEL A. GARNER
                         United States Army, Appellant

                                   ARMY 20080401

      United States Army Transportation Center and School and Fort Eustis
                       Theresa Gallagher, Military Judge
       Lieutenant Colonel Francis P. King, Staff Judge Advocate (pretrial)
 Lieutenant Colonel Timothy J. Cody, Staff Judge Advocate (recommendation and
                                  addendum)


For Appellant: Cate OCallahan, Esquire (argued); Captain John L. Schriver, JA;
Captain Tiffany K. Dewell, JA; Captain Michael E. Korte, JA; Cate OCallahan,
Esquire; Anita Gorecki, Esquire (on brief).

For Appellee: Captain Kenneth W. Borgnino, JA (argued); Colonel Michael E.
Mulligan, JA; Major Amber J. Williams, JA; Major Katherine S. Gowel, JA; Captain
Kenneth W. Borgnino, JA (on brief).

                                  29 November 2011

                              ----------------------------------
                               SUMMARY DISPOSITION
                              ----------------------------------


Per Curiam:

        A military panel comprised of officers and enlisted members sitting as a
general court-martial convicted appellant, contrary to his pleas, of desertion,
disobeying a lawful order, rape, sodomy, possession of child pornography, and
indecent assault in violation of Articles 85, 90, 120, 125, and 134 of the Uniform
Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 885, 890, 920, 925, and
934. The panel sentenced appellant to be dishonorably discharged, to be confined
for life with the possibility of parole, to forfeit all pay and allowances, and to be
reduced to the grade of Private E1. The convening authority approved the sentence
as adjudged and credited appellant with 338 days of confinement against the
sentence to confinement. The convening authority waived the automatic forfeiture
of all pay and allowances for a period of six months, effective 17 July 2009.
GARNER— ARMY 20080401


       This case is before us for review pursuant to Article 66, UCMJ. Before this
court, appellant alleges two assignments of error, both of which merit discussion but
no relief. Additionally, in light of our superior court’s recent decision in United
States v. Fosler, 70 M.J. 225, 226 (C.A.A.F. 2011), we will also examine the
government’s failure to allege the terminal elements of Article 134, UCMJ in
Specification 1 of Charge III.

                              LAW AND DISCUSSION

                          Ineffective Assistance of Counsel

       In his first assignment of error, appellant argues that he received ineffective
assistance of counsel. We disagree.

       When raising a claim of ineffective assistance of counsel, appellant has the
burden of overcoming the presumption that his counsel are competent. United States
v. Saintaude, 56 M.J. 888, 892 (Army Ct. Crim. App. 2002). Appellant must show
counsel’s performance was so deficient that counsel was not functioning as the
“counsel” guaranteed by the Sixth Amendment. Id. He must also establish that those
deficiencies resulted in prejudice to him. This normally amounts to a showing that,
but for the deficient performance, the outcome would have been different. United
States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009), citing Strickland v. Washington,
466 U.S. 668 (1984).

       Appellant claims his trial defense counsels’ performance was deficient in the
pre-sentencing phase of his court-martial because they called no witnesses and
presented no documentary evidence. After reviewing the affidavits submitted by the
trial defense counsel and assistant trial defense counsel, as well as the content of the
proffered testimony of the witnesses that appellant argues should have been called,
we are convinced that appellant’s counsel made a reasonable tactical decision in
limiting the defense case in mitigation to appellant’s brief unsworn statement. 1
Within the context of the nature of the charges and specifications of which appellant
had just been convicted, we see no value whatsoever in calling relatives and family
members as witnesses or submitting statements from them to indicate they believed
appellant was a good family man and/or that they held derogatory opinions of the
victim and her brother. Likewise, the calling of military witnesses to testify as to
appellant’s military service when appellant had previously received an Other Than
Honorable Discharge would have had little or no positive impact on appellant’s
sentence and risked opening the door to damaging rebuttal evidence.

1
  Our review of the affidavits of the trial defense counsel indicates that the tactical
decisions in regard to the pre-sentencing case were based upon numerous witness
interviews and other pre-trial preparation.


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GARNER— ARMY 20080401

        Additionally, we note that the record of trial reflects that appellant’s defense
team was active and effective during the pre-sentencing phase of his court-martial.
In addition to arranging for appellant to give a brief unsworn statement, defense
counsel effectively cross-examined government witnesses and successfully objected
to the admission of harmful testimonial and documentary evidence offered by the
government. Appellant’s defense counsel also successfully objected to trial
counsel’s sentencing argument on three separate occasions as the trial counsel was
encouraging the panel to sentence appellant to confinement for life without the
possibility of parole. Thereafter, the assistant defense counsel persuasively argued
that life without parole would effectively preclude the possibility of appellant ever
being rehabilitated, and ultimately prevented the imposition of the government’s
requested sentence.

       Accordingly, under the unique facts of this case, we find that defense team’s
performance constituted “reasonably effective assistance, an objective standard to be
measured ‘under prevailing professional norms.’” United States v. Dorsey, 30 M.J.
1156, 1159 (A.C.M.R. 1999), quoting Strickland, 466 U.S. at 688. This being the
case, counsel’s performance was proper and adequate under the circumstances and
we need not reach the question of prejudice. Mazza, 67 M.J. at 474.

             Images of “a Child” as opposed to Images of “Children”

      In his second assignment of error, appellant notes that he was convicted of
possessing unlawful “images of children” when in fact all 59 of the charged images
were of the same child. Accordingly, appellant requests that this court “correct the
language of Specification 2 of Charge III to accurately reflect the evidence.” We
agree and will take corrective action in our decretal paragraph.

            Failure to Plead Terminal Elements of Article 134, UCMJ

        Although not raised by the appellant, we note that Specification 1 of Charge
III fails to specifically allege at least one of the three clauses commonly referred to
as the “terminal element” of Article 134. 2 The three clauses are: that the accused’s
conduct was (1) “to the prejudice of good order and discipline,” (2) “of a nature to
bring discredit upon the armed forces,” or (3) a “crime[ or] offense[ ] not capital.”
Article 134, UCMJ, 10 U.S.C. § 934. United States v. Fosler, 70 M.J. 225, 226
(C.A.A.F. 2011).

       Although appellant pleaded not guilty to all of the charges and specifications,
to include Specification 1 of Charge III, he neither objected to the absence of the

2
  Appellant’s pleadings were filed and oral arguments were heard before this court
prior to the publication of the decision of the Court of Appeals for the Armed Forces
in United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011).


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GARNER— ARMY 20080401

terminal elements in that specification, nor objected to their absence in his post-trial
submissions to the convening authority or in his pleadings before this court. As
evidenced by his otherwise vigorous defense against all of the charges, we see no
indication that he was misled by the failure to include the terminal elements. 3
Likewise, appellant is in no danger of double jeopardy in regard to the offense at
issue.

      Whether a charge and specification state an offense is a question of law that is
reviewed de novo. United States v. Crafter, 64 M.J. 209, 211 (C.A.A.F. 2006).
Together, the charge and specification must “alleg[e], either expressly or by
implication, every element of the offense, so as to give the accused notice and
protection against double jeopardy.” Id. (quoting United States v. Dear, 40 M.J. 196,
197 (C.M.A. 1994)). Where a charge and specification are not challenged at trial,
however, their language is to be liberally construed. United States v. Roberts, __
M.J. ___, slip op. at 4 (Army Ct. Crim. App. 14 Oct. 2011)(citing United States v.
Watkins, 21 M.J. 208, 209–10 (C.M.A. 1986)). This liberal rule of interpretation is
applicable even where an appellant does not plead guilty. United States v. Fox, 34
M.J. 99, 102 (C.M.A. 1992); Roberts, __ M.J. at ___, slip op. at 5; United States v.
Berner, 32 M.J. 570, 572 (A.C.M.R. 1991).

       Because the charge and its specification are being reviewed for failure to state
an offense for the first time, we view the charge and specification “with greater
tolerance” than a charge and specification which were “attacked before findings and
sentence.” United States v. Watkins, 21 M.J. 208, 209 (C.M.A. 1986). A charge and
specification initially challenged on appeal, while being liberally construed, will not
be held invalid “absent a clear showing of substantial prejudice to the accused --
such as a showing that the indictment is so obviously defective that by no reasonable
construction can it be said to charge the offense for which conviction was had.”
Watkins at 209-210 (quoting United States v. Thompson, 356 F.2d 216, 226 (2d Cir.
1965), cert. denied, 384 U.S. 964 (1966)) (internal quotation marks omitted).

      As a result, we will not set aside the indecent assault specification in this case
without a clear showing of substantial prejudice. Such a showing has not been
made. Accordingly, we find that Specification 1 of Charge III, when liberally
construed, states an offense.




3
 Additionally, we note that the language of Specification 1 of Charge III clearly
embraces an allegation of conduct that is both prejudicial to good order and
discipline and service discrediting in that Specification 1 alleges that appellant at or
near Fort Story, Virginia, committed an indecent assault upon his under-aged
biological daughter by fondling her breasts with the intent to gratify his sexual
desires.


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GARNER— ARMY 20080401

                                   CONCLUSION

       On consideration of the entire record, to include the submissions of the
parties, oral arguments, and the matters personally raised by appellant pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), the court affirms only so
much of the finding of guilty of Specification 2 of Charge III as finds that appellant
did, on divers occasions between 1 December 2006 and 31 December 2006, at Fort
Story, Virginia, wrongfully and knowingly view or possess child pornography,
depicting images of a child that was or appeared to be under the age of 18, engaged
in sexual acts, including: pictures of his biological daughter, S.R.G., a person under
the age of 18, in various stages of undress, posed in a lewd or lascivious manner and
engaged in fellatio, which conduct, under the circumstances, was to the prejudice of
good order in the armed forces, or was of a nature to bring discredit upon the armed
forces. The remaining findings of guilty are affirmed.

       Reassessing the sentence on the basis of the errors noted, the entire record,
and in accordance with the principles of United States v. Sales, 22 M.J. 305 (C.M.A.
1986) and United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), to include the
factors identified by Judge Baker in his concurring opinion, the court affirms the
sentence.


                                                        FOR THE COURT:




                                                        MALCOLM H. SQUIRES, JR.
                                                        Clerk of Court




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