UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                       WOLFE, SALUSSOLIA, and ALDYKIEWICZ
                               Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                            Corporal TERRY J. LEYBA
                           United States Army, Appellant

                                    ARMY 20160159

                       Headquarters, United States Army South
                         Douglas K. Watkins, Military Judge
                 Lieutenant Colonel Jim Tripp, Staff Judge Advocate

For Appellant: Major Julie L. Borchers, JA; Jeffery C. King, Esquire (on brief);
Captain Steven J. Dray, JA; Jeffery C. King, Esquire (on reply brief).

For Appellee: Colonel Tamia M. Martin, JA; Captain Marc B. Sawyer, JA; Captain
Meredith M. Picard, JA (on brief).


                                     13 August 2018
                               ----------------------------------
                                SUMMARY DISPOSITION
                               ----------------------------------

Per Curiam:

       A panel of officers and enlisted members sitting as a general court-martial
convicted appellant, contrary to his pleas, of two specifications of sexual assault in
violation of Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920 (2012)
[UCMJ]. 1 The panel sentenced appellant to a dishonorable discharge, confinement
for three years, forfeiture of all pay and allowances, and reduction to the grade of E-
1. The convening authority approved the sentenced as adjudged.

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises two assignments of error, both of which merit discussion, but no relief.



1
 Consistent with appellant’s plea, the panel found appellant not guilty of two
specifications of sexual assault charged in the alternative to the specifications of
which appellant was convicted.
LEYBA—ARMY 20160159

                                  BACKGROUND

       Appellant and Specialist (SPC) MO attended a barbecue while serving in
Guantanamo Bay, Cuba. During the barbecue, SPC MO became extremely
intoxicated and was assisted to her barracks room by appellant and two other male
soldiers. Upon entering SPC MO’s room, they placed her on the bed. The two male
soldiers then departed the room, leaving appellant alone with SPC MO. After
waiting several minutes for appellant to come out, one of the soldiers began
knocking on SPC MO’s bedroom door, which was locked. No one answered.

       Specialist CM, a female soldier residing in the adjoining barracks room, heard
noise, woke up and entered the hallway to ascertain what was going on. After
speaking to the two soldiers standing outside SPC MO’s room, SPC CM started
banging on SPC MO’s room door. Eventually, SPC MO’s room door was opened.
Upon entering the room, SPC CM saw SPC MO passed out on her bed and naked
from the waist down. SPC CM also noticed appellant hiding behind the door and
told the two soldiers to get him out of the room.

       Shortly after appellant left SPC MO’s room, SPC CM told another female
soldier, SPC AL, what had just occurred. Specialist AL approached appellant and
asked him what happened. Appellant, who appeared intoxicated, responded that he
raped SPC MO and stated “I just wanted to stick my dick in something.” Appellant
then ran from the area. His departure resulted in a unit search that eventually
located him.

      During the subsequent CID investigation, appellant waived his rights and
admitted to performing oral sex on SPC MO while she was asleep and engaging in
sexual intercourse with her while she was unconscious. SPC MO had no memory of
what occurred between her and appellant in her room that night. She stated her last
memory of the night was drinking a shot of tequila during the barbecue and then,
“everything went black.” Specialist MO further testified the next thing she
remembered was waking up in the emergency room.

       When SPC MO arrived at the emergency room the morning of the assault, she
was still extremely intoxicated. 2 Once she was able to consent, Specialist MO
underwent a sexual assault forensic examination later that day. The examination
revealed several injuries to her vaginal area to include a laceration to the vaginal
wall, and bruising to the cervix and labia.




2
 Blood drawn approximately five hours after SPC MO took her last drink registered
her blood alcohol content at 0.268.



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LEYBA—ARMY 20160159

        In preparation for trial, appellant’s defense counsel requested the convening
authority appoint an expert consultant in the fields of psychology and the
psychological effects of alcohol on cognition and behavior. After the request was
denied, defense counsel filed a motion to compel the appointment of such an expert.
During the motion hearing, defense counsel amended their request to also have the
forensic psychologist assist in the area of false confessions. Defense counsel argued
an expert consultant in the area of false confessions was now necessary because
recently provided DNA evidence “suggested” that appellant’s admissions were
false. 3 After considering the evidence presented and the pleadings of the parties, the
military judge denied appellant’s motion to compel an expert consultant to assist in
either area. 4

                              LAW AND DISCUSSION

                             Denial of Expert Assistance

       On appeal, appellant asserts that he was denied the right to expert assistance
in the field of psychology where there was evidence that the victim was blacked out
rather than incapacitated and there was scientific evidence involving blood alcohol
content.

       An accused is entitled to expert assistance when he can show necessity.
United States v. Gunkle, 55 M.J. 26, 31 (C.A.A.F. 2001) (citing United States v.
Garries, 22 M.J. 288, 291 (C.M.A. 1986). The accused has the burden of
establishing that a reasonable probability exists that an expert would be of assistance
to the defense and that denial of expert assistance would result in a fundamentally
unfair trial. United States v. Freeman, 65 M.J. 451, 458 (C.A.A.F. 2008) (citations
omitted). There are three aspects to showing necessity: (1) why the expert
assistance is needed; (2) what would the expert assistance accomplish for the

3
  We reject the suggestion. The United States Army Criminal Investigative
Laboratory (USACIL) DNA report showed no semen was detected on SPC MO and
appellant’s DNA was not detected on SPC MO. While an amount of male DNA was
found on SPC MO’s pubic mound swabs and underwear swabs, the amount was
insufficient for identification purposes. Foreign DNA was found on appellant’s
underwear and penile corona swabs, but could not be conclusively interpreted.
Specialist MO’s DNA was found on appellant’s mouth and male DNA was detected
on SPC MO’s shorts, but it could not be conclusively interpreted.
4
  The military judge’s written decision denying appellant’s motion is contained in
the record but not initially apparent to the parties or this court because it was not
properly marked as an exhibit. Consequently, this court provided the parties an
additional opportunity to amend their pleadings based on the military judge’s written
decision. Neither party modified its submissions.



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LEYBA—ARMY 20160159

accused; and (3) why is the defense counsel unable to gather and present the
evidence that the expert assistance would be able to develop. United States v.
Gonzalez, 39 M.J. 459, 461 (C.A.A.F. 1994) (citations omitted).

       Courts review a military judge’s ruling on a request for expert assistance for
an abuse of discretion. United States v. Lee, 64 M.J. 213, 217 (C.A.A.F. 2006)
(citing Gunkle, 55 M.J. at 32). “The abuse of discretion standard is a strict one,
calling for more than a mere difference of opinion. The challenged action must be
‘arbitrary, fanciful, clearly unreasonable,’ or ‘clearly erroneous.’” United States v.
Lloyd, 69 M.J. 95, 99 (C.A.A.F. 2010) (citations omitted).

       In this case, the military judge denied appellant’s motion to compel an expert
consultant, reasoning: (1) the defense did not meets its burden under Rule for
Courts-Martial 905(c) because they failed to establish that they were unable to
gather and present evidence that the expert assistance would be able to develop in
these areas; 5 and (2) the defense failed to show why the denial of an expert
consultant would result in an unfair trial.

       We hold the military judge did not abuse his discretion in denying appellant’s
motion to compel an expert consultant because defense counsel clearly failed to meet
the third prong of Gonzalez and also failed to show that denial of expert assistance
would result in a fundamentally unfair trial. First, defense counsel provided
virtually no evidence as to what efforts they made and why they were thus unable to
understand, gather, develop, or present evidence in the areas of alcohol induced
blackouts or false confessions. Rather, defense counsel attempted to meet their
burden through unsupported assertions that they lacked the necessary education and
experience to even attempt such a task. 6 Second, defense counsel offered nothing in
either their written or oral pleadings that explained why a denial of expert assistance
in either area would result in a fundamentally unfair trial. Third, defense counsel’s
motion for expert assistance repeatedly conflated the issues with those relevant to a
request for an expert witness, to the point that it is difficult to make sense of the
motion.




5
 The military judge reasoned that because defense failed to establish the third prong
of Gonzalez it was unnecessary to address the remaining two prongs.
6
  Defense counsel asserted they needed a PhD to properly prepare a defense based on
false confessions.



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LEYBA—ARMY 20160159

              Sixth Amendment Right to Effective Assistance of Counsel

       Next, we turn to appellant’s second assignment of error, ineffective assistance
of counsel. On appeal, appellant asserts he was denied his Sixth Amendment right
to effective assistance of counsel when defense counsel failed to investigate the
possibility of a false confession, failed to request a false confession expert, and were
admonished on the record for lack of preparation. We find appellant has not met his
burden.

       To support an ineffective assistance of counsel claim, appellant must meet a
two-prong test that his defense counsels’ performance was deficient and that the
deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S.
668, 687 (1984); see also United States v. Green, 68 M.J. 360, 361-62 (C.A.A.F.
2010). We have the authority to resolve an ineffectiveness claim on the prejudice
prong, without resolving the first prong. 7 See Strickland, 466 U.S. at 697 (“If it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be followed.”).

      Appellant has not met his burden of establishing prejudice, that being “a
reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.” Strickland, 468 U.S. at 694. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id.

      Upon reviewing the record, we are convinced the result at trial would have
been the same even if counsel had obtained an expert consultant in the area of false
confessions.

      First and foremost, appellant has not asserted to this court that the confession
was indeed false, nor has he explained why additional investigation by counsel
would have discovered evidence of this claim.

       Additionally, appellant admitted on three different occasions that he sexually
assaulted SPC MO in her barracks room. There is nothing to support a conclusion
that appellant’s statements to either a subordinate soldier or the CID agents were
involuntary or coerced. Appellant’s explanation of the circumstances surrounding
his misconduct was also corroborated by credible witness testimony and physical
evidence. This included medical proof of physical injuries to SPC MO’s vaginal
area.

      The DNA results neither exonerated nor excluded appellant as a possible
perpetrator. Rather the DNA results were inconclusive. Contrary to appellant’s

7
 That we skip to the prejudice prong is not a concession that counsels’ performance
was deficient; we simply need not resolve that question here.



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LEYBA—ARMY 20160159

argument in support of the need for a false confession expert based on the DNA
results, here the inconclusive DNA results were not inconsistent with, nor did they
contradict, appellant’s multiple admissions.

      Lastly, appellant has not demonstrated that during the times of his admissions
he was either suffering from a submissive personality or some other condition that
rendered him susceptible to making false incriminatory statements in response to
accusations of committing serious criminal offenses.

                                  CONCLUSION

      Upon consideration of the entire record, the findings of guilty and the
sentence as approved by the convening authority are AFFIRMED.

                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




                                       MALCOLM H.
                                       MALCOLM     H. SQUIRES,
                                                      SQUIRES, JR.
                                                                JR.
                                       Clerk of
                                       Clerk of Court
                                                Court




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