UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                           Before
                            MULLIGAN, FEBBO, and SCHASBERGER
                                  Appellate Military Judges

                               UNITED STATES, Appellee
                                            v.
                           Staff Sergeant MICHAEL J. GUINN
                              United States Army, Appellant

                                       ARMY 20170500

                 Headquarters, U.S. Army Aviation Center of Excellence
                            Richard J. Henry, Military Judge
               Lieutenant Colonel Leslie A. Rowley, Staff Judge Advocate


For Appellant: Captain Heather M. Martin, JA; Catherine M. Cherkasky, Esquire
(on brief).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Eric K. Stafford,
JA; Major Hannah E. Kaufman, JA; Captain Marc B. Sawyer, JA (on brief).

                                         28 March 2019

                                   ---------------------------------
                                   MEMORANDUM OPINION
                                   ---------------------------------

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

SCHASBERGER, Judge: (Part I – Legal and Factual Sufficiency; Cruel and Unusual
Punishment Related to Post-Trial Confinement Conditions)

      Staff Sergeant (SSG) Michael J. Guinn appeals his conviction for committing
a lewd act on a minor and the conditions of his confinement. For his conviction,
appellant argues the evidence was not legally or factually sufficient. For his
conditions of confinement, appellant argues the confinement facility’s policy
regarding contact with his biological children unlawfully increases his sentence to
confinement. In a split opinion, we disagree. 1

1
 Appellant’s other assigned error – related to an alleged improper argument – does
not warrant discussion or relief. Appellant also personally submitted matters
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), which do not
warrant discussion, relief, or a post-trial evidentiary hearing pursuant to United
States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967).
GUINN—ARMY 20170500

       A panel with enlisted members sitting as a general court-martial convicted
appellant, contrary to his pleas, of one specification of sexual abuse of a child, in
violation of Article 120b, Uniform Code of Military Justice, 10 U.S.C. § 920b
[UCMJ]. 2 The panel sentenced appellant to a dishonorable discharge, confinement
for four years, total forfeiture of all pay and allowances, and reduction to the grade
of E-1. The convening authority approved the sentence as adjudged. Appellant’s
case is now before us under Article 66, UCMJ.

                                     BACKGROUND

                                      A. The Offense

       In the summer of 2016, AC’s grandmother picked AC up from her home and
observed what she felt was grooming behavior by SSG MN, a family friend of AC’s
parents. The grandmother told AC’s mother, SC, what she had observed. SC asked
AC if she had ever been touched inappropriately. AC responded that “[EG’s] daddy
had licked [AC’s] privates.” Appellant is EG’s father. After hearing this, SC called
MN’s wife and reported AC’s comment to Criminal Investigation Command (CID).
After speaking with CID, SC called SSG MN and told him that he would probably
get contacted by CID.

       When interviewed by CID, AC reported that the assault happened during the
night she slept over at appellant’s house. This sleepover happened after a birthday
party for EG’s sister in 2014, when AC was six years old. AC was sleeping on some
pillows and blankets in the living room and woke up to appellant’s head between her
legs and licking her genitals. She did not tell anyone until her mother asked. 3

       At trial, AC testified about the assault. Her testimony had some inconsistent
details with the testimony of her mother and appellant’s wife, JG. Both women had
similar recollections of JG driving AC home the next day and going shopping at a
flea market. AC, now ten years old, remembered walking home from the Guinn
residence. In addition to details contradicted by other witnesses, AC added details
that she did not report before. At trial, AC also insisted the movie the kids watched
that night was How to Train Your Dragon II.

       The defense introduced evidence that How to Train Your Dragon II did not
come out until six months after the birthday party. The defense argued AC lacked
credibility because of the inconsistencies in her statements. The defense also argued
that appellant was asleep before JG went to bed and never got up during the night.

2
    The panel acquitted appellant of one specification of rape of a child.
3
 During his CID interview, appellant gave a statement denying that he assaulted AC.
He had very vague recollections of the birthday party.



                                             2
GUINN—ARMY 20170500

                            B. Conditions of Confinement

       In September 2017, appellant began to serve his sentence to confinement at
the Joint Regional Confinement Facility (JRCF) at Fort Leavenworth, Kansas. At
the time, the JRCF policy on visitation was that inmates convicted of a child sexual
offense could have no contact with any children – to include their biological
children – unless they received an exception to policy. 4 However, prior to an
exception to policy being considered, the inmate had to admit guilt and complete a
treatment program for sexual offenders.

      This policy was codified in Military Correctional Complex Standard
Operating Procedure (MCC SOP) 310. For example, one section of MCC SOP 310
expressly stated:

             a. All child sex offenders desiring contact with their minor
             child (biological/adopted only) must request and receive
             approval for an exception to policy by submitting an MCC
             Form 510, Inmate Request Slip through the DTP to the
             USDB Deputy Commandant or JRCF Deputy to the
             Commander, as applicable, for decision. Inmates
             requesting contact must have completed Sex Offender
             Treatment (SOT) group.

             (1) If the inmate has not completed SOT group, DTP shall
             forward the MCC Form 510, a memo regarding completion
             of SOT, and the contact order to the USDB Deputy
             Commandant or JRCF Deputy to the Commander, as
             applicable, for review and decision. DTP shall provide a
             copy of the USDB Deputy Commandant’s or JRCF Deputy
             to the Commander’s, as applicable, decision to the inmate,
             informing the inmate they must complete SOT group prior
             to consideration for an exception to policy.

(emphasis in original).

       Another section explains the policy was designed to preclude any “written,
telephonic, or in-person contact with any minor child” without the necessary
exception to policy. The JRCF Deputy to the Commander later clarified this
restriction by ordering appellant not to have any “direct” or “indirect” contact with
his children, to include “through a third party,” or he would “face punitive action.”


4
 In November 2018, the policy was amended to allow prisoner contact with children
under certain conditions that appellant does not currently meet.



                                          3
GUINN—ARMY 20170500

      Appellant repeatedly requested access to his biological children through the
appropriate prison request channels, to include requesting redress under Article 138,
UCMJ. Appellant also raised this issue in the matters he submitted to the convening
authority prior to action.

                              LAW AND DISCUSSION

                           A. Legal and Factual Sufficiency

       We conduct a de novo review of legal and factual sufficiency. United States
v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). “The test for legal sufficiency of
the evidence is ‘whether, considering the evidence in the light most favorable to the
prosecution, a reasonable factfinder could have found all the essential elements
beyond a reasonable doubt.’” United States v. Humpherys, 57 M.J. 83, 94 (C.A.A.F.
2002) (quoting United States v. Turner, 25 M.J. 324 (C.M.A. 1987)). The test for
factual sufficiency “is whether, after weighing the evidence in the record of trial and
making allowances for not having personally observed the witnesses,” the court is
“convinced of the accused’s guilt beyond a reasonable doubt.” Turner, 25 M.J. at
325.

      Appellant’s argument is that the prosecution’s proof fails because the
inconsistencies in AC’s testimony, coupled with the existence of another suspect,
amounts to reasonable doubt. We are not persuaded by this argument.

       First, as to whether the evidence is legally sufficient, we answer in the
affirmative. The elements of sexual abuse of a child 5 as charged required the
government to prove that: (1) appellant committed a lewd act upon AC by touching
her vulva; (2) that AC was under 12 years of age; and (3) that appellant did so with
the intent to abuse, humiliate, harass, or degrade or to arouse or gratify the sexual
desire of either appellant or AC. Upon reviewing AC’s testimony, we are convinced
that a rational factfinder could conclude beyond a reasonable doubt that appellant
touched AC’s vulva and did it to arouse or gratify his sexual desire.

       Second, as to the issue of factual sufficiency, we are convinced of appellant’s
guilt beyond a reasonable doubt. The inconsistencies in AC’s testimony as
compared to her initial recollection two years after the event do not make AC
unbelievable. We find it significant that she immediately named “[EG’s] daddy,”
and there is no evidence that AC had a motive to lie or implicate appellant if in fact

5
  In his brief, appellant argues that his conviction for rape of a child is legally and
factually insufficient. On that, we would agree; in fact, so did the panel, who
acquitted appellant of that offense. We address the legal and factual sufficiency of
the specification of which appellant was convicted to preclude any confusion over
our analysis and conclusion.



                                            4
GUINN—ARMY 20170500

she was being inappropriately touched by someone else. While we agree that SC’s
response of calling Mrs. MN (and later SSG MN) was ill-advised, it does not change
AC’s testimony.

                        B. Post-Trial Confinement Conditions

       Appellant alleges that the confinement visitation policy unlawfully increases
his sentence in violation of Article 55, UCMJ, and the First, Fifth, and Eighth
Amendments. We first address appellant’s Article 55 and Eighth Amendment
claims.

       We review allegations of cruel and unusual punishment under a de novo
standard. United States v. White, 54 M.J. 469, 471 (C.A.A.F. 2001). The Eighth
Amendment prohibits “cruel and unusual punishments.” Likewise, Article 55,
UCMJ, prohibits a court-martial from adjudging or any person from inflicting “any
other cruel or unusual punishment.” “In our evaluation of both constitutional and
statutory allegations of cruel or unusual punishment, we apply the Supreme Court’s
Eighth Amendment jurisprudence ‘in the absence of legislative intent to create
greater protections in the UCMJ.’” United States v. Pena, 64 M.J. 259, 265
(C.A.A.F. 2007) (quoting United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F.
2006)).

       The Supreme Court has found that the Eighth Amendment prohibits more than
just “physically barbarous punishments.” Estelle v. Gamble, 429 U.S. 97, 102
(1976). Instead, the Eighth Amendment prohibits punishments that are
“incompatible with the evolving standards of decency that mark the progress of a
maturing society” or those “which involve the unnecessary and wanton infliction of
pain.” Estelle, 429 U.S. at 102-03 (internal quotation marks and citations omitted).

       Our superior court has established a three-part test to determine whether a
prisoner’s claim that the conditions of confinement violate the Eighth Amendment is
cognizable. Lovett, 63 M.J. at 215. An appellant must show: (1) an objectively,
sufficiently serious act or omission resulting in the denial of necessities; (2) a
culpable state of mind on the part of prison officials amounting to deliberate
indifference to appellant’s health and safety; and (3) that appellant has exhausted the
prisoner-grievance system and petitioned for relief under Article 138, UCMJ. Id.

       Applying this test to the facts at hand, we conclude that the concept of
“necessities” as used in the context of the Eighth Amendment does not extend to
contact with minors. Courts have traditionally found the failure to provide food,
sufficient housing, and prevent torture to be denials of necessities. See, e.g., Hutto
v. Finney, 437 U.S. 678 (1978); Rhodes v. Chapman, 452 U.S. 337 (1981). In
certain circumstances, the “deliberate indifference to serious medical needs” has
also been found to violate the Eighth Amendment. White, 54 M.J. at 474 (quoting



                                           5
GUINN—ARMY 20170500

Estelle, 429 U.S. at 104-05); see also Farmer v. Brennan, 511 U.S. 825, 834 (1994)
(Prison officials must have a “sufficiently culpable state of mind,” which is one of
“deliberate indifference” to inmate health). 6

       In contrast, courts have found that solitary confinement, even long term
solitary confinement, does not violate the Eighth Amendment. See United States v.
Avila, 53 M.J. 99 (C.A.A.F. 2000). If the general denial of human contact is not a
deprivation of life’s necessities, we do not believe that the deprivation of contact
with one’s biological children constitutes a deprivation of a necessity. Our sister
court has similarly concluded that an appellant’s inability to have contact with minor
family members while incarcerated for a sexual offense against children is not a
violation of the Eighth Amendment. See United States v. Green, ACM 36664, 2007
CCA LEXIS 475, at *2-6 (A.F. Ct. Crim. App. 12 Oct. 2007); see also United States
v. Felicies, NMCCA 9900206, 2005 CCA LEXIS 124, at *29-35 (N-M. Ct. Crim.
App. 27 Apr. 2005) (rejecting a number of Eighth Amendment and Article 55 claims
related to post-trial confinement conditions).

       In addition to failing the first prong of the analysis, we also find that
appellant has not shown a culpable state of mind on the part of prison officials.
There is no punitive intent in the application of the policy. While one may question
the policy as overly broad, the prison officials clearly believe it has a legitimate
underlying purpose. By enforcing the policy, prison officials did not show
deliberate indifference to appellant’s health and safety. 7

      While we do not need to look to the third prong of the test, as appellant
cannot meet either of the first two prongs, we note that appellant has clearly
exhausted his administrative remedies. He initially raised the issue to the convening
authority prior to action and has subsequently and consistently exercised his rights
within the prison grievance system.

      Senior Judge MULLIGAN and Judge FEBBO concur in Part I.


6
  In White, our superior court discussed Farmer, explaining how it “defined two
factors that are necessary for an Eighth Amendment claim to succeed regarding
conditions of confinement.” 54 M.J. at 474. The first factor is an “objective
component,” in which the act or omission must be “sufficiently serious.” Id.
(quoting Farmer, 511 U.S. at 834) (citations omitted). The second factor, as
outlined above, “is subjective, testing for a culpable state of mind.” Id.
7
  This analysis is based on the good faith belief that prison officials had regarding
the legitimacy of the policy during the time between appellant’s incarceration and
his affidavit. Should the prison officials understanding of the legitimacy of the
policy change, likewise this analysis would change.



                                           6
GUINN—ARMY 20170500

MULLIGAN, Senior Judge: (Part II – First Amendment and Fifth Amendment
Claims Related to Post-Trial Confinement Conditions)

       For many of the reasons outlined by the majority opinion and concurring
opinion in Jessie, appellant’s First and Fifth Amendment claims – related to child
visitation prior to completion of child sex offender treatment – remain “unsuitable
for an [Article 66] sentence appropriateness assessment.” United States v. Jessie,
ARMY 20160187, 2018 CCA LEXIS 609, at *13 (Army Ct. Crim. App. 28 Dec.
2018) (mem. op.). For example, as in Jessie, there is another court that is better
positioned to address appellant’s complaints:

             [T]o the extent that appellant’s claims are meritorious,
             there exists a court that has the authority to order actual
             (i.e., injunctive) relief. The Tenth Circuit has determined
             that military prisoners at Fort Leavenworth may file suit
             in U.S. District Court seeking injunctive and declaratory
             relief for oppressive prison conditions. See Walden v.
             Bartlett, 840 F.2d 771, 774-75 (10th Cir. 1988) (finding
             such requests are not specifically barred by Feres v.
             United States, 340 U.S. 135 (1950)). And the ability to
             grant injunctive and declaratory relief are not the only
             benefits. Our jurisdiction over this case exists only during
             the snapshot in time between when the convening
             authority acts and when we issue our judgment. A U.S.
             District Court is not so constrained.

2018 CCA LEXIS 609, at *18-19.

       Simply put, these are claims that “we are poorly positioned to consider, and
that within the structure of the military justice system [are] better entrusted to a
determination by persons other than this Article I court.” Id. at *16. As such, we
decline to address appellant’s First and Fifth Amendment claims. 8

                                   CONCLUSION

      The findings of guilty and the sentence are AFFIRMED.

      Judge FEBBO concurs in Part II.



8
 As in Jessie, we note that our “decision today is case specific, and should not be
understood as prohibiting or disincentivizing similar (or dissimilar) requests.” Id. at
*19.



                                           7
GUINN—ARMY 20170500

SCHASBERGER, Judge dissenting from Part II:

      As in Jessie, I respectfully dissent. 9

       Our mandate under Article 66, UCMJ, is to affirm only “the sentence or such
part or amount of the sentence, as [we find] correct in law and fact and determine[],
on the basis of the entire record, should be approved.” We can only fulfill this
mandate by analyzing potential violations of an appellant’s constitutional rights
related to post-trial confinement conditions. This is especially true when we are
already analyzing a different constitutional right related to the same conditions.

       I see no viable reason why we should consider appellant’s Eighth Amendment
and Article 55 claim, but then decline to consider his First and Fifth Amendment
claims. I also find this distinction runs contrary to the language of White, in which
the concurring judge stated the opinion “squarely held” that “the lower courts have
the duty . . . to review whether the sentence imposed by a court-martial is being
unlawfully increased by prison officials.” United States v. White, 54 M.J. 469, 475
(C.A.A.F. 2001) (Sullivan, J., concurring) (emphasis added).

       Furthermore, unlike Jessie, appellant did raise this issue to the convening
authority. As such, I find it is even more important and appropriate for us to
consider this issue as part of our Article 66 review. See, e.g., United States v.
Beatty, 64 M.J. 456, 458 (C.A.A.F. 2007) (“What constitutes the ‘entire record’ for
review of sentence appropriateness has been understood to include not only evidence
admitted at trial, but also the matters considered by the convening authority in his
action on the sentence.” (citations omitted)).

        In sum, and as outlined by my dissent in Jessie, I would find that appellant’s
First Amendment rights were violated, but I would not find any violation of his Fifth
Amendment rights. 2018 CCA LEXIS 609, at *25-34 (Schasberger, J. dissenting). I
would then consider whether this violation changed appellant’s sentence from one
that is appropriate to one that is inappropriately severe.

                                                FOR THE
                                                FOR THE COURT:
                                                        COURT:




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


9
 See United States v. Jessie, ARMY 20160187, 2018 CCA LEXIS 609, at *25-38
(Army Ct. Crim. App. 28 Dec. 2018) (mem. op.) (Schasberger, J. dissenting).



                                            8
