UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                        CAMPANELLA, SALUSSOLIA, and FLEMING
                               Appellate Military Judges

                             UNITED STATES, Appellee
                                         v.
                        Staff Sergeant JIMMY R. PERRIGIN
                           United States Army, Appellant

                                      ARMY 20160183

                Headquarters National Training Center and Fort Irwin
                         James S. Arguelles, Military Judge
              Lieutenant Colonel Amber J. Roach, Staff Judge Advocate


For Appellant: Colonel Mary J. Bradley, JA; Major Julie L. Borchers, JA; Captain
Daniel C. Kim, JA (on brief).

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Major Cormac M. Smith,
JA; Captain Natanyah Ganz, JA (on brief).


                                        26 April 2018
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                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

SALUSSOLIA, Judge:

       In this case we hold the offense of communicating indecent language was
factually and legally insufficient. The only evidence of the indecent language—
charged as “the description of a sex dream wherein [appellant] was performing oral
sex on [the victim]” was the victim’s testimony, and she did not testify that
appellant told her it was a dream about oral sex. We also hold trial counsel’s
findings argument was improper, but it was not prejudicial to appellant.

       A military judge, sitting as a special court-martial, convicted appellant,
pursuant to his plea, of violating a general order in violation of Article 92, Uniform
Code of Military Justice, 10 U.S.C. § 892 (2012) [hereinafter UCMJ]. A panel
consisting of officers sitting as a special court-martial convicted appellant, contrary
to his pleas, of abusive sexual contact and communicating indecent language, in
violation of Articles 120 and 134, UCMJ, 10 U.S.C. §§ 920, 934. The convening
PERRIGIN—ARMY 20160183

authority approved the adjudged sentence of a bad-conduct discharge and reduction
to the grade of E-1.

      Appellant’s case is before this court for review pursuant to Article 66(c),
UCMJ. Appellant assigns two errors, both of which merit discussion, and one of
which merits relief.

                                  BACKGROUND

      As charged by the government, the offense of communicating indecent
language in violation of Article 134, UCMJ, required proof appellant “orally
communicate[d] to Ms. AM, certain indecent language, to wit: the description of a
sex dream wherein [appellant] was performing oral sex on Ms. AM . . .”

       During AM’s direct examination, she testified that appellant told her about a
sexual dream he had involving her. When trial counsel asked AM what appellant
told her about the dream, AM answered: “[h]e tells me that he has a dream that’s--
was sexual about me . . . .” Trial counsel again asked AM to describe what appellant
communicated to her about the content of the dream to which she answered, “[h]e
tells me about a sexual dream that has [sic] about me . . . .”

       When trial counsel attempted for the final time to elicit what appellant told
her about what had specifically occurred in his dream, AM’s answer was again non-
responsive, stating, “[t]here was multiple times [appellant awoke] in the middle from
the dream and has not been able to go back to sleep from what he told me.” On
cross-examination, AM admitted appellant had given a few specifics about the dream
but did not tell her that the two engaged in oral sex in the dream.

       The government also sought to prove the charge through appellant’s
statements to U.S. Army Criminal Investigation Command (CID) Special Agent (SA)
KW. While appellant admitted to SA KW that he told his daughter he had a dream
about her of a sexual nature, he adamantly denied telling her the dream was about
oral sex between them.

                              LAW AND ANALYSIS

             Factual Sufficiency of Communicating Indecent Language

       In accordance with Article 66(c), UCMJ, we review issues of legal and factual
sufficiency de novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002)
(internal citation omitted). 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, [we] are [ourselves] convinced of the accused’s
guilt beyond a reasonable doubt.” United States v. Turner, 25 M.J. 324, 325



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(C.M.A. 1987). The test for legal sufficiency 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.” Turner, 25 M.J. at 324;
see also United States v. Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002). In resolving
questions of legal sufficiency, we are “bound to draw every reasonable inference
from the evidence of record in favor of the prosecution.” United States v. Barner,
56 M.J. 131, 134 (C.A.A.F. 2001) (internal citations omitted).

      In reviewing appellant’s conviction for communicating indecent language to
AM in violation of Article 134, UCMJ, we are not convinced the offense was
committed. Appellant and AM were the only two present during the alleged
communication. In evaluating AM’s testimony and appellant’s statements to CID,
we find neither individual attested that appellant communicated certain language to
AM wherein he described having a dream in which he was performing oral sex on
AM. Because the record is bereft of evidence that actual indecent language was
communicated, we find the offense factually and legally insufficient.

                           Improper Argument on Findings

       Although appellant did not object to trial counsel’s findings argument at trial ,
he now asserts trial counsel committed prejudicial error through improper argument
on findings when he: 1) improperly interjected his personal views vouching for the
government’s witnesses and evidence; 2) made disparaging comments about
appellant that inflamed the prejudice of the panel; 3) argued that appellant should be
held to a higher standard because of his training and service as a SHARP
representative; and 4) argued facts not in evidence designed to inflame the passions
of the panel.

       While this court held in United States v. Kelly, 76 M.J. 793, 797-98 (Army Ct.
Crim. App. 2017), that a plain error analysis was not appropriate in analyzing
unpreserved error to argument, we recognize our superior court has granted review
in that case on that very issue. United States v. Kelly, No. 17-0559/AR, 2017 CAAF
LEXIS 1184 (C.A.A.F. 20 Dec. 2017) (order). Accordingly, as we recently did in
United States v. Koch, we will nonetheless review this case for plain error as a
matter of judicial economy. ARMY 20160107, 2018 CCA LEXIS 34, *11 (Army Ct.
Crim. App. 29 Jan. 2018) (mem. op.) (citing United States v. Motsenbocker, No.
201600285, 2017 CCA LEXIS 651, *7 (N.M. Ct. Crim. App. 17 Oct. 2017), noting
our sister service applied a plain error analysis to unpreserved objections to
argument).

       To establish plain error, appellant must prove: 1) there was error; 2) it was
plain or obvious; and 3) the error resulted in material prejudice. United States v.
Flores, 69 M.J. 366, 369 (C.A.A.F. 2011). As for the underlying error, “[i]mproper
argument is a question of law that we review de novo.” United States v. Marsh, 70



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M.J. 101, 104 (C.A.A.F. 2011) (citing United States v. Pope, 69 M.J. 328, 334
(C.A.A.F. 2011)).

       It is inappropriate for trial counsel to “offer[] substantive commentary on the
truth or falsity of the testimony and evidence.” Fletcher, 62 M.J. at 180 (internal
citation omitted). It is also inappropriate for trial counsel to calculate an argument
to inflame the passions of the panel members. Baer, 53 M.J. at 237. It is
inappropriate to argue evidence that is not of record or that is not reasonably derived
therefrom. Id.

      In cases of improper argument, we assess whether prejudice exists by
examining and balancing three factors: 1) the severity of the misconduct; 2) the
measures adopted to cure the misconduct; and 3) the weight of the evidence
supporting the conviction. Fletcher, 62 M.J. at 184; see also United States v. Frey,
73 M.J. 245, 249 (C.A.A.F. 2014). “[T]he argument by a trial counsel must be
viewed within the context of the entire court-martial. The focus of our inquiry
should not be on words in isolation, but on the argument as ‘viewed in context.’”
United States v. Baer, 53 M.J. 235, 238 (C.A.A.F. 2000) (quoting United States v.
Young, 470 U.S. 1, 16 (1985)).

        We agree with appellant that trial counsel engaged in improper argument in
several instances by interjecting his personal views to vouch for government
witnesses and evidence. When referring to AM’s testimony, trial counsel stated,
“We all know she’s truthful. She’s not a liar.” When commenting on appellant’s
guilt, trial counsel argued: 1) “We know that he touched her breast and inner thighs
not for a massage, but to feel them;” 2) “We know that he had . . . sexual dreams
about her;” and 3) “We know he intended to touch her breast for arousal . . . . We
know she did not consent.” We also find trial counsel improperly referenced former
Congressman Anthony Weiner, inviting a comparison to another matter, the facts of
which were not admitted into evidence and which bore no similarity to the case at
hand.

        It is difficult, however, to gauge how plain the impropriety of these
statements were in light of the overall disjointed, confused, and convoluted nature of
trial counsel’s argument.

       Even assuming the impropriety of trial counsel’s argument constitutes plain
error, we are confident there was no prejudice to appellant. Appellant’s confession
corroborates AM’s testimony and provides essentially uncontroverted evidence that
appellant touched AM’s inner thighs and breast without her consent. Therefore, we
are convinced that the court-martial convicted appellant of abusive sexual contact
based on the evidence before it and not on the inappropriate statements of trial
counsel. See United States v. Halpin, 71 M.J. 477, 479-80 (C.A.A.F. 2013);
Fletcher, 62 M.J. at 185.



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                                  CONCLUSION

       On consideration of the entire record, the finding of guilty to the
Specification and Charge III is set aside and dismissed. The remaining findings of
guilty are AFFIRMED. We are able to reassess the sentence on the basis of the error
noted and do so after conducting a thorough analysis of the totality of circumstances
presented by appellant’s case and in accordance with the principles articulated by
our superior court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F.
2013) and United States v. Sales, 22 M.J. 305 (C.M.A. 1986).

       In evaluating the Winckelmann factors, we find no change in the penalty
landscape as this is a special-court martial. Additionally, the remaining offenses
capture the gravamen of appellant’s misconduct. Finally, based on our experience,
we are familiar with the remaining offenses so that we may reliably determine what
sentence would have been imposed at trial. We are confident that based on the
entire record and appellant’s course of conduct, the panel would have imposed a
sentence of at least that which was adjudged.

       Reassessing the sentence based on the noted error and the remaining findings
of guilty, we AFFIRM the sentence as adjudged. We find this reassessed sentence is
not only purged of any error but is also appropriate. All rights, privileges, and
property, of which appellant has been deprived by virtue of that portion of the
findings set aside by our decision, are ordered restored.

      Senior Judge CAMPANELLA and Judge FLEMING concur.

                                       FORTHE
                                      FOR  THECOURT:
                                               COURT:




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




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