UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                             TOZZI, CELTNIEKS. And BURTON
                                 Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                       Sergeant First Class PAUL E. THOMAS
                           United States Army, Appellant

                                      ARMY 20150269

                              Headquarters, Fort Bliss
                          Timothy F. Hayes, Military Judge
                   Colonel Karen H. Carlisle, Staff Judge Advocate


For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major Andres Vazquez,
Jr., JA; Major Daniel E. Goldman, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Anne C. Hsieh, JA; Captain Steve T. Nam, JA (on brief).


                                      24 October 2016

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

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

TOZZI, Senior Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of willful disobedience of a superior
commissioned officer, four specifications of violating a lawful general regulation,
one specification of false official statement, and two specifications of assault
consummated by a battery, in violation of Articles 90, 92, 107, and 128, Uniform
Code of Military Justice, 10 U.S.C. §§ 890, 892, 907, and 928 (2012) [hereinafter
UCMJ]. The military judge sentenced appellant to a bad-conduct discharge,
confinement for six months, and reduction to the grade of E-1. Pursuant to a pretrial
agreement, the convening authority approved only so much of the sentence extending
to a bad-conduct discharge, confinement for 120 days, and reduction to the grade of
E-4.
THOMAS—ARMY 20150269

       This case is before us for review pursuant to Article 66, UCMJ. Appellate
counsel raised one assignment of error which merits discussion but no relief.
Appellant personally raised matters pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982) which we find, after due consideration, to be without merit. In
his sole assignment of error, appellant alleges the military judge erred by
misinterpreting United States v. Griggs, 61 M.J. 402 (C.A.A.F. 2005), and
erroneously allowed the government to introduce impermissible rebuttal testimony
on sentencing. We disagree for the reasons set forth below.

                                   BACKGROUND

        Appellant was convicted, pursuant to his pleas of, inter alia, one specification
of violating a lawful general regulation by wrongfully having a relationship with
Private AP, and one specification of violating a lawful regulation by wrongfully
having a relationship with Sergeant AC. At the sentencing portion of trial, appellant
produced nine witnesses, five of whom testified, in pertinent part, that they would
serve with appellant again. In rebuttal, the government called four witnesses,
Private (PVT) AP, Sergeant (SGT) AC, Major (MAJ) JT, and Captain (CPT) JA, who
all testified that they would not want to serve with appellant again.

        Appellant asserts several reasons why the military judge erred by allowing the
government to introduce impermissible rebuttal testimony. With regard to the
testimony of PVT AP and SGT AC, appellant points out they both were victims in
the case, and both testified under a grant of immunity. Major JT, the brigade S-2
(intelligence officer), was the original investigating officer in the case. Appellant
avers that these witnesses cannot reasonably be found to represent “a consensus view
of the command.” United States v. Griggs, 61 M.J. 402, 410 (C.A.A.F. 2005)
(quoting United States v. Aurich, 31 M.J. 95, 96-97 (C.M.A. 1990)). In addition,
appellant asserts their testimony did not constitute proper rebuttal because none of
the defense witnesses called earlier in the proceeding had claimed MAJ JT, SGT AC,
or PVT AP wanted to serve with the appellant.

                              LAW AND DISCUSSION

       A military judge’s decisions to admit or exclude evidence are reviewed for an
abuse of discretion. United States v. Eslinger, 70 M.J. 193, 197 (C.A.A.F. 2011)
(citation omitted). In Griggs, our superior court held that Rule for Courts-Martial
[hereinafter R.C.M.] 1001(b)(5)(D), despite precluding a witness from offering an
opinion on whether an accused should receive a punitive discharge, “does not apply
to defense mitigation evidence, and specifically does not preclude evidence that a
witness would willingly serve with the accused again.” 61 M.J. at 409. The Griggs
court went on to hold:




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THOMAS—ARMY 20150269

             Consistent with the historical concerns regarding command
             influence, the Government is free to rebut such assertions. As
             stated in Aurich, [31 M.J. at 95-97], if an accused ‘opens the
             door’ by bringing witnesses before the court who testify that
             they want him or her back in the unit, the Government is
             permitted to prove that that is not a consensus view of the
             command.”

Id. at 410 (citation omitted). Our superior court continues to adhere to this view.
Eslinger, 70 M.J. at 198. The court in Eslinger went on to caution that such rebuttal
testimony must not “raise the specter of command influence.” Id. at 199 (quoting
Griggs, 61 M.J. at 408). Also, as the Military Rules of Evidence are applicable to
sentencing, “a lay witness must have a proper foundation to offer an opinion.”
Eslinger, 70 M.J. at 199. Importantly, the court in Eslinger stated:

             However, we hasten to note that evidence that the defense
             witnesses’ views are not a consensus view of the command
             simply means that retaining the accused is not the view of
             every member of the command. It does not necessarily
             mean that the Government may parade the commanding
             officer and the rest of the accused’s chain of command to
             have them give a command view on retention. That would
             depend on just how wide the defense opened the door.”

Id. (citations and quotation marks omitted).

       It is apparent from the record that the testimony of the government witnesses,
called in response to the “retention evidence” proffered by the defense witnesses was
proper rebuttal testimony, clearly contemplated by our jurisprudence and that of our
superior court. The defense assertion that this testimony was somehow improper
because no defense witness had specifically claimed that Private AP, Sergeant AC,
or Major JT wanted to serve with appellant is without merit. To lend credence to
this argument would eviscerate the holdings in Griggs and its progeny. Regarding
the specific rebuttal witnesses called by the government, it is apparent that the
testimony of Captain JA, appellant’s company commander, did not raise the specter
of command influence, particularly in light of the parade of defense witnesses
willing to testify that they would again serve with appellant. Further, the record
demonstrates that the rebuttal witnesses were all familiar with the appellant’s
character and that a proper foundation was laid for their opinions. Finally, the
testimony of the government rebuttal witnesses clearly demonstrate that retaining
appellant “is not the view of every member of the command.” Griggs, 61 M.J. at
410. The military judge did not abuse his discretion by allowing the government
rebuttal evidence in this case.




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THOMAS—ARMY 20150269

                                  CONCLUSION

     Upon consideration of the entire record, the findings and sentence are
AFFIRMED.

      Judge CELTNIEKS and Judge BURTON concur.


                                      FORTHE
                                     FOR  THECOURT:
                                              COURT:




                                     MALCOLM
                                      MALCOLMH.   H.SQUIRES,
                                                     SQUIRES,JR.
                                                              JR.
                                     Clerk
                                      Clerkof
                                            ofCourt
                                               Court




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