              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                Before
             K.J. BRUBAKER, M.C. HOLIFIELD, A.Y. MARKS
                       Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                     JAMES P. BRANEN
   HULL MAINTENANCE TECHNICIAN FIRST CLASS (E-6), U.S. NAVY

                           NMCCA 201400412
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 25 July 2014.
Military Judge: LtCol C.J. Thielemann, USMC.
Convening Authority: Commander, Navy Region Northwest,
Silverdale, WA.
Staff Judge Advocate's Recommendation: LCDR E.K. Westbrook
II, JAGC, USN.
For Appellant: LT Douglas Ottenwess, JAGC, USN; LT Jessica
L. Ford, JAGC, USN.
For Appellee: LT Ann E. Dingle, JAGC, USN.

                            27 October 2015

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                     OPINION OF THE COURT

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

HOLIFIELD, Judge:

     A panel of members with enlisted representation sitting as
a general court-martial convicted the appellant, contrary to his
pleas, of two specifications of sexual abuse of a child in
violation of Article 120b, Uniform Code of Military Justice, 10
U.S.C. § 920b. The members sentenced him to four years’
confinement, total forfeiture of pay and allowances, reduction
to pay grade E-1, and a dishonorable discharge. The convening
authority (CA) approved the sentence as adjudged.

        The appellant raises four assignments of error (AOEs):

        (1) the military judge improperly denied a challenge
        for cause against a member whose close family member
        was the victim of sexual abuse as a child;

        (2) the trial counsel voiced a personal opinion on
        witness credibility, disparaged the trial defense
        counsel, discussed facts not in evidence, and
        commented on the appellant’s exercise of his
        constitutional rights;

        (3) the staff judge advocate (SJA) failed to comment
        on claims of legal error the appellant raised in his
        clemency request; and,

        (4) the evidence is legally and factually
        insufficient to prove the appellant had the required
        specific intent. 1

     After carefully considering the record of trial and the
parties’ submissions, we are convinced the findings and sentence
are correct in law and fact and that no error materially
prejudicial to the substantial rights of the appellant occurred.
Arts. 59(a) and 66(c), UCMJ.

                                 Background

     On 28 September 2013, the appellant attended a party at his
neighbor’s house. Among the neighbor’s daughters were C.A., age
15, and V.A., age 10. Also present was J.D., a 12-year-old
friend of V.A. At the party the appellant drank alcohol to the
point that he was slurring his speech, stumbling, and running
into walls. J.D. testified that at one point during the party
the appellant was staring at her, and shortly thereafter told
her, “Me and you will hang out – just me and you hang out in 15
minutes.” 2

     Later, around midnight, J.D. awoke to see the appellant
standing at the foot of the bed where she and V.A. were

1
  This assignment of error is raised pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982).
2
    Record at 417.
                                      2
sleeping. After approximately five minutes, the appellant left
and she fell back to sleep. J.D. awoke again to find the
appellant in her room, this time close to the bedside. Saying
“scoot over, I want to lay in bed with you,” 3 the appellant
placed his hand on her upper thigh and buttocks. J.D. resisted
his efforts, and the appellant left. In response to C.A. seeing
him leave the girls’ bedroom, the appellant said he was looking
for the bathroom. J.D. and V.A. immediately went downstairs and
reported the incident to V.A.’s mother, who then walked J.D.
home. The appellant followed them to J.D’s house, and asked if
everything was alright. According to V.A.’s mother, the
appellant looked “worried.” 4

     C.A. subsequently reported that, a few weeks prior to 28
September, the appellant had touched her as well. C.A. was at
her home watching a movie with her siblings and their friends
when the appellant arrived with a bottle of alcohol and began
watching the movie with them. The appellant initially sat on a
different couch than C.A., but, after the other children left to
play elsewhere, the appellant moved to sit beside C.A. The
appellant then used his feet to play with hers, moving closer to
her on the couch. He then placed his hand on C.A.’s thigh as
she attempted to move as far as she could away from him. At
that point, C.A.’s brother re-entered the room, and C.A. told
appellant to leave because the children were going to bed. The
appellant left the home at that time, but was later found asleep
on one of the couches.

     Additional facts necessary to address the AOEs will be
provided below.

                             Discussion

I.     Challenge for Cause

     During individual voir dire, a potential member, LT L,
revealed that he had a close family member who was the victim of
child sexual abuse before LT L was born. The family member is
not “very much affected” by the abuse, which was first
described, without details, to LT L five or six years ago. 5 When
asked how this experience might affect his performance as a

3
    Id. at 402.
4
    Id. at 323.
5
    Id. at 187, 183.


                                 3
court-martial member, LT L said the experience would “make [him]
ask questions,” but he did not think it would “get [his]
feelings involved and ruin[] [his] objectivity.” 6 In response to
the military judge asking whether LT L’s association with that
family member would impact his ability “to sit as a fair and
impartial member of this case,” LT L said, “I will maintain my
objectivity, sir.” 7 He further stated, “I have to put it aside
because this is someone’s life, and if I would put myself in
their shoes, I would want someone to disassociate, put their
feelings aside and be able to look at just the facts, and use
the facts to come to a decision.” 8

     The defense challenged LT L on the basis of implied bias.
The military judge denied the challenge, finding neither actual
nor implied bias, even when considering the liberal-grant
mandate.

     We review a military judge’s ruling on a challenge for
cause based on implied bias “under a standard less deferential
than abuse of discretion, but more deferential than de novo.”
United States v. Woods, 74 M.J. 238, 243 (C.A.A.F. 2015)
(quoting United States v. Downing, 56 M.J. 419, 422 (C.A.A.F.
2002)). The test for implied bias is one of public perception
that requires us “to look[] to an objective standard in
determining whether implied bias exists. . . . In reaching a
determination of whether there is implied bias, namely, a
‘perception or appearance of fairness of the military justice
system,’ the totality of the circumstances should be
considered.” Id. (quoting United States v. Peters, 74 M.J. 31,
34 (C.A.A.F. 2015)).

     We conclude there is no risk that the public would perceive
that the appellant received anything less than a fair trial.
First, there is no evidence LT L’s close relation with a victim
of child sexual abuse played any part in his being detailed to
the court-martial. The CA was almost certainly unaware of the
relationship, as there was no mention of it on LT L’s
questionnaire. Second, LT L’s responses during voir dire make
clear to any reasonable observer that LT L would not allow this
experience to affect his impartiality or objectivity in deciding
the case. And, third, the facts as described by LT——that the
abuse occurred before he was born, that he learned of the abuse

6
    Id. at 187.
7
    Id. at 189.
8
    Id. at 190.
                                4
over five years ago, and that the abuse does not affect his
family member very much——could not raise a reasonable doubt
concerning the fairness of our justice system. Thus, we find
the military judge did not abuse his discretion in denying the
challenge.

II. Improper Argument

    The appellant alleges a number of trial counsel’s improper
comments during closing argument resulted in material prejudice
to his substantial rights. We disagree.

Background

        The alleged improprieties are summarized as follows:

        1.   Stating personal opinion and vouching:

             a. C.A. was a “very brave girl” who gave
        “powerful testimony.” 9

             b. C.A. was “not somebody that’s making up
        this allegation. She’s a very credible young
        girl.” 10

             c. “C.A. has been extremely consistent about
        this allegation, and her consistency is evident
        throughout the testimony you heard . . . .” 11

              d. Certain facts are “undisputed.” 12

        2.   Disparaging defense counsel:

             a. “The defense just shot a lot of
        countermeasures, but the chaff can only get you so
        far. You’ve had some time for the noisemakers to
        quiet down. Let’s talk about the facts that are
        actually in evidence.” 13

9
     Id. at 532.
10
     Id.
11
     Id. at 533.
12
     Id. at 528, 529, 534 (defense objected at 538).
13
     Id. at 572 (defense objected).
                                         5
            b. “And frankly, the courtroom is not theater
       of the absurd, it’s about facts and rational
       arguments.” 14

       3.    Referring to facts not in evidence:

            a. On J.D.’s testimony: “He touched her
       thigh, her—I think she even said her upper inner
       thigh a couple of times, and then he touched her
       buttocks.” 15

                b. “The memory . . . it’s not going to give
           you a perfect playback, but what it can do is
           give you a gist. That’s what the headshrinkers
           call it: gist memory, the core, the important
           stuff.” 16

           4. Commenting on the appellant exercising his
           right to confront witnesses and to defend against
           the charges:

                a. “And the real tragic thing about bringing
           a child-abuse case like--sexual abuse case like
           this to trial is that the children have to come
           in here and they have to tell you what happened.
           They have to sit here in this chair and re-live
           those experiences. That’s the real tragic thing
           about this case.” 17

                b. “And in the rest of the trial, after
           they’re—they sit up here and they tell you in
           their words what happened, when C.A. gets up here
           in tears and tells you how horrible she feels,
           the defense spends the rest of their trial trying
           to discredit them, spent the rest of trial trying
           to show the accused didn’t mean to do what he did
           or it wasn’t that big of a deal.” 18

14
     Id.
15
  Id. at 527-28.      J.D. did not testify that the appellant touched her “inner”
thigh.
16
     Id. at 576-77.
17
     Id. at 526-27.
18
     Id. at 527.


                                         6
     The trial defense counsel objected to the use of the term
“undisputed.” The military judge provided a curative
instruction: “Members . . . I will just remind you that the
burden of proof in this case is on the government, and that the
defense is not required to produce any evidence, and that
government is required to prove every element beyond a
reasonable doubt for the offenses charged.” 19 The defense also
objected to the statement regarding “countermeasures” and
“chaff.” The military judge did not rule on the objection, but
instructed trial counsel to “focus on the facts.” 20 None of the
other comments drew an objection at trial.

Law

     Improper argument is a question of law reviewed de novo.
United States v. Marsh, 70 M.J. 101, 104 (C.A.A.F. 2011). When
proper objection is made at the trial level, we will review
those comments for prejudicial error. United States v.
Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005) (citing Art. 59,
UCMJ). When there is no objection, we review for plain error.
Id. “Plain error occurs when (1) there is error, (2) the error
is plain or obvious, and (3) the error results in material
prejudice to a substantial right of the accused.” Id. (citation
omitted). Thus, regardless of whether an objection was made at
trial, any such error must be reviewed for prejudice.

     “In assessing prejudice, we look at the cumulative impact
of any prosecutorial misconduct on the accused’s substantial
rights and the fairness and integrity of his trial.” Id. at 184
(citation omitted). That is, whether the comments, taken as a
whole, were “so damaging that we cannot be confident that the
members convicted the appellant on the basis of the evidence
alone.” Id.

     In Fletcher, the Court of Criminal Appeals for the Armed
Forces enumerated the factors relevant to an assessment of
prejudice: (1) the severity of the misconduct, (2) any curative
measures taken, and (3) the strength of the Government’s case.
“Indicators of severity include (1) the raw numbers—the
instances of misconduct as compared to the overall length of the
argument, (2) whether the misconduct was confined to the trial
counsel’s rebuttal or spread throughout the findings argument or
the case as a whole; (3) the length of the trial; (4) the length

19
     Id. at 542.
20
     Id. at 572.


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of the panel’s deliberations, and (5) whether the trial counsel
abided by any rulings from the military judge.” Id. (citation
omitted).

Analysis

     We are not compelled to address every comment of trial
counsel here, as we find, at a minimum, that the trial counsel’s
comments on the appellant exercising his right to confront
witnesses and to defend against the charges were plain error.
See United States v. Clifton, 15 M.J. 26, 30 (C.M.A. 1983)(“it
was unconscionable for trial counsel repeatedly to emphasize
appellant’s assertion of his rights.”) Based on this error——and
assuming arguendo that the other comments were likewise error——
we now review for prejudice.

     a. Severity of misconduct. The severity was low. The
trial counsel’s statements cited by the appellant are isolated
comments within a summation totaling over 17 pages. None of
these statements reflect themes woven throughout the argument or
the Government’s case-in-chief in any meaningful way. The
members deliberated for approximately 90 minutes on a single
charge with two specifications, reviewing relatively limited
evidence, where the only issue substantially contested was the
appellant’s intent. 21 In response to defense objections, the
military judge reminded the members of the Government’s burden
and directed trial counsel away from shoal water. The trial
counsel followed this direction.
     b. Curative Measures taken. Besides the curative
instruction mentioned, the military judge instructed the members
that the arguments of counsel are not evidence, that they must
base their decision on the evidence as they remember it, and to
disregard any comments of counsel that conflict with the judge’s
instructions. He also instructed the members of their exclusive
duty to determine witness credibility.

     c. Strength of the Government’s case. The Government’s
case, although primarily based upon the testimony of two
children, was reasonably strong when taken as a whole. Given
all this, we are confident in the members’ ability to adhere to
the military judge’s instructions and to put counsel’s arguments

21
  The total evidence before the members consisted of the testimony of five
percipient witnesses, one character witness, and four photographs of V.A.’s
bedroom.
                                      8
in their proper context. We are equally confident that the
members convicted the appellant on the basis of the evidence
alone.

III.   Staff Judge Advocate’s Recommendation

      The appellant next alleges that the SJA’s failure to
comment on allegations of legal error raised in the appellant’s
RULE FOR COURTS-MARTIAL 1105, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012
ed.), clemency submission requires we remand this case for new
post-trial processing. We disagree.

     The SJA’s recommendation in this case is dated 16 October
2014. The appellant, through counsel, submitted clemency
matters on 14 November 2014. In his clemency request, the
appellant argued that the evidence at trial was insufficient to
support his conviction under Article 120b. 22 Specifically, the
appellant argued there was no evidence of an intent to gratify
his sexual desires, but if there was any such evidence, his
level of intoxication on both occasions raised serious doubt
regarding his ability to form this intent. The SJA did not
prepare an addendum to his recommendation in response to the
clemency request or otherwise comment on this allegation of
legal error. In his action, the CA stated that he had reviewed,
inter alia, the record of trial and all matters submitted by the
appellant in the 14 November 2014 clemency submission. The CA
took action on 14 November 2014.

     When a sentence includes a punitive discharge or
confinement for one year or more, a CA must receive a written
recommendation from his or her SJA before taking action on the
case. Article 60(d), UCMJ; R.C.M. 1106(a). In that
recommendation the SJA must state “whether, in the [SJA’s]
opinion, corrective action on the findings or sentence should be
taken when an allegation of legal error is raised in matters
submitted under R.C.M. 1105 or when otherwise deemed appropriate
by the [SJA].” R.C.M. 1106(d)(4).

     The SJA’s failure to do so in this case constitutes error,
but we find no prejudice. As explained below, we find the
evidence both factually and legally sufficient to sustain the

22
  The appellant’s trial defense counsel describes the alleged error under the
heading “Factual Sufficiency.” But she then analyzes the matter in terms of
both legal and factual sufficiency. We will examine this AOE as if trial
defense counsel had raised both issues, and leave for now the question of
whether factual insufficiency alone constitutes “legal error” within the
meaning of R.C.M. 1105(b)(2).
                                      9
appellant’s conviction. We will not find prejudicial error in
the SJA’s failure to comment on allegations of error when “there
is no error in the first instance at trial.” United States v.
Welker, 44 M.J. 85, 89 (C.A.A.F. 1996) (citation omitted).
There being no impact on the appellant’s substantial rights, we
decline to remand for a new recommendation and action.

IV.   Legal and Factual Sufficiency

     We review questions of factual and legal sufficiency de
novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002). The test for legal sufficiency is “whether considering
the evidence in the light most favorable to the prosecution, a
reasonable fact finder could have found all the essential
elements beyond a reasonable doubt.” United States v.
Humphreys, 57 M.J. 83, 94 (C.A.A.F. 2002) (internal quotation
marks and citations omitted). In weighing questions of legal
sufficiency, the court is “bound to draw every reasonable
inference from the evidence in the record in favor of the
prosecution.” United States v. Barner, 56 M.J. 131, 134
(C.A.A.F. 2001) (citations 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 convinced of the accused’s guilt
beyond a reasonable doubt. United States v. Turner, 25 M.J.
324, 325 (C.M.A. 1987). Proof beyond a reasonable doubt does
not mean, however, that the evidence must be free from conflict.
United States v. Goode, 54 M.J. 836, 841 (N.M.Ct.Crim.App.
2001).

     The appellant was charged with two specifications of sexual
abuse of a child. For each specification, the Government had to
prove the appellant committed a lewd act, that is, sexual
contact with the intent to arouse or gratify the sexual desire
of any person.   The appellant claims the evidence was both
legally and factually insufficient to establish he had such
intent. We disagree. Both C.A. and J.D. clearly and
consistently described how the appellant touched them——C.A. on
the thigh, J.D. on the thigh and buttocks. Although the
appellant had been drinking on both occasions, the
circumstantial evidence, taken as a whole, shows that the
appellant touched them with the intent to gratify his sexual
desire.

     In C.A.’s case, the appellant moved to sit beside her on
the couch, attempted to play with her feet, moved closer to C.A.
as she attempted to distance herself from him, and placed his

                                10
hand on her thigh more than once. Although drinking, there was
no evidence that he was drunk to the point of stumbling or
slurring his words.

     In J.D.’s case, the appellant twice entered the room where
J.D. slept, after earlier staring at her and telling her they
would “hang out” that night. He touched her as he attempted to
climb into her bed. While descriptions of the appellant’s level
of intoxication varied, none showed him to be so drunk that he
was unaware of his actions or their probable results. In fact,
his demeanor and questions after he followed C.A.’s mother and
J.D. to J.D.’s home indicate a clear appreciation of what he had
done.

     After reviewing the record of trial and considering the
evidence in the light most favorable to the prosecution, we are
convinced that a reasonable fact finder could have found all the
essential elements beyond a reasonable doubt. Furthermore,
after weighing all the evidence and having made allowances for
not having personally observed the witnesses, we are convinced
beyond a reasonable doubt of the appellant's guilt.

                           Conclusion

     The findings and the sentence, as approved by the CA, are
affirmed.

     Senior Judge BRUBAKER and Judge MARKS concur.


                                For the Court




                                R.H. TROIDL
                                Clerk of Court




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