              U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                          ________________________

                               No. ACM 38973
                          ________________________

                             UNITED STATES
                                 Appellee
                                       v.
                        Andrew T. GRASSEY
           Airman First Class (E-3), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                            Decided 22 June 2017
                          ________________________

Military Judge: Shaun S. Speranza.
Approved sentence: Bad-conduct discharge, confinement for 8 months,
forfeiture of all pay and allowances, and reduction to E-1. Sentence ad-
judged 29 October 2015 by GCM convened at Seymour Johnson Air
Force Base, North Carolina.
For Appellant: Captain Patrick A. Clary, USAF.
For Appellee: Major Collin F. Delaney, USAF; Major Jeremy D. Gehman,
USAF; Gerald R. Bruce, Esquire.
Before DREW, J. BROWN, and MINK, Appellate Military Judges.
Judge MINK delivered the opinion of the court, in which Chief Judge
DREW and Senior Judge J. BROWN joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                          ________________________

MINK, Judge:
    A military judge sitting as a general court martial convicted Appellant, con-
sistent with his pleas and a pretrial agreement (PTA), of wrongfully producing
and possessing child pornography, in violation of Article 134, Uniform Code of
                    United States v. Grassey, No. ACM 38973


Military Justice (UCMJ), 10 U.S.C. § 934. The adjudged sentence consisted of
a bad-conduct discharge, confinement for nine months, forfeiture of all pay and
allowances, and reduction to E-1. In accordance with the PTA, the convening
authority approved only eight months of confinement, but otherwise approved
the adjudged sentence.
   Appellant raises one assignment of error: Whether the trial counsel’s sen-
tencing argument was improper. 1 Finding no error materially prejudicial to a
substantial right of Appellant, we affirm the findings and sentence.

                                  I. BACKGROUND
    In late 2013, Appellant, a 19-year-old Airman First Class, began chatting
with JK, a 15-year-old civilian, on an electronic chat program. Although JK
told Appellant she was 16 years old, she was, in fact, only 15 years old. Their
conversations became sexual, and Appellant asked JK to send him sexually-
explicit images. After she did so, Appellant asked her to download a video chat
program. She complied, and on 11 February 2014, they had a video chat. Dur-
ing that chat, Appellant, without JK’s knowledge or consent, used a different
program to record and save a copy of the video chat onto his computer. During
the video chat, Appellant directed JK to engage in sexually-explicit conduct,
including exposing her genitalia and masturbation. Over the course of several
hours that same day, Appellant made a total of three separate recordings and
saved them on his computer.

            II. DISCUSSION—IMPROPER SENTENCING ARGUMENT
    Appellant asserts that trial counsel’s sentencing argument was improper
in that trial counsel suggested Appellant was a sexual predator with a propen-
sity to commit similar crimes in the future. Appellant specifically focuses on
three portions of trial counsel’s sentencing argument as creating this sugges-
tion: (1) that Appellant was “grooming” JK; (2) that Appellant was “lurking on
social networking sites;” and (3) that Appellant would not be able to “troll da-
ting sites looking for local civilians to record” while in confinement. Trial de-
fense counsel did not object to any of these comments during trial counsel’s



1 Although not raised by Appellant, the Addendum to the Staff Judge Advocate’s Rec-
ommendation failed to “[l]ist each defense submission as a separate attachment to the
addendum,” as required by Air Force Instruction (AFI) 51-201, Administration of Mili-
tary Justice, ¶ 9.20.1.1 (6 Jun. 2013). Since the Defense submission was correctly iden-
tified as an attachment to the Addendum with the correct number of total pages stated
and the convening authority acknowledged that he considered “the attached matters”
before taking action on the case, we conclude that this error resulted in no prejudice to
Appellant, and no corrective action is required.


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                   United States v. Grassey, No. ACM 38973


argument. However, trial defense counsel did specifically address trial coun-
sel’s use of the word “grooming” and argued against any implication that Ap-
pellant was a child predator.
    Improper argument is a question of law that we review de novo. United
States v. Frey, 73 M.J. 245, 248 (C.A.A.F. 2014). Trial counsel may not inject
into argument “irrelevant matters, such as personal opinions and facts not in
evidence.” United States v. Schroder, 65 M.J. 49, 58 (C.A.A.F. 2007). When de-
termining whether a trial counsel’s argument was improper, we consider the
statements in the context of the entire court-martial. United States v. Carter,
61 M.J. 30, 33 (C.A.A.F. 2005).
    When there is no objection at trial, we review a trial counsel’s sentencing
argument for plain error. United States v. Halpin, 71 M.J. 477, 479 (C.A.A.F.
2013). Under a plain error analysis, an appellant must show “(1) there was an
error; (2) it was plain or obvious; and (3) the error materially prejudiced a sub-
stantial right.” United States v. Marsh, 70 M.J. 101, 104 (C.A.A.F. 2011). “The
legal test for improper argument is whether the argument was erroneous and
whether it materially prejudiced the substantial rights of the accused.” Frey,
73 M.J. at 248 (quoting United States v. Baer, 53 M.J. 235, 237 (C.A.A.F.
2000)). We must be “confident that [the appellant] was sentenced on the basis
of the evidence alone.” Frey, 73 M.J. at 248 (quoting Halpin, 71 M.J. at 480).
    Appellant asserts that it was improper for trial counsel to argue that Ap-
pellant was “grooming” JK. In context, trial counsel argued:
       [Appellant] controlled the narrative from the start. He met the
       victim on the KiK application and as soon as he starts meeting
       her, he starts grooming her, asking her to send him photographs
       of herself, of her breasts, of her buttocks, even asking her to per-
       form for him; asking her to send him pictures of her on all fours.
       And then he takes it to the next level with those Skype videos.
    Trial counsel’s argument was specifically related to Appellant’s interac-
tions with JK. It was not a generalized argument that Appellant had or would
“groom” other children. Our superior court has noted that “‘[g]rooming’ behav-
ior refers to the ‘sexualization of the relationship’ over time through repeated
contact and attempts to gain affection in preparation for sexual activity.”
United States v. Winckelmann, 70 M.J. 403, 408 n.6 (C.A.A.F. 2011) (quoting
United States v. Brand, 467 F.3d 179, 203 (2d Cir. 2006)); see also United States
v. Bressler, No. ACM 38660, 2016 CCA LEXIS 746, at *78 (A.F. Ct. Crim. App.
16 Dec. 2016) (unpub. op.) (finding no plain error for trial counsel to use
“‘grooming’ . . . as a non-scientific term and in a manner easily understood by
a lay member”).




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                  United States v. Grassey, No. ACM 38973


    Appellant’s relationship with JK began by him contacting her on social me-
dia. Over the course of time, he then engaged in a sexually-explicit conversa-
tion with her and asked her to send him sexually-explicit images. At his re-
quest, she downloaded a different application where he directed her to engage
in sexually-explicit conduct on video, which he recorded without her knowledge
or consent. Under the facts of this case, trial counsel’s characterization of Ap-
pellant’s actions leading up to his production of child pornography as “groom-
ing” was not plain error.
    Appellant also asserts that it was improper for trial counsel to argue that
Appellant was “lurking on social networking sites” and “troll[ing] dating sites
looking for local civilians to record.” In context, trial counsel argued:
           Your Honor, his crimes are even more troubling in light of
       the fact that he went out into the civilian community to commit
       them. The very foundation of our military is to protect the civil-
       ian population. We don’t expect our Airmen to be out there lurk-
       ing on social networking sites finding 15-year-old minors in the
       local area and then recording them performing sex acts on cam-
       era.
           ....
           . . . . The accused controlled, directed, and created those vid-
       eos without any regard for how they could affect his victim and
       he should receive 10 months in confinement to send a message
       not only to him, but to others that may hear of his crimes and
       the sentence, that if you commit these types of crimes, you will
       go to jail. That possessing and producing child pornography will
       not be tolerated in our Air Force and that if you commit these
       crimes there are real consequences. Ten months will send that
       message. That’s 10 months that Airman Grassey is not going to
       have access to a computer, 10 months he won’t be able to troll
       dating sites looking for local civilians to record, 10 months for
       him to reflect on his crimes, to reflect on how they have affected
       his victim and hopefully send a strong deterrent message to him
       to prevent this from ever happening again.
   Appellant compares trial counsel’s comments during his sentencing argu-
ment to those made by the trial counsel during argument to court members in
United States v. Frey. There, our superior court stated:
       [T]rial counsel . . . overstepped the bounds of proper argument
       . . . in requesting that members draw upon information not in
       evidence to make a specific conclusion about Appellant: that he



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                   United States v. Grassey, No. ACM 38973


       was a serial child molester who had offended before and in the-
       ory would offend again. [Trial counsel argued,] “Now, the De-
       fense Counsel said, ‘there’s no evidence before you that he’s ever
       done anything like this before.’ And there is no evidence before
       you. But think what we know, common sense, ways of the world,
       about child molesters.” . . . [O]ne is hard pressed to imagine
       many statements more damaging than the implication that
       someone who has been convicted of molesting a single child will
       go on to molest many more. Trial counsel’s insinuation that Ap-
       pellant was necessarily guilty of additional offenses and would
       be a serial recidivist if not confined was both unsubstantiated
       and severe.
Frey, 73 M.J. at 249.
    Appellant’s reliance on Frey is misplaced. Unlike the argument in Frey,
trial counsel in this case did not argue that the military judge should infer that
Appellant had previously engaged in this type of behavior or that the military
judge should use his “common sense” to conclude that Appellant would do so
unless confined. Rather, trial counsel drew the military judge’s attention to the
fact that Appellant was interacting with a 15-year-old civilian on a social net-
working application, and then argued that Appellant could not commit the type
of misconduct he committed in this case while in confinement. While Appellant
may not like trial counsel’s word choice in describing his behavior leading up
to his interactions with JK as “lurking on social networking sites,” it was not
an unfair inference from the evidence presented. Additionally, trial counsel’s
argument that Appellant would not be able to “troll dating sites looking for
local civilians to record” while in confinement was a fair argument regarding
the nature of confinement as specific deterrence. Trial counsel’s comments
were not plainly erroneous, and his sentencing argument was not improper.
    Even assuming that these statements and trial counsel’s argument were
plainly erroneous, they did not materially prejudice a substantial right of Ap-
pellant. The sentencing authority in this case was a military judge. Appellant
has presented no evidence that the military judge was impermissibly swayed
by trial counsel’s argument, and we find none. As part of the presumption that
military judges know and follow the law absent clear evidence to the contrary,
we “presume that the military judge is able to distinguish between proper and
improper sentencing arguments.” United States v. Erickson, 65 M.J. 221, 225
(C.A.A.F. 2007). This is true regardless of whether the military judge states on
the record what portion of the argument was improper and that it would not
be considered. Id. We are confident that Appellant was sentenced based on the
evidence alone. As such, he has not suffered material prejudice to a substantial
right.


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                    United States v. Grassey, No. ACM 38973


                                 III. CONCLUSION
    The findings of guilt and the sentence are correct in law and fact and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). 2 Accordingly, the find-
ings and sentence are AFFIRMED.


                   FOR THE COURT



                   KURT J. BRUBAKER
                   Clerk of the Court




2Appellant highlights that under Article 66 this court has the power to review issues
waived at trial. United States v. Chin, 75 M.J. 220, 223 (C.A.A.F. 2016). We agree with
Appellant that he affirmatively waived the issues of multiplicity and unreasonable
multiplication of charges and is, therefore, prohibited from raising them on appeal. Id.
The specifications for possession and production of child pornography are not facially
duplicative, and the charging scheme in this case does not require the exercise of our
extraordinary Article 66 powers. See id.; United States v. Lloyd, 46 M.J. 19, 20
(C.A.A.F. 1997).


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