UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                           BURTON, HAGLER, and FLEMING
                              Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                          Specialist ERICK A. NAVARRO
                           United States Army, Appellant

                                   ARMY 20160673

                      Headquarters, III Corps and Fort Hood
             G. Bret Batdorff and Douglas K. Watkins, Military Judges
                  Colonel Susan K. Arnold, Staff Judge Advocate


For Appellant: Captain Benjamin J. Wetherell, JA; Terri R. Zimmermann, Esq.;
Jack B. Zimmerman, Esq. (on briefs).

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Captain Jeremy Watford, JA
(on brief).


                                   18 January 2019

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                               SUMMARY DISPOSITION
                               --------------------------------

FLEMING, Judge:

      In this case, we hold appellant’s defense counsel were not ineffective in that
they made reasonable tactical decisions at trial.

       An officer panel sitting as a general court-martial convicted appellant, contrary
to his plea, of one specification of sexual assault in violation of Article 120, Uniform
Code of Military Justice, 10 U.S.C. § 920 (2012) [hereinafter UCMJ]. The panel
sentenced appellant to a dishonorable discharge, confinement for three years, total
forfeiture of all pay and allowances, and reduction to Private (E-1). The convening
authority approved the dishonorable discharge, confinement for three years, and
NAVARRO–ARMY 20160673

reduction to Private (E-1). 1 Appellant’s case is now pending review before this court
pursuant to Article 66, UMCJ. Appellant asserts four assigned errors; one merits
discussion, and none merit relief.

                                  BACKGROUND

      Appellant sexually assaulted Private First Class (PFC) TMK by penetrating
her anus with his penis while she was incapable of consenting to the sexual act and
by causing bodily harm to her. 2 Appellant and PFC TMK presented very different
versions of the events surrounding the offense.

       Appellant told Criminal Investigation Command (CID) Special Agent (SA)
MA that PFC TMK and appellant engaged in consensual vaginal intercourse at
approximately 1400 hours in the afternoon while alone in a hotel room. Prior to the
sexual act, appellant said he twice asked PFC TMK if she wanted to engage in sexual
intercourse to which she affirmatively responded. Appellant denied engaging in any
anal intercourse with PFC TMK. After the sexual intercourse, appellant and PFC
TMK met three other service members at a nearby movie theater. After the movie,
PFC TMK purchased alcohol for the group and the group returned to the hotel room.
Private First Class TMK, appellant, and two of the other three service members
started drinking alcohol. 3 Appellant admitted PFC TMK became intoxicated from
her alcohol consumption. Appellant denied engaging in any sexual intercourse with
PFC TMK that evening or into the next morning while she was intoxicated.

       Private First Class TMK testified she did not engage in any sexual intercourse
with appellant at approximately 1400 hours in the afternoon in the hotel room. She
stated appellant did not ask her whether she wanted to engage in sexual intercourse.
Private First Class TMK testified she was alone in the hotel room with appellant for
approximately an hour in the afternoon and they merely talked. After this


1
 The convening authority deferred and then waived the adjudged and automatic
forfeitures, with the direction that these funds be paid to appellant’s wife.
2
  The two separate actus rei of appellant penetrating PFC TMK while she was
incapable of consent and by bodily harm were originally charged as two separate
specifications, which were later merged by the military judge into one specification.
3
  Private First Class TMK drank the majority of alcohol in a Bailey’s liquor bottle.
She started slurring her words, stumbling around the hotel room, and was heavily
intoxicated. Two eyewitnesses testified on a sliding scale of one being the lowest
and ten being the highest that PFC TMK’s level of alcohol intoxication was a seven
or eight.




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NAVARRO–ARMY 20160673

conversation, appellant, PFC TMK, and three other service members met at the
movie theater. After the movie and purchasing alcohol, the group returned to the
hotel room. Private First Class TMK recalled drinking one glass of hard liquor.
After this drink, PFC TMK remembers watching TV in bed and her next memory was
awakening to appellant penetrating her anus. She told appellant to stop but he
continued. Private First Class TMK testified she awoke the next morning,
confronted appellant regarding the situation, and appellant denied that any sexual
activity occurred. Private First Class TMK described having anal pain and
discharge.

       After departing the hotel room, PFC TMK sought medical treatment from a
Sexual Assault Nurse Examiner (SANE). The SANE observed tears in PFC TMK’s
anus and dried secretions on her buttocks. The SANE took swabs from PFC TMK’s
rectal area for DNA testing, which later confirmed the presence of appellant’s DNA.
Private First Class TMK advised the SANE that she had experienced an approximate
twelve hour amnesic period from after her first drink into the next morning. Private
First Class TMK reported to the SANE that she had several medication prescriptions
but an administered drug-screening test produced a negative result as to her use of
any prescription drugs.

       We now pause to note this is not the usual case involving a single sexual act
between an accused and a victim and the need to determine what occurred within
that specific event. This case involves a more novel requirement to determine which
sexual act occurred between the two proffered versions – appellant’s assertion of
consensual vaginal intercourse in the afternoon versus PFC TMK’s assertion of
nonconsensual anal intercourse in the evening. This case entirely turns on whether
appellant or PFC TMK deliberately lied.

       Appellant now asserts his trial defense counsel were ineffective for failing to:
(1) present testimony from an expert witness regarding “the effects the medications
can have on a person’s perception and memory or the definition and effects of an
amnesic period”; (2) cross-examine PFC TMK about the effects of her medications;
(3) cross-examine PFC TMK about possible inconsistent statements she made
regarding her medication usage; (4) cross-examine the SANE regarding the effects
of PFC TMK’s medication or about her amnesic period; and (5) present witnesses
regarding appellant’s character for truthfulness or peacefulness during the merits. 4


4
  Appellant also asserts his counsel were ineffective because they did not challenge
for cause several panel members on implied bias grounds or object to alleged
Military Rule of Evidence [Mil. R. Evid] 404(b) evidence that appellant “failed out
of AIT [Advanced Individual Training].” Having found appellant’s alleged error
that the military judge abused his discretion by failing to sua sponte excuse panel

                                                                       (continued . . .)


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NAVARRO–ARMY 20160673

                              LAW AND DISCUSSION

       The Sixth Amendment guarantees an accused the right to the effective
assistance of counsel. United States v. Gooch, 69 M.J. 353, 361 (C.A.A.F. 2011)
(citing United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001)). To establish that
his counsel was ineffective, appellant must satisfy the two-part test, “both (1) that
his counsel’s performance was deficient, and (2) that this deficiency resulted in
prejudice.” United States v. Green, 68 M.J. 360, 361-62 (C.A.A.F. 2010) (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)). We review both prongs of the
Strickland test de novo. United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009)
(citations omitted). “As the Supreme Court has emphasized, a reviewing court ‘must
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.’” United States v. Tippit, 65 M.J. 69, 76
(C.A.A.F. 2007) (quoting Strickland, 466 U.S. at 689). “We also are constrained by
the principle that strategic choices made by trial defense counsel are ‘virtually
unchallengeable’ after thorough investigation of the law and the facts relevant to the
plausible options.” United States v. Akbar, 74 M.J. 364, 371 (C.A.A.F. 2015)
(quoting Strickland, 466 U.S. at 690-91).

       After reviewing the entire record of trial and the sworn affidavits submitted
by appellant’s trial defense counsel, we find counsel’s conduct in pursuing a trial
strategy consistent with appellant’s sworn statement to CID and the physical
evidence squarely fits within the wide range of reasonable professional assistance.

       Appellant’s trial defense counsel’s sworn affidavits outline their trial strategy
in explicit detail. As stated by counsel, the defense theory was to establish the
“sexual intercourse only occurred during the day in the hotel room and not at night


(. . . continued)
members on implied bias grounds unworthy of discussion and meritless, we likewise
find the defense counsel were not ineffective for failing to challenge such members.
As to Mil. R. Evid. 404(b), as stated in the government’s appellate brief,
“[a]ppellant’s departure from AIT was only mentioned a few times early in the trial
[as contextual information] and government counsel never followed up with
questions exploring why appellant failed or otherwise tying the failure to appellant’s
character or credibility.” We are unconvinced a limited reference to “failing out of
AIT,” without any information as to the reason or a negative linkage to appellant’s
character or credibility, is Mil. R. Evid. 404(b) evidence. Even if such reference is
objectionable under Mil R. Evid. 404(b), appellant fails to show his counsel were
ineffective for failing to object to such limited evidence or, if ineffective, that a
“reasonable probability” the result of the proceeding would have been different
because of such error.




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NAVARRO–ARMY 20160673

after drinking; consistent with the statement provided by [appellant] to CID.” The
defense “theory was not centered on misperception or lack of memory of PFC TMK”
and their “strategy was to show that PFC TMK lied regarding the consensual sexual
encounter, not that she innocently misperceived events due to taking medications
alone or mixed with alcohol.” Any direct testimony from an expert witness or cross-
examination of PFC TMK or the SANE regarding prescription medication usage or
an amnesic period in the evening was not probative to support defense’s theory that
PFC TMK deliberately lied regarding her consensual engagement in sexual
intercourse with appellant in the afternoon.

       Beyond solely linking the defense theory to appellant’s CID statement,
defense counsel adeptly reasoned a “faulty memory” defense could not aid in
undermining the government’s highly probative physical evidence that tears existed
in PFC TMK’s anus and that appellant’s DNA was found on PFC TMK’s rectal
swabs. Likewise, presenting a “faulty memory” defense was undermined because
PFC TMK’s drug-screening test was negative for prescription drug usage. Defense
counsel believed the stronger strategy was to demonstrate PFC TMK was lying and
“it was inconsistent to argue to the panel that PFC TMK was deliberately lying and
that she also did not remember events from that evening correctly.”

       As to the alleged failure to present witnesses to testify to appellant’s character
for truthfulness and peacefulness, neither appellant nor any alleged witness provided
a sworn affidavit or unsworn statement regarding their potential testimony. All that
exists to support appellant’s claim is a mere appellate exhibit – a defense generated
pretrial witness list. Appellant does not allege that his counsel failed to investigate
or interview witnesses but instead proffers they committed tactical error by not
calling certain witnesses. Even if such favorable witnesses existed, appellant
admitted to engaging in sexual intercourse with PFC TMK, but he denied having
anal intercourse with PFC TMK, despite tears in her anus and his DNA on her rectal
swabs. This physical evidence directly contradicted his truthful and peaceful
character. In light of this probative physical evidence against appellant’s character,
the defense faced the danger of opening the door to the government presenting
unfavorable character evidence against appellant in rebuttal. The more reasonable
tactical strategy pursued by defense counsel was to challenge PFC TMK’s character
for truthfulness by presenting testimony from PFC TMK’s AIT roommate Specialist
GC that PFC TMK was not a truthful person.

       While finding appellant’s trial defense counsel’s performance did not fall
below an objective standard of reasonableness, several reasons convince us that even
if counsel’s performance was deficient, it did not give rise to a “reasonable
probability” the result of the proceeding would have been different. “[W]e need not
determine whether any of the alleged errors [in counsel’s performance] establish[]
constitutional deficiencies under the first prong of Strickland . . . [if] any such errors
would not have been prejudicial under the high hurdle established by the second



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NAVARRO–ARMY 20160673

prong of Strickland.” Tippit, 65 M.J. at 76 (quoting United States v. Saintaude, 61
M.J. 175, 183 (C.A.A.F. 2005)) (alterations in original). Specifically, we find there
was no reasonable probability that, absent the alleged error(s), the result would have
been different. See United States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012).

                                   CONCLUSION

      On consideration of the entire record, we hold the finding of guilty and the
sentence as approved by the convening authority correct in law and fact.
Accordingly, the finding of guilty and the sentence are AFFIRMED.

      Senior Judge BURTON and Judge HAGLER concur.

                                          FOR THE
                                          FOR THE COURT:
                                                  COURT:




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




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