           UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                         UNITED STATES

                                                     v.

                              Senior Airman TRAVIS W. PRICE
                                    United States Air Force

                                          ACM 38045 (rem)

                                             22 April 2014

          Sentence adjudged 20 July 2011 by GCM convened at B uckley Air Force
          Base, Colorado. Military Judge: Jeffrey A. Ferguson.

          Approved Sentence: Dishonorable discharge, confinement for 3 years, and
          reduction to E-1.

          Appellate Counsel for the appellant: Major Zaven T. Saroyan; Major
          Daniel E. Schoeni; and Stephen H. Carpenter, Jr., Esquire.

          Appellate Counsel for the United States: Colonel Don M. Christensen;
          Lieutenant Colonel C. Taylor. Smith; Major Tyson D. Kindness; and Gerald
          R. Bruce, Esquire.

                                                  Before

                               ROAN, HARNEY, and MITCHELL
                                  Appellate Military Judges

                    This opinion is subject to editorial correction before final release.



PER CURIAM:

        A general court-martial composed of officer members convicted the appellant,
contrary to his pleas, of aggravated sexual abuse of a child, aggravated sexual assault of a
child, indecent liberties with a child, and abusive sexual contact with a child, in violation
of Article 120, UCMJ, 10 U.S.C. § 920. The court sentenced him to a dishonorable
discharge, confinement for 3 years, and reduction to E-1. The convening authority
approved the adjudged sentence. The appellant assigns five errors: (1) Ineffective
assistance of counsel; (2) Denial of expert assistance; (3) Improper questioning by a
panel member; (4) Failure to sua sponte excuse a panel member; and (5) Sentence
appropriateness.
       We previously affirmed the findings and sentence in this case. United States v.
Price, ACM 38045 (A.F. Ct. Crim. App. 9 May 2013) (unpub. op.). On 1 August 2013,
upon our own motion, this Court vacated the previous decision for reconsideration before
a properly constituted panel and affirmed our prior decision. United States v. Price,
ACM 38045 (recon) (A.F. Ct. Crim. App. 1 August 2013) (unpub. op.). On
21 November 2013, the Court of Appeals for the Armed Forces granted the appellant’s
petition for review on the issue of whether this Court’s panel that reviewed the case was
properly constituted. United States v. Price, __ M.J. __, No. 14-0096/AF (Daily Journal
21 November 2013). In the same order, our superior court set aside our decision and
remanded the case for an additional review and consideration of the panel constitution
under Article 66(c), UCMJ, 10 U.S.C. § 866(c). Id.

       Our decision today reaffirms our earlier decision dated 1 August 2013.

                             Ineffective Assistance of Counsel

       The appellant argues his trial defense counsel were ineffective by failing to object
to alleged improper statements by trial counsel in opening statement and closing
argument on findings and sentence. Claims of ineffective assistance of counsel are
reviewed by applying the two-pronged test the Supreme Court set forth in Strickland v.
Washington, 466 U.S. 668, 687 (1984). See United States v. Tippit, 65 M.J. 69, 76
(C.A.A.F. 2007). Under Strickland, an appellant must demonstrate:

        (1) “a deficiency in counsel’s performance that is ‘so serious that counsel
       was not functioning as the counsel guaranteed the defendant by the Sixth
       Amendment’”; and (2) that the deficient performance prejudiced the
       defense through errors “so serious as to deprive the defendant of a fair trial,
       a trial whose result is reliable.”

Id. (quoting United States v. Moulton, 47 M.J. 227, 229 (C.A.A.F. 1997); Strickland,
466 U.S. at 687)) (internal quotation marks omitted).

       The deficiency prong requires an appellant show the performance of counsel fell
below an objective standard of reasonableness, according to the prevailing standards of
the profession. Strickland, 466 U.S. at 688. The prejudice prong requires a “reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. Evidentiary hearings are required if there is any
dispute regarding material facts in competing declarations submitted on appeal which
cannot be resolved by the record of trial and appellate filings. United States v. Ginn, 47
M.J. 236, 248 (C.A.A.F. 1997).




                                              2                               ACM 38045 (rem)
        Applying these standards, we find that any material conflict in the respective
declarations regarding this issue may be resolved by reference to the record and appellate
filings without the need for an evidentiary hearing. A responsive declaration by trial
defense counsel addresses the alleged deficiencies and provides sound tactical reasons for
the decisions now questioned by the appellant. As stated by trial defense counsel, the
comments complained of must be viewed in context. United States v. Lewis, 69 M.J. 379
(C.A.A.F. 2011). Applying the Strickland standard and viewing the comments in
context, we do not find ineffective assistance by counsel’s lack of objection to the cited
comments.

                                Denial of Expert Assistance

        The military judge denied the appellant’s request for an expert consultant in
forensic psychology on the basis that the appellant failed to show that the requested
expert assistance was necessary. We review such a ruling for an abuse of discretion – a
strict standard that requires more than a difference of opinion but a finding that the ruling
was “arbitrary, fanciful, clearly unreasonable, or clearly erroneous.” United States v.
Lloyd, 69 M.J. 95, 99 (C.A.A.F. 2010) (quotation marks and citations omitted). The
entitlement to expert assistance depends on a showing of (1) why the expert is necessary,
(2) what the expert will do, and (3) why counsel cannot accomplish the same tasks. Id.
(citing United States v. Gonzalez, 39 M.J. 459, 461 (C.M.A. 1994)). Concerning
necessity, the requestor has the burden to show more than a “mere possibility of
assistance” but a “reasonable probability the expert would assist the defense and that
denial of the expert would result in an unfair trial.” Id. (citing United States v.
Bresnahan, 62 M.J. 137, 143 (C.A.A.F. 2005)).

       Applying these standards to the ruling in this case, we find no abuse of discretion
in the denial of expert assistance. The generalized defense request for expert assistance
to “review case materials” and “assess what psychological issues exist regarding
memory, perception, and post-incident reporting and actions” could generically apply to
any number of cases and raises no more than the mere possibility of assistance in this
particular case. Likewise, vague statements that the expert would assist in “developing
our case theory, exploring possible defenses, and interviewing the complainant” fail to
show necessity. We find no abuse of discretion in the military judge’s determination that
the generalized statements offered to support the request fail to show the required
necessity.

                   Court Member Questioning and Sua Sponte Excusal

       After counsel completed their direct and cross examinations of the victim, a court
member proposed to ask if the alleged sexual assault was the victim’s first sexual
experience. After the military judge excused the members, the victim answered that it
was. Both counsel agreed that, given the answer, prior sexual behavior was not an issue


                                             3                                ACM 38045 (rem)
under Mil. R. Evid. 412. Trial defense counsel said that he “could maybe object to
relevance,” but trial counsel responded that the question was “certainly relevant” to
evaluating the victim’s description of the sexual encounter. The judge agreed with trial
counsel, recalled the members, and asked the question, to which the victim replied,
“Yes.” The appellant now argues that the military judge erred by asking the question and
permitting its answer without conducting a balancing test under Mil. R. Evid. 412.

       We review a military judge’s decision to admit evidence for an abuse of
discretion. See Lloyd, 69 M.J. 95. Although the military judge did not expressly conduct
a balancing test for admission of the testimony, we find no abuse of discretion. Like the
parties at trial, we fail to see how the absence of sexual behavior qualifies as a matter of
sexual behavior subject to the requirements of Mil. R. Evid. 412. The question and
answer were relevant, could have cut either way in evaluating the victim’s testimony, and
certainly were not unfairly prejudicial.

        Related to the complaint involving this question is the appellant’s claim that the
military judge should have sua sponte excused the member who asked it because the
question shows actual or implied bias. We review decisions on actual or implied bias
based on the totality of the circumstances. United States v. Nash, 71 M.J. 83 (C.A.A.F.
2012). In Nash, the appellant was charged with various acts of child sexual abuse.
During the defense case on the merits, a court member submitted a question that asked if
the witness thought “a pedophile can be rehabilitated.” The parties objected to the
question, and the defense challenged the member for cause on the basis that he had not
kept an open mind. The military judge denied the challenge. Our superior court found an
abuse of discretion in denying the challenge because “the plain language of [the] question
indicates a conclusion as to Appellee’s guilt” and that “he had not kept an open mind
until the close of the evidence.” Id. at 89.

        Unlike the court member’s question in Nash, the question here does not reveal any
presumption of guilt, and no one at trial raised any concern that the court member should
be excused for actual or implied bias. The victim had extensively testified concerning a
sexual experience with the appellant. The court member’s question naturally references
that testimony as a predicate in asking a fact-based question that could provide, as the
judge stated, “a benchmark” for evaluating the specifics of the testimony. Looking at the
totality of the circumstances, including other questions asked by the member, we find no
cause for the military judge to sua sponte intervene and excuse a member which neither
side challenged.

                                Sentence Appropriateness

       While conceding that his crimes are serious, the appellant argues that his sentence
is inappropriately severe. We review sentence appropriateness de novo. United
States v. Baier, 60 M.J. 382, 384-85 (C.A.A.F. 2005). We make such determinations in


                                             4                               ACM 38045 (rem)
light of the character of the offender, the nature and seriousness of his offenses, and the
entire record of trial. United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982); United
States v. Bare, 63 M.J. 707, 714 (A.F. Ct. Crim. App. 2006), aff’d, 65 M.J. 35 (C.A.A.F.
2007). Additionally, while we have a great deal of discretion in determining whether a
particular sentence is appropriate, we are not authorized to engage in exercises of
clemency. United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999); United
States v. Healy, 26 M.J. 394, 395-96 (C.M.A. 1988). Applying these standards to the
present case we do not find the approved sentence inappropriately severe for the
appellant’s sexual abuse of a 13-year-old girl.

                                       Conclusion

       The approved findings and the sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and
the sentence are

                                   AFFIRMED.



              FOR THE COURT


              STEVEN LUCAS
              Clerk of the Court




                                             5                              ACM 38045 (rem)
