UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                              MULLIGAN, FEBBO, AND WOLFE
                                 Appellate Military Judges

                              UNITED STATES, Appellee
                                           v.
                               Captain GLEN R. URIK
                             United States Army, Appellant

                                      ARMY 20140844

                   Headquarters, 21st Theater Sustainment Command
                            Joshua S. Shuey, Military Judge
                   Colonel Paula I. Schasberger, Staff Judge Advocate


For Appellant: Major Andres Vazquez, Jr., JA; Mr. Gregory M. Gagne, Esquire (on
brief).

For Appellee: Lieutenant Colonel A.G. Courie III, JA; Major Cormac M. Smith, JA;
Captain John Gardella, JA (on brief).


                                       7 March 2017
                                ---------------------------------
                                SUMMARY DISPOSITION
                                ---------------------------------

Per Curiam:

      Acquitted of sexual assault, Captain (CPT) Glen Urik was convicted of
abusive sexual contact. 1 The military judge, sitting as general court-martial,
sentenced appellant to a dismissal, confinement for fifteen months, and a reprimand.

                                    BACKGROUND

       Appellant was accused of sexual assault by his on-again, off-again girlfriend
Ms. LL. Ms. LL, was a civilian living in Germany. She was the government’s only
witness, and testified that after she ended the relationship, appellant grabbed her
breast, fondled her genitalia, and had sex with her despite her repeated pleas for him
to stop. The military judge found that the government had met its burden of proof
only with regard to the touching of Ms. LL’s genitalia, a non-penetrative act.


1
    Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920 (2012).
URIK—ARMY 20140844

                                     DISCUSSION

       Appellant, both personally 2 and through counsel, raises several claims of
error. While we briefly comment below on some of these allegations of error, we
find in whole appellant’s claims lack merit.

                            A. Factual and Legal Sufficiency

       Appellant asks this court to find the evidence factually and legally
insufficient. The government’s evidence was not overwhelming and turned entirely
on the credibility of Ms. LL. Appellant asks us to discredit the testimony of Ms. LL.
Giving no deference to the findings of the trial court, but recognizing that the court-
martial had the ability to see and hear the evidence, we find the evidence to be
factually sufficient. See United States v. Davis, 75 M.J. 537, 546 (Army Ct. Crim.
App. 2015) (“[T]he degree to which we ‘recognize’ or give deference to the trial
court’s ability to see and hear the witnesses will often depend on the degree to which
the credibility of the witness is at issue.”). As we find the evidence factually
sufficient, we likewise find it legally sufficient.

                                 B. Inconsistent verdict

        We considered, but rejected, appellant’s claim that the verdict is fatally
inconsistent. The government alleged that appellant unlawfully touched Mrs. LL’s
breast, then her genitalia, and then finally engaged in sexual intercourse without her
consent. The military judge acquitted appellant of the first and last instances of
conduct, but convicted appellant of abusive sexual contact for touching Ms. LL’s
vulva. 3 Appellant claims that the verdict “cannot be reconciled with the evidence
presented in the case.” We note that, at trial, appellant’s counsel during sentencing
specifically articulated a theory of the evidence that would make the verdicts
consistent. As counsel’s argument is but only one possible “rational basis which
might have led the judge to his verdict,” we do not order any relief. United States v.
Perry, 22 M.J. 669, 671 (A.C.M.R. 1986); see generally, United States v. Rosario,
__ M.J. __, 2017 CAAF LEXIS 125 (C.A.A.F. 22 Feb. 2017).




2
    Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
3
  The touching of the breast and vulva were charged in a single specification. The
military judge found appellant guilty of touching Ms. LL’s vulva but excepted from
the specification the touching of her breast.

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URIK—ARMY 20140844

                           C. Unlawful Command Influence

       Appellant alleges that his court-martial was tainted by the specter of unlawful
command influence (UCI) based on comments by the President, senior leaders in the
Department of the Army, and senior Army officers in Germany. Appellant’s claim
of UCI was generally limited to the accusatory (i.e. not adjudicative) stage of the
court-martial. The military judge issued a twenty-page ruling addressing appellant’s
claims in depth. For the reasons stated by the military judge, we determine no relief
is warranted. 4

               D. Delay in transmitting the preliminary hearing report

        The convening authority referred this case to trial shortly after the Article 32
preliminary hearing was completed and before the preliminary hearing report was
served on appellant. In short, appellant claimed at trial (and again on appeal) that he
was deprived of the opportunity to lodge objections to the report. For relief,
appellant requested that the maximum punishment be limited to that which a special
court-martial could adjudge for an officer. However, as Rule for Court-Martial
[hereinafter R.C.M.] 405(j)(4) makes clear, the convening authority is not required
to delay referral in order to provide an accused with an opportunity to object to the
report.

      We agree that appellant was deprived of the opportunity to submit to the
convening authority objections to the preliminary hearing report. As a result, the
“waiver” provisions of R.C.M. 405(k) were inapplicable. In other words, appellant
was entitled to bring claims of error in the report to the attention of the military
judge and request relief without fear that his failure to first raise the matter to the
convening authority had forfeited the matter. However, and critically, appellant did



4
  We note that appellant asks us to apply our superior court’s decision in United
States v. Biagase, 50 M.J. 143 (C.A.A.F. 1999), to the facts of this case. We are
unable to find any case in which the Court of Appeals for the Armed Force (CAAF)
has applied Biagase to an accusatory instance of UCI when there is no allegation
that the UCI tainted (or appeared to taint) the trial itself (i.e., the adjudicative
stage). See generally, United States v. Weasler, 43 M.J. 15, 17-18 (C.A.A.F. 1995)
(“[T]his Court has sought to draw a distinction between the accusatorial process and
the adjudicative stage, that is, the difference between preferral, forwarding, referral,
and the adjudicative process, including interference with witnesses, judges,
members, and counsel.”). The CAAF’s different treatment of waiver of UCI in
accusatory and adjudicative stages would indicate that Biagase should be limited to
the latter. Id. However, we need not decide this issue as we find appellant is not
entitled to relief under any standard.

                                           3
URIK—ARMY 20140844

not (and does not) articulate any substantive error in the conduct of the preliminary
hearing that would require a correction. Therefore, no relief is appropriate.
Finally, on appeal (as compared to at trial), there must be prejudice during the trial
as a result of any uncorrected error that occurred in the Article 32 hearing. United
States v. Davis, 64 M.J. 445, 449 (C.A.A.F. 2007). Although important, a
preliminary hearing is “not part of the court-martial.” Id.

    E. Failure of trial counsel to verify whether the victim had mental health records

        At trial and on appeal, appellant claims the trial counsel did not adequately
verify whether the victim had mental health records. 5 At trial, Ms. LL testified that
she had no mental health records. Notwithstanding this testimony, appellant claims
error in that the trial counsel did not do enough to verify that Ms. LL had no mental
health records. At trial and on appeal appellant misunderstands the discovery
obligations of the government counsel. See generally, US v. Shorts, __ M.J. __,
2017 CCA LEXIS 38 (Army Ct. Crim. App. 24 Jan. 2017). In any event, since there
is still no evidence before this court that: a) such records exist; b) if they exist they
contain material information favorable to the defense; and c) there is an applicable
exception to the privilege under Military Rule of Evidence [hereinafter Mil. R.
Evid.] 513, appellant is not entitled to relief. UCMJ art. 59(a).

                       F. Failure to make Section III disclosures

       At trial, and personally on appeal, appellant claims the trial counsel failed to
provide him notice of the statements that the government intended to introduce at
trial. Each statement had been provided to the defense prior to the Article 32,
UCMJ, hearing. Appellant complained he had not been specifically provided
“Section III” notice of the statements. 6 Appellant misinterprets the trial counsel’s
responsibilities.

       A trial counsel complies with the 300-series of the Rules of Evidence when he
or she turns over all statements by an accused. While it is a commendable Army
practice to separately turn over a list of statements that the trial counsel intends to
introduce at trial, this is not a strict requirement. See Mil. R. Evid. 304(d)(1)


5
 At trial, appellant requested in discovery “any and all mental health records and/or
counseling records of the complaining witness.” There was no proffer that such
records existed, or explanation as to where they might be located. Ms. LL was a
civilian (not a dependent) living in Germany.
6
 “Section III” comprises the 300 series of rules within the Military Rules of
Evidence. The rules require the trial counsel to provide certain disclosures to the
defense, which is commonly referred to as a “Section III” disclosure.

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URIK—ARMY 20140844

(“Disclosure. Prior to arraignment, the prosecution shall disclose to the defense the
contents of all statements, oral or written, made by the accused that are relevant to
the case, known to the trial counsel, and within the control of the armed forces.”);
see also Mil. R. Evid. 311(d)(1)(“Disclosure. Prior to arraignment, the prosecution
shall disclose to the defense all evidence seized from the person or property of the
accused, or believed to be owned by the accused, that it intends to offer into
evidence against the accused at trial.”).

       Finally, we are unable to find any unfair prejudice to appellant from the
introduction of the statements when he was provided copies of the statements prior
to referral.

                                   CONCLUSION

      The findings of guilty and sentence are AFFIRMED.

                                        FOR THE COURT:
                                        FOR THE COURT:



                                        JOHN P. TAITT
                                        JOHN   P. TAITT
                                        Chief Deputy Clerk of Court
                                        Chief Deputy Clerk of Court




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