           UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                              Airman Basic JANE M. NEUBAUER
                                   United States Air Force

                                              ACM S32308

                                             10 March 2016

         Sentence adjudged 11 March 2015 by SPCM convened at Keesler Air Force
         Base, Mississippi. Military Judge: Matthew S. Ward (sitting alone).

         Approved sentence: Bad-conduct discharge, confinement for 84 days, and
         forfeiture of $1,031.00 pay per month for 12 months.

         Appellate Counsel for Appellant: Major Jeffrey A. Davis.

         Appellate Counsel for the United States:                Lieutenant Colonel Roberto
         Ramirez and Gerald R. Bruce, Esquire.

                                                  Before

                                ALLRED, TELLER, and SANTORO
                                    Appellate Military Judges

                                     OPINION OF THE COURT

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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

SANTORO, Judge:

        A military judge sitting as a special court-martial convicted Appellant, consistent
with her pleas, of a total of 18 specifications (6 charges) under the Uniform Code of
Military Justice: driving on base after her driving privileges had been revoked following
a driving under the influence offense; wrongfully using “Spice”; making 10 false official
statements, all related to a false claim that she had been sexually assaulted; possession of
marijuana; use of marijuana on divers occasions (2 specifications); soliciting another
Airman to make a false statement to cover up her misconduct; breaking restriction; and
soliciting another Airman to aid in her breaking restriction, in violation of Articles 92,
107, 112a, and 134, UCMJ, 10 U.S.C. §§ 892, 907, 912a, 934. The military judge
sentenced Appellant to a bad-conduct discharge, confinement for 4 months, and forfeiture
of $1,031 pay per month for 12 months. Pursuant to a pretrial agreement, the convening
authority reduced the confinement to 84 days but otherwise approved the adjudged
sentence.

       On appeal, Appellant asserts that her plea of guilty to soliciting another Airman to
aid her in breaking restriction was improvident and that the trial counsel’s sentencing
argument was improper. We disagree and affirm.

                                       Background

       Appellant was assigned to Keesler Air Force Base, Mississippi, for technical
training. In April 2013, she agreed to work as a confidential informant for the Air Force
Office of Special Investigations (AFOSI). Her primary role was to collect information
regarding drug use and distribution by other Airmen.

        On 25 July 2013, following an unsuccessful law enforcement operation, AFOSI
told Appellant to “take the next week off.” As a trainee, Appellant had to be back in the
dormitory by midnight. On 26 July 2013, Appellant spent time with a permanent-party
(i.e., non-trainee) Airman, had consensual sexual intercourse with him, and remained in
his room until around 0130 the next morning. Meanwhile, Appellant’s unit realized that
she was missing and began efforts to locate her—which included multiple (unanswered)
calls to her cell phone while she was with the other Airman. Appellant eventually
answered one of her unit’s calls and falsely told the charge of quarters (CQ) that she was
in her dorm room.

       Her unit continued trying to contact her. Instead of returning directly to her dorm
room, Appellant went to the Biloxi Regional Medical Center. After she arrived at the
hospital her unit called again and she told the CQ that she was at the hospital. When the
CQ handed the telephone to a noncommissioned officer (NCO), Appellant told the NCO
that she was having a rape kit done. The NCO reported the alleged sexual assault to the
chain of command and to law enforcement.

      Appellant told medical personnel at the hospital that she had been raped the
evening before and asked to have a rape kit done. Hospital personnel notified civilian
law enforcement, who responded to the hospital.

       During the following days and weeks, as law enforcement continued to investigate
the fabricated violent sexual assault, Appellant made several false statements about what
had occurred, who her assailant was, and that she had been impregnated by her assailant.
She presented a falsified positive pregnancy test to support her claim of being
impregnated. She also asked the Airman with whom she had consensual intercourse to
lie about their activities that night.


                                             2                                  ACM S32308
       In addition, Appellant purchased and used marijuana and “Spice” on multiple
occasions in July, August, and September 2013. She drove on base after her driving
privileges had been revoked following her receipt of punishment under Article 15,
UCMJ, 10 U.S.C. § 815, for driving under the influence. Immediately after her
commander restricted her to base, Appellant broke restriction and unsuccessfully
attempted to get a fellow Airman to assist.

       Additional facts necessary to resolve the assignments of error are included below.

                                    Providence of Plea

        Appellant argues that her plea of guilty to soliciting another to aid in her breaking
restriction was improvident. We review a military judge’s acceptance of a guilty plea for
an abuse of discretion and questions of law arising therefrom de novo. United States v.
Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). To prevail on appeal, Appellant has the
burden to demonstrate “a substantial basis in law and fact for questioning the guilty
plea.” Id. (quoting United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)) (internal
quotation marks omitted). The “mere possibility” of a conflict between the accused’s
plea and statements or other evidence in the record is not a sufficient basis to overturn the
trial results. United States v. Garcia, 44 M.J. 496, 498 (C.A.A.F. 1996) (quoting Prater,
32 M.J. at 436) (internal quotation marks omitted). “The providence of a plea is based
not only on the accused’s understanding and recitation of the factual history of the crime,
but also on an understanding of how the law relates to those facts.” United States v.
Medina, 66 M.J. 21, 26 (C.A.A.F. 2008) (citing United States v. Care, 40 C.M.R. 247,
250–51 (C.M.A. 1969)). “[W]e examine the totality of the circumstances of the
providence inquiry, including the stipulation of fact, as well as the relationship between
the accused’s responses to leading questions and the full range of the accused’s responses
during the plea inquiry.” United States v. Nance, 67 M.J. 362, 366 (C.A.A.F. 2009).

        The specification to which Appellant pled guilty alleged that she wrongfully
solicited Airman Basic (AB) LL “to aid in the restriction breaking of [Appellant], to wit:
[Appellant], while restricted to the limits of Keesler Air Force Base, Mississippi, asked
[AB LL] to sponsor [Appellant] onto Keesler Air Force Base, Mississippi,” which was
prejudicial to good order and discipline.

       Appellant told the military judge, during the plea inquiry as well as in her 19-page
stipulation of fact, that immediately after her commander restricted her to base, Appellant
sent a text message to AB LL asking AB LL to meet Appellant at the gate, drive her
through the gate, and scan AB LL’s Common Access Card (CAC) to get Appellant back
onto the base without the gate guards becoming aware of her true identity. Appellant also
told AB LL that she “didn’t care about base restrictions,” or words to that effect.




                                              3                                  ACM S32308
       Appellant further stipulated that when she asked AB LL to let her use her CAC,
she specifically intended that AB LL be a principal1 in the commission of the offense of
breaking restriction, and also that she “wanted AB [LL] to help her get off base and back
on undetected so that she could get away with breaking restriction.” She also told the
military judge that her plan to break restriction specifically included being able to return
to base undetected.

        Before accepting Appellant’s guilty plea to this offense, the military judge sua
sponte questioned whether AB LL could have legally aided in Appellant’s breaking
restriction if Appellant had already left the base (and thus broken restriction) before
AB LL would have driven Appellant back onto base. In response, trial defense counsel
noted that the solicitation occurred before the actual breaking of the restriction and that
“if someone aids and abets during the AWOL, even though the AWOL was already
committed, that still makes someone a principal in the act.”

       The military judge discussed this issue with Appellant. He summarized the
positions of both trial and defense counsel and specifically asked whether Appellant
agreed that her conduct met the legal definitions he provided. She replied in the
affirmative. The military judge asked about the importance of getting back onto base in
relation to Appellant’s plan to break restriction:

                   [Military Judge:] [Y]ou and Airman [LL] had the specific
                   intent that she would assist you in breaking the restriction.
                   The government’s theory is that she did so and that intent was
                   in that because the breaking restriction included all of the
                   elements of getting off base and getting back on base
                   undetected. In other words, you weren’t trying to get caught.
                   [Your] intent was to break restriction and not get caught.”

                   [Appellant:] Yes, Your Honor.

                   [Military Judge:] Is that a fair statement?

                   [Appellant:] Yes, Your Honor.

                   [Military Judge:] All right. So do you have any questions
                   about any of that?

                   [Appellant:] No, Your Honor.



1
    Article 77, UCMJ, 10 U.S.C. § 877.


                                                   4                                ACM S32308
       Appellant now claims that the military judge abused his discretion in accepting the
plea of guilty to this offense because the offense of breaking restriction occurred when
Appellant departed the installation. She asserts that the proper characterization of her
conduct would be an attempt to cover up her misconduct.

       We see no substantial basis for questioning the plea. A fair reading of Appellant’s
stipulation of fact and statements to the military judge suggests that getting back onto
base undetected was an integral part of her plan to break restriction. The military judge
correctly instructed Appellant on the law applicable to principal liability under Article 77,
UCMJ, 10 U.S.C. § 877. Appellant was present when the trial counsel, trial defense
counsel, and military judge discussed the relevant law and how it applied to the facts of
her case. On more than one occasion, she indicated her understanding of the legal
principles involved and stipulated that her conduct met those principals. Moreover, we
are aware of no prior cases holding that the offense of breaking restriction cannot be a
continuing offense. The military judge did not abuse his discretion in accepting
Appellant’s guilty plea.

                                   Sentencing Argument

       Appellant argues that the trial counsel’s sentencing argument contained several
references to the effect Appellant’s false claims of rape would have on true rape victims
and, with no direct evidence of that in the record, was therefore improper. She did not
object to the argument at trial.

       Whether argument is improper is a question of law we review de novo. United
States v. Marsh, 70 M.J. 101, 104 (C.A.A.F. 2011) (citing United States v. Pope, 69 M.J.
328, 334 (C.A.A.F. 2011)). Because trial defense counsel failed to object to the
argument, we review for plain error. Id. To establish plain error, Appellant must prove:
“(1) there was an error; (2) it was plain or obvious; and (3) the error materially prejudiced
a substantial right.” Id. (quoting United States v. Erickson, 65 M.J. 221, 223 (C.A.A.F.
2007)) (internal quotation marks omitted).

       “[T]rial counsel is at liberty to strike hard, but not foul, blows.” United States v.
Schroder, 65 M.J. 49, 58 (C.A.A.F. 2007) (quoting United States v. Baer, 53 M.J. 235,
237 (C.A.A.F. 2000)). Trial counsel is limited to arguing the evidence in the record and
the inferences fairly derived from that evidence. See United States v. Paxton, 64 M.J.
484, 488 (C.A.A.F. 2007); United States v. White, 36 M.J. 306, 308 (C.M.A. 1993).
Whether or not the comments are fair must be resolved when viewed within the entire
court-martial. United States v. Gilley, 56 M.J. 113, 121 (C.A.A.F. 2001). It is
appropriate for counsel to argue the evidence, as well as all reasonable inferences fairly
derived from such evidence. United States v. Nelson, 1 M.J. 235, 239 (C.M.A. 1975).




                                              5                                  ACM S32308
       Appellant identified five separate passages in trial counsel’s argument that she
claims “focus on the impact Appellant’s conduct had on real rape victims.” In all but
one, however, trial counsel’s argument was focused on Appellant’s conduct, its impact on
the Air Force, and Appellant’s view of and consideration for victims of sexual assault.
We find nothing improper in these arguments.

           In the fifth, trial counsel argued:

                   Your Honor, the accused’s lies, her drug use, and the extent
                   of her manipulation are extremely serious in this case. She
                   made a false report of sexual assault. What are all the airmen
                   who have heard her claims, her false statements, what are
                   they going to think the next time they receive a report of
                   sexual assault? How is the next victim of sexual assault
                   going to feel coming forward hoping she’ll be believed. This
                   accused didn’t think about any of that. Victims need the
                   support and the services that the Air Force so rightfully
                   provides them. This accused exploited all of those things.
                   This accused’s conduct has been willful, it’s been repeated,
                   and no rehabilitative effort has worked.

       This passage contains two references to other Airmen. The first referred to those
who have heard of Appellant’s false claims of rape. The standard sentencing instructions
contained in the Military Judges’ Benchbook 2 tell court-martial members that, when
determining a sentence, they may consider the deterrent effect of a sentence upon those
who know of an accused’s crimes. The second was trial counsel’s argument that
Appellant did not consider how her false claims of rape might affect an actual sexual
assault victim’s decision to report her assault. When viewed in context, this argument
was focused on Appellant’s thoughts and behavior and not directly upon the actions of
future sexual assault victims.

        As we conclude that none of the cited arguments were error, we find no material
prejudice to any substantial right of Appellant. Moreover, assuming arguendo that the
reference to future sexual assault victims argued facts not in evidence and was not an
inference fairly derived from the record, the sentencing authority was a military judge
sitting alone. “Military judges are presumed to know the law and to follow it absent clear
evidence to the contrary.” Erickson, 65 M.J. at 225. Our superior court has also
recognized, “As part of this presumption we further presume that the military judge is
able to distinguish between proper and improper sentencing arguments.” Id.



2
    Department of the Army Pamphlet 27–9, Military Judges’ Benchbook, ¶ 2-5-21 (10 September 2014).


                                                         6                                        ACM S32308
                                     Conclusion

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



             FOR THE COURT



             LEAH M. CALAHAN
             Clerk of the Court




                                           7                               ACM S32308
