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

                           UNITED STATES, Appellee
                                        v.
                  Private First Class ROBERT C. DELMASTER
                          United States Army, Appellant

                                    ARMY 20150593

        Headquarters, 82d Airborne Division (Rear) (Provisional) (convened)
                     Headquarters, 82d Airborne Division (action)
                      Christopher T. Fredrickson, Military Judge
       Lieutenant Colonel Susan K. McConnell, Staff Judge Advocate (pretrial)
    Colonel Travis L. Rogers, Staff Judge Advocate (recommendation & addendum)

For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA;
Captain Matthew L. Jalandoni, JA (on brief); Colonel Mary J. Bradley, JA; Major
Julie L. Borchers, JA; Captain Zachary A. Szilagyi, JA (on reply brief).

For Appellee: Colonel Tania M. Martin, JA; Captain Allison Rowley, JA; Captain
Jonathan Reiner, JA; Major Michael E. Korte, JA (on brief).


                                    31 January 2018
                               ----------------------------------
                                MEMORANDUM OPINION
                               ----------------------------------

WOLFE, Judge:

      Private First Class Robert C. Delmaster appeals his convictions for raping and
committing lewd acts against his daughter, HD, as well as making a false official
statement. 1 HD was five years old at the time of trial. First, appellant claims that he

1
 An enlisted panel sitting as a general court-martial convicted appellant of two
specifications of rape of a child, two specifications of lewd acts with a child, and
one specification of making a false official statement in violation of Articles 120b
and 107, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920b, 107 (2012).
The convening authority approved the adjudged sentence to a dishonorable
discharge, confinement for three years, forfeiture of all pay and allowances, a
reprimand, and reduction to the grade of E-1.
DELMASTER—ARMY 20150593


was deprived of his constitutional right to confront his daughter when the military
judge allowed the child to testify remotely. We find the military judge did not abuse
his discretion when he allowed remote testimony. Second, appellant alleges that two
offenses are multiplicious in that he was convicted of both the greater and lesser
offense for the same conduct. The government essentially agrees, and we therefore
conditionally dismiss the lesser specification. Third, we discuss the manner in
which we can consider a victim’s post-trial submission to the convening authority
when determining the appropriateness of a sentence. 2

                             LAW AND DISCUSSION

                            A. Child Remote Testimony.

       Prior to trial on the merits the government filed a motion to allow HD to
testify remotely.

        Under Rule for Courts-Martial (R.C.M.) 914A and Military Rule of Evidence
(Mil. R. Evid.) 611(d) a military judge “must” allow a child victim of sexual abuse
to testify outside the presence of the accused when the military judge determines
that A) it is necessary to protect the welfare of the child witness; B) that the child
witness would be traumatized by the presence of the defendant; and C) the emotional
distress that the child would suffer if testifying in front of the accused would be
more than de minimis. The trauma to the child must be attributable to the presence
of the defendant and not be from the court-martial process generally.

        To lay the factual foundation for its motion for remote testimony the
government called four witnesses. One witness had served as HD’s foster mother for
over eighteen months. One witness was HD’s assigned social worker. The third
witness served as HD’s therapist. Finally, the government called an expert witness
to testify on clinical and forensic psychology.




2
  We considered, but do not discuss, appellant’s allegation that the military judge
prejudicially erred when he refused to allow the defense to voir dire the panel during
sentencing. Nor do we address at length appellant’s allegation that the tardy post-
trial processing of his case warrants relief. Although the government’s processing
of the record well-exceeded the timeframe established by United States v. Moreno,
63 M.J. 129, 142 (C.A.A.F. 2006), we find no due process violation. Given
appellant’s relatively lenient sentence for his crimes, we determine the sentence
adjudged should be approved, notwithstanding the unreasonable delay. Finally, we
also considered appellant’s substantive and well-reasoned United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), submission. It does not warrant relief.




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DELMASTER—ARMY 20150593


      The witnesses described a young intelligent girl who was coping with a
multitude of problems. In addition to the charged allegations, HD had witnessed
domestic violence in the house and had been placed in foster care. HD had been
diagnosed with post-traumatic stress disorder.

       In their briefs to this court both parties point to parts of the record that
support their position. Appellant focuses on equivocal testimony on whether the
trauma from HD testifying is from being in the presence of her father or just from
testifying generally. Appellant also contests whether the harm to HD from testifying
would be more than de minimis. Appellant points to evidence that indicates that HD
would not be traumatized by testifying such as HD’s testimony that she would like
to see her father again and give him a hug. The government points to parts of the
record where the witnesses describe HD being scared of her father, having bad
dreams about her father, and having a generalized fear of people in uniforms.

      The military judge made several findings of fact, to include that HD was
currently prohibited from seeing either parent. He concluded his ruling as follows:

                     After considering all the evidence. . . this [c]ourt
             concludes that Miss H.D. will be traumatized, not by the
             courtroom generally, but by the presence of the defendant.
             Miss H.D. has not stated that she is scared to talk about
             the allegations; rather, she has stated that she is scared of
             seeing her father in particular and has had bad dreams
             about her father. She will be traumatized by being in the
             presence of her father for the first time without being able
             to talk to him. Furthermore, she will be traumatized [by]
             having to discuss the alleged abuse in his presence, not
             knowing how he feels about her. Although it is probably
             not unique for child victims to see their victimizers for the
             first time in court, Miss H.D. has had to deal with some
             unique circumstances. She has effectively lost all contact
             with both her father and mother, she has no other family
             support, and she has fearful reminders of her father at
             night (through dreams) and during the day (with contact
             with those in the military).

                    Considering the fact that Miss H.D. already suffers
             significant distress worrying about seeing her father, this
             [c]ourt concludes that the emotional distress suffered by
             the child witness in the presence of the defendant is more
             than de minim[i]s. Miss H.D. suffers from numerous
             significant symptoms of trauma that are exacerbated as the
             trial approaches, even though she has access to her foster


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DELMASTER—ARMY 20150593


             mother and therapist. Such emotional distress is already
             more than de minim[i]s. This [c]ourt concludes that such
             distress is likely to worsen if she has to testify in the
             presence of the accused.

      The military judge “conclude[d] that allowing remote live testimony is
necessary to protect the welfare of this particular child witness.” This factual
finding, combined with his findings that testifying in front of appellant would cause
more than de minimis trauma to HD were supported in the record.

       A military judge’s finding of necessity is a question of fact that will not be
reversed on appeal unless such finding is “clearly erroneous or unsupported by the
record.” United States v. McCollum, 58 M.J. 323, 332 (C.A.A.F. 2003) (quoting
United States v. Longstreath, 45 M.J. 366, 373 (C.A.A.F. 1996)). “To be clearly
erroneous, a decision must strike the court as more than just maybe or probably
wrong, it must strike the court as wrong with the force of a five-week-old,
unrefrigerated dead fish.” United States v. Hoffman, 76 M.J. 758, 763 (Army Ct.
Crim. App. 2017) (quoting Papio Keno Club, Inc. v. City of Papillion (In re Papio
Keno Club, Inc.), 262 F.3d 725, 726 (8th Cir. 2001)). 3

       Although appellant points this court to parts of the record that would have
supported a different conclusion, the military judge’s decision was within his
discretion.

                                   B. Multiplicity.

      Among other sexual offenses, appellant was convicted of rape of a child for
penetrating HD’s mouth with his tongue. 4 Appellant was also convicted of
committing a lewd act with a child for kissing HD. It is undisputed on appeal that
both offenses targeted the same act.




3
 As we do not find error, we do not address whether appellant was prejudiced by the
error. However, we note that evidence against appellant included his own
substantive admissions. We further note that HD did not provide direct testimony
about every offense of which appellant was convicted.
4
 Although not yet effective, we note that Congress has recently amended the
definition of “sexual act” to exclude kissing offenses. National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, § 5430, 130 Stat.
2000, 2949 (2016).




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DELMASTER—ARMY 20150593


       Appellant alleges that the two offenses are multiplicious. The government
concedes they are multiplicious and also concedes that – as there was no objection –
the error amounts to plain error.

       We will linger neither on the appropriate standard of review nor on whether
the charges are multiplicious or merely unreasonably multiplied. We are convinced
that given the government concession this is an appropriate instance for us to
exercise our Article 66(c), UCMJ, authority to “notice” the error (regardless of
whether it may have been waived or forfeited) and treat the error as preserved.
Accordingly, we will conditionally dismiss the lesser specification of lewd acts with
a child in our decretal paragraph.

C. Consideration of post-trial matters when determining sentence appropriateness.

       Through their respective counsel, both appellant and HD submitted matters
for the convening authority to consider when taking initial action. See R.C.M. 1105,
1105A.

        Both submissions contain assertions of fact which are not contained in the
record. Appellant, for example, asserts to the convening authority that he has been a
“model inmate” and has been qualified as a “Master Gardner Intern” while in
confinement. Counsel for HD asserted that “every day she still adjusts to her new
‘life’” and that she “cries frequently, becomes easily agitated, and will act out in
tantrums.” HD’s counsel further asserted that HD now goes to therapy twice a week
and she “suffers from nightmares.” HD’s counsel asked for the findings and
sentence to be approved.

       Neither submission was sworn, subject to the rules of evidence, or were
subject to adversarial testing in court. Neither submission was authenticated as
being what it claimed to be. Indeed, as the R.C.M. 1105 matters were submitted
after authentication, the military judge likely could not (even if asked) authenticate
that such matters “accurately report[] the proceedings.” R.C.M. 1104(a)(1). The
military judge did not “preside” over a proceeding in which these matters were
considered. R.C.M. 1104(a)(2).

       Recently in United States v. Tovarchavez, we addressed whether we could
consider an email included in R.C.M. 1105 matters in evaluating an alleged legal
error at trial:

                    The problem with considering unsworn
             unauthenticated matter that was never subjected to
             adversarial testing should be obvious. Both parties (and
             recently crime victims) have broad authority to
             unilaterally attach matters to the record of trial (the



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DELMASTER—ARMY 20150593


             accused in his submission of R.C.M. 1105 matters and the
             government in assembling the record and determining
             which allied papers to include). See R.C.M. 1103(b)(1).
             The Military Rules of Evidence do not—in the main—
             apply to submission of matters at Article 32, UCMJ,
             hearings or in post-trial. See Military Rule of Evidence
             1101.

ARMY 20150250, 2017 CCA LEXIS 602, at *6 (Army Ct. Crim. App. 7 Sept. 2017)
(mem. op.).

       However, Tovarchavez involved a case in which we were being asked to
consider unsworn unauthenticated matter contained in a post-trial submission to
determine whether there was constitutional error during the trial itself. By contrast,
our superior court has stated for purposes of determining whether a sentence is
appropriate this court can consider post-trial submissions. United States v. Healy,
26 M.J. 394, 396 (C.M.A. 1988) (“information submitted to the convening authority
for clemency purposes will in some instances be part of the ‘record’ which is
considered by the Court of Military Review in determining sentence
appropriateness.”).

       In any event, we have no reason to suspect that the documents marked as the
appellant’s and HD’s post-trial submissions are anything other than what they appear
to be, nor do we suspect in this case that the content of the submissions would have
materially changed had they been subject to the rigors of adversarial testing at trial.
But perhaps the practice of a court considering unsworn, unauthenticated, and
untested evidence when making the substantive determination about an appellant’s
freedom was an acceptable practice only because, until recently, crime victims did
not have the right to submit matters adverse to the accused in post-trial.

      Accordingly, in determining the appropriateness of appellant’s sentence we
consider the post-trial submissions. We determine the sentence to be appropriate.

                                   CONCLUSION

       Specification 4 of Charge I is conditionally SET ASIDE and conditionally
DISMISSED. See United States v. Britton, 47 M.J. 195, 203 (C.A.A.F. 1997) (J.
Effron concurring); United States v. Hines, 75 M.J. 734, 738 n.4 (Army. Ct. Crim.
App. 2016); United States v. Woods, 21 M.J. 856, 876 (A.C.M.R. 1986). Our
dismissal is conditional on Specification 2 of Charge I surviving the “final
judgment” as to the legality of the proceedings. See Article 71(c)(1), UCMJ
(defining final judgment as to the legality of the proceedings). The remaining
findings of guilty are AFFIRMED.




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DELMASTER—ARMY 20150593


       We are able to reassess the sentence on the basis of the errors noted and do so
after conducting a thorough analysis of the totality of the circumstances presented
by appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013), and
United States v. Sales, 22 M.J. 305 (C.M.A. 1986).

       In evaluating the Winckelmann factors, we first note that our action in this
case does not significantly alter the penalty landscape. 5 The gravamen of the
criminal conduct within the original offenses remains substantially the same, and the
specification conditionally dismissed by our decision today involves conduct
encompassed in another charge. In other words, the panel sentenced appellant for
essentially the same conduct encompassed in the findings of guilty we have
affirmed. The remaining offenses capture the gravamen, and the seriousness, of
appellant’s actions. Finally, we have the familiarity and experience with the
remaining offenses and can reliably determine what sentence would have been
imposed at trial. We are confident the panel would have returned a sentence to a
dishonorable discharge, confinement for three years, forfeiture of all pay and
allowances, a reprimand, and reduction to the grade of E-1, without the specification
we today conditionally dismiss.

     Reassessing the sentence based on the noted error and the entire record, we
AFFIRM the sentence as adjudged.

      Senior Judge MULLIGAN and Judge FEBBO concur.

                                        FOR
                                         FORTHE
                                             THECOURT:
                                                COURT:




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




5
 At trial, the military judge merged Specifications 2 and 4 of Charge I for
sentencing. Consequently, our action in conditionally dismissing Specification 4 of
Charge I does not change the penalty landscape one whit.




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