UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                          TOZZI, CAMPANELLA, and CELTNIEKS
                                 Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                           Sergeant MARCUS C. DOSHIER
                            United States Army, Appellant

                                     ARMY 20120691

 Headquarters, United States Army Aviation Center of Excellence and Fort Rucker
                       Stephen E. Castlen, Military Judge
              Major Angela D. Tucker, Acting Staff Judge Advocate


For Appellant: Ken B. Martin, Esquire (argued); Ken B. Martin, Esquire; Captain
Aaron R. Inkenbrandt, JA (on brief and reply brief)

For Appellee: Captain Anne C. Hsieh, JA (argued); Colonel John P. Carrell, JA;
Lieutenant Colonel James L. Varley, JA; Major Steven J. Collins, JA; Captain Carl
L. Moore, JA (on brief).


                                     24 February 2015
                                 ---------------------------------
                                 MEMORANDUM OPINION
                                 ---------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

TOZZI, Senior Judge:

       A panel of officer and enlisted members sitting as a general court -martial
convicted appellant, contrary to his pleas, of one specification of attempted sodomy
with a child, five specifications of rape of a child under the age of twelve years, one
specification of aggravated sexual contact with a child, one specification of indecent
liberty with a child, four specifications of sodomy with a child, and one
specification of possession of child pornography, in violation of Articles 80, 120,
125, and 134, Uniform Code of Military Justice, 10 U.S.C. 880, 920, 925, 934 (2006
& Supp. III 2010). The panel sentenced appellant to a dishonorable discharge,
confinement for life with eligibility for parole, forfeiture of all pay and allowances,
and reduction to the grade of E-1. The convening authority approved the sentence as
adjudged, except he did not approve the adjudged forfeitures. The convening
DOSHIER—ARMY 20120691

authority also deferred forfeitures until action and waived automatic forfeitures for a
period of six months following action.

       This case is before this court for review pursuant to Article 66, UCMJ. Three
of appellant’s assignments of error warrant discussion, and two merit relief. First,
we correct a Walters issue of ambiguous findings where the government charged
appellant “on divers occasions,” presented evidence of crimes occurring on more
than one occasion, and the panel found appellant not guilty of the “on divers
occasions” language without specifying which instance formed the factual basis of
the conviction. See United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003). Second,
we address the sufficiency and validity of the general verdict for appellant’s
conviction for possessing child pornography. Third, we address appellant’s
allegation of ineffective assistance of counsel and find that appellant has not
established prejudice in his case. Lastly, we determine whether we can reassess
appellant’s sentence.

                                  BACKGROUND

      Appellant stands convicted of multiple instances of sexually abusing his
biological daughter, CD, and his niece through marriage, MB. CD testified that the
abuse began when she was in kindergarten to first or second grade, while appellant
was stationed in Germany. Appellant raped her by placing his penis in her vagina.
Appellant was later stationed at Fort Rucker, Alabama, where CD testified appe llant
raped her several times, by penetrating CD’s vulva with both his penis and finger.
CD also testified that appellant anally sodomized her twice, and once used his mouth
to sodomize her vagina.

       MB testified appellant began touching her “inappropriately” after she had
lived in his home at or near Fort Rucker approximately one month. The first
touching began while MB and CD were taking a shower together. Appellant reached
past the shower curtain, into the shower and touched both CD’s and MB’s vaginas.
MB also testified that on another occasion in the girls’ bedroom, appellant touched
both her and CD’s vaginas. Appellant also placed his tongue inside MB’s vagina,
which she referred to as her “front private part.” Appellant once tried to insert his
penis into MB’s anus, but was unsuccessful. On yet another occasion, appellant
placed his penis in MB’s vagina before MB went to school.

       Appellant used signals to let MB and CD know he was about to abuse them.
For example, he would tell them to flush the toilet . CD and MB would then hold
hands and walk into the bathroom, expecting to be abused. Appellant would follow
them into the bathroom and sometimes would touch the girls’ genitals with his
hands.




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      Appellant was also convicted of possessing over four hundred images and
photographs of child pornography. This child pornography was found on appellant’s
personal computer, under a password-protected folder called “marc doshier.”

                              LAW AND DISCUSSION

                           Excepting “Divers Occassions”

       Appellant alleges the panel entered ambiguous findings for three
specifications. Our superior court has held that a court of criminal appeals cannot
review a conviction for factual sufficiency under Article 66, UCMJ, when a n
appellant is charged with committing an illegal act “on divers occasions,” but was
found guilty at trial by exceptions and substitutions to a single unspecified act. See
United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003). When the phrase “on divers
occasions” is removed from a specification, the effect is “that the accused has been
found guilty of misconduct on a single occasion and not guilty of the remaining
occasions.” United States v. Augspurger, 61 M.J. 189, 190 (C.A.A.F. 2005). We
cannot conduct a factual sufficiency review in such a context because a “Court of
Criminal Appeals cannot find as fact any allegation in a specification for which the
fact-finder below has found the accused not guilty.” Walters, 58 M.J. at 395.

       The government concedes two of the claims and further urges us not to affirm
certain language from a third specification. Upon review of the record, we agree
with the government and discuss each specification in turn.

        First, in Specification 1 of Charge I, the government charged appellant with
raping CD on divers occasions at or near Fort Rucker, Alabama. The panel entered
not guilty findings for the “on divers occasions” language. The child victim, CD,
testified that appellant raped her in her parent’s bedroom. CD cou ld remember
appellant raping her one time in Germany, but stated “[i]t only happened once [at or
near Fort Rucker] that I can remember.” However, MB testified about another
incident in MB’s and CD’s bedroom where appellant raped CD. In particular, MB
testified that appellant raped CD before he raped her. In particular, MB answered
“Yes, ma’am” when asked if appellant ever touched her front private part with his
front private part. MB further explained “at first he did it to [CB], then he came
over and did it to me.” In our view, the panel could rationally have convicted
appellant for raping CD based on either incident. The finding of guilty of
Specification 1 of Charge I is thus ambiguous.

        Second, in Specification 2 of Charge III, the government charged appellant
with sodomizing CD on divers occasions at or near Fort Rucker, Alabama. CD
testified about two incidents where appellant anally sodomized her. The first
incident was in CD’s bedroom at night, and the second occurred in the dining room
while other family members were outside. The panel returned not guilty findings



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DOSHIER—ARMY 20120691

for the “on divers occasions” language in the specification. The findings do not
distinguish which incident formed the basis for this conviction, and thus the finding
of guilty for this specification is ambiguous as well.

       The third specification at issue does not strictly involve a Walters issue, but
does require relief. Specification 8 of Charge I alleged that appellant engaged in
sexual contact with MB on divers occasions by touching her breasts and anus. Like
the other specifications, the panel found appellant not guilty of the “on divers
occasions” language. However, MB testified that appellant only put his hands on
her breasts once. She also testified that he did not touc h her “private part number
two,” which was her term for anus. 1 Accordingly, the findings are not ambiguous
regarding appellant touching MB’s breasts because the evidence reflects he only did
so once. Further, the evidence is not legally sufficient for ap pellant touching MB’s
anus, because no such evidence was presented at trial. We will not affirm language
referring to appellant touching MB’s anus .

       “[T]he remedy for a Walters violation is to set aside the finding of guilty to
the affected specification and dismiss it with prejudice.” United States v. Scheurer,
62 M.J. 100, 112 (C.A.A.F. 2005). Accordingly, we will take such action to the
affected specifications in our decretal paragraph.

             The General Verdict for Possession of Child Pornography

       Among other offenses, the panel convicted appellant of knowingly possessing
over four hundred photographs and images of child pornography of minors engaged
in sexually explicit conduct, in violation of Clauses 1 and 2 of Article 134, UCMJ.
In charging the panel, the military judge instructed:

             In summary, you must review each image and determine
             whether it is child pornography. You may determine that
             all are child pornography or that none are child
             pornography. However, if you determine that some are



1
  Appellant argues the findings are ambiguous for appellant touching MB’s anus
because MB testified that appellant touched her “front private part” on multiple
occasions without explicitly describing what part of her anatomy “front private part”
represented. Put another way, appellant argues that MB could be referring to her
anus when discussing her “front private part.” However, MB could distinguish
between her vagina and her anus and also used the terms “front private part” and
“back private part.” We are convinced beyond a reasonable doubt that MB was not
discussing her anus when she used the term “front private part.”




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DOSHIER—ARMY 20120691

             child pornography, then you must specify which images
             either are, or are not, child pornography.

While deliberating, the panel reviewed approximately six hundred images of alleged
child pornography. The panel returned a general verdict finding appellant guilty of
the specification as drafted: that is, of knowingly possessing over four hundred
images and photographs of child pornography. 2

       It is apparent from our review of the evidence that some of the images
presented to the panel clearly do not constitu te child pornography. 3 As appellant
notes in his brief, some images include depictions of a door, a sign, the back of
someone’s head, fully-clothed children, children in bikinis, and images too small to
determine their content. However, we have reviewed every image and are convinced
beyond any reasonable doubt that at least three hundred of these files constitute
child pornography.

       This issue, however, is not merely one of sufficiency of the evidence and
affirming appellant’s possession of three hundred images of child pornography
without further analysis. We must determine whether we can affirm possession of
three hundred images and photographs of child pornography in light of the panel’s
general verdict. When charges implicate both criminal and const itutionally
protected conduct, the distinction between what is permitted and what is prohibited
constitutes a matter of “critical significance.” United States v. O'Connor, 58 M.J.
450, 453 (C.A.A.F. 2003). “Where a general verdict of guilt is based in part on
conduct that is constitutionally protected, the Due Process Clause requires that the
conviction be set aside.” United States v. Barberi, 71 M.J. 127, 128 (C.A.A.F.
2012) (citing Stromberg v. California, 283 U.S. 359, 368–70, 51 S.Ct. 532, 75 L.Ed.
1117 (1931)). “[I]f a factfinder is presented with alternative theories of guilt and

2
 The record contains two enclosures to the findings worksheet, which list the name
of every file of alleged child pornography, along with a corresponding box for the
panel to mark whether that particular file constitutes child pornography. The panel
president initialed the first page of each attachment, circled “yes” on the first block,
and wrote “all” next to his initials. Given these enclosures and the findings, it
appears that the panel found all of the images and photographs constituted child
pornography.
3
  Appellant argues this issue as the panel members not following the military judge’s
instructions. However, in our view, the ultimate issue is not whether the members
followed instructions, but rather the sufficiency of the evidence and the val idity of
the verdict as a matter of law for appellant’s possession of child pornography
conviction.




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one or more of those theories is later found to be unconstitutional, any resulting
conviction must be set aside when it is unclear which theory the factfinder relied on
in reaching a decision.” United States v. Cendejas, 62 M.J. 334, 339 (C.A.A.F. 2006)
(citing Stromberg, 283 U.S. at 368).

       The panel reviewed some evidence that was constitutionally protected. We
therefore must determine “whether there is a reasonable pos sibility that the evidence
complained of might have contributed to the conviction.” Barberi, 71 M.J. at 132
(quoting Chapman v. California, 386 U.S. 18, 23 (1967) (additional citation
omitted)). “To say that an error did not contribute to the verdict is . . . to find that
error unimportant in relation to everything else the jury considered on the issue in
question, as revealed in the record.” United States v. Gardinier, 67 M.J. 304, 306
(C.A.A.F. 2009) (citation and quotation marks omitted). “An error in admitting
plainly relevant evidence which possibly influenced the jury adversely to a litigant
cannot . . . be conceived of as harmless.” Chapman, 386 U.S. at 23–24 (citation
omitted).

       The Air Force Court of Criminal Appeals has identified three factors in
determining whether the evidence complained of might have contributed to the
verdict: (1) The quantitative strength of the evidence; (2) The qualitative nature of
the evidence; and (3) The circumstances surrounding the offense as they relate to the
elements of the offense charged. United States v. Piolunek, 72 M.J. 830, 838 (A.F.
Ct. Crim. App. 2013), review granted 73 M.J. 281 (C.A.A.F. 2014). Here, the first
two factors weigh in favor of the government , given the amount and type of child
pornography presented to the panel. The government presented an overwhelming
number of child pornography files. The evidence of minors engaged in sexually
explicit content in those files is similarly overwhelming. For example, the military
judge admitted a report prepared by the National Center for Missing and Exploited
Children documenting that the child pornography in this case came from well -
established series, including the Vicky Series and the Tara Series.

       The circumstances of this case are quite distinct from Barberi. Barberi
involved six photographs presented to the panel, of which only two constituted child
pornography. 71 M.J. at 129. The other four photographs were constitutionally
protected. Id. at 130-131. The panel in Barberi faced a substantially different
evidentiary posture than the panel in this case. This panel erred by apparently
finding that every file submitted to it con stituted child pornography. However,
panels from time to time make guilty findings where the evidence is insufficient as a
matter of law. See, e.g., United States v. Bright, 66 M.J. 359 (C.A.A.F. 2008)
(setting aside a rape conviction for legal insuffici ency). The panel’s verdict was
correct in law and fact for at least three hundred images of child pornography, an
amount of child pornography substantially greater than the images at issue in
Barberi.




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       The panel surely considered the constitutionally protected evidence, as it
weighed all the evidence. However, it is an altogether different question as to
whether the panel’s consideration of this constitutionally-protected evidence
invalidates the panel’s decision as to at least three hundred images of child
pornography. We are convinced beyond a reasonable doubt that a rational panel
would have found appellant guilty of possessing at least three hundred images and
photographs of child pornography absent the error. The quantity and quality of the
evidence in question is too overwhelming to conclude otherwise.

                          Ineffective Assistance of Counsel

      Appellant, in a statement made under penalty of perjury and through his
appellate defense counsel, makes a variety of allegations that his trial defense
counsel were ineffective. One of appellant’s ineffective assistance of counsel claims
warrants discussion, but no relief. 4

       Appellant alleges that his defense counsel did not discuss with him in great
detail his testimony on the merits at trial. Appellant claims his trial defense counsel
suggested he testify, but never discussed the pros and cons of testifying on the
merits. Appellant asserts he would have considered his counsels’ advice on whether
or not to testify. He does not explain how his testimony would have changed in any
event. Appellant also alleges that his defense counsel never discussed potential
cross-examination questions with him.

       Upon order from this court, appellant’s trial defense counsel filed affidavits
responding to appellant’s allegations. Their affidavits directly contradict appellant’s
claim regarding his testimony. They claim appellant was resolute in his decision to
testify and always wished to explain himself to the panel. Counsel also claim they
prepared him for direct examination and cross-examination and explained to him the
pros and cons of testifying.

       To support an ineffective assistance of counsel claim, appellant must meet a
two-prong test that his defense counsel’s performance was deficient and that the
deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S.
668 (1984); United States v. Wean, 45 M.J. 461 (C.A.A.F. 1997). See also United
States v. Green, 68 M.J. 360 (C.A.A.F. 2010). We have the authority to resolve an

4
  For example, among other claims, appellant argues that his trial defense counsel
relied on appellant’s theory that his ex -wife “brainwashed” the victims into making
allegations against him. However, appellant has not presented this court with a
viable alternate theory sufficient to create a reasonable probability of a different
result.




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ineffectiveness claim on the prejudice prong, without resolving the first prong. See
Strickland, 466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim on
the ground of lack of sufficient prejudice, which we expect will often be so, that
course should be followed.”).

       Upon review of the record, appellant has not met his burden of establishing
prejudice: “a reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.” Strickland, 468 U.S. at 694.
“A reasonable probability is a probability sufficient to undermine confidence in th e
outcome.” Id.

       Here, the affidavits are in material factual conflict regarding appellant’s
decision to testify and his counsels’ advice to him about testifying. However, we
need not order an evidentiary hearing in this case because “the facts alleged in the
affidavit allege an error that would not result in relief even if any factual dispute
were resolved in appellant's favor.” United States v. Ginn, 47 M.J. 236, 248
(C.A.A.F. 1997).

      Appellant has not met his burden of prejudice for two reasons. F irst, we are
convinced the result would have been the same if appellant had not testified. The
government presented a strong case against appellant . The child victims, MB and
CD, testified powerfully and credibly about the crimes appellant committed aga inst
them. The evidence of appellant’s possession of child pornography was similarly
overwhelming. While a finder of fact could use appellant’s testimony as evidence
against him, see United States v. Pleasant, 71 M.J.709 (Army Ct. Crim. App. 2012),
the panel did not need appellant’s testimony to convict him. The government’s case
was compelling without appellant’s testimony. Consequently, the absence of
appellant’s testimony does not present a reasonable probability of a different result.

       Second, appellant has not explained how he would have testified differently,
even assuming every fact in his affidavit in his favor. For example, he has not
explained how the theory or substance of his testimony would be different. Given
this absence of explanation, appellant has not met his burden to establish a
reasonable probability of a different result if his testimony had changed.

                                Sentence Reassessment

      Based on the errors noted above, we must determine whether we can reliably
reassess appellant’s sentence. See United States v. Winckelmann, 73 M.J. 11
(C.A.A.F. 2013); United States v. Sales, 22 M.J. 305 (C.M.A. 1986). In determining
whether we can reassess the sentence, we apply several non -exhaustive factors:

   1) Dramatic changes in the penalty landscape.




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DOSHIER—ARMY 20120691

   2) Whether an appellant chose sentencing by members or a military judge alone.
      As a matter of logic, judges of the courts of criminal appeals are more likely
      to be certain of what a military judge would have done as opposed to
      members. This factor could become more relevant where charges address
      service custom, service discrediting conduct or conduct unbecoming.

   3) Whether the nature of the remaining offenses capture the gravamen of
      criminal conduct included within the original offenses and, in related manner,
      whether significant or aggravating circumstances addressed at the court -
      martial remain admissible and relevant to the remaining offenses.

   4) Whether the remaining offenses are of the type that judges of the courts of
      criminal appeals should have the experience and familiarity with to reliably
      determine what sentence would have been imposed at trial.

Winckelmann, 73 M.J. at 15-16.

       The first factor weighs in favor of the government. Appellant still faces a
maximum punishment of confinement for life, among other punishments. However,
we recognize that we are dismissing with prejudice several offenses aut horizing
confinement for life. Second, while members sentenced appellant, these offenses are
not uniquely military offenses. Third, appellant remains convicted of repeated,
sexual abuse of his biological daughter and his niece, along with his conviction for
possessing substantial child pornography. Thus, while we dismiss some
specifications covering some instances of child sexual abuse, appellant’s broad
swath of criminal conduct remains palpable. Fourth, we have the familiarity and
experience with the remaining offenses to reli ably determine what sentence would
have been imposed at trial.

       After weighing these factors, we are convinced the panel would have adjudged
the same sentence. Appellant repeatedly sexually abused his natural daughter, CD,
and his niece through marriage, MB. He also downloaded hundreds of images of
child pornography to satisfy his criminal sexual desires.

                                   CONCLUSION

      On consideration of the entire record, the findings of guilty of Specification 1
of Charge I and Specification 2 of Charge II I are set aside. Those specifications are
dismissed with prejudice. We only affirm so much of Specification 8 of Charge I as
follows:

             In that [appellant], U.S. Army did at or near Fort Rucker,
             Alabama, between on or about 10 February 2009 and on or
             about 17 September 2010, engage in sexual contact, to



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             wit: touching with his hand the breasts of MB, a child who
             had not attained the age of 12 years.
We only affirm so much of the Specification of Charge IV as follows:

            In that [appellant], U.S. Army, did, at or near F ort Rucker,
            Alabama, on or about 1 September 2010, knowingly
            possess at least three hundred photographs and images of
            child pornography of minors engaged in sexually explicit
            conduct, this conduct prejudicial to good order and
            discipline or likely to bring discredit upon the armed
            forces.

The remaining findings of guilty are AFFIRMED. The sentence is AFFIRMED. All
rights, privileges, and property, of which appellant has been deprived by virtue of
the findings, hereby set aside by this decision, are ordered restored.

      Judge CAMPANELLA and Judge CELTNIEKS concur.


                                       FOR
                                        FORTHE
                                            THECOURT:
                                                COURT:




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




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