UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                           Before
                             CAMPANELLA, PENLAND, and WOLFE
                                  Appellate Military Judges

                               UNITED STATES, Appellee
                                           v.
                        Private E-2 JEFFRY A. FELICIANO, JR.
                             United States Army, Appellant

                                        ARMY 20140766

                              Headquarters, I Corps
                  Andrew J. Glass, Military Judge (arraignment)
                    Samuel A. Schubert, Military Judge (trial)
           Colonel Randall J. Bagwell, Staff Judge Advocate (pre-trial)
Lieutenant Colonel Christopher A. Kennebeck, Acting Staff Judge Advocate (post-trial)


For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major Christopher D.
Coleman, JA; Captain Jennifer K. Beerman, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major Daniel D. Derner, JA; Captain
Steve T. Nam, JA (on brief).


                                         22 August 2016

                                   ----------------------------------
                                    MEMORANDUM OPINION
                                   ----------------------------------

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

WOLFE, Judge:

       We discuss three issues in this appeal. 1 First, we address appellant’s assigned
errors that the evidence is legally and factually insufficient. After reviewing the
record, we find the evidence both legally and factually sufficient. Next, we
determine that appellant’s two convictions for attempted sexual assault were
unreasonably multiplied when there was only a single attempt. Accordingly, we
conditionally dismiss one of the specifications. Finally, we discuss the military

1
 Appellant also personally raised several issues pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982). Except for appellant’s claim of unreasonable
multiplication of charges, the matters raised by appellant warrant neither discussion
nor relief.
FELICIANO—ARMY 20140766

judge’s instructions to the panel on sex offender registration. As we find the
military judge did not commit error, we order no relief.

       At a general court-martial, appellant pleaded guilty to one specification of
disrespect towards a non-commissioned officer, one specification of disobeying a
non-commissioned officer, two specifications of wrongfully using marijuana, and
one specification of being disorderly, in violation of Articles 91, 112a, and 134,
Uniform Code of Military Justice, 10 U.S.C. §§ 891, 912a, 934 (2012) [hereinafter
UCMJ]. Contrary to his pleas, an officer and enlisted panel convicted appellant of
two specifications of attempted sexual assault in violation of Article 120, UCMJ.
The court-martial sentenced appellant to be discharged from the Army with a bad-
conduct discharge, to be confined for one year, to forfeit all pay and allowances, and
to be reduced to the grade of E-1. The convening authority approved the sentence as
adjudged.

                                  BACKGROUND

       On 22 January 2011, appellant, Specialist (SPC) Schwartz and Private (PV2)
KF went out drinking. As the night out concluded, SPC Schwartz drove the trio
back to the barracks. En route, they were pulled over by the police. Specialist
Schwartz barely passed a breathalyzer test. The officer released them after
determining that SPC Schwartz was the most sober individual. They then drove back
to the barracks, stopping to buy more alcohol. When they returned to the barracks,
appellant and PV2 KF continued drinking. Eventually, all three went to bed in
appellant’s bed. Specialist Schwartz, however, eventually left the bed to sleep in a
nearby chair. Specialist Schwartz awoke a short time later to see appellant on top of
PV2 KF. Appellant was holding himself up with one hand while “starting to pull his
britches down” with the other. Specialist Schwartz testified that PV2 KF’s
“britches” were around her knees. Later he answered the question, “where were her
pants?” by saying “By her knees.” He also testified that she was saying “no, no, no”
and that she was in “a state of unconsciousness” and was “passed out.” SPC
Schwartz confronted appellant and told appellant that “what he was doing was rape”
and “that if he continued along they would definitely get him for rape. . . .”
Appellant responded by saying “You know what? You’re right” and got off of PV2
KF.

      Private KF was not called by the government. She testified briefly for the
defense. Appellant did not testify.




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                                LAW AND ANALYSIS

                            A. Factual and Legal Sufficiency

       In accordance with Article 66(c), UCMJ, we review issues of legal and factual
sufficiency de novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002). The test for legal sufficiency is “whether, considering the evidence in the
light most favorable to the prosecution, a reasonable factfinder could have found all
the essential elements beyond a reasonable doubt.” United States v. Turner, 25 M.J.
324, 324 (C.M.A. 1987) (internal citations omitted); see also United States v.
Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002). In resolving questions of legal
sufficiency, we are “bound to draw every reasonable inference from the evidence of
record in favor of the prosecution.” United States v. Barner, 56 M.J. 131, 134
(C.A.A.F. 2001). The test for factual sufficiency is “whether, after weighing the
evidence in the record of trial and making allowances for not having personally
observed the witnesses, [we] are [ourselves] convinced of the accused’s guilt beyond
a reasonable doubt.” Turner, 25 M.J. at 325.

       Appellant’s claim that the evidence is legally and factually insufficient boils
down to questioning the credibility of SPC Schwartz. By the time of trial, SPC
Schwartz had been chaptered out of the Army for using marijuana. The defense
called five witnesses who said SPC Schwartz had a reputation for being untruthful.
Additionally, the defense elicited from SPC Schwartz that he was a reluctant witness
and that he was testifying, at least in part, in order to get the per diem accorded to
travelling witnesses. The government responded that none of the reputational
witnesses were aware of SPC Schwartz ever lying to them, and that he was entirely
honest when directly confronted.

     The following exchange between the defense counsel and SPC Schwartz
demonstrates his bluntness while testifying:

             Q: And you’ve already testified that you’re not employed
             at all so you’re not getting any money from an employer?

             A: No, sir.

             Q: Now, you are getting per diem for participating in this
             trial, aren’t you?

             A; Yes, sir.

             Q: So they’re paying you a few hundred dollars to come
             out here and be present?


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            A: I guess. I haven’t been told anything really about any
            money.

            Q: And outside in this waiting room just a few minutes
            ago you said “I don’t care about this. I’m just doing this
            for the money?”

            A: I don’t care about this. Even when [appellant and PV2
            KF] were in my life, they were menial [sic] people to me.

            Q: And you’re just doing this for the money?

            A: I’m doing this to tell the truth. Also for the money.

            Q: Get a few hundred extra dollars?

            A: Oh, yeah. Everybody can use some money.

      A short while later, the trial counsel attempted to rehabilitate SPC Schwartz
and give him an opportunity to explain why he was testifying. The trial counsel was
only partially successful:

            Q: Mr. Schwartz, why are you testifying today?

            A: Well, I told that girl back in 2011 that I would do
            whatever she decided. I mean, it took quite a while for
            her to decide what she was going to do. And I feel that
            it’s right to testify for her. But at the same time, I do
            need the money. I am having a baby and I am
            unemployed. So yes, I do need the money.

       Certainly, appellant’s view that SPC Schwartz’s testimony presents clear
evidence of bias is a reasonable one. However, on the other hand, SPC Schwartz’s
lack of defensiveness may also be viewed as a display of unusual candor. Specialist
Schwartz did not shy away from the allegation of bias.

      In United States v. Crews we discussed the relative disadvantage of an
appellate court in attempting to assess credibility from a cold transcript:

            The deference given to the trial court’s ability to see and
            hear the witnesses and evidence—or “recogni[tion]” as
            phrased in Article 66, UCMJ—reflects an appreciation that
            much is lost when the testimony of live witnesses is
            converted into the plain text of a trial transcript. While

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             court-reporter notes may sometimes reflect a witness’s
             gesture, laugh, or tearful response, they do not attempt to
             reflect the pauses, intonation, defensiveness, surprise,
             calm reflection, or deception that is often apparent to
             those present at the court-martial. A panel hears not only
             a witness’s answer, but may also observe the witness as he
             or she responds. For instance, a transcript may state “I am
             showing the witness prosecution exhibit 13 for
             identification” but will leave unstated the witness’s
             demeanor—whether surprise, recognition, or dread, when
             reviewing or confronted with evidence.

             To say that an appellate court is at a relative disadvantage
             in determining questions of fact as compared to a trial
             court is to state the obvious.

United States v. Crews, ARMY 20130766, 2016 CCA LEXIS 127, at *11-12 (Army.
Ct. Crim. App. 29 Feb. 2016). Similarly, in United States v. Davis, 75 M.J. 537, 546
(Army Ct. Crim. App. 2015) (en banc), we noted that “the 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.”
At least as far back as 1990, we discussed the degree of deference given to a trial
court’s ability to see the witnesses. United States v. Johnson, 30 M.J. 930, 934
(A.C.M.R. 1990) (inartfully stating that we “hesitate to second-guess” a trial court’s
findings that depend on credibility determinations).

       Put differently, we are required to make credibility determinations on appeal,
but those determinations are made with the “admonition” that we recognize the trial
court’s superior position in making those determinations. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). Thus, while we give no deference to
the factual sufficiency decisions of the trial court, Id., our assessment of the
evidence must be sifted through a filter that recognizes our inferior fact-finding
viewpoint.

       With this recognition, we assess SPC Schwartz to be credible. Accordingly
we affirm the findings as factually and legally sufficient in all but one regard. As
alleged, appellant was charged with, and found guilty of, attempted sexual assault by
pulling down PV2 KF’s pants and underwear. The record is devoid of any evidence,
regardless of credibility, regarding whether appellant pulled down PV2 KF’s
underwear and that part of the specification is therefore legally insufficient.
Accordingly, we will provide relief in our decretal paragraph.




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                     B. Unreasonable Multiplication of Charges

       Appellant was convicted of attempted sexual assault under the theory that
PV2 KF was incapacitated and under the theory that appellant was attempting to
commit a sexual assault by bodily harm. At trial, while appellant successfully
objected to the two offenses as being unreasonably multiplied for sentencing, he
never objected to the offenses as being unreasonably multiplied for findings.
Additionally, while the two offenses appeared to have been charged in the
alternative, (to address SPC Schwartz’s perhaps conflicting testimony that PV2 was
both unconscious and saying “no”), the government never explicitly stated so.
Accordingly, this case falls outside our superior court’s decision in United States v.
Elespuru, 73 M.J. 326, 329-30 (C.A.A.F. 2014)(dismissing a specification where the
government states it was charged in the alternative.).

       Therefore, appellant has forfeited any error. Additionally, the detailed motion
practice on merging the specifications for sentencing show that appellant was at the
threshold–if not crossing it–of waiving the error. In short, there was no error by the
military judge, plain or otherwise. Nonetheless, as an exercise of our discretionary
authority under Article 66(c) we will notice the issue and provide relief.

       We find the Quiroz factors weigh in favor of dismissing one specification.
United States v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001). Specifically, we give
great weight to our determination that a conviction for two specifications of
attempted sexual assault unreasonably exaggerated appellant’s criminality.

       Accordingly, we conditionally dismiss Specification 1 of Charge I, which
alleged an attempted sexual assault while PV2 KF was substantially incapable of
apprising the nature of the sexual act. See United States v. Britton, 47 M.J. 195, 203
(C.A.A.F. 1997)(J. Effron concurring); United States v. Hines, 75 MJ __ , 2016 CCA
LEXIS 439, *7-8 fn4 (Army. Ct. Crim. App. 27 Jul. 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) (defining final judgment as to the legality of the proceedings).

              C. Sentencing Instructions on Sex Offender Registration

      At the presentencing proceedings, appellant introduced two unsworn
statements. The first unsworn statement consisted of training certificates and family
photos. 2 The second unsworn statement was read by appellant’s counsel and
consisted entirely of the following:


2
  Government counsel did not object to the use of photos as an unsworn statement or
the unsworn statements of others (as contained in various training certificates) being
introduced as the unsworn statement of the accused.
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FELICIANO—ARMY 20140766


            “I am Jeffrey A. Feliciano, Junior. I am a registered sex
            offender.” This is the panel’s findings on Charge I and
            that is a phrase that Private Feliciano will now say the[]
            rest of his life. He will not be permitted to pick [his
            child] up from school, or attend school sporting events.
            He is, for the rest of his life, a sex offender.

       The military judge then gave the panel sentencing instructions. Over defense
objection, the instructions included the following:

            The accused’s unsworn statement included the mention
            that the accused will have to register as a sex offender.
            An unsworn statement is a proper means to bring
            information to your attention, and you must give it
            appropriate consideration. Your deliberations should
            focus on an appropriate sentence for the accused for the
            offenses of which the accused stands convicted. Under
            DOD instructions, when convicted of certain offenses,
            including an offense here, the accused may have to
            register as a sex offender with appropriate authorities in
            the jurisdiction in which he resides, works, or goes to
            school. Such registration is required in all 50 states;
            though the requirements may differ between jurisdictions.
            Thus, specific requirements are not necessarily
            predictable.

            It is not your duty to attempt to predict sex offender
            registration requirements, or the consequences thereof.

            While the accused is permitted to address these matters in
            an unsworn statement, these possible collateral
            consequences should not be part of your deliberations in
            arriving at a sentence. Your duty is to adjudge an
            appropriate sentence for this accused based on the
            offenses for which he has been found guilty that you
            regard as fair and just when it is imposed and not one
            whose fairness depends upon possible requirements of sex
            offender registration, and the consequences thereof, at
            certain locations in the future.




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       In short, the military judge permitted the accused in his unsworn statement to
raise the issue of sex offender registration, and then instructed the panel not to
consider the information when deliberating on a sentence. Given the brevity of
appellant’s unsworn statement, the only portion of appellant’s statement that the
panel was instructed to consider during deliberations was “I am Jeffrey A. Feliciano,
Junior.” Nonetheless, this instruction was not error and was consistent with our
superior court’s decision in United States v. Talkington, 73 M.J. 212, 218 (C.A.A.F.
2014).

       In Talkington, our superior court decided that sex offender registration is: 1)
a collateral effect of findings not sentencing; and 2) “is a consequence . . . that is
separate and distinct from the court-martial process.” Id. at 217 (internal citations
and quotations omitted). The Talkington court then found no error in the military
judge having told the panel that sex offender registration “should not be a part of
your deliberations . . . .” Id. at 214, 218.

        The court in Talkington was fully aware of the dilemma this caused. “[T]here
is a ‘tension between the scope of pre-sentencing unsworn statements and the
military judge’s obligation to provide proper instructions.’” Id. at 216 (internal
citations omitted). However, the court did not address the tension because it was not
raised. Id. This case presents two concerns about the current state of the law.

       First, in cases such as this one, the net effect of the military judge’s
instructions is to tell the panel to ignore the accused’s unsworn statement. At this
stage of trial a panel will often be familiar with curative instructions and how they
come to pass (i.e. someone made a mistake). When the military judge tells the panel
they should not consider the accused’s statements about sex-offender registration it
resembles a curative instruction. The danger is that a panel infers from the tailored
instruction that the accused was trying to subvert the sentencing rules. That is, by
telling the panel to ignore what the accused just stated, the panel may be left with
the impression that the accused’s statement was impermissible. 3 Moreover, a panel
at sentencing which has just rejected an accused’s theory of the case may be
predisposed to adopt such a viewpoint. Here, to the extent that appellant may be



3
  The panel was instructed that the accused’s statements “were permissible.”
However, in the context of an entire trial, where matters are admitted based on rules
of evidence, the members may find it perplexing that the accused is permitted to
raise matters that the military judge then instructs them to disregard. And, even if
the members can set aside this dissonance, they may still be left with the impression
that the accused was using a technicality to get impermissible information before
them. There is nothing in the trial experience that would explain to panel members
why it is not error to present information that they are not supposed to consider.

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FELICIANO—ARMY 20140766

seen as having invited this risk, he was informed of the military judge’s instructions
only after he made the unsworn statement.

       Second, while correct, it is unusual for a military judge to allow inadmissible
information to come in front of the panel only to then tell the panel to ignore it. The
alternative–prohibiting the information from coming in the first instance–would
appear to be preferable. 4 As the court discussed in Talkington, this is the turbulence
caused from the convergence of two unrelated lines of cases. Id. at 213, 215. (“This
Court has explained that while the right of allocution includes the right to present
evidence that is not relevant as extenuation, mitigation, or rebuttal, the military
judge may ‘put the information in proper context by effectively advising the
members to ignore it.’”).

       As Talkington acknowledges, this is a problem created entirely by case law,
and is contrary to Rule for Courts-Martial [hereinafter R.C.M.] 1001(c)(2)(A), which
limits the accused’s unsworn statement to matters in extenuation, mitigation, or in
rebuttal. See also Military Rules of Evidence [hereinafter Mil. R. Evid.] 1101 (rules
of evidence applicable to sentencing); 402 (irrelevant evidence is inadmissible). It
would also appear to be tautological that there is little to be gained by allowing the
introduction of inadmissible information. The military judge is the presiding officer
at a court-martial. R.C.M. 103(15); Article 26, UCMJ. The current state of the law
would appear to elevate the right of the accused to admit irrelevant information over
the military judge’s authority to exclude that same information under the rules. In a
case where the accused is only informed of the military judge’s instructions after
having made the statement, this may be to the detriment of the accused.

       In our view, the “tension” described in Talkington is best resolved by
allowing the military judge to limit unsworn statements to the matters allowed under
the rules. Such a resolution is per se not prejudicial, is in accord with the rules for
court-martial, and properly reflects the military judge’s role as the presiding officer.
The status quo, where the military judge is prohibited from enforcing the rules for
courts-martial, is at least problematic. Additionally, such an interpretation prevents
the prejudice to an accused that may arise when a panel is told to give no weight to
portions of an accused’s unsworn statement.




4
  Consider the following: Were a military judge to prevent an accused from
mentioning sex offender registration during an unsworn statement, such an action
will almost certainly be harmless error. Since the panel may be instructed to ignore
the information during deliberations, there cannot be prejudice from excluding in the
first instance what the panel would be told to ignore in the second.

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       Nonetheless, the resolution of this issue here is entirely determined by our
superior court’s decision in Talkington. As the military judge’s actions were
entirely in accord with Talkington, there is no error, and appellant is not entitled to
any relief.

                                    CONCLUSION

      The finding of guilty of Specification 1 Charge I is conditionally
DISMISSED. This court AFFIRMS only so much of the finding of guilty of
Specification 2 of Charge I as finds that:

             [appellant] did, at or near Joint Base Lewis-McChord,
             Washington, on or about 23 January 2011, attempt to
             commit the offense of aggravated sexual assault, to wit:
             penetrating Private (E-2) [KF]’s vulva with his penis, by
             causing bodily harm to her, to wit: pulling down the pants
             of the said Private [KF] with the specific intent to engage
             in a sexual act with Private [KF], and that the accused’s
             actions would have resulted in the commission of the
             offense but for the intervention of Specialist (E-4) R.S.

      The remaining findings of guilty are AFFIRMED.

      Applying the factors set out by our superior court in United States v.
Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013), we are confident that
reassessment is appropriate. There is no change to the penalty landscape because
the military judge had already merged the two specifications of Charge I for
sentencing. Reassessing the sentence on the basis of the noted error, the remaining
findings of guilty, and the entire record, we AFFIRM the sentence as approved by
the convening authority. All rights, privileges, and property, of which appellant has
been deprived by virtue of that portion of the findings set aside by our decision, are
ordered restored. See UCMJ arts. 58b(c) and 75(a).

      Senior Judge CAMPANELLA and Judge PENLAND concur.


                                             FOR
                                             FOR THE
                                                 THE COURT:
                                                     COURT:




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



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