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

                           UNITED STATES, Appellee
                                        v.
                      Private First Class JASON A. CLOSE
                         United States Army, Appellant

                                  ARMY 20140984

         Headquarters, U.S. Army Fires Center of Excellence and Fort Sill
        Jeffery R. Nance, Military Judge (arraignment and motions hearing)
                      Jeffrey W. Hart, Military Judge (trial)
           Colonel Mark W. Seitseinger, Staff Judge Advocate (pretrial)
          Colonel David E. Mendelson, Staff Judge Advocate (post-trial)

For Appellant: Major Andres Vazquez, Jr., JA; Captain Michael A. Gold, JA (on
brief); Lieutenant Colonel Melissa R. Covolesky, JA; Captain Katherine L. DePaul,
JA; Captain Michael A. Gold, JA (on reply brief); Captain Katherine L. DePaul, JA;
Captain Michael A. Gold, JA (on supplemental brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie, III,
JA; Major Anne C. Hsieh, JA; Major Steve T. Nam, JA (on brief).


                                    22 March 2017

                              ---------------------------------
                              SUMMARY DISPOSITION
                              ---------------------------------

PENLAND, Judge:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of two specifications of possessing child pornography, in
violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 (2012)
[hereinafter UCMJ]. 1 The military judge sentenced appellant to a dishonorable
discharge, confinement for two years, forfeiture of all pay and allowances, and
reduction to the grade of E-1. The convening authority approved only so much of
the adjudged sentence as provided for a dishonorable discharge, confinement for
twenty-three months, total forfeitures, and reduction to the grade of E-1.

1
 Appellant was acquitted of rape and forcible sodomy of a child under the age of
twelve and two specifications of indecent acts with a child.
CLOSE—ARMY 20140984

       This case is before us pursuant to Article 66, UCMJ. Appellant assigned two
errors, one of which merits discussion but not relief. Additionally, we have
reviewed both sets of appellant’s matters personally asserted pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find they lack merit.

                                   BACKGROUND

      Appellant’s court-martial concluded on 9 December 2014 and the transcript
was completed on 29 January 2015. Appellant’s military defense counsel, CPT JK,
submitted three pages of corrections on the errata sheet he signed. These corrections
did not include any corrections between pages 250 and 448.

      Defense appellate counsel filed with this court a motion to attach an affidavit
signed by CPT JK on 12 July 2016 which alleged:

             1. The transcript included in the appellate record for PFC
             Close’s appeal is incomplete. 2

             2. On page 324, line 4 of the transcript, the record states:
             “[The civilian defense counsel played Defense Exhibit
             A.][sic].” This statement does not accurately reflect the
             statements that were made during court-martial.

             3. During the playing of Defense Exhibit A, the Civilian
             Defense Counsel (CDC) engaged in a detailed colloquy
             with the witness 3 about her statements and actions
             displayed on Exhibit A. This colloquy between the CDC
             and the witness is not included in the appellate record.

       We ordered the government to obtain affidavits on this issue. The
government moved this court to attach the court reporter’s recent transcription of the
nine pages of the omitted portion of the court-martial transcript. 4 The government
has also filed motions to attach affidavits from the court reporter, the military judge,

2
  Captain JK’s first affidavit does not explain why he did not raise this issue during
the errata process.
3
 The witness referred to by CPT JK is WA, the victim of the rape and forcible
sodomy of a child under the age of twelve and indecent acts with a child
specifications of which appellant was acquitted.
4
 We required the government to obtain confirmation from trial counsel, civilian
defense counsel, and CPT JK that the newly-provided transcript is an accurate record
of the proceedings.
                                           2
CLOSE—ARMY 20140984

and a second affidavit from CPT JK. These affidavits confirm CPT JK’s observation
that the transcript was incomplete and conclude that the nine pages transcribed by
the court-reporter are an accurate transcription. We granted these motions and are
now able to address this assigned error.

                                   LAW AND ANALYSIS

       Whether a transcript is complete and verbatim is a question of law we review
de novo. United States v. Henry, 53 M.J. 108, 110 (C.A.A.F. 2000))(“The
requirement that a record of trial be complete and substantially verbatim in order to
uphold the validity of a verbatim record sentence is one of jurisdictional proportion
that cannot be waived.”). According to Rule for Courts-Martial [hereinafter R.C.M.]
1103(b)(2):

               (B) . . . [T]he record of trial shall include a verbatim
               transcript of all sessions except sessions closed for
               deliberations and voting when: (i) The sentence adjudged
               includes confinement for twelve months or more or any
               punishment that may not be adjudged by a special court-
               martial; or (ii) A bad-conduct discharge has been
               adjudged.

               ...

               (D) . . . In addition to the matter required under subsection
               (b)(2)(B) or (b)(2)(C) of this rule, a complete record shall
               include: (i) The original charge sheet or a duplicate; (ii)
               A copy of the convening order and any amending order(s);
               (iii) The request, if any, for trial by military judge alone,
               or that the membership of the court-martial include
               enlisted persons, and, when applicable, any statement by
               the convening authority required under R.C.M.
               201(f)(2)(B)(ii) or 503(a)(2); (iv) The original dated,
               signed action by the convening authority; and (v) Exhibits,
               or, with the permission of the military judge, copies,
               photographs, or descriptions of any exhibits which were
               received in evidence and any appellate exhibits. 5

       When our superior court addressed this issue in United States v. Davenport, it
noted, although a nonverbatim transcript and an incomplete record are separate and
distinct errors under the R.C.M., the distinction had been blurred by dicta in
previous cases. 73 M.J. 373, 376 (C.A.A.F. 2014) (citing United States v. Gaskins,

5
    See also UCMJ art. 54(c)(1).
                                            3
CLOSE—ARMY 20140984

72 M.J. 225, 230 (C.A.A.F. 2013)). In Davenport, the transcript was missing all of
the testimony of a key government witness and the court reporter was unable to
recreate the transcript by the time the omission was discovered on appeal. Id. at
375. Our superior court held that the transcript was nonverbatim because it could
not be determined that the omitted witness’s testimony related only to offenses of
which Davenport was acquitted. Id. at 378.

      In appellant’s case, a verbatim transcript is clearly required based upon
appellant’s sentence. We are confident that the transcript is now verbatim and
complete given the addition of the omitted portion of the transcript.

                                  CONCLUSION

      The findings of guilty and sentence are AFFIRMED.

      Senior Judge CAMPANELLA and Judge HERRING concur.

                                       FOR THE COURT:




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




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