UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                             TOZZI, FEBBO, and BURTON
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                        Sergeant CHRISTOPHER D. BUSH
                          United States Army, Appellant

                                  ARMY 20150610

       Headquarters, 82d Airborne Division (Rear) (Provisional) (convened)
                   Headquarters, 82d Airborne Division (action)
                    Christopher T. Fredrikson, Military Judge
      Lieutenant Colonel Susan K. McConnel, Staff Judge Advocate (pretrial)
            Colonel Dean L. Whitford, Staff Judge Advocate (post-trial)


For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA;
Captain Patrick J. Scudieri, JA (on brief).

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


                                     25 April 2017

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

Per Curiam:

       A panel composed of officer and enlisted members sitting as a general court-
martial convicted appellant, contrary to his pleas, of two specifications of
aggravated sexual assault of a child, one specification of abusive sexual contact with
a child, and one specification of obstruction of justice, in violation of Articles 120
and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920, 934 (2006 & Supp. II
2009; 2006 & Supp. III 2010; 2006 & Supp. IV 2011) [hereinafter UCMJ]. The
panel sentenced appellant to a dishonorable discharge, confinement for fifteen years,
forfeiture of all pay and allowances, and reduction to the grade of E-1. The
convening authority approved the sentence as adjudged.
BUSH—ARMY 20150610

         Appellant’s case is before this court for review under Article 66, UCMJ.
Appellate defense counsel raises three errors, one of which merits discussion and
relief. * After review of the entire record, we find no evidence that appellant’s
conduct of obstruction of justice was prejudicial to good order and discipline in the
armed forces. We provide relief in our decretal paragraph.

                                  BACKGROUND

       Appellant lived on post at Fort Lewis, Washington, with his family, which
included his then twelve-year-old daughter BB. In 2009, BB received a diary for her
birthday that she would write in by her own account “every time [she] remembered
to, when [she] was really upset about something or emotional about something or

*
  We have also reviewed those matters personally raised by appellant pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and they are without merit.
Appellant personally asserts, inter alia, his trial defense counsel were ineffective
because they failed to use multiple documents, ask specific questions, argue unlawful
command influence, and file a motion under Military Rule of Evidence 403 to exclude
evidence of nonjudicial punishment under Article 15, UCMJ, for driving while
intoxicated and drug usage. Appellant submitted no additional affidavits, unsworn
declarations made under penalty of perjury, or any signed statements from anyone else
supporting his specific claims of ineffective assistance. See United States v. Axtell,
72 M.J. 662, 665-66 (Army Ct. Crim. App. 2013). See also United States v.
Gunderman, 67 M.J. 683, 684, 686-88 (Army Ct. Crim. App. 2009); United States v.
Ellis, 47 M.J. 20, 22 (C.A.A.F. 1997). The “errors” appellant alleges are tactical
decisions reserved for the defense counsel. “[W]e must remain mindful that counsel
have wide latitude . . . in making tactical decisions.” United States v. Akbar, 74 M.J.
364, 379 (C.A.A.F. 2015) (internal quotation marks and citations omitted). Our
analysis of counsel’s performance is highly deferential. Strickland v. Washington,
466 U.S. 668, 689 (1984). We are not to assess counsel’s actions through the
distortion of hindsight; rather, we are to consider counsel’s actions in light of the
circumstances of the trial and under the “strong presumption that counsel’s conduct
falls within the wide range of professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action ‘might
be considered sound trial strategy.’” Id. (quoting Michel v. Louisiana, 350 U.S. 91,
101 (1955)).

Under the circumstances of this case, we see no need to order affidavits from counsel
or a fact-finding hearing pursuant to United States v. DuBay, 17 U.S.C.M.A. 147, 37
C.M.R. 411 (1967). The facts in appellant’s allegations—even if true—“would not
result in relief . . . .” United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997).
Furthermore, “the appellate filings and the record as a whole ‘compellingly
demonstrate’ the improbability of [appellant’s allegations.]” Id. Applying the first
and fourth Ginn principles to appellant’s submission, we reject appellant’s ineffective
assistance claim.
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BUSH—ARMY 20150610

something, like, big happened that day.” The diary was kept in BB’s room. In
January 2011, BB showed her mother, KB, an entry she had made in her diary that
stated appellant had inserted his penis into BB’s vagina.

       After confronting appellant, KB took BB to the hospital and met with law
enforcement. When KB and BB returned to the home later that evening with a police
escort to retrieve some items to include the diary, appellant told KB that he had
burned the diary. Remnants of the diary were found on the family grill.

                             LAW AND DISCUSSION

       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); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979);
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.

       The Specification of Charge III is charged in violation of Article 134, UCMJ,
with the terminal element charged as prejudicial to good order and discipline.
Appellant raises as error, in part, that there is no evidence appellant’s conduct was
prejudicial to good order and discipline. The government concedes this point and
our review of the record discloses no evidence to show appellant’s behavior had any
impact on the unit.

                                  CONCLUSION

      Having completed our review and in consideration of the entire record, the
findings of guilty of Charge III and its Specification are set aside and DISMISSED.
The remaining findings of guilty are AFFIRMED.

       We are able to reassess the sentence on the basis of the error noted, and do so
after conducting a thorough analysis of the totality of 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, 307-08 (C.M.A. 1986). First, with the maximum
period of confinement decreasing from sixty years to fifty-five years, we find no
dramatic change in the penalty landscape or exposure. Second, although appellant

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BUSH—ARMY 20150610

was sentenced by members, this factor carries less weight here because the
remaining offenses do not “address service custom, service discrediting conduct or
conduct unbecoming.” Winckelmann, 73 M.J. at 16. Third, the gravamen of
appellant’s misconduct remains unchanged. Fourth, based on our experience, we are
familiar with the remaining offenses so that we may reliably determine what
sentence would have been imposed at trial.

       After reassessing the sentence based on the errors noted, the entire record, and
in accordance with the principles articulated by our superior court, we are confident
the panel would have imposed a sentence of at least that which was adjudged, and
accordingly we AFFIRM the approved sentence. We find this reassessed sentence is
not only purged of any error but is also appropriate. All rights, privileges, and
property, of which appellant has been deprived by virtue of that portion of his
findings set aside by our decision, are ordered restored. See UCMJ arts. 58a(b),
58b(c), 75(a).



                                           FOR THE COURT:




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




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