         U NITED S TATES N AVY –M ARINE C ORPS
             C OURT OF C RIMINAL A PPEALS
                        _________________________

                            No. 201600025
                        _________________________

                 UNITED STATES OF AMERICA
                                 Appellee
                                     v.

                          DAVID B. OLSON
                  Seaman Apprentice (E-2), U.S. Navy
                             Appellant
                      _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

        Military Judge: Captain Robert J. Crow, JAGC, USN.
 Convening Authority: Commander, Navy Region Southeast, Naval
                    Air Station, Jacksonville, FL.
Staff Judge Advocate’s Recommendation: Commander Nell O. Evans,
                             JAGC, USN.
 For Appellant: Philip D. Cave, Esq.; Commander Chris D. Tucker,
   JAGC, USN; Lieutenant Jacqueline M. Leonard, JAGC, USN.
      For Appellee: Lieutenant James M. Belforti, JAGC, USN;
              Lieutenant Jetti L. Gibson, JAGC, USN .
                       _________________________

                       Decided 23 February 2017
                        _________________________

   Before C AMPBELL , FULTON, and H UTCHISON , Appellate Military
                               Judges
                      _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
                     _________________________

   HUTCHISON, Judge:
   At an uncontested general court-martial, a military judge convicted the
appellant, pursuant to his pleas, of two specifications of committing a lewd
act upon a child and one specification of unlawful entry in violation of
                        United States v. Olson, No. 201600025


Articles 120b and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§§ 920b and 934. The convening authority (CA) approved the adjudged
sentence of nine years’ confinement, reduction to pay grade E-1, total
forfeiture of pay and allowances, and a dishonorable discharge, but
suspended all confinement in excess of three years pursuant to a pretrial
agreement (PTA).
    In his sole assignment of error, the appellant alleges that the military
judge abused his discretion by accepting the appellant’s guilty pleas without
first inquiring into the appellant’s mental capacity and responsibility or
discussing the affirmative defense of lack of mental responsibility. 1 We
disagree and conclude that the findings and sentence are correct in law and
fact and that no error materially prejudicial to the substantial rights of the
appellant occurred. Arts. 59(a) and 66(c), UCMJ.
                                  I. BACKGROUND
    On 1 March 2014, after a night of drinking, as the appellant walked to his
ship, USS VICKSBURG (CG 69), he took a detour through the family housing
area onboard Naval Station Mayport. He tried to enter several houses,
hoping to “get free alcohol and meet people[,]”2 until he came upon an
unlocked door at the home Petty Officer D.R. shared with his six-year-old
daughter, L.R. Petty Officer D.R. was not home but had left L.R. in the care
of her grandfather. The appellant entered the home, carefully using his shirt
sleeve to open the door so as not to “leave any fingerprints[,]”3 made his way
to L.R.’s bedroom, and fell asleep on her floor. Upon waking, he approached
L.R. and touched her buttocks and thighs while she lay in her bed. He
subsequently removed his pants and underwear, exposing his genitalia. After
L.R. told him to leave, he hid in her closet for a short time, then fled from the
house before L.R.’s grandfather came to check on her.
  In April 2014, the appellant was first examined, pursuant to RULE FOR
COURTS-MARTIAL (R.C.M.) 706, MANUAL FOR COURTS-MARTIAL, UNITED



   1“THE MILITARY JUDGE ABUSED HIS DISCRETION BY FAILING TO
INQUIRE INTO APPELLANT’S MENTAL CAPACITY AND RESPONSIBILITY,
DISCUSS THE POSSIBILITY OF THE AFFIRMATIVE DEFENSE OF LACK OF
MENTAL RESPONSIBILITY, AND SATISFY HIMSELF THAT APPELLANT’S
TRIAL COUNSEL HAD FULLY EVALUATED THE POSSIBILITY OF THE
AFFIRMATIVE DEFENSE, PRIOR TO ACCEPTING THE APPELLANT’S GUILTY
PLEAS.” Appellant’s Brief and Assignment of Error of 1 Nov 2016 at 1.
   2 Record    at 68.
   3   Id. at 69.



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                         United States v. Olson, No. 201600025


STATES (2012 ed.), by a neuropsychologist at Naval Hospital Jacksonville.4
The R.C.M. 706 board concluded the appellant “did not suffer from a mental
disease or defect which would affect his ability to appreciate the nature,
quality or wrongfulness or criminality of his conduct or affect his inability to
conform to the requirements of the law[,]” and that he was “able to
understand the nature of the proceedings against him and to conduct and
cooperate intelligently in the defense.”5
   At a second R.C.M. 706 board, conducted in December 2014, a psychiatrist
again determined the appellant was able to appreciate “the nature and
quality and wrongfulness of his conduct” at the time of the alleged
misconduct.6 However, this psychiatrist also determined that the appellant
did “not have sufficient mental capacity to conduct or cooperate intelligently
in his defense.”7 Following an R.C.M. 909(e) hearing, the appellant was
committed to the custody of the Attorney General.
    In July 2015, the Warden of the Federal Medical Center in Butner, North
Carolina issued a “Certificate of Restoration of Competency to Stand Trial,”
certifying that the appellant was “able to understand the nature and
consequences of the proceedings against him and to assist properly in his own
defense.”8
    At trial, the appellant entered into a stipulation of fact agreeing that he
“did not at any time suffer from any mental defect or disease that caused him
to commit the offenses to which he . . . plead[ed] guilty.”9 Before admitting
the stipulation of fact into evidence, the military judge asked the appellant
whether he read it, discussed it with his attorney, understood it, and believed
everything in it was true and accurate. During presentencing, the appellant’s
father testified regarding treatment the appellant received at the Federal
Medical Center, noting that the appellant had “re-found himself[,]” gotten
“his mind back[,] and everything is in order.”10 After that testimony, the


   4 Appellate Exhibit (AE) VI. The report states that the examination occurred on 3
April 2013. However, given the fact that the appellant’s misconduct did not occur
until March 2014, it appears the date is simply a scrivener’s error.
   5 Id.

   6 Defense    Exhibit (DE) A at 2.
   7 Id.

   8 AE    VIII at 2.
   9   Prosecution Exhibit 1 at 1.
   10   Record at 127.



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                          United States v. Olson, No. 201600025


military judge addressed the appellant’s mental health with both government
counsel and the appellant’s civilian defense counsel:
         MJ:      Okay. And, for both counsel, I know the [appellant’s]
                  father just indicated that, you know, [the appellant] has
                  mental illness, but both sides are in agreement that’s all
                  been addressed, and that [the appellant] is, you know,
                  one, competent at the time of the—and I know it’s in the
                  record, at the time of the incident, as well as competent
                  to stand trial here today. Both sides concur with that?
         TC:      Yes, your honor. Mental health issues versus . . . .
         MJ:      Correct.
         TC:      . . . . [M]ental disease or defect, according to the law.
         CDC: Exactly. The two can co-exist.11
                                     II. DISCUSSION
    We review a military judge’s decision to accept or reject a guilty plea for
an abuse of discretion. United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F.
1996). A decision to accept a guilty plea will be set aside only where the
record of trial shows a substantial basis in law or fact for questioning the
plea. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). If evidence
inconsistent with the plea is presented at any time during the proceeding,
“the military judge must either resolve the apparent inconsistency or reject
the plea.” United States v. Garcia, 44 M.J. 496, 498 (C.A.A.F. 1996) (citations
omitted). “The existence of an apparent and complete defense is necessarily
inconsistent” with a guilty plea. United States v. Shaw, 64 M.J. 460, 462
(C.A.A.F. 2007). The “mere possibility” of a conflict between the plea and the
appellant’s statements or other evidence of record is not a sufficient basis to
overturn the trial results. Id. (quoting United States v. Prater, 32 M.J. 433,
436 (C.M.A. 1991)).
   The appellant contends that the military judge failed to conduct an
adequate providence inquiry to resolve a possible affirmative defense based
on a lack of mental responsibility. Further, the appellant argues that there
was “sufficient evidence” about the appellant’s mental health “that should
have alerted the military judge to make a deeper inquiry into [the
appellant’s] mental state at the time of the offenses charged.”12 We disagree
that it was an abuse of discretion to not do so.



   11   Id. at 129.
   12 Appellant’s     Brief at 14.

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                     United States v. Olson, No. 201600025


   We first note that “the military judge may reasonably rely on both a
presumption that the accused is sane and the long-standing principle that
counsel is presumed to be competent.” Shaw, 64 M.J. at 463 (citing United
States v. Cronic, 466 U.S. 648, 658 (1984); United States v. Scott, 24 M.J. 186,
188 (C.M.A. 1987)). Therefore, when he conducted his inquiry pursuant to
United States v. Care, 40 C.M.R. 247 (C.M.A. 1969), the military judge could
“properly presume . . . that counsel ha[d] conducted a reasonable
investigation into the existence of the defense” of “lack of mental
responsibility.” Shaw, 64 M.J. at 463. Moreover, the military judge was
aware of the results of both the April 2014 and December 2014 R.C.M. 706
boards. Both examinations determined that, at the time of the misconduct,
the appellant was not suffering from a mental disease or defect and could
appreciate the nature, quality, and wrongfulness of his actions.
    In United States v. Miranda, No. 201100084, 2011 CCA LEXIS 502,
unpublished op. (N-M. Ct. Crim. App. 6 Sep 2011) (per curiam), aff’d, 71 M.J.
102 (C.A.A.F. 2012), we concluded that a military judge did not abuse his
discretion in accepting a guilty plea despite references to post-traumatic
stress disorder, adjustment disorder, and bipolar disorder in the appellant’s
unsworn statement. Although the military judge in Miranda did not
expressly inquire into the “appellant’s history of mental illness or its relation
to the appellant’s offenses,” the military judge was aware of the existence and
results of an R.C.M. 706 evaluation that concluded the appellant was
mentally responsible for his conduct, id. at *2-4, and thus “was entitled to
conclude that the appellant was mentally responsible and had discussed any
mental responsibility defenses with his counsel.” Id. at *6. The case at bar is
strikingly similar.
    Here, there was simply no conflicting or inconsistent medical evidence
which the military judge was required to resolve. There was also no
testimony or evidence presented during the Care inquiry or in presentencing
that called into question the appellant’s mental responsibility at the time of
the charged offenses, or that contradicted the conclusions of the various
mental health professionals who examined the appellant. Rather, the
appellant testified consistently with what one would expect from someone
who could appreciate “the nature and quality, or the wrongfulness of his
conduct”—that he consciously unlawfully entered L.R.’s home, taking care
not to leave fingerprints; inappropriately touched L.R. and exposed himself to
her in order to satisfy his sexual desires; and then fled before being caught.13
During a colloquy with the military judge regarding his level of intoxication
as it related to his ability to form the specific intent to gratify his sexual


   13   DE A at 2.

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                        United States v. Olson, No. 201600025


desire, the appellant acknowledged that he was “aware of what [he was]
doing at the time that [he] did it[.]”14
    The uncontroverted conclusion of two separate R.C.M 706 boards that the
appellant was mentally responsible at the time of his charged misconduct,
along with the absence of any evidence contradicting those findings,
convinces us that the military judge did not abuse his discretion and that the
appellant has failed to establish a substantial basis in law or fact to question
his pleas. Put simply, “[t]he military judge is not required ‘to embark on a
mindless fishing expedition to ferret out or negate all possible defenses or
potential inconsistencies.’” Miranda, 2011 CCA LEXIS 502 at *8 (quoting
United States v. Jackson, 23 M.J. 650, 652 (N.M.C.M.R. 1986)).
    Finally, the appellant notes that the military judge also did not inquire
into the appellant’s “capacity to understand the nature of the proceedings
against him or to conduct or cooperate intelligently in his own defense[.]”15
However, he provides no argument in support of the contention that there
was any need for the military judge to do so. Indeed, the whole of the
appellant’s brief focuses on the appellant’s mental competency at the time of
the charged misconduct and the potential for an affirmative defense.
Regardless, we find any suggestion that the military judge abused his
discretion by accepting the appellant’s pleas without first ascertaining the
appellant’s mental competency to stand trial, to be meritless. Armed with the
affidavit from the Federal Medical Center’s Warden denoting the restoration
of appellant’s competency, as well as the assurances of both the appellant 16
and trial defense counsel that the appellant was “competent to stand trial
here today,”17 the military judge had no reason to believe that any mental
condition precluded a provident guilty plea. Nor did the appellant's conduct
during the Care inquiry or in presentencing, raise concerns that might have
suggested to the military judge that the appellant lacked the capacity to
plead or understand the terms of his PTA.



   14   Record at 79.
   15   Appellant’s Brief at 3.
   16   Record at 65.
          “MJ: Okay. And do you agree you’re not on any sort of medication right now?
           ACC: I’m on Tylenol, Your Honor.
           MJ: Tylenol? But are you completely coherent and able to appreciate
           everything that’s going on in court here today?
           ACC: Yes, Your Honor.”
   17   Id. at 129.

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               United States v. Olson, No. 201600025


                    III. CONCLUSION
The findings and the sentence as approved by the CA are affirmed.
Senior Judge CAMPBELL and Judge FULTON concur.
                                  For the Court



                                  R.H. TROIDL
                                  Clerk of Court




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