     United States Navy–Marine Corps
         Court of Criminal Appeals
                     _________________________

                       UNITED STATES
                          Appellee

                                 v.

                     Johnnie C. PRATER
                   Airman (E-3), U.S. Navy
                           Appellant
                    _________________________

                         No. 201800065
                     _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary.
Military Judges: Captain Franklin J. Foil, JAGC, USN (arraignment);
           Commander Stephen Reyes, JAGC, USN (trial).
   Sentence Adjudged: 27 October 2017 by a general court-martial
 convened at Region Legal Service Office, Fleet Activities Yokosuka,
         Japan, consisting of officer and enlisted members.
Approved Sentence: 3 years’ confinement, reduction to paygrade E-1,
      forfeiture of all pay and allowances for 36 months, and
                      a dishonorable discharge.
                     _________________________

                      Decided: 7 January 2019
                     _________________________

       For Appellant: Captain Andrew R. House, JAGC, USN.
      For Appellee: Lieutenant George R. Lewis, JAGC, USN.
                     _________________________

      This opinion does not serve as binding precedent,
       but may be cited as persuasive authority under
        NMCCA Rule of Practice and Procedure 30.2.
                      United States v. Prater, No. 201800065


                          _________________________

             Before FULTON, CRISFIELD, and HITESMAN,
                       Appellate Military Judges.
                      _________________________

CRISFIELD, Judge:
    A general court-martial consisting of officer and enlisted members con-
victed the appellant, contrary to his pleas, of one specification of making a
false official statement in violation of Article 107, Uniform Code of Military
Justice (UCMJ), one specification of sexual assault in violation of Article
120(b)(1)(B), and one specification of abusive sexual contact in violation of
Article 120(d), 10 U.S.C. §§ 907 and 920 (2012). 1 The members sentenced the
appellant to 3 years’ confinement, reduction to paygrade E-1, forfeiture of all
pay and allowances for 36 months, and a dishonorable discharge. The conven-
ing authority (CA) approved the sentence and, with the exception of the puni-
tive discharge, ordered it executed.
   The appellant raises two assignments of error (AOEs): (1) whether he was
denied effective assistance of counsel by his trial defense counsel (TDC),
LT AZ; and (2) whether the promulgating order complies with RULE FOR
COURTS-MARTIAL (R.C.M.) 1114(c), MANUAL FOR COURTS-MARTIAL, UNITED
STATES (MCM) (2016 ed.) because it includes an errant finding unrelated to
any charge or specification.
    We find that the promulgating order contains an erroneous finding, and
we order corrective action in our decretal paragraph. After taking this correc-
tive action, we are convinced that the findings and sentence are correct in law
and fact and find no error materially prejudicial to the substantial rights of
the appellant. Arts. 59(a) and 66(c), UCMJ.

                                 I. BACKGROUND

    The appellant and victim, Aviation Ordnanceman Airman (AOAN) VG,
were acquaintances at their advanced technical training school (“A” school) in
Pensacola, Florida. Following “A” school they were assigned to different avia-
tion squadrons based at Naval Air Facility (NAF) Atsugi, Japan.




   1 Appellant was acquitted of another specification of sexual assault against a dif-
ferent victim arising from an incident in April 2017.



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                        United States v. Prater, No. 201800065


   AOAN VG arrived in Atsugi in late June 2016. She flew on board the USS
RONALD REAGAN (CVN 76) about two weeks later to join her embarked
squadron. While aboard the aircraft carrier, AOAN VG ran into the appel-
lant, who was assigned to a different squadron. On the ship the two consen-
sually kissed and talked several times about “hooking up.” 2 Both returned to
NAF Atsugi at the end of July.
    On 7 August 2016, AOAN VG texted the appellant and asked if he would
like to go swimming. He did not respond until about 2215 that night when he
invited her to come to his barracks room to hang out. She said she was tired
and had to work the next day, but the appellant was persistent and asked her
to meet him so they could briefly talk. She agreed to meet him and went to
his room.
    After a short conversation AOAN VG decided to leave the appellant’s
room and walked out into the passageway. He followed her into the passage-
way and convinced her to return to his room. Back inside his room the appel-
lant kissed AOAN VG repeatedly and she said, “No, we’re not doing this to-
night, I’m tired.” 3 The appellant did not stop his advances and AOAN VG told
him no again. The appellant then lifted AOAN VG onto his bed and kissed
her again. When AOAN VG turned her head to avoid his kisses, the appellant
kissed her forcefully on her neck, leaving hickeys. The appellant removed his
pants and AOAN VG again said “No, I don’t want this.” 4 She tried to push
him off but appellant removed her underwear from under her dress and in-
serted his penis in her vagina. While he was inside her, AOAN VG said “this
is painful, this hurts, please stop.” 5 He did not. Eventually, she was able to
escape his grasp and get off the bed. She pulled her dress down, grabbed her
underwear and wallet, and left the appellant’s room.
    AOAN VG went back to her barracks room, stripped off her clothes, and
sat on the floor of her shower crying until her roommate and a friend inter-
vened to find out what was wrong. AOAN VG informed them that she had
been raped by the appellant. The appellant and AOAN VG exchanged text
messages later that night in which the appellant expressed surprise that
AOAN VG acted the way she did and AOAN VG stated that she had not con-
sented to the sexual intercourse.




   2   Record at 478.
   3   Record at 465.
   4   Record at 465.
   5   Record at 468.



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                        United States v. Prater, No. 201800065


    The next day AOAN VG went to the base medical clinic to get a sexual as-
sault forensic examination (SAFE). When filling out the “non-assault related
history” section of the SAFE form, AOAN VG indicated that she engaged in
sexual intercourse on 5 August 2016, two days before the appellant assaulted
her. Subsequent DNA analysis of samples taken from AOAN VG revealed the
presence of DNA from AOAN VG, the appellant, and an unknown male con-
tributor.
    At trial the government did not use the DNA evidence from AOAN VG
against the appellant, but it called a DNA expert to testify about the results
of the forensic testing of the second alleged victim. The appellant was
charged with sexually assaulting this victim in April 2017. The government
did not question the DNA expert about DNA results from AOAN VG. Howev-
er, on cross-examination from the trial defense counsel, LT AZ, the DNA ex-
pert was asked whether she communicated with the investigating agent, Na-
val Criminal Investigative Service (NCIS) Special Agent (SA) Mark Garhart,
about the DNA testing for AOAN VG. In answering the question, the DNA
expert stated that AOAN VG had indicated on her SAFE form that she had
sex two days before the sexual assault. Government counsel immediately ob-
jected to the testimony on MILITARY RULE OF EVIDENCE (MIL. R. EVID.)
412(a), MCM, grounds and the court-martial went into a closed session with-
out the members. In the closed session the military judge asked LT AZ if she
intended to delve into AOAN VG’s prior sexual activity. LT AZ indicated that
she had not intended to elicit that answer. 6 The DNA expert had simply pro-
vided more information than she was asked. LT AZ stated that she wanted to
get information about the DNA expert’s communications with SA Garhart in
order to show that SA Garhart lied in his testimony. The members were
brought back and instructed to disregard the witness’s statement about
AOAN VG’s prior sexual activity. 7 No other information about AOAN VG’s
prior sexual activity was presented.
    The appellant’s trial strategy was to attack the credibility of SA Garhart.
SA Garhart was the lead investigative agent for both the sexual assault alle-
gation involving AOAN VG in August 2016 and the unrelated sexual assault
allegation of which the appellant was acquitted. The appellant wanted to
show that SA Garhart was biased against the appellant and manipulated the
written statements of the two victims, as well as other witnesses. 8



   6   Record at 817-818.
   7   Record at 821.
   8   See, e.g., Record at 483-484 and 994.



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                    United States v. Prater, No. 201800065


    LT AZ did not present any evidence regarding AOAN VG’s sexual activity
from two days before the assault. The record contains no further detail about
this sexual activity, its circumstances, or the identity of AOAN VG’s prior
sexual partner. The appellant now claims that LT AZ was ineffective because
she failed to present this evidence. The appellant claims the evidence would
have shown AOAN VG had a motive to fabricate her allegation of sexual as-
sault. Additional facts necessary to the resolution of the assignments of error
are included below.

                              II. DISCUSSION

A. Ineffective assistance of counsel
    The appellant avers that he was denied effective assistance of counsel be-
cause his TDC failed to present evidence of AOAN VG’s motive to fabricate at
trial. We disagree. We review claims of ineffective assistance of counsel de
novo. United States v. Harpole, 77 M.J. 231, 236 (C.A.A.F. 2018). The Sixth
Amendment entitles criminal defendants to representation that does not fall
“below an objective standard of reasonableness” in light of “prevailing profes-
sional norms.” Strickland v. Washington, 466 U.S. 668, 688 (1984). In order to
prevail on a claim of ineffective assistance of counsel, an appellant must
demonstrate both (1) that his counsel’s performance was deficient, and (2)
that this deficiency resulted in prejudice. Id. at 687.
    With respect to Strickland’s first prong, counsel are presumed to be com-
petent and our inquiry into an attorney’s representation is “highly deferen-
tial” to that attorney. Id. at 689. We employ “a strong presumption that coun-
sel’s conduct falls within the wide range of reasonable professional assis-
tance.” Id. The appellant has the heavy burden of establishing a factual foun-
dation for a claim of ineffective representation. United States v. Grigoruk, 52
M.J. 312, 315 (C.A.A.F. 2000). We will not second-guess strategic or tactical
decisions made by the trial defense counsel unless the appellant can show
specific defects in counsel’s performance that were unreasonable under pre-
vailing professional norms. United States v. Mazza, 67 M.J. 470, 475
(C.A.A.F. 2009). Furthermore, we will not compel a defense counsel to justify
decisions made at trial until we review the allegations of ineffectiveness and
the government response, examine the record, and determine that the allega-
tion and record contain evidence which, if unrebutted, would overcome the
presumption of competence. Grigoruk, 52 M.J. at 315.
   In order to show prejudice under Strickland’s second prong, the appellant
“must show that there is a reasonable probability that, but for counsel’s un-
professional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Strickland, 466 U.S. at 694. “Moreover, a verdict or conclusion

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                    United States v. Prater, No. 201800065


only weakly supported by the record is more likely to have been affected by
errors than one with overwhelming record support.” Id. at 696.
   We apply a three-part test to determine whether the presumption of com-
petence has been overcome:
       1. Are appellant’s allegations true; if so, “is there a reasonable
       explanation for counsel’s actions”?
       2. If the allegations are true, did defense counsel’s level of ad-
       vocacy “fall measurably below the performance . . . [ordinarily
       expected] of fallible lawyers”?
       3. If defense counsel was ineffective, is there “a reasonable
       probability that, absent the errors,” there would have been a
       different result?
United States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011) (quoting United
States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991)) (alterations in original). The
first two prongs of the Gooch test concern the deficiencies in the TDC’s per-
formance, while the third prong looks at the impact of the TDC’s errors on
the outcome of the trial.

B. Deficient Performance

   1. The appellant’s failure to meet his burden
    Applying the first prong of the Gooch test, the appellant has failed to pre-
sent any evidence that AOAN VG had a preexisting romantic relationship
that would be harmed if it became known that AOAN VG had consensual sex
with the appellant. The record is devoid of evidence in this regard other than
the notation on the SAFE form that shows AOAN VG had sex with someone
other than the appellant two days before the assault. There is nothing in the
record to indicate whether AOAN VG’s prior sex partner was a steady, long-
term boyfriend, a casual non-exclusive sexual partner, or a one-night stand.
The mere fact that the victim engaged in sexual intercourse with someone
other than the appellant two days prior to the sexual assault is not, by itself,
evidence of the victim’s motive to fabricate her prior statements or testimony
at trial.
    Evidence that the victim had sexual intercourse with another individual
two days prior to her encounter with the appellant is inadmissible at trial un-
less it meets one of three specific exceptions. MIL. R. EVID. 412(a). The appel-
lant now avers that this evidence would have been admissible under the third
exception, which “permits the admission of ‘evidence the exclusion of which
would violate the constitutional rights of the accused.’” United States v. Gad-
dis, 70 M.J. 248, 252 (C.A.A.F. 2011) (quoting MIL. R. EVID. 412(b)(1)(C) (oth-


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                    United States v. Prater, No. 201800065


er quotation marks omitted). We find that this evidence, alone, is not admis-
sible under MIL. R. EVID. 412(b)(1)(C).
    The Court of Appeals for the Armed Forces has recognized that an indi-
vidual’s interest in protecting an established relationship can provide a mo-
tive for that individual to lie about the consensual nature of a sexual encoun-
ter. United States v. Smith, 68 M.J. 445, 448-49 (C.A.A.F. 2010); See also
United States v. Sanchez, 44 M.J. 174, 179 (C.A.A.F. 1996). However, even if
the appellant could show there was evidence of a preexisting romantic rela-
tionship, the appellant would still need to present additional facts demon-
strating that infidelity might lead to some harm that AOAN VG would like to
avoid. See generally United States v. Ellerbrock, 70 M.J. 314, 319-20 (C.A.A.F
2011); United States v. Key, 71 M.J. 566, 571 (N-M. Ct. Crim. App. 2012), rev.
denied 71 M.J. 452 (C.A.A.F. 2012); United States v. Alston, 75 M.J. 875, 881-
82 (A. Ct. Crim. App. 2016), rev. denied 76 M.J. 130 (C.A.A.F. 2017). The ap-
pellant bears the burden to produce such evidence, United States v. Moulton,
47 M.J. 227, 229 (C.A.A.F. 1997), and the record contains none. Without such
evidence there is no basis for us to find that the appellant’s allegation has
merit. The first prong of the Gooch test has therefore not been met.

   2. Trial defense counsel’s advocacy did not fall below the performance ex-
pected of counsel.
    In addressing the second prong of the Gooch test, we assume arguendo,
that there was evidence that AOAN VG had a motive to fabricate her allega-
tion because she did not want the person she had sex with two days earlier to
know that she had consensual sexual intercourse with the appellant. We still
need to find that LT AZ’s advocacy fell measurably below the performance
expected of counsel before we could hold that the appellant received ineffec-
tive assistance of counsel.
    Strategic and tactical decisions made by counsel will not generally be sec-
ond-guessed on appeal. Mazza, 67 M.J. at 475. Where an appellant attacks
the trial strategy or tactics of the TDC, the appellant must show specific de-
fects in counsel’s performance that were “unreasonable under prevailing pro-
fessional norms.” Id. (quoting United States v. Perez, 64 M.J. 239, 243
(C.A.A.F. 2006)).
    LT AZ focused her defense of the appellant on attacking the credibility of
NCIS SA Garhart. Other than the appellant, SA Garhart was the only com-
mon link between the two charged sexual assaults. The two incidents were
circumstantially different, involved unrelated victims, and were separated in
time by ten months. It was reasonable for LT AZ to conclude that as the criti-
cal link between the two incidents and victims, SA Garhart was the center of
gravity at which she should direct the defense’s energy. Attacking AOAN


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                        United States v. Prater, No. 201800065


VG’s credibility with a possible motive to lie would not necessarily have been
inconsistent with this strategy, but it would not have helped the appellant
defend against the specification regarding the second alleged victim. The
strategy also allowed the defense to treat the alleged victims with kid gloves
and avoid an all-out attack on them by focusing the defense’s attack on the
NCIS special agent. This was a rational defense strategy: destroying SA Gar-
hart’s credibility could potentially have cast reasonable doubt on the accuracy
of both alleged victims’ statements without the risk of alienating the mem-
bers.
    Although the appellant characterizes his alternative trial strategy as “de-
fense counsel 101,” 9 even if the military judge had allowed the TDC to ask
AOAN VG about her sexual partner two days prior to her interaction with
the appellant, absent further evidence, there is nothing to indicate a reason-
able member would find AOAN VG had a motive to lie about being sexually
assaulted by the appellant. The mere fact that she disclosed this prior sexual
contact to the SAFE examiner demonstrates she was candid about the en-
counter. It is also possible that a reasonable member would find her less like-
ly to consent to sex with the appellant if she was in a preexisting romantic
relationship. In any event we need not speculate about whether LT AZ se-
lected the best possible litigation strategy for her representation of the appel-
lant. “We do not look at the success of a criminal defense attorney’s trial the-
ory, but rather whether counsel make an objectively reasonable choice in
strategy from the alternatives available at the time.” United States v.
Dewrell, 55 M.J. 131, 136 (C.A.A.F. 2001) (citations omitted). We find she had
a reasonable strategy and her tactical performance was at or above the level
ordinarily expected of fallible lawyers. The second prong of the Gooch test has
therefore also not been met.

C. Prejudice
    Assuming arguendo that LT AZ was ineffective for failing to present evi-
dence of a preexisting relationship, we test for prejudice. That is, is there a
“reasonable probability that, absent the errors,” there would have been a dif-
ferent result. Polk, 32 M.J. at 153 (citations omitted).
    The government’s case against appellant with regard to the sexual as-
sault of AOAN VG was very strong. AOAN VG testified that she told the ap-
pellant “no” multiple times and the appellant even admitted to SA Garhart
that he heard AOAN VG say “no” prior to having sex with her. AOAN VG re-




   9   Appellant’s Brief at 11.



                                          8
                    United States v. Prater, No. 201800065


ported the assault soon after the incident and her account remained con-
sistent throughout the investigation and trial. Witnesses testified consistent-
ly as to her distraught emotional condition immediately following the assault.
   Even assuming that LT AZ was deficient in failing to present evidence of
AOAN VG’s existing romantic relationship, we do not find that such evidence
would have changed the result of the court-martial. The third prong of the
Gooch test has therefore also not been met.
    Based on our review of the record and the above analysis, we conclude
that the appellant was afforded effective assistance of counsel as guaranteed
by the Sixth Amendment.

D. Error in the Promulgating Order
    The promulgating order erroneously lists a plea and finding of “Not
Guilty” underneath the accurate listing of a plea of “Not Guilty” and a finding
of “Guilty” for Specification 2 under Charge II.
    An appellant is entitled to an official record accurately reflecting the re-
sults of his proceedings. United States v. Crumpley, 49 M.J. 538, 539 (N-M.
Ct. Crim. App. 1998). We test error in court-martial orders under a harmless-
error standard. Id.
    A court-martial promulgating order must contain the following infor-
mation: (1) the type of court-martial and the convening command; (2) a sum-
mary of all charges and specifications on which the appellant was arraigned;
(3) the appellant’s pleas; (4) the findings or disposition of all charges and
specifications on which the appellant was arraigned; (5) if adjudged, the sen-
tence; and (6) a summary of the action taken by the CA in the case. R.C.M.
1114(c)(1).
   The erroneous insertion of a spurious plea and finding was clear error;
however, the error was harmless as it did not materially prejudice the appel-
lant’s substantial rights. To ensure the appellant has an official record which
accurately reflects his proceedings, we order that the supplemental promul-
gating order reflect the correct information.

E. Military Judge’s Failure to Authenticate His Portion of the Record
of Trial
    Although not raised as an error by appellant, we note that the military
judge who presided over appellant’s arraignment failed to authenticate the
record of trial for his portion of the trial. There is no explanation for why he
did not do so. A different military judge presided over the motions, trial, and
sentencing proceedings and properly authenticated his portion of the record
of trial.



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                    United States v. Prater, No. 201800065


   Whether a record of trial is complete and substantially verbatim is a
question of law we review de novo. United States v. Henry, 53 M.J. 108, 110
(C.A.A.F. 2000). RULE FOR COURTS-MARTIAL 1104(a)(2)(A) provides in part,
that “[i]f more than one military judge presided over the proceedings, each
military judge shall authenticate the record of the proceedings over which
that military judge presided. . . .” Here, with the exception of the arraignment
that made up the first 14 pages of the record, the entire record of trial has
been authenticated. The failure to authenticate the arraignment proceedings
constituted error under R.C.M. 1104(a)(2)(A). See United States v. Robinson,
24 M.J. 649, 654 (N.M.C.M.R. 1987). However, absent a specific finding of
prejudice to the appellant, the error is harmless and does not preclude this
court from conducting meaningful review of the appellant’s case under Article
59(a), UCMJ. See United States v. Merz, 50 M.J. 850, 854 (N-M. Ct. Crim.
App. 1999).
   In this case the appellant has alleged no prejudice from the error and we
can find none. Therefore, no relief is warranted.

                              III. CONCLUSION

    The findings and sentence as approved by the convening authority are af-
firmed. The supplemental court-martial order will reflect that the appellant
plead “Not Guilty” and was found “Guilty” of Specification 2 under Charge II.
Senior Judge FULTON and Judge HITESMAN concur.


                                    FOR THE COURT:




                                    RODGER A. DREW, JR.
                                    Clerk of Court




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