UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
SALUSSOLIA, FLEMING, and WALKER
Appellate Military Judges

UNITED STATES, Appellee
Vv.
Chief Warrant Officer Three CASEY B. ROBERTS
United States Army, Appellant

ARMY 20150023

Headquarters, 25th Infantry Division
Gregory A. Gross, Military Judge
Colonel Mark A. Bridges, Staff Judge Advocate

For Appellant: Captain Benjamin J. Wetherell, JA; Brian Pristera, Esquire (on
brief); Captain Zachary Gray, JA; Brian Pristera, Esquire (on reply brief).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Major Virginia Tinsley, JA; Captain Brian Jones, JA (on brief).

11 December 2019

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

FLEMING, Judge

We find appellant’s trial defense counsel were not ineffective for failing to
file a motion to compel the appointment of an expert consultant, and even if counsel
were ineffective, their performance did not prejudice appellant. The case’s lengthy
procedural history follows.

Appellant’s first court-martial, United States v. Roberts, Army 20140732,
ended in mistrial [Roberts I]. Subsequently, a general court-martial composed of
officers convicted appellant, contrary to his pleas, of sexual assault and indecent
visual recording in violation of Articles 120 and 120c, UCMJ and sentenced
appellant to a dismissal, confinement for three years, forfeiture of all pay and
allowances, and a reprimand [Roberts II]. The convening authority suspended the
adjudged forfeitures and waived the automatic forfeitures for a period of six months,
but otherwise approved the sentence as adjudged.
ROBERTS—ARMY 20150023

Appellant initially raised three assignments of error, all of which, at least in
part, were premised on the lack of completeness of the Roberts II Record of Trial
(ROT) because the Roberts I ROT was not attached. Because it appeared the
convening authority did not review the Roberts I ROT prior to taking action on
Roberts II, we set aside the action and returned the case for a new staff judge
advocate recommendation (SJAR) and convening authority action (Action) with
“direction that before [issuing] any new SJAR and action,” the Roberts I ROT must
be attached to the Roberts II ROT. United States v. Roberts, ARMY 20150023, 2017
CCA LEXIS 442 (Army Ct. Crim. App. 30 June 2017) (summ. disp.).

In January 2018, a new SJAR and Action were issued and the case was
returned to this court. After noting the government only attached a summarized
transcript of Roberts I to the Roberts II ROT, we ordered the government to provide
a verbatim transcript of Roberts I. United States v. Roberts, ARMY 20150023
(Army Ct. Crim. App. 11 April 2018) (Order). The government was unable to do so.

Based on the government’s failure to provide a Roberts I verbatim transcript,
we held that the Roberts II ROT was also not verbatim. United States v. Roberts,
ARMY 20150023, 2018 CCA LEXIS 437 (Army Ct. Crim. App. 7 June 2018)
(memorandum opinion). We then set aside the SJAR and action issued in January
2018 and returned the case to the convening authority “to either (1) take a new
action approving only such much of the sentence that could be adjudged by a special
court-martial under R.C.M. 1103(f)(1); or (2) direct a rehearing under R.C.M.
1103(f)(2).” Jd. at *12.

In November 2018, the convening authority again took Action, electing our
first proposed option, and approved only so much of the sentence as “extending to a
reprimand, forfeiture of $3483 [dollars] pay per month for six months, and
confinement for six months.”!

Appellant’s case is again pending review before this court pursuant to Article
66, UMCJ. Appellant now raises a single assignment of error, which merits
discussion, but no relief.

BACKGROUND

Appellant was convicted of sexually assaulting SB at his house in the early
morning hours by penetrating her vagina with his penis while she was asleep,
unconscious, or otherwise unaware, and wrongfully photographing her private area
without her consent. For several years prior to the offenses, appellant and his wife

 

''The Action also affirmed any prior deferral or waiver actions taken on any
adjudged or automatic forfeitures. Appellant was also credited with his served
confinement since the imposition date of his initial sentence.
ROBERTS—ARMY 20150023

were extremely close friends with SB and her husband, Chief Warrant Officer Three
(CW3) AB.

The evening prior to the offenses the four friends attended a hail-and-farewell
ceremony at arestaurant. Appellant and CW3 AB drank alcohol. After the
ceremony, the two men went to a nearby bar to continue to socialize and consume
alcohol. After the ceremony, appellant’s wife and SB separated from their spouses
and decided to obtain matching feather tattoos at a tattoo parlor. The two women
did not consume alcohol at the restaurant or during the entirety of the events
surrounding the offenses.

Between approximately 2200 and 2300 hours, appellant and CW3 AB left the
bar. Chief Warrant Officer Three AB drove appellant home and then drove home
himself. After arriving home, appellant fell asleep on his first floor couch. At
approximately 0200 hours, appellant’s wife and SB arrived at the Roberts’ house.
Appellant remained on the first floor couch. The two women decided to go upstairs
to the second floor to sleep in the bed in the master bedroom.

Prior to leaving her house for the evening, SB had not planned to sleep at the
Roberts’ house. SB, who had a prescription for Xanax, was concerned she could not
sleep without her medication.” Appellant’s wife, who also had a Xanax
prescription, gave SB a .5 milligram dosage Xanax pill. Both women took a Xanax
pill, talked for a few minutes, and fell asleep in the bed in the master bedroom.

SB testified her next memory was waking up on the first floor couch to
appellant penetrating her vagina. SB stated she was lying on the couch on her back,
naked from the waist down. She immediately saw appellant on top of her, said his
name, and pushed him away. Appellant told SB that “I thought you were [my wife],
and kept repeating that she, SB, had walked downstairs.” Appellant helped SB put
on her clothes and walked her back upstairs to the master bedroom. SB testified she
felt disoriented, tired, and fell back to sleep in the bed in the master bedroom. After
waking at approximately 0800 hours, SB departed the house without discussing the
incident with appellant or his wife. Later that day, SB told her husband that she
awoke to appellant penetrating her vagina without her consent.

 

2 Xanax is “a trademark for a preparation of the drug alprazolam,” a benzodiazepine
used as a tranquilizer. Dorland’s Illustrated Medical Dictionary 1857, 53 (Elizabeth
J. Taylor ed., W.B. Saunders Company 1988) (1900) (Dorland’s Medical
Dictionary). Alprazolam “has the same general properties as diazepam,” a sedative,
“also used as a skeletal muscle relaxant, to produce anesthesia, as an anticonvulsant,
and in the management of alcohol withdrawal symptoms and delirium tremens.”
Dorland’s Medical Dictionary 53, 466.
ROBERTS—ARMY 20150023

The next day, a series of text messages commenced between appellant and
CW3 AB regarding the incident. Appellant initially stated he did not know how SB
came to be on the couch but thought SB was his wife. When pressed for the truth by
CW3 AB, appellant stated, “TRUTH! I WOKE UP TO HER!” Appellant implored
CW3 AB, “I beg you. I understand something fucked up happened and im [sic] not
shirking some of the responsibility, but if anyone else finds out I’m sure ill [sic] go
to jail until this gets sorted out.” During a subsequent telephone conversation, CW3
AB testified that appellant admitted to going upstairs to get SB from the bedroom.
Appellant claimed he thought he was retrieving his wife, not SB.3

Approximately a week later, SB reported to Criminal Investigation Command
(CID) that she awoke to appellant penetrating her vagina without her consent.
During the CID investigation, special agents seized appellant’s cellphone. A CID
digital forensic examiner (DFE) located, in the unallocated space of a secure digital
card from appellant’s cellphone, three deleted sexually explicit photographs of SB
on appellant’s couch. The photographs depicted SB with her eyes closed, nude from
the waist down, tee-shirt pulled up, and her breasts and genitilia fully exposed.

During the pre-trial phase of Roberts I, appellant requested the convening
authority appoint the defense with an expert consultant in “forensic toxicology.”
The convening authority denied the request. Defense counsel then filed a motion to
compel the appointment of the expert consultant. On appeal, as stated in the
government’s brief, “there is nothing in either the [Roberts | ROT] or the current
record [in Roberts II] that indicates [whether] the military judge ruled on the defense
motion.”* The defense did not file a motion for an expert consultant in forensic
toxicology in Roberts II.

 

3 A two to three inch height difference and ten to fifteen pound weight difference
existed between SB and appellant’s wife.

4 We pause to note an affidavit from appellant’s trial defense counsel, attached for
our consideration during the appellate phase pursuant to government request,
asserted the military judge denied the defense motion to compel an expert consultant
in Roberts I. We agree with the government that there is no documentation of the
military judge’s alleged denial in the Roberts I or II ROTs. As discussed in-depth in
our previous memorandum opinion, the Roberts I ROT was lacking numerous
required items, to include: motions, witnesses’ testimony, counsels’ argument, and
rulings. See United States v. Roberts, ARMY 20150023, 2018 CCA LEXIS 437
(Army Ct. Crim. App. 7 June 2018) (memorandum opinion). We need not determine,
however, if the military judge denied the defense motion in Roberts I because it does
not impact our analysis of appellant’s trial defense counsel’s performance in Roberts
I.
ROBERTS—ARMY 20150023

Having finally addressed the multiple errors regarding the completeness of
appellant’s ROT in our prior issuance of a summary disposition, an order, and a
memorandum opinion, the only assignment of error now alleged by appellant is that
his defense counsel were ineffective for failing to file a motion to compel an expert
consultant in “psychiatry” or “toxicology” in Roberts II.

LAW AND ANALYSIS

The Sixth Amendment guarantees an accused the right to the effective
assistance of counsel. United States v. Gooch, 69 M.J. 353, 361 (C.A.A.F. 2011)
(citing United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001)). To establish that
his counsel was ineffective, appellant must satisfy the two-part test, “both (1) that
his counsel’s performance was deficient, and (2) that this deficiency resulted in
prejudice.” United States v. Green, 68 M.J. 360, 361-62 (C.A.A.F. 2010) (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)). We review both prongs of the
Strickland test de novo. United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009)
(citing United States v. Anderson, 55 M.J. 198, 201 (C.A.A.F. 2001) and United
States v. Wiley, 47 M.J. 158, 159 (C.A.A.F. 1997)). In evaluating the first
Strickland prong, there is “a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689.
“We also are constrained by the principle that strategic choices made by trial
defense counsel are ‘virtually unchallengeable’ after thorough investigation of the
law and the facts relevant to the plausible options.” United States v. Akbar, 74 M.J.
364, 371 (C.A.A.F. 2015) (citing Strickland, 466 U.S. at 690-91).

Appellant asserts his defense counsel were ineffective for failing to file a
motion to compel an expert consultant because “there was no expert testimony
regarding forensic psychiatry [and] the possible effects of Xanax, [such] as blacking
out, passing out and sleep walking.” After reviewing the entire ROT and affidavits
submitted by appellant’s trial defense counsel, we find appellant’s trial defense

 

> Blackouts are “periods for which a person is unable to remember critical elements
of events, or even entire events, that occurred while he or she was intoxicated.”
Aaron M. White, What Happened? Alcohol, Memory Blackouts, and the Brain, 27
ALCOHOL RES. & HEALTH No. 2, 186, 188 (2003). “Blackouts represent episodes of
amnesia, during which subjects are capable of participating even in salient,
emotionally charged events—as well as more mundane events—that they later cannot
remember (Goodwin 1995).” Jd. People experiencing a blackout are “able to keep
information active in short-term memory for at least a few seconds. As a result, they
can often carry on conversations, drive automobiles, and engage in other
complicated behaviors. Information pertaining to these events is simply not
transferred into long-term storage,” such that blacked out people may “not remember
what they said or did 5 minutes earlier.” Id.

 
ROBERTS—ARMY 20150023

counsel’s conduct and strategic choices fell within the wide range of reasonable
professional assistance.

First, we pause to clarify the difference between an expert consultant and an
expert witness. Although an expert consultant frequently morphs into an expert
witness at trial, like a caterpillar into a butterfly, those are separate roles controlled
by distinct rules and legal tests. See Rule for Courts-Martial 703; Military Rule of
Evidence 702; United States v. Gonzalez, 39 M.J. 459, 461 (C.M.A. 1994)
(providing a three-prong standard to demonstrate the necessity of an expert
consultant); United States v. Houser, 36 M.J. 392 (C.M.A. 1993) (articulating six
factors for determining admissibility of expert testimony). Despite appellant
blurring the distinction between an expert consultant and witness and a toxicologist
and psychiatrist, we will nevertheless address the underlying substance of
appellant’s alleged error — that his counsel failed to present evidence to support a
theory that SB’s Xanax usage “could have caused [her] to blackout, walk down the
stairs, initiate a sexual encounter, and then come out of the blackout and be confused
as to why she [was] involved in a sexual encounter.”

It is important to recognize that a qualified expert may testify as to the causes
and effects of a possible “blackout,” but the factual determination as to SB’s status
was within the sole province of the fact finder. See United States v. Walker, 20
U.S.C.M.A. 241, 246, 43 C.M.R. 81, 86 (1971) (citing United States v. Oakley ,11
U.S.C.M.A. 187, 29 C.M.R. 3 (1960) for the proposition that “[r]esolution of a
conflict in the evidence . . . [is] within the province of the fact finders.”). The three
sexually explicit photographs of SB on appellant’s couch were admitted into
evidence by the government for the panel’s consideration.

We have closely reviewed the three sexually explicit photographs depicting
SB with her eyes closed and her body in a catatonic state on appellant’s couch. The
photographs do not show SB awake and engaged with her surroundings in a possible
“blackout” state, but instead depict highly probative government evidence that she
was asleep, unconscious, or otherwise unaware. The trial counsel clearly
appreciated the high probative value of the photographs, beginning the government’s
opening statement, closing argument, and rebuttal argument with the photographs
and the adage that a picture was worth a thousand words. In closing argument, the
trial counsel challenged the panel, asking “[w]hat better evidence [than the
photographs] do you have to prove [appellant is] guilty?”

Defense counsel faced the strategic challenge of either not addressing the
damaging photographs or presenting an alternate theory as to SB’s status at the time
the photographs were taken. If defense counsel had presented evidence to support a
theory that SB’s status was only “blacked out” because of her Xanax usage, this
would have created a dangerous tightrope act for appellant, balancing between
conceding that Xanax affected SB—which was the entire government theory—and
ROBERTS—ARMY 20150023

arguing that any effect was limited to SB only being “blacked out,” rather than
passed out.

Instead, defense counsel employed a tactically-sound theory—completely
divergent from the government’s theory—that SB was not affected at all by the
Xanax but she instead engaged in consensual and adulterous sexual activity with
appellant. This theory did not require any defense expert testimony on the effects of
Xanax.° Defense counsel told the military judge that “our case is that [SB] came
down the stairs voluntarily and so awoke [appellant] and engaged in sexual conduct
with him.” Defense counsel asserted SB’s lack of memory surrounding the events
was not credible and she was lying regarding her nefarious behavior to protect her
marriage and her friendship with appellant’s wife.

This defense theory, ironically, was supported by testimony from SB and
CW3 AB. According to both witnesses, SB possessed a prescription for a .5
milligram dosage of Xanax and had frequently used Xanax in that dosage, without
prior incidents of inability to recall events or sleepwalking. Further, SB had not
consumed any alcohol within the timeframe of the offenses, which might have
altered her reaction to her normal Xanax dosage. Defense counsel also established
through the cross-examination of SB that she had taken a .5 milligram dosage of
Xanax prior to her testimony at the Article 32, UCMJ hearing and she had been
completely coherent.

Trial defense counsel’s affidavits explain that the “defense was a consent
defense in light of the photographs” and that the photographs actually “exemplified
sexual behavior” by SB, who consented to dramatically posing for appellant. In
support of this theory, defense counsel admitted into evidence a photograph sent to
appellant and CW3 AB, approximately eighteen months prior to the offenses,
depicting SB and appellant’s wife pulling up their shirts and partially exposing their
breasts.’

The panel rejected, as do we, the defense theory of the photographs. We
pause to highlight, however, in light of the high probative value of the photographs
for the government, that defense counsel faced the Mount Everest of uphill battles to

 

6 We note the government did not present any expert testimony regarding the effects
of Xanax despite that being the entire theory of its case.

7 Whereas the military judge admitted this photograph into evidence for the defense,
we need not decide, but pause to question, the probative value of a photograph
depicting SB’s sexual activity from a timeframe remotely removed from the
offenses. In other words, defense counsels’ ability to articulate the probative value
of this defense-favorable, sexually explicit photograph of SB, is indicia that their
performance clearly fell within the wide range of reasonable professional assistance.
ROBERTS—ARMY 20150023

negate the government’s adage that the three photographs were worth a thousand
words. Defense counsels’ theory of consent, and more importantly, their
presentation of testimony and evidence supporting that theory, demonstrates their
performance clearly fell within the wide range of reasonable professional assistance.
We could easily find, if required, that defense counsel made the most with what they
had.

While finding appellant’s trial defense counsels’ performance did not fall
below an objective standard of reasonableness, we are convinced that even if
counsels’ performance was ineffective, it did not give rise to a “reasonable
probability” the result of the proceeding would have been different. The evidence
appellant asserts his defense counsel failed to present at trial was of such minimal
probative value, in light of the three photographs supporting SB’s credible
testimony, that there is no reasonable probability its presentation at trial would have
created a different result in the proceeding.* Under Strickland’s two-prong test,
appellant fails to meet his burden that his trial defense counsel were ineffective.

CONCLUSION
The findings of guilty and sentence are AFFIRMED.
Judge SALUSSOLIA and Judge WALKER concur.

FOR THE COURT:

EN ak
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lerk of Court

 

8 We also note these three photographs gravely undermined any plausibility that
appellant mistakenly believed SB was his wife. The entire left side of SB’s lower
stomach is covered with a tattoo of four colorful hibiscus flowers, a tattoo which
appellant’s wife did not possess. SB’s stomach tattoo of hibiscus flowers is not to
be confused with the matching feather tattoos SB and appellant’s wife obtained the
evening prior to the offenses. SB’s new feather tattoo does not appear in any of the
photographs.
