          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                           Airman First Class RICHARD A. RIVERA
                                   United States Air Force

                                               ACM 38649

                                           18 February 2016

         Sentence adjudged 4 April 2014 by GCM convened at Laughlin Air Force
         Base, Texas. Military Judge: Bradley A. Cleveland.

         Approved Sentence: Dishonorable discharge, confinement for 6 months,
         forfeiture of all pay and allowances, reduction to E-1, and a reprimand.

         Appellate Counsel for Appellant: Major Isaac C. Kennen.

         Appellate Counsel for the United States: Lieutenant Colonel Roberto
         Ramirez; Major Mary Ellen Payne; Captain Tyler B. Musselman; and
         Gerald R. Bruce, Esquire.

                                                  Before

                                 HECKER, TELLER, and BROWN
                                    Appellate Military Judges

                                     OPINION OF THE COURT

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                              under AFCCA Rule of Practice and Procedure 18.4.



BROWN, Judge:

       At a general court-martial composed of officer members, Appellant was convicted,
contrary to his plea, of forcible sodomy, in violation of Article 125, UCMJ, 10 U.S.C. §
925, and, consistent with his plea, of dereliction of duty, in violation of Article 92,
UCMJ, 10 U.S.C. § 892.           Appellant was sentenced to a dishonorable discharge,
confinement for six months, forfeiture of all pay and allowances, reduction to E-1 and a
reprimand.
       Appellant raises seven issues on appeal: (1) his plea to dereliction of duty was
improvident, (2) the evidence is factually and legally insufficient to sustain his conviction
for forcible sodomy, (3) he was denied due process under the United States Constitution
when he was tried by a panel consisting of five members who were not required to be
unanimous in their vote to convict, (4) the trial counsel’s findings argument was
improper, (5) his trial defense counsel were ineffective for failing to object to the
improper findings argument, (6) certain portions of the victim’s sealed mental health
records were improperly not provided to the defense as part of the discovery process, and
(7) the defense was not informed prior to trial that the victim’s special victims’ counsel
had copied the victim’s sealed mental health records.

        We find Appellant’s plea to dereliction of duty to be provident, but we also find
the evidence factually insufficient to sustain his conviction for forcible sodomy. In light
of that latter decision, the remaining issues raised by Appellant are moot.1

                                                  Background

        In the fall of 2011, Appellant and a female Airman, NT, began dating while
assigned together at technical school training. Their relationship included consensual
sexual contact. On 13 January 2012, the couple attended a birthday party for NT at a
local hotel. Early the next morning, NT joined Appellant in a nearby hotel room. She
testified that once there, Appellant forced her to engage in oral sodomy.2

        The two continued their consensual sexual relationship after this incident. After
Appellant was transferred to another base in February 2012, NT arranged to meet him at
a hotel room on 10 March 2012. Based on NT’s account of this encounter, Appellant was
charged with aggravated sexual assault for forcing her to engage in intercourse,
aggravated sexual contact for grabbing her breast, and assault consummated by a battery
for striking her with his hand. Appellant was acquitted of all of these March 2012
charges.3

       Upon returning to his base after the March 2012 incident, Appellant used his
position as a member of the medical operations squadron to access NT’s medical records.
He pled guilty to willful dereliction of duty for doing so.




1
  For each of these issues, the relief Appellant requested was that we set aside the finding of guilt for the sodomy
charge.
2
  Although Appellant was convicted of the forcible sodomy charge, he was acquitted of an alleged aggravated sexual
assault that NT alleged occurred in the hotel room immediately after the forcible sodomy..
3
  He was also acquitted of a second alleged forcible sodomy that purportedly occurred a month earlier in February
2012.


                                                         2                                             ACM 38649
                         Providence of Plea—Dereliction of Duty

        Appellant was charged with, and pled guilty to, being derelict in the performance
of his duties by willfully failing to refrain from accessing NT’s personal health records on
several occasions between March and April 2012. During this time frame, Appellant was
a medical technician whose duties included accessing patients’ medical records in order
to facilitate patient care. During his providence inquiry, Appellant stated NT had told
him she had not been receiving adequate medical care and that she was not sure what her
treatment plan stated regarding her doctor’s plans for her. Appellant told her he would
look at her records and let her know what they stated regarding her treatment. Appellant
now contends his plea is improvident because his statements about NT giving him
permission to review her records called into question whether he actually had a duty to
refrain from doing so. We disagree.

       We review a military judge’s acceptance of an accused’s guilty plea for an abuse
of discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). In order to
prevail on appeal, Appellant has the burden to demonstrate “a substantial basis in law and
fact for questioning the guilty plea.” Id. (quoting United States v. Prater, 32 M.J. 433,
436 (C.M.A. 1991)) (internal quotation marks omitted). The “mere possibility” of a
conflict between the accused’s plea and statements or other evidence in the record is not a
sufficient basis to overturn the trial results. United States v. Garcia, 44 M.J. 496, 498
(C.A.A.F. 1996) (quoting Prater, 32 M.J. at 436) (internal quotation marks omitted).
“The providence of a plea is based not only on the accused’s understanding and recitation
of the factual history of the crime, but also on an understanding of how the law relates to
those facts.” United States v. Medina, 66 M.J. 21, 26 (C.A.A.F. 2008) (citing United
States v. Care, 40 C.M.R. 247, 250–51 (C.M.A. 1969)).

        As part of his providence inquiry, Appellant acknowledged he was not authorized
to access records for the purpose of helping a friend or family, and that he had been
trained on this at technical school and in the Laughlin Air Force Base clinic. He admitted
Air Force Instruction (AFI) 44-210, Patient Administration Functions (29 November
2010) and the Health Insurance Portability and Accountability Act (HIPAA) imposed a
duty on him to refrain from improperly accessing personal health records, and that he was
only supposed to use the medical records computer system for patients as part of his duty
to provide care to patients at the base facility. He told the military judge that doing so to
view NT’s records from her treatment at another facility was an “immature, wrong and
stupid decision.” He also acknowledged that she had never given him written
authorization to view her records for any purpose. See AFI 41-210, ¶ 2.2.3.1 (“Patient’s
Protected Health Information can only be used for treatment, payment and health care
operations without written authorization from the patient or other disclosures required by
law.”).




                                             3                                     ACM 38649
        Here, we find Appellant’s recitation of the facts during the providence inquiry
objectively support his guilty plea. See United States v. Bickley, 50 M.J. 93, 94
(C.A.A.F. 1999). He admitted his position as a medical technician at Laughlin Air Force
Base gave him access to military members’ medical records solely for the purpose of
providing medical care to patients at that base’s medical clinic. It was Appellant’s duty
to remain within those parameters when accessing medical records, and he willfully
failed to do so. NT’s purported acquiescence in this access for a non-treatment related
purpose does not trump Appellant’s obligation to comply with his duty not to access
those records for that purpose. The military judge did not abuse his discretion by
accepting the guilty plea.

                         Factual Sufficiency—Forcible Sodomy

        We review issues of factual sufficiency de novo. United States v. Beatty, 64 M.J.
456, 459 (C.A.A.F. 2007). 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] convinced of the [appellant]’s guilt beyond a reasonable doubt.”
United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987), quoted in United States v.
Reed, 54 M.J. 37, 41 (C.A.A.F. 2000). In conducting this unique appellate role, we take
“a fresh, impartial look at the evidence,” applying “neither a presumption of innocence
nor a presumption of guilt” to “make [our] own independent determination as to whether
the evidence constitutes proof of each required element beyond a reasonable doubt.”
United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). Our factual sufficiency
determination is limited to a review of the “entire record,” meaning evidence presented at
trial. Reed, 54 M.J. at 43; United States v. Bethea, 46 C.M.R. 223, 225 (C.M.A. 1973).

       To convict Appellant of forcible sodomy, the Government must prove two
elements beyond a reasonable doubt: Appellant engaged in unnatural carnal copulation
and the act was done by force and without consent. Manual for Courts-Martial, United
States, pt. IV, ¶ 51.b.(1), (4) (2008 ed.). We have reviewed the entire record of trial and
evaluated the arguments by Appellant and the Government. We have also made
allowances for not having heard and observed the witnesses. Having done so, and having
considered the unique facts of this case on its merits, we are not personally convinced of
Appellant’s guilt of forcible sodomy. Given the totality of the circumstances in this case,
we are not ourselves convinced beyond a reasonable doubt that the Government has
proven each element beyond a reasonable doubt.

       It should go without saying that a court-martial is a most serious matter, and the
requirement for proof beyond a reasonable doubt plays a vital role in the legitimacy of
the military justice system. A “society that values the good name and freedom of every
individual should not condemn a man for commission of a crime when there is reasonable
doubt about his guilt.” In re Winship, 397 U.S. 358, 363–64 (1970). In the military
justice system, where servicemembers accused at court-martial are denied some rights


                                             4                                   ACM 38649
provided to other citizens, our unique factfinding authority is a vital safeguard designed
to ensure that every conviction is supported by proof beyond a reasonable doubt. See Ex
parte Quirin, 317 U.S. 1, 40–41 (1942) (stating that there is no constitutional right to a
trial by jury in courts-martial); O’Callahan v. Parker, 395 U.S. 258, 265 (1969)
(recognizing     differences    between      courts-martial    and     civilian   criminal
proceedings),overruled on other grounds by Solorio v. United States, 483 U.S. 435, 440–
41 (1987). This authority “provide[s] a source of structural integrity to ensure the
protection of service members’ rights within a system of military discipline and justice
where commanders themselves retain awesome and plenary responsibility.” United
States v. Jenkins, 60 M.J. 27, 29 (C.A.A.F. 2004). Most cases reviewed by this court are
deemed factually sufficient. However, in this instance, we simply are not personally
convinced that Appellant is guilty of the forcible sodomy offense. Accordingly, we
dismiss Specification 1 of Charge III.

                                  Sentence Reassessment

        Because one of Appellant’s convictions has been set aside, we must determine
whether we can reassess the sentence, or whether we must order a rehearing. This court
has “broad discretion” in deciding to reassess a sentence to cure error and in arriving at
the reassessed sentence. United States v. Winckelmann, 73 M.J. 11, 12 (C.A.A.F. 2013).
To reassess the sentence, we must be able to reliably conclude that, in the absence of
error, the sentence “would have been at least of a certain magnitude,” and the reassessed
sentence must be “no greater than that which would have been imposed if the prejudicial
error had not been committed.” United States v. Sales, 22 M.J. 305, 307, 308 (C.M.A.
1986). We must be able to determine this to a “degree of certainty.” United States v.
Eversole, 53 M.J. 132, 134 (C.A.A.F. 2000); see also United States v. Taylor, 51 M.J.
390, 391 (C.A.A.F. 1999) (holding we must be able to reach this conclusion “with
confidence”). “The standard for reassessment is not what would be imposed at a
rehearing but what would have been imposed at the original trial absent the error.”
United States v. Taylor, 47 M.J. 322, 325 (C.A.A.F. 1997); see also United States v.
Davis, 48 M.J. 494, 495 (C.A.A.F. 1998) (holding no higher sentence than that which
would have been imposed by the trial forum may be affirmed). A reassessed sentence
“must be purged of prejudicial error and also must be ‘appropriate’ for the offense[s]
involved” based on our sentence approval obligation under Article 66(c), UCMJ. Sales,
22 M.J. at 308.

        In determining whether to reassess a sentence or order a rehearing, we consider the
totality of the circumstances, including certain illustrative, but not dispositive, factors:
(1) dramatic changes in the penalty landscape and exposure, (2) the forum, (3) whether
the remaining offenses capture the gravamen of the criminal conduct included within the
original offenses, (4) whether significant or aggravating circumstances remain admissible
and relevant, and (5) whether the remaining offenses are the type with which we as
appellate judges have the experience and familiarity to reliably determine what sentence


                                             5                                    ACM 38649
would have been imposed at trial by the sentencing authority. Winckelmann, 73 M.J. at
15–16.

        There is no longer a finding that Appellant forcibly sodomized a fellow Airman
and there is no longer a maximum sentence that includes confinement for life without
eligibility for parole and a dishonorable discharge. Instead, the panel would have been
sentencing Appellant for being willfully derelict in the performance of his duties when he
used his position to view the medical records of another Airman on several occasions.4
This offense carries a maximum sentence of a bad-conduct discharge, confinement for 6
months, forfeiture of all pay and allowances, and reduction to E-1. Thus, the sentencing
landscape has changed significantly as a result of our decision, which generally gravitates
away from our ability to reassess the sentence, as does the fact that Appellant was
sentenced by a panel. United States v. Riley, 58 M.J. 305, 312 (C.A.A.F. 2003);
Winckelman, 73 M.J. at 14. The remaining dereliction offense does not relate to or
capture the gravamen of the set aside charge, and no significant or aggravating
circumstances regarding the sexual incident remain admissible. This offense, however, is
of the type that we have experience and familiarity with as appellate judges. Considering
the totality of the circumstances of this case, including the factors elucidated in
Winckelmann, we are confident we can reassess the sentence.

       Based on Appellant’s convictions for forcible sodomy and willful dereliction of
duty, the panel sentenced Appellant to a dishonorable discharge, confinement for 6
months, forfeiture of all pay and allowances, reduction to E-1, and a reprimand. In this
case, the totality of the circumstances leads us to conclude that we can reassess the
sentence to affirm only so much as provides for reduction to E-1, forfeiture of $1,000 pay
per month for two months, and a reprimand. We can confidently and reliably determine
that, absent the error, the sentence adjudged by the members would have been at least
that magnitude.

                                                   Conclusion

       Specification 1 of Charge III and Charge III are dismissed. The findings of guilty
as to Charge I and its specification are affirmed. As so modified, the finding is correct in
law and fact.5

        We affirm only so much of the sentence as provides for reduction to E-1,
forfeiture of $1,000 pay per month for two months, and a reprimand. All rights,
privileges, and property of which Appellant has been deprived by virtue of that portion of

4
  In his guilty plea inquiry, Appellant did not state how many times he accessed NT’s records. Evidence introduced
during the litigated trial indicated her records were accessed on five occasions for a total of nine minutes.
5
  In the promulgating order, Specification 3 of Charge II erroneously provides the complainant’s initials rather than
her full name. Although we find Appellant is not entitled to any relief given he suffered no material prejudice from
the error, we direct completion of a corrected promulgating order.


                                                         6                                              ACM 38649
the findings and sentence set aside by this decision are ordered restored. See Articles
58b(c) and 75(a), UCMJ, 10 U.S.C. §§ 858b(c), 875(a).

       The findings, as modified, and the sentence, as reassessed and modified, are
correct in law and fact, and no error materially prejudicial to the substantial rights of
Appellant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).
Accordingly, the findings, as modified, and the sentence, as reassessed and modified, are
AFFIRMED.




             FOR THE COURT



             LEAH M. CALAHAN
             Clerk of the Court




                                            7                                  ACM 38649
