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

                              No. 201600228
                          _________________________

                  UNITED STATES OF AMERICA
                                  Appellee
                                      v.

                   JOHNATHAN S. ARTHURTON
                Lance Corporal (E-3), U.S. Marine Corps
                              Appellant
                       _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Lieutenant Colonel Eugene H. Robinson, Jr., USMC.
Convening Authority: Commanding General, 3d Marine Division ( -)
                      (Rein), Okinawa, Japan.
Staff Judge Advocate’s Recommendation: Major Timothy S. Taylor,
                               USMC.
         For Appellant: Captain Daniel R. Douglass, USMC.
  For Appellee: Lieutenant Commander Jeremy R. Brooks, JAGC,
          USN; Lieutenant Taurean K. Brown, JAGC, USN.
                      _________________________

                        Decided 23 February 2017
                         _________________________

   Before M ARKS , F ULTON , and J ONES , 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.
                       _________________________

   PER CURIAM:
   A military judge sitting as a general court-martial convicted the
appellant, contrary to his pleas, of one specification of attempted sexual
assault of a child, two specifications of attempted sexual abuse of a child, and
one specification of making a false official statement in violation of Articles
80 and 107, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 880 and
                       United States v. Arthurton, No. 201600228


907 (2012). The military judge sentenced the appellant to 36 months’
confinement, forfeiture of all pay and allowances, reduction to pay grade E-1,
and a dishonorable discharge. The convening authority (CA) approved the
sentence as adjudged.
   The appellant raises one assignment of error: the military judge erred
when he denied a request for an expert consultant in the field of forensic
psychology. We disagree and, finding no error materially prejudicial to the
substantial rights of the appellant, affirm the findings and sentence. Arts.
59(a) and 66(c), UCMJ.
                                     I. BACKGROUND
   From August to November of 2014, the appellant corresponded via text
and instant message with a person he thought was a 15-year-old girl. In
reality, he was communicating with an undercover agent working with the
Naval Criminal Investigative Service. The appellant discussed many graphic
sexual topics in his messages, described how he would satisfy her sexually,
and asked her to have sex with him. Ultimately, he ended his
communications with the undercover agent, telling her to delete their text
messages to “save [their] hides.”1
    In January 2015, the appellant communicated with yet another
undercover agent he believed was a 14-year-old girl who lived on Kadena Air
Base in Okinawa, Japan. Again, he sent graphic sexual messages to the
undercover agent and within a week of the first message arranged to meet
her for sex. The appellant suggested meeting on a day when the girl would be
alone in her home. He asked her to have her underage friend available to
have sex with his friend, with whom he would be arriving. Further, he
instructed her to lie about their ages if they were asked how old they were.
The appellant then asked a friend—who was unaware of his plans—to drive
him to the address the undercover agent had given him. The appellant
arrived at the home and was apprehended with a condom in his pocket.
    Before trial, the defense moved to compel the assistance of an expert
consultant in the field of forensic psychology. The defense argued a
psychologist was needed to (1) assist in the defense of entrapment and (2)
rebut claims by the government, on both the merits and at sentencing, that
the appellant “is predisposed to commit sexual misconduct with
children . . . that he is a pedophile, some sort of sexual predator, [and] has an
interest in children as sexual objects[.]”2



   1   Record at 84.
   2   Appellate Exhibit III at 3.


                                           2
                       United States v. Arthurton, No. 201600228


   The military judge denied the expert assistance request, finding an
inadequate showing of the necessity for the forensic psychologist.
                                     II. DISCUSSION
    “A military judge’s ruling on a request for expert assistance is reviewed
for an abuse of discretion.” United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F.
2010) (citing United States v. Bresnahan, 62 M.J. 137, 143 (C.A.A.F. 2005)).
An accused is entitled to expert assistance when necessary for an adequate
defense. United States v. Freeman, 65 M.J. 451, 458 (C.A.A.F. 2008). The
mere possibility of expert assistance is not a sufficient basis. “Instead, the
accused has the burden of establishing that a reasonable probability exists
that (1) an expert would be of assistance to the defense and (2) that denial of
expert assistance would result in a fundamentally unfair trial.” Id. (citations
omitted). “To establish the first prong, the accused ‘must show (1) why the
expert assistance is needed; (2) what the expert assistance would accomplish
for the accused; and (3) why the defense counsel were unable to gather and
present the evidence that the expert assistance would be able to develop.’” Id.
(quoting Bresnahan, 62 M.J. at 143). “Defense counsel are expected to
educate themselves to attain competence in defending an issue presented in a
particular case.” United States v. Kelly, 39 M.J. 235, 238 (C.A.A.F. 1994).
   In his analysis, the military judge concluded that the defense had
provided only a “generalized description of how the expert assistance might
assist them ‘undermine the prosecution’s case in chief’’” without explaining
with any level of specificity “how that might happen or why the expert
assistance [was] actually needed.”3 The military judge noted that the
government had not consulted any experts and was not going to use any
experts at trial. Further, the military judge found that the defense’s true
motive in seeking the expert was to use him in sentencing to explain that the
appellant had a low risk of recidivism, and they had only shown that this
mitigation was a “mere possibility,”4 which was not sufficient. The military
judge cited United States v. Frey, 73 M.J. 245 (C.A.A.F. 2014) for the
proposition that the government would be unable to argue the appellant was
a pedophile or predisposed toward children unless the defense introduced
expert testimony, since the government would be restricted to the admission
of proper evidence under RULE FOR COURTS-MARTIAL 1001, MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2012 ed.). Finally, the military judge
concluded that the trial defense counsel had not met their burden of
persuasion as to whether the lack of expert assistance would result in a
fundamentally unfair trial.

   3   Appellate Exhibit VII at 2.
   4   Id. at 3.


                                           3
                    United States v. Arthurton, No. 201600228


    We find that the military judge did not abuse his discretion. “An abuse of
discretion occurs when the trial court’s findings of fact are clearly erroneous
or if the court’s decision is influenced by an erroneous view of the law.” Lloyd,
69 M.J. at 99 (citation and internal quotation marks omitted). Here the
military judge’s findings of fact are supported by the record, and he applied
the correct legal standards in denying the motion to compel expert assistance.
While it is possible that the requested expertise might have assisted the
appellant at trial, a “mere possibility” alone is not sufficient. Id.
                               III. CONCLUSION
   The findings and sentence, as approved by the CA, are affirmed.


                                              For the Court



                                              R.H. TROIDL
                                              Clerk of Court




                                       4
