UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                            SULLIVAN, COOK, and BAIME
                              Appellate Military Judges

                          UNITED STATES, Appellee
                                       v.
                Private First Class DONALD E. SCHEUERMAN
                         United States Army, Appellant

                                  ARMY 20080304

                           Headquarters, Fort Stewart
                        Tara A. Osborn, Military Judge
               Colonel Margaret A. McDevitt, Staff Judge Advocate


For Appellant: Lieutenant Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew
M. Miller, JA; MAJ Grace M. Gallagher, JA; Captain Candace N. White-Halverson,
JA (on brief).

For Appellee: Colonel Denise R. Lind, JA; Lieutenant Colonel Francis C. Kiley, JA;
Major Karen J. Borgerding, JA (on brief).


                                     26 May 2009
                             -----------------------------------
                               OPINION OF THE COURT
                             -----------------------------------

SULLIVAN, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of two specifications of absence without leave (AWOL) 1 in
violation of Article 86, Uniform Code of Military Justice [hereinafter UCMJ], 10
U.S.C. § 886. The convening authority approved the adjudged sentence of a bad-
conduct discharge, confinement for twelve months, and reduction to Private E1.




1
  For Charge I and its Specification, appellant pled guilty to AWOL as a lesser
included offense of desertion with intent to avoid hazardous duty in violation of
Article 85, UCMJ. The government did not attempt to prove up the greater charged
offense.
SCHEUERMAN – ARMY 20080304

                                       FACTS

       Appellant, on leave from his unit in Iraq, discovered his unit’s deployment
had been extended for an additional three months and decided not to return.
According to his statement during the providence inquiry, he was “just going
through some troubles, and [he] was struggling with the fact of whether or not [he]
wanted to return . . . .” A couple of days later, appellant admitted himself to a
behavioral health center complaining of suicidal and homicidal ideation. Based on
his unverified statements to center personnel, appellant was diagnosed with acute
post-traumatic stress disorder (PTSD). 2 Released after approximately three weeks of
hospitalization, appellant eventually made his way to Fort Sill where he surrendered
to military authorities. On return to the rear detachment at Fort Stewart, appellant
was hospitalized for mental evaluation, diagnosed with generalized anxiety (but not
appearing to have a severe anxiety disorder), and released to the rear detachment
unit. Shortly thereafter, after being notified he was cleared for deployment and
would be returning to Iraq, appellant again absented himself without authority for
almost five months. He voluntarily terminated his AWOL when he surrendered to
military authorities at the Personnel Control Facility at Fort Sill, citing PTSD and
seeking an administrative discharge.

        During the presentencing proceedings, the government presented testimony
from appellant’s platoon sergeant, Sergeant First Class (SFC) Crawford, who
testified that, on a couple of occasions after appellant’s return to the unit following
his second AWOL, he witnessed appellant “degrade” the Army to new soldiers in the
unit, saying they did not know what they were getting into, how bad the Army was,
and “things along that line in general.” Sergeant First Class Crawford further
testified appellant’s attitude and demeanor towards the Army had changed from
before appellant’s duty in Iraq, and it is not “good for the Army” for a soldier to
“badmouth” the Army. Trial defense counsel objected that SFC Crawford was
testifying on specific instances of conduct. Government counsel responded that
“badmouthing the Army or talking to Soldiers about their decision to join the Army
isn’t misconduct.” The military judge summarily overruled the defense objection,
with no further articulated analysis.

       On appeal, appellant asserts the military judge erred in allowing SFC
Crawford’s testimony. Specifically, appellant complains the testimony violated Rule
for Courts-Martial 1001(b)(5) [hereinafter R.C.M.], Manual for Courts-Martial 2008
[hereinafter M.C.M.] which limits testimony on direct examination with respect to
rehabilitative potential to opinion only. Appellant also asserts SFC Crawford’s
testimony violates R.C.M. 1105(b)(4), which limits matters in aggravation to those
directly relating to or resulting from the offenses of which the accused has been

2
 Whether appellant was actually exposed to traumatic incidents in Iraq, presumably
as triggers for PTSD, was the subject of some contention at his court-martial.


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SCHEUERMAN – ARMY 20080304

found guilty. Further, appellant asserts the military judge failed to conduct the
required balancing test of Military Rule of Evidence 403 [hereinafter Mil. R. Evid.],
weighing the probative value of the testimony against its potential unfair prejudice.
We disagree and find no error.

                             LAW AND DISCUSSION

       Rule for Courts-Martial 1001(b) outlines the scope of presentencing matters
that may be presented by the prosecution. Rule for Courts-Martial 1001(b)(4)
provides for evidence in aggravation, that is, “any aggravating circumstances
directly relating to or resulting from the offense of which the accused has been
found guilty.” Id. Rule for Courts-Martial 1001(b)(5) provides for government
opinion evidence on an accused’s rehabilitative potential, within limitations. One of
the limitations on such evidence is a prohibition against providing the basis for that
opinion during direct examination. R.C.M. 1001(b)(5)(D), Discussion. 3

       The standard for review of a military judge’s decision to admit presentencing
evidence is a clear abuse of discretion. United States v. Clemente, 50 M.J. 36
(C.A.A.F. 1999); United States v. Rust, 41 M.J. 472 (C.A.A.F. 1995). Aggravation
evidence is intended to permit the presentation at a court-martial of matters similar
to those contained in a presentencing report in an adversarial proceeding and
consistent with the rules of evidence. Clemente, 50 M.J. at 37 (citing Drafters’
Analysis of R.C.M. 1001, M.C.M. at A-21-67).

       Appellant complains the testimony of Sergeant Crawford was inadmissible
under both R.C.M. 1001(b)(4) and R.C.M. 1001(b)(5). We find the evidence was
properly admitted as aggravation evidence and, accordingly, “need not address the
[testimony’s] admissibility as a matter related to [a]ppellant's rehabilitation
potential, for the fact that evidence may be inadmissible under one rule does not
preclude its admissibility under a different rule.” United States v. Gogas, 58 M.J.
96, 98 (C.A.A.F. 2003).

       In Gogas, appellant was convicted pursuant to his pleas of wrongful use and
distribution of lysergic acid diethylamide (LSD) in violation of Article 112a.
During the sentencing proceedings, the government presented a letter appellant
wrote to his Congressman which, among other things, included a complaint that the
criminal charges had injured his reputation and could not be proven in the absence
of physical evidence. 58 M.J. at 97. The Court of Appeals for the Armed Forces
(CAAF) determined the letter was admissible in aggravation:




3
 Depending on the scope of cross-examination, however, the witness may testify on
specific instances of conduct. R.C.M. 1001(b)(5)(F), Discussion.


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SCHEUERMAN – ARMY 20080304

             [A]ggravating evidence includes evidence which is
             directly related to the offense for which an accused is to
             be sentenced so that the circumstances surrounding that
             offense or its repercussions may be understood by the
             sentencing authority.

             ....

             In accordance with R.C.M. 1001(b)(4), Appellant's letter
             was a statement by the accused directly relating to the
             offenses of which he was found guilty. The letter revealed
             an aggravating circumstance: Appellant's indifference to
             anything other than his own pleasure. Appellant wrote, "I
             was living my life with blinders on and not thinking of the
             consequences at the time. The only thing I was concerned
             with was making myself happy with using [LSD]."
             Indifference to the nature or consequences of criminal
             conduct is an aggravating factor that may be considered in
             determining an appropriate sentence for that misconduct.
             The military judge did not abuse his discretion in
             admitting the letter as aggravation evidence.

Id., 58 M.J. 98-99 (quoting United States v. Vickers, 18 M.J. 403, 406 (C.M.A.
1982)) (citations omitted).

       Rule for Court-Martial 1001(b)(4) has a “rather broad ambit.” United States
v. Stephens,     M.J. , slip op. at 4 (C.A.A.F. 12 March 2009). Appellant’s poor
attitude toward military service, which, in part, motivated his multiple AWOL
periods, is a circumstance surrounding his offenses. 4 “An accused's attitude toward
the offense of which he has been convicted is directly related to that offense and
relevant to fashioning a sentence appropriate to both the offense and the offender.”
United States v. Anderson, 25 M.J. 779, 780 (A.C.M.R. 1988)(citing United States v.
Wright, 20 M.J. 518, 520 (A.C.M.R. 1985), pet. denied, 21 M.J. 309 (C.M.A. 1985);
United States v. Pooler, 18 M.J. 832, 833 (A.C.M.R. 1984), pet. denied, 19 M.J. 317
(C.M.A. 1985)). “An accused's awareness of the magnitude and seriousness of a
crime is admissible in sentencing, as is a remorseless attitude toward the offense

4
  Appellant’s first AWOL began on 15 April 2007 when he was supposed to take a
flight from Dallas/Fort Worth which would have landed appellant in Kuwait on 16
April 2007. Instead, on 16 April 2007, appellant posted comments on his “myspace”
blog in which he commented “UNCLE FUCKING DICKHEAD COCKSUCKER SAM
JUST EXTENDED MY UNIT IN IRAQ. . . . SO INSTEAD OF GOIN [SIC] BACK
TODAY AND HAVIN [SIC] LIKE 7 OR 8 MONTHS LEFT, I HAVE A
GODDAMNED YEAR!!!!!!!!!!!!!!!!!!”


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SCHEUERMAN – ARMY 20080304

committed.” United States v. Alis, 47 M.J. 817, 825 (A.F. Ct. Crim. App. 1998)
(citations omitted), pet. denied 19 M.J. 317 (C.M.A. 1985). An unauthorized
absence is not a victimless crime; the victim is the Army, the unit, and its members.
See United States v. Cantrell, 44 M.J. 711, 715 (A.F. Ct. Crim App. 1996), pet.
denied, 48 M.J. 372 (C.A.A.F. 1997) (desertions deprive the unit of services and
place burdens on others to shoulder responsibilities). Any statements made by an
accused, before or after the commission of an offense, which relate directly or
indirectly to the victim of that offense, are relevant to demonstrate the accused’s
lack of remorse. See United States v. Chaves, 28 M.J. 691, 692 (A.F.C.M.R. 1989)
(lack of remorse is demonstrated by an accused “stating, maybe bragging, to
others about how glad he is about the crime he has committed.”).

       Essentially, appellant repeatedly made derogatory remarks about his victim
and now complains those remarks should not be considered in his sentencing. We
disagree; appellant’s remarks demonstrate a lack of remorse for the offenses of
which he was convicted and, as such, are relevant in fashioning an appropriate
sentence. Indeed, as our superior court has recognized, “prejudice to good order and
discipline is a characteristic of all offenses under the Uniform Code.” United States
v. Foster, 40 M.J. 140, 143 (C.A.A.F. 1994) (citing United States v. Doss, 15 M.J.
409, 415 (C.M.A. 1983) (Cook, J., concurring)). Accordingly, the government’s
purpose in demonstrating appellant’s continued disrespect of military authority
before the sentencing authority is wholly appropriate since those statements clearly
undermine morale, order, and discipline in the military.

       Even where evidence is relevant, the military judge must balance its probative
value against its prejudicial effect. Mil. R. Evid. 403. Where the military judge
does not articulate on the record the balancing, less deference is granted to the
judge’s ruling. United States v. Barnett, 63 M.J. 388, 396 (C.A.A.F. 2006).
Granting the military judge’s ruling less deference, we conducted our own balancing
using the factors outlined in United States v. Berry, 61 M.J. 91, 95-6 (C.A.A.F.
2005), and we find she did not abuse her discretion. “The relevance of an offender's
attitude toward his offense ‘can hardly be exaggerated.’” Alis, 47 M.J. at 825
(quoting United States v. Pooler, 18 M.J. 832, 833 (A.C.M.R. 1984)). Weighing the
other Berry factors, we note, inter alia, trial was by military judge alone and SFC
Crawford gave very succinct and balanced testimony in which he stated appellant’s
comments, on two separate instances, had the potential to affect morale but actually
had no negative impact.




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SCHEUERMAN – ARMY 20080304

                                   CONCLUSION

      Upon consideration of the entire record, the other assigned errors 5 and those
matters personally asserted pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), the findings and sentence are affirmed.

      Judge COOK and Judge BAIME concur.

                                        FOR
                                         FORTHE
                                             THECOURT:
                                                 COURT:




                                         MALCOLMH.H.SQUIRES,
                                        MALCOLM          SQUIRES,JR.
                                                                  JR.
                                         ClerkofofCourt
                                        Clerk      Court




5
  Although appellant asserts, inter alia, he was denied effective assistance of
counsel, claiming “he was never informed by his trial defense counsel that [he]
could submit matters to the convening authority on his own behalf, or from his wife
and family,” the record of trial and allied papers contain ample evidence appellant
was advised of his right to submit “any matters” he wished the convening authority
to consider prior to taking action in his case. Further, although appellant asserts he
would have written a personal letter and obtained letters from others, he makes no
proffer whatsoever as to potential content. In the absence of any such information
and in light of trial defense counsel’s clemency submission noting appellant’s
successful completion of four months of confinement with no additional disciplinary
problems, we decline to find a basis for relief. See United States v. Ginn, 41 M.J.
236 (C.A.A.F. 1997) (factors upon which a claim of ineffective assistance of counsel
can be rejected without evidentiary hearing include failure to set forth specific facts;
only conclusory or speculative assertions are made); see also United States v.
Cornett, 47 M.J. 128 (C.A.A.F. 1997); see generally Strickland v. Washington, 46
U.S. 668, 687 (1984).


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