               U NITED S TATES AIR F ORCE
              C OURT OF C RIMINAL APPEALS
                           ________________________

                                No. ACM 39380
                           ________________________

                              UNITED STATES
                                  Appellee
                                       v.
                            Denis M. GUEU
                 Captain (O-3), U.S. Air Force, Appellant
                           ________________________

        Appeal from the United States Air Force Trial Judiciary
                            Decided 23 April 2019
                           ________________________

Military Judge: Donald R. Eller, Jr.
Approved sentence: Dismissal and confinement for 3 years. Sentence ad-
judged 1 July 2017 by GCM convened at Spangdahlem Air Base, Ger-
many.
For Appellant: Major Mark C. Bruegger, USAF; Brian L. Mizer, Esquire.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Captain Pe-
ter F. Kellett, USAF; Mary Ellen Payne, Esquire.
Before JOHNSON, DENNIS, and LEWIS, Appellate Military Judges.
Senior Judge JOHNSON delivered the opinion of the court, in which
Judge DENNIS and Judge LEWIS joined.
                           ________________________

    This is an unpublished opinion and, as such, does not serve as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

JOHNSON, Senior Judge:
   A general court-martial composed of officer members convicted Appellant,
contrary to his pleas, of one specification of sexual assault of a child and one
specification of sexual abuse of a child on divers occasions, both in violation of
Article 120b, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920b. The
                      United States v. Gueu, No. ACM 39380


court-martial sentenced Appellant to a dismissal, confinement for three years,
and forfeiture of all pay and allowances. The convening authority approved
only so much of the sentence as included a dismissal and confinement for three
years; in addition, the convening authority waived mandatory forfeitures for a
period of six months for the benefit of Appellant’s spouse and dependent chil-
dren.
    Appellant raises six issues on appeal: (1) whether Appellant’s convictions
are legally and factually sufficient; (2) whether Appellant is entitled to relief
for unreasonable post-trial delay; (3) whether Appellant received ineffective
assistance of counsel because of trial defense counsel’s failure to adequately
explore the victim’s inconsistent statements and motives to lie; (4) whether
Appellant received ineffective assistance of counsel because of trial defense
counsel’s failure to introduce certain evidence at his court-martial; (5) whether
Appellant’s sentence is inappropriately severe; and (6) whether the Govern-
ment engaged in misconduct in relation to Appellant’s prosecution. 1 We find
no prejudicial error and we affirm the findings and sentence.

                                  I. BACKGROUND
    Appellant married CG in December 1995. The couple had two children: NG,
a daughter they adopted as an infant in 2000; and IG, a son who was born in
2002. In 2006, Appellant was commissioned as an Air Force chaplain. Appel-
lant’s first duty station was Dover Air Force Base, Delaware. In 2010, Appel-
lant transferred to Joint Base Andrews, Maryland. In 2014, the family moved
to Germany when Appellant was transferred to Spangdahlem Air Base (AB).
    While the family lived in Maryland and Germany, NG told several of her
friends that Appellant had touched her inappropriately. In 2012, NG told JR,
who was a friend and schoolmate in Maryland, that Appellant “got drunk and
got into bed with her and touched her breasts beneath her shirt and bra and
said that he was giving her a breast cancer exam.” Although NG appeared “re-
ally upset,” JR did not report the incident because NG asked her not to. Years
later, after NG moved to Germany, JR received a text message from NG stating
that Appellant “performed what he called a virginity check on her. . . . [H]e
went underneath her clothes, like underneath her -- underneath her pants and
her underwear.”



1 Appellant personally raises issues (3), (4), (5), and (6) pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982). With respect to issue (6), we have carefully con-
sidered the alleged government misconduct Appellant cites. We find this issue does not
require further discussion or warrant relief. See United States v. Matias, 25 M.J. 356,
361 (C.M.A. 1987).


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                    United States v. Gueu, No. ACM 39380


    Sometime in 2012 or 2013, NG told AG, who was another friend in Mary-
land, that Appellant had “started giving [NG] breast checks.” Later, after Ap-
pellant’s family moved to Germany, NG sent AG a text message that Appellant
had “stuck his hands in her vagina.” However, NG told AG she did not report
it because NG “was scared because her mom [CG] couldn’t afford to live by
herself.”
    In February 2015, after Appellant had transferred to Spangdahlem AB, NG
sent a text message to AD, one of her friends and schoolmates in Germany,
stating Appellant “had touched [NG] in sexual places checking to see if she was
a virgin and other stuff like that.” In addition, NG wrote that Appellant had
also touched her “inappropriately” before they came to Germany. AD did not
report the incident because AD “was scared and because [NG] told her not to.”
    Finally, in January 2016, NG told HB, another friend in Germany, that
“around the time [NG] started puberty her dad would . . . get in bed with her
at night and show her things” and “pointed towards her crotch area.” Although
NG seemed “very sad” when she said this, HB did not initially report the inci-
dent because NG “made her promise not to tell anyone.” However, a week later,
HB told her father what NG had said. HB’s father then informed Air Force
authorities.
    The Air Force Office of Special Investigations (AFOSI) interviewed NG on
25 and 26 February 2016. NG confirmed Appellant had touched her breasts
both in Maryland and in Germany for the ostensible purpose of checking her
for cancerous lumps or other health problems. Appellant would do this occa-
sionally when he tucked NG into bed before she went to sleep. On some of these
occasions, NG smelled alcohol on Appellant’s breath. In these initial inter-
views, NG stated Appellant only touched her groin once, which occurred in
Germany and did not involve penetration.
    On 25 or 26 February 2016, Appellant received an order restricting his con-
tact with his family and Appellant moved out of the family’s off-base residence.
    On 13 May 2016, NG reinitiated contact with the AFOSI. NG told investi-
gators Appellant had performed five or six vaginal “exams” on her, ostensibly
for health reasons. In particular, NG reported that, in February 2015, Appel-
lant performed a “virginity check” on her by using his fingers to feel the open-
ing of her vagina after Appellant learned NG had broken up with a boyfriend.
At trial, NG explained she downplayed the extent of Appellant’s inappropriate
contact with her during the initial AFOSI interviews because she was afraid,
because she did not want Appellant to go to jail, and because it took time before
she was comfortable telling the AFOSI agents everything that had happened.




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                     United States v. Gueu, No. ACM 39380


    At trial, the court members convicted Appellant of one specification of sex-
ual assault on a child by penetrating NG’s vulva with his hand in Germany, 2
and one specification of sexual abuse of a child by touching NG’s breasts with
his hand on divers occasions in Germany with the intent to gratify his sexual
desire, both in violation of Article 120b, UCMJ. The court members found Ap-
pellant not guilty of two additional specifications of sexual abuse of a child in
violation of Article 120b, UCMJ, which alleged that Appellant touched NG’s
vaginal area with his hand in Germany and that Appellant touched NG’s
breasts with his hand on divers occasions in Maryland, both all with the intent
to gratify his sexual desire.

                                 II. DISCUSSION
A. Legal and Factual Sufficiency
    1. Law
    We review issues of legal and factual sufficiency de novo. Article 66, UCMJ,
10 U.S.C. § 866; United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002)
(citation omitted). Our assessment of legal and factual sufficiency is limited to
the evidence produced at trial. United States v. Dykes, 38 M.J. 270, 272 (C.M.A.
1993) (citations omitted).
    The test for legal sufficiency of the evidence is “whether, considering the
evidence in the light most favorable to the prosecution, a reasonable factfinder
could have found all the essential elements beyond a reasonable doubt.” United
States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987) (citation omitted); see also
United States v. Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002) (citation omitted).
“[I]n resolving questions of legal sufficiency, we are bound to draw every rea-
sonable inference from the evidence of record in favor of the prosecution.”
United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citations omitted).
    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.” Turner, 25 M.J. at 325; see also United States v. Reed, 54 M.J. 37, 41
(C.A.A.F. 2000) (citation omitted). “In conducting this unique appellate role,
we take ‘a fresh, impartial look at the evidence,’ applying ‘neither a presump-
tion of innocence nor a presumption of guilt’ to ‘make [our] own independent


2 Appellant was charged with committing this offense on divers occasions. However, at
the close of the Government’s case the military judge granted a defense motion for a
finding of not guilty pursuant to Rule for Courts-Martial 917 with respect to the “on
divers occasions” language based on NG’s testimony describing only one such incident
in Germany.


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                    United States v. Gueu, No. ACM 39380


determination as to whether the evidence constitutes proof of each required
element beyond a reasonable doubt.’” United States v. Wheeler, 76 M.J. 564,
568 (A.F. Ct. Crim. App. 2017) (alteration in original) (quoting Washington, 57
M.J. at 399), aff’d, 77 M.J. 289 (C.A.A.F. 2018). “The term reasonable doubt . . .
does not mean that the evidence must be free from conflict.” Id. (citing United
States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986)).
   2. Analysis
    As the military judge instructed the court members, the elements of Speci-
fication 1 of the Charge, which alleged sexual assault of a child in violation of
Article 120b, UCMJ, and of which Appellant was convicted, included the fol-
lowing:
       (1) That, at or near Herforst, Germany, between on or about 4
       August 2014 and on or about 28 February 2015, [Appellant] com-
       mitted a sexual act upon [NG], to wit: penetrating the vulva of
       [NG] with his hand; and

       (2) That at the time, [NG] had attained the age of 12 years, but
       had not attained the age of 16 years.
See Manual for Courts-Martial, United States (2012 ed.) (2012 MCM), pt. IV,
¶ 45b.a.(b). The military judge further instructed the members that “‘[s]exual
act’ means the penetration, however slight, of the vulva of another by any part
of the body or by any object, with an intent to abuse, humiliate, harass, or
degrade any person or to arouse or gratify the sexual desire of any person.” See
id. at ¶¶ 45.a.(g)(1), 45b.a.(h)(1).
    The military judge further instructed the court members that the elements
of Specification 3 of the Charge, which alleged sexual abuse of a child in viola-
tion of Article 120b, UCMJ, and of which Appellant was convicted, included
the following:
       (1) That, on divers occasions, at or near Herforst, Germany, be-
       tween on or about 4 August 2014 and on or about 28 February
       2015, [Appellant] committed a lewd act upon [NG], to wit: sexual
       contact by touching the breasts of [NG] with his hand, with the
       intent to gratify his sexual desire; and
       (2) That at the time, [NG] was a child who had attained the age
       of 12 years, but had not attained the age of 16 years.
See id. at ¶ 45b.a.(c). The military judge further instructed the members that
a “‘[l]ewd act’ means any sexual contact with a child. ‘Sexual contact’ means
any touching, or causing another person to touch, either directly or through
the clothing, any body part of any person, if done with an intent to arouse or


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                     United States v. Gueu, No. ACM 39380


gratify the sexual desire of any person.” See id. at ¶¶ 45.a.(g)(2)(B), 45b.a.(h)(1),
(5).
    The Government’s case was based primarily on the testimony of NG. She
testified that, after the family moved to Germany in August 2014, Appellant
touched her breasts with his hand as she lay in bed on multiple occasions, ap-
proximately once a month on average. NG was 14 and 15 years old at the time.
In addition, NG described the following incident that occurred in February
2015:
       I dated a boy named [J] for about a month, and my parents found
       out, so I had to break up with him. So, a little bit after that,
       [Appellant] came in for a normal -- like, to tuck me in and he was
       talking to me about trust and how I had broken his trust by go-
       ing behind his back and dating someone. And so he didn’t know
       if he could trust that I hadn’t had sex with this boy, so he wanted
       to make sure that I hadn’t. And this is when he put his hand
       below my underwear and he put his finger -- his fingertip at the
       entryway, and he was like, “Well, you know, it kind of seems a
       little big. I don’t know. Have you had sex?” And I was like, “No,
       dad. I haven’t.” And he was like, “Well, I don’t know.” It just was
       like a little argument.
In response to trial counsel’s questions, NG clarified that Appellant’s finger
penetrated her labia. NG did not tell her mother, CG, about this incident, nor
to this point had she told her mother about Appellant touching her breasts.
    Although CG did not witness these offenses, her trial testimony reinforced
NG’s testimony in significant ways. Both NG and CG testified to a conversation
during a family dinner that occurred in approximately November 2015 regard-
ing one of NG’s friends who had developed a cyst or tumor of some type. Appel-
lant commented to NG, “That’s why I have to do those exams,” or words to that
effect. CG, who was previously unaware of any sexual contact between Appel-
lant and NG, later had a conversation with NG and Appellant during which
NG revealed Appellant had performed breast exams on her. Appellant claimed
it had happened only once, but NG told CG it had happened multiple times.
When CG told Appellant he should not examine NG’s breasts, Appellant re-
sponded to the effect that “somebody had to do it and [CG] didn’t.” CG also
confirmed, inter alia, that Appellant used to regularly tuck NG into bed at
night and that CG had seen Appellant drink alcohol on occasion.
    More significantly, four of NG’s friends from Maryland and Germany testi-
fied that NG told them Appellant had touched her inappropriately well before
such allegations were reported to the AFOSI. As the military judge observed,




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                    United States v. Gueu, No. ACM 39380


this testimony was admitted as substantive evidence without objection or lim-
itation. This evidence powerfully reinforced NG’s testimony regarding the sex-
ual assault and abuse by Appellant.
    At trial, the Defense contended Appellant never touched NG’s breasts or
vagina. The Defense suggested NG had fabricated the allegations in part be-
cause she had sided with CG against Appellant in the couple’s ongoing domes-
tic tensions and eventual legal separation. The Defense further suggested NG
was also motivated by spite because Appellant was stricter than CG with re-
spect to NG dating. In particular, in the autumn of 2015 Appellant had taken
away NG’s cell phone, which was NG’s primary means of contacting a boy-
friend, AS, who had returned to the United States from Germany. However,
these arguments were vitiated by the fact that neither NG nor CG made the
initial report to law enforcement, by the testimony of NG’s friends that she told
them about Appellant’s inappropriate touching long before they were contacted
by the AFOSI, and by NG’s request to each of her friends that they keep her
disclosure secret. The Defense was left to advocate the rather strained theory
that all of these witnesses were conspiring against Appellant and delivering
false testimony at trial.
    Appellant testified in his own defense. He denied ever performing breast or
vaginal exams on NG for any purpose. He portrayed CG as unhappy in Ger-
many and desirous of returning to the United States. He denied drinking alco-
hol in Maryland or Germany. He described taking NG’s phone away in autumn
2015 because of an inappropriate conversation he heard between NG and her
boyfriend in the United States, AS. Appellant confirmed that there had been a
dinner conversation in November 2015 about one of NG’s friends who had a
cancerous cyst removed, but Appellant denied stating that he had performed
an exam on NG. However, he further testified there was a follow-up conversa-
tion during which NG falsely stated Appellant had touched her. In rebuttal,
the Government called two of Appellant’s former chaplain supervisors to tes-
tify to Appellant’s poor character for truthfulness. Moreover, Appellant’s bias
as a witness is self-evident.
    The Defense called Appellant’s son, IG, to testify that he never witnessed
“anything inappropriate” between NG and Appellant, that he did not recall a
dinner conversation about one of NG’s friends having cancer, and that as far
as he knew Appellant did not drink alcohol. However, IG’s testimony was not
particularly damaging to the Government’s case. NG testified Appellant only
touched her breasts and vagina when they were alone in her bedroom; natu-
rally, IG did not witness these events. Appellant himself testified there had
been a dinner conversation about NG’s friend having cancer; apparently, IG
simply did not remember it. As for drinking alcohol, NG and CG did not suggest
Appellant drank frequently or openly, and Appellant did not necessarily visit


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                    United States v. Gueu, No. ACM 39380


IG’s room after drinking. The Defense also called Lieutenant Colonel (Lt Col)
RF, the former wing chaplain at Spangdahlem AB and Appellant’s former su-
pervisor. Lt Col RF testified that he accompanied Appellant to visit the family
home on the night of 26 February 2016 in order for Appellant to gather clothing
and other belongings after receiving the no-contact order. To the extent
Lt Col RF’s recollection of what he or Appellant said during this brief visit dif-
fers from what CG and NG recalled hearing, the differences are of limited ma-
teriality and do little to undercut the core evidence against Appellant.
    The court members heard the testimony and observed the witnesses testify,
including NG and Appellant. The court members were persuaded beyond a rea-
sonable doubt that in Germany Appellant touched NG’s breasts on divers oc-
casions and sexually assaulted NG by penetrating her vulva with his hand. So
are we. Drawing “every reasonable inference from the evidence of record in
favor of the prosecution,” the evidence was legally sufficient to support Appel-
lant’s convictions for Specifications 1 and 3 of the Charge beyond a reasonable
doubt. Barner, 56 M.J. at 134. Moreover, having weighed the evidence in the
record of trial and having made allowances for not having personally observed
the witnesses, we are convinced of Appellant’s guilt beyond a reasonable doubt.
See Turner, 25 M.J. at 325. Appellant’s convictions of the Charge and Specifi-
cations 1 and 3 are therefore both legally and factually sufficient.
B. Post-Trial Delay
    Appellant’s court-martial concluded on 1 July 2017. However, the conven-
ing authority did not take action until 7 December 2017. This 159-day period
exceeded by 39 days the 120-day threshold for a presumptively unreasonable
post-trial delay that the United States Court of Appeals for the Armed Forces
(CAAF) established in United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F.
2006). Accordingly, we have considered the four factors the CAAF identified in
Moreno to assess whether Appellant’s due process right to timely post-trial and
appellate review has been violated: “(1) the length of the delay; (2) the reasons
for the delay; (3) the appellant’s assertion of the right to timely review and
appeal; and (4) prejudice.” Id. at 135 (citing United States v. Jones, 61 M.J. 80,
83 (C.A.A.F. 2005), United States v. Toohey, 60 M.J. 100, 102 (C.A.A.F. 2004)).
“We review de novo claims that an appellant has been denied the due process
right to a speedy post-trial review and appeal.” Id. (citing United States v. Ro-
driguez, 60 M.J. 239, 246 (C.A.A.F. 2004); United States v. Cooper, 58 M.J. 54,
58 (C.A.A.F. 2003)).
    In Moreno, the CAAF identified three types of cognizable prejudice for pur-
poses of an Appellant’s due process right to timely post-trial review: (1) oppres-
sive incarceration; (2) anxiety and concern; and (3) impairment of the appel-
lant’s ability to present a defense at a rehearing. 63 M.J. at 138–39 (citations



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                     United States v. Gueu, No. ACM 39380


omitted). Where, as in this case, the appellant does not prevail on the substan-
tive grounds of his appeal, there is no oppressive incarceration. Id. at 139. Sim-
ilarly, where Appellant’s substantive appeal fails, his ability to present a de-
fense at a rehearing is not impaired. Id. at 140. As for anxiety and concern, the
CAAF has explained “the appropriate test for the military justice system is to
require an appellant to show particularized anxiety or concern that is distin-
guishable from the normal anxiety experienced by prisoners awaiting an ap-
pellate decision.” Id. In this case, Appellant argues he was prejudiced because
of “the emotional and mental toll suffered by [Appellant] as he patiently
awaited the government to perform its prescribed duties.” However, Appellant
fails to articulate any particularized anxiety or concern occasioned by the de-
lay. On the contrary, the generalized “mental toll” Appellant experienced by
patiently awaiting convening authority action is the sort of non-particularized
anxiety that fails to qualify as prejudice under Moreno.
    Where there is no qualifying prejudice from the delay, there is no due pro-
cess violation unless the delay is so egregious as to “adversely affect the public’s
perception of the fairness and integrity of the military justice system.” United
States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006). The Government’s pro-
cessing of Appellant’s case is not a model of alacrity. We acknowledge Appel-
lant’s trial spanned six days and generated an 805-page transcript; however,
it is unclear why convening authority action required an additional 76 days
after the military judge authenticated the record on 22 September 2017. Nev-
ertheless, in the absence of cognizable prejudice to Appellant, we do not find
the delay so egregious as to adversely affect the perceived fairness and integ-
rity of the military justice system.
    Appellant suggests that even if he did not suffer a violation of due process
rights under Moreno, this court should exercise its authority under Article 66,
UCMJ, to grant some unspecified relief as a matter of sentence appropriate-
ness because of the delay. See United States v. Tardif, 57 M.J. 219, 225
(C.A.A.F. 2002). After considering the factors enumerated in United States v.
Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F.
2016), we conclude that such an exercise of our authority is not appropriate in
this case. Among other considerations, we find the delay, albeit facially unrea-
sonable, was not extreme. Although the Government could have acted faster,
we find no evidence of “bad faith,” “gross indifference,” or “institutional ne-
glect;” and the delay has not resulted in palpable prejudice to Appellant or di-
minished the disciplinary effect of the sentence. See id. Accordingly, we find no
cause to modify Appellant’s sentence because of tardy post-trial processing.




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                        United States v. Gueu, No. ACM 39380


C. Ineffective Assistance of Counsel
      1. Law
    The Sixth Amendment 3 guarantees an accused the right to effective assis-
tance of counsel. United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001). In
assessing the effectiveness of counsel, we apply the standard set forth in Strick-
land v. Washington, 466 U.S. 668, 687 (1984), and begin with the presumption
of competence announced in United States v. Cronic, 466 U.S. 648, 658 (1984)
(citation omitted). See Gilley, 56 M.J. at 124 (citing United States v. Grigoruk,
52 M.J. 312, 315 (C.A.A.F. 2000)). Accordingly, we “will not second-guess the
strategic or tactical decisions made at trial by defense counsel.” United States
v. Mazza, 67 M.J. 470, 475 (C.A.A.F. 2009) (quoting United States v. Anderson,
55 M.J. 198, 202 (C.A.A.F. 2001)). We review allegations of ineffective assis-
tance de novo. United States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011) (citing
Mazza, 67 M.J. at 474).
    We utilize the following three-part test to determine whether the presump-
tion of competence 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 advo-
          cacy “fall measurably below the performance . . . [ordinarily ex-
          pected] of fallible lawyers”?
          3. If defense counsel was ineffective, is there “a reasonable prob-
          ability that, absent the errors,” there would have been a differ-
          ent result?
Gooch, 69 M.J. at 362 (alteration in original) (quoting United States v. Polk, 32
M.J. 150, 153 (C.M.A. 1991)).
      2. Analysis 4
    Appellant personally asserts his civilian and military trial defense counsel,
Mr. DC and Major (Maj) SW, 5 failed to provide him effective assistance of coun-
sel in several respects. His arguments are supported in part by a declaration



3   U.S. CONST. amend. VI.
4 The appellate exhibits and briefs pertaining to sections II.C.2.a. and b. of this opinion
were sealed pursuant to Rule for Courts-Martial (R.C.M.) 1103A. These portions of the
record and briefs remain sealed, and any discussion of sealed material in this opinion
is limited to that which is necessary for our analysis. See R.C.M. 1103A(b)(4).
5   Maj SW was a captain at the time of trial.


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                    United States v. Gueu, No. ACM 39380


Appellant submitted to the court. At the Government’s request, this court or-
dered affidavits from Mr. DC and Maj SW. Accordingly, Mr. DC and Maj SW
submitted declarations addressing Appellant’s claims of ineffective assistance.
In general, the trial defense counsel’s declarations do not contradict Appel-
lant’s assertions of fact but rather explain the strategic and tactical decisions
the defense team made at trial. We have considered whether a post-trial evi-
dentiary hearing is required to resolve any factual disputes and are convinced
such a hearing is unnecessary. See United States v. Ginn, 47 M.J. 236, 248
(C.A.A.F. 1997); United States v. DuBay, 37 C.M.R. 411, 413 (C.M.A. 1967). We
address Appellant’s assertions in turn.
       a. Inconsistent Statements by NG
    Appellant contends his trial defense counsel failed to raise a number of in-
consistent statements NG allegedly made related to the allegations against
him, largely culled from witness statements and evidence summaries included
in the AFOSI report of investigation. In particular, Appellant alleges the fol-
lowing discrepancies:
   •   NG told AFOSI she had “blocked out” memories of multiple occasions
       on which Appellant had touched her vagina other than the one “virgin-
       ity check” she recalled in Germany in February 2015, but at trial NG
       testified to another vaginal touching that occurred in Maryland.
   •   According to NG’s friend HB, NG told HB that Appellant made NG
       “touch” Appellant, but NG never told AFOSI or testified that she
       touched Appellant sexually.
   •   According to HB, NG told HB that after the November 2015 dinner dis-
       cussion the family met with someone outside the family to discuss Ap-
       pellant’s actions.
   •   According to HB, NG told HB that NG’s mother, CG, “yelled” at Appel-
       lant after she learned he had touched NG’s breasts.
   •   NG told AFOSI that she had told yet another friend, KS, that Appellant
       had touched NG inappropriately, but KS denied NG told her this.
   •   NG initially told AFOSI that she did not notice Appellant was sexually
       aroused when he touched her, but later she told AFOSI she could feel
       that Appellant had an erection.
   •   NG told yet another friend, TH, that Appellant had forced her to break
       up with her boyfriend, AS, but according to AS he broke up with NG for
       another reason.
   •   According to AS, NG told AS that Appellant had physically hit her, but
       NG denied such physical abuse to AFOSI.


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                    United States v. Gueu, No. ACM 39380


   •   According to AS, NG told AS that she had begged Appellant to stop
       touching her inappropriately, but NG did not describe doing so in her
       statements to AFOSI or her trial testimony.
    We are not persuaded trial defense counsel’s failure to exploit these alleged
inconsistencies amounted to performance measurably below that expected of
fallible lawyers. See Gooch, 69 M.J. at 362 (citation omitted). As Mr. DC ex-
plained in his declaration, and as manifested in the record of trial, the general
defense strategy was
       to deny there was any sexual contact, to call [Appellant] to tes-
       tify, to focus on NG’s credibility where favorable, and to avoid a
       battle of the experts over grooming techniques and desensitiza-
       tion to sexual touching . . . [which] would have been potentially
       very unfavorable to [Appellant] had the government chosen to
       introduce that type of testimony.
Trial defense counsel related this strategy was consistent with the advice of
their expert consultant in forensic psychology.
    In light of this strategy, it was reasonable for trial defense counsel to avoid
delving into peripheral inconsistencies that might draw the court members’
attention to additional possible misconduct by Appellant or to references to
NG’s additional disclosures of Appellant’s abuse to other peers and friends
prior to February 2016, or that might invite expert testimony from the Gov-
ernment explaining how NG’s memory, perception, and reporting might have
been affected by Appellant’s grooming and desensitizing behavior. These deci-
sions appear particularly rational where the supposed inconsistencies did little
to contradict the core allegations against Appellant and in many cases might
reasonably be attributed to simple misunderstandings, faulty memories, or dif-
ferences in perception from among the many witnesses AFOSI interviewed in
the course of its investigation. Furthermore, at trial the Defense attempted to
exploit other inconsistencies that were more plainly evident and central to the
case, such as NG’s May 2016 AFOSI interview contradicting her prior Febru-
ary 2016 statements to AFOSI that Appellant had not penetrated her vagina.
    On the whole, we find trial defense counsel’s decisions with respect to these
alleged inconsistencies squarely within the realm of reasonable strategic and
tactical decisions that we are not disposed to “second-guess” on appeal. Mazza,
67 M.J. at 475 (citation omitted). Even considering the potential cumulative
effect of the alleged inconsistencies, we do not find trial defense counsel’s per-
formance “measurably below” that expected of defense counsel. Gooch, 69 M.J.
at 362 (citation omitted). Moreover, we are not persuaded that drawing out
these matters at trial would have created a reasonable probability of a more
favorable result for Appellant. See id.


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                       United States v. Gueu, No. ACM 39380


          b. NG’s Alternative Motivations
    Appellant contends trial defense counsel “fail[ed] to explore alternate mo-
tivations for N.G. to lie about [Appellant].” In particular, he contends NG por-
trayed Appellant as “super strict, religious, and oppressive,” as compared to
CG who was more “permissive.” In addition, Appellant notes NG had described
to her friend, AD, finding a letter from Appellant in which Appellant indicated
he desired to return alone to Africa, where Appellant had been born. 6 Finally,
Appellant suggests NG not only was bitter about Appellant interfering with
her relationship with AS—of which Appellant disapproved—by taking away
her phone but may have been motivated to protect AS by accusing Appellant
because Appellant believed AS received “nude images of [NG] that may have
been considered child pornography.”
    With respect to NG being biased against Appellant because he was the less
permissive parent, that idea was developed at trial to a significant extent. NG
testified that Appellant was the “leader” of their “fairly strict household,”
whereas her mother CG was “a more passive person . . . a little more quiet on
issues of discipline and matters like that.” CG also testified on cross-examina-
tion that Appellant “tended to be more strict [than CG], definitely.” NG, CG,
and Appellant all testified that it was Appellant who took away NG’s phone in
the autumn of 2015 which prevented NG from contacting her boyfriend, AS. In
addition, the idea that NG preferred CG to Appellant as a parent is closely
related to the Defense’s contention at trial that neither CG nor NG was a cred-
ible witness because they were allied against Appellant in long-simmering ten-
sions between the couple that devolved into a legal separation and the initia-
tion of divorce proceedings by the time of trial.
     With respect to Appellant’s letter that NG described finding, which was
included in the AFOSI report of investigation, contrary to Appellant’s assertion
it did not state that Appellant did not love NG or that he bore any animosity
toward her. It did indicate he was dissatisfied with his relationship with CG
(to whom it was addressed, although according to Appellant’s testimony never
delivered) and was contemplating returning to Africa without the rest of the
family. While potentially distressing to NG for various reasons, this undated
letter was consistent with other evidence of tensions in the marriage and fam-
ily. It is unclear how further developing NG’s awareness of this letter would
have provided an alternative motivation to lie or altered the outcome of the
trial.
   With respect to the theory that NG was motivated by a desire to protect AS
from criminal liability, Maj SW reasonably asserts in his declaration that such


6   Appellant became a naturalized United States citizen in 2001.


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                    United States v. Gueu, No. ACM 39380


evidence would likely have been prohibited by Mil. R. Evid. 412’s general pro-
hibition on evidence of a sexual assault victim’s other sexual behavior or pre-
disposition. Moreover, there is no indication in the record that AS had been
accused of or investigated for any criminal activity, much less threatened with
prosecution, thereby weakening this supposed motivation on NG’s part. At
trial, the Defense did suggest NG was biased against Appellant because he
disapproved of and interfered with NG’s relationship with AS, a more plausible
proposition and one that was better supported by the record.
    In summary, we are not persuaded that trial defense counsel failed to de-
velop plausible motivations for NG to fabricate allegations against Appellant
such that their performance fell measurably below that expected of defense
counsel or that any such failure denied Appellant the reasonable probability of
a more favorable outcome. See id.
       c. Central Registry Board Results
    Appellant asserts trial defense counsel were ineffective in failing “to intro-
duce as evidence the Central Registry Board’s determination that N.G.’s alle-
gations against [Appellant] did not meet the criteria for sexual maltreatment.”
Appellant submitted a memorandum dated 24 August 2016 addressed to him-
self and his supervisor and informing them, inter alia, that the Central Regis-
try Board (CRB) met on that date and determined the allegation of child sexual
maltreatment of NG by Appellant “did not meet the criteria for sexual mal-
treatment and entry into the [Department of Defense] Central Registry data-
base.” Mr. DC and Maj SW concede that introducing the CRB determination
at trial may have been desirable; however, they were unable to develop any
theory of admissibility, and in any event they believed the CRB results were
not truly exculpatory.
    We do not find trial defense counsel were ineffective by failing to introduce
the CRB results. “The CRB makes administrative determinations for sus-
pected domestic abuse and child maltreatment meeting DOD/AF definitions,
determinations which require entry into the AF Central Registry database.”
Air Force Instruction (AFI) 40–301, Family Advocacy Program, ¶ 2.2.4.5.1.1.
(16 Nov. 2015). The CRB is not a judicial proceeding in any sense; in fact, al-
leged offenders and any family member involved in the incident or any attor-
ney representing such an individual are specifically prohibited from attending
the CRB. Id. at ¶¶ 2.2.4.5.1.2.1., 2.2.4.5.1.2.9. Evidence that a majority of a
separate administrative body, which did not receive the evidence presented at
trial and applied a different standard of proof to answer the limited question
of whether the information presented “meets criteria” or “does not meet crite-
ria” for registration, is simply irrelevant to the court-martial proceedings. See
id. at ¶ 2.2.4.5.1.2.11.1.3.



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                    United States v. Gueu, No. ACM 39380


    Even if the CRB members had received exactly the same evidence and in-
structions as the court members and applied the same standard of proof, their
conclusions as to whether NG’s allegations were true and the Government had
proven Appellant’s guilt would still be plainly inadmissible. See, e.g., United
States v. Kasper, 58 M.J. 314, 315 (C.A.A.F. 2003) (quoting United States v.
Birdsall, 47 M.J. 404, 410 (C.A.A.F. 1998)) (additional citation omitted) (noting
expert and nonexpert conclusions as to the truthfulness of a witness “usurp[ ]
the jury’s exclusive function to weigh evidence and determine credibility” and
are prohibited). Appellant notably fails to propose any theory of admissibility
by which the CRB results might properly have been introduced at trial. Ac-
cordingly, we conclude Appellant’s assertion of ineffective assistance of counsel
with respect to the CRB determination is without merit.
D. Sentence Appropriateness
   1. Law
    We review issues of sentence appropriateness de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006) (citing United States v. Cole, 31 M.J. 270,
272 (C.M.A. 1990)). We may affirm only as much of the sentence as we find
correct in law and fact and determine should be approved on the basis of the
entire record. Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2016). “We assess sen-
tence appropriateness by considering the particular appellant, the nature and
seriousness of the offense[s], the appellant’s record of service, and all matters
contained in the record of trial.” United States v. Sauk, 74 M.J. 594, 606 (A.F.
Ct. Crim. App. 2015) (en banc) (alteration in original) (quoting United States
v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009) (per curiam)). Alt-
hough we have great discretion to determine whether a sentence is appropri-
ate, we have no authority to grant mercy. United States v. Nerad, 69 M.J. 138,
146 (C.A.A.F. 2010) (citation omitted).
   2. Analysis
    Appellant personally asserts his sentence is inappropriately severe. He
points to his service as a missionary in the years before he joined the Air Force.
Appellant also emphasizes the testimony of Dr. JF, a forensic psychologist and
the Defense’s expert consultant and witness, who advised the court members
that Appellant was in the low-risk category for recidivism. Appellant requests
that this court approve an unspecified lesser sentence. We are not persuaded
to do so.
    Appellant was convicted of committing serious sexual offenses against a
child. He exploited his position of authority to sexually assault and abuse his
adopted daughter in her bed. At trial, NG presented a statement to the court
members informing them of the negative impact Appellant’s actions have had
on her and her family, including the anxiety and mistrust she felt as a result.


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                    United States v. Gueu, No. ACM 39380


Appellant refers to his “selfless service” as an Air Force chaplain, but his argu-
ment is undercut by the testimony of a former supervisor who offered the opin-
ion that Appellant’s rehabilitation potential was “little to none” and, in partic-
ular, the supervisor’s experience that Appellant would refuse to acknowledge
or accept responsibility for Appellant’s errors, including “severe” errors. Cer-
tainly, Appellant’s assessed low risk for recidivism may weigh in his favor, and
the court members likely took it into account when imposing a term of three
years in confinement where Appellant faced a maximum term of 50 years.
    Having given individualized consideration to Appellant, the nature and se-
riousness of the offenses, Appellant’s record of service, and all other matters
contained in the record of trial, we do not find Appellant’s sentence inappro-
priately severe.

                               III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c) (2016). Accordingly, the
findings and sentence are AFFIRMED.


                     FOR THE COURT



                     CAROL K. JOYCE
                     Clerk of the Court




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