UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                          BURTON, HAGLER, and SCHASBERGER
                               Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                           Private E1 VICTOR D. WILSON
                            United States Army, Appellant

                                      ARMY 20160342

                          Headquarters, Fort Leavenworth
                       Charles L. Pritchard, Jr., Military Judge
                   Colonel Craig E. Merutka, Staff Judge Advocate


For Appellant: Captain Zachary A. Gray, JA (argued); Colonel Mary J. Bradley, JA;
Major Christopher D. Coleman, JA; Captain Patrick J. Scudieri, JA (on brief);
Lieutenant Colonel Tiffany M. Chapman, JA; Major Todd W. Simpson, JA; Captain
Zachary A. Gray, JA (on brief and reply brief in response to specified issues)

For Appellee: Captain Jonathan S. Reiner, JA (argued); Lieutenant Colonel Eric K.
Stafford, JA; Major Michael A. Korte, JA (on brief); Lieutenant Colonel Eric K.
Stafford, JA; Major Michael A. Korte, JA; Captain Jonathan S. Reiner, JA (on brief
in response to specified issues).


                                         22 June 2018
                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

SCHASBERGER, Judge:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of assault consummated by a battery upon
a child under the age of sixteen and one specification of committing an indecent act
upon a child under the age of sixteen in violation of Articles 128 and 134 Uniform
Code of Military Justice, 10 U.S.C. §§ 928, 934 (2006) [UCMJ]. The convening
authority approved the adjudged sentence of a dishonorable discharge and
confinement for eight years.
WILSON—ARMY 20160342

       This case is before us for review under Article 66, UCMJ. Appellant assigns
four errors through counsel 1 and personally asserts multiple additional errors
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). One of the
assigned errors and several of the personally asserted errors 2 involve allegations of
ineffective assistance of counsel. In order to ensure we properly understood
appellant’s full ineffective assistance of counsel claim, we invited appellant to
expand on his original allegations of error. After a review of the record, including
supplemental briefs, oral argument, and affidavits from the trial defense counsel, we
find the decisions of the trial defense counsel reasonable and affirm the findings and
sentence.

                                   BACKGROUND

       In the summer of 2007, YH-J was eight years old and lived with her family on
Fort Polk, Louisiana. Her neighbor and sometimes babysitter was appellant’s wife,
KW. Appellant, appellant’s wife, and YH-J’s parents, Staff Sergeant (SSG) B and
KB, were all friends and frequently spent time together. The families remained
friends in the years after both families moved from Fort Polk.

        YH-J’s stepfather, SSG B, had various ailments, which culminated in several
trips to the hospital in the summer of 2007. One such trip happened on 8 June 2007,
and another occurred in July 2007. On one occasion that summer, SSG B went by
ambulance to the hospital. That night, KB brought YH-J and her four-year-old sister
over to appellant’s house. YH-J did not want to stay at appellant’s house and




1
 Appellant’s first three assignments of error all involve the government’s expert
witness, which we address in our opinion and footnote 4, infra. Appellant’s fourth
assignment of error claims the military judge erred by failing to merge the
Specification of Charge I and Specification 2 of Charge II as an unreasonable
multiplication of charges. On the facts of this case, we do not find an unreasonable
multiplication of charges in the government charging appellant with an assault on a
child under the age of sixteen and then committing a lewd act on a the same child.
“What is substantially one transaction should not be made the basis for an
unreasonable multiplication of charges against one person.” Rule for Courts-Martial
307(c)(4). We considered the five factors set out in the United States v. Quiroz, and
conclude there was not an unreasonable multiplication of charges. 55 M.J. 334, 338-
39 (C.A.A.F. 2001).
2
    We reviewed the remaining Grostefon matters and find they are without merit.




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WILSON—ARMY 20160342

begged her mother not to leave her. Her mother did not know why YH-J was making
a fuss and left her at appellant’s house. 3

       YH-J testified she and her sister slept on a blow-up mattress in appellant’s
dining room. That night appellant grabbed YH-J by the arm and led her to the living
room. While in the living room he sat her down on the couch, stuck his hand down
her pants and digitally penetrated her vagina. YH-J did not tell anyone about the
assault.

       In 2012, YH-J’s family went to visit appellant’s family while on a vacation in
Orlando, Florida. When they arrived at appellant’s house, YH-J did not want to go
inside. With no context for YH-J’s behavior, KB told her to stop being rude and
made her go into the house. The following year, YH-J again refused to get out of
the car at appellant’s house; this time because YH-J’s grandparents were in the car,
YH-J was allowed to remain in the car.

       In 2014, when YH-J was fifteen years old, she told her mother about appellant
assaulting her. YH-J’s account resonated with KB as it put into perspective YH-J’s
previous behavior that KB witnessed. KB remembered the one time she had dropped
YH-J and her sister to stay at appellant’s but did not remember the exact date. KB
looked at SSG B’s medical records and determined that the date was 8 June 2007.
KB reported YH-J’s allegations to the police.

       At trial, everyone agreed that YH-J and her sister spent the night at
appellant’s house when SSG B went to the hospital in an ambulance. YH-J had no
recollection of the exact date, but had some idea of the time of year and her own age
at the time. There was some inconsistency in the testimony as to whether the
ambulance trip occurred when SSG B had surgery or a bile obstruction. The
obstruction occurred on 8 June 2007 and the stomach surgery occurred on 23 July
2007. Neither government nor defense introduced SSG B’s medical records at trial.

       The defense theory at trial was that appellant could not have committed the
assault during the time alleged because he was generally never around due to his

3
  Specification 1 of Charge II alleged appellant, on a previous occasion, committed
an indecent act on YH-J by placing his penis on her buttocks. YH-J testified that
she went to appellant’s house to use the swimming pool. Appellant entered the room
where she was changing into her bathing suit, had her face the corner and rubbed his
penis on her buttocks. At trial YH-J was vague when this occurred and, while she
testified appellant committed this act, she felt but did not see appellant’s penis. The
defense theory was the pool had been destroyed before the alleged time period and
there was no evidence appellant touched YH-J with his penis. The military judge
found appellant not guilty of this specification.



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WILSON—ARMY 20160342

work and field exercises, and specifically not around on 8 June 2007. Defense
counsel attempted to introduce evidence to show that appellant was rarely home, and
when he was home there were a lot of other people around. The second part of the
defense strategy focused on impeaching YH-J, pointing out inconsistencies in
previous statements and the holes in her memories. Defense also got the government
expert, Dr. Kennedy, to agree that just because YH-J suffered trauma it did not mean
the trauma was caused by appellant.

       The key witness for the defense was the appellant’s wife, KW. KW testified
that appellant was at basic noncommissioned officer’s course (BNCOC) and not at
the house on 8 June 2007. She also testified that YH-J and her sister did not sleep
downstairs at appellant’s house, but instead slept upstairs in a bedroom, and that
there was no way an assault could have happened as she is a very light sleeper and
would have heard any noise from downstairs. KW was impeached on cross-
examination on several grounds, including her telephone discussions with appellant,
at a time he was incarcerated for a different offense, about the contents of KW’s
testimony at trial.

      In rebuttal, the government introduced evidence that BNCOC was not a
residential course during that general time frame at Fort Polk.

                             LAW AND DISCUSSION

      To establish an ineffective assistance of counsel claim, which we review de
novo, an appellant must show: “his counsel’s performance fell below an objective
standard of reasonableness; and [] the counsel’s deficient performance gives rise to a
‘reasonable probability’ that the result of the proceeding would have been different
without counsel’s unprofessional errors.” United States v. Akbar, 74 M.J. 364, 371
(C.A.A.F. 2015) (citing Strickland v. Washington, 466 U.S. 668, 688 (1984)).

      When we evaluate the first Strickland prong, we “must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Strickland, 466 U.S. at 689. Appellant has the burden to
show that “counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Harrington v.
Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 687).

       As to our evaluation of the prejudice prong of the Strickland test, we must
determine “whether, absent counsel’s errors, there is a reasonable probability the
factfinder would have had a reasonable doubt as to appellant’s guilt.” Strickland,
466 U.S. at 695. A reasonable probability “is a probability sufficient to undermine
the confidence in the outcome.” Id. at 694. Merely demonstrating error is not
sufficient; appellant must show that the defense counsel’s errors were so “serious as
to deprive the defendant of a fair trial whose result is reliable.” Id. at 687.



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WILSON—ARMY 20160342

       On appellate review, there is a strong presumption that counsel was
competent. Thus, appellant “must rebut the presumption by pointing out specific
errors made by his defense counsel which were unreasonable under prevailing
professional norms.” United States v. Weathersby, 48 M.J. 668, 670 (Army Ct.
Crim. App. 1998)(citing United States v. Cronic, 466 U.S. 648 (1984)); see also
United States v. Grigoruk, 56 M.J. 304, 306-07 (C.A.A.F. 2002)(citing Strickland,
466 U.S. at 689).

       Appellant claims his counsel were ineffective in three ways: 1) failing to
object to Dr. Kennedy’s inadmissible testimony; 2) failing to introduce SSG B’s
medical records; and 3) failing to present publically available information about
BNCOC. We disagree and address each allegation in turn.

                            A. Dr. Kennedy’s Testimony 4

       Appellant’s assertion that defense counsel were deficient by failing to object
to Dr. Kennedy’s testimony is unpersuasive. First, Dr. Kennedy’s testimony was
within the scope of her expertise. Second, given a judge-alone trial, defense
counsel’s tactical decision not to object to Dr. Kennedy’s testimony was reasonable.

       The government qualified Dr. Kennedy as an expert in the fields of forensic
child psychology and neuropsychology. During the course of her testimony she
discussed general concepts based on her expertise and specific behaviors she

4
  In his assigned errors, appellant argued the military judge erred by allowing the
government’s expert witness, Dr. Kennedy, to act as a human lie detector and that
the military judge abandoned his gatekeeper role by allowing unscientific testimony.
We disagree. Doctor Kennedy made clear that she was not testifying as to whether
the victim was telling the truth. Insofar as her testimony could be interpreted as a
comment on the victim’s believability, the military judge stated that “the court notes
that it does not consider Dr. Kennedy’s testimony about [YH-J’s] memories to mean
that the memories reflect actual events and are therefore true. Dr. Kennedy cannot
see into [YH-J’s] past.”

In this judge-alone case, we find that the military judge’s statement to be akin to the
curative instructions we expect from a military judge when there is a panel. The
defense cites United States v. Jackson for the proposition that this curative statement
is not enough. 74 M.J. 710, 714 (Army Ct. Crim. App. 2015). We find the rationale
of our superior court in United States v. Robbins as more on point and persuasive,
especially given the military judge’s disclaimer. 52 M.J. 455, 457 (“A military
judge is presumed to know the law and apply it correctly, is presumed capable of
filtering out inadmissible evidence, and is presumed not to have relied on such
evidence on the question of guilt or innocence.”).



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WILSON—ARMY 20160342

witnessed from six meetings with YH-J and observing YH-J in court. She discussed
the formation of memories and how the brain encodes them. Finally, she testified as
to various reasons why children might delay reporting an event. Though Dr.
Kennedy used the phrase “autobiographical memory” and pointed to YH-J using
phrases such as “I felt”, “I heard, I saw, I felt inside,” Dr. Kennedy did not tie those
phrases to specific events. Nor did Dr. Kennedy testify that she believed YH-J was
telling the truth, or was even correct in her memories, or that the memories were
accurate. As an expert, who provided a foundation for her expertise and
observations, her testimony was within the allowable evidence permitted under
Military Rule of Evidence [Mil. R. Evid.] 702. 5

       In his affidavit supplied to this court, trial defense counsel explains at length
why he did not object to Dr. Kennedy’s testimony. First, he knew the substance of
her testimony as the defense had an expert consultant who was familiar with Dr.
Kennedy’s qualifications and the areas to which she would testify. Second, the
defense’s consultant agreed with Dr. Kennedy’s testimony and that it was “soundly
based” in her fields of expertise. In short, defense counsel did not object because
there was no tactical reason for so doing. We find counsel’s stated reasons for not
objecting to Dr. Kennedy’s testimony reasonable.

         While the defense counsel’s explanation of his decision not to object during
Dr. Kennedy’s testimony was reasonable, it is harder to understand the defense
counsel’s failure to object during closing argument when the government
mischaracterized what Dr. Kennedy said. Specifically, government counsel argued
“. . . and then Dr. Kennedy that talked extensively about the formation of memories
and how that makes [YH-J] believable. That makes what happened to her
believable.” However, this failure to object, even if deficient, was not prejudicial as
the military judge sua sponte stated that he would not consider Dr. Kennedy’s
testimony about YH-J’s memories to mean that the memories were true.

                  B. Failure to Introduce SSG B’s Medical Records

       At first blush it might appear that defense counsel’s failure to introduce SSG
B’s medical records was deficient. A further review illustrates that it was a tactical
decision that closed one avenue of attack, but enabled another. The defense could
have introduced the medical records and argued that, if the assault happened, it
occurred on 23 July 2007, or a month outside the charging window. The issue then

5
  In his affidavit, the trial defense counsel stated that after Dr. Kennedy testified he
discussed the testimony with his expert consultant. The defense expert informed
defense counsel that Dr. Kennedy’s testimony was soundly based in science. The
defense expert provided the defense with questions to cross-examine Dr. Kennedy as
to the limits of her testimony.



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WILSON—ARMY 20160342

would have been whether a month difference constituted a fatal variance to the
charged specifications. If the military judge allowed four weeks to fall within the
“between on or about” language the defense would lose its alibi defense. 6

       We therefore ask ourselves, was it reasonable for the defense to conclude the
military judge would simply expand the charged time frame to encompass an
additional four weeks? We answer in the affirmative.

       The government charged appellant with grabbing the arm of YH-J and
committing an indecent act on YH-J, between on or about 13 May 2007 and 23 June
2007. Though both events happened on a single night, the government chose to
charge a window of time, in fact a non-exact window. As the military justice system
is a notice pleading jurisdiction this charging decision is permissible. See generally
United States v. Fosler, 70 M.J. 225,229 (C.A.A.F. 2011).

       The words “on or about” in pleadings mean that “the government is not
required to prove the exact date, if a date reasonably near is established.” United
States v. Hunt, 37 M.J. 344, 347 (C.M.A 1993) (internal citations omitted). What is
“reasonably near” does not have a bright line rule. In Hunt “reasonably near” was
several weeks. A reasonable defense counsel could conclude that the military judge
would use his authority under R.C.M. 918(a)(1) to modify the charges and
specifications under the authority to make "exceptions and substitutions” to conform
the findings to the evidence.

       On the one hand, if the military judge found a fatal variance, appellant could
not be convicted on those charges. 7 On the other hand, if the military judge did not
find the variance fatal the defense would lose its argument that appellant could not
have committed the crime on 8 June 2007 because he was at BNCOC. Under the
circumstances, the defense made a reasonable choice.

    C. The Failure to Introduce Evidence the Appellant’s Attendance at BNCOC Made
                       an Offense Date of 8 June 2007 Impossible

       At trial, the defense theory of the case was that YH-J’s memories were wrong,
and appellant did not have the opportunity to commit the offense. Defense
introduced evidence, through several witnesses, that appellant worked all the time,
was in the field frequently, and was generally not at home. Defense also introduced
the fact that on June 8, 2007, appellant was at BNCOC. Appellant’s wife testified

6
 Defense counsel affidavits lend support to the conclusion that this was a tactical
decision, not an oversight.
7
    This does not mean that the prosecution could not prefer a new charge.



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WILSON—ARMY 20160342

that when appellant was at BNCOC he stayed in the barracks. Other than appellant’s
wife, the defense did not introduce any evidence which would show that in 2007, at
Fort Polk, attendance at BNCOC required a soldier to be away from home for the
entire time. 8

       Given the defense theory of the case, it would appear to be ineffective to fail
to introduce evidence that appellant was away at the time the offense was
committed. We therefore invited defense to supplement their appellate brief and
address this issue. In response, they have appended Appellate Defense Exhibits B,
C, and D, to establish that: appellant attended BNCOC from 29 May 2007 to 15 June
2007; per Army regulations, BNCOC was intended to be a “live-in environment,
where possible;” and the Army did not move to a web based core model until 2009.

       After reviewing the submission, we find Defense Exhibits B, C, and D do not
establish that appellant was physically away from his quarters during the relevant
time period. Though introduction of these exhibits might have made parts of
appellant’s wife’s testimony more credible, they are not dispositive. With no other
evidence that shows that appellant was in fact away from his home during the time
period, we cannot conclude that the defense counsel was deficient and that the result
of the proceeding would have been different.

                                   CONCLUSION

      On consideration of the entire record, the findings of guilty and the sentence
are AFFIRMED.

      Senior Judge BURTON and Judge HAGLER concur.

                                         FOR THE COURT:




                                         MALCOLM H. SQUIRES, JR.
                                         Clerk of Court



8
 In rebuttal, the government introduced evidence that BNCOC was not a residential
course at Fort Polk during that time frame. While the government’s witness was
credible, his knowledge was not first-hand. Due to the almost ten years between the
BNCOC class and the testimony, we do not find his testimony case-dispositive,
although it does tend to undercut the weight of the Appellate Exhibits submitted by
appellant to bolster this particular ineffectiveness claim.



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