                               CORRECTED COPY – DESTROY ALL OTHERS


             UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                             UNITED STATES

                                                         v.

                             First Lieutenant TIMOTHY R. SPIELMAN
                                        United States Air Force

                                                  ACM 38285

                                                1 August 2014

            Sentence adjudged 28 September 2012 by GCM convened at Sheppard
            Air Force Base, Texas. Military Judge: J. Wesley Moore.

            Approved Sentence: Dismissal and confinement for 1 year.

            Appellate Counsel for the Appellant: Frank J. Spinner (civilian counsel)
            (argued) and Major Matthew T. King.

            Appellate Counsel for the United States: Captain Thomas J. Alford
            (argued); Colonel Don M. Christensen; Lieutenant Colonel C. Taylor
            Smith; and Gerald R. Bruce, Esquire.

                                                      Before

                             MARKSTEINER, MITCHELL, and WEBER
                                   Appellate Military Judges

                                        OPINION OF THE COURT

                        This opinion is subject to editorial correction before final release.



MITCHELL, Senior Judge:

       A general court-martial composed of officer members convicted the appellant,
contrary to his pleas, of aggravated sexual contact, abusive sexual contact, wrongful
sexual contact, indecent exposure, indecent conduct, and assault upon a commissioned
officer, in violation of Articles 120 and 128, UCMJ, 10 U.S.C. §§ 920, 928.1 The
adjudged and approved sentence consisted of a dismissal and confinement for 1 year.

1
 The appellant was acquitted of one specification of attempted forcible sodomy, in violation of Article 80, UCMJ,
10 U.S.C. § 880.
       On appeal the appellant asserts two errors: (1) the evidence is legally and
factually insufficient and (2) trial counsel’s argument contained improper argument. At
the request of the appellant, we heard oral argument on this case on 29 May 2014.
Having reviewed the entire record of trial, the well-written briefs of counsel, and the
issues addressed at oral argument, we affirm the approved findings and the sentence.

                                        Background

        The appellant was an Air Force Academy graduate who was enrolled as a student
in pilot training at Sheppard Air Force Base, Texas. Both he and Lieutenant (Lt) RP were
members of the same pilot training flight. They had limited interaction before the night
of 2 December 2011, when the appellant’s flight received an open invitation to Lt RP’s
house to watch television. About a dozen lieutenants responded to the invitation and
showed up that night. Beer was served, and both the appellant and Lt RP drank alcohol.
The two also shared a cigar. Lt RP was married at the time, but her husband was not
present that night. The events that served as the basis for the charges all occurred after
the other members of the flight left, leaving the appellant and Lt RP alone in her home.

       Lt RP testified at trial under a grant of immunity. She explained that after
everyone left her house, the appellant asked her to participate in photos of domination
and submission, as he and a girlfriend liked to exchange such pictures. Lt RP declined to
participate, but the appellant followed her into another room, took off his flight suit, and
attempted to reassure her by saying, “That’s not so bad.” She told him to put his flight
suit back on, but he instead took off his boxers, stating, “That just happened.” She
replied, “You’ve got to be kidding me.” She did not feel threatened at this time, but
thought the situation was extremely absurd. The appellant then propped up his phone
facing Lt RP and crawled toward her. She kicked him away. She got up, picked up the
appellant’s clothes, and pushed them to him.

       The appellant grabbed Lt RP’s wrists and moved them toward his erect penis.
When she tried to push him away, he put her hands on his buttocks. She forcibly told the
appellant to get off of her and moved backwards, at which time the appellant apologized.
He then clothed himself and returned to his phone. He flipped through his phone and
noted his disappointment that they “didn’t get anything,” as if he had tried to record the
interaction. She still did not feel threatened at this time but did believe the appellant had
gone too far.

       Lt RP offered to call a flight mate or cab to give the appellant a ride home.
Instead, he again talked about his girlfriend and his desire for pictures with Lt RP. While
talking about the pictures, the appellant started to touch himself over his flight suit. He
then unzipped his flight suit, took out his erect penis, and began touching his penis in
front of Lt RP in an up and down motion. The appellant asked Lt RP about his penis


                                             2                             ACM 38285
size; she responded that it was small and he needed to put it away. Lt RP testified that by
this point, she began to feel more uncomfortable with the appellant’s behavior. The
appellant got partially dressed and sat down but continued to seek Lt RP’s approval
regarding his penis size, which she gave “to try to get him to put everything away.” He
then asked if she wanted a closer look at his penis, to which she replied no. Undeterred,
the appellant approached Lt RP and began thrusting his penis in her face. She told him to
put it away and to get away then punched the appellant in his lower stomach. She stated
that after his penis “brushe[d]” the side of her cheek, the appellant “kind of excitedly
[asked], ‘Did I get it in your mouth?’”

       The appellant began to talk to Lt RP about sexual fantasies, including fantasies
about rape and Lt RP being submissive. After she told him she was not submissive or
into rape fantasies, he began to advance toward her, repeating, “I could rape you and kill
you and nobody would know about it right now.” At that point, the appellant grabbed her
hands and pinned them to the couch. As she struggled against him, he grabbed her torso
and fell to the floor with her. Lt RP was facedown and trying to push herself up, when
the appellant wrapped his arm around her neck in a choke hold. She tried to break the
hold with her hands, but the appellant did not let go until she repeatedly hit his arm. The
appellant remained straddled over her as she flipped over in an attempt to get away.
When Lt RP saw the appellant unzipping his flight suit, she punched him in the stomach,
and he released her. She then forcibly told him to leave her house. The appellant began
to apologize again, but told Lt RP she had been giving him “signals” all night long. The
appellant then reached between Lt RP’s legs and began rubbing her vagina through her
jeans.

       The appellant made an unsworn statement at the Article 32, UCMJ,
10 U.S.C. § 832, hearing. The Government counsel from the hearing testified at the
court-martial about the appellant’s unsworn statement. His testimony is summarized
below:

      The appellant stated he had a few drinks at the Officers’ Club before the
      party at Lt RP’s home and about three beers at the party. He and Lt RP
      went outside to her backyard to smoke cigars and when they returned all
      the other guests had left. He wore his flight suit to the party and proceeded
      to remove it when he re-entered Lt RP’s home. He was wearing a t-shirt,
      boxer shorts and gym shorts underneath the flight suit. He wore the gym
      shorts because it was cold. He removed his flight suit because he was hot
      and did not want to walk across base in his flight suit and draw the attention
      of Security Forces. Lt RP joked with him that he would be cooler if he
      took off all his clothes and after some bantering, he did. At that point, he
      became embarrassed because Lt RP laughed at him. She asked him a
      question about the craziest sexual thing he had done with a girl before. He
      related that he had taken naked photos to send to a girlfriend after she sent


                                             3                            ACM 38285
         him a photo of herself topless. He then demonstrated his pose in one such
         picture for Lt RP by crawling toward her while he was naked. Lt RP
         laughed at him again, so he retrieved his clothes, dressed and left.

         Additional facts relevant to the disposition of the assigned errors are included
below.

                                  Legal and Factual Sufficiency

       The appellant contends the evidence is legally and factually insufficient to support
the findings of guilty. He focuses on four perceived shortcomings in the Government’s
evidence: prior inconsistent statements Lt RP made, her motive to misrepresent the
events in question, phone records that contradict her account of when the charged events
occurred, and other contradictory evidence.

       We may affirm only those findings of guilty that we find are “correct in law and
fact and determine[], on the basis of the entire record, should be approved.”
Article 66(c), UCMJ, 10 U.S.C. § 866(c). The test for legal sufficiency is, when the
evidence is viewed in the light most favorable to the Government, whether a rational
factfinder could have found the appellant guilty of all the elements of the offense beyond
a reasonable doubt. United States v. Reed, 54 M.J. 37, 41 (C.A.A.F. 2000) (citing
Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Turner, 25 M.J. 324
(C.M.A. 1987)). “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,’ [this Court] ‘is convinced of the [appellant]’s guilt beyond a reasonable
doubt.’” Reed, 54 M.J. at 41 (quoting Turner, 25 M.J. at 325).

       We have examined all the appellant’s proffered reasons for the alleged factual and
legal insufficiency of the appellant’s convictions, as well as conducting our own
independent review of the record of trial. Although we address only one of the issues, we
are personally convinced of the appellant’s guilt beyond a reasonable doubt and do not
find the appellant’s contentions persuasive. The appellant argues that Lt RP’s story is not
credible because she would have been able to physically defend herself due to her
extensive training in tae kwon do.2 Lt RP was a tae kwon do instructor, had reached the
level of black belt, and was on her base tae kwon do team at a prior assignment. When
asked why she could not defend herself, she answered:

         I mean, you think about it. Like, “If somebody attacks me on the street, I
         could defend myself,” or “I could totally take him.” It turns out no. No, I


2
 Tae kwon do is a Korean martial art resembling karate. See Webster's Third New International Dictionary
Unabridged (2014), available at http://unabridged. merriam-webster.com (last visited 29 July 2014).


                                                   4                                ACM 38285
       couldn’t. I don’t know if it was me just being surprised or him being strong
       or what, but it turns out no, I can’t.

       We find her explanation and self-realization convincing. Viewing the evidence in
the light most favorable to the Government, we are convinced a rational factfinder could
find beyond a reasonable doubt the appellant was guilty of the offenses. Upon our own
review of the evidence in the record of trial, we are personally convinced of the
appellant’s guilt beyond a reasonable doubt.

                                Trial Counsel’s Argument

       The appellant’s next assignment of error alleges trial counsel made improper
statements during argument. Specifically, the appellant takes issue with three aspects of
the argument: (1) disparaging comments about trial defense counsel and the appellant;
(2) improper vouching for the Government witnesses; and (3) improper personal
commentary on the evidence and injection of trial counsel’s personal beliefs.

                                 Disparaging Comments

       Whether argument is improper is a question of law we review de novo.
United States v. Marsh, 70 M.J. 101, 104 (C.A.A.F. 2011) (citing United States v. Pope,
69 M.J. 328, 334 (C.A.A.F. 2011)). Because trial defense counsel failed to object at trial,
we review the issue for plain error. See United States v. Erickson, 65 M.J. 221, 223
(C.A.A.F. 2007); United States v. Gilley, 56 M.J. 113, 123 (C.A.A.F. 2001). To prevail
under a plain error analysis, the appellant must show “(1) there was an error; (2) it was
plain or obvious; and (3) the error materially prejudiced a substantial right [of the
appellant].” Erickson, 65 M.J. at 223 (quoting United States v. Kho, 54 M.J. 63, 65
(C.A.A.F. 2000)). We find that trial counsel’s argument did not amount to plain error.

       “A trial counsel is charged with being a zealous advocate for the Government.”
United States v. Barrazamartinez, 58 M.J. 173, 176 (C.A.A.F. 2003). As a zealous
advocate, trial counsel may “argue the evidence of record, as well as all reasonable
inferences fairly derived from such evidence.” United States v. Baer, 53 M.J. 235, 237
(C.A.A.F. 2000). During argument “trial counsel is at liberty to strike hard, but not foul,
blows.” Baer, 53 M.J. at 237. Accordingly, trial counsel may not: “unduly . . . inflame
the passions or prejudices of the court members,” United States v. Clifton, 15 M.J. 26, 30
(C.M.A. 1983); inject personal opinions, facts not in evidence, or other irrelevant matters,
United States v. Schroder, 65 M.J. 49, 58 (C.A.A.F. 2007); invite punishment for
uncharged misconduct, Id.; comment upon the accused’s exercise of his or her
constitutionally protected rights, United States v. Paxton, 64 M.J. 484, 487 (C.A.A.F.
2007); or treat an accused’s duty position as a matter in aggravation absent a connection
between the member’s position and the offense, United States v. Bobby,
61 M.J. 750, 755 (A.F. Ct. Crim. App. 2005). Stated conversely, trial counsel is limited


                                             5                             ACM 38285
to arguing the evidence in the record and the inferences fairly derived from that evidence.
See Paxton, 64 M.J. at 488; United States v. White, 36 M.J. 306, 308 (C.M.A. 1993).

       The appellant argues that trial counsel made disparaging comments about trial
defense counsel when he commented on how the appellant’s unsworn statement at the
Article 32, UCMJ, hearing was only in response to questioning from his trial defense
counsel. However, this was merely comment on the evidence introduced at trial. We do
not view this comment as nefarious, but advocacy—common to trial counsel. Trial
counsel commented on the fact that the appellant made a prior statement and was not
subject to cross-examination. This is not the same as disparaging trial defense counsel by
suggesting that the defense was fabricated by the counsel. See United States v. Fletcher,
62 M.J. 175, 182 (C.A.A.F. 2005). In this case, the argument of trial counsel was well
within bounds, based on the evidence in the record, fairly derived from that evidence, and
did not improperly personally vouch for the evidence. We conclude that trial counsel’s
argument was not plain error.

        The appellant next argues that trial counsel disparaged him by calling him a liar.
However, trial counsel never called the appellant a liar; instead he referred to the
appellant’s statements as lies. For example, trial counsel argued, “What does not make
sense, what is not corroborated, what is not supported in the evidence, what’s a lie,
what’s a fabrication, what is self-serving is [the appellant’s] ever-shifting account of what
happened that night,” and “[h]e lied to match the evidence.” It is appropriate for a trial
counsel to comment on an appellant’s conflicting testimony; impropriety occurs when
trial counsel uses “language that [is] more of a personal attack on the defendant than a
commentary on the evidence.” Fletcher, 62 M.J. at 183. In a case such as this, where
Lt RP’s testimony about the events was pitted against the previous statements the
appellant made, trial counsel has some leeway to point out the lack of credibility in an
accused’s account. We find trial counsel appropriately argued the plausibility of the
appellant’s statements and did not “cross the ‘exceedingly fine line which distinguishes
permissible advocacy from improper excess.’” Id. (quoting United States v. White, 486
F.2d 204, 207 (2d Cir. 1973)). We conclude that trial counsel’s argument was not plain
error.

                           Vouching and Personal Commentary

       Next, we examine the appellant’s contention that trial counsel improperly vouched
for the Government’s witnesses and evidence and offered improper personal
commentary. “[I]mproper vouching occurs when the trial counsel ‘plac[es] the prestige
of the government behind a witness through personal assurances of the witness’s
veracity.’” Id. at 180 (alteration in original) (quoting United States v. Necoechea, 986
F.2d 1273, 1276 (9th Cir. 1993)). This “can include the use of personal pronouns in
connection with assertion that a witness was correct or to be believed.” Id. In our review
of the 43 pages of trial counsel’s findings argument, we find three instances, close in time


                                             6                             ACM 38285
to each other, when trial counsel used personal pronouns in a way that could be construed
as vouching for a witness.3 This stands in marked contrast to Fletcher, where trial
counsel’s argument amounted to plain error when, on more than two dozen occasions,
she offered personal commentary on the veracity of the testimony and evidence, and
“[s]he repeatedly inserted herself into the proceedings by using the pronouns ‘I’ and
‘we.’” See Fletcher, 62 M.J. at 181. We distinguish those facts from the minimal
references by trial counsel to his personal opinion in this case. We find that these de
minimus references to his personal opinion did not amount to plain error.

       Having reviewed the entirety of the record, we are confident the members
convicted the appellant on the basis of the evidence alone. See Id. at 184. Trial counsel’s
argument was generally appropriate, and any possible deviations from the limits of
appropriate argument did not result in “a failure to observe that fundamental fairness
essential to the very concept of justice.” See Donnelly v. DeChristoforo, 416 U.S. 637,
642 (1974) (internal quotation marks and citation omitted).

                                                   Conclusion

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

                                                  AFFIRMED.

Senior Judge MARKSTEINER participated in this decision prior to his reassignment.




                  FOR THE COURT


                  LEAH M. CALAHAN
                  Deputy Clerk of the Court




3
   The comments are: “The incredible candidness [of Lt RP] there on the court at least by my perception”; “What
you have heard in this case is one consistent account [from Lt RP]. . . . Isn’t it telling members, that when she has
this inconsistent [sic] statement to people . . . [it is to mandatory reporters]. . . . I think it is”; and “And that’s
[referencing a discrepancy raised by the defense] a small point; it’s a fine detail. Perhaps you members care about
it, perhaps you don’t. I don’t think you want to give it too much emphasis and here’s why: It’s easy to
misunderstand that point; right?”


                                                          7                                      ACM 38285
