UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                             LIND, KRAUSS, and BORGERDING
                                 Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                        Sergeant First Class SHAUN P. KUHN
                            United States Army, Appellant

                                      ARMY 20120098

        Headquarters, United States Army Intelligence Center of Excellence
                                and Fort Huachuca
                        Karen W. Riddle, Military Judge
              Colonel Thomas C. Modeszto, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Jonathan F. Potter, JA;
Major Amy E. Nieman, JA; Captain Matthew M. Jones, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Robert A. Rodrigues, JA; Captain Carl L. Moore, JA (on brief).


                                         29 May 2014

                                 ----------------------------------
                                  MEMORANDUM OPINON
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

BORGERDING, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of willful disobedience of a superior commissioned officer,
violation of a lawful general regulation, and false official statement in violation of
Articles 90, 92, and 107, Uniform Code of Military Justice, 10 U.S.C. §§ 890, 892,
907 (2006) [hereinafter UCMJ]. Contrary to his pleas, a panel composed of officer
and enlisted members convicted appellant of maltreatment and wrongful interference
with an adverse administrative proceeding in violation of Articles 93 and 134,
KUHN — ARMY 20120098

UCMJ, 10 U.S.C. §§ 893, 934 (2006).  The panel sentenced appellant to a bad-
conduct discharge, confinement for 180 days, forfeiture of all pay and allowances,
and reduction to the grade of E-1. The convening authority approved the adjudged
sentence.

      This case is before the court for review under Article 66, UCMJ. Appellant
assigns two errors, one of which merits discussion but no relief. We have also
considered those matters personally raised by appellant pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), and find they are without merit.

                                       FACTS

        Specialist (SPC) AJ was a member of the Army National Guard. In November
2010, SPC AJ arrived at Goodfellow Air Force Base (AFB) and reported to
Advanced Individual Training (AIT) to become a 35N, Signal Intelligence Analyst.
Specialist AJ was not a traditional AIT student, but was a Military Occupational
Specialist Transfer or MOS-T and as such, she was “considered a squad leader” for
the AIT students. Consequently, she was not allowed to have contact other than
professional interactions with the AIT students. Similarly, she was not allowed to
have non-professional contact with the permanent party cadre because of her student
status.

       Appellant was a cadre member in SPC AJ’s AIT platoon. In December 2010,
appellant began sending texts to SPC AJ on her phone. Specialist AJ testified that,
with one exception, the texts were all professional at first. Nevertheless, on one
occasion in January 2011, appellant cornered SPC AJ in an empty classroom, hugged
her, and kissed her.

       In February 2011, appellant was transferred to the Warrior Training Team
with duty at a Field Training Exercise (FTX) site “in the far reaches” of Goodfellow
AFB. However, appellant would still drive around the main area of the base,
“showing up” wherever SPC AJ happened to be and following her everywhere she
went. She testified that it got to the point where she stopped working out trying to
avoid him. Appellant would tell SPC AJ that he was watching her and then “make it
a game” by trying to make her guess where he was located. On one occasion,
appellant texted SPC AJ that he was watching her as she walked to a house and that
he could see what she was doing inside. Appellant then asked her to come outside.
Specialist AJ told appellant, “no,” and made sure all of the blinds were shut and the
doors were locked. Appellant told SPC AJ that he could get into the house and that
if she said, “no,” he would “still have control over [her] platoon and that he was able


 The panel acquitted appellant of rape, wrongful sexual contact, and forcible
sodomy, violations of Articles 120 and 125,UCMJ, 10 U.S.C. §§ 920, 925 (2006 &
Supp. IV 2011).


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KUHN — ARMY 20120098

to make [her] soldiers have a miserable time . . . and that he would tell different
sergeants that they were bad soldiers and they would reap the repercussions.” This
convinced SPC AJ to go outside to meet appellant. On another occasion, appellant
asked SPC AJ to let him into her barracks room, but she lied and told him that her
roommate was there.

       After approximately two weeks, appellant would only follow SPC AJ
sporadically, which she testified was worse because she was left “wondering what
was going to happen, where he was, if I was walking next to him and didn’t notice at
the time.” Also during this time, appellant sent SPC AJ thousands of text messages,
many that were sexually explicit and graphic, including one text which contained a
photo of his penis.

       While at the FTX site, appellant would task SPC AJ to play “roles” during
exercises, resulting in her being alone at times, which allowed appellant to hug her
or try to kiss her neck. During this time, appellant would tell SPC AJ that various
cadre members did not like her or thought she was a “bad soldier,” and thus she did
not report any of appellant’s actions. Specialist AJ testified she “felt trapped” but
was hoping to graduate soon and return to her National Guard unit.

      Of her time with appellant, SPC AJ testified:

             I think I was stuck in a sort of snow globe that I had no
             way of seeing out of, that everything [appellant] had
             created a bond with me in the beginning as a mentor, so I
             had respect for him, and as everything progressed between
             us, for me at that time in the Army, I felt like that’s just
             something I had to deal with. As a female in the military,
             I thought you just deal with it until you get away and you
             hold it off the best you can because sexual harassment
             happens all the time.

       As part of its case in aggravation, the government called appellant’s company
commander, Captain (CPT) BS, to testify as to appellant’s duty performance.
Captain BS told the panel that prior to appellant’s misconduct, his duty performance
was “satisfactory,” but after the allegations came to light, appellant’s performance
“diminished.” Nevertheless, CPT BS gave appellant a “seven to eight” on the
rehabilitative potential scale. In response to a question from a panel member, CPT
BS elaborated on this saying: “I believe he can be rehabilitated and put back into
society after being held accountable for his actions. . . . a man can be rehabilitated
through appropriate treatments or correctional facilities and be put back into society
and still function in society.”




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KUHN — ARMY 20120098

      Appellant called three witnesses in his case in extenuation and mitigation, all
of whom testified as to appellant’s excellent duty performance, particularly during
deployments. In rebuttal to this testimony, the government recalled CPT BS to
“expand upon” appellant’s duty performance before and after his misconduct.
Captain BS again told the panel that after appellant was under investigation, his
performance “diminished,” and that “he [was] of very little value” to the
organization. Captain BS indicated that the reasons for this opinion were appellant’s
mental health issues as well as child care issues. Although defense counsel made
two objections to CPT BS’s rebuttal testimony, both of which were sustained, he did
not object at all to this particular testimony.

       Appellant gave a short unsworn statement, during which he referred three
times to his association with SPC AJ as a “relationship.” In response to this
characterization, the assistant trial counsel made the following assertion during her
sentencing argument:

             You’ve seen all of the evidence at this point. Compare
             that statement. Compare his acceptance of responsibility
             with what has been presented before you today. Compare
             that to the graphic text messages, to the photos, to him
             shoving his penis in her mouth. Compare that to him
             saying, “We had a romantic relationship with text
             messages and phone calls, that’s how I violated a
             regulation.”

             Today, he said he’s sorry for his bad judgment, for letting
             his emotions lead him to a mistake--a mistake, which was
             caveated; he is still a leader. He just made a single
             mistake. This is a man who needs specific deterrence.
             He’s proven to you that he just doesn’t grasp the pure
             criminality of his behavior. He doesn’t even understand
             that this was misconduct. He considers it to be an
             inappropriate decision. He considers it to be a single
             solitary mistake. This shows you that he has a total
             disregard for the rules and regulations that apply to
             service and he has no understanding of what he managed
             to do to Specialist [AJ].

      Assistant trial counsel went on to argue:

             The fact is he broke that girl. He tore her down, he
             destroyed her spirit, keeping her in isolation, under
             surveillance, oppressive, extreme--he was aggressive and
             flat-out vulgar towards that girl--that junior enlisted



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KUHN — ARMY 20120098

             service member for 120 days. . . . This was her prison for
             120 days.

             ---

             Specialist [AJ] lived in her prison for 120 days. For four
             months. I argue for you that a minimum of one year for
             every month of that oppression is an appropriate sentence.
             A minimum of four years for that--for the maltreatment of
             Specialist [AJ] in such a grossly vulgar and pervasive
             manner     an    appropriate    response--an   appropriate
             sentence . . . Four months--I argue four years minimum is
             the most appropriate sentence for the maltreatment.

      She continued:

             So, I’m going to leave it to you to figure out the
             appropriate sentence for lying to a commissioned officer
             and a first sergeant, for disobeying a company
             commander, for convincing a junior service member to do
             the same; to lie to a commissioned officer, and for
             multiple violations of a general regulation that
             demonstrates a true disregard as to its purpose and intent.
             And he did that to satisfy his own personal desires. An
             inappropriate decision or four months—four months of
             consistent behavior that is absolutely contrary to the honor
             and integrity of an NCO.

        During assistant trial counsel’s sentencing argument, she also highlighted that
CPT BS testified appellant “will likely be able to rehabilitate into society.”
Assistant trial counsel did not mention CPT BS’s opinion that appellant was “of
little value” or the reasons behind this opinion.

     Appellant’s civilian defense counsel did not object at all to trial counsel’s
argument. Instead, he argued:

             He did not act like an NCO for four months. He did not
             act like a leader for four months. He shamed us all for
             four months. Take your four months back. Right now you
             represent the United States Army. Take the four months
             back. Put him in confinement for four months. Take your
             four months back.




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KUHN — ARMY 20120098

       Appellant asserts three separate errors, arising from CPT BS’s rebuttal
testimony and assistant trial counsel’s sentencing argument, that appellant argues
amount to plain and obvious errors that materially prejudiced his substantial rights.
First, he avers that assistant trial counsel improperly referred to him “shoving his
penis in [SPC AJ’s] mouth” even though he had been acquitted of forcible sodomy.
Second, without further discussion, appellant takes issue with the fact that “[t]he
government elicited testimony that [appellant] was no longer an asset because of his
mental health and child-care issues.” Finally, appellant notes that assistant trial
counsel asked the panel to sentence appellant to four times the maximum allowable
amount of confinement for maltreatment.

                               LAW AND ANALYSIS

                                Improper Testimony

       Because appellant did not object to the portions of CPT BS’s testimony he
now claims were improper, we will apply a plain error analysis. United States v.
Eslinger, 70 M.J. 193, 197-98 (C.A.A.F. 2011) (“Failure to object to the admission
of evidence at trial forfeits appellate review of the issue absent plain error.”).
Appellant bears the burden of demonstrating that: “(1) there was error; (2) the error
was plain, clear, or obvious, and (3) the error materially prejudiced one of his
substantial rights.” United States v. Fisher, 67 M.J. 617, 620 (Army Ct. Crim. App.
2009); see also United States v Powell, 49 M.J. 460, 463-65 (C.A.A.F. 2008).

       We find that CPT BS’s rebuttal testimony regarding appellant’s duty
performance subsequent to his misconduct was properly offered to rebut the good
duty performance evidence offered by the defense witnesses. See United States v.
Brewer, 43 M.J. 43 (C.A.A.F. 1995); Rule for Courts-Martial 1001(b)(5)(A), (d). To
the extent that CPT BS’s brief testimony regarding appellant’s mental health and
child care obligations could be construed as improper or irrelevant, we still do not
find any error to be plain, clear, or obvious. See generally Fisher, 67 M.J. at 620.

       Even assuming plain or obvious error, we find no material prejudice to
appellant’s substantial rights. “We test the erroneous admission . . . of evidence
during the sentencing portion of a court-martial to determine if the error
substantially influenced the adjudged sentence.” Eslinger, 70 M.J. at 200-01
(quoting United States v. Griggs, 61 M.J 402, 410 (C.A.A.F. 2005)). Any possible
error in CPT BS’s rebuttal testimony did not substantially influence the adjudged
sentence for the following reasons. First, CPT BS also gave a favorable opinion as
to appellant’s rehabilitative potential during his testimony in the government’s case
in aggravation, and it was this favorable opinion, not the rebuttal testimony, that
assistant trial counsel highlighted in her sentencing argument. Second, appellant
himself raised his mental health issues in his unsworn statement and in the video of
his statement to law enforcement authorities, both of which were admitted without



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KUHN — ARMY 20120098

objection during the prosecution’s case in chief. Finally, the military judge properly
instructed the panel that whether or not appellant should “receive a punitive
discharge or any other authorized legal punishment is a matter for you alone to
decide in the exercise of your independent discretion based on your consideration of
all the evidence.”

       Accordingly, we hold appellant has failed to meet his burden to establish all
three prongs of the plain error test with respect to CPT BS’s testimony.

                                  Improper Argument

       Appellant also did not object at any time to assistant trial counsel’s
sentencing argument. Thus, we review “the propriety of the argument for plain
error.” United States v. Halpin, 71 M.J. 477, 479 (C.A.A.F. 2013) (citing United
States v. Marsh, 70 M.J. 101, 104 (C.A.A.F. 2011)). Under plain error review,
appellant must prove “(1) there was an error; (2) it was plain or obvious; and (3) the
error materially prejudiced a substantial right.” Marsh, 70 M.J. at 104 (quoting
United States v. Erickson, 65 M.J. 221, 223 (C.A.A.F. 2007)).

       We find no plain or obvious error in the assistant trial counsel’s sentencing
argument. We focus not “on words in isolation, but on the argument as ‘viewed in
context.’” United States v. Baer, 53 M.J. 235, 238 (C.A.A.F. 2000) (quoting United
States v. Young, 470 U.S. 1, 16 (1985)).

       With respect to her use of the phrase “shoving his penis in her mouth,” we
find that assistant trial counsel did not “assert that [appellant] could and should still
be punished for crimes of which he had just been acquitted,” as appellant claims in
his brief. To the contrary, her comment was meant as an example of appellant’s
maltreatment of SPC AJ—along with the graphic and inappropriate text messages
and photos—in order to illustrate a contrast to appellant’s description in his unsworn
statement of their “relationship.” In short, assistant trial counsel’s argument was
that appellant needed “specific deterrence” because he did not appreciate the
gravamen of his crimes against SPC AJ. We find this assertion to be within the
limits of a proper sentencing argument.

       Assistant trial counsel’s argument that appellant should be sentenced to four
years confinement for maltreating SPC AJ, when maltreatment carries a maximum of
only, inter alia, one year of confinement is more problematic. Manual for Courts-
Martial, United States (2008 ed.), pt. IV, ¶ 17.e. However, after a review of the
assistant trial counsel’s argument as a whole, we conclude that while her comments
regarding her punishment recommendation may have been inartful, she did not focus
solely on the specification alleging maltreatment under the Uniform Code of
Military Justice during her entire argument. This is evidenced by the end of her
argument, when, after describing all of the misconduct for which appellant had been



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convicted during the same period of time—to include his false official statement,
willful disobedience of a superior commissioned officer, and violation of a lawful
general regulation—she referenced appellant’s “four months of consistent behavior
that is absolutely contrary to the honor and integrity of an NCO” and urged the panel
“to get to the appropriate sentence.” Accordingly, we find no plain or obvious error
in this argument.

       Even assuming we were to find plain or obvious error with one or both of
these arguments, we conclude appellant has failed to meet his burden to demonstrate
a material prejudice to his substantial rights. To make this determination, we have
examined the “Fletcher factors,” articulated in United States v. Fletcher, 62 M.J.
175, 184 (C.A.A.F. 2005), as applied in the context of an allegedly improper
sentencing argument. United States v. Frey,          M.J.     , slip. op. at 9 (C.A.A.F.
19 May 2014) (citing Halpin, 71 M.J. at 480). In Fletcher, our superior court
instructed us that the “best approach [in assessing prejudice] involves a balancing of
three factors: (1) the severity of the misconduct, (2) the measures adopted to cure
the misconduct, and (3) the weight of the evidence supporting the conviction.”
62 M.J. at 184; see also Frey,       M.J.    , slip. op. at 9. We consider whether “trial
counsel’s comments, taken as a whole, ‘were so damaging that we cannot be
confident that [the appellant] was sentenced on the basis of the evidence alone.”
Frey,      M.J.   , slip. op. at 8-9 (quoting Halpin, 71 M.J at 480) (alteration in
original).

       Assistant trial counsel’s brief reference to appellant “shoving” his penis in
SPC AJ’s mouth is one line in a six-page argument and, as noted above, was not a
request for the panel to punish appellant for an act of which he was acquitted.
Likewise, even were we to assume that assistant trial counsel argued for a sentence
of four years confinement for one specification of maltreatment, appellant stood
convicted of several other charges and specifications, and the maximum confinement
authorized for all of these convictions was eighteen years, well above the four years
requested by assistant trial counsel. Moreover, defense counsel argued that the
panel should “take your four months back” and sentence appellant to four months
confinement. The panel’s sentence to confinement of 180 days reflects that they
agreed with defense counsel’s views. See Baer, 53 M.J. at 238 (“In view of the
relative lightness of the sentence which appellant received, we believe that his
substantial rights were not materially prejudiced by the imperfections in his
sentencing hearing.”). Thus, “[e]ven assuming a deliberate strategy to indulge in
improper argument,” assistant trial counsel’s “effort to ‘cultivate a severe sentence
did not bear fruit.’” Id. (quoting United States v. Ramos, 42 M.J. 392, 397
(C.A.A.F. 1995). Any conceivable error here is certainly not severe. See generally
Fletcher, 62 M.J. at 184-85.

       The military judge did not issue any curative instructions specifically relating
to these alleged errors. See generally id. at 185. However, the military judge did



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KUHN — ARMY 20120098

give proper sentencing instructions at the close of evidence. Specifically, she
informed the panel that “the maximum punishment that may be adjudged in this case
[was] reduction to the grade of E-1, forfeiture of all pay and allowances,
confinement for 18 years, and a dishonorable discharge,” and she gave the panel the
standard instructions that appellant was to be “sentenced only for the offenses of
which he has been found guilty,” and that they should adjudge “a single sentence for
all offenses of which [appellant] has been found guilty.”

       Finally, the evidence supporting appellant’s sentence was strong and any
potential improper comment was “surrounded by powerful and proper sentencing
argument.” Frey,        M.J.    , slip. op. at 15. As assistant trial counsel argued:
“[H]e broke that girl. He tore her down, he destroyed her spirit, keeping her in
isolation, under surveillance, oppressive, extreme--he was aggressive and flat-out
vulgar towards that girl--that junior enlisted service member for 120 days.” Despite
the fact that he was a cadre member charged with training AIT students, appellant
sent SPC AJ thousands of texts, many of which were vulgar, grossly inappropriate,
unprofessional, and sexually explicit. He followed SPC AJ everywhere she went, to
the point that she stopped working out, stayed inside, and felt she constantly had to
look for him so she could know where he was and whether he was watching her.
These texts and phone calls led to appellant’s unwanted attention toward SPC AJ at
the FTX site when he would get her alone so he could touch her or try to kiss her.
By this point, SPC AJ testified that she simply resigned herself to this treatment
saying that “[a]s a female in the military, I thought you just deal with it until you get
away and you hold it off the best you can because sexual harassment happens all the
time.” In addition, appellant compounded his misconduct when he lied to his first
sergeant about his “relationship” with SPC AJ, and when he willfully violated the no
contact order issued by his company commander by immediately contacting SPC AJ
and telling her to lie to the commander and the first sergeant when asked about his
behavior.

       As in Halpin and Frey, the “‘weight of the evidence amply supports the
sentence imposed by the panel’” and thus, appellant “has failed to demonstrate he
was not sentenced on the basis of evidence alone.” Frey,     M.J.    , slip. op. at 15
(quoting Halpin, 71 M.J. at 480). Appellant faced a sentence to, inter alia, eighteen
years confinement and a dishonorable discharge. He was sentenced to, inter alia,
only 180 days confinement and a bad conduct discharge. Accordingly, we also find
no material prejudice to appellant’s substantial rights.

        Finally, we have also considered “the cumulative impact” of all alleged
improper arguments and alleged elicited improper testimony in the context of the
trial as a whole, and find that the first and third Fletcher factors weigh so heavily in
favor of the government that we are confident appellant was sentenced on the basis
of the evidence alone. See Halpin, 71 M.J. at 480.




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KUHN — ARMY 20120098

                              CONCLUSION

    The findings of guilty and the sentence are AFFIRMED.

    Senior Judge LIND and Judge KRAUSS concur.


                                  FOR THE
                                  FOR THE COURT:
                                          COURT:




                                  MALCOLM
                                  MALCOLM H.  H. SQUIRES,
                                                 SQUIRES, JR.
                                                           JR.
                                  Clerk of Court
                                  Clerk of Court




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