            UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                    v.

                            Technical Sergeant FLOYD M. JETER, JR.
                                      United States Air Force

                                              ACM 38511

                                               __ M.J. __

                                               1 July 2015

           Sentence adjudged 11 July 2013 by GCM convened at Seymour Johnson
           Air Force Base, North Carolina. Military Judge: Joshua E. Kastenberg.

           Approved Sentence: Dishonorable discharge, confinement for 8 years, and
           reduction to E-1.

           Appellate Counsel for the Appellant: Major Jeffrey A. Davis and Frank J.
           Spinner, Esquire.

           Appellate Counsel for the United States: Major Daniel J. Breen;
           Major Jeremy D. Gehman; Major Mary Ellen Payne; and Gerald R. Bruce,
           Esquire.

                                                  Before

                                  ALLRED, HECKER, and TELLER
                                     Appellate Military Judges

                              PUBLISHED OPINION OF THE COURT

    ALLRED, Chief Judge:

       A general court-martial composed of officer and enlisted members convicted the
appellant, contrary to his pleas, of making a false official statement, willfully damaging
nonmilitary property, rape, and obstruction of justice, in violation of Articles 107, 109,
120, and 134, UCMJ, 10 U.S.C. §§ 907, 909, 920, 934.1 The adjudged sentence included

1
  The appellant was found not guilty of a third specification of rape, assault consummated by a battery, and
kidnapping, in violation of Articles 120, 128, and 134, UCMJ, 10 U.S.C. §§ 920, 928, 934.
a dishonorable discharge, confinement for 8 years, forfeiture of all pay and allowances,
and reduction to E-1. The convening authority approved the adjudged sentence except
for the forfeitures.

        Before us, the appellant argues (1) that the evidence is factually and legally
insufficient to sustain his convictions, (2) his trial defense counsel were ineffective by
failing to interview certain potential witnesses and failing to adequately impeach the two
alleged rape victims, and (3) unlawful command influence so permeated the proceedings
that it was impossible for him to receive a fair trial.2 Finding no error prejudicial to the
substantial rights of the appellant, we affirm.3

                                                   Background

       In 2003, the appellant married a fellow Airman. While stationed together, the
couple bought a house near Seymour-Johnson Air Force Base. By 2007, the two
remained married but had separated, and the appellant was living alone in their house. In
early December 2007, the appellant’s wife visited him at their house, and they began to
argue. When she attempted to leave, the appellant grabbed her by the hair, locked the
front door, threatened to kill her while looking for his handgun and handcuffs, pushed her
onto the living room floor, and forced her to have sexual intercourse while she cried and
said no. For this incident, the appellant was convicted of raping his wife by using power
sufficient that she could not avoid or escape the sexual conduct.

       Despite this incident, the appellant and his wife sought to mend their relationship.
In May 2008, they were at their house, and again began to argue. The appellant’s wife
fled the house, and when she returned in the company of a police officer, they discovered
the appellant had put sugar in the gas tank of her car. For this, the appellant was
convicted of willfully damaging nonmilitary property.

        In March 2009, the appellant began a relationship with a female Airman. In
September 2011, while the female Airman was staying at his home and pregnant with his
child, they had an altercation.             The appellant forced the Airman into a
partially-filled bathtub, stripped an electrical cord to bare wires, and demanded that she
hold the exposed wires. The Airman believed he was trying to drown and electrocute
her. During the ensuing investigation, the appellant lied in a written statement by saying,
“I have not in any way threatened or threatened the life of my girlfriend.” This served as
the basis for the false official statement conviction.


2
 The appellant raises this issue pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
3
  It appears from the record that the military judge failed to announce that the court was assembled. See Rule for
Courts-Martial (R.C.M.) 911 (“The military judge shall announce the assembly of the court-martial.”). While
assembly of the court-martial is significant for a variety of reasons, see R.C.M. 911, Discussion, in the present case,
we find that the military judge’s omission had no substantive effect upon the proceedings and was thus harmless.


                                                              2                                           ACM 38511
       On 3 August 2012, the appellant again argued with his Airman girlfriend. This led
to an altercation in which the appellant threatened her with physical harm, shoved her
against a wall so hard it broke the underlying sheetrock, and choked her with his forearm.
He forcibly removed her clothes and compelled her to have sex on the floor of their
bedroom despite her protests. He also forcibly penetrated her while she lay on the bed
attempting to breastfeed their infant. During this incident, he locked the bedroom door
and menaced her by slapping a metal pipe against his hand and running it over her body.
For this incident, the appellant was convicted of rape by threatening or placing the
Airman in fear that she would be subjected to death or grievous bodily harm.

      While under investigation for the offenses involving his girlfriend, the appellant
manufactured a false e-mail, purporting to be written by her and recanting allegations she
had made against him. For this, the appellant was convicted of obstructing justice.

                              Factual and Legal Sufficiency

       We review issues of legal and factual sufficiency de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). “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. Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002)
(quoting United States v. Turner, 25 M.J. 324 (C.M.A. 1987)). “The test for factual
sufficiency is whether, after weighing the evidence . . . and making allowances for not
having personally observed the witnesses, [we ourselves are] convinced of the
[appellant]’s guilt beyond a reasonable doubt.” United States v. Reed, 54 M.J. 37, 41
(C.A.A.F. 2000) (quoting Turner, 25 M.J. at 325) (internal quotation marks omitted).
“Proof beyond a reasonable doubt . . . does not mean that the evidence must be free of
conflict.” United States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986).

        The appellant argues the evidence is factually and legally insufficient to sustain
any of his convicted offenses. In doing so, he alleges there are significant inconsistencies
in the witnesses’ testimony and repeats much of what he argued during findings at trial.
After reviewing the record, weighing the evidence, and making allowances for not having
personally observed the witnesses, we are personally convinced of the appellant’s guilt
beyond a reasonable doubt and find that a reasonable factfinder could have found all the
essential elements beyond a reasonable doubt. The evidence is therefore factually and
legally sufficient to sustain the convictions. We now discuss in further detail our
justification for sustaining the conviction for willfully damaging nonmilitary property.

                            Damage to Nonmilitary Property

       Suspecting the appellant had put sugar in her vehicle’s gas tank, his wife had her
vehicle towed to an auto repair shop, where mechanics confirmed her suspicion. The


                                                3                                 ACM 38511
service manager of the repair shop testified that sugar forms a gel-like substance when
mixed with gasoline. If that substance passes through the vehicle’s fuel injectors, they
will stick and prevent the car from running. The service manager testified that, at the
time he removed the sugar from the vehicle’s tank, there had not yet been any physical
injury to the vehicle itself, as the gel-like substance had not moved out of the gas tank.
Until the sugar was removed, however, the vehicle could not be driven without causing
physical injury to the vehicle.4 This raises the question whether sugar in the tank
amounts to “damage” of the vehicle—nonmilitary property—within the meaning of
Article 109, UCMJ. We conclude that it does.

       Under Article 109, UCMJ, a crime is committed when a servicemember “willfully
or recklessly wastes, spoils, or otherwise willfully and wrongfully destroys or damages
any property other than military property of the United States.” Manual for
Courts-Martial, United States (MCM), Part IV, ¶ 33.c.(2) (2012 ed.). Through the
Manual, the President has created two offenses within the ambit of Article 109, UCMJ,
based on the type of property at issue: the wasting or spoiling of real property and the
destroying or damaging of personal property. MCM, Part IV, ¶ 33.b.(1) and (2).

        Relative to personal property, the Manual explains: (1) “Damage consists of any
physical injury to the property,” and (2) “To be destroyed, the property need not be
completely demolished or annihilated, but must be sufficiently injured to be useless for
its intended purpose.” MCM, Part IV, ¶ 33.c.(2) (emphasis added). We find this latter
provision’s reference to the property’s use for its intended purpose helpful in interpreting
the scope of the word “damage” in the present context. By definition, “damage”
encompasses “physical injury to the property,” and we hereby construe “physical injury”
to include the rendering of personal property at least temporarily useless for its intended
purpose. When reading these concepts together, for purposes of Article 109, UCMJ, we
find that “damage” consists of any physical injury to the property, to include any change
to the condition of the personal property that renders it, at least temporarily, useless for
its intended purpose.

        The foregoing analytical approach is not novel. Our superior court conducted the
same analysis and reached the same conclusion when using these same nonmilitary
property provisions to define “damage” in the context of military property under Article
108, UCMJ, 10 U.S.C. § 908. See United States v. Ortiz, 24 M.J. 164, 170-71 (C.M.A.
1987) (finding disengagement of an electrical relay in an anti-skid system on an F-15
aircraft constituted “damage,” because it rendered the aircraft temporarily useless for
flying missions); United States v. Peacock, 24 M.J. 410, 412 (C.M.A. 1987) (finding that
placing foreign objects in military equipment so as to temporarily impair its operational
readiness constituted “damage”); United States v. Daniels, 56 M.J. 365, 369 (C.A.A.F.


4
    The cost of removing the sugar from the gas tank was $200.00.


                                                             4                    ACM 38511
2002) (holding that tampering with screws on a military aircraft’s window was “damage”
where it caused the premature termination of a flying mission).

       Accordingly, we hold that the appellant’s placing sugar in the vehicle’s gas tank
amounted to “damage” within the meaning of Article 109, UCMJ—as it changed the
condition of the vehicle rendering it temporarily useless for its intended purpose. We
therefore find the evidence factually and legally sufficient to prove the appellant willfully
and wrongfully damaged the vehicle belonging to his wife.

                                 Effectiveness of Counsel

       The Sixth Amendment5 guarantees the accused the “right to the effective
assistance of counsel.” United States v. Cronic, 466 U.S. 648, 654 (1984) (quoting
McMann v. Richardson, 397 U.S. 759, 771, n.14 (1970)) (internal quotation marks
omitted). The appellant contends his trial defense counsel were ineffective by failing to
interview certain potential witnesses and by failing to adequately impeach the two alleged
rape victims.

       We review such claims de novo under the standards and two-prong test set forth
by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984).
United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009); United States v. Green,
68 M.J. 360, 361 (C.A.A.F. 2010). “In order to prevail on a claim of ineffective
assistance of counsel, an appellant must demonstrate both (1) that his counsel’s
performance was deficient, and (2) this deficiency resulted in prejudice.” Green,
68 M.J. at 361. “The burden on an appellant is heavy because counsel is presumed to
have performed in a competent, professional manner.” United States v. Quick,
59 M.J. 383, 386 (C.A.A.F. 2004). To overcome this presumption, an appellant must
show specific defects in counsel’s performance that were “unreasonable under prevailing
professional norms.” United States v. Anderson, 55 M.J. 198, 201 (C.A.A.F. 2001).

        The appellant declares via affidavit that he informed his trial defense counsel prior
to trial about two individuals who could testify on his behalf at trial, but that his trial
defense counsel failed to interview them. In a court-ordered affidavit, the appellant’s
trial defense counsel noted that both potential witnesses had told the defense paralegal
that, although they were the appellant’s roommates at the time of the alleged rape of his
wife, neither man was at home when the incident happened and the two had no
knowledge of the incident. Defense counsel explained that she decided not to call the
individuals as witnesses due to their potentially negative impact: both lacked first-hand
information about the incident, one individual had a domestic assault conviction, and the
other individual had knowledge of certain information that would assist the government
in its prosecution. The law presumes counsel’s actions to be appropriate, and we will not

5
    U.S. CONST. amend. VI.


                                                 5                                 ACM 38511
second-guess a trial defense counsel’s reasonable strategic or tactical decisions.
See United States v. Morgan, 37 M.J. 407, 410 (C.M.A. 1993). The decisions here were
reasonable. We find the appellant has not demonstrated that his counsel’s performance
was deficient, and we further conclude that even if there were any deficiency it did not
result in prejudice.

       The appellant also contends his trial defense counsel failed to adequately attack
the credibility of his wife and girlfriend during their cross-examinations. Upon careful
review of the record, including the affidavits and other matters submitted on appeal, we
find that trial defense counsel cross-examined and addressed the credibility of the women
with zeal and professionalism. We find the appellant has failed to establish his counsel
were deficient in this matter. Moreover, even were there deficiency, the appellant has
failed to establish prejudice or a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” See
Strickland, 466 U.S. at 694.

                               Unlawful Command Influence

       Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), the appellant
argues that—due to the cumulative effect of comments made by the President of the
United States, the Chief of Staff of the Air Force, a former Secretary of Defense, and
other civilian and military leaders—unlawful command influence so permeated the
Air Force at the time of his court-martial that he could not receive a fair trial. The
appellant complains, in particular, that his trial was adversely affected by pretrial public
comments from the Special Court-Martial Convening Authority. The appellant
unsuccessfully raised this motion at trial.

       Article 37(a), UCMJ, 10 U.S.C. § 837(a), states in relevant part: “No person
subject to this chapter may attempt to coerce or . . . influence the action of a court-martial
or any other military tribunal or any member thereof, in reaching the findings or sentence
in any case . . . .” Our review of this matter is “not limited to actual unlawful influence
and its effect on this trial.” See United States v. Lewis, 63 M.J. 405, 415 (C.A.A.F.
2006). The mere appearance of UCI may be “as devastating to the military justice system
as the actual manipulation of any given trial.” United States v. Ayers, 54 M.J. 85, 94–95
(C.A.A.F. 2000) (quoting United States v. Allen, 33 M.J. 209, 212 (C.M.A. 1991))
(internal quotation marks omitted). We must also ensure there is no appearance of
unlawful command influence. Our superior court has declared, “the appearance of
unlawful command influence will exist where an objective, disinterested observer, fully
informed of all the facts and circumstances, would harbor a significant doubt about the
fairness of the proceeding.” Lewis, 63 M.J. at 415.

      The burden of raising the issue of unlawful command influence rests with the
defense. United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999). On appeal, “the


                                                 6                                 ACM 38511
defense must (1) show facts which, if true, constitute unlawful command influence;
(2) show that the proceedings were unfair; and (3) show that unlawful command
influence was the cause of the unfairness.” Id. To meet the threshold for raising this
issue, trial defense counsel is required to present “some evidence” of unlawful command
influence. Id. If the defense meets that burden to raise the issue, the burden shifts to the
government, who must: “(1) disprove the predicate facts on which the allegation of
unlawful command influence is based; (2) persuade the military judge that the facts do
not constitute unlawful command influence; or (3) prove at trial that the unlawful
command influence will not affect the proceedings.” United States v. Simpson, 58 M.J.
368, 373 (C.A.A.F. 2003) (quoting Biagase, 50 M.J. at 151) (internal quotation marks
omitted). “‘Whichever tactic the Government chooses, the quantum of proof is beyond a
reasonable doubt.’” Id. (quoting United States v. Stoneman, 57 M.J. 35, 41 (C.A.A.F.
2002)).

       Where, as here, the issue is litigated on the record at trial, the military judge’s
findings of fact are reviewed under a clearly erroneous standard, but the question of
command influence flowing from those facts is a question of law that this court reviews
de novo. See United States v. Villareal, 52 M.J. 27, 30 (C.A.A.F. 1999).

       During voir dire, the military judge and counsel questioned the members at length
concerning their ability to fairly and independently decide matters before them. The
military judge gave the members detailed instructions and liberally granted challenges for
cause to eliminate any taint of unlawful command influence. We have ourselves
reviewed the entire record, including comments made by the officials in question and the
members’ responses during voir dire. The military judge’s findings of fact are amply
supported by the record and are not clearly erroneous. We need not address whether the
defense met its initial burden of production of evidence, as the military judge found
beyond a reasonable doubt—and we agree—that the statements at issue had no impact on
the appellant’s trial. We are convinced an objective, disinterested, reasonable member of
the public, fully informed of all the facts and circumstances, would not harbor a
significant doubt about the fairness of the appellant’s court-martial proceeding.
See Lewis, 63 M.J. at 415.

                                              Conclusion

       The approved findings and sentence are correct in law and fact, and no error
prejudicial to the substantial rights of the appellant occurred. 6 Articles 59(a) and 66(c),
UCMJ, 10 U.S.C. §§ 859(a), 866(c).



6
  Charge V in this case alleges a violation of Article 134, UCMJ. The court-martial order (CMO) incorrectly
describes Charge V as a violation of “Article 128.” We order promulgation of a corrected CMO.


                                                        7                                      ACM 38511
Accordingly, the approved findings and sentence are AFFIRMED.


            FOR THE COURT


            LEAH M. CALAHAN
            Deputy Clerk of the Court




                                           8                    ACM 38511
