              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.
                                 Before
              F.D. MITCHELL, J.A. FISCHER, M.K. JAMISON
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                        TAMIRA C. DICKENS
                  CORPORAL (E-4), U.S. MARINE CORPS

                            NMCCA 201300025
                        SPECIAL COURT-MARTIAL


Sentence Adjudged: 29 November 2012.
Military Judge: Col James C. Carberry, USMC.
Convening Authority: Commanding Officer, MAG-24, 1st Marine
Aircraft Wing, MCBH, Kaneohe Bay, HI.
Staff Judge Advocate's Recommendation: Capt J.A. Sautter,
USMC; Addendum: LtCol J.M. Henry, USMC.
For Appellant: LT Carrie Theis, JAGC, USN; Capt Michael
Berry, USMC.
For Appellee: LCDR Keith Lofland, JAGC, USN; LT Ann Dingle,
JAGC, USN.

                             22 April 2014

     -------------------------------------------------------
                       OPINION OF THE COURT
     -------------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

MITCHELL, Senior Judge:

     A military judge sitting as a special court-martial
convicted the appellant, contrary to her pleas, of two
specifications of disrespect towards a noncommissioned officer,
one specification of assaulting a noncommissioned officer, one
specification of failing to obey an order, one specification of
resisting apprehension, and two specifications of disorderly
conduct in violation of Articles 91, 92, 95, and 134, Uniform
Code of Military Justice, 10 U.S.C. §§ 891, 892, 895, and 934.
The military judge sentenced appellant to 195 days’ confinement,
reduction to pay grade E-1, and a bad-conduct discharge. The
convening authority (CA) approved the sentence as adjudged and,
except for the bad-conduct discharge, ordered it executed.

     In her initial brief of 8 March 2013, the appellant
submitted two assignments of error averring: (1) that the
military judge abused his discretion by failing to dismiss the
court-martial because it violated Article 23(b), UCMJ; and, (2)
that the evidence presented at trial was neither factually nor
legally sufficient to support the conviction for a violation of
Article 134, UCMJ, (Charge IV, Specification 1) where no
evidence was offered on the terminal element.1

     On 2 July 2013, the appellant submitted a supplemental
brief with eight additional summary assignments of error2
alleging: (3) that the evidence is factually and legally
insufficient to support all charges and specifications; (4) that
the appellant’s sentence is inappropriately severe; (5) that the
appellant’s attorney who represented her before the Initial
Review Officer was ineffective; (6) that she received
ineffective assistance of counsel at trial; (7) that her right
to a speedy trial was violated;(9) that the military judge
essentially became another prosecutor; and, (10) that the
cumulative effect of these errors effectively denied the
appellant her right to due process.

     After careful examination of the record of trial and the
pleadings of the parties, we are satisfied that the findings and
sentence are correct in law and fact and that no error
materially prejudicial to the substantial rights of the
appellant occurred. Arts. 59(a) and 66(c), UCMJ.

                                 Background

     In March 2012, the appellant submitted a chit through her
chain of command requesting 25 days leave to provide for her
ailing grandmother. The request was denied by her commanding
officer (CO) and the appellant was subsequently instructed by

1
   The appellant was charged with a Clause 1 violation alleging that the
misconduct was prejudicial to good order and discipline.
2
   Assignment of error three through 10 were submitted pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).


                                      2
her command sergeant major (CSM) to provide documentation of her
grandmother’s illness. Record at 136. The appellant requested
mast and on 3 April 2012, met with her CO, executive officer
(XO), and CSM to discuss her denied leave request. According to
the appellant, although this was the first time the CO had met
her, he indicated that he had heard of her reputation and
further explained that he had in his possession a “litigation
package” referring to her suspected drug use. Id. He further
stated that only model Marines deserve 30 days’ leave and that
she wasn’t a model Marine. Her CO additionally stated that he
had enough evidence to “lock [her] up and throw [her] back in
the brig.” Id. at 136, 374.

     On 12 April 2012, the CSM called the appellant to his
office in the command suite to take care of some pending
paperwork. During this meeting, according to the CSM, the
appellant got upset, stood uncomfortably close to him in a
manner he viewed as aggressive, and started spouting obscenities
about the noncommissioned officers within the unit. The CSM,
noticing that the appellant was upset and not pleased with her
tone and deportment, attempted to defuse the situation by asking
her to leave his office and wait in the hallway so she could
calm down. Upon leaving the CSM’s office, the appellant slammed
the door and continued to shout obscenities as she left the
command suite. The CSM called for her to come back multiple
times, but she ignored him. The CSM then sent an email to the
CO and XO indicating that the appellant was “completely out of
control and has ZERO respect for authority.” Appellate Exhibits
XVII at 9 and XXIX at 1-2. The CSM further indicated that he
was taking action, in accordance with the CO’s previous
instructions, and placing the appellant in the brig. Id. The
XO, acting as the CO because the latter was in a temporary
additional duty status out of the area, ordered the appellant to
submit to a probable cause urinalysis, which she refused. The
XO then ordered her into pretrial confinement. Additional
pertinent facts are provided as necessary to discuss the
appellant’s assignments of error.

                           The Accuser Concept

     In her initial assignment of error, the appellant avers
that the military judge abused his discretion by not dismissing
her court-martial because it was improperly convened.3

3
   The appellant did not raise the presence of unlawful command influence
(UCI), actual or apparent, during her court-martial process, on appeal, or at
the trial level. The Government, in its answer to the appellant’s
assignments of error, seems to conflate UCI with the prohibition against an

                                      3
Specifically, she alleges that her CO had a personal rather than
an official interest in her prosecution thus making him a “type
three” accuser.4 We disagree.

     At trial, the defense filed a motion to dismiss the
charges, averring that the CA was an accuser as defined in
Article 1(9), UCMJ, and as such was prohibited by Article 23(b),
UCMJ, from convening her court-martial. The appellant argues
that her CO’s interest in her prosecution became personal when,
during her request mast, he yelled at her and threatened to put
her in the brig because of suspected drug use. The appellant
avers that her request mast to discuss the denial of her leave
request to tend to her ailing grandmother had nothing to do with
her alleged misconduct. She contends that her CO’s angry
response to her demonstrated that his interest in seeing her
court-martialed was personal vice official.5 Appellant’s Brief
at 8.

The Law

     The question of whether a CA is an “accuser” under Article
1(9), UCMJ, is a question of law that we review de novo. United
States v. Asby, 68 M.J. 108, 129 (C.A.A.F. 2009) (citing United
States v. Conn, 6 M.J. 351, 354 (C.M.A. 1979)). Article 1(9)
defines an accuser as:

      (1)   One who signs and swears to the charges;


accuser acting as the CA in a court-martial. Government Brief of 7 Jul 2013
at 10-13. There is nothing in the record to suggest the presence of UCI,
actual or apparent, at trial or on appeal, and we therefore need not conduct
a UCI analysis.
4
   The appellant does not contend, and there is nothing in the record to
suggest, that the CA signed and swore to the charges, or directed another to
do so. The appellant specifically alleges that the CA acted as a “type
three” accuser in that he had a personal rather an official interest in
seeing that she was prosecuted. We will therefore limit our analysis
accordingly.
5
   The appellant also contends that during her 12 April 2012 meeting with the
CSM, the XO, who was the acting CO at the time, witnessed the appellant’s
disrespectful deportment towards the CSM in the command suite, and was
arguably the victim of her alleged misconduct himself by virtue of the fact
that she refused his order to submit to a probable cause urinalysis. The
appellant argues that the XO is a “type three” accuser as well. Since the XO
did not convene the appellant’s court-martial or refer the charges against
her, the appellant’s argument that the XO is a “type three” accuser is
without merit.


                                      4
     (2)   One who directs that charges nominally be signed and
           sworn to by another; or,
     (3)   One who has an interest other than an official
           interest in the prosecution of the accused.
      An accuser is disqualified from convening a general or
special court-martial, or referring charges to a court-martial.
See RULES FOR COURTS-MARTIAL 504(c)(1) and 601(c), MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2012 ed.). Additionally, Article 23(b)
lists who may convene general and special courts-martial and
provides that “[i]f any such officer is an accuser, the court
shall be convened by superior competent authority . . . .”

Analysis

     CAs are presumed to act without bias. United States v.
Brown, 40 M.J. 625, 629 (N.M.C.M.R. 1994); United States v.
Kelly, 40 M.J. 558, 569-70 (N.M.C.M.R. 1994). The appellant has
the burden of rebutting this presumption. United States v.
Argo, 46 M.J. 454, 463 (C.A.A.F. 1997) (citing United States v.
Hagen, 25 M.J. 78, 84 (C.M.A. 1987)). The test for determining
whether a CA is an accuser is “whether he ‘was so closely
connected to the offense that a reasonable person would conclude
that he had a personal interest in the matter.’” United States
v. Voorhees, 50 M.J. 494, 499 (C.A.A.F. 1999) (quoting United
States v. Jackson, 3 M.J. 153, 154 (C.M.A. 1977)). “Personal
interests relate to matters affecting the convening authority's
ego, family, and personal property.” Id.

     To illustrate, the Court of Military Appeals (CMA) found
that the CA had a personal interest in a court-martial where he
was the victim in the case, United States v. Gordon, 2 C.M.R.
161 (C.M.A. 1952); where the accused attempted to blackmail the
convening authority, United States v. Jeter, 35 M.J. 442 (C.M.A.
1992); and where the accused had potentially inappropriate
personal contacts with the convening authority's fiancée, United
States v. Nix, 40 M.J. 6 (C.M.A. 1994). The Court of Appeals
for the Armed Forces has also found, under certain
circumstances, that a CA’s dramatic expression of anger towards
an accused might disqualify the commander if it demonstrates
personal animosity. See Voorhees, 50 M.J. at 499.

     After carefully considering the appellant’s assertions, the
record, and the military judge’s findings of fact and
conclusions of law, we find no evidence of personal interest or
bias on the part of the CA to disqualify him as a “type three”
accuser in this case. While it is not disputed that her former


                                   5
CO became upset with her during her request mast and informed
her that he could “lock her up” and “throw her in the [brig],”
this in and of itself does not establish that the CA had other
than an official interest in the prosecution of appellant’s
case. On this record, we do not find that the military judge
erred when he concluded that there was no evidence of bias,
personal interest, or animosity on the part of her former CO6
such that he was “transformed into a de facto accuser.” Ashby,
68 M.J. at 130. There is nothing in the record to suggest that
his interest was anything other than official, i.e., maintaining
good order and discipline within his command, which is in fact
the responsibility of a CO.

     We find this assignment of error to be without merit and
therefore decline to grant relief.

                     Legal and Factual Sufficiency

     In her second assignment of error, the appellant avers that
the finding of guilty on the charge of disorderly conduct is
legally and factually insufficient because the Government
“neither presented direct and palpable evidence that Appellant’s
conduct prejudiced good order and discipline, nor elicited
testimony from any witness to that effect.” Appellant’s Brief
at 11. We disagree.

The Law

     The test for legal sufficiency is whether, considering the
evidence in the light most favorable to the Government, any
rational trier of fact could have found the elements of the
offense beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 318-19 (1979); United States v. Turner, 25 M.J. 324,
324 (C.M.A. 1987); United States v. Reed, 51 M.J. 559, 561-62
(N.M.Crim.Ct.App. 1999), aff'd, 54 M.J. 37 (C.A.A.F. 2000); see
also Art. 66(c), UCMJ. The test for factual sufficiency is
whether, after weighing all the evidence in the record of trial
and recognizing that we did not see or hear the witnesses, this
court is convinced of the appellant's guilt beyond a reasonable
doubt. Turner, 25 M.J. at 325; see also Art. 66(c), UCMJ.


6
  Colonel (Col) C was the CO when the appellant had her request mast. On 24
June 2012, Col C retired and Col F became the CO of the appellant’s command.
Thus, by the time the appellant’s case went to trial in November 2012, Col C
was no longer the CA. The military judge found that any potential personal
bias on behalf of the appellant’s former CO had been eliminated since, at the
time of time of trial, he was no longer the CA. AE XXIX at 4.

                                      6
Analysis

      There are two elements to the offense of disorderly conduct
in the appellant’s case: (1) that the appellant was disorderly
and, (2) that under the circumstances her conduct was
prejudicial to good order and discipline. While the Government
offered no witness to specifically testify to the impact of the
appellant’s behavior on the command, there is no bright-line
rule requiring such evidence. The impact on good order and
discipline can be determined by the trier of fact based upon the
circumstances surrounding the misconduct. In amplifying the
prejudicial conduct subject to this Article, the MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2012 ed.), Part IV, ¶ 60c(2)(a), states:

     “To the prejudice of good order and discipline” refers
     only to acts directly prejudicial to good order and
     discipline and not to acts which are prejudicial only
     in a remote or indirect sense. Almost any irregular
     or improper act on the part of a member of the
     military service could be regarded as prejudicial in
     some indirect or remote sense; however, this article
     does not include these distant effects. It is
     confined to cases in which the prejudice is reasonably
     direct and palpable.

     In determining whether the appellant’s conviction for
cross-dressing, charged as a violation of Article 134, Clause 1,
was supported by the evidence, the CMA in United States v.
Guerrero, 33 M.J. 295, 298 (C.M.A. 1991) looked at the “time . .
. the place [and] the circumstances” surrounding the appellant’s
misconduct in deciding whether the conduct was prejudicial to
good order and discipline. In other words, the impact,
prejudicial or otherwise, on good order and discipline is
determined by the trier of fact based upon the evidence
presented with regards to the facts and circumstances
surrounding the misconduct.

     The record reveals that on 12 April 2012, the appellant was
upset when she left the CSM’s office and slammed the door when
she walked out, prompting the XO to come out of his office to
investigate the disturbance. Additionally, she refused to heed
the CSM’s order to return to his office as she stormed out of
the command suite. As she was awaiting her pretrial confinement
physical, the appellant started screaming and shouting
obscenities in front of other patients in the flight line
medical building waiting room. She was so disruptive that a
doctor located in the back of the building came out of his

                                 7
office to tell the appellant to lower her voice. Record at 452.
She then verbally abused police personnel who were called for
assistance, calling them “pigs” and “f***ing cops,” and also
physically assaulted one of the officers by kicking him in the
chest and trying to bite him when he attempted to arrest and
handcuff her. She was shouting so vehemently that her spittle
sprayed from her mouth. Id. at 388-89, 413-16. The appellant
resisted arrest to the point that additional police officers had
to be called to assist the on-scene officers in getting her into
the police car. They eventually managed to strap her to a chair
and put her in an ambulance. Id. at 396-400. Finally, the
record reflects that the appellant was so disruptive that
service members attending a transition assistance program
workshop nearby, hearing the fracas, gathered outside to discern
the cause of the commotion.

     After reviewing all of the evidence to include eyewitness
testimony, we are convinced that the military judge had a
factual basis to find that the appellant’s conduct was
prejudicial to good order and discipline and to find her guilty
beyond a reasonable doubt. Recognizing that we did not
personally observe the witnesses at trial, we too are convinced
beyond a reasonable doubt that the appellant’s conduct was
prejudicial to good order and discipline thus satisfying Clause
1, Article 134, UCMJ. We find the appellant’s second assignment
of error to be without merit.

     Additionally, we note that in supplemental assignment of
error (3), the appellant avers the findings of guilty to the
remaining charges and specifications are likewise legally and
factually insufficient. After a thorough review of the record
we find the evidence presented at trial to be legally and
factually sufficient to sustain a guilty finding of
insubordinate conduct, disrespect towards a noncommissioned
officer, assaulting a noncommissioned officer, failure to obey
an order, resisting apprehension, and disorderly conduct.
Accordingly, we also find this assignment of error to be without
merit.

             Ineffective Assistance of Counsel at Trial

     We next consider the appellant’s allegation that she did
not receive effective assistance of counsel and as such did not
receive a fair trial. Specifically, she avers7:
7
   Appellant’s Motion to Attach of 1 Jul 2013, Unsworn Declaration of 8 June
2013.


                                      8
     (1) That her trial defense team did not allow her the
     opportunity to testify on her own behalf despite
     repeated requests to do so;

     (2) That two of her witnesses weren’t allowed to
     testify on her behalf; and,

     (3) That her trial defense team was ineffective in
     that they forfeited her right to cross examine
     witnesses by allowing them to testify telephonically
     or read their statements into evidence and by being
     unprepared to argue a motion to release her from
     pretrial confinement.8

     The Government did not submit an opposing affidavit to
counter the appellant’s post-trial declaration, contending
instead that the appellant’s declaration and the record do not
contain sufficient evidence to overcome the presumption of
competence. Government Supplemental Brief of 9 Oct 2013 at 25.
We agree.

The Law

     All service members are guaranteed the right to effective
assistance of counsel at their court-martial. United States v.
Davis, 60 M.J. 469, 473 (C.A.A.F. 2005). The test for
determining ineffective assistance of counsel has two prongs:
deficient performance and prejudice. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). To meet the deficiency
prong, the appellant must show his defense counsel “made errors
so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id. To show
prejudice the appellant must demonstrate that any errors made by
the defense counsel were so serious that they deprived him of a
8
   The record indicates that Lieutenant Colonel O and Captain P testified
telephonically during Article 39a, UCMJ, sessions on motions filed by the
defense because they were deployed with their unit to Afghanistan. Record at
77-92; 222-34. The trial defense counsel’s failure to object to the medium
in which this testimony was elicited was not error nor did it deprive the
appellant or her counsel the right to cross-examine these witnesses – a right
the defense did in fact exercise. See United States v. Morrison, 13 M.J.
649, 651 (N.M.C.M.R. 1982). Nowhere in the record does it reflect that any
witness was allowed to testify telephonically during the trial on the merits.
Finally, based upon the record, we do not find that the trial defense team
was ill-prepared or deficient in arguing the pretrial confinement motion.
The appellant seems to suggest that her counsel was deficient based solely on
the fact that the motion was unsuccessful. We find these arguments to be
without merit and not worthy of further discussion.

                                      9
fair trial. Id.; United States v. Scott, 24 M.J. 186, 188
(C.M.A. 1987). Said another way, the appellant must show “there
is a reasonable probability that, but for the counsel’s error,
there would have been a different result.” Davis 60 M.J. at 473
(citing United States v. Quick 59 M.J. 383, 387 (C.A.A.F.
2004)). The proper standard for attorney performance is that of
reasonably effective assistance. Strickland, 466 U.S. at 687.
Counsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of
reasonable professional judgment. Scott, 24 M.J. at 188. In
order to show ineffective assistance, the appellant must
surmount a very high hurdle. United States v. Moulton, 47 M.J.
227, 229 (C.A.A.F. 1997). This presumption is rebutted only by
“a showing of specific errors made by defense counsel that were
unreasonable under prevailing professional norms.” Davis, 60
M.J. at 473 (citing United States v. McConnell, 55 M.J. 479, 482
(C.A.A.F. 2001)). “[S]econd-guessing, sweeping generalizations,
and hindsight will not suffice.” Id. (citations omitted).

Failure to Call the Appellant and Other Witnesses.

     The appellant contends that her trial defense team did not
allow her to testify on the merits although she repeatedly
requested to do so.9 She indicates that she would have
testified, inter alia, that the command climate was such that
she feared for her life and that her command “held [her] hostage
in an office with five to six higher-ups . . . and scream[ed]
threats” at her. Appellant’s Motion to Attach of 1 Jul 2013,
Unsworn Declaration at 2. She also asserts that she would have
testified that her command harassed her brother through “text
messages and on the phone” and that her trial defense team would
not allow two witnesses to testify on her behalf. Id. at 2-3.
She does not however, provide this court with the information
these witnesses would have provided had they testified on her
behalf.



9
   We note that the defense raised multiple pretrial motions in which the
appellant was sworn and testified on her own behalf, to include motions: (1)
to suppress the results of a urinalysis; (2) to dismiss the charges based on
constitutional protections against double jeopardy; (3) to dismiss the
charges due to defective referral alleging the CA was a “type three” accuser;
and, (4) to release the appellant from pretrial confinement. Additionally,
we note that the appellant was advised that she had the right to provide a
sworn or an unsworn statement during the presentencing phase of her trial and
chose to provide the latter. While the appellant alleges that her trial
defense team did not “allow” her to testify on the merits during her trial,
her claim is not supported by the record.

                                     10
     Based on the appellant’s post-trial submission and our
careful analysis of the record, we find that the appellant, even
assuming arguendo her allegations are true, has failed to meet
her burden of establishing a “factual foundation for [her] claim
of ineffective representation.” United States v. Grigoruk, 52
M.J. 312, 315 (C.A.A.F. 2000). Because the appellant’s post-
trial submission alleges facts that would not result in relief,
we reject her claim on that basis and need not order a post-
trial evidentiary hearing. United States v. Ginn, 47 M.J. 236,
248 (C.A.A.F. 1997).

     In sum, the appellant's ineffective assistance of counsel
assertions constitute nothing more than bare allegations and
speculation concerning her military defense counsel’s claimed
errors and omissions. The record supports that the trial
defense counsel team rendered adequate assistance and exercised
reasonable professional judgment in the pretrial, trial,
sentencing and post-trial representation they provided to the
appellant. In light of the evidence in the record and the
appellate filings, we conclude the appellant has demonstrated
neither deficient performance nor prejudice.

                           Conclusion

     The appellant’s remaining assignments of error have either
no factual basis or are completely without merit; they require
no further discussion. Accordingly, the findings and the
sentence, as approved by the CA, are affirmed.

    Judge FISCHER and Judge JAMISON concur.


                                For the Court



                                R.H. TROIDL
                                Clerk of Court




                               11
