               UNITED STATES NAVY-MARINE CORPS
                  COURT OF CRIMINAL APPEALS
                       WASHINGTON, D.C.

                                  Before
              R.Q. WARD, J.R. MCFARLANE, K.M. MCDONALD
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                         SHAWN D. STONER
                  SERGEANT (E-5), U.S. MARINE CORPS

                           NMCCA 201300217
                       GENERAL COURT-MARTIAL


Sentence Adjudged: 11 February 2013.
Military Judge: LtCol C.J. Thielemann, USMC.
Convening Authority: Commanding General, 1st Marine
Division, Camp Pendleton, CA.
Staff Judge Advocate's Recommendation: LtCol D.P. Harvey,
USMC.
For Appellant: CAPT Brent Filbert, JAGC, USN.
For Appellee: LCDR Keith Lofland, JAGC, USN; Maj David
Roberts, USMC.

                              29 May 2014

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

PER CURIAM:

     A military judge sitting as a general court-martial
convicted the appellant, pursuant to his pleas, of one
specification of violating a lawful general regulation
(wrongfully viewing pornography on a government computer), and
one specification of wrongfully possessing child pornography, in
violation of Articles 92 and 134, UCMJ, 10 U.S.C. §§ 892 and
934. The military judge sentenced the appellant to 42 months’
confinement, reduction to pay grade E-1, and a dishonorable
discharge. The convening authority (CA) approved the sentence
as adjudged, and except for the punitive discharge, ordered the
sentence executed. In accordance with a pretrial agreement, the
CA suspended all confinement in excess of 18 months.

     The appellant’s sole assignment of error claims that trial
counsel’s sentencing argument was improper and amounted to plain
error that materially prejudiced his substantial rights. We
disagree. After carefully considering the record of trial and
the submissions of the parties, we are convinced that the
findings and the sentence are correct in law and fact, and that
no error materially prejudicial to the substantial rights of the
appellant was committed. Arts. 59(a) and 66(c), UCMJ.

                          Background

     The appellant pled guilty, pursuant to a pretrial
agreement, to possessing over 1000 images and depictions of
child pornography and to violating a lawful general regulation
by spending approximately two hours a day while on duty viewing
pornography on a government computer.

     The appellant called three sentencing witnesses. One
witness testified to the appellant’s good job performance and
rehabilitative potential. The next witness was a licensed
pastoral counselor who testified that appellant’s upbringing and
childhood may have contributed to his pornography habit. Last,
the appellant’s wife testified about the appellant’s remorse and
the adverse impact the appellant’s crimes will have on his
family’s financial situation and 9-month-old son. In his
unsworn statement, the appellant apologized for his conduct,
discussed his efforts at rehabilitation, and accepted
responsibility for his crimes.

     During the Government’s sentencing argument, trial counsel
described the appellant’s remorse and efforts to rehabilitate as
“insulting” and “ridiculous” while repeatedly referring to the
appellant as a “sexual predator.” Trial counsel then argued for
5 years’ confinement. Trial defense counsel did not object to
the trial counsel’s argument and the military judge did not take
any sua sponte remedial action.




                                2
                              Analysis

     Improper argument is a matter we review de novo. United
States v. Marsh, 70 M.J. 101, 104 (C.A.A.F. 2011). In the
absence of a defense objection at trial, we review the
appellant’s claim of improper argument for plain error. Id.
“Plain error occurs when (1) there is error, (2) the error is
plain and obvious, and (3) the error results in material
prejudice to a substantial right of the accused.” United States
v. Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005) (citing United
States v. Rodriguez, 60 M.J. 87, 88-89) (C.A.A.F. 2004)).

     Trial counsel is expected to zealously argue for an
appropriate sentence so long as the argument is fair and
reasonably based on the evidence. United States v. Kropf, 39
M.J. 107, 108 (C.M.A. 1994) (citing United States v. Edwards, 35
M.J. 351 (C.M.A. 1992)). Error occurs when counsel fail to
limit their arguments to “the evidence in the record, as well as
reasonable inferences fairly derived from such evidence.”
United States v. Baer, 53 M.J. 235, 237 (C.A.A.F. 2000). Error
also occurs when trial counsel “interjects [oneself] into the
proceedings by expressing a ‘personal belief or opinion as to
the truth or falsity of any testimony or evidence.’” Fletcher,
62 M.J. at 179 (quoting United States v. Horn, 9 M.J. 429, 430
(C.M.A. 1980)).

     A sentencing argument is not improper when the comments are
supported by a reasonable inference fairly derived from the
evidence. United States v. Halpin, 71 M.J. 477, 479 (C.A.A.F.
2013); see also United States v. Burton, 67 M.J. 150, 152
(C.A.A.F. 2009). Here, we do not find that trial counsel acted
improperly when he referred to the appellant as a “child
predator” as this was a reasonable inference from the evidence.
The appellant had admitted to searching the Internet for child
pornography and was in possession of over 1000 images of
children. Nor do we find that trial counsel acted improperly
when he argued that the victims depicted in these photos were
the “real victim[s]” in this case.

     We do find, however, that it was improper for trial counsel
to describe the appellant’s sentencing case as “insulting” and
“ridiculous,” because by doing so, he injected his own opinion
of the evidence. 1 Thus, we find these comments were improper and
amount to error.
1
  In Fletcher, 62 M.J. at 180, the court found error when the trial counsel
described Technical Sergeant Fletcher’s defense with such terms as
“nonsense,” “fiction,” “unbelievable,” “ridiculous” and “phony.”
                                      3
     Although we find error within trial counsel’s sentencing
argument, the error is not plain and obvious. The case was
tried before a military judge rather than before members, and
there is nothing in the record to suggest that the military
judge considered the improper comments in deciding a sentence.
A military judge is presumed to know the law and follow it
correctly. United States v. Sanders, 67 M.J. 344, 346 (C.A.A.F
2009). Judges are presumed to filter out inadmissible and
inappropriate evidence when making decisions as to guilt,
innocence, or sentence. United States v. Mason, 45 M.J. 483,
484 (C.A.A.F. 1997). Therefore, any improper comments made by
trial counsel during his sentencing argument were presumed to be
disregarded by the military judge and did not impact the
appellant’s sentence.

     Here, even assuming arguendo that the errors made by trial
counsel were “plain and obvious,” the appellant was not
materially prejudiced by the improper comments. The weight of
the evidence, the limited scope of trial counsel’s improper
comments, and the sentence awarded by the military judge all
convince us that the appellant received a fair trial and was
sentenced based on the evidence alone. Marsh, 70 M.J. at 107.

                           Conclusion

     The findings and the sentence as approved by the convening
authority are affirmed.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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