UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                          BURTON, CELTNIEKS, and SCHASBERGER
                                 Appellate Military Judges

                               UNITED STATES, Appellee
                                            v.
                         Sergeant First Class RONALD S. NAGY
                             United States Army, Appellant

                                        ARMY 20140352

                            Headquarters, Fort Campbell
               Steven E. Walburn and Tyesha L. Smith, Military Judges
            Lieutenant Colonel Sebastian A. Edwards, Staff Judge Advocate

For Appellant: Captain Matthew Bernstein, JA; Mr. James Culp, Esquire (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major Melissa Dasgupta Smith, JA;
Captain Christopher A. Clausen, JA (on brief).


                                       28 December 2017
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                                    MEMORANDUM OPINION
                                   ----------------------------------

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

BURTON, Senior Judge:

      Where the record and filings in the case compellingly demonstrate appellant
received the benefit of competent and diligent counsel at trial, we reject as
“improbable” his claim to the contrary.

      A court-martial comprised of officer and enlisted members sitting as a general
court-martial convicted appellant, contrary to his pleas, of one specification of
sexual assault in violation of Article 120, Uniform Code of Military Justice, 10
U.S.C. § 920 (2012). 1 The panel sentenced appellant to a dishonorable discharge,

1
 Appellant was originally charged in the alternative of sexually assaulting Ms. ND
while she was incapable of consenting due to impairment by alcohol and that
condition was known or reasonably should have been known by appellant. After
arraignment but prior to the entry of pleas, the government’s motion to dismiss this
specification was granted.
NAGY—ARMY 20140352

confinement for five years, and reduction to the grade of E-1. The convening
authority deferred the automatic forfeitures of pay and allowances until action and
approved only so much of the sentence extending to a dishonorable discharge, four
years and eleven months confinement, and reduction to the grade of E-1. 2

       Apellant’s case is before us for review pursuant to Article 66(c), UCMJ.
Appellant raises two assignments of error. The first assigned error of ineffective
assistance of counsel warrants discussion, but no relief; the second assigned error
warrants neither.

                                  BACKGROUND

       On 27 June 2013 about 1930 hours, appellant and Master Sergeant (MSG) SL
went to the local American Legion post where MSG SL was a member. Ms. ND was
the bartender at the American Legion and served alcohlic beverages to appellant and
MSG SL. While at the American Legion, Ms. ND engaged in casual conversation
with MSG SL, a prior acquantaince, and appellant, who she met for the first time.
According to appellant, they discussed the military and family. Around 2200, Ms.
ND asked appellant and MSG SL if they were planning to stay much longer because
she wanted to close the bar early and go to another bar called the Electric Cowboy.
Ms. ND agreed to drive appellant and MSG SL to the Electric Cowboy.

      When they arrived at the Electric Cowboy, appellant expected Ms. ND to meet
with her friends. Appellant testified that he was annoyed when Ms. ND stayed with
them. Eventually, Ms. ND begin circulating around the bar talking to other patrons
and consuming alcohol. Occasionally, she would return and have drinks with
appellant and MSG SL. While at the Electric Cowboy, Ms. ND asked appellant to
hold her keys because another patron was trying to take her keys. Additionally,
Ms. ND warned appellant about another female who was at the bar and suggested he
stay away from her. According to appellant’s testimony, on both of these occasions
Ms. ND made physical contact with him and he believed she was flirtatious.
Appellant testified that at this point, he did not believe Ms. ND wanted to have
sexual intercourse with him nor did he consider having sexual intercourse with her.

        At approximately 0200, Ms. ND and appellant went to the parking lot of the
Electric Cowboy. Appellant testified that once they were in the parking lot, Ms. ND
sat in the backseat of her truck and he sat in the front seat. Appellant explained that
Ms. ND wanted him to “frisk” her and she proceeded to place his hands on her
breasts. Ms. ND testifed that she has no recollection of this occurring.

      Concluding they were all too intoxicated to drive home, appellant called a
taxi. Around 0300, a taxi driver arrived and drove appellant, MSG SL, and Ms. ND

2
 The convening authority granted one month of sentence relief for post-trial
processing delay.


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NAGY—ARMY 20140352

to appellant’s on-post residence. All three of them entered appellant’s residence,
and Ms. ND lay on the floor. Master Sergeant SL told Ms. ND to get on the couch
and gave her a blanket, after which he left and returned to his residence across the
street. As MSG SL was leaving appellant’s residence, appellant was going upstairs.

       Sometime later, appellant went downstairs in his residence, saw Ms ND, asked
if she was okay, and invited her upstairs. At this point, appellant testified he had “a
lapse in judgment” and believed something sexual would happen, although he never
expressed his desires to Ms. ND. On cross-examination, appellant admitted that
once they were in the bedroom, he lay on the bed with Ms. ND and “played the slick
guy move” where “[he] put [his] left arm over her top, and then at that point that’s
when she turns and looks up and faces [him].” Appellant claimed the ensuing sexual
intercourse was consensual. Ms. ND testified that she told him she did not want to
do this, and it was not okay because he was married and she had a boyfriend. She
further testified that she did not fight him or tell him no.

       On appeal, appellant avers his counsel were ineffective because they failed to
address inconsistencies in the testimony of the taxi driver 3 and Ms. ND, and failed to
investigate Ms. ND’s report of a prior sexual assault. Specifically, appellant claims
Ms. ND was inconsistent about her level of intoxication and version of events on
28 June 2013. In addition, appellant alleges Ms. ND was untruthful in her report of
a prior assault. While Ms. ND was cross-examined on her level of intoxication and
her version of events involving appellant, her report of a prior sexual assault was
excluded under Military Rule of Evidence [Mil. R. Evid.] 412.

       According to appellant, evidence of Ms. ND’s prior report is relevant and
admissible because Ms. ND’s claim was false and she lied under oath during the Mil.
R. Evid. 412 hearing. Appellant posits that these lies are admissible under Mil. R.
Evid. 608. We disagree because there is no evidence that proves Ms. ND’s report of
a prior sexual assault was false or that she lied during the Mil. R. Evid. 412 hearing.

                             LAW AND DISCUSSION

       The Sixth Amendment guarantees an accused the right to effective assistance
of counsel. United States v. Gooch, 69 M.J. 353, 361 (C.A.A.F. 2011) (citing United
States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001)). To establish his counsel were
ineffective, appellant must demonstrate “both (1) that his counsel’s performance was

3
  The taxi driver testified about his interaction with appellant, MSG SL, and Ms. ND
during the drive to appellant’s house. He also testified about picking up Ms. ND
from appellant’s house and taking her to the military police station. The
inconsistencies appellant now raises relate to whether or not Ms. ND was
intoxicated. The charge relating to sexual assault due to impairment by alcohol was
dismissed prior to arraignment. The taxi driver had no information about whether
the sexual intercourse was consensual.


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NAGY—ARMY 20140352

deficient, and (2) that this deficiency resulted in prejudice.” United States v. Green,
68 M.J. 360, 361-62 (C.A.A.F. 2010) (citing Strickland v. Washington, 466 U.S.
668, 687 (1984)). “We review both prongs of the Strickland analysis de novo.”
United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009) (citations omitted).

       “On appellate review, there is a ‘strong presumption’ that counsel was
competent.” United States v. Grigoruk, 56 M.J. 304, 306-07 (C.A.A.F. 2002)
(quoting Strickland, 466 U.S. at 689). “We do not measure deficiency based on the
success of a trial defense counsel’s strategy, but instead examine whether counsel
made an objectively reasonable choice in strategy from the available alternatives.
Similarly, we must remain mindful that counsel have wide latitude . . . in making
tactical decisions.” United States v. Akbar, 74 M.J. 364, 379 (C.A.A.F. 2015)
(internal citations and quotation marks omitted). Our analysis of counsel’s
performance is highly deferential. Strickland, 466 U.S. at 689. As a general matter
we “‘will not second-guess the strategic or tactical decisions made at trial by
defense counsel.’” United States v. Anderson, 55 M.J. 198, 202 (C.A.A.F. 2001)
(quoting United States v. Morgan, 37 M.J. 407, 410 (C.M.A. 1993)). To overcome
this presumption, an appellant “bears the burden of establishing the truth of the
factual allegations that would provide the basis for finding deficient performance.”
United States v. Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007) (citing United States v. Polk,
32 M.J. 150, 153 (C.M.A. 1991)).

       The Strickland framework was adopted by the military justice system and
further developed into the following three-pronged test to determine whether an
appellant has overcome the presumption of competence and shown prejudice:

             (1) Are appellant’s allegations true; if so, “is there a
             reasonable explanation for counsel’s actions?”;

             (2) If the allegations are true, did defense counsel’s level
             of advocacy fall “measurably below the performance . . .
             [ordinarily expected] of fallible lawyers?”; and

             (3) If defense counsel was ineffective, is there a
             “reasonable probability that, absent the errors,” there
             would have been a different result?

Grigoruk, 56 M.J. at 307 (quoting Polk, 32 M.J. at 153).

      In addition, our review of ineffectiveness is not based on a single act of
counsel, but by considering counsel’s overall performance. See United States v.
Murphy, 50 M.J. 4, 8 (C.A.A.F. 1998) (“When we look for effective assistance,
however, we do not scrutinize each and every movement or statement of counsel.
Rather, we satisfy ourselves that an accused has had counsel who, by his or her
representation, made the adversarial proceedings work.”).



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NAGY—ARMY 20140352

         Under the circumstances of this case, we see no need to order affidavits from
counsel (regarding their trial strategy or tactics) or a fact-finding hearing pursuant to
United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967). The facts in
appellant’s allegations—even if true—“would not result in relief . . . .” United
States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997). Appellant’s submission “consists
. . . of speculative [and] conclusory observations . . . .” Id. Furthermore, “the
appellate filings and the record as a whole ‘compellingly demonstrate’ the
improbability of [appellant’s allegations.]” Id. While we do not judge counsel’s
performance based on the outcome of their trial strategy, our review of counsel’s
performance from the entire record, shows their combined performance “made the
adversarial proceedings work.” Murphy, 50 M.J. at 8.

       The defense theory at trial was that the sexual intercourse between appellant
and Ms. ND was consensual or, in the alternative, that appellant made a reasonable
mistake of fact as to consent. The defense argued Ms. ND fabricated the allegations
against appellant because she suffered from a personality disorder 4 or, in the
alternative, she was an untruthful person.

       Prior to trial, defense counsel filed a Mil. R. Evid. 412 motion seeking to
introduce evidence of the prior report of sexual assault by Ms. ND. The defense
wanted to show Ms. ND was untruthful in her prior report. The defense also called a
witness who recounted a statement Ms. ND allegedly made to her, but Ms. ND
denied making the disputed statement. No further evidence was offered to verify the
credibility of the witness or Ms. ND. Accordingly, the military judge correctly ruled
neither of these collateral allegations made it any more or less likely that Ms. ND
was sexually assaulted by appellant. In a supplemental Mil. R. Evid. 412 motion,
defense counsel again sought to admit evidence about Ms. ND’s report of a prior
sexual assault. The military judge once again found the evidence was irrelevant, but
did not preclude it for pre-sentencing should appellant be convicted.

      At trial, the defense called Ms. ND’s estranged husband, with whom she had
an ongoing child-custody dispute, to testify that she is untruthful. A former co-
worker who worked with Ms. ND for seven months also testified that Ms. ND was


4
  The defense filed a motion prior to trial under Mil. R. Evid. 513. The military
judge ruled the opinions concerning Ms. ND’s mental health diagnosis were
constitutionally required. To support their theory of a personality disorder, the
defense cross-examined the government’s expert in forensic psychiatry and called a
defense expert in forensic psychiatry. Although the defense expert testified Ms. ND
might have traits of several different personality disorders, neither the defense
expert nor the government expert testified that Ms. ND currently suffered from or
was previously diagnosed with a personality disorder.




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NAGY—ARMY 20140352

untruthful. Neither witness offered any information about the disputed statement
Ms. ND allegedly made or the report of a prior sexual assault.

       At a post-trial Article 39(a), UCMJ, session, 5 a different pair of defense
counsel argued the previous defense counsel did not exercise due diligence in their
pretrial preparation because they failed to contact the police department about the
report of a prior sexual assault. To support this claim, an affidavit from a detective
involved in the investigation was submitted. The defense counsel argued, and the
military judge agreed, the former defense counsel could have discovered with due
diligence the affidavit of the detective.

      Ultimately, the military judge found in reference to the detective’s affidavit:

             [T]he statement itself is hearsay. While the statement may
             be considered for the purpose of motions, the statement
             would be inadmissible at trial. However, the statement,
             had it been discovered, may have been considered for the
             purposes of ruling on the defense’s [Mil. R. Evid.] 412
             motion. [The detective could also have testified regarding
             his investigation at the motions hearing.]

             . . . Had the statement been discovered by the defense, it
             may have been used to help establish that Mrs. ND made
             prior false allegations of sexual assault. Nevertheless, the
             statement even when coupled with Mrs. ND’s testimony,
             including her testimony during the [Mil. R. Evid.] 412
             hearing, without more, is not enough for the Court to even
             now conclude that Mrs. ND made false allegations of
             sexual assault. Consequently, this evidence remains
             barred by [Mil. R. Evid.] 412.

(footnotes omitted).

        It is clear from the record that the original defense counsel were aware of
Ms. ND’s report of a prior sexual assault. They filed two Mil. R. Evid. 412 motions
addressing this fact. The evidence not raised by the defense counsel at trial was the
information contained in the detective’s affidavit which was created after trial, but
this defense tactic was reasonable because the military judge already ruled this
evidence was inadmissible. Even if the detective’s affidavit was prepared before
trial and the defense counsel tried to introduce the detective’s affidavit or testimony

5
  A post-trial Article 39(a), UCMJ, session was ordered to address the defense
request for a new trial based on information from an administrative investigation of
a witness and an affidavit from a detective. The military judge concluded, even in
light of the totality of this new evidence, a new trial was unwarranted.


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NAGY—ARMY 20140352

at trial, the result would have been the same. “Evidence of an alleged victim’s prior
accusation of sexual assault is only admissible if the prior accusation is shown to be
false. This is true whether the defense seeks to introduce the evidence as an
exception to [Mil. R. Evid.] 412 or to show the alleged victim’s modus operandi,
motive, or character evidence for lack of truthfulness.” United States v. Erikson, 76
M.J. 231, 234 (C.A.A.F. 2017); See also United States v. Valez, 48 M.J. 220, 227
(C.A.A.F. 1998).

       In sum, the information in the detective’s affidavit lends no credence to
whether or not there was a prior, false allegation by Ms. ND. Despite the fact that
there are some inconsistencies between Ms. ND’s recollection of the previous sexual
assault and the detective’s affidavit, there is no evidence that demonstrates Ms. ND
was untruthful at the time she contacted law enforcement or that the prior sexual
assault did not occur. Instead, the affidavit shows Ms. ND did not continue her
contact with law enforcement and no further investigation of her prior report was
conducted. “The mere filing of a complaint is not even probative of the truthfulness
or untruthfulness of the complaint filed. Thus, its relevance on the question of
credibility of a different complaint in an unrelated case, such as appellant’s, entirely
escapes us.” United States v. Velez, 48 M.J. 220, 227 (C.A.A.F. 1998) (citation
omitted).

       Applying our superior court’s three-pronged test to determine whether
appellant has overcome the presumption of competence and shown prejudice under
the Strickland framework, we find: 1) there was a reasonable explanation for
counsel’s actions; 2) counsel’s level of advocacy did not fall measurably below the
performance ordinarily expected of fallible lawyers; and 3) there was no reasonable
probability that, absent the alleged errors, the result would have been different. See
Grigoruk, 56 M.J. at 307 (quoting Polk, 32 M.J. at 153).

                                   CONCLUSION

      The findings of guilty and the sentence are AFFIRMED.

      Judge CELTNIEKS and Judge SCHASBERGER concur.

                                            FOR THE COURT:




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




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