This opinion is subject to administrative correction before final disposition.




                                Before
                 CRISFIELD, HITESMAN, and GASTON,
                       Appellate Military Judges

                        _________________________

                          UNITED STATES
                              Appellee

                                     v.

                      Matthew J. LYTLE
         Sonar Technician Surface Second Class, U.S. Navy
                            Appellant

                             No. 201800209

                         Decided: 15 January 2020

 Appeal from the United States Navy-Marine Corps Trial Judiciary.
 Military Judge: Commander S. Reyes, JAGC, U.S. Navy. Sentence ad-
 judged 22 March 2018 by a general court-martial convened at Fleet
 Activities, Yokosuka, Japan, consisting of officer members. Sentence
 approved by convening authority: reduction to pay grade E-1, forfei-
 ture of all pay and allowances, confinement for six months, and a dis-
 honorable discharge.

 For Appellant: Lieutenant Commander Kevin R. Larson, JAGC, U.S.
 Navy.

 For Appellee: Lieutenant Timothy C. Ceder, JAGC, U.S. Navy; Lieu-
 tenant Kurt W. Siegal, JAGC, U.S. Navy.

                        _________________________

       This opinion does not serve as binding precedent, but
        may be cited as persuasive authority under NMCCA
                 Rule of Appellate Procedure 30.2.

                        _________________________
                 United States v. Lytle, NMCCA No. 201800209


PER CURIAM:
    Appellant was found guilty by officer members, contrary to his pleas, of
one specification of attempted sexual assault of a child and two specifications
of attempted sexual abuse of a child, in violation of Article 80, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. § 880 (2012).
    Appellant asserts three assignments of error (AOE): (1) his convictions
are factually insufficient because he believed the person he was communi-
cating with was 16 years old; (2) his trial defense counsel were ineffective be-
cause they did not challenge a member whose daughter was the victim of
child sexual assault; and (3) his trial defense counsel were ineffective because
they advised him not to testify in his defense. 1 We find no merit in the AOEs
and affirm the findings and sentence.

                                I. BACKGROUND

    The offenses of which Appellant was convicted relate to an online rela-
tionship that Appellant started with “Mandy,” a person representing herself
to be a 15-year-old female, but who was actually a Naval Criminal Investiga-
tive Service (NCIS) special agent. Appellant and “Mandy” communicated
through an online chat platform and Appellant sent communications that
were sexual in nature. On 27 September 2017, NCIS special agents appre-
hended Appellant when he arrived at a residence on the U.S. Navy base at
Yokosuka, Japan. Appellant had come to the residence with the intent to
have sex with Mandy, whom he believed was waiting for him inside.
    One of the members, Commander (CDR) JV, indicated in his member’s
questionnaire and in voir dire that his daughter had been sexually assaulted
five years before. His daughter was 5 years old at the time and had been at-
tacked by a 10-year-old child. The civilian defense counsel did not ask CDR
JV about the incident during voir dire, but the military judge asked several
questions about the incident and whether CDR JV believed he could still be a
fair and impartial member in light of the incident. CDR JV stated that he did
not think the incident would affect his ability to be impartial. He stated:




   1 AOE (3) is raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982). Having carefully considered that assignment of error, we find it to be without
merit and warrants no further discussion. See United States v. Clifton, 35 M.J. 79
(C.M.A. 1992); United States v. Matias, 25 M.J. 356, 363 (C.M.A. 1987), cert. denied,
485 U.S. 968 (1988).




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               United States v. Lytle, NMCCA No. 201800209


“They are completely different issues.” The Defense did not challenge CDR
JV for cause or peremptorily.
   Additional facts necessary to resolve the AOEs are contained below.

                              II. DISCUSSION

A. Appellant’s Convictions are Factually Sufficient
    Appellant avers that the evidence presented by the Government was fac-
tually insufficient to prove that he knew the person he was communicating
with was not yet 16 years old, an essential element in each of the three speci-
fications of which he was convicted.
    The test for factual sufficiency is whether “after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, [this Court is] convinced of Appellant’s guilt beyond a reasona-
ble doubt.” United States v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017) (cita-
tion, internal quotation marks, and emphasis omitted). In conducting this
unique appellate function, we take “a fresh, impartial look at the evidence,”
applying “neither a presumption of innocence nor a presumption of guilt” to
“make [our] own independent determination as to whether the evidence con-
stitutes proof of each required element beyond a reasonable doubt.” United
States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). Proof beyond a rea-
sonable doubt does not mean, however, that the evidence must be free from
conflict. United States v. Goode, 54 M.J. 836, 841 (N-M. Ct. Crim. App. 2001)
(citation omitted).
    Having carefully considered the evidence in the record of trial and making
suitable allowances for not having personally observed the witnesses, we are
convinced of Appellant’s guilt beyond a reasonable doubt. In the opening
minutes of their online conversation in September 2017, “Mandy” informed
Appellant: “I’ll be 16 next June.” Appellant responded that she was too young
for him, but soon afterwards asked if he could meet her. Later in the day,
“Mandy” stated that her mother “treats me more like I’m 12 not 15.” Appel-
lant now claims that he honestly believed “Mandy” was 16 years old, but
there is no evidence in the record supporting that conclusion.
    In addition to “Mandy’s” explicit statements that she was 15 years old,
Appellant explicitly expressed his consciousness of guilt. He repeatedly in-
formed “Mandy” that she needed to keep their relationship a secret. He also
repeatedly expressed concern that she might be setting him up for some kind
of sting.
   We are convinced of Appellant’s guilt of the offenses.




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                United States v. Lytle, NMCCA No. 201800209


B. Appellant Received Effective Assistance of Counsel
   Appellant claims that he did not receive effective assistance of counsel be-
cause his trial defense counsel did not challenge CDR JV for cause.
    We review claims of ineffective assistance of counsel de novo. United
States v. Harpole, 77 M.J. 231, 236 (C.A.A.F. 2018). 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) that this defi-
ciency resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687
(1984).
    With respect to Strickland’s first prong, counsel are presumed to be com-
petent and our inquiry into an attorney’s representation is “highly deferen-
tial.” Id. at 689. We employ “a strong presumption that counsel’s conduct falls
within the wide range of professionally competent assistance.” Id. Appellant
has the heavy burden of establishing a factual foundation for a claim of inef-
fective representation. See United States v. Grigoruk, 52 M.J. 312, 315
(C.A.A.F. 2000) (“sweeping, generalized accusations” will not satisfy an appel-
lant’s foundational burden). In order to show prejudice under Strickland’s
second prong, “[t]he defendant must show that there is a reasonable probabil-
ity that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” 466 U.S. at 694. “Moreover, a ver-
dict or conclusion only weakly supported by the record is more likely to have
been affected by errors than one with overwhelming record support.” Id. at
696.
    We will not second-guess strategic or tactical decisions made by the trial
defense counsel unless Appellant can show specific defects in counsel’s per-
formance that were unreasonable under prevailing professional norms.
United States v. Mazza, 67 M.J. 470, 475 (C.A.A.F. 2009). We do not believe
that Appellant has shown any here. Although the trial defense counsel did
not voir dire CDR JV about the incident involving his daughter, the military
judge did. CDR JV clearly stated that he thought the incident involving his
daughter and the allegations against Appellant were “completely different
issues.” He also clearly stated that the incident would not affect his ability to
be impartial. We believe that CDR JV would have provided the same answers
had he been asked the questions by Appellant’s counsel and that any chal-
lenge for cause against CDR JV would have failed.
   The civilian defense counsel could have alternatively decided to use his
peremptory challenge against CDR JV, but he did not. We note that there
were two defense counsel on the defense team and a detailed defense expert
consultant, who was present in the courtroom. The civilian defense counsel
consulted with his co-counsel as well as his defense expert prior to deciding


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               United States v. Lytle, NMCCA No. 201800209


whether to exercise a peremptory challenge, and decided not to challenge any
member. This indicates that the civilian defense counsel’s decision to keep
CDR JV on the members’ panel was a considered decision.
    Although Appellant now claims that CDR JV’s presence on the members’
panel prejudiced him, we can find no prejudice. The members acquitted
Appellant of one of the alleged offenses and convicted on three that were
strongly supported by the evidence. The members were instructed on the
amount of pretrial confinement credit the Appellant would receive and then
adjudged a sentence to confinement which they knew would result in his im-
mediate release. We can find no prejudice in the way the members treated
Appellant.

                             III. CONCLUSION

    After careful consideration of the record and briefs of appellate counsel,
we have determined that the approved findings and sentence are correct in
law and fact and no error materially prejudicial to the appellant’s substantial
rights occurred. Arts. 59, 66, UCMJ. Accordingly, the findings and sentence
as approved by the convening authority are AFFIRMED.


                                FOR THE COURT:




                                RODGER A. DREW, JR.
                                Clerk of Court




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