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

                                     Before
                  K.J. BRUBAKER, M.C. HOLIFIELD, A.C. RUGH
                            Appellate Military Judges

                          UNITED STATES OF AMERICA

                                          v.

                            DANIEL L. HOCK
                 LANCE CORPORAL (E-3), U.S. MARINE CORPS

                               NMCCA 201400417
                           GENERAL COURT-MARTIAL

Sentence Adjudged: 14 July 2014.
Military Judge: LtCol L.J. Francis, USMC.
Convening Authority: Commanding General, 1st Marine Division
(Rein), Camp Pendleton, CA.
Staff Judge Advocate's Recommendation: Maj V.G. Laratta, USMC.
For Appellant: LT Ryan W. Aikin, JAGC, USN.
For Appellee: LT James M. Belforti, JAGC, USN; Capt Cory
Carver, USMC.

                               24 November 2015

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                        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.

PER CURIAM:

     A general court-martial consisting of officer and enlisted
members convicted the appellant, contrary to his pleas, of one
specification of violating a general order by providing alcohol to a
minor, two specifications of rape, and one specification of
aggravated sexual contact, in violation of Articles 92 and 120,
Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 920. The
members sentenced the appellant to 35 years’ confinement, reduction
to pay grade E-1, forfeiture of all pay and allowances and a
dishonorable discharge. The convening authority disapproved five
years’ confinement but approved the remainder of the sentence as
adjudged.
     The appellant raises three assignments of error (AOE): (1) the
military judge erred when he denied a request for an expert
consultant in the field of neuropsychopharmacology; (2) the military
judge erred when he permitted members to call additional witnesses
after the close of the case on the merits but prior to closing
arguments; and (3) trial defense counsel was ineffective. We
disagree on all counts.

                              Background

     On 23 December 2012, the appellant joined Ms. ARM, ARM’s mother
and her mother’s boyfriend, Lance Corporal (LCpl) WY, for an evening
in the barracks on board Marine Corps Air Ground Combat Center
Twentynine Palms. LCpl WY was restricted to the barracks, so he
earlier invited ARM’s mother to join him there. She brought ARM, her
16-year-old daughter, who did not know the appellant. ARM and ARM’s
mother also brought food (pizza) and assisted the appellant and LCpl
WY in purchasing drinks (a twelve-pack of beer and a four-pack of
specialty malt beverage liquor).

     During the course of the evening, LCpl WY separately asked ARM
and her mother if ARM liked the appellant or was interested in
“hooking up” with him. They both flatly rejected the idea. Despite
that, when the appellant asked if anyone wanted to play video games
in his room, ARM agreed and left with him, alone.

     After several minutes, LCpl WY experienced a “weird feeling”
that something was wrong with ARM.1 He hurried to the appellant’s
room, pushed open the door, and discovered ARM naked and hysterical.
She screamed, “I didn’t want it! I didn’t want it!”2 The appellant
quickly pulled up his underwear and claimed that ARM had just
showered to explain her state of undress.

     A scuffle erupted between LCpl WY and the appellant that was
resolved by the arrival of the assistant barracks duty officer. Both
the duty officer and LCpl WY observed that ARM’s hair and body were
dry, and there was no other indication that she recently showered.



1
    Record at 506, 877.
2
    Id. at 879, 894.


                                  2
     Shortly after, ARM’s mother comforted ARM and asked, “were you
willing?” Still distraught, ARM replied, “no.”3 After showering ARM
was transported to the hospital for a sexual assault examination.

     The exam identified multiple injuries to ARM’s genital area and
anus from penetrating, blunt force trauma. ARM also had bruises to
her jaw and upper back and several “pinch-like” bruises to her
breasts. She described severe pain from her injuries. The sexual
assault nurse examiner described these sets of injuries as among the
ten most severe she had ever observed while conducting a sexual
assault examination. Despite the severe degree of injury, ARM had no
direct memory of what happened in the appellant’s room.

     The appellant too had “scratch-like” marks on his lower back. A
search of his room disclosed blood stains on his pillow. Subsequent
testing revealed ARM’s DNA inside the crotch of the appellant’s
underwear and traces of semen on ARM’s vaginal swabs.

                     Denial of Expert Consultant

     Before trial the defense moved to compel the assistance of two
expert consultants in the field of toxicology and the field of
neuropsychopharmacology and eyewitness memory.
Neuropsychopharmacology was identified as the study of alcohol’s
effect on memory, an area the defense agreed overlapped with the
field of toxicology.4

     The defense argued a toxicologist was needed to evaluate the
Government’s anticipated toxicology evidence and to explain the
relationship of alcohol to ARM’s memory loss, a condition the defense
referred to as a “blackout.”5 The defense further asserted that a
neuropsychopharmacologist was needed to “explain how the science of
[alcohol] would affect eyewitness memory and memory cognition[.]”6

     Trial counsel identified Dr. Eric Shimomura as the Government’s
expert toxicologist, and the military judge granted the appellant’s
request for a parallel toxicology consultant. But the military judge
denied the request for a neuropsychopharmacology consultant because



3
    Id. at 512.
4
    Id. at 110.
5
    Id. at 107.
6
    Id. at 109.


                                  3
the defense made an inadequate showing of the necessity of a
neuropsychopharmacologist as distinct from a toxicologist.

     The Government identified Dr. Iain McIntyre as an expert
toxicologist available for defense consultation. Coincidentally, Dr.
McIntyre also had knowledge of neuropsychopharmacology as part of his
toxicology background.7

     The defense briefly consulted with Dr. McIntyre but did not call
him as a witness at trial. After interviewing Dr. Shimomura, the
Government disclosed potentially exculpatory testimony by Dr.
Shimomura to the defense, and Dr. Shimomura was placed on the
defense’s witness list for trial. Dr. Shimomura was not called by
either party as a witness, but did testify at the request of the
members, a matter related to appellant’s second AOE.

                                     Analysis

     The defense is entitled to an expert's assistance upon
demonstration of necessity and a showing that “‘denial of expert
assistance would result in a fundamentally unfair trial.’” United
States v. Bresnahan, 62 M.J. 137, 143 (C.A.A.F. 2005) (quoting United
States v. Gunkle, 55 M.J. 26, 31 (C.A.A.F. 2001)). The appellant
must prevail on both prongs by a “reasonable probability.” Id.

     The “necessity” standard has a three-part test under which the
appellant “must show (1) why the expert assistance is needed; (2)
what the expert assistance would accomplish for the accused; and (3)
why the defense counsel were unable to gather and present the
evidence that the expert assistance would be able to develop.”
Bresnahan, 62 M.J. at 143 (footnote omitted); see also United States
v. Freeman, 65 M.J. 451, 459 (C.A.A.F. 2008).

     “A military judge's ruling on a request for expert assistance
will not be overturned absent an abuse of discretion.” Bresnahan, 62
M.J. at 143 (footnote omitted). We find none here.

     The appellant failed to show why a neuropsychopharmacologist was
needed or what his or her assistance would accomplish for the
defense. Likewise, the appellant failed to demonstrate that denial
of a neuropsychopharmacologist resulted in a fundamentally unfair
trial, especially since the defense was provided a toxicology

7
  This led to the parties occasionally, incorrectly referring to Dr. McIntyre as an
“adequate substitute”——incorrect because Dr. McIntyre was provided as an expert
toxicologist in his own right, and not as an “adequate substitute” for the
appellant’s proposed neuropsychopharmacologist.


                                         4
consultant with experience in the relationship of alcohol to memory.
The absence of an articulable distinction between the use of a
toxicologist and a neuropsychopharmacologist in this case——both
intended to address the effects of alcohol on memory——provided ample
basis for the military judge to grant the former expert while denying
the latter. As a result, the military judge did not abuse his
discretion.

                        Member’s Request for Testimony

     Before the assault, ARM’s mother allowed ARM to have two beers.
Unbeknownst to her mother, ARM also snuck at least half of a 24-ounce
malt beverage with twelve percent alcohol by volume. During the
sexual assault examinations the next morning, medical attendants took
blood samples from both ARM and the appellant. These samples were
tested for blood alcohol content (BAC) by the Armed Forces Medical
Examiner System (AFMES).

     After the case on the merits and the initial findings
instructions but before closing arguments, a member requested
additional evidence on the BAC test results.8 The Government proposed
introducing chain of custody testimony and additional testimony from
Dr. Shimomura, an AFMES toxicologist, to place the BAC results in
context.

     Relying on United States v. Clifton, 71 M.J. 489 (C.A.A.F.
2013), the military judge balanced the availability, relevance, and
admissibility of the proposed testimony. He also sought out the
positions of the parties.

     Initially, the defense supported the         member’s request, viewing
the testimony as potentially exculpatory.          However, after an evening
recess, the defense changed positions and         objected to the testimony,
citing tactical decisions made during the         case on the merits. In
other words, the defense did not want the         testimony admitted.

     The military judge then correctly advised, in light of Clifton,
that opposing the admission of the testimony might waive issues on
appeal arising from its non-admission. He asked the defense if they
understood the potential for waiver. The defense persisted in
opposing the testimony while refusing to acknowledge that waiver
might occur if the testimony was not admitted. When the defense
refused to acknowledge the potential for waiver, the military judge
granted the member’s request for additional evidence.
8
  Earlier in the trial, the military judge had already granted a member’s request to
introduce additional testimony. . Record at 790.


                                         5
     The chain of custody witness and Dr. Shimomura both testified.
Dr. Shimomura was not permitted to discuss the meaning of the BAC
test results until the defense raised the issue on cross-examination.
Subsequently, he provided expert opinions on ARM’s and the
appellant’s BAC test results. Both the Government and defense cited
Dr. Shimomura’s testimony during closing argument to equivalent
beneficial effect.9

                                     Analysis
      Article 46, UCMJ, gives panel members the “opportunity to obtain
witnesses and other evidence in accordance with such regulations as
the President may prescribe.” Under RULE FOR COURTS-MARTIAL 921(b),
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) “[m]embers may request
that the court-martial be reopened and that . . . additional evidence
[be] introduced. The military judge may, in the exercise of
discretion, grant such request.” In addition, MILITARY RULE OF EVIDENCE
614(a), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), allows members
to request to call or recall witnesses to testify at a court-martial.
Clifton, 71 M.J. at 491.

     A military judge may not summarily deny a member's request to
recall witnesses for further questioning. United States v. Lampani,
14 M.J. 22, 26 (C.M.A. 1982). Instead, the military judge must
consider factors such as “‘[d]ifficulty in obtaining witnesses and
concomitant delay; the materiality of the testimony that a witness
could produce; the likelihood that the testimony sought might be . .
. privilege[d]; and the objections of the parties to reopening the
evidence’ before ruling.” Clifton, 71 M.J. at 491-92 (quoting
Lampani, 14 M.J. at 26).
     We review a military judge’s ruling on a panel member’s request
to recall a witness for abuse of discretion. Clifton, 71 M.J. at 491;
United States v. Carter, 40 M.J. 102, 104 (C.M.A. 1994).

     Here, the military judge correctly identified the factors to be
weighed. He invited the parties’ objections and balanced them with
the availability, admissibility and relevance of the testimony
sought. In doing so, he correctly exercised his discretion in
granting the member’s request for additional evidence and did not
abuse his discretion.




                         Ineffective Assistance of Counsel

9
    Id. at 1009, 1051.
                                         6
     The day after the assault, the appellant was interrogated by
agents from the Naval Criminal Investigative Service (NCIS).
Afterwards, the appellant executed a Permissive Authorization for
Search and Seizure (PASS) authorizing agents to conduct a search of
his barracks room and to seize “any property or papers found during
the search” desired for investigative purposes.10 Following a
thorough search of his barracks room and the surrounding areas,
agents seized numerous objects including alcohol containers, the
aforementioned bloody pillow, and the appellant’s non-password
protected computer.
     The appellant never objected to the seizure of his computer,
never sought to withdraw his permissive authorization to seize his
property, and never requested his computer’s return at any time.
     Forensic analysis of the appellant’s computer uncovered recent
internet searches for a Japanese animated videogame named “Rape***.”
The “Rape***” game had as one of its objectives the stalking and rape
of a mother and two daughters. During the week before the assault,
the appellant searched for descriptions of the game and attempted to
download it to his computer. It was unclear whether the appellant
ever successfully played the game.
     The parties litigated the admission of the forensic examiner’s
testimony about “Rape***” under MIL. R. EVID. 404(b), and the military
judge permitted some limited testimony about the search, subject to
the following instruction given at the time of the testimony:
        Members, I have previously described for you the
        definition of “hearsay.” I told you “hearsay” means a
        statement that the declarant does not make while
        testifying in the current trial or hearing and a party
        offers into evidence to prove the truth of the matter
        asserted in a statement. I also told you that absent
        an exception or exemption “hearsay” is inadmissible.

        [The forensic examiner] just testified that he found a
        search conducted on the accused [sic] computer that
        occurred on 19 December 2012 at 10:18 a.m. at the
        website [URL omitted]. [The forensic examiner]
        described he searched this same site and found a
        description of the object of the game Rape[***]. You
        may not consider the information he found for the
        truth of the matter asserted, meaning what the object
        of the game really is, but rather only as
        circumstantial evidence that the accused may have

10
     Appellate Exhibit X at 10.
                                     7
        visited the same website and may have read the same
        information concerning the object of the game.

        Of course you’re free to determine that this
        information has no bearing at all on this case and
        disregard it. It is up to you to determine the weight
        you give circumstantial evidence.11

     Later, the military judge instructed the members that they could
consider this evidence:
        [F]or the limited purposes of its tendency, if any,
        to: Prove that the accused intended to rape or
        sexually assault [ARM]...; determine whether the
        accused had a motive to commit the offense of rape...;
        or rebut the contention that the accused’s
        participation in the offenses against [ARM] was as a
        result of ignorance or mistake.
        You may not consider this evidence for any other
        purpose and you may not conclude from this evidence
        that the accused is a bad person or has general
        criminal tendencies and that he therefore committed
        the offenses charged.12
     Both sides briefly discussed the testimony during closing
argument with trial defense counsel effectively diffusing its impact
with an analogy to another violent, yet popular videogame. The
testimony received only passing reference from either side in
presentencing arguments.
     The appellant now alleges that trial defense counsel’s failure
to file a motion to suppress evidence gained from the forensic review
of the appellant’s computer amounted to ineffective assistance. We
disagree.
                                  Analysis
     Counsel are presumed to be competent, and therefore, our inquiry
into an attorney’s representation must be “highly deferential” to the
attorney’s performance and employ “a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance[.]” Strickland v. Washington, 466 U.S. 668,
689 (1984); see also United States v. Cronic, 466 U.S. 648, 658
(1984).

11
     Record at 828.
12
     Id. at 938.
                                     8
     We review “the questions of deficient performance and prejudice
de novo.” United States v. Gutierrez, 66 M.J. 329, 330-31 (C.A.A.F.
2008) (citations omitted). To prevail on a claim of ineffective
assistance of counsel, the appellant must demonstrate two things.
     First, the appellant must show that his counsel’s performance
was deficient. United States v. Green, 68 M.J. 360, 361 (C.A.A.F.
2010); see also Strickland 466 U.S. at 688 (finding that the Sixth
Amendment entitles criminal defendants to representation that does
not fall “below an objective standard of reasonableness” in light of
“prevailing professional norms”). When the alleged deficiency is a
failure to raise a motion, we evaluate the likelihood of that
motion’s success. United States v. McConnell, 55 M.J. 479, 482
(C.A.A.F. 2001).
     Second, the appellant must show that the deficiency resulted in
prejudice. Green, 68 M.J. at 361. To establish prejudice, the
appellant must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different. Strickland, 466 U.S. at 694. “It is not
enough ‘to show that the errors had some conceivable effect on the
outcome. . . .’” Harrington v. Richter, 562 U.S. 86, 104 (2011)
(quoting Strickland, 466 U.S. at 693). Instead, a reasonable
probability is a probability sufficient to undermine confidence in
the outcome. Strickland, 466 U.S. at 694.

     When reviewing ineffectiveness claims, a court need not
determine whether counsel's performance was deficient before
examining the prejudice suffered by the defendant. Strickland, 466
U.S. at 697. Rather, “[i]f it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice,
which we expect will often be so, that course should be followed.”
United States v. Datavs, 71 M.J. 420, 424-25 (C.A.A.F. 2012) (quoting
Strickland, 466 U.S. at 697).

     That is the course we follow here. Regardless of whether trial
defense counsel’s performance was deficient, the appellant has failed
to demonstrate prejudice.
     In reaching that conclusion, we consider the positive and
negative impacts of the specific evidence on the findings and
sentence. In this case, the evidence comprised circumstantial
testimony about the appellant’s internet search history as limited by
carefully tailored instructions. Discussed by both parties for a
relatively short period during lengthy closing arguments, the
testimony received even more restrained mention during sentencing
arguments.


                                  9
     We balance any impact against the overwhelming weight of the
other evidence, including the traumatic penetration injuries suffered
by ARM; ARM’s excited utterances and demeanor after the assault; the
DNA and biological evidence from the sexual assault examinations; the
appellant’s false exculpatory statement; and the compelling victim
impact testimony provided by ARM and her mother. Taken together, the
appellant has failed to show that there is a reasonable probability
that the court-martial result would have been different even if the
defense’s suppression motion had succeeded.
     Since we conclude the appellant was not prejudiced by any
alleged error, we do not reach whether trial defense counsel’s
decision not to file a motion to suppress evidence discovered during
the search of his computer constituted deficient performance.

                              Conclusion

     After careful consideration, we conclude 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. The findings and the sentence are
therefore affirmed.

                               For the Court




                               R.H. TROIDL
                               Clerk of Court




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