UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                          MULLIGAN, CAMPANELLA, and WOLFE
                                Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                         Captain UVO T. OGHREIKANONE
                           United States Army, Appellant

                                      ARMY 20150447

                Headquarters, 8th Theater Sustainment Command
                        Gregory A. Gross, Military Judge
   Colonel Anthony T. Febbo, Staff Judge Advocate (pretrial & recommendation)
Lieutenant Colonel Lajohnne A.W. Morris, Acting Staff Judge Advocate (addendum)


For Appellant: Captain Katherine L. Depaul, JA; M. Brian Magee, Esquire (on
brief).

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Major Cormac M. Smith, JA
(on brief).


                                      28 February 2018
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                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

MULLIGAN, Senior Judge:

       An officer panel sitting as a general court-martial convicted appellant,
contrary to his pleas, of six specifications of sexual assault, one specification of
abusive sexual contact, two specifications of assault consummated by battery, and
one specification of adultery, in violation of Articles 120, 128, and 134, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 920, 928, and 934 (2012 & Supp. I).
The panel acquitted appellant of one specification of rape in violation of Article
120, UCMJ. The panel sentenced appellant to a dismissal, confinement for twenty
years, and forfeiture of all pay and allowances. The convening authority approved
the findings and sentence as adjudged, but, at appellant’s request, waived forfeitures
for six months for the benefit of appellant’s two minor children.
OGHREIKANONE—ARMY 20150447


       Appellant’s case is before this court for review under Article 66, UCMJ.
Appellant raises three errors, none of which merit relief. 1 First, appellant alleges his
trial defense counsel were ineffective. Second, appellant claims an unreasonable
multiplication of charges. Third, appellant contends the evidence was factually and
legally insufficient to prove beyond a reasonable doubt that appellant was guilty of
sexual assault, abusive sexual contact, and assault consummated by a battery.

                                   BACKGROUND

      In March 2014, depressed that he and his wife were in the process of
obtaining a divorce, appellant persuaded Ms. KM, a female friend, to visit him in
Hawaii, where appellant was stationed. During the visit, appellant exploited their
platonic friendship by assaulting Ms. KM on numerous occasions in his apartment,
where Ms. KM had been staying.

       The first attack occurred on 3 April 2014. As Ms. KM was getting ready to go
to sleep, appellant grabbed her against her will, flipped her face-down on a bed, put
his knee into her back, and then inserted his fingers, and then his penis, into Ms.
KM’s vagina. Ms. KM managed to eventually run into a bathroom and shut the door.
Appellant convinced Ms. KM to come out of the bathroom, after assuring her that he
would sleep in the living room. That night, Ms. KM slept in the bedroom, away
from appellant.

        The following day, Ms. KM called a local crisis hotline from the apartment,
explained that she had been attacked and needed to get out before appellant returned.
During the call, appellant returned and Ms. KM hung up the phone. Although
initially KM appeared to be out of danger, appellant again assaulted her later that
day. Despite Ms. KM’s resistance, appellant pulled down her pants and underwear,
flipped her over and inserted his fingers and penis into her vagina. As Ms. KM
remained paralyzed by fear, appellant then inserted his fingers and tongue inside of
her anus and touched her breasts. Appellant then forced Ms. KM to perform fellatio
on him while he was in a lawn chair. He then turned her around and continued to
sexually assault her such that she was on top of him, facing away from him, while he
sat on the lawn chair.

      On 5 April 2014, Ms. KM called her mother, Ms. BM, who was stateside.
Although somewhat incoherent, Ms. KM managed to tell her mother that appellant
had raped her. Ms. BM arranged for another soldier, Sergeant (SGT) Inyang, to
drive Ms. KM from appellant’s apartment. The next day, Ms. KM returned to her
home and underwent a sexual assault forensic examination at a hospital, where a
nurse observed redness and swelling in the back of Ms. KM’s mouth and bruising all
over her body. Additionally, the nurse observed that Ms. KM’s genitals were “very
swollen, very sore, and tender to the touch.”


1
 Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), appellant
personally asserts a number of issues. They merit neither discussion nor relief.


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                               LAW AND ANALYSIS

                         A. Ineffective Assistance of Counsel

       Appellant claims that his trial defense team was ineffective by failing to file a
discovery request under Rule for Courts-Martial [R.C.M.] 701 and by failing to
interview Ms. KM prior to trial. As a result, appellant maintains, his counsel were
surprised when the government: 1) sought to introduce a number of the photographs
depicting Ms. KM’s injuries from the aforementioned assaults; 2) elicited testimony
from Ms. KM that she had consulted a psychiatrist following one of the sexual
encounters; and 3) elicited testimony from Ms. KM about an additional alleged
sexual assault not listed on the charge sheet.

       To establish ineffective assistance of counsel, “an appellant must demonstrate
both (1) that his counsel’s performance was deficient, and (2) that this deficiency
resulted in prejudice.” United States v. Green, 68 M.J. 360, 361 (C.A.A.F.2010)
(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). “[T]here is no reason
for a court deciding an ineffective assistance claim to approach the inquiry in [this]
order or even to address both components of the inquiry if the [appellant] makes an
insufficient showing on one.” Strickland, 466 U.S. at 697. Here, appellant has
failed to show prejudice and we therefore need not address deficient performance.

       Prejudice under Strickland requires appellant to “show that there is a
reasonable probability, 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.” Id. at 698.

 1. The Surprise of the Photographs of Ms. KM’s Shorts, Underwear, and Injuries

       With respect to the photographic evidence, appellant has failed to show
defense counsel’s surprise was such that had trial defense counsel known about the
photographs in advance of trial the results of the proceeding would have been
different. In our view, as part of this burden, appellant must show that had trial
defense counsel known of the photographs in advance of trial his counsel would
have been either able to: 1) successfully object to the evidence; 2) undermine the
evidence by some other means, not already presented at trial; or 3) adjust their
overall strategy in a manner that would have changed the results of the proceeding.
Appellant has proffered none of these and provided nothing to support any theory as
to what would have been different.

        First, our own review of the record reveals, Ms. KM established a proper
foundation for the admission of the photographs. The photographs of the shorts and
underwear were admitted after she established the pictures fairly and accurately
represented the condition of both the shorts and underwear she was wearing on the
first night appellant violated her. She readily admitted that the circles made on the
underwear and the ruler in the photographs were the only exceptions to the



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conditions of the underwear from the condition present on the evening she wore
them. Ms. KM also established a proper foundation for the admission of the
photographs she took at SGT and Ms. Inyang’s residence of the bruises she sustained
as a result of appellant’s crimes against her. The location and timing of the bruises
was further corroborated by SGT Inyang’s identification of his own bedspread
depicted in the photograph. Had trial defense counsel learned of the photographs
prior to trial, the photographs still would have been admissible.

      Second, appellant’s trial defense counsel asked for and received an overnight
continuance upon completion of the government’s direct examination to review the
photos with a digital forensic examiner and to draft additional cross-examination
questions. This mitigated any surprise and allowed the trial defense counsel to
develop lines of attack to undermine the value of each set of evidence.

       With respect to the shorts and underwear, appellant’s trial defense counsel
undermined the evidence by cross-examining Ms. KM on her failure to turn the items
over to law enforcement for an entire month after the crimes occurred, her release of
the underwear to law enforcement only after having undergone a forensic sexual
assault examination, and her sole access to the items during this month-long time
frame. Trial defense counsel asked for and received an instruction on chain of
custody with respect to these items. Trial defense counsel further incorporated this
line of questioning into their overall theme that Ms. KM was a smart, manipulative
individual who knows the legal system, took advantage of appellant, and made a
false allegation against him. Trial defense counsel used the month-long delay to
argue the underwear was not what Ms. KM purported it to be, the government failed
to produce any forensic testing of the underwear corroborating Ms. KM’s claims,
and further used the photograph itself to challenge Ms. KM’s own description of the
items and events.

       With respect to the photographs of the bruises, trial defense counsel
established neither SGT Inyang nor his wife noticed any bruises on Ms. KM while at
their house and that Ms. KM did not have any trouble walking. Trial defense
counsel also established Ms. KM never sought to show Ms. Inyang any physical
injuries, contradicting Ms. KM’s express testimony. Trial defense counsel further
cross-examined the sexual assault examiner on her physical findings and established
the injuries she noted were consistent with many other sources aside from a sexual
assault, to include a consensual sexual encounter. Trial defense counsel was able to
incorporate these lines of questioning to argue that Ms. KM knew the legal system
and created the evidence of the bruises to further her false claim.

       Appellant has failed to establish that had his trial defense counsel been aware
of the photographs in advance of trial, anything further could have been done to
undermine this admissible evidence. While perhaps DNA and blood testing could
have affirmatively shown appellant’s DNA was not on the underwear, or that Ms.
KM’s blood was not on the underwear in an attempt to discredit her claim of being
on her menstrual cycle, this is mere speculation. It is appellant’s burden to show a



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reasonable probability that the results of trial would have been different.
Furthermore, any such evidence would be limited in its overall impact on the trial as
Ms. KM established her clothes had been laundered and the absence of such
incriminating evidence would not be exonerating. Further, trial defense counsel
already argued there was no evidence of appellant’s DNA on the items, no evidence
of menstrual blood, and that Ms. KM tampered with or created the evidence of the
assaults out of whole-cloth.

       Lastly, appellant has not proffered any rationale showing how prior
knowledge of these photographs would have changed any trial strategy such that it
would have affected the findings. Indeed the prejudice of any potential failure to
request discovery of the photographs is undercut by trial defense counsels’
incorporation of the evidence into their overall theme. We also note that the quality
of the evidence is limited, as the photographs appear to show nothing more than: an
unremarkable pair of pinkish shorts; dirty, slightly torn underwear; and minor
bruising. While the photographs corroborate Ms. KM’s testimony in some respects,
they undermine it in others. As such appellant has not met his burden to show a
reasonable probability of a different outcome had his trial defense counsel known of
the photographs in advance of trial.

                    2. The Surprise of the Uncharged Misconduct

       Appellant has failed to show any prejudice with respect to the surprise of Ms.
KM’s testimony regarding uncharged misconduct. Appellant cannot show prejudice
from a failure to interview Ms. KM without first establishing that Ms. KM would
have agreed to an interview. Ms. KM was a civilian witness and there is no right
under Article 46, UCMJ, to compel interviews. See gen. United States v. Guardado,
75 M.J. 889, 904-05 (Army. Ct. Crim. App. 2016) rev’d on other grounds, 77 M.J.
90 (C.A.A.F. 2017). Appellant has not provided any evidence that Ms. KM would
have agreed to an interview or that trial defense counsel would have been able to
learn of this intended testimony in advance of trial. Indeed, trial defense counsel
acted appropriately, objecting to the testimony, seeking an Article 39(a), UCMJ,
session outside of the presence of the panel, and requesting that the military judge
give a curative instruction. Any possible prejudice that occurred was cured by the
military judge’s instructions to disregard the testimony.

                  3. The Surprise of Ms. KM Seeing a Psychiatrist

       Appellant has not shown that Ms. KM would have agreed to an interview and
divulged that she saw a psychiatrist in advance of trial. At trial,for after Ms. KM
mentioned her psychiatrist, defense counsel immediately requested an in camera
review of Ms. KM’s mental health records. The military judge deemed this request
to be unwarranted under Military Rule of Evidence 513. Appellant has provided no
evidence to suggest that the request would have been otherwise warranted had it
been made pretrial. Thus, appellant has failed to demonstrate any prejudice




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whatsoever, let alone a reasonable probability the result of the proceedings would
have been different.

       Based on the facts of this case, we hold that appellant has failed to establish
ineffective assistance of counsel.

                     B. Unreasonable Multiplication of Charges

       Appellant alleges for the first time on appeal his charges were unreasonably
multiplied as he was convicted and sentenced for ten specifications, encompassing
three sexual encounters that occurred over a two to three day period. Although
appellant cites United States v. Paxton, for the proposition that claims of
multiplicity and unreasonable multiplication of charges are reviewed de novo,
Paxton involved preserved error. 64 M.J. 484, 490-91 (C.A.A.F. 2007). We address
unpreserved claims of unreasonable multiplication of charges from a plain error
analysis. See United States v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001) (holding
Courts of Criminal Appeals are “well within [their] authority to determine the
circumstances, if any, under which [they] would apply waiver or forfeiture” to issues
of unreasonable multiplication of charges); see also United States v. Chin, 75 M.J.
220, 223 (C.A.A.F. 2016).

       In order to establish plain error, appellant must show: (1) an error was
committed; (2) the error was plain, or clear, or obvious; and (3) the error resulted in
material prejudice to substantial rights. United States v. Paige, 67 M.J. 442, 449
(C.A.A.F. 2009). Appellant has failed to establish any error, let alone that such
error was plain.

       Pursuant to R.C.M. 307(c)(4), “[w]hat is substantially one transaction should
not be made the basis for an unreasonable multiplication of charges against one
person.” This principle is well established in military law. Quiroz, 55 M.J. at 336-
37. Thus, even where two charges are not technically multiplicious under the
elements test:

              [t]he prohibition against unreasonable multiplication of
              charges has long provided courts-martial and reviewing
              authorities with a traditional legal standard—
              reasonableness—to address the consequences of an abuse
              of prosecutorial discretion in the context of the unique
              aspects of the military justice system.

Id. at 338.

      We consider five factors to determine whether charges have been
unreasonably multiplied:




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              (1) Did the accused object at trial that there was an
              unreasonable multiplication of charges and/or
              specifications?;

              (2) Is each charge and specification aimed at distinctly
              separate criminal acts?;

              (3) Does the number of charges and specifications
              misrepresent or exaggerate the appellant’s criminality?;

              (4) Does the number of charges and specifications
              [unreasonably] increase the appellant’s punitive
              exposure?; and

              (5) Is there any evidence of prosecutorial overreaching or
              abuse in the drafting of the charges?

Id. at 338 (internal quotation marks omitted) (quoting United States v. Quiroz, 53
M.J. 600, 607 (N.M. Ct. Crim. App. 2000)). 2

        With respect to the first Quiroz factor, appellant did not raise this issue at
trial, and we therefore find this factor does not favor appellant.

        Regarding the second Quiroz factor, each charge and specification was aimed
at distinct criminal acts. Appellant was convicted of assaulting Ms. KM in different
ways over the two-day period. While mindful of United States v. Kremer, ARMY
20130592, 2015 CCA LEXIS 366, at *6 (Army Ct. Crim. App. 27 Aug. 2015)
(summ. disp.) pet. denied, 75. M.J. 117 (C.A.A.F. 2015) (“Appellant’s convictions
for rape and aggravated sexual assault as charged are predicated upon the same
continuing criminal act.”), this case is unlike Kremer in two ways. First, Kremer
involved a case of preserved error. Second, and more importantly, to dismiss the
specifications would be to no longer hold appellant accountable for his distinct
crimes. These charges arose from crimes that occurred separately from one another
and were thus aimed at separate criminal acts. Accordingly, we find this factor
weighs heavily in favor of the government.

       Regarding the third factor, the findings of guilty against appellant for his
repeated and varied assaults against Ms. KM do not exaggerate his criminality. The
panel found sufficient facts to hold appellant accountable for each act of
misconduct. This factor weighs in favor of the government.

      Regarding the fourth factor, appellant’s punitive exposure was not
unreasonably increased because it is not unreasonable for appellant to be held


2
  The bracketed alteration in the quotation reflects the holding of our superior court
that “unreasonably” should be used instead of “unfairly.” Quiroz, 55 M.J. at 339.


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accountable for each distinct act of misconduct. This factor weighs in favor of the
government.

       Finally, because the various acts addressed separate acts of criminal conduct,
there is no evidence of prosecutorial overreaching or abuse in the drafting of the
charges. Thus, the fifth factor weighs in favor of the government.

     We find the Quiroz factors weigh in favor of the government and no error was
committed.

                          C. Factual and Legal Sufficiency

        Although appellant frames this final issue as a challenge to the factual and
legal sufficiency of his convictions, he provides no argument with respect to the
latter. Nevertheless, consistent with our Article 66, UCMJ, responsibilities we
conducted both a factual and legal sufficiency review.

      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” we are “convinced of the accused’s guilt beyond a reasonable doubt.”
United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).

        Article 66(c), UCMJ, provides that this court may “weigh the evidence, judge
the credibility of witnesses, and determine controverted questions of fact.” When
exercising this authority, this court does not give deference to the decisions of the
trial court (such as a finding of guilty). United States v. Washington, 57 M.J. 394,
399 (C.A.A.F. 2002) (A court of criminal appeals gives “no deference to the
decision of the trial court” except for the “admonition . . . to take into account the
fact that the trial court saw and heard the witnesses.”).

       We note the degree to which we “recognize” or give deference to the trial
court’s ability to see and hear the witnesses will often depend on the degree to which
the credibility of the witness is at issue. United States v. Davis, 75 M.J. 537, 546
(Army Ct. Crim. App. 2015), aff’d on other grounds, 76 M.J. 224 (C.A.A.F. 2017).

       Given this “recognition,” we credit Ms. KM’s version of events. See also
United States v. Crews, ARMY 20130766, 2016 CCA LEXIS 127, at *11-12 (Army
Ct. Crim. App. 29 Feb. 2016) (mem. op.) (“The deference given to the trial court’s
ability to see and hear the witnesses and evidence—or ‘recogni[tion]’ as phrased in
Article 66, UCMJ—reflects an appreciation that much is lost when the testimony of
live witnesses is converted into the plain text of a trial transcript.”). Ms. KM’s
testimony was supported by, among other things, the testimony of several
individuals—some of whom were appellant’s friends—who corroborated that Ms.
KM was distraught after the numerous assaults. Ms. KM’s testimony was further
corroborated by the forensic examination that revealed evidence of physical injuries.




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       The test for legal sufficiency is “whether considering the evidence in the light
most favorable to the prosecution, a reasonable fact finder could have found all the
essential elements beyond a reasonable doubt.” United States v. Humpherys, 57 M.J.
83, 94 (C.A.A.F. 2002) (citations and internal quotation marks omitted). In
weighing questions of legal sufficiency, this court is “bound to draw every
reasonable inference from the evidence of record in favor of the prosecution.”
United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citations omitted). We
have carefully considered the evidence under this standard and the findings are
correct in law.

      The evidence here is factually and legally sufficient to support the verdict.

                                   CONCLUSION

      The findings of guilty and the sentence are AFFIRMED.

      Senior Judge CAMPANELLA and Judge WOLFE concur.

                                                FORTHE
                                               FOR  THECOURT:
                                                        COURT:




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




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