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

                               UNITED STATES, Appellee
                                            v.
                            Specialist SCOTT W. KOCH
                              United States Army, Appellant

                                        ARMY 20160107

                               Headquarters, Fort Hood
              Wade N. Faulkner and Rebecca K. Connally, Military Judges
           Lieutenant Colonel Travis L. Rogers, Acting Staff Judge Advocate


For Appellant: Colonel Mary J. Bradley, JA; Major Christopher Coleman, JA;
Captain Patrick J. Scudieri, JA (on brief).

For Appellee: Colonel Tania M. Martin, JA; Lieutenant Colonel Erik K. Stafford,
JA; Major Michael E. Korte, JA; Captain Tara O’Brien Goble, JA (on brief).


                                        29 January 2018
                                   ----------------------------------
                                    MEMORANDUM OPINION
                                   ----------------------------------

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

WOLFE, Judge:

      We address several issues in this appeal. After appellant was acquitted of
more serious offenses, a court-martial panel sentenced appellant to a dishonorable
discharge, eight years of confinement, total forfeiture of all pay and allowances, and
reduction to the grade of E-1 for three specifications of providing alcohol to minors
and two specifications of touching or grabbing his daughter’s buttocks. 1




1
  The panel found appellant guilty of three specifications of violating a Fort Hood
regulation prohibiting appellant from giving alcoholic beverages to a person under
the age of twenty-one, and two specifications of abusive sexual contact with a child
in violation of Article 92, 120, and 120b, Uniform Code of Military Justice [UCMJ],
10 U.S.C. §§ 892, 920, 920b (2006 & Supp. IV 2010; 2012).
KOCH—ARMY 20160107

       We initially address two errors assigned by appellant. The first is whether
there was sufficient evidence to support appellant’s convictions for abusive sexual
contact when he grabbed his daughter’s buttocks. Our conclusion that there is
sufficient evidence of appellant’s intent is a close one and relies on a close
evidentiary call, which we explain below. Second, we address appellant’s claim that
the government’s sentencing argument was improper. We find no plain error.

       Although not raised by appellant as assigned errors, we also address several
issues which merit relief. First, the military judge gave a Hills propensity
instruction which implicates one of the two sexual offenses of which appellant was
convicted. See United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016). Second, we
address the appropriateness of the sentence. Independent of our setting aside the
findings for one specification, we find the sentence to be too severe. In determining
the sentence that “should be approved,” each of us arrives at a different conclusion.
Senior Judge Mulligan would approve a sentence to confinement of six years. Judge
Febbo would approve a sentence of five years and six months. I would approve a
sentence of two years and six months. We reconcile these differences and,
reassessing the sentence after dismissing one specification, provide appellant relief
in our decretal paragraph.

                                   BACKGROUND 2

       In the fall of 2013, SS and AK were thirteen-year-old girls living on Fort
Hood. Miss AK was appellant’s stepdaughter. Around the time of Halloween, SS
and AK had a slumber party at appellant’s house. Both girls alleged that appellant
provided them with alcohol. The two girls decided to go for a walk. Appellant
insisted on joining them, and brought more alcohol. Once in the woods appellant
and the two girls played drinking games. The girls alleged that the behavior turned
sexual. They testified that appellant rubbed their genitals and had oral and vaginal
sex with them.

      Both girls also testified that appellant sometimes slapped AK’s buttocks.
Miss SS described it as being like a husband would slap his wife.




2
 Our recitation of facts in this section is for purposes of assisting the reader in
understanding the facts that were alleged at trial so that the rest of the opinion can
be understood in context. In doing so, here we are not exercising our fact-finding
power under Article 66(c), UCMJ. As we explain more fully below, appellant was
acquitted of most of the sexual offenses.


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KOCH—ARMY 20160107

                              LAW AND DISCUSSION

                  A. Legal and Factual Sufficiency of the Evidence

       Appellant was charged and convicted of two specifications of touching the
buttocks of his step-daughter, AK. Each offense alleged that the touching was a
“sexual contact” which required the government to prove that the touch was made
with an intent to “abuse humiliate, or degrade any person” or to “arouse or gratify
the sexual desire of any person.” See Manual for Courts-Martial, United States
(2012 ed.) [MCM], App. 28, ¶ 45.a.(t)(2), A28-3; MCM, ¶¶ 45b.a.(h)(1), 45.a.(g)(2). 3
Appellant alleges that there was insufficient evidence to support the convictions.

      In a submission pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982), that parallels the assigned error, appellant notes numerous non-criminal
circumstances “in which a parent would use his or her hand to slap/spank the
buttocks of a child.”

      At trial, the government focused its evidence on the sexual offenses of which
appellant was ultimately acquitted. 4 The two abusive sexual contact offenses
received passing attention. As a result, appellant’s assignment of error is not
without some merit and requires attention.

                 1. Legal sufficiency of the sexual contact offenses

       We review questions of legal sufficiency de novo. United States v. Ashby, 68
M.J. 108, 115 (C.A.A.F. 2009) (citation omitted). In conducting this legal
sufficiency review, “the relevant question an appellate court must answer is whether,
after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Oliver, 70 M.J. 64, 68 (C.A.A.F. 2011) (internal
quotation marks omitted) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979));
see also United States v. Herrmann, 76 M.J. 304, 307 (C.A.A.F. 2017).

       Miss AK testified that appellant would “touch my butt sometimes” and that
appellant “would slap or grab my butt” with “his hand.” Miss AK further testified
that appellant would hug her and kiss her while placing his tongue in her mouth.


3
  One specification alleged a violation of Article 120, UCMJ (2006). The second
specification alleged a violation of Article 120b, UCMJ (2012). For the purposes of
this discussion there is no substantive difference between the two statutes.
4
  Appellant was acquitted of one specification of indecent liberties with a child,
three specifications of rape of a child, one specification of abusive sexual contact
with a child, and assault, charged under Articles 120, 120b, and 128, UCMJ.


                                           3
KOCH—ARMY 20160107

Miss AK did not offer direct evidence as to appellant’s intent when touching her
buttocks.

      Miss SS testified as follows:

             Q. How would you describe the way [appellant] was
             touching his stepdaughter?

             A. He would slap it. Like a quick slap.

             Q. Can you compare it to the way he would touch someone
             else?

             A. He would touch his wife like that.

      Miss SS also agreed that the touching was inappropriate and that it was “not
any normal way that a father would touch their daughter.”

       Given the low threshold for establishing legal sufficiency, a reasonable
factfinder could infer from this testimony that appellant’s slapping of his
stepdaughter’s buttocks was with the required intent. Accordingly, we turn our
attention to the closer question of whether the evidence is factually sufficient.

                 2. Factual sufficiency of the sexual contact offenses

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

      While sufficient to survive a legal sufficiency review, the testimony of SS and
AK quoted directly above is, alone, insufficient to convince us beyond a reasonable
doubt that appellant touched AK’s buttocks with the required intent.

       However, there was substantial evidence in the record that appellant had a
sexual interest in his stepdaughter AK. AK testified that appellant masturbated in
her presence and had oral and vaginal intercourse with her. From this evidence, one
can infer that the touching of her buttocks was done with a sexual intent.
Concerning, however, is that this evidence formed the basis of the offenses for
which appellant was acquitted. Only if allowed to consider this evidence would we
find factually sufficient evidence to establish appellant’s intent. 5 But may we?


5
  We state this plainly for reasons of judicial economy in case we have erred in our
reasoning.


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KOCH—ARMY 20160107

       We believe the Court of Appeals for the Armed Forces’ (CAAF) decision in
United States v. Rosario answered this question in the affirmative when the court
held that:

             When the same evidence is offered at trial to support two
             different offenses, a Court of Criminal Appeals is not
             necessarily precluded from considering the evidence that
             was introduced in support of the charge for which the
             appellant was acquitted when conducting its Article 66(c),
             UCMJ, legal and factual sufficiency review of the charge
             for which the appellant was convicted. Defendants are
             generally acquitted of offenses, not of specific facts, and
             thus to the extent facts form the basis for other offenses,
             they remain permissible for appellate review.

76 M.J. 114, 117 (C.A.A.F. 2017).

       We conclude that we may consider the evidence in the record, to include
credible evidence of offenses of which appellant was acquitted, in reviewing the
factual sufficiency of the offenses for which appellant was convicted. The evidence
was admitted without limitation. See Military Rule of Evidence [Mil. R. Evid.] 105
(“When evidence which is admissible as to one party or for one purpose but not
admissible as to another party or for another purpose is admitted, the military judge,
upon request, shall restrict the evidence to its proper scope. . . .”); see also Mil. R.
Evid. 404(b). The military judge instructed the panel, without objection, that if
“evidence has been presented which is relevant to more than one offense, you may
consider that evidence with respect to each offense to which it is relevant.”

       The CAAF “has repeatedly concluded that a pattern of lustful intent,
established in one set of specifications, could be used by factfinders as proof of
lustful intent in a different set of specifications.” United States v. Tanksley, 54 M.J.
169, 175 (C.A.A.F. 2000) (citations omitted) (overruled in part on other grounds by
United States v. Inong, 58 M.J. 460, 461 (C.A.A.F. 2003)).

       “The nub of the matter is whether the evidence is offered for a purpose other
than to show an accused's predisposition to commit an offense.” Id. Here, (with a
fatal exception we discuss next), the military judge made clear that the panel could
not use propensity evidence when determining appellant’s guilt to the sexual contact
offenses for touching AK’s buttocks.

       In Tanksley, the CAAF rejected the accused’s suggestion that using evidence
of one offense to prove the accused’s intent as to another offense “diluted the
presumption of innocence.” Id. at 175. In United States v. Guardado, we similarly
ruled that the CAAF’s decision in Hills prohibiting the use of evidence from charged



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KOCH—ARMY 20160107

sex offenses did not extend to prohibiting intent evidence allowed by Mil. R. Evid.
404(b). United States v. Guardado, 75 M.J. 889, 895-96 (Army Ct. Crim. App.
2016), rev’d on other grounds, 77 M.J. __, 2017 CAAF LEXIS 1142 (C.A.A.F. 12
Dec. 2017). 6

       Given our understanding of Rosario and Tanksley we find the evidence
sufficient in all regards.

                                B. The Hills Instruction

       Although not an assigned error we identify an issue in the case that requires
relief. Over defense objection, the military judge announced her intention to
instruct the members of appellant’s propensity to commit sexual offenses based on
charged misconduct. See Mil. R. Evid. 414; Hills, 75 M.J. at 353. During an Article
39(a) session the military judge explained the offenses to which her ruling would
apply.

       Appellant was acquitted of each offense that would have been implicated by
the military judge’s ruling. This ordinarily would have mooted any prejudice from
the erroneous Hills instruction. 7

       However, the military judge did not instruct the panel as she intended.
Although the first half of the instruction correctly listed the specifications to which
the Hills instruction would apply, during the second half of the instruction the
military judge misspoke. Instead of applying the Hills instruction to Additional
Charge III, Specification 1 as intended, the military judge instructed the panel that
they could consider the accused’s propensity to commit sexual offenses as to
Additional Charge II, Specification 1. 8



6
 The CAAF declined to address whether the Mil. R. Evid. 404(b) instruction in
Guardado violated that court’s holding in Hills as the issue fell outside of the scope
of the issues granted by the court. 77 MJ __, 2017 CAAF LEXIS 1142 at *12 n.1.
7
  Although Specification 2 of Additional Charge III was included in the propensity
instruction, the panel was never instructed that they were allowed to consider the
appellant’s propensity to commit sex offenses when determining appellant’s guilt as
to this specification.
8
 As Additional Charge II had only one specification, it was listed in the Flyer as
“The Specification.” This specification, of which appellant was convicted, alleged
abusive sexual contact with a child, AK, in violation of Article 120, UCMJ.




                                           6
KOCH—ARMY 20160107

       Within the context of the entire trial it is clear that the military judge did not
intend to give a Hills instruction to The Specification of Additional Charge II. 9
However, the panel was not privy to the military judge’s ruling at the Article 39(a)
session. Thus, in determining whether the instructions given to the panel were clear
we must review any confusion from the viewpoint of the panel.

       The panel was instructed, in part, that they could consider propensity
evidence when determining guilt as to Additional Charge II, Specification 1.
Although this was inconsistent with the earlier part of the military judge’s
instructions, we cannot discount the possibility that the panel misunderstood the
instruction. As we look at a Hills error of constitutional dimension we are unable to
find the error to be harmless. Accordingly, we set aside the affected specification.

                                 C. Improper Argument

       Appellant alleges that the trial counsel made improper argument by
commenting on appellant’s pretrial silence, by imputing his own personal beliefs
into the trial, and by arguing evidence not admitted.

      We find that any error did not amount to plain error.

                                 1. Standard of Review

      In United States v. Kelly we found that an appellant who fails to object to
improper argument waives, not forfeits, the error. 76 M.J. 793, 797-98 (Army Ct.
Crim. App. 2017). In doing so we applied the plain language of the rule, as well as
our superior court’s interpretation of identical language in a different rule. In
United States v. Ahern, the CAAF described identical language in Mil. R. Evid. 304
(“Confessions and admission”) as “unambiguously” prescribing waiver. 76 M.J.
194, 197 (C.A.A.F. 2017). Indeed, we noted that the CAAF found that this court had
committed error by testing for plain error when Ahern was before our court. Kelly,
76 M.J. at 797 (citing Ahern, 76 M.J. at 198).

      Our sister court in the Department of the Navy initially followed our lead.
See United States v. Motsenbocker, No. 201600285, 2017 CCA LEXIS 539, *30
(N.M. Ct. Crim. App. 10 Aug. 2017). But then on reconsideration, that court
thought better of it. United States v. Motsenbocker, No.201600285, 2017 CCA
LEXIS 651, *7 (N.M. Ct. Crim. App. 17 Oct. 2017) (citing United States v.
Pabelona, 76 M.J. 9, 11 (C.A.A.F. 2017); United States v. Fletcher, 62 M.J. 175,
179 (C.A.A.F. 2005); and United States v. Diffoot, 54 M.J. 149, 151 (C.A.A.F.



9
 The error was repeated in both the written and oral instructions provided to the
panel.


                                            7
KOCH—ARMY 20160107

2000), in distinguishing Ahern and applying a plain error analysis to allegations of
improper argument not preserved by an objection).

      Regardless of how persuasive our sister court’s discussion of Ahern as applied
to unpreserved error may be (see concurring and dissenting opinions below) we are
obligated to follow the precedent of this Court. 10

       Our superior court has granted a petition to decide this issue. United States v.
Kelly, No. 17-0559/AR (C.A.A.F. 20 Dec 2017) (order). As we find any error in this
case does not amount to plain error, for purpose of judicial economy we apply
waiver but will also test for plain error. 11

                        2. Commenting on appellant’s silence

     Appellant alleges that the italicized language below in the government’s
argument was an improper comment on appellant’s right to silence.

             That night during a sleepover the accused, Specialist
             Koch, gave them alcohol, walked with them into the
             woods, and raped them both.

                    Now, keeping secrets is hard. There are three
             people who knew the secret. The two girls and the
             accused. It is fair to say that he wasn’t talking. As far as
             he knew, neither were these two girls. Fortunately, that
             secret was too much to bear for one of those girls, [SS].
             So, now over two years later on New Year ‘s [Eve] 2014
             going into ‘15, she had to tell her tale.

(emphasis added).



10
  In any event, we see a tension in the law. If the logic of Ahern applies to Rule for
Court-Martial [R.C.M.] 919 (“Argument by counsel on findings”), then an accused
waives unpreserved error in argument, arguably contrary to a large volume of case
law. If Ahern does not apply to R.C.M. 919, it means that identical language in the
Manual for Courts-Martial “unambiguously” means waiver in one instance but
forfeiture in the other.
11
  If we faulted in Kelly, it was trying to resolve this conflict too early instead of
leaving it to when it was squarely presented for our superior court to resolve. The
difference between the two standards of review will only matter when an accused
would be entitled to relief under a plain error standard but not entitled to relief upon
a finding of waiver. That was not the case in Kelly. Nor is it the case here.


                                           8
KOCH—ARMY 20160107

       Appellant alleges that the language above was “a direct comment on
appellant’s right to remain silent” and it “encouraged the panel to draw a negative
inference on appellant not speaking to law enforcement.”
       “A constitutional violation occurs only if either the defendant alone has
information to contradict the government evidence referred to or the jury ‘naturally
and necessarily’ would interpret the summation as comment on the failure of the
accused to testify.” United States v. Carter, 61 M.J. 30, 33 (C.A.A.F. 2005)
(quoting entirely United States v. Coven, 662 F.2d 162, 171 (2d Cir. 1981)). Taken
in context of the entire argument, in a case where the accused testified, we do not
find plain error. The comment does not “clearly” or “obviously,” or “naturally and
necessarily” improperly comment on appellant’s right to silence during the pre-
investigative stage of the case to which the trial counsel was referring.

                     3. Inserting personal beliefs into argument

      Appellant alleges that the italicized language below improperly inserted the
prosecutor’s beliefs into the trial.

             They [SS and AK] are in seventh grade, middle school,
             and they are drinking rum and vodka in the presence of
             one of their parental figures at night. And contrary to
             discouraging them, he [appellant] is actually encouraging
             them. They are passing the bottle around. They are all
             having a good time.

                      And since the accused testified that he drinks pretty
             regularly on Friday nights, his tolerance is reasonable to
             infer is pretty high. I don’t think those 13 year old’s [sic]
             tolerance is very high. And that is what he was counting
             on. Because even though had [sic] groomed [AK] for
             years and crossed that line every step of the way, he had
             never done it with [SS] before. He didn’t know how she
             was going to react. So, a little liquid courage maybe. A
             little liquid consent could help.

(emphasis added).

       Appellant correctly notes that the trial counsel may not give his opinion as to
the weight of the evidence in the manner that he did. See Fletcher, 62 M.J. at 179-
80. While the trial counsel could have argued, as he did with his argument regarding
the accused’s tolerance of alcohol, that it is fair inference from the evidence that
AK’s and SS’s tolerance to alcohol was low, his personal opinion on the matter was
irrelevant. We do not, however, find plain error. The argument above was
addressing the sexual offenses of which the panel acquitted appellant. Accordingly,



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KOCH—ARMY 20160107

we do not find appellant has met his burden of establishing material prejudice to a
substantial right.

                  4. Improper use of statistics and expert testimony

        During their case in chief the government qualified Dr. Turner as an expert
witness to explain counter-intuitive behavior of child sex victims. Dr. Turner
testified that the rate at which victims of child sexual assault report the offense was
“sometimes” “as []low as 2-6 percent.” During cross-examination Dr. Turner was
asked if when an alleged victim tells inconsistent stories it could be because she had
fabricated the allegation. Dr. Turner testified “[i]t is possible.”

       In appellant’s closing argument appellant argued that a government expert
witness had testified that it was possible that AK and SS had fabricated the
allegations. On appeal, appellant objects to a portion of the government argument
made in rebuttal:

                    Dr. Turner testified that there are some studies
             showing that reporting of sexual abuse by girls is as low
             as 2 to 6 percent. 2 to 6 percent of society. Yet, somehow
             this small fraction are both liars who made this story up
             whole cloth.

                    Now, the defense made a big deal about [how Dr.
             Turner] said that it is possible that [AK] and [SS] made
             this up. Anything is possible folks. And Dr. Turner
             would not be much of an expert if she said, “No,
             absolutely not. I am a human lie detector. I can look in
             their eyes and can see by your [sic] pupils that you are
             telling the truth.” That is not what she is here to do. She
             is here to educate you on how victims of trauma,
             adolescent victims, react. Anything is possible, but is it
             probable is your question? And the fact that something is
             possible and possible means that it is half of one percent
             likelihood doesn’t create reasonable doubt.

(emphasis added).

       Appellant claims the government, by this argument, conveyed the message
that “because so few children report sexual abuse, then SS and AK, must be telling
the truth.” To the extent that appellant argues that the first italicized sentence is
illogical and therefore improper, we agree. Dr. Turner testified about child victim
rates of reporting. She did not offer testimony about rates of false reports, nor did
she testify that children honestly report child sex abuse. We see the trial counsel’s



                                          10
KOCH—ARMY 20160107

argument as being nonsense—in that it has no logical sense. We do not however
see, as appellant argues, that “the government vouched for the witnesses.” As the
lack of coherence in the trial counsel’s argument was as apparent to the panel as it is
to us, appellant has not established his burden of demonstrating material prejudice to
a substantial right.

        Appellant also argues that the second italicized question was “misleading
argument regarding probable cause.” Appellant further argues that the argument
“increased the defense burden.” We understand appellant’s argument to be that the
trial counsel improperly assigned a burden to the defense and mischaracterized the
definition of reasonable doubt. Any error was corrected by the military judge who
correctly defined reasonable doubt and instructed the panel that “any inconsistency
between what counsel have said about the instructions and the instructions which I
give you, you must accept my statement as being correct.” Accordingly, we find no
prejudice and no plain error.

                           5. Arguing facts not in evidence

       During the defense case appellant’s wife was called as a witness. The defense
laid a foundation for an opinion of AK’s truthfulness. However, before giving the
opinion, the government asked to voir dire the witness. The record contains the
following:

             Q. [CDC] You feel like you have known [AK] long
             enough to assess her character for truthfulness?

             A. Yes.

             Q. [CDC] What is that assessment?

             ATC: Objection

             MJ: Basis.

             ATC: Lack of foundation. I request to voir dire the
             witness.

             ....

             Q [ATC]. Mrs. Koch, you remember that I called you on
             15 February 2015?

             A. Yes.




                                          11
KOCH—ARMY 20160107

             Q. To talk about your testimony today?

             A. Yes.
             ....

             Q. And you remember during that conversation I asked
             you, you know, “In terms of the honesty of your daughter,
             do you think that she is generally an honest person?”

             A. Mm-hmm.

             Q. And you said, “Yes.”

             A. At the time, yes.

      During a subsequent Article 39(a) session, outside the presence of the panel
members, Mrs. Koch was asked by the military judge whether her opinion of her
daughter was “[t]ruthful or untruthful, would you testify that she is untruthful?”
Mrs. Koch answered “In this particular case, I believe that she is being untruthful.
Generally not.”

       The military judge then clarified the nature of Mrs. Koch’s expected character
testimony. We find that looking at the testimony as a whole, Mrs. Koch’s offered
opinion of her daughter’s character for truthfulness was based on her assessment that
her daughter’s allegations against appellant were false. In short, Mrs. Koch was of
the opinion that her daughter was generally truthful but was not being truthful in
regard to the pending charges.

      The military judge then sustained a government objection to Mrs. Koch
providing an opinion as to her daughter’s truthfulness. 12

      In rebuttal argument the government argued that Mrs. Koch had testified that
AK is a “[g]enerally honest person.”

       Appellant correctly argues on appeal that the trial counsel’s argument
mischaracterized what had happened. Mrs. Koch never gave an opinion as to AK’s
character for truthfulness. Rather, the military judge sustained the government’s
objection before she could answer the defense counsel’s question. Instead what had
happened was that the government–while voir diring the witness–elicited an out of

12
   In an assignment of error we do not directly address, appellant alleges that the
exclusion of Mrs. Koch’s testimony was prejudicial error. We disagree. Given that,
at least initially, her “opinion” testimony was essentially an opinion on whether she
believed her daughter’s allegations (i.e. lie detector testimony) the military judge
was well within her discretion to exclude the testimony.


                                          12
KOCH—ARMY 20160107

court statement by Ms. Koch that she had previously assessed her daughter as
generally being honest.

        On appeal, appellant argues that Ms. Koch’s answer to the trial counsel’s voir
dire questions were not substantive evidence. Accordingly, appellant argues, the
trial counsel erred when he argued that the testimony had come in substantively.

       We see the issue differently. Appellant did not object or request a limiting
instruction for the testimony elicited by the trial counsel. Accordingly, we see the
issue as whether the military judge plainly erred by not sua sponte issuing a limiting
instruction. Without an objection or limiting instruction the panel was not instructed
on how they could consider the testimony.

       When “evidence that is admissible against a party or for a purpose–but not
against another party or for another purpose–the military judge, on timely request,
must restrict the evidence to its proper scope and instruct the members accordingly.”
Mil. R. Evid. 105 (emphasis added). As our sister court said in United States v.
Borland, “[t]he trial defense counsel did not ask the military judge to restrict the
evidence to its proper scope and to instruct the members accordingly. Since no
limiting instruction was requested, none was required.” 12 M.J. 855, 857
(A.F.C.M.R. 1981) (citing Mil. R. Evid. 105; United States v. Washington, 592 F.2d
680 (2d Cir. 1979)); see also United States v. Lewis, 693 F.2d 189, 197 (D.C. Cir.
1982) (no obligation on part of trial judge to give limiting instruction as to
uncharged acts used to prove a scheme where no request was made). Nonetheless,
“as a general matter instructions on limited use are provided upon request under
M.R.E. 105, the rule does not preclude a military judge from offering such
instructions on his or her own motion, [] and failure to do so in an appropriate case
will constitute plain error.” United States v. Kasper, 58 M.J. 314, 320, 21 (C.A.A.F.
2003) (citations omitted).

        However, in the context of the entire case we do not find any clear or obvious
error. United States v. Gomez, 76 M.J. 76, 81 (C.A.A.F. 2017). This is not the case
where “in the context of the entire trial . . . the military judge should be ‘faulted for
taking no action’ even without an objection.” United States v. Burton, 67 M.J. 150,
153 (C.A.A.F. 2009) (quoting United States v. Maynard, 66 M.J. 242, 245 (C.A.A.F.
2008)). As the drafter’s analysis to Mil. R. Evid. 105 clarifies, when adopted the
rule “overrule[d]” prior cases which had placed the burden on the military judge and
it is “compatible with the general intent of both the Federal and Military Rules in
that they place primary if not full responsibility upon counsel for objecting to or
limiting evidence.” Mil. R. Evid. 105 analysis at A22-4. “Indeed, we have
explained that there are occasions when, for tactical reasons, defense counsel may
wish to forego such a limiting instruction because it might focus the jury’s attention
on the damaging evidence.” United States v. Rhodes, 314 U.S. App. D.C. 117, 62
F.3d 1449, 1453 (1995) (vacated on other grounds, 517 U.S. 1164 (1996)).



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KOCH—ARMY 20160107


      We do not find the military judge plainly erred by either: 1) failing to sua
sponte issue a limiting instruction; or 2) failing to sua sponte correct the trial
counsel’s argument.

                            D. Sentence Appropriateness

                                    1. The Sentence

       In a personal submission made pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982), appellant asks us to review the appropriateness of his sentence.
All three judges on this panel find appellant’s submission to have merit, albeit to
different degrees. Our analysis here is initially separate from our reassessment of
the sentence after setting aside one finding for a Hills error.

       Appellant was convicted of three violations of a general order for providing
alcohol to minors as well as two specifications of abusive sexual contact for
touching his stepdaughter’s buttocks. For this conduct, appellant was sentenced to
be dishonorably discharged from the Army, eight years confinement, forfeiture of all
pay and allowances, and reduction to the grade of E-1.

      Appellant describes his sentence as “too severe in contrast to [the]
offense[s].” Appellant specifically asks that we “grant [him] clemency in the form
of Time Served (7 years to be taken off my 8 year sentence).”

       We are not authorized to grant clemency. United States v. Nerad, 69 M.J.
138, 148 (C.A.A.F. 2010) “Clemency is a highly discretionary command function of
a convening authority.” United States v. Travis, 66 M.J. 301, 303 (C.A.A.F. 2008)
(citations omitted).

       However, we must nonetheless determine whether the sentence is
“appropriate.” In doing so we “bring to bear [our] wisdom, experience, and
expertise” in “consideration of sentence appropriateness.” United States v.
Hutchison, 57 M.J. 231, 234 (C.A.A.F. 2002). “The breadth of the power granted to
the Courts of Criminal Appeals to review a case for sentence appropriateness is one
of the unique and longstanding features of the Uniform Code of Military Justice.”
Id. at 233. Our review includes, but is not limited to “consideration of uniformity
and evenhandedness of sentencing decisions.” Id. at 234 (quoting United States v.
Sothen, 54 M.J. 294, 296-97 (C.A.A.F. 2001).

      The offenses of which appellant stands convicted, especially when one
considers the totality of the circumstances in which they were committed, are not
minor offenses. They are serious offenses which warrant serious punishment.




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KOCH—ARMY 20160107

       Nonetheless, we may not approve a sentence that is grossly disproportionate
to appellant’s crimes, substantially more than is retributively necessary, exceeds the
requirements of general and specific deterrence, and ultimately may undermine
confidence in military justice if appellant is seen as being punished more than his
“just deserts.” Although each of us disagrees as to the appropriate amount, we find
in this case that the sentence as approved by the convening authority is too severe
and, accordingly, we provide appellant relief in the decretal paragraph.

                                 2. R.C.M. 1006(d)(1)

        Rule for Court-Martial 1006(d)(1) reads as follows: “Duty of members. Each
member has the duty to vote for a proper sentence for the offenses of which the
court-martial found the accused guilty, regardless of the member’s vote or opinion
as to the guilt of the accused.” (emphasis added). The sentencing instructions given
by the military judge in this case did not include the second clause of the rule (the
italicized language above) that the sentence must be determined “regardless of the
member’s vote or opinion as to the guilt of the accused.” The instructions did,
however, follow the standard instructions in the Military Judges’ Benchbook. See
Dep’t of Army Pam. 27-9, Legal Services: Military Judges’ Benchbook
[Benchbook], para. 8-30-20 (10 Sept. 14) (“It is the duty of each member to vote for
a proper sentence for the offense(s) of which the accused has been found guilty.”).

      While we have researched the issue, we have not found any case or analysis
which explains why the standard Benchbook instructions omit instructing the
members on their duties in full accordance with the rule.

       However, we cannot attribute appellant’s sentence in this case to the failure to
fully instruct the panel on the duties prescribed by R.C.M. 1006(d)(1). It is nigh
impossible to know how or why a panel sentenced an accused to a particular
sentence. We do not find prejudicial error, let alone (as there was no objection)
plain error, in the instructions given in this case.

       Appellant’s relatively high sentence to confinement could be attributable to
his mendacious testimony, his record of nonjudicial punishment for using cocaine,
and the other evidence in the record. Or, appellant’s sentence could simply reflect
that court-martial sentences are left to the discretion of the court-martial and that in
any system with such discretion, it will be exercised within a range of permissible
outcomes. In any event, our sentence appropriateness review under Article 66(c)
serves as a check on unnecessarily severe sentences.

       Rule for Court-Martial 1006(d)(1) properly tells a panel member that they
must vote for the appropriate sentence without regard to how they voted or viewed
the evidence during the findings portion of the trial. In other words, it is the “duty”




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KOCH—ARMY 20160107

of the member to set aside their personal belief on the accused’s guilt during
sentencing and instead vote on a sentence based on the court-martial’s findings.

       We can discern no reason not to fully instruct the panel in accordance with its
duties as prescribed by R.C.M. 1006(d)(1). Indeed, because the UCMJ does not
require unanimous verdicts, such an instruction may be more necessary in the
military justice system than in comparable civilian courts.

       Non-unanimous verdicts require that panel members, on occasion, are
required to vote for a sentence based on court-martial findings with which they do
not agree. The instruction that the sentence must be determined “regardless of the
member’s vote or opinion as to the guilt of the accused,” in combination with the
other instructions, further reduces the danger that a panel member will improperly
bring his or her opinion from findings into their sentence deliberation.

       Take, for example, an eight member panel where five panel members vote to
find an accused guilty of a serious offense. As it takes the agreement of six
members to convict the accused, the accused will be acquitted of the serious offense.
If such a case proceeds to sentencing because of other less serious offenses it will
again require six of the eight members to agree on the sentence. In this
hypothetical, at least three panel members who believed the accused was guilty of
the serious offenses must nonetheless agree on the punishment for the less serious
offense.

       The possible danger is that, absent instructing the panel in accordance with
R.C.M. 1006(d)(1), a panel member who believed the accused guilty of more serious
offenses will import that belief into his or her determination of the appropriate
sentence. While the standard instruction, Benchbook, para. 8-3-20, tells the
members they have a duty to determine proper sentence only for the offenses of
which the court-martial found the accused guilty, they are not specifically told that
the “proper sentence” is made without reference to their vote or opinion during
findings.

                                   CONCLUSION

      Additional Charge II and its specification are SET ASIDE and DISMISSED.
The remaining findings are AFFIRMED.

      A majority of the court finds that a dishonorable discharge, five years and six
months confinement, forfeiture of all pay and allowances, and reduction to the grade
of E-1 should be approved for appellant’s offenses.

     However, given that we set aside Additional Charge II and its specification,
we must also reassess the sentence. Reassessing the sentence on the basis of the



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KOCH—ARMY 20160107

error noted, the entire record, and in accordance with the principles of United States
v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013), we AFFIRM only so much of
the sentence as provides for a dishonorable discharge, five years confinement,
forfeiture of all pay and allowances, and reduction to the grade of E-1. All rights,
privileges, and property, of which appellant has been deprived by virtue of that
portion of the findings set aside by this decision, are ordered restored.

WOLFE, Judge, concurring.

      All three judges on the panel arrive at different conclusions as to the
appropriate sentence in this case. In my assessment after reviewing the entire record
I would initially approve a dishonorable discharge, confinement for two years and
six months, total forfeiture of all pay and allowances, and reduction to the grade of
E-1. In my view this sentence adequately punishes appellant for the offenses of
which he was ultimately convicted. However, I also agree with Judge Febbo that–in
any event –we should not approve a sentence of more than five years of
confinement. Accordingly I concur with the sentence.

     I would also revisit our holding in Kelly that the failure to object to errors in
argument waives, rather than forfeits, the error. 13

MULLIGAN, Senior Judge, dissenting, in part.

       I agree with all parts of the opinion except for our assessment of the sentence.
I would initially approve only so much of the sentence as extends to a dishonorable
discharge, confinement for six years, total forfeiture of all pay and allowances, and
reduction to the grade of E-1. In light of the dismissed specification, I would only
affirm a dishonorable discharge, confinement for five years and six months, total
forfeiture of all pay and allowances, and reduction to the grade of E-1.

       For the reasons stated by Judge Febbo I would likewise not revisit our
decision in United States v. Kelly, 76 M.J. 793 (Army Ct. Crim. App. 2017).

FEBBO, Judge, concurring.

                             A. Sentence Appropriateness

      In giving individualized consideration to this particular appellant, the nature
and seriousness of the offenses, appellant’s record of service, the record of trial, and

13
  I was the author of this Court’s opinion in Kelly. Nonetheless, I am persuaded by
our sister court’s treatment of the issue in Motsenbocker that we (or at least I)
overstepped. While I recognize that the issue is now squarely before the CAAF, I
would not wait to revisit the issue.



                                           17
KOCH—ARMY 20160107

other matters presented by appellant in extenuation and mitigation (to include
R.C.M. 1105 and 1106 matters), I would initially approve only so much of the
sentence as extends to a dishonorable discharge, confinement for five years and six
months, total forfeiture of all pay and allowances, and reduction to the grade of E-1.
I am mindful that the panel had the benefit of seeing and hearing the evidence and
demeanor of the government and defenses witnesses which may explain the panel’s
sentence to confinement.

       Trial court judges and panel members are responsible for determining a proper
sentence. Article 66(c), UCMJ, requires us to take into account that the trial court
saw and heard the evidence. In conducting our sentence appropriateness review, we
review the factors presented and considered by the panel in sentencing “to include:
the sentence severity; the entire record of trial; appellant's character and military
service; and the nature, seriousness, facts, and circumstances of the criminal course
of conduct.” United States v. Martinez, 76 M.J. 837, 841-42 (Army Ct. Crim. App. 5
Sep. 2017). The panel was presented evidence in extenuation and mitigation, to
include appellant’s combat duty from his deployment to Iraq and his receiving a
Combat Action Badge (CAB). The panel was also presented with evidence in
aggravation, evidence of appellant’s lack of rehabilitative potential, and negative
personnel records of the appellant.

       The Article 92 offenses for violating a general order by providing alcohol to
minors, the Article 120 abusive sexual contact, and the Article 120b lewd act with a
minor were serious offenses and undermined appellant’s status as a former
noncommissioned officer (NCO). The panel was instructed that the maximum
punishment for which appellant was found guilty included a dishonorable discharge,
forty-one years confinement, total forfeitures and reduction to E-1. The panel
sentenced appellant to less than 20% of the total maximum confinement.

       During sentencing, in considering appellant’s rehabilitative potential, the panel
was given a mendacity instruction if they concluded appellant willfully and materially
lied under oath to the court about the violation of the general order and abusive sexual
contact offenses. In considering appellant’s character and military service, the panel
was presented evidence about appellant’s disciplinary history. Appellant received
nonjudicial punishment under Article 15, UCMJ, and reduced from Sergeant to
Specialist for use of cocaine while he was pending these court-martial charges. At the
time appellant provided alcohol to minors and used cocaine, he was a trained Unit
Prevention Leader (UPL) entrusted with keeping his unit free of drugs and alcohol
abuse. When appellant provided alcohol to minors, he was an NCO, in his late 20s,
entrusted to follow lawful regulations and entrusted with the safety and welfare of
children while they were at his house. Instead, in order to socialize and party with
seventh-grade teenage girls, appellant provided thirteen-year-old minors alcohol at his
on-post quarters and outside in the woods, to the point where they became intoxicated.
In providing the alcohol, appellant knew his actions were wrong and informed one of



                                          18
KOCH—ARMY 20160107

the minors, “what happens in Vegas, stays in Vegas, and what happens in this house
stays in this house.” In addition, appellant slapped, touched, and grabbed his thirteen-
year-old stepdaughter’s buttocks in a sexual manner. Appellant’s lewd acts had an
adverse impact on her, made her feel like just an object, caused her to feel like less of
a person, and undermined her trust in people.

       Consistent with following and applying the plain language of the rules, I
likewise see no harm in instructing panels with the full provisions of R.C.M. 1006.
Even if not part of the Benchbook instructions, if an accused thought it was
beneficial for sentencing, his defense counsel could request the military judge to
instruct the panel with this additional language. Since instructions are not read in
isolation, I do not find any error or prejudice in appellant’s sentencing instructions.

       The panel instructions before findings and court-martial procedure reinforce
the presumption of innocence and the distinction between sentencing the guilty from
the innocent. The evidence presented at sentencing, the arguments made by counsel,
and instructions are limited to sentencing an accused for only findings of guilty.
The military judge instructed the panel members to sentence appellant only for the
offenses for which he was found guilty. R.C.M. 1006(d)(1) also clearly states that
the members have a “duty to vote for a proper sentence for the offenses of which the
court-martial found the accused guilty.” (emphasis added).

       Although I concur with the opinion’s treatment of R.C.M. 1006, I read the
second clause of R.C.M. 1006(d)(1) as directed more at members who voted for
findings of not guilty and explaining their duty to vote for a proper sentence even if
they personally do not believe appellant committed the offense. For those members,
they cannot abstain and must vote “regardless of the member’s vote or opinion as to
the guilt of the accused.” Id.

                              B. Sentence Reassessment

        In light of the dismissed specification, there has been a change in the penalty
landscape from a maximum of 41 years confinement to 26 years confinement.
However, the nature of the remaining offenses captures the gravamen of appellant’s
criminal conduct to include the aggravating circumstances. In considering the
totality of the circumstances of the remaining offenses, and applying United States
v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and United States v. Sales, 22
M.J. 305, 307 (C.A.A.F. 1986), I would affirm a dishonorable discharge,
confinement for five years, total forfeiture of all pay and allowances, and reduction
to the grade of E-1.




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KOCH—ARMY 20160107

                              C. United States v. Kelly

       Additionally, I see no reason to revisit United States v. Kelly, 76 M.J. 793
(Army Ct. Crim. App. 2017), as Judge Wolfe suggests. I would apply the plain
language of R.C.M. 919(c). As CAAF stated in United States v. Reese, courts
“apply the ordinary rules of statutory construction in interpreting the R.C.M.” 76
M.J. 297, 301 (C.A.A.F. 2017) (analyzing the plain language of R.C.M. 603(d)).
R.C.M. 919(c) clearly states that an appellant who fails to object to an improper
argument thereby waives objection. 14 The rule does not discuss forfeiture. R.C.M.
919(c) encourages resolution of potential errors at trial. Just as important, when
arguing before a panel, if an objection that an argument is improper is sustained, the
military judge can “immediately instruct the members that the argument was
improper and that they must disregard it.” See, R.C.M. 919(c) discussion. In
extraordinary cases, the military judge can declare a mistrial. Without objections
the parties do not have an opportunity to argue their positions before the military
judge, the military judge is precluded from deciding the issue, and the trial court is
deprived of establishing a full record of the issue for appeal. As we did in
appellant’s appeal, as part of our Article 66(c), UCMJ, review the parties can still
argue whether the court should leave the appellant’s waiver intact, or correct an
error alleged for the first time on appeal. United States v. Chin, 75 M.J. 220, 223
(C.A.A.F. 2016). However, in applying and following the R.C.M., the issue is more
properly framed and does not ignore the plain language of the rules. The CAAF will
clearly decide this issue when they consider United States v. Kelly, No. 17-0559/AR
(C.A.A.F. 20 Dec 2017) (order).



                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




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




14
  The use of the term “waiver” was intentional and the R.C.M. is consistent with
applying waiver for failure to objections made during arguments in both findings
and sentencing. See R.C.M. 919(c) and 1001(g)


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