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

                          UNITED STATES, Appellee
                                       v.
                       Specialist NICHOLAS S. MARCUM
                         United States Army, Appellant

                                   ARMY 20150500

                    Headquarters, United States Army Alaska
                       Samuel A. Schubert, Military Judge
    Lieutenant Colonel Rana D. Wiggins, Acting Staff Judge Advocate (pretrial)
          Colonel Erik L. Christiansen, Staff Judge Advocate (post-trial)

For Appellant: Captain D. Cody Cheek, JA; Mr. Philip D. Cave, Esquire;
Mr. J. Thomas Province, Esquire (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Melissa Dasgupta Smith, JA (on brief).


                                      5 May 2017
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                               SUMMARY DISPOSITION
                              ----------------------------------
Per Curiam:

       An officer panel sitting as a general court-martial convicted appellant,
contrary to his plea, of rape of a child in violation of Article 120b, Uniform Code of
Military Justice, 10 U.S.C. § 920b (2012 & Supp. I 2014) [hereinafter UCMJ]. The
panel sentenced appellant to a dishonorable discharge, confinement for twenty years,
forfeiture of all pay and allowances, and reduction in grade to E-1. The convening
authority approved the sentence as adjudged.

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises two assignments of error, one of which merits discussion but no relief.
Appellant personally raised matters pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982), which we find, after due consideration, to be without merit.

                                   BACKGROUND

       At the time of the offense, appellant was a member of the 9th Army Band,
stationed at Fort Wainwright, Alaska. On 14 May 2014, appellant invited Sergeant
First Class (SFC) LH, a fellow band member, to his house for dinner. Appellant’s
MARCUM—ARMY 20150500

invitation was also extended to SFC LH’s family, which included SFC LH’s fifteen-
year-old daughter, MH. While at the house, MH felt uncomfortable and nervous
because, unbeknownst to SFC LH, appellant had previously sent MH text messages
expressing his attraction to her. To calm her stress, MH furtively drank alcohol
throughout the evening. Sergeant First Class LH and his family stayed late into the
evening and ultimately spent the night at appellant’s house.

       Between 0100 and 0200, MH and her younger brother went to sleep in
separate rooms upstairs near appellant’s room, while SFC LH and his wife slept
downstairs. Soon thereafter, appellant entered the room where MH was sleeping and
moved the lower half of her body so it was hanging off the bed. Although still
“foggy” from drinking alcohol, MH slowly awoke and recognized appellant was
restraining her with his hands and the weight of his body. Appellant took his hand
off MH’s mouth, pulled down her pants, and forced his penis into her vagina. When
appellant was finished, he kissed her chest and left the room. Shortly thereafter, MH
made a distressed telephone call to her best friend. While MH had no memory of the
telephone call, her best friend described MH as sounding scared because appellant
had sex with her despite her struggling against him.

                             LAW AND DISCUSSION

          Accumulation of Errors through Improper Government Argument

        On appeal, appellant asserts trial counsel committed an accumulation of errors
during findings and presentencing arguments, “mostly not objected to, that
individually may not have been prejudicial, but combined served to deny appellant a
fair trial . . . .” However, “[f]ailure to object to improper argument before the
military judge begins to instruct the members on findings shall constitute waiver of
the objection.” Rule for Courts-Martial 919(c). Because the cumulative error
doctrine applies to preserved and forfeited errors, appellant’s waiver of the majority
of the alleged errors substantially weakens his claim. See United States v. Dollente,
45 M.J. 234, 242 (C.A.A.F. 1996) (“[W]hen assessing the record under the
cumulative error doctrine, courts ‘must review all errors preserved for appeal and all
plain errors.’”); see also United States v. Pope, 69 M.J. 328, 335 (C.A.A.F. 2011)
(under the cumulative error doctrine, reviewing de novo “[t]he cumulative effect of
all plain errors and preserved errors”).

      While appellate courts review forfeited issues for plain error, appellate courts
“do not review waived issues because a valid waiver leaves no error to correct on
appeal.” United States v. Ahern, __ M.J. ___, 2017 CAAF LEXIS 292, at *7
(C.A.A.F. Apr. 20, 2017) (citing United States v. Gladue, 67 M.J. 311, 313
(C.A.A.F. 2009), and United States v. Campos, 67 M.J. 330, 332 (C.A.A.F. 2009))
(emphasis added). Ultimately, whether an issue has been waived is a question of
law reviewed de novo. Ahern, __ M.J. at ___, 2017 CAAF LEXIS 292, at *8.

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MARCUM—ARMY 20150500

        Turning to the preserved claims of error, appellant made three objections to
trial counsel’s closing argument on the merits. Appellant first objected to trial
counsel’s improper vouching for the victim. See United States v. Fletcher, 62 M.J.
175, 180 (C.A.A.F. 2005) (finding “improper vouching occurs when the trial counsel
‘places the prestige of the government behind a witness through personal assurances
of the witness’s veracity’”). After the military judge sustained the objection and
gave the panel a curative instruction, appellant did not object further or request an
additional remedy. Moreover, on appeal appellant offers no argument and we find
no basis to conclude the military judge’s remedy was deficient in any respect.

      Appellant’s second and third objections during argument were as follows:

             [TC:] That DNA is not explained by this wild theory of
             touching and touching and touching and still being there
             15 hours later; it is not explained by that. It was explained
             by a 15-year-old girl on the stand. . . . She looked you in
             the eye and she told you what happened to her. You know
             who didn’t look you in the eye? The accused.

             DC: Objection, Your Honor, improper comment on the
             accused’s testimony.

             MJ: Overruled.

             TC: The accused -- he tried, but he couldn’t look you in
             the eye when he said, “I didn’t rape that girl.” He couldn’t
             do it. He told you one true thing yesterday: the accused
             did not have consensual sex ----
             ADC: Again, Your Honor, the government cannot
             comment on any particular truthfulness of any witness’s
             testimony.

             MJ: Sustained. Counsel, state it another way please.

(emphasis added). When he testified at trial, appellant’s credibility became an issue
for the panel’s determination. Thus, trial counsel was permitted to reference
appellant’s demeanor during his trial testimony as it related to credibility. See
United States v. Cook, 48 M.J. 64, 66 (C.A.A.F. 1998) (citing Dean Wigmore’s
Evidence, in which he “dismissed as fiction the belief that the jurors can be ‘mentally
blind’ to demeanor” because “[i]f the defendant testified, the straightforward
rationale for the argument would be the impact of the defendant’s demeanor on
credibility”). When citing appellant’s demeanor to prove his lack of credibility, trial
counsel did not implicate appellant’s rights to remain silent and against self-
incrimination. See generally United States v. Clark, 69 M.J. 438, 444-45 (C.A.A.F.

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MARCUM—ARMY 20150500

2011) (clarifying the proper analysis of testimonial and nontestimonial demeanor
evidence). Therefore, the military judge did not abuse his discretion when overruling
the objection.
       In contrast, when trial counsel stated his personal conclusions about when
appellant’s testimony was true and when it was false, he overstepped the bounds of
proper argument. See Fletcher, 62 M.J. at 180 (explaining that trial counsel exceed
the limits of proper argument by “offering unsolicited personal views on the
evidence”). Accordingly, the military judge did not abuse his discretion when
sustaining only the last objection.
       In this case, we find only the two preserved errors sustained by the military
judge were instances of improper argument. Accordingly, we must assess the
potential individual and cumulative prejudice from these errors. When assessing
prejudice from improper argument, we examine the balance of three factors: “(1) the
severity of the misconduct, (2) the measures adopted to cure the misconduct, and
(3) the weight of the evidence supporting the conviction.” Id. at 184.
       First, the severity of trial counsel’s two misstatements was relatively minor
when viewed in context. The record of trial is over six hundred pages, and the trial
on the merits spanned three days. Trial counsel’s arguments on the merits spanned
about twenty pages (i.e., twelve pages in closing and eight pages in rebuttal), which
were balanced by approximately eighteen pages of argument from defense counsel.
Counsel’s arguments on the merits were followed by almost three and a half hours of
panel deliberation before announcement of the findings. While these facts do not
eliminate the need for further prejudice analysis, they provide the necessary context
to understand the relatively limited nature of trial counsel’s errors.
       Second, the military judge’s instructions sufficiently cured any potential
prejudice. Although appellant expresses doubt about the general effectiveness of
judicial instructions, he did not move the military judge to declare a mistrial nor has
he justified his requested relief on appeal. Accordingly, the military judge did not
abuse his authority when relying, absent an objection, on the curative effect of his
instructions to prevent any prejudice to appellant.
       Third, we are convinced appellant was not prejudiced by the improper
argument because the evidence supporting his conviction and sentence was strong.
Appellant sent text messages to MH commenting on her beauty. Appellant’s DNA
was found on MH’s labia. MH made a fresh complaint of the crime to her best
friend within hours of occurrence. Based on these facts, we find no prejudice to
appellant from the preserved errors, individually or in the aggregate.

                          Ineffective Assistance of Counsel

       Finally, one of the issues personally raised by appellant, pursuant to United
States v. Grostefon, is a claim of ineffective assistance of counsel. Upon review of
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the entire record of trial, we disagree. See United States v. Ginn, 47 M.J. 236, 248
(C.A.A.F. 1997) (concluding that if “the appellate filings and the record as a whole
‘compellingly demonstrate’ the improbability of those facts, the Court may discount
[appellant’s] factual assertions and decide the legal issue”). Consequently, we see
no need to order affidavits from counsel or an evidentiary hearing under United
States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967).

       It is clear from the record appellant’s counsel made reasonable, tactical
decisions regarding the presentation of evidence, examination of the government’s
witnesses, and arguments made to the panel. “We do not measure deficiency based
on the success of a trial defense counsel’s strategy, but instead examine whether
counsel made an objectively reasonable choice in strategy from the available
alternatives. Similarly, we must remain mindful that counsel have wide latitude in
making tactical decisions.” United States v. Akbar, 74 M.J. 364, 379 (C.A.A.F.
2015) (internal citations and quotation marks omitted). Our analysis of counsel’s
performance is highly deferential, and requires a “strong presumption that counsel’s
conduct falls within the wide range of professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances, the challenged action
‘might be considered sound trial strategy.’” Strickland v. Washington, 466 U.S. 668,
689 (1984) (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

       After applying our superior court’s three-pronged adaptation of the Strickland
framework to determine whether appellant has overcome the presumption of
competence and shown prejudice, we find: (1) there was a reasonable explanation
for counsel’s actions; (2) counsel’s level of advocacy did not fall “measurably below
the performance . . . [ordinarily expected] of fallible lawyers;” and (3) there was no
reasonable probability that, absent the alleged errors, the result would have been
different. See United States v. Grigoruk, 56 M.J. 304, 307 (C.A.A.F. 2002) (quoting
United States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991)). Accordingly, appellant has
not met his burden for relief.
                                   CONCLUSION

      Upon consideration of the entire record, the findings of guilty and sentence
are AFFIRMED.
                                           FOR
                                           FOR THE
                                               THE COURT:
                                                   COURT:




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



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