UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                             COOK, CAMPANELLA, and HAIGHT
                                 Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                  Sergeant First Class RASHEEN K. MCCULLERS
                           United States Army, Appellant

                                      ARMY 20120931

               Headquarters, U.S. Army Aviation and Missile Command
                         Stephen A. Castlen, Military Judge
                  Colonel David T. Crawford, Staff Judge Advocate


For Appellant: Captain Brian J. Sullivan, JA; Ms. Cathlene Y. Banker, Esquire (on
brief); Captain Brian J. Sullivan, JA; Ms. Cathlene Y. Banker, Esquire (on reply
brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Captain Sean Fitzgibbon, JA; Captain Timothy C. Erickson, JA (on brief).


                                       28 October 2014
                                  ---------------------------------
                                  MEMORANDUM OPINION
                                  ---------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Judge:

       A general court-martial composed of officer and enlisted members convicted
appellant, contrary to his pleas, of violating a lawful order, assault consummated by
battery (two specifications), assault consummated by battery against a child under
the age of sixteen, assault upon a person serving as civilian law enforcement, and
child endangerment in violation of Articles 92, 128, and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 892, 928, 934 (2006) [hereinafter UCMJ]. The panel
sentenced appellant to a dishonorable discharge, confinement for forty-eight months,
forfeiture of all pay and allowances, and reduction to the grade of E-1. The
MCCULLERS—ARMY 20120931

convening authority disapproved the forfeitures and approved the remainder of the
adjudged sentence. 1

       Appellant’s case is now pending review before this court pursuant to Article
66, UMCJ. Appellant raises seven assignments of error, two of which merit
discussion and one which merits relief. Appellant personally raises two issues
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), neither of which
merits discussion or relief.

                                  BACKGROUND

        In 2011, appellant and his wife, LM, had been married for eleven years. LM
had three children, two of whom were the natural children of appellant. During 2009
through 2011, appellant physically abused LM. Appellant was convicted of separate
assaultive acts including hitting LM in the face, biting LM, and choking LM.
Appellant was also convicted of assaulting his son JMM, as well as child
endangerment for assaulting LM while she was driving and causing her to drive
erratically while appellant’s daughter JM was inside the car. Further, appellant was
convicted of assaulting a police officer who responded to a report of domestic abuse
at his family home.

       After appellant assaulted LM in April 2011, appellant’s commander, Major
(MAJ) WH, issued appellant a lawful order on 5 May 2011 prohibiting him from
having any contact with LM. Appellant was charged with and found guilty of, inter
alia, failure to obey the order on divers occasions between May 2011 and December
2011.

       At his court-martial, appellant testified that on 16 June 2011, he met with his
commander after a civilian court appearance that same day. Appellant testified that
he informed his commander that civilian charges against him arising from a domestic
abuse allegation had been dropped but the court had ordered appellant to attend
marriage counseling with LM. Appellant further explained that based on this
interaction with MAJ WH that day he believed that MAJ WH rescinded the no
contact order. Specifically, appellant testified that he asked MAJ WH whether “. . .
[w]e could close out the counseling for the no contact order.” Appellant asserted
MAJ WH responded “[g]ot it. I’ll take care of it. You’re good to go.” This
conversation led appellant to believe his commander had rescinded the order.

       Major WH denied rescinding the no contact order and testified he did not
recall whether or not appellant was going to court-ordered marriage counseling.


1
 The convening authority waived automatic forfeitures for six months for the benefit
of appellant’s dependents.


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MCCULLERS—ARMY 20120931

      At trial, it was established appellant contacted his wife several times after he
received the no contact order. This was due, at least in part, to appellant’s own
testimony wherein he admitted he went with LM to marriage counseling and
regularly picked up LM and his children in his car and drove them to his house to do
laundry.

      In his instructions to the panel, the military judge did not explain the defense
of mistake of fact with respect to appellant’s alleged violation of MAJ WH’s no-
contact order, nor did defense counsel request such instruction.

                              LAW AND DISCUSSION

                       Failure to Instruct on Special Defenses

       Appellant argues on appeal the military judge erred by failing to instruct the
panel, sua sponte, on mistake of fact, a special defense reasonably raised by the
evidence. We agree.

       Allegations of mandatory instruction omissions are reviewed under a de novo
standard of review. United States v. Bean, 62 M.J. 264, 266 (C.A.A.F. 2005);
United States v. Forbes, 61 M.J. 354, 357 (C.A.A.F. 2005). When the instructional
error raises constitutional implications, the error is tested for prejudice using a
“harmless beyond a reasonable doubt” standard. United States v. Wolford, 62 M.J.
418, 420 (C.A.A.F. 2006) (citing United States v. Kreutzer, 61 M.J. 293, 298
(C.A.A.F. 2005)). “The inquiry for determining whether constitutional error is
harmless beyond a reasonable doubt is ‘whether, beyond a reasonable doubt, the
error did not contribute to the defendant's conviction or sentence.’” Kreutzer 61 M.J.
at 298 (quoting United States v. Kaiser, 58 M.J. 146, 149 (C.A.A.F. 2003)).

       A military judge is required to instruct the members on affirmative defenses
“in issue.” Rule for Courts-Martial [hereinafter R.C.M.] 920(e)(3). A matter is
considered “in issue” when “some evidence, without regard to its source or
credibility, has been admitted upon which members might rely if they choose.” See
R.C.M. 920(e) discussion. Any doubt whether an instruction should be given should
be resolved in favor of the accused. United States v. New, 50 M.J. 729, 745
(C.A.A.F. 1999) (citing United States v. McMonagle, 38 M.J. 53, 58 (C.M.A. 1993)).

       Notwithstanding the waiver provisions of R.C.M. 920(f), failure to request an
instruction required by R.C.M. 920(e)(3) or to object to its omission does not waive
the error. United States v. Davis, 53 M.J. 202, 205 (C.A.A.F. 2000). A military
judge has wide discretion in choosing the instructions to give but has a duty to
provide an accurate, complete, and intelligible statement of the law. See United
States v. Dearing, 63 M.J. 478, 483 (C.A.A.F. 2006).




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       “It is a defense to an offense that the accused held, as the result of a mistake,
an incorrect belief of the true circumstances such that, if the circumstances were as
the accused believed them to be, the accused would not be guilty of the offense.”
United States v. Barrows, 48 M.J. 783, 786-87 (1999) (citing R.C.M. 916(j)). 2

       In this case, “some” evidence was admitted at trial which members might have
relied upon, if they so chose, to establish appellant’s asserted mistaken belief that
MAJ WH’s no-contact order had been rescinded. Appellant testified he met with his
commander and discussed the court-ordered marriage counseling as it related to the
no-contact order and that their exchange led appellant to believe his commander
rescinded the order. 3 Appellant also testified be believed his commander was aware
he subsequently interacted with his wife. 4

       Accordingly, it was error not to instruct the panel on the mistake of fact
defense, depriving appellant of an instruction on a possible affirmative defense.
This instructional deprivation raises due process concerns. See Wolford, 62 M.J. at
419 (citing United States v. Jackson, 6 M.J. 116, 117 (C.M.A. 1979)). Despite

2
    R.C.M. 916(j)(1) provides:

               it is a defense to an offense that the accused held, as a
               result of ignorance or mistake, an incorrect belief of the
               true circumstances such that, if the circumstances were
               as the accused believed them, the accused would not be
               guilty of the offense. If the ignorance or mistake goes to
               an element requiring premeditation, specific intent,
               willfulness, or knowledge of a particular fact, the
               ignorance or mistake need only have existed in the mind
               of the accused. If the ignorance or mistake goes to any
               other element requiring only general intent or
               knowledge, the ignorance or mistake must have existed
               in the mind of the accused and must have been
               reasonable under all the circumstances. However, if the
               accused’s knowledge or intent is immaterial as to an
               element, then ignorance or mistake is not a defense.
3
 The crime of disobedience of an order under Article 92(2), UCMJ, contains
elements requiring specific intent or knowledge as well as elements requiring only
general intent.
4
 We recognize MAJ WH denied informing appellant he was “good to go” or
otherwise indicated the no-contact order was no longer in effect. This contradiction
of evidence was a matter that should have been properly decided by the fact finder
after proper instruction.


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MCCULLERS—ARMY 20120931

defense counsel’s failure to request the instruction, the military judge should have
sua sponte provided the instruction.

       Under the particular circumstances of this case, using a harmless beyond a
reasonable doubt standard, we find the error materially prejudicial to a substantial
right of the appellant. Accordingly, we will take appropriate action in our decretal
paragraph.

                           Ineffective Assistance of Counsel

       In his post-trial affidavit, appellant asserts he was denied effective assistance
of counsel at his presentencing hearing in that his defense counsel failed to conduct
a proper investigation and present vital military performance and rehabilitation
evidence to the panel. Specifically, appellant alleges his defense counsel did not
inform him of his right to call soldier witnesses during the sentencing phase of the
court-martial, nor did they conduct an adequate investigation to find such witnesses.
Appellant also alleges his defense counsel did not tell him he could submit a “good
soldier book.” See United States v. Gaskins, 72 M.J. 225, 228 (C.A.A.F. 2013)
(explaining the relevance of a “Good Soldier Book” as mitigation evidence during
sentencing).

       To establish ineffective assistance of counsel, appellant “bears the heavy
burden” of satisfying the two-part test that: “[1]the performance of his counsel was
deficient and [2] that he was prejudiced thereby.” United States v. Weathersby, 48
M.J. 668, 670 (Army Ct. Crim. App. 1998) (citing Strickland v. Washington, 466
U.S. 668 (1984)); United States v. Scott, 24 M.J. 186, 188 (C.M.A. 1987). Regarding
the first prong, counsel is presumed competent; thus, appellant “must rebut the
presumption by pointing out specific errors made by his defense counsel which were
unreasonable under prevailing professional norms.” Weathersby, 48 M.J. at 670
(citing United States v. Cronic, 466 U.S. 648 (1984)).

             Judicial scrutiny of counsel’s performance must be highly
             deferential. It is all too tempting for a defendant to
             second-guess counsel’s assistance after conviction or
             adverse sentence, and it is all too easy for a court,
             examining counsel’s defense after it has proved
             unsuccessful, to conclude that a particular act or omission
             of counsel was unreasonable. A fair assessment of
             attorney performance requires that every effort be made to
             eliminate the distorting effects of hindsight, to reconstruct
             the circumstances of counsel’s challenged conduct, and to
             evaluate the conduct from counsel’s perspective at the
             time. Because of the difficulties inherent in making the
             evaluation, [an appellate] court must indulge a strong



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             presumption that a defense counsel’s conduct falls within
             the wide range of reasonable professional assistance; that
             is, [an appellant] must overcome the presumption that,
             under the circumstances, the challenged action “might be
             considered sound trial strategy.” There are countless ways
             to provide effective assistance in any given case. Even the
             best criminal defense attorneys would not defend a
             particular client the same way.

Strickland, 466 U.S. at 689 (citations omitted).

       “Thus, a court deciding an ineffectiveness claim must judge the
reasonableness of counsel’s challenged conduct on the facts of the particular case,
viewed as of the time of counsel's conduct.” Id. at 690. “[S]trategic choices made
after thorough investigation of law and facts relevant to plausible options are
virtually unchallengeable; and strategic choices made after less than complete
investigation are reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.” Id. at 690-691.

       To establish prejudice, appellant must show “counsel’s errors were so serious
as to deprive [appellant] of a fair trial, a trial whose result is reliable.” Weathersby,
48 M.J. at 670. This requires appellant to show that the errors had more than “some
conceivable effect” on the proceedings, but appellant “need not show that counsel’s
deficient conduct more likely than not altered the outcome in the case.” Strickland,
466 U.S. at 693.

       In response to appellant’s allegations, defense counsel submitted affidavits
refuting appellant’s assertions, stating they attempted to solicit information from
appellant for his presentencing case, but appellant was uncooperative. They also
stated they informed appellant of his rights. Defense counsel also provided e-mails
to and from appellant substantiating their unsuccessful attempts to solicit names
from him for his presentencing case. Defense counsel also provided an e-mail from
appellant’s sister indicating appellant’s reticence to tell his family his legal troubles
until after his court-martial. While no “good soldier book” per se was admitted,
appellant’s official military personnel file was admitted into evidence. This 134-
page file included appellant’s awards, assignment and deployment history,
schooling, and evaluations.

      Because appellant and counsel filed conflicting post-trial affidavits, we look
to whether a post-trial evidentiary hearing is required. United States v. Ginn, 47
M.J. 236 (C.A.A.F. 1997). After applying the fourth Ginn principle, we find a
hearing is not required. Id. at 248. Assuming appellant’s affidavit is “factually
adequate on its face . . . the appellate filings and the record as a whole ‘compellingly




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demonstrate’ the improbability of those facts” and we may therefore “discount those
factual assertions and decide the legal issues.” Id.

       In making our decision, we find the relevant e-mail and the family affidavits
revealing in that they demonstrate both appellant’s uncommunicativeness with his
defense counsel and his mindset with regard to seeking help during his court-martial.
By all accounts except his own, appellant refused to cooperate. Additionally, the
military judge reviewed appellant’s sentencing rights with him and appellant
acknowledged he understood the rights of which he now complains he was denied.

       Accordingly, the record as a whole and the appellate filings compellingly
demonstrate the improbability of appellant’s claim of ineffective assistance of
counsel. Id. at 248. This court discounts appellant’s factual assertions and finds
appellant has failed to demonstrate counsel’s performance was deficient. We,
therefore, find no validity in appellant’s ineffective assistance claim.

                                   CONCLUSION

      The findings of guilty to Charge I and its Specification are set aside and that
charge and its specification are dismissed.

      The remaining findings of guilty are AFFIRMED.

      We are able to reassess the sentence on the basis of the errors noted,
and do so after conducting a thorough analysis of the totality of circumstances
presented by appellant’s case and in accordance with the principles articulated by
our superior court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F.
2013) and United States v. Sales, 22 M.J. 305 (C.M.A. 1986).

       In evaluating the Winckelmann factors, we find no dramatic change in the
penalty landscape or exposure which might cause us pause in reassessing appellant’s
sentence. Second, although appellant was sentenced by members, here, this factor
carries less weight because the remaining offenses “do not address service custom,
service-discrediting conduct or conduct unbecoming.” Winckelmann, 73 M.J. at 16.
Third, the gravamen of appellant’s misconduct, serious and repeated assaults
involving his child, wife, and a law enforcement officer, remains. Finally, based on
our experience, we are familiar with the remaining offenses so that we may reliably
determine what sentence would have been imposed at trial.

       After reassessing the sentence and the entire record, the sentence is
AFFIRMED. We find this reassessed sentence is not only purged of any error
but is also appropriate. All rights, privileges, and property, of which
appellant has been deprived by virtue of that portion of the findings set aside
by our decision, are ordered restored.



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    Senior Judge COOK and Judge HAIGHT concur.


                               FOR
                                FORTHE
                                    THECOURT:
                                        COURT:




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




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