                              ****CORRECTED COPY – DESTROY ALL OTHERS****



           UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                         Technical Sergeant MICHAEL L. MERRITT
                                    United States Air Force

                                               ACM 38653

                                          10 September 2015

         Sentence adjudged 18 March 2014 by GCM convened at Francis E. Warren
         Air Force Base, Wyoming. Military Judge: Grant L. Kratz (sitting alone).

         Approved Sentence: Dishonorable discharge, confinement for 25 years, and
         reduction to E-1.

         Appellate Counsel for the Appellant: Major Jeffrey A. Davis.

         Appellate Counsel for the United States:               Major Roberto Ramirez and
         Gerald R. Bruce, Esquire.

                                                  Before

                                 ALLRED, HECKER, and TELLER
                                    Appellate Military Judges

                                     OPINION OF THE COURT

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                              under AFCCA Rule of Practice and Procedure 18.4.




HECKER, Senior Judge:

        Appellant was convicted by a general court-martial comprised of a military judge
alone, consistent with his pleas, of attempted kidnapping, aggravated sexual assault of a
child, abusive sexual contact with a child, indecent liberties with a child, sexual abuse of
a child, sodomy of a child, battery of a child, kidnapping, and indecent acts with a child,
in violation of Articles 80, 120, 120b, 125, 128, 134, UCMJ, 10 U.S.C. §§ 880, 920,
920b, 925, 928, 934. The court sentenced him to a dishonorable discharge, confinement
for 50 years, forfeiture of all pay and allowances, and reduction to E-1. The convening
authority lowered the confinement to 25 years in accordance with a pretrial agreement,
disapproved the adjudged forfeitures, and approved the remainder of the sentence as
adjudged.

       On appeal, pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982),
Appellant argues (1) his reduction in rank should be set aside or reduced for the benefit of
his dependents, (2) the military judge erred in permitting the government to present
recidivism evidence in sentencing, and (3) the trial counsel made an improper sentencing
argument. Finding no error that materially prejudices a substantial right of Appellant, we
affirm the findings and sentence.

                                       Background

       The sexual offenses in this case stemmed from Appellant’s long-term sexual abuse
of a child over a ten year period, beginning when she was five. The appellant was also
convicted of battery for kissing another 10-year-old child on the mouth with the intent to
gratify his sexual desires. In 2012, he approached two young girls (ages 6 and 7) in base
housing and persuaded them to approach his car under the guise of going to see kittens.
He drove away with one child after the other hesitated and did not get in the car. The
child escaped from his car while at a stop sign.

                                Sentence Appropriateness

       Part of Appellant’s approved sentence included reduction to E-1. By operation of
law, this aspect of his sentence would take effect 14 days after his sentence was
announced. See Article 57(a), UCMJ, 10 U.S.C. § 857(a). The convening authority
granted Appellant’s request for deferral and waiver of the automatic forfeitures that also
took effect 14 days after Appellant was sentenced, and these funds were paid to
Appellant’s spouse. The convening authority, however, did not do the same for the
reduction in rank, stating he believed the interests of good order and discipline would be
best served by the reduction taking effect as scheduled. He also denied Appellant’s later
request in clemency that the reduction in rank be disapproved. Appellant now asks us to
either set aside his reduction or approve a reduction to a grade higher than E-1 so his
family can receive additional funds.

        We review sentence appropriateness de novo. United States v. Lane, 64 M.J. 1, 2
(C.A.A.F. 2006); see also United States v. Baier, 60 M.J. 382, 383–84 (C.A.A.F. 2005).
We “may affirm only such findings of guilty and the sentence or such part or amount of
the sentence, as [we find] correct in law and fact and determine[], on the basis of the
entire record, should be approved.” Article 66(c), UCMJ, 10 U.S.C. § 866(c). While we
have a great deal of discretion in determining whether a particular sentence is
appropriate, we are not authorized to engage in exercises of clemency. See United States
v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999); United States v. Healy, 26 M.J. 394, 395–96


                                             2                                    ACM 38653
(C.M.A. 1988). We assess sentence appropriateness by considering Appellant, the nature
and seriousness of the offenses, Appellant’s record of service, and all matters contained
in the record of trial. See United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982);
United States v. Bare, 63 M.J. 707, 714 (A.F. Ct. Crim. App. 2006), aff’d, 65 M.J. 35
(C.A.A.F. 2007). Applying these standards to the present case, we do not find
Appellant’s sentence inappropriately severe.

                                   Sentencing Evidence

       During sentencing, the government called a psychologist who specialized in
treating abused children. The defense did not object to his being considered an expert in
child sexual abuse and sex offender behavior, treatment, and recidivism. Because he had
not interviewed Appellant or reviewed any of his records, the expert admitted he could
not provide a “likelihood” regarding Appellant’s risk of recidivism. When asked,
however, if he had a “general opinion” about Appellant’s recidivism risk, the expert
replied,

              Given the long-term nature; given that he was focused on
              prepubescent girls; the fact that he collected erotica; the fact
              that the [sic] scripted; the fact that he did the stranger-danger
              stuff; the fact that he did different types of sexual abuse; the
              fact that it probably started, from the information I got, at a
              very early age all suggest that it’s going to be a hard process
              for him. Recidivism rate for him, in my opinion, is high.

       After the expert then answered several questions about the definition of “stranger-
danger,” the defense objected, contending that delving into the reasons behind his “high
recidivism” assessment was improper. The military judge responded,

              Well, for the record, let me just state that I interpreted the
              expert’s opinion regarding recidivism rate as a simple opinion
              and the follow-up question is not relating to—not further
              discussing that evaluation, but explaining the accused’s
              actions and giving the court a better knowledge as to how his
              actions relate to the psychology. . . . [T]he objection is
              overruled. Trial Counsel, you may proceed.

       The expert then defined what he meant by “scripting” (Appellant saying things to
the victim to enhance his sexual pleasure). The expert also characterized Appellant’s
collection of photographs of pre-teen girls as a “paraphilia” as the collection suggested he
had them for a sexual purpose. He also found unusual Appellant’s decision to pose his
victim in various positions.



                                              3                                   ACM 38653
       After the expert testified that some sex offenders’ fantasies and desires lead them
to engage in sexually-inappropriate behavior regardless of the risk to themselves, the trial
counsel asked how this affected the expert’s opinion on Appellant’s recidivism. The
military judge then sustained a defense objection. In doing so, he indicated he would
consider the testimony elicited from the expert only as an aggravating circumstance of
the offenses, and would not consider it evaluating the expert’s opinion on Appellant’s
rehabilitation potential.

       The expert then testified Appellant “may have started out as a situational offender”
(defined as someone who acts impulsively) but “now he seems to be—a lot of his
behavior seems to—seemed to have been . . . preferential” (defined as someone who is
fantasy driven and has the sexual behavior more a part of his life). The expert also stated
Appellant would find rehabilitation difficult and it would require an extended period of
time for him to learn a new pattern of behavior. After consulting the defense’s expert
consultant, the defense counsel did not ask the government expert any questions.

       On appeal, pursuant to Grostefon, Appellant argues the military judge should not
have allowed the expert to testify that Appellant had a high rate of recidivism. We
disagree.

        A military judge’s decision to admit sentencing evidence is reviewed for an abuse
of discretion. United States v. Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010). Failure to
object forfeits appellate review absent plain error. United States v. Eslinger, 70 M.J. 193,
197–98 (C.A.A.F. 2011); Rule for Courts-Martial (R.C.M.) 1001(b)(2). The appellant
did not object to this aspect of the expert’s testimony at trial. In order “[t]o prevail under
a plain error analysis, [the appellant bears the burden of showing] that: ‘(1) there was an
error; (2) it was plain or obvious; and (3) the error materially prejudiced a substantial
right.’” United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005) (quoting United States
v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)).

       The admission of this testimony was not plain error. Such recidivism evidence has
been deemed admissible in courts-martial. See, e.g., United States v. Frey, 73 M.J. 245,
250 (C.A.A.F. 2014) (holding recidivism “is a question requiring expert testimony”);
United States v. Ellis, 68 M.J. 341, 347 (C.A.A.F. 2010). The limitations of the expert’s
opinion were discussed as part of his testimony. The military judge explained the limited
and appropriate purpose for which he would consider the expert’s testimony. Under
these circumstances, we find no plain error that materially prejudiced a substantial right
of Appellant.

                                   Sentencing Argument

       The trial counsel’s sentencing argument included the following:



                                               4                                    ACM 38653
              So, sir, our recommendation here on behalf of the United
              States and, yes, this is the individual suggestion of counsel as
              you would make it clear to the members if they were there,
              but, sir, I offer this number on behalf of the United States; I
              offer it on behalf of [the victims]. Sir, I offer it on behalf of
              the base population at Ramstein Air Base. I offer it on behalf
              of everybody who’s served with the accused and thought he
              was something that he wasn’t. I offer it on behalf of everyone
              who came this week and listened to this, took time out of their
              schedules and their mission and had somebody fill in for them
              so that they could take the message back, we offer this
              recommendation not lightly, sir: 40 years confinement,
              dishonorable discharge, total forfeitures, reduction to the rank
              of E-1.

       Although he did not object at trial, Appellant now contends, pursuant to
Grostefon, that this aspect of the trial counsel’s argument was improper because it unduly
inflamed the passions or prejudices of the sentencing authority through its reference to
the entire base population and those who served with Appellant or attended the court-
martial.

         Our test for improper argument is “whether the argument was erroneous and
whether it materially prejudiced the substantial rights of the accused.” United States v.
Baer, 53 M.J. 235, 237 (C.A.A.F. 2000). During sentencing argument, “the trial counsel
is at liberty to strike hard, but not foul, blows.” United States v. Schroder, 65 M.J. 49, 58
(C.A.A.F. 2007) (quoting Baer, 53 M.J. at 237) (internal quotation marks omitted). It is
improper for trial counsel to seek unduly to inflame the passions and prejudices of the
sentencing authority. United States v. Marsh, 70 M.J. 101, 102 (C.A.A.F. 2011).
Counsel should limit their arguments to “the evidence of record, as well as all reasonable
inferences fairly derived from such evidence.” Baer, 53 M.J. at 237. The failure of trial
defense counsel to object to the argument of trial counsel constitutes forfeiture of the
issue on appeal in the absence of plain error. R.C.M. 919(c); see also United States v.
Erickson, 65 M.J. 221, 223 (C.A.A.F. 2007).

        Here, even if this aspect of the trial counsel’s argument were improper, we find no
material prejudice to any substantial right of Appellant. His case was tried before a
military judge sitting alone. Military judges are presumed to know and follow the law
absent clear evidence to the contrary. Erickson, at 224. Our superior court has also
recognized, “As part of this presumption we further presume that the military judge is
able to distinguish between proper and improper sentencing arguments.” Id. Although
the military judge did adjudge a sentence above the maximum sentence requested by the
trial counsel, we do not consider this to be evidence rebutting the presumption that the
military judge knew and followed the law or that the military judge was improperly


                                              5                                    ACM 38653
swayed by the comments to which Appellant takes exception. Furthermore, we are
confident Appellant was sentenced on the basis of the evidence alone. See United States
v. Halpin, 71 M.J. 477, 480 (C.A.A.F. 2013) (holding that reversal is appropriate only
when the trial counsel’s comments, taken as a whole, “were so damaging that we cannot
be confident that [Appellant] was sentenced on the basis of the evidence alone”).

                                       Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and
66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and
sentence are AFFIRMED.



             FOR THE COURT



             STEVEN LUCAS
             Clerk of the Court




                                             6                                   ACM 38653
