UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                             Before
                                 MULLIGAN, FEBBO, and LEVIN 1
                                    Appellate Military Judges

                                UNITED STATES, Appellee
                                             v.
                               Captain BRADY B. SIMPKINS
                               United States Army, Appellant

                                        ARMY 20160263

                                 Headquarters, Fort Drum
                           S. Charles Neill, Military Judge (trial)
                      J. Harper Cook, Military Judge (DuBay Hearing)
                 Lieutenant Colonel John J. Merriam, Staff Judge Advocate

For Appellant: Captain Matthew D. Bernstein, JA; William E. Cassara, Esquire (on
brief).

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Captain Marc Sawyer, JA;
Captain Meredith M. Picard, JA (on brief).


                                         22 August 2018

                                   -------------------------------
                                    MEMORANDUM OPINION
                                   -------------------------------

     This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

LEVIN, Judge:

       An officer panel sitting as a general court-martial convicted appellant,
contrary to his pleas, of three specifications of abusive sexual contact and one
specification of maltreatment, in violation of Articles 120 and 93, Uniform Code of
Military Justice, 10 U.S.C. §§ 920, 893 (2012) [UCMJ]. The panel sentenced
appellant to a dismissal and confinement for 12 months. The convening authority
approved the findings and sentence as adjudged, but, at appellant’s request, waived
forfeitures of all pay and allowances for six months for the benefit of appellant’s
family.


1
    Judge Levin decided this case while on active duty.
SIMPKINS—ARMY 20160263

       Appellant’s case is before this court for review under Article 66, UCMJ.
Appellant raises two errors, neither of which merits relief. 2 First, appellant
contends that the evidence was factually and legally insufficient to prove beyond a
reasonable doubt that appellant was guilty of abusive sexual contact and
maltreatment. Second, appellant alleges that his trial defense counsel were
ineffective.

                          FACTUAL BACKGROUND

       In December 2014, appellant served as a physician’s assistant in the same unit
as Staff Sergeant (SSG) SD, who was a medic and non-commissioned officer-in-
charge of a clinic section. Appellant was SSG SD’s supervisor, and she was subject
to appellant’s orders.

       The first abusive sexual contact occurred on or about 12 February 2015.
While at the Joint Readiness and Training Center [JRTC] at Fort Polk, LA, appellant
and SSG SD were in the medical tent during evening sick call. While playing cards
with one another during some down time, appellant asked SSG SD, “[w]hat would
you do if I tried to kiss you right now?” Appellant’s question followed a series of
inappropriate comments to SSG SD over the previous days, strongly suggesting that
he found her attractive and was interested in pursuing a physical relationship with
her. Staff Sergeant SD had affirmatively rejected appellant’s verbal advancements.
That night, after appellant’s latest comment, he drew closer to SSG SD, and she
locked her arm out with her hand to push against his chest. Despite her efforts to
stop him, appellant grabbed SSG SD by both of her upper arms and leaned in to kiss
her. She ducked, and appellant instead kissed her forehead. As SSG SD pulled
away from appellant, he kissed both sides of her neck. Appellant also, as SSG SD
described it to the panel, “reached around, and he started, I guess, touching -- grope
-- I don’t know the correct term -- touching my rear end -- my butt. . . .” Staff
Sergeant SD then left the medical tent and went to a nightly First Sergeant’s
meeting.

      The next morning, SSG SD told appellant that his conduct was inappropriate,
unprofessional, and unwelcome. This admonishment did not stop appellant. That
evening, again during sick call, appellant approached SSG SD from behind, as she
was providing treatment to a soldier. While that soldier faced a direction away from
SSG SD, appellant pinched SSG SD on her buttocks. Staff Sergeant SD managed to
wait until she finished treating the soldier before responding to appellant’s
misconduct. Staff Sergeant SD responded by slapping appellant across the face and
screaming at him.




2
 Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), appellant
personally asserts a number of issues. They merit neither discussion nor relief.



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       For his part, notwithstanding appellant’s admission at trial that SSG SD had
previously rejected his advances, appellant testified that he had in fact kissed SSG
SD’s neck on 12 February 2015. Appellant explained that he believed his conduct
was consensual, even though he also acknowledged that SSG SD had tried to avoid
his kiss. According to appellant, the manner in which SSG SD had rebuffed him
somehow left him with the reasonable impression that she was not serious. The
panel, apparently familiar with the fairly well-established concept that “‘no’ means
‘no’,” found otherwise.

         Additional facts necessary to resolve the assignments of error are set forth
below.

                                LAW AND DISCUSSION

                             A. Factual and Legal Sufficiency

       Charge I and its three specifications charged appellant with three instances of
abusive sexual contact. In Specification 1, appellant was convicted for touching
SSG SD’s buttocks with his hand without her consent on 12 February 2015. In
Specification 2, appellant was convicted for touching SSG SD’s buttocks without her
consent on 13 February 2015. In Specification 3, appellant was convicted for
kissing SSG SD on her face and neck without her consent on 12 February 2015.

      Charge II and its specification charged appellant with maltreatment.
Appellant was convicted for saying to SSG SD between 9 February 2015 and 13
February 2015, “Oh you’re really pretty;” “It was kind of hot seeing you from that
angle;” “What would you do if I kissed you;” and “I can’t help thinking about how I
could bend you over the litters in here,” or words to that effect.

      The test for factual sufficiency is “whether, after weighing the evidence in the
record of trial and making allowances for not having personally observed the
witnesses” we are “convinced of the accused’s guilt beyond a reasonable
doubt.” United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).

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

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



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        Recognizing that the panel saw and heard SSG SD’s testimony, we credit her
version of events. See United States v. Crews, ARMY 20130766, 2016 CCA LEXIS
127, at *11(Army Ct. Crim. App. 29 Feb. 2016) (mem. op.) (“The deference given to
the trial court's ability to see and hear the witnesses and evidence—or
‘recogni[tion]’ as phrased in Article 66, UCMJ—reflects an appreciation that much
is lost when the testimony of live witnesses is converted into the plain text of a trial
transcript.”). Staff Sergeant SD testified that appellant, her supervisor, kissed her
face and neck and touched her on her buttocks without her consent. Staff Sergeant
SD’s testimony was supported indirectly by the testimony of the soldier seeking aid
during the 13 February 2015 sick call, who noticed that SSG SD, someone he had
previously observed as “usually straightforward,” seemed a little bit nervous while
treating him. Staff Sergeant SD further explained to the panel that she had told
appellant “no” on prior occasions.

      Appellant admitted that he kissed SSG SD’s neck, and it was clear from his
own testimony that he did so with the intent to arouse or gratify his sexual desire.
Appellant further acknowledged at trial that he had told SSG SD that she was pretty,
though he denied making the other statements. Staff Sergeant SD testified that
appellant had, in fact, made those statements. Such testimony, even if only
presented by a single witness, is sufficient to lead to a conviction.

      In Weiler v. United States, the Supreme Court noted:

             Our system of justice rests on the general assumption that
             the truth is not to be determined merely by the number of
             witnesses on each side of a controversy. In gauging the
             truth of conflicting evidence, a jury has no simple
             formulation of weights and measures upon which to rely.
             The touchstone is always credibility; the ultimate measure
             of testimonial worth is quality and not quantity. Triers of
             fact in our fact-finding tribunals are, with rare exceptions,
             free in the exercise of their honest judgment, to prefer the
             testimony of a single witness to that of many.

323 U.S.606, 608 (1945).

      Furthermore, as this court set out in United States v. Pleasant, 71 M.J. 709
(Army Ct. Crim. App. 2012), the idea that a defendant, or an accused in the military
context, testifies at his own peril is best summed up by the following:

             “Defendants in criminal trials are not obliged to testify.
             And a defendant who chooses to present a defense runs a
             substantial risk of bolstering the Government's case.”
             United States v. Bennett, 848 F.2d 1134, 1139 (11th
             Cir.1988). “Most important, a statement by a defendant, if



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             disbelieved by the jury, may be considered as substantive
             evidence of the defendant's guilt.” United States v.
             Brown, 53 F.3d 312, 314 (11th Cir.1995). “By
             ‘substantive’ we mean evidence adduced for the purpose
             of proving a fact in issue as opposed to evidence given for
             the purpose of discrediting a witness (i.e., showing that he
             is unworthy of belief), or of corroborating his testimony.”
             Id. This Circuit said that “when a defendant chooses to
             testify, he runs the risk that if disbelieved the jury might
             conclude the opposite of his testimony is true.” Id.
             (citations omitted).

Pleasant, 71 M.J. at 713 (quoting United States v. Williams, 390 F.3d 1319 (11th
Cir. 2004).

      In light of the evidence presented at trial, we are convinced beyond a
reasonable doubt of appellant’s guilt as to abusive sexual contact with and
maltreatment of SSG SD.

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

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

                         B. Ineffective Assistance of Counsel

       To establish ineffective assistance of counsel, “an appellant must demonstrate
both (1) that his counsel's performance was deficient, and (2) that this deficiency
resulted in prejudice.” United States v. Green, 68 M.J. 360, 361-62 (C.A.A.F. 2010)
(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). In order to establish
deficient performance, an appellant must establish that counsel’s “representation
amounted to incompetence under ‘prevailing professional norms.’” Harrington v.
Richter, 562 U.S. 86, 105 (2011) (quoting Strickland, 466 U.S. at 690). That is,
appellant must show “that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Green, 68 M.J. at 362 (citing Strickland, 466 U.S. at 698).




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SIMPKINS—ARMY 20160263

       Appellant’s claims of ineffectiveness, summarized here, are that trial defense
counsel, Mr. MW and Captain (CPT) DC, were ineffective by: 1) failing to prepare
for a Military Rule of Evidence [Mil. R. Evid.] 412 hearing; 2) failing to prepare
appellant to testify at the Mil. R. Evid. 412 hearing; 3) failing to interview CPT SA
and Specialist (SPC) VG; 4) failing to impeach SSG SD with text messages; 5)
failing to introduce the text message correspondence as evidence; 6) failing to call
numerous defense witnesses at trial; 7) failing to request a recess to consult with
appellant prior to cross-examining SPC VG, a government rebuttal witness; 8)
failing to prepare appellant to testify at trial; 9) failing to prepare appellant to be
cross-examined about his prior General Officer Memorandum of Reprimand
(GOMOR); and 10) failing to pursue a GOMOR as an alternative resolution to a
court-martial. 3 Responsive declarations provided by both trial defense counsel
pursuant to an order from this court address appellant’s allegations. For the reasons
that follow, appellant’s assertion that his lawyers’ performance amounted to
ineffective assistance of counsel lacks merit.




3
 We issued an order in this case directing trial defense counsel to provide affidavits
addressing aspects of the defense strategy, pretrial investigation and trial
preparation, preparation of the client for his testimony, and trial performance.
United States v. Simpkins, ARMY 20160263 (Army Ct. Crim. App. 8 Jun. 2018)
(order). In reviewing these 10 summarized claims of ineffectiveness in light of the
record, counsel’s affidavits, and appellant’s submission to this court, we conclude an
evidentiary hearing is not warranted under United States v. DuBay, 17 U.S.C.M.A.
147, 37 C.M.R. 411 (1967).

Of the 10 issues summarized above, we reject items 1 and 2 because the appellant
“allege[s] an error that would not result in relief even if any factual dispute were
resolved in appellant’s favor.” United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F.
1997). Simply, the defense prevailed on its R.C.M. 412 motion and was able to
elicit through appellant’s testimony conversations between appellant and SSG SD.
Items 3 through 6 are claims generally not disputed by counsel, but explained as
tactical decisions that we can examine under the lens of Strickland. We therefore
can “proceed to decide the legal issue on the basis of those uncontroverted facts.”
Id. As to Item 7, defense counsel’s failure to request a recess to confer with
appellant before cross-examining the government’s rebuttal witness, SPC VG, we
reject appellant’s contention on the basis that it “does not set forth specific facts but
consists of speculative or conclusory observations.” Id. Appellant asserts what he
thinks his counsel may have been able to ask, but fails to establish how such a recess
and would have changed the defense strategy or made a difference in the outcome of
the trial. As for items 8 and 9, concerning preparation of appellant for his
testimony, we find the record, as a whole, “compellingly demonstrate[s]” the
improbability of the facts alleged by appellant. Id. As for item 10, the failure to
pursue a GOMOR to resolve the matter, we find appellant’s reasoning as this being
an actual option to be speculative.

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SIMPKINS—ARMY 20160263

       With respect to the Mil. R. Evid. 412 hearing, the defense team indicated that
its goal in filing the notice was to present evidence to the panel of sexually charged
conversations between appellant and SSG SD. In fact, Mr. MW and CPT DC
successfully persuaded the military judge to allow these conversations into evidence
to support the defense theory of the case that appellant had a reasonable belief that
SSG SD consented to his actions. Regardless of whether counsel prepared for the
hearing, there was no prejudice. Because there was no prejudice, there can be no
ineffective assistance of counsel as to these allegations.

       We next address appellant’s claim that defense counsel failed to interview two
potential witnesses, CPT SA and SPC VG. In their declarations, both trial defense
counsel explained how appellant advised them that neither witness had any
knowledge of the charged offenses. Additionally, defense counsel were concerned
that the interviews themselves could lead to the revelation of damaging information
against appellant. Previously, CPT DC interviewed a potential witness identified by
appellant. That soldier, a First Sergeant, corroborated that SSG SD was upset after
she left the medical tent on 12 February 2015 to attend the First Sergeant’s meeting,
undermining appellant’s defense theory. Out of concern that additional interviews
might lead to the exposure of more harmful evidence, defense counsel opted not to
question CPT SA or SPC VG prior to trial.

       In light of this, we find trial defense counsels’ election not to pursue such
interviews to be a reasonable trial strategy. Moreover, because there is no evidence
that their testimony would have excluded the possibility that the appellant
committed the offenses alleged, we find that their testimony would not have likely
resulted in a different outcome. Therefore, we find the appellant failed to meet his
heavy burden of showing that he was denied the effective assistance of counsel.

       Next, appellant complains about his counsels’ failure to use text messages
between appellant and SSG SD at trial. As an appellate court, we will not second-
guess reasonable, albeit unsuccessful, tactical decisions by trial defense counsel.
See United States v. Sanders, 37 M.J. 116, 118–19 (C.M.A. 1993). As explained in
his affidavit, Mr. MW believed that, while the text messages may have undermined
SSG SD’s timeline to a small extent, they demonstrated that SSG SD did not want to
be around appellant. These messages gave the impression to both Mr. MW and CPT
DC that SSG SD wanted to avoid appellant following the alleged misconduct.

       Next, appellant complains that counsel failed to call numerous witnesses to
testify at trial who would have testified that they had seen nothing. 4 The defense


4
 Appellant has not provided affidavits from the witnesses of what they would have
testified to on his behalf. As this court has noted before, “when claiming ineffective
assistance of counsel for failure to present the testimony of a particular witness, an
appellant must specifically allege the precise substance of the witness’ missing

                                                                       (continued . . .)

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SIMPKINS—ARMY 20160263

theory was that certain interactions between appellant and SSG SD had occurred, but
that appellant believed them to be consensual. As Mr. MW stated in his sworn
declaration, “I explained to [appellant] that calling random soldiers to say that they
saw nothing, [sic] made the defense look foolish. If their only purpose was to say, ‘I
was not there’ and ‘I witnessed nothing,’ then they are not relevant. . . . When the
defense calls witnesses, they should be highly relevant and serve a specific purpose.
Otherwise, the defense looks like they are grasping at straws.” In light of this
explanation, appellant has failed to overcome the strong presumption that counsel’s
performance was within the wide range of reasonable professional assistance.
Without deficient performance, we cannot find ineffective assistance of counsel.

       As for the testimony of SPC VG, defense counsels’ decision not to request a
recess to consult with appellant prior to cross-examining this witness is a strategic
decision that falls well within the sole responsibility of counsel. See United States
v. Dobrava, 64 M.J. 503. 505 (Army Ct. Crim. App. 2006) (trial defense counsel are
responsible for making numerous tactical decisions). Even were we to find
somehow that counsels’ decision was deficient, appellant has not identified any
prejudice that resulted from that decision.

      Next, we find appellant’s claims that he was not prepared to testify at trial are
without merit. As a starting point, we reject appellant’s characterization that he was
extensively cross-examined about a prior GOMOR. The issue of his prior receipt of
a GOMOR never came before members. Instead, he was simply asked by the
government on cross-examination whether he lied during a previous investigation.
We also note appellant does not aver in his statement to this court that he would
have changed his decision to testify if he knew he would have been asked about a
misrepresentation in a prior investigation.

       According to the sworn declarations of both Mr. MW and CPT DC, Mr. MW
prepared appellant for his direct examination as well as cross-examination. Mr. MW
explained to appellant that he would likely be questioned about having previously
lied under oath, conduct which eventually resulted in the issuance of a GOMOR.
When advised that it was his decision whether to testify, appellant told his counsel
that he still wished to testify. Given the defense theory of the case–which we find


(. . . continued)
testimony.” United States v. Clemente, 51 M.J. 547, 550-51 (Army Ct. Crim. App.
1999) (citing United States Russell, 48 M.J. 139, 141 (C.A.A.F. 1998); United States
v. Moulton, 47 M.J. 227, 229 (C.A.A.F. 1997), cert. denied, 522 U.S. 1114 (1998)).
To support a claim for ineffective assistance of counsel, facts must be included in a
statement by someone with personal knowledge that is a sworn affidavit or a
declaration made under penalty of perjury for this court to consider the statement on
appeal. United States v. Cade, 75 M.J. 923, 929 (Army Ct. Crim. App. 2016), pet.
den., 76 M.J. 133 (C.A.A.F. 2017).




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reasonable upon review of the record as a whole–we do not find counsel’s
performance in the preparation or execution of appellant’s testimony to be deficient.

       Finally, appellant asserts without support that SSG SD preferred the issuance
of a GOMOR. To that end, appellant insists, Mr. MW and CPT DC should have
pursued a GOMOR and “attempted to resolve the issue administratively.” We find
this claim lacking in merit when viewed with the whole record. Appellant provides
no evidence that a GOMOR would have been an acceptable outcome for the
convening authority. In fact, prior to trial, appellant submitted a request to resign in
lieu of court-martial. Defense counsel sought a continuance at trial, which was
denied, because the resignation request was still pending resolution at the time of
trial. Given the resignation request and the fact the convening authority referred
charges in this case, we find appellant’s last claim to be meritless.

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

                                   CONCLUSION

      The findings of guilty and the sentence are AFFIRMED.

      Senior Judge MULLIGAN and Judge FEBBO concur.
                                                     FOR
                                                      FORTHE
                                                          THECOURT:
                                                              COURT:



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




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