               U NITED S TATES AIR F ORCE
              C OURT OF C RIMINAL APPEALS
                           ________________________

                                No. ACM 39351
                           ________________________

                              UNITED STATES
                                  Appellee
                                       v.
                        Vincell D. SHADRICKS
              Senior Airman (E-4), U.S. Air Force, Appellant
                           ________________________

        Appeal from the United States Air Force Trial Judiciary
                          Decided 6 February 2019
                           ________________________

Military Judge: Brian D. Teter.
Approved sentence: Bad-conduct discharge, confinement for 3 years, for-
feiture of all pay and allowances, reduction to E-1, and a reprimand.
Sentence adjudged 14 June 2017 by GCM convened at Whiteman Air
Force Base, Missouri.
For Appellant: Major Mark J. Schwartz, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant
Colonel G. Matt Osborn, USAF; Major J. Ronald Steelman , III, USAF;
Mary Ellen Payne, Esquire.
Before JOHNSON, DENNIS, and LEWIS, Appellate Military Judges.
Senior Judge JOHNSON delivered the opinion of the court, in which
Judge DENNIS and Judge LEWIS joined.
                           ________________________

                 PUBLISHED OPINION OF THE COURT
                           ________________________

JOHNSON, Senior Judge:
   A general court-martial composed of officer and enlisted members convicted
Appellant, contrary to his pleas, of two specifications of sexual abuse of a minor
in violation of Article 120b, Uniform Code of Military Justice (UCMJ), 10
                  United States v. Shadricks, No. ACM 39351


U.S.C. § 920b. The court members sentenced Appellant to a bad-conduct dis-
charge, confinement for three years, forfeiture of all pay and allowances, re-
duction to the grade of E-1, and a reprimand. The convening authority ap-
proved the adjudged sentence.
    Appellant raises two issues on appeal: (1) whether the military judge erro-
neously instructed the court members with respect to the Government’s bur-
den of proof; and (2) whether Appellant was denied effective assistance of coun-
sel.1 We find no error and we affirm the findings and sentence.

                                 I. BACKGROUND
    In the summer of 2016 Appellant was stationed at Whiteman Air Force
Base (AFB), Missouri, as a security forces Airman. An avid fitness enthusiast,
Appellant frequently traveled to a nearby town after duty hours to train and
attend classes at a martial arts dojo.
    In late July 2016, VR—then a 14-year-old girl—began attending classes at
the same dojo, where she met Appellant. Appellant accepted a Facebook
“friend” request from VR. In late August 2016, VR suffered a minor injury dur-
ing a martial arts class and missed a week of classes. During this absence, on
31 August 2016 Appellant began a correspondence with VR by Facebook Mes-
senger, which lasted until 3 September 2016. The conversation began innocu-
ously but soon veered to sexual matters. In the course of the correspondence
Appellant sent VR a video of himself engaging in sexual intercourse with a
woman, in which Appellant’s penis is visible; a video of the woman engaging
in oral sexual intercourse with Appellant, in which Appellant’s penis is visible;
and an audio recording of “sexual sounds,” apparently of people engaged in
sexual intercourse. In addition, Appellant sent VR messages commenting on
the size of his penis, describing his past sexual activities, inquiring about VR’s
prior sexual experiences, and describing sexual activities Appellant would like
to engage in with VR. Eventually, VR told Appellant she wanted to stop these
communications because she did not want to “hurt” her boyfriend, and the cor-
respondence ended. VR told her boyfriend about these messages, which were
subsequently reported to the Air Force Office of Special Investigations.
   Appellant was charged with one specification of sexual abuse of a child by
exposing his genitalia to VR via Facebook Messenger and one specification of
sexual abuse of a child by communicating indecent language to VR via Face-
book Messenger, both with the intent to gratify his sexual desire. Appellant,
who testified at trial, did not deny sending the messages and recordings; his


1Appellant personally raises the second issue pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982).


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                 United States v. Shadricks, No. ACM 39351


defense was based on his claim that he did not know VR was under 16 years
old. The Government sought to establish Appellant knew or reasonably should
have known VR was under 16 years old by various means including, inter alia,
VR’s testimony that she told Appellant she was only 14; evidence that VR’s
true age was visible on her Facebook profile; evidence that VR’s parents drove
her to the dojo and that VR did not drive; inconsistencies in Appellant’s testi-
mony; Appellant’s admission that while he was under investigation he lied to
another member of his squadron to the effect that VR told him she was 18 years
old; and a message Appellant sent to VR commenting that she looked “very
mature. You look 16 act 17 honestly.” The court members convicted Appellant
of both specifications as charged.

                                II. DISCUSSION
A. Findings Instruction
   1. Additional Background
    Before trial, the Defense moved the court to “not instruct the members that
if the government’s evidence leaves them firmly convinced of the Accused’s
guilt then they must convict,” and to “prohibit the prosecution from making
any suggestion to the members . . . that if the evidence leaves them firmly con-
vinced of the Accused’s guilt then they must convict.” The Government opposed
the motion, and the military judge denied it.
   The military judge’s instructions to the court members on findings included
the following:
       “Proof beyond a reasonable doubt” is proof that leaves you firmly
       convinced of the accused’s guilt. There are very few things in this
       world that we know with absolute certainty, and in criminal
       cases the [law] does not require proof that overcomes every pos-
       sible doubt. If based upon your consideration of the evidence you
       are firmly convinced that the accused is guilty of the offense
       charged, you must find him guilty. If on the other hand you think
       that there is a real possibility that the accused is not guilty, you
       must give him the benefit of the doubt and find him not guilty.
(Emphasis added). The senior trial counsel specifically referred to this instruc-
tion during his argument on findings.
   2. Law
    Whether a military judge properly instructed the court members is a ques-
tion of law we review de novo. United States v. McClour, 76 M.J. 23, 25
(C.A.A.F. 2017) (citation omitted). Instructions must be evaluated “in the con-
text of the overall message conveyed to the jury.” United States v. Prather, 69


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                 United States v. Shadricks, No. ACM 39351


M.J. 338, 344 (C.A.A.F. 2011) (quoting Humanik v. Beyer, 871 F.2d 432, 441
(3d Cir. 1989)). Where “constitutional dimensions [are] at play,” instructional
errors are tested for harmlessness beyond a reasonable doubt. 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)).
   3. Analysis
    Appellant contends the military judge abused his discretion by instructing
the court members that they “must” find Appellant guilty if the evidence left
them “firmly convinced” of his guilt. Appellant acknowledges that the chal-
lenged instruction has long been a standard element in the definition of rea-
sonable doubt military judges have given members in Air Force courts-martial.
Appellant also acknowledges that the United States Court of Appeals for the
Armed Forces (CAAF) specifically held in McClour that such an instruction
was not plain error requiring reversal in a case where the defense did not object
to the instruction at trial. 76 M.J. at 26. Appellant admits he is raising the
same issue the CAAF addressed in McClour, but notes the standard of review
is different because in his case the instruction was challenged at trial. He con-
tends his convictions and sentence must be set aside. We are not persuaded.
    Our opinion in McClour noted the challenged language “is—and has been
for many years—an accepted reasonable doubt instruction used in Air Force
courts-martial” and found no error, “plain or otherwise.” United States v.
McClour, No. ACM 38704, 2016 CCA LEXIS 82, at *17–18 (A.F. Ct. Crim. App.
11 Feb. 2016) (unpub. op.) (citing United States v. Sanchez, 50 M.J. 506, 511
(A.F. Ct. Crim. App. 1999)), aff’d, 76 M.J. 23 (C.A.A.F. 2017); see also United
States v. Jones, 46 M.J. 815, 817–18 (N.M. Ct. Crim. App. 1997). Nothing about
the CAAF’s opinion in McClour suggests that court would have reached a dif-
ferent result had it applied a de novo standard of review. On the contrary, the
CAAF noted “numerous federal appellate and state supreme courts” have up-
held the language of the challenged instruction. McClour, 76 M.J. at 25 (cita-
tions omitted). In addition, the CAAF noted it had previously cited with ap-
proval very similar language in the Federal Judiciary Center’s Pattern Crimi-
nal Jury Instructions. Id. at 26 (citing United States v. Meeks, 41 M.J. 150, 157
n.2 (C.M.A. 1994)).
    Appellant’s citations to United States v. Martin Linen Supply Co., 430 U.S.
564, 572–73 (1977), and Sullivan v. Louisiana, 508 U.S. 275, 277 (1993), sug-
gest he views the challenged instruction as directing a verdict of conviction, an
argument the CAAF explicitly rejected in McClour. See 76 M.J. at 26. Simi-
larly, Appellant’s references to United States v. Hayward, 420 F.2d 142, 145
(D.C. Cir. 1969), and United States v. Bejar-Matrecios, 618 F.2d 81, 85 (9th Cir.
1980), are unavailing. Hayward dealt with an entirely different instructional
error. 420 F.2d at 143–44. The dictum Appellant cites from Bejar-Matrecios

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                 United States v. Shadricks, No. ACM 39351


expresses concern regarding an instruction similar to that in the instant case,
but includes the caveat that the instruction “probably did not divest the jury
of its power to return a verdict of acquittal and would not have been reversible
error.” 618 F.2d at 85 (citation omitted).
   Accordingly, we find no cause to deviate from our prior reasoning, and we
conclude the military judge did not abuse his discretion by providing the chal-
lenged instruction.
B. Ineffective Assistance of Counsel
   1. Law
    The Sixth Amendment guarantees an accused the right to effective assis-
tance of counsel. United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001). In
assessing the effectiveness of counsel, we apply the standard set forth in Strick-
land v. Washington, 466 U.S. 668, 687 (1984), and begin with the presumption
of competence announced in United States v. Cronic, 466 U.S. 648, 658 (1984).
See Gilley, 56 M.J. at 124 (citing United States v. Grigoruk, 52 M.J. 312, 315
(C.A.A.F. 2000)). Accordingly, we “will not second-guess the strategic or tacti-
cal decisions made at trial by defense counsel.” United States v. Mazza, 67 M.J.
470, 475 (C.A.A.F. 2009) (quoting United States v. Anderson, 55 M.J. 198, 202
(C.A.A.F. 2001)). We review allegations of ineffective assistance de novo.
United States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011) (citing Mazza, 67 M.J.
at 474).
    We utilize the following three-part test to determine whether the presump-
tion of competence has been overcome:
       1. Are appellant’s allegations true; if so, “is there a reasonable
       explanation for counsel’s actions”?
       2. If the allegations are true, did defense counsel’s level of advo-
       cacy “fall measurably below the performance . . . [ordinarily ex-
       pected] of fallible lawyers”?
       3. If defense counsel was ineffective, is there “a reasonable prob-
       ability that, absent the errors,” there would have been a differ-
       ent result?
Gooch, 69 M.J. at 362 (alteration in original) (quoting United States v. Polk, 32
M.J. 150, 153 (C.M.A. 1991)).
   2. Analysis
    Appellant has submitted a declaration and assignment of error personally
asserting his trial defense counsel were ineffective in four respects: (1) failing
to call certain witnesses; (2) failing to recommend a specific sentence to the
court members; (3) failing to confront VR’s mother when she testified during


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                 United States v. Shadricks, No. ACM 39351


sentencing proceedings; and (4) recommending Appellant elect trial by court
members rather than by the military judge alone. At the Government’s re-
quest, this court ordered affidavits from both of Appellant’s trial defense coun-
sel, Major (Maj) JM and Captain (Capt) CC. Accordingly, both counsel submit-
ted declarations that are generally consistent with one another. Their declara-
tions, in general, do not contradict Appellant’s declaration but explain the de-
fense team’s decisions at trial. We have considered whether a post-trial eviden-
tiary hearing is required to resolve any factual disputes and are convinced such
a hearing is unnecessary. See United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F.
1997); United States v. DuBay, 37 C.M.R. 411, 413 (C.M.A. 1967). We address
Appellant’s assertions in turn.
       a. Failure to Call Witnesses
   First, Appellant contends trial defense counsel failed to call two potential
witnesses, JR and AK, who also attended the dojo where Appellant and VR
met. JR was a friend of Appellant; AK was a female student approximately the
same age as VR. Appellant contends these two witnesses could have testified
that VR lied about telling Appellant how old she was and that VR acted older
than her age.
     Maj JM and Capt CC acknowledged they interviewed JR and AK before
trial and were aware both could testify they never heard VR tell Appellant her
age. Initially, the defense team considered calling both as witnesses to under-
mine VR’s pretrial statement to law enforcement that she had told Appellant
her age multiple times. However, at trial VR testified she told Appellant her
age only once at the dojo and admitted her prior statement was not true. More-
over, VR did not testify that JR or AK were present when she told Appellant
her age. The Defense elicited testimony from two other witnesses who VR tes-
tified were present that they did not recall VR telling Appellant her age. In
light of VR’s admissions in her own testimony coupled with this testimony of
other witnesses, Maj JM and Capt CC determined the potential testimony of
JR and AK became unnecessary. In addition, trial defense counsel believed
there were risks in calling these witnesses. The Prosecution might elicit from
JR indicators that might have been apparent to Appellant that VR was in fact
underage. As for AK, Maj JM explained:
       AK dressed and acted older than VR in our perception, and
       [A]ppellant knew that AK was under the age of 16. Putting AK
       on the stand posed a serious risk that the members would see
       her and use that as one more “red flag” that [A]ppellant should
       have seen in determining that VR was underage.
   Maj JM and Capt CC did not specifically respond to Appellant’s contention
that JR and AK could have provided evidence that VR acted older than her


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                   United States v. Shadricks, No. ACM 39351


age. However, given Appellant’s lack of specificity as to what the witnesses
would have testified to in this regard, we do not find his contention persuasive.
We conclude there was a reasonable explanation for trial defense counsel’s de-
cision not to call JR or AK, and their performance did not fall measurably below
that expected of defense counsel in this respect.
       b. Failure to Recommend a Specific Sentence
    Appellant contends trial defense counsel were ineffective by failing to make
a specific sentence recommendation to the court members regarding confine-
ment. In response, Maj JM and Capt CC explained that, in consultation with
their forensic psychologist expert consultant, they discussed whether to make
a specific confinement recommendation. They elected not to do so in part be-
cause they were uncertain how the court members felt about Appellant. Trial
defense counsel believed it was possible the court members believed Appellant
honestly but unreasonably thought VR was at least 16 years old, in which case
the members might be inclined to impose a light sentence. Trial defense coun-
sel reasoned that arguing for a specific term of confinement might establish a
minimum sentence in the minds of the court members that might not otherwise
exist. We find this to be a reasonable consideration. Moreover, we perceive no
“reasonable probability” that a defense recommendation for a specific term of
confinement would have resulted in a sentence more favorable to Appellant.
       c. Failure to Confront Victim’s Mother During Sentencing
    Appellant’s declaration faults trial defense counsel for failing to “confront”
VR’s mother when she testified during sentencing proceedings.2 Appellant ar-
gues VR’s mother could have been cross-examined regarding an unspecified
prior false statement the mother made during the investigation. In response,
Maj JM and Capt CC explain they did not want to appear confrontational with
VR’s family on the heels of the members’ guilty verdict. The mother’s testimony
was brief and not particularly inflammatory. Trial defense counsel could rea-
sonably conclude that nitpicking possible inconsistencies might appear to be
“bullying” the victim’s family and prove counterproductive. Moreover, Appel-
lant fails to specify any particular testimony from VR’s mother that was false
or misleading and that unfairly prejudiced him in sentencing. We find no basis



2Appellant’s assignment of error asserts “[t]rial defense counsel [ ] failed to confront
VR when she testified at during [sic] the sentencing phase of my court-martial, despite
her inconsistent testimony and lies that were exposed during the findings portion of
my court-martial.” (Emphasis added). However, although VR’s mother testified as a
Government witness and VR’s father gave an unsworn statement as VR’s designee
pursuant to Rule for Courts-Martial 1001A(e), during sentencing proceedings VR her-
self neither testified nor provided an unsworn statement.


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                 United States v. Shadricks, No. ACM 39351


to conclude cross-examination of VR’s mother would have yielded a more fa-
vorable result for Appellant.
       d. Forum Selection
    Finally, Appellant contends that he wanted to elect trial by the military
judge alone, but his counsel recommended trial by court members. Appellant
further explains that the military judge seemed to “turn towards” the Defense
over the course of the trial, and after trial the military judge told counsel for
both parties he thought the sentence was “too harsh.” Indubitably, it is an ac-
cused’s prerogative to select the forum. See Rule for Courts-Martial 903(b).
However, trial defense counsel did not overstep their bounds by making an
informed recommendation to their client. After discussing forum selection with
the defense expert consultant in forensic psychology, Maj JM and Capt CC rec-
ommended Appellant select officer and enlisted members as the best chance to
obtain an acquittal. Appellant agreed at the time, and even now acknowledges
he was “persuaded” rather than coerced. Maj JM produced a document dated
12 June 2017, the first day of trial, and signed by Appellant that stated, inter
alia, Appellant understood his options with regard to forum selection, under-
stood the decision was his alone to make, and “knowingly and voluntarily”
elected to be tried by officer and enlisted members. The fact that Appellant, in
hindsight, may have come to second-guess that decision does not render trial
defense counsel’s advice unreasonable or their performance deficient.

                               III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and sentence are AFFIRMED.


                 FOR THE COURT



                 CAROL K. JOYCE
                 Clerk of the Court




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