              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                 Before
              F.D. MITCHELL, J.A. FISCHER, M.K. JAMISON
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                    CHRISTOPHER T. GRIFFIN
      INTELLIGENCE SPECIALIST SECOND CLASS (E-5), U.S. NAVY

                           NMCCA 201300227
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 30 January 2013.
Military Judge: CDR John A. Maksym, JAGC, USN.
Convening Authority: Commander, U.S. Naval Forces Japan,
Yokosuka, Japan.
Staff Judge Advocate's Recommendation: CDR T.D. Stone,
JAGC, USN.
For Appellant: LT Jessica L. Fickey, JAGC, USN.
For Appellee: LCDR Keith B. Lofland, JAGC, USN; LT Ann E.
Dingle, JAGC, USN.

                              20 May 2014

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                     OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     A military judge, sitting as a general court-martial,
convicted the appellant, contrary to his pleas, of two
specifications of abusive sexual contact in violation of Article
120(h), Uniform Code of Military Justice, 10 U.S.C. § 920(h).
The military judge sentenced the appellant to reduction to pay
grade E-1, a $50,000.00 fine, confinement for four years, total
forfeiture of all pay and allowances, and a dishonorable
discharge. With the exception of the $50,000.00 fine, the
convening authority (CA) approved the sentence as adjudged.

     The appellant now alleges four assignments of error: (1)
that the Staff Judge Advocate (SJA) violated RULE FOR COURTS-MARTIAL
1106, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) by not
advising the CA of the legal errors raised by the defense in
post-trial clemency submissions; (2) that his convictions for
two specifications of abusive sexual contact are legally and
factually insufficient; (3) that his trial defense counsel was
ineffective; and, (4) that his sentence of four years’
confinement and a dishonorable discharge is inappropriately
severe. 1

     After careful examination of the record of trial and the
pleadings of the parties, we are satisfied that the findings and
the sentence are correct in law and fact and that no error
materially prejudicial to the substantial rights of the
appellant occurred. Arts. 59(a) and 66(c), UCMJ.

                              Factual Summary

     On 8 April 2012, a group of Sailors from the USS GEORGE
WASHINGTON (CVN 73) went out for drinks in an area of bars and
night clubs in Yokosuka, Japan called the Honch. Among the
Sailors in this group was the appellant and the victim,
Intelligence Specialist Third Class (IS3) AS, who were co-
workers and friendly acquaintances. The appellant knew IS3 AS
was a lesbian, who was open regarding her sexual preference and
in a committed relationship with another woman. That night the
group went to a number of bars where they consumed alcoholic
beverages. At some point that night a subset of this group,
which included the appellant, IS3 AS, and Cryptologic Technician
Technical Seaman (CTTSN) AN, went to a restaurant to get
something to eat. CTTSN AN testified that while at the
restaurant the appellant made comments of a sexually explicit
nature and stated that he was afraid he would cheat on his wife
as she was back in the United States. Record at 339-42. IS3 AS
and CTTSN AN told the appellant that they would not let this
happen and awkwardly laughed off the appellant’s comments. Id.
at 339. At no point during the night was there any flirting or
romantic innuendos between the appellant and IS3 AS. Id. at 99-
100, 342, 530.


1
  Assignments of error two through four are submitted pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).


                                      2
     At some point during the night IS3 AS, the appellant, CTTSN
AN, and Hull Technician Second Class (HT2) LN left the Honch to
go to HT2 LN’s off-base residence. IS3 AS had been staying at
HT2 LN’s house in a spare bedroom for the past couple of months.
Once at the house, the appellant was provided a pillow and
blanket so he could sleep on the couch. IS3 AS indicated that
she put on a movie to watch. IS3 AS testified that, as she sat
on the couch, the appellant again made sexually explicit
overtures to her, which she rejected. Id. at 61-62. The
appellant denied ever making such sexual suggestions. Id. at
475.

     IS3 AS left the appellant on the couch and went up to her
bedroom to sleep. The appellant fell asleep on the couch but
was awakened a short while later when a noisy group of Sailors
entered HT2 LN’s house. The appellant testified that he then
went upstairs and knocked on IS3 AS’s door and, upon obtaining
permission, went in to go to sleep. After failing to find a
space on the floor to sleep, he testified that he asked IS3 AS
if he could sleep in the bed with her and that she gave him
permission to do so. The appellant asserted that he fell asleep
in bed with IS3 AS and was awakened when she rolled over and her
body pressed up against his. Id. at 483-84. He testified that
he then started kissing IS3 AS on her body and, after he kissed
her stomach, she “slid her shorts off and slid her shorts down”
and he began to perform oral sex on her. Id. at 486. After 10
to 15 minutes of performing oral sex on IS3 AS, the appellant
testified that he moved to begin sexual intercourse with her but
she told him to stop. Id. at 486-89. The appellant testified
he stopped and rolled off IS3 AS onto the bed. Id. at 489.

     IS3 AS testified that after she left the appellant
downstairs, the next thing she remembers is being awakened by
the appellant performing oral sex on her. She additionally
asserts that she never invited the appellant up into her room or
consented to any type of sexual activity with him. Additional
facts necessary for the resolution of a particular AOE are
provided below.

                  Legal and Factual Sufficiency

     We begin with the appellant’s second assignment of error in
which he alleges that the findings of guilty of abusive sexual
contact are legally and factually insufficient. The appellant
does not allege there was insufficient evidence for any one
element, but rather argues that the primary evidence against
him, the testimony of IS3 AS, is not credible. The appellant,

                                3
in his brief, has presented a number of discrepancies and/or
issues in IS3 AS’s testimony and actions after the incident
which, according to the appellant, undermine her credibility and
render the evidence factually insufficient to sustain his
convictions.

The Law

     The test for legal sufficiency is whether, considering the
evidence in the light most favorable to the Government, any
rational trier of fact could have found the elements of the
offense beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 318-19 (1979); United States v. Turner, 25 M.J. 324,
325 (C.M.A. 1987); United States v. Reed, 51 M.J. 559, 561-62
(N.M.Crim.Ct.App. 1999), aff'd, 54 M.J. 37 (C.A.A.F. 2000); see
also Art. 66(c), UCMJ. The test for factual sufficiency is
whether, after weighing all the evidence in the record of trial
and recognizing that we did not see or hear the witnesses, this
court is convinced of the appellant's guilt beyond a reasonable
doubt. Turner, 25 M.J. at 325; see also Art. 66(c), UCMJ.
Proof beyond a reasonable doubt does not mean that the evidence
must be free of conflict. United States. v. Goode, 54 M.J. 836,
841 (N.M.Crim.Ct.App 2001). The fact finders may believe one
part of a witness’s testimony and disbelieve another. Id. When
weighing the credibility of a witness, this court, like a fact-
finder at trial, examines whether discrepancies in witness
testimony resulted from an innocent mistake such as a lapse of
memory or a deliberate lie. Id. at 844.

Analysis

     There are two elements to the offense of abusive sexual
contact upon a person who is substantially incapacitated: (1)
that the accused engaged in sexual contact 2 with another person
or caused sexual contact with or by another person; and, (2)
that the other person was substantially incapacitated. Manual
for Courts-Martial, United States (2012 ed.), App. 28, at
¶ 45b(8)(c).

     Evidence adduced at trial indicated that the appellant made
several sexual comments in the presence of IS3 AS throughout the
evening and there was no evidence that she was receptive.

2
  Sexual contact is defined as the intentional touching, either directly or
through the clothing, of the genitalia, anus, groin, breast, inner thigh, or
buttocks of any person with an intent to abuse, humiliate, or degrade any
person or to arouse or gratify the sexual desire of any person. See Art.
120(t)(2), UCMJ.
                                      4
Additionally, the evidence showed that the appellant observed
IS3 AS consume multiple alcoholic beverages throughout the
night; one of the Sailors in this liberty group described the
victim as intoxicated to the point that she was “kind of
slurring her words, kind of stumbling around.” Record at 346.

     While the appellant’s account of events differs greatly
from IS3 AS’s, the other witnesses do not corroborate his
version of events. For example, after the appellant was
awakened by the loud Sailors that entered HT2 LN’s house, the
appellant indicated that he went upstairs on his own accord,
knocked on HT2 LN’s bedroom door and asked him the location of
the bathroom. Id. at 477. HT2 LN testified that he did not
wake up after he went into his bedroom until the following
morning. Id. at 291. Also, CTTSN AN indicated it was at her
suggestion that the appellant went to IS3 AS’s room to sleep on
the floor to escape the group of noisy Sailors. Id. at 350.
Finally, IS3 AS indicated that she did not give the appellant
permission to enter her room after going to bed and did not
consent to any sexual activity with him.

     While the appellant argues that IS3 AS’s account of the
sexual assault varied, the most consistent aspect of her
recollection of the events reflect that after a night of heavy
drinking, she retired to her bedroom and was later abruptly
awakened when the appellant initiated nonconsensual sexual
contact with her. The appellant also suggests that because the
victim’s then-girlfriend pressured her into making an
unrestricted report, that somehow suggests that the victim
fabricated the event and should not be believed. We disagree.

     After thoroughly reviewing of all of the evidence, we find
that the military judge had a factual basis to find the
appellant guilty beyond a reasonable doubt of abusive sexual
contact. Taking into consideration that we did not see the
witnesses personally, we find the evidence both legally and
factually sufficient to find the appellant guilty beyond a
reasonable doubt of the charge and specifications of which he
was convicted at trial. We find this assignment of error to be
without merit.

            Failure to Comment on Legal Error in SJAR

     Closely related to the previous assignment of error, the
appellant asserts that it was prejudicial error for the SJA not
to submit an addendum to the SJAR in response to the defense’s
clemency submission that challenged the findings of guilty,

                                5
contending they were legally and factually insufficient. As a
remedy, the appellant requests that this case be remanded to the
CA for new post-trial processing.

The Law

     R.C.M. 1106(d)(4) requires that “‘the staff judge advocate
. . . state’ in his recommendation ‘whether, in’ his ‘opinion,
corrective action on the findings or sentence should be taken
when an allegation of legal error is raised in matters submitted
under R.C.M. 1105 or when otherwise deemed appropriate by the
staff judge advocate.’” United States v. Hill, 27 M.J. 293, 295
(C.M.A. 1988). An analysis or rationale for an SJA’s statements
concerning legal error is not required and a response may merely
consist of either a statement of agreement or disagreement with
any legal error raised by the appellant. R.C.M. 1106(d)(4).
The Manual contemplates that errors may be raised by the accused
for consideration by a CA, even though the recommendation of the
SJA has already been served on the accused. Hill, 27 M.J. at
295. When the defense raises an allegation of legal error in a
clemency submission, the SJA must advise the CA whether
corrective action is required. R.C.M. 1106(d)(4); see also
Hill, 27 M.J. at 296.

Analysis

     In most instances, failure of the SJA to prepare a
recommendation with the contents required by R.C.M. 1106(d)(4)
will be prejudicial and will require remand of the record for
preparation of a suitable recommendation for the CA. Hill, 27
M.J. at 296. However, if the Court of Criminal Appeals is
convinced that under the particular circumstances, a properly
prepared recommendation would have no effect on the CA – the
burden in this regard being on the Government – remand to the CA
is unnecessary. 3 Id. Accordingly, if a defense allegation of
legal error is presented after trial and clearly has no merit,
the accused is not entitled to relief merely because of failure
by the SJA to state specifically in his recommendation that the
assigned error lacked merit or to submit an “addendum”
addressing the error. Id.

     Because we found in the previous assignment of error that
the evidence was legally and factually sufficient to support the

3
   We note that in the general court-martial promulgating order, the CA
specifically indicates that he considered the errors raised by the defense in
the clemency petition and references an in-person meeting he had with the
defense counsel on 26 April 2013.
                                      6
findings of guilty beyond a reasonable doubt, this issue is
without merit and there was no prejudice to the appellant by the
SJA’s failure to submit an addendum or to otherwise comment on
the allegations of error. An addendum would not have had an
effect on the CA in this case. Because the appellant was not
prejudiced, returning this court-martial to the CA is not
necessary.

                Ineffective Assistance of Counsel

     The appellant also contends that he was denied effective
assistance of counsel. The court “looks at the questions of
deficient performance and prejudice de novo.” United States v.
Gutierrez, 66 M.J. 329, 330-31 (C.A.A.F. 2008) (citations
omitted). A military accused is entitled under the Constitution
and Article 27(b), UCMJ, to the effective assistance of counsel.
United States v. Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007).

     We analyze the appellant’s claim of ineffective assistance
of counsel under the test outlined by the Supreme Court in
Strickland v. Washington, 466 U.S. 668 (1984). To prevail on a
claim of 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, 466 U.S. at 687) (additional citation
omitted).

     Based on the appellant’s post-trial submissions and our
careful analysis of the record, we find the appellant's
ineffective assistance of counsel assertions constitute nothing
more than bare allegations and speculation concerning his
military defense counsel’s claimed errors and omissions. The
record supports that the trial defense counsel rendered adequate
assistance and exercised reasonable professional judgment in the
pretrial, trial, sentencing, and post-trial representation he
provided to the appellant. In light of the evidence in the
record and the appellate filings, we conclude that the appellant
has demonstrated neither deficient performance nor prejudice and
decline to grant relief.

                        Sentence Severity

     In his final assignment of error, the appellant contends
that his sentence to four years’ confinement and a dishonorable
discharge is inappropriately severe. The appellant requests
that this court “suspend his punitive discharge and only approve

                                7
as much of his sentence as confinement for time served.”
Appellant’s Brief of 10 Sep 2013 at 19.

     “Sentence appropriateness involves the judicial function of
assuring that justice is done and that the accused gets the
punishment he deserves.” Unites States v. Healy, 26 M.J. 394,
395 (C.M.A. 1988). This requires “‘individualized
consideration’ of the particular accused ‘on the basis of the
nature and seriousness of the offense and character of the
offender.’” United States v. Snelling, 14 M.J. 267, 268 (C.M.A.
1982) (quoting United States v. Mamaluy, 27 C.M.R. 176, 180-81
(C.M.A. 1959)).

     After reviewing the entire record, we find that the
sentence is appropriate for this offender and his offenses.
United States v. Baier, 60 M.J. 382, 384-85 (C.A.A.F. 2005);
Healy, 26 M.J. at 395-96; Snelling, 14 M.J. at 268.

                           Conclusion

     The finding and the sentence as approved by the CA are
affirmed.


                                For the Court




                                R.H. TROIDL
                                Clerk of Court




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