UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                            KERN, ALDYKIEWICZ, and MARTIN
                                Appellate Military Judges

                     UNITED STATES OF AMERICA, Appellee
                                       v.
                         Specialist TYWARD D. BATES
                         United States Army, Appellant

                                      ARMY 20120281

           Headquarters, Joint Readiness Training Center and Fort Polk
                          Patricia Lewis, Military Judge
     Colonel Keith C. Well, Staff Judge Advocate (pretrial & recommendation)
   Lieutenant Colonel James A. Barkei, Acting Staff Judge Advocate (addendum)


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Richard E. Gorini, JA; Captain Robert A. Feldmeier, JA (on
brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Katherine S. Gowel,
JA; Captain T. Campbell Warner, JA (on brief).


                                         28 June 2013

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

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

KERN, Senior Judge:

       A military judge sitting as a special court-martial convicted appellant,
consistent with his plea, of two specifications of absence without leave in violation
of Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886 (2006) [hereinafter
UCMJ]. The convening authority approved the adjudged sentence to a bad-conduct
discharge, confinement for four months, forfeiture of $994.00 pay per month for four
months, and reduction to the grade of E-1.
BATES—ARMY 20120281

         Appellant’s case is before this court for review pursuant to Article 66, UCMJ,
and he raises three assignments of error, one of which warrants discussion and
relief: 1

         THE MILITARY JUDGE ABUSED HER DISCRETION BY
         ADMITTING PROS. EX[S]. 2, 3, AND 4 BECAUSE THESE
         EXHIBITS CONSTITUTED IMPROPER REBUTTAL THROUGH
         THE USE OF UNCHARGED MISCONDUCT.

The government concedes, and we agree, that the military judge erred in admitting
and considering Prosecution Exhibits (Pros. Exs.) 2, 3, and 4 as rebuttal evidence
during the presentencing phase of appellant’s court-martial. We conclude this error
was prejudicial and requires us to set aside the sentence in this case.

                                  BACKGROUND

       During presentencing, the government presented no aggravation evidence, but
relied on the stipulation of fact that was previously admitted during the guilty-plea
providence inquiry prior to findings. The stipulation of fact included as attachments
appellant’s enlisted record brief and a general officer reprimand for driving while
intoxicated. The defense, for its sentencing case, called appellant’s former squad
leader as a witness, and appellant made an unsworn statement. 2 During appellant’s
unsworn statement, the following colloquy took place:

         [Defense Counsel (DC)]: Okay, What’s next for you? Would
         [you] like to stay in the Army?

         [Appellant]: If I could I would. I would actually like to. I would
         actually like to finish out and see if I exactly [sic] how far I can
         go within it. I joined for a reason. I would like to finish out for a
         reason.

         DC: Okay, if that’s not what happens to you as a result of this
         then ----



1
  This court previously issued an order requiring appellant’s defense counsel in this
case to respond to allegations of post-trial ineffective assistance of counsel.
However, our decision with respect to appellant’s other assignment of error renders
that issue moot.
2
  The defense also admitted documents including appellant’s leave and earning
statements, documentation of payment of a civilian fine, messages between appellant
and his wife, and appellant’s medical records.


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BATES—ARMY 20120281

         A: If that’s not what happens I’ll still get out and work in my
         trade, carpentry, and try and take that as far as I can go.

The defense rested following appellant’s unsworn statement.

       After the defense rested, the government moved to admit Pros. Exs. 2, 3, and
4 into evidence as rebuttal. Prosecution Exhibit 2 was a counseling statement for
“Possession of an illicit substance (i.e. spice).” Prosecution Exhibits 3 and 4 were
memoranda confirming appellant tested positive for marijuana on 3 January 2012
and 25 January 2012, respectively. The defense objected to admission of those
exhibits as uncharged misconduct. The government then argued that these
documents rebutted appellant’s assertion that he wanted to remain in the Army or
work as a carpenter if he was not retained in the Army, and the following colloquy
ensued:

         [DC]: [T]he government’s trying to present aggravation in
         uncharged misconduct to rebut Specialist Bates’[s] desire to stay
         in the military, and that he doesn’t want a punitive discharge. I
         don’t think Specialist Bates ever said, I have great rehabilitative
         potential for society; I’m a really a great person. And beside[s],
         even if he did, again, this is not appropriate because what this
         really is, is evidence of aggravation not related to the offense.

         [Military Judge (MJ)]: How do you tie these offenses into this
         particular charge within its Specification, Government?

         [Assistant Trial Counsel (ATC)]: Your Honor, the government is
         not entering it as evidence that’s directly related to the offense,
         but rather, Your Honor, to rebut the accused’s assertions that he’s
         prepared to operate as a carpenter on the outside. We believe that
         these specific types of ingestion would limit those abilities . . . .

         ....

         [ATC]: And, Your Honor, to rebut as well the evidence during the
         unsworn statement that the accused has a sincere desire to remain
         in the Army. We believe his conduct exhibited by these exhibits
         rebuts that assertion.

         [MJ]: So are you stating that based on the documents that you’ve
         entered with regard to his ability to Soldier on we’re saying that
         these documents rebut that premise?




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BATES—ARMY 20120281

      [ATC]: Yes, Your Honor. After having been charged in this, the
      evidence of what has occurred since then, I believe shows that the
      accused does not have the sincere desire to Soldier on as he stated,
      Your Honor. But in addition his statement that should he get out
      of the Army that he’s prepared to work as a carpenter on the
      outside and to be successful there, his rehabilitative potential that
      these would exhibit basically the level of that rehabilitative
      potential; and as far as foundational the fact that the rules have
      been relaxed, Your Honor.

      [MJ]: Defense?

      [DC]: Your Honor, again, this is not even close to something
      that’s allowed to rebut assertions that -- essentially what the
      government’s arguing is that the sincerity of anything that he says
      can be rebutted by anything that he did in the past.

      [MJ]: Well, they’re focusing on the fact that he had asked to
      remain in the military. They’re also focusing on the fact that he
      has stated that if he is not permitted to do it then he will continue
      on as a carpenter on the outside. And as you know, when you’re
      dealing [in] carpentry, you’re talking about working with
      machinery, equipment, you have to be focused, you can’t have
      things like this in your system or he could pose a danger to
      himself and possibly others. So regarding those two specific
      assertions which were made by Specialist Bates during his
      unsworn I believe that’s what the government is addressing. If I
      am not correct please so state, Trial Counsel.

      [ATC]: You are correct, Your Honor.

      [MJ]: So regarding those two specific situations how does the
      admission of Prosecution Exhibits 2, 3, and 4, how do they not
      line up with what you’re saying, and if so state the rule of
      evidence or the rule for court-martial that apply [sic] which
      prohibits these documents coming in as rebuttal evidence based on
      his statement?

      [DC]: Well, Your Honor, if the argument is that he can’t be a
      carpenter because of evidence that he’s done [inaudible] we
      stipulated that he was a carpenter during the time of his AWOL,
      so yes, there are a lot of things here that might not make sense but
      his ability to be a carpenter in the future even though we already
      stipulated that he was a carpenter during his period of absence ----



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BATES—ARMY 20120281


         [MJ]: We’re not questioning his current profession. Someone can
         go to medical school and become a doctor and have a license, but
         if it is shown that they have used drugs they’re not fit to practice
         medicine. The question is not whether he’s a carpenter, is he fit
         to practice carpentry on the outside? That’s why the government
         is submitting these documents and that’s what I am asking you to
         address, whether or not you believe based on their assertion that
         he is not able to practice as a carpenter on the outside because of
         the fear he is still using based on these documents. That’s what
         the government is asking.

         [DC]: Well, Your Honor, again, this is just an attempt to back
         door in -- this is uncharged misconduct and that’s the basis of the
         defense’s objection here. It doesn’t rebut or undermine anything
         that he said as far as his abilities to become a carpenter, but I can
         address all that in argument, Your Honor.

         [MJ]: Prosecution Exhibit 2, 3, and 4 for identification are
         admitted as Prosecution Exhibits 2, 3, and 4.

                              LAW AND DISCUSSION

       During presentencing, “[t]he prosecution may rebut matters presented by the
defense.” Rule for Courts-Martial 1001(d). Because the defense objected to the
rebuttal evidence admitted in this case, we review the military judge’s ruling to
admit Pros. Exs. 2, 3, and 4 for an abuse of discretion. United States v. Eslinger, 69
M.J. 522, 530 (Army Ct. Crim. App. 2010) (citing United States v. Clayton, 67 M.J.
283, 286 (C.A.A.F. 2009)). If the military judge abused her discretion by admitting
these exhibits, we must then test for prejudice “by assessing whether the error
substantially influenced the adjudged sentence.” Id. (citing United States v. Griggs,
61 M.J.402, 410 (C.A.A.F. 2005)); UCMJ art. 59(a).

       In this case the government concedes, and we agree, the military judge erred
when she admitted the uncharged misconduct concerning illegal drug use and
possession contained in Pros. Exs. 2, 3, and 4. We find the military judge’s logic
was clearly misplaced when she ruled that appellant’s prior drug possession and use
rebutted his expressed desire to be a carpenter. Moreover, we need only look to the
prosecution’s sentencing argument to determine the significance of the military
judge’s error:

         [A] punitive discharge is also appropriate because he’s quit; he
         has run from the Army and he’s not living up to the standards.
         Everybody knows drugs and military service don’t go together.



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BATES—ARMY 20120281

         Everybody knows that’s a quick ticket out. He’s blaming this on
         something else; he’s not owning up to it. And just to point,
         specifically, to Prosecution Exhibits 2, 3, and 4, the spice was
         February 2011, but the urinalysis was 3 January and his nanogram
         count was 386. On 25 January, about three weeks later he’s
         collected again, his nanogram count goes up; this is not the same
         use showing up again. This is additional use.

               Your Honor, he needs a reality check. So, Your Honor, the
         government respectfully requests reduction to E-1, forfeiture of
         two-thirds pay for 6 months, confinement for not less than
         6 months, and a bad-conduct discharge.

Until Pros. Exs. 2, 3, and 4 were admitted, the record was devoid of any evidence
linking appellant with illegal drugs. However, during the presentencing portion of
the court-martial, the trial counsel transformed this case from a five-and-one-half
month absence without leave case into an illegal drug case.

       Moreover, the military judge’s last-minute curative comment for the record
was ineffective. Prior to closing the court for her deliberations on a sentence, the
military judge stated:

         For the record, Prosecution Exhibits 2, 3, and 4 will not be held
         against Specialist Bates with regard to any punishment of
         sentence. It will be solely be [sic] used as the trial counsel has
         requested which is to see whether or not when we’re talking about
         the issue of rehabilitative potential, whether or not rehabilitative
         potential is there.

        Our superior court has recognized that “military judges, especially in close
cases, will give great weight to the ‘rehabilitative potential’ of an accused in trying
to decide whether to impose a punitive discharge.” United States v. Ohrt, 28 M.J.
301, 305 n.2 (C.M.A. 1989). In this case, we have both the significance placed on
the illegal drug misconduct by the trial counsel during sentencing argument and
emphasis on its relation to discharge, as well as the military judge’s own explicit
acknowledgement that she would consider it for appellant’s rehabilitative potential.
We conclude, therefore, that the improperly admitted evidence substantially
influenced the adjudged sentence, and thus, materially prejudiced appellant’s
substantial rights.

                                   CONCLUSION

      On consideration of the entire record, to include matters personally raised by
appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), the



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BATES—ARMY 20120281

findings of guilty are AFFIRMED. On the basis of the error noted, the sentence is
set aside. A rehearing may be ordered by the same or different convening authority.
In addition, appellant will receive assistance from a new defense counsel.

      Judges ALDYKIEWICZ and MARTIN concur.


                                      FOR THE
                                      FOR THE COURT:
                                              COURT:




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




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