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

                           UNITED STATES, Appellee
                                         v.
                     Sergeant First Class BILLY J. SMITH JR.
                          United States Army, Appellant

                                     ARMY 20160049

                      Headquarters, United States Army South
                          Jeffery R. Nance, Military Judge
              Lieutenant Colonel James S. Tripp, Staff Judge Advocate


For Appellant: Major Patrick J. Scudieri, JA; Catherine M. Cherkasky, Esquire (on
brief); Major Julie L. Borchers, JA; Catherine M. Cherkasky, Esquire (on reply
brief).

For Appellee: Colonel Tania M. Martin, JA; Major Cormac M. Smith, JA; Captain
Natanyah Ganz, JA (on brief).


                                    28 September 2018

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

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

MULLIGAN, Senior Judge:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of attempted forcible sodomy, one
specification of indecent liberty with a child, one specification of aggravated sexual
abuse of a child, two specifications of sexual abuse of a child, and eight
specifications of forcible sodomy in violation of Articles 80, 120, 120b, and 125
Uniform Code of Military Justice, 10 U.S.C. §§ 880, 920, 920b, 925 (2012) [UCMJ].
The military judge sentenced appellant to a dishonorable discharge and confinement
for twenty-five years, but granted appellant six months and two days’ credit against
confinement. The convening authority approved the sentence as adjudged but
granted appellant an additional five days’ confinement credit.
SMITH—ARMY 20160049

       This case comes before us for review under Article 66, UCMJ. On appeal,
appellant asserts the military judge rendered several specifications impermissibly
ambiguous by striking the word “divers” and that his counsel 1 were ineffective in
investigating and presenting a sentencing case. Both issues merit discussion but no
relief. The matters personally raised by appellant pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), lack merit.

                                 BACKGROUND

                                  A. The Offenses

      Appellant married JS on New Year’s Eve, 1989. He was just shy of his
seventeenth birthday and had been raised in the child foster care system. His wife
was thirty years old and had two minor children from a previous marriage. Her
daughter, CW, was eight years old, and her son, DW, was eleven years old.

      Both CW and DW testified at the court-martial to being sexually abused by
appellant repeatedly after he moved in with them. CW reported the sexual abuse to a
school counselor in 1991. Although CW later recanted the claim, she went to live
with her biological father. DW testified that both before and after his sister CW
moved, he also was a target of appellant’s sexual abuse. That abuse continued until
1997 when DW graduated from High School and enlisted in the Army. Appellant,
twenty-four years old at the time, also enlisted in the Army in 1997.

       In 1999, appellant was stationed at Fort Hood, Texas. He and his wife took
managerial custody of a young boy, JAC, who was thirteen years old. He had an
older brother, JOC, who was sixteen years old. JOC was only with appellant and his
wife for several months before appellant, who by then had moved to Arizona, asked
that JOC be removed from the home, leaving JAC alone. JAC testified to sexual
abuse that began even before appellant received formal custody and included both
oral and anal sodomy. The abuse lasted until after JAC graduated from high school
and moved out.

      In 2006, the state of Texas charged appellant with sexual offenses involving
DW. The case went to trial in 2008. JAC testified as a character witness for
appellant. He did not reveal that he had been the victim of any sexual abuse by
appellant. The jury was unable to reach a verdict and the trial resulted in a hung
jury. The case was never further pursued.

     In 2010, appellant was stationed at Fort Huachuca, Arizona. Between
November 2009 and May 2010, an eleven-year-old boy who was a ward of the state,

1
 Appellant was represented by three military defense counsel, Captain (CPT) AF,
CPT SL, and CPT JB. Each were detailed as appellant’s U.S. Army Trial Defense
Service (TDS) military counsel.


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SMITH—ARMY 20160049

SS, began to visit appellant and his wife. SS was a foster child and had been cycled
through more than fifteen different foster homes. In May 2010, appellant and his
wife adopted a newborn infant, DS. In July 2010 appellant and his wife took SS to
live with them. They applied to the State of Arizona to adopt SS and their petition
of adoption was granted in July 2011. After appellant and his wife moved SS into
their home, appellant orally and anally sodomized SS and forced SS to orally and
anally sodomize him. In summer 2011, appellant and SS moved to Warner Robins
Air Force Base, Georgia. The rest of appellant’s family stayed behind in Arizona.
In Georgia, appellant orally and anally sodomized SS and also forced SS to orally
and anally sodomize him. Appellant purchased gifts for SS in exchange for sexual
gratification. Between 22-24 February 2012, appellant and SS took a trip to Shaw
Air Force Base, South Carolina where appellant anally sodomized SS and forced SS
to orally sodomize him.

      In 2013, appellant and his family moved to San Antonio, Texas. While there,
appellant forced SS to masturbate his penis, and also forced SS to watch as appellant
masturbated his own penis until ejaculation. Appellant also forced SS to orally
sodomize him.

      In addition to SS and DS, appellant and his wife adopted a two-year-old girl,
AS, in August of 2013.

       In April 2014, appellant and SS, now fifteen years old, became involved in a
physical altercation. SS ran to his next-door neighbor, ES, for protection and
reported the abuse to her. ES described SS as distraught and the police were called.
Appellant’s wife also called the police and alleged that SS was sexually abusing his
younger sister, AS, and had threatened her when confronted with the allegation.
Appellant’s wife also claimed appellant had acted in defense of AS. SS was
subsequently arrested and taken into a juvenile detention facility where he stayed for
eighteen months. At the juvenile detention facility, SS reported the abuse again, and
an investigation into the appellant followed.

       The record shows a defense team who believed they could succeed by
contrasting appellant, a soldier with almost twenty years of service, against SS, a
troubled and angry foster child who had cycled through many households during his
childhood. The defense theory at trial focused on discrediting SS’s testimony.
Appellant highlighted the fact that SS had stayed in multiple foster homes during his
time in the foster system. Character witnesses testified about SS’s behavioral
issues, and appellant maintained that SS fabricated the allegations to cover up his
own sexual abuse of his younger sister, AS. Appellant denied all allegations of
abuse and relied on testimony from his wife, JS, who lived with him for almost all
periods of alleged abuse. JS testified that appellant was a hardworking, loving
father who adopted foster children out of generosity. After a contested trial before a
military judge, appellant was ultimately convicted of several charges involving SS.



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SMITH—ARMY 20160049

      During findings, the military judge excepted the words “on divers occasions”
from Charge III, Specifications 3, 10, 11, and 15, but did not specify on what
occasions the offenses had occurred.

                                    B. Sentencing

       During sentencing, defense counsel admitted an extensive “Good Soldier
Book” 2 and an estimated retirement benefits worksheet. After admitting the
documents, defense counsel presented five character witnesses who emphasized
appellant’s tough upbringing and good character. 3 Defense counsel did not offer any
military witnesses during sentencing. Although the defense team knew about
appellant’s neck surgeries and medical conditions, they chose not to present that to
the military judge. Appellant made an unsworn statement, in which he spoke about
his difficult upbringing and apologized to SS and his family. Defense counsel asked
the military judge for mercy with sentencing and emphasized his difficult childhood
and potential for rehabilitation in the future.

                                  LAW AND ANALYSIS

    A. Exception of “divers” from Specifications 3, 10, 11, and 15 of Charge III

      Appellant alleges that this court cannot conduct a factual review of
Specifications 3, 10, 11, and 15 of Charge III because they were rendered
impermissibly ambiguous after the military judge excepted from the specifications
the words “on divers occasions.”

       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 appellant’s guilt beyond a reasonable doubt.
United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). We review the ambiguity
of a verdict and whether a factual sufficiency review is precluded de novo. United



2
 The book contained appellant’s enlisted record brief, noncommissioned officer
evaluations, awards (including a bronze star), evaluations from different schools,
photos from deployments, letters detailing his service, and several newspaper
articles discussing appellant’s bronze star and selection to the Army shooting team.
3
  Defense called two of appellant’s brothers to speak about appellant’s childhood,
abusive parents, and time in the foster system. VS, a caretaker from appellant’s time
in the foster system, also discussed his difficult childhood. Appellant’s close friend,
LS, discussed his rehabilitative potential. Appellant’s wife testified that she would
provide support for appellant after his incarceration and discussed the consequences
of a long period of confinement for their family.

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SMITH—ARMY 20160049

States v. Ross, 68 M.J. 415, 417 (C.A.A.F. 2010) (citing United States v. Rodriguez,
66 M.J. 201, 203 (C.A.A.F. 2008)).
       “If there is no indication on the record which of the alleged incidents forms
the basis of the conviction, then the findings of guilt are ambiguous and the Court of
Criminal Appeals cannot perform a factual sufficiency review.” United States v.
Walters, 58 M.J. 391, 396-97 (C.A.A.F. 2003). However, when a military judge
excepts “on divers occasions,” this court “may review the record to determine if
there was only a single incident that met ‘all the details of the specification’ for
which an appellant was convicted.” United States v. Trew, 68 M.J. 364, 368
(C.A.A.F. 2010) (quoting United States v. Wilson, 67 M.J. 423, 428 (C.A.A.F.
2009)).
                           1. Specification 3 of Charge III

       Appellant was charged in Specification 3 with committing “on divers
occasions between on or about 22 July 2010 and on or about 22 July 2011” oral
sodomy on SS at or near Fort Huachuca, Arizona. The evidence in the record
contains only a single instance of appellant committing oral sodomy at or near Fort
Huachuca in summer 2010. During trial, trial counsel asked SS the following
question: “Then you said, at some point [appellant] put his penis in your mouth.
What states did that happen?” SS responded “Arizona.” Trial counsel then asked:
“And how many times did that happen in Arizona?” SS responded “Once.” Because
there is only one instance of alleged conduct, there is no Walters problem present in
this specification. Although the military judge did not specify the exact date the
alleged conduct occurred when he changed the specification, the specification
nevertheless remains unambiguous when reviewing the record because the conduct is
only mentioned once. We can review the factual sufficiency of appellant’s
conviction for this specification without fear of ambiguity.

                      2. Specifications 10 and 11 of Charge III

       Similarly, Specifications 10 and 11 are not impermissibly ambiguous because
SS describes only one instance when the alleged conduct happened for each
specification. During a trip from Warner Robins Air Force Base, Georgia to Shaw
Air Force Base, South Carolina between 22 and 24 February 2012, appellant orally
and anally sodomized SS once in their hotel room. Because there is no risk of
ambiguity in the findings, was can review appellant’s convictions of these
specifications for factual sufficiency.




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SMITH—ARMY 20160049

                           3. Specification 15 of Charge III

       In finding the appellant guilty of Specification 15 of Charge III, the military
judge struck the words “divers occasions” but added the words “attempt” and
“attempt to” to a charge of anal sodomy. The military judge thereby convicted
appellant of the lesser-included offense of attempted forcible sodomy on one
occasion. The evidence in the record is not impermissibly ambiguous as to this
specification because SS described only one instance of attempted anal sodomy that
occurred at Warner Robins Air Force Base between 2011 and 2013. After SS’s
description, trial counsel asked, “After that day, did [appellant] ever force you to put
your penis in his anus again?” SS confirmed that the incident he described was the
only time that anal sodomy was attempted at Warner Robins Air Force Base. Given
the evidence, there is no Walters problem with this specification, and we can review
appellant’s conviction for this specification for factual sufficiency without any
double jeopardy risk for appellant.

       Having resolved appellant’s Walters argument, we find that Specifications 3,
10, 11, and 15 are factually sufficient in that we are convinced of appellant’s guilt
beyond a reasonable doubt.

                         B. Ineffective Assistance of Counsel

       Appellant asserts that defense counsel were ineffective during the
presentencing phase of trial. First, appellant claims his defense counsel failed to
adequately investigate and present appellant’s medical history, which included a
skull fracture as an infant and a traumatic brain injury (TBI) diagnosis while on
active duty. Second, appellant avers his defense counsel failed to put on a
meaningful sentencing case that highlighted appellant’s nearly twenty-year military
career and accomplishments.

       Military accused have a constitutional and statutory right to the effective
assistance of counsel at trial. United States v. Bolkan, 55 M.J. 425, 427 (C.A.A.F.
2001) (citing U.S. Const. amend. VI; UCMJ art. 27, 10 USC § 827; United States v.
MacCulloch, 40 M.J. 236 (C.M.A. 1994)). This constitutional right applies “not
only to the merits phase of trial, but to each critical stage in a criminal proceeding
where substantial rights of a criminal accused may be affected,” which includes the
sentencing phase of a military court-martial. United States v. Dobrava, 64 M.J. 503,
505 (Army Ct. Crim. App. 2006) (citing United States v. Alves, 53 M.J. 286, 289
(C.A.A.F. 2000)).

      We review ineffective assistance of counsel claims de novo. United States v.
Akbar, 74 M.J. 364, 379 (C.A.A.F. 2015); United States v. Datavs, 71 M.J. 420, 424


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SMITH—ARMY 20160049

(C.A.A.F. 2012). The test for ineffective assistance of counsel requires an appellant
to prove both (1) that his counsel’s performance was deficient, and (2) that the
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)).

       Under the first Strickland prong, appellant must show “counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant
by the Sixth Amendment.” 466 U.S. at 687. To decide this issue, courts “must
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Id. at 689. The presumption of competence is
rebutted by “a showing of specific errors made by defense counsel” that were
“unreasonable under prevailing professional norms.” United States v. McConnell, 55
M.J. 479, 482 (C.A.A.F. 2001) (citations omitted).
       For Strickland’s second prong for prejudice, we require a showing “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.” Strickland, 466 U.S. at 694. To
undermine an appellate court’s confidence in the outcome requires a “substantial,”
not just “conceivable,” likelihood of a different result. Harrington v. Richter, 562
U.S. 86, 112 (2011) (citations omitted). “An appellant must establish a factual
foundation for a claim of ineffectiveness; second-guessing, sweeping
generalizations, and hindsight will not suffice.” United States v. Davis, 60 M.J. 469,
473 (C.A.A.F. 2005) (citing United States v. Key, 57 M.J. 246, 249 (C.A.A.F. 2002);
Alves, 53 M.J. at 289; United States v. Gray, 51 M.J. 1, 19 (C.A.A.F. 1999).
      During presentencing, ineffective assistance of counsel can occur when
counsel fails to adequately present a sentencing case and introduce evidence that
would assist the accused during extenuation and mitigation. See United States v.
Boone, 49 M.J. 187, 196 (C.A.A.F. 1998).
      Appellant attaches great significance to the fact that, although in possession
of documents that showed appellant had a skull fracture as an infant, defense
counsel were not aware of appellant’s medical issues as an infant, and did not
adequately investigate either his childhood skull fracture, 4 or his later TBI diagnosis
during his military service. 5 Appellant maintains that this medical information


4
 Appellant suffered a skull fracture at 9 months old after being dropped by a
neighbor.
5
 Appellant was diagnosed with TBI on a deployment to Qatar following an episode
of syncope on an aircraft.


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SMITH—ARMY 20160049

would have resulted in a more successful sentencing case. The record does not
support appellant’s argument.

                    1. Deficient Performance During Presentencing

       In response to appellant’s allegation of ineffective assistance of counsel, we
ordered affidavits from appellant’s three trial defense counsel. 6 Appellant’s lead
defense counsel, CPT AF, was assigned to the case from the beginning and
represented appellant at the Article 32 investigation. Two other defense counsel
joined the defense team later. CPT L was assigned after the Article 32 hearing was
completed, and CPT JB was assigned after the case was referred to a general court-
martial. A document admitted as a Defense Appellate Exhibit showing appellant
suffered a fractured skull as an infant was also found as an attachment to the Article
32 report.

       In their affidavits, CPT L and CPT JB acknowledge they had no knowledge of
appellant’s skull fracture suffered as an infant. CPT AF in his affidavit does not
address the skull fracture specifically. He states that the defense chose not to
highlight evidence of appellant’s medical conditions in sentencing, instead pursuing
a theme of contrition and sympathy for his family. As the lead defense counsel, CPT
AF was responsible for the defense strategy during findings and sentencing.

        CPT AF made a tactical decision “not to highlight other medical conditions of
[appellant] during the sentencing case.” He was “acutely aware” of appellant’s
medical issues and during sentencing he “consciously chose not to address the issue
that [appellant] had neck surgery.” Each member of appellant’s defense team stated
that appellant never displayed any sign of mental defect or physical difficulty during
trial, and none thought emphasizing appellant’s medical issues would be an effective
mitigation strategy.

       Without more, a skull fracture suffered by appellant as a nine-month-old
infant is not itself a significant mitigating factor in his court-martial for multiple
sexual offenses forty-three years later. In the context of appellant’s defense, he did
not proffer that he suffered from a mental disease or defect; his defense was he did
not commit the acts. Although the defense team had this information in their
possession, the fact they attributed little significance to it was not an error that
shows counsel were deficient under the first prong of Strickland. Appellant’s
evidence and argument do not overcome the “strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689. We conclude that, defense counsels’ failure to pursue
6
  Appellant did not sign an affidavit alleging ineffective assistance of counsel. This
issue was instead raised in defense appellate counsel’s brief. Because there are no
competing affidavits, analysis pursuant to United States v. Ginn, 47 M.J. 236
(C.A.A.F. 1997) is unnecessary.


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SMITH—ARMY 20160049

or present evidence related to appellant’s skull fracture as a nine-month-old infant is
not an error that rises to the level of ineffective assistance of counsel.

       Defense counsel’s sentencing strategy was for appellant to appear contrite and
apologetic in hopes of gaining mercy from the military judge. 7 In addition, the
defense worked to show appellant would have enough family support to ensure that
he would not commit the alleged offenses again in the future. We do not find the
defense team’s sentencing strategy and decision not to introduce appellant’s medical
history was ineffective.

                 2. Emphasis of Appellant’s Military Service Record

       Appellant also criticizes his defense counsel for not adequately emphasizing
his military service during presentencing. Considering the extent of appellant’s
“Good Soldier Book” and the record, appellant’s defense counsel were not deficient
by not calling military witnesses or emphasizing appellant’s military service further.
       Defense counsel interviewed all military witnesses submitted by appellant. 8
They did not contact other military sentencing witnesses found in appellant’s “Good
Soldier Book” because of concerns over redundancy and potentially detrimental
cross-examination. CPT SL stated “We feared that no matter what the military
witnesses would have said, the Government would turn them during cross-
examination by asking questions like, ‘does a good soldier molest children’ over and
over. We believed that no matter what the response, it would not be helpful for
[appellant] if a witness either changed his or her opinion or lost credibility.”
Instead, defense counsel reasonably relied on documentary evidence to avoid this
scenario. Cf. United States v. Perez, 64 M.J. 239, 244 (C.A.A.F. 2006) (defense
counsel’s decision to reference “good soldier” testimony given during findings
portion of trial, without calling them to the stand during sentencing was not
ineffective assistance; counsel avoided dangers of cross-examination by
prosecution).
      Our review of the record supports defense counsels’ statements and strategy
involving appellant’s military service record. The defense team did not discuss
appellant’s military service at length during presentencing, counsel instead
accomplished this through admitting documentary evidence. The “Good Soldier

7
 Appellant faced a maximum sentence of confinement for life for the convicted
specifications.
8
 CPT SL submitted to the court the list of all witnesses submitted by appellant. JM
was the only military witness. He was interviewed and testified during the merits
portion of the trial. The military judge was able to consider JM’s testimony during
sentencing.


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SMITH—ARMY 20160049

Book” is an adequate representation of appellant’s military service record and covers
all aspects of his service. We find defense counsel’s presentencing case effective in
regard to appellant’s military service.

                     3. Appellant Has Not Established Prejudice

       Even if we found that defense counsel’s performance was deficient for the
reasons appellant alleged, we would still find appellant fails on the prejudice prong
of Strickland. Even if the omitted evidence were presented there is no reasonable
probability the results of the proceedings would have been different.

        Appellant has not demonstrated specific prejudice. He has not shown why his
medical issues and military witnesses would have resulted in a shorter adjudged
sentence; he has merely alleged that they could have resulted in a shorter adjudged
sentence. Appellant has not established the factual foundation required to show
prejudice in this case. Assuming for the sake of argument that defense counsel were
deficient in not introducing medical evidence and the military witness testimony, it
is still unclear how this would have mitigated the adjudged sentence.

       During presentencing, appellant testified about his difficult upbringing and
unstable childhood in his unsworn statement. The military judge knew about
appellant’s childhood from several family character witnesses who testified both
during the merits and presentencing portions of trial. The military judge also
observed appellant, who was coherent throughout trial and while he was cross-
examined by the government. In finding the appellant guilty of serious offenses, the
military judge rejected appellant’s denial of misconduct. Faced now with sentencing
a mendacious accused, it is difficult for this court to imagine that the military judge
would have attached such significance to the evidence of appellant’s medical issues
or testimony from military witnesses during presentencing to have resulted in a
lesser sentence.

      Therefore, we do not find appellant has shown prejudice due to his counsel’s
performance during the presentencing hearing.




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SMITH—ARMY 20160049

                              CONCLUSION

    The findings of guilty and sentence are AFFIRMED.

    Judge FEBBO and Judge SCHASBERGER concur.


                                  FORTHE
                                  FOR THECOURT:
                                          COURT:




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




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