Petition for Writ of Certiorari — Frost v. United States

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OPFICE @F THE CLERK

In The

Supreme Court of the Anited States

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MASTER SERGEANT (E-7)

PHILIP E. FROST,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Armed Forces

PETITION FOR WRIT OF CERTIORARI

PHILIP E. FROST

5771 Cal-Kolola Rd.

Caledonia, MS 39740

(662) 356-6104

e-mail: frostone@ebicom.net

Pro Se

March 2003

RS

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QUESTION PRESENTED

Whether Trial Counsel violated the Petitioner’s rights that

are afforded to him by the Fifth Amendment of the United

States Constitution and committed reversible error during

findings argument when he made the following prejudicial

statement: “What’s the evidence? The evidence you heard

is the sworn testimony of Rachael Kinzler. You heard

nothing to contradict that.” Then, after being instructed by

the military judge on how the burden of proof belongs to

the prosecution, Trial Counsel made the statement:

“You’ve heard no evidence to impeach Rachel Kinzler.”

Amendment V of the United States Constitution states,

“No person ... shall be compelled in any criminal case to

be a witness against himself.” The question that is pre-

sented is whether Trial Counsel violated Petitioner’s

rights not to testify by making inappropriate comments

during argument.

ii

TABLE UF CONTENTS

Page

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CONSTITUTIONAL AND STATUTORY PROVISIONS

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STATEMENT OF THE CASE ...............cccccccsssssssssssseeees 2

REASONS FOR GRANTING THE WRIT..................... 5

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TABLE OF AUTHORITIES

Page

MILITARY CASES

Lent v. Wells, 861 F.2d 975 (6th Cir. 1988) ..................c. eee 2

United States v. Mobley, 34 M.J. 527 (A.F.C.M.R.

RTC Gccsh series deel UR veda eaic deh amaeietindauhnbiniitinneceaannniioninns 5

United States v. Turner, 25 M.J. 324 (C.M.A. 1987).......... 4

United States v. Turner, 39 M.J. 259 (C.M.A. 1994).......... 4

United States v. Washington, 57 M.J. 394 (C._A.A.F.

SPER EECA oo er ancoe eT Onn ae 3

United States v. Sills, 56 M.J. 239 (C.A.A.F. 2002)............ 3

United States v. Edwards, 35 M.J. 351 (C.M.A.

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CONSTITUTIONAL PROVISIONS

ao atedlencnieltnbineninbens 1, 4,5

1

PETITION FOR WRIT OF CERTIORARI

The Petitioner, Master Sergeant Phillip E. Frost,

respectfully prays that a writ of certiorari issue to review

the order and judgment of the United States Air Force

Court of Criminal Appeals entered in his case or. Novem-

ber 16, 2001 and issue three of the petition that was not

reviewed by the United States Court of Appeals for the

Armed Forces on December 16, 2002.

+

OPINIONS BELOW

The order and judgment of the United States Air

Force Court of Criminal Appeals, ACM 33817 and the

order and judgment of the United States Court of Appeals

for the Armed Forces, United States v. Master Sergeant

Philip E. Frost, USCA Dkt. No. 02-0180/AF, is located at

Appendix B. as

es

v

JURISDICTION

The judgment of the United States Court of Appeals

for the Armed Forces was entered on December 16, 2002.

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1259(3) and 10 U.S.C. § 867(a\3).

@

7

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitu-

tion provides that, “No person ... shall be compelled in

any criminal case to be a witness against himself.”

2

The case Lent v. Wells, 861 F.2d 975 (6th Cir. 1988),

has been used as authority in cases such as this. That

court determined that one should consider certain factors

when a decision of harmless error is to be made: |

1) Whether the language used was “manifestly

intended” as comment on the failure of the

appellant to testify or was of such a character

that the members would “naturally and neces-

sarily” take it as such;

2) Whether the improper comments were iso-

lated or extensive;

3) Whether evidence of guilt is overwhelming;

and

4) Whether curative instructions were given, and

when.

When applying these factors on the Government’s com-

ments about the Petitioner’s failure to testify, Petitioner’s

right not to testify was constitutionally violated and was

not harmless error as the Government contends. The

Government ignored the military judge’s ruling that it was

prohibited from commenting on Petitioner’s right not to

testify. The Government’s repeated comments demonstrate

that not only was this not an isolated incident but it

mocked the military judge. The harm from what was said

was a constitutional violation of the Petitioner’s rights.

,

7

STATEMENT OF THE CASE

On July 2 and 3, 1999, the Petitioner was tried by a

general court-martial composed of a military judge and a

a te

3

jury of five officers. The Petitioner pled not guilty to two

charges of an indecent act under Article 134 and two

charges of indecent language under Article 134. The

Petitioner was found guilty of one charge of an indecent

act and one charge of indecent language under Article 134.

On November 16, 2001, the United States Air Force

Court of Criminal Appeals considered six issues for review.

The fifth issue will be presented here to this Honorable

Court.

V

WHETHER TRIAL COUNSEL COMMITTED

REVERSIBLE PLAIN ERROR DURING FIND-

INGS ARGUMENT WHEN HE MADE PREJU-

DICIAL INFERENCES THAT THE ONLY

EVIDENCE THE MEMBERS HEARD WAS THE

TESTIMONY OF RACHEL KINZLER WHICH

WAS NOT CONTRADICTED BY APPELLANT.

On June 3, 2002, the United States Court of Appeals

for the Armed Forces granted review of this case. They did

not review the aforementioned error, but it was an issue

put before them. Instead, they reviewed the following

issue.

WHETHER THE AIR’ FORCE COURT OF

CRIMINAL APPEALS’ APPLICATION OF AR-

TICLE 66(C), UCMJ, VIOLATES UNITED

STATES V. TURNER, 25 M.J. 324 (C.M.A. 1987).

On December 16, 2002 the United States Court of

Appeals for the Armed Forces affirmed the decision of the

lower court, citing that the decision of the lower court was

based on correct standards of review contained in United

States v. Washington, 57 M.J. 394 (C.AA.F. 2002), and

United States v. Sills, 56 M.J. 239 (C.A.A.F. 2002), and

‘ |

United States v. Turner, 25 M.J. 324 (C.M.A. 1987). This

court did not address Petitioner’s right not to testify in

specification three in the review.

WHETHER TRIAL COUNSEL COMMITTED

REVERSIBLE ERROR DURING FINDINGS

ARGUMENT WHEN HE MADE PREJUDICIAL

INFERENCES THAT THE ONLY EVIDENCE

THE MEMBERS HEARD WAS THE TESTI-

MONY OF RACHEL KINZLER, WHICH WAS

NOT CONTRADICTED BY APPELLANT.

In United States v. Turner and United States v. Ed-

wards it is confirmed that the accused has the right not to

testify and that right is protected by the Fifth Amendment

of the United States Constitution. It is improper for a

prosecutor to ask the court members to infer guilt because

an accused has exercised his constitutional rights. See

United States v. Turner, 39 M.J. 259, 262 (C.M.A. 1994)

(improper to comment on appellant’s refusal to consent to

search); (improper to comment on exercise of right to

remain silent); United States v. Edwards, 35 M.J. 351, 355

(C.M.A. 1992). Trial Counsel made two statements during

the United States v. Frost court-martial. The first viola-

tion, during findings argument, Trial Counsel said,

“What’s the evidence? The evidence you heard is the sworn

testimony of Rachel Kinzler. You heard nothing to contra-

dict that.” R.213. The Defense Counsel immediately |

objected and the objection was sustained. Then the mili-

tary judge instructed the jurors as follows: |

|

“You’ve heard the evidence of Rachel. That’s as

far as counsel can go in commenting to that ef- |

fect. There’s no burden upon the defense to pro- |

duce any evidence at all in this case. I'll instruct

you further on that concept.”

ee

a

5

The second violation came immediately after this

instruction by the judge. Trial Counsel proceeded to argue,

“You’ve heard no evidence to impeach Rachel Kinzler.”

R.214. No other instruction by the military judge was

offered to the jury or Trial Counsel on this second prohib-

ited prejudicial statement. This was impermissible and

obvious error, which was prejudicial to the Petitioner’s

right under the Fifth Amendment not to testify. “Trial

Counsel may not comment directly, indirectly, or by

innuendo, on the fact that an accused did not testify in his

defense”, United States v. Mobley, 34 M.J. 527 (A.F.C.M.R.

1991). The Trial Counsel’s comments in argument imper-

missibly and prejudicially conveyed to the jurors that the

burdeu of proof rested with the Petitioner in this case. His

comments effectively told the jurors they should find the

Petitioner guilty because the Petitioner had offered no

evidence to disprove Rachel Kinzler’s allegations. The

Constitution protects persons accused by the Government

of crimes from this impermissible and prejudicial tactic.

*

vy

REASONS FOR GRANTING THE WRIT

An important federal question that this honorable

Court should address is whether the Petitioner’s rights

under the Fifth Amendment of the United States Consti-

tution were violated. Petitioner has demonstrated suffi-

cient evidence of prejudicial violation of his rights to

warrant. This honorable Court should grant the writ of

certiorari to review the questions presented and determine

whether Petitioner’s remaining conviction must be set

aside because of the rights violation at his trial.

+

RR RS A Pe

CONCLUSION

The decision of the United States Air Force Court of

Criminal Appeals is in conflict with the United States

Constitution, Fifth Amendment. I, the Petitioner, respect-

fully ask that this Honorable Court find that, consistent

with the Fifth Amendment, the errors at trial of United

States v. Frost were harmful errors constituting a violation

of my rights and set aside the remaining conviction ad-

judged in my case.

The Petitioner therefore respectfully requests that

this Honorable Court grant his Petition for a Writ of

Certiorari.

Respectfully submitted,

PHILIP E. FROST

i 5771 Cal-Kolola Rd.

Caledonia, MS 39740

(662) 356-6104

e-mail: frostone@ebicom.net

Pro Se

March 2003

App. l

APPENDIX A

U.S. v. Philip E. FROST.

No. 02-0180/AF.

UNITED STATES COURT OF APPEALS FOR THE

ARMED FORCES

2002 CAAF LEXTS 1668

December 16, 2002, Decided

PRIOR HISTORY:

CCA 33817. United States v. Frost, 2001 C.C.A.

LEXIS 303 (A.F.C.C.A. Nov. 16, 2001).

DISPOSITION:

AFFIRMED.

OPINION:

On further consideration of the granted issue in light

of United States v. Washington, 57 M.J. 394 (C.A.A.F.

2002), and United States v. Sills, 56 M.J. 239 (C.A.A.F.

2002), we conclude that the decision of the lower court was

based on correct standards of review contained in United

States v. Turner, 25 M.J. 324 (C.M.A. 1987). Accordingly,

it is ordered that the decision of the United States Air

Force Court of Criminal Appeals is affirmed.

|

App. 2

APPENDIX B

UNITED STATES AIR FORCE COURT OF

CRIMINAL APPEALS

UNITED STATES

v.

Master Sergeant PHILIP E. FROST

United States Air Force

ACM33817

16 November 2001

Sentence aajudged 2 July 1999 by GCM con-

_ vened ai Dyess Air Force Base, Texas. Military

Judge: J. Jeremiah Mahoney.

Approved sentence: Bad-conduct discharge, con-

finement for six months, and reduction to E-3.

Appellate Counsel for Appellant: Frank J. Spin-

ner (argued), Colonel James Wise, Lieutenant

Colonel Timothy W. Murphy, Lieutenant Colonel

Brandon A. Burnett and Captain Patience E.

Schermer.

Appellate Counsel for the United States: Colonel

Anthony P. Dattilo, Lieutenant Colonel Ronald A. 2 |

Rodgers, Lieutenant Colonel William B. Smith,

Major Lance B. Sigmon, Major Eric D. Placke,

Major Bryan T. Wheeler, and Captain Matthew

J. Mulbarger.

Before

STARR, BURD, and HEAD |

Appellate Military Judges |

|

OPINION OF THE COURT

App. 3

STARR, Senior Judge

A general court-martial consisting of officer members

convicted the appellant, contrary to his pleas, of one

specification of indecent acts upon a child and one specifi-

cation of communicating indecent language to two chil-

dren, in violation of Article 134, UCMJ, 10 U.S.C. § 934.

The members acquitted the appellant of another specifica-

tion of indecent acts with a child and another specification

of indecent language. The convening approved the ad-

judged sentence of a bad-conduct discharge, confinement

for 6 months, and reduction to E-3.

Before this Court, the appellant claims: (1) The

military judge erred in denying a defense discovery mo-

tion; (2) The judge erred in denying a defense motion for

the appointment of a defense investigator; (3) The trial

counsel’s findings argument violated the appellant’s right

not to testify; (4) The evidence is legally and factualiy

insufficient to support the conviction for indecent acts

upon a child (Specification 2 of the Charge); (5) The

evidence is legally and factually insufficient to support the

conviction for indecent language to children (Specification

4 of the Charge); and (6) Under United States v. Gorski, 47

M.J. 370 (1997), the appellant is entitled to money errone-

ously taken from him before the convening authority

acted. The government concedes the final issue. We agree

with the appellant that his conviction for indecent lan-

guage to children cannot stand, and therefore set aside

and dismiss Specification 4 of the Charge. We affirm the

appellant’s conviction for indecent acts upon a child. After

reassessing the sentence in light of our action, we affirm -

the adjudged and approved sentence.

App. 4

BACKGROUND

In May 1994, the appellant, a married technical

sergeant permanently assigned to Dvess Air Force Base

(AFB), Texas, became romantically involved with Joyce,

while on an extended temporary “uty (TDY) assignment at

Ellsworth AFB, South Dakota. He spent most weekends

and some weeknights at her home in Rapid City, which

was also shared by Joyce’s three daughters, 12-year-old

RK and her 5 and 16-year-old sisters. The appellant

essentially injected himself as the “man of the house,” and

although Joyce knew the appellant had a wife and chil-

dren in Texas, her daughters did not. The arrangement

abruptly ended in late Summer 1994 when the appellant’s

TDY was completed and he returned to Dyess and his

family. Communication between the appellant and Joyce

gradually dwindled and by 1998 there was none between

them. On Labor Day 1998, Joyce, RK, and RK’s older

sister were discussing RK’s father and Joyce’s past boy-

friends. RK became emotional and asked Joyce if she knew

why she (RK) did not like the appellant. Joyce asked why

and RK answered that he had “molested” her. This

launched the investigation that ultimately resulted in the

appellant’s trial by general court-martial and his convic-

tion for indecent acts upon RK and indecent language to

RK and her five-year-old sister.

THE MOTION TO COMPEL DISCOVERY

During the initial Article 39(a), UCMJ, session, the

defense moved for the military judge to order the produc-

tion of a Social Security disability claim pertaining to RK.

The alleged offenses occurred during the Summer of 1994.

While preparing for trial, the defense came into possession

of a document reflecting that in September 1994 Joyce had

App. 5

filed a Social Security disability claim on behalf of RK. The

defense could discern nothing else about it from the

materials that were disclosed, but believed the claim

might be related to the alleged offenses and hence might

contain pertinent reports and test results. The trial

counsel, maintaining there was no connection between the

claim and the alleged offenses, refused to provide the

defense with any additional information; and the matter

was litigated before the military judge.

On the motion, Joyce testified that RK had been born

without sight in one eye, causing her to require a special

and expensive lens in her eyeglasses. She testified that in

1994 she had lost her insurance coverage and had filed the

claim in hopes of receiving income for RK through Social

Security based on RK’s condition. She testified that the

claim was disapproved, that she did not pursue it, and

that no reports or tests of any kind were generated by the

claim. The military judge denied the motion.

According to the appellant, the judge should have

examined the requested material in camera before denying

the motion, and his ruling deprived the appellant of his

right to prepare and present an adequate defense. We

review a military judge’s decision to deny a defense re-

quest for discovery for an abuse of discretion. United

States v. Pinson, 54 M.J. 692 (A.F. Ct. Crim. App. 2001).

The key question when discovery is denied is whether the

information that was not disclosed was material to the

preparation of the defense. United States v. Figueroa, 55

M.J. 525, 528 (A.F. Ct. Crim. App. 2001). The question of

materiality is a question of law and is therefore reviewed

de novo. United States v. Morris, 52 M.J. 193, 198 (1999).

App. 6

Applying these standards to the requested Social

Security disability claim, we find no abuse of discretion,

and we find the requested information not material to the

preparation of a defense. Joyce’s testimony, neither refuted

nor impeached in any way, conclusively established that

the claim had absolutely nothing to do with this case.

Following Joyce’s testimony, the defense did not even take

the opportunity to argue the issue prior to the judge’s

recessing to decide the motion, which is telling evidence of

its merit in the eyes of the defense team. The defense

likewise did not request an in camera review of the dis-

ability claim. Although it was within the military judge’s

discretion to sua sponte conduct such a review, and while

we agree with the appellant that the inclusion of the claim

as a sealed exhibit would aid appellate review, the judge

did not abuse his discretion by not doing so. Clearly, RK’s

eyesight was not even remotely connected to any issue in

this case, and her mother’s testimony dispelled any notion

of the possible existence of any related reports or test

results. See generally United States v. Briggs, 48 M.J. 143

(1999). We therefore reject this assertion of error.

THE REQUEST FOR A DESENSE [sic]

INVESTIGATOR

Following referral of charges, the defense twice sought

investigative assistance from the convening authority.

According to the defense, the Air Force Office of Special

Investigations (AFOSI) had inadequately investigated the

case, focusing only on the appellant and not on the alleged

victim and her family. These requests were denied follow-

ing a finding by the convening authority that no unique or

unduly burdensome tasks existed that required skills not

possessed by the defense team. The defense did not renew

App. 7

its request before the military judge. The appellant claims

error before this Court.

A request for investigative assistance is first submit-

ted to the convening authority. If denied, it may then be

renewed before the military judge as a motion for appro-

priate relief. See Rule for Court-Martial (R.C.M.) 703(d)

and 906(b)(7). Such a motion must be addressed to the

military judge before the entry of a plea or, absent good

cause, it is “waived” under R.C.M. 905(b)(4) and 905(e). In

absence of plain error, the appellant has, by not raising

this issue before the military judge, forfeited the issue at

the appellate level. Cf. United States v. Hill, 46 M.J. 567,

573 (A.F. Ct. Crim. App. 1997). We do not find plain error.

The issue has not, therefore, been preserved for appellate

review.

THE TRIAL COUNSEL'S FINDINGS ARGUMENT

Two witnesses testified during the findings portion of

the trial — RK for the prosecution and a clinical/forensic

psychologist for the defense. Barely into the trial counsel’s

findings argument, the following occurred:

CTC: What’s the evidence? The evidence you

heard is the sworn testimony of [RK]. You’ve

heard nothing to contradict that.

CIV DC: Your Honor, we're going to object to

that.

CTC: It’s a fair inference on the evidence, your

Honor.

MJ: The objection is sustained (emphasis

added). You’ve heard the evidence of [RK]. That’s as

far as counsel can go in commenting to that effect.

App. 8

There’s no burden upon the defense to produce

any evidence at all in this case. [ll instruct you

further on that concept. Is that satisfactory?

CIV DC: Could I have the specific objection af-

ter we get through with arguments, preserve

that until later?

MJ: Yes.

CTC: You’ve heard no evidence — may I con-

tinue, your Honor?

MJ: Go ahead.

CTC: You’ve heard no evidence to impeach

[ieK)....

The trial counsel then completed his argument, followed

by the defense argument and prosecution rebuttal argu-

ment. The military judge then instructed the members,

closed the court, and conducted an Article 39(a) session on

the objection. The following discussion the [sic] occurred:

CIV CD: I just wanted to make a specific objec-

tion that I reserved earlier. It was a comment on

the part of the prosecution for the defendant not

testifying, violating his constitutional rights.

MJ: In other words, you’re objecting to the

statement that [RK’s] testimony was unrebutted?

CIV DC: Yes.

MJ: What about that?

CTC: Your Honor, it was not an impermissible

comment on the accused’s decision not to testify.

In fact, that comment didn’t go to that. The com-

ment went to the fact that she didn’t retract it

from herself on cross-examination, that the expert

App. 9

didn’t rebut it. It wasn’t a comment at all on the

defense’s decision not to call any live witnesses.

It doesn’t go that far.

MJ: Well by her testimony, the only person pre-

sent on one of those two occasions, other than

herself and the accused, was asleep. So there

would have been no other eyewitnesses besides

[RK], except for the accused, right?

CTC: Or [RK], that’s correct, sir.

MJ: So if her testimony is unrebutted, or if it’s

stated that it’s unrebutted, that raises an infer-

ence that’s pointed out by [CIV DC] that the ar-

gument is a comment on the fact that the

accused has not chosen to testify.

CTC: It wasn’t intended to do that. I think your

curative instruction sufficed that. It was in-

tended to state that [RK] never recanted that,

that she stuck with her story. So she would be

one of the witnesses available.

MJ: Well that inference could have been drawn

from the argument. I believe the prompt objec-

tion and my preliminary instruction, coupled

with the final findings instructions, adequately

dealt with it. So the objection is overruled (em-

phasis added). Do you have any motion?

CIV DC: No, your Honor.

According to the appellant, the military’ judge’s

curative instruction regarding the trial counsel’s first

remark was insufficient to cure the error, while the second

remark (no evidence to impeach RK) amounted to plain

error. We, however, view the civilian defense counsel’s

objection to the initial remark and his request to later

make a more complete record of the objection as sufficient

en or a mL

App. 10

to preserve the issue as to both remarks. We therefore

decline to conduct a plain error analysis. United States v.

Mobley, 34 M.J. 527, 529-30 (A.F.C.M.R. 1991), aff’d 36

M.J. 34 (C.M.A. 1992); See also United States v. Shepard,

38 M.J. 408, 413 (C.M.A. 1993).

oe

Even if the trial counsel’s remarks constituted error,

and we do not believe they did, the error was clearly

harmless under the circumstances of this case. United

States v. Dennis, 39 M.J. 623, 625 (N.M. Ct. Crim. App.

1993), aff'd 40 M.J. 305 (C.M.A. 1994); See also United

States v. Saint John, 48 C.M.R. 312 (C.M.A. 1974). First,

the trial cuunsel’s remarks were not “manifestly intended”

as comments on the appellant’s decision to testify, nor

were they of such a character that the members would

naturally take them as such. Second, the comments were

isolated, appearing only twice in an argument that occu-

pies over seven pages of transcript. Third, as we discuss in

the following section, the evidence of the appellant’s guilt

is overwhelming on the indecent acts upon a child specifi-

cation. Fourth, the judge provided a sufficient curative

instruction immediately following the initial comment and

immediately preceding the second comment. Finally, the

military judge’s pattern instructions, addressing the

presumption of innocence and the appeilant’s right not to

testify re-enforced his curative instruction. See generally

Mobley, 34 M.J. at 531-32. Given these factors, we are

persuaded beyond a reasonable doubt that, even in the

absence of the comments, the members would have con-

victed the appellant of the indecent acts upon a child

specification. We therefore reject this claim of error.

App. 11

FACTUAL AND LEGAL SUFFICIENCY

The appellant attacks both of his convictions on legal

and factual sufficiency grounds. It is clear, however, from

the brief and from oral argument that his theory on the

indecent language specification is grounded in legal

sufficiency, while his theory on the indecent acts specifica-

tion is grounded in factual sufficiency. As to the indecent

language conviction, the appellant claims the words

spoken do not, under the circumstances, rise to the level of

actionable indecent language. As to the indecent acts

conviction, the appellant claims we should not believe RK,

essentially because of prior inconsistent statements and

her motive to fabricate as explained by the clinica)/forensic

psychologist.

This Court has a duty to determine the legal and

factual sufficiency of the evidence. Article 66(c), UCMJ. We

may approve only those findings of guilt that we deter-

mine are correct in both law and fact. The test for legal

sufficiency is whether, considering the evidence in the

light most favorable to the prosecution, a reasonable

factfinder could have found all the essential elements

beyond a reasonable doubt. United States v. Turner, 25

M.J. 324 (C.M.A. 1987). 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, the judges of this Court are convinced

beyond a reasonable doubt of the appellant’s guilt. Turner,

25 M.J. at 325. In United States v. Washington, 54 M.J.

936, 940 (A.F. Ct. Crim. App. 2001), however, this Court

observed that Congress clearly intended the service courts

of criminal appeals to affirm the trial court’s factual find-

ings if the weight of the credible evidence for conviction

App. 12

outweighed that for acquittal. See also United States v.

Nazario, ACM34221 (A.F. Ct. Crim. App. 19 Oct 2001).

RK testified that one evening during the summer of

1994, the appellant, Joyce, and all three girls were in the

kitchen when the appellant remarked, “Your mom has big

tits, I guess you guys will too.” Everyone present heard the

remark. Joyce did nothing other than look at the appel-

lant, who “laughed” after saying it. RK thought it was

“disgusting.” She testified the appellant commonly used

such language around the family. The older daughter

likewise routinely used crude language around the appel-

lant. There was no evidence of record these practices were

of any particular concern to Joyce. Two specifications were

referred based on this comment, one alleging indecent

language toward the 16-year-old daughter, and one alleg-

ing indecent language to the children referring to RK and

her 5-year-old sister. The members acquitted the appellant

of the specification involving the 16-year-old, but convicted

him of indecent language to the younger children.

Indecent language is defined as “that which is grossly

offensive to modesty, decency, or propriety, or shocks the

moral sense, because of its vulgar, filthy, or disgusting

nature, or its tendency to incite lustful thought.” Manual

for Courts-Martial, United States, (MCM), Part IV, 7 89

(1998 ed.). Not every crude and disgusting remark in the

presence of a child qualifies as actionable indecent lan-

guage. “The test is whether the particular language is

calculated to corrupt morals or excite libidinous thoughts.”

United States v. Brinson, 49 M.J. 360, 364 (1998) (quoting

United States v. Linyear, 3 M.J. 1027, 1030 (N.C.M.R.

1977)) (emphasis added). Not only the words themselves,

but the surrounding circumstances must be taken into

account. United States v. French, 31 M.J. 57, 60 (C.M.A.

App. 13

1990). Given the verbal dynamics of this particular group,

and the circumstances under which the remark was made,

we find the appellant’s remark, while vulgar and tasteless,

legally insufficient to constitute actionable indecent

language to children. See generally United States v. Hul-

lett, 40 M.J. 189 (C.M.A. 1994). We therefore set aside the

appellant’s conviction on this specification and dismiss it.

With regard to the indecent acts specification, RK

testified that one night, while she and her little sister were

home alone with the appellant and her sister lay asleep on

the floor, the appellant asked her to sit with him on the

couch while they watched TV. She did, and he then asked

her to lie down. Again she complied, and he lay behind her.

The appellant began rubbing RK’s hair and scratching her

back. He then began rubbing her stomach and then moved

his hand to her chest area. The appellant asked RK if she

liked it but she did not give him a “straight answer.”

According to RK, the appellant then “went down into my

underwear and started rubbing there.” RK then told the

appellant she had to go to bed and left the room.

The defense presented the testimony of one witness, a

clinical/forensic psychologist, who conducted an extensive

analysis of the allegations, focusing on the AFOSI investi-

gation of the case and on the dynamics of RK’s family

history. (He interviewed RK’s older sister, but Joyce would

not permit him to interview RK). He also examined the

appellant’s history and interviewed both the appellant and

several people who knew him. The psychologist concluded

that aspects of the AFOSI investigation were troubling

and that certain factors supported the argument that RK’s

memory had evolved over time. He nonetheless also

concluded that given the totality of the circumstances of

the case, the nature of the sexual abuse reported by RK

App. 14

was “reasonably probable” and that the appellant pos-

sessed several “risk factors” that bolstered RK’s credibility.

We have carefully examined RK’s testimony as well as

the defense expert’s comprehensive analysis of the case

presented during his testimony. Having done so, we make

two observations. First, the members no doubt paid careful

attention to the entirety of the testimony, and likely

acquitted the appellant of a second specification alleging

an earlier indecent act upon RK for the very reasons the

appellant now advances. Secondly, regarding the indecent

acts, RK’s testimony is both clear and credible and is not

put into substantial doubt by the expert’s testimony. The

evidence supporting the appellant’s conviction for indecent

acts upon then 12-year-old RK is both legally and factually

sufficient under Turner. If we were to apply the standards

of factual sufficiency discussed in Washington and

Nazario, we would also affirm the appellant’s conviction

for indecent acts upon RK.

THE REMEDY

We affirm the appellant’s conviction under Specifica-

tion 2 of the Charge, indecent acts upon a child. We set

aside the appellant’s conviction under Specification 4 of

the Charge, indecent language to children, and we dismiss

that specification. If a Court of Criminal Appeals deter-

mines that a finding of guilty should not be affirmed, the

appellant’s sentence is subjected to analysis under the

principles announced in United States v. Sales, 22 MJ.

305 (C.M.A. 1986). United States v. Riley, 55 M.J. 185, 190

(2001). This Court may reassess the sentence instead of

ordering a sentence rehearing if we are convinced that the

sentence “would have been at least of a certain magnitude”

ee

App. 15

absent the error, or in this case absent the conviction

which is being set aside. Sales, 22 M.J. at 307. But see

United States v. Sills, ACM 34323 (A.F. Ct. Crim. App. 18

Oct 2001). We are confident we can reassess in this case.

As is clear from the trial counsel’s sentencing argu-

ment, the indecent language conviction played only a

minor role in the appellant’s case. The entire thrust of the

sentencing argument was on the “crime” the appellant

perpetrated on RK. In an argument spanning three pages

of transcript, the trial counsel mentioned the indecent

language specification only once in passing. He then

focused on: “[TJhe most important thing. That’s the crime

he committed against [RK].” He argued:

[RK] has to deal with this for the rest of her life,

for the rest of her life. She’s had to deal with it

for the last five years without telling anybody,

keeping it hidden, bearing the burden by herself.

She'll carry it with her when she has a boyfriend.

She'll think about it when she gets married.

She'll think about it if she decides to have chil-

dren. The rest of her life she’ll have to carry this.

In sum, this is a case about indecent acts, not indecent

language. We are convinced that the members’ sentence,

absent the conviction we now set aside, would have been

no different than that adjudged. After carefully reviewing

the entire record, and after reassessing the sentence, we

are convinced that the appropriate sentence in this case is

a bad-conduct discharge, confinement for six months, and

reduction from E-7 to E-3. United States v. Healy, 26 M.J.

394 (C.M.A. 1988); United States v. Snelling, 14 M.J. 267

(C.M.A. 1982).

App. 16

The government concedes error in the collection of

automatic forfeitures from the appellant before the con-

vening authority acted. Because the appellant’s offense

occurred before 1 April 1996, any such automatic forfei-

tures were collected in contravention of United States v.

Gorski, 47 M.J. 370 (1997), and they must be restored to

him. United States v. Dewrell, 52 M.J. 601, 616 (A.F. Ct.

Crim. App. 1999). Because the convening authority waived

automatic forfeitures at the E-3 rate, however, the recov-

ery is limited to the difference in E-7 and E-3 pay and

allowances.

The appellant’s conviction under Specification 4 of the

Charge is set aside and dismissed. The appellant’s convic-

tion under Specification 2 of the Charge and the sentence,

as reassessed, are

AFFIRMED.

[SEAL]