# Petition for Writ of Certiorari — Frost v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2003
- **Citation:** 538 U.S. 1000

## Text

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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

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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
BPE FEIT BED oxssesn>tesnlcisnncteneiatniaiiantvbdamnaieeaiaaae 1
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]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1319%3A1. Public record. Not legal advice.