United States v. Private First Class STEFON M. REID ( 2024 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
FLEMING, COOPER, and SCHLACK
Appellate Military Judges
UNITED STATES, Appellee
v.
Private First Class STEFON M. REID
United States Army, Appellant
ARMY 20220160
Headquarters, Joint Readiness Training Center and Fort Johnson
Scott Z. Hughes, Military Judge
Colonel Leslie A. Rowley, Staff Judge Advocate
For Appellant: Colonel Philip M. Staten, JA; Major Mitchell D. Herniak, JA; Major
Jake D. Nare, JA (on brief); Colonel Philip M. Staten, JA; Lieutenant Colonel
Autumn R. Porter, JA; Captain Matthew S. Fields, JA; Major Jake D. Nare, JA
(reply brief).
For Appellee: Colonel Jacqueline J. DeGaine, JA; Major Justin L. Talley, JA;
Captain Joshua A. Hartsell, JA (on brief).
28 October 2024
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
COOPER, Judge:
Appellant raises three issues on appeal, two of which warrant discussion, but
no relief. :
Appellant contends his trial defense counsel were ineffective for failing to
introduce evidence of prior sexual activity between the victim and an outcry witness,
who became the victim’s husband shortly before trial began. Appellant also claims
trial counsel committed prosecutorial misconduct by eliciting what appellant
contends is misleading testimony about the relationship between the victim and the
same outcry witness. We reject both arguments and affirm the finding of guilty and
the sentence.
REID — ARMY 20220160
BACKGROUND
A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of sexual assault, in violation of Article
120, Uniform Code of Military Justice, 10 U.S.C. § 920 (2019 ed.) [UCMJ].! The
military judge sentenced appellant to a dishonorable discharge, confinement for
three years, and reduction to the grade of E-1.
Appellant first met the victim in February 2021, when she was in-
processing Fort Johnson. Over the course of the following months, appellant
and the victim had minimal interactions.
In June 2021, the victim was doing laundry at her barracks. Appellant
approached and offered to help, so the victim allowed him to carry her
laundry back to her room. After arriving in her room, the victim began to
clean, telling appellant she had friends coming over later that evening.
Appellant asked if he could come over and the victim agreed. Appellant left
the victim’s room.
A short time later, appellant returned to the victim’s room, to the
victim’s surprise. Appellant sat on the victim’s bed as she continued cleaning
and asked the victim about her relationship status. At some point, the victim
became uncomfortable and told appellant she wanted him to leave, but he did
not leave. Done cleaning, the victim sat on the end of her bed and began to
watch television. Appellant moved up the bed and attempted to kiss the
victim. The victim told appellant no, however, appellant grabbed the victim’s
face to try to kiss her.
The victim attempted to escape by partially rolling off the bed, but
appellant got on top of her, and she could not get away. The victim tried to
push appellant off of her, telling him “stop” and “no” over and over again.
Appellant pinned her down, using his body to cover hers, pulled down her
shorts, and penetrated her vagina with his penis. The victim continued to
struggle, so appellant flipped her onto her stomach and penetrated her a
second time. After appellant ejaculated onto the victim’s back, he got up, got
dressed, and then, left the room.
Once appellant left, the victim video called her cousin, and also talked
to her aunt and her mother. During these calls, she was crying, shaking, and
unable to speak coherently.
' Appellant was found not guilty of one specification of rape, in violation of Article
120, UCMJ.
REID — ARMY 20220160
The first outcry witness to see the victim in person after the sexual
assault was Private First Class (PFC) A substantial amount of evidence
regarding PFC MB and the victim’s interactions and relationship status was
admitted at trial.
Private First Class Bana the victim met in February 2021 when in-
processing Fort Johnson. At the time of the sexual assault, PFC Bang the
victim testified they were friends—he kept a gym bag at her barracks, the two
went to multiple, private dinners, and he regularly borrowed the victim’s car.
Private First Class Bhaiso went to the hospital after the sexual assault to be
with the victim, at her request. However, both he and the victim denied any
romantic or “dating” relationship until December 2021, several months after
the victim had left Fort Johnson.” Private First Class [if and the victim were
married in March 2022, the same week as the court-martial.
During the trial, the relationship status between the victim and PFC
at the time of the sexual assault was hotly contested. Both the victim and PFC
testified that at the time of the sexual assault, they were just friends and
did not start “dating” until months later. One of the victim’s friends, PFC
however, described the victim and PFC is being “romantically
together” in an “on and off again” fashion prior to the sexual assault
occurring, and that the assault allegation brought the two closer. That same
witness also averred the victim and PFC a: not “dating” and had “no
labels” on their relationship.
During the initial investigation by the Criminal Investigative Division,
PFC Boi agents he was close friends with the victim and disclosed that he
had been physically intimate with her a few times prior to the day of the
sexual assault. This statement was never admitted at trial. Neither party
provided notice of their intent to offer evidence of the sexual component of
their friendship prior to the assault under Military Rule of Evidence [M.R.E.]
412.
LAW AND DISCUSSION
A. Ineffective Assistance of Counsel
This court reviews claims of ineffective assistance of counsel de novo.
United States v. Furth, 81 M.J. 114, 117 (C.A.A.F. 2021). “To prevail on an
ineffective assistance claim, the appellant bears the burden of proving that the
performance of defense counsel was deficient, and that appellant was prejudiced by
2 In fact, PFC Biestified that he was seeing other people at the time of the sexual
assault, and as friends, he had talked to the victim about that.
REID — ARMY 20220160
the error.” United States v. Captain, 75 M.J. 99, 103 (C.A.A.F. 2016) (citing
Strickland v. Washington, 466 U.S. 668, 698 (1984)). “[I]n assessing an ineffective
assistance claim, we can analyze Strickland’s performance and prejudice prongs
independently, and if appellant fails either prong, his claim must fail.” United
States v. Soler, ARMY 20210017, 2022 CCA LEXIS 268, at *6-7 (Army Ct. Crim.
App. 9 May 2022) (mem. op.) (citing Strickland, 466 U.S. at 694). Because of this,
the court “need not determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged
deficiencies .... If it is easier to dispose of an ineffectiveness claim on the ground
of lack of sufficient prejudice .. . that course should be followed.” Strickland, 466
U.S. at 697.
“Prejudice is established by ‘showing that counsel’s errors were so serious as
to deprive the defendant of a fair trial, a trial whose result is reliable.’” Soler, 2022
CCA LEXIS 268, at *6 (citing Strickland, 466 U.S. at 687). In other words,
appellant must show “‘a reasonable probability that, but for counsel’s [deficient
performance] the result of the proceeding would have been different.’” Captain, 75
M.J. at 103 (citing Strickland, 466 U.S. at 694). “The likelihood of a different result
must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112
(2011).
Even assuming arguendo deficient performance, appellant fails to establish
prejudice. Appellant has not met his burden of demonstrating to a “reasonable
probability” that a different outcome would have resulted if defense counsel sought
to admit evidence of the prior sexual activity between the victim and PFC
It was clearly established that the victim and PFC JM were close friends.
Defense’s theory of the case was the victim lied to PFC in an attempt to deny
consensual sexual intercourse with appellant or to gain sympathy from PFC and
improve their relationship. Defense introduced a substantial amount of evidence
regarding their interactions to support this theory and to further argue some form of
a romantic relationship existed between them at the time of the sexual assault.
The victim and PFC Bere questioned at trial multiple times about their
interactions and relationship status by both parties and the military judge, and it was
also discussed in closing arguments by both parties. The extent of their close
friendship, the possibility they were “romantically together,” as PFC GM testified,
and the alleged impact this may have had on the victim’s motive to fabricate was
squarely before the factfinder for consideration.
Under the facts of this case, additional evidence of alleged sexual activity
between the victim and PFC BB would have provided little, if any, probative value.
Engaging in sexual activity does not per se establish a relationship as any more
emotionally important to a person, nor does it inherently create a heightened motive
REID — ARMY 20220160
to fabricate. United States v. Alston, 75 M.J. 875, 882-83 (Army Ct. Crim. App.
2016) (recognizing the impact of emotional attachments on biases and motives,
regardless of the romantic or sexual nature of the relationship). Therefore, in this
case, the failure to admit evidence regarding the alleged sexual activity between the
victim and PFC [around the time of the sexual assault did not result in material
prejudice to appellant.
The defense counsel effectively impeached the victim and PFC
challenging their credibility multiple times throughout trial regarding their
relationship status, not only through detailed cross-examination, but also through the
victim’s friend, PFC AM, who testified about the romantic relationship that existed
between the two. This allowed defense counsel to argue during closing that the
victim possessed a motive to fabricate based on her close relationship with PFC
Finally, the government’s case was strong. The victim provided detailed
testimony of the sexual assault and the government presented compelling
corroboration through her cousin, her mother, and PFC Moments after the
assault, the victim’s cousin was on a FaceTime call with the victim and described
her as “crying”, “shaking”, and being unable to talk. Her mother, who spoke with
the victim on the phone shortly thereafter, testified she had never seen her daughter
like that, “crying hysterically,” a “cry I’ve never heard before” and of a scale from
one to ten, regarding how hard she was crying, her mother rated her a “ten, 20.”°
Private First Class Wi testified when he spoke with the victim on the phone she was
“in a state of, like, panic, and she was screaming and crying.” When he arrived at
her room, he described her “[i]n fear, kind of balled up a little bit... crying .. . not
talking back tome.... I never seen her like her crying like that before.” In
addition, the government presented testimony of a sexual assault nurse examiner
who conducted DNA swabs after the assault, and a forensic biologist who testified
the DNA established a match with appellant.
Given the above factors, admitting evidence of sexual activity between the
victim and PFC would not have led to a different result, and accordingly, we find
no prejudice to the appellant.
B. Prosecutorial Misconduct
The court reviews claims of “prosecutorial misconduct ... de novo and where
... no objection is made, we review for plain error.” United States v. Voorhees, 79
M.J. 5, 9 (C.A.A.F. 2019). Under plain error review, the appellant bears the burden
“of establishing (1) error that is (2) clear or obvious and (3) results in material
3 The victim’s mother testified that she was in Georgia when she spoke with her
daughter. Based on how “hysterical” her daughter was, the mother packed a bag and
immediately drove ten to eleven hours to Fort Johnson, Louisiana, to be with her.
REID — ARMY 20220160
prejudice to his substantial rights.” United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F.
2014).
“Prosecutorial misconduct is action or inaction by a prosecutor in violation of
some legal norm or standard, e.g.,a constitutional provision, a statute, a Manual [for
Courts-Martial] rule, or an applicable professional ethics canon.” United States v.
Pabelona, 76 M.J. 9, 11 (C.A.A.F. 2017) (internal quotations and citations omitted).
Government counsel:
may prosecute with earnestness and vigor... [b]ut, while he may
strike hard blows, he is not at liberty to strike foul ones. It is as much
his duty to refrain from improper methods calculated to produce a
wrongful conviction as it is to use every legitimate means to bring
about a just one.
Berger v. United States, 295 U.S. 78, 88 (1935). Prosecutorial misconduct is thus
“behavior by the prosecuting attorney that ‘oversteps the bounds of .. . propriety
and fairness which should characterize the conduct of... an officer in the
prosecution of a criminal offense.’” United States v. Henderson, 83 M.J. 735, 746
(Army Ct. Crim. App. 2023) (quoting Berger, 295 U.S. at 84).
Appellant argues the prosecution elicited misleading and potentially false
testimony from the victim and PFC 7 We disagree. The prosecution asked the
victim and PFC PB multiple times whether they were in a romantic or dating
relationship, to which they consistently answered “no.” The prosecutor’s questions
did not produce false or misleading responses since, in this case, the occasional
sexual activity between the victim and PFC i dia not equate to a romantic or
“dating” relationship. This court has previously recognized there is a difference
between a romantic relationship and a sexual relationship, and one does not
presuppose the other. Alston, 75 M.J. at 883 (“[o]ne person’s emotional attachment
to another person is often fertile ground for examining biases and motives... . Mil.
R. Evid. 412 would likely be triggered if a party tried using sexual behavior... asa
proxy for establishing or inferring an emotional connection from which such a bias
or a motive might flow.”).
We find insufficient evidence to support appellant’s contention the
prosecution overstepped the bounds of propriety when asking about the relationship
status between the victim and PFC a The victim and PFC Ml testified they were
not in a romantic or dating relationship. PEC(testified they were friends and he
talked with the victim about the women he was “seeing.” The victim similarly
testified they were friends before the assault, and they did not start dating until
months later. Defense presented a witness that disputed their testimony on this
matter and put their credibility at issue. Conflicting testimony is not uncommon in a
court-martial and it becomes a matter for the factfinder to weigh when reaching a
REID — ARMY 20220160
decision. However, the prosecution did not violate any legal norm or standard when
asking about the existence of a romantic relationship, while knowing the two had
been physically intimate in the past. We find no error, plain or otherwise, and
therefore, no prosecutorial misconduct.
CONCLUSION
On consideration of the entire record, the finding of guilty and the sentence
are AFFIRMED.
Senior Judge FLEMING and Judge SCHLACK concur.
FOR THE COURT:
JAMES W. HERRING, JR.
Clerk of Court