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United States v. Apgar ( 2023 )


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  •             U NITED S TATES A IR F ORCE
    C OURT OF C RIMINAL APPEALS
    ________________________
    No. ACM 40210
    ________________________
    UNITED STATES
    Appellee
    v.
    Christopher W. APGAR
    Senior Airman (E-4), U.S. Air Force, Appellant
    ________________________
    Appeal from the United States Air Force Trial Judiciary
    Decided 10 April 2023
    ________________________
    Military Judge: James Dorman.
    Sentence: Sentence adjudged 3 August 2021 by GCM convened at Joint
    Base Pearl Harbor-Hickam, Hawaii. Sentence entered by military judge
    on 1 September 2021: Bad-conduct discharge, confinement for 12
    months, forfeiture of all pay and allowances, and reduction to E-1.
    For Appellant: Major Megan E. Hoffman, USAF.
    For Appellee: Colonel Steven J. Grocki, USAF; Lieutenant Colonel
    Thomas J. Alford, USAF; Major John P. Patera, USAF; Mary Ellen
    Payne, Esquire.
    Before POSCH, CADOTTE, and MENDELSON, Appellate Military
    Judges.
    Judge MENDELSON delivered the opinion of the court, in which Senior
    Judge POSCH and Judge CADOTTE joined.
    ________________________
    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 30.4.
    ________________________
    United States v. Apgar, No. ACM 40210
    MENDELSON, Judge:
    In accordance with Appellant’s pleas and pursuant to a plea agreement, a
    general court-martial comprised of a military judge sitting alone convicted Ap-
    pellant of one specification of aggravated assault with a deadly weapon and
    one specification of assault consummated by a battery, in violation of Article
    128, Uniform Code of Military Justice (UCMJ), 
    10 U.S.C. § 928
    ; and one spec-
    ification of violation of a lawful general order, in violation of Article 92, UCMJ,
    
    10 U.S.C. § 892.1
     The court-martial sentenced Appellant to a bad-conduct dis-
    charge, 12 months of confinement, forfeiture of all pay and allowances, and
    reduction to the grade of E-1. The convening authority took no action on the
    findings and approved the sentence in its entirety.
    Appellant personally raises a single issue on appeal, pursuant to United
    States v. Grostefon, 
    12 M.J. 431
     (C.M.A. 1982): whether trial counsel commit-
    ted prosecutorial misconduct in the sentencing argument. We find no error ma-
    terially prejudicial to Appellant’s substantial rights and affirm the findings
    and sentence.
    I. BACKGROUND
    During Appellant’s providence inquiry, Appellant described his use of the
    intoxicating substance dextromethorphan (DXM)2 in violation of a lawful gen-
    eral order; his assault with a deadly weapon upon victim DD; and his assault
    consummated by a battery upon victim BV. While explaining to the military
    judge how he committed the offenses, he apologized for his use of DXM and
    expressed regret concerning the assaults on the two servicemember victims,
    DD and BV:
    I first want to apologize to my unit. I also want to apologize to
    the Air Force and anyone else who was impacted by my use [of
    DXM]. I now understand there are multiple more healthy ways
    to cope and know there is no excuse for using DXM. I am very
    sorry I ever chose to use DXM as a coping mechanism.
    ....
    1Unless otherwise specified, all references to the UCMJ are to the Manual for Courts-
    Martial, United States (2019 ed.). Pursuant to the plea agreement, three specifications
    of assault consummated by a battery and one specification of assault consummated by
    a battery upon an intimate partner were withdrawn and dismissed without prejudice,
    with prejudice to ripen upon completion of appellate review.
    2   DXM is an over-the-counter medication used as a cough suppressant.
    2
    United States v. Apgar, No. ACM 40210
    . . . I regret my actions. I wish I could take them back, but I can’t.
    I do hope that by pleading guilty I can give [DD] some solace so
    he can move forward, and it helps him close this chapter in his
    life.
    ....
    . . . While I did intend to make physical contact with [BV], I do
    not know why [I] did, and I wish it never happened.
    [BV] has been my friend for years and I wish I could take back
    my actions that hurt her, but I can’t. Undoubtedly my actions
    caused tremendous fear for [BV] as well as [DD]. I hope that by
    pleading guilty, as with [DD], I can also give [BV] some solace so
    she can move forward and know she never has to speak [to] me
    again and close this chapter in her life.
    During presentencing proceedings, Appellant chose not to testify or provide
    an unsworn statement. In the Government’s sentencing argument, trial coun-
    sel commented on Appellant’s statements made during the providence inquiry,
    arguing that while Appellant apologized to the Air Force for using DXM, he
    never apologized to the assault victims DD and BV:
    During his [providence] inquiry, he told the court that he hopes
    the victims find solace. He hopes that they are able to find clo-
    sure in this. What you didn’t notice in that statement was he
    never apologized. He doesn’t say “I’m sorry.” But you can con-
    trast with what he said when he’s talking about DXM where he
    apologized to the Air Force. So he’s sorry to the Air Force for
    using cough medicine but not sorry to the people he attacked?
    Your Honor, a strong message needs to be sent to [Appellant].
    Trial defense counsel did not raise any objection to this portion of trial coun-
    sel’s sentencing argument. However, in the Defense’s sentencing argument,
    trial defense counsel argued that Appellant expressed remorse during his prov-
    idence inquiry: “In terms of remorse, [Appellant] expressed his remorse under
    oath in this very court, and hope for solace. Solace means comfort. That’s what
    he hopes for by pleading guilty.”
    II. DISCUSSION
    Appellant contends trial counsel’s sentencing argument was improper be-
    cause “[t]here was no proper foundation . . . that [Appellant] was not remorse-
    ful for his actions” and claims “[t]rial counsel’s commentary on [Appellant]’s
    3
    United States v. Apgar, No. ACM 40210
    remorse or lack thereof was unfair and inflammatory.”3 The Government con-
    cedes error, in that trial counsel “lacked the proper foundation to make the
    ‘lack-of-remorse toward the victims’ argument,” but maintains the error was
    not prejudicial. We find any error did not result in material prejudice to a sub-
    stantial right.
    A. Law
    The issue of “[i]mproper argument is a question of law that we review de
    novo.” United States v. Marsh, 
    70 M.J. 101
    , 104 (C.A.A.F. 2011) (citation omit-
    ted). However, if defense counsel does not object to a sentencing argument by
    trial counsel, we review the issue for plain error. 
    Id.
     (citing United States v.
    Erickson, 
    65 M.J. 221
    , 223 (C.A.A.F. 2007)). To establish plain error, an appel-
    lant “must prove the existence of error, that the error was plain or obvious, and
    that the error resulted in material prejudice to a substantial right.” 
    Id.
     at 106
    (citing Erickson, 
    65 M.J. at 223
    ). Because “all three prongs must be satisfied
    in order to find plain error, the failure to establish any one of the prongs is
    fatal to a plain error claim.” United States v. Bungert, 
    62 M.J. 346
    , 348
    (C.A.A.F. 2006).
    “The legal test for improper argument is whether the argument was erro-
    neous and whether it materially prejudiced the substantial rights of the ac-
    cused.” United States v. Frey, 
    73 M.J. 245
    , 248 (C.A.A.F. 2014) (quoting United
    States v. Baer, 
    53 M.J. 235
    , 237 (C.A.A.F. 2000)). Three factors “guide our de-
    termination of the prejudicial effect of improper argument: ‘(1) the severity of
    the misconduct, (2) the measures adopted to cure the misconduct, and (3) the
    weight of the evidence supporting the conviction[s].’” United States v. Sewell,
    
    76 M.J. 14
    , 18 (C.A.A.F. 2017) (alteration in original) (quoting United States v.
    Fletcher, 
    62 M.J. 175
    , 184 (C.A.A.F. 2005)). “In applying the Fletcher factors in
    the context of an allegedly improper sentencing argument, we consider
    whether trial counsel’s comments, taken as a whole, were so damaging that we
    cannot be confident that the appellant was sentenced on the basis of the evi-
    dence alone.” United States v. Halpin, 
    71 M.J. 477
    , 480 (C.A.A.F. 2013) (alter-
    ation, internal quotation marks, and citation omitted).
    “Trial counsel is entitled to argue the evidence of record, as well as all rea-
    sonable inferences fairly derived from such evidence.” Frey, 
    73 M.J. at 248
     (in-
    ternal quotation marks and citation omitted). “During sentencing argument,
    the trial counsel is at liberty to strike hard, but not foul, blows.” Halpin, 
    71 M.J. at 479
     (internal quotation marks and citation omitted). “[T]he argument
    3In Appellant’s assignments of error and reply briefs, appellate defense counsel re-
    peatedly refers to statements made in Appellant’s unsworn statement. However, Ap-
    pellant did not make an unsworn statement. The record is clear that Appellant’s state-
    ments were made during the providence inquiry.
    4
    United States v. Apgar, No. ACM 40210
    by a trial counsel must be viewed within the context of the entire court-mar-
    tial.” Baer, 
    53 M.J. at 238
    . “The focus of our inquiry should not be on words in
    isolation, but on the argument as viewed in context.” 
    Id.
     (internal quotation
    marks and citations omitted).
    When analyzing allegations of improper sentencing argument in a judge-
    alone forum, we presume a “military judge is able to distinguish between
    proper and improper sentencing arguments.” Erickson, 
    65 M.J. at 225
    .
    B. Analysis
    Because there was no objection during trial counsel’s sentencing argument,
    we analyze this issue under a plain error standard of review. Further, because
    the Government concedes error in that trial counsel “lacked the proper foun-
    dation to make the ‘lack-of-remorse toward the victims’ argument,” we will as-
    sume without deciding that the error was clear or obvious. However, we find
    that Appellant has failed to demonstrate any material prejudice.
    In testing for material prejudice, the first Fletcher factor considers the se-
    verity of the misconduct. 62 M.J. at 184. On this matter, we note that the “lack
    of a defense objection is some measure of the minimal impact of a prosecutor’s
    improper comment.” United States v. Gilley, 
    56 M.J. 113
    , 123 (C.A.A.F. 2001)
    (internal quotation marks and citation omitted). Here, we find that the com-
    ments were minor and relatively insignificant. The comments were not the cor-
    nerstone of trial counsel’s argument, as they constituted one paragraph out of
    13 pages of the transcribed argument. We also note the comments were made
    in the context of trial counsel urging the military judge to sentence Appellant
    to 30 months of confinement, where the plea agreement required the military
    judge to impose between 6 and 30 months of confinement. Ultimately, the mil-
    itary judge sentenced Appellant to 12 months of confinement, which is one in-
    dicator of the minimal impact of trial counsel’s comments.
    Regarding the second Fletcher factor—curative measures taken—no cura-
    tive instruction was necessary because of the judge-alone forum. We note that
    military judges are presumed to know and follow the law, absent clear evidence
    to the contrary. See United States v. Mason, 
    45 M.J. 483
    , 484 (C.A.A.F. 1997)
    (per curiam); see also Erickson, 
    65 M.J. at 225
     (noting the presumption that a
    military judge is able to distinguish between proper and improper sentencing
    arguments). Appellant has presented no evidence that the military judge in
    this case was unable to distinguish between proper and improper sentencing
    argument.
    As to the third Fletcher factor—the weight of the evidence supporting the
    sentence—we find this factor weighs heavily in the Government’s favor. The
    evidence in this case was strong and uncontested, as it came from Appellant’s
    own admissions to the military judge during his guilty plea inquiry and the
    5
    United States v. Apgar, No. ACM 40210
    stipulation of fact. Appellant admitted to assaulting two servicemembers, one
    with a deadly weapon, and to long-term abuse of an intoxicating substance. In
    accordance with the plea agreement, Appellant faced a maximum punishment
    that could have included a dishonorable discharge and 30 months of confine-
    ment. The adjudged sentence, which included a bad-conduct discharge and 12
    months of confinement, fell far short of Appellant’s maximum exposure. We
    find the facts and circumstances provide substantial justification to support
    the sentence, irrespective of trial counsel’s comments. We conclude that the
    weight of the evidence supports the adjudged sentence.
    In conclusion, we find that Appellant has failed to meet his burden to
    demonstrate that any error resulted in material prejudice to a substantial
    right. After considering trial counsel’s comments as a whole, we are confident
    that Appellant was sentenced based on the evidence alone. See Halpin, 
    71 M.J. at 480
    .
    III. CONCLUSION
    The findings and sentence as entered are correct in law and fact, and no error
    materially prejudicial to the substantial rights of Appellant occurred. Articles
    59(a) and 66(d), UCMJ, 
    10 U.S.C. §§ 859
    (a), 866(d). Accordingly, the findings
    and sentence are AFFIRMED.
    FOR THE COURT
    CAROL K. JOYCE
    Clerk of the Court
    6