U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM 40059
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UNITED STATES
Appellee
v.
Vanessa R. RIVAS
Staff Sergeant (E-5), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 7 March 2022
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Military Judge: Shad R. Kidd.
Sentence: Sentence adjudged on 4 February 2021 by GCM convened at
Joint Base San Antonio-Lackland, Texas. Sentence entered by military
judge on 4 March 2021: Bad-conduct discharge, confinement for 10
months, and reduction to E-1.
For Appellant: Major Megan E. Hoffman, USAF.
For Appellee: Lieutenant Colonel Matthew J. Neil, USAF; Captain Kris-
topher N. Houghton, USAF; Mary Ellen Payne, Esquire.
Before JOHNSON, ANNEXSTAD, and GOODWIN, Appellate Military
Judges.
Judge GOODWIN delivered the opinion of the court, in which Chief
Judge JOHNSON and Judge ANNEXSTAD joined.
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This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
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United States v. Rivas, No. ACM 40059
GOODWIN, Judge:
A military judge sitting as a general court-martial convicted Appellant, in
accordance with her pleas and pursuant to a plea agreement, of three specifi-
cations of assault consummated by battery upon a child in violation of Article
128, Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 928.1,2 The specifi-
cations involved offenses Appellant committed between on or about 1 March
2019 and 17 April 2019. The military judge sentenced Appellant to a bad-con-
duct discharge, confinement for ten months, and reduction to the grade of E-1.
The convening authority took no action on the findings or sentence. The
military judge signed an entry of judgment (EoJ) reflecting the findings and
sentence. Appellant raises a single issue before this court pursuant to United
States v. Grostefon,
12 M.J. 431 (C.M.A. 1982): whether her sentence is inap-
propriately severe.
Finding no error materially prejudicial to a substantial right of Appellant,
we affirm the findings and sentence.
I. BACKGROUND
Appellant was assigned to the 59th Dental Training Squadron, Joint Base
San Antonio-Lackland, Texas, where she befriended NM who had a six-year-
old daughter, EM. Later, Appellant and NM began dating and cohabitating.
Eventually, Appellant took on a parenting role with EM.
EM was diagnosed with attention deficit hyperactivity disorder (ADHD),
and she had a history of behavioral problems at school. On or about 15 April
2019, NM received a call from EM’s school reporting behavioral issues, includ-
ing that EM had bitten another child. Appellant picked EM up from school and
took her to NM’s home. Once home, Appellant and NM took EM to her room,
where NM spanked her. After the spanking, Appellant bit EM on her arm “to
show her what it felt like.” NM then left the room, leaving Appellant and EM
alone. Alone with EM, Appellant “lost her temper” and assaulted EM. Appel-
lant agreed that she pulled EM by her ponytail, dragged her some distance
across the floor, hit her on her sides and stomach, and kicked her between her
head and torso two or three times.
The following day, youth center employees noticed multiple injuries on EM,
including a scratch on her calf; red marks on her arm; a scratch on her neck;
1 Since all offenses were committed after 1 January 2019, all references to the UCMJ
are to the Manual for Courts-Martial, United States (2019 ed.).
2 In accordance with the terms of the plea agreement, the “on divers occasions” lan-
guage was stricken from Specifications 1 and 2 after announcement of sentence.
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United States v. Rivas, No. ACM 40059
bite marks on her arm; and a puffy, red mark on her neck. Suspecting abuse,
the employees reported the injuries to the local family advocacy program,
which in turn called the Texas Department of Family Protective Services. Also
on this day, Appellant’s co-workers overheard her speaking negatively about
EM, calling her a “little b[**]ch” and stating that she was going to “pick up the
little b[**]ch, pull her hair, and punch the s[**]t out of her.”
Appellant provided an interview to security forces investigators. After ini-
tially denying that she had disciplined EM, Appellant admitted that she had
become frustrated with EM, “lost control,” and caused some of her injuries.
II. DISCUSSION
Appellant argues on appeal that the length of confinement adjudged—ten
months—is inappropriately severe. We are not persuaded and accordingly
deny relief.
A. Law
This court reviews sentence appropriateness de novo. United States v.
Lane,
64 M.J. 1, 2 (C.A.A.F. 2006). We “may affirm only . . . the sentence or
such part or amount of the sentence, as [we find] correct in law and fact and
determine[ ], on the basis of the entire record, should be approved.” Article
66(d)(1), UCMJ,
10 U.S.C. § 866(d). “We assess sentence appropriateness by
considering the particular appellant, the nature and seriousness of the of-
fense[s], the appellant’s record of service, and all matters contained in the rec-
ord of trial.” United States v. Anderson,
67 M.J. 703, 705 (A.F. Ct. Crim. App.
2009) (citations omitted). Although we have broad discretion in determining
whether a particular sentence is appropriate, we are not authorized to engage
in exercises of clemency. United States v. Nerad,
69 M.J. 138, 146 (C.A.A.F.
2010).
B. Analysis
During sentencing, Appellant introduced personal photographs; evidence
of community service; multiple good character letters; copies of awards, deco-
rations, and coins received during her career; a psychotherapy treatment plan;
and an unsworn statement. In her unsworn statement, Appellant expressed
regret and remorse for her actions. In addition to matters in extenuation and
mitigation, evidence showed that Appellant violently assaulted a six-year-old
child over whom she had a position of trust and authority. Appellant used her
hands, feet, and teeth during the assaults. As a result of Appellant’s assaults,
EM suffered nonaccidental physical trauma. EM also suffered longer-term
emotional trauma requiring therapy. EM had trouble sleeping for about a year
after the assaults, expressed distress and fear of Appellant, and required a
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United States v. Rivas, No. ACM 40059
special education program for children with “emotional disturbance.” Appel-
lant’s adjudged confinement was ten months, but her plea agreement allowed
for up to 13 months. We note that Appellant’s plea agreement required no less
than a bad-conduct discharge. We further note that Appellant waived her right
to request clemency from the convening authority.
We have given individualized consideration to Appellant, the nature and
seriousness of the offenses, Appellant’s record of service, and all other matters
contained in the record of trial. We conclude that the sentence is not inappro-
priately severe.
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. Ar-
ticles 59 and 66(d), UCMJ,
10 U.S.C. §§ 859, 866(d). Accordingly, the findings
and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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