United States v. Torello ( 2022 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM S32691
________________________
UNITED STATES
Appellee
v.
Dante J. TORELLO
Senior Airman (E-4), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 15 August 2022
________________________
Military Judge: Matthew P. Stoffel.
Sentence: Sentence adjudged 3 February 2021 by SpCM convened at
Kadena Air Base, Japan. Sentence entered by military judge on 8 April
2021: Bad-conduct discharge, confinement for 4 months, and reduction
to E-1.
For Appellant: Major Jenna M. Arroyo, USAF; Major Theresa L. Hilton,
USAF.
For Appellee: Major John P. Patera, USAF; Major Brittany M. Speirs,
USAF; Mary Ellen Payne, Esquire.
Before KEY, ANNEXSTAD, and MEGINLEY, Appellate Military
Judges.
Judge MEGINLEY delivered the opinion of the court, in which Senior
Judge KEY and Judge ANNEXSTAD 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This is an unpublished opinion and, as such, does not serve as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. Torello, No. ACM S32691
MEGINLEY, Judge:
A special court-martial comprised of a military judge convicted Appellant,
in accordance with his pleas and pursuant to a plea agreement, of one specifi-
cation of indecent recording and one specification of indecent distribution of a
recording, both in violation of Article 120c, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 920c.1 The court-martial sentenced Appellant to a bad-
conduct discharge, confinement for four months, and reduction to E-1. The con-
vening authority approved the sentence.
Appellant raises two assignments of error: (1) whether trial counsel en-
gaged in prosecutorial misconduct by making improper sentencing arguments,
and (2) whether Appellant’s sentence is inappropriately severe. Finding no er-
ror that has materially prejudiced the substantial rights of Appellant, we af-
firm the findings and sentence.
I. BACKGROUND
Appellant entered active duty service in December 2016, and at the time of
his offenses, was stationed at Kadena Air Base, Japan. As part of a plea agree-
ment, Appellant entered into a stipulation of fact. The information provided in
the stipulation of fact and in Appellant’s providence inquiry forms the basis for
the following factual background.
In May 2019, Appellant met GK and they began a sexual relationship
shortly thereafter.2 On 2 August 2019, Senior Airman (SrA) SD held a birthday
party in his dorm room. Appellant, GK, and SrA IC were among the attendees
and each consumed a large amount of alcohol. At the end of the night, Appel-
lant, GK, and SrA IC made their way back to Appellant’s dorm room. The three
were on a couch, with GK lying across the laps of Appellant and SrA IC and
her head on Appellant’s lap. GK and Appellant began kissing and Appellant
recorded their kissing with his cell phone. Appellant then panned the camera
around the room and recorded SrA IC performing oral sex on GK. According to
the stipulation of fact, Appellant then utilized the Snapchat social media ap-
plication to distribute the recording to a “groupchat” of 17 Airmen, including
SrA IC.3 GK did not consent to Appellant recording SrA IC performing oral sex
1 Unless otherwise noted, references to the UCMJ are to the Manual for Courts-Mar-
tial, United States (2019 ed.).
2 GK was an active duty member at the time.
3 According to the stipulation of fact: “Snapchat is a social media platform in which
individuals are able to take pictures and videos and send them to other Snapchat users.
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United States v. Torello, No. ACM S32691
on her. During his providence inquiry, Appellant informed the military judge
that due to his level of intoxication, he did not remember the specifics of the
video; however, he acknowledged he made a recording and distributed a re-
cording of GK’s private area without her consent, under circumstances in
which GK had a reasonable expectation of privacy.
As part of its investigation, agents from the Air Force Office of Special In-
vestigations (AFOSI) conducted cell phone extractions from the phones of at
least 19 Airmen, including SrA IC, who may have received the video. Agents
also conducted a search of Appellant’s phone and sent his phone to the DoD
Crime Center Cyber Forensics Laboratory for analysis; the video in question
was never recovered, nor was there any indication it would ever be recovered.
According to the stipulation of fact, several of the Airmen who received the
video would have testified they saw the video sent by Appellant. One of those
Airmen, SrA AW, would have testified she heard GK tell Appellant “don’t get
my face in it,” to which Appellant told her, “chill girl, I’m not recording.” SrA
AW also would have testified that GK’s face was visible in the video. Another
Airman, SrA CF, would have testified that while recording the video, Appellant
appeared to be smiling and laughing.
Furthermore, Appellant stipulated that SrA AW would have testified that
Appellant “told her that he was going to lie to [GK] about the recording of the
video in question.” Specifically, SrA AW would have testified that Appellant
told her that he planned to tell GK that “SrA [IC] accidently answered a
FaceTime call during the sexual activity.”4 Appellant also acknowledged that
when AFOSI asked whether he had recorded any videos on the night in ques-
tion, Appellant replied, “Not that I can honestly recall.” However, Appellant
also stipulated that other Airmen would have testified that he admitted to
them that he had recorded a video on the night in question. GK became aware
of the video 24 to 48 hours after it was sent out, when SrA AW and SrA CF told
her what they viewed.
Appellant’s case was initially referred to a general court-martial which, in
addition to the charge and its two specifications before this court, included a
charge and two specifications of sexual assault in violation of Article 120,
UCMJ, 10 U.S.C. § 920. However, pursuant to Appellant’s plea agreement, the
The videos/pictures automatically delete after the recipients view them.” The stipula-
tion further states: “A Snapchat groupchat is where multiple individuals are part of
the same conversation group, and can send images and videos to multiple individuals
simultaneously and communicate back and forth in the same message thread.” SrA IC
created this groupchat, which was entitled, “Alcoholics Anonymous.” Appellant and
GK did not know all the members in the groupchat.
4 According to the stipulation of fact, FaceTime “is a video chat application.”
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United States v. Torello, No. ACM S32691
convening authority agreed to withdraw and dismiss with prejudice the sexual
assault charge and its two specifications. Further, the charge and its two spec-
ifications of indecent recording were also withdrawn from the general court-
martial and referred to a special court-martial. There was no evidence from
the record before this court that GK had been sexually assaulted.
II. DISCUSSION
A. Improper Argument
1. Additional Background
Appellant asserts trial counsel committed prosecutorial misconduct when
“she made arguments that were not reasonable inferences from the facts, mis-
characterized the evidence, and argued alleged victim impact which was too
attenuated to be attributed to [Appellant].” In support of his assignment of
error, Appellant specifically asserts that trial counsel claimed that:
(1) [Appellant] recorded [SrA IC] violating [GK]; (2) [Appellant]
demonstrated a lack of rehabilitative potential because of his
lack of remorse; and, (3) Kadena [AB] was the center of a spider
web, such that wherever [GK] traveled to in the world, “she
won’t be free from the spider web that [Appellant]’s actions cre-
ated that night.”
Appellant argues he was materially prejudiced by trial counsel’s improper ar-
guments, given the “inflammatory nature of trial counsel’s misconduct, and
her blatant mischaracterization of the evidence at every turn,” which Appel-
lant claims “casts significant doubt on whether the sentence adjudged was
based on the evidence alone.”
In presentencing, GK provided written and oral unsworn statements to the
court, which were consistent. In court, GK told the military judge, “What hap-
pened to me hurt when it happened and it still hurts today. After the incident,
I hated going out in public. I didn’t know who had seen these images of me and
thought that everyone had seen them and was talking behind my back.” GK
also described being “distracted and worried” at work, and how hard it was to
“cope with” Appellant’s actions. She also stated she felt “isolated and alone,”
and since the incident, “had trouble trusting people in [her] life.”
Trial counsel’s sentencing argument spanned just under four transcript
pages. At issue are the following parts of trial counsel’s argument. The first
regards trial counsel’s reference to GK being “violated,” when trial counsel ar-
gued,
While [GK] lay in his lap, drunk, her face exposed, her vagina
exposed, [Appellant] pulled out his smart phone and recorded,
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United States v. Torello, No. ACM S32691
selfie style, while a fellow Airman violated her. He shattered her
trust again, when instead of deleting that recording of her being
violated, he took it and he sent it to 17 other people. . . .
....
. . . Those 17 Airmen who received that video of her being vio-
lated, sooner or later they’re going to leave this place.
(Emphasis added). Appellant argues trial counsel mischaracterized the evi-
dence in order to portray Appellant “as a person who stood back, watched, and
recorded as [SrA IC] sexually assaulted [GK].”
Appellant next asserts that trial counsel committed misconduct by, as Ap-
pellant characterizes it, arguing that Appellant “demonstrated a lack of reha-
bilitative potential through his lack of remorse.” In relevant part, trial counsel
stated during sentencing argument:
Although he stood before you today and he pled guilty to his
crimes, up until this point he’s failed to take accountability for
his actions. He lied, and he lied multiple times. He did not take
accountability, and so we must forces [sic] him to take account-
ability. He didn’t take accountability the night of the incident.
He told the victim, who was drunk laying in his lap, that he
wasn’t recording her, and that was lie number one. He didn’t
take accountability when he spoke to the victim after the fact.
He told [SrA AW] that they were going to lie to her and say that
this was an accident, and that’s what he did. . . . He told OSI
that he did not recall any videos that were recorded. He stated
this despite the fact that he was the one who recorded one of the
videos.
Appellant believes the evidence adduced at his court-martial “amply demon-
strated” he was remorseful for his offenses.
Finally, Appellant takes issue with this portion of trial counsel’s argument:
Kadena [AB] is like the center of a spider web. Those 17 Airmen
who received that video of her being violated, sooner or later
they’re going to leave this place. And as they scatter to bases
around the United States, or bases around the world, they’re go-
ing to extend this string of the spider web. As long as [GK] runs
a risk of running into one of those Airmen that saw that video,
wherever she may go in the world, she won’t be free from the
spider web that [Appellant]’s actions created on that night.
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United States v. Torello, No. ACM S32691
Trial defense counsel did not object during trial counsel’s sentencing argu-
ment. Having thoroughly reviewed the record, we are not persuaded by Appel-
lant’s arguments and find no relief is warranted.
2. 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 the defense does not object to a sentencing argument by trial
counsel, we review the issue for plain error. Id. (citing United States v. Erick-
son, 65 M.J. 221, 223 (C.A.A.F. 2007)). To establish plain error, an appellant
“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
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. (quoting United
States v. Young, 470 U.S. 1, 16 (1985)).
“[E]ither party may comment on properly admitted unsworn victim state-
ments” during presentencing arguments. United States v. Tyler, 81 M.J. 108,
113 (C.A.A.F. 2021). However, “a victim impact statement under [Rule for
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United States v. Torello, No. ACM S32691
Courts-Martial (R.C.M.)] 1001[(c)] does not allow a never-ending chain of
causes and effects to be relayed to the sentencing authority.” United States v.
King, ACM 39583, 2021 CCA LEXIS 415, at *136 (A.F. Ct. Crim. App. 16 Aug.
2021) (unpub. op.) (internal quotation marks and citation omitted), rev.
granted, 2022 CAAF LEXIS 227 (C.A.A.F. 22 Mar. 2022).5
3. Analysis
Because there was no objection by the Defense during trial counsel’s argu-
ment, we analyze this issue under a plain error standard of review. We do not
find error with trial counsel’s comments related to Appellant’s lack of rehabil-
itative potential or his lack of remorse, nor do we find error with trial counsel’s
“spider web” analogy. We do find error with trial counsel’s use of the word “vi-
olated.” However, for reasons explained below, we find that Appellant has
failed to establish the second and third prongs to this assignment of error—
plain or obvious error resulting in material prejudice to a substantial right.
Regarding Appellant’s rehabilitative potential, Appellant claims that de-
fense evidence showcased Appellant’s “demonstrated remorse amongst his
peers, strong work ethic and high character in the face of a pending court-mar-
tial”—and that trial counsel “deliberately mischaracterized the evidence.” We
disagree. Trial counsel was free to argue the evidence of the record and, with
respect to Appellant’s lack of rehabilitative potential through any perceived
lack of remorse, trial counsel highlighted Appellant’s behavior in the immedi-
ate aftermath of his crime—behavior from which reasonable inferences could
be made that Appellant lacked remorse and avoided accountability.
Regarding Appellant’s claim of prosecutorial misconduct regarding trial
counsel’s “spider web” comments, we find no error. GK was not part of the
“groupchat” and did not know all of its members; thus, she did not know eve-
ryone who received the videos of her at issue. Trial counsel’s articulation that
those Airmen who watched the videos involving GK would essentially be tak-
ing the knowledge and memory of what they viewed with them when they left
Kadena AB was a reasonable statement. Assuming GK were to stay in the Air
Force, she would always encounter the possibility that a fellow Airman would
recognize her from the video Appellant made and distributed. In other words,
reasonable inferences could be made from GK’s statements that she would al-
ways be exposed and vulnerable to Appellant’s crimes, no matter where she
went; trial counsel was free to argue these reasonable inferences. We therefore
5 Previously, the rules regarding a victim’s right to be reasonably heard were contained
in R.C.M. 1001A, Manual for Courts-Martial, United States (2016 ed.). Those rules are
now contained in R.C.M. 1001(c). See 2019 MCM, App. 15, at A15-18 (“R.C.M. 1001(c)
is new and incorporates R.C.M. 1001A of the MCM (2016 edition).”).
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United States v. Torello, No. ACM S32691
conclude Appellant has not demonstrated any error in trial counsel’s argu-
ment, let alone plain or obvious error.
We agree with Appellant that a fair reading of trial counsel’s argument
supports the conclusion that trial counsel was arguing that GK had been sex-
ually assaulted by SrA IC, despite the fact that there was no evidence of such
before the court. We find the insinuation that Appellant allowed a sexual as-
sault to occur on GK was not supported by the record, and therefore, we find
error with this portion of trial counsel’s argument.
Although we find error with Appellant’s first claim as to trial counsel’s ref-
erence to a sexual assault and that GK was “violated”—and even if we found
error with the Appellant’s second and third claims (regarding Appellant’s lack
of rehabilitative potential and comments related to the “spider web,” respec-
tively)—Appellant has failed to demonstrate any material prejudice, or that
the error substantially influenced his adjudged sentence. See United States v.
Barker, 77 M.J. 377, 384 (C.A.A.F. 2018) (citation omitted). In doing so, we
consider the three Fletcher factors. 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 argument.” See United States v. Gilley, 56 M.J. 113, 123 (C.A.A.F.
2001) (internal quotation marks and citation omitted). Based on the record, we
would find that the comments with respect to the use of the word “violated”
were significant, as the comments sought to portray Appellant was not inter-
vening to stop a sexual assault, if not outright encouraging the commission of
such an offense; we would find the other comments not as severe.
The second factor—the measures adopted to cure this misconduct—does
not add much to the analysis, as this was a judge-alone sentencing case. Alt-
hough the military judge listened to trial counsel’s argument without interrup-
tion and did not make any comment regarding trial counsel’s argument, he had
no obligation to do so. See United States v. Erickson, 65 M.J. 221, 225 (C.A.A.F.
2007) (citations omitted). Appellant argues that “[n]o measures were adopted
by the court to cure trial counsel’s misconduct, which implies that the military
judge relied on trial counsel’s improper arguments when deciding on a sen-
tence.” However, “[m]ilitary judges are presumed to know the law and to follow
it absent clear evidence to the contrary.” Id. (citation omitted). We will pre-
sume that the military judge was able to distinguish between proper and im-
proper sentencing arguments. Further, Appellant failed to provide any evi-
dence to rebut the presumption that the military judge followed the law and
disregarded any improper sentencing argument, nor is there anything in the
record indicating the military judge sentenced Appellant for the withdrawn
and dismissed Article 120, UCMJ, charge and its specifications.
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United States v. Torello, No. ACM S32691
As to the third Fletcher factor, the weight of the evidence supporting the
sentence, 62 M.J. at 184, we find this factor weighs in the Government’s favor.
The evidence in this case, primarily consisting of the stipulation and Appel-
lant’s providence inquiry, was strong and virtually uncontested. We find the
facts and circumstances provide substantial justification to support the sen-
tence, irrespective of trial counsel’s argument. We conclude that the weight of
the evidence supports the adjudged sentence. In conclusion, we find that Ap-
pellant has failed to meet his burden to demonstrate plain error, and after con-
sidering 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.
B. Sentence Severity
1. Additional Background
As part of Appellant’s plea agreement, the convening authority agreed to
refer Appellant’s case to a special court-marital, thereby, inter alia, limiting
Appellant’s term of confinement to 12 months and removing the possibility of
a dishonorable discharge; there were no other limitations on the maximum
punishment available.6 Appellant now argues his sentence of four months’ con-
finement and a bad-conduct discharge is “inappropriately severe given the na-
ture of the offense, the matters offered in mitigation and extenuation, and [Ap-
pellant]’s demonstrated rehabilitative potential.” Much of Appellant’s argu-
ment focuses on the fact that he agreed to plead guilty, that his crimes were “a
momentary lapse in judgment, which occurred when he was intoxicated,” and
that he saved the Government time, effort, and expense by pleading guilty.
Appellant further notes that by pleading guilty, he essentially spared GK from
having to testify.
As part of his presentencing matters, Appellant presented 17 character let-
ters, including several letters from officers and senior enlisted leaders. Appel-
lant also presented numerous certificates, awards and citations, and other mis-
cellaneous documents. Finally, Appellant presented the military judge an oral
unsworn statement in question-and-answer format with trial defense counsel,
as well as a lengthy written unsworn statement, in which he apologized to GK.
6 For his offense of indecent recording, Appellant received two months’ confinement.
For his offense of indecent distribution of a recording, Appellant received four months’
confinement. For both offenses, Appellant agreed to a confinement range between two
months and one year, with the terms of confinement to run concurrently. There were
no other limitations as to the sentence that could be adjudged.
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United States v. Torello, No. ACM S32691
2. Law and Analysis
We review issues of sentence appropriateness de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). Our authority to determine sentence appro-
priateness, “which reflects the unique history and attributes of the military
justice system, includes but is not limited to considerations of uniformity and
evenhandedness of sentencing decisions.” United States v. Sothen, 54 M.J. 294,
296 (C.A.A.F. 2001) (citations omitted). We may affirm only as much of the
sentence as we find correct in law and fact and determine should be approved
on the basis of the entire record. Article 66(d)(1), UCMJ, 10 U.S.C. § 866(d)(1).
“We assess sentence appropriateness by considering the particular appellant,
the nature and seriousness of the offense[s], the appellant’s record of service,
and all matters contained in the record of trial.” United States v. Anderson, 67
M.J. 703, 705 (A.F. Ct. Crim. App. 2009) (per curiam) (citations omitted). Alt-
hough we have discretion to determine whether a sentence is appropriate, we
have no power to grant mercy. United States v. Nerad, 69 M.J. 138, 146
(C.A.A.F. 2010) (citation omitted).
Appellant had been in the Air Force for less than three years at the time
he committed the offenses at issue; after those crimes, it took the Government
18 months to prosecute Appellant. The court acknowledges Appellant pre-
sented a strong mitigation case, and the Government on appeal concedes as
much. We also recognize the role alcohol played in his crimes. However, we
cannot disregard the matter in aggravation that Appellant distributed the
video at issue to at least 17 people on a social media application. Appellant’s
actions, in the digital age, risked the possibility of an unending exploitation of
GK insofar as the video may still exist or individuals may remember its con-
tents.7 We also cannot discount the humiliation and embarrassment GK was
subjected to by Appellant’s actions. Finally, Appellant faced up to 12 months
in confinement, yet received only 4 months’ confinement for his crimes. We are
confident the military judge gave Appellant’s mitigation and extenuation mat-
ters the due consideration they warranted.
We have considered Appellant, the nature and seriousness of his convicted
offenses, and all matters contained in the record of trial, to include all matters
Appellant submitted in his case in extenuation, mitigation, and clemency. We
conclude the adjudged sentence, including four months of confinement and a
bad-conduct discharge, is not inappropriately severe.
7 The court acknowledges that no copy of any video from the night in question was ever
recovered.
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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(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the find-
ings and the sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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