United States v. Ramirez ( 2017 )


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  •          U NITED S TATES N AVY –M ARINE C ORPS
    C OURT OF C RIMINAL A PPEALS
    _________________________
    No. 201600139
    _________________________
    UNITED STATES OF AMERICA
    Appellee
    v.
    BENJAMIN A. RAMIREZ
    Lance Corporal (E-3), U.S. Marine Corps
    Appellant
    _________________________
    Appeal from the United States Navy-Marine Corps Trial Judiciary
    Military Judge: Lieutenant Colonel Elizabeth Harvey, USMC.
    Convening Authority: Commanding General, First Marines
    Logistics Group, Camp Pendleton, California.
    Staff Judge Advocate’s Recommendation: Lieutenant Colonel
    Thomas B. Merritt, Jr., USMC.
    For Appellant: Lieutenant Jacob Meusch, JAGC, USN.
    For Appellee: Lieutenant Taurean K. Brown, JAGC, USN; Brian K.
    Keller, Esq.
    _________________________
    Decided 27 July 2017
    _________________________
    Before MARKS, RUGH, and JONES, Appellate Military Judges
    _________________________
    This opinion does not serve as binding precedent, but may be cited
    as persuasive authority under NMCCA Rule of Practice and
    Procedure 18.2.
    _________________________
    RUGH, Judge:
    A panel of members with enlisted representation sitting as a general
    court-martial convicted the appellant, contrary to his pleas, of two
    specifications of rape in violation of Article 120, Uniform Code of Military
    Justice (UCMJ), 
    10 U.S.C. § 920
     (2012). The members sentenced the
    appellant to 10 years’ confinement, reduction to pay grade E-1, forfeiture of
    all pay and allowances, and a dishonorable discharge. The convening
    United States v. Ramirez, No. 201600139
    authority approved the adjudged sentence and, except for the punitive
    discharge, ordered the sentence executed.
    The appellant now asserts seven assignments of error (AOE): (1) that the
    evidence of the appellant’s conviction to rape by unlawful force was legally
    and factually insufficient; (2) that the evidence of the appellant’s conviction
    as an aider and abettor to rape was legally and factually insufficient; (3) that
    the military judge’s manner of instructing the members regarding principal
    liability was plain error; (4) that the military judge’s denial of the appellant’s
    request for the expert assistance of a forensic psychologist, a clinical
    psychologist, and a forensic toxicologist was an abuse of discretion; (5) that
    the trial counsel made improper argument to the members; (6) that the trial
    defense counsel was ineffective; and (7) that the appellant’s sentence was
    inappropriately severe and highly disparate from that of his co-offender.
    We agree with the appellant’s second AOE, set aside the finding of guilty
    to Specification 3 of the Charge, and reassess the sentence below. The
    appellant’s third AOE is rendered moot. Otherwise, we find no error
    materially prejudicial to the appellant’s substantial rights and affirm. Arts.
    59(a) and 66(c), UCMJ.
    I. BACKGROUND
    While separately visiting Los Angeles over the 2014 Valentine’s Day
    weekend, the appellant, Lance Corporal (LCpl) Samuel Arroyo, and LCpl P
    met up for shopping, drinking, and dancing. Afterwards, they returned to
    LCpl Arroyo’s family home where the trio quibbled over sleeping
    arrangements between two guest beds—one larger than the other—available
    to the three of them in the guest room. They finally settled on the appellant
    and LCpl P sleeping in the larger bed while LCpl Arroyo took the smaller
    bed.
    Later that night, LCpl P woke briefly when LCpl Arroyo climbed into the
    larger bed next to her. She then fell back asleep and awoke a second time
    when LCpl Arroyo attempted to push open her legs. The appellant’s arm was
    now across her chest holding her down.
    LCpl P resisted LCpl Arroyo and called out “no.” In response, LCpl Arroyo
    became more aggressive, removing her pants, and penetrating LCpl P with
    his tongue and fingers. At the same time, the appellant continued to hold
    LCpl P down while repeatedly saying, “calm down.”1 Shortly, LCpl Arroyo
    stopped, returned to his bed, and LCpl P curled up into a ball.
    Q [trial counsel]: Why did you do that?
    1   Record at 337.
    2
    United States v. Ramirez, No. 201600139
    A [LCpl P]: I was tired, I couldn’t believe it. I mean, it just –
    struggling, crying, I just wanted to disappear.2
    LCpl P then fell asleep. She awoke to the appellant on top of her
    penetrating her with his penis. LCpl P attempted to push him off but couldn’t
    because of his size—the appellant was “a very large person.”3 During the
    assault, he moved her into several positions, including on top of him, by
    grabbing her and putting her “however he wanted.”4 As he continued, the
    appellant told LCpl P that he liked her and that he thought she was pretty.
    When she tried to pull away from him, he repeated “don’t pull away, don’t
    pull away.”5 After he was done, he told LCpl P he was sorry. LCpl P then
    cried herself to sleep. She rose early the next morning, gathered her things,
    and left.
    After LCpl P left, LCpl Arroyo texted her and the appellant, asking “hey,
    are you alive?”6 LCpl P responded, “F[***] you guys, don’t ever talk to me
    again.”7 Later that day, the appellant responded, texting her:
    Hey ..i wanted to apologize for last night, i know it probably
    doesn’t mean much now but i am really sorry i fucked up and
    there’s no excuse i just hope that you’ll be able to forgive me.8
    A month later LCpl P reported the assault. At the behest of Naval
    Criminal Investigative Service investigators, she reengaged the appellant on
    a pretext over text message. The appellant again apologized, texting:
    Oh…i am sorry as f[***] about that i know i f[***]ed up rly bad
    and i don’t know how to make it up…”9
    He then professed a lack of memory about what happened that night.
    Subsequently, LCpl Arroyo and the government negotiated an agreement
    in which LCpl Arroyo agreed to testify at the appellant’s court-martial. In
    exchange for his cooperation, LCpl Arroyo received testimonial immunity,
    and charges against him alleging assaults consummated by battery were
    2   
    Id. at 340
    .
    3   
    Id. at 341
    .
    4   
    Id. at 342
    .
    5   
    Id. at 341
    .
    6
    
    Id. at 461
    .
    7   Prosecution Exhibit (PE) 1 at 3.
    8   
    Id.
     ([sic] throughout).
    9   PE 2 at 3 ([sic] throughout).
    3
    United States v. Ramirez, No. 201600139
    referred to special court-martial in lieu of the sex offenses previously referred
    to general court-martial.
    At trial, LCpl Arroyo testified that he originally climbed into bed with
    LCpl P as she slept so that he could kiss her. However, she was unresponsive
    until he placed his hand on her crotch; at which point, she awoke and began
    resisting him.
    Q: Did you pull her pants off?
    A [LCpl Arroyo]: Yes. She was fighting me. She was resisting. I
    had to use a little bit of strength to actually do what I was
    trying to do.10
    As LCpl Arroyo attempted to remove LCpl P’s pants so that he could perform
    oral sex on her, he noticed the appellant was now awake. The appellant’s
    body was over LCpl P, his hand was on her shoulder holding her down, and
    he appeared to be kissing her.
    Q: And what was [the appellant] doing at this time?
    A: At this point, I mean, I believe he was still kissing her.
    Basically, in the same position that he was when I started
    trying – I started – I attempted – I first attempted to perform
    oral sex on her. From what I remember, she now was up.
    Q: What did you do then?
    A: Well, as I was trying to perform oral sex, [the appellant] was
    slowly pushing me. Pushing me down off the bed. It wasn’t
    necessarily like a shove or a kick or something but he was
    giving me nudges to where, basically, what I perceived it as,
    hinting me to just back off. So when I finally got the hint, I
    jumped off the bed down towards the foot of the bed, I laid
    down and fell asleep.11
    That next day, the appellant drove LCpl Arroyo from the Los Angeles,
    California, area back to Twentynine Palms, California, where they were
    stationed together. A few minutes into the drive the appellant asked, “How
    f[***]ed are we?”12 LCpl Arroyo responded, “I don’t know.”13 They made the
    rest of the trip in silence.
    10   Record at 458.
    11   
    Id. at 459
    .
    12   
    Id. at 461
    .
    13   
    Id.
    4
    United States v. Ramirez, No. 201600139
    II. DISCUSSION
    A. Legal and factual sufficiency – rape by unlawful force
    The appellant first asserts that his conviction to rape by unlawful force—
    involving the vaginal/penile penetration of LCpl P by him after LCpl Arroyo
    returned to the smaller bed—was legally and factually insufficient because
    he only used such force as was “sufficient to position” LCpl P14 and because
    LCpl P’s memory and her ability to observe were unreliable.
    We review questions of legal and factual sufficiency de novo. Art. 66(c),
    UCMJ; United States v. Washington, 
    57 M.J. 394
    , 399 (C.A.A.F. 2002). The
    test for legal sufficiency is “whether, considering the evidence in the light
    most favorable to the prosecution, any reasonable fact-finder could have
    found all the essential elements beyond a reasonable doubt.” United States v.
    Day, 
    66 M.J. 172
    , 173-74 (C.A.A.F. 2008) (citing United States v. Turner, 
    25 M.J. 324
    , 324 (C.M.A. 1987)). In applying this test, “we are bound to draw
    every reasonable inference from the evidence of record in favor of the
    prosecution.” United States v. Barner, 
    56 M.J. 131
    , 134 (C.A.A.F. 2001)
    (citations omitted).
    The test for factual sufficiency is whether “after weighing all the evidence
    in the record of trial and recognizing that we did not see or hear the
    witnesses as did the trial court, this court is convinced of the appellant’s guilt
    beyond a reasonable doubt.” United States v. Rankin, 
    63 M.J. 552
    , 557 (N-M.
    Ct. Crim. App. 2006) (citing Turner, 25 M.J. at 325 and Art. 66(c), UCMJ),
    aff’d on other grounds, 
    64 M.J. 348
     (C.A.A.F. 2007). In conducting this unique
    appellate role, we take “a fresh, impartial look at the evidence,” applying
    “neither a presumption of innocence nor a presumption of guilt” to “make
    [our] own independent determination as to whether the evidence constitutes
    proof of each required element beyond a reasonable doubt.” Washington, 57
    M.J. at 399.
    Article 120, UCMJ, provides, “(a) Rape. Any person subject to this chapter
    who commits a sexual act upon another person by—(1) using unlawful force
    against that other person. . . . is guilty of rape and shall be punished as a
    court-martial may direct.” 
    10 U.S.C. § 920
    (a). “Force” is: “(A) the use of a
    weapon; (B) the use of such physical strength or violence as is sufficient to
    overcome, restrain, or injure a person; or (C) inflicting physical harm
    sufficient to coerce or compel submission by the victim.” 
    10 U.S.C. § 920
    (g)(5).
    “Unlawful force” is defined as “an act of force done without legal justification
    or excuse.” 
    10 U.S.C. § 920
    (g)(6).
    14   Appellant’s Brief of 17 Aug 2016 at 30.
    5
    United States v. Ramirez, No. 201600139
    For a charge of rape by unlawful force, the government must prove
    beyond reasonable doubt that the accused used a weapon; used such physical
    strength or violence as is sufficient to overcome, restrain, or injure a person;
    or inflicted physical harm sufficient to coerce or compel submission by the
    victim, and that those acts were “done without legal justification or excuse.”
    
    10 U.S.C. § 920
    (g)(5)–(6).
    Here, the evidence establishes the required degree of force by the
    appellant to overcome and restrain LCpl P. LCpl P testified that she
    attempted to push the appellant off of her but was unable to because of his
    size. Likewise, he grabbed and moved LCpl P into several sexual positions
    despite her actively struggling. When she did escape him and attempted to
    turn away from him, he held her, re-penetrated her, and stated, “I told you
    not to pull away.”15 We agree with the appellant that he did not “punch[] her,
    slap[] her, chok[e] her, or apply[] pressure to the point that caused her
    physical pain or bruising.”16 But those acts are not the universe of behaviors
    that may meet the requirements of the statute. Other acts of force, as long as
    they are “sufficient to overcome, restrain, or injure,” can suffice.
    In that regard, this case is distinguishable from United States v. Thomas,
    
    74 M.J. 563
    , 567 (N-M. Ct. Crim. App. 2014), in which we held that, “simply
    being on top of the other person during a sexual act, without anything more,
    is not enough” to prove the use of such physical strength or violence as was
    sufficient to overcome, restrain, or injure. Here, LCpl P’s reliable testimony
    and LCpl Arroyo’s corroborating account demonstrate that the appellant did
    more than simply “be” on top. Likewise, the appellant’s highly incriminating
    text messages and statements after the fact strongly cut against any
    assertion that LCpl P consented to the acts alleged.17 As a result, there is
    15   Record at 341.
    16   Appellant’s Brief at 30-31.
    17  This is also consistent with this and other military courts’ prior analysis. See
    United States v. Parker, 
    75 M.J. 603
    , 610 (N-M. Ct. Crim. App. 2016) (holding that,
    where the force used to commit the sexual act was limited to rolling the victim over
    onto his back and exposing his penis, evidence of force sufficient to overcome the
    person was absent); United States v. Hutchinson, No. 201400022, 
    2015 CCA LEXIS 71
     at *12, unpublished op. (N-M. Ct. Crim. App. 4 Mar 2015) (affirming a conviction
    for rape using unlawful force under circumstances in which the appellant forcibly
    flipped the victim over, put his hand on her neck so that she could not breathe,
    removed her pants while the victim protested, and then penetrated her vagina with
    his penis while choking her as she told him “no”), rev. denied, 
    75 M.J. 42
     (C.A.A.F.
    2015); and United States v. Evans, No. 38651, 
    2015 CCA LEXIS 445
     at *6,
    unpublished op. (A. F. Ct. Crim. App. 22 Oct 2015) (affirming a conviction for rape
    using unlawful force under circumstances in which the appellant grabbed the victim
    6
    United States v. Ramirez, No. 201600139
    sufficient evidence for the trier of fact and for us to conclude beyond
    reasonable doubt that the appellant raped LCpl P using unlawful force.
    B. Legal and factual sufficiency – liability as aider and abettor
    Next, the appellant asserts that his second conviction for rape by
    unlawful force—as an accomplice when LCpl Arroyo orally and digitally
    penetrated LCpl P—was legally and factually insufficient because the
    appellant did not share in LCpl Arroyo’s criminal purpose or design.
    Article 77(1), UCMJ, provides that a person is liable as a principal if the
    person commits a punishable offense or “aids, abets, counsels, commands, or
    procures its commission[.]” Aiding and abetting requires proof of the
    following: “(1) the specific intent to facilitate the commission of a crime by
    another; (2) guilty knowledge on the part of the accused; (3) that an offense
    was being committed by someone; and (4) that the accused assisted or
    participated in the commission of the offense.” United States v. Pritchett, 
    31 M.J. 213
    , 217 (C.M.A. 1990) (citations omitted).
    As the Court of Appeals for the Armed Forces notes, “[o]ur case law
    follows Judge Learned Hand’s interpretation of aiding and abetting, under
    which it is necessary that the accused ‘in some sort associate himself with the
    venture, that he participate in it as in something that he wishes to bring
    about, [and] that he seek by his action to make it succeed.’” 
    Id.
     (quoting
    United States v. Peoni, 
    100 F.2d 401
    , 402 (2d Cir. 1938)).
    Here, we are tasked with determining whether the appellant specifically
    intended to facilitate the rape of LCpl P by LCpl Arroyo. Or, in Judge Hand’s
    phraseology, did the appellant associate himself with LCpl Arroyo’s rape of
    LCpl P; did he participate in the rape as something he wished to bring about;
    and by holding LCpl P down did he seek to make LCpl Arroyo’s rape succeed?
    On these final two points, we the find the proof fails.
    Within the record, there is little direct evidence of the appellant’s intent
    regarding LCpl Arroyo’s rape of LCpl P. At trial, there was no indication that
    the appellant and LCpl Arroyo communicated prior to the assault regarding
    their sexual desires for LCpl P. When LCpl Arroyo convinced LCpl P to spend
    the night at his parents’ house, there was no accompanying evidence that the
    appellant knew or expected LCpl Arroyo to engage LCpl P in sexual activity
    that night. And, indeed, it was then arranged that LCpl Arroyo would sleep
    on the separate, single bed alone wearing the same clothes he wore that day.
    The guest room was dark that night, and it was difficult to see. As such, there
    was no sign that the appellant and LCpl Arroyo communicated, either
    by the arm, put his hands around her neck, dragged her to some bushes, and pulled
    her to the ground), rev. denied, 
    75 M.J. 288
     (C.A.A.F. 2016).
    7
    United States v. Ramirez, No. 201600139
    verbally or non-verbally, in the immediate lead-up to LCpl Arroyo first
    forcing himself on LCpl P. The appellant did repeatedly utter “calm down”
    during LCpl Arroyo’s assault, but it is unclear whom he intended to calm by
    his statement.
    Regardless, specific intent may be inferred from the circumstances of the
    particular case. United States v. Mitchell, 
    66 M.J. 176
    , 178 (C.A.A.F. 2008).
    In this case, the simultaneous occurrence of LCpl Arroyo’s attack and the
    appellant’s act of holding the victim down by her shoulders may be
    circumstantial evidence that the appellant intended to help LCpl Arroyo rape
    LCpl P. However, any indication that he held her down pursuant to a
    “concert of purpose”18 is offset by the appellant’s sinister act of pushing LCpl
    Arroyo away for the apparent reason of keeping the victim all to himself.
    Left with contrary circumstantial evidence of the appellant’s intent
    pointing toward different possible conclusions—that he intended to aid LCpl
    Arroyo and that he intended to stop LCpl Arroyo—we must find that the
    evidence fails to prove beyond reasonable doubt that the appellant acted with
    the specific intent to facilitate the commission of a crime by another.
    C. Denial of expert assistance
    On 21 September 2015, the appellant requested the assistance of a
    specific expert consultant in the field of forensic psychology to advise on the
    effects of alcohol on the victim’s memory, for use during the merits,19 and a
    specific expert consultant in the field of clinical psychology to advise on the
    likelihood of recidivism by the appellant, for use during presentencing. 20 The
    military judge denied both requests.
    On 22 October 2015, the defense filed a second motion requesting the
    assistance of a specific expert consultant in the field of forensic psychology,
    again seeking assistance regarding the effects of alcohol on the victim’s
    memory, but now classifying this issue as “confabulation.”21 They also
    renewed their request for a specific expert consultant in the field of clinical
    psychology to advise on the likelihood of recidivism by the appellant and his
    rehabilitative potential.22 To this, they added a motion to compel employment
    of a specific forensic toxicologist to assist them in evaluating the intoxication
    18   Appellee’s Brief of 18 Jan 2017 at 18.
    19   Appellate Exhibit (AE) XIV.
    20   AE XII.
    21   AE XXIV at 4.
    22   AE XXVI.
    8
    United States v. Ramirez, No. 201600139
    levels of the various participants and the impact of alcohol on the victim’s
    memory.23
    The military judge denied the defense’s motions for all three experts and
    prepared findings of fact and conclusions of law. She concluded that the
    appellant failed to show why forensic psychologist and toxicologist assistance
    was needed or what that assistance would accomplish as there was scant
    evidence that LCpl P was appreciably impaired by alcohol at the time of the
    offenses. LCpl P described her state that evening as merely “tipsy,”24 and she
    testified that she stopped drinking several hours before the assaults occurred.
    Additionally, the defense failed to articulate a factual basis establishing that
    LCpl P’s memories were compromised by alcohol or by the proximity of the
    two rapes to each other. The military judge also noted that neither offense
    alleged that the victim was incapacitated due to alcohol.
    Likewise, the military judge concluded that the defense failed to
    demonstrate the need for a clinical psychologist. Although the defense argued
    that the assistance of a clinical psychologist was needed to conduct recidivist
    testing and discuss rehabilitation principals during the sentencing phase, the
    defense linked this assistance to rebutting government claims that the
    appellant was a “predator.” However, the government did not allege another
    incidence of sexual misconduct separate from that arising on 15 February
    2014 and did not assert the appellant was a “predator” during its case.
    The military judge then concluded, for all three requested experts, that:
    [t[he defense has failed to meet its burden to demonstrate what
    the requested expert, or expertise, would accomplish in this
    case or that [the appellant] cannot receive a fundamentally fair
    trial without the [g]overnment’s production of that expertise.25
    The defense is entitled to an expert’s assistance upon demonstration of
    necessity and a showing that “‘denial of expert assistance would result in a
    fundamentally unfair trial.’” United States v. Bresnahan, 
    62 M.J. 137
    , 143
    (C.A.A.F. 2005) (quoting United States v. Gunkle, 
    55 M.J. 26
    , 31 (C.A.A.F.
    2001)). The appellant must prevail on both prongs by a “reasonable
    probability.” 
    Id.
    The “necessity” standard has a three-part test under which the appellant
    “must show (1) why the expert assistance is needed; (2) what the expert
    23   AE XXVIII.
    24   Record at 316.
    25   AE LXV at 3; AE LXVI at 4.
    9
    United States v. Ramirez, No. 201600139
    assistance would accomplish for the accused; and (3) why the defense counsel
    were unable to gather and present the evidence that the expert assistance
    would be able to develop.” Bresnahan, 
    62 M.J. at 143
     (footnote omitted).
    “A military judge’s ruling on a request for expert assistance will not be
    overturned absent an abuse of discretion.” 
    Id.
     (footnote omitted). Here, we
    concur with findings and conclusions of the military judge. The defense failed
    to demonstrate both the necessity of the requested expert assistance and that
    the absence of such assistance would result in a fundamentally unfair trial.
    As a result, we find that the military judge did not abuse her discretion.
    D. Improper argument
    The appellant alleges that the trial counsel committed prosecutorial
    misconduct during closing arguments, when, (1) she stated that the appellant
    and LCpl Arroyo turned LCpl P “into a piece of meat;”26 (2) she argued that
    the appellant “knows what happens to rapists. They go to jail for a long
    time[;]”27 (3) she characterized the defense’s theory as “absurd, ridiculous,
    preposterous, and utterly outside of the realm of your knowledge of basic
    human nature[;]”28 and (4) when she referred to the appellant as “that thing
    over there.”29
    “Prosecutorial misconduct occurs when trial counsel overstep[s] the
    bounds of that propriety and fairness which should characterize the conduct
    of such an officer in the prosecution of a criminal offense.” United States v.
    Hornback, 
    73 M.J. 155
    , 159 (C.A.A.F. 2014) (citations and internal quotation
    marks omitted). “Prosecutorial misconduct can be generally defined as action
    or inaction by a prosecutor in violation of some legal norm or standard, e.g., a
    constitutional provision, a statute, a Manual rule, or an applicable
    professional ethics canon.” United States v. Meek, 
    44 M.J. 1
    , 5 (C.A.A.F. 1996)
    (citing Berger v. United States, 
    295 U.S. 78
    , 88 (1935)).
    “Improper argument is one facet of prosecutorial misconduct.” United
    States v. Sewell, 
    76 M.J. 14
    , 18 (C.A.A.F. 2017) (citing United States v.
    Young, 
    470 U.S. 1
    , 7-11 (1985)). In determining whether an argument is
    improper, we consider whether “[t]he improper comments in this case” were
    or “were not isolated” incidents. United States v. Carter, 
    61 M.J. 30
    , 34
    (C.A.A.F. 2005). Indeed, “the argument by a trial counsel must be viewed
    26   Record at 614.
    27   Id. at 624.
    28   Id. at 647, 648.
    29   Id. at 649.
    10
    United States v. Ramirez, No. 201600139
    within the context of the entire court-martial,” and as a result, “our inquiry
    should not be on words in isolation, but on the argument as ‘viewed in
    context.’” United States v. Baer, 
    53 M.J. 235
    , 237 (C.A.A.F. 2000) (quoting
    Young, 
    470 U.S. at 16
    ).
    When a proper objection to a comment is made at trial, we review for
    prejudicial error. United States v. Fletcher, 
    62 M.J. 175
    , 179 (C.A.A.F. 2005)
    (citing Art. 59, UCMJ). When there is no objection, however, the trial defense
    counsel forfeits the issue and we review for plain error. United States v.
    Rodriguez, 
    60 M.J. 87
    , 88 (C.A.A.F. 2004). To show plain error, the appellant
    must persuade this court that: “‘(1) there was error; (2) the error was plain or
    obvious; and (3) the error materially prejudiced a substantial right of the
    accused.’” United States v. Tunstall, 
    72 M.J. 191
    , 193-94 (C.A.A.F. 2013)
    (quoting United States v. Girouard, 
    70 M.J. 5
    , 11 (C.A.A.F. 2011)). The plain
    error doctrine is “to be used sparingly, solely in those circumstances in which
    a miscarriage of justice would otherwise result.” United States v. Causey, 
    37 M.J. 308
    , 311 (C.M.A. 1993) (citations and internal quotation marks omitted).
    1. “They turned her into a piece of meat.”
    During closing argument, trial counsel argued:
    That guy [the appellant] and [LCpl] Arroyo took away her right
    to self-determination, her right to say what happens to her own
    body. They turned her into a piece of meat.30
    Trial counsel then immediately pivoted to a discussion of the standard of
    proof and the elements of the alleged offenses. The defense did not object to
    this statement. As a result, we review for plain error and find none.
    Disparaging comments directed at the accused are generally improper.
    Fletcher, 62 M.J. at 182. While the relevancy of the comment here to the
    merits of the case or to the findings is not wholly apparent, the comment does
    not appear directed at the appellant. Instead, it seems calculated to
    articulate harm to the victim’s esteem, and was, therefore, perhaps better
    suited to an argument on sentencing. Regardless, the comment was “not so
    obviously improper as to merit relief in the absence of an objection from
    counsel.” Id. at 183.
    30   Id. at 613-14.
    11
    United States v. Ramirez, No. 201600139
    2. Rapists “go to jail for a long time.”
    Next, trial counsel discussed the appellant’s text messages sent to LCpl P
    during their pretext interactions arranged by Naval Criminal Investigative
    Service. The trial counsel argued:
    And then he starts begging. Begging. For more time with his
    family. Do you want to know why he’s begging for more time
    with his family? Because he knows what happens to rapists.
    They go to jail for a long time. That’s why he’s begging for time
    with his family. This isn’t somebody who thinks he made an
    innocuous mistake. This is somebody who knows he did indeed
    f[***] up.31
    At the end of trial counsel’s argument, the defense objected and the
    military judge provided a curative instruction:
    Members, there was a comment made during the
    government’s closing regarding – essentially regarding
    potential punishments for somebody convicted of the offense of
    rape. If sentencing is necessary in this case, that comes later,
    disregard that statement or, sort of, any thoughts about
    punishment. That’s a separate portion of any trial than the
    findings phase.32
    The members then agreed to disregard the trial counsel’s statement.
    Trial counsel may “forcefully assert reasonable inferences from the
    evidence.” United States v. Coble, No. 201600130, 
    2017 CCA LEXIS 113
    , at
    *10, unpublished op. (N-M. Ct. Crim. App. 23 Feb. 2017) (quoting Cristini v.
    McKee, 
    526 F.3d 888
    , 901 (6th Cir. 2008)), rev. denied, __ M.J. __, 
    2017 CAAF LEXIS 679
     (C.A.A.F. Jul. 10, 2017). Here, the trial counsel attempted to infer
    consciousness of guilt from appellant’s messages during the pretext
    exchange—that he “begged” for more time with his family because he feared
    significant time in confinement once the allegation was made. At the same
    time, the argument implied, perhaps inadvertently, that a significant
    sentence to confinement was to be expected. In that regard, the trial counsel’s
    argument was inarticulate. But it did not rise to the level of prejudicial error,
    particularly in light of the military judge’s curative instruction and the
    agreement by the members to disregard the argument to the extent that it
    proffered a possible punishment.
    31   
    Id. at 624
    .
    32   
    Id. at 628
    .
    12
    United States v. Ramirez, No. 201600139
    3. “Absurd, ridiculous, preposterous” and “that thing over there.”
    In closing, the defense argued that “to a certain degree, [LCpl P] needs
    justice. Something happened that night between her and [LCpl] Arroyo. But
    that person is not [the appellant]. Justice needs to be served on [LCpl]
    Arroyo.”33 In response, the trial counsel rebutted:
    And [LCpl] Arroyo goes away and consensual sex takes
    place. Rape and consent. . . . Does that make any bit of sense
    with your training, your experience, your education, your
    knowledge of the ways of the world? Yes, members, rape
    happened. [LCpl] Arroyo testified to it. It did. Consent didn’t
    happen. Not once, not ever. Any suggestion to the contrary –
    again, this is a strong word but I feel like when a concept like
    rape and consent in one moment is raised the only word for
    that is absurd. Actually there’s more words for that: absurd,
    ridiculous, preposterous, and utterly outside of the realm of
    your knowledge of basic human nature.34
    The defense did not object to this statement.
    Subsequently, the trial counsel closed with: “And those texts, desperation.
    . . . From that thing over there, desperation because he knew what was
    coming.”35
    The military judge then, sua sponte, sharply rebuked the trial counsel,
    instructing the members:
    [P]lease disregard the statement from [the trial counsel]
    regarding her reference to [the appellant]. His name is Lance
    Corporal Ramirez, he is the accused in this case. He shouldn’t
    be called any pejorative during the closing argument.36
    It is “plainly improper” argument to disparage defense counsel and
    thereby “encourage[] the members to decide the case based on the personal
    qualities of counsel rather than the facts.” Fletcher, 62 M.J. at 182.
    “Disparaging comments are also improper when they are directed to the
    defendant himself.” Id. However, while the two disputed statements here
    were ill-conceived, when taken in context of the entire argument, we do not
    find they rise to the level of prosecutorial misconduct.
    33   Id. at 646.
    34   Id. at 647-48.
    35   Id. at 649.
    36   Id. at 649-50.
    13
    United States v. Ramirez, No. 201600139
    Regardless, assuming arguendo that the two statements by trial counsel
    were improper, we find no prejudice. In assessing for prejudice, we look at the
    cumulative impact of any misconduct on the appellant’s substantial rights
    and the fairness of his trial by balancing “three factors: (1) the severity of the
    misconduct, (2) the measures adopted to cure the misconduct, and (3) the
    weight of the evidence supporting the conviction.” Id. at 184. Prosecutorial
    misconduct requires reversal when the trial counsel’s behavior, taken as a
    whole, was “so damaging that we cannot be confident that the members
    convicted the appellant on the basis of the evidence alone.” Id.
    Here, the two disputed statements were minor parts of a lengthy court-
    martial and were not reflective of the government’s general theme or theory.
    Additionally, the impact of these isolated statements vanishes when
    measured against the weight of the government’s case in support of the rape
    of LCpl P. Finally, while primarily directed at the “that thing” comment, the
    military judge’s admonition against pejorative argument by trial counsel also
    helped to ameliorate any disparaging conclusions the members may have
    drawn about the appellant or his counsel based upon the two statements by
    trial counsel.
    For these reasons, we are “confident that the members convicted the
    appellant on the basis of the evidence alone.” United States v. Sewell, 
    76 M.J. 14
    , 15 (C.A.A.F. 2017) (citation and internal quotation marks omitted).
    E. Ineffective assistance of counsel
    The appellant alleges his counsel were ineffective for: (1) failing to
    “recognize and clearly challenge” the principal liability theory put forward by
    the government as to Specification 3 of the Charge; (2) failing to bring a
    motion for a finding of not guilty as to Specification 3 of the Charge pursuant
    to RULE FOR COURT-MARTIAL 917, Manual for Courts-Martial, United States
    (2012 ed.); (3) failing to object to the military judge’s instructions as they
    related to principal liability theory; and (4) failing to object to the arguments
    of trial counsel.
    Ineffective assistance of counsel involves a mixed question of law and fact.
    United States v. Anderson, 
    55 M.J. 198
    , 201 (C.A.A.F. 2001). The ultimate
    determinations of whether counsel was deficient and whether the deficiency
    was prejudicial are reviewed de novo. Id.; United States v. McClain, 
    50 M.J. 483
    , 487 (C.A.A.F. 1999).
    We apply the two-prong test set forth by the Supreme Court in Strickland
    v. Washington, 
    466 U.S. 668
    , 687 (1984) to determine whether counsel
    rendered ineffective representation. “The burden on each prong rests with the
    appellant challenging his counsel’s performance.” United States v. Davis, 
    60 M.J. 469
    , 473 (C.A.A.F. 2005).
    14
    United States v. Ramirez, No. 201600139
    The first prong requires the appellant to show that counsel’s performance
    fell below an objective standard of reasonableness, indicating that counsel
    was not functioning as counsel within the meaning of the Sixth Amendment.
    United States v. Terlep, 
    57 M.J. 344
    , 349 (C.A.A.F. 2002). Our review of
    counsel’s performance is highly deferential and is buttressed by a strong
    presumption that counsel provided adequate representation. United States v.
    Garcia, 
    59 M.J. 447
    , 450 (C.A.A.F. 2004).
    The second prong requires a showing of prejudice resulting from counsel’s
    deficient performance. Strickland, 
    466 U.S. at 687
    . Such prejudice must
    result in the denial “of a fair trial, a trial whose result is unreliable.” United
    States v. Dewrell, 
    55 M.J. 131
    , 133 (C.A.A.F. 2001) (citation and internal
    quotation marks omitted). The appropriate test for this prejudice is whether
    there is a reasonable probability that, but for counsel’s error, there would
    have been a different result. United States v. Quick, 
    59 M.J. 383
    , 387
    (C.A.A.F. 2004).
    Our determination above related to Specification 3 of the Charge resolves
    the first three allegations of ineffective assistance of counsel. Given our
    analysis regarding the appellant’s assertion of improper argument, the
    appellant fails to demonstrate that his trial defense counsel’s performance
    was deficient, and he cannot, therefore, overcome the strong presumption of
    adequate representation.
    F. Reassessment of the sentence
    Having set aside one of the two convictions for rape, we must reassess the
    sentence. Courts of Criminal Appeals (CCAs) can often “modify sentences
    ‘more expeditiously, more intelligently, and more fairly’ than a new court-
    martial[.]” United States v. Winckelmann, 
    73 M.J. 11
    , 15 (C.A.A.F. 2013)
    (quoting Jackson v. Taylor, 
    353 U.S. 569
    , 580 (1957)). In such cases, CCAs
    “act with broad discretion when reassessing sentences[.]” 
    Id.
    Reassessing a sentence is only appropriate if we are able to reliably
    determine that, absent the error, the sentence would have been at least of a
    certain magnitude. United States v. Harris, 
    53 M.J. 86
    , 88 (C.A.A.F. 2000). A
    reassessed sentence must not only “be purged of prejudicial error [but] also
    must be ‘appropriate’ for the offense involved.” United States v. Sales, 
    22 M.J. 305
    , 308 (C.M.A. 1986).
    We base these determinations on the totality of the circumstances of each
    case, guided by the following “illustrative, but not dispositive, points of
    analysis”:
    (1) Whether there has been a dramatic change in the penalty landscape or
    exposure.
    (2) Whether sentencing was by members or a military judge alone.
    15
    United States v. Ramirez, No. 201600139
    (3) Whether the nature of the remaining offenses captures the gravamen
    of criminal conduct included within the original offenses and whether
    significant or aggravating circumstances addressed at the court-martial
    remain admissible and relevant to the remaining offenses.
    (4) Whether the remaining offenses are of the type with which appellate
    judges should have the experience and familiarity to reliably determine what
    sentence would have been imposed at trial.
    Winckelmann, 73 M.J. at 15-16.
    Under all the circumstances presented, we find that we can reassess the
    sentence and that it is appropriate for us to do so. First, the penalty
    landscape is unchanged. The maximum punishment remains a sentence to
    life without eligibility for parole. Second, we have extensive experience and
    familiarity with the remaining offense of rape by unlawful force, and it does
    not present any novel issues in aggravation. Finally, the remaining offense
    captures the gravamen of the criminal conduct at issue—the forcible rape of
    LCpl P—and all of the evidence introduced in aggravation during the court-
    martial remains admissible against the appellant.
    Taking these facts as a whole, we can confidently and reliably determine
    that, absent the error, the members would have sentenced the appellant to at
    least confinement for eight years, reduction to pay grade E-1, total
    forfeitures, and a dishonorable discharge. We also conclude that the adjudged
    sentence is an appropriate punishment for the offense and this offender—
    thus satisfying the Sales requirement that the reassessed sentence not only
    be purged of error, but appropriate. Sales, 22 M.J. at 308.
    In arriving at this sentence, we note the apparent disparity with LCpl
    Arroyo’s sentences for his acts on the same evening. As part of a pretrial
    agreement, in exchange for his cooperation in the appellant’s court-marital,
    LCpl Arroyo pleaded guilty at special court-martial to assault consummated
    by battery. He was sentenced to nine months’ confinement, reduction to pay
    grade E-1, forfeiture of $900.00 pay per month for nine months, and a bad-
    conduct discharge. He was also convicted of false imprisonment by the
    Superior Court of California, County of Los Angeles, and was sentenced to
    180 days’ confinement and five years’ probation.
    To receive relief based on sentence disparity in the exercise of our unique,
    highly discretionary authority to determine sentence appropriateness under
    Article 66, UCMJ, the appellant must demonstrate “that any cited cases are
    ‘closely related’ to his or her case and that the sentences are ‘highly
    disparate.’ If the appellant meets that burden . . . then the Government must
    show that there is a rational basis for the disparity.” United States v. Lacy, 
    50 M.J. 286
    , 287 (C.A.A.F. 1999). “Closely related” cases involve “offenses that
    16
    United States v. Ramirez, No. 201600139
    are similar in both nature and seriousness or which arise from a common
    scheme or design.” United States v. Kelly, 
    40 M.J. 558
    , 570 (N.M.C.M.R.
    1994)37 However, co-actors are not entitled to equal sentences. United States
    v. Durant, 
    55 M.J. 258
    , 260 (C.A.A.F. 2001).
    In assessing whether sentences are highly disparate, we are “not limited
    to a narrow comparison of the relative numerical values of the sentences at
    issue” but may also consider “the disparity in relation to the potential
    maximum punishment.” Lacy, 50 M.J. at 287. A vast difference in maximum
    punishments can result from the disposition forums. A convening authority’s
    discretion on “the selection of the appropriate forum for disposition is part of
    prosecutorial discretion,” and “[d]ecisions on how to process a case are not
    considered de novo at the reviewing court level.” Kelly, 40 M.J. at 570. If
    cases are closely related yet result in widely disparate disposition, we must
    instead decide whether the disparity in disposition also results from good and
    cogent reasons. Id.
    While we agree that the appellant’s and LCpl Arroyo’s cases are closely
    related, there exist good and cogent reasons for the disparity in sentence.
    First, LCpl Arroyo’s case was resolved at special court-martial, where he
    voluntarily pleaded guilty to reduced charges in consideration for his
    cooperation in the prosecution of the appellant. Second, LCpl Arroyo faced
    related charges in a civilian court, to which he pleaded guilty and was
    sentenced to a significant period of probation. The decision by the convening
    authority to enter into a pretrial agreement that included reduced charges
    and forum, and by the County of Los Angeles to separately pursue a criminal
    case against LCpl Arroyo, were well within their discretion, and we will not
    challenge those decisions in an effort to numerically level an otherwise just
    sentence.
    III. CONCLUSION
    The finding of guilty to Specification 3 of the Charge is set aside. The
    remaining findings of guilty to the Charge and Specification 5 thereunder
    and to so much of the sentence as extends to 8 years’ confinement, reduction
    to pay grade E-1, forfeiture of all pay and allowances, and a dishonorable
    discharge are affirmed.
    Senior Judge MARKS and Judge JONES concur.
    For the Court
    R.H. TROIDL
    Clerk of Court
    37   See also Lacy, 50 M.J. at 288.
    17