United States v. McMULLEN ( 2018 )

U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
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No. 201700371
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UNITED STATES OF AMERICA
Appellee
v.
BRET D. McMULLEN
Lance Corporal (E-3) U.S. Marine Corps
Appellant
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Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Commander Shane E. Johnson, JAGC, USN.
Convening Authority: Commanding General, 1st Marine Aircraft
Wing, Okinawa, Japan.
Staff Judge Advocate’s Recommendation: Lieutenant Colonel
Melanie J. Mann, USMC.
For Appellant: Commander R.D. Evans, Jr., JAGC, USN.
For Appellee: Major Kelli A. O’Neil, USMC; Captain Luke Huisenga,
USMC.
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Decided 17 July 2018
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Before H UTCHISON , P RICE , and H INES , Appellate Military Judges
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This opinion does not serve as binding precedent but may be cited as
persuasive authority under NMCCA Rule of Practice and Procedure
18.2.
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PER CURIAM:
A military judge sitting as a general court-martial convicted the
appellant, pursuant to his pleas, of one specification of sexual assault of a
child in violation of Article 120b, Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 920b (2016). The military judge sentenced the appellant to 24
months’ confinement, reduction to paygrade E-1, and a dishonorable
United States v. McMullen, No. 201700371
discharge. The convening authority approved the sentence as adjudged, but
pursuant to a pretrial agreement, suspended all confinement in excess of 10
months.
In a combined assignment of error raised pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), the appellant contends the trial counsel
made improper argument during presentencing by mischaracterizing his
mother’s testimony and that the record of trial is inaccurate in that it fails to
specifically reflect the trial counsel’s mischaracterization of that testimony.
After careful consideration of the record of trial and the pleadings of the
parties, we conclude the findings and sentence are correct in law and fact,
and that no error materially prejudicial to the substantial rights of the
appellant occurred. Arts. 59(a) and 66(c), UCMJ.
I. BACKGROUND
At the time of the offense to which he pleaded guilty, the appellant was a
20-year-old Lance Corporal in the Marine Corps. In the fall of 2016, he met
the victim, N.S., through a dating application on his phone. When they
initially met in person, N.S. told the appellant she was 17 years old, but as
their relationship progressed, N.S. eventually told the appellant she was 15
years old. After N.S. told the appellant she was 15, the appellant engaged in
sexual intercourse with her on divers occasions.
During the providence inquiry, the appellant told the military judge he
ultimately learned that N.S. was only 14 at the time of the offense. He also
admitted that at the time he engaged in sexual intercourse with N.S., he both
knew she was under the age of 16 and knew that it was illegal for him to
engage in sexual intercourse with her because she was under the age of 16.
During the presentencing hearing, the appellant called his mother, B.M.,
as a witness. She testified generally regarding the appellant’s upbringing,
abuse she and the appellant suffered at the hands of the appellant’s father,
their struggles to make a new home for themselves after she left the
appellant’s father, the circumstances of the appellant’s enlistment in the
Marine Corps, the positive effects it had on him, and her pride in his military
service. Eventually, B.M. testified that she had been contacted by N.S., as
well as N.S.’s father and mother. She recounted two messages in which N.S.’s
father texted, “I hope everything works out for [the appellant]”; and “[l]et me
know if there is anything me or my family can do to help.”1 B.M. also testified
that N.S.’s mother:
1 Record at 86.
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[h]as called me I think about three times. She just wanted me to
know that if I needed to talk to somebody that I could call her, that
she could not have asked for a better boyfriend for her daughter, he
kept her safe because they were working a lot.2
B.M. further testified that both of N.S.’s parents knew that the appellant had
engaged in sexual intercourse with their daughter.
On cross-examination, B.M. admitted that in her discussions with N.S.,
N.S. made it clear that she was still in love with the appellant, and B.M.
believed N.S. was obsessed with him. B.M. also spoke with the appellant on
several occasions and opined the appellant was “committed” to N.S.3 Lastly,
N.S.’s parents communicated to B.M. that they both “condoned” the
relationship between the 20-year-old appellant and their 14-year-old
daughter.4
In his argument on sentencing, the trial counsel referenced B.M.’s
testimony several times, pointing out that N.S.’s parents condoned the
appellant’s misconduct, and as a result a sentence of confinement should be
adjudged in order to sufficiently protect N.S. from the appellant having any
ability to rekindle their relationship prior to N.S. turning 16.5 The appellant
did not object to the trial counsel’s arguments.
II. DISCUSSION
A. Improper argument
“Improper argument involves a question of law that this Court reviews de
novo.” United States v. Pabelona, 76 M.J. 9, 11 (C.A.A.F. 2011) (quoting
United States v. Frey, 73 M.J. 245, 248 (C.A.A.F. 2014)). “The legal test for
improper argument is whether the argument was erroneous and whether it
materially prejudiced the substantial rights of the accused.” Id. (internal
quotation marks omitted) (citation omitted). Because the defense counsel
failed to object to the arguments at the time of trial, we review for plain
error. United States v. Andrews, 77 M.J. 393, 2018 CAAF LEXIS 294, at *10
(C.A.A.F. May 22, 2018). The standard for plain error review requires that:
“(1) an error was committed; (2) the error was plain, or clear, or obvious; and
(3) the error resulted in material prejudice to substantial rights.” United
States v. Maynard, 66 M.J. 242, 244 (C.A.A.F. 2008) (internal quotation
2 Id. at 87.
3 Id. at 99.
4 Id. at 100.
5 Id. at 119-21.
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marks omitted) (citation omitted). The appellant has the burden to establish
plain error. Id.
The appellant avers that the trial counsel “mischaracterized [B.M.]’s
testimony.”6 Specifically, the appellant contends that the trial counsel argued
that B.M.—the appellant’s mother—approved of his relationship with N.S.
We disagree. Such a statement does not appear in the record. Rather, the
trial counsel’s argument focused on N.S.’s parents’ approval of their
daughter’s relationship with the appellant. Indeed, the trial counsel’s
argument was based on the record evidence and all reasonable inferences
derived therefrom. The appellant therefore fails to establish error, let alone
an error that is plain or obvious. We find no merit in this assigned error.
B. Inaccurate record of trial
We similarly find no merit in the appellant’s argument that the record of
trial is inaccurate and does not properly reflect the trial counsel’s sentencing
argument. We apply a presumption of regularity to the creation,
authentication, and distribution of the record of trial. United States v.
Godbee, 67 M.J. 532, 533 (N-M. Ct. Crim. App. 2008). In view of this
presumption of regularity inherent in court proceedings, the initial burden of
impeaching an official record is on the party seeking to attack it. United
States v. Weaver, 1 M.J. 111, 115 (C.M.A. 1975).
The appellant has offered nothing to undercut our presumption of
regularity in the completeness, accuracy, or authenticity of the record of trial
submitted for appellate review. Here, the military judge properly
authenticated the record of trial in accordance with RULE FOR COURTS-
MARTIAL 1104(a), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.).
The appellant made no objection to the accuracy of the record prior to it being
forwarded to this court for appellate review. The appellant has failed to
establish that we should not apply the presumption of regularity normally
applied under such circumstances. Accordingly, applying the presumption of
regularity here, we find no error regarding the accuracy of the record of trial.
6 Appellant’s Brief of 20 Feb 18 at 6.
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III. CONCLUSION
The findings and sentence are affirmed.
For the Court
R.H. TROIDL
Clerk of Court
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