United States v. Captain JOSEPH L. SIMMONS

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
BROOKHART, SALUSSOLIA, and SCHASBERGER
Appellate Military Judges
UNITED STATES, Appellee
Vv.
Captain JOSEPH L. SIMMONS
United States Army, Appellant
ARMY 20180061
Headquarters, 25th Infantry Division
Kenneth W. Shahan, Military Judge
Lieutenant Colonel Howard T. Matthews, Jr., Acting Staff Judge Advocate
For Appellant: Lieutenant Colonel Todd W. Simpson, JA; Captain Augustus Turner,
JA (on brief).
For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Major Virginia Tinsley, JA; Captain Brian Jones, JA (on brief).
22 October 2019
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
BROOKHART, Judge:
Contrary to his pleas, a panel of officers convicted appellant of one
specification of violating a lawful general regulation,' one specification of sexual
assault of a child, one specification of sexual abuse of a child, and one specification
of obstructing justice, in violation of Articles 92, 120b, and 134, Uniform Code of
' The panel originally entered guilty findings for two specifications of violating a
lawful general regulation in violation of Article 92, UCMJ. However, after findings
but before sentencing, the military judge dismissed one specification of violating a
lawful general regulation, pursuant to a defense motion, for failing to state an
offense.
SIMMONS—ARMY 20180061
Military Justice, 10 U.S.C. §§ 892, 920b, and 934 [UCMJ].* Appellant was
sentenced to be dismissed from the service and to be confined for one year and six
months. The convening authority approved the sentence as adjudged.
This case comes before us for review under Article 66, UCMJ. Appellant
raises three assignments of error: first, that he was denied effective assistance of
counsel because his trial defense counsel did not move to suppress DNA evidence;
second, that his conviction for violating a lawful general regulation was legally and
factually insufficient; and finally, that he is entitled to relief for dilatory post-trial
processing. The first two issues raised by appellant merit discussion, but none merit
relief.’
BACKGROUND
A. Appellant’s Relationship with Staff Sergeant AD and Her Children
In 2013, appellant, then a Captain, became involved in a relationship with an
enlisted member, Staff Sergeant (SSG) AD, while both were stationed at Fort
Huachuca, Arizona. Staff Sergeant AD had three children from a prior marriage;
two daughters, AB and KB, and a son, CB. Appellant got to know and grew close to
all three children over the course of his relationship with SSG AD. The relationship
eventually ended and both parties continued with their military careers at different
installations. In the summer of 2016, appellant and SSG AD found themselves both
stationed in Hawaii, although in separate commands. Appellant reached out to SSG
AD and attempted to rekindle their relationship. When SSG AD rebuffed his efforts,
appellant asked if he could still spend time with SSG AD’s children who were all
under the age of sixteen years at the time. Staff Sergeant AD agreed, and appellant
thereafter spent substantial time with SSG AD’s children, such as taking the three
children to the beach and the movies, as well as other activities throughout the
remainder of the summer and into the fall.
Shortly after her arrival in Hawaii, SSG AD received orders to attend a two-
month resident career development course at Fort Jackson, South Carolina. The
course was scheduled to run from October to December. As a single mother with no
relatives in Hawaii, SSG AD struggled to find someone to care for her children
while she attended the course. Appellant was aware of the situation and volunteered
* The panel also acquitted appellant of five specification of sexual abuse of a child,
in violation of Article 120b, UCMJ.
3 We have also considered the matters personally raised by appellant pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find they merit neither
discussion nor relief.
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to care for the children while she attended the course. Staff Sergeant AD ultimately
agreed. To facilitate the arrangement, SSG AD obtained a power of attorney and
designated appellant as a caregiver under her Family Care Plan. Appellant also
signed a document agreeing to accept responsibility for the children. In completing
the paperwork, SSG AD was careful not to disclose appellant’s rank because she
understood the rank disparity would be an issue.
After SSG AD departed for Fort Jackson, the children would sometimes stay
at appellant’s off-post apartment and sometimes appellant would stay with them in
SSG AD’s quarters. When appellant went to SSG AD’s quarters, he would park in
SSG AD’s garage so he would not be identified as an officer in an enlisted
neighborhood. While she was at the course, SSG AD communicated with appellant
and her children via text message and over a video calling application. Over time,
appellant became frustrated with the children’s behavior and threatened to end the
caregiver arrangement. The exchanges between the two on the issue of the
children’s behavior were sometimes heated. At one point, SSG AD contacted her
ex-husband to come to Hawaii and take-over for appellant. Ultimately, the ex-
husband failed to show-up and appellant agreed to continue as caregiver.
B. CN’s Sexual Misconduct Allegations Against Appellant
CN was a fourteen-year-old friend and neighbor of SSG AD’s oldest daughter,
AB. CN spent a lot of time with AB and was frequently around appellant as a result.
On Thanksgiving 2016, CN and SSG AB’s son, CB, spent the night at appellant’s
apartment while AB and KB stayed elsewhere. CN alleged that while she was
sleeping on appellant’s couch, she awoke to find appellant touching her vaginal area
with his toes. When she realized what was happening, CN repositioned herself and
pretended to be on her phone. Eventually, she fell back asleep. Later that night, CN
awoke to find appellant digitally penetrating her vagina. CN got up off the couch
and went into the bathroom where she texted AB and her mother to come and get her
from appellant’s apartment. CN disclosed appellant’s sexual misconduct to her
mother who in turn took her to a medical clinic, where local and military law
enforcement were alerted.
C. Evidence Collection and DNA Testing
Prior to going to the clinic with her mother, CN changed out of the clothes she
was wearing during the sexual assault and left those clothes at her house. While she
was at the clinic, Special Agent (SA) CL-M asked CN’s mother to go and retrieve
the clothing CN wore during the sexual assault. CN’s mother left and retrieved the
clothing which consisted of a shirt, a pair of shorts, and a pair of underwear. She
placed the clothing in a paper shopping bag and then delivered the bag to SA CL-M.
Special Agent CL-M then transported the bag to the Criminal Investigation
Command (CID) office as evidence. Because the alleged incident occurred on a
SIMMONS—ARMY 20180061
holiday weekend, the evidence was secured in a locker outside the evidence room,
where it remained for several days. The next duty day, SA CL-M retrieved the bag
from the locker, placed the clothes and shopping bag in a larger evidence bag, sealed
it, and submitted the bag to the evidence custodian, who sent off the items for
testing.
DNA testing revealed appellant’s DNA on the inside of CN’s shorts in the
area of the crotch. There was also a sample of DNA found on the inside of CN’s
underwear which could not exclude appellant or one of his male relatives as
contributors. Appellant’s DNA was not found on vaginal swabs taken from CN, and
CN’s DNA was not found on appellant’s fingers or under his finger nails.
At trial, appellant’s trial defense counsel did not move to suppress the DNA
evidence offered by the government. Rather, through cross-examination of the
foundational witnesses, defense counsel vigorously attacked the collection and
handling of the CN’s clothing, highlighting CID’s failure to follow a number of their
own procedures. In opening and closing, trial defense counsel argued that the DNA
evidence linking appellant to the charged conduct was not reliable because CN’s
clothing was contaminated with DNA transferred from appellant’s couch due to
mishandling. At the same time, defense counsel argued that the absence of
appellant’s DNA in CN’s vagina and the absence of CN’s DNA on appellant’s
fingers indicated that her version of events was false. Nonetheless, appellant was
convicted of the two specifications related to his sexual misconduct against CN.
On appeal, appellant contends that his defense team was ineffective for not
moving to exclude the results of the DNA testing. Appellant further contends that
the evidence is legally and factually insufficient to sustain his conviction violating
Army Reg. 600-20, Army Command Policy, para. 4-14 (6 Nov. 2014) [AR 600-20],
by having an inappropriate relationship with SSG AD. We disagree with appellant
on both issues, and discuss each in turn.
LAW AND DISCUSSION
A. Ineffective Assistance of Counsel
Allegations of ineffective assistance of counsel involve mixed questions of
law and fact, but questions of deficient performance are reviewed de novo. United
States v. Rose, 71 M.J. 138, 143 (C.A.A.F. 2012).
The Sixth Amendment guarantees an accused the right to the effective
assistance of counsel for his defense. United States v. Cronic, 466 U.S. 648, 653-
656 (1984). In evaluating allegations of ineffective assistance of counsel, courts
apply the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). This
requires an appellant to demonstrate: (1) that counsel’s performance was deficient;
SIMMONS—ARMY 20180061
and (2) that this deficiency resulted in prejudice. Jd. at 687. The proper inquiry
under the first prong is whether counsel’s conduct fell below an objective standard
of reasonableness, or was outside the “wide range of professionally competent
assistance.” Jd. at 690. The second prong is satisfied by showing “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694.
On appellate review, there is a strong presumption that counsel were
competent. United States v. Grigoruk, 56 M.J. 304, 306-07 (C.A.A.F. 2002) (citing
Strickland, 466 U.S. at 689). Strategic decisions “made after thorough investigation
of law and facts relevant to plausible options are virtually unchallengeable.” United
States v. Dewrell, 55 M.J. 131, 133 (C.A.A.F. 2001) (citing Strickland, 466 U.S. at
690). The analysis of counsel’s strategic decisions is not focused on results at trial,
but rather on the objective reasonableness of counsel’s strategy weighed against
available alternatives. United States v. Akbar, 74 M.J. 364, 379 (C.A.A.F. 2015)
(citations omitted). Additionally, when a claim of ineffective assistance is based on
the failure to make a suppression motion, appellant must demonstrate that there was
a reasonable probability that the motion would have been successful. United States
v. McConnell, 55 M.J. 479, 482 (C.A.A.F. 2001) (citing United States v. Napoleon,
46 M.J. 279, 284 (C.A.A.F. 1997)).
In this case, appellant argues that trial defense counsel should have moved to
exclude the DNA evidence on grounds of improper collection and handling of the
source evidence prior it’s testing, rather than on the process or reliability of the
DNA testing itself. This claim fails to meet the two-prong Strickland standard
because appellant cannot show a reasonable probability that a motion to suppress the
DNA evidence would have been successful. DNA evidence is generally admissible
in courts-martial if a proper foundation is established. United States v. Allison, 63
M.J. 365, 369 (C.A.A.F. 2006) (citing United States v. Youngberg, 43 M.J. 379, 386
(C.A.A.F. 1995)). The failure to observe collection protocols and the resulting
potential for contamination do not, in and of themselves, render DNA evidence
inadmissible. Indeed, “the great weight of previous precedent indicates that cross-
examination, not exclusion, is the proper province for a contamination inquiry.”
United States v Morrow, 374 F. Supp. 2d 42, 49 (D.D.C. 2005) (citations omitted).
Given that any potential issues with the DNA evidence in this case related to
the collection procedures rather than scientific nature of the testing itself, there is no
reasonable probability that the evidence would have been excluded had such a
motion been filed at trial. Instead of filing a motion not supported by the law,
defense counsel made the reasonable, tactical decision to attack the collection
process throughout the trial. In his opening statement, trial defense counsel
highlighted errors in the collection process and honed in on their unreliability.
During trial, defense counsel attacked the collection and handling by thoroughly
cross-examining numerous government witnesses on the handling of the source
SIMMONS—ARMY 20180061
evidence. Finally, trial defense counsel used the concessions won on cross-
examination to support his closing argument that the presence of appellant’s DNA on
the inside of CN’s shorts, and the possible presence of his DNA on her underwear,
were the result of contamination invited by improper collection. This approach
allowed defense counsel to challenge the reliability of the DNA results which hurt
appellant, while still highlighting the DNA evidence that was more beneficial to his
case. As such, we find that defense counsel’s approach was legally sound under all
the circumstances and did not deprive appellant of his right to a fair trial.
Having found trial defense counsel’s performance objectively reasonable,
there is no need to address the second prong of Strickland. Accordingly, appellant
has failed to demonstrate he was denied effective assistance of counsel.*
B. Legal and Factual Sufficiency
This Court holds findings of guilt legally sufficient when any rational fact
finder “could have found all essential elements of the offense beyond a reasonable
doubt.” United States v. Nicola, 78 M.J. 223, 226 (C.A.A.F. 2019) (citations
omitted). In conducting our legal sufficiency review, we are obligated to draw
“every reasonable inference from the evidence of record in favor of the
prosecution.” United States v. Robinson, 77 M.J. 294, 298 (C.A.A.F. 2018)
(citations omitted). “As such, the standard for legal sufficiency involves a very low
threshold to sustain a conviction.” United States v. King, 78 M.J. 218, 221
(C.A.A.F. 2019) (citation and internal marks omitted).
With regard to factual sufficiency, we take “a fresh, impartial look at the
evidence,” applying “neither a presumption of innocence nor a presumption of
guilt.” United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). We may not
affirm a conviction unless, “after weighing the evidence in the record of trial and
making allowances for not having personally observed the witnesses,” we are
4 Under the circumstances of this case, we see no need to order a fact finding hearing
pursuant to United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967)
because the record is replete with evidence that the defense team’s strategy was to
challenge the reliability of the DNA collection. Further, of appellant’s two
affidavits submitted in this case, only one possibly relates to a claim of ineffective
assistance of counsel. See Def. App. Ex. B. However, appellant’s affidavit possibly
related to ineffective assistance of counsel addresses an issue appellant raised
pursuant to Grostefon rather than the suppression of the DNA evidence.
Accordingly, the factors discussed in United States v. Ginn, 47 M.J. 236, 248
(C.A.A.F. 1997), are not implicated for the DNA suppression issue, and the first
Ginn factor allows this Court to proceed in deciding the Grostefon issue without a
post-trial evidentiary hearing.
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personally convinced beyond a reasonable doubt of appellant’s guilt. United States
v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).
In this case, Specification 1 of Charge II alleged that appellant violated
paragraph 4-14 of AR 600-20 by having an inappropriate relationship with SSG AD
between on or about 1 October 2016 and on or about 31 November 2016. Appellant
contends the evidence is both legally and factually insufficient to sustain his
conviction for violating Article 92, UCMJ. Specifically, that during the charged
timeframe, his actions consisted only of caring for SSG AD’s children, which is not
prohibited by the paragraph 4-14 of AR 600-20. We disagree.
Paragraph 4-14.b.(1)-(5), AR 600-20, lists five broad circumstances in which
relationships between soldiers of different ranks are always prohibited.” Moreover,
the preceding language in paragraph 14-4.b. sets up a catchall prohibition which
prohibits other improper relationships which are not specifically listed. That section
states that “Soldiers of different grades must be cognizant that their interactions do
not create an actual or clearly predictable perception of undue familiarity...” AR
600-20, para. 4-14.b. Repeated visits to homes between officer and enlisted
members is provided as an example of an interaction that may create a clearly
predictable perception of undue familiarity. Jd.
In this case, the evidence presented at trial showed that during the charged
timeframe, but prior to SSG AD’s departure for South Carolina, appellant regularly
coordinated with SSG AD in order to spend time with her children. To execute these
interactions, appellant came to SSG AD’s home or SSG AD traveled to appellant’s
home to exchange the children. Appellant frequently asked SSG AD to
accompanying them on their activities, and appellant routinely told SSG AD that he
loved her.
The evidence also showed that appellant repeatedly offered to serve as
caretaker for SSG AD’s children while she was gone for the two-month course.
When SSG AD finally agreed, she completed the necessary paperwork to allow
appellant to care for the children. In doing so, SSG AD was aware she needed to
avoid revealing appellant’s rank. Appellant also signed documents accepting
responsibility for SSG AD’s children and had it notarized by a civilian notary.
> “All relationships between Soldiers of different grade are prohibited if they—(1)
Compromise, or appear to compromise, the integrity of supervisory authority or the
chain of command. (2) Cause actual or perceived partiality or unfairness. (3)
Involve, or appear to involve, the improper use of grade or position for personal
gain. (4) Are, or are perceived to be, exploitive or coercive in nature. (5) Create an
actual or clearly predictable adverse impact on discipline, authority, morale, or the
ability of the command to accomplish its mission.” AR 600-20, para. 4-14.b.(1)-(5).
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There was evidence that appellant was also aware of the need to disguise his rank
when he was at SSG AD’s quarters. Finally, before her departure, appellant met in
person with SSG AD and the children to establish his ground rules for supervising
the children.
Once SSG AD departed, the evidence showed that appellant spent some nights
sleeping in her quarters with the children and brought them to his apartment on other
nights. One witness familiar with the arrangement testified that he believed
appellant was SSG AD’s boyfriend. Further, SSG AD testified that while she was in
South Carolina, she texted with appellant or they spoke over the phone about the
children. During these calls and texts, SSG AD referred to appellant by his first
name, rather than his rank, and he did the same with regard to SSG AD. Moreover,
when disputes arose about SSG AD’s children, they argued with each other in an
equally abrasive manner that demonstrated no regard for their rank disparity. Staff
Sergeant AD testified that she believed one such dispute arose because appellant was
jealous of her relationship with another soldier in the course. Finally, when
confronted by CN’s parents about the sexual abuse allegation, appellant repeatedly
stressed his rank, knowing that CD’s father was an enlisted member.
All of this evidence was more than enough to allow a reasonable fact finder to
find beyond a reasonable doubt that appellant’s relationship with SSG AD was
unduly familiar in violation of either paragraph 4-14.b.’s general prohibition or of
the specific prohibition against relationships which create an actual or clearly
predictable adverse impact on discipline, authority, morale, or the ability of the
command to accomplish its mission. See AR 600-20, para. 4-14.b.(5). Moreover,
having reviewed all of the evidence and making the appropriate allowances, we too
are convinced, beyond a reasonable doubt, of appellant’s guilt for violating
paragraph 4-14.b. of AR 600-20.
CONCLUSION
For the reasons stated above, we find appellant’s assignments of error to be
without merit. Accordingly, upon consideration of the entire record, the findings
and sentence are AFFIRMED.
Judge SALUSSOLIA and Judge SCHASBERGER concur.
FOR THE COURT:
MAXECOLM H. SQUIRES, JR.
Clerk of Court