United States v. Private First Class JOSHUA J. LIKOVIC

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
MULLIGAN, FEBBO, and WOLFE
Appellate Military Judges
UNITED STATES, Appellee
v.
Private First Class JOSHUA J. LIKOVIC
United States Army, Appellant
ARMY 20160554
Headquarters, Seventh Army Training Command
Joseph A. Keeler, Military Judge
Lieutenant Colonel Eugene Y. Kim, Staff Judge Advocate
For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA (on
brief)
For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Melissa Dasgupta Smith, JA; Captain Jennifer A. Donahue, JA (on brief).
31 July 2017
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SUMMARY DISPOSITION
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Per Curium:
In this appeal we review appellant’s pleas of guilty to three specifications of
assault consummated by battery against his spouse, in violation of Article 128,
Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. § 928 (2012). The
military judge sentenced appellant to a bad-conduct discharge and seven months
confinement. The convening authority approved the adjudged sentence.
This case is before the court for review under Article 66, UCMJ. Appellant
assigns one error alleging “the military judge erred by allowing improper character
of prior service evidence, improper aggravation evidence and improper evidence of
rehabilitative potential,” and arguing the government’s sentencing case
impermissibly included specific acts as evidence of appellant’s poor rehabilitative
potential. Appellant did not object to this evidence at trial. In conducting a plain
error analysis we find appellant has failed to demonstrate any material prejudice to
LIKOVIC – ARMY 20160554
his substantial rights. Appellant also raises matters pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), which are without merit.
LAW AND DISCUSSION
To establish plain error, appellant must show 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. Paige, 67 M.J. 442, 449
(C.A.A.F. 2009).
At trial, appellant’s company commander and first sergeant testified about
changes in appellant’s duty performance and behavior after he was accused of the
instant offenses. Appellant asserts that this was impermissible testimony regarding
specific acts of appellant’s duty performance. Under Rule for Courts-Martial
1001(b)(5), the government’s presentation of testimony regarding an accused’s
rehabilitative potential is (at least initially) limited to opinions.
However, regardless of any error, appellant has failed to demonstrate any
material prejudice to his substantial rights where such evidence appeared to be a part
of the defense sentencing strategy and where such underlying conduct was also
included in the stipulation of fact.
Indeed, appellant’s lack of objection appears to be intentional and tactical.
Appellant’s unsworn statement included telling the military judge that “[w]hen I was
told that I would be court-martialed, I had a hard time caring about anything after
that. I lost my motivation.” That is, appellant echoed the questionable testimony of
his commander and first sergeant. Appellant used this initial tale of woe to
transition into a sentencing case involving his redemption. After discussing his
downward trajectory, appellant then talked about how he recognized his mistake and
how he would use that recognition “as a motivation to better [him]self.” Appellant
also called witnesses who discussed specific instances of recent rehabilitation to
demonstrate his potential for rehabilitation.
We also see little likelihood that the questioned testimony mattered.
Appellant stipulated to several specific acts of uncharged misconduct. Appellant
missed morning formation, showed up late to work “reeking” of alcohol, denied
drinking alcohol despite the sworn statements of a fellow soldier who had been
drinking with him, told his supervisor he “cannot promise that I will be able to show
up” to future formations on time, and when counseled by his first sergeant stated
“[w]hy should I care because I’m going to jail anyway.” Given appellant’s
stipulation to the underlying facts, we see no prejudice from the commander and
first sergeant’s testimony.
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LIKOVIC – ARMY 20160554
CONCLUSION
The findings of guilty and the sentence are AFFIRMED.
FOR THE
FOR THE COURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of
Clerk ofCourt
Court
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