United States v. Master Sergeant WALTER L. GRAHAM, JR.

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
MULLIGAN, FEBBO, and WOLFE
Appellate Military Judges
UNITED STATES, Appellee
v.
Master Sergeant WALTER L. GRAHAM, JR.
United States Army, Appellant
ARMY 20150364
Headquarters, Joint Readiness Training Center and Fort Polk
Wade N. Faulkner, Military Judge
Lieutenant Colonel Sean M. Wilson, Acting Staff Judge Advocate (pretrial)
Colonel Jan E. Aldykiewicz Staff Judge Advocate (recommendation)
Lieutenant Colonel Sean T. McGarry Staff Judge Advocate (addendum)
For Appellant: Colonel Mary J. Bradley, JA; Major Andres Vazquez Jr., JA; Captain
Jennifer K. Beerman, JA (on brief).
For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Anne C. Hsieh, JA; Major Lionel C. Martin, JA (on brief).
2 November 2016
----------------------------------
SUMMARY DISPOSITION
----------------------------------
WOLFE, Judge:
On appeal, appellant claims the military judge erred in accepting his guilty
plea at a general court-martial to six specifications of raping his step-daughter and
four specifications of forcibly sodomizing his step-daughter. 1 The military judge
1
Appellant does not assign any error regarding his plea to lewd acts with a child or
false official statement. Additionally, appellant raises, pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), three issues. First, appellant requests relief
for the 163 days it took for the convening authority to act on his case. We find no
due process violation and determine that no additional relief is warranted. Second,
appellant claims that the collateral effects of his dishonorable discharge are too
severe. We find that a dishonorable discharge appropriately characterizes
appellant’s service in light of his crimes. Third, appellant claims that offenses
(continued . . .)
GRAHAM—ARMY 20150364
sentenced appellant to a dishonorable discharge, confinement for fifty-one years,
and a reduction to the grade of E-1. Appellant argues that the providence inquiry
did not establish sufficient evidence of his use of force against his victim, KG. As
we disagree, we affirm the findings and the approved sentence. 2
Each specification of rape alleged that appellant had raped his step-daughter
“by using force against [KG], to wit: the abuse of his personal authority as her step-
father.” Appellant alleges that he did not adequately explain in his guilty plea how
the abuse of his parental authority constituted force.
Although not addressed in appellant’s brief, we find the definitions of “force”
in Article 120b(h)(2), UCMJ, to determine the outcome of this issue. 3 It states “[i]n
the case of a parent-child or similar relationship, the use or abuse of parental
authority is sufficient to constitute the use of force.” With that definition, we find
no basis in law or fact to question the providence of appellant’s pleas to rape of a
child.
Similarly, we find no basis in law or fact to question appellant’s plea to the
forcible sodomy charges. The military judge defined “constructive force” to
appellant, to include circumstances involving abuse of parental authority.
Appellant’s granting of privileges in exchange for sexual acts, and the threat of
punishment for not complying with appellant, adequately established the providence
of his guilty plea. Appellant’s stipulation that he “continually leveraged his position
of authority in the household to force sex on [KG],” combined with his stipulation
(. . . continued)
charged under Article 120b are multiplicious with offenses charged under Article
125. We disagree, as the offenses each have different elements. See Blockburger v.
United States, 284 U.S. 299, 304 (1932); United States v. Teters, 37 M.J. 370, 377
(C.A.A.F. 1993)). Additionally, we find that appellant’s guilty plea waived any
claim that the offenses were unreasonably multiplied and do not choose to otherwise
exercise our discretionary authority to notice waived error.
2
In accordance with a pretrial agreement the convening authority reduced the
confinement to twenty-five years, but otherwise approved the sentence as adjudged.
The convening authority also deferred and waived automatic forfeitures for the
benefit of appellant’s dependents.
3
Appellant argues that the “facts elicited during the providence inquiry along with
the facts contained in the Stipulation of Fact do not show that MSG Graham’s
parental authority over Ms. KG amounted to force.” Although both briefs are
entirely focused on whether the proceedings adequately established whether
appellant used force, neither brief cites to Congress’s definition of “force” which
expressly addresses the issue.
2
GRAHAM—ARMY 20150364
that he “forcefully” penetrated his step daughter, “shoved his penis into her mouth,”
and told her that she had to “pay for her phone” while grabbing her and inserting his
penis in her mouth, also established that he was provident to the offenses.
The findings of guilty and the approved sentence are AFFIRMED.
Senior Judge MULLIGAN and Judge FEBBO concur.
FOR THE
FOR THE COURT:
COURT:
MALCOLM
MALCOLM H. H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of Court
Clerk of Court
3