United States v. Wilson-Crow

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM 38706 (reh)
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UNITED STATES
Appellee
v.
Nathan G. WILSON-CROW
Airman First Class (E-3), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 7 May 2019
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Military Judge: Donald R. Eller, Jr. (trial); Vance H. Spath (sentence
rehearing).
Approved sentence: Bad-conduct discharge, confinement for 14 months,
and reduction to E-1. Sentence adjudged 15 May 2018 by GCM convened
at Joint Base San Antonio-Lackland, Texas.
For Appellant: Major Mark C. Bruegger, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Mary Ellen
Payne, Esquire.
Before MAYBERRY, JOHNSON, and MINK, Appellate Military Judges.
Senior Judge JOHNSON delivered the opinion of the court, in which
Chief Judge MAYBERRY and Judge MINK joined.
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This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
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JOHNSON, Senior Judge:
This case is before us for the third time.
United States v. Wilson-Crow, No. ACM 38706 (reh)
At Appellant’s original trial, a general court-martial composed of a panel of
officers convicted Appellant, pursuant to mixed pleas, of one specification of
abusive sexual contact, two specifications of sexual abuse of a child, one speci-
fication of indecent exposure, one specification of assault consummated by a
battery, and two specifications of wrongfully providing alcohol to a minor, in
violation of Articles 120, 120b, 120c, 128, and 134, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 920, 920b, 920c, 928, 934. 1 The court-martial
sentenced Appellant to a dishonorable discharge, confinement for two years,
forfeiture of all pay and allowances, and reduction to the grade of E-1. The
convening authority approved the adjudged sentence.
Upon our initial review, we affirmed the findings and sentence. United
States v. Wilson-Crow, No. ACM 38706, 2016 CCA LEXIS 107 (A.F. Ct. Crim.
App. 25 Feb. 2016) (unpub. op.). The United States Court of Appeals for the
Armed Forces (CAAF) granted review, set aside our prior decision, and re-
manded the case to us for a new review under Article 66, UCMJ, 10 U.S.C. §
866. United States v. Wilson-Crow, 76 M.J. 334 (C.A.A.F. 2017). On remand,
we set aside the findings of guilt as to Specification 1 of Additional Charge I—
the specification of abusive sexual contact—as well as the sentence in light of
the CAAF’s decisions in United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016),
and United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017). We affirmed the re-
maining findings, authorized a rehearing, and returned the record of trial to
The Judge Advocate General for remand to the convening authority for further
action consistent with our opinion. United States v. Wilson-Crow, No. ACM
38706 (rem), 2017 CCA LEXIS 716 (A.F. Ct. Crim. App. 16 Nov. 2017) (unpub.
op.).
The convening authority dismissed Specification 1 of Additional Charge I
and directed a rehearing for sentencing on the remaining findings of guilty. On
15 May 2018, a general court-martial composed of a military judge alone sen-
tenced Appellant to a bad-conduct discharge, confinement for 14 months, re-
duction to the grade of E-1, and forfeiture of all pay and allowances. The con-
vening authority disapproved the adjudged forfeiture and approved the re-
mainder of the sentence.
1 In accepting Appellant’s pleas of guilty to both specifications of wrongfully providing
alcohol to a minor in violation of Article 134, UCMJ, the military judge excepted
charged language alleging the acts were prejudicial to good order and discipline, of
which excepted language Appellant was found not guilty. In addition, Appellant was
acquitted of two specifications of rape and two specifications of abusive sexual contact
in violation of Article 120, UCMJ.
2
United States v. Wilson-Crow, No. ACM 38706 (reh)
Appellant now raises a single issue for our review: whether trial counsel
made an improper sentencing argument at the sentencing rehearing. 2 We find
no prejudicial error and we affirm.
I. BACKGROUND
In April 2013, Appellant—an Air Force photographer—volunteered to
serve as an official photographer for a three-day high school Junior Reserve
Officer Training Corps (JROTC) leadership and teambuilding camp in central
Texas. Unbeknownst to the other adult supervisors present at the camp, Ap-
pellant participated in a series of games of “truth or dare” with the students.
After one such session, Appellant slapped the buttocks of a 16-year-old female
student without her consent. The final game of truth or dare involving Appel-
lant escalated to more overtly sexual behavior, including inter alia Appellant
exchanging outer garments with a female student, BD; Appellant sucking the
exposed nipple of a female 18-year-old student, LR; and Appellant briefly ex-
posing his penis. These acts occurred in the presence of a group of the students,
at least one of whom was under 16 years of age. Unrelated to the JROTC camp,
in separate incidents in June and July 2013 Appellant provided alcohol to a
19-year-old civilian.
II. DISCUSSION
A. Law
Improper argument is a question of law that we review de novo. United
States v. Pabelona, 76 M.J. 9, 11 (C.A.A.F. 2017) (quoting United States v. Frey,
73 M.J. 245, 248 (C.A.A.F. 2014)). The test for improper argument is whether
the argument was erroneous and whether the argument materially prejudiced
the appellant’s substantial rights. Id. (quoting Frey, 73 M.J. at 248). When
there is no objection at trial, we review the propriety of trial counsel’s argu-
ment for plain error. United States v. Halpin, 71 M.J. 477, 479 (C.A.A.F. 2013)
(citation omitted). To prevail under a plain error analysis, the appellant must
show “(1) there was an error; (2) it was plain or obvious; and (3) the error ma-
terially prejudiced a substantial right.” United States v. Erickson, 65 M.J. 221,
223 (C.A.A.F. 2007) (citations omitted).
“[T]rial counsel may ‘argue the evidence of record, as well as all reasonable
inferences fairly derived from such evidence.’” Halpin, 71 M.J. at 479 (quoting
United States v. Baer, 53 M.J. 235, 237 (C.A.A.F. 2000)). “[I]n the context of an
allegedly improper sentencing argument, we consider whether ‘trial counsel’s
2Appellant personally raises this issue pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982).
3
United States v. Wilson-Crow, No. ACM 38706 (reh)
comments, taken as a whole, were so damaging that we cannot be confident’
that [the appellant] was sentenced ‘on the basis of the evidence alone.’” Id. at
480 (quoting Erickson, 65 M.J. at 224) (internal quotes omitted).
B. Analysis
Appellant contends the trial counsel made an improper sentencing argu-
ment when he included the names of three particular JROTC students in a list
of “victims” of Appellant’s offenses. Specifically, Appellant argues that it was
plain error to refer to LR, the 18-year-old student whose nipple Appellant
sucked, as a victim because she appeared to be one of the organizers of the
truth or dare game and was a willing co-actor. Appellant also contends that
BD, the student with whom Appellant switched clothes, and LH, the student
who dared Appellant to expose his penis, could not properly be considered vic-
tims because neither of them testified and there was no direct evidence that
either of them observed Appellant’s indecent exposure or any other charged
misconduct or was adversely affected by it. Although trial defense counsel did
not object to the argument, Appellant contends the reference to LR, BD, and
LH as “victims” was plain error.
We find no plain error. Trial counsel may argue reasonable inferences fairly
derived from the evidence. Halpin, 71 M.J. at 479 (citation omitted). Testimony
indicated that LR, BD, and LH were all present when Appellant indecently
exposed himself to the group of students. At least some of the students actually
observed Appellant’s penis; others may not have, either by choice or as a result
of their positioning or circumstances. However, it is a fair inference that all of
the students present were aware that Appellant had indecently exposed him-
self to the group. Considering all the circumstances, we find it was not im-
proper for trial counsel to refer to those JROTC students who were present
when Appellant indecently exposed himself as “victims.”
Assuming arguendo that trial counsel’s argument was “plain” or “obvious”
error, we find Appellant’s substantial rights were not materially prejudiced.
See Erickson, 65 M.J. at 223. Appellant was sentenced by a military judge, who
is “presumed to know the law and to follow it absent clear evidence to the con-
trary.” Id. at 225 (citing United States v. Mason, 45 M.J. 483, 484 (C.A.A.F.
1997)). We find no such evidence to the contrary here. Accordingly, we are con-
fident Appellant was sentenced “on the basis of the evidence alone.” Halpin, 71
M.J. at 480 (quoting Erickson, 65 M.J. at 224).
III. CONCLUSION
The approved findings were previously affirmed. The approved sentence is
correct in law and fact, and no error materially prejudicial to the substantial
4
United States v. Wilson-Crow, No. ACM 38706 (reh)
rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§
859(a), 866(c) (2016). Accordingly, the sentence is AFFIRMED. 3
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
3 We note two errors in the court-martial order with respect to the pleas and findings.
First, the order incorrectly indicates Appellant pleaded “not guilty” rather than
“guilty” to Specification 2 of Charge I. Second, the order incorrectly indicates Addi-
tional Charge I was “[w]ithdrawn and dismissed” when only Specification 1 thereunder
was withdrawn and dismissed; Appellant was tried on Specifications 2 through 5 of
Additional Charge I and found “not guilty,” and those findings should be reflected in
the order with respect to Additional Charge I. We direct the publication of a corrected
court-martial order to remedy these errors.
5