United States v. Whitlock

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM 39379
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UNITED STATES
Appellee
v.
Adam N. WHITLOCK
Senior Airman (E-4), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 09 August 2018
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Military Judge: Christopher M. Schumann.
Approved sentence: Bad-conduct discharge, confinement for 30 months,
forfeiture of all pay and allowances, and reduction to E-1. Sentence ad-
judged 18 September 2017 by GCM convened at Mountain Home Air
Force Base, Idaho.
For Appellant: Major Kevin R. Cayton, USAF; Captain Mark J.
Schwartz, USAF.
For Appellee: Colonel Julie L. Pitvorec, USAF; Lieutenant Colonel G.
Matt Osborn, USAF; Lieutenant Colonel Joseph J. Kubler, USAF; Mary
Ellen Payne, Esquire; Justin P. Kenyon, Legal Extern. *
Before HARDING, HUYGEN, and POSCH, Appellate Military Judges.
Judge POSCH delivered the opinion of the court, in which Senior Judge
HARDING and Judge HUYGEN 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This is an unpublished opinion and, as such, does not serve as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.
*Mr. Kenyon was a law student extern with the Air Force Legal Operations Agency
and was at all times supervised by attorneys admitted to practice before this court.
United States v. Whitlock, No. ACM 39379
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POSCH, Judge:
In accordance with Appellant’s pleas pursuant to a pretrial agreement, a
general court-martial composed of a military judge found Appellant guilty of
five specifications of sexual abuse of AD, a 13-year-old girl, and one specifica-
tion of obstruction of justice in violation of Articles 120b and 134, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. §§ 920b, 934. The military judge sen-
tenced Appellant to a bad-conduct discharge, confinement for three years, for-
feiture of all pay and allowances, and reduction to E-1. Consistent with the
terms of the pretrial agreement, the convening authority approved only 30
months of confinement but otherwise approved the sentence as adjudged.
Appellant claims, pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), that his sentence is inappropriately severe and asks the court
to reduce his sentence to confinement or, alternatively, disapprove the bad-
conduct discharge. We disagree, find no prejudicial error, and affirm.
I. BACKGROUND
Appellant met 13-year-old AD in February or March 2017 when she began
living with her aunt, DB, and her aunt’s then-deployed husband, Technical
Sergeant (TSgt) BB, on Mountain Home Air Force Base, Idaho. Appellant, a
friend of DB, frequented DB’s home during lunch breaks, after work, and on
weekends. During these visits Appellant developed a personal relationship
with AD. After TSgt BB returned from deployment, he met Appellant. TSgt BB
was taken aback by Appellant’s flirtatious interaction with AD and confronted
Appellant, warning that “he’d better not be doing anything with her.” DB ex-
pressed similar concerns to Appellant after DB read messages in which AD
admitted to having romantic feelings for Appellant.
Appellant’s relationship with AD intensified despite TSgt BB and DB’s
warnings, contrary to Appellant’s false assurances that “nothing was going on,”
and although he would talk with AD about her feelings for him. On no fewer
than five occasions, Appellant touched AD through her clothing on her buttocks
and breasts and directly on her thigh and waist with the intent to gratify his
sexual desires.
In early to mid-May, Appellant told AD what it would be like for her to have
sexual intercourse for the first time. Appellant messaged her, “I want to have
sex with you,” and detailed “how it’s going to happen, if it happens.” He told
her, “You’re going to be in pain. It sucks the first time. You bleed, you’re punc-
turing something, [and] you’re putting something in something new. It’s going
to hurt. I’m sorry that it will, but I can’t do anything about it.” Appellant also
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United States v. Whitlock, No. ACM 39379
told her, “I want it to be light so I can see every inch of you and so I can see the
look on your face when our bodies come together.”
In late May, DB saw Appellant kiss AD, and AD told DB about Appellant
touching her. DB confronted Appellant, who denied any wrongdoing with AD.
Appellant tried to convince AD to lie to DB and retract what she had said about
Appellant’s touching and communicating with her, which she refused to do.
II. DISCUSSION
We review sentence appropriateness de novo. United States v. Lane, 64
M.J. 1, 2 (C.A.A.F. 2006). We “may affirm only such findings of guilty and the
sentence or such part or amount of the sentence, as [we] find correct in law and
fact and determine[ ], on the basis of the entire record, should be approved.”
Article 66(c), UCMJ. “We assess sentence appropriateness by considering the
particular appellant, the nature and seriousness of the offense[s], the appel-
lant’s record of service, and all matters contained in the record of trial.” United
States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009) (citations omit-
ted). While we have great discretion in determining whether a particular sen-
tence is appropriate, we are not authorized to engage in exercises of clemency.
United States v. Nerad, 69 M.J. 138, 142–48 (C.A.A.F. 2010).
Appellant asserts the sentence is unjustly severe in light of his decision to
enter into a pretrial agreement and plead guilty, which allowed AD to avoid
having to testify during findings. He notes there was no force or coercion in-
volved in his relationship with AD and he was only 23 years old at the time of
the offenses. He also cites his accomplishments, including a deployment, and
positive performance reports.
We have given individualized consideration to Appellant, the nature and
seriousness of his offenses, his record of service, and all other matters con-
tained in the record of trial. Appellant faced a maximum term of confinement
of 60 years after the military judge found an unreasonable multiplication of
charges and merged three specifications of sexual abuse into one. See Rule for
Courts-Martial 307(c)(4); United States v. Campbell, 71 M.J. 19 (C.A.A.F.
2012). The adjudged sentence included confinement for three years and, pur-
suant to the pretrial agreement, the convening authority approved 30 months.
We find Appellant’s approved sentence of a bad-conduct discharge, confine-
ment for 30 months, forfeiture of all pay and allowances, and reduction to E-1
was not inappropriately severe.
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United States v. Whitlock, No. ACM 39379
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and the sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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