United States v. Apgar

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM 40210
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UNITED STATES
Appellee
v.
Christopher W. APGAR
Senior Airman (E-4), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 10 April 2023
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Military Judge: James Dorman.
Sentence: Sentence adjudged 3 August 2021 by GCM convened at Joint
Base Pearl Harbor-Hickam, Hawaii. Sentence entered by military judge
on 1 September 2021: Bad-conduct discharge, confinement for 12
months, forfeiture of all pay and allowances, and reduction to E-1.
For Appellant: Major Megan E. Hoffman, USAF.
For Appellee: Colonel Steven J. Grocki, USAF; Lieutenant Colonel
Thomas J. Alford, USAF; Major John P. Patera, USAF; Mary Ellen
Payne, Esquire.
Before POSCH, CADOTTE, and MENDELSON, Appellate Military
Judges.
Judge MENDELSON delivered the opinion of the court, in which Senior
Judge POSCH and Judge CADOTTE 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This is an unpublished opinion and, as such, does not serve as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 30.4.
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United States v. Apgar, No. ACM 40210
MENDELSON, Judge:
In accordance with Appellant’s pleas and pursuant to a plea agreement, a
general court-martial comprised of a military judge sitting alone convicted Ap-
pellant of one specification of aggravated assault with a deadly weapon and
one specification of assault consummated by a battery, in violation of Article
128, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 928; and one spec-
ification of violation of a lawful general order, in violation of Article 92, UCMJ,
10 U.S.C. § 892.1 The court-martial sentenced Appellant to a bad-conduct dis-
charge, 12 months of confinement, forfeiture of all pay and allowances, and
reduction to the grade of E-1. The convening authority took no action on the
findings and approved the sentence in its entirety.
Appellant personally raises a single issue on appeal, pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982): whether trial counsel commit-
ted prosecutorial misconduct in the sentencing argument. We find no error ma-
terially prejudicial to Appellant’s substantial rights and affirm the findings
and sentence.
I. BACKGROUND
During Appellant’s providence inquiry, Appellant described his use of the
intoxicating substance dextromethorphan (DXM)2 in violation of a lawful gen-
eral order; his assault with a deadly weapon upon victim DD; and his assault
consummated by a battery upon victim BV. While explaining to the military
judge how he committed the offenses, he apologized for his use of DXM and
expressed regret concerning the assaults on the two servicemember victims,
DD and BV:
I first want to apologize to my unit. I also want to apologize to
the Air Force and anyone else who was impacted by my use [of
DXM]. I now understand there are multiple more healthy ways
to cope and know there is no excuse for using DXM. I am very
sorry I ever chose to use DXM as a coping mechanism.
....
1Unless otherwise specified, all references to the UCMJ are to the Manual for Courts-
Martial, United States (2019 ed.). Pursuant to the plea agreement, three specifications
of assault consummated by a battery and one specification of assault consummated by
a battery upon an intimate partner were withdrawn and dismissed without prejudice,
with prejudice to ripen upon completion of appellate review.
2 DXM is an over-the-counter medication used as a cough suppressant.
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United States v. Apgar, No. ACM 40210
. . . I regret my actions. I wish I could take them back, but I can’t.
I do hope that by pleading guilty I can give [DD] some solace so
he can move forward, and it helps him close this chapter in his
life.
....
. . . While I did intend to make physical contact with [BV], I do
not know why [I] did, and I wish it never happened.
[BV] has been my friend for years and I wish I could take back
my actions that hurt her, but I can’t. Undoubtedly my actions
caused tremendous fear for [BV] as well as [DD]. I hope that by
pleading guilty, as with [DD], I can also give [BV] some solace so
she can move forward and know she never has to speak [to] me
again and close this chapter in her life.
During presentencing proceedings, Appellant chose not to testify or provide
an unsworn statement. In the Government’s sentencing argument, trial coun-
sel commented on Appellant’s statements made during the providence inquiry,
arguing that while Appellant apologized to the Air Force for using DXM, he
never apologized to the assault victims DD and BV:
During his [providence] inquiry, he told the court that he hopes
the victims find solace. He hopes that they are able to find clo-
sure in this. What you didn’t notice in that statement was he
never apologized. He doesn’t say “I’m sorry.” But you can con-
trast with what he said when he’s talking about DXM where he
apologized to the Air Force. So he’s sorry to the Air Force for
using cough medicine but not sorry to the people he attacked?
Your Honor, a strong message needs to be sent to [Appellant].
Trial defense counsel did not raise any objection to this portion of trial coun-
sel’s sentencing argument. However, in the Defense’s sentencing argument,
trial defense counsel argued that Appellant expressed remorse during his prov-
idence inquiry: “In terms of remorse, [Appellant] expressed his remorse under
oath in this very court, and hope for solace. Solace means comfort. That’s what
he hopes for by pleading guilty.”
II. DISCUSSION
Appellant contends trial counsel’s sentencing argument was improper be-
cause “[t]here was no proper foundation . . . that [Appellant] was not remorse-
ful for his actions” and claims “[t]rial counsel’s commentary on [Appellant]’s
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United States v. Apgar, No. ACM 40210
remorse or lack thereof was unfair and inflammatory.”3 The Government con-
cedes error, in that trial counsel “lacked the proper foundation to make the
‘lack-of-remorse toward the victims’ argument,” but maintains the error was
not prejudicial. We find any error did not result in material prejudice to a sub-
stantial right.
A. Law
The issue of “[i]mproper argument is a question of law that we review de
novo.” United States v. Marsh, 70 M.J. 101, 104 (C.A.A.F. 2011) (citation omit-
ted). However, if defense counsel does not object to a sentencing argument by
trial counsel, we review the issue for plain error. Id. (citing United States v.
Erickson, 65 M.J. 221, 223 (C.A.A.F. 2007)). To establish plain error, an appel-
lant “must prove the existence of error, that the error was plain or obvious, and
that the error resulted in material prejudice to a substantial right.” Id. at 106
(citing Erickson, 65 M.J. at 223). Because “all three prongs must be satisfied
in order to find plain error, the failure to establish any one of the prongs is
fatal to a plain error claim.” United States v. Bungert, 62 M.J. 346, 348
(C.A.A.F. 2006).
“The legal test for improper argument is whether the argument was erro-
neous and whether it materially prejudiced the substantial rights of the ac-
cused.” United States v. Frey, 73 M.J. 245, 248 (C.A.A.F. 2014) (quoting United
States v. Baer, 53 M.J. 235, 237 (C.A.A.F. 2000)). Three factors “guide our de-
termination of the prejudicial effect of improper argument: ‘(1) the severity of
the misconduct, (2) the measures adopted to cure the misconduct, and (3) the
weight of the evidence supporting the conviction[s].’” United States v. Sewell,
76 M.J. 14, 18 (C.A.A.F. 2017) (alteration in original) (quoting United States v.
Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005)). “In applying the Fletcher factors in
the context of an allegedly improper sentencing argument, we consider
whether trial counsel’s comments, taken as a whole, were so damaging that we
cannot be confident that the appellant was sentenced on the basis of the evi-
dence alone.” United States v. Halpin, 71 M.J. 477, 480 (C.A.A.F. 2013) (alter-
ation, internal quotation marks, and citation omitted).
“Trial counsel is entitled to argue the evidence of record, as well as all rea-
sonable inferences fairly derived from such evidence.” Frey, 73 M.J. at 248 (in-
ternal quotation marks and citation omitted). “During sentencing argument,
the trial counsel is at liberty to strike hard, but not foul, blows.” Halpin, 71
M.J. at 479 (internal quotation marks and citation omitted). “[T]he argument
3In Appellant’s assignments of error and reply briefs, appellate defense counsel re-
peatedly refers to statements made in Appellant’s unsworn statement. However, Ap-
pellant did not make an unsworn statement. The record is clear that Appellant’s state-
ments were made during the providence inquiry.
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United States v. Apgar, No. ACM 40210
by a trial counsel must be viewed within the context of the entire court-mar-
tial.” Baer, 53 M.J. at 238. “The focus of our inquiry should not be on words in
isolation, but on the argument as viewed in context.” Id. (internal quotation
marks and citations omitted).
When analyzing allegations of improper sentencing argument in a judge-
alone forum, we presume a “military judge is able to distinguish between
proper and improper sentencing arguments.” Erickson, 65 M.J. at 225.
B. Analysis
Because there was no objection during trial counsel’s sentencing argument,
we analyze this issue under a plain error standard of review. Further, because
the Government concedes error in that trial counsel “lacked the proper foun-
dation to make the ‘lack-of-remorse toward the victims’ argument,” we will as-
sume without deciding that the error was clear or obvious. However, we find
that Appellant has failed to demonstrate any material prejudice.
In testing for material prejudice, the first Fletcher factor considers the se-
verity of the misconduct. 62 M.J. at 184. On this matter, we note that the “lack
of a defense objection is some measure of the minimal impact of a prosecutor’s
improper comment.” United States v. Gilley, 56 M.J. 113, 123 (C.A.A.F. 2001)
(internal quotation marks and citation omitted). Here, we find that the com-
ments were minor and relatively insignificant. The comments were not the cor-
nerstone of trial counsel’s argument, as they constituted one paragraph out of
13 pages of the transcribed argument. We also note the comments were made
in the context of trial counsel urging the military judge to sentence Appellant
to 30 months of confinement, where the plea agreement required the military
judge to impose between 6 and 30 months of confinement. Ultimately, the mil-
itary judge sentenced Appellant to 12 months of confinement, which is one in-
dicator of the minimal impact of trial counsel’s comments.
Regarding the second Fletcher factor—curative measures taken—no cura-
tive instruction was necessary because of the judge-alone forum. We note that
military judges are presumed to know and follow the law, absent clear evidence
to the contrary. See United States v. Mason, 45 M.J. 483, 484 (C.A.A.F. 1997)
(per curiam); see also Erickson, 65 M.J. at 225 (noting the presumption that a
military judge is able to distinguish between proper and improper sentencing
arguments). Appellant has presented no evidence that the military judge in
this case was unable to distinguish between proper and improper sentencing
argument.
As to the third Fletcher factor—the weight of the evidence supporting the
sentence—we find this factor weighs heavily in the Government’s favor. The
evidence in this case was strong and uncontested, as it came from Appellant’s
own admissions to the military judge during his guilty plea inquiry and the
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United States v. Apgar, No. ACM 40210
stipulation of fact. Appellant admitted to assaulting two servicemembers, one
with a deadly weapon, and to long-term abuse of an intoxicating substance. In
accordance with the plea agreement, Appellant faced a maximum punishment
that could have included a dishonorable discharge and 30 months of confine-
ment. The adjudged sentence, which included a bad-conduct discharge and 12
months of confinement, fell far short of Appellant’s maximum exposure. We
find the facts and circumstances provide substantial justification to support
the sentence, irrespective of trial counsel’s comments. We conclude that the
weight of the evidence supports the adjudged sentence.
In conclusion, we find that Appellant has failed to meet his burden to
demonstrate that any error resulted in material prejudice to a substantial
right. After considering trial counsel’s comments as a whole, we are confident
that Appellant was sentenced based on the evidence alone. See Halpin, 71 M.J.
at 480.
III. CONCLUSION
The findings and sentence as entered are correct in law and fact, and no error
materially prejudicial to the substantial rights of Appellant occurred. Articles
59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the findings
and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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