United States v. Paugh

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM 40231 (f rev)
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UNITED STATES
Appellee
v.
Nathaniel H. PAUGH
Airman First Class (E-3), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Upon Further Review
Decided 5 May 2023
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Military Judge: Colin P. Eichenberger.
Sentence: Sentence adjudged on 25 October 2021 by GCM convened at
Mountain Home Air Force Base, Idaho. Sentence entered by military
judge on 3 December 2021: Bad-conduct discharge, confinement for 11
months, forfeiture of all pay and allowances, and reduction to E -1.
For Appellant: Major Matthew L. Blyth, USAF.
For Appellee: Lieutenant Colonel Thomas J. Alford, USAF; Major Deepa
M. Patel, USAF; Major John P. Patera, USAF; Captain Olivia B. Hoff,
USAF; Mary Ellen Payne, Esquire.
Before JOHNSON, ANNEXSTAD, and GRUEN, Appellate Military
Judges.
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This is an unpublished opinion and, as such, does not serve as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. Paugh, No. ACM 40231 (f rev)
PER CURIAM:
A military judge sitting as a general court-martial convicted Appellant, in
accordance with his pleas and pursuant to a plea agreement, of two specifica-
tions of communicating a threat, four specifications of assault consummated
by a battery, two specifications of domestic violence, and one specification of
stalking, in violation of Articles 115, 128, 128b, and 130, Uniform Code of Mil-
itary Justice (UCMJ), 10 U.S.C. §§ 915, 928, 928b, 930.1 After accepting Appel-
lant’s pleas, the military judge sentenced Appellant to a bad-conduct discharge,
confinement for 11 months, forfeiture of all pay and allowances, and reduction
to the grade of E-1.
I. BACKGROUND
Appellant initially raised three issues on appeal: (1) whether referral of two
specifications of communicating a threat unreasonably multiplied the charges;
(2) whether the record of trial was incomplete because it was missing parts of
two prosecution exhibits; and (3) whether assistant trial counsel made an im-
proper sentencing argument.2
On 7 March 2023, we remanded the record of trial to the Chief Trial Judge,
Air Force Trial Judiciary, for correction under Rule for Courts-Martial (R.C.M.)
1112(d) to account for the two incomplete prosecution exhibits. See United
States v. Paugh, No. ACM 40231, 2023 CCA LEXIS 119, at *2–3 (A.F. Ct. Crim.
App. 7 Mar. 2023) (order). The record is now complete, and issue (2) is moot.
We now turn our attention to the remaining two issues.
II. DISCUSSION
A. Multiplication of Charges
As to issue (1), we find that the record demonstrates that Appellant ex-
pressly waived all waivable motions in his plea agreement and, more specifi-
cally, affirmatively waived any objection to an unreasonable multiplication of
charges during the guilty plea inquiry. Moreover, “an unconditional guilty plea
waives any unpreserved unreasonable multiplication of charges objection.”
1All references to the UCMJ and Rules for Courts-Martial are to the Manual for
Courts-Martial, United States (2019 ed.).
2Appellant personally raised the third issue pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982).
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United States v. Paugh, No. ACM 40231 (f rev)
United States v. Hardy, 77 M.J. 438, 443 (C.A.A.F. 2018). Recognizing the prin-
ciple of law stated in Hardy, we conclude Appellant waived the issue in this
case. We have also evaluated whether to exercise our authority and mandate
under Article 66(d), UCMJ, 10 U.S.C. § 866(d), to act despite Appellant’s
waiver, and determine that such action is not warranted in this case. United
States v. Chin, 75 M.J. 220, 223 (C.A.A.F. 2016). Notably, Appellant concedes
in his brief that dismissal of one of the two charges would “have no impact on
his sentence.” We now turn our attention to issue (3).
B. Improper Sentencing Argument
Appellant claims that assistant trial counsel committed prosecutorial mis-
conduct by engaging in improper sentencing argument. He alleges that assis-
tant trial counsel: (1) argued facts not in evidence; (2) highlighted uncharged
misconduct; (3) personally attacked Appellant; and (4) made a sentence recom-
mendation based on what the victim “deserves.” Trial defense counsel did not
object to any portion of the argument. However, after assistant trial counsel’s
sentencing argument, the military judge, sua sponte, stated,
All right, [the] Court just wants to make clear that it will only
be sentencing [Appellant] for the crimes of which he has been
convicted. To the extent that any of counsel’s argument may
have inferenced evidence which is not before this Court or made
inferences which are not fair inferences from the evidence pro-
vided to this Court, this Court will not consider it. Additionally,
this Court will not base any determination on what the victim
would or would not deserve. The accused is to be punished for
the crimes of which he has been convicted, solely, the Court un-
derstands its responsibility in that regard. To the extent that
trial counsel’s argument may have crossed any of those lines, the
Court will disregard it in its entirety, those portions.
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 the Defense does not object to a sentencing argument by trial
counsel, we review the issue for plain error. Id. (citing United States v. Erick-
son, 65 M.J. 221, 223 (C.A.A.F. 2007)). To establish plain error, an appellant
“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). “[T]he 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).
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United States v. Paugh, No. ACM 40231 (f rev)
“Trial counsel is entitled to argue the evidence of record, as well as all rea-
sonable inferences fairly derived from such evidence.” United States v. Frey, 73
M.J. 245, 248 (C.A.A.F. 2014) (internal quotation marks and citation omitted).
“[E]ither party may comment on properly admitted unsworn victim state-
ments” during presentencing argument. United States v. Tyler, 81 M.J. 108,
113 (C.A.A.F. 2021).
“During sentencing argument, the trial counsel is at liberty to strike hard,
but not foul, blows.” United States v. Halpin, 71 M.J. 477, 479 (C.A.A.F. 2013)
(internal quotation marks and citation omitted). “[T]he argument by a trial
counsel must be viewed within the context of the entire court-martial.” United
States v. Baer, 53 M.J. 235, 238 (C.A.A.F. 2000). “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).
“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.” Frey, 73 M.J. at 248 (quoting Baer, 53 M.J. at 237). Three factors “guide
our determination of the prejudicial effect of improper argument: ‘(1) the se-
verity 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 con-
sider 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 evidence alone.” Halpin, 71 M.J. at 480 (alteration, internal quotation
marks, and citation omitted).
“[T]he 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) (quoting United States v. Carpenter, 51 M.J. 393, 397 (C.A.A.F.
1999)).
In a military judge alone case we presume “that [a] military judge is able
to distinguish between proper and improper sentencing argument.” Erickson,
65 M.J. at 225.
We need not determine whether assistant trial counsel plainly erred during
sentencing argument because Appellant cannot demonstrate that any error
would have resulted in material prejudice to a substantial right. Here, the sen-
tencing authority was a military judge, sitting alone. Military judges are pre-
sumed to know the law and to follow it absent clear evidence to the contrary.
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United States v. Paugh, No. ACM 40231 (f rev)
Id. (citing United States v. Mason, 45 M.J. 483, 484 (C.A.A.F. 1997)). In this
case the military judge confirmed this presumption by sua sponte stating on
the record, inter alia, that he would only consider proper argument by counsel.
Furthermore, there is nothing in the record to suggest that the military judge
was biased or in any way improperly swayed by assistant trial counsel’s sen-
tencing argument. After weighing the Fletcher factors, we are confident that
the military judge properly sentenced Appellant on the basis of the evidence
alone. Erickson, 65 M.J. at 224.
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. Ar-
ticles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the find-
ings and the sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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