The AFCCA affirmed the findings and sentence of Airman First Class Antonio V. Simon, finding no error materially prejudiced Appellant's substantial rights.
Simon opinion here.
Appellant was convicted of five specifications of assault and one specification of communicating a threat. Appellant’s sentence included a bad-conduct discharge, confinement for seven months, reduction to the grade of E-1, and a reprimand.
On Appeal, the Court considered whether: (1) the military judge committed plain error by considering a victim impact statement and failing to identify on the record which portions of the statement he was considering for the purposes of Rule for Courts-Martial (R.C.M.) 1001A; and (2) trial counsel's sentencing argument was improper, amounting to plain error. Finding no error, the Court affirmed the decision.
I. Victim Impact Statements
The Court explained the test regarding the presentation of victim statements is “whether the error substantially influenced the adjudged sentence.” At trial and prior to considering the statements, the military judge asked if there were any objections to the exhibit and defense counsel expressly indicated that he had none. For failing to make their objections, the Court found Appellant “waived his objection to the military judge considering DS's written or oral unsworn statements.”
Here, after evaluating Appellant’s case in light of the four factors from Barker, the Court held that it “[did] not find that the assumed errors substantially influenced the adjudged sentence.”
II. Improper Argument
Appellant further argued that the “statements from trial counsel's sentencing argument were improper.” However, similarly to Appellant's above argument, the Court noted that “defense counsel did not object to any portion of assistant trial counsel's argument.” Therefore, the Court applied Fletcher's plain error analysis: 1) there is error, (2) the error is plain or obvious, and (3) the error results in material prejudice to a substantial right of the accused
In considering error, the Court balanced three factors to assess whether misconduct impacted an appellant's substantial rights and the integrity of his trial: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction. The Court held that Appellant failed to meet his burden. At this, the Court reasoned that taken “as a whole, the third Fletcher factor weighs so heavily in favor of the Government that we are confident that Appellant was sentenced on the basis of the evidence alone.”
At bottom, the Court noted that even if the statements Appellant considered improper constituted palpable error, “Appellant failed to establish that the weight of the evidence did not clearly support the adjudged sentence. Therefore, Appellant failed to meet his burden of establishing plain error and is not entitled to relief.”
Judge Johnson authored the opinion in which Senior Judge Mink and Judge Richardson joined.
The Baker factors require the court to analyze: (1) the strength of the Government's case; (2) the strength of the defense case; (3) the materiality of the evidence in question; and (4) the quality of the evidence in question.
(1) [T]he most aggravating thing about this entire case is just the continuous nature of the assaults and threats. . . . This violence was constant, persistent. And . . . when [Appellant was] not assaulting her, he [was] threatening to do it. (2) Your Honor, when you are thinking about length of confinement in this case, nine months isn't unreasonable, especially when you consider how long this abuse was going on. It started in March of 2017 and extends all the way until February 2018. That is nearly a year of constant instances of violence, constant instances of threats of violence over that entire period. Nine months of confinement is appropriate. (3) What is [sic] continuous assaults worth? A bad conduct discharge that is the only way to characterize his service and it is a punishment he has absolutely earned. (Emphasis added).
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