The NMCCA affirmed the findings and sentence of SSgt William J. Scott, finding Appellant's substantial rights were not materially prejudiced.
Scott opinion here.
Appellant, Staff Sgt. William J. Scott, was convicted of two specifications of attempted sexual assault of a child and one specification of attempted sexual abuse of a child in violation of Art. 80, UCMJ. Appellant asserted 4 assignments of error: 1) The evidence was not factually sufficient because the government did not prove beyond reasonable doubt Appellant was not entrapped; 2) Appellant received ineffective assistance from his trial defense counsel - his civilian lead defense counsel, Mr. Charlie; and his detailed military defense counsel, Capt. Lima—and his substitute post-trial military counsel, Capt. Oscar; (3) Capt. Lima was improperly excused at trial; and (4) the charges of which he was convicted were unreasonably multiplied. In a unanimous opinion, the Court affirmed the sentence.
Appellant alleged the evidence was factually insufficient to overcome entrapment because his message (“hey”) was sent to the instant messenger group as a whole, not privately to the NCIS agents account. Further, Appellant argued that he had no predisposition to commit the offense because the NCIS agents account (“Marie”) privately initiated a conversation with the Appellant. The Court concluded that a person with no predisposition to commit these offenses could have easily cut off communication after learning the other party was underaged. Additionally, because the NCIS account offered no extraordinary inducement to the Appellant, coupled with Appellants reluctance and willingness to meet the “Marie”, the Court concluded the evidence showed beyond a reasonable doubt Appellant’s predisposition to commit the offense and that the Appellant was not entrapped.
2. Appellants defense counsel was competent at trial
Appellant contended that: 1) His counsel had a fundamental lack of understanding of the evidence because he failed to request expert assistance; 2) that they failed to review Defense exhibits before they were presented to members, and; 3) neither of his TDC submitted clemency on his behalf. The Court found that: 1) There was no concrete evidence that Appellant had suffered any prejudice by not having an expert witness; 2) that failure to review defense exhibits provided members with very little inflammatory material; 3) the court did grant a deferral for the reduction in Appellants rank and forfeitures, and that more clemency would have been awarded if requested. Therefore, there was insufficient evidence to demonstrate there was any sort of prejudice to the Appellant.
3. There was no prejudice of Appellant’s substantial rights as a result of Capt. Lima’s
Appellant argued Capt. Lima was improperly excused from trial. Because Appellant had consented to the withdrawal, as well as having continued counsel after Capt. Lima’s withdrawal, the Court concluded that this did not prejudice the Appellant.
The Court did not find merit in issue 4 pursuant to United States v. Matias, 25 M.J. 356, 363 (C.M.A. 1987).
Opinion authored by Judge Stephens, joined by Judges Crisfield and Lawrence.