IN THE UNITED STATES ARMY
COURT OF CRIMINAL APPEALS
U N I T E D S T A T E S,
Appellee
BRIEF ON BEHALF OF APPELLEE
Docket No. ARMY 20040087
v.
Tried at Camp Humphreys, Korea
Sergeant
PHILLIP R. BLACK
United States Army,
Appellant on 21 November, 9 and 19
December, and 21-23 January
2004, by a general court-martial convened by the Commander, 19th
Theater Support Command,
Lieutenant Colonel Edward J.
O’Brien, military judge, presiding.
TO THE HONORABLE, THE JUDGES OF THE
UNITED STATES ARMY COURT OF CRIMINAL APPEALS:
Statement of the Case
Pursuant to his pleas (R. 82, 184, 198-199) 1 , appellant was found guilty of indecent acts (three specifications), adultery on divers occasions, false official statement, and disobeying a command of a superior commissioned officer in violation of
Articles 134, 107, 90, Uniform Code of Military Justice, 10 U.S.C.
§§ 934, 907, and 990 (2002)[hereinafter UCMJ](R. 791).
2
Contrary to his pleas, appellant was convicted of rape, extortion, assault (four specifications), false official statement, larceny, and communicating a threat in violations of
1 Based solely on the offenses to which appellant pled guilty, he faced a maximum possible punishment of a dishonorable discharge, confinement for twentysix years, forfeiture of all pay and allowances and reduction to E-1 (R. 195).
2 Appellant was found not guilty of assault on divers occasions, not guilty of one specification of violating a lawful general regulation, and not guilty of one specification of wrongfully communicating a threat.
Panel No. 2

Articles 120, 127, 128, 107, and 134 Uniform Code of Military
Justice, 10 U.S.C. §§ 920, 927, 928, 907, and 934
(2002)[hereinafter UCMJ](R. 791).
3
The military judge sentenced appellant to a dishonorable discharge, sixteen years confinement, forfeiture of all pay and allowances, reduction to E-1, and a $50,000.00 fine (R. 820). The military judge also sentenced appellant to “pay the United States a fine of $50,000 and to serve additional confinement of four years of confinement if the fine is not paid by the time the convening authority takes action” (id.). On 24 January 2005, after receiving the results of an indigency hearing, the convening authority approved the sentence as adjudged but limited the additional confinement for appellant’s failure to pay the fine to forty-two months (Action).
Introduction
Specialist (SPC) Anita Jones and Private First Class (PFC)
Raylenea Smith, two Soldiers stationed at Camp Humphreys, Korea, with appellant, both became entangled in his web of sex, lies, videotapes, and violence (R. 226). On 1 July 2003, PFC Smith reported appellant raped her. The Government thereafter
3 The military judge dismissed one specification of wrongfully committing indecent acts on divers occasions (Specification 4 of Charge IV) and one specification of breaking restriction (Specification 1 of Additional Charge
IV)(R. 81), both in violation of Article 134, UCMJ.
2

discovered a litany of other offenses appellant committed against both persons and property.
Statement of Facts
Joining the Army at age nineteen, SPC Jones reported to Camp
Humphreys on 22 May 2001 (R. 406). Meeting appellant soon afterwards, the two began dating in June, 2001 (R. 407-408).
Four months later appellant began acting violently towards her (R.
409).
4 Continuing their relationship despite appellant’s abusive behavior, in October 2002, the two took leave together to visit appellant’s family in the United States (R. 410). While visiting appellant’s family in Florida, SPC Jones and appellant married on
17 October 2002 (R. 412, PE 5).
5 Keeping their marriage a secret at appellant’s request (R. 412), they enjoyed a “decent relationship” until May 2003 (R. 413).
4 Pursuant to his pleas, appellant was acquitted of various assaults against SPC
Jones occurring between 22 September 2000 and 17 October 2002 (Specification 1 of Charge III).
5 Appellant’s personal life is a difficult labyrinth to navigate. Appellant entered active-duty in 1991 (Prosecution Exhibit (PE) 42). Stationed in Germany in 1994, appellant and a German national named Susan Prince (Savage) had a son named Shawn Tyrone Prince (PE 13). Appellant never married Ms. Prince and she later sought back due child support from him (id.). On 28 December 1997, appellant married Staff Sergeant (SSG) Lakeshia Johnson, an active-duty soldier stationed in Germany (PE 15, R. 601-602). The two had no children, never lived together, and divorced on 16 March 2001 when SSG Johnson was then at Fort
Huachuca and appellant was in Korea (PE 16). Meanwhile, back on 16 July 1998, while stationed at Fort Bragg, North Carolina, appellant fathered two twin sons,
Jawan Black and Jamere Black with a woman named Leslie Washington, whom appellant never married (PE 14, R. 408). During this time frame appellant was also living with PFC Lakeshia Alford (later Odom), whom he was convicted of threatening and assaulting (Additional Charges V and VI). Finally, appellant dated a woman named Aiesha Davis while stationed at Fort Bragg, never married her, never fathered any children with her (PE 36). After appellant divorced SSG
Johnson and while dating SPC Jones, he lied on an application to reside offpost, claiming Aiesha Davis was his spouse and she was coming to live with him in July or August 2001 (PE 29).
3

PFC Smith met appellant after arriving in Korea in August
2002 (R. 227-228). Ironically, appellant served as her unit’s training, equal opportunity, and urinalysis NCO (R. 228). Prior to January 2003, the two had no special relationship, although appellant expressed his attraction to PFC Smith to others (R.
229). Around February or March 2003, however, appellant began paying her more attention, ultimately asking her if she wanted to have a sexual relationship with him and his “girlfriend”, SPC
Jones (R. 229-230).
According to appellant, SPC Jones noticed PFC Smith and thought she was attractive. Since appellant and SPC Jones “talked about having a threesome with another female” appellant hoped PFC
Smith would be interested (R. 229). Declining appellant’s offer of sexual relationship, PFC Smith later did agree to become their
“friend” and “just go out to dinner” with them (R. 230-231).
After taking them out to dinner one evening, appellant brought SPC
Jones and PFC Smith back to his apartment. Showing PFC Smith the cover of a pornography movie, appellant and SPC Jones began asking her provocative questions about sex, played the game “truth or dare,” and then they had a threesome (R. 232).
Afterwards, PFC Smith became close friends with appellant and
SPC Jones (R. 233). Confiding her family problems and personal relationships, even telling appellant how one of her cousins had
4

trouble with drugs, their relationship grew (R. 233).
6 Between
April and May 2003, PFC Smith had four to five additional sexual liaisons with appellant and SPC Jones (R. 233-234). She also had sexual intercourse several times with only appellant, all taking place without SPC Jones’s knowledge (R. 234).
The Dragon Hill Lodge incident
As an active relationship developed between appellant, his wife SPC Jones, and PFC Smith, appellant suggested PFC Smith spend
Memorial Day weekend with them in Seoul at the Dragon Hill Lodge
(R. 235).
7 After checking into the hotel on Saturday, 24 May 2003
(PE 1), the three had another sexual rendezvous before going to a party (R. 236, 415). That evening, appellant became upset with
PFC Smith because she played video games with and showed attention to another man (R. 237). Accordingly, appellant told her to leave
(id.). After packing her bags and beginning to leave the room, appellant changed his mind and asked PFC Smith to stay (id.).
The next day, Sunday, 25 May 2003, the three went sightseeing
(R. 237). Returning to the Dragon Hill Lodge in the evening, SPC
6 PFC Smith had a troubled background. Her father was murdered when she was five years old “over drugs and . . . a racial issue” (R. 227). Appellant incessantly attempted to discredit PFC Smith, as he did with some of his other victims, by accusing her of being a drug dealer. CID Special Agent John Lemke, a seasoned narcotics investigator, seriously pursued appellant’s allegations and found them all meritless (R. 370, 385-386, 531).
7 The Dragon Hill Lodge is a facility well known to all Soldiers in Korea. The
“Dragon Hill” or “Dragon” as it is commonly referred to, is derived from the
Korean words “Yong” (Dragon) and “San” (Mountain) because it is located on the grounds of the Yongsan Army Garrison in Seoul. A five-star hotel offering rooms on a space available basis at reasonable rates, shops, restaurants, and a fitness center, the Dragon Hill Lodge is a central meeting place for Soldiers
5

Jones and PFC Smith began fondling each other on the bed while appellant appeared to be napping on the couch (R. 238, 415).
8
After ten minutes, SPC Jones and PFC Smith went to sleep and appellant got on the bed with them (R. 240). Waking up soon afterwards, PFC Smith heard appellant and SPC Jones arguing (R.
241). Appellant was angry because SPC Jones and PFC Smith “were being sexually intimate and leaving him out” (R. 416).
Telling the two he was leaving, appellant soon began arguing with SPC Jones again, spat in her face, and spat in PFC Smith’s face (R. 241-242, 416). SPC Jones spat back at appellant (R. 241,
416). Grabbing SPC Jones by the throat, appellant pushed her against the bed and began choking her (R. 241-242, 416).
“Gritting” his teeth and “convulsing” his face, appellant, acting
“mad” and “crazy” began repeating “I will kill you, you know I will kill you” (R. 242-243, 417). Trying to respond, SPC Jones replied, “I know” (R. 242, 417).
Finally releasing her after thirty-five to forty seconds, appellant went to the kitchen (R. 417). Getting a knife and returning to the bedroom, appellant began grabbing SPC Jones and pushing her up and against the wall while holding the knife to her throat and choking her (PE 2, R. 243-244, 419). With her feet who go to Seoul on leave or pass as well as those already stationed at the
Yongsan Garrison. http://www.dragonhilllodge.com
8 On previous occasions, appellant had encouraged the two to fondle each other while the three had sex together (R. 240).
6

barely touching the floor since appellant was pushing her off the ground (R. 419), appellant repeated his mantra every fifteen seconds, “I’ll fucking kill you. I’ll fucking kill you” (R. 244).
Briefly releasing her, appellant paced back and forth, before choking SPC Jones again and putting the knife to her throat (R.
245).
Fearfully watching the assault, PFC Smith, sitting on the bed, was shocked when appellant suddenly turned around and tried to stab her (R. 245-246, 420). After barely missing her leg, appellant pulled the knife from the mattress, put it back in SPC
Jones’s face and began arguing again (R. 247, PE 4).
9 Lashing out at SPC Jones and PFC Smith, appellant accused them of having
“fucked him” (R. 247). Telling them they were “fucking done” and
“he didn’t care anymore”, appellant also stated they “should have never fucked with him”, that “he would fuck [their] lives up”
(id.).
Thrown into his frenzy because SPC Jones and PFC Accord’s earlier fondled each other without his participation, appellant’s anger gradually subsided after regaining control of the situation and he became sexually aroused. Accordingly, appellant told SPC
Jones and PFC Smith to caress each other (R. 253, 420). After
9 Searching room 411 of The Dragon Hill Lodge on 10 July 2003, SA Lemke removed all the bedding, inspected the mattress, and discovered a cut in its lower corner which went all the way through the mattress to its metal springs (R. 376,
378, PE 37).
7

appellant directed the two to touch or kiss, PFC Smith felt mocked and disgusted (R. 253). Appellant then got into bed with the two and after the three had sex they all went to sleep (id.).
While shopping together the next day, SPC Jones and PFC
Accord “talked about what happened” (id.). After picking them up and returning to the Dragon Hill Lodge, appellant had “another argument” with the two (R. 254). Angrily, he told them to pack their bags because they were leaving (id.).
10 After collecting their belongings, and checking out just before midnight
(PE 35), appellant began driving them back to Camp Humphreys.
11
Driving back, appellant continued behaving aggressively (R.
255, 421). Weaving in between cars, swerving, yelling, and grabbing SPC Jones, appellant’s actions terrified PFC Smith who desperately wanted to get out of his car. When PFC Smith asked appellant to let her out, he responded, “why should I let you out, give me a good reason to let you out” (R. 256). After finally bringing her back to her barracks, appellant apologized to PFC
Smith, telling her, “I will never hurt you. We need to talk about this. Don’t be scared of me” (id.). PFC Smith told appellant she did not want to see appellant again or be involved with him and
SPC Jones (R. 257).
10 The three were not supposed to leave until the following day (R. 254). Their early check out is confirmed by hotel records (PE 35).
11 Camp Humphreys is approximately 50 miles from Seoul. Roads in Korea, especially highways, are notoriously congested with traffic and dangerous to drive on (“Getting around,” http://area3.korea.army.mil).
8

Extortion
A few days later appellant called PFC Smith, trying to rekindle his dysfunctional relationship with her (R. 258).
Following her around the base, telling her he wanted to be with her, and accusing her of “giving up on him,” appellant persistently sought PFC Accord’s attention (id.). Achieving no results from his efforts, appellant started threatening PFC
Accord. He said, “I have a video and I will tell your friends that I had sex with you and you had sex with my girlfriend” (R.
260).
Asserting his purported authority over her, appellant ordered
PFC Smith’s roommate to allow him into her barracks room on occasions when PFC Smith was not there (R. 260-261). Seeking to placate appellant and worrying about him disseminating a lurid sex video of her, PFC Smith reluctantly went to appellant’s apartment and had sex with him on two occasions while SPC Jones was on leave
(R. 261-262). Complying with appellant, PFC Smith never told SPC
Jones about these sexual encounters (R. 263).
Appellant continued pursuing PFC Smith during the month of
June 2003, despite her not wanting “to have anything to do with him” (R. 264). Always calling PFC Smith and bothering her, appellant would not leave her alone (R. 264, 265). Telling her he wanted her to be his girlfriend, wanted to be with her, that she
“gave up on him” and “was fucking him over” because she did not
9

want to be with him, appellant also continued threatening her with release of the purported sex video (id.).
12
The Rape
On Sunday, 30 June 2003 while in his car parked in PFC
Smith’s company area, appellant raped PFC Accord.
13 That evening, while watching a movie with her friend PFC Donald Alexander, appellant called PFC Smith, telling her to meet him outside because he had a “movie” of hers (R. 268). After hanging up the phone, PFC Smith left PFC Alexander’s room, went down the hallway, and looked out the window for appellant’s car (id.). Not seeing his car, she turned around and then saw appellant coming out of her barracks room (id.). Scared and surprised, PFC Smith concluded appellant had been in her kitchen area when he calling her, only pretending he was in his car (R. 269).
“You are fucked. You are fucking dead. You fucked me over.
I am going to fuck you up your whole life. You are fucking dead,” appellant yelled at PFC Smith while he stood in the hallway of her barracks (id.). PFC Smith spoke briefly to PFC Alexander in the hallway before the two stepped into her room. Immediately, appellant called PFC Smith (R. 269-270). Telling her he was going to call the sergeant-major and “everybody he knew,” appellant
12 PFC Smith believed appellant might actually have a videotape of her having sex because appellant kept a video camera in his bedroom pointed over the bed (R.
267).
10

began stating names of people to whom he would give the PFC Smith sex-video (R. 270). PFC Alexander overheard appellant’s remarks
(R. 573). Also threatening to tell the staff duty NCO that PFC
Smith had a male in her room, appellant told PFC Smith he would say she had drugs, and tell everyone about them having sex (R.
270).
After hanging up the phone on him, appellant began pounding on PFC Smith’s door, demanding she let him in, and threatening to yell down the hall about them having sex (id.). When PFC Smith reluctantly cracked her door open, appellant barged in (R. 270).
With a “hideous smile” on his face (R. 271), appellant told PFC
Alexander, “hey I don’t know what is going on between you and her but we have been having sex together and she has had sex with me and my girlfriend. I got it on tape. If you want to see it, I’ll show it to you . . . Yeah, I fucked her” (R. 270). After finally leaving PFC Smith’s room, appellant then called her again immediately (R. 272).
Explaining he was downstairs, appellant informed her that she had three minutes to stop appellant from telling the Emergency
Operations Center (EOC) about the videotape, about a male being in her room, and about drugs (id.). Accordingly, if she weren’t outside in three minutes to stop him, appellant again reminded PFC
13 Although the two had sex before in appellant’s car, PFC Smith never had sex with him in the parking lot of her company area and never thought he would try such a thing (R. 272).
11

Smith, she would be “fucking dead,” and her “life was over” (R.
272).
Leaving the barracks around 0100 hours, PFC Smith went to find appellant. Confronting her on the street, appellant began threatening PFC Smith with releasing the videotape, saying he was the EO representative and he could “work the system” (R. 273,
275). Bragging about all the people he knew, appellant told PFC
Smith “nobody is going to believe” her (R. 274). According to appellant, because PFC Smith “fucked him over . . . he was going to fuck over [her] whole life, [her] family’s life . . . [her] military career . . . and she was fucking done” (id.).
Rattling off the names of several people, appellant then called his friend and appellant’s squad leader, Staff Sergeant
(SSG) Shafford Campbell (id.). Appellant, toying with PFC Smith who watched in fear about what appellant might reveal, asked SSG
Campbell if he was going to be up for a while and told him he would call him back later (id.).
14 Continuing to invoke his official position, naming all the officers and important people he knew, appellant continued with his diatribe for over ninety minutes (R. 276). Finally, appellant told PFC Smith to get in his car and if she did so, he would give her the videotape (id.).
14 SSG Campbell corroborated this incident (R. 529-530) and also explained how hours later, appellant called him back with PFC Smith nearby, telling him something about PFC Smith “and some ecstasy” (R. 531). SSG Campbell responded,
“She is grown. She knows the consequences of it. And do what you have to do
Sergeant” (R. 531).
12

Reluctantly, PFC Smith stepped into appellant’s gold-rimmed, black-tinted windowed car, which was parked in a poorly lit area
(R. 277). Angry with PFC Smith because she did not close the passenger side car door completely, he demanded she shut it (id.).
Questioned by appellant about whether she wanted to be with him or with SPC Jones, PFC Smith responded she wanted to be with neither of them (R. 278).
Appellant told PFC Smith she was “disrespecting [SPC Jones] by doing this” (id.). “You need to learn to do things you don’t want to do,” appellant told PFC Smith in a “low . . . really, really serious” tone, five or six times (R. 278, 279). After asking appellant, “what are you talking about? What do you want me to do?” appellant replied, “it doesn’t matter what I want to do.
If I tell you to do something, you are going to do it” (R. 279).
After listening to appellant continually repeat this mantra, PFC
Smith “started to get really, really nervous, really scared because [she] did not want to be there” (id.). Terrified to leave, PFC Smith thought appellant was capable of “anything” (R.
280).
Appellant ordered PFC Smith to take her shoes off (R. 280).
Discerning appellant’s intent, she refused (id.). “Please don’t make me do this,” “Don’t do this to me, please,” PFC Smith repeated “over and over again” (R. 281). Growing angrier, appellant demanded, “take off your shoes” (id.). Reluctantly, PFC
13

Smith complied after appellant told her he would remove them if she did not (R. 281-282). Appellant then told PFC Smith to take off her pants (R. 281). “No,” PFC Smith responded. “I don’t want to take my pants off . . . why are you doing this? Why do you keep doing this?” (id.). Instead of answering her, appellant just kept repeating, “take off your pants” (id.). After untying the string on her pants, PFC Smith continued begging appellant “don’t do this please” (R. 282). Appellant pulled her pants down and told her to take them completely off (id.). After her pants came off, PFC Smith tried to cover herself with a sweater and continued begging appellant “don’t do this” (R. 282-283). Appellant responded with his refrain, “you need to do things you don’t want to do” (R. 283). Appellant ordered PFC Smith to get in the backseat of the car, and she complied (id.). Appellant then told
PFC Smith to prop her feet up on each side of the front seats
(id.). “No, I don’t want to,” PFC Smith responded (id.). “Do it,
Raylenea, just do it” appellant said, before putting her feet higher on the seats and spreading her legs open (R. 283-284).
After pushing her legs apart, appellant orally sodomized PFC
Smith for fifteen to twenty seconds (R. 284). Trying unsuccessfully to close her legs and push appellant off of her, appellant would not relent (R. 284-285). In order to get appellant to stop, PFC Smith decided to fake having an orgasm (R.
285). Undeterred, appellant climbed into the backset and for
14

several seconds told PFC Smith, “I want to feel you. I want to be inside of you just one time. I want to be in you” (id.). “No,”
PFC Smith responded (id.). Appellant, unhappy with her answer, told PFC Smith to “just do what I say” (R. 286). Pulling his pants down his legs, appellant made clear to PFC Smith that she
“didn’t have a choice” about this matter (id.). Picking her up, appellant penetrated PFC Smith’s vagina with his penis (id.).
Feeling “sick” (R. 287), PFC Smith tried unsuccessfully to pull away and fight off appellant (R. 286-287). With appellant already inside her, a car drove into the parking lot and PFC Smith managed to move away from appellant at that point (R. 287-288). Getting into the front seat, PFC Smith got her pants back on, put on a shoe, and got out of the car (R. 288).
The aftermath
Driving up to her as she walked towards her barracks, appellant told PFC Smith she had until 0800 hours the next day “to figure out what [she was] going to do because he was going to do whatever he had to again” (id.). Calling PFC Smith the next day, appellant continued threatening to expose the videotape unless PFC
Smith stayed with him (R. 290). “I don’t care. Leave me alone,”
PFC Smith responded (id.). Calling her at work that day, appellant told PFC Smith she would have to have sex with him every
Monday until she left Korea twelve months later for him not to release the videotape (R 291). When PFC Smith refused, appellant
15

again told her she was “fucking dead” and “done”, he would tell her platoon sergeant, and he was going to the helicopter hangar where she worked (R. 292).
Scared, PFC Smith hid near the flight line with her colleague
SPC Daniel Klodzinksi while appellant continued with his threats over the phone (R. 293). “You aint’ got nothing, Smith. You aint’ got nothing. I have a tape, I have a fucking tape,” SPC
Klodzinski overheard appellant say (R. 517). Later that day after other Soldiers became aware of PFC Smith’s concerns, appellant told her, “you don’t know who the fuck I am. You don’t know who you are messing with. Don’t fuck with me. I know all these people . . .” (R. 298).
The investigation begins
Growing sick of appellant badgering her, PFC Smith reported everything to her chain of command three days later (R. 302), and provided multiple and consistent statements to the Army Criminal
Investigation Division (CID) (R. 370). Appellant lied to CID, claiming he never assaulted SPC Jones or PFC Smith and denying the rest of the allegations (PE 25). CID Special Agent (SA) John
Lemke and SA Todd Howell obtained appellant’s consent to search his apartment after taking his statement and conducted the search with him present on 3 July 2003 (R. 370-371, 384). Consistent with what PFC Smith told them, they found a video camera in
16

appellant’s bedroom set up on a tripod (R. 371-372, PE 3).
15
Besides finding “pornographic materials” and “other sexual items,”
SA Lemke and SA Howell found appellant’s marriage certificate to
SPC Jones (R. 373-374, PE 5).
This marriage certificate raised a red flag because when SA
Howell booked appellant, appellant lied and told SA Howell he was married to a civilian who lived in the United States (R. 395).
Accordingly, SA Lemke and SA Howell called appellant over and again asked him about his marriage (R. 375). Appellant again lied and told them his wife was named “Lakeshia.” SA Lemke responded
“we, obviously, have more to talk about” (R. 375, 393).
16
Appellant’s unit commander subsequently transferred him to
Yongsan Army Garrison and on 9 July 2003 ordered him to have no contact with SPC Jones or PFC Smith (PE 10, Charge Sheet at
Additional Charge II and its Specification). On 4 September 2003, appellant’s chain of command revoked his pass privileges and restricted him to Yongsan Garrison (PE 11). On 20 September 2003, appellant disobeyed these orders and went from Seoul to Camp
Humphreys to make a “surprise visit” to SPC Jones.
17 Afterwards,
15 Finding it “unusual” that “the record light in front of it had been marked out and taped over,” (R. 372), SA Lemke concluded it was “possible that a person could be taped and never see a red light or any tope of record light on” (R.
373).
16 Those facts relevant to the charges of false official statement and larceny of
BAH are discussed infra, in the Government’s response to Assignment of Error
VII.
17

he told his subordinate, SPC Joshua Allen, “he was seen at place he was not supposed to be seen . . . and if somebody asked me to say I was with him” (R. 594).
Assaults against PFC Alford
Unfortunately, SPC Jones and PFC Smith were not the only women appellant attacked, strangled, and threatened with exposure of an alleged sex-video. PFC Lakeshia Alford (later Odom) met appellant in August 1998 (R. 535). While working as a cocktail waitress at a club in Fayetteville, North Carolina, PFC Alford enlisted in the Army through the delayed entry program (id.).
Working part-time as a dancer at the same club, appellant came three days in a row to pursue PFC Alford (R. 536). She was unaware appellant just had twin sons born the month before with
Leslie Washington. Further, PFC Alford was unaware of appellant’s current marriage to Lakeshia Johnson. At that time, appellant also had a girlfriend named Aiesha Davis. PFC Alford then believed appellant was interested in her and was a “nice guy”, so she called appellant back (id.).
Entering the Army the following month, PFC Alford’s relationship with appellant progressed as he wrote her letters in basic training and called her mother to check up on her (R. 537).
After AIT and Airborne School, PFC Alford, still completely
17 The military judge found appellant not guilty of threatening and assaulting
SPC Jones on this occasion (Charge Sheet at Specification 1 of Charge III,
18

ignorant of appellant’s complicated relationships, came “back to
Fort Bragg to be with” appellant (id.). Picking her up at the reception station after she arrived at Fort Bragg, PFC Alford stayed with appellant and began dating him. Appellant soon suggested they move in together (R. 538).
Moving in with appellant around May or June, 1999, PFC Alford soon grew suspicious as she “kept finding out different things about him” (R. 538-539). Their relationship soon became violent
(R. 539). Although PFC Alford sought to break up with appellant
“many times”, she finally decided to end the relationship when appellant went to the field between January and February 2000 (R.
542). Not taking her decision well, appellant continued to call her and “make appearances” at her barracks room (R. 543). Coming into her barracks room without her permission, appellant took her lingerie out of her drawer, put coffee in her shoes and stole her glasses (id.). During this time, PFC Alford began dating Sergeant
First Class (SFC) Steven Odom, whom she later married (R. 544).
Calling PFC Alford on her cell phone while she was at a friend’s cookout with SFC Odom, appellant demanded to know her location (id.). Threatening PFC Alford, telling her he hated her and wished she was dead, PFC Alford thought appellant sounded serious when he told her “he would kill [her] and all those different things” (id.). SFC Odom overheard appellant say these
Additional Charge III and its Specification, Additional Charge IV and its
19

things (R. 560). One day at the end of May, 2000 appellant called
PFC Alford while she and SFC Odom finished eating dinner (R. 544).
Telling PFC Alford she and SFC Odom made a “really nice couple,” appellant told her if she did not come to see him by the end of the day he would come knocking on SFC Odom’s door (R. 545).
Arriving at SFC Odom’s door, appellant, upset and crying told SFC
Odom, who just started dating then PFC Alford, “she spent the night at my house last night. You know, we have sex” and other such things (R. 560-561). Later that night, because SFC Odom told her to straighten things out with appellant and because PFC Alford thought appellant might “need some closure in the relationship”, she went to his house (R. 546).
Asking PFC Alford to sleep over, appellant told her she could stay on the couch and “he wouldn’t touch [her]” (id.). Soon afterwards, however, appellant began fondling PFC Alford and asking her to have sex with him (R. 547). She refused (id.).
After falling asleep on the couch, PFC Alford awoke ninety minutes later and realized appellant was gone and he had taken her keys
(id.). Afraid to call her unit since they had ordered her to stay away from appellant because he had been stalking her, PFC Alford waited for appellant to return. Arriving back at 0300 hours, appellant wanted to have sex again, and had a video camera with
Specification).
20

him (id.). Refusing to have sex with him, appellant become upset and “started saying the “F” word a lot” (R. 548).
PFC Alford gathered her belongings and tried to leave. While screaming and yelling, appellant went to the kitchen and grabbed a knife (id.). Pushing PFC Alford against the wall with the knife touching her neck, appellant, crying and upset, told her he would
“f’ing kill” her (R. 548-549). PFC Alford fully believed appellant’s threat because of “the expression on his face” and
“the way he looked” (id.). She had never seen appellant that upset before (R. 549). Appellant took the knife and stabbed it into the wall next to her, just as he had years later stabbed the mattress PFC Smith sat on (R. 245-247, 420, PE 4). PFC Alford, not wanting appellant to kill her, thought she could reason with him (R. 549).
While trying to reason with him, appellant informed PFC
Alford, just like he did later to PFC Smith, he had a videotape of the two of them having sex and which he would show it “to whoever” if she tried to leave him (id.). PFC Alford, grabbing her keys and appellant’s video camera, attempted to run out of appellant’s house (R. 550). Blocking her from leaving, the two ended up wrestling for the video recorder on the couch (id.). Taking one of the pillows from the couch, appellant began smothering PFC
Alford so she could not breathe (id.).
21

Praying to God to forgive all her sins and the wrong things she had done in her life, PFC Alford “didn’t think [she] was going to make it through that day” (R. 549). Finding strength from somewhere, she managed to push appellant away (id.). Screaming, with appellant pulling her back, PFC Alford managed to flee from appellant’s home (R. 551). PFC Alford went to sick call the next morning (id.). Appellant called one of PFC Alford’s NCOs, reporting she had been in his home and broken some of his belongings (id.). Filing a complaint against appellant afterwards in civilian court, PFC Alford obtained a restraining order against him (R. 552, 557).
18 Additional facts necessary to respond to appellant’s assignments of error are contained in the argument sections below.
Answers to Assigned Errors and Argument
I
THE EVIDENCE IS LEGALLY AND FACTUALLY
INSUFFICIENT AS TO THE FINDING THAT APPELLANT
WAS GUILTY OF RAPING PFC SMITH (CHARGE I AND
ITS SOLE SPECIFICATION).
Standard of Review
The standard of review for questions of both legal and factual sufficiency is de novo. Ryder v. United States, 515 U.S.
18 On 13 April 2000, appellant made a false official statement when he lied on his reenlistment contract and denied having been arrested (R. 188)(Charge Sheet at Additional Charge I and its Specification). However, since appellant testified he was arrested for an “alleged assault” on 18 December 1997 (R. 194), it is unclear whether this assault was against Ms. Odom, or if appellant was just confused about the date or the victim.
22

177, 187 (1995); Weiss v. United States, 510 U.S. 163, 168 (1993);
United States v. Najera, 52 M.J. 247 (C.A.A.F 2000).
Law
The test for factual sufficiency is whether, "after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, the members of this
Honorable Court are themselves convinced of the accused's guilt beyond a reasonable doubt." United States v. Turner, 25 M.J. 324,
325 (C.M.A. 1987). Regarding inquiry into the factual sufficiency of the evidence, this Court should give a great degree of deference to the trier of fact who, unlike this Court, had the incalculable benefit of seeing and hearing the witnesses when making credibility determinations. United States v. Pabon, 42
M.J. 404 (C.A.A.F 1995). The test for legal sufficiency is
"'whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'"
Pabon, 42 M.J. at 405 (1995), cert. denied, 116 S.Ct. 780 (1996)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)(emphasis in
Pabon)).
In resolving questions of legal sufficiency, this Court is
"not limited to Appellant's narrow view of the record." United
States v. Cauley, 45 M.J. 353, 356 (1996) (citing United States v.
23

McGinty, 38 M.J. 131, 132 (C.M.A. 1993)). To the contrary, this
Court is bound to draw every inference from the evidence of record in favor of the prosecution." McGinty, 38 M.J. at 132 (quoting
United States v. Blocker, 32 M.J. 281, 284 (C.M.A. 1991)); see also Jackson, 443 U.S. at 319; United States v. Speer, 40 M.J.
230, 232 (1994)(in conducting legal sufficiency analysis, court not bound by Appellant's version of evidence or inferences to be drawn therefrom).
Argument
PFC Smith’s allegation of rape was not “literally incredible,” nor did her testimony leave open the “fair and reasonable hypothesis she engaged in consensual sex with appellant” (Appellant’s Brief at 40). On the contrary, PFC Smith testified about a nonconsensual encounter where appellant forcibly had sexual intercourse with her.
PFC Smith made a perilous mistake when she became involved with appellant. She admitted to having numerous instances of consensual sexual intercourse with him. She claimed appellant raped her only one time. By viewing PFC Smith’s testimony in a vacuum, in the light most favorable to appellant, making no allowances to the finder of fact who observed her testify, there might be some question as to why she did not resist more forcefully or failed to immediately report the rape. Such an approach, however, is not the standard this Honorable Court
24

employs when reviewing the factual and legal sufficiency of a charge.
PFC Smith described appellant’s relentless threats on the evening he raped her and the days leading up to it (R. 258, 260-
261, 263-265, 268-288). She testified about her profound and well grounded fear of appellant, and her multiple protestations to appellant she did not want to have sexual intercourse with him (R.
278-288). She tried to cover her body (R. 282-283). She faked having orgasm (R. 285). She tried to pull away from appellant and fight him off (R. 286-287). Appellant knew she did not want to have intercourse with him and, displaying the ultimate consciousness of guilt, he specifically told her she needed “to do things she didn’t want to do” (R. 283).
PFC Smith’s failure to immediately report the rape must be viewed with the understanding of how appellant was extorting her by threatening to accuse her of being a drug dealer and to release a sex video of her. Similarly, PFC Smith’s reluctance to report appellant makes sense when doing so implicated her in the indecent acts she committed with him. These were factual charges appellant pled guilty to committing (R. 98-101). In short, reporting appellant would also result in her having to explain a lot of embarrassing and humiliating details about her personal life. The evidence produced at trial was both factually and legally sufficient and this assignment of error must fail.
25

II
THAT PORTION OF THE SENTENCE WHICH DIRECTED
ADDITIONAL CONFINEMENT IN THE EVENT THAT THE
FINE WAS NOT PAID BY THE DATE OF THE CONVENING
AUTHORITY’S ACTION WAS A NULLITY BECAUSE THE
FINE WAS NOT AN APPROVED SENTENCE UNTIL THE
CONVENING AUTHORITY ACTED.
Law and Argument
The Government agrees under the limited facts of the instant case, appellant’s sentence to additional confinement for failure to pay the fine by action is a nullity. The $50,000.00 fine the military judge sentenced appellant to is lawful, however, appellant correctly notes the military judge placed an impermissible condition on the adjudged fine by making it payable prior to the convening authority taking action (Appellant’s Brief at 43). Conducting the hearing to determine appellant’s ability to pay the fine before action, and therefore before the fine was even lawful, compounded the error. Accordingly, this Honorable
Court should disapprove the additional forty-two months confinement and approve the remaining sentence as adjudged, including the fine.
19
19 This Court could remedy the error by returning the case to the convening authority for a new Action, wherein the convening authority disapproves the military judge’s language ordering the fine paid by action. The convening authority could then order a new hearing to determine whether or not appellant is indigent. In the interest of judicial economy, the Government recommends
26

III
THE CONVENING AUTHORITY ABUSED HIS DISCRETION
IN CONCLUDING THAT THERE WAS NO OTHER
PUNISHMENT ADQUATE TO MEET THE GOVERNMENT’S
INTEREST IN APPROPRIATE PUNISHMENT.
Law and Argument
This issue is moot in light of the Government’s previous concession.
IV
THE EVIDENCE IS LEGALLY AND FACTUALLY
INSUFFICENT AS TO A FINDING OF GUILT THAT THE
DA FORM 5960 “AUTHORIZATION TO START, STOP, OR
CHANGE BASIC ALLOWANCE FOR QUARTERS (BAQ)”
SIGNED BY APPELLANT WAS “TOTALLY FALSE” AS
ALLEGED IN THE SPECIFICATION SINCE THE
GOVERNMENT FAILED TO PROVE THAT THE ENTIRE
DOCUMENT WAS FALSE (CHARGE VI AND SOLE
SPECIFICATION) see generally, United States v.
Evans, 37 M.J. 468 (C.M.A. 1993)(BAQ recertification not “totally false” where accused had checked that he had provided adequate support for 2 years but in fact had failed to make child support payments for a portion of those 2 years).
Law and Argument
The Government agrees that under the limited facts of this case, the Government did not prove appellant made a “totally false” statement on his DA Form 5960. Appellant blatantly lied by claiming Lakeshia Johnson, his servicemember spouse, resided in
Mount Vernon, New York (PE 23). Appellant may, however, have been against this course of action because all indications are the new hearing will again find appellant indigent, in which case appellant could not be sentenced to
27

truthful when claiming his sons Jamere and Jawan Black resided in
Fayetteville, North Carolina and that he was providing support for them. The Government did not prove beyond a reasonable doubt those parts of the statement were false. Accordingly, this
Honorable Court should amend the promulgating order by redacting the word “totally” and approving the remaining language of the charge.
Answers to Grostefon Errors and Argument
V
THE EVIDENCE IS LEGALLY AND FACTUALLY
INSUFFICENT AS TO THE FINDING THAT APPELLANT
WAS GUILTY OF COMMITTING EXTORTION AGAINST PFC
SMITH (CHARGES II AND ITS SOLE SPECIFICATION)
Law and Argument
This assignment of error is without merit.
VI
THE EVIDENCE IS LEGALLY AND FACTUALLY
INSUFFICENT AS TO THE FINDING THAT APPELLANT
WAS GUILTY OF ASSAULTING SPC JONES AND PFC
SMITH AT [SIC] DRAGON HILL ON 25 MAY 2003
(SPECIFICATIONS 2, 3, AND 4 OF CHARGE III).
Law and Argument
This assignment of error is without merit. SPC Jones and PFC
Smith’s testimony describing this event overwhelmingly established appellant’s guilt. Their testimony was detailed and corroborated by other evidence. Even the damaged mattress which corroborated the additional confinement.
28

appellant’s assault against PFC Smith cried out that appellant was guilty (PE 4).
VII
THE EVIDENCE IS LEGALLY AND FACTUALLY
INSUFFICENT AS TO THE FINDING THAT APPELLANT
WAS GUILTY OF STEALING OVER $50,000 (CHARGE
VII AND ITS SOLE SPECIFICATION).
Introduction
Appellant’s claim the evidence is legally and factually insufficient to support this charge is utterly without merit because the totality of both the documentary and testimonial evidence of appellant’s guilt is simply overwhelming. In discovering appellant’s marriage certificate to SPC Jones, the
Government pulled the first thread out of appellant’s tapestry of lies and deceit. Rather than mistakenly receiving BAH as appellant claimed, the evidence establishes appellant, an experienced Soldier with several PCS moves and overseas assignments, deliberately stole the money and incorporated false information about his first marriage and subsequent marriage to
SPC Jones. Therefore, he was properly convicted beyond any reasonable doubt.
Combined Facts and Argument
Appellant’s effort to commit the larceny began before he ever arrived in Korea. Prior to his PCS, appellant requested personnel
29

amend his orders so he could relocate his “dependents” and household goods to New York (R. 619, PE 20). In-processing in
Korea on 22 September 2000, appellant falsified several finance forms to accomplish his larceny. Starting with his travel voucher
(DD Form 1351-2), appellant claimed Lakeshia Johnson as his wife and dependent, implying the two traveled to New York together before appellant came to Korea (R. 621, PE 22).
20 Since Lakeshia
Johnson was a servicemember, however, appellant was never entitled to move her to New York or to claim her as dependant (R. 621-622).
When completing his “Authorization to start, stop or change basic allowance for quarters” (DA Form 5960), appellant again listed Lakeshia Johnson as his dependent, claimed BAH for her, and stated she lived in Mount Vernon, New York (R. 622, PE 23). As a servicemember, SSG Johnson was entitled to her own BAH and appellant could not claim her as his dependent even if she actually moved to New York, which she never did (R. 622). Had appellant truthfully completed the form, he would have indicated
SSG Johnson’s military status and this would have precluded him from receiving BAH on her behalf (R. 623).
When completing his “Statement to substantiate payment of family separation allowance” (DD Form 1561), appellant lied yet again, claiming his dependent(s) resided in Mount Vernon, New
20 As previously noted, appellant and Lakeshia Johnson married on 29 December
1997 and divorced on 16 March 2001 (PE 15, PE 16 R. 601-602). SSG Johnson not only never moved to New York, she had never even been to the state (R. 659).
30

York, his dependent children were not in the legal custody of another person, and his dependent was not a servicemember on active duty (R. 623-624, PE 24). After falsifying these documents, appellant began receiving BAH funds to which he was never entitled from November 2000 onwards (R. 624, PE 25, 26).
Although appellant was never entitled to the BAH for his servicemember spouse, after 16 March 2001 he was positively ineligible to continue receiving it under any strained interpretation because on that day the Superior Court of Conchise
County, Arizona issued their divorce decree (R. 625-626).
21
Nevertheless, appellant still received the BAH (R. 626, PE 27,
28).
22
Continuing his deception, on 20 June 2001 while still receiving BAH for SSG Johnson, appellant sought permission to reside off-post (R. 601-602, 626, PE 29). Lying yet again, appellant claimed his spouse Aiesha Davis was going to arrive in
July or August 2001 (id.). Aiesha Davis, a woman appellant dated while stationed at Fort Bragg, during the same time frame when he
21 Although appellant indicated SSG Johnson lived in Mount Vernon, New York, the
Arizona court near Fort Huachuca, where SSG Johnson was stationed, issued their divorce decree (Appellate Exhibit (AE) XXXVIII, Slide 13, R. 625).
22 There is no doubt appellant knew about their divorce. SSG Johnson testified they discussed the issue often and she sent the divorce decree to him via registered mail (R. 656-659). Furthermore, SSG Johnson never received any money from appellant claiming BAH for her supposedly living in New York and never knew appellant was making any such claim (R. 659). Unlike SPC Jones, PFC Smith, and
Ms. Odom, appellant apparently never assaulted SSG Johnson or had any difficulties with her. Having no apparent motive or bias against appellant, her testimony is even more reliable.
31

fathered two children with Leslie Washington and assaulted and threatened Ms. Odom, never married appellant nor did appellant father any of his children with her (PE 36). Nevertheless, by claiming Aiesha Davis as his spouse, appellant certainly demonstrated he knew his divorce from Lakeshia Johnson, his servicemember spouse, was final.
If appellant was still unsure about his marital status to SSG
Johnson, Aiesha Davis, or anyone else, his mid-tour leave from 20
January 2002 until 8 February 2002, should have resolved it.
During this time, appellant went to Mount Vernon, New York, where he stayed at the same address he claimed SSG Johnson resided (R.
627, PE 30). Appellant would have realized on this visit that SSG
Johnson did not live in Mount Vernon, New York. He also would have discovered he and SSG Johnson were divorced since she had sent the decree to appellant’s father’s home six months earlier
(R. 658).
Several months after returning from leave, appellant disregarded yet another opportunity to rectify his BAH situation.
Due to numerous cases of BAH fraud, his battalion commander instituted a policy where Soldiers would have to recertify their
BAH entitlements (R. 606). On 3 June 2002, recertifying he was receiving his correct BAH entitlement for his spouse in Mount
32

Vernon, New York, appellant lied yet again (R. 607, 627-628, PE
12).
23
In October 2002, appellant traveled to the United States again when he brought SPC Jones home with him, marrying her in
Florida. SPC Jones testified when she went to New York with appellant she met his father and stepmother, but she never met
Lakeshia Johnson or any other supposed spouse or dependent, including appellant’s son Shawn Prince, who she knew lived in
Germany with his mother, Susan Savage (R. 411-412). SPC Jones did meet appellant’s twin sons and their mother, Leslie Washington, but they lived in North Carolina (R. 412).
Captain (CPT) Steve Gunter, appellant’s company commander, knew appellant well and interacted with him daily since he was the unit’s training NCO (R. 597). In early 2003, appellant told CPT
Gunter he wanted to extend for a third unaccompanied tour in Korea because “his wife as in college back in New York” (R. 603). This, of course, was a lie, but CPT Gunter accepted appellant’s explanation at “face value” and persuaded the battalion commander to reconsider his previous decision to deny appellant’s request
(R. 603-604). Appellant never told CPT Gunter he was in fact
23 Other Soldiers from appellant’s unit apparently took this opportunity to alert finance of mistakes - appellant did not (R. 628, PE 12).
33

married to SPC Jones, and never told CPT Gunter he was improperly receiving BAH for his non-existent spouse in New York (R. 604).
24
Finally, appellant also lied directly to his battalion command sergeant-major, Command Sergeant Major (CSM) Diane Foster, about his marital status (R. 567). CSM Foster saw appellant the day CID began investigating him. Appellant had been ordered to wait in the orderly room. CSM Foster, trying to discern what was going on with the investigation, asked several NCOs in the area if appellant was in the room alone. They responded he was there with his “fiancée” (R. 568). Thinking “this don’t [sic] pass the common sense test to me,” CSM Foster went to see appellant.
Noticing SPC Jones in the room with him, CSM Foster asked appellant, “Oh, is this the fiancée?” Appellant responded, “No.
This is not my fiancée. That is my friend. I am married” (id.).
Finally realizing his ruse was coming to an end, appellant tried making last ditch efforts to cover his tracks. Accordingly, on 30 June 2003, appellant went to the finance office at Camp
24 In addition to lying to CPT Gunter during this period of time, appellant also lied to his company first sergeant, First Sergeant James Franklin about his marital status. First Sergeant Franklin also counseled appellant about his
Foreign Tour Extension (R. 401). After asking appellant why he was seeking a third or fourth consecutive overseas tour, appellant responded “it was because of his financial situation and his wife and family back in New York” (R. 400).
Not surprisingly, appellant failed to mention any issue about him improperly receiving BAH, anything about him supposedly attempting to repay it, or anything about finance supposedly thwarting his efforts to repay it since he did not have divorce decree (R. 400-401). Appellant also failed to mention he was married to
SPC Jones. Appellant even lied about his marital status to his friend SSG
Campbell. SSG Campbell testified appellant told him his wife “was going to come over and visit” and his wife lived in New York (R. 531-532). When appellant told him this lie, he had already divorced SSG Johnson (who never lived in New
York to begin with) and married SPC Jones.
34

Humphreys and requested they stop his BAH and family separation allowance, effective retroactively from 1 March 2002 (R. 629, PE
32). Not surprisingly, the finance office immediately acted without requiring appellant to provide a divorce decree, thereby contradicting the absurd version of events appellant told the military judge during his providence inquiry (R. 620, PE 33). By
August 2003, appellant was no longer receiving the BAH to which he had never been entitled (R. 630, PE 34). By then, he had wrongfully accumulated over $50,000.
In summary, the evidence appellant knowingly stole BAH is overwhelming by any standard of proof. Even if viewed in the light most favorable to appellant and allowing him every possible benefit of the doubt, he would still fail miserably. Appellant’s repeated lies and falsification of documents demolish any claim of mistake. Accordingly, this assignment of error is without merit and must fail.
VIII
THE EVIDENCE IS LEGALLY AND FACTUALLY
INSUFFICENT AS TO THE FINDING THAT APPELLANT
WAS GUILTY OF ASSAULTING AND THREATENING
LAKEISHA ALFORD (ADDITIONAL CHARGES V AND VI
AND THE SOLE SPECIFICATION THEREUNDER).
Law and Argument
This assignment of error is without merit. Ms. Odom’s clear testimony established how appellant threatened and assaulted her.
35

SFC Odom’s testimony buttressed his wife’s and corroborated appellant’s obsession with her.
IX
AN APPROVED SENTENCE WHICH INCLUDES 16 YEARS
OF CONFINEMENT, A FINE OF $50,000, AND
CONDITIONAL CONFINEMENT OF AN ADDITIONAL 42
MONTHS IS INAPPROPRIATELY SEVERE, BECAUSE
INTER ALIA, THE GOVERNMENT HAD PREVIOUSLY BEEN
WILLING TO DROP THE RAPE AND EXTORTION
ALLEGATIONS IN CHARGES I AND II AND TO CAP
CONFINEMENT AT THREE YEARS IF APPELLANT PLED
GUILTY TO LARCENY OF THE BAH FRAUD MONEY;
BECAUSE THE GOVERNMENT HAD ALREADY RECOUPED
THOUSANDS OF DOLLARS FROM APPELLANT’S MILITARY
PAYCHECKS PRIOR TO AND DURING THE COURT-
MARTIAL, AS WELL AS $5,000 FROM HIS PRIOR
CIVILIAN DEFENSE COUNSEL, AND BECAUSE
APPELLANT HAD BEEN A GOOD NCO WHO HAD EARNED
THREE ARMY ACHIEVEMENT MEDALS, TWO GOOD
CONDUCT MEDALS, AND HAD NO PRIOR ARTICLE 15
PUNISHMENTS.
Law and Argument
Determining sentence appropriateness is a function of this
Court's duty to do justice. See Article 66(c), UCMJ. However, granting clemency or mercy is not a matter for the Court. United
States v. Healy, 26 M.J. 394 (C.M.A. 1988). In Healy, Chief Judge
Everett wrote:
Sentence appropriateness involves the judicial function of assuring that justice is done and that
36

the accused gets the punishment he deserves.
Clemency involves bestowing mercy--treating an accused with less rigor than he deserves ....
Article 66, UCMJ ... assigns to the Courts of
Military Review only the task of determining sentence appropriateness: doing justice.
Id. at 395-96. This Court must be guided by the overriding principle that each sentence must be judged on an “individual basis taking into consideration both the nature and seriousness of the offenses involved and the offender’s character.” United
States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982).
When not lying, stealing, raping, extorting, assaulting, breaking orders, committing adultery, and committing indecent acts, appellant was an otherwise reasonably good duty performer.
His good duty performance, however, is not a mitigating factor but is aggravating. Using the façade of a good Soldier, appellant found a ruse to avoid detection from the numerous crimes he committed over a long period of time. His strong performance as a training NCO, equal opportunity representative, and other leadership positions aggravate his crimes all the more because he used his perceived status as a tool to commit his crimes and intimidate his victims.
Sparing no effort in demonizing his victims, attacking their motives, impugning their integrity, appellant offers no remorse for his crimes and accepts no responsibility for his actions.
Instead, appellant continues to see himself as the victim of a
37

misunderstanding with finance and of vindictive women who plotted against him. As the Government argued in closing, appellant ironically might have escaped justice for all these offenses had he simply left PFC Smith alone after raping her rather than continuing to threaten her (R. 763). Instead, appellant’s obsession with controlling everyone proximately caused the situation in which he now finds himself. Appellant richly deserved his sentence and merits no relief.
X
APPELLANT WAS DEPRIVED OF HIS RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL AS SET FORTH
IN APPELLANT’S AFFIDAVIT.
Law and Argument
This assignment of error is without merit. Facing a very challenging case with multiple charges and victims, and overwhelming evidence of their client’s guilt, appellant’s defense team mounted a commendable defense. As appellant notes, they also managed to persuade the Government to consider a very favorable pretrial agreement if appellant would have merely accepted full responsibility for stealing BAH.
Appellant “however . . . could not plead guilty to that offense because [he claims] I twice went into Finance to change the BAH paperwork and was told nothing could be done until I produced a copy of my divorce papers” (Appellant’s Affidavit).
Once again, in the face of overwhelming evidence against him,
38

appellant accepts no responsibility for his deliberate theft of over $50,000.00. The veracity of appellant’s remaining allegations should be judged against his demonstrated record of mendacity and discarded. Accordingly, this assignment of error must fail.
XI
THE TRIAL COUNSEL ENGAGED IN PROSECUTORIAL
MISCONDUCT AS SET FORTH IN APPELLANT’S
AFFIDAVIT, INCLUDING THE GOVERNMENT’S [SIC]
THAT APPELLANT WAS “A CRIMINAL IN THE GREATEST
SENSE OF ENRON SCANDALS” (RECORD AT 816) AND
THAT APPELLANT TURNED “INTO A VIOLENT MAN WHO
WOULD RATHER KILL PEOPLE, AND THREATEN THEIR
LIVES, THAN FEEL OUT OF CONTROL” (RECORD AT
725).
Law and Argument
This assignment of error is without merit.
XII
APPELLANT WAS DEPRIVED OF HIS RIGHT TO DUE
PROCESS BECAUSE THE GOVERNMENT FAILED TO
PROVIDE HIM WITH COPIES OF THE COURT-MARTIAL
TAPS TO ENSURE THAT HIS RECORD OF TRIAL WAS
VERBATIM.
Law and Argument
This assignment of error is without merit.
XIII
THE GOVERNMENT ENGAGED IN SELECTIVE
PROSECUTION WHEN IT ELECTED TO PROSECUTE
APPELLANT FOR ADULTERY WITH PFC SMITH BUT
FAILED TO PROSECUTE SERGEANT BRYANT FOR
COMMITTING ADULTERY WITH SPC JONES.
39

Law and Argument
This assignment of error is without merit.
Conclusion
The Government submits that the approved findings and sentence are correct in law and fact. WHEREFORE, the Government respectfully requests that this Honorable Court redact the word
“totally” from Charge VI and its Specification, disapprove the additional forty-two months confinement contingent upon payment of the $50,000 fine, and affirm the remaining findings and sentence.
MASON S. WEISS
Captain, JA
Appellate Government Counsel
MICHELE B. SHIELDS
Lieutenant Colonel, JA
Deputy Chief
Government Appellate Division
PAUL T. CYGNAROWICZ
Major, JA
Appellate Government Counsel
JOHN W. MILLER II
Colonel, JA
Chief, Government Appellate
Division
40

CERTIFICATE OF SERVICE AND FILING
I certify that a copy of the foregoing brief was filed with this Court and delivered to Appellate Defense Counsel on the
______________ 2006. Via certified mail to Mary T. Hall, Civilian
Defense Attorney, P.O. Box 637, Hollywood, MD 20636 on
_________ 2006.
DARLINE D. BOWMAN
Paralegal Specialist
Government Appellate Counsel
(703) 588-6104
41