United States v. Garron

U NITED S TATES A IR F ORCE C OURT OF C RIMINAL APPEALS ________________________ No. ACM 40239 ________________________ UNITED STATES Appellee v. Charles D. GARRON Staff Sergeant (E-5), U.S. Air Force, Appellant ________________________ Appeal from the United States Air Force Trial Judiciary Decided 9 February 2023 ________________________ Military Judge: Elijah F. Brown.

Sentence: Sentence adjudged on 8 September 2021 by GCM convened at Francis E. Warren Air Force Base, Wyoming. Sentence entered by mili- tary judge on 13 October 2021: Dishonorable discharge, confinement for months, total forfeiture of pay and allowances, reduction to E-1, and a reprimand.

For Appellant: Major Alexandra K. Fleszar, USAF.

For Appellee: Lieutenant Colonel Thomas J. Alford, USAF; Major John P. Patera, USAF; Major Jay S. Peer, USAF; Major Brittany M. Speirs, USAF; Mary Ellen Payne, Esquire.

Before POSCH, RICHARDSON, and CADOTTE, Appellate Military Judges. ________________________ This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 30.4. ________________________ PER CURIAM: A general court-martial composed of a military judge alone found Appellant guilty, in accordance with his pleas and a plea agreement, of one specification of sexual abuse of a child under 16 years of age on divers occasions, in violation United States v. Garron, No. ACM 40239

of Article 120b, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920b.1 As part of the plea agreement with the convening authority, Appellant waived his right to a trial by members and requested to be tried by military judge alone. The plea agreement established a maximum of 12 months’ confinement but imposed no other limitations on the sentence. The military judge sentenced Appellant to a dishonorable discharge, confinement for 12 months, total forfei- ture of pay and allowances, reduction to the grade of E-1, and a reprimand.

Appellant asserts one assignment of error, pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982): that the record of trial is substantially incomplete in that it omits the recording of the preliminary hearing and a pre- liminary hearing exhibit containing the complaining witness’s interview.

Finding no error that materially prejudiced a substantial right of Appellant and concluding that the sentence is correct in law and fact and should be ap- proved, we affirm the findings and sentence.

I. BACKGROUND In 2019, on two occasions, Appellant touched over the clothing the vulva of VG, the 10-year-old daughter of close family friends and a fellow squadron member. On both occasions, Appellant visited the home of those friends on Francis E. Warren Air Force Base, Wyoming. Appellant had VG sit on his lap, then Appellant touched VG’s vulva over the clothes for approximately 10 to 15 minutes on the first occasion, and 10 minutes on the second occasion. Each time Appellant touched VG’s vulva it was with the intent to gratify his sexual desire.

At Appellant’s court-martial, the military judge accepted his pleas and an- nounced findings of guilty. On 10 December 2021, the court reporter certified that “the Record of Trial [w]as accurate and complete in accordance with [Rule for Courts-Martial (R.C.M.)] 1112(b).” On 26 January 2022, the record was docketed with this court. Attached to the record is a Preliminary Hearing Of- ficer (PHO) report for an Article 32, UCMJ, 10 U.S.C. § 832, hearing held on April 2021. During Appellant’s preliminary hearing, PHO Exhibit 4 was provided to, reviewed by, and sealed by the PHO. The PHO report describes the exhibit as a recording of the victim’s child forensic interview consisting of two video files; however, the item marked PHO Exhibit 4 contained in the court’s record was not a recording of the victim’s child forensic interview. Ra- ther, the disc contained a recording of another child forensic interview which

United States v. Garron, No. ACM 40239

was not introduced at the preliminary hearing. Additionally, the PHO report failed to include an audio recording of the proceeding as an attachment.

On 2 December 2022, we ordered the Government to obtain and file a mo- tion to attach to the record: “(1) [t]he recording of Appellant’s preliminary hear- ing conducted on 23 April 2021; and (2) [t]he recording of VG’s child forensic interview consisting of two video files offered by the Government at Appellant’s preliminary hearing as PHO Exhibit 4, which were considered by the PHO.”

On 14 December 2022, in response to our order, the Government moved to attach a copy of PHO Exhibit 4 and the recording of the Article 32, UCMJ, hearing.2 On 18 January 2023, we granted the Government’s motion.3 II. DISCUSSION A record of trial must include items listed in R.C.M. 1112(b)(1)–(9). See R.C.M. 1112(d)(2) (“A record of trial is complete if it complies with the require- ments of subsection (b).”). A PHO report under Article 32, UCMJ, to include its attachments, is not required content of a record of trial under R.C.M. 1112(b).

However, the Government, through a court reporter, is required to attach cer- tain items to a record of trial before a certified record is forwarded for appellate review. R.C.M. 1112(f). The PHO report is among those items the Government is required to attach to the record of trial. R.C.M. 1112(f)(1)(A).

Appellant’s assignment of error brief alleges that the record of trial is sub- stantially incomplete in that it omits the recording of the preliminary hearing and a preliminary hearing exhibit. As a remedy, Appellant requests we disap- prove his punitive discharge, or in the alternative, “remand his case to the mil- itary judge to complete the record by including the preliminary hearing record- ing and originally submitted PHO Exhibit 4.” The Government acknowledged the correct PHO Exhibit 4 and a recording of the preliminary hearing were both “absent from the record of trial.” As both items have now been attached

2PHO Exhibit 4 consists of VG’s forensic interview on two discs, each containing one video file. We note a portion of the video file contained on the first disc—from the 22:31 minute mark until the end of the file at the 33:26 minute mark—contains no viewable content.

3We initially denied the Government’s motion to attach on 19 December 2022. How- ever, the Government submitted a motion to reconsider on 5 January 2023. Appellant raised no opposition to the Government’s reconsideration motion. We granted the Gov- ernment’s motion on 18 January 2023.

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to the record, we find further relief is not warranted.4,5 Appellant alleges no other basis for finding the record of trial incomplete under R.C.M. 1112(b), and we find none.

III. CONCLUSION The findings and sentence as entered are correct in law and fact, and no error materially prejudicial to Appellant’s substantial rights occurred. Articles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d).6 Accordingly, the findings and sentence are AFFIRMED.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court