United States v. Paxton

UNITED STATES, Appellee

v.

Kevin E. PAXTON, Technical Sergeant
U.S. Air Force, Appellant

No. 06-0695

Crim. App. No. 36092

United States Court of Appeals for the Armed Forces

Argued January 16, 2007

Decided April 26, 2007

ERDMANN, J., delivered the opinion of the court, in which BAKER,
STUCKY, and RYAN, JJ., joined. EFFRON, C.J., filed a separate
opinion concurring in part and dissenting in part.

Counsel

For Appellant: James A. Hernandez, Esq. (argued); Lieutenant
Colonel Mark R. Strickland and Major John N. Page III (on
brief).

For Appellee: Captain Jefferson E. McBride (argued); Colonel
Gerald R. Bruce and Lieutenant Colonel Robert V. Combs (on
brief).

Military Judge: William. M. Burd

This opinion is subject to revision before final publication.
United States v. Paxton, No. 06-0695/AF

Judge ERDMANN delivered the opinion of the court.

Technical Sergeant Kevin E. Paxton was convicted by members

at a general court-martial of rape, forcible sodomy, taking

indecent liberties, committing indecent acts, and communicating

indecent language, all with a person under age sixteen. He was

also convicted of wrongfully providing alcohol to a minor,

wrongful and knowing possession of child pornography, and

incest. This conduct was in violation of Articles 120, 125, and

134, UCMJ, 10 U.S.C. §§ 920, 925, 934 (2000). Paxton was

sentenced to a dishonorable discharge, confinement for twenty-

six years, forfeiture of all pay and allowances, and reduction

to E-5. The convening authority approved the sentence and the

United States Air Force Court of Criminal Appeals affirmed the

findings and sentence. United States v. Paxton, No. ACM 36092,

2006 CCA LEXIS 100, 2006 WL 1144213 (A.F. Ct. Crim. App. Apr.

18, 2006) (unpublished).

We granted review of three issues: (1) whether trial

counsel’s sentencing argument improperly commented on Paxton’s

exercise of his rights to plead not guilty and to remain silent

during the trial; (2) whether Paxton received ineffective

assistance of counsel; and (3) whether the indecent acts

offenses charged against Paxton were multiplicious for

sentencing with the rape offense or whether there was an

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unreasonable multiplication of charges. We affirm the decision

of the Air Force Court of Criminal Appeals.

Paxton was convicted contrary to his pleas of several

sexual offenses against his twelve-year-old daughter, including

touching her breasts and genitals, forcible sodomy, rape, and

incest. Paxton was also convicted of giving his daughter

alcohol and showing her pornography. Other facts relevant to

the disposition of the issues are set forth in the discussion of

the individual issues.

Issue I

Trial Counsel’s Argument on Sentencing

The prosecution may not comment on an accused’s lack of

remorse or on his recalcitrance in refusing to admit guilt after

findings unless there is testimony from the accused, an unsworn

statement, or other evidence properly before the court members

to support the comment. United States v. Edwards, 35 M.J. 351,

355 (C.M.A. 1992). The comment may not be drawn from an

accused’s decision not to testify or from his pleas of not

guilty. Id. We granted this issue to address whether trial

counsel’s argument on sentencing wrongfully commented on

Paxton’s exercise of his right to plead not guilty or to remain

silent during sentencing.

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A. Background

Paxton did not testify prior to findings or at sentencing,

nor did he submit an unsworn statement. At sentencing, Paxton

presented the testimony of a clinical psychologist, Lieutenant

Colonel Jay Michael Stone. Dr. Stone evaluated Paxton over a

three-day period before trial. He spent nine hours clinically

interviewing him and administered a battery of tests, including

the Minnesota Multiphasic Personality Inventory (MMPI). On

cross-examination, Dr. Stone testified that Paxton’s test

results showed, among other things, that Paxton had an inability

or unwillingness to disclose personal information, that he

engaged in “impression management” to present himself more

favorably, that he believed other people were largely

responsible for his problems, and that he has a lack of

initiative and an avoidance of adult forms of autonomy.

While addressing rehabilitation potential in his sentencing

argument, trial counsel stated as follows:

You have to look at this individual and see that he
really is a worthy candidate for rehabilitation. The
MMPI tells you that he was trying to fake himself
looking better . . . . The test he was taking for you
to know more about him, he is trying to bamboozle you.
He doesn’t want you to know what kind of person he
really is, the child rapist, the child pornography,
that’s the kind of person he is. It also tells you he
is unwilling and has an inability to accept
responsibility and to disclose personal information.
He needs severe punishment and long-term treatment to
make sure he is never going to do this again.
Rehabilitation, as we know it, the doctor told us, we
have long-term treatment facilities in our military

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disciplinary barracks. He needs to be there. We know
it is going to take him a while, because he won’t
admit what he has done. He won’t admit it to his
doctor. He won’t admit it to himself and until he
admits it, he can’t even get into the treatment. He
has to volunteer to get into the treatment. You saw
all the other things from the doctor’s testimony that
shows he is the kind of person who is not going to be
proactively seeking that out. He has to get over that
hurdle. He has to be punished long-term to make sure
that he gets treatment and that he never does this
again.

There was no objection from defense counsel.

B. Discussion

A sentencing argument by trial counsel which comments upon

an accused’s exercise of his or her constitutionally protected

rights is “beyond the bounds of fair comment.” United States v.

Johnson, 1 M.J. 213, 215 (C.M.A. 1975) (emphasis omitted).

However, an accused’s refusal to admit guilt after findings may

be an appropriate factor for the member’s consideration in their

sentencing deliberation on rehabilitation potential but only if

a proper foundation has been laid. Edwards, 35 M.J. at 355.

“As a general rule, the predicate foundation is that an accused

has either testified or has made an unsworn statement and has

either expressed no remorse or his expression of remorse can be

arguably construed as being shallow, artificial, or contrived.”

Id. Other evidence in the record may also give rise to the

inference that an accused is not remorseful, but the inference

may not be drawn from his decision not to testify or from his

pleas of not guilty. Id.

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Paxton contends that the referenced portion of trial

counsel’s argument amounts to improper comment on his rights to

plead not guilty and to remain silent at sentencing. The

Government asserts that trial counsel’s argument was a proper

response to Dr. Stone’s testimony. As Paxton did not object to

the sentencing argument at trial, he must establish plain error

to prevail on appeal. United States v. Haney, 64 M.J. 101, 105

(C.A.A.F. 2006) (citing United States v. Fletcher, 62 M.J. 175,

179 (C.A.A.F. 2005)). To establish plain error, Paxton must

demonstrate: (1) that there was error, (2) that the error was

plain or obvious, and (3) that the error materially prejudiced a

substantial right. Id.

While Paxton did not testify or give an unsworn statement

he did have Dr. Stone testify as to the results of his

psychological testing. Considering trial counsel’s remarks in

context, we have no difficulty in concluding that this portion

of his argument was based on the testimony of Dr. Stone and not

on Paxton’s decisions to plead not guilty or to remain silent

during sentencing. Although trial counsel sought to draw the

inference that Paxton was unwilling to accept responsibility or

admit what he had done, he did not do so by commenting on

Paxton’s decision to exercise these rights. In this regard,

there was no error.

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We nevertheless note our concern regarding trial counsel’s

statement that “he won’t admit what he has done. He won’t admit

it to his doctor. He won’t admit it to himself . . . .” Dr.

Stone testified as to the results of psychological tests that he

administered and did not testify as to any statement that Paxton

may have made in response to these specific offenses. “This

Court has consistently cautioned counsel to limit arguments on

findings or sentencing to evidence in the record and to such

fair inferences as may be drawn there from.” United States v.

White, 36 M.J. 306, 308 (C.M.A. 1993) (citations and quotation

marks omitted). To the extent the argument went beyond the

facts established in the record or failed to make clear that

counsel was calling for an inference reasonably drawn from the

evidence, it would constitute error. However, even if there was

error here, Paxton has failed to establish that it was plain and

obvious.

Issue II

Ineffective Assistance of Counsel

Paxton argues that trial defense counsel was ineffective in

the following areas: (1) failing to object to trial counsel’s

rebuttal argument on findings; (2) failing to object to trial

counsel’s sentencing argument; (3) advising Paxton to remain

silent during sentencing; and (4) failing to call Paxton’s wife

or former wife to testify at sentencing. We are guided by the

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test set forth by the United States Supreme Court in Strickland

v. Washington, 466 U.S. 668 (1984). See United States v.

Edmond, 63 M.J. 343, 345 (C.A.A.F. 2006). Under the two-pronged

test of Strickland, Paxton first “must show that counsel’s

performance fell below an objective standard of reasonableness

-- that counsel was not functioning as counsel within the

meaning of the Sixth Amendment.” Id. at 351 (citation and

quotation marks omitted). Second, Paxton “must demonstrate that

there is a reasonable probability that, but for counsel’s error,

there would have been a different result.” Id. (citation and

quotation marks omitted).

Ineffective assistance of counsel involves a mixed question

of law and fact. United States v. Davis, 60 M.J. 469, 473

(C.A.A.F. 2005) (citation omitted). We review factual findings

under a clearly erroneous standard, but we apply a de novo

standard of review to the ultimate determination of whether an

appellant received ineffective assistance of counsel and whether

there was prejudice. Id. (citations omitted). “Our review of

counsel’s performance is highly deferential and is buttressed by

a strong presumption that counsel provided adequate professional

service.” Edmond, 63 M.J. at 351 (citation omitted). We

address in turn each allegation of ineffective assistance.

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(1) Failure to object to the findings argument in rebuttal

In closing argument on findings, defense counsel asserted

as follows:

Now you also have the testimony of -– the pictures
that we spoke of earlier that [BCP] identified as what
was on the computer. She says she was shown these
images to pick out which ones she saw on the computer,
so essentially, what Sergeant Paxton is charged with
is showing [BCP] pornography and that is exactly what
[BCP] did in preparation for this trial.

In rebuttal, trial counsel responded: “To assert that what

the government had to do to get this child ready to come in here

and testify in this criminal proceeding is the same as what the

accused is charged with is repulsive and disingenuous.” Paxton

argues that trial counsel’s statement was a personal attack upon

him and his defense counsel. The Government responds that the

statement was a fair comment in response to defense counsel’s

argument on findings and that an objection would have further

highlighted a weakness in the defense’s case.

We believe that equating the offense of “indecent acts”

(Paxton showing pornographic pictures to his twelve-year-old

daughter) to appropriate trial preparation is a questionable

tactic that is clearly subject to proper rebuttal by the

Government. While we agree with the Court of Criminal Appeals’

apt description of trial counsel’s remarks as “somewhat

intemperate”, we do not regard the failure to object to the

remarks as conduct that falls below an objective standard of

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reasonableness nor do we believe an objection in these

circumstances would have impacted the trial’s result. Paxton,

2006 CCA LLEXIS 100, at *4, 2006 WL 1144213, at *2.1

(2) Failure to object to sentencing argument

We considered the issue underlying this ineffective

assistance of counsel claim in our discussion of Issue I where

we addressed whether trial counsel’s sentencing argument

improperly commented upon Paxton’s exercise of his rights to

plead not guilty and to remain silent. In this context, Paxton

asserts that defense counsel’s failure to object to that

argument constitutes ineffective assistance of counsel. In our

disposition of Issue I, we determined that trial counsel did not

improperly comment upon Paxton’s exercise of his rights to plead

not guilty or to remain silent. To the extent that trial

counsel’s arguments misstated the evidence, we determined that

if there was error, it was neither plain nor obvious.

Consequently, defense counsel’s failure to object to those

comments does not constitute ineffective assistance of counsel.

(3) Advising Paxton to remain silent during sentencing

Paxton contends that his trial defense team was ineffective

when it advised him not to give an unsworn statement. He argues

1
The Court of Criminal Appeals was addressing the underlying
issue of whether trial counsel’s remarks constituted plain error
and held that they did not. United States v. Paxton, No. ACM
36092, 2006 CCA LEXIS 100, at *4-*5, 2006 WL 1144213, at *2

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that if he presented his history, upbringing, duty performance,

and other matters in mitigation, such as his love of the Air

Force, the court-martial members would have adjudged less

confinement. In response, the Government points to the

affidavit of two Air Force attorneys who represented Paxton at

trial. Paxton’s trial counsels stated that they advised Paxton

against submitting an unsworn statement because they observed

the mood of the court-martial members and believed that if he

gave a statement without taking full responsibility for his

crimes and apologizing for them, he would further alienate the

members.

Our consideration of the record compels the conclusion that

the advice of defense counsels did not amount to ineffective

assistance of counsel. “As a general matter, [t]his Court will

not second-guess the strategic or tactical decisions made at

trial by defense counsel.” United States v. Perez, 64 M.J. 239,

243 (C.A.A.F. 2006) (citations and quotation marks omitted). As

the Government asserts, the affidavit of trial defense counsel

provides a sound tactical basis to explain why they advised him

not to submit an unsworn statement.

(4) Failure to call Paxton’s wife and former wife

Paxton asserts that his wife and former wife should have

been called to testify during findings. He argues that their

(A.F. Ct. Crim. App. Apr. 18, 2006) (unpublished). That issue

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testimony was critical in certain respects to adequately

establish a theory of defense. The affidavit of trial defense

counsel explains the tactical reasons behind counsel’s decisions

not to call these women as witnesses.

Defense counsel reasoned that testimony from Paxton’s

current wife would have had more disadvantages than advantages.

They considered her credibility before the members questionable

at best. Due to her youthful appearance, her background, and

certain aspects of her relationship with Paxton, they believed

that her testimony could have instilled in the members a sense

that Paxton was a man of questionable morals who took an

interest in younger women. Of similar concern, his former wife

was hostile to defense counsel and to Paxton. Trial defense

counsel considered her unstable and unpredictable and they

believed that she could have said any number of things

detrimental to Paxton if put on the stand, including allegations

that he abused her emotionally and physically.

Defense counsel’s affidavit provides a sound tactical basis

to justify the course taken at trial. We find no basis on which

to conclude this course was unreasonable and will not second-

guess this trial strategy. Perez, 64 M.J. at 243. Paxton has

failed to establish that he was denied effective assistance of

counsel.

is not before us under this grant of review.

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Issue III

Multiplicity or Unreasonable Multiplication of Charges

“Multiplicity and unreasonable multiplication of charges

are two distinct concepts.” United States v. Roderick, 62 M.J.

425, 433 (C.A.A.F. 2006) (citing United States v. Quiroz, 55

M.J. 334, 337 (C.A.A.F. 2001)). Multiplicity, a constitutional

violation under the Double Jeopardy Clause, occurs if a court,

“contrary to the intent of Congress, imposes multiple

convictions and punishments under different statutes for the

same act or course of conduct.” United States v. Teters, 37

M.J. 370, 373 (C.M.A. 1993). Even if offenses are not

multiplicious as a matter of law with respect to double jeopardy

concerns, the prohibition against unreasonable multiplication of

charges allows courts-martial and reviewing authorities to

address prosecutorial overreaching by imposing a standard of

reasonableness. Roderick, 62 M.J. at 433. We granted review of

this issue to address whether the charges of the ‘indecent acts’

offenses are multiplicious for sentencing with the rape charge

or whether there was an unreasonable multiplication of charges.

A. Background

Paxton was convicted of committing indecent acts by

touching his daughter’s breasts and genital area with the intent

to gratify his sexual desires. He was also convicted of sodomy

and rape. The offensive conduct underlying these specific

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charges took place on the same evening. As recounted by the

testimony of the victim, the offending conduct occurred as

follows: Paxton watched his daughter urinate and then wanted to

tuck her into bed. He sat at the end of her bed and asked her

if she wanted him to take her virginity. She said no. After “a

while” he asked if he could touch her breasts. After touching

her breasts, he asked if she would like him to finger her. She

said no, but he put his finger into her vagina. Then he told

her that he would teach her to do “blowjobs” and “hand jobs” and

asked her to give him a “blowjob.” She had her mouth on his

penis for a few seconds. Then he asked for a “hand job” and she

put her hands on his penis. After that, he took off his shirt,

got on top of her and put his penis inside her vagina.

At the outset of trial court proceedings, defense counsel

moved for dismissal of several specifications due to

multiplicity and unreasonable multiplication of charges. The

military judge found that “all of the charges and specification

in this case . . . allege distinct acts, criminal acts that are

not multiplicious for findings and do not constitute ‘piling

on’” and denied the motion. Prior to sentencing, defense

counsel argued that the rape charge, the sodomy charge, and the

specifications for indecent acts, indecent language and incest

all arise from one transaction and should be found multiplicious

for sentencing purposes. The military judge granted the motion

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as to the rape and incest charges, but denied it as to the

others.

B. Discussion

(1) Multiplicity

The primary question raised by this issue is whether the

indecent acts committed by Paxton and the rape amount to the

“same act or course of conduct” or whether they are distinct and

discrete acts, allowing separate convictions. Teters, 37 M.J.

at 373; see also United States v. Neblock, 45 M.J. 191, 197

(C.A.A.F. 1996) (recognizing that if it is “a distinct or

discrete-act offense, separate convictions are allowed in

accordance with the number of discrete acts”). This court

reviews claims of multiplicity de novo. Roderick, 62 M.J. at

431.

Paxton contends that this case involves just a single

transaction where the indecent acts occurred in the course of

Appellant’s positioning himself to commit the charged rape. The

Government contends that the indecent acts each involved a

distinct course of conduct separate from the rape. The

Government points out that touching his daughter’s breasts and

digitally penetrating her vagina were not used to establish any

elements of the rape charge, and the crime of sodomy separated

the indecent acts and the rape.

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Under the facts of this case, we conclude that the conduct

involved several distinct acts. The acts of touching his

daughter’s breast and genitals were discrete acts separate from

each other and separate from the rape, just as the conduct

underlying the sodomy charge was a separate and discrete act.

See Neblock, 45 M.J. at 196. Accordingly, we hold that the

indecent act offenses and rape are not multiplicious as a matter

of law.

(2) Unreasonable multiplication of charges

In addressing whether the Government has unreasonably

multiplied charges, this court applies a five-part test: (1)

Did the accused object at trial that there was an unreasonable

multiplication of charges and/or specifications? (2) Is each

charge and specification aimed at distinctly separate criminal

acts? (3) Does the number of charges and specifications

misrepresent or exaggerate the appellant’s criminality? (4) Does

the number of charges and specifications unreasonably increase

the appellant’s punitive exposure? (5) Is there any evidence of

prosecutorial overreaching or abuse in the drafting of the

charges? United States v. Pauling, 60 M.J. 91, 95 (C.A.A.F.

2004) (citing Quiroz, 55 M.J. at 338).

The first criterion is resolved in Paxton’s favor. At

trial, Paxton moved to dismiss specifications on two occasions,

once for findings and once for sentencing. It is, however, the

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only criterion resolved in Paxton’s favor. Each of the others

tends to show that there was no prosecutorial overreaching.

We addressed the second criterion when we considered

Paxton’s claim of multiplicity and concluded that the acts at

issue were distinct. As to the third criterion, we agree with

the military judge that this case does not involve the “piling

on” of charges but reflects charges for distinct criminal

conduct. Nor can Paxton meet the fourth criterion. The

indecent act specifications have no effect on Paxton’s punitive

exposure because rape carries with it a potential maximum

sentence of death. Manual for Courts-Martial, United States pt.

IV, para. 45.e.(1) (2005 ed.) (MCM). Conviction for rape of a

child also exposes Paxton to confinement for life without the

possibility of parole, a dishonorable or bad-conduct discharge,

and forfeitures of all pay and allowances. See MCM, Maximum

Punishment Chart app. 12 at A12-3. The punitive exposure is at

capacity for the offense of rape alone and could not be

increased by the convictions for indecent acts. As to the fifth

criterion, we find no evidence in this record of prosecutorial

overreaching or abuse in drafting the charges, and Paxton points

to nothing in this regard. We conclude that there was no

unreasonable multiplication of charges.

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Decision

The decision of the United States Air Force Court of

Criminal Appeals is affirmed.

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EFFRON, Chief Judge (concurring in part and dissenting in
part):

Trial counsel’s sentencing argument provided the members

with an erroneous portrayal of the evidence of record. Trial

counsel compounded his misstatement of facts by making an

argument that encouraged the members to draw adverse inferences

from Appellant’s exercise of his right to plead not guilty and

his right to remain silent. I respectfully dissent from the

portion of the majority opinion that concludes that any error in

trial counsel’s argument was not plain or obvious.

The errors occurred during trial counsel’s attempt to

describe the evidence and responsibilities of the panel during

sentencing. At this point in the trial -– the closing argument

on sentencing -- the prosecution had the opportunity to provide

carefully prepared remarks. We are not dealing here with a

stray comment spontaneously offered during an interactive

exchange with opposing counsel, the military judge, or a

witness. Trial counsel’s repeated assertion that Appellant

“won’t admit” that he committed the charged offenses constituted

plain error, warranting relief.

As noted in the majority opinion, the prosecution may not

comment in sentencing argument upon an accused’s exercise of his

or her constitutionally protected rights. United States v.

Johnson, 1 M.J. 213, 215 (C.M.A. 1975). Nonetheless, an
United States v. Paxton, 06-0695/AF

accused’s refusal to admit guilt after findings may be

considered by the members in deliberations on rehabilitative

potential, as long as a proper foundation has been laid for the

argument. United States v. Edwards, 35 M.J. 351, 355 (C.M.A.

1992). The foundation may consist of testimony or an unsworn

statement by the accused in which no remorse is expressed, or

the expression is arguably “shallow, artificial, or contrived.”

Id. Other evidence in the record also may provide a foundation,

but an argument based upon an accused’s recalcitrance to admit

guilt or express remorse may not be drawn from the decision not

to testify or to plead guilty. Id.

Here, there was no foundation for trial counsel’s comments.

Appellant did not testify. He did not submit an unsworn

statement at sentencing. The defense witness, Dr. Stone, did

not testify that Appellant refused to admit his offenses or that

he expressed a lack of remorse. Indeed, the record contains no

testimony from Dr. Stone recounting anything Appellant told him

regarding admitting the offenses, taking responsibility for

them, or feeling or lacking remorse. Nor did trial counsel ask

Dr. Stone whether Appellant admitted his offenses when trial

counsel had the opportunity to do so during cross-examination.

There was no evidence in the record that Appellant refused to

admit his guilt other than the two prohibited items upon which

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the prosecution could not comment –- Appellant’s decision not to

testify and his decision to plead not guilty.

The prosecution, in its sentencing argument,

mischaracterized the evidence about Appellant by stating: “[H]e

won’t admit what he has done. He won’t admit it to his doctor.

He won’t admit it to himself and until he admits it, he can’t

even get into the treatment.” Those words constitute the

testimony of trial counsel, not the evidence presented by the

witness, and this testimony was erroneously considered by the

members during sentencing. See, e.g., United States v. White,

36 M.J. 306, 308 (C.M.A. 1993).

Following a finding of error, the plain error standard

requires a determination of whether the error was plain or

obvious and whether it materially prejudiced Appellant’s

substantial rights. See United States v. Haney, 64 M.J. 101,

105 (C.A.A.F. 2006) (citation omitted). The error was plain

because there was no permissible evidence in the record from

which to argue that Appellant “won’t admit what he has done.”

Appellant did not testify and did not submit an unsworn

statement. Dr. Stone, the source relied upon in trial counsel’s

sentencing argument, did not testify that Appellant had either

admitted or failed to admit the charged offenses from Appellant.

In the course of testifying about the results of psychological

tests, Dr. Stone did not provide a factual basis for trial

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counsel’s erroneous statements about what Appellant did not say

or do.

Trial counsel delivered a sentencing argument that

prominently asserted Appellant’s lack of rehabilitative

potential. Trial counsel argued that Appellant should receive a

longer sentence because he did not admit to committing the

charged offenses: “He needs to be there [treatment facility].

We know it is going to take him a while, because he won’t admit

what he has done. He won’t admit it to his doctor. He won’t

admit it to himself and until he admits it, he can’t even get

into the treatment.” Significantly, the members gave Appellant

a sentence that was six years longer than the sentence requested

by trial counsel. In this context, we cannot be confident that

the panel was not “substantially swayed” by the error in trial

counsel’s sentencing argument. United States v. Reyes, 63 M.J.

265, 267 (C.A.A.F. 2006) (citations and quotation marks

omitted).

Under these circumstances, we should order a rehearing on

the sentence. Accordingly, I respectfully dissent from the

majority opinion’s discussion of Issue I and Issue II, Part (2),

both of which concern trial counsel’s sentencing argument. I

concur in the majority opinion with respect to the balance of

Issue II (other allegations of ineffective assistance of

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counsel) and Issue III (multiplicity and unreasonable

multiplication of charges).

5