U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                         ________________________

                              No. ACM 39662
                         ________________________

                            UNITED STATES
                                Appellee
                                      v.
                          Joshua A. DAVY
          Technical Sergeant (E-6), U.S. Air Force, Appellant
                         ________________________

        Appeal from the United States Air Force Trial Judiciary
                        Decided 9 September 2020
                         ________________________

Military Judge: L. Martin Powell.
Approved sentence: Dishonorable discharge, confinement for 4 years,
and reduction to E-1. Sentence adjudged 11 December 2018 by GCM
convened at Little Rock Air Force Base, Arkansas.
For Appellant: Major Mark J. Schwartz, USAF.
For Appellee: Lieutenant Colonel G. Matt Osborn, USAF; Mary Ellen
Payne, Esquire.
Before POSCH, RICHARDSON, and MEGINLEY, Appellate Military
Judges.
Judge MEGINLEY delivered the opinion of the court, in which Senior
Judge POSCH and Judge RICHARDSON joined.
                         ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 30.4.
                       ________________________
MEGINLEY, Judge:
    A general court-martial composed of a military judge sitting alone con-
victed Appellant, in accordance with his pleas and a pretrial agreement (PTA),
of three specifications of sexual abuse of his stepdaughter, KW, a child under
                     United States v. Davy, No. ACM 39662




the age of 16 years in violation of Article 120b, Uniform Code of Military Jus-
tice (UCMJ), 10 U.S.C. § 920b.1 The military judge sentenced Appellant to a
dishonorable discharge, confinement for 102 months, and reduction to the
grade of E-1.
    Consistent with the terms of the PTA, after announcement of sentence, the
convening authority withdrew, and dismissed with prejudice, three other spec-
ifications of sexual abuse of KW, and, at action, the convening authority ap-
proved four years of confinement. The convening authority also waived all
mandatory forfeitures for a period of six months after action, for the benefit of
Appellant’s dependent children. Otherwise, the convening authority approved
the sentence as adjudged.
    On appeal, Appellant raises one issue pursuant to United States v.
Grostefon, 

(C.M.A. 1982): whether Appellant was denied effective
assistance of counsel because trial defense counsel failed to present evidence
of Appellant’s addiction to alcohol in mitigation. We find Appellant has not
shown that his counsel were ineffective in their representation, and affirm the
findings and sentence.

                                  I. BACKGROUND
    Appellant first entered active duty in 2003. After completing his first en-
listment in June 2008, he separated from the Air Force and then reenlisted in
January 2011. At the time of the charged conduct, between on or about 1 July
2017 and on or about 19 December 2017, Appellant was stationed at Little
Rock Air Force Base, Arkansas.
    The victim in this case is Appellant’s stepdaughter, KW. Appellant began
dating KW’s mother, Technical Sergeant (TSgt) SD, when KW was three years
old, and married TSgt SD in January 2011 when KW was six years old. KW
had no relationship with her biological father and referred to Appellant as
“Dad.” At the time of the charged conduct, Appellant and TSgt SD maintained
a family home with KW and their youngest daughters, aged three and five.
TSgt SD was deployed when Appellant engaged in the charged conduct.
   In October 2017, shortly before KW’s thirteeth birthday, Appellant at-
tempted to cuddle with her on the couch in the family home. KW moved to the


1All references in this opinion to the Uniform Code of Military Justice are to the Man-
ual for Courts-Martial, United States (2016 ed.).



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                        United States v. Davy, No. ACM 39662




floor and Appellant followed. KW then moved again to the couch, and Appel-
lant followed again, sat next to KW, and prevented her from getting up. Appel-
lant placed his hand up KW’s shirt and bra and touched her breast with his
hand.2 Appellant then put his hand down KW’s pants beneath her underwear
and touched KW’s vagina.3 Appellant also took KW’s hand and made her touch
his erect penis.4 KW screamed and ran to her bedroom. Later in the evening,
Appellant made KW sleep in his bed. Appellant slept under the blanket, while
KW slept on top. According to Appellant’s statements during his providence
inquiry with the military judge, he did not recall going to bed that night, but
when he woke up the next morning, he was not wearing any pants, which he
later found covered in beer next to the couch. Appellant described to the mili-
tary judge his reaction, explaining he was “horrified because [he] was not sure
[he] had a complete memory of everything that happened with KW.” During
the providency inquiry, Appellant noted he apologized to KW and character-
ized what he did “as being mean to her.”
    Described in the stipulation of fact admitted at trial without objection is
the conduct that formed the basis of two specifications the convening authority
withdrew and dismissed.5 Specifically, on 19 December 2017, while making
dinner, Appellant told KW he thought she was prettier than her mom, and put
his hands on her waist in the manner he was accustomed to touching his
spouse. After dinner, Appellant put KW’s sisters to bed earlier than their usual
bedtime. Appellant then told KW that she had to choose from two options: she
could “either go in the bedroom and have sex with him or her family would
disappear.” Appellant took off his wedding band and put it on KW’s finger. KW
ran to her room, locked her door, and called 9-1-1. While she was on the phone,
Appellant tried to get into her bedroom, but KW pushed her feet against her
nightstand with her back against the bedroom door until the police arrived.


2   This misconduct is reflected on the charge sheet as Specification 2 of the Charge.
3   This misconduct is reflected on the charge sheet as Specification 1 of the Charge.
4 This misconduct was reflected in Specification 3. Appellant further stipulated that
after he made KW touch his penis, he removed his pants to show KW his erect penis.
This misconduct was alleged in Specification 5, which was withdrawn and dismissed
with prejudice pursuant to the PTA.
5 Specification 4 alleged that Appellant committed lewd acts upon KW by touching
KW’s waist through her clothing. Specification 6 alleged that Appellant committed a
lewd act upon KW by telling KW if she did not have sex with Appellant that her mother
and sisters would disappear.


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                     United States v. Davy, No. ACM 39662




KW was scared because she did not know what Appellant would do. When the
police arrived, Appellant admitted that he touched KW inappropriately, and
was promptly arrested and transported to jail. Appellant’s wife learned of the
allegations as she prepared to redeploy and return home.

                                 II. DISCUSSION
A. Additional Background
    On appeal, Appellant alleges his trial defense counsel were ineffective. Ap-
pellant appears to make the following assertions in a declaration this court
ordered attached to the record: (1) that, in the year before his trial, Appellant
was diagnosed with severe alcoholism, major depression and general anxiety
disorder; however, trial defense counsel rebuffed his request to request an ex-
pert (or specialist) on alcoholism; (2) that failing to mention his alcoholism and
lack of treatment negatively affected Appellant’s PTA and sentencing; and (3)
his trial defense counsel did not do enough to counter a perception that Appel-
lant was of sound mind at the time of his arrest for the December 2017 incident
and not under the influence of any substance. In concluding his declaration,
Appellant acknowledges that “being under the influence of alcohol, no matter
how severe, does not free [him] of responsibility for [his] actions,” but contends
trial defense counsels’s failure to “present . . . the severity of [his] alcoholism,
the behaviors and actions indicative in alcoholics[,] or even the fact that [he]
was under the influence [of alcohol during the offenses]” deprived the military
judge of information needed to adjudge a fair and appropriate sentence. With
respect to Appellant’s third assertion, regarding the December 2017 incident,
we have carefully considered Appellant’s contention. Given that the specifica-
tions related to this incident were withdrawn and dismissed with prejudice
pursuant to the PTA, we find this assertion does not require further discussion
or warrant relief. See United States v. Matias, 

, 361 (C.M.A. 1987).
    In response to Appellant’s claims involving alcoholism, we ordered and re-
ceived declarations from Appellant’s trial defense counsel, Captain (Capt) WA
and Capt JC, which refute Appellant’s claims and are generally consistent with
one another. We have considered whether a post-trial evidentiary hearing is
required to resolve any factual disputes. Reviewing counsel’s declarations and
the record as a whole, we are convinced such a hearing is unnecessary. See
United States v. Ginn, 

, 248 (C.A.A.F. 1997); United States v.
DuBay, 

, 413 (C.M.A. 1967) (per curiam).
    Capt WA states while Appellant’s “history with alcohol was discussed, it
strategically was not overly emphasized,” as Capt WA did not want to “jeop-
ardize the providence of [Appellant’s] guilty plea.” Instead, the defense team
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                    United States v. Davy, No. ACM 39662




chose to focus on Appellant’s “years of positive contributions in the Air Force
and to his family, as well as his acceptance of responsibility for his actions,” a
strategy discussed with, and approved by, Appellant. The trial defense team
“purposely avoided the appearance that [Appellant] was just some alcoholic
trying to shift blame to the alcohol,” and, in Capt WA’s opinion, the “seasoned
prosecutors we faced would have easily countered, arguing that [Appellant]
was not truly accepting responsibility.” Further, Capt WA states, “we did not
want the military judge to determine that additional confinement was neces-
sary to protect society because [Appellant] may have a never-ending addiction
to alcohol, which causes [Appellant] to commit violent sex crimes against chil-
dren.” Finally, Capt WA indicates, “If [Appellant] believed there was additional
mitigating evidence regarding his ‘alcoholism’ that he wanted presented, he
did not relay or provide such evidence to Capt [JC] or me.” Capt WA concludes,
“That said, I still believe we pursued a strategy most likely to achieve the best
result possible for [Appellant].”
    Capt JC’s declaration is similar to Capt WA’s. Most notably, Capt JC points
out that the PTA discussions were initiated at the request of Appellant and
both he and Capt WA discussed with Appellant the provision they “would not
request production of any witnesses for the findings or sentencing phase of
trial.” Capt JC states Appellant understood the terms of the PTA and Appel-
lant “was given every opportunity to ask questions or modify the terms of his
PTA” and at “no point prior to submitting the final proposed PTA did [Appel-
lant] indicate that he would be unwilling to submit a PTA absent the approval
of an expert in alcohol abuse disorders.” Capt JC adds that he and Capt WA
“spent a considerable amount of time discussing a sentencing theme and theory
before and after a PTA was submitted for consideration in [Appellant’s] case,”
and they “believed focusing on [Appellant’s] alcohol abuse as mitigation evi-
dence created multiple concerns for the presentation of [their] case.”
    Capt JC states he and Capt WA “had multiple discussions with [Appellant]
prior to his sentencing about [their] concerns with focusing too heavily on his
alcoholism during sentencing,” and Appellant understood and agreed with
their sentencing strategy. Capt JC concludes, “[Appellant’s] mental health and
alcoholism was thoroughly assessed by Capt [WA] and I prior to [Appellant’s]
sentencing hearing. Although this was a possible sentencing strategy, we be-
lieved it more appropriate to focus [Appellant’s] sentencing case on other as-
pects of his life to ensure he could maximize his mitigation potential during
sentencing without fearing that his sentencing case would come off as excuse
making or shifting the blame for his actions to alcohol abuse.”



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                     United States v. Davy, No. ACM 39662




B. Law
    We review allegations of ineffective assistance de novo. United States v.
Gooch, 

, 362 (C.A.A.F. 2011) (citing United States v. Mazza, 

, 474 (C.A.A.F. 2009)). In order for Appellant to prevail on a claim of inef-
fective assistance of counsel, he must demonstrate that counsel’s performance
was deficient and that the deficiency resulted in prejudice. Strickland v. Wash-
ington, 

, 687 (1984).
    We employ a presumption of competence, and apply a three-part test in
assessing whether that presumption has been overcome: (1) “is there a reason-
able explanation for counsel’s actions?”; (2) “did defense counsel’s level of ad-
vocacy ‘fall measurably below the performance . . . [ordinarily expected] of fal-
lible lawyers’?”; and (3) “[i]f defense counsel was ineffective, is there ‘a reason-
able probability that, absent the errors,’ there would have been a different re-
sult?” 

(omission and alteration in original) (quoting
United States v. Polk, 

, 153 (C.M.A. 1991)).
    “Defense counsel do not perform deficiently when they make a strategic
decision to accept a risk or forego a potential benefit, where it is objectively
reasonable to do so.” United States v. Datavs, 

, 424 (C.A.A.F. 2012)
(citing 

–63) (additional citation omitted). In reviewing
the decisions and actions of trial defense counsel, this court does not second-
guess strategic or tactical decisions. See United States v. Morgan, 

,
410 (C.M.A. 1993) (citations omitted). It is only in those limited circumstances
where a purported “strategic” or “deliberate” decision is unreasonable or based
on inadequate investigation that it can provide the foundation for a finding of
ineffective assistance. See United States v. Davis, 

, 474 (C.A.A.F.
2005).
C. Analysis
    Appellant claims his trial defense counsel were ineffective because they
failed to address the severity of his alcoholism. We disagree, as the record
shows the opposite is true. Regarding his first assertion, that Appellant’s re-
quest for an expert (or specialist) on alcoholism was rebuffed, both trial defense
counsel outlined a reasonable alternate strategy with Appellant. They ex-
pressed their concerns to Appellant about focusing too much on alcohol abuse
as mitigation, and believed a better approach was to focus on other aspects of
his life to ensure he could maximize his mitigation potential during sentencing.
Defense counsel also did not want to convey that Appellant was shifting the
blame for his actions to alcohol abuse. Finally, Capt WA indicated Appellant
did not provide additional mitigating evidence regarding his alcohol abuse to
him or Capt JC for presentation at the sentencing hearing.
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                    United States v. Davy, No. ACM 39662




    Further, Appellant specifically agreed not to request the production of any
witnesses as part of his PTA. As shown by Capt JC’s declaration, Appellant
knew the terms of the PTA, understood the provision about not requesting pro-
duction of witnesses, and Appellant at “no point prior to submitting the final
proposed PTA . . . indicate[d] that he would be unwilling to submit a PTA ab-
sent the approval of an expert in alcohol abuse disorders.” Further, the military
judge specifically asked Appellant about this provision, and Appellant stated
he understood it and had no questions. Appellant later stated no one forced or
coerced him into entering the PTA. In return for waiving an expert or “special-
ist” at government expense, Appellant received a favorable PTA, which signif-
icantly reduced the amount of time he might have been confined. Finally, even
if Appellant had chosen to litigate his case instead of pleading guilty, Appellant
has not shown he would have prevailed in moving the court to order production
of an expert consultant. See United States v. Freeman, 

, 458
(C.A.A.F. 2018). Appellant has failed to demonstrate that any error by his trial
defense team prejudiced him on this issue.
    With respect to Appellant’s second assertion, that by failing to mention his
alcoholism and lack of treatment at trial, Appellant’s PTA and sentencing were
negatively influenced, we note that Appellant’s alcoholism and use of alcohol
during the commission of his offenses were mentioned throughout his court-
martial, including during his providence inquiry, in the stipulation of fact, and
in sentencing, through documentary evidence and witness testimony. Appel-
lant also discussed his alcoholism in his written and oral unsworn statements;
the oral unsworn statement was presented in a question-and-answer format,
where Appellant discussed his struggles with alcohol and his recent successes
in treatment.
    Trial defense counsel could have chosen a different sentencing strategy.
However, the record shows their trial strategy in this case was reasonable.
Their strategy brought relevant information to the attention of the military
judge, and reduced both Appellant’s confinement liability and the sentence
that was approved by the convening authority. We evaluate trial defense coun-
sel’s performance not by the success of their strategy, “but rather whether
counsel made . . . objectively reasonable choice[s] in strategy from the alterna-
tives available at the [trial].” United States v. Dewrell, 

, 136
(C.A.A.F. 2001) (quoting United States v. Hughes, 

, 718 (A.F. Ct.
Crim. App. 1998), aff’d, 

(C.A.A.F. 2000)). Under these circum-
stances, Appellant fails to overcome the strong presumption that counsel’s per-
formance was within the wide range of reasonable professional assistance.



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                      United States v. Davy, No. ACM 39662




                                 III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and sentence are AFFIRMED.6


                       FOR THE COURT


                       AARON L. JONES
                       Deputy Clerk of the Court




6 There were six specifications to one charge in Appellant’s case, but the court-martial
order (CMO) reflects “Charge I” and not “Charge” only. The charge sheet properly re-
flects the Charge. We order a corrected CMO.

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