This opinion is subject to administrative correction before final disposition.




                               Before
                  TANG, HITESMAN, and STEPHENS,
                      Appellate Military Judges

                        _________________________

                          UNITED STATES
                              Appellee

                                     v.

                      Jeffrey D. PITTMAN
              Senior Chief Petty Officer (E-8), U.S. Navy
                              Appellant

                             No. 201800211

                         Decided: 24 January 2020.

 Appeal from the United States Navy-Marine Corps Trial Judiciary.
 Military Judge: Commander Shane E. Johnson, JAGC, USN. Sentence
 adjudged 16 March 2018 by a general court-martial convened at Joint
 Base Pearl Harbor-Hickam, Hawaii, consisting of officer and enlisted
 members. Sentence approved by the convening authority: reduction to
 pay-grade E-1, forfeiture of all pay and allowances, confinement for 30
 years, and a dishonorable discharge.

 For Appellant: Mr. Frank Spinner, Esq., Captain Nicholas Mote,
 USMC.

 For Appellee: Lieutenant Commander Timothy Ceder, JAGC, USN;
 Captain Brian Farrell, USMC.

                        _________________________

       This opinion does not serve as binding precedent, but
        may be cited as persuasive authority under NMCCA
                 Rule of Appellate Procedure 30.2.

                        _________________________
                 United States v. Pittman, NMCCA No. 201800211


TANG, Senior Judge:
    A panel of members with enlisted representation convicted Appellant,
contrary to his pleas, of: three specifications of Article 120, UCMJ, 1 for com-
mitting sexual acts and sexual contacts by bodily harm against his then-
sixteen-year-old daughter, Sarah; 2 three specifications of Article 120b,
UCMJ, 3 for raping and committing lewd acts upon Sarah before she turned
16; and three specifications of Article 128, UCMJ, 4 for physically abusing his
three other children, Oliver, Mike, and Amy. Appellant was acquitted of four
specifications of Article 120, 120b, and 128.
    Appellant asserts four assignments of error (AOEs): (1) the evidence is le-
gally and factually insufficient to support findings of guilt for the six specifi-
cations charging Appellant sexually abused Sarah; (2) the military judge
abused his discretion by denying the Defense motion to produce Sarah’s
mental health records; (3) the evidence is factually insufficient to support
findings of guilt for the three specifications of Article 128; and (4) the trial
defense counsel were ineffective because they did not call witnesses who
might tend to show that Sarah falsely accused Appellant of sexual abuse. 5 We
find no prejudicial error and affirm.

                                  I. BACKGROUND

   Appellant and his wife had four children. At time of trial, their daughters
Sarah and Amy were 17 and 13 years old, respectively. Their sons Mike and
Oliver were 15 and 16 years old, respectively.
    In April 2017, when Sarah was 16, she was crying while on the phone
with Brian, 6 her boyfriend, and disclosed to him that that Appellant, her
father, had been sexually abusing her for years. Brian called 911 the next day
and reported the crime. Sarah was interviewed and told investigators about
the sexual abuse. Through the investigation, authorities learned that all four



   1   10 U.S.C. § 920 (2012).
   2   All children’s names used in this opinion have been changed.
   3   10 U.S.C. § 920b (2012).
   4   10 U.S.C. § 928 (2012).
   5 AOEs 3 and 4 were raised pursuant to United States v. Grostefon, 

(C.M.A. 1982).
   6   This witness name has also been changed.




                                           2
                 United States v. Pittman, NMCCA No. 201800211


of Appellant’s children alleged he physically abused them. Further facts
necessary to resolve the AOEs are included below.

                                   II. DISCUSSION

A. Legal and Factual Sufficiency of Child Sexual Abuse Convictions

    Charge I, Specifications 1-3, and Charge II, Specifications 1-3, alleged
that Appellant sexually abused Sarah before and after she turned 16. Appel-
lant argues the evidence supporting the convictions to these specifications
was both factually and legally insufficient because Sarah’s testimony was
incredible and contradicted by physical evidence.

   1. Standard of review for legal and factual sufficiency
    When testing for legal sufficiency, we must determine “whether, consider-
ing the evidence in the light most favorable to the prosecution, a reasonable
factfinder could have found all the essential elements beyond a reasonable
doubt.” 7
    We review questions of factual sufficiency de novo. 8 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, [this
Court is] convinced of appellant’s guilt beyond a reasonable doubt.” 9 In con-
ducting this unique appellate function, we take “a fresh, impartial look at the
evidence,” applying “neither a presumption of innocence nor a presumption of
guilt” to “make [our] own independent determination as to whether the evi-
dence constitutes proof of each required element beyond a reasonable
doubt.” 10 Proof beyond a reasonable doubt does not mean, however, that the
evidence must be free from conflict. 11
   We find these convictions were both legally and factually sufficient.
Sarah’s testimony was the only direct evidence of sexual abuse. Her trial



   7   United States v. Meakin, 

, 400-01 (C.A.A.F. 2019).
   8  Art 66(c), UCMJ; United States v. Washington, 

, 399 (C.A.A.F.
2002).
   9 United States v. Rosario, 

, 117 (C.A.A.F. 2017) (citation, internal
quotation marks, and emphasis omitted).
   10   

.
   11   United States v. Goode, 

, 841 (N-M. Ct. Crim. App. 2001).




                                           3
                  United States v. Pittman, NMCCA No. 201800211


testimony alleged all of the elements required to prove the offenses. 12 Review-
ing the entirety of the evidence admitted at trial, we find that a reasonable
factfinder could have found Appellant guilty beyond a reasonable doubt. We
are likewise independently convinced of Appellant’s guilt.

    2. Sarah’s testimony about sexual abuse
    Sarah testified that Appellant physically abused her and her siblings. He
slapped her and her sister and, on several occasions, cornered her two young-
er brothers and repeatedly punched them in the chest and abdomen. He also
repeatedly beat them with the metal buckle end of a belt. Against this back-
drop, Sarah testified that shortly after her twelfth birthday, her father told
her he wanted to share a closer relationship with her. Then he began to sex-
ually abuse her. On the very first instance, he interrupted her while she was
working on homework, summoned her to the master bedroom, and locked the
door. He told her to take off her clothes and to lie down on his bed. He said
that he needed to check that “everything was all right” with her body. 13 Then
he penetrated her anus with his penis.




    12Charge I, Specifications 1-3, were alleged on divers occasions between 5 April
2016 and 24 April 2017, and related to a time period after Sarah turned 16.
    The elements of Charge I, Specification 1, were that Appellant penetrated
Sarah’s anus and vulva with his penis on divers occasions by causing bodily harm to
her because he did so without Sarah’s consent. The elements of Charge I, Specifica-
tion 2, were that Appellant penetrated Sarah’s vulva with his mouth and finger (with
an intent to gratify his sexual desires) on divers occasions, and that he did so without
her consent. Charge I, Specification 3, required proof that, on divers occasions, Appel-
lant touched Sarah’s breasts, buttocks, and inner thigh directly and through the
clothing with an intent to gratify his sexual desires, and without Sarah’s consent.
    Charge II, Specifications 1-3, covered a time period before Sarah turned 16, and
alleged abuse on divers occasions between 28 June 2012 and 4 April 2016. Sarah’s
testimony established that she was under the age of 16 during the time period al-
leged. For Charge II, Specification 1, the Government had to prove that Appellant
penetrated Sarah’s vulva and anus by force based on parental authority. Charge II,
Specification 2, alleged Appellant forcibly (by use of parental authority) penetrated
Sarah’s vulva with his mouth and finger with the intent to gratify his sexual desires.
Charge II, Specification 3, required proof that Appellant touched Sarah’s breasts,
buttocks, and inner thighs, with an intent to gratify his sexual desire, both directly
and through the clothing.
    13   Record at 963.




                                           4
                  United States v. Pittman, NMCCA No. 201800211


   Sarah testified that she did not want him to do this, but she believed she
had no choice because she was afraid he would hurt her or her siblings or
mother if she resisted. She felt disgusted and scared. When she cried out in
pain, Appellant covered her face with a pillow. At some point, he stopped and
ordered her to go to the bathroom within the master bedroom. She did not see
what he did next.
    Sarah testified that Appellant continued and expanded the abuse. He per-
formed oral sex on her, penetrated her vulva with his penis, and touched her
thighs, breasts, and buttocks.
    She testified that he established a routine. Mrs. Pittman was a stay-at-
home mom for many years, only returning to work part-time a few months
before Sarah disclosed the abuse to her boyfriend in April 2017. When Mrs.
Pittman would leave on an errand, Appellant would abuse Sarah. Sarah’s
siblings were usually outside playing with other children, or they were in
their rooms. Appellant would call out Mrs. Pittman’s name to confirm she
was gone. Then he would either go to Sarah’s room or he would summon her
to the master bedroom. He would always lock the door. Sometimes he let her
choose whether they would use her room or his. He would turn the stereo
volume up to what Sarah described as level “twenty,” loud enough that others
in the house could hear the music. 14 He would lay a towel on the bed and
direct her to lie down on it. He would remove her glasses and set them aside.
He had a wet washcloth handy, but Sarah did not see what he did with it. If
she cried, he would cover her face with a pillow. He told her he could get in
trouble if she told anyone what he did. So, for five years, she never told any-
one.
   Sarah testified that Appellant sometimes used a specific brand of liquid
sexual lubricant when he penetrated her. A bottle of that brand of lubricant
was recovered from Appellant’s nightstand, though Mrs. Pittman testified the
couple used the lubricant and maintained it in a visible place on top of their
nightstand.
    Sarah never resisted, but sometimes she told Appellant she was menstru-
ating in order to dissuade him. Sometimes this tactic worked, but not always.
The abuse began monthly, then escalated to weekly. On cross-examination,
Sarah admitted she had also told prosecutors it happened daily—which she
explained to mean almost every day, except when Appellant was at sea.




   14   

                                       5
                  United States v. Pittman, NMCCA No. 201800211


    Sarah testified that Appellant committed all of the charged acts both be-
fore and after she turned 16. 15 She never consented to the acts or did any-
thing to lead her father to believe she wanted to have sex with him. Sarah
testified that she could not recall the details of any specific incident. When
asked why not, she said, “I was in pain and I don’t . . . want to remember that
pain because it physically hurts me.” 16

   3. Circumstances surrounding Sarah’s disclosure
   Shortly before Sarah first disclosed the abuse in April 2017, several
events took place. Appellant gave Sarah a diamond necklace for her birthday,
something she considered to be a lavish gift. Appellant also planned to take
her on a solo father-daughter trip to Colorado for “bonding time.” 17 Also, on a
Saturday night, one day before Sarah’s first disclosure to Brian, Appellant
came into Sarah’s room while her younger sister Amy was sleeping in bed
with her. He used his fingers to penetrate Sarah’s vagina. Sarah became
concerned for Amy.
   While talking to Brian on the phone on Sunday night, she asked him
whether he “ever had a family member who has had a crush on [him],” then
she “said that she does, but it’s her father.” 18
    After telling Brian, Sarah told one of her brothers. That afternoon, una-
ware of Sarah’s disclosures, Appellant came into Sarah’s room and rubbed
lotion on her back, between her thighs, and on her breast. Then he pushed
her onto the bed and “started grabbing and sucking on” her breast. 19 Sarah
made an excuse that she had to leave to pick up her other brother. When she
picked up this brother, she was crying, so she disclosed the abuse to him, too.
Both Brian and Sarah’s brother urged her to report the abuse. Brian called
the police the next day.

   4. Corroborating testimony by Sarah’s siblings and Mrs. Pittman
   There were no direct witnesses to Sarah’s sexual abuse. However, Sarah’s
three siblings described Appellant’s habit of spending time alone with Sarah



   15   

   16   

   17   

   18   

(as relayed during Brian’s testimony).
   19   

                                            6
                 United States v. Pittman, NMCCA No. 201800211


behind locked doors with the music turned up loud when Mrs. Pittman was
away.
    Sarah’s brother Mike was 16 years old at time of trial. He testified that he
was not completely shocked when Sarah told him about the abuse. He ex-
plained:
             Well, my dad . . . would . . . take my sister in his room and
         lock the door when my mom would go away, kind of just blast
         music. And he really didn’t do that too often with us other kids.
         Like, he would every once in a while, but it was more with
         her. 20
    Mike testified he noticed this pattern about a year after the family moved
to Hawaii in 2012. The music was so loud that it could be heard throughout
the house. Mike estimated Appellant did this a few times per week. He ex-
plained that Appellant told Mike and his brother Oliver to knock on the
bedroom door when Mrs. Pittman returned home. When Mike did so, Appel-
lant would open the door to talk to him, then close the door and shortly
thereafter come out of the room.
   Oliver, who was 15 years old at time of trial, also corroborated Appellant’s
habit of taking his children into his room one-on-one. He described:
             One thing that my dad would always do when my mom
         would be going out is he would always go up to his room and
         lock the door. And during that time, he would invite us in, you
         know, in groups, you know, singles sometimes; just me some-
         times, you know, my brother and my sisters. 21
   Oliver did not notice that Appellant took any one child into the room more
than any other. He theorized that when Sarah was alone with Appellant they
were just “chillaxing, listening to music, playing games on his computer,” like
Oliver did with Appellant. 22 But he did not know what actually happened
when they were alone together. Oliver testified that when Appellant took
Sarah into the room alone, he played music very loudly—more loudly than
when he took the other children into the room with him. He also described
how Appellant directed him to knock on the door when Mrs. Pittman re-




   20   

   21   

   22   

States v. Pittman, NMCCA No. 201800211


turned home. When Oliver would alert him, Appellant would stop and “just
go downstairs” and “act like he was doing something else.” 23
    Both Oliver and Mike saw Sarah soon after her disclosure to Brian. They
both described her as being upset. They could tell something was wrong, and
she told each of them—in separate conversations—what had happened. Like
his brother Mike, Oliver testified he was not surprised by Sarah’s disclosure
because he also had suspicions.
   Sarah’s younger sister Amy was 13 at time of trial. Amy testified that
Appellant often had “cuddle time” in his bedroom with Amy and Sarah—
sometimes together but more often with Sarah alone. 24 She testified that
Appellant created a schedule to plan which daughter would cuddle him at
various times. Cuddle time only happened when Mrs. Pittman was away. The
door would be closed and locked when Sarah was having one-on-one cuddle
time with their father.
   Amy testified that Appellant ordered the children to “[j]ust knock on the
door or tell him loudly” when Mrs. Pittman returned home. 25 When she alert-
ed him that Mrs. Pittman was home, either Appellant would walk out imme-
diately or say, “I’m coming in a minute.” 26 Sometimes, Amy would knock on
the door simply because she wanted to join—not because Mrs. Pittman had
returned. She described, “I didn’t hear anything . . . or he would say that we
need, like, more time. Or they’re just quiet.” 27 Sometimes Appellant made
Amy talk to him through the closed door.
   Mrs. Pittman testified she ran almost all of the errands for the family.
She was also out of the house frequently because she was involved in her
church and her children’s activities. Mrs. Pittman did not know that Appel-
lant spent time alone with each of the children behind closed doors. Nor was
she aware that he directed the children to notify him when she returned
home. Her daughters never told her about cuddle time. Until Sarah made her
report, Mrs. Pittman had no idea that Appellant was sexually abusing her.




   23   

   24   

   25   

   26   

   27   

States v. Pittman, NMCCA No. 201800211


   5. Physical evidence and expert testimony presented at trial
    Physical evidence neither confirmed nor ruled out abuse. Sarah had a
sexual assault forensic examination (SAFE) three days after Brian called the
police. A medical doctor performed the exam. The examining doctor did only a
cursory inspection of Sarah’s anus because her allegation—as relayed to
him—did not include accusations of anal penetration. He did not perform a
full anal exam, but his inspection did not note any abnormalities. 28
   The doctor noted minor tissue discoloration and swelling or tenderness of
Sarah’s hymen. 29 Those injuries could have been caused a few days before the
exam. But, because Sarah had engaged in some sexual activity with Brian
shortly before the SAFE, the findings were of little evidentiary value. The
doctor did not notice any signs of chronic genital trauma. The doctor testified
that chronic abuse could result in scarring of the external genitalia. However,
an absence of findings does not disprove abuse occurred. Use of a lubricant
makes injury less likely—as does a lack of force.
    The Defense presented the expert testimony of a master clinician SAFE
examiner who directs the SAFE program at a major Naval hospital. She had
not examined Sarah but opined that swelling of Sarah’s hymen would only be
seen within 24 hours of injury, and therefore that injury was not the result of
Appellant digitally penetrating Sarah the day before her disclosure (four days
before the SAFE). The Defense expert testified that if a female child is vagi-
nally penetrated before she begins menstruating, it is more likely that such
penetration will leave areas of scarring on the hymen. Sarah began menstru-
ating at the age of 13; abuse began at age 12. The Defense expert testified
that she was surprised, given Sarah’s allegations, that the SAFE examiner
did not find any physical evidence of chronic abuse. She opined that the find-
ings were not consistent with Sarah’s allegation of penetrative sexual abuse
spanning 5 years. However, she agreed that the “lack of physical findings
[did] not mean that the abuse did not occur.” 30
    Swabs from the SAFE were analyzed for DNA. Lab analysis revealed that
male DNA of an undetermined source was found on Sarah’s breast, but no
further DNA evidence was found. A set of Sarah’s sheets were tested, but




   28   

   29   

   30   

                                      9
                 United States v. Pittman, NMCCA No. 201800211


Appellant’s DNA was not found. Male DNA in Sarah’s underwear belonged to
her boyfriend, not Appellant.
    Appellant consented to a search of his home, DNA, and electronics. A
search of Appellant’s electronic devices yielded no evidence pertinent to the
investigation. It did not contain any evidence that Appellant ever searched
for or viewed child pornography.
    Both the Government and Defense presented testimony from expert clini-
cal and forensic psychologists. The Government’s expert testified that Sarah’s
disclosure timing and pattern was consistent with the known pattern of
disclosure of victims in “verified” cases of child sexual abuse. 31 She testified it
is not uncommon for another parent to be unaware of sexual abuse. She also
noted children tend to be “compliant” to parental abuse. 32
    The Defense’s psychology expert testified that if abuse occurred almost
daily, as Sarah claimed, the expert would expect “more than three or four
occurrences to be memorable.” 33 Though it would be reasonable that Sarah
would not remember exact dates, the expert expected that her memories
would be “tethered” to “special dates,” such as birthdays, church events,
holidays, etc. 34

   6. Appellant’s statements to NCIS.
   Some of the most incriminating evidence came from Appellant’s own
words. Appellant waived his privilege against self-incrimination and spoke
with NCIS agents for hours. Although he adamantly denied that he ever
sexually abused Sarah, he corroborated several aspects of her allegations. He
admitted he touched her body in innocent ways that he suggested she might
have misunderstood. At times, he painted Sarah as sexually deviant and
deeply disturbed in an apparent effort to discredit her.
    When Appellant arrived at the NCIS office, he saw his family’s car there.
He kept asking the agents what he was being accused of, even offering some
theories and explaining them away before agents could begin questioning
him. When he was told Sarah alleged he sexually abused her, he immediately
stated, “I’m very touchy-feely with all my kids” then explained several benign



   31   

   32   

   33   

   34   

States v. Pittman, NMCCA No. 201800211


acts such as shoulder massages. 35 He also immediately and repeatedly
claimed that Sarah had been acting strangely that weekend. He blamed her
mood on an “incident a couple years ago with a boy, telling her that he wants
to rape her” or because she had gone to church alone for the first time on
Saturday night. 36
    When agents first began interviewing Appellant, other agents were inter-
viewing Sarah. The agents interviewing Appellant, therefore, did not know
all of the details of Sarah’s allegation. Without being asked about them,
Appellant volunteered several details that lend credibility to Sarah’s claims.
    Before being told that Sarah alleged he rubbed lotion on her breasts that
weekend, Appellant described how he walked in on Sarah nude after she said
that her back hurt. Then he put lotion on her back, at her request, because
her skin was dry. She was not wearing a bra or shirt, but she crossed her
arms over her breasts. Then he said he hugged her, and she put her clothes
on. He kept saying his son was in the other room, perhaps insinuating that
the son could walk by at any time. Much later in the interview, he said, “All I
remember is massaging her back and I got the frickin’ front,” but this time he
said Sarah was wearing a bra at the time. 37
    At another point in the interview, Appellant stated that something must
have happened to Sarah the night before, then reiterated that he rubbed
lotion on her back earlier that day. When agents accused him of rubbing
lotion on her genital area, Appellant expanded his statement to say he
“rubbed lotion on her back and on her legs.” 38




   35 Prosecution Exhibit (PE) 1 at 11. PE 1 consisted of portions of Appellant’s vid-
eotaped NCIS interview and a transcript of those interview excerpts. The members
were instructed the transcript was merely an aid to assist them in listening to the
video recording. This Court has reviewed the video and verified the accuracy of the
transcript. For citation purposes, all citations will be to the transcript of PE 1.
   36   

   37 

In PE 1, the Appellant did not gesture to indicate what he meant
when he referred to the “frickin’ front.” After making this statement, he gestured
toward his legs and stated that Sarah was wearing shorts at the time. Based on the
context of the conversation, we believe it is fair to infer that Appellant was referring
to Sarah’s chest area.
   38   

                                          11
                     United States v. Pittman, NMCCA No. 201800211


   Appellant admitted that he did go into Sarah’s bedroom and touch her
while his younger daughter Amy was in bed with her. He said:
             I told my daughter to face the other way and I put her pil-
         low between her legs, because that’s what she likes. I put the
         other pillow between my other daughter’s legs. . . . I told them I
         loved both of them. I asked her if she was okay. She said, yes,
         but not her normal self.” 39
    It was known in the family—at least among Sarah, Appellant, and Mrs.
Pittman—that Sarah suffered from chronic constipation since infancy and
needed assistance to use enemas. At trial, Sarah testified her mother usually
assisted her, but that Appellant did so on one occasion. Mrs. Pittman testified
she knew this happened. However, during his NCIS interview, Appellant
described a violent administration of enemas. He described that Sarah would
lie down naked. He said he would apply sexual lubricant—the same brand
Sarah described and which was recovered from his nightstand—to the tip of
the enema. He said, “and then I hold her down and then I let her go, I let her
go poop. And I say hey, it’s going to hurt a little bit but eventually all that
stuff’s going to come out.” 40
    Most importantly, Appellant agreed that he would frequently spend time
in his bedroom with the door locked and the stereo turned up loud when Mrs.
Pittman was away. He also admitted he would direct his sons to knock on his
door when Mrs. Pittman would return home. However, he claimed he was in
his room alone, incessantly masturbating to pornography and that he had to
do this in secret because Mrs. Pittman viewed pornography as cheating. 41
    After agents finished interviewing Sarah, they had more details and more
questions. When agents asked Appellant why Sarah would know what type of
towel he used to ejaculate into, Appellant said, “Shit, she knows about the
white towels. The white towels are what I use when I [masturbate]”. 42 He
said, “I wet it cause I use [sexual lubricant].” 43 He then said, “She knows
about the cloth which blows my f[***]ing mind, because I thought I was very



   39   

   40   

   41 At trial, Mrs. Pittman agreed that she did not approve of pornography or mas-
turbation.
   42   

   43   

States v. Pittman, NMCCA No. 201800211


secretive with that. Right? When I do my own business in my own room.
Right? Maybe it’s the fact that there was like 20 damn fricking washcloths on
the floor, you know.” 44 He said he would masturbate 10-15 times after coming
home from work within 20 minutes, sometimes so much that he would “lose
count.” 45 He then said, “I’m pretty . . . sure my kids did walk in on me.
There’s no . . . way they didn’t walk in on me.” 46 Before agents told Appellant
Sarah knew about the white washcloths, he had not claimed that his children
knew about his sexual habits. He later claimed Sarah had walked in on him
having sex with Mrs. Pittman.
    Appellant admitted that both Sarah and Amy would cuddle in bed alone
with him after Mrs. Pittman had gotten up. He agreed that Amy sometimes
slept in Sarah’s bed.
    Appellant described several things he claimed Sarah had done in an ap-
parent effort to discredit her as a liar, damaged, confused, or a sexual devi-
ant. He claimed she asked him, one week earlier, “what it means when some-
one says they want to eat my p[***]sy.” 47 He claimed he was pretty sure that
the boy who bullied Sarah “did some stuff to her,” and as a result, he wanted
Sarah physically examined because she was likely damaged by the boy. 48 He
repeatedly urged investigators to “[g]et her checked” for DNA and to let him
know if “she’s had sex with somebody.” 49 He said she “over exaggerates
things” and needs “mental . . . help.” 50 He alleged she “poked her brother in
the butthole” while saying “Badoink,” which was something Appellant had




   44   

   45   

at 107.
   47   

   48  

trial indicated a schoolmate expressed romantic interest in
Sarah, but Sarah rejected him. Sarah alleged the boy and his friends bullied her at
school, to the point that she became suicidal and eventually Mrs. Pittman withdrew
Sarah from school to take undergraduate courses online. Sarah never alleged this
schoolmate sexually assaulted her.
   49   

   50   

                                          13
                     United States v. Pittman, NMCCA No. 201800211


never see her do before. 51 And he claimed she then “grabbed her other broth-
er’s butt.” 52
   Appellant admitted, “I pay a lot of attention to her. That I do.” 53 He
agreed he has told her she is “attractive” 54 and that she sometimes told him
when she was starting her period. He admitted he was planning a daddy-
daughter trip to Denver with Sarah and volunteered that he had to book a
room with only one bed because there were no other suitable rooms available.
     At a certain point in the interrogation, when the agents kept aggressively
accusing him of raping Sarah and asking him about explicit sex acts with her,
Appellant stopped responding. Then he said, “You’re trying to attack the
little boy that’s inside of me.” 55 Appellant then sat idle again as the agents
asked him questions and he didn’t respond. He later claimed he has multiple
personalities, but he insisted that none of his personalities would sexually
abuse Sarah. He maintained, “There’s no f[***]ing way I did something to my
daughter,” but he said, “But somebody did something to my daughter.” 56 He
then urged that he needed the results of the DNA test to find out “what’s
going on with her.” 57

   7. The Defense theories
    The Defense argued that Sarah falsely accused her father of years of sex-
ual abuse because she wanted to protect her relationship with her new boy-
friend Brian (though she had only known him for a few days). The Pittman
family was Mormon. Brian was not. According to the Defense theory, Sarah
knew her parents would not approve of her relationship with Brian, and they
would not approve of any pre-marital sexual contact of any kind. So that they
would be able to date, Sarah and Brian concocted a scheme to falsely allege
Appellant sexually abused Sarah. This would get Appellant out of the way,
and Brian and Sarah would be free to date. On the day Brian called 911 to
report the Appellant, Sarah and Brian took a “selfie” photo of themselves



   51   

   52   

at 55.
   54   

   55   

   56   

   57   

                                          14
                 United States v. Pittman, NMCCA No. 201800211


together in the manager’s office at the commissary where they worked. They
were smiling. According to the Defense, their scheme worked because they
were still dating at the time of trial, and, according to one witness, Sarah had
claimed they were engaged. At a minimum, Brian had given Sarah a “prom-
ise ring.”
   The Defense established during Sarah’s cross-examination that Brian was
the person who first called the police to report the abuse. Sarah agreed that
she suffered from chronic constipation, needed assistance from her parents to
administer enemas, and that Appellant sometimes administered enemas for
her. Sometimes he applied prescription acne medicine to her back, which she
could not do on her own, and she did not object to this assistance.
    Sarah agreed that she had past mental problems—that she had contem-
plated suicide and that she had been admitted for inpatient mental health
treatment in the 2013-2014 timeframe (this was about a year after the abuse
started). She agreed she confided in her mother about problems in school
when a boy at school bullied her after she refused to date him. She was so
upset by the bullying that her mother withdrew her from school to instead
attend an online school from home with only rare on-campus classes. Even
though she confided in her mother then, Sarah confirmed she never told
anyone—even her mother whom she had trusted before—about Appellant’s
abuse until she told Brian in April 2017. In fact, Mrs. Pittman learned of
Sarah’s sexual abuse allegation when a civilian police officer called her the
day Brian called 911.
   Sarah testified the entire household was volatile. Her parents argued “all
the time” and yelled at one another. 58 The children would go hide in their
rooms when this happened. By the time of trial, Mrs. Pittman was divorcing
Appellant. The Defense argued Sarah had a motive to fabricate allegations
against Appellant in order to live with her mother instead of Appellant.
    The Defense presented several witnesses who opined that Sarah, Mrs.
Pittman, and Brian were liars. And the Defense impeached Sarah by contra-
dicting her testimony that she never had a Facebook account with a printout
of what she agreed was her Facebook account. They also impeached Sarah on
a potentially inconsistent statement about whether or how long her sister
Amy bore red marks after Appellant hit her. The Government rehabilitated
Sarah and Mrs. Pittman with the testimony of witnesses who believed they
were truthful people.



   58   Record at 1012.




                                      15
              United States v. Pittman, NMCCA No. 201800211


    In an effort to impeach Brian, the Defense offered evidence that Brian de-
nied at a previous motion session that he had been sexually active with
Sarah around the time she made her allegations. He later admitted he digi-
tally penetrated her shortly before she submitted to the exam but said he did
not interpret the words “sexually active” to include such behavior.

   8. Conclusion
   Considering the evidence in the light most favorable to the prosecution,
we find the convictions are legally sufficient. We are also independently
convinced of Appellant’s guilt beyond a reasonable doubt, and we find his
convictions are also factually sufficient. Sarah’s testimony was credible. It
was corroborated by that of her siblings, her mother, and by Appellant’s own
admissions.
    The physical evidence was inconclusive. Both medical experts agreed that
a lack of physical findings does not disprove sexual abuse. Sarah never re-
sisted, and Appellant used sexual lubricant. Both factors made it less likely
that Sarah would become permanently scarred. Also, Appellant began his
abuse shortly before Sarah started menstruating, the point when Sarah
would be less likely to be injured by penile penetration.
    Appellant’s statements could reasonably be interpreted as evidence that
Appellant was conscious of his own guilt and sought to provide innocent
explanations why Sarah might be confused about what he did. His explana-
tion of forcibly holding Sarah down, while she was naked, to administer a
sexual lubricant-coated enema to her anus, is particularly disturbing. Sarah
never alleged this happened. Further, the Appellant’s insistence that the
schoolmate raped Sarah—perhaps to provide an alternate reason for any
physical findings in a SAFE exam—is contrary to the facts in the record.
Sarah never made such an allegation. It is also reasonable to interpret Appel-
lant’s shifting statements, about where he touched Sarah while applying
lotion to her back and about whether his sons knew he was masturbating, as
evidence of his consciousness of guilt.
    Appellant’s statements about white washcloths could also be viewed as
strong evidence of guilt—that he had to provide a strange and illogical expla-
nation of leaving 20 ejaculate-stained washcloths lying on the floor in his
room for all to see in order to find an innocent reason why Sarah would know
he preferred to ejaculate into wet white washcloths. His claims that Sarah
was a mentally damaged habitual liar run contrary to his actions. Just that
weekend, Appellant was planning to take Sarah on a father-daughter trip to
Denver. He had just bought her a diamond necklace for her birthday, and
there was no evidence he ever sought assistance for her if she had, in fact,
been physically injured by her schoolmate.



                                     16
              United States v. Pittman, NMCCA No. 201800211


    Finally, the Defense theory was not strong. First, Sarah had no reason to
believe her mother—who was arguably a more devout Mormon than Appel-
lant—would be any more likely to accept her relationship with Brian than
Appellant would be. Lying about a serious allegation to get Appellant out of
the house would not necessarily yield success under the Defense theory be-
cause Mrs. Pittman could still try to prevent Sarah from dating Brian. Sec-
ond, Sarah had no reason to fabricate an allegation in order to cover up any
sexual contact she may have had with Brian. No one knew about any sexual
contact until DNA evidence revealed Brian’s DNA was on her underwear.
That analysis was conducted because of Sarah’s report of sexual abuse. Simp-
ly put, there was no reason to lie to cover up a perceived offense that had not
been discovered. Finally, we note that Appellant was a Senior Chief Petty
Officer with over 20 years of service who, until just months before Sarah’s
report, was the sole family breadwinner. As a 16 year-old-teenager, Sarah
was likely smart enough to know that her allegation might reasonably result
in financial disaster for her, her younger siblings, and Mrs. Pittman.
    We find the evidence is legally sufficient to prove Appellant’s guilt of the
specifications alleged in Charges I and II. In addition, we find the evidence
proved the elements of the offenses beyond a reasonable doubt. In contrast,
we believe the Defense theory is fanciful and speculative at best, and we
reject it. The convictions are also factually sufficient. This AOE lacks merit.

B. Sarah’s Mental Health Records
   Appellant argues the military judge committing prejudicial error by deny-
ing the Defense motion to produce Sarah’s mental health records from be-
tween 2013 and 2017 and failing to provide an alternate remedy. We review
the military judge’s denial of the Defense motion for an abuse of discretion,
and Appellant is only entitled to relief if such “abuse of discretion materially
prejudiced his substantial rights.” 59
   Under MILITARY RULE OF EVIDENCE 513:
        A patient has a privilege to refuse to disclose and to prevent
        any other person from disclosing a confidential communication
        made between the patient and a psychotherapist . . . , in a case
        arising under the [UCMJ], if such communication was made for




    United States v. Chisum, 

, 179 (C.A.A.F. 2018) (citing Art. 59(a),
   59

UCMJ).




                                       17
                 United States v. Pittman, NMCCA No. 201800211


         the purpose of facilitating diagnosis or treatment of the pa-
         tient’s mental or emotional condition. 60
   Sarah’s mental health records are covered by this rule. One exception to
the rule under MIL. R. EVID. 513(d)(2) holds that there is no privilege “when
the communication is evidence of child abuse or of neglect, or in a proceeding
in which one spouse is charged with a crime against a child of either
spouse.” 61
   When the parties dispute whether privileged communications should be
produced—even for in camera review—the moving party must show, by a
preponderance of the evidence:
             (A) a specific factual basis demonstrating a reasonable like-
         lihood that the records or communications would yield evidence
         admissible under an exception to the privilege;
            (B) that the requested information meets one of the enu-
         merated exceptions under subsection (d) of [MIL. R. EVID. 513];
            (C) that the information sought is not merely cumulative of
         other information available; and
             (D) that the party made reasonable efforts to obtain the
         same or substantially similar information through non-
         privileged sources. 62
   “If the moving party satisfies all the prongs, but meets no enumerated ex-
ception under MIL. R. EVID. 513(d), then the military judge determines
whether the accused’s constitutional rights still demand production or disclo-
sure of the privileged materials.” 63 If so, the military judge may fashion an
appropriate remedy.
    In this case, the military judge received written filings from the parties
and the victim’s legal counsel, conducted a closed session to allow the parties
to present evidence and argument, and issued a written ruling denying the




   60MILITARY RULE OF EVIDENCE 513(a), MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2016 ed.).
   61   MIL. R. EVID. 513(d)(2).
   62   MIL. R. EVID. 513(e)(3).
   63   J.M. v. Payton-O’Brien, 

, 789-90 (N-M. Ct. Crim. App. 2017).




                                          18
                 United States v. Pittman, NMCCA No. 201800211


Defense motion. 64 Then, for reasons further described below, he denied pro-
duction of the records, even for an in camera review.
    On appeal, Appellant asserts two bases existed to justify production:
(1) that the records could contain any statements Sarah “may have made
about the offenses”; and (2) that the records would show that Sarah had the
opportunity to disclose the sexual abuse “over the same time period that
encompassed her allegations of sexual” abuse, but that she failed to do so. 65
Therefore, the Defense was entitled to the records both for what they might
show—statements by Sarah, if any—but also for what they would likely not
show—any statements by Sarah because she never disclosed the abuse until
she told Brian. We review the military judge’s ruling based on the arguments
made at trial, not those made on appeal.
   In its motion at trial, the Defense requested in camera review of all of
Sarah’s mental health treatment records to any counselor from 2014-2017
because “[Sarah’s] communications are evidence of child abuse in a proceed-
ing in which one spouse is charged with a crime against a child of either
spouse.” 66 The Defense argued the MIL. R. EVID. 513(d)(2) exception applied.
Relying on United States v. Klemick, 67 the Defense reasoned that any com-
munications Sarah made “to . . . counselors [were] evidence of alleged child
abuse” which “would tend to prove, or disprove the charges at hand.” 68
    During oral argument to the military judge, the Defense expanded their
motion to include the “constitutional argument that the Defense has a right
to prepare an adequate defense,” citing J.M. v. Payton-O’Brien. The Defense
argued that Sarah had “some substantial mental health history.” 69 They
argued an in camera review was required to support Appellant’s constitu-
tional right to prepare a defense because the records “could provide another
reasonable explanation of why these allegations were made, why a very trou-




   64 Appellate Exhibits XXX (Defense Motion), XXXIV (Government Response),
XXXIX (Victim’s Legal Counsel’s Response), and XLIX (Military Judge’s Ruling)
pertain.
   65   Appellant’s Brief of 5 Apr 2019 at 17-18.
   66   AE XXX at 4.
   67   

(N-M. Ct. Crim. App. 2006).
   68   AE XXX at 5.
   69   Record at 419.




                                            19
                  United States v. Pittman, NMCCA No. 201800211


bled young woman would feel abandoned and make accusations against her
father.” 70
    In support of their motion, the Defense presented witness testimony and
documents that showed: (1) that Sarah had suffered from depression; (2) that
Brian observed Sarah having apparent panic attacks, which Sarah said were
Post Traumatic Stress Disorder attacks brought on by thoughts of Appellant;
(3) that Sarah had been hospitalized in February 2015 when she had suicidal
thoughts because she had been bullied in school after she rebuffed a peer’s
romantic advances; and (4) that Sarah had been treated by a psychologist
weekly from the time she was hospitalized until the time of pre-trial motions
in this case. Appellant was at sea when Sarah was first hospitalized in Feb-
ruary 2015; he returned to be with her. During the motion hearing, the
Defense had an expert psychologist available to testify but elected not to
present her testimony.
   The military judge ruled that the Defense failed to satisfy the MIL. R.
EVID. 513(e)(3) test. He further held that the “Defense has not shown, by a
preponderance of the evidence, that the accused’s constitutional rights de-
mand production or disclosure of the privileged material.” 71 His ruling did not
constitute an abuse of discretion.

   1. Military judge’s ruling on MIL. R. EVID. 513(e)(3)
    The military judge ruled that the Defense failed to meet its burden on all
four prongs of the Mil. R. Evid. 513(e)(3) test. In order to justify in camera
review, the Defense must show all four prongs are met. Therefore, we need
not assess the military judge’s treatment of each individual prong if we agree
that the Defense failed to meet any one of them. At a minimum, we find the
military judge did not abuse his discretion by holding that the Defense failed
to meet its burden under Prongs C and D.
    The evidence before the military judge showed that Sarah never disclosed
the abuse to anyone before she told Brian in April 2017. Therefore, her
treatment records did not likely contain any statements about the abuse.
Assuming that Sarah’s treatment providers were mandated to report child
abuse, only two scenarios are possible. Either Sarah never disclosed the
abuse, as she later testified at trial, and no such statements existed; or, she
disclosed the abuse but her licensed mental health provider failed to make



   70   

   71   AE XLIX at 7.




                                       20
                 United States v. Pittman, NMCCA No. 201800211


what would almost certainly be a mandatory disclosure to state authorities.
This second possibility is unlikely, but if such statements existed they would
likely constitute prior consistent statements. These statements would bolster
Sarah’s credibility and undermine the Defense line of cross-examination that
Sarah did not report the abuse because it never happened.
    Proof that Sarah never told her counselor about the abuse would be mere-
ly cumulative of the other information already available to the Defense. The
Defense already knew that Sarah had confided in Mrs. Pittman when she
had problems with the boy at school but that she never told Mrs. Pittman
about the abuse. Sarah also regularly attended church, and she was part of
church-organized groups, meaning she had peers and church leaders in whom
she could confide. Even if Sarah had told her counselor about the sexual
abuse, her statements would be merely cumulative of the investigative and
forensic interview statements that were already available to the Defense.
   Additionally, the Defense failed to show that it made reasonable efforts to
pursue the information through non-privileged sources. The Defense present-
ed no evidence that they interviewed Sarah’s friends, church leaders, school
teachers, work colleagues, or neighbors.
   The military judge’s ruling that Defense failed to meet all four prongs of
the Mil. R. Evid. 513(e)(3) test did not constitute an abuse of discretion.

   2. Military Judge’s finding that in camera review was not constitutionally
required
     In J.M. v. Payton-O’Brien, we held that the psychotherapist-patient privi-
lege “must not infringe upon the basic constitutional requirements of due
process and confrontation.”72 Although Congress modified MIL. R. EVID. 513
to remove the exception to the privilege when evidence is constitutionally
required, we held that this “removal . . . is inconsequential insofar as [it] . . .
purports to extinguish due process and confrontation rights.” 73 We held that
“[i]f the moving party satisfies all the prongs [of the MIL. R. EVID. 513(e)(3)
test], but meets no enumerated exception under MIL. R. EVID 513(d), [Prong
B of the MIL. R. EVID. 513(e)(3) test], then the military judge determines
whether the accused’s constitutional rights still demand production or disclo-
sure of the privileged materials.” 74 If so, it is appropriate for the military


   

.
   73   

at 789-90.




                                        21
                  United States v. Pittman, NMCCA No. 201800211


judge to “give[ ] the victim an opportunity to waive the privilege for in camera
review.” 75
    As discussed above, the military judge did not abuse his discretion in rul-
ing that the Defense failed to meet all four prongs of the MIL. R. EVID.
513(e)(3) test. Additionally, the military judge ruled that “the Defense failed
to present a specific factual basis demonstrating a reasonable likelihood that
the records would yield information constitutionally required to be admitted
or disclosed.” 76 We agree.
   The evidence showed that Sarah was admitted for inpatient mental
health treatment, while Appellant was out to sea, because her schoolmate
bullied her—not because she made an allegation that Appellant abused her.
    The Defense argued that an in camera review was constitutionally re-
quired because of Sarah’s “substantial mental health history” 77 and the pos-
sibility that her records would reveal that Sarah deliberately fabricated her
allegations because she was “troubled” and felt “abandoned.” 78 The Defense
then invited the military judge to search all of Sarah’s records for the three
types of evidence this Court listed in J.M. v. Payton-O’Brien as a “non-
exhaustive list illustrat[ing] situations in which the privacy rights of the
victim may yield to the constitutional rights of the accused.” 79 These areas
included: (1) “recantation or other contradictory conduct by the alleged vic-
tim”; (2) “evidence of behavioral, mental, or emotional difficulties of the al-
leged victim”; and (3) “the alleged victim’s inability to accurately perceive,
remember, and relate events.” 80
    Although the Defense cited these possible classes of statements they
sought, they did not meet their burden to articulate why there was a reason-
able likelihood that Sarah’s treatment records would contain such statements
or evidence. The Defense presented no evidence to suggest that Sarah’s coun-
selor ever asked her any questions that would result in exculpatory or incon-
sistent statements about the abuse, such as whether she felt safe in her




   75   

   76   AE XLIV at 7.
   77   Record at 419.
   78   

.
   80   

States v. Pittman, NMCCA No. 201800211


home, whether she was sexually active, or whether she was being abused.
Nor did the Defense make a cogent argument why Sarah’s mental condition
would likely result in a false allegation. They never presented any evidence to
suggest Sarah could not “accurately perceive, remember, and relate events”
or to suggest any other information in her records would have to be disclosed
to preserve Appellant’s constitutional rights. 81
    We note that a “reasonable likelihood” is a low evidentiary bar and that in
camera reviews can be important tools to preserve an accused’s constitutional
right to present a defense. There may be cases in which an in camera review
may be constitutionally required when a victim has undergone years of psy-
chotherapy during the same time period of her alleged abuse. However, in the
circumstances of this case and based on the arguments and evidence the
Defense presented in support of their motion, the military judge did not
abuse his discretion in denying the Defense request. The mere fact that the
victim had a mental health condition and received psychological treatment
during and after her abuse does not—in and of itself—give rise to a reasona-
ble likelihood that her treatment records will contain evidence that is consti-
tutionally required for a defense. None of the arguments the Defense ad-
vanced justified an in camera review. This AOE is without merit.

   3. No material prejudice
    Even if the military judge had abused his discretion, Appellant was not
materially prejudiced and would not be entitled to relief. Sarah confirmed at
trial, multiple times during questioning, that she never disclosed the abuse to
anyone before she told Brian. When asked, “[W]ho’s the first person you told
about what . . . was going on?,” referring to sexual abuse, Sarah replied that
it was Brian who she had only met in April 2017. 82 Defense reconfirmed this
fact on cross-examination, and Sarah agreed that she “didn’t tell anybody for
five years until [she] told [Brian] the day before 911 was called.” 83 She also
confirmed she never reported any physical abuse against her or her siblings
until April 2017.
   In addition, the Defense was permitted to elicit testimony that Sarah was
admitted to the hospital for suicidal ideations sometime around 2013 or




   81   

at 983.
   83   See 

                                      23
                 United States v. Pittman, NMCCA No. 201800211


2014. 84 Mrs. Pittman confirmed this. Mrs. Pittman also testified that Sarah
confided in her about school and “boy” problems but that Sarah never told her
about the sexual abuse. In fact, Mrs. Pittman learned of Sarah’s allegation
when the local police called her. 85 Therefore, it was shown that Sarah elected
to forego potential avenues of reporting the abuse and never did so until April
2017.
    As for the Defense’s second purpose, seeking any statements Sarah may
have made about the abuse, Appellant suffered no prejudice even if the mili-
tary judge had erred. If Sarah’s records revealed that Sarah told her counse-
lor that Appellant was sexually abusing her, the Defense would have uncov-
ered prior consistent statements that would undercut their theory that Sarah
lied in order to protect her relationship with Brian.
    Furthermore, the Government case against Appellant was strong, as dis-
cussed above. Even if the military judge had erred, Appellant was not preju-
diced and is not entitled to relief.

C. Legal and Factual Sufficiency of Child Abuse Convictions
    Pursuant to United States v. Grostefon, Appellant contests the factual suf-
ficiency of his convictions under Charge III, Specifications 1-3. 86 In these
specifications, Appellant was convicted of physically assaulting all of his
children other than Sarah. Appellant raises two lines of argument. First, he
alleges that the three child victims were biased witnesses whose testimony
was incredible. Second, Appellant argues that even if his children’s testimony
is to be believed, his actions constituted proper parental discipline. We note
that, although Appellant’s children testified about spanking, Appellant was
not charged with, nor was he convicted of, spanking his children. He was



   84  During the pre-trial motion hearing, Mrs. Pittman testified Sarah was hospi-
talized in 2015. Neither the military judge’s analysis nor our analysis turns on the
exact date of Sarah’s hospitalization.
   85   

   86 Although the appellant does not challenge the legal sufficiency of these charg-
es, we are mindful that Article 66(c), UCMJ, requires this court “to conduct a de novo
review of [both the] legal and factual sufficiency of the case.” 

. “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.” United States v. Robin-
son, 

, 297-98, (C.A.A.F. 2018) (quoting United States v. Rosario, 

, 117 (C.A.A.F. 2017)). We find the evidence legally sufficient.




                                          24
                     United States v. Pittman, NMCCA No. 201800211


charged and convicted of striking Mike and Oliver on the face, torso, and
body with his hands and a belt and grabbing each boy by the neck with his
hand. He was charged and convicted of striking Amy on the face with his
hand. We reject both of Appellant’s arguments.
    As for Appellant’s argument that his children were biased, he alleges
three sources of bias. He theorizes that Mrs. Pittman tainted the children’s
testimony. Because Mrs. Pittman was divorcing Appellant, she was likely
having conversations with the children which “likely influenced” their testi-
mony, leading them to “exaggerate the punishments” Appellant inflicted. 87
Next, he argues the children were biased because they wanted to live with
their mother after the divorce. Finally, he argues they sought to bolster
Sarah’s sexual abuse allegations by “painting Appellant as a bad actor.” 88
    These arguments are without merit. No evidence in the record supports
these assertions. The three child witnesses provided emotional testimony
that demonstrated that they were conflicted about testifying against their
father. Both of Appellant’s sons testified they still loved their father in spite
of his abuse. Additionally, the children’s testimony was bolstered by Appel-
lant’s own statements indicating that he used what described as tough love
on his children, especially on his sons who bore the brunt of the abuse.
    Appellant admitted that after his Individual Augmentation tour, he was
traumatized but did not seek treatment and instead yelled at his family and
“treat[ed] them like shit,” especially his sons. 89 He admitted he was “rough”
with them. 90 We find the three child witnesses provided credible testimony.
   Likewise, we reject Appellant’s argument that his actions were proper pa-
rental discipline. Appellant told NCIS agents, “I’m Polynesian, I was raised
you spank children.” 91 Spanking is not per se criminal; abuse is.
   Considering the “amount of force used, the instrument used, whereupon
the body the force or instrument was applied, the number of times . . . used,




   87   Supplemental Brief of Appellant of 22 Apr 19 at 5.
   88   

1 at 40-41.
   90   

   91   

                                           25
                 United States v. Pittman, NMCCA No. 201800211


the age and size of the child, and the size of the accused,” we are convinced of
Appellant’s guilt. 92
    Mike, Appellant’s oldest son, testified that Appellant spanked him, but if
he had committed a more serious perceived infraction, “he’d kind of just
throw us around and, like, punch us and stuff like that.” 93 He also whipped
his sons with a belt, sometimes as many as 20 times, on the upper thighs and
buttocks. This punishment was meted out when the boys ate his food or used
his things without permission, disrespected Mrs. Pittman, or failed to clean
the house to Appellant’s satisfaction. Once, Appellant whipped his sons so
violently that he damaged the wall. Another time, he threw a chair and dam-
aged another wall. Photos of the damage were admitted at trial. One time, he
threw a vacuum cleaner. It missed his sons but damaged the wall. Both sons
testified that Appellant sometimes held a machete while yelling at his chil-
dren or while threatening that they needed to get their grades up or else.
    At times, Appellant would force his sons into a corner where they couldn’t
escape. Then he would repeatedly punch them in the chest and stomach with
a closed fist to the point that they had trouble breathing. While beating his
sons, he would call them “bitch,” “cocksucker,” and “worthless.” 94 Mike testi-
fied Appellant punched him in the face. He testified this abuse began in 2011
or 2012. Mike admitted his father became angry with him once when he
learned that Mike had used marijuana. Mike testified that he and Oliver
fantasized about running away.
   Oliver was 15 at time of trial. He suffered the same physical abuse as
Mike described. He testified that Appellant used the metal belt buckle end of
the belt to beat him and his brother. He added, “And he would just continu-
ously hit us until we would start to cry until he would see marks or so on.” 95
He recounted being pushed into a corner so Appellant could repeatedly punch
him in the torso. He recalled the abuse dating back to 2011. He was scared of
Appellant because Appellant would threaten to hurt him even more. He saw
Appellant slap his sisters on the face.




   92  See Record at 2126 (the military judge’s instruction on the defense of parental
discipline).
   93   

   94   

   95   

                                         26
                  United States v. Pittman, NMCCA No. 201800211


   Amy and Sarah both witnessed Appellant abuse his sons. Amy added that
Appellant sometimes beat her brothers when they attempted to “protect my
mother from my dad yelling at her.” 96 The abuse occurred for as long as she
could remember.
   As for the abuse conviction against Amy on a single occasion in April
2017, Amy testified that Appellant smacked her in the face hard and called
her a “fat bitch.” 97 He did this because she wore his sweatshirt and stretched
out the cuffs. Mrs. Pittman and Sarah witnessed this incident and testified
about it at trial.
    For her part, Mrs. Pittman witnessed some of the physical abuse but was
mostly powerless to stop it. Mrs. Pittman testified she had witnessed Appel-
lant slapping and “[c]ornering” the children. 98 She nearly divorced Appellant
in 2011 because of an incident when he severely beat Oliver. She described
“hearing a shriek from my son. A scream that I’d never heard from him be-
fore.” 99 She ran to the room to find Appellant holding Oliver up by his neck,
pinning him against a door. However, after filing for a restraining order, she
elected to remain married to Appellant when he professed that he had
changed. But he apparently resumed the abuse.
    Based on the witnesses’ testimony, we easily find that the defense of pa-
rental discipline did not apply. Appellant’s actions demonstrated that he
acted out of anger, using force that was excessive. He demeaned, bullied, and
terrorized his children to relieve his own stress. The degree of force used and
the manner in which it was inflicted was wholly inconsistent with proper
parental discipline. We are convinced the Government proved Appellant’s
guilt beyond a reasonable doubt for these offenses.

D. Ineffective Assistance of Counsel
   We review claims of ineffective assistance of counsel de novo. 100 Appellant
bears the burden and must clear “a high bar” to prevail on such a claim. 101 He
must show: (1) that his counsel’s performance was deficient and (2) that, but


   96   

   97   

   98   

   99   

   100   United States v. Akbar, 

, 379 (C.A.A.F. 2015).
   101   

                                           27
                  United States v. Pittman, NMCCA No. 201800211


for his counsel’s deficient performance, there is a reasonable probability that
the result of the proceeding would have been different. 102
    Specifically, in this assignment of error, raised pursuant to United States
v. Grostefon, Appellant asserts that his trial defense counsel should have
presented the testimony of three witnesses who would testify that Brian was
a liar who was “capable of convincing [Sarah] that she could get Appellant
out of her home by claiming that Appellant assaulted her.” 103 Appellant ar-
gues the Defense should have presented these witnesses’ testimony to relay
specific out-of-court conversations they had with Brian and their opinion that
Brian “was capable of manipulating [Sarah] into making a false claim against
her father.” 104
    The trial defense counsel called one of these witnesses to testify that
Brian had a poor character for truthfulness. The rules of evidence would not
permit presentation of the opinions Appellant claims his counsel should have
offered. Although the trial team did not offer these specific witnesses’ testi-
mony, they presented this defense at trial. It was the Defense’s “entire theory
of the case” that Sarah and Brian concocted a scheme to falsely accuse Appel-
lant of sexually abusing Sarah so that the young couple could be together. 105
The trial defense team developed this theme during cross-examination of the
Government’s witnesses and in the Defense case in chief. Ultimately, the
members rejected that theory, and we do likewise. This AOE lacks merit.

                                   III. CONCLUSION

    After careful consideration of the record and briefs of appellate counsel,
we have determined that the approved findings and sentence are correct in
law and fact and that no error materially prejudicial to Appellant’s substan-
tial rights occurred. Arts. 59 and 66, UCMJ. The findings and sentence as
approved by the convening authority are AFFIRMED.
   Senior Judge HITESMAN and Judge STEPHENS concur.




   102   

v. Washington, 

, 688, 694 (1984)).
   103   Appellant’s Supplemental Brief of 22 Apr 2019 at 9.
   104   

   105   Record at 1716.




                                            28
United States v. Pittman, NMCCA No. 201800211


                FOR THE COURT:




                RODGER A. DREW, JR.
                Clerk of Court




                     29