Air Guardsman’s conviction is set aside in ruling

Instruction to jury should not have applied, panel rules.

The Air Force Court of Criminal Appeals has set aside a conviction and sentencing of an Ohio Air National Guardsman who had been found guilty of a charge of abusive sexual conduct, according to military court records.

The three-judge panel found this month a military judge’s instruction to the jury they may consider related charges in the same case when reaching a verdict should not have applied in the December 2015 court martial proceedings of Master Sgt. Steven K. Pflug, based on a later subsequent higher court ruling, records show.

A military jury at Wright-Patterson Air Force Base had found the Guardsman guilty of abusive sexual conduct, acquitted the master sergeant of a similar accusation, and acquitted him on a charge of assault consummated by battery, according to court records.

Pflug had pleaded not guilty to all charges, records show.

“We are ecstatic that the Air Forced Court of Criminal Appeals correctly applied the law and overturned MSgt Pflug’s conviction,” defense attorney Brian A. Pristera said in an email. “I wholeheartedly believed in his case from the first time I spoke to MSgt Pflug following his conviction. We are very happy for him and his family as they are now able to start putting their lives, and MSgt Pflug’s career, back together.”

Pflug was assigned to the 121st Comptroller Flight at Rickenbacher Air National Guard Base in Columbus, and was on temporary duty at Kadena Air Base, Japan in July 2014 at the time of the alleged incident, court records show.

In a Feb. 20 ruling, the three-judge Court of Criminal Appeals panel cited a Court of Appeals of the Armed Forces ruling in June 2016 in a separate case of another service member that determined, in part, jury members may not consider related sexual assault charges in the same case when reaching a verdict unless the evidence is “overwhelming,” according an Air Force statement.

Because the Guardsman did not plead guilty to any charges, the Air Force Court of Criminal Appeals determined it could not be confident there was “no reasonable possibility that the erroneous instruction contributed to the verdict,” the statement said.

If Air Force prosecutors do not appeal and ask for a new trial, the Court of Criminal Appeals decision will set aside the conviction and a sentencing of 20 days in confinement, reduction in rank to a senior airman and a formal reprimand, according to the Air Force and court records.

The abusive sexual conduct conviction that was set aside involved the alleged female victim’s hand touching the defendant’s pants over his genitals without her consent, court records said.

The defendant appealed the verdict “alleging the evidence was legally and factually insufficient to support the finding of guilty and overcome the mistake as to consent,” the Court of Criminal Appeals ruling said. Also, the defendant contended the military judge in the court martial proceedings “erroneously” applied a military rule of evidence.

Based on case law at the time, the judge had issued an instruction to the jury of Air Force officers they may consider the propensity of evidence of other alleged sexual assault offenses in the same case, the Air Force said. “During closing arguments, the prosecution made several references to the similarities between each of the charged offenses,” the Air Force added in a statement.

The Air Force Judge Advocate General has 30 to 60 days to decide whether to appeal the latest decision, according to Air Force spokeswoman Capt. Kathleen Atanasoff.

If no appeal occurs, “it will be as though the initial trial never happened,” and the Guardsman will return to his former rank with no conviction, the spokeswoman said in an email.

The command will communicate with the alleged victims to offer their views prior to deciding whether to pursue a new trial, Atanasoff said.

The Air Force did not release the age of city of residence for the appellant.