United States v. Private E2 KELLAN D. MARK ( 2017 )

CORRECTED COPY
UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
MULLIGAN, FEBBO, and WOLFE
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E2 KELLAN D. MARK
United States Army, Appellant
ARMY 20160101
Headquarters, 21st Theater Sustainment Command
David H. Robertson, Military Judge
Colonel Paula I. Schasberger, Staff Judge Advocate
For Appellant: Lieutenant Colonel Melissa R. Covolesky, JA; Captain Katherine L.
DePaul, JA (on brief); Lieutenant Colonel Christopher D. Carrier, JA; Captain
Katherine L. DePaul, JA (reply brief).
For Appellee: Lieutenant Colonel A.G. Courie III, JA; Major Melissa Dasgupta
Smith, JA; Captain Christopher A. Clausen, JA (on brief).
23 October 2017
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SUMMARY DISPOSITION
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Per Curiam:
In his sole assignment of error, appellant asks us to grant “appropriate relief”
because the military judge in his Military Rule of Evidence [hereinafter Mil. R.
Evid.] 413 instruction told the panel that they could consider charged misconduct. 1
Although this instruction was error pursuant to United States v. Hills, 75 M.J. 350(C.A.A.F. 2016), we find that appellant waived this error when he specifically
withdrew any objection to the instruction.
1
Appellant raises several non-frivolous matters pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982). However, appellant did not object at trial
when SPC JB repeatedly stated that appellant would know the answer to the defense
counsel’s questions. Appellant also did not object to the trial counsel’s closing
argument. We do not find either of these identified issues constitute plain error.
Appellant’s remaining Grostefon issues likewise do not warrant relief.
MARK—ARMY 20160101
A general court-martial composed of officer and enlisted members convicted
appellant of one specification of abusive sexual contact, two specifications of
assault consummated by battery, one specification of assault with intent to commit
rape, and three specifications of communicating a threat in violation of Articles 120,
128, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920, 928, and 934
(2012 & Supp. II) [hereinafter UCMJ]. The convening authority approved the
adjudged sentence of a dishonorable discharge and five years confinement. This
case is before us for review pursuant to Article 66, UCMJ.
DISCUSSION
The offenses all occurred when three soldiers stationed in Germany took a
weekend getaway to Prague, Czech Republic. At trial, the victim, SPC JB, credibly
described violent attacks by appellant when she rebuffed his desire to have sexual
intercourse with her. Specialist JB’s testimony was corroborated by the testimony of
the third soldier, physical evidence, including ripped clothing, a forensic
examination, and deoxyribonucleic acid evidence.
In pretrial motions, the government provided notice under Mil. R. Evid. 413
that it intended to use both charged and uncharged conduct under the rule. The
defense filed a response, objecting to the government’s motion. However, the
defense response was focused on that part of the government’s motion that sought to
admit uncharged conduct.
At a pretrial Article 39(a) session the military judge addressed the motion as
follows:
MJ: The next motion the court will address briefly is [the]
government’s motion to admit evidence under M. R. E.
413. . . . During the R.C.M. 802 session and via email the
government informed the court that it did not plan to
admit any 413 evidence as it related to [the uncharged
victim] PFC [W]; and, therefore, the only issues were as to
PFC [JB], which is the charged alleged victim. Is that
correct Government?
ATC: Yes, Your Honor.
MJ: And, Defense, based on that, you didn’t oppose the
413 notice?
DC: Yes, Your Honor.
MJ: Okay. Thank you, Counsel.
2
MARK—ARMY 20160101
Given the appellant specifically withdrew any objection to the use of Mil. R.
Evid. 413 as applied to charged conduct, we find appellant has waived any Hills
error. Having reviewed the record of trial, to include the overwhelming evidence of
guilt, we see no reason to notice the waived error and provide appellant relief. 2
CONCLUSION
The findings of guilty and the sentence are AFFIRMED.
FOR THE
FOR THECOURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court
*2
We briefly note two issues. First, neither party addressed in their filings the legal
significance of appellant having withdrawn his objection to the Mil. R. Evid. 413
notice. While government counsel noted the withdrawal, they did not argue its
significance. Second, in future cases, we believe we would benefit from the parties
specifically addressing whether this court should exercise its unique authority under
Article 66(c), UCMJ, to notice waived and forfeited error. While we review the
entire record to determine whether we should notice waived and forfeited error, the
adversarial perspective of the parties may identify issues or interpret evidence in a
manner that would benefit our analysis.
* Corrected
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