United States v. Terral ( 2014 )

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
F.D. MITCHELL, J.A. FISCHER, R.Q. WARD
Appellate Military Judges
UNITED STATES OF AMERICA
v.
ADAM C. TERRAL
LIEUTENANT (O-3), U.S. NAVY
NMCCA 201300273
GENERAL COURT-MARTIAL
Sentence Adjudged: 11 January 2013.
Military Judge: CAPT Colleen Glaser-Allen, JAGC, USN.
Convening Authority: Commander, Navy Region Mid-Atlantic,
Norfolk, VA.
Staff Judge Advocate's Recommendation: CDR S.J. Gawronski,
JAGC, USN.
For Appellant: LT Jessica Fickey, JAGC, USN.
For Appellee: CDR James Carsten, JAGC, USN; Maj David
Roberts, USMC; LT Lindsay Geiselman, JAGC, USN.
30 October 2014
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OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
PER CURIAM:
Members at a general court-martial convicted the appellant,
contrary to his pleas, of violating a lawful order
(fraternization) and wrongful sexual contact, in violation of
Articles 92 and 120, Uniform Code of Military Justice, 10 U.S.C.
§§ 892 and 920. The convening authority (CA) approved the
adjudged sentence of confinement for one year and a dismissal
and, except for the dismissal, ordered it executed.
On appeal, the appellant raises multiple assignments of
error.1 We address three; legal and factual sufficiency of the
wrongful sexual contact conviction, other acts evidence admitted
under MILITARY RULE OF EVIDENCE 404(b), MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2012 ed.), and post-trial delay. After carefully
considering the record of trial and the submissions of the
parties, we are convinced that the findings and the sentence are
correct in law and fact, and that no error materially
prejudicial to the substantial rights of the appellant was
committed. Arts. 59(a) and 66(c), UCMJ.
Background
Married and 36 years old, the appellant, recently spot
promoted to Lieutenant Commander, was the Chief Engineer aboard
the USS OAKLEY HILL (LSD 51) at the time of his offenses.
Ensign (ENS) SW, a recent arrival to the ship, was serving at
the time as the Electrical Officer within the Engineering
Department.
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(1) That the guilty finding for wrongful sexual contact is legally and
factually insufficient;
(2) That the military judge erred by admitting evidence under MILITARY RULE OF
EVIDENCE 404(b), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2008 ed.);
(3) That the military judge erred in denying the appellant’s request for
production of a good military character witness;
(4) That unreasonable post-trial delay prejudiced the appellant;
(5) That the appearance of unlawful command influence tainted the CA in
taking post-trial action;
(6) That the military judge erred by denying the appellant’s request to admit
evidence under MIL. R. EVID. 412;
(7) That the military judge erred in denying production of evidence relating
to a past relationship of the victim; and
(8) That trial defense counsel were ineffective.
Assignments of error numbered (6) – (8) were raised pursuant to United States
v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We have reviewed those assignments
of error not addressed herein and find them without merit. United States v.
Clifton, 35 M.J. 79 (C.M.A. 1992).
2
On 24 January 2012, OAKLEY HILL was in port overnight at
Yorktown, Virginia. That evening, the appellant accompanied ENS
SW to the liberty bus and the two discussed ENS SW’s plans to go
to the base club. Advising her that “he didn’t think it would
be good for [her] to go out where [she] would only be around
junior sailors”, the appellant instead invited her to accompany
him to the movies. Record at 566. The two then left the
liberty bus and the appellant drove them in his wife’s car to
the movie theater.
After the movie ended, the appellant suggested that they
get something to eat and the two went to a nearby fast food
restaurant. While eating in the car, the appellant began
talking about other female members of the crew and how she
“seem[ed] like the only one that wouldn’t tell anyone else if
something happened.” Id. at 572. He then asked her what she
would do if “he took her to a dark place” and she replied, “I
don’t know.” Id. After he made several other similar remarks,
he drove to a nearby gas station. There he purchased two
bottles of water and a box of condoms. On their way back to the
ship, he pulled the car into a hotel parking lot.
ENS SW testified at trial by this point it was late in the
evening and she became afraid. Id. at 574. The appellant
pulled out of the hotel parking lot and began slowly driving in
the opposite direction away from the ship. He then reached over
and put his hand on her knee and then proceeded to move his hand
to her crotch and rubbed his fingers over her clothing. She
then pushed his hand away and said, “I can’t.” Id. at 583. She
then asked him “if he had ever done anything like this before”,
to which the appellant described an earlier affair of his where
“the woman had been the one that was confident [but] he wanted
to be the confident one this time.” Id. at 584. Following this
remark, the appellant said, “[y]ou always give a girl a second
chance to say no.” Id. He then reached over, unbuckled her
belt, placed his hand down her pants and touched her vagina.
ENS SW testified that when he did this at first she “froze”
not knowing what to do, and then pulled his hand away again and
said, “I’m sorry. I can’t do this.” Id. at 584-85. The
appellant said nothing in response at first. Then he asked
“what [her] dilemma was” to which she responded “your wife.”
Id. at 593.
The appellant then continued driving in a direction away
from the ship before pulling off the road and parking in a
nearby wooded area. Next, he reached over and pulled her knees
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apart saying that “[he] need[ed] to be able to spread [her] legs
wide because he’s a big guy” and then he placed his hand down
her pants again touching her vagina. Id. at 604. He then
pulled up her shirt and started kissing her breasts. As he
started kissing her face, she briefly kissed him back. She
explained at trial that she didn’t know what to do at this point
and she didn’t know why she briefly kissed him. However, she
then pretended to be asleep in an effort to get him to stop.
Id. at 604-05. The appellant then stopped his advances and
proceeded to drive back to the ship.
Legal and Factual Sufficiency
In his second assignment of error, the appellant asserts
that the guilty finding for wrongful sexual contact is both
legally and factually insufficient.
We review questions of legal and factual sufficiency de
novo. United States v. Winckelmann, 70 M.J. 403, 406 (C.A.A.F.
2011). We review the legal sufficiency of the evidence by
determining “whether, considering the evidence in the light most
favorable to the prosecution, any reasonable fact-finder could
have found all the essential elements beyond a reasonable
doubt.” United States v. Day, 66 M.J. 172, 173-74 (C.A.A.F.
2008) (citing United States v. Turner, 25 M.J. 324, 324 (C.M.A.
1987)). The test for factual sufficiency is whether “after
weighing all the evidence in the record of trial, this court is
convinced of the appellant’s guilt beyond a reasonable doubt.”
United States v. Rankin, 63 M.J. 552, 557 (N.M.Ct.Crim.App.
2006) (citations omitted), aff’d, 64 M.J. 348 (C.A.A.F. 2007).
The term “reasonable doubt” does not mean that the evidence
must be free of any conflict. Id. And when weighing the
credibility of a witness, this court, like a fact-finder at
trial, examines whether discrepancies in witness testimony
resulted from an innocent mistake such as a lapse of memory or a
deliberate lie. United States. v. Goode, 54 M.J. 836, 844
(N.M.Crim.Ct.App 2001). Additionally, the members may “believe
one part of a witness’ testimony and disbelieve another.”
United States v. Harris, 8 M.J. 52, 59 (C.M.A. 1979).
The appellant argues that ENS SW’s testimony lacked
credibility because of her inconsistent statements and her
motive to fabricate. Alternatively, he contends that the
Government failed to prove beyond a reasonable doubt that
consent or mistake of fact as to consent did not exist.
Appellant’s Brief of 16 Sep 2013 at 10-15. We disagree.
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We note that at trial the Government offered and the
military judge admitted evidence corroborating many of the
details of ENS SW’s testimony. A ticket stub from the movie
theater, the box of condoms purchased by the appellant and
pictures of the various locations described by ENS SW were
admitted into evidence. An investigating agent from Naval
Criminal Investigative Service testified that surveillance video
from the gas station displayed the appellant purchasing two
bottles of water and a box of condoms. Record at 775-82.
Even so, the appellant argues that instances of hesitancy
described by ENS SW in her testimony rendered her account of
unwanted and unwelcome sexual contact “unfeasible”. Appellant’s
Brief at 12. Furthermore, he argues that even at face value her
testimony failed to demonstrate her unwillingness to engage in
sexual contact sufficient to disprove a reasonable mistake of
fact. Id. at 13-14.
ENS SW described multiple instances of uninvited and
unwelcome sexual contact. Twice she described how she pulled
the appellant’s hand away from her body saying to him “I can’t.”
Record at 583-85. Even faced with her unwillingness after the
first instance, the appellant continued his aggressive and
unwelcome advances commenting, “[y]ou always give a girl a
second chance to say no.” Id. at 584. Despite the appellant’s
assertions, we conclude that a reasonable fact finder could have
found all elements of the offense beyond a reasonable doubt.
Furthermore, we ourselves are convinced of the appellant’s guilt
beyond a reasonable doubt.
Mil. R. Evid. 404(b)
At trial, the Government offered under MIL. R. EVID. 404(b)
the testimony of LT HB, a female junior officer from OAKLEY
HILL, and ENS SW’s roommate. LT HB testified that several
months earlier the appellant made sexually suggestive comments
suggesting that he wanted to pursue a sexual relationship with
her that she described as “creepy” and making her
“uncomfortable”. Id. at 534-38.
We review a military judge’s evidentiary rulings for an
abuse of discretion. United States v. Thompson, 63 M.J. 228,
230 (C.A.A.F. 2006). When a military judge balances the
competing interests in admitting or excluding evidence, we will
give great deference to a clearly articulated basis for the
decision. United States v. Manns, 54 M.J. 164, 166 (C.A.A.F.
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2000). Conversely, when there is no such clearly articulated
basis, we will be less deferential in our review.
The three-part test for admitting evidence under MIL. R.
EVID. 404(b) is set forth in United States v. Reynolds, 29 M.J.
105, 109 (C.M.A. 1989). First, the evidence must reasonably
support a finding that the appellant committed prior crimes,
wrongs or acts. Second, the evidence must show a fact of
consequence is made more or less probable by the existence of
this evidence. Third, the probative value of the evidence must
not be substantially outweighed by the danger of unfair
prejudice. Id.; see also United States v. Barnett, 63 M.J. 388,
394 (C.A.A.F. 2006).
In her ruling, the military judge found that the
appellant’s sexually suggestive comments toward LT HB occurring
approximately four months before the charged offenses were
relevant “to establish the [appellant’s] state of mind, intent,
modus operandi, and/or motive”, and demonstrated his
“willingness to engage in inappropriate conduct with female
wardroom members and his desire for a relationship with someone
other than his wife to gratify his sexual desires.” Appellate
Exhibit XXXVII at 4-5. Further, the military judge concluded
that the evidence’s probative value was not substantially
outweighed by the danger of unfair prejudice particularly when
coupled with an appropriate limiting instruction. Id.2
The appellant argues that the military judge erred in
applying the second Reynolds prong because, unlike ENS SM, LT HB
was a peer of the appellant’s,3 and “just because a man is
romantically interested in one female does not mean he would
sexually assault another.” Appellant’s Brief at 20. Further,
he argues that such evidence had no logical bearing on consent
or mistake of fact as to consent. Id. at 19-20.
At trial, the main thrust of the defense case was that ENS
SW either was lying in that the sexual contact did not occur, or
that any contact was consensual or the result of an honest and
reasonable mistake. We conclude, as did the military judge,
that evidence of the appellant’s willingness and desire to make
unwelcome and sexually suggestive overtures toward another
female officer in the wardroom close in proximity to the charged
2
The military judge provided a limiting instruction following LT HB’s
testimony and again during instructions on findings. Record at 557; 847-48.
3
The encounters described by LT HB occurred prior to the appellant’s spot
promotion to lieutenant commander.
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offenses was probative of his intent and desire to engage in
sexual conduct with ENS SW. First, his comments toward LT HB
bore the same sexually suggestive overtones as his comments
toward ENS SW. Second, in both instances the appellant alluded
to sexual dissatisfaction in his marriage and, by implication, a
desire to pursue a sexual relationship outside his marriage.
Finally, we note the detailed limiting instruction provided by
the military judge to the panel on the appropriate use of this
evidence. Consequently, we conclude that the military judge did
not err in admitting this evidence.
Unreasonable Post-Trial Delay
In his fourth assignment of error, the appellant argues
that he was prejudiced by unreasonable post-trial processing
delay in that the CA did not take action until 178 days after
trial, exceeding the 120-day rebuttable presumption established
by United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006).
Appellant’s Brief at 28. Although the appellant does not cite
any prejudice resulting from this 58-day delay, he argues that
we should grant sentence relief under our Article 66(c)
statutory charter. We review his claim de novo. Moreno, 63
M.J. at 135.
In reviewing due process claims over speedy post-trial
review, we evaluate the “(1) length of the delay; (2) the
reasons for the delay; (3) the appellant’s assertion of the
right to timely review and appeal; and (4) prejudice.” Id.
(citations omitted). No one factor is determinative and we
decide whether each factor favors the Government or the
appellant. Id. at 136. The presumption of unreasonableness can
be overcome by a showing of legitimate, case specific
circumstances. Id. at 143; see also United States v. Arriaga,
70 M.J. 51, 56-57 (C.A.A.F 2011).
Here, the appellant correctly notes that the length of the
delay, 178 days, triggers a due process inquiry under Barker v.
Wingo, 407 U.S. 514, 530 (1972). Moreno, 63 M.J. at 136. We
next turn our attention to the reasons for the delay.
Other than two periods of delay explained below, the
remainder of the post-trial processing is unremarkable. It
appears that the record of trial initially took approximately 67
days to prepare and forward to the military judge for review.
The military judge then returned the record for correction
approximately 49 days later. See Commander, Navy Region Mid-
Atlantic ltr 5800 00L/790 of 8 Jul 13. The CA cites the
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unavailability of the military judge to authenticate the record
of trial due to a crowded docket. See id. An additional 36
days lapsed before the corrected record was returned to the
military judge for authentication. Id. While the delay in
preparing the record and the military judge’s unavailability are
not model excuses for delay, we do not find these periods either
collectively or individually to be facially unreasonable within
the meaning of Moreno considering the size of the record and the
numerous sealed portions of the transcript and exhibits.
Therefore, this factor weighs only slightly in favor of the
appellant.
Next, we examine whether the appellant objected to the
delay or otherwise asserted his right to timely review.
Arriaga, 70 M.J. at 57. We find that he did not. However,
because the obligation to ensure a timely post-trial process
ultimately rests with the Government, this factor only slightly
weighs against the appellant. See id.
On the fourth factor, prejudice, we balance three
interests: (1) prevention of oppressive incarceration; (2)
minimization of anxiety and concern of those awaiting the
outcome of their appeals; and, (3) limitation of the possibility
that a convicted person’s grounds for appeal, and his defense --
in the event of reversal and retrial -- might be impaired by the
delay. Moreno, 63 M.J. at 138-41. In reviewing these factors,
we conclude that the appellant has failed to meet his burden of
establishing prejudice. We next consider whether this is an
appropriate case to exercise our authority to grant relief under
Article 66(c). Toohey v. United States, 60 M.J. 100, 101-02
(C.A.A.F. 2004). Having done so, we find the post-trial
processing delay does not affect the findings or the sentence
that should be approved in this case. Accordingly, we decline
to grant relief.
Conclusion
The findings and the sentence as approved by the CA are
affirmed.
For the Court
R.H. TROIDL
Clerk of Court
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