United States v. Parsons ( 2015 )

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
K.J. BRUBAKER, M.C. HOLIFIELD, A.Y. MARKS
Appellate Military Judges
UNITED STATES OF AMERICA
v.
ERIC J. PARSONS
GUNNERY SERGEANT (E-7), U.S. MARINE CORPS
NMCCA 201400435
GENERAL COURT-MARTIAL
Sentence Adjudged: 30 July 2014.
Military Judge: LtCol D.M. Jones, USMC.
Convening Authority: Commanding General, Training
Command, Quantico, VA.
Staff Judge Advocate's Recommendation: LtCol M.E. Sayegh,
USMC.
For Appellant: LT Ryan W. Aikin, JAGC, USN.
For Appellee: CAPT Diane L. Karr, JAGC, USN; LCDR Keith B.
Lofland, JAGC, USN.
30 June 2015
---------------------------------------------------
OPINION OF THE COURT
---------------------------------------------------
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:
A military judge sitting as a general court-martial
convicted the appellant, pursuant to his pleas, of three
specifications of possessing child pornography and one
specification each of violating a lawful general order (sexual
harassment), adultery, and obstructing justice, in violation of
Articles 92 and 134, Uniform Code of Military Justice, 10 U.S.C.
§§ 892 and 934. The military judge sentenced the appellant to
confinement for eight years, reduction to pay grade E-1, and a
dishonorable discharge. The convening authority (CA) approved
the sentence as adjudged and ordered it executed. 1
In his sole assignment of error, the appellant asserts that
his sentence is inappropriately severe. We disagree.
After carefully considering the record of trial and the
submissions of the parties, we conclude the findings and
sentence are correct in law and fact and that there was no error
materially prejudicial to the substantial rights of the
appellant. Arts. 59(a) and 66(c), UCMJ.
Background
During an investigation into allegations of child sexual
abuse, 2 members of the Naval Criminal Investigative Service
(NCIS) seized several computers, hard drives and memory cards
from the appellant’s residence. Forensic analysis of these
items revealed more than 300 images of child pornography. The
analysis also uncovered the extensive steps the appellant took
to conceal his searches for and possession of those images,
including the research and use of anonymous “dark net” web
sites.
Despite being under investigation, the appellant engaged in
a continuing course of other misconduct. After his wife and
children moved away, purportedly to avoid interference by child
protective services, the appellant began to date another woman.
For nearly a year the appellant pursued a relationship with this
woman, falsely telling her he was engaged in divorce proceedings
with his wife. Based on these statements, the woman and her
six-year-old daughter moved into the appellant’s apartment. All
the while, however, the appellant maintained an apparently happy
long-distance relationship with his wife. When the appellant’s
wife learned of the adulterous relationship, she informed both
the appellant and NCIS. The appellant then advised his mistress
1
The pretrial agreement had no effect on the sentence. To the extent the
CA’s action purports to execute the dishonorable discharge, it is a legal
nullity. United States v. Bailey, 68 M.J. 409 (C.A.A.F. 2009).
2
The appellant pleaded not guilty to numerous charges and specifications of
making false official statements, rape of a child, aggravated sexual contact
with a child, and assault consummated by a battery upon a child, as well as
additional specifications of violating a lawful general order (sexual
harassment) and obstructing justice. Pursuant to a pretrial agreement, the
Government subsequently withdrew and dismissed these charges and
specifications.
2
to ignore the NCIS agents’ attempts to contact her, and to deny
any sexual relationship if questioned.
During approximately the same period, the appellant also
engaged in protracted sexual harassment of a fellow, albeit
junior, instructor. On numerous occasions he made crass,
inappropriate sexual comments to her, usually in the presence of
other instructors or students. The comments were a near daily
occurrence, despite her confronting the appellant and asking him
to stop.
Other facts necessary to address the assigned error will be
provided below.
Sentence Appropriateness
This court reviews sentence appropriateness de novo. United
States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). Sentence
appropriateness involves the judicial function of assuring that
justice is done and that the appellant gets the punishment he
deserves. United States v. Healy, 26 M.J. 394, 395 (C.M.A.
1988). As part of that review, we give “‘individualized
consideration’ of the particular appellant ‘on the basis of the
nature and seriousness of the offense and the character of the
offender.’” United States v. Snelling, 14 M.J. 267, 268 (C.M.A.
1982) (quoting United States v. Mamaluy, 27 C.M.R. 176, 180-81
(C.M.A. 1959)).
Here, the appellant was convicted of possessing hundreds of
still and video images of children engaged in sexual activity,
including at least one lengthy video depicting a young girl in
bondage while she is sexually assaulted by an adult male. Many
of the other images in the record contained similarly disturbing
material, such as bestiality and incest. The evidence indicates
the appellant went to great lengths to both acquire child
pornography and then hide his possession of it.
The pre-sentencing hearing mainly consisted of a contest
between dueling experts on the issue of rehabilitation. While
capably presented, the conflicting evidence did little to
conclusively resolve the issue. One fact, however, remains
undisputed: Despite knowing he was under investigation for
extremely serious allegations of child sexual abuse, the
appellant embarked on an extensive course of misconduct,
including an adulterous affair. We find this, along with his
long-term, pervasive sexual harassment of a subordinate and
extensive effort to collect child pornography, to tell us more
3
about the appellant’s rehabilitative potential than his 13-year-
record of service.
Thus, while the appellant may otherwise have been a decent
Marine with a previously clean disciplinary record and three
deployments, we have no difficulty in concluding that, based on
the entire record before us, justice was served and the
appellant received the punishment he deserved.
Conclusion
The findings and the sentence as approved by the CA are
affirmed.
For the Court
R.H. TROIDL
Clerk of Court
4