United States v. Hodge ( 2015 )

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
J.A. FISCHER, K.M. MCDONALD, S.A. DOMINGUEZ
Appellate Military Judges
UNITED STATES OF AMERICA
v.
DIANTE R. HODGE
OPERATIONS SPECIALIST FIRST CLASS (E-6), U.S. NAVY
NMCCA 201400306
SPECIAL COURT-MARTIAL
Sentence Adjudged: 16 April 2014.
Military Judge: CDR John A. Maksym, JAGC, USN.
Convening Authority: Commanding Officer, Center for Surface
Combat Systems, Dahlgren, VA.
Staff Judge Advocate's Recommendation: LT P.E. Breuder,
JAGC, USN.
For Appellant: LCDR Dillon Ambrose, JAGC, USN.
For Appellee: LCDR Keith Lofland, JAGC, USN.
22 January 2015
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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:
A military judge sitting as a special court-martial
convicted the appellant, pursuant to his pleas, of one
specification of assault consummated by a battery upon a child
under 16 years of age, and one specification of child
endangerment through culpable neglect, in violation of
Articles 128 and 134, Uniform Code of Military Justice, 10
U.S.C. §§ 928 and 934. The appellant was sentenced to
confinement for 12 months, reduction to pay grade E-1, and a
bad-conduct discharge. The convening authority approved the
sentence as adjudged and, except for the bad-conduct discharge,
ordered it executed.
The appellant's sole assignment of error is that a bad­
conduct discharge is inappropriately severe given his personal
character, military record, and tremendous remorse for his
offenses.1 We disagree. After careful consideration of the
record of trial and the parties' pleadings, we conclude that
the findings and sentence are correct in law and fact and that
no error was committed that was materially prejudicial to the
substantial rights of the appellant. Arts. 59(a) and 66(c),
UCMJ.
Background
On 6 September 2013, the appellant left his fourteen-
Year- old stepdaughter (TA) to care for her sibling, his four-
year- old daughter, while he went out for the evening. When the
appellant returned home he discovered TA and a female friend,
DK, in TA’s room in a sexually compromising circumstance. The
appellant lost his temper and, in the presence of DK, h e
struck TA with a metal studded belt approximately 10 times,
hitting her on her arms, shoulders, and back. The appellant
used such force that it caused some of the metal studs on the
belt to dislodge and the strikes also caused several visible
marks on TA's body.
After DK left the house, the appellant demanded an
explanation from TA as to what had occurred between the two
of them. TA eventually explained the details of several
sexual acts that DK performed on her. The appellant then
demanded that TA, while naked, show him what DK did to her.
The appellant told TA to come closer to him and asked if he
could “get some.” The appellant later climbed onto the bed
with TA and said if DK “got some” then he should be able to
“get some.” When TA said no and turned away, the appellant
repeatedly tried to spread her legs apart with his hands
while she was lying naked in her bed.
The appellant acknowledged that his actions adversely
affected the mental health of his fourteen- year-old
1
This assignment of error was raised pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982).
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stepdaughter. This entire episode occurred while the
appellant's wife, a fellow Sailor, was underway.
Sentence Appropriateness
The appellant avers that a bad-conduct discharge is
inappropriately severe under the circumstances of this
case. The appellant contends that the quality and
character of his military service, his love for his
family, and genuine remorse militate against a bad-conduct
discharge. We disagree.
Under Article 66(c), UCMJ, we independently review
sentences within our purview and only approve that part of a
sentence which we find should be approved. “Sentence
appropriateness involves the judicial function of assuring
that justice is done and that the accused gets the punishment
he deserves.” United States v. Healy, 26 M.J. 394, 395
(C.M.A. 1988). This requires “‘individualized consideration’
of the particular accused ‘on the basis of the nature and
seriousness of the offense and 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)).
Upon review of the entire record in this case, including
the appellant's military character, we find that a bad-
conduct discharger in addition to the punishment otherwise
imposed, was appropriate for this offender and his misconduct.
Given this finding, any consideration of appellant's requested
relief would amount to an act of clemency which is left to
the “command prerogative” of the convening authority. Healy,
26 M.J. at 396.
Conclusion
The findings and sentence as approved by the convening
authority are affirmed.
For the Court
R.H. TROIDL
Clerk of Court
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