United States v. Ezel ( 2015 )

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
J.A. FISCHER, K.M. MCDONALD, D.C. KING
Appellate Military Judges
UNITED STATES OF AMERICA
v.
PATRICK J. EZEL
STAFF SERGEANT (E-6), U.S. MARINE CORPS
NMCCA 201400093
GENERAL COURT-MARTIAL
Sentence Adjudged: 4 October 2013.
Military Judge: Col Deborah McConnell, USMC.
Convening Authority: Commanding General, 2d Marine
Division, Camp Lejeune, NC.
Staff Judge Advocate's Recommendation: Maj J.N. Nelson,
USMC.
For Appellant: Capt Jason Wareham, USMC.
For Appellee: LCDR Keith Lofland, JAGC, USN; LT Ian D.
MacLean, JAGC, USN.
22 January 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 general court-martial consisting of officer and enlisted
members convicted the appellant, contrary to his pleas, of
violating a lawful general order by wrongfully providing alcohol
to a minor and indecent conduct 1 in violation of Articles 92 and
120, Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 920.
The members sentenced the appellant to reduction to pay grade E-
1 and a bad-conduct discharge. The convening authority approved
the sentence as adjudged.
The appellant raises four assignments of error (AOE): (1)
his sentence is inappropriately severe, (2) the prosecutor
argued improper aggravation evidence in sentencing, (3) the
military judge committed plain error by allowing improper
evidence in aggravation in sentencing, and (4) his conviction
for indecent liberties with a child is legally and factually
insufficient. 2
After careful consideration of the record of trial, the
parties’ pleadings, and the appellant’s assignments of error, we
conclude 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
On the evening of 10 September 2011, the appellant provided
his 15-year-old stepson, MP, with several alcoholic beverages.
The appellant then pulled up adult pornography on his laptop
computer and had MP watch the pornography with him for
approximately fifteen minutes. The appellant’s statement to
Naval Criminal Investigative Service alleged that MP asked to
try the appellant’s alcoholic beverage before the appellant gave
him alcohol. The appellant also contended that MP had been
asking him questions about oral sex and that the appellant’s
decision to show MP pornography was an attempt to provide him a
visual representation of oral sex “so he could have a better
understanding of how [oral sex] worked.” 3
However, MP alleged that the pornography was followed by
the appellant performing fellatio on him, that the appellant
1
In that the appellant did, at or near MCAS New River, North Carolina, on or
about 10 September, 2011, engage in indecent conduct in the physical presence
of MP, a male under 16 years of age, by showing pornography with the intent
to arouse the sexual desire of the said MP.
2
AOE IV is a summary AOE and is raised pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982). We have considered AOE IV and find no
error. United States v. Clifton, 35 M.J. 79, 81 (C.M.A. 1992).
3
Prosecution Exhibit 3 at 2.
2
exposed his penis to MP, and that the appellant required MP to
masturbate the appellant. The members acquitted the appellant
of these charges. Additional facts necessary for the resolution
of particular assignments of error are included below.
Evidence in Aggravation
During the sentencing hearing, and without objection, MP’s
mother (DE) described the impact the appellant’s misconduct had
on MP. The appellant now asserts that the military judge
committed plain error by failing to limit DE’s testimony to only
those consequences arising from the convicted offenses.
Allegations of the admission of improper aggravation
evidence not raised at trial are waived unless they rise to the
level of plain error. United States v. Bungert, 62 M.J. 346,
347 (C.A.A.F. 2006). The plain error standard requires: “(1) an
error was committed; (2) the error was plain, or clear, or
obvious; and (3) the error resulted in material prejudice to
substantial rights.” United States v. Hardison, 64 M.J. 279,
281 (C.A.A.F. 2007) (citation omitted). The appellant bears the
burden of demonstrating the three prongs of the test are met.
Id.
During the Government’s sentencing case, DE responded to
questions from the Trial Counsel about MP’s “incident with his
dad,” by testifying that MP became “mean,” “very withdrawn” and
needed “trauma therapy” for 24 weeks. 4 The defense lodged no
objections to the trial counsel’s questions or DE’s responses.
During cross-examination, the defense established that MP was
“quiet” and attended therapy even before the date of the
misconduct. 5
RULE FOR COURTS-MARTIAL 1001(b)(4), MANUAL FOR COURTS-MARTIAL, UNITED
STATES (22012 ed.) provides that: “[t]he trial counsel may present
evidence as to any aggravating circumstances directly relating
to or resulting from the offenses of which the accused has been
found guilty. Evidence in aggravation includes, but is not
limited to, evidence of financial, social, psychological, and
medical impact on or cost to any person . . . who was the victim
of an offense committed by the accused[.]” MP was the victim of
the appellant’s indecent act and testimony regarding the impact
of psychological changes in MP after the appellant’s misconduct
was proper evidence in aggravation at sentencing. We are not
4
Record at 831-832.
5
Id. at 835.
3
convinced that use of the phrases “the incident” or “trauma
therapy” constituted error, let alone plain error.
The appellant also contends that the probative value of
DE’s testimony was substantially outweighed by the danger of
unfair prejudice and so violated MILITARY RULE OF EVIDENCE 403, MANUAL
FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). We disagree. DE’s
testimony was straightforward, probative evidence of the
psychological impact the appellant’s misconduct had on MP. The
danger of which the appellant is concerned comes in the form of
the evidence “inappropriately [misleading] the members” 6 into
sentencing the appellant for the misconduct of which the
member’s acquitted him. However, we find this possibility
remote, especially in light of the fact that the members heard
all of the evidence, acquitted the appellant of some of the
offenses, and were then properly instructed by the military
judge that “the accused is to be sentenced only for the offenses
of which he has been found guilty.” 7 Consequently, we find the
appellant has failed to establish plain error.
Improper Argument
Similarly, the appellant argues that trial counsel
improperly argued that the members should sentence the appellant
for the offenses for which he was acquitted. Improper argument
is a question of law that we review de novo. United States v.
Marsh, 70 M.J. 101, 104 (C.A.A.F. 2011). Since the defense
counsel did not object to trial counsel’s sentencing argument,
we review this claim for plain error as well. United States v.
Erickson, 65 M.J. 221, 223 (C.A.A.F. 2007). Having considered
the record of trial and the appellant’s brief, we find none.
The appellant submits that the trial counsel’s repetitive
use of the phrase “facts that you’ve heard over the last couple
of days” was an improper reference to the misconduct of which
the appellant was acquitted. However, when read in context, we
disagree with the appellant that the trial counsel’s use of this
phrase rises to the level of plain error. 8
6
Appellant’s Brief of 4 Aug 2014 at 13.
7
Record at 849.
8
The trial counsel’s sentencing argument included the following: “The accused
in his unsworn statement just asked you to consider his statement that this
is the worst day of his life. Let’s think about MP on the worst day of his
life, 10 September 2011. Gentlemen, we’ve heard lots of facts come out. I
ask you to retrace back to what you’ve heard from yesterday and the day
before. What you heard the accused did to his son. What you convicted him
4
Sentence Appropriateness
Finally, the appellant argues that his sentence is
inappropriately severe. “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)).
First, we note that the appellant’s awarded sentence of
reduction to E-1 and a bad-conduct discharge was significantly
less than the maximum he faced, which was confinement for seven
years, forfeiture of all pay and allowances, reduction to pay
grade E-1, and a dishonorable discharge. In addition, the
appellant abused his position of trust by providing his son with
alcohol to the point of intoxication and showing his son
pornography with the intent to arouse his son’s sexual desire.
After the appellant’s misconduct, MP changed from being “happy”
to “quiet and withdrawn,” and “[h]e didn’t want to be a part of
life anymore.” 9 Under these circumstances, we find this sentence
is appropriate for this offender and his offenses. United
States v. Baier, 60 M.J. 382, 384-85 (C.A.A.F. 2005); Healy, 26
M.J. at 395-96; Snelling, 14 M.J. at 268. Relief at this
juncture would be an act of clemency, a wholly separate function
allocated by Congress to the convening authority. Healy, 26
M.J. at 395-96.
Conclusion
The findings and the sentence as approved by the convening
authority are affirmed.
For the Court
R.H. TROIDL
Clerk of Court
of, providing alcohol, getting him liquored up, and showing him pornography.
Those actions, Gentlemen, for the facts that you’ve heard for the past couple
days, the government respectfully requests that you award him a dishonorable
discharge, 18 months confinement, and reduction to E-1.” Id. at 841.
9
Id. at 829, 831.
5