United States v. Nichol ( 2022 )

This opinion is subject to administrative correction before final disposition.
Before
GASTON, HOUTZ, and MYERS
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Dashawn Q. NICHOL
Aviation Ordnanceman Third Class (E-4), U.S. Navy
Appellant
No. 201800286R
_________________________
Decided: 28 July 2022
Appeal from the United States Navy-Marine Corps Trial Judiciary
upon further review
Military Judges:
Robert P. Monahan (arraignment)
Michael D. Libretto (motions)
Derek D. Butler (motions and trial)
Donald R. Ostrom (sentence rehearing)
Sentence adjudged upon remand on 2 October 2020 by a general court-
martial convened at Naval Station Norfolk, Virginia, consisting of a mil-
itary judge sitting alone. Sentence approved by the convening authority
United States v. Nichol, NMCCA No. 201800286R
Opinion of the Court
after sentence rehearing: reduction to E-1, confinement for 17 years, 1
and a dishonorable discharge.
For Appellant:
Captain Jasper W. Casey, USMC
For Appellee:
Lieutenant Catherine M. Crochetiere, JAGC, USN
Lieutenant John L. Flynn IV, JAGC, USN
Major Kerry E. Friedewald, USMC
_________________________
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under
NMCCA Rule of Appellate Procedure 30.2.
_________________________
PER CURIAM:
Appellant was convicted by officer and enlisted members, contrary to his
pleas, of two specifications of rape and two specifications of sexual assault, in
violation of Article 120, Uniform Code of Military Justice [UCMJ]. 2 After the
military judge conditionally dismissed one of the sexual assault convictions,
Appellant was sentenced to reduction to E-1, confinement for 25 years, forfei-
ture of all pay and allowances, and a dishonorable discharge. In Appellant’s
first appeal, this Court approved the findings, set aside the sentence due to
prosecutorial misconduct, and remanded for a sentence rehearing. 3
Appellant was subsequently resentenced by a military judge to reduction
to E-1, confinement for 17 years, and a dishonorable discharge. Pursuant to a
post-trial sentencing agreement signed prior to Appellant’s sentence rehear-
ing, the convening authority approved the adjudged sentence but suspended
confinement in excess of 15 years.
1 The convening authority suspended confinement in excess of 15 years pursuant
to a post-trial presentencing agreement.
2 10 U.S.C. § 920.
3 United States v. Nichol, No. 201800286, 2020 CCA LEXIS 178 (N-M. Ct. Crim.
App. May 28, 2020) (unpublished).
2
United States v. Nichol, NMCCA No. 201800286R
Opinion of the Court
Appellant now asserts six assignments of error [AOEs] in his second appeal
before this Court: (1) this Court erred when it determined that the Government
presented legal and factually sufficient evidence for Specification 1 of the
Charge (rape of Aviation Ordnanceman Airman [AOAN] Bravo 4); (2) this Court
erred when it determined that the Government presented legal and factually
sufficient evidence for Specification 1 of the Additional Charge (rape of Ms.
Romeo); (3) this Court erred when it determined that prosecutorial misconduct
was not so prejudicial as to warrant setting aside the findings; (4) this Court
erred when it failed to apply the proper standard in reviewing whether the
military judge abused his discretion when he admitted alleged prior consistent
statements of AOAN Bravo and Ms. Romeo; (5) the sentence awarded by the
military judge is inappropriately severe; and (6) this Court should reconsider
the fourth, fifth, sixth, and seventh AOEs in Appellant’s initial brief of 9 April
2019. 5 We find no prejudicial error and affirm.
I. BACKGROUND
As we discussed in our previous opinion, Appellant was convicted of raping
AOAN Bravo, raping Ms. Romeo, and sexually assaulting Aviation Machinist’s
Mate Third Class [AD3] Baker. In May 2015, after going to an amusement park
with AOAN Bravo, with whom he worked, Appellant brought her back to his
apartment, where she became tired and wanted to go to sleep. After she ac-
cepted his offer to let her sleep in his bed, Appellant later entered the room,
ripped the covers off of her, grabbed the phone from her hand as she was trying
to call for help, pulled her shorts off, pried her legs open, and had sexual inter-
course with her.
Appellant also worked with AD3 Baker, a friend of AOAN Bravo. In June
2015, he saw AD3 Baker at a party at another Sailor’s home. He told her he
had something to tell her and led her to a secluded area behind a stairwell
away from others at the party. He then kissed her as she pushed him away
and said, “No.” He then grabbed and held her, put his hand down her pants,
and inserted his fingers into her vagina several times.
4All names in this opinion, other than those of Appellee, the judges, and counsel,
are pseudonyms.
5 Appellant’s fourth, fifth, and sixth AOEs are raised pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982). We note that Appellant’s first through fourth
and sixth AOEs were already decided by this Court in our previous opinion. We apply
the law-of-the-case doctrine and will not revisit these issues. See United States v. Par-
ker, 62 M.J. 459, 464 (C.A.A.F. 2006); United States v. Matias, 25 M.J. 356, 361 (C.M.A.
1987).
3
United States v. Nichol, NMCCA No. 201800286R
Opinion of the Court
Appellant knew Ms. Romeo, a 38-year-old civilian mother of four, from a
chemistry class at a local community college. They became friends and occa-
sionally socialized outside of class. In June 2017, Appellant and Ms. Romeo
made plans to meet at his apartment and have drinks together. While they
were having drinks, he showed her a video of his friends under the influence
of Xanax. He then showed her a Xanax pill that he had taken from his friends.
After Ms. Romeo poured herself a vodka and pineapple juice and went to the
bathroom, she started feeling weird. After her second trip to the bathroom,
Appellant pushed her into his bedroom, which she resisted and was able to
return to the living room. The next thing she remembered was waking up the
following morning nude on Appellant’s living room couch. When she subse-
quently accused him of drugging her, he denied it and initially denied anything
had happened between them. He later told her they had had sex.
II. DISCUSSION
Appellant asserts his sentence is inappropriately severe. We review sen-
tence appropriateness de novo. 6 “Sentence appropriateness involves the judi-
cial function of assuring that justice is done and that the accused gets the pun-
ishment he deserves.” 7 This requires an “individualized consideration of the
particular accused on the basis of the nature and seriousness of the offense and
the character of the offender.” 8 We have significant discretion in determining
sentence appropriateness, but may not engage in acts of clemency. 9
In light of the serious and repeated nature of Appellant’s misconduct, we
find his sentence of 17 years’ confinement (two of which were suspended), re-
duction to E-1, and a dishonorable discharge is just and that Appellant re-
ceived the punishment he deserves. Appellant raped two women and sexually
assaulted a third over the course of 25 months. His actions had a dramatic
effect on the lives of his victims, who as a result of the assaults suffered dete-
riorated mental health, feelings of anxiety and isolation from family and
friends, and recurring thoughts of self-harm.
6 United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006).
7 United States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988).
8 United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (citation and internal
quotation marks omitted).
9 United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
4
United States v. Nichol, NMCCA No. 201800286R
Opinion of the Court
Appellant’s sentence was also the predictable result of a post-trial sentenc-
ing agreement that he negotiated and voluntarily entered into with the con-
vening authority prior to his sentence rehearing. The agreement provided that
any punishment could be approved as adjudged and that any adjudged con-
finement in excess of 15 years would be suspended. The convening authority
took action in conformity with this agreement. As we have previously stated,
“we generally refrain from second guessing or comparing a sentence that flows
from a lawful pretrial agreement . . . .” 10
After reviewing the record as a whole, we find that the sentence is correct
in law, appropriately reflects the matters in aggravation, extenuation, and mit-
igation presented, gives individualized consideration to Appellant and his
crimes, and should be approved.
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel, we
have determined that the findings and sentence are correct in law and fact and
that no error materially prejudicial to Appellant’s substantial rights oc-
curred. 11
The findings and sentence are AFFIRMED.
FOR THE COURT:
S. TAYLOR JOHNSTON
Interim Clerk of Court
10 United States v. Widak, No. 201500309, 2016 CCA LEXIS 172, *7 (N-M. Ct.
Crim. App. Mar. 22, 2016) (unpublished); see also United States v. Casuso, No.
202000114, 2021 CCA LEXIS 328, *8 (N-M. Ct. Crim. App. June 30, 2021) (un-
published) (questioning an appellant’s “claim of inappropriate severity when the sen-
tence he received was within the range of punishment he was expressly willing to ac-
cept in exchange for his pleas of guilty”).
11 Articles 59 & 66, UCMJ.
5