United States v. Flowers ( 2022 )

This opinion is subject to administrative correction before final disposition.
Before
GASTON, HOUTZ, and MYERS
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Jamahl K. FLOWERS
Master-at-Arms Third Class (E-4), U.S. Navy
Appellant
No. 202100030
_________________________
Decided: 1 July 2022
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges:
Kimberly J. Kelly (arraignment)
Lawrence C. Lee (motions and trial)
Sentence adjudged 16 October 2020 by a special court-martial convened
at Naval Base Kitsap, Bremerton, Washington, consisting of officer and
enlisted members. Sentence in the Entry of Judgment: a bad-conduct
discharge.
For Appellant:
William E. Cassara, Esq.
Lieutenant Commander Daniel O. Moore, JAGC, USN
For Appellee:
Lieutenant Megan E. Martino, JAGC, USN
Lieutenant John L. Flynn IV, JAGC, USN
United States v. Flowers, NMCCA No. 202100030
Opinion of the Court
_________________________
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:
A panel of officer and enlisted members convicted Appellant, contrary to
his pleas, of three specifications of abusive sexual contact in violation of Article
120, Uniform Code of Military Justice [UCMJ],1 for which they sentenced him
to a bad-conduct discharge.
Appellant asserts three assignments of error, which we renumber as fol-
lows: (1) Appellant’s company commander committed apparent unlawful com-
mand influence by stating, “there’s a predator in our midst,” in a meeting called
specifically to address recent allegations of sexual assault, and the Govern-
ment failed to prove beyond a reasonable doubt that the unlawful command
influence did not place an intolerable strain upon the public’s perception of the
fairness of the military justice system; (2) the military judge abused his discre-
tion in admitting evidence of the charged acts to prove Appellant’s absence of
mistake and intent to commit the charged acts under Military Rule of Evidence
[Mil. R. Evid.] 404(b); and (3) the sentence of a bad-conduct discharge is inap-
propriately severe. We find no prejudicial error and affirm.
I. BACKGROUND
Appellant was convicted of touching the buttocks of three female subordi-
nates without their consent for his sexual gratification, during times in which
he had supervisory authority over them. In October 2017, while providing
training to Master-at-Arms [MA3] Hotel2 for her sentry qualification, Appel-
lant began asking her which sexual positions she liked and then slapped and
grabbed her buttocks several times, as she told him to stop and threatened to
report him. In February 2019, while serving as static post supervisor of the
controlled-access building where MA3 Madison was standing weekend duty,
Appellant reached over and grabbed her buttocks without her consent, which
1 10 U.S.C. § 920.
2 All names in this opinion, other than those of Appellant, the judges, and counsel,
are pseudonyms.
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Opinion of the Court
she awkwardly shrugged off, telling him they were both married. In November
2019, while conducting an inspection of MA3 Mike’s watchtower around mid-
night, Appellant pushed his body against hers from behind, grabbed her hips
and pushed her down on his lap, where she could feel his erect penis against
her buttocks, and eventually grabbed her buttocks with both hands without
her consent, as she repeatedly told him to leave.
Although Appellant apologized to MA3 Mike and told her to keep the inci-
dent a secret between them, she reported his behavior a few days later to the
Naval Criminal Investigative Service [NCIS]. When interrogated, Appellant
admitted he “overstepped his bounds” and grabbed her buttocks even after she
told him she was uncomfortable, which he knew was wrong.3 After learning
about MA3 Mike’s allegation, MA3 Madison and MA3 Hotel also made reports
within weeks. During a subsequent NCIS interrogation, Appellant admitted
he touched MA3 Madison and MA3 Hotel on the buttocks because he was at-
tracted to them, describing MA3 Hotel’s reaction as “shocked.”4
In the wake of the sexual misconduct reports, Appellant’s company com-
mander, Major Bravo, called a meeting with all the females in the company to
assess the command climate and make sure they felt safe where they worked.
During the meeting, he discussed the “potential that there is a predator in our
midst” and said, “if that’s case, I want them out of the platoon, out of the com-
pany, away from you, so that way we can create a good work environment.”5
While he did not discuss the ongoing investigation or mention Appellant by
name, many in the group were aware he was referring to Appellant, particu-
larly when a friend of Appellant raised her hand after Major Bravo left the
meeting and said, “I feel like nobody should have found out about this investi-
gation other than Flowers, the investigators, and NCIS.”6
3 Pros. Ex. 7.
4 Pros. Ex. 10.
5 R. at 62.
6 Id. at 75.
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Opinion of the Court
II. DISCUSSION
A. Apparent Unlawful Command Influence
We review claims of unlawful command influence de novo.7 The prohibition
against unlawful command influence derives from a statutory mandate:
No person subject to this chapter may attempt to coerce or, by
any unauthorized means, influence the action of a court-martial
or any other military tribunal or any member thereof, in reach-
ing the findings or sentence in any case, or the action of any con-
vening, approving, or reviewing authority with respect to his ju-
dicial acts.8
Our superior court has held that unlawful command influence can be actual or
apparent.9 Actual unlawful command influence occurs “when there is an im-
proper manipulation of the criminal justice process which negatively affects
the fair handling and/or disposition of a case.”10 Apparent unlawful command
influence occurs when the influence of command, while not actually prejudic-
ing an accused, nevertheless places an “intolerable strain on public perception
of the military justice system.”11
Appellant asserts that Major Bravo’s comments during the company meet-
ing constitute apparent unlawful command influence. To succeed in a claim of
apparent unlawful command influence, an appellant bears the burden of pre-
senting “some evidence”—beyond mere allegation or speculation—of unlawful
command influence.12 If the appellant meets this preliminary threshold, the
burden shifts to the government to prove beyond a reasonable doubt that either
the “predicate facts proffered by the appellant do not exist,” or “the facts as
7 United States v. Barry, 78 M.J. 70, 77 (C.A.A.F. 2018).
8 UCMJ art. 37(a). As this Court noted in United States v. Gattis, 81 M.J. 748, 754
(N-M. Ct. Crim. App. 2021), Article 37 was amended in December 2019 to state, “No
finding or sentence of a court-martial may be held incorrect on the ground of a violation
of this section unless the violation materially prejudices the substantial rights of the
accused.” However, because the comments at issue in this case were made prior to the
amendment’s effective date, we apply neither its new material prejudice requirement
nor the Gattis holding regarding same.
9 United States v. Boyce, 76 M.J. 242, 247 (C.A.A.F. 2017).
10 Id. (citations omitted).
11 Id. (quoting United States v. Wiesen, 56 M.J. 172, 175 (C.A.A.F. 2001)).
12 United States v. Bergdahl, 80 M.J. 230, 234 (C.A.A.F. 2020).
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Opinion of the Court
presented do not constitute unlawful command influence.”13 If the government
does not meet this burden, it may then seek to prove beyond a reasonable doubt
that the unlawful influence did not place an intolerable strain upon the public’s
perception of the military justice system and that “an objective, disinterested
observer, fully informed of all the facts and circumstances, would [not] harbor
a significant doubt about the fairness of the proceeding.”14
Here, the military judge found that Major Bravo’s comments during the
company meeting did not place an intolerable strain on the public perception
of the military justice system. We agree. While it is certainly a commander’s
prerogative to conduct climate checks and safety surveys in the wake of sexual
misconduct allegations, particularly those occurring in the work environment,
the use of pejorative terms like “predator” is both ill-advised and strongly dis-
couraged, as it could be viewed as pre-judging an accused whom the law pre-
sumes to be innocent until proven guilty. Even where the subject of the allega-
tions is not referred to by name, it is far too probable that the circulation of
rumors will make the accused’s name known for commanders to use language
that might reasonably be perceived as publicly condemning an accused while
he or she is pending investigation or trial for an alleged offense.
In this case, however, we find that an objective observer, fully informed of
all the facts and circumstances, would not harbor significant doubt about the
fairness of Appellant’s court-martial. The meeting at which Major Bravo used
the term “predator” took place six months before charges were preferred and
11 months before the trial. Major Bravo did not participate in the preferral or
referral of charges. Nor is there any evidence that his comments influenced
anyone with respect to their participation in the court-martial process or had
a chilling effect on any potential witnesses. Under these circumstances, we find
the Government has shown beyond a reasonable doubt that Major Bravo’s com-
ments during the meeting did not place an intolerable strain upon the public’s
perception of the military justice system.
B. Admission of evidence under Mil. R. Evid. 404(b)
Appellant asserts the military judge abused his discretion in instructing
that the evidence for one charged offense could be considered for certain pur-
poses under Mil. R. Evid. 404(b), which he argues allowed the evidence to be
13 Id. (quoting Boyce, 76 M.J. at 249).
14Boyce, 76 M.J. at 249 (quoting United States v. Salyer, 72 M.J. 415, 423 (C.A.A.F.
2013)).
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Opinion of the Court
improperly used as propensity evidence. We review a military judge’s eviden-
tiary rulings under Mil. R. Evid 404(b) for an abuse of discretion.15 “To find an
abuse of discretion requires more than a mere difference of opinion—the chal-
lenged ruling must be arbitrary, fanciful, clearly unreasonable, or clearly erro-
neous.”16
“Evidence of a crime, wrong, or other act is not admissible to prove a per-
son’s character in order to show that on a particular occasion the person acted
in accordance with the character.”17 Such evidence may, however, be admitted
for other purposes, such as to prove “motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident.”18 While our
superior court has held that evidence of charged offenses cannot be used as
propensity evidence for other charged offenses, this rule does not apply to the
non-propensity use of evidence of charged offenses to prove such things as in-
tent or absence of mistake under Mil. R. Evid. 404(b).19 Rather, Mil. R. Evid.
404(b) “is a rule of inclusion” that “permits admission of relevant evidence of
other crimes or acts unless the evidence tends to prove only criminal disposi-
tion.”20
Evidence offered under Mil. R. Evid. 404(b) must nevertheless satisfy the
three-prong test announced in United States v. Reynolds: (1) the evidence must
reasonably support a finding that the accused committed the other acts; (2) a
fact of consequence—other than the accused’s character or propensity for mis-
conduct—must be made more or less probable by the evidence; and (3) the pro-
bative value of the evidence must not be substantially outweighed by the dan-
ger of unfair prejudice.21 When analyzing the last prong—legal relevance un-
der Mil. R. Evid. 403—a military judge should consider the following non-ex-
haustive list of factors: (1) strength of the proof of the prior act, (2) probative
weight of the evidence, (3) potential to present less prejudicial evidence, (4)
15 United States v. Harrow, 65 M.J. 190, 199 (C.A.A.F. 2006).
16 United States v. Jasper, 72 M.J. 276, 279-80 (C.A.A.F. 2013).
17 Mil. R. Evid. 404(b)(1).
18 Mil. R. Evid. 404(b)(2).
19 United States v. Hyppolite, 70 M.J. 161, 164-65 (C.A.A.F. 2019); United States v.
Hills, 75 M.J. 350, 357 n.4 (C.A.A.F. 2016).
20United States v. Browning, 54 M.J. 1, 6 (C.A.A.F. 2000) (citations omitted) (em-
phasis added).
21 United States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989) (citations omitted).
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Opinion of the Court
possible distraction of the fact finder, (5) time needed to prove the prior con-
duct, (6) temporal proximity of the prior event, (7) frequency of the acts, (8)
presence of any intervening circumstances, and (9) relationship between the
parties.22 When the military judge conducts a proper balancing test under Mil.
R. Evid. 403, the ruling will not be overturned unless there is a clear abuse of
discretion.23 We owe less deference to the military judge who fails to articulate
his Mil. R. Evid. 403 balancing analysis on the record, and no deference where
such analysis is altogether absent.24
In this case, the military judge initially granted a pretrial Defense motion
to preclude use of the evidence under Mil. R. Evid. 404(b), finding that due to
the lack of similarities and the lapse of time between the charged acts, the
probative value of the evidence for Mil. R. Evid. 404(b) purposes was substan-
tially outweighed by the danger of unfair prejudice. The Government moved
for reconsideration of this ruling, arguing it should be able to use the evidence
to show “a pattern, intent, and a lack of mistake on behalf of [Appellant].”25
Subsequently, after the close of the evidence at trial, the Defense requested
and was granted a mistake-of-fact-as-to-consent instruction for the nonconsen-
sual touching of MA3 Mike alleged in Specification 1 of the Charge. In re-
sponse, the Government requested an instruction allowing the evidence re-
garding MA3 Madison and MA3 Hotel (Specifications 2 and 3) to be used under
Mil. R. Evid. 404(b) to prove Appellant’s absence of mistake with respect to
MA3 Mike (Specification 1). The Defense opposed under Reynolds’ third
prong,26 arguing that the probative value of the evidence was substantially
outweighed by the danger of unfair prejudice that the evidence would be im-
properly used to prove Appellant’s propensity to commit the charged act.
The military judge granted the Government request for a Mil. R. Evid.
404(b) instruction, which he found “narrowly tailored with absence of mistake
22 United States v. Berry, 61 M.J. 91, 95 (C.A.A.F. 2005) (citing United States v.
Wright, 53 M.J. 476, 482 (C.A.A.F. 2000)). While the Wright-Berry factors were initially
used to assess the legal relevance of propensity evidence offered under Mil. R. Evid.
413, our superior court has also used them to assess the legal relevance of other-acts
evidence under Mil. R. Evid. 404(b). See United States v. Barnett, 63 M.J. 388, 396
(C.A.A.F. 2006).
23 United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000) (citation and internal
quotation marks omitted).
24 Id.25 Appellee’s Mot. to Attach of 15 December 2021, App. A at 4.
26 The Defense conceded the first two prongs of the Reynolds test were met.
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of fact and intent,” and concluded, without further elaboration, that “the pro-
bative value is not substantially outweighed by a danger of unfair prejudice.”27
He provided the Defense-requested, mistake-of-fact instruction for Specifica-
tion 1 and the standard “spillover” instruction that the members must keep
the evidence of each offense separate. He then instructed that, notwithstand-
ing the spillover instruction, evidence that Appellant may have touched MA3
Madison and MA3 Hotel on the buttocks without their consent may be consid-
ered “to show absence of mistake of fact as to consent related to [MA3 Mike]”
and “for the purpose of its tendency, if any, to show [Appellant’s] intent, as it
relate[d] to touching [MA3 Mike] with the intent to gratify his sexual de-
sires.”28 He further instructed that the members “may not consider this evi-
dence for any other purpose” and “may not conclude or infer from this evidence
that the accused is a bad person or has criminal tendencies.”29
While we give the military judge’s ruling little deference because he did not
articulate his reconsidered Mil. R. Evid. 403 balancing on the record, we find
his conclusion under Reynolds’ third prong reasonable. We find the evidence of
Appellant’s conduct toward MA3 Madison and MA3 Hotel probative regarding
the issues of intent and lack of mistake with respect to his subsequent conduct
toward MA3 Mike, particularly in light of the mistake-of-fact instruction per-
taining to MA3 Mike that the military judge gave at Defense request. Although
the incidents occurred eight months and two years prior, respectively, they in-
volve similar one-on-one conduct by Appellant using his supervisory role to
commit repeated, nonconsensual touching of a sexual nature upon isolated, fe-
male subordinates despite their protests. As this evidence was already before
the members on the charged offenses, it required no additional time to prove
at trial, presented no possible distraction to the factfinder, and was the least
prejudicial evidence possible under the circumstances. The evidence is also
strong, as it is corroborated by Appellant’s admissions that he touched both
MA3 Madison and MA3 Hotel on the buttocks because he was attracted to
them, and that MA3 Hotel was shocked when he did so.
We further find the probative value of this evidence on the issues of intent
and lack of mistake is not substantially outweighed by the danger of unfair
prejudice that the evidence was impermissibly used as mere propensity evi-
dence. In conjunction with his Mil. R. Evid. 404(b) instruction, the military
27 R. at 685.
28 Id. at 705.
29 Id.
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judge provided an appropriate limiting instruction that the evidence not be
used to conclude or infer that the accused is a bad person or has criminal
tendencies, and we find no evidence in the record to overcome the presumption
that the members followed this instruction.30
Accordingly, we find no abuse of discretion by the military judge in allowing
the evidence regarding Appellant’s touching of MA3 Hotel and MA3 Madison
to be considered for the limited purposes under Mil. R. Evid. 404(b) of proving
Appellant’s intent and lack of mistake with respect to the charged touching of
MA3 Mike.
C. Sentence Appropriateness
Appellant asserts that his sentence to a bad-conduct discharge is inappro-
priately severe. We review sentence appropriateness de novo.31
“Sentence appropriateness involves the judicial function of assuring that
justice is done and that the accused gets the punishment he deserves.”32 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.”33
We have significant discretion in determining sentence appropriateness, but
may not engage in acts of clemency.34
We find the sentence to a bad-conduct discharge appropriate in this case.
Appellant was convicted of using his positional authority to sexually abuse
three isolated subordinates under his supervision. While his service and char-
acter in other contexts may have been exemplary, his wrongful actions caused
the three victims in this case to suffer not only fear and anxiety, but also a loss
of faith in their fellow Sailors. Taking into account the evidence in extenuation
and mitigation, as well as in aggravation, and giving individualized consider-
ation to Appellant and the nature and seriousness of the offenses, we find that
the sentence to a bad-conduct discharge serves the interests of justice and that
Appellant received the punishment he deserves.
30 See United States v. Short, 77 M.J. 148, 151 (C.A.A.F. 2018).
31 United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006).
32 United States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988).
33 United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (citation and internal
quotation marks omitted).
34 United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
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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.35
The findings and sentence are AFFIRMED.
FOR THE COURT:
KYLE D. MEEDER
Interim Clerk of Court
35 Articles 59 & 66, UCMJ.
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