United States v. Specialist GREGORY G. DIXON

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
HAIGHT, PENLAND, and WOLFE
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist GREGORY G. DIXON
United States Army, Appellant
ARMY 20140619
Headquarters, III Corps and Fort Hood
Wade N. Faulkner, Military Judge
Colonel Tania M. Martin, Staff Judge Advocate
For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major Christopher D.
Coleman, JA; Captain Jennifer K. Beerman, JA (on brief).
For Appellee: Colonel Mark H. Sydenham, JA; Major John K. Choike, JA; Captain
Scott L. Goble, JA (on brief).
23 May 2016
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SUMMARY DISPOSITION
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Per Curiam:
A military judge sitting as a special court-martial found appellant guilty,
contrary to his pleas, of two specifications of abusive sexual contact, 1 one
specification of disorderly conduct, one specification of wrongfully communicating
a threat, and one specification of unlawful entry, in violation of Articles 120 and
134, Uniform Code of Military Justice, 10 U.S.C. §§ 920 and 934 [hereinafter
UCMJ]. The military judge sentenced appellant to a bad-conduct discharge,
confinement for fifteen days, and reduction to the grade of E-1. The convening
authority approved the sentence as adjudged.
1
Appellant was arraigned on three specifications of abusive sexual contact. Prior to
announcing findings, the military judge sua sponte found two of the specifications to
be unreasonably multiplied and merged these two of the specifications into one.
Thus, original Specifications 1 and 2 of Charge I were renumbered into Specification
1, and original Specification 3 of Charge I was renumbered into Specification 2 of
that charge.
DIXON—ARMY 20140619
This case was referred to us for review under Article 66(b), UCMJ. Appellant
raises two assignments of error, one of which merits discussion and relief.
Appellant personally raises several matters pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982), one of which merits discussion but no relief.
BACKGROUND
Specialist (SPC) PK arrived at Fort Hood in January 2014 where she briefly
worked with appellant. Appellant and SPC PK lived in the barracks and across the
hall from each other. On 31 January 2014, SPC PK was getting ready to go out with
a friend. Appellant, who was drunk, knocked on SPC PK’s door. Specialist PK
answered the door and appellant entered the room and began apologizing for some
things he had said and done at work. Appellant then tried to hug SPC PK who
backed away. Appellant then grabbed SPC PK and hugged her. While hugging her,
appellant’s hand “brush[ed]” her breast and he placed his head on her left breast.
Appellant then “invited himself” to join SPC PK for the evening and left the room so
he could change his clothes.
After changing, appellant again knocked on SPC PK’s door. Specialist PK
initially ignored the knocking, but cracked open the door as the knocking grew
louder. Appellant then forced the door open and entered the room. Appellant again
apologized for being rude at work and asked to hug SPC PK again. Specialist PK
told him no, told him to stop, and put out her hand in front of her. Appellant
grabbed SPC PK around the waist and pulled her in and placed his face on her chest
again. While his head was on her chest, appellant rubbed her back with his hand.
Specialist PK pushed appellant off. Appellant yelled at SPC PK but then left the
room.
Appellant then began knocking on the door a third time. Specialist PK asked
appellant to leave her alone. Appellant began yelling and “ordering” her to open the
door. When SPC PK still did not open the door, appellant told SPC PK that he hated
her and threatened to kill her. Specialist PK called 911.
While SPC PK waited for the police, appellant alternately yelled at her and
knocked on the door. For unclear reasons, he also slid five twenty-dollar bills under
the door. When the military police arrived, they found appellant kicking SPC PK’s
door.
DISCUSSION
A. Factual Sufficiency of Abusive Sexual Contact Offenses
In his first assignment of error, appellant alleges that the evidence is factually
insufficient to sustain his convictions for abusive sexual contact. We agree in part.
2
DIXON—ARMY 20140619
[A] Court of Criminal Appeals is required to conduct a de
novo review of the entire record of a trial, which includes
the evidence presented by the parties and the findings of
guilt. Such a review involves a fresh, impartial look at the
evidence, giving no deference to the decision of the trial
court on factual sufficiency beyond the admonition in
Article 66(c), UCMJ, to take into account the fact that the
trial court saw and heard the witnesses.
United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002)
Specification 1 of Charge I alleged that appellant committed abusive sexual
contact when he “touched [SPC PK’s] breast with an intent to abuse, humiliate, and
degrade [SPC PK], and to arouse and gratify his sexual desire, and grab her around
her waist with his hand, with an intent to arouse and gratify his sexual desire . . . .”
In our review of the record, we find factually sufficient evidence that
appellant touched SPC PK’s breast with an intent to arouse and gratify his sexual
desire.
We do not, however, find factually sufficient evidence to support that part of
the specification that alleges appellant: a) touched SPC PK’s breast with an intent to
abuse, humiliate or degrade SPC PK; or b) grabbed SPC PK’s waist with his hand
with an intent to gratify his sexual desire. Accordingly, we will provide relief in our
decretal paragraph.
Specification 2 of Charge I alleged that appellant committed abusive sexual
contact when he “grabb[ed] [SPC PK] around her lower back with his hand, with an
intent to arouse and gratify his sexual desire, thereby causing bodily harm to [SPC
PK].” In our review of the record we find insufficient facts to support the allegation
that appellant acted with the required sexual intent, and he is therefore guilty only of
the lesser-included offense of assault consummated by a battery. Accordingly, we
will provide relief in our decretal paragraph.
B. Government’s Closing Argument
Appellant, a married African-American adult of 27 years, raises a complaint
under Grostefon which merits discussion. He asserts government counsel referred to
him in a racially offensive manner by calling him “boy” twice. Specifically,
appellant characterizes as racial epithets government counsel’s remark in closing,
“This old boy was ‘Courtin’ n Sparkin’.’” (quotations in original), and subsequent
argument in rebuttal, “And they keep harping on the fact that he’s not a big-ole
boy.”
3
DIXON—ARMY 20140619
We have carefully considered the context surrounding counsel’s use of the
word, “boy,” noting our nation’s highest court’s view thereof: “Although it is true
the disputed word will not always be evidence of racial animus, it does not follow
that the term, standing alone, is always benign. The speaker’s meaning may depend
on various factors including context, inflection, tone of voice, local custom, and
historical usage.” Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 (2006). In this case,
appellant was elsewhere described as acting as if he had an immature crush on SPC
PK, and we are confident in concluding that this—rather than “racial animus”—was
the backdrop for the comments. 2
Notwithstanding this judgment and our associated conclusion that appellant
has not demonstrated plain error, we invite counsel to more deliberately choose their
words.
CONCLUSION
With regards to Specification 1 of Charge I, we AFFIRM only so much of the
specification as follows:
In that Specialist Gregory G. Dixon, U.S. Army, did at or
near Fort Hood, Texas, on or about 31 January 2014,
commit sexual contact upon [SPC PK], to wit: touched
[SPC PK’s] breast with an intent to arouse and gratify his
sexual desire, thereby causing bodily harm to [SPC PK].
With regards to Specification 2 of Charge I, we AFFIRM only so much of the
finding of guilty as finds that the appellant did:
at or near Fort Hood, Texas, on or about 31 January 2014,
commit a battery upon SPC PK, to wit: grab her around
her lower back with his hand, thereby causing bodily harm
to SPC PK, in violation of Article 128, UCMJ.
The remaining findings of guilty are AFFIRMED.
We are able to reassess the sentence and do so after a thorough analysis of the
totality of circumstances presented by appellant’s case and in accordance with the
principles articulated by our superior court in United States v. Winckelmann, 73 M.J.
11, 15-16 (C.A.A.F. 2013), and United States v. Sales, 22 M.J. 305 (C.M.A. 1986).
The nature of the remaining offenses still captures the gravamen of the original
offenses. We are confident that based on the entire record and appellant’s course of
conduct, the military judge still would have imposed a sentence of at least that
2
We also note that there was no objection to the trial counsel’s argument.
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DIXON—ARMY 20140619
which was adjudged. As we find that sentence appropriate, the approved sentence is
AFFIRMED.
FOR
FORTHE
THECOURT:
COURT:
MALCOLMH.
MALCOLM H.SQUIRES,
SQUIRES,JR.
JR.
ClerkofofCourt
Clerk Court
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