United States v. Rogers

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM S32545
________________________
UNITED STATES
Appellee
v.
Kevin L. ROGERS
Staff Sergeant (E-5), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 31 March 2020
________________________
Military Judge: Mark W. Milam.
Approved sentence: Bad-conduct discharge, confinement for 6 days, re-
duction to E-3, and a reprimand. Sentence adjudged 8 June 2018 by
SpCM convened at Edwards Air Force Base, California.
For Appellant: Lieutenant Colonel Anthony D. Ortiz, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant
Colonel G. Matt Osborn, USAF; Mary Ellen Payne, Esquire.
Before MINK, LEWIS, and D. JOHNSON, Appellate Military Judges.
Judge LEWIS delivered the opinion of the court, in which Senior Judge
MINK and Judge D. JOHNSON joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
LEWIS, Judge:
A special court-martial composed of a military judge sitting alone convicted
Appellant, contrary to his pleas, of two specifications of indecent conduct in
violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §
United States v. Rogers, No. ACM S32545
934. 1,2 The military judge sentenced Appellant to a bad-conduct discharge, con-
finement for six days, reduction to the grade of E-3, and a reprimand. The con-
vening authority approved the adjudged sentence.
Appellant raises five issues on appeal: (1) whether his conviction for inde-
cent conduct towards Ms. ED is legally sufficient; (2) whether his conviction
for indecent conduct towards Ms. DCH is legally and factually sufficient; (3)
whether his bad-conduct discharge is an inappropriately severe sentence; (4)
whether the record of trial was improperly authenticated; and (5) whether his
conviction for indecent conduct towards Ms. ED is factually sufficient. 3
After considering the fourth issue, we find this issue warrants no further
discussion or relief. See United States v. Matias, 25 M.J. 356, 361 (C.M.A.
1987). We will address Appellant’s first, second, and fifth issues together as
they relate to the legal and factual sufficiency of his convictions. We find no
prejudicial error and affirm the findings with one exception and the sentence.
I. BACKGROUND
Appellant was enlisted in the United States Marine Corps (USMC) for more
than nine years and reached the rank of Sergeant (E-5) before being honorably
discharged. After a break in service, Appellant enlisted in the United States
Air Force Reserve as a Staff Sergeant (E-5) and performed military duties at
March Air Reserve Base (ARB), California. During his first few months of Air
Force service, Appellant would often spend the week at March ARB for active
duty or inactive duty for training (IDT) and would return to his home of record
on the weekend.
When Appellant performed duty at March ARB during this time, he stayed
at the installation’s lodging facility, the March Inn. Appellant completed ten
such stays between November 2016 and late January 2017 without incident.
During these stays, Appellant became well known to the management and the
1 Unless otherwise indicated, all references in this opinion to the Uniform Code of Mil-
itary Justice (UCMJ) and Rules for Courts-Martial (R.C.M.) are to the Manual for
Courts-Martial, United States (2016 ed.).
2 The military judge acquitted Appellant of a third specification of indecent conduct
and one charge and specification of stalking, in violation of Article 120a, UCMJ, 10
U.S.C. § 920a. For the two indecent conduct specifications of which Appellant was con-
victed, the military judge’s findings excepted certain words and substituted other
words.
3Appellant personally asserts issues (4) and (5) pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982).
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United States v. Rogers, No. ACM S32545
guest services representatives of the March Inn as he typically visited the front
desk one or more times per day and said hello to all the employees.
On 30 January 2017, Appellant began a period of active duty and checked
into the March Inn for a four night stay. On 1 February 2017, Ms. ED was the
housekeeper assigned to clean Appellant’s room. 4 ED had worked at the March
Inn for 20 years as a housekeeper. When ED went to clean Appellant’s room,
she knocked on the door twice and announced “housekeeping” twice. ED testi-
fied she received no response so she entered Appellant’s room with her master
key. 5 Upon entry, ED testified she saw Appellant sitting on the sofa wearing
his Airman Battle Uniform (ABU) with his pants “open all the way,” his penis
“protruding” but covered by his underwear. ED could not see the skin of Appel-
lant’s penis. ED testified she told Appellant to close the buttons of his pants
and that Appellant replied “oops, I’m sorry,” then stood up, but did not button
his ABU pants. ED testified she did not report Appellant’s behavior at this
time.
ED testified that the next day—2 February 2017— she again went to clean
Appellant’s room, but moved the cleaning time to the end of her shift. ED tes-
tified she knocked twice and announced her presence but received no answer.
Upon entry, ED testified she saw Appellant sitting on the sofa “the same way
again” but with his “hand on his lap” and his head leaned to the side and one
earbud headphone in his ear. ED testified she thought Appellant may have
been sleeping. ED testified she saw Appellant’s buttons on his pants were half-
way open 6 and she could see the shape of Appellant’s penis through his under-
wear. ED described Appellant’s penis as “big.” ED testified she told the now
alert Appellant that he should put up the “do not disturb” sign if he wanted to
take a nap. According to ED, Appellant responded by asking if she wanted to
take a nap with him. ED testified she responded by telling Appellant that he
4 ED testified with assistance of a translator as English was not her primary language.
5 Appellant was charged with indecent conduct towards ED on divers occasions. The
military judge acquitted Appellant, inter alia, of the words “on divers occasions” and
“between on or about 1 February 2017” which meant the Government did not prove
beyond a reasonable doubt that Appellant committed indecent conduct towards ED on
more than one occasion. We include references to ED’s testimony about cleaning Ap-
pellant’s room on 1–2 February 2017 below to provide context. We understand the mil-
itary judge convicted Appellant only of indecent conduct one time towards ED “on or
about 3 February 2017.” We make no findings of fact for any portion of this specifica-
tion for which Appellant was acquitted. See United States v. Bennitt, 72 M.J. 266, 269
(C.A.A.F. 2013); cf. United States v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017) (Defend-
ants are generally acquitted of offenses, not of specific facts, and thus to the extent
facts form the basis for other offenses, they remain permissible for appellate review).
6 ED did not specify the type of pants Appellant was wearing.
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United States v. Rogers, No. ACM S32545
shouldn’t joke like that, that he should “be careful,” and that “if you talk like
that you’ll make yourself awful.” ED testified that she quickly cleaned Appel-
lant’s room, left, and reported Appellant to her lead housekeeper. ED testified
she wanted Appellant to be moved to a different building so he would not be in
her “area again.”
When ED checked the housekeeping list the next day, 3 February 2017, she
saw Appellant was still in the same room and that she was scheduled to clean
it. She did not go back to the lead housekeeper but decided to clean Appellant’s
room at the end of her shift. When that time came, ED knocked three times on
Appellant’s door, louder than the prior two days, and received no response.
Upon entry by ED, Appellant was sitting on the sofa “the same way” which she
demonstrated for the military judge. Trial counsel described this demonstra-
tion as “the witness is sitting with her legs open so that her knees are [apart]
just about as wide as they can go.” Appellant’s penis appeared “big” to ED un-
derneath his underwear. On cross-examination, ED testified she “saw the pe-
nis elongated not a bulge.” On redirect examination, ED clarified “[i]f it was
not erected [sic] it would have not pointed up like that. It would have been a
bulge underneath his underwear . . . .”
ED also testified Appellant looked at her, immediately closed his laptop
and unplugged his headphones from the laptop. ED never explained whether
she saw Appellant wearing the headphones. ED testified that she asked Ap-
pellant “do you want room service[?]” and then “told him” she was cleaning the
room. As she began cleaning his room, Appellant stood up and started talking
to her. Appellant said he “need[ed] help,” “to do something.” When ED asked
what he needed help with, Appellant said he “needs [her] to help him do this”
and then made a gesture with his hand. ED demonstrated Appellant’s gesture
which trial counsel described as “the witness raised her right hand in the air
and moved her fist back and forth.” ED interpreted this gesture that Appellant
“wanted [her] to touch his penis.” ED told Appellant “you really nasty.” ED was
“burning hot” mad at this point. She finished cleaning Appellant’s room then
walked around the building in an attempt to calm down.
Sometime on 3 February 2017, the lodging manager, Mr. MV, learned of
ED’s complaint about Appellant’s behavior that was made on 2 February 2017.
It is unclear exactly what time MV learned of ED’s complaint so it may have
been before or after ED cleaned Appellant’s room on 3 February 2017. What is
known is that MV’s response to ED’s complaint was to instruct the guest ser-
vices manager, Ms. JM, to contact Appellant and inform him “this won’t be
tolerated; and if it happens again, we’ll take further action and contact his
leadership.”
JM remembered calling Appellant on the phone “in February” on “the mat-
ter that happened with [ED].” JM told Appellant that ED “complained about
4
United States v. Rogers, No. ACM S32545
entering his room; and when ED entered the room, he had his pants open, and
it was inappropriate.” JM described Appellant’s response as “he didn’t think
he was doing anything, but he would make sure that it doesn’t happen again.”
The day and time of JM’s phone call to Appellant are unknown.
At 1900 hours on 3 February 2017, Appellant departed March ARB for his
home of record and arrived home two hours later for the weekend. Appellant
would return to March ARB for his next set of active duty orders on 6 February
2017 where he again would stay at the March Inn.
A second housekeeper, Ms. DCH 7 testified about an incident with Appellant
while she cleaned his lodging room, which the evidence showed was between 6
and 9 February 2017. DCH had been a housekeeper at March Inn for more
than 14 years. DCH would cover for her co-workers on their days off which led
to her assignment to clean Appellant’s room. DCH knew definitively that the
incident between Appellant and her occurred before Appellant moved lodging
rooms from near the front desk to another building. There is no dispute that
Appellant was told by March Inn management to move rooms on 8 February
2017 and he completed that move from a lodging room near the front desk to a
lodging room in a different building on 9 February 2017. 8 Even though DCH
did not recall the date of her incident with Appellant, the evidence at trial es-
tablished it occurred between the date Appellant checked back into the March
Inn on 6 February 2017 and the date he changed buildings on 9 February 2017.
Before the incident, DCH testified that she had already met Appellant
twice, but he did nothing sexual to her. 9 DCH recalled a time when Appellant
asked her for towels outside his room and tried to converse with her and one of
her co-workers, Ms. CB. Another time, DCH testified that as she finished
7 DCH also testified with the assistance of an interpreter.
8Appellant’s change of rooms was not related to DCH. It appears to be a combination
of ED’s complaint and the report of a female March Inn guest services representative
that Appellant followed her on 7 February 2017 and attempted to touch her even
though she had rebuffed his advances. March Inn management learned of the guest
services representative’s complaint on 8 February 2017. The military judge acquitted
Appellant of one charge and specification of stalking the guest services representative,
an alleged violation of Article 120a, UCMJ.
9 Appellant was charged with indecent conduct with DCH on divers occasions. After
the Government rested its findings case, the military judge granted an unopposed de-
fense motion for a finding of not guilty under R.C.M. 917 to the words “on divers occa-
sions” on this specification. We include a portion of DCH’s testimony only to provide
context for DCH’s later trial testimony. We make no findings of fact for any portion of
this specification for which Appellant was acquitted. See Bennitt, 72 M.J. at 269.
5
United States v. Rogers, No. ACM S32545
cleaning Appellant’s room, he invited her to “have a beer with him” after she
“finished work.”
On the day of the incident, DCH knocked multiple times on Appellant’s
lodging room door and announced “housekeeping.” DCH received no response
so she opened the door with her master key and saw Appellant standing in his
room. DCH asked him if he wanted her to come back later. The transcript does
not indicate whether Appellant responded, but DCH explained the reason for
her question was “it’s better to clean [a room] when no one is around.” DCH
recalled Appellant wearing “the pants that military personnel use.” As DCH
started cleaning the room, she saw “out of the corner of [her] eye” that Appel-
lant had sat down, his “zipper was open” and Appellant “was touching himself”
by “rubbing on his intimate part.” DCH clarified that she meant Appellant was
touching “his penis” and she also saw he “had his cell phone in the other hand.”
DCH demonstrated how Appellant was “rubbing” and trial counsel described
it as “the witness took her right hand and put [it] on top of her left hand and
sort of with the palm went around in circles.” DCH did not look at Appellant
directly “out of embarrassment,” “because of what he was doing.”
As DCH finished cleaning Appellant’s room, she asked him “if he needed
anything else, needed something extra[?]” Appellant responded that he “al-
ways needed something extra” and began laughing in a manner that DCH de-
scribed as “cynically” and “mocking.” DCH explained Appellant’s comments
further as “[i]t’s just the way he said [it] when I was leaving when I was getting
out of the room. Like irony, like sarcastic. It’s like a person who always needs
to be sexually active.” In response to a question by the military judge, DCH
explained that she believed “at that moment [Appellant] was inviting [her] to
have [a] sexual relationship with him, relations with him.” DCH clarified it
was first “because of the way” Appellant said the words, and then “because of
the words” themselves.
On 9 February 2017, MV—the lodging manager—was walking towards his
vehicle in the parking lot outside the March Inn. Appellant shouted MV’s name
and approached him. Appellant wanted “to discuss why he was being moved”
and commented that it made “him look like a pervert, judged by others” and
he “didn’t want to be perceived that way.” MV informed Appellant that “no one
was aware of it except for [MV himself] and management.” Appellant told MV
that he “had been sleeping” and it won’t happen again. At the time of this con-
versation, MV did not know about the incident with DCH.
The next day, after he moved rooms, Appellant again approached MV as
MV walked to his vehicle in the March Inn parking lot. Appellant asked MV
“what happens if someone walks in again.” MV told Appellant “[t]hat’s what
the do not disturb sign is for.” After Appellant moved buildings, March Inn
6
United States v. Rogers, No. ACM S32545
management imposed a rule that two housekeepers had to be present to clean
Appellant’s room. 10
II. DISCUSSION
A. Legal and Factual Sufficiency
1. Additional Background
For the indecent conduct conviction involving ED, through counsel, Appel-
lant asserts the evidence is not legally sufficient because his conduct was not
indecent. He argues his conduct was not overtly sexual and compares the facts
in his case to more egregious facts from convictions that have been upheld on
appeal. He also challenges whether “sexually implicit conduct” can be indecent.
Appellant personally asserts that his conviction involving ED is not factu-
ally sufficient because he “was wearing a T-shirt at the time, his pants were
up at his waist level, it was unlikely that [ED] would be able to see his penis,
and there was conflicting testimony on whether he had an erection.” Appellant
also argues that ED’s “facility with the English language” and the differences
in culture could “lead her to misinterpret, at a minimum the ‘sexually implicit’
comment made to her.”
Appellate government counsel argues the conviction involving ED is legally
and factually sufficient. The Government characterizes Appellant’s conduct
with ED as “both overtly and clearly sexual in nature.” The Government as-
serts “the determination of whether an act is indecent requires examination of
all the circumstances, including the age of the victim, the nature of the request,
the relationship of the parties, and the location of the intended act.” See United
States v. Rollins, 61 M.J. 338, 344 (C.A.A.F. 2005) (citation omitted). The Gov-
ernment then argues we should look inter alia at the location of the conduct, a
lodging room on a military installation, and that Appellant propositioned ED
while wearing part of his military uniform. The Government elaborates that
Appellant
purposefully did not answer when Ms. ED knocked on his door,
rendering her an unknowing victim as she opened the door to
find Appellant prepositioned on a sofa with his legs and knees
spread as wide as possible, his ABU pants unbuttoned, and his
erect penis visibly protruding underneath his underwear.
10The military judge acquitted Appellant of a third specification of indecent conduct
in July 2017 after the two-housekeeper rule was instituted. This allegation involved
housekeepers, but did not involve ED or DCH.
7
United States v. Rogers, No. ACM S32545
The Government disagrees that cultural differences caused ED to misunder-
stand Appellant’s behavior as Appellant’s words and gestures provided a “uni-
versal interpretation” that he wanted ED to masturbate his erect penis. Fi-
nally, the Government points out that ED could tell that Appellant’s penis was
“big” and “elongated” even if his pants were at his waist as his pants, knees,
and legs were all wide open.
On the indecent conduct conviction involving DCH, Appellant asserts that
it “cannot be held as legally or factually sufficient” as (1) DCH testified that
she did not actually see Appellant rub his genitals; (2) his comment to DCH
was “at worst” sexual innuendo; and (3) the facts do not establish an exact
timeframe. On the first point, Appellant elaborates that DCH only saw Appel-
lant “out of the corner of her eye” and never saw his penis. Appellant also points
us to the cross-examination of DCH where she was asked “[y]ou’re not positive
whether [Appellant] was rubbing his thigh or somewhere close to his groin”
and answered “No.” On the second point, Appellant claims the sexually implicit
comment that he “always needed something extra” was at worst sexual innu-
endo, and not indecent under the Manual for Courts-Martial definition. Appel-
lant also challenges DCH’s interpretation of his expression and comments as
sexual in nature and argues that “irony and sarcasm are not crimes in the
military nor in any other American jurisdiction.” On the third point, Appellant
claims for the first time on appeal that the offense against DCH did not occur
during a period of active duty or inactive duty training as DCH provided un-
clear testimony on when this incident occurred.
The Government responds to the first point by arguing that DCH did not
need to look at Appellant directly as she saw all she needed to out of the corner
of her eye. According to the Government, DCH did not need to see Appellant’s
exposed penis to know, based on his motions in a certain area of the body, that
he was masturbating. On the second point—regarding the cross-examination
question on whether Appellant was rubbing his thigh or somewhere close to
his groin—the Government points us to DCH’s earlier testimony and argues
she made it quite clear Appellant was “touching himself” and “rubbing on his
intimate part.” On the third point, the Government argues that the evidence
of Appellant’s active duty orders, his lodging receipts from the March Inn, and
testimony of the witnesses demonstrate that Appellant was on active duty at
the time of this offense.
2. Law
We review issues of legal and factual sufficiency de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (citation omitted). Our assess-
ment of legal and factual sufficiency is limited to the evidence produced at trial.
United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993) (citations omitted).
8
United States v. Rogers, No. ACM S32545
The test for legal sufficiency of the evidence is “whether, considering the
evidence in the light most favorable to the prosecution, a reasonable factfinder
could have found all the essential elements beyond a reasonable doubt.” United
States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987) (citation omitted); see also
United States v. Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002) (citation omitted).
“[I]n resolving questions of legal sufficiency, we are bound to draw every rea-
sonable inference from the evidence of record in favor of the prosecution.”
United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citations omitted).
“The term reasonable doubt, however, does not mean that the evidence must
be free from conflict.” United States v. Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim.
App. 2017) (citing United States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986)),
aff’d, 77 M.J. 289 (C.A.A.F. 2018).
The test for factual sufficiency is “whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, [we are] convinced of the [appellant]’s guilt beyond a reasonable
doubt.” Turner, 25 M.J. at 325. “In conducting this unique appellate role, we
take ‘a fresh, impartial look at the evidence,’ applying ‘neither a presumption
of innocence nor a presumption of guilt’ to ‘make [our] own independent deter-
mination as to whether the evidence constitutes proof of each required element
beyond a reasonable doubt.’” Wheeler, 76 M.J. at 568 (alteration in original)
(quoting Washington, 57 M.J. at 399).
For the indecent conduct offense involving ED, a violation of Article 134,
UCMJ, the Prosecution had to prove beyond a reasonable doubt based on the
military judge’s findings 11 that (1) on or about 3 February 2017, at or near
March ARB, California, Appellant engaged in certain conduct to wit: making
sexual gestures by moving his hand in an up and down motion and making
sexually implicit comments to ED while he was in a state of undress; (2) that
the conduct was indecent; and (3) that, under the circumstances, the conduct
was of a nature to bring discredit upon the armed forces. See Manual for
Courts-Martial, United States (2016 ed.) (MCM), pt. IV, ¶ 90.b.
For the indecent conduct offense involving DCH, also a violation of Article
134, UCMJ, the Prosecution had to prove beyond a reasonable doubt based on
11 The military judge found Appellant guilty by exceptions and substitutions of the
specification involving ED. Specifically, Appellant was found not guilty of the words
“on divers occasions,” and “between on or about 1 February 2017 and on or about 3
February 2017, wrongfully commit indecent conduct to wit: making sexual gestures
and comments.” The substituted words are contained above in our recitation of the
elements of the offense.
9
United States v. Rogers, No. ACM S32545
the military judge’s findings 12 that (1) between on or about 6 February 2017
and on or about 8 February 2017, at or near March ARB, California, Appellant
engaged in certain conduct to wit: rubbing his genitals or groin area in front of
and then making sexually implicit comments to DCH; (2) that the conduct was
indecent; and (3) that, under the circumstances, the conduct was of a nature to
bring discredit upon the armed forces. See id.
“Indecent” means that form of immorality relating to sexual impurity
which is grossly vulgar, obscene, and repugnant to common propriety, and
tends to excite sexual desire or deprave morals with respect to sexual relations.
MCM, pt. IV, ¶ 90.c.(1).
“Indecent conduct includes offenses previously proscribed by ‘Indecent acts
with another’ except that the presence of another person is no longer required.”
MCM, pt. IV, ¶ 90.c.(2). Under the prior offense of indecent acts with another,
“[t]he determination of whether an act is indecent requires examination of all
the circumstances, including the age of the victim, the nature of the request,
the relationship between the parties, and the location of the intended act.” Rol-
lins, 61 M.J. at 344 (citation omitted). “[A]cts not inherently indecent . . . may
be rendered so by the accompanying words and circumstances.” United States
v. Wilson, 13 M.J. 247, 250 (C.M.A. 1982) (citation omitted) (evaluating the
offense of indecent assault, a violation of Article 134, UCMJ, prior to 1 October
2007). “The definition of indecency requires consideration of both the circum-
stances of the act itself and societal standards of common propriety.” United
States v. Burkhart, 72 M.J. 590, 596 (A.F. Ct. Crim. App. 2013) (citation omit-
ted) (discussing indecent act, a violation of Article 120(k), UCMJ, 10 U.S.C. §
920(k), in effect from 1 October 2007 to 27 June 2012).
Service discrediting conduct is “conduct which has a tendency to bring the
service into disrepute or which tends to lower it in the public esteem.” MCM,
pt. IV, ¶ 60.c.(3).
3. Analysis
a. Indecent Conduct towards ED
Appellant argues his conviction for indecent conduct towards ED is legally
insufficient as it was not overtly sexual and that sexually implicit conduct does
12 After the Government rested, the military judge granted the Defense’s Motion for A
Finding of Not Guilty under R.C.M. 917 to the words “on divers occasions” on the spec-
ification involving DCH. When the military judge announced his findings, for the sec-
ond time, he found Appellant guilty by further exceptions and substitutions of the spec-
ification involving DCH. Appellant was found not guilty of the words “rubbing the gen-
itals in the presence of, and making inappropriate comments to,” in this specification.
The substituted words are contained above in the elements of the offense.
10
United States v. Rogers, No. ACM S32545
not meet the definition of indecent. We disagree. Appellant’s comments and
gestures towards ED, taken together, are explicitly sexual in nature. We also
conclude based on all the circumstances that Appellant’s comments and ges-
tures during his last interaction with ED meet the definition of indecent.
The determination of indecency “requires examination of all the circum-
stances.” Rollins, 61 M.J. at 344 (citation omitted). We do not view the words
spoken or the gestures made to see if each one is indecent standing alone. In-
stead, we evaluate all the circumstances including the words spoken by Appel-
lant; the gestures that he made immediately thereafter; his state of undress
with his ABU pants being unbuttoned; the condition of his penis being elon-
gated, pointed up, and visible through his underwear to ED; the location—an
Air Force lodging room—that ED’s job required her to clean; that ED gave Ap-
pellant no indication of consent; that ED was an adult; and their lack of a prior
relationship.
We conclude the military judge had ample evidence, drawing every reason-
able inference from the evidence of record in favor of the Prosecution, to con-
clude that Appellant’s conduct was indecent beyond a reasonable doubt. When
ED opened Appellant’s lodging room door, he sat with his legs spread wide and
an obvious erection visible through his exposed underwear. Appellant chose to
stand up, approach ED while she was cleaning his room, engage her in conver-
sation, tell her he needed her help, and then undeniably demonstrate to her
via sexual gestures that the help he needed was for her to masturbate his pe-
nis. Considering all the circumstances, the military judge could have found
Appellant’s conduct represented a form of immorality relating to sexual impu-
rity which was grossly vulgar, obscene, and repugnant to common propriety
and tended to excite sexual desire or deprave morals with respect to sexual
relations.
On the final element of the offense, given the nature of Appellant’s conduct
and to whom he directed it—ED, an on-duty Air Force employee—the military
judge could have reasonably found Appellant’s conduct had a tendency to bring
the Air Force into disrepute or lower the Air Force’s image in the public esteem.
Drawing “every reasonable inference from the evidence of record in favor of
the prosecution,” the evidence was legally sufficient to support Appellant’s con-
viction of indecent conduct towards ED beyond a reasonable doubt. See Barner,
56 M.J. at 134 (citations omitted).
For factual sufficiency, Appellant personally argues that it was unlikely
ED was able to see his penis and there was conflicting testimony on whether
he had an erection and that language and cultural differences led ED to mis-
interpret the sexually implicit comment. We disagree. On the first point, the
Government only needed to prove beyond a reasonable doubt that Appellant
11
United States v. Rogers, No. ACM S32545
was “in a state of undress,” not that ED could see his penis. We are convinced
the Government carried its burden on this element despite trial defense coun-
sel’s attempts to show the laptop or Appellant’s other clothing could possibly
have blocked ED’s view. On the second point, we considered the cross-exami-
nation of ED which attempted to challenge whether Appellant actually had an
erection. While trial defense counsel extensively questioned ED on this point,
her testimony indicated Appellant’s penis was elongated and pointed up. On
his final point, we considered whether the language and cultural differences
demonstrated in the trial transcript affects our own independent determina-
tion as to whether the evidence constitutes proof of each required element be-
yond a reasonable doubt while accounting for the fact that we did not see or
hear ED testify. We agree with the Government that Appellant’s sexual ges-
tures and words about needing ED’s help were not misunderstood. Appellant
clearly communicated exactly what he wanted from ED.
In our factual sufficiency review, we also considered Appellant’s statements
to March Inn management. When JM confronted Appellant on the telephone
about a complaint by ED that he acted inappropriately, Appellant’s response
was “that he didn’t think he did anything wrong.” On the other hand, the first
time Appellant sought out MV in the parking lot, he claimed to be “sleeping”
which, if true, would also have been an important fact for JM to know. Finally,
we highlight MV’s testimony regarding the second time Appellant approached
him in the parking lot. Appellant wanted to know what would happen if some-
one walked in again. MV pointed out the obvious to Appellant that he had a
“do not disturb” sign available to prevent such a future incident. So too, we
must state the obvious that Appellant could have prevented the entire incident
with ED by using his “do not disturb” sign and we conclude his failure to do so
was not a mere oversight but was instead evidence of his intent.
Having weighed the evidence in the record of trial and having made allow-
ances for not having personally observed the witnesses as the military judge
did, we are convinced of Appellant’s guilt beyond a reasonable doubt. See
Turner, 25 M.J. at 325. Appellant’s conviction for indecent conduct towards ED
is both legally and factually sufficient.
b. Indecent Conduct towards DCH
According to Appellant, DCH did not actually see Appellant rub his geni-
tals. We disagree. DCH described both what she saw Appellant doing and the
manner in which she was able to observe his actions—out of the corner of her
eye. DCH testified that she saw Appellant “touching himself” and “rubbing his
intimate part” which she later clarified was his penis. She demonstrated the
circular rubbing motion Appellant used with his right hand while he held his
cellphone in the opposite hand. We find DCH’s reaction to not want to look
12
United States v. Rogers, No. ACM S32545
directly at Appellant to be completely understandable under the circum-
stances. As DCH testified, she was embarrassed “because of what he was do-
ing” with his pants open.
Appellant attaches particular importance to one question asked by trial de-
fense counsel on cross-examination and DCH’s answer. The question was
“[y]ou’re not positive whether [Appellant] was rubbing his thigh or somewhere
close to his groin” and DCH answered “No.” In closing argument, trial defense
counsel argued “she can’t even say that he was actually rubbing his penis or
his genitals.” The military judge found Appellant guilty of, inter alia, “rubbing
his genitals or groin area.”
We do not share Appellant’s view that this line of cross-examination is sig-
nificant. Instead, we observe one confusingly worded cross-examination ques-
tion with no follow-up questioning. On the latter point, trial defense counsel
did not ask DCH whether it was possible Appellant was rubbing his thigh. He
also did not ask DCH “you are not positive he was rubbing his genitals?” These
questions or others may have clarified how certain DCH was about what she
saw. Trial defense counsel did not ask those questions and we do not know
whether the answers would have supported or refuted Appellant’s claim that
DCH did not see him rubbing his genitals. For legal sufficiency, we must draw
every reasonable inference from the evidence of record in favor of the prosecu-
tion, Barner, 56 M.J. at 134 (citations omitted), and the evidence does not have
to be free from conflict. Wheeler, 76 M.J. at 568 (citation omitted). The military
judge’s finding that Appellant was “rubbing his genitals or groin area” is well
supported by the record.
Appellant argues his comment to DCH was at worst “sexual innuendo”
which does not rise to the level of indecency. Appellant is mistaken that the
words he spoke are evaluated in isolation from his actions and the words must
be indecent on their face without context. The determination of indecency “re-
quires examination of all the circumstances.” Rollins, 61 M.J. at 344 (citation
omitted). This means we evaluate the words spoken by Appellant, his tone; the
testimony that he began rubbing his genitals or groin area with one hand while
his cellphone was in the other hand; that he was wearing pants that “military
personnel use;” the location—an Air Force lodging room—that DCH’s job re-
quired her to clean; that DCH gave Appellant no indication of consent; that
DCH was an adult; and their lack of a prior relationship. We see one minor
point that weighs in Appellant’s favor: according to DCH, Appellant “buttoned
his pants” before he told DCH “he always needed something extra.” Even ac-
knowledging this point, the military judge had ample evidence, drawing every
reasonable inference from the evidence of record in favor of the Prosecution, to
reasonably conclude that Appellant’s act of rubbing his genitals or groin area
in front of DCH and speaking to DCH shortly thereafter with the manner and
13
United States v. Rogers, No. ACM S32545
tone that he did, when taken together, met the definition of indecent. Consid-
ering all the circumstances, the military judge could reasonably conclude that
Appellant’s conduct and words, taken together, represented a form of immo-
rality relating to sexual impurity which was grossly vulgar, obscene, and re-
pugnant to common propriety and tended to excite sexual desire or deprave
morals with respect to sexual relations.
On the final element of the offense, given the nature of Appellant’s conduct
and to whom he directed it—DCH, an on-duty Air Force employee—the mili-
tary judge could have reasonably found Appellant’s conduct had a tendency to
bring the Air Force into disrepute or lower the Air Force’s image in the public
esteem.
Finally, we reach Appellant’s claim that facts do not establish the indecent
conduct towards DCH occurred during a period of active duty or inactive duty
training. We conclude that Appellant was on active duty when he committed
the offense of indecent conduct against DCH. “For the purposes of Article 2(a),
UCMJ, jurisdiction, active duty is an all or nothing condition.” United States
v. Morita, 74 M.J. 116, 120 (C.A.A.F. 2015) (citation and internal quotation
marks omitted). When challenged, the Government must prove jurisdiction by
a preponderance of the evidence. United States v. Oliver, 57 M.J. 170, 172
(C.A.A.F. 2002) (citations omitted). The Government introduced evidence of
Appellant’s orders which called him to active duty. They also presented other
testimony that Appellant stayed in a particular room at the March Inn from 6
February 2017 until he was required to move rooms on 9 February 2017. DCH
was certain that the incident with Appellant occurred before he moved rooms.
We acknowledge that Appellant was not on active duty on 4–5 February 2017,
but on those two days he also was at his home of record—two hours away—
rather than staying in a lodging room at the March Inn.
The military judge found beyond a reasonable doubt that the offense oc-
curred between “on or about 6 February 2017 and on or about 8 February
2017.” If we interpret this portion of Appellant’s assignment of error as a juris-
diction challenge, we conclude the Government proved jurisdiction under Arti-
cle 2(a), UCMJ, 10 U.S.C. § 802(a), by a preponderance of the evidence for the
offense from “6 February 2017 to on or about 8 February 2017.” In our decretal
paragraph, we except the words “on or about” from the findings of guilt regard-
ing the beginning day of the charged timeframe—6 February 2017. This pre-
cludes an argument that we found factually sufficient and affirmed findings of
guilt in Specification 2 of Charge I that included the time period of 4–5 Febru-
ary 2017 when Appellant was not on active duty.
Drawing “every reasonable inference from the evidence of record in favor of
the prosecution,” the evidence was legally sufficient to support Appellant’s con-
viction of indecent conduct towards DCH, as amended, beyond a reasonable
14
United States v. Rogers, No. ACM S32545
doubt. See Barner, 56 M.J. at 134 (citations omitted). Moreover, having
weighed the evidence in the record of trial and having made allowances for not
having personally observed the witnesses as the military judge did, we are con-
vinced of Appellant’s guilt, as amended, beyond a reasonable doubt. See
Turner, 25 M.J. at 325. Appellant’s conviction for indecent conduct towards
DCH, as amended, is both legally and factually sufficient.
B. Sentence Appropriateness
1. Additional Background
Appellant asserts that the bad-conduct discharge he received is overly se-
vere given the nature of the offenses and because his fitness reports from the
USMC could not be obtained by the Government for his trial. On the latter
point, Appellant notes “the military judge found that the Government acted
diligently in trying to get Appellant’s [USMC] records and that the judge would
consider his missing [fitness] reports ‘in a light most favorable’ to the Appel-
lant.” Before this court, Appellant argues his performance reports for the en-
tirety of his service in the USMC were seemingly lost through no fault of the
Appellant and the reports showed three combat service deployments and no
indication of any misconduct. Appellant argues he had only one letter of coun-
seling while in the Air Force and only ED provided a victim impact statement
which asked for him to be trained to behave politely to housekeepers and other
women.
The Government points out that the personal data sheet admitted at trial
shows Appellant’s prior service in the USMC, his multiple periods of combat
service, and the various awards and decorations he received as a Marine. The
Government notes that it was Appellant’s defense counsel who asked the mil-
itary judge to “consider that whatever performance reports he would have had
in the most favorable light to [Appellant].” The Government argues that later
in the trial, the trial counsel informed the military judge that Appellant would
not have received performance fitness reports until he reached the rank of Ser-
geant (E-5) and the Government had a document with “performance report
type information on it” that could be marked as an exhibit. Apparently, this
document, which was never attached to the record of trial, showed “average
marks in service” at least to the point where Appellant reached the rank of E-
5. After further discussion off the record between counsel for both sides, the
trial counsel and defense counsel told the military judge they had agreed to
leave the issue of Appellant’s performance reports as “status quo as it is.”
We granted Appellant’s motion to attach a declaration regarding his USMC
service. Appellant declares that he served nine years in the USMC and ob-
tained the rank of Sergeant. He received three annual fitness reports, two of
which “would have been average due to [his] newness in the field and one of
15
United States v. Rogers, No. ACM S32545
which an ‘above average’ report from his Colonel which included a comment
like ‘this Marine was able to accomplish task[s] that my previous two Family
Readiness Officers couldn’t.’” Appellant’s declaration mentions several other
duty-related accomplishments and concludes with “I lost my copy of my OMPF
[Official Military Personnel File] when my house flooded right before I sepa-
rated from service.” Appellant then claims “[t]here should have been no reason
why the prosecution could not have obtained copies of my OMPF, which would
include my fitness reports.”
2. Law
We review issues of sentence appropriateness de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006) (citing United States v. Cole, 31 M.J. 270,
272 (C.M.A. 1990)). We may affirm only as much of the sentence as we find
correct in law and fact and determine should be approved on the basis of the
entire record. Article 66(c), UCMJ, 10 U.S.C. § 866(c). “We assess sentence ap-
propriateness by considering the particular appellant, the nature and serious-
ness of the offense[s], the appellant’s record of service, and all matters con-
tained in the record of trial.” United States v. Sauk, 74 M.J. 594, 606 (A.F. Ct.
Crim. App. 2015) (alteration in original) (citing United States v. Anderson, 67
M.J. 703, 705 (A.F. Ct. Crim. App. 2009)). Although we have great discretion
to determine whether a sentence is appropriate, we have no authority to grant
mercy. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010) (citation omit-
ted).
3. Analysis
Appellant was convicted of two specifications of indecent conduct and the
maximum sentence he faced was the jurisdictional maximum of a special court-
martial: a bad-conduct discharge, confinement for 12 months, forfeiture of two-
thirds pay per month for 12 months, and reduction to the grade of E-1. The
offenses were committed on-base, while Appellant was wearing part of his mil-
itary uniform, and the victims were two female, long-time, civilian employees
of the March Inn. The offenses were committed days apart from each other.
After considering all the circumstances presented in the evidence, we charac-
terize Appellant’s behavior as deeply disturbing and worthy of the serious pun-
ishment of a bad-conduct discharge.
Additionally, we considered Appellant’s prior service, combat service, and
honorable discharge from the USMC all of which were available to the military
judge prior to sentencing. We acknowledge we do not have Appellant’s fitness
reports that he would have received as a Sergeant in the USMC, but their ab-
sence from the record does not warrant sentence relief.
First, we see nothing in Rule for Courts-Martial (R.C.M.) 1001(b)(2) that
required the Government to admit fitness performance reports from a different
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United States v. Rogers, No. ACM S32545
service, after a break in service, in an Air Force court-martial. R.C.M.
1001(b)(2) uses the words “[u]nder regulations of the Secretary concerned, trial
counsel may obtain and introduce from the personnel records of the accused
. . . evidence of character of prior service.” Neither side has pointed to an Air
Force Instruction that required the Air Force to incorporate Appellant’s USMC
fitness reports into his Air Force personnel records. Appellant’s comment in
his declaration that “[t]here should have been no reason why the prosecution
could not have obtained copies” is misplaced. By itself, R.C.M. 1001(b)(2) im-
posed no requirement on the Prosecution to introduce anything from his USMC
records, unless those records were incorporated into his Air Force personnel
records. Appellant has not attempted to show that Air Force recruiting instruc-
tions or Air Force personnel instructions imposed such requirements. To be
clear, we applaud the Government’s efforts to obtain these records and provide
them to trial defense counsel. Such efforts contribute to the perceived fairness
of the military justice system, especially if an accused has no records of the
prior service and encounters bureaucratic hurdles in attempting to gather such
documents for possible presentation in mitigation under R.C.M. 1001(c)(1)(B).
This does not mean there was error committed under a different rule, R.C.M.
1001(b)(2).
Second, even if we accept everything in Appellant’s declaration as accurate
regarding his USMC service, we still find a bad-conduct discharge is not inap-
propriately severe. Appellant deserves notable credit for his prior combat ser-
vice in Djibouti and Afghanistan. But, the record of trial already contained this
information and it was properly before the military judge. Appellant’s declara-
tion adds no further notable details on his combat service. The other areas in
Appellant’s declaration elaborate on duty-related performance which were well
covered by the other mitigating evidence contained in the record of trial.
Finally, it was Appellant’s trial defense counsel who suggested that the
military judge could consider “that whatever performance reports he would
have had in the most favorable possible light to Appellant.” We have no doubt
the military judge considered the missing reports in “a light most favorable” to
Appellant and still determined a bad-conduct discharge was appropriate. Ap-
pellant’s declaration actually paints a less glowing picture of his USMC service
than the “light most favorable” approach the military judge used. Whether we
consider Appellant’s declaration regarding his prior service, the military
judge’s “light most favorable” approach, or both, we still do not find the bad-
conduct discharge to be inappropriately severe, and this court has no authority
to engage in clemency. See Nerad, 69 M.J. at 146.
In our view, the military judge exercised leniency elsewhere by adjudging
six days of confinement when the Government argued for “lengthy confine-
ment” measured in a “number of months.” We also can see that the military
17
United States v. Rogers, No. ACM S32545
judge exercised leniency towards Appellant in adjudging only a reduction to
the grade of E-3, when the Government argued a reduction to the grade of E-1
was appropriate.
Having given individualized consideration to Appellant, the nature and se-
riousness of the offenses, Appellant’s record of service both in the Air Force
and the USMC, including his combat service, and all other matters contained
in the record of trial, we conclude that the sentence is not inappropriately se-
vere.
III. CONCLUSION
Specification 2 of Charge I is amended by striking the words “on or about”
prior to the date of 6 February 2017. 13 The approved findings, as modified, and
sentence are correct in law and fact, and no error materially prejudicial to the
substantial rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ, 10
U.S.C. §§ 859(a), 866(c). Accordingly, the findings and sentence are AF-
FIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
13We direct a new court-martial order reflecting our decision. Additionally, the new
court-martial order will correct an error in the Specification of Charge II, by including
language that was omitted in the current court-martial order that was a part of the
court’s finding of not guilty. The missing language includes the words “who knew or
should have known that [MB] would be placed in reasonable fear of bodily harm to
herself.”
18