United States v. Parsons

U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
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No. 201700159
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UNITED STATES OF AMERICA
Appellee
v.
GABRIEL G. PARSONS
Hospital Corpsman Third Class (E-4), U.S. Navy
Appellant
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Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Captain Robert J. Crow, JAGC, USN.
Convening Authority: Commanding Officer, Naval Hospital,
Jacksonville, FL.
Staff Judge Advocate’s Recommendation: Lieutenant Nadine N.
Jenkins, JAGC, USN.
For Appellant: Lieutenant Colonel Lee C. Kindlon, USMCR.
For Appellee: Lieutenant Commander Brian C. Burgtorf, JAGC,
USN; Major Kelli A. O’Neil, USMC.
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Decided 24 October 2017
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Before, M ARKS , J ONES , and W OODARD , Appellate Military Judges
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This opinion does not serve as binding precedent but may be cited as
persuasive authority under NMCCA Rule of Practice and Procedure
18.2.
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PER CURIAM:
A military judge sitting as a special court-martial convicted the appellant,
pursuant to his pleas, of one specification each of assault with a loaded
firearm, assault consummated by a battery, and child endangerment in
violation of Articles 128 and 134, Uniform Code of Military Justice (UCMJ),
10 U.S.C. §§ 928 and 934. The military judge sentenced the appellant to a
United States v. Parsons, No. 201700159
bad-conduct discharge, confinement for 12 months, and reduction to the pay
grade of E-1. Pursuant to a pretrial agreement, the convening authority (CA)
approved the sentence as adjudged but suspended all confinement in excess
of 10 months and, except for the bad-conduct discharge, ordered the sentence
executed.1
In his sole assignment of error, the appellant contends that his adjudged
sentence is inappropriately severe given the nature and seriousness of the
offenses and his character of service.
After careful consideration of the record of trial and the pleadings of the
parties, we conclude the findings and the sentence are correct in law and fact,
and no error materially prejudicial to the substantial rights of the appellant
occurred. Arts. 59(a) and 66(c), UCMJ.
I. BACKGROUND
In July 2016, the appellant began to suspect that his wife of six years was
having an affair with one of his friends—a fellow Sailor. The appellant
confronted his wife and friend about his suspicions. Both denied the affair.
The following month, the appellant’s wife confided in him that she and
the appellant’s friend had engaged in sexual intercourse. The appellant
responded by repeatedly punching his wife in the arm. Wanting to know more
about the affair, he pressed his wife for details about the relationship. When
his wife refused to answer his questions, he retrieved his loaded pistol from
their bedroom, stood over his seated wife, pointed the loaded pistol at her
head, and demanded she tell him everything about the affair. He did this in
front of their three-year-old son, who was crying and begging them to stop
fighting.
After learning of the appellant’s misconduct through the Family Advocacy
Program, the appellant’s command issued a Military Protective Order (MPO)
which prohibited the appellant from contacting or communicating with his
wife and their son. On 8 January 2017, the appellant violated the MPO, for
which he was later punished at nonjudicial punishment.2
1 As a matter of clemency and in accordance with Article 58b(b), UCMJ, the CA
deferred the automatic forfeitures from the date they would have become effective
until the date of the CA’s action.
2 The nonjudicial punishment proceedings documentation and MPO were later
admitted, without objection from the trial defense counsel, as aggravation evidence.
Record at 64-65.
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II. DISCUSSION
A. Sentence appropriateness
The appellant argues that when considering the nature and seriousness of
his offenses, his previous honorable service, good military character, and his
lack of any prior disciplinary problems, his adjudged sentence is
inappropriately severe, warranting relief pursuant to Article 66, UCMJ. We
disagree.
We review sentence appropriateness de novo. United States v. Lane, 64
M.J. 1, 2 (C.A.A.F. 2006). This court “may affirm only . . . the sentence or
such part or amount of the sentence, as it . . . determines, on the basis of the
entire record, should be approved.” Art. 66(c), UCMJ. “Sentence
appropriateness involves the judicial function of assuring justice is done and
that the accused gets the punishment he deserves.” United States v. Healy, 26
M.J. 395, 395 (C.M.A. 1988). Assessing sentence appropriateness requires
“individualized consideration of the particular accused on the basis of the
nature and seriousness of the offense and the character of the offender.”
United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (citation and
internal quotation marks omitted). Despite our significant discretion in
reviewing the appropriateness and severity of an adjudged sentence, we
cannot engage in acts of clemency. United States v. Nerad, 69 M.J. 138, 146
(C.A.A.F. 2010).
At the time the appellant learned of his wife’s affair, he had 81/2 years of
honorable service to his credit. Included in his honorable service were three
deployments (including one combat tour) and numerous awards, accolades,
and positive evaluation reports. However, his conduct and character of
service from that point forward is significantly marred by the misconduct for
which he was convicted at trial. When assessing the nature and seriousness
of the appellant’s offenses, we note the violent and physically and mentally
injurious nature of his offenses; he held a loaded .45 caliber pistol to his
wife’s head after physically assaulting her—all in the presence of his crying
child.
Having given individualized consideration to the appellant, the nature
and seriousness of his offenses, his character, record of service, and all other
matters contained in the record of trial, we find that the jurisdictional
maximum sentence adjudged by the military judge was not inappropriately
severe. Under the circumstances of this case, we are convinced that justice
was done, and the appellant received the punishment he deserved. Healy, 26
M.J. at 395. To grant relief at this point would be to engage in an act of
clemency, a prerogative reserved for the CA. Id. at 395-96.
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United States v. Parsons, No. 201700159
B. Pretrial confinement credit
The appellant was in pretrial confinement from 2-7 December 2016. As a
result, the military judge ordered six days of pretrial confinement credit in
accordance with United States v. Allen, 17 M.J. 126 (C.M.A. 1984). Although
the report of results of trial accurately reflects the pretrial confinement credit
ordered by the military judge and is included as an enclosure to the staff
judge advocate’s recommendation (SJAR), the SJAR, on its face, incorrectly
reflects “zero days of applicable confinement credit.”3 The court-martial order
has no reference to confinement credit. The appellant does not assert, and we
do not find, prejudice resulting from the SJAR error. However, we order
corrective action in our decretal paragraph.
III. CONCLUSION
The findings of guilty and the sentence, as approved by the CA, are
affirmed. The supplemental court-martial order shall reflect that the
appellant is credited with six days of pretrial confinement credit.
For the Court
R.H. TROIDL
Clerk of Court
3 SJAR of 12 Apr 2017 at 1.
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