United States v. McDonald

U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
_________________________
No. 201700172
_________________________
UNITED STATES
Appellee
v.
Chester N. MCDONALD
Information Systems Technician
Chief Petty Officer (E-7), U.S. Navy
Appellant
_________________________
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges:
Commander Arthur Gaston, JAGC, USN (arraignment);
Lieutenant Colonel Leon Francis, USMC (trial).
For Appellant: Captain Thomas Fricton, USMC.
For Appellee: Captain Brian Farrell, USMC;
Lieutenant Clayton McCarl, JAGC, USN.
_________________________
Decided 7 December 2018
_________________________
Before HUTCHISON, TANG, and LAWRENCE,
Appellate Military Judges
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PUBLISHED OPINION OF THE COURT
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TANG, Judge:
A military judge sitting as a general court-martial convicted the appel-
lant, pursuant to his pleas, of a single specification of sexual assault of a
child, 12 specifications of sexual abuse of a child, and a single specification of
indecent visual recording in violation of Articles 120b and 120c, Uniform
United States v. McDonald, No. 201700172
Code of Military Justice (UCMJ), 10 U.S.C. §§ 920b and 920c (2012). A panel
of members, including enlisted members, sentenced the appellant to 30 years’
confinement, reduction to pay grade E-1, total forfeiture of all pay and allow-
ances, and a dishonorable discharge. The convening authority approved the
sentence as adjudged.
The appellant raises six assignments of error (AOEs): (1) the appellant’s
plea to Charge II is improvident because he did not make a visual recording
of the victim’s “private area” within the meaning of Article 120c, UCMJ;
(2) Charge I, Specification 9 is multiplicious with Charge I, Specification 13
because the two specifications share the same factual basis; 1 (3) Charge I,
Specifications 6, 7, 8, 9, and 13 constitute an unreasonable multiplication of
charges (UMC); (4) the promulgating order does not accurately reflect that
the military judge merged Specifications 2, 3, 4, 9, 10, and 11 of Charge I for
sentencing and conditionally dismissed Specification 5; (5) the trial counsel
made an improper sentencing argument; 2 and (6) the military judge aban-
doned his position of impartiality.
We find merit in the appellant’s fourth AOE and order corrective action in
our decretal paragraph. The appellant is entitled to accurate court-martial
records. United States v. Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App.
1998). Following our corrective action, we find that no error materially preju-
dicial to the substantial rights of the appellant remains. Arts. 59(a) and 66(c),
UCMJ.
I. BACKGROUND
A. The appellant’s misconduct and plea
The appellant met his wife, JM, in 2007 and the couple married in 2010.
JM had two daughters from a previous relationship, CM being the oldest. CM
was four years old when her mother began dating the appellant.
The appellant raised his stepdaughters as his own children. CM viewed
the appellant as her father, and the two shared a close relationship.
1 The appellant was originally charged with eighteen specifications under Charge
I, alleging violations of Article 120b, UCMJ, and a sole Specification under Charge II,
alleging a violation of Article 120c, UCMJ. As specifications were withdrawn, dis-
missed, and consolidated, the military judge renumbered them. We will refer to the
numbering scheme reflected on the charge sheet at the time of the appellant’s pleas.
2 AOEs 5 and 6 were raised pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982).
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United States v. McDonald, No. 201700172
In December 2014, the appellant was stationed in South Korea, serving a
one-year unaccompanied tour while JM and his stepdaughters were in Ha-
waii. From late December 2014 to January 2015, the appellant returned to
Hawaii on leave. By then, CM was 11 years old, and she celebrated her 12th
birthday during his visit. It was during this holiday leave period that the ap-
pellant first sexually abused CM.
Twice during his holiday leave in Hawaii, the appellant sexually abused
CM. On the first occasion, the appellant got into bed with CM, and, while ly-
ing next to her, began touching her buttocks with his hands while kissing her
neck and back. This sexual abuse continued for “about a minute,” until the
appellant grew “ashamed,” ceased, and promised to take CM shopping the
next day. 3 On another occasion during this holiday leave period, the appel-
lant went to CM’s room to wake her up. While CM was lying in her bed in pa-
jamas, the appellant began tickling and blowing on her stomach to wake her
up. The appellant escalated from “tickling” to moving his hands and mouth to
her “crotch area,” at which point he “spread her legs,” “touched and tickled
her genitalia,” then used his mouth to bite her vagina. 4 During both instanc-
es, the appellant was aroused. At that time, CM did not tell anyone what the
appellant did to her, nor did she talk to the appellant about the two encoun-
ters.
A few months after the appellant returned to Korea, CM became suicidal.
She attempted suicide by cutting herself with scissors and was hospitalized
for two and a half weeks. CM stated she became suicidal because of “family
issues,” a lack of attention, and bullying in school, but that she had sup-
pressed her thoughts of the sexual abuse the appellant had committed upon
her, “push[ing] it so far down, [she] didn’t think of it anymore.” 5 Desperate
for a change that would help, CM acquiesced to her family’s and doctor’s sug-
gestion that she travel to Korea with the appellant to live with him through
the remainder of his tour, which was set to end in July 2015.
In May 2015, CM travelled to Korea to live with the appellant in his off-
base apartment. Although it was a two-bedroom apartment with two beds,
the appellant required that CM sleep in his bed. CM stayed home while he
worked, and the two spent time together after the appellant finished work
and on the weekends.
3Record at 43. This conduct formed the basis of Charge I, Specifications 2 and 3.
The military judge merged these specifications after findings.
4 Id. at 51.
5 Id. at 376.
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United States v. McDonald, No. 201700172
The appellant stated that he was sexually attracted to CM, admitting
that she “reminded [him] of a younger version of [his] wife.” 6 He began to
sexually abuse CM, as he had previously done in Hawaii. Because CM lived
alone with him, he had a greater opportunity to abuse her more severely and
with greater frequency. During his providence inquiry, the appellant de-
scribed an ongoing course of conduct in which he would touch CM in bed at
night many times during the two months she lived with him in Korea. He al-
so described two discrete events with multiple distinct acts of sexual abuse.
1. Ongoing course of conduct
In describing the ongoing course of conduct, the appellant stated he began
sexually abusing CM a few weeks after she arrived and continued to do so
until they returned to Hawaii. He stated he would lay in bed with CM at
night and touch her body. He touched her buttocks, thighs, breasts and
rubbed his groin against her buttocks. He used his mouth to touch her
breasts and vagina, “putting his mouth on her genitalia on the top of her un-
derwear . . . as if [he] was going to bite and lick it.” 7 He stated many nights
were similar, but they were not exactly the same. Some nights he would
touch certain parts of her body but not others. 8
2. June 2015 abuse before volleyball game
Separate from the nighttime sexual abuse, the appellant described a spe-
cific afternoon in the first week of June 2015 that was distinct from the ongo-
ing course of conduct. This unique occasion was particularly memorable to
the appellant and encompassed the offenses alleged in Specifications 1, 9, 10,
11, and 12 of Charge I. This was the sole occasion on which the appellant dig-
itally penetrated CM’s vagina. The appellant was “cuddling” CM in bed one
afternoon during the first week of June 2015. 9 They were in bed mid-day to
rest for a volleyball game later that night. While the appellant lay with CM
in a spooning position, he became aroused. He rubbed her “crotch” and
breasts, placed his mouth on her breasts, and digitally penetrated CM’s vagi-
na. 10 During this same episode, the appellant admitted he had an erection
6 Id. at 32.
7 Id. at 62.
8The appellant asserted he only contacted CM’s vagina and breasts with his
mouth twice in Korea. Id. at 58-60.
9 Id. at 76.
10 Id. at 32.
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United States v. McDonald, No. 201700172
and that he used his erect penis to touch CM’s thighs and buttocks multiple
times during this encounter. 11 During this episode, the appellant also exposed
his bare erect penis to CM, then covered it with his shorts and grabbed and
held his erect penis through his clothes in her presence.
3. The appellant washed CM
In the second discrete event, the appellant washed CM’s body in the
shower when her leg was in a brace due to a sports injury. Although CM re-
quired his assistance to undress and requested help to wash her back, the
appellant became aroused when he saw her naked body and proceeded to
wash her breasts, buttocks, and vagina, with a loofah sponge, in order to
gratify his sexual desires. These acts formed the basis of Specification 5 of
Charge I.
4. The appellant secretly photographed CM in her sleep
Aside from touching CM, the appellant secretly photographed CM while
she was sleeping. He used his cellular phone to take photographs of CM
sleeping in pajama shorts and underwear with a zoomed-in focus on her pubic
region. Three photographs depict her underwear-clad genitalia through the
loose opening of her pajama shorts. Others depict her underwear-clad and
bare buttocks. After the appellant and CM returned to Hawaii, JM borrowed
the appellant’s phone to take pictures. While looking through the deleted
folder to ensure she wasn’t losing any desired pictures, JM discovered deleted
photographs the appellant had taken of CM in her sleep. JM angrily con-
fronted the appellant, who claimed he took the pictures as a “joke.” 12 JM de-
manded the appellant tell CM he took the photos, and the appellant complied
with this demand. After learning the appellant secretly photographed her
body while she was asleep, CM became upset and immediately took a shower.
The next day, once CM and JM were out of the house and away from the ap-
pellant, CM told JM the appellant sexually abused her.
11 Id. at 71-72. The appellant clarified that the conduct that underlies Specifica-
tions 1 (digital penetration of CM’s vagina) and 9 (touching CM’s thighs and buttocks
with his penis) of Charge I took place during the same encounter.
12 Id. at 415.
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B. Pre-sentencing proceedings
1. Government’s case
During pre-sentencing proceedings, the government presented the testi-
mony of four witnesses: CM, JM, the Naval Criminal Investigative Service
(NCIS) investigator who interviewed the appellant—Special Agent BB, and a
licensed clinical psychologist who was an expert in victim trauma—Dr. MM.
CM’s testimony was emotional and powerful. She began crying as soon as
she was asked about living in Korea, and she asked for a break soon after
discussing that topic. She sobbed several times throughout her testimony and
hyperventilated. She testified the appellant abused her nightly in Korea. CM
described how she repeated her suicide attempts after disclosing the abuse to
her mother. CM said she thinks about the abuse every day, has trouble sleep-
ing and eating, remains in therapy, and has been diagnosed with post-
traumatic stress disorder (PTSD), depression, and anxiety. When asked if
there was “anything else” she wanted the members to know, she angrily con-
fronted the appellant directly, eliciting an objection from trial defense coun-
sel, which the military judge sustained.
Dr. MM did not evaluate CM, nor did she offer a specific diagnosis of CM.
Rather, she detailed common short- and long-term effects of child sexual
abuse. Dr. MM described the effects as “devastating,” typically life-long, and
encompassing many facets of life—especially when perpetrated by a trusted
caregiver. 13
In addition to testimony, the government offered Prosecution Exhibit (PE)
3, which consisted of 15 photographs the appellant took of CM, as evidence in
aggravation. JM testified she recognized the photographs as the same photo-
graphs she found on the appellant’s cellular phone.
2. The appellant’s case
The appellant presented the expert testimony of Dr. RK, a clinical psy-
chologist who related the results of an evaluation she performed on the appel-
lant. Dr. RK testified that the appellant had excellent rehabilitative potential
and presented a low risk of recidivism. The trial defense counsel also elicited
testimony tending to contradict Dr. MM’s testimony and supporting the prop-
osition that not all child sex abuse victims will suffer long-term effects of
abuse, and that their response is individualized.
13 Id. at 430-34.
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United States v. McDonald, No. 201700172
Following government and defense questioning of Dr. RK, the military
judge asked Dr. RK questions about CM’s testimony and PTSD. The military
judge asked the psychologist to describe PTSD, its causes, impacts, levels of
severity, course of treatment, then he asked logical follow-up questions to
clarify the testimony. Dr. RK first brought up the distinction between acute
and chronic PTSD. The trial defense counsel did not object and did not ask
follow-up questions.
In his unsworn statement, the appellant stated, “I fully understand for
the rest of my life . . . I will be a sex offender, I will be a . . . child-abuser and
a child-sex offender. This is how the world will forever greet me. That will be
my title.” 14
3. Sentencing argument
During his sentencing argument, the trial counsel used the term “child
molester” to refer to the appellant. He further argued the appellant would
have likely committed more serious misconduct with CM if he had not been
caught and that the appellant was likely to re-offend. The trial defense coun-
sel objected to the trial counsel’s argument that the appellant was grooming
CM’s younger sister for sexual abuse. The military judge sustained the objec-
tion and provided a curative instruction.
II. DISCUSSION
A. Providency of the appellant’s plea
Before accepting a guilty plea, a military judge must ensure the plea is
supported by a factual basis. Article 45(a), UCMJ; United States v. Care, 40
C.M.R. 247 (C.M.A. 1969); RULE FOR COURTS-MARTIAL (R.C.M.) 910(e), MAN-
UAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.). The military judge
must elicit sufficient facts to satisfy every element of the offense in question,
and a military judge’s decision to accept a plea of guilty is reviewed for an
abuse of discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F.
2008) (internal citation omitted). Questions of law arising from the guilty
plea are reviewed de novo. Id. (citing United States v. Pena, 64 M.J. 259
(C.A.A.F. 2007)). A reviewing appellate court may only reject a guilty plea if
there is a substantial basis in law or fact to question the plea. Id. (citing
United States v. Prater, 32 M.J. 433 (C.M.A. 1991)). The military judge must
14 Id. at 538.
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United States v. McDonald, No. 201700172
reopen the providence inquiry if the evidence is inconsistent with the guilty
plea. See United States v. Lloyd, 46 M.J. 19, 23 (C.A.A.F. 1997).
In the sole specification under Charge II, the appellant pleaded guilty to
indecent visual recording, which criminalizes wrongfully and knowingly pho-
tographing the private area of another person without that person’s consent
and under circumstances in which that person has a reasonable expectation
of privacy. Article 120c(a)(2), UCMJ.
The appellant contends that his plea is improvident because the 15 pic-
tures in PE 3 do not depict CM’s “private area” as that term is defined in the
statute. Article 120c defines “private area” as the naked or underwear-clad
genitalia, anus, buttocks, or female areola or nipple. Art. 120c(d)(2), UCMJ.
In the 15 photographs, CM is asleep and clothed in either shorts or pajamas.
In several photographs, CM’s pajama shorts are pulled to the side, revealing
her underwear. But because these pictures show CM wearing more than just
underwear, the appellant argues that the evidence is inconsistent with his
guilty plea and the military judge abused his discretion in failing to reopen
the providence inquiry or to enter a plea of not guilty. We disagree.
The military judge properly described the elements of the offense and
properly defined “private area.” He then emphasized the legal distinction be-
tween underwear and shorts within the context of the definition of “private
area,” and repeated the definition of “private area.” 15 Following this ex-
change, the appellant agreed he photographed CM’s underwear-clad exposed
crotch area. 16 The appellant told the military judge he “took several photo-
graphs” of CM “while she was asleep” with her legs open, with her crotch area
exposed. He stated “[t]he photographs showed her private area, specifically
her underwear and . . . pajamas, and crotch area.” 17 The appellant admitted
he took photographs of CM with her “legs spread open, wearing under-
wear.” 18 The appellant also admitted he took “several” photographs of CM in
this manner, on two or three different occasions. 19 He did not state an exact
number of photographs that depicted CM’s “private area,” nor does the speci-
fication allege a specific number. Knowing his actions were wrongful, he de-
15 We are not called upon to decide whether shorts, when worn as underwear,
could constitute underwear within the context of the definition of “private area.”
16 Id. at 97.
17 Id. at 95.
18 Id. at 99.
19 Id. at 95, 99.
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United States v. McDonald, No. 201700172
leted the photographs. The appellant admitted he “reviewed the photographs
in the NCIS investigation” and confirmed he took the photographs. 20
In United States v. Broce, the Supreme Court characterized a guilty plea
as “more than a confession which admits that the accused did various acts”
but rather an “admission that he committed the crime charged against him.”
488 U.S. 563, 570 (1989) (internal citations omitted). By pleading guilty, the
appellant admitted the photographs he took of CM met the definition of “pri-
vate area” and that his actions constituted the offense of indecent visual re-
cording under Article 120c(a)(2), UCMJ. We find no substantial basis in law
or fact to question the appellant’s plea.
1. The definition of “private area” does not require that the victim be com-
pletely naked or clad only in underwear
The appellant argues that the term “underwear-clad” should be read as
“covered in underwear and nothing else.” 21 From this it follows, according to
the appellant, that the statute “contemplates an individual in the nude or
wearing underwear and only underwear.” 22 At a minimum, the appellant ar-
gues, the statute requires a photographic recording of “an unobstructed im-
age of the underwear-clad genitals, for instance when a picture is taken up a
woman’s dress without her knowledge.” 23 The appellant claims that the pic-
tures introduced by the government in aggravation do not depict CM’s pri-
vate area as that term is defined in the statute because CM is depicted in pa-
jama shorts, and the pictures show only a small portion of CM’s underwear.
We hold, however, that the definition of “private area” is satisfied if the visu-
al recording depicts any portion of the subject’s genitalia or other listed body
part covered only by underwear—even if the subject is wearing clothing in
addition to underwear.
This assignment of error presents a straightforward question of statutory
interpretation. “It is axiomatic that when a statute is clear and unambiguous,
the plain meaning controls.” United States v. Quick, 74 M.J. 517, 520 (N-M.
20Id. at 95. There was no evidence adduced that PE 3 contained all photographs
that were “in the NCIS investigation” or all photographs that were recovered from
the appellant’s cellular phone. The only foundation for PE 3 came from JM’s testimo-
ny confirming PE 3 contains the photographs she found in the deleted folder on the
appellant’s cellular phone.
21 Appellant’s Brief of 7 Nov 2017 at 15.
22 Id.
23 Id.
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United States v. McDonald, No. 201700172
Ct. Crim. App. 2014). And here the statute is plain: if the photograph shows
the genitalia, anus, buttocks, or female areola or nipple, in whole or in part,
and the sole layer of clothing between the skin and the camera consists of the
underwear, the photograph depicts the victim’s “private area” within the
meaning of Article 120c. The statute concerns itself not with what articles of
clothing the person is wearing, but what, if anything, is covering the genita-
lia, anus, buttocks, or female areola or nipple in the photograph. Thus, we
hold that even though CM was wearing pajama shorts with underwear un-
derneath and next to her skin in the photographs, the appellant’s guilty plea
was provident as he photographed one of these listed body parts while it was
covered only by underwear.
The appellant posits that an interpretation of the statute that includes
photographs depicting subjects wearing clothing in addition to underwear
could lead to “absurd results” such as criminalizing photos depicting a bra
strap or “underwear visible over the top of the pants.” 24 We disagree, as the
definition of private area focuses on the part of the body depicted, and only
depictions of “genitalia, anus, buttocks, or female areola or nipple” meet that
definition. Art. 102c(d)(2), UCMJ. Here, we find there is ample evidence the
appellant photographed both the underwear-clad genitalia, underwear-clad
buttocks, and bare buttocks of CM on multiple occasions.
2. Photographs depict CM’s underwear-clad genitalia, underwear-clad but-
tocks, and bare buttocks
The Attorney’s Dictionary of Medicine defines genitalia as “[t]he genital
or reproductive organs, especially the external organs as distinguished from
those inside the body,” and specifically lists the female genitalia as including
“the mons veneris, clitoris, vagina, the labia majora and minora, etc.” 25
In PE 3, the government submitted 15 color photographs the appellant
took of CM while she was sleeping. Photographs 2, 3, and 7 focus on CM’s
crotch area, wherein her pajama shorts are pulled to the side, revealing her
underwear covering a portion of her labia majora. Because the photographs
depict portions of CM’s genitalia, clad only by underwear, they depict CM’s
“private area.”
24 Id. at 15.
Genitalia, J.E. SCHMIDT, M.D., ATTORNEY’S DICTIONARY OF MEDICINE AND
25
WORD FINDER (Release No. 52 Sep. 2018).
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United States v. McDonald, No. 201700172
Even if the definition of “private area” were limited in the manner the ap-
pellant claims, the appellant also took photographs of CM’s underwear-clad
and bare buttocks. See PE 3 at 1, 5, 9, and 10.
3. Even if some photos within PE 3 do not depict CM’s “private area,” the
government’s evidence in aggravation is not inconsistent with the appellant’s
plea
Although some photographs in PE 3 do not depict CM’s “private areas,”
this does not constitute an inconsistency with the appellant’s guilty plea. 26 To
the extent the remaining photos in PE 3 do not depict CM’s “private areas,”
they were admitted without defense objection and constitute permissible evi-
dence in aggravation. No evidence in the record establishes the 15 photo-
graphs in PE 3 are the only photographs the appellant took of CM. The appel-
lant, represented by competent trial defense counsel, after being read the def-
inition of the term “private area,” freely admitted he photographed CM’s pri-
vate area and committed the offense of indecent visual recording. We find no
reason to question the providence of the appellant’s plea and find no evidence
the military judge abused his discretion in accepting the appellant’s plea.
B. Multiplicity
The appellant alleges Specifications 9 and 13 of Charge I are multi-
plicious because “both address identical criminal conduct.” 27
Specification 9 alleges the appellant committed a single lewd act upon CM
by touching her thigh and buttocks with his penis. 28 Specification 13 alleges
the appellant committed lewd acts upon CM on divers occasions by rubbing
his groin against her buttocks. 29 Both Specifications 9 and 13 allege the mis-
conduct occurred in South Korea between on or about June 2015 and on or
about July 2015.
The appellant entered an unconditional plea of guilty to both specifica-
tions and did not raise this objection at trial. 30 Nevertheless, the appellant is
26 See PE 3 at 14 and 15. These photographs were taken by the appellant while
lying in bed next to CM.
27 Appellant’s Brief at 20.
28 Charge Sheet (Emphasis added).
29 Id. (Emphasis added).
30 Though the military judge and counsel discussed issues of unreasonable multi-
plication of charges relating to various specifications, trial defense counsel never ob-
jected to any specifications based on multiplicity.
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United States v. McDonald, No. 201700172
entitled to a review for plain error in spite of the failure to object because
“concerns about multiple convictions and punishments at a single trial stem
from the Double Jeopardy Clause of the Fifth Amendment and, therefore, are
constitutional in nature.” Lloyd, 46 M.J. at 22. An unconditional guilty plea
“waives a multiplicity issue unless the offenses are ‘facially duplicative,’”
which means “factually the same.” Id. at 23; United States v. Campbell, 68
M.J. 217, 219-20 (C.A.A.F. 2009). Offenses are not facially duplicative “if each
requires proof of a fact which the other does not.” United States v. Pauling, 60
M.J. 91, 94-95 (C.A.A.F. 2004) (internal quotation marks and citations omit-
ted). We conduct “a realistic comparison of the two offenses to determine
whether one is rationally derivative of the other,” looking to the specification
as drafted and the military judge’s providence inquiry. Id. (internal citation
omitted). Whether specifications are facially duplicative is a question of law
reviewed de novo. Id.
In conducting this “realistic comparison,” we conclude the specifications
are not facially duplicative because the acts are different and occurred on dif-
ferent days. Id. For Specification 9, the government had to prove the appel-
lant’s penis touched CM on her thigh and buttocks. For Specification 13, the
government had to prove his groin contacted her buttocks.
The appellant claims “groin” and “penis” are synonyms. 31 We disagree.
The Attorney’s Dictionary of Medicine defines “groin” as “[t]he groove, and
the part of the body around it, formed by the junction of the thigh with the
abdomen, on either side.” 32 That same dictionary defines “genitalia” as “[t]he
reproductive organs, especially the external organs as distinguished from
those inside the body.” 33 For male genitalia, the dictionary lists “the penis,
the scrotum, and the testicles.” 34 It is possible for the appellant to touch CM
with his genitalia—including his penis—but not his groin, and vice versa.
There is a distinction between rubbing one’s penis onto a child and rub-
bing one’s groin area onto a child. The distinction is one of common sense,
which is also grounded in Article 120, UCMJ. In the Article 120(g)(2)(A),
UCMJ, definition of “sexual contact,” Congress distinguished between the
groin and genitalia by listing them separately. “The term ‘sexual contact’
means . . . touching . . . the genitalia, . . . groin . . . of any person” with the
31 Appellant’s Brief at 22.
32Groin, J.E. SCHMIDT, M.D., ATTORNEY’S DICTIONARY OF MEDICINE AND WORD
FINDER (Release No. 52 Sep. 2018).
33 Genitalia, ATTORNEY’S DICTIONARY OF MEDICINE AND WORD FINDER.
34 Id.
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United States v. McDonald, No. 201700172
requisite intent.” Id. Additionally, while Article 120c, UCMJ, criminalizes the
intentional exposure, in an indecent manner, of the genitalia, it does not
criminalize the exposure of the groin.
In sum, there is a factual distinction between the acts supporting Specifi-
cations 9 and 13, and there is a legal distinction between contact with genita-
lia and the groin. The appellant described Specification 9 as occurring on a
different occasion than the acts that support Specification 13. During the
providence inquiry for Specification 13, the appellant stated he rubbed his
groin against CM’s buttocks on multiple occasions that were different from
the occasions he previously described in the military judge’s inquiry about
Specifications 1-12 of Charge I. 35 No single act was punished twice and there-
fore the appellant’s argument is without merit.
C. Unreasonable multiplication of charges
The appellant avers Specifications 6, 7, 8, 9, and 13 of Charge I constitute
an unreasonable multiplication of charges (UMC) because they all allege lewd
acts committed upon CM by the appellant in his bed in South Korea, during
the two-month time period from about June 2015 to about July 2015. The
specifications allege the following acts:
6: Touching CM’s breasts with the appellant’s hands and mouth on divers
occasions;
7: Touching CM’s genitalia with the appellant’s hands and mouth on di-
vers occasions;
8: Touching CM’s buttocks with the appellant’s hands on divers occasions;
9: Touching CM’s thigh and buttocks with the appellant’s penis; and
13: Rubbing the appellant’s groin against CM’s buttocks on divers occa-
sions.
After the providence inquiry, but before informing the appellant of the
maximum punishment, the military judge sua sponte addressed the issue of
UMC. Trial defense counsel requested merger of Specifications 5, 6, 7, and 8;
merger of Specification 2 and 3; and merger of Specifications 1, 9, 10, 11, and
12. The military judge merged Specifications 2 and 3 into a single new speci-
fication and also conditionally dismissed Specification 5 without prejudice,
pending appellate review. Because the trial counsel objected to further mer-
35 See Record at 90.
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United States v. McDonald, No. 201700172
ger of specifications, the military judge deferred further UMC analysis until
after presentencing proceedings.
Following the admission of presentencing evidence, the military judge re-
addressed the issue of maximum punishment and UMC. Although the trial
defense counsel previously objected that Specifications 6, 7, and 8 constituted
UMC, he explicitly waived this objection after presentencing evidence was
admitted. 36 The trial defense counsel maintained his objection to Specifica-
tions 9, 10, 11, and 12. The military judge merged Specification 10 into Speci-
fications 7 and 8, and merged Specifications 11 and 12 into Specification 1.
The appellant never objected to UMC as relates to Specification 13.
As a function of our mandate under Article 66, UCMJ, and because some
UMC objections were preserved, we will evaluate whether the challenged
specifications constitute UMC.
1. The legal standard
In United States v. Campbell, the Court of Appeals for the Armed Forces
(CAAF) clarified the doctrines of multiplicity and unreasonable multiplica-
tion of charges. 71 M.J. 19 (2012). The CAAF reaffirmed the test outlined in
United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001), for evaluating an un-
reasonable multiplication of charges.
The Quiroz factors are:
(1) Did the accused object at trial that there was an unrea-
sonable multiplication of charges and/or specifications?
(2) Is each charge and specification aimed at distinctly sep-
arate criminal acts?
(3) Does the number of charges and specifications misrep-
resent or exaggerate the appellant’s criminality?
(4) Does the number of charges and specifications unrea-
sonably increase the appellant’s punitive exposure?
(5) Is there any evidence of prosecutorial overreaching or
abuse in the drafting of the charges?
36 We find this is an intentional relinquishment of a known right, which consti-
tutes waiver vice forfeiture, as it relates to the merger of Specifications 6, 7, and 8.
See United States v. Hardy, 77 M.J. 438, 439 (C.A.A.F. 2018) (holding an uncondi-
tional guilty plea waives an unpreserved UMC objection). However, this waiver does
not extend to review of Specifications 6, 7, and 8 as constituting UMC in relation to
other specifications for which the objection was preserved.
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United States v. McDonald, No. 201700172
Campbell, 71 M.J. at 24 (citing Quiroz, 55 M.J. at 338) (listing Quiroz
factor 1 in footnote 10).
2. Application of Quiroz factors
The appellant argued that Specification 9 constituted UMC and should be
merged with Specifications 1, 10, 11, and 12. The appellant did not request
Specification 13 be merged with any other specification, and the appellant
affirmatively waived merging Specifications 6, 7, and 8 for sentencing. Quiroz
factor one weighs against the appellant.
Likewise, factor two weighs against the appellant. Each specification is
aimed at “distinctly separate” criminal acts. As we noted above, Specification
9, alleging the appellant touched CM’s thighs and buttocks with his penis on
a single occasion in the afternoon, was distinct from Specification 13, which
alleged that the appellant rubbed his groin against CM’s buttocks on divers
occasions while they slept in his bed at night. Likewise, Specifications 6, 7,
and 8 are distinct from each other and from Specifications 9 and 13 because
they each allege a different contact with CM’s body by various parts of the
appellant’s body, often on different days during the charged period.
The remaining Quiroz factors also weigh against the appellant. The num-
ber of charges and specifications does not misrepresent or exaggerate the ap-
pellant’s criminality. Specifications 6, 7, 8, and 13 pertain to the ongoing
course of conduct and charge the various types of contact, committed repeat-
edly over the course of two months. Specifications 1, 9, 10, 11, and 12 pertain
to a discrete instance of multiple sexual contacts the appellant committed in
June 2015 in the afternoon before a volleyball game. Because the military
judge merged Specifications 10, 11, and 12, this court need only analyze Spec-
ifications 1 and 9.
In the specifications alleging the ongoing course of conduct—Specifica-
tions 6, 7, 8, and 13—the government charged the appellant based upon the
manner in which the appellant touched the victim. For instance, Specification
6 alleged the appellant touched CM’s breasts with his hands and mouth. 37
The government could have, but did not, allege two separate specifications,
one for contact with his hands and one for contact with his mouth. The gov-
ernment likewise refrained from charging one specification alleging multiple
37 Although Specifications 8 and 13 both allege contact with CM’s buttocks, we
find the nature of contact by the appellant’s hands and groin is sufficiently distinct as
to not constitute UMC.
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United States v. McDonald, No. 201700172
lewd acts per night of abuse. 38 In United States v. Campbell, the CAAF ana-
lyzed a charging scheme in which the government charged Captain Campbell
with 3 ongoing courses of conduct vice 31 individual specifications alleging a
single act of larceny for wrongfully withdrawing prescription medications
from an automated dispensing machine. 71 M.J. at 25. The CAAF held that
the government “arguably” reduced rather than exaggerated Captain Camp-
bell’s criminality when it levied 3 charges instead of 31. Id. We find this same
logic applies to the government’s charging scheme here.
The number of specifications does not constitute a “piling on” of charges,
but properly “reflects charges for distinct criminal conduct.” United States v.
Paxton, 64 M.J. 484, 491 (C.A.A.F. 2007) (rejecting the appellant’s UMC chal-
lenge to separate charges for the indecent acts that preceded the child rape
and sodomy, all of which occurred on the same occasion). Considering Specifi-
cation 9 in relation to Specification 1, it is not an unreasonable increase in
the appellant’s punitive exposure to face additional confinement time for a
sexual contact that occurred close in time to his digital penetration of CM’s
vagina. The appellant cites United States v. Thomas in his brief. 74 M.J. 563
(N-M. Ct. Crim. App. 2014). In Thomas, this court held the military judge
abused his discretion by declining to merge two sexual assault convictions
arising from the same sexual act—one alleging the victim was asleep or oth-
erwise unaware of the sexual act, and the other alleging the appellant knew
or should have known the victim was incapable of consenting due to impair-
ment. Thomas is distinguishable as the specifications in Thomas charged the
same sexual act under two theories of liability under Article 120, UCMJ.
Here, the specifications relate to two separate sexual assaults committed
close in time.
Nor was it improper for the government to charge discrete assaults in
conjunction with an ongoing course of conduct. Specification 9 alleges a spe-
cific sexual contact on one discrete occasion, whereas specification 13 alleges
distinctly different contacts on multiple occasions. See United States v. Ro-
driguez, 2017 CCA LEXIS 42 at *35 (N-M. Ct. Crim. App. 30 Jan 2017) (un-
pub. op.) (holding it was not an unreasonable multiplication of charges to
punish appellant for an ongoing course of conduct in addition to two discrete
assaults). It was not unreasonable to charge and punish the appellant for
both offenses under Specifications 9 and 13. There is no prosecutorial over-
reach. These different offenses could not have been charged as one as they
38 We do not encourage this practice, but assesses the government’s reasonable-
ness in light of the different charging possibilities.
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United States v. McDonald, No. 201700172
involve different acts. The same analysis applies to Specification 9 in relation
to Specifications 6, 7, and 8.
All told, the specifications do not misrepresent the appellant’s criminality,
unreasonably increase his punitive exposure, and there is no evidence of
prosecutorial overreach. Specifications 6, 7, 8, 9, and 13 do not constitute
UMC and it was appropriate to allow sentencing on all specifications.
D. Improper argument
The appellant argues the trial counsel made improper arguments when
he: (1) argued facts that were not in evidence; (2) argued the members should
disregard the accused’s service record as a mitigating factor; and (3) repeat-
edly referred to the appellant as a “child molester.” The trial defense coun-
sel’s only objection related to arguing facts not in evidence. The trial defense
counsel did not object to the other arguments the appellant now claims were
improper.
In United States v. Andrews, the CAAF outlined the standard of review
for alleged prosecutorial misconduct in the form of improper argument: “We
review prosecutorial misconduct and improper argument de novo. If proper
objection is made, we review for prejudicial error. If no objection is made, we
. . . review for plain error. The burden of proof under plain error review is on
the appellant.” 77 M.J. 393, 398 (C.A.A.F. 2018) (internal citations omitted).
Plain error is error that is “plain or obvious” and which “results in material
prejudice to a substantial right of the accused.” Id. at 401 (internal citation
omitted). Whether or not counsel objected, the appellant is only entitled to
relief when error is prejudicial—in this context, “the trial counsel’s com-
ments” when “taken as a whole” must be “so damaging that we cannot be con-
fident” that the members acted “on the basis of the evidence alone.” Id. at
401-02 (citing United States v. Sewell, 76 M.J. 14, 18 (C.A.A.F. 2017); United
States v. Hornback, 73 M.J. 155, 160 (C.A.A.F. 2014)). For the alleged im-
proper argument not objected to at trial, the burden is on the appellant to es-
tablish prejudice. Sewell, 76 M.J. at 18 (internal citation omitted).
1. Facts not in evidence
At trial, the appellant objected to the trial counsel’s argument that the
appellant was “starting to groom” his other step-daughter, CM’s younger sis-
ter. 39 The military judge issued a curative instruction, informing the mem-
bers “there has been no evidence presented as to that whatsoever,” and “no
39 Record at 597.
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United States v. McDonald, No. 201700172
evidence upon which to draw any reasonable inference whatsoever” that the
appellant was trying to groom CM’s younger sister for sexual abuse. 40 All
members confirmed they would completely disregard that portion of trial
counsel’s argument. Members are “presumed to follow the military judge’s
instructions.” United States v. Loving, 41 M.J. 213, 235 (C.A.A.F. 1994) (quot-
ing United States v. Holt, 33 M.J. 400, 408 (C.M.A. 1991)). Upon considera-
tion of the military judge’s strongly worded curative instruction and the
member’s affirmation that they would follow the instruction, we find no error
prejudicial to the substantial rights of the appellant.
The appellant additionally avers, for the first time on appeal, that trial
counsel improperly argued facts not in evidence when he argued: (1) the ap-
pellant would recidivate, despite Dr. RK’s testimony that the appellant pre-
sented a low risk of recidivism; and (2) the appellant’s sexual abuse caused
CM’s first suicide attempt in Hawaii. Absent objection at trial, we review for
plain error and find none.
The appellant cites to United States v. Frey, 73 M.J. 245 (C.A.A.F. 2014)
to claim it was improper for trial counsel to argue the appellant would recidi-
vate. 41 We find Frey to be distinguishable from this case. In Frey, without any
expert testimony or other evidence on the risk of recidivism, trial counsel ap-
pealed to the members’ “common sense, ways of the world, about child mo-
lesters” to argue the appellant likely offended before and would reoffend.
Frey, 73 M.J. at 249. By contrast, in this case, the trial counsel used specific
facts from the appellant’s two NCIS interviews, which were admitted in evi-
dence in presentencing, to argue that the members should lend less credibil-
ity to Dr. RK’s testimony about the appellant’s low risk of recidivism. The tri-
al counsel also questioned Dr. RK’s reliance upon the abilities of the proba-
tion system to ensure, based on a “monthly check-in,” that the appellant
would most likely “never be around children again.” 42 Frey does not stand for
the proposition that counsel cannot properly challenge the credibility of ex-
pert testimony on the risk of recidivism, but rather that trial counsel must
refrain from manufacturing a risk of recidivism from thin air based on reli-
ance on “common sense, ways of the world.” Id. In this case, the trial counsel
made proper argument.
The appellant’s third argument that the trial counsel improperly argued
facts outside the record challenges trial counsel’s argument that the appel-
40 Id. at 599.
41 Appellant’s Brief at 44.
42 Record at 519.
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United States v. McDonald, No. 201700172
lant’s abuse caused CM’s first suicide attempt. 43 Counsel may argue “all rea-
sonable inferences fairly derived” from the evidence. United States v. Baer, 53
M.J. 235, 237 (C.A.A.F. 2000) (internal citation omitted). We do not attempt
to understand the motivations behind a 12-year-old sex assault victim’s first
suicide attempt. However, we cannot ignore the timing of CM’s first suicide
attempt—just a few short months after the appellant first abused her. CM
testified her suicide attempt was motivated in part by “a lot of other family
issues.” 44 Although she stated she repressed thoughts of her recent sexual
abuse, “push[ing] it so far down, [she] didn’t think of it anymore,” it was a
fair inference for trial counsel to argue CM’s efforts to repress the abuse were
not entirely successful and that the appellant’s abuse was at least a contrib-
uting factor in her first suicide attempt. 45
2. Accused’s service record
The appellant alleges the trial counsel “argued that the members
shouldn’t consider [the appellant’s] military background and achievements.” 46
The trial counsel argued, “when weighed against being a child molester, be-
ing a good Sailor is completely and utterly irrelevant” and “when sentencing
a repeat child molester, evals are meaningless.” 47
We assess these two statements in turn. Relevance is a legal term defined
under Military Rule of Evidence 401. MILITARY RULE OF EVIDENCE 401,
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.). The appellant’s
service record was not only relevant, it was admissible under R.C.M. 1001(c),
and substantial portions of the appellant’s service record were admitted into
evidence. The members were required to consider all admitted evidence. Be-
cause the trial counsel’s argument misused the legal term of relevance, this
argument misstated the law and was improper. In the absence of objection,
we find the trial counsel’s argument that “being a good Sailor is completely
and utterly irrelevant” constituted obvious error.
Turning to the second argument, that the appellant’s “evals [were] mean-
ingless,” we reach a different result. This argument did not misuse a legal
term. We evaluate counsel’s argument in “context” and do not focus our in-
43 Appellant’s Brief at 46.
44 Record at 376.
45 Id.
46 Appellant’s Brief at 46.
47 Record at 583-84.
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United States v. McDonald, No. 201700172
quiry “on words in isolation.” Baer, 53 M.J. at 238 (internal citation omitted).
Viewing the trial counsel’s argument in context, we find the trial counsel did
not urge the members to completely disregard admissible evidence, but ra-
ther to give it the weight it merits—almost no weight—when balanced
against the severity of the appellant’s offenses. This is proper argument.
Having found plain error in one aspect of the trial counsel’s argument, we
must assess for prejudice. The appellant is entitled to relief based on improp-
er argument only if the argument “materially prejudiced” his “substantial
rights.” Baer, 53 M.J. at 237 (internal citation omitted). The military judge
properly instructed the members to consider all evidence in aggravation, ex-
tenuation, and mitigation, and he instructed the members on the defense-
provided Wheeler factors which described the appellant’s military service. 48
The members had no questions about this instruction. Absent contrary indi-
cations, we presume the panel followed the military judge’s instructions.
United States v. Sewell, 76 M.J. at 19. Even though the trial counsel made
one improper argument, it was a single statement, which turned on the im-
proper use of one word, over the course of a 17-page argument. Viewed as a
whole, the trial counsel’s argument urged the members to “fashion their sen-
tence” based upon “cool, calm consideration of the evidence and commonly
accepted principles of sentencing,” focusing on the severity and frequency of
the appellant’s offenses and their impact on CM. Baer, 53 M.J. at 237 (inter-
nal quotations and citation omitted). We find no material prejudice to the ap-
pellant’s substantial rights.
3. “Child molester”
Finally, the appellant complains the trial counsel improperly used the
words “molest” and “child molester” during his sentencing argument. The ap-
pellant pleaded guilty to specifications involving sexual assault of a child and
sexual abuse of a child, by committing lewd acts. We find the word “molest” to
be synonymous with the word “abuse” when used in the context of child sexu-
al abuse and we do not find error in the trial counsel’s use of the word “mo-
lest” in this case.
The trial counsel used the term “child molester” to refer to the appellant,
either directly or by implication, 14 times in 17 pages of argument. Based on
the appellant’s guilty pleas, the trial counsel could fairly call the appellant an
admitted “child sexual abuser” or a person convicted of “sexually assaulting a
child,” or similar terms. It was the appellant—not the trial counsel—who first
48 Id. at 566, 573-75; United States v. Wheeler, 17 U.S.C.M.A. 174 (C.M.A. 1967).
20
United States v. McDonald, No. 201700172
referenced the words by which society would address him. During his un-
sworn statement, the appellant stated he will be forever branded with the
titles “child-abuser,” “sex offender,” and “child sex-offender.” 49
Used in this context, in light of the trial counsel’s complete sentencing ar-
gument, we find that the trial counsel did not overuse the word “child molest-
er” and did not “unduly . . . inflame the passions or prejudices of the court
members.” United States v. Schroder, 65 M.J. 49, 58 (internal citation omit-
ted). Assessing for plain error, we find none.
4. Confidence in the sentence
When improper argument occurs in sentencing, the court must evaluate
whether we can be “confident that [the appellant] was sentenced on the basis
of the evidence alone.” United States v. Halpin, 71 M.J. 477, 480 (C.A.A.F.
2013) (brackets in original) (internal citation omitted). We find the trial coun-
sel made an improper argument when he characterized the appellant’s ser-
vice record as “completely and utterly irrelevant.” We find the other argu-
ments cited by the appellant were not improper. Assuming arguendo¸ the ad-
ditional complained of arguments constituted error, we find the appellant
was not prejudiced by any errors in the sentencing argument.
The military judge instructed the members they could sentence the appel-
lant to up to 170 years’ confinement, and the trial counsel urged the members
to impose that maximum confinement sentence. The members awarded 30
years’ confinement. We do not find the members sentenced the appellant
based on improper argument, nor do we find that they failed to fairly consider
the appellant’s military career.
The appellant’s crimes justify a sentence of 30 years’ confinement. Based
on the nature of the appellant’s position as a trusted parental figure, the on-
going course of conduct, and the impact of appellant’s crimes on his victim,
the evidence amply supports a sentence including 30 years’ confinement.
E. Military judge’s impartiality
In his final AOE, the appellant argues that the military judge abandoned
his impartial role when he asked a defense witness about the effects of
“chronic PTSD.”50 The appellant’s challenge to the military judge’s impartial-
ity is without merit. The trial defense counsel elicited testimony from the de-
fense expert, Dr. RK, on direct examination about the long-term effects of
49 Record at 538.
50 Appellant’s Brief at 10.
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United States v. McDonald, No. 201700172
child sexual abuse, suggesting not all victims suffer life-long harm. When the
trial defense counsel sought to further question Dr. RK on the potential harm
resulting from the child victim being call to provide testimony at trial, the
trial counsel objected. During an Article 39(a) session, the trial defense coun-
sel argued the evidence was relevant to show that some of CM’s trauma, evi-
dent in her emotional testimony, was caused by re-victimization through the
trial process, not by the appellant. The military judge ruled in the appellant’s
favor, permitting the line of questioning. After cross-examination, the mili-
tary judge asked follow-up questions about PTSD. His questions were within
the scope of trial defense counsel’s examination, which included testimony
about potential life-long impact on child victims of sexual abuse. To guard
against any perceived lack of partiality on his part, the military judge in-
structed the members that they were to “disregard any comment or state-
ment or expression made by [him] during the course of the trial that might
seem to indicate any opinion on [his] part.” 51
III. CONCLUSION
The findings and the sentence are affirmed. The supplemental court-
martial order shall reflect that the military judge consolidated Specifications
2 and 3 of Charge I into a new consolidated Specification 2, which reads:
In that Information Systems Technology Chief Petty Officer
Chester N. McDonald, U.S. Navy, Navy Region Hawaii, on ac-
tive duty, did, on the island of Oahu, Hawaii, between on or
about December 2014 and on or about January 2015, commit a
lewd act upon CM, a child who had not attained the age of six-
teen (16) years, to wit: touching her buttocks with his hand and
kissing her neck and back with his mouth. 52
The supplemental court-martial order shall further reflect that: the mili-
tary judge conditionally dismissed Specification 5 of Charge I without preju-
dice, to ripen into prejudice upon completion of appellate review; merged
51 Record at 545-46; 566.
52 Id. at 112. The military judge used the term “merger” but his action in combin-
ing the operative language of the specifications for findings is more appropriately a
consolidation of the specifications. See United States v. Thomas, 74 M.J. at 569
(“Consolidation is accomplished by simply combining the operative language from
each specification into a single specification that adequately reflects each convic-
tion.”).
22
United States v. McDonald, No. 201700172
Specifications 7, 8, and 10 of Charge I for sentencing; and merged Specifica-
tions 1, 11 and 12 of Charge I for sentencing.
Senior Judge HUTCHISON and Judge LAWRENCE concur.
FOR THE COURT
RODGER A. DREW, JR.
Clerk of Court
23