United States v. Luna

U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
_________________________
No. 201500423
_________________________
UNITED STATES OF AMERICA
Appellee
v.
BENJAMIN D. LUNA
Staff Sergeant (E-6), U.S. Marine Corps
Appellant
_________________________
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Lieutenant Colonel Elizabeth A. Harvey, USMC.
Convening Authority: Commanding General, Marine Corps Recruit
Depot/Western Recruiting Region, San Diego, Cal ifornia.
Staff Judge Advocate’s Recommendation: Major Jeffrey V. Munoz,
USMC.
For Appellant: Frank J. Spinner, Esq.; Lieutenant Christopher C.
McMahon, JAGC, USN.
For Appellee: Captain Dale O. Harris, JAGC, USN; Lieutenant
Commander Jeremy R. Brooks, JAGC, USN; Lieutenant Jetti L.
Gibson, JAGC, USN; Lieutenant Robert J. Miller, JAGC, USN.
_________________________
Decided 9 May 2017
_________________________
Before C AMPBELL , R UGH , and H UTCHISON , Appellate Military Judges
_________________________
This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
_________________________
HUTCHISON, Judge:
A panel of members with enlisted representation, sitting as a general
court-martial, convicted the appellant, contrary to his pleas, of one
specification of rape, two specifications of sodomy, four specifications of
United States v. Luna, No. 201500423
indecent acts upon a child, and one specification of indecent liberties with a
child, in violation of Articles 120, 125, and 134, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 920, 925, and 934. The members sentenced the
appellant to 20 years’ confinement and a dishonorable discharge. The
convening authority approved the sentence as adjudged.
As his lone, original assignment of error, the appellant contends the
evidence is legally and factually insufficient to support his convictions.1 We
specified an issue regarding whether the military judge erred in admitting
propensity evidence in light of United States v. Hills, 75 M.J. 350 (C.A.A.F.
2016). We agree with the appellant that as to one Article 134, UCMJ,
specification the evidence does not support a finding that the offense occurred
“on divers occasions” and take corrective action in our decretal paragraph.
Although we find error in the military judge’s use of charged offenses as
propensity evidence, we conclude the error was harmless beyond a reasonable
doubt. Thus, following our corrective action, we conclude the findings and
sentence are correct in law and fact and that no error materially prejudicial
to the appellant’s substantial rights remains. Arts. 59(a) and 66(c), UCMJ.
I. BACKGROUND
In 1997 the appellant married Sally,2 who had two children from a
previous relationship, Veronica and Albert. Veronica was three years old
when the appellant and her mother married. Between 2003 and 2004 the
family moved to Camp Pendleton, California, where they lived in base
housing. By December 2005, the appellant and Sally had two more
daughters, Betty and Nancy.
Veronica testified at trial that the appellant sexually abused her in their
Camp Pendleton home between March 2004 and March 2007, when she was
between the ages of 11 and 13. Although her mother was never home while
the abuse occurred, some of her siblings were. Betty testified that when she
was about eight years old, she saw the appellant standing in his bedroom
fully clothed with Veronica lying on the bed, naked from the waist down.3 The
abuse took many forms and continued until early 2007, when Veronica told
1 In a supplemental summary assignment of error, the appellant argued the
military judge erred in instructing the members regarding reasonable doubt. In
accordance with the holding in United States v. McClour, 76 M.J. 23 (C.A.A.F. 2017),
we summarily reject the supplemental assignment of error. United States v. Clifton,
35 M.J. 79, 81-82 (C.M.A. 1992).
2 All names are pseudonyms.
3 Albert, on the other hand, testified that the appellant was never alone with
Veronica or Betty when his mother was not home, and the appellant never showered
with him or any of his sisters. Record at 578.
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United States v. Luna, No. 201500423
her mother. That disclosure was precipitated by a severe spanking Veronica
received from the appellant over wearing makeup. After the spanking, the
appellant left the house to calm down. While he was gone, Sally came home
and Veronica told her that the appellant had hit her with a belt and further
disclosed that she had been molested.4
Upon the appellant’s return home, Sally confronted him, kicked him out
of the house, and telephonically reported the abuse to the appellant’s father.
The appellant drove to his father’s house, approximately two hours away, and
there the two men had a heated argument.
After a brief period where the appellant intermittently slept in his car, in
his garage, and at a friend’s house, he and Sally reconciled, remained
married, and the family continued living together.5 However, by November
2011, the marriage had soured. The appellant filed for divorce, and it became
final in May 2012. Sally was awarded full custody of their children, but the
appellant continued to see them and continued to participate in family
events. The appellant was also present for the birth of Veronica’s son, Jimmy,
in March 2012. He walked Veronica down the aisle when she married in 2013
and attended Jimmy’s first birthday party in March 2013.
In September 2013, the appellant had another child, Billy, with his new
girlfriend, Misty, whom he had met in 2012. Sally learned of Misty and Billy
through social media in December 2013, and subsequently reported the prior
molestation of Veronica to NCIS in February 2014. At trial, Sally testified
that she waited to file the report because she did not want to humiliate
Veronica, she wanted her children to have a father, and she feared the family
4 Sally testified that as early as late 2006, she sensed something was wrong with
Veronica and that she twice asked Veronica whether anyone had ever touched her
inappropriately. Each time Veronica denied it. Veronica testified she denied the
abuse when asked because she was afraid she would get in trouble and lose her
family.
5 Testimony diverged on exactly how long the appellant remained away from the
home following his confrontation with Sally. The appellant deployed in 2008 and the
family moved to Pasadena, California to be closer to both the appellant’s and Sally’s
families. Upon the appellant’s return from deployment, he was selected for drill
instructor duty which required him to go through drill instructor school and then
work arduous hours at Marine Corps Recruit Depot (MCRD) San Diego. As a result,
from 2009 until 2012, the appellant routinely stayed in quarters at MCRD during the
week and would return to his family on the weekends or in between recruit training
cycles. During that timeframe, the family moved to several different houses in and
around Pasadena and Murrieta, California. While the appellant and Sally
maintained a sexual relationship, filed joint taxes, and the appellant’s name
remained on the several leases for off-base housing, the nature of the appellant’s
work often kept him away from the family home for extended periods of time.
3
United States v. Luna, No. 201500423
would lose their base housing. Veronica testified that she did not report the
incident sooner because she was afraid her family would fall apart and did
not believe the appellant would molest her sisters, as they were his biological
children.
II. DISCUSSION
A. Factual and legal sufficiency
We review questions of legal and factual sufficiency de novo. Art. 66(c),
UCMJ. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The
test for legal sufficiency is “whether considering the evidence in the light
most favorable to the prosecution, a reasonable fact finder could have found
all the essential elements beyond a reasonable doubt.” United States v.
Humphreys, 57 M.J. 83, 94 (C.A.A.F. 2002) (citations and internal quotation
marks omitted). In weighing questions of legal sufficiency, the court is “bound
to draw every reasonable 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 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 accused’s guilt beyond a reasonable
doubt.” United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).
The appellant claims the following facts render his conviction factually
and legally insufficient: (1) the alleged molestation occurred over 10 years ago
at a time when Veronica’s memory was susceptible to manipulation, and her
testimony was the “sole basis” for conviction; (2) Veronica continued to have a
familial relationship with the appellant until 2013; and (3) the appellant
denied molesting Veronica.
Despite the delay in reporting, we find Veronica’s account of the sexual
abuse credible, as she clearly described all of the charged offenses in
definitive and compelling detail. Although there were instances where
Veronica could not recall specific, ancillary details about the instances of
abuse, her memory regarding the nature and quality of the appellant’s
actions that formed the basis of the charges was convincing.
Veronica provided detailed testimony about the appellant’s penis
penetrating her outer labia. She testified that she was at least partially
naked, on her back, in her parents’ bed. She further testified that she cried
out in pain when the appellant penetrated her—at which time he stopped
and said they would try again when she was older.
Veronica also testified that the appellant forced her to place his penis in
her mouth in her parents’ bedroom and shower. Notably, on one occasion, the
appellant covered his penis in an edible lubricant and forced Veronica to
4
United States v. Luna, No. 201500423
perform oral sex on him.6 Veronica also testified that the appellant performed
oral sex on her, explaining, “[h]e used to just lay me on the bed and then
spread my legs and perform oral sex . . . . I remember watching him.”7
Additionally, Veronica testified that the appellant, on numerous
occasions, laid her on his bed in her underpants while he rubbed stretch
mark lotion onto her thighs, moving his hands up her legs toward her vagina.
She kept the lotion and gave it to NCIS during the course of the
investigation.
Once, while walking through their laundry room, the appellant asked
Veronica whether she had ever kissed a boy. “[The appellant] picked [her] up
and put [her] on the washer and told [her] that he was going to show [her]
how.”8 The appellant then began kissing her with his tongue. When the trial
counsel (TC) asked whether “this happened more than once,” Veronica
responded: “That time, specifically, is what I remember.”9 The TC did not
follow up with another question related to the appellant kissing Veronica,
and no other testimony or evidence was introduced that would indicate the
appellant kissed Veronica at any other time. Consequently, we are left with
doubt that the appellant kissed Veronica on the mouth with his tongue on
more than one occasion. Accordingly, we will affirm only so much of the
finding of guilty to that specification that does not include the words “on
divers occasions.”
Veronica also testified that the appellant showed her his penis in her
parents’ bathroom and “then [the appellant] . . . tr[ied] to get [her] to . . . jack
him off . . . telling [her] that the faster that [she] move[s] it, it makes you
cum.”10 She testified that she saw him ejaculate into the bathroom sink. She
further testified that on many other occasions the appellant showed her his
penis but did not masturbate. Finally, Veronica testified that, on several
occasions, the appellant forced her to touch his penis and rubbed his penis on
her vagina and inner thighs while in her parents’ bed and in their shower.
Contrary to the appellant’s assertions, Veronica’s testimony, while
convincing, was not the sole basis for the convictions. Sally testified that after
she became aware of the abuse in 2007, she took various measures in an
attempt to prevent its continuance, including asking the appellant to leave
their home. Betty, the appellant’s biological daughter, who admitted to
6 Record at 451.
7 Id.8 Id. at 446.
9 Id. at 447.
10 Id.5
United States v. Luna, No. 201500423
feeling closer to the appellant than to Sally, testified that she saw Veronica
naked from the waist down, alone in the appellant’s bedroom with the
appellant.
Additionally, the appellant’s father testified that the appellant came to
his home after Sally told the appellant’s father that the appellant had been
sexually abusing Veronica, and admitted to having made a mistake and
apologized.11 The appellant also sent Sally a series of incriminating text
messages during their divorce, telling her, “[y]ou’ll be served, you’ll cry and
get mad, tell your counselor about the past, I’ll go to jail, that’s the last I will
ever see you and my daughters.”12 In another text to Sally, the appellant said,
“[y]ou had no problem having me sleep in my car because its [sic] fine that’s
what I deserved.”13
Moreover, nothing at trial revealed a credible motive to fabricate for
either Veronica or Sally. While Sally and the appellant had a contentious
divorce, there is no evidence the divorce motivated Sally or Veronica to report
the molestation. In fact, the appellant and Sally testified that they
maintained a cordial, familial relationship during and after the divorce.
Indeed, the appellant and Sally maintained close contact nearly two years
after the appellant filed for divorce. Both Sally and Veronica testified that
they never reported the abuse because they did not want to destroy their
family. Once Billy was born and the appellant’s new relationship was
cemented, Sally and Veronica no longer had reason to keep the past abuse
secret.
The appellant avers that the news of Billy’s birth so upset Sally that she
took Veronica to NCIS, “where she provided details which had never been
previously disclosed to anyone.”14 This argument is not persuasive. Although
there is strong evidence to suggest that Sally was motivated by Billy’s birth
to report the appellant and persuade Veronica to share the details of her
abuse with NCIS after the appellant moved on with a new family, we are
11 The appellant’s father was a reluctant government witness and stated that he
did not desire to testify. During direct examination he admitted to being “so
infuriated with the information that [he] got hours earlier” concerning the abuse,
that he struck the appellant after the appellant arrived at his home and told the
appellant, “I’m your father, this is something I can’t get you out of.” Record at 516-17.
The appellant’s father also testified that the appellant told him, “Dad, I mean, what
can I tell you . . . [i]t’s not like that” and referring to Sally, “[y]ou are going to believe
that person?” Id.12 Prosecution Exhibit (PE) 4.
13 PE 5.
14 Appellant’s Brief and Assignment of Error of 20 Jul 16 at 7 (citation omitted).
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United States v. Luna, No. 201500423
convinced that the underlying facts regarding that abuse are true. Indeed,
the appellant concedes that Sally confronted him about the abuse as soon as
Veronica made the initial allegations in 2007. It was only Sally’s desire to
keep the family together—no longer viewed by Sally as a possibility after the
birth of Billy—that prevented a timely report.
Likewise, the delay in reporting does not lead us to doubt Veronica’s
testimony. She testified that throughout and after the abuse the appellant
forbade her from reporting it, leading her to believe she would lose her family
if she told anyone.15 As noted supra, although she did not report the abuse to
law enforcement until much later, Veronica confirmed to her mother in early
2007 that the abuse had occurred.
We also find no credible evidence that Veronica’s memory was
manipulated or corrupted. A defense expert on memory manipulation
emphasized during his testimony that memories are most easily
contaminated in preschool-aged children.16 However, Veronica was between
the ages of 11 and 13 at the time of the abuse—far more mentally developed
than a toddler. The expert also did not personally interview Veronica and did
not specifically conclude that her memory had been contaminated.
The appellant next contends that Veronica’s continuing relationship with
the appellant belies her allegations of molestation. We do not speculate as to
why Veronica remained in contact with the appellant after the abuse
occurred, but we recognize there are many reasons a victim might maintain a
relationship with a perpetrator, especially in a familial setting. Importantly,
for several years after the abuse, Veronica was a child who lived with her
mother. As long as Sally continued to maintain a familial relationship with
the appellant, so too, necessarily, would Veronica. Additionally, Veronica
suggested several such reasons during her testimony, including that she
feared harming the appellant’s relationship with her sisters—the appellant’s
biological daughters—and she did have some happy childhood memories of
the appellant as her father.17
Finally, in light of all the other evidence, especially the appellant’s own
text messages to Sally implying he was at fault and could be jailed for his
actions, we find the appellant’s testimony self-serving and unreliable.
Additionally, we note the appellant’s version of events corroborates much of
the other witness testimony. The appellant admits to being alone with
15 Record at 452-53.
16 Id. at 661.
17 Id. at 501-03.
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Veronica, disciplining her with a belt, being confronted by Sally, and driving
to his father’s house where he apologized for some conduct.
As a result, and with the exception of the “on divers occasions” language
in Specification 2 under Charge III, noted supra, we are convinced that when
viewed in a light most favorable to the prosecution, a rational trier of fact
could have found each element of each of the specifications proven beyond a
reasonable doubt and we, ourselves, are convinced beyond a reasonable doubt
of the appellant’s guilt to each of the specifications.
B. Propensity evidence
Before their deliberations on findings, the military judge instructed the
members concerning their use of charged sexual misconduct, pursuant to
MILITARY RULE OF EVIDENCE (MIL. R. EVID.) 414, SUPPLEMENT TO MANUAL
FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), as evidence of the
appellant’s propensity to commit the other charged sexual misconduct:
Evidence that the accused committed the sexual assault
alleged in any of the specifications under the three charges
may have no bearing on your deliberations in relation to the
other specifications unless you first determine by a
preponderance of the evidence, that is more likely than not, the
offenses alleged in that specification occurred. If you determine
by a preponderance of the evidence the offense alleged in one of
the specifications under the three charges occurred, even if you
are not convinced beyond a reasonable doubt that the accused
is guilty of that offense, you may nonetheless then consider the
evidence of that offense for its bearing on any matter to which
it is relevant in relation to any other specification. You may
also consider the evidence of that specification for its tendency,
if any, to show the accused’s propensity or predisposition to
engage in sexual assault.18
We review the admissibility of evidence under MIL. R. EVID. 414 for an
abuse of discretion. United States v. Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010).
“Whether a panel was properly instructed is a question of law” we review de
novo. United States v. Ober, 66 M.J. 393, 405 (C.A.A.F. 2008) (citations
omitted).
In Hills, the military judge granted a government motion under MIL. R.
EVID. 413 to admit all of the charged conduct as evidence of Hills’ propensity
to commit the sexual assaults with which he was charged. Hills, 75 M.J. at
352-53. Hills’ charged misconduct involved a single victim and a single course
18 Id. at 764-65; Appellate Exhibit LVIII.
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United States v. Luna, No. 201500423
of conduct, with Hills committing several offenses over the course of a couple
hours while his victim passed in and out of consciousness. Our superior court
found that a military judge was “operat[ing] under an erroneous view of the
law when he admitted the charged offenses as [MIL. R. EVID.] 413 evidence to
show [the a]ppellant’s propensity to commit [other] charged offenses, and
thus abused his discretion.” Id. at 355. Since Hills, military appellate courts
have struggled with defining the breadth and scope of the decision.19
However, in United States v. Hukill, the Court of Appeals for the Armed
Forces clarified that:
the use of evidence of charged conduct as [MIL. R. EVID.] 413
propensity evidence for other charged conduct in the same case
is error, regardless of the forum, the number of victims, or
whether the events are connected. Whether considered by
members or a military judge, evidence of a charged and
contested offense, of which an accused is presumed innocent,
cannot be used as propensity evidence in support of a
companion charged offense.
__ M.J. __, No. 17-0003/AR, slip op. at *6 (C.A.A.F. May 2, 2017).
Although Hills dealt with MIL. R. EVID. 413, the analysis under MIL. R.
EVID. 414 is the same.20 Therefore, we hold that because “evidence of the
charged sexual misconduct was already admissible in order to prove the
offenses at issue,” the application of MIL. R. EVID. 414—“a rule of
19 See United States v. Tafoya, No. 20140798, 2017 CCA LEXIS 107, at *3,
unpublished op. (A. Ct. Crim. App. 14 Feb 2017) (summary disposition) (finding Hills’
application in a case tried before a military judge “significantly different” and finding
“no concern that appellant's constitutional rights, including the presumption of
innocence, were somehow eroded by the military judge's consideration of propensity
evidence”); United States v. Guardado, 75 M.J. 889, 896 (A. Ct. Crim. App. 2016)
(discussing the scope of the Hills decision and holding that Hills “prohibit[s], under
all circumstances, giving a propensity instruction based on a charged offense”)
(emphasis added); United States v. Mancini, No. 38783, 2016 CCA LEXIS 660, at *36,
unpublished op. (A.F. Ct. Crim. App. 7 Nov 2016) (noting the “ultimate holding in
Hills would [not] have been different had the charged offenses involved multiple
victims or differing offense dates”).
20See United States v. Tanner, 63 M.J. 445, 448-49 (C.A.A.F. 2006) (noting the
similar legislative history of MIL. R. EVID. 413, its “companion rule,” and finding that
MIL. R. EVID. 414, like MIL. R. EVID. 413, establishes a presumption in favor of
admissibility of evidence of prior similar crimes, in order to show predisposition to
commit the designated crimes.); United States v. Bonilla, No. 20131084, 2016 CCA
LEXIS 590, at *22-23, unpublished op. (A. Ct. Crim. App. 30 Sep 2016) (analyzing
propensity evidence admitted under MIL. R. EVID. 414 using the same standards
applied to evidence admitted under MIL. R. EVID. 413).
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United States v. Luna, No. 201500423
admissibility for evidence that would otherwise not be admissible—was
error.” Hills, 75 M.J. at 352.
As a result, the military judge’s instruction, while modeled on the
Military Judges’ Benchbook,21 was error and “implicate[d] ‘fundamental
conceptions of justice’ under the Due Process Clause by creating the risk that
the members would apply an impermissibly low standard of proof”—a
preponderance of evidence standard—and thereby “undermin[e] both ‘the
presumption of innocence and the requirement that the prosecution prove
guilt beyond a reasonable doubt[.]’” Id. at 357 (quoting United States v.
Wright, 53 M.J. 476, 481 (C.A.A.F. 2000)). Where an instructional error rises
to a constitutional dimension, we review the error to determine if it was
harmless beyond a reasonable doubt. United States v. Kreutzer, 61 M.J. 293,
298 (C.A.A.F. 2005). A constitutional error is harmless beyond a reasonable
doubt if the error complained of did not contribute to the verdict obtained.
United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002). In determining,
then, whether the military judge’s erroneous instruction contributed to the
verdict, we must consider the “whole record.” Delaware v. Van Arsdall, 475
U.S. 673, 681 (1986).
Since Hills, several courts have found no prejudice, despite the erroneous
admission of charged misconduct as propensity evidence. In United States v.
Bonilla, No. 20131084, 2016 CCA LEXIS 590, unpublished op. (A. Ct. Crim.
App. 30 Sep 2016), the Army Court of Criminal Appeals upheld Bonilla’s
convictions for sexual assault, finding that the burden of proof had been
reinforced throughout the trial, the victim’s account of the sexual assaults
was corroborated by physical evidence, and the TC did not reference the
propensity evidence in his argument. Similarly, the Air Force Court of
Criminal Appeals found an erroneous propensity instruction to be harmless
beyond a reasonable doubt after concluding that the victim’s testimony was
credible, the propensity evidence was not a focus of the prosecution, and the
appellant’s admissions supported the findings. United States v. Harrison, No.
38745, 2016 CCA LEXIS 431, at *34-36, unpublished op. (A.F. Ct. Crim. App.
20 Jul 20 2016), aff’d, No 17-0063/AF, 2017 CAAF LEXIS 91 (C.A.A.F. Feb.
13, 2017) (summary disposition).
In our only previous decision applying Hills, we set aside a chief petty
officer’s convictions for sexual assault, abusive sexual contact, and assault
consummated by battery after finding the military judge admitted charged
misconduct as propensity evidence pursuant to MIL. R. EVID. 413 and then
provided the same erroneous instruction found in Hills. United States v. Ellis,
No. 201500163, 2016 CCA LEXIS 516 (N-M. Ct. Crim. App. 30 Aug 2016). We
21 Dept. of the Army Pamphlet 27-9 at 1105-06 (10 Sep 2014).
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United States v. Luna, No. 201500423
noted that while the government’s case was strong, “it suffered some of the
same weaknesses that concerned the CAAF in Hills”—a lack of physical
evidence, no eyewitnesses, and inconsistent statements from the victims. Id.
at *10-11. As a result, we could not be “certain, beyond a reasonable doubt,
that error did not contribute to Chief Ellis’s convictions.” Id. at *11.
After considering the record as a whole, we find the facts of this case
distinguishable from both Hills and Ellis and conclude that any
error surrounding the admission of propensity evidence in this case to be
harmless beyond a reasonable doubt. As we noted supra, Veronica’s
testimony was compelling and was corroborated by Betty and the appellant’s
own incriminating text messages. Moreover, the TC did not reference the
propensity instruction or refer to propensity evidence during either his
closing argument or in rebuttal. Rather, the TC reiterated, time and again,
the government’s burden of proving each and every element of every
specification beyond a reasonable doubt. Consequently, we are convinced
beyond a reasonable doubt that the propensity instruction did not contribute
to the findings of guilty or the appellant’s sentence.
C. Reassessment of sentence
Having set aside a portion of the appellant’s conviction, we must reassess
the sentence. Courts of Criminal Appeals (CCAs) can often “modify sentences
‘more expeditiously, more intelligently, and more fairly’ than a new court-
martial[.]” United States v. Winckelmann, 73 M.J. 11, 15 (C.A.A.F. 2013)
(quoting Jackson v. Taylor, 353 U.S. 569, 580 (1957)). In such cases, CCAs
“act with broad discretion when reassessing sentences.” Id.Reassessing a sentence is only appropriate if we are able to reliably
determine that, absent the error, the sentence would have been at least of a
certain magnitude. United States v. Harris, 53 M.J. 86, 88 (C.A.A.F. 2000). A
reassessed sentence must not only “be purged of prejudicial error [but] also
must be ‘appropriate’ for the offense involved.” United States v. Sales, 22 M.J.
305, 308 (C.M.A. 1986).
Under all the circumstances presented, we find that we can reassess the
sentence and that it is appropriate for us to do so. The penalty landscape is
unchanged. The maximum punishment remains life without the possibility of
parole, and setting aside “on divers occasions” language in one specification
does not lessen the appellant’s punitive exposure. Moreover, we have
sufficient experience and familiarity with child sexual abuse offenses to
determine reliably what sentence would have been imposed at trial. Finally,
although the appellant was sentenced by members, the remaining convictions
for rape, sodomy, indecent acts and indecent liberties capture the gravamen
of the appellant’s criminal misconduct. Indeed, the members sentenced the
11
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appellant based on evidence of a single incident of kissing Veronica. See
Winckelmann, 73 M.J. at 15-16.
Taking these facts as a whole, we can confidently and reliably determine
that, absent the error, the members would have imposed the same sentence.
We also conclude that the adjudged sentence is an appropriate punishment
for the modified offenses and this offender—thus satisfying the Sales
requirement that the reassessed sentence not only be purged of error, but
appropriate. Sales, 22 M.J. at 308.
III. CONCLUSION
The guilty finding to Specification 2 of Charge III is affirmed except for
the words “on divers occasions.” The remaining findings and the sentence as
approved by the CA are also affirmed.
Senior Judge CAMPBELL and Judge RUGH concur.
For the Court
R.H. TROIDL
Clerk of Court
12