United States v. Lesh

U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
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No. 201700247
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UNITED STATES OF AMERICA
Appellee
v.
MICHAEL A. LESH
Staff Sergeant (E-6), U.S. Marine Corps
Appellant
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Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Lieutenant Colonel Brian Kasprzyk, US MCR.
Convening Authority: Commanding Officer, 9th Marine Corps
District, Great Lakes, IL.
Staff Judge Advocate’s Recommendation: Lieutenant Jeffrey V.
Munoz, USMC.
For Appellant: Lieutenant Colonel Lee C. Kindlon, USMCR.
For Appellee: Lieutenant Kimberly Rios, JAGC, USN ; Captain Sean
M. Monks, USMC.
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Decided 9 January 2018
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Before H UTCHISON , FULTON, and S AYEGH , 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, consistent with his pleas, of a violation of a lawful general order,
reckless operation of a vehicle, being found drunk on duty, two specifications
of assault consummated by a battery, and being drunk and disorderly, in
violation of Articles 92, 111, 112, 128, and 134, Uniform Code of Military
United States v. Lesh, No. 201700247
Justice (UCMJ). 10 U.S.C. §§ 892, 911, 912, 928, and 934 (2016). The military
judge sentenced the appellant to eight months’ confinement, reduction to pay
grade E-1, and a bad-conduct discharge. Pursuant to a pretrial agreement,
the convening authority disapproved the confinement and approved the
remainder of the sentence, ordering the reduction executed.
The appellant assigns one error pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982). He argues a sentence that extends to a bad-conduct
discharge is inappropriately severe. We disagree. Finding no error materially
prejudiced the appellant’s substantial rights, we affirm. Art. 59(a), UCMJ.
I. BACKGROUND
The appellant served for almost 13 years in the Marine Corps, achieving
the rank of staff sergeant (SSgt). His service history includes one deployment
and no negative disciplinary history. His personal awards include two Navy
and Marine Corps Commendation Medals, three Navy and Marine Corps
Achievement Medals, and three Good Conduct Medals. He also qualified as
“expert” with both his service rifle and pistol, and achieved first-class
physical and combat fitness tests scores.
The appellant’s record, however, is marred by the serious offenses to
which he pleaded guilty. At the time of his misconduct, the appellant was
serving as a recruiter attached to Recruiting Station Twin Cities. In
November 2016, he and another recruiter, SSgt SL, drove a AB, a female
prospective Marine, in a government vehicle to a Military Entrance
Processing Station (MEPS) some distance away. The purpose of the trip was
to take AB to the MEPS for testing in the afternoon. The three planned to
spend the night in a hotel, and then have AB complete her MEPS processing
in the morning. Then they were to return to the Minneapolis area where they
were stationed.
The three spent the night in the hotel. At breakfast the next morning, the
appellant drank two cocktails. While he and SSgt SL waited for AB to finish
at MEPS, he went to a bar and drank three to four more cocktails. After AB
finished at MEPS, the appellant drove the three of them to another bar and
continued to drink. Next they went to a restaurant. The appellant then drove
AB to yet another bar, where he consumed approximately nine more drinks,
and provided alcohol to and danced with AB. While dancing, he attempted to
touch AB’s buttocks several times. When AB got up to use the bathroom, the
appellant walked with her, put his hand down the back of her pants and
under her underwear, and touched her buttocks. AB grabbed the appellant’s
hands and told him to keep them in an appropriate place. Even though AB
told the appellant not to touch her, he continued to try to put his hand in her
pants and touch her buttocks. He also attempted to kiss her.
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United States v. Lesh, No. 201700247
The appellant started to drive AB and SSgt SL home, but failed to control
the government van and damaged another vehicle. The appellant did not stop
his vehicle after the accident. Ultimately, AB had to drive the government
vehicle to a hotel in Sioux Falls, South Dakota, as the appellant was too
intoxicated to drive back to Minneapolis. At the hotel, the appellant punched
SSgt SL in the face.
II. DISCUSSION
Under Article 66(c), UCMJ, we independently reviews sentences within
its purview and only approves that part of a sentence which it finds should be
approved. United States v. Baier, 60 M.J. 382, 383-84 (C.A.A.F. 2005).
“Sentence appropriateness involves the judicial function of assuring that
justice is done and that the accused gets the punishment he deserves.” United
States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988). This requires “‘individualized
consideration’ of the particular accused ‘on the basis of the nature and
seriousness of the offense and character of the offender.’” United States v.
Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (quoting United States v. Mamaluy,
27 C.M.R. 176, 180-81 (C.M.A. 1959)). While this court has a great deal of
discretion in determining whether a particular sentence is appropriate, we
are not authorized to engage in exercises of clemency, as that is left to
“command prerogative.” Healy, 26 M.J. at 395-96.
We have reviewed the entire record and given consideration to the
appellant’s service record and the other evidence in extenuation and
mitigation. We have also considered the nature and number of offenses in
this case—a case that represents a significant departure from the conduct
expected of senior noncommissioned officers. The appellant was a staff
sergeant of Marines entrusted with the welfare of a prospective Marine. He
instead assaulted her and risked her safety by driving a government vehicle
while intoxicated with her as a passenger. Based on our review of the entire
record, we are convinced that the sentence as approved by the convening
authority is appropriate and that no corrective action is warranted.
III. CONCLUSION
The findings and sentence are affirmed.
For the Court
R.H. TROIDL
Clerk of Court
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