United States v. Oakley

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
F.D. MITCHELL, J.A. FISCHER, K.M. MCDONALD
Appellate Military Judges
UNITED STATES OF AMERICA
v.
RONNIE G. OAKLEY, JR.
INFORMATION SYSTEMS TECHNICIAN
THIRD CLASS (E-4), U.S. NAVY
NMCCA 201200299
GENERAL COURT-MARTIAL
Sentence Adjudged: 13 September 2013.
Military Judge: CAPT Andrew Henderson, JAGC, USN.
Convening Authority: Commander, Navy Region Northwest,
Silverdale, WA.
Staff Judge Advocate's Recommendation: LCDR D.E. Rieke,
JAGC, USN.
For Appellant: LT Jennifer Myers, JAGC, USN.
For Appellee: LCDR Keith B. Lofland, JAGC, USN; Capt Cory
Carver, USMC.
21 April 2015
---------------------------------------------------
OPINION OF THE COURT
---------------------------------------------------
THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
FISCHER, Senior Judge:
This case is before us for a second time. In March 2012, a
general court-martial consisting of officer and enlisted members
convicted the appellant, contrary to his pleas, of aggravated
sexual assault and committing an indecent act in violation of
Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920.
The members sentenced the appellant to three months’ confinement,
forfeiture of all pay and allowances, reduction to pay grade E-1,
and a bad-conduct discharge. On the first appeal, we set aside
the findings and sentence due to instructional error. United
States v. Oakley, No. 201200299, 2013 CCA LEXIS 245, unpublished
op. (N.M.Ct.Crim.App. 26 Mar 2013).
At a rehearing in September 2013, a general court-martial
consisting of officer and enlisted members again convicted the
appellant, contrary to his pleas, of one specification each of
aggravated sexual assault and committing an indecent act, in
violation of Article 120, UCMJ. The appellant was sentenced to
reduction to pay grade E-1, forfeiture of all pay and
allowances, five years’ confinement, and a dishonorable
discharge. The convening authority (CA) approved only so much
of the sentence as was adjudged at the appellant’s first court-
martial and, except for the punitive discharge, ordered the
sentence executed.
The appellant raises eight assignments of error (AOE). 1
After carefully considering the record of trial, the submissions
1
The appellant raises the following AOEs:
I. The findings from his original trial were ambiguous and unreviewable and
thus subjected him to double jeopardy at his rehearing.
II. The military judge abused his discretion by denying the defense challenge
for cause against LT S.
III. The military judge abused his discretion by failing to declare a
mistrial when a defense witness provided less favorable presentencing
testimony at the rehearing after members of his command admonished him for
favorable comments he made about the appellant during the original trial.
IV. The military judge erred in finding no apparent unlawful command
influence.
V. The military judge erred in admitting into evidence the appellant’s
statements to Naval Criminal Investigative Service (NCIS) agents.
VI. The military judge erred by admitting evidence that the appellant
previously sexually assaulted the victim when he was twelve years old.
VII. The military judge erred by permitting the victim’s mother to testify
that the victim told her the appellant “attacked” her as an excited
utterance. We find no merit to this AOE. United States v. Clifton, 35 M.J.
79, 81-82 (C.M.A. 1992).
VIII. The military judge erred by failing to dismiss Specification 1 of the
sole Charge when the members in the original trial necessarily acquitted the
appellant of all of the elements of aggravated sexual assault.
2
of the parties, and oral argument 2, we are convinced that the
findings and sentence are correct in law and fact and that no
error materially prejudicial to substantial rights of the
appellant occurred. Arts. 59(a) and 66(c), UCMJ.
I. Background
The appellant's conviction arose from an incident with his
then 19-year-old stepsister, Culinary Specialist Third Class (CS3)
FC, on 29 April 2011. That evening, the appellant, CS3 FC, and
other members of their family were drinking alcohol together for
several hours in the home of the appellant’s father and step-
mother. Later that evening, CS3 FC fell asleep on a recliner in
the den of the home. Sometime after she fell asleep, the appellant
entered the den and digitally penetrated her vagina while he
masturbated.
Following these events, agents from the Naval Criminal
Investigative Service (NCIS) interrogated the appellant. During
the interrogation, the appellant provided both a handwritten and
typed statement detailing his recollection of the evening. 3 In his
statements, he admitted that he may have digitally penetrated CS3
FC’s vagina while she lay sleeping on the recliner; however, he
also indicated that he thought she acquiesced when she “open[ed]
her legs wider.” 4
At the appellant’s first trial CS3 FC testified that the
appellant entered the den three separate times while she lay in the
recliner sleeping. However, she testified that he sexually
assaulted her only during the first and third instances. She
testified that second instance was when she awoke to the appellant
smoking a cigarette. At the conclusion of evidence, the military
judge entered findings of not guilty to the words “on divers
occasions” in each of the three Article 120 offenses (aggravated
sexual assault, wrongful sexual contact, and indecent act). The
military judge subsequently directed that the findings worksheet
specify findings by delineating the two instances for the three
Article 120 offenses with the “smoking of the cigarette as the
focal point.” 5 The members found the appellant not guilty of any
2
On 10 December 2014 we heard oral argument on the appellant’s first AOE.
3
Prosecution Exhibits 8 and 10.
4
PE 10 at 1.
5
*Original Record at 681, 771-80; *Appellate Exhibit LVIII. All citations
referencing the first court-martial record will be designated with an (*).
3
offense during the first instance and guilty of aggravated sexual
assault and indecent act during the latter instance. 6
At the second trial, presided over by a different military
judge, CS3 FC testified that she awoke to the smell of smoke and
observed the appellant sitting in a chair smoking a cigarette. 7
When she asked why he was not smoking out on the “front stoop,” the
appellant replied, “Oh, I’m sorry. I forgot,” and she assumed that
he then left the room.8 CS3 FC testified that she next awoke to the
appellant removing the comforter from her legs, moving her underwear
and shorts to the side, and penetrating her vagina with his fingers. 9
She testified that the appellant licked her vagina and then
unsuccessfully attempted to penetrate her vagina with his penis. CS3
FC stated that he then “continued to penetrate [her] with his
fingers” and lick her vagina. 10 CS3 FC testified that the appellant
masturbated while he performed these sexual acts on her. 11
Additional facts necessary for the resolution of particular
assignments of error are included below.
II. Double Jeopardy
The appellant avers, for the first time, that the military
judge’s findings of “not guilty” to the words “on divers
occasions” in his first court-martial led to an ambiguous
verdict and, thus the rehearing was held in violation of the
double jeopardy clause. Moreover, the appellant maintains that
the ambiguous verdict in the first trial coupled with the double
jeopardy clause violation at the rehearing precludes our Article
66, UCMJ, review of the appellant’s convictions for
Specifications 1 and 2 of the sole Charge.
A. Background
The pertinent specifications at the second trial are as
follows:
6
*AE LVIII.
7
Record at 645.
8
Id. at 648.
9
Id.10
Id. at 653-55.
11
Id. at 657
4
Specification 1: In that [appellant], on active duty, did,
at or near [location], on divers occasions, on or about 30
April 2011, engage in a sexual act, to wit: penetration of
the genital opening with his finger of [CS3 FC], who was
substantially incapable of declining participation in the
sexual act.
Specification 2: In that [appellant], on active duty, did,
at or near [location], on divers occasions, on or about 30
April 2011, wrongfully commit indecent conduct, to wit:
masturbating in the presence of [CS3 FC] without the
consent of the said [CS3 FC].
At the appellant’s first trial, the trial defense counsel
filed a motion to dismiss for multiplicity and unreasonable
multiplication (UMC) of charges, arguing:
[A]ll of this conduct occurred in a short time span,
at the same location, and was essentially the same act
that may have occurred on “divers” occasions. The
government cannot claim that these acts were related
to separate instances of conduct as each charge
alleges “on divers” occasions and {CS3 FC} claims each
act occurred simultaneously on these divers occasions.
These specifications are not aimed at separate
criminal acts. 12
The following discussion then took place on the record:
DC: . . . As far as unreasonable multiplication of
charges, these charges all stem from the same
incident, one intent, one course of conduct, and we
believe that they’re unreasonable for even this
purpose of----
MJ: Well, did I mishear the evidence? I mean there
seem to be at least two, if not three, different
episodes in the late hours of the 29th/early hours of
the 30th.
DC: Sir, but the way that the government has charged
it is on divers occasions, in--indicating that those
different acts are all in each one of those
specifications. 13
12
*AE IV at 8.
13
*Record at 678-80.
5
Later, the military judge stated:
There is an easy way out for me, and that is simply to
enter a finding of not guilty with respect to the
words “on divers occasions;” I’m not sure that that
gives the defense everything that it wants because it,
then, has three standalone offenses on there, but it
does remove any kind of Walter—Walters and Seider
problem, and I think it actually fairly describes what
happened on the 30th of
April. 14
The military judge then entered findings of “not guilty” to the
words “on divers occasions” with respect to the pertinent
charges. 15
The military judge subsequently clarified his findings to
the members:
What I have done is I have entered a not-guilty
finding with regard just to that language, “on divers
occasions,” which means more than once. The evidence
that has come in might allow you to find [the
appellant] guilty of each of those specifications on
one occasion, but . . . the evidence will not allow
you to find him guilty of doing those things more than
once, so that’s why I’ve entered the finding of not
guilty with respect to the words “on divers
occasions.” 16
After the court closed for deliberations, the military
judge held an Article 39(a), UCMJ, session outside the members’
presence during which he stated that when he ruled on the
defense’s UMC motion and removed the words “on divers occasions”
from the specifications, he “actually complicated things from a
Walters and Seider, what can the Court of Criminal Appeals
review under an Article 66(c) standpoint because there is
credible evidence . . . that there may have been two instances
where [the appellant] was in the den masturbating.” 17 The
military judge decided to break down the alleged misconduct
14
*Id. at 680.
15
*Id.
16
*Id. at 696.
17
*Id. at 757.
6
further on the final findings worksheet, stating that “the safe
course of action here which will best preserve the appellate
record . . . is to break down all of the offenses alleged in the
Charge.” 18 The military judge then recalled the members and
instructed them on the new findings worksheet.
The final findings worksheet allowed the members to specify
any guilty findings for each offense for conduct that occurred
“before the cigarette,” “after the cigarette,” or “before and
after the cigarette.” 19 The members found the appellant guilty
of both the aggravated sexual assault and indecent act “after
the cigarette.” 20
B. Discussion
The predicate legal issue in this AOE is whether the
appellant’s rehearing violated double jeopardy principles.
The Double Jeopardy Clause of the U.S. Constitution is directed
at the threat of multiple prosecutions or sentences for the same
offense. It does not matter whether the accused was acquitted
or convicted of that offense in the prior trial. United States
v. Leak, 61 M.J. 234, 242-43 (C.A.A.F. 2005). “The underlying
idea . . . is that the State . . . should not be allowed to make
repeated attempts to convict an individual for an alleged
offense, thereby subjecting him to embarrassment, expense and
ordeal and compelling him to live in a continuing state of
anxiety and insecurity . . . .” Green v. United States, 355
U.S. 184, 187-88 (1957).
This concept is also applied to military personnel through
Article 44(a), UCMJ, which provides: “No person may, without his
consent, be tried a second time for the same offense.” RULE FOR
COURTS-MARTIAL 907(b)(2)(C), MANUAL FOR COURTS-MARTIAL, UNITED STATES
(2012 ed.) also provides: “A charge or specification shall be
dismissed upon motion made by the accused before the final
adjournment of the court-martial in that case if . . . [t]he
accused has previously been tried by court-martial . . . for the
same offense . . . .” “However, these rights may be waived,
since RCM 907(b)(2) is designated as ‘[w]aivable grounds.’”
United States v. Collins, 41 M.J. 428, 429 (C.A.A.F. 1995).
18
*Id. at 781.
19
*AE LVIII
20
*Id.
7
Waiver is the “intentional relinquishment or abandonment of
a known right,” which precludes appellate review of an issue;
forfeiture is “the failure to make the timely assertion of a
right” leading to plain error review on appeal. United States
v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (quoting United
States v. Olano, 507 U.S. 725, 733 (1993)) (internal quotation
marks omitted). The record reveals no indication that the
appellant ever knowingly, voluntarily, and intelligently waived
a double jeopardy claim. However, at his rehearing, the
appellant failed to raise a former jeopardy claim based on the
military judge’s finding of not guilty to the words “on divers
occasions” at his first court-martial. 21
Our superior court has recognized a “general rule” that,
absent “unusual circumstances,” “a claim of former jeopardy must
be raised before the conclusion of the trial or it is waived.”
United States v. Schilling, 22 C.M.R. 272, 273 (C.M.A. 1957)
(citation omitted); see also Unites States v. Britton, 47 M.J.
195, 198 (C.A.A.F. 1997) (“Double jeopardy claims are waived if
not raised at trial.”) (citations omitted), overruled on other
grounds by United States v. Miller, 67 M.J. 385, 389 (C.A.A.F.
2009); United States v. Lloyd, 46 M.J. 19, 21 (C.A.A.F. 1997)
(finding “constitutional and statutory protections against
double jeopardy may be waived passively, i.e., forfeited by
failure to make a timely objection”) (citations omitted). Other
courts have similarly found waiver or forfeiture when a
defendant failed to raise a double jeopardy claim. See United
States v. Lewis, 492 F.3d 1219, 1223 (11th Cir. 2007) (holding
“that a defendant who simply failed to raise a double jeopardy
claim before the district court, and took no affirmative steps
to voluntarily relinquish the claim, forfeited that claim” and
reviewed for plain error); United States v. Whitfield, 590 F.3d
325, 370 (5th Cir. 2009) (stating “[t]he Supreme Court has made
it clear that failure to raise a double jeopardy defense in the
trial court constitutes a waiver thereof”) (citing Peretz v.
United States, 501 U.S. 923 (1991)).
The appellant had full opportunity to raise an ambiguous
verdict claim during his first court-martial appeal.
Additionally, the appellant could have raised a double jeopardy
claim, based upon an ambiguous verdict at the first court-
martial, prior to his rehearing. In both instances, the
appellant failed to make such an assertion. Applying the
court’s rationale in Lloyd and Lewis, and recognizing the
21
We also note that the appellant failed to raise such a claim in his appeal
of the first court-martial.
8
appellant did not affirmatively waive this issue, we now test
for plain error. To show plain error, the appellant must
persuade this court that: “‘(1) there was error; (2) the error
was plain or obvious; and (3) the error materially prejudiced a
substantial right of the accused.’” United States v. Tunstall,
72 M.J. 191, 193-94 (C.A.A.F. 2013) (quoting United States v.
Girouard, 70 M.J. 5, 11 (C.A.A.F. 2011)).
We find no plain error in this case. At the appellant’s
first court-martial, the military judge found the appellant “not
guilty” of the words “on divers occasions” for three
specifications while considering the defense motion alleging
multiplicity and an unreasonable multiplication of charges. The
judge then advised the members that the appellant could only be
found guilty of violating each specification on “one occasion.”
While not speculating on the military judge’s motivation to
address the defense’s multiplicity/UMC contention in this
unusual fashion, we do note that the alleged conduct took place
on the same date, over a matter of hours, with arguably the same
continuing intent. See R.C.M. 307(c)(4) (“What is substantially
one transaction should not be made the basis for an unreasonable
multiplication of charges against one person.”); United States
v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001). The members’
findings specifically evince that they found the appellant
guilty of a single aggravated sexual assault and a single act of
indecent conduct, both occurring “after the cigarette.” 22 Given
these circumstances, we are convinced that the military judge at
the appellant’s rehearing did not plainly err in failing to sua
sponte conclude that the findings from the appellant’s first
court-martial, findings which we set aside on other grounds,
were ambiguous and therefore the rehearing violated double
jeopardy prohibitions.
C. Alleged Ambiguous Findings at the Rehearing
The appellant further alleges on appeal that there were two
occasions of potential aggravated sexual assault and indecent
conduct committed “after the cigarette”: (1) before the
appellant attempted penile penetration, and (2) after the
attempted penile penetration. He thus argues that since the
members found him guilty of conduct “after the cigarette,” their
verdict is ambiguous because there were two separate occasions
of aggravated sexual assault and indecent conduct “after the
cigarette.”
22
*AE LVIII.
9
However, we find these episodes were a part of the same
ongoing sexual offenses charged in the specifications under the
charge. The testimony adduced at trial showed the appellant
engaged in one continuing course of conduct after the cigarette,
despite his alleged penetration attempt. 23
III. Challenge for Cause
The appellant next argues that the military judge abused
his discretion by denying the defense challenge for cause
against LT S.
During voir dire, LT S disclosed he was raped by a 14-year-
old boy when he was 4 years old. 24 He stated that his prior
childhood experiences would not impact his ability to be a fair
and impartial member in the case, even if any evidence presented
involved child sexual abuse. 25
He also stated he thought “consuming alcohol to the point
of intoxication . . . removes your ability to consent” and that
someone legally unable to operate a motor vehicle would be
legally incapable of consenting to a sexual act. 26 Upon further
questioning by trial defense counsel, LT S clarified that he
believed whether someone’s having sexual intercourse with an
intoxicated person was a crime “would entirely depend on all the
facts” and “[t]he simple acts of sex occurring between two
people that have been drinking, perhaps to the point of
intoxication, no, I don’t think that that in and of itself makes
it a crime.” 27 He later said that he stood by his clarifying
answer. 28 Finally, he spoke about his father’s physical abuse of
his mother and his wife’s physical abuse by a former husband. 29
23
The appellant was acquitted of the alleged penile penetration at his
original trial.
24
Record at 479.
25
Id. at 484.
26
Id. at 480-81.
27
Id. at 481.
28
Id. at 483.
29
Id. at 476, 478. With regard to his father’s domestic abuse, LT S stated
it happened at least 27 years earlier, that his parents divorced when he was
four and that his father has been sober for more than 20 years. LT S also
stated that he maintains a good relationship with both his parents.
10
The defense challenged LT S for cause, citing implied bias
based solely on LT S being a prior victim of a sexual assault. 30
Referencing the liberal grant mandate and finding no implied
bias, the military judge denied the defense’s challenge of LT
S. 31
The military judge found LT S was “completely candid and
forthright,” could not remember many details regarding the
sexual assault when he was four years old, had received therapy,
did not participate in the assailant’s trial, stated he
“harbor[ed] no resentment,” and “said that period of his life
has passed.” 32 The military judge further found that the mere
fact that an assault was part of his history “in and of itself
does not give me pause for concern or an ability to find implied
bias, particularly given [LT S’s] candor and demeanor before the
court.” 33
A court member must be excused for cause whenever it
appears that the member “[s]hould not sit as a member in the
interest of having the court-martial free from substantial doubt
as to legality, fairness, and impartiality.” R.C.M.
912(f)(1)(N). “R.C.M. 912 encompasses challenges based upon
both actual bias and implied bias.” United States v. Townsend,
65 M.J. 460, 463 (C.A.A.F. 2008) (citations omitted).
The standard of review for implied bias is “less
deferential than abuse of discretion, but more deferential than
de novo review.” United States v. Moreno, 63 M.J. 129, 134
(C.A.A.F. 2006). However, military judges who place their
reasoning on the record and consider the liberal grant mandate
will receive more deference on review. United States v. Clay,
64 M.J. 274, 277 (C.A.A.F. 2007). Here, the military judge
recognized and applied the liberal grant mandate and articulated
his analysis on the record, and his ruling will therefore be
given greater deference.
Regarding his wife’s former abusive relationship, LT S said that his wife did
not harbor “any kind of lingering victim mentality.”
30
Id. at 586.
31
Id. at 587-88. The military judge granted two of four challenges for cause
by the trial defense counsel.
32
Id.33
Id. at 588.
11
The test for implied bias is objective. Viewing the
situation through the eyes of the public and focusing on the
perception of fairness in the military justice system, we ask
whether there is too high a risk that the public will perceive
that the accused received less than a court composed of fair and
impartial members. United States v. Wiesen, 56 M.J. 172, 176
(C.A.A.F. 2001). Notwithstanding a member’s disclaimer of bias,
there is implied bias when “most people in the same position
would be prejudiced.” United States v. Napolitano, 53 M.J. 162,
167 (C.A.A.F. 2000) (citation and internal quotation marks
omitted). “Challenges for actual or implied bias are evaluated
based on a totality of the circumstances.” United States v.
Richardson, 61 M.J. 113, 118 (C.A.A.F. 2005) (citing United
States v. Strand, 59 M.J. 455, 459 (C.A.A.F. 2004)).
“There is no per se rule that a panel member must be
excused because he or she has been the victim of a similar
crime.” United States v. Castillo, 74 M.J. 39, *7 (C.A.A.F.
2015) (citing United States v. Smart, 21 M.J. 15, 19 (C.M.A.
1985)). A panel member's experience as a victim of a crime
similar in theme or close in time to the charged offense may, in
some cases, present an issue of implied bias. United States v.
Daulton, 45 M.J. 212, 217 (C.A.A.F. 1996). Here, we find no
such issue.
LT S unequivocally stated that his prior childhood
experiences would not impact his ability to be a fair and
impartial member in the case, even if any evidence presented
involved child sexual abuse. 34 Regarding his prior sexual
assault, he candidly said, “Looking back on it, he was a 14-
year-old boy with raging hormones. . . . I’ve had a lot of time
to kind of deal with it and get over it . . . I don’t harbor any
kind of resentment or anger. It’s a period of my life, though,
that just happened.” 35
We conclude that, viewed objectively, a member of the
public would not question the fairness of LT S sitting as a
panel member. Considering the totality of the circumstances, we
find that the public would perceive this panel to be fair and
impartial and conclude that the military judge did not err in
denying the defense’s challenge against LT S based on implied
bias.
34
Id. at 484.
35
Id. at 480.
12
IV. Unlawful Command Influence
We address the appellant’s third and fourth AOEs concerning
unlawful command influence (UCI) together. The appellant’s
third AOE avers that the military judge abused his discretion by
failing to declare a mistrial after a witness changed portions
of his testimony from the first court-martial. The witness
revealed that his commanding officer and senior enlisted leader
counseled him following his favorable testimony for the
appellant. The appellant’s fourth AOE states the military judge
erred in finding no apparent UCI when the Navy’s most senior
leaders have widely publicized their preferred outcomes for
sexual assault cases.
A. Law
The defense has the burden of raising the issue of UCI.
United States v. Reed, 65 M.J. 487, 488 (C.A.A.F. 2008) (citing
United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999)). On
appeal, the defense must present “some evidence” of unlawful
command influence, showing (1) “facts which, if true, constitute
unlawful command influence,” (2) “the proceedings were unfair,”
and (3) “unlawful command influence was the cause of the
unfairness.” Biagase, 50 M.J. at 150 (citations and internal
quotation marks omitted). “[O]nce the issue of unlawful command
influence is raised, the Government must prove beyond a
reasonable doubt: (1) that the predicate facts do not exist; or
(2) that the facts do not constitute unlawful command influence;
or (3) that the unlawful command influence did not affect the
findings and sentence.” Id. at 151.
“Where the issue of unlawful command influence is litigated
on the record, the military judge’s findings of fact are
reviewed under a clearly-erroneous standard, but the question of
command influence flowing from those facts is a question of law
that [the] Court reviews de novo.” Reed, 65 M.J. at 488
(C.A.A.F. 2008) (quoting United States v. Wallace, 39 M.J. 284,
286 (C.M.A. 1994)). The military judge’s remedies for unlawful
command influence are reviewed for an abuse of discretion.
United States v. Douglas, 68 M.J. 349, 354 (C.A.A.F. 2010).
We look favorably upon a military judge’s “proactive,
curative steps to remove the taint of unlawful command influence
and ensure a fair trial.” Id. (citation omitted). Dismissal
“is a drastic remedy and courts must look to see whether
alternative remedies are available.” United States v. Gore, 60
M.J. 178, 187 (C.A.A.F. 2004) (citations omitted). “When an
13
error can be rendered harmless, dismissal is not an appropriate
remedy.” Id. (citation omitted).
B. Chief F’s Testimony
Chief F testified as a defense witness on the merits and on
sentencing in both of the appellant’s trials. In both trials,
Chief F presented good military character evidence on the
merits. 36 In sentencing at the appellant’s rehearing, Chief F
stated he would work with the appellant “any day” “[o]utside of
the Navy” 37; whereas, in the appellant’s original trial, Chief F
testified that he would work with the appellant again in the
Navy “in a heartbeat.” 38
Chief F testified that his sentencing testimony had changed
because Chief F’s senior enlisted leader and commanding officer
counseled him shortly after his testimony in the appellant’s
first trial that “a convicted sex offender is not in the value
of the U.S. Navy” and he was an “inexperienced chief” for
testifying otherwise. 39 Chief F further testified that he
believed his career would be negatively impacted if he had not
changed his testimony at the rehearing. 40 Trial defense counsel
raised a UCI motion at that time and requested dismissal of the
charges with prejudice. 41
The military judge, finding “no indication that [Chief F’s]
command . . . had any idea that he was going to testify again,”
found no actual UCI, but held there was apparent UCI. 42
Additionally, the military judge found there was no “evidence it
affected the merits.” 43 The military judge determined that an
appropriate remedy could be crafted since Chief F had testified
36
*Record at 660-67. Record at 1039-53.
37
Record at 1178.
38
*Record at 820-22.
39
Record at 1191-93. The appellant’s father, a retired master chief petty
officer, had contacted the appellant’s command and about Chief F’s support
for the appellant.
40
Id. at 1196.
41
Id. at 1207.
42
Id. at 1212-13.
43
Id. at 1213.
14
previously. 44 He gave the defense two options: put Chief F back
on the witness stand to supplement his prior testimony or give
the members a transcript of his prior testimony and an
appropriate instruction. 45 The defense chose the latter option. 46
Prior to the sentencing arguments, the military judge instructed
the members:
At the previous trial, Chief [F], who testified
on behalf of [the appellant], he testified at the
first trial, as well as testifying here. After his
testimony here, the court learned his previous
testimony at the first trial had been even more
supportive than it was here at this trial. The court
also learned that . . . after his testimony at the
first trial, he was counseled by senior leadership at
his command for being too supportive. That is beyond
inappropriate. That is what we call unlawful command
influence, and how or if that behavior is dealt with
externally is beyond our purview.
What is within our purview, however, is the
mandate that Petty Officer Oakley receive an
absolutely fair trial and sentencing hearing, so to
that end, I am going to provide each of you with a
copy of Chief [F]’s prior testimony from the last
trial, and I’m going to direct that each of you read
it prior to beginning any deliberations today on a
fair sentence. You will take that back with you.
Do you all understand that and agree that you
will read that in its entirety before beginning any
discussions or deliberations on sentence? If that’s
accurate, please raise your right hand. 47
The members responded in the affirmative. 48
In his sentencing instructions, the military judge
stated:
44
Id.
45
Id. at 1213.
46
Id. at 1215.
47
Id. at 1225
48
Id.
15
. . . but for conduct that constituted unlawful
command influence, a defense witness would have
provided more favorable testimony during presentencing
proceedings, specifically testimony that the accused
should be retained in the Navy. You should consider
the witness’ testimony, Chief [F], that the accused be
retained in the Navy during your sentencing
deliberations.
Additionally, you may infer that the United
States, represented in this court-martial by the
prosecution, is responsible for that unlawful command
influence. As I told you at the outset of the court-
martial, no person may unlawfully influence this
proceeding or any other military-justice proceeding.
In reaching your sentence in this case, you may, in
your discretion, provide the accused relief in the
form of a less-severe sentence because of this
unlawful command influence. 49
Chief F’s prior testimony was marked as an appellate exhibit and
given to the members to consider during sentencing. 50
Here, the military judge appropriately found apparent UCI
as it related to Chief F’s testimony during presentencing
proceedings. Like the military judge, we find no evidence on
the record that Chief F’s testimony on the merits was impacted
by UCI. 51 As such, the military judge crafted an appropriate
remedy of providing the members with Chief F’s prior testimony,
attributing the UCI to the Government, and telling the members
they could grant relief in sentencing as a result.
The defense asks us to compare this case to that of United
States v. Gore, 60 M.J. 178 (C.A.A.F. 2004), where a commanding
officer prevented a chief from testifying and other potential
defense witnesses from providing good character evidence on
behalf of Gore at his pending court-martial, thus justifying a
full dismissal of the charges against the appellant. However,
Gore is inapposite. Unlike in that case, Chief F was not
prevented from testifying and still testified very positively on
49
Id. at 1245-46.
50
AE LXXXVI.
51
The trial defense counsel conceded there was no evidence of UCI concerning
Chief F on the merits. Record at 1207.
16
the appellant’s behalf as he had at the first court-martial.
Moreover, the military judge provided a transcript of Chief F’s
testimony from the original court-martial and highlighted the
changes in his testimony to the members while clearly
instructing them as to how they must view that change in
testimony. Accordingly, under the circumstances of this case,
we conclude that the military judge did not abuse his discretion
in the remedies he provided the appellant.
C. Statements from Military Leaders
Prior to trial, the trial defense counsel argued a UCI
motion which focused on the media attention surrounding comments
made by military leaders concerning sexual assault. 52 The
military judge found the defense presented “some evidence” of
unlawful command influence due to the “significant and vocal
attention” surrounding sexual assaults in the military context. 53
However, the military judge did not find either actual or
apparent UCI because the “prevailing theme of the comments is to
remind subordinate leaders of the importance of holding their
subordinates appropriately accountable for their actions.” 54 At
trial, the military judge allowed liberal voir dire and read the
memorandum from the Secretary of Defense dated August 6, 2013 to
the members. 55
With regard to senior military leaders’ comments on sexual
assault cases in the military context, the defense failed to
present any evidence creating a nexus between the appellant’s
trial and those statements. Upon the military judge’s
questioning, all of the members affirmatively responded when
asked whether they could consider the full range of punishments,
including no punishment. 56 Assuming arguendo the defense
presented enough evidence to shift the burden to the Government,
the military judge’s curative actions of liberal voir dire and
reading the Secretary of Defense’s memorandum were adequate and
appropriate.
52
AE XI.
53
AE LV at 4.
54
Id. at 4-5.
55
Record at 404-06.
56
Id. at 420.
17
We hold that the Government has met its burden of
demonstrating beyond a reasonable doubt that the fairness of the
court-martial proceedings was not compromised by UCI. See
United States v. Simpson, 58 M.J. 368, 376 (C.A.A.F. 2003).
V. Motion to Suppress the Appellant’s NCIS Statements
The appellant’s fifth AOE avers that the military judge
erred in admitting the appellant’s statements to NCIS because
the NCIS agent failed to adequately inform the appellant of the
allegations against him before the appellant waived his Article
31(b), UCMJ, rights. We hold that the military judge did not
abuse his discretion in admitting the appellant’s NCIS
statements.
During the appellant’s NCIS interrogation, Special Agent
(SA) Y asked the appellant if he knew why he was there. 57 The
appellant responded that he did not. SA Y then stated that an
event took place at his father’s house that was subsequently
reported. 58 When the appellant still seemed confused, SA Y
presented him with an Article 31(b) waiver identifying the
suspected crime as “indecent assault” under Article 134, UCMJ. 59
The appellant replied that he understood what indecent assault
was. 60 SA Y further stated that an incident occurred between the
appellant and his stepsister at a family gathering on April 29. 61
The appellant asked, “What happened?” 62 SA Y replied, “Would you
like to talk to us?” 63 The appellant then said he wanted to know
what was “going on” and agreed to waive his rights. Shortly
thereafter, SA Y said they had information that he may have had
a “sexual interaction with [his] stepsister.” 64
The trial defense counsel moved to suppress the appellant’s
statements made after this rights waiver. The military judge
denied this motion, finding the appellant understood the rights
57
PE 6 at 08:35.
58
Id. at 08:36.
59
PE 7.
60
PE 6 at 08:37.
61
Id. at 8:38.
62
Id.63
Id.64
Id. at 08:40.
18
advisement. 65 The military judge also found the advisement of
“indecent assault,” although outdated at the time of the
interview, was adequate to identify “an offensive touching of a
sexual nature.” 66 He further found that SA Y “was not trying to
avoid the sexual nature of the suspected offense,” but “simply
failed in her attempt to use the most precise UCMJ article to
describe the allegation. 67
A military judge’s ruling on a motion to suppress is
reviewed for an abuse of discretion. United States v. Young, 49
M.J. 265, 266-67 (C.A.A.F. 1998). However, we review whether a
rights advisement is consistent with applicable rights warning
requirements de novo. United States v. Simpson, 54 M.J. 281,
284 (C.A.A.F. 2000). A suspect does not have to be advised of
every possible charge under investigation or the most serious or
any lesser-included charges being investigated. Id.“Nevertheless, the accused or suspect must be informed of the
general nature of the allegation, to include the area of
suspicion that focuses the person toward the circumstances
surrounding the event.” Id. (citations omitted).
In this case, SA Y verbally warned the appellant that he
was being questioned about indecent assault on his stepsister at
a family gathering on 29 April 2011. The charged crimes
concerned a continuous sequence of indecent acts within a day of
the date supplied by the warnings. See id. (finding factors of
adequate rights’ warnings include “whether the conduct is part
of a continuous sequence of events” and “within the frame of
reference supplied by the warnings”) (citations omitted)).
Under the circumstances, we find that the Article 31(b) warnings
sufficiently oriented the appellant to the nature of the
accusations against him and that the military judge did not
abuse his discretion in denying the defense motion to suppress.
See id.VI. Evidence of Similar Crimes
The appellant next argues the military judge erred by
admitting evidence that the appellant previously sexually
assaulted CS3 FC when they were both children. He states that
this evidence lacks relevance to a fact in issue, or, if
65
AE LIV.
66
Id. at 5.
67
Id. at 5-6.
19
relevant, any probative value was far outweighed by unfair
prejudice.
At trial, the military judge allowed CS3 FC’s testimony
that, when she was ten years old and the appellant was twelve,
she awoke in the middle of the night to the appellant lying on
top of her, her shorts pulled to the side, and the appellant
trying to penetrate her vagina with his penis. 68 Speaking of the
same incident, the appellant told NCIS that he was sleepwalking
and awoke to find himself with his pants off and on top of CS3
FC while she was in bed. 69 The military judge admitted this
evidence under MILITARY RULES OF EVIDENCE 404(b) and 413, MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2012 ed.), finding the evidence showed
a specific sexual intent, an ongoing sexual interest in CS3 FC,
and that the appellant did not mistake her identity at the time
of the sexual behavior on 30 April 2011. 70
We review “a military judge’s decision to admit evidence
for an abuse of discretion.” United States v. Solomon, 72 M.J.
176, 179 (C.A.A.F. 2013) (citing United States v. Ediger, 68
M.J. 243, 248 (C.A.A.F. 2010)). “‘The abuse of discretion
standard is a strict one, calling for more than a mere
difference of opinion. The challenged action must be arbitrary,
fanciful, clearly unreasonable, or clearly erroneous.’” United
States v. White, 69 M.J. 236, 239 (C.A.A.F. 2010) (quoting
United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F. 2010)).
MIL. R. EVID. 413(a) provides, “In a court-martial in which
the accused is charged with an offense of sexual assault,
evidence of the accused’s commission of one or more offenses of
sexual assault is admissible and may be considered for its
bearing on any matter to which it is relevant.” “[I]nherent in
M.R.E. 413 is a general presumption in favor of admission.”
United States v. Berry, 61 M.J. 91, 95 (C.A.A.F. 2005) (citation
omitted).
The “three threshold requirements for admitting evidence of
similar offenses in sexual assault cases under M.R.E. 413
[include]: (1) the accused must be charged with an offense of
sexual assault; (2) the proffered evidence must be evidence of
the accused’s commission of another offense of sexual assault;
and (3) the evidence must be relevant under M.R.E. 401 and
68
Record at 652.
69
PE 6 at 08:56.
70
AE XXXVIII.
20
M.R.E. 402.” Solomon, 72 M.J. at 179 (citations omitted). In
order to meet the second requirement, the military judge must
conclude that the members “could find by a preponderance of the
evidence that the offenses occurred.” United States v. Wright,
53 M.J. 476, 483 (C.A.A.F. 2000) (citing Huddleston v. United
States, 485 U.S. 681, 689-90 (1988)).
Once the threshold requirements are met, “the military
judge is constitutionally required to also apply a balancing
test under M.R.E. 403.” Solomon, 72 M.J. at 179-80 (citing
Berry, 61 M.J. at 95). In conducting the MIL. R. EVID. 403
balancing test, “the military judge should consider the
following non-exhaustive factors”:
strength of proof of the prior act (i.e., conviction
versus gossip); probative weight of the evidence;
potential for less prejudicial evidence; distraction
of the factfinder; time needed for proof of the prior
conduct; temporal proximity; frequency of the acts;
presence or lack of intervening circumstances; and the
relationship between the parties.
Id. at 180 (citation omitted). “When a military judge
articulates his properly conducted M.R.E. 403 balancing test on
the record, the decision will not be overturned absent a clear
abuse of discretion.” Id. (citing United States v. Manns, 54
M.J. 164, 166 (C.A.A.F. 2000)).
In this case, the appellant was charged with aggravated
sexual assault. The Government proffered evidence of the
appellant’s commission of another offense of sexual assault,
specifically attempted aggravated sexual contact or assault. 71
The military judge found that, considering the expected
testimony of CS3 FC and the appellant’s admissions concerning
the incident, there was sufficient evidence to meet the required
preponderance standard. 72 The military judge properly performed
a MIL. R. EVID. 403 analysis, considering the nine non-exhaustive
factors outlined above. 73
CS3 FC’s testimony along with the appellant’s admission is
strong evidence of the prior act. Although the appellant told
71
AE VII, Enclosure (A).
72
AE XXXVIII.
73
Id.21
NCIS that he was sleepwalking at the time, the members could
find by a preponderance of the evidence that the appellant
intentionally committed those acts. In addition, the evidence
is highly probative. The prior alleged offense and its setting
was strikingly similar to those of the charged offense, where
CS3 FC testified that the appellant moved her shorts and
underwear to the side and penetrated her vagina with his fingers
and tongue while CS3 FC was sleeping. In fact, both sexual
assaults involved FC sleeping at the time of the assault, the
appellant moving her underwear and shorts to expose her vagina,
and the appellant attempting, or succeeding, to penetrate her
vagina. The persons involved and their step-sibling
relationship remained the same on both occasions, despite their
age difference.
The two factors that favor exclusion included the ten-year
gap between the events and the lack of frequency of the prior
actions. However, the other factors weighed substantially in
favor of admission of the prior act.
The military judge found there was no less prejudicial
evidence of the appellant’s sexual interest in CS3 FC. He
considered the less prejudicial evidence of CS3 FC’s testimony
that the appellant would frequently look into her bedroom
window; however, the military judge found there was “no
reasonable inference those acts, by themselves, were motivated
by a sexual interest” in CS3 FC. 74
The length of time necessary to present these issues was
minimal because the evidence was presented through CS3 FC, who
was already testifying, and the appellant’s NCIS statement. No
other witnesses needed to be presented. The potential for
distraction was low because the fact finder had to consider the
appellant’s specific sexual intent as part of the charged
offense. Finally, the military judge properly instructed the
members with regard to the use of this evidence. 75
The appellant, citing United States v. McDonald, 59 M.J.
426, 430 (C.A.A.F. 2004), argues that, since there was no
evidence of the appellant’s mental and emotional state at the
time of the prior act, the court could not make a “meaningful
comparison” with the appellant’s state of mind on the date of
the charged sexual assault. However, McDonald, addresses
74
Id. at 8.
75
Record at 1087-88.
22
whether uncharged acts the appellant allegedly committed over
twenty years prior to trial when he was a child upon a person
who was not the charged victim were admissible under MIL. R. EVID.
404(b). 59 M.J. at 427. There, the Court of Appeals for the
Armed Forces found that the evidence of the appellant molesting
his stepsister, who was eight, when he was thirteen, was not
admissible under MIL. R. EVID. 404(b) because there was no
evidence that the appellant’s intent to molest his twelve-year-
old adopted daughter when he was an adult was similar. Id. at
430. Therefore, this case, concerning the same victim and a
similar sexual assault, is notably distinguishable from
McDonald.
Accordingly, we find the military judge did not abuse his
discretion in admitting this evidence under MIL. R. EVID. 413. 76
VII. Inconsistent Verdict
At the appellant’s rehearing, the military judge denied a
defense motion to dismiss Specification 1 of the Charge due to
issue preclusion and double jeopardy. 77 The appellant’s final
AOE avers that the military judge erred in this denial.
The Double Jeopardy Clause of the Constitution forbids
a second trial for the purpose of affording the prosecution
another opportunity to supply evidence which it failed to muster
in the first proceeding. Consequently, a finding of
insufficiency of evidence by either the trial court or an
appellate court will bar a second trial on the issue. However,
the Double Jeopardy Clause does not preclude retrial when a
conviction is set aside because of procedural error in the
proceedings leading to the conviction as occurred with the
appellant’s original trial. See Burks v. United States, 437
U.S. 1, 14 (1978); United States v. Scott, 437 U.S. 82, 90-91
(1978), and United States v. Tateo, 377 U.S. 463, 465 (1964).
Additionally, Article 66(d), UCMJ, provides statutory authority
for our Court to order a rehearing in such circumstances. 78
76
Because we hold the military judge did not abuse his discretion in
admitting this conduct under MIL. R. EVID. 413, we need not address whether
this conduct is admissible under MIL. R. EVID. 404(b). See Berry, 61 M.J. at
95; United States v. Bare, 65 M.J. 35, 37-38 (C.A.A.F. 2007).
77
AE III and Record at 220.
78
“If the Court of Criminal Appeals sets aside the findings and sentence, it
may, except where the setting aside is based on lack of sufficient evidence
in the record to support the findings, order a rehearing.” Art. 66(d), UCMJ.
23
Here, we set aside the findings and sentence of the
appellant’s original trial due to instructional error. Oakley,
2013 CCA LEXIS 245. We also authorized a rehearing. Id. at
*26-27.
At the appellant’s rehearing, he was tried for and
convicted of aggravated sexual assault and committing an
indecent act, the identical offenses for which he was convicted
at his original trial. However, at his original trial the
appellant was also charged with, but acquitted of, wrongful
sexual contact. 79 In this AOE, the appellant asserts that his
original conviction for aggravated sexual assault was
inconsistent with his acquittal of wrongful sexual contact, and
therefore precluded retrial for aggravated sexual assault. We
disagree.
Throughout the appellant’s original trial the wrongful
sexual contact specification was treated as a separate and non-
lesser included offense of the aggravated sexual assault
specification. The act alleged in the aggravated sexual assault
specification was that the appellant penetrated CS3 FC’s
“genital opening with his finger” while CS3 FC was
“substantially incapable of declining participation in the
sexual act.” The military judge instructed the members as
follows:
For this offense, the term “sexual act” means the
penetration, however slight, of the genital opening of
another by a hand or finger, or by any object, with an
intent to abuse, humiliate, harass or degrade any
person, or to arouse or gratify the sexual desire of
any person.
. . . .
The genital opening is the entrance to the vagina,
which is the canal that connects the genital opening
to the uterus. 80
The act alleged in the wrongful sexual contact
specification was that the appellant touched CS3 FC’s
79
The specification reads as follows: “In that [the appellant], U.S. Navy,
USS INGRAHAM, on active duty, did at [location], on divers occasions, on or
about 30 April 2011, engage in sexual contact with [CS3 FC], to wit: touching
her groin, and such sexual contact was without legal justification or lawful
authorization and without the permission of [CS3 FC].”
80
*Record at 733-34.
24
groin. The military judge instructed the members as
follows:
For this offense, the term “sexual contact” means the
intentional touching, either directly or through the
clothing, of the genitalia, anus, groin, breast, inner
thigh or buttocks of another person with an intent to
abuse, humiliate or degrade any person, or to arouse
or gratify the sexual desire of any person. 81
The military judge gave no definition of the word “groin.”
The trial defense counsel did not object to the military
judge’s instructions on these offenses, or to the findings
worksheet that permitted the members to convict for both
offenses. In short, we find these to be separate offenses and
therefore conclude the appellant’s conviction for aggravated
sexual assault was not inconsistent with his acquittal for
wrongful sexual contact.
Assuming arguendo that the member’s rendered an
inconsistent verdict in the appellant’s first court-martial,
“[a]n inconsistent verdict is not usually a cause for relief
. . . [t]he reason for the rule is that the court-martial may
merely have given the accused ‘a break.’” United States v.
Wilson, 13 M.J. 247, 251 n.4 (C.M.A. 1982) (citations omitted).
Our court set aside the findings and sentence from the
appellant’s first court-martial due to instructional error and
authorized a rehearing. The Government retried the appellant
solely on the offenses for which he was convicted at his
original court-martial. The appellant cites to no relevant
authority that prohibited his rehearing in these circumstances.
Accordingly, we decline to grant the appellant relief on this
AOE.
VIII. Court-Martial Order
Although not raised as an AOE, the promulgating order in
this case does not accurately list Specification 1 under the
sole Charge of which the appellant was convicted. General
Court-Martial Order No. 01-14 dated 9 Jan 2014. As to
Specification 1 of the Charge, the appellant was formerly
acquitted of the words “on divers occasions” by the original
military judge. However, the Order states that the appellant
81
*Id. at 734.
25
was convicted of aggravated sexual assault “on divers
occasions.”
We test this error under a harmless-error standard. United
States v. Crumpley, 49 M.J. 538, 539 (N.M.Ct.Crim.App. 1998).
We are convinced that this scrivener’s error did not amount to
plain error materially prejudicing the appellant’s substantial
rights because no prejudice was alleged or is apparent. See id.However, the appellant is entitled to have his official record
correctly reflect the results of his court-martial. See id. We
therefore order corrective action in our decretal paragraph.
IX. Conclusion
Accordingly, we direct that the supplemental court-martial
order remove the words “on divers occasions” from Specification
1 of the sole Charge. The findings and the sentence as
otherwise approved by the CA are affirmed.
Chief Judge MITCHELL and Judge McDONALD concur.
For the Court
R.H. TROIDL
Clerk of Court
26