United States v. Russo

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
J.A. FISCHER, R.Q. WARD, D.C. KING
Appellate Military Judges
UNITED STATES OF AMERICA
v.
SPENCER J. RUSSO
SERGEANT (E-5), U.S. MARINE CORPS
NMCCA 201300324
GENERAL COURT-MARTIAL
Sentence Adjudged: 9 April 2013.
Military Judge: LtCol Leon Francis, USMC.
Convening Authority: Commanding General, 3d Marine Aircraft
Wing, Marine Corps Air Station Miramar, CA.
Staff Judge Advocate's Recommendation: LtCol K.C. Harris,
USMC.
For Appellant: LT Carrie Theis, JAGC, USN.
For Appellee: Maj Paul M. Ervasti, USMC; Maj Crista Kraics,
USMC.
18 November 2014
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OPINION OF THE COURT
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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.
PER CURIAM:
Contrary to his pleas, members at a general court-martial
convicted the appellant of aggravated sexual contact with a
child under twelve years in violation of Article 120(g), Uniform
Code of Military Justice, 10 U.S.C. § 920 (2006). The convening
authority (CA) approved the adjudged sentence of six months’
confinement and a dishonorable discharge and except for the
discharge ordered it executed.
On appeal, the appellant raises three assignments of error;
first, that the military judge erred in excluding evidence under
MILITARY RULE OF EVIDENCE 412, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012
ed.);1 second, that the evidence is legally and factually
insufficient; and third, that his court-martial was
prejudicially impacted by unlawful command influence (UCI).
After carefully considering the record of trial and the
submissions of the parties, we are convinced that the findings
and the sentence are correct in law and fact, and that no error
materially prejudicial to the substantial rights of the
appellant was committed. Arts. 59(a) and 66(c), UCMJ.
Background
In 2010, the appellant and his roommates hosted a cookout
for another Marine who was about to separate from active duty.
At that party was Gunnery Sergeant GP, along with her nine-year-
old twin daughters, L.C. and A.C. Other guests at the party
also brought their children who all played together while the
adults socialized.
Later that evening the appellant started a movie in the
living room for the children while the adults continued to
socialize in the kitchen. In the living room were two couches.
Three of the children, including L.C., sat on one while A.C. lay
on the other beneath a blanket. After the movie started, the
appellant came over and sat down on the couch next to A.C.. He
then pulled the blanket partly over himself, reached over and
placed his hand on her knee. He slid his hand up her thigh,
underneath her clothing, and touched her vagina. A few moments
later2 A.C. got up off the couch and went over to the kitchen,
where she stood next to her mother until they left a short while
later. At the time A.C. said nothing of what happened.
Approximately two years later, an incident at school led to
A.C. disclosing the above encounter with the appellant. After
1
Having reviewed the parties’ submissions, the relevant portions of the
record and the military judge’s evidentiary ruling (Appellate Exhibit XLI),
we find no abuse of discretion and therefore do not address this assigned
error further. United States v. Clifton, 35 M.J. 79, 81 (C.M.A. 1992).
2
At first A.C. estimated that the touching lasted approximately two to three
minutes. Record at 834. However, she later admitted that it could have been
as little as 10 to 15 seconds although it seemed much longer. Id. at 875.
2
her disclosure, agents from the Naval Criminal Investigative
Service (NCIS) initiated an investigation to include a forensic
interview during which A.C. recounted the events at the party in
2010. When NCIS agents interrogated the appellant, he initially
denied any inappropriate touching. He recalled sitting down on
the floor next to A.C. with his arm resting on the couch. He
acknowledged that his arm may have brushed against her leg, but
denied any further contact. After repeated questioning,
however, he eventually admitted to the touching.3
Legal and Factual Sufficiency
In his second assignment of error, the appellant asserts
that the guilty findings are both legally and factually
insufficient. We review questions of legal and factual
sufficiency de novo. United States v. Winckelmann, 70 M.J. 403,
406 (C.A.A.F. 2011). We review the legal sufficiency of the
evidence by determining “whether, considering the evidence in
the light most favorable to the prosecution, any reasonable
fact-finder could have found all the essential elements beyond a
reasonable doubt.” United States v. Day, 66 M.J. 172, 173-74
(C.A.A.F. 2008) (citing United States v. Turner, 25 M.J. 324,
324 (C.M.A. 1987)). The test for factual sufficiency is whether
“after weighing all the evidence in the record of trial and
recognizing that we did not see or hear the witnesses as did the
trial court, this court is convinced of the appellant’s guilt
beyond a reasonable doubt.” United States v. Rankin, 63 M.J.
552, 557 (N.M.Ct.Crim.App. 2006), aff’d, 64 M.J. 348 (C.A.A.F.
2007) (citations omitted).
Viewed in a light most favorable to the prosecution, A.C.’s
statements during the forensic interview and at trial,4 the
appellant’s admissions during his interrogation and in his
handwritten statement, and the remaining evidence in the record
lead us to conclude that a rational trier of fact could have
3
The appellant acknowledged that “[w]hat I recall ok, is her being under the
blanket, my hand under there, what I remember is her having black leggings
on. I was massaging her leg for roughly fifteen seconds and at some point in
time, my pinky did touch her vagina and then I stopped.” Prosecution Exhibit
3; AE XLVII at 74. In a written statement that followed the interrogation,
the appellant wrote that “[a]t one point my hand was on her knee. I started
moving my hand along her leg. At one point I realized my hand was to (sic)
far up her leg. I noticed I touched her privates. I immediately stopped and
bent my arm to take my hand off of her.” PE 4 at 1-2.
4
The members viewed a video recording of the forensic interview. Record at
1167; PE 13.
3
found all essential elements of the offense proven beyond a
reasonable doubt. Furthermore, even recognizing that we did not
personally observe the witnesses, we ourselves are convinced of
the appellant’s guilt beyond a reasonable doubt.
Unlawful Command Influence
In his final assignment of error, the appellant contends
for the first time on appeal that various panel members’
exposure to the Commandant of the Marine Corps’ (CMC) “Heritage
Brief” together with the military judge’s instruction to the
panel on CMC White Letter 3-12 “impermissibly exacerbated the
unlawful command influence already permeating [the appellant’s]
court-martial.”5 Appellant’s Brief of 10 Jan 2014 at 9. We
disagree.
When raised on appeal, the appellant carries the initial
burden of showing “some evidence” of (1) facts that, if true,
constitute UCI; (2) that the proceedings were unfair; and (3)
that the UCI was the cause of the unfairness. United States v.
Salyer, 72 M.J. 415, 423 (C.A.A.F. 2013) (citing United States
v. Richter, 51 M.J. 213, 224 (C.A.A.F. 1999)) (additional
citation omitted). Although this initial threshold may be low,
it requires more than “mere allegation or speculation.” Id.(citing United States v. Stoneman, 57 M.J. 35, 41 (C.A.A.F.
2002).
In his appeal, the appellant focuses on the appearance of
UCI. Appellant’s Brief at 19. The test for the appearance of
UCI is objective. “We focus upon the perception of fairness in
the military justice system as viewed through the eyes of a
reasonable member of the public.” United States v. Lewis, 63
M.J. 405, 415 (C.A.A.F. 2006). An appearance of UCI arises
“where an objective, disinterested observer, fully informed of
all the facts and circumstances, would harbor a significant
doubt about the fairness of the proceeding.” Id. We review
allegations of UCI de novo. United States v. Harvey, 64 M.J.
13, 19 (C.A.A.F. 2006).
Assuming arguendo that the appellant sufficiently raised
the issue, we conclude beyond a reasonable doubt that any
appearance of UCI was sufficiently ameliorated. Without
objection, the military judge sua sponte instructed the members
on CMC White Letter 3-12 during general voir dire and addressed
5
For a more thorough description of the Heritage Brief and CMC White Letter
3-12, see United States v. Howell, No. 201200264, 2014 CCA LEXIS 321,
unpublished op. (N.M.Ct.Crim.App. 22 May 2014).
4
the issue in depth with the panel. Record at 534-35; 552-56; AE
XLII. All members disavowed any influence or pressure resulting
from the CMC’s remarks and further acknowledged that they would
only decide the case based on the evidence and law as instructed
by the military judge. Record at 553-56. Nothing in our review
of the record of trial indicates otherwise. After reviewing the
entire record, we conclude beyond a reasonable doubt that,
assuming the issue was appropriately raised, any appearance of
unlawful influence “had no prejudicial impact on the
[appellant’s] court-martial.” United States v. Douglas, 68 M.J.
349, 354 (C.A.A.F. 2010) (citing United States v. Biagase, 50
M.J. 143, 150-51 (C.A.A.F. 1999)).
Conclusion
The findings and the sentence as approved by the convening
authority are affirmed.
For the Court
R.H. TROIDL
Clerk of Court
5