              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                               Before
          J.R. MCFARLANE, M.C. HOLIFIELD, K.J. BRUBAKER
                      Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                           JEREMY D. LOTZ
                     HOSPITALMAN (E-3), U.S. NAVY

                           NMCCA 201400304
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 22 May 2014.
Military Judge: CAPT Bethany Payton-O’Brien, JAGC, USN.
Convening Authority: Commander, Navy Region Northwest,
Silverdale, WA.
Staff Judge Advocate's Recommendation: LCDR E.K. Westbrook,
II, JAGC, USN.
For Appellant: Maj Jeffrey S. Stephens, USMCR.
For Appellee: CAPT Diane L. Karr, JAGC, USN; LCDR Keith B.
Lofland, JAGC, USN.

                           10 February 2015

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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:

     A military judge, sitting as a general court-martial,
convicted the appellant, pursuant to his pleas, of one
specification each of attempting to commit a lewd act upon a
child, committing a sexual act upon a child, committing a lewd
act upon a child, and committing sodomy with a child, in
violation of Articles 80, 120b and 125, Uniform Code of Military
Justice, 10 U.S.C. §§ 880, 920b and 925. The military judge
sentenced the appellant to confinement for 114 months, reduction
to pay grade E-1, total forfeitures, and a dishonorable
discharge. The convening authority (CA) approved the sentence
as adjudged and, except for that part of the sentence extending
to a dishonorable discharge, ordered it executed. The pretrial
agreement had no effect on the sentence.

     The appellant asserts that his sentence is inappropriately
severe given: the victim consented to the sexual conduct; the
victim’s claim of suffering post-traumatic stress disorder
(PTSD) was neither credible nor substantiated by any medical
evidence; and, the appellant’s combat experience and purported
good military character.

     After carefully considering the record of trial and the
submissions of the parties, we conclude 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

     The appellant, while aged 25, created an online persona
claiming to be a 15-year-old boy. Upon making contact with a
14-year-old girl, ML, the persona urged ML to contact the
appellant via Facebook. This lead to two sexual encounters: one
at ML’s grandparent’s home and another in the woods nearby.
These meetings involved penile and digital penetration of ML’s
vulva, touching of ML’s breasts, and sodomy. ML’s parents
became aware of the sexual activity and reported it to local law
enforcement.

     Subsequent to the appellant being interviewed by the local
police regarding his activity with ML, he was contacted by a
special agent of the Naval Criminal Investigative Service posing
as a 14-year-old girl. In the ensuing exchange of text
messages, the appellant described how they would have sex and
encouraged the “girl” to send him images of herself, either nude
or partially-clothed.

     Testifying at trial, ML described suffering from depression
and PTSD as a result of her interactions with the appellant.

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She also described having nightmares and “episodes” in which she
loses all sense of her environment, hyperventilates, and relives
the sexual activity with the appellant. Record at 85-86. The
defense’s sole challenge to ML’s claims was to have her admit
the “episodes” began only after her mother discovered her
relationship with the appellant, and that ML provided the condom
used during the sexual intercourse.

     An expert for the defense testified the appellant suffers
from attention deficit disorder and impulsivity, and, based on
scientific studies, presents a low likelihood of recidivism.
The appellant provided an unsworn statement describing a
childhood in which he was sexually abused, bullied, and
physically abused. He further described how he volunteered to
be a combat medic with a Marine unit in Afghanistan, and how he
earned the Combat Action Ribbon for his actions during a
firefight with insurgents. The defense also submitted
performance evaluations that document an otherwise unremarkable
four years of service.

                    Sentence Appropriateness

     In accordance with Article 66(c), UCMJ, a Court of Criminal
Appeals “may affirm only such findings of guilty and the
sentence or such part or amount of the sentence, as it finds
correct in law and fact and determines, on the basis of the
entire record, should be approved.” 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)).

     We review sentence appropriateness de novo. United States
v. Baier, 60 M.J. 382, 384-85 (C.A.A.F. 2005); Healy, 26 M.J. at
395-96; Snelling, 14 M.J. at 268. After a thorough review of
the entire record, we find that the sentence is appropriate for
this offender and his offenses. In addition to considering the
serious nature of the specific offenses committed by the

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appellant, we have carefully considered his background, work
performance and combat experience. We find all of these factors
to be outweighed by the seriousness of his misconduct.

     We have also weighed ML’s role in the events and find ML’s
apparent willingness to engage in the sexual activity is not a
factor that militates toward a sentence lower than was imposed.
Article 120b, UCMJ, makes punishable the commission of a sexual
act upon a child over 12 years of age, with no requirement that
force, threats, or other means for overcoming lack of consent be
used. This strict liability (absent a reasonable mistake of
fact as to the child’s age) acknowledges the impossibility of
consent in such situations, placing the burden on the adult
involved to refrain from sexual activity with the child. Also,
we find that the appellant specifically targeted children, going
so far as to create an on-line, teenaged persona to facilitate
his connecting with young girls. And, despite knowing he was
under investigation for criminal acts with a child, he attempted
to commit lewd acts with someone he believed was a 14-year-old
girl.

     Finally, we disagree with the appellant’s assertion that
ML’s claim of PTSD is “incredible on its face.” Appellant’s
Brief of 10 Nov 2014 at 6. While the nightmares and episodes
did not occur until after ML was confronted by her mother, ML
testified that she was diagnosed with PTSD and depression by
both a counselor and a doctor. The defense offered nothing to
challenge this statement. Nor did they effectively discredit
ML’s stepfather’s testimony describing, first-hand, one of ML’s
“episodes.”

     Considering the entire record, we conclude that granting
sentence relief at this point would be to engage in clemency, a
prerogative reserved for the CA, and we decline to do so.
Healy, 26 M.J. at 395-96.

                          Post-Trial Errors

     We note the Results of Trial, incorporated in the Staff
Judge Advocate’s Recommendation, fails to indicate that the
excepted language in Specification 2 of Charge II and
Specification 1 of Charge III was withdrawn and dismissed at
trial. This error was compounded in the court-martial order

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(CMO), which appears to say the appellant was found guilty of
these two specifications as charged. The appellant did not
raise this as an assignment of error. There being neither
claimed nor apparent prejudice, we find the error did not affect
the appellant’s substantial rights. The appellant, however, is
entitled to have the official records accurately reflect the
results of his court-martial. United States v. Crumpley, 49
M.J. 538, 539 (N.M.Ct.Crim.App. 1998). Accordingly, we will
order the necessary corrective action in our decretal paragraph.

                           Conclusion

     The findings and the sentence as approved by the CA are
affirmed. It is ordered that the supplemental CMO correctly
reflect that the excepted language in Specification 2 of Charge
II and Specification 1 of Charge III was withdrawn and
dismissed.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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