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

                                Before
                 R.Q. WARD, J.A. FISCHER, D.C. KING
                       Appellate Military Judges

                    UNITED STATES OF AMERICA

                                 v.

                       DWAYNE E. NOVAK, JR.
              STAFF SERGEANT (E-6), U.S. MARINE CORPS

                         NMCCA 201300379
                     SPECIAL COURT-MARTIAL


Sentence Adjudged: 4 April 2013.
Military Judge: LtCol Elizabeth Harvey, USMC.
Convening Authority: Commanding Officer, 1st Marine
Logistics Group, MarForPac, Camp Pendleton, CA.
Staff Judge Advocate's Recommendation: LtCol E.J. Peterson,
USMC.
For Appellant: Gary Myers, Esq.; LT Jared A Hernandez,
JAGC, USN.
For Appellee: LT Lindsay Geiselman, JAGC, USN.

                       30 September 2014

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                    OPINION OF THE COURT
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PER CURIAM:

     A military judge sitting as a special court-martial
convicted the appellant, contrary to his pleas, of conspiracy to
commit fraternization, fraternization, and adultery in violation
of Articles 81, 92, and 134, Uniform Code of Military Justice,
10 U.S.C. §§ 881, 892, and 934. The military judge sentenced
the appellant to reduction to pay grade E-3 and a bad conduct
discharge. The convening authority approved the adjudged
sentence.
     On appeal, the appellant maintains that the evidence was
legally and factually insufficient to support his convictions.

     After carefully considering the record of trial and the
submissions of the parties, we find partial merit in the
appellant’s claim of factual insufficiency as it relates to his
conspiracy conviction. After taking corrective action in our
decretal paragraph and reassessing the sentence, we conclude
that the remaining findings and the reassessed sentence are
correct in law and fact and that no error materially prejudicial
to the substantial rights of the appellant remains. Arts. 59(a)
and 66(c), UCMJ.

                                 Background

     In November 2011, Lance Corporal (LCpl) AC, a female
Marine, was assigned to a Combat Logistics Regiment while
pending an administrative separation. Sergeant Major (SgtMaj)
CP tasked Staff Sergeant (SSgt) CW, the Company Gunnery Sergeant
and Noncommissioned Officer in Charge, with mentoring LCpl AC
while she was assigned to the unit and going through the
administrative separation process. The appellant worked at the
same Regiment along with LCpl AC, SSgt CW, SSgt TJ, SSgt LS and
SSgt TW.1 Among the group of staff sergeants, only SSgt CW’s
duties brought him in regular professional contact with LCpl AC.

     Shortly after LCpl AC was assigned to the Regiment, SSgt CW
began an inappropriate relationship with her that included
frequent communications of a personal nature through text
message, phone, and email. Additionally, LCpl AC testified that
between November 2011 and March 2012, she engaged in sexual
activity with SSgt CW on at least five occasions. LCpl AC
further testified that from January to March 2012, she also
engaged in sexual activity with SSgt TJ, SSgt LS, SSgt TW and
the appellant and her testimony indicated that these sexual
liaisons were generally facilitated through SSgt CW.

     LCpl AC testified that in early March 2012, SSgt CW sent
her a text message saying that she would never guess who wanted
to have sex with her. Following further text message exchanges
between the two of them, SSgt CW told her it was the appellant.
LCpl AC had previously told SSgt CW that she was interested in
the appellant. Later that day, LCpl AC went to the appellant’s
house. SSgt CW, SSgt TW and the appellant were already there.
1
  SSgt CW, SSgt TJ, SSgt LS and SSgt TW were named along with the appellant as
co-conspirators to commit fraternization with LCpl AC and all but SSgt TJ
were married during the time of the charged misconduct.
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LCpl AC testified that while at the appellant’s house that
night, at one point, SSgt CW gave her a nod, and she then
followed the appellant to his bedroom and had sex with him.
Following this sexual liaison, the appellant and LCpl AC
exchanged approximately eighty-four text messages over the next
several weeks, and LCpl AC testified that she engaged in sexual
activity with the appellant at least four more times.

     On 18 March 2012, LCpl AC approached SgtMaj CP to complain
about the frequency and nature of SSgt CW’s communications to
her and she showed SgtMaj CP a partially nude photograph SSgt CW
sent to her of himself. This triggered a command investigation
which uncovered LCpl AC’s relationships with the aforementioned
staff sergeants.

     At trial the appellant testified in his own defense and
denied engaging in any sexual activity with LCpl AC or
fraternizing with her. He maintained that the text messages
between LCpl AC and himself were primarily her reaching out to
him about martial arts classes he taught on base. He testified
that when she did send him text messages of a personal nature he
told her to stop. Additionally, the defense presented witnesses
who testified that they found LCpl AC to be an untruthful person
and that she had a reputation for being untruthful. The defense
also cross-examined LCpl AC about distinguishing characteristics
of the appellant’s physical appearance such as his tattoos,
scars, etc., and argued her inaccurate recollection in this
regard undercut her testimony that she engaged in sexual
relations with the appellant. The thrust of the defense theory
was that LCpl AC fabricated the allegations against the
appellant and the other staff sergeants in order to gain
sympathy from her command so she could remain in the Marine
Corps.

                           Discussion

Legal and Factual Sufficiency

     In accordance with Article 66(c), UCMJ, this court reviews
issues of legal and factual sufficiency de novo. 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. Dobson, 63 M.J. 1, 21
(C.A.A.F. 2006) (citing Jackson v. Virginia, 443 U.S. 307, 319
(1979)). When testing for legal sufficiency, this court must

                                3
draw every reasonable inference from the record in favor of the
prosecution. United States v. McGinty, 38 M.J. 131, 132 (C.M.A.
1993); United States v. Blocker, 32 M.J. 281, 284 (C.M.A. 1991).

     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, the
members of [this court] are themselves convinced of the
accused’s guilt beyond a reasonable doubt.” United States v.
Turner, 25 M.J. 324, 325 (C.M.A. 1987)

     While we find the evidence legally and factually sufficient
to support the appellant’s convictions for fraternization and
adultery, we are unconvinced of the factual sufficiency of the
appellant’s conspiracy conviction. The elements of the
appellant’s conspiracy charge are: (1) That on or about 29
February 2012 to on or about 22 March 2012, the accused entered
into an agreement with SSgt CW, SSgt TJ, SSgt LS, and SSgt TW to
commit fraternization, an offense under the Uniform Code of
Military Justice; and (2) That, while the agreement continued to
exist, and while the appellant remained a party to the
agreement, the appellant, performed one or more of the overt
acts alleged, that is, the appellant engaged in sexual
intercourse and oral sodomy with LCpl AC; the appellant
contacted LCpl AC about non-work related subjects; and the
appellant sent text messages to LCpl AC about non-work related
subjects, for the purpose of bringing about the object of the
agreement.

     Although the evidence at trial showed that the appellant
committed the overt acts alleged and there was circumstantial
evidence that the appellant expressed an interest in
fraternizing with LCpl AC prior to their interactions, we find
that the evidence is insufficient to prove beyond a reasonable
doubt that a prior agreement existed between the appellant and
the named co-conspirators to commit the criminal offense
alleged. Therefore the Charge and its specification must fall.
Art. 66, UCMJ.

                           Conclusion

     We set aside the guilty finding to Charge I and its sole
specification and dismiss Charge 1 and its specification. We
next determine whether we can reassess the sentence in
accordance with the principles set forth in United States v.
Moffeit, 63 M.J. 40 (C.A.A.F. 2006), United States v. Cook, 48
M.J. 434 (C.A.A.F. 1998), and United States v. Sales, 22 M.J.

                                4
305 (C.M.A. 1986). We are satisfied that the sentencing
landscape in this case has not changed dramatically as a result
of our decision to set aside the findings of guilty to the
conspiracy charge. See United States v. Buber, 62 M.J. 476, 479
(C.A.A.F. 2006). We conclude that the adjudged sentence for the
remaining offenses would have been at least the same as that
adjudged by the military judge and approved by the convening
authority. Accordingly, we affirm the remaining findings and
the sentence as approved by the convening authority.

                               For the Court



                               R.H. TROIDL
                               Clerk of Court




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