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

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

                      UNITED STATES OF AMERICA

                                     v.

                            DONNELL T. EPPS
                         AIRMAN (E-3), U.S. NAVY

                            NMCCA 201300423
                        SPECIAL COURT-MARTIAL

Sentence Adjudged: 31 July 2013.
Military Judge: CAPT K.R. O’Neil, JAGC, USN.
Convening Authority: Commanding Officer, USS CARL VINSON
(CVN 70).
Staff Judge Advocate's Recommendation: LCDR Michael V.
Rosen, JAGC, USN.
For Appellant: LT Carrie E. Theis, JAGC, USN.
For Appellee: CDR James E. Carsten, JAGC, USN; Maj Crista
D. Kraics, USMC.

                              29 July 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:

     The appellant entered mixed pleas at a trial by special
court-martial with officer and enlisted members. Pursuant to
his pleas, the military judge found the appellant guilty of one
specification of unauthorized absence and two specifications of
wrongful use of marijuana in violation of Articles 86 and 112a,
Uniform Code of Military Justice, 10 U.S.C. §§ 886 and 912a.
The members convicted the appellant, contrary to his pleas, of
two specifications of missing movement by design, and one
specification of missing movement by neglect, in violation of
Article 87, UCMJ, 10 U.S.C. § 887. 1 The members sentenced the
appellant to 157 days confinement, reduction to pay grade E-1,
forfeitures of $934.00 pay per month for five months, and a bad-
conduct discharge. The convening authority (CA) approved the
sentence as adjudged.

     The appellant raised the following two assignments of
error: (1) that the military judge erred in preventing the trial
defense counsel from arguing that the appellant’s guilty pleas
were evidence of the appellant’s innocence of the charges to
which he pled not guilty; and, (2) that the military judge erred
when he did not provide an instruction on clemency when a member
asked for clarification on whether the appellant would receive
an administrative separation if no punitive discharge was
awarded.

     After careful consideration of the record of trial, the
appellant’s assignments of error, and the pleadings 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.

                            Improper Argument

     At the appellant’s request, the military judge informed the
members at the beginning of the trial that the appellant had
pled guilty, and was found guilty, of the unauthorized absence
and wrongful use of marijuana charges. In her closing argument,
trial defense counsel (TDC) attempted to argue that the
appellant’s acceptance of responsibility for those charges was
proof that he did not commit the contested missing movement
offenses. The military judge interrupted her argument, called
for an Article 39(a), UCMJ, session, and informed the TDC that
she would not be able argue the plea as evidence supporting the
appellant’s innocence. Specifically, the military judge held
that the plea was “not evidence” and therefore could not be used
as the basis for argument. Record at 304. The appellant now
argues that the military judge erred when he made that ruling.



1
  The appellant was charged with four specifications of missing movement by
design. The members acquitted the appellant of one specification and found
him guilty of the lesser included offense of missing movement by neglect for
a second specification.
                                      2
     The control of arguments before courts-martial is within
the discretion of the military judge. RULE FOR COURTS-MARTIAL
801(a)(3), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.); R.C.M.
919(b), Discussion; see also United States v. Michaud, 48 C.M.R.
379, 397 (N.C.M.R. 1973). Rulings in this regard will be
overturned only where the military judge has clearly abused his
discretion. United States v. Cordero, 21 M.J. 714, 716
(A.F.C.M.R. 1985). We will overturn that ruling if the findings
of fact are clearly erroneous or unsupported by the factual
record, or if the ruling was influenced by an erroneous view of
the law. United States v. Sullivan, 42 M.J. 360, 363 (C.A.A.F.
1995). A military judge's conclusions of law are reviewed de
novo. United States v. Owens, 51 M.J. 204, 209 (C.A.A.F. 1999).

     If we conclude that the military judge erred in his
evidentiary ruling, we subject that error to an analysis for
prejudice. The test for nonconstitutional error is whether the
error had a substantial influence on the findings. United
States v. Gunkle, 55 M.J. 26, 30 (C.A.A.F. 2001). We determine
prejudice from an erroneous evidentiary ruling using a four-part
test: (1) the strength of the prosecution case; (2) the strength
of the defense case; (3) the materiality of the evidence in
question; and (4) the quality of the evidence at issue. United
States v. Weeks, 20 M.J. 22, 25 (C.M.A. 1985).

     Here we find no error. When the military judge informed
the members that the appellant had pled guilty to unauthorized
absence and wrongful use of marijuana, he did so to explain
their responsibility with respect to those charges, not to put
the fact of the pleas into evidence such that it could be argued
by either party on the merits.

     Lastly, even assuming arguendo that the military judge’s
ruling was incorrect, the error was harmless. The Government’s
case, at least with respect to the offenses for which the
member’s convicted the appellant, was strong. The Government
not only presented evidence that the ship’s schedule was
repeatedly put out to the appellant at quarters, but also
presented evidence that on two occasions shipmates told the
appellate of the ship’s impending movement and urged him to
return so as to not miss the movement. Second, the argument
that the appellant was precluded from making had little or no
merit, and therefore would have added nothing to the strength of
the appellant’s case. The fact that the appellant “took
responsibility” by pleading guilty to several offenses does not
logically support an assertion that he would have pled guilty to
the remaining offenses but for his innocence. This is

                                   3
especially true in light of the overwhelming evidence possessed
by the Government with respect to the charges to which he pled
guilty. Accordingly, we find this assignment of error to be
without merit.

                      Clemency Instruction

     At the sentencing stage of the trial the members asked the
judge the following question: “If the jury does not award a
punitive discharge, will [the appellant] go to an
admin[istrative] separation board?” Appellate Exhibit XXVIII.
The military judge called an Article 39(a) session to discuss
his response with counsel and presented them with his proposed
response. The TDC indicated that she had no objection the
military judge’s response. The appellant now claims that the
military judge erred by failing to sua sponte provide the panel
members with a clemency instruction.

     In a case where no objection was made to the instructions
given to panel members, this court reviews instructions for
plain error. R.C.M. 1005(f); United States v. Griffin, 25 M.J.
423, 425 (C.M.A. 1988). Under plain error review, relief is
granted only when “(1) there was error, (2) the error was plain
and obvious, and (3) the error materially prejudiced a
substantial right of the accused.”   United States v. Garner, 71
M.J. 430, 434 (C.A.A.F. 2013) (citation omitted).

     “[T]he military judge’s instructions to members must be
adequate to allow the court ‘intelligently to determine a
punishment appropriate to the accused before it.’” United
States v. Perkinson, 16 M.J. 400, 401 (C.M.A. 1983). To that
end, “‘in a proper case it is error for the military judge to
fail to disclose to the court members their right to recommend
clemency.’” Id. (quoting United States v. Keith, 46 C.M.R. 59,
63 (C.M.A. 1972)). However, a military judge need not provide a
clemency instruction when the facts of a case “do not
sufficiently raise the possibility that the members intended to
recommend clemency.” Id.

     In this case, the members did not indicate a desire or
intent to recommend clemency, but rather asked what might happen
should they not award the appellant a punitive discharge. This
single question, without more, does not trigger a requirement to
give the clemency instruction. Accordingly, we find this
assignment of error to be without merit.



                                4
                           Conclusion

     The findings and the sentence as approved by the CA are
affirmed.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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