         U NITED S TATES N AVY –M ARINE C ORPS
             C OURT OF C RIMINAL A PPEALS
                        _________________________

                            No. 201500163
                        _________________________

                 UNITED STATES OF AMERICA
                                 Appellee
                                     v.

                         MICHAEL K. ELLIS
       Chief Information Systems Technician (E-7), U.S. Navy
                             Appellant
                      _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

        Military Judge: Captain Robert J. Crow, JAGC, USN.
 Convening Authority: Commander, Navy Region Southeast , Naval
                   Air Station, Jacksonville, FL.
  Staff Judge Advocate’s Recommendatio n: Commander George W.
                        Lucier, JAGC, USN.
For Appellant: Brian A. Pristera, Esq.; Captain Daniel R. Douglass,
                               USMC.
 For Appellee: Lieutenant Allyson L. Breech, JAGC, USN; Captain
                      Sean M. Monks, USMC.
                      _________________________

                        Decided 30 March 2018
                        _________________________

   Before MARKS, J ONES , and W OODARD , Appellate Military Judges
                      _________________________

This opinion does not serve as binding precedent but may be cited as
persuasive authority under NMCCA Rule of Practice and Procedure
18.2.
                      _________________________

   WOODARD, Judge:
   In January 2015, the appellant was convicted of numerous offenses and
was sentenced to two years’ confinement, reduction to pay grade E-1, and a
dishonorable discharge. On 30 August 2016, this court set aside the findings
and sentence and authorized a rehearing. See United States v. Ellis, No.
                        United States v. Ellis, No. 201500163


201500163, 2016 CCA LEXIS 516, unpublished op. (N-M. Ct. Crim. App. 30
Aug 2016). At a rehearing, a panel of members with enlisted representation,
sitting as a general court-martial, convicted the appellant, contrary to his
pleas, of one specification of abusive sexual contact and two specifications of
assault consummated by battery in violation of Articles 120 and 128, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 920 and 928 (2012).1 The
members sentenced the appellant to a letter of reprimand, 45 days’
restriction, and reduction to pay grade E-6. The convening authority (CA)
approved the sentence as adjudged and ordered it executed.2
   The appellant alleges that the evidence is legally and factually
insufficient to support his convictions. We agree, in part, and grant relief in
our decretal paragraph. Although not raised by the parties, we note error
within the court-martial order (CMO) and direct corrective action in our
decretal paragraph. We are convinced the findings as modified herein 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.
                                 I. BACKGROUND
    The appellant and the victim, Chief Petty Officer (Chief) TA, worked
together in the same department of the same command. As fellow chief petty
officers, they often socialized in the same circles. Prior to the night of the
offenses, neither the appellant nor Chief TA had ever expressed or
demonstrated a romantic or sexual interest in the other. At the time of the
misconduct, the appellant was living with his fiancée and their newborn son.
Chief TA was a single mother of a 14-year-old son, JA, who lived with her at
her off-base home.

    1 The charges and specifications before the rehearing were renumbered on a

cleansed charge sheet, Appellate Exhibit (AE) IX. The appellant was charged with
two specifications of abusive sexual contact in violation of Article 120(d), UCMJ, and
two specifications of assault consummated by a battery in violation of Article 128,
UCMJ. At the conclusion of the government’s case, and pursuant to the appellant’s
RULE FOR COURTS-MARTIAL 917, MANUAL FOR COURTS-MARTIAL, UNITED STATES
(2016 ed.), motion, the military judge entered findings of not guilty to the language
“forcing her to the ground” in the abusive sexual contact alleged in Specification 2 of
Charge I. He also entered a finding of not guilty of Specification 2 of Charge II which
alleged that same conduct as an assault consummated by battery. The members
acquitted the appellant of the greater offense of abusive sexual contact alleged in
Specification 1 of Charge I but convicted him of the lesser included offense of an
assault consummated by a battery, in violation of Article 128, UCMJ.
   2 This court maintains jurisdiction over the case because the appellant’s original
approved sentence included a dishonorable discharge. See Art. 66(b)(1), UCMJ;
United States v. Johnson, 45 M.J. 88, 90 (C.A.A.F. 1996).

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    On 8 December 2012, the appellant, Chief TA, and several other chief
petty officers from the command gathered to watch the annual Army-Navy
football game at a sports bar. Following the game, the appellant, Chief TA,
Chief TW,3 and Chief JH,4 all of whom had been drinking alcohol to some
degree, adjourned to Chief TA’s nearby home to continue celebrating the
Navy victory. Many months later, Chief TA accused the appellant of
inappropriately touching her without her consent on three separate occasions
that night.
    We will address each offense chronologically, and refer to them by the
location in which they occurred—bathroom, kitchen, and then bedroom.
                                   II. DISCUSSION
    We review both legal and factual sufficiency de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (citing United States v. Cole, 31
M.J. 270, 272 (C.M.A. 1990)); see also Art. 66(c), UCMJ. When reviewing
legal sufficiency, we ask 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. Turner, 25
M.J. 324, 324-25 (C.M.A. 1987) (citing Jackson v. Virginia, 443 U.S. 307, 319
(1979)). In evaluating factual sufficiency, we determine whether, after
weighing the evidence in the record of trial and making allowances for not
having personally observed the witnesses, we are convinced of the appellant’s
guilt beyond a reasonable doubt. Id. at 325. “Reasonable doubt, however, does
not mean the evidence must be free from conflict.” United States v. Rankin,
63 M.J. 552, 557 (N-M. Ct. Crim. App. 2006) (citation omitted). In exercising
the duty imposed by this “awesome, plenary, de novo power,” Cole, 31 M.J. at
272, this court may judge the credibility of witnesses, determine controverted
questions of facts, and substitute our judgment for that of the court-martial
members. Art. 66(c), UCMJ. Further, we may believe part of a particular
witness’ testimony yet disbelieve another part. United States v. Harris, 8 M.J.
52, 59 (C.M.A. 1979); see Art. 66(c), UCMJ.
A. Assault consummated by a battery in the bathroom
   The first offense occurred in the bathroom with the appellant convicted of
touching Chief TA’s breasts and buttocks with his hands, without her
consent, in violation of Article 128, UCMJ . To support this conviction, the




   3 Chief TW, a female, had recently joined the command. This was her first social
interaction with the appellant and Chiefs TA and JH.
   4   Chief JH, a male, was a good friend of both the appellant and Chief TA.

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government needed to prove beyond a reasonable doubt that: (1) the
appellant did bodily harm to Chief TA; (2) that he did so by touching her
breasts and buttocks with his hands; and (3) the bodily harm was done with
unlawful force or violence.
   An assault is “an attempt or offer with unlawful force or violence to do
bodily harm to another[.]” MANUAL FOR COURTS-MARTIAL (MCM), UNITED
STATES (2016 ed.), Part IV, ¶ 54.c.(1)(a). “Bodily harm” is any offensive
touching of another, however slight. Id. “Unlawful force or violence” is
physical force used “without legal justification or excuse and without the
lawful consent of the person affected.” Id. A battery is “an assault in which
the attempt or offer to do bodily harm is consummated by the infliction of
that harm.” Id. at ¶ 54.c.(2)(a).
    The evidence presented at trial establishes that after arriving at Chief
TA’s home, the appellant continued to drink heavily while playing dominoes.
The dominoes game ended when the appellant and Chief TA began arguing
over how the game should be scored. In the midst of the disagreement, Chief
TA excused herself from the game table in the kitchen in order to use the
bathroom. The appellant followed her, uninvited, into the bathroom, shut the
door, and continued the argument. Then, without Chief TA’s consent, he
touched her breast over her clothing, attempted to kiss her, and placed his
hand under her dress—touching her underwear—while commenting about
her underwear “[o]h you’ve got the nice ones on too.”5 Chief TA testified that
she then pushed the appellant away from her and told him to “[g]et
the f[***] out.”6 Chief TW and JA heard Chief TA tell the appellant to get out
of the bathroom.
    Although Chief TA did not confront the appellant about his actions in the
bathroom in front of her guests, she did later confide in Chief TW—the only
other female present—that something had happened in the bathroom. After
Chief TA and the appellant emerged from the bathroom, Chief TW informed
Chief TA that it was time for her to head home. Chief TW testified that as
she was leaving Chief TA told her the appellant had “come on to her”7 and
that he was “brushing up on her”8 in the bathroom and that she did not like
it.




   5   Record at 200.
   6   Id. at 207.
   7   Id. at 310.
   8   Id. at 318.

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    Despite the appellant’s conduct in the bathroom, Chief TA did not ask
him to leave. Chief TA explained that this was because of the level of her
fellow chiefs’ intoxication at that point in the evening. She was concerned for
both chiefs’ careers—the appellant and Chief JH—should they be arrested for
driving to their homes while intoxicated.9
    After reviewing the record of trial and considering the evidence in the
light most favorable to the prosecution, we are convinced that a reasonable
fact-finder could have been convinced beyond a reasonable doubt that, while
in the bathroom with Chief TA, the appellant did bodily harm to her by
touching her breasts and buttocks with his hands, without her consent.
Furthermore, after weighing the evidence in the record of trial and making
allowances for not having personally observed the witnesses, we too are
convinced beyond a reasonable doubt that the appellant did bodily harm to
Chief TA while in the bathroom.
    However, based upon the record before us, we are only convinced that he
did so by touching her buttocks and one of her breasts with one of his hands.
Thus, we find the evidence is legally and factually sufficient to sustain a
modified finding of guilty to Charge II, Specification 1. In our decretal
paragraph, we will except the words “breasts” and “hands” and substitute
therefor the words “breast” and “hand.”
B. Abusive sexual contact in the kitchen
    The second offense occurred in the kitchen with the appellant convicted of
lying on top of Chief TA with his body and touching her thighs and buttocks
with his hands, without her consent, in violation of Article 120(d), UCMJ. To
support the appellant’s conviction of abusive sexual contact, the government
needed to prove beyond a reasonable doubt that: (1) the appellant committed
sexual contact upon Chief TA, to wit: lying on top of her with his body, and
touching her thighs and buttocks with his hands; (2) he did so by causing
bodily harm to Chief TA, to wit: lying on top of her with his body, and
touching her thighs and buttocks with his hands; and (3) he did so without
Chief TA’s consent.
   Sexual contact is defined as any “touching, . . . either directly or through
the clothing, [of] any body part of any person, if done with an intent to arouse
or gratify the sexual desire of any person.” MCM, Part IV, ¶ 45.a(g)(2)(B).
“Bodily harm” means “any offensive touching of another, however slight,




   9  Id. at 215-16. The appellant had parked his vehicle at a nearby military
installation, and Chief JH provided him a ride to the sports bar and then to Chief
TA’s home.

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including any . . . nonconsensual sexual contact.” Id. at ¶ 45a.(g)(3).
“‘[C]onsent’ means a freely given agreement to the conduct at issue by a
competent person. An expression of lack of consent through words or conduct
means there is no consent.” Id. at ¶ 45a.(g)(8). The government may prove the
appellant’s intent in touching with circumstantial evidence. United States v.
Vela, 71 M.J. 283, 286 (C.A.A.F. 2012).
    The evidence presented at trial establishes that sometime later in the
evening—after the bathroom incident—Chief TA was in the kitchen cooking.
While Chief JH and JA were seated on a couch in the adjoining living room
watching television and talking, the appellant, uninvited, joined Chief TA in
the kitchen. The appellant began “tussling”10 with Chief TA over a cooking
utensil. Somehow, during the struggle, the two of them fell to the floor behind
a kitchen island and out of sight of JA and Chief JH. Chief TA ended up flat
on her back, with the appellant lying on top of her. Chief TA told the
appellant to “get off”11 of her and unsuccessfully tried to “push him up off [of
her].”12 During the struggle, the appellant, once again, placed his hand under
her dress and began “tugging at [her] panties.”13 Chief TA then grabbed a
nearby hammer and threatened to hit the appellant in the head with it.
Although Chief TA never testified that the appellant specifically touched her
buttocks, when asked if the appellant “touch[ed] [her on] the back of [her]
thigh”14 she answered that the appellant “was tugging at [her] panties right
then.”15
    During the incident, Chief TA called out for assistance saying, “[Chief
JH], come get your boy.”16 After hearing Chief TA call for assistance several
times, first JA and then Chief JH came to her aid. When JA entered the
kitchen, he saw the appellant, who was much larger than both him and his
mother, lying of top of his mother. Fearing for his mother’s safety, JA ran
upstairs to get a stun gun. But before JA could return, Chief JH—who had
entered the kitchen and observed the appellant lying on top of Chief TA—had
separated the parties, helped them to their feet, and ensured the appellant
returned to the living room. Although Chief JH did not recall seeing a
hammer, a stun gun, or whether Chief TA’s dress was pulled up or


   10   Id. at 210.
   11   Id.
   12   Id. at 213.
   13   Id. at 210 and 213.
   14   Id. at 213.
   15   Id.
   16   Id.

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disheveled, he acknowledged that he was very intoxicated at the time and
“didn’t focus on [the] details[.]”17
   Again, Chief TA did not outwardly confront the appellant about his
conduct or complain to Chief JH. Nor did she require that the appellant leave
her home for the same reason as before.
    After reviewing the record of trial and considering the evidence in the
light most favorable to the prosecution, we are convinced that a reasonable
fact-finder could have been convinced beyond a reasonable doubt that while
on the floor in the kitchen, the appellant, without the consent of Chief TA,
touched her by lying on top of her with his body and touched her thighs and
buttocks while tugging at her underwear. And, despite his level of
intoxication, the appellant did so with the intent to arouse or gratify his
sexual desires. The appellant’s intent can be readily inferred from the
manner in which he touched Chief TA in the bathroom, his comment
regarding her underwear, and the manner in which he touched Chief TA in
the kitchen. Furthermore, after weighing the evidence in the record of trial
and making allowances for not having personally observed the witnesses, we
too are convinced beyond a reasonable doubt that the appellant commited
sexual contact upon Chief TA while on the floor in the kitchen.
    However, based upon the record before us, we are only convinced that he
did so by lying on top of her with his body and touching her buttocks and one
of her thighs with one of his hands as he was tugging at her underwear. Thus
we find the evidence is legally and factually sufficient to sustain a modified
finding of guilty to Charge I, Specification 2. In our decretal paragraph, we
will except the words “thighs” and “hands” and substitute therefor the words
“thigh” and “hand.”
C. Assault consummated by a battery in the bedroom
    The third offense occurred in the bedroom with the appellant convicted of
rubbing Chief TA’s shoulders with his hands, without her consent, in
violation of Article 128, UCMJ. To support the appellant’s conviction the
government needed to prove beyond a reasonable doubt that: (1) the
appellant did bodily harm to Chief TA; (2) that he did so by rubbing her
shoulders with his hands; and (3) the bodily harm was done with unlawful
force or violence.
   The evidence presented at trial establishes that, after leaving the kitchen,
the appellant went to the living room and sat down on the couch. Chief TA




   17   Id. at 403.

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and her son ate, cleaned the kitchen, and then retired to their upstairs
bedrooms for the evening. When Chief TA went upstairs to her bedroom, the
appellant appeared to be asleep on one of the couches in the living room. Not
“feel[ing] right”18 about what had occurred during the course of the evening
and knowing that her bedroom door lock was not functioning, Chief TA
placed her .380 caliber pistol under her pillow. Sometime later, the appellant
entered her bedroom, sat down on the edge of her bed, and began discussing
problems he was having with his fiancée. After telling the appellant
“[w]hatever problems that you guys are having, you need to fix that at
home[,]”19 the appellant began to rub her shoulders with his hands in a
massage-like manner. Chief TA immediately moved away from the appellant
so that he could no longer touch her. He then leaned in towards her in what
Chief TA perceived as an attempt to kiss her. At that point, she removed the
pistol from under the pillow, placed it on her lap, and told the appellant “he
was doing too much and he needed to go.”20 Chief TA then followed the
appellant down the stairs and informed Chief JH “[y]eah, you all got to go.”21
Shortly thereafter, Chief JH and the appellant departed, in the middle of the
night.
    After reviewing the record of trial and considering the evidence in the
light most favorable to the prosecution, we are convinced that a reasonable
fact-finder could have been convinced beyond a reasonable doubt that, while
in the bedroom, the appellant did bodily harm to Chief TA by rubbing her
shoulders with his hands without her consent. Furthermore, we too are
convinced beyond a reasonable doubt of the appellant’s guilt of the offense of
an assault consummated by a battery of Charge I, Specification 1.
    In considering the factual sufficiency of all three offenses, we find Chief
TA’s testimony to be credible, compelling, and unrebutted. Of note, although
the offenses inflicted upon Chief TA were not observed by other witnesses—
except the appellant’s lying on top of her in the kitchen—her testimony
regarding other key facts of the surrounding events was independently
corroborated by the other witnesses. Furthermore, despite the trial defense
team’s cross-examination efforts, her character for truthfulness remained
intact. The persistent manner in which the appellant pursued and touched
Chief TA and his sexually charged comments regarding her underwear are
overwhelming circumstantial evidence of his intent to gratify his sexual
desires. Finally, despite the appellant’s level of intoxication, there can be no

   18   Id. at 217.
   19   Id. at 217-18.
   20   Id. at 220.
   21   Id. at 399.

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                      United States v. Ellis, No. 201500163


reasonable mistake of fact regarding consent given Chief TA’s repeated, clear,
and escalating responses to the appellant’s actions—demanding that he get
out of the bathroom; calling for assistance from her fellow chief; threatening
to hit him in the head with a hammer; and finally pulling a pistol and telling
him to leave her home.
D. Sentence reassessment
    Having set aside the finding of guilty to some of the language alleged in
Charge I, Specification 2 and Charge II, Specification 1, we must now
determine if we are able to reassess the appellant’s sentence. We have “broad
discretion” when reassessing sentences. United States v. Winckelmann, 73
M.J. 11, 12 (C.A.A.F. 2013). However, we can only reassess a sentence if we
are confident “that, absent any error, the sentence adjudged would have been
of at least a certain severity[.]” United States v. Sales, 22 M.J. 305, 308
(C.M.A. 1986).
   In determining whether to reassess a sentence or to order a sentencing
rehearing, we consider the five factors espoused in our superior court’s
holding in Winckelmann: (1) whether there has been a dramatic change in
the penalty landscape and exposure; (2) the forum of the court-martial; (3)
whether the remaining offenses capture the gravamen of the criminal
conduct; (4) whether significant aggravating circumstances remain
admissible and relevant; and (5) whether the remaining offenses are the type
with which we as appellate judges have experience and familiarity to
reasonably determine what sentence would have been imposed at trial.
Winckelmann, 73 M.J. at 15-16.
    Because our findings do not effect significant changes to the language of
the offenses and do not completely set aside the findings of guilty to any
offense, there is no change in the penalty landscape. The remaining language
captures the gravamen of the criminal conduct for which the members
sentenced the appellant, and the modifications do not render any evidence
presented at trial inadmissible or irrelevant. Furthermore, these are offenses
with which we, as appellate judges, have in depth experience and familiarity.
The evidence of the appellant’s culpability and the harm inflicted on Chief TA
remains the same. We conclude that sentence reassessment is appropriate.
We are confident that, absent the error in this case, the court-martial would
have imposed no less of a sentence than the members adjudged—a letter of
reprimand, reduction to pay grade E-6, and 45 days’ restriction.
E. CMO error
   An appellant is entitled to an official record accurately reflecting the
results of his proceedings. United States v. Crumpley, 49 M.J. 538, 539 (N-M.



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Ct. Crim. App. 1989). We test error in court-martial orders under a harmless-
error standard. Id.
    At a minimum, a court-martial promulgating order must contain the
following information: (1) the type of court-martial and the convening
command; (2) a summary of all charges and specifications on which the
appellant was arraigned; (3) the appellant’s pleas; (4) the findings or
disposition of all charges and specifications on which the appellant was
arraigned; (5) if adjudged, the sentence; and (6) a summary of the action
taken by the CA in the case. RULE FOR COURTS-MARTIAL (R.C.M.)
1114(c)(1), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.)
(emphasis added).
    Although not raised by the parties, we note that the CMO incorrectly
omits the language “forcing her to the ground” from Charge I, Specification 2,
and fails to reflect a summary of and the appellant’s pleas to Charge II,
Specification 2. Here, the appellant was arraigned on and entered pleas of not
guilty to the language and specification omitted from the CMO. Furthermore,
the military judge, on the record, entered findings of not guilty to the omitted
language and specification pursuant to an R.C.M. 917 motion. The failure to
reflect the omitted information in the CMO was error; however, the error was
harmless as it did not materially prejudice the appellant’s substantial rights.
To ensure the appellant has an official record which accurately reflects his
proceedings, in our decretal paragraph we will order that the supplemental
CMO reflect the information omitted in the CMO.
                              III. CONCLUSION
   The approved findings, as modified by this court, and the sentence, as
reassessed, are affirmed.
    The supplemental CMO shall reflect: (1) an accurate summary of Charge
I, Specification 2 which includes the language “forcing her to the ground,” the
appellant’s plea of not guilty to the specification, and the correct findings—
guilty, excepting the language “forcing her to the ground,” excepting the word
“thighs” and substituting therefor the word “thigh,” and excepting the word
“hands” and substituting therefor the word “hand”; not guilty to the excepted
language but guilty to the specification as excepted and substituted; (2) the
findings to Charge II, Specification 1—guilty, excepting the word “breasts”
and substituting therefor the word “breast” and excepting the word “hands”
and substituting therefor the word “hand”; not guilty to the excepted
language but guilty to the specification as excepted and substituted; and (3) a
summary of Charge II, Specification 2 alleging the appellant forced Chief TA




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                     United States v. Ellis, No. 201500163


to the ground with his hands, the appellant’s plea of not guilty to the
specification, and the finding of not guilty to the specification pursuant to
R.C.M. 917.

                                           For the Court



                                           R.H. TROIDL
                                           Clerk of Court




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