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

                            No. 201700323
                        _________________________

                 UNITED STATES OF AMERICA
                                 Appellee
                                    v.

                         JOHN W. KMIECIK
                   Corporal (E-4), U.S. Marine Corps
                               Appellant
                       _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

        Military Judge: Colonel Joseph P. Lisiecki, USMCR.
 Convening Authority: Commanding General, Marine Corps Recruit
      Depot/Western Recruiting Region, San Diego, California.
 Staff Judge Advocate’s Recommendation: L ieutenant Colonel S. F.
                         Thompson, USMC.
      For Appellant: Commander Brian L. Mizer, JAGC, USN.
          For Appellee: Major David N. Roberts, USMCR;
                  Captain Sean M. Monks, USMC.
                      _________________________

                          Decided 17 May 2018
                          ______________________

Before H UTCHISON , F ULTON , and S AYEGH , 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.
                        _________________________

   SAYEGH, Judge:
   A military judge, sitting as a general court-martial, convicted the
appellant, pursuant to his pleas, of one specification of violating a lawful
general regulation, two specifications of wrongful possession of controlled
substances (marijuana and methylenedioxymethamphetamine (MDMA)), one
specification of wrongful possession with intent to distribute lysergic acid
                     United States v. Kmiecik, No. 201700323


diethylamide (LSD), and one specification of wrongful use of marijuana, in
violation of Articles 92 and 112a, Uniform Code of Military Justice (UCMJ), 10
U.S.C. §§ 892 and 912a. The convening authority approved the adjudged
sentence of 15 months’ confinement, reduction to paygrade E-1, forfeiture of all
pay and allowances for 15 months, and a bad-conduct discharge, and, except
for the punitive discharge, ordered it executed.
    In his sole assignment of error, the appellant asserts the military judge
abused his discretion during presentencing by admitting a signed
acknowledgment from the appellant that he understood the Marine Corps’
policy concerning illegal use of drugs.
   After careful consideration of the record of trial and the pleadings of the
parties, we conclude the findings and the sentence are correct in law and fact,
and that no error materially prejudicial to the substantial rights of the
appellant occurred. Arts. 59(a) and 66(c), UCMJ.
                                     I. BACKGROUND
    In March 2017, the appellant used marijuana. That same day he was the
subject of a traffic stop aboard Camp Pendleton, California, during which he
authorized the military police to search his vehicle. During this search, the
military police seized 17 LSD tablets, 2 marijuana cigarettes, a plastic bag
containing marijuana, and a pipe that was later found to contain marijuana
residue. Also seized were a “Whizzinator” brand artificial penis, plastic
syringe, urine specimen bottle, and a bottle of Clear Eyes Redness Relief.1 The
following day, Criminal Investigation Division agents searched the appellant’s
barracks room and seized another urine specimen bottle, another Whizzinator,
a urine bag, and a pack of “cigarillos.”2 Also seized were two notebooks that the
appellant admits were used by him to “[record] such information as names of
buyers, amount of substances sold, prices, and related information.”3
   During presentencing, the military judge admitted, over the trial defense
counsel’s (TDC) objections, Prosecution Exhibit (PE) 2, a “Statement of
Understanding Marine Corps Policy Concerning Illegal Use of Drugs.” This
one-page document was signed by the appellant as an “applicant” in 2012
during his enlistment process. The document is also signed by his recruiter and
a “MEPS Liaison” as verifiers. This document provides in pertinent part:
         The purpose of this document is to make sure that you
         completely understand the Marine Corps policy on the illegal

   1   Prosecution Exhibit 1 at 6.
   2   Id.
   3   Id. at 7.



                                           2
                    United States v. Kmiecik, No. 201700323


         use of drugs. . . The illegal distribution, possession or use of
         drugs is not tolerated in the United States Marine Corps. . . . I
         certify that I completely understand the Marine Corps policy on
         the illegal use of drugs.4
                                  II. DISCUSSION
    When a military judge admits evidence in aggravation during sentencing
over defense objection, we review for an abuse of discretion. United States v.
Ashby, 68 M.J. 108, 120 (C.A.A.F. 2009) (citing United States v. Stephens, 67
M.J. 233, 235 (C.A.A.F. 2009)). If we conclude the military judge has abused
his discretion, we must then determine whether the appellant was materially
prejudiced by the admission of evidence that “substantially influenced the
adjudged sentence.” United States v. Griggs, 61 M.J. 402, 410 (C.A.A.F. 2005)
(citation omitted).
  RULE FOR COURTS-MARTIAL (R.C.M.) 1001(b)(4), MANUAL FOR COURTS-
MARTIAL (MCM), UNITED STATES (2016 ed.) provides:
         The trial counsel may present evidence as to any aggravating
         circumstances directly relating to or resulting from the offenses
         of which the accused has been found guilty. Evidence in
         aggravation includes, but is not limited to, evidence of financial,
         social, psychological, and medical impact on or cost to any person
         or entity who was the victim of an offense committed by the
         accused and evidence of significant adverse impact on the
         mission, discipline, or efficiency of the command directly and
         immediately resulting from the accused’s offense.
The prosecution “may present evidence as to any aggravating circumstances
directly relating to or resulting from the offenses of which the accused has
been found guilty.” United States v. Nourse, 55 M.J. 229, 231 (C.A.A.F. 2001)
(citing R.C.M. 1001(b)(4)) (emphasis in original). Aggravation evidence must
meet a higher standard than “mere relevance.” United States v. Rust, 41 M.J.
472, 478 (C.A.A.F. 1995). Further, “[e]ven if admissible under R.C.M.
1001(b)(4), the evidence must pass the balancing test of [MILITARY RULE OF
EVIDENCE (MIL. R. EVID.) 403, MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2016 ed.)].” Ashby, 68 M.J. at 120.
   Citing to United States v. Hardison, 64 M.J. 279 (C.A.A.F. 2007), the TDC
made a timely objection to PE 2, arguing that it was improper sentencing
evidence under R.C.M. 1001(b)(4) because it did not result from, or relate to,



   4   PE 2.



                                         3
                       United States v. Kmiecik, No. 201700323


the crimes for which the appellant was convicted.5 The military judge ruled
from the bench:
         Okay. I will overrule the objection. [PE] 2 for identification shall
         be admitted into evidence; the words “for identification” have
         been stricken. I’ll consider it [for] whatever value it may have.6
    The military judge did not articulate his basis for overruling the defense
objection to PE 2. Thus, we are unable to determine how he concluded PE 2
was “directly related to or resulting from” the offenses for which the
appellant was found guilty. R.C.M. 1001(b)(4). Likewise, the military judge
did not articulate his MIL. R. EVID. 403 analysis. Therefore, we give the
military judge’s decision no deference and will examine the record ourselves.
United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000).
    In Hardison, the Court of Appeals for the Armed Forces (CAAF) held there
was “no way” the signing of a drug policy statement offered by the government
to show an accused knew of a service’s policy against drug use could be used as
valid aggravation where the appellant had no other choice but to sign it.
Hardison, 64 M.J. at 283. (citing United States v. Kirkpatrick, 33 M.J. 132, 133
(C.M.A. 1991). As in Hardison, the appellant here had no option but to sign the
policy statement as part of his enlistment application. This point was
emphasized by the CAAF in Hardison:
         In the context of drug offenses, the military’s policy on drug use,
         signed by all recruits, would be equally admissible as
         aggravating evidence, demonstrating as trial counsel argued in
         this case, aggravation on the ground that the accused knew the
         Navy’s drug policy and violated it anyway. Such an approach
         would make the President’s choice of the words “directly related”
         devoid of meaning.
Id. at 283.
   Following the CAAF’s holding in Hardison, and given the facts of this case,
we find the military judge abused his discretion in admitting PE 2 over the
appellant’s objection. Having found the military judge abused his discretion,
our examination now turns to prejudice; which requires that we determine if
the error substantially influenced the adjudged sentence. Griggs, 61 M.J. at
410. In determining whether an error substantially influenced the sentence,
we “consider 1) the probative value and weight of the evidence;         2) the
importance of the evidence in light of other sentencing considerations; 3) the
danger of unfair prejudice resulting from the evidentiary ruling; and 4) the

   5   Record at 46.
   6   Id.

                                          4
                       United States v. Kmiecik, No. 201700323


sentence actually imposed, compared to the maximum and to the sentence the
trial counsel argued for.” United States v. Edwards, 65 M.J. 622, 626 (N-M. Ct.
Crim. App. 2007) (citations omitted).
   The trial counsel (TC) specifically referenced PE 2 in his sentencing
argument:
         Sir, you have in front of you [PE] 2, his acknowledgement of the
         Marine Corps’ drug policy. One of the very first documents as a
         brand new join to the Marine Corps that Corporal Kmiecik
         would have seen. He knew from the time he entered the Marine
         Corps that drug use, drug distribution was not tolerated.7
However, the military judge indicated on the record that he would only
consider PE 2 “for whatever value it may have.”8 This suggests the military
judge–an “experienced and professional military lawyer[]”–attached little
probative value to this obviously insignificant matter in aggravation.
Hardison, 64 M.J. at 284 (citing United States v. McNutt, 62 M.J. 16, 26
(C.A.A.F. 2005) (quoting United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F.
1999)).
    Further, PE 2 was relatively unimportant compared to other sentencing
considerations. The drug offenses for which the appellant was convicted were
extensive and involved four different types of illegal drugs, with the intent to
distribute one of them—LSD—for profit.9 He was also convicted of possessing
drug paraphernalia and two –“Whizzinator”—masking devices used to defeat
urinalysis testing.10 His service record was average and included four separate
adverse counselings for insubordination, smoking on duty, possession of liquor
in the barracks, and possession of synthetic marijuana.11 As a result, the
danger of any unfair prejudice resulting from the military judge’s erroneous
admission of PE 2 was low. Finally, the adjudged 15-month sentence to
confinement and bad-conduct discharge was substantially below the maximum
authorized sentence of 26 years and a dishonorable discharge, and the TC’s
requested sentence of 30 months’ confinement and a dishonorable discharge
   Considering the record as a whole, we are confident the sentence imposed
by the military judge was not substantially influenced by the information



   7   Record at 57.
   8   Id. at 46.
   9   Id. at 33.
   10   Id. at 25.
   11   PE 3 at 1-4.

                                          5
                 United States v. Kmiecik, No. 201700323


contained in PE 2. Accordingly, we conclude the appellant suffered no material
prejudice to a substantial right.
                              III. CONCLUSION
   The findings and sentence are affirmed.

   Senior Judge HUTCHISON and Judge FULTON concur.

                                      For the Court




                                      R.H. TROIDL
                                      Clerk of Court




                                      6
