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

                                 Before
               J.A. FISCHER, K.M. MCDONALD, D.C. KING
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                      RICHARD MARTINEZ, JR.
              STAFF SERGEANT (E-6), U.S. MARINE CORPS

                            NMCCA 201400327
                        SPECIAL COURT-MARTIAL

Sentence Adjudged: 8 May 2014.
Military Judge: Col J.K. Carberry, USMC.
Convening Authority: Commanding Officer, 3d Marine Regiment
(REIN), 3d Marine Division (-)(REIN), MCBH, Kaneohe Bay,
HI.
Staff Judge Advocate's Recommendation: Maj K.T. Carlisle,
USMC.
For Appellant: LT Ryan Aikin, JAGC, USN.
For Appellee: CDR James E. Carsten, JAGC, USN.

                             24 March 2015

     ---------------------------------------------------
                     OPINION OF THE COURT
     ---------------------------------------------------

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 special court-martial consisting of officer members
convicted the appellant, contrary to his pleas, of two
specifications of assault consummated by a battery and one
specification of disorderly conduct in violation of Articles 128
and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 928 and
934. The members sentenced the appellant to reduction to pay
grade E-3, confinement for 136 days, and a bad-conduct
discharge. The convening authority (CA) approved the sentence
as adjudged.

     The appellant now raises two assignments of error: (1) that
his conviction for disorderly conduct is factually and legally
insufficient because the Government failed to offer evidence of
the terminal element; and (2) that his sentence to a bad-conduct
discharge was inappropriately severe.

     After carefully considering the parties’ briefs and the
record of trial, we set aside the findings as to the disorderly
conduct offense and dismiss that charge and specification with
prejudice. After taking corrective action we conclude the
remaining findings and 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

     The appellant and Petty Officer KE were involved in a
romantic relationship from June 2013 until December 2013. In
October 2013, the appellant moved into KE’s base housing unit
with KE and her four-year-old daughter, AE. On or about 2
November 2013, KE and the appellant mutually engaged in a round
of domestic violence that resulted in KE’s neighbors calling the
police. On 22 December 2013, after AE had been put to bed, KE
and the appellant began arguing again. Eventually, KE asked the
appellant to leave her house; when the appellant refused, KE
picked up her phone to call the Provost Marshal’s Office (PMO).
When she did so, the appellant took the phone away from her,
which formed the basis for the disorderly conduct charge. Next,
KE testified that the appellant grabbed her head with both of
his hands and slammed her head into the wall. 1 The appellant
claimed that KE was assaulting him and he put his hand on her
neck to push her away. This action formed the basis for one of
the battery convictions. KE testified that at a certain point
“I was just crying and asking him to stop by just telling him


1
    The appellant was acquitted of this allegation.


                                        2
that I wanted to go to bed. I just wanted it all to be over.” 2
However, as the assault continued, KE testified that she
screamed and the appellant “stuck his hand in my mouth.” 3 This
action formed the basis for the second battery conviction. When
he did so, KE bit down on his thumb, causing it to bleed. KE
testified that she then helped the appellant wash his hand
because “[a]ll I could think about was getting him to calm down.
I just wanted –- I did say, [l]et’s just go to bed, just calm
down. I don’t – I’m not going to – I said I wasn’t going to
tell anybody that I just wanted to forget about it because I was
scared. And he wouldn’t stop. It just felt like this whole
evening went on for hours, and I just wanted him to stop.” 4 At
that point, afraid that if she did not “it would escalate
again,” KE went upstairs and got into bed with the appellant. 5

     Shortly thereafter, a crying AE came towards KE’s bedroom.
KE got out of bed, took AE back to AE’s bedroom, and lay down
with AE. The appellant then came to AE’s room and angrily
demanded that KE return to her own bedroom. The appellant’s
renewed anger caused KE to grow concerned that the appellant
“was not going to stop.” 6 While the appellant went to the
bathroom, KE returned to her bedroom and searched for her phone
in order to call the PMO. She was unable to find her phone and
the appellant reentered the bedroom. When he did so, KE said
she was going to “make [AE] chocolate milk.” 7 Instead, she took
AE to the car and fled to the PMO. KE testified that she
informed the officers that she was scared and that she “thought
my boyfriend was going to kill me.” 8

     An investigation ensued and resulted in charges being
referred to special court martial. At the close of the


2
    Record at 98.
3
    Id. at 99.
4
    Id. at 120.
5
    Id. at 99, 120.
6
    Id. at 100.
7
    Id.
8
    Id. at 101.
                                3
Government’s case in chief, the defense moved for a finding of
not guilty to Additional Charge II and its sole specification
(the disorderly conduct charge) under RULE FOR COURTS-MARTIAL 917,
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). After permitting
the parties to argue, the military judge stated: “The 917 is
granted as to Additional Charge II and its sole specification.” 9
However, after trial counsel provided additional argument, the
military judge stated, “[w]ell, viewing the evidence in the like
[sic] most favorable to the government, the [917] motion is
denied as to the specification and Additional Charge II.” 10 The
appellant was then convicted on that charge.

                                   Discussion

     Although the appellant does not raise the issue on appeal,
we find the military judge clearly erred in reconsidering his
ruling granting the motion for a finding of not guilty. “A
ruling granting a motion for a finding of not guilty is final
when announced and may not be reconsidered.” R.C.M. 917(f). In
that the appellant was convicted on this charge, we find
material prejudice and will set aside the appellant’s disorderly
conduct conviction. 11

                             Sentence Reassessment

     Having dismissed the disorderly conduct charge, this court
must next determine whether this action has resulted in a
“‘dramatic change in the penalty landscape’ [which] gravitates
away from the ability to reassess” the sentence. United States
v. Buber, 62 M.J. 476, 479 (C.A.A.F. 2006) (quoting United
States v. Riley, 58 M.J. 305, 312 (C.A.A.F. 2003)). The
appellant was convicted at a special court martial where his
punitive exposure was limited to 12 months’ confinement,
reduction to pay grade E-1 and a bad-conduct discharge. The
dismissal of one of the three charges of which he was convicted
does not lower that exposure. Additionally, while we have taken
note of the appellant’s lengthy service, to include service in
combat, we also note the appellant had received nonjudicial

9
     Id. at 128.
10
     Id. at 130.
11
     This action moots the appellant’s first assignment of error.
                                         4
punishment for driving under the influence a short time prior to
the charged misconduct, a fact the Government relied upon
heavily to argue for the bad-conduct discharge. Applying the
analysis set forth in United States v. Sales, 22 M.J. 305
(C.M.A. 1986) and United States v. Moffeit, 63 M.J. 40 (C.A.A.F.
2006), and after carefully considering the entire record, we
conclude that there has not been a dramatic change in the
penalty landscape and are confident that the members would have
adjudged, and the CA would have approved, a sentence at least as
severe as was awarded even absent the disorderly conduct charge.
Art. 66(c), UCMJ; United States v. Winckelmann, 73 M.J. 11
(C.A.A.F. 2013); Sales, 22 M.J. at 308.

                                Conclusion

     The findings of guilty to Additional Charge II and its
sole specification are set aside and Additional Charge II and
its specification are dismissed with prejudice. The remaining
findings are affirmed. The sentence as reassessed is affirmed. 12

                                      For the Court



                                      R.H. TROIDL
                                      Clerk of Court




12
  In light of our sentence reassessment, we have considered the appellant’s
second assignment of error and find no error. United States v. Clifton, 35
M.J. 79, 81 (C.M.A. 1992).
                                      5
