               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.

                        MONIFA J. STERLING
               LANCE CORPORAL (E-3), U.S. MARINE CORPS

                            NMCCA 201400150
                         SPECIAL COURT-MARTIAL

Sentence Adjudged: 1 February 2014.
Military Judge: Maj N.A. Martz, USMC.
Convening Authority: Commanding Officer, Headquarters
Group, II Marine Expeditionary Force, Camp Lejeune, NC.
Staff Judge Advocate's Recommendation: LtCol G.W. Riggs,
USMC.
For Appellant: CAPT Tierney Carlos, JAGC, USN.
For Appellee: LCDR Keith Lofland, JAGC, USN; LT Amy
Freyermuth, JAGC, USN.

                           26 February 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.

KING, Judge:

     A special court-martial consisting of officer and enlisted
members convicted the appellant, contrary to her pleas, of
failing to go to her appointed place of duty, disrespect towards
a superior commissioned officer, and four specifications of
disobeying the lawful order of a noncommissioned officer (NCO),
in violation of Articles 86, 89, and 91, Uniform Code of
Military Justice, 10 U.S.C. §§ 886, 889, and 891. 1 The members
sentenced the appellant to be reduced to pay grade E-1 and a
bad-conduct discharge. The convening authority approved the
sentence as adjudged.
     The appellant now raises six assignments of error: (1) the
military judge erred by failing to sua sponte instruct the
members on the defense of mistake of fact; (2) the evidence that
the appellant was disrespectful to a superior commissioned
officer was legally and factually insufficient; (3) the military
judge erred by finding that an order to remove religious quotes
from the appellant’s workspace was a lawful order because (a)
the order violated the appellant’s right to freely exercise her
religion and (b) the order did not have a valid military
purpose; (4) Specifications 1 and 4 of Charge III represented an
unreasonable multiplication of charges; (5) the military judge
erred by permitting the Government to introduce impermissible
evidence during the presentencing phase of the trial; and (6)
the sentence was inappropriately severe. This court heard oral
argument on assignment of errors 3 and 5.
     After carefully considering the pleadings of the parties,
the record of trial, and the oral arguments, 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. 2 Arts. 59(a) and 66(c), UCMJ.
                                 Background

     In May of 2013, the appellant’s duties included sitting at
a desk and utilizing a computer to assist Marines experiencing
issues with their Common Access Cards. The appellant printed
three copies of the biblical quote “no weapon formed against me
shall prosper” on paper in 28 point font or smaller. The
appellant then cut the quotes to size and taped one along the
top of the computer tower, one above the computer monitor on the
desk, and one above the in-box. The appellant testified that
she is a Christian and that she posted the quotation in three
places to represent the Christian trinity. At trial, the
parties referred to these pieces of paper as “signs.” The signs
were large enough for those walking by her desk to read them.


1
  The appellant was acquitted of making a false official statement in
violation of Article 107, UCMJ.
2
  We have considered assignments of error (2) and (6) and find no error.
United States v. Clifton, 35 M.J. 79, 81 (C.M.A. 1992).
                                      2
     On or about 20 May 2013, Staff Sergeant (SSgt) Alexander
ordered the appellant to remove the signs. The appellant
refused and the SSgt removed them herself. The next day, the
SSgt saw the signs had been replaced and again ordered the
appellant to remove them. When the signs had not been removed
by the end of the day, SSgt Alexander again removed them
herself.
     In August of 2013, the appellant was on limited duty for a
hip injury and wore a back brace and TENS unit during working
hours. 3 The medical documentation (chit) included a handwritten
note stating that “[w]earing charlies & TENS unit 4 will be
difficult, consider allowing her to not wear charlies.” 5 The
uniform of the day on Fridays for the appellant’s command was
the service “C” uniform and when the appellant arrived at work
on a Friday in her camouflage utility uniform, SSgt Morris
ordered her to change into service “C” uniform. The appellant
refused, claiming her medical chit exempted her from the uniform
requirement. After speaking with medical, SSgt Morris again
ordered the appellant to change into the service “C” uniform.
The appellant again refused. SSgt Morris then brought the
appellant to First Sergeant (1stSgt) Robinson who repeated the
order. Again, the appellant refused.
     On 12 September 2013, 1stSgt Robinson ordered the appellant
to report to the Pass and Identification building at the front
gate on Sunday, 15 September 2013, from 1600 until approximately
1930 to help distribute vehicle passes to family members of
returning deployed service members. This was a duty the
appellant had performed before. The appellant refused, showing
1stSgt Robinson a separate medical chit that she had been
provided to treat a “stress reaction.” This chit recommended
that the appellant be exempted from standing watch and
performing guard duty. 6 Additionally, on 03 September 2013, the
appellant was prescribed a medication to help prevent the onset
of migraine headaches. 7
     On 13 Sept 2013, the appellant was ordered to report to
Major (Maj) Flatley. When she did so, Maj Flatley ordered the
3
  TENS refers to a small machine that transmits pulses to the surface of the
skin and along nerve strands.
4
    “Charlies” refers to the Marine service “C” uniform.
5
    Defense Exhibit B.
6
    DE A.
7
    Appellate Exhibit XXXIX.
                                        3
appellant to report to Pass and Identification on 15 September
2103 to issue vehicle passes and ordered her to take the passes
with her. The appellant told Maj Flatley that she would not
comply with the order to report and refused to accept the
passes. On 15 September 2013, the appellant did not report as
ordered.
     Additional facts necessary for the resolution of each
assignment of error are developed below.
                          Mistake of Fact Instruction

     The appellant first argues that the military judge erred in
failing to sua sponte instruct the members on mistake of fact
for the allegations that the appellant failed to go to her
appointed place of duty as well as the allegations that she
twice willfully disobeyed the order of a noncommissioned officer
to don her service “C” uniform.
     Whether a jury was properly instructed is a question of law
we review de novo. United States v. Payne, 73 M.J. 19, 22
(C.A.A.F. 2014). “Mistake of fact” is a special defense and
provides:
        If the ignorance or mistake goes to an element
        requiring premeditation, specific intent, willfulness,
        or knowledge of a particular fact, the ignorance or
        mistake need only have existed in the mind of the
        accused. If the ignorance or mistake goes to any
        other element requiring only general intent or
        knowledge, the ignorance or mistake must have existed
        in the mind of the accused and must have been
        reasonable under all the circumstances.
RULE   FOR   COURTS-MARTIAL 916(j)(1), MANUAL   FOR   COURTS MARTIAL (2012 ed.)
     A military judge has a sua sponte duty to give a mistake of
fact instruction when the defense is reasonably raised by the
evidence. R.C.M. 920(e)(3). The defense is “reasonably raised”
by the evidence when “some evidence, without regard to its
source or credibility, has been admitted upon which members
might rely if they choose.” United States v. Lewis, 65 M.J. 85,
87 (C.A.A.F. 2007) (citations and internal quotation marks
omitted).
     The evidence relevant to mistake of fact admitted at trial
included Defense Exhibits A and B. DE A was a “light duty”
medical chit then in effect recommending the appellant be
exempted from watch standing or guard duty. DE B was a “limited

                                        4
duty” medical chit stating that “wearing charlies and TENS unit
will be difficult, consider allowing her to not wear charlies.”
Additionally, the appellant testified that the limitations set
forth in the chits were “orders, they’re not recommendations”
and that she interpreted the handwritten note on DE B as
authority to refuse to wear the service “C” uniform because
doing so “interferes with comfortable wearing of the devices so
I’m to follow it for limited duty.” 8 Assuming, arguendo, that
this quantum of evidence is sufficient to trigger the military
judge’s sua sponte duty to provide a mistake of fact
instruction, we will analyze the failure to provide it for
prejudice.
     The failure to provide a required special instruction is
constitutional error. United States v. McDonald, 57 M.J. 18, 20
(C.A.A.F. 2002). The test for determining whether
constitutional error was harmless is whether it appears “‘beyond
a reasonable doubt that the error complained of did not
contribute to the verdict obtained.’” Id. (quoting Chapman v.
California, 386 U.S. 18, 24 (1967)). “Stated differently, the
test is: ‘Is it clear beyond a reasonable doubt that a rational
jury would have found the defendant guilty absent the error?’”
Id. (quoting Neder v. United States, 527 U.S. 1, 18 (1999)).
     Failing to go to an appointed pace of duty is a general
intent crime. Therefore, any mistake of fact must be both
honest and reasonable   While the appellant may have offered
some evidence at trial that she honestly believed that DE A’s
recommended limitations exempted her from standing duty, the
evidence indicating that this belief was unreasonable was
substantial. To begin with, the plain language of DE A makes it
clear that the limitations are “recommendations.” While we
recognize that medically-recommended duty limitations are
routinely adopted by commanders, there is no evidence in the
record to support a reasonable belief that these recommendations
were “orders.” Moreover, the appellant conceded that her
inability to stand duty would have been caused by her taking a
medication as a proactive measure to prevent the onset of
migraines. The appellant introduced evidence that the
medication could produce side effects including dizziness,
drowsiness, “alert issues,” and numbness in hands, feet, and
tongue, and was therefore prescribed to be taken at night. 9
However, while admitting that she normally took the medication
as prescribed, the appellant insisted that she had to take the

8
    Record at 268.
9
    Id. at 327-28.
                                5
medication hours earlier on 15 September 2013 because she would
be attending church services, which she believed could trigger a
migraine. Therefore, because she planned to take the medication
by the time her appointed duty would have commenced, she
concluded that she could not report to her appointed place of
duty.
     In a mistake of fact analysis, the appellant’s assumption
that her choice of activities would necessitate medicating
herself early--contrary to the prescription--such that she
believed she would have rendered herself unfit to report to her
appointed place of duty is unreasonable. Other than the
appellant’s personal desire, there was no reason she could not
have taken the medication as prescribed, thus enabling her to
report as ordered. Under these circumstances, we are not
persuaded in the least that any member would have found any
mistaken belief reasonable.
     Mistake of fact involving willful disobedience to a
noncommissioned officer “need only have existed in the mind of
the accused” even if the mistake was unreasonable. R.C.M.
916(j)(1). When considering whether the appellant honestly
believed she was exempt from wearing service “C” uniform, we
again turn to the plain language of the chit, which could not be
more clear: “May wear TENS unit and brace during working hours
under dress uniform.” The handwritten modification to the chit
does little to support that a belief to the contrary was
honestly held: “wearing charlies & TENS unit will be difficult,
consider allowing her to not wear charlies.” The language the
appellant maintains caused her to believe that she was exempt
from wearing the service “C” uniform plainly provides otherwise.
Additionally, we note that after the appellant informed SSgt
Morris that she was not permitted to wear service “C” uniform,
the appellant invited SSgt Morris to speak directly to medical
personnel. SSgt Morris immediately did so and was told that the
appellant was able to wear service “C” uniform. Accordingly,
SSgt Morris again ordered the appellant to don the service “C”
uniform, providing the appellant further confirmation that she
was not exempt from wearing her service “C” uniform. Indeed,
with the exception of the appellant’s testimony--itself
incredible in light of the facts--there is simply no evidence
that would permit a rational member to conclude that the
appellant honestly believed she was exempt from obeying the
orders. For these reasons, we hold that any erroneous failure
to instruct the members on mistake of fact was harmless beyond a
reasonable doubt.



                                6
                   Legality of Order to Remove Signs

     Next, the appellant attacks her convictions for failing to
obey the lawful orders to remove the signs. First, the
appellant argues that the order violated the appellant’s right
to exercise her religion as guaranteed under the First Amendment
to the Constitution. Second, the appellant asserts that the
order lacked a valid military purpose.
     At trial, the appellant personally raised a challenge to
the legality of the order to remove the signs on grounds that it
was “unlawful under the grounds of my religion.” 10 She testified
that the three signs represented the trinity and were a
“personal . . . mental reminder to me when I come to work, okay.
You don’t know why these people are picking on you.” 11 After
hearing evidence and argument, the military judge ruled that the
orders were lawful in that they were “related to a specific
military duty.” 12 Specifically, the military judge ruled: “the
orders were given because the workspace in which the accused
placed the signs was shared by at least one other person[,]
[t]hat other service members come to [the] accused’s workspace
for assistance at which time they could have seen the signs.” 13
The military judge determined that the signs’ quotations,
“although . . . biblical in nature . . . could easily be seen as
contrary to good order and discipline.” 14 Finally, without
supporting findings of fact or conclusions of law, the military
judge ruled that the order to remove the signs “did not
interfere with the accused’s private rights or personal affairs
in anyway [sic]” and denied the appellant’s motion to dismiss. 15
This court reviews de novo the question of whether the military
judge correctly determined that an order was lawful. United
States v. New, 55 M.J. 95, 106 (C.A.A.F. 2001).
                   Religious Freedom Restoration Act

     The Free Exercise Clause of the First Amendment to the
Constitution indicates the Government cannot “prohibit[] the
free exercise” of religion. This prohibition is codified, in

10
     Id. at 280.
11
     Id. at 310.
12
     Id. at 362.
13
     Id.
14
     Id.
15
     Id.
                                   7
part, in the Religious Freedom Restoration Act (RFRA), 42 U.S.C.
§ 2000bb, which prohibits the Government from placing a
substantial burden on religious exercise without a compelling
justification. 42 U.S.C. § 2000bb(a)(3). “Religious exercise”
is defined to include “any exercise of religion, whether or not
compelled by, or central to, a system of religious belief.” 42
U.S.C. §2000cc-5(7)(a). Accordingly, in order to invoke the
protection of the RFRA, the appellant must first demonstrate
that the act of placing the signs on her workstation is
tantamount to a “religious exercise.”
     We begin our analysis of this assignment of error by
recognizing the deference courts pay to questions regarding the
importance of religious exercises to belief systems. See
Employment Div. v. Smith, 494 U.S. 872, 887 (1990) (“Judging the
centrality of different religious practices is akin to the
unacceptable business of evaluating the relative merits of
differing religious claims.” (citation and internal quotation
marks omitted)); Hernandez v. Comm’r, 490 U.S. 680, 699 (1989)
(“It is not within the judicial ken to question the centrality
of particular beliefs or practices to a faith, or the validity
of particular litigants’ interpretations of those creeds.”);
Frazee v. Ill. Dep't of Employment Sec., 489 U.S. 829, 834
(1989) (explaining that the fact some Christian denominations do
not “compel[]” their adherents to refuse Sunday work does not
diminish the constitutional protection the belief enjoys);
Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707,
716 (1981) (“Courts are not arbiters of scriptural
interpretation”); Fowler v. Rhode Island, 345 U.S. 67, 70 (1953)
(“[I]t is no business of courts to say that what is a religious
practice or activity for one group is not religion under the
protection of the First Amendment.”).
     However, that is not to say that there are no limitations,
for “[o]nly beliefs rooted in religion are protected by the Free
Exercise Clause, which, by its terms, gives special protection
to the exercise of religion.” Thomas, 450 U.S. at 713.
Additionally, although broad, we believe the definition of
a “religious exercise” requires the practice be “part of a
system of religious belief.” 42 U.S.C. §2000cc-5(7)(A).
Personal beliefs, grounded solely upon subjective ideas about
religious practices, “will not suffice” because courts need some
reference point to assess whether the practice is indeed
religious. See Wisconsin v. Yoder, 406 U.S. 205, 215-16 (1972)
(recognizing for purposes of a First Amendment inquiry that
individuals are not free to define religious beliefs solely
based upon individual preference). For these reasons, we reject
the appellant’s invitation to define “religious exercise” as any
                                8
action subjectively believed by the appellant to be “religious
in nature.” 16
     Here, the appellant taped a biblical quotation in three
places around her workstation, organized in a fashion to
“represent the trinity.” While her explanation at trial may
invoke religion, there is no evidence that posting signs at her
workstation was an “exercise” of that religion in the sense that
such action was “part of a system of religious belief.” Indeed,
the appellant never told her SSgt that the signs had a religious
connotation and never requested any religious accommodation to
enable her to display the signs. 17 Instead, the record supports
the conclusion that the appellant was simply placing what she
believed to be personal reminders that those she considered
adversaries could not harm her. Such action does not trigger
the RFRA.
                            Valid Military Purpose

     The appellant also argues that the military judge erred by
finding the orders to remove the signs had a valid military
purpose.
     Military orders are presumed to be lawful and are disobeyed
at the subordinate’s peril. MANUAL FOR COURTS-MARTIAL, UNITED STATES
(2012 ed.), Part IV, ¶ 14c(1)(d)(2)(a)(i). To sustain the
presumption of lawfulness, “‘the order must relate to military
duty, which includes all activities reasonably necessary to
accomplish a military mission, or safeguard or promote the
morale, discipline, and usefulness of members of a command and
directly connected with the maintenance of good order in the
service.’” United States v. Moore, 58 M.J. 466, 467-68
(C.A.A.F. 2003) (quoting MCM, Part IV, ¶ 14c(2)(a)(iii)). To be
lawful, an order must (1) have a valid military purpose, and (2)
be clear, specific, and narrowly drawn. Id. at 468; United
States v. Womack, 29 M.J. 88, 90 (C.M.A. 1989). The lawfulness
of an order is a legal question for the military judge to decide
at trial, New, 55 M.J. at 105, and this court reviews the trial
judge's decision de novo, Moore, 58 M.J. at 467.


16
     Appellant’s Brief of 8 Aug 2014 at 26.
17
  Secretary of the Navy Instruction 1730.8B (Ch. 1, 28 Mar 2012) regulates
the accommodation of religious practices in the Department of the Navy and
requires requests for religious accommodations be submitted in writing to the
command. We leave for another day what impact, if any, the failure to first
request an accommodation will have on the lawfulness of an order to refrain
from engaging in one.


                                         9
     After receiving evidence and hearing argument, the military
judge found that the “orders were given because the workspace in
which the accused placed the signs was shared by at least one
other person[,] [t]hat other service members came to the
accused’s workspace for assistance at which time they could have
seen the signs. The court also finds that the signs, although
the verbiage . . . [was] biblical in nature, read something to
the effect of no weapon found [sic] against me shall prosper ...
which could easily be seen as contrary to good order and
discipline.” 18 Although these meager findings of fact fail to
illuminate why the military judge believed the signs verbiage
“could easily be seen as contrary to good order and
discipline[,]” we are able to glean from the record sufficient
information to affirm his ruling.
     First, the military judge found that the signs verbiage was
biblical in nature, that the desk was shared with another
Marine, and the signs were visible to other Marines who came to
the appellant’s desk for assistance. The implication is clear—
the junior Marine sharing the desk and the other Marines coming
to the desk for assistance would be exposed to biblical
quotations in the military workplace. It is not hard to imagine
the divisive impact to good order and discipline that may result
when a service member is compelled to work at a government desk
festooned with religious quotations, especially if that service
member does not share that religion. The risk that such
exposure could impact the morale or discipline of the command is
not slight. Maintaining discipline and morale in the military
work center could very well require that the work center remain
relatively free of divisive or contentious issues such as
personal beliefs, religion, politics, etc., and a command may
act preemptively to prevent this detrimental effect. To the
extent that is what the military judge determined to be the
case, we concur. 19


18
     Record at 362.
19
   We are sensitive to the possible implication that such orders may have on
the service member’s Free Exercise and Free Speech rights under the First
Amendment to the Constitution and we have carefully considered the
appellant’s rights thereunder. While not convinced that displaying religious
text at a shared government workstation would be protected even in a civilian
federal workplace (see e.g. Berry v. Dep't of Soc. Servs., 447 F.3d 642 (9th
Cir. 2006) (holding that a state may prohibit an employee from posting
religious signs in his workspace when clients routinely entered that
workspace for purposes of consulting with an agent of the state), it is well-
settled that “review of military regulations challenged on First Amendment
grounds is far more deferential than constitutional review of similar laws or
regulations designed for civilian society[,]” Goldman v. Weinberger, 475 U.S.
                                     10
     Second, examination of this record indicates the existence
of a contentious relationship between the appellant and her
command, even prior to the charged misconduct. In fact, the
appellant testified that her purpose for placing the signs was
to encourage her during those difficult times and that her SSgt
ordered her to remove the signs because the SSgt didn’t “like
their tone.” 20 While locked in an antagonistic relationship with
her superiors--a relationship surely visible to other Marines in
the unit--placing visual reminders at her shared workspace that
“no weapon formed against me shall prosper” could certainly
undercut good order and discipline. When considered in context,
we find that the verbiage in these signs could be interpreted as
combative and agree with the military judge that the signs
placement in the shared workspace could therefore “easily be
seen as contrary to good order and discipline.” 21 For this
reason as well, the orders to remove the signs were lawful.
                   Unreasonable Multiplication of Charges
     The appellant next argues that she was prejudiced by being
convicted of two specifications for violating an order to change
into the uniform of the day on 23 August 2013. 22
     “What is substantially one transaction should not be made
the basis for an unreasonable multiplication of charges against
one person.” R.C.M. 307(c) (4). We review five non-exclusive
factors from United States v. Quiroz, 55 M.J. 334, 338-39
(C.A.A.F. 2001), to determine whether there is an unreasonable
multiplication of charges. These factors are weighed together,
and “one or more factors may be sufficiently compelling.”
United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012).

503, 507 (1986). See also, United States v. Brown, 45 M.J. 389, 396
(C.A.A.F. 1996) (“the right of free speech in the armed services . . . must
be brought into balance with the paramount consideration of providing an
effective fighting force for the defense of our Country.”). Moreover, in
Parker v. Levy, 417 U.S. 733, 759 (1974), the Supreme Court held the military
may restrict the service member's right to free speech in peace time because
speech may “undermine the effectiveness of response to command.” We apply
these principles here and remain satisfied that the orders were lawful.
20
     Record at 312.
21
     Id. at 362.
22
  Specification 1 of Charge III alleges that the appellant, on or about 23
August 2013, disobeyed the order of 1stSgt Robinson to “put on the uniform of
the day.” Specification 4 of Charge III alleges that the appellant, on or
about 23 August 2013, disobeyed the order of SSgt Morris to “change into the
uniform of the day.”


                                     11
These factors, and their application to these facts, are as
follows:
        1. Whether the appellant objected at trial.   She did
        not.
        2. Whether each charge and specification is aimed at
        distinctly separate criminal acts. They are.
     The record indicates that even though both instances of
disobedience occurred on the same day and involved the same
order, time and events took place between the orders sufficient
to constitute separate acts. Specifically, SSgt Morris first
ordered the appellant to put on the proper uniform during the
morning of 23 August 2103. The appellant responded that “she
would not put it on because she had a medical chit out there
stating that she could not wear the [proper] uniform.” 23 The
SSgt then checked the appellant’s record book for the medical
chit. Unable to find it, he went directly to medical to
ascertain the appellant’s limitations. After medical informed
the SSgt that the appellant could indeed wear the proper
uniform, he once again ordered the appellant to do so. Once
again the appellant refused. SSgt Morris reported the issue to
1stSgt Robinson who then discussed the issue with Sergeant Major
(SgtMaj) Shaw, who had previously permitted the appellant to
abstain from wearing service “C” uniform on Friday. After that
conversation, 1stSgt Robinson ordered the appellant to don the
proper uniform. Again, the appellant refused. We find that
refusing the SSgt’s order after he clarified the medical
limitations was a distinct act separate from the appellant’s
refusal of the 1stSgt’s order after he sought guidance from the
SgtMaj.
       3. Whether the number of charges and specifications
       misrepresent or exaggerate the appellant's criminality.
       They do not, for the reasons discussed supra.
       4. Whether the number of charges and specifications
       unreason-ably increase the appellant's punitive
       exposure. They do not. Because the appellant was
       tried at a special court-martial the jurisdictional
       limits on authorized punishments prevented the
       appellant's punitive exposure from being unreasonably
       increased.
       5. Whether there is any evidence of prosecutorial
       overreaching or abuse in the drafting of the charges.

23
     Record at 188.
                                  12
       Since the two specifications were aimed at distinctly
       separate acts, we conclude there is no evidence of
       prosecutorial abuse.
     Applying these factors to this case, we conclude that the
charges were not unreasonably multiplied.
                                Sentencing Evidence

     We next address the appellant’s contention that the
military judge erred by erroneously admitting presentencing
evidence that the appellant “was responsible for the misconduct
and poor performance of other Marines.” 24
     At presentencing, the Government called three witnesses.
In response to trial counsel’s question about how the
appellant’s misconduct affected the unit, the witnesses
testified as follows:
1.     1stSgt Robinson:
        [D]ue to the fact of excessive misconduct with lack of
        repercussions led the perception to other Marines that
        it was okay – and we saw a slight spike in misconduct
        in the unit due to that. And even some Marines coming
        in for nonjudicial punishment would say that, you
        know, they didn’t see anything happen to her and
        little comments of that nature. So, it greatly
        impacted the unit negatively with her misconduct,
        sir. 25
2.     SSgt Alexander:
        [T]he Marines that were around it would see the effect
        of the situations and would think that they could do
        what they wanted to–the disrespect toward me as a
        staff NCO. 26
3.     SgtMaj Shaw:
       [I]t was very noticeable that many of the      Marines that
       she would come in contact with and become      friends with,
       their attitude would change in a negative      aspect and
       their personal discipline would also drop      off over a

24
     Appellant’s Brief at 39.
25
     Record at 400.
26
     Id. at 402.


                                        13
       short period of time until they would get some
       counseling and be brought back into the fold, so to
       speak. 27
During his sentencing argument, the trial counsel stated:
        You heard from the [SgtMaj], you heard from the
        [1stSgt], and you heard from [SSgt Alexander]. You
        heard how it affected the unit, how they spent man-
        hours dealing with her misconduct when it could have
        been spent looking forward and accomplishing the
        mission. You also heard how it affected other Marines
        negatively. And how they’ve had to be counsel[ed],
        some more man-hours had to be spent on these other
        Marines that were negatively influenced by [the
        appellant] and her misconduct. 28

     The appellant now argues that this evidence was
inadmissible because the evidence blamed the appellant for the
“lack of repercussions” and therefore impermissibly implied that
she was “responsible for the misconduct of other Marines.” 29

     In the absence of a defense objection, we review a claim of
erroneous admission of presentencing evidence for plain error.
United States v. Hardison, 64 M.J. 279, 281 (C.A.A.F. 2007).
Plain error is established when: (1) an error was committed; (2)
the error was plain, or clear, or obvious; and (3) the error
resulted in material prejudice to substantial rights. Id.    The
appellant has the burden of persuading the court that the three
prongs of the plain error test are satisfied. United States v.
Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005).
     Pursuant to R.C.M. 1001(b)(4), trial counsel may present
sentencing 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 . . . significant
adverse impact on the mission, discipline, or efficiency of the
command directly and immediately resulting from the accused’s
offense.” The phrase “directly relating to or resulting from
the offenses” imposes a “higher standard” than “mere relevance.”
United States v. Gordon, 31 M.J. 30, 36 (C.M.A. 1990). The
appellant is not responsible for a never-ending chain of causes

27
     Id. at 405.
28
     Id. at 415.
29
     Appellant’s Brief at 39.
                                  14
and effects. United States v. Rust, 41 M.J. 472, 478 (C.A.A.F.
1995). Instead, such evidence is admissible on sentence only
when it shows “‘the specific harm caused by the defendant.’”
Id. at 478 (quoting Payne v. Tennessee, 501 U.S. 808, 825
(1991)).
     The testimony of SSgt Alexander and SgtMaj Shaw is
susceptible to different interpretations. However, under a
plain error analysis, we decline to draw the conclusions
regarding these witnesses’ testimony that the appellant
suggests. Instead, SSgt Alexander’s testimony that “the Marines
that were around it” could reasonably been referring to the
appellant’s action of refusing to remove the signs and replacing
them after SSgt Alexander removed them. Similarly, SgtMaj
Shaw’s testimony that those in contact with the appellant would
suffer a drop in “personal discipline” could reasonably refer to
the appellant’s combative relationship with the command, during
which she was disobeying orders and failing to go to her
appointed place of duty. In these contexts, the witnesses’
testimony was proper and we therefore decline to find plain
error.
     However, 1stSgt Robinson essentially testified that the
time that elapsed from misconduct to sentencing equated to a
“lack of repercussions” which created the “perception to other
Marines that it was okay” to commit misconduct or to disrespect
a Staff NCO. The time it takes to process a court martial, at
least though referral, is solely within the Government’s
control. Any adverse perceptions that result from that process
are not appropriately attributed to the appellant. In this we
agree with our sister court that to conclude otherwise would
permit the trial counsel to “argue to the sentencing authority
at trial that the accused may be punished more harshly for the
inconvenience of the trial. This would be akin to allowing
comment upon the right to plead not guilty or remain silent, and
we cannot countenance such an unjust outcome.” United States v.
Fisher, 67 M.J. 617 (Army Ct.Crim.App. 2009) (citation omitted).
Therefore, we find that allowing this testimony was plain and
obvious error.
     Having found error, we test for material prejudice.
Erroneous admission of evidence during the sentencing portion of
a court-martial causes material prejudice to an appellant's
substantial rights only if the admission of the evidence
substantially influenced the adjudged sentence. United States
v. Griggs, 61 M.J. 402, 410 (C.A.A.F. 2005). To make this
determination, we weigh factors on both sides. United States v.
Eslinger, 70 M.J. 193, 201 (C.A.A.F. 2011). On the one hand, we

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note that the erroneously admitted testimony was relied upon by
the trial counsel during argument. 30 On the other, members are
permitted to consider “[a]ny evidence properly introduced on the
merits before findings.” R.C.M. 1001(f)(2). Here, setting
aside the erroneously admitted testimony, the members heard of a
contentious relationship between a junior Marine and her
superiors. It is not clear why the relationship became
contentious, but at a certain point, the appellant decided that
her command was “picking on her” and began to refuse to follow
orders. Her conspicuous disobedience to her SSgt, repeated
refusals to wear the appropriate uniform, and flagrant
disrespect of a commissioned officer were all exacerbated by her
own presentencing testimony, where the appellant continued to
blame her command for her actions and left the members with
absolutely no indication of her willingness or potential for
further service. 31 That, coupled with SSgt Alexander and SgtMaj
Shaw’s testimony of the adverse influence the appellant’s
divisive actions had on other junior members of the command,
leads us to conclude that the erroneously admitted evidence did
not substantially influence the adjudged sentence.
                                BCD Striker

     Although not raised by the parties, we note the trial
defense counsel essentially argued for a punitive discharge. 32
It is well-settled that when defense counsel advocates for a
punitive discharge, “counsel must make a record that such
advocacy is pursuant to the accused’s wishes.” United States v.
Pineda, 54 M.J. 298, 301 (C.A.A.F. 2001) (internal quotation
marks and citations omitted).


30
  The trial counsel argued for a sentence of reduction to E-1, ninety days
confinement, and a bad-conduct discharge. Record at 415.
31
  During the sentencing hearing, the appellant testified her command was
“tired of me going to the IG . . . and writing letters to Congress, and
request mast and, you know . . . submitting pictures of the barracks[.]”   Id.
at 410.
32
  Trial defense counsel’s sentencing argument included the following
comments: “As you go through and deliberate upon what punishment would be
appropriate, I would just ask you . . . to make it quick. [LCpl] Sterling,
as she has said, is recently married. And she has also said, she is not long
for the Marine Corps one way or the other. And so whatever punishment you
give her, I would ask that it be a punishment that quickly brings [LCpl]
Sterling’s association with her command and the Marine Corps to an end. LCpl
Sterling is no longer in a position that she can be an asset to her unit . .
. [t]aking that into account, we would ask that whatever punishment you
assign ... quickly allow[s] both the Marine Corps ... [and LCpl] Sterling,
herself, to move on to a place where both sides can prosper.” Id. at 418-19.
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     Here, the record is silent in this regard. However,
failure to adequately make a record of the appellant’s wishes
“does not per se, require an appellate court to set aside a
court-martial sentence.” Id. Instead, we must assess the
impact of the error on the approved sentence to determine
whether sufficient prejudice existed, for “where the facts of a
given case compel a conclusion that a bad-conduct discharge was
reasonably likely, we do not normally order a new sentence
hearing.” Id. (citation omitted).
     The appellant’s misconduct was not minor. As the Supreme
Court has recognized, “to accomplish its mission the military
must foster instinctive obedience, unity, commitment, and esprit
de corps.” Goldman v. Weinberger, 475 U.S. 503, 507 (1986). The
members and convening authority were presented with an appellant
who brazenly scoffed at this requirement in a manner that
adversely impacted the good order and discipline of this unit.
Lacking evidence of rehabilitative potential, we find this
record amply supports the reasonable likelihood that a bad-
conduct discharge would have been awarded and approved
notwithstanding this error.
                         Conclusion

     The findings and the sentence as approved by the convening
authority are affirmed.
     Senior Judge FISCHER and Judge MCDONALD concur.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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