   United States Navy-Marine Corps
       Court of Criminal Appeals
                     _________________________

                       UNITED STATES
                           Appellee

                                 v.

                  Ramano T.A. RICKS
 Aviation Boatswain’s Mate (Equipment) Airman Recruit (E-1),
                         U.S. Navy
                         Appellant

                         No. 201700309

 Appeal from the United States Navy-Marine Corps Trial Judiciary.
                       Decided: 16 April 2019.
                         Military Judge:
               Captain Ann K. Minami, JAGC, USN.
Sentence adjudged 19 July 2017 by a special court-martial convened
at Naval Base Kitsap, Washington, consisting of a military judge sit-
ting alone. Sentence approved by convening authority: confinement for
five months, and a bad-conduct discharge.
                         For Appellant:
          Lieutenant Commander Jon Taylor, JAGC, USN;
                Captain Thomas R. Fricton, USMC.
                           For Appellee:
             Lieutenant Allyson L. Breech, JAGC, USN;
                  Captain Sean M. Monks, USMC.
                     _________________________

     This opinion does not serve as binding precedent, but
      may be cited as persuasive authority under NMCCA
               Rule of Appellate Procedure 30.2.
                     _________________________

           Before HUTCHISON, TANG, and LAWRENCE,
                    Appellate Military Judges.
                     United States v. Ricks, No. 201700309


   Judge LAWRENCE delivered the opinion of the Court, in which
   Senior Judge HUTCHISON and Judge TANG joined.

LAWRENCE, Judge:
    A military judge sitting as a special court-martial convicted the appellant,
contrary to his pleas, of one specification each of desertion, resisting appre-
hension, fleeing apprehension, wrongful introduction of a controlled sub-
stance onto a military installation, and two specifications of wrongful posses-
sion of a controlled substance in violation of Articles 85, 95, and 112a, Uni-
form Code of Military Justice (UCMJ), 10 U.S.C. §§ 885, 886, 912a (2016). 1
    The appellant asserts three assignments of error (AOEs): (1) the appel-
lant’s actions were insufficient to support his conviction for resisting appre-
hension; (2) the evidence did not support the appellant’s intention to remain
away from his unit permanently, an element necessary to sustain his deser-
tion conviction; and (3) the military judge erred in finding the appellant
guilty of two separate specifications for possessing and introducing the same
marijuana at the same time. Concerning the first two AOEs, we find no prej-
udicial error. We find plain error in the third AOE, set aside the lesser-
included offense of possession of a controlled substance, and reassess the
sentence.

                            I. BACKGROUND

    The appellant and his friend, a civilian contractor with base access, en-
tered the gate at Naval Base Kitsap before 0600 on 18 April 2017, a weekday
morning. The appellant was riding in the front passenger seat. They present-
ed their identification cards to the gate guard who was conducting gate vehi-
cle and occupant identification inspections. The gate guard smelled marijua-
na in the vehicle. Seeing a base police patrol vehicle approaching the gate,
the gate guard directed the civilian contractor to pull his vehicle into the
nearby inspection lane, and he informed the newly-arrived patrol officers that
he had smelled marijuana coming from the vehicle. The patrol officers took
over further investigation.




   1 The appellant pleaded guilty to a violation of Article 86, UCMJ, unauthorized
absence for a two-day period, as a lesser-included offense of desertion. The military
judge found the appellant guilty of the greater offense of desertion.




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                        United States v. Ricks, No. 201700309


    As Officer M approached the stopped vehicle, he too noted a “strong odor
of marijuana coming from the vehicle.” 2 Officer M asked the driver and the
appellant several times if there was marijuana or anything else in the vehi-
cle. Both the civilian contractor and the appellant denied that there was any
contraband in the vehicle. Officer M asked the driver for consent to search
the vehicle, and the driver consented. Officer M asked the driver and the
appellant to get out of and stand behind the vehicle. Officer M then searched
the vehicle while his partner watched over the vehicle, the appellant, and the
driver.
    During the search of the vehicle, Officer M found a green leafy substance,
believed to be marijuana, “all over” the floor and the center console. 3 He also
found rolling papers, a cigarette carton containing the remnants of a mariju-
ana cigarette, and a shotgun shell. Officer M frisked the driver and the appel-
lant. In the appellant’s right front pants pocket, Officer M found a cellophane
bag containing suspected marijuana. The bag bore the label of a Washington
State-licensed cannabis company.
    Officer M told the appellant he was under arrest for possession of mariju-
ana. The circumstances of the appellant’s arrest relate to his first assigned
error and are discussed in detail below. Following processing, Officer M re-
leased the appellant to USS NIMITZ (CVN 68) beach detachment personnel,
as the ship was at sea and the appellant was awaiting administrative separa-
tion related to other matters.
    Three days later, on 21 April 2017, the appellant was ordered to report to
the beach detachment office to review paperwork necessary for his separa-
tion. When he arrived, Senior Chief H, the ranking member of the beach
detachment, showed him a pretrial confinement order signed by the NIMITZ
commanding officer, which ordered the appellant into pre-trial confinement
that day. Senior Chief H told the appellant that Petty Officer W would escort
him to his barracks room so the appellant could pack the required uniform
and personal items, after which point command members would escort him to
the brig. The appellant protested, arguing that there was no proof he pos-
sessed marijuana since Officer M had released him without charges. Senior




   2   Record at 106.
   3   Id. at 107.




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                     United States v. Ricks, No. 201700309


Chief H reassured the appellant that there was no misunderstanding. The
appellant stated, “I’m not going to jail today.” 4
    The appellant asked to make a cell phone call, and Senior Chief H allowed
him to do so. The appellant was still on the phone when he left the beach
detachment office, followed by Petty Officer W. The appellant walked away in
the opposite direction of his barracks and quickly distanced himself from his
escort. Petty Officer W could not keep up with the appellant and lost sight of
him near the Navy Exchange. He called out the appellant’s name but re-
ceived no response. He briefly searched for the appellant in the Navy Ex-
change, but then returned to the beach detachment office and told Senior
Chief H that he believed the appellant had fled. Senior Chief H informed the
brig and the NIMITZ chain of command that the appellant had apparently
fled, and he asked base security to prepare a “be on the lookout” (BOLO)
advisement for the appellant. Then he closed up the office and, as it was a
Friday afternoon, departed for the weekend.
    Four days later, agents of the Naval Criminal Investigative Service
(NCIS), acting upon the BOLO, received additional information that helped
them identify the off-base hotel in the local area where they believed the
appellant was staying. The hotel staff told the agents which room the appel-
lant occupied, and, with the agents nearby, the hotel staff knocked on the
door. When the appellant answered the door, the agents immediately noted
the strong smell of marijuana in the room and took the appellant into custo-
dy.
    The agents conducted additional interviews and suspected that there was
additional marijuana in the appellant’s hotel room. When they returned to
search the room, they found that it had been cleared out. By reviewing the
hotel’s security footage, they determined that one of the appellant’s friends
entered the room after the appellant was taken into custody. The agents
located and questioned this friend, who admitted that he had removed the
appellant’s items, including marijuana, from the room at the appellant’s
request. He said he stored the appellant’s items in his own personal vehicle,
which he permitted the agents to search. The agents recovered a bag of the
appellant’s personal items and two bags of commercially-packaged marijua-
na.




   4   Id. at 149.




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                    United States v. Ricks, No. 201700309


                           II. DISCUSSION

A. Legal and Factual Sufficiency
    In his first two AOEs, the appellant contends that his convictions for re-
sisting apprehension and desertion were legally and factually insufficient. We
review questions of legal and factual sufficiency de novo. Article 66(c), UCMJ;
United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).
    To determine legal sufficiency, we review the evidence “in the light most
favorable to the prosecution” and ask whether “a reasonable factfinder could
have found all the essential elements beyond a reasonable doubt.” United
States v. Turner, 25 M.J. 325 (C.M.A. 1987). In conducting this analysis, we
must “draw every reasonable inference from the evidence of record in favor of
the prosecution.” United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015) (quot-
ing United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001)).
    In testing for factual sufficiency, we “weigh[] the evidence in the record of
trial and mak[e] allowances for not having personally observed the witnesses”
in order to determine whether we, ourselves, are “convinced of the accused’s
guilt beyond a reasonable doubt.” Turner, 25 M.J. at 324. We take a “fresh,
impartial look at the evidence,” without deference to the trial court’s decision,
and must “make [our] own independent determination as to whether the
evidence constitutes proof of each required element beyond a reasonable
doubt.” Washington, 57 M.J. at 399.

   1. Resisting apprehension
    In order to sustain the conviction for resisting apprehension, the govern-
ment must have proven beyond a reasonable doubt that: (1) a certain person
attempted to apprehend the appellant; (2) that person had the authority to
apprehend the appellant; and (3) the appellant actively resisted the appre-
hension. MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.) (MCM),
Part IV, ¶ 19.b.(1). To meet the third element, the government must have
proven “active” resistance. Although the Manual provides one example of
legally sufficient active resistance—specifically, assault upon the apprehend-
ing official—this is only one non-exhaustive example. So long as the re-
sistance amounts to more than “[m]ere words of opposition, argument, or
abuse,” the act constitutes “active resistance.” MCM, Part IV, ¶ 19.c.(1)(c).
    The appellant does not contest the first two elements of the offense. There
is no question that Officer M was employed and on duty as a civilian police
officer for Naval Base Kitsap and that he attempted to apprehend the appel-
lant. The appellant contends that the third element, the accused’s active
resistance to the apprehension, was not sufficiently supported by the evi-
dence.


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                         United States v. Ricks, No. 201700309


    Specifically, the appellant argues that his actions were insufficient to con-
stitute active resistance because he only “pulled away” from the officer “in
order to face the officer and state that the officer could not arrest him without
reading him his rights.” 5 The appellant implicitly argues that this motivation
for “pull[ing] away” from the officer makes his actions more akin to “mere
words” than active resistance. 6 He further argues that the government failed
to prove active resistance because the appellant did not “improperly touch[]”,
threaten, or assault Officer M. 7 We disagree.
    Officer M testified that the appellant was initially compliant and allowed
his right wrist to be secured in the handcuffs. But as he was attempting to
secure the appellant’s left hand, the appellant twice “pull[ed] away,” 8 remov-
ing his left wrist from Officer M’s grasp, turned to face him, and told Officer
M “[H]ell no, you are not doing this.” 9 In order to fully secure the appellant in
his handcuffs, Officer M had to grab the appellant, turn him around, and pin
him against the hood of his patrol car several feet away. During cross-
examination, Officer M conceded that he did not have to escalate beyond
relatively minor use of force techniques in order to restrain the appellant.
    The appellant testified in his own defense. In contrast with Officer M’s
testimony, the appellant stated he was “right in front” of the hood of the
patrol car when Officer M first attempted to handcuff him. He testified that
Officer M was behind him, using his legs to “pin[]” the appellant to the hood
of the car. 10 The appellant repeatedly testified that he never turned to face
Officer M but that he only “looked” at him and “couldn’t turn all the way
around.” 11 The appellant testified he never pulled his hand away from Officer
M but that “when [he] tried to turn around . . . [his] hand may have moved,”
but never in a “forceful manner,” as Officer M described. 12 The appellant
agreed he twice verbally protested his apprehension and that he voluntarily




   5   Appellant’s Brief of 7 Mar 2018 at 7.
   6   Id.
   7   Id.
   8   Record at 111.
   9   Id. at 114.
   10   Id. at 327-29.
   11   Id. at 331.
   12   Id. at 332.




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                      United States v. Ricks, No. 201700309


ceased his minor resistance. 13 The trial defense counsel and the appellant
physically demonstrated the encounter as the appellant described it. Their
demonstration apparently attempted to show that it was impossible for the
appellant to turn around, when “pinned” to the patrol car, and ended with the
trial defense counsel and the appellant being “2 inches apart, face-to-face
with [the trial defense counsel’s] hand remaining on [the appellant’s hand]
and almost in an embrace.” 14
    The appellant and Officer M provided drastically different accounts of the
apprehension. The appellant’s account, should we choose to believe it, is that
his hand only “moved” (not “forcefully”) but never broke contact with Officer
M’s hand and that the appellant merely turned his head to the side while he
was pinned to the patrol car hood.
    However, in light of the conflicting testimony, we credit Officer M’s ac-
count. We find that the appellant was not a credible witness. Although he
made a sworn statement to NCIS after his arrest admitting that he pur-
chased marijuana, during his trial testimony, the appellant denied purchas-
ing marijuana. 15 Rather, he testified that he only admitted to purchasing the
marijuana because he did not want his friends to get in trouble, and he just
“told [NCIS] like what they wanted to hear” because he was frustrated and
confused. 16
    On cross-examination, however, the appellant maintained that he did not
lie to NCIS when he admitted purchasing marijuana. He conceded that he
did purchase marijuana, but did so on a different day than the day about
which he was being questioned. Therefore, during his sworn testimony at
trial, the appellant simultaneously recanted his inculpatory NCIS statement
while also claiming that his recanted NCIS statement was not actually false.
At a minimum, the appellant admitted that he deliberately misled NCIS
agents about the specific time period he knew they were asking about in
order to exculpate his friends. Further, the appellant also testified that Of-
ficer M never recovered a marijuana wrapper from the appellant’s pocket—


   13 See id. at 333 (“The first time I protested he was like, just calm down.
The second time he was like, you don’t want this to . . . escalate . . . so just
calm down. And that’s when I just stopped talking and I let him handcuff me
and put [me] in the back of the car.”).
   14   Id. at 330.
   15   Id. at 350.
   16   Id. at 351.




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                         United States v. Ricks, No. 201700309


only a container of lip balm. We therefore do not find the appellant’s testimo-
ny regarding his apprehension to be credible.
    We reject the appellant’s further argument that Officer M’s restrained use
of force necessarily proves the appellant did not actively resist. The record
does not reveal the height, weight, and build of the appellant. But the gate
guard testified that Officer M was approximately 6’4’’ in height, weighed
approximately 250 pounds, was significantly taller and had a larger build
than the appellant. 17 The height and stature difference rendered extreme
force unnecessary, and officers should use the least force required. We like-
wise reject the appellant’s argument that his movements were not active
resistance since his motivation in moving was to communicate with Officer M
face-to-face. Although the appellant conceded his hands “may have moved,”
based on the appellant’s own description of his actions, they must have
moved. 18
    Having reviewed the entirety of the record and considering the evidence
in the light most favorable to the prosecution, we find that the military judge
could have reasonably found that the appellant physically resisted apprehen-
sion. Additionally, we have weighed the evidence in the record anew, while
making allowances for not having personally observed the witnesses, and are
convinced beyond reasonable doubt of the appellant’s guilt.

   2. Intent to remain away permanently
    The appellant was charged with desertion, terminated by apprehension,
from 21-25 April 2017. He entered a plea of guilty to the lesser-included
offense of a two-day period of unauthorized absence from 24-25 April 2017,
terminated by apprehension, pursuant to Article 86, UCMJ. The government
presented evidence to prove the greater offense of desertion, which required
the additional proof that “at the time the absence began or at some time
during the absence, [the appellant] intended to remain away . . . permanent-
ly.” Art. 85(b)(1)(c), UCMJ. We find that the evidence presented by the gov-
ernment proved beyond a reasonable doubt this element and affirm.
    The intent to remain away permanently may be proved by circumstantial
evidence. United States v. Oliver, 70 M.J. 64, 66 (C.A.A.F. 2011); MCM, Part
IV, ¶ 9.c.(1)(c)(iii). The MCM provides examples of potentially relevant, cir-
cumstantial evidence:


   17   Id. at 101-02.
   18   Id. at 332.




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                    United States v. Ricks, No. 201700309


       [T]hat the period of absence was lengthy; that the accused at-
       tempted to, or did, dispose of uniforms or other military proper-
       ty; that the accused purchased a ticket for a distant point or
       was arrested, apprehended, or surrendered a considerable dis-
       tance from the accused’s station; that the accused could have
       conveniently surrendered to military control but did not; that
       the accused was dissatisfied with the accused’s unit, ship, or
       with military service; that the accused made remarks indicat-
       ing an intention to desert; that the accused was under charges
       or had escaped from confinement at the time of the absence;
       [or] that the accused made preparations indicative of an intent
       not to return (for example, financial arrangements) . . . .
MCM, Part IV, ¶ 9.c.(1)(c)(iii). Additionally, such an intent to remain away
permanently “may be formed any time during the unauthorized absence” and
“need not exist throughout the absence, or for any particular period of time,
as long as it exists at some time during the absence.” MCM, Part IV,
¶ 9.c.(1)(c)(i).
    While this case does not present a long-term absence or great distances
traveled before apprehension, the evidence establishes that the appellant
formed the intent to absent himself and remain permanently away once he
learned he was to be confined pending court-martial.
    The appellant testified that he had no intent to evade Petty Officer W and
that he was merely walking in a direction that would give him better cell
phone reception. However, knowing that he was to be escorted to his barracks
room to retrieve necessary items for pre-trial confinement, the appellant
made no effort to stay within view of Petty Officer W. In fact, he went in the
opposite direction of his barracks. He contends that, upon realizing Petty
Officer W was not with him, he first returned to the beach detachment office
and found it empty. He testified that he then waited at his barracks room,
fully expecting either Petty Officer W or Senior Chief H to retrieve him. The
appellant testified that he intended to return to the NIMITZ later that week
on 28 April 2017 when it came back into port, claiming that he needed to
have a discussion with his commanding officer to explain why the pre-trial
confinement order was in error since there was not sufficient evidence to
prove he possessed the marijuana found on 28 April 2017. For the reasons
described above, we do not find the appellant’s self-serving testimony credi-
ble. Rather, we find ample evidence that the appellant intended to remain
away permanently. On cross examination, the appellant had this exchange
with the trial counsel:
       Q. So even though it was just for a short amount of time, you
       did intend to, to leave and not come back?


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                         United States v. Ricks, No. 201700309


         A. [Pause.] Yes. 19
    We find further evidence of the appellant’s intent to remain away perma-
nently in a phone call he made to his mother while in the NCIS interrogation
room. His end of the conversation was recorded. While awaiting interview on
25 April 2017, the appellant called his mother and said he left the base once
he learned he was going into pre-trial confinement. This directly contradicts
his testimony that he remained in his barracks room that Friday night and
only went to a hotel the following day.
    We also infer his intent to remain away permanently from the fact that he
evaded apprehension after being told he was being ordered into pre-trial
confinement. He told Senior Chief H and Petty Officer W that he wasn’t going
to the “jail” that day. Then he walked away from his escort, Petty Officer W,
and made no attempts to contact any authority from his ship. Further, on
Monday, 24 April 2017, the first working day after learning of the confine-
ment order, he did not report to work. Instead, he did not return to military
custody and control until he was apprehended at the hotel.
    After careful review of the record of trial and considering the evidence in
the light most favorable to the prosecution, we are convinced that the mili-
tary judge could reasonably find that the appellant formed the intent to re-
main away permanently at the initial stages of his absence. Furthermore,
after weighing all the evidence in the record of trial ourselves and having
made allowances for not having personally observed the witnesses, we are
convinced beyond reasonable doubt of the appellant’s guilt.

B. Multiplicity of the Drug Offenses on 18 April 2017
   The appellant contends, and the government concedes, that Charge III,
Specification 1—wrongful possession of controlled substance—is multiplicious
with the greater offense under Charge III, Specification 2—wrongful intro-
duction of a controlled substance. We agree.
    Because this issue was not raised at the contested trial, we review for
plain error. United States v. Oliver, 76 M.J. 271, 273-75 (C.A.A.F. 2017).
Thus, the appellant must establish that the error is “clear or obvious” and
that it “results in material prejudice to his substantial rights.” Id. at 275.
Here, the appellant possessed a single cellophane bag containing marijuana
when he entered onto military property. That one act of possessing and intro-




   19   Record at 364.




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                    United States v. Ricks, No. 201700309


ducing this same bag of marijuana on this same gate entry amounted to a
single offense. See United States v. Hendrickson, 16 M.J. 62 (C.M.A. 1983).
    Therefore, it was plain error to convict the appellant of both possession
and introduction of the same marijuana simultaneous to his single entry to
the base. Accordingly, we set aside the finding of guilty to Charge III, Specifi-
cation 1, and that specification is dismissed with prejudice.

C. Sentence Reassessment
   Having set aside the guilty finding to Charge III, Specification 1, we must
determine if we can reassess the sentence “more expeditiously, more intelli-
gently, and more fairly than a new court-martial.” United States v. Winckel-
mann, 73 M.J. 11, 15 (C.A.A.F. 2013) (internal quotation marks omitted). In
reassessing sentences, we “act with broad discretion.” Id.
    So long as we are able to determine that the sentence imposed on the ac-
cused, absent the error, would have been at least of a certain magnitude and
no higher than he would have received without the error, we may reassess
the sentence. United States v. Harris, 53 M.J. 86, 88 (C.A.A.F. 2000). Any
sentence we seek to affirm must be “appropriate,” meaning it is not only
“purged of prejudicial error [but] also . . . ‘appropriate’ for the offense in-
volved.” United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986).
    We look to the non-exclusive list of five factors in Winckelmann to deter-
mine whether to reassess a sentence or to order a sentencing rehearing:
(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 of-
fenses 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.
    Under all circumstances presented, we find that we can reassess the sen-
tence and it is appropriate for us to do so. There is no change in the penalty
landscape and exposure as the several remaining offenses committed by the
appellant each subjected him to the jurisdictional maximum of the special
court-martial. The appellant was sentenced by a military judge. The remain-
ing offenses capture the gravamen of the criminal conduct for which the
appellant was sentenced, and there is no change in admissible sentencing
evidence. Additionally, we have significant experience and familiarity with
the offenses that remain and conclude that sentence reassessment is appro-
priate. Absent the error, we are confident that the court-martial would have
imposed a sentence no less severe than that approved by the convening au-
thority—five months’ confinement and a bad-conduct discharge. Finally, we


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                   United States v. Ricks, No. 201700309


conclude the reassessed sentence purged the error from the original sentence
and is an appropriate punishment for the modified findings and this offender.
Sales, 22 M.J. at 308.

                         III. CONCLUSION

   The finding of guilty to Charge III, Specification 1 is SET ASIDE and
that specification is DISMISSED WITH PREJUDICE. Thus, after careful
consideration of the record and briefs of appellate counsel, we have deter-
mined that, following our corrective action, the remaining approved findings
and the sentence are correct in law and fact and that no error materially
prejudicial to Appellant’s substantial rights remains. Arts. 59 and 66, UCMJ.
Accordingly, the remaining findings and the sentence as approved by the
convening authority, and as reassessed by this court, are AFFIRMED.

                               FOR THE COURT:




                               RODGER A. DREW, JR.
                               Clerk of Court




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