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

                             No. 201700308
                         _________________________

                  UNITED STATES OF AMERICA
                                  Appellee
                                      v.
                 KEARA GONZALEZ STARKS
       Master-at-Arms Seaman Apprentice (E-2), U.S. Navy
                                Appellant
                         _________________________
 Appeal from the United States Navy-Marine Corps Trial Judiciary

   Military Judges: Commander William H. Weiland, JAGC, USN.
  Convening Authority: Commandant, Naval District Washington,
                    Washington Navy Yard, D.C.
   Staff Judge Advocate’s Recommendation: Commander James A.
                         Link, JAGC, USN.
   For Appellant: Commander Robert D. Evans, Jr., JAGC, USN.
  For Appellee: Major Kelli A. O’Neil, USMC; Lieutenant Kimberly
                         Rios, JAGC, USN.
                      _________________________

                          Decided 26 June 2018
                         _________________________

  Before HUTCHISON, FULTON, and SAYEGH, 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:
   At a general court-martial, a military judge convicted the appellant,
pursuant to her pleas, of two specifications of sexual abuse of a child and one
specification of obstructing justice, in violation of Articles 120b and 134,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920b and 934. The
military judge sentenced the appellant to four months’ confinement,
              United States v. Gonzalez Starks, No. 201700308


reduction to E-1, and a bad-conduct discharge (BCD). The convening
authority approved the sentence as adjudged, and except for that part of the
sentence extending to the BCD, ordered the sentence executed.
   The appellant raises four assignments of error (AOEs): (1) the military
judge considered uncharged misconduct during presentencing; (2) the
appellant was subjected to unlawful post-trial punishment; (3) a sentence
that includes a BCD is inappropriately severe; and (4) this court should order
the return of the appellant’s seized property.1
    Having carefully considered the record of trial and the parties’
submissions, we conclude the findings and sentence are correct in law and
fact and find no error materially prejudicial to the appellant’s substantial
rights. Arts. 59(a) and 66(c), UCMJ.
                                 I. BACKGROUND
    In May 2015, the appellant was in a rollover vehicle accident. She
suffered severe injuries to her body, head, and face, as well as a traumatic
brain injury (TBI). At the time of her accident, the appellant was married to
SS. Soon thereafter, SS decided to end her relationship with the appellant. To
ease her own guilt, SS encouraged the appellant to form an intimate
relationship with SS’s 14-year old niece, FO, who lived in Puerto Rico.
   In December 2015, FO flew to Maryland to visit SS and the appellant.
During this visit, the appellant kissed FO on three separate occasions. After
FO returned to Puerto Rico, the appellant exchanged sexually explicit text
messages with her. In January and March of 2016, the appellant traveled to
Puerto Rico where she again kissed FO. In March 2016, while still in Puerto
Rico, the appellant was confronted by FO’s grandfather who warned the
appellant he was going to call the police and report her for stalking FO.
Concerned that FO’s family would see their text messages, the appellant told
FO to delete all their text messages from her phone.
   We will address the remaining relevant facts in the discussion.
                                 II. DISCUSSION
A. Uncharged misconduct
   The appellant asserts that her presentencing hearing was prejudiced by
the military judge’s consideration of two forms of uncharged misconduct.
First, the appellant admitted during the providence inquiry that she violated


   1  We have considered but summarily reject AOE 4 raised pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). United States v. Clifton, 35 M.J. 79,
81-82 (C.M.A. 1992).



                                         2
                    United States v. Gonzalez Starks, No. 201700308


a military protective order (MPO) and attempted to persuade FO to recant
her statements and not cooperate with investigators. Second, after Dr. SB, a
forensic psychologist and clinical neuropsychologist, testified during the
defense presentencing case about the extent of the appellant’s injuries, he
revealed on cross-examination that the appellant admitted that at the time of
her rollover accident she was speeding and driving drunk.
    When a military judge admits aggravation evidence 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)). In the absence of a defense objection, we review claims
of erroneous admission of evidence for plain error. United States v. Hardison,
64 M.J. 279, 281 (C.A.A.F. 2007). Under a plain error analysis, the accused
has the burden of demonstrating that: (1) there was error; (2) the error was
plain or obvious; and (3) the error materially prejudiced a substantial right of
the appellant. United States v. Payne, 73 M.J. 19, 23-24 (C.A.A.F. 2014)
(citing United States v. Tunstall, 72 M.J. 191, 193-94 (C.A.A.F. 2013)).
   1. Providence inquiry
    The appellant pleaded guilty to one specification of obstructing justice for
communicating to FO “an instruction to delete messages between them.”2
During the providence inquiry related to this charge, the military judge
questioned the appellant about why she thought she was guilty of this
offense. In response, the appellant first admitted, “I was telling [FO] to use a
password when we talked[.]”3 After a short colloquy on that admission, the
military judge again asked, “What else did you do to obstruct justice?” The
appellant replied, “I told [FO] to leave the iPad at her friend’s house[.]”4 This
admission was followed with another short colloquy in which the military
judge asked the appellant a third time, “What else did you do?” The appellant
admitted, “I asked [FO] to delete the messages.”5 When asked when she told
FO to delete their text messages, the appellant volunteered:
         After the investigation started, I was issued an MPO. And
         sometime in May, [FO] called me from a different phone
         number and I picked up the phone; and even though I knew it
         was her, I still stayed on the phone.6

   2   Charge Sheet.
   3   Record at 60.
   4   Id. at 64.
   5   Id. at 65.
   6   Id. at 67.



                                          3
                    United States v. Gonzalez Starks, No. 201700308


The military judge immediately attempted to redirect the inquiry back to the
appellant’s request of FO to delete their text messages. “When you picked up
the phone in May of 2016 even though there was an MPO, did you tell her to
delete evidence?”7 A few questions later, the military judge again attempted
to move away from the MPO. “That would be an orders violation. How is
talking to her in violation of your MPO obstructing justice?”8 In response to
this question, the appellant conceded that she violated the MPO to talk to FO
in the hopes of convincing FO to not testify against her.
   No further discussion occurred on the record regarding the MPO or the
appellant’s attempts to influence FO’s involvement in the case. After finding
the appellant guilty pursuant to her pleas, the military judge asked the trial
defense counsel (TDC) if they had any objections to consideration of the
providence inquiry during sentencing. The TDC stated, “No objection.”9
    The government argues that the TDC’s “[n]o objection” constitutes an
affirmative waiver barring the appellant from raising any appeals based on
the military judge’s consideration of the providence inquiry.10 However, we
need not decide whether the issue was waived when, as in this case, we do
not find plain error.
    Sometimes even proper questions during a providence inquiry lead to the
disclosure of uncharged misconduct. With regard to the specification for
obstructing justice, the questions were relevant and directly related to the
facts underlying the appellant’s belief that there was or could be a criminal
proceeding related to her relationship with FO. Such a belief is a required
element of the charged offense under Article 134, UCMJ. Since RULE FOR
COURTS-MARTIAL (R.C.M.) 1001(b)(4), MANUAL FOR COURTS-MARTIAL,
UNITED STATES (2016 ed.), allows as evidence in aggravation any matters
“directly relating to or resulting from the offenses of which the accused has
been found guilty,” we find no error in the military judge’s consideration of
the uncharged misconduct revealed during the providence inquiry.
    Further, the appellant’s voluntary admissions to other acts of obstructing
justice—in violation of an MPO—occurred prior to the charged act and were
part of a continuous course of conduct. “[W]hen uncharged misconduct is part
of a continuous course of conduct involving similar crimes and the same


    7   Id. at 68
    8   Id.
    9   Id. at 92-93.
    10Appellee’s Brief of 17 Apr 2018 at 10 (citing United States v. Swift, 76 M.J. 210,
217 (C.A.A.F. 2017)).



                                           4
                 United States v. Gonzalez Starks, No. 201700308


victims, it is encompassed within the language ‘directly relating to or
resulting from the offenses of which the accused has been found guilty’ under
RCM 1001(b)(4).” United States v. Nourse, 55 M.J. 229, 232 (C.A.A.F. 2001).
Here the appellant told FO how to use passwords, where to hide her iPad,
and tried to persuade FO to not testify against her. These were all acts of
obstructing justice intended to impede the same investigation and provided
context to her eventual request of FO to delete their text messages.
   2. Cross examination of Dr. SB
    During presentencing, the appellant called Dr. SB, a forensic psychologist
and clinical neuropsychologist, to testify about his evaluations of the
appellant after her car accident. On direct examination, Dr. SB testified
about the appellant’s TBI, severe depression, and lack of any predatory
behavior toward minors. Based on his assessment, the appellant’s TBI would
cause her to suffer from impulsivity or disinhibitions that affected her ability
to react as she normally would to stimuli.11
   The assistant trial counsel then cross-examined Dr. SB:
            Q. Now when you interviewed [the appellant,] you asked
         her about the cause of her injuries because that would be
         important for you to understand, right?
             A. Yes.
             Q. And she told you that it was a motor vehicle accident?
             A. Yes.
             Q. Did she tell it was a drunk driving accident?
             A. Yes.
             Q. And that she was the drunk driver?
             A. Yes.
            Q. And that she lost control and flipped her vehicle because
         she was speeding?
             A. Yes.12
   The TDC did not object. The appellant now contends that the military
judge improperly considered this testimony that was “calculated to present




   11   Record at 122.
   12   Id. at 129-30.



                                         5
                 United States v. Gonzalez Starks, No. 201700308


evidence of other crimes” and “paint the [appellant] as a bad person.”13 We
disagree.
    “The defense must assume responsibility not only for specific evidence it
introduces but also for the reasonable inferences that may be drawn from
such evidence.” United States v. Outin, 42 M.J. 603, 608 (N-M. Ct. Crim. App.
1995) (citations omitted). R.C.M. 1001(d) permits the prosecution to rebut
mitigation evidence that gives rise to certain reasonable inferences. United
States v. Oenning, 20 M.J. 935, 936 (N.M.C.M.R. 1985). It was reasonable to
infer that Dr. SB’s testimony regarding the appellant’s TBI was being offered
as a matter in extenuation that “served to explain the circumstances
surrounding the commission of [her] offense[s.]” R.C.M. 1001(c)(1)(A).
Further, Dr. SB agreed that the cause of the appellant’s injuries was
important to his diagnosis of her. Therefore, even assuming the military
judge, in fashioning an appropriate sentence, did consider evidence that the
appellant was driving while intoxicated, the appellant has not demonstrated
error, let alone plain or obvious error.
B. Post-trial conditions of confinement
    The appellant was sentenced to confinement for four months. The
appellant alleges that the Naval Consolidated Brig in Chesapeake,
Virginia restricted her from eating in the galley with the general
population, “in an effort to protect her from ridicule by other
prisoners.” 14 The appellant argues that eating in isolation is a form of
disciplinary segregation and, therefore, the brig staff illegally increased
the severity of the conditions of her post-trial confinement.
    This court reviews allegations of post-trial violations of the Eighth
Amendment and Article 55, UCMJ, de novo. United States v. White, 54 M.J.
469, 471 (C.A.A.F. 2001). In evaluating both constitutional and statutory
allegations of cruel or unusual punishment, we apply the Supreme Court’s
Eighth Amendment jurisprudence “in the absence of legislative intent to
create greater protections in the UCMJ.” United States v. Lovett, 63 M.J. 211,
215 (C.A.A.F. 2006) (citation omitted). The Eighth Amendment forbids
punishment that is “‘incompatible with the evolving standards of decency
that mark the progress of a maturing society, or which involve the
unnecessary and wanton infliction of pain.’” Id. at 214 (quoting Estelle v.
Gamble, 429 U.S. 97, 102-03 (1976)). However, before a prisoner may petition
an appellate court with a claim of cruel and unusual punishment in
confinement, he or she must first seek administrative relief. United States v.

   13   Appellant’s Brief of 18 Dec 2017 at 18.
   14   Clemency letter of 15 Sep 2017 at 2.



                                               6
                 United States v. Gonzalez Starks, No. 201700308


Coffey, 38 M.J. 290, 291 (C.M.A. 1993). An appellant must show, “absent
some unusual or egregious circumstance, that [s]he has exhausted the
prisoner grievance system of the [confinement facility] and that [s]he has
petitioned for relief under Article 138, UCMJ, 10 USC § 938.” Id.; see also
Lovett, 63 M.J. at 211.
    “[T]he exhaustion requirement in Coffey [sic] is intended to ensure that
an adequate record has been developed with respect to the procedures for
considering a prisoner grievance and applicable standards.” United States v.
Miller, 46 M.J. 248, 250 (C.A.A.F. 1997). The record regarding cruel and
unusual punishment in this case consists only of what the TDC submitted in
a post-trial clemency letter. Neither the clemency letter nor the appellant’s
brief contains additional evidence that the appellant ever invoked the
prisoner grievance system in the facilities in which she was confined. There is
no evidence that she submitted an Article 138, UCMJ, complaint or that
circumstances prevented her from doing so. The record contains no other
evidence or findings of fact from the military judge that the brig facility
leadership was aware of the appellant’s complaints or was indifferent to
them. We are therefore unable to make any findings regarding the
mishandling of grievance procedures, any failures to balance institutional
and individual needs, or whether any conditions amounted to cruel and
unusual punishment. Id.
    The appellant’s complaint falls short of the standard required for
intervention by this court.
C. Sentence appropriateness
   Although she concedes that she “committed serious crimes” the appellant
argues a BCD is inappropriately severe.15 We disagree.
   We review sentence appropriateness de novo. United States v. Lane, 64
M.J. 1, 2 (C.A.A.F. 2006). “Sentence appropriateness involves the judicial
function of assuring that justice is done and that the accused gets the
punishment [s]he deserves.” United States v. Healy, 26 M.J. 394, 395 (C.M.A.
1988). This requires our “individualized consideration of the particular
accused on the basis of the nature and seriousness of the offense and the
character of the offender.” United States v. Snelling, 14 M.J. 267, 268 (C.M.A.
1982) (citation and internal quotation marks omitted). In making this
assessment, we analyze the record as a whole. Healy, 26 M.J. at 395. Despite
our significant discretion in determining sentence appropriateness, we must
remain mindful that we may not engage in acts of clemency. United States v.
Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).

   15   Appellant’s Brief at 24.



                                       7
                 United States v. Gonzalez Starks, No. 201700308


    The appellant pleaded guilty to committing lewd acts upon a 14-year-old
girl and then impeding the investigation into her own misconduct. This was
not a case of an isolated incident. The appellant kissed FO and sent her lewd
text messages on divers occasions over a three-month period. The kissing
involved open-mouthed “French kissing.”16 The texting included messages
with sexually explicit language from the appellant to FO.17 She also admitted
to multiple methods in which she intentionally tried to hide the relationship
from both FO’s family and criminal investigators through passwords and the
deletion of text messages.
    The appellant presented matters in extenuation that related, in
significant part, to the injuries she suffered in her roll-over accident. At the
time of her trial, she was only three months into a year-long series of
reconstructive surgeries to repair her head, face, and arm. She also presented
evidence that she was suffering from TBI that left her with diminished
impulse control. The appellant had no prior predisposition to engage in child-
sex offenses, and her risk for future offenses was considered “quite low.”18 She
also presented compelling testimony that her spouse encouraged her to form
an intimate relationship with FO. However, she committed multiple lewd
acts with a 14-year-old victim that carried a maximum punishment of 40
years’ confinement and a dishonorable discharge. Balancing the seriousness
of her misconduct against the evidence of her injuries and other extenuating
and mitigating circumstances, a BCD is appropriate.
    Having given individualized consideration to the nature and seriousness
of these crimes, the appellant’s record of four years of service, and all matters
contained in the record of trial, to include the victim’s impact statement,19 we
conclude the sentence is not inappropriately severe and is appropriate for this
offender and her offenses. United States v. Baier, 60 M.J. 382, 384-85
(C.A.A.F. 2005); Healy, 26 M.J. at 395-96; Snelling, 14 M.J. at 268. Granting
sentence relief at this point would be to engage in clemency, which we decline
to do. Healy, 26 M.J. at 395-96.




   16   Record at 30.
   17   Id. at 49.
   18   Id.at 125.
   19   Id. at 96.


                                       8
         United States v. Gonzalez Starks, No. 201700308


                          III. CONCLUSION
The findings and sentence are affirmed.
   Senior Judge HUTCHISON and Judge FULTON concur.
                                  For the Court




                                  R.H. TROIDL
                                  Clerk of Court




                                  9
