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

                                 Before
                F.D. MITCHELL, J.A. FISCHER, D.C. KING
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                       MICHAEL I. WOODYE
              STAFF SERGEANT (E-6), U.S. MARINE CORPS

                           NMCCA 201400336
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 22 May 2014.
Military Judge: CDR J.A. Maksym, JAGC, USN.
Convening Authority: Commanding General, III Marine
Expeditionary Force, Okinawa, Japan.
Staff Judge Advocate's Recommendation: LtCol K.J. Estes,
USMC.
For Appellant: Capt David Peters, USMC.
For Appellee: LT Amy Freyermuth, JAGC, USN; LT Ann Dingle,
JAGC, USN.

                            27 August 2015

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                     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 general court-martial, consisting of members with
enlisted representation, convicted the appellant, contrary to
his pleas, of fraternization and non-forcible sodomy in
violation of Articles 92 and 125, Uniform Code of Military
Justice, 10 U.S.C. §§ 892 and 925. The members sentenced the
appellant to be reduced to pay grade E-1 and a bad-conduct
discharge.   The convening authority approved the sentenced as
adjudged.

     The appellant raises one assignment of error: that the
military judge abused his discretion when he denied a defense
motion to dismiss the non-forcible sodomy conviction for failure
to state an offense. After careful consideration of the record
of trial and the parties’ pleadings, 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. Arts. 59(a) and 66(c), UCMJ.

                            Background

     In June of 2013, Lance Corporal (LCpl) ML and his wife, BD,
reported to Okinawa, Japan where the appellant was assigned as
their sponsor. As such, the appellant drove LCpl ML and his
wife to on-base appointments and other events designed for new
arrivals. On 5 July 2013, after helping the couple run errands,
the appellant drove them to the package store where LCpl ML and
BD purchased a fifth of vodka and beer. The appellant then
drove the couple back to their on-base hotel. When they
arrived, the appellant asked if he could stay and socialize with
them and the three proceeded to drink in their hotel room.

     After the drinking began, LCpl ML stepped outside to smoke
a cigarette. BD testified that once her husband left the room,
the appellant approached her, pulled her shorts and underwear to
the side, and licked her vagina. BD stated that, when LCpl ML
returned to the room, she did not inform him of what had
happened.

     BD testified that later, when LCpl ML went outside for a
second cigarette, the appellant returned to where she was
sitting, again pulled her shorts and underwear to the side, and
licked and digitally penetrated her vagina. BD testified that
when her husband returned, she told him that she needed to show
him something in the bedroom. She then informed him of what had
happened and told him not to say anything about it to the
appellant. She testified that they returned to the living area
where the appellant was sitting.

     At some point thereafter, BD went into the bedroom and got
into bed. BD testified that when LCpl ML went outside to smoke
another cigarette, the appellant entered the bedroom, removed
her shorts and underwear, and proceeded to lick and digitally
penetrate her vagina. She testified that the appellant then

                                 2
pulled down his pants, inserted his penis into her vagina
momentarily, and then returned to the living room. BD claimed
that she had been awake the entire time that the appellant
performed these acts, but she did not move or respond. LCpl ML
then returned to the hotel room, unaware of what had just
happened.

     BD testified that when LCpl ML left again to smoke yet
another cigarette, she went with him and informed him of what
had happened in the bedroom. They returned to the hotel room
and did not confront the appellant about the incident. A few
hours later, the appellant brought LCpl ML and BD to his
residence for pizza with his family and other members of the
unit.

     Eventually, BD reported her allegations to the authorities,
resulting in the appellant being charged with fraternization,
rape, sexual assault, aggravated sexual contact, and adultery,
in violation of Articles 92, 120, and 134, UCMJ. Two months
later, prior to the Article 32, UCMJ, hearing, the Government
preferred an additional charge alleging non-forcible sodomy, in
violation of Article 125, UCMJ. 1 That specification read as
follows: “that “Staff Sergeant Michael I. Woodye, U.S. Marine
Corps, while on active duty, did, at or near Okinawa, Japan, on
or about 5 July 2013, commit sodomy with Mrs. [BD].”

     During a pretrial motion session, the appellant moved to
dismiss the non-forcible sodomy (hereinafter “sodomy”)
specification. While acknowledging that sodomy was an offense
under Article 125 at the time the specification was preferred,
the appellant argued that sodomy had been repealed by statute at
the time of the appellant’s trial. Therefore, “[g]iven that the
act of consensual sodomy was no longer illegal under the UCMJ,
[the sodomy charge] should be dismissed in the interests of
justice and fairness.” 2 During argument on this motion, the
appellant’s defense counsel reiterated that “with the new NDAA
that just came out, our basis of our motion is that the Article
125 should be dismissed because of pure justice and fairness
sir.” 3 The Government countered that the repeal of a statute is


1
   On 26 December 2013, the President signed into law the National Defense
Authorization Act for Fiscal Year 2014, amending Article 125 to cover only
forcible sodomy and bestiality.
2
    Appellate Exhibit X at 4.
3
    Record at 80.


                                      3
not retroactive unless specifically provided for by Congress.
The military judge denied the defense motion to dismiss.

     At the close of the Government’s case, defense counsel
moved to dismiss all charges pursuant to RULE FOR COURTS-MARTIAL
917, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). As a result,
the military judge dismissed two of the three specifications
under Article 120, but declined to dismiss the sodomy charge
after the Government argued that “the act of sodomy compiled
[sic] with the prejudice to good order and discipline proves the
act of sodomy.” 4 The appellant was thereafter convicted solely
of fraternization and sodomy in violation of Articles 92 and
125, UCMJ.

     On appeal, the appellant argues that the military judge
abused his discretion when he denied his pretrial motion to
dismiss the sodomy specification for failure to state an
offense. Further, the appellant argues that, since he “raised
this issue” at trial, this court’s analysis is limited to
“whether the specification’s plain language stated a valid
offense for non-forcible sodomy under Article 125, UCMJ.” 5

     The Government counters that the appellant’s objection at
trial was “not on grounds of failure to allege the Marcum
factors or lack of notice, as Appellant claims now on appeal. .
. . Rather . . . [‘]in the interests of justice and fairness[’]
dismissal was required because [‘]consensual sodomy [was] no
longer illegal under the UCMJ.[’]” 6 Accordingly, the Government
claims that the appellant “forfeited review on appeal absent
plain error.” 7

     In light of the parties positions and the competing
standards of review, we must first determine whether the
appellant properly preserved the issue at trial.


4
  Id. at 732. The third specification under Article 120 was withdrawn by the
convening authority. Id. at 741-42.
5
  Appellant’s 23 March 2015 Reply to the Government’s Brief at 3 (citing
United States v. Fosler, 70 M.J. 225, 230 (C.A.A.F. 2011) (“in contested
cases, when the charge and specification are first challenged at trial, we
read the wording more narrowly and will only adopt interpretations that hew
closely to the plain text” (additional citation omitted)).
6
    Government’s Brief of 2 March 2015 at 9 (citation omitted).
7
    Id. at 10 (citation omitted).


                                        4
                                    Discussion

1. Was the Issue Properly Preserved?

     In its pretrial motion entitled “Motion to Dismiss,” the
defense set forth the following: that the appellant was accused
of committing sodomy; that Lawrence v. Texas 8 “invalidat[ed] laws
that criminalized certain sexual acts between consenting
adults[;]” that Marcum 9 established exceptions to the Lawrence
holding in the military environment, including when sodomy was
“contrary to good order and discipline[;]” and that the “113th
Congress . . . repealed the offense of consensual sodomy under
Article 125[.]” 10 The defense argued that, although the repeal
of sodomy as a crime under Article 125 “did not become law until
President Obama signed it on 26 December 2013, the intent of
Congress to reinstate the constitutional rights given to service
members in Lawrence began on 3 January 2013 when NDAA FY14 was
enacted.” 11 Therefore, the defense maintained that the sodomy
specification should be dismissed “in the interests of justice
and fairness” since “this violation is no longer illegal under
the UCMJ.” 12
     “A motion shall state the grounds upon which it is made and
shall set forth the ruling or relief sought. The substance of a
motion, not its form or designation, shall control.” R.C.M.
905(a). While the defense motion was designated as a motion to
dismiss, the justification for the motion was certainly not
failure to state an offense, as the appellant now claims. Nor
was this a “fundamental issue” that was “squarely before the
military judge[.]”   United States v. Marshall, 67 M.J. 418, 420
(C.A.A.F. 2009) (issue preserved when the appellant placed the
“fundamental issue” before the trial court.). Instead, the
motion--and the defense counsel’s oral argument on the motion--
focused solely on the “fairness” of charging the appellant with
sodomy since Article 125 had been modified to decriminalize such
conduct. Accordingly, we find the appellant failed to raise at
trial the issue for which he now seeks appellate review.


8
     539 U.S. 558 (2003).
9
     United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004)
10
     AE X at 3.
11
     Id. at 3-4.
12
     Id. at 4.


                                         5
2.   Plain Error Analysis

     Having determined that the appellant has raised this issue
for the first time on appeal, we turn now to the appropriate
standard for review. When a defective specification is raised
for the first time on appeal, the issue is forfeited in the
absence of plain error. United States v. Humphries, 71 M.J.
209, 213 (C.A.A.F. 2012); see also United States v. Tunstall, 72
M.J. 191, 197 (C.A.A.F. 2013) (noting that when an appellant
fails to object to specification at trial for its failure to
state an offense, an appellate court reviews the claim on appeal
for plain error). To establish plain error, the appellant has
the burden to demonstrate: (1) there was error; (2) the error
was plain or obvious; and (3) the error materially prejudiced a
substantial right of the accused. See United States v. Girouard
70 M.J. 5, 11 (C.A.A.F. 2011).


     We begin our analysis by noting that, in Marcum, the Court
of Appeals for the Armed Forces (CAAF) rejected a facial
challenge to Article 125 in the wake of Lawrence. Reasoning
that “an understanding of military culture and mission cautions
against sweeping constitutional pronouncements that may not
account for the nuance of military life[,]” Marcum, 60 M.J. at
206, the CAAF adopted a tripartite framework to determine
whether Article 125, UCMJ, is constitutional as applied to the
facts of a given case: First, was the conduct that the accused
was found guilty of committing of a nature to bring it within
the liberty interest identified by the Supreme Court? Second,
did the conduct encompass any behavior or factors identified by
the Supreme Court as outside the analysis in Lawrence? “For
instance, did the conduct involve minors? Did it involve public
conduct or prostitution? Did it involve persons who might be
injured or coerced or who are situated in relationships where
consent might not easily be refused?” Id. at 207 (citation
omitted). Finally, are there additional factors relevant solely
in the military environment that affect the nature and reach of
the Lawrence liberty interest? Id.


     Recently, in United States v. Bass, __ M.J. __
(N.M.Ct.Crim.App. 18 Aug 2015), this court held that these
“Marcum factors” must be pleaded in a specification. We adhere
to that precedent today and hold that the specification was
defective. Since Bass was the law at the time of appeal, we
also find the error was plain. See United States v. Harcrow, 66
M.J. 154, 159 (C.A.A.F. 2008) (court considers “whether the


                                6
error is obvious at the time of appeal, not whether it was
obvious at the time of the court-martial.”)

     However, a defective specification is “not subject to
automatic dismissal, even though it affects constitutional
rights. . . . Rather, this Court tests for prejudice.” United
States v. Wilkins, 71 M.J. 410, 413 (C.A.A.F. 2012) (citations
omitted).   To determine whether there is prejudice, “we look to
the record to determine whether notice of the missing element is
somewhere extant in the trial record, or whether the element is
‘essentially uncontroverted.’” Humphries, 71 M.J. at 215-16
(quoting United States v. Cotton, 535 U.S. 625, 633 (2002)). If
either is the case, the charging error is considered cured and
material prejudice is not demonstrated. Id. at 217. In this
case, we find several indicators in the record to persuade us
that the appellant was not prejudiced by the omitted Marcum
factor.

     First, prior to pretrial motions, the appellant received a
copy of a memo from the prosecution to the appellant’s
commanding officer. In that memo, the Government explained
that:

        A consensual sodomy charge is not prohibited post
        don’t ask don’t tell and Lawrence so long as there is
        a military nexus to the charge. Recently in U.S. v.
        Castellano, the [C.A.A.F.] affirmed consensual sodomy
        charges are proper where Marcum factors are present.
        In this case, the act of a Staff Sergeant performing
        oral sex on the wife of a Lance Corporal in his shop
        is most definitely prejudicial to good order and
        discipline and would qualify as a Marcum factor. 13

     Second, in its response to the appellant’s motion to
dismiss, the Government conveyed its theory of criminality
regarding the sodomy specification, arguing that the appellant’s
conduct amounted to a criminal act because:

        The accused was both a sponsor and a Staff Non
        Commissioned Officer in the same chain of command as
        Mrs. B.D.’s husband, and under these circumstances she
        is a person who might be coerced or might be situated
        in a relationship where consent might not easily be
        refused.

13
     AE X at 32.


                                   7
        . . . .

             Distinguished from Marcum and Castellano, where
        both the accused and the victim were in the armed
        forces, this case involves the spouse of a member of
        the armed forces. This is actually another Marcum
        factor because of the well-established Article 134
        charge of adultery. In this case where both the
        Accused and the alleged victim are in the same chain
        of command and there is such a disparity in their
        ranks it would meet the criteria of prejudicial to
        good order and discipline. 14

Similar comments from the prosecution have been held to
ameliorate any prejudice from insufficient notice. See United
States v. Liboro, 10 F.3d 861, 864 (D.C. Cir. 1993) (finding
harmless the district court’s failure to provide the required
notice under Federal Rule of Criminal Procedure 11 when the
appellant “was sufficiently apprised of the charges and
comprehended them” as a result of the prosecution's statements
during the plea proceeding).

     Third, the Government argued at the pretrial Article 39(a)
hearing at which the defense motion to dismiss was litigated
that:

        What this is an issue of is an actual Marcum – a
        factor outlined in Marcum, such as a situation where,
        specifically, persons who might be coerced or in
        relationships not – that they could not easily refuse.
        The situation here is not a matter of taking away a
        person’s consensual liberty rights. The issue here is
        a sponsor of one of the only people who the victim –
        alleged victim at the time knew, who was a staff NCO
        compared to her lance corporal husband, have relations
        with her. In that context, as outlined in Marcum and
        affirmed in Castellano, the military has a reason for
        still prosecuting this . . . . It goes towards good
        order and discipline and other military necessities. 15

     Fourth, during its opening statements, the trial counsel
stated:


14
     AE VII at 2 (internal citation omitted).
15
     Record at 81.


                                         8
        The third charge alleges sodomy; and that’s for Staff
        Sergeant Woodye performing oral sex on [BD] under
        circumstances which were prejudicial to good order and
        discipline because he was the sponsor—he was the staff
        NCO of her husband and in the circumstances that it
        happened where consent could not be easily refused. 16

     Fifth, the Government provided testimony that LCpl ML was
reluctant to confront the appellant due to his rank and position
in the unit. 17

     Moreover, the trial counsel’s closing argument reiterated
the Government’s position:

             There’s another factor that you’re allowed to
        consider. And that’s the factor that when there are
        circumstances which exist which makes it difficult or
        hard for someone to provide consent . . . situations
        where consent cannot be easily refused. Staff
        Sergeant Woodye was the sponsor; [BD] was the
        sponsoree. She’s dependent on Staff Sergeant Woodye.
        That is a situation where consent cannot be easily
        refused. That factor also applies in this case.

             And then there’s a third factor that you can
        consider. And in this factor, the evidence is very
        strong on. That is the factor that says it is a crime
        when the circumstances implicate a unique military
        interest, things like prejudice to good order and
        discipline. In evaluating this factor . . . [y]ou’re
        allowed to consider the fact that Staff Sergeant
        Woodye was, himself, married; that he is a staff NCO.
        You get to consider the fact that [BD] was the
        dependent; she’s a dependent. And that Lance Corporal
        L and [BD] were the sponsorees of Staff Sergeant
        Woodye . . . [a]nd you can consider that Lance
        Corporal L found out that the sodomy occurred. Bottom
        line, the law does not permit a staff NCO in the
        Marine Corps to perform oral sex on a dependent wife
        in temporary lodging while the lance corporal from his
        own unit is out of the room. . . .



16
     Id. at 510.
17
     Id. at 718-19.


                                   9
             The crime of sodomy, just like the crime of
        adultery, is prejudicial to good order and discipline
        for a lot of the same reasons. 18

     The Government explained that “[w]hat makes [sodomy] a
crime is the presence of other factors; factors such as
prejudice to good order and discipline.” 19 The Government
referred to the fact that the appellant engaged in sexual acts
with “the wife of his own lance corporal from his own platoon,
the wife of [a] lance corporal that he is supposed to sponsor on
the island; [a lance corporal] he[is] supposed to be taking care
of . . .” and that the crime of sodomy is “prejudicial to good
order and discipline.” 20

     The trial counsel also presented a third Marcum factor
which he argued could be used to establish that the sodomy was
unlawful:

        Is it possible that someone else could of witnessed
        this? And what the law says here is that, “Performing
        oral sex in public would be a crime.” The UCMJ says
        that, “Performing oral sex under circumstances where
        there is a substantial risk that the acts could be
        witnessed by someone else, even if they are not
        discovered, makes that a crime.” And that factor is
        satisfied here. It’s proven beyond a reasonable doubt
        because the sex occurred at the Shogun Inn in the
        living room and the bedroom while Lance Corporal [L]
        was out of the room. There was a substantial risk –
        he was only gone for 6 to 8 minutes – that he was
        going to come back in and see what happened. And you
        heard in the stipulation of testimony that he did, in
        fact, come back, and he did see something fishy. He
        saw his staff NCO getting up from the crotch area of
        his wife. That factor is satisfied. 21

     Although raised for the first time in the Government’s
closing argument, we nonetheless conclude that notice of this
Marcum factor was also “extant” in the record of trial. The

18
     Id. at 763-64.
19
     Id. at 762.
20
     Id. at 761.
21
     Id. at 762-63.


                                  10
Government offered essentially uncontroverted evidence of the
“substantial risk that the acts could be witnessed by someone
else.” 22 Specifically, both LCpl ML and BD testified that LCpl
ML was outside the room and could have walked into the hotel
room at any time. Moreover, the diagrams and pictures of the
hotel room demonstrate that the entrance to the room had a
direct line of sight to the living room and the couch, where the
sodomy took place.

     That the defense clearly understood that the Government
would be required to satisfy Marcum is also well-demonstrated in
the record. In his motion to dismiss, the appellant
acknowledged that acts of sodomy could only be criminal if the
Government could demonstrate a Marcum factor, 23 noting further
that, under Marcum, “consensual sodomy was punishable if it was
contrary to good order and discipline.” 24 See United States v.
Carr, 303 F.3d 539, 544 (4th Cir. 2002) (finding pretrial brief
filed by defense counsel clearly showed notice of element
missing from indictment). Additionally, in his motion for a
finding of not guilty under R.C.M. 917, the appellant
unsuccessfully argued that the Government failed to present any
witnesses or evidence that demonstrated that the sodomy
committed was prejudicial to good order and discipline. 25

     Moreover, during cross-examination of BD, the defense
counsel attempted to establish that BD stayed in the hotel with
the appellant throughout the appellant’s advances, that her
husband was accessible to her during the time frame in question,
that she went out with the appellant immediately after the
sodomy, and that she continued to accept rides from him in the
following days—all in a seeming effort to, at least in part,
dispute the allegation that “consent could not be easily
refused.” Finally, in closing arguments, the defense counsel
argued that the Government had failed to offer sufficient



22
  The military judge properly instructed the members that one of the Marcum
factors was “public behavior,” and that such behavior includes an act that
“occurs under circumstances in which there’s a substantial risk that the acts
would be witnessed by someone else, despite the fact that no such discovery
occurs.” Record at 781-82.
23
     AE X at 3.
24
     Id.
25
     Record at 721.


                                     11
evidence that the sodomy was prejudicial to good order and
discipline. 26

                            Conclusion

     Considering these factors in toto, we are convinced that
the record sufficiently establishes that the appellant was not
prejudiced by the specification’s omission of any Marcum
factors. The findings and the sentence as approved by the
convening authority are affirmed.

                                       For the Court



                                       R.H. TROIDL
                                       Clerk of Court




26
  While we recognize the language contained in Humphries, 71 M.J. at 217
that the appellant’s assertions during closing argument challenging the
omitted element were insufficient to persuade that court that the appellant
was not prejudiced by the omitted element, we find such a factor relevant
here, especially in light of the other evidence of notice previously
discussed. See Tunstall, 72 M.J. at 197 n.8.
                                     12
