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

                                  Before
                   R.Q. WARD, J.A. FISCHER, D.C. KING
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                       EDWARD J. WILSON, JR.
                  CORPORAL (E-4), U.S. MARINE CORPS

                            NMCCA 201300315
                        SPECIAL COURT-MARTIAL


Sentence Adjudged: 11 April 2013.
Military Judge: Maj Nicholas Martz, USMC.
Convening Authority: Commanding Officer, Combat Logistics
Regiment 27, 2d Marine Logistics Group, Camp Lejeune, NC.
Staff Judge Advocate's Recommendation: Capt A.L. Evans,
USMC.
For Appellant: LCDR Shannon Llenza, JAGC, USN.
For Appellee: Maj David N. Roberts, UMSC; Capt Matthew
Harris, USMC.

                            28 August 2014

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                     OPINION OF THE COURT
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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 military judge sitting as a special court-martial
convicted the appellant, contrary to his pleas, of one
specification of wrongful sexual contact, in violation of
Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920.1
The military judge sentenced the appellant to confinement for
ninety days, reduction to pay grade E-1, and a bad conduct
discharge. The convening authority approved the sentence as
adjudged.

     The appellant raises the following five assignments of
error (AOEs): (1) that the appellant’s conviction was factually
and legally insufficient; (2) that the military judge abused his
discretion by not recusing himself from the proceedings; (3)
that the court-martial was unfair due to unlawful command
influence; (4) that the military judge abused his discretion in
permitting the Government to introduce improper rebuttal
evidence in presentencing; and, (5) that the findings and
sentence should be set aside due to cumulative error.

     After careful consideration of the parties’ pleadings and
the record of trial, we are convinced that the findings and
sentence are correct in law and fact, and that no error
materially prejudicial to the substantial rights of the
appellant occurred. Arts. 59(a) and 66(c), UCMJ.

                                Background

     On 4 February 2012, Lance Corporal (LCpl) AV and her
boyfriend planned to spend the evening watching movies in her
barracks room aboard Camp Lejuene, NC. The appellant and
several other Marines were socializing and watching an Ultimate
Fighting Championship (UFC) pay-per-view event in a room a few
doors away from LCpl AV’s room. LCpl AV and her boyfriend
joined the other Marines watching the UFC matches and also spent
time socializing and drinking alcohol in the barracks and
smoking cigarettes on the catwalk outside the barracks. LCpl
AV’s boyfriend consumed a considerable amount of alcohol and
passed out in her room. At one point after her boyfriend had
passed out, LCpl AV and the appellant were alone outside
smoking. They were acquainted from work and their prior social
interactions had solely been in a group setting. At trial, LCpl
AV testified that the appellant asked her to help him square
away another Marine’s barracks room because it had been left in
disarray and the door was ajar. LCpl AV testified that she
agreed to help and after she entered the room the appellant
grabbed her around the waist, spun her around, unzipped her
pajamas and put his hand on her breast. LCpl AV testified she
1
  The military judge acquitted the appellant of specifications of aggravated
sexual contact, abusive sexual contact, and rape. All charges arose from the
same incident.
                                     2
shoved the appellant as hard as she could and yelled at him to
“Get the f*** off me” and ran out of the room. Shortly
thereafter LCpl AV reported to the barracks duty noncommissioned
officer that the appellant assaulted her.

     The trial defense team argued reasonable doubt based upon
the following: (1) LCpl AV’s lack of credibility due to her
level of intoxication at the time of the incident and the
general implausibility of her account; (2) LCpl AV’s several
conflicting statements to various people regarding the details
of the incident; and (3) the deficient investigation conducted
by Naval Criminal Investigative Service (NCIS) agents who failed
to collect available physical evidence that could have been
forensically examined.

                           Discussion

Legal and Factual Sufficiency

     In accordance with Article 66(c), UCMJ, this court reviews
issues of legal and factual sufficiency de novo. United States
v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The test for
legal sufficiency is “whether, considering the evidence in the
light most favorable to the prosecution, a reasonable factfinder
could have found all the essential elements beyond a reasonable
doubt.” United States v. Dobson, 63 M.J. 1, 21 (C.A.A.F. 2006)
(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). When
testing for legal sufficiency, this court must draw every
reasonable inference from the record in favor of the
prosecution. United States v. McGinty, 38 M.J. 131, 132 (C.M.A.
1993); United States v. Blocker, 32 M.J. 281, 284 (C.M.A. 1991).

     The test for factual sufficiency “is whether, after
weighing the evidence in the record of trial and making
allowances for not having personally observed the witnesses, the
members of [this court] are themselves convinced of the
accused’s guilt beyond a reasonable doubt.” United States v.
Turner, 25 M.J. 324, 325 (C.M.A. 1987)

     The elements of wrongful sexual contact applicable here
are: (1) that on or about 5 February 2012 at or near Camp
Lejeune, NC, the accused engaged in sexual contact, to wit:
touching LCpl AV’s breast with his hand; (2) that such sexual
contact was without LCpl AV’s permission; and (3) that such
sexual contact was wrongful. “Without permission” means without
consent and “consent” is defined as words or overt acts
indicating a freely given agreement to the sexual conduct by a

                                3
competent person. “Wrongful” means without legal justification
or lawful authorization. “Sexual contact” is the intentional
touching, either directly or through the clothing, of the
genitalia, anus, groin, breast, inner thigh, or buttocks of
another person, with an intent to abuse, humiliate, or degrade
any person or to arouse or gratify the sexual desire of any
person.

     LCpl AV’s testimony clearly established that the appellant
intentionally touched her breast; that she did not consent to
his actions; and that she pushed him away as soon as she was
able. While LCpl AV was intoxicated at the time, the evidence
indicated she was well-aware of her surroundings and fully able
to recall the incident. Moreover, she reported the appellant’s
actions nearly immediately and witnesses testified that she was
clearly emotionally upset. After reviewing the record, we find
that a rational trier of fact could have found that the
essential elements of wrongful sexual contact were met, and we
are ourselves convinced beyond a reasonable doubt as to the
appellant’s guilt.

Military Judge’s Impartiality

     At trial, the military judge stated that he knew the
alleged victim, LCpl AV, in a professional capacity because she
had been his court-reporter “for maybe a handful of sessions.”
Record at 73. In response to voir dire questions from trial
counsel and defense counsel, the military judge also indicated
that he had attended a work place baby shower held jointly for
LCpl AV and another Marine. Additionally, the military judge
confirmed that he knew three witnesses, Corporal (Cpl) L, Cpl S
and Major K, and that he considered Major K a friend.2 The
military judge stated that nothing regarding his experiences
with any of the witnesses would impact his ability to sit as an
impartial fact finder in the case. Id. at 76. Following voir
dire and after consulting with the appellant, the defense
counsel elected not to challenge the military judge. Id. The
appellant now argues that the military judge had a sua sponte
duty to recuse himself because his familiarity with LCpl AV and
the other witnesses called into question his impartiality.

      A military judge must disqualify himself in a proceeding
when his impartiality “might reasonably be questioned.” RULE FOR
COURTS-MARTIAL 902(a), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012

2
  The appellant, LCpl AV, and several of the witnesses worked in Marine legal
offices. Cpl L, Cpl S and Maj K were called as witnesses by the defense.
                                      4
ed.). “‘[W]hen a military judge's impartiality is challenged on
appeal, the test is whether, taken as a whole in the context of
this trial, a court-martial's legality, fairness, and
impartiality were put into doubt’ by the military judge's
actions.” United States v. Martinez, 70 M.J. 154, 157 (C.A.A.F.
2011) (quoting United States v. Burton, 52 M.J. 223, 226
(C.A.A.F. 2000)). “The appearance of impartiality is reviewed
on appeal objectively and is tested under the standard set forth
in United States v. Kincheloe, i.e., ‘[a]ny conduct that would
lead a reasonable man knowing all the circumstances to the
conclusion that the judge’s impartiality might reasonably be
questioned is a basis for the judge’s disqualification.’”
Martinez, 70 M.J. at 158 (quoting United States v. Kincheloe, 14
M.J. 40, 50 (C.M.A. 1982)). While an appellant has a
constitutional right to an impartial judge, “[t]here is a strong
presumption that a [military] judge is impartial, and a party
seeking to demonstrate bias must overcome a high hurdle,
particularly when the alleged bias involves actions taken in
conjunction with judicial proceedings.” United States v.
Quintanilla, 56 M.J. 37, 44 (C.A.A.F. 2001).

     Because the appellant did not object at trial, we review
the issue of impartiality for plain error. Martinez, 70 M.J. at
157. Plain error occurs when: (1) there is error, (2) the error
is plain or obvious, and (3) the error results in material
prejudice. United States v. Hardison, 64 M.J. 279, 281
(C.A.A.F. 2007). In this instance, we find the military judge
did not commit plain error in failing to sua sponte recuse
himself simply because he knew several of the defense witnesses
and had some limited professional interaction with the victim.

Unlawful Command Influence

     The appellant also avers that the appellant’s court martial
was infected with apparent unlawful command influence (UCI) due
to a series of lectures delivered by the Commandant of the
Marine Corps that came to be known as the “Heritage Brief”. We
review allegations of UCI de novo. United States v. Villareal,
52 M.J. 27, 30 (C.A.A.F. 1999). Article 37(a), UCMJ, states,
“No person subject to this chapter may attempt to coerce or, by
any unauthorized means, influence a court-martial or any other
military tribunal or any member thereof in reaching the findings
or sentence in any case . . . .” The appellant has the initial
burden of producing sufficient evidence to raise unlawful
command influence. United States v. Stombaugh, 40 M.J. 208, 213
(C.M.A. 1994). This threshold is low, but it must be more than


                                5
“a bare allegation or mere speculation.” United States v.
Johnston, 39 M.J. 242, 244 (C.M.A. 1994) (citation omitted).

     At trial, the defense moved to dismiss the charges based on
UCI flowing from the Heritage Brief. The military judge
presiding at the UCI motion hearing denied the defense request
to dismiss and decided that a supplemental member questionnaire
and extensive voir dire would be adequate to ensure the fairness
of the appellant’s court-martial. The appellant eventually
elected to be tried by military judge alone, made no further
allegation of UCI once he elected forum, and did not voir dire
or challenge the military judge on this matter.

     The record before us is devoid of facts that, if true,
constitute UCI. Moreover, we find no indication whatsoever that
the proceedings were unfair. Stombaugh, 40 M.J. at 213. The
appellant has failed to meet his initial burden of production
and therefore we decline to grant relief.

                  Remaining Assignment of Error

     Having carefully reviewed the record and the pleadings, we
find the appellant’s remaining AOEs to be without merit. United
States v. Clifton, 35 M.J. 79, 81-82 (C.M.A. 1992).

                           Conclusion

     The findings and the sentence as approved by the convening
authority are affirmed.




                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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