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

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

                      UNITED STATES OF AMERICA

                                     v.

                      CHRISTOPHER L. OLCOTT
                  SERGEANT (E-5), U.S. MARINE CORPS

                           NMCCA 201300228
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 31 January 2013.
Military Judge: LtCol Eugene Robinson, USMC.
Convening Authority: Commanding General, 1st Marine
Aircraft Wing, Okinawa, Japan.
Staff Judge Advocate's Recommendation: Capt J.A. Sautter,
USMC.
For Appellant: Maj John Stephens, USMC; LT David
Dziengowski, JAGC, USN.
For Appellee: Maj David Roberts, USMC; LCDR Keith Lofland,
JAGC, USN.

                            30 October 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.

WARD, Senior Judge:

     A military judge sitting as a general court-martial
convicted the appellant, pursuant to his pleas, of one
specification of an indecent act and one specification of
burglary, in violation of Articles 120 and 129, Uniform Code of
Military Justice, 10 U.S.C. §§ 920 and 929. A panel of officer
and enlisted members then convicted the appellant, contrary to
his plea, of one specification of aggravated sexual assault, in
violation of Article 120, UCMJ, 10 U.S.C. § 920. The members
sentenced the appellant to eight years’ confinement, reduction
to the grade of E-1, forfeiture of all pay and allowances, and a
bad-conduct discharge. The convening authority approved the
sentence as adjudged and, except for the bad-conduct discharge,
ordered the sentence executed.

     On appeal, the appellant raises multiple assignments of
error.1 After carefully considering the record of trial and the
submissions of the parties, we are convinced 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

     On 4 March 2012, the appellant was standing watch as the
Duty Noncommissioned Officer (DNCO) at Barracks 460 on board
Marine Corps Air Station Futenma, Okinawa, Japan. Around 0100,
the appellant witnessed the intoxicated victim, Lance Corporal
(LCpl) PM, enter the barracks and stumble past him to her room
with the aid of her friend, Corporal (Cpl) DR. At first, LCpl

1
  (1) That the Commandant of the Marine Corps’s (CMC) Heritage Brief and the
Marine Corps Sexual Assault Prevention and Response Program (SAPR) training
created the appearance of unlawful command influence, and the military
judge’s remedies were insufficient to provide the appellant with a fair
trial;

(2) That the guilty finding for aggravated sexual assault is legally and
factually insufficient;

(3) That the military judge erred by improperly admitting evidence of the
appellant’s prior sexual misconduct;

(4) That the military judge erred by denying the appellant’s motion for an
expert consultant in the field of forensic toxicology;

(5) That the appellant’s burglary plea was improvident;

(6) That the appellant’s trial defense counsel were ineffective by failing to
call witnesses during sentencing; and

(7) That the appellant’s sentence is inappropriately severe.

Assignments of error numbered (3) through (7) are raised pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We have reviewed these
assignments of error and find them without merit. United States v. Clifton,
35 M.J. 79 (C.M.A. 1992).
                                      2
PM did not want to go to her room, instead insisting that Cpl DR
call LCpl PM’s boyfriend, Cpl CR. A short while later, Cpl CR
came to the barracks to help LCpl PM to her room. However,
since LCpl PM earlier lost her keycard, she “wobbled” outside
and climbed through the window of her room and unlocked the
door. Record at 617. Cpl CR then assisted LCpl PM to bed,
helping her disrobe because, in his words at trial, “she was so
intoxicated . . . that she really couldn’t do it herself.” Id.
at 618. After giving her a bottle of water and instructing her
to lock the door behind him, he left her lying on her bed clad
in a bra and panties.

     In the duty hut a few doors down from LCpl PM’s room sat
the appellant and his two assistant DNCO’s (ADNCO). Several
hours after Cpl CR left LCpl PM’s barracks room, the appellant
left the duty hut to go up to his barracks room for a rest
break. Approximately 30 minutes later, he returned to the duty
hut minus his camouflage utility uniform and duty belt, instead
wearing a green skivvy shirt, athletic shorts and running shoes.
He asked one of the ADNCO’s for help in trying to change the
settings on his iPhone, specifically to “silence the shutter
sound.” Id. at 681. The appellant then left the duty hut.


     Rather than returning to his room, the appellant instead
entered LCpl PM’s unlocked room and approached her bed where she
now lay naked and asleep.2 For approximately 20 minutes, he
stood over her taking a series of digital photographs of her
naked body with his iPhone. These pictures ranged from images
of LCpl PM’s entire naked body to close up images of her vagina
and anus. Prosecution Exhibits 3-11.

     LCpl PM awoke groggy and confused to a dark outline of a
person hovering over her bed. At first, she assumed it was her
boyfriend, Cpl CR, who put her to bed earlier that evening.
Record at 693-94. Moments later she heard a male voice
mentioning getting back in time for duty changeover. Confused
at first, she then realized the identity of the person as the
appellant. A short time later, she began frantically texting
and calling Cpl CR. Id. at 695-99.

     At trial, the appellant admitted to unlawfully entering
LCpl PM’s barracks room and seeing her either unconscious or
asleep. Id. at 855; PE 19 at 1-2. He testified that after he
2
  The appellant admitted during his testimony that another Marine in the smoke
pit outside the barracks told him that LCpl PM was naked in her room. Id. at
855-56.
                                      3
started taking photographs with his iPhone, LCpl PM stirred
awake, looked up at him, and then “reached out and [] grabbed
[his] penis through [his] shorts . . . [and said] put it in me.”
Record at 863-64. He further testified that he then engaged in
consensual intercourse with LCpl PM for approximately 30 minutes
before leaving her room.

                     Legal and Factual Sufficiency

     In his second assignment of error, the appellant asserts
that the guilty finding for aggravated sexual assault is both
legally and factually insufficient. Specifically, he argues
that LCpl PM consented to intercourse and she is untrustworthy
as evidenced by character testimony at trial. Appellant’s Brief
of 9 Dec 2013 at 34-35. We disagree.

     We review questions of legal and factual sufficiency de
novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002). We review the legal sufficiency of the evidence by
determining “whether, considering the evidence in the light most
favorable to the prosecution, any reasonable fact-finder could
have found all the essential elements beyond a reasonable
doubt.” United States v. Day, 66 M.J. 172, 173-74 (C.A.A.F.
2008) (citing United States v. Turner, 25 M.J. 324, 324 (C.M.A.
1987)). The test for factual sufficiency is whether “after
weighing all the evidence in the record of trial, this court is
convinced of the accused’s guilt beyond a reasonable doubt.”
United States v. Rankin, 63 M.J. 552, 557 (N.M.Ct.Crim.App.
2006) (citation omitted), aff’d, 64 M.J. 348 (C.A.A.F. 2007).

     We are not persuaded by the appellant’s claim that LCpl PM
consented to sexual intercourse when she awoke to him hovering
over her bed with his iPhone at the ready. LCpl PM testified
that she was sleeping and awoke to an unknown person on top of
her. During his testimony, the appellant conceded that he knew
LCpl PM was intoxicated when she passed by the duty hut,3 that
she was asleep when he entered her room, and that she remained
asleep while he took photographs with his iPhone. Although LCpl
PM was apparently able to climb through her barracks window
earlier, ample testimony from witnesses, including one of the
ADNCO’s in the duty hut, described her as highly intoxicated.

     At trial the appellant admitted that he entered her room
fully intending to take pictures of her naked body. Forensic
3
  Cpl DR who escorted LCpl PM to her room testified that when they passed by
the duty hut the appellant looked over and playfully asked “is she drunk” and
laughed. Record at 642-43.
                                      4
evidence revealed that he stood over her taking various pictures
for approximately 21 minutes, during which time he conceded he
became sexually aroused. Record at 898-99; 901. He also
conceded to having had no prior relationship or contact with
LCpl PM.

     After carefully reviewing the record of trial and
considering the evidence in the light most favorable to the
prosecution, we are convinced that a reasonable fact-finder
could have found all the essential elements beyond a reasonable
doubt. Furthermore, after weighing all the evidence in the
record and having made allowances for not having personally
viewed the witnesses, we are convinced beyond a reasonable doubt
of the appellant’s guilt.

                       Unlawful Command Influence

     In his first assignment of error, the appellant argues that
apparent unlawful command influence (UCI) flowing from the
Commandant of the Marine Corps’ (CMC) Heritage Brief4 and the
Marine Corps’ Sexual Assault Prevention and Response (SAPR)
program training infected his trial. Furthermore, he contends
that the curative measures adopted by the military judge failed
to ameliorate any taint of apparent UCI.5

     Prior to trial, the appellant through counsel moved to
dismiss all charges and specifications on grounds that the
Heritage Brief and the SAPR program created both actual and
apparent UCI in his case. Appellate Exhibit XVII at 54-62;
Record at 137-64. The defense motion cited concerns of unlawful
influence on potential members, and a chilling effect upon
potential defense witnesses and the convening authority. During
the motion session, however, the civilian defense counsel
principally narrowed the defense focus to unlawful influence on
potential court-martial members. Record at 162-63.6

4
  For a more full description of the Heritage Brief, see United States v.
Howell, No. 201200264, 2014 CCA LEXIS 321, unpublished op. (N.M.Ct.Crim.App.
22 May 2014).
5
  Appellant’s Brief at 30-32. We review allegations of UCI not only for
actual UCI, but also for the appearance of UCI. United States v. Lewis, 63
M.J. 405, 415 (C.A.A.F. 2006) (citing United States v. Rosser, 6 M.J. 267,
271 (C.M.A. 1979)).
6
  See also AE XVII at 36-43. At trial, the defense focused on essentially two
putative messages flowing from the Heritage Brief: one, that sexual assault
allegations are true in the vast majority of cases (“80% statistic”) and two,
that an overall lack of accountability for misconduct in the Marine Corps can
                                      5
     After reviewing the materials offered, the military judge
initially deferred ruling on the defense motion until completion
of voir dire “to assess the extent of the impact, if any, of the
[CMC’s] heritage brief on the potential members for this case.”
Id. at 164. Prior to calling the members, the military judge
ruled that the defense met the low threshold of bringing forth
some evidence of apparent UCI, and that the Government had met
its burden of demonstrating beyond a reasonable doubt that “any
such UCI has not affected the proceedings thus far.” AE XXVII
at 11.

     The military judge then ordered a number of remedial
measures to remove the taint of any apparent UCI at trial,
including supplemental member questionnaires, two additional
defense peremptory challenges, an initial panel of at least 16
members, extensive voir dire, liberally granting defense
challenges, and instructing the panel on CMC White Letter 3-12
along with any additional preliminary or final instructions to
the members on the issue of the Heritage Brief. Id. at 12.7

     Despite these measures, the appellant now argues, apparent
unlawful influence stemming from the Heritage Brief and the SAPR
program, primarily from the topics of credibility of sexual
assault victims and accountability of offenders, tainted the
appellant’s trial. He takes issue with the timing of the
military judge’s ruling, the military judge’s failure to revisit
his ruling following voir dire, and the military judge’s failure
to address the impact of the SAPR program in his ruling despite
the defense citing it as an independent basis for UCI in their
motion. Appellant’s Brief at 31. He then posits that a


only be remedied by more severe punishment (“kick them out”). AE XVII at 27-
32. On appeal, the appellant limits his argument to influence on members at
trial. Furthermore, he takes no issue with the military judge’s finding of
no actual UCI, instead only addressing apparent UCI. Appellant’s Brief at
23-32. We agree and similarly find no evidence of actual UCI from the
matters raised by the appellant. For purposes of our review, we assume
arguendo that the appellant sufficiently raised the issue of apparent UCI at
trial.
7
  The appellant concedes that the military judge implemented these curative
measures at trial with the exception of instructing the panel on White Letter
3-12. Appellant’s Brief at 31. The military judge decided not to instruct
the members on White Letter 3-12 at the request of civilian defense counsel,
who articulated an apparent concern that doing so would only “inject[] the
issue of [the CMC’s] authority into the deliberation room.” Record at 160-
63. We find this argument curious, considering that the defense premised its
UCI argument in part on the CMC’s remarks on the subject of sexual assault in
his earlier White Letter 2-12. For more on the content of White Letters 2-12
and 3-12, see Howell, 2014 CCA LEXIS 321 at *9-11.
                                      6
“disinterested observer, learning of the military judge’s myopic
ruling, and considering the problematic responses of the members
during individual voir dire, would harbor a significant doubt as
to the fairness of [the appellant’s] court-martial.” Id. at 31-
32. We disagree.

     The defense shoulders the initial burden of raising the
issue of UCI, whether at trial or on appeal. When raising UCI
at the trial level, the defense is required to present “some
evidence” of UCI. That is, the defense must “show facts which,
if true, constitute unlawful command influence, and that the
alleged unlawful command influence has a logical connection to
the court-martial, in terms of its potential to cause unfairness
in the proceedings.” United States v. Biagase, 50 M.J. 143, 150
(C.A.A.F. 1999) (citations omitted). On appeal, the appellant
bears the initial burden of showing: (1) facts that, if true,
constitute UCI; (2) that the proceedings were unfair; and (3)
that the UCI was the cause of the unfairness. United States v.
Salyer, 72 M.J. 414, 423 (C.A.A.F. 2013) (citing United States
v. Richter, 51 M.J. 213, 224 (C.A.A.F. 1999)) (additional
citation omitted). “Thus, the initial burden of showing
potential unlawful command influence is low, but is more than
mere allegation or speculation.” Id. (citing United States v.
Stoneman, 57 M.J. 35, 41 (C.A.A.F. 2002).

     Once the appellant makes this initial showing, whether at
trial or on appeal, the burden shifts to the Government. To
meet this burden, the Government must prove beyond a reasonable
doubt: (1) that the predicate facts do not exist; or (2) that
the facts do not constitute UCI; or (3) that the UCI will not
prejudice the proceedings or did not affect the findings and
sentence. Biagase, 50 M.J. at 151. “[O]nce unlawful command
influence is raised at the trial level . . . a presumption of
prejudice is created.” United States v. Douglas, 68 M.J. 349,
354 (C.A.A.F. 2010) (citing Biagase, 50 M.J. at 150). “To
affirm in such a situation, we must be convinced beyond a
reasonable doubt that the unlawful command influence had no
prejudicial impact on the court-martial.” Id. (citing Biagase,
50 M.J. at 150-51).

     The test for the appearance of UCI is objective. “We focus
upon the perception of fairness in the military justice system
as viewed through the eyes of a reasonable member of the
public.” United States v. Lewis, 63 M.J. 405, 415 (C.A.A.F.
2006). An appearance of UCI arises “where an objective,
disinterested observer, fully informed of all the facts and
circumstances, would harbor a significant doubt about the

                                7
fairness of the proceeding.” Id. Consequently, to affirm the
findings and sentence in this case, we must be convinced beyond
a reasonable doubt on a de novo review that any appearance of
UCI had no prejudicial impact in this case.8

     After reviewing the entire record, to include the members’
questionnaires and supplemental questionnaires, the voir dire,
challenges and excusals, and the evidence admitted at trial, we
conclude beyond a reasonable doubt that any appearance of
unlawful influence was sufficiently ameliorated.

     During voir dire, the subjects of the Heritage Brief, SAPR
training, and related topics of credibility of sexual assault
complaints, false reporting, consent and lack of consent due to
alcohol intoxication were thoroughly explored with each member.
Voir dire, challenges, and excusals lasted over a full day in
court and span nearly 360 pages of transcript. Members
acknowledged that they would keep an open mind and follow the
military judge’s instructions, despite any contrary message they
may have heard during SAPR training or anecdotally on the
subject of false reporting and the impact of alcohol on consent.
Record at 295, 298, 346-47, 349, 360, 370, 385-86, 399, 416,
519-20, 524, 550, 572-575, 578-80.

     Of the total twelve challenges for cause lodged by the
defense, the military judge granted eight, and the defense
removed three more challenged members through use of its
peremptory challenges. Of the twelve defense challenges for
cause, civilian defense counsel cited concerns of unlawful
influence from the Heritage Brief and/or SAPR training for only
three members; LtCol BB, LtCol SK, and MSgt VJ. Record at 446-
53.9 The military judge denied the defense challenges against

8
  Citing Salyer, 72 M.J. at 423, the appellant argues that we review his claim
of apparent UCI de novo. Appellant’s Brief at 22. The Government agrees
that we review claims of UCI de novo, but points out that we review a
military judge’s remedies for an abuse of discretion. Government Brief of 10
Mar 2014 at 13 (citing Douglas, 68 M.J. at 354). Douglas seemingly requires
that we review the military judge’s remedies here for an abuse of discretion.
68 M.J. at 354 (“We grant a military judge broad discretion in crafting a
remedy to remove the taint of unlawful command influence, and we will not
reverse ‘so long as the decision remains within that range.’”) (quoting
United States v. Gore, 60 M.J. 178, 187 (C.A.A.F. 2004)). However, in
Salyer, a case involving remedial measures adopted by a replacement military
judge, the majority reviewed the question of UCI de novo, a fact highlighted
by the dissent. See Salyer, 72 M.J. at 429-31 (Ryan, J., dissenting). Under
either standard of review, our decision remains the same.
9
  The remainder of the defense challenges relied on implied bias mostly from
the members’ reluctance when asked if they could consider a sentence of no
                                      8
LtCol BB and LtCol SK, on both accounts finding beyond a
reasonable doubt that any appearance of UCI stemming from the
Heritage Brief and/or any SAPR training had been removed by
their answers during voir dire. After the military judge
granted the challenge against MSgt VJ, id. at 447-52, the
defense used two of its three peremptory challenges to remove
LtCol BB and LtCol SK from the panel, id. at 591.

     Of the twelve members challenged by the defense, only one,
SSgt MA, remained on the panel after the defense exhausted its
challenges. Civilian defense counsel argued that SSgt MA
displayed an implied bias due to his responses on alcohol
intoxication and consent. Id. at 589-90. We agree with the
military judge’s finding that SSgt MA’s responses, taken as a
whole, revealed openness to considering all facts and
circumstances before deciding whether alcohol intoxication
deprived one of the ability to consent to sexual activity. Id.
at 590.

     Contrary to the appellant’s argument, we find that the
curative measures adopted by the military judge sufficiently
remedied any appearance of unlawful influence. We conclude
beyond a reasonable doubt that a disinterested observer, armed
with all the facts and circumstances reflected in the record,
would not harbor a significant doubt as to the fairness of the
proceedings. Lewis, 63 M.J. at 415.

                                Conclusion

     The findings and the sentence as approved by the convening




punishment or no confinement if sentencing the appellant for all three
offenses before the court-martial. Id. at 280 (LtCol JM-granted due to
personal knowledge of the case); 301-04 (Col HJ-granted due to family member
victim of similar crime); 452 (Maj JF—granted due to serving as a uniformed
victim advocate); 453-54 (GySgt AR, SSgts JA and GM—all three granted due
inelastic attitude on sentence); 540 (GySgt DM-granted due to personal
knowledge of the case). The military judge denied a defense challenge for
cause against SSgt MS based on actual and implied bias resulting from his
responses indicating an inelastic attitude on sentence. However, the defense
used its final peremptory challenge to remove him from the panel. Id. at
590-91.
                                     9
authority are affirmed.
   Senior Judge FISCHER and Judge KING concur.
                              For the Court



                              R.H. TROIDL
                              Clerk of Court




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