This opinion is subject to administrative correction before final disposition.




                               Before
                  TANG, LAWRENCE, and STEPHENS
                      Appellate Military Judges

                        _________________________

                          UNITED STATES
                              Appellee

                                     v.

                     Quentez M. PHILLIPS
                 Yeoman Third Class (E-4), U.S. Navy
                            Appellant

                             No. 201900082

                           Decided: 29 May 2020

    Appeal from the United States Navy-Marine Corps Trial Judiciary

                              Military Judge:
                              Ann K. Minami

 Sentence adjudged 20 November 2018 by a special court-martial con-
 vened at Naval Base Kitsap, Bremerton, Washington, consisting of
 officer members. Sentence approved by the convening authority: re-
 duction to E-1, forfeiture of $1,092 per month for two months, con-
 finement for two months, and a bad-conduct discharge.

                             For Appellant:
                   Captain Valonne L. Ehrhardt, USMC

                              For Appellee:
                     Major Clayton L. Wiggins, USMC
                  Lieutenant Kimberly Rios, JAGC, USN

 Judge STEPHENS delivered the opinion of the Court, in which Senior
 Judge TANG and Judge LAWRENCE joined.
                 United States v. Phillips, NMCCA No. 201900082
                               Opinion of the Court

                           _________________________

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

                           _________________________

STEPHENS, Judge:
    Appellant was charged with a specification of indecent viewing and a
specification of indecent recording under Article 120c, Uniform Code of
Military Justice [UCMJ], 10 U.S.C. § 920c (2012). He was acquitted of the
indecent viewing. He was also acquitted of the indecent recording, but found
guilty, contrary to his plea, of the lesser included offense of attempted
indecent recording, in violation of Article 80, UCMJ.
    Appellant raises three assignments of error [AOEs]: (1) the evidence is
legally and factually insufficient; (2) the military judge abused her discretion
by allowing the trial counsel [TC] to refer to evidence during pre-sentencing
of misconduct for which Appellant was acquitted; and (3) the bad-conduct
discharge was an inappropriately severe sentence. We find that even if the
military judge abused her discretion in allowing the trial counsel to make
improper arguments during pre-sentencing and failing to give the members a
sufficient curative instruction that this error was not materially prejudicial to
Appellant’s substantial rights. Concluding that the conviction is legally and
factually sufficient and the sentence is not inappropriate, we affirm the
findings and sentence as adjudged.

                               I. BACKGROUND

    Special Agent [SA] Whiskey 1 was the Naval Criminal Investigative Ser-
vice [NCIS] special agent afloat for the USS NIMITZ (CVN-68). In July 2017,
she received a call from the ship’s Command Manager for Equal Opportunity.
There was a complaint about a male Sailor—Appellant—allegedly “peeking” 2
at another Sailor in one of the men’s heads. She began her investigation by
interviewing two Sailors. Interior Communications Electrician Second Class



   1 Throughout this opinion, we use pseudonyms to refer to Special Agent Whiskey,
IC2 Victor, EM2 Delta, and AN Sierra.
   2   Record at 244.




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                     United States v. Phillips, NMCCA No. 201900082
                                   Opinion of the Court

[IC2] Victor said he saw Appellant peeking at Electrician’s Mate Second
Class [EM2] Delta through chest-high dime-sized holes in a bulkhead
partition while he showered. SA Whiskey also interviewed EM2 Delta.
     When SA Whiskey interviewed Appellant, he admitted he was in that
head at the alleged time. But he explained he had a hole in his shower caddy,
which often caused his shaving and grooming equipment to fall onto the floor.
Appellant told SA Whiskey he would look on the floor for his items when they
fell, including in the shower. She took pictures of the scene and submitted her
report to the command. At trial, SA Whiskey testified that “the investigation
was closed after [Appellant] was counseled on proper bathroom etiquette.” 3
    About four months later, in November 2017, a squadron Sailor, Airman
[AN] Sierra, was showering in a different head aboard the ship. When he was
rinsing off, he saw a cellphone camera just inside the shower curtain at about
waist level, causing him to yell, “[W]hat the f[***]?” 4 As he opened the shower
curtain, he saw the fully-clothed Appellant—whom he did not know—quickly
enter another shower stall and turn the water on with the nozzle aimed away
from him. AN Sierra finished his shower and waited for a few minutes. He
then saw Appellant leave the shower stall and exit the head as he looked in
his direction. Appellant was in complete shipboard uniform from coveralls to
boots, was not wet, and did not have a towel, soap, or a shaving kit. AN
Sierra told his chain of command and eventually went to see SA Whiskey.
    SA Whiskey had AN Sierra try to identify Appellant using a photographic
array. He got a good look at Appellant and was able to provide SA Whiskey a
description. SA Whiskey obtained photographs from the ship’s media
department of Sailors matching Appellant’s description. But Appellant’s
photo was not actually among the first photographs, and AN Sierra was
unable to identify any of them as the suspect. However, AN Sierra had seen
Appellant elsewhere in the ship and told SA Whiskey that he had seen him in
a “green supply jersey.” 5 This made SA Whiskey think of Appellant. She told
her NCIS co-worker, “Hey, I think I know exactly who he’s talking about. I
just saw [Appellant], who I had another investigation with, in a green jersey
and in the mess decks.” 6 When AN Sierra looked at a new photographic




   3   Id. at 248.
   4   Id. at 291, 307-08.
   5   Id. at 257.
   6   Id.




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                     United States v. Phillips, NMCCA No. 201900082
                                   Opinion of the Court

array—this time with a picture of Appellant—he “immediately” 7 identified
him.
    At trial, Appellant was charged with two specifications of violating Article
120c, UCMJ. 8 The first specification alleged an indecent viewing of EM2
Delta back in July 2017—the incident which, apparently, had previously
resulted in some kind of counseling. The second specification was for the
November 2017 incident. During the findings portion of the trial, SA Whiskey
testified about her investigation into the July 2017 incident, including her
belief that it had resulted in counseling. 9 Appellant’s civilian defense counsel
[CDC] did not object to this testimony.
   The Government presented the testimony of SA Whiskey, IC2 Victor,
EM2 Delta and AN Sierra. The military judge admitted seven prosecution
exhibits, which were diagrams of the heads and the photographic arrays. The
Defense did not put on a case. The members acquitted Appellant of the July
2017 incident but found him guilty of the November 2017 incident.
    During pre-sentencing, the Government offered no evidence. AN Sierra
presented a brief unsworn statement pursuant to Rule for Courts-Martial
[R.C.M.] 1001A. He told the members how he had lost his “sense of privacy”
and had a “hard time doing things such as taking showers and even sleeping”
that caused him to “lose focus” with his duties on the flight deck, 10 but he was
able to “bounce back” quickly. 11 He also never told his family what happened
because he did not want them to worry about him. He ended his unsworn
statement by telling the members, “due to this violation of my privacy, it has
made me not want to continue my career in this branch of service.” 12
   Appellant presented character testimony from a third class petty officer
and a first class petty officer. The military judge admitted Appellant’s awards
and evaluations and two character letters; one from a former teacher and
coach, and one from a master chief who was Appellant’s current (albeit



   7   Id. at 262.
   8 The Government initially charged three specifications, but withdrew the first
one, which alleged that Appellant indecently viewed IC2 Victor who merely saw
Appellant indecently viewing EM2 Delta in July 2017. See Charge Sheet.
   9   Record at 248.
   10   Id. at 397.
   11   Id. at 398.
   12   Id.




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                    United States v. Phillips, NMCCA No. 201900082
                                  Opinion of the Court

temporary) supervisor. The master chief asked the members to give Appel-
lant a “second chance” and put his “Anchors and Two Stars on the table” in
the hopes they would do so. 13 Finally, Appellant made an unsworn statement
during which he accepted responsibility for upsetting the victim, but he did
not admit his guilt of the offense. He apologized to AN Sierra and acknowl-
edged that he knew his “career in the Navy [was] over” but asked not to
receive a bad-conduct discharge. 14
    The TC recommended a sentence of five months’ confinement, forfeiture of
$800 per month for five months, reduction to E-1, and a bad-conduct dis-
charge. The TC argued that this sentence would serve as a “reminder” to
Appellant, which was “particularly important in this case because [he]
already had that reminder once.” 15 The TC continued:
              TC:        He already had that warning once because back in
                         July of 2017, he was counseled about appropriate
                         bathroom etiquette. In response to that, he started
                         using a different head—
              DC:        Your Honor, I’m going to object; this is not before the
                         members.
              TC:        Your Honor, there was evidence presented that in
                         July of 2017, after the first incident, Special Agent
                         Whiskey testified that he received a counseling—
              MJ:        The objection is overruled.
              TC:        That reminder is even more appropriate because he
                         already got that reminder once, and in November, he
                         was using a different head, and he ignored it. 16
The TC described his sentence recommendation as appropriate because it
“sends a message to every other Sailor who might be good at his job but
thinks about looking at one of his shipmates in a shower.” 17 In concluding,
the TC argued that a lenient sentence would send a message that as long as




   13   Def. Ex. A at 3.
   14   Record at 407.
   15   Id. at 415.
   16   Id. at 415-16.
   17   Id.




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                  United States v. Phillips, NMCCA No. 201900082
                                Opinion of the Court

“you’re good at your job, . . . it doesn’t matter what you do. You can spy on
your shipmates in the shower . . . .” 18
    After the TC’s argument, the Defense requested a limiting instruction on
account of the “improper argument.” 19 In response, the military judge said,
“All right, members, the—the evidence that you heard during the findings
portion is evidence that is still before the court, so you are allowed to consider
it. [Appellant] is only going to be sentenced for the offense for which you
found him guilty.” 20
    When the members started deliberations, the Defense asked to state for
the record that SA Whiskey never saw a counseling document, that the
Government never presented a counseling document, and that it was the
Defense’s belief that the command never counseled Appellant. The Defense
also argued that the TC made an improper argument that Appellant repeated
his conduct in spite of the counseling, improperly undercutting any Defense
argument for rehabilitative potential. This was aggravated, the Defense
argued, because the underlying conduct for the alleged counseling was
conduct for which he was just acquitted. Finally, the Defense argued that this
kind of error was “so prejudicial that it might merit a sentencing rehear-
ing[.]” 21

                                  II. DISCUSSION

A. The Evidence is Legally and Factually Sufficient
    We review Appellant’s convictions for legal and factual sufficiency de
novo. 22 The test for factual sufficiency is whether, “after weighing the
evidence in the record of trial and making allowances for not having person-
ally observed the witnesses, [this Court is] convinced of [A]ppellant’s guilt
beyond a reasonable doubt.” 23 In conducting this unique appellate function,
we take “a fresh, impartial look at the evidence,” applying “neither a pre-



   18   Id.
   19   Id. at 417.
   20   Id.
   21   Id. at 444.
   22   Art. 66, UCMJ; United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).
   23 United States v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017) (emphasis, citation,
and internal quotation marks omitted).




                                           6
                 United States v. Phillips, NMCCA No. 201900082
                               Opinion of the Court

sumption of innocence nor a presumption of guilt” to “make [our] own
independent determination as to whether the evidence constitutes proof of
each required element beyond a reasonable doubt.” 24 When conducting this
review, we are “limited to the evidence presented at trial.” 25 Proof beyond a
reasonable doubt does not mean, however, that the evidence must be free
from conflict. 26
    When testing for legal sufficiency, we look at “whether, considering the
evidence in the light most favorable to the prosecution, a reasonable factfind-
er could have found all the essential elements beyond a reasonable doubt.” 27
    To convict Appellant under Article 80, UCMJ, 28 the Government must
prove beyond a reasonable doubt that: (1) Appellant made a certain overt act;
(2) this amounted to more than mere preparation; (3) it apparently tended to
effect the commission of a crime; and (4) the act was done with specific intent
to commit another offense under the UCMJ. Here, the underlying offense was
indecent recording under Article 120c, UCMJ.
    The case against Appellant was strong. When AN Sierra testified, he
described how he saw Appellant in the head, how Appellant held his cell-
phone camera inside the shower curtain, and how he saw him run into a
nearby shower—fully clothed—and pretend to shower. He testified that he
saw Appellant leave the shower and the head, while still dry in a full
coveralls uniform. The Government also presented both photographic arrays
that SA Whiskey presented to the victim in order to identify Appellant—the
first array that did not have Appellant’s photograph (from which the victim
did not select any photograph), and the second array from which he immedi-
ately identified and selected Appellant.
    SA Whiskey also testified that when she interviewed Appellant for the
November 2017 incident, his explanation was that he went into the head
after working out just to wash his “genital area because he had some medical




   24   Washington, 57 M.J. at 399.
   25 United States v. Pease, 75 M.J. 180, 184 (C.A.A.F. 2016) (quoting United States
v. Beatty, 64 M.J. 456, 458 (C.A.A.F. 2007)).
   26   United States v. Goode, 54 M.J. 836, 841 (N-M. Ct. Crim. App. 2001).
   27 United States v. Turner, 25 M.J. 324 (C.M.A. 1987) (citing Jackson v. Virginia,
443 U.S. 307, 319 (1979)); see also United States v. Robinson, 77 M.J. 294, 297-98
(C.A.A.F. 2018).
   28   10 U.S.C. § 880 (2016).




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                  United States v. Phillips, NMCCA No. 201900082
                                Opinion of the Court

things going on.” 29 He was also upset that the Sailor accused him and did not
attempt to have a “verbal dialog” 30 [sic] with him, but instead just reported
the incident to NCIS. Finally, he opined that he was “being accused of all
these accusations” because he put an end to the “moneymaking” by which he
claimed the ship’s Air Department would order supplies and sell them to the
air wing. 31
    Appellant’s statements to SA Whiskey were almost tantamount to a con-
fession. Coupled with AN Sierra’s positive identification of Appellant in the
photographic array and the lack of any apparent bias or motive to fabricate,
we find the conviction factually sufficient. Also, in reviewing the evidence “in
the light most favorable to the prosecution” 32 we find that a reasonable
factfinder could have found all the essential elements beyond a reasonable
doubt. The conviction is both factually and legally sufficient.

B. Trial Counsel’s Argument in Pre-Sentencing Was Not Prejudicial
    “When preserved by objection, this Court reviews allegations of improper
argument de novo to determine whether the military judge’s ruling consti-
tutes an abuse of discretion.” 33 Prosecutorial misconduct occurs when trial
counsel “oversteps the bounds of that propriety and fairness which should
characterize the conduct of such an officer in the prosecution of a criminal
offense.” 34 “Improper argument is one facet of prosecutorial misconduct.” 35
    The military judge was presented with an unusual situation. The evi-
dence of the counseling was admitted during findings without objection and
without limitation. Under Mil. R. Evid. 105, this means this evidence was
“fair game” and could be used without limitation. Although during findings
the TDC could have objected for any number of reasons (hearsay, lack of
personal knowledge, relevance), he did not. The TDC could also have cross-


   29   Record at 263.
   30   Id.
   31   Id. at 264.
   32 Rosario, 76 M.J. at 117 (quoting United States v. Gutierrez, 73 M.J. 172, 175
(C.A.A.F. 2014)).
   33United States v. Sewell, 76 M.J. 14, 18 (C.A.A.F. 2017) (citing United States v.
Hornback, 73 M.J. 155, 159 (C.A.A.F. 2014)).
   34 United States v. Fletcher, 62 M.J. 175, 178 (C.A.A.F. 2005) (quoting Berger v.
United States, 295 U.S. 78, 84 (1935)).
   35   Sewell, 76 M.J. at 18 (citing United States v. Young, 470 U.S. 1, 7-11 (1985)).




                                             8
              United States v. Phillips, NMCCA No. 201900082
                            Opinion of the Court

examined SA Whiskey in detail on the foundation of her knowledge and
developed what she meant by “bathroom etiquette.” But the TDC did none of
this and only objected to the argument and claimed he believed the testimony
was untrue, during and after sentencing argument when the evidence had
long been admitted without limitation.
    On appeal, the Defense argues the TC’s argument cut too close to a serial
offender argument. The problem is that we simply do not know what the
counseling entailed, or if it happened at all. If Appellant was counseled not to
commit Article 120c offenses and specifically told not to attempt to view or
photograph other Sailors as they showered, then the TC’s argument was
certainly a serial offender argument. On the other hand, if Appellant was
counseled not to take his cell phone into bathrooms because other Sailors
may misinterpret his actions, then the TC’s argument can be viewed in a
different light. The record is unclear as to what the counseling entailed
because the TDC did not object or elicit further information. Given the two
possible interpretations of this argument, and its lack of persuasive force, we
will consider whether this argument—if error—prejudiced Appellant.
    The military judge provided two instructions, both of which were legally
correct: that the members can consider evidence presented during findings
and that the members could only sentence Appellant for the offense of which
he was found guilty. While this instruction did not address the TDC’s concern
over the TC’s bootstrapping argument, we find any error did not prejudice
appellant.
     Our superior court has “set out three factors to guide our determination
of the prejudicial effect of improper argument: (1) the severity of the miscon-
duct, (2) the measures adopted to cure the misconduct, and (3) the weight of
the evidence supporting the conviction.” 36 “In the context of an allegedly
improper sentencing argument, we consider whether trial counsel’s com-
ments, taken as a whole, were so damaging that we cannot be confident that
[Appellant] was sentenced on the basis of the evidence alone.” 37 Here, the
prejudice was minimal at best. If the members had believed beyond a
reasonable doubt that Appellant actually committed the alleged indecent
viewing (or attempted indecent viewing) that was the subject of the counsel-
ing, then they would have convicted him on that specification. But they did


   36Sewell, 76 M.J. at 18 (quoting Fletcher, 62 M.J. at 184) (internal quotation
marks omitted).
   37United States v. Halpin, 71 M.J. 477, 480 (C.A.A.F. 2013 (internal quotation
marks and citation omitted).




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                 United States v. Phillips, NMCCA No. 201900082
                               Opinion of the Court

not. The TC’s bootstrapping argument did not result in an unreasonably
severe sentence. And the military judge did instruct the members to only
sentence Appellant for the offense for which he was convicted. As we discuss
below, we believe a bad-conduct discharge was an appropriate sentence under
the circumstances. Finally, as discussed above, the weight of the evidence
during findings against Appellant was strong—and that strength carried over
into sentencing. We find no prejudice.

C. The Bad-Conduct Discharge is an Appropriate Sentence
    We review sentence appropriateness de novo. 38 “Sentence appropriateness
involves the judicial function of assuring that justice is done and that the
accused gets the punishment he deserves.” 39 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.” 40 Despite our
significant discretion in determining sentence appropriateness, we are
mindful that this discretion does not extend to engaging in acts of clemency. 41
    A bad-conduct discharge is “designed as punishment for bad-conduct ra-
ther than as a punishment for serious offenses of either a civilian or military
nature.” 42 Appellant attempted to record another Sailor while he was
showering aboard ship, causing him to state that he no longer wanted to stay
in the Navy. Appellant’s conduct certainly qualifies as “bad-conduct.”
    Having given individualized consideration to the nature and seriousness
of the crime, Appellant’s record of service, and the entire record of trial, we
conclude the sentence, to include the bad-conduct discharge, is not inappro-
priately severe.

                                  III. CONCLUSION

    After careful consideration of the record and briefs of appellate counsel,
we have determined the approved findings are correct in law and fact and
find no error materially prejudicial to Appellant’s substantial rights occurred.



   38   United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006).
   39   United States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988).
   40 United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (citation and internal
quotation marks omitted).
   41   United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
   42   R.C.M. 1003(b)(8)(C).




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             United States v. Phillips, NMCCA No. 201900082
                           Opinion of the Court

Arts. 59, 66, UCMJ. Accordingly, the findings and sentence as approved by
the convening authority are AFFIRMED.
   Senior Judge TANG and Judge LAWRENCE concur.


                             FOR THE COURT:




                             RODGER A. DREW, JR.
                             Clerk of Court




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