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

                               No. 201600180
                          _________________________

                  UNITED STATES OF AMERICA
                                   Appellee
                                       v.

                       WALTER J. WAGERS III
              Private First Class (E-2), U.S. Marine Corps
                               Appellant
                        _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

    Military Judge: Lieutenant Colonel David M. Jones, USMC.
   Convening Authority: Commanding Officer, Marine Corps Air
                       Station, Beaufort, SC.
 Staff Judge Advocate’s Recommendation: Major Brett R. Swaim,
                               USMC.
   For Appellant: Lieutenant Jacqueline Leonard, JAGC, USN.
 For Appellee: Major Cory A. Carver, USMC; Lieutenant Robert J.
                        Miller, JAGC, USN.
                      _________________________

                         Decided 23 February 2017
                          _________________________

Before C AMPBELL , R UGH , and H UTCHISON , 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.
                     _________________________

   RUGH, Judge:
   A military judge sitting as a general court-martial convicted the
appellant, consistent with his pleas, of violating a general order, dereliction of
duty, wrongful use of marijuana and Oxycodone, sexual assault of a child,
sexual abuse of a child, receiving child pornography, negligent child
endangerment, and obstructing justice, —violations of Articles 92, 112a, 120b
                       United States v. Wagers, No. 201600180


and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 912a,
920b, and 934 (2012). The military judge sentenced the appellant to 10 years’
confinement, reduction to pay grade E-1, forfeiture of all pay and allowances,
and a dishonorable discharge. The convening authority (CA) approved the
sentence as adjudged.1
    The appellant now raises two assignments of error (AOE): (1) that the
military judge abused his discretion when he admitted Prosecution Exhibits
(PE) 51, 53, and 54 as evidence in sentencing; and (2) that the appellant’s
sentence was inappropriately severe.2 We disagree, and, finding no error
materially prejudicial to the appellant’s substantial rights, we affirm the
findings and sentence. Arts. 59(a) and 66(c), UCMJ.
                                    I. BACKGROUND
    In December 2014, the appellant communicated online and over the
telephone with a 15-year-old girl. Initially, the appellant believed—based on
the girl’s representation—that she was 17-years-old. However, when the girl’s
mother discovered a series of missed phone calls and sexually explicit text
messages from the appellant to her daughter, she contacted the appellant
online, informing him, “[t]his is [the girl’s] mother. She is a 15yearold minor.
I am sure you were not aware of that. Please desist from any further contact
with her. Thank you!”3 The girl’s older sister followed with a similar message
instructing the appellant to “back off.”4
   Despite these warnings, the appellant continued to engage in sexually
explicit conversations with the girl, including crude discussions of various
sexual acts, and sent pictures and videos of his genitalia to her. He also
requested and received approximately 15 pictures of the girl engaged in
sexually explicit conduct.
   On 19 February 2015, the appellant arranged to pick the girl up from her
home and transport her back to his on-base, barracks room some 80 miles
away. He did so without her parents’ knowledge, convincing her to lie to her
parents about where she would stay the weekend. Two days later, the
appellant’s roommate drove the appellant to the girl’s home, picked the girl
up, and returned to base. During the drive back, the appellant and the girl


   1 While the appellant pleaded guilty pursuant to a pretrial agreement, the
agreement had no effect on the sentence adjudged.
   2 AOE (2) was raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982).
   3   Stipulation of Fact, PE 1 at 2.
   4   Id.



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                        United States v. Wagers, No. 201600180


sat in the back seat where the appellant digitally penetrated her genitalia
and she masturbated him.
    Once alone in his barracks room, the appellant and the girl consumed
several cans of beer and shots of liquor provided by the appellant. They also
took prescription medications provided by the girl. Through the rest of the
weekend, they engaged in numerous sexual acts, including digital, oral,
vaginal, and anal penetration. During the course of their sexual congress, the
appellant’s behavior became increasingly physical and degrading. By the end
of the weekend, the girl was left with bruises, bite marks, and abrasions all
over her body.
    The next day, Sunday, 22 February 2015, the appellant convinced another
friend to drive him and the girl back to her home town. During the ride back,
the appellant again digitally penetrated the girl’s genitalia and she
masturbated him. They were met on the other end by the girl’s panicked
father, who had only just learned from the girl’s mother and older sister that
she was missing. The appellant was arrested, and when questioned by
investigators, asserted that the girl had drugged him without his knowledge.
He also denied he knew the girl was 15yearsold, and denied he provided her
with alcohol.
   After she returned home, the girl became increasingly depressed and
withdrawn. She was distraught with guilt, and she obsessed over the assault.
She withdrew from school and stopped participating in her regular activities.
In April 2015, she took her parents’ car and drove to the closest city where
she intended to throw herself off a building. She left behind a journal entry
that included “very childlike pictures of her laying on the ground . . . with all
these words above her head . . . escaping out of her head . . . . .”5 The escaping
words included the appellant’s name. However, on reaching the top of the
building and staring over the side, she decided against jumping. She returned
home with the help of a security guard.
    During the same time period, the appellant was engaged in a long-term,
long distance relationship with a 17-year-old girl. He regularly communicated
with the girl over the telephone and online via live video applications. During
these encounters, occurring on almost a daily basis, the appellant requested
and received images and videos of the girl engaging in sexually explicit
conduct. During the live video encounters, the appellant would often instruct
the girl to perform specific sexual acts. He did so with other Marines present
in the room, on occasion encouraging them to watch without the 17-year-old
girl’s knowledge.

   5   Record at 219.



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                                 II. DISCUSSION
A. Admission of PE 51, PE 53, and PE 54 in presentencing
    During the pre-sentencing phase of trial, the military judge admitted PE
51 over defense objection and PE 53 and PE 54 without objection. PE 51 was
a copy of local county jail call logs showing ongoing communications between
the appellant and the 17-year-old girl after he was incarcerated for his
offenses, including receipt of child pornography involving the girl. PE 53 and
PE 54 were letters between the appellant and the 17-year-old girl,
intercepted at the jail, which contained both sexually explicit descriptions
and other, more mundane personal banter.
    When the government offered PE 51, defense counsel objected to the
relevance of the call logs in sentencing. The military judge asked, “So you
don’t understand that if he’s pleading guilty to texting back-and-forth that if
she’s still a minor he’s having communication after he’s in the brig for these
charges. You think that that’s not relevant?”6
    Defense counsel responded, “I see how it is related to the narrative of his
interaction with these individuals. Calling her is not misconduct.”7
   The military judge then overruled the objection, elaborating:
         It does have relevance. It’s not forbidden by [MILITARY RULE OF
         EVIDENCE (MIL. R. EVID.)] 403[, SUPPLEMENT TO THE MANUAL
         FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). If I forgot to
         say so for any of these exhibits, I’m completely aware of [MIL.
         R. EVID.] 403 and that it applies on sentencing, and I will seek
         to try to put that on the record every chance I get. But I
         certainly understand [MIL. R. EVID.] 403 applies to sentencing.
         So [PE 51] is admitted into evidence.8
    The government sought admission of PE 53 and PE 54 through the
testimony of a Naval Criminal Investigative Service special agent. Defense
counsel did not object, and the military judge admitted the exhibits.
Subsequently, the special agent testified regarding the content of audio
recordings of jail house calls between the appellant and the 17-year-old girl.
The agent described the calls as a mixture of statements of affection and
sexually explicit content. Defense objected to this line of questioning,
articulating that:


   6   Id. at 194.
   7   Id.
   8   Id. at 195.



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                      United States v. Wagers, No. 201600180


          The misconduct that he’s been charged with and found guilty of
          at this point is the child pornography charges regarding the
          images. Delving into other conduct that is not wrongful under
          the law with regards to communication, verbal, written, text,
          that sort of thing, we think would be improper aggravation
          with regard to the charge that he’s been found guilty of.9
    The military judge followed up with the trial counsel.
          MJ [Military Judge]: So the point now that you want me to
          understand is that he has continued to be in contact with [the
          17-year-old girl] when he’s confined and still engage[d] in some
          sort of sexually charged conversation with her in spite of the
          charges; is that correct?
          ATC [Assistant Trial Counsel]: Yes, sir. Exactly.
          MJ: I can take that much and then still sustain the objection
          at this point, if we’re going to get into the particulars of all
          these items, because I don’t need to know all the particulars.
          Because under [MIL. R. EVID.] 403 that could prejudice me to
          get more angry at the accused than I should. I think the
          probative value is substantially outweighed by the danger of
          unfair prejudice. The fact of whether he’s still communicating
          with minors while he’s confined pending trials of doing these
          kinds of misconduct with minors is sufficient in that fact that
          she’s told me that there was sexual banter back and forth is
          fine.10 I don’t need to hear all the specifics for me to get that
          sentencing principle to assist the government in aggravating
          the case. So the objection is sustained if we’re going further on
          down this road. But I am going to consider that while he was
          confined, there were these phone calls. They were of a sexual
          nature between [the appellant] and [the 17-year-old girl].
          Because that’s directly relating to the charge, and it goes to
          possibly an absence of rehabilitative potential or lack of
          contrition or whatever else. So the fact that they’re made, I do


    9   Id. at 248.
    10 The appellant also objects to the military judge’s use of the word “minor” in
this context, arguing that the 17-year-old girl was not a minor for purposes of Article
120b, UCMJ. However, she was a “minor” under the relevant offense of receipt of
child pornography, Article 134, UCMJ. MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2012 ed.), Part IV, ¶ 68b.c(4). As a result, the military judge’s use of the term
here was reasonable.



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                      United States v. Wagers, No. 201600180


         believe is directly relating to or resulting from. It’s a
         continuation of the same victim, the same type of crime,
         etc. . . .11
    Prior to the military judge’s deliberations on sentence, trial counsel
sought to clarify the applicability of this ruling on the special agent’s
testimony to the military judge’s consideration of PE 53 and PE 54, already
admitted without objection.
         TC: [T]he government does want the military judge to consider
         the general content of [PE 53 and PE 54] to the extent that
         they contained statements of, “I love you,” and affection going
         back and forth as well as sexually explicit material without
         getting into the specifics of what that sexually explicit material
         was.
         MJ: Right. So I can consider what the agent said on that
         regard, but I can open the letter, look how long the letter is, put
         the letter back in the envelope, I don’t need to read all of the
         particulars of their lives, which I really don’t care about.
         TC: Absolutely, yes, sir. As long as, again, the judge is going to
         consider the fact that they do contain sexually explicit material
         because the government does feel that is an aggravating
         circumstance here.
         MJ: Right. And I allowed that with the agent’s testimony.12
    The military judge then accepted the jailhouse letters, phone logs, and
relevant portions of the special agent’s testimony to show the appellant’s
continuing, sexually explicit communications with one of the victims of the
receipt of child pornography charge. The defense did not object to this
decision as it applied to PE 53 and PE 54 and did not otherwise seek to admit
the complete contents of either exhibit.
    The appellant now asserts that admitting PE 53 and PE 54 was error in
that the probative value of the jailhouse letters was substantially outweighed
by the risk of unfair prejudice resulting from the sexually explicit content of
the letters. Conversely, the appellant asserts that the admission of PE 51, PE
53, and PE 54—accompanied by the testimony of the special agent—solely for
the purpose of showing that explicit communications took place, was error in


   11   Record at 248-49.
   12   Id. at 300.




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that the military judge should have considered the content of the calls and
letters to establish greater context for the communications between the
appellant and the 17-year-old girl. In other words, the military judge should
have admitted the letters and phone calls in their entirety or not at all.
   The admission of sentencing evidence is subject to the MIL. R. EVID. 403
balancing test and the substantive law and procedures set forth in RULE FOR
COURTS-MARTIAL 1001, MANUAL FOR COURTS-MARTIAL, UNITED STATES
(2012 ed.). United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000) (citing
United States v. Rust, 41 M.J. 472, 478 (C.A.A.F. 1995)).
    When the appellant objects at trial, this court reviews a military judge’s
decision to admit evidence, including sentencing evidence, for an abuse of
discretion. United States v. Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010). “‘The
abuse of discretion standard is a strict one, calling for more than a mere
difference of opinion. The challenged action must be arbitrary, fanciful,
clearly unreasonable, or clearly erroneous.’” United States v. White, 69 M.J.
236, 239 (C.A.A.F. 2010) (quoting United States v. Lloyd, 69 M.J. 95, 99
(C.A.A.F. 2010)).
    When the appellant does not object at trial, we review the military judge’s
decision to admit sentencing evidence for plain error. United States v.
Ramirez, No. 200800055, 2009 CCA LEXIS 453, at *7, unpublished op. (N-M.
Ct. Crim. App. 17 Dec. 2009) (citing United States v. Powell, 49 M.J. 460, 463-
65 (C.A.A.F. 1998)). When the appellant’s court-martial was by military judge
alone, he faces a “particularly high hurdle” when analyzing for plain error.
Id. at *8. Military judges are presumed to know and apply the law correctly;
to filter out inadmissible evidence; and to not rely on inadmissible evidence.
Id. (citing United States v. Robbins, 52 M.J. 455, 457 (C.A.A.F. 2000))13
   Under either error standard, relief is only appropriate if the erroneous
admission of evidence resulted in prejudice to the appellant.14 Even assuming
arguendo that the limited admission of the jailhouse letters and phone call



   13  In Ramirez, this court found that evidence of the appellant’s pre-service
marijuana use was insufficiently related in time, type, or outcome to the convicted
crime to qualify as proper evidence in aggravation. Regardless, utilizing the standard
applied to military judge-alone proceedings, we found that admission of this evidence
did not rise to the level of plain error. 2009 CCA LEXIS 453, at *8 (citing United
States v. Hardison, 64 M.J. 279, 281-82 (C.A.A.F. 2007)).
   14  This test for prejudicial error in sentencing is unique from that conceived in
MIL. R. EVID. 403, which “speaks to the capacity of some concededly relevant evidence
to lure the factfinder” into a decision on an improper basis. United States v. Collier,
67 M.J. 347, 354 (C.A.A.F. 2009) (citation and internal quotation marks omitted).



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testimony was substantially more prejudicial than probative, we find it
harmless.
    The erroneous admission of evidence during sentencing is tested “to
determine if the error substantially influenced the adjudged sentence.”
United States v. Griggs, 61 M.J. 402, 410 (C.A.A.F. 2005). If it did, then the
result is materially prejudicial to the appellant’s substantial rights. Art.
59(a), UCMJ. While we typically test for prejudice using the factors set out in
United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999), the analysis set out
in United States v. Saferite is more useful for sentencing errors. 59 M.J. 270,
274-75 (C.A.A.F. 2004). Under the Saferite analysis, we consider: 1) the
probative value and weight of the evidence; 2) the importance of the evidence
in light of other sentencing considerations; 3) the danger of unfair prejudice
resulting from the evidentiary ruling; and 4) the sentence actually imposed,
compared to the maximum and to the sentence the trial counsel argued for.
Griggs, 61 M.J. at 413 (Crawford, J., concurring in part and dissenting in
part) (citing Saferite, 59 M.J. at 274-75).
    Here, the government’s case in sentencing was prodigious. It comprised
68 exhibits and the statements or testimony of the 15-year-old victim, her
parents, and her stepfather. PE 50 (electronic copies of the pornographic
images), PE 51, PE 53, and PE 54 were the only government exhibits
pertaining to the child pornography charges involving the 17-year-old girl,
and these exhibits were partially rebutted by Defense Exhibit (DE) A, a
Naval Criminal Investigative Service results of interview report which
expressed the 17-year-old girl’s disinclination to cooperate in the
investigation and belief that the appellant “did nothing wrong to her.”15
Additionally, the government’s case included evidence of numerous
disciplinary infractions and poor history of prior service, as well as the
results of the appellant’s positive urinalysis.
    The providence inquiry and PE 1, the stipulation of fact, reviewed in great
detail the sexual abuse the appellant committed against the 15-year-old-girl,
including descriptions of oral, vaginal, and anal penetration. In a statement
to investigators, admitted as PE 18, she detailed a moment in which the
appellant placed a pillow over her head during sex with sufficient force that
she had difficulty breathing. Subsequently, he threatened to tie her up if she
refused to engage in anal intercourse with him. By contrast, the lurid but
fantasy-based communications between the appellant and the 17-year-old girl
pale in comparison to the actual abuse rendered by the appellant on his 15-
year-old victim. Finally, despite a possible sentence to confinement of 129 and


   15   Defense Exhibit A at 1.



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                      United States v. Wagers, No. 201600180


one-half years, the military judge imposed only confinement for 10 years.16 As
a result, we are confident the admission of this evidence did not alter the
appellant’s sentence or result in any other material prejudice to the
appellant.

B. Sentence appropriateness
    The appellant also asserts that his sentence is inappropriately severe, in
part, because of pre- and post-trial confinement conditions that violated Navy
instructions. Particularly, the appellant contends that he did not receive
regular monthly visits from a command representative prior to his court-
martial; that he lost certain confinement privileges without a timely hearing
post-trial; and that these privileges were withheld by a person without
authority to do so.17 The appellant has not alleged an Eighth Amendment or
Article 55, UCMJ violation, and we do not find one has occurred. Likewise,
the appellant does not indicate whether he has availed himself of
administrative remedies prior to seeking relief from this court.
    We review the record for 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 he deserves.” United States v. Healy, 26 M.J. 394, 395 (C.M.A.
1988). “This requires 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. McDonald, No. 201400357, 2016 CCA LEXIS
310, at *4, unpublished op. (N-M. Ct. Crim. App. 2016) (citations and internal
quotation marks omitted). “While [a Court of Criminal Appeals] clearly has
the authority to disapprove part or all of the sentence and findings,” we may
not engage in acts of clemency. United States v. Nerad, 69 M.J. 138, 145
(C.A.A.F. 2010).
    Our authority to grant sentence appropriateness relief for conditions of
post-trial confinement is not unlimited, but may be exercised in cases “based
on a legal deficiency in the post-trial process[.]” United States v. Gay, 75 M.J.
264, 269 (C.A.A.F. 2016). Regardless, “[a] prisoner must seek administrative
relief prior to invoking judicial intervention to redress concerns regarding
post-trial confinement conditions.” United States v. Wise, 64 M.J. 468, 469
(C.A.A.F. 2007) (citation omitted). This requirement “promot[es] resolution of

   16 Of course, as the dishonorable discharge was mandatory, the decision to award
it was outside the discretion of the military judge and was not substantially swayed
by the admission of any erroneous evidence.
   17   Appellant’s Motion to Attach Appellant’s Declarations, filed 8 Nov 2016.




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                   United States v. Wagers, No. 201600180


grievances at the lowest possible level [and ensures] that an adequate record
has been developed [to aid appellate review].” Id. at 471 (alterations in the
original) (quoting United States v. Miller, 46 M.J. 248, 250 (C.A.A.F. 1997)).
The appellant has failed to carry that burden here.

   Under the circumstances of this case, we are convinced that justice was
done, and that the appellant received the punishment he deserved. Healy, 26
M.J. at 395. Granting relief at this point would be to engage in clemency, a
prerogative reserved for the convening authority, and we decline to do so.
                              III. CONCLUSION
   The findings and sentence, as approved by the CA, are affirmed.
   Senior Judge CAMPBELL and Judge HUTCHISON concur.
                                      For the Court



                                      R.H. TROIDL
                                      Clerk of Court




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