UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                            MULLIGAN, HERRING, and BURTON
                                Appellate Military Judges

                            UNITED STATES, Appellee
                                          v.
                    Sergeant First Class JASON M. COMMISSO
                          United States Army, Appellant

                                      ARMY 20140205

                        8th Theater Sustainment Command
                 Jeffery D. Lippert, Military Judge (arraignment)
                       David L. Conn, Military Judge (trial)
             Colonel Paul T. Salussolia, Staff Judge Advocate (pretrial)
            Colonel Anthony T. Febbo, Staff Judge Advocate (post-trial)


For Appellant: Major M. Patrick Gordon, JA; Eugene R. Fidell, Esquire (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major John K. Choike, JA; Captain
Scott L. Goble, JA (on brief).


                                        29 April 2016

                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

MULLIGAN, Senior Judge:

       An officer panel sitting as a general court-martial, convicted appellant,
contrary to his pleas, of one specification of violation of a lawful general regulation,
one specification of making a false official statement, two specifications of abusive
sexual contact, one specification of indecent viewing of a person’s private area, one
specification of indecent recording of a person’s private area, one specification of
wrongful distribution of a recording of a person’s private area, and one specification
of obstruction of justice in violation of Articles 92, 107, 120, 120c, and 134,
Uniform Code of Military Justice, 10 U.S.C. §§ 892, 907, 920, 920c, 934 (2012)
[hereinafter UCMJ]. The panel sentenced appellant to a bad-conduct discharge,
confinement for one year, forfeiture of all pay and allowances, and reduction to the
grade of E-1. The convening authority approved the sentence as adjudged.
COMMISSO — ARMY 20140205

       This case is before this court for review under Article 66, UCMJ. Appellant
raises seven assignments of error, two of which merit discussion and relief.
Appellant also personally raises several additional matters pursuant to United States
v. Grostefon, 12 M.J. 431 (C.M.A. 1983), none of which merit discussion or relief.

                                        FACTS

       Appellant met Marine Private First Class (PFC) EW 1 on the morning of 31
May 2013 while both were at physical therapy at Tripler Army Medical Center
(TAMC). They talked, got to know each other, and eventually PFC EW gave
appellant her phone number. During their initial conversation at TAMC, PFC EW
told appellant that she was nineteen years old and that she was in physical therapy
for an injury she received during basic training. Private First Class EW learned that
appellant had been in the Army for sixteen years.

       Appellant contacted PFC EW via text message that same day, and they made
plans to go to dinner and a movie that night. Because PFC EW’s injury prevented
her from driving, appellant picked her up at her barracks at Marine Corps Base
Hawaii. Private First Class EW’s injury prevented her from walking and
necessitated the use of a wheelchair. Appellant and PFC EW went to dinner at
Cheesecake Factory, which PFC EW described at appellant’s court-martial as an
“expensive” restaurant. According to PFC EW, appellant tried to hold her hand
during dinner and later he kissed her on the forehead. After dinner, they
unsuccessfully tried to see a movie and ended up going on a motorcycle ride instead.
At the end of the evening, appellant asked PFC EW if she wanted to stay at his
apartment or have him take her home. Private First Class EW testified that she felt
“obligated” to stay at his apartment because he bought her an “expensive” dinner.

       Once inside appellant’s apartment, PFC EW took a morphine pill and fell
asleep on his couch while they were watching television. She woke up to appellant
touching her chest and stomach. She testified that her shirt and bra were pushed
away and she, while pretending to be asleep, heard appellant taking pictures of her
chest and saw camera flashes. At trial, the government alleged that appellant took
additional photographs of PFC EW’s nipple later on in the evening, pictures she was
not aware of until shortly before the trial began. In addition, without PFC EW’s
consent, appellant sent a nude photo of PFC EW that she had taken herself to
another soldier.

       Private First Class EW eventually reported that appellant had sexually
assaulted her and the U.S. Army Criminal Investigation Command (CID) opened an
investigation. Appellant, during an interview with CID Special Agent (SA) JM,




1
    The Marine Corps promoted her to Lance Corporal by the time of trial.
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COMMISSO — ARMY 20140205

initially denied, and then later admitted, taking pictures of PFC EW. 2 Based on
these statements, the government charged appellant with making a false official
statement. The government’s proof of this specification consisted mainly of the
testimony of SA JM. On direct examination, SA JM testified that during his first
interview, he specifically asked appellant whether he had taken any pictures of PFC
EW, and SA JM testified appellant denied his accusation. On cross-examination,
however, SA JM admitted that his question to appellant was “did you take any nude
pictures of PFC [EW]?” (emphasis added). Special Agent JM further admitted that
he did not ask appellant if he had taken any topless pictures of PFC EW.

      During his closing argument, trial defense counsel argued that “nude” is not
the same thing as “topless,” and when appellant denied taking any “nude” pictures of
PFC EW, he was telling the truth. The pictures he took were “topless,” but not
“nude,” and therefore he could not be convicted of making a false official statement.

      The Specification of Charge V alleged appellant made a false official
statement as follows:

             In that [appellant] did, on or near the island of Oahu, on or
             about 2 June 2013, with intent to deceive, make to [SA
             JM], an official statement, to wit: “I didn’t take any
             pictures of [PFC EW] nude,” or words to that effect,
             which statement was false in that [appellant] did take
             photographs of [PFC EW’s] bare breast, 3 and was then
             known by the [appellant] to be so false. (emphasis added).

The military judge instructed the panel on this specification, without defense
objection, as follows:

             To find the accused guilty of this offense, you must be
             convinced by legal and competent evidence beyond
             reasonable doubt: [o]ne, that at or near the island of Oahu
             on or about 2 June 2013, the accused made to [SA JM] a
             certain official statement, that is: “I didn’t take photographs
             of [PFC EW’s] bare breast” or words to that effect; [t]wo,
             that such statement was false in that the accused did take




2
 Law enforcement agents found several of these pictures on appellant’s phone, some
of which were admitted by the government as exhibits at trial.
3
 The promulgating order is incorrect for this specification. It has “nude” instead of
“bare breast” at the indicated location. We order this correction to the promulgating
order.
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COMMISSO — ARMY 20140205

             photographs of [PFC EW’s] bare breasts. (emphasis
             added). 4

       On appeal, appellant claims the military judge failed to properly instruct the
panel on this specification, and the evidence was factually insufficient to convict
appellant of making a false official statement. We find that the military judge
committed plain error in his instructions and, that under the unique circumstances of
this case, this error materially prejudiced appellant’s substantial rights.

                                LAW AND ANALYSIS

              A. The Specification of Charge V, False Official Statement

       We review de novo the question of whether the members were properly
instructed. United States v. Payne, 73 M.J. 19, 22 (C.A.A.F. 2014). However, when
the defense fails to object to an instruction at trial, we review for plain error. Id. at
23; United States v. Davis, 75 M.J. 537, 543 (Army Ct. Crim. App. 2015); see also
Rule for Courts Martial [hereinafter R.C.M.] 920(f). "Under a plain error analysis,
the accused 'has the burden of demonstrating that: (1) there was error; (2) the error
was plain or obvious; and (3) the error materially prejudiced a substantial right of
the accused.'" Payne, 73 M.J. at 23-24 (quoting United States v. Tunstall, 72 M.J.
191, 193-94 (C.A.A.F. 2013)). The government bears the burden of determining
what offenses to charge an accused. United States v. Morton, 69 M.J. 12 (C.A.A.F.
2009).

       Here, the military judge impermissibly substituted the wrong language from
the charge sheet in his instructions concerning the Specification of Charge V.
Although the specification alleged appellant made an official statement by saying “I
didn’t take any pictures of [PFC EW] nude,” the military judge instructed the panel
that his official statement was “I didn’t take photographs of [PFC EW’s] bare
breast.” (emphasis added). We find that this change in wording by the military
judge is error and it is plain or obvious. We further find that this plain error
prejudiced appellant’s substantial rights for two reasons. First, there was no
evidence that appellant ever told SA JM that he did not take photographs of PFC
EW’s bare breast. To the contrary, SA JM testified that he never asked about topless
photographs. Thus, based solely on this instruction, the panel could not have
convicted appellant of denying taking a picture of PFC EW’s bare breast because
there was no evidence appellant ever made such a statement.

       More importantly, given defense counsel’s argument and defense to this
specification and charge, this instruction changed the nature of the charge in a way
that made it easier for the panel to find appellant guilty. Appellant did not provide a


4
 We also note the military judge erred by referring to “breasts” rather than “breast”
as charged in the Specification of Charge V.
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COMMISSO — ARMY 20140205

written statement to CID, and the record contains no evidence that SA JM’s
interview of appellant was videotaped. Thus, we must rely on SA JM’s testimony as
to the exact language of his questions regarding the photographs. Special Agent JM
initially testified on direct examination that appellant denied taking any pictures of
PFC EW. If this testimony were undisputed, appellant’s guilt would be clear
because the government offered eight photographs of PFC EW that appellant later
admitted he took without her consent. However, on cross-examination, it became
clear that SA JM asked appellant if he took any nude pictures of PFC EW.
Arguably, appellant could have heard that question and answered in the negative
thinking that the pictures he took were not nude, but just of her bare breast.
Whether this hypothetical was actually the case and appellant truly lacked the intent
to deceive when making his statement, or whether appellant answered in the negative
intending to deceive SA JM into believing that he did not take any pictures of PFC
EW (nude or otherwise), was a question for the panel to decide based on the
evidence presented.

       Had the military judge given the instruction the way the charge was worded,
using the word “nude,” the panel would have had to discuss what appellant’s intent
was in denying taking “nude” photographs. Instead, by changing “nude” to “bare
breasts,” the military judge made this decision much easier on the panel. All the
panel had to do was determine that appellant specifically denied taking photographs
of PFC EW’s bare breasts and that he did, in fact, take photographs of her bare
breasts. 5 Since the panel had the actual photographs taken by the appellant of PFC
EW’s breasts in evidence, they found, relying on the erroneous instruction, that
appellant had made a false statement. Accordingly, because the military judge’s
erroneous instruction on the elements of false official statement materially
prejudiced appellant’s substantial rights, we will set this charge and its specification
aside in our decretal paragraph.

      B. The Specification of Charge III, Violation of a Lawful General Regulation

       In accordance with Article 66(c), UCMJ, we review 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. Turner, 25 M.J. 324,
324-35 (C.M.A. 1987); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979);
United States v. Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002). 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, [we] are
[ourselves] convinced of the accused's guilt beyond a reasonable doubt." Turner, 25
M.J. at 325.



5
    See supra note 4.
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COMMISSO — ARMY 20140205

      Appellant’s misconduct described above resulted in a charge of violating a
lawful general regulation, specifically Army Reg. 600-20, Personnel – General:
Army Command Policy [hereinafter AR 600-20], para. 4-14.b. (18 Mar. 2008), by
“wrongfully having an inappropriate relationship with [PFC EW] which was, or was
perceived to be, coercive in nature and created an adverse or clearly predictable
adverse impact on discipline.”

       Army Regulation 600-20, para. 4-14.b. prohibits relationships between
soldiers of different ranks if they:

             (1) Compromise, or appear to compromise, the integrity of
             supervisory authority or the chain of command.

             (2) Cause actual or perceived partiality or unfairness.

             (3) Involve, or appear to involve, the improper use of rank
             or position for personal gain.

             (4) Are, or are perceived to be, exploitative or coercive in
             nature.

             (5) Create an actual or clearly predictable adverse impact
             on discipline, authority, morale, or the ability of the
             command to accomplish its mission.

       Having completed our review and in consideration of the entire record, we
find that appellant’s conviction for violating a lawful general regulation is not
legally or factually sufficient. Specifically, we find that the government failed to
prove beyond a reasonable doubt that the “relationship” between appellant and PFC
EW was, or was perceived to be, coercive in nature, or that it created an adverse or
clearly predictable adverse impact on discipline.

       Appellant and PFC EW were in two different armed services, were not in the
same unit, did not work or live on the same installations, and did not have any kind
of supervisor-subordinate relationship. We recognize that the regulation does not
require that both parties to a relationship be in the same unit or even the same
service to be prohibited. However, under the facts of this case, appellant and PFC
EW had no professional relationship whatsoever, which essentially eliminates the
possibility that their relationship could be coercive based upon their different ranks.

       We have no doubt that appellant knew PFC EW was a lower enlisted Marine
who had recently completed basic training. Similarly, we have no doubt that PFC
EW knew appellant was a senior enlisted soldier, given that she knew he had been in
the Army for sixteen years. However, the government presented no evidence this
difference in rank had any impact on the events of the evening. Private First Class

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COMMISSO — ARMY 20140205

EW testified that during their initial meeting, she found appellant to be caring and
reliable. She felt comfortable around him because he showed her pictures on his
phone of children he cared for and because he was “knowledgeable” about his job in
the Army. She willingly gave appellant her phone number because he “seemed like
a very innocent sweet guy” to whom she was attracted. The government simply
presented no evidence that PFC EW felt coerced by appellant’s rank or position in
the Army to give him her phone number or to go out to dinner with him.

       On appeal, the government places great emphasis on the fact that PFC EW felt
‘coerced” to stay at appellant’s apartment with him at the end of the evening.
However her testimony indicated any apparent “coercion” came from the fact that
appellant bought her an “expensive” dinner, tried to take her to a movie, and took
her on a motorcycle ride—not the fact that he was a senior enlisted soldier in the
Army.

       Likewise, the government failed to prove beyond a reasonable doubt that this
“relationship” had any adverse or clearly predictable adverse impact on discipline.
The fact that PFC EW was “disgusted” and felt “violated” by appellant’s actions
establishes that these actions were nonconsensual and thus cannot form a basis for
establishing a consensual “inappropriate relationship” between the two. See United
States v. Delgado, ARMY 20140927, 2016 CCA LEXIS 7 at *6-7 (Army Ct. Crim
App. 6 Jan. 2016) (mem. op.). In addition, while the fact that appellant sent a naked
photo of a lower enlisted Marine to another soldier may well have a clearly
predictable adverse impact on discipline, it has nothing to do with any “relationship”
between appellant and PFC EW. It was a unilateral action taken by appellant
without the consent or knowledge of PFC EW. Thus, appellant’s conduct cannot
form a basis to establish an “inappropriate relationship” prohibited by AR 600-20.

       Accordingly, appellant's conduct is legally and factually insufficient to
establish an inappropriate relationship under AR 600-20, para 4-14.b.

                                   CONCLUSION

      Upon consideration of the entire record, the findings of guilty of the
Specification of Charge III and Charge III and the Specification of Charge V and
Charge V are set aside and DISMISSED. The remaining findings of guilty are
AFFIRMED.

      Applying the principles of United States v. Sales, 22 M.J. 305, 308 (C.M.A.
1986) and the factors set forth in United States v. Winckelmann, 73 M.J. 11, 15-16
(C.A.A.F. 2013), we conclude that we can confidently reassess appellant’s sentence
without returning this case for a sentence rehearing.

     In evaluating the Winckelmann factors, our decision does not result in a
dramatic change in the penalty landscape despite the fact that appellant’s maximum

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exposure to confinement is reduced by seven years. Id. at 15-16. Appellant faced a
maximum sentence to confinement for 31 years, yet the panel sentenced him to only
one year. Even with the maximum confinement reduction as the result of our setting
aside and dismissing two charges and their specifications, his sentence to
confinement is still far below the maximum exposure. In addition, this court
reviews the records of a substantial number of courts-martial involving sexual
assault and we have extensive experience with the level of sentences imposed for
offenses similar to those committed by appellant. Id. at 16.

       Finally, the remaining offenses still capture the gravamen of appellant’s
criminal conduct. Id. Appellant remains convicted of viewing and photographing
PFC EW’s nipple, touching her breast, and sending a private photo of her to another
soldier, all without the consent of PFC EW. These actions are the crux of the case,
and based on the entire record and appellant's course of conduct we can conclude the
officer panel would have imposed a sentence of at least that which was adjudged.
Accordingly, we AFFIRM the sentence as adjudged. All rights, privileges, and
property, of which appellant has been deprived by virtue of that portion of the
findings set aside by this decision, are ordered restored.

      Judge HERRING and Judge BURTON concur.


                                      FOR THE COURT:




                                      MALCOLM H.
                                      MALCOLM     H. SQUIRES,
                                                     SQUIRES, JR.
                                                              JR.
                                      Clerk of Court
                                      Clerk of Court




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