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

                              No. 201600056
                          _________________________

                    UNITED STATES OF AMERICA
                             Appellee
                                         v.

                          CODY L. BANNISTER
                        Hospitalman (E-3), U.S. Navy
                                 Appellant
                          _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

   Military Judge: Lieutenant Colonel Keith A. Parrella, USMC.
     For Appellant: Commander Brian L. Mizer, JAGC, USN.
For Appellee: Captain Sean M. Monks, USMC; Lieutenant George R.
                        Lewis, JAGC, USN.
                      _________________________

                        Decided 12 September 2018
                         _________________________

  Before H UTCHISON , TANG, and H INES , 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.
                        _________________________

HUTCHISON, Senior Judge:

    A panel of officer and enlisted members sitting as a special court-martial
convicted the appellant, contrary to his pleas, of one specification of violating
a lawful general order, two specifications of abusive sexual contact, and one
specification of assault consummated by a battery in violation of Articles 92,
120, and 128, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892,
920, and 928 (2012). The members sentenced the appellant to 45 days’ re-
striction and a bad-conduct discharge. The convening authority (CA) ap-
proved the findings and the bad-conduct discharge, but disapproved the 45
days’ restriction. In a previous opinion, we set aside the CA’s action after
finding post-trial processing error. See United States v. Bannister, No.
201600056, 2016 CCA LEXIS 686 (N-M. Ct. Crim. App. 30 Nov 2016) (unpub.
op.). Following our remand, the CA once again approved the findings and
only the bad-conduct discharge.
    The appellant raises four assignments of error: (1) the evidence was fac-
tually insufficient to prove he committed abusive sexual contact; (2) a bad-
conduct discharge was an inappropriately severe sentence; (3) the military
judge erred in failing to instruct the members on their power to recommend
clemency after the members asked about alternatives to a bad-conduct
discharge; and (4) the Staff Judge Advocate erroneously advised the CA that
he could approve the sentence as adjudged and incorrectly served disqualified
counsel with the CA’s action.
   After careful consideration of the record of trial and the parties’ plead-
ings, we conclude the findings and sentence are correct in law and fact, and
that no error materially prejudiced the substantial rights of the appellant.
Arts. 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a) and 866(c).
                              I. BACKGROUND
   All the charges in this case stem from the appellant’s interactions with
Hospitalman Recruit EC while they were both students at Hospital Corps-
man “A” School in Fort Sam Houston, Texas. The government’s case-in-chief
consisted of EC’s testimony and a sworn statement the appellant made to a
Naval Criminal Investigative Service (NCIS) Special Agent.
    EC testified that she met the appellant at the beginning of April 2014
through a mutual friend. The appellant asked EC out on a date and she
declined. EC noticed a change in the way the appellant treated her after she
declined his invitation. She testified that the appellant began calling her
names like “slut” and “whore,” but soon his behavior escalated to inappropri-
ate touching. 1
    The first inappropriate touching occurred in late April 2014. While EC
was walking back to her barracks room from a student center, the appellant
came up behind EC and grabbed her right breast. EC told the appellant to
stop, but “he just gave a little . . . smirk . . . and then walked away.” 2 EC
testified that a similar incident occurred in early June 2014, while she was
walking on base with two of her friends. Her friends saw the appellant
approaching, told EC the appellant wanted to talk to her, and the two friends
walked away. EC testified that she tried to ignore the appellant, at which

   1   Record at 98.
   2   Id.


                                      2
point “he smacked [her] butt.” 3 EC further explained that the appellant did
not just hit her quickly, but rather he grabbed her buttocks and held his hand
there for a “long time.” 4 EC told the appellant that his actions were not funny
and to stop, but the appellant simply smirked. In his statement to NCIS the
appellant confirmed that on one occasion he did come up behind EC and grab
her in a “friendly manner” and “may have grabbed her breast” but if he did,
“it was accidental.” 5 He also acknowledged that there may have been other
times when he came up behind her and grabbed or touched her. The appel-
lant explained that he “was raised in a loving affectionate house and greet-
ings like that [were] normal to [him].” 6
    Next, EC testified that over Memorial Day weekend, she and some friends
stopped by the smoke pit on their way back to the barracks after a day of
liberty at a nearby river. EC saw the appellant and another student at the
smoke pit and went over to talk to them while her friends walked over to the
nearby dumpsters to discard trash from their trip. As she approached the
smoke pit, the appellant “slapped [EC’s] butt” and cupped both of her breasts
with his hands. 7 When EC confronted the appellant and asked him why he
was touching her, the appellant laughed and told EC that it was funny. The
appellant admitted to NCIS that he encountered EC and others near the
“garbage dump, trash area” where he “hit her butt[,]” and that he might have
grabbed her breast. 8 He acknowledged that he “may have taken the joke too
far” but thought they were just “playing around.” 9
     The next incident occurred in the schoolhouse’s computer lab. EC testified
that the appellant sat down next to her while she was studying. When she
told him she did not want to talk, the appellant put his hand on her thigh
and moved it towards her pelvic region. EC told the appellant to “knock it off”
and shifted in her seat to avoid the appellant. 10 The appellant then got up to
leave, but as he did, he walked behind EC’s chair, reached around her, and
“flicked [her] breast.” 11 The appellant conceded to NCIS that he may have put



   3   Id. at 103.
   4   Id.
   5   Prosecution Exhibit (PE) 2 at 1.
   6   Id.
   7   Record at 101.
   8   PE 2 at 2.
   9   Id.
   10   Record at 106.
   11   Id. at 107.


                                          3
his hand on her leg to get her attention so he could talk to her, but denied
that he was rubbing her leg “to sexually assault her.” 12
   Finally, EC testified that the appellant again grabbed her breast while
she was standing in an on-base café speaking with a classmate. She claimed
the appellant folded his arms, tucking his right hand under his left, and then
standing next to EC—”only about four to six inches away”—surreptitiously
reached out and touched her breast. 13 The appellant told NCIS that he
remembered encountering EC at the café and attempting to “flick her arm”
with his fingers to get her attention and that he might have hit her breast if
she “turned the wrong way.” 14
   In his defense, the appellant called four witnesses who each testified that
they never saw the appellant touch EC, despite being nearby on the various
occasions alleged by EC.
    The members convicted the appellant of one specification of abusive sexu-
al contact for touching EC’s breasts on divers occasions, one specification of
abusive sexual contact for touching EC’s buttocks on divers occasions, one
specification of assault consummated by battery for touching EC’s leg, and
one specification of violating the Secretary of the Navy’s Sexual Harassment
policy. 15
                                    II. DISCUSSION
A. Factual sufficiency
    The appellant contends that his convictions for abusive sexual contact are
factually insufficient because we cannot be convinced beyond a reasonable
doubt that he intended to abuse, humiliate, or degrade EC. Rather, the
appellant argues that the public nature of his conduct, and the failure of
eyewitnesses to recall the events, much less to intervene, all reflect the
appellant’s belief that he was engaged in “teenage horseplay” between “mu-
tually consenting participants[.]” 16
    We review questions of factual sufficiency de novo. Art 66(c), UCMJ; Unit-
ed States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The test for factual
sufficiency is whether “after weighing the evidence in the record of trial and


   12   PE 2 at 2.
   13   Record at 109.
   14   PE 2 at 2.
   15 Secretary of the Navy Instruction 5300.26D, “Department of the Navy (DON)
Policy on Sexual Harassment” (3 Jan 2006).
   16   Appellant’s Brief of 23 Aug 17 at 13.


                                            4
making allowances for not having personally observed the witnesses, [this
court is] convinced of appellant’s guilt beyond a reasonable doubt.” United
States v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017) (citation, internal quota-
tion marks, and emphasis omitted). In conducting this unique appellate
function, we take “a fresh, impartial look at the evidence,” applying “neither
a presumption 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.” Washington, 57 M.J. at
399. Proof beyond a reasonable doubt does not mean, however, that the
evidence must be free from conflict. United States v. Goode, 54 M.J. 836, 841
(N-M. Ct. Crim. App. 2001).
    Although the appellant does not challenge the legal sufficiency of the abu-
sive sexual contact convictions, we are mindful that Article 66(c), UCMJ,
requires this court “to conduct a de novo review of [both the] legal and factual
sufficiency of the case.” Washington, 57 M.J. at 399 (citation omitted). “The
test for legal sufficiency is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” United States
v. Robinson, 77 M.J. 294, 297-98, (C.A.A.F. 2018) (quoting Rosario, 76 M.J. at
117).
     To sustain the appellant’s convictions for abusive sexual contact, we must
be convinced beyond reasonable doubt that: (1) the appellant committed
sexual contact upon EC; and (2) that he did so by causing bodily harm to
EC. 17 Sexual contact is defined in pertinent part, as “touching . . . either
directly or through the clothing . . . the . . . breast . . . or buttocks of any
person, with an intent to abuse, humiliate, or degrade any person; or . . .
touching . . . any body part of any person, if done with an intent to arouse or
gratify the sexual desire of any person.” MANUAL FOR COURTS-MARTIAL
(MCM), UNITED STATES (2012 ed.), Part IV, ¶ 45.a.(g)(2). Bodily harm is
defined as “any offensive touching of another, however slight, including any
. . . nonconsensual sexual contact.” Id. at Part IV, ¶ 45.a.(g)(3). Since the
bodily harm alleged in each of the appellant’s abusive sexual contact specifi-
cations is the charged sexual contact, we must also be convinced beyond
reasonable doubt that EC did not consent to the appellant’s touching her
buttocks and breasts.


   17  See Article 120(d), UCMJ (“Any person subject to this chapter who commits or
causes sexual contact upon or by another person, if to do so would violate subsection
(b) (sexual assault) had the sexual contact been a sexual act, is guilty of abusive
sexual contact[.]”). Since the appellant’s convictions for abusive sexual contact each
alleged a “bodily harm” theory of liability, we incorporate the elements of Article
120(b)(1)(B), UCMJ.


                                          5
   The appellant admitted in his sworn statement to NCIS that he touched
EC’s buttocks and may have also touched her breasts. EC testified credibly
that that the appellant not only slapped and grabbed her buttocks, but also
grabbed, cupped, and flicked her breasts, often doing so covertly so that
others nearby could not see or would not notice. Regardless, on appeal, the
appellant does not now challenge the acts underlying the abusive sexual
contact specifications, but argues that the evidence is insufficient to prove
that he had the requisite criminal intent—to abuse, humiliate, or degrade.
Alternatively, he argues that the evidence is insufficient to prove that EC did
not consent to his touching. We disagree.
    First, the appellant’s intent may be proven by circumstantial evidence.
United States v. Kearns, 73 M.J. 177, 182 (C.A.A.F. 2014); United States v.
Vela, 71 M.J. 283, 286 (C.A.A.F. 2012). Here, the appellant repeatedly
touched EC’s breasts and buttocks—often times surreptitiously in public—
despite her demands that he stop and after she told him she did not find his
actions funny. This conduct evinces the appellant’s intent to harass, embar-
rass, and humiliate EC. That the appellant touched EC on her breasts and
buttocks—not her head, her arms, or any other non-erogenous zone—is
strong circumstantial evidence of his intent to abuse, humiliate, or degrade
her, especially with each subsequent contact after her initial objection.
   Second, as we noted above, the definition of sexual contact includes not
only touching certain body parts with the intent to abuse, humiliate or
degrade, but also touching any part of the body with the intent to arouse or
gratify sexual desires of any person. The appellant’s repeated touching of
EC’s buttocks and breasts only after she declined his invitation to go on a
date with him is also strong circumstantial evidence of sexual intent.
    Finally, we reject the appellant’s assertion that EC consented to him
touching her breasts and buttocks and that he honestly and reasonably
believed that she did consent. EC testified compellingly that she repeatedly
told the appellant to stop and resisted his advances. Indeed, the appellant’s
admission that EC was merely an acquaintance, “not a good friend,” and the
stealthy manner in which he touched her belie any notion that EC consented
or that the appellant had any reasonable belief that she did. 18
    Consequently, after carefully reviewing the record of trial and considering
all of the evidence in a light most favorable to the prosecution, we are con-
vinced that a reasonable factfinder could have found the appellant touched
EC’s breast and buttocks on divers occasions with the intent to abuse, humil-
iate or degrade EC, or to arouse or gratify his or her sexual desire. Further-
more, after weighing all the evidence in the record and making allowances for

   18   PE 2 at 2.


                                      6
not having personally observed the witnesses, we too are convinced beyond a
reasonable doubt of the appellant’s guilt.
B. Sentence appropriateness
    The appellant next avers that a bad-conduct discharge is an inappropri-
ately severe sentence for his crimes. We disagree.
    We review 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 pun-
ishment he deserves.” United States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988).
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.” United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (citation
and internal quotation marks omitted). In making this assessment, we
analyze the record as a whole. Healy, 26 M.J. at 395-97. Despite our signifi-
cant discretion in determining sentence appropriateness, we may not engage
in acts of clemency. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
    The appellant was convicted of two specifications of abusive sexual con-
tact for repeatedly touching EC’s breasts and buttocks, one specification of
assault consummated by battery for touching her leg, and one specification of
violating the Secretary of Navy instruction prohibiting sexual harassment.
Based on these offenses, the appellant faced the special court-martial juris-
dictional maximum punishment of confinement for 12 months, reduction to
the paygrade of E-1, forfeiture of two-thirds pay per month for 12 months,
and a bad-conduct discharge. The appellant’s approved sentence included
only the bad-conduct discharge.
    Having given individualized consideration to the nature and seriousness
of these crimes, the appellant’s short record of service, and all matters con-
tained in the record of trial, including matters submitted by the appellant in
extenuation and mitigation, and the victim’s testimony during sentencing, we
conclude the sentence as approved by the CA is not inappropriately severe
and is appropriate for this offender and his offenses. United States v. Baier,
60 M.J. 382, 384-85 (C.A.A.F. 2005); Healy, 26 M.J. at 395-96; Snelling, 14
M.J. at 268. Granting sentence relief at this point would be to engage in
clemency, which we decline to do. Healy, 26 M.J. at 395-96.
C. Instructions
   Citing United States v. Keith, 46 C.M.R. 59 (C.M.A. 1972), the appellant
contends that following a question from the members while they were delib-
erating on a sentence, the military judge erred in failing to instruct the
members that, in addition to awarding a sentence, they could recommend
clemency to the CA. Specifically, the members asked “Do we have an alter-


                                      7
nate option of [administrative separation] or [Other than Honorable] besides
the BCD listed?” 19 The following colloquy occurred between the military judge
and the parties:
         MJ: What’s the parties’ positions on this . . . question?
         TC: “No” seems to be the best answer, sir.
         DC: Yes, sir. Now I’m thinking, I’ve given administrative sepa-
         ration.
         MJ: All right. 20
The military judge recalled the members, and instructed them simply that,
“The answer is no.” 21 The trial defense counsel did not object.
    Since no objection was made to the instructions given to panel members,
we review the military judge’s instructions for plain error. RULE FOR COURTS-
MARTIAL (R.C.M.) 1005(f), MANUAL FOR COURTS-MARTIAL, UNITED STATES
(2012 ed.); United States v. Griffin, 25 M.J. 423, 425 (C.M.A. 1988). Under
plain error review, relief is granted only when “(1) there was error, (2) the
error was plain and obvious, and (3) the error materially prejudiced a sub-
stantial right of the accused.” United States v. Garner, 71 M.J. 430, 434
(C.A.A.F. 2013) (citation omitted).
    “[T]he military judge’s instructions to members must be adequate to allow
the court ‘intelligently to determine a punishment appropriate to the accused
before it.’” United States v. Perkinson, 16 M.J. 400, 401 (C.M.A. 1983) (quot-
ing United States v. Turner, 34 C.M.R. 215, 217 (C.M.A. 1964)). To that end,
“in a proper case it is error for the military judge to fail to disclose to the
court members their right to recommend clemency.” Id. (quoting Keith, 46
C.M.R. at 63). However, a military judge need not provide a clemency in-
struction when the facts of a case “do not sufficiently raise the possibility that
the members intended to recommend clemency.” Id. In Keith, the members
had numerous questions related to that appellant’s discharge. The members
consolidated those questions and asked, “If the court does not award a bad
conduct discharge who will determine what type of discharge he gets at some
later date and what observations are available?” Id. at 61. The military judge
instructed the members that they could not “adjudge or recommend or
consider the possibility of any type administrative discharge” and that if they
“decide[d] to adjudge any discharge in [the] court-martial it [could] only be a
bad conduct discharge.” Id. In an Article 39(a), UCMJ, session prior to in-


   19   Record at 348; Appellate Exhibit XXIII.
   20   Record at 348.
   21   Id. at 350.


                                           8
structing the members, the military judge declined to give an instruction on
clemency. The Court of Military Appeals (CMA) recognized that this was “not
an ordinary case” and concluded that the military judge “erred in failing to
inform the court of the conditions under which they could . . . recommend an
administrative discharge, disapproval of the adjudged punitive discharge or
suspension of the latter” after permitting counsel to discuss administrative
discharges at length during their arguments on sentencing. Id. at 64.
    The appellant argues that his case is similar to Keith. However, as the
CMA recognized, Keith was not the ordinary case. More recently, in Per-
kinson, our superior court clarified that the propriety of a clemency instruc-
tion must be determined on a case by case basis. In Perkinson, the military
judge declined to provide a clemency instruction after the members returned
the sentencing worksheet with the words “bad conduct discharge” stricken
and the words “general discharge as unsuitable for military service” replacing
them. Perkinson, 16 M.J. at 401-02. The CMA concluded that the “mere
attempt to award a general discharge, standing alone, was insufficient to
signal an intention on the part of the members to recommend clemency” and
consequently, the military judge did not err in declining to provide the
instruction. Id. at 402.
    In United States v. Epps, No. 201300423, 2014 CCA LEXIS 517 at *5 (N-
M. Ct. Crim. App. 29 Jul 2014) (unpub. op.), the members asked whether
Airman Epps would go to an administrative separation board if they did not
award a punitive discharge. Without objection from the trial defense counsel,
the military judge did not provide the clemency instruction. Applying Per-
kinson, we concluded that the members’ single question about what might
happen should they not award a punitive discharge, “did not trigger a re-
quirement to give the clemency instruction.” Id. at *6. The appellant’s case is
similar. Here, the members simply asked whether there was an “alternate
option.” 22 After being told, “no” the members indicated that their questions
were answered. 23 Like Epps, here the members’ single question about their
discharge options did not trigger a sua sponte requirement for the military
judge to instruct the members about recommending clemency. To be sure, the
members’ question here was far less indicative of a desire on their part to
recommend clemency than were the actions of the Perkinson members, who
went so far as trying to award an administrative discharge by writing it into
the sentencing worksheet. Yet, our superior court concluded such action “did
not sufficiently raise the possibility that the members intended to recommend
clemency.” Perkinson, 16 M.J. at 401. Because the appellant fails to show


   22   Record at 348.
   23   Id. at 350.


                                      9
that the members intended to recommend clemency, we find no plain or
obvious error in the military judge’s failure to provide the members with a
clemency instruction.
D. Post-trial
    Finally, the appellant argues that the CA’s Staff Judge Advocate provided
erroneous post-trial advice when she recommended that the CA approve the
sentence as adjudged, despite the fact that the CA had disapproved the 45
days’ restriction in her prior action. The appellant contends this error preju-
diced him because the CA “took the unusual step of meeting with trial de-
fense counsel to discuss clemency, and he may have erroneously believed
disapproving restriction was some measure of clemency.” 24 The appellant
further argues that he could have addressed this error directly with the CA,
but his counsel was never served with the CA’s action.
    Where there is error in post-trial processing and “some colorable showing
of possible prejudice” thereby, this court must either provide meaningful
relief or remand for new post-trial processing. United States v. Wheelus, 49
M.J. 283, 289 (C.A.A.F. 1998) (citation omitted); see also United States v.
Wilson, 54 M.J. 57, 59 (C.A.A.F. 2000).
    Even assuming that the Staff Judge Advocate’s advice was error, we find
no prejudice. First, the CA once again disapproved the 45 days’ restriction.
Second, the appellant’s claim of prejudice is purely speculative, and he
provides no evidence that the CA actually thought disapproving the re-
striction amounted to clemency. Rather, such an assertion is betrayed by the
record: the appellant submitted clemency matters and met with the CA—
asking that he order a new trial or disapprove the bad-conduct discharge—
after having already received the Staff Judge Advocate’s Recommendation
containing the putative error. Having found no colorable showing of possible
prejudice, we conclude the appellant’s assignment of error is without merit.
                                   III. CONCLUSION
   The findings and sentence as approved by the CA are affirmed.
   Judge TANG and Judge HINES concur.
                                   For the Court




                                   RODGER A. DREW, JR.
                                   Clerk of Court


   24   Appellant’s Brief at 22.


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