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

                                Before
            F.D. MITCHELL, J.A. FISCHER, K.M. MCDONALD
                       Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                         LEONICE JOSEPH
                  CORPORAL (E-4), U.S. MARINE CORPS

                            NMCCA 201300460
                        SPECIAL COURT-MARTIAL

Sentence Adjudged: 15 August 2013.
Military Judge: LtCol Eugene Robinson, Jr., USMC.
Convening Authority: Commanding Officer, 31st Marine
Expeditionary Unit, Okinawa, Japan.
Staff Judge Advocate's Recommendation: Maj A.T. Young,
USMC.
For Appellant: CAPT Tierney Carlos, JAGC, USN.
For Appellee: LT Ann Dingle, JAGC, USN.

                           19 February 2015

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                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

FISCHER, Senior Judge:

     A special court-martial consisting of officer members
convicted the appellant, contrary to her pleas, of violating a
lawful general order for wrongfully engaging in sexual activity
within her barracks room and making a false official statement
in violation of Articles 92 and 107, Uniform Code of Military
Justice, 10 U.S.C. §§ 892 and 907. The members sentenced the
appellant to be reduced to pay grade E-1, forfeiture of
$1,010.00 pay per month for 12 months, confinement for 12
months, and a bad-conduct discharge. The convening authority
(CA) approved only so much of the sentence as extended to 120
days’ confinement, the adjudged forfeitures and reduction, and a
bad-conduct discharge and, except for the bad-conduct discharge,
ordered it executed.

     The appellant raises seven assignments of error (AOE): (1)
the evidence is legally and factually insufficient; (2) the
military judge abused his discretion when he allowed testimony
of the appellant’s prior relationships; (3) the military judge
abused his discretion when he allowed trial counsel to ask a
witness why she admitted she had lied about being sexually
assaulted; (4) the military judge abused his discretion when
allowing improper testimony from an Naval Criminal Investigative
Service (NCIS) Agent; (5) the lawful general order of which she
was convicted was not a punitive order; (6) her sentence is
widely disparate from that received by the accused in a
companion case; and (7) her sentence is inappropriately severe. 1

     We specified the following two additional AOEs: (1) “By
excepting the language 'made . . . an official statement' from
the sole specification of Charge II, did the members find the
appellant not guilty of an element of the offense and then make
an illegal [or defective] finding of guilty that, left uncured
prior to announcement of findings, necessitated a finding of
‘not guilty’ on that offense?” and (2) “If the answer to the
first specified issue is in the affirmative, can the appellant’s
conviction as to Charge I and its sole specification be
affirmed?”

     After carefully considering the record of trial and the
parties’ pleadings, we conclude that the guilty findings to
Charge II and the sole specification thereunder were improper
because the members excepted an element of the offense from the
specification. After the corrective action set forth in our
decretal paragraph, we conclude the remaining findings and the
reassessed sentence are correct in law and fact and that no
error materially prejudicial to the substantial rights of the
appellant remains. Arts. 59(a) and 66(c), UCMJ.




1
  We find no merit to AOE III. United States v. Clifton, 35 M.J. 79, 81-82
(C.M.A. 1992). AOEs VI and VII are rendered moot by our actions on the
sentence.
                                      2
                                 Background

     On 7 December 2012, Corporal         (Cpl) WP engaged in sexual
intercourse with the appellant in         the appellant’s barracks room. 2
The appellant’s roommate, Private         First Class (PFC) RC,
testified that after she returned         to the room that evening she
observed the appellant and Cpl WP         come out of the bathroom
appearing to have just showered.          PFC RC further indicated both
were smiling and laughing. 3

     Afterwards, while the appellant was talking to her mother
on the phone, Cpl WP began engaging in sexual intercourse with
PFC RC. 4 The appellant discovered Cpl WP in bed with PFC RC and
became very angry. She tore off the bed covers, hit Cpl WP
several times, exclaimed “how can you do this to me,” and then
ordered him to leave the room. 5 PFC RC testified that the
appellant then confronted her and PFC RC denied engaging in
intercourse with Cpl WP because she feared the appellant’s
reaction.

     After discovering PFC RC and Cpl WP together, the appellant
left her room and spent the night in her friend, Cpl EM’s, room.
Cpl EM testified that the appellant was clearly upset and
confided that she caught Cpl WP having sex with her roommate
right after she had sex with him. Cpl EM also testified that
the appellant said she “was going to do anything to ruin [Cpl
WP’s] life.” 6

     PFC RC did not believe Cpl WP had sexually assaulted her.
However, her corporal, having heard about the incident,
convinced her to report it to NCIS as a sexual assault. 7 PFC RC
falsely told NCIS that Cpl WP raped her, but when NCIS agents
questioned her after further investigative efforts, PFC RC
admitted that her initial statement was a lie. 8 In the course of

2
    Record at 318-19, 437.
3
    Id. at 397.
4
    Id. at 398, 435-36.
5
    Id. at 400.
6
    Id. at 437
7
  PFC RC testified that her corporal told her that since she [PFC RC] had been
drinking prior Cpl WP engaging in sexual intercourse with her it was a sexual
assault. Id. at 405.
8
    Id. at 406.
                                      3
investigating PFC RC’s sexual assault allegation, NCIS agents
interviewed the appellant and she told the agents that Cpl WP
had forcibly raped her on the night of 7 December 2012. At
trial, the Government introduced evidence of Facebook messages
the appellant sent Cpl WP, stating that she was going to report
that he raped PFC RC and visit a medical facility herself. 9

     Additional facts necessary for the resolution of particular
assignments of error are included below.

                                   Discussion

We address the specified AOEs first.

Defective Finding of Guilty

     The members found the appellant guilty of Charge II, making
a false official statement; however, the members excepted the
following words from the Specification: “made to Naval Criminal
Investigative Service agents . . . an official statement to
wit.” In place of the excepted language the members substituted
the words, “provided an affirmative response to NCIS that she
had been raped by [Sgt MP].” 10 In taking this action, the
members excepted an element of the offense from the modified
specification, namely that the appellant made an “official
statement.”

     It has been well-established that “[a]n exception by the
court of part of a specification constitutes a finding that the
accused is not guilty of what is alleged in the excepted
language.” United States v. Nedeau, 23 C.M.R. 182, 184 (C.M.A.
1957). “A Court of Criminal Appeals cannot find as fact any
allegation in a specification for which the fact-finder below
has found the accused not guilty.” United States v. Walters, 58
M.J. 391, 395 (C.A.A.F. 2003) (citations omitted). A finding of
guilty to the overall charge, but not guilty to one of the
elements of the charge through exceptions and substitutions,
amounts to a finding of not guilty. See United States v. Perez,
40 M.J. 373, 375-77 (C.M.A. 1994) (where members originally
found guilt to charge of conspiracy but not to the overt act,
the result was an illegal or defective verdict).



9
     Prosecution Exhibit 3.
10
  Record at 556-57.     Cpl MP had been promoted to Sergeant by the time of
trial.
                                         4
      In such a circumstance, before findings are announced, the
military judge should inform members that their finding of
“guilty” to a charge but “not guilty” to one of its elements
amounts to a finding of “not guilty” and either (1) instruct
them that any member may propose reconsideration of that finding
or (2) direct the members to reconsider in accordance with RULE
FOR COURTS-MARTIAL 924(b), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012
ed.). Id. at 377. In this case the military judge never
attempted to remedy the issue.

     Thus, we conclude that the sole specification of Charge II
must be set aside and dismissed because the members rendered an
illegal or defective verdict that was not corrected before
findings were announced.

Military Judge’s Instruction

      Since we set aside the sole specification of Charge II, we
also address the military judge’s instruction to the members
that, “[a]s a matter of law, the accused may not be found guilty
of Charge I, as drafted, if you find her not guilty of Charge
II.” 11

     Military judges have “substantial discretionary power in
deciding on the instructions to give.” United States v.
Damatta-Olivera, 37 M.J. 474, 478 (C.M.A. 1993) (citations
omitted). We review a military judge’s decision to give or not
give a specific instruction, as well as the substance of any
instructions given, “‘to determine if they sufficiently cover
the issues in the case and focus on the facts presented by the
evidence. The question of whether a jury was properly
instructed [is] a question of law, and thus, review is de
novo.’” United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F.
2002) (quoting United States v. Maxwell, 45 M.J. 406, 424
(C.A.A.F. 1996)).

     We hold the military judge’s instruction was improper and
not binding on us. In effect the members found the appellant
violated the lawful general order by wrongfully engaging in
sexual activity with Cpl WP in her barracks room, but found her
false response to NCIS agents’ questions about being raped was
not official. As such, we find the appellant was properly
convicted of Charge I and its sole Specification despite our
decision to set aside the appellant’s conviction to Charge II.


11
     Id. at 511.
                                    5
Legal and Factual Sufficiency

     The appellant avers that her guilty findings are legally
and factually insufficient. 12

     The test for legal sufficiency is whether, considering the
evidence in the light most favorable to the Government, any
rational trier of fact could have found the elements of the
offense beyond a reasonable doubt. United States v. Turner, 25
M.J. 324, 325 (C.M.A. 1987); United States v. Reed, 51 M.J. 559,
561-62 (N.M.Crim.Ct.App. 1999), aff'd, 54 M.J. 37 (C.A.A.F.
2000); see also Art. 66(c), UCMJ. The test for factual
sufficiency is whether, after weighing all the evidence in the
record of trial and recognizing that we did not see or hear the
witnesses, this court is convinced of the appellant's guilt
beyond a reasonable doubt. Turner, 25 M.J. at 325; see also
Art. 66(c), UCMJ. Proof beyond a reasonable doubt does not mean
that the evidence must be free of conflict. United States v.
Goode, 54 M.J. 836, 841 (N.M.Ct.Crim.App. 2001).

     Here, the Government presented ample evidence that the
appellant violated a lawful general order by wrongfully engaging
in sexual activity in her barracks room. After carefully
reviewing the record of trial and considering the evidence in
the light most favorable to the prosecution, we are convinced
that a reasonable fact finder could have found all the essential
elements beyond a reasonable doubt. Furthermore, after weighing
all the evidence in the record of trial and having made
allowances for not having personally observed the witnesses, we
are convinced beyond a reasonable doubt of the appellant's
guilt.

Lawful General Order

     The appellant also asserts that the lawful general order of
which she was convicted was not a punitive order.

     We review a military judge’s rulings on the lawfulness of a
charged order de novo. United States v. Deisher, 61 M.J. 313,
317 (C.A.A.F. 2005). “[N]o single characteristic of a general
order determines whether it applies punitively.” United States
v. Jackson, 61 M.J. 731, 734 (N.M.Ct.Crim.App. 2005) (quoting
United States v. Nardell, 45 C.M.R. 101, 103 (C.M.A. 1972))
(additional citation omitted).

12
  We consider the remaining AOEs only as they relate to the Article 92, UCMJ,
conviction.
                                      6
     To be punitive, “[t]he order in its entirety must
demonstrate that rather than providing general guidelines for
the conduct of military functions it is basically intended to
regulate conduct of individual members and that its direct
application of sanctions for its violation is self-evident.”
Nardell, 45 C.M.R. at 103 (citations omitted). “If the order
requires implementation by subordinate commanders to give it
effect as a code of conduct, it will not qualify as a general
order for the purpose of an Article 92 prosecution.” Id.
(citations omitted).

     The overall purpose of Marine Corps Bases Japan Order
(MCOBJO) 11000.2C, (01 Dec 2010) (hereinafter “the Order”) was
to “provide instructions, rules, information, and requirements
for the . . . use . . . of military bachelor housing facilities
at Marine Corps activities in Japan.” 13 The Commander enacted
the policies contained therein as a tool to help sustain the
discipline of unaccompanied Marines living in barracks. 14 The
Order states that commanding officers must “[e]nsure that the
provisions of this Order are widely publicized and that newly
joined personnel are fully briefed on the responsibilities,
prohibitions and restrictions contained” therein. 15 Finally, the
Order was applicable to all Marine Corps Base Japan, III Marine
Expeditionary Force, and tenant commands. 16 This Order was
punitive in nature, as it was intended to regulate the conduct
of service members living in barracks and was specifically
implemented for the purpose of discipline.

     The Government charged the appellant with failing to obey
MCOBJO 11000.2C, Enclosure (1), Chapter 2, ¶ 3(d)(2), which
states in pertinent part: “Sexual activity between persons not
married to each other is strictly prohibited in BQs.”
“Commanding Officers are responsible for enforcing all
visitation regulations for E-5 and below.” 17

     The Order is clear that sexual activity among unmarried
service members in barracks is prohibited and makes commanding
officers responsible for enforcing violations of the Order.

13
     MCOBJO 11000.2C at ¶ 1
14
     Id. at ¶ 4.a(1).
15
     Id. at ¶ 4.b(7).
16
     Id. at ¶ 6.a.
17
     Id., Enclosure (1), Chapter 2, at ¶ 3(d)(7).


                                         7
In this case, at the time of the charged order violation, the
appellant was below the pay grade of E-5. She was stationed
onboard Marine Corps Base Japan, and the Government put on
evidence that she engaged in sexual activity in her barracks
room. The appellant was not married to Cpl WP at the time.
Therefore, the Order is punitive in nature and was enforceable
against the appellant.

Evidence of Prior Acts

     The appellant also avers that the military judge abused his
discretion by allowing testimony regarding two of her prior
relationships.

     During the Government’s direct examination of Cpl WP, the
trial counsel asked him clarifying questions regarding a man
named Kyle who the appellant referenced in Facebook messages she
sent to him. 18 The trial defense counsel objected on grounds of
relevance, lack of notice, and MILITARY RULES OF EVIDENCE 403 and
404(b), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). 19 The
trial counsel responded that these references went toward
clarifying the context of the appellant’s Facebook messages to
Cpl WP, the appellant’s mindset, her understanding of her
conduct, and her intention to retaliate against Cpl WP. 20 The
military judge found that the Government provided the defense
notice under MIL. R. EVID. 304 of the Government’s intent to
present this evidence. 21 The military judge then overruled the
defense’s objection without further explanation.

     The appellant compared Cpl WP to “Kyle” in one of the
messages. 22 Cpl WP testified that the appellant dated and
“hook[ed] up with” Kyle and then he was unfaithful to the
appellant. 23 Cpl WP understood this comparison to mean that,
since Kyle’s unfaithfulness “hit her pretty hard” and hurt her
feelings, his sleeping with her roommate did as well. 24
18
     Record at 333.
19
     Id. at 333-34
20
     Id. at 334.
21
     Id. at 336.
22
     PE 3 at 1.
23
     Record at 333, 337.
24
     Id. at 338.


                                 8
     Cpl WP also testified about “Carlos,” the appellant’s
former fiancé who cheated on her with another female Marine and
was also mentioned in a Facebook message sent by the appellant. 25
In one of the Facebook messages to Cpl WP, the appellant stated,
“[i]f you think what I did to Carlos was bad, you have no
f***ing idea! SSgt [T] will be notified (it’s my duty).” 26 Cpl
WP testified that the appellant had told him that, once she
found out “Carlos” had been unfaithful to her, she took all of
the “stuff that he - - that she gave him and just like bleached
it, like sprayed it with bleach or whatever.” 27 The appellant’s
reference to what she did to “Carlos” made Cpl WP believe that
she would also enact revenge against him for his actions with
PFC RC. 28

      We review a military judge’s decision to admit evidence for
an abuse of discretion. United States v. Ediger, 68 M.J. 243,
248 (C.A.A.F. 2010). Evidence of uncharged misconduct is not
admissible to prove the character of an accused or show that the
accused acted in conformity with a certain character trait. MIL.
R. EVID. 404(b). But evidence of an appellant’s other acts may
be “admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” Id.

      The three-part test for admitting evidence under MIL. R.
EVID. 404(b) is set forth in United States v. Reynolds, 29 M.J.
105, 109 (C.M.A. 1989). See United States v. Thompson, 63 M.J.
228, 230 (C.A.A.F. 2006). First, the evidence must reasonably
support a finding that the appellant committed prior crimes,
wrongs, or acts. Reynolds, 29 M.J. at 109. Second, the
evidence must show a fact of consequence is made more or less
probable by the existence of this evidence. Id.; MIL. R. EVID.
401. Third, the probative value of the evidence cannot be
“substantially outweighed by the danger of unfair prejudice[.]”
Reynolds, 29 M.J. at 109 (quoting MIL. R. EVID. 403) (additional
citation omitted). When a military judge fails to articulate a
balancing test on the record, their decision to admit evidence
will receive less deference. United States v. Stephens, 67 M.J.
233, 235 (C.A.A.F. 2009).


25
     Id. at 339.
26
     PE 3 at 2.
27
     Record at 339.
28
     Id. at 340.
                                9
     First, the evidence admitted by trial counsel regarding the
prior relationships mentioned by the appellant in her Facebook
messages to Cpl WP support a finding that the appellant
committed the acts. The evidence presented showed she was in
two other relationships that ended with her partner’s
unfaithfulness. Her messages to Cpl WP compare him to men she
believed had wronged her in the past. This comparison
buttresses the Government’s theory that she voluntarily engaged
in sexual activity with Cpl WP because she compared him to
others with whom she had consensual relationships. In one of
her prior relationships, she took retribution against her
unfaithful partner and implied to Cpl WP that she was going to
do something more severe to him, thus providing evidence of her
motive.

     Second, the evidence presented on the appellant’s prior
relationships was highly relevant in proving that the appellant
engaged in consensual sexual activity with Cpl WP in her
barracks room on the night in question.

     Third, the probative value of this evidence outweighs the
danger of unfair prejudice. Here, the appellant’s intent was
key. To meet its burden on the charges, the Government had to
prove beyond a reasonable doubt that the appellant engaged in
consensual sex with Cpl WP in her barracks room and that she
subsequently lied to NCIS that the interaction was rape. The
appellant’s comparison of Cpl WP to other consensual sexual
partners and her threat to take revenge upon him that was more
severe than what she had done to another in the past help
establish required elements of her charges.

     The appellant argues that the Government violated the
spirit of MIL. R. EVID. 412 by entering evidence of her prior
relationships. However, the Government offered only so much
clarifying information as was necessary to provide context to
the appellant’s messages to Cpl WP and to show her intent and
motive on the date of their sexual activity.

      We find that this evidence was properly admitted under MIL.
R. EVID. 404(b).

NCIS Special Agent (SA) M’s Testimony

     The appellant next argues that the military judge abused
his discretion when he allowed NCIS SA M to testify that (1) he
“threw out” the appellant and PFC RC’s interviews regarding
their rape allegations against Cpl WP; (2) he interviewed PFC RC

                                10
a second time to “truly determine” whether her sexual encounter
with Cpl WP was consensual; (3) Cpl WP told him that his sexual
encounters with the appellant and PFC RC were both consensual;
and (4) he concluded the “math wasn’t really adding up regarding
the [rape] allegations.” 29

      We review a military judge’s decision to admit evidence for
an abuse of discretion. United States v. Kasper, 58 M.J. 314,
318 (C.A.A.F. 2003). However, where an appellant did not
preserve the issue by making a specific and timely objection,
that error will be forfeited in the absence of plain error.
United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014); MIL. R.
EVID. 103(d). Plain error is established if: (1) there was
error; (2) the error was clear or obvious; and (3) the error was
materially prejudicial to the appellant’s substantial rights.
Knapp, 73 M.J. at 36.

     Assuming without deciding that the military judge plainly
erred in permitting SA M’s testimony, we find no material
prejudice to the appellant. To evaluate “whether erroneous
admission of Government evidence is harmless, this court uses a
four-part test, weighing: (1) the strength of the Government’s
case, (2) the strength of the defense case, (3) the materiality
of the evidence in question, and (4) the quality of the evidence
in question.” United States v. Berry, 61 M.J. 91, 98 (C.A.A.F.
2005) (citations omitted).

     Aside from SA M’s testimony, the Government presented a
strong case through the testimony of PFC RC, Cpl WP, and Cpl EM
as well as the appellant’s multiple admissions indicating that
her sexual activity with Cpl WP on the night in question was
consensual. The defense rested on the Government’s burden and
the presumption of innocence, electing not to present evidence
at trial. While the evidence provided by SA M was material, PFC
RC and Cpl WP already provided substantially similar information
on the points relating to them. Moreover, his additional
testimony was elicited in the context of his investigative
actions and we are confident it did not unduly influence the
members. Under the circumstances of this case and given our
setting aside the appellant’s conviction for false official
statement and the extensive evidence indicating the appellant’s
guilt on the remaining charge as stated supra, we find any error
related to admission of SA M’s testimony to be harmless.




29
     Record at 478.
                               11
                      Sentence Reassessment

     Having dismissed the sole specification of Charge II, we
must also determine whether we are able to reassess the sentence
in accordance with the principles set forth in United States v.
Cook, 48 M.J. 434, 438 (C.A.A.F. 1998). “A ‘dramatic change in
the penalty landscape’ gravitates away from the ability to
reassess” a sentence. United States v. Buber, 62 M.J. 476, 479
(C.A.A.F. 2006) (quoting United States v. Riley, 58 M.J. 305,
312 (C.A.A.F. 2003)). “However, on occasions where [this] court
is convinced that the accused's sentence would have been at
least of a certain magnitude, even if no error had occurred at
trial, the court may remedy the error by reassessing the
sentence itself or by deciding that the error was not
prejudicial.” Cook, 48 M.J. at 438.

     Here, the penalty landscape stayed substantially the same
because the appellant still faced the special court-martial
maximum punishment.

                           Conclusion

     The findings of guilty to Charge II and the sole
specification thereunder are set aside and that Charge and
specification are dismissed with prejudice. The remaining
guilty findings are affirmed. Upon reassessment, we affirm a
sentence of 30 days’ confinement, forfeiture of $1,010.00 pay
for one month, and reduction in rate to pay grade E-3. We
conclude that such a sentence is no greater than that which
would have been awarded by the members for the charge and
specification that we affirm and is appropriate under the
circumstances of this case.

     Chief Judge MITCHELL and Judge MCDONALD concur.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




                               12
