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

                               Before
          J.R. MCFARLANE, K.M. MCDONALD, M.C. HOLIFIELD
                      Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                       QUANTAUS R. RIGGINS
              STAFF SERGEANT (E-6), U.S. MARINE CORPS

                           NMCCA 201400046
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 26 September 2013.
Military Judge: LtCol Christopher M. Greer, USMC.
Convening Authority: Commanding General, 2d Marine
Logistics Group, Camp Lejeune, NC.
Staff Judge Advocate's Recommendation: Maj B.T. Ackison,
USMC.
For Appellant: Jeffery S. Stephens, Esq.; Maj Jason
Wareham, USMC.
For Appellee: Maj Paul M. Ervasti, USMC; LCDR Keith B.
Lofland, JAGC, USN.

                           26 November 2014

     ---------------------------------------------------
                     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.

MCDONALD, Judge:

     A military judge, sitting as a general court-martial,
convicted the appellant, pursuant to his pleas, of one
specification each of violating a lawful general order
(fraternization), making a false official statement, and
adultery, in violation of Articles 92, 107, and 134, Uniform
Code of Military Justice, 10 U.S.C. §§ 892, 907, and 934. The
appellant was convicted, contrary to his pleas, of one
specification of violating a lawful general order (sexual
harassment), five specifications of assault consummated by a
battery, 1 and one specification of communicating indecent
language, in violation of Articles 92, 128, and 134, UCMJ, 10
U.S.C. §§ 892, 928, and 934. The military judge sentenced the
appellant to three years’ confinement, reduction to pay grade E-
1, and a bad-conduct discharge. The convening authority (CA)
approved the sentence as adjudged.
     The appellant raises five assignments of error:
     (1) the appellant’s guilty plea to violating Article
     1165, U.S. Navy Regulations (Charge I, Specification
     2) was improvident where the regulation did not
     prohibit personal relationships between enlisted
     members;
     (2) the evidence is legally and factually insufficient
     to support findings of guilt to the offenses of
     communicating indecent language (Charge IV,
     Specification 2) and assault consummated by a battery
     (Additional Charge, Specifications 1,2, and 4-6);
     (3) the military judge erred when he found that
     assault consummated by a battery was a lesser included
     offense of abusive sexual contact and sexual assault
     as charged in the Additional Charge;
     (4) the military judge erred when he failed to dismiss
     seven other specifications as an unreasonable
     multiplication of charges with the charge of
     fraternization; and,
     (5) the appellant’s sentence was inappropriately
     severe for this offender and his offense.
     After careful consideration of the record of trial, the
appellant's assignments of error, the parties’ pleadings, and
oral argument, we conclude that the findings and the sentence
are correct in law and fact and that no error materially
prejudicial to the substantial rights of the appellant was
committed. Arts. 59(a) and 66(c), UCMJ.

1
  Under the Additional Charge, the appellant pled not guilty to four
specifications of abusive sexual contact and two specifications of sexual
assault, in violation of Article 120, UCMJ, 10 U.S.C. § 920 (2012). He was
convicted on Specifications 1, 2, and 4-6 of the lesser included offense of
assault consummated by a battery. The military judge acquitted the appellant
of Specification 3 of the Additional Charge.
                                     2
                       Factual Background

     The appellant, a married Staff Sergeant, knew Lance
Corporal (LCpl) MS because they were originally assigned to the
same support unit. As a staff noncommissioned officer (SNCO) in
the unit, the appellant had direct supervisory authority over
LCpl MS. In this capacity, the appellant assisted LCpl MS with
processing some medical paperwork and became aware that she had
violated a physician’s order to refrain from consuming alcohol.
On 1 March 2013, the appellant was relieved of his supervisory
duties at the unit to allow him to prepare for a one-year
deployment assignment. However, as an SNCO, the appellant
remained in a position to issue orders to the Marines in the
unit and continued to visit members of the unit.
     On one such occasion, the appellant approached LCpl MS, who
was in uniform, from behind, made a humping motion against her
and said, “Oh, I just jizzed (sic) on myself.” Record at 199.
On other visits, the appellant asked about LCpl MS’s sex life
and requested sexual favors for assisting her with her medical
paperwork and for keeping her from getting in trouble for
drinking alcohol against her physician’s orders. LCpl MS
testified that these actions and comments made her very
uncomfortable, especially because the appellant was senior in
rank to her, and thus remained in a position where he had
authority over her.
     On 20 March 2013, the appellant again returned to his
former unit and told the Marines he was going to send LCpl MS to
get donuts for the unit. The appellant told LCpl MS he would
meet her at Dunkin’ Donuts. LCpl MS testified that she was
hesitant to get the donuts, but the appellant insisted their
trip to Dunkin’ Donuts would be short. At trial, LCpl MS
testified that because the appellant was of a higher rank and
one of her SNCOs, she did not believe she could refuse. LCpl MS
drove separately and the appellant followed. Once at Dunkin’
Donuts, the appellant told LCpl MS to get in his truck and again
asked her for sexual favors. Just prior to exiting her vehicle
to get into the appellant’s vehicle, LCpl MS turned on the voice
recorder function of her cell phone to capture any more
inappropriate comments or actions by the appellant. Id. at 204.
At trial, the Government admitted the recording and
transcription of the dialogue that took place between LCpl MS
and the appellant that day.




                                3
     LCpl MS testified that she was upset and scared because she
was worried the appellant could still get her in trouble 2 or
compromise the routing of her medical paperwork. After some
discussion, LCpl MS eventually agreed to go for a drive with the
appellant in his truck. LCpl MS got into the appellant’s truck,
but told him again that she did not want to have sex with him or
perform any sexual favors. The appellant then drove LCpl MS to
his on-base residence, pulled into his garage, and closed the
garage door. LCpl MS testified that she was unfamiliar with her
surroundings and had no confidence in her physical ability to
run away at that time.
     While his truck was parked in the garage, the appellant
made a number of sexual advances towards LCpl MS. Throughout
the encounter, LCpl MS referred to the appellant as “staff
sergeant” and was heard crying and telling him “no” - that she
did not want to have sex with him. The appellant persisted and,
at one point, LCpl MS flashed her breast hoping it would make
the appellant stop, but he instead leaned over and put his mouth
on her nipple. LCpl MS said “no”, pushed him off, and pulled
her bra and shirt back down. Record at 210-11. At trial, LCpl
MS explained that at this point, she felt like the appellant
would not let her leave until “something to his favor was going
to happen.” Id. at 213.
     Next, LCpl MS got out of the truck and followed the
appellant into his house. The appellant told LCpl MS to sit on
the couch and stood over her. He pulled his pants down and
placed LCpl MS’s hand on his penis and told her to rub it. The
appellant tried to put his hand down LCpl MS’s pants, but she
again said “no” and pushed him off. Id. at 216. The appellant
then put his hand down the front of LCpl MS’s pants and
digitally penetrated her vagina. He then told LCpl MS to pull
her shirt up and placed his penis in between her breasts, then
pulled her pants down and unsuccessfully tried to insert his
penis into her vagina. The appellant next pulled LCpl MS’s
underwear and pants the rest of the way down to her boots,
pulled her legs over his head, and inserted his penis into her
vagina. LCpl MS said that she did not resist further because
the appellant had not taken “no” for an answer.
     Prior to deliberating on findings, the military judge
requested counsel’s respective positions on whether he could
consider lesser included offenses (LIOs) under the Article 120
2
  In January 2013, LCpl MS posted a picture of herself taking a shot of
alcohol on Facebook and was told by members of her command that she was going
to receive nonjudicial punishment for drinking alcohol against her doctor’s
orders. Record at 206-07.
                                      4
charges. Specifically, the military judge asked counsel to
consider whether he could consider assault consummated by a
battery as an LIO of both sexual assault and abusive sexual
contact. Notwithstanding a defense objection, the military
judge found that assault consummated by a battery was an LIO of
both of these offenses and found the appellant guilty of the
lesser included offense of assault consummated by a battery for
Specifications 1, 2, 4, 5 and 6 of the Additional Charge.
                           Improvident Plea
     A military judge’s acceptance of a guilty plea is reviewed
for an abuse of discretion. United States v. Inabinette, 66
M.J. 320, 322 (C.A.A.F. 2008). A military judge abuses his
discretion in accepting a guilty plea where there is a
substantial basis in law or fact for questioning the plea. Id.
Questions of law arising from a guilty plea are reviewed de
novo. Id. Whether a plea is provident depends on an
appellant’s understanding of the elements of his crime as
explained to him by the military judge. United States v. Craig,
67 M.J. 742, 744 (N.M.Ct.Crim.App. 2009), aff’d, 68 M.J. 399
(C.A.A.F. 2010) (per curiam). If the explanation is inaccurate
or incomplete, we must then look to the entire record to
determine whether “the accused knew the elements, admitted them
freely, and pleaded guilty because he was guilty.” United
States v. Jones, 34 M.J. 270, 272 (C.M.A. 1992) (citation
omitted). Our focus in this later inquiry is on the appellant’s
awareness of the facts and law rather than on the military
judge’s “technical listing of the elements.” United States v.
Redlinski, 58 M.J. 117, 119 (C.A.A.F. 2003).
     The elements of a lawful general order violation are:
     (1) that there was in effect a certain lawful general
     order or regulation;
     (2) that the appellant had a duty to obey it; and,
     (3) that the appellant violated or failed to obey the
     order or regulation.
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), Part IV, ¶
16b(1).
     The appellant initially pled guilty to two violations of
Article 92, UCMJ: a violation of Paragraph 4(a), Marine Corps
Order 1000.9A for wrongfully sexually harassing LCpl MS; and a
violation of Article 1165, U.S. Navy Regulations prohibiting
fraternization between enlisted members. The military judge

                                   5
accepted the appellant’s guilty plea to violating Article 1165,
but did not find the appellant’s plea provident to violating
Marine Corps Order 1000.9A and entered a not guilty plea on his
behalf but later found him guilty of the offense after trial on
the merits. On appeal, the appellant argues that the military
judge erred in accepting the appellant’s guilty plea to a
violation of Article 1165 because Article 1165 does not prohibit
unduly familiar relationships between enlisted members.
Contrary to the appellant’s argument, Article 1165 does indeed
prohibit such relationships.
          When prejudicial to good order and discipline or
     of a nature to bring discredit on the naval service,
     personal relationships between officer members or
     between enlisted members that are unduly familiar and
     that do not respect differences in grade or rank are
     prohibited. Prejudice to good order and discipline or
     discredit to the naval service may result from, but
     are not limited to, circumstances which: –
          a.     call into question a senior’s objectivity;
          b.     result in actual or apparent preferential
                 treatment;
          c.     undermine the authority of a senior; or
          d.     compromise the chain of command.

Article 1165, U.S. Navy Regulations, dated 14 Sep 1990 (emphasis
added).
     The military judge engaged in an in-depth discussion of
Article 92, UCMJ, and Article 1165, U.S. Navy Regulations with
the appellant. The discussion began broadly with a listing and
explanation of the elements of Article 92, UCMJ, and then
focused on the appellant’s understanding of Article 1165, his
duty to obey it, and a breakdown of the actions the appellant
believed proved his guilt. Accordingly, we find no basis in law
or fact to question the appellant’s plea to Specification 2 of
Charge I.
               Conviction on a Lesser Included Offense

     The appellant claims that the military judge erred in
finding that assault consummated by a battery is an LIO of both
abusive sexual contact and sexual assault. More specifically,
the appellant asserts that assault consummated by a battery is
not an LIO of those offenses because assault consummated by a
battery contains a lack of consent element that the charged
Article 120 offenses do not, thus failing the elements test.

                                  6
Having carefully considered the appellant’s arguments and the
holdings of our sister courts, who have addressed similar
arguments made with respect to older versions of Article 120, 3 we
find this assignment of error to be without merit.
     Whether an offense is an LIO of another is a question of
law we review de novo. United States v. Miller, 67 M.J. 385,
387 (C.A.A.F. 2009).
     “An accused may be found guilty of an offense necessarily
included in the offense charged. . .”, so long as the elements
test is met. Art. 79, UCMJ.
       Under the elements test, one compares the elements of
       each offense. If all of the elements of offense X
       are also elements of offense Y, then X is an LIO of
       Y. Offense Y is called the greater offense because
       it contains all of the elements of offense X along
       with one or more additional elements.
United States v. Jones, 68 M.J. 465, 470 (C.A.A.F. 2010). The
elements test does not require that the greater offense and the
alleged LIO employ identical statutory language, United States
v. Alston, 69 M.J. 214, 216 (C.A.A.F. 2010), but merely that the
LIO is a “subset” of the greater offense, United States v.
Bonner, 70 M.J. 1, 3 (C.A.A.F. 2011), and therefore “one cannot
prove the greater offense without proving the lesser, United
States v. Neblock, 45 M.J. 191, 201 (C.A.A.F. 1996) (Cox, C.J.,
concurring in part and in the result) (emphasis added).”.

3
   We are aware of the debate among our sister courts with regard to LIOs in
Article 120 offenses. See e.g., United States v. Wagner, No. 20111064, 2013
CCA LEXIS 573, unpublished op. (Army Ct.Crim.App. 29 Jul 2013) (holding that
assault consummated by a battery and wrongful sexual contact are LIOs of
aggravated sexual assault because “consent” and “permission” as used in the
statutory language of Article 120 are synonymous and any grammatical
difference is “not one of substantive import”), aff’d, 2014 CAAF LEXIS 816
(C.A.A.F. Aug. 4, 2014); United States v. Johanson, 71 M.J. 688, 693
(C.G.Ct.Crim.App. 2012) (holding that assault consummated by a battery and
wrongful sexual contact are LIOs of abusive sexual contact charged under a
“substantially incapable” theory because “a lack of consent is inherent in
substantial incapability of declining participation. . . Assault consummated
by a battery is also included”); United States v. Pitman, __ M.J. __, 2011
CCA LEXIS 93 at *11 (A.F.Ct.Crim.App. 19 May 2011) (holding that wrongful
sexual contact is an LIO of aggravated sexual assault because “an allegation
that a victim is compelled to submit to sexual acts by force clearly includes
as a subset that the victim is not consenting”); cf. United States v. Barlow,
__ M.J. __, 2014 CCA LEXIS 166 (A.F.Ct.Crim.App. 13 Mar 2014) (holding that
wrongful sexual contact is not an LIO of abusive sexual contact because
wrongful sexual contact requires proof of an element (i.e., “without
permission”) that abusive sexual contact does not), review denied, __ M.J.
__, 2014 CAAF LEXIS 1055 (C.A.A.F. Oct. 31, 2014).
                                      7
     In addition to satisfying the elements test, we must also
find that the appellant was on notice that Article 128 was an
LIO of Article 120 as charged. Therefore, our analysis will
begin with an application of the elements test, followed by a
discussion of the factors this court applied in determining
whether the appellant had sufficient notice to defend against
the LIO, thereby satisfying any due process concerns.

     a. Sexual Assault

    Under Article 120(b)(1), UCMJ, a person commits sexual
assault by: (1) committing a sexual act upon another person; and
does so by (2) threatening or placing that other person in fear
or by causing bodily harm to that other person. Under Article
128, UCMJ, a person commits assault consummated by a battery if
he: (1) did bodily harm to a certain person; and, (2) the bodily
harm was done with unlawful force or violence. Art. 128, UCMJ.

     We begin by comparing the elements of sexual assault and
assault consummated by a battery. First, sexual assault and
assault consummated by a battery both include as an element the
touching of another person. Under sexual assault the touching
must be a sexual act, whereas under assault consummated by a
battery the touching need only be offensive. MCM, Part IV ¶¶
45(b)(1) and 54 (c)(1)(a) respectively. Second, both offenses
require the touching to be intentional. Finally, both statutes
require that the victim either did not or could not consent to
the touching. In the context of sexual assault, “a person
cannot consent while under threat or fear. . . .” Id. at ¶45
(g)(8)(B). In the context of assault consummated by a battery,
the Government must prove “that no legally cognizable reason
[such as consent] existed that would excuse or justify the
contact.” Bonner, 70 M.J. at 3. While the language is
different, the effect is the same. One cannot prove sexual
assault by threatening or placing that other person in fear
without necessarily proving assault consummated by a battery,
because one cannot prove a legal inability to consent without
necessarily proving a lack of consent. Accordingly, we find
assault consummated by a battery to be an LIO of sexual assault
under Article 120(b)(1), UCMJ (2012 ed.).

     b. Abusive Sexual Contact

     The military judge also found that assault consummated by a
battery was an LIO of the abusive sexual contact charges based
on the record. Record at 316-17. Applying the same analysis as
above, we agree. Under Article 120(d), UCMJ:

                                 8
     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 and shall be punished as a
     court-martial may direct.

     Because the abusive sexual contact charges in this case
were all based upon sexual contacts that would have violated
Article 120(b)(1), UCMJ, sexual assault by threatening or
placing that other person in fear, our analysis in the preceding
section is equally applicable here. Accordingly, we find
assault consummated by a battery to be an LIO of abusive sexual
contact, when that offense would have violated Article
120(b)(1), UCMJ, had the sexual contact been a sexual act.

     c. Due Process Notice of the LIO
     The Fifth Amendment requires that “‘an accused be on notice
as to the offense that must be defended against, and that only
lesser included offenses that meet these notice requirements be
affirmed by an appellate court.’” Jones, 68 M.J. at 468
(quoting United States v. Miller, 67 M.J. 385, 388 (C.A.A.F.
2009)). “The due process principle of fair notice mandates that
‘an accused has a right to know what offense and under what
legal theory’ he will be convicted; an LIO meets this notice
requirement if ‘it is a subset of the greater offense alleged.’”
Id. (quoting United States v. Medina, 66 M.J. 21, 26-27
(C.A.A.F. 2008)).
     The logic of our superior court’s holdings in Medina and
Jones is evident in the case at bar. The appellant was charged
with two Article 120, UCMJ, offenses alleging that he committed
sexual acts and had sexual contact with LCpl MS by placing her
in fear that, through the abuse of military position, rank, or
authority, he would negatively affect her military career.
Here, the appellant threatened LCpl MS that she would receive
nonjudicial punishment for drinking alcohol against medical
advice and/or would not have her medical paperwork processed if
she did not allow him sexual favors. Looking to the statutory
language, the UCMJ clearly states that a person cannot consent
while under threat or fear. Art. 120(g)(8)(B), UCMJ. Simply
reading the statute he was charged with violating would have
informed the appellant that fear (and, by implication, a lack of
consent) would play a major role in the Government’s case.



                                9
     Another source of notice in this case comes from the Manual
for Courts-Martial. Although the President has not yet signed
an Executive Order amending the Manual to address elements,
lesser included offenses, and sample specifications for the
newest version of Article 120, UCMJ, the Manual does contain a
note suggesting that practitioners use Appendix 28, which
contains the previous version of Article 120 and all of its
accompanying provisions, as a guide. 4 Turning to that appendix,
one finds that assault consummated by a battery is listed as an
LIO for both aggravated sexual assault and abusive sexual
contact. See MCM, Appendix 28, ¶ 45d(3)(b)) and ¶ 45d(8)(a).
     For the reasons stated above, we find that the appellant
had ample notice that assault consummated by a battery is an LIO
for both sexual assault and abusive sexual contact.
      d. Variance
     In addressing this assignment of error we also consider,
though not raised by either party on appeal, whether the
military judge's special findings indicate a variance between
the acts the appellant was charged with, and the basis on which
the military judge convicted him. Specifically, the appellant
was charged with committing sexual contact “by placing [LCpl MS]
in fear that, through the use or abuse of military position,
rank, or authority, he would affect her military career” and
committing a sexual act “by placing [LCpl MS] in fear that,
through the use or abuse of military position, rank, or
authority, he would affect her military career.” Charge Sheet.
However, while the military judge states that he found the
appellant "did not expressly place [LCpl MS] in fear of him
taking action that would affect her career,” the context and
circumstances surrounding the incident were such that LCpl MS
was, in fact, fearful of what could happen to her and her
military career if she resisted the appellant’s sexual advances.
This fear, combined with her oral protests allow this court to
also find that “it was not reasonable for the [appellant] to
have believed that [LCpl MS] was consenting.” AE XLI.

     When deciding this question we do not look simply at the
cited language, but rather at the special findings as a whole.
The cited language was confined to the final section of AE XLI
setting forth the military judge’s general findings relating to
“the whole of the evidence.”   With the exception of the

4
  While the court understands that the Manual’s listing of LIOs is purely
guidance, Jones, 68 M.J. at 465, we nonetheless find that guidance
significant for the purpose of providing notice.
                                     10
introductory section, all of the other sections were directed at
specific specifications and with respect to Additional Charge I
and its specifications said the touchings were “offensive to
[LCpl MS] as evidenced by her testimony that it was unwanted and
offensive;” that the “contact was done with unlawful force and
violence in that [LCpl MS] did not consent to the touching”;
that she “told the accused ‘no’;” that the “circumstances
surrounding the [touchings] were such that it was not reasonable
for the [appellant] to have believed that [LCpl MS] was
consenting;” that “[s]he was crying”; and that she “indicated
that she was married and that she did not want to engage in
sexual [touching].” AE XLI. When read together, we find that
the cited language does not indicate an impermissible variance,
but rather is merely a listing of additional factors that also
indicate that LCpl MS was motivated by fear. Such a listing
does not negate the military judge's finding that there was
ample evidence to prove, beyond a reasonable doubt, that LCpl MS
was afraid the appellant would “affect her military career,” as
charged. Having carefully reviewed the record, we are also
convinced beyond a reasonable doubt that while the appellant
“did not expressly place LCpl {MS} in fear of him taking action
that would affect her career if she did not consent or threaten
her,” he “pressured her in an unrelenting manner” and made LCpl
MS fearful that the appellant’s status as an SNCO would enable
him to use his rank and authority to have her punished for
drinking against her doctor’s orders and withhold further
processing of her medical paperwork if she did not comply with
his repeated requests for sexual favors. This fear precluded
her consent. Accordingly, we find this issue to be without
merit.

                  Legal and Factual Sufficiency
     The second assignment of error claims that the findings of
guilt to communicating indecent language and assault consummated
by a battery are legally and factually insufficient. 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 Government, any rational trier of fact
could have found the elements of the offense beyond a reasonable
doubt.” United States v. Dobson, 63 M.J. 1, 21 (C.A.A.F. 2006)
(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). When
testing for legal sufficiency, this court must draw every
reasonable inference from the record in favor of the


                               11
prosecution. United States v. McGinty, 38 M.J. 131, 132 (C.M.A.
1993); United States v. Blocker, 32 M.J. 281, 284 (C.M.A. 1991).
     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, the
members of [this court] are themselves convinced of the
accused’s guilt beyond a reasonable doubt.” United States v.
Turner, 25 M.J. 324, 325 (C.M.A. 1987). 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).
     In this case, the evidence of the appellant’s guilt with
regard to indecent language is clear. The appellant orally
communicated certain language to LCpl MS, as evidenced through
LCpl MS’s testimony that the appellant approached her from
behind and then said “I just jizzed (sic) on myself.” Record at
199. The language was indecent in that it referred to sexual
conduct; it was unwelcomed, vulgar, and offensive; and it took
place near LCpl MS’s workplace while at least one of them was in
uniform. Under the circumstances, the appellant’s language was
prejudicial to good order and discipline because it was made by
a married SNCO to a married junior Marine.
     On the Article 128 specifications, the Government presented
testimonial evidence from LCpl MS and the audio recording she
made of the incident with the appellant. The audio showed that
LCpl MS was scared and crying, that she reminded the appellant
she was married, she repeatedly told him “no,” and tried to push
the appellant away multiple times. Moreover, although the
military judge found that the appellant “did not expressly place
[LCpl MS] in fear of him taking action that would affect her
career,” the circumstances surrounding the incident were such
that “it was not reasonable for the [appellant] to have believed
that [LCpl MS] was consenting.” AE XLI.
     After carefully reviewing the record of trial and
considering the evidence in the light most favorable to the
Government, we are convinced that a reasonable fact-finder could
have found all the essential elements to both indecent language
and assault consummated by a battery 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 ourselves convinced beyond a
reasonable doubt of the appellant’s guilt.



                               12
             Unreasonable Multiplication of Charges

     We review a military judge’s decision to deny relief for an
unreasonable multiplication of charges under an abuse of
discretion standard. United States v. Campbell, 71 M.J. 19, 22
(C.A.A.F. 2012). A military judge abuses his discretion “when
he is incorrect about the applicable law, or when he improperly
applies the law.” United States v. Roberts, 59 M.J. 323, 326
(C.A.A.F. 2004). The five-factor framework for analyzing
unreasonable multiplication of charges is provided by the
following questions:
     (1) did the accused object at trial that there was an
     unreasonable multiplication of charges;
     (2) is each charge and specification aimed at
     distinctly separate criminal acts;
     (3) does the number of charges and specifications
     misrepresent or exaggerate the appellant’s
     criminality;
     (4) does the number of charges and specifications
     unreasonably increase the appellant’s punitive
     exposure; and,
     (5) is there any evidence of prosecutorial
     overreaching or abuse in the drafting of the charges?
United States v. Quiroz¸ 55 M.J. 334, 338-39 (C.A.A.F. 2001).
     When presented with the appellant’s request to merge six
specifications and two charges, the military judge responded
with the following:
          I’ve had a chance to deliberate on the motion
     from the defense and make the following findings and
     conclusions. With regard to merger of the 128
     offenses, I find that each specification is aimed at a
     distinct act separated by time, discussion between the
     accused and the complaining witness, location of some
     of the specifications, and protests by the complaining
     witness.
          I do not see this as an exaggeration of
     criminality of the accused or of prosecutorial
     overreaching. Although the acts occur over a fairly
     short time span, there is time and was time for
     reflection between each act. I further note that
     since this is an [sic], not a member’s trials, the
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      Court stands in a much better position to recognize
      the sentencing implications of multiple charges
      occurring over a short timeframe. Accordingly, I will
      not merge the Article 128 specifications.
           With regard to merging Specifications 1 and 2 of
      Charge I, I find that each specification is aimed at a
      distinct statutory goal. Sexual harassment protects
      against workplace conduct while fraternization guards
      against improper senior-subordinate relationships
      among other reasons. I again note that the Court can
      and will take into consideration the overlapping
      conduct in both specifications. The test is not that
      any multiplication of charges is wrong, but that an
      unreasonable multiplication of charges is prohibited.
Record at 325.
     Based on the appellant’s objection above, there is no
dispute that the first Quiroz criterion favors the appellant.
As to the remaining criteria, we are in agreement with the trial
judge. With the second criterion in particular, it is possible
to have distinct and discrete acts occur throughout the course
of a single evening and a single location. United States v.
Paxton, 64 M.J. 484, 490-91 (C.A.A.F. 2007). 5 Accordingly, we
find that the military judge did not abuse his discretion by
determining that there was not an unreasonable multiplication of
charges, and we find this assignment of error to be without
merit.

                        Sentence Appropriateness

     The appellant argues that his sentence to three years’
confinement, reduction to pay grade E-1, and a bad-conduct
discharge was inappropriately severe. In accordance with
Article 66(c), UCMJ, a Court of Criminal Appeals “may affirm
only such findings of guilty and the sentence or such part or
amount of the sentence, as it finds correct in law and fact and
determines, on the basis of the entire record, should be
approved.” Sentence appropriateness involves the judicial

5
  In Paxton, a father proceeded from watching his daughter in the bathroom, to
tucking her into bed, to touching her breasts, to penetrating her digitally,
to having her perform oral sodomy, to ultimately raping her. 64 M.J. at 490-
91. Between each sexual act, the daughter protested and the course of events
all occurred in the same evening and in the same location. Id. at 490. The
court found that each of the sexual acts served as a legitimate basis for a
separate charge and was not an unreasonable multiplication of charges. Id.
at 491.
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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 character of the
offender.’” United States v. Snelling, 14 M.J. 267, 268 (C.M.A.
1982) (quoting United States v. Mamaluy, 27 C.M.R. 176, 180-81
(C.M.A. 1959)).

     While we have a great deal of discretion in determining
whether a particular sentence is appropriate, we are not
authorized to engage in exercises of clemency. United States v.
Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999).

     After review of the entire record, we find that the
sentence is appropriate for this offender and his offenses. The
appellant sought and obtained sexual favors from a vulnerable
subordinate Marine who was facing medical and possible
disciplinary issues. A married Marine with over 10 years of
active duty service, the appellant’s actions failed to comply
with the expectations of a senior enlisted Marine leader, and
his behavior reflected great discredit upon the service.
Consequently, we conclude that granting sentence relief at this
point would be to engage in clemency, a prerogative reserved for
the convening authority.
                           Conclusion
     The findings and the sentence as approved by the CA are
affirmed.

     Senior Judge MCFARLANE and Judge HOLIFIELD concur.

                                For the Court




                                R.H. TROIDL
                                Clerk of Court




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