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

                                 Before
                  R.Q. WARD, D.C. KING, G.G. GERDING
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                       TIMOTHY BALDWIN
             MASTER SERGEANT (E-8), U.S. MARINE CORPS

                            NMCCA 201400014
                        SPECIAL COURT-MARTIAL


Sentence Adjudged: 29 August 2013.
Military Judge: LtCol Leon Francis, USMC.
Convening Authority: Commanding Officer, Headquarters
Battalion, 1st Marine Division, Camp Pendleton, CA.
Staff Judge Advocate's Recommendation: LtCol D.R. Kazmier,
USMC.
For Appellant: LT Carrie Theis, JAGC, USN.
For Appellee: Maj Paul Ervasti, USMC.

                           13 November 2014

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

GERDING, Judge:

     A military judge, sitting as a special court-martial,
convicted the appellant, contrary to his pleas, of one
specification of violating a lawful general order by committing
sexual harassment and one specification of violating a lawful
regulation by fraternizing in violation of Article 92, Uniform
Code of Military Justice, 10 U.S.C. § 892. The military judge
sentenced the appellant to confinement for 89 days, reduction to
pay grade E-7, and a bad-conduct discharge. The convening
authority approved the sentence as adjudged.

     The appellant raises four assignments of error: (1) a bad-
conduct discharge is inappropriately severe; (2) the military
judge improperly admitted evidence under MILITARY RULE OF EVIDENCE
404(b), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.); (3) the
evidence as to both charges is legally and factually
insufficient; and (4) plain error occurred when the military
judge admitted evidence of the appellant’s nonjudicial
punishment (NJP) from a prior enlistment.

     For the reasons below, we conclude the findings and
sentence are correct in law and fact and no error materially
prejudicial to the substantial rights of the appellant occurred.
Arts. 59(a) and 66(c), UCMJ.

                   Legal and Factual Sufficiency

     We review the legal and factual sufficiency of a conviction
de novo. United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002). The test for legal sufficiency is, viewing the
evidence in the light most favorable to the prosecution, whether
“‘any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’” United
States v. Brown, 55 M.J. 375, 385 (C.A.A.F. 2001) (quoting
Jackson v. Virginia, 443 U.S 307, 319 (1979)). For factual
sufficiency, we must ourselves be convinced of the appellant’s
guilt beyond a reasonable doubt, taking into account that the
trial court saw and heard the witnesses. Art. 66(c), UCMJ;
Washington, 57 M.J. at 399.

     Both specifications here allege a violation of Article 92,
UCMJ. To prove a violation of Article 92, the Government must
prove beyond a reasonable doubt that (1) a certain lawful
general order or regulation was in effect; (2) the accused had a
duty to obey that order or regulation; and (3) the accused
violated or failed to obey the order or regulation. Here,
Charge I alleged that the appellant violated a lawful general
regulation, Article 1165, U.S. Navy Regulations (1990), by
wrongfully having an unduly familiar relationship with Corporal
(Cpl) CS. Additional Charge I alleged that the appellant
violated Paragraph 4(a)(1)(a), Marine Corps Order (MCO) 1000.9A
(30 May 2006), by sexually harassing Lance Corporal (LCpl) CD.
The appellant does not challenge the existence of the order or
regulation, or that he had a duty to obey them. Thus, the only

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question is whether the evidence that the appellant violated the
regulation and order is legally and factually sufficient.

Fraternization

     Article 1165, U.S. Navy Regulations, prohibits “personal
relationships” between enlisted members that are “unduly
familiar and that do not respect differences in grade or rank.”
An essential element of an alleged violation of Article 1165 is
the existence of a relationship. United States v. Jackson, 61
M.J. 731, 735 (N.M.Ct.Crim.App. 2005). Relationships are
prohibited when prejudicial to good order and discipline or of a
nature to bring discredit on the naval service. Id. Examples
of prohibited relationships are those that call into question a
senior’s objectivity; result in actual or apparent preferential
treatment; undermine the authority of a senior; or compromise
the chain of command. Art. 1165, U.S. Navy Regulations.

     During 2012, the appellant met then-LCpl CS, who was
assigned to Truck Company A. In August 2012, the appellant
investigated several Marines involved in using Spice. One of
the persons under investigation was a friend of LCpl CS. LCpl
CS testified that prior to her friend getting into trouble, she
did not have much contact with the appellant. During the Spice
investigation, the appellant exchanged personal phone numbers
with LCpl CS and began communicating with her to gather
information relevant to his investigation. Also in August 2012
a Marine committed suicide in the barracks and the appellant
bore some responsibility for investigating the suicide. The
suicide had a significant impact on Marines in the barracks,
including LCpl CS.

     In August and into early September, the appellant
communicated with LCpl CS about the Spice investigation, the
barracks suicide, as well as problems LCpl CS was experiencing
with the barracks manager and with qualifying at the rifle
range. During this time, LCpl CS also sought and received
advice from the appellant on professional and personal matters.
LCpl CS testified that the appellant communicated with her about
professional matters, and that he counseled her on personal
matters, as a mentor. These counseling or mentoring sessions
with the appellant mostly occurred one-on-one in the appellant’s
office, often times after normal work hours, and on occasion
with the office door closed.

     In addition to his one-on-one counseling sessions, the
appellant often would embrace LCpl CS in what she described at

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trial as a “full hug,” which made her uncomfortable. During one
counseling session in the appellant’s office, he asked LCpl CS
to sit on his lap, but she declined. On one occasion in the
barracks, the appellant made a sexual comment in front of LCpl
CS and another female Marine, LCpl KV, and hugged them both. On
another occasion, the appellant made a sexual comment to LCpl CS
about her pregnancy. She testified that the appellant’s various
comments and hugs made her feel uncomfortable and that she
thought the appellant was “perverted.”

     Although we recognize that there might have been
communications between the appellant and LCpl CS that were
official in nature, the number of those communications and the
times many of them occurred demonstrate that the appellant’s
relationship with LCpl CS became unduly familiar, without
respect for the difference in their rank. LCpl CS testified
that the appellant asked her about personal matters in some of
the texts and calls, also showing that their relationship
devolved into more than just the appellant seeking work-related
information.

     We also find sufficient evidence that their unduly familiar
relationship was prejudicial to good order and discipline. LCpl
CS testified the appellant was in her chain-of-command. She
said that he hugged her on occasion and the hugs progressed to a
“full blown embrace.” The appellant’s hugs made her feel
awkward. During one encounter with the appellant, another
member of their unit, LCpl KV, was present and witnessed the
appellant’s inappropriate interactions with LCpl CS. During
that encounter, the appellant hugged LCpl CS and made
inappropriate jokes with her. LCpl CS testified that she and
LCpl KV felt the appellant was perverted and made them feel
uncomfortable. On another occasion, the appellant invited LCpl
CS to sit on his lap, again making her feel uncomfortable. Even
though LCpl CS had some negative interactions with the
appellant, she continued to seek him out in an apparent attempt
to use their unduly familiar relationship to her advantage.
LCpl CS sought the appellant’s help with matters related to her
barracks assignment and her performance at the rifle range.

     The appellant’s unduly familiar relationship with LCpl CS
affected her in the workplace. She testified that after the
appellant asked her to sit on his lap, she began to avoid him
and did not want anything else to do with him. That LCpl CS
used the relationship with the appellant to her advantage, that
she then wanted to avoid him and have nothing to do with him,
and that at least one member of their unit witnessed the

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inappropriate behavior demonstrates the prejudice to good order
and discipline that Article 1165 seeks to prevent.

     Therefore we believe the evidence is legally sufficient
that the appellant fraternized with LCpl CS, in violation of
Article 1165. We are likewise convinced of the appellant’s
guilt beyond a reasonable doubt and hold the evidence is
factually sufficient.

Sexual Harassment

     MCO 1000.9A prohibits “sexual harassment.” To constitute
sexual harassment, a person’s behavior must (1) be unwelcome,
(2) be sexual in nature, and (3) occur in or impact the work
environment. MCO 1000.9A, enclosure (1), ¶ 2. The appellant
argues that individually his comments and physical contact with
LCpl CD were not sexual in nature and did not impact the work
environment. However, the appellant’s comments and actions
cannot be parsed out for analysis. “If the behavior occurs in
the work environment and is unreasonable, it may be considered
sexual harassment, even if displayed only once. Other less
obvious behaviors can become sexual harassment if they are
repeated.” MCO 1000.9A, enclosure (1), ¶ 2c(4).    Finally,
“[c]omments need not be expressly or explicitly sexual to be of
a sexual nature.” United States v. Pope, 63 M.J. 68, 72
(C.A.A.F. 2006).

     In 2012, the appellant served as the acting First Sergeant
of Truck Company A. As part of his duties, he met LCpl CD, a
clerk in S-1. LCpl CD’s relationship with the appellant started
out as professional but became friendlier over time. LCpl CD
testified that she started confiding in the appellant about
personal issues and that she looked up to him as a mentor. LCpl
CD testified that the appellant engaged in physical contact—
hugs--with her over the course of several months and that this
culminated with several incidents one day in July 2012. In July
2012, the appellant saw LCpl CD walking on base. He stopped his
truck and asked if she wanted to have lunch. LCpl CD agreed and
they went to pick up food at McDonald’s. The appellant and LCpl
CD talked about LCpl CD’s pregnancy. The appellant told her
that some husbands get their wives pregnant right before
deployment so they do not have to be there during the pregnancy.
LCpl CD testified this comment made her feel bad. The appellant
then said that some pregnant women have sex with other men
during their pregnancy. LCpl CD thought the comments were
“weird.” They picked up food at the McDonald’s drive-through
and the appellant started driving off-base. LCpl CD did not

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know where they were going and worried that she would be late
returning to her unit after lunch.

     The appellant took LCpl CD to his home off-base. He showed
her a guest area adjacent to the garage and offered that LCpl CD
could “crash” there anytime. The appellant invited LCpl CD into
his home but she declined. They sat in the back yard together
and ate lunch. They talked about the death of LCpl CD’s father
and the deployment of LCpl CD’s husband. Eventually the
appellant drove LCpl CD back to base. On the way, he commented
that he did not want her to think he was flirting but that her
eyes looked seductive. When he dropped off LCpl CD at work, he
took her hand as if to shake it, but instead held it an
unusually long time and “caressed” it. LCpl CD testified that
the appellant rubbed her hand in a circular motion. She said
that she did not invite the comments or physical contact.

     LCpl CD testified that after that day, her interaction with
the appellant was never the same. She did not confide in him
anymore or seek out his advice. When she did see him, she felt
awkward. She felt disgusted with herself and the appellant. We
believe that when considered together, the appellant’s comments
and touching of LCpl CD were sexual in nature.

     We also reject the appellant’s argument that his behavior
did not have an impact on the work environment. LCpl CD
testified that she stopped seeking advice from the appellant and
that when she saw him at work, she felt disgusted and dirty.
These behaviors occurred not between two Marines of equal rank
in different units, but between a junior lance corporal and a
senior master sergeant, who was the acting First Sergeant, in
the chain-of-command. Additionally, the appellant ignores that
the instruction prohibits such behavior if it impacts the work
environment or occurs in the work place. Even though some of
the appellant’s conduct occurred in his truck and at his off-
base home, it occurred during the work day, and he and LCpl CD
were in uniform. Those facts satisfy us that the appellant’s
behaviors occurred in and impacted the work place. See MCO
1000.9A, enclosure (1), ¶ 2(c)(3) (indicating that “‘workplace’
is an expansive term for military members and may include
conduct on or off duty 24 hours a day”).

     Taking the appellant’s actions with LCpl CD altogether and
viewing the evidence in the light most favorable to the
prosecution, we believe the evidence is legally sufficient that
the appellant sexually harassed LCpl CD, in violation of MCO
1000.9A. We are likewise convinced of the appellant’s guilt

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beyond a reasonable doubt and hold the evidence is factually
sufficient.

                      MIL. R. EVID. 404(b) Evidence

      The Government proffered the testimony of several witnesses
who accused the appellant of touching them or making various
comments that made them feel uncomfortable or that they believed
were unprofessional. The military judge ruled that the
testimony of five of those witnesses was inadmissible under MIL.
R. EVID. 404(b). Appellate Exhibit XVIII. He ruled that the
testimony of five other witnesses, LCpl CS, LCpl CD, LCpl KV,
Cpl CM, and Sgt RW, was admissible under MIL. R. EVID. 404(b).
Id.

      Specifically, the military judge ruled that LCpl CS’s and
LCpl CD’s testimony was admissible to show a common scheme or
plan involving each other’s allegations. He ruled that LCpl KV
could testify about interactions with the appellant beyond those
related to Additional Charge II, a charge in which LCpl KV was
herself an alleged victim.1 He ruled that LCpl KV’s testimony,
as well as Cpl CM’s and Sgt RW’s testimony was admissible under
MIL. R. EVID. 404(b) to show a common scheme or plan for the
charges involving both LCpl CS and LCpl CD. AE XVIII.

     The appellant contends that the military judge erred in his
ruling that LCpl CS’s and LCpl CD’s testimony was admissible to
show a common scheme or plan involving each other’s allegations
in that their allegations were not “almost identical.” The
appellant also argues that the testimony of Sgt RW and Cpl CM
was not sufficiently similar to LCpl CD’s and LCpl CS’s
allegations and should not have been admitted to show a common
scheme or plan. The appellant contends that evidence of the
appellant’s behavior and interactions with other women was
inadmissible under Rule 404(b). We disagree.

     We review a military judge’s decision to admit evidence for
an abuse of discretion. United States v. Barnett, 63 M.J. 388,
394 (C.A.A.F. 2006). In determining whether the military judge
abused his discretion, we are guided by the three-part test set
out in United States v. Reynolds, 29 M.J. 105, 109 (C.M.A.
1989). For evidence to be admissible under MIL. R. EVID. 404(b),
we must determine whether 1) the evidence reasonably supports a
1
   The military judge granted the appellant’s motion to dismiss a charge of
indecent language which was based on one of the appellant’s comments to LCpl
KV because the comment, although inappropriate, was not indecent.


                                      7
finding by the court that the appellant committed certain prior
crimes, wrongs or acts; 2) a fact of consequence is made more or
less probable by the existence of the evidence; and 3) the
probative value is not substantially outweighed by the danger of
unfair prejudice. Id.

     As to the first part of the Reynolds test, the testimony of
Sgt RW, Cpl CM, LCpl CS, LCpl CD, and LCpl KV reasonably
supports a finding that the appellant engaged in the
inappropriate behavior with them that each alleged. Each
testified that the appellant touched them and acted towards them
in ways that were inappropriate, unprofessional, and made them
feel uncomfortable.

     Second, in order to prove the appellant engaged in
fraternization, the Government had to prove that he had a
“personal relationship” with LCpl CS. To prove the appellant
sexually harassed LCpl CD, the Government had to prove that the
appellant engaged in behavior that was sexual in nature. Part
of the Government’s proof of that personal relationship and
sexual behavior involved the appellant’s actions around LCpl CS
and LCpl CD, including hugs, comments, and communications
outside of those that could be expected of a purely professional
relationship. The testimony of these witnesses demonstrated
that the appellant engaged in inappropriate sexual behavior and
unprofessional relationships with subordinate female Marines.
Their allegations against the appellant are strikingly similar,
and show that he planned to engage in an inappropriate
relationship with LCpl CS and that he planned to harass LCpl CD.
It is also easy to see in the appellant’s actions with all five
women a common scheme, which was to gradually groom his victim
either over the course of a single encounter or several months
to engage in more inappropriate behavior.

     Finally, we believe the probative value of their testimony
was not substantially outweighed by the danger of unfair
prejudice. The probative value of the testimony as to the
appellant’s plan and common scheme was high, while the risk of
prejudice was low. The appellant was tried by military judge
alone and we are confident that the military judge properly
weighed and evaluated each witness’s testimony. We also do not
believe that the evidence against the appellant regarding the
fraternization charge and the sexual harassment charge
improperly spilled over into the military judge’s determination
of guilt on the other charge. The evidence of each offense was
strong and stood independently.


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     Even if the military judge erred in allowing the challenged
testimony, we are convinced that the appellant suffered no
material prejudice to his substantial rights. The evidence
against the appellant supporting the convictions for sexual
harassment and fraternization was strong even without
consideration of the appellant’s interactions with other
victims.

                Evidence of the Appellant’s NJP

     During sentencing, the Government offered Prosecution
Exhibit 6, which included fitness reports documenting an NJP of
the appellant’s from a prior enlistment. The military judge
asked if the appellant objected to the exhibit and civilian
defense counsel responded “no objection.” Record at 621.
During the defense sentencing case, the appellant submitted, and
the trial court admitted, Defense Exhibit D, which also
contained the appellant’s fitness reports. The fitness reports
in Defense Exhibit D are identical to the ones in Prosecution
Exhibit 6 that the appellant complains of now.

     The appellant did not object to the military judge’s
consideration of evidence of his NJP from a prior enlistment.
Because he failed to object at trial to that evidence, the
appellant now asserts plain error. However, we decline to
review for plain error because the appellant waived his right to
review of this issue on appeal. “‘[W]aiver is a deliberate
decision not to present a ground for relief that might be
available in the law.’” United States v. Campos, 67 M.J. 330,
332 (C.A.A.F. 2009) (quoting United States v. Cook, 406 F.3d
485, 487 (7th Cir. 2005)). By affirmatively stating he had no
objection, and by submitting his own evidence of his prior NJP,
we find that the appellant waived any right to assert on appeal
that the military judge erred in admitting this evidence.

                    Sentence Appropriateness

     The appellant contends that a bad-conduct discharge is
inappropriately severe. We disagree. In accordance with
Article 66(c), UCMJ, a military appellate court “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
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

                                9
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) (quoting United States v. Mamaluy, 27 C.M.R. 176, 180-81
(C.M.A. 1959)). We independently determine the appropriateness
of the sentence in each case we affirm. See United States v.
Baier, 60 M.J. 382, 384-85 (C.A.A.F. 2005).

     The appellant accurately notes his respectable military
career and service. However, he is a senior enlisted Marine who
sexually harassed a junior Marine in his chain-of-command. He
also engaged in an inappropriate relationship with a junior
Marine in his chain-of-command. Neither was an isolated
incident, as shown by the appellant’s prior misconduct that
resulted in his NJP. A repeat offender, the appellant engaged
in the type of misconduct that is particularly pernicious to
good order and discipline. We are convinced on these facts that
this appellant received an appropriate sentence.


                           Conclusion

    The findings and sentence are affirmed.

    Senior Judge WARD and Judge KING concur.

                                For the Court


                                R.H. TROIDL
                                Clerk of Court




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