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

                                 Before
               J.A. FISCHER, K.M. MCDONALD, D.C. KING
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                        JOHN M. HENDERSON
                  SERGEANT (E-5), U.S. MARINE CORPS

                           NMCCA 201400216
                        GENERAL COURT-MARTIAL

Sentence Adjudged: 4 December 2013.
Military Judge: LtCol N.K. Hudspeth, USMC.
Convening Authority: Commanding General, 2d Marine Aircraft
Wing, Cherry Point, NC.
Staff Judge Advocate's Recommendation: LtCol J.J. Murphy,
USMC.
For Appellant: Capt Michael Magee, USMC.
For Appellee: CDR Christopher Van Brackel, JAGC, USN; LT
Ann Dingle, JAGC, USN.

                              27 May 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.

PER CURIAM:

     A military judge, sitting as a general court-martial,
convicted the appellant, contrary to his pleas, of one
specification of adultery, in violation of Article 134, Uniform
Code of Military Justice, 10 U.S.C. § 934. 1 The appellant was
sentenced to reduction to pay grade E-3 and a bad-conduct
discharge. The convening authority approved the sentenced as
adjudged.

     On appeal, the appellant raises two assignments of error
(AOE): (1) that the evidence presented at trial is legally and
factually insufficient to convict him for adultery; and (2) that
the appellant’s sentence was inappropriately severe. After
careful consideration of the record of trial and the parties’
pleadings, we conclude that the findings are correct in law and
fact but that the sentence is inappropriately severe. Arts.
59(a) and 66(c), UCMJ.

                                 Background

     Mrs. AL (AL) was married to a Marine Sergeant (Sgt) and
lived in base housing at Camp Lejeune, North Carolina. On 17
March 2012, while her husband was out of town at a NASCAR event,
AL invited Mrs. C and several others to her housing unit for a
party. Mrs. C’s husband was also a Marine Sgt in the same unit
as AL’s husband. After drinking heavily, AL left her party and
went to a neighbor’s house party where she met the appellant.

     The appellant was also married, but had separated from his
wife two years prior to this incident. 2 AL invited the
appellant, another female (Mrs. B), and the appellant’s male
friend Corporal (Cpl) D back to the party at her house to play a
drinking game. All three accepted and the drinking continued at
AL’s home.

     Eventually, the appellant and AL began kissing each other
on AL’s couch. The amorous activity continued until AL fell
asleep, after which the appellant and Mrs. C took AL to an
upstairs bedroom and placed her in the bed. As the sun came up,
everyone but AL and the appellant left AL’s home to help clean
up a neighboring yard. The appellant testified that he then
went to AL’s bedroom, woke her up, and asked AL if she “still
want[ed] to have sex.” 3 He stated that AL responded in the
1
  The appellant was acquitted of one specification each of aggravated sexual
assault and assault consummated by a battery under Articles 120 and 128,
UCMJ, 10 U.S.C. §§ 920 and 928.
2
  It is not clear from the record whether the separation was legal or simply
de facto.
3
    Record at 277.


                                      2
affirmative and the two began to engage in intercourse, during
which the appellant testified AL was conscious, responsive and
an active participant. The appellant’s version of events is
supported by the testimony of Cpl D and Mrs. C. Cpl D witnessed
the appellant and AL engaged in consensual sexual activity and
Mrs. C testified that she heard AL making comments that can only
be interpreted as indicative of consensual sexual activity.

     Later, when the appellant came downstairs he described to
Cpl D in graphic detail the sexual activity with AL in which he
had just engaged. Mrs. C overheard this conversation and
concluded that the appellant was “a giant douche bag.” 4

     The parties then departed AL’s home, Mrs. C being picked up
by her husband. As she and her husband were returning home,
Mrs. C told her husband what had transpired and her husband
decided to turn the car around so Mrs. C could check on AL.
When Mrs. C confronted AL with the fact that she had engaged in
sexual intercourse with the appellant, AL claimed to not
remember what took place and stated she wanted to report the
interaction as a rape. Mrs. C took AL to the local hospital
where AL underwent a sexual assault examination. The
appellant’s court-martial ensued.

     The Government charged the appellant with sexually
assaulting AL by having intercourse with her while she was
“substantially incapacitated.” Additionally, the appellant was
charged with committing adultery by “wrongfully having sexual
intercourse with [AL], a married woman not his wife, and that
under the circumstances, the conduct of the accused was to the
prejudice of good order and discipline in the armed forces or
was of a nature to bring discredit upon the armed forces.”

      At trial, the defense moved the court to dismiss the
adultery specification under RULE FOR COURT MARTIAL 917, MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2012 ed.). In opposing the motion,
the trial counsel argued: “this happened in base housing[;] . .
. the [appellant] is a married active duty . . . Marine; that
the reported victim was a married dependent of an active duty
Marine living in base housing; and other members of the party .
. . who were present and witnessed this happen knew that [AL]
was married to an active duty Marine.” 5 The motion was denied
and, in referring to the adultery during his closing argument,

4
    Id. at 171.
5
    Id. at 250-51.


                                  3
the trial counsel stated simply: “He . . . had sex with her . .
. while he was married and she was married. For those reasons,
we ask that you find him guilty [of adultery.]” 6 The military
judge did so. 7

                                 Discussion

     In his first AOE the appellant contends that the evidence
is legally and factually insufficient to establish that he
committed the offense of adultery. Specifically, he argues that
the Government failed to offer any evidence that the appellant’s
adulterous conduct was directly prejudicial to good order and
discipline or service discrediting.

     The test for legal sufficiency of the evidence 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. Oliver, 70 M.J. 64, 68
(C.A.A.F. 2011) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)). In resolving questions of legal sufficiency, “we are
bound to draw every reasonable inference from the evidence of
record in favor of the prosecution.” United States v. Barner,
56 M.J. 131, 134 (C.A.A.F. 2001) (citations omitted).

     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, this court is
convinced of the accused’s guilt beyond a reasonable doubt.
United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). “Such
a review involves a fresh, impartial look at the evidence,
giving no deference to the decision of the trial court . . .
beyond the admonition in Article 66(c), UCMJ, to take into
account the fact that the trial court saw and heard the
witnesses.” United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002).

     To secure a conviction for adultery under Article 134,
UCMJ, the Government must prove that: (1) the accused wrongfully
had sexual intercourse with a certain person; (2) at the time,
the accused or the other person was married to someone else; and
(3) under the circumstances, the accused’s conduct was to the
prejudice of good order and discipline in the armed forces or

6
    Id. at 335.
7
  After deliberating in place, the military judge acquitted the appellant of
the battery and sexual assault offenses.
                                      4
was of a nature to bring discredit upon the armed forces.   MANUAL
FORCOURTS-MARTIAL(2012 ed.), Part IV, ¶ 62(b).

     The appellant does not challenge the evidence as it relates
to the first or second elements cited above and we find the
evidence as to those two elements sufficient. Instead, our
review focuses on the terminal element. At the outset we note
that “[a]n accused cannot be convicted under Article 134 if the
trier of fact determines only that the accused committed
adultery; the trier of fact must also determine beyond a
reasonable doubt that the terminal element has been satisfied.”
United States v. Fosler, 70 M.J. 225, 230 (C.A.A.F. 2011)
(citation omitted).

     Prior to 2002, the MCM explanation of the terminal element
of adultery -- that, under the circumstances, the conduct of the
accused was to the prejudice of good order and discipline in the
armed forces or was of a nature to bring discredit upon the
armed forces -- defaulted to the general explanation applicable
to all offenses under Article 134. MCM (2000 ed.), Part IV, ¶¶
60c and 62c. Thus, as with other Article 134 offenses, “to the
prejudice of good order and discipline” referred “only to acts
directly prejudicial to good order and discipline and not to
acts which are prejudicial only in a remote or indirect
sense[,]” id. at ¶ 60 c(2)(a), while “of a nature to bring
discredit upon the armed forces” was “conduct which has a
tendency to bring the service into disrepute or which tends to
lower it in public esteem[,]” id. at ¶ 60c(3).

     However, Executive Order 13,262, 67 Fed. Reg. 18773, 18778
(Apr. 17, 2002), amended the MCM to create a separate
explanation of the terminal element unique to adultery offenses.
Since then, the MCM provides, “Adulterous conduct that is
directly prejudicial to good order and discipline includes
conduct that has an obvious, and measurably divisive effect on
unit or organization discipline, morale, or cohesion, or is
clearly detrimental to the authority or stature of or respect
toward a servicemember.” MCM (2012 ed.), Part IV, ¶ 62c(2).
“Discredit means to injure the reputation of the armed forces
and includes adulterous conduct that has a tendency, because of
its open or notorious nature, to bring the service into
disrepute, make it subject to public ridicule, or lower it in
public esteem.” Id. The explanation then provides a non-
exhaustive list of factors to consider when determining whether




                                5
adulterous acts are prejudicial to good order and discipline
and/or service discrediting. 8

     We agree with our sister court that this new explanation
operated to narrow the scope of adultery as an offense under the
UCMJ. See United States v. Jonsson, 67 M.J. 624, 626
(C.G.Ct.Crim.App. 2009) (citing, Joint Annual Report of the Code
Committee Pursuant to the Uniform Code of Military Justice
(October 1, 2002 to September 30, 2002), reprinted at 59 M.J.
LXXIII (2004)). See also United States v. Orellana, 62 M.J.
595, 599 (N.M.Ct.Crim.App. 2005); United States v. Jones, No.
20090900, 2012 CCA LEXIS 250, unpublished op. (Army Ct.Crim.App.
10 Jul 2012); United States v. Jones, No. 20090401, 2011 CCA
LEXIS 403, unpublished op. (Army Ct.Crim.App. 14 Dec 2011).
Therefore, in order to satisfy the terminal element of adultery,
the Government must prove either that the adulterous conduct had
“an obvious, and measurably divisive effect on unit or
organization discipline, morale, or cohesion, or is clearly
detrimental to the authority or stature of or respect toward a
servicemember[,]” or that the adulterous conduct was
sufficiently “open or notorious” to have a tendency to “bring
the service into disrepute, make it subject to public ridicule,
or lower it in public esteem.” MCM (2012 ed.), Part IV, ¶
62c(2). We find sufficient evidence to conclude the finding of
guilt was both legally and factually sufficient for both clauses
of the terminal element.

               Prejudicial to Good Order and Discipline

     The appellant now argues that, since there was no evidence
of “direct and palpable” injury to good order and discipline,
the Government failed to prove clause 1 of the terminal element.
We disagree. Paragraph 62 describes clause 1 offenses as those
that have either have “an obvious, and measurably divisive
effect on unit or organization discipline, morale, or cohesion,”
or are “clearly detrimental to the authority or stature of or

8
  These factors are: (a)the accused’s marital status; (b)the co-actor’s
marital status; (c)the military status of the accused’s or co-actor’s spouse;
(d)the impact, if any of the adulterous relationship on the ability of the
accused , the co-actor, or the spouse of either to perform their duties in
support of the armed forces; (e) the misuse of government time and resources
to facilitate the commission of the conduct; (f) whether the conduct
persisted despite counseling or orders to desist, the flagrancy of the
conduct, such as whether any notoriety ensued; (g) the negative impact of the
conduct on the unit or organization of the accused; (h) whether the accused
or co actor was legally separated; and (i) whether the adulterous misconduct
involves an ongoing or recent relationship or is remote in time. MCM (2012
ed.), Part IV, ¶ 62c(2).
                                      6
respect toward a servicemember.” While we agree that evidence
of an “obvious, and measurably divisive effect” was lacking, we
find the evidence sufficient to establish that the misconduct
was “clearly detrimental to the authority or stature of or
respect towards” the appellant.

     The appellant was a noncommissioned officer senior to Cpl C
when he engaged in this conduct. Not only did the appellant
perform the adulterous act in base housing, he did so in the
presence of his junior, Cpl C. See Orellana, 62 M.J. at 600
(adultery prejudicial to good order and discipline when, inter
alia, it occurred in quarters on board military installation).
Moreover, only moments later the appellant recounted -- in
graphic detail -- his misdeed to Cpl C. While we recognize that
Cpl C may have been engaged in similar misconduct, that fact
does not detract from our conclusion that the appellant’s
misdeed was “clearly detrimental to the authority or stature of
or respect towards” the appellant. The appellant was a Marine
noncommissioned officer who engaged in sexual activity with the
wife of another Marine noncommissioned officer in that man’s
home. See id. (“noncommissioned officers, by virtue of their
rank and authority, have the responsibility to maintain high
personal standards of conduct”). This evidence is factually and
legally sufficient to support a conviction for a clause 1
offense. 9

                          Service Discrediting

     We also find the appellant’s misconduct to be service
discrediting. “Whether conduct is of a ‘nature’ to bring
discredit upon the armed forces is a question that depends on
the facts and circumstances of the conduct, which includes facts
regarding the setting as well as the extent to which Appellant's
conduct is known to others. The trier of fact must consider all
the circumstances, but such facts, -- including the fact that
the conduct may have been wholly private -- do not mandate a
particular result unless no rational trier of fact could
conclude that the conduct was of a ‘nature’ to bring discredit
upon the armed forces.” United States v. Phillips, 70 M.J. 161,
166 (C.A.A.F. 2011). The appellant argues that there is “an

9
  We echo the admonition of the Court of Appeals for the Armed Forces that
trial counsel should endeavor to make its theory of discredit or prejudice
apparent during opening and closing arguments. Omitting any mention of
evidence relevant to the terminal element is not a best practice. See United
States v. Norman, ___ M.J. ___ , No. 14-0524, slip op. at 22 n.5, (C.A.A.F.
Apr. 29, 2015.)


                                     7
absolute void of any evidence that any member of the general
public was aware of the encounter[,] [o]r that the encounter
even occurred under such circumstances that the general public
may become aware.” 10 Further, the appellant contends that
service discrediting conduct requires proof that “the conduct is
of such a serious nature that it damages the entire service.” 11
We disagree.

     While we acknowledge that Paragraph 62 cautions that
adulterous conduct that is “private and discreet in nature may
not be service discrediting,” appellant’s implicit argument that
his intercourse with AL matches this description ignores the
facts. Not only was the appellant’s conduct known to Cpl C and
Mrs. C, the appellant boasted about it afterwards. We also
reject the appellant’s contention that a conviction requires
evidence that a member of the general public be aware of the
adulterous conduct. Phillips, 70 M.J. at 166 (“In general the
government is not required to present evidence that anyone
witnessed or became aware of the conduct.”). See also Orellana,
62 M.J. at 599 (“there is no requirement that the Government
show actual damage to the reputation of the military.”).

     Instead, the Government must show that the misconduct be
sufficiently “open or notorious” that it “has a tendency” to
“bring the service into disrepute, make it subject to public
ridicule, or lower it in public esteem.” MCM (2012 ed.), Part
IV, ¶ 62c(2). We find that a Marine noncommissioned officer,
engaging in adulterous conduct in military housing, in the
presence of a junior, who then shares his exploit such that
others are aware of the misconduct, satisfies this requirement.
Accordingly, the appellant's conviction for adultery is
consistent with the limiting principles for prosecuting such
offenses under Article 134.

     Considering the evidence in the light most favorable to the
prosecution, a reasonable fact-finder could have found that all
the essential elements were proven beyond a reasonable doubt.
Additionally, weighing the evidence in the record of trial and
making allowances for not having personally observed the
witnesses, this Court is itself convinced of the accused's guilt
beyond a reasonable doubt.




10
     Appellant’s Reply Brief of 21 Oct 2014 at 3-4.
11
     Id. at 4.
                                         8
                      Sentence Appropriateness

     Finally, the appellant argues that a bad-conduct discharge
is excessive and inappropriate given the facts of his case. In
accordance with Article 66(c), UCMJ, this 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.” Determining 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
“‘[i]ndividualized 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)).

     During the sentencing hearing, the Government admitted the
appellant’s service record book, which contained no derogatory
information, and then rested its case. The trial counsel then
argued for a sentence of reduction to E-3, 60 days restriction,
and forfeitures of two-thirds pay per month for two months. The
Government did not request a bad-conduct discharge.

     In mitigation, the defense admitted evidence that the
appellant had offered to accept responsibility and plead guilty
to adultery at an Article 15 hearing over a year earlier. The
record also indicates the appellant had been on active duty for
over seven years at the time of his court-martial, was an
Avionics Technician on the V22 (OSPREY) who had deployed to
Afghanistan and had earned a proficiency and conduct average of
4.5 out of 5.0.

     The defense then argued that a sentence for deterrence
purposes was unnecessary: “[he was] accused of rape. For two
years this has hung over his head and anyone who knows him and
has talked to him over the last two years knows exactly how
painful this has been for him.” 12 In arguing for an appropriate
sentence, the defense counsel stated, “If the court is firm and
fair, it will award no more than a letter of reprimand and
reduction to Corporal.” 13



12
     Record at 351.
13
     Id.
                                 9
     In light of the fact that the Government offered no
evidence that would aggravate the adultery beyond the act
itself, we are left with an otherwise proficient, above-average
Marine who had served otherwise honorably for seven years.
Therefore, on this record, we are not persuaded that a bad-
conduct discharge, awarded at a general court marital, is an
appropriate sentence that “should be approved” for this
offender.

                           Conclusion

     We affirm the finding of guilty and only so much of the
sentence extending to reduction to pay grade E3.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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