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

                                  Before
               J.A. FISCHER, K.J. BRUBAKER, B.T. PALMER
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                      v.

                          JAMAR X. PERRY
                    MASTER-AT-ARMS (E-5), U.S. NAVY

                            NMCCA 201400425
                        SPECIAL COURT-MARTIAL

Sentence Adjudged: 6 August 2014.
Military Judge: Capt Andrew H. Henderson, JAGC, USN.
Convening Authority: Commanding Officer, Fleet Combat
Camera Pacific, Naval Air Station North Island, San Diego,
CA.
For Appellant: LT Ryan Aikin, JAGC, USN.
For Appellee: Maj Tracey Holtshirley, USMC.

                            3 September 2015

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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.

PER CURIAM:

      A panel of officer members sitting as a special court-
martial convicted the appellant, contrary to his pleas, of one
specification of abusive sexual contact and one specification of
assault consummated by a battery in violation of Articles 120
and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 920 and
928. 1 The members sentenced the appellant to reduction to pay

1
  The members acquitted the appellant of a second specification of abusive
sexual contact under Charge I.
grade E-1 and a bad-conduct discharge. The convening authority
(CA) approved the sentence as adjudged and, except for the bad-
conduct discharge, ordered the sentence executed.

     The appellant raises two assignments of error: (1) that the
military judge abused his discretion when he failed to find the
two charges were an unreasonable multiplication of charges for
findings; and (2) that the appellant’s convictions on both
charges were factually and legally insufficient.

     After careful consideration of the record of trial, the
appellant’s assignments of error, and the pleadings of the
parties, we find that no error materially prejudicial to
substantial rights of the appellant occurred.

                           Background

     The events that are the subject of the charges occurred on
the evening of 23 August 2012. The victim, Mass Communication
Specialist Second Class (MC2) ER, invited the appellant, whom
she described as a co-worker and friend, to her apartment to
study for an advancement exam. The appellant was married and
there was no prior romantic or sexual relationship between the
appellant and MC2 ER. For several hours they studied,
socialized, and drank alcoholic beverages. Three of the
victim’s friends also came to the apartment that evening, two of
whom testified that the victim became progressively more
intoxicated (e.g., noting she was “very wobbly,” “slurring her
speech really bad,” had difficulty reading her phone, and had
“flipped off the couch” onto the floor). One friend recorded a
short cellphone video of the victim as she lay on the floor,
with her eyes shut, making unintelligible responses to
questions. Prosecution Exhibit 9.

     Ultimately, two of the friends departed, leaving the third
friend, Information Systems Technician Third Class (IT3) OS, the
victim, and the appellant in the apartment. MC2 ER and
witnesses all testified there was no flirting or sexual
conversation between the victim and the appellant during the
evening.

     MC2 ER began to feel sick and was photographed face down on
a table. PE 2. She thereafter went into the bathroom, shut the
door, and sat on the floor in front of the toilet. She next
remembers waking up when the appellant pushed the bathroom door
open. Her next memory is lying on her bed, with the appellant
next to her. He “was lifting up [her] shirt and pulling down

                                2
[her] bra, and ha[d] his mouth around [her] breasts.” MC2 ER
“was crying and saying [to him that] ‘he didn’t have to do this
and that [they] were friends and no a million times’.” She
testified she told him “[no] a lot . . . [and that he was
lifting up her shirt] “the whole time.” MC2 ER testified the
appellant then climbed on top of her and rubbed his erect penis
through her clothes. 2 She next remembers being alone in her
bedroom texting IT3 OS at 2357 the same night, complaining the
appellant had assaulted her.

     During the findings phase of the trial, the defense offered
no evidence other than to recall the three witnesses who
testified in the Government’s case in chief.

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

                Unreasonable Multiplication of Charges
     The appellant asserts now for the first time that
Specification 1 of Charge I, abusive sexual contact, 3 and the
single specification under Charge II, assault consummated by a
battery, 4 constitute an unreasonable multiplication of charges
for findings purposes. We disagree.

      The prohibition against unreasonable multiplication of
charges is codified in RULE FOR COURTS-MARTIAL 307(c)(4), MANUAL FOR
COURTS-MARTIAL (MCM), UNITED STATES (2012 ed.): “What is substantially
one transaction should not be made the basis for an unreasonable
multiplication of charges against one person.” This provides
trial and appellate courts a mechanism to address prosecutorial
overreaching by imposing a standard of reasonableness. United
States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001). To determine
whether the Government has unreasonably multiplied charges, we
apply a five-part test:

2
  This testimony substantially related to Specification 2 of Charge I, of
which the members found the appellant not guilty.
3
  Specification 1 of Charge I, a violation of Article 120, UCMJ, reads: In
that [the appellant] . . . did at or near Le Mesa, California, on or about 23
August 2012, commit sexual contact upon [MC2 ER] by causing bodily harm to
her, to wit: touching her breast with his mouth and tongue, and that the
[appellant] did so without the consent of the said MC2 ER.
4
  The specification under Charge II, a violation of Article 128, UCMJ, reads:
In that [the appellant] . . . did at or near Le Mesa, California, on or about
23 August 2012, unlawfully grab [MC2 ER] by grabbing her by the shirt and
pulling her shirt up with his hands.


                                      3
     (1) Did the appellant object at trial?;

     (2) Is each charge and specification aimed at
     distinctly separate criminal acts?;

     (3) Do the number of charges and specifications
     misrepresent or exaggerate the appellant's
     criminality?;

     (4) Do 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?

Id. at 338.

     First, the appellant did not object at trial. To the
contrary, even though the military judge brought up the
possibility of merging offenses during an R.C.M. 802 conference
session, Record at 11, the appellant did not move the court to
do so. Again later, the appellant’s trial defense counsel
reviewed the findings worksheet and declared it to be
appropriate. Id. at 37. Later still, when specifically asked
by the military judge, the appellant lodged no objection to the
member’s proposed findings instructions. Id. at 393.
Recognizing counsel are presumed to be competent, we reasonably
infer the decision to not object was intentionally made and will
not second-guess trial defense counsel's strategic or tactical
decisions. United States v. Morgan, 37 M.J. 407, 410 (C.M.A.
1993). Accordingly, we find the first Quiroz factor weighs
heavily in favor of the Government.

     We find the second and third factors weigh in favor of the
appellant. The Government argues the two offenses were
primarily aimed at different criminal acts — the assault
consummated by a battery specification was aimed at the
offensive touching of the victim’s clothing and the abusive
sexual contact specification alleged the appellant’s separate
sexual misconduct by placing his mouth on her breasts. We
disagree and find the Government’s reliance on Paxton and Stroud
misplaced. United States v. Paxton, 64 M.J. 484 (C.A.A.F.
2007); United States v. Stroud, No. 201100145, 2011 CCA LEXIS
482, unpublished op. (N.M.Ct.Crim.App. 7 Sep 2011) (per curiam).
In Paxton, although committed on the same child victim on the
same night, the accused’s separately charged offensive conduct

                                4
included touching the victim’s breasts, digital penetration,
fellatio, and sexual intercourse. Paxton, 64 M.J. at 490. In
Stroud, although again committed on the same child victim on the
same night, the accused’s separately charged offensive conduct
included touching the victim’s posterior and then engaging in
additional separate graphic sexual acts. Stroud, 2011 CCA LEXIS
482 at *3. In both Paxton and Stroud, neither accused was
separately charged with removing their victims’ clothes before
committing their offensive conduct, as the appellant was in this
case.

     We believe the facts of this case are more synonymous with
the holding in Solomon, than with Paxton or Stroud. United
States v. Solomon, No. 201100582, 2014 CCA LEXIS 599,
unpublished op. (N.M.Ct.Crim. App. 21 Aug 2014) (per curiam).
In Solomon, this court held the appellant’s offensive conduct of
exposing himself to his victim in order to affect the sexual
contact was one transaction which became the basis of
two separate charges, and thus found the second Quiroz factor
favored the appellant. Id. at *5-6. See also, United States v.
Britton, 47 M.J. 195, 197 (C.A.A.F. 1997) (conviction for rape
held to be multiplicious with assault with intent to commit rape
where the Article 134 offense was comprised of the accused
dragging and throwing victim as a precursor to the actual rape).
In this case, we similarly find the appellant’s act of pushing
up MC2 ER’s shirt to expose her breasts, which he then touched
with his mouth, was part of the same transaction. We weigh the
second and third factors in the appellant’s favor.

     The fourth Quiroz factor weighs in the Government’s favor
because the military judge, at the request of the appellant, and
without objection by the Government, merged the two offenses for
sentencing. Record at 516. Thus, any overlap and the potential
adverse effect on the appellant was completely eliminated. We
further hold, however, that the appellant was not prejudiced
with respect to sentencing, because the military judge treated
the offenses as a single offense for sentencing. Britton, 47
M.J. at 199. Additionally, the jurisdictional limits on
authorized punishments further prevented the appellant’s
punitive exposure from being unreasonably increased. See,
United States v. O'Neal, No. 201100307, 2012 CCA LEXIS 688,
unpublished op. (N.M.Ct.Crim.App. 17 May 2012) (per curiam).

     Finally, the fifth factor also weighs in favor of the
Government. First, the appellant concedes in his brief there is
no evidence of prosecutorial abuse and second, we find no
evidence of prosecutorial overreaching in the drafting and

                                5
charging abusive sexual contact and assault. Overall, after
balancing all the Quiroz factors, we do not find an unreasonable
multiplication of charges.

                  Legal and Factual Sufficiency
     The second assignment of error claims that the findings of
guilt to both charges 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 prosecution, a reasonable factfinder
could have found all the elements 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 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 order to convict the appellant of abusive sexual
contact, the Government must prove, beyond a reasonable doubt,
that (1) the appellant committed sexual contact upon the victim
in that he touched her breasts with his mouth and tongue and (2)
that the touching caused bodily harm as defined by Article 120
(d) and (g), UCMJ. In order to convict the appellant of assault
consummated by a battery, the Government must prove, beyond a
reasonable doubt, that (1) the appellant did bodily harm to the
victim and (2) the bodily harm was done with unlawful force or
violence as defined by Manual for Courts-Martial, United States
(2012 ed.), Part IV, ¶¶ 54b(2) and 54c(2).
     In this case, the evidence of the appellant’s guilt with
regard to both offenses is clear. At trial, in uncontroverted
testimony, the victim testified she was intoxicated, sick, and
asleep in the bathroom of her apartment; that the appellant
pushed the door open; that she later awoke in her bed to find

                                6
him lifting her shirt up and pushing her bra down; that she
tearfully and repeatedly told him “no;” that he placed his mouth
on her breasts; and that he was sexually aroused (had an
erection). Additional evidence showed the victim and the
appellant did not have a prior romantic relationship, and that
there was no flirting or sexual conversation between them in the
hours leading to the charged offenses. Finally, the Government
presented evidence, corroborated by text message exchanges, that
the victim reported the offenses to a fellow petty officer that
same evening.
     After carefully reviewing the record of trial 5 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 offenses 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.
                                 Conclusion

     The findings and the sentence as approved by the CA are
affirmed.

                                       For the Court



                                       R.H. TROIDL
                                       Clerk of Court




5
  Although the appellant asserts, via his Declaration submitted with his 31
March 2015 Motion to Attach, that the sexual contact was consensual, that the
victim was coherent, and that she was afterwards not visibly upset, we denied
that motion on 16 April 2015. It is well-established that a Court of
Criminal Appeals’ assessment of an appellant’s guilt or innocence for legal
and factual sufficiency is limited to the evidence presented at trial.
United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993) and United States v.
Thomas, 43 M.J. 550, 568 (N.M.Ct.Crim.App 1995) (en banc). We also
simultaneously denied the appellant’s motion to attach photographs of text
messages between the victim and appellant shortly after the offenses
occurred.

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