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

                                   Before
                K.J. BRUBAKER, J.A. FISCHER, T.H. CAMPBELL
                          Appellate Military Judges

                            UNITED STATES OF AMERICA

                                               v.

                           JOSE I. CAUDILLO
                 LANCE CORPORAL (E-3), U.S. MARINE CORPS

                                 NMCCA 201500197
                             GENERAL COURT-MARTIAL

Sentence Adjudged: 11 February 2015.
Military Judge: CDR Marcus Fulton, JAGC, USN.
Convening Authority: Commanding General, II Marine
Expeditionary Force, Camp Lejeune, NC.
Staff Judge Advocate's Recommendation: Col G.W. Riggs,
USMC.
For Appellant: LT Ryan Aikin, JAGC, USN.
For Appellee: LCDR Catheryne Pully, JAGC, USN; Maj Tracey
Holtshirley, USMC.

                                  29 February 2016

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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:
       General court-martial officer and enlisted members convicted the appellant of assault
consummated by battery, in violation of Article 128, Uniform Code of Military Justice, 10
U.S.C. § 928—as the lesser included offense of abusive sexual contact alleged under Article 120,
UCMJ, 10 U.S.C. § 920. The convening authority approved the panel’s announced sentence of a
bad-conduct discharge. The appellant asserts the discharge is inappropriately severe. We
disagree.
                                           Background
        As a Friday night party in the appellant’s barracks room was ending, around 0330, Lance
Corporal (LCpl) D.D. fell asleep in a chair listening to the appellant’s discussion with the only
other remaining guest. He awoke to the appellant lifting him under the arms from the chair.
Everyone else was gone. The appellant said LCpl D.D. could sleep in his on-duty roommate’s
bed. Once in the bed, LCpl D.D. felt the appellant place a blanket over him. LCpl D.D. next
awoke to the appellant entering the bed and propping up on one forearm beside him. The room
was dark except for the light through an adjoining bathroom’s open door.
        LCpl D.D. testified that after turning down the blanket, the appellant “took his hand and
put it on my stomach and rubbed up and down a couple times, and then went from there to right
above my knee, and then rubbed from there up the inside of my thigh and then to my groin area,
and he spent maybe a second or two on my groin area and then went up above my beltline....”1
When the appellant’s hand reached his waistline, LCpl D.D. sprang from the bed and pushed him
against the wall by the throat.
        The brief, wordless confrontation ended with the appellant indicating he wanted to go to
the bathroom. Upon hearing the appellant urinating in the bathroom, LCpl D.D. quickly put on
the shoes previously removed by the appellant as he slept, grabbed a guitar he had brought to the
party, and literally ran to his own barracks building. There he tried to reach his fire team leader
and two friends to discuss what had happened. In a panic, he made 32 phone calls between 0408
and 0442 before finally reaching someone at 0445. He sent nine text messages to his fire team
leader between 0409 and 0457, but got no response.
        The appellant contended, though cross-examination, that several Marines watched an
adult female in a sexually explicit, homemade video on LCpl D.D.’s cell phone during the party,
but that he had not gotten to see it. During closing arguments, he portrayed the bed incident as
his effort to retrieve LCpl D.D.’s phone in order to watch that video. The argument was at odds
with LCpl D.D.’s testimony that, instead of feeling like the appellant “was patting or looking for
something,” the appellant “pretty much felt and cupped my penis and testicles, and squeezed two
or three times.”2 LCpl D.D. also explained that where the appellant rubbed “wasn’t even close”
to the phone located in his “fairly shallow” front pocket along the seam of his pants.3 “An
imprint on the jeans” has even developed because “the phone has been in there for so long.”4
                                            Discussion
        We conduct de novo review for sentence appropriateness, United States v. Lane, 64 M.J.
1, 2 (C.A.A.F. 2006), which “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). It requires our “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) (citation and internal quotation marks omitted).

1
    Record at 526-27.
2
    Id.
3
    Id. at 619.
4
    Id. at 615.
                                                 2
Despite our significant discretion in reviewing the appropriateness and severity of the adjudged
sentence, we may not engage in acts of clemency. United States v. Nerad, 69 M.J. 138, 146
(C.A.A.F. 2010).
        The members acquitted the appellant of having a sexual intent in touching LCpl D.D.
Nonetheless, the assault and battery occurred while LCpl D.D. was vulnerable, under
circumstances largely fostered by the appellant’s allowing LCpl D.D. to remain with him—
instead of waking LCpl D.D. and having him return to his own nearby barracks like all of the
other party guests. LCpl D.D.’s reaction and their command’s involvement were immediate.
For sentencing, the Government focused on the consequential loss of trust in each other by
Marines sleeping in the barracks, and the need for general and specific deterrence. The
appellant’s unsworn statement included an apology for “violating [LCpl D.D.’s] trust,”5 and
hope that LCpl D.D. did not feel like the appellant had following an abuse incident as a child.6 It
also detailed the appellant’s difficulties during the previous year—including the death of his
older sister, his excessive alcohol use, the removal from his command, and his isolation before
trial. He said, “I hope when this is all over, I’m finally able to spend some time with my mother,
knowing that she has a serious medical condition as well. . . . I want to be there for my parents
and especially my younger sister.”7
       Informed of the appellant’s 143 days of pretrial confinement, the members imposed only
a bad-conduct discharge instead of the Government’s requested sentence of the maximum
available confinement (six months), reduction to pay grade E-1, and the discharge. The
appellant’s substantial clemency matters again included materials related to his pre-service
volunteer work and his family’s circumstances. The convening authority considered those
matters before approving the sentence announced at trial.
       With individualized consideration of the appellant, the nature and seriousness of his
offense, his overall record of service, and all the matters within the record of trial, we find the
convening authority approved an appropriate sentence. We conclude that the findings and
sentence are correct in law and fact and that no error materially prejudicial to the appellant’s
substantial rights occurred. Arts. 59(a) and 66(c), UCMJ.
                                                   Conclusion
            The findings and sentence as approved by the convening authority are affirmed.


                                                     For the Court



                                                    R.H. TROIDL
                                                    Clerk of Court

5
    Id. at 874.
6
  “I remember wanting to do something about it, but not really being able to, and it’s—it’s a feeling of hopelessness
that—that comes to me when thinking of what happened to me on that incident . . . .” Id. at 868.
7
    Id. at 874-75.
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