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

                                 Before
              F.D. MITCHELL, J.A. FISCHER, M.K. JAMISON
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                        RECO D. COLE
            GUNNERY SERGEANT (E-7), U.S. MARINE CORPS

                            NMCCA 201300318
                        SPECIAL COURT-MARTIAL

Sentence Adjudged: 15 April 2013.
Military Judge: LtCol Gregory L. Simmons, USMC.
Convening Authority: Commanding Officer, Headquarters
Battalion, 1st Marine Division, Camp Pendleton, CA.
Staff Judge Advocate's Recommendation: LtCol D.P. Harvey,
USMC.
For Appellant: CDR Christopher Geis, JAGC, USN.
For Appellee: LT Ann Dingle, JAGC, USN.

                            31 January 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.

PER CURIAM:

     A military judge, sitting as a special court-martial,
convicted the appellant, pursuant to his pleas, of two separate
charges of violating a lawful general order, in violation of
Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892.
The appellant was sentenced to five months’ confinement,
reduction to pay grade E-2, and a bad-conduct discharge. The
convening authority (CA) approved the adjudged sentence, but
suspended confinement in excess of 100 days, in accordance with
a pretrial agreement.

                                 Background

     On 19 September 2012, charges were preferred against the
appellant, a gunnery sergeant in the United States Marine Corps,
alleging a violation of Article 1165, U.S. Navy Regulations, by
having an unduly familiar relationship with eight subordinate
Marines whom he supervised. 1 On 18 January 2013, an additional
charge was preferred against the appellant alleging a violation
of ¶ 4(a)(1)(a), Marine Corps Order 1000.9A, by wrongfully
committing sexual harassment.

     The circumstances surrounding the appellant’s violation of
the Department of the Navy’s fraternization policy stemmed from
a party the appellant held at his home sometime between 1 March
and 1 April 2011 to which he invited eight junior Marines whom
he supervised in his unit. The inappropriate conduct committed
by the appellant during the party included: playing drinking
games with the junior Marines; requesting that a subordinate
female Marine strip down to her bra and panties and join him in
the hot tub; watching pornographic movies with junior Marines;
arranging for two female Marines to have sexual relations with
each other in his presence and attempting to engage in oral sex
with one of them; and, having sexual intercourse with a female
private first class.

     The sexual harassment charge and specification involved
inappropriate comments made in front of Corporal (Cpl) MG while
she and the appellant were assigned to the Communications
Company, Headquarters Battalion, 1st Marine Division at Camp
Pendleton from 1 November 2010 until 30 November 2011. The
sexually harassing behavior included the appellant showing her
photos of shirtless men and asking her thoughts on them;
commenting about her underwear during a health and comfort
inspection; and regaling her and others with stories about his
sexual encounters with female Marines.

     The appellant pleaded guilty to these two charges and
corresponding specifications.


1
  The appellant was also charged with violating Paragraph 4(a)(1)(g), Marine
Corps Order 1700.22E, by knowingly providing alcohol to minors; and violating
Article 120 of the UCMJ by having sex with a female subordinate who was
substantially incapacitated. These two charges were ultimately withdrawn and
dismissed without prejudice prior to arraignment.
                                      2
      As part of the Government’s case in aggravation during
presentencing, the trial counsel called Cpl MG who testified as
to how the actions of the appellant created a hostile work
environment for her. The evidence elicited from Cpl MG by the
trial counsel included an explanation of the types of
photographs the appellant showed to her, and the fact that the
appellant once slapped her face claiming he saw a bug on her
cheek. The trial defense counsel objected to the former line of
questioning arguing that it would elicit uncharged misconduct.
Record at 78. The trial counsel explained that this testimony
was intended to show, under RULE FOR COURTS-MARTIAL 1001(b)(4) ,
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), the negative impact
that it had on Cpl MG’s work environment and the “. . . social,
psychological, and medical impact on the victim.” Id. at 80.
After being informed by the military judge that he found the
trial counsel’s argument persuasive, the trial defense counsel,
after reviewing the rule for himself, withdrew the objection.
Id. Prior to allowing the testimony, the military judge
conducted the appropriate analysis in accordance with MILITARY RULE
OF EVIDENCE 403, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), and
determined that the probative value outweighed the prejudicial
effect.

     During argument on sentencing, the trial counsel, in
characterizing the appellant’s misconduct, described him as “a
staff NCO . . . who intimidates and assaults other Marines . . .
.” Id. at 115. Before the trial defense counsel began argument
on sentence, the following exchange occurred between him and the
military judge:

     DC: Before argument, sir, I would like to loge (sic)
     one objection to the government’s characterization of
     any of [the appellant’s] conduct as an assault, which
     defense’s position is a sole and separate offense that
     was not charged, sir.

     MJ: Okay. I did note that. I permitted that to come
     in as aggravation because I believe, as I said before,
     it was relevant, in that, it was the same timeframe
     and between the same parties that the accused was
     charged with in the additional charge.

     DC: I understand, sir.

     MJ: Having done a 403 balancing test on that and all
     of the other evidence, I find its probative value is
     not substantially outweighed by the danger of unfair

                                   3
     prejudice. I don’t believe that it was unfair at all
     for me to get a picture of the interaction between the
     two and the [sic] I believe that the probative value
     that outweighs any danger of unfair prejudice. So the
     balance does not, in order (sic) to the benefit of the
     defense and insofar as that is evidentiary rule
     favoring admission that is the way that I find that it
     works in this instance [sic].

Id. at 116-17.

     In his sole assignment of error, the appellant contends
that the military judge erred by allowing Cpl MG’s testimony of
being slapped in the face by the appellant, and argument by the
trial counsel who classified it as an assault, because it was
uncharged misconduct. We disagree.

     Having reviewed the parties’ pleadings and the record of
trial, we are satisfied that no error materially prejudicial to
the substantial rights of the appellant occurred. Arts. 59(a)
and 66(c), UCMJ.

                      Aggravation Evidence

     The trial defense counsel did not object to Cpl MG’s
testimony concerning the appellant slapping her face, but did
object to the trial counsel calling it an assault in closing
argument on sentencing. We review a military judge’s decision
to admit evidence during sentencing for an abuse of discretion.
United States v. Ashby 68 M.J. 108, 120 (C.A.A.F. 2009). In the
absence of an objection by the trial defense counsel, we review
for plain error. United States v. Moran 65 M.J. 178, 181
(C.A.A.F. 2007). To establish plain error, the appellant must
demonstrate that “(1) an error was committed; (2) the error was
plain, clear, or obvious; and (3) the error resulted in material
prejudice to an appellant’s substantial rights.” Id at 181.

     R.C.M. 1001(b)(4) sets the limitations as to what evidence
may be offered in aggravation. Under this provision:

     The trial counsel may present evidence as to any
     aggravating circumstances directly relating to or
     resulting from the offenses of which the appellant has
     been found guilty. Evidence of aggravation includes,
     but is not limited to, evidence of financial, social,
     psychological, and medical impact on or cost to any
     person or entity who was the victim of an offense

                                4
    committed by the accused and evidence of significant
    adverse impact on the mission, discipline, or
    efficiency of the command directly and immediately
    resulting from the accused’s offense.

     In the appellant’s case, the military judge stated on the
record that he allowed the aforementioned evidence to get a
better picture of the appellant’s interactions with Cpl MG,
which lead to a hostile work environment. He additionally
stated that he conducted the appropriate MIL. R. EVID. 403
balancing test and determined that the probative value
outweighed the prejudicial effect. When a military judge
conducts a proper balancing test under MIL. R. EVID. 403 on the
record, his ruling will not be overturned absent a clear abuse
of discretion. United States v. Stephens, 67 M.J. 233, 235
(C.A.A.F. 2009). We find that the military judge did not commit
error in allowing Cpl MG to testify that appellant slapped her
as it represented a continued course of inappropriate behavior
directed at her, thus creating a hostile work environment – one
of the charges of which the appellant pleaded guilty. We find
that this testimony fits squarely within the ambit of R.C.M.
1001(b)(4). As such, we find trial counsel’s argument a fair
comment on the evidence and not improper. R.C.M. 1001(g).

     Finally, even if we found that this was error, the
appellant has not established material prejudice to his
substantial rights. The appellant contends that his sentence to
a bad-conduct discharge, confinement for five months, and
reduction to pay grade E-2 is overly severe and a direct result
of the uncharged misconduct evidence allowed by the military
judge during sentencing. We find this argument unpersuasive
and, although not separately assigned as error, we find the
sentence awarded appropriate for these offenses and this
offender, and decline to grant relief.

                           Conclusion

    We affirm the findings and sentence as approved by the CA.

                                For the Court




                                R.H. TROIDL
                                Clerk of Court


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