              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.

                         DAVID C. STREET
                  SERGEANT (E-5), U.S. MARINE CORPS

                           NMCCA 201300470
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 14 August 2013.
Military Judge: LtCol Chris Thielemann, USMC.
Convening Authority: Commanding General, 3d Marine Aircraft
Wing, Marine Corps Air Station Miramar, San Diego, CA.
Staff Judge Advocate's Recommendation: Col K.C. Harris,
USMC.
For Appellant: Capt David Peters, USMC.
For Appellee: Maj Crista D. Kraics, USMC.

                            15 January 2015

     ---------------------------------------------------
                    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, consistent with his pleas, of five
specifications of violating lawful general orders prohibiting
fraternization, providing alcohol to minors, and sexual
harassment, one specification of abusive sexual contact, and one
specification of obstruction of justice in violation of Articles
92, 120, and 134, Uniform Code of Military Justice, 10 U.S.C.
§§ 892, 920, and 934. The military judge convicted the
appellant, contrary to his pleas, of two specifications of
forcible sodomy in violation of Article 125, UCMJ, 10 U.S.C.
§ 925. The military judge sentenced the appellant to reduction
to pay grade E-1, confinement for ten years, and a dishonorable
discharge. The convening authority approved the adjudged
sentence, but suspended all confinement in excess of twenty-four
months in accordance with a pretrial agreement, and, except for
the punitive discharge, ordered it executed.

     The appellant avers that his forcible sodomy convictions
are legally and factually insufficient and that the military
judge was biased.1

     After reviewing the record of trial and the pleadings of
the parties, we find partial merit in the appellant’s claim of
factual sufficiency as it relates to one of his forcible sodomy
convictions. After taking corrective action in our decretal
paragraph and reassessing the sentence, we conclude that the
remaining findings and the reassessed sentence are correct in
law and fact and that no error materially prejudicial to the
substantial rights of the appellant remains. Arts. 59(a) and
66(c), UCMJ.

                                   Background

     The offenses at issue in this case stem from the
appellant’s interactions over two evenings with different junior
Marines. The appellant was a 32-year-old Marine corporal when




1
    The appellant raises the following Assignments of Error (AOE):

I – At court-martial the Government must prove every element beyond a
reasonable doubt. Here, the military judge convicted [the appellant] of
sodomizing DR by force and without consent, despite hearing evidence that DR
consented to the sexual contact. Is [the appellant’s] conviction for the
sole specification of Additional Charge V legally and factually sufficient?

II – Is [the appellant’s] conviction for Specification 4 of Additional Charge
III legally and factually sufficient?

III – An accused is entitled to an impartial military judge at court-martial.
Here the military judge expressed disgust with [the appellant’s] defense
throughout the trial. He then awarded a sentence that included a
dishonorable discharge and ten years of confinement. Was the military judge
actually biased against [the appellant].

AOEs II and III were raised pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982).


                                        2
he first met Lance Corporal (LCpl) DR2 and LCpl BH as they each
checked into the same unit as the appellant.

LCpl BH

     In late October 2008, LCpl BH attended a party at the
appellant’s house during which LCpl BH consumed a large quantity
of alcohol, describing his level of intoxication that evening as
a “ten out of ten.”3 On direct examination, LCpl BH testified
that he blacked out and awoke the next morning in the
appellant’s bed. LCpl BH then testified as follows:

        Q: Okay. And describe then the circumstances of your
           waking up.
        A: I woke up pretty early. The sun was just coming
           up. Wasn’t sure – I’m not going to say, you know,
           the exact time; but I would say anywhere from 6:00
           to 7:00a.m. I woke up in my boxers. No idea why I
           was just wearing my boxers. I usually, you know, I
           usually don’t do that at someone else’s house. I
           never do that. But I woke up feeling really,
           really weird. I didn’t want to say anything
           because I didn’t want it to be awkward. I wake up
           to [the appellant]. I don’t want to say anything –
           I don’t want to say he said anything; but, you
           know, he was just asking me how I felt and
           everything. He was the only one there. There was
           nobody – there was no cars or anything at the
           house. It was just me and him. I felt just crazy
           awkward there. I didn’t – I really didn’t want to
           spend any more time than I had to be there sir.

        . . . .

        Q: Sure. [The appellant] ever tell you anything that
           had happened that night?
        A: He never said anything about that. Pretty much I –
           you know, as a Marine, I had my pride. I didn’t
           say anything. And he never said anything about the
           night to me that would make it awkward. We still
           had a, you know, not a relationship, but a job, you
           know. We still functioned properly at work. We
           never had any issues. There was no awkward times

2
  LCpl DR was already discharged from the Marine Corps by the time this case
went to trial.
3
    Record at 383.

                                      3
            or anything where it would cause an issue at work.
            But, yeah, I will always remember that night.

        Q: Sure. You said you had a weird feeling when you
           woke up in the morning. Can you describe that for
           us?
        A: It was kind of like I – I had like a bad feeling
           where something unwanted happened. Whether I
           dreamed it, whether it happened in real life,
           whether I was going in and out, I have no idea.
           But I just – it was just a really bad feeling that
           somebody had done something that I didn’t want.

        Q: Had done what?
        A: Forced himself on me, sir.

        Q: You felt like [the appellant] had forced himself on
           you?
        A: Yes, sir.4

LCpl BH provided no further clarification on direct examination.
On cross-examination LCpl BH testified to the following:

        Q: [The appellant] wasn’t in the room when you woke
           up; correct?
        A: No, sir. It was just me alone in the bed

        Q: You didn’t have any indication that you had
           participated in any sort of sexual activity?
        A: Not that I can recall, sir. I did have, like I said,
           like, bad dreams or whatever. I don’t know if it was me
           going in and out of the drunkenness; but it – I want to
           say this the right way, sir. It did seem to me like,
           you know, I was taken advantage of.5

On redirect examination, LCpl BH testified as follows:

        Q: In fact this, today, is the first time you’ve ever
           admitted to anybody what you thought that weird
           feeling meant; is that right?
        A: Yes, sir.

        Q: Okay.     Was it hard to admit?

4
    Id. at 386-88.
5
    Id. at 391.


                                      4
          A: It’s really hard, sir.

          Q: It’s hard – was it a hard thing to come to grips with at
             the time?
          A: Yes, sir.

          . . . .

          Q: Did you have that same feeling all along from the time
             that you woke up that morning?
          A: Yes, sir. It’s been on my mind. If I’m going to say,
             I’m going to say it today.

          Q: Then say for us today what it is that you believe
             happened to you that night?
          A: It’s hard for me to say as a Marine, as a man; but I do
             recall [the appellant] doing oral sex with me just – I
             couldn’t do anything. I just saw it. And I remember
             him getting on top of me and trying to have sex. And I
             don’t know why I couldn’t do anything. I just – it just
             happened, sir.6

     Additionally, the Government called Sergeant (Sgt) A as a
witness and he testified that, along with LCpl BH and the
appellant, he attended a Halloween party at a fellow Marine’s
off base residence in late October 2008. Sgt A further
testified that a couple of days after the party, the appellant
told him that he took LCpl BH back to his house after the
Halloween party and performed oral sex on him while LCpl BH was
passed out that night.7

LCpl DR

     LCpl DR testified that he struck up a friendship with the
appellant shortly after checking into the unit in August of
2008.8 He indicated that he and the appellant “hung out a lot”,
“talked a lot”, “[would] go out with friends to bars”, and were
“[r]eally good friends.”9   LCpl DR further testified that one
day in early 2009, he went to the appellant’s house to hang out

6
    Id. at 393-94
7
    Id. at 315.
8
    Id. at 357.
9
    Id.


                                      5
and drink alcohol.10 That evening, LCpl DR and the appellant
split a bottle of rum, mixing it with soda, and LCpl DR
indicated that the appellant had about four drinks from the
bottle and he drank most of the rest of the bottle, and became
intoxicated. He further stated he was in no condition to
drive.11

     LCpl DR testified that shortly after smoking a cigarette
that evening he became dizzy, experienced blurry vision, and had
difficulty moving around.12 LCpl DR stated that his memory of
what happened next was hazy, but the next distinct memory he had
was the appellant performing “oral sex” on him.13 According to
LCpl DR, he was standing up in the appellant’s bedroom for 3-4
minutes while the appellant performed oral sex on him.14 LCpl DR
testified that he was “barely conscious” during this act, but
stated during cross-examination that he thought he was capable
of saying the word “no” and capable of stepping back from the
appellant.15 He further testified that it was possible that he
flirted with the appellant that evening and he was not sure
whether he consented to the sexual activity.16

     LCpl DR testified that his memory then faded out and he
next awakened in the morning to the appellant performing “oral
sex” on him again while he was in the appellant’s bed.17 LCpl DR
felt a “horrible hangover” and asked the appellant to stop, and
the appellant complied.18




10
     Id.
11
     Id. at 358-60.
12
     Id. at 362.
13
     Id. at 362-63.
14
     Id. at 371, 379.
15
     Id. at 371-372.
16
     Id. at 373-74.
17
     Id. at 363.
18
     Id. at 363-64.


                                6
                                   Discussion

Legal and Factual Sufficiency

     In his first two AOEs, the appellant challenges the legal
and factual sufficiency of the evidence to support the findings
of guilty to forcible sodomy of LCpl DR and LCpl BH. In
accordance with Article 66(c), UCMJ, this court reviews 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 fact
finder could have found all the essential elements beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319
(1979). To find the evidence factually sufficient we,
ourselves, having weighed the evidence in the record of trial
and making allowances for not having personally observed the
witnesses, must be convinced of the appellant's guilt beyond a
reasonable doubt. United States v. Turner, 25 M.J. 324, 325
(C.M.A. 1987).

     With regard to the legal and factual sufficiency of the
evidence to prove forcible sodomy of LCpl DR, the appellant
argues that the Government failed to establish the elements of
force and lack of consent. We disagree. While LCpl DR made
some concessions during cross-examination about what he could or
might have done in response to the appellant’s sexual advances
on the night in question, the sum of his testimony established
that he was heavily intoxicated at the time and was either
substantially incapacitated or asleep while the appellant
performed oral sex on him.19 In such circumstances, no greater
force is required than that necessary to achieve penetration.20

19
  We note that throughout the record the terminology “oral sex” was used to
establish the unnatural carnal copulation element under Article 125, UCMJ.
While not raised as an AOE, we recognize in some circumstances such language,
without more, may be insufficient to establish this element. However, in
this case we find a plain, ordinary, common sense reading of the LCpl DR’s
testimony provides circumstantial, if not direct, evidence that the appellant
placed LCpl DR’s penis in his mouth. MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012
ed.), Part IV, ¶ 51c.
20
  See United States v. Grier, 53 M.J. 30, 33 (C.A.A.F. 2000) (holding no
instructional error where military judge instructed the members that if
victim is incapable of consenting due to intoxication, "no greater force is
required that that necessary to achieve penetration"); United States v.
Mathai, 34 M.J. 33, 36 (C.M.A. 1992) (holding that evidence of rape was
sufficient where the record established that the victim was unconscious due
to alcohol intoxication, "and that [the appellant] reasonably knew or should
have known that she had not consented").

                                         7
Viewing the evidence in a light most favorable to the Government
we are convinced that a rational trier of fact could have found
the elements of the offense beyond a reasonable doubt. In
addition, we have carefully considered all the evidence of
record and we are convinced beyond a reasonable doubt of the
appellant's guilt to the forcible sodomy of LCpl DR.

     Additionally, the appellant argues that the Government
failed to meet its burden to prove forcible sodomy of LCpl BH.
We agree. Simply put, LCpl BH’s inconsistent testimony, coupled
with the lack of specificity in the record to further describe
what he meant when he testified that the appellant “was doing
oral sex with me,” leaves us unconvinced of the appellant’s
guilt to this offense beyond a reasonable doubt. While Sgt A
testified that the appellant admitted to him that he “performed
oral sex” on [LCpl BH], it was clear Sgt A was referring to an
entirely separate night than LCpl BH testified to at trial, one
that LCpl BH could not recall and provided no further
information on. Thus, we find the evidence introduced at trial
factually insufficient to support the conviction for forcible
sodomy of LCpl BH.

Impartiality of the Military Judge

     In his third assignment of error, the appellant argues the
military judge was actually biased against him because he “made
several statements on the record that underscored his disgust
with Sgt Street and his defense” and then gave him a harsh
sentence. Appellant’s Brief of 20 Mar 2014 at 16.

     When, as in this case, an appellant “does not raise the
issue of disqualification [of the military judge] until appeal,
we examine the claim under the plain error standard of review.”
United States v. Martinez, 70 M.J. 154, 157 (C.A.A.F. 2011)
(citing United States v. Jones, 55 M.J. 317, 320 (C.A.A.F.
2001)). “Plain error occurs when (1) there is error, (2) the
error is plain or obvious, and (3) the error results in material
prejudice.” Id. (citation omitted).

      “‘[W]hen a military judge's impartiality is challenged on
appeal, the test is whether, taken as a whole in the context of
this trial, a court-martial’s legality, fairness, and
impartiality were put into doubt’ by the military judge’s
actions.” Id. at 157-58 (quoting United States v. Burton, 52
M.J. 223, 226 (C.A.A.F. 2000)); see RULE FOR COURTS-MARTIAL 902(a),
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). “The test is
objective, judged from the standpoint of a reasonable person

                                  8
observing the proceedings.” Burton, 52 M.J. at 226 (citation
omitted). “Failure of the defense to challenge the impartiality
of a military judge may permit an inference that the defense
believed the military judge remained impartial.” Id. (citing
United States v. Hill, 45 M.J. 245, 249 (C.A.A.F. 1996)).

     Applying the above principles to this case, we hold the
military judge was not disqualified. While the military judge
expressed frustration with both trial and defense counsel at
certain points during trial, none of his comments were directed
at the appellant.21 The appellant has neither shown plain and
obvious error nor shown any prejudice to him from the military
judge’s comments. Accordingly, this AOE is without merit.

                         Sentence Reassessment

     The guilty finding for Specification 4 of Additional Charge
III is set aside and that specification is dismissed with
prejudice. As the appellant now stands convicted of only one of
the two forcible sodomy offenses, this court must next determine
whether this action has resulted in a “‘dramatic change in the
penalty landscape’ [which] gravitates away from the ability to
reassess” the sentence. United States v. Buber, 62 M.J. 476,
479 (C.A.A.F. 2006) (quoting United States v. Riley, 58 M.J.
305, 312 (C.A.A.F. 2003)). We find that there has not been a
dramatic change in the sentencing landscape and that we are able
to reassess the sentence in accordance with the principles set
forth in United States v. Moffiet, 63 M.J. 40 (C.A.A.F. 2006),
United States v. Cook, 48 M.J. 434 (C.A.A.F. 1998), and United
States v. Sales, 22 M.J. 305 (C.M.A. 1986).

     Here, notwithstanding our action in setting aside one of
the two forcible sodomy offenses, the record as a whole and the
facts adduced on the remaining affirmed offenses give ample
justification for the sentence. The record is clear that the
appellant repeatedly targeted and then sexually assaulted
certain junior, under-aged Marines from his unit after
wrongfully providing them with alcohol. Pursuant to a pre-trial
agreement (PTA), the appellant plead guilty to and was found
guilty of sexually assaulting one Marine, sexually harassing
another, wrongfully providing alcohol to under-aged Marines on a
number of occasions and impeding an investigation into his
misconduct – where he faced 22 years of confinement. The PTA
provided that the Government could go forward with the two
remaining forcible sodomy offenses to which the appellant pled

21
     Record at 443-48.

                                   9
not guilty, but provided that the CA would suspend all
confinement in excess of twenty-four months. The appellant
faced the same authorized maximum punishment if he were
convicted of at least one of the two forcible sodomy offenses –
life without the possibility of parole.

     For these reasons, we are confident that the military judge
would have adjudged, and the CA would have approved, a sentence
at least as severe as ten years confinement, reduction to pay
grade E-1 and a dishonorable discharge. Art. 66(c), UCMJ;
United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013); Sales,
22 M.J. at 398.

                           Conclusion

     The finding as to Specification 4 of Additional Charge II
having been set aside and that specification dismissed with
prejudice, the remaining findings are affirmed. The sentence as
reassessed is affirmed.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




                               10
