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

                                 Before
              K.J. BRUBAKER, M.C. HOLIFIELD, A.C. RUGH
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                      NATHANIEL L. COSBY
             MASTER SERGEANT (E-8), U.S. MARINE CORPS

                           NMCCA 201400318
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 26 April 2014.
Military Judge: Col J.K. Carberry, USMC.
Convening Authority: Commander, U.S. Marine Corps Forces,
Pacific, Camp H.M. Smith, HI.
Staff Judge Advocate's Recommendation: LtCol W.N. Pigott,
USMC.
For Appellant: C. Ed Massey, Civilian Defense Counsel; LT
David Warning, JAGC, USN; LT Jessica L. Ford, JAGC, USN.
For Appellee: Capt Cory A. Carver, USMC; LCDR Keith B.
Lofland, JAGC, USN.

                            31 August 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.

HOLIFIELD, Judge:

     A panel of officer and enlisted members, sitting as a
general court-martial, convicted the appellant, contrary to his
pleas, of murder while engaging in an inherently dangerous act
and obstruction of justice, in violation of Articles 118 and
134, Uniform Code of Military Justice, 10 U.S.C. §§ 918 and 934. 1
The members sentenced the appellant to confinement for life and
a dishonorable discharge. The convening authority (CA) approved
the sentence as adjudged and, except for the dishonorable
discharge, ordered it executed.

    The appellant raises four assignments of error (AOE):

    (1) The appellant’s sentence is inappropriately severe;

    (2) The admission of a sentencing exhibit unduly inflamed
       the passion of the members and was plain error;

    (3) The CA’s denial of the appellant’s individual
       military counsel (IMC) request was error; and,

    (4) The appellant’s conviction is legally and factually
       insufficient.

     After careful consideration of the record of trial and the
written submissions of the parties, we find the findings and
sentence are correct in law and fact, and we find no error
materially prejudicial to the substantial rights of the
appellant. Arts. 59(a) and 66(c), UCMJ.

                                 Background

     The appellant, stationed in Japan, traveled to Hawaii on 15
May 2013 for temporary additional duty with Joint POW/MIA
Accounting Command (JPAC). Upon arriving in Hawaii, the
appellant purchased a pay-as-you-go cellular telephone and
rented a white Chevrolet Traverse. The appellant then reported
to JPAC and, after being told to return at 0900 the next
morning, was released for the day.

     After checking into the Aston Hotel in Waikiki, at
approximately 1630 the appellant went into town. His first stop
was a restaurant where he ate and consumed alcohol for
approximately five to six hours. He next went to a bar, Kelley
O’Neil’s, where he continued to drink heavily. At approximately
0345, the appellant exited the bar and met IH, the deceased
victim, standing directly outside of Kelley O’Neil’s.
Surveillance video obtained from the bar shows the appellant


1
   The appellant was acquitted of unpremeditated murder. After a finding of
guilty to attempting to patronize a prostitute, the military judge dismissed
that charge for failure to state an offense.
                                      2
having a brief conversation with IH, and then walking with her
in the direction of his hotel.

      Surveillance footage obtained from the Aston shows the
appellant and IH entering the hotel and riding the elevator
together. This was the last time IH was seen alive.

     IH was visiting Hawaii with a boyfriend, MM, and a
girlfriend, JG. Both IH and JG worked as prostitutes, and IH
was working as such when she met the appellant. When working,
IH would stay in contact with her friends via text message. On
the evening of 15-16 May, one of the last text messages IH sent
was to MM: “Going to the Aston.” 2

     Neither JG nor MM heard from IH again. They became
concerned and, after contacting the local hospital and jails to
determine if IH had been injured or arrested, filed a missing
persons report with the Honolulu Police Department (HPD).

     At approximately 0600 on 16 May, video surveillance footage
shows the appellant exiting the hotel rolling a large plaid
duffel bag and loading it into his rental car. To exit his
floor, the appellant used the employee service elevator, which
was not equipped with cameras. He was captured, however, by the
hotel’s cameras on the upper level lobby, the elevator to the
lower level lobby, and again in the lower level lobby as he
departed. Cell phone records show the appellant made phone
calls at 0811 and 0813 via a cell phone tower located on the
west side of Oahu, approximately an hour’s drive from Waikiki.
The appellant was next seen at approximately 0900 reentering the
hotel without the plaid duffel bag. He exited the hotel
eighteen minutes later wearing his uniform, and reported to JPAC
at approximately 0945.

     When the appellant arrived at work, members of his command
observed a fresh cut on the right side of the appellant’s
forehead. His explanation for his late arrival and injury was
that he “woke up late, looked at the clock, jumped out of bed,
ran around the corner, slipped on the rug, and hit his face on
the corner of the dresser in his hotel room.” 3 The appellant
remained at work for a few hours and was released.

     That evening, just after midnight, the appellant purchased
nearly 19 gallons of gas for his rental vehicle. He then
2
    Record at 175.
3
    Id. at 280.
                                3
returned to the Aston hotel, where he is seen on video carrying
the plaid duffel bag. The next morning he checked out of the
Aston and checked into the Navy Lodge. The appellant spent most
of his remaining time on the island in his room, although he did
seek medical attention at a military clinic for lacerations on
both his forehead and left forearm. He told medical personnel
that he suffered the injuries at the beach when waves tossed him
into some coral. Before departing on 20 May for a scheduled
JPAC mission to China, the appellant left several of his
possessions, including the plaid duffel bag, at the home of
Sergeant First Class (SFC) MS, a member of JPAC.

     At 1735 on the day the appellant departed Hawaii, a young
boy discovered IH’s naked body in a remote area on the west side
of the island. The location was approximately four miles from
the tower the appellant’s cell phone utilized the morning of 16
May. The boy’s family contacted the authorities and the HPD
began its investigation. HPD was able to make a preliminary
identification based on the missing person report JG and MM
filed. An autopsy revealed the manner of IH’s death was
homicide by “injury to the neck.” 4 A forensic entomologist
opined that IH’s body was not exposed to the elements until
approximately midnight on the day she disappeared.

     The investigation led HPD to the appellant’s Aston hotel
room. A forensic search revealed only a small blood stain on a
curtain. HPD later located and searched the Chevrolet Traverse
the appellant had rented. A dog trained to detect human remains
“alerted” towards the rear of the vehicle. The investigation
also revealed the video surveillance and credit card receipts
that led HPD directly to the appellant. When the appellant
returned from China on 5 June, he was met at the airport arrival
gate by HPD detectives.

     In response to HPD’s questioning, the appellant admitted
that he had met IH on 15 May at Kelley O’Neil’s. The appellant
stated he knew IH was a prostitute and that he took her to his
hotel room. He claimed, however, that when he woke the next
morning, IH had already departed. He denied that the injuries
he sustained were from a struggle with IH, repeating his claim
that he received the cuts while body surfing at a local beach.
He denied any knowledge of IH’s murder. The appellant was then
released into military custody.




4
    Id. at 321.
                                4
     HPD detectives later retrieved the plaid duffel bag from
SFC MS and obtained a search warrant to test the bag. Forensic
testing indicated that IH could be a possible contributor to the
DNA profile found in the duffel bag. The appellant was arrested
on 20 June.

     At trial, the appellant testified to a significantly more
comprehensive version of events. The appellant stated that he
drank alcohol for ten straight hours from the night of 15 May
into the early morning hours of 16 May. Due to this alcohol
use, he had only fragmented memories of departing Kelley
O’Neil’s. He recalled meeting IH and walking with her to his
hotel, and admitted it may have been possible he knew at that
point she was a prostitute. He testified that upon entering his
room he sat on the bed while IH went into the bathroom. The
appellant claimed he fell asleep while waiting for IH and was
awoken by her “shaking [him]” and telling him he needed “to get
up and . . . pay her.” 5 The appellant claimed he was
disoriented, which led to IH becoming angry and frustrated. As
she repeatedly asked him for payment, he “told her to leave
[the] room, to get out.” 6 The appellant testified that the
discussion became heated, and that he stood up and began
“ushering her towards the door.” 7 As IH was standing between the
appellant and the door, the appellant moved towards her
“gesturing with [his] right hand, and . . . [his] left hand up.” 8
The appellant testified that IH then cut him on his left forearm
with a “lipstick knife.” 9 The appellant claimed he then “decided
to get the knife.” 10 When asked in cross-examination whether IH
attacked him, the appellant responded: “I don’t know. All I
remember, sir, is getting cut. . . . I don’t know if I’d qualify
it as an attack. I just know she cut me.” 11


5
     Id. at 378.
6
     Id. at 379.
7
     Id. at 380.
8
     Id. at 381.
9
   JG testified that she knew that IH carried a “lipstick knife” for
protection. JG described the knife blade as approximately one and half
inches long concealed within a container designed to look like a lipstick
tube. Id. at 203.
10
     Id. at 381.
11
     Id. at 402-03.


                                      5
     A struggle ensued and the appellant claimed IH stabbed his
face while he “was behind her, and [he] had [his] left hand –-
or [his] left arm around her neck.” 12 The appellant was unable
to give a blow-by-blow description of the struggle, describing
the scene as “chaos.” 13 He did, however, recall his left arm was
around IH’s neck, squeezing her as he was on the ground with IH
on top of him. He testified he was “trying to submit her.” 14 At
some point IH “stopped moving, stopped fighting” 15 and the
appellant testified he secured the knife and crawled into the
bathroom. As he sat in the bathroom wiping blood from his eyes
and putting pressure on his wounds, the appellant tried to
communicate with IH and noticed she was not responding. He then
shook her, eventually rolling her over and realizing she was
dead. The appellant testified that he had no intent to kill
her; he “just wanted her out of [his] room.” 16

     The appellant then described how he panicked and did not
seek help or attempt to revive IH. He decided he “had to get
her out of [his] room and far away from” him. 17 The appellant
removed all of IH’s clothes and belongings and placed them in a
bag. He placed IH’s naked body in his plaid duffel bag and
exited the hotel. After placing the duffel bag in his rental
car, he began driving.

     The appellant testified he did not have a plan formed at
that point, and simply drove until the road ended. He turned
around, pulled off the road, and “put her down in the tall
grass.” 18 The appellant stated he then disabled IH’s cell phone
by removing the battery and discarded all of her belongings in a
dumpster. After reporting to JPAC later that morning, he
returned to his hotel room at the Aston with cleaning supplies.
He testified that he cleaned the room, using bleach and stain
remover in an effort to rid the hotel room of any evidence. The

12
     Id. at 383.
13
     Id. at 384.
14
   Id. The appellant was five foot nine inches tall and weighed approximately
185 pounds. IH was approximately five foot three inches and weighed between
125 and 130 pounds.
15
     Id. at 385.
16
     Id. at 387.
17
     Id. at 388.
18
     Id. at 390.


                                      6
appellant then checked out of his room at the Aston and moved
into the Navy Lodge.

     Additional facts necessary to discuss the AOE’s are
provided below.

                        Sentence Appropriateness

     We review the appropriateness of a sentence de novo.
United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). Under
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 an “‘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) (quoting United States v. Mamaluy, 27 C.M.R. 176, 180-81
(C.M.A. 1959)). While this court has a great deal of discretion
in determining whether a particular sentence is appropriate, we
are not authorized to engage in exercises of clemency. Healy,
26 M.J. at 395-96.

     The appellant argues that a sentence including confinement
for life is inappropriately severe, given: the appellant did not
intend to kill IH; the death resulted from a dangerous
altercation where the appellant was extremely intoxicated and
injured; the appellant has more than 16 years of honorable
service, including multiple combat tours; the appellant suffers
from post-traumatic stress disorder; the appellant has a wife
and four children; and, the appellant’s use of a “submission
hold” was only in self-defense. 19 We disagree.

     The Government’s experts at trial testified that to cause
IH’s death the appellant would have had to cut off her ability
to breathe for at least four minutes – a period extending far
beyond the point at which she would have passed out and ceased
struggling. 20 Alternatively, the appellant would have had to use
enough force to crush IH’s windpipe – something clearly
19
    The appellant’s claim of self-defense was considered and properly rejected
by the members.

20
     Id. at 323.
                                      7
inconsistent with the appellant’s claim that he merely sought
“to submit her.” 21

     As evidenced by their verdict, the members credited the
appellant’s claim that he did not intend to kill IH. Yet they
found that his actions met the definition of murder under
Article 118(3), UCMJ. “Article 118 . . . defines but one
crime,” with its four subdivisions setting forth either
aggravating circumstances or “states of mind characterizing
murder in a lesser degree.” United States v. McDonald, 15
C.M.R. 130, 134 (C.M.A. 1954) (citation omitted). The appellant
argues that the absence of intent to kill IH makes his sentence
inappropriately severe. His actions, however, show a state of
mind that properly labels the killing as murder. IH’s death was
not the result of accident or even culpable negligence; it was
the result of the appellant’s wrongful actions accompanied by a
“murderous” state of mind. “The presence of malice is the
element in murder which differentiates that crime from
manslaughter.” United States v. Maxie, 25 C.M.R. 418, 421
(C.M.A. 1958). Here, that “malice,” evidenced in the
appellant’s indifference to the likelihood of death or serious
bodily harm, supports a sentence of confinement for life and a
dishonorable discharge.

     The fact the appellant is a father and husband with an
impressive record of military service only makes the
circumstances of this case more tragic. It does little to
counterbalance the appellant’s wanton disregard for IH’s life as
he choked her to death. Having given individualized
consideration to this particular appellant, including his record
of service, the nature and seriousness of the offense, and all
other matters contained in the record of trial, we are satisfied
that justice is done and that the appellant received the
punishment he deserved. Granting sentence relief at this point
would be to engage in clemency, a prerogative reserved for the
CA, and we decline to do so. Healy, 26 M.J. at 395–96.

                       Sentencing Evidence

     The appellant next argues that admission of Prosecution
Exhibit 58, a twelve-minute video montage containing 98 photos
of the victim accompanied by sentimental music, was plain error.
The appellant correctly notes that the trial defense counsel
objected to the Government publishing the video during the
presentation of its sentencing case, but did not object to the

21
     Id. at 384.
                                8
members viewing the video during their deliberations. Yet, as
the following colloquy demonstrates, the trial defense counsel
did more than simply not object:

       MJ:   Any objection to Prosecution Exhibit 58?

       DC[]: Defense has a question. When will this be
            published to the members during the course of the
            government’s case during sentencing?

       MJ:   When will it be published?   Here in the
             courtroom?

       ATC: It will be provided to members for their
            review during their deliberations.

       MJ:   Okay.

       ATC: Sir, if the court’s amenable to playing it
            during – published during the government’s case,
            the government would liked [sic] to do that.

       DC[]: The defense objects, sir. We’re
            comfortable with the members viewing during their
            deliberations, sir.

       MJ:   Okay . . . . So let me get this straight,
             you have no objection to this?

       DC[]: To be used in deliberations.    Yes sir. 22


      “Whereas forfeiture is the failure to make the timely
assertion of a right, waiver is the ‘intentional relinquishment
or abandonment of a known right.’” United States v. Olano, 507
U.S. 725, 732 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458,
464 (1938)). After a thorough discussion with the military
judge, the defense did not merely forfeit the issue by failing
to object. Here, the defense specifically waived the issue by
expressly agreeing to the video’s use during deliberations.

     While this court will review forfeited issues for plain
error, “‘we cannot review waived issues at all because a valid
waiver leaves no error for us to correct on appeal.’” United
States v. Campos, 67 M.J. 330, 332 (C.A.A.F. 2009) (quoting

22
     Id. at 457.
                                   9
United States v. Papas, 409 F.3d 828, 830 (7th Cir. 2005)).
Furthermore, the appellant has not alleged, and we find no
evidence of, ineffective assistance of counsel regarding the
admission of the video. Accordingly, we find no error to
review.

                      Individual Military Counsel

     The appellant’s third AOE involves the denial of his IMC
request. We have fully considered this issue and find it
without merit. United States v. Clifton, 35 M.J. 79 (C.M.A.
1992).

                     Factual and Legal Sufficiency

     In his final AOE, the appellant claims the evidence
admitted at trial was both legally and factually insufficient to
prove him guilty of violating Article 118(3), UCMJ. To support
this claim he argues that the evidence shows he acted in self-
defense or, alternatively, with the lower level of culpability
associated with manslaughter or negligent homicide, that is,
either culpable or simple negligence. 23 We disagree.

Legal Sufficiency.

     The test for legal sufficiency is whether, considering the
evidence in the light most favorable to the Government, any
rational trier of fact could have found the elements of the
offense beyond a reasonable doubt. United States v. Turner, 25
M.J. 324, 325 (C.M.A. 1987); United States v. Reed, 51 M.J. 559,
561-62 (N.M.Crim.Ct.App. 1999), aff'd, 54 M.J. 37 (C.A.A.F.
2000); see also Art. 66(c), UCMJ.

     The elements of Article 118(3) are:

     (1) That a certain named or described person is dead;

     (2) That the death resulted from the intentional act
     of the accused;

     (3) That this act was inherently dangerous to another
     and showed a wanton disregard for human life;



23
  The first two parts of this AOE (related to self-defense and negligent
homicide) are raised pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982).
                                     10
         (4) That the accused knew that death or great bodily
         harm was a probable consequence of the act; and,

         (5) That the killing was unlawful.

MANUAL   FOR   COURTS-MARTIAL, UNITED STATES (2012 ed.), Part IV, ¶ 43b(3).

     Here, the appellant’s own testimony established that IH’s
death resulted from the appellant intentionally choking her.
The Government’s forensic expert testified that, for such
choking to cause death, the appellant would have had to have
prevented IH from breathing for at least four minutes, or used
force sufficient to crush IH’s trachea. Either way, the
evidence supports a finding that such an act was inherently
dangerous, demonstrated a wanton disregard for IH’s life, and
would probably result in death or great bodily harm. The
evidence of the disparity in size and apparent strength,
combined with the appellant’s testimony that he “[doesn’t] know
if [he] would qualify [IH cutting him] as an attack,” 24 supports
a finding that the appellant did not act in self-defense. Thus,
we find the evidence to be legally sufficient.

Factual Sufficiency.

     Under Article 66(c), UCMJ, we conduct a de novo review of
factual sufficiency of each case before us. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). 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,” we are ourselves convinced
of the accused's guilt beyond a reasonable doubt. Turner, 25
M.J. at 325. “Such a review involves a fresh, impartial look at
the evidence, giving no deference to the decision of the trial
court on factual sufficiency beyond the admonition in Article
66(c), UCMJ, to take into account the fact that the trial court
saw and heard the witnesses.” Washington, 57 M.J. at 399.
Proof beyond a reasonable doubt does not mean that the evidence
must be free from conflict. United States v. Goode, 54 M.J.
836, 841 (N.M.Ct.Crim.App. 2001).

     The appellant’s testimony clearly established the first two
elements of the offense. The essentially unchallenged expert
testimony regarding the duration or force required to cause
death by choking proves to us that the appellant’s act was
inherently dangerous to another and showed a wanton disregard

24
     Record at 403.
                                       11
for human life. It also convinces us that the appellant must
have known that this act would probably cause great bodily harm
or death. 25 The fact the choking would have had to continue for
several minutes after IH became unconscious, combined with the
appellant’s testimony that he can’t say whether he would even
label IH’s actions as an “attack,” disproves any claim of self-
defense. Finally, the appellant’s extensive efforts to dispose
of IH’s body and remove any evidence of her murder clearly
demonstrate consciousness of guilt. Accordingly, we are
convinced of the appellant’s guilt beyond a reasonable doubt.

                                   Conclusion

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

      Senior Judge BRUBAKER and Judge Rugh concur.


                                          For the Court



                                          R.H. TROIDL
                                          Clerk of Court




25
    While evidence of voluntary intoxication normally “may be introduced for
the purpose of raising reasonable doubt as to the existence of actual
knowledge . . . if actual knowledge . . . is an element of the offense,” RULE
FOR COURTS-MARTIAL 916(l)(2), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.),
voluntary intoxication cannot reduce unpremeditated murder to manslaughter or
any lesser offense. MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), Part IV, ¶
43(c)(2)(c). “[V]oluntary drunkenness -- not amounting to legal insanity --
will not in military law negate that general criminal intent, the malice,
required for a conviction of unpremeditated murder.” United States v.
Stokes, 19 C.M.R. 191, 197 (C.M.A. 1955) (citation omitted).
                                        12
