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

                                 Before
                  R.Q. WARD, D.C. KING, M.G. MILLER
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                         ERIC D. RAINES
              LANCE CORPORAL (E-3), U.S. MARINE CORPS

                           NMCCA 201400027
                       GENERAL COURT-MARTIAL


Sentence Adjudged: 29 August 2013.
Military Judge: Col James Carberry, USMC.
Convening Authority: Commanding General, 3d Marine Division
(-) (Rein), MCBH Kaneohe Bay, HI.
Staff Judge Advocate's Recommendation: Maj K.T.
Carlisle, USMC.
For Appellant: Capt Jason Wareham, USMC.
For Appellee: CDR Gregory R. Dimler, JAGC, USN; Maj Crista
D. Kraics, USMC.

                            21 August 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.

MILLER, Judge:

     The appellant entered mixed pleas at a trial by general
court-martial with officer and enlisted members. Pursuant to
his pleas, the military judge found the appellant guilty of two
specifications of wrongfully using Spice in violation of Article
92, Uniform Code of Military Justice, 10 U.S.C. § 892. The
members convicted the appellant, contrary to his pleas, of three
specifications of committing indecent acts by surreptitiously
video recording consensual sexual acts between himself and
others without their knowledge or consent, one specification of
wrongfully videotaping the private area of another without the
person’s consent, and one specification of forcible sodomy, in
violation of Articles 120 and 125, UCMJ, 10 U.S.C. §§ 920 and
925. The members sentenced the appellant to 24 months’
confinement, reduction to pay grade E-1, total forfeitures, and
a bad-conduct discharge. The convening authority (CA) approved
the sentence as adjudged.

     The appellant raises the following three assignments of
error: (1) that the evidence presented at trial to support the
forcible sodomy conviction was legally and factually
insufficient; (2) that the military judge plainly erred by
incorrectly instructing the panel on the appellant’s eligibility
for rehabilitative services through the Veterans Administration
(VA) with a punitive discharge; and (3) that the subjects of the
video recordings had no reasonable expectation of privacy in the
sexual acts being recorded and therefore the appellant’s conduct
in recording them was not indecent within the meaning of Article
120, UCMJ.

     After careful consideration of the record of trial, the
appellant’s assignments of error, and the pleadings of the
parties, we conclude that the findings and the sentence are
correct in law and fact and that no error materially prejudicial
to the substantial rights of the appellant was committed. Arts.
59(a) and 66(c), UCMJ.

                           Background

     The appellant surreptitiously video recorded his sexual
encounters with women on four separate occasions at his
apartment in Kailua, island of Oahu, Hawaii between
approximately May to July 2012. After he placed a digital
camera in a glass door entertainment center at the foot of his
bed, he then recorded his sexual encounters without the women’s
knowledge or consent. At trial, all four victims, A.B., J.G.,
A.D., and J.S, conceded that they willingly accompanied the
appellant to his apartment with the expectation of sexual
conduct, but denied any knowledge that the appellant was
recording their activities. Similarly, all four testified that
they would not have consented to the appellant video recording
their private areas or sexual encounters.


                                2
     A.B. met the appellant and his friends on the beach in May
2012. The appellant’s friends invited everyone in the group to
their apartment that was just a few blocks away from the beach
for a post-beach barbecue. At the apartment, A.B. was provided
an unknown rum drink served in a glass that was approximately
seven inches high. At trial, A.B. described the drinks as very
strong and described herself as not much of a drinker. She
indicated that she thought she had consumed approximately five
drinks that were served in a seven-inch-tall glass and became
extremely intoxicated. At some point during the barbecue, A.B.
pushed the appellant up against a wall and kissed him.
Eventually they talked about going back to the appellant’s
apartment together. Although nothing was explicitly discussed,
A.B. testified that she expected that they would have sexual
intercourse. The appellant then drove A.B. back to his
apartment. At trial, A.B. described herself as being
intoxicated by that point and she did not recall any
conversation in the appellant’s car nor did she remember
entering his apartment. She testified that she vaguely
remembered arriving at his apartment and walking up the stairs.

     Her first memory that night after entering the appellant’s
apartment was waking up on the appellant’s bed face down with
her shorts pulled down, the appellant on top of her and feeling
a shooting, stabbing pain in her rectum. Record at 242. She
testified that then the appellant immediately flipped her over
onto her back and engaged her in sexual intercourse. She
testified that although she did not resist intercourse and was
“okay” with it, she would not have been okay with anal sex that
night. Id. at 242-43.

     A review of the video recording admitted into evidence as
Prosecution Exhibit 6 clearly showed an unresponsive A.B. lying
face down on the appellant’s bed. A.B. did not move despite the
appellant removing her shorts, removing his clothes and licking,
touching and putting his fingers into her rectum. The video
clearly shows the appellant attempting to commit anal sodomy
with A.B. by placing lubricant on his penis and her anus and
then straddling her and guiding his penis into her anus. The
video then displays him thrusting his pelvic area until A.B.
awakens and cries out in clear pain and discomfort. At that
point, the appellant rolls A.B. over onto her back and engages
in vaginal intercourse with her. At trial, a forensic
toxicologist estimated that based on A.B.’s alcohol consumption,
age, sex, height and weight, her BAC that night was between .07
and .27.


                                3
     While deliberating on sentence, the members asked the
following question: “What type of treatment/rehabilitation
services are available (if any) for a combat veteran seperated
[sic] from service with a punative [sic] discharge?” Appellate
Exhibit XLIV. The military judge called an Article 39(a)
session to discuss his response with counsel and presented them
with his proposed response. Both parties indicated that they
had no objection to the military judge’s proposed instruction.
Record at 510. The military judge then instructed the members
that “a punitive discharge deprives one of substantially all
benefits administered by the Department of Veterans Affairs. A
combat veteran may nonetheless, however, petition the Department
of Veterans Affairs for rehabilitative services. He is not, per
se, entitled to the services.” Id. at 510-11.

        Legal and Factual Sufficiency for Forcible Sodomy

     This court reviews claims of legal and factual
insufficiency de novo, examining all the evidence properly
admitted at trial. Art. 66(c), UCMJ; United States v. Beatty,
64 M.J. 456, 459 (C.A.A.F. 2007). 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 contested crimes beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19
(1979); United States v. Quintanilla, 56 M.J. 37, 82 (C.A.A.F.
2001); United States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987).
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 ourselves are
convinced of the appellant's guilt beyond a reasonable doubt.
Turner, 25 M.J. at 325.

      Within the context of this case, the Government was
required to prove beyond a reasonable doubt that the appellant
engaged in unnatural carnal copulation with A.B. by penetrating
her anus with his penis, and that the act was done by force and
without the consent of A.B. Penetration however slight is
sufficient to complete the offense. MANUAL FOR COURTS-MARTIAL (MCM),
UNITED STATES (2012 ed.), Part IV, ¶ 51a(a). Both force and lack
of consent are necessary for this offense. In situations where
a victim is incapacitated, the amount of force necessary to
achieve penetration is sufficient. Quintanilla, 56 M.J. at 82;
United States v. Traylor, 40 M.J. 248, 250 n.* (C.M.A. 1994)
(Wiss, J., concurring in the result). Similarly, if A.B. was
incapable of consenting due to lack of mental or physical
faculties, then the act was done by force and without consent.

                                 4
See, e.g., United States v. Roumer, 2012 CCA LEXIS 27,
unpublished op. (N.M.Ct.Crim.App. 31 Jan 2012) (finding forcible
sodomy conviction legally and factually sufficient where act
committed while victim was “passed out” due to alcohol
intoxication), rev. denied, 71 M.J. 323 (C.A.A.F. 2012).

     This case presents us with both direct and circumstantial
evidence of penetration. Prosecution Exhibit 6, the video
recording of A.B., displays her unresponsive until she awakes
and cries out in pain, coupled with her testimony of waking up
to a sharp stabbing pain in her rectum, provide strong
circumstantial evidence that the appellant achieved the minimal
amount of penetration required to satisfy that element.
Additionally, PE 6 showing A.B.’s motionless and unresponsive
body establishes beyond a reasonable doubt that any belief by
appellant that A.B. consented to the act of sodomy was far from
honest and reasonable.

     Considering the record before us, we are convinced of the
appellant's guilt beyond a reasonable doubt and that any
rational trier of fact could have found the elements of the
contested crimes beyond a reasonable doubt. We therefore find
that the evidence is factually and legally sufficient to sustain
his conviction for forcible sodomy.

  Military Judge’s Instruction on Collateral Consequences of a
                       Punitive Discharge

     Absent objection at trial, we review the military judge’s
decision to give an instruction for plain error. United States
v. Girouard, 70 M.J. 5, 11 (C.A.A.F. 2011). To establish plain
error, the appellant must show that (1) the trial judge
committed error; (2) the error was plain or obvious; and, (3)
the error materially prejudiced a substantial right of the
appellant. Id. (citation and footnote omitted). “[T]he
military judge’s instructions to members must be adequate to
allow the court ‘intelligently to determine a punishment
appropriate to the accused before it.’” United States v.
Perkinson, 16 M.J. 400, 401 (C.M.A. 1983) (quoting United States
v. Turner, 34 C.M.R. 215, 217 (C.M.A. 1964)).

     Citing 38 C.F.R. § 3.12(c)(2), the appellant argues that
the military judge plainly erred in his instruction since a
punitive discharge at a general court-martial statutorily bars
any VA benefits. See also 38 U.S.C. § 5303.



                                5
     Assuming without deciding that the military judge’s
instruction that “a combat veteran may nonetheless, however,
petition the Department of Veterans Affairs for rehabilitative
services” was plain and obvious error, we find no material
prejudice. The appellant argues that his sentencing case rested
almost entirely upon his struggles with PTSD and that the
military judge’s error prevented the members from accurately
weighing the impact of their sentence. The appellant has failed
to demonstrate that this error resulted in, or even contributed
to, the bad-conduct discharge he received. Even had the
military judge properly instructed the panel that a punitive
discharge at a general court-martial is a statutory bar to any
VA benefits, we find no reasonable probability that the panel
would have refrained from adjudging a punitive discharge given
the seriousness and gravity of the offenses to which he was
convicted.

     To the contrary, the question asked by the members
demonstrates that the panel did consider his struggle with PTSD
and despite that, still agreed to award him a punitive discharge
even though they knew he would not necessarily be eligible for
any rehabilitative services. The members convicted the
appellant of forcible sodomy and three specifications of
committing indecent acts. The maximum sentence he faced was
confinement for life without the possibility of parole,
reduction in rank to E-1, total forfeitures and a dishonorable
discharge. Considering that the trial counsel asked for
confinement for between 15 and 20 years and a dishonorable
discharge, and the members adjudged confinement that was
considerably less – 24 months - and the punitive discharge
awarded was a bad-conduct rather than a dishonorable discharge,
we find that the members gave the appellant the personalized and
individualized consideration as to his sentence.

                 Reasonable Expectation of Privacy

      The statutory offense of Indecent Act under Article 120k,
UCMJ, applicable to appellant’s offenses committed during the
period 1 October 2007 through 27 June 2012, was replaced in
large part by Article 120c, UCMJ, applicable to the offenses
committed after 27 June 2012. See MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2012 ed.), App. 23 at A23-16. The offense under Article
120(k) states that any person subject to this chapter who
engages in indecent conduct is guilty of an indecent act and
shall be punished as a court-martial may direct. Article
120(t)(12) defined indecent conduct as


                                  6
    that form of immorality relating to sexual impurity
    that is grossly vulgar, obscene, and repugnant to
    common propriety, and tends to excite sexual desire or
    deprave morals with respect to sexual relations.
    Indecent conduct includes observing, or making a
    videotape, photograph, motion picture, print,
    negative, slide, or other mechanically,
    electronically, or chemically reproduced visual
    material, without another person's consent, and
    contrary to that other person's reasonable expectation
    of privacy, of (A) that other person's genitalia,
    anus, or buttocks, or (if that other person is female)
    that person's areola or nipple; or (B) that other
    person while that other person is engaged in a sexual
    act, sodomy (under section 925 (article 125) of this
    chapter), or sexual contact.

MCM (2007 ed.), Part IV, ¶ 45a(t)(12).

     For acts committed after 27 June 2012, Article 120c(a)(2),
UCMJ, prohibits a visual recording if, without legal
justification or lawful authorization, one knowingly
photographs, videotapes, films, or records by any means the
private area of another person, without that other person’s
consent and under circumstances in which that other person has a
reasonable expectation of privacy. MCM (2012 ed.), Part IV, ¶
45c(a)(2). “Private area” is defined as the naked or underwear-
clad genitalia, anus, buttocks, or female areola or nipple.
Art. 120c(c)(2); MCM (2012 ed.), Part IV, ¶ 45c(c)(2). Article
120c further defines the term “under circumstances in which that
other person has a reasonable expectation of privacy,” as (A)
circumstances in which a reasonable person would believe that he
or she could disrobe in privacy, without being concerned that an
image of a private area of the person was being captured; or (B)
circumstances in which a reasonable person would believe that a
private area of the person would not be visible to the public.
Art. 120c(c)(3)(A) and (B); MCM (2012 ed.), Part IV, ¶
45c(c)(3)(A) and (B). By enacting this provision of the UCMJ,
Congress recognized an expectation of privacy in a person’s body
consistent with what has historically been recognized through
widely accepted social norms.

     In this case, although all four female victims may have
consented to sexual acts with the appellant, they all testified
that they were completely unaware that their sexual activities
with the appellant were being recorded and did not consent to
their naked bodies or their participation in sexual acts being

                                7
recorded. All four women indicated that, upon learning of the
recording, they felt violated, embarrassed and ashamed. Some
even experienced emotional trauma as a result.

     The appellant suggests that these women had no reasonable
expectation of privacy because they should have noticed the
camera and, that by agreeing to have sex with him, they
implicitly agreed to the recording. We find both suggestions
patently ridiculous; agreeing to have sex with another does not
remove all reasonable expectations of privacy. Accordingly, we
find this assignment of error without merit.

                           Conclusion

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

    Senior Judge WARD and Judge KING concur.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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