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

                                  Before
              J.A. FISCHER, B.T. PALMER, T.H. CAMPBELL
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                      RENATO M. SERRANO
           FIRE CONTROLMAN FIRST CLASS (E-6), U.S. NAVY

                           NMCCA 201500057
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 9 September 2014.
Military Judge: CDR Michael J. Luken, JAGC, USN.
Convening Authority: Commander, Navy Region Mid-Atlantic,
Norfolk, VA.
Staff Judge Advocate's Recommendation: CDR S.J. Gawronski,
JAGC, USN.
For Appellant: C. Ed Massey, Esq.; Capt Michael Magee,
USMC.
For Appellee: Maj Tracey Holtshirley, USMC; LT Jamie
Belforti, JAGC, USN.

                           29 December 2015

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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:

     A military judge (MJ) sitting as a general court-martial
convicted the appellant, consistent with his pleas, of sexually
assaulting a child between 12 and 16 years old, on divers
occasions, in violation of Article 120, Uniform Code of Military
Justice, 10 U.S.C. § 920.1 The convening authority (CA) approved
the adjudged sentence of 15 years’ confinement and a
dishonorable discharge—-and suspended confinement beyond 12
years in accordance with a pretrial agreement (PTA).2

      The appellant argues that the MJ erred by allowing the
testimony of two MILITARY RULE OF EVIDENCE 414, MANUAL FOR COURTS-MARTIAL,
UNITED STATES (2012 ed.) sentencing witnesses, and that the
approved sentence is unjustifiably severe. This court also
identified two post-trial issues that the parties did not
address. After carefully considering the record of trial and
the parties’ submissions, we conclude the findings and sentence
are correct in law and fact, and find no error materially
prejudicial to the appellant’s substantial rights. Arts. 59(a)
and 66(c), UCMJ.

                                  Background

     In September 2008, the victim in the charged offense, SH,
moved from New York to Virginia to live with her maternal aunt
and uncle by marriage. SH was 15 years old. Her uncle’s
younger brother, the appellant, also lived in her new home. The
appellant first met SH when she was three, and saw her on some
occasions afterwards. SH referred to the appellant as “Uncle
Reny.” 3 He was 35. Although his wife was in the Philippines,
the appellant had married earlier that year.

     Within weeks of SH’s arrival, the appellant began touching
her neck and back in a sexual manner. He progressed to touching
her thighs and to digital vaginal penetration. By November
2008, he asked SH to sneak to his bedroom at night. There they
each performed oral sex and had intercourse at least three times
before SH moved to Pennsylvania in January 2009.

     In October 2011, SH told her aunt what the appellant had
done to her. The aunt angrily confronted the deployed appellant
via email. He did not deny the allegations, but claimed SH had
seduced him. SH later reported the abuse to law enforcement.


1
  The appellant pled not guilty to three other Article 120 specifications and
an Article 125 charge and specification involving the same child victim, SH.
Those offenses were withdrawn and dismissed pursuant to a pretrial agreement.
2
  As clemency, the CA also deferred automatic forfeitures after trial and then
waived them for six months from the date of his action on the case for the
benefit of the appellant’s dependent wife and daughter.
3
    Prosecution Exhibit 1 at 1.
                                      2
     Investigators got sworn, written statements from two of the
appellant’s biological nieces, CD and CW, who described being
sexually abused by him between 1986 and 2002. The appellant,
their mother’s brother, is seven and 11 years older than them,
respectively. Upon moving to the United States as a 14-year-
old, he lived with them until either one went to college and
then he left their home for military service. The reported
abuse involved kissing, fondling, and digitally penetrating one
niece before she was 10 until she was 17. The same acts began
with the younger niece by the time she was 12, but progressed to
nightly oral or vaginal intercourse in the appellant’s bedroom
for about five years, until she was 18.

     After the appellant enlisted, CD and CW’s mother and some
extended family members became vaguely aware he had done
something to CD and CW. Their mother refused to let the
appellant live in her home afterwards when he was stationed in
Virginia in 2008--so he lived with his brother’s family instead.
CD and CW’s statements were exhibits at the appellant’s Article
32 hearing.

     In limine, the Government sought to admit CD and CW’s
testimony for the merits and sentencing under MIL. R. EVID. 414.4
The civilian trial defense counsel (CTDC) argued the prior acts
lacked relevance and were overly prejudicial.5 After receiving
arguments and reviewing CD and CW’s written statements, the MJ
granted the Government’s motion6 and issued a written ruling.7

     Having withdrawn from an initial PTA8 once the Government
filed the MIL. R. EVID. 414 motion, the appellant negotiated a
second PTA after the MJ’s ruling. Like the first PTA, it
included the following “Specially Negotiated” provision:

        I agree to waive all motions except those that are
        otherwise non-waivable pursuant to [RULE FOR COURTS-
        MARTIAL] 705(c)(1)(B) [, MANUAL FOR COURTS-MARTIAL, UNITED
        STATES (2012 ed.)]. I have not been compelled to waive

4
    Appellate Exhibit IX.
5
    AE XIX at 3-5.
6
    Record at 76-78; 85.
7
    AE XXXII.
8
  AEs VII and VIII. AE VIII was sealed without the MJ’s awareness of the
sentence limitations within the agreement—-a 10 year confinement cap.


                                      3
         my right to due process, the right to challenge the
         jurisdiction of the court-martial, the right to a
         speedy trial, the right to raise the issue of unlawful
         command influence, or any other motion that cannot be
         waived. I have no motions to bring and I am not aware
         of any motion that was waived pursuant to this
         provision.9

     Reviewing that provision with the appellant, the MJ asked
about previously litigated motions. The CTDC responded:

         I believe the law is quite clear that...once the
         accused enters a guilty plea, if the court accepts it,
         all prior motions that have been submitted to the
         court and decided by a court, are waived for appellate
         review purposes. The accused fully understands that.
         I’ve discussed that with him fully.10

The MJ then directly addressed the appellant:

         So, [appellant], you now understand what all that
         lawyer talk just was about? Let me explain it to you
         real quick. So, what happens, we had some motions
         that your counsel filed previously. That’s when we
         were in the court before. I’d listen to argument, and
         then I made my rulings. What’s happening now is,
         based on the terms of this agreement, the specific
         term is, you’re now saying—-so you get the benefit of
         the deal that the government is offering you. You’re
         agreeing to waive all those motions and say,
         basically, “Those aren’t important any more for
         appellate review.” Do you understand that?11

The appellant replied, “Yes, sir.”12

     The specially negotiated PTA provisions also included an
agreement, “not to object to any victim impact statements being
offered in sentencing on the basis of foundation, hearsay,
authenticity, best evidence, or the Confrontation Clause of the


9
     AE XXXIV at 5-6.
10
     Record at 132.
11
     Id. at 132-33.
12
     Id. at 133.
                                    4
Sixth Amendment.”13 When CD was called as the first sentencing
witness, the appellant argued her expected testimony was
irrelevant, improper R.C.M. 1001 evidence, and inadmissible
under MIL. R. EVID. 403. In overruling the objection, the MJ
explained, “I’m going to adopt my ruling as to M.R.E. 414. My
analysis is the same, including my 403 analysis.”14 CD and CW
then testified about the appellant’s sexual abuse, consistent
with their written, sworn statements.

                                   Discussion

Evidence of Similar Crimes

      The Government argues the appellant waived appeal of the
MIL. R. EVID. 414 evidence’s admissibility by unconditionally
pleading guilty, or that he subsequently waived appeal by not
renewing a MIL. R. EVID. 414 objection at sentencing.15 We assume,
without deciding, that evidence in aggravation goes beyond the
factual issue of guilt for purposes of waiver based on a guilty
plea.16 The appellant did not expressly waive this assignment of
error, since the PTA did not prevent all objections to CD and
CW’s testimony, and the defense raised timely objections at
sentencing. While failure to object on specific grounds may
result in waiver of potentially valid issues for appeal under
MIL. R. EVID. 103(a)(1), the MIL. R. EVID. 403 objection here
necessarily implicated MIL. R. EVID. 414--as evidenced by the MJ
adopting his earlier MIL. R. EVID. 414 analysis in overruling the
objection. See United States v. Fontenot, 29 M.J. 244, 246
(C.M.A. 1989) (trial defense counsel did not waive “all other
possible objections to admissibility” by citing only MIL. R. EVID.
403 when “all parties at trial fully appreciated the substance
of those complaints and . . . the military judge had full
opportunity to consider them --which, after all, is what the
waiver rule is designed to provide in the first place.”).
Therefore, we address, but find unpersuasive, the appellant’s
MIL. R. EVID. 414 challenge.

     We review the admissibility of sentencing evidence for an
abuse of discretion, United States v. Ediger, 68 M.J. 243, 248
13
     AE XXXIV at 6.
14
     Record at 146-47.
15
     Government Brief of 23 Oct 2015 at 13–16.
16
  But see United States v. Bradley, 68 M.J. 279, 282 (C.A.A.F. 2010) (holding
an “unconditional guilty plea waived both [a] motion to dismiss and [an]
objection to [the trial counsel’s] presence on the prosecution team.”).
                                         5
(C.A.A.F. 2010)), and do not overturn an MJ’s ruling unless it
is “‘arbitrary, fanciful, clearly unreasonable, or clearly
erroneous,’” United States v. McDonald, 59 M.J. 426, 430
(C.A.A.F. 2004) (quoting United States v. Miller, 46 M.J. 63, 65
(C.A.A.F. 1997)), or influenced by an erroneous view of the law.
Id. (quoting United States v. Humphreys, 57 M.J. 83, 90
(C.A.A.F. 2002)).

      An MJ must make three threshold findings before admitting
MIL. R. EVID. 414 evidence: (1) whether the accused is charged
with an act of child molestation as defined by MIL. R. EVID.
414(a); (2) whether the proffered evidence relates to the
accused’s commission of another child molestation offense as
defined by the rule; and (3) whether the evidence is relevant
under MIL. R. EVID. 401 and 402. Ediger, 68 M.J. at 248 (citing
United States v. Bare, 65 M.J. 35, 36 (C.A.A.F 2007)).

     Upon finding proffered evidence satisfies the initial
thresholds, the MJ must apply the MIL. R. EVID. 403 balancing
test, under which the testimony may be excluded if its
“probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
members, or by considerations of undue delay.” The MJ should
consider at least the following factors: 1) the strength of
proof of the prior act; 2) the probative weight of the evidence;
3) potential to present less prejudicial evidence; 4) possible
distraction of the fact-finder; 5) time needed to prove the
prior conduct; 6) temporal proximity of the prior event; 7)
frequency of the acts; 8) presence or lack of intervening
circumstances; and 9) relationship between the parties. United
States v. Wright, 53 M.J. 476, 482 (C.A.A.F. 2000) (citing
United States v. Enjady, 134 F.3d 1427, 1433 (10th Cir. 1998)
and United States v. Guardia, 135 F.3d 1326, 1331) (10th Cir.
1998).

      The MJ here made the first two threshold findings, noting
they were not challenged. He found the prior incidents relevant
under MIL. R. EVID. 401 and 402 as showing a firm pattern of
sexual conduct with nieces between eight and 16, at least seven
years younger than, and living in the same home as, the
appellant.17 He then considered the Wright factors in a MIL. R.
EVID. 403 analysis.18 He found CD and CW’s accounts very strong
proof of the prior acts. Being so similar to each other and to

17
     AE XXXII at 4-5.
18
     Id. at 5-6.


                                6
what SH described, under the same or very similar living
arrangements, the accounts had high probative weight. No less
prejudicial evidence than the testimony existed. The need to
minimize trials within trials would be met by limiting
corroborating evidence for the testimony. The probative value
was not outweighed by the readily apparent distraction and
additional time resulting from presenting proof of the prior
conduct. Temporal proximity of the previous acts was not too
distant considering the appellant engaged CD, CW, or SH in
frequent and regular sexual conduct whenever one of the girls
lived with him. The conduct ended only when a niece moved or
the appellant was stationed elsewhere. Relationships between
the parties differed only in that SH was not the appellant’s
biological niece--but his brother’s niece by marriage.
Otherwise, the victims were all under-aged, female, extended
family members living in the same home as the appellant.19 Thus,
the MJ reached a permissible conclusion on admissibility of CD
and CW’s testimony about the appellant previously molesting
them.

     Considering CD and CW’s testimony for sentencing also was
not an abuse of discretion, despite the appellant’s R.C.M. 1001
and MIL. R. EVID. 403 objections. See United States v. Tanner, 63
M.J. 445, 449 (C.A.A.F. 2006) (holding that “in a child
molestation case, evidence of a prior act of child molestation
‘directly relat[es] to’ the offense of which the accused has
been found guilty and is therefore relevant during sentencing
under R.C.M. 1001(b)(4)”).

Sentence Appropriateness

     We review sentence appropriateness de novo. United States
v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). “Sentence
appropriateness involves the judicial function of assuring that

19
  The ruling also addressed when the appellant was a minor: “[I]nteraction
with C.D. continued nearly 7 years after he reached the age of 18. He was
about twice C.D.’s age when the alleged abuse began: he was 14-15 years old
while she was about 7-8 years old. He continued the sexual conduct until he
was 25 years old. The Accused also turned to her sister, C.W. during an
overlapping period after the Accused reached 18. Again, the pattern of the
age, relationship, and timing between these incidents is too great....the
court specifically finds the Accused’s conduct was chronic throughout. The
prior sexual conduct with C.D. while the Accused was a minor does not fall
within any concern that the prior incidents do not show propensity but
conduct of an adolescent making immature choices without appreciating the
severity of his acts. Weighing all the factors above and considering the
high probative value to any unfair prejudice, the scales tip heavily in favor
of the evidence’s admission.” Id. at 6 (emphasis in original).
                                      7
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 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) (citations and internal
quotation marks omitted). 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 appellant repeatedly manipulated a child related to his
extended family to satisfy his sexual desires while living in
his brother’s home. He began this behavior shortly after the
child’s arrival, “seeking refuge from th[e] tumultuous
environment”20 of her previous home and parents’ pending divorce.
Years of similar sexual abuse of his own nieces while living in
his sister’s home demonstrate the extent of the harm inflicted
on his family and his risk to society. With individualized
consideration of the appellant, the nature and seriousness of
his offenses, his record of service, and all the matters within
the record of trial, we find his adjudged sentence appropriate.

Post-Trial Issues not Raised as Assignments of Error

     We note two post-trial issues not raised by the parties:
the addendum to the staff judge advocate’s recommendation (SJAR)
fails to address the allegation of legal error in the
appellant’s clemency request, and the promulgating order
inaccurately reflects the dates of the sole offense of which the
appellant was convicted--Specification 4 under Charge I.

     The CTDC argued in a clemency request that consideration of
CD and CW’s “inadmissible evidence” resulted in the MJ’s “very
high sentence.” The clemency letter was an enclosure to the
SJAR addendum, which advised the CA that he was “required to
consider these matters in determining whether to approve or
disapprove any of the findings of guilty and the action [he
would] take on the sentence.” It also advised, “There were no
issues of legal error raised” by the defense. Having no “new
matter” in the SJAR addendum under R.C.M. 1106(f)(7), the
defense was not due more time for comment. The CA approved the
sentence as adjudged without further defense correspondence.



20
     PE 1 at 1.
                                8
     Assuming the SJA committed plain error in violation of
R.C.M. 1106(d)(4), this court is nonetheless “free to affirm
when a defense allegation of legal error would not foreseeably
have led to a favorable recommendation by the [SJA] or to
corrective action by the [CA].” United States v. Hill, 27 M.J.
293, 297 (C.M.A. 1988). In this appeal, we have evaluated and
found no merit in the same claims that CD and CW’s testimony was
inadmissible. Consequently, based on the facts in this case,
the SJA’s improper advice did not prejudice the appellant.

     General Court-Martial Order No. 29-14, dated 19 February
2015, says “from on or about September 2008 to on or about
November 2008 to on or about January 2009” instead of “from on
or about November 2008 to on or about January 2009.” Applying a
harmless-error standard, we are convinced this scrivener’s error
does not amount to plain error materially prejudicing the
appellant’s substantial rights. See United States v. Crumpley,
49 M.J. 538, 539 (N.M.Ct.Crim.App. 1998). But as the appellant
is entitled to an official record correctly reflecting his
court-martial results, we nonetheless order corrective action.


                           Conclusion

     We direct the supplemental court-martial order remove the
words “September 2008 to on or about” from the recitation of
Specification 4 of Charge I. Otherwise, the findings and
sentence as approved by the CA are affirmed.

                             For the Court



                             R.H. TROIDL
                             Clerk of Court




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