              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.

                     ADAM S. NELMS
    CONSTRUCTIONMAN MECHANIC THIRD CLASS (E -4), U.S. NAVY

                           NMCCA 201400369
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 4 June 2014.
Military Judge: Col James K. Carberry, USMC.
Convening Authority: Commander, Navy Region Hawaii, Pearl
Harbor, HI.
Staff Judge Advocate's Recommendation: LCDR J.S. Ayeroff,
JAGC, USN.
For Appellant: Maj Michael Magee, USMC; LT Jessica Ford,
JAGC, USN.
For Appellee: LCDR Keith Lofland, JAGC, USN; Capt Cory
Carver, USMC.

                           19 November 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.

FISCHER, Senior Judge:

     An officer panel, sitting as a general court-martial,
convicted the appellant, contrary to his pleas, of two
specifications of sexual assault and one specification of
adultery, in violation of Articles 120 and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 920 and 934. The members
sentenced him to reduction to E-1, total forfeitures;
confinement for five years, eight months, and 24 days; and a
bad-conduct discharge. The convening authority approved the
sentence as adjudged and, except for the punitive discharge,
ordered it executed.

     The appellant raises four assignments of error (AOE): (1)
the military judge abused his discretion in admitting evidence
of the appellant’s prior sexual misconduct; (2) the appellant’s
individual military counsel request was improperly denied; (3)
the sexual assault convictions constitute an unreasonable
multiplication of charges; and (4) the sexual assault
convictions are legally and factually insufficient.1 Although
not raised as error, we find the court-martial promulgating
order does not accurately reflect the court-martial findings and
direct corrective action in our decretal paragraph. We conclude
the findings and sentence are correct in law and fact, and no
error materially prejudicial to the appellant’s substantial
rights was committed.2 Arts. 59(a) and 66(c), UCMJ.

                                   Background

     In September 2013, two female petty officers, Yeoman Second
Class (YN2) CM3 and Logistics Specialist Second Class (LS2) DK,
invited the appellant to go with them to a local bar in Hawaii
for a night of drinking and celebration.4 All three drank


1
  The appellant raises the fourth AOE pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982).
2
  Although not raised as error, we note that the appellant did not elect a
forum on the record. At his arraignment on 28 February 2014, after being
advised of his forum rights, the appellant reserved forum selection and entry
of pleas. Record at 11, 13. On 28 March 2014 and 6 May 2014, a second
military judge presided at full-day pretrial motion sessions, but did not
address forum selection or pleas. From 2-4 June 2014, the second military
judge presided over the three-day trial. Prior to calling the members, the
appellant entered pleas of not guilty to all charges and specifications, but
he did not formally enter a forum selection. Id. at 219. The appellant,
through counsel, fully participated in voir dire, challenges, and
presentation of evidence before the officer member panel without objection to
the court’s composition. We are satisfied that the appellant was tried by a
court composition of his choosing. We find that the military judge’s failure
to obtain the forum election on the record was a procedural error that did
not materially prejudice a substantial right of the appellant. See United
States v. Alexander, 61 M.J. 266, 270 (C.A.A.F. 2005);see also United States
v. Morgan, 57 M.J. 119, 122 (C.A.A.F. 2002).
3
    YN2 CM was no longer in the Navy at the time of the appellant’s trial.


                                        2
heavily at the bar, consuming approximately 9-12 drinks each
over a four and a half to five hour period. Relying on bar
receipts and witness testimony, a Government expert witness
estimated YN2 CM’s blood alcohol content (BAC) peaked between
.37 and .40 on the night in question while a defense expert
witness estimated it peaked at .28.5 YN2 CM testified that she
blacked out at the bar, and her next memory was of lying on the
ground outside the bar.6

     Eventually, all three returned to LS2 DK’s house.7 Once
there, YN2 CM slept on a couch and the appellant slept on the
far side of the same couch.8 YN2 CM testified that her next
memory of the night was waking up in a dark house with a man on
top of her with his penis inside her vagina.9 She also testified
that she could not move from underneath him; the man told her to
roll over and then pushed her onto her stomach.10 YN2 CM
testified that she did not remember anything after that until
the next morning when she awoke lying face down on the couch
with her skirt “bunched up” to her thighs and her underwear on
the floor.11

     That evening YN2 CM went to a local hospital emergency room
and reported that she thought she had been raped the prior
night.12 A nurse performed a sexual assault forensic examination
on YN2 CM. DNA testing from that exam identified the appellant
as the source of semen found on vaginal and cervical swabs taken
from YN2 CM.13

4
  All were friends who worked at the same command and were celebrating the
appellant getting off restriction. YN2 CM was married to another Sailor who
was stationed aboard a ship homeported in San Diego. The appellant was also
married. Record at 486-87 and 520.
5
     Id. at 662-63; 774.
6
     Id. at 489-90.
7
     Id. at 436.
8
     Id. at 437-38.
9
     Id. at 490.
10
     Id. at 490-91.
11
     Id.
12
     Id. at 497.
13
  Id. at 606-07. The DNA expert testified that the probability of selecting
a random individual to match this evidence was approximately 1 in 19
                                     3
                                   Discussion

I.     Evidence Admitted of the Appellant’s Prior Sexual Misconduct

      The appellant avers the military judge abused his
discretion by admitting evidence relating to a prior sexual
assault allegation against him. He maintains that since the
Government repeatedly referenced the allegation to bolster an
otherwise weak case, the evidence failed the MILITARY RULES OF
EVIDENCE 403, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.)
balancing test because it resulted in a “distracting mini-
trial.”14

     The military judge allowed Ms. GC to testify that the
appellant sexually assaulted her two years earlier, despite the
appellant having been acquitted of this offense at a prior
court-martial. Specifically, Ms. GC testified that after a
night of heavy drinking with the appellant and his wife, she
passed out at the couple’s house. She later awoke to the
appellant performing oral sex on her. Ms. GC also testified to
memories of the appellant “forcing himself into [her]” and the
appellant “being so violent” that her leg hurt because he was
grabbing it so hard.15 The military judge admitted this evidence
under MIL. R. EVID. 413.16

     We review “a military judge’s decision to admit evidence
for an abuse of discretion.” United States v. Solomon, 72 M.J.
176, 179 (C.A.A.F. 2013) (citing United States v. Ediger, 68
M.J. 243, 248 (C.A.A.F. 2010)). “‘The abuse of discretion
standard is a strict one, calling for more than a mere
difference of opinion. The challenged action must be arbitrary,
fanciful, clearly unreasonable, or clearly erroneous.’” United
States v. White, 69 M.J. 236, 239 (C.A.A.F. 2010) (quoting
United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F. 2010)).


quintillion Caucasian individuals and that a quintillion is a number with 18
zeroes behind it. Id. at 607.
14
     Appellant’s Brief of 20 Jan 2015 at 7.
15
     Record at 708.
16
  Record at 220, 696-97. On 22 June 2015, the military judge issued five
documents concerning matters raised at trial, one of which is captioned
“Findings of Fact and Conclusions of Law Concerning the Admission of Evidence
under MIL. R. EVID. 413 and MIL. R. EVID. 404(b)” (hereinafter “Ruling on
Admission”) at 5. These documents were attached to the record prior to
authentication and are located in front of the Article 32 Report. The
documents are not marked as appellate exhibits.
                                         4
     MIL. R. EVID. 413(a) provides, “In a court-martial in which
the accused is charged with an offense of sexual assault,
evidence of the accused’s commission of one or more offenses of
sexual assault is admissible and may be considered for its
bearing on any matter to which it is relevant.” Thus,
“[i]nherent in M.R.E. 413 is a general presumption in favor of
admission.” United States v. Berry, 61 M.J. 91, 95 (C.A.A.F.
2005) (citation omitted).

     The “three threshold requirements for admitting evidence of
similar offenses in sexual assault cases under M.R.E. 413
[include]: (1) the accused must be charged with an offense of
sexual assault; (2) the proffered evidence must be evidence of
the accused’s commission of another offense of sexual assault;
and (3) the evidence must be relevant under M.R.E. 401 and
M.R.E. 402.” Solomon, 72 M.J. at 179 (citations omitted). In
order to meet the second requirement, the military judge must
conclude that the members “could find by [a] preponderance of
the evidence that the offenses occurred.” United States v.
Wright, 53 M.J. 476, 483 (C.A.A.F. 2000) (citing Huddleston v.
United States, 485 U.S. 681, 689-90 (1988)).

     Once the threshold requirements are met, “the military
judge is constitutionally required to also apply a balancing
test under M.R.E. 403.” Solomon, 72 M.J. at 179-80 (citing
Berry, 61 M.J. at 95). In conducting the MIL. R. EVID. 403
balancing test, “the military judge should consider the
following non-exhaustive factors”:

     strength of proof of the prior act (i.e., conviction
     versus gossip); probative weight of the evidence;
     potential for less prejudicial evidence; distraction
     of the factfinder; time needed for proof of the prior
     conduct; temporal proximity; frequency of the acts;
     presence or lack of intervening circumstances; and the
     relationship between the parties.

Id. at 180 (citation omitted). “When a military judge
articulates his properly conducted M.R.E. 403 balancing test on
the record, the decision will not be overturned absent a clear
abuse of discretion.” Id. (citing United States v. Manns, 54
M.J. 164, 166 (C.A.A.F. 2000)).

     In this case, the military judge found sufficient evidence
in Ms. GC’s expected testimony to meet the required



                                5
preponderance standard.17 He also found the evidence relevant
because of commonalities between the two alleged sexual
assaults, including: (1) YN2 CM and Ms. GC each became
intoxicated while drinking with the appellant; (2) both alleged
victims were married to Sailors deployed at the time of the
alleged assaults; and (3) both were assaulted while they were
asleep or substantially incapable of consenting due to their
intoxication.18 The appellant contends that the military judge
failed to conduct an adequate balancing test under MIL. R. EVID.
403 and that the proper balancing test requires exclusion of Ms.
GC’s testimony. We disagree with both contentions.

        In his written conclusions the military judge stated:

        I further find that the evidence is relevant and that
        its probative value is not substantially outweighed by
        the danger of unfair prejudice, confusion of the
        issues, misleading the members, or by consideration of
        undue delay. In reaching this conclusion, I
        considered the fact that the [appellant] was acquitted
        of the prior sexual assault and sodomy involving [Ms.
        GC]; the credibility of her testimony-which I found to
        be credible; the similarities between the two
        incidents-which are striking, and possibility of
        confusion of the issue to the members.19

     Contrary to the appellant’s assertion that admitting this
evidence created “a distracting mini-trial,” we find the
military judge properly narrowed the Government’s presentation
of this evidence, stating, “I do not intend that there be
another trial on the merits regarding this. It’s going to be
very limited in scope, it will be the date on which this event
occurred, the fact that the underlying facts that they went
out, had drinks together, came back to the--her home, and she
has a fragmented memory, woke up to the [appellant] having
sexual intercourse with her or performing sexual acts upon
her, and it was subsequently reported.”20 The record reveals
that the Government adhered to the military judge’s narrow
parameters in presenting Ms. GC’s testimony.21 The military
17
     Record at 220.
18
     Ruling on Admission at 4.
19
     Id. at 4-5.
20
     Record at 220-21.
21
     Id. at 698-709.
                                   6
judge permitted the defense significantly more latitude in
cross-examination.22

     We also find that the military judge addressed the bulk of
the Solomon MIL. R. EVID. 403 balancing factors in concluding it
was proper to admit Ms. GC’s testimony. Although he did not
specifically address temporal proximity of the prior alleged
sexual assault, this factor weighs in favor of admission
because only two years separated the offenses. The sole
factor supporting exclusion -- the lack of frequency of the
prior acts -- is overcome by the other factors that weigh
substantially in favor of admission. Finally, the military
judge properly instructed the members with regard to the use
of this evidence.23 Accordingly, we find the military judge
did not abuse his discretion in admitting this evidence under
MIL. R. EVID. 413.

II.     Individual Military Counsel Request

     A military judge’s ruling on an individual military counsel
(IMC) request is a mixed question of fact and law. We review
the findings of fact under a clearly erroneous standard and the
conclusions of law de novo. United States v. Spriggs, 52 M.J.
235, 244 (C.A.A.F. 2000). Here we concur with the military
judge’s factual findings and adopt them as our own.

     Prior to the Article 32 hearing in his case, the appellant
requested Lieutenant (LT) Mishonda Mosley, JAGC, USN as an IMC
under RULE FOR COURTS-MARTIAL 506, MANUAL FOR COURTS-MARTIAL, UNITED STATES
(2012 ed.) and the Manual of the Judge Advocate General, Judge
Advocate General Instruction 5800.7F § 0131 (26 Jun 2012)
(JAGMAN). At the time, LT Mosley was assigned to Defense
Service Office Pacific -- headquartered in Yokosuka, Japan with
branch offices in Hawaii, Guam, and Sasebo, Japan. All
proceedings in this case were scheduled in the Navy-Marine Corps
Trial Judiciary’s Hawaii Judicial Circuit. The special court-
martial convening authority determined LT Mosley was not
reasonably available under the applicable JAGMAN provision and
denied the IMC request. Following referral of the charges, the

22
     Id. at 221.
23
  Id. at 882-83. The military judge also exercised the “sensitivity
[required] when making the determination to admit evidence of prior acts that
have been the subject of an acquittal,” United States v. Griggs, 51 M.J. 418,
420 (C.A.A.F. 1999), as he properly instructed the members about the
appellant’s acquittal on the allegations by Ms. GC. Record at 883.


                                      7
appellant renewed his request via the general court-martial
convening authority who similarly determined LT Mosley was not
reasonably available and denied the appellant’s request. At
trial, the appellant filed a motion with the court again seeking
appointment of LT Mosley as his IMC, which the military judge
denied.24

     Article 38(b), UCMJ, permits an accused to be represented
by an IMC of his own selection if that counsel is “reasonably
available” and further provides for the Secretary of each
Military Department to define “reasonably available” as well as
establish procedures for determining whether a requested IMC is
“reasonably available.” JAGMAN § 0131 is the governing
regulation for the Department of the Navy and provides that
counsel are not “reasonably available” if they are assigned to
commands located outside the Trial Judicial Circuit where the
proceeding is to be held, unless the requested counsel is
permanently assigned within 500 miles of the situs of the
proceeding. Despite the requested IMC’s command possessing a
branch office in Hawaii, LT Mosley was permanently stationed at
a command outside the Hawaii Judicial Circuit and more than 500
miles from the situs of the proceeding. From a clear and plain
reading of the governing regulation, LT Mosley was not
“reasonably available,” and denial of the appellant’s request
for her as IMC was proper. Thus we deny the appellant relief on
this ground.

III.     Legal and Factual Sufficiency

     The appellant also claims that the evidence is legally and
factually insufficient to support the members’ guilty findings,
specifically that the evidence presented did not show that YN2
CM was too intoxicated to consent or was asleep at the time of
the alleged sexual assault.

     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, 324-25 (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 test for factual
sufficiency is whether, after weighing all the evidence in the
record of trial and recognizing that we did not see or hear the
witnesses, this court is convinced of the appellant's guilt

24
     Id. at 216.
                                   8
beyond a reasonable doubt. Turner, 25 M.J. at 325; see also
Art. 66(c), UCMJ. 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 fact
finder may believe one part of a witness’ testimony and
disbelieve another. Id. When weighing the credibility of a
witness, this court, like a fact finder at trial, examines
whether discrepancies in witness testimony resulted from an
innocent mistake, such as a lapse of memory, or a deliberate
lie. Id. at 844.

     Here, there is sufficient evidence in the record to prove
both sexual assault charges. LS2 DK and Mr. JR25 testified that
YN2 CM was asleep on the couch shortly after returning to LS2
DK’s house and that the appellant was also on the couch. YN2 CM
testified that she awoke to a man engaging in sexual intercourse
with her. DNA evidence identified the appellant’s semen from
swabs taken from YN2 CM during her sexual assault examination.
The bar receipts, percipient witness testimony, and expert
testimony provides sufficient evidence to conclude that YN2 CM
was incapable of consenting to sexual intercourse due to her
alcohol impairment.

     After carefully reviewing the record of trial and
considering the evidence in the light most favorable to the
prosecution, we are convinced that a reasonable fact finder
could have found all the essential elements beyond a reasonable
doubt. Furthermore, after weighing all the evidence in the
record of trial and having made allowances for not having
personally observed the witnesses, we are convinced beyond a
reasonable doubt of the appellant's guilt.

IV.   Unreasonable Multiplication of Charges

     The members convicted the appellant inter alia of a single
specification of committing a sexual act upon YN2 CM while she
was asleep and a single specification of committing a sexual act
upon YN2 CM while she was incapable of consenting due to alcohol

25
  Mr. JR was LS2 DK’s former boyfriend and he also stayed at LS2 DK’s house
the night in question. Earlier that night he attempted, at LS2 DK’s request,
to pick up the group and drive them to LS2 DK’s house after they left the
bar. But he was unable to do so because LS2 DK did not answer his phone
calls while he waited for them outside the bar. He testified that he became
angry at his inability to contact LS2 DK and that he eventually left and
drove back to LS2 DK’s house. He testified that when he arrived at LS2 DK’s
house he observed YN2 CM asleep on the L-shaped couch and a man asleep on the
other end of the couch. Id. at 436-38.


                                      9
impairment. After findings, the military judge and counsel
engaged in the following discussion on the record:

MJ: Okay, I want to discuss with counsel the fact that the
government presented two theories of liability.

TC:     I think the max punishment is 31 years, sir.

MJ: I’m getting there, but what I was—what I propose to do was
to merge the two specifications into one specification.

TC:     No objection, Your Honor.

MJ:     Defense?

CDC:     No objection.26

. . . .

MJ: What we’re going to do is we’ve also calculated the maximum
permissible punishment at 31 years; that’s based on the merger
of Specifications 1 and 2 of Charge I. And [civilian defense
counsel], have you seen the merger?

CDC:     I have, sir.

MJ:     Any objection to that?

CDC:     No, sir.

MJ: Okay, very well. Let’s provide the members with a copy of
the new cleansed charge sheet, the—go ahead, you can put that on
the folder of each member’s desk.27

     The appellant avers and the Government agrees28 that the
military judge merged the specifications for sentencing
purposes. But, we find nothing in the military judge’s
statements or otherwise in the record to conclude that he merged
the specifications solely for sentencing. “When a ‘panel
return[s] guilty findings for both specifications and it was
agreed that these specifications were charged for exigencies of

26
     Id. at 898.
27
     Id. at 905; Appellate Exhibit LXVIII.
28
     Government Brief at 31.


                                        10
proof, it [is] incumbent’ either to consolidate or dismiss a
specification.” United States v. Mayberry, 72 M.J. 467, 467-68
(C.A.A.F. 2013). Prior to merging the specifications, the
military judge recognized that the Government presented two
theories of liability for the appellant’s single act of sexual
assault. Thus, we conclude the military judge actually intended
to consolidate the two specifications into a single
specification. We note the CA’s action fails to reflect the
consolidation and the appellant is entitled to accurate records,
thus we direct corrective action in our decretal paragraph.
United States v. Crumpley, 49 M.J. 538, 539 (N.M.Ct.Crim.App.
1998).

                           Conclusion

     The supplemental court-martial order will reflect that the
appellant was found guilty of the following specification under
Charge I:

    In that Construction Mechanic Third Class Adam S.
    Nelms, U.S. Navy, Construction Battalion Maintenance
    Unit THREE ZERO THREE, on active duty, did, on the
    island of Oahu, Hawaii, on or about 7 September 2013,
    commit sexual acts upon C.J.M. by penetrating C.J.M.’s
    vulva with his penis when the said CM3 Nelms
    reasonably should have known that C.J.M. was asleep
    and when C.J.M. was incapable of consenting to the
    sexual act because she was impaired by an intoxicant,
    to wit: alcohol, and that condition reasonably should
    have been known by the said CM3 Nelms.

The findings and sentence as approved by the convening authority
are affirmed.

    Judge PALMER and Judge CAMPBELL concur.

                             For the Court




                             R.H. TROIDL
                             Clerk of Court




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