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

                                  Before
              R.Q. WARD, J.R. MCFARLANE, K.M. MCDONALD
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                        RUSSELL L. FENDER
                  SERGEANT (E-5), U.S. MARINE CORPS

                           NMCCA 201300334
                       GENERAL COURT-MARTIAL


Sentence Adjudged: 2 May 2013.
Military Judge: CDR John Maksym, JAGC, USN.
Convening Authority: Commanding General, 3d Marine
Logistics Group, Okinawa, Japan.
Staff Judge Advocate's Recommendation: Maj P.D. Sanchez,
USMC.
For Appellant: Capt David Peters, USMC.
For Appellee: Maj Crista Kraics, USMC.

                              29 May 2014

     ---------------------------------------------------
                     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:

     The appellant entered mixed pleas at trial by general
court-martial with enlisted members. Pursuant to his pleas, the
military judge found the appellant guilty of one specification
of violating a lawful general order (fraternization), in
violation of Article 92, Uniform Code of Military Justice, 10
U.S.C. § 892. The members then convicted the appellant,
contrary to his pleas, of one specification of maltreatment, one
specification of making a false official statement, and one
specification of indecent exposure, in violation of Articles 93,
107, and 120, Uniform Code of Military Justice, 10 U.S.C. §§
893, 907, and 920. The members sentenced the appellant to one
year of confinement, reduction to pay grade E-1, forfeiture of
all pay and allowances, and a bad-conduct-discharge. The
convening authority (CA) approved the sentence as adjudged, and
except for the punitive discharge, ordered the sentence
executed.

     The appellant raises two assignments of error. First, he
claims that his conviction for making a false official statement
is legally and factually insufficient because the appellant’s
allegedly false statement was immaterial to the Naval Criminal
Investigative Service (NCIS) inquiry and could not have resulted
in any material gain. 1 Second, he claims that his right to due
process was violated because the record of trial reflects that
the military judge erroneously instructed the members on the
maximum punishment. We disagree. After carefully considering
the record of trial and the submissions of the parties, we are
convinced 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.

                          False Official Statement

     The appellant, a 32-year-old sergeant, was interviewed by
NCIS about his relationship with a junior female lance corporal
in his unit. At one point in the interview, the NCIS agent
asked the appellant whether he had ever flirted with the lance
corporal. The question was asked because a few days prior, she
told her Company First Sergeant that the appellant said, “if [I]
wasn’t a Sergeant [I] would chase [you] around like all the
other males except not just to f***.” 2 The lance corporal’s
brother, also a Marine lance corporal, was present when the
appellant made this comment and, at trial, corroborated that the
appellant used the word “f***.”

      The appellant repeatedly denied using the word “f***”
during his interview with NCIS. The appellant told the NCIS


1
    Appellant’s Brief and Assignment of Error of 18 Nov 2013 at 1.
2
    Record at 667.


                                        2
agent that he once told her she was cute and that “if I wasn’t a
Sergeant, I would try to talk to her.” 3

     Prior to deliberations on findings, the military judge
instructed the members on the elements of Article 107 and
specifically explained the term “intent to deceive.” The
military judge did not provide, and the trial defense counsel
did not request, an instruction to the members on whether they
needed to consider the appellant’s “expectation of material
gain” 4 to prove or disprove intent.

     The appellant argues that his conviction for making a false
official statement is factually and legally insufficient because
“there is no evidence [the appellant] had an expectation of
material gain 5 by falsely denying the use of the word ‘f***’” 6
during his interview with NCIS. We find no merit to this claim.

     We review questions of legal and factual sufficiency de
novo. United States v. Winckelmann, 70 M.J. 403, 406 (C.A.A.F.
2011). We review the legal sufficiency of the evidence by
determining “whether, considering the evidence in the light most
favorable to the prosecution, any reasonable fact-finder could
have found all the essential elements beyond a reasonable
doubt.” United States v. Day, 66 M.J. 172, 173-74 (C.A.A.F.
2008) (citing United States v. Turner, 25 M.J. 324, 324 (C.M.A.
1987)). We also review the factual sufficiency of the members’
findings. 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 as did the trial
court, this court is convinced of the accused's guilt beyond a
reasonable doubt.” United States v. Rankin, 63 M.J. 552, 557
(N.M.Ct.Crim.App. 2006) (citing Turner, 25 M.J. at 325 and Art.
66(c), UCMJ), aff’d, 64 M.J. 348 (C.A.A.F. 2007). Reasonable
doubt, however, does not mean the evidence must be free from
conflict. Id.

     The appellant relies on the explanatory material set forth
in Part IV of the Manual for Courts-Martial dealing with Article

3
    PE 10, CD of 8 May 2012 NCIS Interview.
4
    MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), Part IV ¶ 31c(4).
5
  The MCM, Part IV ¶ 31c(4) states: “Material gain: The expectation of
material gain is not an element of this offense. Such expectation, or lack
of it, is circumstantial evidence bearing on the element of intent to
deceive.”
6
    Appellant’s Brief at 6.
                                            3
107 to argue that the evidence was insufficient to prove his
intent to deceive. Specifically, paragraph 31c(4) advises that
the [appellant’s] expectation or lack of expectation that he
will gain something from his false representations is
circumstantial evidence that bears on his intent to deceive.
The appellant contends that because he had nothing to gain by
lying to NCIS, the Government’s evidence was insufficient to
convict him of the Article 107 offense. We are not persuaded by
this argument. By minimizing the offensive nature of his
comments, the appellant could have reasonably hoped to reduce
the nature or extent of punishment he might receive.

     After carefully reviewing the record of trial and
considering the evidence in the light most favorable to the
prosecution, we are persuaded that a reasonable fact-finder, in
this case a panel of members, could indeed have found all the
essential elements beyond a reasonable doubt. See United States
v. Dobson, 63 M.J. 1, 21 (C.A.A.F. 2006). 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. See Turner, 25 M.J. at 325.

                        Maximum Sentence Instruction

     Prior to issuing sentencing instructions, the military
judge, the appellant, and the Government agreed that the maximum
punishment included nine years’ confinement, reduction to pay
grade E-1, a fine, total forfeitures, and a dishonorable
discharge. However, the record of trial transcript reflects
that the military judge instructed the members that the maximum
amount of confinement was ninety years. 7 After the appellant’s
submission of error, the appellee moved to attach a Certificate
of Correction 8 prepared by the military judge. We granted the
appellee’s Motion to Attach and are confident that the members
were properly instructed on the maximum sentence and that the
appellant’s due process rights were not violated.




7
    Record of Trial at 921.
8
  Certificate of Correction, dated 5 December 2013 adds the following language
to the verbatim record of trial: “Page 921 on line 21 it reads, ‘to be
confined for 90 years,’ which should be corrected to read, ‘to be confined
for 9 years.’”
                                      4
                          Conclusion

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

                                For the Court


                                R.H. TROIDL
                                Clerk of Court




                                5
