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

                                 Before
            J.A. FISCHER, K.J. BRUBAKER, K.M. MCDONALD
                       Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                           LEE R. SYKES
                  SERGEANT (E-5), U.S. MARINE CORPS

                            NMCCA 201400144
                        SPECIAL COURT-MARTIAL

Sentence Adjudged: 5 December 2013.
Military Judge: LtCol Leon Francis, USMC.
Convening Authority: Commanding General, 1st Marine
Logistics Group, Camp Pendleton, CA.
Staff Judge Advocate's Recommendation: Capt A. Chapman III,
USMC.
For Appellant: LT Jonathan Hawkins, JAGC, USN.
For Appellee: Maj Suzanne Dempsey, USMC; LCDR Keith
Lofland, JAGC, USN.

                             30 April 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 special court-martial consisting of officer and enlisted
members convicted the appellant, contrary to his pleas, of one
specification each of violating a lawful general regulation by
committing fraternization and adultery in violation of Articles
92 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 92
and 134. The appellant was sentenced to reduction to pay grade
E-1 and a bad-conduct discharge. The convening authority (CA)
approved the sentence as adjudged and, except for the bad-
conduct discharge, ordered it executed.

     The appellant now alleges three assignments of error (AOE):
1) the trial counsel’s sentencing argument was improper; 2) the
charges against him were unreasonably multiplied; 1 and 3) the
military judge erred by describing the appellant’s invocation of
his constitutional right not to testify as a “failure” in his
findings instructions to the members.

     After careful consideration of the record of trial and the
parties’ pleadings, 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.

                                Factual Summary

     The appellant, a married man, and Sergeant (Sgt) AG, a
married woman, worked together in Combat Logistics Regiment
(CLR) 17, Communications Company. 2 While their interactions
initially were professional, their relationship evolved into a
romantic and sexual one. When Sgt AG first joined CLR 17, the
appellant was not in her chain of command, 3 but at some point
after their sexual relationship had begun, Sgt AG reported
directly to the appellant. 4

     The appellant and Sgt AG first began communicating through
text messages, discussing personal and professional matters. 5
They met for the first time outside of work behind the Field
Company barracks in the appellant’s car to avoid being seen
together. 6 A short time after that, the appellant invited Sgt AG
over to his home, where they had dinner, drank, and eventually

1
  Having reviewed the record, we find this assignment of error raised by the
appellant to be without merit. United States v. Clifton, 35 M.J. 79, 81-82
(C.M.A. 1992).
2
    Sgt AG was discharged from the Marine Corps in January 2013.
3
    Record at 168.
4
    Id. at 209.
5
    Id. at 169.
6
    Id. at 170.


                                        2
had sexual intercourse. 7 For several months afterwards, they
continued to have sexual intercourse, and Sgt AG would spend the
night at the appellant’s apartment two or three nights a week. 8
Following the Marine Corps Ball, the appellant and Sgt AG spent
the night together in a hotel. 9 Shortly afterwards, they
mutually decided to end their relationship.

         Further facts relevant to the AOEs are developed below.

                                Improper Argument

     The appellant’s first AOE argues that the trial counsel’s
sentencing argument was improper in that it invited the members
to consider the misconduct between the appellant and Sgt AG as
evidence of his failure to “learn his lesson” from his earlier
court-martial conviction and nonjudicial punishment (NJP),
despite the fact that the alleged misconduct for which he was on
trial occurred over a year prior to those two events.

Background

      From April 2011 to July 2013 the appellant engaged in four
separate instances of misconduct for which he was either
disciplined or counseled. The earliest alleged misconduct
involved the appellant and Sgt AG and spanned from April to
November 2011. 10 From November 2011 to March 2012, the appellant
fraternized with another female Marine, Lance Corporal (LCpl)
AC. 11 In October 2012, charges were preferred against the
appellant alleging that he fraternized with LCpl AC. 12 Then, in
January 2013, the appellant was counseled by his commanding
officer for failing to perform at the level of staff
noncommissioned officer (NCO) for signing a urinalysis testing
register “XOXOXO.” 13 In March 2013, charges were preferred



7
     Id. at 172.
8
     Id. at 173-74, 207, 214.
9
     Id. at 186-87.
10
     Id. at170, 191.
11
     Prosecution Exhibit 11 at 3.
12
     Appellate Exhibit XXIII at 1.
13
     PE 10 at 4.


                                        3
against the appellant for his relationship with Sgt AG. 14 At
that time, the appellant already had charges referred to a
special court-martial relating to alleged fraternization with
another Marine in his unit – LCpl AC. In May 2013, the
appellant was tried and found guilty by a special court-martial
of fraternizing with LCpl AC and sentenced to reduction in pay
grade to E-5 and a written reprimand. 15 A month later, the CA
referred the charges against the appellant for his misconduct
with Sgt AG to a special court-martial. 16 In July 2013, before
the appellant’s second court-martial began, the appellant
received NJP for disrespecting a superior commissioned officer. 17

     Finally, in December 2013, the appellant’s special-court
martial in the instant case began. During presentencing
arguments, trial counsel argued that the appellant had not
“learn[ed] his lesson” from his misconduct in the instant case,
the previous special court-martial, and NJP. 18 Specifically,
trial counsel stated:

       Now, the accused’s actions after the misconduct
       occurred, and after his previous court-martial indicate
       that he didn’t get rehabilitated last time, he didn’t
       learn his lesson. . . . In January of this year, prior
       to this first court-martial but over a year after the
       misconduct occurred, he gets negative paperwork for a
       petty action, something you wouldn’t expect of a staff
       noncommissioned officer.

       And then in July, two months after he was convicted in his
       prior court-martial, he was reduced, he was reprimanded, and
       he gets NJPed. An NJP for disrespect towards a superior
       commissioned officer. Now, these are not the actions of
       somebody who learned their lesson, accepted responsibility,
       and moved forward.

14
  The charges involving Sgt AG stemmed from an interview that the trial
counsel had with Sgt AG that took place around the third week of March, 2013.
The interview was conducted in preparation for the special court-martial of
another Marine implicated as a co-conspirator in the appellant’s first court-
martial. Record at 51.
15
     PE 11 at 3-4.
16
     Charge Sheet.
17
     PE 10 at 6-7.
18
     Record at 429-30.


                                      4
       [H]im moving forward . . . didn’t happen last time. The
       reduction and the reprimand weren’t enough, but
       rehabilitation needs to occur, and it’s going to take
       something more serious. 19

The appellant’s trial defense counsel did not object to trial
counsel’s closing argument.

Law

     We review allegations of improper argument raised for the
first time on appeal for plain error. United States v.
Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005). To show plain
error, the appellant “has the burden of demonstrating that: (1)
there was error; (2) the error was plain or obvious; and (3) the
error materially prejudiced a substantial right of the
[appellant].” United States v. Tunstall, 72 M.J. 191, 193-94
(C.A.A.F. 2013) (citation and internal quotation marks omitted).
The plain error doctrine is “to be used sparingly, solely in
those circumstances in which a miscarriage of justice would
otherwise result.” United States v. Causey, 37 M.J. 308, 311
(C.M.A. 1993) (citations and internal quotations omitted).

     Trial counsel may not “unduly . . . inflame the passions or
prejudices of the court members.” United States v. Marsh, 70
M.J. 101, 106 (C.A.A.F. 2011) (citations and internal quotation
marks omitted). Argument must be limited to the “‘evidence of
record, as well as all reasonable inferences fairly derived from
such evidence.’” United States v. Frey, 73 M.J. 245, 248
(C.A.A.F. 2014) (quoting United States v. Baer, 53 M.J. 235, 237
(C.A.A.F. 2000)). “Where improper argument occurs during the
sentencing portion of the trial, we determine whether or not we
can be ‘confident that [the appellant] was sentenced on the
basis of the evidence alone.’” Id. (quoting United States v.
Halpin, 71 M.J. 477, 480 (C.A.A.F. 2013) (brackets in
original)).

Analysis

     We find that the appellant has failed to show that there
was plain or obvious error in the trial counsel’s presentencing
argument. However, assuming arguendo that trial counsel’s
presentencing argument was improper, we find that the appellant
has failed to demonstrate that any error was materially

19
 Id.

                                  5
prejudicial to a substantial right. For several reasons, we
find that trial counsel’s argument was not so damaging that we
cannot be “confident that the appellant was sentenced on the
basis of the evidence alone.” Frey, 73 M.J. at 248 (citation
and internal punctuation omitted).

     First, the minimal impact of trial counsel’s argument is
measured, in part, by the lack of defense objection to the
argument. See United States v. Gilley, 56 M.J. 113, 123
(C.A.A.F. 2001) (finding lack of a defense objection is some
measure of the minimal impact of a trial counsel’s improper
comment). While trial counsel’s argument may have been an inapt
summation of evidence that failed to accurately depict the
chronology of events, any confusion was cured by defense
counsel’s subsequent argument, which clarified the timeline of
the appellant’s misconduct. 20 Additionally, the members had in
their possession during sentencing deliberations Prosecution
Exhibit 10, which stated the dates of the appellant’s alleged
misconduct for which he was convicted at his prior special
court-martial, the NJP, and his written counseling for failing
to perform at the level of a staff NCO.

     Second, we find that trial counsel’s reference to the
appellant’s conduct and punishment after the misconduct in this
case was not materially prejudicial. The appellant’s prior
special court-martial, counseling, and NJP were properly
admitted into evidence. Thus, even without any indication by
trial counsel, the members would have been aware of the
appellant’s subsequent misconduct through the appellant’s
personnel file and unsworn statement.

     Third, the theme of the trial counsel’s argument that the
appellant was not being rehabilitated was a reasonable
inference: the appellant committed the misconduct at issue in
this case, then he committed further fraternization for which he
was tried at his previous court-martial. While charges were
pending against him, he committed further misconduct by acting

20
   “. . . this is his second court-martial, there’s a prior conviction for
fraternization. And the trial counsel would have you believe that that means
that this Marine is not being rehabilitated. He’s flagrantly breaking the
law again and again, and again. But if you look more closely at those dates,
look at the time alleged in the misconduct, the facts that you’ve had before
you took place between April and November of 2011, over 2 years ago. The
facts that were adjudged at the last court-martial took place between
November 2011 and March of 2012. So how can it be said that the accused,
after his trial in May of 2013, flagrantly went back to break the law when
all of the facts in this court-martial and that court-martial took place in
2011 and early 2012.” Record at 433.
                                     6
outside of the expected conduct of a staff NCO. In between the
two courts-martial, he received NJP for this misconduct. “[A]
person's rehabilitative potential is based upon his entire
character, morality, and determination to succeed. In forming
an opinion about rehabilitative potential, knowledge of a
person's success or failure in previous efforts to recover is
extremely helpful.” United States v. Wilson, 31 M.J. 91, 94
(C.M.A. 1990) (citation omitted). Thus, “the fact that the
accused has failed to recover [in the past] is an extremely
important and rational basis upon which to form a conclusion.”
Id. (citation omitted). In this case, the appellant’s
disciplinary record does not indicate, as the appellant stated
during his unsworn statement, a commitment “[s]ince [his] first
court-martial—even before [his] first court-martial . . . to
trying to make up for the mistakes” that he has made. 21 In fact,
his conduct prior to and after his first court-martial indicates
the opposite.

     Finally, “we will consider in determining the
appropriateness of the sentence, the sentence adjudged by itself
and in conjunction with the sentence of his first . . . court-
martial.” United States v. Rascoe, 31 M.J. 544, 563 n.21
(N.M.C.M.R. 1990). In doing so we find that the sentence
adjudged at this court-martial was appropriate. While
“traditional military practice favor[s trying] an accused for
all known charges at the same court-martial,” it is not
required, and we find no evidence of unreasonable or vexatious
Government conduct. Id. Furthermore, the military judge found
the defense originally objected to such joinder. 22

     Though the members in this case adjudged the sentence
requested by trial counsel, both counsel requested reduction to
E-1 and only differed in that trial counsel requested a bad-
conduct discharge (BCD) and defense counsel requested a
reprimand. 23 Trial counsel’s sentencing request was
substantially less than the maximum punishment allowed for
fraternization and adultery. Additionally, a BCD was
appropriate in this case because, standing alone, the
appellant’s ongoing fraternization and adultery with his
subordinate for approximately eight months would warrant such a
punishment. Considered in conjunction with the sentence of the
appellant’s first court-martial, where he was reduced to E-5 and

21
     Record at 417.
22
     Id. at 69; see also id. at 31-32.
23
     Id. at 432, 437.
                                         7
reprimanded, a BCD is “appropriate for an accused who has been
convicted repeatedly of minor offenses and whose punitive
separation appears to be necessary[.]” RULE FOR COURTS-MARTIAL
1003(b)(8)(C), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.).

      Improper Reference to the Appellant’s “Failure” To Testify

     In the appellant’s third AOE, he claims that the military
judge’s reference to his invocation of his right to remain
silent as a “failure” was improper and contributed to his
conviction.

Background

     Before deliberation on findings, the military judge
instructed the members as to how they may consider the
appellant’s “failure” to testify. 24 Nearly verbatim from the
Military Judges’ Benchbook, Dept. of the Army Pamphlet 27-9 at ¶
7-12 (01 Jan 2010), the military judge stated: “The accused’s
failure to testify. The accused has an absolute right to remain
silent. You will not draw any inference adverse to the accused
from the fact that he did not testify as a witness. The fact
that the accused has not testified must be disregarded by you.” 25
There was no objection to these instructions. 26

Law

     The question of whether a jury was properly instructed is a
question of law and is reviewed de novo. United States v. Pope,
69 M.J. 328, 333 (C.A.A.F. 2011). Counsel’s failure to “object
to an instruction . . . before the members close to deliberate
constitutes waiver of the objection in the absence of plain
error.” R.C.M. 920(f). To show plain error, the appellant has
the burden of demonstrating: “(1) there was error; (2) the error
was plain or obvious; and (3) the error materially prejudiced a
substantial right of the [appellant].” United States v.
Girouard, 70 M.J. 5, 11 (C.A.A.F. 2011) (citation and footnote
omitted). An error is not materially prejudicial if it was not
a factor in obtaining the appellant’s conviction. See Pope, 69
M.J. at 334-35.



24
     Record at 347.
25
     Id.
26
     Id. at 351.
                                  8
     If the appellant shows a constitutional error, the burden
shifts to the Government to show the error was harmless beyond a
reasonable doubt. United States v. Brewer, 61 M.J. 425, 432
(C.A.A.F. 2005).

     A challenged instruction is not reviewed in isolation;
rather, it is reviewed within the context of the entire record
of trial and set of instructions. See United States v. Simpson,
56 M.J. 462, 466 (C.A.A.F. 2002) (citing Estelle v. McGuire,
502 U.S. 62, 72 (1991) and Cupp v. Naughten, 414 U.S. 141,
147 (1973)). Cf. Francis v. Franklin, 471 U.S. 307, 319-20
(1985) (general instructions as to the Government’s burden and
the accused’s presumption of innocence do not dissipate errors
made in specific instructions that seem to shift the burden to
the defense). Finally, we presume the members understood and
followed a military judge’s instruction in the absence of
evidence to the contrary. United States v. Holt, 33 M.J. 400,
408 (C.M.A. 1991).

Analysis

     Here, we find that the military judge did not plainly err
in referring to the appellant’s “failure to testify” while
instructing the members prior to findings. The military judge
instructed the members using a commonly-used “standard”
instruction that, 27 taken as a whole, clearly and correctly
indicated to the panel that the appellant’s absolute right to
remain silent could not be used against him. 28 The appellant
cites no case law supporting the argument that the “[i]nclusion
of the word ‘failure’ in the context of the accused not
testifying is clearly an improper comment . . . .” 29




27
  This court has referred to the instruction as a “failure to testify”
instruction. United States v. Forbes, 59 M.J. 934, 936 (N.M.Ct.Crim.App.
2004), aff’d, 61 M.J. 354 (C.A.A.F. 2005). The United States Court of
Appeals for the Armed Forces has stated that “[n]ot every prosecutorial
comment on the failure of an accused to testify is impermissible.” United
States v. Carter, 61 M.J. 30, 33 (C.A.A.F. 2005) (emphasis added).
28
  During voir dire, the members indicated that they would be able to follow
the following instruction: “You may expect or desire the accused to testify.
The accused has an absolute right not to testify. The fact that an accused
may elect not to testify in his own behalf may not be considered adverse to
the accused in any way.” Record at 90.
29
     Appellant’s Brief of 7 Aug 2014 at 28.


                                         9
     As the appellant states, the word “failure” can be defined
as “omission of expected . . . action.” 30 Contrary to the
appellant’s argument, the inclusion of the word “failure” does
not necessarily mean that the accused had a duty to testify and
did not. Rather, we interpret “failure to testify” in this
context to mean simply that the appellant did not testify.

     Even assuming arguendo that the instruction was error, it
was immediately cured by the military judge, who instructed that
“[t]he accused has an absolute right to remain silent” and no
adverse inference may be drawn from the fact that the accused
did not testify. 31 There were no other references at trial to
the appellant’s decision not to testify. When the military
judge asked the members if they had any questions regarding the
instructions, they indicated that they did not. 32 Since there is
no evidence to the contrary, we presume that the members
understood and followed the military judge’s instructions. See
Holt, 33 M.J. at 408. Finally, the evidence presented at trial
overwhelming supported the appellant’s guilt on both charges.

     Accordingly, we hold that if there was error, it was not a
factor in obtaining the appellant’s conviction and was harmless
beyond a reasonable doubt. See Pope, 69 M.J. at 334-35; Brewer,
61 M.J. at 432.

                                     Conclusion

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

                                          For the Court




                                          R.H. TROIDL
                                          Clerk of Court




30
     Id. at 27 (citation omitted).
31
  Record at 347. The military judge also instructed the members to
“disregard any comment or statement or expressions made by me during the
course of the trial that might seem to indicate any opinion, on my part, as
to whether the accused is guilty or not guilty . . . .” Id. at 350.
32
     Id. at 351.
                                        10
