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

                                Before
           F.D. MITCHELL, J.R. MCFARLANE, K.J. BRUBAKER
                       Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                        TIMOTHY S. ZEPEDA
                  CORPORAL (E-4), U.S. MARINE CORPS

                           NMCCA 201300458
                       GENERAL COURT-MARTIAL


Sentence Adjudged: 26 July 2013.
Military Judge: LtCol Chris J. Thielemann, USMC.
Convening Authority: Commanding General, 1st Marine
Division (Rein), Camp Pendleton, CA.
Staff Judge Advocate's Recommendation: LtCol D.R. Kazmier,
USMC.
For Appellant: Daniel Conway, Esq.; Capt David Peters,
USMC.
For Appellee: CDR James E. Carsten, JAGC, USN.

                           26 November 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:

     Contrary to his pleas, a general court-martial consisting
of officers and enlisted members convicted the appellant of two
specifications of making a false official statement, one
specification of sexual assault, and one specification of
adultery in violation of Articles 107, 120, and 134 Uniform Code
of Military Justice, 10 U.S.C. §§ 907, 920, and 934. The
appellant was sentenced to confinement for eight years and a
dishonorable discharge. The convening authority approved the
sentence as adjudged and, except for the dishonorable discharge,
ordered it executed.

     The appellant now avers: (1) that the evidence against him
was not legally and factually sufficient to support his
conviction for sexual assault and adultery; and, (2) that his
sentence was inappropriately severe.

     After carefully considering the parties’ pleadings, the
appellant’s allegations of error, and the record of trial, 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.

                                    Facts

     On Saturday, 10 November 2012, at approximately 1500, the
appellant and other Marines with whom he had been deployed
gathered together for a small party in room 365 of the barracks.
Included in this group were Lance Corporal (LCpl) VH and his
wife TH. The group watched movies, drank alcoholic beverages,
played music, and ate pizza. Throughout the evening, TH drank
beer and shots of hard liquor. At around 2000 that night, after
TH had consumed nine beers and a few shots of hard liquor, TH
asked her husband to join her in the adjoining barracks room,
367, where they engaged in consensual sexual intercourse. 1 After
sexual intercourse, LCpl VH laid next to his still naked wife
until she fell asleep, at which time he returned to the party
through the shared bathroom.

     Sometime thereafter, the appellant left room 365, entered
room 367, locked the bathroom door and took off his clothes.
Five minutes after the appellant left room 365, LCpl VH went
through the shared bathroom to check on his wife, who was still
asleep in room 367, only to find the adjoining bathroom door
locked. LCpl VH pounded on the bathroom door in an attempt to
wake his wife. Not getting any response from his wife, LCpl VH

1
  LCpl VH and LCpl EG shared barracks room 365, which was connected to
barracks room 367 by a shared bathroom. LCpl ME and LCpl AU had shared
barracks room 367 until LCpl AU moved out on 10 November 2012, leaving LCpl
ME as the sole occupant of barracks room 367 on the evening of the party.
LCpl ME did not attend the party and room 367 was unoccupied when TH and her
husband made use of the room.


                                      2
and another Marine exited room 365, went to the catwalk outside
the front door to room 367 and started pounding on the exterior
door and window. Hearing the commotion, TH woke up, felt the
appellant on top of her and saw his face which was approximately
one foot above her. TH also felt the appellant’s penis inside
her vagina. TH then pushed the appellant off of her, wrapped
herself in the bed sheet and opened the front door to room 367.
When asked where he had been, the appellant stated that he went
to room 367 to sleep. LCpl EG asked the appellant to leave.
The following Monday, when questioned about the alleged sexual
assault, the appellant indicated that he did not enter the
barracks room where TH slept and that he did not have any sexual
contact with her.

     Additional pertinent facts are provided as necessary to
discuss the appellant’s assignments of error.

                     Legal and Factual Sufficiency

     In his first assignment of error, the appellant alleges
that the evidence presented at trial was legally and factually
insufficient to sustain his conviction for sexual assault and
adultery. The appellant specifically contends that the
Government failed to meet its burden at trial in that the
victim, TH, “could not testify that she witnessed the
penetration of her own vagina by [the appellant’s] penis” and
that there was no eyewitness or forensic evidence to support
TH’s claim of sexual assault. Appellant’s Brief of 4 Apr 2014
at 6-7. We disagree with both contentions.

Standard of Review

     We review questions of legal and factual sufficiency de
novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002). 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)). 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). Beyond a

                                   3
reasonable doubt, however, does not mean that the evidence must
be free from conflict. Id.

Elements of Sexual Assault and Adultery

     In order to convict the appellant of sexual assault,
Article 120(b)(2) requires that the Government prove beyond a
reasonable doubt that the appellant “commit[ed] a sexual act
upon another person when the person knows or reasonably should
have known that the person is asleep.” In this case, the sexual
act alleged in the specification was that the appellant placed
his penis in the vagina of TH. For adultery, the Government
must prove that the appellant (1) had sexual intercourse with a
certain person; (2) that, at the time, the accused or the other
person was married to someone else; and (3) that, under the
circumstances, the conduct of the accused was to the prejudice
of good order and discipline in the armed forces of a nature to
bring discredit upon the armed forces.

Analysis and Discussion

     LCpl VH testified at the appellant’s trial and indicated
that after he and his wife engaged in consensual sexual
intercourse in room 367, he lay down next to his wife until she
fell asleep. He then left the room through the bathroom and
went back to the party located in room 365. TH gave the
following testimony:

          Q: When you first began to become aware, your
     husband left the room and you fell asleep. When you
     first started to become aware at that time, what was
     the first thing you remember hearing or seeing or
     otherwise experiencing?
          A: I just hear all the banging on the window from
     the catwalk. I can hear my husband yelling my name,
     [the appellant’s] name. And then I can hear banging
     on the – through the head.

          Q: Were both of those things happening at the
     same time?
          A: I believe so. I couldn’t tell you. It felt
     like everything was just going on so fast. I do
     remember – I believe that it was banging on through
     the head. I think my husband was trying to get in. I
     believe he was just trying to come in through the
     head, but the door was locked because he couldn’t get
     in. And from there I could just hear, it just felt

                                4
     like everything was happening, and I think that’s what
     had woken me up because it was so loud.

          Q: So at that time when you first heard these
     things, did you open your eyes at that point?
          A: Yes, sir. I started to adjust my eyes. I
     started to wake up and I was on my back. I opened my
     eyes and I saw [the appellant] on top of me.

          Q: Describe in detail what did you see?
          A: His face above me with his hands wasn’t too
     terribly close.

          Q: You used your hands to sort of approximate
     that distance between your face and his?
          A: I would say maybe about a foot, maybe a little
     less than a foot.

Record at 442-43.

     TH further testified that she could directly see the
appellant’s face and that she got a “whole visual of him.” Id.
at 443. TH additionally went on to say during direct
examination:

          Q: And as you were beginning to hear these things
     and open your eyes, did you feel anything?
          A: Um, I felt him inside of me. From there it
     startled me the whole time him being that close. And
     then I think it was just kind of the fact of waking
     up. I’ve never been sexually assaulted before, so it
     was very shocking to me. . . . I think my whole body
     went into shock really quick. And being on top of me,
     his chest was not pressed into me, so I was able to
     move him off quick.

          Q: You said you felt him inside of you.   Can you
     be more specific?
          A: His penis inside my vagina.

Id. at 444.

     The appellant also contends that there was no forensic
evidence or eyewitness testimony to support his conviction.

     Immediately after the sexual assault, TH had a sexual
assault examination conducted in which deoxyribonucleic acid

                                5
(DNA) samples from her vagina, underwear, and labia were
collected. Id. at 556-68. Tests of those samples revealed the
appellant’s DNA on TH’s labia and underwear. The appellant
contends that the presence of his DNA on TH’s underwear was a
result of inadvertent transfer from the bed linens of LCpl AU’s
bed as the appellant had previously slept in the same bed in
which TH was sleeping. Appellant’s Brief at 7. We find this
argument unpersuasive. Mr. AU, formerly LCpl AU, testified that
his room was open for any member of the unit to use. Although
Mr. AU indicated that the appellant had napped on his rack in
the past, he had not hung out with him since after 25 October
2012. Mr. AU additionally indicated that when other Marines
would use his rack to nap, they were fully clothed and on top of
the covers. No DNA from Mr. AU or LCpl ME, the then-occupants
of room 367, was found in the samples taken from the victim and
her underwear.

     Given these facts, a reasonable fact-finder could have
found all of the essential elements for both sexual assault and
adultery. Moreover, and with due regard for the fact that we
did not observe the witnesses, we too are convinced of the
appellant's guilt beyond a reasonable doubt. Accordingly, we
find this assignment of error to be without merit.

                        Sentence Severity

     In his other assignment of error, the appellant contends
that his sentence is inappropriately severe. The appellant
specifically asserts that his sentence to eight years
confinement is inappropriately severe and asks this court to
only affirm a period of confinement between four and six years.

      Under Article 66(c), UCMJ, we independently review
sentences within our purview and only approve that part of a
sentence which we find should be approved. United States v.
Baier, 60 M.J. 382, 384-85 (C.A.A.F. 2005). With that in mind,
we note that “a court-martial is free to impose any legal
sentence that it determines is appropriate.” United States v.
Dedert, 54 M.J. 904, 909 (N.M.Ct.Crim.App. 2001) (citations
omitted). “When a sentence is before us for review, we ‘may
affirm . . . the sentence or such part or amount of the
sentence, as [we] find correct in law and fact and determine[],
on the basis of the entire record, should be approved.’” Id.
(quoting Art. 66(c), UCMJ). “Sentence appropriateness involves
the judicial function of assuring that 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

                                6
“‘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) (quoting United States v. Mamaluy, 27
C.M.R. 176, 180-81 (C.M.A. 1959)).
     In arguing that his sentence to eight years confinement is
inappropriately severe, the appellant cites to other military
Courts of Criminal Appeals (CCA) cases involving sexual assault
type offenses in which those appellants received more lenient
sentences. The appellant does concede, however, that this court
is not required to engage in sentence comparison with specific
cases “‘except in those rare instances in which the sentence
appropriateness can be fairly determined only by reference to
disparate sentences adjudged in closely related cases.’” United
States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999) (quoing United
States v. Ballard, 20 M.J. 282, 283 (C.M.A. 1985)) (additional
citation omitted). The appellant bears the burden of
demonstrating that any cited cases are “closely related” to his
or her case and that the sentences are “highly disparate.” Id.
The Court of Appeals for the Armed Forces, however, defines
“closely related” as those offenses which include, but not
limited to, co-actors involved in a common crime, service
members involved in a common or parallel scheme, or involve some
other direct nexus between the service members whose sentences
are sought to be compared. Id. In that regard, we find that
the appellant has not met his burden to show that his case and
the cases cited in his brief, many of which involve other CCAs,
are “closely related” requiring this court to engage in sentence
comparison with those cases. We therefore decline to do so.
     Finally, the appellant points to the fact that he completed
multiple deployments and was awarded the Purple Heart Medal
after being stabbed by a Taliban insurgent during hand to hand
combat while deployed to Afghanistan. He also indicated at
trial that he has a 14-month-old dependent son. Appellant’s
Brief at 13.
     While we find these facts to be mitigating, they must be
balanced against the nature and severity of the appellant’s
crimes. The appellant sexually assaulted the wife of a fellow
Marine while her husband sat in the adjoining room. Moreover,
he continued that assault even after her husband and fellow
Marines began crying out TH’s name and started pounding on the
locked barracks room door.
     After reviewing the entire record and the pleadings by both
parties, we too find that the sentence is appropriate for this

                                7
offender and his offenses. Baier, 60 M.J. at 384-85); Healy, 26
M.J. at 395-96; Snelling, 14 M.J. at 268. Any consideration of
appellant’s requested relief would amount to an act of clemency
which is left to the “command prerogative” of the convening
authority. Healy, 26 M.J. at 396.

                           Conclusion

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

                                For the Court




                                R.H. TROIDL
                                Clerk of Court




                                8
