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

                                 Before
               J.A. FISCHER, K.M. MCDONALD, D.C. KING
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                        JUAN A. GARCIA JR.
            PRIVATE FIRST CLASS (E-2), U.S. MARINE CORPS

                             NMCCA 201400108
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 16 October 2013.
Military Judge: LtCol L.J. Francis, USMC.
Convening Authority: Commanding General, Training Command,
Quantico, VA.
Staff Judge Advocate's Recommendation: LtCol M.A. Sayegh,
USMC.
For Appellant: Maj John Stephens, USMC.
For Appellee: LT James Belforti, JAGC, USN; LT Ann Dingle,
JAGC, USN.

                              14 May 2015

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                     OPINION OF THE COURT
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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 general court-martial consisting of officer and enlisted
members convicted the appellant, contrary to his pleas, of one
specification of attempt to commit sexual assault, two
specifications of abusive sexual contact, and one specification
of providing alcohol to a minor, in violation of Articles 80,
120, and 134, Uniform Code of Military Justice, 10 U.S.C. §§
880, 920, and 934. The members sentenced the appellant to
reduction to pay grade E-1, confinement for five months and
twenty-nine days, and to receive a bad-conduct discharge. The
convening authority approved the sentence as adjudged.

     The appellant raised four assignments of error (AOE): (1)
that trial counsel committed misconduct during his closing
statement by vouching for the credibility of witnesses, arguing
facts not in evidence, and calling upon the members to protect
“junior female Marines”; (2) that the Government failed to prove
beyond a reasonable doubt that the appellant’s mistake of fact
as to consent was not reasonable under the circumstances; (3)
that civilian law enforcement failed to provide the appellant
with rights warnings under Article 31(b), UCMJ; and (4) that the
military judge committed plain error when he allowed a hearsay
statement into evidence. 1 Additionally, this court specified the
issue of whether the military judge abused his discretion in
determining that the specifications involving abusive sexual
contact were not an unreasonable multiplication of charges with
the attempted sexual assault.

     After careful consideration of the record of trial and the
parties’ pleadings, we set aside the appellant’s conviction to
Specification 2 of Charge I and Additional Charge I and its sole
Specification and dismiss those offenses with prejudice. We
conclude that the remaining findings and the reassessed sentence
are correct in law and fact and that no error materially
prejudicial to the substantial rights of the appellant remains.
Arts. 59(a) and 66(c), UCMJ.

                                 Background

     The appellant and Lance Corporal (LCpl) AA were both
students stationed at Marine Corps Combat Center in Twentynine
Palms, CA. While there, LCpl AA traveled to Palm Springs, CA
for weekend liberty with her “best friend” and fellow student,
LCpl B. 2 The two female Marines were joined by three male
Marines, LCpls M and Aa, and the appellant. LCpl AA knew LCpl M
but had not previously met LCpl A or the appellant. Upon
arriving in Palm Springs, the group rented a single room with
two double beds at a local hotel. Once settled, the group
consumed alcohol, went shopping, and socialized at the pool.

1
  AOEs 3 and 4 were submitted pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982). We have considered these AOEs and find them to be without
merit. United States v. Clifton, 35 M.J. 79 (C.M.A. 1992).
2
    Record at 388.
                                      2
The first night, LCpls M and AA shared one of the beds and the
three remaining Marines shared the other.

     The following day, the group went to the hotel pool, where
LCpl AA sustained sunburn. After returning to the room, LCpl AA
lay on the floor between the two beds and began applying aloe to
her skin. The appellant offered to help her and she consented.
The appellant rubbed the aloe on her legs and claims the
touching turned sexual. LCpls B and A, both on one of the beds
at the time watching a movie on a computer screen, testified
that they observed the appellant performing oral sex on LCpl AA
and then engaging in sexual intercourse with her. These two
Marines also testified to seeing LCpl AA grab the appellant’s
arm and pull him into the bathroom, where the couple remained
for 10-15 minutes. While in the bathroom, the appellant alleges
that he and LCpl AA had vaginal intercourse until she asked him
if they could stop and “finish later.” 3 LCpl AA denied having
any sexual contact with the appellant that afternoon. LCpl M
was not in the room at the time of these events.

     Later that evening, LCpl M was again sharing a bed with
LCpl AA when the appellant came into the room and got into the
same bed. LCpl M then moved to sleep on the floor because he
believed that the appellant and LCpl AA were about to engage in
sexual activity. LCpl M testified that he next heard a
“disgruntled moan” and LCpl AA then got out of the bed and left
the room. 4

     When interviewed over the telephone regarding the sexual
activity, the appellant made the following statement to civilian
law enforcement:

       Q: Well, what happened in the middle of the night?
       A: . . . I remember we were sleeping next to each other and
       she said do you mind -- I remember her saying “[d]o you mind
       if we finish this later?” So I tried enticing her by, like,
       biting her, scratching her, trying to get her into it. And
       we did and she (inaudible).

       Q: She said what?
       A: She said no. Not no, but I thought she was playing
       around. I was like – she wasn’t really, like, trying to
       push me off. She was, like, Ooh. And she was like, okay.

3
    Prosecution Exhibit 3 at 5.
4
    Record at 318, 323.


                                  3
       But I kept trying to poke at it. . . . And then she woke up,
       she went outside. I went outside. And I said, like, are we
       going to do anything tonight? She said no. I was like,
       okay, and I went back.

       Q: So you never -- at night you never put your fingers
       inside of her vagina?
       A: No, I didn’t do anything like that.

       Q: You never put your penis even anywhere close to her in
       the middle of the night?
       A: There was no insertion, nothing near her (inaudible).
       It was just me biting her trying to entice her.

       . . . .

       Q: [W]as she asleep when you were, like biting on her neck
       and stuff?
       A: Yes, she was. 5

    Conversely, LCpl AA testified that after falling asleep, she
was partly awoken by the appellant’s “hand on top of [her]
shorts rubbing [her] vagina.” 6 LCpl AA pushed the appellant’s
hand away and fell back into a deep sleep. Next, LCpl AA
claimed she woke up and felt the appellant’s finger inside of
her vagina, to which she responded by saying “uh uh” and trying
to “manipulate his hand to inflict pain so maybe he would stop.” 7
LCpl AA claimed the appellant said “no matter how bad you fight
it, I’ll still get mine,” 8 Finally, LCpl AA testified that she
awoke to the appellant’s penis in her vagina and immediately got
out of bed and left the room. The appellant followed and,
according to LCpl AA, admitted that “At one point in time , I
felt like I was raping you.” 9 The two went back into the room
and went to sleep on different beds.

    The following morning, LCpls AA and M left the room,
whereupon LCpl AA told LCpl M that “when she woke up, he was


5
    PE 3 at 5, 7.
6
    Record at 218.
7
    Id. at 219.
8
    Id. at 220.
9
    Id. at 224.


                                  4
inside of her.” 10 After returning to the room, LCpl AA asked
LCpl B to go with her to a local store. LCpl B testified that,
while walking to the store, LCpl AA confided that she and the
appellant had sex, including in the bathroom, and that LCpl AA
was “uncomfortable and she regretted it.” 11

    The group then called for a shuttle van to return to their
base. When the van arrived, LCpl AA sat in the back seat with
the appellant. At one point, LCpl AA was asleep on the
appellant’s shoulder and at another she was asleep with her head
in his lap. Five days after the assault, LCpl AA made an
unrestricted report.

    The members found the appellant guilty of attempted sexual
assault, abusive sexual contact by kissing and biting AA’s neck
while she was asleep, abusive sexual contact by “touch[ing]
[AA’s] vaginal area,” and wrongfully providing alcohol to
minors. 12 Additional facts necessary to resolve the assigned
errors are included below.

                   Unreasonable Multiplication of Charges

     Although not raised by the parties, we begin with a
discussion on whether the sexual offenses of which the appellant
was convicted represent an unreasonable multiplication of
charges. The doctrine of unreasonable multiplication of charges
stems from “those features of military law that increase the
potential for overreaching in the exercise of prosecutorial
discretion.”   United States v. Quiroz, 55 M.J. 334, 337
(C.A.A.F. 2001). To determine whether there has been an
unreasonable multiplication of charges, we consider five
factors: (1) did the appellant object at trial; (2) are the
charges aimed at distinctly separate criminal acts; (3) do the
charges misrepresent or exaggerate the appellant's criminality;
(4) do the charges unreasonably increase the appellant's
punitive exposure; and (5) is there any evidence of
prosecutorial overreaching or abuse in the drafting of the
charges and specifications? United States v. Quiroz, 57 M.J.
583, 585 (N.M.Ct.Crim.App. 2002) (en banc), aff’d, 58 M.J. 183
(C.A.A.F. 2003) (summary disposition).


10
     Id. at 320.
11
     Id. at 382.
12
     Id. at 559.


                                     5
      In deciding issues of unreasonable multiplication of
charges, we also consider RULE FOR COURTS-MARTIAL 307(c)(4), MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2012 ed.), which states: “What is
substantially one transaction should not be made the basis for
an unreasonable multiplication of charges against one person.”
In considering all of these factors, we grant appropriate relief
if we find “the ‘piling on’ of charges so extreme or
unreasonable as to necessitate the invocation of our Article
66(c), UCMJ, authority [to affirm only such findings of guilty
and so much of the sentence as we find correct in law and fact
and determine, on the basis of the entire record, should be
approved].” Quiroz, 57 M.J. at 585 (citation and internal
quotation marks omitted); see also United States v. Foster, 40
M.J. 140, 144 n.4 (C.M.A. 1994). A military judge's decision to
deny relief for unreasonable multiplication of charges is
reviewed for an abuse of discretion. United States v. Pauling,
60 M.J. 91, 95 (C.A.A.F. 2004).

     After the members returned their findings, the parties
discussed the issue of unreasonable multiplication of charges.
The Government initially conceded that, for sentencing purposes,
“the attempt to penetrate is multiplicious [sic] with one of the
abusive sexual contacts.” 13 However, the military judge
disagreed, finding that the three acts were not a “continuous
course of conduct because each one is separated by some
intervening circumstance. Such as on the first occasion, she is
still asleep and doesn’t even recognize what is going on. On
the second occasion, she feels what’s going on and awakes and
reacts. On the third occasion, she awakes once again and
reacts. So that seems to me . . . three distinctly separate
criminal acts, which aren’t made multiplicious [sic] by the
other factors.” 14 Under the circumstances of this case, and
based upon the findings of the members, we disagree.

     We are unpersuaded that these three “acts” are sufficiently
distinct so as to justify three separate criminal convictions.
Instead, the evidence indicates that the appellant climbed into
bed with LCpl AA and, in the moments that followed, attempted to
engage in sexual intercourse with her. In the course of this
attempt, the appellant kissed LCpl AA’s neck, touched her
vaginal area with his hand, and touched LCpl AA’s vaginal area
with his penis. Shortly thereafter, LCpl AA got out of bed and
left the hotel room.


13
     Id. at 565.
14
     Id. at 567.
                                  6
     We conclude that the appellant’s conduct was “substantially
one transaction” and are not convinced that the reasonable path
is to break this single course of conduct down and permit the
appellant to stand convicted of three individual sexual
offenses. Doing so exaggerates the appellant's criminality and
unreasonably increased the appellant’s punitive exposure. See
United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012)
(noting that “one or more [Quiroz] factors may be sufficiently
compelling, without more, to warrant relief on unreasonable
multiplication of charges[.]”).

     Accordingly, we will invoke our authority under Article
66(c), UCMJ. Since the gravamen of the appellant’s misconduct
was attempted sexual assault, we will dismiss Specification 2
(kissing and biting AA’s neck) of Charge I and Additional Charge
I and its specification (touching her vaginal area).

                  Legal and Factual Sufficiency

     The appellant argues   that the Government failed to prove
beyond a reasonable doubt   that the appellant’s mistake of fact
as to consent was neither   honest nor reasonable. Therefore, the
appellant argues that the   evidence is factually and legally
insufficient to support a   conviction.

     In accordance with Article 66(c), UCMJ, this court must
examine each case for legal and factual sufficiency. United
States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The
test for legal sufficiency is whether, considering the evidence
in the light most favorable to the prosecution, a 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). To find the evidence factually sufficient, we,
ourselves, having weighed the evidence in the record of trial
and making allowances for not having personally observed the
witnesses, must be convinced of the appellant's guilt beyond a
reasonable doubt. United States v. Turner, 25 M.J. 324, 325
(C.M.A. 1987).

      The history of the mistake of fact has historically applied
to sexual assault cases. In 2006, Congress created a statutory
affirmative defense of “mistake of fact as to consent” for
certain sexual offenses, including sexual assault. See MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2012 ed.), App. 28, at A28-1, A28-5.
Shortly thereafter, R.C.M. 916 was amended accordingly to limit
the mistake of fact as to consent defense to those same
offenses. See R.C.M. 916(j)(3). However, after aspects of the

                                 7
statute’s burden shifting process were found to be
unconstitutional, Congress revised Article 120, removing from
the statute the language that discussed mistake of fact and
authorizing an accused to raise any defense available. See MCM,
App. 23, at A23-15. 15

     One of these defenses is the standard mistake of fact
defense, which affords the accused an affirmative defense if the
mistaken belief relates to an element of the offense. See
R.C.M. 916(j)(1). The latest Article 120(b)(2), which the
appellant was convicted of attempting to commit, criminalizes
the commission of a sexual act “upon another person when the
[accused] knows or reasonably should know that the other person
is asleep[.]” The military judge therefore instructed the
members that the elements of Article 120(b)(2) are twofold:
first, that the appellant penetrated LCpl AA’s vulva with his
penis; and second, that he did so when he knew or reasonably
should have known that LCpl AA was asleep. 16 In that consent
does not vitiate any aspect of either of these two elements,
several commentators have opined that mistake of fact as to
consent would be inapplicable to this charge under current law. 17

     However, it is not necessary for us to resolve that
question because, even if we were to assume, arguendo, that
mistake of fact could apply to an offense under Article
120(b)(2), we are satisfied beyond a reasonable doubt that any
mistake was unreasonable.



15
   R.C.M. 916(j)(3) has not been modified to reflect the change to Article
120, UCMJ, offenses.
16
  The military judge instructed the members on mistake of fact as to consent
as it relates to Specification 1 of Charge I and the lesser included offense
of attempt.
17
  See Jim Clark, Analysis of Crimes and Defenses 2012 UCMJ Article 120,
effective 28 June 2012, 2012 Emerging Issues (LEXIS) 6423 (Jun 25, 2012)
(opining that the 2012 Article 120 removed mistake of fact as to consent as a
defense to most charges and that mistake of fact only applies to elements of
the crime); Major Mark Sameit, USMC, When a Convicted Rape is Not Really a
Rape: The Past, Present, and Future Ability of Article 120 Convictions to
Withstand Legal and Factual Sufficiency Reviews, 216 MIL. L. REV. 77, 117
(2013) (opining that the Government's burden to prove the elements of this
offense eliminates the affirmative defense of mistake of fact); Zachary D.
Spilman, Consent and Mistake of Fact as to Consent: Defenses to Adult Sexual
Offenses under the Uniform Code of Military Justice, 2014 Emerging Issues
(LEXIS) 7277 (Nov. 26, 2014) (noting that since Article 120(g)(8)(B) states
that “a sleeping . . . person cannot consent[,]” then “an accused cannot
claim that the other person was both [sleeping] and consenting.”).
                                      8
     The appellant claims that his mistake of fact stems from
his consensual sexual encounter with LCpl AA earlier in the
bathroom. Specifically, since LCpl AA asked the appellant if
they could “stop and finish later,” he believed that she
consented to his attempts to entice her later that evening while
she was sleeping. However, the appellant’s argument ignores his
admission to law enforcement that, once he began his efforts to
entice LCpl AA, she “said no . . . but I kept trying to poke at
it.” “[A] voluntary confession of guilt is among the most
effectual proofs in the law, and constitutes the strongest
evidence against the party making it that can be given of the
facts stated in such confession.” United States v. Ellis, 57
M.J. 375, 381 (C.A.A.F. 2002) (citation and internal quotation
marks omitted). This admission alone, wherein the appellant
admits that LCpl AA woke up and manifested her lack of consent
to his actions, is sufficient to convince us that any mistaken
belief on his part that she consented to his actions was
unreasonable. Therefore, we are convinced of the appellant’s
guilt beyond a reasonable doubt and find his conviction to be
factually and legally sufficient.

                         Prosecutorial Misconduct

     The appellant also contends that the trial counsel
committed misconduct by engaging in improper argument on
findings. Since defense counsel did not object to the argument
at trial, we review the trial counsel’s arguments for plain
error. United States v. Fletcher, 62 M.J. 175, 179 (C.A.A.F.
2005).

     The appellant avers that during closing arguments, the
trial counsel referred to the defense theory of the case as
“asinine,” vouched for the credibility of LCpl AA and Government
witnesses, argued facts not in evidence, and implicitly
commented upon the appellant’s failure to take the stand.
Finally, in his closing comments to the members during his
rebuttal argument, the trial counsel urged the members to find
the appellant guilty because “the accused needs to be held
accountable for what he did. He absolutely does. And when you
think about our junior female Marines in the Marine Corps, a
situation like this, is exactly what (inaudible).” 18

     “An accused is supposed to be tried and sentenced as an
individual on the basis of the offense(s) charged and the
legally and logically relevant evidence presented.” United

18
     Record at 543-44.
                                    9
States v. Schroder, 65 M.J. 49, 58 (C.A.A.F. 2007).
Prosecutorial misconduct thwarts that principle, and “it is
error for trial counsel to make arguments that unduly . . .
inflame the passions or prejudices of the court members.” Id.
at 58 (citations and internal quotation marks omitted). The
trial counsel is also prohibited from injecting into argument
irrelevant matters, such as personal opinions and facts not in
evidence. Id. (citing Fletcher, 62 M.J at 180); R.C.M. 919(b)
Discussion.

     Assuming that the trial counsel’s comments constituted
error, we will assess that error for prejudice. In doing so,
“[w]e look at the cumulative impact of any prosecutorial
misconduct on the accused’s substantial rights and the fairness
and integrity of his trial.’” United States v. Erickson, 65
M.J. 221, 224 (C.A.A.F. 2007) (citation and internal quotation
marks omitted). In Fletcher, the Court of Appeals for the Armed
Forces explained that the “best approach” to determining
prejudice arising from prosecutorial misconduct involves
balancing three factors: “(1) the severity of the misconduct,
(2) the measures adopted to cure the misconduct, and (3) the
weight of the evidence supporting the conviction.” 62 M.J. at
184. Prosecutorial misconduct “will require reversal when the
trial counsel's comments, taken as a whole, were so damaging
that we cannot be confident that the members convicted the
appellant on the basis of the evidence alone.” Id.

     We are troubled most by the trial counsel’s attempt to
invoke within the members a duty to protect “junior female
Marines” by finding the appellant guilty. This was plain error
that the military judge had a sua sponte duty to correct.
However, in this case, the third Fletcher factor weighs so
heavily in favor of the Government that we are confident the
appellant was convicted on the basis of the evidence alone.
Specifically, we note that the appellant’s attempted sexual
assault conviction was based not upon what LCpl AA alleged
happened (penetration), but the conduct to which the appellant
confessed (“I kept trying to poke at it”). Thus, we are
satisfied that the appellant's confession renders harmless any
error by the trial counsel or any failure on the military
judge’s part to take measures to correct those errors.

                      Sentence Reassessment

     Reassessing the sentence by applying the principles of
United States v. Sales, 22 M.J. 305 (C.M.A. 1986) and the
factors set forth in United States v. Winckelmann, 73 M.J. 11,

                               10
15-16 (C.A.A.F. 2013), we are confident the members would have
adjudged the same sentence.

     First, we note that our action reduces the maximum
confinement the appellant faced from 34 years and six months to
20 years and six months and a dishonorable discharge. However,
the members sentenced the appellant to only five months and 29
days and a bad-conduct discharge. We also note the gravamen of
the offense remains the same: the attempted sexual assault.
Finally, this court reviews the records of a substantial number
of courts-martial involving sexual assault of the nature alleged
in this case, and we have extensive experience with the level of
sentences imposed for such offenses under various circumstances.
Upon reassessment, we conclude that the sentence as adjudged and
approved is appropriate.

                           Conclusion

     The findings as to Specification 2 of Charge I and
Additional Charge I and its sole specification are set aside and
dismissed with prejudice. The finding as to Specification 1 of
Charge I and Additional Charge II and its specification, as well
as the sentence as reassessed, are affirmed.

                                For the Court




                                R.H. TROIDL
                                Clerk of Court




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