          U NITED S TATES N AVY –M ARINE C ORPS
              C OURT OF C RIMINAL A PPEALS
                          _________________________

                              No. 201600122
                          _________________________

                  UNITED STATES OF AMERICA
                                  Appellee
                                      v.
                      BENJAMIN A. BULLARD
                    Corporal (E-4), U.S. Marine Corps
                                Appellant
                        _________________________
 Appeal from the United States Navy-Marine Corps Trial Judiciary

         Military Judge: Major Michael D. Libretto, USMC.
      For Appellant: Captain Bree A. Ermentrout, JAGC, USN.
      For Appellee: Commander Jacob R. Walker, JAGC, USN;
              Lieutenant Jetti L. Gibson, JAGC, USN.
                      _________________________

                       Decided 22 September 2016
                        _________________________

   Before MARKS, F ULTON , and G LASER -A LLEN , Appellate Military
                               Judges
                      _________________________

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 military judge sitting as a special court-martial convicted the appellant,
pursuant to his pleas, of two specifications of battery upon a child under the
age of 16 in violation of Article 128, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 928. The convening authority approved the sentence of
60 days’ confinement, reduction to pay grade E-1, and a bad-conduct
discharge but, pursuant to a pretrial agreement, suspended all confinement
in excess of 30 days.
                      United States v. Bullard, No. 201600122


    In his sole assignment of error, the appellant asserts the military judge
improperly admitted uncharged misconduct per RULE FOR COURTS-MARTIAL
(R.C.M.) 1001(b)(4), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012
ed.) in the Government’s sentencing case. We disagree.
                                   I. BACKGROUND
    Between 20 and 27 June 2015, the appellant and his wife babysat their
five-year-old nephew. in their home aboard Marine Corps Air Station Cherry
Point, North Carolina. During this time, the appellant struck his nephew
using his hands and a belt on multiple occasions. Though he knew his
nephew was in pain, he continued to spank the child repeatedly and
unlawfully grabbed his arm “to impose extreme pain, not to discipline him or
protect him in any way.”1 The appellant pled guilty to these two offenses and
admitted that the spanking caused bruising on his nephew’s lower back,
buttocks, and legs. On 26 June 2015, the appellant’s on-base neighbors,
Sergeant (Sgt) and Mrs. B., heard a child screaming and went across the
street to the appellant’s home. While outside the house, Mrs. B. looked in the
window and saw “a child running to the door, and then a man run across the
room, pick the child up, and throw him against the door.”2 Sgt B. distinctly
heard the child hit the door and start crying. Both Sgt and Mrs. B. signed
affidavits describing what they saw and heard on this (uncharged) occasion.
                                     II. ANALYSIS
    During sentencing, the Government introduced Sgt and Mrs. Bs’
affidavits over defense objection. The appellant argues that the military
judge abused his discretion by admitting this sentencing evidence of the
appellant throwing his nephew against the wall under R.C.M. 1001(b)(4)
because the evidence was not directly related to or resulting from the two
offenses to which appellant pled guilty.
    We review a military judge’s decision to admit or exclude evidence for an
abuse of discretion. United States v. McDonald, 59 M.J. 426, 430 (C.A.A.F.
2004) (citing United States v. Tanksley, 54 M.J. 169, 175 (C.A.A.F. 2000)).
R.C.M. 1001(b)(4) provides that: “[t]he trial counsel may present evidence as
to any aggravating circumstances directly relating to or resulting from the
offenses of which the accused has been found guilty.” Additionally, “when
uncharged misconduct is part of a continuous course of conduct involving
similar crimes and the same victims, it is encompassed within the language
‘directly relating to or resulting from the offenses of which the accused has
been found guilty’ under R.C.M. 1001(b)(4).” United States v. Nourse, 55 M.J.


   1   Record at 20-25; see also Prosecution Exhibit (PE) 10.
   2   PE 1 at 1.

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                       United States v. Bullard, No. 201600122


229, 232, (C.A.A.F. 2001). In Nourse, evidence of uncharged larcenies
involving the appellant from the same victim in the same place were
admissible because they were directly related to the charged offenses as part
of a continuing scheme to steal from the Orleans Parish Criminal Sheriff’s
Office. Id. at 230-32; see also United States v. Ross, 34 M.J. 183, 187 (C.M.A.
1992) (finding evidence that the appellant had altered test scores on
occasions other than those for which he was convicted was admissible to show
the “continuous nature of the charged conduct and its full impact on the
military community”); United States v. Mullens, 29 M.J. 398, 400 (C.M.A.
1990) (holding that evidence of uncharged indecent liberties the appellant
took with his children years prior to the charged misconduct at a prior duty
station was admissible under R.C.M. 1001(b)(4) at sentencing for convictions
of sodomy and indecent acts with his children).
    Sentencing evidence is also subject to the MILITARY RULE OF EVIDENCE
403, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) balancing
test. United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000) (citing United
States v. Rust, 41 M.J. 472, 478 (C.A.A.F. 1995)). If the military judge
conducts a proper balancing test under MIL. R. EVID. 403, the “ruling will not
be overturned unless there is a ‘clear abuse of discretion.’” Id. (quoting United
States v. Ruppel, 49 M.J. 247, 250 (C.A.A.F. 1998)). Here, the military judge
conducted a MIL. R. EVID. 403 balancing test on the record and limited the
application of the testimony. He admitted the affidavits, finding they
provided context to the environment in which the offenses occurred, while
noting that “the court is mindful that it is to sentence the accused based only
upon the offenses to which he has been found guilty.”3
   The uncharged throwing incident involved the same victim, occurred the
same week, and was similar to the physically abusive conduct in the two pled
battery offenses. The throwing incident was indicative of the continuous
conduct of the appellant’s actions from 20-27 June 2015 and demonstrated
the full impact of his actions on the Cherry Point military community. Like
the events detailed in Nourse, Mullens, and Ross; here the uncharged
misconduct of throwing his nephew against the wall was directly related to
the arm-grabbing and belt discipline that the appellant had inflicted upon his
nephew while the child was in appellant’s care earlier that week.
    Accordingly, we find the military judge did not abuse his discretion in
admitting the aggravation evidence in sentencing. We conclude that the
findings and sentence are correct in law and fact and that no error materially
prejudicial to the substantial rights of appellant was committed. Arts. 59(a)
and 66(c), UCMJ.


   3   Record at 46.

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              United States v. Bullard, No. 201600122




                          III. CONCLUSION
The findings and the sentence are affirmed.
                           For the Court



                           R.H. TROIDL
                           Clerk of Court




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