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

                                Before
           K.J. BRUBAKER, M.C. HOLIFIELD, J.P. ELLINGTON
                       Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                       WILLIAM J. BEAUMONT
                   PRIVATE (E-1), U.S. MARINE CORPS

                           NMCCA 201500237
                       SPECIAL COURET-MARTIAL

Sentence Adjudged: 18 March 2015.
Military Judge: LtCol E.H. Robinson, Jr., USMC.
Convening Authority: Commanding Officer, Marine Corps
Communications-Electronics School, Training Command,
Twentynine Palms, CA.
Staff Judge Advocate's Recommendation: LtCol M.E. Sayegh,
USMC.
For Appellant: LtCol Richard A. Viczorek, USMCR.
For Appellee: CDR James E. Carsten, JAGC, USN.

                            12 January 2016

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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.

ELLINGTON, Judge:

     The appellant was convicted, in accordance with his pleas,
by a military judge sitting as a special court-martial of one
specification of violating a lawful general regulation
(consumption of alcohol by a person under the age of twenty-one)
and three specifications of assault consummated by battery, in
violation of Articles 92 and 128, Uniform Code of Military
Justice, 10 U.S.C. §§ 892 and 928. The military judge sentenced
the appellant to a reprimand, forfeiture of $1000.00 pay per
month for four months, restriction for 120 days, and a bad-
conduct discharge. The convening authority (CA) approved the
sentence as adjudged.

    The appellant raises three assignments of error (AOEs):

    (1)   The military judge erroneously excluded defense
          mitigation evidence by sustaining a series of general
          objections by the Government and refusing to relax the
          rules of evidence during the defense sentencing case.
    (2)   The military judge erred by adjudging 120 days of
          restriction.
    (3)   The appellant’s sentence was inappropriately severe.
     After carefully considering the record of trial and the
submissions of the parties, we find merit in the appellant’s
first and second AOEs and grant partial relief in our decretal
paragraph. We find AOE three to be without merit. Also,
although not raised by the parties, we find error in documenting
the letter of reprimand and thus will not affirm that part of
the sentence.
                       Factual Background

     On 31 May 2014, the appellant and Lance Corporal (LCpl)
A.R.R. were socializing at an on-base bowling alley. After
leaving the bowling alley, the pair decided to go to a fast food
restaurant for a meal. While walking to the establishment, the
appellant became aggressive and made numerous attempts to kiss
LCpl A.R.R. In one attempt, he grabbed her wrist and pulled her
to the ground. He attempted to kiss her while simultaneously
impeding her ability to stand. Eventually, LCpl A.R.R. was able
to break free of the appellant’s grasp. In another attempt, the
appellant grabbed LCpl A.R.R., pulled her hair and attempted to
prevent LCpl A.R.R. from breaking free of his grasp. Once again
LCpl A.R.R. was able to distance herself from the appellant. In
his final attempt to kiss LCpl A.R.R., the appellant was again
rebuffed and, in the ensuing struggle, the appellant struck LCpl
A.R.R. in the face.

     During sentencing, the military judge did not allow a
defense character witness to answer certain questions.
Initially, the witness testified that he had known the appellant
for more than six months and had supervised him as his squad
leader. The witness was then asked how the appellant performed

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at the jobs he was given. After responding that the appellant’s
job performance was excellent, the trial counsel objected.1 The
military judge sustained the objection. Trial defense counsel
moved to relax the rules. The trial counsel argued that the
rules could not be relaxed as “[i]mproper character evidence
can’t be relaxed, sir.”2 The military judge sustained the
objection. Trial defense counsel then asked two more questions
regarding the appellant’s military performance to which the
trial counsel again made objections which were sustained by the
military judge:

        DC:  How did Private Beaumont compare to other Marines
             that you supervised?
        WIT: Excellent, sir. Every time I left, he was –

        TC:   Objection.
        MJ:   Sustained.

        DC:  During the time you observed Private Beaumont,
             did you ever see him drop his pack?
        WIT: No, sir.

        TC:   Objection.
        MJ:   Sustained.3

     Trial defense counsel then asked the witness if he was
aware of the substance of the charges the appellant had pleaded
guilty to. After receiving affirmative responses, trial defense
counsel attempted to inquire as to why the witness still
supported the appellant.

        DC:   Why did you agree to testify as a sentencing
              witness?

        TC:   Objection.
        MJ:   Sustained.


1
  The appellant cites United States v. McMillion, 16 M.J. 658 (A.C.M.R. 1983)
in his brief to support the position that if a trial counsel does not state
the reason for an objection, the military judge should routinely require
counsel to state the basis prior to any ruling. But here, the trial counsel
initially stated a basis for his objection, albeit somewhat unartfully. The
record indicates that the military judge viewed the trial counsel’s objection
as an ongoing objection for purported improper mitigation evidence.
2
    Record at 92.
3
    Id. at 92-93.
                                      3
        DC: Do you support any of those activities?
        WIT: No, sir.

        DC:      Why do you still support Private Beaumont?

        TC:      Objection.
        MJ:      Sustained.4

     After the military judge sustained these objections, trial
defense counsel again attempted to relax the rules of evidence.

        DC:      Have you had the opportunity to have a
                 conversation with Private Beaumont about his
                 feelings towards alcohol?

        TC:      Objection.
        MJ:      Sustained.

        DC:      Sir, at this time, defense asks to relax the
                 rules as to hearsay?
        MJ:      As I look at the rule, it says that the military
                 judge, with respect to matters in extenuation and
                 mitigation, may relax the rules of evidence.
                 This   includes admitting letters, affidavits,
                 certificates, and civil offices – certificates of
                 military and civil offices and other writings of
                 similar authenticity and reliability. I don’t see
                 anything that says that we can relax the rules as
                 it relates to testimony of witnesses. You’ve got
                 something to support that this permits the Court
                 – this rule permits the Court to relax the rules
                 regarding witness testimony?

        DC:      I don’t, sir.
        MJ:      The analysis doesn’t really say anything about it
                 that I’m finding.   And so, that objection by the
                 government remains sustained. And the – yeah, the
                 objection is sustained.5

     The witness then testified that his opinion, as to the
appellant’s rehabilitative potential, was that “he’s perfectly



4
    Id. at 93.
5
    Id. at 94.


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fine now” and that his military character was “outstanding and
loyal.”6

     The appellant then called his noncommissioned officer in
charge as a witness. After laying an appropriate foundation,
the witness ultimately stated that he believed the appellant had
good military character. Turning to the appellant’s
rehabilitative potential, the following colloquy occurred:

          DC:  Have you had the opportunity to form an opinion
               as to Private Beaumont’s potential for
               rehabilitation?
          WIT: Yes, sir, I have.

          DC: And what’s that opinion?
          WIT: I believe that he is a good Marine and with the
               proper guidance he could be –

          TC:    Objection.

          DC:  [Witness], there’s going to be a sustained
               objection there. It’s just whether or not you
               believe he has rehabilitative potential.
          WIT: Yes, sir.7

                                 Analysis

Exclusion of Defense Mitigation Evidence

     We review a military judge's evidentiary ruling for abuse
of discretion. United States v. Owens, 51 M.J. 204, 209
(C.A.A.F. 1999). The military judge’s findings of fact receive
deference and will only be overturned if they are clearly
erroneous; we review conclusions of law de novo. Id.

      RULE FOR COURTS-MARTIAL 1001(c)(3), MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2012 ed.), provides that the military judge may, with
respect to matters in extenuation or mitigation or both, relax
the rules of evidence. While the rule does specifically discuss
documentary evidence, this authority to relax the rules is not
limited to documentary evidence. United States v. Roth, 52 M.J.
187, 190 (C.A.A.F. 1999). The Court of Appeals for the Armed
Forces (CAAF) has stated “that the intent of the sentencing
rules is to favor the admission of relevant evidence in the
6
    Id.
7
    Id. at 98.
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sentencing proceeding, regardless of the form of the evidence.”
Id. But relaxation of evidentiary rules “‘goes more to the
question of whether the evidence is authentic and reliable’ and
‘otherwise inadmissible evidence still is not admitted at
sentencing.’” United States v. Saferite, 59 M.J. 270, 273
(C.A.A.F. 2004) (quoting United States v. Boone, 49 M.J. 187,
198 n.14 (C.A.A.F. 1998)).

     Matters in mitigation of an offense are introduced to
lessen the punishment to be adjudged by the court-martial, or to
furnish grounds for a recommendation of clemency. R.C.M.
1001(c)(1)(B). Mitigation evidence includes “evidence of the
reputation or record of the accused in the service for
efficiency, fidelity, subordination, temperance, courage, or any
other trait that is desirable in a servicemember.” Id.
Positive character evidence is a relevant factor in evaluating
an appropriate sentence. United States v. Tangpuz, 5 M.J. 426,
429 (C.M.A. 1978). The CAAF has consistently recognized that an
accused has a broad right to present mitigation evidence.
United States v. Perry, 48 M.J. 197, 199 (C.A.A.F. 1998); United
States v. Becker, 46 M.J. 141, 143 (C.A.A.F. 1997).

     The Government concedes that the military judge applied an
erroneous view of the law that relaxation of the rules of
evidence in sentencing only pertains to documentary evidence and
erred by excluding relevant mitigation evidence. We turn then
to whether the appellant was prejudiced by this error. To
evaluate prejudice when evidence was erroneously excluded during
the sentencing portion of a court-martial, we ask “if the error
substantially influenced the adjudged sentence.” United States
v. Griggs, 61 M.J. 402, 410 (C.A.A.F. 2005) (citations omitted).

     In measuring the influence of the error, we use the CAAF's
logic from Saferite, 59 M.J. at 274-75; see also United States
v. Griggs, 61 M.J. 402, 411 (C.A.A.F. 2005)(Crawford, S.J.,
concurring in part and dissenting in part). In Saferite, the
CAAF evaluated the effect of an evidentiary error in the
sentencing case by assessing: the probative value and weight of
the evidence; the risk of unfair prejudice resulting from the
ruling; the evidence in light of other sentencing
considerations; and the sentence actually imposed compared to
the maximum and to the sentence the trial counsel argued for.
Id.

     We recognize that a service member’s job performance,
community support and good conduct may be probative areas in
sentencing. Here, however, even when somewhat limited by the

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military judge’s rulings, the appellant solicited highly
favorable conclusions from each of his live witnesses. In
addition, the appellant submitted two exhibits that stated the
authors’ positive view about rehabilitative potential as well as
overall character.

     The appellant faced a maximum sentence of confinement for
12 months, forfeiture of two-thirds’ pay for 12 months,
reduction to the lowest pay grade (E-1), and a bad-conduct
discharge. The trial counsel argued for five months of
confinement, forfeiture during that period, and a bad-conduct
discharge. The appellant received a reprimand, partial
forfeiture, restriction, and a bad-conduct discharge. The
sentence the appellant received was thus substantially less than
the maximum or what the trial counsel sought.

     We find that the admission of the excluded testimony, to
the extent that it was error to exclude it, would not have led
the military judge to award a more lenient sentence. As the
appellant’s sentence was not substantially influenced by the
exclusion, we find no prejudice.

Legality of the Sentence

     A CA may not approve an illegal sentence. United States v.
Nerad, 69 M.J. 138, 145 (C.A.A.F. 2010). In this case the
military judge adjudged, and the CA approved, 120 days’
restriction.

     “Restriction may be adjudged for no more than 2 months for
each month of authorized confinement and in no case for more
than 2 months.” R.C.M. 1003(b)(5). The military judge’s
sentence exceeded this limitation. This, as the Government
concedes, is plain error. Accordingly, we will affirm only two
months of restriction.8

Sentence Severity

     The appellant argues that his sentence was inappropriately
severe given the support of the Marines who supervised the
appellant, the rehabilitative potential of the appellant, and
the appellant’s new understanding of his alcohol problem. We
disagree.


8
  Documents filed with the Court indicate that the appellant did not serve any
days of restriction as he was placed on appellate leave before the CA ordered
the restriction executed. We thus find any further relief unnecessary.
                                      7
     We review the appropriateness of the sentence de novo.
United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). Under
Article 66(c), UCMJ, this court “may affirm only such findings
of guilty and the sentence or such part or amount of the
sentence, as it finds correct in law and fact and determines, on
the basis of the entire record, should be approved.” “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). That analysis requires “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)
(citation and internal quotation marks omitted). Factors
include “the circumstances surrounding the offense, [the
accused's] acceptance or lack of acceptance of responsibility
for his offense, and his prior record.” United States v.
Aurich, 31 M.J. 95, 97 (C.M.A. 1990). Determining sentence
appropriateness does not include granting clemency. Healy, 26
M.J. at 395.

     The appellant violated a lawful general order and assaulted
a fellow Marine without provocation. Evidence regarding the
appellant's misuse of alcohol——which included three nonjudicial
punishments, two of which involved underage drinking of alcohol—
—was offered during presentencing in aggravation as well as in
mitigation and extenuation. The appellant presented evidence of
his efforts to tame his abuse of alcohol. Weighing the gravity
of the appellant’s offenses against his rehabilitative
potential, background, potential sobriety, and the support of
his fellow Marines9, we decline to find his sentence
inappropriate.

Letter of Reprimand

     Although the CA’s action purported to incorporate a copy of
the letter of reprimand, no copy was present. Responding to our
order to produce a copy, the Government’s inquiries revealed no
record of a letter of reprimand ever actually being issued.
Accordingly, we will not affirm that part of the sentence
extending to a letter of reprimand.




9
  This list is not exclusive as the court considered all relevant sentencing
factors outlined by the trial counsel as well as trial defense counsel.
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                           Conclusion

     The findings and only so much of the sentence as includes a
bad-conduct discharge, forfeiture of $1000 pay per month for
four months, and restriction for two months is affirmed.

    Chief Judge BRUBAKER and Judge HOLIFIELD concur.

                             For the Court




                             R.H. TROIDL
                             Clerk of Court




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