UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

J.A. FISCHER, B.T. PALMER, T.H. CAMPBELL

Appellate Military Judges

UNITED STATES OF AMERICA

v.

RENATO M. SERRANO

FIRE CONTROLMAN FIRST CLASS (E-6), U.S. NAVY

NMCCA 201500057

GENERAL COURT-MARTIAL

Sentence Adjudged: 9 September 2014.

Military Judge: CDR Michael J. Luken, JAGC, USN.

Convening Authority: Commander, Navy Region Mid-Atlantic, 

Norfolk, VA.

Staff Judge Advocate's Recommendation: CDR S.J. Gawronski,

JAGC, USN.

For Appellant: C. Ed Massey, Esq.; Capt Michael Magee, 

USMC.

For Appellee: Maj Tracey Holtshirley, USMC; LT Jamie 

Belforti, JAGC, USN.

29 December 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 military judge (MJ) sitting as a general court-martial 

convicted the appellant, consistent with his pleas, of sexually 

assaulting a child between 12 and 16 years old, on divers 

occasions, in violation of Article 120, Uniform Code of Military 
2

Justice, 10 U.S.C. § 920.

1 The convening authority (CA) approved 

the adjudged sentence of 15 years’ confinement and a 

dishonorable discharge—-and suspended confinement beyond 12 

years in accordance with a pretrial agreement (PTA).2 

The appellant argues that the MJ erred by allowing the 

testimony of two MILITARY RULE OF EVIDENCE 414, MANUAL FOR COURTS-MARTIAL,

UNITED STATES (2012 ed.) sentencing witnesses, and that the 

approved sentence is unjustifiably severe. This court also 

identified two post-trial issues that the parties did not 

address. After carefully considering the record of trial and 

the parties’ submissions, we conclude the findings and sentence 

are correct in law and fact, and find no error materially 

prejudicial to the appellant’s substantial rights. Arts. 59(a) 

and 66(c), UCMJ. 

Background

In September 2008, the victim in the charged offense, SH, 

moved from New York to Virginia to live with her maternal aunt 

and uncle by marriage. SH was 15 years old. Her uncle’s 

younger brother, the appellant, also lived in her new home. The 

appellant first met SH when she was three, and saw her on some 

occasions afterwards. SH referred to the appellant as “Uncle 

Reny.” 3 He was 35. Although his wife was in the Philippines, 

the appellant had married earlier that year. 

Within weeks of SH’s arrival, the appellant began touching 

her neck and back in a sexual manner. He progressed to touching 

her thighs and to digital vaginal penetration. By November 

2008, he asked SH to sneak to his bedroom at night. There they 

each performed oral sex and had intercourse at least three times 

before SH moved to Pennsylvania in January 2009. 

In October 2011, SH told her aunt what the appellant had 

done to her. The aunt angrily confronted the deployed appellant 

via email. He did not deny the allegations, but claimed SH had

seduced him. SH later reported the abuse to law enforcement. 

 

1 The appellant pled not guilty to three other Article 120 specifications and 

an Article 125 charge and specification involving the same child victim, SH. 

Those offenses were withdrawn and dismissed pursuant to a pretrial agreement.

2 As clemency, the CA also deferred automatic forfeitures after trial and then 

waived them for six months from the date of his action on the case for the 

benefit of the appellant’s dependent wife and daughter. 

3 Prosecution Exhibit 1 at 1. 
3

Investigators got sworn, written statements from two of the 

appellant’s biological nieces, CD and CW, who described being 

sexually abused by him between 1986 and 2002. The appellant, 

their mother’s brother, is seven and 11 years older than them, 

respectively. Upon moving to the United States as a 14-yearold, he lived with them until either one went to college and 

then he left their home for military service. The reported 

abuse involved kissing, fondling, and digitally penetrating one 

niece before she was 10 until she was 17. The same acts began 

with the younger niece by the time she was 12, but progressed to 

nightly oral or vaginal intercourse in the appellant’s bedroom 

for about five years, until she was 18. 

After the appellant enlisted, CD and CW’s mother and some 

extended family members became vaguely aware he had done 

something to CD and CW. Their mother refused to let the 

appellant live in her home afterwards when he was stationed in 

Virginia in 2008--so he lived with his brother’s family instead. 

CD and CW’s statements were exhibits at the appellant’s Article 

32 hearing.

In limine, the Government sought to admit CD and CW’s 

testimony for the merits and sentencing under MIL. R. EVID. 414.4 

The civilian trial defense counsel (CTDC) argued the prior acts 

lacked relevance and were overly prejudicial.5 After receiving 

arguments and reviewing CD and CW’s written statements, the MJ 

granted the Government’s motion6 and issued a written ruling.7

 

Having withdrawn from an initial PTA8 once the Government 

filed the MIL. R. EVID. 414 motion, the appellant negotiated a 

second PTA after the MJ’s ruling. Like the first PTA, it 

included the following “Specially Negotiated” provision:

I agree to waive all motions except those that are 

otherwise non-waivable pursuant to [RULE FOR COURTSMARTIAL] 705(c)(1)(B) [, MANUAL FOR COURTS-MARTIAL, UNITED 

STATES (2012 ed.)]. I have not been compelled to waive 

 

4 Appellate Exhibit IX.

5 AE XIX at 3-5. 

6 Record at 76-78; 85.

7 AE XXXII.

8 AEs VII and VIII. AE VIII was sealed without the MJ’s awareness of the 

sentence limitations within the agreement—-a 10 year confinement cap.
4

my right to due process, the right to challenge the 

jurisdiction of the court-martial, the right to a 

speedy trial, the right to raise the issue of unlawful 

command influence, or any other motion that cannot be 

waived. I have no motions to bring and I am not aware 

of any motion that was waived pursuant to this 

provision.9 

Reviewing that provision with the appellant, the MJ asked 

about previously litigated motions. The CTDC responded:

I believe the law is quite clear that...once the 

accused enters a guilty plea, if the court accepts it, 

all prior motions that have been submitted to the 

court and decided by a court, are waived for appellate 

review purposes. The accused fully understands that. 

I’ve discussed that with him fully.10 

The MJ then directly addressed the appellant:

So, [appellant], you now understand what all that 

lawyer talk just was about? Let me explain it to you 

real quick. So, what happens, we had some motions 

that your counsel filed previously. That’s when we 

were in the court before. I’d listen to argument, and 

then I made my rulings. What’s happening now is, 

based on the terms of this agreement, the specific 

term is, you’re now saying—-so you get the benefit of 

the deal that the government is offering you. You’re 

agreeing to waive all those motions and say, 

basically, “Those aren’t important any more for 

appellate review.” Do you understand that?11

The appellant replied, “Yes, sir.”12 

 

The specially negotiated PTA provisions also included an 

agreement, “not to object to any victim impact statements being 

offered in sentencing on the basis of foundation, hearsay, 

authenticity, best evidence, or the Confrontation Clause of the 

 

9 AE XXXIV at 5-6. 

 

10 Record at 132.

11 Id. at 132-33. 

12 Id. at 133. 
5

Sixth Amendment.”13 When CD was called as the first sentencing 

witness, the appellant argued her expected testimony was 

irrelevant, improper R.C.M. 1001 evidence, and inadmissible 

under MIL. R. EVID. 403. In overruling the objection, the MJ 

explained, “I’m going to adopt my ruling as to M.R.E. 414. My 

analysis is the same, including my 403 analysis.”14 CD and CW 

then testified about the appellant’s sexual abuse, consistent 

with their written, sworn statements. 

Discussion

Evidence of Similar Crimes

The Government argues the appellant waived appeal of the 

MIL. R. EVID. 414 evidence’s admissibility by unconditionally 

pleading guilty, or that he subsequently waived appeal by not 

renewing a MIL. R. EVID. 414 objection at sentencing.15 We assume, 

without deciding, that evidence in aggravation goes beyond the 

factual issue of guilt for purposes of waiver based on a guilty 

plea.

16 The appellant did not expressly waive this assignment of 

error, since the PTA did not prevent all objections to CD and 

CW’s testimony, and the defense raised timely objections at 

sentencing. While failure to object on specific grounds may 

result in waiver of potentially valid issues for appeal under 

MIL. R. EVID. 103(a)(1), the MIL. R. EVID. 403 objection here 

necessarily implicated MIL. R. EVID. 414--as evidenced by the MJ 

adopting his earlier MIL. R. EVID. 414 analysis in overruling the 

objection. See United States v. Fontenot, 29 M.J. 244, 246 

(C.M.A. 1989) (trial defense counsel did not waive “all other 

possible objections to admissibility” by citing only MIL. R. EVID.

403 when “all parties at trial fully appreciated the substance 

of those complaints and . . . the military judge had full 

opportunity to consider them --which, after all, is what the 

waiver rule is designed to provide in the first place.”). 

Therefore, we address, but find unpersuasive, the appellant’s 

MIL. R. EVID. 414 challenge. 

We review the admissibility of sentencing evidence for an 

abuse of discretion, United States v. Ediger, 68 M.J. 243, 248 

 

13 AE XXXIV at 6.

14 Record at 146-47.

15 Government Brief of 23 Oct 2015 at 13–16.

16 But see United States v. Bradley, 68 M.J. 279, 282 (C.A.A.F. 2010) (holding 

an “unconditional guilty plea waived both [a] motion to dismiss and [an]

objection to [the trial counsel’s] presence on the prosecution team.”).
6

(C.A.A.F. 2010)), and do not overturn an MJ’s ruling unless it 

is “‘arbitrary, fanciful, clearly unreasonable, or clearly 

erroneous,’” United States v. McDonald, 59 M.J. 426, 430 

(C.A.A.F. 2004) (quoting United States v. Miller, 46 M.J. 63, 65 

(C.A.A.F. 1997)), or influenced by an erroneous view of the law. 

Id. (quoting United States v. Humphreys, 57 M.J. 83, 90 

(C.A.A.F. 2002)). 

An MJ must make three threshold findings before admitting 

MIL. R. EVID. 414 evidence: (1) whether the accused is charged 

with an act of child molestation as defined by MIL. R. EVID. 

414(a); (2) whether the proffered evidence relates to the 

accused’s commission of another child molestation offense as 

defined by the rule; and (3) whether the evidence is relevant 

under MIL. R. EVID. 401 and 402. Ediger, 68 M.J. at 248 (citing 

United States v. Bare, 65 M.J. 35, 36 (C.A.A.F 2007)). 

 

Upon finding proffered evidence satisfies the initial 

thresholds, the MJ must apply the MIL. R. EVID. 403 balancing 

test, under which the testimony may be excluded if its 

“probative value is substantially outweighed by the danger of 

unfair prejudice, confusion of the issues, or misleading the 

members, or by considerations of undue delay.” The MJ should 

consider at least the following factors: 1) the strength of 

proof of the prior act; 2) the probative weight of the evidence; 

3) potential to present less prejudicial evidence; 4) possible 

distraction of the fact-finder; 5) time needed to prove the 

prior conduct; 6) temporal proximity of the prior event; 7) 

frequency of the acts; 8) presence or lack of intervening 

circumstances; and 9) relationship between the parties. United 

States v. Wright, 53 M.J. 476, 482 (C.A.A.F. 2000) (citing 

United States v. Enjady, 134 F.3d 1427, 1433 (10th Cir. 1998) 

and United States v. Guardia, 135 F.3d 1326, 1331) (10th Cir. 

1998). 

The MJ here made the first two threshold findings, noting 

they were not challenged. He found the prior incidents relevant 

under MIL. R. EVID. 401 and 402 as showing a firm pattern of 

sexual conduct with nieces between eight and 16, at least seven 

years younger than, and living in the same home as, the 

appellant.17 He then considered the Wright factors in a MIL. R.

EVID. 403 analysis.18 He found CD and CW’s accounts very strong 

proof of the prior acts. Being so similar to each other and to 

 

17 AE XXXII at 4-5.

18 Id. at 5-6. 
7

what SH described, under the same or very similar living 

arrangements, the accounts had high probative weight. No less 

prejudicial evidence than the testimony existed. The need to 

minimize trials within trials would be met by limiting 

corroborating evidence for the testimony. The probative value 

was not outweighed by the readily apparent distraction and 

additional time resulting from presenting proof of the prior 

conduct. Temporal proximity of the previous acts was not too 

distant considering the appellant engaged CD, CW, or SH in 

frequent and regular sexual conduct whenever one of the girls 

lived with him. The conduct ended only when a niece moved or 

the appellant was stationed elsewhere. Relationships between 

the parties differed only in that SH was not the appellant’s 

biological niece--but his brother’s niece by marriage. 

Otherwise, the victims were all under-aged, female, extended 

family members living in the same home as the appellant.19 Thus, 

the MJ reached a permissible conclusion on admissibility of CD 

and CW’s testimony about the appellant previously molesting 

them. 

Considering CD and CW’s testimony for sentencing also was 

not an abuse of discretion, despite the appellant’s R.C.M. 1001 

and MIL. R. EVID. 403 objections. See United States v. Tanner, 63 

M.J. 445, 449 (C.A.A.F. 2006) (holding that “in a child 

molestation case, evidence of a prior act of child molestation 

‘directly relat[es] to’ the offense of which the accused has 

been found guilty and is therefore relevant during sentencing 

under R.C.M. 1001(b)(4)”). 

Sentence Appropriateness

We review sentence appropriateness de novo. United States 

v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). “Sentence 

appropriateness involves the judicial function of assuring that 

 

19 The ruling also addressed when the appellant was a minor: “[I]nteraction 

with C.D. continued nearly 7 years after he reached the age of 18. He was 

about twice C.D.’s age when the alleged abuse began: he was 14-15 years old 

while she was about 7-8 years old. He continued the sexual conduct until he 

was 25 years old. The Accused also turned to her sister, C.W. during an 

overlapping period after the Accused reached 18. Again, the pattern of the 

age, relationship, and timing between these incidents is too great....the 

court specifically finds the Accused’s conduct was chronic throughout. The 

prior sexual conduct with C.D. while the Accused was a minor does not fall 

within any concern that the prior incidents do not show propensity but 

conduct of an adolescent making immature choices without appreciating the 

severity of his acts. Weighing all the factors above and considering the 

high probative value to any unfair prejudice, the scales tip heavily in favor 

of the evidence’s admission.” Id. at 6 (emphasis in original). 
8

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 our “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) (citations and internal 

quotation marks omitted). Despite our significant discretion in 

reviewing the appropriateness and severity of the adjudged 

sentence, we may not engage in acts of clemency. United States 

v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).

The appellant repeatedly manipulated a child related to his 

extended family to satisfy his sexual desires while living in 

his brother’s home. He began this behavior shortly after the 

child’s arrival, “seeking refuge from th[e] tumultuous 

environment”20 of her previous home and parents’ pending divorce. 

Years of similar sexual abuse of his own nieces while living in 

his sister’s home demonstrate the extent of the harm inflicted 

on his family and his risk to society. With individualized 

consideration of the appellant, the nature and seriousness of 

his offenses, his record of service, and all the matters within 

the record of trial, we find his adjudged sentence appropriate.

Post-Trial Issues not Raised as Assignments of Error

We note two post-trial issues not raised by the parties: 

the addendum to the staff judge advocate’s recommendation (SJAR) 

fails to address the allegation of legal error in the 

appellant’s clemency request, and the promulgating order 

inaccurately reflects the dates of the sole offense of which the 

appellant was convicted--Specification 4 under Charge I. 

The CTDC argued in a clemency request that consideration of 

CD and CW’s “inadmissible evidence” resulted in the MJ’s “very 

high sentence.” The clemency letter was an enclosure to the 

SJAR addendum, which advised the CA that he was “required to 

consider these matters in determining whether to approve or 

disapprove any of the findings of guilty and the action [he 

would] take on the sentence.” It also advised, “There were no 

issues of legal error raised” by the defense. Having no “new 

matter” in the SJAR addendum under R.C.M. 1106(f)(7), the 

defense was not due more time for comment. The CA approved the 

sentence as adjudged without further defense correspondence. 

 

20 PE 1 at 1. 
9

Assuming the SJA committed plain error in violation of 

R.C.M. 1106(d)(4), this court is nonetheless “free to affirm 

when a defense allegation of legal error would not foreseeably 

have led to a favorable recommendation by the [SJA] or to 

corrective action by the [CA].” United States v. Hill, 27 M.J. 

293, 297 (C.M.A. 1988). In this appeal, we have evaluated and 

found no merit in the same claims that CD and CW’s testimony was 

inadmissible. Consequently, based on the facts in this case, 

the SJA’s improper advice did not prejudice the appellant. 

General Court-Martial Order No. 29-14, dated 19 February 

2015, says “from on or about September 2008 to on or about 

November 2008 to on or about January 2009” instead of “from on 

or about November 2008 to on or about January 2009.” Applying a 

harmless-error standard, we are convinced this scrivener’s error 

does not amount to plain error materially prejudicing the 

appellant’s substantial rights. See United States v. Crumpley, 

49 M.J. 538, 539 (N.M.Ct.Crim.App. 1998). But as the appellant 

is entitled to an official record correctly reflecting his 

court-martial results, we nonetheless order corrective action. 

Conclusion

We direct the supplemental court-martial order remove the 

words “September 2008 to on or about” from the recitation of 

Specification 4 of Charge I. Otherwise, the findings and 

sentence as approved by the CA are affirmed. 

 

 

 For the Court 

 R.H. TROIDL 

 Clerk of Court