UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

_________________________

No. 201500163

_________________________

UNITED STATES OF AMERICA

Appellee

v.

MICHAEL K. ELLIS

Chief Information Systems Technician (E-7), U.S. Navy

Appellant

_________________________

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Captain Robert J. Crow, JAGC, USN.

Convening Authority: Commander, Navy Region Southeast, Naval 

Air Station, Jacksonville, FL.

Staff Judge Advocate’s Recommendation: Commander George W. 

Lucier, JAGC, USN.

For Appellant: Brian A. Pristera, Esq.; Captain Daniel R. Douglass,

USMC.

For Appellee: Lieutenant Allyson L. Breech, JAGC, USN; Captain 

Sean M. Monks, USMC.

_________________________

Decided 30 March 2018

_________________________

Before MARKS, JONES, and WOODARD, 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.

_________________________

WOODARD, Judge:

In January 2015, the appellant was convicted of numerous offenses and 

was sentenced to two years’ confinement, reduction to pay grade E-1, and a 

dishonorable discharge. On 30 August 2016, this court set aside the findings 

and sentence and authorized a rehearing. See United States v. Ellis, No. 
United States v. Ellis, No. 201500163

2

201500163, 2016 CCA LEXIS 516, unpublished op. (N-M. Ct. Crim. App. 30 

Aug 2016). At a rehearing, a panel of members with enlisted representation,

sitting as a general court-martial, convicted the appellant, contrary to his 

pleas, of one specification of abusive sexual contact and two specifications of 

assault consummated by battery in violation of Articles 120 and 128, Uniform 

Code of Military Justice (UCMJ), 10 U.S.C. §§ 920 and 928 (2012).

1 The 

members sentenced the appellant to a letter of reprimand, 45 days’ 

restriction, and reduction to pay grade E-6. The convening authority (CA) 

approved the sentence as adjudged and ordered it executed.

2

The appellant alleges that the evidence is legally and factually 

insufficient to support his convictions. We agree, in part, and grant relief in 

our decretal paragraph. Although not raised by the parties, we note error 

within the court-martial order (CMO) and direct corrective action in our 

decretal paragraph. We are convinced the findings as modified herein 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.

I. BACKGROUND

The appellant and the victim, Chief Petty Officer (Chief) TA, worked 

together in the same department of the same command. As fellow chief petty 

officers, they often socialized in the same circles. Prior to the night of the 

offenses, neither the appellant nor Chief TA had ever expressed or 

demonstrated a romantic or sexual interest in the other. At the time of the 

misconduct, the appellant was living with his fiancée and their newborn son.

Chief TA was a single mother of a 14-year-old son, JA, who lived with her at 

her off-base home.

 

1 The charges and specifications before the rehearing were renumbered on a 

cleansed charge sheet, Appellate Exhibit (AE) IX. The appellant was charged with 

two specifications of abusive sexual contact in violation of Article 120(d), UCMJ, and 

two specifications of assault consummated by a battery in violation of Article 128, 

UCMJ. At the conclusion of the government’s case, and pursuant to the appellant’s 

RULE FOR COURTS-MARTIAL 917, MANUAL FOR COURTS-MARTIAL, UNITED STATES 

(2016 ed.), motion, the military judge entered findings of not guilty to the language 

“forcing her to the ground” in the abusive sexual contact alleged in Specification 2 of 

Charge I. He also entered a finding of not guilty of Specification 2 of Charge II which 

alleged that same conduct as an assault consummated by battery. The members 

acquitted the appellant of the greater offense of abusive sexual contact alleged in 

Specification 1 of Charge I but convicted him of the lesser included offense of an 

assault consummated by a battery, in violation of Article 128, UCMJ.

2 This court maintains jurisdiction over the case because the appellant’s original 

approved sentence included a dishonorable discharge. See Art. 66(b)(1), UCMJ; 

United States v. Johnson, 45 M.J. 88, 90 (C.A.A.F. 1996).
United States v. Ellis, No. 201500163

3

On 8 December 2012, the appellant, Chief TA, and several other chief 

petty officers from the command gathered to watch the annual Army-Navy 

football game at a sports bar. Following the game, the appellant, Chief TA, 

Chief TW,

3 and Chief JH,4 all of whom had been drinking alcohol to some 

degree, adjourned to Chief TA’s nearby home to continue celebrating the 

Navy victory. Many months later, Chief TA accused the appellant of 

inappropriately touching her without her consent on three separate occasions 

that night. 

We will address each offense chronologically, and refer to them by the 

location in which they occurred—bathroom, kitchen, and then bedroom.

II. DISCUSSION

We review both legal and factual sufficiency de novo. United States v. 

Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (citing United States v. Cole, 31 

M.J. 270, 272 (C.M.A. 1990)); see also Art. 66(c), UCMJ. When reviewing 

legal sufficiency, we ask 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. Turner, 25 

M.J. 324, 324-25 (C.M.A. 1987) (citing Jackson v. Virginia, 443 U.S. 307, 319 

(1979)). In evaluating factual sufficiency, we determine whether, after 

weighing the evidence in the record of trial and making allowances for not 

having personally observed the witnesses, we are convinced of the appellant’s 

guilt beyond a reasonable doubt. Id. at 325. “Reasonable doubt, however, does 

not mean the evidence must be free from conflict.” United States v. Rankin, 

63 M.J. 552, 557 (N-M. Ct. Crim. App. 2006) (citation omitted). In exercising 

the duty imposed by this “awesome, plenary, de novo power,” Cole, 31 M.J. at 

272, this court may judge the credibility of witnesses, determine controverted 

questions of facts, and substitute our judgment for that of the court-martial 

members. Art. 66(c), UCMJ. Further, we may believe part of a particular

witness’ testimony yet disbelieve another part. United States v. Harris, 8 M.J. 

52, 59 (C.M.A. 1979); see Art. 66(c), UCMJ.

A. Assault consummated by a battery in the bathroom

The first offense occurred in the bathroom with the appellant convicted of

touching Chief TA’s breasts and buttocks with his hands, without her 

consent, in violation of Article 128, UCMJ . To support this conviction, the 

 

3 Chief TW, a female, had recently joined the command. This was her first social 

interaction with the appellant and Chiefs TA and JH.

4 Chief JH, a male, was a good friend of both the appellant and Chief TA. 
United States v. Ellis, No. 201500163

4

government needed to prove beyond a reasonable doubt that: (1) the 

appellant did bodily harm to Chief TA; (2) that he did so by touching her 

breasts and buttocks with his hands; and (3) the bodily harm was done with 

unlawful force or violence. 

An assault is “an attempt or offer with unlawful force or violence to do 

bodily harm to another[.]” MANUAL FOR COURTS-MARTIAL (MCM), UNITED 

STATES (2016 ed.), Part IV, ¶ 54.c.(1)(a). “Bodily harm” is any offensive 

touching of another, however slight. Id. “Unlawful force or violence” is 

physical force used “without legal justification or excuse and without the 

lawful consent of the person affected.” Id. A battery is “an assault in which 

the attempt or offer to do bodily harm is consummated by the infliction of 

that harm.” Id. at ¶ 54.c.(2)(a).

The evidence presented at trial establishes that after arriving at Chief 

TA’s home, the appellant continued to drink heavily while playing dominoes.

The dominoes game ended when the appellant and Chief TA began arguing 

over how the game should be scored. In the midst of the disagreement, Chief 

TA excused herself from the game table in the kitchen in order to use the

bathroom. The appellant followed her, uninvited, into the bathroom, shut the 

door, and continued the argument. Then, without Chief TA’s consent, he 

touched her breast over her clothing, attempted to kiss her, and placed his 

hand under her dress—touching her underwear—while commenting about 

her underwear “[o]h you’ve got the nice ones on too.”

5 Chief TA testified that 

she then pushed the appellant away from her and told him to “[g]et

the f[***] out.”6 Chief TW and JA heard Chief TA tell the appellant to get out

of the bathroom.

Although Chief TA did not confront the appellant about his actions in the 

bathroom in front of her guests, she did later confide in Chief TW—the only 

other female present—that something had happened in the bathroom. After 

Chief TA and the appellant emerged from the bathroom, Chief TW informed 

Chief TA that it was time for her to head home. Chief TW testified that as 

she was leaving Chief TA told her the appellant had “come on to her”7 and 

that he was “brushing up on her”8in the bathroom and that she did not like 

it.

 

5 Record at 200.

6 Id. at 207.

7 Id. at 310.

8 Id. at 318.
United States v. Ellis, No. 201500163

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Despite the appellant’s conduct in the bathroom, Chief TA did not ask 

him to leave. Chief TA explained that this was because of the level of her 

fellow chiefs’ intoxication at that point in the evening. She was concerned for 

both chiefs’ careers—the appellant and Chief JH—should they be arrested for 

driving to their homes while intoxicated.9

After reviewing the record of trial and considering the evidence in the 

light most favorable to the prosecution, we are convinced that a reasonable 

fact-finder could have been convinced beyond a reasonable doubt that, while 

in the bathroom with Chief TA, the appellant did bodily harm to her by 

touching her breasts and buttocks with his hands, without her consent. 

Furthermore, after weighing the evidence in the record of trial and making 

allowances for not having personally observed the witnesses, we too are 

convinced beyond a reasonable doubt that the appellant did bodily harm to 

Chief TA while in the bathroom. 

However, based upon the record before us, we are only convinced that he 

did so by touching her buttocks and one of her breasts with one of his hands.

Thus, we find the evidence is legally and factually sufficient to sustain a 

modified finding of guilty to Charge II, Specification 1. In our decretal 

paragraph, we will except the words “breasts” and “hands” and substitute 

therefor the words “breast” and “hand.”

B. Abusive sexual contact in the kitchen

The second offense occurred in the kitchen with the appellant convicted of

lying on top of Chief TA with his body and touching her thighs and buttocks 

with his hands, without her consent, in violation of Article 120(d), UCMJ. To 

support the appellant’s conviction of abusive sexual contact, the government 

needed to prove beyond a reasonable doubt that: (1) the appellant committed 

sexual contact upon Chief TA, to wit: lying on top of her with his body, and 

touching her thighs and buttocks with his hands; (2) he did so by causing 

bodily harm to Chief TA, to wit: lying on top of her with his body, and 

touching her thighs and buttocks with his hands; and (3) he did so without 

Chief TA’s consent.

Sexual contact is defined as any “touching, . . . either directly or through 

the clothing, [of] any body part of any person, if done with an intent to arouse 

or gratify the sexual desire of any person.” MCM, Part IV, ¶ 45.a(g)(2)(B). 

“Bodily harm” means “any offensive touching of another, however slight,

 

9 Id. at 215-16. The appellant had parked his vehicle at a nearby military 

installation, and Chief JH provided him a ride to the sports bar and then to Chief 

TA’s home.
United States v. Ellis, No. 201500163

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including any . . . nonconsensual sexual contact.” Id. at ¶ 45a.(g)(3). 

“‘[C]onsent’ means a freely given agreement to the conduct at issue by a 

competent person. An expression of lack of consent through words or conduct 

means there is no consent.” Id. at ¶ 45a.(g)(8). The government may prove the

appellant’s intent in touching with circumstantial evidence. United States v. 

Vela, 71 M.J. 283, 286 (C.A.A.F. 2012).

The evidence presented at trial establishes that sometime later in the 

evening—after the bathroom incident—Chief TA was in the kitchen cooking. 

While Chief JH and JA were seated on a couch in the adjoining living room 

watching television and talking, the appellant, uninvited, joined Chief TA in 

the kitchen. The appellant began “tussling”

10 with Chief TA over a cooking

utensil. Somehow, during the struggle, the two of them fell to the floor behind 

a kitchen island and out of sight of JA and Chief JH. Chief TA ended up flat 

on her back, with the appellant lying on top of her. Chief TA told the 

appellant to “get off”11 of her and unsuccessfully tried to “push him up off [of 

her].”12 During the struggle, the appellant, once again, placed his hand under 

her dress and began “tugging at [her] panties.”13 Chief TA then grabbed a 

nearby hammer and threatened to hit the appellant in the head with it.

Although Chief TA never testified that the appellant specifically touched her 

buttocks, when asked if the appellant “touch[ed] [her on] the back of [her]

thigh”14 she answered that the appellant “was tugging at [her] panties right 

then.”15

During the incident, Chief TA called out for assistance saying, “[Chief 

JH], come get your boy.”16 After hearing Chief TA call for assistance several

times, first JA and then Chief JH came to her aid. When JA entered the 

kitchen, he saw the appellant, who was much larger than both him and his 

mother, lying of top of his mother. Fearing for his mother’s safety, JA ran 

upstairs to get a stun gun. But before JA could return, Chief JH—who had

entered the kitchen and observed the appellant lying on top of Chief TA—had 

separated the parties, helped them to their feet, and ensured the appellant 

returned to the living room. Although Chief JH did not recall seeing a 

hammer, a stun gun, or whether Chief TA’s dress was pulled up or 

 

10 Id. at 210.

11 Id.

12 Id. at 213.

13 Id. at 210 and 213.

14 Id. at 213.

15 Id.

16 Id. 
United States v. Ellis, No. 201500163

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disheveled, he acknowledged that he was very intoxicated at the time and 

“didn’t focus on [the] details[.]”

17

Again, Chief TA did not outwardly confront the appellant about his 

conduct or complain to Chief JH. Nor did she require that the appellant leave

her home for the same reason as before.

After reviewing the record of trial and considering the evidence in the 

light most favorable to the prosecution, we are convinced that a reasonable 

fact-finder could have been convinced beyond a reasonable doubt that while 

on the floor in the kitchen, the appellant, without the consent of Chief TA,

touched her by lying on top of her with his body and touched her thighs and 

buttocks while tugging at her underwear. And, despite his level of 

intoxication, the appellant did so with the intent to arouse or gratify his 

sexual desires. The appellant’s intent can be readily inferred from the 

manner in which he touched Chief TA in the bathroom, his comment 

regarding her underwear, and the manner in which he touched Chief TA in 

the kitchen. Furthermore, after weighing the evidence in the record of trial 

and making allowances for not having personally observed the witnesses, we 

too are convinced beyond a reasonable doubt that the appellant commited

sexual contact upon Chief TA while on the floor in the kitchen. 

However, based upon the record before us, we are only convinced that he 

did so by lying on top of her with his body and touching her buttocks and one 

of her thighs with one of his hands as he was tugging at her underwear. Thus 

we find the evidence is legally and factually sufficient to sustain a modified 

finding of guilty to Charge I, Specification 2. In our decretal paragraph, we 

will except the words “thighs” and “hands” and substitute therefor the words 

“thigh” and “hand.”

C. Assault consummated by a battery in the bedroom

The third offense occurred in the bedroom with the appellant convicted of 

rubbing Chief TA’s shoulders with his hands, without her consent, in 

violation of Article 128, UCMJ. To support the appellant’s conviction the 

government needed to prove beyond a reasonable doubt that: (1) the 

appellant did bodily harm to Chief TA; (2) that he did so by rubbing her 

shoulders with his hands; and (3) the bodily harm was done with unlawful 

force or violence.

The evidence presented at trial establishes that, after leaving the kitchen, 

the appellant went to the living room and sat down on the couch. Chief TA 

 

17 Id. at 403.
United States v. Ellis, No. 201500163

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and her son ate, cleaned the kitchen, and then retired to their upstairs 

bedrooms for the evening. When Chief TA went upstairs to her bedroom, the 

appellant appeared to be asleep on one of the couches in the living room. Not 

“feel[ing] right”18 about what had occurred during the course of the evening

and knowing that her bedroom door lock was not functioning, Chief TA 

placed her .380 caliber pistol under her pillow. Sometime later, the appellant 

entered her bedroom, sat down on the edge of her bed, and began discussing 

problems he was having with his fiancée. After telling the appellant 

“[w]hatever problems that you guys are having, you need to fix that at 

home[,]”

19 the appellant began to rub her shoulders with his hands in a

massage-like manner. Chief TA immediately moved away from the appellant 

so that he could no longer touch her. He then leaned in towards her in what 

Chief TA perceived as an attempt to kiss her. At that point, she removed the 

pistol from under the pillow, placed it on her lap, and told the appellant “he 

was doing too much and he needed to go.”20 Chief TA then followed the

appellant down the stairs and informed Chief JH “[y]eah, you all got to go.”21

Shortly thereafter, Chief JH and the appellant departed, in the middle of the 

night.

After reviewing the record of trial and considering the evidence in the 

light most favorable to the prosecution, we are convinced that a reasonable 

fact-finder could have been convinced beyond a reasonable doubt that, while 

in the bedroom, the appellant did bodily harm to Chief TA by rubbing her 

shoulders with his hands without her consent. Furthermore, we too are 

convinced beyond a reasonable doubt of the appellant’s guilt of the offense of 

an assault consummated by a battery of Charge I, Specification 1.

In considering the factual sufficiency of all three offenses, we find Chief 

TA’s testimony to be credible, compelling, and unrebutted. Of note, although 

the offenses inflicted upon Chief TA were not observed by other witnesses—

except the appellant’s lying on top of her in the kitchen—her testimony 

regarding other key facts of the surrounding events was independently 

corroborated by the other witnesses. Furthermore, despite the trial defense 

team’s cross-examination efforts, her character for truthfulness remained 

intact. The persistent manner in which the appellant pursued and touched 

Chief TA and his sexually charged comments regarding her underwear are 

overwhelming circumstantial evidence of his intent to gratify his sexual 

desires. Finally, despite the appellant’s level of intoxication, there can be no 

 

18 Id. at 217.

19 Id. at 217-18.

20 Id. at 220.

21 Id. at 399.
United States v. Ellis, No. 201500163

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reasonable mistake of fact regarding consent given Chief TA’s repeated, clear, 

and escalating responses to the appellant’s actions—demanding that he get 

out of the bathroom; calling for assistance from her fellow chief; threatening 

to hit him in the head with a hammer; and finally pulling a pistol and telling 

him to leave her home. 

D. Sentence reassessment

Having set aside the finding of guilty to some of the language alleged in 

Charge I, Specification 2 and Charge II, Specification 1, we must now

determine if we are able to reassess the appellant’s sentence. We have “broad 

discretion” when reassessing sentences. United States v. Winckelmann, 73 

M.J. 11, 12 (C.A.A.F. 2013). However, we can only reassess a sentence if we 

are confident “that, absent any error, the sentence adjudged would have been 

of at least a certain severity[.]” United States v. Sales, 22 M.J. 305, 308 

(C.M.A. 1986).

In determining whether to reassess a sentence or to order a sentencing 

rehearing, we consider the five factors espoused in our superior court’s 

holding in Winckelmann: (1) whether there has been a dramatic change in 

the penalty landscape and exposure; (2) the forum of the court-martial; (3) 

whether the remaining offenses capture the gravamen of the criminal 

conduct; (4) whether significant aggravating circumstances remain 

admissible and relevant; and (5) whether the remaining offenses are the type 

with which we as appellate judges have experience and familiarity to 

reasonably determine what sentence would have been imposed at trial. 

Winckelmann, 73 M.J. at 15-16.

Because our findings do not effect significant changes to the language of 

the offenses and do not completely set aside the findings of guilty to any 

offense, there is no change in the penalty landscape. The remaining language 

captures the gravamen of the criminal conduct for which the members 

sentenced the appellant, and the modifications do not render any evidence 

presented at trial inadmissible or irrelevant. Furthermore, these are offenses 

with which we, as appellate judges, have in depth experience and familiarity. 

The evidence of the appellant’s culpability and the harm inflicted on Chief TA 

remains the same. We conclude that sentence reassessment is appropriate. 

We are confident that, absent the error in this case, the court-martial would 

have imposed no less of a sentence than the members adjudged—a letter of 

reprimand, reduction to pay grade E-6, and 45 days’ restriction.

E. CMO error

An appellant is entitled to an official record accurately reflecting the 

results of his proceedings. United States v. Crumpley, 49 M.J. 538, 539 (N-M. 
United States v. Ellis, No. 201500163

10

Ct. Crim. App. 1989). We test error in court-martial orders under a harmlesserror standard. Id.

At a minimum, a court-martial promulgating order must contain the 

following information: (1) the type of court-martial and the convening 

command; (2) a summary of all charges and specifications on which the 

appellant was arraigned; (3) the appellant’s pleas; (4) the findings or

disposition of all charges and specifications on which the appellant was 

arraigned; (5) if adjudged, the sentence; and (6) a summary of the action 

taken by the CA in the case. RULE FOR COURTS-MARTIAL (R.C.M.)

1114(c)(1), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.)

(emphasis added).

Although not raised by the parties, we note that the CMO incorrectly 

omits the language “forcing her to the ground” from Charge I, Specification 2, 

and fails to reflect a summary of and the appellant’s pleas to Charge II, 

Specification 2. Here, the appellant was arraigned on and entered pleas of not 

guilty to the language and specification omitted from the CMO. Furthermore, 

the military judge, on the record, entered findings of not guilty to the omitted 

language and specification pursuant to an R.C.M. 917 motion. The failure to 

reflect the omitted information in the CMO was error; however, the error was 

harmless as it did not materially prejudice the appellant’s substantial rights. 

To ensure the appellant has an official record which accurately reflects his 

proceedings, in our decretal paragraph we will order that the supplemental 

CMO reflect the information omitted in the CMO.

III. CONCLUSION

The approved findings, as modified by this court, and the sentence, as 

reassessed, are affirmed. 

The supplemental CMO shall reflect: (1) an accurate summary of Charge 

I, Specification 2 which includes the language “forcing her to the ground,” the 

appellant’s plea of not guilty to the specification, and the correct findings—

guilty, excepting the language “forcing her to the ground,” excepting the word 

“thighs” and substituting therefor the word “thigh,” and excepting the word

“hands” and substituting therefor the word “hand”; not guilty to the excepted 

language but guilty to the specification as excepted and substituted; (2) the 

findings to Charge II, Specification 1—guilty, excepting the word “breasts”

and substituting therefor the word “breast” and excepting the word “hands”

and substituting therefor the word “hand”; not guilty to the excepted 

language but guilty to the specification as excepted and substituted; and (3) a 

summary of Charge II, Specification 2 alleging the appellant forced Chief TA 
United States v. Ellis, No. 201500163

11

to the ground with his hands, the appellant’s plea of not guilty to the 

specification, and the finding of not guilty to the specification pursuant to 

R.C.M. 917. 

 For the Court 

 R.H. TROIDL 

 Clerk of Court