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_________________________ No. 201 5 001 63

_________________________ 

### UNITED STATES OF AMERICA

Appellee

v.


### MICHAEL K . E LLIS Chief Information Systems Technician (E

- 7 ), U.S. Navy Appellant

______________

___________ Appeal from the United States Navy

- Marine Corps Trial Judiciary

Military Judge: C a ptain Robert J

. Crow
, JAGC, US N

. Convening Authority: Commander, Navy Region Southeast
, Naval

Air Station , Jacksonville, FL

. Staff Judge Advocate’s Recommendatio n: 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 201 8

_______ __________________ Before M ARKS , J ONES , and W OODARD , 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2 201500163, 2016 CCA LEXIS 516, unpublished op.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). A t a rehearing, a panel of members with enlisted representation
, sitting as a general court

- martial, con victed the appellant , contrary to his pleas, of one specification of abusive sexual contact and two specifications of assault consummated by battery in violation of Article s 120 and 128
, Uniform Code of Military Justice ( UCMJ ) , 10 U.S.C. § § 9 20 and 928 (20 12)

. 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 l egally and factually insufficient to support his convictions. We agree
, in par t, and grant relief in our decretal paragraph. Although not raised by the parties, we note error within the court

- martial order (CMO) and direct correct ive act ion 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. B ACKGROUND
T he appellant and the victim, Chief Petty Officer (Chief) TA, worked together in the same department of the same command . A s fellow c hief p etty

o fficers
, they often socialized in the same circles. P rior to the night of the offenses , neither the appellant no r 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. T he 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 R ULE FOR C OURTS

- M ARTI AL 917, M ANUAL FOR C OURTS

- M ARTIAL , U NITED S TATES ( 201 6 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 S pecification 2 of Charge I

. He also entered a f i nd ing of not guilty of S pecification 2 of Charge II which alleg ed that same conduct as a n assault consummated by battery . The members acquitted the appellant of the greater offense of abusive sexual contact alleged in S pecification 1 of Charge I but convict ed 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 c hief
p etty o fficers from the command gathered to watch the annual Army

- Navy football game at a sports bar. Following the game , the appellant, Chief TA, Chief T W
, 3 a nd Chief J H
, 4 all of whom had been drinking alcohol to some degree
, adjourned to Chief TA’s nearby home to continue celebrating the Navy victor y

. Many months later, Chief TA accused the appellant of inappropriately touching her without her consent on t hree separate occasions that night

. W e will address each offense chronological ly, and refer to them by the location in which they occurred

— bathroom, kitchen, and then bedroom.

II. D ISCUSSION We review both legal and factual sufficiency de novo

. United States v. Washington , 57 M.J. 394, 39 9 (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 prosec ution, 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. Unit ed States v. Harris , 8 M.J. 52, 59 (C.M.A. 1979); see Art. 66(c), UCMJ.
A. A ssault consummated by a battery in the bathroom
The first offense occurred in the bathroom with the appellant convicted of touch ing Chief TA’s breasts and buttocks with his han ds
, without her
consent , in violation of Article 128, UCMJ

. To support th is conviction, the

3 Chief TW, a female, had recently joined the command

. This was her first social interaction with the appellant and Chief s 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 i s “ an attempt or offer with unlawful force or violence to do bodily harm to another [

. ] ” 

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### (201 6 ed.) , Part IV, ¶ 5 4.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 assa ult 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 e vidence presented at trial establishes that after arriving at Chief TA’s home, the appellant continued to drink heavily while pl aying dominoes

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

over how the game should be scored. I n the midst of the disagreement
, Chief TA excused herself from the game table in the kitchen in order to use the bathroom. The appell ant followed her , uninvited, into the bathroom, shut the door, and continued t he 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 co mmenting 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 emer ged 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” 8 in 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

5 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 . S he was concerned for both c hiefs’ ca reers

— 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 fa ct

- 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, S pecification 1 . In our decret al 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 touch ing 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
touc hing her thighs and buttocks with his hands; and (3) he did so without Chief TA’s consent.
S exual 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 gra tify the sexual desire of any person.” MCM, Part IV, ¶ 45. a ( g ) (2)(B).

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

9 Id . at 215

- 16. T he 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

6 including any

. . . nonconsensual sexual contact.” Id

. at ¶ 45 a

. ( g ) (3).

“ ‘ [ C ] onsent’ means a freely given agreeme nt 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 ¶ 45 a

. ( g ) (8). The government may prove the appellant’s intent in touching with circumstantial evidence. United St ates 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

. W hile Chief JH and JA were seated on a couch in the adjoining l iving room watching television and talking, the appellant , uninvited, joined Chief TA in the kitchen. The appellant began “tussl ing ” 10 with Chief TA over a cooking utensil. Somehow, during the struggle, the two of them fell to the floor behind a kitchen isl and 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 appellan t , 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 h er 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 b oy.” 16 After hearing Chief TA call for assistance several times, first JA and then Chief JH came to her aid. When JA enter ed the kitchen, he saw the appellant , who was much larger than both him and his mother, lying of top of his mother

. F earing for his mot her’s safety, JA ran upstairs to get a stun gun. But b efore 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 t o 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

7 disheveled, he acknowledge d 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

. N or 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 favorab le 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 l ying on top of her with his bo dy and touch ed her thighs and buttocks while tugging at her underwear . And
, despite his level of intoxication, t he 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 w hich 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 obser ved the witnesses, we too are convinced beyond a reasonable doubt that the appellant commit ed 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 o f 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, S pecification 2

. In our decretal paragraph, we will except the words “thighs” and “hands” and substitut e 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

r ubbing 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) tha t 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

8 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] ri ght” 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 ma nner. Chief TA immediately moved away from the appellant so that he could no longer touch her

. H e then leaned in towards her in what Chief TA perceived as an attempt to kiss her. At th at 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 th e 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 ap pellant 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, S pecifi cation 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 appell ant’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 tru thfulness 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, de spite 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

9 reasonable mistake of fact regarding consent given Chief TA’s repeated, clear, and escalating responses to the appellant’s actions

— demand ing that he get out of the bathroom; call ing for assistanc e 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, S pec ification 2 and Charge II, S pecification 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. Winck el man n , 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 re assess a sentence or to order a sentencing rehearing, we consider the five factors espoused in our superior court’s holding in Win c k el man n : (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 of fenses 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. Winck e lman n , 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 offens e, there is no change in the penalty landscape

. T he 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 irreleva nt

. 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 o n Chief TA remain s the same. We conclude that sentence reassessment is app ropriate

. 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 harmless

error 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. 

### R ULE FOR 

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### (R.C.M.) 1114(c)(1) 

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### - M ARTIAL 

### , U NITED 

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### (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 spe cification p ursuant to an R.C.M. 917 motion. Th e failure to reflect th e 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. C ONCLUSION The approved findings, as modified by this court, and the sentence, as

reasses sed, are affirmed.

T he supplemental CMO shall reflect : (1) an accurate summary of Charge I, S pecification 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
, except ing the language “ forcing her to the ground
, ” except ing the word

“ thighs ” and substituting therefor the word “ thigh
, ” and except ing the word

“ hands ” and substituting therefor the word “ hand ” ; not guilty to the excepted language but guilty to the spe cification as excepted and substituted; (2) the findings to Charge II, S pecification 1

— guilty , except ing the word “ breasts ” and substituting therefor the word “ breast ” and except ing 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, S pecification 2 alleging the appellant forced Chief TAUnited States v. Ellis , No. 201500163

11 to the ground with his hands
, the a ppellant’s plea of not guilty to the specification , and the finding of not guilty to the s pecification pursuant to R.C.M. 917

.

For the Court

R.H. TROIDL Clerk of Court