UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

F.D. MITCHELL, J.A. FISCHER, K.M. MCDONALD

Appellate Military Judges

UNITED STATES OF AMERICA

v.

RONNIE G. OAKLEY, JR.

INFORMATION SYSTEMS TECHNICIAN 

THIRD CLASS (E-4), U.S. NAVY

NMCCA 201200299

GENERAL COURT-MARTIAL

Sentence Adjudged: 13 September 2013.

Military Judge: CAPT Andrew Henderson, JAGC, USN.

Convening Authority: Commander, Navy Region Northwest,

Silverdale, WA.

Staff Judge Advocate's Recommendation: LCDR D.E. Rieke, 

JAGC, USN.

For Appellant: LT Jennifer Myers, JAGC, USN.

For Appellee: LCDR Keith B. Lofland, JAGC, USN; Capt Cory 

Carver, USMC.

21 April 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.

FISCHER, Senior Judge: 

This case is before us for a second time. In March 2012, a

general court-martial consisting of officer and enlisted members 

convicted the appellant, contrary to his pleas, of aggravated 

sexual assault and committing an indecent act in violation of 

Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920. 
2

The members sentenced the appellant to three months’ confinement, 

forfeiture of all pay and allowances, reduction to pay grade E-1, 

and a bad-conduct discharge. On the first appeal, we set aside 

the findings and sentence due to instructional error. United 

States v. Oakley, No. 201200299, 2013 CCA LEXIS 245, unpublished 

op. (N.M.Ct.Crim.App. 26 Mar 2013).

At a rehearing in September 2013, a general court-martial 

consisting of officer and enlisted members again convicted the 

appellant, contrary to his pleas, of one specification each of 

aggravated sexual assault and committing an indecent act, in 

violation of Article 120, UCMJ. The appellant was sentenced to 

reduction to pay grade E-1, forfeiture of all pay and 

allowances, five years’ confinement, and a dishonorable 

discharge. The convening authority (CA) approved only so much 

of the sentence as was adjudged at the appellant’s first courtmartial and, except for the punitive discharge, ordered the 

sentence executed.

The appellant raises eight assignments of error (AOE).1 

After carefully considering the record of trial, the submissions 

 

1 The appellant raises the following AOEs: 

I. The findings from his original trial were ambiguous and unreviewable and 

thus subjected him to double jeopardy at his rehearing.

II. The military judge abused his discretion by denying the defense challenge 

for cause against LT S.

III. The military judge abused his discretion by failing to declare a 

mistrial when a defense witness provided less favorable presentencing

testimony at the rehearing after members of his command admonished him for 

favorable comments he made about the appellant during the original trial. 

IV. The military judge erred in finding no apparent unlawful command 

influence. 

V. The military judge erred in admitting into evidence the appellant’s 

statements to Naval Criminal Investigative Service (NCIS) agents. 

VI. The military judge erred by admitting evidence that the appellant 

previously sexually assaulted the victim when he was twelve years old.

VII. The military judge erred by permitting the victim’s mother to testify 

that the victim told her the appellant “attacked” her as an excited 

utterance. We find no merit to this AOE. United States v. Clifton, 35 M.J. 

79, 81-82 (C.M.A. 1992).

VIII. The military judge erred by failing to dismiss Specification 1 of the 

sole Charge when the members in the original trial necessarily acquitted the 

appellant of all of the elements of aggravated sexual assault.
3

of the parties, and oral argument2, we are convinced that the 

findings and sentence are correct in law and fact and that no 

error materially prejudicial to substantial rights of the 

appellant occurred. Arts. 59(a) and 66(c), UCMJ.

I. Background

The appellant's conviction arose from an incident with his 

then 19-year-old stepsister, Culinary Specialist Third Class (CS3) 

FC, on 29 April 2011. That evening, the appellant, CS3 FC, and 

other members of their family were drinking alcohol together for 

several hours in the home of the appellant’s father and stepmother. Later that evening, CS3 FC fell asleep on a recliner in 

the den of the home. Sometime after she fell asleep, the appellant 

entered the den and digitally penetrated her vagina while he 

masturbated. 

Following these events, agents from the Naval Criminal 

Investigative Service (NCIS) interrogated the appellant. During 

the interrogation, the appellant provided both a handwritten and 

typed statement detailing his recollection of the evening.3

 In his 

statements, he admitted that he may have digitally penetrated CS3 

FC’s vagina while she lay sleeping on the recliner; however, he 

also indicated that he thought she acquiesced when she “open[ed]

her legs wider.”4

 

At the appellant’s first trial CS3 FC testified that the 

appellant entered the den three separate times while she lay in the 

recliner sleeping. However, she testified that he sexually 

assaulted her only during the first and third instances. She 

testified that second instance was when she awoke to the appellant 

smoking a cigarette. At the conclusion of evidence, the military 

judge entered findings of not guilty to the words “on divers 

occasions” in each of the three Article 120 offenses (aggravated 

sexual assault, wrongful sexual contact, and indecent act). The 

military judge subsequently directed that the findings worksheet 

specify findings by delineating the two instances for the three 

Article 120 offenses with the “smoking of the cigarette as the 

focal point.”5

 The members found the appellant not guilty of any 

 

2 On 10 December 2014 we heard oral argument on the appellant’s first AOE.

3 Prosecution Exhibits 8 and 10.

4 PE 10 at 1.

5 *Original Record at 681, 771-80; *Appellate Exhibit LVIII. All citations 

referencing the first court-martial record will be designated with an (*).
4

offense during the first instance and guilty of aggravated sexual 

assault and indecent act during the latter instance.6 

At the second trial, presided over by a different military 

judge, CS3 FC testified that she awoke to the smell of smoke and 

observed the appellant sitting in a chair smoking a cigarette.7 

When she asked why he was not smoking out on the “front stoop,” the 

appellant replied, “Oh, I’m sorry. I forgot,” and she assumed that 

he then left the room.8 CS3 FC testified that she next awoke to the 

appellant removing the comforter from her legs, moving her underwear 

and shorts to the side, and penetrating her vagina with his fingers.9

 

She testified that the appellant licked her vagina and then 

unsuccessfully attempted to penetrate her vagina with his penis. CS3 

FC stated that he then “continued to penetrate [her] with his 

fingers” and lick her vagina.10 CS3 FC testified that the appellant 

masturbated while he performed these sexual acts on her.11 

Additional facts necessary for the resolution of particular 

assignments of error are included below.

II. Double Jeopardy

The appellant avers, for the first time, that the military 

judge’s findings of “not guilty” to the words “on divers 

occasions” in his first court-martial led to an ambiguous 

verdict and, thus the rehearing was held in violation of the 

double jeopardy clause. Moreover, the appellant maintains that 

the ambiguous verdict in the first trial coupled with the double 

jeopardy clause violation at the rehearing precludes our Article 

66, UCMJ, review of the appellant’s convictions for 

Specifications 1 and 2 of the sole Charge. 

A. Background

The pertinent specifications at the second trial are as 

follows:

 

6 *AE LVIII. 

7 Record at 645. 

8 Id. at 648.

9 Id.

10 Id. at 653-55.

11 Id. at 657
5

Specification 1: In that [appellant], on active duty, did, 

at or near [location], on divers occasions, on or about 30 

April 2011, engage in a sexual act, to wit: penetration of 

the genital opening with his finger of [CS3 FC], who was 

substantially incapable of declining participation in the 

sexual act. 

Specification 2: In that [appellant], on active duty, did, 

at or near [location], on divers occasions, on or about 30 

April 2011, wrongfully commit indecent conduct, to wit: 

masturbating in the presence of [CS3 FC] without the 

consent of the said [CS3 FC]. 

At the appellant’s first trial, the trial defense counsel 

filed a motion to dismiss for multiplicity and unreasonable 

multiplication (UMC) of charges, arguing:

[A]ll of this conduct occurred in a short time span, 

at the same location, and was essentially the same act 

that may have occurred on “divers” occasions. The 

government cannot claim that these acts were related 

to separate instances of conduct as each charge 

alleges “on divers” occasions and {CS3 FC} claims each 

act occurred simultaneously on these divers occasions. 

These specifications are not aimed at separate 

criminal acts.12

The following discussion then took place on the record:

DC: . . . As far as unreasonable multiplication of 

charges, these charges all stem from the same 

incident, one intent, one course of conduct, and we 

believe that they’re unreasonable for even this 

purpose of----

MJ: Well, did I mishear the evidence? I mean there 

seem to be at least two, if not three, different 

episodes in the late hours of the 29th/early hours of 

the 30th.

DC: Sir, but the way that the government has charged 

it is on divers occasions, in--indicating that those 

different acts are all in each one of those 

specifications.13

 

12 *AE IV at 8.

13 *Record at 678-80.
6

Later, the military judge stated:

There is an easy way out for me, and that is simply to 

enter a finding of not guilty with respect to the 

words “on divers occasions;” I’m not sure that that 

gives the defense everything that it wants because it, 

then, has three standalone offenses on there, but it 

does remove any kind of Walter—Walters and Seider

problem, and I think it actually fairly describes what 

happened on the 30th of 

April.14

The military judge then entered findings of “not guilty” to the 

words “on divers occasions” with respect to the pertinent 

charges.15 

The military judge subsequently clarified his findings to 

the members: 

What I have done is I have entered a not-guilty 

finding with regard just to that language, “on divers 

occasions,” which means more than once. The evidence 

that has come in might allow you to find [the 

appellant] guilty of each of those specifications on 

one occasion, but . . . the evidence will not allow 

you to find him guilty of doing those things more than 

once, so that’s why I’ve entered the finding of not 

guilty with respect to the words “on divers 

occasions.”16 

After the court closed for deliberations, the military 

judge held an Article 39(a), UCMJ, session outside the members’ 

presence during which he stated that when he ruled on the 

defense’s UMC motion and removed the words “on divers occasions” 

from the specifications, he “actually complicated things from a 

Walters and Seider, what can the Court of Criminal Appeals 

review under an Article 66(c) standpoint because there is 

credible evidence . . . that there may have been two instances 

where [the appellant] was in the den masturbating.”17 The 

military judge decided to break down the alleged misconduct 

 

14 *Id. at 680.

15 *Id. 

16 *Id. at 696.

17 *Id. at 757.
7

further on the final findings worksheet, stating that “the safe 

course of action here which will best preserve the appellate 

record . . . is to break down all of the offenses alleged in the 

Charge.”18 The military judge then recalled the members and 

instructed them on the new findings worksheet. 

The final findings worksheet allowed the members to specify 

any guilty findings for each offense for conduct that occurred 

“before the cigarette,” “after the cigarette,” or “before and 

after the cigarette.”19 The members found the appellant guilty 

of both the aggravated sexual assault and indecent act “after 

the cigarette.”20

B. Discussion

 The predicate legal issue in this AOE is whether the 

appellant’s rehearing violated double jeopardy principles. 

The Double Jeopardy Clause of the U.S. Constitution is directed 

at the threat of multiple prosecutions or sentences for the same 

offense. It does not matter whether the accused was acquitted 

or convicted of that offense in the prior trial. United States 

v. Leak, 61 M.J. 234, 242-43 (C.A.A.F. 2005). “The underlying 

idea . . . is that the State . . . should not be allowed to make 

repeated attempts to convict an individual for an alleged 

offense, thereby subjecting him to embarrassment, expense and 

ordeal and compelling him to live in a continuing state of 

anxiety and insecurity . . . .” Green v. United States, 355 

U.S. 184, 187-88 (1957). 

This concept is also applied to military personnel through 

Article 44(a), UCMJ, which provides: “No person may, without his 

consent, be tried a second time for the same offense.” RULE FOR 

COURTS-MARTIAL 907(b)(2)(C), MANUAL FOR COURTS-MARTIAL, UNITED STATES

(2012 ed.) also provides: “A charge or specification shall be 

dismissed upon motion made by the accused before the final 

adjournment of the court-martial in that case if . . . [t]he 

accused has previously been tried by court-martial . . . for the 

same offense . . . .” “However, these rights may be waived, 

since RCM 907(b)(2) is designated as ‘[w]aivable grounds.’” 

United States v. Collins, 41 M.J. 428, 429 (C.A.A.F. 1995).

 

18 *Id. at 781.

19 *AE LVIII

20 *Id.
8

Waiver is the “intentional relinquishment or abandonment of 

a known right,” which precludes appellate review of an issue; 

forfeiture is “the failure to make the timely assertion of a 

right” leading to plain error review on appeal. United States 

v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (quoting United 

States v. Olano, 507 U.S. 725, 733 (1993)) (internal quotation 

marks omitted). The record reveals no indication that the 

appellant ever knowingly, voluntarily, and intelligently waived 

a double jeopardy claim. However, at his rehearing, the 

appellant failed to raise a former jeopardy claim based on the 

military judge’s finding of not guilty to the words “on divers 

occasions” at his first court-martial.21 

Our superior court has recognized a “general rule” that, 

absent “unusual circumstances,” “a claim of former jeopardy must 

be raised before the conclusion of the trial or it is waived.” 

United States v. Schilling, 22 C.M.R. 272, 273 (C.M.A. 1957)

(citation omitted); see also Unites States v. Britton, 47 M.J. 

195, 198 (C.A.A.F. 1997) (“Double jeopardy claims are waived if 

not raised at trial.”) (citations omitted), overruled on other 

grounds by United States v. Miller, 67 M.J. 385, 389 (C.A.A.F. 

2009); United States v. Lloyd, 46 M.J. 19, 21 (C.A.A.F. 1997) 

(finding “constitutional and statutory protections against 

double jeopardy may be waived passively, i.e., forfeited by 

failure to make a timely objection”) (citations omitted). Other 

courts have similarly found waiver or forfeiture when a 

defendant failed to raise a double jeopardy claim. See United 

States v. Lewis, 492 F.3d 1219, 1223 (11th Cir. 2007) (holding 

“that a defendant who simply failed to raise a double jeopardy 

claim before the district court, and took no affirmative steps 

to voluntarily relinquish the claim, forfeited that claim” and 

reviewed for plain error); United States v. Whitfield, 590 F.3d 

325, 370 (5th Cir. 2009) (stating “[t]he Supreme Court has made 

it clear that failure to raise a double jeopardy defense in the 

trial court constitutes a waiver thereof”) (citing Peretz v. 

United States, 501 U.S. 923 (1991)). 

The appellant had full opportunity to raise an ambiguous 

verdict claim during his first court-martial appeal. 

Additionally, the appellant could have raised a double jeopardy 

claim, based upon an ambiguous verdict at the first courtmartial, prior to his rehearing. In both instances, the 

appellant failed to make such an assertion. Applying the 

court’s rationale in Lloyd and Lewis, and recognizing the 

 

21 We also note that the appellant failed to raise such a claim in his appeal 

of the first court-martial.
9

appellant did not affirmatively waive this issue, we now test 

for plain error. To show plain error, the appellant must 

persuade this court that: “‘(1) there was error; (2) the error 

was plain or obvious; and (3) the error materially prejudiced a 

substantial right of the accused.’” United States v. Tunstall, 

72 M.J. 191, 193-94 (C.A.A.F. 2013) (quoting United States v. 

Girouard, 70 M.J. 5, 11 (C.A.A.F. 2011)). 

We find no plain error in this case. At the appellant’s

first court-martial, the military judge found the appellant “not 

guilty” of the words “on divers occasions” for three 

specifications while considering the defense motion alleging 

multiplicity and an unreasonable multiplication of charges. The 

judge then advised the members that the appellant could only be 

found guilty of violating each specification on “one occasion.” 

While not speculating on the military judge’s motivation to

address the defense’s multiplicity/UMC contention in this

unusual fashion, we do note that the alleged conduct took place 

on the same date, over a matter of hours, with arguably the same 

continuing intent. See R.C.M. 307(c)(4) (“What is substantially 

one transaction should not be made the basis for an unreasonable

multiplication of charges against one person.”); United States 

v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001). The members’ 

findings specifically evince that they found the appellant 

guilty of a single aggravated sexual assault and a single act of 

indecent conduct, both occurring “after the cigarette.”22 Given 

these circumstances, we are convinced that the military judge at

the appellant’s rehearing did not plainly err in failing to sua

sponte conclude that the findings from the appellant’s first

court-martial, findings which we set aside on other grounds,

were ambiguous and therefore the rehearing violated double

jeopardy prohibitions. 

C. Alleged Ambiguous Findings at the Rehearing

The appellant further alleges on appeal that there were two 

occasions of potential aggravated sexual assault and indecent 

conduct committed “after the cigarette”: (1) before the 

appellant attempted penile penetration, and (2) after the 

attempted penile penetration. He thus argues that since the 

members found him guilty of conduct “after the cigarette,” their 

verdict is ambiguous because there were two separate occasions 

of aggravated sexual assault and indecent conduct “after the 

cigarette.” 

 

22 *AE LVIII.
10

However, we find these episodes were a part of the same 

ongoing sexual offenses charged in the specifications under the 

charge. The testimony adduced at trial showed the appellant 

engaged in one continuing course of conduct after the cigarette, 

despite his alleged penetration attempt.23 

III. Challenge for Cause

The appellant next argues that the military judge abused 

his discretion by denying the defense challenge for cause 

against LT S.

During voir dire, LT S disclosed he was raped by a 14-yearold boy when he was 4 years old.24 He stated that his prior 

childhood experiences would not impact his ability to be a fair 

and impartial member in the case, even if any evidence presented 

involved child sexual abuse.25 

He also stated he thought “consuming alcohol to the point 

of intoxication . . . removes your ability to consent” and that 

someone legally unable to operate a motor vehicle would be 

legally incapable of consenting to a sexual act.26 Upon further 

questioning by trial defense counsel, LT S clarified that he 

believed whether someone’s having sexual intercourse with an 

intoxicated person was a crime “would entirely depend on all the 

facts” and “[t]he simple acts of sex occurring between two 

people that have been drinking, perhaps to the point of 

intoxication, no, I don’t think that that in and of itself makes 

it a crime.”27 He later said that he stood by his clarifying 

answer.28 Finally, he spoke about his father’s physical abuse of 

his mother and his wife’s physical abuse by a former husband.29 

 

23 The appellant was acquitted of the alleged penile penetration at his 

original trial.

24 Record at 479.

25 Id. at 484.

26 Id. at 480-81.

27 Id. at 481.

28 Id. at 483.

29 Id. at 476, 478. With regard to his father’s domestic abuse, LT S stated 

it happened at least 27 years earlier, that his parents divorced when he was 

four and that his father has been sober for more than 20 years. LT S also 

stated that he maintains a good relationship with both his parents. 
11

The defense challenged LT S for cause, citing implied bias 

based solely on LT S being a prior victim of a sexual assault.30 

Referencing the liberal grant mandate and finding no implied 

bias, the military judge denied the defense’s challenge of LT 

S.31 

The military judge found LT S was “completely candid and 

forthright,” could not remember many details regarding the 

sexual assault when he was four years old, had received therapy, 

did not participate in the assailant’s trial, stated he 

“harbor[ed] no resentment,” and “said that period of his life 

has passed.”32 The military judge further found that the mere 

fact that an assault was part of his history “in and of itself 

does not give me pause for concern or an ability to find implied 

bias, particularly given [LT S’s] candor and demeanor before the 

court.”33 

A court member must be excused for cause whenever it 

appears that the member “[s]hould not sit as a member in the 

interest of having the court-martial free from substantial doubt 

as to legality, fairness, and impartiality.” R.C.M.

912(f)(1)(N). “R.C.M. 912 encompasses challenges based upon 

both actual bias and implied bias.” United States v. Townsend, 

65 M.J. 460, 463 (C.A.A.F. 2008) (citations omitted).

The standard of review for implied bias is “less 

deferential than abuse of discretion, but more deferential than 

de novo review.” United States v. Moreno, 63 M.J. 129, 134 

(C.A.A.F. 2006). However, military judges who place their 

reasoning on the record and consider the liberal grant mandate 

will receive more deference on review. United States v. Clay, 

64 M.J. 274, 277 (C.A.A.F. 2007). Here, the military judge 

recognized and applied the liberal grant mandate and articulated 

his analysis on the record, and his ruling will therefore be 

given greater deference.

 

Regarding his wife’s former abusive relationship, LT S said that his wife did 

not harbor “any kind of lingering victim mentality.”

30 Id. at 586.

31 Id. at 587-88. The military judge granted two of four challenges for cause 

by the trial defense counsel.

32 Id.

33 Id. at 588.
12

The test for implied bias is objective. Viewing the 

situation through the eyes of the public and focusing on the 

perception of fairness in the military justice system, we ask 

whether there is too high a risk that the public will perceive 

that the accused received less than a court composed of fair and 

impartial members. United States v. Wiesen, 56 M.J. 172, 176 

(C.A.A.F. 2001). Notwithstanding a member’s disclaimer of bias, 

there is implied bias when “most people in the same position 

would be prejudiced.” United States v. Napolitano, 53 M.J. 162, 

167 (C.A.A.F. 2000) (citation and internal quotation marks 

omitted). “Challenges for actual or implied bias are evaluated 

based on a totality of the circumstances.” United States v. 

Richardson, 61 M.J. 113, 118 (C.A.A.F. 2005) (citing United 

States v. Strand, 59 M.J. 455, 459 (C.A.A.F. 2004)).

“There is no per se rule that a panel member must be 

excused because he or she has been the victim of a similar 

crime.” United States v. Castillo, 74 M.J. 39, *7 (C.A.A.F. 

2015) (citing United States v. Smart, 21 M.J. 15, 19 (C.M.A. 

1985)). A panel member's experience as a victim of a crime 

similar in theme or close in time to the charged offense may, in 

some cases, present an issue of implied bias. United States v. 

Daulton, 45 M.J. 212, 217 (C.A.A.F. 1996). Here, we find no 

such issue.

LT S unequivocally stated that his prior childhood 

experiences would not impact his ability to be a fair and 

impartial member in the case, even if any evidence presented 

involved child sexual abuse.34 Regarding his prior sexual 

assault, he candidly said, “Looking back on it, he was a 14-

year-old boy with raging hormones. . . . I’ve had a lot of time 

to kind of deal with it and get over it . . . I don’t harbor any 

kind of resentment or anger. It’s a period of my life, though, 

that just happened.”35

We conclude that, viewed objectively, a member of the 

public would not question the fairness of LT S sitting as a 

panel member. Considering the totality of the circumstances, we 

find that the public would perceive this panel to be fair and 

impartial and conclude that the military judge did not err in 

denying the defense’s challenge against LT S based on implied 

bias.

 

34 Id. at 484.

35 Id. at 480.
13

IV. Unlawful Command Influence

We address the appellant’s third and fourth AOEs concerning 

unlawful command influence (UCI) together. The appellant’s 

third AOE avers that the military judge abused his discretion by 

failing to declare a mistrial after a witness changed portions 

of his testimony from the first court-martial. The witness 

revealed that his commanding officer and senior enlisted leader 

counseled him following his favorable testimony for the 

appellant. The appellant’s fourth AOE states the military judge 

erred in finding no apparent UCI when the Navy’s most senior 

leaders have widely publicized their preferred outcomes for 

sexual assault cases.

A. Law

The defense has the burden of raising the issue of UCI. 

United States v. Reed, 65 M.J. 487, 488 (C.A.A.F. 2008) (citing 

United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999)). On 

appeal, the defense must present “some evidence” of unlawful 

command influence, showing (1) “facts which, if true, constitute 

unlawful command influence,” (2) “the proceedings were unfair,” 

and (3) “unlawful command influence was the cause of the 

unfairness.” Biagase, 50 M.J. at 150 (citations and internal 

quotation marks omitted). “[O]nce the issue of unlawful command 

influence is raised, the Government must prove beyond a 

reasonable doubt: (1) that the predicate facts do not exist; or 

(2) that the facts do not constitute unlawful command influence; 

or (3) that the unlawful command influence did not affect the 

findings and sentence.” Id. at 151. 

“Where the issue of unlawful command influence is litigated 

on the record, the military judge’s findings of fact are 

reviewed under a clearly-erroneous standard, but the question of 

command influence flowing from those facts is a question of law 

that [the] Court reviews de novo.” Reed, 65 M.J. at 488 

(C.A.A.F. 2008) (quoting United States v. Wallace, 39 M.J. 284, 

286 (C.M.A. 1994)). The military judge’s remedies for unlawful 

command influence are reviewed for an abuse of discretion. 

United States v. Douglas, 68 M.J. 349, 354 (C.A.A.F. 2010).

We look favorably upon a military judge’s “proactive, 

curative steps to remove the taint of unlawful command influence 

and ensure a fair trial.” Id. (citation omitted). Dismissal 

“is a drastic remedy and courts must look to see whether 

alternative remedies are available.” United States v. Gore, 60 

M.J. 178, 187 (C.A.A.F. 2004) (citations omitted). “When an 
14

error can be rendered harmless, dismissal is not an appropriate 

remedy.” Id. (citation omitted).

B. Chief F’s Testimony

Chief F testified as a defense witness on the merits and on 

sentencing in both of the appellant’s trials. In both trials, 

Chief F presented good military character evidence on the 

merits.36 In sentencing at the appellant’s rehearing, Chief F 

stated he would work with the appellant “any day” “[o]utside of 

the Navy”37; whereas, in the appellant’s original trial, Chief F 

testified that he would work with the appellant again in the 

Navy “in a heartbeat.”38

Chief F testified that his sentencing testimony had changed 

because Chief F’s senior enlisted leader and commanding officer 

counseled him shortly after his testimony in the appellant’s 

first trial that “a convicted sex offender is not in the value 

of the U.S. Navy” and he was an “inexperienced chief” for 

testifying otherwise.39 Chief F further testified that he 

believed his career would be negatively impacted if he had not 

changed his testimony at the rehearing.40 Trial defense counsel 

raised a UCI motion at that time and requested dismissal of the 

charges with prejudice.41 

The military judge, finding “no indication that [Chief F’s] 

command . . . had any idea that he was going to testify again,” 

found no actual UCI, but held there was apparent UCI.42 

Additionally, the military judge found there was no “evidence it 

affected the merits.”43 The military judge determined that an 

appropriate remedy could be crafted since Chief F had testified 

 

36 *Record at 660-67. Record at 1039-53.

37 Record at 1178.

38 *Record at 820-22.

 

39 Record at 1191-93. The appellant’s father, a retired master chief petty 

officer, had contacted the appellant’s command and about Chief F’s support 

for the appellant. 

40 Id. at 1196.

41 Id. at 1207.

42 Id. at 1212-13.

43 Id. at 1213.
15

previously.44 He gave the defense two options: put Chief F back

on the witness stand to supplement his prior testimony or give 

the members a transcript of his prior testimony and an 

appropriate instruction.45 The defense chose the latter option.46 

Prior to the sentencing arguments, the military judge instructed 

the members:

At the previous trial, Chief [F], who testified 

on behalf of [the appellant], he testified at the 

first trial, as well as testifying here. After his 

testimony here, the court learned his previous 

testimony at the first trial had been even more 

supportive than it was here at this trial. The court 

also learned that . . . after his testimony at the 

first trial, he was counseled by senior leadership at 

his command for being too supportive. That is beyond 

inappropriate. That is what we call unlawful command 

influence, and how or if that behavior is dealt with 

externally is beyond our purview.

What is within our purview, however, is the 

mandate that Petty Officer Oakley receive an 

absolutely fair trial and sentencing hearing, so to 

that end, I am going to provide each of you with a 

copy of Chief [F]’s prior testimony from the last 

trial, and I’m going to direct that each of you read 

it prior to beginning any deliberations today on a 

fair sentence. You will take that back with you.

Do you all understand that and agree that you 

will read that in its entirety before beginning any 

discussions or deliberations on sentence? If that’s 

accurate, please raise your right hand.47

The members responded in the affirmative.48 

In his sentencing instructions, the military judge 

stated:

 

44 Id. 

45 Id. at 1213.

46 Id. at 1215.

47 Id. at 1225

48 Id.
16

. . . but for conduct that constituted unlawful 

command influence, a defense witness would have 

provided more favorable testimony during presentencing 

proceedings, specifically testimony that the accused 

should be retained in the Navy. You should consider 

the witness’ testimony, Chief [F], that the accused be 

retained in the Navy during your sentencing 

deliberations.

Additionally, you may infer that the United 

States, represented in this court-martial by the 

prosecution, is responsible for that unlawful command 

influence. As I told you at the outset of the courtmartial, no person may unlawfully influence this 

proceeding or any other military-justice proceeding. 

In reaching your sentence in this case, you may, in 

your discretion, provide the accused relief in the 

form of a less-severe sentence because of this 

unlawful command influence.49

Chief F’s prior testimony was marked as an appellate exhibit and 

given to the members to consider during sentencing.50 

Here, the military judge appropriately found apparent UCI

as it related to Chief F’s testimony during presentencing 

proceedings. Like the military judge, we find no evidence on 

the record that Chief F’s testimony on the merits was impacted 

by UCI.51 As such, the military judge crafted an appropriate 

remedy of providing the members with Chief F’s prior testimony, 

attributing the UCI to the Government, and telling the members 

they could grant relief in sentencing as a result. 

The defense asks us to compare this case to that of United 

States v. Gore, 60 M.J. 178 (C.A.A.F. 2004), where a commanding 

officer prevented a chief from testifying and other potential 

defense witnesses from providing good character evidence on 

behalf of Gore at his pending court-martial, thus justifying a 

full dismissal of the charges against the appellant. However, 

Gore is inapposite. Unlike in that case, Chief F was not 

prevented from testifying and still testified very positively on 

 

49 Id. at 1245-46.

50 AE LXXXVI.

51 The trial defense counsel conceded there was no evidence of UCI concerning

Chief F on the merits. Record at 1207. 
17

the appellant’s behalf as he had at the first court-martial. 

Moreover, the military judge provided a transcript of Chief F’s 

testimony from the original court-martial and highlighted the 

changes in his testimony to the members while clearly 

instructing them as to how they must view that change in 

testimony. Accordingly, under the circumstances of this case, 

we conclude that the military judge did not abuse his discretion 

in the remedies he provided the appellant. 

C. Statements from Military Leaders

Prior to trial, the trial defense counsel argued a UCI

motion which focused on the media attention surrounding comments 

made by military leaders concerning sexual assault.52 The 

military judge found the defense presented “some evidence” of 

unlawful command influence due to the “significant and vocal 

attention” surrounding sexual assaults in the military context.53 

However, the military judge did not find either actual or 

apparent UCI because the “prevailing theme of the comments is to 

remind subordinate leaders of the importance of holding their 

subordinates appropriately accountable for their actions.”54 At 

trial, the military judge allowed liberal voir dire and read the 

memorandum from the Secretary of Defense dated August 6, 2013 to 

the members.55 

With regard to senior military leaders’ comments on sexual 

assault cases in the military context, the defense failed to 

present any evidence creating a nexus between the appellant’s 

trial and those statements. Upon the military judge’s 

questioning, all of the members affirmatively responded when 

asked whether they could consider the full range of punishments, 

including no punishment.56 Assuming arguendo the defense 

presented enough evidence to shift the burden to the Government, 

the military judge’s curative actions of liberal voir dire and 

reading the Secretary of Defense’s memorandum were adequate and 

appropriate. 

 

52 AE XI.

53 AE LV at 4.

54 Id. at 4-5.

55 Record at 404-06.

56 Id. at 420.
18

We hold that the Government has met its burden of 

demonstrating beyond a reasonable doubt that the fairness of the 

court-martial proceedings was not compromised by UCI. See 

United States v. Simpson, 58 M.J. 368, 376 (C.A.A.F. 2003).

V. Motion to Suppress the Appellant’s NCIS Statements

The appellant’s fifth AOE avers that the military judge 

erred in admitting the appellant’s statements to NCIS because 

the NCIS agent failed to adequately inform the appellant of the 

allegations against him before the appellant waived his Article 

31(b), UCMJ, rights. We hold that the military judge did not 

abuse his discretion in admitting the appellant’s NCIS 

statements.

During the appellant’s NCIS interrogation, Special Agent 

(SA) Y asked the appellant if he knew why he was there.57 The 

appellant responded that he did not. SA Y then stated that an 

event took place at his father’s house that was subsequently 

reported.58 When the appellant still seemed confused, SA Y 

presented him with an Article 31(b) waiver identifying the 

suspected crime as “indecent assault” under Article 134, UCMJ.59 

The appellant replied that he understood what indecent assault 

was.60 SA Y further stated that an incident occurred between the 

appellant and his stepsister at a family gathering on April 29.61 

The appellant asked, “What happened?”62 SA Y replied, “Would you 

like to talk to us?”63 The appellant then said he wanted to know 

what was “going on” and agreed to waive his rights. Shortly 

thereafter, SA Y said they had information that he may have had 

a “sexual interaction with [his] stepsister.”64 

The trial defense counsel moved to suppress the appellant’s 

statements made after this rights waiver. The military judge 

denied this motion, finding the appellant understood the rights 

 

57 PE 6 at 08:35.

58 Id. at 08:36.

59 PE 7.

60 PE 6 at 08:37. 

61 Id. at 8:38.

62 Id. 

63 Id. 

64 Id. at 08:40.
19

advisement.65 The military judge also found the advisement of 

“indecent assault,” although outdated at the time of the 

interview, was adequate to identify “an offensive touching of a 

sexual nature.”66 He further found that SA Y “was not trying to 

avoid the sexual nature of the suspected offense,” but “simply 

failed in her attempt to use the most precise UCMJ article to 

describe the allegation.67

A military judge’s ruling on a motion to suppress is 

reviewed for an abuse of discretion. United States v. Young, 49 

M.J. 265, 266-67 (C.A.A.F. 1998). However, we review whether a 

rights advisement is consistent with applicable rights warning 

requirements de novo. United States v. Simpson, 54 M.J. 281, 

284 (C.A.A.F. 2000). A suspect does not have to be advised of 

every possible charge under investigation or the most serious or 

any lesser-included charges being investigated. Id. 

“Nevertheless, the accused or suspect must be informed of the 

general nature of the allegation, to include the area of 

suspicion that focuses the person toward the circumstances 

surrounding the event.” Id. (citations omitted).

In this case, SA Y verbally warned the appellant that he 

was being questioned about indecent assault on his stepsister at 

a family gathering on 29 April 2011. The charged crimes 

concerned a continuous sequence of indecent acts within a day of 

the date supplied by the warnings. See id. (finding factors of 

adequate rights’ warnings include “whether the conduct is part 

of a continuous sequence of events” and “within the frame of 

reference supplied by the warnings”) (citations omitted)). 

Under the circumstances, we find that the Article 31(b) warnings 

sufficiently oriented the appellant to the nature of the 

accusations against him and that the military judge did not 

abuse his discretion in denying the defense motion to suppress. 

See id.

 

VI. Evidence of Similar Crimes

The appellant next argues the military judge erred by 

admitting evidence that the appellant previously sexually 

assaulted CS3 FC when they were both children. He states that 

this evidence lacks relevance to a fact in issue, or, if 

 

65 AE LIV.

66 Id. at 5.

67 Id. at 5-6.
20

relevant, any probative value was far outweighed by unfair 

prejudice. 

At trial, the military judge allowed CS3 FC’s testimony 

that, when she was ten years old and the appellant was twelve, 

she awoke in the middle of the night to the appellant lying on 

top of her, her shorts pulled to the side, and the appellant 

trying to penetrate her vagina with his penis.68 Speaking of the 

same incident, the appellant told NCIS that he was sleepwalking 

and awoke to find himself with his pants off and on top of CS3 

FC while she was in bed.69 The military judge admitted this 

evidence under MILITARY RULES OF EVIDENCE 404(b) and 413, MANUAL FOR 

COURTS-MARTIAL, UNITED STATES (2012 ed.), finding the evidence showed 

a specific sexual intent, an ongoing sexual interest in CS3 FC, 

and that the appellant did not mistake her identity at the time 

of the sexual behavior on 30 April 2011.70 

We review “a military judge’s decision to admit evidence 

for an abuse of discretion.” United States v. Solomon, 72 M.J. 

176, 179 (C.A.A.F. 2013) (citing United States v. Ediger, 68 

M.J. 243, 248 (C.A.A.F. 2010)). “‘The abuse of discretion 

standard is a strict one, calling for more than a mere 

difference of opinion. The challenged action must be arbitrary, 

fanciful, clearly unreasonable, or clearly erroneous.’” United 

States v. White, 69 M.J. 236, 239 (C.A.A.F. 2010) (quoting 

United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F. 2010)).

MIL. R. EVID. 413(a) provides, “In a court-martial in which 

the accused is charged with an offense of sexual assault, 

evidence of the accused’s commission of one or more offenses of 

sexual assault is admissible and may be considered for its 

bearing on any matter to which it is relevant.” “[I]nherent in 

M.R.E. 413 is a general presumption in favor of admission.” 

United States v. Berry, 61 M.J. 91, 95 (C.A.A.F. 2005) (citation 

omitted).

The “three threshold requirements for admitting evidence of 

similar offenses in sexual assault cases under M.R.E. 413 

[include]: (1) the accused must be charged with an offense of 

sexual assault; (2) the proffered evidence must be evidence of 

the accused’s commission of another offense of sexual assault; 

and (3) the evidence must be relevant under M.R.E. 401 and 

 

68 Record at 652.

69 PE 6 at 08:56.

70 AE XXXVIII.
21

M.R.E. 402.” Solomon, 72 M.J. at 179 (citations omitted). In 

order to meet the second requirement, the military judge must 

conclude that the members “could find by a preponderance of the 

evidence that the offenses occurred.” United States v. Wright, 

53 M.J. 476, 483 (C.A.A.F. 2000) (citing Huddleston v. United 

States, 485 U.S. 681, 689-90 (1988)).

Once the threshold requirements are met, “the military 

judge is constitutionally required to also apply a balancing 

test under M.R.E. 403.” Solomon, 72 M.J. at 179-80 (citing 

Berry, 61 M.J. at 95). In conducting the MIL. R. EVID. 403 

balancing test, “the military judge should consider the 

following non-exhaustive factors”: 

strength of proof of the prior act (i.e., conviction 

versus gossip); probative weight of the evidence; 

potential for less prejudicial evidence; distraction 

of the factfinder; time needed for proof of the prior 

conduct; temporal proximity; frequency of the acts; 

presence or lack of intervening circumstances; and the 

relationship between the parties. 

Id. at 180 (citation omitted). “When a military judge 

articulates his properly conducted M.R.E. 403 balancing test on 

the record, the decision will not be overturned absent a clear 

abuse of discretion.” Id. (citing United States v. Manns, 54 

M.J. 164, 166 (C.A.A.F. 2000)).

In this case, the appellant was charged with aggravated 

sexual assault. The Government proffered evidence of the 

appellant’s commission of another offense of sexual assault, 

specifically attempted aggravated sexual contact or assault.71 

The military judge found that, considering the expected 

testimony of CS3 FC and the appellant’s admissions concerning 

the incident, there was sufficient evidence to meet the required 

preponderance standard.72 The military judge properly performed 

a MIL. R. EVID. 403 analysis, considering the nine non-exhaustive 

factors outlined above.73 

CS3 FC’s testimony along with the appellant’s admission is 

strong evidence of the prior act. Although the appellant told 

 

71 AE VII, Enclosure (A). 

72 AE XXXVIII.

73 Id.
22

NCIS that he was sleepwalking at the time, the members could 

find by a preponderance of the evidence that the appellant 

intentionally committed those acts. In addition, the evidence 

is highly probative. The prior alleged offense and its setting 

was strikingly similar to those of the charged offense, where 

CS3 FC testified that the appellant moved her shorts and 

underwear to the side and penetrated her vagina with his fingers 

and tongue while CS3 FC was sleeping. In fact, both sexual 

assaults involved FC sleeping at the time of the assault, the 

appellant moving her underwear and shorts to expose her vagina, 

and the appellant attempting, or succeeding, to penetrate her 

vagina. The persons involved and their step-sibling 

relationship remained the same on both occasions, despite their 

age difference.

 

The two factors that favor exclusion included the ten-year 

gap between the events and the lack of frequency of the prior 

actions. However, the other factors weighed substantially in 

favor of admission of the prior act. 

The military judge found there was no less prejudicial 

evidence of the appellant’s sexual interest in CS3 FC. He 

considered the less prejudicial evidence of CS3 FC’s testimony 

that the appellant would frequently look into her bedroom 

window; however, the military judge found there was “no 

reasonable inference those acts, by themselves, were motivated 

by a sexual interest” in CS3 FC.74 

 

The length of time necessary to present these issues was 

minimal because the evidence was presented through CS3 FC, who 

was already testifying, and the appellant’s NCIS statement. No 

other witnesses needed to be presented. The potential for 

distraction was low because the fact finder had to consider the 

appellant’s specific sexual intent as part of the charged 

offense. Finally, the military judge properly instructed the 

members with regard to the use of this evidence.75 

The appellant, citing United States v. McDonald, 59 M.J. 

426, 430 (C.A.A.F. 2004), argues that, since there was no 

evidence of the appellant’s mental and emotional state at the 

time of the prior act, the court could not make a “meaningful 

comparison” with the appellant’s state of mind on the date of 

the charged sexual assault. However, McDonald, addresses 

 

74 Id. at 8.

75 Record at 1087-88.
23

whether uncharged acts the appellant allegedly committed over 

twenty years prior to trial when he was a child upon a person 

who was not the charged victim were admissible under MIL. R. EVID. 

404(b). 59 M.J. at 427. There, the Court of Appeals for the 

Armed Forces found that the evidence of the appellant molesting 

his stepsister, who was eight, when he was thirteen, was not 

admissible under MIL. R. EVID. 404(b) because there was no 

evidence that the appellant’s intent to molest his twelve-yearold adopted daughter when he was an adult was similar. Id. at 

430. Therefore, this case, concerning the same victim and a 

similar sexual assault, is notably distinguishable from 

McDonald. 

Accordingly, we find the military judge did not abuse his 

discretion in admitting this evidence under MIL. R. EVID. 413.76 

VII. Inconsistent Verdict

At the appellant’s rehearing, the military judge denied a 

defense motion to dismiss Specification 1 of the Charge due to 

issue preclusion and double jeopardy.77 The appellant’s final 

AOE avers that the military judge erred in this denial.

The Double Jeopardy Clause of the Constitution forbids 

a second trial for the purpose of affording the prosecution 

another opportunity to supply evidence which it failed to muster 

in the first proceeding. Consequently, a finding of 

insufficiency of evidence by either the trial court or an 

appellate court will bar a second trial on the issue. However, 

the Double Jeopardy Clause does not preclude retrial when a 

conviction is set aside because of procedural error in the 

proceedings leading to the conviction as occurred with the 

appellant’s original trial. See Burks v. United States, 437 

U.S. 1, 14 (1978); United States v. Scott, 437 U.S. 82, 90-91

(1978), and United States v. Tateo, 377 U.S. 463, 465 (1964). 

Additionally, Article 66(d), UCMJ, provides statutory authority 

for our Court to order a rehearing in such circumstances.78

 

76 Because we hold the military judge did not abuse his discretion in 

admitting this conduct under MIL. R. EVID. 413, we need not address whether 

this conduct is admissible under MIL. R. EVID. 404(b). See Berry, 61 M.J. at 

95; United States v. Bare, 65 M.J. 35, 37-38 (C.A.A.F. 2007).

77 AE III and Record at 220.

78 “If the Court of Criminal Appeals sets aside the findings and sentence, it 

may, except where the setting aside is based on lack of sufficient evidence 

in the record to support the findings, order a rehearing.” Art. 66(d), UCMJ.
24

Here, we set aside the findings and sentence of the 

appellant’s original trial due to instructional error. Oakley, 

2013 CCA LEXIS 245. We also authorized a rehearing. Id. at 

*26-27.

At the appellant’s rehearing, he was tried for and 

convicted of aggravated sexual assault and committing an 

indecent act, the identical offenses for which he was convicted 

at his original trial. However, at his original trial the 

appellant was also charged with, but acquitted of, wrongful 

sexual contact.79 In this AOE, the appellant asserts that his 

original conviction for aggravated sexual assault was 

inconsistent with his acquittal of wrongful sexual contact, and 

therefore precluded retrial for aggravated sexual assault. We 

disagree.

Throughout the appellant’s original trial the wrongful 

sexual contact specification was treated as a separate and nonlesser included offense of the aggravated sexual assault 

specification. The act alleged in the aggravated sexual assault 

specification was that the appellant penetrated CS3 FC’s 

“genital opening with his finger” while CS3 FC was 

“substantially incapable of declining participation in the 

sexual act.” The military judge instructed the members as 

follows:

For this offense, the term “sexual act” means the 

penetration, however slight, of the genital opening of 

another by a hand or finger, or by any object, with an 

intent to abuse, humiliate, harass or degrade any 

person, or to arouse or gratify the sexual desire of 

any person.

. . . .

The genital opening is the entrance to the vagina, 

which is the canal that connects the genital opening 

to the uterus.80

The act alleged in the wrongful sexual contact 

specification was that the appellant touched CS3 FC’s 

 

79 The specification reads as follows: “In that [the appellant], U.S. Navy, 

USS INGRAHAM, on active duty, did at [location], on divers occasions, on or 

about 30 April 2011, engage in sexual contact with [CS3 FC], to wit: touching 

her groin, and such sexual contact was without legal justification or lawful 

authorization and without the permission of [CS3 FC].”

80 *Record at 733-34.
25

groin. The military judge instructed the members as 

follows:

For this offense, the term “sexual contact” means the 

intentional touching, either directly or through the 

clothing, of the genitalia, anus, groin, breast, inner 

thigh or buttocks of another person with an intent to 

abuse, humiliate or degrade any person, or to arouse 

or gratify the sexual desire of any person.81

The military judge gave no definition of the word “groin.” 

The trial defense counsel did not object to the military 

judge’s instructions on these offenses, or to the findings 

worksheet that permitted the members to convict for both 

offenses. In short, we find these to be separate offenses and 

therefore conclude the appellant’s conviction for aggravated 

sexual assault was not inconsistent with his acquittal for 

wrongful sexual contact. 

Assuming arguendo that the member’s rendered an 

inconsistent verdict in the appellant’s first court-martial, 

“[a]n inconsistent verdict is not usually a cause for relief

. . . [t]he reason for the rule is that the court-martial may 

merely have given the accused ‘a break.’” United States v. 

Wilson, 13 M.J. 247, 251 n.4 (C.M.A. 1982) (citations omitted). 

Our court set aside the findings and sentence from the 

appellant’s first court-martial due to instructional error and 

authorized a rehearing. The Government retried the appellant 

solely on the offenses for which he was convicted at his 

original court-martial. The appellant cites to no relevant 

authority that prohibited his rehearing in these circumstances. 

Accordingly, we decline to grant the appellant relief on this 

AOE.

VIII. Court-Martial Order

Although not raised as an AOE, the promulgating order in 

this case does not accurately list Specification 1 under the 

sole Charge of which the appellant was convicted. General 

Court-Martial Order No. 01-14 dated 9 Jan 2014. As to 

Specification 1 of the Charge, the appellant was formerly 

acquitted of the words “on divers occasions” by the original 

military judge. However, the Order states that the appellant 

 

81 *Id. at 734.
26

was convicted of aggravated sexual assault “on divers 

occasions.” 

We test this error under a harmless-error standard. United 

States v. Crumpley, 49 M.J. 538, 539 (N.M.Ct.Crim.App. 1998). 

We are convinced that this scrivener’s error did not amount to 

plain error materially prejudicing the appellant’s substantial 

rights because no prejudice was alleged or is apparent. See id. 

However, the appellant is entitled to have his official record 

correctly reflect the results of his court-martial. See id. We 

therefore order corrective action in our decretal paragraph.

 

IX. Conclusion

Accordingly, we direct that the supplemental court-martial 

order remove the words “on divers occasions” from Specification 

1 of the sole Charge. The findings and the sentence as 

otherwise approved by the CA are affirmed. 

Chief Judge MITCHELL and Judge McDONALD concur.

For the Court

 

 

 

R.H. TROIDL

Clerk of Court