UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

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No. 201600122

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UNITED STATES OF AMERICA

Appellee

v.

BENJAMIN A. BULLARD

Corporal (E-4), U.S. Marine Corps

Appellant

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Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Major Michael D. Libretto, USMC.

For Appellant: Captain Bree A. Ermentrout, JAGC, USN.

For Appellee: Commander Jacob R. Walker, JAGC, USN; 

Lieutenant Jetti L. Gibson, JAGC, USN.

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Decided 22 September 2016

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Before MARKS, FULTON, and GLASER-ALLEN, Appellate Military 

Judges

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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.

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PER CURIAM:

A military judge sitting as a special court-martial convicted the appellant, 

pursuant to his pleas, of two specifications of battery upon a child under the 

age of 16 in violation of Article 128, Uniform Code of Military Justice 

(UCMJ), 10 U.S.C. § 928. The convening authority approved the sentence of 

60 days’ confinement, reduction to pay grade E-1, and a bad-conduct 

discharge but, pursuant to a pretrial agreement, suspended all confinement 

in excess of 30 days. 
United States v. Bullard, No. 201600122

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In his sole assignment of error, the appellant asserts the military judge 

improperly admitted uncharged misconduct per RULE FOR COURTS-MARTIAL

(R.C.M.) 1001(b)(4), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012

ed.) in the Government’s sentencing case. We disagree. 

I. BACKGROUND

Between 20 and 27 June 2015, the appellant and his wife babysat their 

five-year-old nephew. in their home aboard Marine Corps Air Station Cherry 

Point, North Carolina. During this time, the appellant struck his nephew

using his hands and a belt on multiple occasions. Though he knew his 

nephew was in pain, he continued to spank the child repeatedly and 

unlawfully grabbed his arm “to impose extreme pain, not to discipline him or 

protect him in any way.”1 The appellant pled guilty to these two offenses and 

admitted that the spanking caused bruising on his nephew’s lower back, 

buttocks, and legs. On 26 June 2015, the appellant’s on-base neighbors, 

Sergeant (Sgt) and Mrs. B., heard a child screaming and went across the 

street to the appellant’s home. While outside the house, Mrs. B. looked in the 

window and saw “a child running to the door, and then a man run across the 

room, pick the child up, and throw him against the door.”2 Sgt B. distinctly 

heard the child hit the door and start crying. Both Sgt and Mrs. B. signed 

affidavits describing what they saw and heard on this (uncharged) occasion.

II. ANALYSIS

During sentencing, the Government introduced Sgt and Mrs. Bs’ 

affidavits over defense objection. The appellant argues that the military 

judge abused his discretion by admitting this sentencing evidence of the 

appellant throwing his nephew against the wall under R.C.M. 1001(b)(4) 

because the evidence was not directly related to or resulting from the two 

offenses to which appellant pled guilty. 

We review a military judge’s decision to admit or exclude evidence for an 

abuse of discretion. United States v. McDonald, 59 M.J. 426, 430 (C.A.A.F.

2004) (citing United States v. Tanksley, 54 M.J. 169, 175 (C.A.A.F. 2000)). 

R.C.M. 1001(b)(4) provides that: “[t]he trial counsel may present evidence as 

to any aggravating circumstances directly relating to or resulting from the 

offenses of which the accused has been found guilty.” Additionally, “when

uncharged misconduct is part of a continuous course of conduct involving

similar crimes and the same victims, it is encompassed within the language

‘directly relating to or resulting from the offenses of which the accused has

been found guilty’ under R.C.M. 1001(b)(4).” United States v. Nourse, 55 M.J. 

 

1 Record at 20-25; see also Prosecution Exhibit (PE) 10.

2 PE 1 at 1.
United States v. Bullard, No. 201600122

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229, 232, (C.A.A.F. 2001). In Nourse, evidence of uncharged larcenies

involving the appellant from the same victim in the same place were 

admissible because they were directly related to the charged offenses as part 

of a continuing scheme to steal from the Orleans Parish Criminal Sheriff’s 

Office. Id. at 230-32; see also United States v. Ross, 34 M.J. 183, 187 (C.M.A. 

1992) (finding evidence that the appellant had altered test scores on 

occasions other than those for which he was convicted was admissible to show 

the “continuous nature of the charged conduct and its full impact on the 

military community”); United States v. Mullens, 29 M.J. 398, 400 (C.M.A. 

1990) (holding that evidence of uncharged indecent liberties the appellant

took with his children years prior to the charged misconduct at a prior duty 

station was admissible under R.C.M. 1001(b)(4) at sentencing for convictions 

of sodomy and indecent acts with his children).

Sentencing evidence is also subject to the MILITARY RULE OF EVIDENCE

403, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) balancing

test. United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000) (citing United 

States v. Rust, 41 M.J. 472, 478 (C.A.A.F. 1995)). If the military judge 

conducts a proper balancing test under MIL. R. EVID. 403, the “ruling will not 

be overturned unless there is a ‘clear abuse of discretion.’” Id. (quoting United 

States v. Ruppel, 49 M.J. 247, 250 (C.A.A.F. 1998)). Here, the military judge

conducted a MIL. R. EVID. 403 balancing test on the record and limited the 

application of the testimony. He admitted the affidavits, finding they 

provided context to the environment in which the offenses occurred, while 

noting that “the court is mindful that it is to sentence the accused based only 

upon the offenses to which he has been found guilty.”3

The uncharged throwing incident involved the same victim, occurred the 

same week, and was similar to the physically abusive conduct in the two pled 

battery offenses. The throwing incident was indicative of the continuous 

conduct of the appellant’s actions from 20-27 June 2015 and demonstrated 

the full impact of his actions on the Cherry Point military community. Like 

the events detailed in Nourse, Mullens, and Ross; here the uncharged 

misconduct of throwing his nephew against the wall was directly related to 

the arm-grabbing and belt discipline that the appellant had inflicted upon his 

nephew while the child was in appellant’s care earlier that week. 

Accordingly, we find the military judge did not abuse his discretion in 

admitting the aggravation evidence in sentencing. We conclude that the 

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

prejudicial to the substantial rights of appellant was committed. Arts. 59(a) 

and 66(c), UCMJ.

 

3 Record at 46.
United States v. Bullard, No. 201600122

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III. CONCLUSION

The findings and the sentence are affirmed. 

 For the Court

R.H. TROIDL

Clerk of Court