UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

J.R. MCFARLANE, M.C. HOLIFIELD, K.J. BRUBAKER

Appellate Military Judges

UNITED STATES OF AMERICA

v.

JEREMY D. LOTZ

HOSPITALMAN (E-3), U.S. NAVY

NMCCA 201400304

GENERAL COURT-MARTIAL

Sentence Adjudged: 22 May 2014.

Military Judge: CAPT Bethany Payton-O’Brien, JAGC, USN.

Convening Authority: Commander, Navy Region Northwest, 

Silverdale, WA.

Staff Judge Advocate's Recommendation: LCDR E.K. Westbrook, 

II, JAGC, USN.

For Appellant: Maj Jeffrey S. Stephens, USMCR.

For Appellee: CAPT Diane L. Karr, JAGC, USN; LCDR Keith B. 

Lofland, JAGC, USN.

10 February 2015

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OPINION OF THE COURT 

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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS 

PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

A military judge, sitting as a general court-martial, 

convicted the appellant, pursuant to his pleas, of one 

specification each of attempting to commit a lewd act upon a 

child, committing a sexual act upon a child, committing a lewd 

act upon a child, and committing sodomy with a child, in 

violation of Articles 80, 120b and 125, Uniform Code of Military 
2

Justice, 10 U.S.C. §§ 880, 920b and 925. The military judge 

sentenced the appellant to confinement for 114 months, reduction 

to pay grade E-1, total forfeitures, and a dishonorable 

discharge. The convening authority (CA) approved the sentence 

as adjudged and, except for that part of the sentence extending 

to a dishonorable discharge, ordered it executed. The pretrial 

agreement had no effect on the sentence.

The appellant asserts that his sentence is inappropriately 

severe given: the victim consented to the sexual conduct; the 

victim’s claim of suffering post-traumatic stress disorder 

(PTSD) was neither credible nor substantiated by any medical 

evidence; and, the appellant’s combat experience and purported 

good military character.

After carefully considering the record of trial and the 

submissions of the parties, we conclude that the findings and 

the sentence are correct in law and fact and that no error 

materially prejudicial to the substantial rights of the 

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

Background

The appellant, while aged 25, created an online persona 

claiming to be a 15-year-old boy. Upon making contact with a 

14-year-old girl, ML, the persona urged ML to contact the 

appellant via Facebook. This lead to two sexual encounters: one 

at ML’s grandparent’s home and another in the woods nearby. 

These meetings involved penile and digital penetration of ML’s 

vulva, touching of ML’s breasts, and sodomy. ML’s parents 

became aware of the sexual activity and reported it to local law 

enforcement. 

Subsequent to the appellant being interviewed by the local 

police regarding his activity with ML, he was contacted by a 

special agent of the Naval Criminal Investigative Service posing 

as a 14-year-old girl. In the ensuing exchange of text 

messages, the appellant described how they would have sex and 

encouraged the “girl” to send him images of herself, either nude 

or partially-clothed. 

Testifying at trial, ML described suffering from depression 

and PTSD as a result of her interactions with the appellant. 
3

She also described having nightmares and “episodes” in which she 

loses all sense of her environment, hyperventilates, and relives 

the sexual activity with the appellant. Record at 85-86. The 

defense’s sole challenge to ML’s claims was to have her admit 

the “episodes” began only after her mother discovered her 

relationship with the appellant, and that ML provided the condom 

used during the sexual intercourse. 

An expert for the defense testified the appellant suffers 

from attention deficit disorder and impulsivity, and, based on 

scientific studies, presents a low likelihood of recidivism. 

The appellant provided an unsworn statement describing a 

childhood in which he was sexually abused, bullied, and 

physically abused. He further described how he volunteered to 

be a combat medic with a Marine unit in Afghanistan, and how he 

earned the Combat Action Ribbon for his actions during a 

firefight with insurgents. The defense also submitted 

performance evaluations that document an otherwise unremarkable 

four years of service. 

Sentence Appropriateness 

In accordance with Article 66(c), UCMJ, a Court of Criminal 

Appeals “may affirm only such findings of guilty and the 

sentence or such part or amount of the sentence, as it finds 

correct in law and fact and determines, on the basis of the 

entire record, should be approved.” Sentence appropriateness 

involves the judicial function of assuring that justice is done 

and that the accused gets the punishment he deserves. United 

States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988). This requires 

“‘individualized consideration’ of the particular accused ‘on 

the basis of the nature and seriousness of the offense and 

character of the offender.’” United States v. Snelling, 14 M.J. 

267, 268 (C.M.A. 1982) (quoting United States v. Mamaluy, 27 

C.M.R. 176, 180-81 (C.M.A. 1959)). 

We review sentence appropriateness de novo. United States 

v. Baier, 60 M.J. 382, 384-85 (C.A.A.F. 2005); Healy, 26 M.J. at 

395-96; Snelling, 14 M.J. at 268. After a thorough review of 

the entire record, we find that the sentence is appropriate for 

this offender and his offenses. In addition to considering the 

serious nature of the specific offenses committed by the 
4

appellant, we have carefully considered his background, work 

performance and combat experience. We find all of these factors 

to be outweighed by the seriousness of his misconduct. 

We have also weighed ML’s role in the events and find ML’s 

apparent willingness to engage in the sexual activity is not a 

factor that militates toward a sentence lower than was imposed. 

Article 120b, UCMJ, makes punishable the commission of a sexual 

act upon a child over 12 years of age, with no requirement that 

force, threats, or other means for overcoming lack of consent be 

used. This strict liability (absent a reasonable mistake of 

fact as to the child’s age) acknowledges the impossibility of 

consent in such situations, placing the burden on the adult 

involved to refrain from sexual activity with the child. Also, 

we find that the appellant specifically targeted children, going 

so far as to create an on-line, teenaged persona to facilitate 

his connecting with young girls. And, despite knowing he was 

under investigation for criminal acts with a child, he attempted

to commit lewd acts with someone he believed was a 14-year-old 

girl. 

Finally, we disagree with the appellant’s assertion that 

ML’s claim of PTSD is “incredible on its face.” Appellant’s 

Brief of 10 Nov 2014 at 6. While the nightmares and episodes 

did not occur until after ML was confronted by her mother, ML 

testified that she was diagnosed with PTSD and depression by 

both a counselor and a doctor. The defense offered nothing to 

challenge this statement. Nor did they effectively discredit 

ML’s stepfather’s testimony describing, first-hand, one of ML’s 

“episodes.”

Considering the entire record, we conclude that granting 

sentence relief at this point would be to engage in clemency, a 

prerogative reserved for the CA, and we decline to do so. 

Healy, 26 M.J. at 395-96. 

Post-Trial Errors

We note the Results of Trial, incorporated in the Staff 

Judge Advocate’s Recommendation, fails to indicate that the 

excepted language in Specification 2 of Charge II and 

Specification 1 of Charge III was withdrawn and dismissed at 

trial. This error was compounded in the court-martial order 
5

(CMO), which appears to say the appellant was found guilty of 

these two specifications as charged. The appellant did not 

raise this as an assignment of error. There being neither 

claimed nor apparent prejudice, we find the error did not affect 

the appellant’s substantial rights. The appellant, however, is 

entitled to have the official records accurately reflect the 

results of his court-martial. United States v. Crumpley, 49 

M.J. 538, 539 (N.M.Ct.Crim.App. 1998). Accordingly, we will 

order the necessary corrective action in our decretal paragraph. 

Conclusion

The findings and the sentence as approved by the CA are 

affirmed. It is ordered that the supplemental CMO correctly 

reflect that the excepted language in Specification 2 of Charge 

II and Specification 1 of Charge III was withdrawn and 

dismissed.

 

For the Court

 

 

 

R.H. TROIDL

Clerk of Court