This opinion is subject to administrative correction before final disposition.

Before 

TANG, LAWRENCE, and STEPHENS

Appellate Military Judges

_________________________

UNITED STATES

Appellee

v.

Quentez M. PHILLIPS

Yeoman Third Class (E-4), U.S. Navy

Appellant

No. 201900082

Decided: 29 May 2020

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge:

Ann K. Minami

Sentence adjudged 20 November 2018 by a special court-martial convened at Naval Base Kitsap, Bremerton, Washington, consisting of 

officer members. Sentence approved by the convening authority: reduction to E-1, forfeiture of $1,092 per month for two months, confinement for two months, and a bad-conduct discharge.

For Appellant: 

Captain Valonne L. Ehrhardt, USMC

For Appellee:

Major Clayton L. Wiggins, USMC

Lieutenant Kimberly Rios, JAGC, USN

Judge STEPHENS delivered the opinion of the Court, in which Senior 

Judge TANG and Judge LAWRENCE joined.
United States v. Phillips, NMCCA No. 201900082

Opinion of the Court

2

_________________________

This opinion does not serve as binding precedent, but 

may be cited as persuasive authority under NMCCA

Rule of Appellate Procedure 30.2.

_________________________

STEPHENS, Judge:

Appellant was charged with a specification of indecent viewing and a 

specification of indecent recording under Article 120c, Uniform Code of 

Military Justice [UCMJ], 10 U.S.C. § 920c (2012). He was acquitted of the 

indecent viewing. He was also acquitted of the indecent recording, but found 

guilty, contrary to his plea, of the lesser included offense of attempted 

indecent recording, in violation of Article 80, UCMJ. 

Appellant raises three assignments of error [AOEs]: (1) the evidence is

legally and factually insufficient; (2) the military judge abused her discretion 

by allowing the trial counsel [TC] to refer to evidence during pre-sentencing 

of misconduct for which Appellant was acquitted; and (3) the bad-conduct 

discharge was an inappropriately severe sentence. We find that even if the

military judge abused her discretion in allowing the trial counsel to make 

improper arguments during pre-sentencing and failing to give the members a 

sufficient curative instruction that this error was not materially prejudicial to 

Appellant’s substantial rights. Concluding that the conviction is legally and 

factually sufficient and the sentence is not inappropriate, we affirm the 

findings and sentence as adjudged.

I. BACKGROUND

Special Agent [SA] Whiskey1 was the Naval Criminal Investigative Service [NCIS] special agent afloat for the USS NIMITZ (CVN-68). In July 2017, 

she received a call from the ship’s Command Manager for Equal Opportunity. 

There was a complaint about a male Sailor—Appellant—allegedly “peeking”2

at another Sailor in one of the men’s heads. She began her investigation by 

interviewing two Sailors. Interior Communications Electrician Second Class 

 

1 Throughout this opinion, we use pseudonyms to refer to Special Agent Whiskey,

IC2 Victor, EM2 Delta, and AN Sierra.

2 Record at 244.
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[IC2] Victor said he saw Appellant peeking at Electrician’s Mate Second 

Class [EM2] Delta through chest-high dime-sized holes in a bulkhead 

partition while he showered. SA Whiskey also interviewed EM2 Delta. 

When SA Whiskey interviewed Appellant, he admitted he was in that 

head at the alleged time. But he explained he had a hole in his shower caddy, 

which often caused his shaving and grooming equipment to fall onto the floor.

Appellant told SA Whiskey he would look on the floor for his items when they 

fell, including in the shower. She took pictures of the scene and submitted her 

report to the command. At trial, SA Whiskey testified that “the investigation 

was closed after [Appellant] was counseled on proper bathroom etiquette.”3

About four months later, in November 2017, a squadron Sailor, Airman 

[AN] Sierra, was showering in a different head aboard the ship. When he was 

rinsing off, he saw a cellphone camera just inside the shower curtain at about 

waist level, causing him to yell, “[W]hat the f[***]?”4 As he opened the shower 

curtain, he saw the fully-clothed Appellant—whom he did not know—quickly 

enter another shower stall and turn the water on with the nozzle aimed away 

from him. AN Sierra finished his shower and waited for a few minutes. He 

then saw Appellant leave the shower stall and exit the head as he looked in 

his direction. Appellant was in complete shipboard uniform from coveralls to 

boots, was not wet, and did not have a towel, soap, or a shaving kit. AN 

Sierra told his chain of command and eventually went to see SA Whiskey. 

SA Whiskey had AN Sierra try to identify Appellant using a photographic 

array. He got a good look at Appellant and was able to provide SA Whiskey a 

description. SA Whiskey obtained photographs from the ship’s media 

department of Sailors matching Appellant’s description. But Appellant’s 

photo was not actually among the first photographs, and AN Sierra was 

unable to identify any of them as the suspect. However, AN Sierra had seen 

Appellant elsewhere in the ship and told SA Whiskey that he had seen him in 

a “green supply jersey.”5 This made SA Whiskey think of Appellant. She told 

her NCIS co-worker, “Hey, I think I know exactly who he’s talking about. I 

just saw [Appellant], who I had another investigation with, in a green jersey 

and in the mess decks.”6 When AN Sierra looked at a new photographic 

 

3 Id. at 248.

4 Id. at 291, 307-08.

5 Id. at 257.

6 Id.
United States v. Phillips, NMCCA No. 201900082

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array—this time with a picture of Appellant—he “immediately”7 identified

him.

At trial, Appellant was charged with two specifications of violating Article 

120c, UCMJ.8 The first specification alleged an indecent viewing of EM2 

Delta back in July 2017—the incident which, apparently, had previously 

resulted in some kind of counseling. The second specification was for the 

November 2017 incident. During the findings portion of the trial, SA Whiskey

testified about her investigation into the July 2017 incident, including her 

belief that it had resulted in counseling.9 Appellant’s civilian defense counsel 

[CDC] did not object to this testimony.

The Government presented the testimony of SA Whiskey, IC2 Victor,

EM2 Delta and AN Sierra. The military judge admitted seven prosecution 

exhibits, which were diagrams of the heads and the photographic arrays. The 

Defense did not put on a case. The members acquitted Appellant of the July 

2017 incident but found him guilty of the November 2017 incident.

During pre-sentencing, the Government offered no evidence. AN Sierra

presented a brief unsworn statement pursuant to Rule for Courts-Martial 

[R.C.M.] 1001A. He told the members how he had lost his “sense of privacy”

and had a “hard time doing things such as taking showers and even sleeping”

that caused him to “lose focus” with his duties on the flight deck,10 but he was 

able to “bounce back” quickly.11 He also never told his family what happened 

because he did not want them to worry about him. He ended his unsworn 

statement by telling the members, “due to this violation of my privacy, it has 

made me not want to continue my career in this branch of service.”12

Appellant presented character testimony from a third class petty officer

and a first class petty officer. The military judge admitted Appellant’s awards

and evaluations and two character letters; one from a former teacher and 

coach, and one from a master chief who was Appellant’s current (albeit 

 

7 Id. at 262.

8 The Government initially charged three specifications, but withdrew the first 

one, which alleged that Appellant indecently viewed IC2 Victor who merely saw 

Appellant indecently viewing EM2 Delta in July 2017. See Charge Sheet.

9 Record at 248.

10 Id. at 397.

11 Id. at 398.

12 Id.
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temporary) supervisor. The master chief asked the members to give Appellant a “second chance” and put his “Anchors and Two Stars on the table” in 

the hopes they would do so.13 Finally, Appellant made an unsworn statement

during which he accepted responsibility for upsetting the victim, but he did 

not admit his guilt of the offense. He apologized to AN Sierra and acknowledged that he knew his “career in the Navy [was] over” but asked not to 

receive a bad-conduct discharge.14

The TC recommended a sentence of five months’ confinement, forfeiture of 

$800 per month for five months, reduction to E-1, and a bad-conduct discharge. The TC argued that this sentence would serve as a “reminder” to 

Appellant, which was “particularly important in this case because [he] 

already had that reminder once.”15 The TC continued:

TC: He already had that warning once because back in 

July of 2017, he was counseled about appropriate 

bathroom etiquette. In response to that, he started 

using a different head—

DC: Your Honor, I’m going to object; this is not before the 

members.

TC: Your Honor, there was evidence presented that in 

July of 2017, after the first incident, Special Agent 

Whiskey testified that he received a counseling—

MJ: The objection is overruled.

TC: That reminder is even more appropriate because he 

already got that reminder once, and in November, he 

was using a different head, and he ignored it.16

The TC described his sentence recommendation as appropriate because it 

“sends a message to every other Sailor who might be good at his job but 

thinks about looking at one of his shipmates in a shower.”17 In concluding, 

the TC argued that a lenient sentence would send a message that as long as 

 

13 Def. Ex. A at 3.

14 Record at 407.

15 Id. at 415.

16 Id. at 415-16.

17 Id.
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“you’re good at your job, . . . it doesn’t matter what you do. You can spy on 

your shipmates in the shower . . . .”18

After the TC’s argument, the Defense requested a limiting instruction on 

account of the “improper argument.”19 In response, the military judge said, 

“All right, members, the—the evidence that you heard during the findings 

portion is evidence that is still before the court, so you are allowed to consider 

it. [Appellant] is only going to be sentenced for the offense for which you 

found him guilty.”20

When the members started deliberations, the Defense asked to state for 

the record that SA Whiskey never saw a counseling document, that the 

Government never presented a counseling document, and that it was the 

Defense’s belief that the command never counseled Appellant. The Defense 

also argued that the TC made an improper argument that Appellant repeated 

his conduct in spite of the counseling, improperly undercutting any Defense 

argument for rehabilitative potential. This was aggravated, the Defense 

argued, because the underlying conduct for the alleged counseling was 

conduct for which he was just acquitted. Finally, the Defense argued that this 

kind of error was “so prejudicial that it might merit a sentencing rehearing[.]”21

II. DISCUSSION

A. The Evidence is Legally and Factually Sufficient

We review Appellant’s convictions for legal and factual sufficiency de 

novo.22 The test for factual sufficiency is whether, “after weighing the 

evidence in the record of trial and making allowances for not having personally observed the witnesses, [this Court is] convinced of [A]ppellant’s guilt 

beyond a reasonable doubt.”23 In conducting this unique appellate function, 

we take “a fresh, impartial look at the evidence,” applying “neither a pre-

 

18 Id.

19 Id. at 417.

20 Id.

21 Id. at 444.

22 Art. 66, UCMJ; United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).

23 United States v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017) (emphasis, citation,

and internal quotation marks omitted).
United States v. Phillips, NMCCA No. 201900082

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sumption of innocence nor a presumption of guilt” to “make [our] own

independent determination as to whether the evidence constitutes proof of 

each required element beyond a reasonable doubt.”24 When conducting this 

review, we are “limited to the evidence presented at trial.”25 Proof beyond a 

reasonable doubt does not mean, however, that the evidence must be free 

from conflict.26

When testing for legal sufficiency, we look at “whether, considering the 

evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt.”27

To convict Appellant under Article 80, UCMJ,28 the Government must 

prove beyond a reasonable doubt that: (1) Appellant made a certain overt act; 

(2) this amounted to more than mere preparation; (3) it apparently tended to 

effect the commission of a crime; and (4) the act was done with specific intent 

to commit another offense under the UCMJ. Here, the underlying offense was 

indecent recording under Article 120c, UCMJ.

The case against Appellant was strong. When AN Sierra testified, he 

described how he saw Appellant in the head, how Appellant held his cellphone camera inside the shower curtain, and how he saw him run into a 

nearby shower—fully clothed—and pretend to shower. He testified that he 

saw Appellant leave the shower and the head, while still dry in a full

coveralls uniform. The Government also presented both photographic arrays

that SA Whiskey presented to the victim in order to identify Appellant—the 

first array that did not have Appellant’s photograph (from which the victim 

did not select any photograph), and the second array from which he immediately identified and selected Appellant. 

SA Whiskey also testified that when she interviewed Appellant for the 

November 2017 incident, his explanation was that he went into the head 

after working out just to wash his “genital area because he had some medical 

 

24 Washington, 57 M.J. at 399.

25 United States v. Pease, 75 M.J. 180, 184 (C.A.A.F. 2016) (quoting United States 

v. Beatty, 64 M.J. 456, 458 (C.A.A.F. 2007)).

26 United States v. Goode, 54 M.J. 836, 841 (N-M. Ct. Crim. App. 2001).

27 United States v. Turner, 25 M.J. 324 (C.M.A. 1987) (citing Jackson v. Virginia, 

443 U.S. 307, 319 (1979)); see also United States v. Robinson, 77 M.J. 294, 297-98 

(C.A.A.F. 2018).

28 10 U.S.C. § 880 (2016).
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things going on.”29 He was also upset that the Sailor accused him and did not 

attempt to have a “verbal dialog”30 [sic] with him, but instead just reported 

the incident to NCIS. Finally, he opined that he was “being accused of all 

these accusations” because he put an end to the “moneymaking” by which he 

claimed the ship’s Air Department would order supplies and sell them to the 

air wing.31

Appellant’s statements to SA Whiskey were almost tantamount to a confession. Coupled with AN Sierra’s positive identification of Appellant in the 

photographic array and the lack of any apparent bias or motive to fabricate, 

we find the conviction factually sufficient. Also, in reviewing the evidence “in 

the light most favorable to the prosecution”32 we find that a reasonable 

factfinder could have found all the essential elements beyond a reasonable 

doubt. The conviction is both factually and legally sufficient.

B. Trial Counsel’s Argument in Pre-Sentencing Was Not Prejudicial

“When preserved by objection, this Court reviews allegations of improper 

argument de novo to determine whether the military judge’s ruling constitutes an abuse of discretion.”33 Prosecutorial misconduct occurs when trial 

counsel “oversteps the bounds of that propriety and fairness which should 

characterize the conduct of such an officer in the prosecution of a criminal 

offense.”34 “Improper argument is one facet of prosecutorial misconduct.”35

The military judge was presented with an unusual situation. The evidence of the counseling was admitted during findings without objection and 

without limitation. Under Mil. R. Evid. 105, this means this evidence was 

“fair game” and could be used without limitation. Although during findings 

the TDC could have objected for any number of reasons (hearsay, lack of 

personal knowledge, relevance), he did not. The TDC could also have cross-

 

29 Record at 263.

30 Id.

31 Id. at 264.

32 Rosario, 76 M.J. at 117 (quoting United States v. Gutierrez, 73 M.J. 172, 175 

(C.A.A.F. 2014)).

33 United States v. Sewell, 76 M.J. 14, 18 (C.A.A.F. 2017) (citing United States v. 

Hornback, 73 M.J. 155, 159 (C.A.A.F. 2014)).

34 United States v. Fletcher, 62 M.J. 175, 178 (C.A.A.F. 2005) (quoting Berger v. 

United States, 295 U.S. 78, 84 (1935)).

35 Sewell, 76 M.J. at 18 (citing United States v. Young, 470 U.S. 1, 7-11 (1985)).
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examined SA Whiskey in detail on the foundation of her knowledge and 

developed what she meant by “bathroom etiquette.” But the TDC did none of 

this and only objected to the argument and claimed he believed the testimony 

was untrue, during and after sentencing argument when the evidence had 

long been admitted without limitation.

On appeal, the Defense argues the TC’s argument cut too close to a serial 

offender argument. The problem is that we simply do not know what the 

counseling entailed, or if it happened at all. If Appellant was counseled not to 

commit Article 120c offenses and specifically told not to attempt to view or 

photograph other Sailors as they showered, then the TC’s argument was 

certainly a serial offender argument. On the other hand, if Appellant was 

counseled not to take his cell phone into bathrooms because other Sailors 

may misinterpret his actions, then the TC’s argument can be viewed in a 

different light. The record is unclear as to what the counseling entailed 

because the TDC did not object or elicit further information. Given the two 

possible interpretations of this argument, and its lack of persuasive force, we 

will consider whether this argument—if error—prejudiced Appellant.

The military judge provided two instructions, both of which were legally 

correct: that the members can consider evidence presented during findings 

and that the members could only sentence Appellant for the offense of which 

he was found guilty. While this instruction did not address the TDC’s concern 

over the TC’s bootstrapping argument, we find any error did not prejudice 

appellant.

Our superior court has “set out three factors to guide our determination 

of the prejudicial effect of improper argument: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of 

the evidence supporting the conviction.”36 “In the context of an allegedly 

improper sentencing argument, we consider whether trial counsel’s comments, taken as a whole, were so damaging that we cannot be confident that 

[Appellant] was sentenced on the basis of the evidence alone.”37 Here, the 

prejudice was minimal at best. If the members had believed beyond a 

reasonable doubt that Appellant actually committed the alleged indecent 

viewing (or attempted indecent viewing) that was the subject of the counseling, then they would have convicted him on that specification. But they did 

 

36 Sewell, 76 M.J. at 18 (quoting Fletcher, 62 M.J. at 184) (internal quotation 

marks omitted).

37 United States v. Halpin, 71 M.J. 477, 480 (C.A.A.F. 2013 (internal quotation 

marks and citation omitted).
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not. The TC’s bootstrapping argument did not result in an unreasonably 

severe sentence. And the military judge did instruct the members to only 

sentence Appellant for the offense for which he was convicted. As we discuss 

below, we believe a bad-conduct discharge was an appropriate sentence under 

the circumstances. Finally, as discussed above, the weight of the evidence 

during findings against Appellant was strong—and that strength carried over 

into sentencing. We find no prejudice.

C. The Bad-Conduct Discharge is an Appropriate Sentence

We review sentence appropriateness de novo.38 “Sentence appropriateness

involves the judicial function of assuring that justice is done and that the 

accused gets the punishment he deserves.”39 This requires our “individualized 

consideration of the particular accused on the basis of the nature and 

seriousness of the offense and the character of the offender.”40 Despite our 

significant discretion in determining sentence appropriateness, we are 

mindful that this discretion does not extend to engaging in acts of clemency.41

A bad-conduct discharge is “designed as punishment for bad-conduct rather than as a punishment for serious offenses of either a civilian or military 

nature.”42 Appellant attempted to record another Sailor while he was 

showering aboard ship, causing him to state that he no longer wanted to stay 

in the Navy. Appellant’s conduct certainly qualifies as “bad-conduct.”

Having given individualized consideration to the nature and seriousness 

of the crime, Appellant’s record of service, and the entire record of trial, we 

conclude the sentence, to include the bad-conduct discharge, is not inappropriately severe.

III. CONCLUSION

After careful consideration of the record and briefs of appellate counsel, 

we have determined the approved findings are correct in law and fact and 

find no error materially prejudicial to Appellant’s substantial rights occurred. 

 

38 United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006).

39 United States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988).

40 United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (citation and internal 

quotation marks omitted).

41 United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).

42 R.C.M. 1003(b)(8)(C).
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Arts. 59, 66, UCMJ. Accordingly, the findings and sentence as approved by 

the convening authority are AFFIRMED.

Senior Judge TANG and Judge LAWRENCE concur.

FOR THE COURT:

RODGER A. DREW, JR.

Clerk of Court