## U NITED 

## S TATES 

## N AVY



## – M ARINE 

## C ORPS 

## C OURT OF 

## C RIMINAL 

## A PPEALS

_________________________ No

. 20160 0031

_________________________ 

### UNITED STATES OF AMERICA

Appellee

v. 

### MARK J. WINIECKI Aviation Machinist’s Mate First Class (E

- 6), U.S. Navy Appellant

____________

_____________ Appeal from the United States Navy

- Marine Corps Trial Judiciary

Military Judge: Captain Ann K. Minami, JAGC, USN

. For Appellant: Lieutenant Christopher C. McMahon, JAGC, USN. For Appellee: Captain Dale O. Harris, JAGC, USN; Major Tracey L. H oltshirley, USMC

.

_________________________ Decided 29 September 2016

_________________________ Before CAMPBELL, GLASER

- ALLEN
, AND HUTCHISON, Appellate Military Judges

_________________________ This opinion does not serve as binding precedent, but may be cited as persuasive authority under NMCCA Rule of Practice and Procedure 18.2.

_________________________ CAMPBELL, Senior Judge : Consistent with the appellant’s guilty pleas at a g eneral court

- martial , a military judge convicted him of individual specific ations for raping a child, sexual ly abusing a child, and obstructing justice

— v iolation s of Article s 120b and 1 34 , Uniform Code of Military Justice (UCMJ) , 10 U.S.C. § § 920b and 9 34 (2012)

. The military judge sentenced the appellant to 25 year s of confineme nt, reduction to pay grade E

- 1, and a dishonorable discharge

. T he convening authority approved the sentence as adjudged and complied with the confinement and automatic forfeiture provisions of the pretrial agreement.
In his sole assignment of error , the ap pellant contends that the military judge abused her discretion by consider ing a portion of the M ILITARY R ULE OF E VIDENCE2

(M IL

. R

. E VID

. ) 414 , M ANUAL FOR C OURTS

- M ARTIAL , U NITED S TATES (2012 ed.) testimony during pre sentencing proceedings. Consequently, he a sks that his case be remanded for a new presentencing hearing. 1 We conclude the findings and sentence are correct in law and fact
, and we find no error materially prejudicial to the appellant’s substantial right s

. I. B ACKGROUND In a written stipulation of fact and during his colloquy with the military judge about the guilty pleas, the appellant admitted to an incident of rubbing his and his step

- daughter’s genitals together while they were both clothed, a later incident of rubbing his unclothed genitals aga inst her clothed genitals, and a third incident of their having penile

- vaginal sexual intercourse . He explained that these events took place between March and June 2015, when the child was nine years old, and that other incidents may have also occurred des pite his inability to specifically recall them

. The child reported the sexual relationship to her mother on 1 July 2015. The next day , the appellant recorded a short conversation with his step

- daughter about her revelations

. He tried to convince the child to say her allegations were just dreams and record ed the conversation for use in his defense . As his efforts to capture a recantation proved unsuccessful, he deleted the video recording before investigators ultimately recovered it from his cell phone.
At the presentencing hearing , b efore any testimony, the trial defense counsel (TDC) first objected to Prosecution Exhibit (PE) 2

— the victim’s video

- taped forensic interview , conducted by the Naval Criminal Investigative Service

— as improper evidence in aggrava tion under R ULE FOR C OURTS

- M ARTIAL (R

. C

. M

. ) 1001(b)
, M ANUAL FOR C OURTS

- M ARTIAL , U NITED S TATES (2012 ed.) for “includ[ing] othe r instances of misconduct under [ M IL

. R. E VID

. ] 413 and [ M IL

. R. E VID

. ] 414.” 2 But even in raising the objection, the TDC specific ally acknowledged some of the appellate case law adverse to the defense position. 3 In overruling the objection, the military judge stated, in part:
Because it is 414

— M.R.E. 414 evidence, there are some threshold questions. One, obviously, this case has to involve

. . . child

1 The assignment of error is raised pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982). Although not raised at trial or on appeal, we also note that the Article 34, UCMJ, advice post

- dates the referral of charges and does not address the additional charges. The appellant does not allege, nor do we find, that he was prejudiced by these waived, non

jurisdictional, procedural errors. See United States v. Murray , 25 M.J. 445, 449 (C.M.A. 1988).

2 Record at 88.

3 T he assignment of error does not include the milit ary judge’s consideration of PE 2

.3 molestation . . . . This evidence . . . is information coming from the same victim as the victim in the

-- charges or the offenses to which the accused has been found guilty. . .

. so that does tend to prove

. . . some evidence that perha ps these earlier uncharged instances had occurred.
I find that information is relevant because it is directly related to the offenses to which the accused has been found guilty . . . . And then balancing the

. . . probative value of the

. . . evidence of a continuing course of conduct, I find that th at probative value is not going to be substantially outweighed by the danger of unfair prejudice. . . . At this point , as I understand the evidence, I am just limiting what

. . . I am going to consider just to s how the continuous nature of the conduct, put the offenses to which the accused pled guilty in proper context and to consider its impact on the victim. 4 Consistent with her statements within PE 2, the victim later testified that the appellant sexually abu sed her for three years, beginning when she was in the first grade. S he further testified that her most recent sexual encounter with the appellant was physically painful and happened on the morning after she initially reported the crimes to her mother. 5 Th e TDC then objected under R

. C

. M

. 1001(b)(4) and M IL. R

. E VID. 403 and 414 , arguing the new allegation was unreliable since it was inconsistent with the victim’s earlier statement s. The military judge overruled th is objection , too : [W]e spoke earlier about 414 evidence and whether it would come in, but in balancing . . . the probative value of the evidence, one of the things we look at is the . . . strength of proof of the act that we’re talking about. I’ve already received the

. . . evidence . . . that I co nsider for the purpose of putting the accused’s conduct in context in this continuing course of conduct and impact on the victim, so . . . the objection is overruled, and I will continue to listen to what the

-- witness has to say and consider it

. . . . 6 “[ T]o make sure the record is clear,” the military judge revisited her ruling at the close of the Government’s presentencing case:

4 Record at 92

- 94. Of note, in PE 6, which was admitted without objection, the appellant confessed to actually raping his step

- daughter on three separate occasions

— twice in their living room and once in her bedroom

— since returning from a deployment in early 2015.

5 The prosecutor informed the TDC about the most recent uncharged incident when he learned of the victim’s expected testimony, and the TDC did not request a continuance. Id

. at 235.

6 Id

. at 205

- 06.4 [T]he objection we covered about the

. . . M.R.E. 414 issue regarding . . . the incident that [the victim] says happened the mo rning after she made the report to her mom, I still consider that . . . M.R.E. 414 evidence. I put my analysis on the record earlier. The fact that this incident happened after the report to her mom doesn’t change my analysis. I still think it it’s . . . c ontinuing

- course

- of

- conduct type of evidence that’s allowable in aggravation, and again with all the same balancing and weighing of it, so just

. . . to make clear, my earlier analysis under 414 applies to this incident, also to the extent that I’ll consid er it as

. . . aggravating information. 7
II. D ISCUSSION We review the admissibility of sentencing evidence for an abuse of discretion, United States v. Ediger , 68 M.J. 243, 248 (C.A.A.F. 2010)), and we do not overturn a military judge’s ruling unless it i s “‘arbitrary, fanciful, clearly unreasonable, ’ or

‘ clearly erroneous,’” United States v. McDonald, 59 M.J. 426, 430 (C.A.A.F. 2004) (quoting United States v. Miller , 46 M.J. 63, 65 (C.A.A.F. 1997)), or influenced by an erroneous view of the law. Id. (quot ing United States v. Humphreys , 57 M.J. 83, 90 (C.A.A.F. 2002)). A military judge must make three threshold findings before admitting M IL

. R. E VID

. 414 evidence: (1) whether the accused is charged with an act of child molestation , as defined by M IL

. R. E VID

. 414(a); (2) whether the proffered evidence relates to the accused’s commission of another child molestation offense
, as defined by the rule; and (3) whether the evidence is relevant under M IL

. R. E VID

. 401 and 402. Ediger , 68 M.J. at 248 (citing Uni ted States v. Bare , 65 M.J. 35, 36 (C.A.A.F 2007)). Upon finding proffered evidence satisfies the initial thresholds, the military judge must then separately apply the M IL

. R. E VID

. 403 balancing test, under which the te stimony may be excluded if its “ pr obative value is substantially outweighed by the danger of

. . . unfair prejudice, confusi ng the issues, misleading the members, undue delay , wasting time, or needlessly presenting cumulative evidence .” The MJ should consider at least the following factors : 1) strength of proof of the prior act; 2) probative weight of the evidence; 3) potential to present less prejudicial evidence; 4) possible distraction of the fact

- finder; 5) time needed to prove the prior conduct; 6) temporal proximity of the prior event ; 7) frequency of the acts; 8) presence or lack of intervening circumstances; and 9) relationship between the parties. United States v. Wright , 53 M.J. 476, 482 (C.A.A.F. 2000) (citing United States v. Enjady , 134 F.3d 1427, 1433 (10th Cir. 1998) and Unite d States v. Guardia , 135 F.3d 1326, 1331 (10th Cir. 1998) )

. If the military judge “does not sufficiently articulate [her] balancing [test

7 Id. at 23 3

- 34.5

under M IL

. R. E VID

. 403] on the record, [her] evidentiary ruling will receive less deference from this court.” Ediger , 68 M.J. at 248 (citation and internal quotation marks omitted)

. Evidence that is properly admitted under the M IL

. R. E VID

. 414 and M IL

. R. E VID

. 403 analysis is also admissible for sentencing. See United States v. Tanner , 63 M.J. 445, 449 (C.A.A.F. 2006) (holding that “in a child molestation case, evidence of a prior act of child molestation ‘directly relat[es] to’ the offense of which the accused has been found guilty and is therefore relevant during sentencing under R.C.M. 1001(b)(4)”) (citations omitted ))

. The appellant asserts that the most recent sexual encounter described by the victim “had no indicia of reliability and was subsequently proven to be untrue.” 8 He further argues that “[i]t is very likely that if the military judge had not considered thi s evidence she would have given [the appellant] a significantly lower sentence.” 9
Yet t he record demonstrates that the military judge was aware of the M IL

. R. E VID

. 414 standards and M IL

. R. E VID

. 403 balancing requirements. She addressed, to some extent, the threshold findings and the strength of the proof in weighing and admitting the evidence. The military judge did not articulate her analysis for each of the Wright factors on the record. But even if we afford her analysis no deference and conduct our o wn de novo review of those factors, we conclude it was proper to admit the challenged evidence

. And if we assume d err or in admitting the last incident that the victim described , the appellant still was not prejudiced. The test for prejudice is whether t he error substantially influenced the adjudged sentence. United States v. Sanders , 67 M.J. 34 4, 346 (C.A.A.F. 2009) (finding no substantial influence from a letter by the appellant admitted at sentencing, due to “the severity of Appellant’s crimes,” and th eir effect on the victims)

. We are convinced that the same sentence would have been adjudged , even absent the evidence of the final incident, given the severity of appellant’s admissions to several instances of serious sexual abuse of his nine

- year

old ste pdaughter , his efforts to have her say she dreamed the ordeal, and the additional evidence that the abuse occurred for years. Finally, w e also review sentence appropriateness de novo

. United States v. Lane
, 64 M.J. 1, 2 (C.A.A.F. 2006). “Sentence app ropriateness 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 our “individualized consideration of the particular ac cused 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) (citation and internal quotation mark s

8 Appellant’s Brief of 7 Jun 2016 at 5.

9 Id.6

omitted). The appellant’s convictions triggered a mandatory dis honorable discharge and hi s maximum punishment includ ed po tential confinement for life wi thout the possibility of parole. With individualized consideration of the appellant, the nature and seriousness of his offenses, his record of service, and all the mat ters within the record of trial, we find that his adjudged sentence is appropriate

. III. C ONCLUSION The findings and the sentence approved by the convening authority are affirmed. Judge GLASER

- ALLEN and Judge HUTCHISON concur.



### For the Court

R.H. TROIDL Clerk of Court