## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, HERRING, and BURTON Appellate Military Judges

UNITED STATES, Appellee

v. Sergeant First Class JASON M. COMMISSO United States Army, Appellant

ARMY 20140205

8th Theater Sustainment Command Jeffery D. Lippert, Mil itary Judge (arraignment) David L. Conn, Mili tary Judge (trial) Colonel Paul T. Salussolia, St aff Judge Advocat e (pretrial) Colonel Anthony T. Fe bbo, Staff Judge Advo cate (post-trial)

For Appellant: Major M. Patr ick Gordon, JA; Eugene R. Fidell, Esquire (on brief).

For Appellee: Colonel Mark H. Sydenham , JA; Major John K. Choike, JA; Captain Scott L. Goble, JA (on brief).

29 April 2016

---------------------------------- MEMORANDUM OPINION

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

MULLIGAN, Senior Judge:

An officer panel sitting as a general court-martia l, convicte d appellant, contrary to his pleas, of one specification of violation of a lawf ul general regulation, one specification of making a false official statement, tw o specifications of abusive sexual contact, one specificat ion of indecent vi ewing of a person’s private area, one specification of indecen t recording of a person’s priv ate area, one specification of wrongful distribution of a recording of a person’s pr ivate area, and one specification of obstruction of ju stice in violation of Articl es 92, 107, 120, 120c, and 134, Uniform Code of Military Ju stice, 10 U.S.C. §§ 892, 907, 920, 920c, 934 (2012) [hereinafter UCMJ]. The panel sentence d appellant to a bad- conduct discharge, confinement for one ye ar, forfeiture of all pay and al lowances, and reduction to the grade of E-1. Th e convening authority approved the sentence as adjudged.COMMISSO — ARMY 20140205

2 This case is before this court for review under Ar ticle 66, UCMJ. Appellant raises seven assignments of error, two of which me rit discussion and relief. Appellant also personally raises several addition al matters pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1983 ), none of which merit discussion or relief.

FACTS

Appellant met Marine Private First Class (PFC) EW 1 on the morning of 31 May 2013 while both were at physical therapy at Tripler Army Medical Center (TAMC). They talked, got to know eac h other, and eventu ally PFC EW gave appellant her phone number. During their initial conv ersation at TAMC, PFC EW told appellant that she was nineteen years old and that she was in phys ical therapy for an injury she received during basic trai ning. Private First Cl ass EW learned that appellant had been in the Army for sixteen years.

Appellant contacted PFC EW via text messag e that same day, and they made plans to go to dinner and a movie that ni ght. Because PFC EW ’s injury prevented her from driving, appellant picked her up at her barracks at Marine Corps Base

Hawaii. Private First Cl ass EW’s injury prevente d her from walking and

necessitated the use of a wh eelchair. Appellant and PF C EW went to dinner at Cheesecake Factory, which PFC EW descri bed at appellant’s co urt-martial as an “expensive” restaurant . According to PFC EW, appellant tried to hold her hand during dinner and later he kissed her on the forehe ad. After dinner, they unsuccessfully tried to see a movie and ended up going on a motorcycle ride instead. At the end of the evening, appellant aske d PFC EW if she want ed to stay at his apartment or have him take he r home. Private First Class EW testified that she felt “obligated” to stay at his apartment beca use he bought her an “expensive” dinner.

Once inside appellant’s apartment, PFC EW took a morphi ne pill and fell asleep on his couch while th ey were watching television. She woke up to appellant touching her chest and stomach. She testified that her shirt and bra were pushed away and she, while pretending to be asle ep, heard appellant taking pictures of her chest and saw camera flashes. At trial, the government alleged that appellant took additional photographs of PFC EW’s nipple later on in the evening, pictures she was

not aware of until sh ortly before the tria l began. In additi on, without PFC EW’s consent, appellant sent a nude photo of PFC EW that she had taken herself to

another soldier.

Private First Class EW eventually re ported that appell ant had sexually

assaulted her and the U.S. Army Criminal Investigatio n Command (CID) opened an investigation. Appell ant, during an inte rview with CID Speci al Agent (SA) JM,

1 The Marine Corps promoted her to Lance Corporal by the time of trial.COMMISSO — ARMY 20140205

3 initially denied, and then later admitted, taking pictures of PFC EW. 2 Based on these statements, the government charged a ppellant with making a false official statement. The government’s proof of this specificati on consisted mainly of the testimony of SA JM. On di rect examination, SA JM test ified that during his first interview, he specifically asked appellant whether he had taken any pictures of PFC EW, and SA JM testified appellant denied his accusation. On cross-examination, however, SA JM admitted th at his question to appell ant was “did you take any nude pictures of PFC [EW]?” (emphasis added). Special Agent JM further admitted that he did not ask appellant if he had taken any topless pictures of PFC EW.

During his closing argumen t, trial defense counsel argued that “ nude” is not the same thing as “topless,” and when appellant denied taki ng any “nude” pictures of PFC EW, he was telling the tr uth. The pictures he to ok were “tople ss,” but not “nude,” and therefore he could not be convicted of making a false official statement.

The Specification of Charge V allege d appellant made a false official

statement as follows:

In that [appellant] did, on or near the island of Oahu, on or about 2 June 2013, with intent to deceive, make to [SA JM], an official statement, to wit: “I didn ’t take any pictures of [PFC EW] nude ,” or words to that effect,

which statement was false in that [appellant] did take photographs of [PFC EW’s] bare breast

, 3 and was then known by the [appellant] to be so false. (emphasis added).

The military judge instructed the panel on this specification, without defense objection, as follows:

To find the accused guilty of this offe nse, you must be convinced by legal and comp etent evidence beyond reasonable doubt: [o]n e, that at or near the island of Oahu

on or about 2 June 2013, the accused ma de to [SA JM] a certain official statement, that is: “I didn’t take photographs of [PFC EW’s] bare breast ” or words to that effect; [t]wo,

that such statement was false in that the accused did take

2 Law enforcement agents fou nd several of these pictures on appellant’s phone, some of which were admitted by the gove rnment as exhibits at trial.

3 The promulgating order is in correct for this specificatio n. It has “nude” instead of

“bare breast” at the indicated location. We order this co rrection to the promulgating

order.COMMISSO — ARMY 20140205

4 photographs of [PFC EW’s] bare breasts. (emphasis added). 4

On appeal, appellant claims the military judge failed to properly instruct the panel on this specification, and the eviden ce was factually insufficient to convict appellant of making a false official statement. We find that the military judge committed plain error in his instructions and, th at under the unique circumstances of this case, this error mate rially prejudiced appellant’s subs tantial rights.

LAW AND ANALYSIS

A. The Specification of Charge V, False Official Statement

We review de novo the question of whether th e members were properly

instructed. United States v. Payne, 73 M.J. 19, 22 (C.A.A.F. 2014). However, when the defense fails to object to an instructio n at trial, we review for plain error. Id. at 23; United States v. Davis, 75 M.J. 537, 543 (Arm y Ct. Crim. App. 2015); see also Rule for Courts Martial [her einafter R.C.M.] 920(f). "U nder a plain error analysis,

the accused 'has the burden of demonstratin g that: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudi ced a substantial right of

the accused.'" Payne, 73 M.J. at 23-24 (quoting United States v. Tunstall , 72 M.J. 191, 193-94 (C.A.A.F . 2013)). The gover nment bears the burden of determining

what offenses to ch arge an accused. United States v. Morton , 69 M.J. 12 (C.A.A.F. 2009).

Here, the military judge impermissibl y substituted the wrong la nguage from the charge sheet in his instructions conc erning the Specificat ion of Charge V. Although the specif ication alleged appellant made an official statement by saying “I didn’t take any pictures of [PFC EW] nude, ” the military judge instructed the panel

that his official statement was “I di dn’t take photograp hs of [PFC EW’s] bare

breast. ” (emphasis added). We find that this change in wording by the military judge is error and it is plain or obvious. We further find that this plain error prejudiced appellant’s substa ntial rights for two reason s. First, there was no evidence that appellant ever told SA JM that he did not take photographs of PFC

EW’s bare breast. To the contrary, SA JM testified th at he never asked about topless photographs. Thus, based so lely on this instruction, the panel could not have convicted appellant of denying taking a pi cture of PFC EW’s bare breast because there was no evidence appellant ever made such a statement.

More importantly, give n defense counsel’s argumen t and defense to this specification and charge, this instruction ch anged the nature of the charge in a way

that made it easier for the panel to find appellant guilty. Appellant did not provide a

4 We also note the military judge erred by re ferring to “breasts” rather than “breast” as charged in the Specif ication of Charge V.COMMISSO — ARMY 20140205

5 written statement to CID, an d the record contains no evidence that SA JM’s interview of appe llant was videotaped. Thus, we must rely on SA JM’s testimony as to the exact language of his questions regarding the photographs. Special Agent JM initially testified on direct examination that appellant denied taki ng any pictures of

PFC EW. If this testim ony were undisputed, appellant’s guilt would be clear because the government offe red eight photographs of PFC EW that appellant later

admitted he took without he r consent. However, on cr oss-examination, it became clear that SA JM asked ap pellant if he took any nude pictures of PFC EW. Arguably, appellant c ould have heard that question a nd answered in the negative thinking that the pict ures he took were not nude, but just of her bare breast. Whether this hypothetical was actually the case and appellant truly lacked the intent to deceive when making his statement, or wh ether appellant answered in the negative intending to deceive SA JM into believing th at he did not take any pictures of PFC EW (nude or otherwise), wa s a question for the panel to decide based on the evidence presented.

Had the military judge given the inst ruction the way the charge was worded, using the word “nude,” the panel would have had to discuss what appellant’s intent was in denying taking “nude” photographs. In stead, by changing “nude” to “bare breasts,” the military judge made this deci sion much easier on the panel. All the panel had to do was determine that appellan t specifically denied taking photographs

of PFC EW’s bare breasts an d that he did, in fact, ta ke photographs of her bare

breasts. 5 Since the panel had the actual photographs taken by the appellant of PFC EW’s breasts in evidence, they found, relying on the erroneous instruction, that appellant had made a false statement. A ccordingly, because the military judge’s

erroneous instruction on the elements of false official statement materially prejudiced appellant’s substan tial rights, we will set this charge an d its specification

aside in our decretal paragraph.

B. The Specification of Char ge III, Violation of a Lawful General Regulation

In accordance with Article 66(c), UCMJ , we review issues of legal and factual sufficiency de novo. United States v. Washington , 57 M.J. 394, 399 (C.A.A.F. 2002). The test for legal sufficiency is "whether, considering the evidence in the light most favorable to the pros ecution, a reasonable factfinder could have found all the essential elements bey ond a reasonable doubt." United States v. Turner , 25 M.J. 324, 324-35 (C.M.A. 1987); see also Jackson v. Virginia , 443 U.S. 307, 319 (1979); United States v. Humpherys , 57 M.J. 83, 94 (C.A.A.F. 2002). The test for factual sufficiency is "whether, af ter weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, [we] are [ourselves] convince d of the accused's guilt be yond a reason able doubt." Turner , 25

M.J. at 325.

5 See supra note 4.COMMISSO — ARMY 20140205

6 Appellant’s misconduct described above resulted in a char ge of violating a lawful general regulation, specifically Army Reg. 600- 20, Personnel – General: Army Command Policy [hereinafter AR 6 00-20], para. 4-14.b. (18 Mar. 2008), by “wrongfully having an inappr opriate relationship with [P FC EW] which was, or was perceived to be, coercive in nature and created an adverse or clearly predictable adverse impact on discipline.”

Army Regulation 600-20, para. 4-14. b. prohibits relationships between soldiers of different ranks if they:

(1) Compromise, or appear to compromise, the integrity of supervisory authority or the chain of command.

(2) Cause actual or perceived partiality or unfairness.

(3) Involve, or appear to invo lve, the improper use of rank or position for personal gain.

(4) Are, or are perceived to be, exploitative or coercive in

nature.

(5) Create an actual or clearl y predictable adverse impact on discipline, authority, mo rale, or the ability of the command to accomp lish its mission.

Having completed our revi ew and in consideration of the entire record, we find that appellant’ s conviction for violating a lawf ul general regulation is not legally or factually su fficient. Specifically, we find that the government failed to prove beyond a reasonable d oubt that the “rela tionship” between appellant and PFC EW was, or was perceived to be, coercive in nature, or th at it created an adverse or clearly predictable advers e impact on discipline.

Appellant and PFC EW were in two different armed services, were not in the same unit, did not work or li ve on the same installations, and did not have any kind of supervisor-subo rdinate relationship. We recognize that the regulation does not require that both parties to a relationship be in the sa me unit or even the same service to be prohibite d. However, under the facts of this case, appellant and PFC EW had no professional relationship what soever, which essentially eliminates the possibility that their relation ship could be coercive base d upon their different ranks.

We have no doubt that appellant knew PFC EW was a lower enlisted Marine who had recently completed basic training. Similarly, we have no doubt that PFC EW knew appellant was a senior enlisted sold ier, given that she kn ew he had been in the Army for sixteen years. However, the government presented no evidence this

difference in rank had any impact on the even ts of the evening. Private First ClassCOMMISSO — ARMY 20140205

7 EW testified that during th eir initial meeting, she found appellant to be caring and

reliable. She felt comfortable around him because he showed her pictures on his phone of children he cared for and because he was “know ledgeable” about his job in the Army. She willingly gave appell ant her phone number be cause he “s eemed like a very innocent sweet guy” to whom sh e was attracted. The government simply presented no evidence that PFC EW felt coer ced by appellant’s ra nk or position in the Army to give him he r phone number or to go ou t to dinner with him.

On appeal, the government places grea t emphasis on the fact that PFC EW felt ‘coerced” to stay at appellant’s apartment with hi m at the end of the evening. However her testimony in dicated any apparent “coercion” came from the fact that appellant bought he r an “expensive” dinner , tried to take her to a movie, and took her on a motorcycle ride—not the fact that he was a senior enlisted soldier in the Army.

Likewise, the government fa iled to prove beyond a re asonable doubt that this “relationship” had any advers e or clearly predictable adve rse impact on discipline. The fact that PFC EW was “disgusted” a nd felt “violated” by appellant’s actions

establishes that these action s were nonconsensual and thus cannot form a basis for establishing a consensual “inappropriate relationship” between the two. See United States v. Delgado , ARMY 20140927, 2016 CCA LEXIS 7 at *6-7 (Army Ct. Crim App. 6 Jan. 2016) (mem. op.). In addition, while the fa ct that appellan t sent a naked photo of a lower enlisted Ma rine to another soldier may well have a clearly predictable adverse impact on discipline, it has nothing to do with any “relationship” between appellant a nd PFC EW. It was a unilater al action taken by appellant

without the consent or knowle dge of PFC EW. Thus, a ppellant’s conduct cannot

form a basis to establish an “inappropriate relationshi p” prohibited by AR 600-20.

Accordingly, appellant's conduct is legally and fa ctually insufficient to establish an inappropri ate relationship under AR 600-20, para 4-14.b.

CONCLUSION

Upon consideration of th e entire record, the findings of guilty of the Specification of Charge III and Charge III and the Spec ification of Charge V and Charge V are set aside and DISMISSED. The remaining find ings of guilty are

AFFIRMED.

Applying the principles of United States v. Sales , 22 M.J. 305, 308 (C.M.A. 1986) and the factor s set forth in United States v. Winckelmann , 73 M.J. 11, 15-16 (C.A.A.F. 2013), we conclude that we can confidently re assess appellan t’s sentence without returning th is case for a sentence rehearing.

In evaluating the Winckelmann factors, our decision does not result in a

dramatic change in the penalty landscape desp ite the fact that appellant’s maximumCOMMISSO — ARMY 20140205

8 exposure to confinement is reduced by seven years. Id . at 15-16. Ap pellant faced a maximum sentence to confinement for 31 ye ars, yet the panel sentenced him to only one year. Even with the ma ximum confinement reduction as the result of our setting aside and dismissing two charges and th eir specifications, his sentence to

confinement is still far be low the maximum exposure. In addition, this court

reviews the records of a substantial number of co urts-martial in volving sexual assault and we have extensive experience with the level of sentences imposed for

offenses similar to thos e committed by appellant. Id . at 16.

Finally, the remaining offe nses still capture the gr avamen of appellant’s

criminal conduct. Id . Appellant remains convicted of viewing and photographing PFC EW’s nipple, touching her breast, and sending a privat e photo of her to another soldier, all without the consent of PFC EW. These actions are th e crux of the case,

and based on the entire record and appellant's course of conduct we ca n conclude the officer panel would have imposed a sentence of at least that which was adjudged. Accordingly, we AFFIRM the sentence as adjudged. All righ ts, privileges, and property, of which ap pellant has been depr ived by virtue of that portion of the findings set aside by this decision, ar e ordered restored.

Judge HERRING and Judge BURTON concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: