UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

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

Appellate Military Judges

UNITED STATES OF AMERICA

v.

QUANTAUS R. RIGGINS 

STAFF SERGEANT (E-6), U.S. MARINE CORPS

NMCCA 201400046

GENERAL COURT-MARTIAL

Sentence Adjudged: 26 September 2013.

Military Judge: LtCol Christopher M. Greer, USMC.

Convening Authority: Commanding General, 2d Marine 

Logistics Group, Camp Lejeune, NC.

Staff Judge Advocate's Recommendation: Maj B.T. Ackison, 

USMC.

For Appellant: Jeffery S. Stephens, Esq.; Maj Jason 

Wareham, USMC.

For Appellee: Maj Paul M. Ervasti, USMC; LCDR Keith B. 

Lofland, JAGC, USN.

26 November 2014

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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.

MCDONALD, Judge:

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

convicted the appellant, pursuant to his pleas, of one 

specification each of violating a lawful general order 

(fraternization), making a false official statement, and 

adultery, in violation of Articles 92, 107, and 134, Uniform 

Code of Military Justice, 10 U.S.C. §§ 892, 907, and 934. The 
2

appellant was convicted, contrary to his pleas, of one 

specification of violating a lawful general order (sexual 

harassment), five specifications of assault consummated by a 

battery,1 and one specification of communicating indecent 

language, in violation of Articles 92, 128, and 134, UCMJ, 10 

U.S.C. §§ 892, 928, and 934. The military judge sentenced the 

appellant to three years’ confinement, reduction to pay grade E1, and a bad-conduct discharge. The convening authority (CA) 

approved the sentence as adjudged. 

The appellant raises five assignments of error: 

(1) the appellant’s guilty plea to violating Article 

1165, U.S. Navy Regulations (Charge I, Specification 

2) was improvident where the regulation did not 

prohibit personal relationships between enlisted 

members; 

(2) the evidence is legally and factually insufficient 

to support findings of guilt to the offenses of 

communicating indecent language (Charge IV, 

Specification 2) and assault consummated by a battery 

(Additional Charge, Specifications 1,2, and 4-6); 

(3) the military judge erred when he found that 

assault consummated by a battery was a lesser included 

offense of abusive sexual contact and sexual assault 

as charged in the Additional Charge; 

(4) the military judge erred when he failed to dismiss 

seven other specifications as an unreasonable 

multiplication of charges with the charge of 

fraternization; and,

(5) the appellant’s sentence was inappropriately 

severe for this offender and his offense. 

After careful consideration of the record of trial, the 

appellant's assignments of error, the parties’ pleadings, and 

oral argument, 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. 

 

1 Under the Additional Charge, the appellant pled not guilty to four 

specifications of abusive sexual contact and two specifications of sexual 

assault, in violation of Article 120, UCMJ, 10 U.S.C. § 920 (2012). He was 

convicted on Specifications 1, 2, and 4-6 of the lesser included offense of 

assault consummated by a battery. The military judge acquitted the appellant 

of Specification 3 of the Additional Charge. 
3

Factual Background

The appellant, a married Staff Sergeant, knew Lance 

Corporal (LCpl) MS because they were originally assigned to the 

same support unit. As a staff noncommissioned officer (SNCO) in 

the unit, the appellant had direct supervisory authority over 

LCpl MS. In this capacity, the appellant assisted LCpl MS with 

processing some medical paperwork and became aware that she had 

violated a physician’s order to refrain from consuming alcohol. 

On 1 March 2013, the appellant was relieved of his supervisory 

duties at the unit to allow him to prepare for a one-year 

deployment assignment. However, as an SNCO, the appellant 

remained in a position to issue orders to the Marines in the 

unit and continued to visit members of the unit. 

On one such occasion, the appellant approached LCpl MS, who 

was in uniform, from behind, made a humping motion against her 

and said, “Oh, I just jizzed (sic) on myself.” Record at 199. 

On other visits, the appellant asked about LCpl MS’s sex life 

and requested sexual favors for assisting her with her medical 

paperwork and for keeping her from getting in trouble for 

drinking alcohol against her physician’s orders. LCpl MS 

testified that these actions and comments made her very 

uncomfortable, especially because the appellant was senior in 

rank to her, and thus remained in a position where he had 

authority over her. 

On 20 March 2013, the appellant again returned to his 

former unit and told the Marines he was going to send LCpl MS to 

get donuts for the unit. The appellant told LCpl MS he would 

meet her at Dunkin’ Donuts. LCpl MS testified that she was 

hesitant to get the donuts, but the appellant insisted their 

trip to Dunkin’ Donuts would be short. At trial, LCpl MS 

testified that because the appellant was of a higher rank and 

one of her SNCOs, she did not believe she could refuse. LCpl MS 

drove separately and the appellant followed. Once at Dunkin’ 

Donuts, the appellant told LCpl MS to get in his truck and again 

asked her for sexual favors. Just prior to exiting her vehicle 

to get into the appellant’s vehicle, LCpl MS turned on the voice 

recorder function of her cell phone to capture any more 

inappropriate comments or actions by the appellant. Id. at 204. 

At trial, the Government admitted the recording and 

transcription of the dialogue that took place between LCpl MS 

and the appellant that day.
4

LCpl MS testified that she was upset and scared because she 

was worried the appellant could still get her in trouble2 or 

compromise the routing of her medical paperwork. After some 

discussion, LCpl MS eventually agreed to go for a drive with the 

appellant in his truck. LCpl MS got into the appellant’s truck, 

but told him again that she did not want to have sex with him or 

perform any sexual favors. The appellant then drove LCpl MS to 

his on-base residence, pulled into his garage, and closed the 

garage door. LCpl MS testified that she was unfamiliar with her 

surroundings and had no confidence in her physical ability to 

run away at that time. 

While his truck was parked in the garage, the appellant 

made a number of sexual advances towards LCpl MS. Throughout 

the encounter, LCpl MS referred to the appellant as “staff 

sergeant” and was heard crying and telling him “no” - that she 

did not want to have sex with him. The appellant persisted and,

at one point, LCpl MS flashed her breast hoping it would make 

the appellant stop, but he instead leaned over and put his mouth 

on her nipple. LCpl MS said “no”, pushed him off, and pulled 

her bra and shirt back down. Record at 210-11. At trial, LCpl 

MS explained that at this point, she felt like the appellant 

would not let her leave until “something to his favor was going 

to happen.” Id. at 213. 

Next, LCpl MS got out of the truck and followed the 

appellant into his house. The appellant told LCpl MS to sit on 

the couch and stood over her. He pulled his pants down and 

placed LCpl MS’s hand on his penis and told her to rub it. The 

appellant tried to put his hand down LCpl MS’s pants, but she 

again said “no” and pushed him off. Id. at 216. The appellant 

then put his hand down the front of LCpl MS’s pants and 

digitally penetrated her vagina. He then told LCpl MS to pull 

her shirt up and placed his penis in between her breasts, then 

pulled her pants down and unsuccessfully tried to insert his 

penis into her vagina. The appellant next pulled LCpl MS’s 

underwear and pants the rest of the way down to her boots, 

pulled her legs over his head, and inserted his penis into her 

vagina. LCpl MS said that she did not resist further because 

the appellant had not taken “no” for an answer. 

Prior to deliberating on findings, the military judge 

requested counsel’s respective positions on whether he could 

consider lesser included offenses (LIOs) under the Article 120 

 

2 In January 2013, LCpl MS posted a picture of herself taking a shot of 

alcohol on Facebook and was told by members of her command that she was going 

to receive nonjudicial punishment for drinking alcohol against her doctor’s 

orders. Record at 206-07.
5

charges. Specifically, the military judge asked counsel to 

consider whether he could consider assault consummated by a 

battery as an LIO of both sexual assault and abusive sexual 

contact. Notwithstanding a defense objection, the military 

judge found that assault consummated by a battery was an LIO of 

both of these offenses and found the appellant guilty of the 

lesser included offense of assault consummated by a battery for 

Specifications 1, 2, 4, 5 and 6 of the Additional Charge. 

Improvident Plea

A military judge’s acceptance of a guilty plea is reviewed 

for an abuse of discretion. United States v. Inabinette, 66 

M.J. 320, 322 (C.A.A.F. 2008). A military judge abuses his 

discretion in accepting a guilty plea where there is a 

substantial basis in law or fact for questioning the plea. Id. 

Questions of law arising from a guilty plea are reviewed de 

novo. Id. Whether a plea is provident depends on an 

appellant’s understanding of the elements of his crime as 

explained to him by the military judge. United States v. Craig, 

67 M.J. 742, 744 (N.M.Ct.Crim.App. 2009), aff’d, 68 M.J. 399 

(C.A.A.F. 2010) (per curiam). If the explanation is inaccurate 

or incomplete, we must then look to the entire record to 

determine whether “the accused knew the elements, admitted them 

freely, and pleaded guilty because he was guilty.” United 

States v. Jones, 34 M.J. 270, 272 (C.M.A. 1992) (citation 

omitted). Our focus in this later inquiry is on the appellant’s 

awareness of the facts and law rather than on the military 

judge’s “technical listing of the elements.” United States v. 

Redlinski, 58 M.J. 117, 119 (C.A.A.F. 2003). 

The elements of a lawful general order violation are: 

(1) that there was in effect a certain lawful general 

order or regulation; 

(2) that the appellant had a duty to obey it; and, 

(3) that the appellant violated or failed to obey the 

order or regulation. 

MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), Part IV, ¶ 

16b(1). 

The appellant initially pled guilty to two violations of 

Article 92, UCMJ: a violation of Paragraph 4(a), Marine Corps 

Order 1000.9A for wrongfully sexually harassing LCpl MS; and a 

violation of Article 1165, U.S. Navy Regulations prohibiting 

fraternization between enlisted members. The military judge 
6

accepted the appellant’s guilty plea to violating Article 1165, 

but did not find the appellant’s plea provident to violating 

Marine Corps Order 1000.9A and entered a not guilty plea on his 

behalf but later found him guilty of the offense after trial on 

the merits. On appeal, the appellant argues that the military 

judge erred in accepting the appellant’s guilty plea to a 

violation of Article 1165 because Article 1165 does not prohibit 

unduly familiar relationships between enlisted members. 

Contrary to the appellant’s argument, Article 1165 does indeed 

prohibit such relationships. 

When prejudicial to good order and discipline or 

of a nature to bring discredit on the naval service, 

personal relationships between officer members or 

between enlisted members that are unduly familiar and 

that do not respect differences in grade or rank are 

prohibited. Prejudice to good order and discipline or 

discredit to the naval service may result from, but 

are not limited to, circumstances which: –

a. call into question a senior’s objectivity; 

b. result in actual or apparent preferential 

 treatment;

c. undermine the authority of a senior; or 

d. compromise the chain of command. 

Article 1165, U.S. Navy Regulations, dated 14 Sep 1990 (emphasis 

added). 

The military judge engaged in an in-depth discussion of 

Article 92, UCMJ, and Article 1165, U.S. Navy Regulations with 

the appellant. The discussion began broadly with a listing and 

explanation of the elements of Article 92, UCMJ, and then 

focused on the appellant’s understanding of Article 1165, his 

duty to obey it, and a breakdown of the actions the appellant 

believed proved his guilt. Accordingly, we find no basis in law 

or fact to question the appellant’s plea to Specification 2 of 

Charge I. 

Conviction on a Lesser Included Offense

The appellant claims that the military judge erred in 

finding that assault consummated by a battery is an LIO of both 

abusive sexual contact and sexual assault. More specifically, 

the appellant asserts that assault consummated by a battery is 

not an LIO of those offenses because assault consummated by a 

battery contains a lack of consent element that the charged 

Article 120 offenses do not, thus failing the elements test. 
7

Having carefully considered the appellant’s arguments and the 

holdings of our sister courts, who have addressed similar 

arguments made with respect to older versions of Article 120,3 we 

find this assignment of error to be without merit. 

Whether an offense is an LIO of another is a question of 

law we review de novo. United States v. Miller, 67 M.J. 385, 

387 (C.A.A.F. 2009). 

“An accused may be found guilty of an offense necessarily 

included in the offense charged. . .”, so long as the elements 

test is met. Art. 79, UCMJ.

Under the elements test, one compares the elements of 

each offense. If all of the elements of offense X 

are also elements of offense Y, then X is an LIO of 

Y. Offense Y is called the greater offense because 

it contains all of the elements of offense X along 

with one or more additional elements. 

United States v. Jones, 68 M.J. 465, 470 (C.A.A.F. 2010). The 

elements test does not require that the greater offense and the 

alleged LIO employ identical statutory language, United States 

v. Alston, 69 M.J. 214, 216 (C.A.A.F. 2010), but merely that the 

LIO is a “subset” of the greater offense, United States v. 

Bonner, 70 M.J. 1, 3 (C.A.A.F. 2011), and therefore “one cannot 

prove the greater offense without proving the lesser, United

States v. Neblock, 45 M.J. 191, 201 (C.A.A.F. 1996) (Cox, C.J., 

concurring in part and in the result) (emphasis added).”. 

 

3 We are aware of the debate among our sister courts with regard to LIOs in 

Article 120 offenses. See e.g., United States v. Wagner, No. 20111064, 2013 

CCA LEXIS 573, unpublished op. (Army Ct.Crim.App. 29 Jul 2013) (holding that 

assault consummated by a battery and wrongful sexual contact are LIOs of 

aggravated sexual assault because “consent” and “permission” as used in the 

statutory language of Article 120 are synonymous and any grammatical 

difference is “not one of substantive import”), aff’d, 2014 CAAF LEXIS 816 

(C.A.A.F. Aug. 4, 2014); United States v. Johanson, 71 M.J. 688, 693 

(C.G.Ct.Crim.App. 2012) (holding that assault consummated by a battery and 

wrongful sexual contact are LIOs of abusive sexual contact charged under a 

“substantially incapable” theory because “a lack of consent is inherent in 

substantial incapability of declining participation. . . Assault consummated 

by a battery is also included”); United States v. Pitman, __ M.J. __, 2011 

CCA LEXIS 93 at *11 (A.F.Ct.Crim.App. 19 May 2011) (holding that wrongful 

sexual contact is an LIO of aggravated sexual assault because “an allegation 

that a victim is compelled to submit to sexual acts by force clearly includes 

as a subset that the victim is not consenting”); cf. United States v. Barlow, 

__ M.J. __, 2014 CCA LEXIS 166 (A.F.Ct.Crim.App. 13 Mar 2014) (holding that 

wrongful sexual contact is not an LIO of abusive sexual contact because 

wrongful sexual contact requires proof of an element (i.e., “without 

permission”) that abusive sexual contact does not), review denied, __ M.J. 

__, 2014 CAAF LEXIS 1055 (C.A.A.F. Oct. 31, 2014).
8

In addition to satisfying the elements test, we must also 

find that the appellant was on notice that Article 128 was an 

LIO of Article 120 as charged. Therefore, our analysis will 

begin with an application of the elements test, followed by a 

discussion of the factors this court applied in determining 

whether the appellant had sufficient notice to defend against 

the LIO, thereby satisfying any due process concerns.

a. Sexual Assault

Under Article 120(b)(1), UCMJ, a person commits sexual 

assault by: (1) committing a sexual act upon another person; and 

does so by (2) threatening or placing that other person in fear 

or by causing bodily harm to that other person. Under Article 

128, UCMJ, a person commits assault consummated by a battery if 

he: (1) did bodily harm to a certain person; and, (2) the bodily 

harm was done with unlawful force or violence. Art. 128, UCMJ. 

We begin by comparing the elements of sexual assault and 

assault consummated by a battery. First, sexual assault and 

assault consummated by a battery both include as an element the 

touching of another person. Under sexual assault the touching 

must be a sexual act, whereas under assault consummated by a 

battery the touching need only be offensive. MCM, Part IV ¶¶ 

45(b)(1) and 54 (c)(1)(a) respectively. Second, both offenses 

require the touching to be intentional. Finally, both statutes 

require that the victim either did not or could not consent to 

the touching. In the context of sexual assault, “a person 

cannot consent while under threat or fear. . . .” Id. at ¶45 

(g)(8)(B). In the context of assault consummated by a battery, 

the Government must prove “that no legally cognizable reason 

[such as consent] existed that would excuse or justify the 

contact.” Bonner, 70 M.J. at 3. While the language is 

different, the effect is the same. One cannot prove sexual 

assault by threatening or placing that other person in fear 

without necessarily proving assault consummated by a battery, 

because one cannot prove a legal inability to consent without 

necessarily proving a lack of consent. Accordingly, we find 

assault consummated by a battery to be an LIO of sexual assault 

under Article 120(b)(1), UCMJ (2012 ed.). 

b. Abusive Sexual Contact

The military judge also found that assault consummated by a 

battery was an LIO of the abusive sexual contact charges based 

on the record. Record at 316-17. Applying the same analysis as 

above, we agree. Under Article 120(d), UCMJ:
9

Any person subject to this chapter who commits or 

causes sexual contact upon or by another person, if to 

do so would violate subsection (b) (sexual assault) 

had the sexual contact been a sexual act, is guilty of 

abusive sexual contact and shall be punished as a 

court-martial may direct. 

 

Because the abusive sexual contact charges in this case 

were all based upon sexual contacts that would have violated 

Article 120(b)(1), UCMJ, sexual assault by threatening or 

placing that other person in fear, our analysis in the preceding 

section is equally applicable here. Accordingly, we find 

assault consummated by a battery to be an LIO of abusive sexual 

contact, when that offense would have violated Article 

120(b)(1), UCMJ, had the sexual contact been a sexual act. 

c. Due Process Notice of the LIO 

The Fifth Amendment requires that “‘an accused be on notice 

as to the offense that must be defended against, and that only 

lesser included offenses that meet these notice requirements be 

affirmed by an appellate court.’” Jones, 68 M.J. at 468 

(quoting United States v. Miller, 67 M.J. 385, 388 (C.A.A.F. 

2009)). “The due process principle of fair notice mandates that 

‘an accused has a right to know what offense and under what 

legal theory’ he will be convicted; an LIO meets this notice 

requirement if ‘it is a subset of the greater offense alleged.’” 

Id. (quoting United States v. Medina, 66 M.J. 21, 26-27 

(C.A.A.F. 2008)). 

The logic of our superior court’s holdings in Medina and 

Jones is evident in the case at bar. The appellant was charged 

with two Article 120, UCMJ, offenses alleging that he committed 

sexual acts and had sexual contact with LCpl MS by placing her 

in fear that, through the abuse of military position, rank, or 

authority, he would negatively affect her military career. 

Here, the appellant threatened LCpl MS that she would receive 

nonjudicial punishment for drinking alcohol against medical 

advice and/or would not have her medical paperwork processed if 

she did not allow him sexual favors. Looking to the statutory

language, the UCMJ clearly states that a person cannot consent 

while under threat or fear. Art. 120(g)(8)(B), UCMJ. Simply 

reading the statute he was charged with violating would have 

informed the appellant that fear (and, by implication, a lack of 

consent) would play a major role in the Government’s case.
10

Another source of notice in this case comes from the Manual 

for Courts-Martial. Although the President has not yet signed 

an Executive Order amending the Manual to address elements, 

lesser included offenses, and sample specifications for the 

newest version of Article 120, UCMJ, the Manual does contain a 

note suggesting that practitioners use Appendix 28, which 

contains the previous version of Article 120 and all of its 

accompanying provisions, as a guide.4

 Turning to that appendix, 

one finds that assault consummated by a battery is listed as an 

LIO for both aggravated sexual assault and abusive sexual 

contact. See MCM, Appendix 28, ¶ 45d(3)(b)) and ¶ 45d(8)(a). 

For the reasons stated above, we find that the appellant 

had ample notice that assault consummated by a battery is an LIO 

for both sexual assault and abusive sexual contact. 

d. Variance

In addressing this assignment of error we also consider, 

though not raised by either party on appeal, whether the 

military judge's special findings indicate a variance between 

the acts the appellant was charged with, and the basis on which 

the military judge convicted him. Specifically, the appellant 

was charged with committing sexual contact “by placing [LCpl MS] 

in fear that, through the use or abuse of military position, 

rank, or authority, he would affect her military career” and 

committing a sexual act “by placing [LCpl MS] in fear that, 

through the use or abuse of military position, rank, or 

authority, he would affect her military career.” Charge Sheet. 

However, while the military judge states that he found the 

appellant "did not expressly place [LCpl MS] in fear of him 

taking action that would affect her career,” the context and 

circumstances surrounding the incident were such that LCpl MS 

was, in fact, fearful of what could happen to her and her 

military career if she resisted the appellant’s sexual advances. 

This fear, combined with her oral protests allow this court to 

also find that “it was not reasonable for the [appellant] to 

have believed that [LCpl MS] was consenting.” AE XLI. 

When deciding this question we do not look simply at the

cited language, but rather at the special findings as a whole. 

The cited language was confined to the final section of AE XLI

setting forth the military judge’s general findings relating to 

“the whole of the evidence.” With the exception of the 

 

4 While the court understands that the Manual’s listing of LIOs is purely 

guidance, Jones, 68 M.J. at 465, we nonetheless find that guidance 

significant for the purpose of providing notice. 
11

introductory section, all of the other sections were directed at 

specific specifications and with respect to Additional Charge I 

and its specifications said the touchings were “offensive to 

[LCpl MS] as evidenced by her testimony that it was unwanted and 

offensive;” that the “contact was done with unlawful force and 

violence in that [LCpl MS] did not consent to the touching”; 

that she “told the accused ‘no’;” that the “circumstances 

surrounding the [touchings] were such that it was not reasonable 

for the [appellant] to have believed that [LCpl MS] was 

consenting;” that “[s]he was crying”; and that she “indicated 

that she was married and that she did not want to engage in 

sexual [touching].” AE XLI. When read together, we find that 

the cited language does not indicate an impermissible variance, 

but rather is merely a listing of additional factors that also 

indicate that LCpl MS was motivated by fear. Such a listing 

does not negate the military judge's finding that there was 

ample evidence to prove, beyond a reasonable doubt, that LCpl MS 

was afraid the appellant would “affect her military career,” as 

charged. Having carefully reviewed the record, we are also 

convinced beyond a reasonable doubt that while the appellant 

“did not expressly place LCpl {MS} in fear of him taking action 

that would affect her career if she did not consent or threaten 

her,” he “pressured her in an unrelenting manner” and made LCpl 

MS fearful that the appellant’s status as an SNCO would enable 

him to use his rank and authority to have her punished for 

drinking against her doctor’s orders and withhold further 

processing of her medical paperwork if she did not comply with 

his repeated requests for sexual favors. This fear precluded 

her consent. Accordingly, we find this issue to be without 

merit.

Legal and Factual Sufficiency

The second assignment of error claims that the findings of 

guilt to communicating indecent language and assault consummated 

by a battery are legally and factually insufficient. 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 Government, any rational trier of fact 

could have found the elements of the offense beyond a reasonable 

doubt.” United States v. Dobson, 63 M.J. 1, 21 (C.A.A.F. 2006) 

(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). When 

testing for legal sufficiency, this court must draw every 

reasonable inference from the record in favor of the 
12

prosecution. United States v. McGinty, 38 M.J. 131, 132 (C.M.A. 

1993); United States v. Blocker, 32 M.J. 281, 284 (C.M.A. 1991). 

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, the 

members of [this court] are themselves convinced of the 

accused’s guilt beyond a reasonable doubt.” United States v. 

Turner, 25 M.J. 324, 325 (C.M.A. 1987). Proof beyond a 

reasonable doubt does not mean that the evidence must be free of 

conflict. United States v. Goode, 54 M.J. 836, 841 

(N.M.Ct.Crim.App. 2001). 

In this case, the evidence of the appellant’s guilt with 

regard to indecent language is clear. The appellant orally 

communicated certain language to LCpl MS, as evidenced through 

LCpl MS’s testimony that the appellant approached her from 

behind and then said “I just jizzed (sic) on myself.” Record at 

199. The language was indecent in that it referred to sexual 

conduct; it was unwelcomed, vulgar, and offensive; and it took 

place near LCpl MS’s workplace while at least one of them was in 

uniform. Under the circumstances, the appellant’s language was 

prejudicial to good order and discipline because it was made by 

a married SNCO to a married junior Marine. 

On the Article 128 specifications, the Government presented 

testimonial evidence from LCpl MS and the audio recording she 

made of the incident with the appellant. The audio showed that 

LCpl MS was scared and crying, that she reminded the appellant 

she was married, she repeatedly told him “no,” and tried to push 

the appellant away multiple times. Moreover, although the 

military judge found that the appellant “did not expressly place 

[LCpl MS] in fear of him taking action that would affect her 

career,” the circumstances surrounding the incident were such 

that “it was not reasonable for the [appellant] to have believed 

that [LCpl MS] was consenting.” AE XLI. 

After carefully reviewing the record of trial and 

considering the evidence in the light most favorable to the 

Government, we are convinced that a reasonable fact-finder could 

have found all the essential elements to both indecent language 

and assault consummated by a battery beyond a reasonable doubt. 

Furthermore, after weighing all the evidence in the record of 

trial and having made allowances for not having personally 

observed the witnesses, we are ourselves convinced beyond a 

reasonable doubt of the appellant’s guilt.
13

Unreasonable Multiplication of Charges

We review a military judge’s decision to deny relief for an 

unreasonable multiplication of charges under an abuse of 

discretion standard. United States v. Campbell, 71 M.J. 19, 22 

(C.A.A.F. 2012). A military judge abuses his discretion “when

he is incorrect about the applicable law, or when he improperly

applies the law.” United States v. Roberts, 59 M.J. 323, 326

(C.A.A.F. 2004). The five-factor framework for analyzing

unreasonable multiplication of charges is provided by the

following questions:

(1) did the accused object at trial that there was an

unreasonable multiplication of charges;

(2) is each charge and specification aimed at

distinctly separate criminal acts;

(3) does the number of charges and specifications

misrepresent or exaggerate the appellant’s

criminality;

(4) does the number of charges and specifications

unreasonably increase the appellant’s punitive

exposure; and,

(5) is there any evidence of prosecutorial

overreaching or abuse in the drafting of the charges? 

United States v. Quiroz ̧ 55 M.J. 334, 338-39 (C.A.A.F. 2001).

When presented with the appellant’s request to merge six

specifications and two charges, the military judge responded

with the following:

I’ve had a chance to deliberate on the motion

from the defense and make the following findings and

conclusions. With regard to merger of the 128

offenses, I find that each specification is aimed at a

distinct act separated by time, discussion between the

accused and the complaining witness, location of some

of the specifications, and protests by the complaining

witness.

I do not see this as an exaggeration of

criminality of the accused or of prosecutorial

overreaching. Although the acts occur over a fairly

short time span, there is time and was time for

reflection between each act. I further note that

since this is an [sic], not a member’s trials, the
14

Court stands in a much better position to recognize

the sentencing implications of multiple charges

occurring over a short timeframe. Accordingly, I will

not merge the Article 128 specifications.

With regard to merging Specifications 1 and 2 of

Charge I, I find that each specification is aimed at a

distinct statutory goal. Sexual harassment protects

against workplace conduct while fraternization guards

against improper senior-subordinate relationships

among other reasons. I again note that the Court can

and will take into consideration the overlapping

conduct in both specifications. The test is not that

any multiplication of charges is wrong, but that an

unreasonable multiplication of charges is prohibited. 

Record at 325.

Based on the appellant’s objection above, there is no

dispute that the first Quiroz criterion favors the appellant. 

As to the remaining criteria, we are in agreement with the trial

judge. With the second criterion in particular, it is possible

to have distinct and discrete acts occur throughout the course

of a single evening and a single location. United States v.

Paxton, 64 M.J. 484, 490-91 (C.A.A.F. 2007).5

 Accordingly, we

find that the military judge did not abuse his discretion by

determining that there was not an unreasonable multiplication of

charges, and we find this assignment of error to be without

merit.

Sentence Appropriateness

The appellant argues that his sentence to three years’ 

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

discharge was inappropriately severe. 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 

 

5 In Paxton, a father proceeded from watching his daughter in the bathroom, to

tucking her into bed, to touching her breasts, to penetrating her digitally,

to having her perform oral sodomy, to ultimately raping her. 64 M.J. at 490-

91. Between each sexual act, the daughter protested and the course of events

all occurred in the same evening and in the same location. Id. at 490. The

court found that each of the sexual acts served as a legitimate basis for a

separate charge and was not an unreasonable multiplication of charges. Id.

at 491.
15

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)).

While we have a great deal of discretion in determining 

whether a particular sentence is appropriate, we are not 

authorized to engage in exercises of clemency. United States v. 

Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999). 

After review of the entire record, we find that the 

sentence is appropriate for this offender and his offenses. The 

appellant sought and obtained sexual favors from a vulnerable 

subordinate Marine who was facing medical and possible 

disciplinary issues. A married Marine with over 10 years of 

active duty service, the appellant’s actions failed to comply 

with the expectations of a senior enlisted Marine leader, and 

his behavior reflected great discredit upon the service. 

Consequently, we conclude that granting sentence relief at this 

point would be to engage in clemency, a prerogative reserved for 

the convening authority. 

Conclusion

The findings and the sentence as approved by the CA are 

affirmed. 

Senior Judge MCFARLANE and Judge HOLIFIELD concur. 

For the Court

 

 

R.H. TROIDL

Clerk of Court