# United States Navy

**- Marine Corps**  **Court of Criminal Appeals**

_________________________



### UNITED STATES Appellee

v.

Hugo J. SPINOZA Lieutenant, (O

- 3) , U.S. Navy Appellant

_____________ ____________



### No. 201700236

_________________________

Appeal from the United St ates Navy

- Marine Corps Trial Judiciary

Argued: 13 August 2018

— Decided: 4 February 2019

_________________________

Military Judge s : Captain Beth Payton

- O ’ B rien, JAGC, USN (arraignment);
C aptain Paul C. Leblanc , JAGC, USN (trial)

. Approved S entence: Dismiss al and a r eprimand. 1 Sentence a djudged

21 March 2017 by a general court

- martia l convened at Naval Station San Diego, California

, consisting of officer members

. For Appellant : Major Maryann N. McGuire , US MC (argued)

. For Appellee : Captain Luke Huisenga, U SMC ( argued ) ;

Major Kelli A. O’Neil, USMC (on brief).

_________________________

1 In our decretal paragraph , we disapprove the r eprimand.United States v. Spinoza , No. 201700236

2 This opinion does not serve as binding precedent,

but may be cited as persuasive authority under

NMCCA Rule of Practice and Procedure 30.2

_________________________

Before W OODARD, TANG

, and HITESMAN

, 2 Appellate Military Judges

TANG

, Judge:

A general court

- martial convicted the appellant, contrary to his pleas, of stalking, assault, communicating a threat, fraternization, and unlawful entry
in violation of Article s 120 a, 128, and 134 , Uniform Code of Military Justice (UCMJ), 10 U.S.C. § § 920 a, 928, and 934

. After findings, t he military judge conditionally dismissed the assault and communicating a threat charges as unreasonabl y multiplied with the stalking charge

. 3 The panel se ntenced the appellant to a reprimand and a dismissal. The convening authority a pproved the adjudged sentence and

, except for the dismissal, ordered it executed.

The appellant asserts three assignments of error , which we have reordered : ( 1 ) the evidence is factually insufficient for his unlawful entry conviction; ( 2 ) the evidence is factually insufficient for his stalking conviction ; and (3) his defense counsel were ineffective for failing to seek suppression of evidence from his cell phone

. We disagree

. Add itionally , although not raised by the parties, we note multiple errors in the Court

- Martial Order (CMO)

. After careful consideration of the entire record, and in the interest of judicial economy, we will take appropriate action in our decretal paragraph.



### I. B ACKGROUND

In J uly 2015, the appellant

, a commissioned officer, met Sonar Technician Surface Third Class ( STG3 ) AI while working as an Uber driver

. H e subsequently engaged in two separate consensual sexual encounters with her even though he knew she was a junior enlisted Sailor

. In August 2015, while out drinking with STG3 AI

, the appellant became heavily intoxicated

. After STG3 AI helped the appellant back to his residence

, s he claims h e sexually
assaulted her. 4

2 Senior Judge Jones participated in the oral argument. However, final action
was not taken in this case until after he detached from the court.

3 Appellate Exhibit (AE) XXVII; Record at 996

- 98.

4 The appellant was acquitted of this charge.United States v. Spinoza , No. 201700236

3 The Naval Criminal Investigative Service (N CIS) opened an investigation into the alleged sexual assault. On 9 S eptember 2015, Special A gent M sought and received a C ommand A uthorization for S earch and Seizure ( Command Authorization ) of : (1) the appellant ’ s cell phone for digital evidence of his imp roper relationship with STG3 AI ; and (2) his person for his
DNA. 5 Later t hat same day, Special Agent M interrogated the appellant. 6 Near the end of the interview, knowing that he had already secured the
Command Authorization

, Special Agent M sought consent from the appellant to search his phone. Special Agent M told the appellant, “ Because your primary method of communication with [STG3 AI ] was through your phone

. . . I ’ d like to go through your phone, and search your phone

. . . and c onduct a thorough sea rch. ” 7 The appellant asked “ A re you just going to look at text messages between [STG3 AI] and I or― ” 8 Special Agent M responded :

I ’ m going to look for digital evidence of your relationship. Everything from

. . . the Uber app when you guys met, to refine
do wn when that happened, to anything that pertains to the investigation. But your phone is going to hold digital evidence of your communications with her and all those things. 9

The appellant replied, “ T hat ’ s fine

. ” 10 After he orally consented to a
search of h is phone, t he appellant signed a Permissive Authorization for
Search and Seizure form ( Permissive Authorization )

. After d igital extraction of the appellant ’ s phone proved unsuccessful

, NCIS investigators conducted a manual review of the phone. During the

r eview

, investigators took over 140 screen shots of text message conversations between the appellant and ten other women . These conversations
occurred during the same time period of the appellant ’ s interactions with
STG3 AI

— July to September 2015. N one of t he texts were responsive to the allegations of sexual assault made by STG3 AI. But t he texts did describe the

5 The Command Authorization did not explicitly incorporate Special Agent M’s request to search the appellant’s cell phone, as Special Agent M had detailed in his supporting affidavit. However, we need not evaluate the validity of the Command Authorization because the appellant consented to a search of his cell phone.

6 The video recording of this interview was entered into evidence as Prosecution Exhibit (PE) 13.

7 PE 13 at 39:55.

8 Id. at 40:20.

9 Id. at 40:23.

10 Id. at 40:40.United States v. Spinoza , No. 201700236

4 appellant ’ s aggressive sexual behavior, his behavior while intoxicated, and
his use of Uber customer information for personal purposes

. The invest igators used th e information gleaned from the texts to identify and interview

two women , L TJG MM and SM

.The appellant met LTJG MM through mutual friends, and the two socialized in group settings. One evening in April or May 2014, the appellant showed up uninvited at LTJG MM ’ s apartment where she was h osting a party for a friend . LTJG MM did not invite the appellant i n to her apartment
but told him she would see him later at some local bars she planned to patroniz e with h er friends

. But w hen t he appellant a pproached LTJG MM at one of the bars that night

, she gave him , as she termed it, the cold shoulder. Ultimately, LTJG MM returned to her apartment with a nother man she met that evening . The two retired to her bedroom. Sometime later

, the appellant
burst int o LTJG MM’s apartment and rushed up the stairs toward LTJG
MM’s bedroom. LTJG MM ’ s roommate , a female junior Naval Officer, tried blocking the appellant f rom getting into LTJG MM ’ s room, but he kept trying to push past her. The appellant was very angry tha t LTJG MM was in bed with the man. He repeatedly yelled at her, calling her a “ slut [,] and a bitch [,]
and a whore. ” 11 The two women and L T J G MM ’ s male companion responded by repeatedly yelling and cursing at the appellant to leave. Finally, the appellant “ s tormed out of the apartment. ” 12 Both women testified the incident terrified them

. The NCIS investigators identified SM from a text the appellant had sent
her apologizing for his behavior while intoxicated. When interviewed by
NCIS

, SM related that she had e ngaged in a “ ca s ual romantic relationship ” with the appellant from June through August of 2015

, and that he assaulted
her in July 2015

. 13 SM told investigators that she had been walking down the
street with another man when the appellant saw her and aggress ively grabbed her arm , trying to pull her a way from her date, and told her in a loud
voice that she had to go home with him. SM ’ s date came to her defense

. Eventually, nearby police intervene d to separate the appellant and SM ’ s date. SM testified the incid ent left her “ scared and nervous. ” 14 But the appellant was not done.

11 Record at 446.

12 Id. at 459.

13 Id. at 740.

14 Id. at 742.United States v. Spinoza , No. 201700236

5 Over the rest of the night and into the morning, the appellant called and
texted SM more than thirty times. Among other things, he called her vile names, threatened to tell her son she was a “ whore, ” and threatened to break
a window in her house and kill who m ever she was in bed with. His threats
left SM horrified and shaking. At one point, s he texted the appellant warning
him not to come to her house or she would call the police

. SM finally went home around 2 : 3 0 a.m. Soon thereafter, the appellant showed up and began yelling at her and pounding on her door trying to get her to talk to him. Ultimately, he left

— but only after SM pacified him by agreeing to see him again

. Additional facts nece ssary to resolution of the AOE s are included below.



### II. D ISCUSSION

A. Factual S ufficiency

The appellant asserts his convictions for unlawful entry and stalking are factually insufficient. We disagree.

We review questions of factual sufficiency de novo . Art 66(c) , UCMJ; United States v. Washington , 57 M.J. 394, 399 (C.A.A.F. 2002). 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] c onvinced of appellant ’ s guilt beyond a reasonable doubt. ” United
States v. Rosario , 76 M.J. 114, 117 (C.A.A.F. 2017) (citation, internal quotation marks, and emphasis omitted). In conducting this unique appellate function, we take “ a fresh, impartial look at the evidence, ” applying “ neither a presumption 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. ” Washington , 57 M.J. at 399. Proof beyond a reasonable doubt does not mean, however, that the
evidence must be free from conflict. United States v. Goode , 54 M.J. 836, 841 (N

- M. Ct. Crim. App. 2001).

1. Unlawful entry

The appellant was convicted of unlawful ly ent ering LTJG MM ’ s res idence in violation of Article 134, UCMJ

. T he government was required to prove :
(1) That the appellant entered the dwelling house of LTJG
MM ;
(2) That such entry was unlawful; andUnited States v. Spinoza , No. 201700236

6 (3) That , under the circumstances, the conduct of the appellant was of a n ature to bring discredit upon the armed forces. 15

The appellant does not dispute that he entered the dwelling house of
LTJG MM. Instead, he argues his entry was neither unlawful nor service discrediting.

“ An entry is ‘ unlawful ’ if made without the consent o f any person authorized to consent to entry or without other lawful authority. ” 16 The appellant contends his entry was lawful because he entered LT J G MM ’ s apartment to prevent a crime

— the s exual assault of a drunken LTJG MM by her male companion. This claim is not supported by the record

. Both LTJG MM and
her roommate testified that LTJG MM only consumed a few drinks that entire evening and was not overly intoxicated. More importantly, t he record
shows the appellant acted out of possessiveness and rage, not concern for
LTJG MM ’ s well

- being. After repeatedly being told to get out of LT JG MM ’ s apartment , he yelled at her, calling her “ a slut and a bitch and a whore ” before eventually leaving. 17 We conclude from these statements that the appellant ’ s motive in unl awfully entering LTJG MM ’ s apartment was jealousy and not to pr otect her from a sexual assault.

The appellant next avers his actions were not service discrediting because

“ [t]here is no evidence [ his ] conduct ever made its way into the public domain. ” 18 T h is is factually incorrect. LTJG MM ’ s male companion was a
civilian

. Regardless, our superior court has held that

, when proving that conduct is service discrediting

, public awareness of the conduct is not always required.

[ E ]vidence that the public was actu ally aware of the conduct is not necessarily required . Furthermore, proof of the conduct itself may be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that, under all the circumstances, it was of a nature to bring discredit up on the armed
forces

. United States v. Phillips , 70 M.J. 161, 163 (C.A.A.F. 2011) (emphasis in original)

.

15 10 U.S.C. § 934; M ANUAL FOR C OURTS

- M ARTIAL
, U NITED S TATES (201 6 ed.) (MCM), Part IV, ¶ 111.b; AE CIII at 9; Charge Sheet.

16 MCM, Part IV, ¶ 111.c.

17 Record at 446.

18 Appellant’s Brief of 5 Jan 2018 at 46.United States v. Spinoza , No. 201700236

7 Here, the appellant unlawfully entered LTJG MM ’ s home in the middle of the night. He shoved past LTJG MM ’ s roommate to get to LTJG MM , eventually bur sting into her bedroom

. He refused to leave the home and shouted profanities. We concur with the government that this “ vulgar

, terrifying
violation of a female officer ’ s privacy is the sort of gross personal misconduct the very nature of which is service d iscrediting. ” 19 After weighing all the
evidence and making allowances for not having personally observed the witnesses, we are convinced beyond a reasonable doubt that the appellant is guilty of unlawful entry

.

2. Stalking

The appellant was convicted of stalki ng SM in violation of Article 120a,
UCMJ

. The government was required to prove :
(1) That the appellant wrongfully engaged in a course of conduct directed at SM that would cause a reasonable person to fear bodily harm, to wit: unlawfully grabbing SM on the arm with his hand, sending her text messages threatening to break into her home, and going to her home and attempting to enter it;

(2) That the appellant knew or reasonably should have known that SM would be placed in a reasonable fear of bodily harm; and

(3) That the appellant ’ s acts did induce SM to feel reasonable fear of bodily harm. 20

The appellant asserts that the government failed to prove any of the three
elements

. The appellant contends the government did not prove the first element
because there was no evidence he attempted to enter SM ’ s home. While the appellant did repeatedly bang on her door, yell at her to come outside and talk to him, and called her on the phone

, we agree that there is no evidence in
the record that he e ver attempted to ente r the home. Accordingly, w e disapprove the finding of guilty to the language “ and attempting to enter it

. ” We will take appropriate action on this language in our decretal paragraph.

Even w ith th is exception, we still find that the government proved beyon d
a reasonable doubt the first element

— that the appellant engaged in a course

19 Appellee’s Brief of 15 May 2018 at 38.

20 10 U.S.C. § 920a; MCM, Part IV, ¶ 45 a.b.; AE CIII at 5; Charge Sheet.United States v. Spinoza , No. 201700236

8 of conduct directed at SM that would cause a reasonable person to fear bodily
harm. A course of conduct includes “ a repeated conveyance of verbal threat s , written threats, or thr eats implied by conduct, or a combination of such threats, directed at or towards a specific person. ” 21 And “ [t]he term ‘ repeated, ’ with respect to conduct, means two or more occasions of such conduct. ” 22 Here, t he appellant accosted SM while she was on a da te with another man, grabbed her arm, and escalated the confrontation to the point that law
enforcement officials had to intervene. He repeatedly sent her text messages threatening to break her window, and to break into her home and kill who mever she was w ith . Further, he then traveled to her home

, beat on her door

, and yell ed at her. SM testified she was “ terrified, ” and “ shaking ” because she

“ [ a ] bsolutely ” feared the appellant was going to hurt her. 23 We conclude her fear of bodily harm was reasonable.

T he appellant also asserts the government failed to prove the second element

— that the appellant knew, or should have known, that his actions
would place SM in r easonable fear of bodily harm . The appellant makes three
assertions. First

, he claims that the mi sspellings in his texts that night prove
he was so drunk he did not know

— or could not have known

— the consequences of his actions. We disagree. H is course of conduct spanned several
hours . T he content of his threatening texts, his behavior at SM ’ s home , and his later expressions of remorse all show the appella nt knew or should have known the consequences of his actions towards SM. Second, the appellant
claims that because he had been engaged in a relationship with SM, his
actions c ould not cause SM to reason ably fear him. And t hird, the appellant avers that SM was only concerned for the safety of her son and nephew, who were present in the home, not her own safety. We reject these claims as not supported by the record.

Finally, the appellant argues that the government failed to prove the
third element

— that SM actually fear ed bodily harm. He claims that because SM used profanity directed at him that night , never called the police, eventually went to sleep, and continued to correspond with him after the inciden t
, she did not fear him

. But SM testified to the contrary

— that the appellant ’ s actions toward her caused her to be “ terrified, ” and “ shaking ” because she

“ absolutely feared the appellant was going to hurt her. ” 24 In fact, their encounter began with the appe llant assaulting her by grabbing her arm in

21 MCM, Part IV, ¶ 45 a.(b)(1)(B).

22 Id. at ¶ 45a. (b)(2).

23 Reco rd at 745.

24 Record at 745.United States v. Spinoza , No. 201700236

9 downtown San Diego

, a nd then the appellant texted SM, before arriving at her house , that three of his friends died that week and he hoped she would
suffer the same misfortune

. We find SM ’ s testimony compelling an d supported by the evidence in the record

. After weighing all the evidence and making allowances for not having personally observed the witnesses, we are convinced beyond a reasonable doubt that the appellant is guilty of stalking SM

.

B. Ineffective Assistanc e of Counsel

The appellant next claims that he received ineffective assistance of counsel because his trial defense counsel failed to seek suppression of evidence obtained from his cell phone . Specifically, the appellant claims his counsel

were deficient b ecause he claims a suppression motion would have resulted in
the exclusion of all evidence that related to the offenses of stalking SM, assaulting SM, and threatening SM . The appellant makes this claim because NCIS agents had no knowledge of the appellant ’ s relationship with SM before they searched the appellant ’ s cell phone. After reading the appellant ’ s messages with SM, agents interviewed her . SM described her relationship with the appellant and his offenses, and she provided screenshots of threatening

m essages the appellant sent her. Those messages, which were not found on the appellant ’ s phone, were later admitted at trial. We do not find the counsel

were ineffective.

We review claims of ineffective assistance of counsel de novo

. United
States v. Akbar

, 74 M.J. 364, 379 (C.A.A.F. 2015). The appellant bears the
burden and must clear “ a high bar ” to prevail on such a claim. Id. at 371. He must show: (1) that his counsel ’ s performance was deficient and (2) that, but
for his counsel ’ s deficient performance, there is a reasonable probability that the result of the proceeding would have been different. Id. (citing Strickland v. Washington , 466 U.S. 668, 688, 694 (1984)).

When a claim of ineffective assistance of counsel arises from counsel ’ s failure to move to suppress evidence, the appellant must show: (1) “ that there is a reasonable probability that such a motion would have been meritorious; ” and (2) “ that there is a reasonable probability that the verdict would have
been different absent the excludable eviden ce. ” United States v. Harpole, 77 M.J. 231, 236 (C.A.A.F. 2018) (internal quotation s omitted) (citing United States v. McConnell, 55 M.J. 479, 482 (C.A.A.F. 2001) ; United States v. Loving, 41 M.J. 213, 244 (C.A.A.F. 1994) (internal citation s omitted) )

. Und er the circumstances of this case, the appellant prevails only if he can show the military judge would have suppressed the results of the cell phone search

— holding that neither the command authorization nor the appellant ’ s consent justified the search

— and he must show that the military judge would alsoUnited States v. Spinoza , No. 201700236

10 have prohibited SM ’ s live witness testimony and admission of the text messages from her cell phone. 25 We find the appellant ’ s claim of error fails.

1. The scope of appellant ’ s consen t to search

The Fourth Amendm ent guarantees “ [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures

. . . . ” U.S. CONST. amend IV. A warrantless search is “ per se unreasonable under the Fourth Amendment

— subject only to a few specifically established and well

- delineated exceptions. ” Katz v. United States

, 389 U.S. 347, 357 (1967). Voluntary consent to search is one exception to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218 (1973).

A person givin g consent to search may limit his consent by placing limitations on “ time, place, or property. ” M ILITARY R ULE OF E VIDENCE 314(e)(2),
M ANUAL FOR C OURTS

- M ARTIAL
, U NITED S TATES (2016 ed.) . A person may also limit the scope of consent to search. However, the o nus is on the appellant to expressly limit the scope of his consent. Limitations will not be inferred, and
the appellant ’ s subjective intent does not control. See United States v. Wallace, 66 M.J. 5, 8 (C.A.A.F. 2008). “ The scope of a search is generally d efined by its expressed object. ” Florida v. Jimeno, 500 U.S. 248, 251 (1991) ( quoting United States v. Ross, 456 U.S. 798, (1982)). The scope of consent is determined by “ objective reasonableness, ” asking “ what would the typical reasonable person have unde rstood by the exchange between the officer and the suspect? ” Id. at 251 (internal quotations and citations omitted). A person may
withdraw consent “ at any time. ” M IL

. R. E VID

. 314(e)(2). However, the law
enforcement official is “ entitled to clear notice th at this consent has been
withdrawn. ” United States v. Stoecker, 17 M.J. 158, 162 (C

. M

. A. 1984). The appellant, through counsel

, withdrew consent on 30 October 2015

— after Special Agent M had already manually search ed his cell phone

. 26

The appellant further c ontends he limited the scope of his consent to “ his
communications ” with STG3 AI and information from the Uber app lication

. 27 We disagree.

When Special Agent M asked the appellant for consent to search his cell phone , he told the appellant he intended to c onduct a “ thorough search

. ” 28

25 The government did not present any text messages from the appellant’s cell phone. The government’s case was based on SM’s testimony and text messages she provided from her cell phone.

26 Appellant’s Motion to Attach, Appendix a t 10.

27 Appellant’s Brief of 5 Jan 2018 at 16.

28 Id. at 40:23.United States v. Spinoza , No. 201700236

11 The appellant specifically asked, “ Are you just going to look at text messages between [STG3 AI] and I or

― ” to which Special Agent M responded, that he
intended to look for “ digital evidence ” of their relationship, including in formation in the Uber application and “ anything that pertains to the investigation. ”

At that time, the investigation related to the appellant ’ s actions in using his position as an Uber driver to meet STG3 AI, cultivating an improper but
consensual sexual relationship with her, and ultimately allegedly sexually assaulting her after he bec a m e belligerently drunk in public. At no time did Special Agent M state he would only review communications between the appellant and STG3 AI. Nor did the appellant , a Lieu tenant and a graduate of the United States Naval Academy, ever expressly limit his consent to just
the search of his phone for his messages with STG3 AI or his Uber application

. After this exchange, the appellant completed a written consent form,
authorizi ng Special Agent M to search his cell phone in relation to an investigation into “ Article 120. ” Further, w hen completing the consent form, h e did not write any limitations on the consent form.

It was within the scope of the appellant ’ s consent , therefore, for Special Agent M to look for any witnesses who may have been present with the appellant and STG3 AI on the night of the alleged sexual assault. The record indicates STG3 AI kept trying to find the appellant ’ s friends when she
encountered him intoxicate d in public in downtown San Diego

. It was also
reasonable for Special Agent M to search for any statements the appellant may have made to others about his relationship with STG3 AI or her allegation of sexual assault. Such statements could be consistent or inconsistent
with his statements to NCIS

, and could be inculpatory or exculpatory.

Although the appellant claims Special Agent M engaged in a general search, “ indiscriminately rummag[ing] ” though the appellant ’ s cell phone, Special Agent M ’ s reporting in dicates he confined his search to the timeframe of the appellant ’ s relationship with STG3 AI. The appellant submitted to this

court Special Agent M ’ s report documenting his review of the appellant ’ s cell phone. 29 All entries describe messages sent between J uly 2015 and September 2015. 30 The appellant was convicted of having an improper relationship
with STG3 AI beginning in July 2015 , and STG3 AI accused him of sexually assaulting her on 1 August 2015. All screenshots of text messages with SM
were dated in Ju ly and early August 2015. The screenshots were arranged in reverse chronological order, the way they would have been presented in the

29 Appellant’s Motion to Attach, Enclosure (3), at 9

- 10.

30 Id.United States v. Spinoza , No. 201700236

12 appellant ’ s cell phone. The screenshots contained messages indicating a possible romantic and sexual relationship between the appellant and SM and
showed that SM felt “ insecure ” about the idea of sleeping with the appellant

. 31 Conducting an “ ex post reasonableness ” analysis, we find Special Agent M ’ s search to be reasonable within the scope of the appellant ’ s consent. United S tates v. Richards, 76 M.J. 365, 370 (C.A.A.F. 2017).

Having determined that Special Agent M ’ s search of the appellant ’ s cell phone was conducted within the scope of the appellant ’ s consent, we need not evaluate the validity of the Command Authorization. E ven assuming arguendo, the trial defense counsel could have successfully moved the court to suppress the search of the appellant ’ s cell phone

— rejecting both the Command Authorization and the appellant ’ s consent as bases for the search

— it
does not follow th at the court would also suppress the testimony of SM and disallow presentation of evidence from her cell phone.

2. Suppression of live witness testimony

The appellant ’ s counsel argues that if trial defense counsel moved to suppress the search of the appell ant ’ s cell phone, there would be no evidence to support three of the specifications, necessarily resulting in acquittal for stalking, assault, and communicating a threat

. 32 We disagree.

If a military judge suppresses evidence as a result of a Fourth Amendm ent violation, the judge must determine whether derivative evidence must likewise be suppressed. The general test is whether the taint of the initial illegality has been sufficiently attenuated. The Supreme Court elucidated the test for fruit of the poison ous tree in Wong Sun v. United States as: “ whether, granting establishment of the primary illegality, the evidence

. . . has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. ” 371 U.S. 471, 488 (1963) (internal quotations and citation omitted). M ILITARY R ULE OF E VIDENCE 311 governs military practice and contains our exclusionary rule , which excludes
evidence if “ exclusion

. . . results in appreciable deterrence of future unlaw ful searches or seizures and the benefits of such deterrence outweigh the costs to the justice system. ”

31 Id. , Enclosure (4), at 58.

32 Although the appellant was convicted of stalking, assault and battery, and communicating a threat, all in relation to SM, the military judge conditionally dismissed the specifications alleging assault and battery and communicating a threat on the basis that they constituted an unreasonable multiplication of charges with stalking.United States v. Spinoza , No. 201700236

13 When evaluating whether witness testimony must be suppressed as fruit of an illegal search, the court must apply the factors described by the Supreme C ourt in United States v. Ceccolini. 4 3 5 U.S. 268 (1978). The test is not
but

- for causation. See id. at 275. “ Witnesses are not like guns or documents which remain hidden from view until one turns over a sofa or opens a filing
cabinet. ” Id. at 276.

In eval uating whether witness testimony should be suppressed as fruit of the poisonous tree, the court must consider:

(1) The “ degree of free will exercised by the witness

, ” examining whether
the witness testified of her own free will or whether her testimony wa s

“ coerced or even induced by official authority ” as a result of the illegal search. Ceccolini, 435 U.S. at 276 , 279

. (2) Whether “ [s]ubstantial periods of time elapsed between the time of the illegal search and the initial contact with the witness, on th e one hand, and between the latter and the testimony at trial on the other; ” Id. at 279.

(3) Whether illegally seized evidence was used to question the witness; Id.

(4) Whether the law enforcement officer deliberately conducted an illegal search; See id. a t 280. 33

( 5 ) And the court must weigh the “ cost of permanently silencing ” the witness balanced against the deterrent effect against law enforcement misconduct. Id. at 280.

In assessing these factors, we find it unlikely that the military judge
would have s uppressed SM’s testimony even if he had suppress ed the results of the search of the appellant ’ s cell phone

. Fi r st, SM testified out of her own
free will. In fact, SM told NCIS agents the appellant contacted her even before NCIS agents interviewed her. The appellant informed her she was free

not to cooperate with law enforcement. Not only did she elect to submit to an interview, she revealed the appellant ’ s prior contact with her. S econd, nearly
three month s passed between the search of the appellant ’ s phone and SM ’ s first interview with NCIS in December 2015 , and an even longer period of

33 Our sister service co urts have summarized this factor as the “purpose and flagrancy” of the law enforcement conduct. See United States v. Jones, 64 M.J. 596 ( A. Ct. Crim. App. 2007), United States v. Mancini, No. 38783, 2016 CCA LEXIS 660 (A.F. Ct. Crim. App. 7 Nov 2016) (unpu b. op.). The Supreme Court evaluated whether the law enforcement agent “entered the shop or picked up the envelope with the intent of finding tangible evidence bearing on an illicit gambling operation,” or with “the intent of finding a willing and knowledg eable witness to testify against respondent.” Ceccolini, 435 U.S. at 280.United States v. Spinoza , No. 201700236

14 time until she testified at trial on 15 March 2017. 34 Third, t he agents did not
confront SM with the threatening text messages that were ultimately admitted at trial as Prose cution Exhibit 11A

— the threatening text messages were not found on the appellant ’ s cell phone, but rather on SM ’ s cell phone. The NCIS report documenting the agents ’ interview with SM does not indicate that they showed SM any messages at all, but shows tha t they interviewed her and that she gave them screenshots of her messages with the appellant. 35
H aving found the search was validly conducted within the scope of the appellant ’ s consent, we conclude there is no flagrant police misconduct. Finally, c onductin g a cost

- benefit analysis, we do not believe any possible good resulting from “ permanently silencing ” SM justifies any theoretical deterrent effect. Accordingly, we do not believe the trial outcome would have
been different if the trial defense counsel had raised this motion

. Therefore

, we find the appellant ’ s claim of ineffective assistance of counsel fails.

C. Sentence Reassessment

H aving disapproved language in Charge III, Specification 1

, we must now consider whether we can reassess the sentence. United S tates v. Winckelmann , 73 M.J. 11, 15

- 16 (C.A.A.F. 2013); United States v. Moffeit , 63 M.J. 40,

41

- 42 (C.A.A.F. 2006); United States v. Sales , 22 M.J. 305, 307

- 08 (C.M.A. 1986). After analyzing the four factors laid out by our superior court in Winckelmann, we can confidently and reliably determine that the appellant’s sentence would still include a dismissal and a reprimand.

Although, we believe that the appellant ’ s sentence of a dismissal and letter of reprimand are appropriate, in the interest of judicia l economy, we
nonetheless disapprov e the letter of reprimand in our decretal paragraph. We
do so because the letter of reprimand issued to the appellant by the convening authority references the disapproved language contained in Charge III, Specification 1

. 36

34 Both time periods are longer than those in United States v. Richards, 2016 CCA LEXIS 285 at *41 (A.F. Ct. Crim. App. 2 May 2016) (unpub. op.) (affirming the military judge’s deni al of a defense motion to suppress live witness testimony when the witness was first contacted 26 days after an illegal search and testified “over a year later.”). See also United States v. Mancini, 2016 CCA LEXIS 660 at *33

- 34 (A.F. Ct. Crim. App. 7 Nov 2 016) (unpub. op.) (finding a military judge would not have excluded live witnesses’ testimony when witnesses testified of “their own free will” “over a year after they were identified.”)

35 See AE XIX, Enclosure (B).

36 Specifically, the letter stated, in pe rtinent part, “Your misconduct consisted of wrongfully engaging in a course of conduct towards a civilian that included unlawful-United States v. Spinoza , No. 201700236

15 D. Error s in P romulgating O rder

An appellant is entitled to an official record accurately reflecting the results of his proceedings. United States v. Crumpley, 49 M.J. 538, 539 (N

- M. Ct. Crim. App. 1989). We test error in court

- martial orders under a har mless

error standard. Id

. At a minimum, a court

- martial promulgating order must contain the following information: (1) the type of court

- martial and the convening command; (2) a summary of all charges and specifications on which the appellant was arraigne d ; (3) the appellant ’ s pleas ; (4) the findings or disposition of all charges and specifications on which the appellant was arraigned ; (5) if adjudged, the sentence; and (6) a summary of the action taken by the CA in the

case. R.C.M. 1114(c)(1).

Although n ot raised as error, we note that the promulgating order is incorrect in the following ways:

(1) It refers to the c harges and s pecifications based on the numbering reflected in the amended cleansed charge sheet 37 rather than the charges and specifications a s numbered i n the charge sheets at the time the appellant was arraigned.

(2) It fails to reflect all charges and specifications on which the appellant was arraigned and entered pleas . The appellant entered pleas of not guilty to all charges and specificat ions

. (3) It fails to reflect the merger, consolidation, and dismissal of several charges and specification s which the military judge found to be an unreasonable multiplication of charges for findings. Based upon t his ruling, t he military judge dismissed C harge II, Specification 2, Charge IV, Specification 1, and Additional Charge I and its sole specification . The military judge merg ed the operative language of these offenses into a new consolidated sole specification of Charge II alleging the appellant ’ s a ggravated sexual contact against
STG3 AI. 38

ly grabbing her arm, threatening her and another individual, and attempting to enter her home, thereby inducing a reasonable fea r of bodily harm.” Punitive Letter of Reprimand of 17 Jul 2017.

37 AE CIV

.

38 The consolidated specification read: “In that Lieutenant Hugo J. Spinoza, U.S. Navy, Mine Countermeasures Squadron Three, on active duty, did, at or near San Diego, California, on or about 1 August 2015, commit sexual contact upon STG3, A.I., U.S. Navy, to wit: biting STG3 A.I.’s lower lip, neck, and nipple with his mouth, strangling STG3 A.I.’s neck with his hand until she lost consciousness, and bitingUnited States v. Spinoza , No. 201700236

16 ( 4 ) I t fails to state that after findings the military judge conditionally dismissed Charge I V, Specification 2 and Charge V I , Specification 1

, finding them to be an UMC for sentencing with Charge II I, Specificat ion 1

. ( 5 ) It does not correctly reflect the members ’ finding on the sole specification of Additional Charge II , for which the members excepted the word

“ M arch ” and substituted the word s “ on or about May

. ”

( 6 ) Finally, i t does not reflect that the appell ant was arraigned on and entered pleas of not guilty to the sole specification of Charge I and Charge III, Specification 2

. Nor does it reflect that the military judge entered findings of not guilty to these offenses pursuant to R.C.M. 917

. 39

The failure t o reflect the omitted information in the promulgating order was error; however, the error was harmless as it did not materially prejudice the appellant ’ s substantial rights. To ensure the appellant has an official record which accurately reflects his proce edings, in our decretal paragraph we will order that the supplemental promulgating order reflect the omitted
information.



### III. C ONCLUSION

After careful consideration of the record and briefs of appellate counsel

, we have determined that the findings and sentenc e as modified above are correct in law and fact and that no error materially prejudicial to the a ppellant’s substantial rights occurred. Art. 59(a) and 66(c), UCMJ. Accordingly, the findings and sentence , as modified above

, are AFFIRMED

. The supplemental order shall reflect the following : (1) An accurate summary of all charges and specifications on which the appellant was arraigned and reflect the pleas he entered to these offenses ; (2) An accurate summary of the findings or disposition of all offenses on which the appellant was arraigned and entered pleas ; and (3) the affirmed sentence of this court. Due to the extensive inaccuracies of the original CMO, the court has provided an aide in drafting the supplemental CMO in Appendix A to this opinion

. Chief J udge WOODARD and Judge HITESMAN concur.

STG3 A.I.’s vagina with his mouth, by unlawful force, to wit: grabbing STG3 A.I.’s hair and pulling her head back, holding STG3 A.I. down on the bed, and applying pressure on STG3 A.I’s neck with his left hand until she lost consciousness.”

39 The trial counsel improperly noted on the charge sheet that these offenses were withdrawn and dismissed without prejudice by the military judge. The legal effect of the military judge’s ruling is a finding of not guilty to the offenses. R.C.M. 917(f).United States v. Spinoza , No. 201700236

17 FOR THE COURT:

RODGER A. DREW, JR.
Clerk of CourtUnited States v. Spinoza , No. 201700236

18 Appendix A
Charge I: Violation of the UCMJ, Article 80

Plea: Not Guilty
Finding: Not Guilty pursuant to R.C.M. 917.
Specification: In that Lieutenant Hugo J. Spi noza, U.S. Navy, Mine Countermeasures Squadron Three, on active duty, did, at or near San Diego, California, on or about July 2015, unlawfully break and enter the dwelling house of Ms. S.M., with intent to commit assault therein.

Plea: Not Guilty
Finding: Not Guilty pursuant to R.C.M. 917.
Charge II: Violation of the UCMJ, Article 120

Plea: Not Guilty
Finding: Not Guilty
Specification 1: In that Lieutenant Hugo J. Spinoza, U.S. Navy, Mine Countermeasures Squadron Three, on active duty, did, at or near San D iego, California, on or about 1 August 2015, commit sexual contact upon STG3 A.I., U.S. Navy, to wit: biting her right nipple, by unlawful force, to wit: by strangling STG3 A.I. with his left hand and holding her down on the bed.

Plea: Not Guilty
Dispositi on: The specification was dismissed. However, the military judgemerged the operative language of this specification with the operative language from Charge II, Specification 2, Charge IV, Specification 1, and the sole specification of Additional Charge I, into the following specification under Charge II, alleging a violation of Article 120, UCMJ.
**Specification: In that Lieutenant Hugo J. Spinoza, U.S. Navy, Mine Countermeasures Squadron Three, on active duty, did, at or near San Diego, California, on or about 1 August 2015, commit sexual contact upon STG3, A.I., U.S. Navy, to wit: biting STG3 A.I. ’ s lower lip, neck, and nipple with his mouth, strangling STG3 A.I. ’ s neck with his hand until she lost consciousness, and biting STG3 A.I. ’ s vagina with his mo uth, by unlawful force, to wit: grabbing STG3 A.I. ’ s hair and pulling her head back, holding STG3 A.I. down on the bed, and applying pressure on STG3 A.I ’ s neck with his left hand until she lost consciousness.
Finding: Not Guilty.
Specification 2: In that Lieutenant Hugo J. Spinoza, U.S. Navy, Mine Countermeasures Squadron Three, on active duty, did, at or near San Diego, California, on or about 1 August 2015, commit sexual contact upon STG3 A.I., U.S. Navy, to wit: biting her vagina, by first rendering her unconscious.

Plea: Not Guilty
Disposition: The specification was dismissed. However, the military judgemerged the operative language of this specification with the operative language from Charge II, Specification 1, Charge IV, Specification 1, and theUnited States v. Spinoza , No. 201700236

19 so le specification of Additional Charge I, into the specification noted above at ** under Charge II, alleging a violation of Article 120, UCMJ. The finding to the offense was Not Guilty.
Charge III: Violation of the UCMJ, Article 120a

Plea: Not Guilty

Findin g: Guilty
Specification 1: In that Lieutenant Hugo J. Spinoza, U.S. Navy, Mine Countermeasures Squadron Three, on active duty, who should have known that Ms. S.M. would be placed in reasonable fear of bodily harm to herself, did, at or near San Diego, Cali fornia, on or about July 2015, wrongfully engage in a course of conduct directed at Ms. S.M., to wit: unlawfully grabbing Ms. S.M. on the arm with his hand, sending her text messages threatening to break into her home, and going to Ms. S.M. ’ s home and atte mpting to enter it, thereby inducing in Ms. S.M. a reasonable fear of bodily harm to herself.

Plea: Not Guilty
Finding: Guilty, except for the words “ and attempting to enter it. ” Of the excepted words, Not Guilty. Of the specification as excepted, Guilty.
Specification 2: In that Lieutenant Hugo J. Spinoza, U.S. Navy, Mine Countermeasures Squadron Three, on active duty, who should have known the LTJG M.M., U.S. Navy, would be placed in reasonable fear of bodily harm to herself, did, at or near San Diego, C alifornia, on divers occasions on or about March 2014, wrongfully engage in a course of conduct directed at LTJG M.M., to wit: arriving unannounced at her residence on more than one occasion and breaking into her residence, thereby inducing in LTJG M.M. a reasonable fear of bodily harm to herself.

Plea: Not Guilty
Finding: Not Guilty pursuant to R.C.M. 917.
Charge IV: Violation of the UCMJ, Article 128

Plea: Not Guilty
Finding: Guilty
Disposition: The charge was conditionally dismissed after findings as unr easonably multiplicious with the finding of Guilty to Charge III, Specification 1.
Specification 1: In that Lieutenant Hugo J. Spinoza, U.S. Navy, Mine Countermeasures Squadron Three, on active duty, did, at or near San Diego, California, on or about 1 Aug ust 2015, unlawfully bite STG3 A.I., U.S. Navy on her lower lip and neck with his mouth.

Plea: Not Guilty
Disposition: The specification was dismissed. However, the military judgemerged the operative language of this specification with the operative langu age from Charge II, Specifications 1 and 2, and the sole specification ofUnited States v. Spinoza , No. 201700236

20 Additional Charge I, into the specification noted above at ** under Charge II, alleging a violation of Article 120, UCMJ. The finding to the offense was Not Guilty.
Specification 2: In that Lieutenant Hugo J. Spinoza, U.S. Navy, Mine Countermeasures Squadron Three, on active duty, did, at or near San Diego, California, on or about July 2015, unlawfully grab Ms. S.M. on the arm with his hand.

Plea: Not Guilty
Finding: Guilty
Dispositio n: Conditionally dismissed after findings as unreasonably multiplicious with the finding of Guilty to Charge III, Specification 1.
Charge V: Violation of the UCMJ, Article 133

Plea: Not Guilty
Disposition: Withdrawn and dismissed without prejudice. However , as a result of the findings to Charge II and Charge VI, Specification 2, the legal effect of these findings renders the dismissal with prejudice.
Specification: In that Lieutenant Hugo J. Spinoza, U.S. Navy, Mine Countermeasures Squadron Three, on active duty, did, at or near San Diego, California, on divers occasions between on or about July 2015 and on or about August 2015 commit misconduct to wit: aggravated sexual contact and fraternization, which conduct was unbecoming an officer and a gentleman.

Ple a: Not Guilty
Disposition: Withdrawn and dismissed without prejudice. However, as a result of the findings to Charge II and Charge VI, Specification 2, the legal effect of these findings renders the dismissal with prejudice.
Charge VI: Violation of the UCM J, Article 134

Plea: Not Guilty
Finding: Guilty
Specification 1: In that Lieutenant Hugo J. Spinoza, U.S. Navy, Mine Countermeasures Squadron Three, on active duty, did, at or near San Diego, California, on or about July 2015, wrongfully communicate to Ms. S.M. a threat to injure her date by texting her he would come to her house, break in, and kill her date, such conduct being of a nature to bring discredit upon the armed forces.

Plea: Not Guilty
Finding: Guilty
Disposition: Conditionally dismissed after findings as unreasonably multiplicious with the finding of Guilty to Charge III, Specification 1.
Specification 2: In that Lieutenant Hugo J. Spinoza, U.S. Navy, Mine Countermeasures Squadron Three, on active duty, did, at or near San Diego, California, on or about July 2015, knowingly fraternize with STG3 A.I., U.S.United States v. Spinoza , No. 201700236

21 Navy, an enlisted person, on terms of military equality, to wit: by having sexual intercourse with STG3 A.I., in violation of the custom of the Naval Service of the United States that officers s hall not fraternize with enlisted persons on terms of military equality, such conduct being of a nature to bring discredit upon the armed forces.

Plea: Not Guilty
Finding: Guilty
Specification 3: In that Lieutenant Hugo J. Spinoza, U.S. Navy, Mine Counterm easures Squadron Three, on active duty, was, at or near San Diego, California, on or about 26 March 2016, drunk and disorderly, such conduct being of a nature to bring discredit upon the armed forces.

Plea: Not Guilty
Disposition: Withdrawn and dismissed w ithout prejudice.
Additional Charge I: Violation of the UCMJ, Article 128

Plea: Not Guilty
Disposition: The charge was dismissed. However, the military judge merged the operative language of the specification under the charge with the operative language fr om Charge II, Specifications 1 and 2, and Charge IV, Specification 1, into the specification noted above at ** under Charge II, alleging a violation of Article 120, UCMJ. The finding to the offense was Not Guilty.
Specification: In that Lieutenant Hugo J. Spinoza, U.S. Navy, Mine Countermeasures Squadron Three, on active duty, did, at or near San Diego, California, on or about 1 August 2015, commit an assault upon STG3 A.I., U.S. Navy, by strangling her with force likely to produce death or grievous bodily harm, to wit: applying pressure on her neck with his left hand until she lost consciousness.

Plea: Not Guilty
Disposition: The specification was dismissed. However, the military judge merged the operative language of this specification with the operative l anguage from Charge II, Specifications 1 and 2, and Charge IV, Specification 1, into the specification noted above at ** under Charge II, alleging a violation of Article 120, UCMJ. The finding to the offense was Not Guilty.
Additional Charge II: Violation of the UCMJ, Article 134

Plea: Not Guilty
Finding: Guilty
Specification: In that Lieutenant Hugo J. Spinoza, U.S. Navy, Mine Countermeasures Squadron Three, on active duty, did, at or near San Diego, California, in March 2014, unlawfully enter the dwelling house of LTJG M.M., U.S. Navy, such conduct being of a nature to bring discredit upon the armed forces.

Plea: Not GuiltyUnited States v. Spinoza , No. 201700236

22 Finding: Guilty, except for the word “ March, ” substituting therefor the
words “ on or about May. ” Of the except word, Not Guilty. Of th e specification as excepted and substituted, Guilty.