### UNITED STATES NAVY

- MARINE CORPS

COURT OF CRIMINAL APPEALS WASHINGTON, D.C.

Before

J.A. FISCHER, A.C. RUGH, T.H. CAMPBELL

Appellate Military Judges

UNITED STATES OF AMERICA

v.

MARK J. RO S ARIO SERGEANT (E

- 5), U.S. MARINE CORPS

NMCCA 20150025 1

SPECIAL COURT

- MARTIAL

Sentence Adjudged: 27 Feb 2015

. Military Judge: Maj M.D. Libretto, USMC

. Convening Authority: Commanding Officer, Marine Aircraft Group 26, 2d MAW, Jacksonville, NC

. Staff Judge Advocate's Recommendation: LtCol J.J. Murphy, III, USMC

. For Appellant: LT Doug Ottenwess, JAGC, USN. For Appellee: Capt Matthew M. Harris, USMC; L T Robert Miller, JAGC, USN.

28 January 2016

--------------------------------------------------- OPINION OF THE COURT

----------------------------------- ----------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS

PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

CAMPBELL, Judge:

A special court

- martial members panel with enlisted representation convicted t he appellant of violating a lawful general order under Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892. The convening authority approved the panel’s announced sentence of reduction to pay grade E

- 1 and a bad

- conduct discharge.2

The appell ant raises the following assignments of error: (1) unconstitutional vagueness of the Marine Corps’ sexual harassment policy, as applied in his case; (2) legal and factual insufficiency; and (3) sentence severity. After carefully considering the record of trial and parties’ submissions, we conclude the findings and sentence are correct in law and fact, and find no error materially prejudicial to the appellant’s substantial rights. Arts. 59(a) and 66(c), UCMJ.

I. Background

When she joined a new comma nd in September 2013, the appellant became Lance Corporal ( LCpl ) B.A.’s new p latoon s ergeant

. Over the next five months the appellant made numerous workplace comments which made LCpl B.A. uncomfortable , including “te quiero” (Spanish for “I want you”), “[ y]ou’re very pretty

. . . too pretty to be a Marine[,]” and “I really missed you

. . . I really missed your face

. . . I missed having you around.” 1 In response, LCpl B.A. questioned the appellant about these comments, indicated her disapproval, and/or at tempted to discuss more professional subjects. Upon her return from leave spent with her out

- of

- state husband, the appellant asked LCpl B.A. how many times the couple had sex over the Thanksgiving holiday. She replied, “Sergeant, that’s none of your busi ness.” 2 Later, the appellant agreed to temporarily hold LCpl B.A.’s apartment key that had been used by another platoon member during LCpl B.A.’s Christmas leave. When she asked for the key, the appellant said he was keeping it as a spare “for when [he w as going to] come over.” 3 Grabbing the key, LCpl B.A. replied, “absolutely not.” 4

There were also non

- verbal advances. The appellant placed his hand over hers and kissed her cheek while she worked on a refrigeration unit in October 2013. He put his han d on her neck and stuck his tongue in her ear while she repaired another unit in January 2014. Although she

had simply retracted her hand during the October incident, she reacted strongly in January

, push ing the appellant and telling him “[her] husband wo uld...kill [him].” 5 She then immediately reported this incident to another Marine, called her sister afterwards, and left work the next morning in an effort to discuss the appellant’s behavior with a Navy Chaplain.

LCpl B.A. again confronted the appell ant when she returned from the Chaplain’s office. Although he agreed that she had never invited his inappropriate advances, he explained, “I can’t help it, I like you. I have grown feelings for you.

. . . I always made sure that nobody was

around. I alw ays ma[d]e sure no one was looking. I was always very careful. It’s not like I asked you to go to have dinner, or hang out, go to the movies or something.

. . . [P]eople do this

1 Record at 122, 134

, 149.

2 Id. at 126.

3 Id. at 128.

4 Id.

5 Id. at 131

, 198.3

all of the time in the Marine Corps. It’s normal, it’s okay.” 6 Thereafter, feeling she could not be alone with him, LCpl B.A. asked others to accompany her anytime she had to speak with the appellant.

Vagueness

The appellant was convicted of sexual harassment under Marine Corps Order (MCO)

1000.9A (30 May 2006) . It iden tifies behaviors that constitute sexual harassment as

“unwelcome sexual advances

. . . and other verbal or physical conduct of a sexual nature when

. . . [ s ] uch conduct has the purpose or effect of unreasonably interfering with an individual’s work perf ormance or creates an intimidating, hostile, or offensive working environment.” 7 It further provides, “any military member

. . . who makes deliberate or repeated unwelcome verbal comments, gestures, or physical contact of a sexual nature in the workplace is also engaging in

sexual harassment.” 8

As a fundamental aspect of his argument, t he appellant contends only his verbal comments to LCpl B.A. are appropriately considered in relation to the sexual harassment conviction since he was acquitted of sexual c ontact and assault offenses corresponding to the

October 2013 and January 2014 incidents. He then distinguishes this case from the hypothetical

scenario in E nclosure 1 of MCO 1000.9A, in which a male corporal continues asking a female

co

- worker about her sex life after she says those questions are unwelcome. As he “did not press the issue when LCpl B.A. told him that his question regarding sex with her husband wasn’t appropriate and never re

- addressed it with her,” the appellant argues, “the instruction f ails to provide criteria for determining if and when [his] comments became criminal, thus allowing his guilt or innocence to be decided by wildly varying standards of interpretation.” 9

We review whether a regulation is unconstitutional as applied de novo

. United States v.

Ali , 71 M.J. 256, 265 (C.A.A.F. 2012); United States v. Hughey , 46 M.J. 152, 154 (C.A.A.F. 1997). When a void

- for

- vagueness challenge is raised for the first time on appeal, we review only for plain error. United States v. Goings , 72 M .J. 202, 205 (C.A.A.F. 2013). Plain error requires an appellant establish that an error which is “ ‘ clear or obvious under current law ’ ” affected his substantial rights. United States v. Karron , 348 F.Appx. 632, 633 (2d Cir. 2009) (quoting United States v . Gonzalez , 110 F .3d 936, 945

- 46 (2d Cir. 1997) )

.

Due process requires fair notice that an act is criminal before prosecution. United States

v. Saunders , 59 M.J. 1 , 8 (C.A.A.F. 2003). The test for unconstitutional vagueness is whether a person could r easonably know the charged conduct was criminal. Parker v. Levy , 417 U.S. 733, 757 (1974). Fair notice that an act is criminal may come from multiple sources, including “federal Law, state law, military case law, military custom and usage, and military r egulations.”

6 Id. at 134.

7 Prosecution Exhibit 1 at 4.

8 Id.

9 Appellant’s Brief of 2 Nov 2015 at 8

- 9.4

Unites States v. Vaugh a n , 58 M.J. 29, 31 (C.A.A.F. 2003) (citations omitted) . We “need not decide whether custom or regulation, state law, or military case law alone would meet the requirements for due process notice” if, “when addressed toge ther, appellant should reasonably have understood that [the] contemplated conduct was subject to military criminal sanction.” Id.

at 33. A statute also must not be so standardless that it invites arbitrary enforcement. Johnson v.

United States , 135 S.Ct . 2551, 2556 (2015) (citing Kolender v. Lawson , 461 U.S. 352, 357

- 58 (1983) )

.

The appellant’s vagueness argument has a faulty premise. When the same evidence is offered in support of two separately charged offenses, as the physical encounters were here, “an acquittal on one [may] not be pleaded as res judicata of the other.” Dunn v. United States , 284 U.S. 390, 393 (1932). “Because the court preferred to free [the appellant] on one specification alleging a more serious offense does not also mean it fou nd that one particular element of a less aggravated offense was not established.

. . . It is an acknowledged fact that verdicts are sometimes founded on leniency, compromise, or mistake, and if the accused is the beneficiary of compassion or error, he is n ot in a position to complain.” United States v. Jackson

, 21 C.M. R

. 193

, 19 7

- 98 (C.M.A. 1956).

Considering all the relevant facts, including the incidents where he touched LCpl B.A., we have no difficulty concluding that a person of ordinary intelligenc e could reasonably

understand the regulation proscribed the appellant’s conduct. Beyond depart ing from military

customs

, s ee generally Marine Corps Manual, ¶¶ 1100.3

- 1100.5 (May 13, 1996) (concerning professional and personal relationships between Marines and the leadership responsibilities of

noncommissioned officers ) , th e conduct clearly meets the MCO’s definition of sexual

harassment.

Similar provisions from iterations of Secretary of the Navy Instruction 5300.26 defining

and prohibiting sexual hara ssment have overcome unconstitutional vagueness challenges. See United States v. Balcarczyk , 52 M.J. 809 (N

. M.Ct.Crim.App. 2000); United States v. Swan , 48 M.J. 551 (N

. M.Ct.Crim.App. 1998); and United States v. Jones , No. 200000845, 2003 CCA

LEXIS 4 , unpu blished op. (N

. M.Ct.Crim.App. 16 Jan 2003). Similarly, we find M CO 1000.9A “adequately defines what constitutes ‘sexual harassment,’ prohibits

. . . engaging in such harassment, and makes it clear that any violation of the relevant provisions ‘by military personnel is punishable in accordance with the UCMJ.’” Swan

, 48 M.J. at 555 (citation omitted)

. Applying a reasonable person standard to determine whether there was unwelcomed sexual behavior that produced an intimidating, hostile or offensive working e nvironment as described by the victim

-- objectively measurable standards

-- meets the due process notice requirements and sufficiently ensures the order does not encourage arbitrary or discriminatory enforcement.

Legal and Factual Sufficiency

Pursuant to Article 66(c), UCMJ, we review de novo the legal and factual sufficiency for each approved guilty finding. United States v. Washington , 57 M.J. 394, 399 (C.A.A.F. 2002) (citing United States v. Cole , 31 M.J. 270, 272 (C.M.A. 1990)). The test for legal sufficiency is whether, “considering the evidence in the light most favorable to the prosecution, a reasonable5

factfinder could have found all the essential elements beyond a reasonable doubt.” United States

v. Turner , 25 M.J. 324 , 324

- 25 (C.M .A. 1987) (citing Jackson v. Virginia , 443 U.S. 307, 319 (1979)). Factual sufficiency requires us to be convinced of the appellant’s guilt beyond a reasonable doubt, “after weighing the evidence in the record of trial and making allowance for not having p ersonally observed the witnesses.” Id. at 325.

Again limiting his analysis, the appellant asserts the Government failed to prove his comments to LCpl B.A. were sexual in nature and that they affected or unreasonably interfered

with her work env ironment. Again we disagree. LCpl B.A.’s testimony that the appellant made

unwanted sexual advances

-- touching her hand and kissing her cheek during the October 2013 incident, touching her neck and sticking his tongue in her ear during the January 2014 in cident, and making numerous comments about his attraction to and desire for her throughout the course

of several months

-- also clearly conveyed that she felt harassed. 10

Considering the evidence in the light most favorable to the Government, we find the

ev idence to be legally sufficient to support conviction . Weighing the trial evidence, while making allowances for not having personally observed the witnesses, we are also convinced beyond a reasonable doubt of the appellant’s guilt.

Sentence Appropria teness

We conduct de novo review for sentence appropriateness , United States v. Lane , 64 M.J. 1, 2 (C.A.A.F. 2006), which “involves the judicial function of assuring that justice is done and that the accused gets the punishment he deserves." United Stat es v. Healy , 26 M.J. 394, 395 (C.M.A. 1988)

. It requires our "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) (citation and internal quotation marks omitted). Despite our significant discretion in reviewing the appropriateness and severity of the adjudged

sentence , we may not engage in acts of clemency. United States v. Nerad , 69 M.J. 138, 146 (C.A.A. F. 2010)

.

The appellant unpersuasively argues that his sentence should include only a reduction to the pay grade of E

- 4. With individualized consideration of the appellant, the nature and seriousness of his offense, his overall record of service, and a ll the matters within the record of trial, we find the convening authority approved an appropriate sentence.

10 “[S]he saw that I was upset. And obviously I was crying, and I just wanted to leave. And I told her what happened. I, you know, broke down and told her everything that had been happening and all of these little things.

. .

. She was, like, you know, what do you need?

. . . And I was just, like

. . . . I’ll go see the chaplain tomorrow morning. Just don’t say anything, like, I just got to think this through and figure what I’m going to do. Because at that point, I knew he had obviously crossed the line and, you know, obviously blamed myself for not say ing something sooner. But I said, you know, I have to figure it out. And I just wanted to leave. I didn’t want to be there around, I don’t want [ to ] see him. I don’t want to, like

– - I just kind of got in my car, broke down, called my

sister. Got home , washed my ear about 50 times for, like, five hours because I felt disgusting.” Record at 132

- 33.6 III. Conclusion

The finding and sentence as approved by the convening authority are affirmed.

Senior Judge FIS C HER and Judge RUGH concur.

For the Court

R.H. TROIDL

Clerk of Court