United States v. Caple ( 2018 )

U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
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No. 201700204
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UNITED STATES OF AMERICA
Appellee
v.
CHRISTIAN M. CAPLE
Corporal (E-4), U.S. Marine Corps
Appellant
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Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Lieutenant Colonel Forrest W. Hoover, USMC.
Convening Authority: Commanding General, 2d Marine Logistics
Group, Camp Lejeune, North Carolina.
Staff Judge Advocate’s Recommendation: Captain Brendan J.
McKenna, USMC.
For Appellant: Commander R. D. Evans, Jr., JAGC, USN.
For Appellee: Major Kelli A. O’Neil, USMC; Lieutenant Allyson L.
Breech, JAGC, USN.
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Decided 26 January 2018
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Before H UTCHISON , F ULTON , and S AYEGH , Appellate Military Judges
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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.
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PER CURIAM:
A military judge sitting as a general court-martial convicted the
appellant, pursuant to his pleas, of two specifications of violating Article 80,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 880 (2012): (1)
attempted sexual abuse of a child and (2) attempted sexual assault of a child.
The military judge sentenced the appellant to reduction to pay grade E-1,
four years’ confinement, and a dishonorable discharge. The convening
authority (CA) approved the sentence as adjudged, suspended confinement in
United States v. Caple, No. 201700204
excess of 12 months pursuant to a pretrial agreement, and except for the
dishonorable discharge, ordered it executed.
The appellant alleges that the CA failed to consider a post-trial clemency
request submitted by the appellant’s civilian defense counsel (CDC). After
careful consideration of the record of trial and the parties’ pleadings, we are
satisfied that the findings and sentence are correct in law and fact, and that
no error materially prejudicial to the substantial rights of the appellant
occurred. Arts. 59(a) and 66(c), UCMJ.
I. BACKGROUND
In September 2015, the appellant responded to a personal advertisement
on Craigslist.com by someone named “Michelle Davis” who indicated she was
15 years old. After exchanging a few phone calls and text messages–including
one in which the appellant sent a picture of his penis–they agreed to meet at
“Michelle’s” house where the appellant expected her to perform fellatio on
him. When the appellant arrived, it was evening and no lights were on in the
house. He phoned “Michelle” who guided him through her dark house to her
bedroom where the appellant observed a curtain hanging in a doorway. The
curtain had a small hole in it. “Michelle” instructed the appellant to put his
penis in the hole, which he did, and “Michelle” proceeded to perform oral sex
on him. Although he never saw the person behind the curtain, the appellant
believed he was getting fellatio from a 15-year-old girl.
The next morning, the appellant began receiving demands for $9,400.00
from “Michelle,” someone purporting to be her mother, and another person
claiming to be “Detective Tom Robinson.” “Michelle” also told the appellant
her mother was going to call the police because she found the text of the
appellant’s penis on her phone. After agreeing to meet “Michelle” at his bank,
the appellant took out a loan and paid the money to a man he had never met
before.
The appellant reported the incident to local law enforcement, who with
the assistance of the appellant, determined the appellant was the victim of an
extortion plot being perpetrated by a local 46-year-old man named Elburt
Fish who was pretending to be “Michelle Davis.” Further investigation
revealed it was Elburt Fish who performed fellatio on the appellant. The
appellant agreed to support the local assistant district attorney (ADA) in the
prosecution of Elburt Fish. The ADA praised the appellant for his willingness
to come forward and considered his cooperation to be “instrumental” in the
successful prosecution of Elburt Fish.
In May 2017, the appellant pleaded guilty at a general court-martial to
attempted sexual abuse and attempted sexual assault of a child. He was
represented by both a detailed trial defense counsel (TDC) and a CDC. In
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June 2017, both the TDC and CDC submitted post-trial clemency letters to
the CA. The letters were similar, but the CDC’s letter included references to
the appellant’s suicide attempt and subsequent mental health issues. Both
letters were forwarded as enclosures to the CA in a 27 June 2017 staff judge
advocate’s recommendation that advised the CA he must consider both
letters. The CA’s action states, “Prior to taking action in the case, I
considered the results of trial, the record of trial, the recommendation of the
staff judge advocate and the matters submitted by detailed defense counsel
on 16 June 2017 in accordance with R.C.M. 1105 and 1106.”
The appellant asserts that the absence of any reference to the CDC’s
clemency submission in the CA’s action is evidence that the CA erred by not
considering the CDC’s letter. The appellant requests that we remand this
case for new post-trial processing.
II. DISCUSSION
Proper execution of post-trial processing is a question of law, reviewed de
novo. United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000). “Where there is
error in post-trial processing and ‘some colorable showing of possible
prejudice’ thereby, this court must either provide meaningful relief or remand
for new post-trial processing.” United States v. Roller, 75 M.J. 659, 661 (N-M.
Ct. Crim. App. 2016) (quoting United States v. Wheelus, 49 M.J. 283, 289
(C.A.A.F. 1998)). “First, an appellant must allege the error at the Court of
Criminal Appeals. Second, an appellant must allege prejudice as a result of
the error. Third, an appellant must show what he would do to resolve the
error if given such an opportunity.” Wheelus, 49 M.J. at 288.
The appellant argues that the CA’s failure to list the CDC’s letter as a
matter he considered is “evidence to the contrary” that the CA actually
considered it.1 We disagree. “[N]either the UCMJ nor the Rules for Courts-
Martial require the [CA] to state in the final action what materials were
reviewed in reaching a final decision.” United States v. Stephens, 56 M.J. 391,
392 (C.A.A.F. 2002). Contrary to the appellant’s contention, we are convinced
that, prior to taking his action, the CA considered all of the documents
attached to and referenced in the staff judge advocate’s 27 June 2017
recommendation including the CDC’s clemency letter.
Regardless, even if the CA failed to consider the CDC’s letter, the
appellant was not prejudiced. He fails to adequately describe what the CA
“might have done to structure an alternative form of clemency,” even if the
CA wanted to after reading the CDC’s letter. United States v. Capers, 62 M.J.
268, 270 (C.A.A.F. 2005). Given that Article 60, UCMJ, limited the CA’s
1 Appellant’s Brief of 8 Sep 2017 at 12 (citing United States v. Doughman, 57 M.J.
653, 654 (N-M. Ct. Crim. App. 2002)).
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authority to grant clemency in this case to the adjudged reduction to E-1, and
considering the fact that the appellant was in a no pay status because his
enlistment had expired, we conclude that there has not been a colorable
showing of possible prejudice. The appellant’s claim is without merit and the
request to remand for new post-trial processing is denied.
III. CONCLUSION
The findings and sentence are affirmed.
For the Court
R.H. TROIDL
Clerk of Court
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