United States v. Master Sergeant ROLAND PEREZ ( 2009 )


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  • UNITED STATES ARMY COURT OF CRIMINAL APPEALS
    Before
    HOLDEN, HOFFMAN, and CONN
    Appellate Military Judges
    UNITED STATES, Appellee
    v.
    Master Sergeant ROLAND PEREZ
    United States Army, Appellant
    ARMY 20071308
    Headquarters, U.S. Army Special Operations Command
    Patrick J. Parrish, Military Judge
    Colonel Mark W. Seitsinger, Staff Judge Advocate
    For Appellant:  Captain Richard P. Pizur, JA (argued); Lieutenant Colonel
    Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, JA; Major
    Bradley Voorhees, JA; Captain Richard P. Pizur, JA (on brief in support of
    argument); Lieutenant Colonel Jonathan Potter, JA; Major Teresa L. Raymond,
    JA; Captain Richard P. Pizur, JA (on brief).
    For Appellee:  Captain Jonathan P. Robell, JA (argued); Colonel Denise R.
    Lind, JA; Lieutenant Colonel Mark H. Sydenham, JA; Major Christopher B.
    Burgess JA; Captain Jonathan P. Robell, JA (on brief).
    7 May 2009
    -----------------------------------------
    SUMMARY DISPOSITION
    -----------------------------------------
    Per Curiam:
    A general court-martial composed of officer and enlisted members
    convicted appellant, contrary to his pleas, of violating a lawful general
    regulation (inappropriate relationships with trainees) (two
    specifications), maltreatment of a subordinate, and indecent assault, in
    violation of Articles 92, 93, and 134, UCMJ (Uniform Code of Military
    Justice), 
    10 U.S.C. §§ 892
    , 893, 934.  The convening authority approved the
    adjudged sentence to a bad-conduct discharge, confinement for twenty-four
    months, forfeiture of all pay and allowances, and reduction to the grade of
    Private E1.  This case is before us for review under Article 66, UCMJ.
    Appellant alleges the evidence is factually and legally insufficient
    to support his conviction for maltreatment of a subordinate under Article
    93, UCMJ, and that the military judge abused his discretion in admitting
    uncharged misconduct under Military Rule of Evidence [hereinafter Mil. R.
    Evid.] 404(b).  For reasons outlined below, we disagree.
    BACKGROUND AND DISCUSSION
    Advising a Married Subordinate to “Get Laid”& Sexually Suggestive
    Statements
    Appellant was the direct supervisor and noncommissioned officer (NCO)
    in charge of Staff Sergeant (SSG) V, a female, with whom appellant had a
    professional, mentoring relationship imposed by duty and customs of the
    service.  Staff Sergeant V approached appellant while she was physically
    distraught over discovery of her husband’s marital infidelity.  When
    discussing her situation, appellant suggested SSG V “should get laid
    [engage in sexual intercourse]” to make herself feel better.  Staff
    Sergeant V reacted by indicating she had planned on being married to her
    husband for life and “getting laid” wasn’t going to make her feel better.
    Appellant responded by stating he “[got] laid” when his marriage broke up,
    making him realize he was handsome and attractive to women.  Appellant then
    characterized himself as “the shiznit [the best]” to SSG V.  Appellant
    concluded by asking SSG V, “what woman wouldn’t want me?”  Staff Sergeant V
    testified she clearly understood appellant was implying she should have
    intercourse with him.  This both angered and upset SSG V, who remained
    uncomfortable around appellant as her supervisor and afraid to be alone
    with him.
    Appellant asserts this conduct is factually and legally insufficient
    to constitute the offense of maltreatment.  We review the factual and legal
    sufficiency of evidence de novo.  United States v. Washington, 
    57 M.J. 394
    ,
    399 (C.A.A.F. 2002).  The test for legal sufficiency of evidence is
    “whether, considering the evidence in the light most favorable to the
    prosecution, a reasonable fact finder could have found all of the essential
    elements beyond a reasonable doubt.”  United States v. Turner, 
    25 M.J. 324
    ,
    324 (C.M.A. 1987).  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 appellate court is convinced
    of appellant’s guilt beyond a reasonable doubt.”  
    Id. at 325
    .  We are to
    draw every reasonable inference from the evidence of record in favor of the
    prosecution.  See United States v. Rogers, 
    54 M.J. 244
    , 246 (C.A.A.F.
    2000).
    Sexual harassment is a form of maltreatment under Article 93, UCMJ.
    See Manual for Courts-Martial, United States (2005 ed.), Part IV, para.
    17b.  Maltreatment need not involve physical contact.  
    Id.
      Sexual
    harassment involves words or conduct of a sexual nature which are
    “unwarranted, unjustified or unnecessary for any lawful purpose.”  United
    States v. Hanson, 
    30 M.J. 1198
    , 1201 (A.F.C.M.R. 1990) (citations omitted);
    aff’d, 
    32 M.J. 309
     (C.M.A. 1991).   Maltreatment does not require a
    specific intent on the part of the perpetrator.  See United States v.
    Rutko, 
    36 M.J. 798
    , 801 (A.C.M.R. 1993) (citation omitted).  The offense is
    determined by evaluating the conduct objectively, with permissible
    consideration of the subjective impact on the victim.  United States v.
    Carson, 
    57 M.J. 410
    , 415 (C.A.A.F. 2002).
    We find appellant’s conduct constituted maltreatment under Article 93,
    UCMJ.  Appellant’s suggestion that his married subordinate should “get
    laid” and simultaneously seeking her comment on his attractiveness is
    unwarranted, unjustified, and served no lawful purpose.  Hanson, 30 M.J. at
    1201.  It represents an abuse of authority because it involved an immediate
    subordinate whom appellant supervised and rated, whose career appellant
    influenced, and who was subject to real and perceived pressure from
    appellant.  Carson, 57 M.J. at 415.  We cannot ignore that appellant is a
    male and the subordinate is a female and, following her opposition to his
    sexual and inappropriate suggestion, appellant continued by characterizing
    himself to her as “ the shiznit” and asking “what woman wouldn’t want” him.
    The inference under these facts is unmistakable.  Whether appellant
    intended the unwelcomed sexual comments as a joke is irrelevant.  See
    Carson, 57 M.J. at 415.  The comments in context clearly exceed simple
    “poor taste.”  United States v. Harmon, 
    66 M.J. 710
    , 717 (Army Ct. Crim.
    App. 2008) (citation omitted).  Appellant’s sexualized remarks chilled the
    duty environment and undermined a military relationship his victim would be
    hard pressed to avoid.
    Evidence of Sexually-Oriented Screen Saver as an Uncharged Act
    Appellant also alleges the military judge abused his discretion by
    admitting evidence appellant used a computer screen saver in his office
    which featured a female with her breasts exposed.  Appellant had this
    sexually explicit image clearly visible in his office when SSG V reported
    for a meeting attended by otherwise male-only NCOs.  After SSG V objected
    and departed the office, appellant and the other male NCOs began laughing.
    As she departed, the response of the group, including appellant, was, “OK,
    OK, we’ll turn it off, come back.”
    Appellant’s defense counsel objected to this evidence as uncharged
    misconduct under Mil. R. Evid. 404(b).  After discussing the alleged act
    with the trial counsel, the military judge found the sexually explicit
    screen saver was encompassed within the charged offense of “repeated
    offensive comments of a sexual nature”[1] between 1 March and 1 May 2006.
    Appellant argues the military judge should have recognized the evidence as
    uncharged misconduct and excluded it.  Appellant avers the military judge
    failed to conduct a proper balancing test as required for Mil. R. Evid.
    404(b) evidence under United States v. Reynolds, 
    29 MJ 105
    , 109 (C.M.A.
    1989), and urges this court give the military judge’s decision no
    deference.  See United States v. Manns, 
    54 MJ 164
    , 166 (C.A.A.F. 2000).
    We agree with the military judge’s ruling.  This evidence is intrinsic
    to the charged offense and is not barred by Mil. R. Evid 404(b).  See
    United States v. Metz, 
    34 M.J. 349
    , 351 (C.M.A. 1992); United States v.
    Williams, 
    900 F.2d 823
    , 826 (5th Cir. 1990); United States v. Coleman, 
    78 F.3d 154
    , 156 (5th Cir. 1996).  See generally Edward J. Imwinkelried,
    Uncharged Misconduct Evidence, § 6:24 (2006).   Appellant was charged with
    “repeated” offensive comments within a specified several-month timeframe,
    and this act occurred within the alleged timeframe and involved the same
    victim.  This evidence, therefore, is intrinsic evidence which is “part and
    parcel” of the charged offense of maltreatment of SSG V between March and
    May 2006.  United States v. Anderson, 
    36 M.J. 963
    , 982 (A.F.C.M.R. 1993).
    Assuming, arguendo, the sexually explicit screensaver was Mil. R.
    Evid. 404(b) evidence and it was insufficient under Reynolds to demonstrate
    an absence of mistake, innocent motive, or a similar permissible purpose,
    we find no prejudice.  See United States v. Kerr, 
    51 MJ 401
    , 405 (C.A.A.F.
    1999).  Given the strength of the government’s other evidence and its
    materiality and quality, appellant was not substantially prejudiced by the
    admission of the sexually explicit screensaver.  The conduct is not
    substantially different from, or of a more serious character than, the
    instance of inappropriate sexual conversation.  The military judge’s ruling
    effectively protected appellant from double jeopardy and suppressed what
    would otherwise be an inducement to overcharge a course of conduct as
    separate events, increasing appellant’s punitive exposure.  See Metz, 34
    M.J. at 351.   Therefore, under Kerr, even if appellant’s public display of
    a sexually explicit image on his office computer screen constituted
    inadmissible Mil. R. Evid. 404(b) evidence, appellant was not substantially
    prejudiced by its admission.
    CONCLUSION
    On consideration of the entire record, including the assignments of
    error and matters personally asserted by appellant pursuant to United
    States v. Grostefon, 
    12 M.J. 431
     (C.M.A. 1982), the findings of guilty and
    the sentence are affirmed.
    FOR THE COURT:
    MALCOLM H. SQUIRES, JR.
    Clerk of Court
    -----------------------
    [1] Pursuant to a Rule for Courts-Martial [hereinafter R.C.M.] 917 motion,
    the military judge entered a finding of not guilty to the portion of the
    Article 93, UCMJ, specification which read “or gestures” of a sexual
    nature.  Appellant asserts this ruling is contrary to the judge’s admission
    of the screen saver evidence, since the screen saver display is not a
    comment.  We disagree.  We find appellant’s actions to
    (continued . . . )
    (. . . continued)
    be verbal conduct, recognized as a statement under Mil. R. Evid. 801(d)(2),
    and encompassed in the term “comment.”  Moreover, the military judge’s
    concern appears to have been primarily with charging in the alternative by
    using the word “or” as a disjunctive in the specification.  We considered
    appellant’s supplemental brief after oral argument which notes the allied
    papers did not reveal disclosure of this pretrial “statement” pursuant to
    Mil. R. Evid. 304(d)(1).  However, allied papers are not part of the record
    for purposes of our review.  United States v. Stokes, 
    65 M.J. 651
    , 654
    (Army Ct. Crim. Appeals 2007).
    

Document Info

Docket Number: ARMY 20071308

Filed Date: 5/7/2009

Precedential Status: Non-Precedential

Modified Date: 4/17/2021