United States v. Master Sergeant ROLAND PEREZ

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).