              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                 Before
               J.A. FISCHER, K.M. MCDONALD, D.C. KING
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                       KENNETH R. WALKER
                  CORPORAL (E-4), U.S. MARINE CORPS

                            NMCCA 201400136
                        SPECIAL COURT-MARTIAL


Sentence Adjudged: 15 November 2013.
Military Judge: CDR M.N. Fulton, JAGC, USN.
Convening Authority: Commanding Officer, Combat Logistics
Regiment 3, 3d Marine Logistics Group, Kaneohe Bay, HI.
Staff Judge Advocate's Recommendation: LtCol P.D. Sanchez,
USMC.
For Appellant: Capt David Peters, USMC.
For Appellee: LT James Belforti, JAGC, USN; LT Ann Dingle,
JAGC, USN.

                           12 February 2015

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                     OPINION OF THE COURT
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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.

PER CURIAM:

     A panel of officer and enlisted members sitting as a
special court-martial, convicted the appellant, contrary to his
pleas, of two specifications of violating lawful general orders,
one specification of using provoking words, one specification of
abusive sexual contact, one specification of assault consummated
by a battery, 1 and one specification of disorderly conduct in
violation of Articles 92, 117, 120, 128, and 134, Uniform Code
of Military Justice, 10 U.S.C. §§ 892, 917, 920, 928, and 934.
The members sentenced the appellant to forfeit $1,010.00 pay per
month for two months, 60 days’ confinement, reduction to pay
grade E-1, and a bad-conduct discharge. The convening authority
(CA) approved the sentence as adjudged and except for the
punitive discharge ordered the sentence executed.

     The appellant asserts two assignments of error. First, he
claims that that trial counsel “improperly vouched for the
complaining witness against [the appellant] with respect to the
wrongful sexual contact charge.” 2 Second, the appellant claims
that his conviction for abusive sexual contact is legally and
factually insufficient. We disagree.

     Additionally, although not raised as error, we address
whether a number of ambiguities and omissions in the record of
trial rises to the level of jurisdictional error and order the
supplemental court-martial order to correct a scrivener’s error
in the court-martial order dated 7 March 2014.

     After carefully considering the record of trial and the
submissions of the parties, we are convinced that the findings
and the sentence are correct in law and fact, and that no error
materially prejudicial to the substantial rights of the
appellant was committed. Arts. 59(a) and 66(c), UCMJ.

                                 Background

     After a night of drinking and dancing, Lance Corporal
(LCpl) L invited the appellant and several other Marines back to
her barracks room. When they arrived, LCpl L’s roommate, LCpl
MR, was already asleep and she awoke only briefly when the group
entered her room. LCpl MR then went back to sleep while the
group watched a movie in the room. At some point, LCpl L asked
everyone to leave so she could go to sleep.

     The appellant left but later returned to the room and
climbed into LCpl MR’s bed where she awoke to the appellant

1
  After findings were announced, the military judge granted trial defense
counsel’s motion to dismiss the appellant’s conviction for assault
consummated by a battery under Article 128, UCMJ, as multiplicious with his
conviction for abusive sexual contact under Article 120, UCMJ.
2
    Appellant’s Brief of 2 Jul 2014 at 1.


                                        2
“grinding” 3 on her. LCpl MR testified that she ordered the
appellant to leave, but he fell back down on her bed. However,
according to LCpl MR, a few minutes later the appellant got up
and left the room. LCpl MR reported the incident the next day.

     At trial, Government witnesses gave varying accounts of how
much alcohol they observed the appellant consume that night.
While being interviewed by the Naval Criminal Investigative
Service, the appellant admitted to “waking up in [LCpl MR’s]
bed,” 4 but denied any recollection of what otherwise occurred due
to being intoxicated and drowsy. The Government also offered
evidence at trial that the appellant told the barracks duty that
night that he was kicked out of a room because of “something
[having] to do with a female.” 5

        During closing argument, trial counsel stated:

        First and foremost, we have the testimony from [LCpl
        MR]. She was credible. You observed her testify on
        the witness stand. There’s no reason to believe that
        what she had to say wasn’t the truth. She was
        forthcoming. She answered all questions honestly and
        forthrightly. What she says is corroborated. If you
        think about it, everything else that she says that can
        be verified by another person was actually verified by
        another person. . . . There’s no motivation to
        fabricate or exaggerate the facts that she has laid
        out for you. . . . And you have the testimony, once
        again, of [LCpl MR], whose credibility is not being
        challenged.” 6

     Trial defense counsel made no objection to the Government’s
closing argument. Additionally, in her opening statement and
closing argument, the trial defense counsel, told the members




3
  At trial, LCpl MR described “grinding” as follows: “[k]ind of like, how if
you’re try [sic] to, like, penetrate or have that other person feel your
private area against you.” Record at 149.
4
    Prosecution Exhibit 7.
5
    Record at 134-35.
6
    Id at 285-87.


                                      3
that LCpl MR “is not lying” 7 and provided testimony that was
“consistent with [the appellant’s] explanation.” 8

Improper Argument – Charge I, Specification 1 (Abusive Sexual
Contact, Art. 120)

     The appellant claims that trial counsel’s closing argument
wrongfully bolstered LCpl MR’s credibility and the military
judge’s failure to sua sponte intercede constitutes plain error.

     Improper argument is a matter we review de novo. United
States v. Marsh, 70 M.J. 101, 104 (C.A.A.F. 2011). Since the
defense counsel failed to object to the argument at trial, we
review the appellant’s claim for plain error. Id. “Plain error
occurs when (1) there is error, (2) the error is plain or
obvious, and (3) the error results in material prejudice to a
substantial right of the accused.” United States v. Fletcher,
62 M.J. 175, 179 (C.A.A.F. 2005) (citing United States v.
Rodriguez, 60 M.J. 87, 88-89) (C.A.A.F. 2004)).

     When determining whether trial counsel’s comments were
improper, the statements “must be examined in light of [their]
context within the entire court-martial.” United States v.
Carter, 61 M.J. 30, 33 (C.A.A.F. 2005) (citation omitted).
Error occurs when trial counsel “interject[s] [oneself] into the
proceedings by expressing a ‘personal belief or opinion as to
the truth or falsity of any testimony or evidence.’” Fletcher,
62 M.J. at 179 (quoting United States v. Horn, 9 M.J. 429, 430
(C.M.A. 1980)) (additional citations omitted).

     The appellant submits that the trial counsel interjected
himself into the proceedings when he described LCpl MR as
“credible” and “truthful” in his closing statement. We disagree
and find that trial counsel’s comments neither improperly
bolstered LCpl MR’s credibility nor amounted to him personally
vouching for her credibility. Moreover, the trial defense
counsel did not attack LCpl MR’s credibility, instead arguing
that her testimony was consistent with the defense’s theory that
the appellant’s actions were accidental due to his intoxication.
When trial counsel’s comments are analyzed in this context, we
find that they do not constitute error, let alone plain or
obvious error.


7
    Id. at 92.
8
    Id. at 296.


                                4
Legal and Factual Sufficiency – Charge I, Specification (Abusive
Sexual Contact, Art. 120)

     The appellant also claims that the evidence is legally and
factually insufficient to prove abusive sexual contact because
the Government did not produce evidence of the appellant’s
specific intent to “to abuse, degrade, or humiliate” LCpl MR. 9

     We review questions of legal and factual sufficiency de
novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002). We review the legal sufficiency of the evidence by
determining “whether, considering the evidence in the light most
favorable to the prosecution, any reasonable fact-finder could
have found all the essential elements beyond a reasonable
doubt.” United States v. Day, 66 M.J. 172, 173-74 (C.A.A.F.
2008) (citing United States v. Turner, 25 M.J. 324, 324 (C.M.A.
1987). “The test for factual sufficiency is whether, after
weighing all the evidence in the record of trial and recognizing
that we did not see or hear the witnesses as did the trial
court, this court is convinced of the appellant’s guilt beyond a
reasonable doubt.” United States v. Rankin, 63 M.J. 552, 557
(N.M.Ct.Crim.App. 2006) (citing Turner, 25 M.J. at 325 and Art.
66(c), UCMJ), aff’d, 64 M.J. 348 (C.A.A.F. 2007). Beyond a
reasonable doubt, however, does not mean that the evidence must
be free from conflict. Id. The Government may prove an
appellant’s intent with circumstantial evidence. United States
v. Kearns, 73 M.J. 177, 182 (C.A.A.F. 2014); United States v.
Vela, 71 M.J. 283, 286 (C.A.A.F. 2012)

     Here, the appellant admits to “waking up in [LCpl MR’s]
bed” and concedes the possibility that he had physical contact
with LCpl MR. 10 The appellant, however, denies having formed the
specific intent to sexually assaulting LCpl MR, because he has
no recollection of the incident and was highly intoxicated and
drowsy at the time. LCpl MR testified that she awoke to the
appellant “grinding” on her in a sexual way. Additionally,
other evidence in the record corroborates that the appellant
returned to LCpl MR’s room and climbed in her bed that night
while she was sleeping. We find this persuasive evidence of the
appellant’s intent.

     After carefully reviewing the record of trial and
considering the evidence in the light most favorable to the

9
     Appellant’s Brief at 1.
10
     PE 7.


                                5
prosecution, we are convinced that a reasonable fact-finder
could have found all essential elements beyond a reasonable
doubt. Furthermore, after weighing all the evidence in the
record of trial and having made allowances for not having
personally observed the witnesses, we are convinced beyond a
reasonable doubt of the appellant’s guilt.

Failure to Formally Enter Pleas and Forum on the Record

      Although not raised by the appellant as assigned error, we
note the military judge failed to ensure that the request for
enlisted members was “signed by the accused or . . . made orally
on the record.” RULE FOR COURTS-MARTIAL 903(b)(1), MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2012 ed.). While this failure represented a
violation of Article 25(c)(1), UCMJ, under the circumstances of
this case, there was substantial compliance with Article 25 and
we see no material prejudice to the appellant’s substantial
rights. See United States v. Townes, 52 M.J. 275, 277 (C.A.A.F.
2000). Additionally, there was no error where the appellant
failed to enter pleas and the trial proceeded as if the
appellant had done so. R.C.M. 910(b).
Ambiguous Court-Martial Convening Orders

     The original charges were referred to trial by special
court-martial on 9 July 2014 by Special Court-Martial Convening
Order 2-13 dated 24 April 2013. 11 Additional charges were also
referred for trial by special court-martial on 9 July 2014 and
11 September 2014 by Special Court-Martial Convening Order 2-13
dated 24 April 2013. The appellant was arraigned on 24
September 2014 during which he was informed of his forum rights
and elected to reserve motions, pleas, and forum selection. On
29 October 2014, trial defense counsel informed the Government
via email that the forum for the appellant’s trial would be
“members with enlisted representation.” 12
     On 8 November 2014, the CA issued a Special Court-Martial
Convening Order stating that “Special Court-Martial Convening
Order 3-13 dated 17 July 2013, is hereby modified for the case
of United States versus Corporal Kenneth R. Walker, U.S. Marine
Corps, as follows[.]” The CA then proceeded to (1) “Delete” six
of the seven members appointed by Special Court-Martial
Convening Order 2-13 dated 24 April 2013 and one officer who was
not named on that document; (2) “Add[ed]” four new officers and
11
     This convening order named seven officer members.
12
     Appellate Exhibit XXIII.


                                         6
five enlisted members; and (3) stated that the “special court-
martial, as now established, is constituted as follows:” and
listed the four officers and five enlisted members whom he had
“Add[ed]” earlier in the document. Those members submitted
questionnaires which were provided to counsel prior to the next
session of the court. 13
     A new military judge next opened the court on 12 November
2014. When summarizing an R.C.M. 802 Session held earlier that
day, he stated:
        We discussed a problem with the convening orders in
        this case insofar as we seem to be missing convening
        order 3-13. I understand that that will be provided
        to the record of trial before authentication. But the
        modifications of 3-13 makes it clear who the convening
        authority has tasked to sit on this case, so we just
        need to make sure that that intermediate convening
        order is part of the record. 14
Shortly thereafter, without the appellant having entered pleas
or forum selection, the four officer and five enlisted members
listed as establishing the members panel in the Special Court-
Martial Convening Order issued on 8 November 2014 entered the
courtroom. In response to direction from the military judge,
the members affirmed that their names and ranks were correctly
reflected on the convening order, were then subjected to voir
dire, and were given preliminary instructions to include that
“[a]t an earlier session of this court, Corporal Walker pleaded
not guilty to the charges and specifications[.]” 15 The appellant
challenged five of the members for cause based solely on their
responses during voir dire. The panel which was seated on 12
November 2014 ultimately consisted of two officers and 3
enlisted members.
     The record of trial docketed with this court included
Special Court-Martial Convening Order 2-13 dated 24 April 2013,
the Special Court-Martial Convening Order issued on 8 November
2014, and a court-martial order dated 15 November 2014 stating
that “Special Court-Martial Convening Order 2-13 dated 24 April
2013, is hereby modified for the case of United States versus
Corporal Kenneth R. Walker, U.S. Marine Corps, as follows[.]”
The CA then proceeded to (1) “Delete” all seven members

13
     Record at 24; AE XXII.
14
     Record at 9.
15
     Id. at 22.
                                   7
appointed by Special Court-Martial Convening Order 2-13 dated 24
April 2013; (2) “Add[ed]” the same four officers and five
enlisted members that were “Add[ed] by the 8 November 2014
convening order; and (3) stated that the “special court-martial,
as now established, is constituted as follows:” and listed the
four officers and five enlisted members whom he had “Add[ed}”
earlier in the document.
     With respect to the confusion surrounding the court-martial
convening orders, it is clear that despite the inattention to
detail at the command level and of trial counsel, the members
present when the court was assembled on 12 November 2014 and who
ultimately were impaneled that same day were the members who the
CA intended to hear the case. “When there is an ambiguity but
no evidence that the convening authority’s intent was to the
contrary, ‘the construction of the convening orders by the
participants of [the] trial is controlling.’” United States v.
Mack, 58 M.J. 413, 416 (C.A.A.F. 2003) (quoting United States v.
Gebhart, 34 M.J. 189, 193 (C.M.A. 1992)). Accordingly, there
was no jurisdictional error and we see no material prejudice to
the appellant’s substantial rights.
                         Conclusion

     The findings and the sentence as approved by the convening
authority are affirmed. The supplemental court-martial order
will reflect that Additional Charge IV was a violation of
Article 117, UCMJ.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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