United States v. Griffin-Ii

 This opinion is subject to administrative correction before final disposition.

                   STEPHENS, FOIL, and DEERWESTER
                        Appellate Military Judges


                           UNITED STATES


                        Tanner M. GRIFFIN
                 Lance Corporal (E-3), U.S. Marine Corps

                              No. 201900308

                            Decided: 19 May 2021

       Appeal from the United States Navy-Marine Corps Trial Judiciary

                               Military Judge:
                              Keaton H. Harrell

   Sentence adjudged 17 July 2019 by a special court-martial convened
   at Marine Corps Base Camp Lejeune, North Carolina, consisting of a
   military judge sitting alone. Sentence in the Entry of Judgment: re-
   duction to E-1, confinement for five months, and a bad-conduct dis-
   charge. 1

                               For Appellant:
                       Major Brian L. Farrell, USMCR

   1  The convening authority suspended confinement in excess of two months and
the bad-conduct discharge pursuant to a pretrial agreement. This suspension was
later vacated by the convening authority.
                 United States v. Griffin, NMCCA No. 201900308
                               Opinion of the Court

                                   For Appellee:
                      Lieutenant Jennifer Joseph, JAGC, USN
                       Lieutenant Kimberly Rios, JAGC, USN




FOIL, Judge:
    Appellant was convicted in accordance with his pleas of assault consum-
mated by a battery and wrongful broadcast of intimate visual images in
violation of Articles 128 and 117a, Uniform Code of Military Justice [UCMJ]. 2
    Appellant asserts two assignments of error [AOEs]: (1) the Court should
set aside or reassess the sentence that was imposed on the basis of improper
argument by the trial counsel; and (2) the Court should refuse to accept for
appellate review a record that is not substantially complete and has not been
certified by the detailed court reporter.
    In the second AOE, Appellant asserts the record was not substantially
complete for the following reasons: (a) it has not been certified by the detailed
court reporter; (b) it lacked a staff judge advocate pretrial recommendation;
(c) it lacked a record of vacation proceedings; (d) it included two documents
marked as appellate exhibits which were not mentioned in the transcript;
and (e) it lacked a document that was marked as a prosecution exhibit. The
Government produced the missing documents and we granted its motion to
attach them to the record of trial.
   Appellant also asserts four additional AOEs in a supplemental brief:
        (3) Did the hearing officer’s failure to resolve the disput-
            ed level of violence of Appellant’s alleged misconduct
            conflict with the requirement in United State v. Mi-
        (4) Should military servicemembers have heightened
            minimum Due Process rights at a vacation hearing—
            requiring a verbatim transcript and a meaningful

   2   10 U.S.C. §§ 928, 917a.

                 United States v. Griffin, NMCCA No. 201900308
                               Opinion of the Court

             right to present witnesses and evidence—than those
             provided to civilians at parole revocation hearing
             pursuant to Morrissey v. Brewer?
        (5) Did the pretrial agreement terms violate appellate
            law and public policy because, by their plain lan-
            guage, they placed Appellant on probation irrespec-
            tive of his status of being subject to the UCMJ?
        (6) Did the pretrial agreement’s failure to define “a ma-
            terial breach” violate appellate law and public policy,
            and did the military judge abuse his discretion by
            failing to inquire as to the parties’ understanding of
            this provision?
    We have carefully considered the second, fifth, and sixth AOEs and find
they are without merit and do not require further discussion or warrant
relief. 3
    In conducting our Article 66(b), UCMJ, review, we examined the addi-
tional issue of whether there was a substantial basis in law and fact to
question the providence of Appellant’s guilty plea to Article 117a.
   After reviewing the record of trial and the parties’ briefs, we find no prej-
udicial error and we affirm the findings and sentence.

                                  I. BACKGROUND

   Appellant and Lance Corporal [LCpl] Papa, 4 who was his girlfriend at the
time, got into an argument in his barracks room when she found pornography
on his phone. The argument became physical and led to an assault of
LCpl Papa by Appellant who held her down and forcibly kissed her.
LCpl Papa escaped by running out of the room.
   Appellant admitted to previously recording videos of himself and
LCpl Papa, with her consent, having sexual intercourse and performing oral
sex on him in her barracks room. LCpl Papa broke up with Appellant after
the assault incident. To get revenge, Appellant created an account on an

   3   See United States v. Matias, 

25 M.J. 356

, 361 (C.M.A. 1987).
   4All names in this opinion, other than those of the judges and counsel, are pseu-

                    United States v. Griffin, NMCCA No. 201900308
                                  Opinion of the Court

online pornography site and uploaded the videos, without LCpl Papa’s con-
sent, on two separate occasions in September and October of 2018. Appellant
admitted during the providence inquiry that the videos were observable to
anyone browsing this website.
    During the sentencing phase of the court-martial, Appellant made an un-
sworn statement and asserted that after the investigation began he went into
his account and deleted the videos. 5 The Government called LCpl Papa as a
rebuttal witness, and she testified under oath that she emailed the site’s
administrators to take down the videos that were uploaded without her
consent. 6 After LCpl Papa’s testimony, the defense counsel recalled Appellant
in surrebuttal to give an additional unsworn statement. Appellant reaffirmed
that he took down his video and deleted the account the same day law en-
forcement contacted him in the investigation. 7
     In its sentencing argument, the Government argued that there was con-
flicting testimony as to how the videos got removed. It further stated that
only one of the witnesses was subject to cross-examination. Defense counsel
argued that Appellant took responsibility for his actions and that his deletion
of the account probably occurred contemporaneously with the actions taken
by LCpl Papa.
    On 6 September 2019, the convening authority suspended all confinement
in excess of two months for twelve months from the Entry of Judgment and
suspended the bad-conduct discharge until the end of Appellant’s end of
active obligated service. The Entry of Judgment was signed on 30 October
2019. On 5 October 2019, Appellant was arrested for assaulting his wife and
for false imprisonment by the Jacksonville, North Carolina Police Depart-
ment. On 14 November 2019, Appellant pleaded guilty to these charges in
civilian court.
    The convening authority appointed a hearing officer to conduct proceed-
ings on whether to vacate the suspension of the suspended portion of his
sentence. Appellant was advised of his rights at the proceeding and he
elected to be represented by his detailed defense counsel. The hearing officer
considered the evidence, including an unsworn statement from 


5 Rawle at 68


Id. at 73.

Id. at 75.


              United States v. Griffin, NMCCA No. 201900308
                            Opinion of the Court

and recommended vacating the suspension of the sentence. The convening
authority vacated the suspension of the sentence on 18 December 2019.

                              II. DISCUSSION

A. Improper Argument
    Improper argument is a question of law that we review de novo. United
States v. Pope, 

69 M.J. 328

, 334 (C.A.A.F. 2011). The Government pointed out
during its sentencing argument that there was conflicting testimony and that
only LCpl Papa testified under oath. There was no objection at trial by
Appellant to the comments made by the Government during the sentencing
argument. If not objected to at trial, the issue of improper argument is
reviewed for plain error, which is error that is plain or obvious that is mate-
rially prejudicial to a substantial right of the accused. United States v.

62 M.J. 175

, 179 (C.A.A.F. 2005).
   The Government may argue in closing that an accused making an un-
sworn statement cannot be cross-examined as well as point out sworn testi-
mony that conflicts with the unsworn statement. United States v. Marsh, 70,
M.J. 101, 105 (C.A.A.F. 2011). Oral and written unsworn statements are not
made under oath, so merely urging the Court to consider an unsworn state-
ment for what it is—and by extension, what it is not—falls within the bound-
ary of fair prosecutorial comment. United States v. Breese, 

11 M.J. 17

, 24
(C.M.A. 1981).
    Here, the Government was properly pointing out a conflict between
LCpl Papa’s testimony and Appellant’s unsworn statement. The Govern-
ment’s comments were permissible and did not constitute error, let alone
plain error, in this military judge alone trial.

B. Vacation Proceedings
    In order to vacate the suspension of a sentence, the Government must
prove by a preponderance of the evidence that the accused committed a
violation of the UCMJ. United States v. Englert, 

42 M.J. 827

, 831 (N-M. Ct.
Crim. App. Oct. 31, 2011). Appellant argues that the hearing officer failed to
comply with United States v. Miley, 

59 M.J. 300

(C.A.A.F. 2004), by not
resolving the level of violence for the misconduct. The appellant in Miley
claimed innocent ingestion and denied wrongfully using drugs. But here,
Appellant admitted during the vacation proceeding that he committed the
misconduct which would be a violation of Article 128, UCMJ. To the extent
that there was a dispute from Appellant, it was over the level of violence, not
over whether he committed an assault. The Government also presented
Appellant’s record of conviction that documented his guilty plea in civilian

               United States v. Griffin, NMCCA No. 201900308
                             Opinion of the Court

court to assault and false imprisonment. Appellant did not contest the accu-
racy of that record. Because there were no unresolved facts concerning
whether he committed misconduct amounting to a violation of Article 128,
there was no error.
    Appellant appeared at the hearing with his detailed defense counsel and
he was given the opportunity to present evidence. Appellant provided an
unsworn statement. He also stated that he did not object to any of the exhib-
its offered by the Government. A verbatim transcript for vacation proceedings
is not required by Rule for Courts-Martial 1108. As the hearing met the
requirements of Article 72, UCMJ, there was no error.

C. Providence of the Plea
    In United States v. Murray, 8 this Court found the appellant’s guilty plea
to violating a lawful general regulation for sexual harassment was improvi-
dent for conduct that was similar to this case. The appellant in Murray made
three sexual videos with a shipmate. While all the sex acts were consensual,
only one of the videos was made with the victim’s consent, which was ex-
pressly conditioned on the appellant’s agreement not to further distribute the
videos. Murray later posted all the videos on a pornography sharing website
without the victim’s knowledge or consent while identifying her full name
and the fact that she was a Sailor while also labeling it in such a way as to
sexually denigrate her. At issue was whether the posting of the videos creat-
ed a hostile work environment as defined by the Navy regulation on sexual
harassment. 9 The appellant in Murray was charged under Article 92 because
Article 117a was not in effect at that time. The Court found the military
judge did not elicit sufficient facts from Murray to support that he, rather
than others, made the workplace hostile to the victim.
    Here, Appellant pleaded guilty to wrongful broadcast of intimate visual
images in violation of Article 117a. The terminal element of this offense
requires the Government to establish that “[Appellant’s] conduct, under the
circumstances, had a reasonably direct and palpable connection to a military
mission or military environment.” In his colloquy with the military judge,

   8 No. 201800163, 2019 CCA LEXIS 483 (N-M. Ct. Crim. App. Dec. 5, 2019) (un-
   9 See Sec’y of the Navy Instr. 5300.26D, Department of the Navy (DON) Policy on
Sexual Harassment, encl. 2 (Jan. 3, 2006) (defining the range of behaviors which
constitute sexual harassment).

                     United States v. Griffin, NMCCA No. 201900308
                                   Opinion of the Court

Appellant testified that he believed his actions were harmful to the victim’s
career, reputation and relationships. 10 He stated that his actions affected the
mission environment, because the videos were recorded in what was unmis-
takably a military barracks room. 11 He further testified that other Marines
who worked with the victim were aware of the videos, and that caused a
distraction for her from her duties in the military workplace. 12 As a result of
his thorough providence inquiry, the military judge found that Appellant’s
conduct impacted the accomplishment of the military mission and was
directly connected to a military environment even though Appellant did not
work in the same workplace as the victim. 13
    Given Article 117a’s more expansive reach as well as the additional ques-
tioning by the military judge, we find no shortcoming such as we found in
Murray. The terminal element for Article 117a is broader than a charge of
sexual harassment under Article 92 by creating a hostile work environment.
Appellant does not have to work in the same workplace as the victim to be
found guilty of violating Article 117a. If an appellant can articulate—as
Appellant did here—that his conduct had a direct and palpable connection to
the military mission or environment, then it does not matter whether he and
the victim worked in the same workplace.

                                  III. CONCLUSION

    After careful consideration of the record and briefs of appellate counsel,
we have determined that the findings and sentence are correct in law and
fact and that no error materially prejudicial to Appellant’s substantial rights
occurred. 14
   The findings and sentence are 


10 Rawle at 41


Id. at 42.

Id. at 43.

Id. at 45.

  UCMJ arts. 59, 66.

United States v. Griffin, NMCCA No. 201900308
              Opinion of the Court

               FOR THE COURT:

               RODGER A. DREW, JR.


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