United States v. Ayalacruz

This opinion is subject to administrative correction before final disposition.

Before
CRISFIELD, KING, and ATTANASIO,
Appellate Military Judges

_________________________

UNITED STATES
Appellee

v.

Felix AYALACRUZ
Sergeant (E-5), U.S. Marine Corps
Appellant

No. 201800193

Argued: 27 September 2019—Decided: 10 January 2020.

Appeal from the United States Navy-Marine Corps Trial Judiciary.
Military Judge: Lieutenant Colonel Eugene H. Robinson, Jr., USMC.
Sentence adjudged 2 March 2018 by a special court-martial convened
at Camp Foster, Okinawa, Japan, consisting of officer members. Sen-
tence approved by the convening authority: reduction to pay grade
E-1, a reprimand, and a bad-conduct discharge.

For Appellant: Lieutenant Gregory Hargis, JAGC, USN.

For Appellee: Lieutenant Joshua C. Fiveson, JAGC, USN; Lieutenant
Jonathan O. Todd, JAGC, USN; Captain Brian Farrell, U.S. Marine
Corps.

Chief Judge CRISFIELD delivered the opinion of the Court, in which
Senior Judge KING and Judge ATTANASIO joined.

_________________________

PUBLISHED OPINION

_________________________
 United States v. Ayalacruz, NMCCA No. 201800193

CRISFIELD, Chief Judge:
Officer members sitting as a special court-martial convicted Appellant,
contrary to his pleas, of one specification of dereliction of duty, one specifica-
tion of simple assault, and one specification of disorderly conduct, in viola-
tion, respectively, of Articles 92, 128, and 134, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 892, 928, 934 (2012).
Appellant raises six assignments of error (AOE): (1) the military judge vi-
olated Appellant’s constitutional protection against double jeopardy when he
directed the members to clarify their findings; (2) the military judge abused
his discretion by improperly impeaching the members’ initial findings; (3) the
assault specification, as amended by the members, fails to state an offense;
(4) a bad-conduct discharge is inappropriately severe for the offenses of which
the Appellant was found guilty; (5) the finding of guilty to the disorderly
conduct specification is not legally or factually sufficient; (6) it was plain
error for the military judge to not conditionally dismiss the disorderly con-
duct specification as an unreasonable multiplication of charges with the other
charges. We find merit in AOE (3) and therefore do not address AOEs (1) and
(2) as moot. AOE (4) is not ripe for adjudication based on our resolution of
AOE (3). We find no merit in the remaining AOEs and return the record of
trial to the Judge Advocate General for submission to an appropriate conven-
ing authority. A rehearing on sentence is authorized

I. BACKGROUND

On 20 June 2017 Appellant was the duty noncommissioned officer on
watch in barracks onboard Camp Foster, Okinawa. While on a break, Appel-
lant told the assistant duty Marine that he was “going to visit his homegirl
and maybe take a nap in [her] room.” Appellant then left his barracks and
walked to Sergeant E.H.’s barracks. He had met Sergeant E.H. once before
and stayed in touch with her via text messages. When he tried to enter Ser-
geant E.H.’s barracks he was questioned by several Marines as to who he
was. Appellant falsely claimed that he was with the Transportation Support
Battalion and gained entry to the barracks. Appellant then went to Sergeant
E.H.’s room and knocked on her door, but she was not present. Appellant
departed the barracks, but returned several hours later and made the same
misrepresentation in order to gain access to the building. On his second visit,
the Appellant knocked on Sergeant E.H.’s door and she answered. Sergeant
E.H. testified that Appellant pushed past her to get into her room uninvited.
Once in the room, Appellant removed his cover, duty belt, and his blouse.
Sergeant E.H. moved to her bed out of fear and climbed under the sheets. She
had a knife near the bed, which she grabbed and placed under her sheets.
Appellant moved toward Sergeant E.H.’s bed and asked her to dance with

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him. Sergeant E.H. testified that Appellant then “leaned his body over [her]
legs, holding them down.” Sergeant E.H. retrieved her cell phone and text-
messaged Sergeant T, her barracks’ duty noncommissioned officer. Sergeant
E.H. told Sergeant T to “come bang on the door;” that she needed help; that
she was not kidding; and that he needed to come to “kick [Appellant] out.”
Sergeant E.H. asked Appellant to leave her room, but he refused. Ser-
geant T then arrived and, after speaking briefly to Sergeant E.H., escorted
Appellant from the room. Shortly thereafter, Sergeant E.H. text-messaged
Appellant: “next time anyone tells you to leave you [expletive] leave! I was
uncomfortable.” Appellant responded: “yea I should’ve listened to my senses
sorry about that.” This incident formed the basis for all three charges and
specifications against Appellant.
The sole Specification under Charge II, alleging assault consummated by
a battery, in violation of Article 128, UCMJ, read:
In that Sergeant Felix Ayalacruz, U.S. Marine Corps, while
on active duty, did, at or near Okinawa, Japan, on or about 20
June 2017, unlawfully touch and hold down the leg of Sergeant
[E.H.], U.S. Marine Corps, with his hands and arms.
Before deliberations began, the military judge instructed the members on
the elements of simple assault as a potential lesser-included offense of the
charged assault consummated by battery, and how to render findings by
exceptions and substitutions. During their deliberations, the members asked
the military judge whether “physical contact [has] to occur” or whether the
members could “re-write the specification to exclude part 2?” The military
judge instructed that “while the definitions and other instructions indicate
that an offensive touching is not required, such an offensive touching is not
precluded” and that the members “may make findings by exceptions and
substitutions . . . by striking certain language in the specification similar to
the example number one on page 8 [of Appellate Exhibit XLIV].” The mem-
bers resumed deliberations and subsequently informed the military judge
that they had reached a verdict.
Upon his review of the findings worksheet, the military judge determined
that the members failed to properly except language from the Specification.
He instructed the members that “all of the portions of the worksheet that do
not apply, you should draw a line through all of that. Only leave what you’re
going to be reading clear.” Soon thereafter the members returned with a
“corrected” findings worksheet, but the military judge found another error.
This time the members indicated that they had found the Appellant guilty of
offenses under Charges I and II, but crossed out both the “guilty” and “not
guilty” options pertaining to the charges. In other words, the members did
not indicate that they had found the Appellant guilty of the charge, despite

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indicating guilt as to the corresponding specification. The military judge then
sent the members back to the deliberation room with a new findings work-
sheet. The members filled out this findings worksheet and returned it to the
military judge, who declared it in proper form.
The members announced that the Appellant was guilty by exceptions and
substitutions to Charge I (Dereliction of Duty), and guilty to Charge III (Dis-
orderly Conduct). As to Charge II, the members found the appellant guilty of
the lesser-included offense of Simple Assault, by exceptions alone. For the
Specification of Charge II, the members announced: “guilty, except the words
‘that the accused did so by touching and holding down [Sergeant E.H.’s] leg
with his hands and arms and that the attempt or offer was done with unlaw-
ful force or violence.” The court-martial then recessed for the evening.
During the overnight recess the military judge determined that the mem-
bers’ finding for Charge II, as announced in court, amounted to acquittal
since the members excepted two elements of the charge. In court the next day
the military judge held that the announcement may have been in error and
was “certainly ambiguous.” He brought the members back into the courtroom,
invoked RULE FOR COURTS-MARTIAL (R.C.M.) 922, MANUAL FOR COURTS-
MARTIAL, UNITED STATES (MCM) (2016 ed.) and provided them with an in-
struction that “[a]lthough you indicated a finding of guilty to the Charge
itself, by excepting the words you selected and not substituting any language
. . . your findings are ambiguous as to the guilt for that specification.” He
added: “if you only intended to except language without replacing it with
other language then the form is correct, but the finding of guilt is not and
must be so reflected on the worksheet . . . [if] you did in your earlier delibera-
tions identify a different manner in which you believe a simple assault oc-
curred—and again, without further deliberation—please identify that by
substituting that manner on the form.”
The members returned to the deliberation room and, after discussing for
approximately 20 minutes, returned a revised findings worksheet, and pro-
ceeded with a second announcement:
Under the Sole Specification of Charge II: Not Guilty;
Of the lesser included offense to the Sole Specification of
Charge II Simple assault: Guilty, except the words “that on or
about 20 June 2017, at or near Okinawa, Japan, the accused
attempted or offered to do bodily harm to Sergeant [E.H.]. That
the accused did so by touching and holding down Sergeant
[E.H.’s] leg with his hands and arms and that the attempt or
offer was done with unlawful force or violence,” and substitut-
ing therefor the words “that on or about 20 June 2017, at or
near Okinawa, Japan, the accused offered to do bodily harm to

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Sergeant [E.H.] and that the accused’s acts were intentional
and foreseeably caused Sergeant [E.H.] to reasonably believe
that force would be immediately applied to her person.” Of the
excepted words, Not Guilty. Of the substituted words, Guilty.
To Charge II: Guilty. 1
Additional facts necessary to resolution of the issues are contained in the
discussion.

II. DISCUSSION

A. The Findings on Charge II and its Specification
Appellant claims that the members’ second announcement of their find-
ings for Charge II amounted to an acquittal because it failed to state an of-
fense. We agree.
We review failure to state offense claims de novo. United States v. Sutton,
68 M.J. 455, 457 (C.A.A.F. 2010) (citing United States v. Crafter, 64 M.J. 209,
211 (C.A.A.F. 2006). We reject the Government’s contention that Appellant
failed to preserve this issue at trial, requiring us to test for plain error. After
the members’ first findings announcement, the Defense objected both orally
and in a written bench brief to permitting the members to render any
amended findings because their first findings announcement had already:
. . . clearly found that there was no unlawful force or violence,
nor was there any actus reus that actually manifested as an of-
fer or attempt. As such, the only reasonable interpretation of
any reviewer is that there are insufficient factual findings to
support a conviction and [the Appellant] is not guilty of Charge
II.
Appellate Exhibit LIV at 2.
The military judge ruled, “so to the extent that [Appellant’s] bench brief is
considered a motion, that motion is denied.” Therefore, in light of the unique
facts of this case, we are presented with the issue of whether the members’
second findings announcement (to which the Defense had objected in toto)
resulted in an acquittal to the allegation of simple assault because the mem-
bers failed to find the essential element of unlawful force or violence. To
require more from the Defense would needlessly elevate form over substance

1 Record at 585-86.

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and frustrate modern practice which generally requires only one objection to
preserve a point. Cf. MILITARY RULE OF EVIDENCE 103(b) (no need to renew
evidentiary objection after definitive ruling).
Simple assault requires an attempt or offer to do bodily harm and that
said attempt or offer be done with unlawful force or violence. MCM, Pt. IV,
¶ 54; United States v. Milton, 46 M.J. 317, 318 (C.A.A.F. 1997); United States
v. Ashford, No. 200000746, 2002 CCA LEXIS 33, *8 (N-M. Ct. Crim. App. 14
Feb. 2002) (unpub. op.). Unlawful force or violence means that the contact,
offer, or attempt was wrongfully caused. United States v. Bonner, 70 M.J. 1, 3
(C.A.A.F. 2011).
It appears the members may have intended to find Appellant guilty of an
offer type simple assault, a lesser-included offense of the assault consummat-
ed by a battery that was charged in the Specification of Charge II. The way
the members announced their findings, however, was most unusual. In an-
nouncing their findings the second time, the members excepted language that
was not contained in the referred specification, but rather was language the
military judge used to list the elements of the lesser-included offense in his
instructions. 2 Moreover, the language that the members “substituted” consti-
tuted an amalgam of the military judge’s list of lesser-included offense ele-
ments—all of which the members had just “excepted”—and his further in-
structions describing the mens rea required for a simple assault. 3 Instead of
creating a valid specification containing the essential elements of the offense
of simple assault, the members merely regurgitated a portion of the military
judge’s explanation of what an offer-type simple assault is, omitting the
essential element of “unlawful force or violence.”
The members may have been inadvertently led into this error when the
military judge, without objection from the trial or defense counsel, used the
same actus reus, to wit: “unlawfully touch and hold down the leg of Sergeant
[E.H.] with his hands and arms,” as the second element for both the charged
assault consummated by a battery and its lesser-included offense of simple
assault. Using that actus reus in the simple assault elements left the mem-

2 See AE XLIV at 4. We note that the members made this same type of mistake
when they made their first announcement of findings for Charge II. See Record at
569-70.
3 “For an offer type simple assault, you must be satisfied beyond a reasonable
doubt that the accused’s acts were intentional and foreseeably caused Sgt E.H. to
reasonably believe that force would immediately be applied to her person.” AE XLIV,
page 4 (italics added).

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bers adrift if they did not believe Appellant had unlawfully touched Sergeant
E.H.’s leg. It is also unclear why, under the circumstances of this case, the
members would only find Appellant guilty of simple assault if they believed
that he unlawfully touched her leg.
Members may only except language from specifications, not from instruc-
tions. “One or more words or figures may be excepted from a specification
and, when necessary, others substituted, if the remaining language of the
specification, with or without substitutions, states an offense[.]” R.C.M.
918(a)(1), Discussion. Since the members were using a list of elements, not a
properly referred specification, as the basis for their exceptions and substitu-
tions, their action in “excepting” language was clearly improper. Their action
in “substituting” language in order to form a lesser-included offense of the
actual specification could have been proper if it stated an offense, but we
agree with Appellant that it does not.
The Government urges us to invoke the “implied element” doctrine to fill-
in the missing element. See United States v. Smith, 39 M.J. 448, 452
(C.A.A.F. 1994) (noting challenged guilty finding “must expressly or by fair
implication allege an act” constituting the elements of the offense) (citations
omitted). We have held that finding the existence of elements in a specifica-
tion by necessary implication is disfavored. E.g., United States v. Key, 71 M.J.
566, 572 (N-M. Ct. Crim. App. 2012) (citing United States v. Ballan, 71 M.J.
28, 33-34 (C.A.A.F. 2012)). Application of the doctrine is also confusing. See
United States v. Parker, 71 M.J. 594, 620 (N-M Ct. Crim. App. 2012) (“given
the framework established in Fosler, Ballan and Humphries, a certain
amount of judicial opaqueness still exists as to the limits of the necessarily
implied theory”). The requirement that elements be expressly included or
necessarily implied in a specification normally serves to ensure that an ac-
cused has notice of what to defend against and to protect against double
jeopardy. Whatever the doctrine’s applicability to findings by exceptions and
substitutions may be, it has no bearing on the specifics of this case where the
members’ findings “eliminated the gravamen of the . . . offense . . .,” 4 i.e., the
essential element of unlawful force or violence.
As we have held before, “[a] finding of guilty to the overall charge, but not
guilty to one of the elements of the charge through exceptions and substitu-
tions, amounts to a finding of not guilty.” United States v. Joseph, No.
201300460, 2015 CCA LEXIS 54, *6 (N-M. Ct. Crim. App. 19 Feb. 2015)

4 See Smith, 39 M.J. at 452.

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(unpub. op.). See also Smith, 39 M.J. at 451-453 (if a finder of fact excepts an
essential element of a charged offense, we are not at liberty to fill it back in,
even if we believe that the evidence presented at trial supports proof of that
element).
Accordingly, under the particular facts of this case, we find that the
amended findings of guilty to Charge II and its Specification are fatally defec-
tive and must be set aside. 5

B. Appellant’s Conviction of Disorderly Conduct is Legally and Fac-
tually Sufficient
We review questions of legal and factual sufficiency de novo. Art 66(c),
UCMJ; United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).
“The test for legal sufficiency is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” United
States v. Robinson, 77 M.J. 294, 297-98, (C.A.A.F. 2018) (quoting United
States v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017)).
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, [this Court is] convinced of appellant’s guilt beyond a reasona-
ble doubt.” Rosario, 76 M.J. at 117 (quoting United States v. Oliver, 70 M.J.
64, 68 (C.A.A.F. 2011)) (internal quotation marks omitted) (emphasis omit-
ted). In conducting this unique appellate function, we take “a fresh, impartial
look at the evidence,” applying “neither a presumption of innocence nor a
presumption of guilt” to “make [our] own independent determination as to
whether the evidence constitutes proof of each required element beyond a
reasonable doubt.” Washington, 57 M.J. at 399. Proof beyond a reasonable

5 While we find, as explained above, that the Appellant preserved his failure to
state an offense claim, we would have reached the same result even if we held that
Appellant had forfeited his claim and only tested for plain error. “[F]or an appellant
to prevail under plain error review, there must be an error, that was clear or obvious,
and which prejudiced a substantial right of the accused.” United States v. Coleman,
79 M.J. 100, 102 (C.A.A.F. 2019) (citation omitted). As noted above, the members
failed to find an essential element of the offense at issue, a clear and obvious error.
As a result, Appellant stood wrongly convicted of a crime for which he had been duly
acquitted. That is clear prejudice to his substantial constitutional and codal rights
under any standard of review.

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doubt does not mean, however, that the evidence must be free from conflict.
United States v. Goode, 54 M.J. 836, 841 (N-M. Ct. Crim. App. 2001).
In order to sustain Appellant’s conviction for a violation of Article 134,
UCMJ, as charged in the Specification of Charge III, the Government must
have proven beyond a reasonable doubt that: (1) Appellant was disorderly;
and, (2) his conduct was to the prejudice of good order and discipline in the
armed forces and of a nature to bring discredit upon the armed forces.
10 U.S.C. § 934 (2006); MCM, Part IV, ¶ 73(b); Charge Sheet.
After carefully reviewing the record of trial and considering the evidence
in the light most favorable to the Prosecution, we are convinced that a ra-
tional fact-finder could have found all the essential elements beyond a rea-
sonable doubt. Additionally, after weighing the evidence and having made
allowances for not having personally observed the witnesses, we are con-
vinced beyond a reasonable doubt of Appellant’s guilt. Appellant brushed
past Sergeant E.H. to enter her room uninvited; asked her to dance with him
after removing his shirt; made Sergeant E.H. so concerned for her safety that
she felt it necessary to grab a knife and summon the barracks duty officer to
come to her immediate assistance; and caused the barracks duty officer, a
fellow sergeant, to escort Appellant from Sergeant E.H.’s room. We find this
conduct more than sufficient to “affect the peace and quiet of persons who
may witness it and who may be disturbed or provoked to resentment there-
by.” MCM, Part IV, ¶ 73(c)(2).

C. The Military Judge Did Not Commit Plain Error by Failing to
Dismiss Charge III as an Unreasonable Multiplication of Charges
For the first time on appeal, Appellant claims that the military judge
erred by not dismissing Charge III due to an unreasonable multiplication of
charges. Since Appellant did not object at trial we test the military judge’s
decision for plain error. United States v. Harcrow, 66 M.J. 154, 156 (C.A.A.F.
2008). Appellant has the burden of establishing error that is clear or obvious
and that results in material prejudice to his substantial rights. United States
v. Akbar, 74 M.J. 364, 392-93 (C.A.A.F. 2015).
“What is substantially one transaction should not be made the basis for
an unreasonable multiplication of charges against one person.” R.C.M.
307(c)(4). We consider five non-exclusive factors to determine whether there
was an unreasonable multiplication of charges: (1) whether Appellant object-
ed at trial; (2) whether each charge and specification was aimed at distinctly
separate criminal acts; (3) whether the number of charges and specifications
misrepresented or exaggerated Appellant’s criminality; (4) whether the num-
ber of charges and specifications unreasonably increased Appellant’s punitive
exposure; and (5) whether there is any evidence of prosecutorial overreaching
or abuse in the drafting of the charges. United States v. Quiroz, 55 M.J. 334,

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338-39 (C.A.A.F. 2001). No one particular factor is a necessary prerequisite.
Instead, these factors are weighed together, and “one or more . . . may be
sufficiently compelling[.]” United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F
2012); see United States v. Forrester, 76 M.J. 389, 394-95 (C.A.A.F. 2017).
The first factor clearly weighs against Appellant—he failed to object at
trial. The second factor is more difficult to analyze since the members except-
ed all the language from the Dereliction of Duty specification that specifically
described the actions the Government alleged constituted the dereliction.
Notwithstanding the uncertainty over exactly what acts the members found
constituted dereliction, we find it sufficient that Appellant’s general conduct
in taking his duty break in Sergeant E.H.’s barracks room after lying to the
barracks duty officers about the unit to which he belonged is a distinctly
separate act from his behavior inside Sergeant E.H.’s room that constituted
disorderly conduct. The third factor also weighs against Appellant since we
do not find that the charges exaggerate Appellant’s criminality, but merely
cover the breadth of his behavior in this incident. The fourth factor weighs
against Appellant since Charge III only added four months to his maximum
punishment. Additionally, there could have been no prejudice from this factor
since the members did not adjudge any confinement. Finally, we see no evi-
dence of prosecutorial overreach or abuse in referring these three charges and
specifications against Appellant.

D. Sentence Reassessment
Having set aside the findings of guilty to Charge II and its Specification,
we must now determine if we are able to reassess the Appellant’s sentence.
We have “broad discretion” when reassessing sentences. United States v.
Winckelmann, 73 M.J. 11, 12 (C.A.A.F. 2013). However, we can only reassess
a sentence if we are confident “that, absent any error, the sentence adjudged
would have been of at least a certain severity[.]” United States v. Sales, 22
M.J. 305, 308 (C.M.A. 1986). A reassessed sentence must not only “be purged
of prejudicial error [but] also must be ‘appropriate’ for the offense[s] in-
volved.” Id.
In determining whether to reassess a sentence or to order a sentencing
rehearing, we consider the five factors espoused in our superior court’s hold-
ing in Winckelmann: (1) whether there has been a dramatic change in the
penalty landscape and exposure; (2) the forum of the court-martial;
(3) whether the remaining offenses capture the gravamen of the criminal
conduct; (4) whether significant aggravating circumstances remain admissi-
ble and relevant; and (5) whether the remaining offenses are the type with
which we as appellate judges have experience and familiarity to reasonably
determine what sentence would have been imposed at trial. Winckelmann, 73
M.J. at 15-16.

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Under the circumstances of this case, we do not feel it is appropriate for
us to reassess Appellant’s sentence. The penalty landscape has changed in an
uncertain way. Although the simple assault conviction that we set aside did
not, per se, authorize a bad-conduct discharge, we cannot know how much the
assault affected the members’ sentence determination—especially since the
remaining offenses were relatively minor offenses which often do not result in
punitive discharges. The convening authority is authorized to order a rehear-
ing on sentence.

E. Errors in the Convening Authority’s Action
The convening authority’s action contains two errors. First, it fails to indi-
cate that Appellant was arraigned on a charge and specification alleging a
violation of Article 107, UCMJ, that was subsequently withdrawn and dis-
missed. The remaining charges were then renumbered. Second, it recites the
members’ first announced findings to Charge II and its Specification rather
than their subsequent clarified findings.
A court-martial promulgating order must contain “a summary of all
charges and specifications on which the appellant was arraigned” and “the
findings or disposition of all charges and specifications on which the appel-
lant was arraigned.” R.C.M. 1114(c)(1).
The failure to reflect accurate information in the promulgating order was
error; however, the error was harmless as it did not materially prejudice the
Appellant’s substantial rights. To ensure the Appellant has an official record
which accurately reflects his proceedings, we order that the supplemental
promulgating order reflect the correct information.

III. CONCLUSION

After careful consideration of the record, the parties’ briefs , and oral ar-
gument, the findings of guilty to Charge II and its Specification are SET
ASIDE and DISMISSED WITH PREJUDICE. The sentence is SET
ASIDE. The remaining findings are correct in law and fact. Arts. 59 and 66,
UCMJ. The convening authority may order a rehearing on sentence or ap-
prove a sentence of no punishment. United States v. Clark, 62 M.J. 195, 201
(C.A.A.F. 2005).
The new convening authority’s action shall indicate that Appellant was
arraigned on four charges and specifications and that the original Charge II
was withdrawn and dismissed and the remaining charges were renumbered.
It shall also correctly reflect the findings to all charges and specifications
including that renumbered Charge II and its Specification were dismissed
with prejudice.

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Senior Judge KING and Judge ATTANASIO concur.

FOR THE COURT:

RODGER A. DREW, JR.
Clerk of Court

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