United States v. Hanabarger [opinion link here]
Appellant was convicted of two specifications of sexual assault in violation of Article 120 of the Uniform Code of Military Justice (UCMJ). First, Appellant was convicted of penetrating a female Staff Sergeant’s (SSgt Charlie) vulva with his penis by causing bodily harm—without her consent. Second, doing so again hours later when he knew or reasonably should have known she was asleep.
Appearing before the NMCCA, Appellant submits four assignments of error. However, the majority reaches its conclusion focusing exclusively on his first assignment of error—whether the evidence presented is legally and factually insufficient to support Appellant’s convictions. In this 2-1 decision, the Court found that the presented—namely, the admitted evidence and trial testimony—did not “eliminate every fair and reasonable hypothesis except guilt.”
 The additional assignments of error—though not addressed by the majority as they found the evidence lacking to support the conviction—include:
(2) the trial counsel committed prosecutorial misconduct by introducing evidence of bruising to SSgt Charlie’s inner thighs at trial after unequivocally promising during pretrial litigation that he would not do so; (3) the military judge erred in denying a Defense motion to compel production of the lead Naval Criminal Investigative Service [NCIS] agent who investigated the case; and (4) Appellant’s trial defense counsel were constitutionally ineffective.
 The dissent, however, while finding the evidence to be sufficient, would have decided the case based upon the second and third assignments of error.
 The Court explains that “[a]fter reviewing the record, focusing solely on the admitted evidence and testimony at trial, we are not persuaded the Government proved its case beyond a reasonable doubt.”
The 0430 Incident (Specification 1 of the Charge)
During the drive back to Camp Pendleton from SSgt Charlie’s home, Appellant bragged about his recent relations with the Staff Sergeant to two junior Marines who were also present at the home. Appellant described having sex “a couple of times.” However, seemingly unconcerned about sexual assault, SSgt Charlie sought only to know if the Appellant “pulled out.” Consequently, the Court declared that “[t]he existence of at least one other ‘fair and rational hypotheses’ other than guilt precludes us from being convinced beyond a reasonable doubt that this act occurred without SSgt Charlie’s consent.”
The 0900 Incident (Specification 2 of the Charge)
At trial, SSgt Charlie testified that she awoke to a knock on the door and found Appellant “aggressively penetrating her vulva with his penis.” At this, the Court noted that she “made no indication of distress, shock, or other outward signs, but only got out of bed, put on a robe, and answered the door.”
What is more, when Cpl Alpha knocked on the door, she inquired as to whether the occupants were “decent” to which Appellant replied, “No. Definitely not.” At bottom, deciding between two possibilities, the Court determined that the Government had not met its burden to prove a “sexual assault beyond a reasonable doubt, and in the process render the other possible consensual in flagrante delicto scenario fanciful conjecture.”
Accordingly, the Court found the evidence presented in the case insufficient and unable to sustain the convictions. Further still, the Court determined that the Government had not met its burden to prove its case beyond a reasonable doubt. For the Court, there was simply “too much reasonable doubt” surrounding the evidence.
 On one hand, the Court reasoned, Appellant’s response to Cpl Alpha would have roused SSgt Charlie as his mouth, based on their “spooning” positioning, would be close to her ear as he was assaulting his sleeping victim. However, an equally plausible explanation would conclude that the two were engaged in a consensual encounter and issued a warning to Cpl Alpha that they were “not decent.”
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