The AFCCA affirmed the findings and sentence of MSG Anthony W. Harris, Jr., finding no error materially prejudiced his substantial rights.
Appellant was convicted, contrary to his pleas, of one specification of sexual assault by causing bodily harm and one specification of abusive sexual contact in violation of Article 120, UCMJ.
Harris opinion here.
Appellant was convicted of touching A1C DG’s genitals when he knew A1C DG was asleep with the intent to gratify his sexual desire; and on a separate occasion, of causing penetration of Appellant’s mouth by SrA LS’s penis without SrA LS’s consent.
After a night of drinking on 2 August 2017, A1C DG fell asleep on the couch of Appellant’s dormitory room. He doesn’t remember much of anything happening during the night but woke up in his own dormitory room in the morning. TSgt VC testified she had A1C DG sleep on the sofa and at this time, A1C DG was fully clothed with a blanket over him. TSgt VC next awoke to find Appellant standing and pulling A1C DG, who was not moving, from behind towards Appellant’s bedroom. Appellant told TSgt VC he was just putting A1C DG to bed and pulled him into his room. TSgt VC didn’t see what happened for a couple minutes but while Appellant was in his bathroom, she went to check on A1C DG and found his pants were pulled down with his genitals exposed. She then took A1C DG and helped him to his dormitory.
The next morning, Appellant texted TSgt VC saying he was “so sorry” and that he didn’t know what come over him and didn’t know what happened. That morning, TSgt VC explained to A1C DG that she suspected Appellant had sexually assaulted him. A1C DG then reported the incident and underwent a sexual assault forensic exam. The DNA testing results found 93% of the DNA present on the swab used on A1C DG’s penis came from Appellant’s skin cells, which the forensic biologist said indicated it was “more likely due to a ‘wet direct transfer’ rather than a simple dry touch or an indirect transfer from another object with Appellant’s DNA on it.” When interviewed regarding the incident, Appellant acknowledged he picked A1C DG up from the couch but said he didn’t know why he did. He denied knowing A1C DG’s pants were down.
When SrA LS was interviewed as part of the investigation into A1C DG’s report, “he realized the case the agent had described ‘had a lot of similarities’ to an experience SrA LS had with Appellant.” One evening in June or July 2017, SrA LS spent the night drinking and socializing in Appellant’s dormitory room. SrA LS testified he was very intoxicated when he was pulled into Appellant’s room, fell onto Appellant’s bed and Appellant took off his clothes. SrA LS next remembers Appellant putting his penis in Appellant’s mouth, to which SrA LS recalled saying “no” several times, and finally pushing Appellant off him. SrA LS then remembers TSgt DM and A1C JH, two male friends of Appellant, enter the room naked, at which point, all three individuals “took turns attempting to perform oral sex on SrA LS.” Eventually, the activity stopped and SrA LS departed with TSgt DM to SrA LS’s dormitory room.
A1C JH and TSgt DM both testified under grants of testimonial immunity, offering very different accounts and claiming to have no memory of significant portions of the night. While A1C JH couldn’t testify as to Appellant and SrA LS’s interactions in Appellant’s room, TSgt DM testified that he saw SrA LS lying face-down on Appellant’s bed with Appellant lying on top of him and A1C JH sitting nearby on the bed, all three of them naked. TSgt DM saw Appellant kissing and rubbing SrA LS and stated that SrA LS “wasn’t reciprocating.” TSgt DM claims he told Appellant and A1C JH to leave the room and when they did, asked SrA LS if he was “okay”, to which SrA LS responded that he was not “comfortable” but would be “okay” if he could go to sleep and “nobody touche[d] [him].”
Appellant raised four issues on appeal: (1) whether the evidence is legally and factually sufficient to support Appellant’s conviction for sexual assault against SrA LS; (2) whether the evidence is legally and factually sufficient to support Appellant’s conviction for abusive sexual contactagainst A1C DG; (3) whether the military judge erred by failing to instruct the court members that SrA LS was capable of consenting to the alleged sexual act; and (4) whether the convening authority was constitutionally required to direct a post-trial session or a new trial in light of SrA LS’s testimony having materially changed months after Appellant was convicted. The court additionally considered whether Appellant is entitled to relief for facially unreasonable appellate delay.
Viewing all of the evidence in the light most favorable to the Prosecution, the court found that “a reasonable factfinder could have found all the essential elements beyond a reasonable doubt” and therefore, the conviction was legally sufficient. The court was also convinced of Appellant’s guilt beyond a reasonable doubt, finding the conviction factually sufficient.
2. Legal and Factual Sufficiency for A1C DG
Appellant also challenged the evidence supporting his conviction of abusive sexual contact upon A1C DG because while TSgt VC saw Appellant moving A1C DG, she did not see Appellant touch his penis. The charge of abusive sexual contact required the government to show: (1) Appellant directly touched A1C DG’s genitalia; (2) Appellant did so while A1C was asleep; (3) that Appellant knew A1C DG was asleep; and (4) Appellant did so with the intent to gratify his sexual desire. The court concluded that Appellant had a couple minutes before TSgt checked on A1C DG in Appellants room and additionally had the opportunity to touch A1C DG’s penis while A1C DG was asleep on the sofa, before moving A1C DG and waking up TSgt VC. This conclusion combined with the weight of expert testimony and other evidence suggesting a “wet direct transfer” of Appellant’s DNA onto A1C DG’s penis led the court to conclude the evidence was both legally and factually sufficient.
3. Defense-Requested Instruction
Appellant argued that the “constitution required” the military judge to instruct the court members that SrA LS was capable of consenting to the alleged sexual act by Appellant, because a bodily harm theory of sexual assault, which Appellant was charged with, “requires proof the act was done without . . . lawful consent” and that theory is “mutually exclusive” with an “incapacitation theory require[ing] proof the alleged victim was unable to say ‘no’ because of ‘impairment.’” In order to show a military judge erred in denying a requested instruction, Appellant needed to show: (1) [the requested instruction] is correct; (2) it is not substantially covered in the main [instruction]; and (3) it is on such a vital point in the case that the failure to give it deprive [Appellant] of a defense or seriously impaired its effective presentation. United States v. Carruthers, 64 M.J. 340, 346 (C.A.A.F. 2007). The court reviewed the military judge’s denial of a defense-requested instruction for abuse of discretion. According to the Manual for Courts-Martial, “[l]ack of consent may be inferred based on the circumstances of the offense. All of the surrounding circumstances are to be considered in determining whether a person gave consent . . . .” pt. IV ¶45.a.(g)(8)(C).
The court determined that the military judge “correctly concluded that SrA LS’s level of intoxication was part of the surrounding circumstances the court members could evaluate to determine whether he actually consented, or potentially whether Appellant made a reasonable mistake of fact as to whether SrA LS consented.” Further, the court noted that evidence in a particular case may very well meet the elements of multiple offenses, and it would not be correct to instruct court members to presume “that SrA LS was capable of consenting to sexual activity simply because Appellant was charged under a bodily harm theory of sexual assault rather than a theory that he was incapable of consenting.” The court therefore found that Appellant did not meet his burden in showing the first of the three necessary prongs to prevail on appeal, and determined that the military judge did not err in his instructions.
4. Post-Trial Hearing or New Trial
Appellant argued that he suffered a “manifest injustice” that “constitutionally required” the convening authority to take corrective action by directing a post-trial Article 39(a) session or a new trial under Article 73, UCMJ, due to documents produced after the convening authority took action on Appellant’s sentence which indicated: (1) a pending charge that TSgt DM sexually assault SrA LS was dismissed, with SrA LS’s support; and (2) A1C JH was acquitted of one specification of sexually assault SrA LS.”
In considering the convening authority’s failure to direct a post-trial Article 39(a), the court found they could not consider these documents, as they are materials outside of the “entire record” under Article 66, UCMJ. Further, the court noted that the convening authority took action on Appellant’s court-martial months before the developments with TSgt DM and A1C JH, at which point, “the convening authority lost the ability to direct a post-trial hearing, unless and until a reviewing authority authorized him to do so.”
In considering the convening authority’s failure to direct a new trial pursuant to Article 73, the court found that Appellant did not submit a petition for a new trial to The Judge Advocate General, who is the only authority who could act on the petition. The court therefore found both of Appellant’s claims to be without merit.
5. Post-Trial Delay
Appellant’s case was docketed with the court on 21 February 2019, 18 months and 12 days before the court issued this opinion, thereby exceeding the 18 months threshold for a presumptively unreasonable post-trial delay established by CAAF in United States v. Moreno. 63 M.J. 129 (C.A.A.F. 2006). Finding no oppressive incarceration, no rehearing where Appellant’s ability to present a defense could be impaired, and no particularized anxiety raised by Appellant, and considering the substantial record of trial, the court did not find the delay so egregious as to adversely affect the perceived fairness and integrity of the military justice system and deemed relief inappropriate in this case.