United States v. Dawkins ( 2019 )

This opinion is subject to administrative correction before final disposition.
Before
CRISFIELD, HITESMAN, and J. STEPHENS
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Cheveaux DAWKINS
Lieutenant Commander (O-4), MC, U.S. Navy
Appellant
No. 201800057
Decided: 5 September 2019
Appeal from the United States Navy-Marine Corps Trial Judiciary.
Military Judge: Captain Arthur L. Gaston III, JAGC, USN. Sentence
adjudged 15 September 2017 by a general court-martial convened at
Naval Support Activity, Naples, Italy, consisting of officer members.
Sentenced approved by the convening authority: dismissal.
For Appellant: David P. Sheldon, Esq.; Tami L. Mitchell, Esq.; Captain
Thomas R. Fricton, USMC.
For Appellee: Major Kelli A. O’Neil, USMC; Lieutenant Kimberly Rios,
JAGC, USN.
Senior Judge HITESMAN delivered the opinion of the Court, in which
Judge J. STEPHENS joined. Chief Judge CRISFIELD filed a separate
opinion dissenting in part.
_________________________
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under NMCCA
Rule of Practice and Procedure 30.2.
United States v. Dawkins, No. 201800057
_________________________
HITESMAN, Senior Judge:
Appellant was convicted, contrary to his pleas, of attempted sexual assault,
two specifications of abusive sexual contact by bodily harm, 1 and indecent ex-
posure in violation of Articles 80, 120, and 120c, Uniform Code of Military Jus-
tice (UCMJ), 10 U.S.C. §§ 880, 920 & 920c (2016).
The appellant raises 12 assignments of error (AOE). Six AOEs were fully
briefed, one supplemental AOE was allowed by the court 2 and was fully briefed,
and five additional AOEs were identified but lack full briefing. 3 Having exam-
ined the record of trial and the pleadings of the parties, we conclude that AOEs
VII–XI are meritless and warrant neither further discussion nor relief. See
United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987). The remaining AOEs
are:
(I) The improper exclusion of women and African-Americans from the panel
deprived appellant of a fair trial;
(II) The evidence is legally and factually insufficient to sustain appellant’s
convictions;
(III) The military judge erred when he prevented a member’s question from
being asked;
(IV) The trial defense counsel was ineffective for concurring that a mem-
ber’s question should not be asked, for failing to advise appellant that he could
testify and limit the subject matter, for failing to object to text messages be-
tween the appellant and Ms. KL, and for failing to provide additional argument
after stipulating to the admission of text messages between appellant and
Ms. KL;
(V) The appellant’s sentence to dismissal is inappropriately severe;
(VI) A mandatory minimum sentence of dismissal is unconstitutional as a
violation of the Eighth and Fifth Amendments to the United States Constitu-
tion; and
1 The military judge conditionally dismissed Specification 2 of Charge II, upon suc-
cessful appellate review of Charge I, as an unreasonable multiplication of charges.
Record at 916.
2 On 23 April 2019, the Court granted the appellant leave to file a supplemental
assignment of error.
3 AOEs VII through XI were filed pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982).
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United States v. Dawkins, No. 201800057
(XII) The military judge erred by not instructing the members that in order
to convict the appellant of the sexual assault offenses related to Ms. KL, they
had to find that the appellant knew Ms. KL did not consent to the sexual act
and contact.
We find merit in AOE II rendering part of AOE IV and AOEs V, VI, and
XII moot. In our decretal paragraph, we dismiss the Specification of Charge I
and Specifications 2 and 4 of Charge II with prejudice. Finding that we are
unable to reassess the sentence for the remaining offense, we remand the case
for a rehearing on sentence.
I. BACKGROUND
The appellant and Ms. KL were friends and met at a bar in Rota, Spain on
26 March 2016. Ms. KL, a civilian employee of the U.S. Naval Hospital in Rota,
was having dinner and drinks with friends. She contacted the appellant by text
message and let him know she was in the area. The appellant found Ms. KL
and her friends at a bar and they began talking. Ms. KL and the appellant
were still talking when Ms. KL’s friends moved on to another bar.
When Ms. KL and the appellant decided to follow the group, they walked
down a nearby alley towards the beach. As the appellant walked with Ms. KL,
they spoke briefly to a Sailor from the Naval Hospital, Hospital Corpsman Sec-
ond Class (HM2) Collins. Ms. KL and the appellant continued walking and
then stopped in a doorway to sit and talk. They began making out and Ms. KL’s
pantyhose ended up at her knees. Ms. KL was wearing a miniskirt and the
appellant put his hand between her legs, pushed her underwear to the side,
and touched her vagina with his fingers. Ms. KL stood up and took her panty-
hose completely off and put them in her purse. They continued walking and
stopped at the beach where the appellant began kissing Ms. KL while holding
her from behind. Ms. KL could feel the appellant’s penis against her genitals
through her underwear. Ms. KL asked the appellant “not to do it”4 and they
stopped. Ms. KL assumed that the appellant stopped because he could not get
an erection. As the appellant walked Ms. KL to a taxi stand, HM2 Collins no-
ticed them again. The appellant and Ms. KL rode together in a taxi to the place
where Ms. KL had left her car and they parted ways. At 0323 in the morning,
the appellant texted Ms. KL and asked whether she made it home safely.
Ms. KL responded that she had and “thanks.” 5
4 Record (R.) at 515.
5 Defense Exhibit B.
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United States v. Dawkins, No. 201800057
The following weekend, the appellant attended a unit dining-in at the Hotel
Duque de Najera where there was much drinking and revelry. While certain
members of the mess started to change out of their uniforms and into various
themed costumes, Lieutenant (Junior Grade) (LTJG) EA started to feel sick.
The appellant helped her to the ladies’ room, which consists of a small room
with three sinks and two interior small bathrooms that provide complete pri-
vacy. The appellant assisted LTJG EA into a bathroom where she vomited
twice. Lieutenant (LT) KC, a subordinate of the appellant, entered the ladies’
room and then entered one of the bathrooms and changed into her costume.
She then briefly spoke with the appellant and left to check on another sick
officer. LT KC alleges that when she returned to the ladies’ room, the appellant
grabbed her breast with one hand and grabbed her hand with his other hand
and put it on his buttock. LT KC then assisted LTJG EA for some time before
returning to her friends in the main event room.
The appellant was reassigned within the hospital after LT KC reported the
incident a few days later. The appellant’s new office was located in the same
passageway as Ms. KL’s office. Shortly thereafter, Ms. KL reported that the
appellant had sexually assaulted her in the doorway and on the beach.
Additional facts necessary to resolve the AOEs raised are discussed below.
II. DISCUSSION
A. Improper Exclusion of Members
The appellant is an African-American male. For the first time on appeal,
he alleges that he was deprived of a fair trial because the court members de-
tailed to sit at his court-martial were improperly selected in violation of Art.
25, UCMJ, due to the systematic exclusion of African-Americans and women.
RULE FOR COURTS-MARTIAL (RCM) 912(b)(1), MANUAL FOR COURTS-MAR-
TIAL (MCM), UNITED STATES (2016 ed.), provides that, when evidence is dis-
covered that court members may have been selected improperly, a party may
move to stay the proceedings. RCM 912(b)(2) authorizes the military judge to
stay the proceedings until the court members have been properly selected. Fail-
ure to make a timely motion waives the improper selection, unless the im-
proper selection violates RCM 501(a), 502(a)(1), or 503(a)(2). At trial, the de-
fense had the same information relied upon by the appellant today and yet did
not request a stay under RCM 912(b)(1). However, the Court of Appeals for the
Armed Forces (CAAF) finds no waiver where the “objection is based on an al-
legation that the convening authority selected members for reasons other than
those listed in Art. 25, UCMJ.” United States v. Riesbeck, 77 M.J. 154, 160
(C.A.A.F. 2018).
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United States v. Dawkins, No. 201800057
Even if waiver does not apply, we find that the appellant failed to carry the
burden of establishing improper exclusion and selection of members. We re-
view de novo, as a question of law, whether a court-martial panel was selected
by improper exclusion. United States v. Kirkland, 53 M.J. 22, 24 (C.A.A.F.
2000). The appellant must first establish that qualified personnel were improp-
erly excluded from his panel. Id. If the appellant can show exclusion, “the gov-
ernment must show by competent evidence that the member selection process
was free from impropriety.” United States v. Bartee, 76 M.J. 141, 143 (C.A.A.F.
2017).
We first look at the authority of the convening authority. Article 25(d)(2),
UCMJ provides:
[T]he convening authority shall detail as members thereof such
members of the armed forces as, in his opinion, are best qualified
for the duty by reason of age, education, training, experience,
length of service, and judicial temperament.
The convening authority must apply the criteria of Art. 25, UCMJ, in order
to pick those “best qualified” to be members. See United States v. Dowty, 60
M.J. 163, 169 (C.A.A.F. 2004). The appellant is not entitled to a panel that
represents a cross-section of the eligible military population. United States v.
Loving, 41 M.J. 213, 285 (C.A.A.F. 1984). However, gender and race are im-
proper factors for consideration and are not included in Art. 25, UCMJ. See
United States v. Lewis, 46 M.J. 338, 341 (C.A.A.F. 1997) (“Assignment of
women to court-martial panels to achieve a particular result as to findings or
sentence is prohibited.”) (internal quotation and citation omitted); United
States v. Jeter, 78 M.J. 754, 765-66 (N.M. Ct. Crim. App. 2019) (a trial counsel’s
use of a peremptory challenge against a panel member from the accused’s same
cognizable racial group establishes a prima facie case of purposeful discrimi-
nation under Batson v. Kentucky, 476 U.S. 79 (1986), but the absence of such
members in the venire selected by the convening authority does not).
First, the appellant presents no evidence that women were excluded other
than the fact that none eventually sat as members of his court-martial. The
convening authority detailed a female officer but, without objection from trial
defense counsel when specifically asked by the military judge, the government
used a preemptory challenge against her and she was excused. 6 The appellant
6 When the government raised its peremptory challenge, the military judge specif-
ically asked the defense if they had any objections:
MJ: Does the Government have a peremptory challenge?
5
United States v. Dawkins, No. 201800057
presents no other evidence of exclusion, much less improper exclusion, and
therefore fails to establish that all other women were also excluded because of
their gender.
Second, although the exclusion of individuals because of race is improper,
United States v. Santiago-Davila, 26 M.J. 380, 390 (C.M.A. 1988), we find that
the appellant failed to establish that African-Americans were excluded from
his panel. The record before us contains no information on the race of those
members detailed to the court-martial nor of those ultimately empaneled as
members. The court-martial questionnaires do not contain any information on
race 7 and no member was questioned on the record with regard to their race.
However, accepting the appellant’s assertion that no African-Americans were
actually detailed or empaneled, the appellant still fails to produce any evidence
of systemic exclusion. “A prima facie case of systemic exclusion is not estab-
lished by the absence of minorities on a single panel.” Loving, 41 M.J. at 285.
In this case, the appellant has not identified any evidence that the conven-
ing authority improperly excluded qualified personnel from the selection pro-
cess. Instead, he makes a broad assertion that because no African-Americans
and only one female were detailed to his court-martial, the convening authority
must have improperly excluded those groups of people from consideration for
detailing.
The appellant alleges that the exclusion of certain members also consti-
tutes unlawful command influence. “Court stacking” is a form of unlawful com-
mand influence that may occur by the improper exclusion of members based
on race or gender. Loving, 41 M.J. at 286-7. To substantiate such a claim, the
defense has the burden of producing sufficient evidence of unlawful command
influence. United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999). The
quantum of evidence is low but must be more than a bare allegation or mere
speculation. Id. We find that the appellant did not raise the issue at trial, and
ATC: Yes, Your Honor, Commander [C].
MJ: All right. Defense, do you want to raise any issue with respect to
Commander [C]?
DC: No, sir.
MJ: No Batson challenge?
All right. Negative Response from defense counsel. Commander [C]
is excused.
R. at 210-11.
7 AE XXXIV.
6
United States v. Dawkins, No. 201800057
does not raise any evidence here to suggest that the convening authority de-
parted from the bounds of Art. 25, UCMJ, through a systematic exclusion of
African-Americans or women from participation in appellant’s court-martial.
In the absence of any such evidence, we will not assume that the convening
authority in this case improperly excluded qualified personnel, including Afri-
can-Americans and women, from the selection process. Likewise, the appellant
has failed to raise sufficient evidence of unlawful command influence. Accord-
ingly, we find this assignment of error is without merit.
B. Legal and Factual Sufficiency of the Conviction
The appellant contends that the evidence is legally and factually insuffi-
cient to support any of the appellant’s convictions. 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). To determine legal sufficiency, we ask
whether, considering the evidence in the light most favorable to the prosecu-
tion, a reasonable fact-finder could have found all the essential elements be-
yond a reasonable doubt. United States v. Turner, 25 M.J. 324, 324-25 (C.M.A.
1987) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In conducting this
analysis, we must “draw every reasonable inference from the evidence of record
in favor of the prosecution.” United States v. Gutierrez, 74 M.J. 61, 65 (C.A.A.F.
2015). In evaluating factual sufficiency, we determine whether, after weighing
the evidence in the record of trial and making allowances for not having ob-
served the witnesses, we are convinced of the appellant’s guilt beyond a rea-
sonable doubt. Turner, 25 M.J. at 325. 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 inde-
pendent determination as to whether the evidence constitutes proof of each
required element beyond a reasonable doubt.” Washington, 57 M.J. at 399.
However, proof beyond a reasonable doubt does not mean the evidence must
be free from conflict. United States v. Norwood, __ M.J. __, No. 201800038 2019
CCA LEXIS 318, *25 (N-M. Ct. Crim. App. Aug. 9, 2019) (citing United States
v. Rankin, 63 M.J. 552, 557 (N-M. Ct. Crim. App. 2006)).
1. Offenses involving Ms. KL
a. Attempted sexual assault
The appellant was convicted of the attempted sexual assault of Ms. KL. To
support this conviction, the government was required to prove beyond a rea-
sonable doubt that: (1) the appellant did a certain act—touching Ms. KL’s gen-
itals, directly or through clothing, with his penis; (2) the act was done with the
specific intent to commit the offense of sexual assault, to wit: penetrating
Ms. KL’s vulva with his penis, by causing bodily harm to her, to wit: touching
7
United States v. Dawkins, No. 201800057
her genitals with his penis; (3) the act amounted to more than mere prepara-
tion, that it was a substantial step and a direct movement toward the commis-
sion of the intended offense; and (4) such act apparently intended to bring
about the commission of the offense of sexual assault, and the act apparently
would have resulted in the actual commission of the attempted offense. MCM,
Part IV, ¶ 4.b.
The elements of the intended offense of sexual assault are that: (1) the ap-
pellant committed a sexual act upon Ms. KL, to wit: penetrating her vulva with
his penis; (2) the appellant did so by causing bodily harm to Ms. KL, to wit:
penetrating her vulva with his penis, MCM, Part IV, ¶ 45.b.(3)(b); and (3) the
appellant did so without Ms. KL’s consent. Military Judge’s Benchbook
(Benchbook), Dep’t of the Army Pamphlet 27-9 at ¶ 3-45-14, note 2 (1 Sep
2014).
The appellant was also convicted of abusive sexual contact of Ms. KL,
which also served as the act alleged in the specification of attempted sexual
assault. To support this conviction, the government needed to prove beyond a
reasonable doubt that: (1) the appellant committed sexual contact upon
Ms. KL, by touching, directly or through clothing, her genitals with his penis;
(2) the appellant did so by causing bodily harm to Ms. KL, to wit: touching,
directly or through clothing, her genitals with his penis; (3) the appellant did
so with the intent to arouse or gratify his sexual desire, MCM, Part IV,
¶ 45.b.(7)(b); and (4) the appellant did so without the consent of Ms. KL. The
military judge added the fourth element as recommended by the Military
Judge’s Benchbook when “the same physical act is alleged as both the actus
reus and the bodily harm for the charged sexual contact.” Benchbook at ¶ 3-45-
16, note 2.
Ms. KL testified that once they reached the beach, the appellant may have
put one of his arms around her from behind while he held his penis with the
other hand. She did not see the appellant do this, and was unsure if it was
happening, but assumed that it was because of her experience with how men
maneuver “when they come from behind.” 8 She stated that she felt the appel-
lant’s penis touch her vagina through her underwear although she did not tes-
tify that her miniskirt was moved or otherwise manipulated to allow the ap-
pellant access to her genitalia. She testified that she let the appellant kiss her
on the cheek as he was standing behind her. 9 She stated that she felt the ap-
pellant’s penis touch her genitals through her thong underwear. When the trial
8 R. at 514.
9 R. at 531.
8
United States v. Dawkins, No. 201800057
counsel asked Ms. KL what was going through her mind at this point, she
stated, “In my mind I’m just like—the only thing I remember saying [is] that I
don’t want to do this. Don’t do this. In my mind at that point I’m just like just
get this over with so I can leave.” 10 Ms. KL then testified that she asked the
appellant “not to do it” 11 but did not try to physically stop him. Ms. KL assumed
that the appellant stopped because he could not get an erection but denied ever
talking to the appellant about this. Finally, Ms. KL testified that when the
appellant could not get an erection, he stood beside her and masturbated. 12
The military judge instructed the members regarding the mistake of fact
as to consent defense. We are persuaded that the appellant did in fact have an
honest and reasonable belief that Ms. KL was consenting to the sexual touch-
ing up until the point when she asked him “not to do it.”
The appellant and Ms. KL were making out in a doorway just minutes be-
fore they arrived at the beach. During that sexual encounter, Ms. KL and the
appellant were kissing and the appellant touched Ms. KL’s vulva with his fin-
gers after partially removing Ms. KL’s pantyhose. Ms. KL eventually stood up
and completely removed her pantyhose and placed them in her purse. Ms. KL
and the appellant then began walking towards the beach. Ms. KL testified that
the appellant was standing behind her, kissing her cheek and neck, and pre-
sumably holding his penis as he touched her genitals with his penis. Ms. KL
conceded on cross-examination that she let the appellant kiss her as he was
standing behind her.13 Since she actually consented to the kissing, it is reason-
able to believe that the other contemporaneous sexual touching was at least
perceived as consensual up until the point when she asked the appellant “not
to do it.” Ms. KL did not allege that there was any additional touching or kiss-
ing, consensual or otherwise, after she told the appellant “not to do it.” Even
by her account, the appellant ceased sexual contact with her once she mani-
fested a lack of consent. She assumed that he stopped because he could not get
an erection, but she could not know that because she never discussed it with
the appellant. When they left the beach, they were noticed for the second time
that night by HM2 Collins who described them as leaning into each other,
laughing and talking. The appellant and Ms. KL rode together in a taxi to
Ms. KL’s car and they parted ways.
10 R. at 515.
11 Id.
12 R. at 514.
13 R. at 531.
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United States v. Dawkins, No. 201800057
“When weighing the credibility of a witness, this court, like a fact finder at
trial, examines whether discrepancies in witness testimony resulted from an
innocent mistake, such as a lapse of memory, or a deliberate lie.” United States
v. Patrick, 78 M.J. 687, 715 (N-M. Ct. Crim. App. 2018) (quoting United States
v. Berger, No. 201500024, 2016 CCA LEXIS 322 at *36 (N-M. Ct. Crim. App.
26 May 2016), rev’d on other grounds, 76 M.J. 128 (C.A.A.F. 2017)). Here, it is
apparent by their findings on other charged offenses that the members did not
believe much of Ms. KL’s testimony. They did not believe her testimony con-
cerning her lack of consent to recent sexual activity in the doorway that took
place just a few minutes before they got to the beach. When Ms. KL testified,
she provided the only evidence that the appellant masturbated on the beach.
The members clearly did not believe her because they convicted the appellant
of indecent exposure but excepted the word “masturbating.” The appellant
raises many additional issues and inconsistencies with Ms. KL’s testimony
casting doubt on her credibility and motives. However, we need not analyze
Ms. KL’s credibility further because we reach our conclusion by relying on her
testimony as given. She consented to the appellant kissing her cheek as he was
standing behind her touching her genitalia with his penis. She voiced her ob-
jection to having sex with the appellant when she “asked [him] not to do it” 14
and she did not allege that any further sexual contact occurred after that. We
do not need to decide whether the appellant stopped because she told him to
stop or whether he stopped because he could not get an erection. The record
contains no other evidence of this beyond Ms. KL’s speculation. The record is
also devoid of any evidence of further sexual touching by the appellant after
Ms. KL asked him “not to do it.” Considering the entire event in context, it
would have been reasonable for the appellant to believe that the sexual contact
was consensual up until Ms. KL asked him “not to do it.”
We also find the appellant’s reasonable mistake of fact as to consent, cou-
pled with the fact that he stopped when Ms. KL asked him “not to do it,” ne-
gates any suggestion that the appellant had the specific intent to sexually as-
sault Ms. KL, the second element of the attempt offense.
After reviewing the record of trial considering the evidence in the light most
favorable to the prosecution, we acknowledge that a reasonable fact-finder
could have found that all of the elements of abusive sexual contact and at-
tempted sexual assault were established beyond a reasonable doubt. However,
after weighing the evidence in the record of trial ourselves and making allow-
ances for not having personally observed the witnesses, we are not convinced
that there was any sexual contact with Ms. KL after she voiced her non-con-
14 R. at 515.
10
United States v. Dawkins, No. 201800057
sent and we are likewise not convinced beyond a reasonable doubt of the ap-
pellant’s guilt. Accordingly, we find that the evidence is factually insufficient
to convict the appellant of an abusive sexual contact upon, and attempted sex-
ual assault of, Ms. KL. We set aside the convictions for these offenses and con-
sider reassessing the sentence below.
b. Indecent exposure
The appellant was also convicted of indecent exposure. To support this con-
viction, the government was required to prove beyond a reasonable doubt that:
(1) the appellant exposed his genitals, (2) the exposure was in an indecent man-
ner to wit: masturbating on a public beach, and (3) the exposure was inten-
tional. MCM, Part IV, at ¶ 45c.b.(6). “Indecent manner” is defined as “that form
of immorality relating to sexual impurity which is not only grossly vulgar, ob-
scene, and repugnant to common propriety, and tends to excite lust and de-
prave the morals with respect to sexual relations.” Article 120c(d)(6), UCMJ.
The military judge instructed the members that they should consider all of the
facts and circumstances surrounding the exposure including whether Ms. KL
consented to the exposure, whether the exposure was in public or private, and
whether there was any prior relationship between the appellant and Ms. KL. 15
The members found the appellant guilty of indecent exposure but excepted
the word “masturbating.” The appellant asserts that merely exposing one’s
genitalia in a public place is not indecent, per se. We agree that it is not per se
indecent and we look to case law for objective factors to help define the param-
eters of the term “indecent manner.” We note that three factors have generally
been considered to determine whether exposure was done in an indecent man-
ner: (1) lack of consent; (2) involvement of a child; and (3) public visibility.
United States v. Johnston, 75 M.J. 563, 567 (N-M. Ct. Crim. App. 2016).
In a non-public setting, consensual sexual activity and exposure may be
non-criminal conduct even if others may consider it indecent. Because we have
determined that the appellant was under a reasonable mistake of fact as to
Ms. KL’s consent and because the sexual activity was occurring on a public
beach as opposed to a private bedroom, we find that consent, as a factor of
indecency, is not helpful in this case. Likewise, Ms. KL is an adult and there
are no children involved. Public visibility is the only relevant factor regarding
indecency in this case. Although no longer a required element of indecent ex-
posure, an exposure in a public setting may still render an exposure indecent.
Id.15 R. at 802.
11
United States v. Dawkins, No. 201800057
Here, Ms. KL testified that she assumed the appellant was holding his pe-
nis in his hand and she could feel it touching her genitals. Although Ms. KL
testified that she saw the appellant’s penis, she does not state exactly when
she saw it. Rather, when asked twice by the trial counsel if she saw his penis,
Ms. KL first replied “yes” but then described in detail how it felt. The second
time she was asked if she saw his penis, Ms. KL answered: “Well, I just—you
know what they feel like. I mean, yes.” 16 Finally, Ms. KL stated that after the
appellant stopped because he could not get an erection, he stood beside her and
masturbated. Again, Ms. KL did not specifically say that she saw the appel-
lant’s penis, only that he masturbated. The members could have drawn a rea-
sonable inference that if the appellant was masturbating, his penis would have
been exposed. However, even though the members convicted the appellant of
indecent exposure by excepting the word “masturbating,” that does not neces-
sarily mean that they did not think his penis was exposed—only that they did
not believe he was masturbating. To convict, the members only needed to find
that the appellant’s penis was in fact exposed in an indecent manner, not that
Ms. KL necessarily saw it. Ms. KL testified that she knows what a penis feels
like on her genitals and that is what she felt. Members could reasonably infer
that the appellant’s penis was exposed at some time during the sexual activity.
Moreover, the members could reasonably conclude that because the appellant’s
penis was exposed while he was standing behind Ms. KL engaged in sexual
contact on a well-lit public beach, the exposure was in an indecent manner.
The appellant next asserts that the members could not find him guilty by
excepting the word “masturbating” because that created a fatal variance be-
tween what he was charged with and what he was found guilty of. See United
States v. Teffeau, 58 M.J. 62, 66-7 (C.A.A.F. 2003) (holding that exceptions and
substitutions in findings become fatal to a specification where the variance is
both material and prejudicial). We disagree.
“Whether there was a fatal variance is a question of law reviewed de novo.”
United States v. Treat, 73 M.J. 335 (C.A.A.F. 2014) (citing United States v. Sal-
azar, 44 M.J. 464, 471 (C.A.A.F. 1996)). Absent trial defense counsel objection,
we review findings by exceptions and substitutions for plain error. Id. To con-
vince us of plain error the appellant has the burden to establish (1) there was
error, (2) the error was plain or obvious, and (3) the plain error affected the
appellant’s substantial rights. United States v. Finch, 64 M.J. 118, 121
(C.A.A.F. 2006).
A variance is material if it “substantially changes the nature of the offense,
increases the seriousness of the offense, or increases the punishment for the
16 R. at 514.
12
United States v. Dawkins, No. 201800057
offense.” Finch, 64 M.J. at 121. RCM 918(b) allows a finder of fact to make
findings by exceptions but the exceptions cannot “substantially change the na-
ture of the offense.” United States v. Useche, 70 M.J. 657, 661 (N-M. Ct. Crim.
App. 2012). Here, the appellant knew the government intended to prove that
he exposed his penis and masturbated in front of Ms. KL. The nature of the
offense as charged and as excepted did not substantially change. The exposure
occurred on the same beach, at the same time, and in the presence of the same
person. The variance reduced, not increased, the seriousness of the offense.
Instead of finding the more serious act of masturbating on a public beach, the
members found mere exposure on a public beach. Finally, the variance had no
effect on the potential punishment for indecent exposure. Accordingly, we find
that the variance created by the finding as excepted compared to the charged
offense, was not material. Moreover, we find no error, much less plain error.
After carefully reviewing the record of trial and considering the evidence in
the light most favorable to the prosecution, we are convinced that a reasonable
fact-finder could have found each of the elements of indecent exposure beyond
a reasonable doubt. Furthermore, after weighing the evidence in the record of
trial and making allowances for not having personally observed Ms. KL, we too
are convinced of the appellant’s guilt beyond a reasonable doubt. Accordingly,
we find the evidence is factually sufficient to sustain a finding of guilty to in-
decent exposure.
2. Offense involving LT KC
The appellant was convicted of abusive sexual contact upon LT KC. To sup-
port this conviction, the government was required to prove beyond a reasonable
doubt that: (1) the appellant committed sexual contact upon LT KC, by touch-
ing, directly or through the clothing, her breast with his hand and by causing
her to touch, directly or through the clothing, his buttocks with her hand; (2)
the appellant did so by causing bodily harm to LT KC, to wit: grabbing her
breast with his hand and grabbing her hand and causing her to touch his but-
tocks; (3) the appellant did so with the intent to abuse, humiliate, or degrade
LT KC, or to arouse or gratify his sexual desire, MCM, Part IV, ¶ 45.b.(7)(b);
and (4) the appellant did so without the consent of LT KC. Benchbook at ¶ 3-
45-16, note 3.
LT KC is the only witness to testify that the appellant assaulted her. She
testified that after changing out of her uniform and into her costume in a bath-
room stall, she noticed LTJG EA and spoke briefly with the appellant. She then
left to check on another sick female officer in a separate bathroom outside of
the ladies’ room. LT KC then returned to the ladies’ room and noticed LTJG
EA sitting against the far wall and the appellant standing between them. LT
KC testified that the appellant grabbed and squeezed her left breast while tak-
ing her hand and placing it on his buttocks. According to LT KC’s testimony,
13
United States v. Dawkins, No. 201800057
LTJG EA was present for, and should have observed, the sexual contact. LT
KC pulled her hand away, walked around the appellant, and sat on the floor
to attend to LTJG EA. She eventually left the ladies’ room after 20 to 30
minutes and returned to her friends in the main event room. Her demeanor
had changed from upbeat to abrupt and very flat. She then demanded that her
friends leave with her. Two days later, LT KC reported the incident first to a
unit victim advocate, then to her friend, Lieutenant Commander (LCDR)
McMahon, and later to a victim’s legal counsel. LCDR McMahon testified that
he received a text from LT KC on the night of the dining-in stating that the
appellant had assaulted her. However, both LCDR McMahon and LT KC de-
leted the text message exchange.
The government called several witnesses in an attempt to establish the
timeline and other events that occurred in the ladies’ room. Most of these wit-
nesses were intoxicated to some degree and their testimony is largely divergent
regarding who was in the ladies’ room at important times during the night. LT
KC testified that she brought her clothes with her to the ladies’ room and
changed before the appellant grabbed her. However, LCDR Strong testified
that she brought LT KC’s bag to the ladies’ room upon LT KC’s request. LCDR
Strong did not see the appellant in the ladies’ room when she brought LT KC’s
clothes to her but she did see LTJG EA on the floor.
LTJG EA testified that when the appellant assisted her to the ladies’ room,
she heard voices and knew others were present. She did not see anyone or re-
member whose voices she heard because she was trying to get to a toilet in
order to vomit. When she came out of the bathroom stall, after vomiting, she
noticed several individuals present to include LCDR Snider, Commander
(CDR) Waters, and Ms. Cornell. After washing her face, LTJG EA remembered
sitting down on the floor and that LT KC was rubbing her back. LTJG EA tes-
tified that she did not see the appellant assault LT KC.
LCDR Snider testified that she “drank more than [she] would normally
drink”17 and that when she entered the ladies’ room, she heard LTJG EA vom-
iting in one of the bathroom stalls. She then entered the other bathroom stall
to use the toilet. When she came out, she saw LTJG EA washing her face at
the sink and the appellant was standing nearby rubbing her back. LCDR
Snider stated that she then took over rubbing LTJG EA’s back until LTJG EA
rose up and said, “I feel fine now. It’s out.” 18 Other people came into the bath-
room by this time and then CDR Waters came in looking for LCDR Snider. As
LCDR Snider and CDR Waters were leaving the ladies’ room, Ms. Cornell was
17 R. at 626.
18 R. at 608.
14
United States v. Dawkins, No. 201800057
entering. Ms. Cornell testified that she saw LTJG EA on the floor with the
appellant rubbing her back and that LT KC and others were also present. After
a brief conversation with the appellant, Ms. Cornell escorted the appellant out
of the bathroom.
Finally, LT VC testified that she drank “four to five glasses of wine at the
dining-in. She stated that she saw the appellant in the ladies’ room along with
several other people to include LTJG EA, LT KC, LCDR Snider, CDR Waters,
LT Chavez, and others. She then saw the appellant “retract his hand back and
smack the rear of” an unknown female service member. 19 At that point, she
physically grabbed the appellant and yelled at him, “don’t do that,” or “stop”. 20
She described the scene as a “commotion” where everyone was yelling at the
appellant telling him to get out of the ladies’ room. 21
In his brief, the appellant asserts that LT KC was upset not because she
had been assaulted, but because LTJG EA drank too much. At trial, the appel-
lant’s civilian defense counsel also attacked LT KC’s credibility for deleting
texts after she met with a victims’ legal counsel while understanding the im-
portance of preserving evidence. Additionally, the civilian defense counsel ar-
gued that LT KC had a motive to get the appellant in trouble because she was
upset that the appellant was not supporting her requests for time off and not
supporting her efforts to move to the clinic. LT KC was also upset with the
appellant because the appellant and another Lieutenant Commander coun-
selled her for being disrespectful to that Lieutenant Commander, who she con-
sidered sexist.
“When weighing the credibility of a witness, this court, like a fact finder at
trial, examines whether discrepancies in witness testimony resulted from an
innocent mistake, such as a lapse of memory, or a deliberate lie.” Patrick, 78
M.J. at 715-6 (quoting United States v. Berger, No. 201500024, 2016 CCA
LEXIS 322 at *36 (N-M. Ct. Crim. App. 26 May 2016), rev’d on other grounds,
76 M.J. 128 (C.A.A.F. 2017)). LT VC’s description of the scene in the ladies’
room, in which she claims she saw the appellant smack a female service
member’s behind, is not corroborated by a single witness to include LT KC,
LTJG EA, LCDR Snider, and Ms. Cornell. One month after the dining-in, LT
VC told NCIS that she did not see anything occur in the ladies’ room. She then
testified that a friend restored her memory about what happened. 22 Based on
19 R. at 468, 491.
20 R. at 491.
21 R. at 487-8.
22 R. at 469.
15
United States v. Dawkins, No. 201800057
the record, we find LT VC’s testimony to be wholly incredible and give it no
weight. Even if we believed her testimony, it does not convince us of the appel-
lant’s guilt on the specification alleged.
LT KC testified that the appellant grabbed and squeezed her left breast
while taking her hand and placing it on his buttock and that LTJG EA was the
only other person present in the ladies’ room when this happened. However,
the testimony of LCDR Snider, a government witness, and Ms. Cornell, a de-
fense witness, directly contradict LT KC’s testimony that the only other people
present were the appellant and LTJG EA. Their testimony firmly established
that LCDR Snider, CDR Waters, Ms. Cornell, and others were constantly pre-
sent in the ladies’ room from the time LTJG EA and the appellant entered the
bathroom stall inside the ladies’ room until Ms. Cornell escorted the appellant
out of the ladies’ room. Moreover, neither LTJG EA nor any other witness pre-
sent in the ladies’ room testified that they saw the appellant assault LT KC.
We find LT KC’s testimony regarding the alleged assault to be unsupportable
when explored through the crucible of cross-examination, the logical timeline,
and lack of corroboration by other equally credible witnesses.
After reviewing the record of trial considering the evidence in the light most
favorable to the prosecution, we acknowledge that a reasonable fact-finder
could have relied on LT KC’s testimony alone and found beyond a reasonable
doubt that the appellant committed an abusive sexual contact upon her. How-
ever, after weighing the evidence in the record of trial ourselves and making
allowances for not having personally observed the witnesses, we are not con-
vinced that there was a time in this small ladies’ room when the appellant
could have so brazenly assaulted LT KC without being observed by one, if not
several witnesses, and we are not convinced beyond a reasonable doubt of the
appellant’s guilt. Accordingly, we find that the evidence is factually insufficient
to convict the appellant of an abusive sexual contact upon LT KC. We set aside
the conviction for abusive sexual contact upon LT KC and consider reassessing
the sentence below.
C. Member’s Question on Specific Instances of Untruthfulness
The appellant contends that the military judge erred when he refused to
ask a question, submitted by a member of the panel, of LCDR Owens, a defense
witness who testified that Ms. KL was an untruthful person. In accordance
with MILITARY RULE OF EVIDENCE (MIL. R. EVID.) 613, MCM, the member sub-
mitted a question to the court asking if LCDR Owens could give any specific
examples of Ms. KL’s untruthfulness when she was intoxicated. The trial coun-
sel objected and during the ensuing Art. 39(a), UCMJ, session, it was deter-
mined that LCDR Owens believed that Ms. KL was more truthful when drunk.
LCDR Owens also believed that Ms. KL had lied to her about having an affair
with a married Spanish man who had a child. The trial counsel and civilian
16
United States v. Dawkins, No. 201800057
defense counsel agreed that the question should not be asked because it opened
up MIL. R. EVID. 412 issues and tied Ms. KL’s character for untruthfulness to
whether she was intoxicated. The military judge asked if the defense concurred
with the trial counsel that the line of questioning should not be allowed to go
any further and the government’s objection to the question should be sus-
tained. The civilian defense counsel replied, “I do, sir.” 23
Appellant was fully aware of the issues presented by the member’s question
and argued against its use. “[A]s a general proposition of law, ‘no objection’
constitutes an affirmative waiver of the right or admission at issue.” United
States v. Swift, 76 M.J. 210, 217 (C.A.A.F. 2017) (citing United States v. Cam-
pos, 67 M.J. 330, 332-33 (C.A.A.F. 2009)). Accordingly, we find that the appel-
lant waived the issue of whether the member’s question should have been
asked.
In the alternative, the appellant alleges that his defense counsel was inef-
fective for concurring with the trial counsel and preventing the question from
being asked. We will address this claim below where we will address all other
allegations of ineffective assistance of counsel.
D. Ineffective Assistance of Counsel
The Sixth Amendment to the United States Constitution guarantees an ac-
cused the right to effective assistance of counsel. United States v. Gooch, 69
M.J. 353, 361 (C.A.A.F. 2011) (citing United States v. Gilley, 56 M.J. 113, 124
(C.A.A.F. 2001)). We review claims of ineffective assistance of counsel de novo.
United States v. Captain, 75 M.J. 99, 102 (C.A.A.F. 2016). The appellant must
show that his defense counsel’s performance was deficient and that there is a
reasonable probability that the deficient performance prejudiced the appellant
at trial. Strickland v. Washington, 466 U.S. 668, 687 (1984). We afford the trial
defense counsel wide latitude to make tactical choices and grant a “strong pre-
sumption that counsel’s conduct falls within the wide range of reasonable as-
sistance.” Strickland, 466 U.S. at 689. Counsel are presumed competent and
to rebut that presumption, the appellant must show specific errors that were
unreasonable under the prevailing professional norms. United States v. Scott,
24 M.J. 186, 188 (C.M.A. 1987). In order to overcome the presumption of com-
petence, the appellant must convince us that his allegations are true and (1)
counsel’s actions were unreasonable, (2) counsel’s actions fell below the perfor-
mance normally expected of fallible lawyers, and (3) counsel’s performance was
ineffective and there is a reasonable probability that absent the errors, there
would have been a different result. Gooch, 69 M.J. at 362. “[A] court need not
23 R. at 732.
17
United States v. Dawkins, No. 201800057
determine whether counsel’s performance was deficient before examining the
prejudice suffered by the defendant . . . [i]f it is easier to dispose of an ineffec-
tiveness claim on the ground of lack of sufficient prejudice.” Strickland, 466
U.S. at 697.
1. Civilian defense counsel was not ineffective for opposing the member’s
question
The appellant now argues that his trial defense counsel was ineffective be-
cause he did not object to the military judge’s decision disallowing the mem-
ber’s question to LCDR Owens regarding specific instances of Ms. KL’s un-
truthfulness. The appellant adds that his trial defense counsel was alterna-
tively ineffective for not attempting to admit impeachment evidence of bias
under MIL. R. EVID. 608(c), and constitutionally required under MIL. R. EVID.
412, that purported to establish that Ms. KL had an affair with a married
Spanish man who was the father of a child.
Civilian defense counsel did not want the question asked because he knew
LCDR Owens knew of no instances when Ms. KL was untruthful except when
talking about the affair Ms. KL had with a Spanish man. Additionally, LCDR
Owens’s opinion that Ms. KL was less truthful when sober than when drunk
undercut LCDR Owens’s basic opinion that she thought Ms. KL had an un-
truthful character. At trial, the civilian defense counsel raised the MIL. R.
EVID. 412 issue and used it to argue against asking the question. He under-
stood the issue and made a tactical decision that he did not want LCDR Owens
to undercut her own opinion of Ms. KL’s character. Accordingly, we find the
tactical decisions exercised by the civilian defense counsel were not outside the
range of reasonableness.
Moreover, because Ms. KL would not speak with the civilian defense coun-
sel before trial, he had no idea how she would explain her previous affair with
the married Spanish man. Despite the appellant’s assertions, Ms. KL did not
testify that the appellant was “not her type because he was married.” 24 She
stated several times that she did not want to kiss, or have sex with the appel-
lant because, in part, he was married. She also testified that the appellant was
not her type. However, Ms. KL did not connect the two disqualifiers. Thus, the
evidence would not have impeached Ms. KL by contradiction nor would it
somehow expose Ms. KL’s bias towards married men with children. Since there
is no evidence in the record that Ms. KL even had a bias against married men
or married men with children, we will not speculate on how the appellant was
prejudiced by that unknown bias.
24 Appellant’s Brief at 34-35 (emphasis added).
18
United States v. Dawkins, No. 201800057
Given the presumption of competence, the evidence contained in the record,
and the lack of evidence admitted by the appellant to show that his trial de-
fense counsel made significant errors, we do not find the civilian defense coun-
sel’s performance to be deficient. We cannot say “that counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the [ap-
pellant] by the Sixth Amendment. United States v. Dewrell, 55 M.J. 131, 133
(C.A.A.F. 2001).
2. Civilian defense counsel was not ineffective for failing to advise appellant
that he could “pick and choose” his testimony topics.
The appellant claims that his counsel failed to fully advise him of his right
to testify and specifically that he could limit his testimony to only the events
concerning Ms. KL to include addressing the text message exchange between
them. The appellant submitted a declaration regarding the performance of his
defense counsel and what testimony he would have provided had he known he
could limit the topics of examination. Appellant’s declaration alleges that his
trial defense counsel did nothing to prepare him to testify at trial, they did not
conduct any practice direct or cross-examinations, and they did not inform him
that he could choose to testify about some events while invoking his right to
remain silent regarding other events. The appellant states that he would have
testified about the events and circumstance regarding Ms. KL’s allegations but
he would not have testified regarding the dining-in and LT KC’s allegations.
Ms. KL was extensively cross-examined by the civilian defense counsel.
Weaknesses in Ms. KL’s testimony were exposed with respect to her lack of
memory, lack of knowledge of the Rota area, her seemingly willful dodging of
even simple uncontroverted facts and locations, and her general lack of percep-
tion. Additionally, during the defense case, the civilian defense counsel was
able to establish Ms. KL’s character for untruthfulness.
After the defense rested without the appellant testifying, the military judge
briefly discussed that with the appellant.
[Military Judge]: Commander Dawkins, you did not testify. Was
it your personal decision not to testify?
[Appellant]: Yes, sir, it was.25
Appellant claims that, had he testified, he could have provided additional
information to rebut Ms. KL’s testimony. Although the testimony of an accused
can be powerful, it can also be detrimental. The appellant does not assert that
his counsel gave him wrong advice, only that they did not fully advise him
25 R. at 770.
19
United States v. Dawkins, No. 201800057
regarding partial testimony. However, the appellant’s claim is unsupported by
his own acknowledgement at trial to the military judge that he made a “per-
sonal decision not to testify” and the fact that he expressed no interest in tes-
tifying until this appeal. Moreover, taking the stand would have incurred great
risk. He could have been cross-examined and impeached. Had he chosen to
testify about the incident involving Ms. KL, the scope of cross-examination
could have challenged the appellant with evidence that he was exhibiting a
consciousness of guilt by his text message response to Ms. KL’s claim that he
took advantage of her when she was lonely and vulnerable. Finally, even if the
appellant limited his testimony on direct examination to only the events in-
volving Ms. KL, or even just to the text messages with Ms. KL, his testimony
as a whole would not likely have been so narrowly confined to that selected
topic. These are good and reasonable tactical reasons for encouraging an ap-
pellant not to testify.
Civilian defense counsel’s tactical advice would also have been reasonable
given the fact that Ms. KL was a poor witness. See United States v. MacCul-
loch, 40 M.J. 236, 239 (C.M.A. 1994) (citing American Bar Association Stand-
ard 4-5.2(b) (1993)) (acknowledging that defense counsel are responsible for
making strategic and tactical decisions). There is nothing prohibiting counsel
from making a recommendation to their client on whether to testify. Here,
nothing that the appellant would have testified about would have likely over-
whelmed the evidence against him. The testimony the appellant proffers on
appeal would have only partially contradicted Ms. KL’s testimony that she saw
the appellant masturbate on the beach. However, the members found that the
appellant did not masturbate on the beach even though they did find that he
exposed his penis. Additionally, the appellant claims that he would have clar-
ified what the text message evidence with Ms. KL meant. This text message
conversation was largely favorable for the defense and had been marked as a
defense exhibit even though it was not offered into evidence during the defense
case. The appellant now argues that the exchange contains statements that
were misperceived by the members. First, when Ms. KL told the appellant that
he “took advantage of [her] when [she] was vulnerable and lonely” 26 the appel-
lant responded by asking to meet in person to explain his perspective. The ap-
pellant asserts that this response exhibits a consciousness of guilt. Second, the
appellant argues that his message: “I heard you loud and clear” was miscon-
strued by the members to mean that he heard KL say “no” to his sexual ad-
vances. However, the members asked for the text message exchange after they
began deliberations. The appellant would have had to testify a second time to
26 Defense Exhibit B.
20
United States v. Dawkins, No. 201800057
explain the exchange. He would have been subject to further cross-examina-
tion, rebuttal, and possible impeachment adding more risk to that decision.
Under these circumstances, it is possible that the appellant’s testimony would
have been more hurtful than helpful to his case and his civilian defense coun-
sel’s strategic and tactical decision to advise him not to testify would have been
reasonable.
We need not obtain declarations from the appellant’s trial defense counsel
or order a post-trial evidentiary hearing because the appellant does not raise
an error that would result in relief even if it were resolved in his favor. See
United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997). Accordingly, we do not
need to determine exactly what advice the civilian defense provided on the sub-
ject of partial testimony because we are not persuaded that had the appellant
testified as he now proffers, there would have been a different result.
There are no set rules covering the wide spectrum of decisions a trial de-
fense counsel must make in a given case, but to be ineffective, the counsel’s
performance must have resulted in prejudice. Strickland, 466 U.S. at 692. We
find Appellant has also failed to meet his burden to establish prejudice. Cap-
tain, 75 M.J. at 103. Accordingly, we reject the appellant’s claims even assum-
ing the assertions in his declaration were true. Ginn, 47 M.J. at 248. (“[I]f the
facts alleged in the affidavit allege an error that would not result in relief even
if any factual dispute were resolved in appellant’s favor, the claim may be re-
jected on that basis.”). The appellant has not shown there was a reasonable
probability that there would have been a different result even if the perfor-
mance of trial defense counsel fell measurably below the performance ordinar-
ily expected of fallible lawyers. Gooch, 69 M.J. at 362 (C.A.A.F. 2011). We
therefore conclude that the appellant was not denied effective representation
due to the advice, or lack of advice, he received about testifying.
E. Sentence Reassessment
We set aside the appellant’s conviction for the attempted sexual assault of
Ms. KL and abusive sexual contact upon Ms. KL and LT KC. The appellant
was sentenced only to the mandatory minimum required for a conviction of
attempted sexual assault—dismissal. The remaining conviction for indecent
exposure does not require a mandatory minimum sentence. Consequently,
there has been a “[d]ramatic change[ ] in the penalty landscape and exposure.”
United States v. Winckelmann, 73 M.J. 11, 15 (C.A.A.F. 2013). We conclude
that we are unable to reassess the appellant’s sentence because we cannot “de-
termine to [our] satisfaction that, absent any error, the sentence adjudged
would have been of at least a certain severity.” Id.21
United States v. Dawkins, No. 201800057
III. CONCLUSION
The guilty findings to the Specification of Charge I and Specifications 2 and
4 of Charge II, and the sentence are SET ASIDE and the Specification of
Charge I and Specifications 2 and 4 of Charge II are DISMISSED WITH
PREJUDICE. The remaining finding is AFFIRMED. Arts. 59 & 66, UCMJ.
The record is returned to the Judge Advocate General for remand to an appro-
priate convening authority with a sentencing rehearing authorized. Alterna-
tively, if a rehearing on sentence is impractical, the convening authority may
approve a sentence of no punishment.
Judge J. STEPHENS concurs.
CRISFIELD, Chief Judge (dissenting in part):
I dissent solely from the court’s holding in setting-aside the finding of guilty
for abusive sexual contact upon LT KC. After weighing the evidence in the rec-
ord of trial and making allowances for not having personally observed the wit-
nesses, I am convinced of the appellant’s guilt of this offense and can find no
reason to set-aside the members’ verdict.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
22