United States v. Ramento ( 2022 )

This opinion is subject to administrative correction before final disposition.
Before
GASTON, HOUTZ, and MYERS
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Aldriche M. RAMENTO
Aviation Boatswain’s Mate (Aircraft Handling) Second Class
(E-5), U.S. Navy
Appellant
No. 202000285
_________________________
Decided: 16 May 2022
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge:
Kimberly J. Kelly
Sentence adjudged 2 October 2020 by a general court-martial convened
at Naval Base Kitsap-Bremerton, Washington, consisting of officer and
enlisted members. Sentence in the Entry of Judgment: reduction to E-1,
confinement for one year and six months, forfeiture of $1,733 pay per
month for 18 months, and a dishonorable discharge.
For Appellant:
Lieutenant Commander Daniel O. Moore, JAGC, USN
For Appellee:
Lieutenant Megan E. Martino, JAGC, USN
United States v. Ramento, NMCCA No. 202000285
Opinion of the Court
_________________________
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under
NMCCA Rule of Appellate Procedure 30.2.
_________________________
PER CURIAM:
A general court-martial composed of officer and enlisted members found
Appellant guilty of six specifications of violating Article 120, Uniform Code of
Military Justice [UCMJ]. 1 On grounds of unreasonable multiplication of
charges, the military judge conditionally dismissed three of the specifications
alleging non-consensual sexual acts and contact [Specifications 2, 4, and 6],
pending appellate review of the other three [Specifications 1, 3, and 5] alleging
Appellant committed sexual acts and contact upon the victim when she was
asleep. Appellant asserts the evidence is legally and factually insufficient to
support his convictions. We find no prejudicial error and affirm.
I. BACKGROUND
In February 2019, several hours away from their duty station and after a
day of hiking, Logistics Specialist Second Class (E-5) [LS2] India, 2 Aviation
Boatswain’s Mate (Handling) Second Class (E-5) [ABH2] Alpha, and Appellant
stayed overnight in a hotel room. The room had two beds which they pushed
together so as to make it less awkward for the three of them to share the beds. 3
After drinking alcohol, playing games, and talking, sometime around midnight
the three went to bed with LS2 India lying between Appellant and ABH2 Al-
pha, who had headphones on his head that remained on him all night. While
in bed, Appellant and LS2 India talked about prior relationships for a while
1 10 U.S.C. § 920.
2 All names in this opinion, other than those of Appellant, the judges, and counsel,
are pseudonyms.
3 The three, along with LS2 India’s wife and another friend, went on this trip to
commemorate Appellant’s impending move across the country. Trips like this were not
uncommon for this group, nor was it uncommon for them to share a bed strictly for the
purpose of sleeping.
2
United States v. Ramento, NMCCA No. 202000285
Opinion of the Court
until LS2 India told Appellant goodnight and went to sleep. LS2 India was in-
toxicated, but remembered the evening, including telling Appellant goodnight.
LS2 India was awakened the next morning by Appellant’s attempts to pull
her sweatpants and underwear up from her ankles and to cover her with the
bed sheet. She then recognized that her pants and underwear had been par-
tially removed and that her sweatshirt was pushed up. Her breasts and nipples
hurt as if someone had been squeezing or sucking them, her vagina felt dry,
the labia area had a stinging feeling, and after going to the bathroom she no-
ticed that it “smell[ed] like rubber.” 4 She later noticed a hickey on the side of
her neck.
LS2 India initially attempted to conceal what had happened from her wife,
but ultimately confided in her. Over the course of several weeks, via telephone
calls and messaging applications, LS2 India and her wife separately confronted
Appellant, eliciting from him that he was “catching feelings” for LS2 India on
the night of the assault and that he tried to “cuddle” her while she was sleep-
ing. He was apologetic and admitted touching her breasts, sucking her nipples,
rubbing her buttocks, and putting his fingers in her vagina. He admitted trying
to put his penis inside her, but “didn’t know if it went in because he said that
when he tried putting it in, he wasn’t hard enough.” 5 He admitted there was a
used condom on the floor the next morning that had “weight from it” when he
tried to kick it under a chair or bed. 6 During a subsequent call recorded with
the assistance of law enforcement, Appellant acknowledged his prior admis-
sions to LS2 India, confirmed that he had touched her while she was sleeping,
apologized repeatedly, and admitted, “I don’t know, maybe I was like—I did
came [sic]—if I ever did” into the condom. 7
II. DISCUSSION
In separate assignments of error, Appellant asserts that the evidence is
legally and factually insufficient to support his three convictions under Article
120, UCMJ. We review legal and factual sufficiency de novo. 8
4 R. at 342.
5 R. at 350
6 R. at 351.
7 Pros. Ex. 5.
8 Article 66(d), UCMJ; United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002).
3
United States v. Ramento, NMCCA No. 202000285
Opinion of the Court
In determining legal sufficiency, we must ask ourselves if, “considering the
evidence in the light most favorable to the prosecution, a reasonable fact-finder
could have found all the essential elements beyond a reasonable doubt.” 9 In
doing so, we “draw every reasonable inference from the evidence of record in
favor of the prosecution.” 10 “[T]he standard for legal sufficiency involves a very
low threshold to sustain a conviction.” 11
In determining factual sufficiency, we must be convinced of an appellant’s
guilt beyond a reasonable doubt after weighing the evidence in the record of
trial and making allowances for not having observed the witnesses. 12 We do
not presume either innocence or guilt, and instead take “a fresh, impartial look
at the evidence” to independently determine whether each element has been
satisfied with proof beyond a reasonable doubt. 13 Proof beyond a “[r]easonable
doubt, however, does not mean the evidence must be free from conflict.” 14
In order to sustain Appellant’s convictions for sexual assault as charged in
Specifications 1 and 3, the Government must have proven beyond a reasonable
doubt: (1) that Appellant penetrated LS2 India’s vulva, however slightly, by
his penis and his finger; and (2) that he did so when he knew or reasonably
should have known that she was asleep. In order to sustain his conviction for
abusive sexual contact as charged in Specification 5, the Government must
have proven beyond a reasonable doubt: (1) that Appellant touched, directly
and through the clothing, the breasts and buttocks of LS2 India; (2) that he did
so when he knew or reasonably should have known that she was asleep; and
(3) that he did so with an intent to arouse or gratify his sexual desires.
Appellant argues that his convictions are legally and factually insufficient
because Appellant and LS2 India conversed about sexual partners while in bed
and she “indicated she was awake and communicating during the alleged sex-
ual assault.” 15 These arguments ignore the evidence presented at trial, which
9 United States v. Turner, 25 M.J. 324, 324-25 (C.M.A. 1987) (citing Jackson v.
Virginia, 443 U.S. 307, 319 (1979)).
10 United States v. Gutierrez, 74 M.J. 61, 65 (C.A.A.F. 2015).
11 United States v. King, 78 M.J. 218, 221 (C.A.A.F. 2019).
12 Turner, 25 M.J. at 325.
13 Washington, 57 M.J. at 399.
14 United States v. Rankin, 63 M.J. 552, 557 (N-M. Ct. Crim. App. 2006).
15 Appellant’s Br. at 2.
4
United States v. Ramento, NMCCA No. 202000285
Opinion of the Court
indicates the sexual acts and contact of which Appellant was convicted oc-
curred sometime after Appellant and LS2 India conversed, after she told Ap-
pellant goodnight, and after she fell asleep.
There is no evidence of touching, consensual or otherwise, between Appel-
lant and LS2 India, who were only friends at the time, prior to LS2 India telling
Appellant goodnight. LS2 India recalled waking in the morning to a darkened
room, observing morning light through the curtains as Appellant was covering
her up with a bed sheet and trying to put her sweatpants on, which were pulled
down and only around one ankle. Her breasts hurt, as did her labia, clitoris
and vulva. When the opportunity presented itself, she went to the bathroom to
investigate, rubbed her vaginal area with her underwear, and found that it
smelled like rubber. Moreover, the other sailor present, ABH2 Alpha, testified
that at some point in the early morning on the day in question, he awoke to see
the silhouette of one person’s body over another in the other bed. He had a
general concern about what he had observed so when he was alone with Ap-
pellant later in the morning, he asked, “what was that last night?” but Appel-
lant walked away. 16
Appellant made numerous admissions via telephone calls and messages
with LS2 India after the group left the hotel, including that while she slept, he
touched her breasts and buttocks, digitally penetrated her, and attempted to
insert his penis into her vagina although he “wasn’t hard enough.” 17 During a
law enforcement oral-wire intercept between Appellant and LS2 India, he ad-
mitted that he “caught feelings” for LS2 India, went in for a cuddle, and
“maybe” digitally penetrated her and “maybe” tried to put his penis in her. 18
He also admitted multiple times to finding a condom on the floor the next
morning that had weight to it which was “maybe” his, “maybe” from his wal-
let. 19 In response to a question from LS2 India regarding how long his fingers
were inside her, he stated, “I have no idea.” 20 Near the end of the conversation,
Appellant broke down crying and apologized repeatedly for what he had done.
When combined with the evidence of vaginal pain felt by LS2 India, her awak-
ening to Appellant attempting to pull up her sweatpants, a condom on the floor
that had weight, ABH2 Alpha’s observation of one person over another, and
16 R. at 494.
17 R. at 350.
18 Pros. Ex. 5
19 R. at 351–52; Pros. Ex. 5.
20 Pros. Ex. 5
5
United States v. Ramento, NMCCA No. 202000285
Opinion of the Court
the smell of rubber in LS2 India’s underwear, these admissions sufficiently
support his convictions for Specifications 1, 3, and 5 of the Charge.
There is also ample evidence that Appellant committed this conduct when
he knew or reasonably should have known LS2 India was asleep. LS2 India’s
testimony convinces this Court that she had no knowledge of Appellant’s ac-
tions that night, and that she was asleep during his assaults. When she awoke,
she recognized that her sweatshirt was raised, and her sweatpants and under-
wear were down around one ankle. Her breasts felt sore, as if they had been
squeezed. When she asked Appellant about this, he admitted that he touched
her breasts and buttocks. 21 When she asked him directly, “did you touch me
while I’m [sic] sleeping?” he answered, “Yes, I’m so sorry.” 22 This evidence is
further supported by Appellant’s statements admitting that he was “catching
feelings” for LS2 India and “went in for a cuddle,” 23 which provides insight into
his intent to arouse and gratify his sexual desires. Appellant’s claim that LS2
India was awake and consenting to the sexual encounter is simply not sup-
ported by the evidence.
Appellant argues that this case is similar to United States v. Gilpin, 24 in
which this Court overturned a sexual assault conviction because the evidence
was insufficient to prove the alleged victim was asleep and otherwise unaware
while being penetrated by Appellant. In the present case, however, both the
circumstantial evidence and Appellant’s admissions clearly demonstrate that
LS2 India was asleep at the time of the assaults. If this Court has any doubt,
it is whether Appellant penetrated LS2 India’s vulva with his penis, but this
doubt is overcome by the fact that there was a condom with weight to it on the
floor the next morning, that Appellant stated that he “came” into it, that
LS2 India smelled the scent of rubber in her underwear, that ABH2 Alpha ob-
served one person over another in the bed in the early morning, and that LS2
India woke up feeling pain in her vaginal area. Appellant’s subsequent claims
that he only attempted to penetrate her but was unable to do so are not per-
suasive, and appear to be an attempt to minimize his actions in an effort to
avert consequences for committing a very serious crime.
Considering the evidence in the light most favorable to the Prosecution, we
find a reasonable fact finder could have found all the essential elements beyond
21 R. at 350–51.
22 Pros. Ex. 5
23 Pros. Ex. 5
24 United States v. Gilpin, No. 201900033, 2019 CCA LEXIS 515 (N-M Ct. Crim.
App. Dec. 30, 2019).
6
United States v. Ramento, NMCCA No. 202000285
Opinion of the Court
a reasonable doubt. After weighing the evidence and making allowances for
not having observed the witnesses and recognizing that the evidence need not
be free from conflict, we, too, are convinced of Appellant’s guilt beyond a rea-
sonable doubt.
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel, we
have determined that the findings and sentence are correct in law and fact and
that no error materially prejudicial to Appellant’s substantial rights oc-
curred. 25
The findings and sentence are AFFIRMED.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
25 Articles 59 & 66, UCMJ.
7