United States v. Murphy ( 2022 )

This opinion is subject to administrative correction before final disposition.
Before
GASTON, HOUTZ, and MYERS
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Connor J. MURPHY
Lance Corporal (E-3), U.S. Marine Corps
Appellant
No. 202000233
Decided: 17 February 2022
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges:
K. Scott Woodard (arraignment)
Keaton H. Harrell (motions, trial)
Sentence adjudged 19 June 2020 by a general court-martial convened
at Marine Corps Base Camp Lejeune, North Carolina, consisting of of-
ficer and enlisted members. Sentence in the Entry of Judgment: reduc-
tion to E-1, confinement for six months, forfeiture of all pay and allow-
ances, and a bad conduct discharge.
For Appellant:
Lieutenant Commander Christopher K. Riedel, JAGC, USN
For Appellee:
Lieutenant R. Blake Royall, JAGC, USN
Lieutenant Gregory A. Rustico, JAGC, USN
Judge HOUTZ delivered the opinion of the Court, in which Senior Judge
GASTON and Judge MYERS joined.
United States v. Murphy, NMCCA No. 202000233
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.
_________________________
HOUTZ, Judge:
Appellant was convicted, contrary to his pleas, of one specification of abu-
sive sexual contact by bodily harm in violation of Article 120, Uniform Code of
Military Justice [UCMJ], 1 for touching the genitalia of his sister-in-law,
Ms. Sierra, 2 without her consent.
In his sole assignment of error, Appellant asserts the evidence is factually
insufficient to support his conviction. After careful consideration of the record
of trial and the pleadings of the parties, we find the evidence factually insuffi-
cient and set aside the findings and sentence.
I. BACKGROUND
The circumstances that led to Appellant’s conviction arise from allegations
by Ms. Sierra, who moved in with Appellant and his wife, Mrs. Mike (Ms. Si-
erra’s identical twin sister), in June 2017. The three of them first resided in an
off-base apartment in Jacksonville, North Carolina, and in September 2017
moved into base housing on Camp Lejeune.
About four months after moving on base, Ms. Sierra and her boyfriend,
Mr. Charlie, went to the Jacksonville Police Department [JPD] and reported
several incidents that Ms. Sierra said occurred while she was living with Ap-
pellant and her sister. A patrol officer from JPD, Officer Romeo, took the initial
report and interviewed Ms. Sierra, who alleged that while living off base Ap-
pellant had on separate occasions smacked her buttocks, touched her thigh,
made her touch his penis, massaged her back, touched her breasts and stom-
ach, and attempted to strangle her in a car. She also alleged that a few weeks
after moving on base, Appellant had lain down between her and her sister, put
1 10 U.S.C. § 920 (2016).
2 All names in this opinion, other than those of Appellant, the judges, and counsel,
are pseudonyms.
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United States v. Murphy, NMCCA No. 202000233
Opinion of the Court
a blanket on her thigh, and “tried to discretely touch my thigh but I got up and
told him if he touched me again I was going to kill him and I left the room.” 3
Eight days later, Ms. Sierra was interviewed again by an investigator from
JPD assigned to investigate the report made to Officer Romeo. During that
interview, Ms. Sierra recounted her allegations against Appellant that oc-
curred while they were living on and off base. Ms. Sierra told the investigator
that during the on-base incident Appellant had lain down between her and her
sister and “grabbed her inner thigh.” 4
A few months later, Ms. Sierra was interviewed by an agent with the Naval
Criminal Investigative Service [NCIS]. During that interview, Ms. Sierra told
the agent that during the on-base incident, Appellant had climbed onto the bed
between the sisters and touched her “vaginal area” on top of her shorts. 5 That
same day, the NCIS agent interviewed Mrs. Mike, who said that “she never
saw anything inappropriate occur” between Appellant and Ms. Sierra and that
Ms. Sierra “lies a lot.” 6
Ultimately, all of the allegations were charged, investigated at a prelimi-
nary hearing under Article 32, UCMJ, and referred to trial by general court-
martial. At trial, Appellant was acquitted of every offense except for the speci-
fication of abusive sexual contact alleging he “touch[ed], directly or through the
clothing, the genitalia of [Ms. Sierra]” without her consent. The prosecution’s
evidence consisted of the testimony of the two sisters, Mr. Charlie, and two
pages from Appellant’s administrative records. The Defense called as a witness
Officer Romeo, the JPD patrol officer who took the initial report from Ms. Si-
erra.
A. Ms. Sierra’s Testimony
Ms. Sierra testified that shortly after she moved in with Appellant and her
sister in June 2017, she became romantically involved with a Marine,
Mr. Charlie, who then deployed from July 2017 until December 2017. She tes-
tified that she told Mr. Charlie about the incidents involving Appellant while
he was deployed. When he returned from deployment, she moved in with him
and together they reported the incidents to JPD. She acknowledged that dur-
ing her initial interview with JPD she needed help remembering details about
3 App. Ex. VII at 16.
4 Id. at 19.
5 Id. at 21.
6 App. Ex. VI at 32.
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Opinion of the Court
the incidents from Mr. Charlie—whom she married three weeks later—and
that she giggled throughout the second interview with JPD.
Regarding the incident for which Appellant was convicted, Ms. Sierra tes-
tified that one afternoon she was lying in bed with her sister, who was eight
months’ pregnant and asleep, and Appellant was playing video games on the
floor. She testified that Appellant stood up, got in the bed between her and her
sister, threw a blanket over Ms. Sierra, and “hit her leg.” 7 She testified that
when he hit her leg, she pushed the blanket off and he threw it back over her.
She testified that she then “felt his hand trying to creep from underneath the
blanket to get to, like, my vagina area.” 8 When asked whether Appellant “ever
[got] to [her] vagina area,” she replied, “Just on top of, like, my clothing.” 9 The
trial counsel then asked, “Now when [Appellant] touched your vagina over your
clothes with your sister sleeping right there beside you, how did that make you
feel?” 10 Ms. Sierra responded, “I was mad. I was really upset about it.” 11 She
testified that at that point she threw off the blanket, hit her hand on a table
which woke up Mrs. Mike, told Mrs. Mike to “control her husband,” and walked
out of the room. 12
B. Mrs. Mike’s Testimony
Mrs. Mike testified that she had lied to NCIS, the Defense team, and the
prosecutors when she said that she was unaware of the alleged incidents and
that Ms. Sierra lied a lot. She explained that she lied because of her relation-
ship with Appellant and because she relied on his financial support for the care
of their child and herself. She testified that she and Appellant had since sepa-
rated and were in the process of getting a divorce.
Regarding the on-base touching incident, Mrs. Mike testified that one af-
ternoon she and Ms. Sierra were lying down when Appellant got into the bed
between them. She testified,
I was, like, just waking up from a nap and I was feeling super
nauseous and [Ms. Sierra] had brought me Sprite and some
7 R. at 263.
8 Id.
9 Id.
10 Id. at 264.
11 Id.
12 Id.
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Opinion of the Court
crackers and we were laying down together. It was like, me,
[Ms. Sierra], [and Appellant,] and I turned and [Appellant] was
rubbing [Ms. Sierra’s] hip area and, like, as soon as [Appellant]
touched her, [Ms. Sierra] was like, f[***] no. You’re not doing
that and hopped up and just walked outside. 13
When asked, “Could you describe how he reached and touched her?” Mrs. Mike
responded, “Like, around her and toward her vagina.” 14
On cross-examination, Mrs. Mike testified that when she entered her
kitchen in July 2017, she observed Ms. Sierra seated on the kitchen counter
with a shirtless Appellant standing between her legs.
C. Mr. Charlie’s Testimony
Mr. Charlie testified that he began dating Mrs. Sierra in June 2017 and
that she texted him about one of the incidents with Appellant in July 2017. He
testified that after he returned from deployment in December 2017, Ms. Sierra
told him about the “last instance” and “then we decided to go report it.” 15
D. Officer Romeo’s Testimony
Officer Romeo, who took the initial report from Ms. Sierra and Mr. Charlie
in January 2018, testified as follows about his observations from the interview:
During the initial verbal portion, Ms. [Sierra] was very confused,
very uncertain of her facts and circumstances. Mr. [Charlie] kept
prompting her, saying, “you told me this, you told me that”
throughout the course of the interview. And she was very, for a
lack of a better term, wish-washy in her details. 16
Officer Romeo then went to speak to his desk sergeant, leaving Ms. Sierra and
Mr. Charlie alone together in the interview room. He testified that when he
returned 10-15 minutes later, Ms. Sierra “seemed very confident of her facts
and circumstances.” 17
13 Id. at 403.
14 Id. at 404.
15 Id. at 358
16 Id. at 478.
17 Id. at 479.
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II. DISCUSSION
A. Standard of Review and the Law
We review claims of factual sufficiency de novo. 18 The “awesome, plenary,
de novo power” of factual sufficiency review requires this Court to weigh all
the admitted evidence and testimony at trial, make “allowances for not having
personally observed the witnesses,” and decide whether it is convinced of the
accused’s guilt beyond a reasonable doubt. 19 While this Court must account for
not seeing the witnesses’ demeanor, it does not mean the Court must abandon
logic and common sense in conducting its review. This Court may inde-
pendently judge the credibility of the witnesses at trial, resolve questions of
fact, and substitute its judgment for that of the military judge or the court-
martial members. 20 In conducting this unique appellate function, we take “a
fresh, impartial look at the evidence,” applying “neither a presumption of in-
nocence nor a presumption of guilt” to “make [our] own independent determi-
nation as to whether the evidence constitutes proof of each required element
beyond a reasonable doubt.” 21
Reasonable doubt “is not a fanciful, speculative, or ingenious doubt or con-
jecture, but an honest, conscientious doubt suggested by the material evidence
or lack of it in the case.” 22 Proof beyond a “[r]easonable doubt, however, does
not mean the evidence must be free from conflict.” 23 “It is a genuine misgiving
caused by insufficiency of proof of guilt. Reasonable doubt is a fair and rational
doubt based upon reason and common sense and arising from the state of the
evidence.” 24
In order to sustain Appellant’s conviction for abusive sexual contact as
charged, the Government must have proven beyond a reasonable doubt that:
(1) Appellant committed sexual contact upon Ms. Sierra by touching, directly
or through the clothing, her genitalia; (2) he did so by causing bodily harm to
18 United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).
19 United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).
20 United States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990).
21 Washington, 57 M.J. at 399.
22 United States v. Rendon, 75 M.J. 908, 911–12 (N-M. Ct. Crim. App. 2016) (quot-
ing military judge’s instruction and finding no error).
23 United States v. Rankin, 63 M.J. 552, 557 (N-M. Ct. Crim. App. 2006).
24 Rendon, 75 M.J. at 911.
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Opinion of the Court
her; and (3) he did so with the intent to abuse, humiliate, or degrade Ms. Sierra
or to arouse or gratify the sexual desire of any person. 25 “The term ‘sexual con-
tact’ means touching, or causing another person to touch, either directly or
through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks
of any person, with an intent to abuse, humiliate or degrade any person; or any
touching, or causing another person to touch, either directly or through the
clothing, any body part of any person, if done with an intent to arouse or gratify
the sexual desire of any person.” 26 “The term ‘bodily harm’ means any offensive
touching of another, however slight, including any nonconsensual sexual act
or nonconsensual sexual contact.” 27
B. Analysis
The manner in which this case was prosecuted invites more questions than
were answered regarding this particular offense, and causes this Court to find
the evidence insufficient to support a conviction. Appellant’s conviction for abu-
sive sexual contact essentially rests on the testimony of Ms. Sierra and Mrs.
Mike, which is conflicting in a number of material areas and also presents sig-
nificant credibility issues. We are therefore not convinced beyond a reasonable
doubt that Appellant committed abusive sexual contact upon Ms. Sierra by
touching, directly or through the clothing, her genitalia.
The Government focused most of its direct examination of Ms. Sierra on
the off-base incidents of which Appellant was acquitted. Her testimony about
the on-base touching incident for which Appellant was convicted was both brief
and ambiguous. She testified that she “felt his hand trying to creep from un-
derneath the blanket to get to, like, [her] vagina area.” 28 When asked whether
Appellant actually “ever [got] to [her] vagina area,” she replied, “Just on top of,
like, my clothing.” 29 It is unclear what Ms. Sierra’s understanding of “vagina
area” is, which was not clarified through further questioning. Such ambiguity
might have been resolved had Ms. Sierra been questioned, for example, about
whether “vagina area” includes or excludes the “groin” area, which our sister
25 Manual for Courts-Martial, United States (2016 ed.) [MCM], pt. IV, para.
45.b.(7)(b) at IV-72.
26 Article 120(g)(2), UCMJ, 10 U.S.C. § 920(g)(2) (2016).
27 Article 120(g)(3), UCMJ, 10 U.S.C. § 920(g)(3) (2016).
28 R. at 263 (emphasis added).
29 Id.
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Opinion of the Court
court has held is materially different from the “genitalia.” 30 Her only other tes-
timony regarding the sexual contact was “I was mad. I was really upset about
it” in response to a suggestive question from the trial counsel asking how she
felt when Appellant touched her vagina over her clothes with her sister sleep-
ing right there. The adoptive way in which this testimony was elicited, coupled
with the lack of critical detail about what the term it uses actually means,
leaves us with doubt as to whether Appellant in fact touched Ms. Sierra’s gen-
italia over her clothing, whether he touched her groin area, or whether he
simply touched her clothing on the way to, or in the vicinity of, her vaginal
area. 31
When we factor in Mrs. Mike’s testimony, we are even more uncertain
about what occurred. We disagree with the Government’s contention that
Mrs. Mike corroborated each essential element of the offense. To the contrary,
her testimony was that Ms. Sierra got up and left after Appellant rubbed Ms.
Sierra’s “hip area.” 32 She never testified that she saw contact with the genital
area, and a fair interpretation of her testimony is that Appellant only touched
Ms. Sierra’s hip over the clothing, not her genitalia. Mrs. Mike’s testimony also
conflicts with Ms. Sierra’s testimony in other material ways, such as that the
incident occurred under a blanket, that Ms. Sierra struck a table in frustration
when she got up from the bed, and that Ms. Sierra told her sister “to control
her husband,” none of which were mentioned in Mrs. Mike’s testimony. While
there may be reasonable explanations for these and other discrepancies, 33 no
30 See United States v. Perez, No. ARMY 20140177, 2016 CCA LEXIS 131, *5 (Army
Ct. Crim. App. Feb. 29, 2016) (unpublished).
31 The Government appears to have shared this uncertainty, as the trial counsel in
his opening statement referred to this incident as an “attempt.” R. at 238 (“Finally,
Mrs. [Sierra] will describe an incident where she and her twin sister where [lying] in
bed together and the accused entered the bedroom, [lay] next to her, and attempted to
reach over her thigh and touch her vagina.”) (emphasis added).
32 R. at 403 (“Connor was rubbing [Ms. Sierra’s] hip area and, like, as soon as Con-
nor touched her, [Ms. Sierra] was like, f[***] no. You’re not doing that and hopped up
and just walked outside.”) (emphasis added). When asked a second time how Appellant
touched Ms. Sierra, Mrs. Mike testified it was “[l]ike, around her and toward her
vagina” before Ms. Sierra “said, ‘f[***] no. You’re not doing that.’ And immediately
hopped up.” R. at 404 (emphasis added).
33 Mrs. Mike also testified about overhearing a purported “confession” that Appel-
lant made during a phone call with Mrs. Mike’s father; however, based on the record
this discussion concerned a separate alleged offense, of which Appellant was acquitted,
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Opinion of the Court
such explanations were offered at trial, and we must review each case only
based on the evidence before us. We find that, in light of the ambiguity already
present in Ms. Sierra’s testimony, Mrs. Mike’s testimony creates reasonable
doubt.
This doubt is magnified when we consider the testimony of Officer Romeo,
to whom Ms. Sierra made no mention of Appellant touching her genitalia, over
the clothes or otherwise. He testified that when he interviewed Ms. Sierra ap-
proximately four months after the incident, Ms. Sierra giggled throughout the
interview, was “wishy-washy,” and “uncertain in her facts.” She appeared to
rely on Mr. Charlie, who did not witness any of the incidents, to help her with
the details. The Court recognizes that victims may experience strong emotions
under the stress of talking with investigators about crimes committed against
them, and that Ms. Sierra’s behavior may not be unusual. However, the man-
ner in which she responded to questions from both trial and defense counsel,
combined with the behavior she displayed to Officer Romeo when providing her
initial statement to JPD, leaves this Court with more questions than were an-
swered at trial. The trial counsel made no attempt either to clarify the testi-
mony or to explain this behavior. Given this context, the evidence presented at
trial leaves us uncertain about what exactly occurred and thus whether the
elements of the charged offense are satisfied. 34
After weighing the evidence in the record of trial and making allowances
for not having personally observed the witnesses, we are not convinced of Ap-
pellant’s guilt beyond a reasonable doubt. We therefore find the evidence fac-
tually insufficient to support his conviction.
III. CONCLUSION
The findings and sentence are SET ASIDE. The charge is DISMISSED
WITH PREJUDICE. All rights, privileges, and property of which Appellant
has been deprived due to the finding and sentence are ordered restored. 35
Senior Judge GASTON and Judge MYERS concur.
that he had caused Ms. Sierra to touch his penis without her consent. See R. at 411,
429.
34 This Court also considered whether the elements for any lesser-included offenses
were proven beyond a reasonable doubt and arrived at the same conclusion based upon
our review of the record.
35 Articles 58b(c) & 75(a), UCMJ.
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Opinion of the Court
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
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