United States v. Private E1 DEMONE M. WHIGHAM

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
AYRES, YOB, and KRAUSS
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E1 DEMONE M. WHIGHAM
United States Army, Appellant
ARMY 20110181
Headquarters, United States Army Aberdeen Proving Ground
Denise R. Lind, Military Judge
Lieutenant Colonel Joseph M. Masterson, Staff Judge Advocate
For Appellant: Mr. Frank Spinner, Esquire (argued); Captain Jack D. Einhorn, JA;
Mr. Frank Spinner, Esquire (on brief).
For Appellee: Sasha Rutizer, JA (argued); Major Robert A. Rodrigues, JA; Captain
Sasha Rutizer, JA (on brief).
4 June 2013
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OPINION OF THE COURT
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AYRES, Chief Judge:
A general court-martial composed of officer and enlisted members convicted
appellant, contrary to his pleas, of two specifications of violating a general
regulation and two specifications of aggravated sexual assault in violation of
Articles 92 and 120(c), Uniform Code of Military Justice, 10 U.S.C. §§ 892, 920(c)
(2006 & Supp. I 2007), amended by 10 U.S.C. § 920 (Supp. V 2011) [hereinafter
UCMJ]. The panel sentenced appellant to a dishonorable discharge, confinement for
four years, and forfeiture of all pay and allowances. The convening authority
approved the sentence as adjudged.
Appellant’s case is before this court for review under Article 66, UCMJ.
Appellant raises two assignments of error, one alleging the evidence at trial was
legally and factually insufficient to support his conviction, and the second alleging
the military judge abused her discretion in admitting evidence of appellant’s
uncharged misconduct under Military Rules of Evidence [hereinafter Mil. R. Evid.]
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413 and 404(b). After examining the record of trial, considering the parties’ briefs,
and enjoying the benefit of oral argument, we find no merit in these assignments of
error for the reasons set forth below. In particular, we address an issue the parties
discussed in oral argument as to whether appellant waived appellate consideration of
any objection to the admission of portions of the uncharged misconduct on appeal by
entering into a stipulation of fact midway through trial.
BACKGROUND
The charges in this case were tried in the second of two courts-martial that
arose from appellant’s sexual misconduct while serving as a cadre member and non-
commissioned officer (NCO) instructor for Advanced Individual Training (AIT)
students at Aberdeen Proving Ground. In this position, appellant had authority over
trainees in A Company, 143d Ordnance Battalion. Appellant engaged in
inappropriate sexual acts with several soldiers attending AIT. While the misconduct
tried in both courts-martial stems from acts committed contemporaneously, the
charges were tried separately because of delayed reporting by the victims in the
present case.
Appellant’s Prior Court-Martial
Prior to and during January 2008, appellant, who was a staff sergeant,
engaged in inappropriate sexual conduct with several AIT trainees, including Private
(PVT) TB, PVT SH, and PVT SCW. Appellant had sexual intercourse with PVT
SCW, and engaged in sexual contacts of PVT TB and PVT SH over their clothing.
Each of these incidents occurred within the Alpha Company administration building
at Aberdeen Proving Ground, the location of the offices where the cadre conducted
most of its business.
The government charged appellant with violating Article 92, UCMJ, for
disobeying Army Reg. 600-20, Army Command Policy [hereinafter AR 600-20],
para. 4-15(a) (7 June 2006), by having sexual relationships with trainees; Article
107, UCMJ, for making false official statements about the same; and Article 120,
UCMJ, for sexually assaulting PVT TB, PVT SH, and PVT SCW. On 14 March
2009, appellant pleaded guilty at a general court-martial to the Article 92, UCMJ
and Article 107, UCMJ, offenses related to PVT SH and PVT SCW. Pursuant to a
pretrial agreement, the government withdrew the Article 120, UCMJ, charge and its
specifications. The military judge accepted a stipulation between the parties that
indicated the sexual conduct between appellant and PVT SH and PVT SCW was
consensual. After the court accepted appellant’s plea to the Article 92, UCMJ, and
Article 107, UCMJ, violations, 1 the government dismissed all charges and
1
As a result of this stipulation in the first court-martial, the question of
constructive force and the degree of “consent” possible between a soldier in a Basic
or AIT environment and their drill instructor was not at issue.
2
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specifications related to PVT TB. Appellant was found guilty, pursuant to his pleas,
and was sentenced to a dishonorable discharge, confinement for two years, and
reduction to the grade of E-1.
Incident Leading to Second Court-Martial
Approximately two months after the initial court-martial, the two victims in
the present case, Private (PV2) SMH and PV2 EDP, reported additional allegations
of sexual assault by appellant. Private SMH and PV2 EDP were female trainees who
had also been members of A Company, 143rd Ordnance Battalion during the
December 2007 time period. They reported appellant had sexually assaulted them
while they served as AIT students under his supervision.
According to these victims’ testimony, in December 2007, while on charge of
quarters duty, appellant discovered PV2 SMH and PV2 EDP in the male living area
after lights out. This violated established policy, which the parties knew could
subject the female trainees to administrative action or punishment under the UCMJ.
Upon discovery of their misconduct, appellant directed the two trainees to wait for
him in the administration building, which was otherwise empty at that time of night.
He later met them there and told them they were in significant trouble and faced
both non-judicial punishment under Article 15, UCMJ, and potentially being held
over to repeat the course. This was upsetting to both trainees, as class was
scheduled to end in a matter of days, to be followed by a period of leave coinciding
with the holiday break. Appellant then pulled PV2 EDP aside and told her if she and
PV2 SMH performed sexual favors, he would not report the misconduct.
Shaken by the prospect of disciplinary action, the two trainees went with
appellant into a classroom. Private EDP described what happened there in her sworn
testimony:
After we ended up in the classroom, I guess he [appellant]
wanted to do me first, I guess, so he pulled up my shirt
and started fondling my breasts, then told me to bend over
the table. I can’t remember who pulled my pants down. I
was bent over the table. I heard him rustling with a
condom wrapper behind me. Then he entered me for 2-3
minutes. Then he pulled out. At that time, I was crying
over the table. I remember him asking me if I was okay.
Then he did [PV2 SMH].
Private SMH described the incident similarly when she testified under oath:
A [PV2 SMH]: He [appellant] said, “You’re next. It’s
your turn,” directed towards me. And I froze—I didn’t
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know what to do. I kinda inched forward—it took a little
while.
Q [Trial Counsel]: What was your demeanor at the time?
Do you recall?
A: I was crying—I started shaking. I was scared. I didn’t
know what was going on. He grabbed my wrist and kinda
pulled me over.
Q: What happened after he pulled you over?
A: He faced me towards the wall and pushed my pajama
pants and my underwear to the floor.
Q: What wall did he place you against?
A: The wall with the white board.
Q: When he placed you against that wall, what happened?
A: He pushed my torso down on the desk, and proceeded
to penetrate me.
Q: Before the accused penetrated you, did you say
anything to him?
A: I told him I didn’t want to do it anymore, I said, “I
don’t wanna do this.” I said, “I don’t wanna do it.” He
didn’t say anything; he just did it anyway.
Once appellant had finished these assaults, the trainees left and made a pact
with each other not to report what had happened to them. According to their
testimony, their rationale was to avoid being held over the holidays pending an
investigation, coupled with a fear that even if they reported the assault, the
command would not believe them.
In January 2008, PV2 SMH returned to Aberdeen Proving Grounds and
learned appellant was under investigation for other sexual misconduct. During a
telephone conversation with PV2 EDP, she told her about this investigation. Neither
reported the sexual assault at that time. Eventually, in February of 2009, during a
unit Soldier Readiness Processing (SRP) event for her reserve unit, PV2 EDP was
asked the question of whether she had ever been sexually assaulted. She responded
to the individual conducting the medical screening questionnaire at the SRP that she
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had. After the screener told her the difference between a restricted and unrestricted
report, PV2 EDP elected to make a restricted report. 2 Three months later, she
contacted a sexual assault response coordinator and changed her report to an
unrestricted report. In response to this change, the U.S. Army Criminal
Investigation Command (CID) opened an investigation into her complaint. The
investigation also included contacting PV2 SMH, wherein she provided her
description of the assault. The completed investigation led to the charges in the
present case.
Second Court-Martial
At trial, the government sought to admit evidence of appellant’s commission
of one or more offenses of sexual assault related to charges appellant faced in his
first court-martial under Mil. R. Evid. 413 and alternatively under Mil. R. Evid.
404(b). Specifically, the government proffered: (1) appellant touched PVT TB’s
breasts through her clothing inside the administration building; (2) appellant rubbed
PVT SH’s groin inside the administration building; and (3) appellant had sexual
intercourse with PVT SCW inside the administration building.
Appellant moved to suppress the evidence, arguing the incidents with PVT SH
and PVT TB and the consensual sex with PVT SCW were not sufficiently similar to
the alleged assault against PV2 EDP or PV2 SMH, and therefore, were not relevant
to show any likelihood that appellant had sexually assaulted the victims in the
current court-martial. Defense counsel also argued that the parties stipulated at the
first court-martial that appellant’s sexual contact of PVT SH and PVT SCW was
consensual in nature. Defense counsel also attacked the strength of proof of the
acts, noting appellant pleaded not guilty to charges regarding PVT TB and those
charges were dismissed with prejudice.
Pursuant to United States v. Wright, 53 M.J. 476 (C.A.A.F. 2000), the military
judge ruled that the evidence relating to PVT TB was admissible under Mil. R. Evid.
413 as propensity evidence for the Article 120, UCMJ, specifications. Conversely,
the military judge denied the government’s motion to introduce Mil. R. Evid. 413
propensity evidence relating to PVT SH and PVT SCW. Specifically, the military
judge concluded that the government could not contradict the stipulation of fact
from appellant’s prior trial that stated appellant’s acts with PVT SH and PVT SCW
were consensual.
2
A restricted report allows a sexual assault victim to disclose confidentially the
details of an assault and receive medical treatment and counseling without triggering
an official investigation. See AR 600-20, Army Command Policy, para. 8-4(c) (18
March 2008) [hereinafter AR 600-20 (2008)]. An unrestricted report will generate
an official investigation. Id. at 8-4(d).
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WHIGHAM — ARMY 20110181
However, the military judge ruled that the uncharged misconduct evidence
offered through the testimony of PVT SH and PVT SCW was admissible under Mil.
R. Evid. 404(b). In her ruling the judge noted:
The uncharged misconduct as testified to by [PVT SH] and
[PVT SCW] makes it more probable that the accused had
the opportunity to abuse his authority as a cadre member
with authority of A company trainees, that he prepared for
and planned to have sexual activity with A company
trainees late at night in the administration building while
he was the sole cadre on duty, and that he intended to
avoid discover [sic] by having such relationships in the
administrative building late at night. The uncharged
misconduct is connected in time, place, and circumstances
with the offenses charged in the specification of Charge II.
The military judge ultimately held the uncharged misconduct relating to PVT
SH and PVT SCW was admissible under Mil. R. Evid. 404(b) to prove appellant had
the opportunity, plan, preparation, and intent to commit the Article 92, UCMJ,
charge and its specifications. The military judge also ruled that the evidence
relating to PVT TB, while admissible under Mil. R. Evid. 413, was not
independently admissible under Mil. R. Evid. 404(b). The judge fashioned and
provided tailored limiting instructions in accordance with her decisions and without
objection from either party.
During trial, PVT TB testified about appellant groping her breasts inside the
administration building. PVT SH and PVT SCW did not ultimately testify. Instead,
the defense elected to enter into a stipulation of fact concerning the evidence to be
introduced under Mil. R. Evid. 404(b) with respect to PVT SH and PVT SCW. The
judge completed the necessary colloquy so as to ascertain appellant’s understanding
and agreement to the nature and effect of the stipulation. The preface to the
stipulation of fact included a statement waiving any objection to admissibility of the
stipulated matters.
LAW AND DISCUSSION
Military Rules of Evidence 404(b) and 413
We review a military judge’s decision to admit or exclude evidence for an
abuse of discretion. United States v. Barnett, 63 M.J. 388, 394 (C.A.A.F. 2006).
“The abuse of discretion standard is a strict one, calling for more than a mere
difference of opinion. The challenged action must be ‘arbitrary, fanciful, clearly
unreasonable,’ or ‘clearly erroneous.’” United States v. Lloyd, 69 M.J. 95, 99
(C.A.A.F. 2010) (citation omitted).
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Mil. R. Evid. 404(b) provides, in part, that evidence of other crimes, wrongs,
or acts, is admissible for the limited purpose of proving motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident. See
generally United States v. Morrison, 52 M.J. 117, 121–22 (C.A.A.F. 1999). Before
admitting evidence under Mil. R. Evid. 404(b), a military judge must make findings
on the following factors:
(1) Does the evidence reasonably support a finding by the
court members that appellant committed prior crimes,
wrongs or acts?
(2) What fact of consequence is made more or less
probable by the evidence?
(3) Is the probative value substantially outweighed by the
risk of unfair prejudice to the accused?
United States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989).
Mil. R. Evid. 413(a) is far less restrictive and states: “In a court-martial in
which the accused is charged with an offense of sexual assault, evidence of the
accused’s commission of one or more offenses of sexual assault is admissible and
may be considered for its bearing on any matter to which it is relevant.” There are
three threshold requirements that must be met before admitting evidence of similar
sexual assaults: (1) the accused must be charged with an offense of sexual assault;
(2) the proffered evidence must be supported by a preponderance of the evidence, of
the accused’s commission of another offense of sexual assault; and (3) the evidence
must be relevant under Mil. R. Evid. 401 and Mil. R. Evid. 402. Wright, 53 M.J. at
482–83.
But there are significant safeguards. When considering whether to admit
evidence of similar crimes in sexual assault cases, the military judge must also
conduct a balancing test under Mil. R. Evid. 403 which provides that “evidence may
be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading members, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence.” The
factors relevant to this balancing include:
(1) Strength of proof of prior act (conviction versus
gossip);
(2) Probative weight of the evidence;
(3) Potential for less prejudicial evidence;
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WHIGHAM — ARMY 20110181
(4) Distraction of the factfinder and time needed for proof
of prior conduct;
(5) Temporal proximity;
(6) Frequency of the acts; and
(7) Presence or lack of intervening circumstances and
relationship between the parties.
United States v. Solomon, 72 M.J. 176, 180 (C.A.A.F. 2013); Barnett, 63 M.J. at
396.
Evidence related to PVT TB
We find the military judge properly admitted testimony of PVT TB
concerning a prior sexual assault against her. The judge issued a detailed written
ruling, in which she applied the proper Mil. R. Evid. 413, 404(b) and 403 standards
in her ruling that evidence related to the prior sexual assault against PVT TB was
admissible under Mil. R. Evid. 413 as propensity evidence concerning the sexual
assault charges in appellant’s second court-martial. We further find the military
judge’s application and balancing of these factors as they relate to evidence
concerning PVT TB was entirely proper and not clearly erroneous.
The ruling correctly noted the strength of proof of the uncharged sexual
assault against PVT TB was high, as was the probative value of this evidence. There
was no error in the military judge’s application of the Wright factors or in
conducting a Mil. R. Evid. 403 balancing and her conclusion that the probative value
of the uncharged sexual assault against PVT TB was not substantially outweighed by
the danger of unfair prejudice to the accused, confusion of the issues, misleading the
members, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.
Appellant’s brief concedes the military judge “cited the correct rules of
evidence . . . and legal standards in making her ruling” and argues only with her
balancing of the factors. He asserts that the judge failed to properly consider
dismissal of the previous charges relative to PVT TB as a fact when conducting the
necessary Mil. R. Evid. 413 analysis. Even though the judge may not have clearly
articulated her consideration of that factor in her written ruling, any such error was
harmless under the circumstances. The record reveals nothing other than the
previous charge was dismissed as a matter of prosecutorial discretion in the course
of negotiating a pretrial agreement. Considering this dismissal along with all other
relevant factors, admission of the underlying misconduct involving PVT TB was
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proper under Mil. R. Evid. 413 and Mil R. Evid. 403. See United States v. Griggs,
51 M.J. 418, 419–20 (C.A.A.F. 1999) (“[R]elevant and probative evidence that is
otherwise admissible under the Rules of Evidence [is not rendered inadmissible]
simply because it relates to alleged criminal conduct for which a defendant has been
acquitted.” (quoting Dowling v. United States, 493 U.S. 342, 348 (1990))). Cf.
Solomon, 72 M.J. at 179–80;
The care with which the military judge analyzed the factors is also evidenced
in her ruling that while Mil. R. Evid. 413 evidence concerning PVT TB was
admissible with respect to the sexual assault charge, it was not admissible under Mil.
R. Evid. 404(b) with respect to the charge of violating a regulation. The military
judge fashioned and gave appropriate limiting instructions to the members consistent
with this ruling.
Evidence related to PVT SH and PVT SCW
When appellant entered into a stipulation of fact to the testimony of PVT SH
and PVT SCW about his prior sexual activity these former AIT students, he waived
any further appellate review of his objection to the admissibility of this evidence and
the military judge’s ruling on this issue. The stipulation of fact in this case contains
a section entitled: “NATURE AND USE OF THIS STIPULATION.” That provision
reads:
IT IS STIPULATED between Trial Counsel and Defense
Counsel, with the express consent of the Accused, that the
following facts are true, accurate, susceptible of proof,
and admissible under the Military Rules of Evidence.
These facts can be considered by the Military Judge, the
court-martial panel, and any appellate authority in
determining the sufficiency of the evidence supporting the
verdict, and they may be considered by the sentencing
authority in determining an appropriate sentence even if
the evidence of the facts are otherwise inadmissible.
Accused and counsel agree to waive any possible
objections under the Military Rules of Evidence, the
United States Constitution and applicable case law, except
those listed in Rule for Court-Martial 705(c)(1)(B), to
matters contained in the stipulation.
Such an unconditional stipulation waives any error associated with the admission of
the evidence and the issue need not be reviewed by this court. See United States v.
Campos, 67 M.J. 330, 332–33 (C.A.A.F. 2009); United States v. Zakaria, 38 M.J.
280, 283–84 (C.M.A. 1993). See also United States v. Garcia-Ruiz, 546 F.3d 7169
WHIGHAM — ARMY 20110181
(5th Cir. 2008). 3 Of great concern to this court is whether appellant knowingly
waived his rights in this case by entering into the stipulation of fact that detailed the
Mil. R. Evid. 404(b) evidence with respect to PVT SH and PVT SCW, and whether
the appellant knew that the broad waiver language noted above would in effect
waive his rights to challenge the admission of that evidence on appeal.
This court finds the waiver in this case to be knowing and voluntary.
Although counsel for both sides have argued the “boiler plate” nature of the
preliminary paragraphs contained in the Stipulation of Fact, this court has found no
precedent suggesting that there is any standard, uniformly accepted “form” for a
stipulation of fact. The Manual for Courts-Martial does not contain one. 4 To the
contrary, each jurisdiction may well have their own particular preferences, and
within those jurisdictions the trial and defense counsel may, at their discretion,
agree or not agree regarding the waiver terms included in such stipulations.
The record establishes appellant intentionally relinquished a known right to
challenge the admissibility of evidence related to his sexual misconduct with PVTs
SH and SCW. See Campos, 67 M.J. at 332. Indicative of appellant’s conscious
waiver is the tactical decision to stipulate as expressed on the record:
As we discussed, the defense has offered to enter into a
stipulation of fact as a less prejudicial way to get the
information the government seeks under [Mil. R. Evid.]
3
A conditional stipulation, preserving a suppression issue, for example, is
permitted, but the defense must, of course, first obtain the government’s agreement
to that condition, and second, expressly preserve their right to appeal the lost motion
as part of the stipulation by declaring on the record that the accused entered into the
stipulation contingent upon the government’s agreement and the trial court’s
recognition that the accused intended to preserve that issue on appeal. See Zakaria,
38 M.J. at 283–84 (holding that accused did not waive error to review admission of a
stipulation of fact where the record indicated that counsel did not consider the
admissibility question as being waived by the stipulation of fact); Garcia-Ruiz 546
F.3d at 718; Rule for Courts-Martial [hereinafter R.C.M.] 811. We decline to adopt
an approach requiring the judge to positively ascertain whether the accused
understands he is surrendering his right to appeal a lost motion under these
circumstances in favor of requiring the defense to announce preservation of that
right on the record. Contra United States v. Livingston, 586 F.3d 819, 822 (10th Cir.
2009).
4
We note that R.C.M. 811, (b) and (c), allows a military judge to decline to accept a
stipulation “in the interests of justice,” and that before accepting a stipulation the
military judge must “be satisfied that the parties consent to its admission.”
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404(b) in front of the members. The government will not
be allowed to contradict the stipulation. If there is further
evidence that the government wants to put in the
stipulation of fact, that’s something you will have to
discuss and agree to. If you can’t agree on a stipulation of
fact, then we’re back to square one.
Rather than require production of and testimony from PVT SH and PVT SCW, the
defense entered into a stipulation of fact describing appellant’s prior sexual
misconduct with them. 5 The right to call live witnesses, for apparent tactical
reasons, was rejected by appellant in favor of the stipulation of fact. That
stipulation came with a price—the waiver of later being able to raise the denial of
the motion to suppress as an appellate issue. 6
Even absent this waiver, we find the military judge properly admitted
evidence pertaining to appellant’s prior sexual activity with PVT SH and PVT SCW
under Mil. R. Evid. 404(b). The judge applied the proper Mil. R. Evid. 404(b)
standard in her ruling, as appellant conceded in his brief. She properly ruled that the
evidence was relevant only as to the second charge, alleging appellant violated a
regulation prohibiting improper sexual relations between cadre and AIT students.
The evidence the government sought to admit through PVT SH and PVT SCW made
it more probable that appellant had the opportunity, plan, and intent to engage in
improper sexual relations with the AIT students involved in the second court-
martial. The judge examined each element of the Reynolds test in detail and applied
them to the facts of this case, ultimately determining that the probative value of the
evidence, as it related to the second charge, outweighed the danger of unfair
5
We note that avenues other than a stipulation of fact with such broad waiver
language were available to appellant, to include demanding production of the
witnesses, or entering into a much more limited stipulation of expected testimony, as
well as the sort of conditional stipulation of fact discussed above.
6
It should further be noted that while the evidence contained in the stipulation was
clearly beneficial to the prosecution, it did not amount to a confessional stipulation.
Had such been the case, the military judge would have been obligated to “make a
further inquiry to assure that the government was not circumventing either the letter
or the spirit of Article 45(a), UCMJ, 10 U.S.C. 845(a).” United States v. Bertelson,
3 M.J. 314, 316 (C.M.A. 1977). If this had been the case, the so-called Bertelson
inquiry would have been required. Id. In this case, appellant’s stipulation of fact,
made for tactical reasons, clearly provided the government with helpful, although
not dispositive, evidence for the trier of fact to consider. It also was clearly
beneficial to appellant as it limited the government to the reading of the written
word rather than the live testimony of what could have been two additional-and
perhaps sympathetic-victims.
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prejudice with respect to the evidence concerning appellant’s actions with PVT SH
and SCW. The judge did not abuse her discretion in any of these rulings.
Given the government’s stipulation in the first court martial that appellant’s
sexual activity with these particular AIT students was essentially consensual, the
judge properly excluded this evidence from being admitted in the second court-
martial under Mil. R. Evid. 413. She thus prohibited its use as propensity evidence
in support of the sexual assault charge. The military judge gave a proper limiting
instruction in this regard.
Legal and Factual Sufficiency
Article 66, UCMJ, provides that a Court of Criminal Appeals “may affirm
only such findings of guilty . . . as it finds correct in law and fact.” In performing
our duty, we must conduct a de novo review of both the legal and factual sufficiency
of appellant’s convictions. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002). The test for legal sufficiency is “whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 319 (1979); United States v. Phillips, 70 M.J. 161, 166 (C.A.A.F.
2011). The resolution of any legal sufficiency questions must be made by drawing
“every reasonable inference from the evidence of record in favor of the
prosecution.” United States v. Blocker, 32 M.J. 281, 284 (C.M.A. 1991). Reviewing
factual sufficiency, on the other hand, “involves a fresh, impartial look at the
evidence, giving no deference to the decision of the trial court on factual sufficiency
beyond the admonition in Article 66(c), UCMJ, to take into account the fact that the
trial court saw and heard the witnesses.” Washington, 57 M.J. at 399. The test for
factual sufficiency is whether, “after weighing the evidence of record and making
allowances for not having personally observed the witnesses,” this court is
“convinced of appellant’s guilt beyond a reasonable doubt.” United States v.
Craion, 64 MJ. 531, 534 (Army Ct. Crim. App. 2006).
The charges of aggravated sexual assault alleged in this case required the
government to prove: (1) that appellant engaged in a sex act with another person;
and (2) that appellant did so by threatening or placing that other person in fear
(other than by threatening or placing that other person in fear that any person would
be subjected to death, grievous bodily harm, or kidnapping). Manual for Courts-
Martial, United States (2008 ed.), pt. IV, ¶ 45.b.(3).
We are convinced beyond a reasonable doubt that appellant sexually assaulted
PV2 SMH and PV2 EDP and engaged in inappropriate sexual relations with them in
violation of a general regulation. Appellant argues that the evidence is factually
insufficient because the two victims were motivated to lie in order to avoid an
impending deployment, their testimony was inconsistent, and he had a valid alibi
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defense. First, the asserted motive for the victims to fabricate their version of
events in order to avoid deployment is inconsistent with the victim’s initial report as
a restricted report, which would by definition not initiate a criminal investigation.
Further, this alleged motive would at best only apply to PV2 EDP as there would be
no apparent benefit for PV2 SMH. Nor do we find any evidence PV2 EDP
coordinated with PV2 SMH. Any alleged collusion between the two would be
unlikely and speculative, especially as the two did not remain in direct contact after
the incident.
Secondly, the minor nature of the inconsistent portions of the statements
noted by appellant are insufficient to raise reasonable doubt. On the contrary, these
particular inconsistencies seem reasonable given the length of time between the
incident and the trial. It is axiomatic in the context of factual sufficiency, that the
evidence need not be free of conflict or that every minor conflict in the evidence be
resolved. United States v. Teeter, 12 M.J. 716, 722 (A.C.M.R. 1981) (citation
omitted), rev’d in part on other grounds, United States v. Teeter¸16 M.J. 68 (C.M.A.
1983). There is no challenge to the consistency of the victims’ recitation about what
happened. Appellant solely offers inconsistencies as to environmental factors, such
as whether the room was quiet or not, whether they passed a fireguard or not, and
similar insignificant details. Finally, evidence of appellant’s alibi defense is far
from conclusive and based on the evidence presented, we find it unconvincing.
A review of the complete record without regard to the Mil. R. Evid. 404(b)
and 413 evidence reveals sufficient evidence, both legally and factually, to convict
appellant of all the charges related to PV2 EDP and PV2 SMH. Having found no
error with regard to the military judge’s ruling concerning the evidence admitted
under Mil. R. Evid. 404(b) and 413, as well as recognizing that appellant waived any
objection to admissibility to the Mil. R. Evid. 404(b) evidence when he stipulated to
its admissibility, we likewise find the evidence in total to be legally and factually
sufficient to support the findings.
CONCLUSION
On consideration of the entire record, the briefs submitted by the parties, oral
argument, and those matters appellant personally raised pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), the findings of guilty on all specifications
and the sentence as approved by the convening authority are AFFIRMED.
Senior Judge YOB and Judge KRAUSS concur.
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WHIGHAM — ARMY 20110181
FOR THE COURT:
FOR THE COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM
Clerk of Court  H. SQUIRES, JR.
Clerk of Court
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