United States v. First Lieutenant DAVID BROWN

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
ALDYKIEWICZ, SALUSSOLIA, and WALKER
Appellate Military Judges
UNITED STATES, Appellee
Vv.
First Lieutenant DAVID BROWN
United States Army, Appellant
ARMY 20160139
Headquarters, U.S. Army Combined Arms Center and Fort Leavenworth
J. Harper Cook, Military Judge
Lieutenant Colonel Sean T. McGarry, Staff Judge Advocate
For Appellant: Lieutenant Colonel Tiffany D. Pond, JA; Major Kyle C. Sprague, JA;
Captain James J. Berreth, JA (on brief).
For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Major Dustin B. Myrie, JA; Captain Thomas J. Darmofal, JA (on
brief).
23 December 2019
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
Per Curiam:
Appellant challenges the legal and factual sufficiency of his convictions of
rape, aggravated sexual contact, and abusive sexual contact. We find appellant’s
challenges to the legal and factual sufficiency of his convictions! meritless, with one
exception for which we grant relief in our decretal paragraph. Additionally,
appellant alleged three additional assignments of error in a supplemental brief.
None warrant discussion or relief.
At appellant’s first court-martial a military panel composed of officer
members convicted appellant of one specification of violating of a lawful general
! Appellant also alleges numerous errors in matters submitted pursuant to United
States v. Grostefon 12 M.J. 431 (C.M.A. 1982). We have given full and fair
consideration to these matters and find them to be without merit.
BROWN—ARMY 20160139
regulation, three specifications of rape, one specification each of aggravated sexual
contact, abusive sexual contact, and assault consummated by a battery, and two
specifications of conduct unbecoming an officer and a gentleman in violation of
Articles 92, 120, 128, and 133, Uniform Code of Military Justice, 10 U.S.C. §§ 892,
920, 928, 933 (2012) [UCMJ]. The convening authority approved the adjudged
sentence of a dismissal and confinement for fifteen years.
On 23 February 2018, pursuant to United States v. Hills, 75 M.J. 350
(C.A.A.F. 2016) and United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017), this court
set aside appellant’s convictions of three specifications of rape and one specification
each of aggravated sexual contact and abusive sexual contact, in violation of Article
120, UCMJ. United States v. Brown, ARMY 20160139, 2018 CCA LEXIS 88 (Army
Ct. Crim. App. 23 Feb. 2018) (summ. disp.). This court affirmed the remaining
findings of guilty, set aside appellant’s sentence, and authorized a rehearing.
The government opted to retry appellant for the set-aside convictions. On 22
September 2018, a military panel composed of officer members convicted appellant,
contrary to his pleas, of one specification of rape, one specification of aggravated
sexual contact, and one specification of abusive sexual contact, in violation of
Article 120, UCMJ. The panel sentenced appellant to a dismissal, confinement for
ten years, and forfeiture of all pay and allowances.
LAW AND DISCUSSION
We conclude appellant’s convictions of Specifications 4 (aggravated sexual
contact) and 5 (abusive sexual contact) of Charge I are factually insufficient to the
extent that he committed sexual contact on BL’s breasts, in that there was no
evidence presented at trial that appellant rubbed BL’s breasts, as charged. The
specifications at issue read as follows:
Specification 4: At or near Vilsek, Germany, on or about
26 August 2014, did, commit sexual contacts upon Private
(E-2) B.L., to wit: rubbing her inner thigh, breasts and
vaginal area with his hand, by unlawful force, to wit:
bending her over the bed and holding her down with his
hands with physical strength sufficient to overcome and
restrain the said Private B.L.
Specification 5: At or near Vilsek, Germany, on or about
26 August 2014, did, commit sexual contacts upon Private
(E-2) B.L., to wit: rubbing her inner thigh, breasts and
vaginal area with his hand, as she was walking away from
him, by causing bodily harm to her, to wit: rubbing her
BROWN—ARMY 20160139
inner thigh, breasts and vaginal area with his hand,
without her consent.
This court reviews factual sufficiency de novo. United States v. Washington,
57 M.J. 394, 399 (C.A.A.F. 2002). The test for factual sufficiency is “whether, after
weighing the evidence in the record of trial and making allowances for not having
personally observed the witnesses, [we are] convinced of the [appellant]'s guilt
beyond a reasonable doubt.” United States v. Turner, 25 M.J. 324, 325 (C.M.A.
1987). In conducting this unique appellate review, we take “a fresh, impartial look
at the evidence,” applying “neither a presumption of innocence nor a presumption of
guilt” to “make [our] own independent determination as to whether the evidence
constitutes proof of each required element beyond a reasonable doubt.” Washington,
57 M.J. at 399. Our assessment of factual sufficiency is limited to the evidence
produced at trial. United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993).
“In performing [our] review under Article 66(c), UCMJ, a Court of Criminal
Appeals (CCA) may narrow the scope of an appellant's conviction to that conduct it
deems legally and factually sufficient.” United States v. English,79 M.J. 116, 120
(C.A.A.F. 2019) (citing United States v. Piolunek, 74 M.J. 107, 112 (C.A.A.F.
2015) (upholding the CCA's determination that only nineteen of twenty-two charged
images of child pornography were legally sufficient to support a conviction); United
States v. Rodriguez, 66 M.J. 201, 203 (C.A.A.F. 2008) (upholding the CCA's
decision to strike “on divers occasions” from the specification at issue and affirm
only one instance of the offense)) (additional citations omitted). Though BL
testified to appellant touching her inner and outer thigh and vaginal area, she never
mentioned appellant touching her breasts. When specifically asked if appellant had
touched her anywhere else, she responded, “No, Ma’am.” The parties agree that the
record contains no evidence that appellant rubbed BL’s breasts. After a thorough
review of the record, we agree and accept the government’s concession that we
should disapprove the word “breasts” in appellant’s convictions for Specifications 4
and 5 of Charge I.
We are convinced appellant is guilty of Specifications 4 and 5, excepting the
word “breasts” from both specifications. In light of our modification of these
specifications, we must reassess appellant’s sentence in accordance with our
superior court’s guidance in United States v. Winckelmann, 73 M.J. 11, 15-16
(C.A.A.F. 2013), and United States v. Sales, 22 M.J. 305, 307-08 (C.M.A. 1986). If
we can determine that, “absent the error, the sentence would have been at least of a
certain magnitude,” then we “may cure the error by reassessing the sentence instead
of ordering a sentence rehearing.” United States v. Doss, 57 M.J. 182, 185
(C.A.A.F. 2002) (citing Sales, 22 M.J. at 307). We can easily make such a
determination here.
BROWN—ARMY 20160139
In both modified specifications, appellant was charged with committing
sexual contact upon BL by rubbing her “thigh, breasts and vaginal area.”
Disapproving the word “breasts” does not change the gravamen of appellant’s
offenses against BL. We are confident that even without the word “breasts” in the
specifications, the members still would have imposed at least a dismissal from the
service, confinement for ten years, and total forfeitures.
CONCLUSION
Upon consideration of the entire record, appellant’s findings of guilty are
AFFIRMED, excepting the word “breasts” from Specifications 4 and 5 of Charge I?
Specifications 4 and 5 are otherwise AFFIRMED. Appellant’s sentence is
AFFIRMED.
FOR THE COURT:
JOHN P. TAITT
Chief Deputy Clerk of Court
2 The findings of guilty we previously affirmed are still affirmed.