United States v. Specialist JOSHUA E. TERRY

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
KRIMBILL, BROOKHART, and WALKER
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist JOSHUA E. TERRY
United States Army, Appellant
ARMY 20180355
Headquarters, 8th Theater Sustainment Command
Kenneth W. Shahan, Military Judge
Lieutenant Colonel Ryan B. Dowdy, Staff Judge Advocate
For Appellant: Lieutenant Colonel Tiffany D. Pond, JA; Major Angela D. Swilley,
JA; Captain Rachele A. Adkins, JA (on brief).
For Appellee: Lieutenant Colonel Wayne H. Williams, JA; Major Dustin B. Myrie,
JA; Captain John D. Martorana, JA (on brief).
30 May 2020
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SUMMARY DISPOSITION
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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent .
KRIMBILL, Chief Judge:
On appeal before this court, appellant raises two assignments of error. 1 First,
appellant alleges that his sexual assault conviction is factually insufficient. Second,
1
A military judge sitting as a general court-martial convicted appellant, contrary to
his pleas, of two specifications of willfully disobeying a superior commissioned
officer, one specification of sexual assault, and four specifications of assault
consummated by a battery, in violation of Articles 90, 120, and 128, Uniform Code
of Military Justice, 10 U.S.C. §§ 890, 920, and 928 [UCMJ]. The convening
authority approved the adjudged sentence of a dishonorable discharge, confinement
for thirty months, and reduction to the grade of E -1.
TERRY—ARMY 20180355
appellant alleges he is entitled to relief because of the dilatory post -trial processing
of his case. 2 Appellant’s factually sufficiency assignment of error merits brief
discussion, but neither assignment of error merits relief.
BACKGROUND
On 8 July 2017, appellant was assigned to Fort Shafter, Hawaii, and hosted a
party at his house, which some of appellant’s neighbors and co -workers attended.
Specialist (SPC) RS and SPC HH were both assigned to the same company as
appellant, and both attended appellant’s party that evening. When SPC HH arrived,
she asked appellant if she could spend the night there because she planned to
consume alcohol, but did not want to risk driving while intoxicated. Appellant
agreed and told SPC HH she could sleep on the couch downstairs because SPC RS,
who also planned to spend the night at appellant’s house, was going to sleep in the
spare bedroom upstairs. Appellant’s wife, Sergeant (SGT) JT, and their children
also spent the night in the house. On the night of appellant’s party, SPC HH was
involved in a serious relationship, and her “significant other” lived near Joint Base
Lewis-McChord, Washington.
After the partygoers departed appellant’s house, SPC RS went to the upstairs
spare bedroom to sleep, and SPC HH laid down on the downstairs couch to do the
same. At some point, appellant approached SPC HH on the couch, removed the
blanket she used to cover up, and encouraged her to get up and continue drinking
with him. Specialist HH testified she was surprised when appellant removed her
blanket, but agreed to have another drink and went with appellant into the kitchen
where they continued consuming alcohol . While they were drinking, SPC HH sent a
text message to SPC RS that read, “Some ulterior motives, come downstairs.” After
receiving the text message, SPC RS went downstairs to the kitchen, talked to
appellant and SPC HH for a while, and ultimately tried to fall asleep on a chair in
the living room.
Eventually, appellant and SPC HH went upstairs to the guest bedroom.
Specialist HH testified that she did not remember going to the bedroom. According
to SPC HH, her first memory after drinking in the kitchen was lying on her back on
the bed while appellant penetrated her vagina with his penis. Upon realizing what
was happening, SPC HH began “sobbing” and placed her hand over her mouth.
2
We have given full and fair consideration to the matters personally raised by
appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and
find they are without merit.
2
TERRY—ARMY 20180355
At this point, appellant asked SPC HH, “Are you crying?” Appellant then
asked, “You want this, right?” Specialist HH responded “no.” Appellant asked
again, “You want this, right?” Specialist HH again responded “no.” After the
second exchange, appellant eventually stopped penetrating SPC HH, but not
“immediately.”
After appellant stopped, SPC HH went downstairs to wake up SPC RS and
was “visibly upset.” Specialist RS and SPC HH then left appellant’s house and
drove to SPC RS’s house, where SPC RS’s wife attempted to comfort SPC HH.
Specialist HH described herself as “hysterical” and “sobbing pretty uncontrollably”
during the drive to SPC RS’s house.
Before physical training on the morning of 10 July 2017, appellant confronted
SPC HH outside of her barracks room. After initially commenting on the status of
his security clearance, 3 appellant said, “[W]e’re good, right?” Appellant then told
SPC HH “he was sexually abused as a child and didn’t want to make [her] feel lik e .
. .,” before “trail[ing] off” without finishing the sentence. Specialist HH reported
the sexual assault later that day and submitted to a fore nsic sexual assault
examination.
At trial, in addition to SPC HH and SPC RS’s testimony, the government
admitted evidence that male deoxyribonucleic acid (DNA), from which appellant
could not be excluded as a contributor, was discovered on a vaginal swab collected
during SPC HH’s forensic exam. The male DNA could not be “rule[d] in or rule[d]
out [as] semen,” but the forensic biologist who conducted the DNA test opined the
DNA was likely “bodily fluid” instead of another type of “touch-DNA” based on the
elapsed time between the assault and forensic exam. The forensic biologist further
opined that “oral sex is an unlikely explanation of [the] DNA results.”
As part of the defense case-in-chief, trial defense counsel elicited testimony
that SPC HH had a character for untruthfulness, and argued SPC HH had a motive to
fabricate the sexual assault allegation in order to receive an expedited transfer to
Joint Base Lewis-McChord, the duty station of her significant other. The defense
also elicited expert testimony that SPC HH was likely in a n alcohol-induced
“blackout” state for portions of the night.
3
Specialist HH worked in the battalion S -2 section at the time.
3
TERRY—ARMY 20180355
LAW AND DISCUSSION
In order to assess factual sufficiency, this court takes “a fresh, impartial look
at the evidence,” applying “neither a presumption of innocence nor a presumption of
guilt.” United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). We may not
affirm a conviction unless, “after weighing the evidence in the record of trial and
making allowances for not having personally observed the witnesses, ” we are
personally convinced beyond a reasonable doubt of appellant’s guilt. United States
v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).
In this case, after considering the entire record of trial and making the
necessary allowances for not having personally observed the witnesses, we are
convinced of appellant’s guilt beyond a reasonable doubt. Appellant argues that
there is insufficient evidence that he penetrated SPC HH with his penis. We
disagree.
Specialist HH testified that her first memory after being in the kitchen with
appellant was lying on her back on the bed with appellant penetrating her vagina
with his penis. While she stated she never actually saw appellant’ s penis, that fact is
of little consequence in this case. Specialist HH specifically testified that she knew
the difference in feeling between digital and penile penetration, and appellant
penetrated her with his penis. The DNA evidence, while not expressly confirming
the presence of semen, corroborates SPC HH’s testimony that appellant penetrated
her with his penis. The DNA expert testified that because of the elapsed time
between the penetration and the forensic exam, the DNA evidence present in SPC
HH’s vagina was likely DNA from bodily fluid, but not likely caused by oral sex .
Thus, we conclude the source was likely not saliva. Given this evidence, we are
personally convinced beyond a reasonable doubt appellant penetrated SPC HH’s
vulva with his penis.
Appellant also argues the evidence is insufficient to establish a lack of
consent. Again, we disagree. Specialist HH testified that as soon as she realized
appellant was sexually assaulting her, she started crying. Appellant must have also
taken this as a manifestation of lack of consent because he asked if she was crying,
and twice asked if she was ok with the penetration. Despite having these questions,
appellant did not immediately stop penetrating SPC HH. Additionally, SPC RS
corroborated that SPC HH was distraught and crying immediately after the sexual
assault. Furthermore, appellant demonstrated his consciousness of guilt by
confronting SPC HH a few days later to ensure th e two were “good,” and implying
he did not want SPC HH to feel the way he did when he was sexually abused as a
4