UNITED STATES v. CODYMILES (2023)

PUBLISHED OPINION OF THE COURT

Appellant was convicted, contrary to his pleas, of one specification of rape and one specification of aggravated sexual contact, in violation of Article 120, Uniform Code of Military Justice [UCMJ], and one specification of assault consummated by a battery, in violation of Article 128, UCMJ,² for raping Ms. Bravo by penetrating her mouth with his penis by using unlawful force, for touching Operations Specialist Third Class [OS3] Miller's breasts and buttocks by using unlawful force, and for assaulting OS3 Miller.³

Appellant asserts four assignments of error (AOEs), which we combine to three AOEs and reorder as follows: (1) the evidence is factually insufficient to support Appellant's convictions for assault consummated by a battery and rape, and both legally and factually insufficient to support Appellant's conviction for aggravated sexual contact; (2) Appellant's conviction for aggravated sexual contact is multiplicious with Appellant's conviction for assault consummated by a battery; and (3) the military judge erred by denying Appellant's motion for a mistrial. We find partial merit in Appellant's first AOE because we find the evidence is not legally sufficient to support a conviction for aggravated sexual contact by force for Charge III, Specification 3, but we also find the evidence legally and factually sufficient to support a conviction for the lesser included offense of abusive sexual contact without consent. We therefore affirm the lesser included offense of abusive sexual contact without consent for Charge III, Specification 3, and reassess and affirm the sentence.

I. BACKGROUND

A. Ms. Bravo was raped by an unknown male, later identified as Appellant

On the evening of 3 August 2019, Ms. Bravo and Ms. Charlie went out drinking in Jacksonville, Florida. Ms. Charlie was moving from Jacksonville to Memphis, Tennessee, early the following morning and was scheduled to depart by bus at 0115 on 4 August 2019. The two friends were celebrating together before Ms. Bravo planned to drop Ms. Charlie off at the bus station.

While walking back to Ms. Bravo's car shortly after midnight, the two women, both of whom were intoxicated, walked past Mr. Robinson, a man Ms. Bravo recognized as someone she had met previously. He was with a group of other individuals that neither of the women recognized, consisting of two couples and a male walking by himself at the back of the group. The male who was walking by himself put his arms around Ms. Bravo and Ms. Charlie and started walking with them. Ms. Charlie freed herself from the man's arm, but Ms. Bravo and the man walked away from her.

The man steered Ms. Bravo away from the crowd and toward the nearby beach. Once at the beach, Ms. Bravo attempted to leave and return to her friend, but the man yanked her back by her shorts. At first he pulled her shorts and underwear down, then grabbed the back of her head and forced her to perform oral sex. The man told her, “I just want to catch my nut. You can go soon.”⁴

Ms. Charlie, confused by the absence of her friend, attempted to call Ms. Bravo's phone multiple times. Finally, Ms. Bravo answered, but the man took the phone from her and ended the call. After the man ejaculated, he allowed Ms. Bravo to leave and she returned to the parking lot where Ms. Charlie was waiting for her.

When she reunited with Ms. Charlie, Ms. Bravo was crying and upset. She immediately told Ms. Charlie that she had been raped. A bystander who observed Ms. Bravo and Ms. Charlie called the police, reporting an alleged sexual assault. Ms. Bravo reported the assault to law enforcement officers in the parking lot and went to the hospital where she was examined by a sexual assault nurse examiner. The nurse obtained DNA swabs from Ms. Bravo's mouth, neck, vagina, and other areas of her body. The DNA swabs were submitted to the Florida Department of Law Enforcement for analysis. However, Ms. Bravo did not know her attacker—not only was she unable to name him, she could not even recognize his face. As a result, Appellant was not immediately identified as Ms. Bravo's attacker and the investigation remained open for several months.

B. OS3 Miller was assaulted by Appellant

In November 2019, OS3 Miller, Seaman [SN] Papa, and Aviation Electrician's Mate Third Class [AE3] Jones were stationed together at Naval Air Station Jacksonville and lived together in an off-base apartment. They worked with Appellant. It was common for the three roommates to host fellow Sailors at their apartment.

OS3 Miller and SN Papa met Appellant at work while they were all assigned to USS Fort McHenry (LSD 43). OS3 Miller was attracted to Appellant when they first met, but he did not reciprocate her interest. Over time, once she realized Appellant was not interested in her, she began dating someone else. She was still in a relationship at the time of the assault. Appellant, OS3 Miller, and SN Papa all spent time together socially, but neither OS3 Miller nor SN Papa ever spent time alone with Appellant prior to the events in question.

On the evening of 13 November 2019, Appellant, Boatswain's Mate Third Class [BM3] Alpha, and another friend visited the apartment. All three female roommates were home at the time. The men, including Appellant, were hanging out in the common area of the apartment drinking cognac and other alcoholic beverages. Eventually, BM3 Alpha and SN Papa went into SN Papa's room to talk.

At this point, Appellant went into OS3 Miller's room and lay on the bed beside OS3 Miller, who had gone to bed sometime earlier. She did not kick him out immediately because she thought he was simply a drunk friend who needed to crash for the night. However, Appellant began touching OS3 Miller on her breasts and buttocks. She repeatedly told him to stop and moved his hands from her body, but each time she moved his hands away, Appellant would again touch her, ignoring OS3 Miller's protests. She tried to distract him by turning on a movie on her phone, but Appellant continued to touch her.

Appellant then put his arm around OS3 Miller's neck and began choking her, saying, “If I can't have you, can't nobody have you.”⁵ OS3 Miller felt like she was going to pass out. Her vision became blurry, she felt confused, she saw stars, and she could not breathe. She fought back and hit Appellant in the stomach, elbowing him in order to get away. Appellant released her and swung her off the mattress.

SN Papa heard OS3 Miller yell, “Bro, get off of me. Bro get off of me.”⁶ OS3 Miller immediately ran into SN Papa's room and yelled, “Get him out of here. Get him out of my room. Get him out of here. Get him out of my house.”⁷ She told SN Papa, “If you don't get him out of here, I'm going to leave.”⁸ When Appellant was asked what was going on, he responded, “Bro, she's tripping.”⁹ After OS3 Miller's outcry, SN Papa alleged that Appellant had assaulted her in a very similar manner the previous night when he was alone in the apartment with her, including choking her and groping her breasts and buttocks.

OS3 Miller left the apartment and went to the ship. She immediately reported the assault to her chain of command, her mother, her boyfriend, and AE3 Jones. During the subsequent investigation, Appellant's DNA was collected and he was thereby identified as the previously unknown assailant of Ms. Bravo.

Appellant was charged with offenses against four different female victims: SN Papa, OS3 Miller, Ms. Bravo, and Ms. Charlie.

C. Allegations against Appellant and Findings of Guilt

1. Allegations regarding Ms. Bravo

Appellant was charged with two specifications of rape, the first for penetrating Ms. Bravo's mouth with his penis by using unlawful force, and the second for penetrating Ms. Bravo's vulva with his penis by using unlawful force on the same night. Appellant was found guilty of the first specification and not guilty of the second.

2. Allegations regarding Ms. Charlie

Appellant was charged with one specification of assault consummated by a battery for unlawfully grabbing and pushing Ms. Charlie. Appellant was found not guilty of the specification involving Ms. Charlie.

3. Allegations regarding SN Papa

Appellant was charged with one specification of aggravated assault by strangulation for choking SN Papa, and one specification of aggravated sexual contact for touching the breasts, buttocks, and vulva of SN Papa by using unlawful force on the same night. Appellant was found not guilty of both specifications.

4. Allegations regarding OS3 Miller

Appellant was charged with one specification of aggravated sexual contact for touching the buttocks and breasts of OS3 Miller by using unlawful force and one specification of aggravated assault by strangulation for choking OS3 Miller. Appellant was found guilty of aggravated sexual contact, not guilty of aggravated assault by choking, but guilty of the lesser included offense of assault consummated by a battery.

Additional facts will be set forth as necessary to resolve Appellant's assignments of error.

II. Discussion

A. Appellant's Convictions for Assault and Rape are Factually Sufficient, but Appellant's Conviction for Aggravated Sexual Contact is Not Legally Sufficient

1. Appellant's Convictions for Assault and Rape are Factually Sufficient

Appellant asserts the evidence is factually insufficient to support any of his convictions because the victims allegedly consented to his behavior.¹⁰ We review such questions de novo.¹¹

In evaluating factual sufficiency, we determine “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.”¹² In conducting this unique appellate function, 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.”¹³ Proof beyond a “[r]easonable doubt, however, does not mean the evidence must be free from conflict.”¹⁴

a. Assault Consummated by a Battery of OS3 Miller

Appellant was found not guilty of aggravated assault by choking, but guilty of the lesser included offense of assault consummated by a battery against OS3 Miller. To convict Appellant of assault consummated by a battery, the Government was required to prove beyond a reasonable doubt that: (1) Appellant did bodily harm to OS3 Miller; and (2) that the bodily harm was done with unlawful force or violence.¹⁵ “Bodily harm” is defined as “any offensive touching of another however slight.”¹⁶ “Unlawful force or violence means that the accused wrongfully caused the contact, in that no legally cognizable reason existed that would excuse or justify the contact.”¹⁷

OS3 Miller testified that Appellant choked her by putting his arm around her neck immediately after groping her. She further testified that she did not consent to Appellant touching her and that she fought back after he started choking her. Finally, she testified to the effects of the choking, which included seeing stars, blurry vision, and difficulty breathing. She testified that as he began choking her, Appellant told her “If I can't have you, can't nobody have you.”¹⁸ The Government called an expert in the field of strangulation, who testified in detail about how strangulation occurs, the types and likelihood of visible injuries a victim may present after being strangled, and other symptoms that may present during strangulation, such as changes in hearing, loss of vision, difficulty breathing, and seeing stars—all depending on how long and how forcefully the choking is applied.

To impeach her credibility, the Defense presented evidence of inconsistencies between OS3 Miller's statements made during the reporting of the assault and her testimony at trial. The Defense also implied that she consented to Appellant's conduct, highlighting her former romantic interest in him. Finally, the Defense sought to discredit her description of the choking by indicating symptoms of choking that were lacking, such as injuries or dizziness.¹⁹

b. Rape of Ms. Bravo

Appellant was found guilty of rape for penetrating Ms. Bravo's mouth with his penis by using unlawful force. To convict Appellant of rape, the Government was required to prove beyond a reasonable doubt that: (1) Appellant committed a sexual act by penetrating Ms. Bravo's mouth with his penis with the intent to gratify his sexual desire; and (2) that he did so by using unlawful force.²⁰ Force means “(A) the use of a weapon; (B) the use of such physical strength as is sufficient to overcome, restrain, or injure a person; or (C) inflicting physical harm sufficient to coerce or compel submission by the victim.²¹ Unlawful force means “an act of force done without legal justification or excuse.”²² We note that the term “unlawful force” required to prove certain allegations under Art. 120, UCMJ, is decidedly different than the term “unlawful force or violence” required to prove an allegation under Art. 128, UCMJ.²³

Ms. Bravo testified that Appellant penetrated her mouth with his penis without her consent. She further testified that she attempted to get away from Appellant, but that he overpowered her efforts to escape, held her to prevent her from getting away, and forced her to perform oral sex. Despite not knowing Appellant's identity, Ms. Bravo immediately reported the assault and went to the hospital. Appellant's DNA was recovered from his semen in Ms. Bravo's mouth and on her neck, confirming oral penetration. In addition to Appellant's DNA, Ms. Bravo's testimony was corroborated in large part by the testimony of her friend, Ms. Charlie, and reports made to Jacksonville Beach Police officers and the Sexual Assault Nurse Examiner who treated Ms. Bravo shortly after the assault. Finally, the Government presented the 911 call made to police to report Ms. Bravo's assault, and a video clip showing when she and Appellant initially met on the sidewalk.

The Defense sought to discredit Ms. Bravo and Ms. Charlie by impeaching their testimony by highlighting inconsistencies between their testimony in court and the statements they made to law enforcement. Additionally, the Defense attempted to show that Ms. Bravo consented to Appellant's sexual act.

c. Conclusions

After weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, we are convinced of Appellant's guilt beyond a reasonable doubt and find that the evidence is factually sufficient to support Appellant's convictions for assault consummated by a battery and rape.²⁴

2. Appellant's Conviction for Aggravated Sexual Contact is Not Legally Sufficient

Appellant asserts that the finding of guilt for aggravated sexual contact of OS3 Miller is legally insufficient because the groping was not “unlawful force” and the alleged unlawful force—choking—occurred only after the sexual contact. We review such questions de novo.²⁵

To determine legal sufficiency, we ask whether, “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.”²⁶ In conducting this analysis, we must “draw every reasonable inference from the evidence of record in favor of the prosecution.”²⁷

Appellant was found guilty of aggravated sexual contact for touching OS3 Miller's buttocks and breasts by using unlawful force. To convict Appellant of aggravated sexual contact, the Government was required to prove beyond a reasonable doubt that: (1) Appellant committed sexual contact upon OS3 Miller by touching her breasts and buttocks; and (2) that he did so by using unlawful force. The UCMJ defines force as: “(A) the use of a weapon; (B) the use of such physical strength as is sufficient to overcome, restrain, or injure a person; or (C) inflicting physical harm sufficient to coerce or compel submission by the victim.”²⁸ Additionally, the term “unlawful force” means “an act of force done without legal justification or excuse.”²⁹

OS3 Miller testified that Appellant entered her room, lay down in bed next to her, and, when she believed he was falling asleep, “he just started touching [me].”³⁰ He groped her breasts and buttocks without her consent. She explained that to her, “groping” meant “grabbing on me;” his touch was not gentle, but “sloppy, like coarsely.”³¹ She further testified that she told him “Stop. No. Stop” while moving his hands off of her body, but he ignored her. He repeatedly groped her breasts and buttocks, and she repeatedly moved his hands away.³² She then attempted to distract him by putting a movie on her phone, but he again continued touching her. At this point, Appellant put his arm around OS3 Miller's neck and choked her.

At trial, the Government appears to have conflated these two events. In his closing argument on findings, trial counsel argued that Appellant “reaches around, he grabs her chest. Once again [OS3 Miller] described it: not gentle, not polite, but grabbing. He touches her butt, rubs it. She says no, and she takes his hand—as she described—she takes his hand and flings it off of her time and time again, and he keeps on going back, forceful every time.”³³ However, in the demonstrative aid used during his closing argument, trial counsel's slide describing OS3's Miller's aggravated sexual contact lists the following bullet points specifically to address the element of unlawful force:

“- Force done without legal justification or excuse

- Strangled Her

- Threw, Tossed, pushed = she ended up on the ground

- Removing his hand

- She described the forceful grabbing of her breast.”34

On appeal both Appellant and the Government draw a critical line with respect to this offense: Appellant's act of choking OS3 Miller, for which he was found guilty of assault consummated by a battery, was not alleged as the force used during the alleged aggravated sexual contact. We agree. There is also no evidence in the record that Appellant continued to grope OS3 Miller's breasts or buttocks either while choking her or afterwards. Thus, the Government was required to prove that Appellant used unlawful force separate from the choking to accomplish the sexual contact.

Absent the act of choking, under the unique facts of this case, we find insufficient evidence in the record of Appellant's application of physical strength to overcome, restrain, or injure OS3 Miller to satisfy the element of “unlawful force” required by the statute. To meet this standard, the Government needed to prove that Appellant had used a weapon, applied such physical strength sufficient to overcome, restrain, or injure, or inflicted physical harm sufficient to coerce or compel submission. Since the Government presented no evidence that Appellant used a weapon or that he inflicted physical harm sufficient to compel OS3 Miller's submission, it relied completely on the application of physical strength prong of this element.

To prove this element, it was not necessary for the Government to prove that OS3 Miller offered an specific amount of resistance for Appellant's actions to constitute unlawful force. However, the Government had to show that Appellant's actions constituted “the use of such physical strength as is sufficient to overcome, restrain, or injure” her.³⁵ The record shows that OS3 Miller moved Appellant's hands off her, but Appellant ignored her verbal protests and repeatedly touched her again after she moved his hands off of her. Beyond Appellant's repeated touching of OS3 Miller's breasts and buttocks, and her subsequent moving of his hands off her body, the Government presented no evidence that Appellant restrained or injured her in his efforts to touch her breasts and buttocks.

Similarly, the Government made no showing that Appellant overcame OS3 Miller's resistance. Indeed, the record appears to tell the opposite story. OS3 Miller clearly testified that she was able to move Appellant's hands. Although Appellant continued to touch her after she moved his hands from her, she was also able to manipulate her phone and to attempt to distract Appellant by showing a movie. Rather than being the use of force sufficient to overcome her resistance, OS3 Miller described the event by saying “Like, I'm not thinking, like this is something bad—something—a crime is happening. That's not what I was thinking. I was just thinking, wow, he's drunk. So, like, that's all I know is that he's drunk and I want him to stop.”³⁶

The Government's evidence about the nature of Appellant's use of force was confusing. OS3 Miller testified that Appellant's touching was persistent, “sloppy,” and “coarse[ ].” But OS3 Miller also clearly and repeatedly testified that every time he groped her, she “moved” his hands off of her body with her own hands. The Government failed to prove that Appellant actually used sufficient strength to overcome the resistance offered by OS3 Miller.

We acknowledge significant differences between the offenses of aggravated sexual contact and abusive sexual contact without consent. Although the model specifications for these offenses are nearly identical, one critical distinction is that the element of force required to prove aggravated sexual contact carries considerable weight, to the degree that the President set the maximum punishment for the former offense at confinement for 20 years, and the maximum punishment for the latter offense at seven years.³⁷

Under the unique facts of this case and given how the Government presented its case, we find that the evidence is not legally sufficient to show unlawful force. The Government provided ample evidence of sexual contact (the first element) and clear evidence of OS3 Miller's lack of consent to the contact (addressing the unlawful portion of the second element), but trial counsel never presented any evidence of the quality or amount of strength Appellant used in making sexual contact with OS3 Miller (the force element). Additionally, although the Government did present evidence that Appellant continued groping OS3 Miller after she told him to stop and moved his hands off her body, we cannot reach the conclusion from the record that Appellant's repeated, unwanted touching rose the level of force required by the statue—strength sufficient to overcome, restrain, or injure.

This finding is comparable with our prior decisions on the issue of unlawful force. In United States v. Parker, which involved a rape allegation, we found that the Government failed to prove the accused used unlawful force where the force used to commit the sexual act was limited to rolling the victim over onto his back and exposing his penis despite the victim testifying that he attempted to resist but was unable to do anything due to his state of intoxication.³⁸ We explained,

While we are mindful of [the victim's] extreme intoxication and his testimony that he was limited in his ability to resist due to that intoxication, a greater degree of force is required. At the least there necessitates some demonstration that the force used was objectively capable of overcoming [the victim's] resistance. Here there was none. The appellant rolled [the victim] onto his back and placed [the victim's] penis in his mouth without confrontation and with minimum effort. While clearly sufficient to establish sexual assault, the statute requires more for a conviction of rape.39

Similarly, in United States v. Thomas, we found that the element of unlawful force was not met where the record showed that the accused committed a sexual act upon the victim while she was intoxicated and asleep because “simply being on top of the other person during a sexual act, without anything more, is not enough to prove beyond a reasonable doubt the ‘use of such physical strength or violence as is sufficient to overcome, restrain, or injure.’ ”⁴⁰

On the other hand, in United States v. Evans, we found the Government proved unlawful force where the victim testified that she tried to push the accused off of her while he was penetrating her, but because he was holding her down, she was unsuccessful.⁴¹ Similarly, in United States v. Salas, we found that the Government presented sufficient evidence of unlawful force where the accused accomplished the sexual act by holding the victim down on the bed by pressing his forearm between her shoulder blades and forcing her face into the mattress by pressing on the back of her neck with his hand.⁴² In United States v. Ramirez, we found unlawful force where the victim testified that she attempted to push the accused off of her but was unable to because of his size, that the accused grabbed and moved her into several sexual positions despite her actively struggling, and that when she did escape him and attempted to turn away from him, he held her and re-penetrated her.⁴³

With respect to the element of force, we find the facts of this case closer to those of Thomas and Parker, rather than Evans, Salas, and Ramirez. Evaluating the specific facts of this case, we therefore find that the evidence supporting Appellant's conviction for aggravated sexual contact is not legally sufficient.⁴⁴

3. Appellant is Guilty of the Lesser Included Offense of Abusive Sexual Contact

a. Abusive Sexual Contact is a Lesser Included Offense of Aggravated Sexual Contact in this case

Having found that Appellant's conviction for aggravated sexual contact is not legally sufficient, we now examine whether Appellant is guilty of abusive sexual contact as a lesser included offense of aggravated sexual contact. Upon setting aside the finding of a specification, this Court may affirm any lesser included offense.⁴⁵ “Whether an offense is a lesser included offense is a question of law we review de novo.”⁴⁶

We may “affirm an appropriate lesser included offense under that originally charged if we are satisfied that the evidence of record establishes each element of that lesser included offense by legal and competent evidence beyond a reasonable doubt.”⁴⁷ This is true even where the members were not instructed on the lesser included offense.⁴⁸

“To prepare a defense, the accused must have notice of what the government is required to prove for a finding of guilty.”⁴⁹ “The ‘elements test’ determines whether an offense is ‘necessarily included in the offense charged under Article 79, UCMJ.’ ”⁵⁰ The elements test can be applied in two ways: (1) comparing statutory definitions of the two offenses to determine whether the elements of the lesser offense are necessarily included in the charged offense; or (2) examining the specification of the charged offense to determine whether it was “drafted in such a manner that it alleges facts that necessarily satisfy all the elements of each offense.”⁵¹ This test “does not require that the ‘offenses at issue employ identical statutory language.’ ”⁵² “If the elements test is satisfied in either way, the accused will have the notice necessary to prepare a defense” and may be found guilty of the lesser included offense.⁵³

We start by examining the statutory definitions to determine whether the elements of abusive sexual contact are necessarily included in the charged offense of aggravated sexual contact. As explained above, to prove the offense of aggravated sexual contact, the Government had to prove that (1) Appellant committed sexual contact upon OS3 Miller by touching her breasts and buttocks; and (2) that he did so by using unlawful force. “Force” means “(A) the use of a weapon; (B) the use of such physical strength as is sufficient to overcome, restrain, or injure a person; or (C) inflicting physical harm sufficient to coerce or compel submission by the victim.”⁵⁴ Additionally, the term “unlawful force” means “an act of force done without legal justification or excuse.”⁵⁵

The offense of abusive sexual contact without consent is very similar to the offense of aggravated sexual contact. To prove abusive sexual contact without consent, the Government must prove that (1) “that the accused committed sexual contact upon another person, and (2), that the accused did so without the consent of the other person.”⁵⁶ For us to find Appellant guilty of abusive sexual contact, the charge of aggravated sexual contact must necessarily include proof not only that Appellant committed sexual contact upon OS3 Miller by touching her breasts and buttocks, but that he did so without her consent.

We conclude that the elements of abusive sexual contact without consent are necessarily included in the charged offense of aggravated sexual contact by unlawful force in this case. The sexual contact element in each charge is the same. The key difference between the greater offense and the lesser included offense is that the former requires the Government to prove that the sexual contact occurred with unlawful force while the latter only requires the Government to prove that the contact occurred without consent. In this case, by charging unlawful force, the Government provided notice to Appellant that consent was at issue because he could defend against the charge by showing that the sexual contact was consensual or that he had a reasonable mistake of fact as to consent.⁵⁷ In other words, had the contact been consensual, the Government would not have been able to prove unlawful force was used to accomplish the sexual contact. Our analysis of the elements of aggravated sexual contact therefore leads us to conclude that Appellant was on notice that consent was at issue in this case.

Similarly, our review of the record leads us to find that the Defense was fully seized of this issue, alleging OS3 Miller's consent as the centerpiece of its strategy. Notably, the military judge instructed the members that consent was at issue in this case in regard to the allegation of aggravated sexual contact. He instructed the members:

The evidence has also raised the issue of whether SN [Papa] and OS3 [Miller] consented to the sexual conduct listed in Specifications 1 and 2 of Charge II. All of the evidence concerning consent to the sexual conduct is relevant and must be considered in determining whether the government has proven that the sexual conduct was done by unlawful force. Stated another way, evidence the alleged victim consented to the sexual conduct, either alone or in conjunction with the other evidence in this case, may cause you to have reasonable doubt as to whether the government has proven the sexual conduct was done by unlawful force.58

Additionally, the military judge instructed the members regarding the definition of “consent” and the issue of mistake of fact as to consent.

In this case, we find that abusive sexual contact without consent is a lesser included offense of aggravated sexual contact by unlawful force. Fully convinced that Appellant was on notice to defend against the elements of abusive sexual contact without consent, we now examine whether the evidence presented was legally and factually sufficient to find Appellant guilty of the lesser included offense.

b. Appellant is Guilty of Abusive Sexual Contact

To begin, we find that the evidence was legally sufficient to support Appellant's conviction for abusive sexual contact without consent. OS3 Miller testified that Appellant groped her breasts and buttocks without her consent, that she repeatedly told him to stop, that she moved his hands off of her only to have him grope her again and again. Both elements of the offense are met with clear evidence. After weighing the evidence in the record of trial, and making every reasonable inference in favor of the prosecution, we are satisfied a reasonable fact-finder could have found all of the essential elements of the lesser included offense of abusive sexual contact without consent beyond a reasonable doubt.

Next, we turn to the question of factual sufficiency. When Appellant became frustrated by OS3 Miller's resistance, he assaulted her by choking her. OS3 Miller immediately reported the sexual contact and assault to her roommates and her chain of command as she fled her room and left the apartment. The Government also presented considerable corroborating evidence for this offense. OS3 Miller's roommates, SN Papa and AE3 Jones, testified about OS3 Miller's immediate reactions to and statements about Appellant's assault. Additionally, OS3 Miller's leading chief petty officer, Chief Lima, testified about being called by OS3 Miller shortly after the assault, relating her demeanor and description of the assault.

The Defense primarily attacked OS3 Miller's credibility by highlighting inconsistencies in her statements. Additionally, the Defense attempted to show that OS3 Miller consented to Appellant's sexual acts, highlighting that she had expressed attraction to him when he first joined the ship and that she flirted with him on several occasions. Finally, the Defense argued that OS3 Miller's reporting of Appellant's groping was to protect her already troubled relationship with her boyfriend.

After weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, we are convinced of Appellant's guilt beyond a reasonable doubt and find that the evidence is factually sufficient to support Appellant's conviction for the lesser included offense of abusive sexual contact without consent.

B. Appellant's Convictions for Abusive Sexual Contact and Assault Consummated by a Battery are not Multiplicious

Appellant argues that his convictions for aggravated sexual contact (hereby affirmed as the lesser included offense of abusive sexual contact without consent) and assault consummated by a battery are multiplicious because the force used (choking OS3 by placing his arm around her neck) is the same in each of the specifications. According to Appellant, because the force used to constitute aggravated sexual contact is the same act that constituted the evidence of assault consummated by a battery his convictions for both offenses is multiplicious.

We review claims of multiplicity for plain error.⁵⁹ “For an appellant to prevail under plain error review, there must be an error, that was clear or obvious, and which prejudiced a substantial right of the accused.”⁶⁰ When determining whether two charges are multiplicious, we first determine whether the charges are based on separate acts.⁶¹ “If so, the charges are not multiplicious because separate acts may be charged and punished separately.”⁶²

In this case, Appellant's conviction for assault consummated by a battery is based on the evidence that he choked OS3 Miller by placing his arm around her neck, not by touching her breasts and buttocks. When instructing the members regarding the charge of aggravated assault, the military judge stated that they could find Appellant guilty of the lesser included offense of assault consummated by a battery if they found “(1) That on or about 13 November 2019 at or near Jacksonville, FL, [Appellant] did bodily harm to OS3 [Miller], by strangling her around the neck with his arm; (2) That the bodily harm was done unlawfully; and (3) That the bodily harm was done with force or violence.”⁶³ Having received this instruction in the context of this evidence, the members found Appellant guilty of assault consummated by a battery. Thus, we are confident that Appellant's conviction of assault consummated by a battery was his choking of OS3 Miller by placing his arm around her neck.

Separately, we have found that the evidence supports Appellant's conviction for abusive sexual contact based on Appellant's touching of OS3 Miller's breasts and buttocks without her consent. As explained, supra, the unlawful force alleged to commit the offense of aggravated sexual contact was not Appellant's choking of OS3 Miller, but rather his touching of her breasts and buttocks while she moved his hands off of her body and told him “no” and “stop.”

We find that Appellant's convictions for assault consummated by a battery and abusive sexual contact without consent are not based on the same act and are therefore not multiplicious.⁶⁴ As such, Appellant has failed to establish any error that is plain or obvious, and his claim lacks merit.⁶⁵

C. The Military Judge did not Err by Denying Appellant's Motion for Mistrial

Appellant claims that the military judge erred by not granting his motion for a mistrial after trial counsel allegedly committed prosecutorial misconduct by violating the court's bifurcation order.

“The military judge may, as a matter of discretion, declare a mistrial when such action is manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast doubt upon the fairness of the proceedings.”⁶⁶ We will not reverse a military judge's determination on a motion for mistrial absent clear evidence of an abuse of discretion.⁶⁷ The abuse of discretion standard recognizes that a military judge “has a range of choices and will not be reversed so long as the decision remains within that range.”⁶⁸ However, a military judge abuses his discretion “when his findings of fact are clearly erroneous, the court's decision is influenced by an erroneous view of the law, or the military judge's decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law.”⁶⁹

Before trial, Appellant filed a motion asking the court to sever the charges concerning Ms. Bravo and Ms. Charlie from the charges concerning OS3 Miller and SN Papa. The military judge denied the motion, but instructed trial counsel that the “presentation of the evidence” be “logically separated so that we don't have witnesses that support [the various charges] mixed up throughout trial.”⁷⁰

Throughout the court-martial, the Government followed the military judge's order. From its opening statement and through the 13 witnesses over three days, the Government deliberately presented a complex case involving four alleged victims with seven different referred specifications alleging offenses under Articles 120 and 128, UCMJ. The record is clear that the Government sought to emphasize each specific set of facts and evidence for each specification and victim. Trial counsel even sought clarification from the military judge on multiple occasions to ensure that the Government's presentation of evidence would not contradict the military judge's order.⁷¹

Appellant argues that during closing argument, trial counsel crossed that line. When discussing Appellant's response when OS3 Miller ran from her room after he groped and choked her, trial counsel argued, “What's [Appellant's] response as he sits at the table smoking a Black & Mild? ‘Psst, she's tripping.’ Remember that. Remember that. ‘She's tripping.’ Remember that. Remember that.”⁷² Later, while discussing the assault of Ms. Bravo, trial counsel argued, “Members, when her friend keeps on calling her, when Ms. [Charlie] keeps on calling Ms. [Bravo], Seaman Codymiles responds, ‘She's tripping. She's tripping.’ She says, ‘I need to go.’ His response to that, ‘I need to catch my nut. I want you because I've got you down here.’ ”⁷³

Defense counsel did not immediately object. Instead, defense counsel waited until after trial counsel concluded his argument and lodged an objection outside the hearing of the members. Defense counsel argued that trial counsel had violated the military judge's spillover instruction and impermissibly linked the offenses. He requested a mistrial, or in the alternative, that the military judge deny trial counsel from giving a rebuttal argument after the Defense closing argument.

The military judge denied the motion for a mistrial. The military judge specifically found that trial counsel's argument was not “a direct defiance or disobedience or disregard for [the] court order.”⁷⁴ He further found “that the comments about ‘she's tripping’ are part of the facts of the case. There's evidence supporting them in each specific situation.”⁷⁵ He also explained “that as a whole the trial counsel's argument separated each of the—I will call them groups of offenses by victim, very clearly delineated when they were talking about different victims and separated them clearly for the members.”⁷⁶

Nonetheless, the military judge instructed the members, “To the extent that trial counsel's argument highlighted a similarity between the offenses involving OS3 [Miller] and Ms. [Bravo] in regards to the accused's statements about tripping and invited you to use one offense in support of the other, you are instructed to completely disregard that portion of the argument that may have connected the offenses. Can the members comply with the court's instruction? That's an affirmative response from all members.”⁷⁷ Additionally, the military judge told the members that he would “highlight the issue” by “reread[ing]․the spillover instruction․to make sure that you are tracking this issue.”⁷⁸ He then did as promised, reading the full spillover instruction to the members.

We find that the military judge did not abuse his discretion in denying Appellant's motion for a mistrial. As the military judge explained, trial counsel pointed to evidence found in each specific situation that he was referring to in his argument. Additionally, during his argument, trial counsel twice reminded the members that “Each charge must stand for themselves. The military judge gave you a spillover instruction.”⁷⁹ Finally, prior to giving his rebuttal argument, trial counsel discussed his proposed comments at a 39(a) session to ensure that they would not violate the military judge's order.

We further find that the members’ behavior throughout the trial directly contradict Appellant's claim that he was prejudiced by the alleged impermissible spillover. “Court members are presumed to follow the military judge's instructions absent evidence to the contrary.”⁸⁰ Here, not only are we confident that the members followed the military judge's instructions, but they remained fully engaged throughout the court-martial. Showing considerable interest and engagement in the substantive evidence, the members asked multiple additional questions of nearly every witness.⁸¹ Additionally, they were conscientious about their duties, clarifying instructions of the military judge and requesting procedures on how to reconsider findings after more than six hours of deliberations. Ultimately the members returned findings of “Not Guilty” to four of the seven specifications charged, plus a finding of “Not Guilty but Guilty to the Lesser Included Offense” to one specification.⁸² In other words, the members’ performance demonstrated that they were not confused by the complexity of the case, the volume of the evidence, the multiple charges, or the different victims.

Taken together, we find that Appellant's assignment of error lacks merit.

D. Sentence Reassessment

Having set aside and dismissed Appellant's conviction for the greater offense of aggravated sexual contact and affirmed the lesser included offense of abusive sexual contact, we must determine whether we can reassess the sentence or must remand to the trial court for a rehearing on sentence. We do so by analyzing: (1) whether there have been dramatic changes in the penalty landscape or exposure; (2) whether sentencing was by members or military judge alone; (3) whether the nature of the remaining offenses captures the gravamen of the criminal conduct within the original offenses, and whether or not significant or aggravating circumstances addressed at the court-martial remain admissible and relevant to the remaining offenses; and (4) whether the remaining offenses are of the type with which appellate judges should have experience and familiarity to determine what sentence would have been imposed at trial.⁸³

In addition to abusive sexual contact, Appellant remains convicted of one specification of rape and one specification of assault consummated by a battery. The maximum punishment for aggravated sexual contact is a dishonorable discharge, total forfeitures, and confinement for 20 years, while the maximum punishment for abusive sexual contact is a dishonorable discharge, total forfeitures, and confinement for 7 years.⁸⁴ Despite the reduction of 13 years of potential confinement, Appellant's total exposure for his convicted offenses remains life in prison due to his conviction for rape, which includes a mandatory dishonorable discharge.⁸⁵

Appellant was sentenced by members. Notably, the military judge instructed the members only regarding the total amount of confinement they could award Appellant and did not instruct them on the maximum punishment allowable for each specific offense.⁸⁶ Thus, while the punitive exposure changed relative to the offense of aggravated sexual contact, the members would have received the exact same instruction regarding the possible sentence they could award had Appellant been convicted of abusive sexual contact at trial instead of aggravated sexual contact.

The remaining offenses and the record capture the gravamen of Appellant's criminal misconduct. The conduct for which the members found Appellant guilty of aggravated sexual contact is the exact conduct for which we now affirm his conviction of the lesser included offense of abusive sexual contact. Thus, the gravamen of the offense for which Appellant was sentenced is unchanged by reduction in title from aggravated sexual contact to abusive sexual contact.

Finally, the remaining offenses are offenses that we have sufficient experience and familiarity with to reliably determine what sentence would have been imposed at trial. Accordingly, we conclude that we can reassess the sentence.

The record is clear that Appellant committed rape against one victim, an intoxicated stranger with whom he had no prior relationship, and abusive sexual contact and assault consummated by a battery against a fellow Sailor who viewed him as a friend. Reviewing this sentence with the “individualized consideration” of the particular accused based on the “nature and seriousness of the offense and the character of the offender,” we find that the reduction of Appellant's conviction from aggravated sexual contact to abusive sexual contact would not change the sentence adjudged.⁸⁷

Based on the entirety of the record, we therefore determine that, absent the error, Appellant's sentence would still include reduction to E-1, a dishonorable discharge, and confinement for 54 months. We find this sentence to be an appropriate punishment in relation to the affirmed findings of guilty, as well as no greater than would have been imposed had the error not occurred.⁸⁸

III. Conclusion

After careful consideration of the record and briefs of appellate counsel, we have determined that the findings of guilt as to Charge I, Specification III (assault consummated by a battery) and Charge III, Specification 4 (rape) are correct in law and fact. The finding of guilt as to Charge III Specification 3 (aggravated sexual contact) is legally insufficient, but we find the evidence supports a finding of guilt to the lesser included offense of abusive sexual contact and is correct in law and fact. We find the sentence is correct in law and fact.⁸⁹

The findings as modified and sentence are AFFIRMED.

I concur with my colleagues on all but one point and, on that point, respectfully dissent. Regarding Specification 3 of Charge II, I am convinced the evidence in the record is legally sufficient to sustain Appellant's conviction for aggravated sexual assault.

“[T]he standard for legal sufficiency involves a very low threshold to sustain a conviction.”¹ We must “consider[ ] the evidence in the light most favorable to the prosecution”² and “draw every reasonable inference from the evidence of record in favor of the prosecution.”³ Doing so, we then ask “whether ․ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”⁴

For present purposes, we need ask whether any rational fact-finder could have found beyond a reasonable doubt that Appellant committed sexual contact upon OS3 Miller using physical strength sufficient to overcome OS3 Miller. The evidence indicates that Appellant repeatedly groped OS3 Miller, ignoring her repeated attempts to make him stop. Witnesses overheard, through the wall, OS3 Miller repeatedly say, “Bro get off of me.”⁵ And OS3 Miller explained at trial why she elected to return to the ship rather than remain in the apartment with Appellant, saying: “Because I'm—consider myself big. My two roommates, they're little. So if I can't fight him off, what can anybody else do?”⁶

This evidence is clearly distinguishable from that in Parker and Thomas, cited above, where the victims were incapable of resisting. In such cases it is simply illogical to find the force used was sufficient to “overcome” someone incapable of resisting. That is not the case here. OS3 Miller could and did try to resist Appellant's groping—yet she was repeatedly assaulted. The inconsistencies in her testimony go to factual sufficiency; they do not erase the other evidence presented.

Recognizing the “very low” threshold for legal sufficiency, examining the entirety of the evidence presented, considering it in the light most favorable to the Government, and drawing every reasonable inference therefrom in favor of the prosecution, I find it reasonably possible that a rational fact-finder could have found that Appellant used sufficient force to overcome OS3 Miller. Accordingly, I respectfully dissent on the issue of legal sufficiency.

However, as I consider the evidence to be factually insufficient to sustain Appellant's conviction for aggravated sexual contact, I concur in the ultimate result and sentence affirmed by my colleagues.

FOOTNOTES

2.   10 U.S.C. §§ 920, 928.

3.   Other than the names of Appellant, the judges, and counsel, all names in this opinion are pseudonyms. We have altered several of the pseudonyms used by the parties to better match genders and to avoid names like “Romeo” and “Juliet” appearing in our discussion of sexual assault offenses.

4.   R. at 724.

5.   R. 513.

6.   R. 433.

7.   R. 433-34.

8.   R. 434.

9.   R. 434.

10.   R. at 406-407, 410; Appellant's Br. at 22.

11.   Article 66(d)(1), UCMJ; United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).

12.   United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).

13.   Washington, 57 M.J. at 399.

14.   United States v. Rankin, 63 M.J. 552, 557 (N-M. Ct. Crim. App. 2006).

15.   United States v. Riggins, 75 M.J. 78, 83 (C.A.A.F. 2016); Art. 128(a)(3).

16.   United States v. Bonner, 70 M.J. 1, 3 (C.A.A.F. 2011) (internal quotation and citation omitted); MCM pt. IV, para. 77(c)(1)(A).

17.   Bonner, 70 M.J. at 3.

18.   R. at 513.

19.   The Defense arguably succeeded on this theory as Appellant was acquitted of the greater charge of aggravated assault.

20.   Art. 120, UCMJ.

21.   Art. 120(g)(4), UCMJ.

22.   Art. 120(g)(5), UCMJ.

23.   Although defined in Article 120, UCMJ, the term “force” is not defined in Article 128, UCMJ—nor does the President define “force” in the Manual for Courts-Martial for that article. See Article 128, UCMJ; Manual for Courts-Martial, United States (2019 ed.) [MCM]], pt. IV, para. 77 at IV-117-123.

24.   Although Appellant does not challenge the legal sufficiency of his convictions for assault consummated by a battery and rape, we nonetheless review the evidence for these convictions pursuant to our statutory mandate under Art. 66, UCMJ, and find the evidence legally sufficient to support Appellant's convictions for assault consummated by a battery and rape. See Turner, 25 M.J. at 325.

25.   Article 66(d)(1), UCMJ; United States v. Washington, 57 M.J. at 399.

26.   Turner, 25 M.J. at 324 (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

27.   United States v. Gutierrez, 74 M.J. 61, 65 (C.A.A.F. 2015) (citation and internal quotation marks omitted).

28.   Art. 120(g)(4), UCMJ.

29.   Art. 120(g)(5), UCMJ.

30.   R. at 510.

31.   R. at 511.

32.   R. at. 511-13.

33.   R. 1069.

34.   App. Ex. XCVIII at 20.

35.   Art. 120(g)(4)(B), UCMJ. See United States v. Parker, 75 M.J. 603, 610 (N-M. Ct. Crim. App. 2016) (“ ‘force’ is more than just a measure of the victim's ability to be overcome. It is also a complementary measure of the degree of force actually used by the perpetrator.”).

36.   R. 513.

37.   MCM para. 60.d.(3) and (4).

38.   75 M.J. 603, 609-610 (N-M. Ct. Crim. App. 2016).

39.   Id. at 610.

40.   74 M.J. 563, 567 (N-M Ct. Crim. App. 2014) (quoting Art. 120(g)(5)).

41.   2022 CCA LEXIS 398 (N-M Ct. Crim. App. July 7, 2022).

42.   2018 CCA LEXIS 555 (N-M Ct. Crim. App. December 3, 2018).

43.   2017 CCA LEXIS 494 (N-M Ct. Crim. App. July 27, 2017).

44.   We acknowledge that our colleague dissents because the standard required to find legal sufficiency allows for reasonable inferences to be drawn in favor of the prosecution. He cites specific evidence from the record that he believes helps satisfy the requirement for legal sufficiency: testimony from OS3 Miller and her roommate. We respectfully disagree on the quality and application of the evidence. The cited testimony came out well after OS3 Miller had already described being choked by Appellant, fighting him off, and escaping from him. We consider it more reasonable in the context of the entire record to apply that evidence to the assault specification rather than the aggravated sexual contact specification. As such, we do not consider it a “reasonable inference” to link this testimony to other evidence in support of the aggravated sexual contact specification.

45.   Art. 59(b) and 66(f)(1)(A)(i), UCMJ.

46.   United States v. Wilkins, 71 M.J. 410, 412 (C.A.A.F. 2012) (quoting United States v. Arriaga, 70 M.J. 51, 54 (C.A.A.F. 2011)).

47.   United States v. Odom, 53 M.J. 526, 536 (N-M. Ct. Crim. App. 2000).

48.   United States v. Upham, 66 M.J. 83, 87-88 (C.A.A.F.).

49.   United States v. Armstrong, 77 M.J. 465, 469 (C.A.A.F. 2018) (citing United States v. Miller, 67 M.J. 385, 388 (C.A.A.F. 2009)).

50.   Id. at 469 (quoting United States v. Jones, 68 M.J. 465, 472 (C.A.A.F. 2010)).

51.   Id. at 469-470.

52.   Wilkins, 71 M.J. at 412 (quoting United States v. Alston, 69 M.J. 214, 216 (C.A.A.F. 2010)).

53.   Armstrong, 77 M.J. at 470.

54.   Art. 120(g)(4), UCMJ.

55.   Art. 120(g)(5), UCMJ.

56.   Art. 120(d); MCM para. 60.b.(4)(d).

57.   Rule for Courts-Martial [R.C.M.] 916(j).

58.   App. Ex. LXXXIX at 5.

59.   United States v. Lloyd, 46 M.J. 19, 22 (C.A.A.F. 1997).

60.   United States v. Coleman, 79 M.J. 100, 103 (C.A.A.F. 2019) (quoting United States v. Tovarchavez, 78 M.J. 458, 462 (C.A.A.F. 2019)).

61.   Id.

62.   Id.

63.   App. Ex. LXXXIX at 3.

64.   Coleman, 79 M.J. at 103.

65.   We also note that the military judge merged these two offenses for sentencing. Thus, Appellant was not punished for separate offenses.

66.   R.C.M. 915(a).

67.   United States v. Rudometkin, 82 M.J. 396, 400 (C.A.A.F. 2022).

68.   United States v. Gore, 60 M.J. 178, 187 (C.A.A.F. 2004).

69.   United States v. Frost, 79 M.J. 104, 109 (C.A.A.F. 2019) (quoting United States v. Kelly, 72 M.J. 237, 242 (C.A.A.F. 2013)).

70.   R. 197.

71.   See R. at 197-200 (trial counsel requests clarification of military judge's spillover ruling); R. at 399-400 (trial counsel asks questions about his planned opening statement to ensure his comments will not run afoul of the military judge's spillover ruling); and R. at 495-500 (trial counsel seeks clarification about the order of his witnesses to ensure the evidence of each offense is separate and thereby in accordance with the military judge's spillover ruling).

72.   R. 1070.

73.   R. 1074.

74.   R. 1088.

75.   R. 1088.

76.   R. 1088.

77.   R. 1096.

78.   R. at 1096.

79.   R. at 1071, 1079.

80.   United States v. Jones, 220 CCA LEXIS 207, *37 (A.F. Ct. Crim. App. 2020) (citing United States v. Taylor, 53 M.J. 195, 198 (C.A.A.F. 2000) (citations omitted)). Similar to this case, the members in Jones returned mixed findings to a charged Article 120 offense, leading our sister service court of appeals to conclude this provided “some indication that [the members] appreciated the requirement that each charged offense stand on its own.” Id.

81.   See App. Ex. XLVIII-LXIII; LXVI-LXXIX; LXXXI-LXXXII; LXXXIV-LXXXVI.

82.   R. at 1149.

83.   United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013).

84.   MCM, Appendix 12, at 5.

85.   MCM, Appendix 12, at 5.

86.   R. 1229.

87.   United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (internal quotation omitted).

88.   United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986).

89.   Articles 59 & 66, UCMJ.

1.   United States v. King, 78 M.J. 218, 221 (C.A.A.F. 2019) (citing United States v. Navrestad, 66 M.J. 262, 269 (C.A.A.F. 2008) (Effron, C.J., joined by Stucky, J., dissenting).

2.   Turner, 25 M.J. at 324.

3.   United States v. Gutierrez, 74 M.J. 61, 65 (C.A.A.F. 2015) (citation and internal quotation marks omitted).

4.   United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (emphasis in original). The Court of Military Appeals in Turner, 25 M.J. at 324 (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)) had slightly altered the Supreme Court's test of legal sufficiency by substituting “a reasonable fact-finder” for “any rational trier of fact.” Later in Barner, the CAAF described the test using the exact language in Jackson: “any rational trier of fact”—including the original emphasis on “any.” This emphasis is but another reminder of just how low the threshold for legal sufficiency is.

5.   R. at 433.

6.   R. at 523.

HACKEL, Judge:

Judge HACKEL delivered the opinion of the Court, in which Senior Judge STEWART joined. Chief Judge HOLIFIELD joined the opinion, except as to part II.A.2.