         U NITED S TATES N AVY –M ARINE C ORPS
             C OURT OF C RIMINAL A PPEALS
                       _________________________

                           No. 201600060
                       _________________________

                UNITED STATES OF AMERICA
                               Appellee
                                   v.
                   NATHANIEL BRACEWELL
          Boatswain’s Mate Second Class (E-5), U.S. Navy
                             Appellant
                      _________________________
 Appeal from the United States Navy-Marine Corps Trial Judiciary

        Military Judge: Captain Robert J. Crow, JAGC, USN.
 Convening Authority: Commander, Navy Region Southeast, Naval
                    Air Station, Jacksonville, FL.
Staff Judge Advocate’s Recommendation: Commander Nell O. Evans,
                             JAGC, USN.
     For Appellant: Lieutenant Rachel Weidemann, JAGC, USN.
  For Appellee: Major Corey Carver, USMC; Captain Sean Monks,
                                USMC.
                       _________________________

                        Decided 11 May 2017
                       _________________________

    Before G LASER -A LLEN , MARKS , and J ONES , Appellate Military
                                 Judges
                        _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
                     _________________________

   GLASER-ALLEN, Chief Judge:

   At a contested general court-martial, officer and enlisted members
convicted the appellant of three specifications of abusive sexual contact
against Engineman Third Class (EN3) AC—violations of Article 120(d),
                  United States v. Bracewell, No. 201600060


Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920 (2012).1 The
members sentenced the appellant to six months’ confinement, reduction to
paygrade E-1, and a dishonorable discharge. The convening authority (CA)
approved the sentence and, except for the punitive discharge, ordered it
executed.
   The appellant raises two assignments of error: (1) the evidence is legally
and factually insufficient for his convictions; and (2) his sentence is
inappropriately severe. We find no error materially prejudicial to the
appellant’s substantial rights and affirm. Arts. 59(a) and 66(c), UCMJ.
                               I. BACKGROUND
   The appellant was stationed aboard USS FORT MCHENRY (LSD 43). On
3 June 2014, the ship made a port visit to Mayport, Florida. The appellant
and fellow male shipmates socialized at a bar and strip club that evening. At
both locations his group independently encountered a group of female Sailors
from the ship, including Hospital Corpsman First Class (HM1) AA and EN3
AC.
   Both groups left the club in separate vehicles and returned to base around
0200. They parked near the ship. HM1 AA’s shipmates were unable to rouse
her upon return. Therefore, they decided EN3 AC would remain in the
parked sport-utility vehicle (SUV) with HM1 AA until she could regain her
faculties enough to return to the ship.
    The appellant expressed his concerns that it was unsafe for EN3 AC and
HM1 AA to remain in the SUV, but EN3 AC elected to remain in the vehicle
with HM1 AA while both groups returned to the ship. EN3 AC watched the
appellant and both groups head toward the ship, locked the doors to the SUV,
and went to sleep in the second row of seats. A few minutes later, she awoke
to the appellant attempting to enter the vehicle. She persuaded him that she
and HM1 AA were safe in the parking lot and went back to sleep.
    EN3 AC believed she had locked the SUV, but when she next awoke, the
appellant was inside the vehicle staring at her. He climbed into the second
row of seats with her, put his tongue in her mouth, pushed her cheeks
together to put his tongue in her mouth again, then touched and put his
mouth on her breast under her bra. She eventually escaped the SUV, ending
the assault. Her efforts to get HM1 AA out of the vehicle resulted in HM1 AA
falling to the ground. While this fall roused her, HM1 AA was still unable to
walk unassisted. The appellant insisted on helping to carry HM1 AA, so he



   1 The members acquitted the appellant of one specification of abusive sexual
contact against Hospital Corpsman First Class AA.

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                  United States v. Bracewell, No. 201600060


and EN3 AC assisted HM1 AA onto the ship. Within the next day or two,
EN3 AC told a friend about the incident, and the friend reported it.
                                II. DISCUSSION
A. Legal and factual sufficiency
    We review questions of legal and factual sufficiency de novo. Art. 66(c),
UCMJ; United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The
test for legal sufficiency is “whether, considering the evidence in the light
most favorable to the prosecution, any reasonable fact-finder could have
found all the essential elements beyond a reasonable doubt.” United States v.
Day, 66 M.J. 172, 173-74 (C.A.A.F. 2008) (citing United States v. Turner, 25
M.J. 324, 324 (C.M.A. 1987)). In applying this test, “we are bound to draw
every reasonable inference from the evidence of record in favor of the
prosecution.” United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001)
(citations omitted).
    The test for factual sufficiency is whether, “after weighing all the evidence
in the record of trial and recognizing that we did not see or hear the
witnesses as did the trial court, this court is convinced of the appellant’s guilt
beyond a reasonable doubt.” United States v. Rankin, 63 M.J. 552, 557 (N-M.
Ct. Crim. App. 2006) (citing Turner, 25 M.J. at 325 and Art. 66(c), UCMJ),
aff’d on other grounds, 64 M.J. 348 (C.A.A.F. 2007). In conducting this unique
appellate role, 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. We may “judge the credibility of witnesses, and determine
controverted questions of fact,” and substitute our judgment for that of the
fact finder. Art 66(c), UCMJ; United States v. Cole, 31 M.J. 270, 272 (C.M.A.
1990). While this is a high standard, the phrase “beyond a reasonable doubt”
does not imply that the evidence must be free from conflict. Rankin, 63 M.J.
at 557 (citation omitted).
     Under 10 U.S.C. § 920(d) (2012), a person subject to the UCMJ “who
commits or causes sexual contact upon or by another person, if to do so would
violate subsection (b) (sexual assault) had the sexual contact been a sexual
act, is guilty of abusive sexual contact[.]” A “sexual contact” is “any touching .
. . either directly or through the clothing, any body part of any person, if done
with an intent to arouse or gratify the sexual desire of any person. Touching
may be accomplished by any part of the body.” 10 U.S.C. § 920(g)(2)(B). A
“bodily harm” is “any offensive touching of another, however slight, including
any nonconsensual sexual act or nonconsensual sexual contact.” 10 U.S.C. §
920(g)(3).


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   Thus, to convict the appellant of abusive sexual contact, the government
had to prove:
          One, that on or about 3 June 2014, at or near Mayport, Florida,
          the appellant committed sexual contact upon EN3 AC, to wit:
          wrongfully kiss[ing] her lips (Specification 1);
          wrongfully touching her breast with his hand (Specification 2)
          and his tongue (Specification 3);
          and;
          Two, that he did so by causing bodily harm to EN3 AC to wit:
          squeezing her cheeks with his hand (Specification 1);
          nonconsensual sexual contact (Specifications 2 and 3).
Record at 438-49; MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.),
Part IV, ¶45.b.(8)(b); Appellate Exhibit XXI.
    The appellant argues “[t]he Government did not prove the sexual contact
[specifications] were committed by bodily harm.”2 The appellant concedes
that his own statements in the recorded Naval Criminal Investigative Service
(NCIS) interrogation, his sworn statement, and the DNA evidence establish
that “some sexual contact did occur.”3 However, he avers there is insufficient
evidence to establish the sexual contact “was nonconsensual or was
committed by bodily harm”4 because the government’s “only evidence was the
testimony of an unbelievable witness who lacked any corroboration.”5 We
disagree.
   Despite some inconsistencies, overall we find EN3 AC’s account of the
sexual contact credible, as she described all three charged offenses in detail
and it was clear that she had demonstrated no sexual interest in the
appellant.
   EN3 AC testified that she and the appellant never dated, never had a
sexual encounter, and had only a professional relationship. She further

    2   Appellant’s Brief of 16 Aug 2016 at 13.
    3Id. The government expert testified that his DNA profile was about “ten times
higher than EN3 AC’s DNA profile,” and concluded that this difference would result
from either prolonged contact of the inside of the bra by the appellant or from his
bodily fluid being present. Record at 247.
    4 We note that “[t]he definition of bodily harm . . . includes nonconsensual sexual

acts or contact.” United States v. Guin, 75 M.J. 588, 593 (N-M. Ct. Crim. App. 2016),
rev.denied, 75 M.J. 367 (C.A.A.F. 2016).
    5   Appellant’s Brief at 11.

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                    United States v. Bracewell, No. 201600060


explained that she had rebuffed his advances that evening, did not dance
with him at all that night, and gave him no impression that she was
interested in him. When he told her he did not think it was safe to remain in
the SUV, she ignored him. And the first time he approached the SUV in the
parking lot after both groups headed toward the ship, she told him to go
away. This is all consistent with EN3 AC’s contention that none of the sexual
contact was consensual—but was instead bodily harm.
    First, she explained that at the strip club, the appellant sent a friend to
ask her to come over to his table. When she went to the table, the appellant
told her he was romantically interested in her, but she did not reciprocate
that interest. Former Seaman (SN) SB testified that the appellant had
expressed a romantic interest in EN3 AC to him earlier that evening and
confirmed that he was the messenger the appellant sent to ask EN3 AC to
visit his table. However, SN SB testified that despite the conversation he
facilitated between the two, he never observed them dancing or flirting
together that evening—even though EN3 AC and the other women danced
with other male Sailors. SN SB also made sexual comments about EN3 AC in
the men’s vehicle on the drive back to the base and recalled that the
appellant was irritated, telling him to “calm down don’t talk about my girl.”6
   Second, EN3 AC testified that after the two groups decided to leave HM1
AA and her in the SUV, the appellant told her he did not think it was safe.
She told him she was fine in the parking lot as it was close to the ship’s entry
control point (ECP). After the groups departed for the ship, EN3 AC awoke
minutes later to the appellant pulling on the SUV’s door handle, and again
convinced him she and HM1 AA were safe. However, despite twice telling the
appellant she was fine and did not need his assistance, he again returned to
the vehicle.
  It was this second visit that culminated in the abusive sexual contact.
EN3 AC testified when she awoke to find the appellant inside the vehicle, he:
         was in [a] crouching position headed towards the backseat. So
         the only thing I knew then was to just put my hands up for
         protection of whatever was going to happen and he came down
         on me, with his hands around my neck, and he stuck his tongue
         in my mouth. He was squeezing my cheeks with his hands to
         force my mouth open, put his tongue in my mouth again. He
         went underneath my shirt and bra, and he put his mouth
         around my breast. And the whole time I’m fighting him off




   6   Record at 258.

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                     United States v. Bracewell, No. 201600060


         telling him no, stop, this isn’t good, this is not good, like no, I
         don’t want this. You know, this is not good.7
    Third, EN3 AC testified that in her struggle to escape the appellant’s
assault, she was “nudging HM1 [AA] the whole time like elbowing her,
pinching her.”8 HM1 AA testified about finding “some nail marks on my left
thigh”9 that corroborated EN3 AC’s contention that she pinched HM1 AA
with her nails in the futile attempt to rouse HM1 AA during the incident.10
Similarly, Quartermaster First Class (QM1) KG was the designated driver
for the women’s group that evening. Although she did not recall EN3 AC
telling her about the incident that evening, she noted that she was personally
tired by the evening’s events, the attempts to rouse HM1 AA, and the late
hour. There is some minor discrepancy as to when exactly EN3 AC told QM1
KG about the incident, but the conversation occurred within two days of the
assault. QM1 KG clearly remembers EN3 AC was “emotional, sad, kind of
distraught”—so much so that QM1 KG reported the incident to her chain of
command.11
   Next, the appellant contends that EN3 AC’s testimony is not credible
because she: (1) made multiple inconsistent statements, (2) was directly
contradicted by multiple government witnesses, (3) had a motive to fabricate,
and (4) has a character for untruthfulness. We disagree.
    Although EN3 AC testified that there was tension between her and the
appellant after she rebuffed his advances at the strip club and he attempted
to enter her vehicle on the drive home, these events were not corroborated by
any other witness. Likewise, she said she told QM1 KG about the assault
that night in berthing, but QM1 KG testified to recalling that discussion
having occurred a day or two later. As in any trial, there were some
discrepancies between the witnesses and in EN3 AC’s testimony, but here
these differences were on issues of minor importance to the overall case.12



   7   Id. at 312 (emphasis added).
   8   Id.
   9   Id. at 378.
   10   Id. at 378-79. Prosecution Exhibit (PE) 4 at 1-2.
   11   Record at 274.
   12  The military judge instructed the members, “Bear in mind you may properly
believe one witness and disbelieve several other witnesses whose testimony is in
conflict with the one. The final determination as to the weight or significance of the
evidence and the credibility of the witnesses in this case rests solely upon you, the
members of the court.” Id. at 453.

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                      United States v. Bracewell, No. 201600060


    The alleged motive to fabricate a sexual assault allegation—to obtain an
expedited transfer back to Norfolk—was easily rebutted. While it was true
the ship was soon executing a homeport change from Norfolk to Mayport and
EN3 AC had a good childcare situation for her son in Norfolk with her
mother, there is little evidence that the shift to Florida was a significant
concern for her. The request for transfer back to a Norfolk-based command,
occurred only after the appellant, and later his friend, confronted EN3 AC on
the messdecks about the allegations. EN3 AC waited three weeks after the
report—and after the confrontations—before requesting a transfer. According
to EN3 AC, she had arranged childcare for her son in Florida and signed a
lease. The expedited transfer cost her “[her] welcome package and [her]
$200.00 security deposit.”13
    Similarly, evidence of EN3 AC’s character for untruthfulness, provided by
a former roommate, was not particularly compelling given the fact that the
two had experienced a falling out over an unpaid bill. Additionally, all of the
appellant’s contentions on appeal regarding EN3 AC’s credibility were raised
by the defense at trial through skillful cross-examination and in the defense’s
own case in chief.
    However, the most compelling evidence was likely the appellant’s own
interrogation. The appellant did not testify at trial, but the video of his entire
NCIS interrogation, lasting over five hours, was played for the members.
During the vast majority of the interrogation, he denied any physical contact
with either HM1 AA or EN3 AC. However, when finally confronted about
possible DNA evidence linking him to the allegations involving EN3 AC, he
suddenly admitted to some touching of EN3 AC, including “probably licking
her breast.”14 But he argued it was consensual.
    The appellant’s substantial change in demeanor after being confronted
with potential DNA evidence is also significant in our assessment of his
credibility. For the vast majority of the interrogation he appeared at ease and
almost relaxed, but he became agitated and dramatically increased his rate of
speech when discussing the possibility of his DNA inside the cup of EN3 AC’s
bra. His admission, along with demeanor change, was even noted by the
agents who warned him that the video could be evidence at trial. Finally,
near the end of the interrogation, the appellant mentioned for the first time
that one of his friends also confronted EN3 AC on the ship about the
allegations and recorded the conversation without EN3 AC’s knowledge.
    A reasonable factfinder could have found sexual contact and bodily harm,
for purposes of the abusive sexual contact convictions, from the appellant

   13   Id. at 354.
   14   PE 2; See also, PE 3 at 4.

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                     United States v. Bracewell, No. 201600060


conceding the sexual contact, the DNA evidence establishing the sexual
contact, EN3 AC’s testimony about rebuffing his repeated advances, and the
other witnesses’ testimony corroborating portions of EN3 AC’s testimony.
Beyond legal sufficiency, the appellant’s confrontations with EN3 AC that
evening, her specificity regarding the allegations, and the relative weakness
of her motive to fabricate demonstrate the strength of the government’s case.
Likewise, the appellant’s initial denials of contact, stark reversal in
demeanor, and peculiar discussion about the sexual contact when confronted
with possible DNA evidence during his interrogation demonstrate
consciousness of guilt. Weighing all the evidence, and making allowances for
not having observed the witnesses, we also are convinced beyond a
reasonable doubt that the abusive sexual contact convictions are factually
sufficient.
B. Sentence appropriateness
    We review sentence appropriateness de novo. United States v. Lane, 64
M.J. 1, 2 (C.A.A.F. 2006). Under Article 66(c), UCMJ, a military appellate
court “may affirm only such findings of guilty and the sentence or such part
or amount of the sentence, as it finds correct in law and fact and determines,
on the basis of the entire record, should be approved.” “Sentence
appropriateness involves the judicial function of assuring that justice is done
and that the accused gets the punishment he deserves.” United States v.
Healy, 26 M.J. 394, 395 (C.M.A. 1988). This requires “‘individualized
consideration’ of the particular accused ‘on the basis of the nature and
seriousness of the offense and the character of the offender.’” United States v.
Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (quoting United States v. Mamaluy,
27 C.M.R. 176, 180-81 (C.M.A. 1959)). “While [a Court of Criminal Appeals]
clearly has the authority to disapprove part or all of the sentence and
findings,” we may not engage in acts of clemency. United States v. Nerad, 69
M.J. 138, 145 (C.A.A.F. 2010).
    Here the guilty findings were merged for sentencing, making the
maximum punishment seven years’ confinement, total forfeitures, a fine,
reduction to paygrade E-1, and a dishonorable discharge. Trial counsel
argued for one year of confinement, reduction to E-1, and a dishonorable
discharge; defense counsel argued for three months’ confinement and
reduction to E-3. The appellant contends his sentence, specifically his
dishonorable discharge, is “inappropriately severe due to his seven years of
service, including two deployments, and the circumstances surrounding the
offense[s].”15



   15   Appellant’s Brief at 22.

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                     United States v. Bracewell, No. 201600060


   The appellant pursued a shipmate junior to him after she had repeatedly
rebuffed his advances. He sexually assaulted her by entering the SUV where
she was asleep, after having been rejected and told to go away. All of this
occurred on base and just outside the ship’s ECP, where EN3 AC should have
had peace of mind that she would be safe. EN3 AC testified to the lasting
harm caused by the appellant’s actions, stating she felt “betrayed and . . .
setback in my career” and “now, I’m just kind of like standoffish more and
hard to communicate with people and even . . . been called weird.”16 She also
noted substantial sleep difficulties that negatively impacted her work
performance and how difficult it was to discuss the incident with family
members.
   RULE FOR COURTS-MARTIAL 1003(b)(8)(B), MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2012 ed.), provides that a dishonorable discharge
“should be reserved for those who should be separated under conditions of
dishonor[.]” After review of the entire record, we find that the sentence is
appropriate for this offender and his offense. United States v. Baier, 60 M.J.
382, 384-85 (C.A.A.F. 2005); Healy, 26 M.J. at 395-96; Snelling, 14 M.J. at
268.
    Considering the nature and seriousness of the appellant’s misconduct and
the distrust it engendered in his victim, and having weighed the appellant’s
otherwise honorable service and the evidence submitted in extenuation and
mitigation, we conclude that the approved sentence is appropriate under the
circumstances. Granting sentence relief at this point would be to engage in
clemency—a function reserved for the CA—and we decline to do so. Healy, 26
M.J. at 395–96.
                                III. CONCLUSION
   The findings and the sentence are affirmed.
   Senior Judge MARKS and Judge JONES concur.
                                            For the Court


                                            R.H. TROIDL
                                            Clerk of Court




   16   Record at 511-12.

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