UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                         MULLIGAN, HERRING, and BURTON
                             Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                     First Lieutenant JAMES G. DONOHUE
                          United States Army, Appellant

                                   ARMY 20140124

                      Headquarters, III Corps and Fort Hood
                       Rebecca K. Connally, Military Judge
              Colonel Stuart W. Risch, Staff Judge Advocate (pretrial)
              Colonel Ian G. Corey, Staff Judge Advocate (post-trial)


For Appellant: Captain Jennifer K. Beerman, JA; Zachary D. Spilman, Esquire (on
brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major Daniel D. Derner, JA; Captain
Timothy C. Donahue, JA (on brief).


                                      30 June 2016

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                               SUMMARY DISPOSITION
                              ----------------------------------

Per Curiam:

       An officer panel sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of abusive sexual contact, one
specification of wrongful sexual contact, one specification of indecent acts, and one
specification of conduct unbecoming an officer and a gentleman, in violation of
Articles 120 and 133 Uniform Code of Military Justice, 10 U.S.C. §§ 920, 933 (2006
& Supp. IV) [hereinafter UCMJ]. The panel sentenced appellant to a dismissal and
twenty-four months confinement. The convening authority approved the findings
and sentence as adjudged.
DONOHUE-ARMY 20140124

        This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises fifteen assignments of error, three of which require discussion and relief. 1
Appellant alleges the military judge committed error by merging for sentencing,
rather than dismissing, specifications charged in the alternative. Further, the
appellant challenges the legal and factual sufficiency of his conviction for
committing an indecent act. We find that both these arguments have merit and grant
appropriate relief in our decretal paragraph. Appellant also asks this court to
provide relief to remedy the dilatory post-trial processing of his case. We agree that
relief is appropriate and reduce the approved sentence to confinement in our decretal
paragraph.

                                  BACKGROUND

       Appellant and two other Army officers, JM and LH, rented a private home
near Killeen, Texas. Each officer had a private bedroom and shared the common
areas of the home. They had all been friends while deployed to Iraq and had decided
to share an off-post residence upon their return to the United States. One evening in
late January 2011, all three officers went out to dinner and had some drinks. Upon
returning to the house they all shared, they began to watch a movie on television.
JM had several more beers and fell asleep in the recliner. At one point in the
evening LH excused himself as he had an early flight to the National Training Center
the next morning and he retired to his bedroom. The appellant was on the couch and
JM was still asleep in the reclining chair.

        Sometime after LH left the room, the appellant moved near the reclining
chair where JM was asleep and began to rub JM’s penis. This activity stopped when
JM awoke and yelled at the appellant. JM followed appellant out into the back yard
of the home where he continued to yell at appellant and began to strike him. LH was
awakened by this commotion, left his bedroom, and found appellant crying in the
back yard. LH did not observe any of the activity that occurred in the living room
after he left the room approximately an hour earlier.

                           ALTERNATIVE CHARGING

       It is clear from the record that Specification 3 of Charge I, abusive sexual
contact, and Specification 4 of Charge I, wrongful sexual contact, were charged in
the alternative. 2 Our superior court has unambiguously stated that when


1
  The assignments of error personally raised by appellant pursuant to United States
v. Grostefon, 12 M.J. 431 (C.M.A. 1982), are without merit.
2
 The Government concedes this point, as well as the appropriateness of dismissing
Specification 4 of Charge I, in its brief.

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DONOHUE-ARMY 20140124

specifications are charged in the alternative for exigencies of proof and a panel
returns guilty findings for both, the military judge must either “consolidate or
dismiss a specification.” United States v. Elespuru, 73 M.J. 326, 329 (C.A.A.F.
2014). Accordingly, we will grant appropriate relief and dismiss Specification 4 of
Charge I.

                  LEGAL SUFFICIENCY OF INDECENT ACT

      Among other charges the panel found appellant guilty of Specification 5 of
Charge I, in violation of Article 120, UCMJ, which alleged:

             In that [appellant], did, at or near Killeen, Texas, between
             on or about 10 January 2011 and on or about 1 February
             2011, wrongfully commit indecent conduct, to wit: touch
             the exposed penis of [1LT JM] with his hand, while
             another person was in a separate room that could have
             came [sic] into the room and witnessed the conduct by
             [appellant].

The touching alleged in this specification is the same act that forms the basis for
Specification 3 of Charge I, abusive sexual contact. Appellant was also found guilty
of that specification. It is clear from the wording of the specification and the facts
in this case that the basis for criminality is the presence of the third roommate, LH,
in the house at the time of the sexual activity. 3

       In accordance with Article 66(c), UCMJ, we review issues of legal sufficiency
de novo. 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, a reasonable factfinder could have found all the
essential elements beyond a reasonable doubt.” United States v. Turner, 25 M.J. 324
(C.M.A. 1987); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979); United
States v. Humphreys, 57 M.J. 83, 94 (C.A.A.F. 2002). In resolving questions of
legal sufficiency, we are “bound to draw every reasonable inference from the



3
  The Government argues in its brief that the case law interpreting “open and
notorious” indecent acts only involves consensual sexual activity, and we should not
apply it to the present case as it involves nonconsensual sexual activity. The
Government fails to recognize that the only way this specification can stand as a
separate offense is if we find it indecent due to its allegedly open and notorious
nature. If the Government theory were to be that this conduct is indecent because it
is nonconsensual, then it would be a lesser included offense of the abusive sexual
contact specification (Specification 3 of Charge I).

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DONOHUE-ARMY 20140124

evidence of record in favor of the prosecution.” United States v. Barner, 56 M.J.
131, 134 (C.A.A.F. 2001).

        The fact that appellant touched the penis of JM with his hand is not in dispute.
The appellant admitted this conduct in his statement to the police and his testimony
at trial. It is also beyond dispute that the third roommate, LH was present in the
house at the time. However, this analysis does not end our inquiry. The home
where the crime occurred was a private residence. All three officers agreed to rent
and occupy the home together. According to a diagram of the home admitted at
trial, the bedroom occupied by LH was located so that it did not have direct access
to the living room. Rather, LH would have to leave his bedroom, go down a short
hallway and enter the kitchen before he could possibly view any activity taking
place in the living room. LH did not view any of the activity and was unaware that
anything was occurring until he heard JM and the appellant yelling. Under these
circumstances there is not sufficient evidence, as a matter of law, of the open and
notorious nature of the sexual conduct to sustain a finding of guilty of committing
an indecent act. United States v. Izquierdo, 51 M.J. 421, 423 (C.A.A.F. 1999); see
also United States v. Berry, 6 U.S.C.M.A. 609, 614 20 C.M.R. 325, 330 (1956).

                               POST-TRIAL DELAY

       The convening authority took action 381 days after the conclusion of
appellant’s court-martial. Of that delay, 354 days are attributable to the
government. The record in this case consists of thirteen volumes, and the trial
transcript is 1,252 pages. Although we find no due process violation in the post-trial
processing of appellant’s case, we must still review the appropriateness of the
sentence in light of the unjustified dilatory post-trial processing. UCMJ art. 66(c);
United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002) (“[Pursuant to Article
66(c), UCMJ, service courts are] required to determine what findings and sentence
‘should be approved,’ based on all the facts and circumstances reflected in the
record, including the unexplained and unreasonable post-trial delay.”). See
generally United States v. Toohey, 63 M.J. 353, 362-63 (C.A.A.F. 2006); United
States v. Ney, 68 M.J. 613, 617 (Army Ct. Crim. App. 2010); United States v.
Collazo, 53 M.J. 721, 727 (Army Ct. Crim. App. 2000).

       The government has not provided any explanation for the lengthy post-trial
delay in processing this case. The delay between announcement of sentence and
action is simply too long, and could “adversely affect the public’s perception of the
fairness and integrity of military justice system . . . .” Ney, 68 M.J. at 617. Thus,
we find relief in the form of a thirty-day reduction as to the sentence to confinement
is appropriate under the facts of this case.




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DONOHUE-ARMY 20140124

                                   CONCLUSION

       The findings of guilty of Specifications 4 and 5 of Charge I are set aside and
those specifications are DISMISSED. The remaining findings of guilty are
AFFIRMED.

       We are able to reassess the sentence on the basis of the errors noted and do so
after conducting a thorough analysis of the totality of circumstances presented by
appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Sales, 22 M.J. 305 (C.M.A. 1986) and United States v.
Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013). In evaluating the Winckelmann
factors, we first find there is a change in the penalty landscape as the potential
maximum sentence to confinement is reduced from thirteen years to eight years. 4
Second, the appellant chose sentencing by an officer panel. Third, we find the
remaining offenses capture the gravamen of appellant’s criminal conduct which,
ultimately, stemmed from the same act. Finally, based on our experience as judges
on this court, we are familiar with the remaining offenses so that we may reliably
determine what sentence would have been imposed at trial. We are confident that
based on the entire record and appellant’s course of conduct, the panel would have
imposed a sentence of at least a dismissal and twenty-one months confinement. We
find this reassessed sentence is not only purged of any error but is also appropriate.

       Having conducted this reassessment and considering the dilatory post-trial
processing, we AFFIRM only so much of the sentence as provides for confinement
for twenty months and dismissal from the service. All rights, privileges, and
property, of which appellant has been deprived by virtue of that portion of the
findings and sentence set aside by this decision, are ordered restored. See UCMJ
arts. 58a(b), 58b(c), and 75(a).


                                        FOR THE COURT:




                                        MALCOLM H. SQUIRES, JR.
                                        MALCOLM H. SQUIRES, JR.
                                        Clerk of Court
                                        Clerk of Court



4
 The military judge instructed the panel to treat Specifications 3 (abusive sexual
contact) and Specification 4 (wrongful sexual contact) of Charge I as one offense for
sentencing; thus the maximum punishment to confinement is only reduced by five
years due to the dismissal of Specification 5 (indecent act) of Charge I.

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