UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                              COOK, TELLITOCCI 1, and HAIGHT
                                 Appellate Military Judges

                              UNITED STATES, Appellee
                                           v.
                         Specialist THOMAS D. MOELLERING
                             United States Army, Appellant

                                      ARMY 20130516

                  Seventh Army Joint Multinational Training Command
                            Joshua S. Shuey, Military Judge
              Lieutenant Colonel David E. Mendelson, Staff Judge Advocate

For Appellant: Captain Patrick A. Crocker, JA (argued); Colonel Kevin Boyle, JA;
Lieutenant Colonel Peter Kageleiry, Jr., JA; Major Vincent T. Shuler, JA; Captain
Patrick A. Crocker, JA (on brief).

For Appellee: Captain Timothy C. Donahue, JA (argued); Colonel John P. Carrell,
JA; Major Daniel D. Derner, JA; Captain Timothy C. Donahue, JA (on brief) .


                                         29 June 2015
                                  ---------------------------------
                                  MEMORANDUM OPINION
                                  ---------------------------------
COOK, Senior Judge:

       A panel consisting of officer and enlisted members sitting as a general court-
martial convicted appellant, contrary to his pleas, of sexual assault, abusive sexual
contact, and adultery, in violation of Articles 120 and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 920, 934 (2012) [hereinafter UCMJ]. 2 The convening
authority approved only so much of the adjudged sentence that includes a bad-
conduct discharge and 180 days of confinement.

      This case is before us for review pursuant to Article 66, UCMJ. Appellant has
assigned several errors. Two of these assigned errors, challeng es to the factual and
1
    Judge Tellitocci took final action in this case prior to his departure from the court.
2
    Appellant was found not guilty of an additional charge of adultery.
MOELLERING—ARMY 20130516

legal sufficiency of appellant’s convictions under Article 120, UCMJ, merit
discussion. Moreover, relief is warranted based on the factual insufficiency of
appellant’s conviction for abusive sexual contact .

                                       FACTS

       On the night of 1 September 2012, appellant and Private First Class (PFC)
AW went to a bar in Grafenwoehr, Germany. Appellant and PFC AW were friends
and consumed alcoholic beverages while they waited for the arrival of a mutual
friend, Private E-2 (PV2) AP. The three were members of the “Cowboy Crew ,” a
group of junior soldiers stationed in Vilseck or Graf enwoehr. Once PV2 AP arrived,
all three drank multiple alcoholic beverages and danced. Private First Class AW
drank liquor quite heavily and as a result vomited repeatedly throughout the night.
Because PFC AW’s barracks room was located in Vilseck, she arranged wi th PV2
AP to stay in her barracks room in Grafenwoehr after their night of drinking.
Appellant was responsible for driving all three to PV2 AP’s barracks.

      Although appellant was married, his relationship with PV2 AP included
regular sexual activity. Private AP explained to PFC AW that appellant would be
spending the night in her room, but that PFC AW was welcome to stay in a spare
room attached to PV2 AP’s barracks room.

       At trial, PFC AW testified that during the car ride from the bar to the barracks
a conversation about prospective sexual activities among the three ensued, wherein ,
PFC AW stated, “[appellant] was not allowed to touch [her]” and that “only [PV2
AP]” was allowed to touch her. The reason for making this declaration, according
to PFC AW, was that “earlier that night [appellant] touched my butt, and I just
didn’t want him touching me at all . . . .” Although appellant initially denied
hearing this declaration when interviewed by Army Criminal Investigation Command
(CID) agents, he subsequently admitted to CID that PFC AW had made a statement
to this effect while appellant, PFC AW, and PV2 AP were in the bar that night. In
addition, appellant described a conversation that involved himself, PFC AW and
PV2 AP wherein PFC AW consented to PV2 AP touching her and PV2 AP stated she
was comfortable with engaging in sexual activity that included appellant and PFC
AW. At trial, PV2 AP denied ever hearing PFC AW make this statement and denied
being involved in a conversation that covered the “ground rules,” as it were, for
sexual activity about to take place in her room .

        All agreed that PFC AW and PV2 AP “made out” in the back seat of the car as
the three friends traveled to the barracks. According to PFC AW, this was not the
first time the two had kissed. To the contrary, “there [was] a group of us girls that .
. . when we get drunk we kiss . . . .” When the three arrived at PV2 AP’s barracks
room, the sexual activity escalated.




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       According to PFC AW’s testimony, the activity began with her and PV2 AP
continuing to “make out” and then undressing and performing oral sex on each other
while on PV2 AP’s bed. Both PFC AW and PV2 AP stated that this sexual activity
was consensual. Although PFC AW and PV2 AP had no clothing on while engaging
in oral sex, PFC AW did not recall how clothing was removed. Private First Class
AW remembered that appellant and PV2 AP had sexual intercourse on PV2 AP’s
bed. Appellant was on top of PV2 AP while PFC AW was also lying in the bed
“between them and the wall,” watching a movie on a computer that sat on a table in
PV2 AP’s room. According to PFC AW’s testimony, it was then, with all three
sharing a bed and nude, that appellant “just grabbed” her breast. Appellant did so
without warning and without PFC AW’s consent. It was this touching that served as
the basis for appellant’s abusive sexual contact conviction.

       After having her breast grabbed, PFC AW pushed appellant’s hand away, but
did not leave PV2 AP’s bed. Appellant then resumed sexual activity with PV2 AP
and did not attempt to touch PFC AW’s breast again. However, while the three
friends were still sharing PV2 AP’s bed, appellant placed a finger inside of PFC
AW’s vagina. Appellant was originally charged separately for this touching, but th e
specification was not referred to court-martial, presumably because PFC AW could
not remember if this event occurred during her testimony at the Article 32, UCMJ,
pretrial investigation hearing. When asked at trial about this lapse, PFC AW
attributed it to not getting enough sleep the night before the hearing.

       Private First Class AW testified she got appellant to stop the digital
penetration by telling him to stop. The next thing PFC AW remembered was PV2
AP getting off the bed and going into a bathroom. At this point, PFC AW recalled
appellant getting on top of her and placing his penis inside her vagina. After PFC
AW told appellant two separate times to stop, appellant withdrew his penis from
PFC AW’s vagina. This served as the basis for appellant’s conviction for sexual
assault against PFC AW by bodily harm.

       Private First Class AW maintained she had not consented to or requested any
sexual contact with appellant. On cross-examination, PFC AW admitted to not
remembering a lot of the details surrounding what happe ned in PV2 AP’s room due
to her high level of intoxication. She did remember consensually re-engaging in oral
sex with PV2 AP after appellant had grabbed her breast. She did not remember
performing oral sex on appellant that evening.

       After PFC AW told appellant to “stop” a second time, he got off of her and
went into the bathroom with PV2 AP. Private First Class AW then got dressed and
left PV2 AP’s room. She called her ex-boyfriend, Sergeant (SGT) RH, who lived
close-by to PV2 AP, and asked to meet outside SGT RH’s building.




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        Sergeant RH testified at trial that when he met PFC AW outside his building
she was crying, her face was red and she appeared “pretty traumatized.” He further
stated on direct examination that PFC AW told him she “had been raped over in the
other building.” 3 Sergeant RH, a military policeman (MP), stated he was intoxicated
at the time he met with PFC AW and therefore did not want to “delve too much into”
the allegation by asking who had assaulted her or what had happened. However, he
flagged down a passing on-duty MP, PVT ZS, and instructed him to take PFC AW
back to Vilseck, and to not do anything against her will but allow her to do whatever
she needed to do. Sergeant RH was concerned that taking PFC AW to the MP
station in her current intoxicated state would be counter-productive.

       Private ZS testified at trial and described encountering PFC AW and SGT RH
outside his building around 0345 on the night in question. He stated that PFC AW
was upset and crying and that SGT RH asked him to take PFC AW back to her
barracks in Vilseck, but did not mention receiving additional guidance from SGT
RH. Private ZS further testified that on the trip from Grafenwoehr to Vilseck, “you
could tell something was wrong with [PFC AW],” as she cried and breathed heavily,
but she did not talk about what was bothering her. P rivate ZS dropped PFC AW off
at her barracks and then continued his shift. He next encountered PFC AW later that
morning after she had walked into the Vilseck MP station and repo rted the sexual
assault. Private ZS described PFC AW as still being upset and crying.

        Agents from CID were then contacted and as part of their investigation they
arranged for the collection of AW’s clothing, as well as a physical exam to include
the collection of biological evidence. Ms. DB, a forensic DNA examiner, testified at
trial that the analysis of AW’s cervical swab identified the presence of semen and
that appellant’s DNA matched this sample.

       Appellant called PV2 AP during the merits portion of his case in chief.
Contrary to PFC AW’s testimony, PV2 AP denied that any conversations took place
between her, PFC AW and appellant concerning limitations on sexual activit y that
could take place in her room. She agreed that she and PFC AW kissed and got
“touchy/feely” in the back seat of the car during the d rive from the bar to her room.

        Private AP testified that once back in her room, she and appellant were the
first two into bed and were kissing when PFC AW got into bed and started kissing
PV2 AP. At that point, appellant moved to the end of the bed while the two female s
continued to kiss. According to PV2 AP, PFC AW then initiated vaginal intercourse
with appellant by mounting him. While this transpired , PV2 AP then re-positioned

3
 On cross examination, SGT RH agreed that in a previous statement made to
criminal investigators he had said that PFC AW told him she had been “touched.”




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MOELLERING—ARMY 20130516

herself to facilitate appellant’s ability to perform oral sex on her while having
vaginal sex with PFC AW. After this position, both PV2 AP and PFC AW
performed oral sex on appellant, with PFC AW both initiating this sexual act and
bragging that “this is how you do it” as she performed oral sex on appellant.

       Next, according to PV2 AP, PFC AW laid down on the bed and implored the
appellant to “[f]--- me like a dirty slut.” Appellant then got on top of PFC AW and
had vaginal intercourse with her. Sometime after this a ct, PFC AW and PV2 AP
engaged in oral sex. Then, appellant and PV2 AP agreed to try anal sex for the first
time. While appellant then proceeded to have anal sex with PV2 AP, she performed
oral sex on PFC AW. Private AP admitted to falsely telling CID that she and
appellant were engaged in vaginal sex during this position because she was
embarrassed about admitting she had engaged in anal sex. At trial, PV2 AP testified
that the anal penetration hurt her and she cried and asked appellant to stop.
Appellant stopped and consoled PV2 AP by wrapping her in a blanket and then the
two proceeded into the bathroom together. It was while appellant and PV2 AP were
in the bathroom that PFC AW got dressed and left the room.

       Private AP averred appellant had no oppo rtunity to be alone with PFC AW in
her bedroom during this incident. To the contrary, PV2 AP claimed to have been
present during the entire event. Private AP further stated that at no point did PFC
AW express any kind of reservation about the sexual acti vity that had transpired
between the two women and appellant. Soon after PV2 AP realized PFC AW had
left her room, she sent PFC AW a text message stating that: appellant had sexual
intercourse with PFC AW; PV2 AP had performed oral sex on PFC AW; they were
both drunk; PV2 AP was still a little drunk; and appellant having sexual intercourse
with PFC AW “won’t happen again.” In regards to this latter message, PV2 AP
clarified at trial what she meant by this statement was that she “knew that [PFC AW]
had wanted to have sex with [appellant] and I figured . . . she got away with this
one, [so] she might try again.” In the text message, PV2 AP also asked PFC AW
where she had gone and that she was “Lmao 4 . . . .”

      In response to PV2 AP’s text, PFC AW and PV2 AP engaged in the following
conversation via text messaging:

             PFC AW: I told [you] I didn’t want it to happen before
             he did it … [and] I told him [too]. I don’t know why
             he didn’t [sic]. I told him I was only touching [you].

4
 Merriam-Webster’s online dictionary defines “LMAO” as an abbreviation for
“laughing my ass off.” Merriam-Wesbster, http://www.merriam-
webster.com/dictionary/lmao (last visited 25 June 2015).




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MOELLERING—ARMY 20130516


             PV2 AP: Don’t worry about it. We [were] drunk and [stuff]
             happens [just] as long as I was there. Don’t touch him
             when I’m not around. Where did [you] go anyway?

             PFC AW: No. I didn’t [want to] f--- him! And I went home.
             No, [stuff] like that [doesn’t] happen.

             PV2 AP: Dude, we were drunk. Home as in Vilseck?

             ....

             PV2 AP: I don’t know [what you] did or said to the boys but
             they are all pissed and [blowing] up my phone so [I’m
             going to] tell [them] what happened.

      On cross-examination, government counsel confirmed with PV2 AP that her
testimony was: (1) before sexual activity began in her room, no ground rules had
been established and that she never heard PFC AW express any reservations about
having sex with appellant; and (2) she never heard PFC AW tell appellant to stop
while appellant was having sexual intercourse with PFC AW .

       As part of its impeachment of PV2 AP on these issues, the government
confronted her with a statement appellant made to CID. In regards to whether any
sexual activity ground rules had been previously established, government counsel
offered appellant’s statement wherein he stated that while at the bar :

             [PV2 AP] . . . said [PFC AW] was going back with us tonight.
             I looked at [PV2 AP] and asked if she was okay with it
             and she said yes. I asked [PFC AW] if she was okay with
             it and she said yeah. I said the three of us together
             and [PV2 AP] said yes and [PFC AW] said no, with [PV2 AP] yes,
             but not you and me. I told [PV2 AP] this is not a good idea,
             something’s wrong and she said it was fine, not a big
             deal and that I worry too much.

       When confronted with this statement, PV2 AP agreed that even though her
memory was “crystal clear” on the night in question, she was surprised that
appellant would allege this conversation t ook place because she did not remember it
but offered that she “probably wasn’t paying attention.” Upon further questioning,
PV2 AP remembered that appellant had asked her if it was okay for PFC AW to stay
in her room that night. Private AP further admitted to not mentioning this statement
during appellant’s Article 32, UCMJ, hearing.




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MOELLERING—ARMY 20130516

       Additionally, government counsel questioned PV2 AP concerning appellant’s
statement to CID wherein he stated that while he “was having sex with [ PFC AW]
she told me no, stop.” She again expressed surprise that appellant would allege PFC
AW made that statement because she did not recall PFC AW making it. When asked
to explain this discrepancy, PV2 AP offered that it “[m]ight have been some thing
that I didn’t hear.”

      Pursuant to Military Rule of Evidence 106, appellant introduced his second
statement into evidence. In addition to the two inconsistencies noted above,
appellant described the sexual positions he, PFC AW and PV2 AP engaged in fairly
consistently with PFC AP’s trial testimony, with some discrepancies as noted below .

       In regards to admitting that PFC AW had at one point told him to stop, he
stated he was having vaginal intercourse with PFC AW from behind when she told
him “no, stop” and then he stopped. Private PV2 AP, in her testimony, did not
mention that appellant and PV2 AW had engaged in this particular position or that
PFC AW had ever said “no” or “stop.” It was after this position that appellant
alleged PV2 AP and PFC AW performed oral sex on him, which was consistent with
PV2 AP’s trial testimony, to include statements attributed to PFC AW by PV2 AP.
Pursuant to appellant’s statement to CID, the reason he had initially lied about PFC
AW not telling him “no” or to “stop” was because PFC AW then reinitiated sexual
activity with him and he thought she was just saying no to a particular position and
not to the sexual activity in general. Appellant then stated he and PV2 AP engaged
in anal sex, which resulted in PV2 AP experiencing pain, ending the sexual activity.
Notably, despite consent obviously being at issue during his second interview with
CID, appellant failed to mention that PFC AW had urged him to “f--- her like a dirty
slut,” as alleged by PV2 AP.

       Appellant’s theory at trial was that PFC AW consented to all of the sexual
activity in PV2 AP’s room. In an attempt to offer a motive for why PFC AW would
falsely claim appellant sexually assaulted her, appellant offered a theory that
Specialist Adam W—a soldier PFC AW was having a casual sexual relationship
with, but with whom PFC AW wanted to have a more serious relationship —would
end their relationship if he learned she had consensual sex with appellant . When
asked about this eventuality taking place, PFC AW testified that she “knew
whenever I reported it I was going to lose all of my friends.”

                             LAW AND DISCUSSION

       In accordance with Article 66(c), UCMJ , we review issues of legal and factual
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.



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324, 324-25 (C.M.A. 1987); see also United States v. Humpherys, 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 evidence of record in favor of the prosecution.”
(United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001).

      The test for factual sufficiency is “whether, after weighing the evidence in the
record of trial and making allowances for not having personally observed the
witnesses, [we] are [ourselves] convinced of the accused’s guilt beyond a rea sonable
doubt.” Turner, 25 M.J. at 325.

       Having completed our review of the legal and factual sufficiency of
appellant’s convictions, we begin by affirming appellant’s conviction for adultery.
In reviewing appellant’s convictions for sexual assault and abusive sexual contact,
we are presented with a choice between PV2 AP’s and PFC AW’s description of
what happened in PV2 AP’s room. In evaluating PFC AW’s testimony, we find two
portions corroborated by appellant to be particularly persuasive.

       First, PFC AW claims to have told both appellant and PV2 AP before arriving
at PV2 AP’s room that she would consent to engaging in sexual acts with PV2 AP
but not with appellant. Appellant, in his second statement to CID , corroborated
PFC AW’s testimony by admitting that he heard PFC AW make a statement to this
effect before arriving at PV2 AP’s. In addition, appellant’s response to CID as to
why he had initially lied about this conversation, that he “didn’t think about it” and
“didn’t think it was that big of a thing” rings hollow and indicates a consciousness
of guilt. Contrary to appellant’s assertion, while not definitive, we find PFC AW’s
statement to appellant and PV2 AP that she was only consenting to engage in sexual
activity with PV2 AP and not appellant to be persuasive as to whether PFC AW
consented to sexual activity with appellant. See United States v. Prather, 69 M.J.
338, 343 (C.A.A.F. 2011).

       Second, appellant corroborated PFC AW’s claim that she told appellant to
stop having sexual intercourse with her while in PV2 AP’s room. Again, when
confronted with his first statement wherein he failed to acknowledge that PFC AW
had told him to stop, appellant attempted to minimize this falsehood by interpreting
PFC AW’s “stop” to mean she merely wanted to change sexual positions. Because
PFC AW claims she told appellant to stop touching her at least three times while in
PV2 AP’s room, once when appellant placed his finger in her vagina and twice when
appellant put his penis in her vagina, appellant’s account does not completely mesh
with PFC AW’s. However, appellant’s corroboration that PFC AW did go over
ground rules with him and PV2 AP prior to sexual activity commencing, combined
with his agreement that PV2 AW said stop at least once while in PV2 AP’s room,
casts doubt on the veracity of PV2 AP’s testimony.




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       Private AP, although claiming to have a “crystal clear” memory concerning
the night in question, alleged: (1) not hearing PFC AW’s discussion of the ground
rules; and (2) also not recalling PFC AW ever said no or stop to any sexual activity
in PV2 AP’s room. As to the former claim, appellant’s second statement to CID
casts even more doubt on the veracity of PV2 AP’s testimony. Specifically,
appellant alleged PV2 AP participated in this ground rules conversation, wherein
PV2 AP said she was fine with having sex with both appellant and PFC AW and
tried to allay appellant’s concerns by telling him it was not a big deal and that he
worried too much. These two major inconsistencies cause us to review PV2 AP’s
testimony that PFC AW consented to all sexual acts performed with a ppellant with a
jaundiced eye.

        Further, PV2 AP’s portrayal of PFC AW as not only consenting to all sexual
acts that transpired in AP’s room, but acting as an aggressor, instructor, and
cheerleader is difficult to reconcile with the almost inconsolable and sobbin g person
that immediately emerged once she departed PV2 AP’s room. The text messages
sent between PV2 AP and PFC AW soon after the incident demonstrate PFC AW’s
lack of consent to sexual acts performed on her by appellant. The texts also served
to put PV2 AP on notice that PFC AW was upset by the incident, was not prepared
to attribute appellant’s actions to a night of drunken revelry, but rather was prepared
to allege she was sexually assaulted. In total, we find PFC AW’s account alleging
sexual assault to ring truer than PV2 AP’s explicit tale of sexual adventure.

       However, we are not ourselves convinced be yond a reasonable doubt that
appellant did not hold, as a result of mistake an incorrect but reasonable belief, that
PFC AW had consented to the abusive sexual contact complained of, specifically
breast touching.

       Looking at the scenario broadly, as described by PFC AW, that appellant, PV2
AP and PFC AW all agreed to spend the night in PV2 AP’s room. All three were
under the impression that sexual activity between appellant and PV2 AP was going
to occur and that PFC AW was going to be present during this encounter. In
addition, based on words and deeds, all three were under the impression that PV2 AP
and PFC AW were going to engage in some amount of unspecified sexual activity.
Into this mix of three people agreeing to engage in sexual activity in each other’s
presence, PFC AW injected her desire to limit her sexual participation to interaction
with PV2 AP.

      Although in some scenarios this prior notice of limited participation in three-
person sexual acts may prove sufficient to sustain an abusive sexual contact
conviction, here we find this notice lacking based on PFC AW’s subsequent actions.
Specifically, PFC AW’s decision to remain nude in the same bed with appellant and
PV2 AP while appellant and PV2 AP engaged in vaginal intercourse could well have
led appellant to reasonably conclude, albeit mistakenly, that PFC AW was interested



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in some sexual activity that included appellant. We further note the prosecution has
the burden of proving beyond a reasonable doubt that mistake of fact as to consent
did not exist in appellant’s case. We find the government failed to meet this heavy
burden and appellant’s conviction for abusive sexual contact is factually
insufficient.

       However, in affirming appellant’s conviction for sexual assault, we find the
mistake of fact defense to be insufficient based on PFC AW’s responses to
appellant’s actions. Specifically, although we have applied the mistake of fact
defense to excuse appellant’s first sexual touching involving PFC AW, we will not
extend it further because: (1) PFC AW brushed appellant’s hand away when he
grabbed her breast; (2) PFC AW told appellant to stop when he penetrated her vagina
with his finger and (3) PFC AW had to tell appellant two distinct times to stop
having sexual intercourse with her before he complied. In sum, any mistake of fact
that appellant reasonably possessed as to PFC AW’s desire to participate in sexual
acts with him when he first touched her breast ceased to exist before he placed his
penis into her vagina, and remained deficient after he did so.

                                   CONCLUSION

       On consideration of the entire record, the finding of guilty to Specification 2,
Charge I is set aside and dismissed. The remaining findings of guilty are
AFFIRMED. We are able to reassess the sentence on the basis of the error noted and
do so after conducting a thorough analysis of the tot ality of circumstances presented
by appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and
United States v. Sales, 22 M.J. 305 (C.M.A. 1986). In evalu ating the Winckelmann
factors, we find no dramatic change in the penalty landscape that might cause us
pause in reassessing appellant’s sentence. Additionally, the nature of the remaining
offenses still captures the gravamen of the original offenses and t he circumstances
surrounding appellant’s conduct. Finally, based on our experience, 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 re cord and
appellant’s course of conduct, the panel would have imposed a sentence of at least
that which was adjudged.

       Reassessing the sentence based on the noted error and the remaining findings
of guilty, we AFFIRM the sentence as adjudged. We find this reassessed sentence is
not only purged of any error but is also appropriate. All rights, privileges, and
property, of which appellant has been deprived by virtue of that portion of the
findings set aside by our decision, are ordered restored.

      Judge TELLITOCCI concurs.




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HAIGHT, Judge, concurring in part and dissenting in part:

       I concur with the majority’s affirmance of appellant’s adultery conviction. I
also concur with setting aside the finding of guilty to abusive sexual contact for
touching Private First Class (PFC) AW’s breast. However, I disagree with the
majority regarding appellant’s sexual assault conviction as I would set aside that
finding of guilty as well.

      The evidence in this case does not reveal a rape or sexual ass ault; it reveals a
ménage a trois. In the bluntest of terms, three people voluntarily entered into a
hedonistic, self-indulgent experience and, as a result, the legal system was called
upon to essentially officiate a bacchanalian debauch.

       Be that as it may, appellant was not charged with or convicted of an indecent
act, open and notorious sexual activity, or committing a sexual act on one too
intoxicated to consent. Instead, he stands convicted of having sex with PFC AW by
causing her bodily harm. That conviction is insuf ficient and I would not affirm it.
See UCMJ art. 66.

       Appellant and PFC AW were friends and went to a bar in order to “hang out,”
drink, and wait for Private E2 (PV2) AP, who was PFC AW’s best friend and
appellant’s mistress. Despite being married to ano ther, appellant had sex with PV2
AP two to three times a week and knew he and PV2 AP would be returning to her
room that night to have sex. Private AP finished her military police duty shift, went
to the bar, and they all danced and drank alcohol. Privat e First Class AW and PV2
AP agreed that appellant would drive all of them to PV2 AP’s barracks room and
that all of them would spend the night there. Then, as appellant drove to the
barracks, PFC AW and PV2 AP kissed, “made out,” and touched each other in the
back seat.

       Upon arriving at PV2 AP’s barracks room, they all got undressed in front of
each other and increased sexual activity began. According to PFC AW, the two
females engaged in mutual cunnilingus as appellant observed until he joined them
and started having sexual intercourse with PV2 AP as PFC AW remained next to
them on the bed, observing them, and watching television.

       Appellant’s and PV2 AP’s versions of events are somewhat different from
PFC AW’s account in that they both relate that appel lant and PV2 AP were initially
kissing or having sex on the bed and it was PFC AW who then joined in.
Furthermore, they both describe PFC AW as then getting on top of appellant,
straddling him, and having vaginal intercourse with him as he simultaneously
performed oral sex on PV2 AP, as she straddled his head while the two females
faced each other. As the three moved through various sexual positions and
combinations, at one point, PFC AW and PV2 AP simultaneously performed oral sex



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on appellant, with PFC AW tutoring PV2 AP on that particular sex act. According
to appellant and PV2 AP, this sexual escapade culminated with appellant having anal
intercourse with PV2 AP from behind as she simultaneously performed oral sex on
PFC AW. This act caused PV2 AP pain so they stopped, and PV2 AP and appellant
left PFC AW on the bed and went into the adjacent bathroom. This is when PFC AW
got dressed, left the room, went next door to her ex -boyfriend’s room, and first
reported that she had been “touched” by appellant and that that she had not wanted
him to do so.

       Contrary to appellant and PV2 AP’s view that all sexual activity that occurred
between the three was either consented to or initiated by PFC AW, PFC AW claimed
that some of appellant’s acts, performed in the midst of this sexual bedlam, were not
consented to by her. She testified that after she and PV2 AP performed oral sex on
each other in front of appellant, appellant and PV2 AP engaged in sexual intercourse
as she lay next to them. As appellant was havin g sex with PV2 AP, he reached out
and “grabbed” PFC AW’s breast without her express prior permission. According to
PFC AW, she pushed his hand away and he continued to have sex with PV2 AP.
Private First Class AW did not get up from the bed, say anything , or leave the room. 5
While still having sex with PV2 AP, appellant then inserted his finger into PFC
AW’s vagina. Private First Class AW testified that after appellant had inserted his
finger, she told him to stop as it was uncomfortable and he did stop . After this
particular touching, PFC AW and PV2 AP re-engaged in various sexual positions
and mutual oral sex, all occurring concurrently with appellant’s sexual activity with
PV2 AP. According to PFC AW, PV2 AP eventually went to the bathroom a few
feet away with the door possibly remaining open, leaving appellant and her on the
bed. The direct examination of PFC AW regarding the sexual assault was the
following:

             Q. Okay. What is the next thing that you do remember
             after [PV2 AP] went to the bathroom?

             A. [Appellant] getting on top of me.

             Q. Where were you laying at this point?

             A. I was up against the wall?

             Q. What happened after he got on top of you?

5
 Private First Class AW testified that she did not get off the bed while appellant and
PV2 AP engaged in sexual activity because she found herself between them and the
wall and “[t]here really wasn’t a way for me to get off the bed.”




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            A. All I remember is him sticking it inside of me and
            then he went to the bathroom with [PV2 AP].

            ....

            Q. Break that down for us. How did that happen?

            A. Like, I don’t remember how he got on top of me. All
            I remember is him being on top of me, sticking it in me.

            ....

            Q. How did you let him know that this is not acceptable?

            A. I told him to stop.

            Q. How forcibly did you tell him to stop?

            A. I told him a couple of times to stop.

            ....

            Q. On the first time, did he stop?

            A. No, ma’am.

            Q. So, after how many times did he eventually stop?

            A. Two times, ma’am.

            ....

            Q. How long – and correction, let me back up. Can you
            remember details about how he eventually got off of
            you?

            A. No, ma’am.

      On cross-examination, PFC AW did not deny performing oral sex on appellant
or “doing anything” with him that night. Rather, she conceded there is much that
occurred that night that she does not remember as she was “pretty drunk.”




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       In affirming appellant’s sexual assault conviction, the majority determines
that PV2 AP’s account lacks credibility for two reasons. First, as opposed to PFC
AW, she does not recall the laying down of any strict and rigid so -called “ground
rules” for the three’s upcoming night of sexual adventure. Second, she does not
remember PFC AW ever saying “stop” to appellant, although he admits in one of his
statements that PFC AW did say “stop” at one point with respect to a particular
sexual position. I do not parse the three different memories of that night’s string of
sexual activity with as fine a blade as the majority does.

       The majority attributes an ironclad quality to the supposed “ground rules” that
defies any practical expectation or real -world application to an arena as fluctuating
as human sexual interaction. Private First Class AW’s testimony regarding the
“ground rules” was, “Me and [AP] were talking and she said that I could stay in her
spare room and use the cover that I have at her room, because [appellant] was going
to be staying with her that night.” She also said that she remembers making it clear
that appellant was not to touch her. It was not so “clear” to appellant and PV2 AP.

       In fact, PFC AW herself contradicts any notion that the planned sexual
activity was clear-cut and predetermined by agreeing on cross -examination that “So,
more or less there wasn’t a formal plan” and that the escalation of sexual activity
was “just something that naturally came about.” If anybody violated the pre -set
“ground rules,” it was PFC AW when she did not retire to the spare room but instead
voluntarily interjected herself into another couple’s pr edetermined night of sex. On
the stand, PV2 AP agreed with PFC AW that all that happened was not the result of
any “formal plan to fool around,” but all “just happened naturally.” Furthermore,
PV2 AP did not recall any formal discussions as to who would do what to whom or
who was precluded from doing what to another. Appellant, in a sworn statement,
acknowledged there was some nebulous conversation in which he expressed some
misgivings about all three of them going back to PV2 AP’s room where he knew
sexual activity would occur. Private AP assuaged his concern by stating, “We’ll go
about our business and if it happens it happens and if it doesn’t it doesn’t.” As it
turns out, “it” happened.

       Regardless of how firm the “ground rules” PFC AW may have thou ght them to
be, they did not survive the shifting sexual events of that night. If the law
recognizes that prior consent can be withdrawn, then it surely must also recognize
that prior nonconsent can change over time and transform into consent, given fluid
circumstances and the “heat of the moment.” See United States v. Prather, 69 M.J.
338, 343 (C.A.A.F. 2011).

       The majority seems to fault PV2 AP for not being able to recall that PFC AW
said “stop” at one point. They view this lack of memory as diminishi ng her
credibility because even the appellant admitted in his second statement that PFC AW
uttered that word. I, on the other hand, find PV2 AP’s insistence that she never



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MOELLERING—ARMY 20130516

heard or saw anything that would indicate a lack of consent on PFC AW’s part as
credible. If PFC AW’s account is accurate, then PV2 AP was not even in the same
room and had removed herself from the sexual activity when PFC AW said “stop.”
If appellant’s account is accurate, then PV2 AP was in the throes of sexual pleasure
when PFC AW said “stop,” not to cease sexual activity, but to rearrange sexual
positions. Either way, I find appellant’s and PV2 AP’s accounts far more credible
than PFC AW’s story that she could not remove herself from the bed and the sexual
scenario in which she found herself, not due to fear, threats, intimidation, physical
restraint, or any show of force, but because she did not want to inconvenience her
two friends having sex beside her by getting out from between them and the wall.

       The majority has difficulty reconciling the idea that PFC AW consented to all
of that night’s sexual activity with the “almost inconsolable and sobbing person that
immediately emerged once she departed PV2 AP’s room.” 6 I hasten to point out that
it was not the defense’s burden to expl ain why PFC AW behaved after the fact as she
did, but it was the government’s job to prove beyond a reasonable doubt not only
that PFC AW did not consent to the sexual act but also that appellant did not make a
reasonable mistake of fact that she consented . In my opinion, the government failed
to meet this burden and, therefore, I respectfully disagree with the portion of the
majority’s decision affirming appellant’s conviction for aggravated sexual assault .

                                       FOR THE
                                       FOR THE COURT:
                                               COURT:




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




6
  Although the defense was under no burden to show why PFC AW claimed she did
not consent to sex with appellant, it was made clear at trial that PFC AW, at the time
of the incident, was in a physical relationship with one of appellant’s friends,
Specialist Adam W, and wanted that relationship not only to continue but to evolve
into one more serious. Specialist Adam W testified that he had specifically
informed PFC AW that “if she were to sleep with [appellant], that our physical
relationship would end and I would cease that contact with her.”




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