UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                            TOZZI, CAMPANELLA, and CELTNIEKS
                                   Appellate Military Judges

                               UNITED STATES, Appellee
                                            v.
                            Sergeant MARVIN R. MULLINGS
                              United States Army, Appellant

                                       ARMY 20140079

                            Headquarters, Fort Stewart
              John T. Rothwell and William L. Deneke, Military Judges
                  Colonel Francisco A. Vila, Staff Judge Advocate


For Appellant: Lieutenant Colonel Jonathan Potter, JA; Major Christopher D.
Coleman, JA; Captain Amanda R. McNeil Williams, JA (reply brief); Colonel Kevin
Boyle, JA; Major Amy E. Nieman, JA; Captain Robert H. Meek, III, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major Steven J. Collins, JA; Captain
Tara E. O’Brien, JA (on brief).


                                      14 January 2016

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                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Judge:

       An enlisted panel sitting as a general court-martial convicted appellant,
contrary to his pleas, of two specifications of abusive sexual contact and one
specification of soliciting prostitution in violation of Articles 120 and 134, Uniform
Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 920 and 934 (2012). The
panel sentenced appellant to a bad-conduct discharge and confinement for six
months. The convening authority approved the sentence as adjudged.

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises two assignments of error, both requiring discussion and relief. We find the
matters raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), however, to be meritless.
  MULLINGS —ARMY 20140079

                                  BACKGROUND

       In preparation for a unit deployment, appellant was temporarily staying at
the on-post hotel at Fort Stewart. Mrs. S.R.C. was part of the cleaning staff at the
hotel and was designated to clean appellant’s hotel room. On the day in question,
appellant was inside his hotel room while Mrs. S.R.C. was cleaning the bathroom.

       As Mrs. S.R.C. knelt over the bathtub to wipe it down, appellant walked into
the bathroom and knelt behind Mrs. S.R.C., pinning her against the bathtub with his
body while grabbing the rim of the bathtub. Mrs. S.R.C. protested - telling appellant
to get off her - but he did not. Instead, appellant pressed his penis into her buttocks
and simultaneously reached around the front of Mrs. S.R.C. moving his right hand
between her right armpit and the right side of her torso to the front of her body - and
held a stack of money in front of Mrs. S.R.C.’s face stating, “This is for you.”
When appellant reached his hand around Mrs. S.R.C.’s body to show her the money,
he “grazed” her right breast with his arm. Mrs. S.R.C. again told appellant to get off
her. Appellant said “okay,” got up, and left the bathroom. Soon after, Mrs. S.R.C.
ran downstairs and told her supervisor what happened. Appellant was apprehended
shortly thereafter.

       Appellant was found guilty of two specifications of abusive sexual contact in
violation of Article 120, UCMJ. The first specification, Specification 1 of Charge I,
alleged sexual contact by appellant when he pressed his penis against Mrs. S.R.C.’s
buttocks and caused her bodily harm by “leaning against her back.” The other
specification, Specification 2 of Charge I, alleged:

             [Appellant], U.S. Army, did, at or near Fort Stewart,
             Georgia, on or about 6 May 2013, commit sexual
             contact upon [Mrs. S.R.C.], to wit: touching the
             breast of [Mrs. S.R.C.] with his hand, by causing
             bodily harm upon her, to wit: reaching his forearm
             around her torso.

      Appellant contends on appeal that Specification 2 of Charge I
should not stand. We agree for several reasons.

       Appellant was also found guilty of one specification of soliciting prostitution
in violation of Article 134, UCMJ. The Specification of Charge II alleged:

             [Appellant], U.S. Army, did, at or near Fort Stewart,
             Georgia, on or about 6 May 2013, wrongfully solicit
             [Mrs. S.R.C.] to commit the offense of prostitution,
             by offering her money in exchange for sexual
             intercourse, and that said conduct was to the

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             prejudice of good order and discipline in the armed
             forces and was of a nature to bring discredit upon
             the armed forces.

       Appellant asserts the government failed to prove appellant’s wrongful
solicitation of prostitution was prejudicial to good order and discipline. We agree.

                             LAW AND DISCUSSION

            Legal and Factual Sufficiency, Specification 2 of Charge I

       Article 66(c), UCMJ, establishes our statutory duty to review a record of trial
for legal and factual sufficiency de novo. United States v. Walters, 58 M.J. 391, 395
(C.A.A.F. 2003). Under Article 66(c), we may affirm only those findings of guilty
that we find correct in law and fact and determine, based on the entire record, should
be affirmed. Id. The test for legal sufficiency of the evidence is whether, viewing
the evidence in a light most favorable to the government, a fact-finder could
rationally have found all the essential elements of an offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 3019 (1979); United States v. Blocker, 32
M.J. 281, 284-85 (C.M.A.1991). In weighing factual sufficiency, we apply “neither
a presumption of innocence nor a presumption of guilt.” United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). "[A]fter weighing the evidence in
the record of trial and making allowances for not having personally observed the
witnesses, [we must be] convinced of the [appellant's] guilt beyond a reasonable
doubt.” United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). In resolving
questions of legal sufficiency, this court is “bound to draw every reasonable
inference from the evidence of record in favor of the prosecution.” United States v.
Craion, 64 M.J. 531, 534.

       To sustain a conviction for Specification 2 of Charge I, abusive sexual
contact, the government must prove beyond a reasonable doubt that appellant caused
Mrs. S.R.C. bodily harm as it was charged – specifically “reaching his forearm
around [Mrs. S.R.C.’s] body.” The military judge defined ‘bodily harm’ as any
offensive touching of another, however, slight, including any nonconsensual sexual
act or nonconsensual sexual contact.

       An abusive sexual contact offense occurs when “[a]ny person . . . 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.”
Manual for Courts-Martial, United States (2008 ed.)[hereinafter MCM], pt. IV, ¶
45(d). To prove "sexual contact," the government was required to show appellant
touched Mrs. S.R.C.’s breast with the “intent to abuse, humiliate, or degrade any
person.” See MCM, pt. IV, ¶ 41.(g)(2) (emphasis added). Wrongful sexual contact
is a specific-intent crime.

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    MULLINGS —ARMY 20140079


       While appellant’s acts are repugnant, the evidence is insufficient to prove
appellant possessed the specific intent to abuse, humiliate, or degrade any person
when he “grazed” Mrs. S.R.C.’s breast with his hand or arm as he reached around
her. It appears the grazing was coincidental, if not accidental, to his act of reaching
around her body for the purpose of showing her the cash.

       Even if we were to find appellant possessed specific intent, we are also at a
loss as to how appellant’s “reaching” rather than the actual sexual contact itself
constitutes bodily harm to Mrs. S.R.C.. We find government’s argument that the
touching of the breast is implied in the reaching unpersuasive. *

          The Conjunctive Terminal Element, the Specification of Charge II

       The government witnesses testified about the command’s response to
appellant’s misconduct, including that appellant’s unit was pending a deployment
and processing his misconduct was a distractor as the unit prepared for their
rotation. The witnesses also described unit personnel shortages and how losing
appellant caused hardship on the unit. The witnesses, however, did not describe how
the underlying misconduct – namely solicitation of prostitution – created a direct
effect on good order and discipline. See MCM, pt. IV, ¶ 60.c(2)(a) (‘“To the
prejudice of good order and discipline’ refers only to acts directly prejudicial to
good order and discipline and not to acts which are prejudicial only in a remote or
indirect sense”).

       That said, the government adequately established the conduct was service
discrediting. We will, therefore, dismiss the language “was to the prejudice of good
order and discipline and” from the Specification and affirm the remainder of it.

                                  CONCLUSION

       The finding of guilty of Specification 2 of Charge I is set aside and that
Specification is DISMISSED. The court affirms only so much of the finding of
guilty of the Specification of Charge II, as finds that:

             [Appellant], U.S. Army, did, at or near Fort Stewart,
             Georgia, on or about 6 May 2013, wrongfully solicit
             [Mrs. S.R.C.] to commit the offense of prostitution, by
             offering her money in exchange for sexual intercourse,


*
  Because the evidence falls short regarding specific intent, we do not reach the
issue of unreasonable multiplication of charges. We also make no judgment on the
issue of non-fatal variance argued by the government.


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  MULLINGS —ARMY 20140079

             and that said conduct was of a nature to bring discredit
             upon the armed forces.

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. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013). In
evaluating the Winckelmann factors, we first find no change in the penalty landscape
that might cause us pause in reassessing appellant’s sentence. The military judge
merged the two Article 120 offenses for sentencing purposes. While appellant was
tried and sentenced by members, the nature of the remaining offenses still capture
the gravamen of the original offenses and the circumstances surrounding appellant’s
conduct. 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 record and appellant’s course of conduct,
members would have imposed a sentence of at least that which was adjudged. See
United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986).

      Reassessing the sentence based on the noted errors and entire record, 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.

      Senior Judge TOZZI and Judge CELTNIEKS concur.

                                       FOR THE COURT:
                                       FOR THE COURT:



                                       JOHN P. TAITT
                                       JOHN
                                       Deputy P. TAITT
                                              Clerk of Court
                                       Acting Clerk of Court




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