         This opinion is subject to revision before publication


           UNITED STATES COURT OF APPEALS
                    FOR THE    ARMED FORCES
                           _______________

                         UNITED STATES
                             Appellee
                                  v.
                  Mark J. ROSARIO, Sergeant
                  U.S. Marine Corps, Appellant
                            No. 16-0424
                      Crim. App. No. 201500251
       Argued December 6, 2016—Decided February 22, 2017
                 Military Judge: Michael D. Libretto
   For Appellant: Lieutenant Doug Ottenwess, JAGC, USN
   (argued).
   For Appellee: Lieutenant Robert J. Miller, JAGC, USN (ar-
   gued); Captain Matthew M. Harris, USMC, and Brian K.
   Keller, Esq. (on brief); Colonel Valerie C. Danyluk, USMC,
   Major Suzanne Dempsey, USMC, and Lieutenant James M.
   Belforti, JAGC, USN.
   Judge SPARKS delivered the opinion of the Court, in
   which Chief Judge ERDMANN, and Judges STUCKY,
   RYAN, and OHLSON, joined.
                     _______________

   Judge SPARKS delivered the opinion of the Court.
    Contrary to his pleas, Appellant was convicted by a spe-
cial court-martial with members of one specification of vio-
lating a general order (Marine Corps Order 1000.9A) by sex-
ually harassing Lance Corporal (LCpl) B.A. on divers
occasions, in violation of Article 92, Uniform Code of Mili-
tary Justice (UCMJ), 10 U.S.C. § 892 (2012). 1 The members


   1   Marine Corps Order 1000.9A defines sexual harassment as:
         (1) [A] form of discrimination that involves unwel-
         come sexual advances, requests for sexual favors,
         and other verbal or physical conduct of a sexual na-
         ture when:
            (a) Submission to such conduct is made either
            explicitly or implicitly a term or condition of a
            person’s job, pay, or career, or
            United States v. Rosario, No. 16-0424/MC
                      Opinion of the Court

acquitted Appellant of two specifications of abusive sexual
contact in violation of Article 120, UCMJ, 10 U.S.C. § 920
(2012), and one specification of assault consummated by a
battery in violation of Article 128, UCMJ, 10 U.S.C. § 928
(2012). Appellant was sentenced to a bad-conduct discharge
and reduction to grade E-1. The sentence was approved and
the United States Navy-Marine Corps Court of Criminal
Appeals affirmed the findings and sentence. Appellant filed
a petition with this Court and we granted review on the fol-
lowing issue:
       Whether the lower court erred in conducting its Ar-
       ticle 66(c), UCMJ, review by finding as fact allega-
       tions that supported charges of which Appellant
       was acquitted to affirm the findings and sentence.
We conclude that, in accordance with Article 66(c), UCMJ,
the lower court properly considered evidence relevant to the
specification of which Appellant was convicted in conducting
its factual sufficiency review. We therefore affirm the deci-
sion of the Navy-Marine Corps Court of Criminal Appeals.
                          Background
    Appellant served as platoon sergeant for LCpl B.A. be-
ginning in September 2013. Over the following months, LCpl
B.A. alleged that Appellant made numerous inappropriate
workplace comments to her including, “te quiero” (Spanish
for “I want you”), “you’re too pretty to be a Marine,” and “I
really missed your face . . . I missed you, having you
around.” LCpl B.A. responded by expressing her disapproval
of these comments and attempting to turn conversation to
more professional matters. When LCpl B.A. returned from
taking Thanksgiving leave to visit her husband, Appellant
asked her how many times she and her husband had sex,


          (b) Submission to or rejection of such conduct by
          a person is used as a basis for career or em-
          ployment decisions affecting that person, or
          (c) Such conduct has the purpose or effect of un-
          reasonably interfering with an individual’s
          work performance or creates an intimidating,
          hostile, offensive working environment . . . .
Dep’t of the Navy, Commandant of the Marine Corps, Ma-
rine Corps Order 1000.9A, Sexual Harassment para. 4.c.(1)
(May 30, 2006).




                                2
           United States v. Rosario, No. 16-0424/MC
                     Opinion of the Court

and he later joked that he was going to keep the spare key
her houseguest had left with him “for when [he was going to]
come over.”
    LCpl B.A. also testified at trial regarding nonverbal-
advances, including Appellant placing his hand over hers
and kissing her cheek while they worked on a refrigeration
unit and on another occasion placing his hand on her neck
and sticking his tongue in her ear. When LCpl B.A. con-
fronted Appellant about his behavior after the second physi-
cal incident, in January, 2014, he told her that he had feel-
ings for her and that “people do this all of the time in the
Marine Corps.” At trial, the Government characterized Ap-
pellant’s behavior towards LCpl B.A. as progressing from
inappropriate comments to physical contact. The military
judge defined sexual harassment to the members as “a form
of discrimination that involves unwelcome sexual advances,
requests for sexual favors, and other verbal or physical con-
duct of a sexual nature.”
   Appellant was convicted of one specification of sexual
harassment, occurring on divers occasions. The members ac-
quitted Appellant of two incidents of abusive sexual contact,
based on Appellant’s touching LCpl B.A.’s cheek with his
mouth and touching her ear with his tongue; and acquitted
him of one specification of assault consummated by battery
based on Appellant’s touching LCpl B.A.’s hand with his
own.
    Appellant raised several assignments of error before the
Navy-Marine Corps Court of Criminal Appeals including un-
constitutional vagueness of the Marine Corps’s sexual har-
assment policy and a challenge to the legal and factual suffi-
ciency of his convictions. United States v. Rosario, No.
NMCCA 201500251, 2016 CCA LEXIS 32, at *1, 2015 WL
9942096, at *1 (N-M. Ct. Crim. App. Feb. 27, 2015). Appel-
lant argued that, in reviewing the legal and factual suffi-
ciency, the lower court could not consider evidence of physi-
cal contact because the court members had acquitted him of
the physical contact offenses. 2016 CCA LEXIS 32, at *4-5,
2015 WL 9942096, at *2-3. In the section of its opinion con-
taining the background facts of the case, the lower court in-
cluded the nonverbal advances that formed the basis for the
abusive sexual contact and assault consummated by battery
charges. 2016 CCA LEXIS 32, at *3, 2015 WL 9942096, at
*1. Then, in rejecting Appellant’s vagueness challenge, the
lower court stated that “when the same evidence is offered


                              3
            United States v. Rosario, No. 16-0424/MC
                      Opinion of the Court

in support of two separately charged offenses, as the physi-
cal encounters were here,” the court was entitled to consider
the facts that formed both the basis for the abusive sexual
contact and assault consummated by battery charges and
the sexual harassment charge. 2016 CCA LEXIS 32, at *6,
2015 WL 9942096, at *2. In making its legal and factual suf-
ficiency determination, the lower court stated:
       LCpl B.A.’s testimony that the appellant made un-
       wanted sexual advances—touching her hand and
       kissing her cheek during the October 2013 incident,
       touching her neck and sticking his tongue in her
       ear during the January 2014 incident, and making
       numerous comments about his attraction to and
       desire for her throughout the course of several
       months—also clearly conveyed that she felt har-
       assed.
2016 CCA LEXIS 32, at *8-9, 2015 WL 9942096, at *3.
                           Discussion
    The question presented is whether the lower court erred
by considering the factual allegations supporting the offens-
es of which Appellant was acquitted to affirm the finding of
guilt on the Article 92, UCMJ, offense. Article 66, UCMJ,
sets out the role and responsibilities of the Courts of Crimi-
nal Appeals. It states in relevant part that:
       (c) In a case referred to it, the Court of Criminal
       Appeals may act only with respect to the findings
       and sentence as approved by the convening author-
       ity. It may affirm only such findings of guilty and
       the sentence or such part or amount of the sen-
       tence, as it finds correct in law and fact and deter-
       mines, on the basis of the entire record, should be
       approved. In considering the record, it may weigh
       the evidence, judge the credibility of witnesses, and
       determine controverted questions of fact, recogniz-
       ing that the trial court saw and heard the witness-
       es.
Article 66, UCMJ. In essence, in contrast to most civilian
appellate courts, the Courts of Criminal Appeals have a
statutory mandate to “conduct a de novo review of both the
legal and factual sufficiency of a conviction.” United States v.
Walters, 58 M.J. 391, 395 (C.A.A.F. 2003). “The test for legal
sufficiency is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime be-



                                4
            United States v. Rosario, No. 16-0424/MC
                      Opinion of the Court

yond a reasonable doubt.” United States v. Gutierrez, 73 M.J.
172, 175 (C.A.A.F. 2014) (quoting United States v. Bennitt,
72 M.J. 266, 268 (C.A.A.F. 2013)). The appellate question for
this legal sufficiency test is whether “a reasonable factfinder
reading the evidence one way could have found all the ele-
ments of the offense beyond a reasonable doubt.” Id. (quot-
ing United States v. Oliver, 70 M.J. 64, 68 (C.A.A.F. 2011)).
The test for a factual sufficiency review by the lower courts
is “whether, after weighing the evidence in the record of trial
and making allowances for not having personally observed
the witnesses, the members of the service court are them-
selves convinced of appellant's guilt beyond a reasonable
doubt.” Oliver, 70 M.J. at 68.
    This Court has held that a military court of criminal ap-
peals, in the course of its review process, cannot find as fact
any allegations of which the accused was found not guilty at
trial. “The CCA . . . cannot find as fact any allegation in a
specification for which the fact-finder below has found the
accused not guilty.” United States v. Bennitt, 74 M.J. at 129
(quoting Walters, 58 M.J. at 395); see also United States v.
Smith, 39 M.J. 448, 451-52 (C.M.A. 1994) (overruled on oth-
er grounds).
    However, in United States v. Gutierrez, this Court de-
termined that the members are permitted to independently
consider evidence supporting a charge of which an appellant
is acquitted while deliberating on other charges. 73 M.J. at
176. In Gutierrez, this Court concluded that the members
could consider evidence contributing to a rape charge of
which the accused was acquitted in convicting him of stalk-
ing, given that the events surrounding the alleged rape were
also part of a course of conduct that contributed to the stalk-
ing charge. Id. Similarly, a reviewing court may consider
facts underlying an acquitted charge in considering whether
the facts support a separate charge.
       Based on the above case law, we hold as follows:
When the same evidence is offered at trial to support two
different offenses, a Court of Criminal Appeals is not neces-
sarily precluded from considering the evidence that was in-
troduced in support of the charge for which the appellant
was acquitted when conducting its Article 66(c), UCMJ, le-
gal and factual sufficiency review of the charge for which the
appellant was convicted. Defendants are generally acquitted
of offenses, not of specific facts, and thus to the extent facts




                               5
            United States v. Rosario, No. 16-0424/MC
                      Opinion of the Court

form the basis for other offenses, they remain permissible
for appellate review.
    In this case, the lower court cited Dunn v. United States,
284 U.S. 390 (1932), and United States v. Jackson, 7 C.M.A.
67, 21 C.M.R. 193 (1956), in support of its conclusion that
the evidence supporting the abusive sexual contact and as-
sault and battery charges could also be considered in as-
sessing the sexual harassment charge. Both these cases in-
volve inconsistent verdicts. Though we agree with the lower
court’s conclusion that the facts supporting the acquitted of-
fenses can be considered, we do not see this as an incon-
sistent verdicts case. The evidence supports no obvious in-
consistency in Appellant’s conviction of sexual harassment
and his acquittal of the more serious offenses of abusive
sexual contact and assault consummated by a battery.
Though there may have been overlap in the facts the mem-
bers considered, the elements were different and we have no
indication to what extent – if at all – the members factored
the sexual contact that formed the basis for the acquitted
charges into convicting Appellant of sexual harassment. The
fact pattern here does not present the clear inconsistency
raised in a case like United States v. Powell, where the ac-
cused was acquitted on charges of conspiracy to possess and
possession of cocaine, but convicted of using a telephone to
facilitate those offenses. 469 U.S. 57, 61, (1984).
    Appellant cites United States v. Smith as support for his
challenge to the lower court’s fact-finding ability. In Smith,
the military judge excepted specific language in returning
his finding of guilty, and the lower court subsequently relied
upon that excepted language to affirm the findings. 39 M.J.
at 449. This Court concluded that the lower court erroneous-
ly made findings of fact which were in direct conflict with
the specific factual allegations excepted by the military
judge. Id. The “direct conflict” language in Smith provides a
useful dividing line between what the lower court is entitled
to consider and what it should not. In the present case, un-
like in Smith, the lower court did not consider any allega-
tions explicitly excepted by the trier of fact so there is no di-
rect conflict.
    Appellant also argues that the lower court’s findings vio-
late the double jeopardy clause because, given their unique
fact-finding powers, the lower court in essence convicted Ap-
pellant based on facts of which he had been acquitted at the
trial court level. We have stated that “[d]ouble jeopardy


                               6
            United States v. Rosario, No. 16-0424/MC
                      Opinion of the Court

principles prohibit a reviewing court from rehearing any in-
cidents for which the accused was found not guilty.” United
States v. Wilson, 67 M.J. 423, 428 (C.A.A.F. 2009). However,
unlike our decisions in Walters and United States v. Stewart,
in the instant case the lower court’s consideration of facts
underlying the assault and abusive sexual contact offenses
in evaluating the sexual harassment offense did not violate
double jeopardy principles because the offenses and ele-
ments were, quite simply, not the same. Walters, 58 M.J. at
397; Stewart, 71 M.J. 38, 43 (C.A.A.F. 2012).
    We view this case as more akin to Gutierrez than Smith,
in that the fact patterns of the convicted and acquitted be-
haviors overlapped but were not identical. In Gutierrez, this
Court stated that “[a]lthough Gutierrez was acquitted of the
rape specification, the government is correct in noting that
the panel could independently consider the evidence sup-
porting that incident while deliberating on the stalking
charge.” 73 M.J. at 175. Similarly, we suggested that a
Court of Criminal Appeals could independently consider evi-
dence supporting an offense for which an appellant was ac-
quitted in evaluating whether evidence supported a different
offense of which an appellant was convicted. We apply our
conclusions in Gutierrez to the circumstances of this case
and conclude that the lower court properly considered facts
relevant to the abusive sexual contact and assault consum-
mated by battery specifications of which Appellant was ac-
quitted since those facts were also relevant to the sexual
harassment specification of which he was convicted. 2
                             Decision
   The decision of the United States Navy-Marine Corps
Court of Criminal Appeals is affirmed.

   2   This Court also granted review on an additional issue. At
trial, the military judge provided the following instruction to the
members prior to deliberation: “If, based on your consideration of
the evidence, you are firmly convinced that the accused is guilty of
the crimes charged, you must find him guilty.” Appellant chal-
lenges the use of the word “must” as improper. Because the in-
struction was not objected to at the time of trial, the standard of
review for this issue is plain error. In accordance with United
States v. McClour, we find that the military judge’s use of the
phrase “must find him guilty” does not amount to plain error. __
M.J. __ (1-2) (C.A.A.F. 2017).




                                 7
