              UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                               UNITED STATES

                                                           v.

                                Senior Airman JONATHAN T. DANIEL
                                        United States Air Force

                                                    ACM 38322

                                                   01 April 2014

            Sentence adjudged 25 January 2013 by GCM convened at Altus Air Force
            Base, Oklahoma. Military Judge: J. Wesley Moore.

            Approved Sentence: Dishonorable discharge, confinement for 12 months,
            and reduction to E-1.

            Appellate Counsel for the Appellant: Captain Isaac C. Kennen.

            Appellate Counsel for the United States: Colonel Don M. Christensen;
            Lieutenant Colonel C. Taylor Smith; and Gerald R. Bruce, Esquire.

                                                        Before

                                    HELGET, WEBER, and MITCHELL
                                        Appellate Military Judges

                                          OPINION OF THE COURT

                          This opinion is subject to editorial correction before final release.



HELGET, Senior Judge:

       A general court-martial composed of officer members convicted the appellant,
contrary to his pleas, of one specification of abusive sexual contact, in violation of
Article 120, UCMJ, 10 U.S.C. § 920.1 The members sentenced the appellant to a
dishonorable discharge, confinement for 12 months, and reduction to E-1. The
convening authority approved the adjudged sentence.


1
 Consistent with his pleas, the appellant was found not guilty of one specification of sexual assault, in violation of
Article 120, UCMJ, 10 U.S.C. § 920.
       Before this Court, the appellant raises two assignments of error: (1) Whether the
Government violated the appellant’s Fifth Amendment2 right to due process of law by
prosecuting him before a court-martial panel of six members whose verdict did not have
to be unanimous; and (2) Whether the evidence at trial was factually and legally
sufficient to prove the conviction beyond a reasonable doubt. Finding no error that
materially prejudices a substantial right of the appellant, we affirm.

                                       Background

      On 14 July 2012, the victim in this case, Staff Sergeant (SSgt) LK, and her friend,
SSgt JM, who were both assigned to Altus Air Force Base, Oklahoma, decided to go to
Oklahoma City to spend a night out on the town. SSgt LK had previously planned that
they would meet up with Senior Airman (SrA) RM, who was one of her male friends.

       Shortly after checking into their hotel room, at approximately 1600, SSgt LK and
SSgt JM went to SrA RM’s room, which by coincidence ended up being just across the
hall. Upon entering SrA RM’s room, SSgt LK and SSgt JM were introduced to the
appellant and Airman First Class (A1C) CB, who were staying with SrA RM. SSgt LK
had not previously met the appellant. While in SrA RM’s room, SSgt LK drank about
half a shot of Grey Goose vodka. At approximately 1830, SSgt LK and SSgt JM went
with the appellant, SrA RM, and A1C CB to a local restaurant. They drove together in
SrA RM’s vehicle.

        While at the restaurant, SSgt LK drank approximately one mixed drink and four to
five shots of various kinds of alcohol. At some point during dinner SSgt LK and the
appellant went outside to smoke, and the appellant informed her that SrA RM was
attracted to her. SSgt LK responded that she was not interested in starting a relationship
with SrA RM or anyone else that night, as she was in the process of starting a relationship
with someone else.

       After dinner, the appellant drove the entire group back to the hotel. Between
2200-2230, they all took a shuttle to downtown Oklahoma City and eventually ended up
at the CityWalk club. While at the CityWalk, SSgt LK danced with the appellant and at
some point he rubbed her feet for a few minutes, but according to her nothing romantic
happened between them.

       SrA RM decided to leave the club early and returned to the hotel. The rest of the
group stayed at the CityWalk until around 0130 on 15 July 2012. On the way back to the
hotel the appellant and A1C CB could not reach SrA RM and, as a result, did not have a
place to stay for the night. According to SSgt LK, she discussed the issue with SSgt JM
and they agreed to allow the appellant and A1C CB to stay in their room as they were

2
    U.S. CONST. amend. V.


                                             2                                   ACM 38322
both Airmen. SSgt LK’s understanding was that the male Airmen were going to sleep on
the floor, but SSgt JM understood that they were just going to work something out with
them. On the walk back to the hotel, the appellant gave SSgt LK his shoes, because her
feet were hurting from wearing heels, and he also carried her for part of the way.
According to SSgt LK, the appellant made no sexual advances toward her on the way
back to the hotel.

       Upon arrival to the hotel, the appellant and A1C CB stayed downstairs to smoke
while SSgt LK and SSgt JM went upstairs to their room and proceeded to get ready for
bed. SSgt LK changed into her pajamas consisting of a V-cut shirt and a pair of black
drawstring shorts. She was also wearing a bra and underwear. There were two beds in
the room, and SSgt LK decided to sleep on the bed closest to the door and furthest from
the bathroom. She remembered only SSgt JM and A1C CB in the room when she went to
sleep. She understood that the appellant would be sleeping on the floor.

       For her part, SSgt JM testified that after she changed into her pajamas, she came
out of the bathroom and saw SSgt LK, the appellant, and A1C CB all standing at the foot
of the beds. She then went back into the bathroom to wash her face. When she came
back out, everyone was lying down in the beds and appeared to be asleep. A1C CB was
in one bed, and SSgt LK and the appellant were in the other bed closest to the door, under
the covers. SSgt JM did not witness anything romantic occur between SSgt LK and the
appellant.

        SSgt LK testified that the next thing she remembered was waking up with the
appellant’s fingers in her vagina.3 She also felt the appellant’s penis on her left leg inside
her upper thigh near her genitalia. Her shirt was pulled down and her right breast was
exposed. Her shorts and underwear had also been pulled down to her thighs. She
immediately jumped out of bed and started screaming, “Where the f[**]k is the light[?]
Where the f[**]k is the light[?]” She was mad and scared. When someone turned on the
lights, she saw the appellant on the opposite side of SSgt JM’s bed pulling up his pants
and putting his shoes on. SSgt JM and A1C CB were sitting up in the other bed and
asked what was happening. SSgt LK looked at A1C CB and stated, “Why does your
friend think it is okay to f[**]kin stick his fingers inside me when I was sleeping?”
SSgt JM then told the appellant to leave. As the appellant started to leave, SSgt LK
punched him four to five times in his chest and back and yelled at him to leave. The
appellant departed without saying a word.

3
  The appellant was found not guilty of the Charge that alleged, as a violation of Article 120, UCMJ, the appellant
“commit[ted] a sexual act upon Staff Sergeant [LK], by penetrating the vulva of the said Staff Sergeant [LK] with
his finger when he knew or reasonably should have known that the said Staff Sergeant [LK] was asleep, with an
intent to gratify the sexual desire of [the appellant].” The appellant was convicted, in violation of Article 120,
UCMJ, of the Additional Charge, for “touch[ing] directly the inner thigh of Staff Sergeant [LK] when [the appellant]
knew or reasonably should have known that the said Staff Sergeant [LK] was asleep, with an intent to gratify the
sexual desire of the [appellant].”


                                                         3                                             ACM 38322
       SSgt JM testified that SSgt LK pounded on the wall, yelled for someone to turn on
the lights, and yelled at the appellant, “I never invited you into my bed. Get out of my
bed. You had your fingers inside my vagina. You were trying to put your penis inside
my vagina.”

       SSgt LK then went into the bathroom with SSgt JM. While in the bathroom,
SSgt LK cried hysterically and tried to tell SSgt JM what happened. She then decided to
call her friend, Special Agent JH, Air Force Office of Special Investigations, and at his
direction she called 911 and reported the incident.

       SrA RM testified that he woke up at approximately 0400 to the appellant banging
on the door. The appellant told SrA RM that the girls had kicked him out of the room
and proceeded to go to bed.

                             Fifth Amendment Right to Due Process

        The appellant contends that the Government violated his Fifth Amendment right to
due process of law because he was prosecuted by a court-martial panel consisting of only
six members whose verdict did not have to be unanimous. The appellant relies on the
Supreme Court’s rulings in Ballew v. Georgia, 435 U.S. 223 (1978), and Burch v.
Louisiana, 441 U.S. 130 (1979), to support his position that he was entitled to a jury with
at least six members and that he could only be found guilty by a unanimous vote. In
Ballew, the Supreme Court held that a trial consisting of a jury of less than six persons
deprives a defendant of the right to trial by a jury as contemplated by the Sixth
Amendment.4 435 U.S. at 245. The decision was based on empirical studies showing
that “the purpose and functioning of the jury in a criminal trial is seriously impaired, and
to a constitutional degree, by a reduction in size to below six members.” Id. at 239.
Subsequently, in Burch, the Court held that conviction by a non-unanimous six-member
jury also fails to comply with the Sixth Amendment, saying:

          [M]uch the same reasons that led us in Ballew to decide that use of a five-
          member jury threatened the fairness of the proceeding and the proper role
          of the jury, lead us to conclude now that conviction for a nonpetty offense
          by only five members of a six-person jury presents a similar threat to
          preservation of the substance of the jury trial guarantee and justifies our
          requiring verdicts rendered by six-person juries to be unanimous.

441 U.S. at 138.

       In O’Callahan v. Parker, 395 U.S. 258 (1969), overruled on other grounds by
Solorio v. United States, 483 U.S. 435 (1987), the Supreme Court explained:

4
    U.S. CONST. amend. VI.


                                               4                                  ACM 38322
           The Constitution gives Congress power to “make Rules for the Government
           and Regulation of the land and naval Forces,” and it recognizes that the
           exigencies of military discipline require the existence of a special system of
           military courts in which not all of the specific procedural protections
           deemed essential in Art. III trials need apply. The Fifth Amendment
           specifically exempts “cases arising in the land or naval forces, or in the
           Militia, when in actual service in time of War or public danger” from the
           requirement of prosecution by indictment and from the right to trial by jury.
           The result has been the establishment and development of a system of
           military justice with fundamental differences from the practices in the
           civilian courts.

Id. at 261-62 (citation and emphasis omitted).

       If the case does not arise in the land or naval forces, then the accused gets, first,
the benefit of an indictment by a grand jury and, second, a trial by jury before a civilian
court as guaranteed by the Sixth Amendment and by Article III, Section 2, of the
Constitution,5 which provides, in part:

           The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury;
           and such Trial shall be held in the State where the said Crimes shall have
           been committed; but when not committed within any State, the Trial shall
           be at such Place or Places as the Congress may by Law have directed.

        While the Sixth Amendment requires trial by jury in Federal criminal cases, and
that jury’s composition must be a representative cross-section of the community, courts-
martial have never been considered subject to the jury-trial demands of the Constitution.
United States v. McClain, 22 M.J. 124, 128 (C.M.A.1986); see also O’Callahan,
395 U.S. at 261-62. Our superior court recently re-emphasized that the Sixth
Amendment right to a jury trial does not apply to courts-martial. United States v. Easton,
71 M.J. 168, 175 (C.A.A.F. 2012) (citing Ex parte Quirin, 317 U.S. 1, 39 (1942); United
States v. Wiesen, 57 M.J. 48, 50 (C.A.A.F. 2002)).

       We find the authorities cited by appellant to buttress his claim of a due process
violation, Ballew and Burch, do not in any way limit the power of Congress to create
rules for courts-martial pursuant to Article I, Section 8 of the Constitution.6 Consistent
with our superior court’s precedent, courts-martial are not subject to the same jury
requirements as other criminal trials. Accordingly, this issue is without merit.


5
    U.S. CONST. art. III, § 2.
6
    U.S. CONST. art. I, § 8.


                                                 5                                    ACM 38322
                              Legal and Factual Sufficiency

       The appellant asserts that the evidence at trial was not factually and legally
sufficient to prove the conviction for abusive sexual contact. We review issues of factual
and legal sufficiency de novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002).

       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] convinced of the [appellant]’s guilt beyond a reasonable doubt.” United States
v. Turner, 25 M.J. 324, 325 (C.M.A. 1987), quoted in United States v. Reed, 54 M.J. 37,
41 (C.A.A.F. 2000). 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.

        The test for legal sufficiency of the evidence 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.” Turner, 25 M.J. at 324, quoted in
United States v. Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002). “[I]n 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) (citing United States v. Rogers, 54 M.J. 244, 246 (C.A.A.F. 2000);
United States v. Blocker, 32 M.J. 281, 284 (C.M.A. 1991)). Our assessment of legal and
factual sufficiency is limited to the evidence produced at trial. United States v. Dykes,
38 M.J. 270, 272 (C.M.A. 1993).

       The elements of abusive sexual contact, in violation of Article 120, UCMJ, as
instructed by the military judge, are:

       (1) That at or near Oklahoma City, Oklahoma, on or about 15 July 2012,
       the accused committed sexual contact upon [SSgt LK], to wit: touching
       directly the inner thigh of [SSgt LK]; and

       (2) That the accused did so when he knew or reasonably should have
       known that [SSgt LK] was asleep.

The military judge further instructed the members that “sexual contact” means:

             (A) touching, or causing another person to touch, either directly or
       through the clothing, the genitalia, anus, groin, breast, inner thigh, or


                                             6                                    ACM 38322
       buttocks of any person, with an intent to abuse, humiliate or degrade any
       person; or

              (B) any touching, or causing another person to touch, 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.

       In support of his claim of legal and factual insufficiency, the appellant essentially
attacks the credibility of SSgt LK and argues that no reasonable factfinder could have
found her testimony sufficient to establish guilt beyond a reasonable doubt. The
appellant highlights differences between her Article 32, UCMJ, 10 U.S.C. § 832,
testimony and her in-court testimony, primarily concerning the location of the appellant’s
penis on her body.

        We have reviewed and considered the entire record of trial and find that although
there are some relatively minor inconsistencies concerning SSgt LK’s testimony, her
recounting of what happened on the night of 14-15 July 2012 was very consistent with
the testimony of the other witnesses who were present that evening. The evidence shows
that she was not romantically interested in the appellant, she fell asleep and did not invite
him to join her in bed, and she awoke with the appellant’s penis touching her inner thigh.

       We have considered the evidence in the light most favorable to the prosecution.
We have also made allowances for not having personally observed the witnesses. Having
paid particular attention to the matters raised by the appellant, we find the evidence
factually and legally sufficient to support his conviction for abusive sexual contact.

                                        Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and
sentence are

                                       AFFIRMED.



              FOR THE COURT


              STEVE LUCAS
              Clerk of the Court


                                              7                                    ACM 38322
