UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                           BURTON, HAGLER, and FLEMING
                              Appellate Military Judges

                          UNITED STATES, Appellee
                                        v.
                   Private First Class DAYLON R. SANDERS
                         United States Army, Appellant

                                   ARMY 20160184

                 Headquarters, 8th Theater Sustainment Command
                          Mark Bridges, Military Judge
                 Colonel Anthony T. Febbo, Staff Judge Advocate

For Appellant: Lieutenant Colonel Tiffany M. Chapman, JA; Major Julie L.
Borchers, JA; Captain Augustus Turner, JA (on brief).

For Appellee: Colonel Tania M. Martin, JA; Captain Austin L. Fenwick, JA;
Captain Joshua B. Banister, JA (on brief).

                                      26 July 2018
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                               SUMMARY DISPOSITION
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BURTON, Senior Judge:

      Appellant asserts his conviction for sexual assaulting Private First Class
(PFC) HM is factually insufficient. We agree, set aside the findings and dismiss the
charge. 1

       This case is before this court pursuant to Article 66(c), Uniform Code of
Military Justice [UCMJ]. A panel of officer and enlisted members sitting as a
general court-martial convicted appellant of two specifications of sexual assault in
violation of Article 120, UCMJ, 10 U.S.C. § 120 (2012). After findings, the military
judge dismissed one specification after merging it with the other specification of
The Charge. The convening authority approved the sentence adjudged by the panel
of a dishonorable discharge and confinement for six months.

1
 Our resolution of the factual sufficiency issue moots the remaining assigned errors,
as well as those matters personally raised by appellant pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982).
SANDERS—ARMY 20160184



                                   BACKGROUND

       On or about 3 January 2015, appellant, PFC HM, and several other soldiers
gathered for a party in the barracks at Schofield Barracks, Hawaii. The party began
in the barracks suite shared by Specialist (SPC) KP and PFC HM and eventually
moved to the second floor suite occupied by PFC MF.

       At some point during the party PFC HM and appellant danced in the kitchen.
At least one witness saw PFC HM grinding her buttocks against appellant and
appellant touching PFC HM’s breasts. As the party progressed, PFC HM got
intoxicated to the point where she was crawling on the ground and having difficulty
speaking in full sentences. This prompted PFC LC and SPC CR to carry PFC HM
downstairs to her room and put her to bed. Private First Class LC and SPC CR then
returned to the party. Sometime later, PFC HM left her room, crawled back to the
party on the second floor and tried to lay down on a couch. Again, PFC LC and SPC
CR carried PFC HM back to her room and put her to bed. At the time, appellant was
in PFC HM’s bed and appeared to be passed out or asleep. Private First Class LC
and SPC CR returned to the party.

      At some later point, somebody came upstairs and told PFC LC that PFC HM’s
door was closed and locked. Specialist KP and PFC LC reported this event four
months later to a SHARP representative and the U.S. Army Criminal Investigation
Command (CID). At trial, the witness accounts of what happened next diverged.
The following three witnesses provided the most detail: (1) PFC LC; (2) SPC KP;
and (3) SPC DC.

       Private First Class LC testified that she grabbed a butter knife and used it to
open PFC HM’s bedroom door. Private First Class LC could see in the room as the
lights were on. She witnessed appellant on top of PFC HM, although he did not
appear to be moving and his eyes were closed. Appellant’s pants were down to his
ankles and PFC HM’s pants and underwear were pulled down. Private First Class
LC testified that she did not see appellant’s penis in PFC HM’s vagina or notice
appellant humping or kissing PFC HM. Private First Class LC closed the door and
asked SPC KP, PFC HM’s suitemate, what they should do. Private First Class LC
then reentered the room, pulled appellant up by his shoulders, dragged him to the
living room, and then pulled up his pants. Private First Class LC then went outside
to smoke a cigarette. Private First Class LC testified she entered the room both
times by herself; SPC KP and another government witness, SPC DC, did not enter
the room with her.

        Specialist KP, a government witness, testified she entered the room with PFC
LC the second time the door was opened. Specialist KP testified she saw appellant
on top of PFC KM making thrusting motions and heard wet noises. She claimed the
room “smelled like sex,” an observation not shared by PFC LC. Specialist KP
testified appellant’s penis was not soft, but it was wet. Specialist KP testified that



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SANDERS—ARMY 20160184


she yelled at appellant, calling him a rapist, which caused appellant to cry and
apologize. KP testified that the next morning, she told PFC HM all of the details of
the assault that she related during her testimony at trial.

       Specialist DC, also a government witness, testified that he too entered the
bedroom with PFC LC and SPC KP and saw them take appellant off of PFC HM.
Specialist DC claimed appellant was thrusting his hips and SPC DC saw appellant’s
penis enter PFC HM’s vagina. Later, in the living room, appellant told SPC DC that
the sex with SPC KP was consensual.

       As for Private First Class HM, her testimony did not add much to the events
that occurred in the bedroom. She remembered being at the party and having a few
drinks, but then remembered nothing else until the next morning. That morning,
SPC KP told PFC HM that appellant was found in the room on top of PFC HM.
However, SPC KP did not state that appellant was humping, thrusting, or kissing
PFC HM. When she awoke, her jeans were down to her mid-thigh and her
underwear was twisted. Private First Class HM testified that she did not consent to,
or want to have sex with appellant. As for the morning after the incident, she
experienced no soreness in her vagina and did not feel like she just had sex or as if
she had been sexually assaulted. Further, there were no stains on her legs or the
bedsheets.

                              LAW AND DISCUSSION

       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), UCMJ, 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. In weighing factual sufficiency, we take “a fresh, impartial
look at the evidence,” applying “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).

       As charged, the Article 120, UCMJ, offense of sexual assault required proof,
beyond a reasonable doubt, that appellant penetrated PFC HM’s vagina with his
penis. Manual for Courts-Martial (2012 ed.), pt. IV, ¶¶ 45.b.(3)(e)(i), 45.b.(3)(f)(i).
We find the evidence insufficient on this element.

       As there is no physical evidence in the case and PFC HM has no memory of
the event, our determination as to the factual sufficiency of appellant’s conviction
turns on the weight we give to the testimony and credibility of the witnesses.
Distilled further, our determination rests on whether we put more weight into the
testimony of SPC KP and SPC DC or PFC LC, the only witnesses who claim to have



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SANDERS—ARMY 20160184


seen appellant and PFC HM together on the bed immediately after entering the
bedroom.

       As for SPC KP, our doubts about her testimony are many. First, several
witnesses shared their low opinion of SPC KP’s character for truthfulness, as well as
SPC KP’s low reputation within the unit on this important trait. Second, SPC KP
had a motive to fabricate, as the trauma she claimed to have suffered from
witnessing this event were key factors in getting an exception to policy in order to
obtain a service animal and achieve her longstanding wish to move out of the
barracks. Third, her testimony was impeached in several instances by other
witnesses. For example, SPC KP claimed that the morning after the incident, she
told PFC HM everything she had witnessed in the bedroom. That is, what she
related in her trial testimony was what she reported to PFC HM the morning after the
party. By contrast, PFC HM was clear in her testimony that both SPC KP and PFC
LC reported the next morning only that appellant was on top of PFC HM. Nothing
more. In fact, when the incident was reported a few months later, PFC LC was
surprised by the additional details related to SHARP personnel by SPC KP. In
another example from the trial, SPC KP denied asking SPC MF about his Article 32
testimony, a denial later contradicted at trial by PFC MF. For these and other
reasons, we find SPC KP’s testimony was not credible.

       Specialist DC’s testimony as to what he witnessed in the bedroom is, in our
view, problematic because many other witnesses place him elsewhere when PFC LC
entered the bedroom and pulled appellant off the bed. Specialist CR testified SPC
DC was in the living room on an armchair when PFC LC dragged appellant into the
living room. Private First Class LC did not see SPC DC until after she left the
barracks suite to go outside to smoke. Private First Class MF’s testimony supported
PFC LC’s recollection, as he was with SPC DC at the smoke pit when PFC LC left
the barracks suite after pulling appellant from the bedroom. While we did not
discern from the record a motive for SPC DC to fabricate his testimony, we find it
difficult to give it much weight. We note he did not provide a statement to CID
until a year after the event, meaning even his recollection of the incident may have
changed over time. In any event, we are not convinced that SPC DC was close
enough to the bedroom to witness the detail of the interaction between PFC HM and
appellant to which he testified. For that reason, we give SPC DC’s testimony little
weight.

       We find PFC LC’s testimony was credible. There is no dispute that she was
the first person to enter the bedroom on both occasions, so she was best placed to
observe appellant and PFC HM. Although PFC LC was intoxicated, her recollection
of what she saw in the bed was clear. Since PFC LC was the person who pulled
appellant out of the bed, she too was in the best position to observe whether
appellant was engaged in intercourse with PFC HM and whether appellant was
penetrating PFC HM’s vagina. What PFC LC observed was appellant, with his pants
down, asleep or passed out, on top of PFC HM, with her pants down, asleep or
passed out. Nothing more.



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SANDERS—ARMY 20160184



       Under the facts in this case, we cannot find beyond a reasonable doubt that
appellant penetrated PFC HM’s vagina with his penis. For that matter, we cannot
conclude what transpired in the bedroom behind closed doors involving two drunk
soldiers. For these reasons, we find the evidence factually insufficient.

                                  CONCLUSION

       The findings of guilty and sentence are SET ASIDE. The Charge and its
specification are DISMISSED.

      Judge HAGLER and Judge FLEMING concur.

                                       FOR THE
                                       FOR THE COURT:
                                               COURT:



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




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