This opinion is subject to administrative correction before final disposition.




                                Before
                 TANG, LAWRENCE, and J. STEPHENS,
                       Appellate Military Judges

                        _________________________

                          UNITED STATES
                              Appellee

                                     v.

                   Eduardo A. HERRERA
      Aviation Machinist’s Mate Second Class (E-5), U.S. Navy
                            Appellant

                             No. 201800062

                        Decided: 5 September 2019

 Appeal from the United States Navy-Marine Corps Trial Judiciary.
 Military Judge: Commander Stephen Reyes, JAGC, USN. Sentence
 adjudged 19 October 2017 by a general court-martial convened at
 Fleet Activities Yokosuka, Japan, consisting of officer and enlisted
 members. Sentence approved by the convening authority: reduction to
 pay grade E-1, confinement for 90 days and a bad-conduct discharge.

 For Appellant: Lieutenant Daniel E. Rosinski, JAGC, USN.

 For Appellee: Lieutenant Clayton S. McCarl, JAGC, USN; Lieutenant
 Kimberly Rios, JAGC, USN.

 Judge LAWRENCE delivered the opinion of the Court, in which Sen-
 ior Judge TANG and Judge J. STEPHENS joined.
                        _________________________

         This opinion does not serve as binding precedent,
          but may be cited as persuasive authority under
           NMCCA Rule of Practice and Procedure 30.2.
                      United States v. Herrera, No. 201800062


                                 _________________________

LAWRENCE, Judge:
    A panel of members with enlisted representation sitting as a general
court-martial convicted the appellant, contrary to his pleas, of one specifica-
tion of abusive sexual contact in violation of Article 120, Uniform Code of Mil-
itary Justice (UCMJ). 1 The members acquitted the appellant of two other
specifications under the sole charge alleging rape and sexual assault of the
same victim.
    The appellant raises three assignments of error (AOEs) 2: (1) the military
judge plainly erred by improperly instructing the court-martial members;
(2) the trial defense counsel (TDC) was ineffective for failing to object to this
instruction; and (3) the evidence is factually insufficient. We find no prejudi-
cial error and affirm.

                                     I. BACKGROUND

    The victim, Hospitalman (HN) KT, and the appellant met and became
platonic friends through playing on opposite teams in an on-base bowling
league. Over time, the appellant and HN KT engaged in occasional conversa-
tions on social media platforms.
    On 16 April 2016, the appellant drank alcoholic beverages as he played
softball. He then continued to drink more alcohol that evening at the base
enlisted club. At trial, the appellant testified that, due to his intoxication, he
had no recollection of anything that happened from the time he was at the
enlisted club until he awoke the next morning.
   HN KT testified that she and the appellant exchanged social media mes-
sages while she was babysitting off the base that night. In their messages,
they agreed that the appellant would come over to her barracks room upon
her return and they would watch a movie together.
    Shortly after midnight, HN KT sent a message to the appellant to let him
know that she had returned to her barracks room. When the appellant ar-
rived, he smelled of alcohol, slurred his speech, leaned against the door, and
was unstable as he walked into the room. HN KT asked the appellant to pick
out a movie for them to watch; then she went to use the bathroom that was in



   1   10 U.S.C. § 920 (2012).
   2   We have reordered the AOEs.




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                       United States v. Herrera, No. 201800062


the middle of the suite of two adjoining barracks rooms. She returned to wash
her hands at the sink in her room, at which time the appellant came up from
behind HN KT and pinned her in by placing his hands on the sink to either
side of her. The appellant started to kiss her neck and HN KT unsuccessfully
tried to escape or push him away. The appellant grabbed HN KT and pushed
her onto her bed. He then bit HN KT on the abdomen, then on the breasts,
and later on her inner thighs and leg. Ultimately, HN KT was able to break
away and flee to her bathroom where she waited behind a locked door until
the appellant left her room. HN KT reported what happened over a month
after the events in question. Additional facts necessary for resolution of the
AOEs are included in the discussion below.

A. Instructional Error
    We first address the appellant’s contention that the military judge com-
mitted plain error by providing contradictory instructions concerning the bod-
ily harm element of the offense. At trial, the TDC did not object to the in-
structions provided by the military judge.

   1. The legal standard of review
    When there is no objection to panel instructions at trial, we review for
plain error and grant relief only when “(1) there was error that was (2) clear
or obvious, and that (3) materially prejudiced a substantial right of the ac-
cused.” 3 Should we find the error to be constitutional in nature, we presume
prejudice unless the government shows the error to have been harmless be-
yond a reasonable doubt. 4

   2. Discussion
    The appellant was convicted of a specification alleging abusive sexual con-
tact in that he “did . . . touch directly the breast and inner thigh of [HN KT]
by causing bodily harm to [HN KT], to wit: biting her breast and legs, with an
intent to gratify the sexual desire of [the appellant].” 5




   3   United States v. McDonald, 78 M.J. 376, 378 (C.A.A.F. 2019).
   4   United States v. Sweeny, 70 M.J. 296, 304 (C.A.A.F. 2011).
   5   Charge Sheet.




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                      United States v. Herrera, No. 201800062


    The military judge provided the following instruction relating to this spec-
ification:
             In Specification 3 of the Charge the accused is charged with
         the offense of abusive sexual contact in violation of Article 120
         of the UCMJ. In order to find the accused guilty of this offense,
         you must be convinced by legal and competent evidence beyond
         a reasonable doubt that:
            On or about 17 April 2016, at or near Naval Air Facility,
         Atsugi, Japan, the accused committed sexual contact upon [HN
         KT] by touching directly the breast and inner thigh of [HN KT],
         and
            [Two,] [t]he accused did so by causing bodily harm to [HN
         KT] to wit: biting her breast and her legs;
            Three, that the accused did so with the intent to gratify his
         sexual desire, and
             Four, the accused did so without the consent of [HN KT].
             Touching may be accomplished by any part of the body.
            “Bodily harm” means any offensive touching of another,
         however slight, including any nonconsensual sexual act or non-
         consensual sexual contact.
             The government has alleged the accused committed a sexu-
         al contact, to wit: touching directly the breast and inner thigh
         of [HN KT] and that the same physical acts also constitute bod-
         ily harm required for the charge of abusive sexual contact. Now
         under these circumstances, the government also has the bur-
         den to prove beyond a reasonable doubt that [HN KT] did not
         consent to the physical acts. 6
    The appellant argues that the instruction is “contradictory” and “effective-
ly removed the requirement that the members find beyond a reasonable
doubt that [the appellant] bit HN KT” which “allowed the members to convict
[the appellant] for any touching” short of the biting the government alleged. 7




   6   Record at 662-63; Appellate Exhibit LXXXVIII.
   7   Appellant’s Brief of 6 Aug 18 at 19 (emphasis in original).




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                        United States v. Herrera, No. 201800062


    The military judge was required to instruct the members on “[a] descrip-
tion of the elements of each offense charged.” 8 The elements of the offense, as
defined by the President in the Manual for Courts-Martial, are: (1) that the
appellant committed sexual contact; (2) that he did so by causing bodily
harm; and (3) that he did so with the intent to gratify his sexual desires. 9 As
tailored above, the military judge’s instructions comport with the presiden-
tially defined elements of the offense. The military judge added a fourth ele-
ment, which served to increase the government’s burden of proof, by instruct-
ing that the members had to find that the appellant committed the sexual act
without HN KT’s consent. This is a judicially created fourth element that the
Military Judge’s Benchbook recommends when “the same physical act is al-
leged as both the actus reus and the bodily harm for the charged sexual con-
tact.” 10
   In this case, the military judge noted, and the parties agreed, that the
fourth element might apply because the actus reus of “touching directly the
breast and inner thigh” was very similar to the alleged bodily harm of “biting
her breast and her legs.” 11 Thus, the military judge added the judicially cre-
ated fourth element with the express assent of the TDC. 12
    Because the military judge added the fourth element, he noted in his in-
structions that “the same physical acts also constitute bodily harm required
for the charge of abusive sexual contact.” 13 The appellant has based this AOE
on this portion of the last paragraph of the instruction taken in isolation. Ra-
ther than parsing just one portion, we must consider the instructions as a
whole. 14
    In context, there is no reasonable reading of the instructions to suggest
that the military judge impermissibly lessened the government’s burden. Fol-
lowing four explicitly defined elements of the offense, this language was
clearly prefatory, noting that in these “circumstances, the government also


   8 RULE FOR COURTS-MARTIAL 920(e)(1), MANUAL FOR COURTS-MARTIAL (MCM),
UNITED STATES (2016 ed.).
   9   MCM, Part IV, ¶ 45b(7).
   10 Military Judge’s Benchbook, Dep’t of the Army Pamphlet 27-9 of 1 Sep 2014,
Instruction 3-45-16, note 3.
   11   Charge Sheet.
   12   See Record at 115, 616-19.
   13   Id. at 663.
   14   United States v. Schap, 49 M.J. 317, 322 (C.A.A.F. 1998).




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                         United States v. Herrera, No. 201800062


has the burden to prove beyond a reasonable doubt that [HN KT] did not con-
sent to the physical acts.” 15 The military judge correctly instructed the mem-
bers of the elements of abusive sexual contact that necessarily included both
the direct touching of HN KT’s breast and inner thigh and the bodily harm
brought about by biting her breast and legs.
    Even if the challenged prefatory language created any ambiguity with the
military judge’s clear listing of the four elements of the offense, we do not find
error. The members receive instructions following the presentation of evi-
dence over the course of the trial. We too consider instructions “in the context
of the instructions as a whole and the trial record.” 16 There must be more
than a “‘slight possibility’ that the jury misapplied the instruction.” 17 Rather,
we ask “whether the ailing instruction by itself so infected the entire trial
that the resulting conviction violates due process.” 18
    Looking to the entire record, we do not believe the jury misapplied the in-
struction. There was ample evidence that the government and the defense
viewed the specification as alleging that the appellant bit HN KT on her
breast and thigh.
    HN KT provided compelling testimony describing how the appellant re-
peatedly bit her, and the government presented photographs that showed
significant bruising. After testifying that the appellant first bit her abdomen,
HN KT detailed how the appellant lifted up her shirt, exposed her breasts
and “began to bite them” 19 causing her even greater pain than in his initial
bite to her abdomen. Following this, HN KT testified that the appellant
pulled off her pants and began biting her inner thigh “with more and more
force” and “much harder” than he had bitten her breasts or abdomen. 20 The
most forceful and painful bites—those to her inner thighs—were memorial-
ized in photographs that were admitted and published to the members. The
government also presented Prosecution Exhibit (PE) 4, a social media mes-
sage containing a near-term picture HN KT had taken and sent to the appel-
lant showing the dark bruises on her left leg, and PE 5, the Sexual Assault




   15   Record at 663.
   16   Waddington v. Sarausad, 555 U.S. 179, 191 (2009) (citation omitted).
   17   Id. (emphasis in original) (citation omitted).
   18   Id. (citation omitted).
   19   Record at 410.
   20   Id. at 414.




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                      United States v. Herrera, No. 201800062


Nurse Examiner’s photographs taken over a month later that still indicated
bruising on HN KT’s left leg.
   Throughout the trial, the evidence presented biting—not touching, grab-
bing, pressing, pulling, hitting, or other acts—as the cause of HN KT’s bruis-
ing on her thighs. In closing arguments, the trial counsel argued that the
government proved that the appellant bit HN KT, and the TDC argued the
opposite. There was no ambiguity at trial on this issue.
   While the appellant avers “the military judge moved the goalposts to-
wards government” 21 in his instruction, “we are confident that the members
would not choose an interpretation that rendered the preceding evidence, ar-
guments, and instructions moot.” 22 Taken in context, we find no error, let
alone plain error, in the questioned instruction.

B. Ineffective Assistance of Counsel
    The appellant contends that his TDC was ineffective in his representation
by failing to object to what the appellant characterizes as a plainly erroneous
instruction.
    We analyze ineffective assistance of counsel claims under the test out-
lined by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984).
In order to prove ineffective assistance of counsel, the appellant must show
that his TDC’s performance was deficient and that the deficiency deprived
him of a fair trial. 23 Error! Hyperlink reference not valid.
    Having found the military judge did not err in instructing the panel, we
find no deficiency in TDC’s performance for not objecting to the same.

C. Factual Sufficiency
   The appellant avers his conviction was factually insufficient as the gov-
ernment failed to prove beyond a reasonable doubt that he bit HN KT’s
breasts, legs or inner thigh, and also failed to prove any of these acts were
committed with the requisite specific intent.




   21   Appellant’s Reply Brief of 10 Jan 2019 at 1.
   22 United States v. Clugston, No. 201500326, 2017 CCA LEXIS 43, at *28 (N-M.
Ct. Crim. App. 31 Jan 2017).
   23   United States v. Garcia, 59 M.J. 447, 450 (C.A.A.F. 2004).




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                      United States v. Herrera, No. 201800062


   1. The legal standard of review
    We review questions of factual sufficiency de novo. 24 In testing for factual
sufficiency, we “weigh[ ] the evidence in the record of trial and mak[e] allow-
ances for not having personally observed the witnesses” in order to determine
whether we, ourselves, are “convinced of the accused’s guilt beyond a reason-
able doubt.” 25 We take a “fresh, impartial look at the evidence” and must
“make [our] own independent determination as to whether the evidence con-
stitutes proof of each required element beyond a reasonable doubt.” 26

   2. Discussion

          a. The government’s case
    The members heard extensive, detailed testimony from HN KT. The TDC
thoroughly cross-examined her on perceived discrepancies between her prior
Article 32 testimony and her sworn statement to NCIS. But the core of HN
KT’s allegations remained the same: the appellant came to her room in a
drunken state and, without her consent, physically overpowered her, kissed
her, forced her onto her bed where he bit her abdomen, breast, and inner
thigh, and ultimately forcibly raped her. HN KT testified that she eventually
broke away. She fled to her bathroom where she waited for the appellant to
leave before returning to her bedroom and sleeping not in the bed, but on the
floor, a practice that she testified became common to her for months after as
the result of the appellant’s actions that night.
   The government presented PE 4 and PE 5, documenting the state of HN
KT’s visible bruising both soon after the assault and about 40 days later.
    The government also presented the messages the appellant sent HN KT
in the days after the assault. The appellant wrote HN KT shortly after the
day of the assault, saying, “Hey hope you’re having a good day.” 27 When HN
KT did not reply, he wrote, “I hope you enjoyed your day today,” and “If you
want, I’d like to get together and talk soon.” 28 When HN KT still did not re-




   24    Article 66, UCMJ; United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002).
   25   United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).
   26   Washington, 57 M.J. at 399.
   27   PE 4 at 1.
   28   Id.




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                         United States v. Herrera, No. 201800062


ply, having had no contact with HN KT since he left the morning of the as-
sault, the appellant wrote:
         I won’t bother you again but I need to say this– I’m not entirely
         sure how the other night went. I was obviously beligerently
         drunk and dont remember most of it. I do, however, have this
         feeling that I royally messed up. . . . What matters is that I am
         ashamed of myself for being the way I was in your presence,
         and will be more ashamed if I disrespected you in any way. You
         don’t deserve that. I’m really sorry that you had to see me like
         that. . . . I’ve been trying to piece the night together all week,
         and although I do not seek forgiveness, you need to know that
         it’s killing me to know that I may have treated a woman the
         wrong way and want to correct it if possible. 29
   HN KT replied, “You bruised me. A lot. After I told you multiple times to
stop.” 30 The appellant replied, “Really? I’m so so soo sorry. That breaks my
heart knowing that I did something like that.” 31 HN KT then sent a photo of
her left leg, depicting dark bruises to her inner thigh and calf.

         b. The defense case
    The appellant testified in his own defense, but his testimony was not
compelling. He testified he lost all memories from the time he was drinking
at the enlisted club until he woke up the next morning. His lack of memory
stemmed from seven hours of drinking alcoholic beverages. In more than 20
responses to questions from TDC, trial counsel, and the members, the appel-
lant said he was unable to recall the events at issue. A representative exam-
ple of the nature of the appellant’s testimony appears in this question from
the panel:
   Q:         [D]id you bite . . . [HN KT]’s legs?
   A:         I do not recall like that night. I don’t recall anything after being
              at [the enlisted club], sir, so I can’t—I can’t answer that question,
              sir. Sorry.32




   29   Id. at 1-2.
   30   Id. at 2.
   31   Id.
   32   Record at 596.




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                         United States v. Herrera, No. 201800062


   Although the appellant testified that he did not think he was capable of
committing the acts HN KT described, he could not testify that they did not
happen. He testified that he woke up the next morning with his arm around
HN KT in her bed and that the two exchanged pleasantries as they each got
up to go about their Sunday plans. 33
    Additionally, the defense presented the testimony of HN KT’s friend,
HM3 AL. HN KT confided in HM3 AL some details about the appellant’s visit
to her room on the night of the assault. On direct examination, HM3 AL testi-
fied that HN KT said a friend came to her room drunk, that she let him
“sleep it off” in her room, but that the friend kept “trying to bite her” while
she “kept on saying no and that she was pushing him away and that he never
stopped.” 34 On cross-examination, HM3 AL clarified that he had only as-
sumed that HN KT let this drunk friend stay overnight in her room, noting
that HN KT never said she did so. He also clarified that HN KT told him that
she was actually bitten throughout the night on the legs and that, following
the incident, HM3 AL noticed that “[HN KT] definitely seemed more down at
work, a little more secluded and definitely more argumentative with a few of
her coworkers for a few months after that.” 35 HM3 AL said that he believed
HN KT had only told him limited information about the incident, “but [he]
didn’t want to force her to recall things that she might not feel comfortable
telling [him] . . . . [or] force her to think about it or to talk about something
that . . . she might not be ready to talk about.” 36
    The defense also presented the testimony of the barracks petty officer on
duty the night of the assault to show that there were no reports of loud noises
or unusual occurrences. An NCIS agent testified he was unable to recover se-
curity footage due to HN KT’s delay in reporting, and he did not attempt to
find any witnesses who remembered hearing a woman screaming on the
night of the alleged assault. Finally, the defense presented two witnesses who
opined that the appellant is a truthful person.

         c. Appellant’s argument
    The appellant asserts the evidence is factually insufficient because he
claims HN KT made inconsistent statements to HM3 AL. His argument fails



   33   In rebuttal, HN KT testified this never happened.
   34   Record at 511.
   35   Id. at 516.
   36   Id. at 519.




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                       United States v. Herrera, No. 201800062


to account for the entirety of HM3 AL’s testimony as clarified on cross-
examination and by members’ questioning. On balance, we find HM3 AL’s
testimony is consistent with the testimony of HN KT and supports the mem-
bers’ finding that the appellant committed abusive sexual contact with HN
KT.
    The appellant further claims the evidence is factually insufficient because
HN KT did not provide photographic evidence that the appellant bit her
breasts. He further argues the evidence is insufficient because, during their
text message exchange days after the assault, HN KT only accused the appel-
lant of biting her thighs, but not her breasts.
    Finally, the appellant argues the government did not prove he bit HN
KT’s body with the requisite intent to gratify his sexual desires. In the con-
text of HN KT’s testimony about the appellant’s actions in kissing her, then
leading her to the bed, then undressing her and biting her body, we find there
is sufficient proof that the appellant acted to gratify his sexual desires.

         d. The evidence is sufficient
    HN KT’s testimony was credible. It was corroborated by photographs, and
it was consistent with her statements to the appellant via messaging and her
statements to her friend, HM3 AL. The photographs depict large, round, dark
bruises that are consistent with the bites HN KT described.
    The appellant’s testimony largely consisted of repeated statements that
he had no memory of any of the events in question. Although the appellant
attempted to explain his statements in PE 4 in a benign manner, we inter-
pret those statements as proof of consciousness of guilt. Notably, in the mes-
sages, the appellant did not deny that he caused the bruises on HN KT’s legs.
Although he was not then accused of any misconduct, he took it upon himself
to repeatedly send unsolicited messages to HN KT. When she did not re-
spond, the appellant replied that he knew he “royally messed up,” was
“ashamed,” and assumed that he “may have treated a woman the wrong
way.” 37 Although the appellant testified at trial that he had no memory of
any interaction with HN KT that night, he wrote that he did not remember
“most” of the night and was trying to “piece the night together all week,”
which suggests he remembered more than he claimed to recall. 38




   37   PE 4 at 1-2.
   38   Id.




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                   United States v. Herrera, No. 201800062


    We note the appellant claimed that when he awoke in bed with HN KT—a
fact she adamantly denied—his memory returned. Given the weight of the
evidence in this case, we do not find this claim to be credible or to overcome
the evidence in support of guilt.
   Having reviewed the entirety of the record and after weighing the evi-
dence anew, and making allowances for not having personally observed the
witnesses, we are convinced beyond reasonable doubt of the appellant’s guilt
and find his conviction to be factually sufficient.

                              II. CONCLUSION

    After careful consideration of the record and briefs of appellate counsel,
we have determined that the approved findings and the sentence are correct
in law and fact and that there is no error materially prejudicial to Appellant’s
substantial rights. Arts. 59 and 66, UCMJ. Accordingly, the findings and the
sentence as approved by the convening authority are AFFIRMED.

                                FOR THE COURT:




                                RODGER A. DREW, JR.
                                Clerk of Court




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