              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                               Before
          K.J. BRUBAKER, J.R. MCFARLANE, M.C. HOLIFIELD
                      Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                    FABIAN J. THOMPSON
     AVIATION BOATSWAIN'S MATE FIRST CLASS (E-6), U.S. NAVY

                           NMCCA 201400072
                       GENERAL COURT-MARTIAL


Sentence Adjudged: 9 August 2013.
Military Judge: CAPT Colleen M. Glaser-Allen, JAGC, USN.
Convening Authority: Commander, Naval Air Force Atlantic,
Norfolk, VA.
Staff Judge Advocate's Recommendation: CAPT T.J. Welsh,
JAGC, USN.
For Appellant: Maj John J. Stephens, USMC.
For Appellee: LCDR Keith B. Lofland, JAGC, USN.

                             21 April 2015

     ---------------------------------------------------
                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

BRUBAKER, Senior Judge:

     A panel of officer and enlisted members sitting as a
general court-martial convicted the appellant, contrary to his
pleas, of a single specification of aggravated sexual assault in
violation of Article 120, Uniform Code of Military Justice, 10
U.S.C. § 920. 1 The members sentenced the appellant to
confinement for one year, reduction to pay grade E-1, and a bad-
conduct discharge (BCD). The convening authority (CA) approved
the sentence as adjudged, and, except for the BCD, ordered it
executed.

     The appellant raises three assignments of error (AOEs):
(1) the evidence admitted at trial was legally and factually
insufficient to support a conviction; (2) the CA’s instruction
restricting eligibility for court-martial membership frustrated
the appellant’s right to a properly convened court-martial; and,
(3) the Government’s failure to disclose requested material
related to the member selection process was reversible error.

     We find the evidence presented at trial both legally and
factually sufficient. We find merit, however, in the
appellant’s second AOE, rendering the final AOE moot. We will
take appropriate action in the decretal paragraph.

                                 Background

     During a port call to Dubai, United Arab Emirates, in late
April 2012, the appellant, the alleged victim, Aviation
Boatswain’s Mate (Equipment) Second Class (ABE2) LB, and a
number of other shipmates were staying at a local hotel. On the
evening of 26 April 2012, several of these Sailors, including
the appellant and ABE2 LB, were at the hotel’s pool enjoying
dinner and drinks. Sometime after midnight, the group moved to
the appellant’s room on the second deck, where they continued to
drink and socialize.

     Over the next several hours, ABE2 LB had several vodka
drinks, although the amount of alcohol she consumed is unclear
from the record. By 0200, ABE2 LB’s level of intoxication was
described as “loud, obnoxious, happy . . . slurring a little bit
. . . [but] wasn’t stumbling [or] couldn’t hold her balance.” 2
Around 0230, ABE2 LB lay down on the appellant’s bed and fell
asleep. One attendee began “messing with her, trying to
irritate her” 3 by, for example, messing with her feet. At first,
ABE2 LB, known to be a heavy sleeper, “kind of like just

1
  As the offense allegedly occurred on 27 April 2012, the version of Article
120, UCMJ, in effect from 1 Oct 2007 through 27 June 2012 applies.
2
    Record at 761.
3
    Id. at 762.


                                      2
shrug[ged] it off, but after that, she just——she didn’t respond
to it.” 4

     Shortly thereafter, a female attendee, Master-at-Arms
Second Class (MA2) P, stated they needed to move ABE2 LB to her
own room. With difficulty, MA2 P roused ABE2 LB and told her
she had to go back to her room. 5 Several witnesses described her
at this point as “very intoxicated” 6 and nonresponsive. ABE2 LB
was helped onto Aviation Boatswain’s Mate (Equipment) First
Class (ABE1) O’s back and was carried “piggy-back” to her room
on the fourth deck. ABE1 O described ABE2 LB as “passed out” 7 as
he carried her and “still out” 8 when he laid her in her bed;
video partially confirms and partially contradicts this as it
shows ABE1 O carrying ABE2 LB, but, while opening the door to
her room, putting her down and her standing on her own with the
help of his steadying arm. ABE1 O left ABE2 LB’s room key
beside her bed and departed for his room.

     Ten minutes later, the appellant is seen in security camera
footage in the foyer to ABE2 LB’s door for approximately two
minutes, apparently knocking in an attempt to gain entry. He
asserted he was trying to retrieve a computer power cord he had
loaned ABE2 LB earlier in the port call. There was no answer.
He then went to the front desk and obtained a key to ABE2 LB’s
room. Returning to the fourth deck, he used the key to enter
ABE2 LB’s room.

     At this point the accounts of the appellant and ABE2 LB
diverge. The appellant testified that, as he was getting the
power cord, ABE2 LB called him over to the bed. She then took
his hand and moved it to her vaginal area as he lay down beside
her. After a few minutes she climbed atop him and began “dry-
humping” him; both were still wearing underwear at this point.
The appellant claims ABE2 LB proceeded to remove her underwear
and the pair engaged in consensual sexual intercourse with her
on top. After some minutes she rolled off of him. He was then

4
    Id. at 764.
5
  ABE2 LB did not initially respond to efforts to wake her until MA2 P “got in
her ear and told her, ‘[LB], I need you to get your butt up so that you can
go to your room.’” Id. at 783.
6
    Id. at 821.
7
    Id. at 894.
8
    Id. at 896.


                                      3
surprised when she asked, “Who is this?” and demanded to be
taken to her room. 9 The appellant replied, “It’s Thompson,” and
informed her she was already in her room. 10 ABE2 LB lay on the
bed for a minute before getting up, entering the bathroom, and
then leaving the hotel room.

     ABE2 LB claims she remembered nothing regarding how she got
to her room. She testified that she was awoken by a man having
intercourse with her. When she asked who it was, the man
replied “Thompson.” 11 Although she told him to stop, he flipped
her over and attempted to sodomize her. Screaming from the
pain, she was then flipped back over and the vaginal intercourse
resumed. She testified she then “ran to the bathroom . . .
grabbed a towel and . . . ran out of [her] room to the
elevator,” 12 and went to the room of MA2 P and another friend,
MA2 M. The hotel video shows her leaving the room with a towel
wrapped around her, but does not show her running at any point.
The video then shows the appellant emerging from the room
shortly thereafter——a total of approximately 21 minutes after he
entered ABE2 LB’s room——glancing one direction, then running in
the other.

     ABE2 LB arrived at MA2 P and MA2 M’s room crying and
wearing only a bra and a towel. MA2 P asked ABE2 LB what was
wrong. At first, ABE2 LB did not respond, but eventually
answered affirmatively that someone had touched her. MA2 P then
looked at ABE2 LB’s vagina and observed it was swollen and
“inside out.” 13 After repeated questioning about who had touched
her, ABE2 LB finally responded, “He said his name was
Thompson.” 14

     The appellant, meantime, went to his room, where he
immediately changed his underwear and shirt because he believed
ABE2 LB’s “bodily fluids” 15 would be on them. Shortly
thereafter, when confronted by MA2 P, the appellant denied

9
     Id. at 1304.
10
     Id.
11
     Id. at 934.
12
     Id. at 935.
13
     Id. at 765.
14
     Id.
15
     Id. at 1308.
                                4
having had sex with ABE2 LB, claiming he had been in his room
the entire time.

     ABE2 LB remained in MA2 P and MA2 M’s room the rest of the
night. After ABE2 LB initially insisted on not reporting the
incident and because she expressed that her vagina was throbbing
and in pain, MA2 P and MA2 M helped ABE2 LB take a bath. ABE2
LB repeatedly awoke throughout the night crying and vomiting.

     Although ABE2 LB initially “begged” her friends to just
“leave it alone” 16 and not further inquire into or report the
matter, she eventually reported the incident to law enforcement
authorities the next morning. That evening, she underwent a
Sexual Assault Nurse Examination. The nurse examiner found no
apparent trauma to ABE2 LB’s vagina or anus.

     Subsequent laboratory testing revealed the presence of both
the appellant’s and ABE2 LB’s DNA in the former’s underwear.
The testing also revealed fibers consistent with the appellant’s
underwear were present on ABE2 LB’s underwear.

     Other facts necessary to address the assigned errors will
be provided below:

                           Sufficiency of Evidence

     The appellant’s first AOE focuses on ABE2 LB’s
intoxication, claiming that the evidence did not establish that
she was unable to decline participation in the sexual act. We
disagree.

1.     Legal Sufficiency

     The test for legal sufficiency is whether, considering the
evidence in the light most favorable to the Government, any
rational trier of fact could have found the elements of the
offense beyond a reasonable doubt. United States v. Turner, 25
M.J. 324, 325 (C.M.A. 1987); United States v. Reed, 51 M.J. 559,
561-62 (N.M.Crim.Ct.App. 1999), aff'd, 54 M.J. 37 (C.A.A.F.
2000); see also Art. 66(c), UCMJ.

     The elements of aggravated sexual assault, as charged in
the present case, are: (1) That the accused caused another
person, who is of any age, to engage in a sexual act; and (2)

16
     Id. at 767.
                                      5
that the other person was substantially incapable of declining
participation in the sexual act. MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2008 ed.), Part IV, ¶ 45(c). Here, the testimony of both
the appellant and ABE2 LB as well as forensic evidence support a
finding that a sexual act occurred. The testimony of the
various witnesses, as well as ABE2 LB’s own testimony, supports
a finding of substantial incapability to decline participation.
Thus, we find the evidence to be legally sufficient.

2.     Factual Sufficiency

     The test for factual sufficiency is whether, after weighing
all the evidence in the record of trial and recognizing that we
did not see or hear the witnesses, this court is convinced of
the appellant's guilt beyond a reasonable doubt. Turner, 25
M.J. at 325; see also Art. 66(c), UCMJ. Proof beyond a
reasonable doubt does not mean that the evidence must be free
from conflict. United States v. Goode, 54 M.J. 836, 841
(N.M.Ct.Crim.App. 2001). The fact finder may believe one part
of a witness’ testimony and disbelieve another. Id. When
weighing the credibility of a witness, this court, like a fact
finder at trial, examines whether discrepancies in witness
testimony resulted from an innocent mistake, such as a lapse of
memory, or a deliberate lie. Id. at 844.

     The record undoubtedly raises concerns regarding ABE2 LB’s
credibility. First, during the SANE, ABE2 LB denied having had
consensual sexual intercourse with anyone in the previous five
days. At trial, however, she admitted having had sex with
another man on the day before the events in question. Second,
ABE2 LB provided a sworn statement to the Naval Criminal
Investigative Service in which she claimed, “I have never had
any kind of romantic relationship with Thompson or given him the
idea that I wanted to.” 17 She repeated this denial under oath at
trial. This, however, was contradicted not only by the
appellant, but by two witnesses who testified they personally
observed the appellant and ABE2 LB engaging in sexual activity
in their presence in October 2011. While the specific details
recalled by the witnesses varied, the substance of their
testimony was challenged only by ABE2 LB’s denial.

17
     Id. at 1137.
                                 6
     Nevertheless, the fact she may have been lying about these
two matters does not necessarily lead to the conclusion that she
was lying about the core allegations; having had the opportunity
to observe all the witnesses at trial, the members chose to
believe some parts of her testimony and not others, which they
are free to do. Goode, 54 M.J. at 841. We likewise are
convinced beyond a reasonable doubt. The specification of which
the members convicted the appellant was supported by strong
corroborative, albeit circumstantial, evidence, including not
only ABE2 LB’s well-documented reaction of immediate shock and
distress and prior consistent statements, but the appellant’s
own testimony that after the sexual act, ABE2 LB was not aware
of who he was or even that she was in her own room. It is also
supported by evidence of the appellant’s consciousness of guilt,
from furtively fleeing the scene to changing his clothes to
lying about any sexual encounter with ABE2 LB.

     The appellant further maintains that even setting aside
ABE2 LB’s credibility, evidence regarding her level of
intoxication prior to and following the incident supports that
the appellant had a reasonable mistake of fact. We disagree.
Evidence that half an hour prior to passing out on the
appellant’s bed and immediately following the incident, ABE2 LB
was able to walk without stumbling, for instance, does little to
contradict the evidence that she fell into a deep, alcohol-
assisted sleep and had to be assisted to her room. The
appellant was present as others messed with her as she slept,
then struggled to rouse her and carried her out. The appellant
admitted going to her room shortly after this and knocking on
her door for approximately two minutes with no response, a
further indication of the appellant’s knowledge of ABE2 LB’s
condition. Given all the evidence, we are convinced beyond a
reasonable doubt that the appellant knew or reasonably should
have known that ABE2 LB was incapable of declining participation
in the sexual act.

                     Panel Member Selection

     In his second AOE the appellant avers that members below
the pay grade of E-7, above the pay grade O-5, and all warrant
and chief warrant officers were impermissibly and systematically
excluded from the nomination process by the CA. In July 2008,

                                7
Commander, Naval Air Force Atlantic (COMNAVAIRLANT) issued an
instruction 18 to subordinate commands establishing the procedure
for nominations of prospective court-martial members. That
instruction directed each subordinate command to provide a
certain number of nominees in the grades of O-5, O-4, “LT
[Lieutenant] or Below” and “Enlisted (E7/E8/E9).” 19   The
instruction did not call for nominees below E-7, regardless of
how junior a particular appellant may be, and did not call for
anyone O-6 or above. 20

     We review claims of error in the selection of court-martial
members de novo. United States v. Kirkland 53 M.J. 22, 24
(C.A.A.F. 2000). We look at three primary factors to determine
whether an impermissible member selection has taken place:

        1. Improper motive in packing a member pool;

        2. Systematic exclusion of potential members based on
        rank or other impermissible variable; and,

        3. Good faith attempts to be inclusive and open the
        court-martial process to the entirety of the military
        community

United States v. Dowty, 60 M.J. 163, 171 (C.A.A.F. 2004). If
either of the first two criteria is present, the process is
impermissible. Id. These criteria are not only considered in
the actual panel selection process, but also in the process of
presenting nominations to the CA. United States v. Roland, 50
M.J. 66, 69 (C.A.A.F. 1999).

     In a case of systematic exclusion of members by rank, it is
the responsibility of the defense to establish the improper
exclusion. Kirkland, 53 M.J.at 24. Once improper exclusion has
been shown, the burden shifts to the Government “to demonstrate
that the error did not ‘materially prejudice the substantial

18
     COMNAVAIRLANT Instruction 5813.1H, 29 Jul 2008.
19
     Id. at 2.
20
  It is unclear, as the Government concedes, whether the “LT or Below”
language intended only O-1 to O-3 nominees or permitted nomination of warrant
and chief warrant officers.
                                         8
rights of the accused.’”   Dowty, 60 M.J. at 173 (quoting Art.
59(a), UCMJ).

     We find the appellant has established that the instruction
improperly excluded potential members from the selection process
on the basis of rank. Thus we turn to the Government to
determine if it has met its burden to show lack of harm——and
find it has not. The Government has provided no evidence upon
which this court can conclude the CA properly considered the
Article 25, UCMJ, factors in selecting the members for the
court-martial, or that he knew he was free to select members not
on the list provided by his staff judge advocate (SJA). See
United States v. Nixon, 33 M.J. 433, 435 (C.M.A. 1991)
(exclusion based on rank overcome by “explicit testimony of the
[CA] as to his compliance with the statutory criteria”); United
States v. Roland, 50 M.J. 66, 69 (C.A.A.F. 1999) (no prejudice
from improper, rank-based nomination process where “[t]he record
establishes how the members were selected, and there is no
indication of impropriety”); United States v. Gooch, 69 M.J.
353, 361 (C.A.A.F. 2011) (similar error found to have created no
material prejudice where the record reflects that the SJA
properly advised the CA that he could select members from the
SJA-provided nomination list or select others as he deemed
appropriate, and the CA personally selected the members).

     In its answer, the Government notes that the COMNAVAIRLANT
instruction specifically lists the requirements of Article
25d(2), UCMJ. While that is certainly a good thing, it sheds no
light on what advice the SJA provided the CA, or on the
selection process followed by the CA himself. We therefore find
the Government has failed to meet its burden of showing the
improper exclusion of potential members did not materially
prejudice the appellant.

                            Conclusion

     The findings of guilty and the sentence are set aside. The
record of trial is returned to the Judge Advocate General of the
Navy for remand to an appropriate CA with a rehearing
authorized.

     Senior Judge MCFARLANE concurs.


                                 9
HOLIFIELD, Judge (concurring in part, dissenting in part and in
the result):

     Although I concur in the majority’s conclusion that there
was an improper exclusion of potential members based on rank in
this case, I would not reach that issue because I disagree with
the majority’s conclusion that the evidence presented at trial
is factually sufficient. I therefore respectfully dissent.

     The evidence presented at trial is relatively
straightforward as it pertains to events before and after the
appellant was in Aviation Boatswain’s Mate (Equipment) Second
Class (ABE2) LB’s room on 27 April 2012. The question, of
course, is what happened in the room. With little independent
evidence to corroborate either description of events, the matter
comes down to credibility.

     The appellant’s explanation is, on its face, neither
unreasonable nor unbelievable. ABE2 LB did, in fact, have the
appellant’s computer power cord. Based on their long friendship
and earlier instances where ABE2 LB had given her hotel key to
the appellant so that he could retrieve items from her room, it
is not unreasonable that the appellant believed ABE2 LB would
not mind if he entered her room to reclaim his power cord. It
is also not unreasonable that, given their history, he did not
question ABE2 LB’s apparent invitation to join her in the bed
and engage in sexual activity. Finally, the fact that fibers
similar to those from the appellant’s underwear were found on
ABE2 LB’s underwear tends to support his description of pre-
intercourse activity.

     Furthermore, there are numerous issues with ABE2 LB’s
credibility. First, it appears she perjured herself, both on
the witness stand and in her sworn statement to the Naval
Criminal Investigative Service. Two witnesses with no obvious
motive to fabricate testified that they witnessed the appellant
and ABE2 LB engage in sexual activity six months before the
alleged assault. Yet, ABE2 LB unequivocally denied it. That
she and the appellant had a previous sexual relationship does
not, of course, prove she consented to the sexual activity on 27
April. That she would seem to lie about this point in a court
of law, however, casts doubt on the completeness and accuracy of
her remaining testimony. Second, neither the vague testimony

                               10
regarding ABE2 LB’s alcohol consumption nor the hotel video
supports that ABE2 LB was intoxicated to the extent that her
purported lack of memory would imply. Third, the absence of any
physical evidence to support her claim of being the victim of a
forceful rape and attempted anal sodomy raises questions as to
whether she has embellished the facts to support her allegation.
Similarly, it appears - in both her statement to NCIS and her
answers in the Sexual Assault Nurse Examination report - that
ABE2 LB was selective in what facts she shared, withholding or
denying facts that may have served to undermine her story.

     This court need not be convinced that the appellant’s
description of events is true. As the burden of proof is not
the appellant’s, we need only determine whether the Government
has disproven the appellant’s affirmative defenses of consent
and mistake of fact as to consent beyond a reasonable doubt. I
find it has not. There is very little evidence aside from ABE2
LB’s testimony that challenges the appellant’s claim of consent
or mistake of fact, and the issues surrounding ABE2 LB’s
veracity leave me questioning her version of events.

     After weighing the evidence and judging the credibility of
the witnesses, while noting my statutory obligation to
“recognize that the trial court heard and saw the witnesses,” 1 I
am not convinced of the appellant’s guilt beyond a reasonable
doubt. According, I would set aside the findings and sentence
and dismiss that charge and specification.

                                         For the Court




                                         R.H. TROIDL
                                         Clerk of Court




1
    Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c).
                                        11
