             UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                              UNITED STATES

                                                          v.

                             Senior Airman DEANDREA D. ATWATER
                                       United States Air Force

                                                   ACM 38425

                                                16 October 2014

            Sentence adjudged 23 March 2013 by GCM convened at Minot Air Force
            Base, North Dakota. Military Judge: Natalie D. Richardson.

            Approved Sentence: Bad-conduct discharge, confinement for 6 months,
            and reduction to E-1.

            Appellate Counsel for the Appellant: Captain Michael A. Schrama.

            Appellate Counsel for the United States: Major Daniel J. Breen;
            Major Roberto Ramírez; and Gerald R. Bruce, Esquire.

                                                       Before

                                     HECKER, WEBER, and TELLER
                                        Appellate Military Judges

                                         OPINION OF THE COURT

                         This opinion is subject to editorial correction before final release.



TELLER, Judge:

       A panel of officer and enlisted members convicted the appellant, contrary to his
pleas, of aggravated sexual assault in violation of Article 120, UCMJ, 10 U.S.C. § 920.1,2


1
  The appellant was originally charged with one specification of rape by force of Airman First Class (A1C) MN, one
specification of aggravated sexual assault of another Airman, and unlawful entry into the room of the second
Airman. The appellant was acquitted of the aggravated sexual assault and unlawful entry involving the other
Airman and found guilty of the lesser included offense of aggravated sexual assault of A1C MN.
2
  The appellant was charged with violations of Article 120, UCMJ, 10 U.S.C. § 920, as it applied to offenses
committed between 1 October 2007 and 27 June 2012. See Article 120, UCMJ, 10 U.S.C. § 920 (2006) (amended
The court sentenced him to a bad-conduct discharge, confinement for 6 months, and
reduction to E-1. The convening authority approved the sentence as adjudged.

       The appellant argues: (1) the evidence was factually insufficient to convict him of
aggravated sexual assault; and (2) unreasonable delay in post-trial processing deprived
him of his due process rights. Finding no error materially prejudicial to the substantial
rights of the appellant occurred, we affirm.

                                               Background

      The conviction in this case arose out of a sexual encounter between the appellant
and Senior Airman (SrA) MN on 15 October 2011.3 The two had arranged a date to see a
movie together, and SrA MN then accompanied the appellant back to a friend’s on-base
house where he was staying. The appellant’s and SrA MN’s accounts of the events that
followed differ substantially.

       According to SrA MN, while she willingly participated in some foreplay, she
never consented to sexual intercourse. She testified she went back to the house with the
appellant and lay down on the bed with him. They kissed for some time, and she felt his
penis with her hand. When he began to reach down her pants, she tried to push his hand
away. He then began trying to pull her pants down. According to SrA MN, she grabbed
the front of her pants in an effort to prevent the appellant from pulling them down, but he
raised her legs onto his shoulders and pulled her hips off the bed, enabling him to pull off
her pants despite her efforts. The appellant then began to have sexual intercourse with
SrA MN despite her telling him to stop. She tried to push him off and punched at him,
but his body weight pressing down on her prevented her from escaping. He told her to
relax and that she was tense, and he continued to have sex with her. At some point prior
to ejaculation, the appellant did stop and let SrA MN get up. She yelled at him for having
sex with her after she told him to stop. She then put her pants back on, gathered her
belongings, and left. A DNA expert testified that none of the appellant’s DNA was
recovered from either the vaginal swabs collected from SrA MN later that day or from
her underwear.

       On both direct and cross-examination, SrA MN’s description of events was
incomplete. She could not remember whether she felt the appellant’s penis through his
clothes or put her hand down his shorts. Nor could she describe exactly how her pants
came off. She also could not recall exactly when or why the appellant stopped having
sex with her.


by National Defense Authorization Act for Fiscal Year 2006, Pub. L. No. 109–163, 119 Stat. 3136) (superseded by
National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, 125 Stat. 1298).
3
  At the time of the offense, Senior Airman MN was an A1C, but she had been promoted to Senior Airman by the
time of trial.


                                                      2                                            ACM 38425
        In contrast, the appellant testified the sexual intercourse was consensual but
SrA MN became upset when he told her he was still married. According to the appellant,
after they lay down on the bed and began kissing, SrA MN reached inside his pants and
began to feel his penis. He tried to put his hands inside her pants, but they were too tight.
He testified that she unbuttoned her pants to allow him to reach inside and digitally
penetrate her and that they both took off their shirts and kissed for a period of time before
he took off her pants. According to the appellant, when SrA MN’s pants would not come
off easily, she raised her legs into a vertical position to allow him to remove them. He
then left the bed and retrieved a condom from an adjacent room. As he was putting on
the condom while standing next to the bed, SrA MN removed her underwear. The
appellant testified they resumed kissing, then engaged in sexual intercourse, and he
stopped the sexual intercourse when SrA MN said “that’s enough.” According to the
appellant, the two cuddled for a while until the subject of his son and his marriage came
up. The appellant told SrA MN he “wasn’t looking for anything serious at the time
because [he] . . . was married” and “[they] shouldn’t do this again.” After he said this,
SrA MN immediately got dressed and left without explanation.

      In addition to SrA MN’s testimony, the Government admitted evidence of text
messages sent between the appellant and SrA MN, as well as a pretext phone call
arranged by law enforcement.

       Soon after SrA MN left the house, the appellant sent her a series of text messages,
most of which she ignored. SrA MN also testified that the appellant repeatedly tried to
call her during this period. At 0116, shortly after SrA MN left the house, the following
text message exchange occurred:

              [Appellant:] I know your not gonna answer I just wana
                           apologize foe whatever went wrong idk I’m just
                           lost

              [SrA MN:]     I had to punch u for u to actually stop and get
                            off me

                            thats sad

       At 0129 it continued:

              [Appellant:] I didn’t even fell you punch me at all like I’m
                           lost I would like to talk to you for a min

              [SrA MN:]     no ur good… gn

              [Appellant:] I’m begging you to talk now


                                              3                                    ACM 38425
                         I f[****]d this one up bad

      Later at 0257, after other messaging, SrA MN confronted the appellant
more directly:

            [SrA MN:]    no.. u didn’t here me tellin u stop and feel me
                         pushin u off and u still didn’t f[****]n stop…
                         people would consider that s[**]t rape”

            [Appellant:] Whoa did I really?

            [SrA MN:]    good bye

       The appellant sent four more requests to talk with SrA MN, then at 0303
continued:

            [Appellant]: I really don’t know what else to do. You saying
                         I raped you really hurts

            [SrA MN:]    well what do u wanna call it.. if im constantly
                         tellin u to stop and u still don’t stop and im
                         pushin u off and still nothing.. so what you call
                         that??

            [Appellant:] You right I’m wrong

       The appellant sent several more messages from 0312 to 0950, during which time
SrA MN occasionally responded by telling him to stop texting her. At 1032, SrA MN
continued:

            [SrA MN:]    so im contemplating if i should tell someone
                         about wat happened last night or not

            [Appellant:] Really [M]?

                         I think we should talk about it and see where
                         things went wrong

            [SrA MN:]    what do you mean where things went wrong??
                         for one u didnt stop wen i told you to stop.
                         while u was tryn to take my pants off u was
                         pullin them off anyways.. i was pushin u off and


                                          4                                  ACM 38425
                            u still didnt stop.. even wen i did that little
                            punch and said stop u said are u serious i told u
                            yea and u still didn’t stop… so u tell me what
                            didn’t go wrong

              [Appellant:] When I was taking of your pants I couldn’t get
                           them off then I felt like you raised your legs up
                           so they would come off easier that’s just how
                           itook it

              [SrA MN:]     no dre u couldn’t get them off because I was
                            holdin on to them for dear life YOU raised my
                            legs up

              [Appellant:] I guess things just happened to fast idk. I
                           understand you not wanting to talk to me
                           anymore but this isn’t something we can’t
                           workout

              [SrA MN:]     no they happened to fast because u wouldn’t
                            f[****]n listen to me wen I said stop.. i told u
                            before we even got to the base. don’t try no
                            funny s[**]t because ur not gonna get far.. so u
                            forced the s[**]t

       SrA MN reported the incident to authorities later that day. That night, SrA MN
contacted the appellant via text message to set up a pretext phone call at the request of the
Air Force Office of Special Investigations (AFOSI). Judging from the break in text
messages, the call lasted approximately 35 minutes.

       Although the call was not recorded, an AFOSI investigator listened in while it
was occurring.      During the call, the appellant offered several general, equivocal
apologies. The investigator testified that towards the end, SrA MN asked a series of
specific questions:

              She had asked him if he was sorry for forcing her to have sex
              with him and he said “Yes.” She had asked him, you know,
              “Are you just saying this?” “Is this just something you are
              saying just to appease me, or do you really mean it?” At that
              point he gave an affirmative, [“]Yeh, I’m sorry, you know,
              I’m sorry for all of it.[”]

       At trial, the appellant explained that he only apologized to satisfy her:


                                              5                                    ACM 38425
             Like I said, she said “Just apologize to me.” I said, “I
             apologize.” And she was like; she said “Are you just saying
             that because you are sincere? Or are you just saying that
             because I am just telling you to say that,” or “Are you saying
             that because you are sincere?” I said, “I apologize.” That’s
             what I said.

                                  Factual Sufficiency

       We review issues of factual 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 and making allowances for not having observed the witnesses, we
ourselves are convinced of the appellant’s guilt beyond a reasonable doubt. United States
v. Reed, 54 M.J. 37, 41 (C.A.A.F. 2000) (citing United States v. Turner, 25 M.J. 324, 325
(C.M.A. 1987)). Applying these standards to the record in this case, we find the evidence
factually sufficient to support the findings of guilt.

       Under the version of Article 120, UCMJ, in effect at the time of the offense,
aggravated sexual assault as a lesser included offense of rape by force had two elements:
“(1) causing another to engage in a sexual act, and (2) causing bodily harm.”
United States v. Alston, 69 M.J. 214, 216 (C.A.A.F. 2010). Both parties agree that the
appellant and SrA MN engaged in a sexual act, specifically intercourse. The question
presented is whether the evidence is factually sufficient that the appellant caused the
intercourse by bodily harm. Article 120(t)(8), UCMJ, defined bodily harm as “any
offensive touching of another, however slight.” In proving the offensive nature of the
touching, the Government had the burden of proving beyond a reasonable doubt that the
alleged victim did not consent. See States v. Ignacio, 71 M.J. 125, 125–26 (C.A.A.F.
2012) (per curiam).

       Despite SrA MN’s lack of recollection as to parts of the encounter, her version of
events matches the circumstantial evidence more closely and has greater credibility. If
the appellant’s version of the events were true, we believe he would have contested the
repeated allegations and assertions SrA MN made in the text messages. On five distinct
occasions in text messages sent within twelve hours of the alleged offense, SrA MN
unequivocally asserted that the appellant did not stop despite her resistance to sexual
intercourse. The closest the appellant came to disputing her assertions was the single
reply: “Whoa, did I really?” In contrast to that equivocal question, the appellant either
minimized (“I guess things just happened to [sic] fast”) or apologized (“I f[****]d this
one up bad”; “You[’re] right I’m wrong”) after every other assertion. We also accord
some weight to the testimony regarding the pretext phone call. Although the appellant’s
desire to mollify SrA MN is apparent from the testimony, it is also clear he did not
disagree with SrA MN when she said he forced her to have sex with him. When


                                            6                                  ACM 38425
combined with the consistency between the assertions in the text messages and
SrA MN’s testimony at trial, we find her version of events more believable. Having
weighed all the evidence in the record of trial and made allowances for not personally
observing the witnesses, we are convinced of the appellant’s guilt beyond a reasonable
doubt.

                                     Post-Trial Delay

        The appellant asserts he is entitled to relief because the Government violated his
due process right to timely post-trial processing of his case when 143 days elapsed after
trial before the convening authority took action.

        We review claims that an appellant was denied his due process right to speedy
post-trial processing de novo. United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F.
2006). In conducting this review, we assess the four factors laid out in Barker v. Wingo,
407 U.S. 514, 530 (1972): “(1) the length of the delay; (2) the reasons for the delay;
(3) the appellant’s assertion of the right to timely review and appeal; and (4) prejudice.”
Id. (citing United States v. Jones, 61 M.J. 80, 83 (C.A.A.F. 2005); Toohey v.
United States, 60 M.J. 100, 102 (C.A.A.F. 2004)). There is a presumption of
unreasonable delay when the convening authority does not take action within 120 days of
the completion of trial. Id. at 142.

       The appellant’s trial concluded on 23 March 2013. The convening authority took
action on 13 August 2013, 143 days after the court-martial ended. As the convening
authority’s action did not take place within 120 days of the completion of trial, the length
of the delay is unreasonable on its face and we proceed to an analysis of the remaining
three Barker factors.

                                  Reasons for the delay

       This factor weighs in favor of the appellant. While the record of trial was
pending, the court reporter responsible for producing the transcript was engaged in the
reporting and transcription of other cases, including an administrative discharge board.
The transcript was not completed until 10 July 2013, 109 days after the court-martial
ended. We recognize that this record of trial was somewhat lengthy (1102 pages) and
find no personal fault with the court reporter. However, it is the Government’s obligation
to produce the record in a timely manner, including the dedication of sufficient resources
to conduct and transcribe multiple cases when necessary.

            The appellant’s assertion of the right to timely review and appeal

      This factor weighs strongly in favor of the appellant. Beginning on 4 June 2013,
the appellant, through his defense counsel, asserted his right to timely post-trial


                                             7                                    ACM 38425
processing in order to pursue meaningful clemency. The appellant submitted three more
demands for timely processing over the next seven weeks.

                                         Prejudice

       In Barker, the Supreme Court recognized a framework to analyze the prejudice
factor in a speedy trial context, and the Moreno court adopted this framework in
analyzing claims of prejudice arising from post-trial delay. See Moreno, 63 M.J. at 138.
Under this framework, we analyze whether the following interests of the appellant have
been prejudiced: “(1) prevention of oppressive incarceration pending appeal;
(2) minimization of anxiety and concern of those convicted awaiting the outcome of their
appeals; and (3) limitation of the possibility that a convicted person’s grounds for appeal,
and his or her defenses in case of reversal and retrial, might be impaired.” Id. The
appellant argues that the delay in post-trial processing prevented him from effectively
seeking a reduction in confinement, but he does not assert any particular anxiety or
concern nor any other limitation in his ability to seek appellate relief.

       The appellant asserts that the delay prevented him from submitting his request for
clemency “until his sentence was all but completed.” Such confinement, however, is
only oppressive if he succeeds on his substantive claim either in this court or with the
convening authority. See United States v. Arriaga, 70 M.J. 51, 58 (C.A.A.F. 2011). The
substantive claim for clemency was—like the appellant’s assignment of error before this
court—that the evidence was factually insufficient to support the trial court’s findings.
The convening authority did not grant clemency based on that argument. We also found
no merit in this claim. Absent any other evidence of oppressive conditions of
confinement, we do not find the appellant’s incarceration, which was ultimately not in
excess of what the convening authority approved, oppressive.

        In making a determination whether a particular delay deprived an appellant of a
due process right to speedy appellate review, we balance the four factors set out above.
Moreno, 63 M.J. at 136. Although the delay in this case was long enough to trigger the
Moreno presumption of excessive delay, it only exceeded the standard by 23 days. While
the Government is responsible for this delay, it was a procedural failure rather than a
bad-faith effort to frustrate this appellant’s rights. The appellant’s demand for timely
post-trial processing, while raised early and persistently, must be considered in the
context of the actual length of the delay in this case. Against those factors, we weigh the
absence of any actual showing of prejudice against this appellant. Although he was
delayed in being able to submit his request for clemency, the convening authority
ultimately declined to grant that request. On these facts, we find that the delay did not
constitute a due process violation.




                                             8                                    ACM 38425
      We are also mindful of our authority to grant relief under United States v. Tardif,
57 M.J. 219 (C.A.A.F. 2002) and Article 66(c), UCMJ, 10 U.S.C. § 866(c), even in the
absence of prejudice. We decline to do so here.

                                                  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.4 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


                 STEVEN LUCAS
                 Clerk of the Court




4
 We note the court-martial order (CMO) incorrectly states that the appellant was arraigned as an “AIRMAN FIRST
CLASS.” In fact, at the time of trial the appellant was a Senior Airman. Prior to arraignment, the charge sheet was
amended to reflect this. We order promulgation of a corrected CMO.


                                                        9                                             ACM 38425
