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

                            UNITED STATES, Appellee
                                         v.
                           Captain SPENCER D. DORR
                           United States Army, Appellant

                                   ARMY 20170172

                             Headquarters, Fort Hood
                         Jacob D. Bashore, Military Judge
                   Colonel Susan K. Arnold, Staff Judge Advocate


For Appellant: Captain Benjamin A. Accinelli, JA; William E. Cassara, Esquire (on
brief); William E. Cassara, Esquire (on reply brief).

For Appellee: Colonel Steven P. Haight, JA; Captain Jeremy Watford, JA (on brief).

                                      22 May 2019

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                               SUMMARY DISPOSITION
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BURTON, Senior Judge:

       Appellant, serving as a cadre member, oversaw several ROTC students on a
military training event in Vilnius, Lithuania. At the end of the mission, appellant
allowed the cadets to consume alcohol and accompanied some of them to local
restaurants and bars. In this opinion we address whether appellant’s conviction for
sexually assaulting a female cadet is factually sufficient. We find it is not.

       A panel of officers sitting as a general court-martial convicted appellant,
contrary to his pleas, of two specifications of violating a lawful general order, one
specification of sexual assault, and one specification of conduct unbecoming an
officer and a gentleman in violation of Articles 92, 120, and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 892, 920, 933 (2012) [UCMJ]. The panel sentenced
appellant to a dismissal, confinement for seven years, forfeiture of all pay and
DORR—ARMY 20170172

allowances, and a reprimand. This case is now before us for review under Article
66, UCMJ. 1

                                  BACKGROUND

      In June 2016, appellant served as a mission team leader for the Army’s
Cultural Understanding and Language Proficiency (CULP) program in Vilnius,
Lithuania. The eleven cadets under appellant’s charge spent almost a month in
Lithuania participating in military engagements and training. Prior to deploying,
appellant and the cadets were briefed on command policies that prohibited cadre
members from fraternizing with the cadets and the consumption of alcohol while
deployed.

       On 23 June 2016, at the end of the mission, several of the cadets and appellant
went into Vilnius for the evening. Appellant made clear to the cadets they were free
to consume alcohol despite the command policy. Cadet (CDT) CR and two other
cadets had dinner at a restaurant where they each had a glass of wine. Appellant and
two other cadets had dinner at a separate restaurant and they also had a glass of
wine.

        After dinner, CDT CR and another cadet went shopping in town. She
eventually met appellant and other cadets at a bar, the first they would visit that
night. The entourage proceeded to drink as appellant regaled them with tales of his
sexual exploits. Cadet CR drank two shots of a vodka, two Long Island Iced Teas,
and four of five small beers served as part of a beer flight. Other cadets who were
present testified at trial that CDT CR exhibited signs of intoxication, including
slurred speech and consistent laughter. Appellant drank as well and purchased
alcohol for some of the cadets. Appellant testified that while at the bar he was
flirting with CDT CR. The flirting was so intense that at one point, while appellant
was discussing oral sex with CDT CR, he broke a wine glass and cut his hand. After
denying offers of medical attention, appellant and the cadets instead left to go to
another bar.

      After leaving the first bar, the group happened upon a Lithuanian student with
whom they had interacted during the mission and one of her friends. The Lithuanian
women suggested they visit a whiskey bar. After arriving at this, the second, bar,
appellant, CDT CR, CDT SS, and then-Cadet CB continued drinking. CDT CR
drank two “Jack Passions.” While at this bar, appellant and CDT CR flirted with
each other. The intensity of the flirting drew the attention of the Lithuanian women


1
  Our decision grants appellant the relief sought in his first assignment of error and,
thereby, moots two other assigned errors. We find the remaining assignment of error
concerning appellant’s conviction under Article 92, UCMJ, for buying alcohol for
the cadets under his charge lacks merit.


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and CDT SS. When CDT CR went outside to smoke, CDT SS privately admonished
appellant that his conduct with CDT CR was inappropriate and had to stop. Later,
CDT SS similarly admonished CDT CR, who was visibly intoxicated. Cadet CR,
after some apparent difficulty, responded, “I understand. You’re right. Thank you.”
Despite these admonitions, appellant and CDT CR continued with their flirtatious
behavior.

       Ultimately, the group departed the bar at around 0300 on 24 June 2016. By
all accounts, CDT CR was drunk. A closed circuit camera outside of the bar filmed
the group, to include CDT CR and appellant, outside of the bar for about twenty-five
minutes. The government introduced this video as a prosecution exhibit, which we
discuss in detail below.

        After leaving the bar, appellant and Cadets SS, CB, and CR took a taxi to the
barracks. Appellant sat next to CDT CR in the back of the taxi and continued
flirting and touching CDT CR. Appellant and CDT CR entered the checkpoint to the
barracks and walked behind the other cadets. Cadet CR and appellant ended up in
appellant’s room.

       At trial, appellant testified that he and CDT CR engaged in consensual sexual
activity once in his room. Appellant described the encounter in great detail, noting
how it at times became rough and that CDT CR bit him on various parts of his body,
to include giving him visible hickeys on his neck, and caused bruising on parts of
his body. Appellant further testified that he felt guilty because he knew he had
cheated on his wife, who was pregnant at the time; however his sexual desires got
the best of him. The next morning, CDT CR awoke, obtained her clothes, and
returned to her barracks room.

       By contrast, CDT CR testified at trial that the sexual encounter with appellant
was not consensual. However, CDT CR recalled very little that occurred after the
first bar. She didn’t remember much from the second bar other than smoking and the
drinks she had. She did not remember flirting with appellant or having sexually-
charged discussions with appellant over the course of the evening. She remembers
nothing about the sexual interaction with appellant, other than a snippet where
appellant was on top of her, engaged in sexual intercourse, telling CDT CR that she
was beautiful.

                             LAW AND DISCUSSION

       Article 66, 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). We may affirm only those findings of guilt that we find correct in
law and fact and determine, based on the entire record, should be approved. Id.




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DORR—ARMY 20170172

       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). To affirm a
conviction, “after weighing the evidence in the record of trial and making
allowances for not having personally observed the witnesses, [we must be]
convinced of [appellant’s] guilt beyond a reasonable doubt.” United States v.
Turner, 25 M.J. 324, 325 (C.M.A. 1987).

      We are not so convinced of appellant’s guilt of sexual assault.

       Appellant was charged with sexually assaulting CDT CR when she was
incapable of consenting due to her impairment by alcohol. See Manual for Courts-
Martial, United States (2016 ed.) [MCM], pt. IV, ¶ 45.b.(3)(f); UCMJ art.
120(b)(3)(f). For purposes of Article 120(b)(3), UCMJ, “incapable of consent”
means an individual lacks “the cognitive ability to appreciate the nature of the
conduct in question, [or] the mental and physical ability to communicate a decision
regarding that conduct to the other person.” United States v. Pease, 74 M.J. 763,
770 (N.M. Ct. Crim. App. 2015), aff’d 75 M.J. 180 (C.A.A.F. 2016). See also
United States v. Solis, 75 M.J. 759, 763 (N.M. Ct. Crim. App. 2016) (Article 120
(b)(3) “does not proscribe sexual acts with impaired people, but rather with people
incapable of consenting to the conduct at issue because of their impairment–and
even then, only when the inability to consent is known, or reasonably should be
known, to the accused.”).

        We have no doubt appellant committed a sexual act on CDT CR; appellant
testified to this fact at trial. We also find CDT CR was credible and that she truly
believed she did not consent to any sexual act with appellant. We cannot find
beyond a reasonable doubt, however, that CDT CR was incapable of consent when
the sexual act occurred. Key to our assessment is the twenty-five minute video
taken outside the second bar, just before appellant and CDT CR returned to the
barracks.

      On the one hand, this video, with other testimony, clearly established CDT
CR’s impairment from her consumption of alcohol. Cadet CR is shown in the video
stumbling and swaying at different times, sometimes getting support by leaning on
appellant. Without question, she was drunk.

       On the other hand, the video shows CDT CR conversed with appellant and
cadets in the group, lit and smoked some cigarettes, navigated a curb by the street a
number of times without falling, put her arm back in a sling she received for a
previous injury, and even assisted appellant in donning his coat. Further, CDT CR is
shown on the video reentering the bar and later returning to the group without
assistance. When appellant drops something on the ground, CDT CR bends over to
assist him in picking it up. Towards the end of the video, just before the group left



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DORR—ARMY 20170172

to catch a taxi, CDT CR leaned over and kissed appellant on the cheek. In short,
despite her intoxication, CDT CR demonstrated her ability to understand her
surroundings and freely interact with those around her, to include appellant.

        Even though the video demonstrated her cognitive abilities prior to returning
to the barracks, CDT CR, as she testified at trial, remembers little or nothing that
occurred at the second bar, and later, in appellant’s room. That lack of memory,
however, does not equate with an inability to consent. When considering the video
along with other evidence, such as the hickeys spotted by others on appellant’s neck
later that day, we simply cannot conclude beyond a reasonable doubt that appellant
is guilty of sexual assault.

       This is a difficult decision for us, as appellant’s conduct towards CDT CR was
opportunistic and reprehensible on many levels. His conduct falls far short of what
is expected of an officer in charge of cadets or soldiers. Nonetheless, we find the
finding of guilty as to the Specification of Charge III factually insufficient.
                                   CONCLUSION

     The Specification of Charge III and Charge III is SET ASIDE and
DISMISSED. The remaining findings of guilty are AFFIRMED.

       We are able to reassess the sentence on the basis of the errors noted and do so
after conducting a thorough analysis of the totality of circumstances presented by
appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Sales, 22 M.J. 305 (C.M.A. 1986), and United States v.
Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013).

       In evaluating the Winckelmann factors, we first find a significant change in
the penalty landscape, as the maximum period of confinement dropped from life
without the possibility of parole to five years. However, this one factor is not
dispositive. Id. at 15. We have extensive experience and familiarity with the
remaining offenses and can reliably determine that the members would have
sentenced appellant to at least a dismissal and a reprimand without the dismissed
specification. We therefore AFFIRM only so much of the sentence as extends to a
dismissal and a reprimand.

      Judge HAGLER and Judge FLEMING concur.

                                        FOR THE
                                        FOR THE COURT:
                                                COURT:




                                        MALCOLM H. SQUIRES, JR.
                                        Clerk of Court


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