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

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

                   UNITED STATES OF AMERICA

                               v.

                     GERMAINE L. THOMAS
          PRIVATE FIRST CLASS (E-2), U.S. MARINE CORPS

                       NMCCA 201300357
                   GENERAL COURT-MARTIAL

Sentence Adjudged: 18 May 2013.
Military Judge: LtCol Charles A. Miracle, USMCR.
Convening Authority: Commanding General, Training Command,
Quantico, VA.
Staff Judge Advocate's Recommendation: LtCol M.E. Sayegh,
USMC.
For Appellant: LT Jessica L. Ford, JAGC, USN.
For Appellee: LCDR Keith B. Lofland, JAGC, USN; Maj David
N. Roberts, USMC.

                       26 November 2014

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               PUBLISHED OPINION OF THE COURT
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MCFARLANE, Senior Judge:

     A panel of members with officer and enlisted representation
sitting as a general court-martial convicted the appellant,
contrary to his pleas, of one specification of rape and two
specifications of sexual assault, in violation of Article 120,
Uniform Code of Military Justice, 10 U.S.C. § 920. The members
acquitted the appellant of burglary and a third specification of
sexual assault. The members sentenced the appellant to three
years’ confinement, reduction to pay grade E-1, forfeiture of
all pay and allowances, and a dishonorable discharge. The
convening authority approved the sentence as adjudged.

     The appellant raises three assignments of error: (1) that
the military judge committed reversible error by not defining
the element of “force” for a charge of rape committed by
unlawful force; (2) that the military judge abused his
discretion by failing to dismiss, as an unreasonable
multiplication of charges, several sexual assault charges that
arose out of a single criminal act; and (3) that the military
judge erred in calculating the maximum punishment for rape and
sexual assault.

     After careful consideration of the record of trial, the
appellant’s assignments of error, and the pleadings of the
parties, we find the evidence introduced at trial insufficient
to support a conviction for rape. Our decision in this regard
renders moot the appellant's first assignment of error. We also
find merit with the appellant’s second assignment of error.
After taking corrective action in our decretal paragraph, we
conclude that the remaining findings and sentence are correct in
law and fact and that no error materially prejudicial to the
substantial rights of the appellant remains. Arts. 59(a) and
66(c), UCMJ.

                           Background

     The events that are the subject of charges in this case
began during the evening of 27 July 2012, and continued into the
early morning hours of 28 July 2012. Prior to that time, the
victim, Private First Class (PFC) AA, had known the appellant in
a social context, but she denied having had any sexual interest
in him. The appellant characterized their relationship
differently. He testified that both he and PFC AA had
previously expressed mutual sexual interest in one another, and
that they planned to meet in PFC AA’s room to have sex on the
night of the incident after the appellant completed his watch.

     At approximately 2000 on 27 July 2012, PFC AA attended a
party at an off base hotel and consumed alcohol. PFC AA
testified that over the course of two or three hours she had
four mixed drinks and one and a half beers. The record further
indicates that the mixed drinks each contained approximately 3
ounces of vodka (double shots) mixed with 3 ounces of orange
juice. When PFC AA returned to her barracks room at around
0030, she fell asleep on her bed with her clothes on.


                                2
     The appellant, who was on watch until 0200, did not see PFC
AA before she went to sleep. After his watch was over, the
appellant asked PFC QP, the oncoming watchstander for the female
floor of the barracks, to see if PFC AA’s door was open and if
she was awake. PFC QP declined, but did try to text PFC AA on
the appellant’s behalf. When PFC AA failed to answer, PFC QP
told the appellant that PFC AA had “came back drunk” and that
she was probably asleep. Record at 468-69. When the appellant
asked PFC QP if he should have sex with PFC AA, she said “No.
And if he did, that was on him.” Id. at 497.

      Despite PFC QP’s warnings, the appellant left the watch
station and shortly thereafter entered PFC AA’s room. PFC AA has
little memory of the incident that followed, and only recalls
snapshots of a male figure by the bed, someone “directly on or
on top of [her]” having sex with her, and someone helping to put
her clothes back on. Id. at 321.

     Following the incident the appellant made several highly
incriminating statements. Immediately after he left PFC AA’s
room he told PFC QP that he “shouldn’t have had sex with her”
and asked PFC QP “Is that rape?” Id. at 474-75. The appellant
then asked PFC QP to tell PFC AA “the next morning what happened
and tell her that he was sorry.” Id. at 475. Later that day
the appellant met with PFC AA and repeatedly apologized for his
actions. Moreover, when he was interrogated by the Naval
Criminal Investigative Service (NCIS), the appellant admitted
that he took PFC AA’s clothes off, had sexual intercourse with
her, and then tried to redress her. The appellant also told
NCIS: “I basically violated her . . . I think she was still
passed out. . . . her eyes were still closed . . . [she was]
talking in her sleep . . . .” Id. at 285-89. Moreover, the
appellant told NCIS that when PFC AA confronted him the next day
he “felt very low, [he] wanted to throw up [and he] felt like
scum.” Id. at 287.

     Additional facts necessary for the resolution of particular
assignments of error are included below.

              Unlawful Force in the New Article 120

     The appellant’s first assignment of error alleges that the
military judge erred by not instructing the members on the
definition of “force,” for the offense of rape committed by
“unlawful force.” Although we ultimately find the rape
conviction factually insufficient, see infra, we nonetheless
must answer, as a predicate question, how the definitions of

                                3
force and unlawful force related to one another within the new
Article 120, UCMJ.

     As noted above, the offenses in this case are all alleged
to have occurred on or about 27 July 2012. The National Defense
Authorization Act for Fiscal Year 2012 contained changes to
Article 120, UCMJ, which had taken effect by the time of the
appellant's alleged misconduct. Among those changes was a
significant revision to the offense of rape. The new statute
reads as follows:

     (a) Rape. Any person subject to this chapter who
     commits a sexual act upon another person by—

        (1) using unlawful force against that other person;
        (2) using force causing or likely to cause death or
     grievous bodily harm to any person;
        (3) threatening or placing that other person in
     fear that any person will be subjected to death,
     grievous bodily harm, or kidnapping;
        (4) first rendering that other person unconscious;
     or
        (5) administering to that other person by force or
     threat of force, or without the knowledge or consent
     of that person, a drug, intoxicant, or other similar
     substance and thereby substantially impairing the
     ability of that other person to appraise or control
     conduct;

     is guilty of rape and shall be punished as a court-
     martial may direct.

10 U.S.C. § 920(a).

     The new statute also contains definitions for the terms
force and unlawful force. Force is defined as:

     (A) the use of a weapon;
     (B) the use of such physical strength or violence as
     is sufficient to overcome, restrain, or injure a
     person; or
     (C) inflicting physical harm sufficient to coerce or
     compel submission by the victim.

10 U.S.C. § 920(g)(5). “Unlawful force” is defined as “an act of
force done without legal justification or excuse.” 10 U.S.C. §
920(g)(6).

                                4
     In the case at bar, the Government treated “force” and
“unlawful force” as if they were separate, unrelated concepts.
During his closing argument, trial counsel told the members:

     The definitions being “force”. The use of such
     physical strength or violence as is sufficient to
     overcome, restrain, or injure a person. That’s not
     what the government is submitting is the case here.
     The government submits that it is the next one. That
     it’s “unlawful force”: Force done without legal
     justification or excuse. Tell her in the morning it
     was me. He did not have justification nor does he
     have an excuse for why he went in and touched PFC [AA]
     in order to have sex with her.

Record at 806 (emphasis added). The military judge then
instructed the members on the definition of “unlawful force,” 10
U.S.C. § 920(g)(6), but did not instruct them on the statutory
definition of force. 10 U.S.C. § 920(g)(5).

     Contrary to trial counsel’s argument, unlawful force is not
a separate, distinct, and lesser type of force that can sustain
a conviction for rape. Rather, the definitions set forth in
Article 120 must be read together. There must be force, as
defined by the statute, and that force must be unlawful. In
other words, the Government must prove beyond a reasonable doubt
that the accused used a weapon; used such physical strength or
violence as is sufficient to overcome, restrain, or injure a
person; or inflicted physical harm sufficient to coerce or
compel submission by the victim, and that those acts were “done
without legal justification or excuse.” See 10 U.S.C. §
920(g)(5)–(6).

             Factual Sufficiency of the Rape Charge

     Having resolved the type and level of force required for a
rape conviction under the new Article 120, UCMJ, we look to the
record to see if the Government met the burden set forth above.
We find that it did not.

     Under Article 66(c), UCMJ, 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 in the record of trial and
making allowances for not having personally observed the
witnesses,” this court is “convinced of the accused's guilt
beyond a reasonable doubt.” United States v. Turner, 25 M.J.

                                5
324, 325 (C.M.A. 1987). However, reasonable doubt does not mean
the evidence must be free from conflict. United States v.
Rankin, 63 M.J. 552, 557 (N.M.Ct.Crim.App. 2006), aff’d, 64 M.J.
348 (C.A.A.F. 2007).

     Our review of the record fails to discern any evidence that
the appellant used force, as defined in the statute, to commit a
sexual act upon PFC AA. The record shows that she was
intoxicated and asleep, but there is no indication that the
appellant used “strength sufficient to overcome the said [PFC
AA],” as was alleged in the charge sheet. The record did show,
as pointed out by the Government in its’ brief, that the
appellant was on top of PFC AA during the intercourse.
Prosecution Exhibit 1; Government’s Brief of 18 Mar 2014 at 10.
However simply being on top of the other person during a sexual
act, without anything more, is not enough to prove beyond a
reasonable doubt the “use of such physical strength or violence
as is sufficient to overcome, restrain, or injure.” 10 U.S.C. §
920(g)(5). Accordingly, we conclude that the appellant's rape
conviction cannot withstand the test for factual sufficiency and
will set aside that finding of guilty and dismiss that
specification. 1

                Unreasonable Multiplication of Charges

Multiple Charges for Exigencies of Proof

     The appellant argues the military judge abused his
discretion by failing to merge for findings multiple sexual
assault convictions arising out of a single criminal act. We
agree.

      “What is substantially one transaction should not be made
the basis for an unreasonable multiplication of charges against
one person.” RULE FOR COURTS-MARTIAL 307(c)(4), MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2012 ed.). We review five non-exclusive
factors from United States v. Quiroz, 55 M.J. 334, 338-39

1
  As is discussed more fully in a later portion of this opinion, this court
would, given the facts at bar, typically affirm the lesser included offense
of sexual assault committed by causing bodily harm. 10 U.S.C. §
920(b)(1)(B). That offense merely requires an offensive touching, “however
slight, including any nonconsensual sexual act . . . .” 10 U.S.C. §
920(g)(3). However, the appellant was separately charged with, and acquitted
of, that offense. Although the specification the appellant was acquitted of
alleged a different factual basis, i.e. that the appellant “touched [PFC
AA’s] body with his hand,” we believe it prudent, given the appellant’s other
convictions for the same sexual act, to avoid potential double jeopardy
issues. Accordingly, we will dismiss the specification.
                                      6
(C.A.A.F. 2001) to determine whether there is an unreasonable
multiplication of charges: (1) whether the accused objected at
trial; (2) whether each charge and specification is aimed at
distinctly separate criminal acts; (3) whether the number of
charges and specifications misrepresent or exaggerate the
appellant’s criminality; (4) whether the number of charges and
specifications unreasonably increase the appellant’s punitive
exposure; and, (5) whether there is any evidence of
prosecutorial overreaching or abuse in the drafting of the
charges. These non-exclusive factors are weighed together, and
“one or more factors may be sufficiently compelling.” United
States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012).

     “A military judge’s decision to deny relief for
unreasonable multiplication of charges is reviewed for an abuse
of discretion.” Id. at 22 (citing United States v. Pauling, 60
M.J. 91, 95 (C.A.A.F. 2004)) (additional citation omitted).
Within the context of unreasonable multiplication of charges,
the military judge generally has wide discretion to dismiss
offenses, merge offenses, or merge offenses only for purposes of
sentencing. See Id. at 25. However, “when a ‘panel return[s]
guilty findings for [multiple] specifications and it was agreed
that these specifications were charged for exigencies of proof,
it [is] incumbent’ [upon the military judge] either to
consolidate or dismiss [the contingent] specification[s],” not
merely merge then for sentencing purposes. United States v.
Elespuru, 73 M.J. 326, 329-30 (C.A.A.F. 2014) (quoting United
States v. Mayberry, 72 M.J. 467, 467-68 (C.A.A.F. 2013))
(additional citation omitted).

     Although the Government in this case did not concede that
the various sexual assault offenses were pled in the alternative
to deal with contingencies of proof, the record clearly supports
that conclusion. Both remaining aggravated sexual assault
specifications allege the same sexual act, on the same date, and
at the same place. One alleges that the appellant committed the
sexual act while PFC AA was asleep or otherwise unaware; the
other alleges the same sexual act, but while PFC AA was
incapable of consenting due to impairment by an intoxicant.
While we find that it was entirely proper for the Government to
charge the appellant in this fashion, it is not appropriate for
him to stand convicted of two sexual assault offenses based upon
a single criminal act. See Elespuru, 73 M.J. at 329-30;
Campbell, 71 M.J. at 24. Accordingly, we find that the military
judge erred by only merging the offenses for sentencing
purposes.


                                7
Consolidation, Dismissal, and Conditional Dismissal

     When a military judge is presented with findings that
reflect an unreasonable multiplication of charges that cannot be
adequately addressed by merging the charges for sentencing
purposes, the military judge must then decide whether to
consolidate 2 or dismiss the affected specifications. This is a
significant decision that should be carefully considered by the
military judge. Specifically, consideration should be given to
what happens if, on appeal, the remaining offense is set aside.

     Dismissal of a lesser included offense in favor of the
remaining greater offense may be the appropriate remedy where
the unreasonably multiplied offenses stand in a greater-lesser
relationship. In other cases, consolidation may be the more
appropriate remedy as “the findings of guilty as to
[consolidated] specifications are not affected because they
still apply to the portions of the specifications added to the
remaining specification . . . .” United States v. Sorrell, 23
M.J. 122, 122 n.1 (C.M.A. 1986) (emphasis added). Consolidation
is accomplished by simply combining the operative language from
each specification into a single specification that adequately
reflects each conviction. 3

     When consolidation is impracticable, such as when the
guilty findings involve violations of different UCMJ articles,
military judges should consider a conditional dismissal of one
or more findings. Conditional dismissals “become effective when
direct review becomes final in the manner described in Article
71(c), UCMJ” and therefore “protect the interests of the
Government in the event that the remaining charge is dismissed
during [appellate] review.” United States v. Britton, 47 M.J.
195, 203-05 (C.A.A.F. 1997) (Effron, J., concurring).

     Although the use of conditional dismissals has not been
widespread in military jurisprudence, there have been several

2
  As used in this context, there is no difference between the terms “merge”
and “consolidate.” Compare Campbell, 71 M.J. at 23 (discussing a military
judge’s discretion to “merge” offenses that create an unreasonable
multiplication of charges) with Elespuru, 73 M.J. at 329-30 (directing
military judges to consolidate or dismiss such charges when they were pled as
exigencies of proof).
3
  An example of such a specification is contained in our decretal paragraph,
infra. Since this action is being taken by the military judge post-
conviction to rectify an unreasonable multiplication of charges, we do not
find that the resultant duplicitous specification violates RULE FOR COURTS-
MARTIAL 307(c)(4), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.).
                                      8
opinions, issued by both our superior court and our sister
courts, signaling the approval of their use. In his concurring
opinion in Britton, Judge Effron endorsed the use of conditional
dismissals by the appellate courts, and opined that “the power
to order such a conditional dismissal is well within the
inherent authority of appellate courts.” Britton, 47 M.J. at
204. That opinion was later cited by the Air Force Court of
Criminal Appeals when it conditionally dismissed a charge
“subject to final review pursuant to Article 71(c), UCMJ, in
order to allow the government to meet the exigencies of proof .
. . .” United States v. Stanley, 60 M.J. 622, 630
(A.F.Ct.Crim.App. 2004), review denied, 60 M.J. 388 (C.A.A.F.
2004).

     Although the language in Britton might lead one to believe
that only appellate courts have the power to conditionally
dismiss charges, at least two of our sister courts have embraced
their use at the trial court level. In United States v. Woods,
a case that predates the Britton decision by eleven years, the
Army Court of Military Review conditionally dismissed a charge
and its sole specification, and then suggested that:

     In future cases of a similar nature, it might be
     appropriate for the military judge, after completing
     the providence inquiry and duly entering findings of
     guilty to both offenses, to conditionally dismiss the
     less serious offense or the offense which least
     adequately describes appellant’s criminal conduct.
     Dismissal can be accomplished either alone or in
     conjunction with specification consolidation.

21 M.J. 856, 876 n.33 (A.C.M.R. 1986), rev'd on other grounds,
26 M.J. 372 (C.M.A. 1988).

     In United States v. Frazier, 51 M.J. 501 (C.G.Ct.Crim.App.
1999), the Coast Guard Court of Criminal Appeals, sitting en
banc, also endorsed the use of conditional dismissals by trial
judges. In Frazier, the appellant was convicted by a panel of
members of indecent acts, in violation of Article 134, UCMJ, and
with violating an order relating to the same sexual acts, in
violation of Article 92, UCMJ. After the members returned
guilty findings to both offenses, the military judge dismissed
the Article 92 offense “on the condition that it would be
restored should [the] underlying indecent act offense be set
aside on review.” Id. at 502. That condition was then met, and
the validity of the conditional dismissal was tested when the
Coast Guard Court of Criminal Appeals set aside the indecent

                                9
acts conviction. Id. at 505-06. The court first addressed the
question of the trial judges authority, holding that
“[n]otwithstanding the limits” expressed in Britton, there is
“no reason to believe that the trial judge lacks [the]
authority” to enter a conditional dismissal. Id. at 506. The
court then went on to give effect to the trial judge’s ruling by
restoring and affirming the previously dismissed Article 92
violation. Id. at 506-07.

     Like our sister courts, we also believe that trial judges
have the inherent authority to conditionally dismiss a charge or
specification, and should consider the use of such a procedure
where consolidation is impracticable.

     Applying the reasoning set forth above to the case at bar,
we will consolidate the appellant’s two sexual assault
convictions in our decretal paragraph.

             Improper Calculation of Maximum Punishment

     In his third assignment of error, the appellant argues that
the military judge erred when he calculated the maximum
punishment for rape and sexual assault under Article 120, UCMJ.
At the time of his misconduct, the appellant argues, the
President had not defined maximum punishment limitations under
Article 120, UCMJ. Therefore, he contends, the maximum
punishment at his trial was limited to the jurisdictional
maximum of a summary court-martial. Appellant's Brief of 18 Dec
2013 at 18. We disagree.
     Assuming that the appellant did not affirmatively waive
this issue by specifically conceding on the record that the
maximum punishment for rape was life without the possibility of
parole, Record at 863, we conclude that the military judge
correctly determined the maximum punishment. See United States
v. Booker, 72 M.J. 787, 807 (N.M.Ct.Crim.App. 2013), appeal
denied sub nom. United States v. Schaleger, 73 M.J. 92 (C.A.A.F.
2013) (summary disposition). 4
                          Sentence Reassessment

     Because of our action on the findings, we will reassess the
sentence in accordance with the principles set forth in United
States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), United States v.
4
  The appellant acknowledges that our decision in Booker controls; however, he
raises this assignment of error solely to preserve the issue. Appellant's
Brief at 18-19.


                                     10
Cook, 48 M.J. 434, 438, (C.A.A.F. 1998), and United States v.
Sales, 22 M.J. 305, 307-09 (C.M.A. 1986). Although a “‘dramatic
change in the penalty landscape’ gravitates away from the
ability to reassess” a sentence, United States v. Buber, 62 M.J.
476, 479 (C.A.A.F. 2006) (quoting United States v. Riley, 58
M.J. 305, 312 (C.A.A.F. 2003)), we find no such change here.

     While our decision reduces the maximum possible punishment
from confinement for life without the possibility of parole to
confinement for 30 years, both punishments are so far removed
from the three years of confinement actually awarded by the
members as to render the difference legally insignificant. More
importantly, nothing in our decision changes the number or
factual nature of the criminal acts considered by the panel when
they were determining a proper sentence. The members sentenced
the appellant based upon his having committed a single sexual
act upon PFC AA as she lay asleep and intoxicated in her
barracks room. Moreover, they were instructed to consider all
of the convictions that arose out of that single act as one
offense for sentencing purposes. While our decision re-
characterizes the appellant’s offense as a sexual assault,
rather than a rape, that difference, in and of itself, is not
enough to constitute a dramatic change in the penalty landscape.
Finally, the facts adduced on the affirmed charge and
specification provide ample justification for the sentence the
members awarded. Accordingly, we are confident that the members
would have imposed, and the convening authority would have
approved, the previously adjudged sentence to three years’
confinement, reduction to pay grade E-1, forfeiture of all pay
and allowances, and a dishonorable discharge.

                           Conclusion
     The finding of guilty to Specification 1 of Charge II,
rape, is set aside and that specification is dismissed with
prejudice. Specification 2 of Charge II and the sole
specification under the Additional Charge are hereby
consolidated into a single specification to read as follows:

     In that Private First Class Germaine L. Thomas, U.S.
     Marine Corps, Marine Corps Combat Service Support
     School, Training Command, Camp Johnson, North
     Carolina, did, at or near Camp Johnson, North
     Carolina, on or about 27 July 2012, commit sexual acts
     upon Private First Class AA, U.S. Marine Corps, to
     wit: penetrating her vulva with his penis when the
     accused knew or reasonably should have known that

                               11
     Private First Class AA was asleep or otherwise unaware
     that the sexual act was occurring; and penetrating her
     vulva with his penis when the accused knew or
     reasonably should have known that Private First Class
     AA was incapable of consenting to the sexual act due
     to impairment by an intoxicant.

     With this modification, the findings and the sentence are
affirmed.

     Judge HOLIFIELD and Judge BRUBAKER concur.

                                For the Court




                                R.H. TROIDL
                                Clerk of Court




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