               U NITED S TATES AIR F ORCE
              C OURT OF C RIMINAL APPEALS
                            ________________________

                                 No. ACM 39045
                            ________________________

                               UNITED STATES
                                   Appellee
                                         v.
                       Nicholas B. STATHATOS
                 Airman Basic (E-1), U.S. Air Force, Appellant
                            ________________________

           Appeal from the United States Air Force Trial Judiciary
                              Decided 22 June 2017
                            ________________________

Military Judge: Lyndell M. Powell.
Approved sentence: Dishonorable discharge, confinement for 8 years, and for-
feiture of all pay and allowances. Sentence adjudged 9 December 2015 by GCM
convened at Kirtland Air Force Base, New Mexico.
For Appellant: Major Jarett Merk, USAF.
For Appellee: Major Matthew J. Neil, USAF; Major Mary Ellen Payne, USAF;
Major Meredith L. Steer, USAF; Captain Matthew L. Tusing, USAF; Gerald
R. Bruce, Esquire.
Before MAYBERRY, JOHNSON, and SPERANZA, Appellate Military Judges.
Senior Judge JOHNSON delivered the opinion of the court, in which Senior
Judge MAYBERRY and Judge SPERANZA joined.
                            ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4
                            ________________________

JOHNSON, Senior Judge:
    A military judge sitting as a general court-martial convicted Appellant, con-
trary to his pleas, of one specification of rape, five specifications of assault, and
one specification of communicating a threat, in violation of Articles 120, 128,
                  United States v. Stathatos, No. ACM 39045


and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920, 928, 934.
The military judge sentenced Appellant to a dishonorable discharge, confine-
ment for eight years, and forfeiture of all pay and allowances. The convening
authority approved the sentence as adjudged.
    On appeal, Appellant asserts the evidence is factually and legally insuffi-
cient to sustain his convictions. We disagree and affirm.

                               I. BACKGROUND
    Appellant was stationed at Kirtland Air Force Base (AFB), New Mexico,
when he met the victim, ADS, in April of 2010. ADS was 17 years old at the
time. They married in March 2011. In June 2011, ADS became pregnant, and
in December she gave premature birth to a daughter by caesarian section.
    In February 2012, Appellant and ADS got into an argument because Ap-
pellant wanted to have sexual intercourse but ADS did not because it was still
painful for her. After ADS had gone to sleep, Appellant woke her up by grab-
bing her arm, pinning it to the bed, and running his other hand along her body.
ADS moved away from him, sat up, and slapped him. Appellant then slapped
ADS, causing her nose to bleed. ADS responded by picking up her cell phone
and attempting to leave the room, telling Appellant she was going to call the
police. Appellant then grabbed the phone away from her, seized her by the
throat, and pushed her down on the bed. As Appellant immobilized her, he told
ADS if she “told anybody” what had happened he would kill her, their daugh-
ter, and then himself. Appellant then pulled down ADS’s clothing and raped
her.
    In early May of 2012, Appellant and ADS hosted another couple, Senior
Airman (SrA) DR and his wife JR, at their off-base apartment. ADS did not
drink alcohol that night because she was nursing their daughter; the other
adults were drinking. Appellant and ADS got into an argument over Appel-
lant’s desire to smoke his hookah in the living room. At one point, Appellant
followed ADS into the bedroom, away from the guests, and struck her in the
chest, knocking her down into a pile of clothes in the closet. Appellant followed
ADS back into the living room where JR was drawn into the confrontation.
Soon thereafter Appellant ordered the guests to leave.
    After they left, SrA DR and JR called the Albuquerque police and requested
they respond because Appellant was “really drunk” and ADS needed assis-
tance. In the meantime, as ADS was walking between the bathroom and bed-
room, Appellant seized her from behind and locked his arm around her neck.
Appellant slowly tightened his hold, causing ADS’s ears to ring and her vision
to get dark. At that moment they heard a knock at the door. Appellant told



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                  United States v. Stathatos, No. ACM 39045


ADS, “If that’s the cops you’re going to die.” Appellant then released her, re-
treated to the bedroom, and closed the door. ADS answered the door and spoke
with two police officers. She acknowledged there had been an argument earlier,
but told them everything was currently “fine,” and that Appellant and the baby
were sleeping. The police departed. She later testified she did not report being
assaulted or threatened because she thought Appellant might spare her if she
kept him out of trouble, and because she did not think the police could help
her.
    Appellant and ADS moved into housing on Kirtland AFB in May 2012. One
evening in July 2012, ADS was in the bathroom brushing her teeth. Appellant,
who had been drinking, entered and asked her if she wanted to have sex. ADS
told him she did not, because they had been arguing earlier. Appellant became
angry. He left but soon returned with a pistol. He placed the tip of the barrel
against the side of ADS’s head. ADS testified that as he held it there, Appellant
made a “creepy . . . serial killer grin kind of look” into the bathroom mirror.
ADS was too frightened to move, and she urinated on herself. Appellant then
held the pistol to his own head and continued to grin into the mirror. He then
set the pistol down on the bathroom counter and walked out. ADS hid the pistol
in a closet.
    ADS testified that for the next year, every time Appellant “got drunk I kind
of tried to slip into the woodwork and just do everything that he asked whether
it be sex when I didn’t want to, I agreed to everything because I was afraid that
he would do something violent.” She further testified she thought her daughter
“deserved to have a dad and I felt that I could maybe try to get a little bit of
normalcy for her . . . if I gave a good front and if I did everything that I was
asked maybe everything would be okay.”
    However, in August or September of 2013 Appellant and ADS had another
argument that culminated in Appellant grabbing, twisting, and threatening to
break ADS’s ankle. In December of 2013, during another argument, Appellant
grabbed ADS’s wrist and twisted it painfully behind her back. Later that
month ADS noticed severe pains in her wrist when she tried to pick up the
family’s dog. Soon thereafter, ADS tripped on the stairs and broke her fall with
her wrist. The injury to her wrist eventually required surgery. Again, ADS did
not report the assault; to her doctors, she attributed the injury to picking up
her dog or to falling on the stairs.
    Finally, one night in June 2014 Appellant returned to the house drunk in
the early hours of the morning. Appellant woke ADS and asked her about hav-
ing sex. ADS said she did not want to have sex. Appellant became angry and
noisy, shouting profanities as he went upstairs. This awoke the couple’s daugh-
ter, who had been downstairs sleeping with ADS. The daughter crawled up the
stairs to see Appellant, and ADS followed. Appellant and ADS argued some

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                  United States v. Stathatos, No. ACM 39045


more, and Appellant told ADS to leave the room. When ADS bent down to pick
up the daughter, Appellant seized ADS by the throat and pushed her into the
closet, causing her head to hit the closet door before she fell to the floor. Appel-
lant choked ADS and yelled at her in front of their screaming daughter before
he eventually let her go.
    The following month, Appellant attempted suicide. As a result, ADS met
with Master Sergeant (MSgt) M, Appellant’s acting first sergeant. Although
ADS had never reported the abuse she suffered from Appellant, and did not
intend to do so when she entered the meeting, MSgt M noticed a bruise on
ADS’s leg. When he inquired about it, ADS told him she received it while hik-
ing. Suspicious, MSgt M asked ADS whether she was in an abusive household.
ADS reluctantly admitted that she was. Two weeks later, MSgt M referred her
to the base Family Advocacy office, which referred her to the Air Force Office
of Special Investigations (AFOSI) when she told them about the rape.

                                 II. DISCUSSION
A. Standard of Review
    We review issues of factual and legal sufficiency de novo. Article 66(c),
UCMJ, 10 U.S.C. § 866(c); United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002). Our assessment of legal and factual sufficiency is limited to
the evidence produced at trial. United States v. Dykes, 38 M.J. 270, 272 (C.M.A.
1993).
    The test for legal sufficiency of the evidence is “whether, considering the
evidence in the light most favorable to the prosecution, a reasonable factfinder
could have found all the essential elements beyond a reasonable doubt.” United
States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987); see also United States v. Hum-
pherys, 57 M.J. 83, 94 (C.A.A.F. 2002). The “reasonable doubt” standard does
not require that the evidence be free from conflict. United States v. Lips, 22
M.J. 679, 684 (A.F.C.M.R. 1986). “[I]n resolving questions of legal sufficiency,
we are bound to draw every reasonable inference from the evidence of record
in favor of the prosecution.” United States v. Barner, 56 M.J. 131, 134 (C.A.A.F.
2001).
    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, [we are] convinced of the [appellant]’s guilt beyond a reasonable
doubt.” Turner, 25 M.J. at 325; see also United States v. Reed, 54 M.J. 37, 41
(C.A.A.F. 2000). In conducting this unique appellate role, we take “a fresh, im-
partial look at the evidence,” applying “neither a presumption of innocence nor
a presumption of guilt” to “make [our] own independent determination as to



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                  United States v. Stathatos, No. ACM 39045


whether the evidence constitutes proof of each required element beyond a rea-
sonable doubt.” Washington, 57 M.J. at 399.
B. Analysis
    The military judge convicted Appellant of the following specification of rape
in violation of Article 120, UCMJ:
       [Appellant] did, at or near Albuquerque, New Mexico, between
       on or about 1 February 2012 and on or about 31 March 2012,
       cause [ADS] to engage in a sexual act, to wit: penetrating her
       vulva with his penis, by placing her in fear that she would be
       subjected to death or grievous bodily harm.
    Appellant was also convicted of the following specifications of assault in
violation of Article 128, UCMJ:
       [Appellant] did, at or near Albuquerque, New Mexico, between
       on or about 1 April 2012 and on or about 31 May 2012, unlaw-
       fully strike [ADS] on the chest with his hands.
       [Appellant] did, at or near Albuquerque, New Mexico, between
       on or about 1 July 2012 and on or about 31 August 2012, assault
       [ADS] by pointing a firearm at her head.
       [Appellant] did, at or near Albuquerque, New Mexico, between
       on or about 1 August 2013 and on or about 30 September 2013,
       unlawfully twist the foot of [ADS] with his hands.
       [Appellant] did, at or near Albuquerque, New Mexico, between
       on or about 1 December 2013 and on or about 31 January 2014,
       unlawfully twist the wrist of [ADS] with his hands.
       [Appellant] did, at or near Albuquerque, New Mexico, between
       on or about 1 June 2014 and on or about 31 July 2014, unlaw-
       fully grab [ADS] by the throat with his hands.
    Finally, the military judge also found Appellant guilty of the following spec-
ification of communicating a threat in violation of Article 134, UCMJ:
       [Appellant] did, at or near Albuquerque, New Mexico, between
       on or about 1 April 2012 and on or about 31 May 2012, wrong-
       fully communicate to [ADS] a threat to kill her if the cops were




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                   United States v. Stathatos, No. ACM 39045


       at the door, such conduct being of a nature to bring discredit
       upon the armed forces. 1
    Essentially, Appellant argues ADS’s testimony is unsupported and insuffi-
ciently credible to sustain his convictions. Certainly, the essential evidence of
Appellant’s guilt was the testimony of ADS, who testified to the events de-
scribed above. However, the Government introduced other evidence as well.
    The Government offered the expert medical testimony of Major (Dr.) WC,
an orthopedic surgeon who explained the injury to ADS’s wrist that required
surgery could have been caused by having it twisted as ADS described. How-
ever, he agreed the injury could also have been caused by a fall. The Govern-
ment also called Dr. HR, a forensic psychologist who testified regarding coun-
terintuitive behavior by victims of domestic violence, including reasons why a
victim may not report the abuse.
    In addition, the Government called SrA DR to testify. Although he did not
witness any physical violence during the May 2012 incident, his testimony sup-
ported ADS’s account in several respects. He confirmed Appellant and ADS did
go into the bedroom at one point. He confirmed they were arguing that night,
and that Appellant was “aggravated, condescending,” and “pissed off” towards
ADS. He further testified that when his wife JR tried to intervene, Appellant
“got in her face” and became “threatening” toward her. Finally, he testified that
Appellant did ask him and JR to leave, and that he then called the police be-
cause he thought ADS “needed help.”
   The Government introduced several other items of evidence, including a
recording of SrA DR’s call to the Albuquerque police; a civilian police report
describing the call and the officers’ visit to Appellant’s residence; Appellant’s
base firearms registration form, indicating Appellant did keep a pistol in his
on-base residence; and a text message exchange between Appellant and ADS
on 23 July 2014—after his suicide attempt—wherein he wrote:
       [I] know you hate me. [I] don’t blame you either. I guess [I] usu-
       ally ask to [sic] much. . . . I know leaving wasnt [sic] easy but
       thats [sic] the wall we hit. Things happened that were out of con-
       trol. Im [sic] so sorry about everything. I wont [sic] stop saying
       that.
    Appellant contends that by the time ADS reported the crimes, she had ini-
tiated divorce and child custody proceedings against Appellant, and therefore
had a strong motive to fabricate allegations. However, several factors undercut

1 The military judge made this finding by exception and substitution, excepting the
words “injure her if she reported him to law enforcement” from the original specifica-
tion and substituting in their place the words “kill her if the cops were at the door.”


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                 United States v. Stathatos, No. ACM 39045


the force of this argument. The evidence indicates ADS never planned to accuse
Appellant of abuse. His crimes came to light only because MSgt M, with whom
she was meeting in the aftermath of Appellant’s suicide attempt, noticed the
bruise on her leg and challenged her initial innocent explanation. Even then,
ADS did not make a report to law enforcement but merely accepted MSgt M’s
referral to Family Advocacy counseling. It was only when the counselor there
recognized that what ADS was describing was a sexual assault that ADS was
referred to AFOSI. In addition, the pattern of threats and physical abuse ADS
described, coupled with the reasons she related for not reporting, and illumi-
nated by Dr. HR’s testimony regarding behavior of victims of domestic violence,
provide a very credible explanation as to why she did not report the abuse ear-
lier. Moreover, it is unlikely ADS felt she required rape or assault allegations
to gain the upper hand in child custody proceedings in the wake of Appellant’s
suicide attempt.
    Appellant also emphasizes, inter alia, the absence of eyewitnesses other
than ADS to the offenses; the absence of contemporaneous evidence of injuries
ADS suffered in the assaults, other than the wrist surgery; Dr. WC’s acknowl-
edgment that ADS’s wrist could have been injured in a fall; postings ADS made
on social media websites depicting a happy domestic life; and testimony from
another noncommissioned officer that in the summer of 2014 ADS told him
that, although she felt unsafe around Appellant, he had never hurt her. In our
view, none of these arguments significantly undermine the evidence support-
ing Appellant’s convictions. Drawing “every reasonable inference from the ev-
idence of record in favor of the prosecution,” Barner, 56 M.J. at 134, the evi-
dence was legally sufficient to support Appellant’s convictions beyond a rea-
sonable doubt. Moreover, having weighed the evidence in the record of trial
and having made allowances for not having personally observed the witnesses,
we are convinced of Appellant’s guilt beyond a reasonable doubt. See Turner,
25 M.J. at 325. Appellant’s conviction is therefore both legally and factually
sufficient.




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                    United States v. Stathatos, No. ACM 39045


                                   III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. 2 Ar-
ticles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and sentence are AFFIRMED.


                   FOR THE COURT



                   KURT J. BRUBAKER
                   Clerk of the Court




2 We note an error in the promulgating order with respect to the language of the Spec-
ification of Charge III, where it incorrectly reports the words substituted by the mili-
tary judge. Specifically, the order reports the military judge substituted “kill her if she
reported him to law enforcement,” when in fact he found Appellant guilty of the sub-
stituted words “kill her if the cops were at the door.” We direct the publication of a
corrected court-martial order to remedy this error.


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