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

                               No. ACM 39142
                          ________________________

                            UNITED STATES
                                Appellee
                                      v.
                         Clint A. WILLIAMS
             Senior Airman (E-4), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary

                           Decided 6 March 2018
                          ________________________

Military Judge: Tiffany M. Wagner.
Approved sentence: Dishonorable discharge, confinement for 6 months,
and reduction to E-1. Sentence adjudged 7 May 2016 by GCM convened
at Hanscom Air Force Base, Massachusetts.
For Appellant: Major Jarett F. Merk, USAF.
For Appellee: Major Cara Condit, USAF; Major Tyler B. Musselman,
USAF; Major Mary Ellen Payne, USAF; Major Meredith L. Steer, USAF;
Gerald R. Bruce, Esquire.
Before MAYBERRY, MINK, and DENNIS, Appellate Military Judges.
Chief Judge MAYBERRY delivered the opinion of the court, in which
Judge MINK and Judge DENNIS joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                       ________________________
MAYBERRY, Chief Judge:
   Appellant was found guilty by a panel of officer members, contrary to his
pleas, of two specifications of sexual assault and one specification of abusive
sexual contact in violation of Article 120, Uniform Code of Military Justice
                  United States v. Williams, No. ACM 39142


(UCMJ), 10 U.S.C. § 920. 1 The court-martial sentenced Appellant to a dishon-
orable discharge, confinement for six months, and reduction to the grade of E-
1. The convening authority approved the sentence as adjudged, after deferring
the reduction in rank until the date of action and waiving mandatory forfei-
tures for a period of six months or until Appellant’s release from confinement,
whichever was sooner, for the benefit of Appellant’s wife and two children.
   Appellant raises one assignment of error for consideration on appeal: The
evidence is legally and factually insufficient as to Specification 4 of the Charge
because there was no evidence that Appellant digitally penetrated Airman
First Class (A1C) AC-M 2 while she was awake. We agree to the extent that the
evidence does not support a finding of digital penetration, but the evidence
does support an attempt by Appellant to digitally penetrate A1C AC-M while
she was awake.

                                I. BACKGROUND
    Appellant’s convictions involve a single complainant, A1C AC-M, and con-
cern events that occurred on the morning of 26 April 2015 at Senior Airman
(SrA) KP’s apartment. Appellant does not challenge his conviction for kissing
A1C AC-M on her face with his mouth and touching her breasts with his hand
with the intent to gratify his sexual desire without her consent. Appellant also
does not challenge his conviction for digitally penetrating her vagina with his
finger when he knew or reasonably should have known A1C AC-M was asleep.
Appellant challenges his conviction only to the extent that there was any evi-
dence to support two separate findings of digital penetration of A1C AC-M,
specifically because there was no evidence that Appellant digitally penetrated
her while she was awake.
    Appellant was married with two children. A1C AC-M was not his wife, nor
were they involved in a romantic relationship. Appellant and A1C AC-M were
both assigned to the same squadron and had common friends, including SrA
KP. On the evening of 25 April 2015, SrA KP invited Appellant and A1C AC-
M to SrA KP’s home. The get-together was a simple gathering of friends, with
a plan to drink and play some games. A1C AC-M testified that she intended to
spend the night at the home because of its distance from Hanscom Air Force
Base, where she lived. Four people were at SrA KP’s apartment on the night
in question, and the court members heard evidence as to what took place from


1The court members also found Appellant not guilty of two specifications of sexual
assault in violation of Article 120, UCMJ.
2By the time of trial A1C AC-M had been promoted to Senior Airman (SrA) but we will
refer to her rank at the time of the charge.


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                  United States v. Williams, No. ACM 39142


each of those individuals. Everyone had been drinking, and A1C AC-M was the
first to go to bed. Neither SrA KP nor his boyfriend personally observed any of
the conduct giving rise to the Charge and its Specifications.
    A1C AC-M testified that the others were already drinking and eating pizza
when she arrived around 2230 hours. She considered Appellant a good friend.
That night, like on many other previous occasions, they discussed various is-
sues in their lives, including A1C AC-M’s relationship with SrA FA. Sometime
after the sun was coming up, A1C AC-M went to sleep on an air mattress in
the living room. When she awoke, she was lying on her back with her pants
and underwear down at her knees. Appellant was lying next to her with his
fingers inside her vagina. A1C AC-M testified as follows:

       Q: So, what did you do when you wake up and you realize his
       fingers are inside of you?
       A: I turned over to my side.
       ...
       Q: When you turned to your side, did his fingers come out of
       you?
       A: Yes.

       Q: And what did he do next?
       A: I know he continued to try to finger me from the position that
       I was in. I guess you could say from behind.
       ...
       Q: So, when you turned, you said that his fingers came out of
       you and you are kind of turning away from him kissing you,
       what happened next after you turned?
       A: He continued to try to insert his fingers into my vagina.

       Q: And did he – did he stop kissing you on your body or – I
       mean, what else was going on, if anything, at the time?
       A: No. He didn’t try to kiss me again after I had moved. It was
       just more of him, again, trying to, I guess, finger me you could
       say.

       Q: And what was your reaction to that?
       A: I tried to pull in my body closer, so I was in the fetal position
       and I tried to – maybe I could put my feet in the way so he
       wouldn’t have access anymore.

       Q: So, were you successful when you tried to move away?
       A: No.
       ...
       Q: And, when did he stop?


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                     United States v. Williams, No. ACM 39142


          A: He continued to try to finger me…

(Emphasis added).

    A1C AC-M further testified that she did not leave SrA KP’s apartment until
around noon on 26 April 2015, after an unknown amount of time had passed
since Appellant stopped touching her. Appellant was still asleep on the air
mattress when she departed. In the days following the get-together, A1C AC-
M relayed various versions of what took place to a number of people. Those
versions included that she woke up to find her pants unbuttoned and Appellant
masturbating and trying to touch her; that she could not fight him off because
she was in and out of sleep; that she woke up on her side; that she woke up to
Appellant’s fingers inside of her and him trying to take off her pants, where
she was trying to fight him off, but her body was numb; 3 and that she woke up
to Appellant pulling her pants and underwear down, then touching her vaginal
area, at which time she said “no,” got up, and then left.
    Appellant was interviewed by the Air Force Office of Special Investigations
(AFOSI) approximately two weeks after the alleged assault. From the outset
of the interview Appellant asserted that he had significant memory issues
stemming from a motorcycle accident a few years prior. Appellant further
stated that the accident left him with traumatic brain injury and cognitive im-
pairment and that he was currently taking prescription medications as a re-
sult. The AFOSI interview lasted almost four and one half hours, and for the
better part of three hours, Appellant repeatedly told AFOSI that he had no
memory of the night in question after consuming the last round of alcoholic
shots.
    Although Appellant did not testify at trial, almost three and one half hours
of the video of his AFOSI interview was played in open court for the members.
Appellant told AFOSI he learned of the allegations on 27 April 2015, when a
trusted friend, SrA FA (A1C AC-M’s ex-boyfriend), informed him of what A1C
AC-M had alleged. Additionally, Appellant told AFOSI, “if they said it’s true,
then it’s true . . . I don’t remember any of it.” The lead AFOSI agent told Ap-
pellant that the agent did not believe Appellant did not remember and that
Appellant was hiding behind his accident and memory lapses.
    Three hours into the interview, Appellant admitted he inserted his fingers
into A1C AC-M’s vagina while she was sleeping. He went on to state that at
some point A1C AC-M woke up, but “she kind of moved . . . [he didn’t] think
her eyes were open . . . she was probably asleep . . . [he] thought she woke up



3   The recipient, SrA FA interpreted this to mean there was a physical struggle.


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                   United States v. Williams, No. ACM 39142


during . . . just stayed there.” Appellant also provided a sworn written state-
ment and wrote,
       A strange urge came over me to try to wake her up by a sexual
       sensation. So I unbuttoned her pants and withdrew them to her
       knees. I slid my fingers down and began to finger her vagina.
       After a few minutes, I slid my fingers into her vagina deep . . . I
       used my left index finger and right middle finger to penetrate
       the vagina.
    SrA FA testified that when he confronted Appellant with the allegations,
Appellant looked shocked and confused and was shaking but never denied any
of the allegations. Appellant’s DNA was found inside A1C AC-M’s bra. While
there was semen found in A1C AC-M’s underwear, the DNA was not consistent
with Appellant’s. The members were not instructed on any lesser included of-
fenses (LIOs). During deliberations on findings, the members requested A1C
AC-M’s testimony be replayed for them, including the part of the testimony
excerpted above and referencing the two sexual acts. The members also asked
for a transcript of Appellant’s AFOSI video interview starting at the 3:08 time
mark because they were having difficulty hearing the sound on the laptop pro-
vided to them. 4

                                  II. DISCUSSION
A. Law
   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) (citing Jackson v. Virginia,
443 U.S. 307, 319 (1979)); see also United States v. Humpherys, 57 M.J. 83, 94
(C.A.A.F. 2002). The term “beyond a reasonable doubt” does not mean that the
evidence must be “free from conflict.” United States v. Lips, 22 M.J. 679, 684
(A.F.C.M.R. 1986) (citing United States v. Steward, 18 M.J. 506 (A.F.C.M.R.
1984)). “[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) (citations omitted).
   The test for factual sufficiency is whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed




4 Ultimately, external speakers were provided to the members to allow them to listen
to the video interview in the deliberation room so there was no need for a transcript.


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                  United States v. Williams, No. ACM 39142


the witnesses, the court is convinced of the Appellant's guilt beyond a reason-
able doubt. United States v. Reed, 54 M.J. 37, 41 (C.A.A.F. 2000) (quoting
Turner, 25 M.J. at 325 (C.M.A. 1987)).
    “[A]n appellate court may disapprove a finding because proof of an essential
element is lacking or, as a result of instructional errors concerning lesser-in-
cluded offenses, may substitute a lesser-included offense for the disapproved
findings. This is true even if the lesser-included offense was neither considered
nor instructed upon at the trial of the case.” United States v. Upham, 66 M.J.
83, 88 (C.A.A.F. 2008) (quoting United States v. McKinley, 27 M.J. 78, 79
(C.M.A. 1988); but see United States v. McCracken, 67 M.J. 467, 468 (C.A.A.F.
2009) (“[A]n appellate court may not affirm an included offense ‘on a theory not
presented to the’ trier of fact.”).
B. Analysis
    Appellant was charged with two separate instances of digital penetration
of A1C AC-M, one while he knew or should have known that she was asleep
and one while she was awake and did not consent. The members convicted
Appellant of both. Appellant asserts on appeal that the evidence introduced at
trial consisted only of a single instance of digital penetration—while A1C AC-
M was asleep.
    While A1C AC-M provided differing details regarding some aspects of what
she alleged Appellant did to her, details regarding the offenses of which he was
convicted were corroborated by Appellant’s statements to AFOSI. There was
evidence of penetration while she was asleep and efforts by Appellant to again
digitally penetrate her vagina after she awoke. The only issue is whether his
finger actually penetrated. We agree with the Government that Appellant’s
statement that he used fingers on two different hands supports A1C AC-M’s
contention that she changed positions. However, we are not persuaded that the
mere changing of position alone supports a conclusion that Appellant pene-
trated her after she moved. Instead, after making allowances for not having
personally observed the witnesses, we find A1C AC-M’s testimony that Appel-
lant kept trying to re-insert his fingers into her vagina more significant than
Appellant’s statement to AFOSI that he used two different fingers. Based on
the evidence presented at trial, neither we nor a reasonable factfinder could be
convinced of Appellant’s guilt beyond a reasonable doubt to a second digital
penetration after A1C AC-M woke up. We find the evidence both legally and
factually insufficient to sustain the conviction for the second penetration of-
fense.
    Despite determining the evidence was legally and factually insufficient to
sustain the conviction for the second penetration offense, we nonetheless af-
firm so much of the finding that includes an LIO. See Article 59(b), UCMJ, 10


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                  United States v. Williams, No. ACM 39142


U.S.C. § 859(b). An act done with the specific intent to commit an offense and
amounting to more than mere preparation and tending, even though failing, to
effect its commission is an attempt to commit that offense. Article 80(a),
UCMJ, 10 U.S.C. § 880(a). As a result, we find that the evidence was factually
and legally sufficient to sustain a conviction for the LIO of attempted sexual
assault for the second penetration offense.
C. Sentence Reassessment
    Having set aside a finding of guilty to one of the specifications, we must
now “determine what sentence the court-martial would probably have ad-
judged if the error had not been committed at trial.” United States v. Davis, 48
M.J. 494, 495 (C.A.A.F. 1998). This court has “broad discretion” when reas-
sessing sentences. United States v. Winckelmann, 73 M.J. 11, 12 (C.A.A.F.
2013). Our superior court has held that a court of criminal appeals can reas-
sess a sentence to cure the effect of prejudicial error where that court can be
confident “that, absent any error, the sentence adjudged would have been of at
least a certain severity.” United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986).
    In determining whether to reassess a sentence or to order a rehearing, we
consider the totality of the circumstances with the following as illustrative fac-
tors: (1) dramatic changes in the penalty landscape and exposure, (2) the fo-
rum, (3) whether the remaining offenses capture the gravamen of the criminal
conduct, (4) whether significant or aggravating circumstances remain admis-
sible and relevant, and (5) whether the remaining offenses are the type with
which we as appellate judges have the experience and familiarity to reliably
determine what sentence would have been imposed at trial. Winckelmann, 73
M.J. at 15–16.
    Because of our finding of guilty for an LIO, there is no change in the penalty
landscape. Under the totality of the circumstances, we are confident we can
reliably determine that the members would have imposed no less than the
same sentence whether Appellant was convicted of two specifications of sexual
assault or one specification of sexual assault and one of attempted sexual as-
sault. Our finding did not involve the exclusion of evidence resulting in an en-
tire offense being removed from the members’ purview or a reduction to a less
culpable state of mind. It simply involved an assessment as to whether the
evidence established actual penetration vice attempted penetration. The evi-
dence of Appellant’s culpability and the harm inflicted on A1C AC-M remained
exactly the same. We conclude that sentence reassessment is appropriate in
this case.
    The adjudged sentence consisted of a dishonorable discharge, confinement
for six months, and reduction to the grade of E-1. The dishonorable discharge




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                  United States v. Williams, No. ACM 39142


is mandatory in this case. The members asked the military judge if the dishon-
orable discharge disqualified Appellant from Veteran’s Affairs (VA) support
and benefits, going on to ask if there was any sentence they could impose that
left Appellant’s VA benefits intact. Appellant remains convicted of one specifi-
cation of sexual assault and one specification of abusive sexual contact in vio-
lation of Article 120, UCMJ. We find him guilty of one specification of at-
tempted sexual assault. We reassess the sentence to be the same as the sen-
tence adjudged.

                               III. CONCLUSION
    The finding of guilty of Specification 4 of the Charge alleging sexual assault
is SET ASIDE, substituting therefor a finding of guilty to the LIO of attempted
sexual assault. All other findings are affirmed.
   The findings, as modified, and the sentence, as reassessed, are correct in
law and fact, and no error materially prejudicial to the substantial rights of
the appellant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a),
866(c). They are accordingly AFFIRMED.


                 FOR THE COURT



                 CAROL K. JOYCE
                 Clerk of the Court




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