UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                        CAMPANELLA, HERRING, and PENLAND
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                         v.
                   Private First Class PETER GONZALEZ, JR.
                          United States Army, Appellant

                                    ARMY 20150080

                            Headquarters, Fort Stewart
                         John T. Rothwell, Military Judge
            Colonel Luis O. Rodriguez, Staff Judge Advocate (pretrial)
         Colonel Peter R. Hayden, Staff Judge Advocate (recommendation)
      Lieutenant Colonel Brian J. Chapuran, Staff Judge Advocate (addendum)

For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA;
Captain Amanda R. McNeil Williams, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Melissa Dasgupta Smith, JA; Captain Christopher A. Clausen, JA (on
brief).


                                    31 January 2017

                               ----------------------------------
                                SUMMARY DISPOSITION
                               ----------------------------------

Per Curiam:

       In this case we find, after a fresh and impartial look at the evidence and
taking into account the fact that the trial court saw and heard the witnesses, that the
evidence supporting appellant’s convictions for sexual contact are factually
insufficient. Accordingly, we overturn and vacate the judgment of the trial court.

      A panel of officers and enlisted members sitting as a general court-martial
convicted appellant, contrary to his pleas, of two specifications of abusive sexual
contact, in violation of Article 120, Uniform Code of Military Justice, 10 U.S.C.
GONZALEZ–ARMY 20150080

§ 920 (2012 & Supp. I 2012) [hereinafter UCMJ]. 1 The convening authority
approved the adjudged sentence of a bad-conduct discharge and confinement for
ninety days.

       We review this case under Article 66, UCMJ. Appellant asserts the evidence
is legally and factually insufficient to sustain his convictions of abusive sexual
contact. We agree as to factual sufficiency. 2

                                  BACKGROUND

        Private E-2 (PV2) KG and her roommate, Specialist (SPC) NB, decided to
have a party in their barracks room due to duty being cancelled for the next day as
an ice storm approached Fort Stewart. Approximately five soldiers were in
attendance, though the number varied throughout the night. All of the attendees
were under the age of twenty-one. Appellant was one of the attendees. He and
PV2 KG were close friends, having attended basic and advanced individual training
together. Both appellant and PV2 KG played beer pong at the party. Private KG
testified she had a side beer during the beer pong game and also had multiple shots
of whiskey mixed with an espresso drink.

        Several hours into the party, PV2 KG began to feel sick to her stomach.
Appellant and another attendee at the party, JT, assisted PV2 KG to the bathroom
where she threw up. Private KG was then assisted to her bed. Appellant placed a
trashcan beside her bed in case she felt sick again. Appellant told JT he could leave
as appellant would stay with PV2 KG and make sure she was alright. Specialist NB
left the room to spend the night with another soldier. Appellant had stayed in
PV2 KG’s room on a prior occasion. Private KG then fell asleep. At some point
during the night, appellant rolled over on top of PV2 KG and began to kiss her on
the mouth. He also kissed her on the neck. Appellant stopped without PV2 KG ever


1
  The panel also found appellant not guilty of violating Article 128, UCMJ, to wit:
unlawfully holding the hands of PV2 KG above her head with his hands (Charge II
and its Specification); and not guilty of violating Article 120, UCMJ, touching the
breasts of PV2 KG with his hands when PV2 KG was incapable of consenting to the
sexual contact due to impairment by an intoxicant to wit: alcohol (Charge I,
Specification 1). In addition, appellant was found not guilty of three specifications
of violating Article 120, UCMJ, sexual contact by causing bodily harm (Additional
Charge I, Specifications 1-3). These three specifications were apparently charged in
the alternative to the three specifications of sexual contact while PV2 KG was
incapable of consenting.
2
 Additionally, we have considered the matters personally asserted by appellant
under United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find no need to
comment further upon those matters.


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GONZALEZ–ARMY 20150080

saying anything. Private KG did not report the incident because she feared getting
in trouble for underage drinking.

        At trial, PV2 KG testified that she was feeling the effects of alcohol but was
not drunk that night. She believed her upset stomach was caused by having little to
eat that day and drinking espresso mixed with whiskey, something she had never
done before. She recalled the events of the evening, including being assisted to the
bathroom and then bedroom by appellant and JT. Private KG stated she went to bed
because she was tired, not because she was drunk. On cross-examination, she
testified that she was able to walk on her own and could have made it to her bed
without assistance. Appellant rolling over on top of her was what woke her up that
night. When she woke up, she was dizzy, nauseous, and felt like the room was
spinning. She recalled appellant kissing her on the mouth and then on the neck. She
was able to speak once she woke up, but did not say anything to appellant. She
“kind of nudged him” to get him off of her and appellant stopped his advances.

      Special Agent (SA) RM testified about his interview with appellant.
Appellant admitted to kissing PV2 KG on the mouth and neck. He referred to her
condition as both “asleep” and “drunk” at the time he began to kiss her. In
appellant’s sworn statement to SA RM, when asked if he had “ever engaged [in]
sexual activities with PV2 [KG] while knowing she was impaired or asleep,”
appellant replied, “yes, kissing.” Appellant said he realized what he was doing was
wrong and stopped. He later told PV2 KG he knew what he did was wrong and
apologized to her.

      JT described PV2 KG as being drunk when he and appellant assisted her to the
bed. He observed her dry heaving as she lay on the bed. He left soon thereafter
when appellant said he would take care of her.

      Specialist NB testified PV2 KG started to feel sick after playing beer pong
and taking several shots of liquor. She believed PV2 KG felt sick because she had
consumed too much alcohol. Specialist NB recalled PV2 KG going to the bathroom
and then to the bedroom. When SPC NB left for the evening, PV2 KG was sitting on
her bed with appellant. Specialist NB returned to the room between 0500 and 0600
the next morning. Appellant and PV2 KG were both there.

                              LAW AND ANALYSIS

      Article 66(c), UCMJ, provides:

             In a case referred to it, the Court of Criminal Appeals may
             act only with respect to the findings and sentence as
             approved by the convening authority. It may affirm only
             such findings of guilty and the sentence or such part or



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GONZALEZ–ARMY 20150080

             amount of the sentence, as it finds correct in law and fact
             and determines, on the basis of the entire record, should
             be approved. In considering the record, it may weigh the
             evidence, judge the credibility of witnesses, and determine
             controverted questions of fact, recognizing that the trial
             court saw and heard the witnesses.

UCMJ art. 66(c). Accordingly, this court has an independent duty to review the
record and determine whether it is correct in law and fact.

       Appellant asserts the government failed to prove beyond a reasonable doubt
that PV2 KG was incapable of consenting to the sexual act due to impairment by an
intoxicant, to wit: alcohol. After thoroughly reviewing the evidence in this case, we
agree.

       We are led to this conclusion for a simple reason—the evidence fails to
establish beyond a reasonable doubt that PV2 KG was incapable of consenting due to
impairment by an intoxicant. As the government concedes in its brief, shortly after
the initial physical contact by appellant, PV2 KG was aware of what was happening
and able to communicate and make decisions. That leaves the real issue before this
court—why was she initially incapable of consenting?

       Significant to our decision is the use of the terms “drunk” and “asleep”
throughout the trial, as if the two are interchangeable. They are not. They are
separate and distinct theories of criminality. 3 Appellant describes PV2 KG as both
“drunk” and “asleep.” Private KG testified she went to bed because she was tired,
not because she was drunk. Special Agent RM asked appellant if he had ever
engaged in sexual activities with PV2 KG when she was “impaired or asleep.” The
trial counsel began the opening statement to the panel quoting from the appellant’s
interview with SA RM, “I started to make out with her while she was asleep.”

       To prevail at trial, the government bears to burden of proving its theory of
criminality beyond a reasonable doubt. The proof must be such as to exclude every
fair and rational hypothesis except that of guilt. While the evidence establishes that



3
 Appellant was initially charged under three different theories of sexual contact.
Those theories were: by causing bodily harm without consent; while asleep; and
while incapable of consenting due to impairment by an intoxicant, to wit: alcohol.
For unexplained reasons, the specifications alleging sexual contact while asleep
were dismissed by the government prior to referral. Consequently, this theory was
never before the panel.




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GONZALEZ–ARMY 20150080

the initial touching of PV2 KG by appellant was while she was incapable of
consenting, it is not clear whether this was because she was asleep or intoxicated.

      After taking into account all the evidence presented in this case, we find the
evidence does not prove appellant’s guilt beyond a reasonable doubt. 4

                                   CONCLUSION

       In view of the foregoing, the findings of guilty and the sentence are set aside.
The Charge and its specifications are DISMISSED. All rights, privileges, and
property, of which appellant has been deprived by virtue of the findings and
sentence set aside by our decision, are ordered restored. See UCMJ arts. 58b(c),
75(a).

                                            FOR THE COURT:




                                            MALCOLM H.
                                            MALCOLM     H. SQUIRES,
                                                           SQUIRES, JR.
                                                                    JR.
                                            Clerk of
                                            Clerk of Court
                                                     Court




4
  In conducting our analysis, we are required “to evaluate not only the sufficiency of
the evidence but also its weight.” United States v. Turner, 25 M.J. 324, 325 (C.M.A.
1987). Article 66(c), UCMJ, states that we should “recogniz[e] that the trial court
saw and heard the witnesses.” This court followed the mandates of Article 66(c),
UCMJ, and our superior court in reaching our decision. Our ruling overturning
findings of guilt on factual sufficiency grounds was not undertaken lightly and
decreed only after lengthy consideration of the law and with the utmost respect for
the role of the court-martial panel in our system of justice.


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