 This opinion is subject to administrative correction before final disposition.




                                 Before
                    TANG, LAWRENCE, and STEPHENS,
                        Appellate Military Judges

                           _________________________

                             UNITED STATES
                                 Appellee

                                        v.

                      Eduardo A. HERRERA
         Aviation Machinist’s Mate Second Class (E-5), U.S. Navy
                               Appellant

                               No. 201800062

                             Decided: 17 April 2020 1

       Appeal from the United States Navy-Marine Corps Trial Judiciary

                                 Military Judge:
                                 Stephen Reyes

   Sentence adjudged 19 October 2017 by a general court-martial con-
   vened at Fleet Activities Yokosuka, Japan, consisting of officer and
   enlisted members. Sentence approved by the convening authority:
   reduction to pay grade E-1, confinement for 90 days, and a bad-
   conduct discharge.

                               For Appellant:
                  Lieutenant Daniel E. Rosinski, JAGC, USN




   1 Following release of our initial opinion on 5 September 2019, Appellant submit-
ted a timely request for reconsideration. Granting reconsideration, we have
withdrawn our initial opinion.
                 United States v. Herrera, NMCCA No. 201800062
                               Opinion of the Court

                                  For Appellee:
                    Lieutenant Clayton S. McCarl, JAGC, USN
                      Lieutenant Kimberly Rios, JAGC, USN
                         Major Clayton L. Wiggins, USMC
              Lieutenant Commander Timothy C. Ceder, JAGC, USN

   Judge LAWRENCE delivered the opinion of the Court, in which Sen-
   ior Judge TANG and Judge STEPHENS joined.

                                 _________________________

             This opinion does not serve as binding precedent,
              but may be cited as persuasive authority under
               NMCCA Rule of Practice and Procedure 30.2.

                                 _________________________

LAWRENCE, Judge:
    A panel of members with enlisted representation sitting as a general
court-martial convicted Appellant, contrary to his pleas, of one specification
of abusive sexual contact in violation of Article 120, Uniform Code of Military
Justice [UCMJ]. 2 The members acquitted Appellant of two other specifica-
tions under the sole charge alleging rape and sexual assault of the same
victim.
    Appellant raises three assignments of error [AOEs] 3: (1) the military
judge plainly erred by improperly instructing the court-martial members;
(2) the trial defense counsel [TDC] was ineffective for failing to object to this
instruction; and (3) the evidence is factually insufficient. We find no
prejudicial error and affirm.

                                     I. BACKGROUND

    The victim, Hospitalman [HN] KT, and Appellant met and became platon-
ic friends through playing on opposite teams in an on-base bowling league.
Over time, Appellant and HN KT engaged in occasional conversations on
social media platforms.




   2   10 U.S.C. § 920 (2012).
   3   We have reordered the AOEs.




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              United States v. Herrera, NMCCA No. 201800062
                            Opinion of the Court

    On 16 April 2016, Appellant drank alcoholic beverages as he played
softball. He then continued to drink more alcohol that evening at the base
enlisted club. At trial, Appellant testified that, due to his intoxication, he had
no recollection of anything that happened from the time he was at the
enlisted club until he awoke the next morning.
   HN KT testified that she and Appellant exchanged social media messages
while she was babysitting off the base that night. In their messages, they
agreed that Appellant would come over to her barracks room upon her return
and they would watch a movie together.
    Shortly after midnight, HN KT sent a message to Appellant to let him
know that she had returned to her barracks room. When Appellant arrived,
he smelled of alcohol, slurred his speech, leaned against the door, and was
unstable as he walked into the room. HN KT asked Appellant to pick out a
movie for them to watch; then she went to use the bathroom that was in the
middle of the suite of two adjoining barracks rooms. She returned to wash her
hands at the sink in her room, at which time Appellant came up from behind
HN KT and pinned her in by placing his hands on the sink to either side of
her. Appellant started to kiss her neck and HN KT unsuccessfully tried to
escape or push him away. Appellant grabbed HN KT and pushed her onto her
bed. He then bit HN KT on the abdomen, then on the breasts, and later on
her inner thighs and leg. Ultimately, HN KT was able to break away and flee
to her bathroom where she waited behind a locked door until Appellant left
her room. HN KT reported what happened over a month after the events in
question. Additional facts necessary for resolution of the AOEs are included
in the discussion below.

                                II. DISCUSSION

A. Instructional Error
    We first address Appellant’s contention that the military judge committed
plain error by providing contradictory instructions concerning the bodily
harm element of the offense.

   1. The legal standard of review
   At trial, the TDC did not object to the instructions provided by the mili-
tary judge. The TDC also explicitly responded, “No, your Honor,” to the
military judge when questioned whether he had objection to the instructions




                                        3
                 United States v. Herrera, NMCCA No. 201800062
                               Opinion of the Court

or requested additional instructions. 4 This trial and request for reconsidera-
tion both pre-dated our superior court’s opinion in United States v. Davis in
which the TDC’s affirmative response would constitute waiver and “leave[ ]
no error for us to correct on appeal.” 5 Nevertheless, having previously
evaluated this case under plain error review, in our discretion, we elect not to
apply waiver to this issue upon reconsideration. 6
    When there is no objection to panel instructions at trial, we review for
plain error and grant relief only when “(1) there was error that was (2) clear
or obvious, and that (3) materially prejudiced a substantial right of the
accused.” 7 If error was non-constitutional, affecting neither the presumption
of innocence nor Appellant’s ability to present a defense, we test whether any
such error had a “substantial influence” on the findings. 8 Should we find the
instructional error to be constitutional in nature, we can affirm only if such
error is harmless beyond a reasonable doubt. 9 In the context of instructions,
error is harmless beyond a reasonable doubt only if we find that “the error
did not contribute” to the findings or the sentence. 10

   2. Analysis
    Appellant was convicted of a specification alleging abusive sexual contact
in that he “did . . . touch directly the breast and inner thigh of [HN KT] by
causing bodily harm to [HN KT], to wit: biting her breast and legs, with an
intent to gratify the sexual desire of [Appellant].” 11
   The military judge provided the following instruction relating to this
specification:
            In Specification 3 of the Charge the accused is charged with
         the offense of abusive sexual contact in violation of Article 120



   4   Record at 717-18.
   5 79 M.J. 329, 331 (C.A.A.F. 2020) (quoting United States v. Campos, 67 M.J. 330,
332 (C.A.A.F. 2009)).
   6   See United States v. Chin, 75 M.J. 220 (C.A.A.F. 2016).
   7   United States v. McDonald, 78 M.J. 376, 378 (C.A.A.F. 2019).
   8   United States v. Gibson, 58 M.J. 1, 7 (C.A.A.F. 2003).
   9  United States v. Wolford, 62 M.J. 418, 420 (C.A.A.F. 2006) (citing United States
v. Kreutzer, 61 M.J. 293, 298 (C.A.A.F. 2005)).
   10   Id. (quoting Kreutzer, 61 M.J. at 298).
   11   Charge Sheet.




                                             4
                 United States v. Herrera, NMCCA No. 201800062
                               Opinion of the Court

         of the UCMJ. In order to find the accused guilty of this offense,
         you must be convinced by legal and competent evidence beyond
         a reasonable doubt that:
            On or about 17 April 2016, at or near Naval Air Facility,
         Atsugi, Japan, the accused committed sexual contact upon [HN
         KT] by touching directly the breast and inner thigh of [HN KT],
         and
            [Two,] [t]he accused did so by causing bodily harm to [HN
         KT] to wit: biting her breast and her legs;
            Three, that the accused did so with the intent to gratify his
         sexual desire, and
             Four, the accused did so without the consent of [HN KT].
             Touching may be accomplished by any part of the body.
            “Bodily harm” means any offensive touching of another,
         however slight, including any nonconsensual sexual act or non-
         consensual sexual contact.
             The government has alleged the accused committed a sexu-
         al contact, to wit: touching directly the breast and inner thigh
         of [HN KT] and that the same physical acts also constitute bod-
         ily harm required for the charge of abusive sexual contact. Now
         under these circumstances, the government also has the bur-
         den to prove beyond a reasonable doubt that [HN KT] did not
         consent to the physical acts. 12
   Appellant argues that the instruction is “contradictory” and “effectively
removed the requirement that the members find beyond a reasonable doubt
that [Appellant] bit HN KT” which “allowed the members to convict
[Appellant] for any touching” short of the biting the Government alleged. 13
    The military judge was required to instruct the members on “[a] descrip-
tion of the elements of each offense charged.” 14 The elements of the offense,
as defined by the President in the Manual for Courts-Martial [MCM], are:
(1) that Appellant committed sexual contact; (2) that he did so by causing
bodily harm; and (3) that he did so with the intent to gratify his sexual



   12   Record at 662-63; App. Ex. LXXXVIII.
   13   Appellant’s Brief of 6 Aug 18 at 19 (emphasis in original).
   14   Rule for Courts-Martial 920(e)(1).




                                             5
                  United States v. Herrera, NMCCA No. 201800062
                                Opinion of the Court

desires. 15 As tailored above, the military judge’s instructions comport with
the presidentially-defined elements of the offense. The military judge added a
fourth element, which served to increase the Government’s burden of proof,
by instructing that the members had to find that Appellant committed the
sexual act without HN KT’s consent. This is a judicially created fourth
element that the Military Judge’s Benchbook recommends when “the same
physical act is alleged as both the actus reus and the bodily harm for the
charged sexual contact.” 16
   In this case, the military judge noted, and the parties agreed, that the
fourth element might apply because the actus reus of “touching directly the
breast and inner thigh” was very similar to the alleged bodily harm of “biting
her breast and her legs.” 17 Thus, the military judge added the judicially
created fourth element with the express assent of the TDC. 18
    Because the military judge added the fourth element, he noted in his
instructions that “the same physical acts also constitute bodily harm required
for the charge of abusive sexual contact.” 19 Appellant has based this AOE on
this portion of the last paragraph of the instruction taken in isolation. Rather
than parsing just one portion, we must consider the instructions as a whole. 20
    In context, there is no reasonable reading of the instructions to suggest
that the military judge impermissibly lessened the Government’s burden.
Following four explicitly defined elements of the offense, this language was
clearly prefatory, noting that in these “circumstances, the government also
has the burden to prove beyond a reasonable doubt that [HN KT] did not
consent to the physical acts.” 21 The military judge correctly instructed the
members of the elements of abusive sexual contact that necessarily included
both the direct touching of HN KT’s breast and inner thigh and the bodily
harm brought about by biting her breast and legs.




   15   MCM (2016 ed), Part IV, ¶ 45b(7).
   16  Dep’t of the Army, Pam. 27-9, Legal Services: Military Judges’ Benchbook,
para. 3-45-16, note 3 (10 Sep 2014).
   17   Charge Sheet.
   18   See Record at 115, 616-19.
   19   Id. at 663.
   20   United States v. Schap, 49 M.J. 317, 322 (C.A.A.F. 1998).
   21   Record at 663.




                                            6
                  United States v. Herrera, NMCCA No. 201800062
                                Opinion of the Court

    Even if the challenged prefatory language created any ambiguity with the
military judge’s clear listing of the four elements of the offense, we do not find
error. The members receive instructions following the presentation of
evidence over the course of the trial. We too consider instructions “in the
context of the instructions as a whole and the trial record.” 22 Looking to the
entire record, there was ample evidence that the Government and the
Defense viewed the specification as alleging that Appellant bit HN KT on her
breast and thigh. HN KT provided compelling testimony describing how
Appellant repeatedly bit her, and the Government presented photographs
that showed significant bruising. After testifying that Appellant first bit her
abdomen, HN KT detailed how Appellant lifted up her shirt, exposed her
breasts and “began to bite them,” 23 causing her even greater pain than in his
initial bite to her abdomen. Following this, HN KT testified that Appellant
pulled off her pants and began biting her inner thigh “with more and more
force” and “much harder” than he had bitten her breasts or abdomen. 24 The
most forceful and painful bites—those to her inner thighs—were memorial-
ized in photographs that were admitted and published to the members. The
Government also presented Prosecution Exhibit [Pros. Ex.] 4, a social media
message containing a photograph HN KT had taken shortly after the incident
and sent to Appellant showing the dark bruises on her left leg, and Prosecu-
tion Exhibit 5, the Sexual Assault Nurse Examiner’s photographs taken over
a month later that still indicated bruising on HN KT’s left leg.
   Throughout the trial, the evidence presented biting—not touching, grab-
bing, pressing, pulling, hitting, or other acts—as the cause of HN KT’s
bruising on her thighs. In closing arguments, the trial counsel argued that
the Government proved that Appellant bit HN KT, and the TDC argued the
opposite. There was no ambiguity at trial on this issue.
   While Appellant avers “the military judge moved the goalposts towards
[G]overnment” 25 in his instruction, “we are confident that the members would
not choose an interpretation that rendered the preceding evidence, argu-




   22   Waddington v. Sarausad, 555 U.S. 179, 191 (2009) (citation omitted).
   23   Record at 410.
   24   Id. at 414.
   25   Appellant’s Reply Brief of 10 Jan 2019 at 1.




                                            7
                 United States v. Herrera, NMCCA No. 201800062
                               Opinion of the Court

ments, and instructions moot.” 26 Taken in context, we find no error, let alone
plain error, in the questioned instruction.

B. Ineffective Assistance of Counsel
    Appellant contends that his TDC was ineffective in his representation by
failing to object to what Appellant characterizes as a plainly erroneous
instruction.
    We analyze ineffective assistance of counsel claims under the test out-
lined by the Supreme Court in Strickland v. Washington. 27 In order to prove
ineffective assistance of counsel, Appellant must show that his TDC’s
performance was deficient and that the deficiency deprived him of a fair
trial. 28
    Having found the military judge did not err in instructing the panel, we
find no deficiency in TDC’s performance for not objecting to the same.

C. Factual Sufficiency
    Appellant avers his conviction was factually insufficient as the Govern-
ment failed to prove beyond a reasonable doubt that he bit HN KT’s breasts,
legs, or inner thigh, and also failed to prove any of these acts were committed
with the requisite specific intent.

   1. The legal standard of review
    We review questions of factual sufficiency de novo. 29 In testing for factual
sufficiency, we “weigh[ ] the evidence in the record of trial and mak[e]
allowances for not having personally observed the witnesses” in order to
determine whether we, ourselves, are “convinced of the accused’s guilt beyond
a reasonable doubt.” 30 We take a “fresh, impartial look at the evidence” and
must “make [our] own independent determination as to whether the evidence
constitutes proof of each required element beyond a reasonable doubt.” 31




   26 United States v. Clugston, No. 201500326, 2017 CCA LEXIS 43, at *28 (N-M.
Ct. Crim. App. 31 Jan 2017).
   27   466 U.S. 668 (1984).
   28   United States v. Garcia, 59 M.J. 447, 450 (C.A.A.F. 2004).
   29   Art. 66, UCMJ; United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).
   30   United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).
   31   Washington, 57 M.J. at 399.




                                            8
                  United States v. Herrera, NMCCA No. 201800062
                                Opinion of the Court

   2. The Government’s case
    The members heard extensive, detailed testimony from HN KT. The TDC
thoroughly cross-examined her on perceived discrepancies between her trial
testimony, her prior Article 32 testimony and her sworn statement to NCIS.
But the core of HN KT’s allegations remained the same: Appellant came to
her room in a drunken state and, without her consent, physically overpow-
ered her, kissed her, and forced her onto her bed where he bit her abdomen,
breast, and inner thigh, and ultimately penetrated her vaginally before she
eventually broke away. She fled to her bathroom where she waited for
Appellant to leave before returning to her bedroom and sleeping not in the
bed, but on the floor—a practice that became common to her for months after
as the result of Appellant’s actions that night.
   The Government presented Prosecution Exhibits 4 and 5, documenting
the state of HN KT’s visible bruising both soon after the assault and about 40
days later.
    The Government also presented the messages Appellant sent HN KT in
the days after the assault. Appellant wrote HN KT shortly after the day of
the assault, saying, “Hey hope you’re having a good day.” 32 When HN KT did
not reply, he wrote, “I hope you enjoyed your day today,” and “If you want, I’d
like to get together and talk soon.” 33 When HN KT still did not reply, having
had no contact with HN KT since he left the morning of the assault,
Appellant wrote:
         I won’t bother you again but I need to say this– I’m not entirely
         sure how the other night went. I was obviously beligerently
         drunk and dont remember most of it. I do, however, have this
         feeling that I royally messed up. . . . What matters is that I am
         ashamed of myself for being the way I was in your presence,
         and will be more ashamed if I disrespected you in any way. You
         don’t deserve that. I’m really sorry that you had to see me like
         that. . . . I’ve been trying to piece the night together all week,
         and although I do not seek forgiveness, you need to know that
         it’s killing me to know that I may have treated a woman the
         wrong way and want to correct it if possible. 34




   32   Pros. Ex. 4 at 1.
   33   Id.
   34   Id. at 1-2.




                                         9
                     United States v. Herrera, NMCCA No. 201800062
                                   Opinion of the Court

    HN KT replied, “You bruised me. A lot. After I told you multiple times to
stop.” 35 Appellant replied, “Really? I’m so so soo sorry. That breaks my heart
knowing that I did something like that.” 36 HN KT then sent a photo of her
left leg, depicting dark bruises to her inner thigh and calf.

   3. The Defense case
    Appellant testified in his own defense, but his testimony was not compel-
ling. He testified he lost all memories from the time he was drinking at the
enlisted club until he woke up the next morning. His lack of memory
stemmed from seven hours of drinking alcoholic beverages. In more than 20
responses to questions from TDC, trial counsel, and the members, Appellant
said he was unable to recall the events at issue. A representative example of
the nature of Appellant’s testimony appears in this question from the panel:
                Q:      [D]id you bite . . . [HN KT]’s legs?
                A:      I do not recall like that night. I don’t recall anything
                        after being at [the enlisted club], sir, so I can’t—I
                        can’t answer that question, sir. Sorry. 37
   Although Appellant testified that he did not think he was capable of
committing the acts HN KT described, he could not testify that they did not
happen. He testified that he woke up the next morning with his arm around
HN KT in her bed and that the two exchanged pleasantries as they each got
up to go about their Sunday plans. 38
    Additionally, the Defense presented the testimony of HN KT’s friend,
HM3 AL. HN KT confided in HM3 AL some details about Appellant’s visit to
her room on the night of the assault. On direct examination, HM3 AL
testified that HN KT said a friend came to her room drunk, that she let him
“sleep it off” in her room, but that the friend kept “trying to bite her” while
she “kept on saying no and that she was pushing him away and that he never
stopped.” 39 On cross-examination, HM3 AL clarified that he had only
assumed that HN KT let this drunk friend stay overnight in her room, noting
that HN KT never said she did so. He also clarified that HN KT told him that



   35   Id. at 2.
   36   Id.
   37   Record at 596.
   38   In rebuttal, HN KT testified this never happened.
   39   Record at 511.




                                             10
                  United States v. Herrera, NMCCA No. 201800062
                                Opinion of the Court

she was actually bitten throughout the night on the legs and that, following
the incident, HM3 AL noticed that “[HN KT] definitely seemed more down at
work, a little more secluded and definitely more argumentative with a few of
her coworkers for a few months after that.” 40 HM3 AL said that he believed
HN KT had only told him limited information about the incident, “but [he]
didn’t want to force her to recall things that she might not feel comfortable
telling [him] . . . . [or] force her to think about it or to talk about something
that . . . she might not be ready to talk about.” 41
    The Defense also presented the testimony of the barracks petty officer on
duty the night of the assault to show that there were no reports of loud noises
or unusual occurrences. An NCIS special agent testified he was unable to
recover security footage due to HN KT’s delay in reporting, and he did not
attempt to find any witnesses who remembered hearing a woman screaming
on the night of the alleged assault. Finally, the Defense presented two
witnesses who opined that Appellant is a truthful person.

   4. Appellant’s argument
    Appellant asserts the evidence is factually insufficient because he claims
HN KT made inconsistent statements to HM3 AL. His argument fails to
account for the entirety of HM3 AL’s testimony as clarified on cross-
examination and by members’ questioning. On balance, we find HM3 AL’s
testimony is consistent with the testimony of HN KT and supports the
members’ finding that Appellant committed abusive sexual contact upon HN
KT.
    Appellant further claims the evidence is factually insufficient because HN
KT did not provide photographic evidence that Appellant bit her breasts. He
further argues the evidence is insufficient because, during their text message
exchange days after the assault, HN KT only accused Appellant of biting her
thighs, but not her breasts.
    Finally, Appellant argues the Government did not prove he bit HN KT’s
body with the requisite intent to gratify his sexual desires. In the context of
HN KT’s testimony about Appellant’s actions in kissing her, then leading her
to the bed, then undressing her and biting her body, we find this is sufficient
proof that Appellant acted to gratify his sexual desires.




   40   Id. at 516.
   41   Id. at 519.




                                       11
                  United States v. Herrera, NMCCA No. 201800062
                                Opinion of the Court

   5. The evidence is sufficient
    HN KT’s testimony was credible. It was corroborated by photographs, and
it was consistent with her statements to the appellant via messaging and her
statements to her friend, HM3 AL. The photographs depict large, round, dark
bruises that are consistent with the bites HN KT described.
    Appellant’s testimony largely consisted of repeated statements that he
had no memory of any of the events in question. Although Appellant
attempted to explain his statements in Prosecution Exhibit 4 in a benign
manner, we interpret those statements as proof of consciousness of guilt.
Notably, in the messages, Appellant did not deny that he caused the bruises
on HN KT’s legs. Although he was not then accused of any misconduct, he
took it upon himself to repeatedly send unsolicited messages to HN KT.
When she did not respond, Appellant replied that he knew he “royally messed
up,” was “ashamed,” and assumed that he “may have treated a woman the
wrong way.” 42 Although Appellant testified at trial that he had no memory of
any interaction with HN KT that night, he wrote that he did not remember
“most” of the night and was trying to “piece the night together all week,”
which suggests he remembered more than he claimed to recall. 43
    We note Appellant claimed that when he awoke in bed with HN KT—a
fact she adamantly denied—his memory returned. Given the weight of the
evidence in this case, we do not find this claim to be credible or to overcome
the evidence in support of guilt.
    Having reviewed the entirety of the record and after weighing the evi-
dence anew, and making allowances for not having personally observed the
witnesses, we are convinced beyond reasonable doubt of Appellant’s guilt and
find his conviction to be factually sufficient.

                               III. CONCLUSION

    After careful consideration of the record and briefs of appellate counsel,
we have determined that the approved findings and the sentence are correct
in law and fact and that there is no error materially prejudicial to Appellant’s
substantial rights. Arts. 59 and 66, UCMJ. Accordingly, the findings and the
sentence as approved by the convening authority are AFFIRMED.
   Senior Judge TANG and Judge STEPHENS concur.



   42   Pros. Ex. 4 at 1-2.
   43   Id.




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United States v. Herrera, NMCCA No. 201800062
              Opinion of the Court

                FOR THE COURT:




                RODGER A. DREW, JR.
                Clerk of Court




                     13
