UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                      BURTON, CELTNIEKS, and SCHASBERGER
                             Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                     Staff Sergeant ANTHONY T. POWELL
                          United States Army, Appellant

                                  ARMY 20150562

                        Headquarters, 7th Infantry Division
        Jeffery D. Lippert, Military Judge (arraignment & motions hearing)
             Craig S. Denny, Military Judge (motions hearing & trial)
            Colonel Robert F. Resnick, Staff Judge Advocate (pretrial)
   Lieutenant Colonel James W. Nelson, Acting Staff Judge Advocate (post-trial)

For Appellant: Lieutenant Colonel Melissa R. Covolesky, JA; Major Andres
Vazquez, Jr., JA; Captain Michael A. Gold, JA (on brief); Lieutenant Colonel
Melissa R. Covolesky, JA; Captain Katherine L. DePaul, JA; Captain Michael A.
Gold, JA (on reply brief).

For Appellee: Lieutenant Colonel A.G. Courie III, JA; Major Anne C. Hsieh, JA;
Lieutenant Colonel Kirsten M. Dowdy, JA (on brief).


                                   16 January 2018

                              ---------------------------------
                              SUMMARY DISPOSITION
                              ---------------------------------
Per Curiam:

      A panel of officers and enlisted members sitting as a general court-martial
convicted appellant, contrary to his pleas, of one specification of assault
consummated by a battery, as a lesser-included offense (LIO) of abusive sexual
contact, and one specification of adultery in violation of Articles 128 and 134,
Uniform Code of Military Justice, 10 U.S.C. §§ 928, 934 (2012 & Supp. I 2014).
The panel sentenced appellant to a bad-conduct discharge and reduction to the grade
of E-4. The convening authority approved the sentence as adjudged.

      Appellant’s case is before this court for review under Article 66, UCMJ.
Appellant’s counsel assigned four errors, two of which merit discussion and relief.
Appellant also raised two issues pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), which are now moot based on our disposition of the assigned errors.
POWELL—ARMY 20150562

After review of the entire record, we find the military judge failed to advise the
panel properly on the LIO, and find no evidence of prejudice to good order and
discipline in the armed forces regarding the adultery specification. Therefore, we
provide relief in our decretal paragraph.

                             LAW AND DISCUSSION

                        A. Assault Consummated by Battery

       The question of whether the members were properly instructed is a question of
law, and thus, review is de novo. United States v. Maynulet, 68 M.J. 374, 376
(C.A.A.F. 2010). Where there is no objection to an instruction at trial, as in this
case, we review for plain error. United States v. Tunstall, 72 M.J. 191, 193
(C.A.A.F. 2013). “‘Under a plain error analysis, the accused has the burden of
demonstrating that: (1) there was error, (2) the error was plain or obvious; and
(3) the error materially prejudiced a substantial right of the accused.” United States
v. Payne, 73 M.J. 19, 23 (C.A.A.F. 2014) (quoting United States v. Girouard, 70
M.J. 5, 11 (C.A.A.F. 2011)).

         Our superior court has concluded in similar cases that assault consummated
by battery is a LIO of wrongful sexual contact. United States v. Bonner, 70 M.J. 1,
1-3 (C.A.A.F. 2011). However, assault consummated by battery is not necessarily a
LIO of abusive sexual contact. See United States v. Riggins, 75 M.J. 78, 83-85
(C.A.A.F. 2016) (finding assault consummated by battery was not a LIO of abusive
sexual conduct as it was charged in that case because the latter did not include as an
element lack of consent). Therefore, before instructing members about a potential
LIO, the military judge must conduct an elements test, applying the normal rules of
statutory interpretation and construction, to “determine whether the elements of the
LIO would necessarily be proven by proving the elements of the greater offense.”
United States v. Wilkins, 71 M.J. 410, 412 (C.A.A.F. 2012). The military judge must
then include in the instructions a “description of the elements of each [LIO] in issue
. . . .” Rule for Courts-Martial 920(e)(2). The Benchbook further recommends that
the members “be advised in order of diminishing severity of the elements of each
[LIO] and its differences from the principal offense and other lesser offenses, if
any.” Dep’t of Army, Pam. 27-9, Legal Services: Military Judges’ Benchbook,
para. 2-5-10 (10 Sept. 2014). Here, the military judge erred (1) when he failed to
conduct an elements test, particularly regarding lack of consent; and (2) when he
failed to advise the members of the elements of the LIO.

       In Specification 1 of Charge I, appellant was charged with a violation of
Article 120, UCMJ, for abusive sexual contact, as follows:

             In that [appellant] did, at or near Lakewood, Washington
             on or about 27 July 2014, commit sexual contact upon



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POWELL—ARMY 20150562

             Ms. [AT], to wit: touching Ms. [AT]’s face with his penis,
             and did so by causing bodily harm to her, to wit: using the
             weight of his body to restrain Ms. [AT].

The military judge explained the elements of abusive sexual contact and then
provided the following instruction:

             The offense charged in Specification 1 of Charge I is
             abusive sexual contact, and the lesser included offense is
             assault consummated by battery. It differs in that the
             offense charged requires an element that you must be
             convinced beyond a reasonable doubt that the accused
             committed sexual contact upon Ms. [AT], to wit: touching
             Ms. [AT]’s face with his penis, whereas the lesser offense
             of assault consummated by battery does not include that
             element.

The panel found appellant guilty of an assault consummated by battery, in violation
of Article 128, UCMJ.

       Some of the instructions for other offenses may have included elements that
pertain to the LIO. The elements for the LIO, however, were not provided as
required. This omission by the military judge was plain and obvious error that
materially prejudiced a substantial right of the appellant. If the panel members had
been provided the elements of the LIO, the result may have been different.

                                    B. Adultery

       In accordance with Article 66(c), UCMJ, we review issues of legal and factual
sufficiency de novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002). The test for legal sufficiency 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 Jackson v. Virginia, 443 U.S. 307, 319 (1979);
United States v. Humphreys, 57 M.J. 83, 94 (C.A.A.F. 2002). “[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 [ourselves] convinced of the accused’s
guilt beyond a reasonable doubt.” Turner, 25 M.J. at 325.

      The Specification of Charge IV alleged appellant, a married man, on or about
27 July 2014, wrongfully had sexual intercourse with Ms. AT, a woman not his wife,



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POWELL—ARMY 20150562

“and that said conduct was to the prejudice of good order and discipline in the armed
forces.” It is uncontroverted that appellant and Ms. AT met on a dating website and
dated for about two months. After they broke up in late June 2014, appellant and
Ms. AT did not see each other until 27 July 2014. Ms. AT testified that appellant
told her he was married and that they engaged in sexual intercourse the first time
they met. It is also uncontroverted that appellant and his wife had been separated
for about two years. Ms. AT reported that on 27 July 2014, appellant committed
various sexual acts and assaulted her. * Ms. AT testified that some of her friends in
the military knew that she and appellant were engaging in sexual intercourse during
the two months they were dating in May and June. However, no evidence was
elicited relating to anyone’s knowledge of sexual intercourse on 27 July 2014 as
charged, or that such conduct was prejudicial to good order and discipline. Without
such evidence, this specification is legally and factually insufficient.

                                   CONCLUSION

       On consideration of the entire record, the findings of guilty and the sentence
are set aside. The charges are DISMISSED. All rights, privileges, and property, of
which appellant has been deprived by virtue of the findings and sentence set aside
by this decision are ordered restored. See UCMJ arts. 58a(b), 58b(c), 75(a).

                                           FOR
                                           FOR THE
                                               THE COURT:
                                                   COURT:




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




*
 Appellant was found not guilty of two specifications of sexual assault in violation
of Article 120, UCMJ; one specification of sodomy in violation of Article 125,
UCMJ; and two specifications of assault consummated by a battery in violation of
Article 128, UCMJ. One Article 128, UCMJ, offense was dismissed. All of these
events were alleged to have occurred on or about 27 July 2014.


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