                       UNITED STATES, Appellee

                                    v.

               Sean P. BRIGHT, Sergeant First Class
                       U.S. Army, Appellant

                              No. 07-0269

                       Crim. App. No. 20020938

       United States Court of Appeals for the Armed Forces

                         Argued April 8, 2008

                         Decided June 9, 2008

ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, STUCKY, and RYAN, JJ., joined.

                                 Counsel

For Appellant: Charles W. Gittins, Esq. (argued); Captain Shay
Stanford (on brief); Captain Edward G. Bahdi and Captain Fansu
Ku.

For Appellee: Captain Teresa T. Phelps (argued); Colonel John
W. Miller II, Major Elizabeth G. Marotta, and Captain W. Todd
Kuchenthal (on brief); Major Tami L. Dillahunt and Captain
Michael Friess.

Amicus Curiae for Appellant: Charles B. Cromwell (law student)
(argued); Jeffrey T. Renz, Esq. (supervising attorney) (on
brief) -- for the University of Montana School of Law.

Military Judge:   Ronald W. White


       This opinion is subject to revision before final publication.
United States v. Bright, No. 07-0269/AR

     Judge ERDMANN delivered the opinion of the court.

     Sergeant First Class Sean P. Bright, a drill sergeant, was

convicted of raping a female trainee on three separate

occasions.1   The United States Army Court of Criminal Appeals

affirmed his convictions.   United States v. Bright, No. ARMY

20020938 (A. Ct. Crim. App. Dec. 19, 2006).   We granted review

to consider whether the evidence was legally sufficient to

support the findings of guilty as to the three rape

specifications.   65 M.J. 323 (C.A.A.F. 2007).   We hold that the

evidence was not legally sufficient to support the rape

convictions and reverse the findings as to those specifications.2

                            BACKGROUND

     Private W was twenty-three years old when she completed

basic training and arrived at Advanced Individual Training (AIT)


1
  Bright was also convicted of several other offenses which are
not at issue in this appeal, including: two specifications each
of forcible sodomy, maltreatment, and violating a lawful
regulation by wrongfully having a relationship with a private;
one specification each of attempting to violate a lawful general
regulation by wrongfully asking a private to have a
relationship, adultery, and impeding an investigation. These
charges against Bright were based on allegations of
improprieties with three different female trainees. Private W,
the alleged victim of the rape specifications, was also named in
the forcible sodomy specifications, one maltreatment
specification, one disobedience specification, and the adultery
charge.
2
  Oral argument in this case was heard at the University of
Montana School of Law, Missoula, Montana, as part of the court’s
“Project Outreach.” See United States v. Mahoney, 58 M.J. 346,
347 n.1 (C.A.A.F. 2003). This practice was developed as part of
a public awareness program to demonstrate the operation of a
federal court of appeals and the military justice system.

                                 2
United States v. Bright, No. 07-0269/AR

on December 3, 2001.   Bright, Private W’s platoon drill sergeant

at AIT, made Private W a squad leader.     According to Private W’s

testimony, on February 1, 2002, Bright called her into his

office.   Bright initially engaged her in a verbal exchange

typical of the platoon.    He asked questions such as, “‘Are you

ready for this, private?      Are you ready?’” and “‘You ain’t

ready.    Are you scared?’”   Although Private W did not know what

was behind the questions, she responded:     “‘Yes, drill sergeant,

I’m ready,’” and “‘I ain’t scared of nothing, drill sergeant.’”

During this exchange, Bright also stated, “‘I’m going to get up

and you’re going to receive.’”     Private W testified that she

responded “‘Hooah,’” but she did not know what Bright was

talking about at the time.

     Private W testified that Bright then sent her to wait in

the hallway.   Bright left and when he returned he winked at her

and called her back into his office.     While she was standing in

front of Bright’s desk at parade rest, Bright asked Private W if

she found him attractive.     Private W initially said, “‘I don’t

know,’” but when Bright pressed the issue, Private W answered

affirmatively.   Bright told Private W to go to the female bay

and call him on his cell phone.     Bright said that they “were

going to meet up at the Comfort Inn.”     According to Private W’s

testimony, she first responded, “‘No, it’s a bad idea, drill




                                    3
United States v. Bright, No. 07-0269/AR

sergeant.’”   Bright persisted, however, and Private W called

him.

       During the phone call, Bright told Private W to take a cab

to the hotel and page him back with the room number.      Private W

initially “told him no” because she didn’t “really want to go

meet up with my drill sergeant at a hotel.”      Private W

testified, “[T]here’s only one reason you’re going to go meet up

with somebody at a hotel out of the blue for a couple of hours.”

On direct examination, Private W indicated that she knew exactly

what Bright meant.   Private W stated that when she initially

refused, Bright told her to meet him “‘[o]r else you can stay

here this weekend.’”

       According to Private W, she was on “Gold Pass” status,

which meant that she could freely leave post on the weekends.

During the phone call, Bright reminded Private W that he

controlled her pass status and asked her if she wanted “to spend

eight months at Bravo locked down on Red Pass.”      When Private W

responded that she did not want that, Bright answered, “‘Well,

then do what I just told you to do,’” and Private W agreed.

       Private W testified that she packed a bag, took a cab to

the hotel, checked in and paid for the room, and then called

Bright with the room number.   Private W watched television as

she waited for Bright to arrive.       When he arrived a few minutes

later, Bright gave her money for the room, undressed himself and



                                   4
United States v. Bright, No. 07-0269/AR

told her to take off her clothes.      She undressed and they had

sexual intercourse.   When asked during cross-examination if

Bright threatened her, Private W answered, “Not physically, no.”

     Private W’s testimony reveals that she met Bright at

various hotels on four more occasions:     on or about February 8,

February 15, sometime in the middle of March, and on or about

April 5, 2002.   As to the second encounter on February 8, 2002,

Private W testified that “[e]xactly the same thing” happened:

she arrived first and checked into the room; when Bright arrived

he told her to get undressed; after she undressed they had sex

and he left.   Private W described the sex on the first and

second occasions as “[j]ust normal intercourse.”     She said she

“wasn’t really doing anything . . . just laid there . . . and

waited.”    When asked on cross-examination, “You didn’t tell him

to stop did you?,” Private W answered, “No.”

     Private W’s testimony indicates that while she was out with

friends, Bright paged her to arrange their third encounter on

February 15, 2002.    She testified:   “[H]e kept paging me and

paging me and finally I called him back.     And . . . he told me

to meet him at the Budget Lodge . . . .     So I was like,

alright.”   Bright arrived at the hotel first and was in bed

undressed when Private W arrived.      Bright told her to take her

clothes off.   Private W started undressing and Bright helped her

finish.    In the words of Private W, “then we had sex.”     Again,



                                  5
United States v. Bright, No. 07-0269/AR

Private W described their encounter as “[j]ust normal

intercourse.”   She said that it was “[p]retty much the same as

usual.    I just kind of laid there and didn’t really do much of

anything.”   When asked on cross-examination, “And [you] just

casually kind of had sex and smoked cigarettes, is that right?,”

Private W answered, “Yes.”

     The fourth incident involved a mix-up with hotel

arrangements.   According to Private W, Bright “showed up

eventually” and sent Private W to get beer out of his car.

Private W testified, “I came back in and we just had sex.”    On

cross-examination, Private W was asked, “so I take it on this

one ya’ll just had sex, drank beers, smoked cigarettes, is that

right?”   Private W answered, “Yes.”

     With respect to their last encounter on April 5, 2002,

Bright paged Private W to arrange their meeting.   When she

called him back, he told her to meet him at a specific hotel.

According to Private W’s testimony, her response was “okay.”

When she arrived at the hotel, Private W called Bright with the

room number and ordered a pizza while she was waiting for him to

arrive.   Bright told her to call back and order soda.   Private W

testified that after the pizza came, “we ate, had sex, and he

left.”    Private W also testified that “[l]ater on . . . he would

tell me he loved me and wanted me to have his baby and stuff




                                  6
United States v. Bright, No. 07-0269/AR

like that.”   Her response was:   “I told him it was crazy and no

way am I getting pregnant by anybody, let alone him.”

     Private W’s testimony also described an incident of sodomy

that she tried to resist.   Private W could not recall exactly

when the sodomy occurred, but believed it may have been during

their third encounter.   According to Private W, Bright initiated

anal sex after intercourse.   Her initial reaction was “‘Uh uh.’

. . . ‘No way.’”   According to Private W’s testimony, Bright

flipped her body over and she tried to crawl away.   He grabbed

her hips and pulled her back towards him.   Private W testified

that she said “no” a couple times and tried to move away a

couple times and then just waited for it to end.   Private W also

testified that Bright told her to perform oral sex on him.

According to Private W, Bright would “push my head in that

general direction and I’d just do it.”

     During her testimony, Private W described how some of their

hotel encounters were arranged.   She indicated that sometimes

Bright would “make something up to call [her] into his office”

and yell at her while gesturing with his hands that she should

call him.   He also would page her using a code.   She testified:

     [I]f it was over the weekend or something and I never
     called him back and he had been paging me then like on
     Monday or something -- like one time he smoked us.
     Right? He was like, “Private [W], you know you messed
     up this weekend. You know what you did wrong,” . . . .
     and we’re all down doing pushups.




                                  7
United States v. Bright, No. 07-0269/AR

     When asked if she had ever seen Bright’s “angry side,”

Private W testified that “he’ll like trash things and just start

throwing everything around all over the place in his office or

something if he’s mad.   And he just goes off the hook . . . .”

Private W made clear in her testimony, however, that he never

threw things directly at her.   She also testified that “if I

hadn’t called him in a while when I was supposed to call” he

would say to her things like:

     Don’t you f[...]ing piss me off because you know I’ve
     got control over this company and I can do whatever I
     want so you better not piss me off and you better do
     what I tell you to do and when I tell you to do it. I
     don’t give a f[...] about anything else.

Private W emphasized this point later in her testimony, stating

that when she didn’t return his pages:

     He would yell at me outside and he smoked the platoon
     or he’d smoke us all or he’d just -- like one time he
     paged me like a lot and I finally called him back and
     he told me -- he told me, “Don’t piss me off. You
     don’t want to mess with me. I’m the wrong person to
     be playing around with.”

     When asked during her testimony if Private W ever thought

about running or calling the police while at the hotel room, she

answered:

     Not really. For one, there’s -- you know, I ain’t
     that big of a person compared to Drill Sergeant
     Bright, sir, and if I really wanted to run, and he
     really wanted to stop me, I don’t think I’d make it
     very far. And I never thought about calling the cops
     really. You know? I didn’t think -- they’d be like,
     “Oh, why are you here with him in the first place
     anyways?”



                                 8
United States v. Bright, No. 07-0269/AR

     On cross-examination, Private W was asked about their first

encounter on February 1, 2002:   “[D]id he or did he not abuse

you, cause you any harm, or threaten you at that time?”   She

answered, “He threatened to take away my pass status and he

threatened to keep me on lock down for the entire eight months

that I was at Bravo Company.”    Defense counsel cross-examined

her further:    “But you never tried to, again, not show up?”

Private W answered, “Well, if I just didn’t show up, I’d have

the consequences to deal with the next week when I saw him

again.”

     On redirect examination, Government counsel specifically

asked Private W what those consequences were, and Private W

reiterated the concerns she had about her pass status:    “He told

me he would take away my pass status and that I’d be locked down

at Bravo company for the entire time -- for the entire time that

I would be there.   And I didn’t want to do that and that life

would be a living hell.”   Private W never testified that she

feared Bright would physically harm her if she did not meet him

at the hotels to engage in sexual intercourse.

     The Government also presented the testimony of Private M,

another squad leader at Bravo Company and a woman with whom

Private W had discussed the sexual relationship between herself

and Bright.    Private M was asked if she had ever seen Bright’s

“angry side.”   Private M answered affirmatively and testified



                                  9
United States v. Bright, No. 07-0269/AR

that she felt threatened while he was “chewing [her and Private

W] out because of our squads.”    She stated that Bright said she

should be scared of him “‘[b]ecause you don’t know how mother

f[...]in’ violent I can get.’”    Private M also stated:

     [W]ell, like he would get up into people’s faces and
     tell them to get in the f[...]ing grass -- “Get in the
     f[...] -- get the hell out of my formation. Get in
     the f[...]ing grass.” And he would like toss stuff
     all around when he was tearing apart lockers. He
     would throw people on the grass. He’d -- well, not
     like throw them, but he would tell them to get in the
     grass. Get (inaudible) and push. And he would be
     yelling. He’d like grab their face yelling at them
     and everything, cussing at ’em.

     After the close of the Government’s case, the military

judge found that the evidence was legally insufficient to

support the specification regarding the first allegation of rape

on February 1, 2002.     The members subsequently found Bright not

guilty of raping Private W on February 22, 2002, but guilty of

raping Private W on February 8, February 15, and April 5, 2002.3

Bright was sentenced to reduction to E-1, forfeiture of $550 pay

per month for twelve months, confinement for five years, and a

dishonorable discharge.    The convening authority approved the

sentence as adjudged.4




3
  The members also found Bright guilty of several related
offenses. See supra note 1.
4
  As noted, the Army Court of Criminal Appeals summarily
affirmed. United States v. Bright, No. ARMY 20020938 (A. Ct.
Crim. App. Dec. 19, 2006).

                                  10
United States v. Bright, No. 07-0269/AR

                            DISCUSSION
     The question before us is whether the evidence is legally

sufficient to support the findings of guilty as to the

specifications alleging rape on February 8, February 15, and

April 5, 2002.   Legal sufficiency is a question of law that this

court reviews de novo.   United States v. Tollinchi, 54 M.J. 80,

82 (C.A.A.F. 2000).   The test for legal sufficiency is whether,

considering the evidence in the light most favorable to the

prosecution, any reasonable factfinder could have found all the

essential elements of the offense beyond a reasonable doubt.

United States v. Day, 66 M.J. 172, 173 (C.A.A.F. 2008).

     Under Article 120(a), Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 920(a) (2000), “[a]ny person . . . who

commits an act of sexual intercourse, by force and without

consent, is guilty of rape.”   The Manual for Courts-Martial,

United States (MCM) identifies the essential elements of rape as

follows:   (1) “That the accused committed an act of sexual

intercourse;” and (2) “That the act of sexual intercourse was

done by force and without consent.”   MCM pt. IV, para. 45.b.

(2005 ed.).5



5
  While not applicable to this case, we note that Article 120,
UCMJ, has been amended since Bright’s court-martial. See
National Defense Authorization Act (NDAA) for Fiscal Year 2006,
Pub. L. No 109-163, 119 Stat. 3136, 3257-63 (2006) (to be
codified as amended at 10 U.S.C. § 920). Corresponding
provisions in the MCM have also been amended. See MCM pt. IV,
para. 45 (2008 ed.).

                                11
United States v. Bright, No. 07-0269/AR

     The MCM states further:

     Force and lack of consent are necessary to the
     offense. Thus, if the victim consents to the act, it
     is not rape. The lack of consent required, however,
     is more than mere lack of acquiescence. If a victim
     in possession of his or her mental faculties fails to
     make lack of consent reasonably manifest by taking
     such measures of resistance as are called for by the
     circumstances, the inference may be drawn that the
     victim did consent. Consent, however, may not be
     inferred if resistance would have been futile, where
     resistance is overcome by threats of death or great
     bodily harm, or where the victim is unable to resist
     because of the lack of mental or physical faculties.
     In such a case there is no consent and the force
     involved in penetration will suffice. All the
     surrounding circumstances are to be considered in
     determining whether a victim gave consent, or whether
     he or she failed or ceased to resist only because of a
     reasonable fear of death or grievous bodily harm.

MCM pt. IV, para. 45.c.(1)(b).

     We have recognized that force and lack of consent are

separate elements but “there may be circumstances in which the

two elements are so closely intertwined that both elements may

be proved by the same evidence.”      United States v. Simpson, 58

M.J. 368, 377 (C.A.A.F. 2003).   We have also recognized that

force can be actual or constructive.     See United States v.

Hicks, 24 M.J. 3, 6 (C.M.A. 1987).      In determining whether force

and lack of consent occurred, the court-martial must consider

the totality of the circumstances presented in the case.     United

States v. Cauley, 45 M.J. 353, 356 (C.A.A.F. 1996).

     Bright contends that the rape specifications must be set

aside because the Government failed to establish that sexual



                                 12
United States v. Bright, No. 07-0269/AR

intercourse occurred without Private W’s consent; or if the

intercourse did occur without consent, the Government failed to

establish that Bright would reasonably have been aware of

Private W’s non-consent due to her conduct.   Bright also argues

that the evidence was legally insufficient to establish

constructive force because there was no nexus in time, place or

circumstances between Bright’s on-duty tirades and the off-post

intercourse.

     The Government responds that Private W had a reasonable

belief that resistance would be futile based upon Bright’s

repeated threats, intimidation, and abuse of his authority and

position as Private W’s drill sergeant.    Consequently, the

Government contends, consent may not be inferred and

constructive force has been established.

     We turn first to the issue of consent and consider whether

Private W made her lack of consent “reasonably manifest by

taking such measures of resistance as called for by the

circumstances.”   MCM pt. IV, para. 45.c.(1)(b).   Proof that

Private W physically resisted Bright is not needed to support a

finding of lack of consent.   Cauley, 45 M.J. at 356 (citing

United States v. Webster, 40 M.J. 384, 386 (C.M.A. 1994)).      “A

lack of consent can be manifested by the victim in a number of

ways other than physical resistance.”   Id.   In Webster for

example, we concluded that the victim’s repeated verbal



                                13
United States v. Bright, No. 07-0269/AR

rejections were enough to establish that the members could

reasonably have found or inferred beyond a reasonable doubt the

element of lack of consent.   40 M.J. at 387.

     In this case, however, the record is devoid of any evidence

showing that Private W manifested a lack of consent or took any

measures to resist sexual intercourse with Bright on February 8,

February 15, and April 5, 2002.    Private W’s testimony

establishes that on each occasion, she made arrangements by

phone with Bright to meet at a hotel, fully cognizant that once

at the hotel, the two would engage in sexual intercourse.       Then,

unaccompanied by Bright, Private W made her own way to the

designated hotel.

     In two of these three incidents, Private W reached the

hotel before Bright and waited for him to arrive.   Excluding the

incident of sodomy which is not at issue in this appeal, Private

W’s descriptions of their sexual encounters do not include any

indication that Private W verbally or physically resisted sexual

intercourse either at the time the arrangements were made to

meet for sex or once the two were together at the hotel.

     On the contrary, Private W’s testimony reveals that during

the phone calls preceding the hotel meetings on February 15, and

April 5, 2002, she affirmatively voiced her agreement to meet

Bright at the hotels, and there is no question that she knew

they would engage in sexual intercourse at the hotels.     In



                                  14
United States v. Bright, No. 07-0269/AR

addition, when trial counsel asked her about having sex with

Bright on February 8, 2002, Private W testified expressly that

she did not tell Bright to stop.

     This conduct contrasts markedly with her response to Bright

on the one occasion when he initiated anal sodomy after

intercourse.    According to Private W’s testimony, at that time

she repeatedly told Bright “no” and tried to crawl away to avoid

his advances.   While Private W’s conduct with respect to the

sodomy incident clearly supports a finding that lack of consent

was reasonably manifest as to that act, Private W’s accounts of

what she called “[j]ust normal intercourse” lack any similar

manifestations of lack of consent.    We conclude that her

testimony with respect to the acts of “normal intercourse” fails

to provide a basis from which lack of consent can reasonably be

inferred.

     Our conclusion that Private W did not make her lack of

consent reasonably manifest does not end our inquiry into

consent.    As stated in the MCM, “[c]onsent, however, may not be

inferred if resistance would have been futile, where resistance

is overcome by threats of death or great bodily harm, or where

the victim is unable to resist because of the lack of mental or

physical faculties.”   MCM pt. IV, para. 45.c.(1)(b).   As this

case does not involve questions regarding the lack of mental or

physical faculties, we next consider whether “resistance would



                                 15
United States v. Bright, No. 07-0269/AR

have been futile, where resistance is overcome by threats of

death or great bodily harm.”   Id.

     In support of its argument that resistance would have been

futile, the Government points to Private W’s testimony that

before she entered the Army, she was told that she would be

raped by a drill sergeant and there was nothing she could do

about it.   The Government also points to Private W’s testimony

that she did not think about running or calling the police when

she was with Bright at the hotels because “I ain’t that big of a

person compared to Drill Sergeant Bright” and “if I really

wanted to run, and he really wanted to stop me, I don’t think

I’d make it very far.”   In addition the Government relies on the

testimony of another squad leader, Private M, who testified that

in the presence of Private W, Bright talked about his capacity

for violence.   Finally, the Government points to the sodomy

incident, where Private W verbally indicated non-consent and

tried to crawl away, but Bright pulled her back and subjected

her to an act of sodomy despite Private W’s resistance.

     In resolving questions of legal sufficiency, this court is

“‘bound to draw every reasonable inference from the evidence of

record in favor of the prosecution.’”   United States v. Rogers,

54 M.J. 244, 246 (C.A.A.F. 2000) (quoting United States v.

Blocker, 32 M.J. 281, 284 (C.M.A. 1991)).   When considered under

this standard, Private W’s testimony about the incident of



                                16
United States v. Bright, No. 07-0269/AR

forcible sodomy and her testimony regarding Bright’s ability to

catch her if she ran from the hotel arguably provides some

support for a finding that, once Private W was physically

present in the hotel with Bright, resistance to sex may have

been futile.

       However, the members are bound to consider the totality of

the circumstances presented by each case.   Cauley, 45 M.J. at

356.   On the facts of this case, when addressing whether the

futility of resisting sexual intercourse with Bright establishes

lack of consent, the Government cannot overcome the fact that

Private W was physically separated from Bright at the time she

agreed to meet him for sex on February 8, February 15, and April

5, 2002.   After affirmatively indicating on the phone that she

was willing to meet him at the hotel, Private W made her own way

to the hotel unaccompanied by Bright who arrived at the hotel on

each occasion separately.   There is no evidence to support the

inference that avoiding the hotel room would have been a futile

act of resistance.

       In fact, Private W never testified that it would have been

futile to resist the encounters altogether.   Rather, she

testified that if she did not meet him at the hotels as

requested, there would be consequences.   In particular, she

indicated that on one occasion where she did ignore his pages,

Bright “smoked the platoon.”   That is, after she resisted his



                                 17
United States v. Bright, No. 07-0269/AR

advances, he subjected the platoon to rigorous physical training

in the form of push-ups as a consequence for Private W’s

decision not to return his pages.     She also testified that he

threatened to revoke her Gold Pass status, which would require

her to remain on base.

     The facts preceding each of the sexual encounters in this

case differ significantly from those of United States v. Clark,

35 M.J. 432, 435 (C.M.A. 1992), and Simpson, 58 M.J. at 377,

upon which the Government relies.     In Clark, the evidence

supported findings that the appellant confined the victim in an

isolated area in a small shed with brick walls and a metal door

and that he positioned himself between the door and the victim.

35 M.J. at 433-35.   In Simpson, the evidence supported findings

that the appellant refused to accept verbal and physical

indications that his victims were not willing participants and

that he used his authority over the victims to issue orders that

placed them in the isolated locations where the charged rapes

occurred.   58 M.J. at 377.   In this case, the sexual encounters

took place in hotel rooms to which Private W traveled

unaccompanied by Bright after agreeing to meet him for sex.

     We next consider whether the record could support a finding

that resistance was overcome by threats of death or grievous

bodily injury.    We conclude that the record could not support

such a finding.   There is no evidence that the extra physical



                                 18
United States v. Bright, No. 07-0269/AR

training endured by the platoon, while no doubt grueling,

created a risk of death or grievous bodily injury.    Nor could a

reasonable factfinder infer that the heated statements Bright

made in formation or in his office when he addressed Private M’s

and Private W’s performance as squad leaders conveyed threats of

death or grievous bodily harm if Private W resisted his sexual

advances.

        Indeed, Private W never testified that Bright threatened

her with death or grievous bodily harm.    Rather, when given an

opportunity to explain the threats at issue, Bright was explicit

that:    “He threatened to take away my pass status and he

threatened to keep me on lock down for the entire eight months

that I was at Bravo Company.”    She subsequently reiterated this

concern:    “[H]e told me he would take away my pass status and

that I’d be locked down at Bravo company for the entire time --

for the entire time that I would be there.    And I didn’t want to

do that and that life would be a living hell.”

        We do not question that Bright’s conduct -- an egregious

abuse of his position for which he was charged and convicted of

maltreatment -- was criminal.    However, we cannot conclude that

a reasonable factfinder could find that the particular

circumstances involved in this case show that “resistance [was]

overcome by threats of death or great bodily harm” necessary to

sustain a conviction for rape.    MCM pt. IV, para. 45.c.(1)(b).



                                  19
United States v. Bright, No. 07-0269/AR

     For all the reasons stated above, we hold that a reasonable

factfinder could not find that the evidence establishes lack of

consent beyond a reasonable doubt.   Accordingly, we hold that

the evidence is not legally sufficient to support the three rape

specifications.   Because our legal conclusions regarding the

element of lack of consent resolves the question of legal

sufficiency, we do not consider the matter of constructive

force.

                             DECISION

     As the evidence in this case is legally insufficient to

support convictions for rape on February 8, 2002, February 15,

2002, and April 5, 2002, the findings of guilty as to Charge I,

Specifications 2, 3, and 5 are set aside.   The remaining

findings are affirmed.   The record of trial is returned to the

Judge Advocate General of the Army for remand to the United

States Army Court of Criminal Appeals.    The lower court may

reassess the sentence or order a rehearing on sentence, as

appropriate.




                                20
