          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                        UNITED STATES

                                                   v.

                         Master Sergeant MICHAEL S. INGRAM
                                 United States Air Force

                                            ACM 38849

                                         8 November 2016

         Sentence adjudged 1 April 2015 by GCM convened at Royal Air Force
         Mildenhall, United Kingdom. Military Judge: Christopher F. Leavey
         (sitting alone).

         Approved sentence: Dishonorable discharge, confinement for 12 years,
         and reduction to E-1.

         Appellate Counsel for Appellant: Major Lauren A. Shure

         Appellate Counsel for the United States: Major Collin F. Delaney;
         Major Jeremy D. Gehman; Captain Tyler B. Musselman; Gerald R.
         Bruce, Esquire

                                                Before

                              J. BROWN, SANTORO, and MINK
                                   Appellate Military Judges

                                   OPINION OF THE COURT

                 This opinion is issued as an unpublished opinion and, as such, does not serve as
                     precedent under AFCCA Rule of Practice and Procedure 18.4.


SANTORO, Judge:

       A military judge sitting alone as a general court-martial convicted Appellant,
contrary to his pleas, of penetrating his 12-year old daughter’s vulva with his finger,
placing his hand on her genitalia, causing her to touch his penis with her hand, and
endangering her welfare by providing her mixed drinks and alcohol, in violation of Articles
120b and 134, UCMJ, 10 U.S.C. §§ 920b, 934. The adjudged and approved sentence was
a dishonorable discharge, confinement for 12 years, and reduction to E-1. 1

      Appellant argues that the evidence is legally and factually insufficient to support his
convictions. We disagree and affirm.

                                                  Background

      Appellant’s daughter, TI, testified that Appellant molested her on two occasions in
2014. Appellant’s wife (TI’s mother) was in the United States attending to other family
business, leaving Appellant and TI alone in their home near RAF Mildenhall, United
Kingdom.

        In the first incident, TI was having an online conversation with a friend. Appellant
returned home from a local bar and asked TI to leave the computer and “cuddle” with him
on the couch. She agreed. Appellant rubbed her back and gradually worked his way toward
her vagina, which he “cupped” and “rubbed.” TI testified that this occurred for several
minutes. Although she did not immediately report the incident, she later told investigators
that the touching occurred the day before Appellant bought her a video game.

       The second incident occurred approximately three weeks later. TI testified that
Appellant returned home from a store with beer and milk. He took a Coca-Cola glass and
mixed the milk with vodka and another liquid from a brown bottle. Appellant told TI to
drink it, which she did. He made her a second drink, which she only partially consumed,
and he then gave her four shots of alcohol from a small “wine glass.” TI became dizzy and
nauseated and went upstairs to the bathroom. She vomited and began to draw water for a
bath but was so unsteady that she could not get into the bathtub. Instead, she went to her
bedroom and lay on the bed. She woke up to find Appellant also on her bed, moving his
hand under her underwear, rubbing her vaginal area, and inserting his finger into her
vagina. He also placed her hand on his penis.

       When Appellant left the bedroom shortly thereafter, TI went online and contacted
“ChildLine,” a local counseling service. TI made an initial, partial disclosure to ChildLine
about what had occurred. ChildLine called police. Responding officers spoke with TI,
seized evidence from the residence, and apprehended Appellant. Appellant subsequently
gave a statement in which he said he and TI had been watching a movie together before
she became “unwell.”

        Additional facts necessary to resolve the assignments of error are included below.


1
  The reduction to E-1 was deferred until the convening authority took action. Mandatory forfeitures were waived,
and the mandatory forfeiture of pay and allowances were directed to be paid to Appellant’s spouse for her benefit and
the benefit of her two dependent children.


                                                          2                                             ACM 38849
                               Factual and Legal Sufficiency

       Appellant argues that the evidence is factually and legally insufficient to support the
findings of guilty. 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. Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002) (quoting United
States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987)). In applying this test, “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); see also United States v.
McGinty, 38 M.J. 131, 132 (C.M.A. 1993).

        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]
convinced of [Appellant]’s guilt beyond a reasonable doubt.” Turner, 25 M.J. at 325. In
conducting this unique appellate role, we take “a fresh, impartial look at the evidence,”
applying “neither a presumption of innocence nor a presumption of guilt” to “make [our]
own independent determination as to whether the evidence constitutes proof of each
required element beyond a reasonable doubt.” Washington, 57 M.J. at 399. The term
reasonable doubt, however, 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). Our assessment of legal and
factual sufficiency is limited to the evidence produced at trial. United States v. Dykes, 38
M.J. 270, 272 (C.M.A. 1993).

        Appellant’s attack on the sufficiency of the evidence is a restatement of his closing
argument and clemency request: the complaining witness is not worthy of belief and/or
her testimony is not corroborated.

        If believed, the victim’s testimony established all of the elements of all of the
offenses of which Appellant was convicted. Although prior to trial the victim made
differing statements about what happened, we cannot say that when viewing the evidence
in the light most favorable to the prosecution a reasonable fact-finder could not credit the
victim’s in-court testimony. We, therefore, conclude that the evidence is legally sufficient
to support Appellant’s convictions.

        To corroborate TI’s testimony with respect to the first incident, the government
introduced a copy of the Army and Air Force Exchange Service (AAFES) purchase receipt
for the video game Appellant bought for TI. There was also evidence that TI had disclosed
Appellant’s conduct to one of her friends more than two weeks before the second incident
and before her report to law enforcement.




                                               3                                    ACM 38849
       With respect to the second incident, the government introduced testimony from the
responding police constable that she found a Coca-Cola glass and a wine glass in the
residence. She also located bottles of vodka and Kahlua in the freezer. There was standing
water in the bathtub and debris on the floor of the bathroom. Police also seized a pair of
TI’s panties which were later tested and found to have male DNA in the inside crotch area,
although testing could neither include nor exclude Appellant as the source of that DNA.

       The evidence is not without conflict. For example, TI’s statements to friends and
authorities about Appellant’s conduct were not always consistent. Although TI said that
she became intoxicated during the second incident, the first police officer to encounter her
shortly after the incident did not detect any signs of intoxication. TI made other
inconsistent statements including the types of alcohol Appellant gave her, her father’s
checking on her while she was in the bathroom, and her knowledge of the ChildLine
service.

        The outcome of this case turns significantly, if not entirely, on an assessment of the
victim’s credibility. Although we recognize our authority to find the victim not credible
based simply on a cold reading of the record, the trial court was in a better position to make
that assessment. Washington, 57 M.J. at 399. We agree with our Army colleagues who
have noted that “the degree to which we ‘recognize’ or give deference to the trial court’s
ability to see and hear the witnesses will often depend on the degree to which the credibility
of the witness is at issue.” United States v. Davis, 75 M.J. 537, 546 (Army Ct. Crim. App.
2015) (en banc).

       We have reviewed the evidence offered at trial, paying particular attention to the
inconsistencies Appellant noted. None of the inconsistencies, either standing alone or
taken together, causes us to believe that the victim’s in-court testimony was not credible.
Giving appropriate deference to the trial court’s ability to see and hear the witnesses, and
after our own independent review of the record, we are ourselves convinced of Appellant’s
guilt beyond a reasonable doubt.




                                              4                                    ACM 38849
                                       Conclusion

       The findings of guilt and the sentence are correct in law and fact and no error
materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and
66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and sentence are
AFFIRMED.

               FOR THE COURT



               KURT J. BRUBAKER
               Clerk of Court




                                             5                                  ACM 38849
