UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                         MULLIGAN, HERRING, and BURTON
                             Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                            Sergeant JAMES D. HILL
                          United States Army, Appellant

                                  ARMY 20120795

                        Headquarters, 1st Calvary Division
                   Gregory Gross, Military Judge (arraignment)
                       Patricia Lewis, Military Judge (trial)
               Colonel R. Tideman Penland, Jr., Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain Robert
H. Meek, III, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major A.G. Courie, III, JA; Major
Daniel D. Derner, JA; Captain Christopher A. Clausen, JA (on brief).


                                   30 October 2015

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

Per Curiam:

       A panel composed of officer members sitting as a general court-martial
convicted appellant, contrary to his pleas, of one specification of aggravated sexual
assault and one specification of abusive sexual contact in violation of Article 120,
Uniform Code of Military Justice, 10 U.S.C. § 920 (2006) [hereinafter UCMJ]. 1 The
panel sentenced appellant to a bad-conduct discharge, confinement for four years,
total forfeiture of all pay and allowances, and reduction to the grade of E-1. The
convening authority approved the adjudged sentence.

      Appellant raises three assignments of error: the government’s post-trial
processing delay was excessive; ineffective assistance of counsel; and an


1
 Following pleas but before findings, the government withdrew two specifications
alleging assault with intent to commit rape in violation of Article 134, UCMJ.
HILL—ARMY 20120795

unreasonable multiplication of charges. 2 The first allegation of error warrants
discussion and relief. The second allegation lacks merit. As to the third allegation
of error we find relief is appropriate without reaching the unreasonable
multiplication issue.

                                  BACKGROUND

                            1. Specification 2 of The Charge

      Appellant was charged with and found guilty of the following offenses:

      THE CHARGE: VIOLATION OF THE UCMJ, ARTICLE 120

             SPECIFICATION 1: In that [appellant], U.S. Army, did, at or
             near Fort Hood, Texas, between on or about 1 April 2008 and 11
             April 2008, engage in a sexual act, to wit: contact between the
             penis and the vulva involving penetration, with VS, who was
             substantially incapacitated.

             SPECIFICATION 2: In that [appellant], U.S. Army, did, at or
             near Fort Hood, Texas, between on or about 1 April 2008 and 11
             April 2008, engage in sexual contact, to wit: intentional touching
             the genitalia or anus, of VS, by doing so when VS was
             substantially incapacitated.

Before trial, appellant made a motion requesting, inter alia, that the military judge
dismiss Specification 2 of The Charge for findings as an unreasonable multiplication
of Specification 1 of The Charge, as both covered the same offense. The military
judge deferred ruling on this motion until the close of evidence on findings.

       This case involved a victim, VS, who was incapacitated due to alcohol
consumption and had no memory of the sexual assault perpetrated by the appellant.
The assault occurred in the bedroom of an apartment following a gathering of
several enlisted soldiers. Two of these soldiers put VS to bed due to the state of her
intoxication. She awoke the next morning on the floor of the bedroom naked from
the waist down and felt soreness in her vagina and discovered bleeding.

      The government called two eyewitnesses, Specialist (SPC) AM and Private
(PVT) JP. At some point during the evening or early the next morning, SPC AM and
PVT JP simultaneously looked into the room where VS was resting only to find
appellant on top of VS in what SPC AM described as a “missionary” style position.
Both VS and appellant were naked from the waist down.


2
 Appellant also raises several issues pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982), none of which merit discussion or relief.
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       The only physical evidence of sexual assault was provided by PW, the SANE
nurse who examined VS days after the assault. PW found abrasions in and around
VS’s vaginal area which indicated VS suffered a trauma consistent with penetration.
PW also found abrasions in VS’s perianal area. PW testified during cross-
examination that she could not say what caused these injuries based on the
examination alone. The government provided no evidence showing the abrasions to
the victim’s vulva, genital or anal areas were the result of touching by any particular
part of appellant’s body.

       After the close of the evidence, defense counsel again raised the multiplicity
issue. Trial counsel argued that the Specifications of The Charge were “completely
different” offenses and were permissible alternate theories of criminality that did not
stand in relation as a greater and lesser-included offense. In that regard,
Specification 2 would be encompassed by Specification 1 if the panel found
appellant penetrated the victim’s vulva with his penis. However, if the members
found the evidence sufficient to prove Specification 1, they could find appellant
guilty of Specification 2 if they also found touching of the victim’s genitals or anus
in some other manner.

      The military judge ruled that the Specifications of The Charge remained
separate for findings and later instructed the panel on the elements for each offense.
The military judge did not instruct that a finding of guilty as to one specification
necessarily required a finding of not guilty as to the other. She also did not instruct
the members in making findings by exceptions and substitutions if they found
appellant guilty of Specification 2.

       During closing arguments, trial counsel set forth the government’s theory of
the case and the gravamen of appellant’s offense in stating:

      Now, the judge instructed you on the elements of the crimes here on the
      Charge sheet, and she also told you that we withdrew two of the
      Charges, and that’s because this isn’t about an assault with him taking
      her clothes off. This is about a sexual assault. It’s the accused raping
      [VS]. I’d like to just talk about the elements for a minute, and I’m only
      going to talk about the elements for aggravated sexual assault, because
      that’s really what this is all about. It’s about aggravated sexual assault,
      and the first element is a sex act, and a sex act means penetration of the
      vagina, however slight.

Trial counsel did not address Specification 2 of The Charge during argument
or on rebuttal.
                                   2. Post-trial delay

      Appellant’s court-martial concluded on 15 August 2012. Defense counsel
received the record of trial for review on 13 April 2013 and completed review on 5
August 2013. Defense counsel requested speedy post-trial processing on 1 August

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HILL—ARMY 20120795

2013. The military judge authenticated the record of trial on 29 August 2013. The
staff judge advocate signed his recommendation (SJAR) on 23 September 2013 and
served it in conjunction with the authenticated record of trial on the new defense
counsel on 17 November 2013. With a granted extension, defense counsel submitted
post-trial matters on behalf of appellant on 16 January 2014. The convening
authority took initial action on the case on 20 February 2014. This court received
the record of trial on 20 March 2014, 582 days after the conclusion of the trial.

                             LAW AND DISCUSSION

                            1. Specification 2 of The Charge

      This court may affirm only such findings as it finds correct in law and fact
and determines, on the basis of the record, should be approved. Art. 69(c), UCMJ.

        Upon a thorough review of the record, it is unclear to this Court the basis for
the panel’s finding of guilty as to Specification 2 of The Charge. On the one hand,
trial counsel alleged that this specification reflected a possible lesser-included
offense of Specification 1. On the other hand, trial counsel argued that this
specification could also support a finding of guilty for some other form of touching
that was unidentified and unsupported by any evidence of record. During argument,
trial counsel all but conceded Specification 2 was a lesser-included offense and not a
stand-alone allegation and, thus, was charged in the alternative. The military judge
added to the confusion by not instructing the panel to treat Specification 2 as an
alternate theory of guilt exclusive of Specification 1 or, if the panel believed other
evidence supported a finding of guilt independent of Specification 1, to reflect the
basis for that finding through exceptions and substitutions.

       Accordingly, based on the unique facts of this case and the lack of specificity
in the member’s findings, we are compelled to set aside the findings of guilty and
dismiss Specification 2 of The Charge.

                                   2. Post-trial delay

       Taking over 550 days to process appellant’s case from trial completion to
docketing at this court is presumptively unreasonable. United States v. Moreno, 63
M.J. 129, 142 (C.A.A.F. 2006). In the face of this lengthy delay, our next step is to
apply and balance the four factors set out in Barker v. Wingo, 407 U.S. 514, 530
(1972), in order to determine whether appellant’s due process rights were violated.
In this regard, we find the appellant has not demonstrated any prejudice as a result
of this delay.

       Although we find no due process violation in the post-trial processing of
appellant’s case, we must still review the appropriateness of appellant’s sentence in
light of this excessive delay. UCMJ art. 66(c); United States v. Tardif, 57 M.J. 219,
224 (C.A.A.F. 2002). After consideration of the entire record, we conclude

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HILL—ARMY 20120795

appellant’s case warrants relief in the form of a forty-five day reduction in
confinement under Article 66(c), UCMJ, for the unreasonable post-trial delay. See
Tardif, 57 M.J. at 224.

                                  CONCLUSION

       The finding of guilty of Specification 2 of The Charge is set aside and that
specification is dismissed. The remaining findings of guilty are AFFIRMED.
Reassessing the sentence on the basis of the entire record, and applying the
principles of United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986) and the factors
set forth in United States v. Winklemann, 73 M.J. 11, 15-16 (C.A.A.F. 2013), we are
confident the panel would have adjudged the same sentence. The military judge, in
merging the specifications for sentencing, removed any taint caused by the presence
of Specification 2. However, based on an excessive post-trial delay, we AFFIRM
only so much of his sentence as provides for a bad-conduct discharge, confinement
for three years and 320 days, and reduction to the grade of E-1. All rights,
privileges, and property, of which appellant has been deprived by virtue of that
portion of his sentence set aside by this decision are ordered restored. See UCMJ
arts. 58b(c) and 75(a).


                                       FOR THE COURT:
                                     FOR THE COURT:



                                     JOHN P. TAITT
                                       JOHN
                                     Deputy   P. TAITT
                                            Clerk of Court
                                       Deputy Clerk of Court




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