         U NITED S TATES N AVY –M ARINE C ORPS
             C OURT OF C RIMINAL A PPEALS
                         _________________________

                             No. 201600053
                         _________________________

                 UNITED STATES OF AMERICA
                                  Appellee
                                     v.
                       DARRIUS D. UPSHAW
           Hospital Corpsman Third Class (E-4), U.S. Navy
                              Appellant
                       _________________________
 Appeal from the United States Navy-Marine Corps Trial Judiciary

             Military Judge: Major M. Sameit, USMC.
  Convening Authority: Commanding General, U.S. Marine Corps
    Forces, Special Operations Command, Camp Lejeune, NC .
 Staff Judge Advocate’s Recommendation: Lieutenant Colonel J.E.
                           Glavin, USMC.
   For Appellant: William E. Cassara, Esq.; Lieutenant Jacob E.
                       Meusch, JAGC, USN.
  For Appellee: Lieutenant Commander Jeremy R. Brooks, JAGC,
          USN; Lieutenant Robert J. Miller, JAGC, USN.
                      _________________________

                          Decided 31 May 2017
                         _________________________

     Before MARKS , R UGH , and J ONES , Appellate Military Judges
                       _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
                     _________________________

   MARKS, Senior Judge:
   A general court-martial comprised of members with enlisted
representation convicted the appellant, contrary to his pleas, of two
specifications of abusive sexual contact and one specification of sexual
assault, in violation of Article 120, Uniform Code of Military Justice (UCMJ),
                    United States v. Upshaw, No. 201600053


10 U.S.C. § 920 (2012).1 The members sentenced the appellant to 10 years’
confinement, reduction to pay grade E-1, total forfeitures, and a dishonorable
discharge. The convening authority (CA) approved the sentence as adjudged
and, except for the punitive discharge, ordered the sentence executed.
    The appellant raises four assignments of error (AOE)2: (1) the evidence is
factually insufficient to sustain a conviction for sexual assault; (2) the
military judge erred in refusing to admit evidence of artwork at the
appellant’s apartment admissible under a relevance standard to show that
the alleged victim was aware of the appellant’s sexual orientation; (3) the
military judge erred in giving an instruction on variance for the sexual
assault charge, as the variance was a different substantive act and prejudiced
the appellant’s ability to defend against the charge; and (4) the military judge
erred in allowing the government to use charged sexual misconduct as
propensity evidence for other charged sexual misconduct.
    We find merit in the final AOE regarding the use of charged sexual
misconduct as propensity evidence. Weighing the prejudice of the error, we
affirm the appellant’s two convictions for abusive sexual contact but set aside
the conviction for sexual assault. However, we do not find the sexual assault
conviction to be factually insufficient (the first AOE) and thus order it
remanded with authorization for a rehearing. This renders the two remaining
AOEs moot.
                                 I. BACKGROUND
   The appellant, a Hospital Corpsman Third Class stationed at Camp
Pendleton, California, was tried for two unrelated allegations of sexual
assault of male Marines. He was under investigation for sexually assaulting
a Marine on 31 October 2014 when another Marine accused him of sexual
assault on 1 March 2015. The two alleged victims did not know each other.
   Despite some substantive differences in the allegations, circumstances
surrounding them were very similar. The appellant met both victims at the
same Oceanside, California, bar. Both victims had been drinking for hours
and were already very intoxicated when the appellant supplied them with

   1 The members acquitted the appellant of one specification of abusive sexual
contact. The military judge consolidated two specifications of abusive sexual contact
and two specifications of sexual assault into single specifications of abusive sexual
contact and sexual assault because they constituted unreasonable multiplications of
charges for findings.
   2 The appellant raised the first three in his original Assignments of Error and
moved to submit the fourth in Appellant’s Motion for Leave to File Supplemental
Assignment of Error and Supplemental Assignment of Error, which we granted on 6
March 2017.


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                     United States v. Upshaw, No. 201600053


more alcohol. When both victims were ready to sleep off their inebriation, the
appellant offered them rides to the barracks and his apartment, respectively.
Both victims awoke to either sexual contact or a sexual act. Both sought help
escaping the appellant, displaying noticeable shock and distress to witnesses.
    Trial counsel filed a pretrial motion to admit evidence of the two incidents
under MILITARY RULE OF EVIDENCE (MIL. R. EVID.) 413,3 SUPPLEMENT TO
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). To demonstrate
the probative weight of the evidence, trial counsel proffered the parallels they
would draw between the two allegations at trial. Trial defense counsel
objected to the admission of charged misconduct as propensity evidence,
arguing that it “strips the accused of his constitutionally guaranteed
presumption of innocence on all charges” and “relieves the government of its
burden to prove every element of every charged offense beyond a reasonable
doubt.”4 Relying on the state of case law at the time, the military judge
admitted the evidence pursuant to MIL. R. EVID. 413.
                                II. DISCUSSION
    In light of the subsequent Court of Appeals for the Armed Forces’ (CAAF)
decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016), the appellant
again challenges the admission of charged sexual misconduct as evidence of
his propensity to commit sexual assault under MIL. R. EVID. 413.
    “A military judge’s decision to admit evidence is reviewed for an abuse of
discretion.” Hills, 75 M.J. at 354 (citation omitted). But “[t]he meaning and
scope of [MIL. R. EVID.] 413 is a question of law that we review de novo.” Id.
(citing LRM v. Kastenberg, 72 M.J. 364, 369 (C.A.A.F. 2013)). In Hills, the
CAAF held the military judge erred in interpreting MIL. R. EVID. 413 to
encompass charged sexual misconduct and abused his discretion by
admitting it as evidence under the rule. We find the same error and abuse of
discretion in the military judge’s admission of charged misconduct as
propensity evidence in this case.
   In both Hills and this case, the erroneous interpretation of MIL. R. EVID.
413 manifested in the members’ instructions. Instructional error is subject to
de novo review. Id. at 357.




   3 Appellate Exhibit (AE) XVI. The motion prayed for admission of the evidence

under MIL. R. EVID. 404(b) should the military judge determine it was inadmissible
under MIL. R. EVID. 413.
   4   AE IX at 2.


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                      United States v. Upshaw, No. 201600053


    The Hills court found error in instructions advising members how to
consider evidence admitted pursuant to MIL. R. EVID. 413.5 Id. Specifically,
the instructions “violated Appellant’s presumption of innocence and right to
have all findings made clearly beyond a reasonable doubt, resulting in
constitutional error.” Id. at 356. Constitutional error in instructions “‘must be
tested for prejudice under the standard of harmless beyond a reasonable
doubt.’” Id. at 357 (quoting United States v. Wolford, 62 M.J. 418, 420
(C.A.A.F. 2006)). “An error is not harmless beyond a reasonable doubt
when ‘there is a reasonable possibility that the [error] complained of might
have contributed to the conviction.’” Id. at 357-58 (quoting United States v.
Moran, 65 M.J. 178, 187 (C.A.A.F. 2007)); see also United States v. Hukill, __
M.J. __, 2017 CAAF LEXIS 305, at *6 (C.A.A.F. May 2, 2017). “‘To say that
an error did not contribute to the verdict is, rather, to find that error
unimportant in relation to everything else the jury considered on the issue in
question, as revealed in the record.’” United States v. Othuru, 65 M.J. 375,
377 (C.A.A.F. 2007) (quoting Yates v. Evatt, 500 U.S. 391, 403 (1991),
overruled on other grounds by Estelle v. McGuire, 502 U.S. 62, 72 n.4 (1991)).
    The military judge in the case before us read substantially the same
instruction at issue in Hills, “invit[ing] the members to bootstrap their
ultimate determination of the accused’s guilt with respect to one offense
using the preponderance of the evidence burden of proof with respect to


    5   The military judge in Hills instructed members
          that evidence that Appellant committed one of the charged sexual
          assaults :
              may have a bearing on your deliberations in relation to the
              other charged sexual assault offenses . . . only under the
              circumstances I am about to describe:
              First, you must determine by a preponderance of evidence
              that it is more likely than not that the sexual assault offense
              occurred;
              If you determine by a preponderance of the evidence that one
              or more of the offenses alleged in Specifications 1, 2, or 3 of
              the Charge occurred, even if you are not convinced beyond a
              reasonable doubt that the accused is guilty of one or more of
              those offenses, you may nonetheless consider the evidence of
              such offenses, or its bearing on any matter to which it is
              relevant in relation to the other sexual assault offenses;
              You may also consider the evidence of such other acts of
              sexual assault for its tendency, if any, to show the accused’s
              propensity to engage in sexual assault.”
Hills, 75 M.J. at 356 (ellipsis in original).


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                  United States v. Upshaw, No. 201600053


another offense.” Hills, 75 M.J. at 357. We conclude the military judge’s
instructions were erroneous in a way that infringed upon the appellant’s
constitutional rights.
   We must now determine whether the erroneous instructions inviting
members to consider charged sexual misconduct as evidence of a propensity
to commit sexual assault might have contributed to the appellant’s
convictions. We do so by weighing the government’s use of propensity
evidence and the strength of the allegations against the appellant absent
propensity evidence.
A. Trial counsel’s presentation of propensity evidence
    First, we consider the trial counsel’s robust use of MIL. R. EVID. 413 and
propensity evidence in prosecuting this case. The government’s silence about
propensity evidence and MIL. R. EVID. 413 is an important factor in
determining whether the associated errors were harmless. See United States
v. Luna, No. 201500423, 2017 CCA LEXIS 314, at *18, unpublished op. (N-M.
Ct. Crim. App. 9 May 2017) (finding harmless error when trial counsel did
not reference propensity in closing arguments and instead emphasized the
government’s burden to prove every element beyond a reasonable doubt);
United States v. Bonilla, No. 20131084, 2016 CCA LEXIS 590, at *25,
unpublished op. (A. Ct. Crim. App. 30 Sep 2016) (citing trial counsel’s failure
to reference propensity evidence in his argument as one of the factors
convincing the court the instruction did not contribute to the verdict), aff’d,
2017 CAAF LEXIS 352 (C.A.A.F. May 3, 2017) (summary disposition); United
States v. Harrison, No. 38745, 2016 CCA LEXIS 431, at *35, unpublished op.
(A.F.C.C.A. 20 Jul 2016) (finding harmless error when trial counsel not only
declined to focus on propensity evidence but also “specifically distanced the
Government from any argument regarding Appellant’s predisposition to
commit sexual misconduct.”), aff’d, 76 M.J. 127 (C.A.A.F. 2017) (summary
disposition). Cf United States v. Gonzales, No. 20130849, 2017 CCA LEXIS
128, at *7 (A. Ct. Crim. App. 22 Feb 2017) (setting aside the findings and
sentence based on the erroneous propensity instructions and a government
closing argument stressing the importance of the propensity evidence).
   Here, the trial counsel did not hesitate to incorporate propensity evidence
and MIL. R. EVID. 413 into the government’s trial strategy. They capitalized
on the parallels between the two Marines’ allegations as evidence of the
appellant’s predisposition to commit sexual assault. Trial counsel began his
opening statement by introducing the two alleged victims, Lance Corporal
(LCpl) K.L.M. and Corporal (Cpl) K.I., as a pair of Marines whose experiences




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                        United States v. Upshaw, No. 201600053


with the appellant were interchangeable: “In a snapshot, the events leading
up to the sexual assaults is [sic] the same.”6
    At the beginning of his closing argument, trial counsel returned to the
link between LCpl K.L.M. and Cpl K.I.: “K.L.M. and K.I., they don’t know
each other. They have never heard of each other. Members, the accused isn’t
unlucky. He didn’t just fall into unfortunate circumstances. The accused is
the link.”7 Trial counsel then focused the members on the propensity
instruction with his own explanation:
            The military judge instructed you about propensity,
         members, and that’s what makes this trial unique. These cases
         are connected[,] and they are connected only by the accused’s
         involvement.
             What did he tell you? He said that if you find that an
         offense occurred, whether that be grabbing the penis, rubbing
         the thigh and the groin, or penetrating the anus, you may use
         that on any other point to which it is relevant if you find that
         that initial charge was just by a preponderance of the evidence.
             So if you find that by a preponderance of the evidence the
         accused grabbed K.L.M.’s penis, Specification 2 of Charge I,
         simply by a preponderance of the evidence, you may use that—
         you may even use that to find that he has a predisposition to
         engage in sexual assault. So if you find that any one of these
         things happened by a preponderance of the evidence, you can
         use that to find that he is the type of person that does these
         things.8
   As he transitioned from one alleged offense to another, trial counsel
reminded the members they only needed to reach the preponderance
standard to build a bridge between the two charges.
         Remember that propensity instruction though. If you believe by
         a preponderance of the evidence that that first [abusive sexual
         contact] happened, you can use that for the second.9
             ...




   6   Record at 334.
   7   Id. at 643.
   8   Id. at 643-44.
   9   Id. at 647.


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                      United States v. Upshaw, No. 201600053


         And, members, keep in mind, once you find by a preponderance
         of the evidence that any of the offenses have occurred, you can
         use that evidence to draw the conclusion that he is the type of
         person that commits these acts.10
The trial defense counsel also explained the propensity instruction:
         I want to talk a little bit about the government’s burden of
         proof. Preponderance of the evidence, it’s more likely than not.
         That’s what you have to find first, on one of these, if you are
         going to try to use if for another. Pay close attention to that
         spill-over instruction.11
Finally, in rebuttal argument, trial counsel focused the members again on the
commonalities between the two incidents.
            The accused went to the bar, he found a vulnerable Marine,
         he sidled up to that Marine, he identified himself as a
         corpsman, he offered that safe sober ride, and then he
         assaulted the Marine.
            And then, while under investigation for the first incident,
         he does it again. Same thing. He goes to a bar, sidles up to a
         Marine, safe sober ride, and he assaults him. It’s what he does.
         That’s the type of person he is.12
   Then trial counsel ended his argument with the appellant’s propensity to
commit sexual assault: “Are there people in our world with a propensity for
sexual assault? Yes, there are. Is Petty Officer Upshaw one of those people?
Yes, he is.”13
    Trial counsel repeatedly emphasized the similarities between the two
incidents and invited the members to find predisposition and propensity in
the appellant’s conduct. We now look at the strength of the evidence to
determine whether “that error [was] unimportant in relation to everything
else the jury considered on the issue in question, as revealed in the record.”
Othuru, 65 M.J. at 377.
B. Strength of the evidence
   1. LCpl K.L.M.



   10   Id. at 651.
   11   Id. at 664.
   12   Id. at 670.
   13   Id. at 671.


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                         United States v. Upshaw, No. 201600053


    The afternoon of 30 October 2014, LCpl K.L.M. left his barracks at Camp
Pendleton, California, and caught a ride with a friend to a bar in nearby
Oceanside, California. LCpl K.L.M. planned to meet a girl with whom he was
communicating via an online dating application. Upon arrival, LCpl K.L.M.
began drinking alcohol. Over the course of the evening, the appellant struck
up a conversation with LCpl K.L.M., introducing himself as a corpsman14.
The appellant bought LCpl K.L.M. a “Vegas Bomb,” a cocktail consisting of
four shots of hard liquor.15 Around midnight, LCpl K.L.M. was “extremely
intoxicated”16 and ready to go home. The appellant offered him a ride back to
his barracks. On their way to the appellant’s car, LCpl K.L.M., another man
from the bar, and the appellant stepped inside a sex shop for about two
minutes “for just laughs and gags.”17 The appellant then helped LCpl K.L.M.
into the front passenger seat of his car and reclined the seat so LCpl K.L.M.
could sleep. LCpl K.L.M. remembered the appellant waking him “to show
consciousness”18 as they passed through the main gate to Camp Pendleton,
but he quickly fell asleep again.
    When LCpl K.L.M. next awoke, his jeans were unzipped, and the
appellant was rubbing his penis. LCpl K.L.M. tried but failed to push the
appellant’s hand away, so he pulled his knees to his chest and turned toward
the car window. In response, the appellant’s “hand came out and he started
rubbing [LCpl K.L.M.’s] leg.”19 LCpl K.L.M. “started freaking out,” yelling,
and demanding that the appellant pull over. LCpl K.L.M. climbed out of the
car and fell to his hands and knees, still “severely intoxicated.”20 He texted
his roommate at 0055: “This fuses [sic] trying to rape me man I need help.”21
At 0058, LCpl K.L.M. called his squad leader.22 According to his squad leader,
a sobbing LCpl K.L.M. told him he accepted a ride home from a corpsman
and woke up in the vehicle to the corpsman trying to rape him.23 When the



   14 Corpsman is the common term for Sailors in the Hospital Corpsman rating,
such as the appellant.
   15   Record at 391.
   16   Id. at 368.
   17   Id. at 398.
   18   Id. at 371.
   19   Id. at 372.
   20   Id.
   21   Prosecution Exhibit (PE) 1.
   22   PE 2 at 2.
   23   Record at 341-43.


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                         United States v. Upshaw, No. 201600053


squad leader next texted at 0124 that he was on his way to help, LCpl K.L.M.
replied, “[p]lease hurry.”24
    In between calls, LCpl K.L.M. vomited in the parking lot. The appellant
approached him, rubbing his back and leg then his crotch area over his jeans.
This time, LCpl K.L.M. immediately removed the appellant’s hand, nudging
it with his hand and forearm. LCpl K.L.M. remained in the parking lot,
waiting, for over an hour. But in phone calls with his squad leader, LCpl
K.L.M. repeatedly said, “‘[j]ust pick me up.’”25 When the squad leader finally
arrived, LCpl K.L.M. approached him crying, hugged him, and thanked him
for picking him up.
    The appellant walked up to the car and described LCpl K.L.M. as having
“‘the strongest case of survivor syndrome that I’ve ever seen to that extent.’”26
The squad leader and LCpl K.L.M.’s roommate denied knowing of anything
that might explain symptoms of survivor syndrome, post-traumatic stress
disorder, or the like in LCpl K.L.M. LCpl K.L.M.’s most recent deployment
did not include combat.
    The appellant was convicted of: (1) touching LCpl K.L.M.’s thigh and
groin with his hand without LCpl K.L.M.’s consent and (2) touching LCpl
K.L.M’s penis without LCpl K.L.M.’s consent and while LCpl K.L.M. was
incapable of consenting because of impairment by alcohol, a condition of
which the appellant was aware or reasonably should have been aware. LCpl
K.L.M. was very intoxicated when he stirred for the benefit of the gate guard
that morning but quickly fell back asleep in the reclined front passenger seat
of the appellant’s car. Had he been sober, he likely would have awoken to the
appellant fumbling for the zipper under the large cowboy belt buckle he was
wearing.27 But he did wake in time to feel the appellant’s hand on his penis
and physically resist that contact. LCpl K.L.M.’s memories of the
circumstances surrounding his allegation of abusive sexual contact are
detailed and largely intact. Alcohol-fueled blackouts have not left gaps in his
account of events.



   24   PE 3.
   25   Record at 346.
   26 Id. at 349. The appellant seemed to refer to survivor syndrome as something
similar to post-traumatic stress disorder and asked if LCpl K.L.M. had lost close
friends.
   27 See United States v. Clugston, No. 201500326, 2017 CCA LEXIS 43, at *13-14,
unpub. op. (N-M. Ct. Crim. App. 31 Jan 2017) (noting that alcohol may prevent an
intoxicated sleeper from waking to the touch and movements of another person as
quickly as a sober sleeper would wake).


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                         United States v. Upshaw, No. 201600053


    Although there is no forensic evidence of the appellant’s DNA on LCpl
K.L.M.’s penis,28 the evidence corroborating LCpl K.L.M.’s testimony is
substantial. The appellant’s decision to stop the car supports LCpl K.L.M.’s
claim that something unexpected and upsetting happened on the ride back to
his barracks. The appellant’s explanation that LCpl K.L.M. suffered a severe
episode of survivor syndrome, which was rebutted by his roommate and
squad leader, suggests the appellant’s consciousness of guilt about the need
for the sudden stop. LCpl K.L.M.’s excited utterances on the phone and via
text message are credible evidence of his sudden distress, the sexual nature
of what prompted it, and the sense of vulnerability that prompted him to cry
for help.
    The appellant argues that shame from an unplanned homosexual liaison
was the source of LCpl K.L.M.’s anxiety, but that theory is unpersuasive in
this case. Photographs of the parking lot, fronting a main road through Camp
Pendleton, show this was not a secluded make-out spot the appellant might
have driven to for privacy. If we believe LCpl K.L.M. consented to, then
suddenly regretted, sexual contact with the appellant, we must also believe
he spontaneously fabricated and executed a dramatic and drawn out cry for
help in an intoxicated state. The utter improbability of that prevents it from
sowing reasonable doubt in our minds.
   We find no reasonable cause to question LCpl K.L.M.’s credibility. The
evidence of the appellant’s guilt, with regard to the Charge and its two
specifications of abusive sexual contact of LCpl K.L.M. for touching his penis
and then his thigh and groin, is so overwhelming that we are convinced,
beyond a reasonable doubt, that it rendered the subsequent evidence of the
sexual assault of Cpl K.I. unimportant and did not contribute to the
members’ findings of guilty.
   2. Cpl K.I.
     Cpl K.I. and Sergeant (Sgt) B. began drinking beer at breakfast on 1
March 2015. Then they went to a bar in Oceanside, California, and Sgt B.
ordered three pitchers of beer to share. Although Cpl K.I. did not remember
it, he and Sgt B. moved on to a second bar, where they began drinking mixed
drinks. Cpl K.I. did remember meeting the appellant, who was wearing a
blue hoodie with “Navy Corpsman”29 on it and was accompanied by his dog. It
was the same bar where the appellant had met LCpl K.L.M. four months
earlier.


   28 There is no evidence LCpl K.L.M. received a sexual assault forensic exam or
provided any clothing for forensic analysis.
   29   Record at 550.


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                      United States v. Upshaw, No. 201600053


    Sometime mid-afternoon, Sgt B., drunk and tired, suggested to Cpl K.I.
they find a hotel. The appellant, standing with them, offered to take them to
his place to crash. Sgt B. accepted the offer of free lodging. Alcohol
diminished Cpl K.I.’s memory of 1 March 2015, but he remembered a car
ride, climbing the stairs to the appellant’s apartment, and taking a “red
drink” from the appellant.30 Sgt B. remembered accepting drinks from the
appellant as well, then lying on the appellant’s bed and watching a movie
with the appellant until he fell asleep. He remembered Cpl K.I. being in the
other room.
    Cpl K.I.’s next memory, after accepting the red drink, was of feeling
something in his anus. He noticed only that he was lying flat, and it was
dark. He fell back into sleep or unconsciousness. When he finally awoke for
good, Cpl K.I. realized he was naked. He did not remember undressing. After
picking up his clothes from the floor and putting them on, he awoke Sgt B.
According to Sgt B., Cpl K.I. was “crying hysterically,” telling him he had
been raped and needed to get out of there. Outside the apartment, both Sgt
B. and Cpl K.I. called friends for rides. By this time, it was late afternoon,
after 1700.
    Sgt B.’s friend arrived first, and Cpl K.I. climbed into the front seat of her
car. Sgt B.’s friend noticed Cpl K.I. crying, and when she approached him, he
raised his hands defensively. He would not make eye contact with her, and he
hung his head and began to cry again. Sgt. B, his friend, and Cpl K.I. waited
until Cpl K.I.’s friend arrived, and then Sgt B. and Cpl K.I. left with him.
After accompanying his friend on a couple of errands, Cpl K.I. told his friend
what had happened. They went to the naval hospital aboard Camp Pendleton
and then to a civilian hospital for a sexual assault forensic exam.
    Significant findings arose from the evidence collected during Cpl K.I.’s
forensic exam. First, the appellant’s semen, identified by his DNA, was on
Cpl K.I.’s genitals, around the exterior of his anus, in his mouth, and, in large
quantity, on the right side of his chest. There was redness and swelling
around the exterior of the anus, interior laceration and broken blood vessels
in the anus, and an abrasion on his penis. Finally, at 0545, when the forensic
nurse examiner drew Cpl K.I.’s blood, his blood alcohol content (BAC) was
measured at .079 and .08. The government and defense toxicology expert
witnesses both estimated that, at the time of the alleged assault, Cpl K.I.’s
BAC was approximately .26.
    The appellant was convicted of penetrating Cpl K.I.’s anus with some
object without Cpl K.I.’s consent and while Cpl K.I. was incapable of


   30   Id. at 552.


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                      United States v. Upshaw, No. 201600053


consenting because of impairment by alcohol, a condition of which the
appellant was or should have been aware. Cpl K.I. remembered the sensation
of something penetrating his anus. The forensic evidence proved sexual
contact between Cpl K.I. and the appellant. But Cpl K.I. did not remember
anything else after he took the red drink from the appellant in his apartment.
He did not know how he came to lie naked on his stomach or what penetrated
his anus. The forensic evidence proves he was very intoxicated, but we are
unable to attribute the gaps in his memory to sleep, unconsciousness, a
blackout during which Cpl K.I. might have been active, or some combination
of all three states.
    Witnesses testified to Cpl K.I.’s genuine fear, anguish, and shame in the
hours after he awoke. But the uncertainty of having no memories also
contributed to Cpl K.I.’s distress. Cpl K.I. knew only what he had briefly felt
in his body and that he awoke naked. He had to infer what happened. Unlike
LCpl K.L.M., Cpl K.I. did not know when he fell asleep or under what
circumstances. Cpl K.I. never directly observed the appellant committing
sexual contact or a sexual act. When he awoke, the appellant was gone. When
trial counsel asked Cpl K.I. why he thought he had been sexually assaulted,
he replied, “[b]ecause I woke up naked.”31
    Without more direct testimony from Cpl K.I. about waking to a sexual act
and his efforts to resist it, the members were forced to examine the testimony
about the hours before the alleged assault and look more carefully at Cpl
K.I.’s and the appellant’s behavior. The appellant went to the bar, in the
company of only his dog, and introduced himself to two intoxicated Marines,
careful to identify himself as a Navy corpsman. He offered them a ride and a
free place to sleep off a day of heavy drinking. Then he offered them more
alcohol. For members mining for circumstantial evidence of the appellant’s
intent, the evidence of his assault of LCpl K.L.M., and the prosecutor’s advice
to consider that, take on more significance. For this reason, we are not
convinced beyond a reasonable doubt that the admission of charged
misconduct as propensity evidence and the flawed MIL. R. EVID. 413
instruction did not contribute to the appellant’s conviction for sexually
assaulting Cpl K.I.
C. Factual sufficiency of the sexual assault
    Before we can remand the charge of sexual assault against the appellant
for a rehearing, we must address his claim that the evidence is factually
insufficient.




   31   Id. at 555.


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                  United States v. Upshaw, No. 201600053


    We review the factual sufficiency of evidence de novo. Art. 66(c), UCMJ;
United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). “For factual
sufficiency, the test is whether, after weighing the evidence in the record of
trial and making allowances for not having personally observed the
witnesses, the members of the [appellate court] are themselves convinced of
the accused’s guilt beyond a reasonable doubt.” United States v. Turner, 25
M.J. 324, 325 (C.M.A. 1987). “By ‘reasonable doubt’ is not intended a fanciful
or ingenious doubt or conjecture, but an honest, conscientious doubt
suggested by the material evidence or lack of it in this case. . . . The proof
must be such as to exclude not every hypothesis or possibility of innocence,
but every fair and rational hypothesis except that of guilt.” United States v.
Loving, 41 M.J. 213, 281 (C.A.A.F. 1994).
    Although alcohol-induced blackouts prevented Cpl K.I. from being as
persuasive a witness as LCpl K.L.M., strong forensic and circumstantial
evidence leave us with no reasonable doubt about the appellant’s sexual
assault of Cpl K.I. The appellant lured Sgt B. and Cpl K.I. to his home then
plied them with more alcohol. Sgt B. remembered falling asleep while
watching a movie with the appellant. Cpl K.I. was in the next room,
presumably alone. With a BAC exceeding .26, we are confident Cpl K.I.
eventually passed out. Even when disturbed by the sensation of something
penetrating his anus, Cpl K.I. could not rouse himself to consciousness. This
evidence is sufficient for us to conclude, beyond a reasonable doubt, that
alcohol incapacitated Cpl K.I., rendering him unable to perceive and react to
what was happening to him.
    Forensic evidence revealed that the appellant’s penis came into contact
with Cpl K.I.’s genitals and anus. His penis breached Cpl K.I.’s mouth. He
ejaculated on Cpl K.I.’s chest, explaining the absence of semen from Cpl K.I.’s
anus. The appellant felt something penetrate his anus, and the appellant’s
penis was all over his body, so it is irrational not to conclude he penetrated
Cpl K.I.’s anus, with some object, for sexual gratification.
    Although we found the propensity evidence in the alleged sexual abusive
contact of LCpl K.L.M. likely contributed to the members’ findings regarding
Cpl K.I., we find the evidence of the appellant’s conduct with Cpl K.I. on 1
March 2015 is, by itself, factually sufficient. We are convinced beyond a
reasonable doubt that the appellant penetrated Cpl K.I.’s anus with some
object, while he was incapacitated by alcohol and without his consent.




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                     United States v. Upshaw, No. 201600053


D. Court-Martial order error
   Although not raised by the appellant, the staff judge advocate’s
recommendation and court-martial order do not reflect that, after the
members announced their findings, the military judge consolidated two
specifications of abusive sexual contact—Specifications 2 and 4 of the
Charge—into a single specification for findings.32
   We review error in the court-martial order under a harmless error
standard. United States v. Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App.
1998). The appellant has not asserted, and we do not find, that this error
materially prejudiced his substantial rights. But the appellant is entitled to a
court-martial order that correctly reflects the results of his proceeding. Id.
We order corrective action in the decretal paragraph.
                               III. CONCLUSION
    The findings of guilty to the Charge and its Specifications 1, 2, and 4 are
affirmed. The supplemental court-martial order shall reflect that
Specifications 2 and 4 of the Charge were consolidated into a single
specification for findings, which reads:
            In that Hospital Corpsman Third Class Darrius D. Upshaw,
         U.S. Navy, on active duty, did, at or near Marine Corps Base
         Camp Pendleton, California, on or about 30 October 2014,
         commit sexual contact upon Lance Corporal K.L.M., to wit:
         touching the said Lance Corporal K.L.M.’s penis with his hand:
             By causing bodily harm to him: to wit: an offensive
         touching, however slight, and
              When the said Lance Corporal K.L.M. was incapable of
         consenting to the sexual contact due to impairment by a drug,
         intoxicant, or other similar substance, and that condition was
         known or reasonably should have been known by the accused.33
   The findings of guilty to the Additional Charge and its two underlying
Specifications and the sentence are set aside. The record of trial is returned




    32 The military judge also consolidated two specifications of sexual assault—

Specifications 1 and 2 of the Additional Charge—into a single specification for
findings, but those findings are set aside.
   33   AE LXVIII at 1.


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                United States v. Upshaw, No. 201600053


to the Judge Advocate General of the Navy for remand to an appropriate
convening authority with authorization for a rehearing.
   Judge RUGH and Judge JONES concur.
                                      For the Court




                                      R.H. TROIDL
                                      Clerk of Court




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