UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                            LIND, KRAUSS, and PENLAND
                               Appellate Military Judges

                           UNITED STATES, Appellant
                                         v.
                            Specialist RILEY C. ROSE
                           United States Army, Appellee

                                   ARMY 20130068

                            Headquarters, Fort Stewart
                         Tiernan P. Dolan, Military Judge
            Lieutenant Colonel Francisco A. Vila, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain James
S. Trieschmann, Jr., JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Daniel D. Derner, JA; Captain Rachael T. Brant, JA (on brief).


                                   24 October 2014

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

LIND, Senior Judge:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of aggravated sexual assault, wrongful sexual contact, and
assault consummated by a battery in violation of Articles 120 and 128, Uniform
Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 920, 928 (2006 & Supp.
IV 2011). The convening authority approved the adjudged sentence of a bad-
conduct discharge and thirty-six months confinement.

       This case is before the court for review under Article 66, UCMJ. Appellant
assigns two errors and raises several matters pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982). We hold appellant’s assertions pursuant to Grostefon
are without merit. We agree with appellant that the evidence is factually insufficient
to support his conviction for wrongful sexual contact. See United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The government did not prove
beyond a reasonable doubt that appellant pressed his genitalia against the buttocks
ROSE — ARMY 20130068

of the alleged victim. As a result of the relief we will grant appellant, his second
assignment of error is rendered moot.

      We therefore set aside and dismiss Specification 3 of Charge I. The
remaining findings of guilty are AFFIRMED.

       Applying the factors in United States v. Winckelmann, we are confident we
can reassess appellant’s sentence. 73 M.J. 11, 15-16 (C.A.A.F. 2013). We note
there is no dramatic change in the penalty landscape or exposure. See id. The
military judge merged the offenses of wrongful sexual contact and assault
consummated by a battery for sentencing, therefore appellant’s maximum sentence
to confinement is reduced from 31 years to 30 years and six months. See Manual for
Courts-Martial, United States (2008 ed.), pt. IV, ¶¶ 45.f(2), (7), 54.e(2). The
aggravating circumstances of the wrongful sexual contact offense remain admissible
as aggravation evidence of the assault consummated by a battery. See Winckelmann,
73 M.J. at 16. The gravamen of appellant’s offenses remains his aggravated sexual
assault of the victim while she was substantially incapacitated. See id. Because
appellant was tried by a judge alone, we are more confident of the sentence the
military judge would have imposed for the remaining offenses. See id. Finally, this
court reviews the records of a substantial number of courts-martial involving
assaults and sexual offenses and we have extensive experience and familiarity with
the level of sentences imposed for such offenses under various circumstances. See
id.

       Reassessing the sentence on the basis of the error noted, the entire record, and
the principles of United States v. Sales, 22 M.J. 305, 307-08 (C.M.A. 1986), the
sentence is AFFIRMED. All rights, privileges, and property, of which appellant has
been deprived by virtue of that portion of the findings set aside by this decision, are
ordered restored.

      Judge KRAUSS and Judge PENLAND concur.


                                        FOR
                                        FORTHE
                                            THECOURT:
                                                COURT:



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




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