               UNITED STATES NAVY-MARINE CORPS
                  COURT OF CRIMINAL APPEALS
                       WASHINGTON, D.C.
                                  Before
              R.Q. WARD, J.R. MCFARLANE, K.M. MCDONALD
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                         CHRISTOPHER JANUSKI
                         ENSIGN (O-1), U.S. NAVY

                           NMCCA 201300210
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 31 January 2013.
Military Judge: CDR Lewis Booker, JAGC, USN.
Convening Authority: Commander Navy Region Southeast,
Jacksonville, FL.
Staff Judge Advocate's Recommendation: CDR M.C. Holifield,
JAGC, USN.
For Appellant: F.J. Spinner, Esq.; LT David Dziengowski,
JAGC, USN; LT Jennifer Myers, JAGC, USN.
For Appellee: LCDR Keith Lofland, JAGC, USN; LT Ian
MacLean, JAGC, USN.

                              30 June 2014

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                     OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     A panel of officer members sitting as a general court-
martial convicted the appellant, contrary to his pleas, of one
specification of rape by force, in violation of Article 120,
Uniform Code of Military Justice, 10 U.S.C. § 920. The members
sentenced the appellant to four years of confinement and a
dismissal. The convening authority (CA) approved the sentence
as adjudged and, except for the dismissal, ordered the sentence
executed.

     The appellant raises two assignments of error. First, he
claims that his conviction is legally and factually
insufficient. Second, he claims that the CA’s decision to refer
the charge to a general court-martial against the recommendation
of the Article 32 Investigating Officer (IO) and then declining
to grant clemency when taking post-trial action, created an
appearance of unlawful command influence (UCI).1 We disagree.

     After carefully considering the record of trial and the
submissions of the parties, we are convinced that the findings
and the sentence are correct in law and fact, and that no error
materially prejudicial to the substantial rights of the
appellant was committed. Arts. 59(a) and 66(c), UCMJ.

                                 Background

     The appellant and the victim (MD) were both students when
they met at flight school. Since she was ahead of the appellant
in the training pipeline, they exchanged phone numbers in the
event he had any questions “coming up through the school.”
Record at 398. About a month later, the appellant “Facebook
friended” MD, and soon thereafter invited her to accompany him
to a concert out of town. Uncomfortable with the idea since she
did not know him well, MD instead invited the appellant to a
pool party at her house with her roommates and some of their
friends. MD thought that there might be a mutual interest in
each other, but she wanted to get to know the appellant better
“to see if there was a possibility of maybe anything going
forward.” Id. at 402. The appellant accepted her invitation.

     At trial, MD testified that the appellant became visibly
intoxicated during the party and made a number of physical
advances towards her throughout the evening. She further
testified that she rebuffed his advances. Other witnesses from
the party also testified that the appellant was notably
intoxicated and corroborated MD’s claim that she rebuffed the
appellant’s advances. These same witnesses also testified that
MD consumed very little alcohol that day and did not appear
intoxicated.

       MD and the appellant played a game of pool in the living
room as the party was winding down. As guests were leaving, one
1
  This issue is raised pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1992).

                                      2
offered the appellant a ride home but he declined. Afterward,
one of MD’s roommates set up an air mattress in a spare room and
told the appellant that he could sleep there. After everyone
else had left or gone to sleep, MD was cleaning the living room
when the appellant came out of the spare room and asked her to
come over so that he could “show [her] something.” Id. at 415.

     At trial, MD testified that when she approached the
appellant, he tried to kiss her. When MD refused his advances,
MD testified that the appellant grabbed her wrist and pulled her
down onto the air mattress. Then, according to MD, the
appellant held both of her wrists above her head with one hand,
while pulling her underwear to the side with his other hand and
penetrating her vagina with his penis.

    Additional facts are developed below as necessary.

                  Legal and Factual Sufficiency

     In his first assignment of error, the appellant asserts
that the guilty finding is both legally and factually
insufficient. Specifically, the appellant cites a number of
supposed weaknesses in the Government’s case to include: that
the Government failed to prove penetration; that MD lacked
credibility due to her multiple inconsistent statements and her
motive to misrepresent; and the lack of any corroborative
evidence. We disagree.

     We review questions of legal and factual sufficiency de
novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002). We review the legal sufficiency of the evidence by
determining “whether, considering the evidence in the light most
favorable to the prosecution, any reasonable fact-finder could
have found all the essential elements beyond a reasonable
doubt.” United States v. Day, 66 M.J. 172, 173-74 (C.A.A.F.
2008) (citing United States v. Turner, 25 M.J. 324, 324 (C.M.A.
1987)). The test for factual sufficiency is whether “after
weighing all the evidence in the record of trial and recognizing
that we did not see or hear the witnesses as did the trial
court, this court is convinced of the accused's guilt beyond a
reasonable doubt.” United States v. Rankin, 63 M.J. 552, 557
(N.M.Ct.Crim.App. 2006), aff’d, 64 M.J. 348 (C.A.A.F. 2007)
(citing Turner, 25 M.J. at 325 and Art. 66(c), UCMJ).
Reasonable doubt, however, does not mean that the evidence must
be free from conflict. Id.
     We are not persuaded by the appellant’s claim that the
Government failed to prove penetration. Although MD described

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the two acts of penetration as “rape,” she was able to clarify,
with follow-on questions from trial counsel, that the appellant
had penetrated her vagina with his penis. Record at 421-22.
Moreover, MD testified that the appellant ejaculated inside her
and that she sought testing for possible pregnancy and sexually
transmitted diseases.

     Second, the appellant alleges that MD’s delay in reporting,
her inconsistent statements and motive to misrepresent all
undermine the members’ verdict. At trial, however, MD provided
reasons to the members explaining: (1) that she delayed
reporting because she did not want to be pulled from flight
training; and (2) that she initially lied about certain facts
because she had a hard time accepting and reporting that she had
been raped. While civilian defense counsel cross-examined MD at
length in these areas, other Government witnesses corroborated
key aspects of MD’s testimony. We also note that the military
judge properly instructed the members to consider MD’s
credibility and prior inconsistent statements in reaching their
verdict.

     After carefully reviewing the record of trial and
considering the evidence in the light most favorable to the
prosecution, we are convinced that a reasonable fact-finder
could have found all the essential elements beyond a reasonable
doubt. Furthermore, after weighing all the evidence in the
record of trial and having made allowances for not having
personally observed the witnesses, we are convinced beyond a
reasonable doubt of the appellant’s guilt.

                   Unlawful Command Influence

     In his second assignment of error, the appellant contends
that the military judge erred in denying the defense’s motion to
dismiss the charge and specifications due to UCI. He argues
that “the tremendous Congressional and public pressure being
placed on Department of Defense and convening authorities . . .
in cases where sexual assault is alleged” created the appearance
of UCI in the appellant’s court-martial. Appellant’s Brief of
22 Jan 2014 at 9. In support, he points to two actions by the
CA; referral to trial contrary to the Article 32 IO’s
recommendation and the CA’s post-trial denial of the appellant’s
clemency request. Id. at 8-9.

     “Congress and this court are concerned not only with
eliminating actual unlawful command influence, but also with
‘eliminating even the appearance of unlawful command influence

                                4
at courts-martial.’” United States v. Lewis, 63 M.J. 405, 415
(C.A.A.F. 2006) (quoting United States v. Rosser, 6 M.J. 267,
271 (C.M.A. 1979)). An accused has the initial burden of
raising the issue of unlawful command influence. United States
v. Stombaugh, 40 M.J. 208, 213 (C.M.A. 1994). The defense must
“show facts which, if true, constitute unlawful command
influence, and that the alleged unlawful command influence has a
logical connection to the court-martial, in terms of its
potential to cause unfairness in the proceedings.” United
States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999) (citations
omitted). The quantum of evidence necessary to raise the
specter of unlawful command influence is “‘some evidence.’”
Biagase, 50 M.J. at 150 (quoting United States v. Ayala, 43 M.J.
296, 300 (C.A.A.F. 1995)); see also United States v. Simpson, 58
M.J. 368, 373 (C.A.A.F. 2003). The burden of disproving the
existence of unlawful command influence or proving that it will
not affect the proceeding does not shift until the defense meets
its burden of production.

     Allegations of unlawful command influence are reviewed de
novo. United States v. Harvey, 64 M.J. 13, 19 (C.A.A.F. 2006);
United States v. Villareal, 52 M.J. 27, 30 (C.A.A.F. 1999);
United States v. Wallace, 39 M.J. 284, 286 (C.M.A. 1994). We
necessarily begin our analysis by determining whether the
defense met its initial burden of providing “some evidence”
necessary to make a colorable showing of unlawful command
influence.

     In the appellant’s case, the CA referred the charge and
specifications to trial despite the Article 32 IO’s
recommendation to the contrary. The appellant contends that the
CA did so because of pressure surrounding the issue of sexual
assault in the military. At trial, the military judge concluded
that the defense presented insufficient evidence of UCI to
warrant shifting the burden of proof to the Government on the
issue and, alternatively, he was convinced beyond a reasonable
doubt that the charge and specifications were free from actual
or apparent UCI.

     We too conclude that the appellant has failed to meet his
initial burden to provide “some evidence” of facts which, if
true, constitute UCI. The appellant’s unsubstantiated and
ambiguous claim of pressure on the CA to refer the charge and
specification to acourt-martial the appellant in the face of a
contrary recommendation does not in and of itself suggest UCI.
Nor does the CA’s decision to deny clemency itself suggest that
he was unlawfully influenced by more senior authority in the

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chain-of-command. Mere speculation that UCI occurred because of
a specific set of circumstances is not sufficient. United
States v. Ashby, 68 M.J. 108, 128 (C.A.A.F. 2009).

                        Conclusion

     Accordingly, the findings and the sentence, as approved by
the CA, are affirmed.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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