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

                           UNITED STATES, Appellee
                                        v.
                           Specialist EDWIN ZELAYA
                          United States Army, Appellant

                                  ARMY 20110507

                      Headquarters, III Corps and Fort Hood
                         Gregory A. Gross, Military Judge
                   Colonel Stuart W. Risch, Staff Judge Advocate


For Appellant: Lieutenant Colonel Jonathan F. Potter, JA; Captain A. Jason Nef,
JA; Captain J. Fred Ingram, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Elisabeth A. Claus, JA; Captain Timothy C. Erickson, JA (on brief).


                                  27 February 2014

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

KRAUSS, Judge:

       A panel composed of officer members sitting as a general court-martial
convicted appellant, contrary to his pleas, of one specification of wrongful sexual
contact in violation of Article 120, Uniform Code of Military Justice, 10 U.S.C.
§ 920 (2006 & Supp. I 2008) [hereinafter UCMJ]. He was acquitted of five other
specifications levied under Article 120, UCMJ, including aggravated sexual assault,
two specifications of aggravated sexual contact with a child, and two additional
specifications of wrongful sexual contact. Each specificat ion in this case involved
different alleged victims. The convening authority approved the adjudged sentence
to a bad-conduct discharge, confinement for six months, forfeiture of all pay and
allowances, and reduction to the grade of E-1.

      This case is before the court for review under Article 66, UCMJ . Appellant
assigns three errors and raises a number of issues pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982). Certain assertions of error and matters
ZELAYA — ARMY 20110507

relative to the sufficiency of the evi dence, deficiencies with the judge’s instructions ,
and trial counsel’s argument on findings warrant b rief discussion but no relief.

       We find the evidence legally and factually sufficient to support appellant’s
guilt. See United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). SR’s
testimony establishes that appellant intentionally touched her breast and buttocks,
that he did so without SR’s permission, that SR was offended by that touching, and
that SR understood the touching to be sexual in natu re. The context within which
appellant committed these acts and the nature of the touching leave us no
reasonable doubt over appellant’s intent and that it meets the statutory requirement
under Article 120(t)(2), UCMJ. See Manual for Courts-Martial, United States (2008
ed.), pt. IV, ¶ 45.a(t)(2).

       We next turn to appellant’s allegation that the judge failed to instruct on the
lesser-included offense of assault consummated by a battery. A military judge has a
sua sponte duty to instruct the members on any lesser-included offenses reasonably
raised by the evidence. United States v. Arriaga, 70 M.J. 51, 55 (C.A.A.F. 2011);
United States v. Wells, 52 M.J. 126, 129-30 (C.A.A.F. 1999). The military judge
should only instruct on a lesser-included offense “where the greater offense requires
members to find a disputed factual element which is not required for conviction of
the lesser violation.” United States v. Tunstall, 72 M.J. 191, 192 (C.A.A.F. 2012);
accord Sansone v. United States, 380 U.S. 343, 350 (1965). Omission of instruction
on a lesser-included offense that is raised by the evidence must be tested for
harmlessness beyond a reasonable doubt. See United States v. Brown, 63 M.J. 735,
740 (Army Ct. Crim. App. 2006); Wells, 52 M.J. at 130 (“[R]eversal is required
‘only when an appellate court is convinced that the evidence issues are such that a
rational jury could acquit on the charged crime but convict on the lesser crime.’”).

       We agree with the judge and parties below that the ev idence did not raise the
lesser-included offense of assault consummated by a battery. See generally United
States v. Griffin, 50 M.J. 480 (C.A.A.F. 1999). Even if we assume error , any error
was harmless beyond a reasonable doubt because we do not find evidence issues
such that a rational panel could acquit of the wrongful sexual contact but convict of
the assault consummated by a battery. See Wells, 52 M.J. at 130-31. The offensive
touching in this case, coupled with the nature and circumstances of the touching
which establishes the requisite intent, constitute sexual contact by definition.
Therefore, we do not find any evidence “from which the members could reasonably
find that appellant committed” a battery only rather than wrongful sexual contact.
See id.

      We next turn to the fact that while the judge offered a complete definition of
sexual contact for the specification relative to wrongful sexual contact with CO (for
which appellant was acquitted), he neglected to do so in relation to the alleged
wrongful sexual contact with SR and CB (for which appellant was convicted and



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ZELAYA — ARMY 20110507

acquitted, respectively). It is necessary at the outset to underline that the defense
never objected to the complained lack of instruction or requested additional
instruction at trial. Under these circumstances, we are limited to review for plain
error and ultimately find none. See United States v. Simpson, 58 M.J. 368, 378-79
(C.A.A.F. 2003); United States v. Glover, 50 M.J. 476, 478 (C.A.A.F. 1999).
Because the judge provided definition of sexual contact as it related to other
specifications and that definition was available to the panel in deliberations, we do
not find the instructions so incomplete as to constitute plain error. See Simpson, 58
M.J. at 378-79; Glover, 50 M.J. at 478. Assuming for the sake of this decision that
this failure amounts to error that is plain, we similarly find no prejudice. The
incomplete instruction did not undercut appellant’s theory of defense which was that
SR should not be believed or, if the touching occurred, that she essentially permitted
it. Nor do we find that absence of the definition of sexual contact could reasonably
have contributed to the panel’s finding in light of the entire record and the fact that
the definition of sexual contact was provided as part of the instructions as a whole
and available to the panel in deliberations. See Glover, 50 M.J. at 478.

      Finally, we address concern with trial counsel’s findings argument, which
included the following:

             Finally, I’ll -- -- I’ll tell you that, when you’re weighing
             the reasons why people might want you to believe the
             version of the facts that -- -- that their advocate recites to
             you, if you believe that these witnesses are all lying, then
             he keeps his freedom and maintains his professional career
             and his reputation and he retains his income and, most
             dangerously of all, he gets tacit approval of his coercive
             and aggressive sexual behavior. And what does he stand
             to lose if you disbelieve all the victims? Nothing. That’s
             the only one-sided equation we’ve got in this whole case.

       Because defense counsel did not object , we review this issue of improper
argument for plain error as well. See United States v. Fletcher, 62 M.J. 175, 179
(C.A.A.F. 2005). It is difficult to gauge how plain the impropriety of this argument
was in light of its somewhat confused delivery. However, it smacks of a
nullification argument in reverse. It seems counsel argued that even if the panel
determined that none of the government’s witnesses were credible , they should
convict anyway because it would be terrible to permit someone who behaves with
such sexual aggression to go free. Such argument would be wholly improper ,
especially as it relates to the heightened attention concentrated on the issue of
accountability for sexual assault in recent history. Assuming, for the sake of this
decision, that the error was plain, we must yet test for prejudice. Id. at 184-85. In
light of the essentially uncontroverted evidence that appellant grabbed SR’s buttocks
and breast without her permission under circumstances that warrant inference of the



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ZELAYA — ARMY 20110507

requisite intent, we are confident that, despite any impropriety with argument, the
court-martial convicted appellant on the evidence and not on the statements of trial
counsel. See United States v. Halpin, 71 M.J. 477, 479-80 (C.A.A.F. 2013);
Fletcher, 62 M.J. at 185.

       We have considered each of the errors assigned separately and find that none
warrant relief and that, assuming error in each case, such error was harmless. We
also do not find that “there is a reasonable possibility that, taken cumulatively, those
errors might have contributed to the conviction.” United States v. Flores, 69 M.J.
366, 373 (C.A.A.F. 2011).

      After consideration of the entire record, the parties’ briefs, and the matters
personally raised by appellant pursuant to Grostefon, the findings of guilty and the
sentence are AFFIRMED.

      Senior Judge LIND and Judge BORGERDING concur.


                                        FOR THE
                                        FOR THE COURT:
                                                COURT:




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




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