UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                            BURTON, HAGLER, and FLEMING
                               Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                       Private First Class JOSWEL R. LINO
                          United States Army, Appellant

                                    ARMY 20170545

                        Headquarters, 7th Infantry Division
                        Lanny J. Acosta, Jr., Military Judge
                  Colonel Russell N. Parson, Staff Judge Advocate


For Appellant: Lieutenant Colonel Tiffany D. Pond, JA; Major Todd W. Simpson,
JA; Captain Zachary A. Gray, JA (on brief and reply brief).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Captain John D. Martorana, JA (on brief).


                                      25 April 2019

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

FLEMING, Judge:

       Appellant asserts numerous reasons why his conviction for having sexual
intercourse with a child’s mother within the child’s presence is legally and factually
insufficient. We need only address one. Pursuant to our review of the record, we do
not find the government proved the charged language of “sexual intercourse” beyond
a reasonable doubt. We therefore hold appellant’s conviction of that specification is
factually insufficient.

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of sexual abuse of a child, in violation of
Article 120b, Uniform Code of Military Justice, 10 U.S.C. § 920b [UCMJ]. The
military judge acquitted appellant of a separate specification of sexual abuse of a
child. The convening authority approved the adjudged sentence of a bad-conduct
discharge and confinement for ninety days.
LINO—ARMY 20170545

                                   BACKGROUND

       The government charged appellant with two offenses in what one witness
described as “a one star motel [room].” More specifically, appellant was charged
with: (1) committing a lewd act upon MW, a child under the age of 12, by touching
her breasts and waist through her clothing, and (2) committing a lewd act upon MW
by having sexual intercourse with her mother, Ms. JW, while MW was in the room.
While the majority of the government’s case related to the first offense (of which
appellant was acquitted), we provide a broader context for the second offense.

       At the time of the charged offenses, JW was unemployed and living in a motel
room with her four children, all of whom were under the age of twelve. During this
timeframe, JW would sometimes leave the children alone in the room without any
supervision. MW, the oldest child, even testified they were left alone “all night” on
a few occasions. MW further explained she was responsible for taking care of her
younger sisters, and the children would “[eat] stuff that you could put water in and
then heat up in a microwave.” The motel room contained two beds; when she was
there, JW slept on one bed, and the children slept on the other.

       While living at the motel, JW brought numerous men into their room, to
include appellant, whom she met on a website. After appellant arrived at the room,
JW told him she was hungry, so he left and bought “McFlurries” for the group.
After appellant returned, the children ate “McFlurries,” watched a video on JW’s
phone, and then got ready for bed. As usual, the children got into one bed, and JW
(and appellant) got in the other.

       At trial, MW testified about what happened next. MW said her mother turned
off the lights and then started “having sex” with appellant. MW said she learned
about sex when she was “9 or 10” and it involves “[t]he penis and the vagina.”
When asked by the trial counsel how she knew they were having sex, MW explained
she could hear “grunting, moaning, [and] kissing and shuffling around the bed” and
“my mom’s pants were off.”

      MW also said, however, that JW and appellant were “under” the blankets, and
she could not tell whether appellant was wearing pants. Ultimately, MW saw “[JW]
naked and [appellant’s] upper half of his body.” When asked to clarify, MW
explained she saw JW naked when appellant “lifted his body up,” but the blankets
were still on top of “his bottom half.”

       Neither JW nor appellant testified at trial, but a local detective testified about
appellant’s statements during a police interview. In this interview, appellant
admitted going to JW’s hotel room and buying “McFlurries” for the group, but he
adamantly denied touching MW or having sexual intercourse with JW in front of her
children.



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LINO—ARMY 20170545

       Immediately after the government rested its case, the defense made a motion
for a finding of not guilty under Rule for Courts-Martial (R.C.M.) 917. In support
of this motion, the defense counsel argued:

             . . . [T]here’s absolutely no evidence before this court of
             actual sexual intercourse. The government has charged
             sexual intercourse. They have not charged simulated
             sexual act, there’s been no evidence of penetration, in fact
             the complaining witness’s testimony was that she could
             not tell if the pants were even off as it related to
             [appellant].

             ...

             There’s been no evidence at all that specifically goes to
             the charged act. The complaining witness described what
             she understood sexual intercourse to mean, abstractly.
             Then when asked specifically about what she observed in
             that moment, she did not describe any genitals that were
             exposed, she did not describe any penetration, she
             described sound that she heard. She described
             assumptions that she was making based off of what she
             knew sexual intercourse to be. There is no actual
             evidence that establishes that actual sexual intercourse
             occurred.

       After the military judge denied this motion in citing the standards of R.C.M.
917, the defense rested without presenting any evidence. During closing argument,
the defense made similar arguments related to the charged language:

             The government put up a slide that said [MW] experienced
             sounds, movement, and that she saw her mother’s genitals.
             Sir, hearing sounds of grunting or moaning, seeing
             movement in another bed, does not sexual intercourse
             make . . . . The sounds that she heard, these movements
             that she saw could have been kissing, could have been
             cuddling, could have been, for lack of a better word, dry
             humping. These are not things that the accused was
             charged with. [MW] testified that she did not even know
             if the accused’s pants were off because she never saw
             whether his genitals were exposed, she never saw anything
             below his waist. The fact that her mother may have been
             naked during this time does not necessarily mean that sex
             was happening.



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LINO—ARMY 20170545

                              LAW AND DISCUSSION

       Article 66, UCMJ, establishes our statutory duty to review a record of trial for
legal and factual sufficiency de novo. United States v. Walters, 58 M.J. 391, 395
(C.A.A.F. 2003). We may affirm only those findings of guilt that we find correct in
law and fact and determine, based on the entire record, should be approved. Id.
       In weighing factual sufficiency, we take “a fresh, impartial look at the
evidence,” applying “neither a presumption of innocence nor a presumption of
guilt.” United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). To affirm a
conviction, “after weighing the evidence in the record of trial and making
allowances for not having personally observed the witnesses, [we must be]
convinced of [appellant’s] guilt beyond a reasonable doubt.” United States v.
Turner, 25 M.J. 324, 325 (C.M.A. 1987).

       Pursuant to our review of the record, we simply do not find the government
proved the charged language of “[having] sexual intercourse” beyond a reasonable
doubt. 1 As the defense counsel intimated, the government could have charged
broader language to encompass a wider variety of sexual conduct, but it did not. It
is clear that something of a sexual nature was happening under the blankets, but the
evidence did not sufficiently prove that such activity involved “sexual intercourse.”

       In sum, after applying the specific facts of this case to the narrow language of
the charged offense, we find appellant’s conviction to be factually insufficient. We
have reviewed the evidence, and we have taken into consideration that the military
judge saw and heard the witnesses and we did not. However, we can only affirm a
conviction when we are convinced of an appellant’s guilt beyond a reasonable doubt.
This is not such a conviction. 2


1
  Appellant makes several additional arguments as to why his conviction is legally
and factually insufficient, including that his conduct “could not be indecent under
the circumstances” and “there was no evidence appellant ‘intentionally’ had sexual
intercourse in the presence of a child.” To be clear, our opinion does not rest or rely
on any of these arguments, as we merely find the government did not prove the
charged language of “sexual intercourse.”
2
  We have also considered whether to affirm appellant’s conviction by exceptions
and substitutions. However, under the specific facts and circumstances of this case
(to include the charged language and actions of the defense during trial), we find any
such efforts would constitute a fatal variance. See, e.g., United States v. Hadley,
ARMY 20150766, 2017 CCA LEXIS 309 (Army Ct. Crim. App. 2 May 2017) (mem.
op.).




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LINO—ARMY 20170545

                                  CONCLUSION

       The findings of guilty and the sentence are SET ASIDE. Specification 2 of
The Charge is DISMISSED. All rights, privileges, and property of which appellant
has been deprived by virtue of the findings and sentence set aside by this decision
are ordered restored. See UCMJ arts. 58b(c) and 75(a).

      Senior Judge BURTON and Judge HAGLER concur.

                                      FOR THE
                                      FOR THE COURT:
                                              COURT:




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




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