UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                           Before
                            MULLIGAN, FEBBO, and SCHASBERGER
                                  Appellate Military Judges

                               UNITED STATES, Appellee
                                            v.
                            Specialist MIKEL K.W. TILLMAN
                              United States Army, Appellant

                                        ARMY 20160449

                 Headquarters, United States Army North (Fifth Army)
                Douglas K. Watkins and Jeffery R. Nance, Military Judges
                    Colonel Jonathan A. Kent, Staff Judge Advocate

For Appellant: Lieutenant Colonel Tiffany M. Chapman, JA; Major Todd W.
Simpson, JA; Captain Bryan A. Osterhage, JA (on brief); Major Jack D. Einhorn, JA;
Captain Bryan A. Osterhage, JA (on reply brief).

For Appellee: Colonel Steven P. Haight, JA; Major Hannah E. Kaufman, JA;
Captain Jessika M. Newsome, JA (on brief).

                                        31 January 2019
                                   ----------------------------------
                                    MEMORANDUM OPINION
                                   ----------------------------------

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

FEBBO, Judge:

       Appellant alleges his counsel were ineffective during a sexual assault trial by
failing to utilize information about the victim’s alcohol tolerance, mental health, and
medical diagnosis. We find appellant has failed to establish prejudice from any
alleged deficiency by his counsel. Accordingly, we affirm the findings and
sentence.

      This case is before us under Article 66, Uniform Code of Military Justice, 10
U.S.C. § 866 (2012) [UCMJ]. 1 Of the issues appellant raises on appeal, one warrants

1
  A military judge sitting as a general court-martial convicted appellant, contrary to
his pleas, of one specification of sexual assault, in violation of Article 120, UCMJ.
The military judge sentenced appellant to a dishonorable discharge and confinement
for two years. The convening authority approved the adjudged sentence.
TILLMAN—ARMY 20160449

discussion, but no relief. 2, 3 Appellant claims his trial defense counsel were
ineffective in various ways, to include failing to pursue evidence of the victim’s
potential medical condition – serotonin syndrome – that could have provided defense
counsel other avenues to create reasonable doubt. We disagree and affirm.




2
  Appellant also asserts this court cannot complete a legal and factual sufficiency
review of the charge of which appellant was convicted because the military judge, by
exception, found appellant not guilty of the charge of sexual assault by bodily harm.
The government, in one specification, charged appellant under two separate theories
of criminal liability – committing a sexual act by bodily harm and a sexual act on a
person incapable of consent:

             In that [appellant] . . . did . . . commit a sexual act upon
             [SPC GE], to wit: penetration of her vulva with his penis,
             by causing bodily harm to her, to wit: penetration of her
             vulva with his penis; when [SPC GE] was incapable of
             consenting to the sexual act 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.

The facts necessary to prove each theory are different. The military judge found
appellant guilty of the latter theory.

In conducting its Article 66(c), UCMJ, legal and factual review of a charge, this
court may “consider evidence supporting an offense for which an appellant was
acquitted in evaluating whether evidence supported a different offense of which an
appellant was convicted.” United States v. Rosario, 76 M.J. 114, 118 (C.A.A.F.
2017). The military judge, in excepting out the bodily harm language and finding
appellant guilty of the second theory, did not acquit appellant of the penetrating SPC
GE’s vulva with his penis. Both theories alleged a sexual assault by penetration of
SPC GE’s vulva with appellant’s penis. The second theory required the government
to prove incapacitation and appellant’s knowledge of SPC GE’s incapacitation. The
remaining conduct of the specification constitutes an offense under Article 120,
UCMJ.
3
 We have considered matters personally asserted by appellant under United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982); they do not warrant relief.



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                                 BACKGROUND

                       A. Facts and evidence adduced at trial

      Appellant and Specialist (SPC) GE were assigned as chaplain assistants at
Fort Sam Houston, Texas. They were friends for several months and SPC GE
considered appellant her “battle buddy.” They had no romantic relationship;
appellant was married and SPC GE had a boyfriend stationed in Japan.

       For her twenty-first birthday, Specialist (SPC) GE wanted to celebrate with
appellant and some other friends. Before going out, SPC GE “pregamed” in her
room to get “buzzed” by drinking vodka and cranberry juice. Between 1800 and
2000, SPC GE drank two or three, eight to nine ounce glasses of vodka and
cranberry juice. She did not take any medications that day. Afterward, SPC GE
went over to Private (PV2) Hamilton’s barracks room, where several other soldiers,
to include appellant, were drinking. Appellant and PV2 Hamilton were friends.
Specialist GE’s memory became disjointed at this point in the evening. Although
SPC GE initially declined offered drinks of tequila, she consumed more alcohol
while at PV2 Hamilton’s room. Specialist GE later could recall fragmented
snapshots of what occurred the rest of the evening as she went in and out of
consciousness.

       Specialist GE recalled PV2 Hamilton pushing her onto his bed. 4 She next
remembered waking up, with PV2 Hamilton in front of her, appellant moving behind
her, and hearing PV2 Hamilton say, “come hit that.” Appellant came up behind her
and inserted his penis inside her vulva. She couldn’t remember the actual
penetration, but woke up with him moving his penis in and out of her vulva. She
recalled putting her hands down to her vaginal area to stop appellant. After that
attempt failed, she passed out. She could also remember lying on her back and
seeing a person – not PV2 Hamilton – standing in the door.

      Specialist GE’s next memory was of falling on the floor, landing in her own
vomit. After this occurred, she was able to find her cell phone and sent a video
message to her friend, PV2 Woodhouse, asking for help. In this video, Specialist
GE appeared very intoxicated. Private Woodhouse contacted SPC GE’s supervisor,
Chaplain McGruder and the two went to the barracks.

      Once at the barracks, the chaplain spoke to appellant, who explained SPC GE
came over to the room intoxicated, continued to drink, and eventually passed out.
Since appellant and others at the party did not know where SPC GE lived, they left


4
 A military judge sitting as a general court-martial acquitted PV2 Hamilton of
sexual assault of SPC GE, assault consummated by battery of SPC GE, and
obstruction of justice.


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TILLMAN—ARMY 20160449

her sleeping in PV2 Hamilton’s barracks room. Chaplain McGruder and PV2
Woodhouse went into the room and found SPC GE lying unconscious in her own
vomit, with her pants partially pulled down below her waist.

        As Chaplain McGruder and PV2 Woodhouse drove SPC GE to the hospital,
SPC GE hyperventilated, convulsed, and screamed while her eyes remained closed.
Once there, the hospital staff had to restrain and intubate SPC GE. At around 0140
hours the next morning, SPC GE’s blood alcohol content (BAC) registered at
0.160%. 5 Tests administered at the hospital did not detect other medications or
drugs. 6

       The following day, a SANE examination was completed and DNA evidence
was collected from SPC GE, PV2 Hamilton, and appellant. None of appellant’s or
PV2 Hamilton’s DNA was found inside or on SPC GE. Specialist GE’s DNA was
detected from samples taken from the inside front area of PV2 Hamilton’s
underwear. Specialist GE’s DNA was found on swabs taken from appellant’s penis.
A DNA expert testified at trial that it was 3.1 quadrillion times more likely that the
DNA originated from SPC GE and appellant than appellant and an unknown
individual.

      During a subsequent interview conducted by the Army Criminal Investigation
Command (CID), appellant explained that SPC GE arrived at PV2 Hamilton’s room
drunk. While there she drank more alcohol and acted somewhat different. Since she
was drunk, appellant claimed he and PV2 Hamilton left her to sleep in the barracks
room bed. Appellant did not testify at the trial.

                                       B. Trial

       At trial, the government presented two theories of criminal liability. The
government alleged appellant caused bodily harm by penetrating SPC GE’s vulva
with his penis without her consent, and, alternatively, appellant penetrated SPC
GE’s vulva with his penis when he knew or reasonably should have known SPC GE
was incapable of consenting to the sexual act due to impairment by a drug,
intoxicant, or other similar substance.




5
  The actual BAC was 0.193%. However, the government expert testified that based
on how the BAC was measured at the hospital, the actual results would indicate a
BAC around 0.160%.
6
  The toxicology screen tested for alcohol, amphetamines, barbiturates,
benzodiazepines, cannabinoids, cocaine, opiates, and PCP. The screen did not
include tests for other drugs, to include Zoloft.


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TILLMAN—ARMY 20160449

       In support of the second theory, the government presented testimonial and
documentary evidence to establish SPC GE’s level of intoxication. The government
also portrayed SPC GE as an infrequent drinker who was more susceptible to the
effects of alcohol. A government expert testified – and the defense expert agreed –
that SPC GE’s BAC was around .214 mg/dl at the time of the assault. The
government expert testified that for some people, this level of intoxication could
result in a stupor or unconsciousness. The expert stated SPC GE’s symptoms, to
include unconsciousness, vomiting, and disorientation, were consistent with her
level of intoxication.

       The defense theory was to show, if sexual activity occurred, SPC GE was in a
blacked out state and fully capable of consenting. 7 The defense cross-examined
SPC GE, among other things, on inconsistencies in her testimony, gaps in her
memory, and her history of alcohol use. The defense also impeached SPC GE with
prior inconsistent statements, to include statements she made during the SANE exam
that she was unsure about being penetrated during the assault.

      Both the government and defense toxicology experts thought it would be
highly unusual for someone – even with a .210% BAC – to exhibit such severe
symptoms of intoxication as did SPC GE. The defense expert testified that SPC
GE’s level of intoxication was more consistent with the level that would cause a
blackout, or alcohol induced amnesia. If SPC GE was blacked out she would not
have memories of the evening but would have been capable of consent.

      With regards to the DNA evidence, the government expert conceded on cross-
examination that the test could not determine if the source of SPC GE’s DNA was
from fluid or skin cells. Defense counsel later argued that the DNA could have
come from a source other than penile penetration.

      At trial, neither the government nor the defense introduced SPC GE’s medical
records from her visit to the emergency room and subsequent stay in the hospital.


7
  We ordered appellant’s trial defense counsel, Captains (CPT) NG and BJ to
provide affidavits responding to the various IAC claims contained in appellant’s
initial brief to this court. Pursuant to United States v. Ginn, 47 M.J. 236 (C.A.A.F.
1997), we have analyzed whether a post-trial evidentiary hearing is required. After
applying the Ginn principles, we find such a hearing is not required in this case. Id.
at 248. Considering the third Ginn factor, appellant’s affidavit is factually adequate,
and the government’s affidavits do not contest the fact that an alternate defense
theory focusing on evidence of serotonin syndrome or possible drug-alcohol
interaction was not presented on the merits. Any factual disputes about the findings
phase of trial are not controlling in deciding the legal issue of ineffective assistance
of counsel on appeal.



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TILLMAN—ARMY 20160449

Specifically, defense counsel did not explore the possibility of a drug-alcohol
interaction or serotonin syndrome.

                C. Evidence related to ineffective assistance of counsel.

      Appellant’s IAC claim, in part, relates to his trial defense counsel’s failure to
explore or use at trial SPC GE’s diagnosis of serotonin syndrome.

       Prior to the trial on the merits, the government provided defense counsel
redacted medical records of SPC EG’s stay in the hospital following the assault (ICU
records). 8 After obtaining these records, defense counsel submitted a motion under
Military Rule of Evidence [Mil. R. Evid.] 513 to obtain SPC GE’s mental health
records, attaching as an exhibit the ICU records. In testimony on this motion, SPC
GE admitted that she had been prescribed the drug Zoloft, 9 but had not taken the
drug for about five days before the assault. The emergency medical staff nurse who
treated SPC GE testified SPC GE’s BAC was “very high” and she thought SPC GE
was experiencing “acute alcohol intoxication.” After hearing testimony from
additional witnesses, the military judge denied defense counsel’s motion. 10

      The ICU records reflected SPC GE was severely agitated and combative when
brought to the emergency room and was therefore intubated and sedated. Medical
personnel noted SPC EG had been prescribed Zoloft. The ICU records show SPC
GE was diagnosed with serotonin syndrome and ethanol intoxication.

        In preparation for trial, the military judge granted defense counsel’s request
for Doctor TL, a forensic toxicologist, to serve as a defense consultant. Doctor TL
later testified for the defense at trial. Defense counsel provided Dr. TL, among
other things, SPC GE’s ICU records, which included the references to serotonin




8
    The redactions in the record related to SPC GE’s mental health diagnosis.
9
  Zoloft is a selective serotonin reuptake inhibitor (SSRI) commonly prescribed for
conditions such as depression, obsessive-compulsive disorder, panic disorder, post-
traumatic stress disorder, and anxiety. See Prescribers Digital Reference, sertraline
hydrochloride – Drug Summary, https://www.pdr.net/drug-summary/Zoloft-
sertraline-hydrochloride-474.3608 (last visited 25 Jan. 2019).
10
   The military judge later denied defense counsel’s request to reconsider the Mil.
R. Evid. 513 ruling.



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TILLMAN—ARMY 20160449

syndrome, and SPC GE’s Zoloft prescription. 11 Appellant’s trial defense counsel did
not ask Dr. TL about serotonin syndrome and Dr. TL did not raise any concerns
about the diagnosis to counsel.

       The affidavits submitted by trial defense counsel do not indicate that they
independently researched or consulted a medical doctor or mental health
professional concerning serotonin syndrome. However, the ER nurse who treated
SPC GE testified during the Mil. R. Evid. 513 motion hearing that SPC GE’s alcohol
level was “very high” and that a toxicology screening did not show the presence of
any drugs in her system. Captain BJ noted that “[t]he hospital records indicated that
serotonin syndrome was initially ‘suspected,’ but later noted her ‘UDS [Urine Drug
Test] was negative’ and her ‘supervisors are checking her dorm room [sic] for any
evidence of a possible co-ingestion.’” In short, CPT BJ concluded that pursuing a
possible “theory of drug-alcohol interaction” would not likely be successful.

                               D. Serotonin Syndrome

       Serotonin syndrome is a condition caused by excessive levels of serotonin in
the body. See Edward W. Boyer & Michael Shannon, Current Concepts: Serotonin
Syndrome, 352 N. Engl. J. Med. 1112 (17 Mar. 2005). 12 It is associated with various
drugs, to include SSRIs, such as Zoloft. Signs of excess serotonin “range from
tremor and diarrhea in minor cases to delirium, neuromuscular rigidity, and
hyperthermia in life threatening cases.” Id. Changes in mental status can, in


11
   At trial, Dr. TL stated he had reviewed numerous documents, to include the
medical reports from SPC GE’s visit to the hospital following the assault.
Appellant, in his initial brief filed with the court, asserted counsel was ineffective
for failing to inform Dr. TL with records showing the Zoloft prescription and
serotonin syndrome diagnosis. We accepted a statement submitted by appellant from
Dr. TL, made two years after the trial, wherein Dr. TL stated he did not recall being
aware of the prescription or diagnosis. In this submission, Dr. TL stated he could
not recall being aware SPC GE was proscribed Zoloft and Robaxin around the time
of the assault. He also could not recall being aware of the possibility SPC GE could
have been exhibiting the symptoms of serotonin syndrome the evening of the assault.
Doctor TL stated the syndrome could have had bearing on the case and could have
influenced his testimony. However, Dr. TL added that considering the video, it was
hard to deny that SPC GE “obviously was extremely impaired no matter the cause.”

In his reply brief, appellant conceded that the medical records were disclosed to Dr.
TL.
12
  We granted counsel’s motion to attach this article to the record in order to assess
appellant’s ineffective assistance of counsel claim.



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TILLMAN—ARMY 20160449

moderate cases, “range from mild agitation or hypervigilance, as well as slightly
pressured speech” and in, severe cases, agitated delirium. Id. at 1113. The
condition can arise quickly, often within minutes of a change in medication or an
overdose. Id. at 1114. In a majority of cases, symptoms appear within six hours
after an initial use of the medication, an overdose, or a change in the medication.
Id.

       In support of his ineffective assistance of counsel claim, appellant submitted
an affidavit from Lieutenant Colonel (LTC) DJ, a forensic psychiatrist stationed at
Walter Reed National Military Medical Center, in which he discusses serotonin
syndrome generally and in relation to this case. 13 Among other documents, LTC DJ
reviewed SPC GE’s medical records, toxicology records, and trial testimony.

       Lieutenant Colonel DJ notes that SPC GE was prescribed sertraline (Zoloft),
an antidepressant known as “a specific serotonin reuptake inhibitor (SSRI).” He
asserts that individuals taking SSRIs can, rarely, develop a life-threatening condition
known as serotonin syndrome. He states “[t]his condition can occur from normal
doses such as 100mg per day, or during an overdose on an SSRI (such as during a
suicide attempt), or when an SSRI is combined with another medication or substance
that also elevates serotonin levels.” Lieutenant Colonel DJ states that a person
taking Zoloft would experience elevated serotonin levels for four to five days after
they stopped taking the medication. In the case of an overdose of an SSRI, the
condition can occur quickly, within minutes. The mental status changes due to
serotonin syndrome include “anxiety, agitated delirium, restlessness, and
disorientation.” Lieutenant Colonel DJ states “delirium refers to a state of waxing
and waning consciousness which may include patient responses to imagined or
perceived threats or a complete misinterpretation of environmental stimuli.”
Lieutenant Colonel DJ opines that “[i]t is possible for delirium to be confused with
alcohol intoxication” as “[i]n both states, individuals may speak incoherently or
nonsensically, and out of character,” and “be physically discoordinated.”

       Lieutenant Colonel DJ opines that SPC GE’s medical condition could not have
been caused by alcohol alone. For example, “her blood alcohol level of 193 mg/dl
and the experts’ back extrapolation to roughly 200-210 mg/dl is not typically
consistent with someone who would require intubation at the hospital.” He states
that SPC GE “presented with an altered mental status in her cell phone video which
was consistent with someone experiencing an adverse reaction to serotonin and
alcohol.”

      Additional facts in resolving the appellant’s IAC claim are included in the
following discussion.


13
  LTC DJ took no part in appellant’s trial. Appellant submitted this affidavit after
the government filed its brief to this court.


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TILLMAN—ARMY 20160449

                             LAW AND DISCUSSION

       We review claims that an appellant did not receive effective assistance of
counsel de novo. United States v. Akbar, 74 M.J. 364, 379 (C.A.A.F. 2015); United
States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012). “In order to prevail on a claim
of ineffective assistance of counsel, an appellant must demonstrate both (1) that his
counsel’s performance was deficient, and (2) that this deficiency resulted in
prejudice.” United States v. Green, 68 M.J. 360, 361-62 (C.A.A.F. 2010) (citing
Strickland v. Washington, 466 U.S. 668, 687, (1984)).

       Under the first Strickland prong, appellant must show “counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant
by the Sixth Amendment.” 466 U.S. at 687. “An appellant must establish a factual
foundation for a claim of ineffectiveness; second-guessing, sweeping
generalizations, and hindsight will not suffice.” United States v. Davis, 60 M.J. 469,
473 (C.A.A.F. 2005) (citing United States v. Key, 57 M.J. 246, 249 (C.A.A.F. 2002);
United States v. Alves, 53 M.J. 286, 289 (C.A.A.F. 2000); United States v. Gray, 51
M.J. 1, 19 (C.A.A.F. 1999)). In assessing counsel’s performance, “we do not
measure deficiency based on the success of a trial defense counsel’s strategy, but
instead examine whether counsel made an objectively reasonable choice in strategy
from the available alternatives.” Akbar, 74 M.J. at 379 (citing United States v.
Dewrell, 55 M.J. 131, 136 (C.A.A.F. 2001)) (internal quotation marks omitted). In
determining this issue, courts “must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689. “Strategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually unchallengeable; and
strategic choices made after less than complete investigation are reasonable
precisely to the extent that reasonable professional judgments support the limitations
on investigation.” Id. at 690-91.

       Appellant claims his counsel were deficient in a number of ways throughout
findings. To summarize, appellant believes counsel failed in various ways to:
introduce SPC GE’s behavioral health issues or medical records from the hospital to
show an attempted suicide “was a distinct and real possibility;” conduct a full cross-
examination of SPC GE concerning her prior alcohol experience or cross-examine
the government’s expert in this regard; effectively use SPC GE’s text messages that
demonstrated her tolerance to alcohol use; and seek the right expert or make more of
an effort to explore strategies surrounding serotonin syndrome.

       Defense counsel’s strategy appears to have been reasonable when viewed in
light of the facts available to them at trial and limitations imposed by the military
judge’s Mil. R. Evid. 412 and Mil. R. Evid. 513 rulings. Despite appellant’s claims,
defense counsel, in our view, were able to credibly demonstrate key aspects of their




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TILLMAN—ARMY 20160449

theory that it was possible SPC GE blacked out, rather than passed out, at the time of
the assault, an argument supported by the testimony of the expert toxicologists.

       Appellant’s real focus, it appears, is whether counsel did enough to
investigate serotonin syndrome and the possible ways it could have furthered the
defense strategy or otherwise provided an alternate explanation than that proffered
by the government (alcohol intoxication) for SPC GE’s apparent incapacity when
found in the room and when later taken to the hospital. That is, defense counsel did
not do enough to find evidence to challenge the government’s claim that SPC GE’s
condition after the incident and at the hospital was proof that she was so impaired by
alcohol at the time of the assault that she was unable to consent.

        In this respect, trial defense counsel relied upon their toxicology expert in
reviewing the medical records without, apparently, independently researching
serotonin syndrome, its causes, or outward manifestations or consulting with a
physician or a mental health professional. However, we need not decide whether
this rendered the defense counsels’ pretrial investigation lacking or performance at
trial deficient.

                                 B. Lack of Prejudice

       “When reviewing ineffectiveness claims, ‘a court need not determine whether
counsel’s performance was deficient before examining the prejudice suffered by the
defendant.’ Rather, ‘[i]f it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice . . . that course should be followed.” United
States v. Datavs, 71 M.J. 420, 424-25 (C.A.A.F. 2012) (quoting Strickland, 466 U.S.
at 697). To establish prejudice, an appellant must demonstrate “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694. That requires a
“substantial,” not just “conceivable,” likelihood of a different result. Harrington v.
Richter, 562 U.S. 86, 112 (2011). That is, “absent the errors, a factfinder would
have had a reasonable doubt respecting guilt.” Strickland, 466 U.S. at 695.

       For purposes of assessing prejudice, we accept LTC DJ’s affidavit concerning
serotonin syndrome at face value. Notwithstanding this affidavit, we are not
convinced defense counsel has demonstrated the probability that the outcome at trial
would have been different had counsel pursued a theory involving serotonin
syndrome. Appellant’s arguments for prejudice require several layers of
speculation. United States v. Clemente, 51 M.J. 547, 551 (Army Ct. Crim. App.
1999) (an appellant has the responsibility to bring to an appellate court's attention
facts rather than mere speculation as relief cannot be granted, under Strickland,
based on mere speculation).




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TILLMAN—ARMY 20160449

       First, appellant asserts that serotonin syndrome would have provided an
avenue to argue that SPC GE consented to sexual relations and then overdosed on
serotonin in an attempt to commit suicide out of guilt since she had a fiancé. This
claim is based purely on conjecture that SPC GE tried to commit suicide after
consensual sex. This assumes that SPC GE actually took Zoloft following the
assault, a fact not supported by any evidence adduced at trial and seemingly
contradicted by other evidence. SPC GE testified she had not taken Zoloft that day.
During the Mil. R. Evid. 513 motion hearing, she testified she had last taken the
drug five days prior to the assault. Even statements by appellant indicated SPC GE
showed up at the room intoxicated and eventually passed out.

        Second, appellant asserts serotonin syndrome could have explained SPC GE’s
rapid deterioration after the assault, which would have been wholly consistent with
the defense theory that SPC GE was merely blacked out, and capable of consenting,
at the time of the assault. Lieutenant Colonel DJ states that serotonin syndrome can
manifest itself even up to five days after discontinuing the medication and that
alcohol can increase the risk of serotonin syndrome. Defense counsel, in our
opinion, adequately obtained from its toxicology expert that SPC GE could have
been experiencing a blackout at the time of the assault, and thus could have simply
not remembered consenting. Thus, it is not reasonably probable that this theory
would have added to the blackout possibility already advanced by defense counsel.

       Third, appellant posits that serotonin syndrome could have resulted in SPC
GE’s rapid decline during the encounter and, consequently, she may have
misinterpreted events and “environmental stimuli” at the time. This too we find
speculative. Lieutenant Colonel DJ’s affidavit and defense appellate exhibits show
serotonin syndrome’s manifestations can include “anxiety, agitated delirium,
restlessness, and disorientation.” Given the description of serotonin syndrome and
its manifestation, it is just as possible that serotonin syndrome, if present, could
have also have rendered SPC GE completely incapable of consent at the time of the
encounter.

       Setting aside the possibility of SPC GE being affected by serotonin syndrome,
there was overwhelming evidence she was intoxicated by alcohol at the time of the
assault and incapable of consent. Appellant was aware of her state of impairment.
Appellant provided a statement to CID that SPC GE arrived at the room drunk and then
continued to drink. According to appellant, SPC GE became so intoxicated that SPC
Hamilton and appellant left her alone in the room to sleep. This evidence of
impairment, appellant’s knowledge of SPC GE’s impaired state, and the discovery of
SPC GE’s DNA on appellant’s penis presented a compelling case of appellant’s guilt.
With the state of this evidence and the speculative nature of appellant’s claims
concerning serotonin syndrome, we find appellant has not established a reasonable
probability that, but for counsel’s alleged unprofessional errors, the result of the
proceeding would have been different. Appellant has failed to meet his burden to show



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TILLMAN—ARMY 20160449

that the trial defense counsel’s errors, if any, were “so serious as to deprive the
[appellant] of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687.

                                    CONCLUSION

      Upon consideration of the entire record, the findings of guilty and sentence
are AFFIRMED.

      Senior Judge MULLIGAN and Judge SCHASBERGER concur.


                                         FOR
                                         FOR THE
                                             THE COURT:
                                                 COURT:



                                         JOHN P. TAITT
                                         JOHN   P. TAITT
                                         Chief Deputy Clerk of Court




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