UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          MULLIGAN, HERRING, and BURTON
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                       v.
                        Specialist SAMUEL E. NEALY III
                         United States Army, Appellant

                                   ARMY 20140029

                              Headquarters, I Corps
                          David L. Conn, Military Judge
            Colonel William R. Martin, Staff Judge Advocate (pretrial)
Lieutenant Colonel Karen W. Riddle, Acting Staff Judge Advocate (recommendation)
          Colonel Randall J. Bagwell, Staff Judge Advocate (addendum)


For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Captain Heather L.
Tregle, JA; Captain Scott A. Martin, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major Steven J. Collins, JA; Captain
Linda Chavez, JA (on brief).

                                      30 June 2016

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                               SUMMARY DISPOSITION
                               ---------------------------------
Per Curiam:

       A panel with enlisted representation, sitting as a general court-martial,
convicted appellant, contrary to his pleas of false official statement, aggravated
sexual assault, and forcible sodomy in violation of Articles 107, 120, and 125
Uniform Code of Military Justice, 10 U.S.C. §§ 907, 920, 925 (2006 & Supp. IV
2010; 2012) [hereinafter UCMJ]. After findings, the military judge found the
aggravated sexual assault conviction to be “multiplicious for findings” and merged it
with the forcible sodomy conviction. The military judge then dismissed the
aggravated sexual assault specification. The panel sentenced appellant to a bad-
conduct discharge, ninety days confinement, and reduction to E-1. The convening
authority approved the only so much of the sentence that provided for a bad-conduct
discharge, confinement for sixty days, and reduction to the grade of E-1. 1

1
 According to the staff judge advocate’s post-trial addendum, the convening
authority reduced appellant’s sentence by thirty days to alleviate any prejudice that
may have been caused by post-trial delay.
NEALY—ARMY 20140029

       Appellant’s case is before this court for review under Article 66, UCMJ.
Appellant counsel raises three errors, one of which merit discussion and relief. 2
After review of the entire record, we are not convinced beyond a reasonable doubt as
to two elements of appellant’s conviction for false official statement. We will
provide relief in our decretal paragraph.

       In accordance with Article 66(c), UCMJ, we review issues of legal and factual
sufficiency de novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002). The test for legal sufficiency is “whether, considering the evidence in the
light most favorable to the prosecution, a reasonable factfinder could have found all
the essential elements beyond a reasonable doubt.” United States v. Turner, 25 M.J.
324 (C.M.A. 1987); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979); United
States v. Humphreys, 57 M.J. 83, 94 (C.A.A.F. 2002). In resolving questions of
legal sufficiency, we are “bound to draw every reasonable inference from the
evidence of record in favor of the prosecution.” United States v. Barner, 56 M.J.
131, 134 (C.A.A.F. 2001). The test for factual sufficiency is “whether, after
weighing the evidence in the record of trial and making allowances for not having
personally observed the witnesses, [we] are [ourselves] convinced of the accused’s
guilt beyond a reasonable doubt.” Turner, 25 M.J. at 325.

      The Specification of Charge III alleged appellant:

           on or about 18 March 2013, with intent to deceive make to
           Special Agent J.M., US. Army, an official statement, to wit:
           “I only performed oral sex on her,” or words to that effect,
           which statement was totally false and was then known by the
           [appellant] to be so false.

The evidence introduced at trial to support this allegation was the testimony of U.S.
Army Criminal Investigation Command (CID) Special Agent (SA) JM and the
videotaped interview of appellant where appellant stated, “I only performed oral sex
on her,” the testimony of another Special Agent, SA AV, who interviewed appellant
on 27 March and a written statement from the 27 March 2013 interview. The
following is reflected in the question and answer portion of appellant’s written
statement from 27 March 2013:

          Q: You lied in your previous statement. Why?

          A: Lies of omission are still lies. I did not remember the
          details I added to this statement that were not present in the
          last.

2
 We have also reviewed the matters personally raised by appellant pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and they are without merit.

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NEALY—ARMY 20140029


On cross-examination SA AV was asked,

          Q: I’m just going to start with that statement about lies of
          omissions. [Appellant] said, “I did not remember the details I
          added to this statement that were not present in the last,
          correct?

          A: That’s what on the paper, yes, sir; right.

          Q: So if he did remember something that’s not a lie is it?

          A: If someone doesn’t remember something?

          Q: That’s not a lie?

          A: Correct

       Appellant’s second statement to SA AV provided more details of the incident
in question, but did not change the crux of the initial statement “I only performed
oral sex on her.” The government presented no evident to show that appellant knew
his statement was false at the time of signing it and that the statement was made
with the intent to deceive. The fact that one does not remember something does not
transform the lack of recollection to a false official statement.

                                  CONCLUSION

      Having completed our review and in consideration of the entire record, the
Specification of Charge III and Charge III are dismissed.

      The remaining findings of guilty are AFFIRMED. We are able to reassess the
sentence on the basis of the error noted and do so after conducting a thorough
analysis of the totality of circumstances presented by appellant’s case and in
accordance with the principles articulated by our superior court in United States v.
Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and United States v. Sales, 22 M.J.
305 (C.M.A. 1986). We are confident that based on the entire record and appellant’s
course of conduct, the panel would have imposed a sentence of at least that which
was adjudged, and accordingly we AFFIRM the sentence.




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NEALY—ARMY 20140029


      We find this reassessed sentence is not only purged of any error but is also
appropriate. All rights, privileges, and property, of which appellant has been
deprived by virtue of that portion of the findings set aside by our decision, are
ordered restored.


                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




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




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