              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                  Before
                 J.A. FISCHER, D.C. KING, B.T. PALMER
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                     MICHAEL S. BRIDENSTINE
              LANCE CORPORAL (E-3), U.S. MARINE CORPS

                           NMCCA 201500041
                        GENERAL COURT-MARTIAL

Sentence Adjudged: 10 October 2014.
Military Judge: Col D.J. Daughtery, USMC.
Convening Authority: Commanding General, 1st Marine
Aircraft Wing, Okinawa, Japan.
Staff Judge Advocate's Recommendation: Maj J.M. Hackel,
USMC.
For Appellant: Maj John Stephens, USMC.
For Appellee: LCDR Catheryne E. Pully, JAGC, USN; LT James
M. Belforti, JAGC, USN.

                            29 October 2015

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                     OPINION OF THE COURT
     ---------------------------------------------------

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

PALMER, Judge:

     A panel of members with enlisted representation sitting as
a general court-martial acquitted the appellant of committing a
sexual act upon another person in violation of Article 120,
Uniform Code of Military Justice, 10 U.S.C. § 920, but found the
appellant guilty of the lesser included offense of assault
consummated by a battery, in violation of Article 128, UCMJ, 10
U.S.C. § 928. The members sentenced the appellant to six
months’ confinement, reduction to pay grade E-1, forfeiture of
$765.00 pay per month for 6 months, and a bad-conduct discharge.
The convening authority approved the sentence as adjudged.

     The appellant now asserts   the evidence is legally and
factually insufficient. After    carefully considering the record
of trial and the pleadings, we   find the appellant’s conviction
to be factually insufficient.    Art. 66(c), UCMJ.

                        Factual Background

     On the evening of Friday, 14 December 2013, the alleged
victim, Seaman Recruit (SR) CW, assigned to Naval Base Guam, was
socializing in town with her friend, Corporal (Cpl) DR. During
the course of the evening, SR CW drank a shot of whiskey at
their hotel before walking with Cpl DR to three bars. At the
first and second bars SR CW drank a total of two cocktails, a
shot of whiskey, and a beer. 1 At approximately 2200, they went
to the third bar at where SR CW drank a mixed drink and two more
shots and testified that she started feeling really drunk, that
she spilled a drink, that she “felt like” she was slurring her
words, and that she needed to lean on the bar for support. 2 She
has no further memories of the third bar, other than stating she
“walked – somehow ended up on the other side of town,” and
passed out on a low wall. 3

     Although several witnesses testified SR CW drank heavily,
no one says she was impaired to the level she describes. In
fact, Cpl DR, although intoxicated himself, testified that
throughout the evening SR CW was not slurring her words or
stumbling, could hold a conversation, and was walking around of
her own free will. 4 Captain (Capt) BP was at the last bar and
recalls SR CW drank two or three mixed drinks, but that SR CW
was not loud or slurring her words. 5 Another officer, Capt CM,
also saw SR CW consume these drinks at the third bar over the
span of an hour, but when he left the bar around midnight, SR CW
did not display any “warning signs” such as slurred speech or

1
    Record at 283-84.
2
    Id. at 285.
3
    Id.
4
    Id. at 238.
5
    Id. at 253.


                                  2
spilled drinks, and that he did not “have any concerns at all
about [her] and her ability to understand what’s going on, talk
to people, [and] get home if she needed to.” 6 No evidence was
presented as to when SR CW left the bar or how she traveled.
There was no evidence the appellant was at any of these bars or
that he had witnessed SR CW consume alcohol.

     SR CW testified she had fragmentary memories of the rest of
the night. She next remembered waking up on a low wall, sitting
up, and then being approached by two people. It is unclear
whether the people actually saw her lying on the wall before she
sat up. Although the Government infers the appellant was one of
the two persons, 7 SR CW did not know either and did not recall if
they spoke to her. 8

     SR CW’s next memory is “being sat on a bed” in a dark room.
She heard talking but did not know how many others were present.
She asked about Cpl DR’s whereabouts, said she could not find
him, and stated she wanted to go. 9

     SR CW next remembers someone pushing her, in a “not rough”
manner to lay her down and “running his hands” on her. 10 Then,
after another passage of time, she remembers a light was on and
that she was on her hands and knees straddling an 18-24 inch gap
between two beds. 11 A white male was in front of her, holding
her by the back of her head and “making [her] give him oral
[sex],” while another man, of apparent Asian descent, was behind
her penetrating her anally. 12 Although SR CW recalls thinking
the following day, that “what happened that night . . . wasn’t
something that [she] had consented to,” 13 SR CW did not testify
that she manifested any objection, either verbally or otherwise,
to the activity. She also acknowledged on cross-examination
that no one held her down, that she did not remember anybody

6
     Id. at 246-47.
7
     Id. at 419.
8
     Id. at 285.
9
     Id.
10
     Id. at 286.
11
     Id. at 286, 296, 299.
12
     Id. at 286-87.
13
     Id. at 288.


                                3
keeping her in the room, and did not remember anything she might
have said to either man prior to and after the sexual activity
began. 14

     SR CW next remembers waking up the following morning in one
of the beds. A man (Sergeant (Sgt) BB) who she did not
recognize was sitting on the other bed. SR CW testified that
Sgt BB soon got up and found vomit on his bed, which she assumed
came from her. She telephoned Cpl DR to come get her, and then
watched a movie with Sgt BB as she “tried to figure out what
happened the night before.” 15 When the movie ended, she left the
room and waited in the lobby for Cpl DR. Upon his arrival, Cpl
DR, who believed SR CW had “ditched” him the night before,
sarcastically asked a question to the effect of whether she
enjoyed getting raped last night. 16 A short time later, after
Cpl DR was “prodding at her to get some information,” SR CW
stated she thought she had been raped. 17 The following Tuesday
she made a restricted sexual assault report, ultimately changing
it to an unrestricted report. 18

     Sgt BB, a member of the appellant’s unit, was billeted in
the above-described hotel as part of a military exercise. His
assigned roommate was Cpl MA, who Sgt BB describes as Asian.
Sgt BB knows the appellant “from passing” or via a “professional
relationship, and similarly has a “professional relationship”
with Cpl MA. 19 On the evening of 14 December 2013, Sgt BB stayed
in his room watching television and talking to his wife on the
phone. He consumed no alcohol and was sober. He had a prior
agreement with Cpl MA, that if Cpl MA brought a girl back, he
would leave and let them use the room. 20 Between 0130 and 0200
on 15 December 2013, Sgt BB was awakened when Cpl MA, the
appellant, and SR CW, who Sgt BB had never met, arrived at his
hotel room. Sgt BB took about approximately 15 minutes to dress


14
     Id. at 299, 300.
15
     Id. at 288.
16
   Id. at 235, 289. Note: When Cpl DR asked this question he had no
knowledge of SR CW’s early morning interaction with the appellant.
17
     Id. at 235.
18
     Id. at 289-90.
19
     Id. at 257-58.
20
     Id. at 266.


                                     4
and prepare to leave. 21 Sgt BB testified the lights were on and
they were “talking,” “boisterous,” “happy, having a good time,”
and “laughing together.” 22 He believed they had all been
drinking, but that no one, including SR CW, was slurring their
words. He stated SR CW had her arm around Cpl MA in an
affectionate manner and that Cpl MA was not holding her up. He
further stated he understood his responsibility as a
noncommissioned officer and saw nothing in the situation that
set off “warning flags” or “alarm bells.” 23

     Sgt BB returned to the room at approximately 0500. He saw
Cpl MA and SR CW asleep in the same bed and that she had her
head on his chest in what he described as “cuddling.” 24 The
appellant was gone. While SR CW was still sleeping, Sgt BB
testified that he stripped his bed linen after finding an
unidentified “nickel-sized” stain on his sheets which he said
could have been vomit or salsa. 25 He saw no other evidence that
anyone had been sick in the room and he went to sleep in his
bed.

      Sgt BB testified Cpl MA left for work at 0600 and that
when he awoke at 1000 SR CW as still sleeping in Cpl MA’s bed.
He smoked a cigarette on the balcony and when he returned SR CW
was in the bathroom. When she came out, Sgt BB testified she
sat on Cpl MA’s bed, watched a movie that lasted 90 minutes to
two hours, ate a snack, and they engaged in light conversation.
He described her as pleasant and testified that she said goodbye
when she left. 26

     The remaining relevant facts were developed during the
ensuing investigation pursuant to SR CW’s report of sexual
assault. A medical examination conducted three days after the
alleged assault revealed SR CW had tenderness on the back of her
neck, some bruises on her forearms, redness on her right breast,

21
     Id. at 267-68.
22
     Id. at 262, 267.
23
     Id. at 269.
24
     Id. at 263, 270.
25
   Id. at 270. This testimony differs from SR CW’s, who said Sgt BB
discovered what she described as vomit in his bed after she woke up the
following morning.
26
     Id. at 264, 271-72.


                                      5
and very small lacerations on her genital area. Expert opinion
testimony stated these lacerations could have resulted from
consensual or nonconsensual sex. 27 Forensic DNA testing
confirmed the presence of the appellant’s semen on SR CW’s bra
and underwear. 28

     The appellant and Cpl MA were separately tried for sexually
assaulting SR CW. 29 At the appellant’s trial, the trial judge
sua sponte, without objection from either party, instructed on
the lesser included offense of assault consummated by a battery
and a mistake of fact defense thereto. 30 The members, using
exceptions and substitutions, found the appellant guilty of
assault consummated by a battery in that he wrongfully did
bodily harm to [SR CW] by inserting his penis into her mouth
with unlawful force or violence and without her permission or
consent.” 31

     The appellant now asserts legal and factual insufficiency
because the Government did not prove the alleged victim’s lack
of consent beyond a reasonable doubt and, alternatively, because
the appellant held and honest and reasonable mistake of fact as
to consent.

                                  Analysis

     Under Article 66(c), UCMJ, we conduct a de novo review of
factual sufficiency on all cases before us. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). 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. United States
v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). “Such a review

27
     Id. at 316-17.
28
     Id. at 348, 350-51.
29
   Appellant’s Brief of 15 Jun 2015 at 12. Although mooted by our present
action, we note neither the SJAR nor the CA’s action includes reference to
Cpl MA’s companion case and his resultant acquittal as required by the Manual
of the Judge Advocate General, Judge Advocate General Instruction 5800.7F §
0151a(5) (26 June 2012).
30
     Id. at 395, 407-09.
31
   In reaching this finding the members excepted the words, “commit a sexual
act upon [SR CW] to wit: Inserting his penis into her mouth when [SR CW] was
incapable of consenting to the sexual act due to impairment by drug,
intoxicant, or similar substance.”   Id. at 436, 437, and AE XVIII.
                                      6
involves a fresh, impartial look at the evidence, giving no
deference to the decision of the trial court on factual
sufficiency beyond the admonition in Article 66(c), UCMJ, to
take into account the fact that the trial court saw and heard
the witnesses.” Washington, 57 M.J. at 399.

                         Factual Sufficiency

     The elements of assault consummated by a battery are:
(1) that the accused did bodily harm to a certain person; and
(2) that the bodily harm was done with unlawful force or
violence. MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), Part IV,
¶ 54b(2). The “bodily harm . . . must be done . . . without the
lawful consent of the person affected [and is defined as] any
offensive touching of another, however slight.” Id. at
¶ 54c(1)(a). As a general matter, consent can convert what
might otherwise be offensive touching into non-offensive
touching, and a reasonable and honest mistake of fact as to
consent constitutes an affirmative defense. United States v.
Johnson, 54 M.J. 67, 69 (C.A.A.F. 2000) (citation omitted).

     It is not the appellant’s burden to prove that SR CW
consented to the touching; “rather . . . the burden [is] on the
Government to prove each and every element of the assault
consummated by a battery, one of which is lack of consent.” Id.
at 69, n.3. Accordingly, even accounting for not having seen
and heard the witnesses, for the reason’s set forth below, we
are not convinced beyond a reasonable doubt that the Government
proved a lack of consent.

     Although there was evidence SR CW was intoxicated, we find
no compelling evidence that she was so drunk as to prevent her
from expressing her lack of consent to the touching (here, the
sexual activity with the appellant). Every Government witness
who saw her drinking that evening (Cpl DR, Capt BP, and Capt CM)
testified that SR CW was neither slurring her words nor
stumbling, that she was engaging in conversation, and that they
had no concerns about her ability to understand what was going
on around her. Upon leaving the last bar it appears she walked,
on her own, some significant distance “to the other side of
town.” Sgt BB, another Government witness, testified that SR CW
was happy, talking, laughing, not slurring her words, and that
she had her arm around Cpl MA in an affectionate manner. Thus,
the evidence indicates that her presence in the hotel room with
the appellant and Cpl MA was both knowing and voluntary. SR
CW’s testimony also indicates she was sufficiently alert to be
fully aware of her exact location in the room and that during

                                   7
the sexual activity she was supporting her own weight while
balancing in a difficult body position. Further, SR CW states
that during the sexual encounter she was awake, the lights were
on, and although she testified the appellant was “making” 32 her
perform oral sex, no evidence was presented that she
demonstrated to the appellant or Cpl MA, in any manner, at any
time, that she did not consent to any part of the encounter.
Moreover, no evidence was presented to indicate SR CW was,
through any means, prevented from manifesting her lack of
consent or objection to the situation. To the contrary, we note
SR CW spent the remainder of the night with Cpl MA, one of her
alleged attackers, sleeping with her head on his chest.

     Recognizing the high burden the Government carries in a
criminal prosecution, and after considering all the evidence and
pleadings in this case, we find the Government did not
demonstrate the complainant’s lack of consent to the touching
beyond a reasonable doubt and therefore failed to prove the
offense’s second element beyond a reasonable doubt.

                                Conclusion

     The findings and sentence are set aside.           The charge and
specification are dismissed with prejudice. 33

       Senior Judge FISCHER and Judge KING concur.

                                          For the Court



                                          R. H. TROIDL
                                          Clerk of Court




32
     Id. at 286.
33
   Our granted relief moots the appellant’s argument that he possessed an
honest and reasonable mistake of fact as to CR SW’s consent and that his
conviction was not legally sufficient.
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