UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                             Before
                                   PEDE, COOK, and HAIGHT
                                    Appellate Military Judges

                               UNITED STATES, Appellee
                                            v.
                             Captain GREGORY A. MARTIN
                              United States Army, Appellant

                                        ARMY 20110345

                          Headquarters, 82d Airborne Division
                           Patrick J. Parrish, Military Judge
                 Colonel Lorianne M. Campanella, Staff Judge Advocate


For Appellant: William E. Cassara, Esquire (argued); Captain John L. Schriver, JA;
William E. Cassara, Esquire (on brief).

For Appellee: Captain Benjamin Hogan, JA (argued); Colonel John P. Carrell, JA;
Lieutenant Colonel James L. Varley, JA; Major Robert A. Rodrigues, JA; Captain T.
Campbell Warner, JA (on brief).


                                        28 February 2014
                                  ------------------------------------
                                    MEMORANDUM OPINION
                                  ------------------------------------

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

HAIGHT, Judge:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of attempted rape, one specification of
attempted aggravated sexual contact, one specification of rape, and one specification
of aggravated sexual contact, 1 in violation of Articles 80 and 120, Uniform Code of
Military Justice, 10 U.S.C. §§ 880 and 920 (2006 & Supp. III 2010) [hereinafter


1
 The military judge also found appellant guilty of an additional specificati on of
aggravated sexual contact and one specification of wrongful sexual contact.
However, these specifications were dismissed after findings but before sentencing as
an unreasonable multiplication of charges.
MARTIN—ARMY 20110345

UCMJ]. The convening authority approved the adjudged sent ence of a dismissal and
confinement for six years.

      The case is now before this court for review under Article 66, UCMJ.
Appellant raises three assignments of error to this court. Two assignments of error
warrant discussion, one of which merits relief.

                                   BACKGROUND

       On the evening of 29 October 2010, appellant returned to Fayetteville, North
Carolina from his post-deployment leave in Texas. Appellant flew from Houston to
Charlotte, and then to Raleigh, where he retrieved his personal vehicle and drove to
Fayetteville. When he reached Fayetteville, he purchased a number of items for a
Halloween party that evening, which was hosted by two other captains in his
battalion. Appellant drove to the gathering, and after donning his costume in his
vehicle, he entered the apartment and joined the party. Among those in attendance
at the party were Second Lieutenant (2LT) MF, First Lieutenant (1LT) MR, and
Captain (CPT) KV.

      Appellant had worked with and was friends with 1LT MR and CPT KV but
had never met 2LT MF until that evening. Appellant immediately began consuming
beverages containing hard alcohol and interacting with other guests at the party,
including 2LT MF. Additionally, 2LT MF, 1LT MR, and CPT KV all consumed
various alcoholic beverages, socialized, and played charades. After a few hours—at
approximately 2300—the four of them got a taxicab to take them to another party
hosted by a friend of 2LT MF. After failing to find the next party, 2LT MF
informed the others that she did not feel well and wanted to return to 1LT MR’s
apartment, where she planned to retire for the evening.

       The taxicab proceeded to 1LT MR’s apartment complex. Upon arrival, all
four occupants as well as the cab driver went into 1LT MR’s apartment. Appellant
and the cab driver used the bathrooms. First Lieutenant MR made up the bed in the
master bedroom for 2LT MF, and 2LT MF fell asleep there shortly after the others
returned to the taxicab to continue the night’s festivities.

        Appellant, CPT KV, and 1LT MR proceeded in the taxicab to a bar in
downtown Fayetteville, during which time appellant was noticeably intoxicated.
When they arrived at the bar, CPT KV and 1LT MR realized appellant had forgotten
his wallet and identification, at which point one of them gave the cab driver money
to take appellant back to 1LT MR’s apartment, where she had left a blanket and
pillow for him to sleep on the couch. By this point, approximately midnight,
appellant was highly intoxicated. He began vomiting out the passenger window of
the taxicab as soon as it departed the bar, and shortly thereafter, either passed out or
fell asleep for the remainder of the trip back to 1LT MR’s apartment complex. The



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MARTIN—ARMY 20110345

cab driver testified that he had seen a lot of intoxicated people, and appellant was
“one of the worst ones I have ever seen.”

       Upon returning to the apartment complex at approximately 0015, appellant
and the driver were waved through the gate by a security guard whom 1LT MR had
already telephonically notified that appellant would be returning via taxicab. The
cab driver roused appellant when he parked outside 1LT MR’s unit, which was near
the guard’s station. Appellant exited the vehicle and began knocking on the door to
the apartment. Initially there was no response, and the cab driver observed that
appellant was bracing himself against the door while he awaited entry. At some
point, appellant was making such a commotion that the gate guard left her sta tion
and approached 1LT MR’s apartment, where she witnessed appellant staggering
around, slurring his speech, and pounding on the door to the unit. Both the cab
driver and the gate guard observed appellant lose his balance and tumble face-first
into a nearby bush. The cab driver testified that appellant did not even attempt to
catch himself as he fell, but when he got back to his feet it appeared that the fall
woke him up to some degree.

       Eventually, the gate guard returned to her station after the cab d river told her
that he would remain with appellant a bit longer . Shortly thereafter, at
approximately 0045, 2LT MF was awakened by appellant’s repeated banging on the
door. She got out of 1LT MR’s bed and proceeded downstairs where she opened the
door and discovered appellant leaning on the doorframe. Appellant entered the
apartment and repeatedly thanked 2LT MF for opening the door. She noticed that
appellant sounded and appeared drunk as he stumbled quickly up the stairs and into
the bathroom adjacent to the master bedroom. At this point, 2LT MF returned to
bed, although she was somewhat perplexed by appellant’s arrival. She had not been
expecting appellant to return to the apartment by h imself and hoped he would just
use the bathroom and go to sleep on a couch in another room. This did not happen.

        Appellant was in the bathroom for several minutes, during which time 2LT
MF got under the covers of 1LT MR’s bed and started to doze off again. She
testified that she was lying on her left side with her back towards the bathroom when
appellant unexpectedly “flopp[ed]” onto the bed. Second Lieutenant MF explained
that appellant’s forehead collided with hers, waking her from her sleep and “froze”
her with fear as she did not think he was going to “climb i nto bed.” Next, appellant
got up, turned off the lights, and immediately returned to the bed.

      Second Lieutenant MF testified that as appellant lay there, she tried to pretend
she was asleep so he would leave her alone. But, after “maybe a minute,” appellant
leaned towards her and attempted to kiss her. She told appellant “no,” and he
apologized and moved away. After another minute, he attempted to kiss her again,
at which point she told him “no” again, and he again apologized. After another brief
pause, appellant began engaging in a series of more aggressive and unwelcomed
advances, resulting in multiple sexually abusive acts.


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MARTIN—ARMY 20110345

        Appellant rolled over and trapped 2LT MF under his body weight. 2
Additionally, throughout this encounter, appellant used his arms and legs to restrain
2LT MF. Overcoming her attempts to push him away, appellant put his hand
underneath 2LT MF’s blouse and bra and forcefully grabbed her chest and kissed her
now exposed breasts. Despite the continued resistance and pleas for h im to stop,
appellant forced his hand underneath 2LT MF’s spandex shorts and digitally
penetrated her vagina. She cried and begged for him to stop, but appellant did not
acknowledge her protests and continued. Second Lieutenant MF was unable to get
appellant to remove his hand as he was too strong. Appellant then removed his
hand, proceeded to masturbate, and then went back to digitally penetrating 2LT
MF’s vagina. This pattern of digital rape, momentarily rolling off his victim to
masturbate his erect penis, and then returning for more digital penetration repeated
itself several times.

       Between the third and final instances of completed digital rape, appellant
unsuccessfully tried to get 2LT MF to engage in other sexual behavior. These
failures form the bases for the two attempt specifications. Specifically, appellant
wanted 2LT MF to grab his exposed penis and invited her to “get on top,”
presumably so they could engage in sexual intercourse. At this point in her
testimony, 2LT MF testified that she believed appellant was going to “rape” her.

      During the fourth and final digital rape, 2LT MF went into “survival mode”
and decided she would flee, despite the risk of inciting appellant’s anger, at the next
opportunity. So, when appellant next rolled off her and started masturbating again,
she escaped. Second Lieutenant MF got up from the bed, calmly walked out of the
room, and closed the door behind her. At this point, s he scrambled downstairs,
grabbing her wallet, keys, and coat.

       She left the apartment without putting her shoes on and immediately called
her platoon sergeant to report what had happened. 3 When her platoon sergeant did
not answer, 2LT MF got into her vehicle and called her company commander . By
this point, 2LT MF was “crying hysterically” and when she told her commander she
had been assaulted, he directed her to call 911.

       Second Lieutenant called 911 at approximately 0200 and spoke with a
dispatcher as she drove towards her own apartment on Fort Bragg. 4 The dispatcher
explained that she would send officers to the scene and asked 2LT MF to return to
the apartment complex. When police arrived, 2LT MF gave an account of what

2
  Appellant outweighed 2LT MF by approximately sixty-five pounds.
3
  Second Lieutenant MF had left her cell phone in her coat pocket.
4
  A recording of the 911 call, during which 2LT MF reported what had happened,
was admitted as Prosecution Exhibit 1.



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MARTIN—ARMY 20110345

happened, and identified the apartment unit in which the incident occurred. Second
Lieutenant MF then called her fiancé and left him a voice messag e.

       At trial, appellant testified that he could not recall various periods throughout
the evening after leaving the first party. He claimed that he could not recall the cab
ride to the bar, but that he had a “moment of clarity” from which he remembered
waiting outside 1LT MR’s apartment with the cab driver. He stated he could not
remember entering the apartment or any of the events that transpired until he was
awakened by the police’s arrival. He did have a “foggy memory of trying to kiss a
woman on like the shoulder and her very coyly saying, ‘No, no, no.’”

                              LAW AND DISCUSSION

       This court “may affirm only such findings of guilty . . . as it finds correct in
law and fact.” UCMJ art. 66(c). “We must conduct an independent review of both
the legal and factual sufficiency of the evidence. In doing so, our court reviews de
novo the legal and factual sufficiency of the case. ” United States v. Gilchrist, 61
M.J. 785, 793 (Army Ct. Crim. App. 2005). Our test for legal sufficiency “requires
[this court] to review the evidence in the light most favorable to the Government
[and] [i]f any rational trier of fact could have found the essential elements beyond a
reasonable doubt, the evidence is legal ly sufficient.” United States v. Brooks, 60
M.J. 495, 497 (C.A.A.F. 2005). The test for factual sufficiency is “whether, after
weighing the evidence of record and making allowances for not having personally
observed the witnesses, we are convinced of app ellant’s guilt beyond a reasonable
doubt.” Gilchrist, 61 M.J. at 793 (citing United States v. Turner, 25 M.J. 324, 325
(C.M.A. 1987)).

1. Completed Offenses of Rape and Aggravated Sexual Contact

      In his second assignment of error, appellant alleges:

             THE EVIDENCE IS LEGALLY AND FACTUALLY
             INSUFFICIENT TO SUPPORT THE FINDINGS OF
             GUILTY FOR RAPE IN SPECIFICATION 1 OF CHARGE
             II AND FOR AGGRAVATED SEXUAL CONTACT IN
             SPECIFICATION 2 OF CHARGE II.

      Appellant was found guilty of rape by “inserting his finger s into [2LT MF’s]
vagina, by using restraint applied to her leg and torso, sufficient that she could not
avoid or escape the sexual conduct.” Additionally, he was found guilty of
aggravated sexual contact for “placing his mouth an d hands on the breast of [2LT
MF] . . . by using restraint applied to her leg and torso, sufficient that she could not
avoid or escape the sexual conduct.”




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MARTIN—ARMY 20110345


                               Actus Reus and Mens Rea

         With respect to the offense of rape, the government was required to prove that
appellant (1) caused 2LT MF to engage in a sexual act; and (2) by force. See
Manual for Courts-Martial, United States (2008 ed.) [hereinafter MCM] pt. IV,
¶ 45.b(1)(a). The testimony of 2LT MF clearly established that appellant used force
against her during the multiple instances that he penetrated her vagina with his
fingers. Specifically, 2LT MF testified that appellant “pin[ ned] down my left knee
against the bed with his . . . right elbow. He . . . we nt through the top of my shorts
. . . right underneath my shorts and underwear and that’s when he penetrated me
with his fingers.” She further explained that she attempted to remove his hand from
her underwear, but “he wasn’t budging at all.”

       Regarding the offense of aggravated sexual contact, the government was
required to prove that appellant (1) engaged in a sexual contact with 2LT MF; and
(2) appellant did so by using force against her. See MCM, pt. IV, ¶ 45.b(5)(a).
Second Lieutenant MF’s testimony also proved that appellant used force to commit
the sexual contact of touching her breast with his hands and mouth. She testified
that appellant pulled her blouse and bra down, and “started . . . [to] forcefully kind
of grab my chest and was still trying to kis s . . . my neck . . . [and he] started kissing
my—like over my chest and over the nipple . . . .”

       We have no doubt appellant’s actions satisfied the requirements for each of
these specifications. However, because this particular rape offense entails a “sexual
act” that does not involve contact between the penis and the vulva, the gover nment
was also required to establish the specific mens rea applicable to the actus reus
described by MCM, pt. IV, ¶ 45.a(t)(1)(B). 5 Specifically, it had to prove that when
appellant inserted his finger into 2LT MF’s vagina, he possessed the specific intent
to “abuse, humiliate, harass, or degrade any person, or to arouse or gratify the sexual
desire of any person.” MCM, pt. IV, ¶ 45.a(t)(1)(B). The same proof requirements
applied to the aggravated sexual contact offense, where “sexual contact” is “the
intentional touching, either directly or through the clothing, of the . . . breast . . . of
another person . . . with an intent to abuse, humiliate, or degrade any person or to
arouse or gratify the sexual desire of any person.” MCM pt. IV, ¶ 45.a(t)(2).

                      Affirmative Defense: Voluntary Intoxication

      “An accused may . . . raise voluntary intoxication, or partial mental
responsibility to refute a specific intent mens rea element of an offense.” United

5
 When a “sexual act” consists of “contact between the penis and the vulva” there is
no specific intent requirement. See MCM, pt. IV, ¶ 45.a(t)(1)(A).



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MARTIN—ARMY 20110345

States v. Hearn, 66 M.J. 770, 776 (Army Ct. Crim. App. 2008) (internal citations
and quotation marks omitted) (citing United States v. Axelson, 65 M.J. 501, 513-14
(Army Ct. Crim. App. 2007)). See also Rule for Courts-Martial [hereinafter R.C.M.]
916(l)(2). To raise the defense, an accused must show more than just alcohol
consumption or intoxication. Rather, “there must be some evidence that the
intoxication was of a severity to have had the effect of rendering the appellant
incapable of forming the necessary intent, not just evidence of mere intoxication. ”
United States v. Peterson, 47 M.J. 231, 233-34 (C.A.A.F. 1997) (quotation marks
and citation omitted). If an accused is able to muster some evidence of the defense
of voluntary intoxication, the government may overcome th is affirmative defense by
proving beyond a reasonable doubt that it did not exist. R.C.M. 916(b)(1).

       As discussed above, the offenses of rape and aggravated sexual contact each
included a specific intent element. Here, there was ample evidence that appellant
not only ingested a significant amount of alcohol, but that his intoxication was to a
degree that it could have possibly affected his ability to form the specific intent
necessary to prove the charged crimes. Thus, the defense of voluntary intoxication
was in issue, placing the burden on the government to pro ve beyond a reasonable
doubt the defense did not exist. We find the evidence proved beyond a reasonable
doubt that appellant’s intoxication did not prevent him from forming the specific
intent required by MCM, pt. IV, ¶¶ 45.a(t)(1)(B), 45.t(2), and that he did, in fact,
form that very intent required for the completed offenses.

        Second Lieutenant MF’s testimony provided an abundance of evidence that
appellant’s actions were aimed specifically at gratifying his sexual desires. First of
all, the entire episode occurred at night and in a bed. Appellant turned off the lights
before making advances towards a goal which was clearly sexual in nature. He
attempted to kiss 2LT MF twice before he began “caressing [her] side.” This was
followed by appellant touching 2LT MF’s breasts, which she testified was
accompanied by him making “moaning sounds.” Further, while appellant’s fing ers
were inside her vagina, 2LT MF could feel “his penis hard against my leg.” After
that, he paused briefly to “caress[] his penis” and “masturbate” before he forcibly
penetrated her vagina with his fingers again. Next, appellant pulled his pants down
to his ankles and resumed masturbating his erect penis before he rolled over so that
2LT MF could “feel his penis against [her] leg.”

        Here, in rejecting appellant’s arguments that his voluntary intoxication
precluded his ability to form the requisite int ent for the charged offenses, the
military judge made special findings concluding that appellant “was capable of
comprehending the circumstances and formulating a response . . . and sufficiently
aware of his surroundings and what he was doing that he mastu rbated his erect
penis.” Further, the military judge specifically noted that “the court has considered
all of the evidence and has followed the same instructions it would have provided to
members on voluntary intoxication.” Cf. Hearn, 66 M.J. 770. (This court set aside
the specific intent offense of indecent acts with a child where evidence of substantial


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MARTIN—ARMY 20110345

alcohol consumption by accused was presented, but the military judge failed to
provide a voluntary intoxication instruction.). 6 For the completed offenses of rape
and aggravated sexual contact, we reach the same conclusions as the military judge,
and therefore hold that the evidence is legally and factually sufficient with respect to
these convictions.

2. Attempted Rape and Attempted Aggravated Sexual Contact

      In his first assignment of error, appellant alleges:

             THE EVIDENCE IS LEGALLY AND FACTUALLY
             INSUFFICIENT TO SUPPORT THE FINDING OF
             GUILTY FOR ATTEMPTED RAPE IN SPECIFICATION
             I OF CHARGE I AND FOR ATTEMPTED
             AGGRAVATED SEXUAL CONTACT IN
             SPECIFICATION 2 OF CHARGE I WHERE THE
             GOVERNMENT FAILED TO PROVE BEYOND A
             REASONABLE DOUBT THAT APPELLANT HAD THE
             SPECIFIC INTENT TO COMMIT THE OFFENSES.

       Appellant was found guilty of attempted rape by attempting to “cause [2LT
MF] to engage in a sexual act, to wit: inserting his penis into her vagina, by using
restraint applied to her leg and torso, sufficient that she could not avoid or escape
the sexual conduct.” Additionally, he was found guilty of attempted aggravated
sexual contact by attempting to “cause [2LT MF] to engage in sexual contact, to wit:
touching his penis with her hand, by using strength applied to her hand, sufficient
that she could not avoid or escape the sexual con duct.”

                               Actus Reus and Mens Rea

       The specifications of attempted rape and attempted aggravated sexual contact,
in violation of Article 80, UCMJ, required the government to prove:

             (1) that the accused did a certain overt act;



6
  In Hearn, this court did not hold that evidence connecting an accused’s
intoxication to his ability to form a specific intent to gratify his sexual desires was a
per se defense, but merely that “a properly instructed panel may have believed
appellant could not form the requisite inte nt because of the effects of his heavy
consumption of alcohol and inability to recollect events of the charged offense.” 66
M.J. at 777-78 (emphasis added).



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MARTIN—ARMY 20110345

             (2) that the act was done with the specific intent to commit
             a certain offense under the code [here rape and aggravated
             sexual contact];

             (3) that the act amounted to more than mere preparation;
             and,

             (4) that the act apparently tended to effect the commission
             of the intended offense [here rape and aggravated sexual
             contact].

MCM, pt. IV, ¶ 4.b. (emphasis added). With respect to the intended offenses, the
government must prove that, at the time of the overt acts, appellant intended every
element of each offense. United States v. Guzman, ARMY 20100020, 2013 WL
5410012, at *10 (Army Ct. Crim. App. 20 Sep. 2013) (mem. op.) pet. denied
    M.J.     (C.A.A.F. 29 Jan. 2014). Thus, for the offense of attempted rape, the
government was required to prove that appellant (1) intended to cause 2LT MF to
engage in a sexual act (vaginal intercourse); and, (2) intended to do so by using
force 7 (application of sufficient restraint) against 2LT MF. MCM, pt. IV,
¶ 45.b(1)(a). For the offense of attempted aggravated sexual contact , the
government was required to prove that appellant (1) intended to engage in sexual
contact (causing 2LT MF to touch appellant’s penis) with 2LT MF; and, (2) intended
to do so by using force (application of sufficient strength) against 2LT MF. MCM,
pt. IV, ¶ 45.b(5)(a).

       With respect to the attempted aggravated sexual contact, 2LT MF testified
appellant had pulled his pants down to his ankles . At one point, appellant “tried to
get [2LT MF] to grab his penis” by saying, “Here, grab this.” Appellant grabbed
2LT MF’s wrist and tried to “pull it over” but was unable to do so because she
yelled “No” and successfully “pulled [her] hand back .” At that time, appellant said,
“Okay, well then get on top,” to which she also responded “No.” As appellant was

7
  One definition of “force” is the compelled submission of another or the overcoming
or prevention of another’s resistance by “physical violence, strength, power, or
restraint applied to another person, sufficient that the other person could not avoid
or escape the sexual contact.” MCM, pt. IV, ¶ 45.a(t)(5)(C). Both rape and
aggravated sexual contact can be committed by various means, including force,
causing grievous bodily harm, threats of death or grievous bodily harm, and
rendering another person unconscious, among others. MCM, pt. IV, ¶¶ 45.a(a), (e) .
Here, based on the language of the attempt specifications and the relevant
definitions provided by the MCM, the government was clearly prosecuting under the
theory that appellant attempted to commit the offenses by force. MCM, pt. IV,
¶ 45.a(t)(5).



                                          9
MARTIN—ARMY 20110345

unable to “climb on top of” 2LT MF, he proceeded to digitally penetrate her vagina
yet again.

       Appellant’s efforts to pull 2LT MF’s hand towards his penis as well as his
efforts to persuade her to “get on top” along with his brief attempt to position his
body atop her and between her knees are overt acts amounting to more than mere
preparation to engage in a sexual contact and sexual act, respectively. Thus, the
actus reus of each attempt specification has been satisfied, and the only question
remaining is whether appellant possessed the required specific intent to commit
those acts by force. Surely, appellant wanted 2LT MF to touch his penis and wanted
to engage in sexual intercourse with her. Therefore, in conducting our legal and
factual sufficiency review, we are left to determine whether appellant specifically
intended to accomplish each of these acts via compelled submission.

       Here, we find appellant’s convictions for attempted rape and attempted
aggravated sexual contact are legally sufficient. Viewing the evidence in the light
most favorable to the government, a rational fact finder could have found appellant
guilty of these offenses. See Brooks, 60 M.J. at 497. However, under the specific
facts and circumstances of this case, we are not convinced beyond a reasonable
doubt that appellant possessed the specific intent to have sexual intercourse and
cause a sexual contact by force.

       In United States v. Polk, the Air Force Court of Military Review carefully
explored the proof requirements for attempted rape “by force and without consent”
of the victim. 48 C.M.R. 993, 997 (A.F.C.M.R. 1974). In that case, the accused had
removed his clothes, broken into a woman’s bedroom in the middle of the night,
climbed on top of her, placed his hand on her throat, and told her that he would not
leave until she “let him have her.” Id. at 996 (internal quotation marks omitted).
Only after the victim’s persistent pleas for Polk to leave, in spite of his repeated
demands that she “yield to his desires ,” did he finally climb off the victim and exit
her home without further assaulting her. Id. at 995. In setting aside Polk’s
conviction for attempted rape, the Air Force Court observed that:

             The circumstances unquestionably establish that at the
             least the accused intended to gratify his lust and sexual
             desires by having sexual intercourse with the victim, and
             that he unlawfully entered her home for that purpose. It is
             also clear that had the victim acquiesced to his desires
             because of her fear, and apprehension of injury induced by
             the apparent show of force, there would have been no
             legitimate consent, and the crime of rape would have been
             committed.

Id. at 996. However, the court also noted that “conviction of attempt requires proof
of an overt act coupled with a specific intention to commit a substantive offense . . .


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MARTIN—ARMY 20110345

. [T]he specific intention to commit the substantive offense and the overt act must
each be proven by the evidence, and proof of the overt act alone cannot be ‘boot
strapped’ up to prove also the specific intent required. ” Id.

      The court explained that the government was required to prove not only the
accused’s desire to have sexual intercourse, but to do so “by force and without her
consent.” Id. at 997. Ultimately, the Air Force Court concluded:

             [T]he evidence does not show that the accused intended to
             have intercourse with the victim wit hout her permission
             and assent. . . . When he saw her refusal to consent was
             final, he left. . . . [D]esistance and flight in the face of
             resistance to a sexually inspired assault may, in itself,
             indicate that the assailant does not intend to effect
             intercourse by force.

Id.

       In United States v. Sampson, this court was confronted with a factual scenario
similar to Polk. 7 M.J. 513 (A.C.M.R. 1979). 8 The accused, while partially dressed,
broke into the on-post home of the victim and confronted her in her bathroom where
she was standing nude after getting out of the shower. Id. at 516. When Sampson
reached toward the victim’s neck and shoulders, she screamed and he darted from
the home with the victim’s husband in pursuit. In conducting its factual sufficiency
review, the court noted that it was required to:

             [C]arefully review[] the record for: (1) proof beyond a
             reasonable doubt that the appellant committed an overt act
             tending toward the completion of rape, which amounted to
             more than mere preparation; and (2) proof beyond a
             reasonable doubt of the appellant's concurrent specific
             intent to commit rape as required for the offense of
             attempted rape.

Id. at 516. In setting aside Sampson’s conviction for attempted rape, the Army
Court found that:

             Although . . . there is sufficient evidence of an overt act
             tending toward the completion of rape, which amounts to
             more than mere preparation, we do not find sufficient

8
  While the elements of rape under Article 120, UCMJ, have changed over time, we
refer to these cases for their relevant discussion of the concept of “force.”



                                          11
MARTIN—ARMY 20110345

             proof beyond a reasonable doubt that the appellant had the
             specific intent required for the offense of attempted rape,
             i.e., that the appellant intended to have sexual intercourse
             with a woman not his wife by force and without her
             consent where he intended to overcome any resistance by
             force, active or constructive, and to penetrate the woman's
             person.

Id. Citing Polk, 48 C.M.R. 993, the Army Court explained that a “generalized evil
desire [for sexual gratification] is not sufficient to establish the specific intent
required to prove an attempted rape.” Id. at 516. It concluded:

             If the evidence is not sufficient to prove beyond a
             reasonable doubt that the accused ever formed an intention
             to overcome whatever resistance he might meet, he cannot
             be convicted of attempted rape. Since there is no clear -cut
             indication that he intended to overcome [the victim] and
             rape her, we cannot conclude beyond a reasonable doubt
             that the appellant is guilty of attempted rape.

Id.

       Here, as in Polk and Sampson, we do not conclude beyond a reasonable doubt
that appellant possessed the specific intent to overcome whatever resistance he
might have met from 2LT MF in order to cause her to touch his penis or have sexual
intercourse with him. Rather, with respect to the attempted aggravated sexual
contact, 2LT MF’s testimony established that she was able to dissuade appellant
with a limited amount of effort before he abandoned that endeavor in order to next
try and persuade her to have sexual intercourse with him. Fortunately, this effort
failed too. Apparently, 2LT MF was able to deter him with a simple refusal and
kicking her “knees up.” 9 However, appellant responded by returning to the crime of

9
  A victim’s ability to successfully fend off an assailant does not foreclose a
successful attempted rape by “using force” prosecution. However, the amount of
physical action exercised by the accused and the degree of resistance by the victim
necessary to frustrate the accused’s attempts are relevant, among other factors, and
must be carefully analyzed to determine if he possessed the requisite intent to
engage in sexual conduct by force. Other factors might include words or threats of
the attacker, or the presence of weapons or other criminal tools. See United States v.
Graves, 47 M.J. 632 (Army Ct. Crim. App. 1997) (conviction for attempted rape
sustained despite no testimony or physical evidence of sexual assault where accused
had prepared prussic handcuffs on a bed in the room to which he tried to take the
victim after brutally assaulting and abducting her).

                                                                  (continued . . .)

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digital rape. In other words, appellant’s “desistance” from his effort s to get 2LT MF
to touch his penis or have sexual intercourse with him occurred when he
immediately moved on to another sexual offense, for which the government secured
conviction. 10

       In its charging decision, the government elected to parse appellant’s conduct
into a range of discrete criminal acts and offenses. In doing so, with respect to the
attempts, the government created the opportunity to convict appellant of more
offenses and increase his punitive exposure. 11 However, this choice also increased
its own burden to prove every element of all charged offenses beyond a reasonable
doubt. Here, we ourselves are not convinced of the factual sufficiency of the
convictions of attempted rape and attempted aggravated sexual contact.

                                   CONCLUSION

       On consideration of the entire record and the assigned errors, the finding s of
guilty of Charge I and its two specifications are set aside and those specifications
and charge 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 the 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).

       In evaluating the Winckelmann factors, despite dismissing two serious sexual
offenses which each carried a maximum sentence of confinement for twenty years,
we still find no dramatic change in the penalty landscape or exposure which might
cause us pause in reassessing appellant’s sentence as one of the remaining offenses,
the completed digital rape, allowed a maximum sentence of confinement for life.
Second, appellant elected to contest his offenses before, and be sentenced by, a
court-martial consisting of a military judge alone. T hird, we find the nature of the
remaining offenses captures the gravamen of the original specifications, and the

(. . . continued)
10
  Despite 2LT MF’s account that appellant digitally penetrated her on multiple
occasions throughout the ordeal, the government only charged him with a single
specification of rape by digital penetration, instead of employing the common
charging language of “on divers occasions .”
11
  Although the government did charge the attempted crimes separately, curiously it
did not elect to charge separately the multiple instances of digital rape.



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circumstances surrounding appellant’s conduct remain admissible with respect to the
remaining offenses. All of the misconduct occurred on one occasion, at the same
location, and against the same victim. Finally, based on our experience, we are
familiar with the remaining offenses so that we may reliably determine what
sentence would have been imposed at trial.

       Reassessing the sentence based on the noted errors and the entire record, we
AFFIRM only so much of the sentence as provides for a dismissal and confinement
for five years. We find this reassessed sentence is not only pu rged 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 and sentence set aside by this
decision, are ordered restored. See UCMJ arts. 58b(c) and 75(a).

      Chief Judge PEDE and Senior Judge COOK concur.

                                        FOR THE COURT:




                                        ANTHONY O. POTT
                                        ANTHONY O. POTTINGER
                                        Acting   Clerk of Court
                                        Chief Deputy Clerk of Court




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