UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                       SALUSSOLIA, ALDYKIEWICZ, and EWING
                              Appellate Military Judges

                          UNITED STATES, Appellee
                                        v.
                    Sergeant First Class CORRY P. BROOKS
                         United States Army, Appellant

                                   ARMY 20170087

                            Headquarters, Fort Bragg
              Jeffery R. Nance and S. Charles Neill, Military Judges
       Lieutenant Colonel Edward Linneweber, Acting Staff Judge Advocate


For Appellant: Lieutenant Colonel Christopher D. Carrier, JA; Major Julie L.
Borchers, JA; Captain Steven J. Dray (on brief).

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Major Hannah E. Kaufman,
JA; Captain Meredith M. Picard, JA (on brief).


                                       5 July 2019

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

ALDYKIEWICZ, Judge:

       Appellant argues the military judge erred in his application of the Jencks Act,
18 U.S.C. § 3500, and Rule for Courts-Martial [R.C.M.] 914, by not striking the
victim’s direct testimony at trial. We disagree and hold that, at a minimum, a
statement is not “in the possession of the United States” for purposes of the Jencks
Act and R.C.M. 914 when it is: (1) made to state law enforcement, and (2) not part
of a joint investigation.

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of four specifications of rape and one specification of assault
consummated by a battery, in violation of Articles 120 and 128, Uniform Code of
Military Justice, 10 U.S.C. §§ 920 and 928 [UCMJ]. The military judge sentenced
appellant to a dishonorable discharge, confinement for fourteen years, and reduction
to the grade of E-1. The convening authority approved the adjudged sentence and
credited appellant with sixteen days against his sentence to confinement.
BROOKS—ARMY 20170087

       Appellant’s case is now before us for review under Article 66, UCMJ. 1
Appellant’s sole assigned error, that “the military judge erred in his application of
the Jencks Act, 18 U.S.C. § 3500 and Rule for Courts-Martial 914,” warrants
discussion but no relief. Although not raised, appellant’s multiple convictions for
offenses prosecuted using “alternate theories of liability” to address “exigencies of
proof” when prosecuting singular acts does raise legal error requiring remedial
action by this court, which we take in our decretal paragraph.

                                 I. BACKGROUND

                         Appellant’s Rape and Assault of LB

      Appellant met his victim, LB, online, meeting in-person some time in 2013.
Approximately one year later, on 12 May 2014, they met again; in the early morning
hours of 13 May 2014, appellant raped and assaulted LB.

       The evening of 12 May 2014, appellant and LB went out for dinner and
eventually returned to his home, where LB changed into a pair of “boxers and a t-
shirt,” clothing appellant provided her. After changing, appellant and LB watched
television together and they kissed, a kiss LB initiated. Appellant then placed his
hand on LB’s breast, but LB, believing things were moving too fast, immediately
pushed his hand away. This enraged appellant. He told her to “get the fuck out of
his clothes, he was taking [her] the fuck home.” Frightened, LB changed back into
her clothes. At this point, appellant said, “Fuck that. You’re giving me fucking
head . . . . You’re giving it to me now and you’re going to give it to me on the way
home. You’re giving me fucking head or I’m going to throw you in the woods and
good luck with getting home.”

       Frightened, LB asked if she could use the bathroom to “freshen up.” While in
the bathroom, LB called 911, but was disconnected. Appellant forced the bathroom
door open and choked LB, causing her to black out.

       The next thing LB recalls is waking up to appellant choking her in his vehicle
as she tried to escape. Appellant ordered her to perform oral sex on him as he drove.
Holding her head down, appellant forced LB’s compliance with his demand.
Eventually, appellant allowed LB to roll down the window to have a cigarette. LB
jumped out of the window and took off running. Her escape efforts, however, failed.
Appellant gave chase, caught her, and dragged her back to his vehicle. Having


1
 Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), appellant
personally asserted four additional claims of error. We have considered appellant’s
matters under Grostefon and find they merit neither discussion nor relief.




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prevented LB’s successful escape, appellant continued his drive to LB’s home,
during which he again ordered LB to perform oral sex on him, which she did.

       As they passed the road to LB’s house, LB asked appellant “why are you
passing the road?” Appellant responded that they would “fuck” before he took her
home. He then proceeded to drive around, eventually stopping at the end of a dead-
end road near LB’s home. Once stopped, appellant ordered LB to take off her
clothes and get in the backseat of his vehicle, where appellant again raped LB.

       Finished with LB, appellant ordered her to get dressed, drove her the short
distance to her home, and left the area. LB immediately called 911 and reported that
she had been raped.

          LB’s Interview and Statement to the Lee County Sheriff’s Office

       On 13 May 2014, within hours of the rape, LB was interviewed by a Lee
County Sherriff’s Office (LCSO) detective, Detective W. The interview lasted a
total of three and a half hours and was recorded (audio only). After approximately
the first two hours of the interview, Detective W and LB took a break. When they
returned, the interview continued for another hour and a half. Because LB’s writing
hand was fractured, Detective W hand-wrote LB’s statement while in the interview
room. At the close of the interview, they proceeded to Detective W’s office where
he typed her statement. After reviewing both the handwritten and typed statements
for accuracy and truthfulness, LB signed the typewritten statement.

       The LCSO interview room used on 13 May 2014 had continuous recording
capability, meaning it was in record mode at all times regardless of whether an
interview was in progress. By all accounts, on 13 May 2014, the system was
operational and recorded LB’s interview in its entirety. At the time, the system
automatically overwrote recordings depending on hard drive space requirements. As
a result, recordings (e.g., interviews) were only maintained on the system’s hard
drive for fourteen to twenty-eight days.

       On 27 May 2014, two weeks after LB’s interview, Detective W extracted what
he believed was the complete LB interview. Extraction occurred by querying the
system using the start and end times of the interview and transferring the recording
for the queried period from the hard drive to a compact disc. Detective W queried
the system for the period immediately preceding his initial entry into the interview
room with LB and their break as indicated by their departure from the interview
room and his turning off of the interview room lights, mistakenly believing the latter
event to be the termination of the interview rather than the start of their break.
Detective W forgot that he and LB returned to the interview room following their
break where the interview continued for another hour and a half.




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       Detective W’s oversight went undetected for over thirty-two months; his
failure to extract the entire interview was not discovered until 10 February 2017
when the government was preparing LB for trial.

       No military personnel were present during LB’s interview at the LCSO. After
the interview, the LCSO detective briefed an agent with the United States Army
Criminal Investigation Command (CID) office at Fort Bragg due to appellant’s status
as an active duty soldier.

       At trial, appellant’s defense counsel moved to preclude LB from testifying,
citing both the Jencks Act and R.C.M. 914. Following a pretrial motions hearing
and after receiving testimony from Detective W, the military judge denied the
defense motion. Specifically, the military judge held the lost portion of LB’s
interview was never in the possession of the United States and therefore, no
violation of the Jencks Act or R.C.M. 914. 2

                   Among his essential findings of fact, the military
             judge noted:

             On or about 13 May 2014, Ms. [LB] (the alleged victim)
             gave multiple statements to civilian law enforcement,
             including statements at a local hospital and at a local
             sheriff’s office. She made these statements within hours
             of the charged offenses. No one from military law
             enforcement was present when these statements were
             made. Detective [W] of the [LCSO] interviewed the
             alleged victim. For the statements relevant for this
             motion, Detective [W] conducted an interview of the
             alleged victim in an interview room at the sheriff’s office.

             The entire interview at the sheriff’s office lasted
             approximately three-and-half hours. When civilian law
             enforcement attempted to transfer the recorded interview,
             only the first two hours were transferred. The remaining
             90 minutes was not transferred and was deleted from the
             original media source. According to Detective [W], this
             deletion is automatic within one month of a recording
             being made.


2
  The military judge also found that the “law enforcement and the government acted
in good faith and provided the [preserved portion of the] recording to the Defense in
a timely manner.”




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BROOKS—ARMY 20170087

             The [c]ourt finds the missing portions of the alleged
             victim’s interview would have been deleted no later than
             13 June 2014.

             The [c]ourt finds that this investigation was not “joint” in
             any sense of the word until July or August 2014. In
             reviewing the agent notes, the [c]ourt determines that CID
             was providing minimal assistance to local law
             enforcement. In June 2014, CID began investigating an
             alleged larceny of smoke grenades which triggered a
             seemingly-intensive CID investigation . . . However,
             throughout all entries, CID was not investigating the
             charged offenses. On 15 July 2014, the agent notes show
             two attempts to contact Detective [W] to determine if
             needs (sic) “any other assistance.” There was no evidence
             that CID provided anything aside from basic support to
             this civilian law enforcement inquiry.

             To the contrary, Detective [W] testified that CID was
             present during a search of the accused’s on-post
             residence. 3 No one from CID collected evidence during
             this search. Notably, there were smoke grenades seized
             that law enforcement believed may have been stolen.
             Even though there was possible stolen military property,
             CID did not take the evidence; rather, civilian law
             enforcement seized and inventoried the smoke grenades.
             This further supports the conclusion that this investigation
             was conducted by civilian law enforcement, as opposed to
             a “joint” investigation with the military.

             Detective [W] testified that the local district attorney’s
             office eventually recommended the accused be tried in
             military court. According to Detective [W], this decision
             was made in July or August 2014 because civilian


3
 On 13 May 2014, the LCSO executed a search of appellant’s residence. Appellant
points out in his brief, properly so, that the military judge mistakenly referred to
appellant’s “on-post” residence when discussing the search executed by LCSO
personnel, a search in which CID personnel were present. Appellant’s residence was
“off post.” With that one exception, we find the military judge’s findings of fact to
be supported by the record; this one “clearly erroneous” fact is non-dispositive to
our ruling.




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BROOKS—ARMY 20170087

             prosecutors believed the military could more easily admit
             evidence under [Mil. R. Evid.] 404(b), to include evidence
             about similar offenses against the accused’s former wife.
             This timeline matches the agent’s notes regarding Ms. [K]
             (the former wife) in mid-July 2014. 4

             There was no evidence presented that law enforcement
             acted in bad faith or in a negligent manner in recording
             [LB]’s statement on 13 May 2014.

             The [c]ourt found Detective [W] to be a credible witness.
             He answered questions candidly and did not appear to
             have a bias.

             The [c]ourt finds that law enforcement and the
             Government acted in good faith and provided the
             recording to the Defense in a timely manner.

                           II. LAW AND DISCUSSION

                          A. The Jencks Act and R.C.M. 914

                                 1. Standard of Review

       A military judge’s decision whether to strike testimony under the Jencks Act
and R.C.M. 914 is reviewed for abuse of discretion. United States v. Muwwakkil, 74
M.J. 187, 191 (C.A.A.F. 2015) (citations omitted). An abuse of discretion occurs
when a military judge’s findings of facts are clearly erroneous or his conclusions of
law are incorrect. United States v. Olson, 74 M.J. 132, 134 (C.A.A.F. 2015)
(citation omitted). We conclude the military judge did not abuse his discretion by
allowing LB to testify.

                      2. Purpose of the Jencks Act and R.C.M. 914

       The Jencks Act, enacted in 1957, requires the military judge, upon motion by
the accused, to order the government to disclose prior statements of its witnesses, in
the possession of the United States, that are related to the subject matter of their
testimony after the witness testifies on direct examination. See 18 U.S.C. § 3500.
“In 1984, the President promulgated R.C.M. 914, and this rule ‘tracks the language


4
 The case was officially turned over to military authorities for disposition in April
2015.




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BROOKS—ARMY 20170087

of the Jencks Act, but it also includes disclosure of prior statements by defense
witnesses other than the accused.’” Muwwakkil, 74 M.J. at 190 (C.A.A.F. 2015)
(citations omitted). The purpose of both the Jencks Act and R.C.M. 914 is “to
further the fair and just administration of criminal justice by providing for
disclosure of statements for impeaching government witnesses.” Id. (citing
Goldberg v. United States, 425 U.S. 94, 107 (1976)) (further citation and internal
quotation marks omitted).

                        3. Scope of the Jencks Act and R.C.M. 914

       A statement under the Jencks Act includes “a stenographic, mechanical,
electrical, or other recording, or a transcription thereof, which is a substantially
verbatim recital of an oral statement made by the said witness and recorded
contemporaneously with the making of such an oral statement.” 18 U.S.C. §
3500(e)(2). Similarly, an R.C.M. 914 statement includes “[a] substantially verbatim
recital of an oral statement made by the witness that is recorded contemporaneously
with the making of the oral statement and contained in stenographic, mechanical,
electrical, or other recording or a transcription thereof.” R.C.M. 914(f)(2). In short,
an audio recording of a witness interview is a “statement” for both Jencks Act and
R.C.M. 914 purposes.

                                4. Remedies for Violations

       Where the United States fails to produce a requested Jencks Act covered
statement, “the court shall strike from the record the testimony of the witness, and
the trial shall proceed unless the court in its discretion shall determine that the
interests of justice require that a mistrial be declared.” 18 U.S.C. § 3500(d). A
similar remedy is found in R.C.M. 914 which states, “[i]f the other party elects not
to comply with an order to deliver a statement to the moving party, the military
judge shall order that the testimony of the witness be disregarded by the trier of fact
and that the trial proceed, or, if it is the trial counsel who elects not to comply, shall
declare a mistrial if required in the interest of justice.” R.C.M. 914(e).

       The “strike” or “mistrial” remedy is not absolute. “A trial court has the
discretion not to impose sanctions for noncompliance with the dictates of the Jencks
Act.” United States v. Sterling, 742 F.2d 521, 524 (9th Cir. 1984); see also, United
States v. Young, 916 F.3d 368, 383 (4th Cir. 2019) (no abuse of discretion by
granting continuance instead of striking testimony for Jencks Act violation when
government’s last-minute disclosures were not the result of bad-faith).

       That the Jencks Act, R.C.M. 914, and the remedies therein extend to lost or
destroyed statements of witnesses previously in the possession of the United States
is well settled. See Muwwakkil, 74 M.J. at 193 (C.A.A.F. 2015) (“judicial
interpretations of the Jencks Act by the Supreme Court, our predecessor Court, and



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the federal circuit courts, all [ ] have applied the Jencks Act to destroyed or lost
statements”) (citations omitted).

                     5. “In the possession of the United States”

       “[T]he key question posed by most courts [in Jencks Act cases] is that of
possession.” United States v. Fort, 472 F.3d 1106, 1117 (9th Cir. 2007).
Appellant’s Jencks Act and R.C.M. 914 claim hinges on that very issue: whether the
lost audio recording of LB’s interview (the last hour and a half of her interview)
[hereinafter LB’s statement] was in the possession of the United States at any time
between its initial creation and ultimate loss (13 May 2014 through 13 June 2014).

       “A statement is ‘in the possession of the United States’ for Jencks Act
purposes if it is in the possession of a federal prosecutorial agency.’” United States
v. Naranjo, 634 F.3d 1198, 1211-12 (11th Cir. 2011) (citation omitted). The Jencks
Act does not apply to statements in the possession of foreign law enforcement
officials or state law enforcement officials. See, e.g., United States v. Lee, 723 F.3d
134 (2d Cir. 2013) (Jencks Act creates no obligation to provide statements in the
possession of foreign law enforcement officials); United States v. Weaver, 267 F.3d
231, 245 (3d Cir. 2001) (Jencks Act does not apply to evidence in the possession of
state authorities).

                                  6. Joint Investigation

       The prosecutorial arm of the federal government may, in certain cases,
include non-federal entities such as the LCSO when the non-federal entity is acting
in concert with (e.g., jointly) or at the behest of the federal government as its agent.
See United States v. Moeckly, 769 F.2d 453, 463 (8th Cir. 1985) (Jencks act does not
apply to statements made to state officials when not a joint investigation with
federal authorities”) (citations omitted).

       If the LCSO and CID were involved in a “joint” investigation, the disclosure
obligations of the Jencks Act and R.C.M. 914 apply. See, e.g., United States v.
Reyeros, 537 F.3d 270, 283-284 (3d Cir. 2008) (United States under no obligation to
provide Colombian investigation and documents that: the United States never saw,
were inaccessible to the United States, were not part of a joint investigation, and
were not prepared as a result of an investigation over which the United States had
direction or control). Stated another way, the prosecution cannot stand on a
technicality and say they did not have actual possession of LB’s statement if the
statement was obtained as part of a “joint” investigation or by “agents” of the
federal government. See, e.g., United States v. Heath, 580 F.2d 1011, 1018-1019
(10th Cir. 1978).




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BROOKS—ARMY 20170087

       To resolve the above questions, one looks to the type of relationship, if any,
between the non-federal entity in possession of the statement at issue and the United
States authorities prosecuting the case. This is a case-by-case, fact specific inquiry.
This court’s comment in United States v. Redd, 67 M.J. 581 (Army Ct. Crim. App.
2008) in assessing the joint nature of an investigation for Article 31, UCMJ purposes
is equally apropos to a Jencks Act and R.C.M. 914 disclosure scenario. In Redd, we
noted: “We look to the surrounding facts to determine whether an investigation is
joint or separate for purposes of applying Article 31 rights warning requirements and
are not bound by the characterization of the investigation by civilian or military law
enforcement agencies.” Id. at 587.

       Appellant provides no date certain of when the LCSO investigation
joined or was joined by CID. His pleadings at the trial level as well as on
appeal, however, make clear that appellant’s argument is that CID and the
LCSO were engaged in a joint investigation at some time on or before the loss
of LB’s statement (13 June 2014).

                             7. Actual Possession

       In support of his claim that CID was involved in a “joint” investigation, and
therefore had actual possession of LB’s lost statement, appellant alleges, inter alia:

             CID worked with a law enforcement agency to (1) secure a
             suspect, (2) secure his keys, (3) secure his cell phone, (4)
             secure his vehicle, (5) seek out and receive a search
             authorization from a military magistrate, even where
             LCSO seemed to have its own authorization, (6) execute
             the search authorization on the suspect’s person and
             vehicle, (7) execute the search authorization of an off-post
             residence of a Soldier, located more than twenty-six miles
             from their CID office, (8) turn evidence over to LCSO, (9)
             brief multiple commanders, and (10) brief the Army
             prosecutor on the case. 5

(emphasis in original).




5
  The listing of activities provided by appellant are all focused on CID’s action
related to the sexual assault of LB and not related to CID’s separate and unrelated
larceny investigation.




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BROOKS—ARMY 20170087

       As further support of his position, appellant adds: “[s]ecuring suspects,
locating evidence, and securing and executing search authorizations is law
enforcement.” (emphasis in original).

       There is a difference between routine federal-state cooperation and “joint”
investigations. Without question, the list of activities cited by appellant is properly
characterized as law enforcement activity. The test, however, is not whether CID
was engaged in law enforcement activity during the period when LCSO interviewed
LB about the rape. Rather, the question is whether CID was part of a “joint”
investigation with LCSO, or whether Detective W was acting as an agent of CID.

       To accept appellant’s list of activities as proof of the “joint” nature of the
investigation would be tantamount to a pronouncement that any CID involvement in
a state criminal investigation transforms that investigation into a “joint”
investigation for Jencks Act and R.C.M. 914 purposes; it does not. It is hard to
imagine a situation where CID and/or military authorities will not be involved in a
search and/or seizure by civilian authorities executed on a military installation.

       As the Second Circuit noted, “The investigation of crime increasingly requires
[ ] cooperation.” United States v. Getto, 729 F.3d 221, 231 (2d Cir. 2013).
Rendering assistance to local law enforcement officers (e.g., state or foreign
authorities), whether “minimal” as the military judge found in appellant’s case or
otherwise, does not transform a separate and independent civilian investigation into
a “joint” investigation. Similarly, conducting a parallel investigation (e.g.,
simultaneous yet separate, independent investigations) does not make the federal
government accountable for the actions of non-federal entities, in this case, the
LCSO personnel. Appellant cites no authority stating otherwise and we have found
none.

                             8. Constructive Possession

       In addition to arguing “actual possession” due to the alleged “joint” nature of
the LCSO investigation, appellant argues that “CID had constructive possession [of
LB’s statement] and cannot simply reject culpability and place all negligence on the
LCSO.” Appellant cites no authority in support of his argument that CID somehow
had constructive possession of LB’s lost statement. Accordingly, we find his claim
meritless.

       In addressing constructive possession, the Third Circuit looked to three
factors:

             (1) whether the party with knowledge of the information is
             acting on the government's ‘behalf’ or is under its
             ‘control’; (2) the extent to which state and federal
             governments are part of a ‘team,’ are participating in a


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BROOKS—ARMY 20170087

             ‘joint investigation’ or are sharing resources; and (3)
             whether the entity charged with constructive possession
             has ‘ready access’ to the evidence.

Reyeros, 537 F.3d at 281 (3d Cir. 2008). By analogy, in addressing imputation,
albeit in a Brady context, the Eleventh Circuit noted: “Knowledge of information
that state investigators obtain is not imputed for Brady purposes to federal
investigators who conduct a separate investigation when the separate investigative
teams do not collaborate extensively.” Naranjo, 634 F.3d at 1212 (citation omitted).

       On 13 May 2014, CID did not participate in LB’s interview. The interview
was not at the behest or direction of CID. At no time between 13 May 2014 and 13
June 2014 was LCSO acting on behalf of CID or under its direction or control. To
the extent that assistance was provided by CID, it was in those areas where LCSO
had little to no option but to seek assistance: entry onto a military installation to
arrest appellant while at work, search his person, and search his vehicle on the
installation at the time. While information was exchanged, “resources” were not
shared and to the extent that any evidence was found during the relevant period, the
evidence was secured and maintained by LCSO, not CID; CID did not have “ready
access” to the LCSO evidence. At no time did CID have access to, let alone
dominion or control over, LB’s lost statement.

       The military judge did not abuse his discretion in finding no Jencks Act or
R.C.M. 914 violation. Having found that the statement at issue was never in the
actual or constructive possession of the United States, we need not and do not
address whether the loss was willful, reckless, negligent, or in accordance with then
existing procedures at LCSO. Furthermore, we need not characterize the loss as
resulting from a “good faith” or “bad faith” loss. Finally, whether or to what extent
appellant may have been prejudiced, if at all, by the loss need not be addressed.

             B. Factual Sufficiency and Alternate Theories of Liability

       Appellant stands convicted of four rape offenses all stemming from his
actions on 13 May 2014. The evidence and record reveals, however, only three
discrete sexual acts, each charged under alternate theories of liability.

       On 13 May 2014, appellant raped LB three times. The first rape occurred
when appellant and LB initially departed his home in his vehicle en route to LB’s
residence and prior to her failed escape attempt [first rape]. The second rape
occurred after appellant captured LB following her failed escape and before
appellant directed LB to undress and get in the backseat of his vehicle [second rape].
The third and final rape occurred in the backseat of appellant’s vehicle [third rape].
The first and second rapes involve insertion of appellant’s penis in LB’s mouth




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while in the front seat of appellant’s vehicle; the third rape involves appellant’s
penile penetration of LB’s vulva.

       Specification 4 of Charge I (rape by threatening or placing victim in fear) and
Specification 5 (rape by unlawful force) address the third rape. During its opening,
the government noted that the pleadings were charged in the “alternative,” a position
that they confirmed prior to findings. When the military judge asked the parties how
to handle the alternative pleadings, both the government and defense agreed that
appellant could be found guilty of both specifications but they would be merged for
sentencing; the military judge agreed and did just that, entering findings of guilty
for both Specifications 4 and 5 of Charge I and merging them for sentencing.

       Specification 6 of Charge I (rape by threatening or placing victim in fear) and
Specification 7 (rape by unlawful force) address the first and second rapes. Both
specifications allege rape on “divers occasions.” By charging “divers” occasions,
the pleadings alleged “two or more occasions.” 6 Neither counsel nor the military
judge addressed whether the pleadings were “in the alternative.” However, a review
of the record reveals that, notwithstanding the parties’ silence, Specifications 6 and
7 were in fact charged in the alternative. In other words, the first and second rapes
were charged under a “by threatening or placing in fear” theory (Specification 6 of
Charge I) as well as under an “unlawful force” theory (Specification 7 of Charge I).

        If left undisturbed, the findings portray an appellant who engaged in and
stands convicted of four rapes of [LB] covering six sexual acts: Specification 4 (one
act of rape), Specification 5 (one act of rape), Specification 6 (“two or more” rapes),
and Specification 7 (“two or more” rapes). Regarding sentencing, only
Specifications 4 and 5 were merged for sentencing; the alternative nature of
Specifications 6 and 7 was not addressed at sentencing.

                                1. Factual Sufficiency

       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). 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 appellant's guilt
beyond a reasonable doubt.” Id. (citing United States v. Turner, 25 M.J. 324, 325


6
 See Dep’t of the Army, Pam. 27-9, Legal Services: Military Judges’ Benchbook,
para. 7-25 (10 Sep. 2014).




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BROOKS—ARMY 20170087

(C.M.A. 1987)). “[T]o sustain appellant’s conviction, we must find that the
government has proven all essential elements and, taken together as a whole, the
parcels of proof credibly and coherently demonstrate that appellant is guilty beyond
a reasonable doubt.” Id. (citations omitted).

       On the record before us, we are convinced that appellant committed a sexual
act upon LB, on divers occasions (i.e., first and second rape), by threatening and
placing LB “in fear that she would be subjected to death and grievous bodily harm
and kidnapping.” In other words, we are convinced that Specification 6 of Charge I
is factually sufficient. Regarding Specification 7 of Charge I, while the government
introduced sufficient evidence that appellant accomplished the first rape by
“grabbing [LB’s] head and forcing her mouth onto his penis with his hand,” there
was no such evidence of the same or similar assaultive behavior presented, direct or
otherwise, regarding the second rape. As a result, the prosecution failed to establish
“divers occasions” for Specification 7 of Charge I. We therefore dismiss the
language “on divers occasions” from Specification 7 of Charge I, leaving a finding
of guilt as to a single rape by unlawful force (first rape).

                          2. Alternate Theories of Liability

       We next address how appellant was tried for committing three discrete sexual
acts but was convicted of six sexual acts.

       Our superior court has explained that when an appellant stands convicted of
two specifications “charged [in the alternative] for exigencies of proof,” we are
required “either to consolidate or dismiss a specification.” United States v.
Elespuru, 73 M.J. 326, 329 (C.A.A.F. 2014) (citing United States v. Mayberry, 72
M.J. 467, 467-68 (C.A.A.F. 2013)).

       In such circumstances, dismissal of one specification “is particularly
appropriate given the nuances and complexity of Article 120, UCMJ, which make
charging in the alternative an unexceptional and often prudent decision.” Elespuru,
73 M.J. at 329-30. This guidance is apropos to this case. Accordingly,
Specification 5 of Charge I and Specification 7 of Charge I, as modified by our
factual sufficiency review, shall be conditionally dismissed.

                             C. Sentence Reassessment

      Applying the principles of United States v. Sales, 22 M.J. 305, 308 (C.M.A.
1986) and the factors set forth in United States v. Winckelmann, 73 M.J. 11, 15-16
(C.A.A.F. 2013), we conclude that we can confidently reassess appellant’s sentence
without returning this case for a sentence rehearing.




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       Our modified findings, affirming two rape convictions (Specification 4 of
Charge I and Specification 6 of Charge I) and conditionally dismissing Specification
5 of Charge I and the modified Specification 7 of Charge I results in no reduction of
appellant’s maximum sentence exposure. Before any adjustment to the findings,
appellant faced a maximum punishment of a dishonorable discharge, confinement for
life without the eligibility of parole, forfeiture of all pay and allowances, and
reduction to E-1. His maximum sentence following the conditional dismissal of
Specifications 5 of Charge I and modified Specification 7 of Charge I is unchanged.

       As for the finding of guilt related to Specification 5 of Charge I, we have no
doubt that this finding, conditionally dismissed by us herein, resulted in no prejudice
to appellant. The military judge merged, for sentencing purposes, Specification 4 of
Charge I with Specification 5 of Charge I. As for the finding of guilt related to the
original Specification 7 of Charge I (finding criminal acts “on divers occasions”),
we are equally confident that this finding of guilt, as modified and likewise
conditionally dismissed by us herein, resulted in no prejudice to appellant.

       The admissible aggravation evidence before the court, a military judge sitting
alone, is unchanged by the modified findings herein. The horror story told by LB
regarding the events of 13 May 2014 is the same notwithstanding the modified
findings; the remaining offenses capture the gravamen of appellant’s crimes – first
strangling LB with his hands around her neck and then three successive, discrete,
and violent rapes of her.

       Finally, appellant’s remaining convictions are ones that members of this
court have experience and familiarity with such that we can reliably determine what
sentence would have been imposed at trial.

      Based on the entire record, we conclude the military judge would have
imposed a sentence of at least that which was approved.

                                   CONCLUSION

       The findings of guilty as to Specification 4 of Charge I is AFFIRMED.
Specification 5 of Charge I will be DISMISSED upon Specification 4 of Charge I
surviving “final judgment” of the proceedings. The findings of guilty as to
Specification 6 of Charge I is AFFIRMED. Specification 7 of Charge I, as modified
herein by dismissal of the language “on divers occasions” will be DISMISSED upon
Specification 6 of Charge I surviving “final judgment” of the proceedings. See
UCMJ, art. 71(c)(1) (defining “final judgment”). Specification 3 of Charge II is
AFFIRMED. The sentence is AFFIRMED.




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    Senior Judge SALUSSOLIA and Judge EWING concur.

                               FOR THE
                               FOR THE COURT:
                                       COURT:




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




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