             UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                              UNITED STATES

                                                          v.

                         Airman First Class CHRISTOPHER J. WINSTON
                                      United States Air Force

                                                   ACM 38402

                                                08 October 2014

            Sentence adjudged 18 April 2013 by GCM convened at Goodfellow
            Air Force Base, Texas. Military Judge: Natalie D. Richardson.

            Approved Sentence: Bad-conduct discharge, forfeiture of $701.00 pay per
            month for 6 months, and reduction to E-1.

            Appellate Counsel for the Appellant: Major Zaven T. Saroyan and Julie K.
            Hasdorff (civilian counsel).

            Appellate Counsel for the United States: Lieutenant Colonel C. Taylor
            Smith; Major Roberto Ramírez; and Gerald R. Bruce, Esquire.

                                                       Before

                                    ALLRED, HECKER, and TELLER
                                       Appellate Military Judges

                                         OPINION OF THE COURT

                         This opinion is subject to editorial correction before final release.



TELLER, Judge:

       Contrary to his pleas, the appellant was convicted at a general court-martial
comprised of officer and enlisted members of three specifications of abusive sexual
contact and one specification of communicating indecent language, in violation of
Articles 120 and 134, UCMJ, 10 U.S.C. §§ 920, 934.1 The court sentenced him to a

1
  The original charge sheet reflects some specifications were withdrawn prior to trial, and the appellant was
acquitted at trial of one specification of abusive sexual contact and two specifications of communicating indecent
language.
bad-conduct discharge, forfeiture of $701.00 pay per month for 6 months, and reduction
to E-1. The convening authority approved the sentence as adjudged.

       The appellant contends: (1) the military judge erred by failing to dismiss the
abusive sexual contact charge for lack of notice; (2) the military judge improperly
admitted evidence of uncharged misconduct; (3) the evidence was legally and factually
insufficient to support his convictions; (4) an unsuspended bad-conduct discharge was
inappropriately severe; and (5) reversal of the conviction is required under the cumulative
error doctrine.

                                               Background

       The appellant, while an operations intelligence technical training student, was
alleged to have made unwanted advances towards other students. Charge II alleged the
appellant directed sexually explicit language at three different classmates. Charge I and
the Additional Charge alleged he engaged in abusive sexual contact with two of those
three classmates and also with a fourth classmate. The appellant was acquitted of two of
the specifications alleged under Charge II and of the Additional Charge.

       Two of the sexual contact specifications that resulted in a conviction relate to
Airman First Class (A1C) KC.2 A1C KC and the appellant attended basic training at the
same time and were classmates in technical training. A1C KC testified that, several
weeks into technical training, the appellant began to make sexually explicit comments to
her. (These comments were the subject of Charge II, Specification 1, of which the
appellant was found not guilty.) At some point during the training, A1C KC and the
appellant got into a disagreement about some rumors the appellant believed were started
by A1C KC and her roommate, A1C LL.3 A1C KC and the appellant agreed to meet one
evening to try and resolve their differences. They walked from the dormitories over to an
area near the base commissary, where they sat down on opposite sides of an outdoor
table.

       According to A1C KC, the appellant soon steered the conversation away from the
rumors. Within a few minutes, the appellant got up and moved over to A1C KC’s side of
the table, put his arm around her, and began to kiss her neck. A1C KC nudged him away
and gave him a disapproving look. The appellant persisted, saying all he wanted was a
kiss. After A1C KC said ok and kissed him on the cheek, the appellant “pulled [her] in
for a kiss.” When he pulled away he said, “It’s not cheating on your husband, if you
don’t kiss me back.” A1C KC testified she became very uncomfortable and stood up to
leave, but the appellant followed her, came up behind her, and gave her a “backwards

2
  By the time of trial, Airman First Class (A1C) KC had changed her name. This opinion will refer to her by her
initials as her name appears on the charge sheet.
3
  A1C LL was the alleged victim in the Additional Charge of abusive sexual contact, of which the appellant was
found not guilty.


                                                      2                                            ACM 38402
hug,” which she shrugged off. A few steps later, the appellant again came up from
behind and wrapped his arms around her, putting one arm on her breast, and squeezed.
A1C KC again stepped away from the appellant, telling him no, but the appellant again
came up and put his arms around her. This time he placed a hand between her legs in
contact with her genitalia and lifted her off the ground. A few days later, A1C KC
reported the incident to the base sexual assault response coordinator (SARC).

        Two of the specifications related to A1C ET, a student in a class behind the
appellant. A1C ET testified she knew the appellant but didn’t hang out with him. During
a unit sports day, the appellant was present when A1C ET was talking about her
upcoming marriage. In response, the appellant said he would “dominate” her, “destroy”
her, and “tear that a[**] up.” These remarks formed the basis for Charge II,
Specification 2, of which the appellant was found not guilty. A1C ET did not confront
the appellant about the statements. Sometime later, as the appellant and A1C ET were
walking away after a unit formation, the appellant briefly grabbed A1C ET “on [her]
butt.”4

       The last specification of which the appellant was convicted related to comments he
made to A1C (then Airman Basic) BP. A1C BP met the appellant during her first week
of technical training. She testified the appellant used various vulgar phrases to suggest he
wanted to have sex with her. She told him to stop and that his comments were
unwelcome, as she had a boyfriend. The appellant’s comments continued and escalated,
however, until at one point he said he would “sneak her into his room and pound her” or
words to that effect. A1C BP took this to have a sexual connotation, and it made her feel
threatened. A1C BP finally confronted the appellant, saying she would “break his arm” if
he did not stop. The confrontation and A1C BP’s efforts to avoid the appellant soon
ended the comments towards her.

        Lack of Notice as to Specific Intent in Abusive Sexual Contact Specifications

       The specifications alleging the appellant engaged in abusive sexual contact
spanned a date range between 1 July 2012 and 30 November 2012. The National
Defense Authorization Act for Fiscal Year 2012 contained changes to Article 120,
UCMJ, that had taken effect by the time of the appellant’s alleged misconduct. However,
the Manual for Courts-Martial (MCM) had not yet been updated to enumerate elements
of the revised offenses. See MCM, Analysis of Punitive Articles, App. 23, A23-15 (2012
ed.). The appellant asserts that, in the absence of an update to the MCM, the case of
United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011), requires the government to
expressly allege which of the two specific intent clauses in Article 120’s definition of

4
   Although the charge sheet alleged abusive sexual contact against A1C ET on divers occasions, A1C ET testified
that this incident was the only one she specifically recalled. The court found the appellant guilty of the offense on
this one occasion by exceptions and substitutions.


                                                         3                                              ACM 38402
“sexual contact” the appellant was required to defend against.5 The government asserts
the specification need only allege, either expressly or by necessary implication, each
element of the offense, and suggests the statutory elements of abusive sexual contact do
not include the specific intent alternatives included in the definition of sexual contact.

       Fosler reiterated the due process notice requirement as it pertains to charging
under the UCMJ:

                 The military is a notice pleading jurisdiction. A charge and
                 specification will be found sufficient if they, first, contain the
                 elements of the offense charged and fairly inform a defendant
                 of the charge against which he must defend, and, second,
                 enable him to plead an acquittal or conviction in bar of future
                 prosecutions for the same offense. The rules governing
                 court-martial procedure encompass the notice requirement:
                 “A specification is sufficient if it alleges every element of the
                 charged offense expressly or by necessary implication.”
                 R.C.M. 307(c)(3).

70 M.J. at 229 (citations, internal quotation marks, and alterations omitted).

       In this particular case, we need not resolve whether statutory definitions can ever
rise to the level of an element for the purposes of Rule for Courts-Martial
(R.C.M.) 307(c)(3) because our superior court has already construed a similar provision
of the previous version of Article 120.

       In United States v. Alston, 69 M.J. 214 (C.A.A.F. 2010), the Court of Appeals for
the Armed Forces addressed whether aggravated sexual assault was a lesser included
offense of rape. To answer that question, the court was required to determine the
elements of the two offenses. The court held “[t]he offense of aggravated sexual assault,
in the context of the charge at issue in the present case, has two elements:
(1) causing another to engage in a sexual act, and (2) causing bodily harm.” Id. at 216.
The definition of “sexual act” applicable to that time was set out in Article 120(t)(1) and
provided:

                 (1) Sexual act. The term “sexual act” means—

                    (A) contact between the penis and the vulva, and for
                 purposes of this subparagraph contact involving the penis
                 occurs upon penetration, however slight; or
5
   Following the 2012 amendment, Article 120(g)(2), UCMJ, 10 U.S.C. § 920(g)(2), defines “sexual contact” as
specified forms of bodily contact done with (1) “an intent to abuse, humiliate, or degrade any person,” or (2) “an
intent to arouse or gratify the sexual desire of any person.”


                                                        4                                            ACM 38402
                  (B) the penetration, however slight, of the genital opening
              of another by a hand or finger or by any object, with an intent
              to abuse, humiliate, harass, or degrade any person or to arouse
              or gratify the sexual desire of any person.

See MCM, Part IV, ¶ 45.a.(t)(1) (2008 ed.) (text of the statute).

       Despite the fact that this statutory definition of sexual act contained two
disjunctive factual predicates and the two specific intent alternatives at issue in this case,
the Alston court did not find either of those statutory alternatives were elements in the
sense of providing notice to the accused of the allegations he was required to defend
against. Although Article 120 has changed since Alston, we do not find the changes
would affect our superior court’s rationale. Accordingly, we hold the abusive sexual
contact specifications properly alleged, expressly or by implication, the elements of the
offense and provided adequate notice to the appellant of the offense charged.

                                  Uncharged Misconduct

       After A1C ET testified about the instance when the appellant grabbed her, the
following exchange ensued:

              [TC:] Now, how many times did that happen?”

              [WIT:] That time is one that I remembered. There could have
              been others. None that I can specifically –

              [DC:] Objection, Your Honor.

              MJ:    Basis or are you withdrawing your objection or –?
                     [The defense consulted with one another.]

              [DC:] Under 404(b), Your Honor, for uncharged misconduct.

              MJ:    Are you moving on government?

              [TC:] Yes, Your Honor.

              MJ:    All right. I’m going to allow that answer. Go ahead.

      The appellant now argues the military judge improperly admitted this evidence of
uncharged misconduct. We disagree.



                                              5                                    ACM 38402
        We review a military judge’s evidentiary rulings for an abuse of discretion.
United States v. McCollum, 58 M.J. 323, 335 (C.A.A.F. 2003). We review the
admissibility of uncharged misconduct under Mil. R. Evid. 404(b), under the three-part
test articulated in United States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989). The first
part of that test is: “Does the evidence reasonably support a finding by the court
members that appellant committed prior crimes, wrongs or acts?” Id.

       The only reasonable interpretation of the testimony allowed by the military judge
is that the witness did not actually recall any other instances. Such testimony is not
evidence of “uncharged misconduct.” While her statement “[t]here could have been
others” may have been the appropriate subject for an objection that the testimony was
speculative, in context it was not evidence of other wrongs subject to a Mil. R.
Evid. 404(b) objection, and therefore, the military judge did not abuse his discretion in
overruling the defense objection.

                              Legal and Factual Sufficiency

       The appellant argues the evidence was factually and legally insufficient to support
his convictions. We review issues of factual and legal sufficiency de novo. United States
v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).

       “The test for legal sufficiency of the evidence is whether, considering the evidence
in the light most favorable to the prosecution, a reasonable factfinder could have found
all the essential elements beyond a reasonable doubt.” United States v. Humpherys,
57 M.J. 83, 94 (C.A.A.F. 2002) (internal quotation marks omitted). The term reasonable
doubt does not mean the evidence must be free from conflict. United States v. Lips,
22 M.J. 679, 684 (A.F.C.M.R. 1986). “[I]n resolving questions of legal sufficiency, we
are bound to draw every reasonable inference from the evidence of record in favor of the
prosecution.” United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001). Our
assessment of legal and factual sufficiency is limited to the evidence produced at trial.
United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993).

       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] convinced of the [appellant]’s guilt beyond a reasonable doubt.” United States
v. Reed, 54 M.J. 37, 41 (C.A.A.F. 2000) (internal quotation marks omitted). In
conducting this unique appellate role, we take “a fresh, impartial look at the evidence,”
applying “neither a presumption of innocence nor a presumption of guilt” to “make [our]
own independent determination as to whether the evidence constitutes proof of each
required element beyond a reasonable doubt.” Washington, 57 M.J. at 399.

      With regard to his convictions for abusive sexual contact, the appellant argues the
evidence is legally insufficient because no direct evidence of intent was admitted.


                                             6                                   ACM 38402
However, “direct evidence of a crime or its elements is not required for a finding of
guilty; circumstantial evidence may suffice.” United States v. Hart, 25 M.J. 143, 147
(C.M.A. 1987); see also R.C.M. 918(c) (“Findings may be based on direct or
circumstantial evidence.”). A factfinder may reasonably rely on the surrounding
circumstances to infer whether an accused had a requisite intent. As to the specifications
relating to A1C KC, a reasonable factfinder could infer the appellant had the intent to
gratify his sexual desires from her testimony that the appellant kissed her shortly before
he touched her breast and genitalia. Similarly, a reasonable factfinder could infer from
the appellant’s statements to A1C ET (that he would “tear that a[**] up”) that the
appellant intended either to abuse, humiliate, or degrade her or to gratify his own sexual
desires by touching her buttocks. The fact that the members did not find the appellant
guilty of the indecent language specification involving this same language does not
render this testimony legally insufficient to support the required mental state for abusive
sexual contact.

        As to his conviction for indecent language, the appellant asserts the evidence does
not support that he said to A1C BP all of the words charged in the specification.
Specifically, the appellant argues he was charged with saying both “I want to
f[***]/pound you” and “I am going to sneak you into my room and f[***] you,” but there
was no evidence introduced on the second phrase. He further asserts there was no
evidence the language was prejudicial to good order and discipline. This claim is
unsupported by the record. On redirect A1C BP testified, “[The appellant] said that
whenever he [became a Transition Period Graduate], he was going to sneak me into his
dorm room, since they were coed[,] and pound me into the floor.” She also testified that
she took the statement to have a sexual connotation. Since the specification charging the
indecent language included the statement “or words to that effect,” A1C BP’s testimony
is legally sufficient to support the appellant’s conviction. A1C BP also testified that, as a
result of the appellant’s statement, “it didn’t exactly feel safe going back to [her] room.”
A reasonable factfinder could certainly infer that undermining A1C BP’s sense of
security in her assigned room prejudiced good order and discipline.

       We are similarly convinced the evidence was factually sufficient. The appellant
places great emphasis on the lack of corroborating evidence for the testimony of A1C
KC, A1C ET, and A1C BP. He suggests all of the alleged incidents occurred in full
public view, and the absence of any corroborating evidence from someone other than the
victim should raise doubts as to the veracity of the victims’ testimony. He specifically
questions the credibility of A1C KC, who testified on cross-examination that she had lied
to her roommate and had omitted any reference to the incident on a medical screening
form. Such questions of credibility depend heavily on the factfinder’s ability to observe
the demeanor of the witness. As noted above, we must make allowances for not having
personally observed the witnesses. After making such allowances, we do not find the
absence of third-party corroborative reports substantially undermines the witnesses’
testimony. We are also not convinced A1C BP’s admitted false statements and minor


                                             7                                    ACM 38402
inconsistencies are of such a character that they call her testimony about being assaulted
into question. Having weighed all the evidence in the record of trial and having made
allowances for not personally observing the witnesses, we are convinced of the
appellant’s guilt beyond a reasonable doubt.

                                 Sentence Appropriateness

       The appellant further contends his unsuspended bad-conduct discharge is
inappropriately severe. In reviewing sentence appropriateness, we “may affirm only such
findings of guilty and the sentence or such part or amount of the sentence, as [we find]
correct in law and fact and determine[], on the basis of the entire record, should be
approved.”     Article 66(c), UCMJ, 10 U.S.C. § 866(c).              We assess sentence
appropriateness by considering the particular appellant, the nature and seriousness of the
offense, the appellant’s record of service, and all matters contained in the record of trial.
United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982); United States v. Rangel,
64 M.J. 678, 686 (A.F. Ct. Crim. App. 2007). We have a great deal of discretion in
determining whether a particular sentence is appropriate, but we are not authorized to
engage in exercises of clemency. United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F.
1999); United States v. Healy, 26 M.J. 394, 395–96 (C.M.A. 1988).

       Applying these standards to the present case, we do not find a bad-conduct
discharge inappropriately severe for the appellant’s pattern of abusive conduct towards
his fellow Airmen. In particular, we note the approved sentence included no
confinement. The appellant invites us to consider case law holding that the substitution
of up to two years of confinement for a bad-conduct discharge did not increase the
severity of the sentence. Instead, we are mindful of our superior court’s holding that a
bad-conduct discharge is “qualitatively different” than confinement. United States v.
Zarbatany, 70 M.J. 169, 175 (C.A.A.F. 2011). We find that a sentence that focuses on
the punitive termination of the appellant’s military status is appropriate in light of the
corrosive effect his conduct had on the mutual trust essential to military service.

                                     Cumulative Error

       Finally, the appellant contends that even if none of his multiple assignments of
error entitle him to relief, he is nevertheless entitled to relief under the cumulative error
doctrine. We review such claims de novo. United States v. Pope, 69 M.J. 328, 335
(C.A.A.F. 2011). Under this doctrine, “a number of errors, no one perhaps sufficient to
merit reversal, in combination necessitate the disapproval of a finding.” Id. (quoting
United States v. Banks, 36 M.J. 150, 170–71 (C.M.A. 1992). As we have found no merit
in any of the appellant’s assigned errors, the cumulative error doctrine provides the
appellant with no basis for relief. See United States v. Gray, 51 M.J. 1, 61 (C.A.A.F.
1999) (“Assertions of error without merit are not sufficient to invoke this doctrine.”).



                                             8                                     ACM 38402
                                                  Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred.6 Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and
sentence are AFFIRMED.



                 FOR THE COURT


                 STEVEN LUCAS
                 Clerk of the Court




6
  The court-martial order (CMO) contains minor typographical errors. The CMO states that Specification 1 of
Charge I alleged the appellant touched the victim’s breast with “is” hand vice with “his” hand; it also erroneously
reports that Specification 3 of Charge I alleged the appellant touched the victim’s buttocks “by causing bodily harm
to [the victim’s] buttocks with his hand” vice “by causing bodily harm to [the victim].” We order promulgation of a
corrected CMO.


                                                         9                                             ACM 38402
