               UNITED STATES NAVY-MARINE CORPS
                  COURT OF CRIMINAL APPEALS
                       WASHINGTON, D.C.
                                  Before
              R.Q. WARD, J.R. MCFARLANE, K.M. MCDONALD
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                     XAVIER E. RAMIREZ-EMPUNO
                  SERGEANT (E-5), U.S. MARINE CORPS

                           NMCCA 201300190
                       GENERAL COURT-MARTIAL


Sentence Adjudged: 18 January 2013.
Military Judge: Col Paul Starita, USMCR.
Convening Authority: Commanding General, Marine Corps
Recruit Depot/Eastern Recruiting Region, Parris Island, SC.
Staff Judge Advocate's Recommendation: Maj R.G. Palmer,
USMC.
For Appellant: C. Ed Massey, Esq.; LT Jared Hernandez,
JAGC, USN.
For Appellee: CDR James E. Carsten, JAGC, USN.

                             27 March 2014

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

PER CURIAM:

     The appellant entered mixed pleas at a trial by general
court-martial with officer and enlisted members. Pursuant to his
pleas, the military judge found the appellant guilty of three
specifications of disobeying a lawful general order, assault
consummated by a battery, adultery, and obstruction of justice,
in violation of Articles 92, 128, and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 892, 928 and 934. The members
convicted the appellant, contrary to his pleas, of aggravated
sexual assault and aggravated sexual contact, in violation of
Article 120, UCMJ, 10 U.S.C. § 920. The adjudged sentence
included eight years of confinement, reduction to pay grade E-1,
and a dishonorable discharge. The convening authority (CA)
approved the sentence as adjudged. As an act of clemency, the
CA waived automatic forfeitures until the appellant’s end of
active obligated service (approximately four months from the
date of the action), provided the appellant established and
maintained a dependent’s allotment in the total amount of the
waived forfeitures.

     The appellant has submitted one assignment of error,
alleging that the findings for the two Article 120 offenses were
legally and factually insufficient. We have examined the record
of trial, the appellant's assignment of error, and the
pleadings. We conclude that the findings and the sentence are
correct in law and fact and that no error materially prejudicial
to the substantial rights of the appellant was committed. Arts.
59(a) and 66(c), UCMJ.
                           Background

     The contested charges in this case arose out of an incident
that occurred while the appellant, a Marine Corps recruiter, was
assigned as a driver in support of the public affairs mission
during Fleet Week 2012 in New York City. One of the Marines the
appellant was driving was Sergeant (Sgt) LS, who was in New York
on temporary assignment to cover the event. The appellant had
numerous interactions with Sgt LS over the course of several
days, both professional and personal. The personal interactions
occurred after duty hours when the appellant socialized with Sgt
LS and her team.

     During Fleet Week the appellant made several sexual
advances toward Sgt LS, despite the fact that he knew that she
was married. Although some of Sgt LS’s interactions with the
appellant were mutually flirtatious, she consistently rebuked
his sexual advances, repeatedly telling him “I can’t do this.”
Record at 538, 557-58, 560. Sgt LS first used those words when
the appellant tried to kiss her on an elevator leaving a night
club. She used them again on the night of the incident that
forms the basis for the charges in this case.

     On Sgt LS’s last night in New York, the appellant called
her hotel room after midnight and told her that he wanted to
come over to see her. Sgt LS told him no and indicated that she


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would not open the door for him. Undaunted, the appellant drove
to Sgt LS’s hotel and presented himself at her door. When she
opened the door, the appellant pushed her against the wall and
began kissing her. Sgt LS, who admitted to finding the
appellant sexually attractive, dropped what she was holding and
momentarily kissed him back. She then pulled away from the
appellant, telling him “I can’t do this.” Id. at 557. Sgt LS
then walked away, only to have the appellant follow her and kiss
her again. Sgt LS once more responded by initially kissing him
back, and then pulling away, telling the appellant “No. I can’t
do this.” Id. at 558. After she turned away from the second
kiss, the appellant quickly unfastened her pants, forced them
down, pushed Sgt LS onto a bed, and began performing oral sex on
her. Sgt LS responded by telling the appellant “You have to
stop. I can’t do this.” Id. at 560. After Sgt LS got off the
bed, and pulled her pants up, the appellant then pulled her
towards him, stuck his hands down her pants, and digitally
penetrated her.

                  Legal and Factual Sufficiency

     The appellant argues that because Sgt LS consensually
kissed him moments before the sexual assault, the Government
failed to prove beyond a reasonable doubt that the appellant did
not have an honest and reasonable belief that Sgt LS consented
to the oral sex and digital penetration. He also avers that the
Government failed to prove beyond a reasonable doubt that the
victim did not, in fact, consent to those acts. We disagree.

     In accordance with Article 66(c), UCMJ, this court reviews
issues of legal and factual sufficiency de novo. United States
v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The test for
legal sufficiency is “whether, considering the evidence in the
light most favorable to the prosecution, a reasonable factfinder
could have found all the essential elements beyond a reasonable
doubt.” United States v. Dobson, 63 M.J. 1, 21 (C.A.A.F. 2006)
(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). When
testing for legal sufficiency, this court must draw every
reasonable inference from the record in favor of the
prosecution. United States v. McGinty, 38 M.J. 131, 132 (C.M.A.
1993); United States v. Blocker, 32 M.J. 281, 284 (C.M.A. 1991).
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, the members of [this
court] are themselves convinced of the accused’s guilt beyond a
reasonable doubt.” United States v. Turner, 25 M.J. 324, 325
(C.M.A. 1987). Reasonable doubt, however, does not mean the

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evidence must be free from conflict. United States v. Rankin,
63 M.J. 552, 557 (N.M.Ct.Crim.App. 2006), aff’d, 64 M.J. 348
(C.A.A.F. 2007). Specific intent may be established by
circumstantial evidence. United States v. Davis, 49 M.J. 79, 83
(C.A.A.F. 1998).

     In this case, any belief that the appellant held that Sgt
LS consented to oral sex or digital penetration was
unreasonable. The fact that she opened her door when he
appeared at her hotel uninvited, and then briefly returned his
kisses, does not provide a reasonable basis for him to believe
that she consented to his sudden and aggressive acts of oral sex
and digital penetration. That is especially true in light of
her having repeatedly broken off the kissing, and telling him “I
can’t do this.” Record at 538, 557-58, 560.

     After carefully reviewing the record of trial and
considering the evidence in the light most favorable to the
prosecution, we are persuaded that a reasonable fact-finder, in
this case a panel of members, could indeed have found all the
essential elements beyond a reasonable doubt. See Dobson, 63
M.J. at 21. Furthermore, after weighing all the evidence in the
record of trial and having made allowances for not having
personally observed the witnesses, we are convinced beyond a
reasonable doubt of the appellant’s guilt. See Turner, 25 M.J.
at 325.

                           Conclusion

     The findings and sentence as approved by the convening
authority are affirmed.


                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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