          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                         Technical Sergeant SHAUN R. WILKINSON
                                   United States Air Force

                                              ACM S32218

                                                11 May 15

         Sentence adjudged 20 December 2013 by SPCM convened at Fairchild
         Air Force Base, Washington. Military Judge: William C. Muldoon.

         Approved Sentence: Bad-conduct discharge, confinement for 6 months,
         reduction to E-3, and a reprimand.

         Appellate Counsel for the Appellant:                 Major Jeffrey A. Davis and
         Captain Travis L. Vaughan.

         Appellate Counsel for the United States: Captain Thomas J. Alford and
         Gerald R. Bruce, Esquire.

                                                  Before

                            MITCHELL, WEBER, and CONTOVEROS
                                  Appellate Military Judges

                                     OPINION OF THE COURT

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                              under AFCCA Rule of Practice and Procedure 18.4.



WEBER, Judge:

       A panel of officer and enlisted members at a special court-martial convicted the
appellant, contrary to his pleas, of two specifications of sexual abuse of a child, in
violation of Article 120b, UCMJ, 10 U.S.C. § 920b. The members acquitted the
appellant of one charge and one specification alleging assault consummated by a battery.
The adjudged and approved sentence consisted of a bad-conduct discharge, confinement
for 6 months, reduction to E-3, and a reprimand.
       On appeal, the appellant raises six assignments of error, challenging various
rulings and actions of the military judge, the composition of his panel, and the legal and
factual sufficiency of his conviction. We find the appellant’s conviction of both
specifications of sexual abuse of a child factually insufficient, rendering moot the
remaining issues.

                                       Background

       WO was the appellant’s 14-year-old niece. Several members of the family lived in
close proximity and saw each other regularly. In particular, WO and WO’s grandmother
visited the appellant and his wife often.

       WO alleged that in late June or early July 2013, she, the appellant, the appellant’s
wife, and WO’s grandmother played Jeopardy! on a gaming system at the appellant’s
house. During the second game, WO and the appellant were paired up on one couch,
with the appellant’s wife and WO’s grandmother on the other. WO alleged the appellant
touched her clothed buttocks during this game while they sat on the couch. WO did not
say anything in response to this; her later explanation was that the appellant’s wife would
not believe her. WO also alleged that the appellant kissed her that night in the hallway,
but the members acquitted him of assault consummated by a battery relating to this
alleged kiss.

       A few days later on the Fourth of July, WO attended a pool party at another
nearby relative’s house. About 15 people attended the party, including WO’s
grandmother, the appellant, and the appellant’s wife. WO alleged that while she and the
appellant were in the pool, the appellant repeatedly dunked her and then grabbed her
breast while she was underwater. She stated that when she emerged from the water, she
loudly stated, “Shaun gave me a purple-nurple,” a statement that would have been
audible to at least two adults present. In response, WO testified, the appellant’s wife told
the appellant that this was inappropriate, and the appellant walked away without saying
anything.

       The prosecution’s evidence at trial centered on WO’s testimony; the defense
vigorously cross-examined her about inconsistencies between her account at trial and
previous statements she had given about the appellant’s alleged misconduct. The
government called two of WO’s family members to testify largely about other actions of
the appellant apart from the charged misconduct. The government did not call other
family members who were allegedly present during the charged actions.

                                    Factual Sufficiency

       We review issues of factual sufficiency de novo. United States v. Beatty, 64 M.J.
456, 459 (C.A.A.F. 2007).



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       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. Turner, 25 M.J. 324, 325 (C.M.A. 1987), quoted in United States v. Reed, 54 M.J. 37,
41 (C.A.A.F. 2000). 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.” United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). Our factual sufficiency determination is
limited to a review of the “entire record,” meaning evidence presented at trial. Reed,
54 M.J. at 43; United States v. Bethea, 46 C.M.R. 223, 225 (C.M.A. 1973).

       We have reviewed the record of trial and evaluated the arguments by the appellant
and the government. We have evaluated the entire record of trial, and have made
allowances for not having heard and observed the witnesses. Having done so, and having
considered the unique facts of this case on its merits, we are not personally convinced of
the appellant’s guilt of either specification of sexual abuse of a child.1

       It should go without saying that a court-martial is a most serious matter, and the
requirement for proof beyond a reasonable doubt plays a vital role in the legitimacy of
the military justice system. A “society that values the good name and freedom of every
individual should not condemn a man for commission of a crime when there is reasonable
doubt about his guilt.” In re Winshop, 397 U.S. 358, 363–64 (1970). In the military
justice system, where servicemembers accused at court-martial are denied some rights
provided to other citizens,2 our unique factfinding authority is a vital safeguard designed
to ensure that every conviction is supported by proof beyond a reasonable doubt. This
authority “provide[s] a source of structural integrity to ensure the protection of service
members’ rights within a system of military discipline and justice where commanders
themselves retain awesome and plenary authority.” United States v. Jenkins, 60 M.J. 27,
29 (C.A.A.F. 2004). Most cases reviewed by this court are deemed factually sufficient.
However, in this instance, we simply are not personally convinced that the appellant is
guilty of the charged offenses.




1
  In addition to the evidence directly concerning the charged misconduct, we acknowledge that the government
presented evidence concerning the appellant’s actions toward WO apart from the charged incidents and argued that
these actions demonstrated that the appellant had a sexual interest in WO. We find these matters add little to the
government’s case, and having considered these matters, we remain unconvinced of the appellant’s guilt.
2
  See, e.g., Ex parte Quirin, 317 U.S. 1, 40–41 (1942) (holding there is no constitutional right to a trial by jury in
courts-martial); O’Callahan v. Parker, 395 U.S. 258, 265 (1969) (recognizing differences between courts-martial
and civilian criminal proceedings and observing that “[a] court-martial is not yet an independent instrument of
justice but remains to a significant degree a specialized part of the overall mechanism by which military discipline is
preserved.”).


                                                          3                                           ACM S32218
                                Conclusion

The findings of guilty and the sentence are set aside and dismissed.



       FOR THE COURT


       STEVEN LUCAS
       Clerk of the Court




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