UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

MULLIGAN, HERRING, and BURTON 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

First Lieutenant JAMES G. DONOHUE 

United States Army, Appellant 

ARMY 20140124 

Headquarters, III Corps and Fort Hood 

Rebecca K. Connally, Military Judge 

Colonel Stuart W. Risch, Staff Judge Advocate (pretrial) 

Colonel Ian G. Corey, Staff Judge Advocate (post-trial) 

For Appellant: Captain Jennifer K. Beerman, JA; Zachary D. Spilman, Esquire (on 

brief). 

For Appellee: Colonel Mark H. Sydenham, JA; Major Daniel D. Derner, JA; Captain 

Timothy C. Donahue, JA (on brief). 

30 June 2016 

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SUMMARY DISPOSITION 

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Per Curiam: 

An officer panel sitting as a general court-martial convicted appellant, 

contrary to his pleas, of one specification of abusive sexual contact, one 

specification of wrongful sexual contact, one specification of indecent acts, and one 

specification of conduct unbecoming an officer and a gentleman, in violation of 

Articles 120 and 133 Uniform Code of Military Justice, 10 U.S.C. §§ 920, 933 (2006 

& Supp. IV) [hereinafter UCMJ]. The panel sentenced appellant to a dismissal and 

twenty-four months confinement. The convening authority approved the findings 

and sentence as adjudged. 
DONOHUE-ARMY 20140124 

2

This case is before us for review pursuant to Article 66, UCMJ. Appellant 

raises fifteen assignments of error, three of which require discussion and relief.1

 

Appellant alleges the military judge committed error by merging for sentencing, 

rather than dismissing, specifications charged in the alternative. Further, the 

appellant challenges the legal and factual sufficiency of his conviction for 

committing an indecent act. We find that both these arguments have merit and grant 

appropriate relief in our decretal paragraph. Appellant also asks this court to 

provide relief to remedy the dilatory post-trial processing of his case. We agree that 

relief is appropriate and reduce the approved sentence to confinement in our decretal 

paragraph. 

BACKGROUND 

Appellant and two other Army officers, JM and LH, rented a private home 

near Killeen, Texas. Each officer had a private bedroom and shared the common 

areas of the home. They had all been friends while deployed to Iraq and had decided 

to share an off-post residence upon their return to the United States. One evening in 

late January 2011, all three officers went out to dinner and had some drinks. Upon 

returning to the house they all shared, they began to watch a movie on television. 

JM had several more beers and fell asleep in the recliner. At one point in the 

evening LH excused himself as he had an early flight to the National Training Center 

the next morning and he retired to his bedroom. The appellant was on the couch and 

JM was still asleep in the reclining chair. 

 Sometime after LH left the room, the appellant moved near the reclining 

chair where JM was asleep and began to rub JM’s penis. This activity stopped when 

JM awoke and yelled at the appellant. JM followed appellant out into the back yard 

of the home where he continued to yell at appellant and began to strike him. LH was 

awakened by this commotion, left his bedroom, and found appellant crying in the 

back yard. LH did not observe any of the activity that occurred in the living room 

after he left the room approximately an hour earlier. 

ALTERNATIVE CHARGING 

It is clear from the record that Specification 3 of Charge I, abusive sexual 

contact, and Specification 4 of Charge I, wrongful sexual contact, were charged in 

the alternative.2

 Our superior court has unambiguously stated that when 

 

1

 The assignments of error personally raised by appellant pursuant to United States 

v. Grostefon, 12 M.J. 431 (C.M.A. 1982), are without merit. 

2 The Government concedes this point, as well as the appropriateness of dismissing 

Specification 4 of Charge I, in its brief. 
DONOHUE-ARMY 20140124 

3

specifications are charged in the alternative for exigencies of proof and a panel 

returns guilty findings for both, the military judge must either “consolidate or 

dismiss a specification.” United States v. Elespuru, 73 M.J. 326, 329 (C.A.A.F. 

2014). Accordingly, we will grant appropriate relief and dismiss Specification 4 of 

Charge I. 

LEGAL SUFFICIENCY OF INDECENT ACT 

Among other charges the panel found appellant guilty of Specification 5 of 

Charge I, in violation of Article 120, UCMJ, which alleged: 

In that [appellant], did, at or near Killeen, Texas, between 

on or about 10 January 2011 and on or about 1 February 

2011, wrongfully commit indecent conduct, to wit: touch 

the exposed penis of [1LT JM] with his hand, while 

another person was in a separate room that could have 

came [sic] into the room and witnessed the conduct by 

[appellant]. 

The touching alleged in this specification is the same act that forms the basis for 

Specification 3 of Charge I, abusive sexual contact. Appellant was also found guilty 

of that specification. It is clear from the wording of the specification and the facts 

in this case that the basis for criminality is the presence of the third roommate, LH, 

in the house at the time of the sexual activity.3

In accordance with Article 66(c), UCMJ, we review issues of legal 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. Turner, 25 M.J. 324 

(C.M.A. 1987); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979); United 

States v. Humphreys, 57 M.J. 83, 94 (C.A.A.F. 2002). In resolving questions of 

legal sufficiency, we are “bound to draw every reasonable inference from the 

 

3

 The Government argues in its brief that the case law interpreting “open and 

notorious” indecent acts only involves consensual sexual activity, and we should not 

apply it to the present case as it involves nonconsensual sexual activity. The 

Government fails to recognize that the only way this specification can stand as a 

separate offense is if we find it indecent due to its allegedly open and notorious 

nature. If the Government theory were to be that this conduct is indecent because it 

is nonconsensual, then it would be a lesser included offense of the abusive sexual 

contact specification (Specification 3 of Charge I). 
DONOHUE-ARMY 20140124 

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evidence of record in favor of the prosecution.” United States v. Barner, 56 M.J. 

131, 134 (C.A.A.F. 2001). 

The fact that appellant touched the penis of JM with his hand is not in dispute. 

The appellant admitted this conduct in his statement to the police and his testimony 

at trial. It is also beyond dispute that the third roommate, LH was present in the 

house at the time. However, this analysis does not end our inquiry. The home 

where the crime occurred was a private residence. All three officers agreed to rent 

and occupy the home together. According to a diagram of the home admitted at 

trial, the bedroom occupied by LH was located so that it did not have direct access 

to the living room. Rather, LH would have to leave his bedroom, go down a short 

hallway and enter the kitchen before he could possibly view any activity taking 

place in the living room. LH did not view any of the activity and was unaware that 

anything was occurring until he heard JM and the appellant yelling. Under these 

circumstances there is not sufficient evidence, as a matter of law, of the open and 

notorious nature of the sexual conduct to sustain a finding of guilty of committing 

an indecent act. United States v. Izquierdo, 51 M.J. 421, 423 (C.A.A.F. 1999); see 

also United States v. Berry, 6 U.S.C.M.A. 609, 614 20 C.M.R. 325, 330 (1956). 

POST-TRIAL DELAY 

The convening authority took action 381 days after the conclusion of 

appellant’s court-martial. Of that delay, 354 days are attributable to the 

government. The record in this case consists of thirteen volumes, and the trial 

transcript is 1,252 pages. Although we find no due process violation in the post-trial 

processing of appellant’s case, we must still review the appropriateness of the 

sentence in light of the unjustified dilatory post-trial processing. UCMJ art. 66(c); 

United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002) (“[Pursuant to Article 

66(c), UCMJ, service courts are] required to determine what findings and sentence 

‘should be approved,’ based on all the facts and circumstances reflected in the 

record, including the unexplained and unreasonable post-trial delay.”). See 

generally United States v. Toohey, 63 M.J. 353, 362-63 (C.A.A.F. 2006); United 

States v. Ney, 68 M.J. 613, 617 (Army Ct. Crim. App. 2010); United States v. 

Collazo, 53 M.J. 721, 727 (Army Ct. Crim. App. 2000). 

The government has not provided any explanation for the lengthy post-trial 

delay in processing this case. The delay between announcement of sentence and 

action is simply too long, and could “adversely affect the public’s perception of the 

fairness and integrity of military justice system . . . .” Ney, 68 M.J. at 617. Thus, 

we find relief in the form of a thirty-day reduction as to the sentence to confinement 

is appropriate under the facts of this case. 
DONOHUE-ARMY 20140124 

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CONCLUSION 

The findings of guilty of Specifications 4 and 5 of Charge I are set aside and 

those specifications are DISMISSED. The remaining findings of guilty are 

AFFIRMED. 

We are able to reassess the sentence on the basis of the errors noted and do so 

after conducting a thorough analysis of the totality of circumstances presented by 

appellant’s case and in accordance with the principles articulated by our superior 

court in United States v. Sales, 22 M.J. 305 (C.M.A. 1986) and United States v. 

Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013). In evaluating the Winckelmann

factors, we first find there is a change in the penalty landscape as the potential 

maximum sentence to confinement is reduced from thirteen years to eight years.4 

Second, the appellant chose sentencing by an officer panel. Third, we find the 

remaining offenses capture the gravamen of appellant’s criminal conduct which, 

ultimately, stemmed from the same act. Finally, based on our experience as judges 

on this court, we are familiar with the remaining offenses so that we may reliably 

determine what sentence would have been imposed at trial. We are confident that 

based on the entire record and appellant’s course of conduct, the panel would have 

imposed a sentence of at least a dismissal and twenty-one months confinement. We 

find this reassessed sentence is not only purged of any error but is also appropriate. 

Having conducted this reassessment and considering the dilatory post-trial 

processing, we AFFIRM only so much of the sentence as provides for confinement 

for twenty months and dismissal from the service. 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. 58a(b), 58b(c), and 75(a). 

FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

 

4

 The military judge instructed the panel to treat Specifications 3 (abusive sexual 

contact) and Specification 4 (wrongful sexual contact) of Charge I as one offense for 

sentencing; thus the maximum punishment to confinement is only reduced by five 

years due to the dismissal of Specification 5 (indecent act) of Charge I. 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: