## UNITED STATES ARMY COUR T 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 Co rps and Fort Hood

Rebecca K. Connally, Military Judge Colonel Stuart W. Risch, Sta ff Judge Advocate (pretrial) Colonel Ian G. Corey, Staff Judge Advocate (post-trial)

For Appellant: Captain Jennif er K. Beerman, JA; Zachar y 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

---------------------------------- SUMMARY DISPOSITION

----------------------------------

Per Curiam:

An officer panel sitting as a general court-martia l convicted appellant, contrary to his pl eas, of one specification of abusive sexual contact, one specification of wrongful sexual contact, on e specification of in decent acts, and one specification of conduct unbe coming an officer and a ge ntleman, in violation of

Articles 120 and 133 Uniform Code of Military Justice, 10 U.S.C. §§ 920, 933 (2006 & Supp. IV) [hereinafter UCMJ]. The pane l sentenced appellant to a dismissal and twenty-four months confinem ent. The convening aut hority approved the findings and sentence as adjudged.DONOHUE-ARMY 20140124

2 This case is before us for review pursuant to Ar ticle 66, UCMJ. Appellant raises fifteen assignments of error, three of which require discussion and relief. 1
Appellant alleges the military judge committed erro r by merging for sentencing, rather than dismissing, specifications char ged in the alternativ e. Further, the appellant challenges the le gal and factual sufficiency of his conv iction for committing an indecent act. We find that both these arguments have merit and grant appropriate relief in our decretal paragr aph. Appellant also asks this court to provide relief to remedy the di latory post-trial pr ocessing of his case . We agree that relief is appropriate and re duce 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 bedr oom and shared the common

areas of the home. Th ey had all been friends while de ployed to Iraq and had decided to share an off-post residence upon their retu rn to the United Stat es. One ev ening in late January 2011, all three officers went out to dinner and had some drinks. Upon returning to the hous e they all shared, th ey began to watch a movie on television.

JM had several more b eers and fell asleep in the re cliner. At one point in the evening LH excused himself as he had an earl y flight to the Nation al Training Center the next morning and he reti red to his bedroom. The ap pellant 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 asle ep and began to rub JM’s penis. This activity stopped when JM awoke and yelled at the appellant. JM fo llowed appellant out into the back yard

of the home where he co ntinued to yell at a ppellant and began to st rike him. LH was awakened by this commotion, left his bedroom, and found appell ant crying in the back yard. LH did not observ e any of the activity that occurred in the living room after he left the room appr oximately an hour earlier.

ALTERNATIVE CHARGING

It is clear from the record that Specif ication 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 un ambiguously stated that when

1 The assignments of erro r 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 we ll as the appropriat eness of dismissing Specification 4 of Char ge I, in its brief.DONOHUE-ARMY 20140124

3 specifications are charged in the alterna tive for exigencies of proof and a panel returns guilty findings for both, the milit ary judge must eith er “consolidate or dismiss a specification.” United States v. Elespuru, 73 M.J. 326, 329 (C.A.A.F. 2014). Accordingl y, we will grant appropr iate relief and dismiss Specification 4 of Charge I.

LEGAL SUFFICIENCY OF INDECENT ACT

Among other charges th e panel found appellant guilt y of Specification 5 of Charge I, in violat ion of Article 120, UC MJ, which alleged:

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

on or about 10 Janua ry 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 a nd witnessed th e 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. A ppellant was also found guilty of that specification. It is clear from the wording of the specification and the facts

in this case that th e 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, consid ering the evidence in the light most favorable to the pros ecution, a reasonable factfinder could have found all the essential elements bey ond 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 th at 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 invol ves nonconsensual sexual activity. The

Government fails to recognize that the only way th is specification can stand as a separate offense is if we find it indecent due to its allegedly open and notorious

nature. If the Go vernment theory were to be that this conduct is indecent because it is nonconsensual, then it woul d be a lesser included offe nse of the abusive sexual contact specification (Speci fication 3 of Charge I).DONOHUE-ARMY 20140124

4 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 co nduct in his statement to the police and his testimony

at trial. It is al so beyond dispute that the third roommate, LH was present in the house at the time. However, this analys is does not end our inquiry. The home where the crime occurred was a private reside nce. All three office rs 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. Rath er, LH would have to leav e his bedroom, go down a short hallway and enter the kitchen before he co uld possibly view any activity taking place in the living ro om. LH did not view any of th e activity and was unaware that anything was occurring until he heard JM and the appe llant yelling. Under these

circumstances there is not sufficient eviden ce, as a matter of la w, 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 pa ges. Although we find no due pr ocess violation in the post-trial processing of appellant’s ca se, we must still review the appropriateness of the sentence in light of the unju stified dilatory post -trial processing. UCMJ art. 66(c); United States v. Tardif , 57 M.J. 219, 224 (C.A.A.F. 2 002) (“[Pursuant to Article 66(c), UCMJ, service courts ar e] required to determine what findings and sentence ‘should be approved,’ based on all the facts and circumstance s reflected in the record, includi ng the unexplained and unreasonable po st-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 (Arm y Ct. Crim. App. 2010); United States v.
Collazo , 53 M.J. 721, 727 (Army Ct. Crim. App. 2000).

The government has not prov ided any explanation for the lengthy post-trial delay in processing this ca se. The delay between ann ouncement of sentence and action is simply too long, and could “adverse ly affect the public’s perception of the fairness and integrit y of military justic e system . . . .” Ney , 68 M.J. at 617. Thus,

we find relief in the form of a thirty-day reducti on as to the senten ce to confinement is appropriate under th e facts of this case.DONOHUE-ARMY 20140124

5 CONCLUSION

The findings of guilty of Specifications 4 an d 5 of Charge I are set aside and those specifications are DISMISSED. Th e remaining findings of guilty are

AFFIRMED.

We are able to reassess the sentence on the basis of th e errors noted and do so after conducting a thorough analysis of the totality of circ umstances presented by appellant’s case and in accordance with th e principles articulat ed 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 ther e is a change in the penalty landscape as the potential

maximum sentence to confinement is redu ced 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 crimin al conduct which, ultimately, stemmed from the same act. Finall y, based on ou r experience as judges on this court, we are familiar with the re maining offenses so th at we may reliably

determine what sentence woul d have been imposed at tria l. We are confident that based on the entire record and appellant’s course of conduct, the panel would have imposed a sentence of at le ast 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 th is reassessment a nd considering the di latory post-trial processing, we AFFIRM only so much of the sentence as provides for confinement for twenty months and dism issal from the service. All rights, privileges, and property, of which ap pellant has been depr ived by virtue of that portion of the findings and sentence se t 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 sexua l contact) of Charge I as one offense for sentencing; thus the maximu m punishment to confinement is only reduced by five years due to the dismissal of Specification 5 (indece nt act) of Charge I. MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: