UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

F.D. MITCHELL, J.A. FISCHER, R.Q. WARD

Appellate Military Judges

UNITED STATES OF AMERICA

v.

ADAM C. TERRAL

LIEUTENANT (O-3), U.S. NAVY

NMCCA 201300273

GENERAL COURT-MARTIAL

Sentence Adjudged: 11 January 2013.

Military Judge: CAPT Colleen Glaser-Allen, JAGC, USN.

Convening Authority: Commander, Navy Region Mid-Atlantic, 

Norfolk, VA.

Staff Judge Advocate's Recommendation: CDR S.J. Gawronski, 

JAGC, USN.

For Appellant: LT Jessica Fickey, JAGC, USN.

For Appellee: CDR James Carsten, JAGC, USN; Maj David 

Roberts, USMC; LT Lindsay Geiselman, JAGC, USN.

30 October 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:

Members at a general court-martial convicted the appellant, 

contrary to his pleas, of violating a lawful order 

(fraternization) and wrongful sexual contact, in violation of 

Articles 92 and 120, Uniform Code of Military Justice, 10 U.S.C. 

§§ 892 and 920. The convening authority (CA) approved the 
2

adjudged sentence of confinement for one year and a dismissal 

and, except for the dismissal, ordered it executed.

On appeal, the appellant raises multiple assignments of 

error.1 We address three; legal and factual sufficiency of the 

wrongful sexual contact conviction, other acts evidence admitted 

under MILITARY RULE OF EVIDENCE 404(b), MANUAL FOR COURTS-MARTIAL, UNITED 

STATES (2012 ed.), and post-trial delay. After carefully 

considering the record of trial and the submissions of the 

parties, we are convinced 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

Married and 36 years old, the appellant, recently spot 

promoted to Lieutenant Commander, was the Chief Engineer aboard 

the USS OAKLEY HILL (LSD 51) at the time of his offenses. 

Ensign (ENS) SW, a recent arrival to the ship, was serving at 

the time as the Electrical Officer within the Engineering 

Department. 

 

1 (1) That the guilty finding for wrongful sexual contact is legally and 

factually insufficient; 

(2) That the military judge erred by admitting evidence under MILITARY RULE OF 

EVIDENCE 404(b), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2008 ed.); 

(3) That the military judge erred in denying the appellant’s request for 

production of a good military character witness;

(4) That unreasonable post-trial delay prejudiced the appellant;

(5) That the appearance of unlawful command influence tainted the CA in 

taking post-trial action; 

(6) That the military judge erred by denying the appellant’s request to admit 

evidence under MIL. R. EVID. 412; 

(7) That the military judge erred in denying production of evidence relating 

to a past relationship of the victim; and

(8) That trial defense counsel were ineffective. 

Assignments of error numbered (6) – (8) were raised pursuant to United States 

v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We have reviewed those assignments 

of error not addressed herein and find them without merit. United States v. 

Clifton, 35 M.J. 79 (C.M.A. 1992). 
3

On 24 January 2012, OAKLEY HILL was in port overnight at 

Yorktown, Virginia. That evening, the appellant accompanied ENS 

SW to the liberty bus and the two discussed ENS SW’s plans to go 

to the base club. Advising her that “he didn’t think it would 

be good for [her] to go out where [she] would only be around 

junior sailors”, the appellant instead invited her to accompany 

him to the movies. Record at 566. The two then left the 

liberty bus and the appellant drove them in his wife’s car to 

the movie theater.

After the movie ended, the appellant suggested that they 

get something to eat and the two went to a nearby fast food 

restaurant. While eating in the car, the appellant began 

talking about other female members of the crew and how she 

“seem[ed] like the only one that wouldn’t tell anyone else if 

something happened.” Id. at 572. He then asked her what she 

would do if “he took her to a dark place” and she replied, “I 

don’t know.” Id. After he made several other similar remarks, 

he drove to a nearby gas station. There he purchased two 

bottles of water and a box of condoms. On their way back to the 

ship, he pulled the car into a hotel parking lot. 

ENS SW testified at trial by this point it was late in the 

evening and she became afraid. Id. at 574. The appellant 

pulled out of the hotel parking lot and began slowly driving in 

the opposite direction away from the ship. He then reached over 

and put his hand on her knee and then proceeded to move his hand 

to her crotch and rubbed his fingers over her clothing. She 

then pushed his hand away and said, “I can’t.” Id. at 583. She 

then asked him “if he had ever done anything like this before”, 

to which the appellant described an earlier affair of his where 

“the woman had been the one that was confident [but] he wanted 

to be the confident one this time.” Id. at 584. Following this 

remark, the appellant said, “[y]ou always give a girl a second 

chance to say no.” Id. He then reached over, unbuckled her 

belt, placed his hand down her pants and touched her vagina. 

ENS SW testified that when he did this at first she “froze” 

not knowing what to do, and then pulled his hand away again and 

said, “I’m sorry. I can’t do this.” Id. at 584-85. The 

appellant said nothing in response at first. Then he asked 

“what [her] dilemma was” to which she responded “your wife.” 

Id. at 593. 

The appellant then continued driving in a direction away 

from the ship before pulling off the road and parking in a 

nearby wooded area. Next, he reached over and pulled her knees 
4

apart saying that “[he] need[ed] to be able to spread [her] legs 

wide because he’s a big guy” and then he placed his hand down 

her pants again touching her vagina. Id. at 604. He then 

pulled up her shirt and started kissing her breasts. As he 

started kissing her face, she briefly kissed him back. She 

explained at trial that she didn’t know what to do at this point 

and she didn’t know why she briefly kissed him. However, she 

then pretended to be asleep in an effort to get him to stop. 

Id. at 604-05. The appellant then stopped his advances and 

proceeded to drive back to the ship.

Legal and Factual Sufficiency

In his second assignment of error, the appellant asserts 

that the guilty finding for wrongful sexual contact is both 

legally and factually insufficient. 

We review questions of legal and factual sufficiency de 

novo. United States v. Winckelmann, 70 M.J. 403, 406 (C.A.A.F. 

2011). We review the legal sufficiency of the evidence by 

determining “whether, considering the evidence in the light most 

favorable to the prosecution, any reasonable fact-finder could 

have found all the essential elements beyond a reasonable 

doubt.” United States v. Day, 66 M.J. 172, 173-74 (C.A.A.F. 

2008) (citing United States v. Turner, 25 M.J. 324, 324 (C.M.A. 

1987)). The test for factual sufficiency is whether “after 

weighing all the evidence in the record of trial, this court is 

convinced of the appellant’s guilt beyond a reasonable doubt.” 

United States v. Rankin, 63 M.J. 552, 557 (N.M.Ct.Crim.App. 

2006) (citations omitted), aff’d, 64 M.J. 348 (C.A.A.F. 2007). 

The term “reasonable doubt” does not mean that the evidence 

must be free of any conflict. Id. And when weighing the 

credibility of a witness, this court, like a fact-finder at 

trial, examines whether discrepancies in witness testimony 

resulted from an innocent mistake such as a lapse of memory or a 

deliberate lie. United States. v. Goode, 54 M.J. 836, 844 

(N.M.Crim.Ct.App 2001). Additionally, the members may “believe 

one part of a witness’ testimony and disbelieve another.” 

United States v. Harris, 8 M.J. 52, 59 (C.M.A. 1979).

The appellant argues that ENS SW’s testimony lacked 

credibility because of her inconsistent statements and her 

motive to fabricate. Alternatively, he contends that the 

Government failed to prove beyond a reasonable doubt that 

consent or mistake of fact as to consent did not exist. 

Appellant’s Brief of 16 Sep 2013 at 10-15. We disagree. 
5

We note that at trial the Government offered and the 

military judge admitted evidence corroborating many of the 

details of ENS SW’s testimony. A ticket stub from the movie 

theater, the box of condoms purchased by the appellant and 

pictures of the various locations described by ENS SW were 

admitted into evidence. An investigating agent from Naval 

Criminal Investigative Service testified that surveillance video 

from the gas station displayed the appellant purchasing two 

bottles of water and a box of condoms. Record at 775-82. 

Even so, the appellant argues that instances of hesitancy 

described by ENS SW in her testimony rendered her account of 

unwanted and unwelcome sexual contact “unfeasible”. Appellant’s

Brief at 12. Furthermore, he argues that even at face value her 

testimony failed to demonstrate her unwillingness to engage in 

sexual contact sufficient to disprove a reasonable mistake of 

fact. Id. at 13-14. 

ENS SW described multiple instances of uninvited and 

unwelcome sexual contact. Twice she described how she pulled 

the appellant’s hand away from her body saying to him “I can’t.” 

Record at 583-85. Even faced with her unwillingness after the 

first instance, the appellant continued his aggressive and 

unwelcome advances commenting, “[y]ou always give a girl a 

second chance to say no.” Id. at 584. Despite the appellant’s 

assertions, we conclude that a reasonable fact finder could have 

found all elements of the offense beyond a reasonable doubt. 

Furthermore, we ourselves are convinced of the appellant’s guilt 

beyond a reasonable doubt.

Mil. R. Evid. 404(b)

At trial, the Government offered under MIL. R. EVID. 404(b) 

the testimony of LT HB, a female junior officer from OAKLEY 

HILL, and ENS SW’s roommate. LT HB testified that several 

months earlier the appellant made sexually suggestive comments 

suggesting that he wanted to pursue a sexual relationship with 

her that she described as “creepy” and making her 

“uncomfortable”. Id. at 534-38.

We review a military judge’s evidentiary rulings for an 

abuse of discretion. United States v. Thompson, 63 M.J. 228, 

230 (C.A.A.F. 2006). When a military judge balances the 

competing interests in admitting or excluding evidence, we will 

give great deference to a clearly articulated basis for the 

decision. United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 
6

2000). Conversely, when there is no such clearly articulated 

basis, we will be less deferential in our review. 

The three-part test for admitting evidence under MIL. R. 

EVID. 404(b) is set forth in United States v. Reynolds, 29 M.J. 

105, 109 (C.M.A. 1989). First, the evidence must reasonably 

support a finding that the appellant committed prior crimes, 

wrongs or acts. Second, the evidence must show a fact of 

consequence is made more or less probable by the existence of 

this evidence. Third, the probative value of the evidence must 

not be substantially outweighed by the danger of unfair 

prejudice. Id.; see also United States v. Barnett, 63 M.J. 388, 

394 (C.A.A.F. 2006). 

In her ruling, the military judge found that the 

appellant’s sexually suggestive comments toward LT HB occurring 

approximately four months before the charged offenses were 

relevant “to establish the [appellant’s] state of mind, intent, 

modus operandi, and/or motive”, and demonstrated his 

“willingness to engage in inappropriate conduct with female 

wardroom members and his desire for a relationship with someone 

other than his wife to gratify his sexual desires.” Appellate

Exhibit XXXVII at 4-5. Further, the military judge concluded 

that the evidence’s probative value was not substantially 

outweighed by the danger of unfair prejudice particularly when 

coupled with an appropriate limiting instruction. Id.

2 

The appellant argues that the military judge erred in 

applying the second Reynolds prong because, unlike ENS SM, LT HB 

was a peer of the appellant’s,3 and “just because a man is 

romantically interested in one female does not mean he would 

sexually assault another.” Appellant’s Brief at 20. Further, 

he argues that such evidence had no logical bearing on consent 

or mistake of fact as to consent. Id. at 19-20.

At trial, the main thrust of the defense case was that ENS 

SW either was lying in that the sexual contact did not occur, or 

that any contact was consensual or the result of an honest and 

reasonable mistake. We conclude, as did the military judge, 

that evidence of the appellant’s willingness and desire to make 

unwelcome and sexually suggestive overtures toward another 

female officer in the wardroom close in proximity to the charged 

 

2 The military judge provided a limiting instruction following LT HB’s 

testimony and again during instructions on findings. Record at 557; 847-48.

3 The encounters described by LT HB occurred prior to the appellant’s spot 

promotion to lieutenant commander.
7

offenses was probative of his intent and desire to engage in 

sexual conduct with ENS SW. First, his comments toward LT HB 

bore the same sexually suggestive overtones as his comments 

toward ENS SW. Second, in both instances the appellant alluded 

to sexual dissatisfaction in his marriage and, by implication, a 

desire to pursue a sexual relationship outside his marriage. 

Finally, we note the detailed limiting instruction provided by 

the military judge to the panel on the appropriate use of this 

evidence. Consequently, we conclude that the military judge did 

not err in admitting this evidence.

Unreasonable Post-Trial Delay

In his fourth assignment of error, the appellant argues 

that he was prejudiced by unreasonable post-trial processing 

delay in that the CA did not take action until 178 days after 

trial, exceeding the 120-day rebuttable presumption established 

by United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). 

Appellant’s Brief at 28. Although the appellant does not cite 

any prejudice resulting from this 58-day delay, he argues that 

we should grant sentence relief under our Article 66(c)

statutory charter. We review his claim de novo. Moreno, 63 

M.J. at 135. 

In reviewing due process claims over speedy post-trial 

review, we evaluate the “(1) length of the delay; (2) the 

reasons for the delay; (3) the appellant’s assertion of the 

right to timely review and appeal; and (4) prejudice.” Id. 

(citations omitted). No one factor is determinative and we 

decide whether each factor favors the Government or the 

appellant. Id. at 136. The presumption of unreasonableness can 

be overcome by a showing of legitimate, case specific 

circumstances. Id. at 143; see also United States v. Arriaga, 

70 M.J. 51, 56-57 (C.A.A.F 2011). 

Here, the appellant correctly notes that the length of the 

delay, 178 days, triggers a due process inquiry under Barker v. 

Wingo, 407 U.S. 514, 530 (1972). Moreno, 63 M.J. at 136. We 

next turn our attention to the reasons for the delay.

Other than two periods of delay explained below, the 

remainder of the post-trial processing is unremarkable. It 

appears that the record of trial initially took approximately 67 

days to prepare and forward to the military judge for review. 

The military judge then returned the record for correction 

approximately 49 days later. See Commander, Navy Region MidAtlantic ltr 5800 00L/790 of 8 Jul 13. The CA cites the 
8

unavailability of the military judge to authenticate the record 

of trial due to a crowded docket. See id. An additional 36 

days lapsed before the corrected record was returned to the 

military judge for authentication. Id. While the delay in 

preparing the record and the military judge’s unavailability are 

not model excuses for delay, we do not find these periods either 

collectively or individually to be facially unreasonable within 

the meaning of Moreno considering the size of the record and the 

numerous sealed portions of the transcript and exhibits. 

Therefore, this factor weighs only slightly in favor of the 

appellant. 

Next, we examine whether the appellant objected to the 

delay or otherwise asserted his right to timely review. 

Arriaga, 70 M.J. at 57. We find that he did not. However, 

because the obligation to ensure a timely post-trial process 

ultimately rests with the Government, this factor only slightly 

weighs against the appellant. See id. 

On the fourth factor, prejudice, we balance three 

interests: (1) prevention of oppressive incarceration; (2) 

minimization of anxiety and concern of those awaiting the 

outcome of their appeals; and, (3) limitation of the possibility 

that a convicted person’s grounds for appeal, and his defense --

in the event of reversal and retrial -- might be impaired by the 

delay. Moreno, 63 M.J. at 138-41. In reviewing these factors, 

we conclude that the appellant has failed to meet his burden of 

establishing prejudice. We next consider whether this is an 

appropriate case to exercise our authority to grant relief under 

Article 66(c). Toohey v. United States, 60 M.J. 100, 101-02 

(C.A.A.F. 2004). Having done so, we find the post-trial 

processing delay does not affect the findings or the sentence 

that should be approved in this case. Accordingly, we decline 

to grant relief. 

Conclusion

The findings and the sentence as approved by the CA are 

affirmed. 

For the Court

 

 

 

R.H. TROIDL

Clerk of Court