CORRECTED COPY



## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, FEBBO, and WOLFE Appellate Military Judges

UNITED STATES, Appellee

v. Staff Sergeant H ECTOR NICOLA

United States Army, Appellant

ARMY 20150781

Headquarters, 2d Infant ry Division and Repub lic of Korea-United States Combined

Division Tiernan P. Dolan, Military Judge

Lieutenant Colonel Tim othy P. Hayes, Jr., Staff Judge Advocate

For Appellant: Lieutenant Colone l Christopher D. Carrier, JA; Major Christopher D. Coleman, JA; Captain C ody Cheek, JA (on bri ef); Lieutenant Colo nel Christopher D. Carrier, JA; Major Julie Borche rs, JA; Captain C ody Cheek, JA ( on reply brief).

For Appellee: Colonel Tania M. Martin, JA; Lieutenant Colonel Eric K. Stafford, JA; Captain Joshua B. Banister, JA (on brief).

28 March 2018

---------------------------------- MEMORANDUM OPINION

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

This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent. 1

MULLIGAN, Senior Judge:

An officer panel sittin g as a general court- martial convicted a ppellant, contrary to his pleas, of one specification of violating a lawf ul general regulation, one specification of a busive sexual contact , and one specificat ion of indecent viewing, in violation of Articles 92, 120, and 120c, Uniform Co de of Military Justice (UCMJ), 10 U. S.C. §§ 892, 920, 920c (2012 & Supp. I). The panel acquitted

1 Corrected.NICOLA—ARMY 20150781

2 appellant of one specification of sexual assault in violation o f Article 120, UCMJ. The convening authority approve d the adju dged sentence to a bad -conduct discharge and reduction to the grade of E-1.

Appellant’s case is before this court for review under Article 66, UCMJ. Appellant raises four assignments of error. Only the error reg arding the legal and factual sufficiency of the Specification of Charge I merits dis cussion. It also merits

relief. 2

BACKGROUND

At the end of Septembe r, 2014 appellant wa s stationed at Camp Casey, South Korea when Specialist (SPC) AA a rrived to h er new duty station, Camp Hovey, South Korea. On Friday night, 10 October 2014, appellant was a t a “smoke pit,” outside a barracks playing a drin king game with other soldiers. Specialist AA was

2 Appellant’s second ass ignment of error is mooted by our decisi on with respect to the legal and factual sufficiency of the Specification of Charg e I.

Appellant’s third as signment of error ass erts a hearing pursuan t to United States v. Dubay , 17 U.S.C.M.A 147, 37 C.M.R. 41 1 (1967), is nece ssary to deter mine whether the panel contained interlopers . All of the panel members that sat on appellant’s court-martial were personally sel ected by the conv ening authori ty to serve as panel

members. See Def. App. Ex. B; see also UCMJ, art 25(d). The defense has not proffered any evidence to suggest that the other procedures of selection of the courtmartial panel in appellant’s spe cific case were not followed an d therefore were not

at the command of the c onvening authority pu rsuant to his prior approved selection procedures. See Def. App. Ex. A. Further more, the error with respect to CW5 AW R was both affirmatively remedied at trial by the government and subsequently waived by the defense.

Appellant’s last assig nment of error asserts the evidence is bo th legally and factually

insufficient to s upport a conviction fo r wrongfully viewing SPC AA’s private area, as appellant was acquitted of se xual assault. We see nothing i nconsistent with the panel acquitting appell ant of sexually assa ulting SPC AA while at the same time convicting appellant of wrongfully viewing SPC AA based on her testimony of appellant being in the shower with her. See United States v. Rosario , 76 M.J. 114, 117-18 (C.A.A.F. 2017).

We have also fully con sidered each of the issues personally rai sed by appellant

pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and have determined they merit neither discussion nor relief.NICOLA—ARMY 20150781

3 in her room doing homework when s he decided to tak e a smoke bre ak. Specialist AA joined the game a nd lost, drinking a total of f our beers.

After the game ended, the group went off-post to several bars. At the first bar appellant gave SPC AA three shot s of tequila, which she drank. She started to feel dizzy and stepped outs ide to get some fres h air. The group cam e with her and they then decided to go to another bar. Specia list AA drank at the second bar, but had no

recollection of how m uch or what she dra nk. At some point, app ellant told SPC AA she needed to go back to her barrack s room and indicated she wa s drunk. Appellant then escorted SPC AA outside, i solating her from the group.

Specialist AA was di zzy and nauseous. Appe llant had his arm a round her

waist and walked her down the street to an alleyway. Appellant leaned her up against a wall, tried to kiss h er, and then put his hand down t he inside of h er pants. Appellant’s hand was over the t op of SPC AA’s und erwear, rubbin g her genitals in a circular motion. Specialist AA fe lt appellant’s erect penis pr essed against her thigh. Specialist AA told h im to stop and vomited . She continued vomi ting on the

sidewalk while on h er hands and knees.

Appellant arranged for a taxi and took SPC AA back to her barr acks. Specialist AA was in a drunken stupor. Appellant and a female soldier, Private First Class (PFC) Long, gave SPC AA some crackers and water outside t he barracks. Specialist AA threw up again. A ppellant testifie d at trial tha t he had never seen anyone as drunk as S PC AA was that eveni ng. SPC AA could not w alk straight and appellant guided her back to her room with PFC Long following b ehind them. Appellant laid SPC AA in her be d, fully clothed, with her shoes on. PFC Long told appellant they should leave, but appellant insis ted on staying to ensure SPC AA was alright. Eventually, PFC Long left appella nt in SPC AA’s room and told appellant

she would be back in about fifteen minutes.

Within an hour PFC Long returned to SPC AA’s room with another female, lower-enlisted soldier. They heard running water in SPC AA’s r oom and knocked on

the door. There was no response, so PFC L ong knocked harder. No one answered the door. They went to the char ge of quarters d esk to get the master key to SPC

AA’s room and also w oke SPC AA’s platoon sergeant, who was male . All three

soldiers arrived in the hallway outside SPC AA’s door. Appella nt opened the door. Appellant was on the phone and was eventua lly told to leave bec ause SPC AA’s platoon sergeant wa s there to assist. Appellant left.

The water in SPC’s AA’s shower was running and SPC Long checke d on SPC AA. She found SPC AA lying naked i n the fetal po sition on the shower floor, letting

the water hit her.NICOLA—ARMY 20150781

4 Specialist AA had no memory of a rriving back at the barracks. At trial, she testified the next thing she remembered was being naked in the shower. She testified appe llant was naked in the s hower with her and forced his penis in her mouth. Appellant was acq uitted of thi s charge.

LAW AND DISCUSSION

Appellant asserts his convicti on of violating p ara. 4-14b of Ar my Regulation (AR) 600-20, Army Command Policy (p rohibiting relationships bet ween soldiers of different ranks) is legally and factually insufficient because SPC AA was incapable of consenting to a rel ationship at the time of the charged acts

. 3 The government agrees, but counters the law and facts support an attempted vio lation of the regulation. We disagree.

For more than a decade our case law has held “th e victim’s cond uct is relevant to whether or not a prohibited re lationship was established” fo r purposes of violating the prohibited relationship provisions of AR 600-20. United States v. Morgan

, ARMY 20000928, 2004 CCA L EXIS 423, at *7 (Ar my Ct. Crim. App. 2 0 Feb. 2004) (mem. op.). Our case law is clear , it takes two to form a rela tionship. United States

v. Oramas , ARMY 20051168, 2007 CCA LEXIS 588, at *6-8 (Army Ct. Crim. Ap p. 29 Mar. 2007) (mem . op.) (holding a solicita tion to en gage in s exual acts does not

amount to a relationsh ip as envisioned by AR 600-20 when the ve rbal advance was rejected); United States v. Patrick , ARMY 20130761, 2015 CCA LEXIS 129, at * 5- 6 (Army Ct. Crim. App. 24 Mar. 20 15) (summ. disp .) (holding a p lea to wrongfully engaging in a prohibited relationship improvident where the app ellant’s advances were rejected, but affi rming the lesser-inc luded offense of att empt); United States v. Delgado , ARMY 20140927, 2016 CCA LEXIS 7, at *5, 7 (Army Ct. Crim. App . 6 Jan. 2016) (mem. op.) (holding whi le the evidence supported a p rohibited relationship through an assortment of acts, the only charged ac t of a non-c onsensual

sexual assault could not form th e basis to estab lish a consensu al inappropriate relationship); United States v. Birdsong , ARMY 20140887, 2016 CCA LEXIS 434, at *6 (Army Ct. Crim. App. 8 Jul . 2016) (summ. di sp.) (holding a plea to wrongfully engaging in a prohibited relationship improvident where the app ellant’s advances were rejected, but affi rming the lesser-inc luded offense of att empt); United States v. Huertalopez , ARMY 20150059, 2017 CCA LEXIS 30, at * 4 (Army Ct. Crim. App. 19 Jan. 2017) (summ. dis p.) (holding a prohibited relationship could not be formed where the victim declined the advances, but affirming the lesse r-included offense of an attempt based on t he advances). While a relationship can be coercive,

3 Appellant was charged with viol ating the regula tion by “enteri ng [SPC AA’s]

barracks room alone with her while she w as highly intoxicated a nd remaining inside alone with her for approximately one hour without a professiona l purpose.”NICOLA—ARMY 20150781

5 manipulative, and need not be “co nsensual” as that term is gene rally unders tood, one

cannot form a “relati onship” with an unconscious or incapacitat ed person.

The government concedes the evide nce at trial showed SPC AA fir st rebuffed appellant’s advances and was the n incapable of c onsenting becau se of impairment by alcohol. These facts legally precluded the formation of a proh ibited relationship at the time appellant entered SPC AA’s barracks room and remained therein. The

government assert s, however, appe llant’s acts of entering and r emaining in SPC AA’s room for an extended peri od of time constitu ted the overt acts of an attempted violation of the regulation.

To affirm the lesser-included of fense of attempt we must find: (1) that appellant did a cert ain overt act; (2) that the act was done wi th the specific intent to violate the prohib ited relationship pro visions of AR 600-20, para. 4-14b; (3) that

the act amounted to more than mer e preparation; a nd (4) that th e act apparently

tended to effect the commissi on of the intended offense. Manual for CourtsMartial , pt. IV, ¶ 4.b. While we agree that entering and remaining in another’s

barracks room concei vably could constitute substantial steps to ward an attempted

violation of AR 600- 20, we are not ourselves convinced the acts in this case were done with the specific intent to engage in a prohibited relatio nship. 4

There is substan tial evidence in the ca se to support both SPC A A was in a drunken stupor upon a rriving back to her b arracks and appellant was well aware of

this fact. Acco rding to SPC AA’s test imony appellant remained in the room and sexually assaulted her in the s hower. Although a cquitted of th is conduct, we see nothing in the ev idence presented to indi cate appellant’s speci fic intent while entering and remainin g in the room w as anything other than to u ndress and shower naked with an incapac itated individual. A ppellant was already aware SPC AA had vomited multiple times, could barely walk on h er own, and was i ncapable of

4 The standard of review for fact ual and legal sufficiency by thi s Court is de novo. United States v. Beatty , 64 M.J. 456, 459 (C.A.A.F. 2007); United States v. Craion

, 64 M.J. 531, 534 (Arm y Ct. Crim. App. 2006). In resolving ques tions of legal sufficiency, this cour t is “bound to draw e very reasonable infe rence from the evidence of record in favor of the prosecution.” Craion , 64 M.J. a t 534. In weighing factual sufficiency, we apply “neither a presumption o f innocence nor a presumption of guilt,” and we make an “independent determinatio n as to whether the

evidence constitu tes proof of each requir ed element beyond a re asonable doubt.”

United States v. Washington , 57 M.J. 394, 399 (C.A.A.F. 2002).NICOLA—ARMY 20150781

6 consenting. 5 Conversely, appellant’s defense relied on the acts having nev er occurred. Accord ing to appellant’s tes timony he had never seen anyone as drunk as SPC AA was that evening and his i ntention in stay ing in the roo m was to ensure SPC AA was alright. Under either version of eve nts, appellant was well aware that SPC AA was incapable of consenting to any type of relationship.

As such, we decline th e government’s invita tion to affirm the l esser-included offense of attempt and grant app ropriate relief in our decretal paragraph.

CONCLUSION

The findings of guilty of Charge I and its Specification are se t aside and dismissed with preju dice. The remaining f indings of guilty are AFFIRMED.

We are able to reasse ss the sentence on the basis of the error noted and do so after conducting a thorough a nalysis of the tot ality of circums tances presented by appellant’s case and i n accordance with the principles articula ted by our superior

court in United States v. Winckelmann , 73 M.J. 11, 15-16 ( C.A.A.F. 2013) and

United States v. Sales , 22 M.J. 305 (C.M.A. 19 86). We are confid ent that b ased on the entire record and appellant’ s course of con duct, he would h ave been sentenced to at least that which was adjudge d, and accordingl y we AFFIRM the sentence.

Judge FEBBO and Judge WOLFE concur.

FOR THE COURT:

5 To be clear, we do not hold that it is a le gal impossibility f or an accused to be

convicted of both sexual assault and entering into or attemptin g to enter into a prohibited relationship. However, the facts in t his case are i nsufficient for us to do

so. JOHN P. TAITT Acting Clerk of Court FOR THE COURT: