CORRECTED COPY 

UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

MULLIGAN, FEBBO, and WOLFE 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Staff Sergeant HECTOR NICOLA 

United States Army, Appellant 

ARMY 20150781 

Headquarters, 2d Infantry Division and Republic of Korea-United States Combined 

Division 

Tiernan P. Dolan, Military Judge 

Lieutenant Colonel Timothy P. Hayes, Jr., Staff Judge Advocate 

For Appellant: Lieutenant Colonel Christopher D. Carrier, JA; Major Christopher D. 

Coleman, JA; Captain Cody Cheek, JA (on brief); Lieutenant Colonel Christopher D. 

Carrier, JA; Major Julie Borchers, JA; Captain Cody 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 

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.1

MULLIGAN, Senior Judge: 

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

contrary to his pleas, of one specification of violating a lawful general regulation, 

one specification of abusive sexual contact, and one specification of indecent 

viewing, in violation of Articles 92, 120, and 120c, Uniform Code 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 of Article 120, UCMJ. 

The convening authority approved the adjudged 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 regarding the legal and 

factual sufficiency of the Specification of Charge I merits discussion. It also merits 

relief.2

BACKGROUND 

 At the end of September, 2014 appellant was stationed at Camp Casey, South 

Korea when Specialist (SPC) AA arrived to her new duty station, Camp Hovey, 

South Korea. On Friday night, 10 October 2014, appellant was at a “smoke pit,” 

outside a barracks playing a drinking game with other soldiers. Specialist AA was 

 

2

 Appellant’s second assignment of error is mooted by our decision with respect to 

the legal and factual sufficiency of the Specification of Charge I. 

Appellant’s third assignment of error asserts a hearing pursuant to United States v. 

Dubay, 17 U.S.C.M.A 147, 37 C.M.R. 411 (1967), is necessary to determine whether 

the panel contained interlopers. All of the panel members that sat on appellant’s 

court-martial were personally selected by the convening authority 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 specific case were not followed and therefore were not 

at the command of the convening authority pursuant to his prior approved selection 

procedures. See Def. App. Ex. A. Furthermore, the error with respect to CW5 AWR 

was both affirmatively remedied at trial by the government and subsequently waived 

by the defense. 

Appellant’s last assignment of error asserts the evidence is both legally and factually 

insufficient to support a conviction for wrongfully viewing SPC AA’s private area, 

as appellant was acquitted of sexual assault. We see nothing inconsistent with the 

panel acquitting appellant of sexually assaulting 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 considered each of the issues personally raised 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 she decided to take a smoke break. Specialist 

AA joined the game and lost, drinking a total of four beers. 

 After the game ended, the group went off-post to several bars. At the first bar 

appellant gave SPC AA three shots of tequila, which she drank. She started to feel 

dizzy and stepped outside to get some fresh air. The group came with her and they 

then decided to go to another bar. Specialist AA drank at the second bar, but had no 

recollection of how much or what she drank. At some point, appellant told SPC AA 

she needed to go back to her barracks room and indicated she was drunk. Appellant 

then escorted SPC AA outside, isolating her from the group. 

 Specialist AA was dizzy and nauseous. Appellant had his arm around her 

waist and walked her down the street to an alleyway. Appellant leaned her up 

against a wall, tried to kiss her, and then put his hand down the inside of her pants. 

Appellant’s hand was over the top of SPC AA’s underwear, rubbing her genitals in a 

circular motion. Specialist AA felt appellant’s erect penis pressed against her thigh. 

Specialist AA told him to stop and vomited. She continued vomiting on the 

sidewalk while on her hands and knees. 

 Appellant arranged for a taxi and took SPC AA back to her barracks. 

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 the barracks. 

Specialist AA threw up again. Appellant testified at trial that he had never seen 

anyone as drunk as SPC AA was that evening. SPC AA could not walk straight and 

appellant guided her back to her room with PFC Long following behind them. 

Appellant laid SPC AA in her bed, fully clothed, with her shoes on. PFC Long told 

appellant they should leave, but appellant insisted on staying to ensure SPC AA was 

alright. Eventually, PFC Long left appellant 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 room and knocked on 

the door. There was no response, so PFC Long knocked harder. No one answered 

the door. They went to the charge of quarters desk to get the master key to SPC 

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

soldiers arrived in the hallway outside SPC AA’s door. Appellant opened the door. 

Appellant was on the phone and was eventually told to leave because SPC AA’s 

platoon sergeant was there to assist. Appellant left. 

 The water in SPC’s AA’s shower was running and SPC Long checked on SPC 

AA. She found SPC AA lying naked in the fetal position on the shower floor, letting 

the water hit her. 
NICOLA—ARMY 20150781 

4 

Specialist AA had no memory of arriving back at the barracks. At trial, she 

testified the next thing she remembered was being naked in the shower. She 

testified appellant was naked in the shower with her and forced his penis in her 

mouth. Appellant was acquitted of this charge. 

LAW AND DISCUSSION 

Appellant asserts his conviction of violating para. 4-14b of Army Regulation 

(AR) 600-20, Army Command Policy (prohibiting relationships between soldiers of 

different ranks) is legally and factually insufficient because SPC AA was incapable 

of consenting to a relationship at the time of the charged acts.

3

 The government 

agrees, but counters the law and facts support an attempted violation of the 

regulation. We disagree. 

For more than a decade our case law has held “the victim’s conduct is relevant 

to whether or not a prohibited relationship was established” for purposes of violating 

the prohibited relationship provisions of AR 600-20. United States v. Morgan, 

ARMY 20000928, 2004 CCA LEXIS 423, at *7 (Army Ct. Crim. App. 20 Feb. 2004) 

(mem. op.). Our case law is clear, it takes two to form a relationship. United States 

v. Oramas, ARMY 20051168, 2007 CCA LEXIS 588, at *6-8 (Army Ct. Crim. App. 

29 Mar. 2007) (mem. op.) (holding a solicitation to engage in sexual acts does not 

amount to a relationship as envisioned by AR 600-20 when the verbal advance was 

rejected); United States v. Patrick, ARMY 20130761, 2015 CCA LEXIS 129, at * 5-

6 (Army Ct. Crim. App. 24 Mar. 2015) (summ. disp.) (holding a plea to wrongfully 

engaging in a prohibited relationship improvident where the appellant’s advances 

were rejected, but affirming the lesser-included offense of attempt); United States v. 

Delgado, ARMY 20140927, 2016 CCA LEXIS 7, at *5, 7 (Army Ct. Crim. App. 6 

Jan. 2016) (mem. op.) (holding while the evidence supported a prohibited 

relationship through an assortment of acts, the only charged act of a non-consensual 

sexual assault could not form the basis to establish a consensual inappropriate 

relationship); United States v. Birdsong, ARMY 20140887, 2016 CCA LEXIS 434, 

at *6 (Army Ct. Crim. App. 8 Jul. 2016) (summ. disp.) (holding a plea to wrongfully 

engaging in a prohibited relationship improvident where the appellant’s advances 

were rejected, but affirming the lesser-included offense of attempt); United States v. 

Huertalopez, ARMY 20150059, 2017 CCA LEXIS 30, at * 4 (Army Ct. Crim. App.

19 Jan. 2017) (summ. disp.) (holding a prohibited relationship could not be formed 

where the victim declined the advances, but affirming the lesser-included offense of 

an attempt based on the advances). While a relationship can be coercive, 

 

3

 Appellant was charged with violating the regulation by “entering [SPC AA’s] 

barracks room alone with her while she was highly intoxicated and remaining inside 

alone with her for approximately one hour without a professional purpose.” 
NICOLA—ARMY 20150781 

5 

manipulative, and need not be “consensual” as that term is generally understood, one 

cannot form a “relationship” with an unconscious or incapacitated person. 

The government concedes the evidence at trial showed SPC AA first rebuffed 

appellant’s advances and was then incapable of consenting because of impairment by 

alcohol. These facts legally precluded the formation of a prohibited relationship at 

the time appellant entered SPC AA’s barracks room and remained therein. The 

government asserts, however, appellant’s acts of entering and remaining in SPC 

AA’s room for an extended period of time constituted the overt acts of an attempted 

violation of the regulation. 

To affirm the lesser-included offense of attempt we must find: (1) that 

appellant did a certain overt act; (2) that the act was done with the specific intent 

to violate the prohibited relationship provisions of AR 600-20, para. 4-14b; (3) that 

the act amounted to more than mere preparation; and (4) that the act apparently 

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

barracks room conceivably could constitute substantial steps toward 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 relationship.4

There is substantial evidence in the case to support both SPC AA was in a 

drunken stupor upon arriving back to her barracks and appellant was well aware of 

this fact. According to SPC AA’s testimony appellant remained in the room and 

sexually assaulted her in the shower. Although acquitted of this conduct, we see 

nothing in the evidence presented to indicate appellant’s specific intent while 

entering and remaining in the room was anything other than to undress and shower 

naked with an incapacitated individual. Appellant was already aware SPC AA had 

vomited multiple times, could barely walk on her own, and was incapable of 

 

4 The standard of review for factual and legal sufficiency by this 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 (Army Ct. Crim. App. 2006). In resolving questions of legal 

sufficiency, this court is “bound to draw every reasonable inference from the 

evidence of record in favor of the prosecution.” Craion, 64 M.J. at 534. In 

weighing factual sufficiency, we apply “neither a presumption of innocence nor a 

presumption of guilt,” and we make an “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). 
NICOLA—ARMY 20150781 

6 

consenting.5 Conversely, appellant’s defense relied on the acts having never 

occurred. According to appellant’s testimony he had never seen anyone as drunk as 

SPC AA was that evening and his intention in staying in the room was to ensure SPC 

AA was alright. Under either version of events, appellant was well aware that SPC 

AA was incapable of consenting to any type of relationship. 

As such, we decline the government’s invitation to affirm the lesser-included 

offense of attempt and grant appropriate relief in our decretal paragraph. 

CONCLUSION 

The findings of guilty of Charge I and its Specification are set aside and 

dismissed with prejudice. The remaining findings of guilty are AFFIRMED. 

We are able to reassess the sentence on the basis of the error 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. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and 

United States v. Sales, 22 M.J. 305 (C.M.A. 1986). We are confident that based on 

the entire record and appellant’s course of conduct, he would have been sentenced to 

at least that which was adjudged, and accordingly 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 legal impossibility for an accused to be 

convicted of both sexual assault and entering into or attempting to enter into a 

prohibited relationship. However, the facts in this case are insufficient for us to do 

so. 

JOHN P. TAITT 

Acting Clerk of Court 

FOR THE COURT: