## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, HERRING, and BURTON Appellate Military Judges

UNITED STATES, Appellee

v. Sergeant MICHAEL B. SCIONEAUX United States Army, Appellant

ARMY 20130850

Headquarters, 7th In fantry Division Stefan R. Wolfe, Milit ary Judge (arraignment) Jeffery D. Lippert, Mi litary Judge (trial)
Lieutenant Colonel Michael S. Devi ne, Staff Judge Advocate (pretrial)

Colonel Robert F. Re snick, Staff Judge Advocate (recommendation)
Lieutenant Colonel Shawn W. Gord on, Staff Judge Advocate (addendum)

For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Niema n, JA; and Captain Brian D. Andes, JA (on brief)

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel Gregory A. Marchand, JA; and Major Steven J. Collins, JA (on brief).

13 April 2016

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

--------------------------------- Per Curiam:

A panel with enlisted re presentation, sitti ng as a general court-martial, convicted appellant, contra ry to pleas, of abusive sexual contact and assault consummated by a battery in violation of Articles 120 and 128, Uniform Code of Military Justice, 10 U.S.C. § §920, 928 (2006 & Supp. V) [hereinafter UCMJ]. * The panel sentenced appellant to be discharged from the service with a bad conduct discharge, to be conf ined for ninety days, a reprima nd, and to be reduced to the

* The government also charged appellant with wrongful se xual contact and indecent exposure in violat ion of Article 120, UCMJ, 10 U. S.C. §920 (2006 & Supp. V).
Based on instructions from the military judge, the panel did not enter findings for the wrongful sexual contact. The panel found appellan t not guilty of indecent

exposure.SCIONEAUX—ARMY 20130850

2 grade of E-1. The convening authority appr oved only so much of the sentence as provided for a bad condu ct discharge, sixty days of confinement, an d reduction to the grade E-1.

Appellant’s case is before this court for revi ew under Article 66, UCMJ. Appellant raises two errors, neither of which merit disc ussion or relief. Appellant personally raised four issues pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), one of which me rits discussion and relief. After review of the entire record, we are no t convinced beyond a reas onable doubt as to ap pellant’s guilt of a portion of the language encompassed within th e Specification of Ch arge II. We will grant appropriate relief in our decretal paragraph.

LAW AND DISCUSSION

In accordance with Article 66(c), UCMJ, we review issues of legal and factual 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 pr osecution, a reason able factfinder co uld have found all the essential elements beyo nd a reasonable doubt.” United States v. Turner , 25 M.J. 324 (C.M.A. 1987); see also Jackson v. Virginia , 443 U.S. 3 07, 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 evidence of record in favor of the prosecution.” United States v. Barner , 56 M.J. 131, 134 (C.A.A.F. 2001 ). The test for factual su fficiency is “whether, after weighing the evidence in the record of tr ial and making allowa nces for not having personally observed th e witnesses, [we] are [ourselv es] convinced of the accused’s guilt beyond a reas onable doubt.” Turner , 25 M.J. at 325.

The Specification of Charge II allege d appellant unlawful ly struck Staff Sergeant (SSG) AC “on the h ead and neck with his hand .” The tes timony of SSG AC is clear that appellant “made the decisi on to karate chop me in th e throat and then grab my shou lder.” Her testimony is void of appellant striki ng her in the head. Appellant also admitte d to law enforcement, specifically Special Agent CE, that he
struck SSG AC in th e neck. The government presente d no evidence appellant struck
SSG AC in the head. Accordingly, we find the eviden ce insufficient to uphold that portion of the Specification Charge II alle ging appellant struck SSG AC in the head.

CONCLUSION

Having completed our revi ew and in consideration of the entire record, we AFFIRM only so much of the Specification of Charge II as finds:SCIONEAUX—ARMY 20130850

3 In that [Appellant], U.S. Arm y, did, at or near Killeen, Texas, on or abou t 22 April 2012, unla wfully strike SSG (E-6) [AC] on the n eck with his hand.

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 circumstance s presented by appellant’s case and in accordance with the principles ar ticulated 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 co nfident that based on the entire reco rd and appellant’s course of conduct, th e panel would have im posed a sentence of at least th at which was adjudged, and accordingly we AFFIRM the sentence.

We find this reassess ed sentence is not only purged of any error but is also appropriate. All rights, privileges, a nd property, of which appellant has been deprived by virtue of that portion of the fi ndings set aside by our decision, are
ordered restored.

FOR THE COURT:

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