UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Senior Airman JONATHAN T. DANIEL

United States Air Force

ACM 38322

01 April 2014

Sentence adjudged 25 January 2013 by GCM convened at Altus Air Force 

Base, Oklahoma. Military Judge: J. Wesley Moore.

Approved Sentence: Dishonorable discharge, confinement for 12 months, 

and reduction to E-1. 

Appellate Counsel for the Appellant: Captain Isaac C. Kennen. 

Appellate Counsel for the United States: Colonel Don M. Christensen;

Lieutenant Colonel C. Taylor Smith; and Gerald R. Bruce, Esquire.

Before

HELGET, WEBER, and MITCHELL

Appellate Military Judges

OPINION OF THE COURT

This opinion is subject to editorial correction before final release.

HELGET, Senior Judge:

A general court-martial composed of officer members convicted the appellant, 

contrary to his pleas, of one specification of abusive sexual contact, in violation of 

Article 120, UCMJ, 10 U.S.C. § 920.1 The members sentenced the appellant to a 

dishonorable discharge, confinement for 12 months, and reduction to E-1. The 

convening authority approved the adjudged sentence.

 

1 Consistent with his pleas, the appellant was found not guilty of one specification of sexual assault, in violation of 

Article 120, UCMJ, 10 U.S.C. § 920. 
2 ACM 38322

Before this Court, the appellant raises two assignments of error: (1) Whether the 

Government violated the appellant’s Fifth Amendment2right to due process of law by 

prosecuting him before a court-martial panel of six members whose verdict did not have 

to be unanimous; and (2) Whether the evidence at trial was factually and legally 

sufficient to prove the conviction beyond a reasonable doubt. Finding no error that 

materially prejudices a substantial right of the appellant, we affirm.

Background

On 14 July 2012, the victim in this case, Staff Sergeant (SSgt) LK, and her friend, 

SSgt JM, who were both assigned to Altus Air Force Base, Oklahoma, decided to go to 

Oklahoma City to spend a night out on the town. SSgt LK had previously planned that 

they would meet up with Senior Airman (SrA) RM, who was one of her male friends.

Shortly after checking into their hotel room, at approximately 1600, SSgt LK and 

SSgt JM went to SrA RM’s room, which by coincidence ended up being just across the 

hall. Upon entering SrA RM’s room, SSgt LK and SSgt JM were introduced to the 

appellant and Airman First Class (A1C) CB, who were staying with SrA RM. SSgt LK 

had not previously met the appellant. While in SrA RM’s room, SSgt LK drank about 

half a shot of Grey Goose vodka. At approximately 1830, SSgt LK and SSgt JM went 

with the appellant, SrA RM, and A1C CB to a local restaurant. They drove together in 

SrA RM’s vehicle.

While at the restaurant, SSgt LK drank approximately one mixed drink and four to 

five shots of various kinds of alcohol. At some point during dinner SSgt LK and the 

appellant went outside to smoke, and the appellant informed her that SrA RM was 

attracted to her. SSgt LK responded that she was not interested in starting a relationship 

with SrA RM or anyone else that night, as she was in the process of starting a relationship 

with someone else. 

After dinner, the appellant drove the entire group back to the hotel. Between

2200-2230, they all took a shuttle to downtown Oklahoma City and eventually ended up 

at the CityWalk club. While at the CityWalk, SSgt LK danced with the appellant and at 

some point he rubbed her feet for a few minutes, but according to her nothing romantic 

happened between them.

SrA RM decided to leave the club early and returned to the hotel. The rest of the 

group stayed at the CityWalk until around 0130 on 15 July 2012. On the way back to the 

hotel the appellant and A1C CB could not reach SrA RM and, as a result, did not have a 

place to stay for the night. According to SSgt LK, she discussed the issue with SSgt JM 

and they agreed to allow the appellant and A1C CB to stay in their room as they were 

 

2 U.S. CONST. amend. V.
3 ACM 38322

both Airmen. SSgt LK’s understanding was that the male Airmen were going to sleep on 

the floor, but SSgt JM understood that they were just going to work something out with 

them. On the walk back to the hotel, the appellant gave SSgt LK his shoes, because her 

feet were hurting from wearing heels, and he also carried her for part of the way. 

According to SSgt LK, the appellant made no sexual advances toward her on the way 

back to the hotel.

Upon arrival to the hotel, the appellant and A1C CB stayed downstairs to smoke 

while SSgt LK and SSgt JM went upstairs to their room and proceeded to get ready for 

bed. SSgt LK changed into her pajamas consisting of a V-cut shirt and a pair of black 

drawstring shorts. She was also wearing a bra and underwear. There were two beds in 

the room, and SSgt LK decided to sleep on the bed closest to the door and furthest from 

the bathroom. She remembered only SSgt JM and A1C CB in the room when she went to 

sleep. She understood that the appellant would be sleeping on the floor.

For her part, SSgt JM testified that after she changed into her pajamas, she came 

out of the bathroom and saw SSgt LK, the appellant, and A1C CB all standing at the foot 

of the beds. She then went back into the bathroom to wash her face. When she came 

back out, everyone was lying down in the beds and appeared to be asleep. A1C CB was 

in one bed, and SSgt LK and the appellant were in the other bed closest to the door, under 

the covers. SSgt JM did not witness anything romantic occur between SSgt LK and the 

appellant. 

SSgt LK testified that the next thing she remembered was waking up with the 

appellant’s fingers in her vagina.3 She also felt the appellant’s penis on her left leg inside 

her upper thigh near her genitalia. Her shirt was pulled down and her right breast was 

exposed. Her shorts and underwear had also been pulled down to her thighs. She 

immediately jumped out of bed and started screaming, “Where the f[**]k is the light[?] 

Where the f[**]k is the light[?]” She was mad and scared. When someone turned on the 

lights, she saw the appellant on the opposite side of SSgt JM’s bed pulling up his pants 

and putting his shoes on. SSgt JM and A1C CB were sitting up in the other bed and 

asked what was happening. SSgt LK looked at A1C CB and stated, “Why does your 

friend think it is okay to f[**]kin stick his fingers inside me when I was sleeping?” 

SSgt JM then told the appellant to leave. As the appellant started to leave, SSgt LK 

punched him four to five times in his chest and back and yelled at him to leave. The 

appellant departed without saying a word.

 

3 The appellant was found not guilty of the Charge that alleged, as a violation of Article 120, UCMJ, the appellant 

“commit[ted] a sexual act upon Staff Sergeant [LK], by penetrating the vulva of the said Staff Sergeant [LK] with 

his finger when he knew or reasonably should have known that the said Staff Sergeant [LK] was asleep, with an 

intent to gratify the sexual desire of [the appellant].” The appellant was convicted, in violation of Article 120, 

UCMJ, of the Additional Charge, for “touch[ing] directly the inner thigh of Staff Sergeant [LK] when [the appellant] 

knew or reasonably should have known that the said Staff Sergeant [LK] was asleep, with an intent to gratify the 

sexual desire of the [appellant].”
4 ACM 38322

SSgt JM testified that SSgt LK pounded on the wall, yelled for someone to turn on 

the lights, and yelled at the appellant, “I never invited you into my bed. Get out of my 

bed. You had your fingers inside my vagina. You were trying to put your penis inside 

my vagina.”

SSgt LK then went into the bathroom with SSgt JM. While in the bathroom, 

SSgt LK cried hysterically and tried to tell SSgt JM what happened. She then decided to 

call her friend, Special Agent JH, Air Force Office of Special Investigations, and at his 

direction she called 911 and reported the incident. 

SrA RM testified that he woke up at approximately 0400 to the appellant banging 

on the door. The appellant told SrA RM that the girls had kicked him out of the room 

and proceeded to go to bed.

Fifth Amendment Right to Due Process

The appellant contends that the Government violated his Fifth Amendment right to 

due process of law because he was prosecuted by a court-martial panel consisting of only 

six members whose verdict did not have to be unanimous. The appellant relies on the 

Supreme Court’s rulings in Ballew v. Georgia, 435 U.S. 223 (1978), and Burch v. 

Louisiana, 441 U.S. 130 (1979), to support his position that he was entitled to a jury with 

at least six members and that he could only be found guilty by a unanimous vote. In 

Ballew, the Supreme Court held that a trial consisting of a jury of less than six persons 

deprives a defendant of the right to trial by a jury as contemplated by the Sixth

Amendment.4 435 U.S. at 245. The decision was based on empirical studies showing 

that “the purpose and functioning of the jury in a criminal trial is seriously impaired, and 

to a constitutional degree, by a reduction in size to below six members.” Id. at 239.

Subsequently, in Burch, the Court held that conviction by a non-unanimous six-member 

jury also fails to comply with the Sixth Amendment, saying:

[M]uch the same reasons that led us in Ballew to decide that use of a fivemember jury threatened the fairness of the proceeding and the proper role 

of the jury, lead us to conclude now that conviction for a nonpetty offense 

by only five members of a six-person jury presents a similar threat to 

preservation of the substance of the jury trial guarantee and justifies our 

requiring verdicts rendered by six-person juries to be unanimous.

441 U.S. at 138.

In O’Callahan v. Parker, 395 U.S. 258 (1969), overruled on other grounds by

Solorio v. United States, 483 U.S. 435 (1987), the Supreme Court explained:

 

4 U.S. CONST. amend. VI.
5 ACM 38322

The Constitution gives Congress power to “make Rules for the Government 

and Regulation of the land and naval Forces,” and it recognizes that the 

exigencies of military discipline require the existence of a special system of 

military courts in which not all of the specific procedural protections 

deemed essential in Art. III trials need apply. The Fifth Amendment 

specifically exempts “cases arising in the land or naval forces, or in the 

Militia, when in actual service in time of War or public danger” from the 

requirement of prosecution by indictment and from the right to trial by jury. 

The result has been the establishment and development of a system of 

military justice with fundamental differences from the practices in the 

civilian courts.

Id. at 261-62 (citation and emphasis omitted). 

If the case does not arise in the land or naval forces, then the accused gets, first, 

the benefit of an indictment by a grand jury and, second, a trial by jury before a civilian 

court as guaranteed by the Sixth Amendment and by Article III, Section 2, of the 

Constitution,

5 which provides, in part:

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; 

and such Trial shall be held in the State where the said Crimes shall have 

been committed; but when not committed within any State, the Trial shall 

be at such Place or Places as the Congress may by Law have directed.

While the Sixth Amendment requires trial by jury in Federal criminal cases, and 

that jury’s composition must be a representative cross-section of the community, courtsmartial have never been considered subject to the jury-trial demands of the Constitution. 

United States v. McClain, 22 M.J. 124, 128 (C.M.A.1986); see also O’Callahan,

395 U.S. at 261-62. Our superior court recently re-emphasized that the Sixth 

Amendment right to a jury trial does not apply to courts-martial. United States v. Easton, 

71 M.J. 168, 175 (C.A.A.F. 2012) (citing Ex parte Quirin, 317 U.S. 1, 39 (1942); United 

States v. Wiesen, 57 M.J. 48, 50 (C.A.A.F. 2002)).

We find the authorities cited by appellant to buttress his claim of a due process 

violation, Ballew and Burch, do not in any way limit the power of Congress to create 

rules for courts-martial pursuant to Article I, Section 8 of the Constitution.6 Consistent 

with our superior court’s precedent, courts-martial are not subject to the same jury 

requirements as other criminal trials. Accordingly, this issue is without merit.

 

5 U.S. CONST. art. III, § 2.

6 U.S. CONST. art. I, § 8.
6 ACM 38322

Legal and Factual Sufficiency

The appellant asserts that the evidence at trial was not factually and legally 

sufficient to prove the conviction for abusive sexual contact. We review issues of factual 

and legal sufficiency de novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 

2002). 

 

The test for factual sufficiency is “whether, after weighing the evidence in the 

record of trial and making allowances for not having personally observed the witnesses, 

[we are] convinced of the [appellant]’s guilt beyond a reasonable doubt.” United States 

v. Turner, 25 M.J. 324, 325 (C.M.A. 1987), quoted in United States v. Reed, 54 M.J. 37, 

41 (C.A.A.F. 2000). In conducting this unique appellate role, we take “a fresh, impartial 

look at the evidence,” applying “neither a presumption of innocence nor a presumption of 

guilt” to “make [our] own independent determination as to whether the evidence 

constitutes proof of each required element beyond a reasonable doubt.” Washington, 

57 M.J. at 399.

The test for legal sufficiency of the evidence is “whether, considering the evidence 

in the light most favorable to the prosecution, a reasonable factfinder could have found 

all the essential elements beyond a reasonable doubt.” Turner, 25 M.J. at 324, quoted in 

United States v. Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002). “[I]n 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) (citing United States v. Rogers, 54 M.J. 244, 246 (C.A.A.F. 2000); 

United States v. Blocker, 32 M.J. 281, 284 (C.M.A. 1991)). Our assessment of legal and 

factual sufficiency is limited to the evidence produced at trial. United States v. Dykes, 

38 M.J. 270, 272 (C.M.A. 1993).

The elements of abusive sexual contact, in violation of Article 120, UCMJ, as 

instructed by the military judge, are:

(1) That at or near Oklahoma City, Oklahoma, on or about 15 July 2012, 

the accused committed sexual contact upon [SSgt LK], to wit: touching 

directly the inner thigh of [SSgt LK]; and

(2) That the accused did so when he knew or reasonably should have 

known that [SSgt LK] was asleep.

The military judge further instructed the members that “sexual contact” means:

(A) touching, or causing another person to touch, either directly or 

through the clothing, the genitalia, anus, groin, breast, inner thigh, or 
7 ACM 38322

buttocks of any person, with an intent to abuse, humiliate or degrade any 

person; or

(B) any touching, or causing another person to touch, either directly 

or through the clothing, any body part of any person, if done with an intent 

to arouse or gratify the sexual desire of any person. Touching may be 

accomplished by any part of the body.

In support of his claim of legal and factual insufficiency, the appellant essentially 

attacks the credibility of SSgt LK and argues that no reasonable factfinder could have 

found her testimony sufficient to establish guilt beyond a reasonable doubt. The 

appellant highlights differences between her Article 32, UCMJ, 10 U.S.C. § 832,

testimony and her in-court testimony, primarily concerning the location of the appellant’s 

penis on her body.

We have reviewed and considered the entire record of trial and find that although 

there are some relatively minor inconsistencies concerning SSgt LK’s testimony, her 

recounting of what happened on the night of 14-15 July 2012 was very consistent with 

the testimony of the other witnesses who were present that evening. The evidence shows 

that she was not romantically interested in the appellant, she fell asleep and did not invite 

him to join her in bed, and she awoke with the appellant’s penis touching her inner thigh. 

We have considered the evidence in the light most favorable to the prosecution. 

We have also made allowances for not having personally observed the witnesses. Having 

paid particular attention to the matters raised by the appellant, we find the evidence 

factually and legally sufficient to support his conviction for abusive sexual contact.

Conclusion

The approved findings and sentence are correct in law and fact, and no error 

materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a) 

and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and 

sentence are

AFFIRMED.

FOR THE COURT

STEVE LUCAS

Clerk of the Court