## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, HERRING, and BURTON Appellate Military Judges

UNITED STATES, Appellee

v. Specialist JOSUE SANTIAGOSERRANO United States Army, Appellant

ARMY 20140166

Headquarters, III Co rps and Fort Hood

Rebecca K. Connally, Military Judge Colonel Richard W. Rousseau, St aff Judge Advocat e (pretrial) Colonel Ian G. Corey, Staff Judge Advocate (post-trial)

For Appellant: Li eutenant Colonel Ch arles D. Lozano, JA ; Major Aaron R. Inkenbrandt, JA; Captain Nichol as J. Larson, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major Daniel D. De rner, JA; Captain Christopher A. Clausen, JA, (on brief).

16 March 2016

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

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

Per Curiam:

A panel with enlisted re presentation, sitti ng as a special court-martial, acquitted appellant, in accordance with his pleas, of one specification of abusive
sexual contact in violation of Article 120, Unifor m Code of Milit ary Justice, 10 U.S.C. § 920 (2012) [herei nafter UCMJ]. Ho wever, the panel found him guilty of one specification of the less er-included offense of Arti cle 128, assault consummated by a battery in violation of Article 128, UCMJ, 10 U.S.C. § 928 (2012). Additionally, the panel convicted appellant, contrary to his pleas, of one specification as charged of assault consummated by battery. 1 The panel sentenced appellant to a bad conduct discharge, sixty days confinem ent, and reduction to E-1. The military judge credited appellant with eight days of confinement agains t the sentence of

1 The panel found appellant no t guilty, in accordance with his pleas, of two additional specifications of as sault consummated by a battery.SANTIAGOSERRANO—ARMY 20140166

2 confinement. The convening authority approved the sentence as adjudged and approved the confinement credit.

Appellant’s case is befo re this court for review under Article 66, UCMJ. Appellant raises one assignment of erro r, which merits discussion and relief. 2 After
review of the entire recor d, we are not convinced bey ond a reasonable doubt as to one aspect of appellan t’s guilt. Accordingl y we will except “on divers occasions” from Specification 2 of Charge II in our decretal paragraph.

DISCUSSION

Specification 2 of Charge II alleged appellant unlawful ly struck SA “on divers
occasions . . . on the face wi th his hand.” On appeal, the government concedes that
the evidence introduced at tr ial to support this allega tion was the testimony of SA, who testified that appellant made contact to her mouth with his hand on one
occasion. SA could not recal l any other time that appellant hit her in the face.
Other witnesses also testified that SA told them that appe llant struck he r in the face

once.

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, this court is “bound to draw every reas onable infere nce 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.

Having completed our revi ew and in consideration of the entire record, we AFFIRM only so much of Specificat ion 2 of Charge II as provides:

In that, [appellant], did at or near Fort Hood, Texas, on or
about 13 November 2013 and on or about 14 November 2013, unlawfully strike SA on the face with his hand.

2 We have also reviewed th ose matters personall y raised by appell ant pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), an d they are without merit.SANTIAGOSERRANO—ARMY 20140166

3 The remaining findings of guilty are AFFIRMED.

We are able to reassess th e sentence on the basis of the error noted and do so after conducting a thorough analysis of the totality of circ umstances presented by appellant’s case and in accordance with th e principles articulat ed 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 conf ident that based on the entire record and appell ant’s course of conduct, the panel would have imposed a
sentence of at least that which was ad judged, and accordin gly 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:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: