UNITED STATES, Appellee 

v. 

Sean P. BRIGHT, Sergeant First Class 

U.S. Army, Appellant 

No. 07-0269 

Crim. App. No. 20020938 

United States Court of Appeals for the Armed Forces 

Argued April 8, 2008 

Decided June 9, 2008 

ERDMANN, J., delivered the opinion of the court, in which 

EFFRON, C.J., and BAKER, STUCKY, and RYAN, JJ., joined. 

Counsel 

For Appellant: Charles W. Gittins, Esq. (argued); Captain Shay 

Stanford (on brief); Captain Edward G. Bahdi and Captain Fansu 

Ku. 

For Appellee: Captain Teresa T. Phelps (argued); Colonel John 

W. Miller II, Major Elizabeth G. Marotta, and Captain W. Todd

Kuchenthal (on brief); Major Tami L. Dillahunt and Captain 

Michael Friess. 

Amicus Curiae for Appellant: Charles B. Cromwell (law student) 

(argued); Jeffrey T. Renz, Esq. (supervising attorney) (on 

brief) -- for the University of Montana School of Law. 

Military Judge: Ronald W. White 

This opinion is subject to revision before final publication. 
United States v. Bright, No. 07-0269/AR 

2

Judge ERDMANN delivered the opinion of the court. 

 Sergeant First Class Sean P. Bright, a drill sergeant, was 

convicted of raping a female trainee on three separate 

occasions.1 The United States Army Court of Criminal Appeals 

affirmed his convictions. United States v. Bright, No. ARMY 

20020938 (A. Ct. Crim. App. Dec. 19, 2006). We granted review 

to consider whether the evidence was legally sufficient to 

support the findings of guilty as to the three rape 

specifications. 65 M.J. 323 (C.A.A.F. 2007). We hold that the 

evidence was not legally sufficient to support the rape 

convictions and reverse the findings as to those specifications.2

 

BACKGROUND 

 Private W was twenty-three years old when she completed 

basic training and arrived at Advanced Individual Training (AIT) 

 

1

 Bright was also convicted of several other offenses which are 

not at issue in this appeal, including: two specifications each 

of forcible sodomy, maltreatment, and violating a lawful 

regulation by wrongfully having a relationship with a private; 

one specification each of attempting to violate a lawful general 

regulation by wrongfully asking a private to have a 

relationship, adultery, and impeding an investigation. These 

charges against Bright were based on allegations of 

improprieties with three different female trainees. Private W, 

the alleged victim of the rape specifications, was also named in 

the forcible sodomy specifications, one maltreatment 

specification, one disobedience specification, and the adultery 

charge. 

2

 Oral argument in this case was heard at the University of 

Montana School of Law, Missoula, Montana, as part of the court’s 

“Project Outreach.” See United States v. Mahoney, 58 M.J. 346, 

347 n.1 (C.A.A.F. 2003). This practice was developed as part of 

a public awareness program to demonstrate the operation of a 

federal court of appeals and the military justice system. 
United States v. Bright, No. 07-0269/AR 

3

on December 3, 2001. Bright, Private W’s platoon drill sergeant 

at AIT, made Private W a squad leader. According to Private W’s 

testimony, on February 1, 2002, Bright called her into his 

office. Bright initially engaged her in a verbal exchange 

typical of the platoon. He asked questions such as, “‘Are you 

ready for this, private? Are you ready?’” and “‘You ain’t 

ready. Are you scared?’” Although Private W did not know what 

was behind the questions, she responded: “‘Yes, drill sergeant, 

I’m ready,’” and “‘I ain’t scared of nothing, drill sergeant.’” 

During this exchange, Bright also stated, “‘I’m going to get up 

and you’re going to receive.’” Private W testified that she 

responded “‘Hooah,’” but she did not know what Bright was 

talking about at the time. 

 Private W testified that Bright then sent her to wait in 

the hallway. Bright left and when he returned he winked at her 

and called her back into his office. While she was standing in 

front of Bright’s desk at parade rest, Bright asked Private W if 

she found him attractive. Private W initially said, “‘I don’t 

know,’” but when Bright pressed the issue, Private W answered 

affirmatively. Bright told Private W to go to the female bay 

and call him on his cell phone. Bright said that they “were 

going to meet up at the Comfort Inn.” According to Private W’s 

testimony, she first responded, “‘No, it’s a bad idea, drill 
United States v. Bright, No. 07-0269/AR 

4

sergeant.’” Bright persisted, however, and Private W called 

him. 

During the phone call, Bright told Private W to take a cab 

to the hotel and page him back with the room number. Private W 

initially “told him no” because she didn’t “really want to go 

meet up with my drill sergeant at a hotel.” Private W 

testified, “[T]here’s only one reason you’re going to go meet up 

with somebody at a hotel out of the blue for a couple of hours.” 

On direct examination, Private W indicated that she knew exactly 

what Bright meant. Private W stated that when she initially 

refused, Bright told her to meet him “‘[o]r else you can stay 

here this weekend.’” 

According to Private W, she was on “Gold Pass” status, 

which meant that she could freely leave post on the weekends. 

During the phone call, Bright reminded Private W that he 

controlled her pass status and asked her if she wanted “to spend 

eight months at Bravo locked down on Red Pass.” When Private W 

responded that she did not want that, Bright answered, “‘Well, 

then do what I just told you to do,’” and Private W agreed. 

Private W testified that she packed a bag, took a cab to 

the hotel, checked in and paid for the room, and then called 

Bright with the room number. Private W watched television as 

she waited for Bright to arrive. When he arrived a few minutes 

later, Bright gave her money for the room, undressed himself and 
United States v. Bright, No. 07-0269/AR 

5

told her to take off her clothes. She undressed and they had 

sexual intercourse. When asked during cross-examination if 

Bright threatened her, Private W answered, “Not physically, no.” 

Private W’s testimony reveals that she met Bright at 

various hotels on four more occasions: on or about February 8, 

February 15, sometime in the middle of March, and on or about 

April 5, 2002. As to the second encounter on February 8, 2002, 

Private W testified that “[e]xactly the same thing” happened: 

she arrived first and checked into the room; when Bright arrived 

he told her to get undressed; after she undressed they had sex 

and he left. Private W described the sex on the first and 

second occasions as “[j]ust normal intercourse.” She said she 

“wasn’t really doing anything . . . just laid there . . . and 

waited.” When asked on cross-examination, “You didn’t tell him 

to stop did you?,” Private W answered, “No.” 

Private W’s testimony indicates that while she was out with 

friends, Bright paged her to arrange their third encounter on 

February 15, 2002. She testified: “[H]e kept paging me and 

paging me and finally I called him back. And . . . he told me 

to meet him at the Budget Lodge . . . . So I was like, 

alright.” Bright arrived at the hotel first and was in bed 

undressed when Private W arrived. Bright told her to take her 

clothes off. Private W started undressing and Bright helped her 

finish. In the words of Private W, “then we had sex.” Again, 
United States v. Bright, No. 07-0269/AR 

6

Private W described their encounter as “[j]ust normal 

intercourse.” She said that it was “[p]retty much the same as 

usual. I just kind of laid there and didn’t really do much of 

anything.” When asked on cross-examination, “And [you] just 

casually kind of had sex and smoked cigarettes, is that right?,” 

Private W answered, “Yes.” 

The fourth incident involved a mix-up with hotel 

arrangements. According to Private W, Bright “showed up 

eventually” and sent Private W to get beer out of his car. 

Private W testified, “I came back in and we just had sex.” On 

cross-examination, Private W was asked, “so I take it on this 

one ya’ll just had sex, drank beers, smoked cigarettes, is that 

right?” Private W answered, “Yes.” 

With respect to their last encounter on April 5, 2002, 

Bright paged Private W to arrange their meeting. When she 

called him back, he told her to meet him at a specific hotel. 

According to Private W’s testimony, her response was “okay.” 

When she arrived at the hotel, Private W called Bright with the 

room number and ordered a pizza while she was waiting for him to 

arrive. Bright told her to call back and order soda. Private W 

testified that after the pizza came, “we ate, had sex, and he 

left.” Private W also testified that “[l]ater on . . . he would 

tell me he loved me and wanted me to have his baby and stuff 
United States v. Bright, No. 07-0269/AR 

7

like that.” Her response was: “I told him it was crazy and no 

way am I getting pregnant by anybody, let alone him.” 

Private W’s testimony also described an incident of sodomy 

that she tried to resist. Private W could not recall exactly 

when the sodomy occurred, but believed it may have been during 

their third encounter. According to Private W, Bright initiated 

anal sex after intercourse. Her initial reaction was “‘Uh uh.’ 

. . . ‘No way.’” According to Private W’s testimony, Bright 

flipped her body over and she tried to crawl away. He grabbed 

her hips and pulled her back towards him. Private W testified 

that she said “no” a couple times and tried to move away a 

couple times and then just waited for it to end. Private W also 

testified that Bright told her to perform oral sex on him. 

According to Private W, Bright would “push my head in that 

general direction and I’d just do it.” 

During her testimony, Private W described how some of their 

hotel encounters were arranged. She indicated that sometimes 

Bright would “make something up to call [her] into his office” 

and yell at her while gesturing with his hands that she should 

call him. He also would page her using a code. She testified: 

[I]f it was over the weekend or something and I never 

called him back and he had been paging me then like on 

Monday or something -- like one time he smoked us. 

Right? He was like, “Private [W], you know you messed 

up this weekend. You know what you did wrong,” . . . . 

and we’re all down doing pushups. 

 
United States v. Bright, No. 07-0269/AR 

8

 When asked if she had ever seen Bright’s “angry side,” 

Private W testified that “he’ll like trash things and just start 

throwing everything around all over the place in his office or 

something if he’s mad. And he just goes off the hook . . . .” 

Private W made clear in her testimony, however, that he never 

threw things directly at her. She also testified that “if I 

hadn’t called him in a while when I was supposed to call” he 

would say to her things like: 

Don’t you f[...]ing piss me off because you know I’ve 

got control over this company and I can do whatever I 

want so you better not piss me off and you better do 

what I tell you to do and when I tell you to do it. I 

don’t give a f[...] about anything else. 

Private W emphasized this point later in her testimony, stating 

that when she didn’t return his pages: 

He would yell at me outside and he smoked the platoon 

or he’d smoke us all or he’d just -- like one time he 

paged me like a lot and I finally called him back and 

he told me -- he told me, “Don’t piss me off. You 

don’t want to mess with me. I’m the wrong person to 

be playing around with.” 

 When asked during her testimony if Private W ever thought 

about running or calling the police while at the hotel room, she 

answered: 

Not really. For one, there’s -- you know, I ain’t 

that big of a person compared to Drill Sergeant 

Bright, sir, and if I really wanted to run, and he 

really wanted to stop me, I don’t think I’d make it 

very far. And I never thought about calling the cops 

really. You know? I didn’t think -- they’d be like, 

“Oh, why are you here with him in the first place 

anyways?” 
United States v. Bright, No. 07-0269/AR 

9

On cross-examination, Private W was asked about their first 

encounter on February 1, 2002: “[D]id he or did he not abuse 

you, cause you any harm, or threaten you at that time?” She 

answered, “He threatened to take away my pass status and he 

threatened to keep me on lock down for the entire eight months 

that I was at Bravo Company.” Defense counsel cross-examined 

her further: “But you never tried to, again, not show up?” 

Private W answered, “Well, if I just didn’t show up, I’d have 

the consequences to deal with the next week when I saw him 

again.” 

On redirect examination, Government counsel specifically 

asked Private W what those consequences were, and Private W 

reiterated the concerns she had about her pass status: “He told 

me he would take away my pass status and that I’d be locked down 

at Bravo company for the entire time -- for the entire time that 

I would be there. And I didn’t want to do that and that life 

would be a living hell.” Private W never testified that she 

feared Bright would physically harm her if she did not meet him 

at the hotels to engage in sexual intercourse. 

The Government also presented the testimony of Private M, 

another squad leader at Bravo Company and a woman with whom 

Private W had discussed the sexual relationship between herself 

and Bright. Private M was asked if she had ever seen Bright’s 

“angry side.” Private M answered affirmatively and testified 
United States v. Bright, No. 07-0269/AR 

10

that she felt threatened while he was “chewing [her and Private 

W] out because of our squads.” She stated that Bright said she 

should be scared of him “‘[b]ecause you don’t know how mother 

f[...]in’ violent I can get.’” Private M also stated: 

[W]ell, like he would get up into people’s faces and 

tell them to get in the f[...]ing grass -- “Get in the 

f[...] -- get the hell out of my formation. Get in 

the f[...]ing grass.” And he would like toss stuff 

all around when he was tearing apart lockers. He 

would throw people on the grass. He’d -- well, not 

like throw them, but he would tell them to get in the 

grass. Get (inaudible) and push. And he would be 

yelling. He’d like grab their face yelling at them 

and everything, cussing at ’em. 

After the close of the Government’s case, the military 

judge found that the evidence was legally insufficient to 

support the specification regarding the first allegation of rape 

on February 1, 2002. The members subsequently found Bright not 

guilty of raping Private W on February 22, 2002, but guilty of 

raping Private W on February 8, February 15, and April 5, 2002.3

 

Bright was sentenced to reduction to E-1, forfeiture of $550 pay 

per month for twelve months, confinement for five years, and a 

dishonorable discharge. The convening authority approved the 

sentence as adjudged.4

 

 

3

 The members also found Bright guilty of several related 

offenses. See supra note 1. 

4

 As noted, the Army Court of Criminal Appeals summarily 

affirmed. United States v. Bright, No. ARMY 20020938 (A. Ct. 

Crim. App. Dec. 19, 2006). 
United States v. Bright, No. 07-0269/AR 

11

DISCUSSION 

 The question before us is whether the evidence is legally 

sufficient to support the findings of guilty as to the 

specifications alleging rape on February 8, February 15, and 

April 5, 2002. Legal sufficiency is a question of law that this 

court reviews de novo. United States v. Tollinchi, 54 M.J. 80, 

82 (C.A.A.F. 2000). The test for legal sufficiency is whether, 

considering the evidence in the light most favorable to the 

prosecution, any reasonable factfinder could have found all the 

essential elements of the offense beyond a reasonable doubt. 

United States v. Day, 66 M.J. 172, 173 (C.A.A.F. 2008). 

 Under Article 120(a), Uniform Code of Military Justice 

(UCMJ), 10 U.S.C. § 920(a) (2000), “[a]ny person . . . who 

commits an act of sexual intercourse, by force and without 

consent, is guilty of rape.” The Manual for Courts-Martial, 

United States (MCM) identifies the essential elements of rape as 

follows: (1) “That the accused committed an act of sexual 

intercourse;” and (2) “That the act of sexual intercourse was 

done by force and without consent.” MCM pt. IV, para. 45.b. 

(2005 ed.).5

 

 

5

 While not applicable to this case, we note that Article 120, 

UCMJ, has been amended since Bright’s court-martial. See

National Defense Authorization Act (NDAA) for Fiscal Year 2006, 

Pub. L. No 109-163, 119 Stat. 3136, 3257-63 (2006) (to be 

codified as amended at 10 U.S.C. § 920). Corresponding 

provisions in the MCM have also been amended. See MCM pt. IV, 

para. 45 (2008 ed.). 
United States v. Bright, No. 07-0269/AR 

12

 The MCM states further: 

Force and lack of consent are necessary to the 

offense. Thus, if the victim consents to the act, it 

is not rape. The lack of consent required, however, 

is more than mere lack of acquiescence. If a victim 

in possession of his or her mental faculties fails to 

make lack of consent reasonably manifest by taking 

such measures of resistance as are called for by the 

circumstances, the inference may be drawn that the 

victim did consent. Consent, however, may not be 

inferred if resistance would have been futile, where 

resistance is overcome by threats of death or great 

bodily harm, or where the victim is unable to resist 

because of the lack of mental or physical faculties. 

In such a case there is no consent and the force 

involved in penetration will suffice. All the 

surrounding circumstances are to be considered in 

determining whether a victim gave consent, or whether 

he or she failed or ceased to resist only because of a 

reasonable fear of death or grievous bodily harm. 

MCM pt. IV, para. 45.c.(1)(b). 

 We have recognized that force and lack of consent are 

separate elements but “there may be circumstances in which the 

two elements are so closely intertwined that both elements may 

be proved by the same evidence.” United States v. Simpson, 58 

M.J. 368, 377 (C.A.A.F. 2003). We have also recognized that 

force can be actual or constructive. See United States v. 

Hicks, 24 M.J. 3, 6 (C.M.A. 1987). In determining whether force 

and lack of consent occurred, the court-martial must consider 

the totality of the circumstances presented in the case. United 

States v. Cauley, 45 M.J. 353, 356 (C.A.A.F. 1996). 

 Bright contends that the rape specifications must be set 

aside because the Government failed to establish that sexual 
United States v. Bright, No. 07-0269/AR 

13

intercourse occurred without Private W’s consent; or if the 

intercourse did occur without consent, the Government failed to 

establish that Bright would reasonably have been aware of 

Private W’s non-consent due to her conduct. Bright also argues 

that the evidence was legally insufficient to establish 

constructive force because there was no nexus in time, place or 

circumstances between Bright’s on-duty tirades and the off-post 

intercourse. 

The Government responds that Private W had a reasonable 

belief that resistance would be futile based upon Bright’s 

repeated threats, intimidation, and abuse of his authority and 

position as Private W’s drill sergeant. Consequently, the 

Government contends, consent may not be inferred and 

constructive force has been established. 

 We turn first to the issue of consent and consider whether 

Private W made her lack of consent “reasonably manifest by 

taking such measures of resistance as called for by the 

circumstances.” MCM pt. IV, para. 45.c.(1)(b). Proof that 

Private W physically resisted Bright is not needed to support a 

finding of lack of consent. Cauley, 45 M.J. at 356 (citing 

United States v. Webster, 40 M.J. 384, 386 (C.M.A. 1994)). “A 

lack of consent can be manifested by the victim in a number of 

ways other than physical resistance.” Id. In Webster for 

example, we concluded that the victim’s repeated verbal 
United States v. Bright, No. 07-0269/AR 

14

rejections were enough to establish that the members could 

reasonably have found or inferred beyond a reasonable doubt the 

element of lack of consent. 40 M.J. at 387. 

 In this case, however, the record is devoid of any evidence 

showing that Private W manifested a lack of consent or took any 

measures to resist sexual intercourse with Bright on February 8, 

February 15, and April 5, 2002. Private W’s testimony 

establishes that on each occasion, she made arrangements by 

phone with Bright to meet at a hotel, fully cognizant that once 

at the hotel, the two would engage in sexual intercourse. Then, 

unaccompanied by Bright, Private W made her own way to the 

designated hotel. 

 In two of these three incidents, Private W reached the 

hotel before Bright and waited for him to arrive. Excluding the 

incident of sodomy which is not at issue in this appeal, Private 

W’s descriptions of their sexual encounters do not include any 

indication that Private W verbally or physically resisted sexual 

intercourse either at the time the arrangements were made to 

meet for sex or once the two were together at the hotel. 

 On the contrary, Private W’s testimony reveals that during 

the phone calls preceding the hotel meetings on February 15, and 

April 5, 2002, she affirmatively voiced her agreement to meet 

Bright at the hotels, and there is no question that she knew 

they would engage in sexual intercourse at the hotels. In 
United States v. Bright, No. 07-0269/AR 

15

addition, when trial counsel asked her about having sex with 

Bright on February 8, 2002, Private W testified expressly that 

she did not tell Bright to stop. 

 This conduct contrasts markedly with her response to Bright 

on the one occasion when he initiated anal sodomy after 

intercourse. According to Private W’s testimony, at that time 

she repeatedly told Bright “no” and tried to crawl away to avoid 

his advances. While Private W’s conduct with respect to the 

sodomy incident clearly supports a finding that lack of consent 

was reasonably manifest as to that act, Private W’s accounts of 

what she called “[j]ust normal intercourse” lack any similar 

manifestations of lack of consent. We conclude that her 

testimony with respect to the acts of “normal intercourse” fails 

to provide a basis from which lack of consent can reasonably be 

inferred. 

 Our conclusion that Private W did not make her lack of 

consent reasonably manifest does not end our inquiry into 

consent. As stated in the MCM, “[c]onsent, however, may not be 

inferred if resistance would have been futile, where resistance 

is overcome by threats of death or great bodily harm, or where 

the victim is unable to resist because of the lack of mental or 

physical faculties.” MCM pt. IV, para. 45.c.(1)(b). As this 

case does not involve questions regarding the lack of mental or 

physical faculties, we next consider whether “resistance would 
United States v. Bright, No. 07-0269/AR 

16

have been futile, where resistance is overcome by threats of 

death or great bodily harm.” Id. 

 In support of its argument that resistance would have been 

futile, the Government points to Private W’s testimony that 

before she entered the Army, she was told that she would be 

raped by a drill sergeant and there was nothing she could do 

about it. The Government also points to Private W’s testimony 

that she did not think about running or calling the police when 

she was with Bright at the hotels because “I ain’t that big of a 

person compared to Drill Sergeant Bright” and “if I really 

wanted to run, and he really wanted to stop me, I don’t think 

I’d make it very far.” In addition the Government relies on the 

testimony of another squad leader, Private M, who testified that 

in the presence of Private W, Bright talked about his capacity 

for violence. Finally, the Government points to the sodomy 

incident, where Private W verbally indicated non-consent and 

tried to crawl away, but Bright pulled her back and subjected 

her to an act of sodomy despite Private W’s resistance. 

 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.’” United States v. Rogers, 

54 M.J. 244, 246 (C.A.A.F. 2000) (quoting United States v. 

Blocker, 32 M.J. 281, 284 (C.M.A. 1991)). When considered under 

this standard, Private W’s testimony about the incident of 
United States v. Bright, No. 07-0269/AR 

17

forcible sodomy and her testimony regarding Bright’s ability to 

catch her if she ran from the hotel arguably provides some 

support for a finding that, once Private W was physically

present in the hotel with Bright, resistance to sex may have 

been futile. 

 However, the members are bound to consider the totality of 

the circumstances presented by each case. Cauley, 45 M.J. at 

356. On the facts of this case, when addressing whether the 

futility of resisting sexual intercourse with Bright establishes 

lack of consent, the Government cannot overcome the fact that 

Private W was physically separated from Bright at the time she 

agreed to meet him for sex on February 8, February 15, and April 

5, 2002. After affirmatively indicating on the phone that she 

was willing to meet him at the hotel, Private W made her own way 

to the hotel unaccompanied by Bright who arrived at the hotel on 

each occasion separately. There is no evidence to support the 

inference that avoiding the hotel room would have been a futile 

act of resistance. 

In fact, Private W never testified that it would have been 

futile to resist the encounters altogether. Rather, she 

testified that if she did not meet him at the hotels as 

requested, there would be consequences. In particular, she 

indicated that on one occasion where she did ignore his pages, 

Bright “smoked the platoon.” That is, after she resisted his 
United States v. Bright, No. 07-0269/AR 

18

advances, he subjected the platoon to rigorous physical training 

in the form of push-ups as a consequence for Private W’s 

decision not to return his pages. She also testified that he 

threatened to revoke her Gold Pass status, which would require 

her to remain on base. 

 The facts preceding each of the sexual encounters in this 

case differ significantly from those of United States v. Clark, 

35 M.J. 432, 435 (C.M.A. 1992), and Simpson, 58 M.J. at 377, 

upon which the Government relies. In Clark, the evidence 

supported findings that the appellant confined the victim in an 

isolated area in a small shed with brick walls and a metal door 

and that he positioned himself between the door and the victim. 

35 M.J. at 433-35. In Simpson, the evidence supported findings 

that the appellant refused to accept verbal and physical 

indications that his victims were not willing participants and 

that he used his authority over the victims to issue orders that 

placed them in the isolated locations where the charged rapes 

occurred. 58 M.J. at 377. In this case, the sexual encounters 

took place in hotel rooms to which Private W traveled 

unaccompanied by Bright after agreeing to meet him for sex. 

 We next consider whether the record could support a finding 

that resistance was overcome by threats of death or grievous 

bodily injury. We conclude that the record could not support 

such a finding. There is no evidence that the extra physical 
United States v. Bright, No. 07-0269/AR 

19

training endured by the platoon, while no doubt grueling, 

created a risk of death or grievous bodily injury. Nor could a 

reasonable factfinder infer that the heated statements Bright 

made in formation or in his office when he addressed Private M’s 

and Private W’s performance as squad leaders conveyed threats of 

death or grievous bodily harm if Private W resisted his sexual 

advances. 

 Indeed, Private W never testified that Bright threatened 

her with death or grievous bodily harm. Rather, when given an 

opportunity to explain the threats at issue, Bright was explicit 

that: “He threatened to take away my pass status and he 

threatened to keep me on lock down for the entire eight months 

that I was at Bravo Company.” She subsequently reiterated this 

concern: “[H]e told me he would take away my pass status and 

that I’d be locked down at Bravo company for the entire time -- 

for the entire time that I would be there. And I didn’t want to 

do that and that life would be a living hell.” 

 We do not question that Bright’s conduct -- an egregious 

abuse of his position for which he was charged and convicted of 

maltreatment -- was criminal. However, we cannot conclude that 

a reasonable factfinder could find that the particular 

circumstances involved in this case show that “resistance [was] 

overcome by threats of death or great bodily harm” necessary to 

sustain a conviction for rape. MCM pt. IV, para. 45.c.(1)(b). 
United States v. Bright, No. 07-0269/AR 

20

 For all the reasons stated above, we hold that a reasonable 

factfinder could not find that the evidence establishes lack of 

consent beyond a reasonable doubt. Accordingly, we hold that 

the evidence is not legally sufficient to support the three rape 

specifications. Because our legal conclusions regarding the 

element of lack of consent resolves the question of legal 

sufficiency, we do not consider the matter of constructive 

force. 

DECISION 

 As the evidence in this case is legally insufficient to 

support convictions for rape on February 8, 2002, February 15, 

2002, and April 5, 2002, the findings of guilty as to Charge I, 

Specifications 2, 3, and 5 are set aside. The remaining 

findings are affirmed. The record of trial is returned to the 

Judge Advocate General of the Army for remand to the United 

States Army Court of Criminal Appeals. The lower court may 

reassess the sentence or order a rehearing on sentence, as 

appropriate.