## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before CAMPANELLA, HERRING, and PENLAND Appellate Military Judges

UNITED STATES, Appellee

v. Private E1 ANTHONY V. SANTUCCI United States Army, Appellant

ARMY 20140216

Headquarters, Joint Readiness Tr aining Center and Fort Polk Gregory A. Gross, Military Judge

Colonel Samuel A. Schubert, Staff Judge Advocate

For Appellant: Major Christopher D. Co leman, JA; Captain Amanda McNeil Williams, JA; Mr. Frank J. Sp inner, Esquire (on brief); Mr. Philip D. Cave, Esquire (on supplemental brief); Capt ain Matthew D. Bernstein, JA.

For Appellee: Lieutenant Colonel A.G. C ourie III, JA; Major Scott L. Goble, JA; Captain Linda Chavez, JA (on brief).

30 September 2016

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MEMORANDUM OPINION

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

PENLAND, Judge:

A panel composed of offi cer and enlisted members sitting as a general courtmartial convicted appellant, contrary to hi s pleas, of one speci fication of rape, one specification of sexual as sault, one specification of forcible sodomy, one specification of assault consummated by a battery, and two specifications of adultery, in violation of Ar ticles 120, 125, 128 and 134, Uniform Code of Military Justice [hereinafter UCMJ], 10 U. S.C. §§ 920, 925, 928, 934 (2012). 1 The panel sentenced appellant to a dishonorable disc harge, confinement for twenty years, and forfeiture of all pay and allowances. The conveni ng authority approved the adjudged sentence.

1 In accordance with appell ant's plea, the military ju dge found him guilty of one specification of false official statemen t, in violation of Article 107, UCMJ.SANTUCCI—ARMY 20140216

2 We review this case under Article 66(c), UCMJ. Appellant raises three assignments of error, two of which merit discussion but no relief. We have considered appellant’s matter s personally s ubmitted under United States v. Grostefon

, 12 M.J. 431 (C.M.A. 1982); one merits discussion but no relief. Finally, we briefly discuss and gran t relief based on an unreas onable multiplication of charges.

BACKGROUND

Appellant engaged in se xual intercourse with JM , between 19-20 April 2013, and TW on 6 July 2013. These two events led to his prosecution for, inter alia

, sexual assault with respect to JM and rape, sexual assaul t, and forcible sodomy with respect to TW. 2

Ms. JM, who was married to another soldier, testified that she first met appellant at the Paradise bar when, as sh e was passing by him, he grabbed her and said “[l]et me buy you a shot .” After spending an ev ening drinking shots with appellant, her husband picked her up and took he r home. Over th e next week, JM and appellant exchanged texts, some of wh ich were flirtatious. On 20 April 2013, JM agreed to hang out with appellant in his barracks room. She testified she wanted somebody to talk to, as she and her husband were having marital difficu lties. Once at appellant’s barracks room, the two proc eeded to drink bourbo n and talk. After most of the bourbon was gon e, JM agreed to appellant’s offer for a backrub. She testified the massage was “ro ugh and scary.” JM decided to leave, at which point appellant pushed her on his bed and exposed hi s penis. At some point after that, she fell asleep. JM, who by then was drunk, next remembered appellant on top of her, engaging in sexual intercourse. She was ab le to kick appellant off of her, and then

left the barracks. She eventu ally made it back to her home, but couldn’t remember the ride. She later repor ted the assault to a neighbor and her husband.

At trial, appellant admitted engaging in sexual intercour se with JM, but

claimed it was consensual.

On the evening of 5 July 2013, Ms. TW, w ho was also married to another soldier, went alone to the Pa radise bar. Ther e she first met appellant when she sat

next to him at the bar. Over the course of several hours, the two had seve ral drinks and danced. They eventually left the bar and TW offere d to drive appellant home. After swerving and nearly h itting another car, TW pulled over an d appellant took the

wheel. TW testifie d she remembered little after appellant began driving. Appellant

took TW to his barracks at Fort Polk. She didn’t remember the ride or entering the

installation. She testified the next thing she remembered was appellant carrying her up concrete stairs to his room. The following colloq uy between trial counsel and TW described what happen ed once in the room:

2 The forcible sodomy occurred at the same time and place as the rape and sexual

assault.SANTUCCI—ARMY 20140216

3 Q: Now tell us when you went into [appe llant’s] room, what can you remember[?]

A: I remember him being on t op of me and choking me. I remember being slappe d in the face.

Q: What else do you remember?

A: I remember him saying a lot. I remember him just choking me. It’s like he want ed a reaction, but I didn’t give it to him. He just lo oked evil. And I remember being flipped over on my stom ach and—it’s hard to say.

Q: Go ahead, ju st say it.

A: He did me in the butt . It hurt really bad.

Q: Did he put his pe nis anywhere else?

A: My vagina.

Q: Which one first?

A: My vagina.

Later, in describing her injuries:

Q: When he put hi s penis in your but t, did you suffer any injury from that?

A: I remember being in the bathroom and I was bleeding.

Q. Now did you suffer other injuries?

A: I had bruises on my arms . My face was swollen from being slapped. My head wa s sore, and I was hit in the

head. And I had sc ratches on my back. I had bruises on my legs.

[. . .]

A. I was also bitten on my face and my arms.SANTUCCI—ARMY 20140216

4 She later reported the assault to the police.

A subsequent examination of TW by a licensed nurse noted bruises and scratches on her arms, neck, and legs, as well as te eth marks on TW’s face and redness on her rectum. These injuries we re documented in various government exhibits admitted by the military judge.

During his testimony, ap pellant admitted to engagi ng in vaginal and anal

intercourse with TW. He characterized th is interaction as “r ough” sex and claimed

TW consented.

At the close of evidence on findings, th e military judge, wi thout objection by either party, provided a standard Military Rule of Evidence [h ereinafter Mil. R. Evid.] 413 instruction allo wing the members to consider the allegations involving TW as propensity evidence in relation to the sexual assault allegation involving JM.

See Dep’t of Army, Pam. 27- 9, Legal Services, Milita ry Judges’ Benchbook [hereinafter Benchbook], pa ra. 7-13-1, n.4 (1 Jan. 20 10). The mili tary judge specified that the members coul d only consider such propensity evidence if they first determined by a pre ponderance of evidence that appellant raped TW. The government did not request, and the military judge did not provide, a similar instruction for considering the allegation involving JM as prop ensity evidence for the offenses involving TW.

Defense counsel reques ted a mistake of fact instruct ion with regard to TM and JW. Although the mili tary judge did not sp ecifically rule on the request, he did instruct the panel regarding mistake of fact with respec t to the specifications of sexual assault, both of wh ich alleged the victims were incapable of consent due to impairment, and forcible so domy. However, the militar y judge did not give the mistake of fact instruction with respect to the rape allegatio n, Specification 1 of Charge I, which alle ged appellant used unlawful force by “forcing his penis inside the vulva of [TW] with phys ical strength sufficient that she could not avoid or escape the sexual conduct.” 3 During closing, governme nt counsel-whil e arguing she did not do so-acknowledged th at if TW had consented to the sexual activity, then appellant would not be gui lty of using “unlawful” fo rce. The panel convicted appellant of, inter alia , raping, sexually as saulting and forcibly sodomizing TW, but acquitted appellant of sexu ally assaulting JM.

3 The military judge correctly instructed the members that “evidence concerning

consent to the sexual conduct is relevant and it must be considered in determining whether the government has proven the element that th e sexual condu ct was done by using unlawful force bey ond a reasonable doubt.”SANTUCCI—ARMY 20140216

5 Before sentencing deliberations, the military judge instru cted the panel to consider the rape and sexu al assault specifications involving TW as one for sentencing purposes.

LAW AND DISCUSSION

A. Military Rule of Evidence 4 13 Instruction

Appellant asserts the military judge erred by instructing the members they could use the evidence of appellant’s rape of TW as propensity evidence in relation

to the sexual assault al legation involving JM. 4 Based on our superior court’s

decision in United States v. Hills , 75 M.J. 350 (C.A.A.F. 2 016), we agree.

We review a military judge’s decision to admit evidence under Mil. R. Evid.

413 for an abuse of discretion. United States v. Solomon, 72 M.J. 176, 179 (C.A.A.F. 2013). “Whe ther a panel wa s properly instructed is a question of law we

review de novo.” United States v. Ober , 66 M.J. 393, 405 (C .A.A.F. 2008) (citation omitted). Where an instructional error rises to a constituti onal dimension, we

review the error to determ ine if it was harmless beyo nd a reasonable doubt. United

States v. Kreutzer , 61 M.J. 293, 298 (C.A .A.F. 2005) (citations omitted). “The inquiry for determining whethe r constitutional error is ha rmless beyond a reasonable doubt is whether, beyond a re asonable doubt, the error di d not contribute to the

defendant’s convicti on or sentence.” Id. (citations and internal quotation marks omitted).

Here, the military judge’s Mil. R. Ev id. 413 instruction was improper based on our reading of Hills . As our superior cour t noted in that case, “[i]t is antithetical to the presumption of innocence to sugges t that conduct of wh ich an accused is presumed innocent may be used to show a propensity to have committed other conduct of which he is pres umed innocent.” 75 M.J. at 356. We, however, find beyond a reasonable doubt that the error, under the circumstance s of this case, was

harmless and did not cont ribute to appellant’s co nviction or sentence.

First, the issue here wa s not whether sexual contac t occurred between TW and appellant. Appellant admitte d to having vaginal and anal intercourse with TW. The injuries suffered by TW, as corroborated by the testim ony of a medical provider and other witnesses, leave no doubt that TW wa s not a willing participant. Her testimony credibly established, as well, th at she was incapable of consenting to this

conduct due to her extreme state of intoxication.

4 Appellant assigns two errors on this topic, first al leging error “in considering the specifications as propensity evidence” and, second, error regarding the “instructions

on how the members were to evaluate and use the prop ensity evidence.” For purposes of this decision, we consider th em together.SANTUCCI—ARMY 20140216

6 Second, the propensity in struction was uni-directio nal. The panel was not instructed inversely, and ap pellant was acquitted of sexu ally assaulti ng JM. The instruction only allowed the panel to consid er appellant’s rape of TW as evidence appellant had a propens ity to sexually assaul t JM. Appellant’s ac quittal of sexually assaulting JM removed any ri sk of harm caused by th e instruction. Appellant’s acquittal of the assault of JM , if anything, show s the members were not confused in applying the appropriate burden of proof -beyond a reasonable doubt-as to each charged offense. JM’s alle gation, in contrast to the allegations invo lving TW, was not supported by co rroborative physica l evidence.

B. Mistake of Fact Instruction

Appellant personally alle ges the military judge e rred by not instructing the panel on mistake of fact with respect to the rape specificat ion. We agree. See

United States v. Willis , 41 M.J. 435, 437 (C.A.A.F. 1 995). However, we again conclude appellant suffered no prejudice. We so conclude based on the strength of TW’s testimony, corroborated by medical providers and witnesses, regarding the injuries she sustained as a result of his violence on the night in question. Viewing the evidence in its entirety, this was clear ly not a situation fr om which appellant could have feasibly claimed an honest, reasonable, mistaken belief that TW was consenting to his misconduct. We also not e the panel received the mistake of fact instruction with respect to the forcible sodomy specification-of which appellant now stands convicted-yet defens e counsel made no argument th at appellant mistakenly

believed TW consented. Indeed, the defense theory th roughout the trial was that TW actually consented, not that appellant mistakenly believe d she did. While some evidence raised the instructional requirement with respect to rape, we are confident beyond a reasonable doubt that its omission did not contribute to the verdict. “Providing the panel with an incorrect instru ction as to an affirmative defense is an

error of constitutional magnitude” which we examine to determine if it is harmless beyond a reason able doubt. United States v. Chandler , 74 M.J. 674, 685 (C.A.A.F. 2015) (citations omitted). Having done so, we find no reasonable possibility the

lack of a mistake of fact in struction “’contribute[d] to th e [appellant’s] conviction.’”

Id. (quoting United States v. Davis , 73 M.J. 268, 271 (C.A.A.F. 2014).

C. Unreasonable Multip lication of Charges

The findings, as approved by the convening authority, contain an unreasonable multiplication of charges, being the rape and sexual assault of TW (Specifications 1 and 2 of Charge I, respectively). The military judge remedied the problem, in part, by instructing the panel to consider the two offenses as one for sentencing. Perhaps exigen cies of proof motivated th e government’s charging

decision-in which case United States v. Elespuru, 73 M.J. 326, 329-30 (C.A.A.F. 2014), would control-but we are ill-equipped to make that determination whereSANTUCCI—ARMY 20140216

7 defense counsel made no motion for appropriate relief as to findings at trial. Therefore, appellant has forfeited the error.

Nonetheless, under our Artic le 66(c), UCMJ, authority to affirm only so much of the findings and se ntence as “should be approved,” we shall provide relief. We give great weight to our dete rmination that under the fact s and circumstan ces of this case, convictions for rape and sexual assault unreasonably exaggerate appellant’s criminality. United States v. Quiroz , 55 M.J. 334, 338 (C .A.A.F. 2001).

CONCLUSION

Specification 2 of Charge I is conditionally set aside and DISMISSED. See

United States v. Briton , 47 M.J. 195, 203 (C.A.A.F. 1997) (J. Effron concurring);

United States v. Hines

, 75 MJ __, 2016 CCA LEXIS 439, *7-8 fn4 (Army. Ct. Crim. App. 27 Jul. 2016); United States v. Woods , 21 M.J. 8 56, 876 (A.C.M.R. 1986). Our

dismissal is condition al on Specificati on 2 of Charge I su rviving the “final judgment” as to the legal ity of the proceedings. See Article 71(c)(1) (defining final judgment as to the legality of the proceedings).

The remaining findings of guilty are AFFIRMED.

Reassessing the sentence in accordance with the principles of United States v.

Winckelmann , 73 M.J. 11 (C.A .A.F. 2013) and United States v. Sales , 22 M.J. 305, 308 (C.M.A. 1986), the sentence is AFFIRMED. Our decisi on to conditionally set aside and dismiss one specification does not change the penalt y landscape. The

nature of the remain ing offenses captures the grav amen of appell ant’s crimes: raping and forcibly sodomizing TW. We have experience with the types of sentences resulting from cases such as this one, and, based on th e affirmed findings of guilty, we are co nfident the panel woul d have adjudged a se ntence at least as

severe as that which we affirm. We further find the affirmed sentence not inappropriately severe.

All rights, privileges, and property, of which appell ant has been deprived by virtue of the portion of the findings set aside by this deci sion are ordere d restored.

See UCMJ art. 75(a).

Senior Judge CAMPANELLA an d Judge HERRING concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: