UNITED STATES ARMY COURT 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 Training Center and Fort Polk 

Gregory A. Gross, Military Judge 

Colonel Samuel A. Schubert, Staff Judge Advocate 

For Appellant: Major Christopher D. Coleman, JA; Captain Amanda McNeil 

Williams, JA; Mr. Frank J. Spinner, Esquire (on brief); Mr. Philip D. Cave, Esquire 

(on supplemental brief); Captain Matthew D. Bernstein, JA.

For Appellee: Lieutenant Colonel A.G. Courie III, JA; Major Scott L. Goble, JA; 

Captain Linda Chavez, JA (on brief). 

30 September 2016 

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MEMORANDUM OPINION

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

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

PENLAND, Judge: 

 A panel composed of officer and enlisted members sitting as a general courtmartial convicted appellant, contrary to his pleas, of one specification of rape, one 

specification of sexual assault, one specification of forcible sodomy, one 

specification of assault consummated by a battery, and two specifications of 

adultery, in violation of Articles 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 discharge, confinement for twenty years, and 

forfeiture of all pay and allowances. The convening authority approved the 

adjudged sentence. 

 

1

 In accordance with appellant's plea, the military judge found him guilty of one 

specification of false official statement, 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 matters personally submitted under United States v. 

Grostefon, 12 M.J. 431 (C.M.A. 1982); one merits discussion but no relief. Finally, 

we briefly discuss and grant relief based on an unreasonable multiplication of 

charges. 

BACKGROUND 

 Appellant engaged in sexual 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 assault, 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 she was passing by him, he grabbed her and 

said “[l]et me buy you a shot.” After spending an evening drinking shots with 

appellant, her husband picked her up and took her home. Over the next week, JM 

and appellant exchanged texts, some of which 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 difficulties. Once 

at appellant’s barracks room, the two proceeded to drink bourbon and talk. After 

most of the bourbon was gone, JM agreed to appellant’s offer for a backrub. She 

testified the massage was “rough and scary.” JM decided to leave, at which point 

appellant pushed her on his bed and exposed his 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 able to kick appellant off of her, and then 

left the barracks. She eventually made it back to her home, but couldn’t remember 

the ride. She later reported the assault to a neighbor and her husband. 

At trial, appellant admitted engaging in sexual intercourse with JM, but 

claimed it was consensual. 

On the evening of 5 July 2013, Ms. TW, who was also married to another 

soldier, went alone to the Paradise bar. There she first met appellant when she sat 

next to him at the bar. Over the course of several hours, the two had several drinks 

and danced. They eventually left the bar and TW offered to drive appellant home. 

After swerving and nearly hitting another car, TW pulled over and appellant took the 

wheel. TW testified 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 colloquy between trial counsel and 

TW described what happened 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 [appellant’s] room, 

what can you remember[?] 

A: I remember him being on top of me and choking me. I 

remember being slapped 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 wanted a reaction, but I didn’t 

give it to him. He just looked evil. And I remember being 

flipped over on my stomach and—it’s hard to say. 

Q: Go ahead, just say it. 

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

Q: Did he put his penis anywhere else? 

A: My vagina. 

Q: Which one first? 

A: My vagina. 

Later, in describing her injuries: 

Q: When he put his penis in your butt, 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 was sore, and I was hit in the 

head. And I had scratches 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 teeth marks on TW’s face and 

redness on her rectum. These injuries were documented in various government 

exhibits admitted by the military judge. 

 During his testimony, appellant admitted to engaging in vaginal and anal 

intercourse with TW. He characterized this interaction as “rough” sex and claimed 

TW consented. 

 At the close of evidence on findings, the military judge, without objection by 

either party, provided a standard Military Rule of Evidence [hereinafter Mil. R. 

Evid.] 413 instruction allowing 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, Military Judges’ Benchbook 

[hereinafter Benchbook], para. 7-13-1, n.4 (1 Jan. 2010). The military judge 

specified that the members could only consider such propensity evidence if they first 

determined by a preponderance 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 propensity evidence for 

the offenses involving TW. 

Defense counsel requested a mistake of fact instruction with regard to TM and 

JW. Although the military judge did not specifically rule on the request, he did 

instruct the panel regarding mistake of fact with respect to the specifications of 

sexual assault, both of which alleged the victims were incapable of consent due to 

impairment, and forcible sodomy. However, the military judge did not give the 

mistake of fact instruction with respect to the rape allegation, Specification 1 of 

Charge I, which alleged appellant used unlawful force by “forcing his penis inside 

the vulva of [TW] with physical strength sufficient that she could not avoid or 

escape the sexual conduct.”3

 During closing, government counsel-while arguing she 

did not do so-acknowledged that if TW had consented to the sexual activity, then 

appellant would not be guilty of using “unlawful” force. The panel convicted 

appellant of, inter alia, raping, sexually assaulting and forcibly sodomizing TW, but 

acquitted appellant of sexually 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 the sexual conduct was done by 

using unlawful force beyond a reasonable doubt.” 
SANTUCCI—ARMY 20140216 

5 

 Before sentencing deliberations, the military judge instructed the panel to 

consider the rape and sexual assault specifications involving TW as one for 

sentencing purposes. 

LAW AND DISCUSSION 

A. Military Rule of Evidence 413 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 allegation involving JM.4

 Based on our superior court’s 

decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016), 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). “Whether a panel was 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 constitutional dimension, we 

review the error to determine if it was harmless beyond a reasonable doubt. United 

States v. Kreutzer, 61 M.J. 293, 298 (C.A.A.F. 2005) (citations omitted). “The 

inquiry for determining whether constitutional error is harmless beyond a reasonable 

doubt is whether, beyond a reasonable doubt, the error did not contribute to the 

defendant’s conviction or sentence.” Id. (citations and internal quotation marks 

omitted). 

 Here, the military judge’s Mil. R. Evid. 413 instruction was improper based 

on our reading of Hills. As our superior court noted in that case, “[i]t is antithetical 

to the presumption of innocence to suggest that conduct of which an accused is 

presumed innocent may be used to show a propensity to have committed other 

conduct of which he is presumed innocent.” 75 M.J. at 356. We, however, find 

beyond a reasonable doubt that the error, under the circumstances of this case, was 

harmless and did not contribute to appellant’s conviction or sentence. 

 First, the issue here was not whether sexual contact occurred between TW and 

appellant. Appellant admitted to having vaginal and anal intercourse with TW. The 

injuries suffered by TW, as corroborated by the testimony of a medical provider and 

other witnesses, leave no doubt that TW was not a willing participant. Her 

testimony credibly established, as well, that she was incapable of consenting to this 

conduct due to her extreme state of intoxication. 

 

4

 Appellant assigns two errors on this topic, first alleging error “in considering the 

specifications as propensity evidence” and, second, error regarding the “instructions 

on how the members were to evaluate and use the propensity evidence.” For 

purposes of this decision, we consider them together. 
SANTUCCI—ARMY 20140216 

6 

 Second, the propensity instruction was uni-directional. The panel was not 

instructed inversely, and appellant was acquitted of sexually assaulting JM. The 

instruction only allowed the panel to consider appellant’s rape of TW as evidence 

appellant had a propensity to sexually assault JM. Appellant’s acquittal of sexually 

assaulting JM removed any risk of harm caused by the instruction. Appellant’s 

acquittal of the assault of JM, if anything, shows the members were not confused in 

applying the appropriate burden of proof-beyond a reasonable doubt-as to each 

charged offense. JM’s allegation, in contrast to the allegations involving TW, was 

not supported by corroborative physical evidence. 

B. Mistake of Fact Instruction 

 Appellant personally alleges the military judge erred by not instructing the 

panel on mistake of fact with respect to the rape specification. We agree. See 

United States v. Willis, 41 M.J. 435, 437 (C.A.A.F. 1995). 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 clearly not a situation from which appellant 

could have feasibly claimed an honest, reasonable, mistaken belief that TW was 

consenting to his misconduct. We also note the panel received the mistake of fact 

instruction with respect to the forcible sodomy specification-of which appellant now 

stands convicted-yet defense counsel made no argument that appellant mistakenly 

believed TW consented. Indeed, the defense theory throughout the trial was that TW 

actually consented, not that appellant mistakenly believed 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 instruction as to an affirmative defense is an 

error of constitutional magnitude” which we examine to determine if it is harmless 

beyond a reasonable 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 instruction “’contribute[d] to the [appellant’s] conviction.’” 

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

C. Unreasonable Multiplication 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 exigencies of proof motivated the 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 where 
SANTUCCI—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 Article 66(c), UCMJ, authority to affirm only so much 

of the findings and sentence as “should be approved,” we shall provide relief. We 

give great weight to our determination that under the facts and circumstances 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. 856, 876 (A.C.M.R. 1986). Our 

dismissal is conditional on Specification 2 of Charge I surviving the “final 

judgment” as to the legality 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 decision to conditionally set 

aside and dismiss one specification does not change the penalty landscape. The 

nature of the remaining offenses captures the gravamen of appellant’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 the affirmed findings 

of guilty, we are confident the panel would have adjudged a sentence 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 appellant has been deprived by 

virtue of the portion of the findings set aside by this decision are ordered restored. 

See UCMJ art. 75(a).

Senior Judge CAMPANELLA and Judge HERRING concur. 

FOR THE COURT: 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: