UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

LIND, KRAUSS, and PENLAND 

Appellate Military Judges 

UNITED STATES, Appellant 

v. 

Specialist RILEY C. ROSE 

United States Army, Appellee 

ARMY 20130068 

Headquarters, Fort Stewart 

Tiernan P. Dolan, Military Judge 

Lieutenant Colonel Francisco A. Vila, Staff Judge Advocate 

For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain James 

S. Trieschmann, Jr., JA (on brief). 

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA; 

Major Daniel D. Derner, JA; Captain Rachael T. Brant, JA (on brief). 

24 October 2014 

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SUMMARY DISPOSITION 

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LIND, Senior Judge: 

A military judge sitting as a general court-martial convicted appellant, 

contrary to his pleas, of aggravated sexual assault, wrongful sexual contact, and 

assault consummated by a battery in violation of Articles 120 and 128, Uniform 

Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 920, 928 (2006 & Supp. 

IV 2011). The convening authority approved the adjudged sentence of a badconduct discharge and thirty-six months confinement. 

This case is before the court for review under Article 66, UCMJ. Appellant 

assigns two errors and raises several matters pursuant to United States v. Grostefon, 

12 M.J. 431 (C.M.A. 1982). We hold appellant’s assertions pursuant to Grostefon

are without merit. We agree with appellant that the evidence is factually insufficient 

to support his conviction for wrongful sexual contact. See United States v. 

Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The government did not prove 

beyond a reasonable doubt that appellant pressed his genitalia against the buttocks 
ROSE — ARMY 20130068 

2

of the alleged victim. As a result of the relief we will grant appellant, his second 

assignment of error is rendered moot. 

We therefore set aside and dismiss Specification 3 of Charge I. The 

remaining findings of guilty are AFFIRMED. 

Applying the factors in United States v. Winckelmann, we are confident we 

can reassess appellant’s sentence. 73 M.J. 11, 15-16 (C.A.A.F. 2013). We note 

there is no dramatic change in the penalty landscape or exposure. See id. The 

military judge merged the offenses of wrongful sexual contact and assault 

consummated by a battery for sentencing, therefore appellant’s maximum sentence 

to confinement is reduced from 31 years to 30 years and six months. See Manual for 

Courts-Martial, United States (2008 ed.), pt. IV, ¶¶ 45.f(2), (7), 54.e(2). The 

aggravating circumstances of the wrongful sexual contact offense remain admissible 

as aggravation evidence of the assault consummated by a battery. See Winckelmann, 

73 M.J. at 16. The gravamen of appellant’s offenses remains his aggravated sexual 

assault of the victim while she was substantially incapacitated. See id. Because 

appellant was tried by a judge alone, we are more confident of the sentence the 

military judge would have imposed for the remaining offenses. See id. Finally, this 

court reviews the records of a substantial number of courts-martial involving 

assaults and sexual offenses and we have extensive experience and familiarity with 

the level of sentences imposed for such offenses under various circumstances. See 

id. 

 Reassessing the sentence on the basis of the error noted, the entire record, and 

the principles of United States v. Sales, 22 M.J. 305, 307-08 (C.M.A. 1986), the 

sentence is AFFIRMED. All rights, privileges, and property, of which appellant has 

been deprived by virtue of that portion of the findings set aside by this decision, are 

ordered restored. 

Judge KRAUSS and Judge PENLAND concur. 

 FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: