## UNITED STATES ARMY COUR T 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: Colone l 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

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

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

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 batt ery in violation of Arti cles 120 and 128, Uniform Code of Military Justice [h ereinafter UCMJ], 10 U.S. C. §§ 920, 928 (2006 & Supp. IV 2011). The co nvening 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, UC MJ. Appellant assigns two erro rs and raises several matters pursuant to United States v. Grostefon

, 12 M.J. 431 (C.M.A. 1982). We hold appellant’s as sertions pursuant to Grostefon are without merit. We agree with appellant that the evidence is factually insufficient to support his conviction fo r wrongful sexual contact. See United States v. Washington , 57 M.J. 394, 399 (C.A.A.F. 2002 ). The governmen t did not prove beyond a reasonable doubt that appellant pr essed his geni talia against the buttocksROSE — ARMY 20130068

2 of the alleged victim. As a result of the relie f we will grant ap pellant, his second assignment of error is rendered moot.

We therefore set aside and dismiss Sp ecification 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 se ntence. 73 M.J. 11, 15-16 (C.A.A.F. 2013). We note there is no dramatic change in th e penalty landscape or exposure. See id. The military judge merged th e 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 re main admissible as aggravation evidence of the as sault consummated by a battery. See Winckelmann

, 73 M.J. at 16. The gravamen of appellant’s offe nses remains his ag gravated sexual assault of the victim while she was substantially incapacitated. See id. Because appellant was tried by a judg e alone, we are more conf ident of the sentence the military judge would have imposed for the remaining offenses. See id. Finally, this
court reviews the records of a substant ial number of courts -martial involving

assaults and sexual offenses and we have extensive expe rience and familiarity with the level of sentences impos ed for such offenses unde r 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, 307-0 8 (C.M.A. 1986), the
sentence is AFFIRMED. All rights, privileges, and propert y, 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 Ju dge PENLAND concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: