## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before BURTON, SALADINO, and HAGLER Appellate Military Judges

UNITED STATES, Appellee

v. Specialist ISIAH K. HALL United States Army, Appellant

ARMY 20160644

Headquarters, United States Army Alaska Sean F. Mangan and Kennet h W. Shahan, Milit ary Judges

Colonel Erik L. Christian sen, Staff Judge Advocate

For Appellant: Lieutenant Colone l Christopher D. Carrier, JA; Major Julie L. Borchers, JA; Captain Oluwaseye Awoniyi, JA (on brief); Lieuten ant Colonel Tiffany D. Pond, JA; Maj or Julie L. Borchers, JA; Captain Oluwa seye Awoniyi, JA (on reply brief).

For Appellee: Colonel Steven P. H aight, JA; Lieutenant Colonel Eric K. Stafford, JA; Major Hannah E. Kaufman, JA ; Captain Jessika M. Newsome, JA (on brief).

8 April 2019

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

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

SALADINO, Judge:

Appellant raises three assignmen ts of error relat ed solely to his conviction for

sexual abuse of a child. We nee d address only o ne. After a ca reful review of the record, we find a dear th of evidence suppor ting appellant’s con viction of sexual

abuse. We therefore hold appellant’ s conviction of that specif ication is factually

insufficient.

A military judge sitti ng as a general court-martial convicted appellant, pursuant to his pleas, of two specifications of assault consumm ated by a battery, three specifications o f assault consummate d by a batt ery upon a child under the age of sixteen years, an d four specifications of aggravated assault , in violation of Article 128, Uniform Code of Military Justi ce, 10 U.S.C. § 928 [UCMJ]. The military judge also convicted appellant, contra ry to his pleas, of one specifi cation of sexual abuse of a child, one specification of s imple assault, seven specific ations of assaultHALL—ARMY 20160644

2 consummated by a battery, one s pecification of ass ault consumma ted by a battery upon a child under the age of sixteen yea rs, and one specificat ion of aggravated assault, in violation of Artic les 120b and 128, U CMJ. The mili tary judge sentenced appellant to a d ishonorable disch arge, eleven years of confinem ent, and reduction to the grade of E-1. The c onvening authority a pproved appellant’s sentence to a dishonorable discharge , ten years and elev en months of confinem ent, and reduction to the grade of E-1. Appellant was credited with one day again st his sen tence to
confinement.

On brief, appellant ch allenges only his co nviction of sexually abusing a

child. 1 We agree with appellant that hi s conviction of sexually abusi ng a child was not proven beyond a reasonable doubt. We set aside and dismiss appellant’s

conviction of that ch arge and specification and reassess his se ntence accordingly.

BACKGROUND

Appellant was the hu sband and father of a family of six. Over a period of several years, he perpetrated terrible violence against his wif e and four children. After a particularly brutal assault by appellant against his wi fe on Christmas Day, 2013, one of appellant’ s children called th e police. After the police responded to the initial call, further investigat ion revealed appellant had brut ally abused his family for years. One allega tion stood out a s different from appellan t’s other acts of violence: appellant’s wife indicated that their three-year-old daughter, LH, reported that appellant had tou ched her “cukolotch”—t he word LH used to refer to her genital

area.

Subsequent investigation resulte d in mixed reports from LH abou t the nature of the alleged touch ing. The government e lected to charge appe llant with three specifications under article 120 b, UCMJ. Specif ication 1 of Ch arge I alleged appellant penetrated LH’s vulv a “with a pink object.” Specifica tion 2 alleged appellant penetrated LH’s vulva “with an object identified as a hanger.” Specification 3 alleged appellant committed a lew d act by touch ing LH’s vulva “with a substance identified as pink glue.”

Appellant was acquitt ed of Specification 1 a nd Specification 2. He was convicted of Specification 3, but the military judge acquitted him of the words “with a substance identified as pink glue.” Thus, appellant was conv icted of committing a lewd act by touching LH’s vulva , and the modality of the touchi ng was unspecified.

1 We have considered the matters personally raised by appellant under United States v. Grostefon , 12 M.J. 431 (C.M.A. 19 82), and find the y merit no relief.HALL—ARMY 20160644

3 LAW AND DISCUSSION

Article 66, UCMJ, est ablishes our statutor y duty to review a re cord of trial for legal and fac tual sufficiency de novo. United States v. Walters , 58 M.J. 391, 395 (C.A.A.F. 2003). We may affirm onl y those findings of guilt th at we find correct in

law and fact and determ ine, based on the entire record, should be affirmed. Id

.
In weighing factual sufficiency, we take “a fresh, impartial lo ok at the evidence,” applying “neither a pr esumption of innocence nor a p resumption of guilt.” United States v. Washington , 57 M.J. 394 , 399 (C.A.A.F. 200 2). To affirm a conviction, “after weighing the ev idence in the record of trial and making allowances for not having persona lly observed the witnesses, [w e must be] convinced of [appellant’s] guil t beyond a reaso nable doubt.” United States v.

Turner , 25 M.J. 324, 325 (C.M.A. 1987).

The military judge convicted app ellant of touching LH’s vulva, but he did not specify how. 2 To various adults, LH reported that appellant touched her wit h “pink glue,” a “green hanger,” and som e other “pink” object. The mil itary judge acquitted appellant of the charges or charged language relating to each o f these specif ic items.

We have scoured the record to ascertain the military judge’s ba sis for convicting appellant of touching LH in a way that constitutes a lewd act, where the touching was neither with a hanger, nor with a substance identi fied as glue, nor with some other pink object. We draw two conclus ions: First, we ca n only speculate as to the theory under which the m ilitary judge convicted appellan t of sexually touching LH. 3 Second—and more fundamenta lly—following a thorough and complete review of the record, we are not convinc ed beyond a re asonable doubt that appellant touched LH in a sexual way at all.

2 We do not mean to sugg est that the modality of touching must b e specified to state

the offense of sexual abuse of a child und er Article 120b. In this case, however, the potential ambiguity of the findings present s other issues, disc ussed below.

3 Our need to speculate as to the t heory under whic h appellant w as convicted raises

serious issues as to o ur ability to review appellant’s convicti on of Specification 3 of Charge I. This is especially true considering the military jud ge acquitted appellant of the three mostly likely means of abusing LH b ased on her sta tements to
interviewers. See generally Walters , 395-97. See also United States v. Swift , 76 M.J. 210, 216 (C.A.A.F . 2017). Because we ultimately find we h ave reasonable doubt that appella nt touched LH in any way that would cons titute a lewd act, we need not attempt to untangle the issue of ambiguou s findings wi th which we might

otherwise have to contend.HALL—ARMY 20160644

4 LH is a child of tende r age who has evident ly lived in dangerou s domestic

circumstances for the first thre e years of her life. Perhaps i t should come as no surprise that she was unable to articulate what happened to her . Despite several professionals attempti ng to assist LH in e xpressing what happen ed to her, we have no clear picture of if , much less how , LH was sexually a bused. During one interview, LH reported she was t ouched on her “cukolotch” with “hangers,” “toothpaste,” “bubbles,” and “pa pers.” When aske d if appellant had touched her “cukolotch” with anything else, s he responded “yeah,” and then held up a toy vehicle she had found in the interviewer’s office and proclaime d “with this!”

Appellant was acquitted of penet rating LH’s vulva with a “hange r.” As for “toothpaste,” “bubbles,” and “papers” these words are consisten t with how a very young child might descr ibe diaper oin tment, soap, and wet wipes —three items that parents commonly apply t o the private areas of their infants fo r reasons of hygiene. We are merely speculating as to what LH might have meant when s he said she was

touched with these items. In a way, that is the point—based on our review of the evidence in the record, any hypothesis as to what LH was attemp ting to convey is speculative. Such speculation si mply cannot carry the burden o f proof beyond a

reasonable doubt.

To be clear, LH canno t be blamed in any way for her inability t o articulate what, if anything, ha ppened to her. She is a young child. Nei ther, however, can we affirm appellant’s conviction o n nothing more tha n LH’s underst andably incomplete reports. In some such cases, other evidence fills the gaps in a child’s incomplete report. This i s not one of those cases.

We may only affirm convictions t hat we ourselves are convinced have been proven beyond a reasona ble doubt. We have r eviewed the evidenc e, and taken into consideration that the military judge saw and heard the witness es and we did not. As to appellant’s conv iction of sexually a busing LH, we find ap pellant’s guilt was not proven be yond a reason able doubt.

CONCLUSION

Appellant’s convicti on of Specification 3 o f Charge I and Charg e I are SET ASIDE and both Specifi cation 3 of Charge I an d Charge I are DIS MISSED. The remaining findings of Guilty are AFFIRMED.

To determine whether t o reassess a sentence or order a sentenc e rehearing, we consider the totality of the circumstances presented; whether t here are dramatic changes in the penalty landscape and exposure; wh ether appellan t chose se ntencing by members or a military judge alo ne; whether the nature of the remaining offenses captures the gravamen of criminal conduct include d within the o riginal offenses; whether significant or aggravating circumst ances addr essed at t he court-martialHALL—ARMY 20160644

5 remain admissible and relevant to the remaining offenses; and w hether the remaining offenses are of a type that we have the experience and familiar ity with to reliably

determine what sentence would have been imposed at trial. See United States v.

Winckelmann , 73 M.J. 11, 1 5-16 (C.A.A.F. 2013), United States v. Sales , 22 M.J. 305, 307-08 (C. M.A. 1986).

Applying the principles of Sales and Winckelmann , we conclude it is appropriate for us to reassess appellant’s sentence rather than return this case for a sentence rehearing. O ur decision changes the penalty landscape by lessening appellant’s maximum exposure t o confinement from forty-five yea rs and nine months, to twenty-five years and n ine months. We recognize the significance of the change to the penalty landscape. We also recognize that the ma ximum punishment for appellant’s remaining crimes remains in a range reserved fo r serious felony offenses. Further, be cause appellant was s entenced by a milita ry judge as opposed to members, we are more certain of how the court-martial would have sentenced appellant on the rem aining offenses. See Winckelmann 73 M.J. at 16. We are familiar with the remaining offe nses and have the experience to reliably determine

what sentence would have been imposed at trial.

Although a sexual offens e against a child is a very serious cri me, this was an

unusual case wherein the sheer volume and gravit y of appellant’ s assaults against his family form the overwhelming we ight of his misconduct. Appella nt’s violent crimes span multiple years. He was co nvicted of strangling his wife t hree times, slamming her head against a concrete floo r twice, stompi ng on her head, throwing her down a flight of stairs, and beating n early every membe r of his househ old. We are confident that the military judg e would have imposed a sentence at least as severe as that

which we affirm in th is decision for appel lant’s remaining conv ictions.

Reassessing the sentence on the basis of the errors noted, the entire record, and in accordance with the principles of Sales and Winckelmann , we AFFIRM only

so much of the senten ce as provides for a di shonorable discharg e, nine years of confinement, and reduct ion to the grade of E-1. All rights, pr ivileges, an d property of which appellant ha s been deprived by vir tue of that portion of his sentence set aside by this decision are ordered restored. See UCMJ arts. 58b(c ) and 75(a).

Senior Judge BURTON an d Judge HAGLER concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: