UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

J.A. FISCHER, B.T. PALMER, T.H. CAMPBELL

Appellate Military Judges

UNITED STATES OF AMERICA

v.

ALEXANDER LOPUCHIN

AEROGRAPHER'S MATE THIRD CLASS (E-4), U.S. NAVY

NMCCA 201400270

GENERAL COURT-MARTIAL

Sentence Adjudged: 20 March 2014.

Military Judge: CAPT R.B. Blazewick, JAGC, USN.

Convening Authority: Commander, Navy Region Southeast, 

Jacksonville, FL.

Staff Judge Advocate's Recommendation: LCDR N.O. Evans,

JAGC, USN.

For Appellant: Frank Spinner, Esq.; Maj Benjamin Robles, 

USMC; LT Jessica Ford, JAGC, USN.

For Appellee: Maj Tracy Holtshirley, USMC; Capt Cory 

Carver, USMC.

24 September 2015

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OPINION OF THE COURT 

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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS 

PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

A general court-martial composed of members with enlisted 

representation convicted the appellant, contrary to his pleas, 
2

of sexual assault1 in violation of Article 120, Uniform Code of 

Military Justice, 10 U.S.C. § 920. The members sentenced the 

appellant to sixty days’ confinement, reduction to pay grade E1, and a dishonorable discharge. The convening authority (CA) 

approved the sentence as adjudged.

The appellant raises two assignments of error (AOE): (1) 

his conviction is legally and factually insufficient; and (2) 

his trial defense counsel were ineffective when they failed to 

call a potentially exculpatory witness.

After carefully considering the record of trial and the 

parties’ submissions we are convinced that the findings and 

sentence are correct in law and fact and that no error 

materially prejudicial to substantial rights of the appellant 

occurred. Arts. 59(a) and 66(c), UCMJ.

Background

Airman First Class (A1C) HW, USAF, and the appellant first 

met in late January 2013 at the Air Force Base where they were 

both undergoing training. The following night, a Saturday, A1C 

HW and several fellow trainees, both male and female, rented a 

room at a local hotel where they drank alcohol and socialized. 

The appellant also attended that gathering as an invited guest. 

At approximately 2230 that evening, A1C HW and two male 

classmates, A1C DM and A1C MM, went to a different hotel which 

had a casino and nightclub. They invited others in the room to 

join them and only the appellant decided to go along.

A1C HW testified that before leaving for the 

casino/nightclub she drank approximately 5-6 mixed drinks 

containing vodka, a double shot of rum, and 3-4 beers.2

 A1C HW 

also testified that she felt like she was starting to get drunk 

at that point.3

 Witnesses described A1C HW as being tipsy and 

having a flushed face, slurred speech, talking and laughing 

loudly, and stumbling once before leaving.4

 But all the 

 

1 The appellant was charged with a single specification of sexual assault for 

penetrating [the victim’s] vulva with his penis when she was incapable of 

consenting due to alcohol impairment. 

2 Record at 372.

3 Id. at 369.

4 Id. at 601, 795, 922.
3

witnesses agreed that she was not too intoxicated to go to the 

casino/nightclub.

When the group arrived at the casino/nightclub, A1C HW and 

the appellant went inside while A1C DM and A1C MM smoked

cigarettes outside. A1C HW testified that she and the appellant

continued to drink alcohol and danced for one song. On crossexamination A1C HW admitted the dancing included “grinding” and

her “butt” pushing into the appellant’s “crotch.”5

 A1C HW also

testified that she soon stopped dancing because she was having 

trouble supporting herself and felt like her brain was getting 

fuzzy.6

 She and the appellant then looked for A1C DM and A1C MM 

and after being unable to locate them, returned to the club 

where A1C HW ordered and drank a “trash can,” a mixed drink 

containing multiple types of alcohol.7

 

Near the end of the evening, A1C HW and the appellant 

reconnected with A1C DM and A1C MM in the casino lobby. A1C DM 

and A1C MM both testified that by then A1C HW was clearly drunk, 

slurring her words, and having a hard time standing. They also 

testified that the appellant was holding A1C HW upright and the 

appellant did not appear intoxicated.8 A1C DM and A1C MM told 

A1C HW and the appellant to briefly wait in place while A1C DM 

used the bathroom and A1C MM cashed out his casino chips. When 

they returned a few minutes later A1C HW and the appellant were 

gone. A1C DM and A1C MM unsuccessfully attempted to find A1C HW 

and the appellant over the next 1-2 hours, included searching 

the casino/nightclub and calling A1C HW and the appellant. But 

all of the calls went directly to voicemail.9 Instead of waiting 

for A1C DM and A1C MM, the appellant and A1C HW returned to the 

original hotel and the appellant rented a room.10

A1C HW testified that the next morning she awoke completely 

naked and in bed with the appellant, who was also naked.11 She 

stated that she collected her clothes from around the room and 

 

5 Id. at 470-71.

6 Id. at 379.

7 Id. at 383.

8 Id. at 799-800, 801, 870, 927-29, 931, 995.

9 Id. at 932-34.

10 Prosecution Exhibits 1 and 2.

11 Id. at 388-390.
4

went to the bathroom where she observed a hickey on her neck and 

felt soreness in her vagina.12 A1C HW also testified that her 

last memory from the prior night was being slumped in a chair in 

the original hotel lobby and the appellant then helping her into 

an elevator.13 She recalled feeling extremely intoxicated and 

tired at that time and wanting to go to sleep. While in the 

bathroom A1C HW dressed and she and the appellant then returned 

to the original party room. Once there a group including A1C 

DM, A1C MM, A1C HM, and the appellant, among others, went to 

breakfast. A1C HM testified that while at breakfast, the 

appellant pulled her aside and told her that they had protected 

sex the previous night and then he asked [her] not to call the 

SARC (Sexual Assault Response Coordinator).14 The next day, A1C 

HW spoke to the SARC, gave a statement to a criminal 

investigator, and underwent a sexual assault forensic 

examination. 

Legal and Factual Sufficiency

The appellant asserts that his sexual assault conviction is 

legally and factually insufficient. We review issues of factual 

and legal sufficiency de novo. Art. 66(c), UCMJ; United States 

v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The test for 

legal sufficiency is whether, viewing the evidence in the light 

most favorable to the prosecution, “‘any rational trier of fact 

could have found the essential elements of the crime beyond a 

reasonable doubt.’” United States v. Brown, 55 M.J. 375, 385 

(C.A.A.F. 2001) (quoting Jackson v. Virginia, 443 U.S 307, 319 

(1979)). “[I]n resolving questions of legal sufficiency, we are 

bound to draw every reasonable inference from the evidence of 

record in favor of the prosecution.” United States v. Barner, 

56 M.J. 131, 134 (C.A.A.F. 2001) (citations omitted). The test 

for factual sufficiency is “whether, after weighing the evidence 

in the record of trial and making allowances for not having 

personally observed the witnesses, [we are] convinced of the 

accused’s guilt beyond a reasonable doubt.” United States v. 

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

unique appellate role, we take “a fresh, impartial look at the 

evidence,” applying “neither a presumption of innocence nor a 

presumption of guilt” to “make [our] own independent 

determination as to whether the evidence constitutes proof of 

 

12 Id. at 389.

13 Id. at 386-87.

14 Id. at 395, 523.
5

each required element beyond a reasonable doubt.” Washington, 

57 M.J. at 399.

AC1 HW testified that she had no memory of the sexual 

assault, but maintained that she would never willingly have sex 

with the appellant. During cross-examination she conceded,

based on having no memory of what occurred in the hotel room

before she awoke, it was possible she consented to sexual 

activity with the appellant.15 The appellant contends that AC1 

HW’s concession in this regard amounts to reasonable doubt and 

therefore the Government failed to prove the offense.16 We 

disagree. 

The Government presented substantial evidence of AC1 HW’s 

intoxicated state. She drank alcohol consistently from dinner, 

at 1800, up to a point close to when she left the 

casino/nightclub with the appellant approximately six hours 

later. The Government’s toxicology expert reasonably estimated 

that she had a blood alcohol content somewhere “between a mid-.2 

and up to a .30” by the end of the night.17 The expert also

testified that at such a level an individual would display 

“staggering gate, impaired balance, slurred speech, . . . slowed 

reaction times, impaired thought processes, [and] impaired 

perceptions . . . .”18 The expert’s description is consistent

with AC1 DM and AC1 MM’s observations of AC1 HW when they 

reconnected with her and the appellant in the casino. AC1 DM 

and AC1 MM also both testified that the appellant was physically 

assisting AC1 HW to stand at that time and that he did not 

appear to be intoxicated. Thus, it is reasonable to infer that 

by the evening’s end, the appellant was fully aware of the 

significant amount of alcohol AC1 HW consumed and her highly 

intoxicated state. But even after AC1 DM and AC1 MM told them 

to wait in place, the appellant left with AC1 HW and booked a 

separate room in the same hotel where the appellant knew her to 

be staying with friends. The appellant also did not answer his 

phone when AC1 DM attempted to call him, and then confessed to 

AC1 HW that they had sex and asked her not to report it to the 

SARC, demonstrating his consciousness of guilt.

 

 

15 Id. at 479, 553.

16 Appellant’s Brief of 18 Dec 2014 at 7.

17 Record at 686.

18 Id.
6

“A sleeping, unconscious, or incompetent person cannot 

consent.” MCM, Part IV, ¶ 45(g)(8)(B). AC1 HW’s excessive 

alcohol consumption coupled with her inability to support 

herself and stand at the end of the night is strong evidence 

that she was sufficiently incapacitated by intoxication to lack 

the cognitive ability to appreciate the nature of the conduct in 

question and communicate a decision regarding that conduct to 

the appellant. We find compelling evidence that the appellant 

was aware of AC1 HW’s intoxicated state and intentionally acted 

to take advantage of her incapacitated condition. 

We have reviewed the record of trial, paying particular 

attention to the evidence and reasonable inferences that can be 

drawn therefrom. In viewing the evidence in the light most 

favorable to the Government, we conclude a rational factfinder 

could have found beyond a reasonable doubt that the appellant 

committed the offense. Having reviewed the entire record and 

making allowances for not personally observing the witnesses, we 

ourselves are convinced of the appellant’s guilt beyond a 

reasonable doubt.

Ineffective Assistance of Counsel

The appellant also alleges that his trial defense counsel 

performed ineffectively by failing to call Lance Corporal (LCpl) 

AC as a defense witness on the merits. LCpl AC filed a posttrial affidavit stating: (1) he is a friend of the appellant; 

(2) he was interviewed by the appellant’s trial defense counsel; 

(3) he was present and available to testify at trial; (4) if 

called as a witness he would have testified that he observed and 

used his cellular phone to photograph pictures of a hickey on 

the appellant’s neck and scratches on the appellant’s back 

shortly after the alleged sexual assault; (5) for an unknown 

reason he was unable to preserve the photos on his phone and no 

longer possessed the phone at the time of trial; (6) 

nevertheless he could still have testified to his observations; 

and (7) he was never called as a witness in the appellant’s 

court-martial.19

We review “questions of deficient performance and prejudice 

de novo.” United States v. Gutierrez, 66 M.J. 329, 330-31 

(C.A.A.F. 2008) (citations omitted). “In order to prevail on a

claim of ineffective assistance of counsel, an appellant must 

demonstrate both (1) that his counsel’s performance was 

 

19 Appellant’s Motion to Attach of 6 May 2015, LCpl AC affidavit of 16 Dec 

2014.
7

deficient, and (2) that this deficiency resulted in prejudice.” 

United States v. Green, 68 M.J. 360, 361 (C.A.A.F. 2010)

(citations omitted). 

Generally counsel are presumed to be competent. United 

States v. Cronic, 466 U.S. 648, 658 (1984). This presumption is 

rebutted only when there exists a showing of specific errors 

made by defense counsel that are unreasonable under prevailing 

professional standards. United States v. Davis, 60 M.J. 469, 

473 (C.A.A.F. 2005); see also Strickland v. Washington, 466 U.S. 

668, 688 (1984) (finding that the Sixth Amendment entitles 

criminal defendants to representation that does not fall “below 

an objective standard of reasonableness” in light of “prevailing 

professional norms”). 

We find that the appellant has not met his burden of 

demonstrating his trial defense counsel were ineffective. The 

appellant’s contention that the proposed witness’ testimony 

would support the inference of AC1 HW’s consent to the sexual 

act is tenuous. The photographs purportedly documenting marks 

on the appellant were no longer available at the time of trial. 

And, even if LCpl AC would have testified that he saw marks on

the appellant, he viewed them days later and could not confirm 

their source. Given the inconclusive nature of the potential 

testimony, trial defense counsel were well within their 

discretion to not call the witness. The appellant has neither 

offered other evidence of defense counsels’ deficiency, nor 

shown this choice was unreasonable. 

Even assuming deficient counsel performance, we do not find 

the alleged inaction to be prejudicial to the appellant or the 

overall outcome of the trial. Prejudice requires that “[t]he 

defendant . . . show that there is a reasonable probability 

that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different.” Strickland, 466 U.S. at 

694. A reasonable probability is a probability sufficient to 

undermine confidence in the outcome. Id. We are convinced of 

the legal and factual sufficiency of the case, and do not find 

that the LCpl AC’s proposed testimony undermines that conclusion 

or that the case would have been decided differently at trial.
8

 Conclusion

The findings of guilty and the sentence as approved by the 

CA are affirmed.

For the Court

 

 

 

R.H. TROIDL

Clerk of Court