dissenting:
45. Black’s Law Dictionary 1399 (6th ed. 1990) defines speculation as “the art of theorizing about a matter to which evidence is not sufficient for certain knowledge.” On the other hand, it defines circumstantial evidence, inter alia, as the “[pjrocess of decision by which court or jury may reason from circumstances known or proved, to establish by inference the principal fact.” Id. at 243. Regardless of the proper demarcation between the two, I disagree with the majority that there was insufficient evidence in this case to infer beyond a reasonable doubt that appellant committed an indecent assault on Nicole D. See generally Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).
46. The majority opinion cites the evidence introduced in this case and concludes that it is not legally sufficient to justify a finding of guilty to indecent assault. In reversing the factual decision of the trial fact-finder as well as a respected appellate court with factfinding powers, the majority concedes that the evidence in this case was “consistent” with indecent assault by a third person. Yet, it concludes that the evidence might also be “consistent” with the victim’s own drunken semi-conscious stumblings on the evening in question. ¶ 38. I note, however, that it is well established that consistency of the evidence presented at trial with some theory of innocence does not preclude upholding a conviction on appeal. See United States v. Blocker, 32 MJ 281, 285 (CMA 1991).* Here, clear and sufficient circumstantial evidence supports the Court of Military Review’s findings of guilty to the lesser-included offense of indecent assault, and that is all which is required. United States v. Hart, 25 MJ 143, 147 (CMA 1987), cert. denied, 488 U.S. 830, 109 S.Ct. 85, 102 L.Ed.2d 61 (1988); Hilton v. State, 659 S.W.2d 154, 157 (Tex.App. 2 Dist.1983). See also United States v. Williams, 34 MJ 250, 251-52 (CMA), cert. denied, — U.S. -, 113 S.Ct. 379, 121 L.Ed.2d 289 (1992).
47. The majority more particularly opines that, “[wjhile the evidence, construed in the light most favorable to the prosecution, would show that appellant expressed a desire for sexual contact with Nicole, there is no testimony and no physical evidence suggesting that he acted on that desire.” ¶40. I disagree with this reading of the record.
48. The evidence of Nicole’s physical condition is uncontroverted. The victim testified *146as to the condition of her body after her encounter with appellant and his drunken enlistment processing spree. She stated:
Q. What’s the next thing that you remember?
A. Waking up in the morning.
Q. Waking up in the morning?
A. Yes.
Q. When you woke up were you on top of the sheets or were you under the sheets; do you remember?
A. I don’t know. I’m not sure.
Q. How did you feel when you woke up the next morning?
A. Overly tired. My head was still spinning and sore.
Q. Where were you sore, Nikki?
A. In between my legs.
Q. In your private area?
A. Yes.
Q. How sore were you?
A. Ah—
Q. Was it a little bit sore, medium amount of sore or real sore?
A. It was sore, it was real sore.
Q. Now, you mentioned before that you were on the last day of your period that day, right?
A. Yes.
Q. Now, was this soreness that you felt, was it the type of soreness that you might feel with your period?
A. No.
Q. Did you use the bathroom at all that morning?
A. Yes.
Q. Did you feel any particular—or different sensation when you went to the bathroom?
A. Yes.
Q. What did you feel?
A. I went to mínate and it burned.
Q. Had it been burning earlier, the day before?
A. No.
Q. Or the day before that?
A. No.
Q. Does it ever burn when you urinate when you have your period?
A. No.
Q. Was either Corporal Cage or Sergeant
Perez in the apartment when you woke up
the next morning, when you first woke up?
A. Yes.
Q. Which one?
A. Corporal Cage.
Q. How about Sergeant Perez?
A. No.
49. Clearly, this was some evidence concerning the victim’s physical condition from which it could be inferred that her private parts were at least touched. See generally United States v. Williams, supra (evidence of victim contracting gonorrhea). In addition, as conceded by the majority (¶ 40), there was other evidence of a motive and intent on appellant’s part to engage in sexual acts with the victim in this case {i.e., appellant’s words to the victim about being “on the pill” and “Nikki, I want you” and his words to Sgt Perez, “Give me just five minutes”). Finally, there was evidence that appellant had ample opportunity to commit an indecent assault on the victim during the periods in which she was under his exclusive control in his apartment. See Hilton v. State, 659 S.W.2d 154.
50. I realize that this case would have been much easier to sustain if the physical pain in her vaginal area had caused this school girl to awake during the sexual assault upon her. See People v. McCoy, 156 Ill.App.3d 194, 108 Ill.Dec. 871, 875, 509 N.E.2d 567, 571 (1 Dist.1987); State v. Reuer, 396 N.W.2d 668 (Minn.App.1986). However, appellant should not be given immunity for his conduct or clemency simply because he was successful in rendering his victim unconscious through drink. Moreover, the majority’s tortured reading of this record to find that perhaps Nicole’s physical injuries were caused by her drinking and not his lust is simply irrelevant. See generally United States v. Ortiz, 23 F.3d 21, 24-25 (1st Cir. 1994). In sum, appellant’s conviction for indecent assault was not based on “pure speculation” (¶ 40) but on rational analysis of the evidence of record by properly authorized factfinders.
*14751. To summarize, the majority is facing an uphill road in its reversal of this case. Case law, in particular, makes the majority’s journey a steep one, when as here a trial factfinder (the military judge) convicts on certain evidence and a special appeals court with powerful factfinding powers (the Navy-Marine Corps Court of Military Review) has found that the evidence in the record support the conviction. I have no doubt that the judges in the majority have the best intentions in doing their duty as they see it in this case. To me, however, it is clear that they have inadvertently fallen into a common trap for appellate judges in close factual cases— they are viewing the evidence through the very human eyes of a juror rather than from the ease-law-restricted gaze of an appellate judge. If the majority were driving a car on the road to justice in this case, I am certain it would crash into the stonewall of Jackson v. Virginia, supra.
The Court of Appeals for the First Circuit made this point clear in United States v. Laboy, 909 F.2d 581, 588 (1990):
In examining claims of insufficient evidence, this court must review the evidence considered as a whole, including all inferences that may be reasonably drawn therefrom in the light most favorable to the government, and decide if any rational trier of fact could find guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Santiago, 828 F.2d 866, 870 (1st Cir.1987); United States
v. Samalot Perez, 767 F.2d 1, 4 (1st Cir.1985). Nor is it required that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except guilt. United States v. Santiago, 828 F.2d at 870; United States v. Cintolo, 818 F.2d 980, 990 (1st Cir.1987); United States v. Rivera Rodriguez, 808 F.2d 886, 890 (1st Cir.1986). As long as the record as a whole supports the conclusion of guilt beyond a reasonable doubt, the jury is free to choose among reasonable constructions of evidence. Id.
(Emphasis added.)