(dissenting):
46. A court-martial with members properly instructed in the law found appellant guilty of indecent assault. The Court of Military Review reached the same conclusion and additionally concluded that the evidence of record satisfied Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Once again, a majority of this Court has substituted its judgment for that of the appropriate factfinders. See United States v. Cage, 42 MJ 139 (1995); United States v. Hullett, 40 MJ 189 (CMA 1994).
47. I would affirm the decision of the Court of Military Review. It succinctly summarized the law and facts of this case, as follows:
Before this Court the appellant contends, inter alia, that the evidence was insufficient to support a conviction of indecent assault where he merely grabbed a female soldier’s shoulder and attempted to kiss her. We disagree. The gravamen of this offense is an intentional act with the specific intent to gratify sexual desires. See United States v. Rodriguez, 31 MJ 150, 157 (CMA 1990). The act or acts need not themselves be indecent. The victim in this specification, a junior NCO, perceived that the appellant “wanted a kiss” when he grabbed her shoulder and moved his face to within a foot of hers as they were seated in his car. She pulled away from him and got out of the car. The manner of this nonconsensual touching, appellant’s movement toward the victim with the apparent desire to engage in sexual conduct, and the professional and military relationship between the parties were sufficient to satisfy the requirements of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and United States v. Turner, 25 MJ 324 (CMA 1987).
Unpub. op. at 1-2.
48. Finally, I must note the decision of this Court in United States v. Choate, 32 MJ 423, 427 (CMA 1991). See also United States v. Sever, 39 MJ 1, 4 (CMA 1994). Choate supports the proposition that all the circumstances surrounding an act must be taken into consideration to determine its indecency. Here, for example, it should be noted that appellant was a married senior enlisted man; he lured a single junior enlisted woman into his car on base at dusk after tailgating her car; and he unexpectedly attempted to initiate sexual activity with a woman he had simply seen at a Halloween party. Characterizing such activity as a mere “attempted kiss” or an “intended kiss with romantic
*9overtones” (¶ 19) not only understates the evidence of record but ignores the particular military environment in which it took place.* See United States v. Wheeler, 40 MJ 242, 247 (CMA 1994); see also United States v. Clark, 35 MJ 432 (CMA 1992), cert, denied, 507 U.S. 1052, 113 S.Ct. 1948, 123 L.Ed.2d 653 (1993).
"Facts do not cease to exist because they are ignored.” Aldous Huxley, "Note on Dogma,” Proper Studies (1927), quoted in The Oxford Dictionary of Modem Quotations 109(12) (Oxford University Press 1991).