UNITED STATES, Appellee
v.
James D. WILSON, Staff Sergeant
U.S. Army, Appellant
No. 09-0010
Crim. App. No. 20061187
United States Court of Appeals for the Armed Forces
Argued April 27, 2009
Decided June 18, 2009
EFFRON, C.J., delivered the opinion of the Court, in which
BAKER, ERDMANN, and RYAN, JJ., joined. STUCKY, J., filed a
dissenting opinion.
Counsel
For Appellant: Captain Pamela Perillo (argued); Lieutenant
Colonel Mark Tellitocci, Lieutenant Colonel Matthew M. Miller,
and Major Grace M. Gallagher (on brief).
For Appellee: Captain Sarah J. Rykowski (argued); Colonel
Denise R. Lind, Lieutenant Colonel Mark H. Sydenham, and Captain
Philip M. Staten (on brief).
Military Judge: Donna M. Wright
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Wilson, No. 09-0010/AR
Chief Judge EFFRON delivered the opinion of the Court.
The charges referred to Appellant’s general court-martial
alleged a variety of offenses concerning abuse of his
stepdaughter, RC. The charged offenses included making a false
official statement, rape of a child (two specifications), sodomy
with a child, and indecent act with a child (two
specifications), in violation of Articles 107, 120, 125, and 134
of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§
907, 920, 925, 934 (2000). The military judge dismissed the
sodomy and indecent acts charges based upon the statute of
limitations. The prosecution elected to not present evidence on
one of the rape specifications, leading to a finding of not
guilty on that specification. The military judge, sitting as a
general court-martial, convicted Appellant, contrary to his
pleas, of making a false official statement and of the remaining
rape specification.
The military judge sentenced Appellant to reduction to pay
grade E-1, confinement for eleven years, and a dishonorable
discharge. The convening authority approved the adjudged
sentence and waived the automatic forfeitures for six months.
The present appeal concerns the rape conviction. The
offense, as charged, read as follows:
In that [Appellant], did, at or near Colorado Springs,
Colorado, on divers occasions between on or about 15
February 1996 and on or about 1 March 1998, rape [RC], a
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person under the age of 12.
The military judge concluded that the offense consisted of a
single incident, and struck out the phrase “on divers occasions”
from the findings. In so doing, the military judge convicted
Appellant of a single rape, while acquitting Appellant of
multiple incidents of rape.
The United States Army Court of Criminal Appeals affirmed.
United States v. Wilson, No. ARMY 20061187 (A. Ct. Crim. App.
Aug. 27, 2008) (unpublished). On Appellant’s petition, we
granted review of the following issue:
WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED
IN AFFIRMING APPELLANT’S CONVICTION FOR RAPE WHEN
THE MILITARY JUDGE EXCEPTED “ON DIVERS OCCASIONS”
FROM THE SPECIFICATION AND DID NOT SPECIFY THE
SINGLE OCCASION AS PART OF THE FINDING, BUT THE
VICTIM ONLY TESTIFIED TO A SINGLE OCCURRENCE AND
THE PARTIES ONLY ARGUED THIS SINGLE OCCASION TO
THE MILITARY JUDGE.
For the reasons set forth below, we conclude that the military
judge erred under the circumstances of this case by not
identifying the single occasion that formed the basis for the
conviction.
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I. BACKGROUND
A. THE CHARGE: MULTIPLE INCIDENTS OF RAPE
OVER AN EXTENDED PERIOD OF TIME
The convening authority had a number of options with
respect to the offense at issue, including referring a single
specification alleging a single incident of rape; referring
multiple specifications alleging different incidents of rape; or
referring a single specification alleging multiple incidents of
rape. In choosing the last option, a single specification
covering multiple incidents, the convening authority referred
for trial an allegation that the rapes occurred “on divers
occasions” over a lengthy period of time -- “between on or about
15 February 1996 and on or about 1 March 1998.”
B. THE PROSECUTION’S OPENING STATEMENT
Trial counsel made a very brief opening statement in which
he underscored the prosecution’s primary reliance on two sources
of evidence about alleged acts. First, he referred to the
anticipated testimony from the victim, RC, and her difficulty in
recalling specific dates. He noted that RC would describe a
specific incident of rape on Appellant’s bed and “other
incidents.” Second, trial counsel stated that the prosecution
would present evidence “about these acts from the mouth of the
accused through” statements he provided to law enforcement
officials. According to trial counsel, Appellant’s pretrial
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statements would “clarify the critical details of [RC’s]
recollection of those events.”
C. EVIDENCE OF THE INCIDENTS FROM THE TESTIMONY OF THE VICTIM
AND FROM APPELLANT’S PRETRIAL ADMISSIONS
1. Testimony of the victim
RC testified at the court-martial regarding the incidents
she could remember. These incidents occurred approximately ten
years before the court-martial, when RC was five to seven years
old. When asked if she understood at the time what had occurred
during the incidents, she said: “I didn’t know what was
happening. I knew that it was what he told me to do and that I
didn’t like it at all.”
RC described one incident in which Appellant “did penetrate
me” in a bedroom of their Colorado Springs home. RC recounted a
number of details including the following: Appellant placed her
in a bent position and approached her from behind; the act took
place on the floor; the penetration was painful; she asked for
her teddy bear for comfort during the act but Appellant refused
to give it to her; and that, following the act, Appellant told
her not to tell anyone what had happened.
In addition to the incident in the bedroom, RC testified
about other incidents, including some that occurred in the
bathroom of their home in Colorado Spring, Colorado. RC
recalled using an old, pink washcloth to clean herself up after
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United States v. Wilson, No. 09-0010/AR
one incident in the bathroom. She also testified that Appellant
would instruct her on how to perform oral sex on him, and that
Appellant would rub his penis against her vagina.
In response to trial counsel’s questions, she testified
that there were seven such incidents, that “actual penetration”
occurred once, and that the other incidents involved oral sex
and touching and rubbing his penis on her vagina. When trial
counsel asked if she could recall “if he penetrated you a little
bit” in those incidents, she said: “I don’t recall. I’m pretty
sure it would have hurt as much as it hurt that one time.”
2. Appellant’s Sworn Pretrial Statement
The prosecution introduced into evidence a sworn statement
made by Appellant during the course of the pretrial
investigation. In this sworn statement, Appellant admitted to
penetrating RC during one occasion in the bathroom of their
Colorado Springs home.
Appellant also described incidents involving RC while
stationed both at Fort Bliss, Texas, and at Fort Carson,
Colorado, including occasions in which he would rub his penis
against RC’s vagina as she sat on the counter in the bathroom.
During one such incident, Appellant recalled that RC had said,
“Ouch, that hurts.” Upon further questioning by the
investigating officer, Appellant answered “Yes” to the question,
“Did your penis ever enter in between [RC’s] external labia?”
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United States v. Wilson, No. 09-0010/AR
Appellant denied any incidents of sexual contact with RC
apart from those he specifically described in his statement.
Appellant’s admissions were corroborated by RC’s testimony in a
number of respects, including the sexual activity in the
bathroom in which his penis touched her vagina, Appellant’s
instructions to her regarding oral sex, and RC’s use of a
washcloth to clean up after one of the incidents.
D. CLOSING STATEMENTS
1. Trial Counsel’s Closing Statement
Trial counsel recounted RC’s detailed description of the
bedroom rape and focused on the impact of the event on RC. He
also argued that Appellant’s sworn statement corroborated RC’s
testimony that Appellant penetrated her in their Colorado
Springs home.
2. Defense Counsel’s Closing Statement
Defense counsel’s closing statement focused on whether the
facts alleged in Appellant’s admission and RC’s testimony
satisfied the legal definition of rape. He argued that the
Government failed to produce evidence of Appellant’s guilt
beyond a reasonable doubt. Defense counsel further argued that,
even if the Government had met its burden of proof, “it is very
clear that this [court-martial] only pertains to one incident,
not on divers occasions as alleged in the charge.” Defense
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United States v. Wilson, No. 09-0010/AR
counsel did not state on the record which of the alleged
incidents -- the incident in the bedroom or the incident in the
bathroom -- formed the basis for his contention that there was
only one incident at issue in the court-martial.
3. Trial Counsel’s Rebuttal
In rebuttal, trial counsel stated that Appellant’s sworn
statement corroborated RC’s testimony as to everything that
occurred. He also argued that Appellant’s sworn statement
contained an admission to rape which satisfied the legal
definition of that offense. Finally, trial counsel argued that
RC’s testimony about the bedroom incident was sufficient to
corroborate Appellant’s admission that he raped RC in the
bathroom. He reasoned that RC’s testimony that she said words
to the effect of “[o]uch. That hurts,” during the bedroom rape
incident was consistent with, and therefore corroborated by,
Appellant’s statement that RC said similar words during the
bathroom incident. Trial counsel concluded by asking the court
to enter a finding of guilty for Specification 2 of Charge II as
written.
E. THE MILITARY JUDGE’S FINDINGS
Immediately after trial counsel finished his rebuttal
argument, the following exchange took place between trial
counsel and the military judge:
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United States v. Wilson, No. 09-0010/AR
MJ: You would agree that, at most, it [sic] would be
guilty except the words “on divers occasions”?
TC: Yes, Your Honor. The government would agree to that.
Trial counsel appeared to abandon the Government’s view
regarding multiple incidents of rape, but neither the military
judge nor trial counsel identified which incident would form the
basis of Appellant’s conviction should the words “on divers
occasions” be excepted from the specification. The parties had
a separate, detailed discussion about the appropriate lesser
included offense to be considered by the military judge during
her deliberations.
The military judge found Appellant guilty of Specification
2 of Charge II, excepting the words “on divers occasions.” The
military judge did not indicate on the record or through
substitutions to the specification the rape incident of which
she was convicting Appellant. Neither party asked for
clarification as to which alleged rape incident formed the basis
of the conviction.
F. THE DECISION OF THE COURT OF CRIMINAL APPEALS
The Court of Criminal Appeals issued a one-paragraph, per
curiam opinion affirming the findings of guilty and the sentence
as approved by the convening authority. Wilson, No. ARMY
20061187, slip op. at 1. The opinion also contained the
following footnote:
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United States v. Wilson, No. 09-0010/AR
The findings unquestionably disclose the single
occasion on which the conviction is based. We are
able to conduct a factual sufficiency review and
affirm the findings because we can confidently, and
without any doubt, determine which occasion the
appellant was convicted of and for which occasion he
was acquitted. See generally U.S. v. Scheurer, 62
M.J. 100, 110-112 (C.A.A.F. 2005) (The court
determined that when the findings provide sufficient
certainty to establish which of the charged divers
occasions provide the basis for the conviction, there
is sufficient basis for factual sufficiency review by
the appellate courts.) The victim in this case
unequivocally testified that she was raped on only one
occasion, and the parties accordingly shaped their
closing arguments to address the only assertion of
rape described by the victim. Thus, we find no
ambiguity in the finding at issue.
Id. at 1-2 n.*.
II. DISCUSSION
On appeal, Appellant contends that the Court of Criminal
Appeals erred in affirming his conviction because the military
judge’s findings were ambiguous as to which alleged incident
formed the basis of the conviction. In that context, according
to Appellant, the lower court was precluded from performing a
factual sufficiency review.
In response, the Government contends that the lower court
was not precluded from performing a factual sufficiency review
because evidence of only one alleged incident of rape was
presented at trial. The Government also asserts that it was
clear from the record that all the parties understood which rape
incident formed the basis of Appellant’s conviction.
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United States v. Wilson, No. 09-0010/AR
A. EVIDENCE AT TRIAL CONCERNING MULTIPLE INCIDENTS OF RAPE
In this case, the Government chose to charge Appellant with
raping RC at or near Colorado Springs “on divers occasions.”
The evidence was not presented as a single incident in which the
victim and perpetrator had different accounts. From the
drafting of the charges through the prosecution’s closing
argument, the Government focused on multiple incidents of rape.
It presented evidence of two separate incidents -- one in the
bathroom and one in the bedroom.
Appellant, through a sworn statement that was admitted into
evidence at trial, admitted to raping RC in the bathroom of
Appellant’s Colorado Springs home. The testimony from RC
corroborated Appellant’s admission in many respects,
particularly her testimony that a sexual incident took place in
the bathroom in which his penis touched her vagina. See
Military Rule of Evidence (M.R.E.) 304(g)(1) (noting that
corroborating evidence “need raise only an inference of the
truth of the essential facts admitted”).
RC also testified in detail to a separate incident that
occurred in the bedroom of the Colorado Springs home. Although
this was the only incident of rape that she could recall in
detail, her testimony -- covering events many years in the past
when she was quite young -- left open the possibility that
Appellant raped her on multiple occasions. The details that she
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provided of other incidents in the bathroom corroborated
Appellant’s admission that he raped RC in the bathroom.
Trial counsel explicitly referenced both RC’s testimony and
Appellant’s sworn statement during his opening and closing
statements. He used RC’s testimony to support a theory of
multiple rapes. Trial counsel discussed RC’s account of the
bedroom rape incident in detail, and he also used overlapping
similarities between Appellant’s admissions and RC’s testimony
regarding the other indecent acts Appellant performed to argue
that Appellant’s statements about the bathroom rape incident
were credible.
B. THE FINDINGS WERE AMBIGUOUS
As we noted in United States v. Augspurger, 61 M.J. 189,
190 (C.A.A.F. 2005), when the phrase “on divers occasions” is
removed from a specification, the effect is “that the accused
has been found guilty of misconduct on a single occasion and not
guilty of the remaining occasions.” If there is no indication
on the record which of the alleged incidents forms the basis of
the conviction, then the findings of guilt are ambiguous and the
Court of Criminal Appeals cannot perform a factual sufficiency
review. United States v. Walters, 58 M.J. 391, 396-97 (C.A.A.F.
2003).
In the present case, the military judge found Appellant
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United States v. Wilson, No. 09-0010/AR
guilty of the specification of rape, but excepted the words “on
divers occasions.” Because evidence of multiple incidents of
rape was presented at trial, the military judge was required to
indicate the single incident for which she convicted Appellant.
Clarification of ambiguous findings “can generally be
accomplished through reference in the substituted language to a
relevant date or other facts in evidence that will clearly put
the accused and the reviewing courts on notice of what conduct
served as the basis for the findings.” Walters, 58 M.J. at 396.
In addition, in the context of a judge-alone trial,
clarification of the ambiguity can be accomplished by a clear
statement on the record by the military judge as to which
alleged incident formed the basis of the conviction. See United
States v. Dunn, 2006 CCA LEXIS 143, at *5, 2006 WL 1815975, at
*2 (N-M. Ct. Crim. App. June 30, 2006) (unpublished) (“[I]f the
intent of the military judge can be determined from the record,
the finding can be affirmed on appeal and the appellant is
afforded full protection against double jeopardy.”) (citation
omitted).
Here, the record does not contain either substituted
language or a statement on the record that would identify
whether the military judge convicted Appellant of rape for the
bathroom incident or the bedroom incident. Without such
clarification, the findings of the present case are fatally
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United States v. Wilson, No. 09-0010/AR
ambiguous.
Double jeopardy principles prohibit a reviewing court from
rehearing any incidents for which the accused was found not
guilty. Green v. United States, 355 U.S. 184, 187-88 (1957);
United States v. Scheurer, 62 M.J. 100, 112 (C.A.A.F. 2005). An
ambiguous determination of guilt precludes a Court of Criminal
Appeals from performing a factual sufficiency analysis.
Walters, 58 M.J. at 396-97. The court may not conduct a factual
sufficiency review when the findings are ambiguous because such
action creates the possibility that the court would affirm a
finding of guilt based on an incident of which the appellant had
been acquitted by the factfinder at trial. Id. at 395.
Similarly, the Courts of Criminal Appeals may not perform
an independent review of the record to determine which of the
possible incidents most likely formed the basis of the
conviction. See generally Augspurger, 61 M.J. at 192-93
(holding that the Court of Criminal Appeals could not
independently conclude which occasion was the basis for the
conviction and then perform a factual sufficiency review of that
conclusion). Ambiguous findings preclude any attempt by the
lower courts to “distinguish[] incidents that resulted in
acquittal from the single incident that resulted in a
conviction.” Scheurer, 62 M.J. at 112. “The defect is neither
a question of the legal or factual sufficiency of the evidence
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United States v. Wilson, No. 09-0010/AR
of one alleged use versus the other, nor is it a question to be
resolved by weighing the evidence and concluding that evidence
of one use is quantitatively or qualitatively inferior.” United
States v. Seider, 60 M.J. 36, 38 n.* (C.A.A.F. 2004).
The lower court in this case relied on Scheurer to reach
the conclusion that it was “able to conduct a factual
sufficiency review . . . because we can confidently, and without
any doubt, determine which occasion the appellant was convicted
of and for which occasion he was acquitted.” Wilson, No. ARMY
20061187, slip op. at 1-2 n*. Scheurer, however, does not stand
for the general proposition that when evidence of multiple
offenses has been presented at trial, the lower court may make
its own determination as to which of the multiple offenses
formed the basis of the factfinder’s unexplained decision to
replace a charge of multiple incidents with a finding of a
single incident. See Scheurer, 62 M.J. at 111. Rather,
Scheurer stands for the more limited proposition that a Court of
Criminal Appeals may review the record to determine if there is
only a single possible incident that meets all the details of
the specification for which the appellant was convicted. Id. at
111-12.
The present case is analogous to the circumstances
surrounding the dismissed specification in Scheurer. Here, the
Government presented evidence of multiple incidents that
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United States v. Wilson, No. 09-0010/AR
occurred during the lengthy time frame and in the general
location stated in the specification. Because both incidents
occurred within the remaining language of the specification
after removal of the phrase “on diverse occasions,” the Court of
Criminal Appeals was not in a position as a matter of law to
determine which of the two alleged incidents served as the
grounds for Appellant’s conviction without explicit guidance on
the record from the military judge. See Augspurger, 61 M.J. at
192 (stating that the lower court “did not have the authority to
review and affirm [the appellant’s] conviction by selecting the
occasion that formed the basis for the conviction and then
reviewing that conclusion for factual sufficiency”).
C. REMEDIES FOR AMBIGUOUS FINDINGS
“[T]he remedy for a Walters violation is to set aside the
finding of guilty to the affected specification and dismiss it
with prejudice.” Scheurer, 62 M.J. at 112. Accordingly, we set
aside the finding of guilty as to Specification 2 of Charge II
and dismiss that specification with prejudice.
III. DECISION
The decision of the United States Army Court of Criminal
Appeals is reversed. The finding of guilty of Specification 2
of Charge II and the sentence are set aside. That specification
and charge are dismissed with prejudice. The remaining finding
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of guilty is affirmed. The record of trial is returned to the
Judge Advocate General of the Army. A rehearing on sentence may
be ordered.
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STUCKY, Judge (dissenting):
In my opinion, the United States Army Court of Criminal
Appeals (CCA) did not err in affirming Appellant’s conviction
for the rape of his stepdaughter, RC, in the bedroom; therefore,
I respectfully dissent.
In the written statement he provided to law enforcement
agents, Appellant described two incidents in the bathroom of the
family apartment in Colorado Springs, in which, among other
indecent acts, he rubbed his penis on RC’s vagina, masturbated,
and ejaculated. With prodding from the interrogator, Appellant
made additional admissions:
Q: Did your penis enter her vagina, which caused her to
make that statement [“Ouch, that hurts”]?
A: I do not know. She never stated that it did and
honestly I don’t know.
Q: Did the head of your penis enter her vagina, meaning
her external labia, and you then stopped before
entering her vaginal canal when she stated that it
hurt?
A: That could have happened, I remember her saying ouch,
yes, that hurts, then I stopped. I can say that is a
possibility.
Q: Do you understand what external labia means?
A: Yes.
Q: Do you understand what vaginal canal means?
A: Yes.
Q: Did your penis ever enter [RC]’s vaginal canal?
United States v. Wilson, No. 09-0010/AR
A: No.
Q: Did your penis ever enter in between Rene’s external
labia?
A: Yes.
RC testified that Appellant raped her. “[H]e did take me
into my mother’s bedroom and he did penetrate me when I was,
like -- I don’t remember -- 5 or 6.” “I remember going into the
bedroom and I remember being bent over in the doggy-style
position . . . . I don’t quite remember what he said, but I
remember something hurt -- it hurt a lot. And I said ‘Ow, that
hurts. Stop. Please stop. Ow, that hurts.’” She agreed with
the trial counsel that it was her vagina that hurt. Although RC
remembers seven instances during which she was sexually
molested, she insisted that there was actual penetration only
once. The military judge asked if she believed Appellant
penetrated her with his penis. RC answered “yes.”
Military Rule of Evidence (M.R.E.) 304(g) provides in
pertinent part:
An admission or a confession of the accused may be
considered as evidence against the accused on the
question of guilt or innocence only if independent
evidence, either direct or circumstantial, has been
introduced that corroborates the essential facts
admitted to justify sufficiently an inference of their
truth. . . . If the independent evidence raises an
inference of the truth of some but not all of the
essential facts admitted, then the confession or
admission may be considered as evidence against the
accused only with respect to those essential facts
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stated in the confession or admission that are
corroborated by the independent evidence.
The corroboration rule seems to contemplate two different
issues: First, if objected to, the military judge must hold a
hearing to determine whether there is sufficient corroborating
evidence to admit the statement, M.R.E. 304(g)(2); second, the
trier of fact must consider the “amount and type of evidence
introduced as corroboration . . . in determining the weight, if
any, to be given to the admission or confession.” M.R.E.
304(g)(1); see United States v. Duvall, 47 M.J. 189, 192
(C.A.A.F. 1997); 1 Stephen A. Saltzburg et al., Military Rules
of Evidence Manual § 304.02[7], at 3-102 (6th ed. 2006).
There was no objection to the admission of Appellant’s
statement. Therefore, the sole question for the military judge
was the weight to give to the admission that his penis entered
between RC’s external labia based on the evidence introduced as
corroboration. If RC had testified only that she was sexually
molested in the bathroom, that alone would have been sufficient
for the military judge to give weight to Appellant’s admission
that, during the molestation, his penis entered RC’s external
labia. Likewise, if RC had testified that she had been molested
in the bathroom and raped in the bedroom, without asserting that
it was the only time she was raped, then the evidence would have
been sufficient for the military judge to give weight to
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Appellant’s admission. Under these scenarios, we would be
unable to tell which rape the military judge convicted Appellant
of committing. But here, RC insisted that she was raped only
once and it occurred in the bedroom.
“Military judges are presumed to know the law and follow it
absent clear evidence to the contrary.” United States v.
Martinez, 65 M.J. 431 (C.A.A.F. 2007) (summary disposition)
(citing United States v. Erickson, 65 M.J. 221, 225 (C.A.A.F.
2007) (a sentencing case)). The military judge was confronted
with Appellant’s statement wherein he readily admitted
performing indecent acts and cunnilingus on RC and having her
perform fellatio on him, but only reluctantly admitted that his
penis entered RC’s external labia. On the other hand, RC
insisted that there was only one rape and it occurred in the
bedroom. Under these circumstances, the military judge could
not have inferred the truth of Appellant’s statement that he
placed his penis between RC’s external labia in the bathroom.
The military judge could have convicted Appellant only of the
rape in the bedroom. Therefore, I would affirm the decision of
the CCA.
4