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

     ---------------------------------------------------
                     OPINION OF THE COURT
     ---------------------------------------------------

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,
of sexual assault 1 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 E-
1, 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
    

4
    

795, 922.


                                      2
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 cross-
examination 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
     

6
     

7
     

8
     

801, 870, 927-29, 931, 995.
9
     

10
     Prosecution Exhibits 1 and 2.
11
     

                                         3
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, 

, 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, 

, 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,

, 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, 

, 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
     

13
     

14
     

523.
                                      4
each required element beyond a reasonable doubt.”   

.

     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
     

553.
16
     Appellant’s Brief of 18 Dec 2014 at 7.
17
     Record at 686.
18
     

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 post-
trial 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, 

, 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.
                                      6
deficient, and (2) that this deficiency resulted in prejudice.”
United States v. Green, 

, 361 (C.A.A.F. 2010)
(citations omitted).

     Generally counsel are presumed to be competent. United
States v. Cronic, 

, 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, 

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

, 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.” 

. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. 

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.




                                7
                          Conclusion

     The findings of guilty and the sentence as approved by the
CA are affirmed.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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