Petition for Writ of Certiorari — Anton Soloshenko, Petitioner v. United States
Supreme Court briefApr 7, 2026
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APPENDIX
TABLE OF CONTENTS
Court of Appeals for the Armed Forces
Order Denying Petition for Grant of
Review, United States v. Soloshenko,
No. 25-0273/SF (Nov. 10, 2025) .......................... 1a
Air Force Court of Criminal Appeals
Opinion, United States v. Soloshenko,
No. ACM 40581 (Apr. 4, 2025) ............................ 2a
Court of Appeals for the Armed Forces
Order Denying Petition for Grant of
Review, United States v. Torres
Gonzalez, No. 25-0018/AF (Nov. 17,
2025)................................................................... 46a
Air Force Court of Criminal Appeals
Opinion, United States v. Torres
Gonzales, No. ACM 24001 (Aug. 29,
2025)................................................................... 47a
Court of Appeals for the Armed Forces
Order Denying Petition for Grant of
Review, United States v. Haymond II,
No. 26-0035/AF (Jan. 6, 2026)........................... 68a
Air Force Court of Criminal Appeals
Opinion, United States v. Haymond
II, No. ACM 40588 (Sep. 23, 2025) ................... 69a
Court of Appeals for the Armed Forces
Order Denying Petition for Grant of
Review, United States v. Roberts, No.
26-0044/AF (Jan. 23, 2026) ............................... 76a
iia
Air Force Court of Criminal Appeals
Opinion, United States v. Roberts, No.
ACM 40608 (Sep. 30, 2025) ............................... 77a
Court of Appeals for the Armed Forces
Opinion of the Court, United States v.
Matti, No. 25-0148/AF (Feb. 17, 2026)
............................................................................ 90a
Air Force Court of Criminal Appeals
Opinion, United States v. Matti, ACM
22072 (Feb. 28, 2025) ...................................... 119a
Constitutional,
Statutory,
and
Regulatory Provisions Involved ...................... 201a
1a
United States Court of Appeals
for the Armed Forces
Washington, D.C.
United States,
Appellee
USCA Dkt. No. 25-0273/SF
Crim.App. No. 40581
v.
ORDER DENYING PETITION
Anton
Soloshenko,
Appellant
On consideration of the petition for grant of review
of the decision of the United States Air Force Court of
Criminal Appeals, it is by the Court, this 10th day of
November, 2025,
ORDERED:
That the petition is hereby denied.
For the Court,
/s/
cc:
Malcolm H. Squires, Jr.
Clerk of the Court
The Judge Advocate General of the Space Force
Appellate Defense Counsel (Payne)
Appellate Government Counsel
2a
UNITED STATES AIR FORCE
COURT OF CRIMINAL APPEALS
________________________
No. ACM 40581
________________________
UNITED STATES
Appellee
v.
Anton SOLOSHENKO
Specialist 4 (E-4), U.S. Space Force, Appellant
________________________
Appeal from the United States Air Force Trial
Judiciary
Decided 31 July 2025
________________________
Military Judge: Wesley A. Braun.
Sentence: Sentence adjudged on 21 September 2023 by
GCM convened at Buckley Space Force Base,
Colorado. Sentence entered by military judge on 27
October 2023: Dishonorable discharge, hard labor
without confinement for 15 days, and reduction to
E-3.
For Appellant: Major Heather M. Bruha, USAF;
William E. Cassara, Esquire.
For Appellee: Colonel Steven R. Kaufman, USAF;
Lieutenant Colonel Thomas J. Alford, USAF;
Lieutenant Colonel Jenny A. Liabenow, USAF; Mary
Ellen Payne, Esquire.
3a
Before JOHNSON, MERRIAM,
Appellate Military Judges.
and
WARREN,
Judge MERRIAM delivered the opinion of the court,
in which Chief Judge JOHNSON and Judge
WARREN joined.
________________________
This is an unpublished opinion and, as such,
does not serve as precedent under AFCCA Rule
of Practice and Procedure 30.4.
________________________
MERRIAM, Judge:
A general court-martial consisting of officer and
enlisted members convicted Appellant, contrary to his
pleas, of one specification of sexual assault in violation
of Article 120, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 920.1,2 The members sentenced
Appellant to a dishonorable discharge, hard labor
without confinement for 15 days, and reduction to E3. The convening authority took no action on the
findings or sentence.
Appellant raised four issues on appeal, which we
have rephrased: (1) whether Appellant’s convictions
are legally and factually sufficient; (2) whether the
military judge abused his discretion in admitting
1 Unless otherwise noted, all references to the UCMJ, Rules for
Courts-Martial, and Military Rules of Evidence (Mil. R. Evid.)
are to the Manual for Courts-Martial, United States (2019 ed.).
Appellant was acquitted of one specification of assault
consummated by battery in violation of Article 128, UCMJ, 10
U.S.C. § 928. A second specification of assault consummated by
battery was withdrawn and dismissed with prejudice by the
Government prior to arraignment.
2
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statements of the complaining witness under the
excited utterance exception to the hearsay rule; (3)
whether 18 U.S.C. § 922 is constitutional as applied to
Appellant when Appellant was convicted of nonviolent offenses; and (4) whether Appellant’s
constitutional rights were violated by being convicted
of offenses by a court-martial panel that was not
required to vote unanimously for guilt.3
We have carefully considered issue (3) and find it
warrants neither discussion nor relief. See United
States v. Guinn, 81 M.J. 195, 204 (C.A.A.F. 2021)
(citing United States v. Matias, 25 M.J. 356, 361
(C.M.A. 1987)); see also United States v. Johnson, __
M.J. __, No. 24-0004, 2025 CAAF LEXIS 499 (C.A.A.F.
24 Jun. 2025) (Article 66(d)(2), UCMJ, 10 U.S.C.
§ 866(d)(2) (Manual for Courts-Martial, United States
(2024 ed.) (2024 MCM), does not give this court
authority to modify the 18 U.S.C. § 922 indication on
an entry of judgment); United States v. Williams, 85
M.J. 121, 126 (C.A.A.F. 2024) (whether a conviction
triggers 18 U.S.C. § 922 is not part of the findings or
sentence upon which Courts of Criminal Appeals have
authority to act under Article 66(d)(1)(A), UCMJ
(2024 MCM)).
As to issue (4), Appellant is not entitled to relief.
See United States v. Anderson, 83 M.J. 291, 302
(C.A.A.F. 2023) (holding that a military accused does
not have a right to a unanimous verdict under the
Sixth Amendment,4 the Fifth Amendment’s Due
Process Clause, or the Fifth Amendment’s component
3 Issue (4) was personally raised by Appellant pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
4 U.S. CONST. amend. VI.
5a
of equal protection5), cert. denied, 144 S. Ct. 1003
(2024).
We address issues (1) and (2) below. Finding no
error materially prejudicial to Appellant’s substantial
rights, we affirm the findings and sentence.
I. BACKGROUND
A. Consensual Sexual Relationship Between
LH and Appellant
In June 2022, Appellant, then 21 years old, met
LH, an 18-year-old civilian, on a dating application
and began a short relationship with her. In the
following few weeks, they frequently engaged in
consensual rough sex. At LH’s request, Appellant
intentionally caused LH pain, including by spanking
her, because LH enjoyed the sensation of feeling pain
during sex.6 The record indicates sometimes LH would
ask Appellant to “do it harder” to cause more pain for
her sexual gratification. And LH testified at trial that
sex involving pain was “almost the only type of sex”
they had. At least once, Appellant left “considerable
marks” on LH’s breasts. Approximately 75 percent of
their consensual sexual encounters involved
Appellant, at LH’s request, enhancing LH’s sexual
pleasure and gratification by making it difficult for
her to breathe.
When not physically together, LH and
Appellant communicated their sexual interests and
5 U.S. CONST. amend. V.
6 We include these personal and intimate details because they
are relevant and necessary to analyzing Appellant’s mistake of
fact defense, as analyzed in detail infra.
6a
fantasies to each other by text message.7 LH told
Appellant he should: (1) have sex with her “dirty, hot,
rough, and deep;” (2) spank her because she had been
“real bad;” and (3) handcuff or tie her up and “make”
her perform sex acts on him, the thought of which she
explicitly acknowledged made her sexually aroused.
On 7 July 2022, when Appellant and LH were
texting about sexual desires, LH sent Appellant a
message saying, “I want you to stop, but I really don’t
want [you] to all at the same time.” Later that day
they had consensual rough sex, after which LH
perceived a shift in Appellant’s mood. Appellant told
LH he felt like “a withered husk,” referring to being
exhausted and uninterested in continuing to engage
in sex with her in the way she desired. Appellant
further told LH that sex with her was making him
tired and depressed. On 8 July 2022, LH and
Appellant again discussed “concerns about [their]
sexual compatibility.” Appellant communicated his
willingness to continue having sex with LH, but
expressed that he could not take LH “home to his
mother.” On 9 July 2022, LH sent Appellant a text
ending their relationship because in her view they
were “not compatible . . . anymore” and she was “just
not that into” him.
After the 9 July 2022 text exchange, Appellant and
LH did not meet or have sex for several days. In the
meantime, LH had sex with another man on 11 July
2022. She also went to see her therapist, who advised
her to remain celibate for a period. LH acknowledged
she had previously failed to follow other advice from
her therapist. At trial, however, LH asserted that on
7 All quotes from text messages are in their original form, except
where bracketed.
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this occasion she intended to make a real change and
had resolved to be celibate.
On 19 July 2022, Appellant sent LH text messages
saying he missed her and “[t]hings should not have
gone the way they did.” LH responded saying, “[N]o
they shouldn’t have I miss you too” and “Im [sic] sorry
that I said what I did, it wasn’t true and that was
sh[**]ty of me.” Appellant and LH then arranged to
meet at Appellant’s home that night. LH told
Appellant, “I want to make sure this is not like a booty
call thing, right[.]” Appellant replied “It’s not.”8
B. Events Leading to the Article 120, UCMJ,
Offense
On the evening of 19 July 2022, LH arrived at
Appellant’s home as planned. According to LH, they
first sat on Appellant’s couch and engaged in small
talk. Eventually, Appellant started to kiss LH. She
told him, “I’m trying to be celibate and not do anything
sexual in nature and I just want to let you know this
is as far as it’s going to go[,] it’s PG, that’s it.”9
Appellant responded that was “fine.” LH was a willing
and active participant in the kissing because,
according to her, “emotions were high” and she
believed kissing was not as intimate as sex. They
talked for a few more minutes about how their
8 At trial, LH clarified on cross-examination, that she considered
the term “booty call” to mean being invited for the sole purpose
of having sex outside of a relationship, whereas an invitation to
come over for the sole purpose of sex during a relationship would
not be a “booty call.”
“PG” is apparently a reference to the Motion Picture
Association’s movie ratings system suggesting the suitability of
films for various audiences. LH testified that to her “PG” meant
kissing only.
9
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relationship had previously ended and they
apologized for the hurtful things they said to each
other.
Appellant then started showing LH some new
furniture around his home. She followed him into his
bedroom where he showed her new nightstands. LH
testified she was more focused on their conversation
than the fact they were headed into the bedroom.
Appellant and LH started kissing again on
Appellant’s bed. LH told Appellant, “This is as far as
it’s ever going to go.” Appellant responded that “it was
fine.” Appellant began kissing LH more aggressively
while laying on top of her. He eventually started to, in
LH’s words, “move his hands to other places that
wasn’t okay.” According to LH, she stopped kissing
Appellant back at this point and was “[j]ust kind of
was there.” Appellant started pushing down on LH’s
face, causing her to feel like she could not breathe. LH
testified that at times she could not talk, but managed
to say “no” 20 to 30 times while Appellant was kissing
and groping her. LH tried to stop the kissing by
putting her hand over his mouth and her mouth, but
Appellant moved her hand out of the way. When
Appellant started to take off his shirt, LH pulled it
back down, saying words to the effect of, “If you take
your shirt off, this is going to go to the next place.”
Nevertheless, Appellant eventually removed his shirt
anyway. LH tried to place the shirt between their
faces, but Appellant moved it out of the way and
resumed kissing her.
Appellant told LH he knew she “wanted it” and
either “told” or “asked”10 LH to take off her clothes. At
LH used both terms during her testimony on direct
examination and neither trial counsel nor trial defense counsel
10
9a
this point, LH believed Appellant wanted to have sex
with her. LH removed her jeans, underwear, shirt,
and bra, and testified she did so out of fear that
Appellant “would make” the situation “more violent”
than “it already was.” At trial, LH testified Appellant
was “overpowering” her, she “couldn’t really get away”
and she “felt like [she] didn’t have any other choice
than to do what he asked” as the situation, in her
view, “kept escalating further.”
Appellant did not threaten LH, however. She
testified at trial that she clearly recalled removing all
her own clothing without Appellant’s assistance, but
she could not remember whether Appellant touched
her while she did so.
While LH was laying naked in bed, Appellant got
up to retrieve a condom from the nightstand. When
Appellant returned, he moved LH’s legs apart and
penetrated her vulva with his penis. Appellant also bit
her neck and one or both of her breasts.11 LH testified
this caused her “extreme pain” and she “made noises
[of] pain,” but did not physically resist or tell
Appellant to stop penetrating her because she felt
“frozen.” LH estimated Appellant’s penetration of her
vulva lasted about 15 minutes. From the time
Appellant “told” (or “asked”) LH to take her clothes off
requested clarification. During a cross-examination in which LH
regularly challenged and pushed back on the language and
premises of trial defense counsel’s questions, she did not
challenge trial defense counsel’s multiple questions about the
circumstances when Appellant “asked” her to take her clothes off.
11 LH testified she could not remember whether Appellant bit one
or both breasts. The panel acquitted Appellant of a separate
charge and specification alleging his biting her breast
constituted an assault consummated by a battery in violation of
Article 128, UCMJ.
10a
until the penetration was over, she did not say “no” or
“stop” or otherwise express verbally that she did not
consent to penetration.
Afterwards, according to LH’s testimony,
Appellant laid his head on LH’s chest and acted
“affectionate” toward her, which she found “highly
confusing.” Appellant asked LH how she was feeling.
She responded by asking him if he wanted to hear the
truth or a lie. After Appellant told her he wanted to
hear the truth, she said that she did not feel okay.
Appellant responded by telling her she did not need to
feel bad about breaking her promise to be celibate
because it was “all him.”
C. Aftermath
LH got dressed and laid down on Appellant’s
couch. Appellant seemed to detect LH was still
bothered by something. He asked her if she was upset
because of her intent to remain celibate. LH revealed
she had also had sex with another man on 11 July
2022—two days after breaking up with Appellant.
LH remained at Appellant’s apartment for 45 to 60
minutes. She then walked to her car while “processing
what happened.” LH then telephoned SS, a close
family friend, as she began to grasp the “extent of
what happened” and “started putting it together . . .
[a]nd realizing how bad it was.” LH was crying during
her conversation with SS.
LH then briefly called her sister and her mother
before driving to her mother’s home where she started
crying again. LH had a contentious relationship with
her mother who had recently told LH she could no
longer live in her home because she was not following
her rules. LH was planning to sleep in her boss’s
basement the night the incident occurred, but her
11a
mother permitted her to stay the night at her home.
At some point, LH revealed to her mother some details
of what had happened.12 LH’s mother told her she
needed to go to the hospital if she had been sexually
assaulted.
Later that night, Appellant sent LH two text
messages to which LH did not respond. First,
Appellant wrote, “come back I’m horny.” In a separate
text, he wrote he was just kidding and wished her a
good night. It had been the usual practice for
Appellant to engage in “multiple rounds of sex” with
LH “almost every time.” This time, however, LH did
not respond to his request that she return, because,
according to her trial testimony, she believed
Appellant “had just sexually assaulted” her and she
believed “there is no response” to a request to return
after such an encounter.
The next day, 20 July 2022, Appellant texted LH,
“Good morning. Hope you don’t hate me too much.” LH
again did not respond. LH went to work that day.
After she finished her shift, she went to the hospital
for a forensic sexual assault exam by a nurse
examiner. The nurse examiner took photographs,
some depicting marks on LH’s neck and breast. LH
told the nurse examiner there was no history of
Appellant threatening her or inflicting injury on her
before the night of the alleged assault. LH told the
nurse examiner Appellant had made it difficult for her
to breathe during the sexual act on 19 July 2022, but
did not reveal to the nurse examiner that Appellant
12 The record is unclear exactly what LH told her mother about
the sexual assault or when she told her.
12a
had also previously done this at her request in most of
their prior consensual sexual encounters.
After LH told her mother that she had reported the
sexual assault, visited the hospital, and spoken with
the police, her mother rescinded LH’s eviction and
allowed her to return to staying at home.13
D. LH’s Testimony at Appellant’s Trial by
Court-Martial
LH testified for the Government at Appellant’s
trial by court-martial. Appellant exercised his right to
remain silent and elected not to testify.
On direct examination, LH described Appellant
spreading her legs before penetrating her vulva with
his penis on the night in question. LH did not allege
that Appellant used force to do so. Then, on crossexamination, LH stated for the first time that
Appellant had “forced” her legs open.
During cross-examination of LH, trial defense
counsel pressed LH as to why she had not previously
disclosed this supposed “force” to the sexual assault
nurse examiner, two police detectives, or the
prosecution team, or why she did not testify about this
“force” in her initial direct examination. LH answered,
“No one’s ever asked.”14 Further, LH admitted that on
4 July 2022 she showed her mother injuries to her
13 For reasons not explained in the record and apparently not
germane to the case, this arrangement lasted only a few days
before LH’s mother again told LH she could no longer live in her
home.
When asked during further cross-examination to specify
whether her use of the word “force” meant she physically resisted
Appellant spreading her legs, LH answered, “I froze so, I just
froze, and I just laid there, and he opened them.”
14
13a
breasts and complained Appellant caused them, then
on the two subsequent days communicated to
Appellant by text her desire for rough sex.
During another part of cross-examination, LH
acknowledged that she never revealed her history of
consensual “rough sex” with Appellant to the nurse
examiner or police investigators, and did not disclose
it to the prosecution team until two days before trial.
This late disclosure happened after the Defense
questioned LH about certain text messages between
her and Appellant showing the consensual nature of
their prior sexual relations. In particular, on crossexamination, when trial defense counsel sought to
establish that LH had deleted a supposedly
exculpatory message from Appellant, LH claimed she
never received such a message. LH testified she had
not blocked incoming messages from Appellant on her
phone, then moments later testified that she did not
know whether she had blocked him, then shortly
thereafter testified she had temporarily blocked him,
then unblocked him at police direction. When trial
defense counsel confronted LH about her changed
testimony, LH responded, “I had forgot because there
was a lot of instructions specifically about blocking
and unblocking.”
II. DISCUSSION
A. Legal and Factual Sufficiency
Appellant challenges the legal and factual
sufficiency of the sole conviction for sexual assault.
Appellant asserts legal and factual insufficiency of
both the Government’s proof regarding the essential
elements of the offense of sexual assault and
Appellant’s mistake of fact defense.
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1. Law
a. Legal Sufficiency
We review issues of legal sufficiency de novo.
United States v. King, 78 M.J. 218, 221 (C.A.A.F.
2019) (citation omitted). “Our assessment of legal
sufficiency is limited to the evidence produced at
trial.” United States v. Rodela, 82 M.J. 521, 525 (A.F.
Ct. Crim. App. 2021) (citing United States v. Dykes, 38
M.J. 270, 272 (C.M.A. 1993)).
“The test for legal sufficiency is whether, after
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. Robinson, 77 M.J.
294, 297–98 (C.A.A.F. 2018) (citation omitted). “[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). As a result, “[t]he standard for legal
sufficiency involves a very low threshold to sustain a
conviction.” King, 78 M.J. at 221 (alteration in
original) (citation omitted). “This deferential standard
impinges upon the factfinder’s discretion only to the
extent necessary to guarantee the fundamental
protection of due process of law.” United States v.
Mendoza, 85 M.J. 213, 227 (C.A.A.F. 2024) (internal
quotation marks and citation omitted).
b. Factual Sufficiency
We are neither required nor empowered to review
the factual sufficiency of the evidence unless an
appellant both (1) asserts an assignment of error and
(2) shows a specific deficiency in the proof. United
States v. Harvey, 85 M.J. 127, 129 (C.A.A.F. 2024).
15a
The current version of Article 66(d)(1)(B), UCMJ,
FACTUAL SUFFICIENCY REVIEW, states:
(i) In an appeal of a finding of guilty under
subsection (b), the Court may consider
whether the finding is correct in fact upon
a request of the accused if the accused
makes a specific showing of a deficiency of
proof.
(ii) After an accused has made a showing,
the Court may weigh the evidence and
determine controverted questions of fact
subject to—
(I) appropriate deference to the fact that
the trial court saw and heard the
witnesses and other evidence; and
(II) appropriate deference to findings of
fact entered into the record by the
military judge.
(iii) If, as a result of the review conducted
under clause (ii), the Court is clearly
convinced that the finding of guilty was
against the weight of the evidence, the
Court may dismiss, set aside, or modify
the finding, or affirm a lesser finding.
10 U.S.C. § 866(d)(1)(B) (2024 MCM).
“[T]he requirement of ‘appropriate deference’ when
a [Court of Criminal Appeals] ‘weigh[s] the evidence
and determine[s] controverted questions of fact’ . . .
depend[s] on the nature of the evidence at issue.”
Harvey, 85 M.J. at 130 (second and third alteration in
original). It is within this court’s discretion to
determine what level of deference is appropriate. Id.
at 131.
16a
“[T]he quantum of proof necessary to sustain a
finding of guilty during a factual sufficiency review is
proof beyond a reasonable doubt, the same as the
quantum of proof necessary to find an accused guilty
at trial.” Id. at 131 (internal quotation marks
omitted).
For this court “to be ‘clearly convinced that the
finding of guilty was against the weight of the
evidence,’ two requirements must be met.” Id. at 132.
First, we must decide that evidence, as we weigh it,
“does not prove that the appellant is guilty beyond a
reasonable doubt.” Id. Second, we “must be clearly
convinced of the correctness of this decision.” Id.15
c. Sexual Assault
As charged, the elements for sexual assault are: (1)
Appellant committed a sexual act upon LH by
penetrating LH’s vulva with Appellant’s penis; and (2)
Appellant did so without LH’s consent. Manual for
Courts-Martial, United States (2019 ed.) (MCM), pt.
IV, ¶ 60.b.(2)(d). As relevant here, a “[s]exual act” is
defined as “the penetration, however slight, of the
penis into the vulva or anus or mouth.” MCM, pt. IV,
¶ 60.a.(g)(1)(A). “Consent” is defined as “a freely given
15 We note a perplexing interaction between the two parts of this
standard. To find the evidence proves Appellant’s guilt beyond a
reasonable doubt, we must be “firmly convinced” of Appellant’s
guilt. See, e.g., Military Judge’s Benchbook, Dept. of the Army
Pamphlet 27-9 at 1825 (29 Feb 2020); United States v. McClour,
76 M.J. 23 (C.A.A.F. 2017) (noting the Benchbook instruction,
including the “firmly convinced” standard). So, it appears that for
us to take action under the new Article 66(d)(1)(B), UCMJ,
standard as interpreted by our superior court in Harvey, we must
be “clearly convinced” that we are not “firmly convinced” of
Appellant’s guilt.
17a
agreement to the conduct at issue by a competent
person.” MCM, pt. IV, ¶ 60.a.(g)(7)(A).
“An expression of lack of consent through words or
conduct means there is no consent. Lack of verbal or
physical resistance does not constitute consent.”
MCM, pt. IV, ¶ 60.a.(g)(7)(A). “Submission resulting
from the use of force, threat of force, or placing
another person in fear also does not constitute
consent.” Id.
“All the surrounding circumstances are to be
considered in determining whether a person gave
consent.” MCM, pt. IV, ¶ 60.a.(g)(7)(C). “A current or
previous dating or social or sexual relationship by
itself or the manner of dress of the person involved
with the accused in the conduct at issue does not
constitute consent.” MCM, pt. IV, ¶ 60.a.(g)(7)(A).
“The burden is on the actor to obtain consent, rather
than the victim to manifest a lack of consent.” United
States v. McDonald, 78 M.J. 376, 381 (C.A.A.F. 2019).
d. Mistake of Fact
“[I]t is a defense to an offense that the accused
held, as a result of ignorance or mistake, an incorrect
belief of the true circumstances such that, if the
circumstances were as the accused believed them, the
accused would not be guilty of the offense.” Rule for
Courts-Martial (R.C.M.) 916(j)(1). If the mistake goes
to an element requiring general intent, it “must have
existed in the mind of the accused and must have been
reasonable under all the circumstances.” Id. Article
120(f), UCMJ, 10 U.S.C. § 920(f), makes clear an
accused may raise any applicable defenses under the
Rules for Courts-Martial to a charge of violating that
Article. Therefore, an honest and reasonable mistake
that the victim consented to the charged sexual
18a
assault is an affirmative defense to the charged
offense. See, e.g., McDonald, 78 M.J. at 379
(considering the defense of mistake of fact to a charge
of sexual assault).
While the quantity of evidence required to raise
the mistake of fact defense is low, the record must
contain at least some evidence supporting both the
subjective “honest” and the objective “reasonable”
mistaken belief. See United States v. Davis, 76 M.J.
224, 230 (C.A.A.F. 2017) (citation omitted) (“[W]hile
[the a]ppellant’s statement may constitute a scintilla
of evidence about his ‘honest belief,’ . . . there is not an
iota of evidence that such a belief was reasonable.”);
see also United States v. Willis, 41 M.J. 435, 438
(C.A.A.F. 1995) (citation omitted) (“The testimony
relied on by appellant tended to show objective
circumstances upon which a reasonable person might
rely to infer consent. However, they provided no
insight as to whether appellant actually or
subjectively did infer consent based on these
circumstances.”).
In a sexual assault case, it is an affirmative
defense to the charged offense that the accused had an
honest and reasonable mistake of fact that the victim
consented to the charged sexual act. See, e.g.,
McDonald, 78 M.J. at 379. A reasonable mistake of
fact cannot be based upon the negligent failure by an
Appellant to discover the true facts. See United States
v. Lee, No. ACM 39531 (f rev), 2020 CCA LEXIS 61, at
*22 (A.F. Ct. Crim. App. 26 Feb. 2020) (unpub. op.)
(citing McDonald, 78 M.J. at 379) (“[I]n this case, as
in McDonald, the military judge properly instructed
the members that any mistake of fact as to [the
victim’s] consent must have been non-negligent.”).
Negligence, in turn, is the absence of due care. When
19a
determining what is reasonable, “‘[d]ue care’ is ‘such
care as would be exercised by an ordinarily prudent
[person] when sober.’” United States v. Harrington,
No. ACM 39825, 2021 CCA LEXIS 524, at *17 (A.F.
Ct. Crim. App. 14 Oct. 2021) (unpub. op.) (quoting
United States v. Bragg, 4 C.M.R. 778, 782 (A.F.C.M.R.
1952); then citing Restatement (Second) of Torts
§ 283C cmt. d (Am. Law Inst. 1965) (if a drunken
person’s “conduct is not that of a reasonable man who
is sober, his voluntary intoxication does not excuse”
conduct that would otherwise be negligent)), rev’d on
other grounds, 83 M.J. 408 (C.A.A.F. 2023); see also
United States v. Moore, No. ACM S32477, 2018 CCA
LEXIS 560, at *12 (A.F. Ct. Crim App. 11 Dec. 2018)
(unpub. op.) (citation omitted) (“This defense has two
elements: one subjective and one objective. For the
subjective element, the ignorance or mistake must
have existed in Appellant’s mind. For the objective
test, the ignorance or mistake must be reasonable
under all the circumstances as assessed by an
ordinary, prudent, sober adult.”). The Government
bears the burden to prove beyond a reasonable doubt
that the accused did not form a reasonable belief that
he had obtained consent. R.C.M. 916(b)(1); see
McDonald, 78 M.J. at 381.
2. Analysis
a. Legal Sufficiency
The evidence introduced by the Government at
trial meets our standard of review for legal sufficiency.
LH testified that Appellant penetrated her vagina
with his penis and did so without her consent. She
further testified that prior to the penetration she
explicitly expressed her lack of consent to Appellant’s
escalation of physical contact beyond kissing. She told
20a
him she intended to remain celibate, that kissing was
“as far as it’s going to go,” and that their activities
would remain “PG.” She subsequently testified that
while Appellant was kissing her in an increasingly
insistent and aggressive manner, “[she] said no
probably about 20 to 30 times” with “no exaggeration
there.” LH further testified that prior to penetration
she attempted to prevent Appellant from removing his
shirt and placed her hand between his mouth and her
own mouth in an attempt to prevent further unwanted
kissing and otherwise resist Appellant’s advances.
Viewing the evidence in the light most favorable to the
Prosecution, Robinson, 77 M.J. at 297–98, and
drawing every reasonable inference from the evidence
of record in favor of the Prosecution, Barner, 56 M.J.
at 134, we conclude a rational trier of fact could have
found the essential elements of the crime and the
Government’s refutation of Appellant’s mistake of fact
defense beyond a reasonable doubt.
b. Factual Sufficiency
On appeal, Appellant claims two specific
deficiencies of proof. First, Appellant argues the
Government did not prove the elements of the offense
of sexual assault beyond a reasonable doubt at his
court-martial, where establishing Appellant’s guilt
depended heavily on the court members crediting
LH’s testimony as truthful. According to Appellant,
LH was an “unreliable and dishonest witness” who
had “multiple motives to fabricate” and, therefore, a
conviction mainly supported by her testimony was
factually insufficient. Second, Appellant argues the
Government did not disprove Appellant’s mistake of
fact defense beyond a reasonable doubt. Specifically,
Appellant contends LH’s “words and conduct during
the sexual assignation, coupled with Appellant’s
21a
knowledge of LH’s preference for rough sex led
Appellant to honestly believe that she consented to
vaginal intercourse.”
i) Appellant’s Contention that Evidence of
Offense was Insufficient
Appellant’s assignments of error include the
requisite specific showing of a deficiency of proof
under each theory to merit our review. See Article
66(d)(1)(B), UCMJ (2024 MCM). Therefore, we
proceed to weigh the evidence and determine
controverted questions of fact. We may dismiss, set
aside, or modify the finding, or affirm a lesser finding
only if, after weighing all the evidence, we are clearly
convinced that the Government did not prove beyond
a reasonable doubt that (1) Appellant committed a
sexual act upon LH by penetrating LH’s vulva with
his penis; and (2) Appellant did so without LH’s
consent. See MCM, pt. IV, ¶ 60.b.(2)(d); Article
66(d)(1)(B)(iii), UCMJ (2024 MCM).
In assessing the weight of the evidence, we must
focus on the issue of LH’s credibility, as her testimony
was the lynchpin of the Government’s case at trial.
Understanding we were not present for the witness
testimony at trial, we give “appropriate deference to
the fact that the trial court saw and heard the
witnesses and other evidence.” Article 66(d)(1)(B),
UCMJ (2024 MCM). In this case, we give greater
deference to the factfinder regarding witness
testimony than we do to other forms of evidence that
we can review in the same way as the factfinders did.
This factor weighs in favor of finding a factually
sufficient conviction.
We find LH’s testimony credible. In making this
finding, we give substantial weight to certain
22a
compelling pieces of evidence that support the
veracity of her testimony. Notably, the trial evidence
included the text LH sent to Appellant hours before
their meet-up on 19 July 2022 in which she told
Appellant, “I want to make sure this is not a booty call
thing[.]” This statement corroborates her testimony
that she did not want to engage in consensual sex with
Appellant that night. The evidence also included a
text message Appellant sent to LH the next day in
which he told her, “Hope you don’t hate me too much.”
This tends to show Appellant’s consciousness of guilt.
Further, LH’s testimony regarding what happened
did not include embellishments or allegations of
extreme physical force, use of weapons, or even verbal
threats, nor did it include allegations of intoxication
or other drugs, details she might have concocted had
she been manufacturing her allegation. Additionally,
she testified to some non-self-serving details that
added to—not detracted from—her credibility, such as
taking off her own clothes, laying in the bed while
Appellant retrieved a condom rather than trying to
leave, and not saying “no” or physically resisting after
she removed her clothes.
Appellant has proffered several reasons to
doubt LH’s veracity as a witness. These do not firmly
or clearly convince us the Government failed to prove
its case beyond a reasonable doubt.
Appellant suggests LH had two motives to lie
about whether her sexual activity with Appellant on
19 July 2022 was consensual. Specifically, Appellant
contends LH fabricated the sexual assault allegation
because she felt shame and humiliation from the way
Appellant viewed her and their relationship when
they had consensual “rough sex.” Appellant also
23a
suggests LH felt similar shame for her inability to
follow her therapist’s advice to stop engaging in selfdestructive behavior and remain celibate. Appellant
also maintains LH lied about the consensual nature of
his sexual activity with Appellant to curry favor with
her mother, thereby allowing LH to return to her
mother’s house after her mother had ejected her.
In the court’s view, while embarrassment may
have led LH to initially be less than forthcoming with
investigators regarding the nature of her prior
consensual rough sex with Appellant, she ultimately
testified to those things at trial, including revealing
details
that
likely
caused
her
additional
embarrassment. Moreover, LH’s failure to disclose the
details of their prior consensual rough sex strongly
suggests she understood the difference between
consensual sexual activity and sexual assault. In any
event, if embarrassment and shame were the motive
to lie, as Appellant claims, more embarrassment at
trial seems an unlikely course of action.
Regarding LH’s relationship with her mother, we
note that LH’s call to her mother was neither her first
(SS) nor second (sister) call after she left Appellant’s
apartment. We cannot say with certainty that LH did
not engage in attention-seeking, favor-seeking, or
deceptive behavior toward her mother. However, we
are not persuaded that the nature of their relationship
motivated LH’s initial report and continued
persistence through the trial alleging Appellant
sexually assaulted her. We similarly do not believe
that because LH achieved some measure of
reconciliation with her mother following reporting the
sexual assault necessarily means she was lying about
24a
the details of the assault itself.16 Moreover, no
evidence was introduced that this asserted motive to
lie still existed in September 2023 when LH testified
at trial.
Appellant also points to examples of instances in
which LH acted deceptively outside of court to support
the proposition she also deceived the court members
on the witness stand. Appellant suggests LH was
deceptive toward her mother, to whom she showed
marks and bruises, but failed to divulge the context of
the consensual, rough-sex-focused relationship with
Appellant in which the marks occurred. Appellant
also notes LH failed to disclose the nature of her
consensual sexual relationship with Appellant (to
include infliction of pain, being tied up, and restricted
breathing) when talking to SS, the sexual assault
nurse examiner, the investigating detectives, or her
counsel until two days prior to trial. In the court’s
view, it is understandable that LH did not want to
speak of these things out of embarrassment and
concern that her allegations of sexual assault would
be taken less seriously. This does not necessarily
mean she was lying about the sexual assault,
however. Moreover, it suggests LH clearly
distinguished between consensual rough sex with
Appellant and the sexual assault.
Appellant argues LH’s testimony cannot be trusted
because some of it contradicted her prior statements
about relevant matters. Appellant also contends
portions of LH’s testimony were internally
16 This reconciliation was apparently short-lived, as LH admitted
her mother had again told her she could no longer live at her
home by the time LH was interviewed by the police investigators
a couple months later.
25a
inconsistent. Appellant further argues the various
“memory lapses” indicate LH was unbelievable.
Specifically, Appellant notes LH could remember
certain details from the night in question, but not
others, including whether Appellant bit one or both
breasts or what Appellant’s response was to her
revelation that she had had sex with another man two
days after she broke up with Appellant. Appellant
contends these memory lapses were “convenient” to
avoid embarrassment and humiliation.
That said, although we may be less able to
determine the credibility of a witness’s testimony
regarding certain facts because we were not present
for her testimony and able to observe her demeanor,
we are more easily able to evaluate internal
inconsistencies in a witness’s testimony or
inconsistencies to which a witness might admit on the
record because we have the advantage of a verbatim
transcript with which to clearly and concretely
compare them.
We find LH’s testimony was sufficiently credible
that we are not clearly convinced that the finding of
guilty was against the weight of the evidence.
ii) Mistake of Fact
An honest and reasonable mistake that LH
consented to Appellant’s penetration of her vulva with
his penis is an affirmative defense to sexual assault.
McDonald, 78 M.J. at 379. At Appellant’s courtmartial, he clearly raised mistake of fact as an
affirmative defense. He claimed, through counsel, to
have had an honest belief (subjective test) that he had
obtained LH’s consent to the charged sexual acts and
that such a belief was reasonable (objective test).
Therefore, the Government had the burden to prove
26a
beyond a reasonable doubt that the defense did not
exist. More specifically, the Government needed to
prove beyond a reasonable doubt that Appellant’s
mistake was not honest or not reasonable.
This court, in reviewing Appellant’s conviction on
appeal, must weigh the trial evidence and decide
whether we are clearly convinced that the
Government failed its burden on both prongs. If the
Government met its burden on either prong, the
mistake of fact defense does not exculpate Appellant.
We find the trial evidence showed that Appellant
had an honest, though mistaken, belief that LH
consented to sexual intercourse to raise the defense of
mistake. While each piece of evidence of Appellant’s
honest mistake might be insufficient in isolation,
when aggregated they suggest Appellant held an
honest belief LH consented to his penetrating her
vulva with his penis. The following evidence
demonstrated Appellant’s perspective (listed in order
of occurrence surrounding the night in question):
•
Appellant told LH “I know you want it”
prior to penetrating her.
•
LH acknowledged that when Appellant
told her to remove her clothes, telling
her, “I know you want it,” she did so
without Appellant’s participation.
From the time Appellant told LH to
remove her clothes, LH never again
said “no” or engaged in any physical
resistance, including during the entire
time he penetrated her.
•
While engaging in the charged
penetration, Appellant engaged in
other sex-related acts that were
27a
consistent with how LH had asked him
to pleasure her during their prior
consensual sexual practice, including
inflicting pain and making it difficult
for her to breathe.
•
After finishing, Appellant laid his head
on LH’s chest and asked her how she
was feeling. During this time,
Appellant was “very affectionate”
toward LH, which LH admitted was
“highly confusing,” because from her
perspective Appellant had just sexually
assaulted her.
•
LH testified Appellant could tell LH
was not happy after the penetration
concluded. In this context, Appellant
told her she should not feel bad about
failing in her plan to remain celibate
because the fact they had sex was “on
him.”
•
After LH left Appellant’s home,
Appellant texted her, telling her,
“[C]ome back I’m horny[.]”
Taken together, these acts and comments suggest
Appellant subjectively believed LH consented to
sexual intercourse. Our review of the record has
revealed little evidence that provides insight into
Appellant’s mind that suggests Appellant’s mistake as
to LH’s consent was not honest. We conclude the
Government did not prove beyond a reasonable doubt
that Appellant did not honestly believe LH consented
to his penetration of her vulva with his penis.
Turning to the objective prong of the mistake of
fact defense, the question here is whether an
28a
“ordinary, prudent, sober adult,” under all the
circumstances known to Appellant at the time, would
reasonably believe Appellant had obtained LH’s
consent to the penetration.
We find LH’s words and conduct leading up to and
during the charged act, coupled with LH’s prior
expressed sexual preference and the nature of their
prior consensual sexual activity, actually would lead a
reasonable person to conclude LH was not consenting
to the sexual act of penetration of her vulva.
By itself, a potential sexual partner’s removal of
their own clothes might suggest consent to sexual
activity that follows. In this instance, however, LH’s
removal of her clothes did not occur in a vacuum. In
particular, LH verbally communicated her nonconsent
to Appellant in numerous ways. Before she removed
her clothes, LH told Appellant: (1) she did not want to
have sex with him (by text before she arrived at his
home); (2) she intended to remain celibate (while
talking with Appellant on his couch); (3) things would
remain “PG” (while kissing on the bed); (4) kissing was
“as far as it’s going to go.” Most importantly, LH told
Appellant “no” at least 20 times as he kissed her with
increasing urgency and while he was lying on top of
her and groping her on his bed.
Furthermore, LH physically communicated her
nonconsent. Though she had initially been kissing
Appellant back, once he started groping her body with
his hands, she stopped kissing him back. Moreover,
LH demonstrated her nonconsent to sexual
intercourse by attempting to physically resist, placing
her hand over Appellant’s mouth and her own mouth
to prevent continued kissing, then attempting to
prevent him from taking off his shirt.
29a
The reasonableness of Appellant’s interpretation
that he had obtained LH’s consent also includes
Appellant’s knowledge of his own acts. Appellant
physically overcame LH’s resistance by continuing to
kiss and grope her while she said “no” at least 20 to 30
times, moved her hand away from his mouth and hers
in order to keep kissing her, removed his shirt when
she attempted to prevent him from doing so while she
expressed she knew what his removing his shirt
meant regarding sexual activity, and kept kissing LH
long after she had stopped kissing him back.
“Submission resulting from the use of force, threat
of force, or placing another person in fear also does not
constitute consent.” MCM, pt. IV, ¶ 60.a.(g)(7)(A).
LH’s sustained verbal and physical expressions of
nonconsent did not convert her ultimate submission,
manifested by removing her clothes, into consent.
Under these circumstances, in light of numerous
verbal and physical indications of nonconsent, a
reasonable person would not assume that a person
complying with a directive to take off their clothes
implicitly constituted consent.
Appellant’s contention that LH’s enjoyment of
rough sex and the nature of their prior sexual acts
together rendered his mistake as to LH’s consent
reasonable is similarly unavailing. Appellant’s
argument amounts to suggesting that because LH
liked consensual rough sex, a reasonable person could
mistakenly think her actions during the charged act
constituted consent.17 This contention ignores how
17 Engaging in consensual acts of “rough sex”—even sex like that
Appellant and LH had engaged in that involved pretend
nonconsensual sex acts, consensual bondage, consensual
infliction of pain, and consensual breathing restriction—does not
license subsequent nonconsensual sexual activity. However, we
30a
different the circumstances surrounding the charged
act were from LH’s prior communication and actions
surrounding their prior consensual sexual behavior.
Specifically, their prior sexual encounters had
involved LH communicating what she wanted him to
do in an explicit and detailed way, including her
asking him to do things like restrict her breathing or
inflict greater pain. Simply stated, she regularly told
Appellant exactly what she wanted. During the sexual
assault, LH engaged in no such communication,
instead lying silent. Further, by all indications in the
record, during their prior consensual sexual
encounters, LH was an active and enthusiastic
participant. During the sexual assault, LH lay
passively while being penetrated. Moreover, though it
is clear that during their brief romantic relationship
LH enjoyed engaging in rough sex with Appellant,
including being tied up, having her breathing
restricted, and having pain inflicted through acts like
spanking, there is no evidence in the record that their
rough sex had included Appellant overcoming LH’s
feigned physical resistance, or her pretending to not
want sex by repeatedly telling him “no” and physically
resisting him when she really wanted sex.18 In short,
acknowledge such consensual behavior might, in some
circumstances, increase the possibility that participants in such
acts later might misperceive another participant’s consent.
Stated differently, in some circumstances, feigned nonconsent
may make the line between consent or nonconsent in subsequent
situations harder to discern and render misunderstanding
regarding consent more likely. The circumstances of this case,
however, clearly point in a different direction.
18 The record is ambiguous regarding the context and meaning of
two statements LH apparently made during her brief
relationship with Appellant: (1) “I want you to stop, but I really
don’t want [you] to all at the same time;” and (2) “if you keep
31a
LH’s behavior before and during the sexual assault
were nothing like those of their prior sexual activity.
LH’s sexual preferences and the nature of their prior
activity did not render reasonable Appellant’s mistake
of fact as to her consent. If anything, LH’s behavior
before and during the sexual assault was such a
departure from prior activity that knowledge of her
preferences and prior sexual activity would lead a
reasonable person to conclude she was not consenting.
For Appellant’s factual insufficiency claim
regarding the mistake of fact defense to prevail, we
must be clearly convinced by the evidence, as we have
weighed it, that the Government did not disprove the
mistake of fact defense beyond a reasonable doubt.
Harvey, 85 M.J. at 132. Though the mistake of fact
defense was clearly raised by the evidence, we are not
so convinced.
iii) Factual Sufficiency Conclusion
We have carefully considered Appellant’s claims of
factual insufficiency. Because we are not clearly
convinced it was against the weight of the evidence,
we are powerless to disturb the findings of guilty.
Article 66(d)(1)(B), UCMJ (2024 MCM).
doing this, you’re going to make me want it.” The former
statement was made by text, though it is unclear whether that
referred to something he was doing at present or fantasizing
about something that might occur when they were next together.
Regarding the latter statement, neither trial counsel nor trial
defense counsel asked LH to elaborate regarding when or how
that statement was communicated or what “this” and “it” meant.
32a
B. Admission of LH’s Statements to SS as an
Excited Utterance
Appellant argues the military judge abused his
discretion and committed prejudicial error in allowing
SS to testify about her out-of-court phone
conversation with LH approximately one hour after
the charged sexual assault. Appellant maintains the
military judge should have sustained his objection to
such testimony as hearsay, see Mil. R. Evid. 801–02,
rather than allow the Prosecution to offer it pursuant
to the hearsay exception for excited utterances, see
Mil. R. Evid. 803(2). We agree.
1. Additional Background
At trial, trial defense counsel timely objected to
SS’s testimony on the grounds of hearsay. The
military judge did not excuse the members or elicit
from SS what her testimony would be. Instead, the
military judge heard brief arguments by counsel and
cited the legal standard for the admission of excited
utterance evidence as set forth in United States v.
Arnold, 25 M.J. 129 (C.M.A. 1987), and United States
v. Donaldson, 58 M.J. 477 (C.A.A.F. 2003). The
military judge stated, in pertinent part:
While the court does not have the
benefit of the subject matter of the
statement, the court, based upon the
context of previous evidence admitted
before this forum, believes that the
statements
are
–
occurred
approximately an hour after the event.
They were, as the court understands,
about the incident that happened an
hour earlier. And, therefore, the court
does find that there is a sufficient
33a
nexus here and foundation laid to find
that this hearsay statement does fall
within the exception of an excited
utterance; and, therefore, is going to
overrule the objection.
In reaching his ruling, the military judge did not
articulate any other specific findings of fact regarding:
(1) whether the statement was “spontaneous, excited
or impulsive rather than the product of reflection and
deliberation;” (2) what event prompted the utterance
and whether that event was sufficiently “startling” for
the purpose of the excited utterance exception; or (3)
whether the declarant, LH, was “under the stress of
excitement caused by the event.” Mil. R. Evid. 803(2);
Arnold, 25 M.J. at 132 (citations omitted). Similarly,
though the military judge listed the “Donaldson
factors” (see below), and clearly considered the onehour lapse in time, he did not enter into the record his
findings regarding several of the Donaldson factors,
including whether the statement was made in
response to an inquiry, the age of declarant, the
physical and mental condition of the declarant,
characteristics of the events, or the subject matter of
the statement, the content of which the military judge
explicitly acknowledged he was unaware.
After overruling the Defense’s hearsay objection,
SS testified:
She called me very upset and said that
she had just left [Appellant’s] home and
that she had sex with him, but she did
not want to in the least. She was
pushing him off of her and saying no as
many times as she could get out. She
34a
was very clear about that, and she was
very upset over it.
2. Law
We review a military judge’s decision to admit or
exclude evidence for an abuse of discretion. United
States v. Smith, 83 M.J. 350, 355 (C.A.A.F. 2023)
(citation omitted). “An abuse of discretion occurs when
a military judge either erroneously applies the law or
clearly errs in making his or her findings of fact.” Id.
(quoting United States v. Donaldson, 58 M.J. 477, 482
(C.A.A.F. 2003)). “[W]here the military judge places on
the record his analysis and application of the law to
the facts, deference is clearly warranted. Id.
(alteration in original) (quoting United States v.
Finch, 79 M.J. 389, 397 (C.A.A.F. 2020)).
Mil. R. Evid. 803(2) provides that an “excited
utterance,” defined as a “statement relating to a
startling event or condition, made while the declarant
was under the stress of excitement that it caused,” is
an exception to the general prohibition on hearsay
evidence. See Mil. R. Evid. 801, 802; United States v.
Bowen, 76 M.J. 83, 87–88 (C.A.A.F. 2017). “[T]o
qualify as an excited utterance: (1) the statement
must be ‘spontaneous, excited or impulsive rather
than the product of reflection and deliberation’; (2) the
event prompting the utterance must be ‘startling’; and
(3) the declarant must be ‘under the stress of
excitement caused by the event.’” United States v.
Henry, 81 M.J. 91, 96 (C.A.A.F. 2021) (quoting Arnold,
25 M.J. at 132).
“The proponent of the excited utterance has the
burden to show by a preponderance of the evidence
that each element is met.” Id. (citations omitted). “The
guarantee of trustworthiness of an excited utterance
35a
is that the statement was made while the declarant
was still in a state of nervous excitement caused by a
startling event.” United States v. Chandler, 39 M.J.
119, 123 (C.M.A. 1994) (citation omitted). “As a
general proposition, where a statement relating to a
startling event does not immediately follow that
event, there is a strong presumption against
admissibility under [Mil. R. Evid.] 803(2).” Donaldson,
58 M.J. at 484 (citation omitted).
In determining whether a declarant
was under the stress of a startling
event at the time of his or her
statement, courts have looked to a
number of factors. These may include:
“the lapse of time between the startling
event and the statement, whether the
statement was made in response to an
inquiry, the age of the declarant, the
physical and mental condition of the
declarant, the characteristics of the
event, and the subject matter of the
statement.”
Id. at 483 (quoting Reed v. Thalacker, 198 F.3d 1058,
1061 (8th Cir. 1999)) (additional citation omitted).
“A finding or sentence . . . may not be held
incorrect on the ground of an error of law unless the
error materially prejudices the substantial rights of
the accused.” Article 59(a), UCMJ, 10 U.S.C. § 859(a).
Whether an error is harmless is a question of law we
review de novo. Bowen, 76 M.J. at 87 (quoting United
States v. McCollum, 58 M.J. 323, 342 (C.A.A.F. 2003)).
“For nonconstitutional errors, the Government must
demonstrate that the error did not have a substantial
influence on the findings.” Id. (quoting McCollum, 58
36a
M.J. at 342). “We evaluate the harmlessness of an
evidentiary ruling by weighing: ‘(1) the strength of the
Government’s case, (2) the strength of the defense
case, (3) the materiality of the evidence in question,
and (4) the quality of the evidence in question.’” Id. at
89 (quoting United States v. Kerr, 51 M.J. 401, 405
(C.A.A.F. 1999)).
3. Analysis
a. Abuse of Discretion
As a preliminary matter, we find that deference to
the military judge’s evidentiary ruling is not “clearly
warranted” because he did not “place[ ] on the record
his analysis and application of the law to the facts.”
Smith, 83 M.J. at 355. Although the military judge
referenced Arnold and Donaldson, he neither stated
nor applied the three prongs of the “Arnold test” on
the record. The military judge also did not indicate the
burden or standard of proof he was applying.
The essential question remains whether a
preponderance of the evidence supported admitting
LH’s statement to SS as an excited utterance under
the three-part “Arnold test” as reiterated by our
superior court in Henry. 81 M.J. at 96. According to
this test, we must decide whether the event prompting
the utterance was “startling.” Henry, 81 M.J. at 96
(quoting Arnold, 25 M.J. at 132). The Government
contends the startling event was LH being sexually
assaulted by Appellant approximately one hour before
she made the statements to SS. According to the
Government, LH “was curled up in a ball while he
callously spoke to her, and . . . once she was over her
‘shock’ enough to leave Appellant’s presence and
residence, [LH] was ‘crying screaming’ as soon as she
could speak with another human being.”
37a
Neither the parties nor the military judge argued
or considered on the record, however, whether LH’s
delayed realization of what had occurred itself
constituted the startling event and we offer no opinion
regarding that possibility. We assume without
deciding that such an event was startling. However,
we find the preponderance of the evidence does not
support the other two prongs of the Arnold test.
In particular, we find LH’s statements to SS were
not “spontaneous, excited or impulsive rather than the
product of reflection and deliberation.” Arnold, 25
M.J. at 132. Even if we accept LH’s and SS’s testimony
that LH was emotional and crying when making the
statements to SS, we cannot discount that LH had the
presence of mind to describe her encounter with
Appellant without revealing their history of rough
sex. This weighs in favor of us finding LH spoke after
due reflection and deliberation rather than
spontaneously and impulsively. In fact, according to
LH’s own testimony, the statements occurred after she
was “processing what happened.” Further, LH
testified it was not until LH called SS that she
“started putting it together” (what happened) and
“realizing how bad it was.” LH also acknowledged the
“emotionals [sic] didn’t all the way kick in” until after
she left Appellant’s apartment and after she was
“processing.” As we have recently noted, one’s emotion
at the time of making the statement is not dispositive
regarding whether the statements are “spontaneous,
excited, or impulsive, rather than the product of
reflection or deliberation.” See, e.g., United States v.
Doroteo, No. ACM 40363, 2025 CCA LEXIS 49, at *65
n.19 (A.F. Ct. Crim. App. 7 Feb. 2025) (unpub. op.).
LH’s emotion at the time of her statements to SS did
not demonstrate she was “still in a state of nervous
38a
excitement caused by a startling event,” Chandler, 39
M.J. at 123 (emphasis added). By her own
explanation, she did not become emotional or begin
crying until after she reflected on (“process[ed]”) what
had happened.
Second, applying the Donaldson factors, we
conclude LH’s statement to SS was not “under the
stress of excitement caused by the event.” The
military judge’s analysis of the admissibility of LH’s
statement to SS focused entirely on the fact that LH’s
statement occurred “about an hour” after the
precipitating startling event. Although the military
judge correctly understood that the amount of time
between the event and the utterance is not dispositive,
“where a statement relating to a startling event does
not immediately follow that event, there is a strong
presumption against admissibility under [Mil. R.
Evid.] 803(2).” Donaldson, 58 M.J. at 484.
Accordingly, we apply the criteria our superior court
has identified to determine whether a declarant was
under the stress of the startling event at the time of
the statement.
In this case, “the lapse of time between the
startling event and the statement” was significant,
not only because it was an hour, but because of what
occurred during that hour. According to LH’s
testimony, after the sexual assault concluded and
before she made the statement to SS about what
happened, the following occurred: (1) LH put on her
clothes and continued to lie in Appellant’s bed; (2)
Appellant laid his head on her chest and was
affectionate toward her while they talked; (3) LH
curled up in a ball on Appellant’s couch; (4) Appellant
noticed LH seemed upset about something and told
her she should not feel bad about breaking her
39a
intention to remain celibate because it was “all him;”
(5) LH revealed to Appellant that she had had sex
with another man a week earlier, two days after she
and Appellant broke up on 9 July 2022, and Appellant
responded to this news in some way; (6) Appellant
used his phone to order food that was delivered before
LH left Appellant’s apartment; (7) after 45 minutes to
an hour during which she was sometimes talking with
Appellant and sometimes alone, LH left Appellant’s
apartment; and (8) as LH left Appellant’s apartment
she was “processing what happened” and the
“emotionals [sic] didn’t all the way kick in until after
[she] left.” LH’s statements about the startling event
did not immediately follow the event, and the
circumstances of what occurred during the one-hour
lapse of time did not overcome the “strong
presumption against admissibility under [Mil. R.
Evid.] 803(2).” Donaldson, 58 M.J. at 484. To the
contrary, what occurred between the startling event
and LH’s retelling of it to SS weighs significantly
against admissibility, especially in light of the
underlying premise of excited utterances, which is
that “[t]he guarantee of trustworthiness of an excited
utterance is that the statement was made while the
declarant was still in a state of nervous excitement
caused by a startling event.” Chandler, 39 M.J. at 123
(citation omitted).
Though not clear from the record, it appears at
least some of LH’s statement to SS that “Appellant
had sex with her but she did not want to in the least”
was not made in response to an inquiry. However,
because of the events detailed above, including the
fact LH spent time “processing” what happened prior
to making the utterances, we find the fact LH reported
the alleged assault to SS rather than responding to an
40a
inquiry about it weighs neither in favor of, nor against
admissibility, under the excited utterance exception.
As our superior court has observed, in “cases in
which the declarant is young, particularly where the
statement was made during the child’s first
opportunity alone with a trusted adult,” courts have
been more flexible regarding the presumption that
statements not made “immediately” after the startling
even are inadmissible. Donaldson, 58 M.J. at 484
(citations omitted). The cases Donaldson cited for this
proposition all involved minors, and usually very
young children. See id. However, here LH was an
adult at the time of the incident and there is no basis
to conclude LH’s age made her more or less susceptible
to an increased or prolonged state of excitement thus
making her declaration more or less trustworthy.
Nothing in the record indicates LH was
significantly affected by any physical or mental
condition at the time of the startling event or
declaration that would have made her more or less
susceptible to excitement (generally), heightened
excitement, or prolonged excitement. LH testified that
she had not been using alcohol or drugs during the
incident or when making the utterances to SS. On
balance, this factor does not weigh in either direction.
Likewise, we find the characteristics of the event
do not particularly favor or disfavor the admissibility
of the statement. Being sexually assaulted could
certainly be startling and lead to excitement, and,
according to both LH and SS, LH was emotional when
she made the declaration to SS. However, considering
the intervening events discussed above between the
event and the declaration, the characteristics of the
41a
event point
admissibility.
in
neither
direction
regarding
The subject matter of the statement ultimately
elicited from SS was directly related to the startling
event alleged. While Appellant contends LH’s
dishonesty to SS regarding the nature of LH’s
consensual sexual relationship vitiated the reliability
of the declaration at issue here, we find that the close
nexus between the statement and its subject weighs
in favor of admissibility.
Considered together, we find the Donaldson
factors weigh against admission of LH’s statement to
SS. We conclude that the evidence regarding the
circumstances of the startling event, the statements,
and the intervening events do not support the
underlying assumption of the excited utterance
exception to the prohibition on hearsay. With two of
three elements of the Arnold test not met, we find the
military judge abused his discretion when he admitted
LH’s statement to SS as an excited utterance.
b. Prejudice
“We evaluate the harmlessness of an evidentiary
ruling by weighing: ‘(1) the strength of the
Government’s case, (2) the strength of the defense
case, (3) the materiality of the evidence in question,
and (4) the quality of the evidence in question.’”
Bowen, 76 M.J. at 89 (quoting Kerr, 51 M.J. at 405).
Although legally and factually sufficient, the
Government’s overall case was not particularly
strong, suggesting, under the “every little bit helps”
theory, that the erroneously admitted statement was
important. Where there is little evidence other than
that offered by the complaining witness, “the
credibility of the complaining witness is of central
42a
importance.” See United States v. Warda, 84 M.J. 83,
94 (C.A.A.F. 2023) (citation omitted); see also United
States v. Jasper, 72 M.J. 276, 281 (C.A.A.F. 2013)
(concluding where the victim’s testimony was critical
to the Government’s case and the defense theory was
that she fabricated at least some allegations against
the accused, “the credibility of the putative victim
[wa]s of paramount importance”). The Government’s
case was arguably strongest regarding the elements of
its prima facie case, especially LH’s lack of consent.
But LH’s testimony was the crux of the Government’s
case, and her credibility was arguably damaged by
multiple lines of inquiry during cross-examination, as
detailed in our discussion of factual sufficiency above.
Accordingly, the erroneously admitted statement
somewhat supported the strongest aspect of the
Government’s case.
The Government’s case was weakest where the
Appellant’s case was strongest—Appellant’s mistake
of fact defense. Importantly, LH’s statement to SS did
not address or substantially affect that defense. Thus,
the statement bolstered the part of the Government’s
case that was strongest even without the statement
and did little to counter the strongest aspect of
Appellant’s case. Accordingly, regarding the relative
strength of the Government’s and Appellant’s cases,
we find admission of the statement to have positively,
but marginally, impacted the strength of the
Government’s case and negatively, but marginally,
impacted Appellant’s case.
Addressing the materiality and quality of the
erroneously admitted statement requires further
inquiry into the statement’s role in the Government’s
case. The Government offered sufficient evidence to
make its prima facie, legally sufficient, case without
43a
the erroneously admitted statement. Importantly,
this is not a case where the excited utterance was the
only evidence from an alleged victim who was not
testifying at trial. See, e.g., Doroteo, unpub. op. at *70–
71 (the alleged victim did not testify regarding
assault). Admitting LH’s statements to SS did not
reveal significant information otherwise unavailable
to the court-martial because when the statements
were offered, LH had already testified about the
sexual assault in much greater detail than her
declaration to SS subsequently conveyed. SS was the
only witness the Government called other than LH.19
Although offered and admitted for the truth of the
matter asserted (the truth of the sexual assault), the
primary value of LH’s utterance to the Government’s
case was in bolstering LH’s testimony regarding the
sexual assault against challenges to LH’s credibility
and related defense assertions of motives for LH to lie.
The Government called SS as a witness to verify LH’s
claim that she reported the offense to others and to at
least imply that, because LH reported the event not
long after the alleged assault, her report must have
been true. The statement thus provided some value to
the Government’s case.
In closing argument, trial counsel commented
briefly on LH’s statement to SS, referencing the
The Government’s documentary evidence on findings was
similarly slim. The text messages between the parties supported
both parties’ theories of the case and the photographs from the
sexual assault nurse’s examination were, without more details
regarding the extent and nature of the apparently minor injuries
depicted, of marginal support to the Government’s case. Indeed,
the panel acquitted Appellant of the offense related to the biting
that was alleged to have caused the injuries supposedly depicted
in the photographs.
19
44a
military judge’s instructions to consider “the extent to
which each witness is either supported or contradicted
by other evidence . . . .” Trial counsel told the
members:
You heard testimony from [LH]; but
what else supports that testimony? You
heard from [SS who] . . . spoke to [LH]
after she left [Appellant’s] apartment.
She testified to how [LH] was over the
phone. She was upset. She was crying.
[SS] admitted to you that she couldn’t
recall – [SS] could not recall everything
that [LH] said, but, she knew one thing
was clear, [LH] went over to the
accused’s home and he had sex with her
and she did not want to. No consent.
Evidence that is supported by other
evidence.
We recognize that LH’s statement to SS may have
somewhat boosted LH’s credibility in the abstract. But
the statement and its timing did little to disprove the
Defense’s specific theories of LH’s motives to lie—that
she was lying to her mother about the assault to
regain her mother’s favor and permission to live at her
home or that LH felt shame brought on by Appellant’s
reaction to her revelation that she had sex with
another man. Trial defense counsel successfully
brought out the fact that LH did not disclose the full
details of her relationship with Appellant to SS,
perhaps further diminishing the impact of the
statement. Moreover, the statement did nothing to
disprove Appellant’s mistake of fact defense.
Accordingly, we find the erroneously admitted
statement to be only marginally material.
45a
Similarly, the quality of the erroneously admitted
evidence was marginal. SS acknowledged she did not
remember everything LH said in the phone call. SS’s
recounting of LH’s statement to her included a
detail—that LH was “pushing [Appellant] off of her”
during the alleged sexual assault—that LH
disclaimed at trial. Finally, the statement contained
little detail regarding the sexual assault itself.
Thus, we find LH’s statements to SS did not have
a substantial influence on the findings and Appellant
was not prejudiced by their erroneous admission.
III. CONCLUSION
The findings as entered are correct in law and fact.
Article 66(d), UCMJ, 10 U.S.C. § 866(d) (2024 MCM).
In addition, the sentence is correct in law and fact, and
no error materially prejudicial to the substantial
rights of Appellant occurred. Articles 59(a) and 66(d),
UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the
findings and the sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
46a
United States Court of Appeals
for the Armed Forces
Washington, D.C.
United States,
Appellee
USCA Dkt. No. 25-0018/AF
Crim.App. No. 24001
v.
ORDER DENYING PETITION
Luis A.
Torres Gonzalez,
Appellant
On consideration of the petition for grant of review
of the decision of the United States Air Force Court of
Criminal Appeals, it is by the Court, this 17th day of
November, 2025,
ORDERED:
That the petition is hereby denied.
For the Court,
/s/
cc:
Malcolm H. Squires, Jr.
Clerk of the Court
The Judge Advocate General of the Space Force
Appellate Defense Counsel (Castanien)
Appellate Government Counsel (Payne)
47a
UNITED STATES AIR FORCE
COURT OF CRIMINAL APPEALS
________________________
No. ACM 24001
________________________
UNITED STATES
Appellee
v.
Luis A. TORRES GONZALEZ
Master Sergeant (E-7), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial
Judiciary1
Decided 29 August 2025
________________________
Military Judge: Charles E. Wiedie.
Sentence: Sentence adjudged 30 June 2023 by SpCM
convened at MacDill Air Force Base, Florida. Sentence
entered by military judge on 17 July 2023:
Confinement for 3 days, reduction to E-6, and a
reprimand.
For Appellant: Captain Michael J. Bruzik, USAF.
Appellant appeals his conviction under Article 66(b)(1)(A),
Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 866(b)(1)(A) (Manual for Courts-Martial, United States (2024
ed.)).
1
48a
For Appellee: Colonel Steven R. Kaufman, USAF;
Lieutenant Colonel J. Pete Ferrell, USAF; Major
Vanessa Bairos, USAF; Major Brittany M. Speirs,
USAF; Mary Ellen Payne, Esquire.
Before JOHNSON, KEARLEY,
Appellate Military Judges.
and
MCCALL,
Judge KEARLEY delivered the opinion of the court, in
which Chief Judge JOHNSON and Judge MCCALL
joined.
________________________
This is an unpublished opinion and, as such,
does not serve as precedent under AFCCA Rule
of Practice and Procedure 30.4.
________________________
KEARLEY, Judge:
A special court-martial composed of officer
members convicted Appellant, contrary to his pleas, of
one charge and specification of wrongful use of a
controlled substance (cocaine) in violation of Article
112a, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 912a;2 and one charge and specification of
failure to obey a lawful general regulation, on divers
occasions,
by
wrongfully
using
delta-8
tetrahydrocannabinol (Delta-8 THC), in violation of
Article 92, UCMJ, 10 U.S.C. § 892. The members
sentenced Appellant to confinement for three days,
reduction to the grade of E-6, and a reprimand. The
convening authority took no action on the findings or
2 Unless otherwise noted,
all references in this opinion to the
UCMJ are to the Manual for Courts-Martial, United States (2019
ed.).
49a
sentence; however, the convening authority provided
language for the reprimand.3
Appellant raises four issues on appeal, which we
have reworded: (1) whether Appellant’s finding of
guilty for failure to obey a lawful general regulation
by wrongfully using delta-8-tetrahydrocannabinol
was factually and legally sufficient; (2) whether
Appellant is due relief because of the Government’s
post-trial delay; (3) whether Appellant was deprived
of his constitutional right to a unanimous verdict; and
(4) whether Appellant’s finding of guilty for unlawful
use of cocaine was factually and legally sufficient.4
As to issue (3) Appellant is not entitled to relief.
See United States v. Anderson, 83 M.J. 291 (C.A.A.F.
2023) (holding that a military accused does not have a
right to a unanimous verdict under the Sixth
Amendment,5 the Fifth Amendment’s due process
clause, or the Fifth Amendment’s component of equal
protection6), cert. denied, 144 S. Ct. 1003 (2024).
In regard to issue (1) we agree with Appellant and
set aside his finding of guilty for failure to obey a
lawful general order. As to the remaining assignments
of error, we find no error that materially prejudiced
Appellant’s rights. We affirm the remaining findings
of guilty and sentence, as reassessed.
3 Appellant requested deferment of reduction in grade until entry
of judgment, which the convening authority denied.
4 Issue (4) was personally raised by Appellant pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
5 U.S. CONST. amend. VI.
6 U.S. CONST. amend. V.
50a
I. BACKGROUND
At the time of his court-martial, Appellant was a
Master Sergeant with nearly 20 years of service. He
was experiencing sleep issues, chronic pain, and back
issues, which he claimed were exacerbated by
numerous deployments and surgeries. One night he
went to dinner at a restaurant with his wife, daughter,
and some friends. He went into the bathroom of the
restaurant, where he heard some sniffing noises from
a stall that sounded like someone was using cocaine.
Appellant asked the person if he could have some and
the person provided him with a bag and a straw.
Appellant inhaled cocaine through the straw and his
nostrils and returned to his family and friends at the
restaurant.7
Two days later Appellant was selected for a
random urinalysis at MacDill Air Force Base. Several
weeks later, Appellant’s sample came back positive for
the metabolite for cocaine. Appellant was brought into
the local office of Air Force Office of Special
Investigations (OSI) for an interview. Appellant
acknowledged his rights and provided a statement to
the investigators where he told them he used cocaine
in the bathroom at the restaurant. The investigators
asked Appellant if he used any other drugs. Appellant
said he did not. Appellant consented to a phone
search. The investigators looked at the websites
Appellant had recently viewed. One of the searches on
Google displayed the query, “how do I beat a
marijuana test.” The investigators asked Appellant
about this Internet search as they had not discussed
7 This description of events is based on Appellant’s confession to
Air Force Office of Special Investigations investigators and his
testimony.
51a
marijuana. Appellant claimed he only typed in “drug
test” and clicked on the first web result that popped
up, which was a marijuana test.
After completing his interview, Appellant provided
another urine sample as part of a reinspection
pursuant to United States v. Bickel, 30 M.J. 277
(C.M.A. 1990). This test came back positive for Delta8 tetrahydrocannabinol (hereinafter, Delta-8 THC).
Appellant was brought to OSI for a second interview
after his Delta-8 THC urinalysis results. In this
interview, Appellant stated that the positive result
may have come from using orange gummies that a
friend gave him to help him sleep. He stated he ate the
gummies for two weeks prior to the second urinalysis.
During this time, Appellant was on leave, and claimed
he believed the gummies contained cannabidiol (CBD)
and were a “[m]elatonin type medicine” to help him
sleep. He also stated that he did not know there was a
connection between CBD and Delta-8 THC.
Appellant testified at his trial on the merits, along
with several other witnesses who testified on
Appellant’s behalf. Both Appellant and the witnesses
shared that Appellant seemed to suffer physical and
mental trauma after he volunteered for a particular
deployment.
Appellant
described
witnessing
disturbing images related to an aircraft returning
from the withdrawal of American military forces from
Afghanistan. He also described other deployments
where he witnessed seeing the remains of service
members being transported back from Iraq and
Afghanistan. Appellant also testified about his back
injury, multiple back surgeries, and the resulting
surgical complications. He highlighted the near
constant pain he has been in for the last 10 years. He
also described being unable to fall asleep and told the
52a
members he had been diagnosed with several mental
health conditions.
II. DISCUSSION
A. Legal and Factual Sufficiency
Appellant argues that his finding of guilty for use
of Delta-8 THC was factually and legally insufficient
because, in part, the regulation that Appellant was
convicted of violating was obsolete. The Government
agrees that Appellant’s finding of guilty for this
offense was legally insufficient and the conviction
should be set aside and dismissed with prejudice. We
agree.
Additionally, Appellant argues that the finding of
guilty for unlawful use of cocaine was factually and
legally insufficient. We disagree with Appellant’s
arguments and find the conviction for unlawful use of
cocaine to be legally and factually sufficient.
1. Additional Background
a. Failure to obey a lawful general
regulation
The Government charged Appellant with failing to
obey Department of the Air Force Manual (DAFMAN)
44-197, Guidance Memorandum, dated 16 August
2021, paragraph 1.2.2.1, on divers occasions, by
wrongfully using Delta-8 tetrahydrocannabinol, a
synthetic tetrahydrocannabinol. The memorandum
indicated that it “becomes void after one year has
elapsed from the date of this Memorandum, or upon
publication of an Interim Change or rewrite of
DAFMAN 44-197, whichever is earlier.”
The Government charged Appellant with
committing the alleged offense “on divers occasions
53a
between on or about 1 September 2022 and on or
about 14 September 2022.”
b. Unlawful Use of Cocaine
The Government charged Appellant with
wrongfully using cocaine. Appellant tested positive for
cocaine at 220 nanograms per milliliter. The
Department of Defense legal cutoff for cocaine is 100
nanograms per milliliter. Following a rights
advisement, Appellant confessed that he had ingested
three “bumps” of cocaine while in the restroom of a
restaurant near Tampa, Florida. Appellant admitted
to law enforcement that he knew the consumption of
cocaine was illegal and no one tricked, threatened, or
coerced him into using cocaine.
During trial, Appellant testified that he ingested
cocaine. Appellant also testified that his use of cocaine
was “an attempt to take [his] life” and that he “wanted
to overdose.” Appellant testified that while he was
ingesting the cocaine, he did not consciously think
about whether using it was illegal.
2. Law
We review issues of legal sufficiency de novo.
United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002) (citation omitted). We review
questions of factual sufficiency when an appellant
asserts an assignment of error and shows a specific
deficiency in proof. United States v. Harvey, 85 M.J.
127, 129 (C.A.A.F. 2024) (citing Article 66(d)(1)(B),
UCMJ, 10 U.S.C. § 866(d)(1)(B)). Our assessment of
legal and factual sufficiency is limited to the evidence
produced at tri-al. United States v. Rodela, 82 M.J.
521, 525 (A.F. Ct. Crim. App. 2021) (citing United
States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993)).
54a
“The test for legal sufficiency is whether, after
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. Robinson, 77 M.J.
294, 297–98 (C.A.A.F. 2018) (citation omitted). “[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). As a result, “[t]he standard for legal
sufficiency involves a very low threshold to sustain a
conviction.” United States v. King, 78 M.J. 218, 221
(C.A.A.F. 2019) (alteration in original) (citation
omitted). “This deferential standard impinges upon
the factfinder’s discretion only to the extent necessary
to guarantee the fundamental protection of due
process of law.” United States v. Mendoza, 85 M.J. 213,
217 (C.A.A.F. 2024) (internal quotation marks and
citation omitted).
The factual sufficiency standard in the current
version of Article 66(d)(1)(B), UCMJ, Factual
Sufficiency Review, states:
(i) In an appeal of a finding of guilty under
subsection (b), the Court may consider whether the
finding is correct in fact upon request of the accused if
the accused makes a specific showing of a deficiency of
proof.
(ii) After an accused has made a showing, the
Court may weigh the evidence and determine
controverted questions of fact subject to—
(I) appropriate deference to the fact that the
trial court saw and heard the witnesses and other
evidence; and
55a
(II) appropriate deference to findings of fact
entered into the record by the military judge.
(iii) If, as a result of the review conducted under
clause (ii), the Court is clearly convinced that the
finding of guilty was against the weight of the
evidence, the Court may dismiss, set aside, or modify
the finding, or affirm a lesser finding.
10 U.S.C. § 866(d)(1)(B), Manual for Courts-Martial,
United States (2024 ed.) (2024 MCM) (emphasis
added).
“[T]he requirement of ‘appropriate deference’ when
a [Court of Criminal Appeals (CCA)] ‘weigh[s] the
evidence and determine[s] controverted questions of
fact’ . . . depend[s] on the nature of the evidence at
issue.” Harvey, 85 M.J. at 130 (third and fourth
alterations in original). It is within this court’s
discretion to determine what level of deference is
appropriate. Id.
“[T]he quantum of proof necessary to sustain a
finding of guilty during a factual sufficiency review is
proof beyond a reasonable doubt, the same as the
quantum of proof necessary to find an accused guilty
at trial.” Id. at 131 (internal quotation marks
omitted).
For this court “to be ‘clearly convinced that the
finding of guilty was against the weight of the
evidence,’ two requirements must be met.” Id. at 132.
First, we must decide that evidence, as we weighed it,
“does not prove that the appellant is guilty beyond a
reasonable doubt.” Id. Second, we “must be clearly
convinced of the correctness of this decision.” Id.
Military jurisprudence has long held that “direct
evidence of a crime or its elements is not required for
56a
a finding of guilty; circumstantial evidence may
suffice.” United States v. Hart, 25 M.J. 143, 147
(C.M.A. 1987) (citation omitted).
In order to convict Appellant of failure to obey a
lawful general regulation, as alleged in the
Specification of Charge II, the Government was
required to prove: (1) that there was in effect a certain
lawful general regulation, to wit: Department of the
Air Force Manual 44-197, Guidance Memorandum,
dated 16 August 2021, paragraph 1.2.2.1; (2) that
Appellant had a duty to obey such regulation; and (3)
that on divers occasions between on or about 1
September 2022 and 14 September 2022, within the
continental United States, Appellant failed to obey
this lawful general regulation by wrongfully using
Delta-8
tetrahydrocannabinol,
a
synthetic
tetrahydrocannabinol. Manual for Courts-Martial,
United States (2019 ed.) (MCM), pt. IV, ¶ 18.b.(1).
In order to convict Appellant of wrongful use of
cocaine, a Schedule I controlled substance, as alleged
in the Specification of Charge I, the Government was
required to prove: (1) within the continental United
States, on or about 12 August 2022, Appellant used a
controlled substance (cocaine); and (2) the use by
Appellant was wrongful. The term “wrongful” means
without legal justification or authorization. See MCM,
pt. IV, ¶ 50.c.(5). A “controlled substance” means any
substance that is included in Schedules I through V
established by the Controlled Substances Act of 1970
(21 U.S.C. § 812). MCM, pt. IV, ¶ 50.c.(1).
3. Analysis
a. Failure to obey a lawful general
regulation
57a
Appellant argues that the regulation he was
convicted of violating was obsolete. We agree.8 The
first element of Article 92(1), UCMJ, required the
Government to prove the guidance memorandum was
in effect at the time of the alleged misconduct. The
Government provided excerpts from the guidance
memorandum which stated, “This memorandum
becomes void after one year has elapsed from the date
of this Memorandum, or upon publication of an
Interim Change or rewrite of DAFMAN 44-197,
whichever is earlier.” The date of the memorandum as
reflected in both the Prosecution Exhibit related to the
memorandum and the charging language on the
specification was 16 August 2021, which meant the
guidance memorandum, absent an Interim Change or
DAFMAN 44-197 rewrite, became void on 16 August
2022. The Government charged Appellant with
committing the alleged offense “on divers occasions
between on or about 1 September 2022 and on or
about 14 September 2022.” The “guidance
memorandum” was not in effect at the time Appellant
used Delta-8 THC. As a result, we set aside the
findings of guilty to Charge II and its Specification
and dismiss Charge II and its Specification with
prejudice. See United States v. Henderson, No. ACM
40419, 2025 CCA LEXIS 172, at *18 (A.F. Ct. Crim.
App. 18 Apr. 2025) (unpub. op.) (setting aside a
finding of guilty to the failure to obey a lawful
regulation because the Government failed to prove
beyond a reasonable doubt that the appellant’s
8 Appellant separately argues his conviction for failing to obey a
lawful regulation was legally and factually insufficient because
the Government did not prove the required facts. Since we agree
with Appellant’s argument on the first basis, we do not consider
Appellant’s additional arguments on this issue.
58a
misconduct occurred when the
regulation concerned was in effect).
lawful
general
b. Unlawful use of cocaine
Appellant claims he raised a “specific deficiency in
proof” triggering a factual sufficiency review of the
findings under Article 66, UCMJ, by challenging
whether the Government proved his unlawful act of
using cocaine was voluntary. Appellant claims that
the evidence “adduced at trial shows [he] was in a
state of extreme physical and mental pain that
compromised his decision-making capacity” and
“undermin[ed] the notion that he purposely engaged
in criminal behavior by knowingly consuming
cocaine.”
We find the Government provided sufficient
evidence for all elements of the offense of wrongful use
of cocaine through witness testimony, physical
evidence, and Appellant’s own testimony. This
evidence included a positive urinalysis result,
Appellant’s interview with law enforcement, and his
signed written statement. Viewing the evidence in the
light most favorable to the Government, we find that
a rational trier of fact could have found the essential
elements of wrongful use of cocaine beyond a
reasonable doubt. See Robinson, 77 M.J. at 297−98.
Therefore, we find Appellant’s convictions legally
sufficient.
As to the factual sufficiency of the specifications,
we assume without deciding that Appellant properly
made a request for a factual sufficiency review by
asserting a specific showing of a deficiency of proof as
required under Article 66(d)(1)(B)(i), UCMJ.
However, having given appropriate deference to the
fact that the members saw and heard the witnesses
59a
and other evidence, we are not clearly convinced that
Appellant’s conviction for wrongful use of cocaine is
against the weight of the evidence. Thus, the finding
for this offense is factually sufficient.
B. Post-Trial Delay
Appellant seeks relief due to, what he
characterizes as, the Government’s “excessive delay”
in processing his court-martial after the military
judge signed the entry of judgment. Appellant claims
that this delay was due to the Government’s 81-day
delay in informing Appellant of his right to appeal and
the 129-day delay in delivering a complete record of
trial after his case was docketed with this court.
Appellant asks us to provide relief by setting aside his
reduction in rank. We find no relief is warranted.
1. Additional Background
Appellant was sentenced on 30 June 2023. The
military judge signed the entry of judgment on 13 July
2023. On 19 September 2023, the Government
provided Appellant with a summarized transcript
within a record of trial and a letter advising him of his
right to file for appeal before this court within 90 days
pursuant to Article 66, UCMJ, 10 U.S.C.
§ 866(c)(1)(A).
On 12 December 2023, Appellant filed his notice of
appeal. Later that same day, on 12 December 2023,
this court docketed his case and ordered the
Government to “forward a copy of the record of trial to
the court forthwith,” as it had not been received yet.
The record of trial, with a verbatim transcript, was
provided to this court on 19 April 2024.
Subsequently, Appellant requested and received
ten enlargements of time. Appellant ultimately
60a
submitted his brief on 28 April 2025. On 28 May 2025,
the Government submitted its answer to Appellant’s
assignments of error. On 4 June 2025, Appellant filed
his reply brief.
2. Law
On 23 December 2022, Congress amended Articles
66 and 69, UCMJ, 10 U.S.C. §§ 866, 869. See The
National Defense Authorization Act for Fiscal Year
2023 (FY23 NDAA), Pub. L. No. 117–263, § 544, 136
Stat. 2395, 2582–84 (23 Dec. 2022). As amended,
Article 66(b)(1)(A), UCMJ, expanded CCA jurisdiction
to any judgment of a special or general court-martial,
irrespective of sentence, that included a finding of
guilty. 10 U.S.C. § 866(b)(1)(A) MCM (2024 ed.).
We review de novo whether an appellant is entitled
to relief for post-trial delay. United States v. Livak, 80
M.J. 631, 633 (A.F. Ct. Crim. App. 2020) (citing United
States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006)).
In Moreno, the United States Court of Appeals for
the Armed Forces (CAAF) identified thresholds for
facially unreasonable delay during three particular
segments of the post-trial and appellate process. 63
M.J. at 141–43 (citations omitted). Specifically, our
superior court established a presumption of facially
unreasonable delay where: (1) the convening
authority did not take action within 120 days of the
completion of trial, (2) the record was not docketed
with the CCA within 30 days of the convening
authority’s action, or (3) the CCA did not render a
decision within 18 months of docketing. Id. at 142.
In Livak, this court recognized that “the specific
requirement in Moreno which called for docketing to
occur within 30 days of action no longer helps us
determine an unreasonable delay under the new
61a
procedural rules.” 80 M.J. at 633. Accordingly, this
court established an aggregated sentence-todocketing 150-day threshold for facially unreasonable
delay in cases that were referred to trial on or after 1
January 2019. Id. (citation omitted).
However, in light of subsequent statutory changes,
this court recently found the 150-day threshold
established in Livak does not apply to direct appeals,
such as Appellant’s, that are submitted under the
amended Article 66(b)(1)(A), UCMJ, effective 23
December 2023. See United States v. Boren, No. ACM
40296 (f rev), 2025 CCA LEXIS 103, at *47 (A.F. Ct.
Crim. App. 19 Mar. 2025) (unpub. op.). This court
noted, “[t]hese statutory changes substantially
altered the sequence of post-trial events in such
[direct appeal] cases” as compared to the mandatory
review cases our superior court contemplated in
Moreno. Id. at 47–48. Therefore, although we
acknowledge appellants in such cases still enjoy
constitutional due process rights to timely post-trial
review, we decline to establish a new specific
timeframe for a facially unreasonable delay from
sentence-to-docketing in direct appeal cases.
Even without a specific timeframe, we can
determine if there is a case-specific facially
unreasonable delay. See United States v. Gray, 2025
CCA LEXIS 122, at *15–17 (A.F. Ct. Crim. App. 24
Mar. 2025) (unpub. op.) (recognizing it is possible an
appellant could demonstrate a case-specific facially
unreasonable delay outside of Livak and Moreno that
would trigger a Barker9 due process analysis), rev.
9 Barker v. Wingo, 407 U.S. 514 (1972).
62a
denied, 2025 CAAF LEXIS 498 (C.A.A.F. 24 Jun.
2025).
Where there is a facially unreasonable delay, we
examine the four factors set forth in Barker v. Wingo,
407 U.S. 514, 530 (1972): “(1) the length of the delay;
(2) the reasons for the delay; (3) the appellant’s
assertion of the right to timely review and appeal; and
(4) prejudice [to the appellant].” Moreno, 63 M.J. at
135 (citations omitted). In Barker, the Supreme Court
also identified three types of cognizable prejudice for
purposes of an appellant’s due process right to timely
post-trial review: (1) oppressive incarceration; (2)
“particularized anxiety and concern that is
distinguishable from the normal anxiety experienced
by prisoners awaiting an appellate decision;” and (3)
impairment of the appellant’s grounds for appeal or
ability to present a defense at a rehearing. See id. at
138–40 (citations omitted). “Of those, the most serious
is the last [type], because the inability of a defendant
adequately to prepare his case skews the fairness of
the entire system.” Barker, 407 U.S. at 532.
Additionally, where an appellant has not shown
prejudice from the delay, we cannot find a due process
violation unless the delay is so egregious as to
“adversely affect the public’s perception of the fairness
and integrity of the military justice system.” United
States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006).
Independent of any due process violation, this
court may provide appropriate relief where there is
“excessive delay in the processing of the court-martial
after the judgment was entered into the record.”
United States v. Valentin-Andino, 85 M.J. 361, 364
(C.A.A.F. 2025) (citing Article 66(d)(2), UCMJ, 10
U.S.C. § 866(d)(2)). If a CCA decides relief is
63a
warranted for excessive post-trial delay under Article
66(d)(2), UCMJ, “that relief must be ‘appropriate,’
meaning it must be suitable considering the facts and
circumstances surrounding that case.” Id. at 367.
“This does not require a [CCA] to provide relief that is
objectively meaningful, and it does not obligate a
[CCA] to explain its reasoning regarding the relief it
does provide.” Id.
3. Analysis
Appellant argues he was subject to excessive delay
in two instances. First, Appellant argues that the 81day delay between sentencing and the Government
providing notice to Appellant of his right to appeal
was too great. Second, Appellant argues that the delay
of 129 days between this court docketing the case and
our receipt of the record of trial with a verbatim
transcript was excessive.
We begin our analysis by restating that we decline
to establish a new specific timeframe for a
presumptive facially unreasonable delay to cover the
period from sentence-to-docketing in direct appeal
cases. See Boren, unpub. op. at *47 (explaining that
the new procedures applicable to direct appeals give
appellants significant control over what postconviction review process they elect to seek as part of
their right to appellate review). However, in regard to
Appellant’s complaints, we considered Appellant’s due
process rights to speedy appellate review without
presuming a facially unreasonable delay to determine
whether Appellant demonstrated a case-specific
facially unreasonable delay that would trigger a
Barker due process analysis. See Gray, unpub. op. at
*16 (finding no prejudice to appellant from delay, this
court determined it could not find a due process
64a
violation unless the delay was so egregious that it
adversely affected the public’s perception of the
fairness and integrity of the military justice system).
a. Post-Trial Delay
i) Delay in Notice to Appeal
We find that the 81-day delay between sentencing
and the Government’s notice to Appellant of his right
to appeal is not excessive under the circumstances.
The court reporter’s chronology in the record shows
that 52 days elapsed from sentencing to the court
reporter sending the summarized transcript and
documents to the legal office. The legal office
forwarded the record of trial to the numbered Air
Force legal office (18 AF/JA) within 23 days, and five
of those days included a mandatory evacuation due to
Hurricane Idalia. 18 AF/JA mailed out the Notice of
Right to Submit Direct Appeal to Appellant one day
after it received the record of trial. Given the various
steps involved and the evacuation, 81 days is not
excessive. See Gray, 2025 CCA LEXIS 122 at *12–13
(finding a 125-day delay between sentencing and
appellant being notified of his right to file a direct
appeal not to be excessive).
ii)
Transcript
Delay
in
Receiving
Verbatim
Next, turning to Appellant’s second instance of
delay, we do not find the 129 days between docketing
with this court and our receipt of a record of trial with
a verbatim transcript to be an unreasonable delay.
Appellant filed his notice of appeal on 12 December
2023, and this court docketed his case the same day.
In this court’s docketing order, the court ordered the
Government to “forward a copy of the record of trial to
the court forthwith.” A verbatim transcript had not
65a
been prepared because prior to Appellant’s filing of his
notice of appeal, the Government was not required to
prepare a verbatim transcript in this case according to
guidance in paragraph 11.1.1.1 of DAFMAN 51-203,
or Rule for Courts-Martial 1114.
This court received a record of trial on 19 April
2024, with a verbatim transcript. Acknowledging the
time it takes to create a verbatim transcript and
conduct the necessary routing and certifications,
under the circumstances, we do not find a facially
unreasonable delay, thus a Barker due process
analysis does not apply.
iii) Relief in Absence of Due Process
Violation
Recognizing our authority under Article 66(d)(2),
UCMJ, we have also considered whether relief for
excessive post-trial delay is appropriate even in the
absence of a due process violation as to Appellant’s
notice of his right to appeal and this court’s receipt of
a record of trial with a verbatim transcript. We have
carefully considered Appellant’s argument that he has
suffered harm by the delay as he was “unable to
exercise his right to appellate review” and we find
that, under the circumstances, he is not entitled to
relief.
b. Appellate Delay
Over 18 months have elapsed since Appellant’s
record of trial was originally docketed with this court.
Therefore, under Moreno there is a facially
unreasonable delay, although we note the 18-month
threshold has been exceeded by a little over two
months. Accordingly, we have considered the Barker
factors and find no due process violation. Appellant
has not specifically alleged cognizable prejudice from
66a
appellate delay, and we do not find any. The delay has
not resulted in oppressive incarceration. We do not
perceive any particularized anxiety or concern caused
by the appellate delay—indeed, Appellant sought an
additional 374 days of delay through ten
enlargements of time. Moreover, as with the predocketing post-trial delay, our review has not
occasioned any potential rehearing, nor do we perceive
any particular reason why any further appeal might
be impaired.
Absent prejudice, we similarly find the postdocketing delay involved in Appellant’s case has not
been so egregious as to adversely affect the public
perception of the military justice system. The majority
of the delay was the result of Appellant’s requests for
enlargements of time in which to file the assignments
of error. We find no egregious delay and no violation
of Appellant’s due process rights. See Toohey, 63 M.J.
at 362; nor do we find any relief warranted in the
absence of a due process violation. See 10 U.S.C.
§ 866(d)(2).
C. Sentence Reassessment
Having set aside the findings of guilty as to Charge
II and its Specification, alleging failure to obey a
lawful general regulation, we have considered
whether we can reliably reassess Appellant’s sentence
in light of the non-exclusive factors identified in
United States v. Winckelmann, 73 M.J. 11, 15–16
(C.A.A.F. 2013). We find that we can. In this case,
several of the factors weigh in favor of reassessment
over remand: the penalty landscape has not
dramatically changed; the remaining offenses capture
the gravamen of the criminal misconduct; and the
67a
remaining offenses are of a type the judges on this
court are familiar with. See id.
By dismissing Charge II and its Specification,
Appellant’s criminal convictions were reduced by half;
however, he was convicted of wrongful use of cocaine,
and a reduction in one grade is in no way excessive for
that offense. Therefore, a sentence no greater than the
court-martial would have imposed for the remaining
offense is reducing the three days of confinement to no
confinement and setting aside the reprimand.
III. CONCLUSION
The findings of guilty as to Charge II and its
Specification are SET ASIDE. Charge II and its
Specification are DISMISSED WITH PREJUDICE.
We affirm only so much of the sentence that provides
for reduction to the grade of E-6. The remaining
findings, as entered, are correct in law and fact.
Article 66(d), UCMJ, 10 U.S.C. § 866(d) (2024 MCM).
In addition, the sentence, as reassessed, is correct in
law and fact, and no error materially prejudicial to the
substantial rights of Appellant occurred. Articles
59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d).
Accordingly, the findings of guilty as to Charge I and
its Specification, and the sentence, as reassessed, are
AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
68a
United States Court of Appeals
for the Armed Forces
Washington, D.C.
United States,
Appellee
USCA Dkt. No. 26-0035/AF
Crim.App. No. 40588
v.
ORDER DENYING PETITION
Dominic C.
Haymond, II,
Appellant
On consideration of the petition for grant of review
of the decision of the United States Air Force Court of
Criminal Appeals, it is by the Court, this 6th day of
January, 2026,
ORDERED:
That the petition is hereby denied.
For the Court,
/s/
cc:
Malcolm H. Squires, Jr.
Clerk of the Court
The Judge Advocate General of the Air Force
Appellate Defense Counsel (Johnson)
Appellate Government Counsel (Payne)
69a
UNITED STATES AIR FORCE
COURT OF CRIMINAL APPEALS
________________________
No. ACM 40588
________________________
UNITED STATES
Appellee
v.
Dominic C. HAYMOND II
Airman (E-2), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial
Judiciary
Decided 23 September 2025
________________________
Military Judge: Joshua D. Rosen.
Sentence: Sentence adjudged 27 October 2023 by GCM
convened at Robbins Air Force Base, Georgia.
Sentence entered by military judge on 30 November
2023: Dishonorable discharge, confinement for 1 year
and 8 months, total forfeiture of all pay and
allowances for 20 months,1 reduction to E-1, and a
reprimand.
At trial, the military judge announced a sentence of “total
forfeiture of all pay and allowances for a period of 20 months.”
However, the entry of judgment (EoJ) reflects the sentence as
“Forfeitures of Pay and/or Allowances: Total, per month for 20
1
70a
For Appellant: Major Frederick J. Johnson, USAF.
For Appellee: Colonel G. Matt Osborn, USAF; Colonel
Matthew D. Talcott, USAF; Lieutenant Colonel J.
Pete Ferrell, USAF; Lieutenant Colonel Jenny A.
Liabenow, USAF; Major Vanessa Bairos, USAF;
Major Tyler L. Washburn, USAF; Major Jocelyn Q.
Wright, USAF; Mary Ellen Payne, Esquire.
Before GRUEN, PERCLE, and MORGAN, Appellate
Military Judges.
________________________
This is an unpublished opinion and, as such,
does not serve as precedent under AFCCA Rule
of Practice and Procedure 30.4.
________________________
PER CURIAM:
A panel of officer and enlisted members sitting as
a general court-martial convicted Appellant of one
specification of sexual assault under the theory
Appellant committed a sexual act upon CB when
Appellant knew or reasonably should have known CB
was asleep, in violation of Article 120, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. § 920.2,3 The
months.” Appellant did not allege error with this discrepancy,
and even if we were to assume error, we find no prejudice.
2 Unless otherwise noted, all references in this opinion to the
UCMJ and Rules for Courts-Martial (R.C.M.) are to the Manual
for Courts-Martial, United States (2019 ed.).
3 Of the sole Charge, the members acquitted Appellant of two
specifications of sexual assault in violation of Article 120, UCMJ
(Specifications 1 and 3). Also, the military judge granted the
unopposed motion pursuant to R.C.M. 917 for a finding of not
guilty for Specification 2 of the Charge which alleged sexual
71a
military judge sentenced Appellant to a dishonorable
discharge, confinement for one year and eight months,
total forfeitures of all pay and allowances for a period
of 20 months, reduction to the grade of E-1, and a
reprimand. Appellant requested the convening
authority defer his reduction in grade until the date of
the entry of judgment, and the convening authority
denied this request. The convening authority took no
action on the findings or the sentence.
Appellant raises three issues on appeal: (1)
whether Appellant’s constitutional rights were
violated when he was convicted of an offense without
a unanimous verdict; (2) whether the Government can
prove 18 U.S.C. § 922 is constitutional as applied to
Appellant when he was convicted of offenses that do
not fall within the nation’s historical tradition of
firearm regulation; and (3) whether Appellant’s
conviction is factually sufficient “because the evidence
upon which they are based is not credible.”4 We
consider two additional issues: (4) whether Appellant
is entitled to relief for a presumptively unreasonable
post-trial delay of over 18 months between docketing
and our decision in this case, and (5) whether the
entry of judgment needs to be modified.
As to issue (1), Appellant is not entitled to relief.
See United States v. Anderson, 83 M.J. 291 (C.A.A.F.
2023) (holding that a military accused does not have a
right to a unanimous verdict under the Sixth
assault in violation of Article 120, UCMJ. All the specifications
of sexual assault involved the same victim, his then-fiancée, CB.
4 Issue 3 was personally raised by Appellant pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
72a
Amendment,5 the Fifth Amendment’s due process
clause, and the Fifth Amendment’s component of
equal protection6), cert. denied, 144 S. Ct. 1003 (2024).
As to issue (2), we have carefully considered
Appellant’s allegation of error and conclude it
warrants neither discussion nor relief. See United
States v. Guinn, 81 M.J. 195, 204 (C.A.A.F. 2021)
(citing United States v. Matias, 25 M.J. 356, 361
(C.M.A. 1987)); see also United States v. Johnson, __
M.J. __, No. 24-0004, 2025 CAAF LEXIS 499, at *13–
14 (C.A.A.F. 24 Jun. 2025) (holding Courts of Criminal
Appeals lack “authority to modify the [18 U.S.C.]
§ 922 indication” in the entry of judgment).
As to issue (3), Appellant claims his conviction is
factually insufficient “because the evidence upon
which they are based is not credible.” Evidence
adduced at trial included that on one evening between
1 February 2022 and 15 March 2022, Appellant was
on a date with his then-fiancée, CB.7 At the end of the
evening CB was feeling unwell so she went to sleep in
a shared hotel room with Appellant. After a time when
CB slept and Appellant did not, Appellant decided he
wanted to penetrate CB’s vagina with his penis while
CB was asleep, when Appellant knew or reasonably
should have known she was asleep. During an Office
of Special Investigations (OSI) interview, Appellant
initially denied any sexual contact with CB while she
was asleep, but later Appellant admitted he “got
horny again I guess” and “and I know [CB] wasn’t at
all aware of anything that was going on” and he “did
5 U.S. CONST. amend. VI.
6 U.S. CONST. amend. V.
7 At the time of the allegations, CB was an active duty Airman.
73a
penetrate [CB]” for about “30 seconds” while she was
“asleep” or “confused” about what was happening. CB
testified she was feverish and “[woke] up with
[Appellant’s] penis inside [her] vagina.” After they
were no longer dating, CB called Appellant and told
him she could “not stop thinking about what happened
to [her] when [she] was sleeping.” Appellant
apologized to CB and “begged her not to tell anyone.”
Assuming without deciding that Appellant’s claim of
deficiency is sufficient for our review, the finding of
guilty was not against the weight of the evidence, and
therefore, is factually sufficient. See United States v.
Harvey, 85 M.J. 127, 130–31 (C.A.A.F. 2024); Article
66(d), UCMJ, 10 U.S.C. § 866(d) (Manual for CourtsMartial, United States (2024 ed.) (2024 MCM).
Although not raised by Appellant, we note there
was a presumptively unreasonable post-trial delay of
over 18 months between docketing and our decision in
this case. See United States v. Moreno, 63 M.J. 129,
142 (C.A.A.F. 2006) (establishing that a delay greater
than 18 months in the review of a case by a Court of
Criminal Appeals is presumptively unreasonable).
Appellant submitted his initial assignments of error
on 22 May 2025 (over 14 months after docketing).
Although the time from docketing to issuing this
opinion exceeded 18 months, Appellant made no
specific assertion of the right to timely appellate
review, and we find no particularized prejudice. See
id. at 135–36 (reviewing claims of post-trial and
appellate delay using the four-factor analysis found in
Barker v. Wingo, 407 U.S. 514, 530 (1972)).
Furthermore, the delay is not so egregious as to
adversely affect the public’s perception of the fairness
and integrity of the military justice system. See
United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F.
74a
2006). Having considered the totality of the
circumstances and the entire record, accordingly,
there is no due process violation. See United States v.
Arriaga, 70 M.J. 51, 56 (C.A.A.F. 2011) (citing Moreno,
63 M.J. at 135). We also decline to exercise our power
under Article 66(d)(2), UCMJ, 10 U.S.C. § 866(d)(2)
(2024 MCM), to grant Appellant relief for the posttrial delay in this case. See United States v. ValentinAndino, 85 M.J. 361, 364–67 (C.A.A.F. 2025).
Also not raised by Appellant, we address the
language in the findings portion of the entry of
judgment (EoJ).8 At the close of the Government’s
case-in-chief, Appellant made an unopposed motion
pursuant to Rule for Courts-Martial (R.C.M.) 917 for
a finding of not guilty for Specification 2 of the Charge.
The military judge granted this motion. However, the
EoJ only reflects a finding of “NG” to Specification 2,
instead of a finding of “NG pursuant to R.C.M. 917.”
Accordingly, we find this portion of the EoJ as drafted
lacks the particularity necessary to distinguish the
members’ finding with that of the military judge.
Therefore, we hereby modify the EoJ in our decretal
paragraph below by adding the emphasized language
to the finding of Specification 2 of the Charge. See
R.C.M. 1111(c)(2) (2024 MCM); Article 66(d)(2),
UCMJ (2024 MCM).
We modify the entry of judgment by adding the
words “pursuant to R.C.M. 917” after “NG” under “F”
for Finding for Specification 2 of the Charge. The
findings as entered and modified are correct in law
and fact. Article 66(d)(1), UCMJ (2024 MCM). In
addition, the sentence is correct in law and fact, and
We find this error did not materially prejudice Appellant’s
substantial rights.
8
75a
no error materially prejudicial to the substantial
rights of Appellant occurred. Articles 59(a) and 66(d),
UCMJ, 10 U.S.C. § 859(a), 866(d). Accordingly, the
findings and the sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
76a
United States Court of Appeals
for the Armed Forces
Washington, D.C.
United States,
Appellee
USCA Dkt. No. 26-0044/AF
Crim.App. No. 40608
v.
ORDER DENYING PETITION
Dyllin V.E.
Roberts,
Appellant
On consideration of the petition for grant of review
of the decision of the United States Air Force Court of
Criminal Appeals, it is by the Court, this 23rd day of
January, 2026,
ORDERED:
That the petition is hereby denied.
For the Court,
/s/
cc:
Malcolm H. Squires, Jr.
Clerk of the Court
The Judge Advocate General of the Space Force
Appellate Defense Counsel (Sullivan)
Appellate Government Counsel (Payne)
77a
UNITED STATES AIR FORCE
COURT OF CRIMINAL APPEALS
________________________
No. ACM 40608
________________________
UNITED STATES
Appellee
v.
Dyllin V.E. ROBERTS
Senior Airman (E-4), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial
Judiciary
Decided 30 September 2025
________________________
Military Judge: Matthew P. Stoffel (pretrial), Mark F.
Rosenow (arraignment and motions), Bradley J.
Palmer (trial).
Sentence: Sentence adjudged 15 October 2023 by GCM
convened at Joint Base Andrews, Maryland, Kadena
Air Base, Japan, and Barksdale Air Force Base,
Louisiana. Sentence entered by military judge on 21
December 2023: Dishonorable discharge, confinement
for 14 years, reduction to E-1, and a reprimand.
For Appellant: Major Samantha P. Golseth, USAF;
Captain Samantha M. Castanien, USAF; Dwight H.
Sullivan, Esquire.
78a
For Appellee: Lieutenant Colonel Thomas J. Alford,
USAF; Lieutenant Colonel J. Pete Ferrell, USAF;
Lieutenant Colonel Jenny A. Liabenow, USAF; Major
Vanessa Bairos, USAF; Captain Heather R. Bezold,
USAF; Mary Ellen Payne, Esquire.
Before DOUGLAS, MASON, and KUBLER, Appellate
Military Judges.
Judge MASON delivered the opinion of the court, in
which Senior Judge DOUGLAS and Judge KUBLER
joined.
________________________
This is an unpublished opinion and, as such,
does not serve as precedent under AFCCA Rule
of Practice and Procedure 30.4.
________________________
MASON, Judge:
A general court-martial composed of officer and
enlisted members convicted Appellant, contrary to his
pleas, of four specifications of sexual abuse of a child
and two specifications of sexual assault of a child, in
violation of Article 120b, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 920b, as well as one
specification of attempting to make an indecent
recording, in violation of Article 80, UCMJ, 10 U.S.C.
§ 880.1 Appellant elected sentencing by military judge.
The military judge sentenced Appellant to a
dishonorable discharge, confinement for 14 years,
reduction to the grade of E-1, and a reprimand. Posttrial, Appellant requested a deferment of the
reduction in grade until the entry of judgment (EoJ)
1 Unless otherwise noted, all references to the UCMJ are to the
Manual for Courts-Martial, United States (2019 ed.).
79a
and a waiver of the automatic forfeitures for a period
of six months. The convening authority took no action
on the findings or sentence but granted both
deferment requests.
Appellant raises 13 issues on appeal, which we
have reworded: (1) whether the Government’s failure
to docket the case within 150 days of the EoJ warrants
relief; (2) whether Appellant’s sentence for sexual
assault of a child is inappropriately severe; (3)
whether the EoJ erroneously cites the Article of which
Appellant was found guilty and thus, requires
correction; (4) whether Appellant was entitled to a
unanimous verdict; (5) whether the military judge
erred in admitting HC’s prior statements to
investigators because a third party was present in the
interview room; (6) whether the military judge erred
in admitting a note from Appellant to HC and
permitting trial counsel to argue that it constituted
proof of consciousness of guilt; (7) whether the
military judge erred by admitting evidence derived
from DNA swabs from Appellant because of a
“compromised” chain-of-custody; (8) whether the
military judge erred by admitting unreliable
testimony concerning a witness’s experiment with
attempting to take photographs of a rainstorm and
extrapolation of his findings to a photograph of a
bathroom shower; (9) whether the military judge
erred by declining to ask a member’s question
concerning the definition of sexual gratification; (10)
whether Appellant’s convictions are legally and
factually insufficient because HC’s inconsistencies
render her testimony unreliable; (11) whether
Appellant’s convictions are legally and factually
insufficient because they were influenced by
“implausible” DNA evidence; (12) whether the
80a
military judge erred by declining to ask a member’s
question concerning HC’s return to Appellant’s
apartment after reporting the alleged offenses; and
(13) whether Appellant’s sentence that included
confinement for 14 years is inappropriately severe
when compared to sentences from other comparable,
or even more serious, offenses.2
In our initial review, we noted that the military
judge omitted nearly all of the section of the standard
instructions from the Military Judges’ Benchbook
entitled, “Closing Substantive Instructions on
Findings,” including the required instruction that the
members may only consider matters properly before
the court-martial. Dept. of the Army Pamphlet 27-9 at
67 (29 Feb. 2020). As a result, we specified the
following issue and ordered briefing from the parties:
whether the military judge’s failure to include the
required instruction pursuant to Rule for CourtsMartial (R.C.M.) 920(e)(4) that the members may only
consider matters properly before the court-martial
resulted in prejudicial error. Commendably,
Appellant’s counsel correctly concedes that the issue
was waived and that we do not have authority in this
particular case to pierce that waiver. United States v.
Davis, 79 M.J. 329, 331 (C.A.A.F. 2020); United States
v. George, No. ACM 40397, 2024 CCA LEXIS 224, at
*2–3 (A.F. Ct. Crim. App. 7 Jun. 2024) (unpub. op.)
(noting that this court no longer has the ability to
pierce waiver with regard to findings “to address what
would otherwise be prejudicial error”). Thus,
Appellant is not entitled to relief.
Appellant raises issues (5) through (13) in accordance with
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
2
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With regards to issue (3), Appellant asserts that
the EoJ erroneously reflects that Appellant was found
guilty of the completed offense of making an indecent
recording in violation of Article 120c, UCMJ, and that
it should reflect that he was found guilty of the offense
of attempting to make an indecent recording in
violation of Article 80, UCMJ. Appellee concurs and
urges us to exercise our power pursuant to R.C.M
1111(c)(2) to correct the error. We agree that we can
and should correct the error. We take corrective action
in our decretal paragraph.
We have carefully considered issue (4) and find it
does not require discussion or relief. See United States
v. Anderson, 83 M.J. 291, 302 (C.A.A.F. 2023). We
have also carefully considered issues (5) through (12)
and find that they do not warrant discussion or relief.
See United States v. Matias, 25 M.J. 356, 361 (C.M.A.
1987). We address issue (13) in conjunction with issue
(2) below. Regarding the remaining issues, we find no
error that materially prejudiced Appellant’s
substantial rights, and we affirm the modified
findings and sentence.
I. BACKGROUND
In December 2020, Appellant was stationed at
Kadena Air Base, Japan. He had a 12-year-old
daughter, HC. HC had generally grown up without
her mother and was taken care of mostly by her greatgrandparents as she was born when Appellant was 16
years old. But in December 2020, HC moved to Japan
to live with her father, Appellant.
Within a short time of HC moving in with him,
Appellant began sexually abusing HC. This sexual
abuse began with touching of her breasts and
progressed into touching of HC’s vagina. This
82a
molestation continued from February 2021 to July
2021.
Appellant
engaged
in
this
conduct
approximately three to four times per week lasting
from 30 to 45 minutes per incident.
On 25 July 2021, while abusing HC, Appellant
rubbed the outside of her vagina and put his fingers
inside her labia. Distraught, HC retreated to her
room, curled up in a ball, and cried. The next day, HC
shared with a friend what Appellant was doing to her.
That friend told her parents. The parents came to pick
up HC and reported the abuse to the authorities. An
investigation ensued and the case was referred to trial
by court-martial.
II. DISCUSSION
A. Sentence Comparison and Appropriateness
1. Law
We review sentence appropriateness de novo.
United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006).
“We assess sentence appropriateness by considering
the particular appellant, the nature and seriousness
of the offenses, the appellant’s record of service, and
all matters contained in the record . . . .” United States
v. Fields, 74 M.J. 619, 625 (A.F. Ct. Crim. App. 2015)
(citations omitted). We must also be sensitive to
considerations of uniformity and even-handedness.
United States v. Sothen, 54 M.J. 294, 296 (C.A.A.F.
2001). While we have significant discretion in
determining whether a particular sentence is
appropriate, we are not authorized to engage in
exercises of clemency. United States v. Nerad, 69 M.J.
138, 148 (C.A.A.F. 2010).
When conducting our review, we not only consider
the appropriateness of the entire sentence, but also
83a
“must consider the appropriateness of each segment
of a segmented sentence.” United States v. Flores, 84
M.J 277, 281 (C.A.A.F. 2024).
Courts of Criminal Appeals (CCAs) are “not
required . . . to engage in sentence comparison with
specific [other] cases ‘except in those rare instances in
which sentence appropriateness can be fairly
determined only by reference to disparate sentences
adjudged in closely related cases.’” United States v.
Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999) (quoting
United States v. Ballard, 20 M.J. 282, 283 (C.M.A.
1985)) (additional citation omitted). Cases are “closely
related” when, for example, they involve “co[-]actors
involved in a common crime, servicemembers involved
in a common or parallel scheme, or some other direct
nexus between the servicemembers whose sentences
are sought to be compared.” Id. “[A]n appellant bears
the burden of demonstrating that any cited cases are
‘closely related’ to his or her case and that the
sentences are highly disparate.” Id.
A CCA is not required to compare an appellant’s
case to non-closely related cases. United States v.
Wacha, 55 M.J. 266, 267 (C.A.A.F. 2001) (citations
omitted). “The appropriateness of a sentence
generally should be determined without reference or
comparison to sentences in other cases.” United States
v. LeBlanc, 74 M.J. 650, 659 (A.F. Ct. Crim. App.
2015) (en banc) (citing Ballard, 20 M.J. at 283).
2. Analysis
Appellant, through counsel, challenges the
appropriateness of his sentence and, personally, urges
us to compare his sentence to other cases. In support
of his sentence comparison request, he cites to four
other cases involving, according to him, “unrelated”
84a
cases where those appellants were convicted of,
according to him, “comparable or more aggravated
offenses” but were sentenced to less confinement.
While we acknowledge that we could compare
Appellant’s sentence to other cases, we decline to do
so here. Appellant has not shown that the cited cases
are
closely
related.
Further,
a
sentence
appropriateness determination does not require
reference to the alleged disparate sentences in those
cases.
The question before us is straightforward. Is
Appellant’s sentence, particularly the confinement
term of 14 years, inappropriately severe considering
all the matters of record in this case? We conclude the
sentence is appropriate.
Appellant took in his daughter, who had not been
previously living with him, and moved with her to
another country. Shortly after arriving and before she
could establish many significant relationships for
support, he began sexually abusing her. His criminal
conduct repeated for months with the duration of each
session becoming increasingly oppressive. This
conduct continued until HC finally reported the
molestation to her friend. The record makes clear that
the reason this conduct stopped was because of the
friend’s parents’ intervention.
Appellant’s sexual abuse left long-lasting impacts
on HC, physical and psychological. She suffered from
panic attacks, anxiety, facial and finger twitching,
and bed wetting. The depths of the psychological
impact were manifested by HC’s depression that
culminated in her carving the word “worthless” into
her own skin.
85a
In the presentencing proceedings, Dr. GH, a
forensic psychologist, testified that studies indicate
that similarly situated victims have an increased risk
of displaying behavior disorders and dysfunction,
higher incident rates of juvenile delinquency,
academic difficulties, and substance abuse.
During these proceedings, Appellant presented
testimony from Dr. JM, a forensic psychologist, who
opined Appellant’s rehabilitative potential was high
and likelihood of recidivism was low. Additionally,
Appellant presented a photographic biography and an
unsworn statement.
We have assessed the appropriateness of
Appellant’s sentence, considered this particular
appellant, the nature and seriousness of the offenses,
his record of service, and all matters contained in the
record. As a whole, Appellant’s sentence is not
inappropriately severe. We have also evaluated each
segment of Appellant’s sentence and find that none of
the segments are inappropriately severe.
B. Post-Trial Delay
1. Additional Background
Appellant was sentenced on 15 October 2023
following a seven-day, fully litigated general courtmartial. The transcription for the case consisted of
over 1,600 pages and was completed on 14 February
2024. On 24 April 2024 the 11volume record of trial
was sent to the Air Force Military Justice Policy
Division. On 7 May 2024, the case was docketed with
this court, 205 days after Appellant was sentenced.
In response to Appellant’s allegation of error for
post-trial delay, Appellee moved to attach a
chronology from the case paralegal providing details
86a
as to the processing of the record of trial. We granted
that motion to attach and consider it here. See United
States v. Jessie, 79 M.J. 437, 445 (C.A.A.F. 2020).
2. Law
“Due process entitles convicted service members to
a timely review and appeal of court-martial
convictions.” United States v. Moreno, 63 M.J. 129,
132 (C.A.A.F. 2006) (citation omitted). Whether an
appellant has been deprived of his due process right
to speedy post-trial and appellate review, and whether
constitutional error is harmless beyond a reasonable
doubt, are questions of law we review de novo. United
States v. Prasad, 80 M.J. 23, 29 (C.A.A.F. 2020)
(citation omitted); United States v. Arriaga, 70 M.J.
51, 55 (C.A.A.F. 2011) (citing Moreno, 63 M.J. at 135).
A presumption of unreasonable delay arises when
the case is docketed more than 150 days from an
appellant being sentenced. United States v. Livak, 80
M.J. 631, 633 (A.F. Ct. Crim. App. 2020) (citation
omitted). A presumptively unreasonable delay
triggers an analysis of the four factors set forth in
Barker v. Wingo, 407 U.S. 514, 530 (1972): “(1) the
length of the delay; (2) the reasons for the delay; (3)
the appellant’s assertion of the right to timely review
and appeal; and (4) prejudice.” Moreno, 63 M.J. at 135
(additional citations omitted).
“We analyze each factor and make a determination
as to whether that factor favors the Government or
the appellant.” Id. at 136 (citation omitted). Then, we
balance our analysis of the factors to determine
whether a due process violation occurred. Id. (citing
Barker, 407 U.S. at 533) (“Courts must still engage in
a difficult and sensitive balancing process.”). “No
single factor is required for finding a due process
87a
violation and the absence of a given factor will not
prevent such a finding.” Id. (citation omitted).
However, where an appellant has not shown prejudice
from the delay, there is no due process violation unless
the delay is so egregious as to “adversely affect the
public’s perception of the fairness and integrity of the
military justice system.” United States v. Toohey, 63
M.J. 353, 362 (C.A.A.F. 2006).
A CCA may provide appropriate relief for excessive
post-trial delay even in the absence of a due process
violation. Article 66(d)(2), UCMJ, 10 U.S.C. §
866(d)(2). Appropriate relief is not necessarily
synonymous with meaningful relief. United States v.
Valentin-Andino, 85 M.J. 361, 366 (C.A.A.F. 2025).
Additionally, “although it is within a [CCA’s]
discretion to place its reasoning about Article
66(d)(2)[, UCMJ,] relief on the record, it is not
required to do so.” Id. at 367 (citing United States v.
Winckelmann, 73 M.J. 11, 16 (C.A.A.F. 2013)).
3. Analysis
As Appellant and Appellee agree, the record of trial
for this case was not docketed with the court within
150 days from sentencing and therefore, the 205 days
it took in this case presents a facially unreasonable
delay. We analyze the Barker factors to determine
whether a due process violation occurred.
The particularly long transcription of the
proceedings in this case took 121 days. This
timeframe, in this particular case, is not surprising or
unreasonable. The Government took an additional 84
days from completion of the transcript to when this
court docketed the case. The chronology provided by
the case paralegal gives insight into what was
happening with the processing but provides little
88a
justification for the delay in this time period. For
example, the record spent weeks “with leadership for
review.” Moreover, there appears to have been a
scanning issue regarding some of the exhibits.
Notably, these issues were encountered after the
transcription was completed. In other words, tasks
that easily could have been completed while the
transcription was being prepared were left for
completion until after the transcription was done.
This is not a “best practice” that often results in
unnecessary delays in post-trial processing. However,
it is not our job to prescribe best practices. Rather, we
apply the law and provide relief where warranted.
Here, the length of delay is presumptively
unreasonable, but not particularly egregious in the
context of the length and complexity of this case. The
reasons for the delay weigh in favor of Appellant, but
only slightly. The record does not reflect and
Appellant does not contend that he demanded speedy
appellate review. Nor does Appellant assert that he
was prejudiced in a particular way. In his brief, he
states that he “does not allege that the delay thus far
has violated his constitutional due process right to
timely appeal.” We agree. That he did not demand
speedy review or show prejudice weigh in favor of the
Government. Evaluating all of the factors, we do not
find a due process violation.
Appellant urges us to utilize our statutory
authority to grant relief for the post-trial delay. We
also conclude there is no basis for relief under Article
66(d)(2), UCMJ, in the absence of a due process
violation. Considering all the facts and circumstances
of Appellant’s case, we decline to exercise our Article
66(d), UCMJ, 10 U.S.C. § 866(d), authority to grant
relief.
89a
III. CONCLUSION
The entry of judgment is modified by excepting
“Art 120c” from the “Arraigned Offense(s)” for Charge
II and substituting therefore “Art 120c (amended after
arraignment to delete ‘120c’ and replace it with ‘80’).”
The findings are correct in law. Manual for CourtsMartial, United States (2024 ed.). In addition, the
sentence is correct in law and fact, and no error
materially prejudicial to the substantial rights of
Appellant occurred. Articles 59(a) and 66(d), UCMJ,
10 U.S.C. §§ 859(a), 866(d). Accordingly, the findings
and the sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
90a
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
________________________
UNITED STATES
Appellee
v.
John P. MATTI, Airman First Class
United States Air Force, Appellant
No. 25-0148
Crim. App. No. 22072
Argued November 18, 2025—Decided February 17,
2026
Military Judge: Elijah F. Brown
For Appellant: Major Nicole J. Herbers (argued); Megan P. Marinos, Esq.
For Appellee: Major Vanessa Bairos (argued); Colonel
Matthew D. Talcott and Mary Ellen Payne, Esq. (on
brief); Lieutenant Colonel Catherine K. M. Wray.
Judge MAGGS delivered the opinion of the Court, in
which Chief Judge OHLSON, Judge SPARKS, Judge
HARDY, and Judge JOHNSON joined.
________________________
Judge MAGGS delivered the opinion of the Court.
A special court-martial found Appellant guilty,
contrary to his pleas, of two specifications of assault
consummated by a battery against his wife in
91a
violation of Article 128(a)(3), Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 928(a)(3) (2018).
On appeal to the United States Air Force Court of
Criminal Appeals (AFCCA), Appellant asserted that
trial counsel made numerous improper statements
during his argument on findings and rebuttal. United
States v. Matti, No. ACM 22072, 2025 CCA LEXIS 72,
at *18, 2025 WL 687025, at *6 (A.F. Ct. Crim. App.
Feb. 28, 2025) (unpublished). The AFCCA reviewed
this issue for plain error because Appellant had not
objected to trial counsel’s arguments at trial. Id., 2025
WL 687025, at *6. Finding no plain error with respect
to trial counsel’s arguments, and no relief warranted
on the basis of Appellant’s other assertions of error,
the AFCCA affirmed the findings and sentence. Id. at
*54, 2025 WL 687025, at *18. One judge dissented,
concluding that trial counsel had engaged in
misconduct amounting to plain error. Id., 2025 WL
687025, at *18 (Gruen, J., dissenting). The AFCCA did
not address its jurisdiction in its opinion, but a
footnote to the case heading indicates that Appellant
was appealing under Article 66(b)(1)(A), UCMJ, 10
U.S.C. § 866(b)(1)(A) (2024). Id. at n.1, 2025 WL
687025, at n.1.
This Court specified one issue and granted one
issue for review. The specified issue is “[w]hether the
[AFCCA] lacked jurisdiction to review Appellant’s
case.” The granted issue is “[w]hether trial counsel
committed
prosecutorial
misconduct
through
improper bolstering, improper vouching, improper use
of facts not in evidence, and shifting the burden to
defense in findings argument.”
We hold that the AFCCA properly exercised
jurisdiction based on this Court’s recent decision in
92a
United States v. Folts, 86 M.J. 84 (C.A.A.F. 2025). We
further hold that even though trial counsel made
numerous improper comments in his argument on
findings and rebuttal, these errors were harmless. We
therefore affirm the decision of the AFCCA.
Despite finding no prejudicial error in this case, we
are troubled by the recurring instances of improper
argument at courts-martial. An Appendix to this
opinion provides a non-exhaustive list of commonly
violated restrictions on arguments. The Court
recommends that military judges and counsel study
this Appendix carefully. The Court further encourages
military judges to ask counsel whether they have read
and understood the Appendix before they proceed to
argument.
I. Background
The
convening
authority
referred
four
specifications of assault consummated by a battery to
the special court-martial. The court-martial found
Appellant guilty of Specifications 2 and 3, and not
guilty of Specifications 1 and 4. The military judge
sentenced Appellant to a reprimand, reduction to the
grade of E-1, forfeiture of $1,222 pay per month for
two months, and seventy-five days of confinement for
Specification 2 and fourteen days confinement for
Specification 3 of the charge. The military judge
ordered that the sentences of confinement run
concurrently.
A. The Specifications and the Evidence
At the time of the alleged misconduct, C.C. was
Appellant’s wife. Specification 2 alleged that
Appellant, “on or about 21 May 2021, unlawfully
pressed his knee on [C.C.’s] back, the spouse of the
accused.” In support of this allegation, C.C. testified
93a
that the incident occurred after she questioned
Appellant about a picture of a woman on Appellant’s
phone. She testified that Appellant grabbed her arms
and caused her to fall off a bar stool. She further
testified that she hit her knee and chin on a hardwood
floor. And she testified that while she was on the
ground:
He put his knee onto my back, in
between my shoulder blades, and I was
screaming “let go of me,” and he said
“no.” I said “you’re hurting me,” and he
said “I don’t care.” I said “you’re hurting
me. You’re hurting me. You’re hurting
me,” and I tried to kick my left leg out
from under me so I could kind of roll out.
At this point I was on my stomach and I
said “let go of me, you’re hurting me,”
and he said “if you wouldn’t have
resisted, this wouldn’t have happened.”
After the incident, C.C. took pictures of bruises on her
legs and chin, which were admitted into evidence.
C.C.’s friend and coworker, C.S., testified that she
worked with C.C. between April and June 2021, and
that C.C. “came into work with a bruise on her chin
once.” C.S. also testified that C.C. visited her house on
May 21, 2021, and told her that Appellant had
physically abused her. On cross-examination, C.S.
testified that C.C. was upset with her husband
because he was looking at images of other women.
Specification 3 alleged that Appellant, “between on
or about 1 January 2021 and on or about 31 January
2021, unlawfully bit[ C.C.]’s arm, the spouse of the
accused, with his mouth.” C.C. testified that
Appellant bit her forearm after she questioned him
94a
about a comment that he made regarding a woman
they saw on television. She further testified that the
bite was not playful, that it was “pretty painful,” that
it made her cry, and that it left a bruise lasting for one
to two weeks. C.C.’s friend and coworker, S.M.,
testified that she noticed that C.C. “came [into work]
with a few bruises” in January 2021.
Specifications 1 and 4, of which Appellant was
found not guilty, alleged that Appellant unlawfully
placed his forearm on his wife’s neck and that he
unlawfully pulled his wife’s hair. These specifications
were supported by C.C.’s testimony. They were not
supported by photographs or the testimony of other
witnesses.
B. Arguments on Findings
As is typical, after the close of evidence, trial
counsel made the opening argument on findings, trial
defense counsel made a reply, and trial counsel made
a rebuttal. In his reply, trial defense counsel concisely
summarized the defense theory of the case as follows:
Members[,] this case is about a
relationship that unraveled leading to
unfounded allegations. That’s what we’re
here for today. We’re not here because
physical abuse occurred. We’re here
because Ms. [C.C.] believes that
[Appellant] dishonored their marriage
because he refused to stop looking at
adult images. We’re here because that
soured their relationship and when it hit
a tipping point, she made a series of
unsupported reports that didn’t happen.
That’s why we’re here today.
95a
Trial defense counsel argued that C.C. had a motive of
“payback” because of her feeling of betrayal. He
further argued that C.S. and S.M., the two
corroborating witnesses who testified that they saw
C.C.’s bruises, were biased because they were C.C.’s
friends.
Trial counsel anticipated this defense theory in his
opening argument and also responded to it in his
rebuttal. In so doing, trial counsel made numerous
statements that are the subject of this appeal. For
example, as described more fully below, trial counsel
asserted that C.C. was “telling the truth” and was “a
credible witness.” Trial counsel also asserted that trial
defense counsel could rely on nothing but “conspiracy
theories” to impeach the testimony of C.S. and S.M.
Similar statements are quoted in the discussion
below.
Trial defense counsel made no objection to trial
counsel’s argument on findings or rebuttal. The
military judge did not intervene in the argument or
undertake any tailored curative measures. The
military judge, however, did provide standard
instructions informing the members that “[y]ou have
the duty to determine the believability of the
witnesses” and that “arguments of counsel are not
evidence.”
C. Review of the Findings and Sentence
The military judge sentenced Appellant on June
23, 2022. The convening authority took no action on
the findings and sentence. The military judge entered
judgment on July 28, 2022. Under the version of
Article 66, UCMJ, in force at that time, Appellant had
no right to appeal directly to the AFCCA because he
had not received a punitive discharge and had not
96a
received a sentence of confinement for more than six
months. Article 66(b)(1)(A), (3), 10 U.S.C. §
866(b)(1)(A), (3) (2018). An attorney in the Office of
the Judge Advocate General of the Air Force therefore
reviewed the court-martial pursuant to Article 65(d),
UCMJ, 10 U.S.C. § 865(d) (2018), and concluded that
there was no error.
On December 23, 2022, Congress enacted the
James M. Inhofe National Defense Authorization Act
for Fiscal Year 2023, Pub. L. No. 117-263, § 544, 136
Stat. 2395, 2582 (2022). This law amended Article
66(b)(1)(A), UCMJ, allowing direct appeals from any
judgment of a court-martial that includes a finding of
guilty. 10 U.S.C. § 866(b)(1)(A) (2024). On May 31,
2023, the Government notified Appellant of his right
to submit a direct appeal. Appellant filed a notice of
direct appeal on August 11, 2023. The AFCCA
considered the case, and as described above, affirmed
the findings and sentence. Appellant subsequently
petitioned this Court for review asserting jurisdiction
under Article 67(a)(3), UCMJ, 10 U.S.C. § 867(a)(3)
(2024).
We specified the jurisdictional issue and granted
the assigned issue quoted above.
II. Jurisdiction
In its answer to Appellant’s petition for review the
Government asserted that Appellant’s case was final
after he received a review under Article 65(d), UCMJ.
Accordingly, the Government argued that the
subsequent amendment of Article 66(b), UCMJ, did
not apply to his case. As a result, the Government
asserted that the AFCCA lacked jurisdiction and that
this Court should grant review and vacate the
AFCCA’s decision. This Court, however, rejected the
97a
reasoning behind these arguments in Folts. 86 M.J. at
88. Following Folts, we now hold that the AFCCA had
jurisdiction in this case and that we also have
jurisdiction.1
III. Improper Argument
Rule for Courts-Martial (R.C.M.) 919(a) (2019 ed.)
grants trial counsel permission to open the argument
on findings, grants defense counsel permission to
reply, and grants trial counsel permission to reply in
rebuttal. R.C.M. 919(b) then addresses the proper
content of arguments with this statement:
“Arguments may properly include reasonable
comment on the evidence in the case, including
inferences to be drawn therefrom, in support of a
party’s theory of the case.” This case, like many before
it, requires us to address the issue of what constitutes
improper argument.
A. Standards of Review
Whether a statement made during an argument on
findings or sentencing is improper is a question of law
that this Court reviews de novo. United States v. Frey,
73 M.J. 245, 248 (C.A.A.F. 2014).
“Failure to object to improper argument before the
military judge begins to instruct the members on
findings shall constitute forfeiture of the objection.”
R.C.M. 919(c). When an objection is forfeited, this
Court reviews the assertion of improper comment only
for plain error. United States v. Voorhees, 79 M.J. 5, 9
(C.A.A.F. 2019). Plain error has occurred when (1)
there was an error, (2) the error was clear or obvious,
1 In its brief on the merits in this appeal, the Government no
longer contests the AFCCA’s jurisdiction.
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and (3) the error caused material prejudice to a
substantial right of the accused. Id.
Under plain error review, the appellant generally
has the burden of proving material prejudice. Id. But
when an improper argument violates a constitutional
right, the government has the burden of proving that
the error was harmless beyond a reasonable doubt.
United States v. Tovarchavez, 78 M.J. 458, 462
(C.A.A.F. 2019).2 For example, a “comment by the
prosecution on the accused’s silence,” violates an
accused’s Fifth Amendment right to not testify.
United States v. Carter, 61 M.J. 30, 33 (C.A.A.F. 2005)
(internal quotation marks omitted) (quoting Griffin v.
California, 380 U.S. 609, 615 (1965)). Thus, “[i]t is
black letter law that a trial counsel may not comment
directly, indirectly, or by innuendo, on the fact that an
accused did not testify in his defense.” Id. (alteration
in original) (internal quotation marks omitted)
(quoting United States v. Mobley, 31 M.J. 273, 279
(C.M.A. 1990)).
B. Appellant’s Assertions of Improper
Argument
Appellant has asserted that trial defense counsel
made nearly two dozen improper arguments. We have
grouped the challenged comments into five categories
that we discuss below.
2 The Government asks this Court to overrule Tovarchavez
in the light of the Supreme Court’s decision in Greer v. United
States, 593 U.S. 503, 508 (2021) (reviewing a nonstructural
constitutional error for plain error under Fed. R. Crim. P. 52(b)
without requiring the government to prove that the error was
harmless beyond a reasonable doubt). We decline to consider the
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1. Improper Vouching
“Argument may include comment about the
testimony, conduct, motives, interests, and biases of
witnesses to the extent supported by the evidence.”
R.C.M. 919 Discussion. But trial counsel may not
“vouch[]” for the credibility of witnesses. Voorhees, 79
M.J. at 12. Vouching “occurs when the trial counsel
‘plac[es] the prestige of the government behind a
witness through personal assurances of the witness’s
veracity.’ ” United States v. Fletcher, 62 M.J. 175, 180
(C.A.A.F. 2005) (alteration in original) (quoting
United States v. Necoechea, 986 F.2d 1273, 1276 (9th
Cir. 1993)). For example, in Fletcher, trial counsel
improperly vouched for an expert witness by
asserting: “It’s very apparent from talking to Doctor
Jain that he is the best possible person in the whole
country to come speak to us about this.” Id. (internal
quotation marks omitted).
Appellant argues that trial counsel in this case
crossed the line from permissible commentary into
improper vouching when he made the statements
such as:
issue in this case because we do not find any constitutional error
to have occurred.
“[Y]ou have a credible witness. You
have the victim, [C.C.], who came up
here and took the stand and she was
credible.”
“[Y]ou have not been provided with any
real reason to doubt the credibility of
this witness. She’s telling the truth.
What does she have to gain by not
telling the truth?”
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“You know she’s telling the truth.”
Appellant asserts that in making these comments,
trial counsel put the prestige of the Government
behind C.C. and asserted his personal view that she
was credible. The Government responds that the
quoted statements were not improper, arguing that
credibility is a fair subject to discuss and that the
Government merely “flagged for the members that
trial counsel would discuss [C.C.]’s credibility” and
would explain “why the members should believe she
was credible.”
In addressing this issue, we recognize that trial
counsel can address the issue of credibility with
arguments that rely on the evidence. In Fletcher, for
example, the Court held that it was not improper for
“trial counsel to comment on [a witness’s] conflicting
testimony” as a ground for doubting the witness’s
testimony. 62 M.J. at 183. Similarly, in this case, trial
counsel did not act improperly when he asked the
members, in assessing C.C.’s credibility, to “[t]hink
about” whether there were any “benefits for [C.C.] of
reporting a domestic violence claim.”
Nonetheless, we hold that the three statements
quoted above were not fair commentary but instead
were instances of improper vouching. Trial counsel
did not limit himself to commenting on the evidence
relevant to issues of credibility. On the contrary, trial
counsel directly told members that a witness was
credible. The quoted comments were clear and obvious
errors under Voorhees.
2. Disparaging the Defense
Trial counsel may respond to a defense theory with
arguments based on evidence, but trial counsel cannot
use disparaging language, instead of reasoned
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arguments, to make the defense case “seem
fantastical.” Voorhees, 79 M.J. at 10. For example, in
Voorhees, the Court held that trial counsel clearly and
obviously crossed the line by saying “defense counsel’s
imagination is not reasonable doubt.” Id. (internal
quotation marks omitted). Similarly, in Fletcher, the
Court held that it was improper for trial counsel to
disparage a defense counsel’s argument as a “phony
distraction” and to call the defense case “that thing
they tried to perpetrate on you.” 62 M.J. at 182
(internal quotation marks omitted).
In this case, Appellant argues that trial counsel
also crossed the line by repeatedly accusing the
defense of relying on “conspiracy theories,” citing the
following statements:
“Members, the defense can get up here
and come up with any conspiracy
theories they want, but that is not
reasonable.”
“Think about this, this grand
conspiracy theory, when you have two
different witnesses—what are the
chances?”
“The defense needs to get up here and
say that all of these people are just
lying to you; that it’s all one giant
conspiracy theory.”
“Members, what they’re going to do
with that is trying to tell you that if
there’s any doubt at all, if there’s any
conspiracy theory they can sell then
you need to find him not guilty.”
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“The defense can get up here and give
you all sorts of doubts, all sorts of
possible doubts, possible explanations,
possible reasons why this might all just
be a conspiracy theory.”
Appellant contends that when someone uses the
term “conspiracy theory” to describe an argument, the
term implies the argument “is false, and that people
who believe it are irrational.” Appellant asserts that
trial counsel’s repeated use of the term therefore
served only to “equate the defense with a fantastical
theory” in violation of Voorhees. The Government
responds that trial counsel did not use the term
“conspiracy theory” to disparage the defense. Instead,
the Government argues, it employed the term to
explain that “the only argument that the defense
would be able to make to explain the evidence was a
‘conspiracy theory’ that all the witnesses, who did not
know each other, colluded against Appellant.”
We are persuaded that trial counsel’s comments
were improper under Voorhees. In common parlance,
a conspiracy theory is “a theory that explains an event
or set of circumstances as the result of a secret plot by
usually powerful conspirators.” Conspiracy Theory,
Merriam-Webster
Unabridged
Dictionary,
https://unabridged.merriamwebster.com/unabridged/“conspiracy%20theory” (last
visited Feb. 6, 2026); see also 1 Shorter Oxford English
Dictionary 495 (5th ed. 2002) (defining a “conspiracy
theory” as “a belief that some powerful covert agency
(typically political in motivation and oppressive in
intent) is responsible for an unexplained event”). In
the context of this case, where there were no powerful
conspirators, the words “conspiracy theory” could
serve only to disparage the defense without adding
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any argument that could not be made without using
such a loaded term. We hold that the quoted
statements were clear and obvious errors under
Voorhees.
3. Personal Opinions
This Court has held that “[i]t is improper for a trial
counsel to interject herself into the proceedings by
expressing a ‘personal belief or opinion as to the truth
or falsity of any testimony or evidence.’ ” Fletcher, 62
M.J. at 179 (quoting United States v. Horn, 9 M.J. 429,
430 (C.M.A. 1980)). For example, in Fletcher, trial
counsel improperly expressed a personal opinion by
saying “it’s so clear from the urinalyses that [the
accused] was doing it over and over” and the accused
“clearly is a weekend cocaine user.” Id. at 180
(internal quotation marks omitted). Expressing
personal opinions is improper because the members
may view the opinions as evidence and, if these
opinions come from a representative of the
government, the members may give them great
weight. Id.
Appellant argues that trial counsel violated the
prohibition against expressing personal opinions with
statements such as:
“The allegations that you have, the
narrative that you’ve been told, what’s
happened in the marriage between these
two people makes sense. It rings true.
There are no big missing pieces here.”
“None of it [i.e., the defense theory that
all the witnesses are lying] makes
sense.”
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Appellant asserts that trial counsel made these
statements in an attempt to influence the members
with the prestige of the Government and his own view
of C.C.’s testimony. The Government disagrees,
asserting that trial counsel “never implied that the
members should find [C.C.] credible just because the
prosecutor was saying so.”
We hold that the quoted statements were
improper. Trial counsel can ask the members to reject
a defense theory or believe a witness based on
reasoned arguments but cannot express opinions
about the evidence. Trial counsel violated this rule in
the quoted statements because he stated that
testimony “rings true” and that disbelieving the
witnesses would not “make[] sense.” Based on this
Court’s decision in Fletcher regarding similar
language, these statements were clear and obvious
errors.
4. Burden Shifting
“The Due Process Clause of the Fifth Amendment
to the Constitution requires the [g]overnment to prove
the defendant’s guilt beyond a reasonable doubt.”
United States v. Czekala, 42 M.J. 168, 170 (C.A.A.F.
1995) (citing In re Winship, 397 U.S. 358, 363-64
(1970)). Trial counsel therefore may not make
comments during argument that have the effect of
“switch[ing] the burden of proof” from the government
to the accused. United States v. Vasquez, 48 M.J. 426,
430 (C.A.A.F. 1998). Trial counsel sometimes violates
this prohibition by “comment[ing] on the failure of the
defense to produce evidence.” United States v. Taylor,
47 M.J. 322, 324 (C.A.A.F. 1997) (citations omitted).
For example, in Carter, trial counsel used the words
“uncontroverted” and “uncontradicted” eleven times.
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61 M.J. at 34 (internal quotation marks omitted). The
Court held that, in so doing, “trial counsel improperly
implied that [the accused] had an obligation to
produce evidence to contradict the [g]overnment’s
witness” and that this implication “essentially shifted
the burden of proof to [the accused] to establish his
innocence” in violation of the Fifth Amendment. Id.
Our cases, however, have recognized that “the
[g]overnment is permitted to make ‘a fair response’ to
claims made by the defense, even when a Fifth
Amendment right is at stake.” United States v. Gilley,
56 M.J. 113, 120 (C.A.A.F. 2001) (quoting United
States v. Robinson, 485 U.S. 25, 32 (1988)). “Under the
‘invited response’ or ‘invited reply’ doctrine, the
prosecution is not prohibited from offering
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