Petition for Writ of Certiorari — Dennis A. George, Jr., Petitioner v. United States

No. ______

IN THE

Supreme Court of the United States

__________

DENNIS A. GEORGE, JR.,

Petitioner,

v.

UNITED STATES,

Respondent.

__________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the

Armed Forces

__________

PETITION FOR A WRIT OF CERTIORARI

__________

MEGAN R. CROUCH

Counsel of Record

United States Air Force

Appellate Defense Division

1500 West Perimeter Road

Suite 1100

Joint Base Andrews, MD 20762

(240) 612-4770

megan.crouch.1@us.af.mil

Counsel for Petitioner

i

QUESTION PRESENTED

The Government charged Senior Airman (SrA)

Dennis A. George, Jr., with attempted sexual assault.

The plain language of the charging document alleged

that SrA George committed a specific overt act—

penetrating WMB’s mouth without her consent. But

at SrA George’s trial, the Government offered no

evidence that SrA George penetrated WMB’s mouth

with his penis without her consent.

On appeal, SrA George asserted his conviction was

legally insufficient because the Government failed to

prove the charged overt act. Without any case law to

justify its proposition, the United States Court of

Appeals for the Armed Forces (CAAF) created a “new

approach” to interpreting charging documents as part

of its legal sufficiency review—one that relies on the

reading seemingly adopted by the parties at trial,

rather than relying solely on the text. In doing so, the

court instituted a rule that undermines the

protections afforded by the Fifth and Sixth

Amendments to the Constitution.

The question presented is:

Under the Fifth Amendment right to due process

and the Sixth Amendment right to fair notice, may a

conviction be affirmed as legally sufficient based on

the parties’ interpretation of the charging document,

even when that construction conflicts with the plain

language of the allegation?

ii

PARTIES TO THE PROCEEDING

All parties to this proceeding appear in the caption

on the cover page of this petition.

CORPORATE DISCLOSURE STATEMENT

No nongovernmental corporations are parties to

this proceeding.

RELATED PROCEEDINGS

Other than the direct appeals that form the basis

for this petition, there are no related proceedings for

the purposes of Rule 14.1(b)(iii).

iii

TABLE OF CONTENTS

QUESTION PRESENTED ................................................. i

PARTIES TO THE PROCEEDING ...................................... ii

CORPORATE DISCLOSURE STATEMENT.......................... ii

RELATED PROCEEDINGS ............................................... ii

TABLE OF CONTENTS ................................................... iii

TABLE OF AUTHORITIES .............................................. iv

INTRODUCTION ............................................................. 1

OPINIONS BELOW ......................................................... 2

JURISDICTION ............................................................... 2

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED ..................................................................... 2

STATEMENT OF THE CASE ............................................. 2

REASONS FOR GRANTING THE PETITION ....................... 5

CONCLUSION .............................................................. 10

APPENDIX

CAAF Opinion, United States v. George,

No. 24-0206 (July 21, 2025)

1a

Air Force Court Opinion, United States v. George,

No. ACM 40397 (June 7, 2024)

11a

iv

TABLE OF AUTHORITIES

Supreme Court Cases

Cole v. Arkansas, 333 U.S. 196 (1948) ....................... 7

CSX Transp., Inc. v. Alabama Dept. of Revenue,

562 U.S. 277 (2011) ................................................. 9

Davis v. United States, 160 U.S. 469 (1895) .............. 1

Dunn v. United States, 442 U.S. 100 (1979) .......... 7, 8

Garner v. Louisiana, 368 U.S. 157 (1961).............. 1, 9

In re Winship, 397 U.S. 358 (1970) ........................ 1, 5

Jackson v. Virginia, 443 U.S. 307 (1979) ............... 6, 7

Michigan v. Bay Mills Indian Cmty.,

572 U.S. 782 (2014) ................................................. 9

Old Chief v. United States, 519 U.S. 172 (1997)........ 8

Patterson v. New York, 432 U.S. 197 (1977) .............. 5

Statutes and Constitutional Provisions

10 U.S.C. § 880 ............................................................ 2

28 U.S.C. § 1259(3) ..................................................... 2

U.S. Const. amend. V.............................................. 1, 2

U.S. Const. amend. VI ........................................ 1, 2, 5

1

INTRODUCTION

The Government must prove what it alleges. For a

conviction to be legally sufficient, the Government

must prove every fact necessary to constitute the

crime that it charged. In re Winship, 397 U.S. 358, 364

(1970); Davis v. United States, 160 U.S. 469, 493

(1895). In holding the Government to its

constitutional burden, appellate courts “cannot be

concerned with whether the evidence proves the

commission of some other crime.” Garner v.

Louisiana, 368 U.S. 157, 163-65 (1961). Rather, an

appellate court should look only at whether the

Government proved the offense that it charged.

The CAAF, however, established a novel approach

to interpreting charged offenses as part of its legal

sufficiency review. Instead of relying on the plain

language of the charging document, the court deferred

to the reading of the charged offense that the parties

at trial adopted. Pet.App. 9a-10a.

This new approach conflicts with the Fifth and

Sixth Amendments. The plain language of what the

military justice system calls a “specification” of a

charge is what informs a defendant of the nature and

cause of the accusation and ensures a defendant is not

deprived of life or liberty without due process of law.

U.S. CONST. amend. V, VI. Allowing the Government

to disregard the plain language of the offense it

charged and determine a different theory of criminal

liability at the time of trial violates these

constitutional principles.

Granting this writ will ensure courts rely on the

plain language of the charged offense—not as

interpreted by a party at trial—and will protect

defendants’ constitutional rights.

2

OPINIONS BELOW

The decision of the Air Force Court of Criminal

Appeals (Air Force Court) is unreported. It is available

at 2024 CCA LEXIS 224 and is reproduced in the

Appendix at pages 11a-25a. The decision of the CAAF

is pending publication in West’s Military Justice

Reporter. It is available at 2025 CAAF LEXIS 577 and

reproduced in the Appendix at page 1a.

JURISDICTION

The CAAF issued its decision on July 21, 2025.

This Court has jurisdiction under 28 U.S.C. § 1259(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment, in pertinent part, provides:

“No person . . . shall . . . be deprived of life, liberty, or

property, without due process of law.” U.S. CONST.

amend. V.

The Sixth Amendment, in pertinent part, provides:

“In all criminal prosecutions, the accused shall enjoy

the right . . . to be informed of the nature and cause of

the accusation . . . .” U.S. CONST. amend. VI.

STATEMENT OF THE CASE

A. SrA George’s Trial

The Government charged SrA George with

attempted sexual assault in violation of 10 U.S.C.

§ 880. The charging document alleged that

SrA George “did, at or near Newport News, Virginia,

on or about 4 July 2021, attempt to commit a sexual

act upon [WMB] by penetrating her mouth with his

penis without her consent.” Charging Document.

There was no evidence offered at SrA George’s trial

that he penetrated WMB’s mouth. Instead, witnesses

3

testified that on July 3, 2021, SrA George joined

friends, including WMB, at a club. Trial Tr. 403, 442,

469. When the group was leaving the club later that

night, the designated driver observed that everyone in

the group, including SrA George, was “drunk” and

“rowdy.” Id. at 428.

According to WMB, SrA George got in the backseat

of the car with her and put his arm around her. Id. at

391-92. WMB testified that during the car ride,

SrA George grabbed the back of her neck with his left

hand and pushed her head towards his crotch twice.

Id. at 395-96. The second time, WMB claimed her

cheek touched his crotch and she could feel his zipper.

Id. at 396.

WMB told SrA George to “get off of me.” Id. at 476.

When she did this, another passenger in the backseat

asked what was going on and SrA George took his

hand away. Id. at 477.

Despite the lack of evidence that SrA George

penetrated WMB’s mouth with his penis, SrA George

was convicted of the offense. Id. at 631.

B. The Air Force Court Decision

On appeal before the Air Force Court, SrA George

argued, inter alia, that his conviction was legally

insufficient because the Government failed to prove

that he attempted to commit a sexual act upon WMB

by penetrating her mouth with his penis without her

consent. Pet.App. 24a. The Air Force Court disagreed,

instead finding that the language in the specification

denoted the nature of the underlying predicate

offense—not the overt act. Pet.App. 24a-25a. The

court found SrA George’s conviction legally sufficient.

Pet.App. 25a.

4

C. The CAAF Decision

SrA George petitioned his case to the CAAF for a

grant of review, and the court agreed to hear the

following issue: whether SrA George’s conviction for

attempted sexual assault was legally insufficient

because the Government did not prove the alleged

overt act. Pet.App. 2a. SrA George again argued his

conviction was legally insufficient because the

Government failed to prove he penetrated WMB’s

mouth as charged. Pet.App. 7a-8a.

Even though SrA George never argued lack of

notice as part of his appeal, the CAAF opined the “real

issue” in his case was whether he was “provided the

requisite notice to defend against the allegation.”

Pet.App. 7a. The CAAF framed the case as a “dispute

between [SrA George] on appeal and the parties at

trial as to how to interpret the wording of the

specification as drafted,” and whether SrA George

“was provided the requisite notice to defend against

the allegation.” Id. Acknowledging its judicial creation

of a “new approach” to interpreting a charged

specification, the CAAF did not provide any case law

to justify its decision. Pet.App. 9a. n2. The court held

that when there is no objection at trial to the text of

charging document and no claim of a lack of notice at

trial, “the reading of the specification adopted by the

parties at trial is determinative” so long as it is

“reasonable.” Pet.App. 2a, 9a. As such, the court

wrote four sentences explaining why it determined

SrA George’s conviction is legally sufficient. Pet.App.

10a. The CAAF affirmed the decision of the Air Force

Court. Pet.App. 10a.

5

REASONS FOR GRANTING THE PETITION

The CAAF’s new approach to interpreting charging

documents undermines the protections guaranteed by

the Fifth and Sixth Amendments. This Court

explained in Patterson v. New York that “the Due

Process Clause requires the prosecution to prove

beyond a reasonable doubt all of the elements

included in the definition of the offense of which the

defendant is charged.” 432 U.S. 197, 210 (1977). The

Constitution also ensures defendants are informed of

the nature and causes of the accusations against

them. U.S. CONST. amend. VI. Therefore, a defendant

cannot be convicted of an offense of which he has not

been charged, or that the prosecution did not prove

beyond a reasonable doubt. See Winship, 397 U.S. at

364 (“[T]he Due Process Clause protects [an] accused

against conviction except upon proof beyond a

reasonable doubt of every fact necessary to constitute

the crime with which he is charged.”). But the CAAF’s

approach to interpreting the offense of which

SrA George

was convicted disregards these

constitutional principles and upholds a conviction of

an uncharged, unnoticed offense.

In SrA George’s case, the plain language of the

charging document alleged that he attempted to

sexually assault WMB and that he committed a

specific overt act—penetrating WMB’s mouth without

her consent. SrA George did not argue at trial or on

appeal that he was not on notice of this offense. Nor

did he have a reason to object to the charging

document’s text. The charging document was

unambiguous, and the judge’s instructions to the jury

regarding the charged offense were clear. See Trial Tr.

553-555 (The military judge instructed the panel

members that the first element of the charged offense

6

was that “the accused did a certain overt acts [sic],

that is: attempt to commit a sexual act upon [WMB]

by penetrating her mouth with his penis without her

consent.”). As such, SrA George was on notice that the

Government had charged him with an attempt offense

and alleged a specific overt act in the charging

document. But because the Government offered no

evidence of the charged overt act at trial, SrA George’s

conviction is legally insufficient. See Jackson v.

Virginia, 443 U.S. 307, 314 (1979) (“[A] conviction

based upon a record wholly devoid of any relevant

evidence of a crucial element of the offense charged is

constitutionally infirm.”).

Although SrA George raised the issue of legal

sufficiency before the CAAF, the court averred that

the issue in SrA George’s case was whether he had the

requisite notice. Pet.App. 7a. In assessing the issue of

notice, the court sanctioned an unconstitutional

approach to interpreting the words of a charged

offense and inevitably created a notice problem in

violation of the Sixth Amendment. The court

concluded that when there is no claim of a lack of

notice and no objection to the text of the charged

offense at trial, the reading of the charging document

seemingly adopted by the parties at trial is

determinative, so long as it is reasonable. Pet.App. 9a.

But the plain language of the charging document

controls what a defendant can be convicted of—not the

interpretations by parties at trial. And in

SrA George’s case, the interpretation at trial

contradicts the plain understanding of the language

in the charging document.

The trial parties’ interpretation of the charging

document, and the CAAF’s adoption of that

interpretation, substituted an uncharged, unnoticed

7

attempt offense for the charged attempt offense.

Despite the charging document’s text alleging

SrA George committed a specific overt act, the

Government presented a case involving different overt

acts and never introduced evidence of the overt act

specified in the charging document. SrA George’s

conviction, and the CAAF’s reliance on the trial

parties’ interpretation rather than the text of the

charging document as part of its legal sufficiency

review, constitutes a denial of SrA George’s due

process rights. See Jackson, 443 U.S. at 314 (“It is

axiomatic that a conviction upon a charge not made or

upon a charge not tried constitutes a denial of due

process.”); see also Cole v. Arkansas, 333 U.S. 196, 201

(1948) (“It is as much a violation of due process to

send an accused to prison following conviction of a

charge on which he was never tried as it would be to

convict him upon a charge that was never made.”).

The CAAF’s upholding of SrA George’s conviction for

a charge that was never alleged in the charging

document “offends the most basic notions of due

process.” See Dunn v. United States, 442 U.S. 100, 106

(1979).

The CAAF’s new approach allows the Government

to carelessly draft charges against a defendant and

then present a case at trial based on a theory of

criminal liability that conflicts with the plain

language of the charged offense. This risks a

defendant being convicted of an uncharged, unnoticed

offense in violation of the Fifth and Sixth

Amendments. Defendants now have the burden to call

out the Government’s charging blunders prior to trial

and help the Government correct its ill-conceived

charging scheme. This burden shifting directly

contravenes the rights afforded a defendant under the

8

Fifth and Sixth Amendments.

When the plain language of the charging document

states that the defendant attempted to commit a

sexual assault and the overt act is by penetrating the

victim’s mouth with the defendant’s penis, that is the

only offense of which the defendant can be found

guilty. Because the Government failed to prove the

elements of this offense in SrA George’s case, his

conviction is legally insufficient. And appellate courts

may not “revise the basis on which a defendant is

convicted simply because the same result would likely

obtain on retrial.” Dunn, 442 U.S. at 107. It does not

matter if it is “implausible to think that the

Government would have charged an attempt in lieu of

the completed offense if the attempt required them to

prove the completed offense,” as the CAAF asserted.

Pet.App. 8a. The burden is not on a defendant to fix

an illogical charging scheme. See generally Old Chief

v. United States, 519 U.S. 172, 199-200 (1997)

(citation modified) (“At trial, a defendant may thus

choose to contest the Government’s proof on

every element; or he may concede some elements and

contest others; or he may do nothing at all. Whatever

his choice, the Government still carries the burden of

proof beyond a reasonable doubt on each element.”).

Regardless of how the parties at trial may have

interpreted the charged offense, the plain language of

the charging document determines what the

Government has charged and therefore what it must

prove. This is what appellate courts should be looking

at when analyzing a conviction’s legal sufficiency.

Even if the Government might have intended to

charge something broader than it did, the question is

not what the Government meant to charge in the

charging document. Rather, the question is if the

9

Government proved what it did charge. See Garner,

368 U.S. at 165 (limiting the Court’s review to the

specific charge contained within the information); see

also Michigan v. Bay Mills Indian Cmty., 572 U.S.

782, 794 (2014) (citing CSX Transp., Inc. v. Alabama

Dept. of Revenue, 562 U.S. 277, 295-296 (2011))

(explaining that even though a statutory anomaly

arguably “made ‘not a whit of sense’ . . . ‘Congress

wrote the statute it wrote’” and this Court could not

interpret the statute any differently). The plain

language of the charging document against

SrA George expressly alleged an overt act, and the

CAAF cannot disregard the clear language of the

charging document.

The CAAF’s approach to interpreting charged

offenses as part of its legal sufficiency review is

unconstitutional. Unchanged, the CAAF’s framework

and decision will lead to recurring problems at the

trial level, creating a systemic issue across the

military. SrA George’s case provides the perfect

vehicle to assess the CAAF’s new approach because it

offers a clear conflict between the parties’

interpretation of the charging document and the plain

language of the allegation against SrA George. This is

the case to evaluate the CAAF’s reasoning and how it

conflicts with the rights guaranteed by the Fifth and

Sixth Amendments.

10

CONCLUSION

The plain language of the charging document

controls what the Government must prove at trial.

The interpretations of a charged offense adopted by

parties at trial do not dictate what a defendant has

been charged with or convicted of. When the

Government fails to prove all the elements of the

charged offense beyond a reasonable doubt, an

appellant’s conviction must be overturned.

This Court should grant review to hold that the

CAAF’s new approach violates the Fifth and Sixth

Amendments or to summarily grant, vacate, and

remand the case to the CAAF for further

consideration.

Respectfully submitted,

MEGAN R. CROUCH

Counsel of Record

United States Air Force

Appellate Defense Division

1500 West Perimeter Road

Suite 1100

Joint Base Andrews, MD 20762

(240) 612-4770

megan.crouch.1@us.af.mil

Counsel for Petitioner

APPENDIX

TABLE OF CONTENTS

CAAF Opinion, United States v. George,

No. 24-0206 (July 21, 2025) ................................ 1a

Air Force Court Opinion, United States v. George,

No. ACM 40397 (June 7, 2024) ......................... 11a

1a

This opinion is subject to revision before publication.

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

UNITED STATES

Appellee

v.

Dennis A. GEORGE Jr., Senior Airman

United States Air Force, Appellant

No. 24-0206

Crim. App. No. 40397

Argued December 10, 2024—Decided July 21, 2025

Military Judge: Michael A. Schrama

For Appellant: Major Samantha P. Golseth

(argued); Megan P. Marinos, Esq.

For Appellee: Captain Tyler L. Washburn

(argued); Colonel Matthew D. Talcott, Lieutenant

Colonel Jenny A. Liabenow, and Mary Ellen

Payne, Esq. (on brief).

Judge SPARKS delivered the opinion of the

Court, in which Chief Judge OHLSON, Judge

MAGGS, Judge HARDY, and Judge JOHNSON

joined.

_______________

2a

Judge SPARKS delivered the opinion of the Court.

A general court-martial composed of officers and

enlisted members convicted Appellant, contrary to his

pleas, of one specification of attempted sexual assault

without consent, in violation of Article 80, Uniform

Code of Military Justice, 10 U.S.C. § 880 (2018). The

military judge sentenced Appellant to a dishonorable

discharge, five months of confinement, reduction to E1, and a reprimand. The convening authority took no

action on the findings, disapproved the reprimand,

and upheld the rest of the sentence. On appeal, the

United States Air Force Court of Criminal Appeals

(AFCCA) affirmed the findings and sentence. The first

granted issue requires us to decide whether “Appellant’s conviction for attempted sexual assault was

legally insufficient because the Government did not

prove the alleged overt act.” 1 We hold that the reading

of the specification adopted by the parties at trial is

determinative, and, as such, Appellant’s conviction

was legally sufficient. We therefore affirm the decision

of the AFCCA. United States v. George, No. ACM

1 The following additional issues were granted by this Court:

II. Whether the government can prove that 18 U.S.C. §

922 is constitutional as applied to Appellant when he was

convicted of a nonviolent offense.

III. Whether the United States Court of Appeals for the

Armed Forces has jurisdiction to direct modification of

the 18 U.S.C. § 922 prohibition noted on the staff judge

advocate’s indorsement to the entry of judgment.

United States v. George, 85 M.J. 133 (C.A.A.F. 2024) (order

granting review). In accordance with this Court’s decision in

United States v. Johnson, __ M.J. __ (C.A.A.F. 2025), we find that

because this Court lacks the authority to act on the § 922

indication in the entry of judgment, Appellant’s constitutional

challenge to 18 U.S.C. § 922 is moot.

3a

40397, 2024 CCA LEXIS 224, at *15, 2024 WL

2874133, at *6 (A.F. Ct. Crim. App. June 7, 2024)

(unpublished).

I. Background

Appellant and WMB were coworkers stationed

together at Joint Base Langley-Eustis, Virginia. On

the evening of July 3, 2021, WMB, Appellant, and

other coworkers—BL, LC, and QG—went to a local

bar. Later in the evening, Appellant stood in front of

WMB and asked if she was trying to give him “head.”

WMB testified that she understood the term “head” to

mean oral sex. WMB tried to defuse this situation by

laughing off Appellant’s advances and replied “no.” At

that time, WMB was sitting down in a booth, and

Appellant was standing in front of her with his crotch

at her eye level. At trial, WMB testified that, at that

time, she was not sure if Appellant was joking when

he asked her for “head.” She stated she did not want

to escalate the situation by being aggressive toward

Appellant, which caused her to discuss the situation

with QG, and WMB suggested they leave because

Appellant was “getting kind of drunk.”

In the car, WMB sat in the middle back seat with

Appellant to her left and QG to her right. Appellant

put his right arm around WMB and stated he really

wanted her to give him “head.” He whispered in her

ear, “I am being dead ass. I really want head.” WMB

testified that she took this to mean that Appellant was

serious. WMB again told Appellant, “no.” Appellant

once again told WMB that she should give him “head,”

and when she continued to refuse, Appellant grabbed

the back of WMB’s neck and forced her head towards

his crotch. WMB resisted and was able to push herself

away. Appellant then grabbed her again, and more

4a

forcefully pushed her toward his crotch. This time her

cheek touched what WMB believed to be Appellant’s

crotch because she could feel his zipper. WMB then

used her hand to alert QG, who was leaning over the

front seat, to the situation. QG heard WMB in a

“panicked” state tell Appellant to “get the fuck off”

her. That was when QG noticed what was going on.

QG saw Appellant’s hand on the back of WMB’s head

and that Appellant was trying to force WMB’s head

down onto his lap, and he intervened. Due to the

commotion in the back seat, the driver, BL, stopped

the car. When Appellant exited the vehicle, WMB and

LC noticed that Appellant’s pants were unzipped, and

his underwear was visible.

Appellant was charged with the following:

SENIOR AIRMAN DENNIS A. GEORGE, . . .

did, at or near Newport News, Virginia . . .

attempt to commit a sexual act upon Senior

Airman [WMB] by penetrating her mouth with

his penis without her consent.

The military judge provided the following

instruction with regard to the alleged offense:

Charge I, Attempt, Sexual Assault without

Con-sent. That, at or near Newport News,

Virginia, on or about 4 July 2021, [Appellant]

did a certain overt act, that is: attempt to

commit a sexual act upon [WMB] by

penetrating her mouth with his penis without

her consent; that the act was done with specific

intent to commit the offense of sexual assault

without consent; That the act amounted to

more than mere preparation, that is, it was

substantial, excuse me, it was a substantial

step and a direct movement toward the

5a

commission of the intended offense of sexual

assault without con-sent, that is, the act

apparently would have resulted in the actual

commission of the offense of sexual assault

without consent except for [WMB’s] physical

and or verbal protestation, which pre-vented

completion of the offense.

The military judge instructed on preparation as

follows:

Preparation consists of devising or arranging

the means or measures necessary for the

commission of the attempted offense. To find

the accused guilty of this offense, you must find

beyond a reasonable doubt that [Appellant]

went beyond preparatory steps, and his act

amounted to a substantial step and a direct

movement toward the commission of the

intended offense. A substantial step is one that

is strongly corroborative of the accused’s

criminal intent and is indicative of his resolve

to commit the offense.

Prior to providing findings instructions to the

members, the military judge consulted with counsel

from both sides and asked that they “specifically

affirm that the instructions are correct statement[s] of

the law to the best of [the parties’] understanding.”

Counsel for each side responded in the affirmative.

The military judge specifically asked if there were any

objections to the instructions, to which trial counsel

and trial defense counsel answered, “no.” The military

judge provided the elements of the underlying attempted offense as follows:

That at or near Newport News, Virginia, on or

about 4 July 2021, [Appellant] committed a

6a

sexual act upon [WMB], by penetrating her

mouth with his penis; and that [Appellant] did

so without the consent of WMB.

The definitions of the attempted offense are:

Sexual act means the penetration, however

slight, of the penis into the vulva or anus or

mouth.

Consent means a freely given agreement to the

conduct at issue by a competent person. An expression of lack of consent through words or conduct

means there is no consent.

Trial counsel argued during closing argument on

findings that two specific overt acts occurred: (1) the

act of holding WMB’s head down toward his lap; and

(2) the act of undoing his pants prior to holding WMB’s

head down toward his crotch. Defense counsel failed

to object to trial counsel’s assertion that these acts

could satisfy the overt act requirement.

On appeal, Appellant, for the first time, argued

that the completed offense language in the

specification constituted the overt act the Government

was required to prove. The AFCCA summarized

Appellant’s argument, and its conclusion, as follows:

Specifically, Appellant argues that the highlighted language denotes the overt act element,

meaning the Government was required to prove

that Appellant actually penetrated WMB’s

mouth with his penis. We disagree and find

that the language in the specification was

designed to, and did in fact, place Appellant on

notice of the nature of the underlying predicate

offense—that he attempted to sexually assault

WMB without her consent.

7a

George, 2024 CCA LEXIS 224, at *14, WL 2874133,

at *5 (footnote omitted).

II. Discussion

Appellant has framed this case as an issue of legal

sufficiency. However, rather than a claim of

insufficiency of the evidence, the real issue appears to

be a dispute between Appellant on appeal and the

parties at trial as to how to interpret the wording of

the specification as drafted, and whether Appellant

was provided the requisite notice to defend against the

allegation. We review issues of legal sufficiency de

novo. United States v. Harrington, 83 M.J. 408, 414

(C.A.A.F. 2023). The test for legal sufficiency is

whether, “viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime

beyond a reason-able doubt.” United States v.

Robinson, 77 M.J. 294, 297-98 (C.A.A.F. 2018). The

legal sufficiency assessment “draw[s] every

reasonable inference from the evidence of record in

favor of the prosecution.” Id. at 298 (alteration in

original) (internal quotation marks omitted) (quoting

United States v. Plant, 74 M.J. 297, 301 (C.A.A.F.

2015)). Thus, “[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) (internal quotation

marks omitted) (citation omitted).

A specification is sufficient if it fairly informs an

accused of the offense he must defend against and

enables the accused to “plead an acquittal or

conviction in bar of future prosecutions for the same

offense.” United States v. Norwood, 71 M.J. 204, 206

(C.A.A.F. 2012) (quoting Ham-ling v. United States,

8a

418 U.S. 87, 117 (1974)). “A specification is sufficient

if it alleges every element of the charged offense

expressly or by necessary implication . . . .” Rule for

Courts-Martial 307(c)(3) (2019 ed.).

Appellant’s reading of the specification requires us

to believe that the Government charged an attempted

sexual assault and pleaded the complete offense as the

overt act. It is implausible to think that the

Government would have charged an attempt in lieu of

the completed offense if the attempt required them to

prove the completed offense.

“Both [the Fifth and Sixth] amendments ensure

the right of an accused to receive fair notice of what

[they are] being charged with.” United States v.

Girouard, 70 M.J. 5, 10 (C.A.A.F. 2011). Because there

was no objection at trial, the scope of our review is

limited to whether there was plain error. See United

States v. Warner, 73 M.J. 1, 3 (C.A.A.F. 2013)

(reviewing defects in charges—such as claims of lack

of fair notice—for plain error “[w]hen not objected to

at trial”). Under plain error review, Appellant has the

burden of demonstrating that: “(1) there was error; (2)

the error was plain or obvious; and (3) the error

materially prejudiced a substantial right of

[Appellant].” United States v. Rocha, 84 M.J. 346, 349

(C.A.A.F. 2024) (internal quotation marks omitted)

(quoting United States v. Wil-kins, 71 M.J. 410, 412

(C.A.A.F. 2012)). “[A]n error is ‘plain’ when it is

‘obvious’ or ‘clear under current law.’” Warner, 73 M.J.

at 4 (quoting United States v. Olano, 507 U.S. 725, 734

(1993)).

First, we must address whether there was any

error at all. Here, we are presented with a

specification that may have multiple interpretations.

9a

In such a case, where there is no objection to the

wording of the specification and no claim of a lack of

notice at trial, we will adopt the reading of the charge

and specification that it appears the parties at trial

adopted if that interpretation is reasonable. 2 It appears that both parties at trial reasonably understood

that the challenged language did not describe an

expressly alleged overt act but instead served to

provide proper notice of the predicate offense.

At trial, defense counsel did not move for a bill of

particulars, made no objection based on a lack of

notice as to what to defend against, and did not object

to the military judge’s instructions to the members

regarding the specification. Finally, Appellant has

made no claim of ineffective assistance on the part of

his trial defense counsel for not doing so. 3 Appellant’s

counsel never objected to the military judge’s

instruction to the members that “by penetrating” was

part of the predicate offense. His trial defense counsel

spent much of his closing argument arguing that the

two overt acts the Government ultimately proved—

the act of holding WMB’s head down toward his lap

and the act of undoing his pants prior to holding

WMB’s head down to-ward his crotch—did not occur.

2 While this is a new approach, it is not dissimilar from how this

Court has addressed ambiguities in the pretrial agreement

context. See United States v. Acevedo, 50 M.J. 169, 172-74

(C.A.A.F. 1999) (holding that the actions of the participants at

trial can resolve ambiguous terms in pretrial agreements).

3 We might speculate whether Appellant, a lay person, could have

conceivably expressed his confusion to his counsel regarding his

reading of the specification. However, in the absence of a claim

of ineffective assistance, we must presume that if there were any

such concerns, they were allayed by counsel and that Appellant

was satisfied with the advice of his counsel.

10a

All of this indicates that the parties at trial

understood that the challenged language did not

describe an expressly alleged overt act, but instead

served to provide proper notice of the predicate

offense. To be clear, the specification could have been

drafted more clearly; however, it is not so poorly

drafted that there is no conceivable interpretation

that renders the charge valid, nor does it appear any

of the parties viewed it as invalid at the trial. Here,

there is no error, plain or otherwise.

Having established Appellant had sufficient

notice, the Court can now answer Appellant’s legal

sufficiency claim using the reading of the charge that

was adopted at trial. In this case, the Government

argued that the evidence established both that

Appellant undid his pants and forced WMB’s head

down toward his lap. Appellant does not dispute that

these were proven at trial. And either of these actions

provide the overt act necessary to prove a charge of

attempted sexual assault. Thus, viewing this evidence

in a light most favorable to the prosecution,

Appellant’s conviction was legally sufficient.

III. Conclusion

The decision of the United States Air Force Court

of Criminal Appeals is affirmed.

11a

UNITED STATES AIR FORCE COURT OF

CRIMINAL APPEALS

________________________

No. ACM 40397

________________________

UNITED STATES

Appellee

v.

Dennis A. GEORGE, Jr.

Senior Airman (E-4), U.S. Air Force, Appellant

________________________

Appeal from the United States Air Force Trial

Judiciary

Decided 7 June 2024

________________________

Military Judge: Michael A. Schrama.

Sentence: Sentence adjudged on 19 August 2022 by

GCM convened at Joint Base Langley-Eustis,

Virginia. Sentence entered by military judge on 17

October 2022: Dishonorable discharge, confinement

for 5 months, and reduction to E-1.

For Appellant: Major Samantha P. Golseth, USAF.

For Appellee: Colonel Zachary T. Eytalis, USAF;

Lieutenant Colonel Thomas J. Alford, USAF;

Lieutenant Colonel J. Peter Ferrell, USAF; Major

Jocelyn Q. Wright, USAF; Mary Ellen Payne, Esquire.

12a

Before ANNEXSTAD, DOUGLAS, and MASON,

Appellate Military Judges.

Senior Judge ANNEXSTAD delivered the opinion of

the court, in which Judge DOUGLAS and Judge

MASON joined.

________________________

This is an unpublished opinion and, as such,

does not serve as precedent under AFCCA Rule

of Practice and Procedure 30.4.

________________________

ANNEXSTAD, Senior Judge:

Appellant was tried and convicted, contrary to his

pleas, by a general court-martial composed of officer

and enlisted members, of one specification of

attempted sexual assault without consent, in violation

of Article 80, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 880. 4,5 The military judge

sentenced Appellant to a dishonorable discharge,

confinement for five months, reduction to the grade of

E-1, and a reprimand. The convening authority took

no action on the findings, disapproved the reprimand,

and approved the remainder of the sentence. 6

1 References to the punitive articles are to the Manual for Courts-

Martial, United States (2019 ed.). Unless otherwise noted, all

other references to the UCMJ are to the Manual for CourtsMartial, United States (2024 ed.).

2 Appellant was found not guilty of one specification of abusive

sexual contact in violation of Article 120, UCMJ, 10 U.S.C. § 920.

3 The convening authority denied Appellant’s request to reduce

his confinement by a month.

13a

Appellant raised seven issues on appeal, which we

have reworded: (1) whether Appellant’s conviction for

attempted sexual assault is legally and factually

sufficient; (2) whether the military judge erred in

instructions to the members on the elements of the

offense; (3) whether Appellant was denied his right to

a unanimous verdict; (4) whether 18 U.S.C. § 922 is

constitutional; (5) whether the military judge erred in

denying a defense challenge for cause; (6) whether the

military judge erred in refusing to instruct the

members on a witness’s prior inconsistent statement;

and (7) whether the victim’s written unsworn

statement contained impermissible content. 7,8

We find Appellant affirmatively waived issue (2).

See United States v. Davis, 79 M.J. 329, 331 (C.A.A.F.

2020) (“[By] affirmatively declin[ing] to object to the

military judge’s instructions and offer[ing] no

additional instructions[,] . . . [a]ppellant waived all

objections to the instructions, including in regard[ ] to

the elements of the offense.” (Citations omitted)).

Given the changes to Article 66(d)(1)(A), UCMJ, 10

U.S.C. § 866(d)(1)(A), in which Congress removed the

phrase “should be approved,” we no longer have the

ability to pierce waiver with regard to findings to

4 Appellant personally raised issues (5), (6), and (7) pursuant to

United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).

This court specified one additional issue (8) whether the

specification for attempted sexual assault without consent failed

to state an offense by omitting a necessary element of the

inchoate offense, to wit: a certain overt act. We have carefully

considered this issue and find it does not require discussion or

warrant relief. See United States v. Matias, 25 M.J. 356, 361

(C.M.A. 1987).

5

14a

address what would otherwise be prejudicial error. 9

See United States v. Chin, 75 M.J. 220, 223 (C.A.A.F.

2016) (citation omitted) (holding service Courts of

Criminal Appeals’ (CCA) ability to pierce waiver was

predicated on the phrase “should be approved” in the

prior versions of the Manual for Courts-Martial under

Article 66, UCMJ); see also United States v. Coley,

ARMY 20220231, 2024 CCA LEXIS 127, at *8–9 (A.

Ct. Crim. App. 13 Mar. 2024) (unpub. op.) (holding the

2021 amendment to Article 66(d), UCMJ, abrogated

the CCAs’ ability to pierce waiver as to errors

associated with findings (citations omitted)).

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, the Fifth Amendment’s due process

clause, or the Fifth Amendment’s component of equal

protection 10), cert. denied, 144 S. Ct. 1003 (2024).

We have carefully considered issue (4). As

recognized in United States v. Lepore, 81 M.J. 759, 763

(A.F. Ct. Crim. App. 2021) (en banc), this court lacks

the authority to direct modification of the 18 U.S.C.

§ 922(g) prohibition noted on the staff judge advocate’s

indorsement. See also United States v. Vanzant, __

M.J. __, No. ACM 22004, 2024 CCA LEXIS 215, at *24

(A.F. Ct. Crim. App. 28 May 2024) (concluding that

6 Under the most recent changes to Article 66(d)(1)(A), UCMJ,

this court “may affirm only such findings of guilty as the Court

finds correct in law, and in fact.” 10 U.S.C. § 866(d)(1)(A); see also

The National Defense Authorization Act for Fiscal Year 2021,

Pub. L. 116-283, § 542(b)(1)(A), 134 Stat. 3388, 3661–62 (1 Jan.

2021).

7 U.S. CONST. amends. V, VI.

15a

“[t]he firearms prohibition remains a collateral

consequence of the conviction, rather than an element

of findings or sentence, and is therefore beyond our

authority to review”).

With respect to issues (5), (6), and (7), we have

carefully considered Appellant’s contentions and find

they do not require discussion or warrant relief. See

United States v. Matias, 25 M.J. 356, 361 (C.M.A.

1987).

After considering the remaining issue (1) of factual

and legal sufficiency, we find no error that materially

prejudiced a substantial right of Appellant and affirm

the findings and sentence.

I. BACKGROUND

Appellant and WMB were co-workers stationed

together at Joint Base Langley-Eustis, Virginia. On

the evening of 3 July 2021, WMB, Appellant, and some

fellow co-workers—BL, LC, and QG—went out to a

local bar. At one point in the evening Appellant stood

in front of WMB and asked if she was trying to give

him “head.” WMB testified that she understood the

term “head” to mean oral sex. WMB tried to laugh it

off to defuse the situation and said “no.” At that time,

WMB was sitting down, and Appellant was standing

in front of her with his groin at her eye level. At trial

WMB testified that she was not sure if Appellant was

joking when, as she interpreted, he asked her for oral

sex. She stated she did not want to escalate the

situation by being aggressive toward Appellant, which

caused her to discuss the situation with QG and

suggest they leave because Appellant was “getting

kind of drunk.”

During the ride home from the bar, WMB sat in

the middle backseat with Appellant to her left and QG

16a

to her right. While in the car, Appellant put his right

arm around WMB and stated he really wanted her to

give him “head.” WMB testified that Appellant

whispered in her ear and said, “I am being dead a[*]s.

I really want head.” WMB took this to mean that

Appellant was serious about his request. WMB again

told Appellant “no.” Subsequently, Appellant grabbed

the back of WMB’s neck and pushed her head toward

his groin. WMB was able to resist and pushed herself

away, but before she could say anything to stop him,

Appellant grabbed her again and, with more force,

pushed her head back towards his groin. WMB

explained at trial that it was a lot harder for her to

push away the second time. She also described that

this time her cheek touched what WMB believed to be

Appellant’s crotch because she could feel his zipper.

WMB then explained how she used her hand to

alert QG, who was leaning over the front seat, to the

situation. QG testified that he remembered WMB

asking Appellant on the ride home “why is [his] d[**]k

out” but did not notice anything alarming at that

point. Shortly thereafter, QG stated he heard WMB in

a “panicked” state tell Appellant to “get the f[**]k off”

her. That was when QG noticed what was going on

and intervened to get Appellant to let go of WMB.

Specifically, on this point, QG stated that he saw

Appellant’s hand on the back of WMB’s head and that

Appellant was trying to force WMB’s head down onto

his lap. After QG intervened, WMB started yelling at

Appellant and attempted to hit him with her hands.

Because of the commotion in the back seat the driver,

BL, stopped the car at a convenience store. When

Appellant exited the vehicle, WMB and LC noticed

that Appellant’s pants were unzipped, and his

underwear was visible. BL then took Appellant home

17a

and left QG, LC, and WMB at the convenience store.

A friend of LC’s came by and gave LC, QG, and WMB

a ride home.

II. DISCUSSION

A. Legal and Factual Sufficiency

On appeal, Appellant contends his conviction is

legally and factually insufficient. Specifically,

Appellant makes two arguments: (1) that the

Government alleged Appellant committed specific

act—penetrating WMB’s mouth with his penis—in an

attempt to commit a sexual assault, and failed to

prove that specific act occurred; and (2) that the

Government failed to prove beyond a reasonable doubt

that Appellant intended to sexually assault WMB

without her consent. Appellant requests we set aside

the findings and sentence. We disagree with

Appellant’s contentions and find no relief is

warranted.

1. Additional Background

The attempted sexual assault without consent of

WMB (Charge I and its Specification) provided that

Appellant: “did, at or near Newport News, Virginia, on

or about 4 July 2021, attempt to commit a sexual act

upon [WMB] by penetrating her mouth with his penis

without her consent.”

During findings instructions related to Charge I

and its Specification, the military judge provided the

following instructions to the court members:

Charge I, Attempt, Sexual Assault without

Consent. That, at or near Newport News,

Virginia, on or about 4 July 2021, the accused

did a certain overt act[ ], that is: attempt to

18a

commit a sexual act upon [WMB] by

penetrating her mouth with his penis without

her consent; That the act was done with specific

intent to commit the offense of sexual assault

without consent; That the act amounted to

more than mere preparation, that is, it was

substantial, excuse me, it was a substantial

step and a direct movement toward the

commission of the intended offense; and that

such act apparently tended to bring about the

commission of the offense of sexual assault

without consent, that is, the act apparently

would have resulted in the actual commission

of the offense of sexual assault without consent

except for [WMB’s] physical and or verbal

protestation, which prevented completion of

that offense.

The military judge then instructed the members on

preparation as follows:

Preparation consists of devising or arranging

the means or measures necessary for the

commission of the attempted offense. To find

the accused guilty of this offense, you must find

beyond a reasonable doubt that the accused

went beyond preparatory steps, and his act

amounted to a substantial step and a direct

movement toward the commission of the

intended offense. A substantial step is one that

is strongly corroborative of the accused’s

criminal intent and is indicative of his resolve

to commit the offense.

19a

2. Law

We review issues of legal and factual sufficiency de

novo. United States v. Washington, 57 M.J. 394, 399

(C.A.A.F. 2002) (citation omitted).

“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) (quoting United States v.

Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017)). “The term

reasonable doubt, however, does not mean that the

evidence must be free from conflict.” United States v.

Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017)

(citing United States v. Lips, 22 M.J. 679, 684

(A.F.C.M.R. 1986)), aff’d, 77 M.J. 289 (C.A.A.F. 2018).

“[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). The test for legal sufficiency “gives

full play to the responsibility of the trier of fact fairly

to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from

basic facts to ultimate facts.” United States v. Oliver,

70 M.J. 64, 68 (C.A.A.F. 2011) (quoting Jackson v.

Virginia, 443 U.S. 307, 319 (1973)).

The National Defense Authorization Act for Fiscal

Year 2021 significantly changed how CCAs conduct

factual sufficiency reviews. Pub. L. No. 116-283,

20a

§ 542(b)(1)(B), (c), 134 Stat. 3388, 3612 (1 Jan. 2021).

“Congress undoubtedly altered the factual sufficiency

standard in amending the statute, making it more

difficult for a [CCA] to overturn a conviction for

factual sufficiency.” United States v. Harvey, 83 M.J.

685, 691 (N.M. Ct. Crim. App. 2023), rev. granted, ___

M.J.___, No. 23-0239, 2024 CAAF LEXIS 13 (C.A.A.F.

10 Jan. 2024). Previously, the test for factual

sufficiency required the court, after weighing the

evidence in the record of trial and making allowances

for not having personally observed the witnesses, to

be convinced of the appellant’s guilt beyond a

reasonable doubt before it could affirm a finding.

United States v. Reed, 54 M.J. 37, 41 (C.A.A.F. 2000).

“In conducting this unique appellate role, we [took] ‘a

fresh, impartial look at the evidence,’ applying

‘neither a presumption of innocence nor a

presumption of guilt’ to ‘make [our] own independent

determination as to whether the evidence constitutes

proof of each required element beyond a reasonable

doubt.’” Wheeler, 76 M.J. at 568 (second alteration in

original) (quoting Washington, 57 M.J. at 399). 11

8 The court is mindful that there are contours of the new factual

sufficiency review standard that arguably could impact

applications of the rule as discussed by this court and our sister

service courts. See United States v. Coe, __ M.J. __, 2024 CCA

LEXIS 52, at *15 (A. Ct. Crim. App. 1 Feb. 2024) (en banc);

Harvey, 83 M.J. at 685; see also United States v. Csiti, No. ACM

40386, 2024 CCA LEXIS 160, at *11 (A.F. Ct. Crim. App. 29 Apr.

2024) (unpub. op.). These contours are not dispositive in this

particular case as the evidence does not make factual sufficiency

of the conviction a close call. Even if we applied our previous

factual sufficiency review standard, we would not grant relief as

we ourselves are convinced of Appellant’s guilt of the

specification at issue beyond a reasonable doubt.

21a

The current version of Article 66(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(1)(B) (emphasis added).

“[T]he finder of fact at the trial level is always in

the best position to determine the credibility of a

witness.” United States v. Peterson, 48 M.J. 81, 83

(C.A.A.F. 1998).

Appellant was charged with attempted sexual

assault of WMB without consent, which required the

Government to prove the following elements beyond a

reasonable doubt: (1) that Appellant did a certain

overt act; (2) that such act was done with the specific

intent to sexually assault WMB by penetrating her

mouth with Appellant’s penis without her consent, an

22a

offense in violation of Article 120, UCMJ; (3) that such

act amounted to more than mere preparation; that is,

it was a substantial step and a direct movement

toward the sexual assault of WMB; and (4) that the

act apparently tended to effect the commission of the

intended offense. See 10 U.S.C. § 920; Manual for

Courts-Martial, United States (2019 ed.) (2019 MCM),

pt. IV, ¶ 4.b. That is, the act apparently would have

resulted in the actual commission of the offense of

sexual assault without consent except for a

circumstance unknown to Appellant or an unexpected

intervening circumstance which prevented completion

of that offense. See Military Judges’ Benchbook, Dept.

of the Army Pamphlet 27-9 at 1017–18 (12 Apr. 2024).

The elements to the underlying offense of sexual

assault without consent in this case are: (1) that

Appellant committed a sexual act upon WMB, by

penetrating WMB’s mouth with Appellant’s penis;

and (2) Appellant did so without WMB’s consent. 2019

MCM, pt. IV, ¶ 60.b.(2)(d).

In charging an attempted offense under the

UCMJ, it is not necessary to allege the overt act or the

elements of the underlying predicate, or target

offense, as long as the accused is adequately on notice

of the nature of the offense. United States v. Norwood,

71 M.J. 204, 206–07 (C.A.A.F. 2012) (citations

omitted).

3. Analysis

Regarding the offense of which Appellant was

convicted, we find the Government introduced

sufficient evidence of Appellant’s guilt during his

court-martial.

23a

In the court’s view, the most significant evidence

came directly from the victim, WMB, who described in

convincing detail, the progression of Appellant’s

actions on the night of the offense. WMB testified that

Appellant requested oral sex from her on one occasion

while at the bar, and a couple more times on the car

ride home. She also testified that he told her he was

serious about his desire for her to perform oral sex on

him. Additionally, WMB testified that she told

Appellant “no” while at the bar, and also told him “no”

multiple times in the car. WMB’s testimony was

sufficiently clear that after she rejected him,

Appellant grabbed the back of her neck and forced her

head into his groin close enough to his penis that her

cheek pressed against the zipper of his pants. WMB

explained that when she resisted, he applied more

force to her neck. WMB described how she had to get

the attention of QG to break free of Appellant’s grasp.

We find WMB’s testimony alone is sufficient to

support conviction for the charged offense. As an

evidentiary standard, proof beyond a reasonable

doubt does not require more than one witness to

testify credibly. See United States v. RodriguezRivera, 63 M.J. 372, 383 (C.A.A.F. 2006) (holding that

the testimony of a single witness may satisfy the

Government’s burden to prove every element of a

charged offense beyond a reasonable doubt (citations

omitted)).

That stated, there was also evidence presented

that corroborated crucial portions of WMB’s

testimony, including testimony from QG who

witnessed Appellant’s actions in the back seat of the

car and intervened on WMB’s behalf. QG also testified

that he had to restrain WMB in the backseat of the

car as she was attempting to hit Appellant.

24a

Additionally, testimony from LC also corroborated

WMB’s testimony that Appellant’s pants were

unzipped and his underwear was visible when

Appellant exited the car. Finally, there was testimony

from multiple witnesses who testified that after they

stopped at the convenience store, they observed WMB

was upset with Appellant.

Appellant’s first contention on appeal is that the

wording in the specification required the Government

to prove that Appellant attempted to commit a sexual

act upon WMB by penetrating her mouth with his

penis without her consent. Specifically, Appellant

argues that the highlighted language denotes the

overt act element, meaning the Government was

required to prove that Appellant actually penetrated

WMB’s mouth with his penis. 12 We disagree and find

that the language in the specification was designed to,

and did in fact, place Appellant on notice of the nature

of the underlying predicate offense—that he

attempted to sexually assault WMB without her

consent.

Additionally,

Appellant

argues

that

the

Government did not sufficiently prove that Appellant

intended to have WMB perform oral sex on him

without her consent. Again, as we highlighted supra,

both direct and circumstantial evidence were

presented at trial including testimony from WMB that

she clearly communicated her lack of consent to

Appellant, and that, after she communicated her lack

9 Appellant’s argument

is essentially that we should conclude

that the Government was required to prove the completed offense

before we can find the conviction for the attempted offense

factually sufficient. We decline to view the specification or the

evidence in that light.

25a

of consent, Appellant grabbed the back of her neck and

forced her head towards his groin.

We conclude that viewing the evidence in the light

most favorable to the Prosecution demonstrates that

a rational trier of fact could have found the essential

elements of the offense beyond a reasonable doubt. See

Robinson, 77 M.J. at 297−98. As to the factual

sufficiency of this offense, 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(1)(B)(i), UCMJ, supra. However,

having given appropriate deference to the fact that the

court members saw and heard the witnesses and other

evidence, the court is not clearly convinced that the

finding of guilty was against the weight of the

evidence. Thus, the finding is factually sufficient.

III. CONCLUSION

The findings and sentence as entered are 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 sentence are

AFFIRMED.

FOR THE COURT

FLEMING E. KEEFE, Capt, USAF

Acting Clerk of the Court