Petition for Writ of Certiorari — Nikolas S. Casillas, Petitioner v. United States

ia

APPENDIX

TABLE OF CONTENTS

Casillas

Court of Appeals for the Armed Forces Decision

(Aug. 20, 2025) ..................................................... 1a

Court of Appeals for the Armed Forces Order Denying

Reconsideration (Sep. 26, 2025) ........................ 18a

Air Force Court of Criminal Appeals Decision

(Dec. 15, 2023) ................................................... 19a

Johnson

Court of Appeals for the Armed Forces Decision

(June 24, 2025) .................................................. 42a

Court of Appeals for the Armed Forces Order Denying

Reconsideration (July 14, 2025) ........................ 59a

Air Force Court of Criminal Appeals Decision

(Aug. 9, 2023) ..................................................... 60a

1a

This opinion is subject to revision before publication.

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

UNITED STATES

Appellee

v.

Nikolas S. CASILLAS, Airman First Class

United States Air Force, Appellant

No. 24-0089

Crim. App. No. 40302

Argued January 14, 2025—Decided August 20, 2025

Military Judge: Colin P. Eichenberger

For Appellant: Captain Samantha M. Castanien

(argued); Major Spencer R. Nelson (on brief);

Lieutenant Colonel Allen S. Abrams.

For Appellee: Captain Kate E. Lee (argued); Colonel

Matthew D. Talcott, Lieutenant Colonel Jenny A.

Liabenow, and Mary Ellen Payne, Esq. (on brief).

Judge HARDY delivered the opinion of the Court, in

which Chief Judge OHLSON, Judge SPARKS, Judge

MAGGS, and Judge JOHNSON joined.

_______________

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Judge HARDY delivered the opinion of the Court.

Airman First Class SF, the victim in this case, fell

asleep after hosting a party in her apartment for a

fellow servicemember. Appellant, Airman First Class

Nikolas S. Casillas, remained in SF’s apartment after

most of the other guests went home. When SF woke

up, Appellant was committing a sexual act upon her.

Under the theory that SF did not consent to the

sexual act, the Government charged Appellant with

two specifications of sexual assault in violation of

Article 120, Uniform Code of Military Justice (UCMJ),

10 U.S.C. § 920 (2018).1 A general court-martial

convicted Appellant of one of those specifications and

acquitted him of the other. The United States Air

Force Court of Criminal Appeals (AFCCA) affirmed.

United States v. Casillas, No. ACM 40302, 2023 CCA

LEXIS 527, at *25, 2023 WL 8678806, at *9 (A.F. Ct.

Crim. App. Dec. 15, 2023) (unpublished).

Before this Court, Appellant challenges multiple

aspects of his conviction. First, Appellant brings both

facial

and

as-applied

challenges

to

the

constitutionality of Article 120(b)(2) and (g)(7), UCMJ.

Second, Appellant argues that his conviction was

legally insufficient. Third, Appellant argues that the

military judge abused his discretion when he denied

Appellant’s challenges of a panel member for actual

and implied bias. And finally, Appellant raises two

issues related to 18 U.S.C. § 922, a provision of the

Gun Control Act of 1968 that restricts the Second

1 Unless otherwise noted, all references in this opinion to the

UCMJ are to the Manual for Courts-Martial, United States (2019

ed.) (MCM).

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Amendment rights of various categories of people,

including people convicted of certain crimes.2

In light of this Court’s opinion in United States v.

Mendoza, 85 M.J. 213 (C.A.A.F. 2024), we deny

Appellant’s constitutional challenges to Article 120,

UCMJ. We also reject Appellant’s challenge to the

2 The Court granted review of the following six issues:

I. Whether Article 120(b)(2) and (g)(7), Uniform Code

of Military Justice, 10 U.S.C. §§ 920(b)(2) and (g)(7),

are unconstitutionally vague because they fail to put

defendants on fair notice of the specific charge against

them.

II. As applied, whether Article 120(b)(2) and (g)(7),

Uniform Code of Military Justice, 10 U.S.C. §§

920(b)(2) and (g)(7), gave Appellant constitutional fair

notice when the military judge denied defense counsel’s

request for a tailored jury instruction.

III. Whether Appellant’s conviction for sexual as-sault

without consent was legally sufficient.

IV. In a sexual assault trial, did the military judge

abuse his discretion when he denied the accused’s

challenge for actual and implied bias for a member

whose wife had been raped?

V. 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.

VI. As applied to Appellant, whether the Government

can prove 18 U.S.C. § 922 is constitutional by

“demonstrating that it is consistent with the nation’s

historical tradition of firearm regulation” when he was

not convicted of a violent offense (quoting New York

State Rifle and Pistol Association, Inc. v. Bruen, 597

U.S. 1, 24 (2022)).

United States v. Casillas, 84 M.J. 477 (C.A.A.F. 2024) (order

granting review).

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legal sufficiency of his conviction because there was a

period during the sexual assault—after the victim

awoke—when the victim was capable of consenting,

but she did not consent to sexual activity.

With respect to Appellant’s challenge of Chief

Master Sergeant (CMSgt) AG, a panel member, for

actual and implied bias, we conclude that the military

judge did not err in denying those challenges. Finally,

in accordance with this Court’s decision in United

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

decide that because this Court lacks the authority to

act on the § 922 indication in the Entry of Judgment

(EOJ), Appellant’s constitutional challenge to 18

U.S.C. § 922 is moot. Accordingly, we affirm the

judgment of the AFCCA.

I. Background

A. Factual Background

SF, the victim in this case, held a birthday party

at her apartment for ZM, a fellow servicemember. SF

invited HC, also a servicemember, to the party, and

HC in turn invited Appellant. MM, a civilian, was also

present. During the party, SF became intoxicated.

After the party, Appellant, ZM, and MM stayed in SF’s

house. HC left but came back after SF told her she

didn’t want Appellant at her house.

When HC came back to SF’s apartment, HC asked

SF if she was okay with Appellant being there, at

which time SF at first did not answer, but then

mumbled something to the effect that it was okay.

After HC also talked to Appellant, who said he would

be leaving within half an hour, HC left the apartment

again.

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After HC left the house, SF was feeling “super

woozy” and “really tired.” SF lay down on her bed, and

at that time, MM was also on her bed. After SF fell

asleep, MM moved to sleep in another room. Later, SF

woke up to Appellant penetrating her vulva with his

penis. At trial, SF testified that in the moment she

was awake, she did not consent to this. After SF woke

up, Appellant pulled up SF’s pants and went to the

bathroom. After Appellant came out of the bathroom,

SF went into the bathroom to call her friend ES,

another servicemember, to ask him to come over to get

Appellant out of the house. SF testified that she called

ES—“someone scary” and “a big dude”—because she

was afraid and there was no better person to kick

someone out of her apartment. After ES arrived,

Appellant left at ES’s direction.

B. Voir Dire and Panel Member Challenge

During group voir dire, CMSgt AG, a potential

panel member, revealed that he had a family member

who had been the victim of an offense similar to the

one charged in this case. During individual voir dire,

CMSgt AG disclosed that his wife had been raped

about thirty years prior to the court-martial. The

military judge asked CMSgt AG a series of questions

about the circumstances of the rape, how often he and

his wife spoke about it, and how the knowledge of

what his wife went through affected him personally.

The military judge then asked whether CMSgt AG

could be impartial despite having a wife who had been

a victim of rape, and CMSgt AG stated that he could.

The military judge asked CMSgt AG to explain, in his

own words, why he believed that he could be

impartial, and CMSgt AG said:

I think that any incident that is separate from

another incident—you know, this we’ve lived with

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for a long time and I think we’ve processed it. And I

just think—I think I can separate that incident

from basically any other incident that I might hear

of or try to assess, I guess, for lack of a better word.

He provided a similar response when asked why he

thought this would not have any impact on his

determinations if this case reached the sentencing

stage. After voir dire, trial defense counsel brought a

for-cause challenge against CMSgt AG as a panel

member for actual and implied bias. The military

judge denied this challenge on both grounds.

C. Requested Instruction, Findings, and

Sentence

Before trial, trial defense counsel requested the

following special instruction to the panel:

You have heard evidence that [SF] consumed

alcohol on the night in question and she may have

been in some state of intoxication during the alleged

sexual events at issue. You may have previously

attended sexual assault training or briefings in

which the topic of consumption of alcohol and sex

was addressed. In this sexual training or briefings,

you may have been informed that women who are

drinking or intoxicated are not capable of

consenting to sex. That is a misstatement of the

law. You are only to follow the law as I instruct you,

and not be influenced in any way by training or

briefings you may have received outside this

courtroom. That is particularly important as it is

possible the sexual assault training or briefings you

have attended were not consistent with the law. In

this case, there is no allegation that [SF] was too

intoxicated to consent to sex. You are not permitted

to consider whether she was too intoxicated to

consent to sex. That is not an issue before you.

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The military judge denied this instruction, stating

that “[t]he Court does not find the instruction as

written to be an accurate statement of the law.”

A general court-martial composed of officer and

enlisted members convicted Appellant, contrary to his

pleas, of one specification of sexual assault in violation

of Article 120, UCMJ, for “penetrating [SF’s] vulva

with his penis, without her consent.” He was acquitted

of a second specification of sexual assault in violation

of Article 120, UCMJ, for “penetrating [SF’s] vulva

with his finger, with an intent to gratify his sexual

desire, without her consent.” The military judge

sentenced Appellant to two years of confinement, a

dishonorable discharge, reduction to E-1, and

forfeiture of all pay and allowances.

II. Constitutional Challenges to Article 120,

UCMJ

The Government charged Appellant with violating

Article 120, UCMJ, without specifying a specific

subsection of that provision that Appellant violated.

The specific subsection is important because in

Mendoza, this Court rejected the government’s

argument that Article 120 creates broadly

overlapping offenses that give the government

multiple ways to charge a criminal act. 85 M.J. at 215

(holding that Article 120(b)(2)(A), UCMJ, and Article

120(b)(3)(A), UCMJ, established distinct offenses with

separate theories of liability). Based on the language

of the specification—that Appellant “commit[ted] a

sexual act upon [SF] by penetrating her vulva with his

penis, without her consent”—we agree with Appellant

that he must have been charged with violating Article

120(b)(2)(A), UCMJ. See MCM pt. IV, para. 60.e.(2)(d);

see also MCM pt. IV, para. 60.b.(2)(d) (laying out the

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elements of sexual assault without consent). As we

held in Mendoza, Article 120(b)(2)(A), UCMJ,

“criminalizes the performance of a sexual act upon a

victim who is capable of consenting but does not

consent.” 85 M.J. at 220.

Appellant makes two constitutional challenges to

his conviction: first, a facial challenge to the

constitutionality of Article 120(b)(2), UCMJ, and

second, a challenge to the constitutionality of Article

120(b)(2), UCMJ, as applied to him because the

military judge denied trial defense counsel’s proposed

limiting instruction.

A. Standards of Review

We review the constitutionality of a statute de

novo. United States v. Medina, 69 M.J. 462, 464

(C.A.A.F. 2011). To succeed in a facial challenge, an

appellant must establish that no set of circumstances

exists under which the Article would be valid. United

States v. Castillo, 74 M.J. 160, 162 (C.A.A.F. 2015);

United States v. Salerno, 481 U.S. 739, 745 (1987).3

We also review questions of statutory

interpretation de novo. United States v. Sager, 76 M.J.

158, 161 (C.A.A.F. 2017). This Court reviews a

military judge’s decision to deny a requested

3 Although this Court has endorsed the “no set of

circumstances” test from the Supreme Court’s decision in

Salerno, we acknowledge that the Supreme Court itself has

debated whether that is the correct standard for facial

challenges. See Washington State Grange v. Washington State

Republican Party, 552 U.S. 442, 449 (2008) (“While some

Members of the Court have criticized the Salerno formulation, all

agree that a facial challenge must fail where the statute has a

plainly legitimate sweep.” (citation omitted) (internal quotation

marks omitted)). Our decision in this case would be the same if

we applied the “plainly legitimate sweep” test.

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instruction for abuse of discretion, applying a threepronged test: (1) whether the requested instruction is

correct; (2) whether it is substantially covered in the

main instruction already given; and (3) whether it is

on such a vital point in the case that the failure to give

the instruction deprives the accused of a defense or

seriously impairs its effective presentation. United

States v. Carruthers, 64 M.J. 340, 345-46 (C.A.A.F.

2007). All three prongs must be satisfied for there to

be reversible error. United States v. Barnett, 71 M.J.

248, 253 (C.A.A.F. 2012).

B. Discussion

After this Court issued its decision in Mendoza, we

invited the parties in this case to file supplemental

briefs addressing the constitutionality of Article 120,

UCMJ, in light of that decision. In Appellant’s

supplemental brief, he argues that Article 120, UCMJ,

remains facially unconstitutional because Congress’s

definition of consent in Article 120(g)(7), UCMJ,

allows military judges to instruct on improper

theories of liability and allows factfinders to convict

on uncharged theories. We disagree.

In Mendoza, we held that Article 120(b)(2)(A),

UCMJ, only applies to sexual assaults upon victims

who are capable of consenting and clarified that the

government may not charge one offense under one

factual theory and then argue a different offense and

a different factual theory at trial. 85 M.J. at 220.

Thus, the government must choose which Article 120

offense it intends to charge, give the accused notice of

that choice in the charge sheet, and pursue that same

offense at trial. With the government now on notice

that Article 120(b)(2)(A), UCMJ (sexual assault

without consent), is not an umbrella offense that

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includes every other type of sexual assault in which

the victim is incapable of consenting, we believe that

there are many circumstances under which Article

120, UCMJ, can be validly applied. Accordingly,

Appellant’s facial challenge to Article 120, UCMJ,

must fail.

With respect to his as-applied challenge, Appellant

argues that the Government violated his right to due

process by arguing a different factual theory than the

one it charged, and then the military judge

exacerbated that error by denying his requested

instruction. Appellant’s argument is based on the fact

that the sexual assault began when SF was asleep, a

fact that the Government referenced repeatedly at

trial. In Appellant’s view, this case is therefore

analogous to Mendoza, because the Government

charged him with one offense—committing a sexual

act upon another without consent in violation of

Article 120(b)(2)(A), UCMJ—but obtained a

conviction by arguing a different offense at trial:

committing a sexual act upon a person who is asleep

in violation of Article 120(b)(2)(B), UCMJ.

Appellant’s argument fails because SF awoke

during the sexual assault, creating a period when

Appellant was penetrating her vulva with his penis

while she was awake and capable of consenting. This

is exactly the offense and factual theory that the

Government charged, giving Appellant sufficient

notice of what he needed to defend against. Nothing

in Congress’s definition of consent in Article 120(g)(7),

UCMJ, prohibited the Government from proving

that—at least for a brief time after SF awoke—

Appellant committed the charged sexual act upon SF

and that SF did not consent to that act.

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This remains true even though the military judge

denied trial defense counsel’s request for a tailored

instruction. Had the military judge instructed the

panel as trial defense counsel requested, the panel

would have been instructed that they were “not

permitted to consider whether she was too intoxicated

to consent to sex.” But that instruction is not an

accurate statement of the law. When an accused is

charged with a violation of Article 120(b)(2)(A),

UCMJ, “[n]othing in the article bars the Government

from offering evidence of an alleged victim’s

intoxication to prove the absence of consent.”

Mendoza, 85 M.J. at 222; see also Article 120(g)(7)(C)

(“All the surrounding circumstances are to be

considered in determining whether a person gave

consent.”). To be clear, in Mendoza, we prohibited the

government from proving the absence of consent by

“merely establishing that the victim was too

intoxicated to consent.” 85 M.J. at 222. But here, the

proposed instruction would have foreclosed the panel

from even considering the extent of the victim’s

intoxication, and neither Article 120, UCMJ, nor our

case law endorses that result. Because the proposed

instruction fails the first prong of the Carruthers test,

64 M.J. at 346, the military judge did not abuse his

discretion in denying the instruction.4

III. Legal Sufficiency Analysis

A. Standard of Review

We review the question whether a conviction was

legally sufficient de novo. United States v. King, 78

M.J. 218, 221 (C.A.A.F. 2019). “The test for legal

4 Because all three prongs must be satisfied in order for this

Court to find reversible error, the Court need not address the

other two prongs. Barnett, 71 M.J. at 253.

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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.” Id.

(internal quotation marks omitted) (quoting United

States v. Gutierrez, 73 M.J. 172, 175 (C.A.A.F. 2014)).

B. Discussion

In this case, to establish that Appellant violated

Article 120(b)(2)(A), UCMJ, the Government was

required to prove: (1) that the accused committed a

sexual act upon the victim, and (2) that the victim did

not consent to that sexual act. MCM para.

60(b)(2)(d)(i)-(ii). Consistent with our decision in

Mendoza, 85 M.J. at 220, because Article 120(b)(2)(B),

UCMJ, establishes a separate offense for committing

a sexual act upon a person who is asleep, the

Government could not prove lack of consent by

establishing that the victim was asleep at the time of

the act. However, viewing the evidence presented at

trial in the light most favorable to the Government,

we conclude that a rational trier of fact could have

found that the Government established the Article

120(b)(2)(A) offense beyond a reasonable doubt.

SF testified that, before she fell asleep, she felt

“super woozy” and sick to her stomach. Feeling as

though she couldn’t keep her eyes open, she lay down

on her bed next to MM. SF testified that before falling

asleep, she never told Appellant—who at that time

was sitting on the couch—that he could pull down her

pants or penetrate her vulva. SF further testified that

she woke up to Appellant’s penis in her vagina. SF

stated that she did nothing to reciprocate Appellant’s

actions, that she did not want him to be penetrating

her, and that she did not consent to it. SF recalled

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Appellant getting up off of her, pulling up her pants,

and going to the bathroom. SF testified that she

“wanted to get up and run away,” that she was afraid,

and that she went into the bathroom to call her “big”

and “scary” friend so that he would kick Appellant out

of her apartment.

Critically, SF’s testimony establishes that she was

awake and aware of what was happening for at least

a short time when Appellant was penetrating her, as

alleged in the specification. During that period, the

evidence supports the rational conclusion that SF had

the capacity to consent, but that she did not consent

to the sexual act. Accordingly, a rational trier of fact

could have found the essential elements of the Article

120(b)(2)(A) offense beyond a reasonable doubt.

IV. Panel Member Challenge

A. Standard of Review

Article 41(a)(1), UCMJ, 10 U.S.C. § 841(a)(1)

(2018), provides that “[t]he military judge and

members of a general or special court-martial may be

challenged by the accused or the trial counsel for

cause stated to the court.” This Court reviews a

military judge’s decision to reject a challenge made on

actual bias grounds for abuse of discretion. United

States v. Hennis, 79 M.J. 370, 384 (C.A.A.F. 2020).

Our review of implied bias challenges, in contrast, is

“less deferential than abuse of discretion, but more

deferential than de novo review.” United States v.

Keago, 84 M.J. 367, 372 (C.A.A.F. 2024) (citation

omitted) (internal quotation marks omitted).5 This is

5 Appellant has invited this Court to disregard its current

standard for reviewing implied bias challenges and instead

review military judges’ denials of implied bias challenges de

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because while “[a]ctual bias is defined as ‘bias in

fact,’ ” Hennis, 79 M.J. at 384 (citation omitted), “the

test for implied bias is an objective one that is only

partially based on the military judge’s credibility

determinations and findings of fact,” Keago, 84 M.J. at

372. As this Court explained in Keago:

A military judge who cites the correct law and

explains his implied bias reasoning on the record

will receive greater deference (closer to the abuse of

discretion standard), while a military judge who

fails to do so will receive less deference (closer to the

de novo standard). Accordingly, the more reasoning

military judges provide, the more deference they

will receive.

Id. at 373 (citing United States v. Rogers, 75 M.J. 270,

273 (C.A.A.F. 2016)). If a military judge finds an

implied bias challenge to be a close question, the

challenge must be granted under this Court’s “liberal

grant mandate.” Id. at 372 (citing United States v.

Peters, 74 M.J. 31, 33 (C.A.A.F. 2015)).

B. Discussion

Appellant argues that CMSgt AG could not serve

as an impartial panel member in a sexual assault case

(and the public would reasonably doubt his

impartiality) because his wife was the victim of a rape

about thirty years earlier. This particular concern—

that a member’s exposure to a crime similar to the one

to be litigated before them will cause the member to

be (or appear to be) biased—is an issue that this Court

has addressed many times. See United States v. Terry,

64 M.J. 295, 303-04 (C.A.A.F. 2007) (collecting cases).

Two key principles we have recognized in these cases

novo. Brief for Appellant at 45, United States v. Casillas, No. 240089 (C.A.A.F. July 22, 2024). We decline his invitation.

15a

are that: (1) the fact that a member was close to

someone who had been a victim of a similar crime is

not grounds for per se disqualification; and (2)

regardless of a member’s prior exposure to a crime, it

is often possible for a member to rehabilitate himself

before the military judge by honestly claiming that he

would not be biased. Id. at 303.

CMSgt AG’s situation in this case is very similar

to the one presented to this Court in Terry. There,

potential panel member Maj H’s wife had been

sexually assaulted as a teenager between ten and

twenty years before the court-martial and before Maj

H and his wife had ever met. 64 M.J. at 304. Maj H

and his wife had discussed the event only a few times,

and not in the past five years. Id. at 303-04. In the

absence of any exacerbating circumstances—such as a

particularly violent or traumatic crime—the Court

held that the military judge did not abuse his

discretion in finding no actual bias. Id. Similarly, the

Court concluded that there were “a number of factors

in Maj H’s situation that tend[ed] to ameliorate his

exposure to the crime, dispelling the appearance of

implied bias.” Id. at 304.

Here, CMSgt AG’s wife had been a rape victim

thirty years prior to the trial, a longer time period in

comparison to the panel member’s wife in Terry. As in

Terry, CMSgt AG and his wife discussed the incident

very rarely, only two or three times over three

decades. CMSgt AG explained why he thought he

could be an impartial panel member and stated that

he would not have a problem telling his wife if the

panel were to find the defendant not guilty.

The military judge observed CMSgt AG’s body

language and demeanor during voir dire and rejected

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defense counsel’s suggestion that they indicated that

CMSgt AG was excessively emotionally impacted by

his wife’s rape or was being less than truthful in his

voir dire responses. To the contrary, the military judge

found CMSgt AG’s body language and demeanor to be

“clearly indicative of his thoughtfulness of the

questions asked [and] his desire to answer them as

candidly as possible.” Based on CMSgt AG’s “candid

and credible” responses, the military judge found that

CMSgt AG had no actual bias. The military judge

separately considered whether CMSgt AG’s

participation in the court-martial would damage the

public’s perception of fairness in the military justice

system and concluded that it would not. Even

considering the liberal grant mandate, the military

judge denied Appellant’s challenge for implied bias,

describing the question as not “a particularly close

call.”

We find nothing about CMSgt AG’s answers

during voir dire, or the circumstances of his wife’s

prior experience with sexual assault, that gives us

cause to deviate from our precedent in Terry. This is

especially true given that the military judge in this

case: (1) placed his observations of CMSgt AG’s body

language, demeanor, and credibility on the record; (2)

identified that implied bias is an objective standard;

(3) explained his reasoning on the record, including

why these circumstances would not “do damage to this

trial, in the eyes of the public in the perception of

fairness” in our system of military justice; and (4)

expressly took the liberal grant mandate into

consideration in finding that the implied bias question

was not a close call. Given that well-developed record,

we conclude that the military judge did not abuse his

discretion in denying Appellant’s challenge for actual

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bias. Furthermore, we agree with the military judge

that Appellant’s implied bias challenge was not a close

call and find it appropriate, under these

circumstances, to defer to the military judge’s denial

of Appellant’s implied bias challenge.6

V. 18 U.S.C. § 922 Challenges

The EOJ in Appellant’s case indicates that the

finding of guilty in his general court-martial subjects

him to restriction of his Second Amendment rights

under 18 U.S.C. § 922, a provision of the Gun Control

Act of 1968. Appellant argues that 18 U.S.C. § 922 is

unconstitutional as applied to him and urges this

Court to modify the EOJ to remove the § 922

indication.

In Johnson, we recently held that this Court lacks

authority to act on the § 922 indication in an

appellant’s EOJ. __ M.J. at __ (8-9) (holding that

neither Article 67(c)(1)(A), UCMJ, nor Article

67(c)(1)(B), UCMJ, gives this Court authority to act on

the § 922 indication). Accordingly, Appellant’s

constitutional challenge to 18 U.S.C. § 922 is moot.

VI. Conclusion

For the foregoing reasons, the judgment of the

United States Air Force Court of Criminal Appeals is

affirmed.

6 Appellant asserts that the military judge’s voir dire of

CMSgt AG was insufficient. However, as Appellant

acknowledges, the military judge permitted trial defense counsel

to ask additional follow-up questions to explore any inadequate

responses. Therefore, we find no error on the part of the military

judge. See United States v. Wiesen, 57 M.J. 48, 49 (C.A.A.F. 2002)

(per curiam) (citing cases) (“[T]he burden of establishing grounds

for a challenge for cause rests upon the party making the

challenge.”).

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United States Court of Appeals

for the Armed Forces

Washington, D.C.

United States,

Appellee

v.

USCA Dkt. No. 24-0089/AF

Crim.App. No. 40302

ORDER

Nikolas S.

Casillas,

Appellant

On consideration of Appellant's petition for

reconsideration of the decision issued by the Court,

__ M.J. __ (C.A.A.F. 2025), it is, by the Court, this 26th

day of September, 2025,

ORDERED:

That the petition for reconsideration is hereby

denied.

For the Court,

/s/

cc:

Malcolm H. Squires, Jr.

Clerk of the Court

The Judge Advocate General of the Navy

Appellate Defense Counsel (Castanien)

Appellate Government Counsel (Lee)

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UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

No. ACM 40302

________________________

UNITED STATES

Appellee

v.

Nikolas S. CASILLAS

Airman First Class (E-3), U.S. Air Force, Appellant

________________________

Appeal from the United States Air Force Trial

Judiciary

Decided 15 December 2023

________________________

Military Judge: Colin P. Eichenberger.

Sentence: Sentence adjudged 18 March 2022 by GCM

convened at Francis E. Warren Air Force Base,

Wyoming. Sentence entered by military judge on 8

April 2022: Dishonorable discharge, confinement for 2

years, forfeiture of all pay and allowances, and

reduction to E-1.

For Appellant: Major Spencer R. Nelson, USAF.

For Appellee: Lieutenant Colonel Thomas J. Alford,

USAF; Captain Olivia B. Hoff, USAF; Mary Ellen

Payne, Esquire.

Before JOHNSON, RICHARDSON, and WARREN,

Appellate Military Judges.

20a

Senior Judge RICHARDSON 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.

________________________

RICHARDSON, Senior Judge:

A general court-martial composed 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 military judge

sentenced Appellant to a dishonorable discharge,

confinement for two years, forfeiture of all pay and

allowances, and reduction to the grade of E-1. The

convening authority took no action on the findings or

sentence.

Appellant raises six issues on appeal, asking

whether: (1) Article 120(b)(2) and (g)(7), UCMJ, 10

U.S.C. § 920(b)(2), (g)(7), are unconstitutionally vague

because they fail to put defendants on fair notice of

the specific charge against them; (2) as applied,

Article 120(b)(2) and (g)(7), UCMJ, did not give

Appellant fair notice when the military judge denied

1 Unless otherwise noted, all references in this opinion to the

UCMJ, Military Rules of Evidence, and Rules for Courts-Martial

are to the Manual for Courts-Martial, United States (2019 ed.).

2 Appellant was acquitted of a second specification of sexual

assault.

21a

trial defense counsel’s request for a tailored jury

instruction; (3) the military judge abused his

discretion when (a) he ruled that the declarantwitness can state what the effect on the listener was,

instead of the listener themselves, (b) the statement

was character evidence that Appellant “wasn’t a good

person,” and (c) he did not conduct a Mil. R. Evid. 403

balancing test; (4) the military judge abused his

discretion when he denied Appellant’s challenge for

cause of a court member for actual and implied bias;

(5) relief is required to correct the staff judge

advocate’s indorsement to the Statement of Trial

Results that states a firearm prohibition was

triggered;3 and (6) whether Appellant’s convictions

are legally and factually insufficient.4 We have

carefully considered issues (1), (2), and (5) and find

they do not require discussion or warrant 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)). We find no error materially prejudicial

to Appellant’s substantial rights, and we affirm the

findings and sentence.

3 Appellant phrases this assignment of error as follows:

The [G]overnment cannot prove 18 U.S.C. § 922 is

constitutional by “demonstrating that it is consistent

with the nation’s historical tradition of firearm

regulation” when [Appellant] was convicted of a

nonviolent offense and this court can decide that

question under United States v. Lemire, 82 M.J. 263

(C.A.A.F. 2022) [(mem.)] or United States v. Lepore, 81

M.J. 759 (A.F. Ct. Crim. App. 2021).

4 Raised pursuant to United States v. Grostefon, 12 M.J. 431

(C.M.A. 1982).

22a

I. BACKGROUND

The victim in this case, SF, hosted a birthday party

at her off-base apartment for a fellow Airman.5

Through a mutual friend, SF invited HC, who in turn

invited Appellant. During the party, SF became

intoxicated from alcohol. She also showed romantic

interest in Appellant. After the party ended,

Appellant, a civilian female MM, and SF stayed at

SF’s apartment to sleep. SF was feeling “super woozy,”

and “really tired.” She changed into shorts and a tshirt, and went to sleep on her bed, along with MM.

SF testified that she awoke to Appellant penetrating

her vulva with his penis. Appellant pulled up SF’s

shorts and walked to the bathroom. MM was asleep in

another room, having moved at some point before the

assault.

After HC left the party but before the sexual

assault, she communicated with both SF and

Appellant. HC went to SF’s house because SF told her

on the phone “she no longer wanted [Appellant] to stay

at her house.” After she arrived, HC asked SF “if she

was okay with [Appellant] staying at her house.” At

first SF did not answer, then—with her eyes closed—

she mumbled something to the effect that it was okay.

Before she left, HC talked to Appellant, who assured

her he would be leaving within 30 minutes.

After the sexual assault, SF texted her friend ES,

and asked him to come over to get Appellant out of the

house. SF and Appellant interacted until ES arrived,

then Appellant left. SF “was shaking” and told ES she

“didn’t want to stay there anymore.” SF woke MM,

The victim and, except where indicated, the witnesses were

active-duty Airmen at the time of the offense.

5

23a

and they left with ES to go to his house. HC later

joined them.

II. DISCUSSION

A. Challenge for Cause

Appellant asserts the military judge abused his

discretion in this case when he denied Appellant’s

challenge for cause based on actual and implied bias

for a member whose wife had been “raped.” We find

the military judge did not abuse his discretion.

1. Additional Background

In group voir dire, the military judge asked, “Has

anyone, any member of your family, or anyone close to

you personally ever been the victim of any offense

similar to . . . the charged offense in this case?” Chief

Master Sergeant (CMSgt) AG and eight other court

members answered in the affirmative.

In individual voir dire by the military judge,

CMSgt AG elaborated. In 1992, his wife told him she

was a rape victim. Since then, it came up in

conversation no more than two or three times. When

asked whether this affected him personally, he said,

“I don’t know that it necessarily affected me

personally other than feeling bad for her and what she

went through and trying to understand that.” The

military judge asked CMSgt AG several questions

about what he thinks:

Q. Do you think that knowledge of what your

wife went through, your knowledge of that

matter might impact your ability to be a fair

and impartial panel member in a case that

involves an allegation of sexual assault?”

A. I think I can be impartial, Your Honor.

24a

....

Q. Why do you think, even though you’re aware

of what happened with your wife, you can kind

of set that aside and you can be a fair and

impartial panel member in this case?

A. So, I think that any incident that is separate

from another incident—you know, this we’ve

lived with for a long time and I think we’ve

processed it. And I just think—I think I can

separate that incident from basically any other

incident that I might hear of or try to assess, I

guess, for lack of a better word.

....

Q. If you remained as a panel member in this

case, after the presentation of evidence, you

know, you honestly kind of thought, you know,

the [G]overnment hasn’t really met their

burden, “I think the right outcome here is a

finding of not guilty.” Do you think you’d have

any difficulty disclosing that to your wife or

letting her know that ultimately the decision

reached was a not guilty verdict?

A. I don’t think I’d have a problem with that.

....

Q. And, again, just similar, just kind of a broad,

wide question. If you got to sentencing, why

don’t you think this wouldn’t have any impact

on your sentencing determinations?

A. So, again, I just think that I can separate

different cases—I shouldn’t say that because it

wasn’t a case before, but different incidents. I

25a

don’t think I have a much better answer than

that.

(Emphasis added). CMSgt AG then affirmed he could

separate his wife’s incident from the incident alleged

at trial, he could base his decisions on evidence and

not personal experiences, he could follow the law, and

he believed he could give Appellant a full, fair, and

impartial hearing.

After the military judge concluded his questions

for CMSgt AG, trial defense counsel questioned

CMSgt AG:

Q. A few follow-up questions for you. You

mentioned that when asked if you thought this

could impact—a finding of not guilty would

impact your wife and your relationship in any

way. You said, “I think it wouldn’t impact.”

Why did you use “I think”?

A. Well, yeah, I hate to assume anything, how

she might feel, but—so, if I may, not to give too

long of an answer, but she’s a social worker; so

I know she—she deals with these—you know,

kind of sensitive issues, if you will. So, I just—

I think our relationship, you know, that—that

it just wouldn’t—I know I said “I think.” I

didn’t—I guess I didn’t really focus on the word

I was using. I know words mean things. So

that’s interesting that I said “I think.” I just—

You never know, right, when you’re talking

about [a] relationship with somebody else on

what they might think, what they might—how

they might act. I just don’t want to assume

that—that it won’t affect her, that she won’t

have a different reaction than what I’m

thinking.

26a

Q. And I just noticed a little bit of hesitation.

A. Right.

Q. Is that you thinking of an answer or is there

an emotional response there?

A. I think I’m thinking of the answer because

that was an interesting point that you brought

up. So I think I’m just thinking through the

question and the answer, not necessarily

emotional.

Trial defense counsel challenged CMSgt AG for

actual and implied bias. Trial defense counsel argued

that after CMSgt AG was asked whether “a finding of

guilty [would] impact his relationship with his wife,”

he took “an extremely long pause to answer that

question.” Trial defense counsel disputed that CMSgt

AG was “simply . . . thinking about the answer to the

question, it genuinely seemed like a concerned

hesitation.” Trial defense counsel continued, CMSgt

AG was “unable to answer for his wife, he didn’t know

how she was going to react if she found out about a

finding of not guilty in this particular case.”

The military judge considered the defense

challenge for cause “based on [CMSgt AG’s] wife

having been a victim of sexual assault or rape under

both the actual bias and implied bias standards,”

considered the liberal grant mandate, and denied the

challenge. He did “not find this to be a particularly

close call.” He stated, inter alia:

Though [CMSgt AG’s] demeanor was

characterized as drastically long pauses; and,

potentially, at least in this Court’s

interpretation of counsel’s argument an

indication that he was somehow emotionally

27a

impacted or less than truthful in his responses.

The Court did not get that impression from his

responses. The pauses in his responses to

questions to this Court, they were more clearly

indicative of his thoughtfulness of the questions

asked, his desire to answer them as candidly as

possible. The Court found him and his body

language and his demeanor and his responses

to the questions posed to be candid and

credible; and to have clearly articulated, he had

no actual bias in this case.

....

When asked about the way it impacted him

personally, [CMSgt AG’s] responses, what I’d

imagine any of our responses would be, and

that is that he had feelings for his wife and

what she went through, but it didn’t affect him

personally, he just felt bad for her and trying to

understand and be supportive for her. Not an

unnatural human reaction and not one that

would demonstrate a bias on the part of an

individual

such

that

their

continued

participation would cause damage to the

perception of fairness in these proceedings.

CMSgt AG remained on the panel after the Rule

for Courts-Martial (R.C.M.) 912(f)(5) random

assignment. The Defense exercised its preemptory

challenge on a court member whom it had not

challenged for cause. CMSgt AG remained on the

panel throughout Appellant’s court-martial.6

Before cross-examination of SF, CMSgt AG informed the

military judge he thought Appellant looked familiar. The

military judge questioned CMSgt AG, who could not place how or

when he might have interacted with Appellant. CMSgt AG had

6

28a

2. Law

An accused has “the right to an impartial and

unbiased panel.” United States v. Nash, 71 M.J. 83, 88

(C.A.A.F. 2012) (citation omitted). A person detailed

to a court-martial shall be excused whenever it

appears he or she “[s]hould not sit as a member in the

interest of having the court-martial free from

substantial doubt as to legality, fairness, and

impartiality.” R.C.M. 912(f)(1)(N). “‘Substantial

doubt’ exists where the presence of a member on the

panel would cause the public to think ‘that the accused

received something less than a court of fair, impartial

members,’ injuring the public’s perception of the

fairness of the military justice system.” United States

v. Commisso, 76 M.J. 315, 323 (C.A.A.F. 2017)

(citation omitted). “The burden of establishing that

grounds for a challenge exist is upon the party making

the challenge.” R.C.M. 912(f)(3).

Potential court-martial members are subject to

challenges for cause under actual bias and implied

bias theories. United States v. Hennis, 79 M.J. 370,

384 (C.A.A.F. 2020). Under the former, the question is

whether the member personally holds a bias “which

will not yield to the military judge’s instructions and

the evidence presented at trial.” Nash, 71 M.J. at 88

(citation omitted). Claims that a military judge erred

with respect to challenges alleging actual bias are

reviewed for an abuse of discretion. Hennis, 79 M.J. at

384.

Implied bias is measured by an objective standard.

United States v. Bagstad, 68 M.J. 460, 462 (C.A.A.F.

no negative memory of Appellant, and thought it was a positive

experience. Thereafter, neither party desired to question or

challenge CMSgt AG.

29a

2010) (citation omitted). “Implied bias exists when,

‘regardless of an individual member’s disclaimer of

bias, most people in the same position would be

prejudiced [that is, biased].’” United States v. Briggs,

64 M.J. 285, 286 (C.A.A.F. 2007) (alteration in

original) (quoting United States v. Napolitano, 53 M.J.

162, 167 (C.A.A.F. 2000)). We assess implied bias

based on the “totality of the factual circumstances,”

assuming the “hypothetical ‘public’” is familiar with

the military justice system. Bagstad, 68 M.J. at 462

(citations omitted).

We review the military judge’s ruling on a claim of

implied bias “pursuant to a standard that is ‘less

deferential than abuse of discretion, but more

deferential than de novo review.’” United States v.

Dockery, 76 M.J. 91, 96 (C.A.A.F. 2017) (quoting

United States v. Peters, 74 M.J. 31, 33 (C.A.A.F.

2015)). This standard is appropriate “in light of the

fact that resolving claims of implied bias involves

questions of fact and demeanor, not just law.” United

States v. Woods, 74 M.J. 238, 243 n.1 (C.A.A.F. 2015).

Appellate courts afford greater deference to a military

judge’s ruling on a challenge for implied bias where

the military judge puts his analysis on the record and

provides a “clear signal” he applied the correct law.

United States v. Rogers, 75 M.J. 270, 273 (C.A.A.F.

2016) (citations omitted). “In cases where less

deference is accorded, the analysis logically moves

more towards a de novo standard of review.” Id.

“The military judge is [ ] mandated to err on the

side of granting a challenge[; t]his is what is meant by

the liberal grant mandate.” Peters, 74 M.J. at 34

(citation omitted). That is, “if after weighing the

arguments for the implied bias challenge the military

judge finds it a close question, the challenge should be

30a

granted.” Id. Military judges who squarely address

the liberal grant mandate on the record are given

greater deference on appeal than those who do not.

United States v. Clay, 64 M.J. 274, 277 (C.A.A.F.

2007).

“[A] prior connection to a crime similar to the one

being tried before the court-martial is not per se

disqualifying to a member’s service.” United States v.

Terry, 64 M.J. 295, 297 (C.A.A.F. 2007) (upholding

military judge’s determination of no actual or implied

bias where court member’s wife had been sexually

abused before they met, and rarely discussed it).

3. Analysis

Appellant first faults the military judge by

claiming “his voir dire was insufficient.” He lists

numerous questions that went unasked, the answer to

which “would have provided valuable information for

[d]efense [c]ounsel to make a challenge and for the

[m]ilitary [j]udge to rule on the decision.” Appellant

concedes that the military judge “permitted counsel to

ask additional questions when he was finished.” We

reject Appellant’s claim of error. As this court has

stated, “Appellant had the burden of establishing the

basis for his challenge, not the military judge,” and “it

is up to the parties to obtain the information from the

members to support their respective positions.”

United States v. Covitz, No. ACM 40193, 2022 CCA

LEXIS 563, at *36 (A.F. Ct. Crim. App. 30 Sep. 2022)

(unpub. op.) (first citing R.C.M. 912(f)(3); then citing

United States v. Wiesen, 57 M.J. 48, 49 (C.A.A.F. 2002)

(per curiam); and then citing United States v. Mayo,

No. ARMY 20140901, 2017 CCA LEXIS 239, at *7–8

(A. Ct. Crim. App. 7 Apr. 2017) (mem.)).

31a

Appellant asserts the “perhaps most glaring

deficiency that the [m]ilitary [j]udge let stand” is

CMSgt AG’s pauses and answers caveated with the

word “think.” We give deference to the military judge’s

conclusions from CMSgt AG’s demeanor, which he

attributed to “thoughtfulness” and “his desire to

answer [questions] as candidly as possible.” We do not

read CMSgt AG’s answers—as Appellant implies—to

signal that he would be influenced in his duty as a

court member because his wife was a rape victim.

Regarding word choice, it was the military judge who

asked CMSgt AG multiple questions about what he

“thinks;” CMSgt AG simply answered the questions

asked. Later when confronted with his answers,

CMSgt AG did not know why he used the word

“think,” probably because he did not remember that

was how the questions were posed to him.

Regarding implied bias, Appellant asserts:

Most members of the public in [CMSgt AG’s]

position would not want to go home to their

rape-victim-wife and tell them, “we acquitted

the accused for sexual assault charges today.”

While not wanting to overgeneralize or

stereotype, it is not difficult to imagine that

most women who had been forcibly raped would

not appreciate hearing that from their

husband.

We think it much more likely that a member of the

public, including one who had been forcibly raped,

would want a court-martial to convict the guilty and

acquit the innocent, regardless of the crime alleged.

We agree with the military judge’s conclusions that

CMSgt AG’s understanding and support for his wife

was “[n]ot an unnatural human reaction and not one

32a

that would demonstrate a bias on the part of an

individual such that their continued participation

would cause damage to the perception of fairness in

these proceedings.”

The military judge did not abuse his discretion in

denying the challenge for actual bias or implied bias.

CMSgt AG’s continued presence as a court member

would not have caused the public to perceive

Appellant’s panel as less than fair and impartial.

B. Objection to Witness Testimony

1. Additional Background

After the sexual assault, SF texted HC, stating

“Your friend is not a good guy.” HC saw the text later

in the morning, and contacted SF. HC then met up

with SF and ES at the latter’s house.

During its direct examination of SF, the

Government tried to elicit from her the substance of

her text to HC. The Defense objected to it on hearsay

grounds. The military judge held a session outside the

presence of the members to consider the matter. The

Government argued the text showed SF’s state of

mind, or present-sense impression, or was an exited

utterance, and thus was an exception to the hearsay

rule. The Defense stated it was just SF’s opinion of

Appellant. The military judge sustained the Defense’s

hearsay objection.

The Government then asserted it wanted to elicit

the statement as “effect on the listener.” The

Government averred that it expected HC to testify

that this text “played into her” meeting with SF that

morning. The Defense objected, asserting SF could not

attest to the effect on the listener. The Government

questioned SF on this point:

33a

Q. [SF], did you receive a phone call from [HC]

after that text message at some point that

morning?

A. Yes, sir.

Q. And did that phone call—the substance of

that phone call, the nature of that phone call

relate to the message, as you understand, relate

to the message you sent?

A. Yes, sir.

As the military judge overruled Defense’s objection to

SF testifying about the text she sent HC, he informed

the parties of the limiting instruction he planned to

give the members about the substance of the text.

Neither party objected.

SF continued her testimony before the members.

She testified she communicated in the text message to

HC, “That [Appellant] wasn’t a good person.”

Immediately following, the military judge instructed

the members substantially as he had told the parties,

stating, “The statement the witness just testified to is

being offered [ ] not for the truth of the matters

contained in the prior statement. In other words, you

can only consider it for its effect on any listener of that

statement, not for the truth of the contents of the

statement.” Each member affirmed they understood

the instruction.

HC testified that one message from SF “said that

my friend was not a good guy.” HC replied to this

message about 10–15 minutes later, asking SF what

happened. HC received another message from SF, and

in response, went to ES’s house, where SF had gone

that morning.

34a

2. Law

Appellate courts review “a military judge’s decision

to admit or exclude evidence for an abuse of

discretion.” United States v. Clayton, 67 M.J. 283, 286

(C.A.A.F. 2009) (citing United States v. Datz, 61 M.J.

37, 42 (C.A.A.F. 2005)). We will find an abuse of

discretion when a military judge’s “findings of fact are

clearly erroneous, the court’s decision is influenced by

an erroneous view of the law, or the military judge’s

decision on the issue at hand is outside the range of

choices reasonably arising from the applicable facts

and the law.” United States v. Ayala, 81 M.J. 25, 27–

28 (C.A.A.F. 2021) (quoting United States v. Frost, 79

M.J. 104, 109 (C.A.A.F. 2019)).

“As a general rule, hearsay, defined as an out of

court statement offered into evidence to prove the

truth of the matter asserted, is not admissible in

courts-martial.” Ayala, 81 M.J. at 28 (first citing Mil.

R. Evid. 801(c); and then citing Mil. R. Evid. 802).

“[O]ut-of-court statements offered for other purposes,

such as their effect on the listener to provide context,

may be admitted as nonhearsay statements.” United

States v. Leach, No. ACM 39805 (f rev), 2022 CCA

LEXIS 76, at *15–16 (A.F. Ct. Crim. App. 3 Feb. 2022)

(unpub. op.) (citing United States v. Dupree, 706 F.3d

131, 136 (2d Cir. 2013) (interpreting Fed. R. Evid.

801(c)(2), a provision identical to Mil. R. Evid.

801(c)(2)) (additional citation omitted), rev. denied, 82

M.J. 355 (C.A.A.F. 2022). After allowing an outofcourt statement offered for another purpose, the

military judge should instruct the members

accordingly so that the evidence “is not transformed

from evidence introduced for the limited purpose . . .

into substantive evidence introduced for the purpose

of establishing a truth of the matter.” United States v.

35a

Lusk, 70 M.J. 278, 281–82 (C.A.A.F. 2011) (citations

omitted). Court members are presumed to follow the

limiting instructions of the military judge absent

evidence to the contrary. United States v. Taylor, 53

M.J. 195, 198–200 (C.A.A.F. 2000) (citations omitted).

“Evidence is relevant if (a) it has any tendency to

make a fact more or less probable that it would be

without the evidence; and (b) the fact is of

consequence in determining the issue.” Mil. R. Evid.

401. “The military judge may exclude relevant

evidence if its probative value is substantially

outweighed by a danger of one or more of the

following: unfair prejudice, confusing the issues,

misleading the members, undue delay, wasting time,

or needlessly presenting cumulative evidence.” Mil. R.

Evid. 403.

“Evidence of a person’s character or character trait

is not admissible to prove that on a particular occasion

the person acted in accordance with the character or

trait.” Mil. R. Evid. 404(a)(1).

3. Analysis

Appellant asserts the military judge abused his

discretion by allowing SF to repeat the words of a

message she sent HC: “Your friend is not a good guy.”

In his assignment of error, Appellant claims the

military judge abused his discretion when (a) “he

ruled that the declarant-witness [SF] can state what

the effect on the listener was, instead of the listener

[HC] themselves;” (b) he allowed the statement which

“was character evidence that [Appellant] ‘wasn’t a

good person;’” and (c) he “did not conduct a Mil. R.

Evid. 403 balancing test.”

First, we cannot agree with Appellant’s

characterization of assertion (a). The military judge

36a

did not rule that SF could testify to the effect on the

listener instead of HC. He allowed SF to testify that

she sent those words about Appellant to HC, and to

testify that HC contacted her afterwards regarding

SF’s interactions with Appellant. After an overruled

defense objection on the grounds of “asked and

answered,” HC testified about the contents of this

message. She also testified about her actions with

respect to SF and Appellant that morning. We decline

Appellant’s suggestion to adopt a rule that someone

other than the listener cannot provide relevant

testimony about the effect the words had on the

listener. Cf. United States v. Roberson, 65 M.J. 43, 46–

47 (C.A.A.F. 2007) (finding an abuse of discretion

where the military judge excluded a witness’s opinion

of the effect the witness’s statement had upon the

appellant).

Appellant makes a related claim: SF was

speculating about the effect the statement had on HC.

We find little support for this claim in the record. SF

did not speculate that her message to HC that

Appellant “was not a good guy” caused HC to act a

certain way. SF testified she made this and other

statements to HC about Appellant that morning. Her

testimony, and the testimony of HC, showed that

these discussions led to HC checking on SF’s welfare

and learning of her sexual assault allegation.

The Government did not offer the message as

evidence of Appellant’s character, the Defense did not

object on those grounds, and the military judge did not

allow it to be considered for that purpose. The military

judge specifically limited its use “not for the truth of

the matters contained in the prior statement” but “for

its effect on any listener of that statement.” The

37a

members each affirmed they could follow the military

judge’s instruction.

HC’s interactions with SF before and after the

offense, especially as they related to Appellant, were

relevant to the charge of sexual assault; indeed, trial

defense counsel did not object to the bulk of this

testimony. While Appellant is correct that the

military judge did not conduct a Mil. R. Evid. 403

balancing test on the record, we disagree with

Appellant’s implication that such an analysis was

required on the record. Mil. R. Evid. 403 was not a

basis for the Defense’s objection to SF’s testimony

about this message. In conducting our own Mil. R.

Evid. 403 balancing test, we see little danger in a

witness who alleged sexual assault repeating a

statement she made soon after the sexual assault that

the assailant whom she barely knew was “not a good

guy.” We find the military judge did not abuse his

discretion.

C. Legal and Factual Sufficiency

1. Additional Background

While at ES’s house, SF messaged Appellant, then

talked to him on the phone. Appellant did not know

their phone conversation was recorded, or that others

were listening to the conversation. SF confronted

Appellant with her memory that she woke up to his

penis inside her; Appellant did not deny the act and

told SF he ejaculated outside her. Appellant told SF,

“[Y]ou were responsive for a little while. And after

that you just weren’t talking, weren’t moving.”

Appellant told SF he felt “terrible” and was sorry.

Appellant also said:

I drank a lot and I started kissing you on the

bed. You were kissing me back. And I just knew

38a

that I took it too far. You might have not been

completely there, and I might not have been

aware. . . . But I just knew—I don’t think I—

without making sure that you were fully there.

MM, the civilian female, recorded part of a

conversation between Appellant and HC:

[HC]: She was like just tired and you kept

tickling her?

[Appellant]: Yeah, she was out of it. I kept

f[**]king with her, like I told you.

[HC]: Yeah.

[Appellant]: I had to wake her a[**] up. But,

yeah, she was completely out of it.

During a different recorded conversation, Appellant

told HC he was not sure he penetrated SF with his

penis.

SF testified that she did not consent to Appellant

penetrating her vagina with his penis. MM opined SF

was “very truthful.” HC testified that SF’s reputation

in her unit is that she is untruthful.

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). “Our assessment of

legal and factual sufficiency is limited to the evidence

produced at trial.” United States v. Rodela, 82 M.J.

521, 525 (A.F. Ct. Crim. App. 2021) (citation omitted),

rev. denied, 82 M.J. 312 (C.A.A.F. 2022).

“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

39a

reasonable doubt.” United States v. Robinson, 77 M.J.

294, 297–98 (C.A.A.F. 2018) (citation omitted). “[T]he

term ‘reasonable doubt’ does not mean that the

evidence must be free from any conflict . . . .” United

States v. King, 78 M.J. 218, 221 (C.A.A.F. 2019)

(citation omitted). In 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. Bright, 66 M.J. 359, 365

(C.A.A.F. 2008) (internal quotation marks and

citation omitted). The evidence supporting a

conviction can be direct or circumstantial. See United

States v. Long, 81 M.J. 362, 368 (C.A.A.F. 2021) (citing

R.C.M. 918(c)) (additional citation omitted). “[A]

rational factfinder[ ] could use his ‘experience with

people and events in weighing the probabilities’ to

infer beyond a reasonable doubt” that an element was

proven. Id. at 369 (quoting Holland v. United States,

348 U.S. 121, 140 (1954)). The “standard for legal

sufficiency involves a very low threshold to sustain a

conviction.” King, 78 M.J. at 221 (internal quotation

marks and citation omitted).

“The test for factual sufficiency is ‘whether, after

weighing the evidence in the record of trial and

making allowances for not having personally observed

the witnesses, [we are] convinced of the [appellant]’s

guilt beyond a reasonable doubt.’” Rodela, 82 M.J. at

525 (second alteration in original) (quoting United

States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987)). “In

conducting this unique appellate role, we take ‘a fresh,

impartial look at the evidence,’ applying ‘neither a

presumption of innocence nor a presumption of guilt’

to ‘make [our] own independent determination as to

whether the evidence constitutes proof of each

required element beyond a reasonable doubt.’” United

40a

States v. Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim.

App. 2017) (alteration in original) (quoting

Washington, 57 M.J. at 399), aff’d, 77 M.J. 289

(C.A.A.F. 2018).

To convict Appellant of sexual assault, the

Government was required to prove the following

elements beyond a reasonable doubt that: (1)

Appellant committed a sexual act upon SF,

specifically by penetrating her vagina with his penis,

and (2) Appellant did so without the consent of SF. See

10 U.S.C. § 920(b)(2); Manual for Courts-Martial,

United States (2019 ed.), pt. IV, ¶ 60.b.(2)(d).

3. Analysis

Appellant personally asserts the findings of guilty

to the charge and specification are legally insufficient

because (1) SF was blacked out, and not passed out,

and misinterpreted a consensual interaction as

nonconsensual; (2) SF did not remember what

happened or she was not testifying truthfully; (3) SF

did not want to report the incident; (4) after the

incident, SF allowed Appellant to rub her back, and

SF did not leave the apartment or call the police; and

(5) at least one witness testified that SF had a

reputation for being untruthful. We are unpersuaded.

A rational finder of fact easily could have found the

Government proved each element of each offense

beyond

a

reasonable

doubt.

Importantly,

corroboration of a witness’s testimony is not required

for legal sufficiency. See United States v. RodriguezRivera, 63 M.J. 372, 383 (C.A.A.F. 2006) (“The

testimony of only one witness may be enough . . . so

long as the members find that the witness’s testimony

is relevant and is sufficiently credible.” (Citations

omitted)). SF credibly testified that she woke to

41a

Appellant’s penis inside her vagina, and that she did

not consent to that sexual act. Moreover, when SF

confronted Appellant later that day, Appellant

admitted to SF that the act occurred, and that at some

point during the encounter she was no longer

responsive. Appellant did not claim that he got SF’s

consent for the sexual act. See United States v.

McDonald, 78 M.J. 376, 381 (C.A.A.F. 2019) (“The

burden is on the actor to obtain consent, rather than

the victim to manifest a lack of consent.”).

We conclude that, viewing the evidence produced

at trial in the light most favorable to the Prosecution,

a rational trier of fact could have found the essential

elements of the convicted offense beyond a reasonable

doubt. See Robinson, 77 M.J. at 297−98. Furthermore,

after weighing the evidence in the record of trial and

making allowances for not having personally observed

the witnesses, we are ourselves convinced of

Appellant’s guilt beyond a reasonable doubt. See

Rodela, 82 M.J. at 525.

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

CAROL K. JOYCE

Clerk of the Court

42a

This opinion is subject to revision before publication.

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

UNITED STATES

Appellee

v.

Devin W. JOHNSON, Specialist 3

United States Space Force, Appellant

No. 24-0004

Crim. App. No. 40257

Argued January 29, 2025—Decided June 24, 2025

Military Judge: Charles G. Warren

For Appellant: Captain Samantha M. Castanien,

USAF (argued); Lieutenant Colonel Allen S. Abrams,

USAF, and Major Spencer R. Nelson, USAF.

For Appellee: Captain Tyler L. Washburn, USAF

(argued); Colonel Matthew D. Talcott, USAF,

Lieutenant Colonel Jenny A. Liabenow, USAF, and

Mary Ellen Payne, Esq. (on brief); Colonel Steven R.

Kaufman, USAF, Lieutenant Colonel James P.

Ferrell, USAF, and Captain Kate E. Lee, USAF.

43a

Judge HARDY delivered the opinion of the Court, in

which Chief Judge OHLSON, Judge SPARKS, and

Judge MAGGS joined. Judge JOHNSON filed a

separate opinion concurring in part and in the

judgment.

_______________

Judge HARDY delivered the opinion of the Court.

A general court-martial convicted Appellant of one

specification of abusive sexual contact in violation of

Article 120, Uniform Code of Military Justice (UCMJ),

10 U.S.C. § 920 (2018). On the indorsement of this

case’s entry of judgment, the staff judge advocate

(SJA) indicated “Firearm Prohibition Triggered

Under 18 U.S.C. § 922: Yes” [hereinafter the “§ 922

indication”]. Appellant petitioned for this Court to

review whether this indication should be modified on

constitutional grounds, though he now argues that

this Court should remand the case to the United

States Air Force Court of Criminal Appeals (AFCCA)

for that tribunal to act upon the § 922 indication first.

For the reasons set forth below, we hold that this

Court lacks authority to act upon a § 922 indication

because no Court of Criminal Appeals has the

authority to act upon that indication in the first

instance. We also hold that remanding for the AFCCA

to address the indication would be futile in this or any

other case, because the very reason that this Court

lacks authority to act upon the indication is that the

AFCCA itself also lacks authority to act upon it.

I. Background

The Gun Control Act of 1968 prohibits specific

categories of people, such as felons and fugitives from

justice, from receiving or possessing firearms. Pub. L.

44a

No. 90-618, 82 Stat. 1213 (relevant subsections

codified as amended at 18 U.S.C. § 922(a)-(g) (2018 &

Supp. IV 2019-2023). In 1996, Congress amended the

Act to impose the same restrictions on any person

“who has been convicted in any court of a

misdemeanor crime of domestic violence.” See id. at §

922(g)(9) (commonly known as the Lautenberg

Amendment). Because the federal government

maintains a database of people whose Second

Amendment rights have been restricted under the

Gun Control Act, the military reports the names of

servicemembers who are convicted by a court-martial

(of crimes that would subject them to 18 U.S.C. § 922)

to the National Instant Criminal Background Check

System. The military identifies and tracks these

servicemembers through two documents: the

Statement of Trial Results (STR) and the Entry of

Judgment (EOJ).

A. Statement of Trial Results and Entry of

Judgment

At the conclusion of a general or special courtmartial, Congress has mandated that military judges

“enter into the record of trial a document entitled

‘Statement of Trial Results.’ ” Article 60(a)(1), UCMJ,

10 U.S.C. § 860(a)(1) (2018). The STR must record

three categories of information: (1) “each plea and

finding;” (2) “the sentence, if any;” and (3) “such other

information as the President may prescribe by

regulation.” Article 60(a)(1)(A)-(C), UCMJ.

The President, in turn, has directed that the STR

shall include various information including “[a]ny

additional information directed by the military judge

or required under regulations prescribed by the

Secretary concerned.” Rule for Courts-Martial

45a

(R.C.M.) 1101(a)(6) (2019 ed.). In the Department of

the Air Force, the Secretary has directed that the STR

include an “indorsement” in which the SJA lays out

what criminal indexing will be required in accordance

with various statutory and regulatory authorities.

Dep’t of the Air Force, Instr. 51-201, Administration

of Military Justice para. 13.3.3 (Jan. 18, 2019)

[hereinafter AFI 51-201 (2019)].1 The STR in this case

included the following two indications: (1) “Firearm

Prohibition Triggered Under 18 U.S.C. § 922: Yes”;

and (2) “Domestic Violence Conviction Under 18

U.S.C. § 922(g)(9): No.” In United States v. Williams,

85 M.J. 121, 126 (C.A.A.F. 2024), this Court held that

these indications are not part of the findings or

sentence upon which the service courts have authority

to act under Article 66(d)(1)(A), UCMJ, 10 U.S.C.

§ 866(d)(1)(A).

After a court-martial, the UCMJ authorizes a

series of actions—including post-trial motions from

the parties and convening authority review—that

might alter the findings, sentence, and other

information reported in the STR. Articles 60(b), 60a,

60b, UCMJ, 10 U.S.C. §§ 860(b), 860a, 860b. After

these actions have concluded, Congress has further

mandated that “[i]n accordance with rules prescribed

by the President, in a general or special court-martial,

the military judge shall enter into the record of trial

the judgment of the court.” Article 60c(a)(1), UCMJ,

10 U.S.C. § 860c(a)(1) (2018). The EOJ must include

1 The 2019 Department of the Air Force Instruction (AFI)

applies to this case. The Air Force revised the AFI in 2024, but

the current version contains language to the same effect. See

Dep’t of the Air Force, Instr. 51-201, Administration of Military

Justice para. 20.6 (Jan. 24, 2024) [hereinafter AFI 51-201

(2024)].

46a

the original STR and “[a]ny modifications of, or

supplements to, the Statement of Trial Results by

reason of—(i) any post-trial action by the convening

authority; or (ii) any ruling, order, or other

determination of the military judge that affects a plea,

a finding, or the sentence.” Article 60c(a)(1)(B),

UCMJ.

Exercising his authority under Article 60c(a)(1),

UCMJ, the President has directed that the EOJ must

also include “[a]ny additional information that the

Secretary concerned may require by regulation.”

R.C.M. 1111(b)(3)(F). Pursuant to this direction from

the President, the Secretary of the Air Force (SECAF)

promulgated regulations governing the preparation

and distribution of the EOJ in the Department of the

Air Force. See AFI 51-201, para. 13.3.3, § 13H (2019)

(citing R.C.M. 1111 and Article 60c, UCMJ). As noted

by the SECAF, the EOJ “reflects the results of the

court-martial after all post-trial actions, rulings or

orders,” and “terminates trial proceedings and

initiates appellate proceedings.” Id. paras. 13.37 &

13.37.1.

Because post-trial actions by a military judge or a

convening authority may alter the criminal indexing

that is required, the SECAF requires the SJA to

include as part of the EOJ a “First Indorsement.” Id.

para. 13.38.3. The indorsement indicates whether

“DNA processing is required; the accused has been

convicted of a crime of domestic violence under 18

U.S.C. 922(g)(9); criminal history record indexing is

required under DoDI 5505.11; firearm prohibitions

are triggered; and/or sex offender notification is

47a

required.” Id.2 Consistent with these regulations, the

EOJ in this case included the following indication: (1)

“Firearm Prohibition Triggered Under 18 U.S.C.

§ 922: Yes.” That indication is the primary subject of

this appeal.

B. Facts

A panel of officer members sitting as a general

court-martial convicted Appellant, contrary to his

pleas, of one specification of abusive sexual contact in

violation of Article 120, UCMJ. The panel also

acquitted Appellant of one specification of abusive

sexual contact and one specification of sexual assault,

both in violation of Article 120, UCMJ. On October 30,

2021, the panel sentenced Appellant to six months of

confinement, a bad-conduct discharge, a reprimand,

and reduction to E-1. The following events then took

place:

•

The same day—October 30, 2021—the military

judge signed the STR, and the SJA signed the

indorsement to the STR. That indorsement

included the § 922 indication.

•

About six weeks later, on December 10, 2021,

the convening authority specified what

language would be contained in Appellant’s

reprimand, without taking any action on the

findings or sentence.

•

On January 20, 2022, the military judge

ordered the reprimand language to be

corrected, replacing the words “sexual assault”

with “abusive sexual contact” to reflect the

2 For the current version of the same provision, see AFI 51-

201 (2024).

48a

specification for which Appellant had been

convicted.

•

After the military judge adjusted the

reprimand language, that same day he signed

the EOJ in Appellant’s case. The next day, the

SJA signed the indorsement to the EOJ, again

including the § 922 indication.

•

Appellant submitted his case to the AFCCA,

raising seven issues before that court. United

States v. Johnson, No. ACM 40257, 2023 CCA

LEXIS 330, at *2, 2023 WL 5112140 at *1 (A.F.

Ct. Crim. App. Aug. 9, 2023).

•

The AFCCA affirmed the findings and

sentence. Id. at *45, 2023 WL 5112140 at *16.

When Appellant petitioned this Court for review of

his case, he challenged the § 922 indication on

constitutional grounds. Based on Appellant’s petition,

and in light of this Court’s decision in Williams, we

granted review of the following three issues:

I. Whether the United States Court of

Appeals for the Armed Forces has

jurisdiction and authority to direct the

modification of the 18 U.S.C. § 922

prohibition noted on the Staff Judge

Advocate’s indorsement to the entry of

judgment.

II. Whether review by the United States

Court of Appeals for the Armed Forces of the

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

Staff Judge Advocate’s indorsement to the

entry of judgment would satisfy the Court’s

prudential case or controversy doctrines.

See B.M. v. United States, 84 M.J. 314, 317

49a

(C.A.A.F. 2024) (detailing this Court’s

prudential case and controversy doctrines).

III. As applied to Appellant, whether 18

U.S.C. § 922 is constitutional in light of

recent precedent from the Supreme Court of

the United States.

United States v. Johnson, 85 M.J. 147 (C.A.A.F. 2024)

(order granting review).

As we explain in our discussion of Issue I, this

Court lacks authority to act upon the § 922 indication.

As a result, Issues II and III are moot.

II. Standards of Review

This Court has an independent obligation to

determine that it has jurisdiction in a given case.

Williams, 85 M.J. at 124 (citing M.W. v. United States,

83 M.J. 361, 363 (C.A.A.F. 2023)). We review

questions of jurisdiction de novo. Id. (citing United

States v. Kuemmerle, 67 M.J. 141, 143 (C.A.A.F.

2009)). We also review de novo the authority of a

Court of Criminal Appeals under Article 66, UCMJ,

10 U.S.C. § 866. Id. (citing United States v. Nerad, 69

M.J. 138, 141-42 (C.A.A.F. 2010)).

III. Discussion

A. CAAF Jurisdiction and Authority to Act

The first question presented asks whether this

Court has jurisdiction and authority to direct the

modification of the § 922 indication. These are two

distinct but related questions: first, whether we have

jurisdiction over Appellant’s case, and second,

whether we have the authority to act upon the § 922

indication.

50a

Both parties agree that this Court has jurisdiction

over this case under Article 67(a)(3), UCMJ, 10 U.S.C.

§ 867(a)(3) (2018), which authorizes the Court to

review “all cases reviewed by a Court of Criminal

Appeals in which, upon petition of the accused and on

good cause shown, the Court of Appeals for the Armed

Forces has granted a review.” The AFCCA had

jurisdiction to review Appellant’s case under Article

66(b)(3), UCMJ, because Appellant was sentenced to

a bad-conduct discharge.3 The AFCCA did, in fact,

review Appellant’s case, and this Court found good

cause to grant Appellant’s petition for review.

Accordingly, we are satisfied that we have

jurisdiction.

The second question is more difficult. The extent of

this Court’s authority to act in any case is laid out in

Article 67(c)(1), UCMJ. Turning first to subsection (A)

of that provision, this Court has authority to act upon

“the findings and sentence set forth in the entry of

judgment, as affirmed or set aside as incorrect in law

by the Court of Criminal Appeals.” Article 67(c)(1)(A),

UCMJ. As we held in Williams, the indication that an

accused, by virtue of being found guilty of an offense,

is prohibited under 18 U.S.C. § 922 from carrying a

firearm is not part of the findings or sentence, so

Article 67(c)(1)(A), UCMJ, does not provide this Court

3 In the James M. Inhofe National Defense Authorization Act

for Fiscal Year 2023, Pub. L. 117-263, § 544(b)(1), 136 Stat 2395,

2582 (2022), Congress granted the Courts of Criminal Appeals

jurisdiction to review all special and general courts-martial

where there has been a guilty finding. 10 U.S.C. § 866(b)(1)(A)

(Supp. V 2019-2024) (“A Court of Criminal Appeals shall have

jurisdiction over . . . a timely appeal from the judgment of a courtmartial, entered into the record under section 860c(a) of this title

(article 60c(a)), that includes a finding of guilty . . . .”).

51a

with authority to act upon the § 922 indication. 85

M.J. at 125.4

Subsection (B), however, requires additional

discussion. That provision provides this Court with

authority to act upon “a decision, judgment, or order

by a military judge, as affirmed or set aside as

incorrect in law by the Court of Criminal Appeals.”

Article 67(c)(1)(B), UCMJ (emphasis added).

Assuming, as we did in Williams, that the EOJ

qualifies as a “judgment” by a military judge under

subsection (B), our authority to act upon the § 922

indication would still be predicated upon the AFCCA

having either affirmed or set aside the § 922 indication

in the first instance.

But under Article 66(d)(1), UCMJ, “the Court of

Criminal Appeals . . . may act only with respect to the

findings and sentence as entered into the record under

[Article 60c, UCMJ]” (emphasis added). Because, as

explained above, the § 922 indication is neither a

finding nor a sentence, even if it is part of the

judgment, it is not a part of the judgment capable of

being “affirmed or set aside as incorrect in law by the

Court of Criminal Appeals” as Article 67(c)(1)(B),

UCMJ, requires for this Court to have authority to act

upon it. Accordingly, subsection (B) also does not

4 For the same reason, although Article 67(c)(1)(C), UCMJ,

10 U.S.C. § 867(c)(1)(C) (Supp. II 2019-2021), does not apply to

this case, it too would not provide the Court with authority to act,

because although the § 922 indication is “set forth in the entry of

judgment,” it is not a “finding.” The current Article 67(c)(1)(C),

UCMJ, authorizes this Court to act upon “the findings set forth

in the entry of judgment, as affirmed, dismissed, set aside, or

modified by the Court of Criminal Appeals as incorrect in fact

under [Article 66(d)(1)(B), UCMJ].”

52a

grant this Court authority to act upon the § 922

indication.

B. Futility of Remand

Appellant also argues that this Court should give

the AFCCA the opportunity to act upon the § 922

indication under its Article 66(d)(2) error-correction

authority by sending this case back to the AFCCA for

further review. We decline Appellant’s invitation to

remand this case because we do not agree that Article

66(d)(2), UCMJ, grants the AFCCA the authority to

act as Appellant suggests.

Article 66(d)(2), UCMJ, states:

(2) ERROR OR EXCESSIVE DELAY.—In

any case before the Court of Criminal Appeals

under subsection (b), the Court may provide

appropriate relief if the accused demonstrates

error or excessive delay in the processing of the

court-martial after the judgment was entered

into the record under section 860c of this title

(article 60c).

Appellant argues that because the SJA indorsed

the EOJ on January 21, 2022, after the military judge

signed the EOJ on January 20, 2022, any error in the

SJA’s indorsement occurred after the EOJ was

entered into the record and is therefore correctable by

the CCA under Article 66(d)(2). We disagree.

Article 66(d)(2) authorizes the service courts to

correct errors that occur “after the judgment was

entered into the record under [Article 60c, UCMJ, 10

U.S.C. § 860c(a)].” Article 60c, UCMJ, requires the

military judge to enter the “judgment of the court” into

the record of trial, and further requires that the

“judgment of the court” be provided to the accused and

53a

any victim of the offense and made available to the

public.

Article 60c(a), UCMJ, authorizes the President to

prescribe rules for the preparation and distribution of

the judgment of a court-martial. Acting under that

authority, the President has directed that the EOJ

“shall consist of”—among other things—“[a]ny

additional information that the Secretary concerned

may require by regulation.” R.C.M. 1111(b)(3)(F)

(emphasis added). The relevant Department of the Air

Force regulations in this case were expressly

promulgated pursuant to R.C.M. 1111. AFI 51-201,

§ 13H (2019) (citing R.C.M. 1111). Those regulations,

which instruct the SJA to indorse the EOJ after it has

been signed by the military judge, are how the SECAF

includes “additional information” as part of the EOJ.

Accordingly, any information in the indorsement is

part of the EOJ and cannot be an “error . . . in the

processing of the court-martial after the judgment was

entered into the record” under Article 66(d)(2), UCMJ.

Appellant argues that if this Court lacks the

authority to act on the indorsement under Article

67(c)(1)(B), UCMJ, then the SJA’s indorsement must

not be part of the EOJ. We reject this argument

because it is inconsistent with our reading of Article

60c(a), UCMJ, and R.C.M. 1111, as stated above. But

furthermore, if Appellant’s assertion were true, then

it is not clear what authority—if any— would

authorize the SJA to supplement the record of trial

with an additional document after the entry of the

EOJ into the record. The Department of the Air Force

regulations cannot grant the SJA more authority than

the President has delegated to the SECAF in R.C.M.

1111. Moreover, Appellant’s interpretation of those

regulations would contradict the SECAF ’s statement

54a

that the EOJ “terminates trial proceedings and

initiates appellate proceedings.” AFI 51-201 (2019)

para. 13.37.1.

Appellant’s argument is also rebutted by the fact

that the document that was distributed to the accused

(and numerous other individuals and offices) in

accordance with Article 60c, UCMJ, was the final,

completed version of the EOJ that included the SJA

indorsement and the § 922 indication.5 In our view, it

is this version of the EOJ—rather than the January

20, 2022, version that included the military judge’s

signature but excluded the SJA’s indorsement (and

appears nowhere in the record as it exists today)—to

which Article 66(d)(2), UCMJ, refers as the document

“entered into the record under section 860c of this title

(article 60c).”6 We cannot accept the contrary

argument that the military judge fulfilled his duty to

enter the judgment of the court into the record of trial

by merely signing the EOJ, because we see no basis in

the text of Article 60(c)(a), UCMJ, for equating these

two acts or concluding that they necessarily occurred

at the same time. In sum, because the final January

21, 2022, version of the EOJ included the allegedly

erroneous § 922 indication, the alleged error did not

occur after the EOJ was entered into the record and

5 Although we reference specific documents in our discussion,

no part of this opinion should be construed as limiting the Court’s

holding to the specific facts of this case.

6 Although not necessary to our legal conclusion, it is also

worth noting that the SJA’s indorsement appears on “Page 3 of

4” of the document in the record of trial titled “ENTRY OF

JUDGMENT IN THE CASE OF United States v. Spc3 Devin W.

Johnson”). The indorsement itself is titled “Johnson 1st Ind.,

Entry of Judgment, Spc3 Devin W. Johnson, dated 21 January

2022,” and the header on that page states: “ENTRY OF

JUDGMENT IN THE CASE OF United States v. Spc3 Devin W.”

55a

was not correctable by the AFCCA under Article

66(d)(2), UCMJ.

Article 67(c), UCMJ, does not give this Court

authority to modify the § 922 indication in the EOJ,

and Article 66(d)(2), UCMJ, does not give the AFCCA

authority to modify the § 922 indication either. Given

that this Court lacks any authority to act upon the §

922 indication, we decline to answer granted

questions II and III because they are moot.7

IV. Judgment

The decision of the United States Air Force Court

of Criminal Appeals is affirmed.

7 Additionally, because we lack authority to act on the § 922

indication, Appellant’s motion to supplement the record is denied

as moot.

56a

Judge JOHNSON, concurring in part and in the

judgment.

I join Part III.A. of the Court’s opinion in

concluding this Court lacks the authority to act on the

staff judge advocate’s indication that Appellant was

prohibited from possessing firearms under 18 U.S.C.

§ 922 (2018 & Supp. IV 2019-2023) on the indorsement

to the entry of judgment (EOJ). As the Court stated,

because the § 922 indication is not a finding or a

sentence—in other words, it is a collateral

consequence of a conviction—neither the United

States Air Force Court of Criminal Appeals nor this

Court has authority to act upon it. Accordingly, I

concur in part and in the judgment. I write separately

to express my concern that under the Court’s

rationale, it is unclear when the military judge

“enter[s] into the record of trial the judgment of the

court” as required by Article 60c(a)(1), Uniform Code

of Military Justice (UCMJ), 10 U.S.C. § 860c(a)(1)

(2018). In my view, there is a basis in the text of

Article 60c and the Rules for Courts-Martial (R.C.M.)

to equate the military judge’s signature with entering

the judgment of the court into the record.

R.C.M. 1111(e)(2) (2019 ed.) dictates that where

there is a finding of guilty, the judgment “shall be

entered as soon as practicable after the staff judge

advocate or legal advisor notifies the military judge of

the convening authority’s post-trial action or decision”

in accordance with Article 60c(a)(1)(B)(i), UCMJ. The

military judge makes any final “ruling, order or other

determination” under Article 60c(a)(1)(B)(ii). Then,

R.C.M. 1111(b) requires that the judgment of the court

be “signed and dated by the military judge.” This is

important because Article 60c(a)(1), UCMJ, requires

57a

that “the military judge shall enter into the record of

trial the judgment of the court.” (Emphasis added.)

Therefore, the judgment is entered into the record

when the military judge signs it.1

The determination of when the EOJ is entered into

the record is not just an academic exercise. Congress

established the EOJ’s entry into the record of trial as

a date-certain event implicating multiple provisions

1 The civilian analogue to Article 60c, UCMJ, supports the

conclusion that it is the military judge’s signature that enters the

EOJ into the record. Article 60c was modeled on Federal Rule of

Criminal Procedure (Fed. R. Crim. P.) 32(k)(1), which provides

that “[t]he judge must sign the judgment, and the clerk must

enter it.” Compare Article 60c, UCMJ, and R.C.M. 1111(b), with

Fed. R. Crim. P. 32(k)(1); see also United States v. Wadaa, 84 M.J.

652, 654 (N-M. Ct. Crim. App. 2024). This Court has often turned

to “federal civilian counterpart[s]” in interpreting provisions of

the UCMJ. See, e.g., United States v. Badders, 82 M.J. 299, 304

(C.A.A.F. 2022).

In courts-martial, there is no clerk of court to enter a signed

judgment into a docket, so the final action before the judgment is

entered into the record is the military judge’s signature. This

accords with how the Air Force regulation states that the

indorsement “attaches to the Entry of Judgment” rather than

stating it is part of the EOJ. Dep’t of the Air Force, Instr. 51-201,

Administration of Military Justice para.13.38.3 (Jan. 18, 2019).

It not only reflects the record in this case, where the EOJ states:

“[a]s corrected by the Court, the result of the court-martial is

hereby entered into the record on 20 January 2022.” It also

reflects contemporary Department of the Air Force practice. See

AFI 51-201 para. 20.41 (Jan. 24, 2024), Feb 2024 EOJ Template

(stating directly above the military judge’s signature: “This

judgment reflects the result of the court-martial, as modified by

any post-trial actions, rulings, or orders, if any, and is hereby

entered into the record on (date)”). In addition, it also reflects the

records of the Air Force cases on this Court’s docket this term,

which identify the EOJ as being entered into the record on the

date of the military judge’s signature. See, e.g., United States v.

Arroyo, 85 M.J. 188 (C.A.A.F. 2024) (order granting review).

58a

across the UCMJ and the R.C.M. Importantly, the

Court’s decision that judgment is entered, not when

the military judge signs the EOJ but when the SJA

endorses it, could potentially set the Air Force and

Space Force apart from the other services for every

provision of the UCMJ and the R.C.M. that turns on

the timing of the EOJ,2 fracturing the very uniformity

the Uniform Code of Military Justice sought to

create.3

Because I do not find support for this

interpretation in the statute, rules, or regulations, I

concur in the judgment but decline to join the

rationale for Part III.B. of the Court’s opinion.

Only the Air Force requires an indorsement after the

military judge’s signature.

2

3 A nonexhaustive list of statutory provisions affected

includes: timeliness of Government appeals (Article 56(d)(2),

UCMJ, 10 U.S.C. § 856(d)(2) (2018)), timeliness of petitions for a

new trial (Article 73, UCMJ, 10 U.S.C. § 873 (2018)), the

timeliness of post-trial motions (Article 60(b)(2), UCMJ, 10

U.S.C. § 860(b)(2) (2018)), the timeliness of convening authority

action on certain sentences (Article 60a(a)(3), UCMJ, 10 U.S.C. §

860a(a)(3) (2018)), the timeliness of cooperation with law

enforcement (Article 60a(d)), the timing of appellate leave

(Article 76a, UCMJ, 10 U.S.C. § 870a (2018)), the effective date

of “other sentences” (Article 57(a)(6), UCMJ, 10 U.S.C. §

857(a)(6) (2018)), the deferral of sentences (Article 57(b)(1)), etc.

A variety of Manual for Courts-Martial provisions are implicated

as well.

59a

United States Court of Appeals

for the Armed Forces

Washington, D.C.

United States,

Appellee

USCA Dkt. No. 24-0004/AF

Crim.App. No. 40257

v.

ORDER

Devin W.

Johnson,

Appellant

On consideration of Appellant's petition for

reconsideration of the decision issued by the Court,

__ M.J. __ (C.A.A.F. 2025), it is, by the Court, this 14th

day of July, 2025,

ORDERED:

That the petition for reconsideration 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 (Castanien)

Appellate Government Counsel (Washburn)

60a

UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

No. ACM 40257

________________________

UNITED STATES

Appellee

v.

Devin W. JOHNSON

Specialist 3 (E-3), U.S. Space Force, Appellant

________________________

Appeal from the United States Air Force Trial

Judiciary

Decided 9 August 2023

________________________

Military Judge: Charles G. Warren.

Sentence: Sentence adjudged 30 October 2021 by GCM

convened at Schriever Space Force Base, Colorado.

Sentence entered by military judge on 20 January

2022: Bad-conduct discharge, confinement for 6

months, reduction to E-1, and reprimand.

For Appellant: Major Spencer R. Nelson, USAF;

William E. Cassara, Esquire.

For Appellee: Lieutenant Colonel Thomas J. Alford,

USAF; Lieutenant Colonel Matthew J. Neil, USAF;

Lieutenant Colonel G. Matt Osborn, USAF; Major

John P. Patera, USAF; Captain Olivia B. Hoff, USAF;

Mary Ellen Payne, Esquire.

61a

Before JOHNSON, ANNEXSTAD, and GRUEN,

Appellate Military Judges.

Senior Judge ANNEXSTAD delivered the opinion of

the court, in which Chief Judge JOHNSON and Judge

GRUEN 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:

At a general court-martial, a panel of officer

members convicted Appellant, contrary to his pleas, of

one specification of abusive sexual contact

(Specification 1 of the Charge), in violation of Article

120, Uniform Code of Military Justice (UCMJ), 10

U.S.C. § 920.1, 2 A military judge sentenced Appellant

to a bad-conduct discharge, confinement for six

months, reduction to the grade of E-1, and a

reprimand. The convening authority took no action on

the findings or sentence.

Appellant raises seven issues which we have

reordered and reworded: (1) whether Appellant’s

conviction is legally and factually sufficient; (2)

All references to the UCMJ are to the Manual for CourtsMartial, United States (2019 ed.).

1

2 Appellant was acquitted of one specification of abusive sexual

contact (Specification 2 of the Charge) and one specification of

sexual assault (Specification 3 of the Charge) in violation of

Article 120, UCMJ.

62a

whether Appellant was convicted of an offense which

he was not on notice of or charged with; (3) whether

the military judge violated the canon against

surplusage and Appellant’s due process rights by

allowing the Government to argue a different theory

of liability than charged; (4) whether Appellant’s

conviction is ambiguous; (5) whether the military

judge erred by admitting a victim impact statement;

(6) whether Appellant’s sentence is inappropriately

severe; and (7) whether Appellant’s reprimand

contained error.3

With respect to issues (4) and (7), we have carefully

considered Appellant’s contentions and find they do

not require further discussion or warrant relief. See

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

1987).4 We consolidate and consider issues (2) and (3)

together. Finding no error that materially prejudiced

a substantial right of Appellant, we affirm the

findings and sentence.

Issues (6) and (7) were raised pursuant to United States v.

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

3

4 Regarding issue (7), we find that the military judge erred when

he sua sponte changed the convening authority’s language in the

reprimand in the entry of judgment. Specifically, the military

judge changed the convening authority’s reference to “sexual

assault” in the language of the reprimand to “abusive sexual

contact,” based on the specific offense for which Appellant was

convicted. Rule for Courts-Martial 1003(b)(1) provides “[a] courtmartial shall not specify the terms or wording of a reprimand. A

reprimand if approved, shall be issued, in writing, by the

convening authority.” The Discussion also makes clear that

“[o]nly the convening authority may specify the terms of the

reprimand.” Having found error, we have reviewed for material

prejudice to a substantial right of Appellant and find none.

63a

I. BACKGROUND5

GH joined the Space Force in February 2020.

Following basic training, she attended technical

training at Vandenberg Space Force Base (SFB) in

California. There GH met Appellant for the first time.

The two had limited interaction as they were not in

the same class. On one occasion, Appellant told GH

that she was “hot and nice to look at.” GH thought the

comment was inappropriate and reported it to her

military training leadership. Appellant later

apologized.

In August 2020, GH finished technical training

and arrived at her first duty station, Schriever SFB,

Colorado. About three weeks later, she ran into

Appellant at the base computer lab. Appellant again

apologized for his earlier comment, and she accepted

his apology. She then stated that Appellant offered to

help her get settled and volunteered to help her find a

dining table, since her household goods would not

arrive for a few weeks. She accepted. That night

Appellant picked her up from her apartment, the two

had dinner, and then went shopping for a table. GH

found a table she liked but did not purchase it because

it was too expensive. Appellant then offered to buy the

table for her, but she declined his offer.

A couple of days later, on 18 September 2020, GH

and a friend, Specialist (Spc) TL, were in the base

computer lab discussing dinner plans. Spc TL told GH

that she had to cancel their dinner plans because her

kids were sick. Appellant apparently overheard the

conversation and offered to cook GH dinner at her

apartment. GH felt Appellant was just being nice, but

5 Unless otherwise noted, the facts that follow are derived from

GH’s testimony.

64a

made sure to tell Appellant her acceptance was just

“as friends.” When Appellant arrived at her

apartment around 1900 hours, he brought a rice

cooker and food to make dinner. GH did not hug or

touch him at all when he arrived. Appellant started

cooking rice and fish while they talked about GH

receiving a box of clothes. The two then decided to go

to a store while the dinner was cooking to get cookies

for dessert.

While at the store, Appellant bought cookie dough

and a 12-pack of Mike’s Hard Lemonade. GH informed

Appellant she would not permit him to “get[ ] drunk”

and stay at her apartment. She also told him she did

not want to have to drive him back to the dormitory.

GH explained, “I did not want him thinking that he

would be able to just crash at my place if he would get

drunk.” She did not plan on drinking that night

because “[she] didn’t want to drink with him around.

[She] didn’t want to drink by [her]self either, and [she]

didn’t know him that well, so [she] didn’t want

anything to come of that.” According to GH, they also

purchased menstrual pads at the store.

When they arrived back at the apartment,

Appellant finished cooking dinner while GH prepared

to bake the cookies. She testified that when she bent

over to put the cookies in the oven, she “felt a brush

against [her] butt.” She was unsure if it was a hand or

just Appellant walking by, “but to be on the safe side

[she] told him that he needed to watch himself.”

Appellant apologized to her and stated, “I’m sorry.

This is a small kitchen. I was walking by and I did not

mean to.” GH did not know if it was intentional or

unintentional.

65a

GH and Appellant ate dinner on an air mattress

because GH had turned on a movie on her laptop

plugged in nearby. After they finished eating, GH took

the cookies out of the oven and they continued

watching the movie. Appellant had begun drinking his

second drink. Appellant was on GH’s left side on the

air mattress. She said there was space between the

two and they were not touching. After dinner, GH

expected she and Appellant would finish watching the

movie, and he would go home.

GH fell asleep around 2100. She had been up since

0500 and was tired but did not intend to fall asleep.

Before she fell asleep, no hugging, touching, cuddling,

or kissing of any kind occurred between her and

Appellant. The only physical touching was when

Appellant touched her buttocks in the kitchen. While

she was asleep, GH faintly remembers laying on her

right side and her “left arm was being tugged.” She

rolled onto her back and “brought [her] hand over to

what felt like [Appellant’s] chest, and ended up falling

back asleep.”

Later, GH would be fully awoken. She explained:

I was laying on my right side, half on my

stomach, I guess. I had my arms under my

pillow, and I had my right leg straight out and

my left leg kind of bent up. I felt this pressure

and like this heat on my back that was making

me feel hot, and being on the air mattress was

uncomfortable. So I initially woke up to move

around and realized that I could not move

around because I felt this weight on my

backside. I felt his hand in my pants, in my

underwear. I felt this fingering motion, and I

66a

felt this warmth that felt like a penis on my

back right end.

GH described that Appellant’s left hand was

entering her underwear from the back of her pants,

and that Appellant’s fingers entered her vagina. GH

also said she felt warmth and pressure on her body,

adding, “It was on my right buttocks. My pants were

slightly pulled down so that he would be able to have

his hand inside of my pants.” When asked if she felt

Appellant’s penis, GH said, “Yes.” When asked if she

believed the warmth and pressure on her buttocks,

torso, and upper thigh was from Appellant’s penis, she

replied, “Yes, sir.”6

GH immediately got up and went to the bathroom.

She realized her bra was unclasped in the back and

her pants were unbuttoned. GH also realized her

vagina was naturally lubricated, which, as she stated,

confirmed to her what Appellant was doing—“feeling

up on me in my sleep.” GH became very upset, went

into the living room, and turned on the light. GH said

Appellant was laying on the air mattress “pretending”

to sleep when she entered the room. She sternly asked

him, “Why is my bra undone,” to which Appellant

replied, “I had undone your bra in your sleep. You

were laying on my chest, and I was rubbing your back,

and I thought that you would be okay with it.”

At this point, GH also realized Appellant had no

shirt on. She testified, “I told him that that was not

okay with me. I was sleeping and that he shouldn't

have just assumed that something like that was okay,

6 Appellant was acquitted of Specifications 2 and 3. Specification

2 alleged Appellant touched GH’s torso, buttocks, and leg with

his penis while GH was asleep. Specification 3 alleged Appellant

penetrated GH’s vulva with his finger while GH was asleep.

67a

and that he needed to get up, take his things[,] and get

out.” As Appellant got up and was gathering his

things, GH could see that Appellant had an erection.

When asked if she remained calm or ever had to

elevate the tone of her voice, GH explained that she

got very upset and told him to leave. She stated that

she was crying and yelling and at one point, she told

Appellant if he did not leave she would call the police.

GH estimated about 20 minutes passed from when she

initially confronted Appellant to when he actually left.

Appellant took his alcohol with him but left the rice

cooker.

Once Appellant was gone, GH cried for a bit and

then called her longtime friend, Mr. JT, whom she had

known since high school. She spoke with Mr. JT for

about two hours and then decided to clean up, adding,

“I felt gross and wanted to go take a shower.” She

eventually went to sleep around 0400 hours. When

she woke up a few hours later, around 0700 or 0800

on Saturday morning, she called Staff Sergeant (SSgt)

JT, her duty sponsor, and told him what happened the

night before. SSgt JT then had the first sergeant call

GH.

Later that morning, Appellant contacted GH. He

apologized to GH for what happened and said he had

“no reason to not believe” her when she said that it

happened, but he did not think that he was “that type

of person.”

GH spoke with the Air Force Office of Special

Investigations (AFOSI) that evening. At her

apartment, AFOSI agents took pictures and gathered

the shirt, jeans, bra, underwear, and menstrual pad

she was wearing the night before. The menstrual pad

collected from GH’s apartment was sent to the United

68a

States Army Criminal Investigation Laboratory for

testing. The results showed a low level of male DNA

on the pad. Dr. DW, a forensic biologist, conducted

DNA testing and testified that he was able to generate

a partial profile “consistent with the profile that was

obtained from [Appellant].” Dr. DW further testified

that he compared the profile to a database to see how

common or rare that profile was in the United States

population and concluded the probability of obtaining

the same partial profile at random in the United

States was approximately 1 in 3,199. Dr. DW also

stated the DNA profile found would be shared by

Appellant and any of his paternal male relatives.

The next day, GH submitted to a medical forensic

exam lasting about two hours. At trial, the nurse who

performed the exam, Ms. MM, was recognized as an

expert in the field of forensic nursing. She testified

that during the examination GH told her she woke up

with Appellant’s hand in her underwear. This

statement is contained in Ms. MM’s report of the

examination that was provided to Appellant prior to

trial and admitted as Prosecution Exhibit 1 without

objection.

Later that day, GH also conducted a pretext

SnapChat conversation with Appellant. The

SnapChat conversation was admitted as a prosecution

exhibit during GH’s testimony. GH testified that

during the conversation Appellant never claimed he

thought she was awake and participating. When

asked specifically about consent on direct

examination, GH denied consenting to Appellant

touching her buttocks while in the kitchen, denied

consenting to Appellant touching her buttocks or

vagina, and denied consenting to Appellant “dry

humping” her with his erect penis on her torso,

69a

buttocks, and leg on the air mattress. GH stated,

“[O]ne, it was unwanted. I had stated that we were

just friends. Two, I was sleeping. And three, it was

just inappropriate. I don’t see him that way.”

AFOSI agents interviewed Appellant on 22

September 2020. The recorded interview was played

for the members at trial. During the interview,

Appellant stated that the two went shopping earlier

in the afternoon, went to a liquor store, and ended up

at GH’s apartment to cook rice and fish. He also said

they went to a local store to get cookies. Appellant

explained they both were drinking and started

watching the movie after they ate. Appellant also

stated GH was wearing a sweatshirt and sweatpants,

but then changed into “booty shorts” and a t-shirt

when they started to watch the movie. Appellant

confirmed GH said she was tired and went to sleep a

little before him. Appellant then said that GH “rolled

around [and] put her arm across me, and as I said,

hand on my chest and that’s when everything

started.”

During the interview, Appellant admitted to

unhooking GH’s bra and rubbing her back while GH

was asleep. Appellant stated he rubbed her back for a

little bit, kissed her on the top of her head, and said

he then fell asleep. Appellant told AFOSI agents that

he regularly “gets hot” when he sleeps and stated, “I

want to totally take my shirt off whenever I sleep.” He

added, “But I probably got hot while I was sleeping.”

Appellant said he awoke when GH turned on the

light and said he was groping and fingering her.

Appellant stated, “I don’t want to believe that it

happened, but if it did happen, I wasn’t really

70a

conscious. I wasn’t there for it.” He stated, “I was

asleep, and I was really confused.”

Later, however, Appellant began to discuss what

happened between when he said he fell asleep and

when GH woke him up:

And that’s one of the main reasons why I’m

confused, and I don’t want to say . . . “Yes, I

fingered her, and my [penis] was out, and I was

dry humping her, and like I unhooked her bra,

and I was up on her and everything,” I don’t

want to say that because it doesn’t seem

actually real to me, but I can also see it

happening.

....

I could see like me being like up against her

being like halfasleep, half-awake kind of thing,

like not really all there. And like putting my

hand down her shorts or something, like

grabbing her butt or something, I don’t know. I

could see it happen, but I like it just doesn’t feel

real to me.

Appellant later stated, “I still don’t think that I

was awake because I have a decent memory,” and,

“maybe I was awake like you said, but . . . I don’t think

I was fully awake, conscious, there mentally.”

On the recorded interview, Appellant then closed

his eyes as if trying to remember better what

happened. Appellant then stated:

I think I like hugged her maybe, or . . . just like

wrapped my arm around her a little bit.

....

71a

So then I tried to get comfy again, and feel up

to like to really fall back asleep. And I think I

kind of did because I was asleep, and I was like

up against her, and I think like maybe I was

aroused a little bit because her behind was like

close to my front.

....

I don’t really know, like I think at that point I

was just like rubbing her leg for a little bit, and

then I think I -- I touched her butt. And then

sometime after that I could kind of see myself

like -- oh, it’s -- it’s a terrible move, but a move

that I know that I’ve pulled with significant

others in the past. So like if you go into a little

leg or butt massage or whatever, and then you

like put your hand in their pants or whatever.

....

I think after that I . . . put my hand down her

shorts, and I don’t know if I actually fingered

her or not, but my hand was probably near

there.

....

I still don’t think I fingered her, but I don’t

think that I’d be that coordinated, I guess is the

word. But I think like I could kind of see myself

put my hand down her pants, and just like kind

of leaving it there.

Appellant said, “[I]t’s not a one hundred percent for

me in any means. I don’t even know if it’s 50 percent

for me, but saying it out loud kind of felt real so . . . if

that means anything.” (Omission in original).

72a

Appellant further stated, “I don’t know if it’s like

my brain just doesn’t want it to be real or something,

and it’s [sic] just like doesn’t want it to be a legit

memory, but it . . . seemed real.” Appellant then said,

I mean, it’s a very short memory. . . . That may

have just like [sic] a couple minutes at most. . . .

I don’t think I was trying to like perform any

sort of like foreplay or something for a while. I

think it was just kind of -- I don’t want to say

random, but spontaneous or something. I don’t

know, things just like happened. And then like

I wasn’t really like meaning much by it. And

then I remember like cuddling up against her

for a little bit more and then kind of just like

falling back asleep completely. And then like

that’s when everything just kind of like went

dark, and then I saw the light turn on, and her

kind [of] push on my shoulder a little bit.

When asked to clarify whether he put his hands

down her pants or both her pants and underwear,

Appellant answered, “It was also her underwear

because honestly, I don’t if like -- I feel skin.”

Appellant further stated,

I know for a fact that I was like squeezing her

and I was like kind of like rubbing her butt a

little bit. So since I was down there, like it

seems like it could’ve happened to me that I was

also rubbing her vagina. But I don’t have like

an exact like hundred percent feeling of it. But

it makes sense to me. I'm like at like 80 percent

right now.

When asked about touching GH in the kitchen

while making cookies, Appellant said that he may

have “booped” her butt, adding, “I don’t know if it was

73a

like with my hand, or like a spatula, or like my knee,

or -- I remember that though.” He added, “I was just

being like playful. I wasn’t meaning anything by it. . .

. I think I literally said ‘boop.’ You know, like you like

boop someone’s nose or something.” Appellant said he

did not grab her butt at this time, but “just poked it

real quick.”

Later, when asked again about placing his finger

into GH’s vagina, Appellant responded, “I don’t

actually remember it, but I mean, it’s a possibility.”

Appellant further stated:

I think I was just, probably just like

subconsciously enjoying like cuddling with a

woman and being near someone like that. I

think like maybe I was just like kind of aroused

and wanted to touch her butt or something. I’m

not too sure.

II. DISCUSSION

A. Legal and Factual Sufficiency

Appellant contends his conviction for abusive

sexual contact is both legally and factually

insufficient. We are not persuaded by Appellant’s

arguments and find no relief is warranted.

1. Additional Background

During trial, the members heard testimony from

three witnesses who talked to GH shortly after the

night in question and heard her describe Appellant’s

conduct as wrongful. Mr. JT described the phone call

he received from GH in the early morning hours of 18

September 2020. He testified she was “crying . . .

hysterically” like he had “never heard her cry . . .

before.” According to Mr. JT, it took about “20

74a

minutes” before GH “calmed down” enough to tell him

what happened.

Mr. JT explained that GH told him she and

Appellant had been hanging out, she fell asleep, and

“woke up to pretty much having her bra unclasped

and having her breasts touched and having a hand in

her panties” and rubbing her vagina. When asked on

cross-examination whether GH told him about

Appellant touching her butt earlier in the night or

rubbing his penis against her, Mr. JT responded, “Not

to my knowledge.” In response to a panel member

question, however, Mr. JT explained that while he

wanted to get full details from GH, “I'm guess[ing] she

did not want to explain the whole thing at the moment

since she probably was trying to keep calm to explain

the key points of it.”

When another panel member asked Mr. JT about

GH’s sleeping patterns, he responded,

[I]t’s very odd, but sometimes we’d go riding

bike[s] or we’d be watching movies, and she’s to

that point of exhaustion and she is calm, like no

more adrenaline from like bike riding, or is just

tired, she would just fall asleep. Like there

would be no warning to it. She would just be

awake, you would look next to you, and she is

already asleep.[7]

Appellant called as a witness SSgt JT who testified

that GH told him in a phone call that she woke up with

Appellant on top of her with his hand down in her

underwear. SSgt JT recalled GH telling him

Appellant was naked, she was wearing a shirt and

7 In Appellant’s case-in-chief, the members heard an excerpt

from GH’s Air Force Office of Special Investigations interview in

which she told agents she was “usually a light sleeper.”

75a

underwear, and Appellant was rubbing his penis on

her.

Appellant also called Spc TL who testified she

knew both GH and Appellant from technical school.

Spc TL said she and GH were friends from April 2020

until September 2020. Spc TL acknowledged GH

called her on the morning after the incident. Spc TL

stated GH sounded very scared and upset on the

phone and GH told her that she was “freaked out.” Spc

TL testified GH told her:

She said that she had invited him over, that he

was going to make her dinner. She had had [sic]

a drink, and they had watched a movie after

they had finished eating, and then she . . . said

she was going to go to bed, and that she had told

him . . . he couldn’t spend the night, but she left

him where he was and she . . . went to sleep and

that when she woke up in the middle of the

night that he was . . . pressed up against her.

Spc TL further testified that GH told her she had

run to the restroom when she woke up, yelled at

Appellant, and told him to leave. Spc TL also testified

GH did not mention Appellant fingered her or

touching her butt. On cross-examination, however,

Spc TL admitted her call with GH was interrupted

because Spc TL was heading to the hospital for her

daughter. When asked if she had an opinion on GH’s

character for untruthfulness, Spc TL said “she is

untruthful.” However, on cross-examination, Spc TL

admitted their friendship had deteriorated after she

confronted GH about how she behaved around men.

Spc TL admitted she stopped being GH’s friend after

GH reported Spc TL’s comment to her first sergeant.

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Appellant also called another witness, Spc CR, who

knew GH from technical school. Spc CR said they were

together roughly ten hours a day during technical

school and had approximately 40 to 50 conversations.

Spc CR stated his opinion that GH is a “very

untruthful person.” On cross-examination, however,

Spc CR admitted he had no contact with GH either

before or after technical school and his knowledge of

her was strictly based on their interaction at technical

school. Spc CR also admitted that GH reported him for

sexual harassment during technical school, and that

affected his career.

2. Law

Issues of legal and factual sufficiency are reviewed

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

(C.A.A.F. 2002). “Our assessment of legal and factual

sufficiency is limited to 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)), rev. denied, 82 M.J. 312

(C.A.A.F. 2022).

“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

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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), cert. denied, __ U.S. __, 139 S. Ct.

1641 (2019). Indeed, in assessing legal sufficiency, the

testimony of a single witness may satisfy the

Government’s burden to prove every element of a

charged offense beyond a reasonable doubt. United

States v. Rodriguez-Rivera, 63 M.J. 372, 383 (C.A.A.F.

2006). 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 (1979)).

“The test for factual sufficiency is ‘whether, after

weighing the evidence in the record of trial and

making allowances for not having personally observed

the witnesses,’ [this] court is ‘convinced of the

[appellant]’s guilt beyond a reasonable doubt.’” United

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

United States v. Turner, 25 M.J. 324, 325 (C.M.A.

1987)). “In conducting this unique appellate role, we

take ‘a fresh, impartial look at the evidence,’ applying

‘neither a presumption of innocence nor a

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

determination as to whether the evidence constitutes

proof of each required element beyond a reasonable

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

(quoting Washington, 57 M.J. at 399). This court’s

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review of the factual sufficiency is limited to the

evidence admitted at trial. See Article 66(d), UCMJ,

10 U.S.C. § 866(d); United States v. Beatty, 64 M.J.

456, 458 (C.A.A.F. 2007) (citations omitted).

In order to find Appellant guilty of abusive sexual

contact, in violation of Article 120, UCMJ, as alleged

in Specification 1 of the Charge, the panel members

were required to find the following two elements

beyond a reasonable doubt: (1) Appellant did at or

near Colorado Springs, Colorado, on or about 18

September 2020, commit sexual contact upon GH by

touching her buttocks with his hand with the intent to

gratify his sexual desire; and (2) Appellant did so

without GH’s consent. See Manual for Courts-Martial,

United States (2019 ed.) (MCM), pt. IV, ¶ 60.b.(4)(d).

Article 120(g)(2), UCMJ, states that sexual contact

means:

[The] touching, or causing another person to

touch, either directly or through the clothing,

the vulva, penis, scrotum, anus, groin, breast,

inner thigh, or buttocks of any person, with the

intent to abuse, humiliate, harass, or degrade

any person or to arouse or gratify the sexual

desire of any person. Touching may be

accomplished by any part of the body or object.

10 U.S.C. § 920(g)(2).

Article

120(g)(7)(A),

UCMJ,

10

U.S.C.

§ 920(g)(7)(A), explains consent as “a freely given

agreement to the conduct at issue by a competent

person.” “A sleeping, unconscious, or incompetent

person cannot consent.” Article 120(g)(7)(B), UCMJ,

10 U.S.C. § 920(g)(7)(B). “All the surrounding

circumstances are to be considered in determining

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whether a person gave consent.” Article 120(g)(7)(C),

UCMJ, 10 U.S.C. § 920(g)(7)(C).

3. Analysis

We have carefully reviewed the evidence at

Appellant’s court-martial and find it legally and

factually sufficient to support his conviction for

abusive sexual contact. The Government introduced

convincing evidence of Appellant’s guilt, most

significant, the testimony of GH, who described how

Appellant intentionally touched her buttocks with his

hand, without her consent, and with the specific

intent to gratify his sexual desire. According to GH,

she awoke to find Appellant’s “hand in [her] pants, in

[her] underwear.” She further stated that Appellant’s

hand was entering her underwear from the back of her

pants.

GH’s testimony was also supported by physical

evidence showing a partial male DNA profile,

consistent with Appellant, found on the menstrual

pad GH wore at the time of the incident. Additionally,

we note the members had the opportunity to view

Appellant’s interview with AFOSI, where Appellant

discussed, more than a dozen times, his touching of

GH’s buttocks on the night in question. Specifically,

Appellant stated, “I know for a fact that I was like

squeezing her and I was like kind of like rubbing her

butt a little bit.”

GH also clearly testified she did not consent to

Appellant’s actions while she slept or otherwise

convey any interest that she wished to engage in

sexual activity with Appellant either immediately

prior to or earlier on the night in question. In GH’s

words, “[T]hat was not okay with me. I was sleeping

and . . . he shouldn’t have just assumed that

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something like that was okay.” GH further testified to

circumstances showing Appellant had the intent to

gratify his sexual desire, particularly that Appellant

“had an erection” when she observed him shortly after

waking up. Moreover, additional witnesses testified at

the court-martial about how Appellant’s conduct

upset GH and caused her to promptly report it to

others.

We find GH’s testimony credible and sufficient,

even without additional evidence, to support the

charged offense. As an evidentiary standard, proof

beyond a reasonable doubt does not require more than

one witness to testify credibly. See Rodriguez-Rivera,

63 M.J. at 383. Nevertheless, in this case, Appellant’s

statements to AFOSI and the other witnesses’

accounts corroborate important details of her version

of events.

The crux of Appellant’s argument at trial and on

appeal is that his conviction is legally and factually

insufficient because GH is not credible. Our review of

the entire record, including any inconsistencies,

indicates sufficient evidence to support GH’s

testimony. We are not persuaded any inconsistencies

are more than minor or equate to reasonable doubt,

especially when we factor in Appellant’s inculpatory

statements to law enforcement.

Viewing the evidence produced at trial in the light

most favorable to the Government, a rational trier of

fact could have found the essential elements of

abusive sexual contact beyond a reasonable doubt. See

Robinson, 77 M.J. at 297−98. Furthermore, after

weighing all the evidence in the record of trial and

making allowances for not having personally observed

the witnesses, we are ourselves convinced of

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Appellant’s guilt beyond a reasonable doubt. See Reed,

54 M.J. at 41 (quoting Turner, 25 M.J. at 325).

B. Notice and Due Process

Appellant next argues his Fifth Amendment8 due

process rights were violated because he was convicted

on an uncharged theory of abusive sexual contact. He

alleges the Government engaged in a “bait and switch”

that deprived him of his right to a fair trial. In

Appellant’s view, the charged offense related only to

the incident in the kitchen in which Appellant touched

GH’s buttocks as she was putting cookies in the oven.

According to Appellant, “To the extent that the guilty

finding was the result of members applying the

elements to the conduct on the air mattress,

[Appellant] was convicted of an offense of which he

was never charged.”

In addition, Appellant argues the military judge

violated the canon against surplusage and Appellant’s

due process rights by allowing the Government to

argue a different theory of liability than charged.

Specifically, Appellant asserts this error could have

led the court members to improperly find him guilty

of sexual contact with GH while she was incapable of

consent because she was asleep, instead of finding

that Appellant acted without GH’s consent as the

specification alleged. We are not persuaded by

Appellant’s arguments and find no relief is warranted.

1. Additional Background

On 5 April 2021, one charge and three

specifications were preferred against Appellant.

Specification 1 of the Charge, which is the only

convicted offense, alleged Appellant “did, at or near

8 U.S. CONST. amend. V.

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Colorado Springs, Colorado, on or about 18 September

2020, touch [GH’s] buttocks with his hand, with an

intent to gratify his sexual desire, without her

consent.” Appellant did not request a bill of

particulars to obtain more specific details about the

conduct supporting this or any other specification.

At the start of Appellant’s court-martial, trial

counsel began his opening statement by quoting

Appellant’s admission to AFOSI that he touched GH’s

buttocks on the air mattress. Trial counsel quoted

Appellant as saying, “It’s a terrible move, but it’s a

move that I know that I have pulled with significant

others in the past, where like you get like a little bit

of a leg or a butt massage, or whatever, and then like

you put your hand in their pants.” Trial counsel later

stated, “The next thing [GH] is . . . waking up to the

[Appellant]’s hand in her pants. She could feel him

rubbing her buttocks, leg and thigh.” Trial counsel’s

opening statement never mentioned the touching

incident in the kitchen.

GH, during her testimony, stated that Appellant’s

arm and hand were down the back of her pants when

she woke up, adding, “He used his left hand to go into

the back of my pants and into my underwear.” After

receiving findings instructions, a panel member asked

whether Specification 1 of the Charge included only

the event in the kitchen or all the conduct that

evening. During an Article 39(a), UCMJ, 10 U.S.C. §

839(a), session, outside the presence of the members,

trial counsel responded:

I believe that it could reasonably apply to both

instances per se. If they don’t find an intent for

the touching at the oven, that they should

consider the touching on the air mattress. But

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. . . the gist of the [G]overnment’s argument and

our theory is that that primarily refers to the

conduct on the air mattress.

....

Government’s [closing] argument will . . .

suggest the possibility that they could find him

guilty of . . . either conduct.

Appellant’s trial defense counsel made no objection

on a lack of notice or due process basis. Appellant’s

trial defense counsel also never stated they were not

prepared to defend against Appellant touching GH’s

buttocks on the air mattress without consent. Instead,

Appellant’s counsel only questioned whether it was

“proper for the judge to instruct on the [G]overnment’s

theory of the case.”

The military judge then proposed the following

instruction to respond to the member’s question: “I

would allow the parties to describe their theories of

when and how that may have happened, your job is to

consider whether those three events happened on this

date.” Appellant’s counsel responded, “I think that -even with that language, it’s even clearer. That’s

perfect, Your Honor.”

The military judge later instructed the members

that the Specification of the Charge

asks you to determine whether, in your

judgement, at any time on 18 September 2020,

those three elements occurred: that there was a

touching of the buttocks, by the accused; that it

was with the intent to gratify sexual desire;

and, that it was without consent. So, your duty

is to determine whether in your judgement,

those three elements occurred at any time,

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during the course of the 18th. Whether or not it

did is ultimately up to you.”

The military judge ultimately allowed the trial

counsel to argue all the surrounding circumstances

could be considered for lack of consent. As to the

member’s question, the military judge told the panel:

[O]n Specification 1, I’d refer . . . you to my

instructions on the definition of consent, being

that “consent” means a freely-given agreement

to the conduct at issue by a competent person.

The definitions that I’ve given you to what that

entails still apply here. It’s for both parties to

argue whether or not they think those

circumstances are here under the facts of this

case. Ultimately, all the surrounding

circumstances are to be considered in

determining whether a person gave consent.

Appellant’s trial defense counsel did not object to the

instruction.

During the Government’s closing argument, trial

counsel stated Appellant committed the “butt

massage” while GH “lay in bed next to [Appellant]

asleep,” and later argued, “He did those things

without her consent.” The trial counsel closed by

stating, “When you consider [GH’s] reaction, the DNA

proof that corroborates this case, the two stories, the

accused’s own lies, his confession, there is no alternate

conclusion except the accused did these things to her

without her consent.”

2. Law

We review constitutional issues de novo. United

States v. Payne, 47 M.J. 37, 42 (C.A.A.F. 1997). We

review questions of law de novo. United States v.

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Watson, 71 M.J. 54, 56 (C.A.A.F. 2012). The scope,

applicability, and meaning of the UCMJ are matters

of statutory interpretation we review de novo. United

States v. Gay, 75 M.J. 264, 267 (C.A.A.F. 2016)

(citation omitted).

There is a presumption against the waiver of

constitutional rights on appeal. United States v.

Harcrow, 66 M.J. 154, 157 (C.A.A.F. 2008) (citing

Brookhart v. Janis, 384 U.S. 1, 4 (1966)). Accordingly,

an appellate court will only find an appellant has

waived the right to raise a constitutional issue on

appeal when it is “clearly established that there was

‘an intentional relinquishment or abandonment of a

known right.’” Id.

“The due process principle of fair notice mandates

that an accused has a right to know what offense and

under what legal theory he will be convicted.” United

States v. Tunstall, 72 M.J. 191, 192 (C.A.A.F. 2013)

(internal quotation marks, citation, and alteration

omitted). The Fifth Amendment’s due process clause

“does not permit convicting an accused of an offense

with which he has not been charged.” Id. (quoting

United States v. Girouard, 72 M.J. 5, 10 (C.A.A.F.

2011)). Therefore, a specification tried by courtmartial will not pass constitutional scrutiny unless it

both gives the accused notice of the charge he or she

must defend against and shields him or her from being

placed in double jeopardy for the same offense. United

States v. Turner, 79 M.J. 401, 403 (C.A.A.F. 2020)

(citations omitted). The military is a notice-pleading

jurisdiction. United States v. Gallo, 53 M.J. 556, 564

(A.F. Ct. Crim. App. 2000), aff’d, 55 M.J. 418 (C.A.A.F.

2001). A specification is sufficiently particular if it

“informs an accused of the offense against which he or

86a

she must defend and bars a future prosecution for the

same offense.” Id. (citations omitted).

The UCMJ presents various alternative theories of

liability for the offense of abusive sexual contact. See

MCM, pt. IV, ¶ 60.b.(4)(a)–(f). As related to this case,

the provision with which Appellant was charged

prohibits the commission of sexual contact “without

the consent” of the other person, while a separate

provision addresses sexual contact committed by a

person who knows or reasonably should know “that

the other person is asleep, unconscious, or otherwise

unaware that the sexual contact” was occurring.”

MCM, pt. IV, ¶ 60.b.(4)(d)–(f).

The canon against surplusage specifies “if possible,

every word and every provision” of a statute “is to be

given effect and that no word should be ignored or

needlessly be given an interpretation that causes it to

duplicate another provision or to have no

consequence.” United States v. Sager, 76 M.J. 158, 161

(C.A.A.F. 2017). This principle of statutory

construction is “strongest when an interpretation

would render superfluous another part of the same

statutory scheme.” Id. at 162 (quoting Yates v. United

States, 574 U.S. 528, 543 (2015)).

“It makes no difference how many members chose

one act or the other, one theory of liability or the other.

The only condition is that there be evidence sufficient

to justify a finding of guilty on any theory of liability

submitted to the members.” United States v. Brown,

65 M.J. 356, 359 (C.A.A.F. 2007) (quoting United

States v. Vidal, 23 M.J. 319, 325 (C.M.A. 1987)).

An error in the admission of evidence is harmless

in the constitutional context when there is no

“reasonable possibility that the evidence complained

87a

of might have contributed to the conviction.” United

States v. Gardinier, 67 M.J. 304, 306 (C.A.A.F. 2009)

(quoting Chapman v. California, 386 U.S. 18, 23

(1967)).

3. Analysis

Given the constitutional nature of the rights at

issue, we decline the Government’s request to apply

waiver in Appellant’s case. We do not find that the

record clearly establishes there was an intentional

relinquishment or abandonment of known rights. We

therefore turn our attention to the merits of

Appellant’s contentions and review the matter de

novo.

Appellant first argues he was convicted of an

offense for which he was not on notice. We disagree.

At the most basic level, our review of the record shows

Appellant was charged in Specification 1 of the

Charge with abusive sexual contact requiring proof he

acted without the consent of the other person. We find

the specification expressly alleged every required

element of the offense and informed Appellant he

would be required to defend against the offense of

abusive sexual contact without consent. We also find

Appellant is sufficiently protected from future

prosecution for the same offense.

On appeal, Appellant argues the Government

violated his due process rights by switching the events

that Specification 1 of the Charge was meant to

address. Specifically, Appellant argues he, his trial

defense counsel, and “everyone else involved in the

court-martial believed that Specification 1 alleged a

nonconsensual touching of GH’s buttocks while

bending over in the kitchen to put cookies in the oven.”

He further claims the inclusion of him touching GH’s

88a

buttocks on the air mattress was a “bait and switch”

that deprived him of a fair trial. We find the record

does not support Appellant’s claim.

First, Specification 1 of the Charge has never

changed. It reads the same post-trial as it did when it

was preferred by Appellant’s commander. Notably,

Appellant did not request a bill of particulars to clarify

the Government’s evidence supporting Specification 1.

Appellant makes no argument that he was not

provided discovery in this case, therefore, he had

pretrial access to GH’s statements that Appellant had

his hand down the back of her underwear while she

slept. Appellant also received discovery of his own

statements to AFOSI during the investigation where

he discussed at least a dozen times touching GH’s

buttocks on the air mattress. We also note the

Government’s opening statement made no mention of

the incident in the kitchen, but focused heavily on

Appellant’s conduct on the air mattress. Similarly, the

Government’s closing argument clearly indicated that

the abusive sexual contact on the air mattress was the

Government’s “primary” focus of prosecution. We find

no support for Appellant’s claim his due process right

to notice was violated.

Next, Appellant argues his due process rights were

violated when the military judge erroneously allowed

trial counsel to argue a different theory of liability

than originally charged. Specifically, Appellant

argues the military judge permitted the Government

to argue the abusive sexual contact occurred while GH

was asleep, as opposed to how it was charged—

without her consent. Again, we find the record does

not support this argument.

89a

Here, the record details that the military judge

properly advised the panel on the elements of the

offense, including the Government’s obligation to

prove beyond a reasonable doubt that GH did not

consent to the sexual contact. We see no reason why

the Government may not use evidence that GH was

asleep—ordinarily the focal point of a prosecution

under the theory of while asleep—as circumstantial

evidence of the lack of actual consent in a prosecution

under a theory of without consent. This conclusion is

consistent with our decisions in United States v.

Horne, No. ACM 39717, 2021 CCA LEXIS 261, at *69–

70 (A.F. Ct. of Crim. App. 27 May 2021) (unpub. op.),

aff’d, 82 M.J. 283 (C.A.A.F. 2022), and United States

v. Williams, No. ACM 39746, 2021 CCA LEXIS 109,

at *53–54 (A.F. Ct. Crim. App. 12 Mar. 2021) (unpub.

op.), aff’d, 81 M.J. 450 (C.A.A.F. 2021), where we held

circumstances showing a victim’s incapacity to

consent to a sexual act due to intoxication and

inability to consent due to unconsciousness,

respectively, could be part of the surrounding

circumstances to be considered in deciding whether

the accused acted without the consent of the victim.

Given the express language that “[a]ll the

surrounding circumstances are to be considered in

determining whether a person gave consent,” the rule

against surplusage does not pose any barrier to

Appellant’s conviction. Article 120(g)(7)(C), UCMJ. In

fact, we note trial counsel repeatedly argued “lack of

consent” throughout his entire closing argument and

never suggested the panel had to find GH was asleep.

Finally, we find nothing in the record to suggest

that trial counsel misled the members or asked them

to convict Appellant of any offense other than the one

for which he was charged. The Government submitted

90a

evidence of both Appellant’s conduct in the kitchen

and on the air mattress. "It makes no difference how

many members chose one act or the other, one theory

of liability or the other. The only condition is that

there be evidence sufficient to justify a finding of

guilty on any theory of liability submitted to the

members." United States v. Brown, 65 M.J. at 359

(quoting United States v. Vidal, 23 M.J. at 325).

We find no error by the military judge and no due

process violation of any kind occurred during

Appellant’s trial, and therefore conclude Appellant is

not entitled to relief.

C. Victim Impact Statement

Appellant contends that the military judge abused

his discretion by permitting GH’s victim impact

statement during sentencing. Specifically, Appellant

argues that the military judge erred when he allowed

GH to discuss the impact of the offenses of which

Appellant was acquitted. We agree with Appellant

that the military judge erred, but determine

Appellant did not suffer material prejudice to his

substantial rights and is therefore not entitled to

relief.

1. Additional Background

During sentencing proceedings, trial defense

counsel objected to Court Exhibit A, a victim impact

statement offered by GH. GH’s victims’ counsel sought

to admit the statement under R.C.M. 1001(c). Trial

defense counsel objected to certain content being

outside the scope of a victim impact statement.

Specifically related to the issue raised by Appellant on

appeal, trial defense counsel objected to the following

statement: “I felt disgusted, violated, and physically

gross. It dredged up old memories of what happened

91a

to me when I was younger. The displeasing feeling of

his hand and his penis felt vile.” Appellant’s trial

defense counsel argued that this portion of GH’s

statement referred to acquitted offenses, and did not

directly relate to an offense of which Appellant was

found guilty.

After an overnight recess, the military judge

issued a final ruling addressing Appellant’s objection.

His ruling concluded, “Accordingly, acquitted

misconduct will be permitted in its brief form in the

victim allocution. A curative instruction will also be

administered . . . .”

Court Exhibit B is what was eventually given to

the members. Relevant to this issue on appeal, Court

Exhibit B included the identical language quoted

above.

Subsequently, the military judge provided the

following instruction to the members:

During her unsworn statement, the victim

made brief reference to the acquitted

misconduct in this case, namely that

[Appellant] allegedly rubbed his penis on her

and penetrated her vulva while she slept. While

the rules for victim allocution are broad and

permitted [GH] to say this in her unsworn

statement, the Rules of [sic] Courts-Martial do

not permit you to consider that aspect of her

statement in arriving at an appropriate

sentence in this case. Once again, you may

sentence [Appellant] solely for the misconduct

of which he has been convicted . . . .

(Emphasis added.)

92a

2. Law

Article 6b, UCMJ, grants victims of offenses under

the UCMJ the right to be reasonably heard at a

sentencing hearing related to the offense. 10 U.S.C. §

806b(a)(4)(B). A victim covered by this right is one

“who has suffered direct physical, emotional, or

pecuniary harm as a result of the commission of an

offense under [the UCMJ].” 10 U.S.C. § 806b(b).

Victims in non-capital cases may exercise their

right to be reasonably heard through sworn or

unsworn

statements.

R.C.M.

1001(c)(2)(D)(ii).

“[U]nsworn statement[s] may be oral, written, or

both.” R.C.M. 1001(c)(5)(A). A “crime victim” is one

“who has suffered direct physical, emotional, or

pecuniary harm as a result of the commission of an

offense of which the accused was found guilty.” R.C.M.

1001(c)(2)(A).

Statements offered under R.C.M. 1001(c) may

include victim impact or matters in mitigation. R.C.M.

1001(c)(3). Victim impact under R.C.M. 1001(c) means

“any financial, social, psychological, or medical impact

on the victim directly relating to or arising from the

offense of which the accused has been found guilty.”

R.C.M. 1001(c)(2)(B).

Our interpretation of R.C.M. 1001(c) is a question

of law we review de novo. See United States v. Barker,

77 M.J. 377, 382 (C.A.A.F. 2018) (citation omitted).

However, we review a military judge’s decision to

accept a victim impact statement offered pursuant to

R.C.M. 1001 for an abuse of discretion. Id. at 383

(citing Humpherys, 57 M.J. 83, 90 (C.A.A.F. 2002)).

We find an abuse of discretion when the military

judge’s “findings of fact are clearly erroneous, the

court’s decision is influenced by an erroneous view of

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the law, or the military judge’s decision on the issue

at hand is outside the range of choices reasonably

arising from the applicable facts and the law.” United

States v. Miller, 66 M.J. 306, 307 (C.A.A.F. 2008)

(citations omitted). “[U]nder the last of these tests” we

must find, “‘more than a mere difference of opinion’;

rather, the military judge’s ruling ‘must be arbitrary,

fanciful, clearly unreasonable or clearly erroneous.’”

United States v. Uribe, 80 M.J. 442, 451 (C.A.A.F.

2021) (quoting United States v. Collier, 67 M.J. 347,

353 (C.A.A.F. 2009)).

When there is error regarding the presentation of

victim statements under R.C.M. 1001(c), the test for

prejudice “is whether the error substantially

influenced the adjudged sentence.” Barker, 77 M.J. at

384 (quoting United States v. Sanders, 67 M.J. 344,

346 (C.A.A.F. 2009)). This is determined by evaluating

the relative strength of the parties’ cases along with

the materiality and quality of the evidence in

question. Id. (citation omitted). “An error is more

likely to be prejudicial if the fact was not already

obvious from the other evidence presented at trial and

would have provided new ammunition against an

appellant.” Id. (citation omitted).

3. Analysis

We find that the military judge abused his

discretion by permitting the victim to reference

acquitted misconduct in her unsworn statement. We

find R.C.M. 1001(c) provides clear guidance on what

qualifies as proper victim impact; it states that victim

impact “includes any financial, social, psychological,

or medical impact on the victim directly relating to or

arising from the offense of which the accused has been

found guilty.” R.C.M. 1001(c)(2)(B). To the extent that

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the military judge permitted the victim in this case to

refer to acquitted misconduct over the Defense’s

objection, that was error.

In United States v. Da Silva, a panel of this court

provided the following guidance to military justice

practitioners:

When faced with these situations, we see the

military judge’s responsibility as two-fold: (1)

ensuring [the victim]’s right to be reasonably

heard is protected within the parameters of

R.C.M. 1001A; and (2) ensuring that if the court

members are allowed to hear victim impact

information that could be reasonably

interpreted by the court members as a comment

about an acquitted offense that they are

instructed they cannot do so.

....

We think the preferable course of action for

military judges should be to tailor the unsworn

statement instruction. This preserves a crime

victim’s right to be reasonably heard while

ensuring court members do not wrongly

interpret victim impact information that they

“must consider.” [Special victims’ counsel]

should be attuned to these concerns and

prepared to offer the military judge a tailored

instruction which protects their client’s right to

be reasonably heard while simultaneously

making sure that appellate error is not

unnecessarily introduced because their client’s

statement could be reasonably viewed as

commenting on an acquitted offense.

No. ACM 39599, 2020 CCA LEXIS 213, at *53–54

(A.F. Ct. Crim. App. 25 Jun. 2020) (unpub. op.)

95a

(emphasis added). The military judge cited to Da Silva

when explaining his decision to allow GH to refer to

acquitted misconduct in her unsworn statement, and

to address the statement with a tailored instruction to

the court members. However, military judges should

not interpret Da Silva to mean that they should allow

court members to receive unsworn victim statements

that exceed their proper scope under R.C.M. 1001(c).

“[T]he military judge has an obligation to ensure the

content of a victim’s unsworn statement comports

with the parameters of victim impact or mitigation as

defined by” the rule. United States v. Tyler, 81 M.J.

108, 112 (C.A.A.F. 2021) (citing R.C.M. 1001A,

Discussion). In Da Silva, this court addressed a

situation in which the victim’s unsworn statement

included ambiguous language susceptible of “two

possible interpretations” which might or might not

have implicated acquitted conduct. Unpub. op. at *52.

In that situation, Da Silva explained that a “standard

unsworn statement instruction” was potentially

inadequate, and an instruction tailored to the

circumstances would have been the “preferable

course.” Id. at *54. The instant case is different in that

the military judge unambiguously identified

references to acquitted conduct in GH’s unsworn

statement which exceeded what R.C.M. 1001(c)

permits, then declared victim unsworn statements are

permitted to exceed this scope and allowed GH’s

statement to go to the court members. To the extent

Da Silva was unclear about whether victim unsworn

statements may be allowed to address improper

matters, the United States Court of Appeals for the

Armed Forces’ subsequent opinion in Tyler clearly

states the military judge’s obligation to restrict their

contents.

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We now turn our attention to whether the portion

of GH’s written statement described above

substantially influenced the sentence by evaluating

the relative strength of the parties’ cases along with

the materiality and quality of the evidence in

question. See Barker, 77 M.J. at 384 (citation omitted).

We find it did not. Here, we find the first two factors

are essentially equal. The Government’s sentencing

case was strong, as was Appellant’s sentencing case.

The final two factors of the prejudice analysis,

materiality and quality, require us to assess how

much GH’s reference to acquitted offenses in her

unsworn statement may have affected the courtmartial. We find that GH’s unsworn victim statement

did contribute to the Government’s case. It provided

insight on how Appellant’s actions affected her life.

However, we find the very small portion of statement

that referenced acquitted misconduct only amounted

to one sentence in a statement that was almost two

pages in length. We find that the military judge’s

instruction substantially mitigated the error. Here

the military judge specifically instructed the members

that they could not consider GH’s reference to

acquitted misconduct in determining an appropriate

sentence. Court members are presumed to follow the

military judge’s instructions absent evidence to the

contrary. United States v. Taylor, 53 M.J. 195, 198

(C.A.A.F. 2000). We also find it important that this

was not the first time the members had heard from

GH as she testified during trial. GH’s unsworn

statement did not provide any new ammunition

against Appellant such as uncharged misconduct, and

trial counsel did not argue this portion of her unsworn

statement as justification for the sentence

recommendation.

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In conclusion, after evaluating the four factors, we

do not find that the error substantially influenced the

adjudged sentence. See Barker, 77 M.J. at 384

(citation omitted).

D. Sentence Severity

Appellant contends his sentence is inappropriately

severe. He asks that we use our authority under

Article 66(d), UCMJ, 10 U.S.C. § 866(d), to modify his

sentence. We are not persuaded Appellant’s sentence

is inappropriately severe and find no relief is

warranted.

“We review sentence appropriateness de novo.”

United States v. Datavs, 70 M.J. 595, 604 (A.F. Ct.

Crim. App. 2011) (citing United States v. Baier, 60

M.J. 382, 383–84 (C.A.A.F. 2005)), aff’d, 71 M.J. 420

(C.A.A.F. 2012). “We assess sentence appropriateness

by considering the particular appellant, the nature

and seriousness of the offense, the appellant’s record

of service, and all matters contained in the record of

trial.” United States v. Anderson, 67 M.J. 703, 705

(A.F. Ct. Crim. App. 2009) (per curiam) (citations

omitted). While we have great discretion in

determining whether a sentence is appropriate, we

are not authorized to engage in exercises of clemency.

See United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F.

2010) (citation omitted).

We have conducted a thorough review of

Appellant’s entire court-martial record, including his

record of service, and all matters submitted in

extenuation and mitigation. We find that the nature

and seriousness of the offense clearly support the

adjudged sentence of a bad-conduct discharge,

confinement for six months, reduction to the grade of

E-1, and a reprimand. Understanding we have a

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statutory responsibility to affirm only so much of the

sentence that is correct and should be approved,

Article 66(d), UCMJ, we conclude the sentence is not

inappropriately severe and we affirm the sentence as

adjudged.

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 approved findings and sentence are

AFFIRMED.

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court