Petition for Writ of Certiorari — John A. Evangelista, Petitioner v. United States

APPENDIX

TABLE OF CONTENTS

C.A.A.F. Order, United States v. Evangelista,

No. 26-0128/AF (Apr. 8, 2026) ............................ 1a

AFCCA Order, United States v. Evangelista,

No. ACM 40531 (Dec. 17, 2025) .......................... 2a

AFCCA Op., United States v. Evangelista,

No. ACM 40531 (Nov. 5, 2025) ............................ 4a

1a

United States Court of Appeals

for the Armed Forces

Washington, D.C.

United States,

USCA Dkt. No. 24-0128/AF

Appellee Crim.App. No. 40531

v.

ORDER DENYING

PETITION

John A.

Evangelista,

Appellant

On consideration of the petition for grant of

review of the decision of the United States Air Force

Court of Criminal Appeals, it is by the Court, this

8th day of April, 2026,

ORDERED:

That the petition is hereby denied.

For the Court,

/s/

cc:

Malcolm H. Squires, Jr.

Clerk of the Court

The Judge Advocate General of the Air Force

Appellate Defense Counsel (Ward)

Appellate Government Counsel (Payne)

2a

U NITED S TATES A IR F ORCE

C OURT OF C RIMINAL A PPEALS

UNITED STATES

)

Appellee )

)

v.

)

)

John A. EVANGELISTA )

Airman First Class (E-3) )

U.S. Air Force

)

Appellant )

No. ACM 40531

ORDER

Panel 1

On 5 December 2025, Appellant moved for this

court to reconsider its decision in United States v.

Evangelista, No. ACM 40531, 2025 CCA LEXIS 501

(A.F. Ct. Crim. App. 5 Nov. 2025) (unpub. op.), and

further suggested reconsideration en banc. Appellee

opposed the motion.

In accordance with Rule 27(c) of the Joint Rules of

Appellate Procedure for Courts of Criminal Appeals,

Appellee’s motion was transmitted to each judge of the

court who was in regular active service and not

disqualified, in which a vote was requested to

determine whether the court should reconsider the

opinion en banc. JT. CT. CRIM. APP. R. 27(c). No

participating judge requested a vote to determine

whether the court should reconsider the opinion en

banc.

The panel of Senior Judge Gruen, Judge Percle,

and Judge Morgan voted 3–0 against panel

reconsideration.

Accordingly, it is by the court on this 17th day of

December, 2025,

3a

ORDERED:

Appellant’s Motion for Reconsideration and

Suggestion for Reconsideration En Banc are

DENIED.

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court

4a

U NITED S TATES A IR F ORCE

C OURT OF C RIMINAL A PPEALS

________________________

No. ACM 40531

________________________

UNITED STATES

Appellee

v.

John A. EVANGELISTA

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

Appellant

________________________

Appeal from the United States Air Force Trial

Judiciary

Decided 5 November 2025

________________________

Military Judge: Lance R. Smith.

Sentence: Sentence adjudged 19 May 2023 by GCM

convened at Royal Air Force Lakenheath, United

Kingdom. Sentence entered by military judge on 7

September

2023:

Dishonorable

discharge,

confinement for 17 months and 30 days, forfeiture of

all pay and allowances, reduction to E-1, and a

reprimand.

For Appellant: Major Trevor N. Ward, USAF; Joshua

A. Hill, Esquire.

For Appellee: Colonel Matthew D. Talcott, USAF;

Lieutenant Colonel J. Pete Ferrell, USAF; Lieutenant

Colonel Jenny A. Liabenow, USAF; Major Kate E. Lee,

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USAF; Major Jocelyn Q. Wright, USAF; Mary Ellen

Payne, Esquire.

Before GRUEN, PERCLE and MORGAN, Appellate

Military Judges.

Senior Judge GRUEN delivered the opinion of the

court, in which Judge PERCLE and Judge MORGAN

joined.

________________________

This is an unpublished opinion and, as such,

does not serve as precedent under AFCCA Rule

of Practice and Procedure 30.4.

________________________

GRUEN, Senior Judge:

A general court-martial composed of officer and

enlisted members convicted Appellant, contrary to his

pleas, of one specification of sexual assault without

consent of JJ, and two specifications of abusive sexual

contact without consent of TL, in violation of Article

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

U.S.C. § 920.1,2 The members sentenced Appellant to

a dishonorable discharge, confinement for 17 months

and 30 days, forfeiture of all pay and allowances,

reduction to the grade of E-1, and a reprimand.

Appellant requested the convening authority defer the

adjudged reduction in grade and forfeitures until

1 Unless otherwise noted, all references to the UCMJ, Rules for

Courts-Martial, and Military Rules of Evidence (Mil. R. Evid.)

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

Appellant was acquitted of three specifications of abusive

sexual contact without consent and two specifications of sexual

assault without consent, in violation of Article 120, UCMJ.

2

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entry of judgment. The convening authority denied

both requests, took no action on the findings, and

approved the sentence in its entirety.

Appellant raises five issues on appeal, which we

have reworded and combined leaving four issues: (1)

whether Appellant’s conviction for sexual assault

against JJ is legally and factually sufficient; (2)

whether Appellant’s convictions for abusive sexual

contact against TL are legally and factually sufficient;

(3) whether the military judge abused his discretion

by excluding evidence under Mil. R. Evid. 412

regarding JJ and TL; and (4) whether trial defense

counsel were ineffective. Additionally, we consider an

issue not raised by Appellant: (5) whether Appellant

is entitled to relief for a presumptively unreasonable

post-trial delay of over 18 months between docketing

and our decision in this case.

On 7 October 2024, the United States Court of

Appeals for the Armed Forces (CAAF) issued their

opinion in United States v. Mendoza, 85 M.J. 213

(C.A.A.F. 2024), where they found that a charge of

sexual assault without consent is a separate theory of

liability from a charge of sexual assault upon a person

incapable of consenting. In Mendoza, the CAAF held

that in “without consent” cases, evidence of a victim’s

level of intoxication may be relevant and admissible,

id. at *22; however, it is improper to use this evidence

“as proof of [a victim’s] inability to consent and

therefore proof of absence of consent” in these cases.

Id. On 20 August 2025, the CAAF analyzed United

States v. Casillas in light of Mendoza, a case where

initial penetration had occurred while the victim was

sleeping or otherwise incapable of consenting, but the

victim awoke during the sex act, was determined to

have been capable of consenting in that moment, yet

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did not consent, and found that conviction was legally

sufficient. __ M.J. __, No. 24-0089, 2025 CAAF LEXIS

692, at *4 (C.A.A.F. 20 Aug. 2025).

We have considered Mendoza and Casillas in

analyzing Appellant’s convictions for sexual assault

upon JJ and abusive sexual contact upon TL and find

the convictions are legally and factually sufficient.

Additionally, we do not find the military trial judge

abused his discretion by excluding evidence under

Mil. R. Evid. 412, and find trial defense counsel were

not ineffective. We find no error materially prejudicial

to Appellant’s substantial rights and affirm the

findings and sentence.

I. BACKGROUND

Appellant entered the United States Air Force in

November 2020. In July 2021, Appellant was ordered

to serve as a jet engine mechanic at Royal Air Force

(RAF) Lakenheath, United Kingdom. It is in the

United Kingdom (England) where Appellant met the

individuals involved in this case to include JJ and TL,

the named alleged victims in the specifications of

which he stands convicted.3

A. Sexual Assault Without Consent of JJ

On 19 August 2021, Appellant went to a social club

at RAF Lakenheath for drinks with friends, one of

whom was JJ. JJ was an Airman stationed at RAF

Mildenhall and a friend of Appellant. At this social

club, Appellant, JJ, and others in their friend group

drank alcohol and socialized—much of which was

captured via cell phone videos taken throughout the

3 At the time of the alleged offenses both TL and JJ were enlisted

members of the United States Air Force.

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evening or text messages sent amongst the friends.

After some time, a few of the friends, to include JJ and

Appellant, left the social club and went back to the

dorms on RAF Lakenheath to attend a day-room

party. While there, JJ consumed alcohol until she felt

“very drunk.” Because JJ did not live at RAF

Lakenheath, she and her male friend CS agreed that

when they were ready to retire for the evening, JJ

would stay in CS’s dorm room with another of their

friends AC, a civilian female. CS stayed in a different

dorm room, not his own. When JJ and AC left the dayroom party, they, along with DW and Appellant, went

to DW’s room. When they left DW’s room, JJ and AC

left to retire to CS’s room for the night; Appellant went

with them.

JJ testified that she did not know why Appellant

went with them to CS’s room since “it was usually

girls sharing a room.” JJ assumed Appellant would go

back to his own room to sleep since it was “less than a

minute” away from CS’s room. When they arrived at

CS’s room, JJ changed into an oversized t-shirt and

underwear, she ate some food that AC made for her,

she watched some videos while sitting on the bed, and

then JJ fell asleep with AC also on the bed. Appellant

was not in bed with them when JJ fell asleep.

Sometime after JJ had fallen asleep, she awoke

because she “felt a hand in [her] underwear.” Even

though she felt “[v]ery tired, intoxicated, and frozen,”

“she was able to comprehend” that AC had been laying

to her left, and that the hand was coming from the

right. JJ testified that she laid there “frozen in fear,”

while she felt Appellant’s hand “crawling” from her

stomach into her underwear, where she felt “fingers

on [her] clit[oris] and then fingers going inside of [her]

vagina.” JJ explained that she had “never been

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touched like that before” and that she was scared.

Even though she “knew and felt what was happening,”

she “couldn’t move.” JJ explained that she said

nothing while this was happening to her and at some

point, in her frozen state, she fell back to sleep.

The next morning JJ awoke confused and saw

Appellant still in the bed with her and AC; Appellant

was on JJ’s right side. JJ questioned herself and what

she had experienced during the night because she

thought Appellant was homosexual and she

considered him to be her “gay best friend.” She

thought she could trust him. She knew there was no

one else who had been in the room at the time of the

assault except for AC and Appellant, but still she

“tried to forget about it and talk [herself] out of it ever

happening” because she “didn’t want to believe what

had happened actually happened.”

JJ testified that she experienced alcohol induced

blackouts during the evening of 19 August 2021, and

that such blackouts had happened to her before. She

admitted there were parts of the night she could not

remember, but she was adamant that she knew what

she experienced when she awoke in CS’s room in the

middle of the night, and that sometime later, it

became clear to her that it was Appellant who had

assaulted her.

A couple of days after this incident on 21 August

2021, Appellant and JJ were again partying with

friends at the dorms on RAF Lakenheath. Once again,

JJ drank excessively and became very drunk. At some

point during this party, Appellant “dragged [JJ] away

from the party” and took her to the room where she

had planned to sleep for the night. Again, JJ

experienced alcohol induced blackouts throughout the

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night. Again, Appellant performed sexual acts on JJ

which JJ did not consider consensual.4 The next

morning, JJ testified she was “in denial” and “didn’t

know what to do” and tried to act “as normal as [she]

could.” Although she did not think anyone would

believe her, after the interactions with Appellant on

21 August 2021, she confided in a couple of her

friends, to include AC, that she believed Appellant

had assaulted her and a few weeks later reported the

sexual assault incidents from both 19 August 2021

and 21 August 2021 to the Air Force Office of Special

Investigations (OSI).

Sometime after these events, JJ was diagnosed

with borderline personality disorder (BPD). At the

court-martial, Dr. EB was called to testify, qualified

without objection as an expert in the field of forensic

psychology, and offered testimony about false

memories, the effects of alcohol on memory, and how

BPD can affect a person’s memory and behavior. Dr.

EB did not personally diagnose JJ.

B. Abusive Sexual Contact of TL

On 4 July 2021, Appellant met TL for the first time

at a social club on RAF Lakenheath. They became

friends and according to TL, the friendship was

strictly platonic. On 12 August 2021, Appellant

messaged TL and told her that he “wasn’t doing okay,”

and asked if he could meet her at her dorm room.

While TL was in for the night and getting ready to go

to sleep, she did not want to turn him away if he

needed her. Appellant went to TL’s room and upon

4 The sexual acts that occurred between JJ and Appellant on 21

August 2021 were captured in specifications of which Appellant

was acquitted.

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opening the door and seeing Appellant, TL saw that

he was distraught and had “leftover tears on his face.”

TL hugged Appellant and he began to “cry a little bit.”

TL let Appellant into her dorm room to console him.

While in TL’s room, Appellant laid down on TL’s

bed with her and cried silently for about ten minutes

while TL held him. According to TL, once Appellant

calmed down, she stopped embracing him. Appellant

then told TL that his grandmother had passed away

and asked for another hug, to which TL complied. The

conversation became more “lighthearted” and they

began to talk about each other’s love lives and sexual

experiences. It was at that time that Appellant

“touched [TL’s] buttocks the first time.”5 Appellant’s

hand was not on her buttocks long because “[a]s soon

as it got into position, [she] pushed it away.” When she

pushed it away, she said to Appellant, “Hey, we are

not those kinds of friends.” Appellant responded

saying, “I’m sorry. I’m sorry. I know I’m blacklisted.

I’m sorry.” Amongst the friend group it was

understood that “blacklisted” meant that one would

not be in any sort of a relationship or sexual

relationship with a “blacklisted” person. After this

interaction, the two remained lying on TL’s bed facing

each other and talking.

Appellant made a comment to TL while

apologizing acknowledging that he understood TL was

5 Appellant was charged with touching TL’s buttocks with his

hand on divers occasions. The panel members found him guilty

except the words “on divers occasions,” and of the excepted words

not guilty. The members’ Findings Worksheet (Appellate Exhibit

XLV) confirmed the single touch they found Appellant committed

and of which he was guilty was “the second buttock touch with

his hand.”

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abstinent at the time. At some point, TL explained

that a former boyfriend did not want to see her

anymore. Appellant responded by telling TL that “if

[he] were to have sex with [her], [he] would do it like

this,” and then he moved TL into “the missionary

position.” TL was not expecting this to happen and

testified that “[his] arms were sort of holding [her] legs

into place. He was on his knees at [that] point and he

was leaning in to [her].” At this point, TL “could feel

the pressure of his groin area against [her] groin

area.” She could feel Appellant’s penis and believed he

had an erection at that point. All of this happened very

quickly and TL “just kept the momentum going and

swooped [her] legs down and [she] sat up to separate

[their] groin areas.” Once again, TL told Appellant,

“[Hey], again, we are not those kinds of friends.”

Again, Appellant apologized. At some point Appellant

touched TL’s buttocks for a second time. TL did not

make Appellant leave her room and although she felt

uncomfortable by these interactions, she did not think

at the time that Appellant had done anything wrong.

During OSI’s investigation of Appellant, TL was

called in to be interviewed by OSI agents as a

character witness for Appellant. TL initially had no

intention of disclosing the 12 August 2021

interactions between her and Appellant. However, at

some point during the interview, TL decided it would

be “a good event for [OSI] to know.” TL testified that

she “knew the incident that happened” between her

and Appellant was wrong and that she had been “in

denial for a long time.” She was “mad at [herself]” for

not “stand[ing] up for [her]self.” Even though TL

considered Appellant to have been a close friend

before the interactions on 12 August 2021, that

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evening was the last time TL and Appellant hung out

together socially.

II. DISCUSSION

A. Legal and Factual Sufficiency

1. Law

a. Legal and Factual Sufficiency

We review issues of legal and factual sufficiency de

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

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

“The test for legal sufficiency is whether, after

viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a

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

294, 297–98 (C.A.A.F. 2018) (quoting United States v.

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

reasonable doubt, however, does not mean that the

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

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

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

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

“[I]n resolving questions of legal sufficiency, we are

bound to draw every reasonable inference from the

evidence of record in favor of the prosecution.” United

States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001)

(citations omitted). As a result, “[t]he standard for

legal sufficiency involves a very low threshold to

sustain a conviction.” United States v. King, 78 M.J.

218, 221 (C.A.A.F. 2019) (alteration in original)

(citation omitted). The test for legal sufficiency “gives

full play to the responsibility of the trier of fact fairly

to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from

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

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

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

We review questions of factual sufficiency when an

appellant asserts an assignment of error and makes a

specific showing of a deficiency in proof. United States

v. Harvey, 85 M.J. 127, 130 (C.A.A.F. 2024) (citing

Article

66(d)(1)(B)(i),

UCMJ,

10

U.S.C.

§ 866(d)(1)(B)(i), Manual for Courts-Martial, United

States (2024 ed.) (2024 MCM)). The current version of

Article 66(d)(1)(B), UCMJ, FACTUAL SUFFICIENCY

REVIEW, states:

(i) In an appeal of a finding of guilty

under subsection (b), the Court may

consider whether the finding is correct in

fact upon a request of the accused if the

accused makes a specific showing of a

deficiency of proof.

(ii) After an accused has made a showing,

the Court may weigh the evidence and

determine controverted questions of fact

subject to—

(I) appropriate deference to the fact that

the trial court saw and heard the

witnesses and other evidence; and

(II) appropriate deference to findings of

fact entered into the record by the

military judge.

(iii) If, as a result of the review conducted

under clause (ii), the Court is clearly

convinced that the finding of guilty was

15a

against the weight of the evidence, the

Court may dismiss, set aside, or modify

the finding, or affirm a lesser finding.

10 U.S.C. § 866(d)(1)(B) (2024 MCM). This factual

sufficiency standard applies to courts-martial in

which every finding of guilty in the entry of judgment

is for an offense occurring on or after 1 January 2021.

See The National Defense Authorization Act for Fiscal

Year 2021, Pub. L. No. 116-283, § 542(e)(2), 134 Stat.

3388, 3612–13 (2021).

“[T]he requirement of ‘appropriate deference’ when

a [Court of Criminal Appeals (CCA)] ‘weigh[s] the

evidence and determine[s] controverted questions of

fact’ . . . depend[s] on the nature of the evidence at

issue.” Harvey, 85 M.J. at 130 (third and fourth

alterations in original). It is within this court’s

discretion to determine what level of deference is

appropriate. Id.

“[T]he quantum of proof necessary to sustain a

finding of guilty during a factual sufficiency review is

proof beyond a reasonable doubt, the same as the

quantum of proof necessary to find an accused guilty

at trial.” Id. at 131 (internal quotation marks

omitted).

For this court “to be ‘clearly convinced that the

finding of guilty was against the weight of the

evidence,’ two requirements must be met.” Id. at 132.

First, the CCA “must decide that the evidence, as the

CCA has weighed it, does not prove that the appellant

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is guilty beyond a reasonable doubt.” Id. Second, we

must be clearly convinced of this decision. Id.

The elements of sexual assault without consent, in

violation of Article 120, UCMJ, are: (1) that an

accused committed a sexual act upon another person;

and (2) that an accused did so without the consent of

the other person. Manual for Courts-Martial, United

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

The elements of abusive sexual contact without

consent, in violation of Article 120, UCMJ, are: (1)

that an accused committed sexual contact act upon

another person; and (2) that an accused did so without

the consent of the other person. MCM, pt. IV,

¶ 60.b.(4)(d).

b. The Mendoza Issue

Appellant was convicted of sexual assault of JJ

without consent, in violation of Article 120, UCMJ. As

charged, the Government was required to prove the

following elements beyond a reasonable doubt: (1) that

Appellant committed a sexual act upon JJ by

penetrating her vulva with his finger with an intent

to gratify his sexual desire; and (2) that Appellant did

so without JJ’s consent. MCM, pt. IV, ¶ 60.b.(2)(d).

A charge of sexual assault without consent is a

separate theory of liability from a charge of sexual

assault upon a person incapable of consenting. See

Mendoza, 85 M.J. at 220. A charge of sexual assault of

a person who is asleep, unconscious, or otherwise

unaware the act is occurring is likewise a separate

theory of liability from a charge of sexual assault

without consent. Compare MCM, pt. IV, ¶ 60.b.(2)(d)

(without consent) with MCM, pt. IV, ¶ 60.b.(2)(e)

(sleeping victim). A charge of sexual assault upon a

person who was asleep alleges criminal conduct upon

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a person who “was asleep” when the sexual act was

occurring and that “the [Appellant] knew or

reasonably should have known that the other person

was asleep” when “the sexual act was occurring.”

MCM, pt. IV, ¶ 60.b.(2)(e). A charge of sexual assault

without consent alleges criminal conduct “upon a

victim who is capable of consenting but does not

consent.” Mendoza, 85 M.J. at 220.

In “without consent” cases, evidence of a victim’s

level of intoxication may be relevant and admissible,

id. at 222; however, it is improper to use this evidence

“as proof of [a victim’s] inability to consent and

therefore proof of absence of consent” in these cases.

Id. In other words, what “the Government cannot do

is prove the absence of consent under Article

120(b)(2)(A), UCMJ, [10 U.S.C. § 920(b)(2)(A),] by

merely establishing that the victim was too

intoxicated to consent.” Id.

“[F]indings of guilt may be based on direct or

circumstantial evidence . . . .” Id. at 218 (internal

quotation marks omitted) (citing Rule for CourtsMartial (R.C.M.) 918(c)). “[T]he absence of direct

evidence of an element of an offense does not prevent

a finding of guilty for that offense from being legally

sufficient.” Id.

c. Defense of Reasonable Mistake of Fact as to

Consent from JJ and TL

“[I]t is a defense to an offense that the accused

held, as a result of ignorance or mistake, an incorrect

belief of the true circumstances such that, if the

circumstances were as the accused believed them, the

accused would not be guilty of the offense.” R.C.M.

916(j)(1). If the mistake goes to an element requiring

general intent or knowledge, it “must have existed in

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the mind of the accused and must have been

reasonable under all the circumstances.” Id.

Therefore, an honest and reasonable mistake that the

victim consented to the charged sexual contact is an

affirmative defense to the charged offense. See, e.g.,

United States v. McDonald, 78 M.J. 376, 379 (C.A.A.F.

2019) (considering the defense of mistake of fact to a

charge of sexual assault). Once raised, the

Government bears the burden to prove beyond a

reasonable doubt that the defense does not exist.

R.C.M. 916(b)(1); see McDonald, 78 M.J. at 379.

In considering whether the defense of mistake of

fact as to consent was raised at trial, we “consider the

totality of the circumstances at the time of the offense”

and consider “whether the record contains some

evidence of an honest and reasonable mistake to

which the [factfinder] could have attached credit if

they had so desired.” United States v. Hibbard, 58

M.J. 71, 75 (C.A.A.F. 2003) (citations omitted). While

the quantity of evidence required is low, the record

must contain evidence supporting both the subjective

“honest” and the objective “reasonable” mistaken

belief. See United States v. Davis, 76 M.J. 224, 230

(C.A.A.F. 2017) (citation omitted) (“[W]hile [the

a]ppellant’s statement may constitute a scintilla of

evidence about his ‘honest belief,’ . . . there is not an

iota of evidence that such a belief was reasonable.”);

see also United States v. Willis, 41 M.J. 435, 438

(C.A.A.F. 1995) (citation omitted) (“The testimony

relied on by appellant tended to show objective

circumstances upon which a reasonable person might

rely to infer consent. However, they provided no

insight as to whether appellant actually or

subjectively did infer consent based on these

circumstances.”).

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When determining what is reasonable, we know that

“‘[d]ue care’ is ‘such care as would be exercised by an

ordinarily prudent [person] when sober.’” United

States v. Harrington, No. ACM 39825, 2021 CCA

LEXIS 524, at *17 (A.F. Ct. Crim. App. 14 Oct. 2021)

(unpub. op.) (second alteration in original) (quoting

United States v. Bragg, 4 C.M.R. 778, 782 (A.F.C.M.R.

1952), then citing RESTATEMENT (SECOND) OF TORTS

§ 283C cmt. d (AM. LAW INST. 1965) (“[I]f a drunken

person’s ‘conduct is not that of a reasonable man who

is sober, his voluntary intoxication does not excuse’

conduct that would otherwise be negligent.”)), rev’d on

other grounds, 83 M.J. 408 (C.A.A.F. 2023); see also

United States v. Moore, No. ACM S32477, 2018 CCA

LEXIS 560, at *12 (A.F. Ct. Crim App. 11 Dec. 2018)

(unpub. op.) (citation omitted) (“This defense has two

elements: one subjective and one objective. For the

subjective element, the ignorance or mistake must

have existed in [the a]ppellant’s mind. For the

objective test, the ignorance or mistake must be

reasonable under all the circumstances as assessed by

an ordinary, prudent, sober adult.”).

The concept of “reasonably prudent person” is an

objective standard. Harrington, unpub. op. at *17.

“The actor is required to do what this ideal individual

would do in his place. The reasonable man is a

fictitious person, who is never negligent, and whose

conduct is always up to standard.” Id. at *18 (citing

RESTATEMENT (SECOND) OF TORTS § 283 cmt. c (AM.

LAW INST. 1965)); see also Military Judges’ Benchbook

(hereinafter Benchbook), Dept. of Army Pamphlet 279 at 1425 (29 Feb. 2020) (“A reasonable belief is one

that an ordinary, prudent, sober adult would have

under the circumstances.”). “Voluntary intoxication

does not permit what would be an unreasonable belief

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in the mind of a sober person to be considered

reasonable because the person is intoxicated.”

Benchbook, at 1425–26.

In United States v. Greaves, our superior court’s

predecessor stated,

It would seem that one is not being

reasonable if one is being reckless or

negligent. Thus it would seem that for

one reasonably to believe something, one

must have taken such measures as to not

be reckless or negligent with respect to

the truth of the matter. In other words,

one must be seen as exercising due care

with respect to the truth of the matter in

issue.

40 M.J. 432, 437 n.5 (C.M.A. 1994). “If a mistake is

honest yet ‘patently unreasonable,’ the defense is

unavailable to an appellant.” United States v. Rodela,

82 M.J. 521, 526 (A.F. Ct. Crim. App. 2021) (quoting

Davis, 76 M.J. at 230).

2. Analysis

Appellant alleges that his convictions for sexual

assault without consent against JJ and abusive sexual

contact against TL are legally and factually

insufficient. Viewing the evidence in totality, we find

the evidence is both legally and factually sufficient to

support the convictions of sexual assault and abusive

sexual contact as charged.

a. Sexual Assault Upon JJ

Appellant was convicted of sexual assault of JJ

without consent, in violation of Article 120, UCMJ. As

charged, the Government was required to prove the

21a

following elements beyond a reasonable doubt: (1) that

Appellant committed a sexual act upon JJ by

penetrating her vulva with his finger with an intent

to gratify his sexual desire; and (2) that Appellant did

so without JJ’s consent. MCM, pt. IV, ¶ 60.b.(2)(d).

Per Mendoza, the Government was required to prove

that JJ did not consent to sexual conduct with

Appellant at a time when she was capable of

consenting. The Government’s proof supporting the

conviction for sexual assault (Specification 6 of the

Charge) was primarily based on JJ’s testimony,

corroborating evidence from the testimonies of DW

and AC, as well as documentary and video evidence.

Appellant alleges three theories to support his

claim of legal and factual insufficiency: (1) there is

insufficient evidence that he penetrated JJ’s vulva

with his finger; (2) even if the Government proved

Appellant had digitally penetrated JJ’s vulva, they

failed to disprove that he had a reasonable mistake of

fact as to consent; and (3) the Government failed to

prove that JJ was “capable of consenting,” yet did not

consent as required by Mendoza. The basis for all

three of these contentions is Appellant’s assertion that

JJ “has almost zero credibility as a complainant” and

“there is no independent evidence to corroborate her

allegation.” Appellant argues JJ lacks credibility

because JJ’s level of intoxication on the evening of 19

August 2021, leading to her experiencing fragmentary

alcohol-induced blackouts throughout the evening and

into the following morning; and the diagnosis of BPD,

of which JJ had been diagnosed sometime after the

incident on 19 August 2021.

While Appellant’s arguments rely heavily on JJ’s

level of intoxication, JJ was forthcoming about her

drinking that evening and the effects alcohol had on

22a

her. JJ testified at trial and conceded that on the

evening of 19 August 2021, she was “very drunk.” She

also conceded that she had fragmentary blackouts

throughout the night—meaning some events she

could remember, and others she could not. Even

acknowledging she lost memory of some events, she

was certain that some events were very clear to her.

For example, she did not remember how much she

drank at the dorm party after they left the social club,

she did not remember her friends giving her Gatorade

shots, and she did not recall how she got to CS’s dorm

room—the dorm room where she and CS had

previously agreed she would stay with AC, her civilian

female friend after their night of partying since JJ did

not live on RAF Lakenheath. However, JJ did

remember many events of the evening. For example,

JJ remembered Appellant going with her and AC to

CS’s room, and she remembered that she did not know

why Appellant went with them to CS’s room since “it

was usually girls sharing a room.” JJ also

remembered that when they got to CS’s room, JJ

changed into an oversized t-shirt and underwear, she

ate some food that AC had made for her, she watched

some videos while sitting on the bed, and then she fell

asleep with AC also in the bed on her left side. JJ

recalled that when she fell asleep, Appellant was not

in bed with her and AC.

Sometime after JJ fell asleep, she awoke because

she “felt a hand in [her] underwear.” Even though she

felt “[v]ery tired, intoxicated, and frozen,” “she was

able to comprehend” that the hand was coming from

the right. JJ testified that she laid there “frozen in

fear,” while she felt Appellant’s hand “crawling” from

her stomach into her underwear, where she felt

“fingers on [her] clit[oris] and then fingers going

23a

inside of [her] vagina.” JJ explained that she had

“never been touched like that before” and that she was

scared. Even though she “knew and felt what was

happening,” she “couldn’t move.” JJ explained that

she said nothing while this was happening to her and

at some point, in her frozen state, she fell back to

sleep.

At trial, JJ was cross-examined on her memory of

what occurred and her certainty about who sexually

assaulted her. Trial defense counsel highlighted

statements JJ made to OSI in an attempt to show JJ

was unsure if Appellant was the perpetrator. For

example, JJ had stated she was not sure who it was

touching her “as it happened” and conceded that she

was confused by Appellant’s conduct because she

thought Appellant was homosexual and she

considered him to be her “gay best friend.” She

thought she could trust him. In this connection, and

even though when JJ awoke and saw Appellant still

in the bed on her right side, she questioned herself and

what she had experienced during the night. These

concessions lose the weight Appellant assigns them

when viewed in light of JJ’s testimony that Appellant

was on JJ’s right side when she awoke the next

morning; JJ felt the perpetrator’s hand coming from

her right side during the assault; there was no reason

to believe nor evidence supporting AC was the

perpetrator; and it was only the three of them in the

bed when JJ awoke the next morning. Moreover, when

challenged as to whether JJ was certain she was

assaulted, she testified that she knew “[i]t happened”

and there was “no doubt” in her mind that she felt

digital penetration that she did not consent to.

We also give little weight to Appellant’s contention

that JJ lacked credibility because she experienced

24a

fragmentary alcohol-induced blackouts throughout

the night. While Appellant claims JJ had “no reliable

memory of the event,” JJ actually testified to the

memories she had. JJ was not testifying to having no

memory whatsoever. The expert forensic psychologist

Dr. EB who testified for the Defense described two

types of blackouts: fragmentary blackouts and en bloc

blackouts. Dr. EB distinguished fragmentary

blackouts from en bloc blackouts, describing

fragmentary blackouts as being more common and en

bloc blackouts as rare. JJ had what Dr. EB described

as a fragmentary blackout, which would include “little

pieces of memory,” and is more common. In JJ’s case,

some of the “little pieces of memory” included the

assault she experienced and which she was able to

describe in detail.

We are equally unpersuaded by Appellant’s

contention that the conviction of sexual assault upon

JJ is rendered factually insufficient because the

Government offered “no independent evidence to

corroborate [JJ’s] allegation.” Proof beyond a

reasonable doubt does not require corroboration from

scientific evidence or eyewitness testimony; the law is

settled that “[t]he testimony of only one witness may

be enough.” United States v. Rodriguez-Rivera, 63

M.J. 372, 383 (C.A.A.F. 2006). While the Government

did not offer evidence Appellant asserts was required,

such as deoxyribonucleic acid (DNA), blood alcohol

content (BAC) results, video, audio, or eyewitness

testimony of the assault while being committed, they

did in fact offer corroborating evidence. In addition to

multiple videos and documentary evidence, the

Government called corroborating witnesses and

elicited testimony by DW and AC to corroborate JJ’s

recollections of the evening.

25a

DW testified about the evening on 19 August 2021.

He was not drinking and remembered seeing both JJ

and AC drinking heavily throughout the night. He left

the social club with JJ and went to the day room party

with her. He corroborated JJ’s account of her drinking

to the point of becoming “very drunk” while at the day

room party before retiring to CS’s room for the night.

DW further testified JJ “[had] difficulty with motor

function” and that “she had dropped a beer bottle” and

“had difficulties speaking.” DW further stated that JJ

“would blackout while sitting or standing, leading

[others] to have to catch her.” He clarified that what

he meant by “blackout” was that “for about five

seconds at a time [JJ] would go unconscious” and

someone would “have to catch her so she did not injure

herself.” JJ would then “come to, seemingly fully

conscious.” According to DW, Appellant was “one of

the people assisting, making sure that [JJ] did not

injure herself.” AC was another person assisting JJ

while she was in her drunken state. At some point, JJ

requested to leave the day-room party with DW, but

Appellant stated “he was not comfortable with that”

because DW was new to the friend group. Because of

this, Appellant, AC, and another Airman accompanied

DW and JJ to DW’s dorm room. Shortly thereafter,

Appellant, JJ, AC, and the other Airman left DW’s

room and DW did not know where they went or what

they did the rest of the evening.

AC also testified about the evening of 19 August

2021. Her testimony also supported much of JJ’s

testimony. Because AC stayed in the same room with

JJ and Appellant, she was able to corroborate JJ’s

recollection of what occurred when they retired to CS’s

room for the night. AC was the one who prepared food

for JJ and observed what was occurring before JJ fell

26a

asleep. Although JJ seemingly fell asleep before

Appellant got into the bed, AC testified that before she

herself fell asleep, she told Appellant “he should go to

bed,” at which point Appellant got into the bed with

JJ and AC. Even though AC remained oblivious to

what occurred between Appellant and JJ in the bed

after AC fell asleep, she indeed corroborated JJ’s

testimony that Appellant was in the bed next to JJ

and that they all awoke the next morning in the bed.

Appellant asserts multiple other reasons this court

should find his conviction on this specification

factually insufficient. Specifically, he argues JJ’s postassault conduct was not consistent with someone who

had been assaulted; JJ’s statements regarding

subsequent relationships she may or may not have

had with others in their friend group prove her not

credible;6 and her subsequent diagnosis of BPD

renders her unreliable. With respect to BPD, Dr. EB

confirmed her testimony was educational in nature as

she had not personally evaluated JJ; Dr. EB further

confirmed that JJ had no psychiatric history prior to

the sexual assault. We find little merit in Appellant’s

assertions and are unpersuaded such assertions

should convince this court his conviction is factually

insufficient.

We turn now to how, if at all, Mendoza is

implicated by the record of trial. Given testimony from

JJ that during the assault, she was “pretty much

6 The trial transcript and briefs addressing excluded evidence

were sealed pursuant to R.C.M. 1113. These portions of the

record and briefs remain sealed, and any discussion of sealed

material in this opinion is limited to that which is necessary for

our analysis. See R.C.M. 1113(b)(3)(C)(ii).

27a

asleep” and that she “was drunk” or “passed out” and

that she was “[n]ot able to move[,] very tired, [and]

intoxicated,” and similar statements, Appellant

contends JJ did not have the capacity to consent at

any time during the touching or penetration due to

either her being incapable of consenting because of

impairment by intoxication or because she was

sleeping. Appellant further cites the Government’s

findings argument wherein trial counsel told the

panel members that “sleeping people don’t consent,”

and “[w]e know [Appellant] cannot commit a

[consensual] sexual act on a sleeping individual

[because] [s]leeping individuals cannot consent.” The

military judge gave the panel members a similar

instruction. Because the Government charged the

sexual assault pursuant to Article 120(b)(2)(A),

UCMJ, rather than Article 120(b)(2)(B) or Article

120(b)(3)(A), UCMJ, 10 U.S.C. §§ 920(b)(2)(b),

(b)(3)(A), Appellant contends that “such a charge

cannot be proved beyond a reasonable doubt when the

evidence proves a sexual act with a person incapable

of consenting.”

We find the facts as elicited from JJ and the

argument of trial counsel implicate Mendoza, but we

find our superior court’s recent decision in Casillas

more helpful to our analysis. We further find that with

respect to Mendoza, evidence of JJ’s level of

intoxication throughout the evening was relevant and

admissible to the issues in the case. However, the

Government did not rely solely on JJ’s level of

intoxication or states of sleep throughout the evening

to prove she did not consent, but instead, relied on this

evidence in conjunction with all the other evidence

proving JJ was capable of consenting and did not

28a

consent to Appellant digitally penetrating her vulva

with his finger on 19 August 2021.

In Casillas, the CAAF found that it is possible to

determine consent, or lack thereof, during the

timeframe after initial penetration on a sleeping

person or a person incapable of consenting under the

theory of “without consent.” Casillas, 2025 CAAF

LEXIS 692, at *11. Our superior court further held

that the victim’s testimony “establishe[d] that she was

awake and aware of what was happening for at least

a short time when [the a]ppellant was penetrating

her,” id. at *14, and that “[d]uring that period, the

evidence supports the rational conclusion that [the

victim] had the capacity to consent, but that she did

not consent to the sexual act.” Id. We observe that in

coming to this conclusion, the CAAF essentially relied

on events that occurred earlier in the evening leading

up to the initial sexual penetration upon the sleeping

victim. We find that similar to Casillas, and as this

court recently found in United States v. Slayton, No.

ACM 40583, 2025 CCA LEXIS 427 (A.F. Ct. Crim.

App. 8 Sep. 2025) (unpub. op.), we must consider the

totality of Appellant’s relationship with JJ and the

events leading up to sexual penetration when

analyzing the issue of consent.

In the case at bar, we are uncertain if Appellant

initially digitally penetrated JJ while she was asleep

or incapacitated due to her earlier alcohol

consumption. What we do know is that Appellant and

JJ did not have a romantic relationship any time

preceding the assault, JJ considered Appellant to be

her “gay best friend,” and she thought he was

homosexual. She trusted him to be in CS’s dorm room

with her and AC as they fell asleep because they were

part of the same friends group. JJ had not invited

29a

Appellant into CS’s dorm room, nor did she invite

Appellant into the bed at any time throughout the

evening into the morning hours. Appellant knew JJ

was highly intoxicated before she fell asleep. More

importantly, although Appellant believed JJ was so

intoxicated that she would not or could not remember

the assault, that is not what the evidence bears out.

JJ testified with detail where Appellant was lying

on the bed when she realized what he was doing to her

and what she was experiencing. She was able to give

details as to where his hand was on her hip and from

what side Appellant reached around for access to her

vaginal area. JJ testified that she laid there “frozen in

fear,” while she felt Appellant’s hand “crawling” from

her stomach into her underwear, where she felt

“fingers going inside of [her] vagina.” JJ explained

that although she had “never been touched like that

before” she was aware of what was happening, capable

of consenting, and did not consent to the touching by

Appellant, and therefore not the penetration of her

vulva by Appellant.

At trial and on appeal, Appellant raised the

defense of reasonable mistake of fact as to consent.

Appellant argues that their friendship, to include how

JJ interacted with him throughout the evening; the

fact that she changed into a t-shirt over her

underwear to go to sleep; and her “lack of any adverse

communication of response” during the assault, gave

Appellant an honest and reasonable mistake of fact as

to her consent. We do not agree. The manner in which

JJ socialized with Appellant and her choice of sleep

wear the evening of 19 August 2021, gave no license

to Appellant to sexually penetrate JJ. Appellant had

no prior sexual relationship with JJ and there are no

facts to indicate JJ had any desire to have intimate

30a

relations with Appellant before he watched her get

into bed very drunk and fall asleep. Nonetheless, after

following her around all night, assisting her in her

drunken state, and going to CS’s room with JJ and AC

rather than his own room less than a one minute walk

from CS’s room, Appellant got into bed with JJ and

touched her sexually until she awoke frozen with fear

while he digitally penetrated her with the intent to

gratify his sexual desires. The Government countered

Appellant’s contention that he held an honest and

reasonable mistake of fact and met their burden to

prove beyond a reasonable doubt that the defense of

mistake of fact does not exist. R.C.M. 916(b)(1); see

McDonald, 78 M.J. at 379.

Accordingly, viewing all of the evidence in the light

most favorable to the Prosecution, and drawing every

reasonable inference in the Prosecution’s favor, we

find the conviction to be legally sufficient because a

rational trier of fact could have found the essential

elements of the Article 120(b)(2)(A), UCMJ, offense

beyond a reasonable doubt as to the theory of “without

consent.” Moreover, giving appropriate deference to

the factfinders at trial, we are not clearly convinced

that the finding of guilty was against the weight of the

evidence and find the conviction for sexual assault

upon JJ factually sufficient.

b. Abusive Sexual Contact Upon TL

Appellant was convicted of two specifications of

abusive sexual contact of TL without consent, in

violation of Article 120, UCMJ. As charged, the

Government was required to prove the following

elements beyond a reasonable doubt: (1) that

Appellant committed sexual contact upon TL; and (2)

that Appellant did so without TL’s consent. MCM, pt.

31a

IV, ¶ 60.b.(4)(d). In Specification 2 of the Charge, the

alleged sexual contact was by Appellant touching TL’s

groin with his penis, through their clothing, with an

intent to gratify his sexual desire. In Specification 3 of

the Charge, the alleged sexual contact was by

Appellant touching TL’s buttocks with his hand, with

an intent to gratify his sexual desire.

With respect to Specification 2, TL testified that

while they were lying on her bed and while she was

trying to comfort Appellant because he was upset, she

felt Appellant’s penis for approximately “two to three

seconds” against her groin while he held her down in

the “missionary position.” TL had agreed with OSI

agents during her interview that what she felt

possibly could have been Appellant’s cell phone or his

wallet, but at trial explained she went along with that

proposition from the agents because she was “trying

to give [Appellant], [who] at the time [ ] was [her]

friend, the benefit of the doubt.” She went on to

confirm that she was “confident that she felt

[Appellant’s] penis and not some other object.” TL

stated she was wearing thin gym shorts and “she

could feel the heat coming off of [Appellant’s] groin.”

With respect to Specification 3, TL testified that

during that same interaction with them on her bed

while she tried to comfort Appellant, Appellant

touched her buttocks for “maybe a second or two”

before she pushed his hand away and clarified to him

that “they are not those kinds of friends.” While

Appellant was acquitted of that buttocks touch, he

also touched TL’s buttocks a second time in a similar

manner during their interactions while on her bed as

TL tried to comfort an upset Appellant.

32a

Appellant alleges two theories to support his claim of

legal and factual insufficiency: (1) that the

Government failed to prove he committed sexual

contact of any kind on TL; and (2) that even if the

Government proved Appellant had committed sexual

contact on TL, they failed to disprove that he had a

reasonable mistake of fact as to consent. The basis for

both of these contentions is Appellant’s assertion that

TL’s testimony is not credible and also not

corroborated by independent evidence. We do not

agree.

Appellant asserts TL’s testimony regarding him

touching her groin with his penis is not credible

because she could not see his penis since they were

both dressed at the time of this sexual contact.

Appellant further asserts that because TL entertained

OSI’s question while they interviewed her as to

whether what she felt might possibly have been

something other than Appellant’s penis, that out-ofcourt statement should prevail in rendering her incourt sworn testimony unreliable as inconsistent. We

rely on TL’s sworn testimony that while Appellant had

moved TL into the missionary position and “his arms

were sort of holding [her] legs into place,” he leaned

into her and she “could feel the pressure of his groin

area against her groin area.” She also testified that

she could feel his penis which she believed was erect.

This contact did not last long because “immediately a

red flag went off” and TL quickly “swooped [her] legs

down and [ ] sat up to separate [their] groin areas”

stating “[h]ey, we are not those kinds of friends.”

According to TL, Appellant responded by saying “I

know. I know. I’m sorry. I’m sorry.” In addition to this,

TL testified she was confident it was Appellant’s penis

and not some other object because she “could feel the

33a

heat” and what was pushing on her was not hard like

a phone or metal object.

In challenging TL’s testimony regarding him

touching her buttocks without her consent, Appellant

asserts the evidence only proves he “attempted to

touch [TL’s] buttocks, but was stopped” and thus, the

alleged contact never happened. However, Appellant’s

asserted facts sound more like the first buttocks

touch, of which he was acquitted. There was a second

buttocks touch, the touch now in issue. TL testified

that Appellant “used his right hand and touched [her]

buttocks.” She further stated that his hand was on her

buttocks “maybe a second or two before [she]

immediately pushed it away.” Similar to after she took

action to get Appellant’s penis off her groin, once she

removed Appellant’s hand from her buttocks, she told

him, “Hey, we are not those kinds of friends,” to which

he responded by apologizing. He also confirmed that

he knew TL was “going abstinent” and that she was

“blacklisted,” which as explained supra, meant their

friendship was strictly platonic.

Appellant claims that even if we find the

Government did prove that the sexual contacts

occurred, we should also find that the Government

failed to disprove that Appellant had a reasonable

mistake of fact as to TL’s consent to the sexual

contacts. Again, we do not agree. In order for

Appellant to have the defense, the mistake must be

“reasonable under all the circumstances.” R.C.M.

916(k)(j)(1). TL admittedly was a non-confrontational

person who at the time never explicitly told Appellant

“no” when he touched her sexually without her

consent. But that does not form the basis for a

reasonable and honest mistake of fact under the

totality of the circumstances in this case. Appellant

34a

knew TL was “going abstinent” and that he and she

were “blacklisted” meaning they were strictly platonic

friends. Moreover, TL had already rebuffed Appellant

and impressed upon him that they “are not those

kinds of friends” before Appellant committed the

sexual contacts for which he stands convicted. His

consistent response for his conduct was to apologize

profusely. We also find the facts support that

Appellant touched TL sexually as he did with the

specific intent to gratify his own sexual desires. The

facts do not support Appellant’s contention that he

had an honest or reasonable mistake of fact as to TL’s

consent for the touching and we find the Government

met its burden to disprove as much beyond a

reasonable doubt.

Accordingly, viewing all of the evidence in the light

most favorable to the Prosecution, and drawing every

reasonable inference in the Prosecution’s favor, we

find the convictions for Specifications 2 and 3 of the

Charge alleging abusive sexual contacts of TL to be

legally sufficient because a rational trier of fact could

have found the essential elements of the Article

120(b)(2)(A), UCMJ, offense beyond a reasonable

doubt as to the theory of without consent. Moreover,

we are not clearly convinced that the findings of guilty

were against the weight of the evidence and find the

convictions for these specifications factually

sufficient.

B. Exclusion of Mil. R. Evid. 412 Evidence

1. Law

Mil. R. Evid. 412 is a rule of exclusion which

provides that in any proceeding involving an alleged

sexual offense, evidence of a victim’s sexual behavior

35a

or predisposition is not admissible, subject to three

limited exceptions. United States v. St. Jean, 83 M.J.

109, 113 (C.A.A.F. 2023). The exceptions include:

(1) evidence of specific instances of a

victim’s sexual behavior, if offered to

prove that someone other than the

accused was the source of semen, injury,

or other physical evidence;

(2) evidence of specific instances of a

victim’s sexual behavior with respect to

the person accused of the sexual

misconduct, if offered by the accused to

prove consent or if offered by the

prosecution; and

(3) evidence the exclusion of which would

violate the accused’s constitutional

rights.

Mil. R. Evid. 412(b)(1)–(3).

We review a military judge’s ruling on the

admissibility of evidence for “an abuse of discretion.”

United States v. McElhaney, 54 M.J. 120, 129

(C.A.A.F. 2000). Military judges abuse their discretion

when: (1) their findings of fact “are not supported by

the evidence of record;” (2) they fail “to consider

important facts;” (3) they use “incorrect legal

principles;” or (4) their application of correct legal

principles to the facts is “clearly unreasonable.”

United States v. Commisso, 76 M.J. 315, 321 (C.A.A.F.

2017). “This abuse of discretion standard is a strict

one, calling for more than a mere difference of

opinion—[t]he challenged action must be arbitrary,

36a

fanciful, clearly unreasonable, or clearly erroneous.”

United States v. Hendrix, 76 M.J. 283, 288 (C.A.A.F.

2017) (alteration in original) (internal quotation

marks omitted) (citation omitted).

The military judge may exclude otherwise 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. The Mil. R. Evid. 403 balancing test “is a

rule of inclusion.” United States v. Banker, 60 M.J.

216, 223 (C.A.A.F. 2004).

2. Analysis

Prior to trial on the merits, Appellant’s defense

counsel provided notice to the court-martial of their

intent to offer evidence pursuant to Mil. R. Evid.

412(b)(3) regarding JJ. Mil. R. Evid. 412(b)(3)

provides that such evidence is admissible if its

exclusion “would violate an accused’s constitutional

rights.” This encompasses evidence that may be

“necessary

to

protect

an

accused’s

Sixth

Amendment[7] right to confrontation.” United States

v. Erikson, 76 M.J. 231, 235 (C.A.A.F. 2017) (citing

United States v. Ellerbrock, 70 M.J. 314, 318 (C.A.A.F.

2011)). The evidence they purported was

constitutionally required averred that JJ had made

past false allegations of sexual assault against others,

not the Appellant, of nonconsensual sexual acts,

7 U.S. CONST. amend. VI.

37a

which “tend[ed] to challenge the veracity of JJ’s

allegations against [Appellant].” When evidence of an

alleged victim’s prior accusations of sexual assault is

offered under this theory, it is only admissible if the

prior accusation is shown to be false. Erikson, 76 M.J.

at 234; see also United States v. Velez, 48 M.J. 220

(C.A.A.F. 1998) (finding that the mere filing of a

complaint is not even probative of the truthfulness or

untruthfulness of the complaint filed and thus, it is

not relevant to the question of credibility of a different

complaint in an unrelated case). In denying the

defense motion, the military judge found there was no

evidence that any past allegations made by JJ were

false and such information was not relevant to the

issues addressing the charged offenses. Additionally,

the military judge found that even if the evidence was

marginally relevant, it failed the Mil. R. Evid. 403

balancing test.

Trial defense counsel also provided notice of their

intent to offer evidence pursuant to Mil. R. Evid.

412(b)(2) and (b)(3) regarding TL. Mil. R. Evid.

412(b)(2) provides that evidence of specific instances

of a victim’s sexual behavior with respect to the person

accused of the sexual misconduct, if offered by the

accused to prove consent or if offered by the

prosecution is not generally inadmissible. Appellant

claims statements that TL made to Appellant

describing her past sexual history and that TL and

Appellant had visited a sex store together and while

there they play fought with sex toys were admissible

facts as exceptions pursuant to the Rules. In denying

the defense motion as to the alleged statements, the

military judge opined there was “no evidence that TL

made [these] comment[s] to [Appellant] at the time of

the charged offenses” and found the evidence was not

38a

relevant to the issues of consent or reasonable mistake

of fact as to consent. When addressing whether the

evidence was constitutionally required, the military

judge found that it was not because it did “not tend to

call into question [TL’s] credibility, or the allegations

that she did report to OSI.” With regard to the alleged

conduct of Appellant and TL visiting a sex store and

their actions therein, the military judge similarly

found that the evidence was not “logically relevant to

consent or any other argued theory.” Additionally, in

denying the defense motion, the military judge found

that even if any of this evidence was marginally

relevant, it failed the Mil. R. Evid. 403 balancing test.

Appellant argues the military trial judge abused

his discretion when he ruled the Mil. R. Evid. 412

evidence described supra was inadmissible. We review

a military judge’s ruling on the admissibility of

evidence for “an abuse of discretion.” McElhaney, 54

M.J. at 129. Military judges abuse their discretion

when: (1) their findings of fact “are not supported by

the evidence of record;” (2) they fail “to consider

important facts;” (3) they use “incorrect legal

principles;” or (4) their application of correct legal

principles to the facts is “clearly unreasonable.”

Commisso, 76 M.J. at 321. “This abuse of discretion

standard is a strict one, calling for more than a mere

difference of opinion—[t]he challenged action must be

arbitrary, fanciful, clearly unreasonable, or clearly

erroneous.” Hendrix, 76 M.J. at 288 (alteration in

original) (citation omitted) (internal quotation marks

omitted). Because of the sensitive nature of the

evidence in issue we will not go into any more detail

about the proceedings or the military judge’s rulings

than stated above. We have reviewed the record

thoroughly on the issues and find the military judge

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did not make erroneous findings of fact and properly

applied the correct law, therefore we conclude the

military judge did not abuse his discretion in ruling

the evidence in issue was inadmissible.

C. Ineffective Assistance of Counsel

1. Law

The Sixth Amendment guarantees an accused the

right to effective assistance of counsel. United States

v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001). In

assessing the effectiveness of counsel, we apply the

standard set out in Strick-land v. Washington, 466

U.S. 668, 687 (1984), and begin with the presumption

of competence as stated in United States v. Cronic, 466

U.S. 648, 658 (1984). See Gilley, 56 M.J. at 124

(citation omitted). Claims of ineffective trial defense

counsel are reviewed de novo. United States v.

Palacios Cueto, 82 M.J. 323, 327 (C.A.A.F. 2022)

(citation omitted).

We utilize the following three-part test to

determine whether the presumption of competence

has been overcome:

1. Are the appellant’s allegations true,

and if so, “is there a reasonable

explanation for counsel’s actions”?

2. If the allegations are true, did defense

counsel’s level of advocacy “fall

measurably below the performance . . .

[ordinarily expected] of fallible lawyers”?

3. If defense counsel were deficient, is

there “a reasonable probability that,

absent the errors,” there would have

been a different result?

40a

United States v. Gooch, 69 M.J. 353, 362 (C.A.A.F.

2011) (alteration and omission in original) (quoting

United States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991)).

The burden is on the appellant to demonstrate

both deficient performance and prejudice. United

States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012)

(citation omitted). To overcome the presumption of

competence, appellant must show there were “errors

so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth

Amendment.” Strickland v. Washington, 466 U.S. 668,

687 (1984).

“[C]ourts ‘must indulge a strong presumption that

counsel’s conduct falls within the wide range of

reasonable professional assistance.’” Datavs, 71 M.J.

at 424 (quoting Strickland, 466 U.S. at 689)

(additional citation omitted). We will not second-guess

reasonable strategic or tactical decisions by trial

defense counsel. United States v. Mazza, 67 M.J. 470,

475 (C.A.A.F. 2009) (citation omitted). When

evaluating for prejudice, a “reasonable probability” of

a different result is “a probability sufficient to

undermine [our] confidence in the outcome” of the

trial. Datavs, 71 M.J. at 424 (quoting Strickland, 466

U.S. at 694) (additional citation omitted).

[A] court need not determine whether

counsel’s performance was deficient

before examining the prejudice suffered

by the defendant as a result of the

alleged deficiencies. The object of an

ineffectiveness claim is not to grade

counsel’s performance. If it is easier to

dispose of an ineffectiveness claim on the

ground of lack of sufficient prejudice,

41a

which we expect will often be so, that

course should be followed.

United States v. Scott, 81 M.J. 79, 85 (C.A.A.F. 2021)

(alteration in original) (quoting Strickland, 466 U.S.

at 697) (additional citation omitted).

2. Analysis

Appellant alleges his trial defense counsel were

ineffective for failing to move for reconsideration of

the military judge’s ruling excluding Mil. R. Evid. 412

evidence related to TL and for failing to call a witness

to testify that JJ had made a past false allegation of

sexual assault.

Specifically, after the military judge ruled that

evidence alleging TL had at some point in time made

comments about her prior sexual history was

inadmissible as irrelevant, evidence elicited during

trial indicated that TL claimed at the time of the

charged offenses she had “gone abstinent.” Appellant

now argues that his trial defense counsel should have

re-raised the issue with the court and because they did

not, they were deficient. In their sworn declarations,

trial defense counsel explained that they

contemplated whether to move the military judge to

reconsider his ruling excluding evidence that TL made

statements to Appellant about her prior sexual

history, but because they understood the initial ruling

to be based on the “temporal disconnect between TL’s

statement and the charged offenses,” they believed a

motion for reconsideration would be unsuccessful.

Moreover, trial defense counsel determined that a

motion for reconsideration could draw attention to

TL’s prior consistent statements about deciding to “go

abstinent” and the fact that Appellant not only was

42a

aware of this fact but acknowledged TL’s abstinence

while apologizing for assaulting her.

With respect to Appellant’s allegation that trial

defense counsel were deficient for failing to call a

witness to testify that JJ had made a past false

allegation of sexual assault, we do not agree. Trial

defense counsel explained they did not call the witness

because she was “nervous and anxious” about

testifying. Her demeanor was seemingly, to the

Defense, a strategic advantage. Trial defense counsel

stated they knew “demeanor and delivery” would be

critical to the members’ findings on the merits and

they decided not to call this specific witness because

they “did not want to provide her any advantage in

appearing more composed or credible at trial.” They

believed that calling her in motions hearings “would

have provided her with an early opportunity to

experience testifying.” Trial defense counsel had also

determined that even if the witness testified the way

they wanted her to during the motions hearing, the

testimony might still not be deemed admissible at

trial. Ultimately, they opted to not provide the witness

an opportunity to essentially prepare for her

examination on the merits given their assessment

that even if she provided evidence helpful to the

Defense, it might not be admissible.

We have considered the totality of the

circumstances, the presumption of competence,

Cronic, 466 U.S. at 658, and the declarations of trial

defense counsel. We find trial defense counsels’

decision not to pursue reconsideration of the Mil. R.

Evid. 412 ruling related to TL, and to not call the

witness to testify about alleged false allegations by JJ

were “strategic decision[s] to . . . forego a potential

benefit” and such decisions were “objectively

43a

reasonable.” Datavs, 71 M.J. at 424. After considering

the three Gooch factors, 69 M.J. at 362, we do not find

the presumption of competence was overcome.

Appellant did not meet his burden to demonstrate

deficient performance thus, we decline to analyze

prejudice.

D. Post-Trial Appellate Delay

1. Law

“[C]onvicted servicemembers have a due process

right to timely review and appeal of courts-martial

convictions.” United States v. Moreno, 63 M.J. 129,

135 (C.A.A.F. 2006) (citations omitted). In Moreno, the

CAAF established a presumption of facially

unreasonable delay “where the action of the convening

authority is not taken within 120 days of the

completion of trial,” “where the record of trial is not

docketed by the [CCA] within thirty days of the

convening authority’s action,” or “where appellate

review is not completed and a decision is not rendered

within eighteen months of docketing the case before

the [CCA].” 63 M.J. at 142. In United States v. Livak,

this court adapted the Moreno standard for cases

referred to trial on or after 1 January 2019 and

established an aggregated 150-day standard for

facially unreasonable delay from sentencing to

docketing with the CCA. 80 M.J. 631, 633 (A.F. Ct.

Crim. App. 2020).

Where there is a facially unreasonable delay, we

examine the four factors set forth in Barker, 407 U.S.

at 530: “(1) the length of the delay; (2) the reasons for

the delay; (3) the appellant’s assertion of the right to

timely review and appeal; and (4) prejudice [to the

appellant].” Moreno, 63 M.J. at 135 (citations

omitted). The CAAF identified three types of

44a

cognizable prejudice for purposes of the right to timely

post-trial review: (1) oppressive incarceration; (2)

“particularized” anxiety and concern “that is

distinguishable from the normal anxiety experienced

by prisoners awaiting an appellate decision;” and (3)

impairment of the appellant’s grounds for appeal or

ability to present a defense at a rehearing. Id. at 138–

40 (citations omitted). Where there is no qualifying

prejudice from the delay, there is no due process

violation unless the delay is so egregious as to

“adversely affect the public’s perception of the fairness

and integrity of the military justice system.” United

States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006).

Independent of an appellant’s due process rights,

the Courts of Criminal Appeals have authority to

“provide appropriate relief if [an appellant]

demonstrates error or excessive delay in the

processing of the court-martial after the judgment

was entered . . . .” 10 U.S.C. § 866(d)(2); see United

States v. Valentin-Andino, 85 M.J. 361 (C.A.A.F.

2025).

We review de novo an appellant’s entitlement to

relief for post-trial delay. Livak, 80 M.J. at 633 (citing

Moreno, 63 M.J. at 135).

2. Analysis

Over 18 months have elapsed since Appellant’s

record of trial was originally docketed with this court.

Therefore, under Moreno there is a facially

unreasonable delay. Accordingly, we have considered

the Barker factors and find no due process violation or

prejudice to Appellant. Appellant has not specifically

alleged cognizable prejudice from appellate delay.

Since docketing this case, Appellant has hired civilian

appellate defense counsel, requested 16 enlargements

45a

of time, and both appellate defense counsel and

appellate government counsel have viewed and filed

sealed documents. In Appellant’s sixteenth motion for

enlargement of time, appellate defense counsel stated

that although 570 days will have elapsed from the

date of docketing if the motion was granted, they

required the full enlargement period “to ensure there

is enough time to complete drafting identified

assignments of error and ensure enough time to file

substantial portions of the brief under seal.” This

court granted that motion and Appellant timely filed

his brief with portions of the brief under seal. Amongst

the sealed issues was a claim of ineffective assistance

of counsel. Subsequent to Appellant’s filing of his

issues brief, appellate government counsel filed

motions to compel declarations by Appellant’s trial

defense counsel and further moved this court to

permit the Government to electronically copy and

transmit sealed materials to assist trial defense

counsel in preparing their declarations. They also

requested to file and attach the declarations with this

court under seal. These motions were granted on 13

August 2025. On 18 August 2025, appellate

government counsel filed a motion to file portions of

their answer brief under seal, which we granted. We

note the record of trial is more than 1,200 pages and

includes multiple sealed documents.

Absent prejudice, we find the post-docketing delay

involved in Appellant’s case has not been so egregious

as to adversely affect the perception of the military

justice system. The large majority of the delay was the

result of defense requests for enlargements of time in

which to file the assignments of error. In addition, we

have considered the large size of the record and the

number and complexity of the issues Appellant raised.

46a

Accordingly, we find no egregious delay and no

violation of Appellant’s due process rights, see Toohey,

63 M.J. at 362; nor do we find any relief warranted in

the absence of a due process violation, see 10 U.S.C.

§ 866(d)(2).

CONCLUSION

The findings are correct in law and fact. See

Articles 66(a), (d), UCMJ, 10 U.S.C. § 866(a), (d) (2024

MCM). In addition, the sentence is correct in law and

fact, and no error materially prejudicial to the

substantial rights of Appellant occurred. See 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