United States v. Monge ( 2022 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39781 (f rev)
________________________
UNITED STATES
Appellee
v.
Cion T. MONGE
Staff Sergeant (E-5), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Upon Further Review
Decided 5 July 2022
________________________
Military Judge: Rebecca E. Schmidt; Andrew R. Norton (remand).
Sentence: Sentence adjudged 20 July 2019 by GCM convened at Nellis
Air Force Base, Nevada. Sentence entered by military judge on 12 Au-
gust 2019 and reentered on 8 April 2021: Dishonorable discharge and
hard labor without confinement for 60 days.
For Appellant: Major Mark J. Schwartz, USAF; Captain David L. Bos-
ner, USAF.
For Appellee: Lieutenant Colonel Brian C. Mason, USAF; Major
Cortland T. Bobczynski, USAF; Major Brian E. Flanagan, USAF; Major
Abbigayle C. Hunter, USAF; Mary Ellen Payne, Esquire.
Before JOHNSON, RAMÍREZ, and CADOTTE, Appellate Military
Judges.
Judge RAMÍREZ delivered the opinion of the court, in which Chief
Judge JOHNSON and Judge CADOTTE joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
United States v. Monge, No. ACM 39781 (f rev)
RAMÍREZ, Judge:
A military judge found Appellant guilty, in accordance with his pleas, of
one specification each of indecent visual recording and distribution of an inde-
cent visual recording, both in violation of Article 120c, Uniform Code of Mili-
tary Justice (UCMJ), 10 U.S.C. § 920c;1 and one specification each of wrongful
possession and wrongful use (on divers occasions) of anabolic steroids, both in
violation of Article 112a, UCMJ, 10 U.S.C. § 912a.2
Additionally, contrary to his pleas, a general court-martial composed of of-
ficer and enlisted members found Appellant guilty of one specification of sexual
assault on divers occasions, in violation of Article 120, UCMJ, 10 U.S.C. § 920;
and one specification of assault consummated by a battery,3 in violation of Ar-
ticle 128, UCMJ, 10 U.S.C. § 928. The members sentenced Appellant to a dis-
honorable discharge and 60 days of hard labor without confinement.
Appellant’s case is before us for a second time. In an earlier opinion, this
court remanded the case to the Chief Trial Judge, Air Force Trial Judiciary,
for corrective action, as we found that the convening authority erred by taking
ambiguous and incomplete action on Appellant’s sentence. See United States
v. Monge, No. ACM 39781, 2021 CCA LEXIS 104, at *8 (A.F. Ct. Crim. App. 10
Mar. 2021) (unpub. op.). The convening authority subsequently approved Ap-
pellant’s sentence, resulting in a new entry of judgment.
With this error having been corrected, we now turn to Appellant’s two re-
maining issues on appeal: (1) whether the evidence was legally and factually
sufficient to support his convictions for sexual assault and assault consum-
mated by a battery; and (2) whether Appellant was deprived of his right to a
unanimous verdict as guaranteed by the Sixth Amendment,4 the Due Process
1 All references in this opinion to the punitive articles of the UCMJ are to the Manual
for Courts-Martial, United States (2016 ed.). Unless otherwise noted, all other refer-
ences to the UCMJ and Rules for Courts-Martial (R.C.M.) are to the Manual for Courts-
Martial, United States (2019 ed.) (2019 MCM).
2 Appellant also pleaded not guilty to one specification of sexual assault in violation of
Article 120, UCMJ, 10 U.S.C. § 920, and one specification of indecent broadcasting in
violation of Article 120c, UCMJ, 10 U.S.C. § 920c. Both specifications were withdrawn
and dismissed after arraignment but prior to the conclusion of Appellant’s trial.
3 Appellant was found guilty of the charge, and was found guilty of the specification,
with exceptions. See R.C.M. 918(a)(1)(C).
4 U.S. CONST. amend. VI.
2
United States v. Monge, No. ACM 39781 (f rev)
Clause of the Fifth Amendment,5 and the right to equal protection guaranteed
by the Fifth Amendment.6
We find no material prejudice to a substantial right of Appellant and affirm
the findings and sentence.
I. BACKGROUND
In October 2017, RT, the victim in this case, was 21 years old. Her father
was stationed in Yuma, Arizona. RT lived in Yuma and was attending cos-
metology school.
Appellant joined the military in 2008, and in 2017, was stationed at Nellis
Air Force Base (AFB), Nevada. He started dating KW in January 2017, and
had been living with her since June 2017. In October 2017, Appellant was on
temporary duty (TDY) in Yuma, Arizona.
RT and Appellant met on a dating application called Bumble in early Octo-
ber 2017. When RT contacted Appellant on Bumble, he told her that he was in
the Air Force and in training for about three months at Yuma Proving
Grounds. After messaging each other for approximately two weeks, the two
decided to go on a date and ultimately did so on 19 October 2017. Appellant
was staying in a hotel, and the plan was for the two of them to go to dinner and
then go to Appellant’s hotel for drinks. RT was not planning on spending the
night with Appellant in his hotel room.
The evening started out as planned. RT met Appellant in the parking lot of
Appellant’s hotel between 1800 and 1830 hours and they walked to dinner. The
two had food and drinks for approximately three hours, during which time RT
consumed one or two alcoholic drinks. The two then walked to Appellant’s ho-
tel. Once in Appellant’s hotel room, they opened a bottle of wine, sat on the
couch, listened to music, and talked. During that time RT had one or two
glasses of wine. At some point, while they were on the couch, they started kiss-
ing. In an effort to communicate to Appellant that she was not going to have
sex with him, RT explained to Appellant that she was on her menstrual cycle.
RT then went to the bathroom. Upon returning from the bathroom, RT sat
on the bed. Appellant joined her. RT explained that she “scooted [her]self”
while on her back from the edge of the bed to the head of the bed and that they
began to kiss again. Then, as they were kissing, Appellant pinned RT’s arms
down at the wrists. She felt as if she would not be able to get up and asked
5 U.S. CONST. amend. V.
6 With respect to Appellant’s second issue, we granted Appellant’s Motion for Leave to
File a Supplemental Assignment of Error, which he raises pursuant to United States
v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
3
United States v. Monge, No. ACM 39781 (f rev)
Appellant why he was doing that. Instead of answering her, Appellant began
kissing her neck and began to remove her shorts. RT told Appellant to stop; he
did not stop. She continued to tell him to stop and she tried to keep her shorts
on. Appellant still did not stop. Appellant removed RT’s shorts, then her un-
derwear, and then her tampon. RT then explained, “[H]e had pinned my legs
down in like the frog position, and he had his arms . . . on my legs.”
RT told him, again, to stop. Appellant had RT’s legs “pinned down in an
open position” and then proceeded to perform oral sex on her. According to RT,
Appellant was “[v]ery aggressive” while he performed oral sex on her. She ex-
plained:
[H]e would have his arm, his hands on my legs, and it was to the
point like because he’s very strong, it’s not like I could open or
move my legs or anything, they were pinned down, and he would
go and like he was getting very into it, he would kind of lift his
hand and like slap his hand on my leg and then grasp it again.
And it wasn’t a complete slap because his hand didn’t go back,
he went back to grabbing and he was very aggressive whenever
he was down there licking my vagina and everything. So, it
wasn’t enjoyable. It couldn’t have been enjoyable when I didn’t[7]
want it and two, it was very, very aggressive.
Next, Appellant removed RT’s shirt and bra. RT explained that she did not
help him with their removal. Appellant also removed his shirt and pants. He
used one hand to unbuckle his pants. Once RT’s shirt and bra were removed,
Appellant then “aggressively bit[ her] breasts.” She described Appellant was
also “sucking on them to the point where it was hurting and [she] was saying
ow, this really hurts, stop, it hurts.” RT was in shock and frozen. A few seconds
later, Appellant penetrated RT’s vagina with his penis.
When Appellant penetrated RT’s vagina, it was painful for her. She tried
to push him away by attempting to push her body up. She had her hands on
his arms, trying to push. However, she was unsuccessful as he was stronger
than her, so she “just laid there.” This lasted approximately ten minutes until
Appellant ejaculated. Appellant then got off of RT and grabbed his cell phone.
RT tried to get up, but Appellant grabbed her by her shoulder and told her
7 The trial transcript uses the word “did” instead of “didn’t” and is attached to the
record. See R.C.M. 1114(d). However, the audio recording of the testimony indicates
that RT stated: “It couldn’t have been enjoyable when I didn’t want it and two, it was
very, very aggressive.” As we explained earlier in this opinion, references to the R.C.M.
are to the 2019 MCM. Under these rules, a “substantially verbatim recording” of the
proceedings is part of the record of trial. R.C.M. 1112(b)(1) (emphasis added). As such,
we rely on the audio recording.
4
United States v. Monge, No. ACM 39781 (f rev)
“no.” She stayed on the bed and turned over, facing the wall. She could not fall
asleep. She testified that she was thinking to herself: “I can’t believe this just
happened.”
After several minutes of laying in that position, RT then turned so that her
back was on the bed. Appellant turned on his side, facing her. He then slapped
RT. She explained, “He was sitting, and he had his hand, and he forcefully hit
my face with his hand. So, it was a slap and it had force[ ] to it.” She felt pain
and told Appellant: “Stop, don’t slap me.” However, Appellant slapped her in
the face again and RT started crying. Appellant then said, “I’m sorry, I thought
you meant you liked it.” RT testified that she had “never felt so helpless and
[had] never felt so weak” as when Appellant slapped her.
Appellant then started to kiss RT’s face and she did not reciprocate. He
then got on top of RT again and penetrated her vagina with his penis. When
asked at trial whether she did or said anything to let Appellant know that she
wanted to have sex, she testified that she said “no.” She testified that she just
laid there and that this occurrence only lasted a couple of minutes. Her
memory was:
He had a hard time staying hard, so he would, he was trying to
get his penis hard again by touching it and everything, and even
when it wasn’t hard, he still put it in -- tried to force it inside me.
According to RT, Appellant then gave up further attempts to force his penis
inside of her.
RT explained to the panel members that she did not believe yelling at Ap-
pellant, or being more forceful in telling him to stop, would have stopped him
either time he penetrated her vagina with his penis.
RT explained that at that point, Appellant got up and went to the bath-
room. She testified: “I was thinking when is he going to let me leave.” While
Appellant was in the bathroom, RT looked for her clothes, put them on, and
told Appellant that she was leaving. She then went home, showered, and went
to bed. However, she could not sleep. She explained that she could not sleep
because she “was going over everything in [her] head, and [she] couldn’t believe
everything that had just happened and [she] was just sitting there thinking
about everything.” She was also sending text messages to her friends during
that time, but not about the sexual assault.
RT’s mother testified. She explained that when RT returned home that
night, RT “went directly into the shower.” RT’s mother thought this was
strange, because after going out at night, RT would typically wake up her par-
ents, to tell them about her evening, before going to bed. RT’s mother believed
it was unusual that RT failed to do so on the night in question.
5
United States v. Monge, No. ACM 39781 (f rev)
Although her mother was at home, RT did not immediately tell her what
happened because she was embarrassed. She explained, “I was embarrassed
and I really didn’t know what to do, because I never thought this would actu-
ally happen to me.” She continued, “I mean, you hear stories about it happen-
ing, but when it actually happens to you, it’s . . . .” She did not continue that
thought, but later provided:
I’ve had sex before and I know what it’s like to have consensual
sex and I know what it’s like to enjoy sex and I didn’t enjoy it
and I said no, and I was scared, and I was hurt. He was hurting
me. I was, I said no, and no means no. No means stop. I was . . .
I knew it wasn’t right, whenever it happened, but I felt guilty, I
felt embarrassed, I was trying to convince myself that this
couldn’t have happened to me. But I thought I was meeting a
nice guy and everything was going well. And then I came home,
and I never felt more disgusted. I felt dirty. I felt weak. It was
the worst feeling I’ve ever felt.
The night that gave rise to the allegations in this case was a Thursday night
leading into the early hours of Friday morning. That same Friday, RT noticed
a bite mark on her neck and observed that her breasts “were very badly
bruised.” The next day, Saturday, RT showed her mother the bruising while
RT was changing clothes for a charity event, and briefly told her mother what
had happened to her. However, she did not go into details with her mother
until that Monday. RT’s mother testified that RT “had bruises everywhere but
the most prominent ones” were “in the breast area.” RT also sent Appellant a
picture of the bruising on her breasts and told him that it was not normal.8
Appellant responded by text saying that RT “got really into it.” RT replied with
“okay,” and she “just left it at that.”
Appellant and RT had planned to see each other that Saturday. Instead,
however, RT went to a cancer awareness charity event with her mother—
where she socialized with some of her friends. RT testified that Appellant was
upset with her canceling. RT testified:
He was upset that I didn’t want to hang out with him, and I [sic]
that I had posted on my snap story[9] of pictures with my old high
8 The trial transcript uses the word “abnormal;” however, the audio recording of the
testimony indicates that RT stated: “And I said, this isn’t normal.” Pursuant to R.C.M.
1112(b)(1), we utilize the audio recording.
9 A “snap story” refers to a collection of Snapchat phone messages that play together
in the order in which they were created.
6
United States v. Monge, No. ACM 39781 (f rev)
school friends, because I went to high school in Yuma, and he
responded like oh, this is why you didn’t want to hang out with
me, and he was sending me pretty aggressive texts, and he tried
to FaceTime[10] me once or twice and I declined it.
After Appellant attempted to contact RT that evening, she “blocked” Appel-
lant from being able to call or text her. She also deleted all communications on
her phone between them. She explained that she did not “want to see anything
that had to do with him.”
RT’s mother testified that at the charity event, there were various friends
of RT’s from high school. RT’s mother further testified that instead of meeting
up with those friends, RT stayed near her mother the entire night.
On the Monday following the assault and sexual assault, RT had a pre-
scheduled doctor’s appointment, but spoke with the doctor with regards to
what had occurred with Appellant. Based on what she told the doctor, the doc-
tor ordered a full medical screen for her. Part of the examination included
swabbing RT’s external genital area to collect a sample for DNA analysis. After
the doctor’s visit, RT reported the sexual assault to the police.
The Government called a DNA expert who testified that male DNA was
found on the sample taken from RT’s external genital area. The expert com-
pared this DNA to Appellant’s DNA and provided an expert opinion that “the
source of the DNA from . . . the external genital swab could’ve come from the
referenced [Appellant] or any of his paternally related relatives.”
The police detective assigned to the case met with Appellant and retrieved
a photograph from his phone, specifically, a nude picture of RT. RT did not
know Appellant had taken the picture or that he had sent it to his friend along
with a text stating that RT was “drunk and full of cum.” Appellant’s conduct
led to the convictions for photographing and distributing the private area of
RT, without her consent and under circumstances in which she had an expec-
tation of privacy.
RT did not see Appellant again until the court-martial. Instead of staying
in Yuma, Appellant’s TDY was terminated early and he was sent back to Nellis
AFB, where he was still living with KW. He told KW that he returned because
law enforcement “had found his steroids.” He did not tell KW about the sexual
assault allegations regarding RT. KW did not find out about the sexual assault
allegations until the Air Force Office of Special Investigations (AFOSI) in-
formed her about the allegations. As described below, KW ultimately testified
10 FaceTime is a video-phone product used on Apple products.
7
United States v. Monge, No. ACM 39781 (f rev)
at Appellant’s trial, pursuant to Mil. R. Evid. 413, regarding alleged incidents
of nonconsensual sexual offenses committed by Appellant against KW.
At the court-martial, the panel members convicted Appellant of sexual as-
sault and assault consummated by a battery.
II. DISCUSSION
A. Legal and Factual Sufficiency
Appellant challenges the legal and factual sufficiency of his convictions for
sexual assault and assault consummated by a battery. He starts by arguing
that RT’s description of how Appellant sexually assaulted her was “perplex-
ing,” was “improbable,” and “defies common sense.” Appellant alleges that RT
was telling “blatant lie[s].” He then claims that her in-court testimony was in
conflict with what she told the sexual assault nurse examiner (SANE), a detec-
tive, and her mother. Appellant also argues that RT told her friends that a
recent tattoo hurt but that her actions the night of the sexual assault were not
consistent with her tattoo hurting—and claims this makes her unbelievable.
As to the scientific evidence, Appellant asserts that “no determination could be
made on whether any contact between Appellant and RT was nonconsensual
based on looking analyzing [sic] the DNA evidence.” Finally, Appellant con-
tends that aside from RT not being believable, KW was not believable either.
As discussed below, we disagree.
1. Additional Background
The cross-examination of RT consisted mainly of questions designed to
challenge her credibility—evidence of inconsistencies or of actions consistent
with consent. For example, trial defense counsel asked, “Okay, so he was able
to get his penis into your vagina without using his hand, despite you not want
[sic] it there?” RT replied, “[H]e might have used his hand, I’m not completely
sure.” Trial defense counsel then asked why she did not put her legs back to-
gether once Appellant took his arms off of her legs. RT responded, “Because at
that point, I didn’t really know what to do.” Furthermore, trial defense counsel
asked, “So, he’s in the bathroom with the door closed, you’re fully dressed,
you’ve been through this whole thing, and you don’t leave?” RT responded, “No,
I was in a state of shock. I did not know how to act.”
Also, during cross-examination, RT testified that while she and Appellant
were sitting on the couch and on the bed, the lights were on. During re-direct
examination, RT testified that she believed the hotel room was lit with lamps
and they were dimly lit, but that she could still see everything in the room. An
expert called by trial defense counsel testified that the auto flash feature was
enabled on Appellant’s phone, that Appellant took a photograph at some point
during the night, and that the flash was activated.
8
United States v. Monge, No. ACM 39781 (f rev)
The SANE who examined RT also testified. The SANE documented 22 in-
juries to RT, with two of them being attributed to RT’s dog. Aside from the
injuries, the SANE testified as to what RT told her about the assault and sex-
ual assault. The SANE’s written report was not as detailed as RT’s trial testi-
mony.
Appellant also claims that inconsistencies between RT’s testimony and that
of her mother calls RT’s credibility into question. Despite RT’s mother testify-
ing that RT was always within her vicinity during the Saturday charity event,
cross-examination of RT’s mother included text messages between RT and her
mother, in which the mother was looking for RT during that event.
The DNA expert also confirmed that while the DNA swabs taken from RT’s
genital area were consistent with Appellant’s DNA, there was another male’s
DNA present. However, the expert explained that the second DNA profile was
so small that there was “insufficient DNA” to obtain results, and that “[t]here
was not enough genetic information available in the profile that [the expert]
developed to be able to make an inclusion or exclusion comparison for” that
DNA profile.
Pursuant to Mil. R. Evid. 413, the Prosecution called KW as a witness for
the purposes of providing the panel members evidence that Appellant commit-
ted uncharged sexual offenses as evidence of propensity to engage in sexual
assault.
KW met Appellant at a CrossFit gym in October 2016. They soon started
dating and moved in together. They stopped dating, and KW moved out, in
November 2017, after AFOSI informed her about the allegations regarding RT.
KW testified that in early October 2017, while they were still dating and
living together, Appellant went out drinking. When he got home, KW was
woken up by Appellant kissing her and taking her clothes off. She told him “no”
several times, and that she did not want to have sex. Appellant nonetheless
took KW’s clothes off and had sex with her, without her permission. She was
on her back and Appellant was on top of her.
Shortly after this incident, Appellant went to Arizona where he had the
encounter with RT that was the subject of his court-martial.
When Appellant returned from Arizona back to his duty station in Nevada,
and while still living with KW, he had a house party. At the end of the night,
KW went to bed. Appellant did not. However, at some point later that night,
KW woke up to Appellant entering their bedroom. He undressed, got into bed,
and then “started to stick his hands in [her] pants.” KW told him that she did
not want to do that and wanted to go to sleep. Appellant nonetheless took KW’s
pants off and had sex with KW without her consent. She told him “no” on more
than one occasion.
9
United States v. Monge, No. ACM 39781 (f rev)
When AFOSI first spoke with KW, she told them that Appellant had not
sexually assaulted her. She testified that she was not truthful with AFOSI
“[b]ecause she cared for him and [she] didn’t want to do anything that would
hurt him and [she] was embarrassed and scared.” She also explained that Ap-
pellant had told her not to talk to AFOSI, that she was afraid of his physical
strength, and that she was afraid of what he might do to her if she told AFOSI
that he sexually assaulted her. In her words, she testified, she was “scared
sh[**]less.”
To put this evidence in context, the military judge instructed the panel
members:
You have heard testimony from [KW] that the accused may have
sexually assaulted her on two occasions. The accused is not
charged with these offenses. You may consider [KW]’s testimony
for its tendency, if any, to show the accused’s propensity to en-
gage in the act alleged in Specification 1 of Charge I.[11]
However, evidence of another sexual offense, on its own, is not
sufficient to prove the accused guilty of a charged offense. You
may not convict the accused solely because you believe he com-
mitted another sexual offense or offenses or solely because you
believe the accused has a propensity to engage in sexual of-
fenses. Bear in mind that the [G]overnment has the burden to
prove beyond a reasonable doubt that the accused committed
each of the elements of each charged offense.
As to consent relating to RT, the military judge instructed the panel mem-
bers as to the definition of consent, as well as the defense of consent, as follows:
The evidence has raised the issue of whether [RT] consented to
the sexual conduct listed in Specification 1 of Charge I. All of the
evidence concerning consent to the sexual conduct is relevant
and must be considered in determining whether the [G]overn-
ment has proven the elements of the offense. Stated another
way, evidence the alleged victim consented to the sexual con-
duct, either alone or in conjunction with the other evidence in
this case, may cause you to have a reasonable doubt as to
whether the [G]overnment has proven every element of the of-
fense.
11 Specification 1 of Charge I is the sexual assault charge alleging that Appellant “com-
mit[ted] a sexual act upon [RT], to wit: penetrating her vulva with his penis, by causing
bodily harm to [RT], to wit: penetrating her vulva with his penis, without her consent.”
10
United States v. Monge, No. ACM 39781 (f rev)
The military judge also provided the following instruction regarding mis-
take of fact:
The evidence has raised the issue of mistake of fact in relation
to the offense of sexual assault, as alleged in Specification 1 of
Charge I. There has been evidence tending to show that, at the
time of the alleged offense, the accused mistakenly believed that
[RT] consented to the sexual conduct alleged concerning this of-
fense.
Mistake of fact is a defense to [that] charged offense. “Mistake
of fact” means that the accused held, as a result of ignorance or
mistake, an incorrect belief that the other person consented to
the sexual conduct.
The ignorance or mistake must have existed in the mind of the
accused and must have been reasonable under all the circum-
stances. To be reasonable, the ignorance or mistake must have
been based on information, or lack of it, that would indicate to a
reasonable person that the other person consented to the sexual
conduct. Additionally, the ignorance or mistake cannot be based
on the negligent failure to discover the true facts.
2. Law
We review issues of legal and factual sufficiency de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (citation omitted).
The test for legal sufficiency of the evidence is “whether, considering the
evidence in the light most favorable to the prosecution, a reasonable factfinder
could have found all the essential elements beyond a reasonable doubt.” United
States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987) (citation omitted). As we re-
solve “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).
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.” Turner, 25 M.J. at 325. We take “a fresh, impartial look at the evi-
dence,” applying “neither a presumption of innocence nor a presumption of
guilt” to “make [our] own independent determination as to whether the evi-
dence constitutes proof of each required element beyond a reasonable doubt.”
Washington, 57 M.J. at 399.
In order to find Appellant guilty of sexual assault, in violation of Article
120, UCMJ, as alleged in Specification 1 of Charge I, the panel members were
required to find the following beyond a reasonable doubt: (1) that at or near
11
United States v. Monge, No. ACM 39781 (f rev)
Yuma, Arizona, on divers occasions, on or about 19 October 2017, Appellant
committed a sexual act upon RT, to wit: penetrating her vulva with his penis;
and (2) that he did this by causing bodily harm to RT, to wit: penetrating her
vulva with his penis, without her consent. See Manual for Courts-Martial,
United States (2016 ed.) (2016 MCM), pt. IV, ¶ 45.b.(3)(b).
In order to find Appellant guilty of assault consummated by a battery, in
violation of Article 128, UCMJ, as alleged in the Specification of Charge II, the
panel members were required to find the following two elements beyond a rea-
sonable doubt: (1) that at or near Yuma, Arizona, on or about 19 October 2017,
Appellant did bodily harm to RT, to wit: by striking RT on her legs and face
with his hands, removing RT’s clothing with his hands, and biting RT on her
breasts with his teeth; and (2) that the bodily harm was done with unlawful
force or violence.12 See 2016 MCM, pt. IV, ¶ 54.b.(2).
3. Analysis
As the incidents that give rise to the criminal allegations occurred as one
course of conduct, we will address the sexual assault and assault consummated
by a battery specifications together. Notably, Appellant does not allege a lack
of evidence for purposes of the sufficiency of the evidence. Instead, he argues
that the named victim, RT, cannot be believed, going so far as referring to some
of her testimony as a “blatant lie.” Appellant challenges RT’s credibility and
argues that the version of events described by RT was physically improbable.
And because her testimony cannot be trusted, Appellant continues, the sexual
assault and assault consummated by a battery specifications fail a sufficiency
review. As outlined below, we disagree.
Considering the standard for legal sufficiency, based on RT’s testimony,
there was sufficient evidence before the fact-finder that Appellant had vaginal
sex with RT, that it occurred twice in his hotel room in Yuma, Arizona, on or
about 19 October 2017, that Appellant held her down against her will, that she
told him “no,” that Appellant penetrated RT’s vulva with his penis without
RT’s consent, and that any mistake of fact was unreasonable. This is just as
correct regarding RT’s testimony concerning the assault consummated by a
battery. RT testified that Appellant struck her legs, bit her breasts, that it
hurt, that she cried, and that Appellant apologized. Drawing every reasonable
inference from the evidence of record in favor of the Government, we conclude
12 The panel found Appellant guilty of Charge II. The Specification alleged that Appel-
lant “did at or near Yuma, Arizona, on or about 19 October 2017, unlawfully strike
[RT] on her legs and face with his hands, unlawfully remove [RT]’s clothing with his
hands, and unlawfully bite [RT] on her breasts with his teeth.” The panel found Ap-
pellant guilty with exceptions, specifically, by excepting the words “and face” and “un-
lawfully remove [RT’s] clothing with his hands.”
12
United States v. Monge, No. ACM 39781 (f rev)
the evidence was legally sufficient to support Appellant’s convictions, as to both
specifications at issue, beyond a reasonable doubt.
As to factual sufficiency, we address each argument raised by Appellant
and ask ourselves if we are convinced of Appellant’s guilt beyond a reasonable
doubt. These arguments include allegations that RT’s testimony was partially
contradicted by testimony given by a digital forensics expert, her mother, a law
enforcement officer, and the SANE. Appellant also claims DNA evidence could
not point to guilt, Snapchat messages call RT’s veracity into question, and
KW’s testimony is unreliable.
Appellant first argues RT is not believable because she testified that the
lights were on in Appellant’s hotel room while she was being sexually as-
saulted. According to Appellant, a digital forensics expert contradicted RT’s
testimony, because Appellant took a cell phone picture of RT in the hotel room
and his phone camera’s flash automatically turned on. Appellant argues that
the hotel room was “pitch black.” Appellant twice uses this phrase in his brief,
with no factual support in the trial transcript. Instead, the expert testified that
“there’s a sensor on the phone in the camera that reads the ambient lighting
in the room and when it reaches a certain level of darkness, then it would au-
tomatically fire.” However, the expert was clear that he was “not sure what the
actual level would be,” but noted “that’s how the function operates.” On the
other hand, RT testified that she believed the hotel room did not have an over-
head light, and that the room was lit with lamps. She explained that “[i]t was
dim lighting, but you could still see everything.” We find no meaningful con-
tradiction between RT’s testimony and the testimony given by the digital fo-
rensic expert.
Appellant next argues we should not believe RT because of alleged differ-
ences between her testimony and that of her mother. The first example of this
alleged inconsistency is the timing of RT telling her mother about the sexual
assault. On direct examination, RT testified that while she was changing to
get ready for the charity event—which was on Saturday—she asked her
mother to come into her room. She stated that her mother saw her injuries and
asked how RT got them. RT testified that she told her mother she got them
“[f]rom that night.” She further testified that her mother asked whether RT
had “wanted it,” and that RT said she had not. RT finally explained that she
did not provide any further details to her mother about the incident until Mon-
day. During cross-examination, RT explained that she went straight home af-
ter the assaults and did not tell her mother what happened. She also testified,
regarding whether she told her mother what had happened: “She saw my body,
and I told her what happened.” Trial defense counsel asked, “And that was on
Friday,” to which RT responded, “Yes.” We find that the essence of RT’s testi-
mony was that she initially told her mother about the sexual assault—without
going into detail—when her mother saw her injuries while RT was changing
13
United States v. Monge, No. ACM 39781 (f rev)
clothing to go to the charity event. We do not find the distinction between days
of the week critical to RT’s believability as to the sexual assault or the assault
consummated by a battery. As to the remaining issues Appellant raises regard-
ing RT’s mother’s testimony, we similarly do not find that they cast doubt on
RT’s version of events.
Appellant also argues we should not believe RT because of alleged differ-
ences between her testimony and that of law enforcement witnesses. The first
set of perceived inconsistencies centers around the timing of Appellant slap-
ping RT and the timing of Appellant using the bathroom. We do not find these
perceived inconsistencies critical, as they do not cast doubt as to their occur-
rence. Put another way, Appellant seems to accept that these factual assertions
occurred, but claims that because the timing is different between RT’s in-court
testimony and hearsay testimony of a law enforcement officer, that we should
believe that neither of these two versions occurred. We are not convinced. Ad-
ditionally, the trial transcript does not support any specific timing conflict. The
next set of perceived inconsistencies centers around some sort of alleged agree-
ment between Appellant and RT that the injury to her breast was not abuse.
According to Appellant, RT told the detective investigating the allegation that
she and Appellant “agreed Appellant did not actually abuse her.” This is prob-
lematic for two reasons. First, there is no support in the record for any such
agreement. Second, RT was clear in her testimony that she sent Appellant a
picture of the bruise on her breast, that Appellant responded by claiming that
RT “got really into it,” and she “just said okay, and then [she] just left it at
that.” The remainder of the perceived inconsistencies with the detective sur-
round timing issues, double hearsay regarding what RT told the detective that
she told her mother, and RT’s desire not to report the incident. None of these
arguments make RT less credible. They demonstrate that neither testimony
nor memories are perfectly consistent.
Appellant further argues we should not believe RT because of two issues
concerning the SANE. First, Appellant claims that RT did not tell the SANE
everything that RT told the panel members. Put another way, RT was more
specific in her testimony when compared to the SANE’s written report. Second,
Appellant argues the SANE could not tell how old the bruises on RT’s body
were, could not determine the source of the bruises, and could not testify as to
whether the sex was consensual or non-consensual. As to the first issue—that
RT did not tell the SANE everything that she told the panel—we again find
this to be insufficient to cast doubt on RT’s testimony. We attribute this to the
information elicited during the examination being more abbreviated and for a
different purpose than trial testimony. As to the second issue, we find this to
be a product of the limits of what this type of examination can actually provide
in many cases, rather than an issue of RT’s testimony.
14
United States v. Monge, No. ACM 39781 (f rev)
Appellant further argues we should not believe RT because—he claims—
Snapchat messages and text messages, as well as photographs at the charity
event, contradict her trial testimony. However, the photographs at issue depict
RT at the charity event away from her mother—which contradicts the testi-
mony of RT’s mother’s, not that of RT. As to the Snapchat messages, one set of
them—sent late at night—actually supports her testimony that she could not
sleep the night of the sexual assault. The other set of messages shows a sexual
assault victim not wanting to participate in the judicial process, which we find
under the circumstances does not impact the credibility of her testimony. Fi-
nally, there are messages about her recent back tattoo hurting. Appellant does
not explain how this makes RT less credible.
Appellant also attacks the relevance of the DNA evidence. This argument
is three-fold. First, Appellant claims that there were possibly two male contrib-
utors to the DNA found in a swab of RT’s genital area. However, this argument
carries little weight; Appellant’s position at trial and on appeal is that the sex
was consensual. Second, Appellant argues that the DNA could not distinguish
between touching, sexual activity, or any other form of contact. Again, this ar-
gument is of little significance, given Appellant’s argument that sex occurred,
but was consensual. Third, Appellant argues that the DNA cannot prove that
the contact was non-consensual. However, the Prosecution did not argue at
trial that the DNA proved or even tended to show lack of consent.
Finally, Appellant challenges the factual sufficiency of his sexual assault
and assault convictions by claiming KW was not credible. Appellant claims
that she should not be believed because she initially told AFOSI that Appellant
had not sexually assault her and waited until right before Appellant’s court-
martial to come forward. He also claims that when he and KW lived together,
he was still married to someone else, and KW was angry because he had lied
to her. Appellant also argues that KW was angry because the sexual assault
allegations by RT happened while Appellant was still living with KW. Finally,
according to Appellant, KW should also not be believed because he kept their
dog after KW broke up with him, and this made her angry. We do not know—
and need not determine—whether the members found KW’s testimony credi-
ble. Appellant does not allege on appeal that the military judge abused her
discretion in admitting KW’s testimony. Regardless of how the members
weighed KW’s testimony, such a determination would not change our inde-
pendent determination of the factual sufficiency of Appellant’s convictions.
We have made allowances for not having personally observed the wit-
nesses, we have weighed the evidence in the record of trial, we have considered
the inconsistencies as pointed out by Appellant, and we are convinced of Ap-
pellant’s guilt beyond a reasonable doubt. Accordingly, we find his convictions
factually sufficient.
15
United States v. Monge, No. ACM 39781 (f rev)
B. Unanimous Verdict
Appellant argues that he was deprived of his right to a unanimous verdict
as guaranteed by the Sixth Amendment, the Due Process Clause of the Fifth
Amendment, and the right to equal protection guaranteed by the Fifth Amend-
ment. We have carefully considered this issue, and find it warrants neither
further discussion nor relief. See United States v. Anderson, No. ACM 39969,
2022 CCA LEXIS 181, at *50–57 (A.F. Ct. Crim. App. 25 Mar. 2022) (unpub.
op.) (finding unanimous court-martial verdicts not required); see also United
States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987).
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. Ar-
ticles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the find-
ings and the sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
16