United States v. Horne ( 2021 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39717
________________________
UNITED STATES
Appellee
v.
Brandon M. HORNE
Staff Sergeant (E-5), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 27 May 2021
________________________
Military Judge: Mark F. Rosenow.
Approved sentence: Dishonorable discharge and reduction to E-4. Sen-
tence adjudged 7 December 2018 by GCM convened at Fort George G.
Meade, Maryland, and Joint Base Anacostia-Bolling, District of Colum-
bia.
For Appellant: Major Mark J. Schwartz, USAF; Carol A. Thompson, Es-
quire.
For Appellee: Lieutenant Colonel Brian C. Mason, USAF; Major Peter
F. Kellett, USAF; Major Dayle P. Percle, USAF; Mary Ellen Payne, Es-
quire.
Before J. JOHNSON, LEWIS, and D. JOHNSON, Appellate Military
Judges.
Senior Judge LEWIS delivered the opinion of the court, in which Judge
D. JOHNSON joined. Chief Judge J. JOHNSON filed a separate dissent-
ing opinion.
________________________
This is an unpublished opinion and, as such, does not serve as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. Horne, No. ACM 39717
LEWIS, Senior Judge:
A general court-martial composed of officer and enlisted members convicted
Appellant, contrary to his pleas, of one specification of sexual assault of JC 1 by
causing bodily harm in violation of Article 120, Uniform Code of Military Jus-
tice (UCMJ), 10 U.S.C. § 920. 2 The court-martial sentenced Appellant to a dis-
honorable discharge and reduction to the grade of E-4. The convening authority
approved the adjudged sentence.
Through counsel, Appellant raises five assignments of error: 3 (1) whether
trial counsel and the special victims’ counsel (SVC) created an appearance of
unlawful influence by interfering with the attempt by the Air Force Office of
Special Investigations (AFOSI) to interview JC’s spouse; (2) whether Appel-
lant’s conviction on a theory of sexual assault that was not charged violated
his right to due process; (3) whether the military judge abused his discretion
by allowing irrelevant evidence of JC’s level of intoxication; (4) whether the
evidence is legally and factually insufficient; and (5) whether the military
judge erred by precluding cross-examination of JC under Mil. R. Evid. 412 re-
garding other sexual behavior with Appellant. 4
In addition, Appellant personally requests this court consider 16 issues
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), some of
which overlap with the assignments of error. The issues include: (6) whether
the staff judge advocate’s addendum failed to adequately address legal errors
and provided incomplete advice; (7) whether the mandatory dishonorable dis-
charge is cruel and unusual punishment under the Eighth Amendment, 5 given
the specific employment implications; (8) whether the military judge erred in
denying a motion to suppress Appellant’s blood alcohol content results; (9)
whether the military judge erred in denying a defense mistrial request or failed
to grant other meaningful relief in order to accurately frame the impact of JC’s
1 JC was an active duty member of the Air Force throughout the relevant period of
time, including during Appellant’s trial.
2 All references in this opinion to the Uniform Code of Military Justice (UCMJ), Mili-
tary Rules of Evidence, and Rules for Courts-Martial (R.C.M.) are to the Manual for
Courts-Martial, United States (2016 ed.).
3 We reworded the assignments of error and the issues personally raised by Appellant.
4 The trial transcript, appellate exhibits, and briefs addressing this issue were sealed
pursuant to R.C.M. 1103A. 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. 1103A(b)(4).
5 U.S. CONST. amend. VIII.
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United States v. Horne, No. ACM 39717
level of intoxication on her alleged lack of consent; (10) whether the AFOSI
erred by failing to adequately obtain an evidence extraction of JC’s phone; (11)
whether the military judge’s Mil. R. Evid. 412 ruling restricted Appellant’s
Sixth Amendment 6 right to confront JC through cross-examination; (12)
whether the conviction was factually and legally insufficient for additional rea-
sons; (13) whether the military judge erred in denying the motion for mistrial
based on unlawful command influence or unlawful influence; (14) whether the
AFOSI erred in failing to conduct an interview with JC’s husband; (15)
whether absent witnesses contributed to an unfair trial; (16) whether the
AFOSI erred in conducting their investigation; (17) whether the AFOSI erred
by not collecting and/or testing evidence mentioned by JC and in the Govern-
ment’s possession; (18) whether the AFOSI erred by sharing false information
with JC which caused unreasonable fear, panic, and inaccurate reporting; (19)
whether trial counsel engaged in prosecutorial misconduct; (20) whether there
was bias in the investigation; and (21) whether substantial and consistent er-
rors cumulatively resulted in an unfair trial.
Regarding issues (6), (8)–(10), and (13)–(20), we have carefully considered
Appellant’s contentions and find they do not require further discussion or war-
rant relief. See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987).
Regarding issue (7), we find the issue to be without merit for the reasons
we announced in United States v. Rita, ___ M.J. ___, No. ACM 39614, 2020
CCA LEXIS 238, at *5–7 (A.F. Ct. Crim. App 17 Jul. 2020), rev. denied, 80 M.J.
363 (C.A.A.F. 2020).
We combine assignment of error (4) and issue (12) though we will limit our
assessment of legal and factual sufficiency to the evidence produced at trial.
United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993) (citations omitted).
We combine assignment of error (5) and issue (11). We assume without de-
ciding that the military judge’s ruling limiting the cross-examination of JC was
influenced by an erroneous view of the law and was an abuse of discretion.
However, we find the assumed error was harmless beyond a reasonable doubt
so relief is not warranted.
Regarding issue (21), we find no relief warranted for cumulative error. “The
implied premise of cumulative error doctrine is the existence of errors, ‘no one
perhaps sufficient to merit reversal, [yet] in combination [they all] necessitate
the disapproval of a finding’ or sentence.” United States v. Gray, 51 M.J. 1, 61
(C.A.A.F. 1999). We do not find the errors identified in this opinion, when con-
sidered together, necessitate the disapproval of the findings or sentence.
6 U.S. CONST. amend. VI.
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United States v. Horne, No. ACM 39717
Additionally, we consider the issues of facially unreasonable post-trial and
appellate delay. We find no error materially prejudicial to Appellant’s substan-
tive rights and affirm the findings and sentence.
I. BACKGROUND
A. Events Before the Trip to Germany
The offense in this case occurred on 11 July 2017 while Appellant and JC
were on a temporary duty assignment to Germany. The parties at trial went
to great lengths to elicit evidence that would portray Appellant and JC in par-
ticular ways prior to the trip to Germany. For example, the Government ques-
tioned witnesses about the nature of Appellant’s and JC’s prior interactions
which tended to show Appellant was attracted to JC. The Defense attempted
to show that JC was aware of Appellant’s interest in her before the trip and
had been told that she might have sent Appellant mixed signals. The Defense
also attempted to show that JC knew she was pregnant before the trip. The
Defense’s theory was that JC drank large amounts of alcohol, despite knowing
she was pregnant, had consensual sexual intercourse with Appellant, then saw
blood on the bedsheets afterwards and concluded she was having a miscar-
riage. To support this theory, the Defense tried to show that JC concealed prior
alcohol use from her husband and that her husband had been cheated on by
his ex-wife. Given these circumstances, some background on the events prior
to the Germany trip is necessary before explaining what the evidence showed
occurred on the night of the offense.
In early 2017, Appellant and JC were members of the same unit and sta-
tioned at Fort George G. Meade, Maryland. JC and Appellant worked in the
same office, interacted on a regular basis, and got along well. JC knew that
Appellant was married. JC was also married. JC’s husband, Technical Ser-
geant (TSgt) BC, was also stationed at Fort Meade, but in a different unit.
Staff Sergeant (SSgt) CM was a male co-worker and a friend of JC’s. JC
and TSgt BC attended church with SSgt CM and his wife and at times the four
of them would go to lunch afterwards. SSgt CM did not know Appellant very
well but observed him interacting with JC on a daily basis. SSgt CM testified
Appellant “exhibited some attraction” to JC but it was “all nuanced” and not
“overt.” SSgt CM found it “important enough” to mention it to JC. SSgt CM
testified that JC’s response was that she had not noticed it so SSgt CM told JC
it was something she should pay attention to. SSgt CM recalled telling JC that
she might be sending Appellant “mixed signals.” SSgt CM explained that JC’s
“a socially graceful person. She’s genuinely likable by most people, I believe, so
some people may interpret those signals differently or incorrectly, even.” SSgt
CM stated that he did not see JC display any of the same behavior towards
Appellant that Appellant displayed towards JC.
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United States v. Horne, No. ACM 39717
JC testified that she recalled a conversation with SSgt CM where she was
told Appellant was looking at her inappropriately and saying things about her
with inappropriate connotations. JC explained that she thanked SSgt CM and
told him that she did not think Appellant meant anything by it. JC did not
recall SSgt CM telling her that he was concerned that she was giving Appellant
mixed signals, only that Appellant was acting inappropriately.
In February or March 2017, JC and SSgt CM went on a temporary duty
assignment to Georgia with other members of the unit. SSgt CM remembered
JC having a beer at dinner and that JC asked SSgt CM not to say anything to
her husband about it. JC recalled the temporary duty assignment to Georgia
with SSgt CM. However, she did not recall asking SSgt CM not to tell TSgt BC
that she drank a beer.
SSgt CM also testified about how JC felt towards TSgt BC’s ex-wife. SSgt
CM explained that as far as he understood it, JC “kind of held a lot of animos-
ity” toward her husband’s ex-wife and that it related to the ex-wife’s infidelity
which had hurt TSgt BC. SSgt CM testified that JC “never went into depth”
and he “never asked questions” but the infidelity weighed heavily on TSgt BC,
and JC “absolutely” wanted to be a good spouse. JC confirmed in her testimony
that TSgt BC had been married before and that the infidelity of TSgt BC’s ex-
wife was an issue in that marriage. JC did not recall telling SSgt CM about the
infidelity of TSgt BC’s first wife or that she wanted to be a “good wife” because
of this.
In April 2017, JC experienced a miscarriage approximately six weeks into
a pregnancy. In her testimony, JC denied that “shortly after” the miscarriage
she and TSgt BC began trying again to get pregnant or that she told SSgt CM
that she was actively trying to conceive. JC testified that she “thought” she
was going to start her menstrual cycle while she was in Germany, and she
could have been starting it “maybe a day late.”
However, SSgt CM agreed in his testimony that sometime prior to the Ger-
many trip JC indicated to him that she “thought” she was pregnant. According
to SSgt CM, JC did not say why, and he did not ask questions. SSgt CM knew
that JC and TSgt BC were “hoping to have a child” and “they had the misfor-
tune of a miscarriage earlier in that year, and so she was very excited.” SSgt
CM thought, “[S]he just wanted to express that to me, since she was friends
with my wife and [me].”
The Friday before the Germany trip, JC, Appellant, and another SSgt from
the office went to a unit going away. JC was running late as she wrapped up
mission-related work. JC testified that Appellant said to her, “[I]f you don’t
hurry your cute little butt up, I’m going to pick you up and I’m going to carry
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United States v. Horne, No. ACM 39717
you out of the squadron.” JC testified the comment took her by surprise and it
was “a little strange” but she did not think too much of it.
JC was also asked if Appellant made a comment about her vehicle that
seemed out of the ordinary to her. JC described a time where she was on a
temporary duty assignment with Appellant where he told her that he remem-
bered her from Goodfellow Air Force Base (AFB), Texas. JC explained that she
was at Goodfellow AFB for three months in 2013. JC remembered Appellant
telling her that he remembered her because she “was a cute blond girl driving
a black two-door BMW.” JC did not know that Appellant had been at Goodfel-
low AFB at the same time she was. She thought his comment was odd at the
time, but she did not think too much about it. JC did not testify as to when
Appellant made this comment to her.
B. Events in Germany
In July 2017, JC, Appellant, SSgt CM, and two female members of the same
unit, Senior Airman (SrA) CB 7 and LC 8 travelled to Germany. Everyone stayed
in the same off-base hotel with the exception of SSgt CM; he stayed in a differ-
ent hotel nearby. JC and Appellant had rooms on the third floor of the hotel;
SrA CB and LC had rooms on the fourth floor. The group arrived in Germany
on 9 July 2017. After checking in to their hotels, the group—except for SSgt
CM—had dinner together at a restaurant in a nearby town. When they re-
turned to the hotel, SrA CB and LC returned to their rooms while JC and Ap-
pellant had a drink together at the hotel bar. After one drink, JC and Appellant
each returned to their respective rooms.
On 10 July 2017, the group spent most of the duty day at Ramstein Air
Base (AB). They returned to their respective hotels in the afternoon. In the
evening, JC, Appellant, SrA CB, and LC again went out for dinner and then to
a “beer garden.” JC was wearing jeans and a tank top and had a coat with her.
Everyone in the group was drinking alcohol. For her part, JC drank a beer with
dinner and another at the beer garden. She described the beers as “full glasses,
very large glasses.” The group then returned to the hotel and began playing a
drinking game on the back patio. On the back patio, Appellant got and paid for
one of JC’s drinks, a double shot of vodka and cranberry mixed drink. JC tes-
tified this drink was in “a tall glass as well.” At that point, JC “felt fine” and
was having “a great time.” JC went back for a refill of the same drink Appellant
had bought her.
7 SrA CB was a staff sergeant (E-5) at the time of Appellant’s trial.
8 LC was an active duty member of the Air Force throughout the relevant period of
time, including during Appellant’s trial.
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United States v. Horne, No. ACM 39717
While the group was on the back patio, JC sent a text message to her hus-
band that read: “Falling asleep… I love you babe.. text me in the morning[.]”
LC saw the message and testified she “kind of called [JC] out on it because
[LC] thought it was strange.” LC testified that JC’s reply to her was that “it
was better this way.” JC testified that after she sent the text to her husband,
the group was “continuing on and having a good time” so she decided to stay
up. JC remembered ordering a third double shot of vodka and cranberry mixed
drink and thought she might have had some beer though she was “not 100
percent sure.”
At some point, the hotel closed the back patio, so the group moved to the
front patio outside the main entrance to the hotel. 9 There they continued drink-
ing alcohol and socializing among themselves, as well as with several male ho-
tel guests who joined the group on the front porch. JC recalled this in general
and was “sure we had conversations with them, socializing” but JC did not
recall any details. SrA CB did. SrA CB recalled the male hotel guests having a
bottle of vodka which they shared, and that JC took “two or three shots” and
Appellant had about the same. SrA CB recalled JC speaking to the male guests
in French and in English with a French accent, and moving to sit closer to
them. SrA CB opined that it looked like JC was seeking attention from others
and appeared to be intoxicated, like everyone else.
LC testified about how close she was to the others in the group and whether
she had seen any of them drunk before. LC was close friends with Appellant
and was confident traveling with him because they had traveled before. LC
had seen Appellant drunk before and stated he would become quiet when he
drank. LC worked in the same office with JC, but they did not socialize outside
of work. LC only knew SrA CB from this trip.
LC also testified about how intoxicated everyone was and to JC’s behavior
on the front patio. LC recalled that she and SrA CB were “clearly less intoxi-
cated” than JC. LC also testified that she knew Appellant “was drunk.” Re-
garding JC’s alcohol consumption LC estimated that JC had a total of “at least
three, possibly four” double vodka cranberry drinks. LC believed that JC had
“at least three shots of the vodka” on the front patio with the male guests. 10
Regarding JC’s behavior, LC agreed that JC said some nonsensical things on
the front patio and was “very engaged with the strangers” and spoke with an
accent at one point. LC had never seen JC drunk before and it took her a little
9 The front patio area was video recorded by a hotel security camera. The security
footage is in the record of trial but was not admitted into evidence. Two witnesses
testified to small portions of the security footage.
10 A witness who viewed the front patio security footage testified that it showed Appel-
lant and JC doing multiple shots of alcohol and consuming other “beverages.”
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United States v. Horne, No. ACM 39717
while to realize how drunk JC was. LC remembered JC being “very, very
friendly with everybody” and “[u]ninvited, she came over and sat on [her] lap.”
LC was uncomfortable and then JC turned around and straddled LC.
At one point SrA CB left the front patio for the hotel lobby restroom. JC
also entered the restroom while SrA CB was in it. SrA CB testified that JC told
her about a miscarriage that JC had and that “[she] and her husband were
trying for children and that she was a day late for her period.” SrA CB had
never had a personal conversation with JC like this and remembered JC was
crying. SrA CB recalled LC coming into the bathroom to find them because the
two had been gone for a while. LC testified that she went to check on SrA CB
and JC to see if they were okay because they had been gone for a while.
Once inside the bathroom, LC explained that JC was crying and pretty up-
set, and SrA CB was trying to console JC. LC believed JC was intoxicated be-
cause her speech was slurred, she had exhibited a lot of back and forth mood
swings, and she was “a little wobbly.” Regarding JC’s mood swings, LC ex-
plained that JC seemed “really happy” while on the front patio, “really sad
while she was in the bathroom,” and “happy again” when she came back to the
front patio.
While the three women were still in the bathroom, LC recalled Appellant
sending “a text or Facebook message” to the group asking if everything was
okay. LC also testified that Appellant had JC’s phone because JC left it sitting
on the coffee table when she went to the bathroom. The group had been using
Facebook to communicate while in Germany and a series of messages corre-
spond to when JC and SrA CB were in the bathroom and when LC joined them.
At 0156 hours, LC sent a group message, “Yo, you guys good?” 11 Appellant re-
plied, “I’m good” and asked, “How are the rest? [tagging SrA CB].” LC re-
sponded, “All good!” Appellant then sent eight messages: (1) “Are you sure;” (2)
“call [tagging JC’s account] [JC’s last name];” (3) “and [tagging SrA CB’s ac-
count];” (4) “I want to make sure they are safe b before turn in;” (5) “So me.
Proof;” (6) “I’d what I’m saying;” (7) “What room is [tagging JC’s account] [JC’s
last name];” and (8) “I have her phone.” Appellant also sent JC a private mes-
sage on Facebook at 0157 hours that read “Have you gone to bed.” 12
Around 0245 hours, based on JC’s behavior with the male hotel guests, LC
told the group it was time to go to bed. According to a witness who reviewed
the front patio’s security footage, when the group left the patio Appellant was
11 These messages are replicated with errors. Identifying names and account names
have been removed.
12 JC testified she did not see this private message from Appellant until after the police
were called when she was at a German hospital.
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United States v. Horne, No. ACM 39717
carrying a beer bottle and JC was not. LC testified that once the group was in
the elevator JC said “she was coming to sleep” in LC’s room. LC told JC to go
to her own room. SrA CB was not asked whether she recalled this elevator
conversation between LC and JC. According to SrA CB and LC, JC and Appel-
lant exited the elevator on the third floor and they proceeded to their respective
rooms on the fourth floor.
C. Upstairs in the Hotel
According to the hotel’s guest-room door-access logs, JC’s room key was
used to access her third floor room at 0252 hours. The access logs show no
corresponding entry by Appellant’s room key into his room.
JC testified she did not remember leaving the patio or being on the elevator,
but she did remember being alone in her room preparing to go to bed by “setting
[the] alarm on [her] phone for the next day; changing into pajamas; that sort
of thing.” JC described that her normal bedtime routine also involved removing
her diamond wedding ring because it had a tendency to scratch her at night
and sometimes her fingers swelled at night. JC did recall hearing a knock on
the door while she was in the middle of putting on her pajamas. JC remem-
bered grabbing a pair of black sweatpants and putting them on before answer-
ing the door. JC was still wearing her tank top from earlier in the night. JC
had no memory of leaving her room or visiting LC’s room on the fourth floor at
any time with Appellant.
According to LC’s cell phone log, at 0252 hours, LC received an incoming
call from Appellant that lasted for 18 seconds. LC testified that this call was
“just before” Appellant and JC came to her room. When LC opened the door,
she saw JC and Appellant standing in the hallway “kind of giggling.” JC asked
for her “badge” that LC was keeping in her backpack. Meanwhile, according to
LC, Appellant was standing outside the door wobbling a bit. LC gave JC her
badge and told them to go to bed. LC did not think JC looked uncomfortable
nor did LC see JC or Appellant display verbal or physical signs of affection
towards each other. LC recalled JC saying that Appellant was “very drunk”
but that JC was “giggling” about it. LC did not recall whether Appellant or JC
was carrying a beer bottle. LC was not asked if she remembered whether JC
was wearing jeans or black sweatpants. LC was also not asked if she recalled
whether JC was wearing her diamond wedding ring or not.
At 0301 hours, Appellant’s room key was used to attempt to access JC’s
room. This resulted in an error code which was shown on the guest-room door-
access log for JC’s room.
LC testified JC and Appellant came to her room a second time, approxi-
mately eight minutes after the first time. JC and Appellant again stood in the
hallway and JC asked LC “for the same badge that was in her hand.” LC told
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United States v. Horne, No. ACM 39717
JC that she had the badge in her hand. JC looked “surprised” and “looked at
her hand” and “looked confused, very disoriented.” LC agreed that JC’s de-
meanor had changed “a little bit” from the first visit. Now, JC “was kind of out
of it, like almost like sleep walking.” LC testified that “both looked drunk, but
it was like less of a happy drunk and more of a tired drunk.” LC told them to
go to bed and that she “was very uncomfortable with them being there.” LC
explained that JC and Appellant “didn’t seem to be uncomfortable with each
other, but I was, frankly pushing them—like I was upset that they were there.”
LC was not asked whether JC was wearing jeans or black sweatpants or
whether JC was wearing her diamond wedding ring or not.
At 0310 hours, JC’s room key was used to access her room.
D. Inside JC’s Room
As noted above, JC never recalled leaving her room or visiting LC’s room.
JC only recalled Appellant entering her room one time and this entry occurred
when JC heard a knock on her door when she was changing into her pajamas.
As JC never recalled leaving her room, she was unable to testify exactly when
she changed her clothes—before or after the two visits to LC’s room with Ap-
pellant. JC did remember answering the door, which opened inwards and Ap-
pellant “pushed” her through the door, “back into” the room, and “onto [her]
bed.” JC recalled Appellant held her arms over her head as he pushed her
through the door. JC was asked by the senior trial counsel whether she recalled
if there was anything in Appellant’s hands and her response was “I was frozen.
I didn’t worry about what was in his hands.” JC described that Appellant was
pushing her around her shoulders or her arms and walking her back. JC ex-
plained “I’m drunk, so it’s not like I’m hard to push back—and he shoves me
onto the bed.” Once on the bed, JC stated that Appellant wrapped his hands
around her wrists but she did not remember how much force he used.
JC testified that after Appellant pushed her down onto the bed, he started
taking her clothes off. JC thought Appellant was “on his hands and knees right
above [her].” JC recalled “just rolling back and forth trying to get away” as
Appellant pulled off her top. JC testified that Appellant took off her black
sweatpants and she “was still rolling.” JC did not know if she was screaming,
but she was “screaming inside.” JC explained that she was rolling to try and
get away from Appellant but she was not able to because he was bigger and
stronger than her. JC recalled Appellant “just threw” her clothes after they
were removed. JC also described her clothes being “tossed” by Appellant “to
the floor.”
At trial, JC identified the black sweatpants and the tank top she was wear-
ing which were admitted into evidence. JC also identified a bra that she wore
earlier in the evening but she could not recall whether she had been wearing
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United States v. Horne, No. ACM 39717
it right before the assault. Photographs of each of these items of clothing were
substituted in the record of trial. The German police also photographed where
these items of clothing were found in JC’s room. We describe those details be-
low.
JC testified that after her clothes were removed by Appellant, she remem-
bered Appellant being positioned “over the top” of her and kissing her while
she turned her head from right to left. JC was turning her head in this manner
to “get away from him kissing” her because she “didn’t want it.” Appellant
smelled like cigars. JC testified that she “passed out” and that when she was
“coming back to” she saw Appellant’s face between her legs. JC was asked what
Appellant was doing, and she responded “oral sex.” JC testified that she “was
trying to figure out what was happening.”
JC was then asked what Appellant did next. According to the transcript,
JC responded,
Pushing his way inside of me. I remember crying out that I love
my husband and I’m married. He said “I don’t care.” I said,
“You’re married,” and [he said] “I don’t care.” I even said I could
be pregnant, and he didn’t care. I passed back out again. [The
witness was emotional.]
JC agreed that Appellant had inserted his penis in her vagina. JC explained
that Appellant’s body was on top of hers and she was laying on her back in the
middle of the bed. Once Appellant penetrated her, JC recalled thinking “rape;
I don’t want this; I didn’t ask for this; why?”
JC testified that she did not recall “how long [Appellant] did it” and she did
not know “what else he did” but that it “felt like a lifetime” and she “blacked
out after it.” JC recalled that she “woke up” and Appellant “was at the foot of
the bed getting dressed.” JC noticed there was blood right underneath her pel-
vis on the bed linens and thought “[r]ape and it was because he forced his way
inside me.” JC covered herself with the sheet because she did not want him to
look at her while she was naked. Appellant said “sorry [JC’s last name], want
me to get somebody?” JC asked for Appellant to get SrA CB.
E. Subsequent Events
SrA CB was asleep in her room when she woke to someone knocking on her
door. SrA CB did not recall what time it was when she heard the knocking but
when she answered the door Appellant was standing there looking “frazzled”
and “scared.” Appellant told SrA CB, “[JC] needs you.” SrA CB asked “why”
but Appellant just repeated that JC needed her and did not give any reasons.
SrA CB testified that she went to JC’s room alone and Appellant did not follow
her.
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United States v. Horne, No. ACM 39717
At 0338 hours, Appellant sent the group a Facebook message “come pic up
[tagged JC’s account] phone at [Appellant’s room number].” It is unclear
whether this message was sent before Appellant woke up SrA CB or after. The
hotel’s guest-room door-access logs show Appellant’s room key accessed his
room for the first time on 11 July 2017 at 0344 hours. The last time Appellant’s
room key had been used to access his room was 10 July 2017 at 2223 hours.
When SrA CB arrived at JC’s room, JC answered the door “holding a blan-
ket over herself.” JC was not clothed underneath the blanket and was crying.
SrA CB asked what happened and JC stated that Appellant “had raped her.”
SrA CB saw that the wedding ring and a silver thumb ring that JC had worn
earlier in the evening were now on the desk in JC’s hotel room. SrA CB at-
tempted to comfort JC and asked if JC wanted her to get LC. JC said she did,
so SrA CB left to get LC. SrA CB took JC’s room key so she could get back into
JC’s room.
LC recalled being woken up by SrA CB and going to JC’s room. At 0347,
the hotel’s guest-room door-access logs show JC’s room key was used to access
JC’s room. SrA CB agreed that she used JC’s room key to get back into the
room.
After entering JC’s room, LC described JC as “completely nude,” “sitting at
the head of the bed with a blanket wrapped around her” which covered her. JC
was crying. SrA CB had a similar recollection of where JC was located. LC
recalled JC’s wedding rings “were off sitting on her bedside table.” LC tried to
calm JC down. During this time, SrA CB recalled JC pointing out that there
was blood on the bed and that she was not drunk. SrA CB thought “everyone
was drunk.” LC did not recall JC saying she was not drunk at this point.
SrA CB testified that she and LC “asked [JC] if she would like [them] to
notify the authorities.” JC said “Yes” so SrA CB called the front desk and asked
them to call the police. LC testified that she went to Appellant’s room. No evi-
dence was presented on what the two of them discussed. However, LC testified
that she did not retrieve JC’s phone from Appellant’s room even though Appel-
lant had sent the group Facebook message that he had JC’s phone and gave
his room number. LC stated that SrA CB was the one who retrieved JC’s phone
from Appellant’s room, though SrA CB never testified to doing so. At 0354
hours, LC sent a group Facebook message “what room are you in?” in which
SrA CB responded with JC’s room number. LC explained that she sent the
group Facebook message because she was “just trying to get back to [JC]’s
room.”
LC testified that she then returned to JC’s room and this is when JC stated
that she was not drunk. LC explained how this occurred:
12
United States v. Horne, No. ACM 39717
I told her, “Just tell us the truth. I know you’re very drunk, but
just try to tell us exactly what happened,” and she said, “I’m not
drunk at all,” and she seemed very surprised that we said that -
- [SrA CB] and I.
...
. . . I just tried to very calmly and directly ask her what hap-
pened. She kept saying, “You don’t believe me, you don’t believe
me, just look at the blood on the sheets.”
...
She was rattling that her husband would think that she’s a
whore and that --she just seemed upset with that --saying that I
didn’t believe her.
German police investigators were notified and arrived at the hotel. Among
the first German investigators to arrive was Mr. HE, who testified at Appel-
lant’s trial with the assistance of a translator even though he spoke and un-
derstood English. Mr. HE testified that he was directed to JC’s room and found
the door was propped open with a backpack. Two women were inside, JC and
SrA CB. JC was sitting on the right side of the bed, bent over with a cover
pulled up to her chest. SrA CB was sitting next to JC. It appeared to Mr. HE
that JC had no clothes on and he described her demeanor as “tense and she
looked as if she had been crying.” Mr. HE recalled JC saying—before he asked
any questions—that “I didn’t want to do it, I’m married.” Mr. HE found this
statement “very peculiar.”
Mr. HE questioned JC and described her as “very whiney, almost hysteri-
cal, and she could not answer any questions without having a fit of tears.” After
questioning, Mr. HE asked JC to move so the room could be documented and
was told that JC did not have any clothes on. Mr. HE and his male colleague
left the room and directed JC not to change anything in the scene and to put
on fresh clothing.
When Mr. HE returned, the bedding and JC’s clothes were photographed
and collected. For trial, four arrows were added to one picture of the “cover” of
the bed, to identify what Mr. HE described as “red stains on the cover.” In this
same picture JC’s black sweatpants are partially visible at the bottom of the
“cover.” Mr. HE described the black sweatpants as “folded inwards, nested,”
“on top of the cover.” JC’s bra and tank top were photographed on the floor,
next to the desk, underneath a foldable hotel luggage rack. Mr. HE described
that one half of the bra was “on top of the tank top, and the other half was
folded inside the middle of the tank top.” According to Mr. HE, the bra and
tank top were “not neatly folded together.” The bed sheet was collected and
pictures in the record of trial show two areas of discoloration. Mr. HE did not
13
United States v. Horne, No. ACM 39717
recognize the bed sheets specifically, but he knew that he collected them and
they had “red substances” on them.
Mr. HE also noticed there was a beer bottle next to the sink in JC’s bath-
room. In addition, the toilet seat was “open” which Mr. HE “found unusual”
because “a woman was in the room or was assigned to the room and . . . to uri-
nate . . . [men] lift the top of the toilet.” The beer bottle and the toilet were
photographed and those pictures were also admitted into evidence. 13
During the collection of the evidence, in Mr. HE’s opinion, JC was “very
fragile,” and “was having problems with her breathing and kept slumping more
in her chair.” Mr. HE testified that JC wanted an ambulance to transport her
and he made the decision to call one. A portable breath test was administered
to JC and Mr. HE observed the result as “2.14 alcohol per mil.” Mr. HE did not
know how that translated in blood alcohol content. 14
JC and SrA CB did not testify about many of the details surrounding their
interactions with the German police investigators. SrA CB recalled the Ger-
man police investigators arriving and that they took pictures and collected
things and there was a language barrier. JC recalled waiting for the police with
SrA CB who retrieved her a pair of shorts and a tank top to wear. JC recalled
the German police arriving and collecting and bagging items. JC recalled hav-
ing to urinate and being told she was not allowed to wipe. JC testified that she
felt gross and dirty. JC recalled that military police arrived later and made
sure she was okay and told her they would meet her at the hospital.
Sergeant (SGT) DT, one of the two military policemen from the United
States Army who responded to the hotel, testified. SGT DT testified that when
he and his partner, Specialist W, arrived, SrA CB, JC, and a German police
investigator were in the room. SGT DT described JC as “sitting on a chair, kind
of balled up on the chair, kind of in a fetal position with a blank look on her
face.” SGT DT said JC was wearing a sweatshirt and some type of pants. JC
was very reserved and was not saying anything to anyone. SGT DT learned all
of the evidence had been collected. SGT DT escorted JC to the ambulance. SGT
DT recalled that the German police investigators “walked up to, I think, [SrA
CB]’s room to grab stuff out of her room.” SGT DT went with JC and described
that she “grabbed onto [his] left arm very tightly and asked if [he] was going
to the hospital with her, because she felt comfortable with a military police, an
13 The beer bottle was still in the custody of military authorities at the time of trial. It
was never fingerprinted and there was no attempt to collect a DNA sample from it.
14 During pretrial motions, Dr. ES, the Government’s forensic toxicologist at that time,
testified this was “equivalent to a .22 blood alcohol concentration.”
14
United States v. Horne, No. ACM 39717
American soldier, going with” her. SGT DT told JC he would meet her there
because he had to collect other information from witnesses.
Mr. HE rode in the ambulance with JC. During the ride, JC was being
questioned by the ambulance assistant about whether she was pregnant and
Mr. HE heard this conversation. Trial counsel was allowed to question Mr. HE
about this subject after a defense objection was withdrawn:
[Trial Counsel]: Sir, I’m going to ask you one more time my last
question. When you traveled to the hospital with [JC], did you
hear her ever say why she thought she was pregnant?
[Mr. HE]: Yes, I did hear that.
[Trial Counsel]: Did she say -- she said she thought she was preg-
nant, correct?
[Mr. HE]. She said she was pregnant.
[Trial Counsel]: Did she give a reason why she thought that?
[Mr. HE]: No, she did not say, and it was about the status of her
health. It’s always asked by people in—by the assistants in the
ambulance for the status of your health.
At the hospital, beginning at 0630 on 11 July 2017, Dr. K, a German gyne-
cologist, performed a sexual assault forensic examination (SAFE) on JC. Dr.
K’s SAFE report was prepared in German and was translated into English for
trial; both versions were admitted into evidence. Dr. K and JC conversed in
English during the SAFE. SrA CB sat in at JC’s request but did not testify to
what was said by JC.
The SAFE report provides a “[b]rief report of the circumstances” from JC
as written by Dr. K:
We were four (all coworkers) (3 women, 1 man) who had some
drinks together at the hotel (Meriott) [sic] during a dinner. ([JC]
drank 3 Vodka Cranberry). Afterwards at approx. 2:45 AM [JC]
and 1 coworker returned to their rooms on the 3rd floor. [Appel-
lant] followed [JC] to her room. He harassed her and had non-
consensual intercourse with her. She could only defend herself a
little since he was significantly bigger and stronger than she
was. He finally left the room and informed [SrA CB]. He told
her 15 he did not do anything [JC] did not want to do. [SrA CB]
finally called the police.
15 The SAFE narrative does not specify whether this statement was made to SrA CB
or JC.
15
United States v. Horne, No. ACM 39717
The SAFE report has a section on pregnancy and the “Possible” block is
checked. The date of JC’s first day of last menstruation is annotated as 4 June
2017. JC’s state of awareness was marked as “clear;” her thought process was
“structured;” her mood was “sad” and her contact was identified as “shy;” her
memory was “inconspicuous;” her drive “passive;” and her orientation “disor-
dered.” The SAFE report stated that during the event: (1) vaginal penetration
occurred with ejaculation and without a condom; (2) there was holding by the
wrists; (3) clothing was “pulled down;” and (4) JC’s “face, chest, vagina” were
“kissed, licked, [or] suckled” though the report does not specify which of these
three things occurred. The SAFE report stated that after the event JC had (1)
pain in her lower abdomen; (2) rinsed her mouth; and (3) urinated. Dr. K noted
no external injuries. Dr. K collected a total of ten swabs from JC’s external
genitals and vagina. The SAFE report of the vaginal exam stated Dr. K’s find-
ings as “no bleeding. Vulva/Vagina clean, no signs of injuries visible.” JC’s
weight was 110 pounds during the SAFE. Her prior alcohol consumed was
listed as three vodka and cranberry juice, each drink approximately 300 ml,
though Dr. K answered “no” to whether the examining physician had the im-
pression that JC was under the influence of alcohol, drugs, or medication.
On 24 July 2017, Dr. K produced a three-page “Medical Report” in German
which was also translated into English. Both were admitted into evidence. This
report contains additional details from the examination. First, it stated that
“[r]egarding the act of the circumstances and the level of violence, the patient
did not provide specific details.” Second, it stated JC confronted Appellant
about the act and he stated “he did nothing that she didn’t want either.” 16
Third, the report stated that JC “demanded of [Appellant] to inform her female
colleague, which he did and then proceeded to his room.” Fourth, the report
described JC as in a
residual alcohol state at this point. Nevertheless, she can pro-
vide specific details of the time and duration of the assault. The
patient describes the sequence of the act rather vaguely and only
provides specific details upon further questioning. Overall, the
patient seems troubled. She is upset and cries while describing
the incident.
Fifth, and finally, the report contains a reference that JC “does not practice
safe sex due to having the desire for children/ a child.”
A video deposition of Dr. K was admitted into evidence at Appellant’s trial.
Dr. K had performed “up to 20” SAFEs and agreed it was not her primary work.
Dr. K explained that her clinic would provide treatments for pregnancy, but
16 Dr. K appears to be clarifying the narrative in JC’s SAFE report.
16
United States v. Horne, No. ACM 39717
that JC did not request the morning-after pill. Dr. K remembered JC saying
she planned to get pregnant or might be pregnant. Dr. K explained that her
hospital did not provide precautionary testing for sexually transmitted dis-
eases. Dr. K confirmed that no one had told her that JC was under the influ-
ence of alcohol and that, to her, JC did not appear to be under the influence of
alcohol. Regarding JC being “disordered” Dr. K explained that JC was not ori-
ented to time because Dr. K did not think she had a watch with her. Dr. K
agreed that it was common not to see injuries in a SAFE. For the vaginal ex-
amination, Dr. K noted that she was familiar with the process of using blue
dye to see injury fissures, but that her facility does not use that method so her
observations of no injuries were with the naked eye. She described having “a
little bit” of difficulty in completing a full visualization of JC’s anatomy. Re-
garding JC’s memory of the assault, Dr. K had the impression that JC did not
have any gaps in her memory. Finally, Dr. K explained that blood was drawn
from JC at 0820 hours. Dr. K never received the results of the tests of JC’s
blood. However, she was told after the examination by one of the German police
that they had tested JC’s breath, but she did not recall exactly what the results
were.
In the afternoon of 11 July 2017, JC met with Dr. N, who at the time was
an active duty United States Army major and family medicine physician sta-
tioned in Germany. 17 JC arrived with a victim advocate and shared that she
had already gone to the German hospital, that she did not wish to have another
sexual assault examination, but she “mostly” had concerns about medical care.
JC told Dr. N that she was raped by a male in her unit, and she did not wish
to rehash the entire story because she had done that already. JC did share that
there was “penile/vaginal penetrated intercourse and no other penetration took
place.” JC was concerned about a possible pregnancy and harm to that preg-
nancy. Dr. N testified that JC
had been trying to conceive with her husband and that she was
late on period, to my best recollection about 37-days late[ 18] and
she had been feeling a little bit nauseous even before the sexual
assault and so she thought she could be pregnant and she was
17 Dr. N separated from the Army prior to Appellant’s trial.
18 Dr. N testified that 37 days late meant JC’s last menstrual cycle started on 4 June
2017 and that she received this information from JC. Dr. N noted that the SAFE report
of Dr. K, which also had the same date listed, was not available to her at that time.
17
United States v. Horne, No. ACM 39717
unsure if the German doctors had done a pregnancy test or con-
sidered that and so she desired a pregnancy test and to sort of
be reassured that there was no threat to her pregnancy.
Dr. N performed a pregnancy test which was positive. 19 JC was told and Dr. N
thought she was “both excited” and it “increased her . . . fear—she was sort of
fearful during the whole encounter.” After learning the results, according to
Dr. N, JC started crying again and looked less confident and a little bit anxious.
Dr. N opined that it seemed like this was the first time JC received positive
pregnancy results. JC described to Dr. N that she saw blood on the sheets but
that the bleeding had stopped. Dr. N noted that it is common to have some
small amounts of bleeding in the first trimester of pregnancy. Dr. N was asked
whether JC remembered the entire incident or entire event and responded, “I
believe what she said was that she didn’t lose consciousness.”
At 1709 hours on 11 July 2017, JC was interviewed by AFOSI agents but
the interview was not recorded. 20 Prior to interviewing JC, AFOSI agents had
already retrieved the evidence that had been collected by the German police,
visited the hotel, photographed the rooms, met with hotel staff, and retrieved
the guest-room door-access logs. One of AFOSI’s photographs showed a bottle
of prenatal vitamins in JC’s bathroom. Special Agent (SA) LJ from the Ram-
stein AB AFOSI detachment testified about this evidence at trial and also ex-
plained what JC said during the interview regarding a few areas where the
evidence was in conflict. SA LJ explained that JC said (1) she had been trying
to get pregnant with her husband; (2) that the beer bottle in her room was not
JC’s; (3) that JC had fallen asleep when she heard a knock on her door; and (4)
that Appellant got undressed. SA LJ testified that JC did not mention setting
her alarms and was not sure if the “oral intercourse” was pre- or post-vaginal
intercourse.
19 JC testified that Dr. N told her she was ten days pregnant. Dr. N explained when
she did a qualitative pregnancy test she would use the first day of the last menstrual
cycle to tell a patient how long she might be pregnant. Dr. N agreed that if JC told her
that 4 June 2017 was the first day of her last menstrual cycle that JC was “close” to
ten days pregnant.
20 When given the option of having a second interview (this time recorded), or making
a written statement, JC opted to make a written statement in September 2017, ap-
proximately two months after the alleged sexual assault, and to have her SVC review
it before it was submitted. The SVC, Captain JP, suggested two changes to JC’s initial
draft of the statement: (1) that if JC felt the penetration of Appellant’s penis, she
should do her best to describe it as she detailed the situation; and (2) that the SVC
would take out the phrase “without hint of concern or apology” when Appellant asked
whether JC wanted him to get someone for her. Portions of JC’s second written state-
ment were admitted into evidence as a prior consistent statement.
18
United States v. Horne, No. ACM 39717
Captain (CPT) MM, a United States Army nurse and sexual assault medi-
cal forensic examiner, performed a SAFE on Appellant and testified at Appel-
lant’s trial as an expert for the Government. His testimony covered both Ap-
pellant’s examination and the process he would use in the SAFE of a female
victim. CPT MM’s full-body examination of Appellant revealed no visible inju-
ries. CPT MM collected swabs from Appellant’s genitals. Regarding female vic-
tim SAFEs, CPT MM testified, inter alia, that the presence or absence of vag-
inal bleeding or other injuries are not, in themselves, indicative of whether
sexual intercourse was consensual. CPT MM also explained that “toluidine
blue” is a stain that, when applied, can help highlight injury to tissue. It is only
applied to external genitalia to highlight injuries that may not be able to seen
with just the naked eye. CPT MM agreed more experienced examiners could
potentially see injuries without using the dye. CPT MM also explained that the
dye is recommended if there is injury that is believed to have occurred or if a
patient notes pain during the physical head-to-toe assessment.
At trial, Dr. GJ testified for the Government as an expert in forensic toxi-
cology. Based on JC’s blood alcohol content as measured on the morning of 11
July 2017, Dr. GJ estimated that JC’s blood alcohol content at the time of the
alleged assault may have been in the range of 0.237 to 0.290 percent. On cross-
examination, Dr. GJ explained that a person with blood alcohol content in that
range could potentially walk, converse, participate in sexual intercourse, and
“perform all their activities.”
Forensic testing by the United States Army Criminal Investigations Labor-
atory identified the presence of semen on vaginal and cervical swabs taken
from JC, as well as swabs of Appellant’s genitals. Testing identified DNA pro-
files matching both JC and Appellant on the cervical swab from JC, and swabs
from Appellant’s genitals also contained DNA profiles matching JC and Appel-
lant. Testing also identified a mixture of blood and semen on samples taken
from the bedding, which contained DNA profiles matching JC and Appellant.
At trial, the Defense called Ms. MO, a sexual assault nurse examiner and
sexual assault forensic examination program manager for the United States
Navy, to testify as an expert in SAFEs. Ms. MO served as an expert consultant
for the Defense and observed JC’s trial testimony. Based on JC’s description of
the incident, Ms. MO testified she would have expected JC’s full-body SAFE to
reveal marks on her arms and wrists from Appellant holding her and abra-
sions, redness, and “potential” injuries in JC’s genital area.
19
United States v. Horne, No. ACM 39717
II. DISCUSSION
A. Unlawful Influence
1. Additional Background
After the July 2017 incident in Germany, JC and her husband TSgt BC
transferred from Fort Meade, Maryland, to Nellis AFB, Nevada. In October
2017, SA DM of the Nellis AFB AFOSI detachment received a lead from AFOSI
agents at Ramstein AB to interview TSgt BC in relation to the investigation of
Appellant. SA DM made contact with TSgt BC by calling JC’s phone because
that was the only phone number he was given. SA DM made contact with TSgt
BC and made an appointment to interview him the following week.
Before the interview took place, SA DM received a call from Captain (Capt)
JP, who was JC’s SVC at the time. Capt JP told SA DM that the interview
“needed to be cancelled” and that SA DM should contact TSgt BC through Capt
JP. In addition, Capt JP sent an email to SA LJ at Ramstein AB to the effect
that the AFOSI should contact Capt JP in order to speak with JC or TSgt BC.
Around the same time, Capt JP called Capt AS, who was then the trial
counsel assigned to Appellant’s case at Fort Meade. Capt JP told Capt AS that
SA DM’s call to interview TSgt BC had made JC very upset. JC had already
been upset due to certain other interactions she had with AFOSI. 21 In addition,
Capt JP told Capt AS that TSgt BC did not want to be interviewed, and that
JC was “thinking about dropping out of the process entirely.”
As a result of her conversation with Capt JP, Capt AS spoke with her staff
judge advocate, Lieutenant Colonel (Lt Col) JW. 22 Capt AS told Lt Col JW that
TSgt BC did not want to be interviewed by AFOSI. Lt Col JW was surprised
that AFOSI had not already interviewed TSgt BC by this point in the investi-
gation, and she advised Capt AS to tell AFOSI to continue their investigation
regardless of whether they were able to interview TSgt BC.
After consulting with Lt Col JW, on 25 October 2017 Capt AS sent an email
to SA LJ at the Ramstein AB AFOSI detachment stating in part:
We received a call this week from the SVC of [JC] . . . who ex-
pressed concern that [JC] may elect to no longer participate in
the process due to her level of stress and frustration with the
21 Capt AS later identified two such aggravating factors during her motion testimony.
First, the AFOSI had not recorded their initial interview with JC in July 2017, and
therefore they had contacted JC after her move to Nellis AFB to obtain another inter-
view or statement. Second, the AFOSI had requested an additional DNA sample from
JC because they “did not collect enough of a sample over in Germany.”
22 Lt Col JW was a major (O-4) at the time.
20
United States v. Horne, No. ACM 39717
process thus far. One of the issues that upset her recently was
that Nellis OSI (pursuant to a lead) had reached out to her hus-
band directly and requested an interview with him. From a pros-
ecution standpoint, we do not believe that an OSI interview with
the husband is necessary nor relevant enough to outweigh the
risk of the Victim dropping out of the process entirely. . . .
Anything that could be done to minimize the Victim’s stress at
this stage will be helpful to the case going forward. . . .
On or about the same day, Capt AS sent text messages to Capt JP inform-
ing him that she had contacted the AFOSI at Ramstein AB and asked them to
tell the Nellis AFB detachment to “go through [Capt JP] for everything.” In
addition, Capt AS told Capt JP she had sent a “request” to “justify” AFOSI
“dropping the lead to interview [JC’s] husband.” Capt JP thanked Capt AS for
“getting that done.”
SA LJ replied to Capt AS on 26 October 2017, stating in part:
[T]hem contacting her husband directly is acceptable because
her SVC does not provide services for him. The interview of her
husband is within our scoping purview for this investigation,
now if he declines that is one thing but we have to make an at-
tempt. We have information from a witness interview that she
was messaging her husband prior to the incident and we also
know from her that she disclosed to her husband what hap-
pened, so we are well within our right to ask for an interview.
The same day, Capt AS responded:
I am concerned about the extreme sensitivity of the victim in this
case, at this point in the process. . . . I completely understand
why the husband is being interviewed, but think it needs to be
done with precautions after 4.5 months has gone by. . . .
All I ask is that you consider this input as the investigation
wraps up since the actions of OSI now may impact our ability to
prosecute the case down the line.
On 27 October 2017, SA LJ replied to Capt AS, in pertinent part, “Sure
ma’am, no problem.” The Ramstein AB AFOSI detachment cancelled the lead
21
United States v. Horne, No. ACM 39717
to the Nellis AFB detachment to interview TSgt BC, and SA DM did not inter-
view him. 23 On 27 November 2017, the charge and specification were preferred
against Appellant by his squadron commander. Capt AS administered the oath
to the squadron commander at preferral and signed the charge sheet. On 28
November 2017, Lt Col JW receipted for the charge and specification on behalf
of the summary court-martial convening authority.
Prior to trial, the Defense submitted a motion to dismiss the charge and
specification for actual and apparent unlawful command influence or unlawful
influence on the basis that, inter alia, Capt JP and Capt AS had “collaborated”
to limit the scope of the AFOSI investigation. 24 The Government opposed the
motion. Counsel for both parties interviewed TSgt BC prior to a hearing on the
motion held on 17 and 18 May 2018.
At the hearing, the military judge received testimony from LC, Capt AS
(who by this point had been replaced as trial counsel), Lt Col JW, TSgt BC, SA
LJ, SA DM, Capt JP (who had been released as JC’s counsel and replaced by
another SVC as a result of the unlawful influence motion), and JC. Of note,
Capt AS’s testimony included the following exchange with trial counsel:
Q [Trial Counsel]. Did you feel like the victim’s husband had any
exculpatory evidence? Any evidence that the government was
trying to hide from the defense by not interviewing him?
A [Capt AS]. We did. Based on one of the witness’s statements.
There had to [sic] appeared to be text messages. However, that
evidence was already out there and it had already been 4 and a
half months. And again, our understanding at the time was that
he was going to decline to be interviewed anyway. Plus there was
[sic] spousal privilege considerations. So based on all these fac-
tors, that was kind of how we ultimately came to our conclusion
of what to do.
23 In March 2018, TSgt BC was interviewed by the AFOSI in a related investigation of
a complaint made by LC against JC for straddling her on the front patio of the hotel.
At that interview TSgt BC provided information about his relationship with his wife
JC, her habits with respect to drinking alcohol, and when she called him in the summer
of 2017 to tell him Appellant had sexually assaulted her. Agent notes of that interview
were provided to Appellant’s trial defense counsel.
24 An additional basis for the motion related to the creation of JC’s written statement;
Appellant has not raised that aspect of the motion on appeal and it is not relevant to
our analysis here.
22
United States v. Horne, No. ACM 39717
Q. So in no way were you trying to impede the investigation?
Again, and to any evidence that you thought of that was going
to be exculpatory in this case?
A. No. And at some point, from a prosecutor’s perspective, I
mean I--the witness was an outcry witness, right? So I mean
there was an assumption that at some point he would be inter-
viewed. It was just at that time, it was really about timing at
that point in time, that it was bad timing.
TSgt BC testified inter alia that he did not want to speak with the AFOSI
in October 2017, that he had “never talked directly” to Capt JP, and that he
did not remember any text messages from JC on 10 July 2017. SA LJ testified
that after Capt JP’s email request, she “let [the other agents] know that they
needed to communicate directly with the SVC in order to try and set up some-
thing concerning the victim, but that they still needed to still try to get the
interview from the victim’s husband.” SA LJ further testified that she under-
stood the SVC represented only JC and not JC’s spouse; however, the AFOSI
would not interview a victim’s husband against his will. SA DM testified inter
alia that he did not conduct the interview with TSgt BC because the lead from
Ramstein AB was cancelled, and not because of his conversation with Capt JP.
The parties provided supplemental briefs and the military judge heard ad-
ditional argument on 13 July 2018. On 10 November 2018, the military judge
issued a “notice of ruling” that concluded that the Defense had failed to meet
its initial burden to show some evidence of unlawful influence. On 3 May 2019,
five months after the trial concluded, he supplemented his “notice of ruling”
and explained:
The defense has not shown some evidence that UCI [unlawful
command influence] or UI [unlawful influence] occurred. Assum-
ing it has, however, the government has demonstrated beyond a
reasonable doubt that the facts as presented do not constitute
UCI or UI. Steps to temporarily forestall the interview of [JC]’s
husband so as to encourage [JC]’s continued participation . . . do
not suggest any representative for the government or the previ-
ous SVC [Capt JP] placed any strain upon the public’s perception
of the military justice system.
The supplemental ruling continued that assuming arguendo the Government
had failed to disprove unlawful influence, the military judge additionally found
“the present status of this case and its current participants” together with all
the facts and circumstances of the entire proceedings “prove beyond a reason-
able doubt: (1) that there is no intolerable strain upon the public’s perception
of the military justice system; and (2) that an objective, disinterested and fully-
23
United States v. Horne, No. ACM 39717
informed observer would not harbor a significant doubt about the fairness of
the proceeding.” The military judge went on to note several factors “protecting
against any unfairness to [Appellant],” including: the “disengagement” of Capt
AS from the prosecution; the exclusion of Capt JP from the courtroom during
the testimony of other witnesses on the motion; Capt JP’s withdrawal as SVC
and compelled testimony on the motion; the availability of TSgt BC prior to
pretrial motion practice in May 2018 and July 2018, as well as at trial in De-
cember 2018; the parties’ extended opportunity to develop evidence and argu-
ments for the motion; and TSgt BC’s “near-complete remov[al] from the facts
and circumstances directly bearing on the alleged sexual assault.”
2. Law
“Allegations of unlawful command influence [UCI] are reviewed de novo.”
United States v. Salyer, 72 M.J. 415, 423 (C.A.A.F. 2013) (citations omitted).
“Where an assertion of unlawful command influence is litigated at trial, we
review the military judge’s findings of fact under a clearly-erroneous standard,
but we review de novo the legal question whether those facts constitute unlaw-
ful command influence.” United States v. Ayers, 54 M.J. 85, 95 (C.A.A.F. 2000)
(citing United States v. Wallace, 39 M.J. 284, 286 (C.M.A. 1994)).
“Two types of unlawful command influence can arise in the military jus-
tice system: actual unlawful command influence and the appearance of unlaw-
ful command influence.” United States v. Boyce, 76 M.J. 242, 247 (C.A.A.F.
2017). Actual UCI “is an improper manipulation of the criminal justice process
which negatively affects the fair handling and/or disposition of a case.” Id. (ci-
tations omitted). In order to demonstrate actual UCI, the appellant “must
show: (1) facts, which if true, constitute unlawful command influence; (2) that
the proceedings were unfair; and (3) that the unlawful command influence was
the cause of the unfairness.” Salyer, 72 M.J. at 423 (citing United States v.
Richter, 51 M.J. 213, 224 (C.A.A.F. 1999)). “[T]he initial burden of showing
potential unlawful command influence is low, but is more than mere allegation
or speculation.” Id. (citing United States v. Stoneman, 57 M.J. 35, 41 (C.A.A.F.
2002)).
Once an issue of unlawful command influence is raised by some
evidence, the burden shifts to the government to rebut an alle-
gation of unlawful command influence by persuading the Court
beyond a reasonable doubt that (1) the predicate facts do not ex-
ist; (2) the facts do not constitute unlawful command influence;
or (3) the unlawful command influence did not affect the findings
or sentence.
Id. (citing United States v. Biagase, 50 M.J. 143, 151 (C.A.A.F. 1999)).
24
United States v. Horne, No. ACM 39717
Unlike actual UCI, a meritorious claim of an appearance of UCI does not
require prejudice to an accused. Boyce, 76 M.J. at 248. As with actual unlawful
command influence, “when an appellant asserts there was an appearance of
unlawful command influence[,] [t]he appellant initially must show ‘some evi-
dence’ that unlawful command influence occurred.” Id. at 249 (footnote omit-
ted) (quoting Stoneman, 57 M.J. at 41) (additional citation omitted). “Once an
appellant presents ‘some evidence’ of unlawful command influence, the burden
then shifts to the government to. . . . prov[e] beyond a reasonable doubt that
either the predicate facts proffered by the appellant do not exist, or the facts
as presented do not constitute unlawful command influence.” Id. (quoting
Salyer, 72 M.J. at 423) (additional citation omitted). If the Government fails to
rebut the appellant’s factual showing, it may still prevail against a claim of
apparent unlawful command influence if it proves “beyond a reasonable doubt
that the unlawful command influence did not place ‘an intolerable strain’ upon
the public’s perception of the military justice system and that ‘an objective,
disinterested observer, fully informed of all the facts and circumstances, would
[not] harbor a significant doubt about the fairness of the proceeding.’” Id. at
249–50 (alteration in original) (quoting Salyer, 72 M.J. at 423).
The United States Court of Appeals for the Armed Forces (CAAF) “has long
recognized that Article 37(a)[, UCMJ, 10 U.S.C. § 837(a),] prohibits unlawful
influence by all persons subject to the UCMJ.” United States v. Barry, 78 M.J.
70, 76 (C.A.A.F. 2018) (citing United States v. Gore, 60 M.J. 178, 178 (C.A.A.F.
2004)). The test for unlawful influence by an individual acting without the
mantle of command authority is essentially the same as the test for unlawful
command influence. Id. at 76–77.
3. Analysis
Appellant contends Capt JP, the former SVC, and Capt AS, the former trial
counsel, jointly interfered with the AFOSI investigation and created the ap-
pearance of unlawful influence. Appellant emphasizes that Capt AS testified
she believed TSgt BC had “exculpatory” evidence regarding JC’s text messages,
but improperly prioritized JC’s participation in the prosecution. He contends
the effect of the actions of Capt JP and Capt AS was to allow the alleged victim
to “dictate the evidence collection and investigative process,” which would
cause “[a]ny disinterested member of society [to] harbor significant mistrust
and doubt as to the fairness of the proceedings . . . .”
The military judge found the Defense failed to show “some evidence” of un-
lawful influence; we are not so sure. Unlawful influence “is an improper ma-
nipulation of the criminal justice process which negatively affects the fair han-
dling and/or disposition of a case.” Boyce, 76 M.J. at 247; see Barry, 78 M.J. at
76–77. Of course, not all influence is unlawful influence. It was proper for Capt
JP, as SVC, to advocate for the interests of his client, to include her desires
25
United States v. Horne, No. ACM 39717
and emotional well-being. Nor was it improper for Capt AS, as trial counsel, to
offer the AFOSI agents a view of what those who would prosecute the case
needed or wanted from the independent investigation. Arguably, however,
their actions show they overstepped the bounds of their authority, or at-
tempted to do so.
Capt JP represented JC, but he did not represent her spouse, and he had
no authority to attempt to restrict the AFOSI’s access to TSgt BC. Based on
the motion testimony and SA LJ’s email response to Capt AS, it appears the
AFOSI agents involved understood this and the investigation was not substan-
tially affected by Capt JP’s direct contacts with the agents. However, Capt JP
found a more receptive audience in Capt AS. The AFOSI at Ramstein AB can-
celled the lead to interview TSgt BC after Capt AS expressed her concerns to
SA LJ. Thus, through Capt AS, Capt JP was indirectly able to cancel the
AFOSI’s interview with TSgt BC in October 2017. Moreover, although it was
not improper per se for Capt AS to communicate with the AFOSI detachment
at Ramstein AB, the legal office at Ramstein AB would have been the legal
advisor to SA LJ and the other agents there on the conduct of their investiga-
tions. 25 Similarly, the legal office at Nellis AFB was the legal advisor to SA DM
who was tasked with executing the lead from Ramstein AB. We assume for
purposes of our analysis that these combined actions of Capt JP and Capt AS
may constitute “some evidence” of the appearance of unlawful influence.
The next step in our analysis is to determine whether the Government has
demonstrated beyond a reasonable doubt that the predicate facts do not exist
or that the facts do not constitute unlawful influence. We find neither. The
material facts are not substantially in dispute.
However, the Government may still prevail if it demonstrates beyond a rea-
sonable doubt that the actions did not place an intolerable strain on the public
perception of the military justice system, and that an objective, disinterested,
and fully informed observer would not harbor significant doubt as to the fair-
ness of Appellant’s court-martial as a result of the actions. We agree with the
military judge that, in light of all the facts and circumstances, such an observer
would not perceive that the actions of Capt JP and Capt AS may have caused
25 The AFOSI report of investigation shows that investigators coordinated legal issues
with a judge advocate assigned to the Ramstein AB legal office. Capt AS is mentioned
in the report of investigation as providing documents to the AFOSI at Ramstein, but
is not identified as the legal advisor to the investigation. In her motion testimony, Capt
AS explained “Ramstein is usually the advising legal office, but the case was always
ours . . . calls over evidence . . . would always fall under us” because Appellant was
assigned at Fort Meade, MD.
26
United States v. Horne, No. ACM 39717
Appellant’s court-martial to be unfair. Several factors contribute to this con-
clusion, some of which the military judge referenced in his ruling.
First, there is no indication that the AFOSI’s failure to interview TSgt BC
in October 2017 actually prejudiced the Defense during Appellant’s court-mar-
tial. We recognize that evidence of actual prejudice is not necessary in order to
find apparent unlawful influence, as opposed to actual unlawful influence.
Boyce, 76 M.J. at 248. However, the absence of any evidence of prejudice is an
appropriate place to begin our assessment of whether an impartial observer
would doubt the fairness of Appellant’s trial. In particular, in this case TSgt
BC was a peripheral witness with no direct knowledge of the charged offense.
He received a misleading text message from JC that she was “falling asleep”
when she actually drank and socialized for many hours afterwards, but that
message was already known and available to the parties without TSgt BC.
Moreover, the Defense had ample opportunity to interview TSgt BC before trial
and to seek his production as a witness at trial if they believed he had materi-
ally helpful information.
Second, as the military judge recognized, by the time of the May 2018 mo-
tion hearings, both Capt AS and Capt JP were removed from direct involve-
ment in Appellant’s court-martial as trial counsel and SVC, respectively. To
the extent their actions cast doubt upon their motives or judgment, their re-
placement by untainted counsel early in the proceedings tended to remove any
appearance of unfairness in the proceedings. Similarly, although not cited by
the military judge, we note that Lt Col JW at Fort Meade was not the staff
judge advocate to the general court-martial convening authority, the com-
mander of 25th Air Force at Joint Base San Antonio-Lackland, Texas, and
therefore Lt Col JW did not directly advise the general court-martial convening
authority who referred the charge and specification to trial.
Third, a fully informed observer would note that the unlawful influence
motion itself was thoroughly litigated, including briefs, supplemental briefs,
extensive documentary evidence and testimony, and multiple arguments. Alt-
hough the Defense did not prevail on the motion, the alleged impropriety was
thoroughly examined, lending confidence to the fairness of the process.
Fourth, although perhaps improperly carried out, as indicated above the
apparent motives behind the actions of Capt JP and Capt AS were not illegiti-
mate. The military judge found as fact that “[n]o effort or failure to act by any
participant, including [Capt AS] and [Capt JP], was driven by a motive to gain
some unfair advantage or harass the accused,” and this finding was not clearly
erroneous. Appellant compares Capt AS’s actions here to the situation in
Salyer, but we find the comparison entirely unconvincing. In Salyer, after the
military judge made several rulings unfavorable to the Government, “the Gov-
ernment used its custody of the military judge’s official personnel file to search
27
United States v. Horne, No. ACM 39717
that personnel file to find personal family information for the purpose of chal-
lenging the military judge for bias,” and “expressed its displeasure with the
military judge’s rulings not only on the record but in an ex parte manner to the
trial judge’s judicial supervisor during the pendency of the court-martial and
while the military judge was still presiding.” 72 M.J. at 426. As a result, the
military judge found that he was disqualified from continuing to preside at the
court-martial because a reasonable person might question his impartiality. Id.
at 422. The CAAF found the net effect was the Government successfully
“sought, through inappropriate means, disqualification of the military judge
because it did not agree with the military judge’s ruling,” which created an
appearance of unlawful influence. Id. at 427. Nothing of the kind occurred in
Appellant’s case.
Appellant implies the conduct of Capt JP and Capt AS violated his consti-
tutional rights to confront witnesses and to be provided with exculpatory evi-
dence. See Olden v. Kentucky, 488 U.S. 227, 231 (1988); Brady v. Maryland,
373 U.S. 83, 87 (1963). We disagree. Capt JP and Capt AS did nothing to affect
the Defense’s access to TSgt BC, to seek his production as a witness, or to con-
front him if he were called at trial. Nor is there any indication the Government
improperly withheld information in its possession with regard to TSgt BC. The
Government’s concern that JC might withdraw her cooperation was legitimate.
While we do not endorse the methods used by Capt JP and Capt AS in this
case, we are satisfied that there was no impact on Appellant’s constitutional
rights.
Accordingly, we conclude beyond a reasonable doubt that the alleged un-
lawful influence did not place an intolerable strain upon the public’s perception
of the military justice system, and that an objective, disinterested, fully in-
formed observer would not harbor a significant doubt about the fairness of Ap-
pellant’s court-martial. Boyce, 76 M.J. at 249–50.
B. Due Process
1. Additional Background
Appellant argues that his Fifth Amendment 26 due process rights were vio-
lated because he was convicted on a theory of sexual assault that was not
charged. In his view, he was convicted of sexual assault because the court mem-
bers found that JC was incapable of consenting due to intoxication instead of
the charged bodily harm theory. Appellant argues the Government should
have charged the two theories in the alternative but by selecting only a bodily
harm theory “it allowed the members to arbitrarily impart their subjective
sense of how impaired they believed [JC] was at the time of the alleged offense.”
26 U.S. CONST. amend. V.
28
United States v. Horne, No. ACM 39717
Appellant cites 19 references in the trial counsel’s findings argument and re-
buttal argument that JC was “drunk, intoxicated, or blacked out.” Appellant
argues the Government cannot prove this error was harmless beyond a reason-
able doubt because the focus on JC’s alcohol use confused the members as
shown by the questions they asked about consent and capacity prior to and
after findings argument.
The Government answers that the court members convicted Appellant un-
der the charged bodily harm theory. The Government cites the evidence that
JC was competent to consent and demonstrated a lack of consent through phys-
ical and verbal conduct. The Government asserts the military judge instructed
on the correct elements and definitions for a bodily harm sexual assault. The
Government agrees with Appellant that during findings argument the trial
counsel made a series of references to the evidence of JC’s drunken state. How-
ever, in the Government’s view, these arguments were not framed as support-
ing a lack of capacity to consent, but were explanations of (1) Appellant’s op-
portunity to take advantage of JC; (2) JC’s memory gaps; or (3) why JC re-
sponded as she did.
Appellant submitted a reply brief which argues the Government’s answer
and its citations to the record support his position that he was convicted of
sexual assault because JC was incapable of consent.
2. Law
The Fifth Amendment’s due process clause “does not permit convicting an
accused of an offense with which he has not been charged.” United States v.
Tunstall, 72 M.J. 191, 192 (C.A.A.F. 2013) (quoting United States v. Girouard,
72 M.J. 5, 10 (C.A.A.F. 2011)). A specification tried by court-martial will not
pass constitutional scrutiny unless it both gives the accused notice of the
charge he or she must defend against and shields him or her from being placed
in double jeopardy. United States v. Turner, 79 M.J. 401, 404 (C.A.A.F. 2020)
(citations omitted). “The military is a notice-pleading jurisdiction.” United
States v. Fosler, 70 M.J. 225, 229 (C.A.A.F. 2011) (citation omitted). “A charge
and specification will be found sufficient if they ‘first, contain[ ] the elements
of the offense charged and fairly inform[ ] a defendant of the charge against
which he must defend, and second, enable[ ] him to plead an acquittal or con-
viction in bar of future prosecutions for the same offense.’” Id. (quoting Ham-
ling v. United States, 418 U.S. 87, 117 (1974)).
Article 120, UCMJ, presents various alternative theories of liability for the
offense of sexual assault. Article 120(b)(1)(B), UCMJ, as charged here, prohib-
its the commission of a sexual act by “causing bodily harm.” 10 U.S.C.
§ 920(b)(1)(B). Article 120(b)(2), UCMJ, addresses sexual acts committed by a
person who “knows or reasonably should know that the other person is asleep,
29
United States v. Horne, No. ACM 39717
unconscious, or otherwise unaware that the sexual act is occurring.” 10 U.S.C.
§ 920(b)(2). Article 120(b)(3)(A), UCMJ, further criminalizes sexual acts com-
mitted upon a person who is “incapable of consenting to the sexual act due to
impairment by any drug, intoxicant or other similar substance” when that in-
capacitation is either known by, or reasonably should be known by, the perpe-
trator. 10 U.S.C. § 920(b)(3)(A).
In order to find Appellant guilty of sexual assault under Article
120(b)(1)(B), UCMJ, by bodily harm as charged here, the Government was re-
quired to prove beyond a reasonable doubt that: (1) Appellant committed a sex-
ual act upon JC by causing penetration, however slight, of her vulva with his
penis, (2) he did so by causing bodily harm to her, and (3) he did so without her
consent. See Manual for Courts-Martial, United States (2016 ed.) (MCM), pt.
IV, ¶ 45.b.(3)(b). “Bodily harm” is defined as “any offensive touching of another,
however slight, including any nonconsensual sexual act or nonconsensual sex-
ual contact.” MCM, pt. IV, ¶ 45.a.(g)(3). In determining whether a person con-
sented to the conduct at issue, “[a]ll the surrounding circumstances are to be
considered,” and “lack of consent may be inferred based on the circumstances
of the offense.” MCM, pt. IV, ¶ 45.a.(g)(8)(C). Trial counsel may “argue the ev-
idence of record, as well as all reasonable inferences fairly derived from such
evidence.” United States v. Baer, 53 M.J. 235, 237 (C.A.A.F. 2000) (citation
omitted).
3. Analysis
Our court recently addressed and rejected a similar due process challenge
where a theory of bodily harm was charged and the victim “had no recollection
of whether she did or did not consent,” presumably as a result of intoxication.
United States v. Williams, No. ACM 39746, 2021 CCA LEXIS 109, at *53–54
(A.F. Ct. Crim. App. 12 Mar. 2021) (citations omitted) (unpub. op.). We reach
the same result in this case as in Williams. 27
Appellant claims that he was convicted of sexual assault of JC who was
incapable of consenting under Article 120(b)(3)(A), UCMJ, an uncharged of-
fense. We agree that Appellant was not charged with an offense under Article
120(b)(3)(A), UCMJ. But we conclude that Appellant was convicted of the
charged offense under Article 120(b)(1)(B), UCMJ, and that no due process vi-
olation occurred. We address the charging decision, which Appellant claims
27 Similar due process challenges have been rejected by other Courts of Criminal Ap-
peals. See United States v. Weiser, 80 M.J. 635, 642 (C.G. Ct. Crim. App. 2020); United
States v. Gomez, No. 201600331, 2018 CCA LEXIS 167, at *10–11 (N.M. Ct. Crim. App.
4 Apr. 2018) (unpub. op.), rev. denied, 78 M.J. 108 (C.A.A.F. 2018). We note that the
military judge cited Gomez when he ruled on the admissibility of evidence of JC’s blood
alcohol content which we address in Appellant’s next assignment of error.
30
United States v. Horne, No. ACM 39717
was defective, and then the trial events including the evidence presented, the
instructions of the military judge, and the trial counsel’s arguments. We also
address Appellant’s assertion that questions asked by the court members sup-
port his position that he was convicted of sexual assault of JC because she was
incapable of consenting.
a. Charging decision
Appellant was properly put on notice that he was charged with committing
sexual assault by bodily harm under Article 120(b)(1)(B), UCMJ. There is no
question that the specification expressly alleged every required element. Ap-
pellant was fairly informed that he must defend against a sexual assault by
bodily harm specification, and he is now able to plead a conviction of this of-
fense if a future prosecution occurred for this offense. See Fosler, 70 M.J. at
229.
Appellant claims that the Government was required to charge the bodily
harm and incapable of consent offenses in the alternative. We see no merit to
this assertion. “It is hardly a novel situation that the available evidence in a
particular case might meet the elements of multiple offenses, affording the
Government some discretion in its charging decisions.” United States v. Harris,
No. ACM 39640, 2020 CCA LEXIS 299, at *27 (A.F. Ct. Crim. App. 2 Sep. 2020)
(unpub. op.) (citing United States v. Elespuru, 73 M.J. 326, 329 (C.A.A.F.
2014)). In Harris, our court rejected an argument that the Government was
required to charge these same two offenses in the alternative. Id. at *26. We
see no reason to decide Appellant’s case differently. The Government had the
discretion to charge Appellant with both offenses in the alternative, or either
offense based on its assessment of the evidence. We find no merit to Appellant’s
claim that he had a due process right to have both offenses charged in the al-
ternative.
b. Trial Events
i) Evidence of JC’s Intoxication
The Government presented evidence that JC consumed alcohol voluntarily
prior to the offense. The evidence generally showed JC drank enough alcohol
that she was intoxicated before, during, and after the offense. The details of
the testimonies of each witness need not be repeated to resolve this assignment
of error. Generally, it is sufficient to state that JC’s intoxication was a signifi-
cant part of the evidence presented in Government’s case-in-chief.
We do note the Government attempted to quantify how intoxicated JC was
at the time of the offense with varying levels of success. For example, Mr. HE
testified that JC took a portable breathalyzer test at the hotel that showed a
“2.14 alcohol per mil” concentration though Mr. HE could not translate that
result to blood alcohol content. Additionally, Dr. GJ, the Government’s forensic
31
United States v. Horne, No. ACM 39717
toxicologist, testified that he had seen error rates as high as 20 to 25 percent
on portable breathalyzer results and opined that these devices are only de-
signed to let the user know whether or not alcohol is present. The Govern-
ment’s next effort to quantify JC’s intoxication was JC’s blood draw during the
SAFE, at 0820 hours or roughly five hours after the assault. Dr. GJ testified
that when JC’s blood was tested it contained ethanol at a concentration of 0.152
percent. 28 The Government’s final effort to quantify JC’s intoxication came
from a hypothetical question asked of Dr. GJ to determine if he could perform
a back extrapolation of alcohol content. Dr. GJ was asked to assume certain
particulars such as gender, weight, blood draw time, last meal time, last alco-
holic drink time, and other relevant considerations. Dr. GJ said his range
would be anywhere from 0.237 to .0.290 percent.
Our court has said before that “the extent to which [the victim] was intoxi-
cated . . . at the time [the appellant] committed the sexual act were part of the
‘surrounding circumstances’ that were ‘to be considered in determining
whether [the victim] gave consent.’” United States v. Campbell, No. ACM 38875
(reh), 2021 CCA LEXIS 170, at *35 (A.F. Ct. Crim. App. 21 Feb. 2021) (quoting
MCM, pt. IV, ¶ 45.a.(g)(8)(C)); see also Harris, unpub. op. at 26–27 (stating the
victim’s level of intoxication was part of the surrounding circumstances the
court members could evaluate to determine consent and reasonable mistake of
fact as to consent). The evidence in this case of JC’s intoxication, while a prom-
inent part of the Government’s evidence, remained a part of the surrounding
circumstances to be considered on whether the Government proved beyond a
reasonable doubt that JC did not consent and Appellant did not have an honest
and reasonable mistake of fact defense.
Additionally, this case involves evidence of JC’s physical resistance before
the penetration which supported the charged element that JC did not consent
and that Appellant caused her bodily harm. It also involved JC’s verbal pro-
tests to Appellant during the penetration where JC gave reasons why Appel-
lant should stop what he was doing.
After considering all the evidence presented to members, we have no due
process concerns that the evidence alone led to a conviction for an uncharged
offense.
28 JC’s urine was also collected at some point during the SAFE, though the time it was
collected was not specified in the report admitted in evidence. The testing results of
the urine showed JC’s urine contained ethanol at 0.234 percent. Dr. GJ explained the
higher concentration in the urine and the lower concentration in the blood indicated
“this individual was eliminating alcohol at the time of the specimen collection.”
32
United States v. Horne, No. ACM 39717
ii) Instructions Prior to Argument
The military judge’s instructions included the correct elements and defini-
tions of sexual assault by bodily harm. The instructions properly included the
element, as charged here, that the penetration of JC’s vulva by Appellant’s
penis was “without her consent.” The definition regarding consent came from
the statutory definition in 10 U.S.C. § 920(g)(8). The instructions on the mis-
take of fact defense were also correct. In the absence of evidence to the con-
trary, we presume the court members followed the instructions given to them
by the military judge. See United States v. McFadden, 74 M.J. 87, 90 (C.A.A.F.
2015).
Prior to findings argument, the court president asked “under the UCMJ,
what is the legal ability for an individual to give consent while under the in-
fluence of alcohol.” In a session outside of the court members’ presence, the
court president’s question was discussed. The military judge stated his intent
to refer the members back to the definition of consent which “means a freely
given agreement to the conduct at issue by a competent person” and that they
are directed to apply the plain meaning of the term, “competent person.” The
military judge asked whether either side objected. Neither did. 29 The military
judge instructed the members accordingly, and there were no further questions
before findings argument. We see nothing improper with the military judge’s
response to this question.
iii) Arguments
We also considered the references to JC’s intoxication in the trial counsel’s
findings argument and rebuttal argument. We do not “surgically carve out a
portion of the argument with no regard to its context.” Baer, 53 M.J. at 238.
Reviewing the trial counsel’s comments in this context, we find them focused
on two explanations: (1) why JC demonstrated a lack of consent as she did; and
(2) why JC’s memory contained significant gaps. The Government was re-
quired to prove the element that JC did not consent beyond a reasonable doubt
and was permitted to argue reasonable inferences from the evidence of JC’s
intoxication as part of the surrounding circumstances. We do not interpret the
trial counsel’s arguments about intoxication, numerous as they were, to have
invited the members to convict Appellant of an uncharged offense.
29 The military judge had discussed with the parties earlier whether the instructions
from United States v. Pease, 75 M.J. 180, 183 (C.A.A.F. 2016) regarding an “incompe-
tent person” and a person “incapable of consent” should be given. At that time, civilian
trial defense counsel stated that “[t]he definition of ‘a competent person’ isn’t neces-
sarily what’s misleading or confusing” but it would be when read in conjunction with
the definition of “incompetent person”’ from Pease. At this point in the trial, the De-
fense requested that “at least” no instruction be given on an incompetent person.
33
United States v. Horne, No. ACM 39717
The only counsel who argued about incapacity to consent was civilian trial
defense counsel who told the members, without objection, “You are not asked
to determine whether she is incapable of consenting. There is a completely sep-
arate charge for that.” After a sustained trial counsel objection on a different
point, civilian trial defense counsel returned to the topic of incapacity to con-
sent, without objection, stating “you are to determine whether or not this com-
petent individual did consent or did not consent. That [is] your only question
to answer.”
iv) Court Member Questions After Argument
Before deliberations began, the court president inquired whether all three
components of the charge and specification must be found for a finding of
guilty. The military judge answered that “all three must be proven beyond a
reasonable doubt.” A different member then asked a follow-up question about
voting on “each one of those specifications.” The military judge explained that
there was only one specification and that there is not a vote on each element
of the offense. The military judge also referred to the written instructions that
would be provided to the members and explained that if one or two elements
are satisfied, but not all three, then that determination is not guilty. The mil-
itary judge asked both sides if they had an objection to that instruction. Nei-
ther side did.
During findings deliberations, one final question was sent out from the
same member who had asked the last question before deliberations about vot-
ing on the elements. This question was whether the court could define legally
what a competent person was and the appropriate response was discussed in
a session outside of the members’ presence. The Government’s position was to
give the same instruction that was given when the court president asked a
similar question prior to findings argument. The Defense initially proposed an
instruction and the military judge agreed to give some of it with modification.
The military judge asked whether either side objected to his modification. Nei-
ther did. In an open session, the military judge repeated to the court members
that they were to apply the plain meaning of the word “competent” and that an
“additional instruction should be read in concert with that. It’s to aid you in
applying the plain meaning of that term.” The members agreed that they un-
derstood the purpose of the additional instruction. The military judge then re-
peated the consent definition and instructed
A “competent person” is a person who possesses the physical and
mental ability to consent. Additionally, to be able to freely make
an agreement, a person must first possess the cognitive ability
to appreciate the nature of the conduct in question, and then
possess the mental and physical ability to make and to com-
municate a decision regarding that conduct to the other person.
34
United States v. Horne, No. ACM 39717
v) Waiver of Alleged Instructional Error
The CAAF has held that when an appellant affirmatively declines to object
to the military judge’s instructions, the issue is waived. United States v. Davis,
79 M.J. 329, 332 (C.A.A.F. 2020) (citations omitted), cert. denied, 141 S. Ct. 355
(2020). The CAAF will not review waived issues, because affirmative waiver
leaves no error to correct on appeal. Id. (citation omitted). However, pursuant
to Article 66(c), UCMJ, 10 U.S.C. § 866(c), the Courts of Criminal Appeals have
the unique statutory responsibility to affirm only such findings of guilty and
so much of the sentence that they find are correct and “should be approved.”
This includes the authority to address errors raised for the first time on appeal
despite waiver of those errors at trial. See United States v. Hardy, 77 M.J. 438,
442–43 (C.A.A.F. 2018).
The Defense affirmatively stated that there were no objections to the mili-
tary judge’s instructions in response to the questions of the members. There-
fore, we find Appellant has waived any alleged error in the instructions. See
Davis, 79 M.J. at 331–32. We recognize our authority to pierce waiver to correct
a legal error in instructions, but decline to do so because we see no legal error
to correct. The military judge carefully navigated the instructional issues in
this case, and we see nothing in the instructions that would lead us to conclude
that the instructions led to Appellant being convicted of an uncharged offense.
c. Conclusion
We find no due process violation because Appellant was convicted of sexual
assault by bodily harm, and the record does not support a conclusion that he
was convicted of an uncharged offense. We do note that the Defense moved for
a mistrial once Appellant was convicted as charged and raised similar argu-
ments to those presented in this assignment of error. The military judge denied
the motion for mistrial, and we have already resolved Appellant’s Grostefon
issues regarding the mistrial motion and ruling adversely to him. In reviewing
this assignment of error, we considered the matters argued in the mistrial mo-
tion as well as the comments and ruling of the military judge before concluding
no due process violation occurred in this case.
Given our resolution of the due process challenge, we do not reach the ad-
ditional arguments by Appellant that the alleged violation was not harmless
beyond a reasonable doubt.
C. Admission of Evidence of Intoxication
1. Additional Background
The Defense initially filed a written motion to exclude evidence of JC’s port-
able breathalyzer results obtained by the German police because it was irrele-
35
United States v. Horne, No. ACM 39717
vant and unreliable. By the time the motion was argued, the scope was ex-
panded to also exclude the results of the forensic testing of JC’s urine and
blood. The Government requested the military judge consider inter alia the
results of the breath, blood, and urine tests, and related information and re-
ports which confirmed the presence of alcohol as described in the previous as-
signment of error. The Government presented a chart of the stages of acute
alcohol influence/intoxication by Kurt M. Dubowski, Ph.D. and called its foren-
sic toxicologist at the time, Dr. ES, to testify telephonically.
In his telephonic testimony, Dr. ES described the various effects of alcohol
consumption on mental abilities, physical abilities, and the impact on memory
and recall. Dr. ES explained the results of JC’s blood and urine testing, which
were analyzed by his laboratory, and explained that he could do a back extrap-
olation of JC’s blood alcohol level at the time of the offense. He concluded it
was .24, plus or minus 20–25 percent. Dr. ES testified that back extrapolations
are reasonable and scientifically acceptable. Dr. ES testified that breathalyz-
ers have been refined through the years though his preference is to “take a
more direct measure of the alcohol in the blood, by that route, versus the
breathalyzer.”
During argument on the motion, the Government indicated it only intended
to admit evidence of JC’s breath and blood testing and would not offer the urine
testing results. The Government then argued the breath and blood testing re-
sults were facts and circumstances of the charged offense and the testing re-
sults were the best evidence of JC’s intoxication level. The Government argued
the results were relevant to JC’s state of mind, her diminished ability to re-
spond, and to explain why JC did not remember portions of the evening. The
Government described the unfair prejudice to Appellant as minimal, asserting
“we are not trying to argue, in the least, that she was incapable of consenting.”
The Defense’s objection was “to the scientific bolstering” of the evidence
that JC drank alcohol. This included the results of the testing and the back
extrapolation by Dr. ES. The Defense argued the values themselves were
highly prejudicial in a case with members based on the known .08 alcohol con-
tent standard for a drunk driving offense. The Defense asserted that this evi-
dence alone would give the members a baseline to conclude JC was incapable
of consenting, despite how the case was charged.
The military judge issued a written “notice of ruling” on 10 November 2018,
about three weeks before Appellant’s trial on the merits. The notice of ruling
was on the “evidence of [JC’s] measured or calculated level of intoxication.” It
summarized the Defense’s objections as “centered on suppressing any refer-
ence to measured and calculated [blood alcohol content] levels, explanations of
how those measurements or calculations as well as inferences of clinical symp-
toms that could be drawn from a particular [blood alcohol content].” The notice
36
United States v. Horne, No. ACM 39717
of ruling explained that there were no challenges raised under Mil. R. Evid.
702–705 or United States v. Houser, 36 M.J. 392 (C.M.A. 1993), but the issues
were the relevance and the Mil. R. Evid. 403 balancing test given the charged
theory of bodily harm. In denying the defense motion, the military judge cited
generally to our sister service court’s opinion in United States v. Gomez, No.
201600331, 2018 CCA LEXIS 167 (N.M. Ct. Crim. App. 4 Apr. 2018) (unpub.
op.), that evidence of intoxication is relevant to “determining whether that per-
son consented to the sexual conduct at issue.” The notice of ruling did not con-
tain a Mil. R. Evid. 403 balancing test for this evidence. The notice of ruling
did not mention that the Government conceded it would not offer evidence of
JC’s urine testing.
Trial on the merits began on 3 December 2017. A new senior trial counsel
and trial counsel had been detailed to the case, though an uncertified assistant
trial counsel remained on the case. After the court members were seated, the
assistant trial counsel offered a series of prosecution exhibits into evidence in-
cluding Prosecution Exhibit 14, the results of JC’s blood and urine testing for
alcohol. Civilian defense counsel responded, “Subject to the previous objection
on what we believe to be relevance, no objection to this, Your Honor.” The mil-
itary judge responded that the Defense had “preserved that issue” and there
being no additional objection, admitted Prosecution Exhibit 14. During the
Government’s case-in-chief, Dr. GJ testified about JC’s blood and urine results.
Mr. HE, the German police investigator, testified to JC’s portable breathalyzer
testing results.
Prior to authenticating the record on 3 May 2019, the military judge issued
a written ruling which was marked as an appellate exhibit and directed to be
placed in the record of trial. The written ruling’s essential findings of fact in-
cluded (1) that Dr. ES was qualified as an expert “both during pretrial motion
practice and at trial;” and (2) “his testimony was helpful in that it assisted the
Court and then the trier of fact in understanding evidence related to [JC]’s
intoxication.” The military judge was correct that Dr. ES testified during pre-
trial motion practice. However, Dr. ES did not testify during the trial on the
merits; instead, Dr. GJ testified as the Government’s expert forensic toxicolo-
gist. We find the military judge’s findings of fact about Dr. ES being qualified
as an expert at trial, testifying at trial, and assisting the trier of fact are clearly
erroneous.
On the issue of relevance, the military judge’s written ruling is consistent
with the “notice of ruling.” Additionally, the written ruling stated that the mil-
itary judge “confirmed his conclusion” that the objected-to information was not
substantially outweighed by the dangers listed in Mil. R. Evid. 403’s balancing
test and provided analysis of the probative value, and likelihood of unfair prej-
udice, confusion of the issues, or misleading the members.
37
United States v. Horne, No. ACM 39717
Before us, Appellant asserts the military judge held an erroneous view of
the law regarding the relevance of evidence of intoxication and the admission
of the evidence was not harmless. The Government responds that the military
judge did not abuse his discretion in admitting the intoxication evidence as
part of the “all the surrounding circumstances” of the offense. On appeal, the
parties do not address whether the military judge’s “notice of ruling” covered
the urine testing results as the Government conceded during motion practice
that it was not offering those results and would redact them from their pro-
posed exhibit, or whether this issue was waived when the urine testing results
and later testimony were admitted. We address that matter in our analysis
below.
2. Law
We review a military judge’s decision to admit or exclude evidence for an
abuse of discretion.” United States v. Erikson, 76 M.J. 231, 234 (C.A.A.F. 2017)
(citation omitted). A military judge abuses his or her discretion when the mil-
itary judge’s “findings of fact are clearly erroneous, the court’s decision is in-
fluenced by an erroneous view of the law, or the military judge’s decision on
the issue at hand is outside the range of choices reasonably arising from the
applicable facts and the law.” United States v. White, 80 M.J. 322, 327 (C.A.A.F.
2020) (quoting United States v. Miller, 66 M.J. 306, 307 (C.A.A.F. 2008)). “The
abuse of discretion standard is a strict one, calling for more than a mere differ-
ence of opinion. The challenged action must be ‘arbitrary, fanciful, clearly un-
reasonable, or clearly erroneous.’” United States v. White, 69 M.J. 236, 239
(C.A.A.F. 2010) (quoting United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F. 2010)).
Where a military judge conducts a proper balancing test under Mil. R. Evid.
403, an appellate court will not overturn the ruling absent a clear abuse of
discretion. United States v. Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010) (quoting
United States v. Ruppel, 49 M.J. 247, 251 (C.A.A.F. 1998)). However, we “give[ ]
military judges less deference if they fail to articulate their balancing analysis
on the record, and no deference if they fail to conduct the Rule 403 balancing.”
United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000) (citation omitted).
3. Analysis
As noted above, the military judge’s written ruling contained a few clearly
erroneous findings of fact regarding Dr. ES testifying before the trier of fact
when Dr. GJ did. But this abuse of discretion does not affect the military
judge’s “notice of ruling” which found the evidence of intoxication relevant and
admissible as it was issued before trial on the merits commenced. Therefore,
we can still review the notice of ruling for an abuse of discretion.
38
United States v. Horne, No. ACM 39717
The military judge’s notice of ruling concluded the intoxication was rele-
vant after considering our sister service court’s decision in Gomez and the stat-
utory definition of consent in Article 120(g)(8)(C), UCMJ, 10 U.S.C.
§ 920(g)(8)(C). We agree that JC’s intoxication was relevant as part of “all the
surrounding circumstances” to be considered on the issue of consent consistent
with Article 120(g)(8)(C), UCMJ. We find no abuse of discretion on the military
judge’s notice of ruling on the question of relevance.
The notice of ruling does not show that the military judge conducted a Mil.
R. Evid. 403 balancing test. Therefore, we will afford the military judge no dis-
cretion on this part of his ruling. 30 However, even affording the military judge
no deference because he failed to state that he conducted a balancing test in
his “notice of ruling” or articulate his reasons, we conclude the probative value
of the evidence of JC’s intoxication was not substantially outweighed by the
countervailing interests in Mil. R. Evid. 403. The evidence was important to
the assessment of JC’s memory and to the issues of consent and whether an
honest mistake of fact, if held by Appellant, would be reasonable under the
circumstances. The manner in which the evidence was presented, including
the use of expert testimony of Dr. GJ, significantly reduced the danger of unfair
prejudice, confusion of the issues, or misleading the members. The military
judge’s instructions before findings argument and in response to court member
questions also reduced these same dangers.
Lastly, we must briefly address the Government’s change in position from
motion practice to trial about admitting evidence of JC’s urine results. The
record gives us little insight into when or why the Government reversed course
and decided to offer the urine results. We can discern that the Defense was not
caught off-guard when the Government offered Prosecution Exhibit 14 or when
Dr. GJ testified to the urine results. The Defense stood on its relevance objec-
tion with the exhibit and offered no objection to Dr. GJ’s testimony. Therefore,
we find that if there was an error from the Government’s change in position, it
was waived. 31
30 R.C.M. 905(f) permitted the military judge to sua sponte reconsider any ruling, other
than one amounting to a finding of not guilty, prior to authentication. But, we cannot
untangle the military judge’s clearly erroneous findings of fact in his written ruling
from the Mil. R. Evid. 403 balancing test he conducted in that written ruling. In our
view, the best approach for trial judges is to articulate the Mil. R. Evid. 403 balancing
test analysis at the time of the ruling.
31 We express our concerns that the Government failed to (1) document its reversal of
position on the record; (2) state when it occurred; (3) state that the Defense was noti-
fied; and (4) offer its view on whether the change in position impacted any motion that
had been submitted to the military judge or had already been ruled upon by the mili-
tary judge.
39
United States v. Horne, No. ACM 39717
D. Legal and Factual Sufficiency
1. Additional Background
Appellant argues on appeal as he did at trial that JC’s lack of credibility
and “the inconsistencies between her statements and the other evidence intro-
duced by the Government leaves any rational fact finder with many unan-
swered questions, and thus reasonable doubt.”
2. Law
We review issues of legal and factual sufficiency de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (citation omitted). Our assess-
ment of legal and factual sufficiency is limited to the evidence produced at tri-
al. Dykes, 38 M.J. at 272 (citations omitted). As such, we cannot consider tes-
timony from pretrial motions practice. See United States v. Beatty, 64 M.J. 456,
458–59 (C.A.A.F. 2007).
“The test for legal sufficiency is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” United
States v. Robinson, 77 M.J. 294, 297–98 (C.A.A.F. 2018) (citation omitted). “[I]n
resolving questions of legal sufficiency, we are bound to draw every reasonable
inference from the evidence of record in favor of the prosecution.” United States
v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citations omitted). As a result,
“[t]he standard for legal sufficiency involves a very low threshold to sustain a
conviction.” United States v. King, 78 M.J. 218, 221 (C.A.A.F. 2019) (alteration
in original) (citation omitted). “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).
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.” United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). “In conducting
this unique appellate role, we take ‘a fresh, impartial look at the evidence,’
applying ‘neither a presumption of innocence nor a presumption of guilt’ to
‘make [our] own independent determination as to whether the evidence consti-
tutes proof of each required element beyond a reasonable doubt.’” Wheeler, 76
M.J. at 568 (alteration in original) (quoting Washington, 57 M.J. at 399).
In order to convict Appellant of the charged sexual assault in violation of
Article 120, UCMJ, the Government was required to prove beyond a reasonable
doubt: (1) that at or near Wiesbaden, Germany, on or about 11 July 2017, Ap-
40
United States v. Horne, No. ACM 39717
pellant committed a sexual act upon JC by penetrating her vulva with his pe-
nis; and (2) that Appellant did so by causing bodily harm, to wit: penetrating
JC’s vulva with his penis without her consent. See MCM, pt. IV, ¶ 45.b.(4)(b).
“Sexual act” includes “contact between the penis and vulva . . . and for pur-
poses of this subparagraph contact involving the penis occurs upon penetra-
tion, however slight.” MCM, pt. IV, ¶ 45.a.(g)(1).
“Bodily harm” means “any offensive touching of another, however slight,
including any nonconsensual sexual act or nonconsensual sexual contact.” See
MCM, pt. IV, ¶ 45.a.(g)(3). “Consent” means a freely given agreement to the
conduct at issue by a competent person. See MCM, pt. IV, ¶ 45.a.(g)(8)(A). An
expression of lack of consent through words or conduct means there is no con-
sent. Id. “Lack of consent may be inferred based on the circumstances of the
offense. All the surrounding circumstances are to be considered in determining
whether a person gave consent, or whether a person did not resist or ceased to
resist because of another’s person’s actions.” MCM, pt. IV, ¶ 45.a.(g)(8)(C).
“The burden is on the actor to obtain consent rather than the victim to manifest
a lack of consent.” United States v. McDonald, 78 M.J. 376, 381 (C.A.A.F. 2019).
The defense of mistake of fact as to consent would apply if Appellant, be-
cause of ignorance or mistake, incorrectly believed that JC consented to the
sexual act. See R.C.M. 916(j)(1). In order to rely on a mistake of fact as to a
consent defense, Appellant’s belief must have been reasonable under all the
circumstances. See id.; see generally United States v. Jones, 49 M.J. 85, 91
(C.A.A.F. 1998) (quoting United States v. Willis, 41 M.J. 435, 438 (C.A.A.F
1995)). Once raised, the Government bears the burden to prove beyond a rea-
sonable doubt that the defense does not exist. R.C.M. 916(b)(1); see McDonald,
78 M.J. at 379.
3. Analysis
As to the first element of the offense, the members could have determined
there is abundant evidence that, at the time and place alleged, Appellant pen-
etrated JC’s vulva with his penis based on JC’s testimony at trial and the cor-
roborating DNA evidence. As such the only remaining issues are whether JC
did not consent, and if so, whether Appellant had a reasonable mistake of fact
as to JC’s consent.
Beginning with consent, the members could have reasonably determined
that JC’s account of the assault indicated she manifested a lack of consent. She
described being forcibly pushed into the room and onto the bed; physically re-
sisting while having her clothes removed by rolling from side to side; resisting
Appellant’s kisses by turning her head from side to side; and as or shortly after
Appellant penetrated her, crying out regarding her marriage, Appellant’s mar-
41
United States v. Horne, No. ACM 39717
riage, and her possible pregnancy. The members could have reasonably deter-
mined that JC’s testimony about actual resistance demonstrated that she did
not consent.
Although Appellant does not argue on appeal that he had a reasonable mis-
take of fact as to JC’s consent, 32 the Government was still required to prove
beyond a reasonable doubt that Appellant was not so mistaken. Here, the mem-
bers could have reasonably determined that even if Appellant held such a mis-
take of fact, it was not objectively reasonable under all the circumstances.
Appellant raises ten reasons why the evidence is legally and factually in-
sufficient. The first is that there are too many conflicts with JC’s testimony
both internally and externally with other evidence which leave any rational
factfinder with unanswered questions. Appellant questions why JC only re-
members “facts that benefit the government’s case?” As examples, Appellant
notes that JC did not recall engaging with other males on the patio; straddling
LC’s lap; crying in the bathroom over her previous miscarriage; mentioning in
the bathroom that she may be pregnant again; departing the elevator with Ap-
pellant; going to LC’s room; or after the assault telling LC that she was not
drunk or that her husband was going to think she was a “whore.” Appellant
argues that these events happened either “immediately before or after the in-
cident; and yet, JC conveniently does not remember any of these actions occur-
ring.” However, the members could have determined that the gaps in memory
were not “convenient” as Appellant claims, but explained by the testimony of
Dr. GJ who explained how alcohol consumption can lead to “impairment in
memory” and “a continuum of effects” that are based on an individual’s previ-
ous exposure to alcohol and many physical factors. Further, the members may
have determined these gaps in memory did not contradict JC’s testimony con-
cerning the essential elements of the offense.
Appellant’s second reason involves the beer bottle in JC’s bathroom and
why her toilet seat was “lifted.” Appellant argues that he would have been un-
able to use both his arms to push JC into her room with a beer bottle in his
hand and questions why her testimony does not include any reference to Ap-
pellant using the bathroom. The members could have again concluded that
these facts do not contradict her testimony concerning the essential elements
32 The military judge and parties agreed the evidence raised the issue of reasonable
mistake of fact as to consent. In particular, the military judge cited two prosecution
exhibits that contained a statement by JC to Dr. K that JC had confronted Appellant
immediately after the assault, and Appellant responded to the effect that he did not do
anything she did not want to do. JC was not asked about this statement during her
trial testimony.
42
United States v. Horne, No. ACM 39717
of the offense. The Government did not need to prove how the beer bottle came
to be in the bathroom or when the toilet seat was raised.
Appellant’s third reason is that JC changed facts in her testimony from
prior statements as “deliberate lies spun for the purpose of ensuring a timeline
provided by other witnesses” which better coincided with her statement. Ex-
amples provided by Appellant include her changing the date of her last men-
struation; her statement to Dr. K that Appellant “followed her into the room;”
and her statement to SA LJ that she was “already in her room and asleep.”
Regarding JC’s menstruation, the members could have determined that the
date of her previous menstruation was an error that JC made when she talked
to Dr. K and later repeated to Dr. N or that JC’s trial testimony was the error.
Regardless of when the error occurred, JC’s last menstruation was not an es-
sential element of the offense. JC’s statement to Dr. K about Appellant follow-
ing her would explain how Appellant may have had the opportunity to enter
her room and use the restroom. The members could have reasonably believed
this occurred before the first visit to LC’s room rather than immediately prior
to the assault. Without question, JC’s statement to SA LJ about being “already
asleep” when she heard a knock on her door contradicted JC’s trial testimony
and her earlier statement to Dr. K. The members could have reasonably deter-
mined this contradiction, while present, did not raise reasonable doubt about
the essential elements of the offense and was not the product of a deliberate lie
by JC.
Appellant’s fourth argument is that JC’s testimony changed the “nature of
the assault” from “pure resistance” to “continuously blacking out” which makes
her testimony less credible. This argument is more about the testimony of Dr.
K and Dr. N that JC did not tell them that she lost consciousness. It does not
appear that Dr. K or Dr. N asked JC whether there were things she did not
remember, and it is very reasonable for the term “a loss of consciousness” to
mean different things to different people, particularly to someone who is either
still drunk or sleep deprived. Additionally, until JC was questioned about sim-
ple things, like did she remember how she went upstairs to her room, she may
not have appreciated how significant the gaps were in her memory. There is
little question that by trial JC’s memory gaps were well known. A reasonable
factfinder would consider JC’s use of terms like “passed out” or “blacked out”
in her testimony to describe the times where she could not recall what occurred
but she knew that some time must have passed.
Appellant’s fifth argument is that JC and Appellant both should have sus-
tained injuries during the assault. However, the members could have relied on
Appellant’s own expert Ms. MO to explain the lack of injuries on both JC and
Appellant. As for JC’s lack of reported injuries, Ms. MO testified that non-con-
43
United States v. Horne, No. ACM 39717
sensual sex can occur without physical trauma; and there is no diagnostic in-
jury for sexual assault. As for Appellant, JC never testified that she hit or
scratched Appellant, and the members could have concluded that based on JC’s
description of the assault and her intoxication level that no injuries would have
been found. Moreover, Ms. MO testified that everyone has a different baseline
for bruising and she could not say how long a particular bruise, if present,
would last. Reasonable court members could have also determined that if Dr.
K’s clinic used blue dye when JC reported pain in her vaginal area, like CPT
MM would have used, it may have shown injuries on JC’s external genitalia
that Dr. K could not see with the naked eye.
Appellant’s sixth argument is that if JC cried out as she stated during her
testimony then someone in the hotel should have heard her. However, Appel-
lant seemingly ignores the testimony of SrA CB who stated that she did not
remember hearing any noise outside her room or noise that she thought came
from some other place in the hotel. Nor did any other witness staying in the
hotel testify that the walls were so thin that JC’s cries about her marriage and
husband, Appellant’s marriage, and possibly being pregnant were likely to be
heard.
Appellant’s seventh argument is JC’s testimony showed that her clothes
should have been torn or ripped and questions why they were “neatly folded.”
Appellant’s characterization of the clothes being neatly folded is not supported
by the record and Mr. HE denied as much during his testimony. JC’s black
sweatpants were found “folded inwards, nested” somewhat covered by the bed’s
“cover” which looks like a comforter. JC’s bra and tank top were under the
luggage rack, an odd location, and the bra was twisted around the tank top.
The evidence did not show any tears or rips in JC’s clothing, but JC also never
claimed that she heard clothing ripping or tearing when Appellant removed
her clothes.
Appellant’s eighth argument is that if he had just sexually assaulted JC he
would not have assisted her. However, the Government was not required to
prove why Appellant assisted JC after he assaulted her by finding SrA CB.
Further, the members could have reasonably concluded that Appellant’s re-
sponse was consistent with his apology to JC that he was sorry, and that he
hoped SrA CB would calm JC down when he could not.
Appellant’s ninth argument is that JC fabricated the allegation against
him to hide another possible miscarriage caused by her drinking that evening
and consensual intercourse with Appellant. However, the members could have
discounted this theory for two reasons: (1) based on their observations of JC’s
testimony during trial and their assessment of her credibility; and (2) based on
the testimony of LC concerning her observations of JC the second time Appel-
lant and JC went to LC’s room. On the second reason, LC testified that JC
44
United States v. Horne, No. ACM 39717
appeared “almost like she was kind of out of it, like, almost like sleep walking,
just—they both looked drunk, but it was like less of a happy drunk and more
of a tired drunk.” Members could have concluded that LC’s testimony sup-
ported JC because it was unlikely JC consented to sexual intercourse shortly
after appearing so tired that she was almost sleep walking. We also note that
the members could have determined that if JC’s intent was to hide a miscar-
riage, her alcohol consumption, and her infidelity from her husband, the last
thing she would want to do is ask Appellant to get SrA CB and then have SrA
CB notify the German police both of which would increase the risk that her
husband would find out.
Finally, Appellant’s tenth claim is that there is a reasonable explanation
other than guilt. Appellant posits a theory that JC wanted to “let loose and
have fun.” At 0252 JC used her key to access her room and something about
that process made her and Appellant decide they needed her facility access
badge. As such, they went to LC’s room. “Exactly nine minutes later, they were
back at JC’s room” but attempted to open the room with Appellant’s key. Ap-
pellant then argues that “[t]heir inability to access the room with his room key
likely prompted them to think they had to go back to [LC’s] room to retrieve
another key or badge. They went back to [LC]’s room and exactly nine minutes
later, were back at JC’s room.” At that point Appellant entered JC’s room with
her while still carrying his beer bottle and used JC’s restroom leaving the toilet
seat up and the beer bottle on the bathroom counter. Once he exited the bath-
room he observed JC as she was changing clothes and which was “arousing,”
they began kissing, and “once their clothes were removed, he performed oral
sex on her, followed by vaginal intercourse.”
However, the members could easily discount this theory based on the evi-
dence before them and conclude that the inferences Appellant wanted drawn
from the evidence were unreasonable. Most prominently, the members would
have to discount JC’s testimony and speculate, without evidence, that Appel-
lant witnessed JC changing her clothes, that this aroused him, and that their
kissing was mutual. There was no direct evidence on these points, nor were
there reasonable inferences to be made from the other evidence. In a review of
legal and factual sufficiency we are limited to the evidence produced at trial.
Dykes, 38 M.J. at 272. Additionally, LC also did not provide testimony that
Appellant was carrying a beer bottle during either visit and did not testify
about whether JC had changed into sweatpants or was still wearing her jeans
during both visits. Further, the members could have relied on LC’s testimony
concerning JC’s demeanor the second time JC and Appellant came to her room
as well as JC’s lack of interest in Appellant throughout the entire night in
evaluating the evidence. When coupled with Appellant’s prior interest in JC, a
rational factfinder could have found beyond a reasonable doubt that Appellant
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United States v. Horne, No. ACM 39717
penetrated JC’s vulva with his penis without her consent and her physical and
verbal resistance demonstrated that this was a nonconsensual sexual act.
Drawing “every reasonable inference from the evidence of record in favor of
the [P]rosecution,” the evidence was legally sufficient to support Appellant’s
conviction beyond a reasonable doubt. Barner, 56 M.J. at 134 (citations omit-
ted). Moreover, having weighed the evidence in the record of trial and having
made allowances for not having personally observed the witnesses as the mem-
bers did, we are convinced of Appellant’s guilt beyond a reasonable doubt. See
Turner, 25 M.J. at 325. Appellant’s conviction is both legally and factually suf-
ficient.
E. Mil. R. Evid. 412
1. Additional Background
Trial defense counsel filed two motions to admit evidence under Mil. R.
Evid. 412. Only the second ruling by the military judge is at issue in this ap-
peal. Prior to ruling, the military judge conducted a closed session where JC
testified telephonically. Appellant testified in person for the limited purpose of
the motion. In general, the Defense sought to admit evidence that immediately
prior to the penetration alleged in the charged offense JC had engaged in con-
sensual sexual behaviors with Appellant. The Defense argued the proffered
evidence was relevant to the charged offense and the mistake of fact defense
and admissible under Mil. R. Evid. 412(b)(1)(B) and (C).
In support of the Defense’s argument, Appellant testified that JC (1) strad-
dled him; (2) kissed him during the straddling; (3) assisted him when he re-
moved her pants; (4) moaned when he performed oral sex on her; and (5) as-
sisted him when he took off his shorts. Appellant also testified that he kissed
JC “up her torso” but not how JC responded. The military judge ruled that
Appellant could testify to all of these matters in the Defense’s case-in-chief.
Trial defense counsel also wanted to cross-examine JC about these matters
in the Government’s case-in-chief. Accordingly, in the closed hearing, JC was
called as a witness by the Defense and questioned by the parties and the mili-
tary judge about her memory of what occurred prior to penetration. Civilian
trial defense counsel started the questioning in this area by asking JC whether
she recalled straddling Appellant prior to vaginal intercourse. JC responded “I
did not willingly consent to any physical relations with Staff Sergeant Horne.”
When asked if she leaned in and kissed Appellant, JC responded “Ma’am I did
not willingly consent to any physical relations with Staff Sergeant Horne.” At
this point, the military judge interceded and instructed JC that her responses
could be interpreted three different ways: (1) she did not remember; (2) it did
not happen; or (3) she was being non-responsive. The military judge stated he
46
United States v. Horne, No. ACM 39717
would not guess what JC meant and that she was required to answer the direct
questions that were posed.
Thereafter, JC testified that she did not recall: (1) straddling Appellant; (2)
ever kissing Appellant back; (3) taking off her own pants; or (4) assisting Ap-
pellant in taking off his shorts and underwear. JC recalled Appellant kissing
her body, but she did not recall moaning in pleasure while he did so. JC also
recalled Appellant performing oral sex on her. JC was then asked by civilian
trial defense counsel, “Do you recall moaning and what sounded like pleasure
while he performed the oral sex on you?” JC responded “No. Absolutely not.”
The trial counsel sought to clarify JC’s responses by asking “When you’re
saying you don’t recall, you mean, those things didn’t happen in your memory
of the interactions.” After requesting some additional clarification, JC testified
as to the straddling, “In my eyes, that did not happen.” JC stated “absolutely
not” on whether she helped Appellant remove his “pants.” JC was then asked
“you didn’t moan in pleasure during any of this, the sexual assault?” JC re-
sponded. “No sir. No. That’s disgusting.” Finally, JC admitted there were gaps
in her memory but there was never any part of the sexual interaction with
Appellant that was consensual.
The military judge issued a written “notice of ruling” prior to trial which
was supplemented with another written ruling on 3 May 201933 prior to au-
thentication. The supplemental ruling stated that the notice of ruling was
“adopted in its entirety.”
The notice of ruling permitted cross-examination of JC in two areas: (1)
that Appellant performed oral sex on her and (2) that he kissed her body. JC’s
direct examination at trial covered both of these topics.
In the notice of ruling, the military judge limited cross-examination of JC
in the other areas using the below rationale:
[U]nless and until the defense can produce admissible evidence
during the court-martial . . . beyond flat denials by [JC] on cross-
examination during the government case in chief, it has failed to
meet either identified exception to [Mil. R. Evid.] 412. The Court
specifically notes that the consistent testimony and accounts of
[JC] on this topic strongly suggest that she has no recollection of
the specific acts in this category, which further undermines the
expected utility of reference thereto in determining her credibil-
ity in the absence of contradictory evidence.
33 In one place, this supplemental ruling is incorrectly dated 3 May 2018.
47
United States v. Horne, No. ACM 39717
Without some connection to the accused’s actions, decisions or
state of mind, this information is not clearly relevant, material
or favorable to the defense. The Court has considered the de-
fense’s arguments that even without accompanying evidence it
has met the exception of [Mil. R. Evid.] 412(b)(1)(C) (e.g., attack-
ing her general credibility and exploring lapses in memory).
They are unavailing as the information sought, barring a com-
plete reversal from the witness, would merely be the manner in
which an event is rejected as having not occurred within the
greater context of confrontation over the charged offense and
several surrounding matters still a part of [JC]’s recollection.
Even if this information was minimally relevant, without evi-
dence connecting it to the accused’s actions, decisions or state of
mind, it is not directly and substantially linked to any material
fact in issue, understanding the defense will still have several
and distinct lines of impeachment that remain available. More-
over, that minimal relevance is substantially outweighed by the
danger of unfair prejudice, confusion of the issues and mislead-
ing the court members. A reasonable panel would not receive a
different impression of [JC]’s credibility if the defense were per-
mitted to reference acts she has consistently reported no
memory of within the government case in chief. Unless and un-
til, of course, some connection is drawn with admissible evidence
during the court-martial to the events actually occurring and the
accused’s knowledge preceding the alleged sexual assault.
The military judge noted that the Defense had the opportunity to request
reconsideration in a hearing without the court members. While not in his no-
tice of ruling, during argument on the motion the military judge explored with
the Defense how to handle the possibility that JC’s memory would change be-
tween the time of her telephonic testimony on the motion and the time she
testified at trial. The military judge noted that JC could be called in a session
outside the members’ presence to confirm that her memory had not changed.
The Defense did not ask for such a hearing before JC’s cross-examination and
did not move for reconsideration of the military judge’s ruling.
In his 3 May 2019 supplemental Mil. R. Evid. 412 ruling the military judge
made several essential findings of fact including:
The defense called [JC] as a witness in support of an earlier mo-
tion but developed responses relevant to this filing in that ex-
change. Having personally observed [JC]’s telephonic and then
live testimony on multiple occasions, the Court found her alert
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United States v. Horne, No. ACM 39717
and capable of following questioning from the defense, the gov-
ernment and the military judge. Across the various forms of ev-
idence and the testimony presented, she has consistently re-
ported no memory of the acts the defense sought to reference
through cross-examination during the government’s case and,
potentially, examination of the accused during any defense case.
2. Law
“We review a military judge’s decision to admit or exclude evidence for an
abuse of discretion.” Erikson, 76 M.J. at 234 (citation omitted). The law regard-
ing the abuse of discretion standard is cited above in our resolution of Appel-
lant’s third assignment of error. White, 80 M.J. at 327; Lloyd, 69 M.J. at 99.
The application of Mil. R. Evid. 412 to proffered evidence is a legal issue
that appellate courts review de novo. United States v. Roberts, 69 M.J. 23, 27
(C.A.A.F. 2010) (citation omitted). Mil. R. Evid. 412 provides that in any pro-
ceeding involving an alleged sexual offense, evidence offered to prove the al-
leged victim engaged in other sexual behavior or has a sexual predisposition is
generally inadmissible, with three limited exceptions. The burden is on the
defense to overcome the general rule of exclusion by demonstrating an excep-
tion applies. United States v. Carter, 47 M.J. 395, 396 (C.A.A.F. 1998) (citation
omitted).
The second exception under Mil. R. Evid. 412 includes “evidence of specific
instances of sexual behavior by the alleged victim with respect to the person
accused of the sexual misconduct offered by the accused to prove consent . . . .”
Mil. R. Evid. 412(b)(1)(B). Evidence otherwise admissible under Mil. R. Evid.
412(b)(1)(B) may be excluded “if its probative value is substantially outweighed
by a danger of . . . unfair prejudice, confusing the issues, misleading the mem-
bers, undue delay, wasting time, or needlessly presenting cumulative evi-
dence.” Mil. R. Evid. 403. Where a military judge conducts a proper balancing
test under Mil. R. Evid. 403, an appellate court will not overturn the ruling
absent a clear abuse of discretion. United States v. Ediger, 68 M.J. 243, 248
(C.A.A.F. 2010) (quoting United States v. Ruppel, 49 M.J. 247, 251 (C.A.A.F.
1998)).
The third exception under Mil. R. Evid. 412 provides that the evidence is
admissible if its exclusion “would violate the constitutional rights of the ac-
cused.” Mil. R. Evid. 412(b)(1)(C). Generally, evidence of other sexual behavior
by an alleged victim is constitutionally required and “must be admitted within
the ambit of [Mil. R. Evid.] 412(b)(1)(C) when [it] is relevant, material, and the
probative value of the evidence outweighs the dangers of unfair prejudice.”
Ellerbrock, 70 M.J. at 318 (citation omitted). Relevant evidence is evidence that
49
United States v. Horne, No. ACM 39717
has any tendency to make the existence of any fact of consequence to determin-
ing the case more probable or less probable than it would be without the evi-
dence. Mil. R. Evid. 401. Materiality “is a multi-factored test looking at the
importance of the issue for which the evidence was offered in relation to the
other issues in this case; the extent to which the issue is in dispute; and the
nature of the other evidence in the case pertaining to th[at] issue.” Ellerbrock,
70 M.J. at 318 (alteration in original) (internal quotation marks and citations
omitted). The dangers of unfair prejudice to be considered “include concerns
about ‘harassment, prejudice, confusion of the issues, the witness’ safety, or
interrogation that is repetitive or only marginally relevant.’” Id. (quoting Del-
aware v. Van Arsdall, 475 U.S. 673, 679 (1986)). “If after application of the
[Mil. R. Evid.] 403 factors the military judge determines that the probative
value of the proffered evidence outweighs the danger of unfair prejudice, it is
admissible no matter how embarrassing it might be to the alleged victim.”
United States v. Gaddis, 70 M.J. 248, 256 (C.A.A.F. 2011).
Credibility assessments are not an appropriate element of a military
judge’s Mil. R. Evid 412(b)(1)(C) analysis. United States v. Leonhardt, 76 M.J.
821, 827 (A.F. Ct. Crim. App. 2017). The Defense is not required to convince
the military judge that the proffered evidence is true, rather the military judge
must decide whether the proffered evidence is relevant and otherwise admis-
sible. Id.“[T]rial judges retain wide latitude . . . to impose reasonable limits on such
cross-examination based on concerns about, among other things, harassment,
prejudice, . . . or interrogation that is repetitive or only marginally relevant.”
Gaddis, 70 M.J. at 256 (first omission in original) (quoting Van Arsdall, 475
U.S. at 679) (additional citations omitted). In determining whether the exclu-
sion of evidence deprived Appellant of a fair trial or an opportunity for cross-
examination, we ask whether “[a] reasonable jury might have received a sig-
nificantly different impression of [the witness]’s credibility had [defense] coun-
sel been permitted to pursue his proposed line of cross-examination.” Van Ars-
dall, 475 U.S. at 680.
Mil. R. Evid. 103(e) states, “In a court-martial composed of a military judge
and members, to the extent practicable, the military judge must conduct a trial
so that inadmissible evidence is not suggested to the members by any means.”
Mil. R. Evid. 611(a) instructs, “The military judge should exercise reasona-
ble control over the mode and order of examining witnesses and presenting
evidence so as to: (1) make those procedures effective for determining the truth;
(2) avoid wasting time; and (3) protect witnesses from harassment or undue
embarrassment.”
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United States v. Horne, No. ACM 39717
3. Analysis
Appellant’s counsel argues that the military judge had an erroneous view
of the law because “[o]nce impeachment evidence is deemed to be relevant, the
military judge should permit the accused to cross-examine the respective wit-
ness. Requiring [Appellant] to first put forth the evidence in his case-in-chief
runs counter to controlling law and precludes [Appellant] from conducting an
effective cross-examination.” Appellant’s counsel acknowledges that Mil. R.
Evid. 611(a) allows a military judge to control the mode and order of interro-
gating witnesses but argues that the military judge preemptively shut the door
completely “on otherwise relevant cross-examination.” Appellant’s counsel ar-
gues the preclusion of the cross-examination was not harmless beyond a rea-
sonable doubt because JC only recalled facts that were helpful to her or the
Government winning the case and that she “did not recall” unfavorable facts.
Appellant personally identifies additional arguments that were raised by
his military defense counsel in his clemency request. Some of these arguments
included that (1) the military judge gave preferential treatment to JC over Ap-
pellant in his ruling; and (2) Appellant could not fully explore the incredulity
of JC’s memory gaps without giving up his constitutional right to remain silent.
The Government answers that the military judge did not abuse his discre-
tion because the evidence had low probative value and could not be used as
substantive evidence because JC could not testify that the events occurred. The
Government notes on the latter point that civilian trial defense counsel con-
ceded as much during argument on the motion. Regarding impeachment of JC,
the Government argues that without Appellant’s testimony, there was no con-
tradictory evidence to suggest JC was being untruthful about the inability to
recall certain events. Further, the Government argues the evidence had low
materiality because Appellant had plenty at his disposal to impeach JC’s cred-
ibility, memory, and motives to fabricate and the members would not have re-
ceived a significantly different impression of JC had the questioning been al-
lowed.
We need not reach each nuance of each of the parties’ arguments. Rather,
we focus on one overarching issue: whether the military judge correctly applied
the law when he determined “unless and until the defense can produce admis-
sible evidence during the court-martial . . . beyond the flat denials by [JC] on
cross-examination during the government case in chief, it has failed to meet
either identified exception to [Mil. R. Evid.] 412.” As best as we can determine,
the military judge concluded that the applicability of the Mil. R. Evid.
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United States v. Horne, No. ACM 39717
412(b)(1)(C) exception was conditioned on whether the Defense produced ad-
missible evidence during the court-martial. 34 In our view, the Defense had al-
ready demonstrated that it had admissible evidence, in the form of Appellant’s
testimony, and we see nothing in the case law applying the exception in Mil.
R. Evid. 412(b)(1)(C) that required the Defense to admit the evidence, such as
through trial testimony by Appellant or through other admissible evidence.
Therefore, we will assume without deciding that the military judge was influ-
enced by an erroneous view of the law. Rather than conduct our own assess-
ment of relevance, materiality, and whether the probative value of the evidence
outweighs the dangers of unfair prejudice, we will test for whether the as-
sumed error was harmless beyond a reasonable doubt.
There are five non-exclusive factors to assess whether the assumed error
was harmless beyond a reasonable doubt:
[(1)] [T]he importance of the witness’ testimony in the prosecu-
tion’s case, [(2)] whether the testimony was cumulative, [(3)] the
presence or absence of evidence corroborating or contradicting
the testimony of the witness on material points, [(4)] the extent
of cross-examination otherwise permitted, and, of course, [(5)]
the overall strength of the prosecution’s case.
Ellerbrock, 70 M.J. at 320 (second alteration in original) (quoting Van Arsdall,
475 U.S. at 684). We address the above five factors and four additional matters
before concluding that the assumed error in limiting JC’s cross-examination
was harmless beyond a reasonable doubt.
Assessing the first factor, JC’s testimony was crucial to the Government’s
case so this factor weighs heavily in Appellant’s favor.
The second factor of cumulativeness weighs in Appellant’s favor but only
marginally. The questioning on the removal of JC’s clothes would have been
cumulative. During cross-examination, JC gave answers, albeit nonresponsive
ones, and explained how her clothing was removed. JC testified that Appellant
“did take off [her] clothes” and she “didn’t help him remove [her] clothes.” This
is essentially the same cross-examination that was excluded. However, other
portions, like the straddling, were not explicitly addressed in the other evi-
dence which leads us to conclude that the second factor weighs marginally in
Appellant’s favor.
Assessing the third factor, we see evidence that corroborated JC and evi-
dence that contradicted her as described in our legal and factual sufficiency
analysis. We see the material points of JC’s testimony about her memory as
34 We do not assess whether the military judge’s ruling was an abuse of discretion
under the second exception. Mil. R. Evid. 412(b)(1)(B).
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United States v. Horne, No. ACM 39717
threefold: (1) what JC did with Appellant after leaving the hotel’s front patio,
but before entering her room, such as visiting LC’s room twice; (2) what oc-
curred inside her room when Appellant was present; and (3) what JC told oth-
ers occurred inside her room. On the first point, JC had no memory of visiting
LC’s room while LC recalled these visits and testified how JC appeared during
them. On the second point, JC’s testimony regarding her demonstrated lack of
consent was not contradicted by Appellant because he did not testify on the
merits. However, JC’s memory was impeached on more minor considerations,
such as how a beer bottle ended up in her bathroom. Third, JC’s statements to
others about what occurred in her room contradicted her testimony in certain
places. For example, Dr. N believed that JC said “Yes” when asked during the
SAFE whether JC remembered “the whole event” yet JC testified to memory
gaps after Appellant started trying to kiss her. Additionally, Ms. MO testified
as a defense expert that she would have expected the sexual assault forensic
exam to document marks on JC’s arms, wrists, and abrasions, redness and po-
tential injuries in JC’s genital area based on JC’s descriptions of the assault.
On the whole, this third factor weighs moderately in Appellant’s favor even
without Appellant’s testimony because of the contradictions with JC’s memory
and her statements to others.
The fourth factor—the extent of the cross-examination—weighs heavily in
favor of the Government. Civilian trial defense counsel asked three sets of
cross-examinations questions of JC, totaling about 50 pages in the record of
trial. JC’s memory gaps before, during, and after the event were a prominent
feature of the cross-examination.
Assessing the fifth factor, we see strengths and weaknesses in the Govern-
ment’s case. As far as strengths, JC’s report of being raped was immediately
made to SrA CB and there was evidence that Appellant had prior sexual inter-
est in JC but that JC displayed no sexual interest in Appellant. Further, the
evidence of JC’s intoxication offered a reasonable explanation for the gaps in
her memory both before, during, and after the event. JC’s immediate emotional
reaction, before Appellant even left the room, was powerful evidence. The De-
fense recognized the importance of JC’s reaction and attempted to deflect it
with evidence that JC thought she was miscarrying. This was a reasonable
approach by the Defense and showed weaknesses in the Government’s case.
This is particularly so as witnesses testified that JC told them she was or might
be pregnant or was at least trying, and JC disagreed that she made these state-
ments or did not recall making them. Even so, JC testified that she told Appel-
lant she might be pregnant during the assault. The evidence found on the bed-
sheets was described at different times as “blood,” “spotting,” and “a mixture
of blood and semen.” This provided some support for the Defense’s theory that
JC believed she was miscarrying. However, other evidence showed demonstra-
53
United States v. Horne, No. ACM 39717
bly that JC attributed the evidence on the bedsheets to nonconsensual pene-
tration with no mention of a belief regarding miscarrying. There was also con-
flict regarding whether JC knew she was pregnant, suspected she was preg-
nant, or only learned she was pregnant once she received the results of her
pregnancy test. While we found the evidence supporting the conviction both
legally and factually sufficient, it is an acknowledged close call and we do not
characterize the Government’s case as “strong” and our dissenting colleague
was not personally convinced of Appellant’s guilt. We weigh this factor in Ap-
pellant’s favor.
The five factors in Ellerbrock are not exclusive. In this case, we also weigh
four additional matters: (1) whether JC’s cross-examination provides insight
into how she would have answered questions if allowed; (2) whether JC’s direct
examination provides insight into how she would have answered the questions
if allowed; (3) whether JC’s memory gaps immediately prior to the assault were
thoroughly covered during cross-examination; and (4) whether the demeanor
JC displayed during motion practice questioning on the excluded matters was
shown during her cross-examination at trial. We find each of these four mat-
ters weighs in favor of the Government.
First, JC’s cross-examination during trial provides insight into how JC
would have answered questions about assisting in the removal of Appellant’s
clothing, whether she kissed Appellant back at any point, and whether she
straddled Appellant. Regarding removal of Appellant’s clothing, JC’s cross-ex-
amination included that she did not see Appellant take off his clothing and
that she “blacked out” between when he was removing her clothes and when
penetration occurred. Given this portion of JC’s testimony, we see no reasona-
ble possibility that JC would have testified that she recalled helping Appellant
remove his clothes. Regarding kissing Appellant back, JC’s cross-examination
included that Appellant tried to kiss her while he was removing her clothes
and he made contact once with her mouth. She denied opening her mouth and
described that Appellant was forcing his mouth onto hers. We see no reasona-
ble possibility that JC would have testified that she recalled kissing Appellant
back when he kissed her. Consistent with the military judge’s ruling, JC did
not testify whether she straddled Appellant or not. However, the cross-exami-
nation never demonstrated a point in time where JC recalled being in a phys-
ical position where she could have straddled Appellant. This leads us to con-
clude that JC would have denied that she straddled Appellant or denied re-
calling it.
Second, the direct examination of JC in front of the court members also
provides insight into how JC would have answered the questions regarding
whether she recalled moaning when Appellant performed oral sex on her. JC
testified during direct examination that she was trying to figure out what was
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United States v. Horne, No. ACM 39717
happening during the oral sex. We see no reasonable possibility that JC would
have recalled pleasurable moaning around the same time when she was trying
to figure out what was happening.
Third, JC’s memory gaps immediately prior to the offense were thoroughly
covered during cross-examination. JC indicated at various points that she
“blacked out” and “passed out” which showed obvious gaps in her memory. This
permitted the defense’s closing argument to include that JC had “convenient
memory loss” and “convenient selection of her memory” even without the cross-
examination at issue.
Fourth, JC’s demeanor during cross-examination at trial was very similar
to the manner in which she testified during motion practice, at least after the
military judge interceded and directed JC to answer the questions she was
asked. Both times JC testified—during the motion and during the Govern-
ment’s case-in-chief—her answers demonstrate some level of annoyance. JC
also had a tendency during both testimonies to explain her answers when the
cross-examination questions did not call for an explanation. While the topics
may have been different, what we can tell from the record on appeal is that
JC’s cross-examination at trial was similar in terms of her level of annoyance
and volunteering of explanations. While the military judge did not need to di-
rect JC to answer questions during her trial testimony, we will not speculate
that he would have needed to do so if a few additional questions had been al-
lowed. It appears to us that JC only needed to be told once to directly answer
the questions and she did so thereafter. We are satisfied that the court mem-
bers would not have received a different impression of JC if the Defense had
been allowed to ask the additional cross-examination questions.
Considering all of the circumstances of this case, reasonable court members
would not have received a significantly different impression of JC’s recall of
consensual sexual behaviors, memory gaps, or credibility if the line of ques-
tioning had been allowed. See United States v. Collier, 67 M.J. 347, 352
(C.A.A.F. 2009) (quoting Van Arsdall, 475 U.S. at 680). We see no reasonable
possibility that JC would have testified that she consented to any of the behav-
iors, which means she would have testified that she did not recall them or they
did not happen. If JC did not recall them, the evidence could not be considered
as substantive evidence without Appellant’s trial testimony, just as was con-
ceded by the Defense during motion practice. If JC testified the events did not
happen, this would not have helped Appellant substantively and we do not be-
lieve attempts to impeach JC with her motion testimony would have given the
members a different impression of her credibility. Under either scenario, the
members’ impression of the quality of JC’s memory and whether she was a
credible witness would not have changed with the additional cross-examina-
tion or possible further impeachment questioning on the quality of her
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United States v. Horne, No. ACM 39717
memory. There was abundant evidence of JC’s memory gaps, even close-in-
time to the penetration, and the Defense could and did argue its selective
memory theory. Similarly, we see little difference in JC’s credibility and man-
ner of testimony once the military judge interceded during cross-examination
on the motion. While the evidence in this case was not overwhelming to support
a conviction, we are convinced that the answers to the additional cross-exami-
nation, if allowed, would not have left the members with a significantly differ-
ent impression of JC’s recall of consensual sexual behaviors, memory gaps, and
credibility. Therefore, the limitations on JC’s cross-examination which we have
assumed were erroneous were harmless beyond a reasonable doubt.
F. Post-Trial and Appellate Delay
1. Additional Background
Appellant’s court-martial concluded on 7 December 2018. The convening
authority took action 194 days later on 19 June 2019. Appellant’s case was
docketed with our court on 1 July 2019. Our court did not render a decision
within 18 months of the docketing date.
2. Law
In United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006), our superior
court established a presumption of facially unreasonable post-trial delay when
the convening authority does not take action within 120 days of trial. Moreno
also established a presumption of facially unreasonable delay when a Court of
Criminal Appeals does not render a decision within 18 months of docketing. 63
M.J. at 142.
When there are facially unreasonable delays in post-trial and appellate pro-
cessing, we examine the four factors set forth in Barker v. Wingo, 407 U.S. 514,
530 (1972): (1) the length of the delay; (2) the reasons for the delay; (3) the
appellant’s assertion of his right to a timely review; and (4) prejudice to the
appellant. Moreno, 63 M.J. at 135 (citations omitted). “No single factor is re-
quired for finding a due process violation and the absence of a given factor will
not prevent such a finding.” Id. at 136 (citing Barker, 407 U.S. at 533).
However, where an appellant has not shown prejudice from the delay, there
is no due process violation unless the delay is so egregious as to “adversely
affect the public’s perception of the fairness and integrity of the military justice
system.” United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006). In Moreno,
the CAAF identified three types of cognizable prejudice for purposes of an Ap-
pellant’s due process right to timely post-trial review: (1) oppressive incarcer-
ation; (2) anxiety and concern; and (3) impairment of the appellant’s ability to
present a defense at a rehearing. 63 M.J. at 138–39 (citations omitted).
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United States v. Horne, No. ACM 39717
Under Article 66(c), UCMJ, 10 U.S.C. § 866(c), we have the authority to
consider whether relief for excessive post-trial or appellate delay is appropriate
even in the absence of a due process violation. See United States v. Tardif, 57
M.J. 219, 225 (C.A.A.F. 2002). We consider the factors enumerated in United
States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264(C.A.A.F. 2016).
3. Analysis
Regarding post-trial delay between conviction and convening authority ac-
tion, there is a facially unreasonable delay. The convening authority exceeded
the 120-day standard by 74 days. The length of the delay weighs in favor of
Appellant.
The reasons for the delay are largely attributed to the time it took to tran-
scribe, review, and authenticate the record of trial. This is a 14-volume record
with 2,046 pages of transcript. The parties completed their review of the tran-
script by the end of March 2019, and the military judge authenticated the rec-
ord on 3 May 2019. On 31 May 2019, the staff judge advocate’s recommenda-
tion was signed. The Defense submitted clemency on 14 June 2019. The adden-
dum to the staff judge advocate’s recommendation was signed on 19 June 2019,
the same day the convening authority took action. The reasons for the delay
weigh only slightly in Appellant’s favor.
Appellant made a demand for speedy post-trial processing in his clemency
submission on day 188. This factor weighs slightly in Appellant’s favor. We
note that the Government completed post-trial processing six days after this
demand and docketed the record of trial with our court well within 30 days of
the convening authority’s action.
Regarding prejudice from post-trial delay, Appellant received no confine-
ment so there is no oppressive incarceration. See Moreno, 63 M.J. at 139. Ap-
pellant did not identify specific anxiety and concern, except to state in his clem-
ency submission that he was having difficulty obtaining a national security job
due to his mandatory dishonorable discharge. Id. We find no particularized
anxiety or concern that is different from others awaiting convening authority
action. Finally, as Appellant’s substantive appeal fails, his ability to present a
defense at a rehearing is not impaired. Id. at 140. Consequently, Appellant has
not shown prejudice, and there is no due process violation as the delay is not
so egregious as to “adversely affect the public’s perception of the fairness and
integrity of the military justice system.” See Toohey, 63 M.J. at 362.
Considering all of the factors together in our review of this case, we do not
find a violation of Appellant’s due process right to timely post-trial processing.
We also find no Article 66(c), UCMJ, relief is appropriate for post-trial de-
lay. See Tardif, 57 M.J. at 224. We considered the factors in Gay, 74 M.J. at
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United States v. Horne, No. ACM 39717
744, and note that we can see good faith efforts to conduct post-trial processing
in a timely manner in a fully contested case with a lengthy transcript and many
motions and rulings. The delay does not involve substantial harm to Appellant,
prejudice to the interests of justice or discipline, or an erosion of our ability to
conduct appellate review. We see no reason to reduce an otherwise appropriate
sentence imposed by the court members and approved by the convening au-
thority.
Turning to appellate delay, Appellant requested eight enlargements of
time to file his brief, all of which we granted over the Government’s opposition.
The assignment of error was filed on 13 May 2020. The Government answered
on 29 June 2020. We granted Appellant an enlargement of time to file a reply
brief which was submitted on 20 July 2020. Appellant has not requested
speedy appellate processing.
We apply the same legal principles to appellate delay as in post-trial de-
lay. The delay in rendering this decision after 1 January 2021 is presumptively
unreasonable. The reason for the appellate delay is twofold. First, Appellant
needed additional time to submit his briefs. Second, this appeal involved a
large record of trial, lengthy filings by the parties, and numerous issues which
required careful consideration by our court. We find no oppressive incarcera-
tion, particularized anxiety or concern, or impairment of the Defense at a re-
hearing. Appellant has not claimed prejudice, and we find none. Additionally,
we do not find the delay so egregious as to adversely affect the perceived fair-
ness and integrity of the military justice system.
Recognizing our authority under Article 66(c), UCMJ, we have also consid-
ered whether relief for appellate delay is appropriate even in the absence of a
due process violation. See Tardif, 57 M.J. at 225. After considering the factors
enumerated in Gay, 74 M.J. at 744, we conclude it is not.
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and sentence are AFFIRMED.
J. JOHNSON, Chief Judge (dissenting).
Because I am not convinced the evidence proves Appellant’s guilt beyond a
reasonable doubt, I must respectfully dissent. See United States v. Turner, 25
M.J. 324, 325 (C.M.A. 1987).
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United States v. Horne, No. ACM 39717
I agree with my colleagues in the majority that the evidence meets the “very
low threshold” for legal sufficiency to sustain a conviction. United States v.
King, 78 M.J. 218, 221 (C.A.A.F. 2019). In particular, I agree there was abun-
dant evidence that, at the time and place alleged, Appellant penetrated JC’s
vulva with his penis. Moreover, JC’s testimony regarding the alleged assault,
if accurate, plainly supports finding that JC did not consent and that Appellant
could not reasonably have believed she consented. However, the Government’s
case relied very heavily on JC’s testimony, and in my view several factors sig-
nificantly undermined the reliability of that testimony, leaving reasonable
doubt as to Appellant’s guilt. I address several of these factors below.
A. Impairment and Memory Lapses
Witness testimony and scientific evidence both indicate JC was signifi-
cantly intoxicated on the night of the alleged sexual assault. Moreover, accord-
ing to JC’s own testimony she had significant lapses in memory both before
and during portions of the alleged assault. Although not fatal, both her impair-
ment and her admitted memory lapses in themselves have some effect on her
potential reliability as a witness before we reach additional considerations
such as contradictions, inconsistencies, and motives.
More specifically with regard to memory, it is notable that JC testified she
remembered being alone in her room, preparing to go to sleep, after she pro-
fessed to have an extended gap in her memory after ordering beers for the oth-
ers on the patio. JC testified that she did not remember telling LC in the ele-
vator that she was going to sleep in LC’s room. She did not remember going to
LC’s room twice with Appellant to ask for her access badge. She did not re-
member how the beer bottle came to be next to her bathroom sink. Yet, at a
time when Dr. GJ estimated that her blood alcohol content was still very high,
she testified that she had a clear memory of being alone in her room preparing
for bed before Appellant knocked on the door. There is no apparent explanation
for this abrupt resumption of lucid memory, and other factors raise questions
as to whether her memory was genuine.
B. Inconsistencies and Contradictions
Notably, shortly after the alleged assault, JC provided a somewhat differ-
ent version of events. JC told Dr. K that Appellant “followed” her to her hotel
room, and apparently did not mention being interrupted as she prepared for
bed. JC told SA LJ a third, apparently inconsistent version, that she was “al-
ready asleep” when Appellant knocked on her door. Although it is possible the
testimony of Dr. K and SA LJ did not accurately reflect what JC said at the
time, I find these inconsistencies cast some doubt on the reliability of JC’s tes-
timony.
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United States v. Horne, No. ACM 39717
Another significant contradiction involves JC’s phone. LC testified that Ap-
pellant had picked up JC’s phone at one point during the evening when JC left
it on a table at the patio when she went to the restroom. This testimony is
supported by the message Appellant sent at 0338, after the alleged assault,
asking for someone to pick up JC’s phone at Appellant’s room. LC testified SrA
CB went and retrieved JC’s phone, also after the alleged assault. However, JC
specifically testified that before Appellant knocked on her door, she was setting
the alarm on her phone. This would be impossible if JC’s phone was not re-
turned until after the alleged assault—unless JC was referring to a different
phone, of which there is no evidence. This inconsistency in JC’s testimony sug-
gests she may have filled in information that she did not actually remember,
but which she believed in line with her assumptions as to how she would or
should have acted.
I also find significant JC’s resistance to acknowledging her belief that she
was pregnant prior to traveling to Germany. At trial, JC denied that she had
told SSgt CM prior to the trip that she thought she was pregnant. However,
SSgt CM testified that JC in fact did so. JC also testified that she did not “re-
call” telling Dr. K that she believed she was pregnant. This assertion is notable
in light of her contradicted claim that she did not tell SSgt CM the same thing,
as well as testimony of Mr. HE that JC stated in the ambulance that she was
pregnant. One apparent explanation for JC’s apparent resistance to acknowl-
edging her belief that she was pregnant might be reluctance to acknowledge
behavior that her spouse or others might view as irresponsible, such as exces-
sive consumption of alcohol while pregnant. In a similar vein, there was a no-
ticeable trend in JC’s testimony to not remember events that others testified
to which portrayed her as acting impulsively or in an otherwise negative light,
such as harassing LC or being “very engaged” with the male hotel guests.
Moreover, in addition to the contradiction regarding whether JC was fol-
lowed, asleep, or preparing for bed noted above, there were other noticeable
differences in JC’s pretrial accounts of the alleged assault and her testimony.
JC did not report to Dr. K any lapses in memory, and she affirmatively told Dr.
N that she remembered the “whole event,” in marked contrast to the two points
at which JC testified she lost consciousness or memory during the alleged as-
sault. Furthermore, Dr. K recorded in her report that JC said she confronted
Appellant immediately after the assault, and Appellant responded to the effect
that he did not do anything JC did not want to do. This apparently exculpatory
statement by Appellant was absent from JC’s testimony at trial.
C. Motive
The fact that JC was married to someone else provides a clear motive for
JC to deny or disbelieve that she either consented to sexual activity with Ap-
pellant, or behaved in a way that would have caused Appellant to reasonably
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United States v. Horne, No. ACM 39717
believe she consented. However, evidence in this case suggests JC had a par-
ticularly strong incentive to deny activity that her spouse TSgt BC would dis-
approve of, beyond the typical ties of a marital relationship. JC’s co-worker and
friend SSgt CM testified that she had described how TSgt BC’s ex-wife’s infi-
delity affected TSgt BC, and how sensitive JC was to it. In addition, there was
evidence that JC and TSgt BC were attempting to have a child after the diffi-
cult experience of a recent miscarriage. Furthermore, SSgt CM testified that
JC had previously asked him on another trip not to reveal her alcohol consump-
tion to TSgt BC; similarly, on the night of the alleged assault, JC told LC it
was “better this way” when JC sent a misleading text to TSgt BC that she was
going to sleep rather than staying up drinking and socializing. Taken together,
the evidence suggests JC may have had a particularly strong motive to reject
a scenario in which excessive alcohol consumption led her into sexual activity
with another man which had possibly harmed her pregnancy. This impression
is reinforced by the concern JC expressed shortly after the assault that her
husband would “think that she’s a whore,” and her “very peculiar” statement
to Mr. HE as soon as he arrived that she “didn’t want to do it” because she was
“married.”
D. Absence of Corroboration
The memory issues, inconsistencies, contradictions, and questions of mo-
tive in JC’s testimony might be overcome if there was strong corroborating ev-
idence of Appellant’s guilt. However, with respect to the absence of consent or
reasonable mistake of fact as to consent, the record does not significantly cor-
roborate JC’s account. For example, there is insufficient basis to conclude JC
was too intoxicated or otherwise incapable of consenting, and therefore did not
consent. Although JC was evidently highly intoxicated at the time of the al-
leged assault, Dr. GJ testified that individuals with her estimated blood alco-
hol content would be capable of activities such as engaging in sexual inter-
course. Moreover, JC’s own account of the alleged assault belies a conclusion
that she was incapable of consenting. According to her testimony, JC was
aware of her surroundings, able to dress herself and answer her door, and ver-
bally communicated her lack of consent to Appellant.
Moreover, the Government presented no incriminating statements by Ap-
pellant or other compelling evidence of consciousness of guilt on his part, other
than JC’s own testimony. The fact that Appellant appeared “frazzled” and
“scared” when he went to SrA CB’s room at JC’s request was not necessarily
indicative of guilt; it was equally consistent with seeking assistance for JC af-
ter she had a strong negative emotional reaction following a sexual act that
was consensual, or reasonably perceived by Appellant to be consensual. JC’s
earlier abrupt mood swings in the hotel restroom, observed by both LC and
SrA CB, make such a scenario more plausible.
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Furthermore, Ms. MO provided expert testimony that JC’s full-body exam-
ination disclosed none of the marks or injuries that she would have expected
and looked for given JC’s description of the assault. I acknowledge the presence
or absence of injuries, genital or otherwise, is not in itself proof that a sexual
act was consensual or nonconsensual. However, that is not the relevant point.
The relevant point is that JC gave particular testimony regarding a purported
violent encounter that, in Ms. MO’s expert opinion, would likely leave marks
or injuries in specific areas. The absence of such evidence is not determinative
in itself, but coupled with the other factors in this case it further tips the bal-
ance toward reasonable doubt.
E. Conclusion
I acknowledge that not every consideration weighs in favor of finding Ap-
pellant’s conviction factually inconsistent. I recognize that the court members
were present in the courtroom and observed JC and the other witnesses testify.
I further recognize that the evidence need not be “free from conflict” in order
to be convincing beyond a reasonable doubt. United States v. Wheeler, 76 M.J.
564, 568 (A.F. Ct. Crim. App. 2017) (quoting 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 also acknowledge
various evidentiary points the Government made at trial and on appeal, such
as the absence of any prior romantic or sexual relationship between JC and
Appellant.
Yet, ultimately the Government’s case depended on the reliability of JC’s
testimony. It is not enough that JC’s testimony might be explainable and ac-
curate, or even likely; it must be convincing beyond any reasonable doubt. My
esteemed colleagues in the majority correctly note that the court members
could have focused on JC’s testimony regarding the essential elements of the
offense and found it convincing. But in order for us to affirm, we ourselves must
find proof beyond a reasonable doubt. My colleagues do so, but I cannot. I need
not and do not conclude that JC’s testimony was given falsely or in bad faith.
However, for the reasons stated above, I am simply not convinced of its relia-
bility beyond a reasonable doubt, and therefore I would find Appellant’s con-
viction factually insufficient.
FOR THE COURT
NATALIA A. ESCOBAR
Deputy Clerk of the Court
62