United States v. Salamanca ( 2022 )

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM S32695
________________________
UNITED STATES
Appellee
v.
Lucio SALAMANCA
Staff Sergeant (E-5), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 4 November 2022
________________________
Military Judge: Brett A. Landry.
Sentence: Sentence adjudged on 4 March 2021 by SpCM convened at Hill
Air Force Base, Utah. Sentence entered by military judge on 29 March
2021: Bad-conduct discharge, confinement for 70 days, reduction to E-1,
and a reprimand.
For Appellant: Major David L. Bosner, USAF; Major Spencer R. Nelson,
USAF.
For Appellee: Lieutenant Colonel Matthew J. Neil, USAF; Major Brit-
tany M. Speirs, USAF; Mary Ellen Payne, Esquire.
Before KEY, ANNEXSTAD, and GRUEN, Appellate Military Judges.
Senior Judge KEY delivered the opinion of the court, in which Judge
ANNEXSTAD and Judge GRUEN joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
KEY, Senior Judge:
A special court-martial composed of officer and enlisted members convicted
Appellant, contrary to his pleas, of one specification of committing abusive sex-
ual contact upon another Airman, KB, in violation of Article 120, Uniform Code
United States v. Salamanca, No. ACM S32695
of Military Justice (UCMJ), 10 U.S.C. § 920.1 The military judge sentenced Ap-
pellant to a bad-conduct discharge, confinement for 70 days, reduction to the
grade of E-1, and a reprimand.
Appellant raises six issues on appeal: (1) whether his conviction is legally
and factually sufficient; (2) whether the military judge erred in qualifying a
witness as an expert in clinical psychiatry; (3) whether the military judge erred
by excluding evidence that KB had made positive comments in the past about
Appellant’s appearance; (4) whether the military judge erred by excluding ev-
idence regarding KB showing Appellant a picture of a tattoo of hers; (5)
whether Appellant’s sentence is inappropriately severe; and (6) whether, in
light of Ramos v. Louisiana, ___ U.S. ___, 140 S. Ct. 1390 (2020), the military
judge was required to instruct the court members that a guilty verdict must be
unanimous.2 We have carefully considered issue (6) and find it does not require
discussion or warrant relief. See United States v. Matias, 25 M.J. 356, 361
(C.M.A. 1987). We find no error materially prejudicial to Appellant’s substan-
tial rights, and we affirm the findings and sentence.
I. BACKGROUND
KB was a co-worker of Appellant’s in a medical logistics unit at Hill Air
Force Base (AFB), Utah. At the time of Appellant’s offense, he was the non-
commissioned officer in charge of a warehouse in which KB performed some of
her duties. Appellant was senior in grade to KB and had previously been KB’s
supervisor, but he was no longer KB’s supervisor at the time relevant to his
charged offense.
In the morning of 14 August 2020, Appellant and KB attended a retirement
ceremony for another co-worker, Master Sergeant (MSgt) SD, at the base clinic.
Shortly after noon, MSgt SD hosted a party at a pavilion elsewhere on the base
to celebrate his retirement. Food and alcohol were available at the party; as
MSgt SD’s wife described the event, “People ate. A couple people drank. No big
deal.” KB testified that before the party, she “told everybody [she] was plan-
ning on getting drunk” at the party and that she “was going to sleep in [her]
car . . . to get rid of it or just wait until [she was] not intoxicated anymore.” One
of KB’s co-workers told KB she could stay in her nearby dormitory room to
sober up before driving home to her off-base apartment rather than waiting in
her car, but KB declined the offer. KB arrived at the party when it began, and
1 All references to the UCMJ, the Military Rules of Evidence, and the Rules for Courts-
Martial are to the Manual for Courts-Martial, United States (2019 ed.).
2 Appellant personally raises issue (6) pursuant to United States v. Grostefon, 12 M.J.
431, 435 (C.M.A. 1982).
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Appellant showed up about an hour later. According to KB, MSgt SD told her
that Appellant wanted to “smash or crush” KB, which KB understood to mean
Appellant was interested in her sexually, but that she thought “it was just,
like, a stupid joke.” After another hour passed, the party wound down as nearly
all the attendees had left, with only Appellant and KB remaining behind along
with MSgt SD and his wife. Both Appellant and KB consumed alcohol at the
party, but neither appeared drunk to either MSgt SD or his wife.
MSgt SD, his wife, Appellant, and KB sat at a picnic table at the pavilion
and talked for approximately another hour. MSgt SD did not perceive Appel-
lant and KB to be flirting with each other, while MSgt SD’s wife testified she
thought they were being flirtatious, agreeing with trial defense counsel’s char-
acterization of them laughing, “talking in low tones,” and seeming “giddy.”
After cleaning up the pavilion, MSgt SD and his wife said they were leaving
to go back to MSgt SD’s office to pack his things. They invited Appellant and
KB to accompany them, but Appellant and KB did not. Instead, Appellant
stayed behind in the parking lot with KB in her car.
Once the two were in the car, KB drove it to the other side of the parking
lot so that the car was in a shaded area. At Appellant’s court-martial, KB tes-
tified the two talked for some time until Appellant asked to see KB’s phone.
She gave him the phone and asked for it back “a few moments later.” Once she
had her phone again, she noticed there were “a lot of apps open,” including her
photo album—this struck KB as odd, as she typically closed the apps on her
phone when she was finished using them, but she thought perhaps she had
forgotten to do so on account of the alcohol she had consumed. At some later
point, she gave her phone back to Appellant who asked if she had “naughty
photos” on it. About this time, KB saw that Appellant was looking at her “hid-
den” photo album which contained explicit photos of KB. This led Appellant to
ask KB about how she engaged in certain sexual activity—making a reference
to something he apparently saw in the pictures. KB told Appellant that she
thought of her body as a temple and she “only want[ed] certain people seeing
it, touching it[,] or being in it.” Appellant, in turn, began commenting on her
body and asking if he could touch her legs. KB testified she told Appellant “the
most he can do is poke it, because it’s just skin and bones; it’s nothing more.”
Appellant poked her leg and proceeded to start grabbing her thigh and then
asked if he could “touch [her] butt,” to which KB replied, “No. It’s just fat.”
KB testified that Appellant then put his hand between her legs and started
touching her vagina, outside of her clothes. She said Appellant asked her “if
[she] liked it,” and she answered “no;” KB followed her response by telling Ap-
pellant that was the case because she had been raped. Appellant next asked
KB what her breasts looked like and whether he could see them and touch
them. KB said she told him “no,” but Appellant tried to reach under KB’s shirt,
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leading her to slap her chest so that he would stop. Appellant pulled his hand
back and KB told Appellant to “ask his wife” or “one of his exes,” because she
did not want to show him her breasts.
KB said Appellant continued to talk about sexual topics, to include asking
KB whether she liked having her hair pulled. After he asked this question, he
reached over and pulled the hair at the base of her neck. He then asked her if
she had been bitten before, at which point Appellant leaned over and bit KB
on her neck and asked if she liked it. KB said “no.” Appellant then started
asking KB about vibrating underwear, which KB had apparently once owned,
and asking her about “the placement of it, how big it was.”3 KB testified that
while Appellant was asking about “the placement,” he started touching her
vagina again, “rubbing it, and longer than the first time,” asking, “Is it here
where it vibrates?” While this was going on, Appellant had KB’s phone, and
KB said she was trying to keep her eyes covered up so that Appellant could not
utilize her phone’s facial-recognition unlocking feature. KB also testified that
when Appellant touched her vagina this second time, she “was scared,” “didn’t
know what to do,” and “just couldn’t move.”
Notably, KB was never asked if she consented to Appellant touching her
vagina, nor did she directly testify that she had not consented to Appellant
touching her there. KB did testify, however, that at some point after Appellant
touched her leg, but before he touched her vagina for the second time, she left
the car to go to a nearby restroom. While in the restroom, she sent a message
to Staff Sergeant (SSgt) GA, who was stationed in Korea and with whom KB
was in an “exclusive” relationship.4 KB said she told SSgt GA “something hap-
pened,” and SSgt GA replied, “What?” At that point, Appellant called KB, lead-
ing KB to wonder if Appellant “heard [her] writing somebody.”5 KB then wrote
SSgt GA back, “Nothing happened. You know how I get. I talk a lot and I get
distracted.”
Eventually, KB told Appellant she needed to go home and walk her dogs.
Before Appellant got out of KB’s car, he asked if they “were going to still be on
for moving the couch the next morning.” Once KB was driving off the base, she
called SSgt GA and told him that she had lied and something had happened.
She explained what had transpired and eventually disclosed that Appellant
was the perpetrator. KB had been reluctant to identify Appellant, since he and
3 We presume this is a reference to the placement of the vibrating mechanism.
4 Both KB’s and SSgt GA’s testimony was vague about the nature of the relationship.
KB testified that they had lived together and “were, like, exclusive, but there was [sic]
no labels on it.”
5 KB explained that her phone was still wirelessly connected to her car at the time.
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SSgt GA were good friends, and she only identified him after SSgt GA pleaded
at length with her to do so. KB did not want to report the incident and asked
SSgt GA not to, but SSgt GA insisted on informing a senior noncommissioned
officer, letting KB know afterward that he had done so. SSgt GA was called as
a witness and largely corroborated KB’s testimony about their phone call, to
include specifics about what KB said had happened between her and Appellant
in her car. During his cross-examination, the Defense was able to establish
that KB had omitted certain details in the conversation, such as that she had
given Appellant permission to poke her leg.
The next day, KB was interviewed by Air Force Office of Special Investiga-
tions (AFOSI) agents. During that interview, Appellant sent KB a message via
an online social media platform. Screenshots of the ensuing conversation were
admitted into evidence and show, inter alia, KB telling Appellant she was “un-
comfortable about the wh[ ] situation.”6 Appellant replied:
I’m sorry [neutral face emoji] I want to apologize for ma[ ] you
feel that way
Definitely not a good idea to drink like [ ] again
That definitely was not my intention at [ ]
KB asked Appellant if he remembered what he had done, leading Appellant
to respond, “I wanted to talk to you about it as well [ ] apologize.” KB again
asked if Appellant remembered, and he wrote back:
Most. Definitely didn’t mean to make th[ ] weird. I definitely
should’ve just left. I a[ ] sorry for what happened and I promise
[ ] won’t happen again and I definitely do[ ] want things to
change between us. You [ ] one of the few I actually like at the
shop and [ ] on
Yesterday was definitely all my fault. I’m sorry for making it
uncomfortable [frowning face emoji]
KB wrote: “Do you remember touching me? Like [ ] chest/vagina/leg+thigh
area,” to which Appellant replied, “Omg [embarrassed face emoji] [KB]!” fol-
lowed by 19 exclamation marks, and “I am super ashamed now and embar-
rassed!!!!!!” Appellant said he would like to talk to KB about what had hap-
pened, but she said she was uncomfortable doing so. Appellant wrote, “I am
extremely embarrassed and ashamed,” “My heart sank reading that message
and I can [ ] how disgusted I feel with myself right now,” and “It might not
6 The screenshots were taken in such a way as to obscure characters near the right-
hand edge of the screen. The brackets in the quotations taken from the screenshots
reflect the non-visible characters.
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mean much but [ ] sincerely sorry.” According to the timestamps in the screen-
shots, this entire exchange spanned about 20 minutes.
The Government called one of KB’s co-workers to testify that KB told her—
a few days after the episode near the pavilion—that “something had hap-
pened.” The co-worker also said that in late August 2020, about two weeks
after the initial conversation, KB went into more detail and that KB was “very
emotional” and crying as she was doing so.
During KB’s cross-examination, the Defense elicited the fact that while Ap-
pellant was in the car with her, KB left the car not once to go to the restroom,
but four separate times. She said she only took her phone with her one of those
times. She also acknowledged that her car was parked such that it was facing
the gym and near both a camping area and the base gate which was manned
by security personnel. She agreed that there were other people in the park
directly in front of where the car was parked. KB also conceded that—in both
her interview with the AFOSI agents and her pretrial interview with trial de-
fense counsel—she never told interviewers that she said “no” to Appellant’s
advances. The Defense also called an AFOSI special agent who testified that
in the AFOSI interview, KB only said Appellant touched her vaginal area once.
Several of Appellant’s and KB’s co-workers testified that the two had an
overtly friendly relationship. One co-worker described Appellant’s and KB’s
workplace interactions as “[p]layful or flirtatious” because they would laugh
and KB would touch Appellant, “[m]aybe just a little tap in the shoulder and
stuff like that.” In response to a member’s question, one co-worker agreed that
there was “a general feeling or impression in the work center” that Appellant
and KB “had sexual attraction towards each other.” Another co-worker testi-
fied that Appellant and KB would go to lunch with each other, although KB
testified they would never spend time together alone “[o]utside of work,” as
they would be “always with a group of people.” KB conceded she would partic-
ipate in unprofessional workplace conversations with Appellant and others
covering such topics as their sexual activities and drunken behavior as well as
calling each other derogatory and sexually explicit names. KB testified that
Appellant was “a really good friend to [her],” that she “did trust him a lot,” and
that she would call him to talk whenever “something bad happened.”
One of KB’s co-workers testified that it was well known in KB’s unit that
KB wanted to leave Hill AFB and be stationed somewhere else. During her
testimony, KB agreed with this sentiment, saying she was ready to be sent
“[a]nywhere.” In fact, prior to the abusive sexual contact episode, KB had vol-
unteered for an assignment to Korea, among other places, and she received
orders less than a week after the sexual contact for a tour at Osan Air Base
(AB), Korea, to commence in the summer of 2021. SSgt GA, meanwhile, had an
assignment to leave Korea for Yokota AB, Japan, that same summer. After the
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investigation into KB’s allegations began, KB met with the base sexual assault
response coordinator (SARC) who told KB about the option of seeking an as-
signment to a base of her choice under the Air Force’s expedited transfer pro-
gram for sexual assault victims. KB decided to request a transfer to Yokota
AB, which caused her Osan AB orders to be canceled. KB was then told that
her Yokota AB request had been denied due to it being an overseas base, and
that she would need to choose a stateside base. KB resubmitted her request
with Washington state bases as her first and third choices and Yokota AB as
her second choice, because SSgt GA was the “only support system” she had.
She explained that she had no family or friends in Washington, but that SSgt
GA’s family lived there. Ultimately, KB was reassigned to a base in Washing-
ton about a month after the sexual contact. At Appellant’s court-martial, KB
testified that SSgt GA would be returning to Washington state in about two
weeks for his mid-tour leave, and KB intended to spend time with him while
he was there.7
II. DISCUSSION
A. Legal and Factual Sufficiency
On appeal, Appellant advances a variety of reasons why we should conclude
his conviction is neither legally nor factually sufficient. He argues KB did not
say “no” or “stop” to his advances; did not push his hand away; did not report
the encounter herself; had “strong” motives to fabricate; and “changed her
story” while testifying. We conclude Appellant’s conviction is both legally and
factually sufficient.
1. Additional Background
Appellant was charged with a single instance of touching KB’s vulva with-
out her consent. KB, however, testified Appellant touched her vagina two sep-
arate times while they were in her car—apparently contrary to what she had
told investigators and trial defense counsel.8 The military judge expressed con-
cern that legal and factual sufficiency review on appeal would be hampered by
a general finding of guilty, since it would not be clear whether Appellant was
convicted for the earlier touching or the later touching. The military judge de-
cided, over the objections of both parties, to instruct the members that the
charged touching was the second one.
7 By the time of Appellant’s court-martial, SSgt GA and KB were no longer in an ex-
clusive relationship.
8 Trial counsel’s opening statement simply said Appellant “plac[ed] his hand on [KB’s]
vagina,” and did not explicitly indicate the Government expected her to testify this
happened on more than one occasion.
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2. Law
a. Legal and Factual Sufficiency
We review issues of legal and factual sufficiency de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (citation omitted). We only af-
firm findings of guilty that are correct in law and fact and, “on the basis of the
entire record, should be approved.” Article 66(d)(1), UCMJ, 10 U.S.C.
§ 866(d)(1). Our assessment of legal and factual sufficiency is limited to the
evidence produced at trial. United States v. Dykes, 38 M.J. 270, 272 (C.M.A.
1993) (citations omitted).
“The test for legal sufficiency is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” United
States v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017) (quoting United States v.
Gutierrez, 73 M.J. 172, 175 (C.A.A.F. 2014)). “The term reasonable doubt, how-
ever, does not mean that the evidence must be free from conflict.” United States
v. Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (citing United States v.
Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986)), aff’d, 77 M.J. 289 (C.A.A.F. 2018).
“[I]n resolving questions of legal sufficiency, we are bound to draw every rea-
sonable 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, the “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)
(internal quotation marks and citation omitted). The “[G]overnment is free to
meet its burden of proof with circumstantial evidence.” Id. (citations omitted).
The test for factual sufficiency is “whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, [we are ourselves] 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
constitutes proof of each required element beyond a reasonable doubt.’”
Wheeler, 76 M.J. at 568 (alteration in original) (quoting Washington, 57 M.J.
at 399).
b. Abusive Sexual Contact
As charged in this case, the Government was required to prove beyond a
reasonable doubt that: (1) Appellant committed sexual contact on KB by touch-
ing her vulva, over her clothes, with his hand; (2) Appellant did so with the
intent to gratify his sexual desire; and (3) the touching occurred without KB’s
consent. See Manual for Courts-Martial, United States (2019 ed.) (MCM), pt.
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IV, ¶ 60.b.(4)(d). “Sexual contact” includes, inter alia, “touching . . . either di-
rectly or through the clothing, the vulva . . . of any person, with an intent to
. . . arouse or gratify the sexual desire of any person.” MCM, pt. IV,
¶ 60.a.(g)(2). “Consent” is defined as “a freely given agreement to the conduct
in issue by a competent person,” and “[a]n expression of lack of consent through
words or conduct means there is no consent.” MCM, pt. IV, ¶ 60.a.(g)(7)(A). “All
the surrounding circumstances are to be considered in determining whether a
person gave consent.” MCM, pt. IV, ¶ 60.a.(g)(7)(C).
The defense of mistake of fact is available to Appellant under the charge in
this case so long as the circumstances as he mistakenly believed them to be
would render his conduct non-criminal. Rule for Courts-Martial (R.C.M.)
916(j)(1). When a mistake pertains to an element requiring specific intent, that
mistake “need only have existed in the mind of [Appellant].” Id. If, however,
the mistake pertains to an element requiring only general intent, Appellant’s
mistake must not only exist in his mind, but it also “must have been reasonable
under all the circumstances.” Id. Once this defense is raised, the Government
must prove—beyond a reasonable doubt—the defense did not exist. R.C.M.
916(b)(1).
3. Analysis
Appellant’s arguments can be summed up as: KB was not credible and
therefore her testimony cannot be believed; even if one assumes KB’s testi-
mony was credible, the evidence indicates she consented to the conduct; and
even if KB did not actually consent, Appellant honestly and reasonably (but
mistakenly) believed she had.
Regarding KB’s credibility, Appellant argues KB had a motive to fabricate
the assault in order to preserve her relationship with SSgt GA. This claim is
fairly implausible, however, given the fact KB almost immediately reported
the encounter to SSgt GA as she was driving off the base. Had KB in fact been
trying to hide some sort of consensual sexual activity with Appellant, she could
have simply not said anything about the encounter to SSgt GA, who was living
on the opposite side of the world.
Appellant pivots from the theory of fidelity to SSgt GA to one which posits
that KB falsely claimed she had been assaulted in order to obtain an expedited
transfer to some other base, preferably one closer to SSgt GA. While KB’s de-
sire to be transferred elsewhere was uncontested, KB testified she was una-
ware of the expedited transfer program until she spoke to the SARC, which
was after the investigation into the assault allegation was underway. No evi-
dence to the contrary was presented. Moreover, by the time KB applied for an
expedited transfer, she already had orders to leave Hill AFB the following sum-
mer. Most problematic for Appellant’s theory is the fact KB did not actually
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want to report the assault to anyone, and she begged SSgt GA not to do so.
Both KB and SSgt GA testified regarding how reluctant KB was to disclose
Appellant’s identity to SSgt GA, much less report an assault to the authorities.
Trying to avoid reporting an assault seems fundamentally at odds with trying
to take advantage of a program for victims of sexual assault. Appellant does
not explain how we should reconcile these incompatible goals. The more plau-
sible scenario is the one KB testified to—that she only reluctantly facilitated
the reporting of the offense, and she later learned about the expedited transfer
option, which she decided to take advantage of.
Aside from arguing KB had a motive to falsely allege she was sexually as-
saulted, Appellant argues KB was simply not credible and her testimony
should not be believed. His bases for this are that: KB said on the stand that
Appellant had touched her vagina twice, while she told AFOSI agents it only
happened once; on the day of the offense, KB had been drinking, so it is possible
her ability to recall was impaired; she testified she told Appellant “no” when
he asked to touch her breasts and her buttocks, but she told AFOSI agents she
never said “no;” she testified that she had not spent time with Appellant alone,
although another witness said KB and Appellant would go to lunch together;
she did not remember several minor points (such as whether her car was
turned on at a particular point in time and whether MSgt SD and his wife
invited her to go to MSgt SD’s office to pack). Such matters may very well neg-
atively impact KB’s credibility, but a rational factfinder could also conclude KB
simply misremembered or did not recall certain peripheral facts. As to whether
Appellant touched KB’s vagina once or twice, a factfinder could conclude she
was trying to bolster her testimony by making the situation seem all the more
aggravated. But an equally plausible conclusion would be that KB inadvert-
ently omitted certain details during her interview with AFOSI the day after
the episode.9
As to the theory KB actually consented to the sexual contact, Appellant
points to the nature of his pre-existing relationship with KB in which they were
close friends who called each other sexually charged names and were perceived
by others to be flirting on occasion. KB testified that MSgt SD had suggested
to her at the party Appellant was interested in KB sexually, and KB neverthe-
less decided to stay after the party with Appellant and then go to her car with
him. Once there, she participated in conversations about sexual matters, al-
lowed Appellant to use her phone—knowing that she had sexually explicit pho-
tos stored on it—and gave Appellant permission to poke her leg. Appellant
highlights the fact that when he touched KB’s vagina, she did not tell him “no”
9 KB testified that she did not sleep well the night before the interview and that, at the
time of the interview, she was feeling “[p]retty horrible” and “[n]ot the greatest.”
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or “stop,” nor did she try and push his hand away. When KB did tell Appellant
he could not touch her buttocks, he did not. Similarly, when KB stopped Ap-
pellant from trying to touch her breasts, he did not try again, and when KB
said she needed to go home, Appellant did not protest. Appellant also points to
the fact that KB had ample opportunity to get away from the situation—such
as when she left to go to the restroom four times—or to alert others or other-
wise seek help. Instead, she repeatedly returned to the car and continued talk-
ing to Appellant.
Despite Appellant’s contentions, a rational factfinder could readily con-
clude that KB did not, in fact, consent to Appellant touching her vagina with
his hand. Although KB did not explicitly testify that she did not consent, the
surrounding circumstances tend to show that she did not; namely, the facts
that KB attempted to dissuade Appellant from touching her by telling Appel-
lant her leg was just “skin and bones” and her buttocks were “just fat,” telling
Appellant he could only poke her leg after he asked for permission to touch it,
denying Appellant permission to touch her buttocks, preventing Appellant
from reaching under her shirt, refusing to show Appellant her breasts, telling
Appellant she did not like it when he touched her vagina the first time due to
the fact she had been previously raped, as well as the fact she did not initiate
physical contact with Appellant at any point. The Government was permitted
to use circumstantial evidence to prove KB’s lack of consent, and a rational
factfinder could conclude from this evidence that she did not. See, e.g., United
States v. Williams, No. ACM 39746, 2021 CCA LEXIS 109, at *55 (A.F. Ct.
Crim. App. 12 Mar. 2021) (unpub. op.), aff’d on other grounds, 81 M.J. 450(C.A.A.F. 2021) (unpub. op.) (“Requesting members to draw inferences from
such circumstantial evidence is a common aspect of court-martial practice.”).
This same evidence rebuts the notion that Appellant might have both honestly
and reasonably believed KB was consenting to him touching her vagina.10 Alt-
hough evidence was presented that KB had the opportunity to remove herself
from Appellant’s presence, she was under no obligation to do so, and the fact
she does not operate to undercut the evidence indicating that she did not con-
sent.
Lastly, Appellant contends his text messages to KB the following day
should not be seen as corroborating KB’s claims. He characterizes the texts as
apologizing for making KB feel uncomfortable, not for assaulting her. Appel-
lant is correct that the text messages are somewhat ambiguous; however, a
rational finder of fact could view the messages as Appellant’s tacit, if not ex-
plicit, acknowledgment of his conduct. In those messages, KB initially stated
10 Appellant’s later apologies further undermine any claim that Appellant actually be-
lieved KB consented.
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she felt uncomfortable about the situation, leading Appellant to say that he
was sorry. KB’s next message asked Appellant if he remembered what he had
done, and Appellant replied that he “wanted to talk to [her] about it as well [ ]
apologize.” Appellant went on to say he felt “ashamed,” “embarrassed,” and
“disgusted”—feelings not ordinarily associated with merely making someone
else feel “uncomfortable.” We also note the lack of any indication in the text
messages that Appellant thought KB had consented to any of the conduct. Con-
sidering the texts in their entirety, one rational interpretation is they demon-
strate a concession by Appellant that he had not obtained KB’s consent before
touching her vagina. See United States v. McDonald, 78 M.J. 376, 381 (C.A.A.F.
2019) (“The burden is on the actor to obtain consent, rather than the victim to
manifest a lack of consent.”).
Based on the foregoing, the evidence presented at Appellant’s court-martial
is legally sufficient to support his conviction. Furthermore, after weighing the
evidence in the record of trial and making allowances for not having personally
observed the witnesses, we are ourselves convinced of Appellant’s guilt beyond
a reasonable doubt.
B. Expert Witness Testimony
Appellant contends the military judge abused his discretion by permitting
expert testimony regarding KB’s reaction to Appellant touching her. We disa-
gree.
1. Additional Background
KB testified that when Appellant touched her vagina the second time, she
“was scared,” “didn’t know what to do,” and “just couldn’t move.” It was at this
point in time that KB told Appellant she needed to go home and walk her dogs.
During KB’s re-direct examination, trial counsel asked her why she did not
honk her horn or go tell one of the people in the park in an effort to stop Appel-
lant’s advances. She answered, “I just freaked out. I froze.” Trial counsel did
not ask KB to identify at what point in the encounter she “froze.” In re-cross-
examination, KB acknowledged that she was not “frozen” when she was talking
to Appellant in the car.
The Government sought to call Captain (Capt) MP to testify as an expert
witness on the subjects of “counterintuitive behavior” and common reactions
to traumatic situations, specifically the so-called “fight, flight, or freeze” re-
sponses. Shortly before she was called, trial defense counsel alerted the mili-
tary judge they anticipated objecting to Capt MP’s testimony. This led the mil-
itary judge to have Capt MP provide initial testimony in a session convened
pursuant to Article 39(a), UCMJ, 10 U.S.C. § 839(a), outside the members’
presence. In that session, Capt MP said that she received a Doctor of Osteo-
12
United States v. Salamanca, No. ACM S32695
pathic Medicine degree after completing medical school, and then she per-
formed a four-year psychiatry residency, the last three years of which were “all
specialty mental health.”11 She subsequently received her board certification
in general psychiatry from the American Board of Psychiatry and Neurology.
Capt MP said she had seen “dozens” of patients, including victims of sexual
crimes. She said that the concept of fight, flight, or freeze was part of her edu-
cation and part of her practice, that she was aware of research on the concept,
that she had reviewed literature related to it in preparation for the trial, and
that the concept was widely accepted in the fields of psychiatry and psychology.
At the time of Appellant’s court-martial, Capt MP was the sole psychiatrist for
Hill AFB’s mental health clinic.
Capt MP, however, had never testified before, did not have a board certifi-
cation for forensic psychiatry, and did not have any specialized experience in
that field, although she had performed some “extra elective work” related to
the field during her residency. Capt MP acknowledged she had never been pub-
lished on victim “counterintuitive behaviors” or fight, flight, or freeze re-
sponses, nor had she lectured on the topic. Capt MP also said she had never
evaluated a victim or an accused “in a forensic context.”12
Trial defense counsel objected to Capt MP’s qualifications, pointing to her
lack of experience in forensic settings and the fact she had never published or
spoken on counterintuitive behavior or trauma responses. The military judge
overruled the objection under Mil. R. Evid. 702, concluding Capt MP’s “expert
scientific and specialized knowledge in the area of psychiatry could help the
trier of fact to understand the evidence or to determine a fact in issue.” He also
concluded Capt MP’s testimony “would be the product of reliable principles and
methods” and that she had the capability to apply those principles to the facts
of Appellant’s case.
Trial defense counsel also raised an objection based on the United States
Supreme Court’s holding in Daubert v. Merrell Dow Pharms., Inc., 509 U.S.
579 (1993). In response to questions from the Defense and the military judge,
Capt MP explained that the concept of fight, flight, and freeze behaviors is
widely accepted in the fields of psychiatry and psychology, but that the term of
“counterintuitive behavior” is “much more associated with the legal system
than it is with the medical system.” The military judge asked whether peer-
reviewed publications attempted to document an error rate with respect to
studies on fight, flight, and freeze responses. Capt MP responded, “Yes. I think
11 Capt MP explained that a doctor of osteopathic medicine was “very similar to a tra-
ditional doctor or an MD,” with an additional focus on “manual treatment, kind of sim-
ilar to what a chiropractor would do.”
12 Capt MP did not evaluate KB in her preparation for Appellant’s court-martial.
13
United States v. Salamanca, No. ACM S32695
there’s always—in every scientific paper I read, there’s always a discussion of
errors within the methodology, errors within the practice of collecting data,
that kind of stuff, and errors within interpretation of data.” Capt MP, however,
did not identify any particular error rate applicable to the matters at hand.
Trial defense counsel objected to Capt MP’s testimony on counterintuitive
behavior, because it was “not beyond the ken of the average layman” and was
“not helpful” because “[a]nything can be counterintuitive victim behavior.” The
military judge ruled that Capt MP would be allowed to testify about counter-
intuitive behaviors pertaining to the fight, flight, or freeze phenomenon, but
not about broader counterintuitive behaviors. The military judge also said that
he had considered the Mil. R. Evid. 403 factors and that he would not exclude
Capt MP’s testimony under that rule.
When the members returned to the courtroom, Capt MP testified that peo-
ple who are “feeling overwhelmed in a moment of trauma . . . often have a bit
of a narrowed perception” of their options and may “freeze” as opposed to
fighting or running away. She elaborated that “freezing” could entail a variety
of behaviors, to include “indirect sort of normalizing, negotiating type of inter-
actions.” According to Capt MP, when a person experiencing a traumatic situ-
ation is acquainted with his or her antagonist, the person is more likely to use
de-escalation techniques in “a nonconfrontational way of interacting with the
person who is traumatizing them.” She also said that people who have been
previously sexually victimized “are more likely to be on the freeze end of the
spectrum than a more assertive fight or flight response.” In response to a mem-
ber question, Capt MP also said that when a person has a history of being vic-
timized, it is possible “to interpret something that was meant one way in a
more threatening way.” Capt MP did not discuss whether or not she thought
any of KB’s behaviors fit this mold, nor did she provide any opinion about the
facts of the case while testifying.
After Appellant’s court-martial concluded, the military judge supple-
mented his oral ruling with a written ruling. The military judge found that
Capt MP was familiar with the concept of “fight, flight, or freeze” responses to
extremely stressful situations based upon “her academic studies, professional
experiences, and review of publications and literature on the issue.” He also
found that the concept “has been widely studied in the fields of psychology and
psychiatry,” resulting in peer-reviewed studies “subjected to scientific scrutiny,
to include analysis of error rates.” The military judge concluded that although
Capt MP was “a relatively new psychiatrist,” she had “specialized knowledge
that would assist the trier of fact to understand the evidence or to determine a
fact in issue.” Specifically, he determined that Capt MP could help the mem-
bers understand the concept of “freezing” in response to a stressful situation
14
United States v. Salamanca, No. ACM S32695
insofar as KB testified she “froze” when Appellant touched her—a fact the De-
fense had highlighted in an effort to suggest KB had not rebuffed Appellant’s
advances.
In his supplementary ruling, the military judge wrote, “Medical testimony
regarding physiological responses to trauma . . . is clearly relevant in a case
where the members are charged with evaluating the credibility of an alleged
victim who has been challenged based on the reasonableness of her reactions
to the charged offense.” He concluded that Capt MP’s testimony offered a po-
tential explanation for why KB “did not defend herself more vigorously . . . or
immediately flee her vehicle.” Because Capt MP referenced studies, spoke to
the general acceptance of the “fight, flight, or freeze” concept in the clinical
psychiatry community, and confirmed the concept had been addressed in “nu-
merous peer-reviewed academic papers utilizing rigorous scientific standards,”
the military judge concluded Capt MP’s methodology and conclusions were re-
liable and that she qualified as an expert witness.
2. Law
We review de novo the question of whether a military judge performed the
gatekeeping function required by Mil. R. Evid. 702 properly, and we review a
military judge’s decision to permit a witness to testify as an expert and any
limitations placed on the permitted scope of that witness’s testimony for abuse
of discretion. United States v. Flesher, 73 M.J. 303, 311 (C.A.A.F. 2014) (cita-
tions omitted). A military judge abuses his or her discretion when the judge’s
“findings of fact are clearly erroneous, the court’s decision is influenced by an
erroneous view of the law, or the military judge’s decision on the issue at hand
is outside the range of choices reasonably arising from the applicable facts and
the law.” United States v. Miller, 66 M.J. 306, 307 (C.A.A.F. 2008).
Mil. R. Evid. 702 permits expert testimony when the witness “is qualified
as an expert by knowledge, skill, experience, training, or education” so long as
the testimony is helpful and based upon adequate facts, reliable principles, and
reliable application of the principles to the facts. The United States Court of
Military Appeals, predecessor to the United States Court of Appeals for the
Armed Forces (CAAF), set out six factors derived from the Military Rules of
Evidence for assessing the admissibility of expert testimony: (1) the expert’s
qualifications; (2) the testimony’s subject matter; (3) the testimony’s basis; (4)
the relevance of the testimony; (5) the testimony’s reliability; and (6) whether
the probative value is outweighed by other considerations. United States v.
Houser, 36 M.J. 392, 397 (C.M.A. 1993) (citations omitted). Shortly after
Houser was decided, the Supreme Court decided Daubert and set out six non-
exclusive factors to be considered in whether scientific evidence is reliable and
15
United States v. Salamanca, No. ACM S32695
relevant. 509 U.S. at 593–95.13 The CAAF has concluded that Daubert is con-
sistent with Houser, and the Daubert decision provides “more detailed guid-
ance on the fourth and fifth Houser prongs pertaining to relevance and relia-
bility.” United States v. Griffin, 50 M.J. 278, 284 (C.A.A.F. 1999). Although Mil.
R. Evid. 702 has since been amended, Houser and Daubert are still employed
in military courts to assess the admissibility of expert testimony under that
rule. See, e.g., United States v. Henning, 75 M.J. 187, 191 (C.A.A.F. 2016).
While Daubert focused on scientific testimony, its factors may still be consid-
ered in cases involving testimony based on technical or other specialized
knowledge, but the factors do not necessarily apply in every case. Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 141 (1999) (citation omitted). The Supreme
Court has emphasized that trial judges are afforded broad latitude in deciding
how to determine the reliability of expert testimony. Id. at 142 (citation omit-
ted).
In the event of a nonconstitutional evidentiary error, the question is
“whether the error had a substantial influence on the findings.” Flesher, 73
M.J. at 318 (internal quotation marks and citations omitted). We consider four
factors in determining whether the Government has demonstrated harmless-
ness: “(1) the strength of the Government’s case; (2) the strength of the
[D]efense’s case; (3) the materiality of the evidence in question; and (4) the
quality of the evidence in question.” Id. (citation omitted).
3. Analysis
Appellant generally attacks Capt MP’s qualifications, Capt MP’s failure to
state an error rate, and the absence of a scientific test to determine whether or
not a person actually “froze” in response to a traumatic experience.
We first note that the CAAF has “made it clear that expert testimony about
the sometimes counterintuitive behavior of sexual assault or sexual abuse vic-
tims is allowed because it ‘assists jurors in disabusing themselves of widely
held misconceptions.’” Flesher, 73 M.J. at 313 (quoting Houser, 36 M.J. at 398).
In Flesher, the CAAF determined that the military judge had not sufficiently
analyzed whether the witness in question—a sexual assault response coordi-
nator—qualified as an expert in “sexual assault.” Id. at 314. In the instant
case, however, Capt MP was not just a medical doctor, but one who specialized
13 The six Daubert factors can be summarized as: (1) whether the theory or technique
can and has been tested; (2) whether it has been the subject of peer review and publi-
cation; (3) the error rate; (4) standards in place for using the technique; (5) degree of
acceptance within the scientific community; and (6) whether the danger of unfair prej-
udice substantially outweighs the evidence’s probative value. See United States v. Grif-
fin, 50 M.J. 278, 284 (C.A.A.F. 1999) (discussing the relationship between Houser and
Daubert).
16
United States v. Salamanca, No. ACM S32695
in psychiatry, having performed a four-year residency focused on the topic.
Moreover, Capt MP was the base psychiatrist, and she explained that the fight,
flight, or freeze concept was part of her education, is widely accepted in the
psychiatric and psychological communities, and has been the subject of profes-
sional literature which she had reviewed in preparation for her testimony.
Thus, we conclude Capt MP possessed qualifying knowledge, experience, train-
ing, and education related to psychiatric matters in general as well as the spe-
cific topic the Government wished to present. The fact she was testifying for
the first time is of little significance, given the fact there must be a first time
for every testifying expert.
Other than questioning Capt MP’s ability to conclusively determine
whether or not a particular person in fact “froze” in response to a traumatic
experience, trial defense counsel did not meaningfully attack the concepts upon
which Capt MP was testifying. On appeal, Appellant argues Capt MP did not
explicitly state an error rate with respect to the literature on the fight, flight,
or freeze concepts. However, Capt MP did not testify there was no established
error rate. To the contrary, she said there was, but she did not state what that
rate was during her testimony. In any event, solely focusing on the error rate
of a widely known phenomenon of human behavior would hardly seem to be
determinative on the question of admissibility, and instead would inform the
weight Capt MP’s testimony about the phenomenon should be given. Consid-
ering that the Defense largely focused on KB’s conduct in the car in order to
advance theories that KB actually consented to the conduct or that Appellant
mistakenly believed she had, alternative explanations for KB’s conduct were
plainly relevant.
That said, we tend to agree with Appellant that the relevance of Capt MP’s
actual testimony was not great in light of the nominal evidence that KB actu-
ally fought, fled, or froze at any point during the encounter. Capt MP generally
referred to people employing “negotiating type” behaviors as a type of “freez-
ing,” but she did not explain what aspects of KB’s conduct, if any, fit into this
category. Moreover, there was not any obvious evidence of KB “negotiating”
with respect to Appellant touching her vaginal area. As noted above, Capt MP
did not offer her expert opinion about the case, nor did she apply her knowledge
to the facts of the case—instead, she just explained the science surrounding
responses to traumatic events, none of which neatly lined up with KB’s actual
conduct. After all, KB left the car on multiple occasions, told Appellant “no” at
certain times, physically resisted his attempt to reach under her shirt, con-
versed with him about a variety of topics, and ultimately ended the encounter
by telling Appellant she needed to go walk her dogs. Based upon that factual
foundation, it is not entirely clear how Capt MP’s testimony would be helpful,
although we acknowledge some members might have concluded KB was em-
17
United States v. Salamanca, No. ACM S32695
ploying “negotiating” strategies in an unsuccessful effort to redirect Appel-
lant’s advances. Even though her testimony might have had relatively low pro-
bative value, we see no indication that such value was substantially out-
weighed by the danger of unfair prejudice. Instead, Capt MP’s testimony would
offer a potential alternative hypothesis for why KB acted the way she did—a
hypothesis readily susceptible to being tested and countered by the Defense.
Therefore, we conclude the military judge did not abuse his discretion in ad-
mitting the testimony.
Even if we found the military judge did abuse his discretion, we would find
the error did not materially prejudice Appellant’s substantial rights. We reach
that conclusion, in part, for the same reason the testimony did not strongly
correlate with the evidence: it provided the Government little pertinent am-
munition tied to the facts of the case. KB testified she “just couldn’t move”
when Appellant touched her vagina the second time, but she told Appellant at
that same time she needed to go home, effectively ending the encounter—con-
duct arguably at odds with the notions of being “frozen” or engaging in “nego-
tiating” behaviors. The Defense effectively established the disconnect between
Capt MP’s testimony and KB’s actual behavior, thereby diminishing the im-
pact of Capt MP’s testimony. The real force of the Government’s case lay in
KB’s own testimony and Appellant’s incriminating post-assault messages. As
delivered to the members, Capt MP’s testimony offered little commentary di-
rectly addressing the facts of the case. As a result, the Government’s case and
the Defense’s case were comparable in terms of strength even without Capt
MP’s testimony, the materiality and quality of Capt MP’s testimony was low
in the face of the actual facts of the case, and we therefore conclude any error
in admitting her testimony was harmless.
C. Victim’s Prior Acts
Because Appellant’s third and fourth issues cover similar issues, we con-
sider them together.
1. Additional Background
Prior to his court-martial, Appellant made a motion to admit certain evi-
dence regarding KB’s conduct prior to the assault.14 The conduct relevant here
is that KB had said she found Appellant attractive and that she had once
shown Appellant a revealing picture of herself. The military judge found as fact
that prior to Appellant’s arrival at Hill AFB in 2018, KB searched for Appellant
14 This motion was raised during a closed hearing. The transcript of that hearing, along
the motion itself, the Government’s response, and the military judge’s ruling were all
sealed by the military judge. We limit our discussion of sealed material to that which
is necessary for our analysis.
18
United States v. Salamanca, No. ACM S32695
on the Internet, as he was going to be her supervisor—apparently a common
practice in the unit when members learned of newcomers. Once she found Ap-
pellant’s Facebook page, she remarked that she thought Appellant was “‘cute’
or words to that effect.” After Appellant arrived, KB made comments to others
on occasion—about two times a year—that she thought Appellant “looked
good” in civilian clothes. At some point in 2020, KB showed a picture to Appel-
lant—in addition to some of their co-workers—of a tattoo she had recently ac-
quired. The tattoo was on her ribcage, just below her breasts. In the picture,
KB was wearing only underwear, and she was covering her breasts with one
arm. According to testimony on the motion, KB was showing the picture to
other co-workers. Appellant asked what she was doing, and KB said, “I’m just
trying to show you my tattoo.”15
The Defense’s motion was styled as seeking the admission of evidence un-
der Mil. R. Evid. 412. The military judge, however, concluded the comments
about Appellant’s appearance were evidence of neither KB’s sexual behavior
nor sexual predisposition, so the rule did not apply. In arriving at this conclu-
sion, the military judge noted that he did “not ignore the common sense prop-
osition that one might be more apt to engage in sexual behavior with someone
he or she believes to be attractive.” He added, “it is commonplace to note that
someone is or is not attractive,” and such comments had only a “tenuous con-
nection” to notions of sexual behavior or predisposition. Nevertheless, the mil-
itary judge concluded the evidence did not meet the threshold for relevance
under Mil. R. Evid. 401, as it had “no tendency to make a fact of consequence
more or less probable.” Even if the evidence had some relevance, the military
judge contended its probative value was “substantially outweighed by the dan-
ger of unfair prejudice, confusion of the issues, or misleading the members.”
The military judge did not further explain why he concluded the evidence had
no relevance or why it was substantially outweighed by the concerns he iden-
tified, but he ruled the Defense was prohibited from eliciting the evidence.
The military judge largely authorized the Defense to inquire into the na-
ture of Appellant’s relationship with KB, co-workers’ observations about their
relationship, and the pre-assault discussions of sexually explicit topics between
Appellant and KB. The military judge did not, however, permit the Defense to
elicit evidence about the tattoo picture. He concluded that because KB had
shown the picture to a group of people—as opposed to just Appellant—the in-
cident would potentially portray KB as being “sexually open.” He further de-
termined evidence about the incident did not meet any exception under Mil. R.
15 The Defense’s motion covered a variety of other conduct between KB and Appellant.
We only discuss the aspects of the motion Appellant challenges on appeal.
19
United States v. Salamanca, No. ACM S32695
Evid. 412, and even if it did, its probative value was substantially outweighed
by Mil. R. Evid. 403 considerations.
2. Law
We review a military judge’s decision to admit evidence over objection for
abuse of discretion. United States v. Hyppolite, 79 M.J. 161, 164 (C.A.A.F. 2019)
(citing United States v. Phillips, 52 M.J. 268, 272 (C.A.A.F. 2000)). We employ
the same standard for a military judge’s ruling that excludes evidence under
Mil. R. Evid. 412. 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.” Miller, 66 M.J. at 307. “The abuse of discretion
standard is a strict one, calling for more than a mere difference of opinion. The
challenged action must be ‘arbitrary, fanciful, clearly unreasonable, 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)) (additional internal quo-
tation marks omitted).
If proffered evidence has any tendency to make a fact of consequence more
or less probable, then the evidence is relevant. Mil. R. Evid. 401. Absent a rule
requiring otherwise, relevant evidence is admissible. Mil. R. Evid. 402. Even
when evidence is relevant, a military judge may prohibit its admission when
the evidence’s probative value is substantially outweighed by such considera-
tions as unfair prejudice, confusing the issues, and wasting time. Mil. R. Evid.
403. Military judges have “wide discretion” in applying the Mil. R. Evid. 403
balancing test; however, military judges are afforded less deference when they
do not explain their analysis on the record, and we give them no deference
when they do not conduct the analysis at all. United States v. Manns, 54 M.J.
164, 166 (C.A.A.F. 2000).
Under Mil. R. Evid. 412, evidence of an alleged victim’s sexual predisposi-
tion and evidence that an alleged victim engaged in other sexual behavior is
generally inadmissible. Mil. R. Evid. 412(a). The intent of the rule is to “shield
victims of sexual assaults from the often embarrassing and degrading cross-
examination and evidence presentations common to sexual offense prosecu-
tions.” United States v. Ellerbrock, 70 M.J. 314, 318 (C.A.A.F. 2011) (alteration,
internal quotation marks, and citations omitted). One exception to this rule is
when the evidence is of “a victim’s sexual behavior with respect to the person
accused of the sexual misconduct, if offered by the accused to prove consent.”
Mil. R. Evid. 412(b)(2). The probative value of such evidence must outweigh
the danger of unfair prejudice to the victim’s privacy in order to be admissible
under the rule. Mil. R. Evid. 412(c)(3). “‘Sexual behavior’ includes any sexual
20
United States v. Salamanca, No. ACM S32695
behavior not encompassed by the alleged offense,” while “‘sexual predisposi-
tion’ refers to a victim’s mode of dress, speech, or lifestyle . . . that may have a
sexual connotation for the fact finder.” Mil. R. Evid. 412(d). A second exception
to this rule is when exclusion of the evidence would violate an accused’s con-
stitutional rights. Mil. R. Evid. 412(b)(3). It is the defense’s burden to demon-
strate the exception applies. United States v. Banker, 60 M.J. 216, 223
(C.A.A.F. 2004). In order to show that the exclusion of evidence would violate
an accused’s constitutional rights, the defense must show that the evidence is
relevant, material, and favorable to his defense, “and thus whether it is ‘nec-
essary.’” Id. at 222 (quoting United States v. Williams, 37 M.J. 352, 361 (C.M.A.
1993) (Gierke, J., concurring)). The term “favorable” means the evidence is “vi-
tal.” United States v. Smith, 68 M.J. 445, 448 (C.A.A.F. 2010) (citations omit-
ted). Moreover, the probative value of the evidence must outweigh the dangers
of unfair prejudice under a Mil. R. Evid. 403 analysis. United States v. Gaddis,
70 M.J. 248, 256 (CA.A.F. 2011).
3. Analysis
a. Comments About Appellant’s Appearance
On appeal, Appellant argues the military judge erred by excluding KB’s
comments about Appellant’s appearance. Appellant points to the military
judge’s statement that it is “common sense” that a person is more likely to en-
gage in sexual activity with someone he or she found attractive as an indication
of the relevance of KB’s comments. Appellant asks us to give the military
judge’s Mil. R. Evid. 403 decision “less deference” because the military judge
placed no analysis of that matter on the record. Appellant’s primary contention
is that the evidence served to “elucidate the relationship” between Appellant
and KB, as well as offer some evidence of KB’s consent to Appellant touching
her.
The Government responds that the comments were remote in time to the
sexual misconduct, were innocuous, and were not the sort that would com-
municate any actual sexual interest in a person. The Government further notes
the absence of evidence that any of the comments were ever communicated to
Appellant. Even if the evidence should have been admitted, the Government
asserts Appellant was not prejudiced given the fact he was able to introduce
other evidence of his close relationship with KB, to include the perception in
their unit that they acted flirtatiously toward each other.
On appeal, neither Appellant nor the Government challenge the military
judge’s conclusion that this evidence fell outside the ambit of Mil. R. Evid. 412.
We similarly see no reason to question this aspect of the military judge’s ruling.
With respect to the issue Appellant has raised, we conclude the military judge
did not abuse his discretion in excluding this evidence. Regarding Appellant’s
21
United States v. Salamanca, No. ACM S32695
argument about the military judge’s Mil. R. Evid. 403 analysis, we note that
the military judge determined the evidence was not relevant under Mil. R.
Evid. 401. As a result, the military judge would not reach Mil. R. Evid. 403
because that rule is focused on the authority to exclude relevant evidence. As
explained in Mil. R. Evid. 402(b), “[i]rrelevant evidence is not admissible,” and
there is no Mil. R. Evid. 403 analysis with respect to evidence which has al-
ready been found to be inadmissible. The military judge did not abuse his dis-
cretion in concluding the Defense failed to establish that KB’s comments about
Appellant’s appearance were relevant to any fact of consequence in Appellant’s
court-martial. Quite simply, the question was whether or not KB consented to
Appellant touching her vagina while they were in her car on 14 August 2020.
The military judge was well within his discretion to find the fact KB had de-
scribed Appellant as “cute” two years earlier and said a few times that he
looked good in civilian clothes provides no indication of whether she consented
to the sexual contact at issue.16 As the military judge noted, comments about
others’ appearance are common conversation topics and—without more—do
not evidence a desire to participate in sexual activity with the subject of the
conversation. More relevant on this point would be KB’s relationship with and
interaction with Appellant close to the time of the alleged assault, evidence of
which the Defense was permitted to present. Even if KB’s comments could
somehow be stretched to the point that they suggested she had some sexual
interest in Appellant, their evidentiary value would be marginal, at best. Given
the amount of evidence permitted about how others perceived KB’s relation-
ship with Appellant, that marginal value would be substantially outweighed
by such Mil. R. Evid. 403 concerns as preventing the needless presentation of
cumulative evidence, and the military judge therefore did not abuse his discre-
tion by blocking its admission.
b. Picture of KB’s Tattoo
Like the comments about Appellant’s appearance, Appellant contends KB
trying to show him the picture of her tattoo was evidence that KB had a sexual
interest in him. He argues the military judge should have admitted the evi-
dence under both Mil. R. Evid. 412(b)(2) and 412(b)(3). Essentially, Appellant’s
theory is that KB attempting to show him the picture on a previous occasion
“demonstrates her inclination, attraction, partiality, and/or desire to have a
consensual sexual relationship with Appellant.” Appellant connects the inci-
dent in the car with the tattoo picture by suggesting that in both cases, KB
“gave her phone to Appellant to show him intimate pictures of herself.”
16 During the pretrial hearing on this matter, no evidence was presented that Appel-
lant was aware of any of these comments, so they would not bear on Appellant’s mis-
take-of-fact defense.
22
United States v. Salamanca, No. ACM S32695
The military judge did not abuse his discretion in excluding evidence of this
picture. A significant factor for our assessment is that KB did not exclusively
show the picture to Appellant. Instead, she was showing it to other co-workers
prior to Appellant becoming involved in the episode. Therefore, there is no in-
dication KB was showing the picture in order to send some sort of “signal” to
Appellant or to suggest that she was somehow specifically interested in him.
We might see more relevance in the picture had KB showed the picture solely
to Appellant, but that is not what happened here. At the most, the evidence of
KB trying to show the picture to Appellant is evidence of the general nature of
her relationship with Appellant—that is, that she felt comfortable enough with
him to show him a picture of herself in her underwear. KB’s willingness to
show others the picture is the kind of evidence that would suggest KB’s sexual
predisposition insofar as it might have a sexual connotation for a factfinder. It
is this sort of evidence that Mil. R. Evid. 412 bars. Because Appellant cannot
demonstrate how KB showing the picture to her co-workers and then attempt-
ing to show it to him amounts to evidence she consented to him touching her
vagina in her car, the evidence about the episode was inadmissible under Mil.
R. Evid. 412(b)(2). Moreover, Appellant has failed to establish how the exclu-
sion violated any constitutional right of his, especially given the marginal pro-
bative value of the evidence. The Defense was permitted to present a substan-
tial amount of evidence about KB’s relationship with Appellant, as well as to
elicit the sensitive and sexualized nature of their conversation in the car. There
was also no indication KB denied the picture episode, such that her credibility
might be attacked upon it. As a result, Mil. R. Evid. 412(b)(3) offers Appellant
no relief, and Appellant has not demonstrated the military judge abused his
discretion in excluding the evidence.
D. Sentence Severity
We review issues of sentence appropriateness de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006) (citing United States v. Cole, 31 M.J. 270,
272 (C.M.A. 1990)). Our authority to determine sentence appropriateness “re-
flects the unique history and attributes of the military justice system, [and]
includes but is not limited to considerations of uniformity and evenhanded-
ness of sentencing decisions.” United States v. Sothen, 54 M.J. 294, 296
(C.A.A.F. 2001) (citations omitted). We may affirm only as much of the sen-
tence as we find correct in law and fact and determine should be approved on
the basis of the entire record. Article 66(d), UCMJ, 10 U.S.C. § 866(d). “We
assess sentence appropriateness by considering the particular appellant, the
nature and seriousness of the offense, the appellant’s record of service, and all
matters contained in the record of trial.” United States v. Anderson, 67 M.J.
703, 705 (A.F. Ct. Crim. App. 2009) (citations omitted). Although we have great
discretion to determine whether a sentence is appropriate, we have no power
23
United States v. Salamanca, No. ACM S32695
to grant mercy. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010) (cita-
tion omitted).
Appellant argues that the adjudged bad-conduct discharge renders his sen-
tence inappropriately severe. He focuses on challenges he faced as a child, the
care he provided his severely injured brother, and his outstanding duty perfor-
mance. He also claims that there were few—if any—aggravating aspects about
his offense. He specifically relies on statements KB made during her initial
interview with AFOSI agents in which she indicated she thought the incident
was not particularly severe and that she did not want Appellant to be dis-
charged from the military as a result. We first note that this interview was
never admitted as evidence at Appellant’s court-martial, so its relevance and
context were unexplored at trial. Second, the interview took place the very next
day after the sexual contact, so it very likely KB had not had sufficient time to
fully process her feelings about the matter. Finally, KB took a very different
position in the unsworn statement she submitted to the military judge in which
she discussed, inter alia, how the incident had led to a deterioration of her
mental health to the point that she had to be prescribed a new narcotic medi-
cation.
Even with the bad-conduct discharge, we do not find Appellant’s sentence
to be inappropriately severe. In the car, KB had already told Appellant she did
not like it when he touched her vagina because she had been previously raped.
Nevertheless, Appellant—a noncommissioned officer both senior in grade to
KB and her former supervisor—persisted and touched her again without mak-
ing any obvious effort to first obtain her consent. Considering Appellant, his
record of service, his personal circumstances, and everything else in the record
of trial, we conclude Appellant’s sentence to a bad-conduct discharge, 70 days
of confinement, reduction to the grade of E-1, and a reprimand is not inappro-
priately severe.
III. CONCLUSION
The findings and sentence as entered are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the find-
ings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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