United States v. Mendoza ( 2024 )

This opinion is subject to revision before publication.
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Isac D. MENDOZA, Staff Sergeant
United States Army, Appellant
No. 23-0210
Crim. App. No. 20210647
Argued March 5, 2024—Decided October 7, 2024
Military Judges: Steven C. Henricks
and Ryan W. Rosauer
For Appellant: Captain Matthew S. Fields (argued);
Colonel Philip M. Staten, Major Bryan A. Osterhage,
and Jonathan F. Potter, Esq. (on brief); Captain
Carol K. Rim.
For Appellee: Captain Anthony J. Scarpati (argued);
Colonel Christopher B. Burgess, Lieutenant Colonel
Jacqueline J. DeGaine, and Major Chase C. Cleve-
land (on brief).
Judge HARDY delivered the opinion of the Court, in
which Chief Judge OHLSON and Judge JOHNSON
joined. Judge SPARKS filed a separate opinion, con-
curring in part and dissenting in part and in the
judgment. Judge MAGGS filed a separate opinion,
concurring in part and dissenting in part.
_______________
United States v. Mendoza, No. 23-0210/AR
Opinion of the Court
Judge HARDY delivered the opinion of the Court.
After a night of socializing and heavy drinking with
other soldiers, JW blacked out, leaving her with no further
memories until the following morning. An investigation by
the United States Army Criminal Investigation Division
(CID) established that later that night, JW and Appellant
went to Appellant’s barracks room where Appellant per-
formed a sexual act upon JW. Under the theory that JW
did not consent to the act, the Government charged Appel-
lant with sexual assault in violation of Article 120(b)(2)(A),
Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 920(b)(2)(A) (2018). 1 Notably, the Government did not
charge Appellant with a sexual assault under Arti-
cle 120(b)(3)(A), UCMJ, which would have required the
Government to prove both that Appellant committed a sex-
ual act on JW when JW was incapable of consenting to the
sexual act due to impairment by any drug, intoxicant, or
other similar substance and that Appellant knew or should
have known that JW was incapable of consenting.
At trial, the Government presented evidence of JW’s ex-
treme intoxication and argued to the military judge sitting
alone both that JW would not have consented to sexual in-
tercourse with Appellant and that she was incapable of
consenting to sexual intercourse due to her high level of in-
toxication. The military judge found Appellant guilty, con-
trary to his plea, of one specification of sexual assault in
violation of Article 120, UCMJ, and the United States
Army Court of Criminal Appeals (ACCA) affirmed. United
States v. Mendoza, No. ARMY 20210647, 2023 CCA LEXIS
198, at *10, 2023 WL 3540415, at *4 (A. Ct. Crim. App. May
8, 2023) (unpublished).
Before this Court, Appellant challenges the legal suffi-
ciency of his conviction on the grounds that the Govern-
ment failed to introduce affirmative evidence of the lack of
1 Appellant was also charged with and acquitted of a second
specification of abusive sexual contact in violation of Article 120,
UCMJ.
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United States v. Mendoza, No. 23-0210/AR
Opinion of the Court
consent beyond a reasonable doubt. We disagree with Ap-
pellant that direct evidence of JW’s lack of consent was nec-
essary for his conviction to be legally sufficient, but we do
agree with his secondary argument that Arti-
cle 120(b)(2)(A), UCMJ, and Article 120(b)(3)(A), UCMJ,
create separate theories of criminal liability. Arti-
cle 120(b)(2)(A), UCMJ, criminalizes engaging in a sexual
act with a person capable of consenting who did not con-
sent, and Article 120(b)(3)(A), UCMJ, criminalizes engag-
ing in a sexual act with a person who is incapable of con-
senting due to impairment by any drug, intoxicant, or other
similar substance when the accused knows or should have
known that the person was incapable of consenting.
In this case, the Government elected not to charge Ap-
pellant with sexual assault under Article 120(b)(3)(A),
UCMJ (a sexual act upon a person incapable of consenting),
and instead charged Appellant with sexual assault under
Article 120(b)(2)(A), UCMJ (a sexual act upon a person ca-
pable of consenting who did not consent). Nevertheless, at
trial the Government presented significant evidence of
JW’s extreme intoxication and argued that JW’s inability
to consent established the absence of consent. The Govern-
ment’s approach—which conflated two different and incon-
sistent theories of criminal liability—raises significant due
process concerns. Because the ACCA’s decision upholding
Appellant’s conviction does not explain how or why the ev-
idence of JW’s intoxication factored into its analysis, we re-
verse the decision of the ACCA and remand the case for the
court to reconsider its legal and factual sufficiency analysis
in light of this opinion.
I. Background
In July 2020, Appellant and JW were both stationed at
Camp Casey, Korea. On July 11, 2020, JW went off-post to
eat and drink with fellow soldiers. When the group re-
turned to the barracks, they joined other soldiers, including
Appellant, who were socializing outside. JW testified that
she recalled coming back to the barracks, seeing the other
soldiers outside, and continuing to drink with them before
she eventually blacked out.
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United States v. Mendoza, No. 23-0210/AR
Opinion of the Court
JW’s next memory was waking up the following morn-
ing to Appellant knocking on her barracks room door to re-
turn her shoes. JW did not recognize Appellant and did not
know why he was at her door. JW went back to sleep and
woke up to Appellant again knocking at her door to ask if
she was okay.
Afterwards, JW went to the bathroom and “realized
something was wrong.” JW noticed that she was not wear-
ing the underwear she had been wearing the night before
and that her tampon was pushed all the way inside her to
the extent that she could not reach the string. JW testified
that she had never inserted a tampon so far, and that she
would never have sex with her tampon in or when she was
on her period. Realizing that something was wrong and
starting to panic, JW went to the barracks Charge of Quar-
ters (CQ) desk to try to identify Appellant and learn what
happened the night before.
The CQ noncommissioned officer (NCO) testified that
JW was crying and was very upset when she came to the
CQ desk. The CQ NCO contacted a Sexual Harassment/As-
sault Response and Prevention (SHARP) program repre-
sentative, who later met with JW and arranged for her to
file a report and to receive a sexual assault forensic exam-
ination (SAFE) at the troop medical clinic.
While she was waiting to be taken to the medical clinic,
JW went to her friend, Specialist (SPC) RL, to ask what
had happened the night before. SPC RL testified that JW
was upset, crying, and confused when they spoke. After JW
left for the clinic, SPC RL and his NCO spoke to Appellant
after hearing reports of his interactions with JW the previ-
ous night. Appellant told SPC RL and his NCO that JW
had fallen asleep in his bed. During their conversation, JW
called SPC RL, who handed the phone to Appellant. JW
asked Appellant what happened, and he replied that noth-
ing happened, and that she had locked herself in his bath-
room. Appellant then requested to accompany SPC RL and
his NCO to the clinic to see JW. On the way, Appellant told
SPC RL that JW had taken a shower in his room and then
put her shirt on backwards. At the parking lot of the clinic,
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United States v. Mendoza, No. 23-0210/AR
Opinion of the Court
Appellant told a CID agent who was conducting canvassing
interviews that JW had been in his room the night before.
During a later interview with the CID agent, Appellant
admitted to having sexual intercourse with JW in his bed-
room. He acknowledged that JW was extremely intoxicated
at the time and that she was incapable of consenting be-
cause of her intoxication. Appellant also admitted that he
“was in control the whole time” during intercourse; how-
ever, he never admitted that JW verbally or physically
withheld consent. U.S. Army Criminal Investigation La-
boratory testing of cervical swabs taken from JW during
her SAFE exam confirmed the presence of semen matching
Appellant’s DNA profile.
Evidence collected by CID during its investigation, in-
cluding CCTV footage from the barracks, helped recon-
struct the events at the barracks during the period when
JW blacked out. Witnesses testified that they saw JW
drink and socialize with other soldiers, including Appel-
lant, while displaying symptoms of intoxication, including
slurred speech and unsteady movements. Some soldiers
also noted JW’s flirtatious behavior with Appellant and
others. The CCTV footage from the barracks showed that
JW walked unsteadily with Appellant to his room while
Appellant grabbed her crotch. Later, the footage captured
JW and Appellant exiting his room with JW’s arms seem-
ingly draped over Appellant’s shoulders for support. JW
testified that she remembered nothing of her encounter
with Appellant.
A military judge sitting as a general court-martial con-
victed Appellant of one specification of sexual assault in vi-
olation of Article 120(b)(2)(A), UCMJ, and sentenced him
to a dishonorable discharge, thirty months of confinement,
and reduction to the grade of E-1. The convening authority
approved the sentence and waived automatic forfeitures of
all pay and allowances for six months for the benefit of Ap-
pellant’s wife.
On appeal before the ACCA, Appellant argued that the
evidence was factually insufficient because the
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United States v. Mendoza, No. 23-0210/AR
Opinion of the Court
Government “produced no evidence that the victim did not
consent to sexual intercourse.” Mendoza, 2023 CCA LEXIS
198, at *8, 2023 WL 3540415, at *3. The ACCA rejected this
argument, explaining that several factors led it to find Ap-
pellant’s conviction factually sufficient, “including but not
limited to: the victim’s high level of intoxication, [A]ppel-
lant’s statement to CID, eyewitness testimony, and the
CCTV footage.” Id., 2023 WL 3540415, at *3. Because the
ACCA was “convinced of [A]ppellant’s guilt beyond a rea-
sonable doubt,” it affirmed his conviction. Id. at *10, 2023
WL 3540415, at *3-4 (citation omitted) (internal quotation
marks omitted).
We granted review to determine whether Appellant’s
conviction for sexual assault without consent was legally
sufficient. United States v. Mendoza, 84 M.J. 105 (C.A.A.F.
2023) (order granting review).
II. Discussion
In most legal sufficiency cases, which we review de
novo, the Court asks “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. Smith,
83 M.J. 350, 359 (C.A.A.F. 2023) (citations omitted)
(internal quotation marks omitted). Because the Court
draws every reasonable inference from the evidence in
favor of the prosecution, “[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) (citations omitted)
(internal quotation marks omitted). This deferential
standard impinges upon the factfinder’s discretion “ ‘only
to the extent necessary to guarantee the fundamental
protection of due process of law.’ ” Id. (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979)).
This case, however, departs from the usual “reasonable
trier of fact” analysis because Appellant challenges the le-
gal sufficiency of his sexual assault conviction on two unu-
sual grounds. First, Appellant argues that the evidence
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United States v. Mendoza, No. 23-0210/AR
Opinion of the Court
was legally insufficient because the Government relied
solely on circumstantial evidence to prove that JW did not
consent to the sexual activity. In Appellant’s view, the Gov-
ernment’s failure to present any “affirmative” evidence of
JW’s lack of consent means that no rational factfinder
could legally find him guilty under Article 120(b)(2)(A),
UMCJ.
In the alternative, Appellant argues that his conviction
was legally insufficient because the Government violated
his due process rights by conflating two different theories
of criminal liability under Article 120, UCMJ, during his
court-martial. Appellant asserts that Article 120(b)(2)(A),
UCMJ, and Article 120(b)(3)(A), UCMJ, establish separate
theories of liability, and that the Government robbed him
of his due process right to fair notice by arguing that JW
was incapable of consenting due to alcohol intoxication
without charging Appellant with sexual assault under Ar-
ticle 120(b)(3)(A), UCMJ. In Appellant’s view, because the
Government charged him under Article 120(b)(2)(A),
UCMJ, (sexual assault without consent), he had no notice
that he needed to defend himself from the Government’s
allegation that JW was incapable of consenting. We con-
sider each of Appellant’s arguments in turn.
A. Article 120(b)(2)(A) does not require
“affirmative” evidence
This Court has repeatedly held that the Government
may meet its burden of proving an accused’s guilt beyond a
reasonable doubt with circumstantial evidence. United
States v. Long, 81 M.J. 362, 368 (C.A.A.F. 2021); see also
King, 78 M.J. at 221 (first citing United States v. Kearns,
73 M.J. 177, 182 (C.A.A.F. 2014); then citing United States
v. Young, 64 M.J. 404, 407 (C.A.A.F. 2007)). Nevertheless,
Appellant argues that this principle works differently in
sexual assault cases, which—in Appellant’s view—require
“at least a single fact related to affirmative non-consent in
order to deem a conviction for sexual assault without con-
sent legally sufficient.” Reply Brief of Appellant at 13,
United States v. Mendoza, No. 23-0210 (C.A.A.F. Jan. 12,
2024) (emphasis in original).
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United States v. Mendoza, No. 23-0210/AR
Opinion of the Court
We disagree. The President has instructed that findings
of guilt “may be based on direct or circumstantial evi-
dence,” without mention of any exception for certain of-
fenses. Rule for Court Martial (R.C.M.) 918(c). And in
Long—a case involving rape and other sex offenses—we
recognized that “the government is free to meet its burden
of proof with circumstantial evidence.” 81 M.J. at 368 (al-
teration in original removed) (internal quotation marks
omitted) (quoting King, 78 M.J. at 221). The President’s in-
structions and our case law are consistent with the Su-
preme Court’s guidance that circumstantial evidence “is in-
trinsically no different from testimonial evidence.” Holland
v. United States, 348 U.S. 121, 140 (1954); see also Desert
Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003) (“we have
never questioned the sufficiency of circumstantial evidence
in support of a criminal conviction, even though proof be-
yond a reasonable doubt is required”). Accordingly, we re-
iterate once again that the absence of direct evidence of an
element of an offense does not prevent a finding of guilty
for that offense from being legally sufficient.
B. Article 120(b)(2)(A) and Article 120(b)(3)(A)
establish separate theories of liability 2
Appellant’s alternative argument requires us to exam-
ine Article 120(b)(2)(A), UCMJ, to determine whether the
Government can prove sexual assault “without the con-
sent” of the victim by establishing that the victim was in-
capable of consenting. This Court reviews questions of stat-
utory interpretation de novo. United States v. Lopez de
Victoria, 66 M.J. 67, 73 (C.A.A.F. 2008). The first step in
statutory interpretation cases “is to determine whether the
language at issue has a plain and unambiguous meaning
with regard to the particular dispute in the case.” United
States v. McPherson, 73 M.J. 393, 395 (C.A.A.F. 2014) (ci-
tation omitted) (internal quotation marks omitted). “[I]f
2 All statutory references in this part of the opinion are to
Article 120, UCMJ, 10 U.S.C. § 920 (2018), unless otherwise in-
dicated. For readability purposes, we refer to “subsection
(b)(2)(A)” and “subsection (b)(3)(A)” for Article 120(b)(2)(A),
UCMJ, and Article 120(b)(3)(A), UCMJ, respectively.
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United States v. Mendoza, No. 23-0210/AR
Opinion of the Court
the statutory language is unambiguous and the statutory
scheme is coherent and consistent,” the inquiry is done. Id.“Whether the statutory language is ambiguous is deter-
mined ‘by reference to the language itself, the specific con-
text in which that language is used, and the broader con-
text of the statute as a whole.’ ” Id. (quoting Robinson v.
Shell Oil Co., 519 U.S. 337, 341 (1997)).
When we engage in this analysis, the Court “ ‘typically
seeks to harmonize independent provisions of a statute.’ ”
United States v. Kelly, 77 M.J. 404, 407 (C.A.A.F. 2018)
(quoting United States v. Christian, 63 M.J. 205, 208
(C.A.A.F. 2006)). To this end, this Court employs the sur-
plusage canon, which requires “that, if possible, every word
and every provision is to be given effect and that no word
should be ignored or needlessly be given an interpretation
that causes it to duplicate another provision or to have no
consequences.” United States v. Sager, 76 M.J. 158, 161
(C.A.A.F. 2017).
1. Text of Article 120(b), UCMJ
Article 120(b), UCMJ, criminalizes sexual assault in the
military and defines multiple ways in which the Govern-
ment may prove the offense. Article 120(b), UCMJ, pro-
vides in relevant part:
(b) SEXUAL ASSAULT.—Any person subject to
this chapter who—
(1) commits a sexual act upon another person
by—
(A) threatening or placing that other per-
son in fear;
(B) making a fraudulent representation
that the sexual act serves a professional
purpose; or
(C) inducing a belief by any artifice, pre-
tense, or concealment that the person is
another person;
(2) commits a sexual act upon another
person—
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United States v. Mendoza, No. 23-0210/AR
Opinion of the Court
(A) without the consent of the other person;
or
(B) when the person knows or reasonably
should know that the other person is
asleep, unconscious, or otherwise unaware
that the sexual act is occurring; or
(3) commits a sexual act upon another person
when the other person is incapable of consent-
ing to the sexual act due to—
(A) impairment by any drug, intoxicant, or
other similar substance, and that condition
is known or reasonably should be known by
the person; or
(B) a mental disease or defect, or physical
disability, and that condition is known or
reasonably should be known by the person;
is guilty of sexual assault and shall be punished
as a court-martial may direct.
The article defines “consent” as “a freely given agree-
ment to the conduct at issue by a competent person” and
explicitly states that “[a]ll the surrounding circumstances
are to be considered in determining whether a person gave
consent.” Article 120(g)(7)(A), (C), UCMJ. The article sepa-
rately defines “incapable of consenting” as meaning that a
person is “incapable of appraising the nature of the conduct
at issue” or “physically incapable of declining participation
in, or communicating unwillingness to engage in, the sex-
ual act at issue.” Article 120(g)(8), UCMJ.
In this case, the Government charged Appellant under
Article 120(b)(2)(A), UCMJ, which criminalizes sexual as-
sault “without the consent” of a victim. The Government
defends its choice by arguing that the plain language of
subsection (b)(2)(A) permits it to meet its burden of proof
with evidence of JW’s lack of capacity to consent due to her
level of intoxication. The Government dismisses Appel-
lant’s due process concerns, arguing that he was convicted
of precisely the crime with which he was charged—sexual
assault without consent—and that nothing prevents
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United States v. Mendoza, No. 23-0210/AR
Opinion of the Court
Congress from enacting overlapping criminal statutes that
provide the Government with multiple theories of liability.
Our analysis begins, as it must, with the text of the stat-
ute. It is true, as the Government argues, that the language
of subsection (b)(2)(A) does not expressly foreclose the Gov-
ernment from proving that JW did not consent by present-
ing evidence that she was incapable of consenting. But it is
also true, as Appellant argues, that nothing in the lan-
guage of subsection (b)(2)(A)—or in any other part of the
article—forecloses Appellant’s interpretation that subsec-
tion (b)(2)(A) presumes that the victim was capable of con-
senting. However, when we look beyond the specific lan-
guage of subsection (b)(2)(A) and examine the “the specific
context in which that language is used, and the broader
context of the statute as a whole,” we do not believe that
subsection (b)(2)(A) can be read as broadly as the Govern-
ment suggests. McPherson, 73 M.J. at 395 (internal quota-
tion marks omitted) (quoting Robinson, 519 U.S. at 341).
Our analysis is guided by this Court’s decision in Sager,
76 M.J. 158. There, the Court examined the language of
Article 120(b)(2)(B), UCMJ, which criminalized a sexual
act upon another person “when the person knows or rea-
sonably should know that the other person is asleep, un-
conscious, or otherwise unaware that the sexual act is oc-
curring.” Id. at 161. The Court rejected the Government’s
argument that the phrase “asleep, unconscious, or other-
wise unaware” created a single theory of criminal liability.
Id. at 161-62. Noting Congress’s use of the disjunctive “or”
and applying the “ordinary meaning” canon of statutory
construction, the Court held that “asleep,” “unconscious,”
and “otherwise aware” reflected separate theories of liabil-
ity. Id. (“In ordinary use the word ‘or’ . . . marks an alter-
native which generally corresponds to the word ‘either.’ ”
(alteration in original) (internal quotation marks omitted)
(quoting Earl T. Crawford, The Construction of Statutes
§ 188 (1940))). The Court further noted that the Govern-
ment’s theory would violate the canon against surplusage,
by stripping the words “asleep,” “unconscious,” and “or” of
any meaning. Id. at 162 (“[T]he canon against surplusage
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United States v. Mendoza, No. 23-0210/AR
Opinion of the Court
is strongest when an interpretation would render superflu-
ous another part of the same statutory scheme.” (quoting
Yates v. United States, 574 U.S. 528, 543 (2015))).
The same logic applies to the Government’s argument
in this case. Under the Government’s theory, every sexual
act committed upon a victim who is incapable of consenting
under subsection (b)(3)(A) would also qualify as a sexual
assault under subsection (b)(2)(A) because the victim did
not consent. The Supreme Court, however, has repeatedly
instructed that courts must “give effect, if possible, to every
word of a statute.” See, e.g., Roberts v. Sea-Land Services,
Inc., 566 U.S. 93, 111 (internal quotation marks omitted)
(quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)). The
Government’s preferred approach would defy this guidance
by rendering subsection (b)(2)(A) “practically devoid of sig-
nificance,” Leocal v. Ashcroft, 543 U.S. 1, 12 (2004), and rel-
egating subsection (b)(3)(A) to mere surplusage without
any purpose or effect.
Rendering subsection (b)(3)(A) as surplusage would be
especially problematic because it would allow the Govern-
ment to circumvent the mens rea requirement that Con-
gress specifically added to the offense of sexual assault of a
victim who is incapable of consenting. To achieve a convic-
tion under subsection (b)(3)(A), the Government must
prove not only that the victim was incapable of consenting
but also that the victim’s condition was known or reasona-
bly should have been known by the accused. However, be-
cause subsection (b)(2)(A) only requires that the sexual act
be performed “without the consent” of the victim (regard-
less whether the accused knew or should have known of
that condition), if the Government can establish the ab-
sence of consent by proving that the victim was incapable
of consenting, then the Government can obtain an incapa-
ble-of-consent conviction under subsection (b)(2)(A) with-
out proving the accused’s mens rea beyond a reasonable
doubt. Indeed, this is exactly what may have happened in
Appellant’s case. The military judge may have convicted
Appellant of sexual assault on the theory that JW was in-
capable of consenting without the Government proving
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Opinion of the Court
that Appellant knew or should have known that she was
incapable. We agree with Appellant that this possibility
raises serious due process concerns.
To avoid these concerns, and consistent with the
language and structure of Article 120, UCMJ, we hold that
subsection (b)(2)(A) and subsection (b)(3)(A) establish
separate theories of liability. Subsection (b)(2)(A)
criminalizes the performance of a sexual act upon a victim
who is capable of consenting but does not consent.
Subsection (b)(3)(A) criminalizes the performance of a
sexual act upon a victim who is incapable of consenting to
the sexual act due to impairment by any drug, intoxicant,
or other similar substance when the victim’s condition is
known or reasonably should be known by the accused. Of
course, nothing prevents the Government from charging a
defendant with both offenses under inconsistent factual
theories and allowing the trier of fact to determine whether
the victim was capable or incapable of consenting. See
United Staes v. Elespuru, 73 M.J. 326, 330 (C.A.A.F. 2014)
(recognizing that the “complexity of Article 120,
UCMJ, . . . make[s] charging in the alternative an
unexceptional and often prudent decision”). But what the
Government cannot do is charge one offense under one
factual theory and then argue a different offense and a
different factual theory at trial. Doing so robs the
defendant of his constitutional “right to know what offense
and under what legal theory he will be tried and convicted.”
United States v. Riggins, 75 M.J. 78, 83 (C.A.A.F. 2016)
(citation omitted) (internal quotation marks omitted).
2. Legal Sufficiency of Appellant’s Conviction
To convict Appellant of sexual assault in violation of Ar-
ticle 120(b)(2)(A), UCMJ, the Government was required to
prove beyond a reasonable doubt that Appellant: (1) com-
mitted a sexual act upon JW, and (2) that Appellant did so
“without the consent” of JW. Here, it is undisputed that
Appellant committed a sexual act upon JW. And even
though there is no direct evidence that Appellant engaged
in sexual intercourse “without the consent” of JW, the Gov-
ernment presented significant circumstantial evidence on
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Opinion of the Court
the point. 3 Nevertheless, we agree with Appellant that
some of the Government’s arguments at trial raise signifi-
cant due process concerns about his conviction. 4
To prove the absence of consent, trial counsel:
• Argued not only that JW would not have con-
sented but also that JW was incapable of con-
senting due to alcohol intoxication.
• Presented the testimony of an expert witness
who estimated that JW’s blood alcohol level was
between 0.175 and 0.19 at the time of the sexual
act and opined that JW would have had dimin-
ished mental capacity.
• Pointed to the testimony of multiple witnesses,
saying “[e]veryone who had any interaction with
[JW] knew she was too intoxicated to function
that night,” and that their testimony confirmed
that JW “met the definition of an incompetent
person before the accused took her to his room.”
• Argued that the barracks CCTV footage showed
that when JW went to Appellant’s room, she
3 This evidence includes: (1) testimony that JW had no prior
relationship with Appellant; (2) testimony that JW would never
have sex while on her period; (3) testimony that JW would not
have pushed a tampon so far inside of herself; (4) testimony that
JW made a morning-after report to the CQ desk after she real-
ized something was wrong; (5) testimony that JW was upset;
(6) testimony that Appellant initially denied that he had en-
gaged in any sexual acts with JW; and (7) testimony that JW
locked herself in Appellant’s bathroom.
4 In his supplement to his petition for review, Appellant
asked this Court to decide whether his “conviction for sexual as-
sault without consent should be reversed?” Appellant argued
both that his conviction was legally insufficient and that there
had been a constructive amendment to the charged offense. This
Court granted review only of the legal sufficiency issue. Men-
doza, 84 M.J. at 105 (order granting review). Accordingly, we
consider any due process concerns only through the narrow lens
of legal sufficiency.
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Opinion of the Court
“was completely out of it. She’s stumbling. She’s
walking into the walls, bumping into objects, and
she has no idea what’s going on here.”
• Pointed to Appellant’s own statements in which
Appellant admitted that JW was “really drunk”
and that “she wasn’t able to give consent.”
The Government’s arguments before this Court also
make clear that the Government presented this evidence
at trial to establish that JW was incapable of consenting
and therefore there was an absence of consent. 5 But as we
explained above, that is a different theory of criminal lia-
bility and a different offense than the one the Government
charged.
Under the actual charged offense, Article 120(b)(2)(A),
UCMJ, it is not clear how the evidence of JW’s intoxication
factored into either the decision of the military judge or the
opinion of the ACCA. With respect to the military judge,
the Government states: “Whether Ms. JW was completely
incapacitated by alcohol or whether she was merely intox-
icated to a point that her resistance was significantly re-
duced was a question of fact properly before the military
judge for consideration.” But nothing in the record indi-
cates whether the military judge found that JW was capa-
ble of consenting but did not, or that JW was incapable of
consenting and thus could not. Similarly, in upholding the
factual sufficiency of Appellant’s conviction, the ACCA re-
lied on several factors, including “the victim’s high level of
intoxication.” Mendoza, 2023 CCA LEXIS 198, at *8, 2023
5 See Brief of Appellee at 8, United States v. Mendoza, No.
23-0210 (C.A.A.F. Dec. 26, 2023) (“evidence that a victim could
not consent, is also evidence that they did not consent”); id. at
12 (“The service courts of criminal appeals (CCAA) [sic] agree
that the government may meet its burden of proving ‘without
consent’ by relying mainly on evidence of extreme intoxication”
(footnote omitted)); id. at 20 (“the direct evidence of incapacita-
tion through intoxication, on its own, is overwhelming evidence
that Ms. JW did not consent”); id. at 21 (“If someone is incapable
of giving consent, clearly this is a factor in determining whether
there was consent.”).
15
United States v. Mendoza, No. 23-0210/AR
Opinion of the Court
WL 3540415, at *3. The ACCA’s express reliance on the ev-
idence of JW’s intoxication—without any explanation of
how or why that evidence factored into its analysis—raises
serious questions about the legal and factual sufficiency of
Appellant’s conviction.
Of course, we are mindful that the ACCA did not have
the benefit of our decision holding that Article 120(b)(2)(A),
UCMJ, and Article 120(b)(3)(A), UMCJ, establish separate
theories of liability. This likely explains the lack of clarity
in the ACCA’s decision with respect to how it viewed and
used the evidence of JW’s intoxication. And although this
Court does not review the factual sufficiency of convictions
when we review cases under Article 67, UCMJ, 10 U.S.C.
§ 867 (2018), we “retain the authority to review factual suf-
ficiency determinations of the CCAs for the application of
‘correct legal principles,’ but only as to matters of law.” 6
United States v. Clark, 75 M.J. 298, 300 (C.A.A.F. 2016)
(quoting United States v. Leak, 61 M.J. 234, 241 (C.A.A.F.
2005)). Indeed, in the past we have remanded cases when
there is an “open question” whether the CCA’s factual suf-
ficiency analysis applied correct legal principles. United
States v. Thompson, 83 M.J. 1, 5 (C.A.A.F. 2022) (quoting
United States v. Nerad, 69 M.J. 138, 147 (C.A.A.F. 2010)).
In our view, the ACCA’s opinion presents an open ques-
tion whether it improperly considered the evidence of JW’s
intoxication as proof of JW’s inability to consent and there-
fore proof of the absence of consent. To be clear, our hold-
ing—that subsection (b)(2)(A) and subsection (b)(3)(A) cre-
ate separate theories of liability—does not bar the trier of
6 Congress amended Article 67(c), UCMJ, in 2021, but that
amendment only applies to offenses that occurred on or after
January 1, 2021. William M. (Mac) Thornberry National Defense
Authorization Act for Fiscal Year 2021, Pub. L. No. 116-283,
§ 542(e)(2), 134 Stat. 3388, 3612-13. Because the alleged offense
in this case occurred in July 2020, the amended article does not
apply to this case. This opinion makes no comment on what
changes, if any, that amendment had on this Court’s authority
to review the factual sufficiency of offenses committed after Jan-
uary 1, 2021.
16
United States v. Mendoza, No. 23-0210/AR
Opinion of the Court
fact from considering evidence of the victim’s intoxication
when determining whether the victim consented. See Arti-
cle 120(g)(7)(C), UCMJ (“All the surrounding circum-
stances are to be considered in determining whether a per-
son gave consent.”). Nothing in the article bars the
Government from offering evidence of an alleged victim’s
intoxication to prove the absence of consent. 7 Conversely,
nothing bars the defense from offering the same evidence
to sow reasonable doubt. 8 But what the Government can-
not do is prove the absence of consent under Arti-
cle 120(b)(2)(A), UCMJ, by merely establishing that the
victim was too intoxicated to consent.
In this case, the Government argued that the evidence
established both that JW would not have consented to the
sexual act and that she was incapable of consenting to the
sexual act. The ACCA’s opinion affirming Appellant’s con-
viction did not specify whether the ACCA found that JW
was capable of consenting, stating only that the evidence
established that Appellant engaged in sexual intercourse
with a victim whom he knew to be “highly intoxicated.”
Mendoza, 2023 CCA LEXIS 198, at *10, 2023 WL 3540415,
7 In this case, the Government argues that evidence of a vic-
tim’s intoxication may be used to show that alcohol was used “to
reduce a victim’s resistance.” Brief of Appellee at 17 n.12, United
States v. Mendoza, No. 23-0210 (C.A.A.F. Dec. 26, 2023) (citation
omitted) (internal quotation marks omitted).
8 See United States v. Mendoza, __ M.J. __, __ (20) (C.A.A.F.
2024) (Sparks, J. concurring in part and dissenting in part and
in the judgment) (“Given the expert and lay testimony presented
at trial, evidence of [the victim’s] intoxication provides more ba-
sis for reasonable doubt than it does circumstantial evidence
that she did not consent.”); see also Christine Chambers Good-
man, Protecting the Party Girl: A New Approach for Evaluating
Intoxicated Consent, 2009 B.Y.U. L. Rev. 57, 76 (2009) (recogniz-
ing “that men as well as women can become more aggressive af-
ter consuming alcohol” (citation omitted)); Lori E. Shaw, Title
IX, Sexual Assault, and the Issue of Effective Consent: Blurred
Lines—When Should “Yes” Mean “No”?, 91 Ind. L.J. 1363, 1372
(2016) (noting that alcohol can lead to escalatory sexual contact
and an ultimate feeling that something went “terribly wrong”).
17
United States v. Mendoza, No. 23-0210/AR
Opinion of the Court
at *3. Recognizing the significance of our holding with re-
spect to Article 120(b)(2)(A), UCMJ, and the prominent
role intoxication evidence played in Appellant’s trial, we
believe that the ACCA should reconsider the factual and
legal sufficiency of Appellant’s conviction in light of this
opinion. Remanding to the ACCA will also give the parties
a full and fair opportunity to be heard on the legal and fac-
tual sufficiency of Appellant’s conviction under Arti-
cle 120(b)(2)(A), UCMJ.
We therefore set aside the ACCA’s decision and remand
the case for a new review under Article 66, UCMJ, 10
U.S.C. § 866 (2018). We express no view on whether the
evidence is factually or legally sufficient to support Appel-
lant’s conviction for a violation of Article 120(b)(2)(A),
UCMJ, and instead leave that question for the ACCA to
decide.
III. Conclusion
The decision of the United States Army Court of Crimi-
nal Appeals is set aside. The record of trial is returned to
the Judge Advocate General of the Army for remand to the
United States Army Court of Criminal Appeals for a new
factual and legal sufficiency review under Article 66,
UCMJ, 10 U.S.C. § 866 (2018).
18
United States v. Mendoza, No. 23-0210/AR
Judge SPARKS, concurring in part and dissenting in
part and in the judgment.
I join part II(B)(1) of the majority opinion because I
agree with the majority that Article 120(b)(2)(A), UCMJ,
and Article 120(b)(3)(A), UCMJ, create separate theories of
criminal liability. 10 U.S.C. § 920 (2018). The majority
acknowledges, correctly in my opinion, that “[t]he Govern-
ment’s approach—which conflated two different and incon-
sistent theories of criminal liability—raises significant due
process concerns.” United States v. Mendoza, __ M.J. __, __
(3) (C.A.A.F. 2024). And I am in complete agreement with
the majority that:
what the Government cannot do is charge one of-
fense under one factual theory and then argue a
different offense and a different factual theory at
trial. Doing so robs the defendant of his constitu-
tional “right to know what offense and under what
legal theory he will be tried and convicted.”
Id. at __ (13) (quoting United States v. Riggins, 75 M.J. 78,
83 (C.A.A.F. 2016)). The majority even goes so far as to ex-
plain that in this case “[t]he military judge may have con-
victed Appellant of sexual assault on the theory that JW
was incapable of consenting without the Government prov-
ing that Appellant knew or should have known that she
was incapable.” Id. at __ (12-13). Again, I agree.
It is in deciding where we go from this point that the
majority and I disagree. Instead of finding that the evi-
dence is legally insufficient or that Government violated
Appellant’s due process right to fair notice by arguing an
uncharged factual and legal theory of liability at trial and
testing the error for prejudice, the majority instead con-
cludes that the appropriate remedy in this case is to re-
mand the case to the United States Army Court of Criminal
Appeals (ACCA) for a new legal and factual sufficiency re-
view in which the ACCA can explain “how or why the evi-
dence of JW’s intoxication factored into its analysis.” Id. at
__ (3). With this I cannot agree.
First, I believe that the majority misconstrues Appel-
lant’s argument when it claims that he “argues that the ev-
idence was legally insufficient because the Government
United States v. Mendoza, No. 23-0210/AR
Judge SPARKS, concurring in part and dissenting
in part and in the judgment
relied solely on circumstantial evidence.” Id. at __ (6-7). Ap-
pellant does not argue that the Government can never
prove lack of consent by circumstantial evidence. Rather,
he argues that when the Government charges “without
consent” the burden of proof rests upon the Government to
present legally sufficient evidence that affirmatively points
to a lack of consent vice evidence that points to a lack of
capacity to consent—a separate factual and legal theory.
Brief of Appellant at 19-20, United States v. Mendoza, No.
23-0210 (C.A.A.F. Nov. 27, 2023). 1 In short, Appellant ar-
gues that the Government failed to present legally suffi-
cient evidence that the victim did not consent, despite the
evidence presented that she may have been incapable of
consent. He further argues that to affirm his conviction us-
ing evidence of an uncharged factual and legal theory
would violate his due process right to fair notice. I agree—
and I believe the majority does as well.
Nevertheless, the majority concludes that the correct
result here is to remand this case to the ACCA for a new
legal and factual sufficiency review in light of this opinion.
Just how the ACCA’s review must change is not entirely
clear. On the one hand, the majority states, “[u]nder the
actual charged offense, Article 120(b)(2)(A), UCMJ, it is not
clear how the evidence of JW’s intoxication factored into
either the decision of the military judge or the opinion of
the ACCA.” Mendoza, __ M.J. at __ (15). However, the ma-
jority later explains that its holding “does not bar the trier
of fact from considering evidence of the victim’s
1 Similarly, in dissenting from the ACCA opinion in this case,
Senior Judge Walker explained, “[t]he charged offense requires
the government to affirmatively prove the victim did not consent
and the government failed to satisfy its burden on this essential
element.” United States v. Mendoza, No. ARMY 20210647, 2023
CCA LEXIS 198, at *14, 2023 WL 3540415, at *5 (A. Ct. Crim.
App. May 8, 2023) (unpublished) (Walker, S.J., dissenting). Sen-
ior Judge Walker further explained, “[t]he government cannot
rely exclusively on the victim’s lack of memory due to intoxica-
tion as a proxy for satisfying its burden to prove a lack of con-
sent, which is what occurred in this case.” Id. at *15, 2023 WL
3540415, at *6.
2
United States v. Mendoza, No. 23-0210/AR
Judge SPARKS, concurring in part and dissenting
in part and in the judgment
intoxication when determining whether the victim con-
sented.” Id. at __ (16-17) (“All the surrounding circum-
stances are to be considered in determining whether a per-
son gave consent.” (internal quotation marks omitted)
(quoting Article 120(g)(7)(C))). To that end, the majority
does not appear concerned that the ACCA considered evi-
dence of JW’s intoxication, but only “whether it improperly
considered the evidence of JW’s intoxication as proof of
JW’s inability to consent and therefore proof of the absence
of consent.” Id. at (16) (emphasis added).
The majority’s focus on whether the ACCA properly con-
sidered evidence of JW’s intoxication in determining
whether the Government presented sufficient evidence to
convict Appellant of the charged crime ignores the real is-
sue in this case—the Government’s violation of Appellant’s
due process right to fair notice by charging Appellant with
sexual assault without consent, but arguing at trial that he
was guilty because JW was incapable of consent. This does
not merely raise serious due process concerns. This is a vi-
olation of Appellant’s due process right to fair notice. No
explanation from the ACCA about how it considered the
evidence of JW’s intoxication will change the fact that Ap-
pellant’s due process rights were violated at trial, long be-
fore this case reached the ACCA.
For the reasons explained below, I believe that the only
options in this case are for this Court to find the evidence
legally insufficient or, if the evidence is legally sufficient,
to find that the Government violated Appellant’s due pro-
cess right to fair notice. Both routes require reversal. Nei-
ther leads to a second legal and factual sufficiency review
by the ACCA. After reviewing the record in this case, I find
the evidence is legally insufficient to affirm Appellant’s
conviction and would dismiss this case with prejudice. I
therefore respectfully dissent.
I. Background
Given the nature of legal sufficiency review and the low
bar to uphold a conviction, I believe it is necessary to ex-
plain the facts in detail. I apologize for restating facts al-
ready addressed by the majority, but I believe it is
3
United States v. Mendoza, No. 23-0210/AR
Judge SPARKS, concurring in part and dissenting
in part and in the judgment
necessary to paint the complete picture of this case before
reviewing the legal question at issue.
Appellant and JW were both stationed at Camp Casey,
in South Korea. On the evening of July 11, 2020, JW went
out to dinner with friends. She testified about what she re-
members from that night after getting back from dinner as
follows: “I remember getting back to the barracks, there’s
a whole bunch of people out front drinking and whatnot,
and I remember seeing Sergeant [B] from S2, and he had a
bottle of vodka. I remember drinking that and that’s the
last thing I remember from that night.”
She testified that her final memories from that evening
were around 11:00 p.m. The next thing she remembered
was waking up to a knock on her barrack’s room door the
following morning.
It is undisputed that JW was intoxicated that evening.
It is also undisputed that JW has no memory of having sex
with Appellant and could not testify whether she consented
to having sex with Appellant. Instead, her testimony con-
sisted of claims that she would not have consented to sex
with Appellant under the circumstances, including her lack
of a social relationship with Appellant and the fact that she
was menstruating at the time.
Video evidence presented at trial clearly shows Appel-
lant and JW entering Appellant’s room at approximately
2:08 a.m. on July 12, 2020. Before entering the room, JW
appeared to be intoxicated, but seemed aware of what was
happening and was able to walk on her own. As they ap-
proached Appellant’s room, Appellant touched JW’s crotch.
This touching constituted the basis for the abusive sexual
contact specification of which Appellant was found not
guilty.
Appellant and JW remained in the room for slightly
more than one hour, leaving the room at 3:11 a.m. At that
point, JW was leaning on Appellant as they walked back to
her room. While JW was not walking on her own, she was
walking with Appellant’s assistance and not simply being
carried by Appellant, who is smaller in stature than JW.
4
United States v. Mendoza, No. 23-0210/AR
Judge SPARKS, concurring in part and dissenting
in part and in the judgment
JW awoke the following morning to a knock on her door.
She answered the door and was greeted by Appellant, who
returned her shoes to her. According to JW, she did not rec-
ognize Appellant and had no prior social interaction with
him. She went back to sleep but awoke again to Appellant
knocking. This time he asked if she was sure she was okay.
It was at this point that JW realized she was no longer
wearing her underwear from the previous night, despite
still wearing her pants from the previous night. 2 She went
to the bathroom and discovered that her tampon had been
pushed all the way inside her body. JW began to panic and
eventually went to the hospital and underwent a sexual as-
sault forensic examination, which included obtaining DNA
swabs from her vagina. According to her testimony at trial,
JW “filed a report just to figure out what had happened.”
The DNA test confirmed that she and Appellant engaged
in sexual intercourse.
A. Appellant’s Confession
Appellant was interviewed by Army Criminal Investi-
gation Division Special Agent (SA) Dereck Williams. SA
Williams first spoke to Appellant when he was canvassing
the barracks. During this informal interview in the parking
lot, Appellant told SA Williams that JW had been in his
room the prior night. After later identifying Appellant as a
suspect, SA Williams formally interrogated Appellant in a
recorded interview.
During the interview Appellant admitted that JW was
extremely intoxicated, but he initially denied having sex-
ual relations with her. After being confronted with the
2 JW admitted at trial that the sports bra and underwear she
had been wearing the previous night were located on the floor of
her room. JW’s testimony also suggests that she had been wear-
ing a pad rather than a tampon on the night of the assault, be-
cause she describes the photo showing her underwear as “that is
a photo of the underwear I was wearing with the pad I had been
wearing.” JW also admitted that she could not recall when she
put her tampon in, claiming “it would have been the day prior,”
which suggests it happened during the period of time for which
she has no memory.
5
United States v. Mendoza, No. 23-0210/AR
Judge SPARKS, concurring in part and dissenting
in part and in the judgment
CCTV footage of them entering his room, Appellant admit-
ted that they had sex, but claimed it was consensual. He
then admitted that he knew she was too intoxicated to con-
sent and made a written confession. In his written confes-
sion, Appellant explained that he and JW began to flirt
while they were drinking in the day room:
She leaned in and was whispering in my ear and
kissing my neck and I pulled away initially how-
ever, became overwhelmed with emotion to give in
and ignore all the signs and my own words [warn-
ing SGT RC that she was intoxicated]. I invited
her down to my room and she followed in the pro-
cess [I] groped her groin and thigh in the hallway.
When we came into the room she initially sat on
the bed and I the couch after a bit of conversation
I got up to get a beer and we kissed, while kissing
I asked her “is this okay?” she replied “show me
what you got.” We both began to remove clothing
individually and I proceeded to lie down on the
bed, she proceeded to give me oral sex and then I
asked her to lie on her back. I then asked her to
get ontop [sic] of me, then I asked her to once
again lie on her back. . . . She then went into the
bathroom and closed the door and turned the
shower on while she went to throw up. She did not
throw up and [I] knocked on the door asking if she
was ok twice both time [sic] she said she was ok.
She opened the door the second time and fell back
onto the toilet and I had to help her up, she then
fell back again and I then helped her up out of the
bathroom and onto my sink.
In response to specific questions from SA Williams, Appel-
lant admitted that JW was “[o]verly intoxicated,” that she
was not capable of giving consent when they had sex, and
that he knew “it was wrong to conduct sex acts on SPC [JW]
when she was incapable of giving consent.”
B. The Charge
The Government charged Appellant with committing a
sexual act upon JW, by penetrating her vulva with his pe-
nis, without her consent, in violation of Article 120(b)(2)(A),
UCMJ. Appellant was not charged with sexual assault
while the victim was incapable of consenting due to
6
United States v. Mendoza, No. 23-0210/AR
Judge SPARKS, concurring in part and dissenting
in part and in the judgment
impairment by an intoxicant, in violation of Article
120(b)(3)(A), UCMJ. 3
C. Trial
At trial, the Government argued that the evidence
would show that Appellant committed the charged sexual
acts without JW’s consent. JW testified that she did not re-
member having sex with Appellant, but that she would
never have had sex while on her period, nor would she have
had sex with her tampon in.
The Government presented expert testimony from Dr.
RW, an expert in forensic biology with an emphasis on the
effects of alcohol on behavior. Dr. RW testified that a
“blackout” from drinking can involve either partial or total
memory loss for a portion of the drinking episode. He ex-
plained that blackouts typically occur at a blood alcohol
content (B.A.C.) of .14 of higher, with total memory loss
typically occurring at .2 or higher. Dr. RW estimated the
victim’s B.A.C. on the night in question was between .175
and .19.
Additionally, Dr. RW testified that individuals in a
state of blackout can still engage in voluntary behavior. Dr.
RW explained that after a blackout individuals attempt to
piece together what happened during that period of time:
And oftentimes they’re doing that based on their
own personal values. So oftentimes it’s, you know,
I typically do this, but, you know, so that must be
what happened kind of situation. So that’s how a
person often tries to put together the pieces of the
memory. And then oftentimes they may find out
from another person, when finding out what ex-
actly happened during that memory, that it might
not be what they expected because of alcohol.
Dr. RW also explained that “as the blood alcohol level in-
creases, a person may become more reckless, acts in
3 The Government also charged Appellant with one specifi-
cation of abusive sexual contact without consent, in violation of
Article 120(d), UCMJ, for touching JW’s groin without her con-
sent. Appellant was found not guilty of that specification.
7
United States v. Mendoza, No. 23-0210/AR
Judge SPARKS, concurring in part and dissenting
in part and in the judgment
sexually provocative ways or aggressive, and it also im-
pairs a person’s reaction time, comprehension, and motor
movements.”
Dr. RW viewed the CCTV footage in this case and com-
mented upon JW’s demeanor before and after she entered
Appellant’s room:
So in reviewing the CCTV footage, I noticed
there’s a significant difference when [JW] left her
room, I guess it was at about 1:47 and started to
walk with—to [Appellant’s] actual room. She was
much more—she didn’t appear to have a solid gait.
So she had an uneven gait. She seemed a little bit
staggery, but she was in stark contrast to what
you saw once she left [Appellant’s room], where
she appeared to be much more sedated, where she
was hanging on him and kind of being dragged
along a little bit more. So that was just a stark
difference between the two. And with that, it just
made me think, you know, it’s very much like the
biphasic effects of alcohol . . . we call it the bipha-
sic effects because you actually see a rise in the
B.A.C., and during that rise, that’s usually called
the ascending limb, that’s more stimulating.
That’s the more outgoing, the more talkative. And
each person’s slope can be different depending on
what they’re drinking or their weight. A lot of dif-
ferent factors.
And then once a person stops drinking, there’s
about 30 to 45 minutes where the alcohol is being
absorbed just to a person to reach their peak.
That’s their peak B.A.C. And then at that point,
the body starts to, you know—really the liver,
starts to process and get rid of all that alcohol in
the system. And that’s when you start to see some
of those withdrawal. Essentially, your body’s go-
ing into alcohol withdrawal, the sedating effects.
So you see a lot more of the person nodding off. A
person really, really just looking sedated com-
pared to what they were like when they were ac-
tually consuming alcohol.
Finally, Dr. RW testified that JW had Benadryl in her
system, which could explain her steep decline from the
point of entering Appellant’s room to the time she left, if
8
United States v. Mendoza, No. 23-0210/AR
Judge SPARKS, concurring in part and dissenting
in part and in the judgment
she took it during the time she was in her own room around
1:45 a.m.
D. Government’s Closing Argument
During closing argument trial counsel argued, “[w]ith
regard to consent, as you heard, [the victim] would not con-
sent. She could not. She did not consent.” (Emphasis
added.) Trial counsel also argued, the victim “testified that
she would not consent under those circumstances.” As trial
counsel continued, he seemed to conflate blacking out with
an inability to consent, claiming, JW “could not consent un-
der the circumstances. As she testified, she blacked out be-
fore 0145, while she was still outside, before Specialist [L]
went to retrieve her.”
When he discussed the legal definition of consent, trial
counsel focused on the definition of “competent person” and
all the evidence the military judge should consider to con-
clude that JW was not competent to consent to the sexual
acts in question. “In other words,” he concluded, “every eye-
witness confirmed that Specialist [JW] was [sic] clearly—
met the definition of an incompetent person before the ac-
cused took her to his room. And most importantly is that
the accused knew it too.”
For all intents and purposes, the Government’s argu-
ment at trial was that JW did not consent to the charged
sexual acts because she was not competent to consent given
her state of intoxication. The Government never argued,
nor did JW testify, that JW ever gave any indication to Ap-
pellant that her participation in the sexual acts was not
voluntary. Rather, the Government’s sole theory of the case
was that JW “could not consent under the circumstances.”
II. Discussion
A. Standard of Review
This Court reviews questions of legal sufficiency de
novo. United States v. King, 78 M.J. 218, 221 (C.A.A.F.
2019). “ ‘The test for legal sufficiency is whether, after
viewing the evidence in the light most favorable to the pros-
ecution, any rational trier of fact could have found the
9
United States v. Mendoza, No. 23-0210/AR
Judge SPARKS, concurring in part and dissenting
in part and in the judgment
essential elements of the crime beyond a reasonable
doubt.’ ” 4 United States v. Gutierrez, 73 M.J. 172, 175
(C.A.A.F. 2014) (quoting United States v. Bennitt, 72 M.J.
266, 268 (C.A.A.F. 2013)). “This legal sufficiency assess-
ment draw[s] every reasonable inference from the evidence
of record in favor of the prosecution.” King, 78 M.J. at 221
(alteration in original) (internal quotation marks omitted)
(quoting United States v. Robinson, 77 M.J. 294, 298
(C.A.A.F. 2018)). As such, “[t]he standard for legal suffi-
ciency involves a very low threshold to sustain a convic-
tion.” Id. (quoting United States v. Navrestad, 66 M.J. 262,
269 (C.A.A.F. 2008) (Effron, C.J., joined by Stucky, J., dis-
senting)). “The criterion thus impinges upon ‘jury’ discre-
tion only to the extent necessary to guarantee the funda-
mental protection of due process of law.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979).
In order to meet its low burden of establishing legal
sufficiency in this case, the Government relies on evidence
that JW was incapable of consenting to prove that she did
not consent. As the majority opinion acknowledges, “there
is no direct evidence that Appellant engaged in sexual in-
tercourse ‘without the consent’ of JW.” Mendoza, __ M.J. at
__ (13-14). Nonetheless, the Government interprets the
theories of sexual assault without consent and sexual as-
sault while the victim is incapable of consent under Article
4 The majority claims that this case “departs from the usual
‘reasonable trier of fact’ analysis because Appellant challenges
the legal sufficiency of his sexual assault conviction on two unu-
sual grounds.” Mendoza, __ M.J. at __ (6). However, the majority
fails to explain what different standard we must now use. I dis-
agree on this point and note that Appellant’s arguments are not
so unusual. Appellant simply argues that the evidence used by
the Government in this case is not legally relevant because it
supports an uncharged theory of liability and is therefore insuf-
ficient to support a finding of guilty. The fact that we must de-
termine whether Appellant is correct that the Government can-
not use evidence of an uncharged legal theory to prove a charged
legal theory does not change the ultimate question of whether
the Government did, in fact, present legally sufficient evidence
for a rational trier of fact to find every element of the charge
beyond a reasonable doubt.
10
United States v. Mendoza, No. 23-0210/AR
Judge SPARKS, concurring in part and dissenting
in part and in the judgment
120 as overlapping. Like the majority, I reject this inter-
pretation for a number of reasons.
First, the Government’s argument that proof of incapac-
ity necessarily means proof of a lack of consent violates the
statutory interpretation canon against surplusage by ren-
dering all theories of sexual assault other than without
consent superfluous. Second, contrary to the Government’s
argument, the legal theories of lack of consent and incapac-
ity are legally contradictory rather than overlapping. And
third, the Government violates a defendant’s due process
right to fair notice when it convicts him using a legal theory
that was not charged.
B. The Government Argued at Trial That the Victim
Was Incapable of Consenting
In this case, Appellant argues that there is no evidence
in the record that JW did not consent to the sexual activity.
On the other hand, the Government argues that “there was
ample direct evidence that [JW] was incapable of consent
and strong circumstantial evidence that [JW] did not con-
sent.” Brief of Appellee at 11, United States v. Mendoza,
No. 23-0210 (C.A.A.F. Dec. 26, 2023). However, as ex-
plained above, the Government’s argument to this Court
that there is strong circumstantial evidence that JW did
not consent was never made at trial. Rather, the Govern-
ment’s entire argument at trial was that JW was incompe-
tent and therefore could not consent to sex.
The Government now argues to this Court that “evi-
dence that a victim could not consent, is also evidence that
[she] did not consent.” Id. at 8. Therefore, we must deter-
mine whether evidence of a victim’s incompetence neces-
sarily proves a lack of consent in the context of Article
120(b)(2)(A) before we can determine whether the Govern-
ment presented enough evidence to reach the low threshold
of legal sufficiency for a charge of sexual assault without
consent. For the reasons explained below, I believe that
that evidence of a victim’s incompetence is not evidence of
a lack of consent.
11
United States v. Mendoza, No. 23-0210/AR
Judge SPARKS, concurring in part and dissenting
in part and in the judgment
C. Canon Against Surplusage
I agree with the majority that the Government’s inter-
pretation of Article 120, UCMJ, violates the canon against
surplusage. While I wish to avoid repeating the majority
opinion’s analysis, I still find it necessary to examine the
statutory scheme of Article 120, UCMJ, before moving on
to the next portion of my opinion in order to be clear about
what relevance, if any, evidence of JW’s intoxication has to
proving a charge of without consent.
Congress has articulated multiple legal theories of sex-
ual assault. These can be broken down into three basic cat-
egories: (1) sexual assault when a victim is physically ca-
pable of consent but not legally capable of consent due to
circumstances created by the accused; 5 (2) sexual assault
when the victim is capable of consenting and does not con-
sent; 6 and (3) sexual assault when the victim is physically
incapable of consent and that condition is known or reason-
ably should be known by the accused. 7
5 Article 120(b)(1)(A), UCMJ—“threatening or placing that
other person in fear;” Article 120(b)(1)(B), UCMJ—“making a
false representation that the sexual act serves a professional
purpose;” or Article 120(b)(1)(C), UCMJ—“inducing a belief by
any artifice, pretense, or concealment that the person is another
person.”
6 Article 120(b)(2)(A), UCMJ—“without . . . consent.”
7 Article 120(b)(2)(B), UCMJ—“when the person knows or
reasonably should know that the other person is asleep, uncon-
scious, or otherwise unaware”; Article 120(b)(3)—
commits a sexual act upon another person when
the other person is incapable of consenting to the
sexual act due to—
(A) impairment by any drug, intoxicant, or
other similar substance, and that condition
is known or reasonably should be known by
the person; or
(B) a mental disease or defect, or physical
disability, and that condition is known or
reasonably should be known by the person.
12
United States v. Mendoza, No. 23-0210/AR
Judge SPARKS, concurring in part and dissenting
in part and in the judgment
According to the Government’s interpretation of Article
120, all theories of sexual assault committed when the vic-
tim is legally or physically incapable of consent could be
charged under the single theory that the victim did not con-
sent. If, as the Government argues, evidence of an inability
to consent is evidence of a lack of consent, the government
could prove a lack of consent by proving that the victim was
legally or physically incapable of consenting to the alleged
conduct. Were this the case, there would be no need for the
government to ever charge sexual assault when a victim is
incapable of consent because it could simply prove a charge
of sexual assault without consent using evidence of legal or
physical incapacity.
Because the Government’s interpretation would make
every part of the statute articulating a theory of criminality
except “without consent” unnecessary, the majority cor-
rectly rejects this interpretation.
Furthermore, as the majority opinion points out, allow-
ing the government to charge sexual assault without con-
sent and to argue an incapacity theory would allow the gov-
ernment to avoid the obligation of proving beyond a
reasonable doubt that the victim was actually incapable of
consenting, and that the accused knew or reasonably
should have known of the victim’s incapacity, which I will
address in the next section.
D. Lack of Consent and Incapacity Are Contradictory
Theories of Criminality
The majority and I agree that Articles 120(b)(2)(A) and
120(b)(3)(A) present distinct factual and legal theories of
sexual assault. However, as the majority points out, “noth-
ing prevents the Government from charging a defendant
with both offenses under inconsistent factual theories and
allowing the trier-of-fact to determine whether the victim
was capable or incapable of consenting.” Mendoza, __ M.J.
at __ (13) (citing United States v. Elespuru, 73 M.J. 326,
330 (C.A.A.F. 2014)). Therefore, I find it necessary to ex-
amine the distinctions between these separate factual and
legal theories of liability to determine the legal and logical
relevance of the evidence presented in this case. As the
13
United States v. Mendoza, No. 23-0210/AR
Judge SPARKS, concurring in part and dissenting
in part and in the judgment
majority points out, the majority’s holding “does not bar the
trier of fact from considering evidence of the victim’s intox-
ication when determining whether the victim consented.”
Id. at __ (16-17) (citing Article 120(g)(7)(C), UCMJ). Given
this permissible use of circumstantial evidence, we must
examine whether direct evidence of JW’s intoxication con-
stitutes logically and legally relevant circumstantial evi-
dence that JW did not, in fact, consent to the sexual activity
in this case.
To prove a charge of sexual assault without consent the
government is required to prove that (1) the accused com-
mitted a sexual act upon the victim; and (2) the victim did
not consent to the sexual act. Manual for Courts-Martial,
United States pt. IV, para. 60.b.(2)(d) (2019 ed.) (MCM). In
order to prove a charge of sexual assault while the victim
is incapable of consent the government must prove that (1)
the accused committed a sexual act upon the victim; (2)
while the victim is incapable of consenting; and (3) the ac-
cused knew or reasonably should have known the victim
was incapable of consenting. MCM pt. IV, para. 60.b.(2)(e).
According to Article 120(g)(7), UCMJ:
(A) The term “consent” means a freely given
agreement to the conduct at issue by a competent
person. An expression of lack of consent through
words or conduct means there is no consent. Lack
of verbal or physical resistance does not constitute
consent. Submission resulting from the use of
force, threat of force, or placing another person in
fear also does not constitute consent. A current or
previous dating or social or sexual relationship by
itself or the manner of dress of the person involved
with the accused in the conduct at issue does not
constitute consent.
(B) A sleeping, unconscious, or incompetent
person cannot consent. A person cannot consent to
force causing or likely to cause death or grievous
bodily harm or to being rendered unconscious. A
person cannot consent while under threat or in
fear or under the circumstances described in sub-
paragraph (B) or (C) or subsection (b)(1).
14
United States v. Mendoza, No. 23-0210/AR
Judge SPARKS, concurring in part and dissenting
in part and in the judgment
(C) All the surrounding circumstances are to
be considered in determining whether a person
gave consent.
Furthermore, the term “incapable of consenting” means the
person is:
(A) incapable of appraising the nature of the
conduct at issue; or
(B) physically incapable of declining participa-
tion in, or communicating unwillingness to engage
in, the sexual act at issue.
Article 120(g)(8), UCMJ.
In his articulation of the elements of these offenses, the
President has explained that legal incapacity offenses re-
quire proof of the specific circumstances (e.g., placing the
victim in fear) that result in the legal incapacity to consent.
MCM pt. IV, para. 60.b.(2)(a)-(c). He has also explained
that physical incapacity offenses require specific proof that
the victim was incapable of consent. MCM pt. IV, para.
60.b.(2)(e)-(f). In contrast, a charge of sexual assault with-
out consent does not require the government to prove that
the victim was capable of consenting. MCM pt. IV, para.
60.b.(2)(d). The Government acknowledges this in its brief
when it admits “the government had no requirement to
prove that the victim was competent; only that she did not,
in fact, consent.” Brief of Appellee at 28, United States v.
Mendoza, No. 23-0210 (C.A.A.F. Dec. 26, 2023) (alterations
in original removed) (internal quotation marks omitted)
(quoting United States v. Motsenbocker, No. 201600285,
2017 CCA LEXIS 539, *17 (N-M. Ct. Crim. App. Aug 10,
2017) (unpublished)).
While it may at first blush appear logical to argue that
proving the victim was incapable of consenting necessarily
proves that the victim did not consent—or that evidence of
JW’s intoxication constitutes circumstantial evidence that
she did not consent—we need look no further than the ma-
jority’s explanation of the two offenses to reject this argu-
ment. “Article 120(b)(2)(A), UCMJ, criminalizes engaging
in a sexual act with a person capable of consenting who did
not consent, and Article 120(b)(3)(A), UCMJ, criminalizes
15
United States v. Mendoza, No. 23-0210/AR
Judge SPARKS, concurring in part and dissenting
in part and in the judgment
engaging in a sexual act with a person who is incapable of
consenting . . . .” Mendoza, __ M.J. at __ (3). If this is so,
and I believe it is, then evidence establishing the victim’s
incapacity necessarily disproves an allegation of sexual as-
sault without consent. Thus, a closer look reveals that
these two theories of criminality are legally contradictory
rather than overlapping. Indeed, if Articles 120(b)(2)(A)
and 120(b)(3)(A) constitute different and inconsistent the-
ories of liability, as the majority claims, they must be dif-
ferent in the proof required and not in name only if the
canon against surplusage is to mean anything.
Any incapacity theory of sexual assault requires the
government to prove beyond a reasonable doubt the vic-
tim’s legal or physical incapacity. When charged under an
incapacity theory the accused could offer proof of the vic-
tim’s competence as a defense. For example, in Riggins, the
appellant was able to disprove what the government
charged in the original sexual assault specifications “by
demonstrating that, at the time of the sexual activity, [the
victim] was not in fear.” 75 M.J. at 82. On appeal, this
Court explained that incapacity and lack of consent are dif-
ferent legal theories of liability because “the fact that the
Government was required to prove a set of facts that re-
sulted in [the victim]’s legal inability to consent was not the
equivalent of the Government bearing the affirmative re-
sponsibility to prove that [the victim] did not, in fact, con-
sent.” Id. at 84.
In contrast, as the Government acknowledges, when it
charges sexual assault without consent it has no obligation
to prove that the victim was competent. Unlike an incapac-
ity theory of criminality, evidence of the victim’s compe-
tency would offer no defense under a without consent the-
ory. In other words, a charge of sexual assault without
consent is equivalent to the government stipulating that
the victim was competent to consent under the circum-
stances alleged. This is the root of the due process problem
in this case. The Government charged the only theory of
sexual assault for which proof of the victim’s competency to
consent is not a defense, then argued at trial that the vic-
tim was incapable of consenting.
16
United States v. Mendoza, No. 23-0210/AR
Judge SPARKS, concurring in part and dissenting
in part and in the judgment
Consistent with the Government’s acknowledgment
that a charge of sexual assault without consent does not
require the Government to prove the victim’s competency,
it seems apparent to me that the Government would be un-
able to charge both theories of sexual assault—without
consent and incapacity—in the alternative without neces-
sarily disproving one charge at trial in order to prove the
other. This is precisely what Appellant is getting at when
he argues that the government is required to present direct
evidence of a lack of consent in order to prove sexual as-
sault under Article 120(b)(2)(A). If the government seeks to
meet its burden using circumstantial evidence, it is the
government’s burden to demonstrate the logical relevance
of such evidence to prove an element of the charge—e.g.,
that evidence of intoxication makes it less likely that the
victim would consent.
The majority alludes to the long-standing practice of al-
lowing the government to plead in the alternative to accom-
modate any contingencies of proof. Mendoza, __ M.J. at __
(13) (citing Elespuru, 73 M.J. at 330). 8 On this point, I
would simply provide a cautionary note to military judges.
Should they encounter such pleadings, at the close of the
evidence they should make a careful determination as to
which offense is supported by the evidence and which one
may not be supported. Then only one of these contingent
offenses should be sent to the trier of fact. After all, “[i]t is
the Government’s responsibility to determine what offense
to bring against an accused. Aware of the evidence in its
possession, the Government is presumably cognizant of
which offenses are supported by the evidence and which
are not.” United States v. Morton, 69 M.J. 12, 16 (C.A.A.F.
2010).
Having explained the distinct and inconsistent nature
of without consent and incapacity theories of liability, I
8 In Elespuru, this Court evaluated the appellant’s argument
that his convictions for abusive sexual contact and wrongful
sexual contact were multiplicious, not whether conflicting
theories of liability violate the due process right to fair notice. 73
M.J. at 327.
17
United States v. Mendoza, No. 23-0210/AR
Judge SPARKS, concurring in part and dissenting
in part and in the judgment
now turn to the evidence in this case and examine whether
the Government presented legally sufficient evidence of
JW’s lack of consent.
E. The Government Failed to Prove Sexual Assault
Without Consent
First, it has been well established that the Government
argued at trial and on appeal that JW was legally incapable
of consent on the night in question. If that is the case, the
Government is legally incapable of proving Appellant’s
guilt under Article 120(b)(2)(A), UCMJ. However, despite
the Government’s argument on this point, no court has
found as a matter of law that JW was incapable of consent.
Therefore, we must now examine whether the evidence
presented at trial is sufficient to prove that JW did not, in
fact, consent.
It bears restating that there is no direct evidence that
JW did not consent to the sexual activity that took place.
The Government argues, however, that there is “strong cir-
cumstantial evidence that [JW] did not consent.” Brief of
Appellee at 11, United States v. Mendoza, No. 23-0210
(C.A.A.F. Dec. 26, 2023). Similarly, the majority, despite
not reaching the question of legal sufficiency, claims that
there is “significant circumstantial evidence on this point.”
Mendoza, __ M.J. at __ (13-14). According to the majority:
This evidence includes: (1) testimony that JW had
no prior relationship with Appellant; (2)
testimony that JW would never have sex while on
her period; (3) testimony that JW would not have
pushed a tampon so far inside of herself; (4)
testimony that JW made a morning-after report to
the CQ desk after she realized something was
wrong; (5) testimony that JW was upset; (6)
testimony that Appellant initially denied that he
had engaged in any sexual acts with JW; and (7)
testimony that JW locked herself in Appellant’s
bathroom.
Id. at __ (14 n.3).
In making this assertion, the majority neglects im-
portant facts and makes much of evidence that is subject to
multiple explanations. For example, Appellant’s initial
18
United States v. Mendoza, No. 23-0210/AR
Judge SPARKS, concurring in part and dissenting
in part and in the judgment
denial of engaging in sexual acts with JW could be inter-
preted as evidence of consciousness of guilt for engaging in
sex with someone he believed was not capable of consent-
ing—as he explained in his confession and the Government
argued at trial—or it could be interpreted as evidence that
he did not want to confess to extramarital sexual conduct.
But it is not enough for the Government to prove that Ap-
pellant had a guilty conscience, it must prove the specific
elements of the crime for which Appellant feels guilty.
Appellant did admit that he knew JW was incapable of
consenting. But at no point during the interview was Ap-
pellant provided with a legal definition of incapacity. While
Appellant’s confession provides strong evidence that JW
may have been too intoxicated to consent, it does not estab-
lish that she did not consent. Indeed, his confession de-
scribes JW as actively engaging in the sexual acts, rather
than being unable to appreciate the nature of the conduct
or unable to decline participation therein. See Article
120(g)(7) (“ ‘incapable of consenting’ means the person is
(A) incapable of appraising the nature of the conduct at is-
sue; or (B) physically incapable of declining participation
in, or communicating unwillingness to engage in, the sex-
ual act at issue”).
Similarly, evidence that JW and Appellant lacked a
prior relationship, testimony from JW that she would never
have sex on her period and would never push a tampon so
far inside herself, and evidence that JW seemed upset all
ignore the overwhelming evidence that JW was intoxicated
on the night in question and acting in ways uncharacteris-
tic of her normal behavior.
Nor does JW’s immediate report provide any evidence
that JW did not consent to the sexual acts in question. Ra-
ther than reporting a sexual assault, JW testified at trial
that she “filed a report just to figure out what had hap-
pened.” It is precisely because of JW’s inability to testify
that she was sexually assaulted that the Government must
prove its case by circumstantial evidence.
The Government argues that the JW’s intoxication is
simply part of “all [the] surrounding circumstances [that]
19
United States v. Mendoza, No. 23-0210/AR
Judge SPARKS, concurring in part and dissenting
in part and in the judgment
are to be considered in determining whether a person gave
consent.” Brief of Appellee at 17, United States v. Mendoza,
No. 23-0210 (C.A.A.F. Dec. 26, 2023) (internal quotation
marks omitted) (quoting Article 120(g)(8)). To that end, the
ACCA pointed to “the victim’s high level of intoxication” as
evidence supporting a finding of guilty. Mendoza, 2023
CCA LEXIS 198, at *8, 2023 WL 3540415, at *3. However,
this conclusion is at best questionable and at worst contra-
dicted by the expert testimony presented in this case. Spe-
cifically, the Government’s expert witness Dr. RW testified
that “as the blood alcohol level increases, a person may be-
come more reckless, acts in sexually provocative ways or
aggressive, and it also impairs a person’s reaction time,
comprehension, and motor movements.” Dr. RW did not
testify that an increased B.A.C. makes a person less likely
to consent to sexual activity.
Dr. RW also estimated that JW’s B.A.C. was between
.175 to .19, which would result in her not acting like her
“usual self.” Indeed, Sergeant RC testified that on the night
in question JW “wasn’t acting like herself. Most of the en-
counters I’ve had with her she’s more of just kind of an in-
troverted, more to herself type person. This time she was
more outgoing [and] started becoming flirtatious in a way.”
Given the expert and lay testimony presented at trial, evi-
dence of JW’s intoxication provides more basis for reason-
able doubt than it does circumstantial evidence that she
did not consent.
While the Government points to testimony from JW
that she would not have consented under these circum-
stances, the video evidence in this case shows she and Ap-
pellant entered his room together while they appear to be
flirting, both intoxicated. In fact, the military judge—the
sole fact-finder in this case—found Appellant not guilty of
the charge of abusive sexual contact alleged to have oc-
curred just before they entered Appellant’s barracks room.
The CCTV footage and Appellant’s admissions leave no
doubt that the touching took place, so we are left to con-
clude that the military judge did not believe JW did not
consent to the touching in the hallway, nor that she was
20
United States v. Mendoza, No. 23-0210/AR
Judge SPARKS, concurring in part and dissenting
in part and in the judgment
incapable of consenting as she entered Appellant’s room (as
the Government argued at trial).
Despite this finding by the military judge that neces-
sarily finds that JW consented to sexual contact moments
before entering Appellant’s room, the Government would
have us conclude that the evidence is sufficient for a ra-
tional trier of fact to conclude beyond a reasonable doubt
that she did not consent to sexual acts that took place at
some point after entering the room. Given JW’s lack of
memory regarding whether or not she consented, the ex-
pert testimony from Dr. RW regarding the effects of alcohol
and JW’s level of intoxication, and the substance of Appel-
lant’s confession, I cannot conclude that the evidence sup-
ports a finding that JW did not consent.
In sum, after viewing the evidence in the light most fa-
vorable to the prosecution, I cannot conclude that any ra-
tional trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.
III. Conclusion
Without consent and incapacity to consent are two sep-
arate theories of criminal liability. The Government made
the decision to charge Appellant with sexual assault with-
out consent and therefore could not prove Appellant’s guilt
by proving that JW was incapable of consent. The fact of
the matter is the Government charged Appellant with the
wrong offense and proceeded to trial with evidence that
supported a different uncharged offense. A due process vi-
olation occurred at trial that a remand to the lower court
simply cannot cure. Further, having reviewed the record in
this case, I cannot conclude that a rationale trier of fact
could be satisfied beyond a reasonable doubt that JW did
not consent to the sexual acts that took place after she en-
tered Appellant’s room.
For these reasons, I respectfully dissent from the deci-
sion to remand and would dismiss Appellant’s conviction
with prejudice.
21
United States v. Mendoza, No. 23-0210/AR
Judge MAGGS, concurring in part and dissenting in
part.
I concur with the Court’s interpretation of Arti-
cle 120(b)(2)(A), Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 920(b)(2)(A) (2018). I disagree, however, with
one aspect of the Court’s disposition of this appeal. Specif-
ically, while the Court remands the case for both a new le-
gal and factual sufficiency review, I would hold that the ev-
idence is legally sufficient and remand solely for a new
factual sufficiency review. I therefore respectfully concur in
part and dissent in part.
I. Background
In the supplement to his petition for review, Appellant
asked this Court to decide “[w]hether [his] conviction for
sexual assault without consent should be reversed?” He
asserted that this Court should set aside the decision of the
United States Army Court of Criminal Appeals (ACCA)
because the evidence was legally insufficient. In the
alternative, Appellant contended that allowing his
conviction to stand based on the evidence admitted at trial
would amount to a constructive amendment of the charged
offense.
This Court granted review of a modified version of the
question that Appellant presented in his supplement,
namely, “[w]hether Appellant’s conviction for sexual as-
sault without consent was legally sufficient.” United States
v. Mendoza, 84 M.J. 105 (C.A.A.F. 2023) (order granting
review). The parties’ briefs, accordingly, focus on the legal
sufficiency of the evidence of lack of consent under Article
120(b)(2)(A), UCMJ. The Court, however, does not answer
the granted question but instead remands the case so that
the ACCA may perform both a new legal sufficiency review
and a new factual sufficiency review.
II. Legal Sufficiency
Questions of legal sufficiency are reviewed de novo.
United States v. Brown, 84 M.J. 124, 127 (C.A.A.F. 2024)
(citing United States v. Wilson, 76 M.J. 4, 6 (C.A.A.F.
2017)). Accordingly, this Court has the ability and author-
ity to decide whether the evidence is legally sufficient
United States v. Mendoza, No. 23-0210/AR
Judge MAGGS, concurring in part and dissenting in part
without any further review by the ACCA. I see no pruden-
tial reason not to do so in this case given that we specified
the issue of legal sufficiency and that the parties thor-
oughly briefed this issue.
As the Court correctly explains, the bar for finding the
evidence to be legally sufficient is “very low.” United States
v. King, 78 M.J. 218, 221 (C.A.A.F. 2019) (internal quota-
tion marks omitted) (citation omitted). We must consider
“whether, after viewing the evidence in the light most fa-
vorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Smith, 83 M.J. 350, 359
(C.A.A.F. 2023) (internal quotation marks omitted) (quot-
ing United States v. Robinson, 77 M.J. 294, 297-98
(C.A.A.F. 2018)).
The Court properly holds in this case that evidence that
the victim was incapable of consenting because of intoxica-
tion generally cannot prove lack of consent in a case
charged under Article 120(b)(2)(A), UCMJ. This holding
implicates the legal sufficiency of the evidence for finding
Appellant guilty because, as one of the ACCA judges ob-
served, the “government’s primary evidence of lack of con-
sent in this case was the victim’s lack of memory due to in-
toxication and outward manifestation of intoxication.”
United States v. Mendoza, No. ARMY 20210647, 2023 CCA
LEXIS 198, at *12, 2023 WL 3540415, at *4 (A. Ct. Crim.
App. May 8, 2023) (Walker, S.J., dissenting) (unpublished).
But even if all of the intoxication evidence must be put
aside, the record in this case still contains other evidence
potentially relevant to the issue of consent. This Court may
determine whether this other evidence is legally sufficient
to sustain the finding that Appellant is guilty. United
States v. Long, 81 M.J. 362, 364 (C.A.A.F. 2021) (assessing
legal sufficiency in this manner).
The other evidence in this case includes: (1) testimony
that JW (the alleged victim) had no prior relationship with
Appellant; (2) testimony that JW would never have sex
while on her period; (3) testimony that JW would not have
pushed a tampon so far inside of herself; (4) testimony that
JW made a morning-after report to the Charge of Quarters
(CQ) desk after she realized something was wrong; (5)
2
United States v. Mendoza, No. 23-0210/AR
Judge MAGGS, concurring in part and dissenting in part
testimony that JW was upset; (6) testimony that Appellant
initially denied that he had engaged in any sexual acts with
JW; and (7) testimony that JW locked herself in Appellant’s
bathroom. Based on this other evidence, I would hold that
a rational trier of fact could have found that the element of
lack of consent under Article 120(b)(2)(A), UCMJ, was
proven beyond a reasonable doubt. Accordingly, I would an-
swer the granted question in the affirmative, and I would
not remand the case to the ACCA for further review of the
legal sufficiency of the evidence.
III. Factual Sufficiency
While I would decide that the evidence was legally
sufficient, I concur with the Court’s decision to remand the
case for a new factual sufficiency review. Although the
granted question and the briefs in this appeal do not
address factual sufficiency, our new clarification of the
relationship between Article 120(b)(2)(A), UCMJ, and
Article 120(b)(3)(A), UCMJ, raises the question of whether
the ACCA may have erred in its factual sufficiency
analysis. Because this Court cannot review questions of
factual sufficiency de novo, Appellant is entitled to have
the ACCA perform a proper factual sufficiency review in
the first instance.
3