United States v. Edmonds

This opinion is subject to administrative correction before final disposition.
Before
MONAHAN, STEPHENS, and DEERWESTER
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Israel EDMONDS
Corporal (E-4), U.S. Marine Corps
Appellant
No. 201900325
Decided: 29 March 20202021
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge:
Jeffrey Munoz
Sentence adjudged 29 March 2019 by a general court-martial
convened at Marine Corps Base Camp Pendleton, California,
consisting of officer and enlisted members. Sentence approved by the
convening authority: confinement for 2 years and a dishonorable
discharge.
For Appellant:
Lieutenant Commander Christopher K. Riedel, JAGC, USN (argued)
Bethany L. Payton-O’Brien, Esq. (on brief)
For Appellee:
Major Kerry E. Friedewald, USMC (argued)
Lieutenant Gabriel K. Bradley, JAGC, USN (on brief)
Lieutenant John L. Flynn, JAGC, USN (on brief)
Major Clayton L. Wiggins, USMC (on brief)
30 Mar 2021: Administrative correction to release date.
United States v. Edmonds, NMCCA No. 201900325
Opinion of the Court
Senior Judge STEPHENS delivered the opinion of the Court, in which
Chief Judge MONAHAN and Judge DEERWESTER joined.
_________________________
PUBLISHED OPINION OF THE COURT
_________________________
STEPHENS, Senior Judge:
Appellant was convicted contrary to his pleas of one specification of sexual
assault in violation of Article 120, 1 Uniform Code of Military Justice [UCMJ].
He now appeals, alleging seven Assignments of Error [AOEs], which we have
renumbered: (1) that the military judge erred in giving a variance instruc-
tion; (2) that the evidence was legally and factually insufficient; (3) that
Appellant’s detailed trial defense counsel [TDC] had a conflict of interest;
(4) that the trial counsel [TC] committed prosecutorial misconduct; (5) that
the cumulative effects of the errors undermined the fairness of the court-
martial; (6) that there was prejudicial post-trial delay; and (7) that it was
error for the military judge to admit Appellant’s uncorroborated statements
into evidence. 2
We find prejudicial legal error in the first and second AOEs. We find the
variance reflected in the members’ findings was material and prejudicial,
warranting dismissal with prejudice. But we also separately find that the
evidence is legally insufficient under United States v. Sager, 3 also warranting
dismissal with prejudice. Concerning the third AOE, after ordering and
considering an affidavit from the detailed TDC, we do not find a conflict of
interest. 4 Due to our resolution of the above AOEs, we find the fourth and
fifth AOEs moot. We take action in our decretal paragraph.
1 10 U.S.C. § 920.
2 Appellant’s sixth and seventh AOEs are raised pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982). We have reviewed these AOEs and find them
to be without merit. United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987), cert.
denied, 485 U.S. 968 (1988).
3 76 M.J. 158 (C.A.A.F. 2017).
4 We review AOE III for reasons of judicial economy.
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Opinion of the Court
I. BACKGROUND
Appellant lived on Marine Corps Base Camp Pendleton, California. He
and his Marine wife had no children and their on-base home was the site of
frequent alcohol-fueled parties. Appellant was sexually attracted to both men
and women, but his wife apparently did not know that. She eventually
learned that during one of these parties Appellant had some kind of sexual
encounter with another male Marine who was Appellant’s close friend.
Appellant’s wife confronted him about his extra-marital sexual activities.
Soon after that came to light, the friend, Corporal [Cpl] “Lima,” 5 formally
alleged that Appellant had sexually assaulted him.
Prior to trial, Appellant was interviewed by the Naval Criminal Investi-
gative Service [NCIS]. In his interview, he indicated he had a sexual encoun-
ter with Cpl Lima sometime in the summer or fall of 2014. However, when
Cpl Lima reported the sexual assault to NCIS, he stated the incident hap-
pened in October 2015 at a pre-deployment party.
The incident was essentially that Cpl Lima came to Appellant’s house to a
party, drank alcohol to the point of intoxication, and fell asleep on Appellant’s
couch. When he awoke the next morning, his pants were unbuttoned and
unzipped. Appellant, also very intoxicated, contends that he performed oral
sex on Cpl Lima, but was unable to see his eyes and did not know for certain
whether he was asleep or not. Appellant also contends that a few days after-
wards, he and Cpl Lima discussed what happened, and Cpl Lima laughed the
incident off and was not upset. However, Cpl Lima testified that he recalled
waking up on the couch with his pants undone and asking his girlfriend—
who attended the party with him—if they had engaged in any sexual activity.
She told him they did not. About 14 months later, when Cpl Lima was de-
ployed to Kuwait, he got a very tearful and upset video call from Appellant’s
wife. She told him she had recently confronted her husband about rumors of
his sexual activity with Cpl Lima while he was asleep. About two months
after that call, Cpl Lima returned to Camp Pendleton and filed an unrestrict-
ed report of sexual assault.
The Government charged Appellant with three specifications of sexual
assault under Article 120 for the single incident. The Government’s three
theories were that Appellant had (1) committed a sexual act on Cpl Lima
when he was unaware the sexual act was occurring due to his “exhaustion
5 All names in this opinion, other than those of Appellant, the judges, and coun-
sel, are pseudonyms.
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Opinion of the Court
and intoxication” [Specification 1]; (2) that he committed a sexual act on
Cpl Lima when he was asleep [Specification 2]; and (3) that he performed a
sexual act on Cpl Lima when he was incapable of consenting due to his
intoxication [Specification 3]. Appellant was acquitted of Specifications 2 and
3, but was convicted of Specification 1.
All of these specifications were charged as occurring “between on or about
October 2015 and on or about November 2015.” After Appellant testified in
front of the members that the incident [which he described as consensual]
occurred in late September or early October of 2014, the Government moved,
over Defense objection, for a variance instruction that would allow the mem-
bers in their findings to expand the dates of the alleged crime. The military
judge granted the motion. The members convicted Appellant on Specification
1 of committing a sexual act on Cpl Lima when he was unaware the sexual
act was occurring due to his “exhaustion and intoxication” and, by exceptions
and substitutions, that this act happened between on or about “July 2014 and
on or about October 2015.”
In addition, during the trial, Appellant’s detailed TDC temporarily lived
with the Victims Legal Counsel [VLC] who represented Cpl Lima. The
detailed TDC did not discuss this temporary living arrangement with Appel-
lant until the eve of trial, and only did so after Appellant’s civilian TDC
learned of the arrangement and informed Appellant. Because the detailed
TDC was responsible for large portions of Appellant’s defense, if Appellant
had wanted to dismiss his detailed TDC, it would have required a lengthy
continuance. Detailed TDC then discussed the issue with Appellant, who
signed a document acquiescing to the situation. On appeal, Appellant argues
this was a conflict of interest and that he only signed the document due to his
lack of complete understanding of the issue. In response, this Court ordered
the Government to obtain an affidavit from Appellant’s detailed TDC.
II. DISCUSSION
A. The Variance Was Fatal
1. Standard of Review and the Law
Whether a variance is fatal is a question of law this court reviews de no-
Rule for Courts-Martial [R.C.M.] 918 authorizes a court-martial to make
vo. 6
6 United States v. Treat, 73 M.J. 331, 335 (C.A.A.F. 2014).
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Opinion of the Court
findings by exceptions and substitutions. 7 The Discussion states, “Changing
the date or place of the offense may, but does not necessarily, change the
nature or identity of the offense.” 8 When a variance is made to the charge
sheet, it must not offend the Constitutional due process right of an accused to
“receive fair notice of what he is being charged with.” 9 For a variance to be
fatal to a specification, it must be both material and substantially prejudi-
cial. 10 A variance is material when it “substantially changes the nature of the
offense, increases the seriousness of the offense, or increases the punishment
of the offense.” 11 “A variance can prejudice an appellant by (1) putting him at
risk of another prosecution for the same conduct, (2) misleading him to the
extent that he has been inadequately able to prepare for trial, or (3) denying
him the ability to defend against the charge.” 12 In determining whether a
material variance denied an accused the opportunity to defend against a
charge, we “consider how the defense channeled its efforts and what defense
counsel focused on or highlighted.” 13
2. The 2014 Party as an Alternate Date for the Alleged Sexual Assault
The Government had very early notice this incident may have occurred in
2014. In Appellant’s interview with NCIS, he admitted that a sexual act
occurred with Cpl Lima at his house in October of 2014. This interview was
about 11 months before preferral of charges and almost 17 months before
arraignment.
At an Article 39(a) session held one month before the start of the contest-
ed phase of the trial, the parties litigated whether some of Appellant’s admis-
7 R.C.M. 918(a).
8 R.C.M. 918(a) Discussion.
9 Treat, 73 M.J. at 335 (citing and quoting United States v. Girouard, 70 M.J. 5,
10 (C.A.A.F. 2011).
10 United States v. Marshall, 67 M.J. 418, 420 (C.A.A.F. 2009) (citing United
States v. Finch, 64 M.J. 118, 121 (C.A.A.F. 2006)); United States v. Hunt, 37 M.J. 344,
347 (C.M.A. 1993) (citing United States v. Lee, 1 M.J. 15, 16 (C.M.A. 1975)).
11 Marshall, 67 M.J. at 420. (quoting Finch, 64 M.J. at 121 (citing United States
v. Teffeau, 58 M.J. 62, 66 (C.A.A.F. 2003))) (internal quotation marks omitted).
12 Treat, 75 M.J at 336 (citing Marshall, 67 M.J. at 420 (quoting Teffeau, 58 M.J.
at 67)) (internal quotations marks omitted).
13 Id. (citing Marshall, 67 M.J. at 421; Teffeau, 58 M.J. at 67; United States v.
Lovett, 59 M.J. 230, 236 (C.A.A.F. 2004)).
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Opinion of the Court
sions to NCIS could be corroborated. During this session, they discussed the
date of the party. The military judge said, “There appears to be a little bit of
confusion as to when this thing happened with [Cpl Lima]. So, for example,
the accused seems to give a different timeframe than what is charged.” 14 The
TC responded, “The accused states that it happened in the previous year,
around August of 2014 in his interrogation.” 15 But then the TC informed the
military judge that Cpl Lima mentioned a “pre-deployment party” and added
“we have records of when the Marine deployed. It was mid-October of 2015.
That is why it is charged the way it is, sir.” 16
Later the defense counsel argued that Appellant’s statements were not
corroborated because “[t]his party, where this alleged sexual assault oc-
curred, did not happen in 2015. It happened in 2014.” 17 He specifically
pointed to a witness, Sergeant [Sgt] Bravo who told NCIS of the 2014 date.
Sgt Bravo stated, “He [Cpl Lima] told me in late 2014 that [Appellant] had
performed oral sex on him.” 18 Sgt Bravo made his statement to NCIS nearly a
year and a half before preferral. The Government later countered this by
pointing out that Cpl Lima told NCIS that the party where the incident
occurred was in October of 2015. In making arguments for corroboration, the
TC admitted, “So I realize that it is very clear to all counsel, as well as the
military judge, that there is a date issue with this case. There [are] conflicts
with dates. This happened a long time ago.” 19 Defense argued that “what has
been consistent [from the witnesses] is that it did not happen in 2015, which
is the charged period . . . .” 20
During the contested trial on the merits, the Government presented evi-
dence that the incident occurred at the 2015 pre-deployment party. In open-
ing statements, the TC discussed how the Government knew it happened in
2015. The Defense countered by stating in its opening:
I’ve mentioned that they don’t know what year it happened.
There’s evidence that’s going to come in that said that
14 R. at 59.
15 Id. at 60.
16 Id.
17 Id. at 132.
18 Id. at 133.
19 Id. at 177.
20 Id. at 178.
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Opinion of the Court
[Cpl Lima] knew about this incident back in 2014 or early
2015, before the incident was supposed to have taken place, but
[Cpl Lima’s] going to get up here and tell you that he never
learned about it until the end of 2016. How could he have
talked about this incident in 2014 or early 2015 if the incident
is alleged to have happened on 10 October 2015? It’s because it
didn’t. It doesn’t make sense. They don’t know what year this
occurred, and you’re going to see that through the witness tes-
timony that comes out. 21
The Government’s first witness was a former Marine who attended the
pre-deployment party and was arrested for driving while intoxicated [DWI]
that evening. The Government offered the incident report into evidence to
establish the date of the pre-deployment party. The Government also offered
Appellant’s personnel records showing he deployed one week after the party.
When Cpl Lima testified, he identified the pre-deployment party from Octo-
ber 2015 as the date he was sexually assaulted. He also testified that he
became intoxicated very quickly by drinking liquor straight from a bottle,
which was his last memory of the evening. He awoke the next morning to
discover his pants were unbuttoned and unzipped. He testified that this was
the only time that something like this had ever occurred. He left the party
with his civilian girlfriend, who had slept elsewhere in the home that night.
On the drive home, he asked her if anything sexual had happened between
them the night before. She said that nothing did.
On cross-examination, Cpl Lima denied ever being told by Appellant in
early 2015, or any other time, that Appellant performed oral sex on him.
Cpl Lima was challenged with the text messages he exchanged with Appel-
lant during a controlled exchange facilitated by NCIS. Those messages were
exchanged in March of 2017, about a year and a half after the party. Appel-
lant said, “I was honest with you whenever I told you that day at my house
that I’m the one who sucked you.” 22 Cpl Lima never challenged or sought
clarification of Appellant’s statement. The Government’s theory was that
Cpl Lima first learned of an oral sex incident with Appellant from a video-call
from Appellant’s wife while he was deployed to Kuwait in December 2016,
over a year after the pre-deployment party. And Cpl Lima maintained that
because of his and Appellant’s respective deployments, they had not seen
each other after the pre-deployment party until after he learned about the
21 Id. at 556.
22 Id. at 622; Pros. Ex.4 at 5.
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Opinion of the Court
encounter on the video-call. Cpl Lima also denied telling two other Marines
about the incident in 2014.
The Government called Cpl Lima’s civilian ex-girlfriend. She testified that
the day after the pre-deployment party, Cpl Lima asked her if they had
engaged in any sexual activity the night before. She confirmed they did not.
She also testified that the day after the party, Cpl Lima told her that he
believed Appellant “gave him head” 23 while he was passed out. She also
testified that, according to Cpl Lima, about a week later he and Appellant
discussed what happened and Appellant said the incident was something he
“and his friends do in Texas.” 24 However, Cpl Lima denied that he ever told
his girlfriend anything about confronting Appellant or that Appellant charac-
terized the incident as “something they do down in Texas.” 25
While discussing with counsel the good faith basis for the Defense to in-
quire into whether Cpl Lima ever used drugs, the military judge stated, “The
Defense theory is that the Government’s got their year wrong, and that this
incident happened in the fall of 2014 . . . .” 26 He also stated, “I mean, the
Government’s theory is it happened in October. The Defense theory is, no, it
didn’t; it happened a year earlier. So somebody’s right, somebody’s wrong,
and that’s why we have members.” 27 Later when discussing an issue under
Mil. R. Evid. 412, the military judge stated, “the Defense is not agreeing that
there are two incidents. Defense, are you? . . . Am I stating your position
correctly?” 28 The TDC replied, “Spot on, Your Honor.” 29
After the civilian wife of one of the witnesses testified that Appellant had
admitted to performing oral sex on Cpl Lima, a member asked a question.
“When did [Appellant] put [Cpl Lima]’s penis in his mouth, if you know?” 30
The witness answered, “I do not know.” 31
23 R. at 684.
24 Id. at 677-78; 686-87.
25 Id. at 644.
26 Id. at 707.
27 Id.
28 Id. at 716.
29 Id.
30 Id. at 779; App. Ex. XL.
31 R. at 779.
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Opinion of the Court
Another former Marine, the aforementioned Sgt Bravo—who previously
testified at an Article 39(a) session—testified for the Defense. He was room-
mates with Cpl Lima from the summer of 2014 to November of 2015. He
testified that he had a conversation with Cpl Lima concerning oral sex with
Appellant. And that conversation “took place approximately June of 2015 to
November of 2015.” 32 But he admitted that in his interview with NCIS in
2017, he said that he believed the conversation happened from 2014 to 2015.
The TDC impeached his own witness by reminding him that in his pretrial
Article 39(a) testimony, he testified that the conversation happened in the
fall of 2014. Sgt Bravo responded that he had been incorrect, because he did
not live with Cpl Lima until 2015, and that is when the conversation oc-
curred. The military judge instructed the members that the witness’ prior
inconsistent statements supporting a 2014 date for the incident were to be
used only to evaluate his in-court testimony supporting a 2015 date. 33 We
also do not consider the prior inconsistent statements as substantive evi-
dence, but take them into account in considering how much of the Defense
trial strategy centered on whether the incident happened in 2014 or 2015.
Finally, Appellant waived his right to not “be a witness against himself” 34
and took the stand. He was adamant the incident occurred at a party at his
home in late September or early October in 2014 near the time of a Hallow-
een “rave.” He testified that shortly after waking up, Cpl Lima asked him if
he had “messed around with anybody at the party that night.” 35 Appellant
stated that he did not believe so and, at the time, said he could not remember
anything happening.
A few days later, according to Appellant, he discussed what happened
with Cpl Lima. He admitted to his friend that he thought he performed oral
sex on him the night of the party. According to Appellant, Cpl Lima’s reaction
was to laugh it off and say “at least I got my d[***] wet.” 36 Their friendship
was unchanged. Cpl Lima, who was living with Appellant and his wife at
their on-base home at the time, did not move out until January 2015.
32 Id. at 828.
33 App. Ex. LII at 6.
34 U.S. Const. amend. V.
35 R. at 907.
36 Id. at 909.
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Opinion of the Court
Appellant also testified about the pre-deployment party. He characterized
it as “very planned” and different from the other kinds of parties he and his
wife held. He recalled Cpl Lima arriving late, with his girlfriend, whom he
was not dating at the time of the 2014 party, and consuming alcohol very
quickly. Appellant did not drink very much alcohol because he did not want
to risk getting into any trouble or having the police called just as he was
about to deploy. The party wound down around 0300 or 0400 and Appellant
went to bed. But then he got a phone call from his staff non-commissioned
officer. He directed Appellant to come pick up the girlfriend of the Marine
who had been arrested for DWI coming from Appellant’s party, because that
Marine was being placed on restriction [though the reason for this is unclear
from the record]. The next morning, Cpl Lima was engaged in conversation
with others, and laughing about how drunk he was during the party. He then
left with his girlfriend.
About three days later, Appellant deployed to Okinawa for six or seven
months. When he returned in the spring of 2016, Cpl Lima was deployed.
They stayed in touch and, according to Appellant, never had any discussion
about the incident until December of 2016 when Appellant’s wife learned of
his sexual orientation and various rumors pertaining to that.
The Government presented a case in rebuttal by calling the NCIS special
agent who interviewed Appellant. His interview was offered and admitted
into evidence. A member asked the special agent, “Can you confirm the exact
date that the alleged incident happened?” 37 The special agent gave a some-
what lengthy response, stating that, while both he and Appellant seemed to
be discussing a “singular event,” he was “not very focused on the date” and
that “maybe” he “should have been.” 38 He concluded by saying, “the dates
involved . . . was not something that I, specifically, drilled down to . . . .” 39
After the presentation of both side’s cases and some discussion about find-
ings instructions, the court recessed at 1655. The parties were set to make
closing arguments the next morning. At the time the court recessed, there
had been no mention of a variance instruction.
37 Id. at 1056; App. Ex. L.
38 R. at 1056.
39 Id.
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3. The Government Moves for a Variance
Just after the court recessed, the Government first raised the possibility
of a variance instruction to expand the charging window to July 2014. The
next morning, at 0814, the Government sent the military judge and the
Defense an e-mail 40 requesting a variance instruction to expand the charging
window from October 2015 back to July 2014 and some reasons supporting it.
At 0852, the court-martial was called to order and the parties discussed the
issue.
The TC conceded a variance that extended the charging window back to
July 2014 would be material—a concession the Government rejects on appeal
because it was based on what it now considers to be an incorrect view of the
law—but argued that it would not substantially prejudice Appellant. With
respect to prejudice, the TC believed jeopardy had attached, but that Appel-
lant was on notice that a possible date for the offense was in 2014 and had
not been misled to the point where he was unable to adequately prepare for
trial.
Appellant argued that the Government’s corroboration for Appellant’s
statements were tied to the 2015 date of the offense, that the Government
persisted in arguing and attempting to prove the date of the offense was
2015, and that it knew well before preferral of charges of the possible 2014
date for the offense. The Defense argued that such a variance would “pull the
rug out from under us . . . .” 41
The military judge disregarded the TC’s concession on the materiality of
the variance. Citing to United States v. Treat, 42 the military judge found the
requested variance was not material because the nature, seriousness, and
punishment of the offense would not change. With respect to prejudice, the
military judge agreed that jeopardy had attached and was doubtful the
Government could charge Appellant again for the same offense if it alleged it
happened in 2014. He also found because the Defense knew of the facts that
supported the possibility that the incident occurred in 2014, and used those
facts as a Defense theory, that Appellant had not been misled so that he was
inadequately able to prepare for trial. Soon after this, at 0935, the court-
martial was in recess. About an hour later, the parties came back on the
40 App. Ex. LIII.
41 R. at 1089.
42 73 M.J. 331.
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record, dealt with some preliminary matters and moved into closing argu-
ments.
During closing, the Government highlighted the variance instruction and
read it to the members. The TC argued that because “the accused got up here
and he testified, and he said that it occurred—he thought between September
and October 2014” that if the members had “any doubt as to the date” that
they could write in an extended 2014 date. 43 To the extent the Government
referenced dates, it was for the October 2015 date, and its evidence was
generally tied to the events of the pre-deployment party. The Defense argu-
ment centered on Cpl Lima’s lack of credibility, but did argue that the Gov-
ernment’s case was weak because it admitted it did not know when the
incident took place or at which party it occurred. In rebuttal, the TC, among
other arguments, reminded the members they were “able to extend the
timeline” 44 if necessary to convict.
4. After the Members Convict Appellant, the Civilian Defense Counsel
Makes Comments on the Record
The members convicted Appellant of only Specification 1 of the Charge.
They excepted the words, “October 2015 and on or about November 2015” and
substituted the words “July 2014 and on or about October 2015.” The court-
martial recessed for the evening after the announcement of findings.
The next day, while the members deliberated on a sentence, the Civilian
Defense Counsel made some additional statements for the record regarding
the variance. He stated, “If we had known that, we may not have put our
client on the stand. Proving that the event happened in 2014 was one of the
key factors in making that decision to put him on the stand, convincing the
members that it did, in fact, happen in 2014.” 45 He added that the variance
“changed my closing argument at the last moment” 46 and that the Defense
had prepared a case for an allegation that was charged as occurring between
on or about October and on or about November of 2015. He continued that the
date of the charging “informed and shaped the pretrial litigation of this court-
martial as well, as far as discovery, witness requests, motions, the Govern-
43 R. at 1135-36
44 Id. at 1190.
45 Id. at 1292.
46 Id.
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Opinion of the Court
ment’s position on motions, the judge’s rulings regarding particular motions,
especially the [corroboration] motion as we’ve already discussed.” 47
5. Analysis
This Court must answer whether the variance was material, and if it was,
whether it substantially prejudiced Appellant. Given all of the facts and
circumstances of this court-martial and how the sequence of events played
out at trial, we easily conclude the variance was fatal; it was material and it
substantially prejudiced Appellant.
a. The variance was material
The variance was material because it substantially changed the nature of
the offense. While the offense remained the same—a sexual assault of
Cpl Lima at a party at Appellant’s house—the nature of the offense was
different. In United States v. Marshall, 48 a variance was material when the
appellant was charged with escaping from the custody of a captain. He
defended himself at trial by arguing that he was actually in the custody of a
staff sergeant. When the variance allowed for the staff sergeant to be substi-
tuted for the captain, this changed the very nature of the offense because it
“denied him the opportunity to defend against the charge.” 49 Here, there were
two different house parties, just as there were two different persons in
positions of authority in Marshall. The circumstantial context of the different
house parties, the witnesses’ memories, and the motivations for bias and
fabrication are all different.
For example, if the incident happened in 2014, as Appellant testified, it
would seem more likely that Cpl Lima felt pressured or shamed to falsely
report a sexual assault in 2017, only after Cpl Lima’s wife discovered what
happened and confronted Appellant. This theory would be buttressed by
Cpl Lima’s continued friendship with Appellant well over a year after the
incident occurred. In fact, during the Government’s case in rebuttal one of the
members asked the NCIS agent a question that indicates this strategy may
have had some traction. He asked, “What’s the normal time range for report-
ing a crime of this nature?” 50 The TC objected to this question, but the mili-
47 Id. at 1293.
48 67 M.J. 418.
49 Id. at 421 (citing Teffeau, 58 M.J. at 67) (internal quotation marks omitted).
50 App. Ex. XLIX; R. at 1055.
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Opinion of the Court
tary judge allowed it. Regardless of whether this would have been a success-
ful strategy or not, the difference between 2014 and 2015 changed the nature
of the offense.
b. The variance was prejudicial
This case differs markedly from a case where a variance was not prejudi-
cial, United States v. Hopf. 51 In Hopf, the appellant was charged with assault-
ing a “Han Sum U, a Korean male.” But during the trial, the injuries to the
victim prevented his appearance and the two witnesses, both American
soldiers, did not know the victim’s name or who he was. After exceptions and
substitutions, the specification read, “an unknown Korean male.” There was
no disagreement on the underlying facts and context of the assault. Nothing
misled the appellant, undermined his defense strategy, or resulted in some
kind of surprise at trial.
Similarly, in United States v. Treat52 the variance in a missing movement
case was the exception of a specific flight number, “Flight TA4B702” and the
substitution of words indicating it was the appellant’s “main body” flight for
his unit. The time, date, and location of the flight were unchanged. The Court
of Appeals for the Armed Forces [CAAF] did not find this to be prejudicial
because it did not alter the defense strategy, which was focused on his claim
he was kidnapped and unable to be present for his unit’s movement. CAAF
looked “closely at the specifics of the defense’s trial strategy when determin-
ing whether a material variance denied an accused the opportunity to defend
against a charge” and “how the defense channeled its efforts and what de-
fense counsel focused on or highlighted.” 53
While fifteen months is a considerable amount of time, we note that time
alone is not necessarily dispositive in determining whether a variance is
fatal. 54 Here we focus on the second and third prongs of the test for whether a
51 5 C.M.R. 12 (C.M.A. 1952).
52 73 M.J. 331.
53Id. at 336 (citing Marshall, 67 M.J. at 421; Teffeau, 58 M.J. at 67; Lovett, 59
M.J. at 236).
54See, e.g., United States v. Parker, 59 M.J. 195 (C.A.A.F. 2003) (error to instruct
on two year variance when prosecution presented no evidence of charged offense
during the time-period in the original specification); United States v. Hunt, 37 M.J.
344 (C.M.A. 1993) (three weeks difference between time of offense alleged in charge
sheet and evidence presented by prosecution fell within “on or about” and variance
was not material).
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Opinion of the Court
material variance is prejudicial. We find that Appellant was misled “to the
extent that he has been unable adequately to prepare for trial” and that he
was denied “the opportunity to defend against the charge.” 55 Appellant’s trial
preparation and presentation was effectively a nullity. His theory was that
nothing happened in 2015 and that an incident—albeit not a sexual assault—
occurred in 2014. This strategy was predicated on the Government’s decision
to charge the 2015 date.
Moreover, the date discrepancy was well-known to the Government far in
advance of trial. While the Government argues that this means Appellant
was “on notice” and was able to prepare and benefit from the wording of the
specification, all of that preparation and trial strategy was nullified because
of the variance. The variance meant not only that Appellant’s trial prepara-
tion was inadequate for the actual specification the members deliberated on,
but that Appellant was effectively retroactively prohibited from presenting a
defense. The trial he prepared for was fundamentally different from the
charge. The defense he made was virtually irrelevant.
Given that the underlying concern of a variance is one of constitutional
due process, it is significant that Appellant waived his right to not be a
witness against himself—a fundamental constitutional right embedded in our
legal system—to further his trial defense strategy. Rather than aiding his
cause, Appellant’s testimony had the effect of unfairly supporting the Gov-
ernment’s case. There is little possibility Appellant would have testified had
the Government charged both the 2014 and the 2015 dates or that Appellant
had reason to believe such a variance would be granted.
The overall effect of the variance was to unfairly “pull the rug out” from
under Appellant. The Government knew well in advance of the possibility
that Appellant would argue that the incident, albeit short of a crime, oc-
curred in 2014 and not in 2015. Yet, it chose to charge the dates it did.
Appellant’s primary trial strategy, including the decision to testify, centered
on the difference between the 2014 date and the charged date. The entire
substantive nature of the trial changed for Appellant at the very last mi-
nute—after he had already testified—in a way in which he was left unable to
adequately defend himself. The variance was fatal.
55 Treat, 73 M.J. at 336.
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Opinion of the Court
B. The Evidence is Legally Insufficient
Having found the variance to be fatal and warranting dismissal of the
finding and sentence of the charge and its sole specification, we also find—
independent of the variance—that the evidence for the specification is legally
insufficient.
1. Standard of Review
“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.” 56 When
we conduct this de novo review, 57 we are “bound to draw every reasonable
inference from the evidence of record in favor of the prosecution.” 58
2. Analysis
The only specification Appellant was convicted of has the following ele-
ments:
(1) that he committed a sexual act upon Cpl Lima by plac-
ing his mouth around Cpl Lima’s penis;
(2) that he committed the act when Cpl Lima was unaware
the sexual act was occurring due to his “exhaustion and intoxi-
cation”; and
(3) that he knew or reasonably should have known
Cpl Lima was unaware the sexual act was occurring due to his
exhaustion and intoxication.
Given Appellant’s testimony, and his admissions to others concerning the
sexual act, the central issue is whether Cpl Lima could have been unaware
that the sexual act was occurring due to his exhaustion and intoxication.
In considering all of the evidence, we recognize Appellant was acquitted of
the same act while Cpl Lima was “asleep” or “incapacitated by intoxication.”
Though the members found there was not enough evidence for a conviction on
56 United States v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017) (citing United States
v. Gutierrez, 73 M.J. 172, 175 (C.A.A.F. 2014)).
57United States v. Beatty, 64 M.J. 456, 459 (C.A.A.F. 2007); United States v.
Turner, 25 M.J. 324 (C.M.A. 1987).
58 United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citing United States
v. Blocker, 32 M.J. 281, 284 (C.M.A. 1991)).
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Opinion of the Court
these separate specifications, this does not foreclose us from considering
evidence pertaining to those specifications in reviewing the specification at
issue. For example, in United States v. Rosario, 59 CAAF, held that a service
court of criminal appeals may consider evidence from a specification for
assault, which resulted in an acquittal, when reviewing a specification for an
orders violation. An acquittal removes the specification from appellate
review, but, depending on the circumstances, does not necessarily remove the
underlying evidence from appellate review for other specifications. Therefore,
despite an acquittal on the other specifications, this Court can still consider
Cpl Lima’s level of exhaustion and his intoxication level.
Article 120(b)(2) provides that an accused may be charged with a sexual
assault when a victim is “asleep, unconscious, or otherwise unaware the act
is occurring.” In United States v. Sager, 60 CAAF held that each of these three
categories constituted a separate theory of liability. In other words, it is
unlawful to commit a sexual act on someone who is asleep, just as it is illegal
to do so when someone is unconscious, or when someone is “otherwise una-
ware” in some way that is different from being asleep, and different from
being unconscious. 61 In United States v. Brantley, one of our sister service
courts held that the term “otherwise unaware” takes its context and meaning
from the terms “asleep” and “unconscious” in the statute. 62 Likewise, our
interpretation 63 has comported with Brantley. Thus, “otherwise unaware” is a
state separate, but akin to, being asleep or unconscious.
In United States v. Pease, this Court 64 attempted to give a detailed defini-
tion to the term “incapable of consenting” and was affirmed by CAAF. 65
Where we looked to the statutory language in Pease in applying the term
“incapable of consenting,” we again do the same for the statutory term
“otherwise unaware.” The statute instructs us on the definition of consent: “a
59 76 M.J. at 117.
60 76 M.J. 158 (C.A.A.F. 2017).
61 Id. at 162.
62 2017 CCA LEXIS 742 at *6-7 (A. Ct. Crim. App. Nov. 30, 2017) (unpublished).
63 United States v. Washington, 2019 CCA LEXIS 47 (N-M. Ct. Crim. App. Feb. 8,
2019) (unpublished).
64 74 M.J. 763 (N-M. Ct. Crim. App. 2015).
65 75 M.J. 180 (C.A.A.F. 2016).
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Opinion of the Court
sleeping, unconscious, or incompetent person cannot consent.” 66 If a victim is
in a physical or mental state where he is “incapable of appraising the nature
of the conduct at issue” 67 or “physically incapable of declining participation
in, or communicating unwillingness to engage in, the sexual act at issue” 68
then he is incapable of consenting. A sleeping or unconscious person cannot
possibly give consent to a sexual act because he is physically incapable of
giving consent or even manifesting a physical reaction that indicates consent
to a reasonable person. An “otherwise unaware” person must also exhibit the
same physical or mental traits akin to being asleep or unconscious that would
foreclose his ability to understand what is happening or provide physical or
verbal signs of consent.
The fatal problem with the specification at issue is that the facts do not
support the Government’s theory of unawareness. The specification alleges it
was a crime for Appellant to commit a sexual act on Cpl Lima when he was
unaware the sexual act was occurring because he was “exhausted and intoxi-
cated.” However, even viewing the evidence in the light most favorable to the
Prosecution, there is insufficient evidence in the record to support a reasona-
ble conclusion that Cpl Lima’s unawareness of the sexual act was caused by
exhaustion and intoxication, and that even if it was, that such unawareness
was akin to being asleep or unconscious as required under Sager.
Appellant admitted, both in his NCIS interview and in his testimony, that
he performed oral sex on Cpl Lima for a couple of minutes, but could not
remember if Cpl Lima ejaculated. Appellant testified that he did not look at
Cpl Lima’s face, and did not know whether his eyes were open or closed. He
could not recall what happened immediately before or after the incident, but
could not rule out that some other sexual contact occurred. Cpl Lima had no
memory of the event whatsoever.
On appeal, the Government argues Cpl Lima was emotionally and physi-
cally exhausted due to his heavy drinking that evening and the ordeal of
breaking up with his girlfriend that night. It further argues, citing Sager,
that exhaustion and intoxication are manners of unawareness different from
asleep and different from unconsciousness.
66 UCMJ art. 120(g)(7)(B).
67 UCMJ art. 120(g)(8)(A).
68 UCMJ art. 120(g)(8)(B).
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The Government cites Brantley, 69 the aforementioned case from one of our
sister service courts, and emphasizes that the specification does not contain
the word “otherwise.” In Brantley, the appellant was charged with commit-
ting a sexual act on a victim who was “otherwise unaware.” But in Brantley
there was no context. The specification did not also allege “asleep” or “uncon-
scious,” and the military judge’s instructions did not define what otherwise
unaware meant and in what context. Here, the Government argues that
because it specified the means of being unaware—exhaustion and intoxica-
tion—that a reasonable factfinder could find that Cpl Lima was unaware.
But while Brantley was untethered to anything, this specification was
merely tethered to Cpl Lima’s “exhaustion and intoxication.” The problem is,
under these facts, Cpl Lima’s exhaustion and intoxication does not even come
close to the necessary state akin to, but distinct from, being “asleep” or
“unconscious” to sustain a conviction. An unusual fact pattern requires
evidence to support it. On the facts of this record, even viewing the evidence
in the light most favorable to the Government, we find that no rational trier
of fact could have found beyond a reasonable doubt that Cpl Lima was una-
ware that a sexual act was being committed upon him due to his “exhaustion
and intoxication.” Therefore, we find Specification 1 of Charge I legally
insufficient. 70
C. There Was No Conflict of Interest for Detailed Trial Defense
Counsel
1. Standard of Review and the Law
Whether a conflict of interest exists is a mixed question of law and fact,
which we review de novo. 71 The Sixth Amendment affords an accused the
right to a conflict-free counsel. 72 An “actual conflict” is one “where a conflict of
interest . . . adversely affects counsel’s performance.” 73 When an appellant
69 2017 CCA LEXIS 742.
70 We abstain from reviewing this case for factual sufficiency because we have
found it legally insufficient. This is because we are required to “first . . . determine
the correct, applicable law in this case in order to properly conduct [our] factual
sufficiency analysis.” Pease, 75 M.J. at 184.
71 United States v. Smith, 44 M.J. 459, 460 (C.A.A.F. 1996).
72United States v. Hale, 76 M.J. 713, 716 (N-M. Ct. Crim. App. 2017) (citing
Wood v. Georgia, 450 U.S. 261, 271 (1981)).
73 Mickens v. Taylor, 535 U.S. 162, 172 n.5 (2002).
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Opinion of the Court
can show “that a conflict of interest actually affected the adequacy of his
representation, [he] need not demonstrate prejudice in order to obtain re-
lief.” 74
2. Analysis
After reviewing the sworn declaration of the detailed TDC, we find there
was no actual conflict of interest. Appellant’s central complaint against his
detailed TDC was that he failed to disclose that he had a temporary living
arrangement with the VLC in the case and that this conflict caused him to
provide bad advice. Specifically, the purported bad advice was that Appellant
should enter into a pretrial agreement [PTA] offered by the Convening
Authority. Appellant further argues that his TDC’s advice on the PTA re-
flected his desire to not have his active duty service extended for a contested
trial.
Based on detailed TDC’s affidavit, we find his living arrangement with
the VLC had no impact on his advice or the court-martial. The detailed TDC
was planning to move his family away from California prior to the end of his
active service so his children could begin school. Not wanting to pay for two
homes, the detailed TDC rented a room with the VLC, whom he knew and
had a professional relationship and personal friendship with, from serving as
defense counsel together in the past. The detailed TDC was already detailed
to at least one other case with a trial scheduled after Appellant’s trial. The
detailed TDC’s family situation and his end of active service appeared to have
no role in his advice to enter into the PTA. Moreover, that advice was echoed
by Appellant’s other counsel as well.
To be clear, we find no impropriety concerning the friendship between the
detailed TDC and the VLC and see nothing that took it into the realm of an
inappropriate personal or romantic relationship. The detailed TDC consulted
with the supervising Regional Defense Counsel [RDC] concerning the living
arrangement with the VLC. The RDC advised him that he was not required
to inform his relevant clients about it. We question whether the RDC provid-
ed prudent advice by not recommending that TDC disclose to Appellant a
living situation that could appear to create a conflict of interest. But there is
nothing in the record that indicates there was an actual conflict between
TDC’s and Appellant’s interests. Specifically, there is no evidence that
detailed TDC’s advice concerning the PTA was tied in any way to his end of
active service or that his living situation with the VLC impacted his perfor-
74 Cuyler v. Sullivan, 446 U.S. 335, 349-50 (1980) (citation omitted).
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Opinion of the Court
mance in any way. Moreover, we find no prejudice due to the potential
conflict of interest that arose under these circumstances, and thus, deny any
relief due to that potential conflict of interest. 75 Thus, we find this AOE is
without merit.
III. CONCLUSION
The finding and sentence are SET ASIDE. The charge and specification
are DISMISSED WITH PREJUDICE. All rights, privileges, and property of
which Appellant has been deprived due to the finding and sentence are
ordered restored. 76
Chief Judge MONAHAN and Judge DEERWESTER concur.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
75 See United States v. Strickland, 466 U.S. 668, 697 (1984) (finding no need to
determine whether counsel’s performance was deficient if there is an insufficient
showing of prejudice).
76 UCMJ arts. 58b(c), 75(a).
21