Appellant challenges the factual sufficiency of his conviction for sexually assaulting MB. We have reviewed the evidence, which includes a video-recording of
appellant’s sexual encounter with MB. The video-recording demonstrates that MB repeatedly gave audible consent—or at least what reasonably appears to be audible consent—to sexual intercourse with appellant. Considering this evidence, we are not personally convinced that MB was incapable of consenting to the sexual intercourse.
The footnote to this finding states:
A panel with enlisted representation, sitting as a general court-martial, convicted appellant, contrary to his pleas[.]
The Court outlines the issues thus:
First, appellant argues—and the government concedes—the military judge erred by instructing the panel it could convict appellant under a theory of vicarious liability for the sexual acts of PV2 Avila that allegedly took place after appellant’s sexual encounter with MB. We accept the government’s concession of error and prejudice.
Second, appellant agues his conviction for sexually assaulting MB is factually insufficient. We agree.
Third, appellant argues the military judge abused her discretion by not suppressing appellant’s statements to the MPs and CID, and by not suppressing the
contents of appellant’s cell phone. We agree in part and disagree in part.
Fourth, appellant argues the military judge plainly erred by failing to instruct the panel on the necessary mens rea of the appellant as to the age of the persons to whom he provided alcohol. We conclude any instructional error was harmless, as there was overwhelming evidence appellant knew the recipients of the alcohol were under age.
Fifth, and finally, appellant alleges he suffered from dilatory post trial processing. We agree and factor the post-trial delay into our relief on appellant’s
United States v. Deason, Army, 2019.
You might also find footnote 6 of interest.