United States v. Brammier

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________

No. ACM 39582
________________________

UNITED STATES
Appellee
v.
Wesley A. BRAMMIER
Captain (O-3), U.S. Air Force, Appellant
________________________

Appeal from the United States Air Force Trial Judiciary
Decided 11 September 2020
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Military Judge: Andrew Kalavanos (arraignment); W. Shane Cohen.
Approved sentence: Dismissal and confinement for 39 months. Sentence
adjudged 27 July 2018 by GCM convened at Tyndall Air Force Base,
Florida.
For Appellant: Major David A. Schiavone, USAF; Philip D. Cave, Es-
quire; J. Thomas Province, Esquire.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Dayle
P. Percle, USAF; Mary Ellen Payne, Esquire; Deniz Gunaydin (legal in-
tern). 1
Before POSCH, RICHARDSON, and MEGINLEY, Appellate Military
Judges.
Senior Judge POSCH delivered the opinion of the court, in which Judge
RICHARDSON and Judge MEGINLEY joined.
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This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.

1Mr. Gunaydin was a legal intern with the Air Force Legal Operations Agency and
was at all times supervised by attorneys admitted to practice before this court.
 United States v. Brammier, No. ACM 39582

________________________

POSCH, Senior Judge:
A general court-martial composed of a military judge sitting alone con-
victed Appellant, contrary to his pleas, of sexual assault of CE in violation of
Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920. 2 Ap-
pellant was sentenced to a dismissal, confinement for 39 months, and a repri-
mand. Before the convening authority took action, he waived the mandatory
forfeiture of Appellant’s pay and allowances for the benefit of Appellant’s
spouse and dependent children for a period of six months, upon release from
confinement or expiration of term of service, whichever was sooner, with the
waiver commencing on 10 August 2018. At action, the convening authority ap-
proved the adjudged sentence except the reprimand.
Appellant initially raised four issues on appeal: (1) whether the evidence is
legally and factually sufficient to support the conviction; (2) whether Appellant
is entitled to relief for multiplicity or unreasonable multiplication of charges; 3
(3) whether trial defense counsel provided ineffective assistance of counsel by
failing to prepare Appellant to testify and to call Appellant’s wife to testify on
Appellant’s behalf in findings; 4 and (4) whether the military judge erred “when
instructing himself” on the definition of “incompetent person” impaired by al-
cohol when the specification alleged “bodily harm.” 5 With respect to issues (2)
through (4), we have carefully considered Appellant’s contentions and find they
do not require further discussion or warrant relief. See United States v. Matias,
25 M.J. 356, 361 (C.M.A. 1987). Appellant also filed a supplemental assign-
ment of error (AOE) claiming relief under United States v. Tardif, 57 M.J. 219
(C.A.A.F. 2002), is warranted due to the violation of the 18-month standard for
appellate review in United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006).

2All references in this opinion to the Uniform Code of Military Justice and Rules for
Courts-Martial are to the Manual for Courts-Martial, United States (2016 ed.).
3 Appellant was charged with penetrating CE’s vulva with his penis, finger, and
tongue, in Specifications 1–3, respectively, of the Charge. Although the military judge
acquitted Appellant of Specifications 2 and 3, Appellant claims prejudice from the bur-
den of defending against three specifications at once.
4Appellant did not testify in his own defense. In a colloquy with the military judge,
Appellant acknowledged his decision was a “voluntary choice.”
5Appellant raises issues (2) through (4) pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982).

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We find Appellant’s conviction both legally and factually sufficient, and no
error materially prejudicial to the substantial rights of Appellant occurred.
Thus, we affirm the findings and sentence.

I. BACKGROUND
Appellant and his wife, CB, became close friends with CE and her husband,
an Air Force captain, when they were stationed together at Tinker Air Force
Base (AFB), Oklahoma. Both families had young children, and the families fre-
quently spent time together with their circle of friends. CE had a particularly
close friendship with CB and they spent time together at least once a week. In
the summer of 2014, CE’s husband deployed and the wives grew closer and
spent more time together.
The month before CE’s husband redeployed to Tinker AFB, on 25 October
2014, CE and her two children gathered with friends at Appellant’s home to
celebrate CB’s birthday. In the evening, as CE’s children, ages two and four,
slept on the bed in the upstairs guestroom, CE and others drank alcohol, in-
cluding shots of whiskey, downstairs. CE had consumed “[q]uite a bit” of alco-
hol and “was intoxicated” in the few hours she was drinking. By the end of the
evening she “was pretty drunk,” and “could barely walk.” Appellant’s and CB’s
baby was also sleeping upstairs. During the party, CE heard the baby monitor
go off and prepared a bottle. She told CB, “Don’t worry about it. It is your birth-
day. I will go take care of her.”
While CE was upstairs feeding and comforting the baby, she noticed Appel-
lant in the room. She felt “a little guilty” because she “was intoxicated and
holding an infant.” Thinking this might upset Appellant, CE bent down to put
the baby back in the crib, but then she stumbled and lost her footing as she
tried to stand up. CE leaned to one side and stopped herself from falling at the
same time Appellant grabbed onto her to keep her body from hitting the floor.
Appellant then helped CE walk to the guestroom where her children were
sleeping, and where she planned to spend the night as she and her children
had done many other times.
CE remembered Appellant helping her to the bed to lay down. She remem-
bered thinking to herself, “[O]kay, I am done for the night. I am too drunk, [I]
can’t walk, I’m in bed with my kids, and I’m just kind of checking out at this
point.” CE then felt her pants coming off and, at first, was “still not thinking
much of it.” CE testified while her eyes were closed, her pants were removed
completely, exposing her underwear. CE did not believe she was blacked out
drunk, telling the court, “I remember saying no after feeling my pants being
taken off. So, I feel like if I would have blacked out, I wouldn’t have remem-
bered the rest of the night. . . . A lot of it is blurry and some of it is vivid . . . .”

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CE testified she was unsure if Appellant performed oral sex on her or if he
penetrated her vulva with his fingers.
The next thing CE remembered was “feeling kind of coming to, just not
really knowing what [was] going on but feeling incredibly inappropriate, [and]
trying to grasp what was happening.” As she lay on her back with her legs
slightly off the side of the bed, she felt an “inappropriate touching” between
her legs, and initially “wasn’t sure what was going on.” However, CE recog-
nized Appellant’s face above her and when she saw Appellant’s hands on either
side of her head she “realized what was happening and [she] told him to stop
and that his wife was downstairs.” CE explained “when [she] saw [Appellant’s]
hands next to [her] and [she] saw his face over [hers], [she] felt penetration and
at that point [she] knew it was [Appellant’s] penis.” When CE told Appellant
to “stop,” Appellant responded, “But you let [Captain NB],” in reference to their
mutual friend who at the time was celebrating downstairs with CB and other
guests. CE replied, telling Appellant “No. That didn’t happen.” 6 CE recalled
Appellant became “frustrated, just kind of huffing.” As he left the guestroom,
Appellant said to CE, “[T]his was the sexiest thing he had ever done.”
CE was certain Appellant penetrated her vulva with his penis. On this
point, the military judge and CE had this exchange during her findings testi-
mony:
Q [Military Judge]. Help me understand how you can be so cer-
tain of that given your level of intoxication?
A [CE]. Because I remember thinking to look for his hands. I felt
inappropriate touching down there, but I wasn’t sure what was
going on. I remember looking for his hands and seeing both of
his hands free, both on the bed, one on either side of me, and I
remember seeing his face, so at that point I knew it was his pe-
nis.
Q. You used the word touching. What does that word mean to
you when you are describing that?
A. I felt skin on skin contact. I felt someone else other than me
touching down there.
Q. Touching down there or actually in the vaginal canal?

6 Appellant introduced evidence of a perception among some Air Force personnel that
CE was involved in an affair with Captain (Capt) NB. Both denied any romantic rela-
tionship or physical intimacy. CE testified she reported the gossip to her deployed hus-
band and assured him there had been no sexual conduct between her and Capt NB.

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A. At first I wasn’t sure. At first I felt inappropriate touching. It
took me a minute to kind of realize what was going on, and then
when I saw both of his hands, I realized, and I felt penetration.
Q. Is there any chance the penetration you were feeling was a
tongue or a finger?
A. I know that it was his penis. What I remember, it was his
penis inside of me.
Q. Okay. Any doubt in your mind?
A. No doubt in my mind.
From the vantage of CB and her other guests, nothing unusual occurred on
the night of CB’s birthday celebration or the next day when CE and her chil-
dren went home. CE was “incredibly drunk” and fell asleep almost immediately
after Appellant left the guestroom. She remembered CB and Capt NB enter
the guestroom to check on her sometime after Appellant departed. CB pulled
the covers off of CE, and immediately put them back on. CE heard CB remark,
“Nope, she’s done for the night.” In the morning, CE woke up and vomited, and
then she fell back to sleep for several more hours before returning home. Later
in the afternoon, CE posted a picture on Facebook that she took of all the adults
celebrating at the birthday party. CE captioned her posting, “I LOVE these
people to the moon and back!” CB posted a comment about the picture and
party: “Another successful night and a not so successful morning!” to which CE
responded: “Lol! Agreed! I’m still suffering. Just means it was a good night!!!”
That same afternoon, CE called her childhood girlfriend, BN, to talk about
what happened to her the previous night. CE sounded distraught and told BN
that she was unsure what to do about the incident. At trial, BN testified she
knew of the close relationship that developed between CE and CB and their
families, and BN recounted what CE told her about the incident with Appellant
in the guestroom. CE explained she had gone upstairs to check on one of the
children, and that Appellant “raped her” after he helped CE into bed and took
off her pants. During the call, CE was “very upset” and crying, almost “hyper-
ventilating.”
Not long after CE’s conversation with BN, CE decided not to tell others
what Appellant had done, even keeping the incident from her husband. It
weighed heavily on her what might happen if she told CB or her own husband.
CE “knew that if [she] said something a lot more people would [be] hurt” in-
cluding both families. She knew CB’s relationship with Appellant “would be
over” and “[Appellant] would lose his career.” She worried that CB “[didn’t]
have a college degree . . . so there would be no financial support” for CB’s fam-
ily. And if CE told her husband, he “would be incredibly upset” with Appellant,
and he would probably suggest she sever ties with CB.

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CE’s husband testified about a phone call he received from his wife at the
end of October 2014, one month before he redeployed and returned home. He
recalled CE “was begging [him] to come home immediately,” and “[i]t was very
hard to understand what she was saying because she was crying so much.”
Even at the end of the phone call, she still had not calmed down, and he could
not understand why she was so upset. After that phone call, he returned from
a flying mission to find 20 to 30 missed phone calls or texts from CE with “fran-
tic” messages that she needed to get in contact with him. “Every phone call
that [they] had after that, she would cry or she would be upset or say . . . ‘I
need you here. I can’t do this anymore. I don’t want to do this anymore.’”
In the days and months after the incident in question, CE resolved to keep
what happened from her husband and their circle of friends, testifying she
“thought that [she] could handle that, [and] that [she] could pretend that it
didn’t happen and just block it out.” On 2 November 2014, about a week after
the birthday party, the same circle of friends including Appellant got together
and watched movies. CE posted a comment about the get-together on her Fa-
cebook page, captioning it, “Scary movies with my fave people.” Appellant was
among the people whom she included in the post by tagging Appellant’s name.
CE also continued her relationship with CB who was her “rock” while CE’s
husband was deployed, and their children remained friends. CE remained close
to CB after CE’s husband redeployed, and they remained friends when Appel-
lant deployed and after CE’s husband deployed again the next year.
CE maintained her resolve for a couple of years after the birthday party.
CE testified how her relationship with her husband changed because of the
incident and her decision to keep it to herself. They “started arguing over little
things[,] and things that carried little weight kind of turned into bigger things
that became detrimental to [their] marriage.” CE felt her husband was not
emotionally supportive. She felt as though “the end of [their] relationship was
inevitable” and she “just didn’t see [the two of them] getting any better.” CE’s
husband testified about marital problems that were manifest in his lack of
trust of CE, and CE’s explosive anger when they argued about matters that
seemed trivial to him at the time, and that had not angered his wife before.
In contrast to the changes in CE and her husband’s relationship after the
incident, the friendship between the families continued as usual for two years.
That changed in October 2016 when the wives had a falling out after CB’s fam-
ily changed duty stations. CE was upset when Appellant and CB’s family left
without saying goodbye or giving CE and her family an opportunity to say fare-
well. CE testified she was upset because she
felt that [she] was holding a secret for [Appellant and CB’s] fam-
ily. The secret that [she] was holding could make their family
fall apart, and [she] just felt that [she] cared enough to put

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[her]self in that kind of position that [she] didn’t mind bending
over backwards for [her] friends if it meant that they were
happy. So, [she] was upset that [CB] couldn’t reciprocate that
simply just by coming over and saying goodbye.
CE kept what happened a secret for nearly two-and-a-half years. That too
changed in March 2017 when Appellant contacted CE via Facebook Messenger
after Appellant and his family were settled at his new duty station. CE was
surprised by this contact as she had no friendship with Appellant, and the last
time they communicated was before Appellant and his family moved away. CE
and CB were no longer speaking with each other and CE felt as though Appel-
lant “was checking on [her],” and she “was curious to know why.” CE and Ap-
pellant engaged in small talk about their families, but she did not then confront
Appellant about the incident at his wife’s birthday party. Around the same
time CE exchanged messages with Appellant, CE thought about telling her
husband about the incident at CB’s birthday party because they “were bicker-
ing a lot,” and it seemed as though “[t]here were things that [she] felt like he
just did not understand, and at this point, [she] felt like he was almost done
trying to understand [her].” CE also “felt like [she] was lying” to her husband
and “the weight of this lie . . . affect[ed] [their] marriage.” She explained that
the secret she kept was “a lie by omission, so [she] felt like [she] needed to say
something” to her husband.
In late March 2017, CE told her husband about the sexual assault after an
argument when they quarreled for several hours after he was late returning
home from the gym. CE’s husband explained at trial how “the argument just
snowballed from there.” He asked his wife as he had on many other occasions
when they argued, “What are you doing? What is going on here? What do you
need from me? I really don’t understand.” After the argument died down and
CE and her husband went to separate rooms to sleep, CE thought “[m]aybe if
[she would] tell him what happened, he will understand [her]. He will see why
things bother [her] or certain things upset [her] and maybe that will just open
his eyes to where [she was] at[,] and what [she] need[ed] from him.”
CE’s husband gave an account of what happened next. He related how his
wife approached him and “just started bawling.” CE said she needed to tell him
something, but first he had to “promise [her] that [he wouldn’t] hurt anyone.”
Her husband agreed, and CE told him that “[s]omeone hurt [her]” and then
explained “that [Appellant] raped her.” The morning after she disclosed the
incident to her husband, CE decided to make a restricted report of sexual as-
sault. Two or three weeks later, she changed the report to unrestricted and an
investigation by special agents of the Air Force Office of Special Investigations
(AFOSI) ensued.

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CE was crying and shaking and became physically ill when she made the
initial unrestricted report. She vomited multiple times in a trashcan as she
recounted what happened. The AFOSI agents suggested to CE that she partic-
ipate in a recorded phone call with Appellant, which she agreed to do in her
home with the agents and her husband present.
At trial, the Prosecution played the recorded conversation with Appellant. 7
CE confronted Appellant, stating she “kn[e]w that [Appellant] had sex with
[her] when [she] was drunk at [Appellant’s] house” on the night they celebrated
his wife’s birthday. CE described for Appellant her memory of events that un-
folded after CE went upstairs to check on the baby. The information she related
to Appellant over the phone was in all material respects the same as she later
described in her trial testimony. In response, Appellant repeatedly denied any
sexual contact with CE or helping her walk to his guestroom. Appellant told
CE he “[didn’t] remember being with [her] or around [her]” in the baby’s room
that night. He asserted that CE went upstairs because the baby was crying,
but claimed he remembered only “waking up in [the baby]’s room and then
going back to bed,” and not “hav[ing] any recollection of doing anything with
[CE] whatsoever.” 8 CE confronted Appellant with the words she heard him say
to her when she told him to stop. She told Appellant how she recalled Appellant
remark “that [CE] let [Capt NB] [have sex with her], like [Appellant] used it
almost as a justification” for Appellant to have sex with her as well.
Appellant repeatedly challenged CE’s memory and asserted that if the in-
cident happened as she described, then “it doesn’t make sense that [CE]
wouldn’t like scream to somebody or say get off [her] and like push [Appellant]
off.” Appellant questioned “if [the incident] was on [CB]’s birthday where there
had to [have] been other people, like how would [he] have even been able to do
that?” Appellant asserted “that—that just does not sound like something [he]
would ever do . . . . Like if that did happen, . . . [he was] truly sorry.” He told
her “[i]f that really did happen . . . [he didn’t] even know what to say.” Appel-
lant disavowed any recollection of telling CE when he left the guestroom that
his conduct with her that night was the “sexiest” thing he had ever done, or

7 The quotes from this and two subsequent phone conversations are from the transcrip-
tion of the playback of the recordings in the Prosecution’s findings case.
8 In the recorded conversation played in the Prosecution’s case, CE asked Appellant
what he remembered of that night. Appellant replied, “All I remember is waking up in
[the baby]’s room on the chair and then coming to bed like in the middle of the night.
Like that is it. That’s all I remember. I remember waking up in [the baby]’s room and
thinking how the f**k did I get in [the baby]’s room like on the chair. And then I came
in and went to bed with [CB] and then like woke up and, I mean, that was it.”

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words to that effect. When confronted Appellant replied, “Really? No, that
doesn’t sound like me.”
Within a half-hour after the phone call ended and after the AFOSI agents
left CE’s home, Appellant called CE back and gave a very different account of
his memory of the incident and his actions. CE recorded this second conversa-
tion using her husband’s phone, and the Prosecution introduced the recording
during CE’s testimony. Unlike before, Appellant explained he “truthfully re-
member[ed] every single detail” including the color of underwear CE was wear-
ing when he helped remove her pants after he assisted her to the guestroom.
Appellant volunteered at the beginning of the second conversation:
I have to admit that I do remember everything. I was just a little
embarrassed truthfully to kind of come out with it. But after,
you know, thinking it over, it behooves me so you get closure on
it as well. So, I do actually remember everything. We went up-
stairs in [the baby]’s room. She was crying. You were putting her
to bed, and then I helped put her to bed the rest of the way. And
then my—I got kind of mixed signals from you because we were
kind of touching each other, not like sexually, but just touching
each other. And then my whole point was to go put you to bed
because I knew you were drunk, and I went to take your pants
off and I went to go get shorts for you, but then after seeing your
body, I thought we were getting mixed signals and then I actu-
ally started eating you out.
Appellant explained how he performed oral sex on CE with his tongue and
also put his fingers in her vagina, and then they kissed; but he denied any
other sexual conduct. Appellant insisted he “thought [they both] had con-
sented,” later saying he knew that she was “drunk,” but he was “not going to
sit here and say that is consensual.” During the phone call, CE insisted that
she felt Appellant penetrate her vagina with his penis, 9 but Appellant was ad-
amant that she felt his fingers. Appellant maintained he was never on top of
CE and they did not have sexual intercourse, explaining that after he per-
formed oral sex they were kissing and he “went to go take [his] pants off,” but
stopped when CE told Appellant, “No, [CB] is downstairs.” At that point, Ap-
pellant told CE on the phone that he “started buttoning [his] pants back up,”
and was “glad [he] did, because [he] remember[ed] vividly at that moment . . .
[CB] and [Capt NB] came up the stairs” to check on CE. Appellant related that
he “ran into [the baby]’s room” and pretended to be asleep in a chair. It was

9CE told Appellant, “I honestly remember you like being on top of me and inside of
me. I remember like looking at your hands and seeing both of your hands free and you
were like inside of me.”

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then that Appellant realized he “could’ve gotten into some deep trouble, and
that is not who [he] was, so then [he] went to bed” because “[he] was so f**king
nervous about what [he] had almost just done.” Appellant acknowledged dur-
ing the phone call that before leaving the guestroom he told CE that his con-
duct with her was the “sexiest” thing he had ever done, explaining he said this
because CE was “very good-looking” and “very attractive,” and Appellant had
just read a book about how to please a woman.
The Prosecution introduced evidence of a third recorded phone conversa-
tion, one Appellant had with Capt NB six days after the two phone conversa-
tions between Appellant and CE. Capt NB testified that CE had recently dis-
closed to him that Appellant sexually assaulted her at the birthday party, and
that Capt NB might be contacted by AFOSI agents because he was at the party
when it happened. The AFOSI agents contacted Capt NB and he agreed to
participate in a recorded phone call with Appellant. At the beginning of the
conversation, both Appellant and Capt NB manifested awareness that CE had
recently confronted Appellant about a non-consensual sexual encounter on the
night of CB’s birthday party. Appellant told Capt NB that he “didn’t do any-
thing” with CE on the night of CB’s birthday party. Appellant related he told
CE “nothing happened” between him and CE when they recently spoke to each
other on the phone. Appellant also expressed considerable concern for his mar-
riage and career.
The Prosecution also introduced evidence of a fourth conversation Appel-
lant had about the incident in question after the three recorded phone calls.
Appellant’s then-squadron commander, Lt Col KM, testified about a conversa-
tion in his office that Appellant initiated. Appellant’s general description of
what happened tracked CE’s testimony at trial up to the point that Appellant
helped CE to the guestroom. Appellant explained he had hosted a party at his
home with a close-knit group of friends, including CE, and that he did not have
much to drink. At one point after he heard the baby monitor go off, CE went
upstairs to go check on one of his children, and Appellant later followed her
upstairs. Lt Col KM recalled that Appellant said he helped CE get to sleep, and
at one point helped CE change her clothes, and that was all that happened in
the guestroom.
At trial, the Prosecution presented CE’s testimony and the testimony of her
close friend, BN, who related how CE called her on the phone and told her that
Appellant “raped her” at a birthday celebration for Appellant’s wife. The Pros-
ecution also presented the testimony of CE’s husband who described the frantic
phone calls and messages he began receiving at his deployed location begin-
ning in late October 2014. Both CE and her husband testified about marital

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problems that began around this time. The Prosecution also presented Appel-
lant’s inconsistent statements to CE and Capt NB, and Appellant’s conversa-
tion with Lt Col KM.
Appellant defended the case principally on grounds that no sexual inter-
course took place and that either CE was a willing participant in the sexual
conduct that did occur, or that Appellant was reasonably mistaken as to CE’s
consent to engage in sexual activity. In this appeal, Appellant claims the evi-
dence showed he had a consensual sexual encounter with CE, specifically that
he performed oral sex on CE and penetrated her vulva with his fingers, but
that there was absolutely no penetration of her vulva by his penis. Appellant
maintains that CE’s recollection of events was unreliable if not entirely fabri-
cated, and claims “CE’s false report of rape may have saved her marriage.”
With this background and Appellant’s claims at trial and on appeal, we
consider the legal and factual sufficiency of the evidence.

II. DISCUSSION
A. Legal and Factual Sufficiency
1. Law
As charged, Appellant was convicted of sexual assault by bodily harm in
violation of Article 120(b)(1)(B), UCMJ, 10 U.S.C. § 920(b)(1)(B), which re-
quired the Prosecution to prove two elements beyond a reasonable doubt: (1)
that Appellant committed a sexual act upon CE by penetrating her vulva with
his penis; and (2) that Appellant did so by causing bodily harm to CE, to wit:
penetrating her vulva with his penis. See Manual for Courts-Martial, United
States (2016 ed.) (MCM), pt. IV, ¶ 45.b.(3)(b). “‘[B]odily harm’ means any offen-
sive touching of another, however slight, including any nonconsensual sexual
act.” MCM, pt. IV, ¶ 45.a.(g)(3). With regard to consent, the statute explains,
The term ‘consent’ means a freely given agreement to the con-
duct 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 or submission resulting
from the use of force, threat of force, or placing another person
in fear 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
shall not constitute consent.
MCM, pt. IV, ¶ 45.a.(g)(8)(A). The statute further explains that “[a] sleeping,
unconscious, or incompetent person cannot consent.” MCM, pt. IV,
¶ 45.a.(g)(8)(B). “Lack of consent may be inferred based on the circumstances

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of the offense. All the surrounding circumstances are to be considered in deter-
mining whether a person gave consent, or whether a person did not resist or
ceased to resist only because of another person’s actions.” MCM, pt. IV,
¶ 45.a.(g)(8)(C).
A Court of Criminal Appeals may affirm only such findings of guilty “as it
finds correct in law and fact and determines, on the basis of the entire record,
should be approved.” Article 66(c), UCMJ, 10 U.S.C. § 866(c). “Article 66(c) re-
quires the Courts of Criminal Appeals to conduct a de novo review of legal and
factual sufficiency of the case.” United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002) (citation omitted). Our assessment is limited to the evidence
produced at trial. United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993) (cita-
tions omitted).
“The test for legal sufficiency is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” United
States v. Robinson, 77 M.J. 294, 297–98 (C.A.A.F. 2018) (quoting United States
v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017)). “The term reasonable doubt, how-
ever, does not mean that the evidence must be free from conflict.” United States
v. Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (citing United States v.
Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986)), aff’d, 77 M.J. 289 (C.A.A.F. 2018).
“[I]n resolving questions of legal sufficiency, we are bound to draw every rea-
sonable inference from the evidence of record in favor of the prosecution.”
United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citations omitted).
The test for factual sufficiency is “whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, [we are ourselves] convinced of the [appellant]’s guilt beyond a
reasonable doubt.” United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). “In
conducting this unique appellate role, we take ‘a fresh, impartial look at the
evidence,’ applying ‘neither a presumption of innocence nor a presumption of
guilt’ to ‘make [our] own independent determination as to whether the evidence
constitutes proof of each required element beyond a reasonable doubt.’”
Wheeler, 76 M.J. at 568 (alteration in original) (quoting Washington, 57 M.J.
at 399).
2. Analysis
The focus of Appellant’s assignment of error is the reliability of CE’s
memory and her veracity when she described what happened in Appellant’s
guestroom. Appellant claims that CE’s testimony and other evidence is insuf-
ficient to support a conviction for sexual assault. To this end, Appellant gives
reasons why the evidence falls short of proof beyond a reasonable doubt: (1)
CE’s testimony is unworthy of belief because her consumption of alcohol led to

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significant parts of her memory of events being irretrievably lost, and details
of the incident were suggested to her by the AFOSI agents; 10 (2) CE’s interac-
tion with CB, Appellant, and their circle of friends in the days and months after
the incident in question belie her claim of sexual assault; (3) if CE admitted to
a consensual sexual encounter with Appellant, it would end two marriages and
break apart their families; (4) CE’s reporting to law enforcement was precipi-
tated by marital difficulties and an argument with her husband, after which
“the report fixed the marriage;” and (5) CE told the AFOSI agents that several
weeks after the incident in question, she went to a physician to be tested for a
sexually transmitted disease, but no evidence was produced at trial to corrob-
orate this contention.
The sufficiency of Appellant’s conviction for sexual assault turns on
whether the Prosecution proved beyond a reasonable doubt that CE’s recollec-
tion that Appellant penetrated her with his penis was correct, and that she did
not consent. Furthermore, if shown by some evidence, mistake of fact as to
consent is a defense to sexual assault. See Rule for Courts-Martial (R.C.M.)
916(j)(1). It requires that an appellant, due to ignorance or mistake, incorrectly
believed that another consented to the sexual conduct. See id. To be a viable
defense, the mistake of fact must have been honest and reasonable under all
the circumstances. See id.; see also United States v. Jones, 49 M.J. 85, 91
(C.A.A.F. 1998) (quoting United States v. Willis, 41 M.J. 435, 438 (C.A.A.F
1995)). The burden is on the Prosecution to prove beyond a reasonable doubt
that mistake of fact as to consent did not exist. See R.C.M. 916(b)(1); see also
United States v. McDonald, 78 M.J. 376, 379 (C.A.A.F. 2019).
We find a rational factfinder would have found beyond a reasonable doubt
the essential elements of sexual assault and that Appellant did not labor under
an honest and reasonable belief that CE consented to the charged sexual act.
CE’s memory and recall of the incident established the elements of the offense
and discount Appellant’s defense of ignorance or mistake. The substance and
timing of CE’s report to BN cast considerable doubt on Appellant’s argument
that CE contrived a false narrative of sexual assault nearly two-and-a-half
years later to mend her relationship with her husband and save their mar-
riage. The testimony of BN, with whom CE maintained a close relationship
since they were children, established that CE called her friend on the phone

10In his appeal, Appellant gives an example of the “help” CE received from an AFOSI
agent to recall what happened. An agent asked CE, “When [Appellant] was inside you,
where were his hands?” CE answered that question by asking the agent, “I think on
the bed?” Appellant claims CE adopted that answer, later testifying she knew that the
Appellant had penetrated her with his penis because she saw his face and his hands
were on the bed: “I remember thinking to look for his hands, and I remember seeing
both of his hands on either side of me. So, at that point, I knew what was happening.”

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and described how Appellant “raped her” at a birthday celebration for Appel-
lant’s wife the previous night. We find no genuine question was raised at trial
about BN’s veracity, or her recollection of what CE related to her and the dis-
tress BN heard in CE’s voice in that phone call. A rational factfinder would
also be convinced of Appellant’s guilt even if the behavioral changes CE’s hus-
band observed in his wife beginning in late October 2014 were caused by other
circumstances and not just Appellant’s actions with CE, especially because CE
began expressing a desperate need for her husband during the time the inci-
dent occurred.
Appellant made incriminating statements to CE and others before trial,
including some statements he may have intended to be exonerating. Appellant
maintained no penile penetration occurred when CE repeatedly challenged
him that it did. Appellant related two contrary accounts of the incident in ques-
tion in recorded phone calls with CE. Considered together, Appellant’s narra-
tives showed consciousness of guilt and raised substantial doubt about Appel-
lant’s honesty and the candor of his denials. At first, Appellant claimed no
memory “whatsoever” of interacting with CE upstairs in the nursery and disa-
vowed any contact with her later in his guestroom. After CE confronted Appel-
lant with her memory of the sexual assault, Appellant questioned why CE did
not scream and how his guests could be unaware of what happened if the inci-
dent happened as she described. A moment later, Appellant called CE back,
asserting he “remember[ed] everything” down to the color of CE’s underwear
when he helped remove her pants as she laid down to sleep. Appellant then
admitted to sexual acts with CE, which could lead a rational factfinder to con-
clude that Appellant committed the sexual assault in the manner that CE re-
lated in prior statements to BN, her husband, and agents of the AFOSI.
As between CE’s prior consistent statements and sworn testimony that suf-
fered from minor defects in perception and recall on the one hand, and Appel-
lant’s narratives that were laden with deceit on the other, a rational factfinder
could be convinced beyond a reasonable doubt of CE’s account of what hap-
pened and that Appellant was not mistaken as to consent. We have reviewed
the entire record of trial and conclude there were no material discrepancies in
any witness’s testimony. We discern no meaningful conflict in CE’s testimony
on the critical issues of penetration and consent. A reasonable factfinder could
have found CE was certain that she felt penetration by Appellant’s penis and
not his fingers.
A rational factfinder could also find from the circumstances immediately
prior to the sexual act that Appellant did not have CE’s freely given agreement
to sexual intercourse with Appellant, and thus the Prosecution proved bodily
harm beyond a reasonable doubt. We have considered the discrepancies noted
by Appellant, along with motives advanced by Appellant. Testimony “need not

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be completely consistent to still be sufficiently reliable to sustain a conviction,
and we do not confine our analysis to merely the testimony of a single witness
in performing our factual sufficiency review under Article 66, UCMJ.” United
States v. McFadden, No. ACM 38597, 2015 CCA LEXIS 520, at *11 (A.F. Ct.
Crim. App. 18 Nov. 2015) (unpub. op.); see also United States v. McElhaney, 50
M.J. 819, 832 (A.F. Ct. Crim. App. 1999) (concluding evidence factually suffi-
cient, in part, because the appellant’s wife corroborated his romantic relation-
ship with the victim notwithstanding the appellant’s claim that the victim’s
testimony was implausible and inconsistent).
While we have the independent authority and responsibility to weigh the
credibility of the witnesses in determining factual sufficiency, we recognize
that the trial court saw and heard the testimony. See United States v. Moss, 63
M.J. 233, 239 (C.A.A.F. 2006) (stating it is the members’ role to determine
whether testimony is credible or biased). Like the factfinder at trial, we weigh
the evidence in the record and determine whether a discrepancy in a witness’s
testimony—including a lapse in perception, memory, or recall—resulted from
an innocent mistake or a deliberate lie. See United States v. Goode, 54 M.J.
836, 844 (N.M. Ct. Crim. App. 2001).
Viewing the evidence in the light most favorable to the Prosecution, we find
beyond a reasonable doubt that a rational factfinder could have found Appel-
lant guilty of all the elements of the offense of sexual assault and that Appel-
lant had no mistake of fact as to consent, and that the evidence is legally suf-
ficient to support Appellant’s conviction. Having weighed the evidence in the
record and made allowances for not having personally observed the witnesses,
we also conclude the evidence is factually sufficient and are convinced of Ap-
pellant’s guilt beyond a reasonable doubt. Therefore, we find Appellant’s con-
viction both legally and factually sufficient
B. Timeliness of Appellate Review
Appellant claims that Tardif relief is warranted due to the violation of the
third Moreno standard. We decline to grant such relief.
1. Law
We review de novo whether an appellant has been denied the due process
right to a timely appellate review. Moreno, 63 M.J. at 135 (citations omitted).
A presumption of unreasonable delay arises when appellate review is not com-
pleted and a decision rendered within 18 months of a case being docketed. Id.
at 142. A presumptively unreasonable delay triggers an analysis of the four
factors laid out in Barker v. Wingo, 407 U.S. 514, 530 (1972): “(1) the length of
the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right
to timely review and appeal; and (4) prejudice.” Moreno, 63 M.J. at 135 (cita-
tions omitted). A presumptively unreasonable delay satisfies the first factor,

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but the Government “can rebut the presumption by showing the delay was not
unreasonable.” Id. at 142. Assessing the fourth factor of prejudice, we consider
the interests of “prevention of oppressive incarceration,” “minimization of anx-
iety and concern of those convicted,” and “limitation of the possibility that . . .
grounds for appeal, and . . . defenses . . . might be impaired.” Id. at 138–39
(citation omitted).
2. Analysis
Appellant’s case was originally docketed with the court on 10 December
2018. Rendering a decision after 10 June 2020 is therefore presumptively un-
reasonable. The reasons for the delay include the time required for Appellant
to file his brief on 14 May 2019 and the Government to file its answer on 25
July 2019. Appellant did not assert his right to a timely appellate review at
any time before the supplemental AOE was filed on 28 July 2020 and answered
on 31 August 2020. In that AOE, he made no specific claim of prejudice, and
we find none.
Finding no Barker prejudice, we also find the delay is not so egregious that
it “adversely affects the public’s perception of the fairness and integrity of the
military justice system.” See United States v. Toohey, 63 M.J. 353, 362
(C.A.A.F. 2006). As a result, there is no due process violation. Id.
Regarding Appellant’s specific claim to Tardif relief, we determine that no
such relief is warranted in the absence of a due process violation. See Tardif,
57 M.J. at 223–24; United States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App.
2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016). In Tardif, the United States Court of
Appeals for the Armed Forces recognized that “a Court of Criminal Appeals
has authority under Article 66(c) to grant relief for excessive post-trial delay
without a showing of ‘actual prejudice’ within the meaning of Article 59(a).” 57
M.J. at 224 (citation omitted). Furthermore, we as a service Court of Criminal
Appeals are required by Article 66(c), UCMJ, to determine which findings of
guilty and the sentence or part thereof “should be approved.” Article 66(c),
UCMJ; see Tardif, 57 M.J. at 224. Considering all the facts and circumstances
of Appellant’s case, we decline to exercise our Article 66(c), UCMJ, authority
to grant relief for the delay in completing appellate review.

III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).

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Accordingly, the findings and the sentence are AFFIRMED.

FOR THE COURT

CAROL K. JOYCE
Clerk of the Court

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