United States v. Drinkert

This opinion is subject to administrative correction before final disposition.

Before
GASTON, STEWART and HOUTZ
Appellate Military Judges

_________________________

UNITED STATES
Appellee

v.

Samuel D. DRINKERT
Construction Mechanic Second Class (E-5), U.S. Navy
Appellant

No. 201900275

Argued: 26 January 2021—Decided: 29 March 2021

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge:
Hayes C. Larsen

Sentence adjudged 4 June 2019 by a general court-martial convened
at Naval Station Norfolk, Virginia, consisting of officer and enlisted
members. Sentence approved by the convening authority: confinement
for 15 years and a dishonorable discharge.

For Appellant:
Mr. Robert A. Feldmeier, Esq. (argued)
Lieutenant Commander Kevin R. Larson, JAGC, USN (on brief)

For Appellee:
Lieutenant Gregory A. Rustico, JAGC, USN (argued)
Major Clayton L. Wiggins, USMC (on brief)

_________________________
 United States v. Drinkert, NMCCA No. 201900275
Opinion of the Court

PUBLISHED OPINION OF THE COURT

_________________________

HOUTZ, Judge:
Appellant was convicted, contrary to his pleas, of three specifications of
sexual assault, and one specification of indecent visual recording, in violation
of Articles 120 and 120c, Uniform Code of Military Justice [UCMJ], 10 U.S.C.
§§ 920, 920c (2012 & Supp. III 2016).
Appellant raises nine assignments of error [AOE], which we renumber as
follows: (1) the military judge abused his discretion when he declined to
suppress evidence from Appellant’s cellular phone; (2) the military judge
improperly admitted hearsay evidence; (3) the military judge improperly
excluded Appellant’s statements as hearsay; (4) Appellant received ineffective
assistance from his trial defense counsel; (5) the evidence is not factually
sufficient to support Appellant’s convictions; (6) the military judge abused his
discretion when he declined to release Appellant from pre-trial confinement;
(7) the record of trial was not served on Appellant; (8) Appellant’s trial
defense counsel were generally ineffective during discovery and at trial; and
(9) Appellant was denied due process when he was provided an inadequate
accounting of the personal property seized from his residence by law en-
forcement. 1
After careful consideration of the record of trial and the pleadings of the
parties, we find no prejudicial error and affirm.

I. BACKGROUND

Appellant’s convictions arise out of separate incidents involving two vic-
tims, his brother’s ex-girlfriend, Ms. Fox, 2 and a co-worker, Ms. William.
The incident involving Ms. Fox occurred in August 2017 when Ms. Fox
visited Appellant and his brother at their residence in Virginia Beach, Virgin-
ia. After an evening spent consuming alcohol and playing games, Appellant’s

1 We have considered Appellant’s sixth, seventh, eighth, and ninth AOEs, raised
pursuant to United States v. Grostefon, 112 M.J. 431 (C.M.A. 1982), and find them to
be without merit. United States v. Matias, 25 M.J. 356, 363 (C.M.A. 1987).
2All names in this opinion, other than those of the judges and counsel, are pseu-
donyms.

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Opinion of the Court

brother and Ms. Fox became sick and went to the bathroom to vomit. A short
time later Appellant went into the bathroom and assisted his brother to a
bedroom. Appellant then returned to the bathroom, found Ms. Fox kneeling
on the floor, and penetrated Ms. Fox’s vulva with his finger and attempted to
engage in sexual intercourse with her while she said “no” and resisted. At
that point Appellant assisted Ms. Fox to one of the vacant bedrooms and told
her he would leave her alone.
After being brought into the bedroom, Appellant’s brother testified that
“the next thing I remember was [Ms. Fox] screaming ‘no,’ and shortly after
that, [Appellant] came into my room and said he thinks that he tried to rape
her.” 3 A short time later Ms. Fox became enraged, yelled at Appellant, broke
household items, and later grabbed a kitchen knife and cut her own arm.
Appellant’s brother provided aid to Ms. Fox and Appellant called 911 for
emergency assistance. During the 911 call Appellant made incriminating
statements, including the statement, “I believe I tried to rape her.” 4 Appel-
lant made further admissions to the responding police officers and to the
detective who interviewed him later that morning, admitting that he pene-
trated Ms. Fox’s vagina with his finger and “probably should’ve stopped.” 5
Ms. Fox was taken to a hospital where she was interviewed and told investi-
gators about the assault.
The incidents involving Ms. William occurred several months later in
March and April 2018 at the same residence, where Ms. William, a co-worker
and friend of Appellant, spent a significant amount of time due to her unsta-
ble housing situation. On 30 March 2018, Appellant, Ms. William, and a
mutual friend were at the house consuming alcohol and socializing.
Ms. William became sleepy and woke up the next morning in Appellant’s bed
(when he brought her breakfast). 6 On 3 April 2018, Ms. William and Appel-
lant were again at Appellant’s residence drinking and socializing.
Ms. William eventually became tired and went to bed. While her memory
became hazy, she recalled being in Appellant’s bedroom prior to falling asleep
and awoke early the next morning with Appellant’s penis inside her vagina.
She feigned being asleep while Appellant ejaculated inside of her, cleaned her

3 R at 643-44.
4 Id. at 694.
5 Pros. Ex. 3.
6 This incident was the basis for one specification of sexual assault against Appel-
lant of which he was found not guilty.

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Opinion of the Court

with baby wipes, put her underwear on, and left for work. When Ms. William
confronted Appellant about the incident a few days later over a messaging
application, and told him she was avoiding him because “[y]ou raped me,”
Appellant initially replied, “What?” and “You don’t remember do you?” 7 She
then told him she did remember, including that he had “baby wipe [sic] and
put everything back how it was,” that he was “wrong,” and that she did not
want to see him again, to which Appellant responded, “I understand.” 8
On 16 April 2018, after Ms. William had provided a statement to the Na-
val Criminal Investigative Service [NCIS] alleging that Appellant had sexual-
ly assaulted her on 30 March and 4 April, five Virginia Beach Police officers
with the assistance of two NCIS agents executed a civilian search warrant at
Appellant’s residence. The warrant permitted law enforcement to search for
and seize evidence to include “cellular phone / electronics which can take
photographs an[d] any media storage devices, to include USB, disks, tablets,
laptop and desktop computers.” 9 The search warrant did not authorize
searching Appellant’s person.
When the search began, Appellant was not at his residence, as he was in
the process of being discharged from the hospital after nine days of involun-
tary mental health treatment at Naval Medical Center Portsmouth. At the
request of NCIS, immediately after being discharged, Appellant was escorted
from the Medical Center to the residence by two members of his command.
The NCIS agent was “certain” or “pretty sure [Appellant] had his phone on
him” when he asked the command to escort him to the residence. 10 Upon his
arrival, Appellant found his residence in the process of being searched and
was asked by NCIS to enter the residence. The NCIS agent placed his hand
on Appellant’s back, guided him to the door, and once inside, directed Appel-
lant to empty his pockets “for officer safety.” 11 Appellant removed his wallet
and cell phone from his pockets and was then guided to the kitchen where he
was directed to place his cell phone and wallet on a table and take a seat. At
that point, the NCIS agent and a detective from the Virginia Beach Police
explained the purpose of the search warrant, and the NCIS agent provided
Appellant with a permissive authorization for search and seizure [PASS]

7 Pros. Ex. 5.
8 Id.
9 App. Ex. LXXVIII at 2.
10 R. at 17.
11 Id.

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form for his cell phone. The NCIS agent read the PASS form to Appellant and
told Appellant he had a constitutional right to refuse the search. Appellant
then signed the PASS authorizing the search and seizure of his cell phone.
After seizing the cell phone and noticing it was locked, the NCIS agent asked
Appellant for the passcode which Appellant provided.
A forensic review of the phone revealed photographs taken on 3 April
2018, to include one depicting a finger penetrating Ms. William’s vagina.
There was another photo of Ms. William while she appeared to be asleep, a
photo of Ms. William topless, and search terms related to Ms. William.
Pursuant to the search warrant, law enforcement also seized Appellant’s
laptop computer. The forensic review of the computer revealed the same
photographs, as well as search terms related to Ms. William. Evidence
existing on the phone, but not the computer, included a specific search for
“[Ms. William] naked,” as well as searches related to whether one could get
pregnant on birth control. All the other evidence from the laptop computer, to
include the digital penetration photo, contained metadata which showed the
time and location where the photos were taken, as well as the device used to
take them.

II. DISCUSSION

A. Suppression Ruling
Prior to trial, Appellant moved to suppress any evidence obtained during
the search of his cell phone. After an Article 39(a), UCMJ, hearing, the
military judge denied the motion in a written ruling. In his findings of fact
and conclusions of law, the military judge determined that Appellant volun-
tarily consented to the search of the phone and that, even assuming he did
not, excluding the evidence would not result in appreciable deterrence of
future unlawful searches or seizures and the benefits of such deterrence did
not outweigh the costs to the justice system. 12
Appellant asserts that the military judge abused his discretion in denying
the motion to suppress. We review a military judge’s ruling on a motion to
suppress evidence for abuse of discretion and consider the evidence in the
light most favorable to the party that prevailed on the motion. 13 A military
judge abuses his discretion if the findings of fact upon which he predicates his

12 App. Ex. LXXVIII.
13 United States v. Blackburn, 80 M.J. 205, 210-11 (C.A.A.F. 2020).

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ruling are not supported by the evidence in the record, if he uses incorrect
legal principles, or if he applies the legal principles to the facts in a way that
is clearly unreasonable. 14 To warrant reversal, the decision must be “arbi-
trary, fanciful, clearly unreasonable or clearly erroneous.” 15
Evidence obtained as a result of an unlawful search or seizure by a gov-
ernmental agent is generally inadmissible against an accused if:
(1) the accused makes a timely motion to suppress or an ob-
jection to the evidence . . .
(2) the accused had a reasonable expectation of privacy in
the person, place, or property searched; . . . or the accused
would otherwise have grounds to object to the search or seizure
under the Constitution of the United States as applied to mem-
bers of the Armed Forces; and
(3) exclusion of the evidence results in appreciable deter-
rence of future unlawful searches or seizures and the benefits
of such deterrence outweigh the costs to the justice system. 16
Once the defense makes an appropriate motion or objection, the prosecution
bears the burden of proving the evidence was lawfully obtained. 17
The Fourth Amendment provides, “The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon proba-
ble cause, supported by Oath or affirmation.” 18 A search conducted pursuant
to a warrant or search authorization is presumptively reasonable. 19 As an
exception to the warrant requirement, “evidence of a search conducted
without probable cause is admissible if conducted with lawful consent.” 20 In
order to be lawful, consent must be given voluntarily. “Voluntariness is a

14 United States v. Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010).
15 United States v. Sullivan, 74 M.J. 448 (C.A.A.F. 2015) (citation omitted).
16 Mil. R. Evid. 311(a).
17 Mil. R. Evid. 311(d)(5)(A).
18 U.S. Const. amend. IV.
19 See United States v. Wicks, 73 M.J. 93, 99 (C.A.A.F. 2014) (citing Katz v. United
States, 389 U.S. 347, 357 (1967)).
20 Mil. R. Evid. 314(e)(1).

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question to be determined from all the circumstances.” 21 Courts look to six
non-exhaustive factors from United States v. Wallace 22 to determine the
voluntariness of consent:
(1) the degree to which the suspect’s liberty was restricted;
(2) the presence of coercion or intimidation; (3) the suspect’s
awareness of his right to refuse based on inferences of the sus-
pect’s age, intelligence, and other factors; (4) the suspect’s men-
tal state at the time; (5) the suspect’s consultation, or lack
thereof, with counsel; and (6) the coercive effects of any prior
violations of the suspect’s rights. 23

1. Voluntariness of Appellant’s Consent
In his written ruling, the military judge found the first four Wallace fac-
tors favored the Government and the last two were neutral. 24 Specifically, the
military judge found that (1) Appellant’s liberty was not restricted in any
significant manner; (2) there was no coercion or intimidation during law
enforcement’s interaction with Appellant; (3) Appellant had actual knowledge
of his right to refuse consent; (4) Appellant’s mental state favored voluntari-
ness because Appellant had been “deemed fit by medical personnel,” as
evidenced by his recent release from involuntary mental health care; (5) there
was no evidence that Appellant consulted with counsel prior to consent; and
(6) there were no prior violations of Appellant’s rights prior to the search. 25
We find that the military judge’s application of the Wallace factors to the
facts was clearly unreasonable. Regarding the first Wallace factor, we find
that Appellant’s liberty was restricted in a significant manner at the time he
signed the PASS. Upon his release from a nine-day involuntary stay at a
mental health facility, he was escorted by command members to the situs of
the search, ushered into his residence while the search was still ongoing, told
to empty his pockets, and directed to a chair in the kitchen. We agree with
Appellant that a servicemember in this scenario is not and would not feel free
to leave, since “[i]f Appellant faced no restrictions on his liberty, the escort

21 Mil. R. Evid. 314(e)(4).
22 66 M.J. 5 (C.A.A.F. 2008).
23 Id. at 9.
24 App. Ex. LXXVIII.
25 Id. at 5-6.

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would have been unnecessary.” 26 We also find compelling that Appellant’s
presence at his residence was specifically requested by the NCIS agent, who
presumed Appellant had his cell phone on his person, and Appellant was
escorted from a mental health facility approximately 20 miles away to his
residence an hour after being released from involuntary care.
The second, third, and fourth Wallace factors also favor Appellant. Con-
trary to the military judge’s findings, the evidence supports that the atmos-
pherics at the residence were both coercive and intimidating. The record
reflects that upon his arrival at his residence Appellant observed numerous
law enforcement personnel and according to the NCIS agent the Appellant
was “clearly confused.” 27 In Wallace, the court found that a coercive atmos-
phere clouded consent when there were three law enforcement officers
present. 28 Here there were seven, and it is again worthy of noting that
Appellant had just been subject to prolonged, involuntary mental health care
an hour prior to arriving at the house. Upon his arrival, Appellant was
immediately intercepted by NCIS, physically directed into the house, told to
empty his pockets of his wallet and cell phone, and escorted to the kitchen
where he was directed to take a seat. The NCIS agent and a civilian police
detective explained that they were at the residence with a search warrant,
which was presented to Appellant. 29 While the warrant did not authorize the
search of Appellant’s person, it did authorize the search and seizure of any
cell phones found in the residence.
In this context, we find credible Appellant’s testimony that when the
PASS form was placed in front of him to review and sign, he regarded the
search of his phone as a fait accompli, as opposed to having actual knowledge
of his right to refuse consent. Nor does Appellant’s release from involuntary
mental health care provide basis to automatically conclude his mental state
supported the voluntariness of his consent an hour later. Rather, when
combined with the circumstances of the ongoing search into which he was
intentionally transported, the fact that Appellant had just been released from
a mental health ward weighs against voluntariness.
Regarding consultation, or lack thereof, with counsel, we agree with the
military judge that Appellant was not afforded this opportunity; however,

26 Wallace, 66 M.J. at 10.
27 R. at 16.
28 Wallace, 66 M.J. at 10.
29 R. at 32, 43.

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given the context, we find clearly unreasonable the military judge’s determi-
nation that he did “not consider this factor present in this case or, at best, to
be neutral in its analysis.” 30 To the contrary, while not required by law, for a
suspect escorted directly from a week-long, involuntary mental health stay to
an ongoing search of his home by half a dozen law enforcement agents, we
conclude Appellant’s lack of consultation with counsel regarding whether to
consent to a search of his cell phone weighs against voluntariness.
Finally, we find that the sixth Wallace factor applicable here insofar as it
concerns the NCIS agent’s conscious decision to insert Appellant and his cell
phone into the residence at the time of the ongoing search. While it is permis-
sible for officers executing a search warrant “to detain the occupants of the
premises while a proper search is conducted” for purposes of officer safety,
facilitating completion of the search, or preventing flight, 31 this rule only
applies to occupants who are already on the premises. The Supreme Court
specifically held in Bailey v. United States 32 that where an occupant of a
premises subject to a search warrant is found in some remote place, law
enforcement may not detain that individual and search him incident to the
execution of the search warrant. The rationale behind the Bailey Court’s
decision is simple: where the occupant is far away from the situs of the
search, the occupant presents no risk of interfering with the search, harming
law enforcement, or fleeing haphazardly from the sight of the search. In other
words, the reasons supporting detention incident to execution of a search
warrant, as explained in Summers, 33 are non-existent.
Here, a similar reasoning drives our conclusion on this factor. Appellant
was brought from an inpatient mental health ward 20 miles away, where he
presented no risk whatsoever to the orderly execution of the search warrant
and was certainly no danger to law enforcement personnel. He was brought
to the situs of the search upon the request of NCIS, at which point he was
asked to empty his pockets. To the extent law enforcement’s request for him
to empty his pockets was due to any concern for officer safety, that was
brought about by NCIS’s own doing, and the agents had no reason to believe,
given where Appellant was coming from, that he possessed a weapon. Clear-
ly, this action was not justifiable under Bailey. Moreover, it is compelling that

30 Id. at 6.
31 Michigan v. Summers, 452 U.S. 692, 705 (1981).
32 568 U.S. 186 (2013).
33 452 U.S. at 702-03.

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the NCIS agent wrongfully created this “officer safety” concern apparently in
an effort to obtain the cell phone Appellant had on his person at the time the
search warrant was being executed at his residence. Thus, we find the sixth
Wallace factor weighs in Appellant’s favor and that the trial judge abused his
discretion when he found this factor neutral or inapplicable.
For the reasons stated above, we disagree with the Government’s reliance
on United States v. Olson. 34 In Olson, the appellant consented to a search of
her home after she was told to report to law enforcement spaces for an
interview. The court held the consent voluntary because, among other things,
the appellant “was not escorted to” or restrained at the situs of the interview
and thus was free to leave; was not coerced or intimidated because law
enforcement did not threaten or “bully” her; had “actual, not just inferential,”
knowledge of her right to refuse consent based on “some knowledge of law
enforcement tactics;” had a mental state enabling her “to make a rational
decision;” and while she “should have been advised of her rights” under
Article 31(b), had not suffered any prior violations of her rights. 35 Recogniz-
ing that application of Wallace is highly fact-dependent, several important
facts present here distinguish the instant matter from Olson. Appellant was
escorted from involuntary mental health care 20 miles away to his residence,
thrust into an ongoing search by seven law enforcement officers, directed to
go inside and empty his pockets of his wallet and cell phone as a safety
measure (which the NCIS agent created the need for by bringing him there),
and then directed to sit in a chair in the kitchen, where he was shown a
search warrant and presented a PASS form to sign. We find these facts
distinguishable from the more typical “invitation” of a service member to an
NCIS office for an interview presented in Olson.

2. Seizure of Cell Phone Pursuant to the Search Warrant
Because we have determined Appellant’s consent to search his phone was
not voluntary, we next look at whether the phone was lawfully obtained
under the authority of the search warrant. Specifically, we examine whether
law enforcement had the authority to search and seize the phone by virtue of
Appellant, who had the phone in his pocket, being on the premises that was
the subject of the warrant.

34 74 M.J. 132 (C.A.A.F. 2015).
35 Id. at 132-35.

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The search warrant authorized law enforcement to search for and seize
items of evidentiary value from Appellant’s residence, to include cell phones.
It did not authorize a search of Appellant’s person. The presumptive validity
of the search warrant was not challenged at trial; however, both sides agreed
the warrant only covered phones found inside the residence during the
search. As discussed above, the record indicates that once the search of the
home was underway, the NCIS agent requested that members of Appellant’s
command transport Appellant to the residence and was “pretty sure” 36
Appellant had his cell phone with him. Further, the NCIS agent testified that
once Appellant was in the house he immediately conducted an “officer safety”
search by asking Appellant to empty his pockets, which led to the discovery of
the phone on his person.
As discussed above, we find the NCIS agent’s action runs afoul of Bailey,
wherein the Supreme Court held the detention of occupants beyond the
immediate vicinity of the premises covered by a search warrant cannot be
justified under Michigan v. Summers. 37 In Summers the Court recognized
three important law enforcement interests that, taken together, justify the
detention of an occupant who is on the premises during the execution of a
search warrant: officer safety, facilitating the completion of the search, and
preventing flight. 38 However, in Summers and later cases, the occupants
detained were found on or immediately outside the premises at the time the
police officers executed the search warrant, which is a requirement under the
Court’s subsequent holding in Bailey.
Here, Appellant was approximately 20 miles away when he was brought
to the residence at the behest of NCIS. While it is not uncommon in the
military to have a suspect transported to NCIS in order to conduct an inter-
view (if, after being advised of his or her rights, the suspect elects to partici-
pate), here the intent was not to interview Appellant. Rather, it is clear from
the record that the reason for having Appellant transported to the residence
was to bring the cell phone to the situs of the search. Once there, Appellant
was told to empty his pockets and then directed into the kitchen, where the
phone became the sole focus of the interaction between law enforcement and
Appellant.

36 R. at 17.
37 Bailey, 568 U.S. at 201-02.
38 452 U.S. at 702–03.

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We conclude that obtaining the phone in this manner was unlawful under
Bailey. As there is nothing in the record to indicate that Appellant was asked
to, or did in fact, facilitate the search of his home, we find that when Appel-
lant was brought to the residence by members of his command at the NCIS
agent’s behest, there was no valid reason to inject Appellant into the resi-
dence during the ongoing search other than to bring him and his phone into
the purview of the warrant. As this is precisely the sort of governmental
action that Bailey prohibits, we conclude that the phone was not lawfully
obtained incident to the search warrant’s authorization to search and seize
evidence within Appellant’s residence. 39

3. Exclusion of the Cell Phone Evidence
Because we have determined that Appellant’s consent was involuntary
and the manner by which NCIS obtained the phone did not comport with
Bailey, 40 we next examine whether “exclusion of the evidence results in
appreciable deterrence of future unlawful searches or seizures and the
benefits of such deterrence outweigh the costs to the justice system.” 41 Here
we find that exclusion of the evidence would result in appreciable deterrence
and those benefits outweigh the costs to the justice system. Based on the
specific facts of this case, there is significant deterrent value in not putting
an imprimatur on the use of intimidating tactics to gain consent or strategic
maneuvering to bring evidence into an exception to the Fourth Amendment.
The cost to the justice system is de minimis by comparison, particularly
where, as here, the governmental behavior appears to have been intentional
as opposed to inadvertent. As such, we find that the military judge abused his
discretion when he ruled that the evidence obtained from the search of the
cell phone was admissible at trial pursuant to Mil. R. Evid. 311(a)(3).

39 In addition, having concluded Appellant’s consent to search was involuntary,
we conclude that asking Appellant to provide the phone’s passcode without first
advising him of his right against self-incrimination was unlawful under United
States v. Mitchell. 76 M.J. 413 (C.A.A.F. 2017); see also United States v. Robinson, 77
M.J. 303 (C.A.A.F. 2018) (holding that requesting a phone’s passcode without rights
advisement is lawful if voluntary consent to search the phone is first obtained).
40 Nor does the evidence support the phone was lawfully obtained through any
alternate basis, such the valid apprehension of a suspect based on probable cause or
pursuant to a reasonable suspicion of criminal activity. See Terry v. Ohio, 392 U.S. 1
(1968); Mil. R. Evid. 314(f)(2) (allowing a frisk for weapons when, based on specific,
articulable facts, a person is reasonably suspected to be armed and dangerous).
41 Mil. R. Evid. 311(a)(3).

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4. Prejudice and Independent Source
Having found error, we test for prejudice. “A constitutional error is harm-
less when it appears beyond a reasonable doubt that the error complained of
did not contribute to the verdict obtained,” meaning the error was “unim-
portant in relation to everything else the jury considered on the issue in
question.” 42
Although we conclude the military judge abused his discretion in admit-
ting the evidence found on the cell phone, we find beyond a reasonable doubt
that its admission had no prejudicial effect on Appellant. The “independent
source” doctrine permits the introduction of evidence initially discovered
during, or as a consequence of, an unlawful search, but later obtained inde-
pendently from lawful activities untainted by the initial illegality. 43 Such was
the case here. Almost all of the same evidence found on the cell phone was
lawfully obtained from an independent source: the laptop computer lawfully
seized from Appellant’s residence pursuant to the search warrant. At trial,
along with the images and search terms from the phone, the military judge
admitted into evidence the Government’s forensic examination report of the
laptop with the identical images and almost all the search terms found on the
phone. The only evidence admitted that did not exist on both the phone and
computer consisted of searches for “[Ms. William],” to include a specific
search for “[Ms. William] naked,” that occurred prior to the sexual assaults
and indecent recording, as well as searches made the morning after the
sexual assaults on Ms. William related to birth control and whether one could
get pregnant on birth control. All the other evidence from the laptop comput-
er, to include the digital penetration photo, contained metadata which
showed the time and location where the photos were taken, as well as the
device used to take them, all of which was consistent with Appellant taking
the photos as he was committing the offenses. 44

42 United States v. Hoffman, 75 M.J. 120, 128 (C.A.A.F. 2016) (citation and inter-
nal quotation marks omitted); see also UCMJ art. 59(a), 10 U.S.C. § 859(a) (requiring
error that “materially prejudices the substantial rights of the accused”).
43 Murray v. United States, 487 U.S. 533, 537-38 (1988).
44 Because we conclude the “independent source” doctrine permitted the introduc-
tion of the majority of the evidence found on the cell phone, we forego further analy-
sis regarding the potential that the “inevitable discovery” doctrine may also have
allowed the introduction of the cell phone evidence. As our superior court has ex-
plained,

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Based on the overwhelming body of evidence before the members, as dis-
cussed more fully below, we find beyond a reasonable doubt that the admis-
sion of search terms that existed only on the phone had no prejudicial effect
on the members, such that they were “unimportant in relation to everything
else the jury considered on the issue in question.”45

B. Prior Consistent Statements
Appellant asserts that the military judge erred when he admitted prior
statements of Ms. Fox and Ms. William under Mil. R. Evid. 801(d)(1)(B). This
Court reviews decisions to admit or exclude evidence for an abuse of discre-
tion. 46 “The abuse of discretion standard is a strict one, calling for more than
a mere difference of opinion. The challenged action must be arbitrary, fanci-
ful, clearly unreasonable, or clearly erroneous.” 47
Generally, out-of-court statements offered to prove the truth of the matter
asserted are considered hearsay and are inadmissible in courts-martial
unless the evidentiary rules provide otherwise. 48 However, prior consistent
statements made out of court are not hearsay and can be admitted as sub-
stantive evidence if the declarant testifies and is subject to cross-
examination, the statement is consistent with the declarant’s testimony, and
the statement is offered “(i) to rebut an express or implied charge that the
declarant recently fabricated it or acted from a recent improper influence or

The two doctrines, while similar, are separate exceptions to the ex-
clusionary rule. The inevitable discovery rule is said to be a variation
on the independent source rule. Thus, under the inevitable discovery
rule, the question is not whether the police did in fact acquire certain
evidence by reliance upon an untainted (or independent) source, but
rather whether evidence found because of a Fourth Amendment vio-
lation would inevitably have been discovered lawfully.
United States v. Eppes, 77 M.J. 339, 347 (C.A.A.F. 2018) (citation omitted).
45 Hoffman, 75 M.J. at 128.
46 United States v. Finch, 79 M.J. 389, 394 (C.A.A.F. 2020) (citation and internal
quotation marks omitted).
47 United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F. 2010) (citations and internal
quotation marks omitted).
48 Mil. R. Evid 801(c); Mil. R. Evid. 802.

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Opinion of the Court

motive in so testifying; or (ii) to rehabilitate the declarant’s credibility as a
witness when attacked on another ground.” 49

1. Ms. Fox’s Statements to Law Enforcement
After Ms. Fox testified during the Government’s case-in-chief, Appellant’s
trial defense counsel cross-examined her about her memory of the incident
and inconsistencies between her previous statements to law enforcement and
her testimony on direct examination. Specifically, trial defense counsel
questioned Ms. Fox about whether she told law enforcement that she heard
Appellant unbuckle his own shorts and the sound of his pants coming down
while in the bathroom. On redirect, the Government attempted to ask
Ms. Fox if she told law enforcement that Appellant pulled down her shorts
and underwear while in the bathroom. Trial defense counsel objected and the
military judge found that, although Ms. Fox was not questioned by trial
defense counsel about whether Appellant pulled down her shorts and under-
wear, it was permissible for Ms. Fox to answer the question under Mil. R.
Evid 801(d)(1)(B)(ii) in order to rehabilitate Ms. Fox’s credibility as a witness
when attacked on another ground. The military judge found that because the
trial defense attorney attacked the credibility of Ms. Fox with regard to
whether she told law enforcement about Appellant’s shorts, the Government
was permitted to introduce her prior statement to law enforcement that
Appellant pulled down her shorts for the limited purpose of rehabilitating her
credibility under Mil. R. Evid. 801(d)(1)(B)(ii).

2. Ms. William’s Statements after the Incidents
After the sexual assault, Ms. William petitioned the City of Virginia
Beach for a civilian protective order against Appellant, where she was placed
under oath and asked questions. At trial, after her testimony in the Govern-
ment’s case-in-chief, Appellant’s trial defense counsel cross-examined her
about the addition of facts to her testimony at trial that were not included in
her testimony at the protective order hearing, implying Ms. William fabricat-
ed portions of her testimony at trial. After Ms. William’s testimony, the
Government called as a witness Construction Mechanic Third Class [CM3]
Juliet, a former co-worker and roommate of Ms. William. Over trial defense
counsel’s objection, CM3 Juliet was permitted to testify about Ms. William’s

49 Mil. R. Evid. 801(d)(1)(B); see also United States v. Norwood, __ M.J. __, No.
20-0006, 2021 CAAF LEXIS 204, at *7 (C.A.A.F. Feb. 24, 2021) (citing Finch, 79 M.J.
at 394-95).

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 United States v. Drinkert, NMCCA No. 201900275
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statements to him about the sexual assaults approximately three weeks
before the civilian protective order hearing that were consistent with her trial
testimony. The military judge found that the testimony was permissible and
could be admitted as a prior consistent statement to rebut the express or
implied charge of recent fabrication, influence or motive under Mil. R. Evid.
801(d)(1)(B)(i) and to rehabilitate Ms. William’s credibility as a witness when
attacked on another ground under Mil. R. Evid. 801(d)(1)(B)(ii).

3. Analysis: The Prior Consistent Statements were Admissible
We find that the evidence was properly admitted. Ms. Fox’s prior state-
ment was admissible under Mil. R. Evid. 801(d)(1)(B)(ii). The declarant,
Ms. Fox, testified and was subject to cross-examination about her prior
statement to law enforcement about who pulled down her shorts, which was
consistent with her testimony at trial. The military judge properly found that
Ms. Fox’s credibility as a witness was attacked on a ground other than recent
fabrication or recent improper influence or motive when she was questioned
about the differences between her statements to law enforcement and her
testimony at trial, which challenged her memory—i.e., her recollection of the
sexual assault. Finally, her prior statements about the assault were relevant
to demonstrate that her memory about the incident was sound, as the im-
portant elements of her account remained the same over time. 50
Ms. William’s prior statements were also properly admitted under Mil. R.
Evid. 801(d)(1)(B). Appellant challenged Ms. William’s recollection of events
under a theory that Ms. William was too intoxicated to remember what
happened and therefore fabricated her statements and testimony during the
investigation and that any testimony based on her recollection lacked credi-
bility. Regarding the allegation of recent fabrication, the military judge took
note that trial defense counsel’s cross-examination of Ms. William focused on
differences between her testimony at a civilian protective order hearing and
her testimony at trial, 51 which implied that she developed a motive to fabri-
cate sometime after the civilian hearing. The prior consistent statements that
were admitted by the military judge were made to CM3 Juliet approximately
three weeks before the civilian hearing. The statements were thus offered to
rebut an express or implied charge of recent fabrication or improper motive

50 See generally United States v. Purcell, 967 F.3d 159, 196-97 (2d Cir. 2020) (dis-
cussing the analogous Fed. R. Evid. 801(d)(1)(B)(ii) and approving use of the rule to
rebut attacks on a declarant’s credibility or memory).
51 R. at 953-56.

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 United States v. Drinkert, NMCCA No. 201900275
Opinion of the Court

and preceded any motive to fabricate or improperly influence, thus satisfying
the requirements of Mil. R. Evid. 801(d)(1)(B)(i) and United States v. Finch. 52
Additionally, Ms. William’s prior statement was admissible under Mil. R.
Evid. 801(d)(1)(B)(ii), which permits use of a prior consistent statement when
a witness’ credibility is attacked on grounds of faulty memory. 53 The declar-
ant, Ms. William, testified and was subject to cross-examination about the
prior statement, which was consistent with her testimony at trial.
Ms. William’s credibility as a witness was attacked on a ground other than
recent fabrication or recent improper influence or motive when the Defense
questioning sought to establish he had a faulty memory. The prior consistent
statement thus served to rehabilitate her credibility on that ground by
showing that her memory of the incident was not faulty, as the Defense
maintained.

C. The Military Judge Properly Excluded Appellant’s Statements
Approximately a week after Ms. William reported the incidents, NCIS
asked an acquaintance of Appellant, Ms. Mike, to wear a concealed recording
device and to meet Appellant to record the interaction. Ms. Mike agreed, met
with Appellant at a restaurant while wearing the “wire,” and confronted
Appellant with Ms. William’s accusation of sexual assault. The conversation
occurred several days after an earlier interaction between Appellant and
Ms. Mike at Appellant’s house, where Appellant was “frantic” and told
Ms. Mike that Ms. William accused him of rape.
At trial, on cross-examination, Appellant’s trial defense counsel asked
Ms. Mike about her conversation with Appellant at the restaurant, including
asking, “And he didn’t confess to you, did he?” 54 The Government objected
and the military judge sustained the objection on the grounds of hearsay. On
appeal, Appellant argues the military judge erred because Appellant’s re-
sponse to the question would have been admissible as an “excited utterance.”
We find no error in the exclusion of this evidence. First, the military judge
properly concluded that Appellant’s response to the question was hearsay, as
it was being offered to prove the truth of the matter asserted. Second, the
evidence did not constitute an excited utterance, which is an exception to the

52 79 M.J. at 394.
53 See, e.g., United States v. Cox, 871 F.3d 479, 487 (6th Cir 2017).
54 R. at 1117.

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Opinion of the Court

rule against hearsay. 55 A statement must satisfy three criteria to be an
excited utterance: “(1) the statement must be spontaneous, excited, or impul-
sive rather than the product of reflection and deliberation; (2) the event
prompting the utterance must be startling; and (3) the declarant must be
under the stress of excitement caused by the event.” 56
Appellant’s statement fails to satisfy these criteria. The restaurant con-
versation occurred over a week after Appellant was accused of sexual assault
and several days after the earlier interaction between Appellant and
Ms. Mike at Appellant’s house where Appellant was “frantic” and told
Ms. Mike that Ms. William accused him of rape. Thus, any response by
Appellant to Ms. Mike’s question at the restaurant was the product of reflec-
tion and deliberation, as opposed to being spontaneous, excited, or impulsive.
Assuming the startling event was Ms. William’s allegation of assault, Appel-
lant had several days to digest the allegation by the time of the conversation
that occurred between Appellant and Ms. Mike at the restaurant, such that
he was no longer under the stress of any excitement caused by the allega-
tion. 57 Nor is there evidence that the conversation itself was “startling,”
which took place over lunch between friends. Accordingly, we conclude the
hearsay exception for excited utterances does not apply.

D. Ineffective Assistance of Counsel
At trial, Appellant’s civilian defense counsel attempted to question
Ms. Fox about mental health treatment she received at the hospital after
reporting the assault. Ms. Fox testified on cross-examination that she was
placed on “psych hold” during her stay at the hospital. 58 When asked whether
she received antipsychotic medication, Ms. Fox denied that she had. At that
point, the trial counsel objected to trial defense counsel’s line of questioning
on relevance grounds. During an Article 39(a), UCMJ session, trial defense
counsel told the court he had a good faith basis to believe Ms. Fox had been
prescribed antipsychotic medication; however, the military judge noted there
was no evidence the medication was prescribed prior to Ms. Fox’s statements
to authorities about the sexual assault. In response, Appellant’s counsel

55 Mil. R. Evid. 803(2).
56 United States v. Feltham, 58 M.J. 470, 474 (C.A.A.F. 2003) (citations omitted).
57 Id.; cf. United States v. Grant, 42 M.J. 340, 343 (C.A.A.F. 1995) (finding no ex-
cited utterance after two days).
58 R. at 606.

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 United States v. Drinkert, NMCCA No. 201900275
Opinion of the Court

conceded that the evidence was not relevant and did not pursue the issue.
The military judge instructed the members to disregard Ms. Fox’s answer to
the question regarding whether she was prescribed anti-psychotic medica-
tion.
Appellant asserts that his trial defense counsel’s concession regarding Ms.
Fox’s mental health treatment constitutes ineffective assistance of counsel.
He also asserts his trial defense counsel were ineffective when they failed to
move to admit the above-described statements by Appellant to Ms. Mike,
denying that he sexually assaulted Ms. William, under the residual hearsay
rule. We review claims of ineffective assistance of counsel de novo. 59
Our review uses the two-part test outlined in Strickland v. Washington. 60
“In order to prevail on a claim of ineffective assistance of counsel, an appel-
lant must demonstrate both (1) that his counsel’s performance was deficient,
and (2) that this deficiency resulted in prejudice.” 61 Our review “must indulge
a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” 62 When an ineffective assistance of
counsel claim is premised on trial defense counsel’s failure to move the court
to take some action, “an appellant must show that there is a reasonable
probability that such a motion would have been meritorious.” 63 “Failure to
raise a meritless argument does not constitute ineffective assistance.” 64
With respect to whether the deficiency resulted in prejudice, an accused
“must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” 65 The two-prong approach laid out in Strickland is not a
sequential test. We need not always determine “whether counsel’s perfor-

59 United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009) (citations omitted).
60 466 U.S. 668, 687 (1984).
61United States v. Green, 68 M.J. 360, 361-62 (C.A.A.F. 2010) (citing Strickland,
466 U.S. at 687).
62 Strickland, 466 U.S. at 689.
63 United States v. McConnell, 55 M.J. 479, 482 (C.A.A.F. 2001) (citation and in-
ternal quotation marks omitted).
64United States v. Napoleon, 46 M.J. 279, 284 (C.A.A.F. 1997) (quoting Boag v.
Raines, 769 F.2d. 1341, 1344 (9th Cir. 1985)).
65 Strickland, 466 U.S. at 694.

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 United States v. Drinkert, NMCCA No. 201900275
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mance was deficient before examining the prejudice suffered by the [Appel-
lant] as a result of the alleged deficiencies. If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that
course should be followed.” 66
We find Appellant’s trial defense counsel were not ineffective in this case.
With regard to the decision to concede the objection regarding Ms. Fox’s
mental health treatment, this court “will not second guess the strategic or
tactical decisions made at trial by defense counsel.” 67 “Defense counsel do not
perform deficiently when they make a strategic decision to accept a risk or
forego a potential benefit, where it is objectively reasonable to do so.” 68 We
find it was objectively reasonable for trial defense counsel to avoid the risk or
forego the potential benefit of further inquiry into Ms. Fox’s mental health
history. The evidence regarding whether Ms. Fox was prescribed anti-
psychotic medication after the incident was irrelevant. There is no evidence
in the record that Ms. Fox received any mental health diagnosis or treatment
prior to her statements to law enforcement about the incident, or that she
was on medication at the time of the incident. Appellant relies on United
States v. Eshalmi 69 to argue that records of psychiatric treatment are rele-
vant when they can be used to challenge an alleged sexual assault victim’s
perception of the sexual encounter; however, such reliance is inapposite
where the record contains no evidence of a diagnosis or treatment that
preceded either the incident or the report. 70
We further conclude Appellant’s trial defense counsel were not ineffective
in failing to assert the residual hearsay exception as a basis to admit Appel-
lant’s statements to Ms. Mike at the restaurant because the evidence was
inadmissible on that basis. A statement may be admitted as residual hearsay
when:
(1) the statement has equivalent circumstantial guarantees of
trustworthiness [to those found in Mil. R. Evid. 803 or 804];
(2) it is offered as evidence of a material fact; (3) it is more pro-

66 Id. at 689.
67 United States v. Paxton, 64 M.J. 484, 489 (C.A.A.F. 2007).
68 United States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012).
69 23 M.J. 12, 20 (CMA 1986).
70 See United States v. Sullivan, 70 M.J. 110, 116 (CAAF 2011) (affirming the ex-
clusion of evidence about medication history where “there was no evidence on the
record that showed [the victim] was on medication at the time of the incident”).

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 United States v. Drinkert, NMCCA No. 201900275
Opinion of the Court

bative on the point for which it is offered than any other evi-
dence that the proponent can obtain through reasonable ef-
forts; and (4) admitting it will best serve the purposes of these
rules and the interests of justice. 71
The residual hearsay exception thus has three criteria: “(1) materiality,
(2) necessity, and (3) reliability.” 72 It is to “be used very rarely and only in
exceptional circumstances.” 73
While Appellant’s answer to Ms. Mike’s question may have been material,
it was not sufficiently reliable because it lacked circumstantial guarantees of
trustworthiness equivalent to those found in Mil. R. Evid. 803 and 804. We
agree with the Government that Appellant’s implicit denial of sexual assault
allegations several days after first hearing about them is precisely the kind of
out-of-court statement the rule against hearsay is designed to prevent. As
there existed a strong motive to fabricate a response to Ms. Mike’s question,
this case is distinguishable from People v. Julian, 74 cited by Appellant, in
which the statement was an admission of guilt rather than a proclamation of
innocence. For much the same reasons we have determined the excited-
utterance exception under Mil. R. Evid. 803(2) does not apply, the circum-
stances here do not lend themselves to circumstantial guarantees of trust-
worthiness equivalent to those found in Mil. R. Evid. 803 or 804. Additional-
ly, the statements were not more probative on the point for which they were
offered than any other evidence Appellant could obtain through reasonable
efforts. Indeed, Appellant’s denial of the accusations was already in evidence
when earlier in the trial Ms. Mike testified that Appellant told her
Ms. William consented to the sexual acts. 75 Thus, even assuming the state-
ments were admissible, Appellant’s trial defense counsel did not perform
deficiently because it was objectively reasonable not to pursue admission of
the evidence in light of the previous testimony.

71 Mil. R. Evid. 807.
72 United States v. Kelley, 45 M.J. 275, 280 (C.A.A.F. 1996).
73 United States v. Czachorowski, 66 M.J. 432, 435 n.6 (C.A.A.F. 2008) (quoting
S. Rep. No. 93-1277 (1974), reprinted in 1974 U.S.C.C.A.N. 7051, 7066).
74 2012 Mich. App. LEXIS 2332 (Ct. App. Nov. 27, 2012).
75 R. at 1085-86.

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E. Appellant’s Convictions are Legally and Factually Sufficient
Appellant was convicted of three specifications of sexual assault, and one
specification of indecent visual recording in violation of Articles 120 and 120c,
UCMJ. 76 Appellant contests the factual sufficiency of his convictions. Alt-
hough he does not challenge the legal sufficiency of these charges, we are
mindful that Article 66(c), UCMJ, requires this court “to conduct a de novo
review of [both the] legal and factual sufficiency of the case.” 77
To determine legal sufficiency, we ask whether, “considering the evidence
in the light most favorable to the prosecution, a reasonable fact-finder could
have found all the essential elements beyond a reasonable doubt.” 78 In
conducting this analysis, we must “draw every reasonable inference from the
evidence of record in favor of the prosecution.” 79
In evaluating factual sufficiency, we determine whether, after weighing
the evidence in the record of trial and making allowances for not having
observed the witnesses, we are convinced of Appellant’s guilt beyond a
reasonable doubt. 80 In conducting this unique appellate function, 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 deter-
mination as to whether the evidence constitutes proof of each required
element beyond a reasonable doubt.” 81 Proof beyond a “[r]easonable doubt,
however, does not mean the evidence must be free from conflict.” 82

1. Violations of Article 120(b)(1)(B)
The non-consensual sexual acts Appellant was convicted of were digitally
penetrating Ms. Fox, digitally penetrating Ms. William, and penetrating
Ms. William with his penis. In order to sustain the convictions for sexual
assault by digital penetration, the Government must have proven beyond a
reasonable doubt that: (1) Appellant committed a sexual act (penetration of

76 10 U.S.C. §§ 920(b), 920(c) (2016).
77 United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).
78 United States v. Turner, 25 M.J. 324, 324-25 (C.M.A. 1987) (citing Jackson v.
Virginia, 443 U.S. 307, 319 (1979)).
79 United States v. Gutierrez, 74 M.J. 61, 65 (C.A.A.F. 2015).
80 Turner, 25 M.J. at 325.
81 Washington, 57 M.J. at 399.
82 United States v. Rankin, 63 M.J. 552, 557 (N-M. Ct. Crim. App. 2006).

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 United States v. Drinkert, NMCCA No. 201900275
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the vulva by Appellant’s finger) upon Ms. Fox and Ms. William; (2) he did so
by causing them bodily harm, i.e., without their consent; and (3) he did so
with the intent to abuse, humiliate, harass, degrade or arouse or gratify the
sexual desire of any person. 83 In order to sustain the conviction for sexual
assault by penile penetration the Government must have proven beyond a
reasonable doubt that: (1) Appellant committed a sexual act (penetration of
the vulva by his penis) upon Ms. William; and (2) he did so by causing bodily
harm, i.e., without her consent. The Government was also required to prove
beyond a reasonable doubt that the defense of mistake of fact as to consent
did not apply.
Regarding Appellant’s sexual assault of Ms. Fox by digital penetration,
the evidence introduced at trial included Appellant’s highly incriminating
admissions to law enforcement, medical personnel and his brother. Ms. Fox’s
testified that she did not consent to the sexual act and, consistent with her
prior statements, that after vomiting she was on her knees with her head
over the toilet when Appellant came up behind her and penetrated her vulva
with his finger. With respect to Ms. Fox’s subsequent mental health treat-
ment, based upon our review of the record we reject any argument that the
treatment raises a basis to question Ms. Fox’s veracity to the degree neces-
sary to set aside the conviction. Nor is Appellant’s claim of mistake of fact
supported by the record, even taking into account evidence of his intoxication
at the time. Similar to the facts in United States v. Guin, 84 the record shows
no interaction or conversation between Appellant and Ms. Fox that indicated
an invitation or agreement by Ms. Fox to engage in sexual activity with
Appellant. To the contrary, there evidence supports that Ms. Fox did not have
any existing or prior romantic interest in Appellant and had, in fact, ex-
pressed romantic interest in Appellant’s brother.
Regarding Appellant’s sexual assaults of Ms. William by means of digital
and penile penetration, two photos were entered into evidence that were
found on Appellant’s laptop computer. The first photo depicts a male finger
penetrating a vagina. The second photo shows what appears to be an image of
Ms. William asleep, wearing a bra and no underwear. The evidence estab-
lished that the photos were taken approximately an hour after Ms. William
testified she fell asleep and were transferred to his computer early the next
morning. Ms. William testified that she woke up while Appellant was pene-

83 Manual for Courts-Martial, United States [MCM], pt. IV, para. 45.b.(4)(b) (2016
ed.).
84 75 M.J. 588 (N-M. Ct. Crim. App. 2016) (unpublished).

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Opinion of the Court

trating her with his penis, froze, and then pretended to be asleep as he
ejaculated, cleaned her with baby wipes, put underwear on her, and then
went to work. When she confronted him about his actions via digital message,
he did not challenge her claims and stated her understood her desire not to
see him again. She further testified that when she woke up, she had no idea
she had been digitally penetrated (or that Appellant had photographed it).
She testified she did not consent to either sexual act. This evidence supports
a finding of guilty as to both incidents, notwithstanding evidence that
Ms. William was intoxicated on the evening the acts occurred and Appellant’s
statement to Ms. Mike that Ms. William had a history of having consensual
relations with him and then forgetting because of her intoxication.
We conclude a reasonable factfinder could have found all the essential el-
ements of all three offenses beyond a reasonable doubt. Further, having
reviewed the entirety of the record and after weighing the evidence anew,
making allowances for not having personally observed the witnesses, we too
are convinced beyond reasonable doubt of Appellant’s guilt.

2. Violation of Article 120(c)
In order to sustain the conviction for indecent visual recording the Gov-
ernment must have proven beyond a reasonable doubt that: (1) Appellant
knowingly recorded the private area of Ms. William; (2) the recording was
done without Ms. William’s consent; and (3) the recording was made under
circumstances in which Ms. William had a reasonable expectation of priva-
cy. 85 As noted above, the evidence supporting this charge included time-
stamped photographs from Appellant’s laptop that showed Ms. William
asleep on a bed and being digitally penetrated, which corroborated
Ms. William’s testimony that she was unaware of and did not consent to the
sexual act.
We conclude a reasonable factfinder could have found all the essential el-
ements of this offense beyond a reasonable doubt. Further, having reviewed
the entirety of the record and after weighing the evidence anew, making
allowances for not having personally observed the witnesses, we too are
convinced beyond reasonable doubt of Appellant’s guilt.

85 MCM, pt. IV, para. 45c.b.(2).

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Opinion of the Court

III. CONCLUSION

The findings and sentence are AFFIRMED.
Senior Judge GASTON and Judge STEWART concur.

FOR THE COURT:

RODGER A. DREW, JR.
Clerk of Court

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