United States v. Champion-Flores

This opinion is subject to administrative correction before final disposition.

Before
HOLIFIELD, STEWART, and HACKEL
Appellate Military Judges

_________________________

UNITED STATES
Appellee

v.

Miguel A. CHAMPION-FLORES
Sergeant (E-5), U.S. Marine Corps
Appellant

No. 202100088

_________________________

Decided: 30 September 2022

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judges:
Donald C. King (arraignment)
Melanie J. Mann (motions and trial)

Sentence adjudged 5 December 2020 by a general court-martial con-
vened at Marine Corps Base Hawaii, Kaneohe Bay, Hawaii, consisting
of enlisted members. 1 Sentence in the Entry of Judgment: reduction to
E-1, confinement for thirty-two months, and a dishonorable discharge. 2

1 Pursuant to Rule for Court Martial [R.C.M.] 1002(c), Appellant requested sen-
tencing by military judge.
2 Appellant was credited with 216 days of pretrial confinement credit.
 United States v. Champion-Flores, NMCCA No. 202100088
Opinion of the Court

For Appellant:
Lieutenant Commander Megan P. Marinos, JAGC, USN
Lieutenant Aiden J. Stark, JAGC, USN

For Appellee:
Lieutenant Commander Jeffrey S. Marden, JAGC, USN
Lieutenant John L. Flynn, JAGC, USN

Judge HACKEL delivered the opinion of the Court, in which Chief
Judge HOLIFIELD and Senior Judge STEWART joined.

_________________________

This opinion does not serve as binding precedent, but
may be cited as persuasive authority under
NMCCA Rule of Appellate Procedure 30.2.

_________________________

HACKEL, Judge:
Appellant was convicted, in accordance with his pleas, of two specifications
of violating a lawful order in violation of Article 92, Uniform Code of Military
Justice [UCMJ], and one specification of extramarital sexual conduct in viola-
tion of Article 134, UCMJ. 3 Appellant was also convicted, contrary to his pleas,
of three specifications of sexual assault in violation of Article 120, UCMJ, and
one specification of indecent conduct in violation of Article 134, UCMJ. 4
Appellant asserts six assignments of error [AOEs]: (1) the military judge
abused her discretion when she denied civilian defense counsel’s mid-trial mo-
tion to suppress unwarned statements made by Appellant to two other Marine
Sergeants [Sgt] shortly after the sexual assault; (2) civilian defense counsel
was ineffective for failing to file a motion or object before pleas to the admission
of Appellant’s unwarned statements as being in violation of Article 31(b),
UCMJ; (3) the military judge abused her discretion when she denied Appellant
the assistance of an expert consultant in forensic psychology; (4) trial counsel
committed prosecutorial misconduct by making improper arguments in closing

3 10 U.S.C. §§ 892, 934.
4 10 U.S.C. §§ 920, 934.

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Opinion of the Court

and rebuttal arguments; (5) Appellant’s sexual assault convictions are factu-
ally insufficient; and (6) Appellant’s right to a unanimous verdict was violated. 5
We find no prejudicial error and affirm.

I. BACKGROUND

Appellant joined 3rd Marine Regiment, Hawaii, in July 2019, where he was
assigned to the regimental communications section as a network administra-
tor. Appellant married his spouse in February 2019 and remained married
through the period relevant to this court-martial.
Lance Corporal [LCpl] Delta joined 3rd Marine Regiment in September
2019, where she was assigned to the regimental communications section as a
field radio operator. 6 This was her first duty station. LCpl Delta first met Ap-
pellant in November 2019 when he returned from a unit training exercise. Alt-
hough not assigned to the same work sections, Appellant and LCpl Delta be-
came acquainted through occasional contact at work, and they also served in
the same platoon under the larger communications section. Appellant was not
in LCpl Delta’s chain of command, nor did he and LCpl Delta have a mentor-
mentee relationship.
Although married, Appellant moved into the barracks in April 2020 at the
order of his command. He shared a barracks room with another sergeant in the
network shop. The barracks also housed a number of other communications
section Marines, including LCpl Delta.
Not long after moving in the barracks, the relationship between Appellant
and LCpl Delta changed. They began speaking more frequently and communi-
cating through social media and text messages. Their communications went
beyond those typical of seniors and subordinates, to the point when Appellant
sent LCpl Delta several flirtatious and sexually provocative messages. The
messages surprised LCpl Delta, who felt concerned about how her responses

5 We have reviewed Appellant’s sixth AOE and find it to be without merit in light
of our recent decision in United States v. Causey, 82 M.J. 574 (N-M Ct. Crim App.
2022). See United States v. Matias, 25 M.J. 356, 363 (C.M.A. 1987).
6All names in this opinion, other than those of Appellant, the judges, and appellate
counsel, are pseudonyms.

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 United States v. Champion-Flores, NMCCA No. 202100088
Opinion of the Court

would be perceived. She gave neutral “non-answers” to avoid “any kind of flash-
back potentially at work.” 7 For example, when Appellant messaged, “I’m curi-
ous now, would you want to [f***] me if you could?” LCpl Delta responded,
“[H]onestly [I]’m in a relationship right now and [I] don’t think it’d be appro-
priate for me to answer that.” 8
On 2 May 2020, Appellant encountered several Marines at the barracks
smoke pit, including LCpl Delta. Appellant and LCpl Delta spoke casually at
first, but their conversation moved to LCpl Delta’s medical issues and career.
Noticing LCpl Delta becoming emotional about this topic, Appellant asked if
she wanted to go somewhere more private to talk, so they took a walk. They
continued to talk about her medical issues, but also spoke about his relation-
ship issues. After some time they returned to the smoke pit and Appellant sug-
gested they watch a movie in his barracks room. She initially said it did not
sound like a good idea because of the COVID social distancing restrictions, but
Appellant assured her no one would get in trouble because he was a sergeant.
LCpl Delta agreed to watch a movie, but asked if she could bring a friend.
Before the movie, Appellant asked LCpl Delta to drive him to the store be-
cause he had been drinking and could not drive himself. LCpl Delta drove him
to the Marine Mart where he purchased snacks, soda, beer, bourbon, and te-
quila, all of which he brought back to his barracks room. There they joined
Appellant’s roommate, Sgt Sierra, and LCpl Delta’s friend, LCpl Lima, to
watch a movie.
During the movie Appellant offered tequila to LCpl Delta, who was under-
age. She refused because she did not want her senses to be impaired, nor did
she consider drinking to be a good idea in a new environment with people she
didn’t really know. 9
Appellant moved in and out of the room during the movie, speaking with a
family member on the phone. At some point Appellant stated that he had re-
ceived news that his grandmother had passed away. He became visibly emo-
tional. Sgt Sierra asked Appellant if he wanted to go outside and take a walk
with him, but Appellant refused. Instead, Appellant asked LCpl Delta to go on
another walk to talk about his grandmother and to clear his head. At this point
it was dark outside. LCpl Delta agreed to walk with him because, as she later

7 R. at 1172.
8 Pros. Ex. 3 at 4; R. at 1165-66 (Unless indicated otherwise, all grammar quota-
tions are original).
9 R. at 1191-92.

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Opinion of the Court

testified, “I had just seen this man cry in front of me. That’s a sergeant, you
know, I’d seen at a vulnerable moment and it’s like they tell us: despite rank,
Marines will be there for Marines.” 10
They walked to the dugout of the nearby softball field. On the way, Appel-
lant walked in such a manner as to block anyone’s view of LCpl Delta, telling
her that he did not want anyone to get the wrong idea. At the dugout, they sat
down and talked, but rather than discussing his grandmother, Appellant spoke
about how they would be compatible as a couple. Appellant tried to kiss LCpl
Delta, but she pulled away from him.
Appellant then steered the conversation to her injuries, telling LCpl Delta
that he had studied massage therapy. He asked if he could feel her spine align-
ment, which she allowed him to do. As Appellant touched LCpl Delta’s back
over her shirt, he reached under her clothes and touched her back underneath
her shirt. She was surprised by this, and told Appellant that it made her un-
comfortable. Appellant continued touching LCpl Delta, rubbing her back.
When he attempted to reach around and touch her breasts, she crossed her
arms over her chest to prevent him from doing so. LCpl Delta told Appellant
that she was uncomfortable, but she was nervous and did not speak loudly.
Over the next 15-20 minutes, Appellant’s massage became a sexual assault.
Appellant pulled LCpl Delta closer so that his chest pressed against her back.
He kept one hand under her shirt, put his other hand down the front of her
shorts, and touched her genitals, penetrating her vulva with his finger. LCpl
Delta again told Appellant she did not want to do this, but he continued to
touch her and told her to relax. Appellant then guided her into a position of
lying down on her stomach and pulled down her shorts and underwear. Appel-
lant touched her vulva and anus with his hand, penetrating both. Appellant
continued telling LCpl Delta to relax because she was very rigid. Appellant
then performed oral sex on LCpl Delta, placing his mouth on her anus and
vulva.
When the lights from a car in the parking lot shone across the softball field
in their direction, Appellant stood to block anyone’s view of LCpl Delta. LCpl
Delta immediately sat up and pulled up her shorts and underwear. Appellant
then sat down next to her, put his arm around her shoulders, and asked, “Do
you think I took advantage of you?” 11 She answered, “Yes.” 12

10 R. at 1194.
11 R. at 1210.
12 R. at 1210.

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 United States v. Champion-Flores, NMCCA No. 202100088
Opinion of the Court

LCpl Delta then texted her friend, Corporal [Cpl] Hotel, who came to the
dugout and left with her. As soon as they were away from Appellant, LCpl
Delta broke down crying and told Cpl Hotel what had happened. LCpl Delta
repeated her story to Sgt Papa and Sgt Purple a short time later. Sergeants
Papa and Purple then sought and located Appellant outside of his barracks.
They informed Appellant that he had been “accused of something,” but they
did not advise him of his rights under Article 31(b), UCMJ, before to speaking
with him about the allegations. 13 Appellant denied having touched LCpl Delta
except to massage her back.
A law enforcement investigation into the sexual assault allegation began
the next day. LCpl Delta submitted to a Sexual Assault Forensic Exam [SAFE]
at Tripler Army Medical Center and Naval Criminal Investigative Service
[NCIS] agents began questioning witnesses and gathering physical evidence,
including a beer can left at the dugout. The SAFE exam corroborated the de-
scribed sexual activity between LCpl Delta and Appellant. The beer can re-
vealed Appellant’s fingerprint.
When questioned by NCIS agents, Appellant initially denied any sexual
interactions with LCpl Delta and claimed that he had only consumed a single
beer on 2 May 2022. However, he later explained that he was intoxicated that
day and admitted to the sexual encounter with LCpl Delta, claiming that it
had been consensual. Appellant stated that, during the movie, he had spoken
with his grandmother about relative who had been diagnosed with cancer. Ap-
pellant also denied bringing any beer to the dugout.
Appellant consumed alcohol throughout the day of the sexual assault. At
trial, multiple witnesses described seeing him with alcohol or drinking alcohol.
The witnesses opined on the amount of alcohol he had consumed and his level
of intoxication. Witnesses described his slurred speech, drunken singing, and
unsteady walking. No witnesses agreed completely on Appellant’s level of in-
toxication. During his interview with NCIS agents less than 24 hours after the
sexual assault, Appellant described his own level of intoxication as “three or
four” out of ten. 14 During his interview with the NCIS agents, he provided a
cohesive and coherent account of his interactions with LCpl Delta throughout
the day and evening. In pretrial motions, the military judge denied Appellant’s
request for an expert consultant in forensic psychology to advise on the impact
of alcohol on Appellant’s mental faculties.
Additional facts necessary to address the AOEs are provided below.

13 R. 877.
14 App. Ex. XVIII at 63.

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 United States v. Champion-Flores, NMCCA No. 202100088
Opinion of the Court

II. DISCUSSION

A. Motion to Suppress Unwarned Statements
Appellant argues that his statements to Sgt Papa and Sgt Purple should
have been suppressed because the sergeants failed to advise him of his rights
under Article 31(b), UCMJ, and the military judge abused her discretion by
allowing the statements to be used as evidence at trial.

1. The Military Judge Abused Her Discretion
We review a military judge’s ruling on a motion to suppress evidence for an
abuse of discretion and consider the evidence in the light most favorable to the
party that prevailed on the motion. 15 A military judge abuses her discretion if
the findings of fact upon which she predicates her ruling are not supported by
the evidence in the record, if she uses incorrect legal principles, or if she applies
the legal principles to the facts in a way that is clearly unreasonable. 16 To con-
stitute an abuse of discretion, the decision must be “arbitrary, fanciful, clearly
unreasonable or clearly erroneous.” 17
Article 31(b), UCMJ, provides:
No person subject to this chapter may interrogate, or request
any statement from . . . a person suspected of an offense without
first informing him of the nature of the accusation and advising
him that he does not have to make any statement regarding the
offense of which he is accused or suspected and that any state-
ment made by him may be used against him in a trial by court-
martial. 18
“A statement obtained from the accused in violation of the accused’s rights
under Article 31 is involuntary and therefore inadmissible against the accused
except [when in the presence of counsel].” 19 A statement is also involuntary
when it is “obtained in violation of the self-incrimination privilege or the Due
Process Clause of the Fifth Amendment to the United States Constitution.” 20

15 United States v. Blackburn, 80 M.J. 205, 210-11 (C.A.A.F. 2020).
16 United States v. Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010).
17 United States v. Sullivan, 74 M.J. 448, 453 (C.A.A.F. 2015) (citation omitted).
18 Article 31(b), UCMJ.
19 R.C.M. 305(c)(1).
20 Military Rule of Evidence [Mil. R. Evid.] 304(a)(1)(A).

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Opinion of the Court

Motions to suppress statements made in violation of Article 31(b), UCMJ,
or the Constitution, “must be made by the defense prior to submission of a plea.
In the absence of such motion or objection, the defense may not raise the issue
at a later time except as permitted by the military judge for good cause shown.
Failure to so move or object constitutes a waiver of the objection.” 21
The Defense raised no pretrial motions challenging the admissibility of Ap-
pellant’s statements to Sgts Papa and Purple. However, during trial, midway
through Sgt Papa’s direct examination by trial counsel, CDC objected to the
admissibility of Appellant’s statements, requested an Article 39(a), UCMJ, ses-
sion to explain his objection, and moved the court not to admit the statements.
The military judge ordered the parties to submit briefs on the Government’s
notice requirement about the use of the statements and on their admissibil-
ity. 22 Following a recess, she considered the briefs and heard argument on the
issues of notice, waiver, good cause, and admissibility of the evidence.
In attempting to explain why he had good cause to raise his objection to the
evidence at this point in the trial, civilian defense counsel admitted that “[he]
did not anticipate that this particular evidence was going to be used and elic-
ited in the testimony.” 23 Although the military judge did not expressly indicate
that she found good cause to consider civilian defense counsel’s objection, she
nonetheless considered both parties’ briefs, permitted argument, and ruled on
the evidentiary objection. We are left to conclude that, although not explicitly
stated in the record, the military judge found good cause, and thus did not
consider the matter waived.
We next consider the military judge’s ruling on the admissibility of Appel-
lant’s statements. 24 In the Article 39(a), UCMJ, session, the military judge
quickly narrowed the issue to the admissibility of the statements, saying, “I
think the main issue here that I want to get at is whether or not the statements

21 Mil. R. Evid. 304(f)(1).
22 R. at 881-82; App. Ex. XXXV and XXXVI.
23 R. at 892-93.
24 Civilian defense counsel did not initially object when Sgt Papa testified that
Appellant said, “What are you guys talking about? I didn’t touch her.” R. at 877. He
objected seven questions later, when trial counsel asked about the exact language Ap-
pellant used, including any profanities. During the 39(a) session, civilian defense coun-
sel explained that he was “slow to object.” R. at 885. Since the military judge ruled that
all of the statements were admissible, we decline to consider whether civilian defense
counsel’s failure to make a timely objection forfeited the issue.

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are incriminatory and whether or not there was an obligation to advise.” 25 Ci-
vilian defense counsel argued that the statements did not have to be incrimi-
nating, because even non-incriminating statements could be used against Ap-
pellant to prove his consciousness of guilt and to show that he lied—“and that
in and of itself is some sort of incriminating statement.” 26 Trial counsel agreed
that the incriminatory nature of the statements was irrelevant to the argu-
ment; what mattered was the voluntariness of the statements, which required
Appellant to have been advised of his rights under Article 31(b), UCMJ.
The parties did not agree whether the sergeants were required to advise
Appellant of his rights under Article 31(b), UCMJ, prior to questioning him.
Civilian defense counsel explained that Sgt Papa was a person subject to the
UCMJ; that he suspected Appellant of committing an offense; that a reasona-
ble consequence of the questioning was that Appellant would make an incrim-
inating statement; and that the questioning did, in fact, elicit a statement.
Trial counsel emphasized the statements were made sergeant-to-sergeant in a
non-custodial setting and were thus not involuntary per Mil. R. Evid. 305. 27
Ultimately the military judge ruled from the bench as follows:
[T]he fact that I wanted a bench brief, the fact that I want (sic)
the government to provide one regarding notice was not for the
defense. It was for the Court, for me to know exactly what infor-
mation has been provided to opposing counsel and when that no-
tice was provided. The government met its burden in showing
that proper notice, in fact, had been made.
They also reminded the Court that they did file a bench brief
that further expanded on what they would be offering here at
trial. Given the statements involved in this as well, the fact that
they are—they’re not incriminating statements, that the accused
denied what happened. That has come out already at trial, the
denial. That was in Prosecution Exhibit 2.
It is probative, on that matter, that the government is now cor-
roborating that statement. It’s highly probative to that. There
was a pre-trial motion with plenty of opportunity and notice.

25 R. at 886.
26 R. at 887-88.
27 R. at 888-90.

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Therefore, the Court finds that the evidence is – that its proba-
tive value outweighs any unfair prejudice. Therefore, the de-
fense motion is denied. 28
Following this ruling, trial counsel advised the military judge that Sgt Pur-
ple would also be testifying about other statements made by Appellant at the
same time that he and Sgt Papa confronted him. Civilian defense counsel re-
newed his objection to this testimony, which the military judge overruled. Sgts
Papa and Purple then provided additional testimony. On cross-examination
Sgt Papa clarified: “So exactly what he said was, ‘What the [f***] are you talk-
ing about. I didn’t [f***ing] touch her. You guys know me.’” 29 Sergeant Purple
testified that when he and Sgt Papa confronted Appellant, Appellant stated,
“If anyone is saying anything against me, I’m gonna talk to my lawyer.” 30 Then,
after being told that they just wanted his side of the story, Appellant said that
he and LCpl Delta had been in contact that day, that her back was hurting,
and that he told her “that he had studied or had known some massages or
physical therapy that could help.” 31 Appellant asked LCpl Delta “if it was ok,
and she said yes; then, that [Appellant] showed her the techniques, and she
was fine with it.” 32
An admission is a “self-incriminating statement falling short of an acknowl-
edgment of guilt, even if it was intended by its maker to be exculpatory.” 33
Sergeant Purple’s testimony revealed several admissions by Appellant, includ-
ing that he had touched LCpl Delta. Similarly, Sgt Papa’s testimony that Ap-
pellant denied touching LCpl Delta could be considered as evidence of his con-
sciousness of guilt. Consciousness of guilt evidence may be used to show
“awareness of an accused that he or she has engaged in blameworthy con-
duct.” 34 We find that the military judge mistakenly believed that only state-
ments that are directly incriminating are subject to suppression.

28 R. at 893-94 (emphasis added).
29 R. at 909.
30 R. at 958.
31 R. at 930.
32 R. at 930.
33 Mil. R. Evid. 304(a)(1)(C).
34 United States v. Quezada, 82 M.J. 54, 59 (C.A.A.F. 2021) (quoting Black’s Law
Dictionary 379 (11th ed. 2019)).

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At the time she made her ruling, the military judge had a number of con-
flicting facts to consider in determining whether Appellant’s statements were
involuntary. First, from earlier testimony, the military judge was informed
that Appellant’s friend, Cpl Juliet, had already put Appellant on notice of his
alleged misconduct before being confronted by the two sergeants. 35 Almost im-
mediately after the sexual assault, LCpl Delta informed Cpl Hotel, who texted
his roommate, Cpl Juliet, about LCpl Delta’s allegations. Cpl Juliet then left
his room, sought out Appellant, and spoke to him about the alleged assault.
Sergeants Papa and Purple found Appellant a short time later with Cpl Juliet,
whereupon they dismissed Cpl Juliet and confronted Appellant. Second, Ap-
pellant was confronted by fellow sergeants, not law enforcement officials or
higher-ranking officers or noncommissioned officers, though Sgt Purple was
serving in a senior billet as the acting staff noncommissioned officer. Third,
LCpl Delta told both sergeants that Appellant had assaulted her moments be-
fore they confronted him, so they had reason to suspect him of having commit-
ted an offense. Fourth, although both sergeants were familiar with the concept
of Article 31(b) rights, neither advised Appellant of those rights, even though
their purpose in confronting him was to figure out what happened, get his side
of the story, and gather information to make a report up the chain of command.
Fifth, both sergeants opened their confrontation with Appellant by telling him
that he was “accused of something.” 36 And finally, the issue of whether some of
Appellant’s statements were spontaneous or the result of questioning was
never completely resolved.
“The purpose of informing a suspect or accused of the nature of the accusa-
tion is to orient him to the transaction or incident in which he is allegedly in-
volved.” 37 It is not necessary that a servicemember being questioned be in-
formed of “each and every possible charge under investigation,” as long as the
servicemember is put on notice of the “general nature of the allegation, to in-
clude the area of suspicion that focuses the [servicemember] toward the cir-
cumstances surrounding” the alleged misconduct being investigated. 38 Here it
appears that Appellant was on notice of alleged misconduct from his friend,
Cpl Juliet, the Marines questioning him, or both.

35 R. at 825-27, 908, 910, 956-57; 959.
36 R. at 877.
37 United States v. Rice, 29 C.M.R. 340, 342 (C.M.A. 1960).
38 Id. (citations omitted).

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On these facts, which paint an incomplete picture, we see the question of
the voluntariness of Appellant’s statements as tilting towards involuntary. We
understand why such a question is better developed in a pretrial motion, giving
the military judge ample time to properly research and consider the issue prior
to articulating her findings of facts and application of law in a ruling. Here
such an analysis would have helped us in our review. Unfortunately, even con-
sidering the deference we owe to the military judge under the abuse of discre-
tion standard, we see these critical facts and application lacking in her ruling.
“An abuse of discretion occurs when a military judge either erroneously applies
the law or clearly errs in making his or her findings of fact.” 39 We therefore
find that the military judge abused her discretion in not granting the defense
motion to suppress Appellant’s statements. Additionally, we assume without
deciding that Appellant’s statements to Sgt Papa and Sgt Purple were invol-
untary within the meaning of Mil. R. Evid. 304.

2. Harm Analysis
Although involuntary within the meaning of Mil. R. Evid. 304, the admis-
sion of Appellant’s statements to Sgt Papa and Sgt Purple did not prejudice
Appellant’s substantial rights.
As our superior court noted in United States v. Evans, “when an Article
31(b), UCMJ, violation occurs, the appropriate test for prejudice depends on
the facts and circumstances presented.” 40 A two-part test applies:
If the Article 31(b), UCMJ, violation []implicates the consti-
tutional rights of the accused, then the harmless beyond a rea-
sonable doubt test applies. But if the Article 31(b), UCMJ, viola-
tion stands alone as a statutory violation (that is, if the violation
does not also present a constitutional violation) then the noncon-
stitutional test for prejudice—spelled out in United States v.
Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999)—applies. 41
In examining whether the failure to inform an accused of his rights under
Article 31(b), UCMJ, violates his constitutional rights, we consider the nature

39 United States v. Becker, 81 M.J. 483, 488 (C.A.A.F. 2021) (quoting United States
v. Donaldson, 58 M.J. 477, 482 (C.A.A.F. 2003)).
40 United States v. Evans, 75 M.J. 302, 303 (C.A.A.F. 2016).
41 Id.

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of the interrogation. 42 “Whether a set of facts gives rise to a custodial interro-
gation under Miranda depends upon whether a suspect reasonably believed
that his freedom of action was curtailed to a degree associated with formal
arrest.” 43 In making this determination we consider “(1) whether the person
appeared for questioning voluntarily; (2) the location and atmosphere of the
place in which questioning occurred; and (3) the length of questioning.” 44
The conditions of the questioning do not implicate Appellant’s constitu-
tional rights. Sergeants Papa and Purple—Appellant’s peers in the regimental
communications section—sought out and confronted Appellant near the bas-
ketball court outside of his barracks building. He was not under arrest, though
Sgt Papa did tell him that he needed to “stick around.” 45 Their discussion was
brief—only a few minutes. And after their conversation, Appellant returned to
his barracks room and went to bed. We find that these circumstances did not
lead Appellant to reasonably believe that his freedom of action was so curtailed
as to be associated with formal arrest. We therefore find that Appellant was
not subject to custodial interrogation by Sgts Papa and Purple, and thus suf-
fered no violation of his Fifth Amendment rights.
We next test for prejudice associated with the statutory violation of Appel-
lant’s rights under Kerr, evaluating “(1) the strength of the Government’s case,
(2) the strength of the defense case, (3) the materiality of the evidence in ques-
tion, and (4) the quality of the evidence in question.” 46
Here, the Government’s case was strong. Per her testimony, LCpl Delta
expressed, both verbally and non-verbally, her unwillingness to be touched by
Appellant. She repeatedly told Appellant that she did not feel comfortable and
that she did not want him to touch or penetrate her. She pulled away from
Appellant after he grabbed her face and pulled her towards him. Several wit-
nesses testified that LCpl Delta immediately reported the sexual assault and
was visibly distraught and emotional immediately after the assault. Prior to
the assault, Appellant had expressed his sexual interest in LCpl Delta, which
she did not reciprocate. Furthermore, Appellant corroborated the details of the
sexual acts during his interview with law enforcement, while claiming that

42 See United States v. Chatfield, 67 M.J. 432, 437 (C.A.A.F. 2009) (citing Miranda
v. Arizona, 384 U.S. 436, 444 (1966)).
43 Evans, 75 M.J.at 305-306 (internal citation and punctuation omitted).
44 Id. at 306 (quoting Chatfield, 67 M.J. at 438).
45 R. at 909.
46 Kerr, 51 M.J. at 405 (citing United States v. Weeks, 20 M.J. 22, 25 (CMA 1985)).

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LCpl Delta had consented to the acts. 47 Immediately after the sexual assault,
Appellant informed his friend, Cpl Juliet, that he had touched LCpl Delta, but
he later changed his story when speaking to NCIS agents, initially denying
touching LCpl Delta and then admitting he engaged in sexual conduct with
her. Finally, the Government presented evidence that Appellant lied about not
bringing a beer can to the dugout, about his grandmother’s death, and when
he told LCpl Delta that Sgt Papa had told Appellant to mentor her.
Next, Appellant’s case was not strong. Appellant claims he was foreclosed
from presenting the strongest possible case, but he fails to explain why the
statements from Sgt Papa and Sgt Purple prevented him from presenting a
stronger case. Appellant called five witnesses, and his defense focused on ar-
guing that even if LCpl Delta did not consent to the sexual acts, Appellant
reasonably believed that she consented. As explained above, Appellant’s de-
fense was undermined by other strong evidence, only some of which served to
diminish his credibility as a result of his post hoc denials.
Finally, we find that this analysis turns on the third and fourth factors.
The improperly admitted statements were not material because they were cu-
mulative to other evidence already admitted. Appellant’s own denials and ad-
missions to NCIS agents, which came into evidence as Prosecution Exhibit 2,
without objection, and prior to the testimony of the two sergeants. In light of
the overlap in testimony and evidence, we are persuaded that Appellant’s im-
properly admitted statements to Sgts Papa and Purple were not qualitatively
significant and did not prejudice Appellant’s case.
We conclude, therefore, that the prejudicial effect of the statements was
minimal. Had Appellant’s statements to Sgts Papa and Purple been sup-
pressed, we are convinced that the remaining evidence would have been ade-
quate to overcome its absence. Having considered all of the Kerr factors, we
find that the admission of Appellant’s unwarned statements to Sgt Papa and

47Appellant did not claim at trial—and does not now—that his interview with law
enforcement was obtained in violation of his Article 31(b), UCMJ, rights despite it hav-
ing occurred after his statements to Sgts Papa and Purple and despite the lack of evi-
dence that a cleansing warning was given. “[T]he absence of such [a cleansing warning]
is not fatal to a finding of voluntariness.” United States v. Cuento, 60 M.J. 106, 109
(C.A.A.F. 2004). Nonetheless, we have reviewed the totality of the circumstances sur-
rounding Appellant’s interview with law enforcement and are satisfied that his state-
ments to NCIS agents were voluntary. See United States v. Brisbane, 63 M.J. 106, 114
(C.A.A.F. 2006) (listing factors to be taken into account when determining the volun-
tariness of a statement).

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 United States v. Champion-Flores, NMCCA No. 202100088
Opinion of the Court

Sgt Purple was harmless and did not materially prejudice Appellant’s substan-
tial rights.

B. Ineffective Assistance of Counsel Claim
Appellant claims that his civilian defense counsel was ineffective for failing
to object before pleas to the admission of Appellant’s statements to Sgts Papa
and Purple, which Appellant alleges were taken in violation of his Article 31(b)
rights.
We review claims of ineffective assistance of counsel de novo. 48 To prevail
on such a claim, “an appellant must demonstrate both (1) that his counsel’s
performance was deficient, and (2) that this deficiency resulted in prejudice.” 49
An appellant bears the “burden of establishing the truth of factual matters
relevant to the claim.” 50 Only after an appellant has met his burden and has
demonstrated both deficiency and prejudice can we find in the appellant’s favor
on an ineffective assistance of counsel claim. 51 Furthermore, “it is not neces-
sary to decide the issue of deficient performance when it is apparent that the
alleged deficiency has not caused prejudice. 52
We resolve this issue on the prejudice prong of the Strickland’s analysis.
Appellant “must demonstrate a reasonable probability that, but for counsel’s
deficient performance the result of the proceeding would have been different.” 53
“The question is whether there is a reasonable probability that, absent the er-
rors, the factfinder would have had a reasonable doubt respecting guilt.” 54 A

48 United States v. Cooper, 80 M.J. 664, 672 (N-M. Ct. Crim. App. 2020).
United States v. Green, 68 M.J. 360, 361-62 (C.A.A.F. 2010) (citing Strickland v.
49

Washington, 466 U.S. 668, 687 (1984)) (other citation omitted).
50 Denedo v. United States, 66 M.J. 114, 128 (C.A.A.F. 2008).
51 Cooper, 80 M.J. at 672.
52 United States v. Bradley, 71 M.J. 13, 16 (C.A.A.F. 2012). See also, Strickland,
466 U.S. at 697. (“If it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice . . . that course should be followed.”).
53 Strickland, 466 U.S. at 694.
54 Id. at 695.

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 United States v. Champion-Flores, NMCCA No. 202100088
Opinion of the Court

reasonable probability must be “sufficient to undermine confidence in the out-
come. That requires a substantial, not just conceivable, likelihood of a different
result.” 55
Having already found that the admission of Appellant’s unwarned state-
ments to Sgts Papa and Purple were harmless, we find that Appellant has not
shown a reasonable probability that, but for civilian defense counsel’s errors,
the members would have found reasonable doubt as to Appellant’s guilt.

C. Expert Consultant in Forensic Psychology
Appellant asserts that the military judge erred in denying the Defense’s
request for expert assistance from a forensic psychologist.
We review a military judge’s denial of a request for expert assistance for an
abuse of discretion. 56 A military judge abuses her discretion if: (1) her findings
of fact are not supported by the evidence; (2) she uses incorrect legal principles;
or (3) her application of the correct legal principle to the facts is clearly unrea-
sonable. 57
On such motions to compel, the accused has the burden of establishing a
reasonable probability that an expert would be of assistance to the defense and
that the denial of expert assistance would result in a fundamentally unfair
trial. 58 To demonstrate necessity, the request must show: (1) why the expert is
needed; (2) what the expert assistance will accomplish; and (3) why the defense
would be unable to gather and present the evidence that the expert assistance
would be able to develop. 59
In a pretrial motions session, Appellant requested that the military judge
order the appointment of a forensic psychologist to “advise the Defense on
whether, based on the Accused’s intoxication level at the time of the alleged
misconduct, he could have formed the specific intent to act.” 60 Appellant was
charged with three specifications of sexual assault, two of which alleged that
he acted with “an intent to abuse, humiliate, and degrade LCpl Delta, and to

55Bradley, 71 M.J. at 16 (quoting Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011))
(internal punctuation omitted).
56 United States v. Bresnahan, 62 M.J. 137, 143 (C.A.A.F. 2005).
57 Ellis, 68 M.J. at 344.
58 United States v. Freeman, 65 M.J. 451, 458 (C.A.A.F. 2008).
59 United States v. Gonzalez, 39 M.J. 459, 461 (C.M.A. 1994).
60 App. Ex. V at 1.

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 United States v. Champion-Flores, NMCCA No. 202100088
Opinion of the Court

arouse the sexual desire of any person.” 61 In his written pleadings, Appellant
stated that an expert was required “because the issues found in the case can
only be properly understood and prepared for…with expert assistance.” 62 Ap-
pellant supported his motion with eight enclosures in which witnesses’ state-
ments to NCIS detailed Appellant’s alcohol consumption on the day of the sex-
ual assault. Appellant identified three ways that an expert would assist the
defense team and reasoned that his defense team was unable to gather and
present this evidence without expert assistance because they lacked the formal
training of their requested expert. Oral argument offered no additional facts
or meaningful argument to bolster the written motion. 63
The military judge denied Appellant’s request. In her ruling, the military
judge found that Appellant’s blood alcohol content was not tested on 2-3 May
2020, and that the only evidence of Appellant’s alcohol consumption or intoxi-
cation was from lay witnesses who observed him on 2 May 2020. 64 She listed
several bases for her ruling. First, she identified that the evidence did not show
how much alcohol Appellant had consumed. 65 Next, she identified a number of
facts that pointed to Appellant’s strong mental faculties on 2 May 2020: he
“discussed personal life events, experiences, his marital situation, and de-
scribed his acts (and their purpose) to the complaining witness. Directly fol-
lowing the sexual encounter, the Accused made several statements to multiple
witnesses that were specific, deliberative, and reflect an overall understanding
of the accusations and their seriousness.” 66 Ultimately she found that “the ev-
idence does not reasonably support the conclusion that the Accused’s mental
faculties impacted his actions on 2 May 2020 to the extent and degree that it
require the assistance of the Defense’s requested expert consultant.” 67
At trial, LCpl Delta’s account of the events of 2 May 2020 largely corrobo-
rated Appellant’s statement to NCIS, with the main exception being that she
did not consent to the sexual acts.

61 Charge Sheet.
62 App. Ex. V at 4.
63 See R. at 48-64.
64 App. Ex. LI at 2.
65 App. Ex. LI at 3.
66 App. Ex. LI at 3.
67 App. Ex. LI at 3.

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 United States v. Champion-Flores, NMCCA No. 202100088
Opinion of the Court

We find that the military judge did not abuse her discretion in denying
Appellant’s request for a forensic psychologist. The abuse of discretion stand-
ard is a strict one, calling for more than a mere difference of opinion; the chal-
lenged action must be “arbitrary, fanciful, clearly unreasonable,” or “clearly
erroneous.” 68 The military judge recognized that Appellant, as the moving
party, bore the burden of proof and persuasion by a preponderance of the evi-
dence. 69 Her findings were supported by the facts, she applied the correct legal
principles, and her application of the facts to the legal principles was reasona-
ble. The military judge’s ruling was not arbitrary, fanciful, clearly unreasona-
ble, or clearly erroneous. We thus find no abuse of discretion in her denial of
the motion for expert assistance.

D. Trial Counsel’s Improper Conduct
Appellant contends that the trial counsel committed prosecutorial miscon-
duct during his closing and rebuttal arguments by improperly encouraging the
members to put themselves in the position of the victim, by improperly vouch-
ing for the evidence, and by inserting his personal beliefs and opinions into his
argument.

1. Improper Comments
We review prosecutorial misconduct and improper argument de novo. 70
When properly objected to at trial, we review for prejudicial error to an appel-
lant’s substantial rights. 71 “Challenged argument is reviewed not based on
‘words in isolation, but on the argument viewed in context,’ and ‘within the
context of the entire court-martial.’” 72
“Golden Rule arguments asking the members to put themselves in the vic-
tim’s place are improper and impermissible in the military justice system.” 73

68United States v. McElhaney, 54 M.J. 120, 130 (C.A.A.F. 2000) (quoting United
States v. Miller, 46 M.J. 63, 65 (C.A.A.F. 1997)).
69 R. at 59; App. Ex. LI at 2; R.C.M. 905(c)(1) and (2).
70 United States v. Andrews, 77 M.J. 393, 398 (C.A.A.F. 2018) (citing United States
v. Sewell, 76 M.J. 14, 18 (C.A.A.F. 2017)).
71Id. (citing United States v. Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005)); United
States v. Voorhees, 79 M.J. 5, 9 (C.A.A.F. 2019).
72Causey, 8 M.J. at 581 (citing United States v. Baer, 53 M.J. 235, 238 (C.A.A.F.
2000)) (citation and internal quotation marks omitted).
73 Baer, 53 M.J. at 238.

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 United States v. Champion-Flores, NMCCA No. 202100088
Opinion of the Court

“We weigh three factors to determine whether trial counsel’s improper argu-
ments were prejudicial: (1) the severity of the misconduct, (2) the measures
adopted to cure the misconduct, and (3) the weight of the evidence supporting
the conviction.” 74
Prosecutorial misconduct occurs when a prosecutor “oversteps the bounds
of that propriety and fairness which should characterize the conduct of such
an officer in the prosecution of a criminal offense.” 75 It is “defined as action or
inaction by a prosecutor in violation of some legal norm or standard, e.g., a
constitutional provision, a statute, a Manual rule, or an applicable professional
ethics canon.” 76 The conduct of the “trial counsel must be viewed within the
context of the entire court-martial . . . not [just] on words in isolation.” 77
Near the end of his rebuttal argument, trial counsel stated,
We often say that the glue of the Marine Corps—one of the
things that we have is that it's about the Marine to the right and
the Marine to the left. And that’s because Marines take care of
each other. Do the right thing. You had a Marine sit here on your
left and ask for help. Tell you what happened—told you what
happened… 78
Civilian defense counsel objected, stating, “[T]his is improper argument. I
ask that this be stricken, Your Honor. He’s asking them to put—he’s playing
up to the passions, Your Honor. This is improper argument.” 79 The military
judge sustained the objection and instructed trial counsel to “[g]o ahead and
close.” 80 Trial counsel completed his rebuttal with three more sentences and
sat down.
A short time later, civilian defense counsel requested that the military
judge provide a limiting instruction regarding that portion of trial counsel’s

74 Voorhees, 79 M.J. at 12 (internal quotation marks omitted and citation omitted).
75 Fletcher, 62 M.J. at 178 (quoting Berger v. United States, 295 U.S. 78, 84 (1935)).
76 United States v. Meek, 44 M.J. 1, 5 (C.A.A.F. 1996) (citing Berger, 295 U.S. at
88.).
77 Baer, 53 M.J. at 238 (quoting United States v. Young, 470 U.S. 1, 16 (1985)).
78 R. at 1589.
79 R. at 1589.
80 R. at 1589.

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 United States v. Champion-Flores, NMCCA No. 202100088
Opinion of the Court

closing argument to which he had successfully objected. The military judge in-
dicated she would give the standard instruction, “which is that I had sustained
an objection during trial counsel’s argument and so you are to completely dis-
regard any statements relating to that objection.” 81 Civilian defense counsel
replied, “Yes, Your Honor.” The military judge then gave the following instruc-
tion:
Members, at the close—during the government’s closing, I sustained an
objection. What that means is that, that part of the argument was im-
proper. So what that means is that you must disregard that portion of
the argument to which I sustained the objection. 82
The members again indicated that they understood this instruction.
We find that trial counsel’s comments in rebuttal argument constituted im-
proper argument. Trial counsel’s comments encouraged the members to “take
care of a fellow Marine,” rather than to convict based on the evidence before
them. Nonetheless, as soon as the implication was before the members and
before trial counsel could complete the point, civilian defense counsel objected
and the military judge sustained the objection. She followed with instructions
to the members, to which the members acknowledged their ability to follow.
“Court members are presumed to follow the military judge’s instructions,” and
we find nothing in the record to indicate the members were unable to follow
the military judge’s instructions. 83
The weight of the evidence supports Appellant’s convictions for sexual as-
sault and indecent conduct. The members received ample evidence of the sex-
ual acts performed by Appellant, LCpl Delta’s lack of consent, and the open
and notorious nature of the sexual acts. 84 As such, we cannot reach the conclu-
sion that “trial counsel’s comments taken as a whole were so damaging that
we cannot be confident that the members convicted the appellant on the basis
of the evidence alone.” 85 Therefore, while we find that the trial counsel’s com-
ments were improper, civilian defense counsel made a timely objection and the

81 R. at 1596.
82 R. at 1596.
83 United States v. Jenkins, 54 M.J. 12, 20 (C.A.A.F. 2000) (citations omitted).
84Pros. Ex. 2; App. Ex. XVIII at 82-96; R. at 1206; R. at 496, 571, 707, 765-66; 789-
91; 807-10; 849-50.
85Norwood, 81 M.J. 12, 19 (C.A.A.F. 2021) (quoting United States v. Andrews, 77
M.J. at401-02) (internal quotation marks and citation omitted).

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 United States v. Champion-Flores, NMCCA No. 202100088
Opinion of the Court

military judge took appropriate actions to address the misconduct, and this
error was not prejudicial to Appellant’s substantial rights.

2. Use of “We” and “We Know”
We next address trial counsel’s repeated use of the pronoun “we” and the
phrase “we know.” Within the more than 35 pages in the record constituting
trial counsel’s findings argument and rebuttal, we find over 30 instances of the
terms “we,” “we’re,” or “we know.” Appellant raised no objections to these state-
ments at the time.
If no objection is made, “we hold the appellant has forfeited his right to
appeal and we review for plain error.” 86 “The plain error doctrine is invoked to
rectify those errors that seriously affect the fairness, integrity or public repu-
tation of judicial proceedings. As a consequence, it is to be used sparingly,
solely in those circumstances in which a miscarriage of justice would otherwise
result.” 87 Plain error “requires that: (1) an error was committed; (2) the error
was plain, or clear, or obvious; and (3) the error resulted in material prejudice
to substantial rights.” 88
“Improper vouching can include the use of personal pronouns in connection
with assertions that a witness was correct or to be believed.” 89 Nonetheless,
“the use of personal pronouns in closing argument is not per se a due process
violation;” the “key issue is not the form but the content of such statements.” 90
Similarly, a prosecutor’s “closing argument need not be confined to such de-
tached exposition as would be appropriate in a lecture.” 91
We recently addressed a similar matter in United States v. Causey, in
which the trial counsel was alleged to have committed prosecutorial miscon-
duct by using the pronoun “we” and the phrase “we know” during closing and
rebuttal arguments, and offering his personal views of the evidence. 92 There,

86 Id.
87 United States v. Fisher, 21 M.J. 327, 328-29 (C.M.A. 1986).
88United States v. Pabelona, 76 M.J. 9, 11 (C.A.A.F. 2017) (citation and internal
quotation marks omitted).
89Fletcher, 62 M.J. at 180 (citing United States v. Washington, 263 F. Supp. 2d 413,
431 (D. Conn. 2003)).
90 Causey, 82 M.J. at 582 (internal citations omitted).
91 Id.
92 Id.

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 United States v. Champion-Flores, NMCCA No. 202100088
Opinion of the Court

like here, “the trial counsel’s use of pronouns was clearly directed toward urg-
ing conclusions to be drawn from the evidence,” not to vouch for the evidence
or to co-opt the members to become members of the Government’s prosecution
team. 93 To underscore our analysis and conclusion, we quote the following il-
lustrative examples:
He was drinking, but he wasn’t so drunk he couldn’t form the intent to
gratify. How do we know? End of this video, watch it. He’s still talking at
the end of the video. And he says he gave—she got off. He gave her an or-
gasm. Gave her a couple of orgasms. 94
How drunk does somebody have to be incapable of trying to gratify
somebody else or gratify themselves? Very, very drunk, members. Sergeant
Champion-Flores was not even close. How do we know that Sergeant Cham-
pion-Flores was not even close? Well, he remembers everything. 95
There’s no requirement that you continue to investigate. We all know
the reality. This is a world of limited resources. Limited time. Why would
you keep investigating after you've clearly proven the government has the
evidence to prove every element beyond a reasonable doubt, which we’ve
done. 96
“An attorney’s statements that indicate his opinion or knowledge of the
case are permissible if the attorney makes it clear that the conclusions he is
urging are conclusions to be drawn from the evidence.” 97 Similar to our holding
in Causey, we find that trial counsel’s use of “we” and “we know” was properly
focused on drawing reasonable conclusions from the evidence as opposed to
expressing personal opinions regarding the credibility of the witnesses or other
evidence. But we would reach this conclusion even if trial counsel’s comments
could be construed as improper. “[R]eversal is warranted only when the trial
counsel’s comments taken as a whole, were so damaging that we cannot be
confident that the members convicted the appellant on the basis of the evidence
alone.” 98

93 Id.
94 R. at 1583 (emphasis added).
95 R. at 1473 (emphasis added).
96 R. at 1581 (emphasis added).
97 Causey, 82 M.J. at 582 (citing United States v. Scilluffo, 2020 CCA LEXIS 62,
*62-63 (A.F. Ct. Crim. App. March 4, 2020)) (citations omitted).
98 Sewell, 76 M.J. at 18.

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 United States v. Champion-Flores, NMCCA No. 202100088
Opinion of the Court

Absent objection at trial, and applying the plain error rule, we do not find
that these errors were “plain, clear, or obvious.” Moreover, we find no material
prejudice to Appellant’s substantial rights as a result of trial counsel’s use of
personal pronouns.

3. Vouching for Witness
In response to the defense’s attack in argument on the thoroughness and
validity of the NCIS investigation, trial counsel made the following comment:
Defense talked about these holes that exist in the investigation. The
reason the beer can was sent out was because the question was Ser-
geant Champion-Flores lying to us. It answered that question. Special
Agent Bravo did a fantastic investigation in this case. He answered all
the questions that he had. He sat in that stand and he told you that
when he looks at investigative leads, he follows the logical conclusions,
and he answers all the questions that he needs. 99
We recognize that in stating that “Special Agent Bravo did a fantastic job
in this case,” trial counsel was offering his personal opinions to bolster the
credibility of one of the government’s key witnesses. This statement was not
objected to at trial, nor did the military judge sua sponte interrupt trial counsel
and offer a curative instruction.
In Vorhees, our superior Court emphasized that “[t]he prosecutor’s vouch-
ing for the credibility of witnesses and expressing his personal opinion concern-
ing the guilt of the accused pose two dangers: such comments can convey the
impression that evidence not presented to the jury, but known to the prosecu-
tor, supports the charges against the defendant and can thus jeopardize the
defendant’s right to be tried solely on the basis of the evidence presented to the
jury; and the prosecutor’s opinion carries with it the imprimatur of the Gov-
ernment and may induce the jury to trust the Government's judgment rather
than its own view of the evidence.” 100
Applying a plain error analysis, we find that this was improper argument
and that it was “plain, clear, or obvious.” At the same time, we find that it did
not result in prejudicial error. Seen in the context of the surrounding argu-
ment, wherein trial counsel sought to counter the defense’s attack on the thor-
oughness of the NCIS investigation, it is clear that had the words “Special

99 R. at 1580 (emphasis added).
100 Voorhees, 79 M.J. at 12 (citing Young, 470 U.S. at 18-19).

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 United States v. Champion-Flores, NMCCA No. 202100088
Opinion of the Court

Agent Bravo did a fantastic job” not been spoken, the message about the valid-
ity of the investigation would still have come through clearly. In the broader
context of the trial, as discussed above, Appellant fails to “demonstrate that
[the] trial counsel’s misconduct was ‘so damaging’ as to call into question
whether the members convicted Appellant on the basis of the evidence
alone.” 101

E. Legal and Factual Sufficiency
Appellant asserts the evidence is factually insufficient to support his con-
victions for sexual assault. We review such questions de novo. 102

1. Legal Sufficiency
Although not raised as an AOE, we review for legal sufficiency. 103 To deter-
mine 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.” 104 In conducting this anal-
ysis, we must “draw every reasonable inference from the evidence of record in
favor of the prosecution.” 105 After weighing the evidence in the record and mak-
ing every reasonable inference in favor of the prosecution, we are satisfied a
reasonable fact finder could have found all of the essential elements of each
charge and specification beyond a reasonable doubt. We therefore find Appel-
lant’s convictions for sexual assault and indecent conduct are legally sufficient.

2. Factual Sufficiency
In evaluating factual sufficiency, we determine “whether, after weighing
the evidence in the record of trial and making allowances for not having per-
sonally observed the witnesses, [we] are . . . convinced of [Appellant’s] guilt
beyond a reasonable doubt.” 106 In conducting this unique appellate function,

101 Id. (quoting Sewell, 76 M.J. at 18).
102 Article 66(d)(1), UCMJ; United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002).
103 Article 66(d)(1), UCMJ.
104 United States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987) (citing Jackson v. Vir-
ginia, 443 U.S. 307, 319 (1979)).
105United States v. Gutierrez, 74 M.J. 61, 65 (C.A.A.F. 2015) (citation and internal
quotation marks omitted).
106 Turner, 25 M.J. at 325.

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 United States v. Champion-Flores, NMCCA No. 202100088
Opinion of the Court

we take “a fresh, impartial look at the evidence,” applying “neither a presump-
tion 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.” 107 Proof beyond a “[r]easonable doubt,
however, does not mean the evidence must be free from conflict.” 108
To be found guilty of sexual assault, Appellant must have committed a sex-
ual act upon LCpl Delta without her consent. 109 Appellant does not contest
whether the charged sexual acts happened. The evidence at trial, including
Appellant’s admissions to NCIS, establishes beyond a reasonable doubt that
he committed the sexual acts on LCpl Delta. 110
With regard to the second element, “[c]onsent means a freely given agree-
ment to the conduct at issue by a competent person. An expression of lack of
consent through words or conduct means there is no consent. Lack of verbal or
physical resistance does not constitute consent.” 111 Lance Corporal Delta testi-
fied that she repeatedly—both verbally and non-verbally—rejected Appellant’s
advances during the sexual acts. Further, LCpl Delta showed no sexual inter-
est in Appellant in the weeks, days, hours, and minutes before the sexual acts.
The evidence at trial establishes beyond a reasonable doubt LCpl Delta did not
consent to the sexual acts.
Appellant asserts the affirmative defense of his mistake of fact about LCpl
Delta’s lack of consent. He states that while performing the sexual acts on LCpl
Delta, he never perceived any sign of her lack of consent; he claims never to
have heard her say “no” or “stop,” and she offered no resistance to his touches.
Additionally, he emphasizes that LCpl Delta admitted that, due to her quiet
voice, his position, and the windy evening, Appellant may not have heard when
she expressed her discomfort during the massage. Relying on this Court’s pre-
vious holding in United States v. Brown, in which we set aside the findings of
guilty and sentence where we found mistake of fact in a sexual assault case,
Appellant contends these factors should lead us to a similar conclusion. 112

107 Washington, 57 M.J. at 399.
108 United States v. Rankin, 63 M.J. 552, 557 (N-M. Ct. Crim. App. 2006).
109 Art. 120, UCMJ.
110 Pros. Ex. 2; App. Ex. XVIII at 82-96.
111 10 USC § 920(g)(7)(A).
112Appellant’s Brief at 55 (citing United States v. Brown, 2018 CCA LEXIS 316 at
*34 (N-MC Ct. Crim. App. July 2, 2018)).

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Opinion of the Court

“[I]t is a defense to an offense that the accused held, as a result of ignorance
or mistake, an incorrect belief of the true circumstances such that, if the cir-
cumstances were as the accused believed them, the accused would not be guilty
of the offense.” 113 If the mistake goes to an element requiring specific intent,
“the ignorance or mistake need only have existed in the mind of the accused.” 114
However, if the “mistake goes to any other element requiring only general in-
tent or knowledge, the ignorance or mistake must have existed in the mind of
the accused and must have been reasonable under all the circumstances.” 115
We find that the prosecution met its burden of proving beyond a reasonable
doubt that the defense of mistake of fact did not exist because Appellant’s mis-
take of fact was not reasonable under all the circumstances. Appellant was a
married sergeant senior in grade to LCpl Delta, with whom he had no romantic
history. Upon moving into the barracks, he engaged in several one-sided, in-
creasingly sexually-charged text and social media exchanges. On the day of the
sexual assault, he spent hours speaking with her—predominantly in the con-
text of a fellow Marine and friend, not as someone with whom he expected a
sexual relationship. However, he attempted to isolate her and make the rela-
tionship sexual. As she testified, during these moments, LCpl Delta clearly
communicated her lack of interest in a romantic or sexual relationship: during
their two walks together that day and evening, when Appellant moved closer
to her, called her beautiful, stated that they would be compatible, asked to kiss
her, or pulled her closer, she repeatedly rebuffed his advances, either laughing
off the comments or pulling away. Later, during the massage and in the mo-
ment of the sexual acts, in addition to covering her breasts to prevent him from
touching them, and with her body going “rigid,” “frozen,” and “tense,” LCpl
Delta repeatedly stated that she “didn’t feel comfortable,” to which his response
was to tell her to “relax” while continuing to touch her vagina and anus. 116 We
find beyond a reasonable doubt that regardless of whether Appellant subjec-
tively mistook LCpl Delta’s lack of resistance as consent for oral sex, he ne-
glected or ignored a host of other conflicting signals. His mistake of fact, if any,
was not objectively reasonable.

113 R.C.M. 916(j).
114 Id.
115 Id.
116 R. at 1198, 1200-08.

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Opinion of the Court

Finally, we must consider whether Appellant’s intoxication affected his
mistake of fact about LCpl Delta’s consent, or his ability to form the intent to
carry out the sexual assaults charged in the second and third specifications.
Although not a defense, evidence of voluntary intoxication may be introduced
to raise a reasonable doubt about an accused’s specific intent when it is an
element of the offense. 117 With regard to Appellant’s intoxication relative to his
mistake of fact, the military judge correctly provided the following instruction:
There has been some evidence concerning the accused’s state of in-
toxication at the time of the alleged offense. On the question of whether
the accused’s ignorance or belief was reasonable, you may not consider
the accused’s intoxication, if any, because a reasonable ignorance or be-
lief is one that an ordinary, prudent, sober adult would have under the
circumstances of this case. Voluntary intoxication does not permit what
would be an unreasonable ignorance or belief in the mind of a sober
person to be considered reasonable because the person is intoxicated. 118
Consistent with the military judge’s instruction, and as described above,
we find that an ordinary, prudent, sober adult would not have mistaken LCpl
Delta’s speech or conduct as consent for sexual contact.
After weighing the evidence in the record of trial and making allowances
for not having personally observed the witnesses, we are convinced of Appel-
lant’s guilt beyond a reasonable doubt and find that the evidence is factually
sufficient to support Appellant’s convictions.

117 R.C.M. 916(l)(2).
118 App. Ex. XLVI at 3 (emphasis added).

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 United States v. Champion-Flores, NMCCA No. 202100088
Opinion of the Court

III. CONCLUSION

After careful consideration of the record and briefs of appellate counsel, we
have determined that the findings and sentence are correct in law and fact and
that no error materially prejudicial to Appellant’s substantial rights oc-
curred. 119
The findings and sentence are AFFIRMED.

FOR THE COURT:

MARK K. JAMISON
Clerk of Court

119 Articles 59 & 66, UCMJ.

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