Appellant presented evidence at the motion hearing that an expert consultant could, from a review of the case, calculate an approximate BAC for victim which would indicate she was at a level of intoxication consistent with experiencing some form of blackout and the negative impact that could have on the accuracy of victim's memory perception. It was an undisputed fact at the motion hearing, conceded by the government, that victim told CID SAs that she "blacked out" in her interview conducted approximately ten months after the alleged sexual assault.

The combination of victim's statement and the defense evidence presented by the experts demonstrated: (1) an expert was necessary to assess the victim's BAC range and her description of the sexual assault in light of the science of the impact of alcohol on the formation and accurate recall of memory; (2) each expert would use the evidence to assist the defense to prepare an alternate theory of the case than the government; and (3) the inability of the defense counsel to calculate a BAC or interpret scientific evidence explaining the impact of alcohol on the formation and recall of memory. The military judge abused her discretion in denying the defense with expert consultants to prepare their case.

[In fn. 3] We pause to note victim's intoxication and potential memory loss were corroborated at trial by the SANE[.]

In response, the government argued: (1) the charged offense of sexual assault by bodily harm without consent occurred when victim told appellant to stop and he did not, (2) victim remembered everything correctly, and (3) any expert assistance or testimony regarding victim's intoxication was not relevant as the government's charging theory was not based on her incapacitation and the alleged offense occurred while she was awake. During the same argument, the government, however, conceded to the military judge that victim's act of "blacking out [was] relevant .... [and t]he factfinder can hear all of that, but we ask that you not elevate this to an inaccessible scientific level without any nexus to a charged offense."

Sexually active communities are home to a myriad of colorful terms, language, and labels, which are used to identify safe practices and commonalities, as well as dangerous, violent, or coercive situations one may encounter. One such term, “stealthing,” has been in use since 2014 to describe a dangerous, potentially violent, sexually coercive situation in which (1) consent to sexual activity is conditional upon the use of a physical sexual barrier (e.g., a condom); and (2) the physical sexual barrier is either removed or sabotaged by one partner without the knowledge or consent of the other.

[T]rial counsel requested a special instruction with regard to the bad-conduct discharge punishment option. Trial counsel requested that instead of the standard instruction on a bad-conduct discharge, that the members be provided the following:
     A bad[-]conduct discharge is less severe than a dishonorable discharge and is designed as a punishment for bad conduct rather than as a punishment [*4]  for serious offenses of either a civilian or military nature. It is also appropriate for an accused who has been convicted repeatedly of minor offenses and whose punitive separation appears to be necessary.
The military judge heard the parties' positions on this proposed instruction at that time. Trial defense counsel objected to this instruction arguing that the language was confusing and that it simply served to bolster the Government's argument.

When uncharged misconduct is part of a continuous course of conduct involving similar  crimes and the same victims, it is encompassed within the language directly relating to or resulting from the offense of which the accused has been found guilty under R.C.M. 1001(b)(4). United States v. Nourse, 55 M.J. 229, 231–32 (C.A.A.F. 2001). . . . see also United States v. Wingart, 27 M.J. 128, 135 (C.M.A. 1988) (holding that R.C.M. 1001(b)(4) allows a trial counsel to “present evidence as to any aggravating circumstances directly relating to or resulting from the offenses of which the accused has been found guilty”).

(1) whether the military judge abused his discretion by considering as aggravation evidence Prosecution Exhibit 8, a video depicting CP, without determining whether Appellant knowingly possessed it and without properly weighing its probative value[.]

United States v. Mencias, 83 M.J. ___ (N-M. Ct. Crim. App. 2023)

​While the Supreme Court has never directly addressed sexual orientation within the context of peremptory challenges, it has held sexual orientation and gender are treated the same for purposes of employment discrimination.
. . .
The race-based protections of Batson are applicable to courts-martial. Likewise is the Supreme Court’s extension of Batson to gender. This is true regardless of the accused’s race or gender. But, based on fundamental differences in the selection of jurors in civilian trials and members of courts-martial, our superior court has both lowered the bar for the defense to make a Batson challenge and raised the bar for the Government to overcome one.

​The military judge abused his discretion in denying Appellant’s request for an instruction on the maximum punishment for each individual offense because he did so based on an incorrect understanding of the law. Contrary to the military judge’s apparent understanding, he possessed the discretion to instruct the panel on the maximum punishments available for each individual offense, in addition to informing them of the maximum cumulative punishment available for all offenses. 

​Given the focus placed on the involuntary manslaughter conviction by the Government during sentencing and under the specific facts of this case, we cannot be confident that the military judge’s denial of the requested instruction did not substantially influence the adjudged sentence. 

Once again, this Court is presented with the question whether a novel approach toward the delivery of a victim’s unsworn statement exceeds what the President has authorized under R.C.M. 1001(c)(5), and again we conclude ​that it does. See Edwards, 82 M.J. at 241 (finding reversible error when the military judge allowed the victim’s designee to present his unsworn victim statement in the form of a video slideshow set to background music). Presentation of the victim’s unsworn statement via a question-and-answer format with trial counsel violates the Rules for Courts-Martial because it contravenes the principle that an unsworn victim statement belongs solely to the victim or the victim’s designee. Id. (first citing United States v. Hamilton, 78 M.J. 335, 342 (C.A.A.F. 2019); and then citing Barker, 77 M.J. at 378). 
. . . 
​In Edwards, this Court reaffirmed the principle “that unsworn victim statements belong solely to the victim or the victim’s designee.” 82 M.J. at 246 (first citing Barker, 77 M.J. at 378, and then citing Hamilton, 78 M.J. at 342). We explained that the government may not use unsworn victim statements to supplement its own sentencing arguments, nor may it misappropriate the victim’s statutory right to be heard. Id. By participating in the delivery of the victim statements, the trial counsel in this case violated that principle.

Although the interests of victims and the government often align, we note that this is not always the case. See, e.g., United States v. Horne, 82 M.J. 283, 289-90 (C.A.A.F. 2022) (holding that trial counsel committed unlawful command influence when ​she instructed investigators not to interview the victim’s husband at the special victims’ counsel’s request). 

United States v. Johnson

"Bait-and-Switch?"

On appeal, Appellant argues the Government violated his due process rights by switching the events that Specification 1 of the Charge was meant to address. Specifically, Appellant argues he, his trial defense counsel, and “everyone else involved in the court-martial believed that Specification 1 alleged a nonconsensual touching of GH’s buttocks while bending over in the kitchen to put cookies in the oven.” He further claims the inclusion of him touching GH’s buttocks on the air mattress was a “bait and switch” that deprived him of a fair trial. We find the record does not support Appellant’s claim.

1. Specification 1 of the Charge has never changed. It reads the same post-trial as it did when it was preferred by Appellant’s commander. Notably, Appellant did not request a bill of particulars to clarify the Government’s evidence supporting Specification 1.

2. Appellant makes no argument that he was not provided discovery in this case, therefore, he had pretrial access to GH’s statements that Appellant had his hand down the back of her underwear while she slept. Appellant also received discovery of his own statements to AFOSI during the investigation where he discussed at least a dozen times touching GH’s buttocks on the air mattress. We also note the Government’s opening statement made no mention of the incident in the kitchen, but focused heavily on Appellant’s conduct on the air mattress. Similarly, the Government’s closing argument clearly indicated that the abusive sexual contact on the air mattress was the Government’s “primary” focus of prosecution. We find no support for Appellant’s claim his due process right to notice was violated.
. . . 
 Appellant argues the military judge permitted the Government to argue the abusive sexual contact occurred while GH was asleep, as opposed to how it was charged—without her consent. Again, we find the record does not support this argument.
. . .
We see no reason why the Government may not use evidence that GH was asleep— ordinarily the focal point of a prosecution under the theory of while asleep—as circumstantial evidence of the lack of actual consent in a prosecution under a theory of without consent.
. . . 
[W]e find nothing in the record to suggest that trial counsel misled the members or asked them to convict Appellant of any offense other than the one for which he was charged. The Government submitted evidence of both Appellant’s conduct in the kitchen and on the air mattress. "It makes no difference how many members chose one act or the other, one theory of liability or the other. The only condition is that there be evidence sufficient to justify a finding of guilty on any theory of liability submitted to the members." United States v. Brown, 65 M.J. at 359 (quoting United States v. Vidal, 23 M.J. at 325). 

Sentencing for Acquitted Conduct

Section 1.  Part II, Part III, Part IV, and Part V of the Manual for Courts-Martial, United States, are amended as described in Annex 1, which is attached to and made a part of this order.  The amendments in Annex 1 shall take effect on the date of this order, subject to the following[.]

Sec. 2.  Part I, Part II, Part III, Part IV, Part V, and Appendix 12A of the Manual for Courts-Martial, United States, are amended as described in Annex 2, which is attached to and made a part of this order.  The amendments in Annex 2 shall apply in accordance with the effective date established by section 539C of the National Defense Authorization Act for Fiscal Year 2022 (NDAA FY 2022), Public Law 117-81, subject to the following[.]

Sec. 3.  Appendix 12B, Appendix 12C, and Appendix 12D are added to the Manual for Courts-Martial, United States, and Part II of the Manual is amended as described in Annex 3, which is attached to and made a part of this order.  The additions and amendments in Annex 3 shall take effect on December 27, 2023, and shall apply in accordance with section 539E(f) of the NDAA FY 2022 (10 U.S.C. 853 note), subject to the following[.]

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