​Sometimes a seemingly simple statute can be devilishly difficult to interpret. As reflected by the various opinions in this case, that certainly is true with Article 91(3), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 891(3) (2018), which prohibits disrespect towards a warrant, noncommissioned, or petty officer. Nonetheless, this case resolves two key points. First, a majority of this Court holds that an accused servicemember can be convicted under Article 91(3) even if his or her disrespectful conduct occurs outside the physical presence of the victim. Importantly, that means that disrespectful language or behavior towards a warrant, noncommissioned, or petty officer can be criminally actionable even when it is remotely conveyed using a digital device such as a smartphone and even when the disrespectful language or behavior is conveyed via social media. And second, a majority of this Court holds that under Article 91(3), servicemembers can only be held criminally liable if at the time they conveyed the disrespectful language or behavior the victim was then in the execution of his or her office. The reasons for these conclusions are explained below. 

​Therefore, we hold that disrespectful language or behavior towards a warrant, noncommissioned, or petty officer can be criminally actionable even when it is remotely conveyed using a digital device and even when the disrespectful language or behavior is conveyed via social media

In the interview, however, appellant also talked about his prior sexual experiences with the victim. Among other things, appellant described how in the past "it was kind of games," where the victim would say "no," he would stop and "she would just look at me," and then they would keep going again. Appellant also told the agent because of these past experiences, "I figured she was playing around," and she also did not mean "no" on this occasion. Appellant also described how teasing was part of the foreplay in their 4 or 5 prior sexual encounters. Finally, appellant said he held down the victim's wrist during oral sex because that was what they usually did, and in the past she had given him a "seductive no." None of this evidence (hereinafter referred to as appellant's "unadmitted statements") was before the military judge when he rendered his verdict. 

Mr. DC never asked about these prior instances during cross examination of the alleged victim, or the special agent who conducted the interview. While the defense certainly should have known about these statements, Mr. DC made no attempt to elicit testimony about them on cross, even after discussing the potential of Mil. R. Evid. 412 evidence in an R.C.M. 802 session.

In fact, when certain Mr. DC never asked about these prior instances during cross examination of the alleged victim, or the special agent who conducted the interview. While the defense certainly should have known about these statements, Mr. DC made no attempt to elicit testimony about them on cross, even after discussing the potential of Mil. R. Evid. 412 evidence in an R.C.M. 802 session. Mr. DC doubled down on this "strategy" by claiming he was only speaking to prior instances on the same day as the alleged assault.
. . .
Applied here, appellant's unadmitted statements that his past sexual encounters with the victim were "kind of games" where she would tell him "no" and then question why he stopped, are clearly relevant, material, and favorable to the mistake of fact defense asserted at trial. This is especially true given appellant's letter describing how, after he found the victim smiling in the closet, he "figured now that we were playing - - now we were playing around and [I] just followed along." See United States v. Roberts, 69 M.J. 23, 27 (C.A.A.F. 2010) (holding that there is a "low threshold for relevant evidence" under Mil. R. Evid. 412); United States v. Yepez, ARMY 20210236, 2023 CCA LEXIS 12 at *6 (Army Ct. Crim. App. 11 Jan. 2023) (mem. op.) (finding military judge erred in relying on Mil. R. Evid. 412 to exclude evidence making it more likely for a fact finder to conclude appellanthonestly and reasonably believed the victim consented). 

Having determined that appellant's unadmitted statements were likely admissible under Mil. R. Evid. 412(b )(2) and (b )(3) and constitute "remaining portion" of appellant's admissions to the agent that were introduced against appellant, we turn to counsels' purported reasoning for not seeking their admission either before or during trial. See Mil. R. Evid. 304(h). First, to the extent counselclaimed appellant would not have made a good witness at trial, this purported justification ignores the fact that, because appellant made the unadmitted statements in his already recorded interview, their admissibility was in no way dependent on his testifying at trial, or even in a Mil. R. Evid. 412 hearing.

Anderson v. Garza

[A]pproximately seven months before the sexual assault she had gone on one date with Appellant. SP told the agents that during the date she and Appellant had “made out,” and that he had consensually kissed her when he dropped her off at a friend’s house after the date. However, Appellant and SP did not continue to date thereafter and had no further romantic relationship.

DC explained that not seeking to confront SP with evidence of her prior date with Appellant was an intentional strategic and tactical choice. DC explained the Defense assessed the date had low probative value as to whether SP was attracted to Appellant and consented to sexual intercourse approximately seven months later. To the contrary, the fact that there was only one date followed by seven months of inactivity could be interpreted as evidence of SP’s lack of sexual interest in Appellant. In addition, trial defense counsel anticipated SP would be a canny adverse witness who would likely portray her date with Appellant in a negative light on cross-examination, potentially further damaging the Defense’s case. DC explained how he intended to use other methods—such as the perceived improbability of certain aspects of SP’s account, certain allegedly inconsistent statements SP made about the sexual assault, and her motives to fabricate the allegation—to undermine SP’s credibility, such that attempting to confront SP about the date was unnecessary, risky, and of dubious probative value.

Air Force

The scheme began in May 2019, after Appellant’s boyfriend AA and his friend CH put Appellant in contact with AP, a former military member, who they said could help Appellant make money by using her military status to purchase gift cards and electronics for AP at the NEX. The evidence presented at trial showed Appellant received fraudulent prepaid debit cards from AP that contained stolen credit card account information on the magnetic strip, but did not contain a security chip.

Appellant used these cards at the NEX multiple times before the credit card companies flagged the cards for fraud and denied transactions. The evidence showed that Appellant typically went to multiple different registers, making a few transactions at each register on the same day.

Appellant subsequently provided the gift cards and merchandise to AP after she purchased the items. In exchange for her efforts, AP paid Appellant with gift cards or with a portion of the sale proceeds if the merchandise was later sold. On the advice of AP, Appellant then took the gift cards to various grocery stores in the area and used the gift cards to purchase money orders. Documentary evidence admitted at trial showed Appellant typically purchased $500.00 money orders with $500.00 gift cards, and that most of the money orders were made payable to Appellant and deposited in her personal bank account. Other money orders were made out to AP or AA.