Court of Appeals for the Armed Forces

United States v. Mendoza

The issue in Mendoza has been brewing for some time. You have a three-judge majority with the two other judges each concurring and dissenting in part. All five agree with the principle that Congress created separate ways to violate Article 120 and they shouldn't be conflated.

Under the theory that JW did not consent to the act, the Government charged Appellant with sexual assault in violation of Article 120(b)(2)(A), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920(b)(2)(A) (2018).1 Notably, the Government did not charge Appellant with a sexual assault under Article 120(b)(3)(A), UCMJ, which would have required the Government to prove both that Appellant committed a sexual act on JW when JW was incapable of consenting to the sexual act due to impairment by any drug, intoxicant, or other similar substance and that Appellant knew or should have known that JW was incapable of consenting. At trial, the Government presented evidence of JW’s extreme intoxication and argued to the military judge sitting alone both that JW would not have consented to sexual intercourse with Appellant and that she was incapable of consenting to sexual intercourse due to her high level of intoxication.

Appellant challenges the legal sufficiency of his conviction on the grounds that the Government failed to introduce affirmative evidence of the lack of  consent beyond a reasonable doubt. We disagree with Appellant that direct evidence of JW’s lack of consent was necessary for his conviction to be legally sufficient, but we do agree with his secondary argument that Article 120(b)(2)(A), UCMJ, and Article 120(b)(3)(A), UCMJ, create separate theories of criminal liability. Article 120(b)(2)(A), UCMJ, criminalizes engaging in a sexual act with a person capable of consenting who did not consent, and Article 120(b)(3)(A), UCMJ, criminalizes engaging in a sexual act with a person who is incapable of consenting due to impairment by any drug, intoxicant, or other similar substance when the accused knows or should have known that the person was incapable of consenting.

 The Government’s approach—which conflated two different and inconsistent theories of criminal liability—raises significant due process concerns. Because the ACCA’s decision upholding Appellant’s conviction does not explain how or why the evidence of JW’s intoxication factored into its analysis, we reverse the decision of the ACCA and remand the case for the court to reconsider its legal and factual sufficiency analysis in light of this opinion

Sparks, J., concurring and dissenting

I join part II(B)(1) of the majority opinion because I agree with the majority that Article 120(b)(2)(A), UCMJ, and Article 120(b)(3)(A), UCMJ, create separate theories of criminal liability. 10 U.S.C. § 920 (2018). The majority acknowledges, correctly in my opinion, that “[t]he Government’s approach—which conflated two different and inconsistent theories of criminal liability—raises significant due process concerns.” United States v. Mendoza, __ M.J. __, __ (3) (C.A.A.F. 2024). And I am in complete agreement with the majority that: what the Government cannot do is charge one offense under one factual theory and then argue a different offense and a different factual theory at trial. Doing so robs the defendant of his constitutional “right to know what offense and under what legal theory he will be tried and convicted.” Id. at __ (13) (quoting United States v. Riggins, 75 M.J. 78, 83 (C.A.A.F. 2016)). The majority even goes so far as to explain that in this case “[t]he military judge may have convicted Appellant of sexual assault on the theory that JW was incapable of consenting without the Government proving that Appellant knew or should have known that she was incapable.” Id. at __ (12-13). Again, I agree. It is in deciding where we go from this point that the majority and I disagree. Instead of finding that the evidence is legally insufficient or that Government violated Appellant’s due process right to fair notice by arguing an uncharged factual and legal theory of liability at trial and testing the error for prejudice, the majority instead concludes that the appropriate remedy in this case is to remand the case to the United States Army Court of Criminal Appeals (ACCA) for a new legal and factual sufficiency review in which the ACCA can explain “how or why the evidence of JW’s intoxication factored into its analysis.” Id. at __ (3). With this I cannot agree.

Maggs, J., concurring and dissenting in part

I concur with the Court’s interpretation of Article 120(b)(2)(A), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920(b)(2)(A) (2018). I disagree, however, with one aspect of the Court’s disposition of this appeal. Specifically, while the Court remands the case for both a new legal and factual sufficiency review, I would hold that the evidence is legally sufficient and remand solely for a new factual sufficiency review. I therefore respectfully concur in part and dissent in part.