United States v. Grafton-NMCCA

Appellant asserts seven assignments of error (AOE):

I. Is a new trial required where the members prematurely deliberated on Appellant’s guilt throughout the Government’s case in violation of the military judge’s instructions? Waived.

II. Were the trial defense counsel ineffective when they failed to challenge the panel members for cause or move for a mistrial based on the members’ premature deliberations throughout the Government’s case and instead advised Appellant to waive the issue? Reasonable tactical decision.

III. Did the court-martial lack jurisdiction due to the military judge’s inactive status with the state bar of California? See United States v. Painter, 82 M.J. 806, 808 (N-M Ct. Crim. App. 2022); United States v. McNulty, 84 M.J. 628, 635 (N-M Ct. Crim. App. 2024).

IV. Is the evidence factually sufficient to support a finding of guilty for Specification 1 of the Charge?

V. In light of United States v. Mendoza, whether the evidence is legally insufficient to support the finding of guilty to the sexual assault without consent?

VI. In light of United States v. Mendoza, were the instructions erroneous?

VII. In light of United States v. Mendoza, were the members’ findings legally impossible and thus void?

We find prejudicial error with respect to AOE VI as a result of the Court of Appeals for the Armed Forces (CAAF) opinion in United States v. Mendoza. We set aside the finding of guilty as to Specification 1 and dismiss it, and we reinstate and affirm the finding of guilty as to Specification 2. We reassess and affirm the same sentence.