UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                Before
             K.J. BRUBAKER, M.C. HOLIFIELD, A.Y. MARKS
                       Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                    FABIAN J. THOMPSON
     AVIATION BOATSWAIN'S MATE FIRST CLASS (E-6), U.S. NAVY

                           NMCCA 201400072
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 9 August 2013.
Military Judge: CDR Colleen Glaser-Allen, JAGC, USN.
Convening Authority: Commander, Naval Air Force Atlantic,
Norfolk, VA.
Staff Judge Advocate's Recommendation: CAPT T.J. Welsh,
JAGC, USN.
For Appellant: Maj John J. Stephens, USMC.
For Appellee: LCDR Keith Lofland, JAGC, USN; LT Amy L.
Freyermuth, JAGC, USN.

                            25 August 2015

     ---------------------------------------------------
                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

BRUBAKER, Senior Judge:

     A panel of officer and enlisted members sitting as a
general court-martial convicted the appellant, contrary to his
pleas, of a single specification of aggravated sexual assault in
violation of Article 120, Uniform Code of Military Justice, 10
U.S.C. § 920. 1 The members sentenced the appellant to
confinement for one year, reduction to pay grade E-1, and a bad-
conduct discharge. The convening authority (CA) approved the
sentence as adjudged.

     The appellant raises three assignments of error (AOEs):
(1) the evidence admitted at trial was legally and factually
insufficient to support a conviction; (2) the CA’s instruction
restricting eligibility for court-martial membership frustrated
the appellant’s right to a properly convened court-martial; and
(3) the Government’s failure to disclose requested material
related to the member selection process was reversible error.

     This is our second review of this case. In a previous
decision, we found the Government failed to meet its burden to
to demonstrate a lack of prejudice to what we concluded was a
systematic exclusion of potential members by rank; we
accordingly set aside the findings and sentence. United States
v. Thompson, No. 201400072, 2015 CCA LEXIS 153, unpublished op.
(N.M.Ct.Crim.App. 21 Apr. 2015) (“Thompson I”). Having granted
a Government motion to attach documentary evidence and to
reconsider, we find the Government now has met its burden. We
therefore find no error materially prejudicial to the
substantial rights of the appellant and affirm the findings and
the approved sentence. Arts. 59(a) and 66(c), UCMJ.

                            Factual Background

     During a port call to Dubai, United Arab Emirates, in late
April 2012, the appellant, the alleged victim (Aviation
Boatswain’s Mate (Equipment) Second Class (ABE2) LB, and a
number of other shipmates were staying at a local hotel. On the
evening of 26 April 2012, several of these Sailors, including
the appellant and ABE2 LB, were at the hotel’s pool enjoying
dinner and drinks. Sometime after midnight, the group moved to
the appellant’s room on the second deck, where they continued to
drink and socialize.

     Over the next several hours, ABE2 LB had several vodka
drinks, although the amount of alcohol she consumed is unclear
from the record. By 0200, ABE2 LB’s level of intoxication was
described as “loud, obnoxious, happy . . . slurring a bit . . .
[but] wasn’t stumbling [or] couldn’t hold her balance.” 2 Around

1
  As the offense allegedly occurred on 27 April 2012, the version of Article
120, UCMJ in effect from 1 Oct 2007 through 27 June 2012 applies.
2
    Record at 761.
                                      2
0230, ABE2 LB lay down on the appellant’s bed and fell asleep.
One attendee began “messing with her, trying to irritate her” 3
by, for example, changing the position of her feet. At first,
ABE2 LB, known to be a heavy sleeper, “kind of like just
shrug[ged] it off, but after that, she just——she didn’t respond
to it.” 4

     Shortly thereafter, a female attendee, Master-at-Arms
Second Class (MA2) P, stated they needed to move ABE2 LB to her
own room. With difficulty, MA2 P roused ABE2 LB and told her
she had to go back to her room. 5 Several witnesses described her
at this point as “very intoxicated” 6 and nonresponsive. ABE2 LB
was helped onto Aviation Boatswain’s Mate (Equipment) First
Class (ABE1) O’s back and was carried “piggy-back” to her room
on the fourth deck. ABE1 O described ABE2 LB as “passed out” 7 as
he carried her and “still out” 8 when he laid her in her bed;
video partially confirms and partially contradicts this as it
shows ABE1 O carrying ABE2 LB, but, while opening the door to
her room, putting her down and her standing on her own with the
help of his steadying arm. ABE1 O left ABE2 LB’s room key
beside her bed and departed for his room.

     Ten minutes later, the appellant is seen in security camera
footage in the foyer to ABE2 LB’s door for approximately two
minutes, apparently knocking in an attempt to gain entry. He
asserted he was trying to retrieve a computer power cord he had
loaned ABE2 LB earlier in the port call. There was no answer.
He then went to the front desk and obtained a key to ABE2 LB’s
room. Returning to the fourth deck, he used the key to enter
ABE2 LB’s room.

     At this point the accounts of the appellant and ABE2 LB
diverge. The appellant testified that, as he was getting the
power cord, ABE2 LB called him over to the bed. She then took
his hand and moved it to her vaginal area as he lay down beside

3
    

4
    

5
  ABE2 LB did not initially respond to efforts to wake her until MA2 P “got in
her ear and told her, ‘[LB], I need you to get your butt up so that you can
go to your room.’” 

6
    

7
    

8
    

                                      3
her. After a few minutes she climbed atop him and began “dry-
humping” him; both were still wearing underwear at this point.
The appellant claims ABE2 LB proceeded to remove her underwear
and the pair engaged in consensual sexual intercourse with her
on top. After some minutes she rolled off of him. He was then
surprised when she asked, “Who is this?” and demanded to be
taken to her room. 9 The appellant replied, “It’s Thompson,” and
informed her she was already in her room. 10 ABE2 LB lay on the
bed for a minute before getting up, entering the bathroom, and
then leaving the hotel room.

     ABE2 LB claims she remembered nothing regarding how she got
to her room. She testified that she was awakened by a man
having intercourse with her. When she asked who it was, the man
replied “Thompson.” 11 Although she told him to stop, he flipped
her over and attempted to sodomize her. Screaming from the
pain, she was then flipped back over and the vaginal intercourse
resumed. She testified she then “ran to the bathroom . . .
grabbed a towel . . . ran out of [her] room to the elevator,” 12
and went to the room of MA2 P and another friend, MA2 M. The
hotel video shows her leaving the room with a towel wrapped
around her, but does not show her running at any point. The
video then shows the appellant emerging from the room shortly
thereafter——a total of approximately 21 minutes after he entered
ABE2 LB’s room——glancing one direction, then running the other.

     ABE2 LB arrived at MA2 P and MA2 M’s room crying and
wearing only a bra and a towel. MA2 P asked ABE2 LB what was
wrong. At first, ABE2 LB did not respond, but eventually
answered affirmatively that someone had touched her. MA2 P then
looked at ABE2 LB’s vagina and observed it was swollen and
“inside out.” 13 After repeated questioning about who it was,
ABE2 LB finally responded, “He said his name was Thompson.” 14

     The appellant, meantime, went to his room, where he
immediately changed his underwear and shirt because he believed

9
     

10
     

at 935.
12
     

13
     

14
     

LB’s “bodily fluids” 15 would be on them. Shortly
thereafter, when confronted by MA2 P, the appellant denied
having had sex with ABE2 LB, claiming he had been in his room
the entire time.

     ABE2 LB remained in MA2 P and MA2 M’s room the rest of the
night. After she expressed her vagina was throbbing and in
pain, MA2 P and MA2 M helped ABE2 LB, who insisted initially on
not reporting the incident, take a bath. ABE2 LB repeatedly
awoke throughout the night crying and vomiting.

     Although ABE2 LB initially “begged” her friends to “just
leave it alone” 16 and not further inquire into or report the
matter, she eventually reported the incident to law enforcement
authorities the next morning. That evening, she underwent a
Sexual Assault Nurse Examination (SANE). The nurse examiner
found no apparent trauma to ABE2 LB’s vagina or anus.

     Subsequent laboratory testing revealed the presence of both
the appellant’s and ABE2 LB’s DNA in the former’s underwear.
The testing also revealed fibers consistent with the appellant’s
underwear were present on ABE2 LB’s underwear.

                           Sufficiency of Evidence

     The appellant’s first AOE focuses on ABE2 LB’s
intoxication, claiming that the evidence did not establish that
she was unable to decline participation in the sexual act. We
disagree.

1.     Legal sufficiency

     The test for legal sufficiency is whether, considering the
evidence in the light most favorable to the Government, any
rational trier of fact could have found the elements of the
offense beyond a reasonable doubt. United States v. Turner, 

, 325 (C.M.A. 1987); United States v. Reed, 

,
561-62 (N.M.Crim.Ct.App. 1999), aff'd, 

(C.A.A.F.
2000); see also Art. 66(c), UCMJ.

     The elements of aggravated sexual assault, as charged in
the present case, are: (1) That the accused caused another

15
     

16
     

                                      5
person, who is of any age, to engage in a sexual act; and (2)
that the other person was substantially incapable of declining
participation in the sexual act. MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2008 ed.), Part IV, ¶ 45. Here, the testimony of both the
appellant and ABE2 LB as well as forensic evidence support a
finding that a sexual act occurred. The testimony of the
various witnesses, as well as ABE2 LB’s own testimony, supports
a finding of substantial incapability to decline participation.
Thus, we find the evidence to be legally sufficient.

2.     Factual sufficiency

     The test for factual sufficiency is whether, after weighing
all the evidence in the record of trial and recognizing that we
did not see or hear the witnesses, this court is convinced of
the appellant's guilt beyond a reasonable doubt. 

; see also Art. 66(c), UCMJ. Proof beyond a
reasonable doubt does not mean that the evidence must be free
from conflict. United States v. Goode, 

, 841
(N.M.Ct.Crim.App. 2001). The fact finder may believe one part
of a witness’ testimony and disbelieve another. 

the credibility of a witness, this court, like a fact
finder at trial, examines whether discrepancies in witness
testimony resulted from an innocent mistake, such as a lapse of
memory, or a deliberate lie. 

     The record undoubtedly raises concerns regarding ABE2 LB’s
credibility. First, during the SANE, ABE2 LB denied having had
consensual sexual intercourse with anyone in the previous five
days. At trial, however, she admitted having had sex with
another man on the day before the events in question. Second,
ABE2 LB provided a sworn statement to the Naval Criminal
Investigative Service (NCIS) in which she claimed, “I have never
had any kind of romantic relationship with Thompson or given him
the idea that I wanted to.” 17 She repeated this denial under
oath at trial. This, however, was contradicted not only by the
appellant, but by two witnesses who testified they personally
observed the appellant and ABE2 LB engaging in sexual activity
in their presence in October 2011. While the specific details
recalled by the witnesses varied, the substance of their
testimony was challenged only by ABE2 LB’s denial.

     Nevertheless, the fact she may have been lying about these
two matters does not necessarily lead to the conclusion that she
was lying about the core allegations; having had the opportunity

17
     

                                6
to observe all the witnesses at trial, the members chose to
believe some parts of her testimony and not others, which they
are free to do. 

. We likewise are
convinced beyond a reasonable doubt. The specification of which
the members convicted the appellant was supported by strong
corroborative, albeit circumstantial, evidence, including not
only ABE2 LB’s well-documented reaction of immediate shock and
distress and prior consistent statements, but the appellant’s
own testimony that after the sexual act, ABE2 LB was not aware
of who he was or even that she was in her own room. It is also
supported by evidence of the appellant’s consciousness of guilt,
from furtively fleeing the scene, to changing his clothes, to
lying about any sexual encounter with ABE2 LB.

     The appellant further maintains that even setting aside
ABE2 LB’s credibility, evidence regarding her level of
intoxication prior to and following the incident supports that
the appellant had a reasonable mistake of fact. We disagree.
Evidence that half an hour prior to falling asleep or passing
out on the appellant’s bed and immediately following the
incident, ABE2 LB was able to walk without stumbling, for
instance, does little to contradict the evidence that she fell
into a deep, alcohol-assisted sleep and had to be assisted to
her room. The appellant was present as others messed with her
as she slept, then struggled to rouse her and carried her out.
The appellant admitted going to her room shortly after this and
knocking on her door for approximately two minutes with no
response, a further indication of the appellant’s knowledge of
ABE2 LB’s condition. Given all the evidence, we are convinced
beyond a reasonable doubt that the appellant knew or reasonably
should have known that ABE2 LB was incapable of declining
participation in the sexual act.

                            Panel Member Selection

     The appellant’s next two AOEs relate to the panel member
selection process. First, he asserts that members below the pay
grade of E-7, above the pay grade O-5, and all warrant and chief
warrant officers were impermissibly and systematically excluded
from the nomination process by the CA. In July 2008, Commander,
Naval Air Force Atlantic (COMNAVAIRLANT) issued an instruction 18
to subordinate commands establishing the procedure for
nominations of prospective court-martial members. That
instruction directed each subordinate command to provide a

18
     COMNAVAIRLANTINST 5813.1H, 29 July 2008.


                                         7
certain number of nominees in the grades of O-5, O-4, “LT
[Lieutenant] or Below” and “Enlisted (E7/E8/E9).” 19 The
instruction did not call for nominees below E-7, regardless of
how junior a particular appellant may be, and did not call for
anyone O-6 or above. 20 The court-martial convening order and its
two amendments for this case detailed no E-7s and below, no
Warrant or Chief Warrant Officers, and no O-6s and above.

     Second, the appellant alleges a discovery violation as he
was not provided a copy or aware of the existence of the
instruction until after the trial concluded——despite his pre-
trial request for such matters. The trial defense counsel thus
did not raise the allegation of impermissible exclusion by rank
at trial, raising it for the first time in his post-trial
clemency matters.

Impermissible Exclusion

     We review claims of error in the selection of court-martial
members de novo. United States v. Kirkland 

, 24
(C.A.A.F. 2000). We look at three primary factors to determine
whether an impermissible member selection has taken place:

        1. Improper motive in packing a member pool;

        2. Systematic exclusion of potential members based on
        rank or other impermissible variable; and,

        3. Good faith attempts to be inclusive and open the
        court-martial process to the entirety of the military
        community.

United States v. Dowty, 

, 171 (C.A.A.F. 2004). If
either of the first two criteria is present, the process is
impermissible. 

are not only considered in
the actual panel selection process, but also in the process of
presenting nominations to the CA. United States v. Roland, 

, 69 (C.A.A.F. 1999).

     In a case of systematic exclusion of members by rank, it is
the responsibility of the defense to establish the improper
exclusion. 

. Once improper exclusion

19
     

20
  It is unclear, as the Government concedes, whether the “LT or Below”
language intended only O-1 to O-3 nominees or permitted nomination of warrant
and chief warrant officers.
                                      8
has been shown, the burden shifts to the Government “to
demonstrate that the error did not ‘materially prejudice the
substantial rights of the accused.’” 

(quoting Art. 59(a), UCMJ).

     In assessing whether the Government has carried its burden
to demonstrate a lack of prejudice, we consider whether:

     (1) the convening authority enacted or used the
     instruction with a proper motive; (2) the convening
     authority's motivation in detailing the members he
     assigned to the court-martial panel was benign; (3)
     the convening authority who referred the “case to
     trial was a person authorized to convene” the court-
     martial; (4) the appellant “was sentenced by court
     members personally chosen by the convening authority
     from a pool of eligible” members; (5) the court
     members “all met the criteria in Article 25, UCMJ;”
     and (6) “the panel was well-balanced across gender,
     racial, staff, command, and branch lines.”

United States v. Ward, 

, slip op. at 9 (C.A.A.F.
2015) (quoting United States v. Bartlett, 

, 431
(C.A.A.F. 2008).

     We applied the above analytical approach in Thompson I. We
found the appellant established that the instruction had the
effect of improperly excluding potential members from the
selection process on the basis of rank and that the burden thus
fell on the Government to demonstrate a lack of harm. We then
held the Government failed to meet its burden because it offered
no evidence by which we could assess prejudice.

     Subsequent to our decision, the Government made its first
motion for reconsideration——yet inexplicably still failed to
offer any competent evidence by which we could assess prejudice
and the Government could meet its burden. However, shortly
after the United States Court of Appeals for the Armed Forces’
(CAAF) decision in Ward, a case analyzing the same instruction,
the Government made a second motion for reconsideration.
Although beyond prescribed time limits, this time they also
moved to attach affidavits from the CA and his Force Judge
Advocate. 21

21
  The Force Judge Advocate at the time was Captain Frederick D. Mitchell,
U.S. Navy, who is now Chief Judge of this court. Captain Mitchell has
recused himself from any participation in or discussion of this case.


                                      9
     The appellant filed a spirited opposition to the
Government’s untimely motions, asserting that under the Courts
of Criminal Appeals Rules of Practice and Procedure, which are
incorporated into this court’s Rules of Practice and Procedure,
it is “obligated to deny the Government’s Second Motion for
Reconsideration en banc.” 22 He further contended the request
should be denied because the original decision was correct, even
accounting for the CAAF’s recent decision in Ward.

     While the full court denied the request for en banc
reconsideration, we granted panel reconsideration and the motion
to attach the affidavits, despite both being untimely. We
briefly discuss our rationale for doing so before moving to the
merits of the matter.

     The appellant correctly points to Rule 19(b) of the Rules
of Practice and Procedure, which provides, in pertinent part,
that we may, in our discretion, reconsider a prior decision upon
a motion filed by appellate government counsel within 30 days
after the decision is received by counsel. The Government’s
second motion for reconsideration was filed substantially after
that time period had passed. Rule 24, however, provides that we
may, in our discretion, extend any time limits prescribed and
Rule 25 states we may, for good cause shown, suspend the
requirements or provisions of any of the rules. This authority
is limited, however, by Rule 19(d), which provides:

     The time limitations prescribed by this rule shall not
     be extended under the authority of Rule 24 or Rule 25
     beyond the expiration of the time for filing a
     petition for review or writ appeal with the United
     States Court of Appeals for the Armed Forces, except
     that the time for filing briefs by either party may be
     extended for good cause.

     At the time the Government filed its second motion for
reconsideration, it was still within its timeframe for filing a
certificate of review with the CAAF. See CAAF Rules of Practice
and Procedure 19(b)(3) and 34(a) (a certificate for review shall
be filed no later than 60 days after final action on a timely
filed petition for reconsideration). Accordingly, contrary to
the appellant’s assertion, we have the authority to suspend
operation of Rule 19(b) and extend the time limit for the
Government to move for reconsideration.
22
  Appellant’s Response to Appellee’s Out-of-Time Motions for Leave to File a
Second Motion for En Banc Reconsideration and Non-Consent Motion to Attach
Affidavits to the Record filed on 14 Jul 2015 at 1.
                                     10
     We find there is good cause to do so. The CAAF has
explained that while “good cause” in the context of filing an
untimely petition “does not lend itself to precise definition,”
it represents “a discretionary judgment on the part of this
Court” that the movant “can establish some reasonable basis
justifying . . . relief from that default. We have also said
that as part of this showing of good cause counsel should assign
some meritorious issue.” United States v. Tamez, 

,
203 (C.A.A.F. 2006) (citations and internal quotation marks
omitted). Applying this definition, we find there is a
reasonable basis for relieving the Government of its default.

     This is not based on the Government necessarily being able
to justify its delay in offering competent evidence to meet its
burden. Indeed, we continue to be perplexed by the Government’s
failure to provide affidavits earlier in the appellate
litigation of this case. Despite their purported confusion over
the difference in outcomes in Thompson I and other cases
involving the same instruction——including Ward——it should have
been apparent that in those other cases the Government offered
the court competent evidence in the form of affidavits by which
we could determine the Government met its burden——and that in
this case they had not. Presentation of competent evidence to
meet a party’s burden is a litigation basic, whether at a trial
or appellate level.

     Nonetheless, while we do not find Ward contrary to the
analytical approach we followed in Thompson I, it is fair to say
it addressed precisely the same instruction at issue here and
clarified the legal standard for assessing prejudice resulting
from it. It also emphasized the importance the CAAF placed on
post-trial affidavits in assessing prejudice. Ward 

,
slip op. at 12 (“a review of the post-trial affidavits shows an
honest, though erroneous, attempt to meet the requirements of
both Article 25, UCMJ, and the command’s mission”). At any
rate, we are now presented the opportunity to reconsider the
issue in light of the CAAF’s recent guidance on it.

     Further——and more importantly——the Government, at last
offering competent evidence, can demonstrate merit to their
contention that there was no prejudice resulting from the
instruction. Continuing to set aside the findings and sentence
when we can now readily determine there was no prejudicial error
would only represent a windfall to the appellant.

     Turning to the merits, in reviewing the affidavits and the
record as a whole, we find: (1) no evidence that the errant

                               11
instruction was issued with an improper motive; (2) no evidence
that the CA had an improper motive when detailing the members
assigned to the appellant's court-martial; (3) the CA was a
person authorized to convene a general court-martial; (4) the CA
was properly advised of his Article 25 responsibilities, and
that he could pick any member of his command, not just those who
had been nominated; (5) the court members were personally chosen
by the CA from a pool of eligible candidates; and, (6) the court
members all met the criteria in Article 25, UCMJ. 23 Under these
circumstances, we are convinced that the appellant’s case was
heard by a fair and impartial panel, and that the error in this
case was harmless. See 

.

Discovery Violation

     In the course of the discovery process, the appellant
requested all information which the CA and his advisors used in
the nomination of prospective members and in the final selection
of the court members for the court-martial orders issued in this
case. The instruction discussed above, which had the effect of
systematically excluding members based on rank, was not provided
to the defense, despite their request.

     Even assuming a discovery violation, we nonetheless decline
to grant relief. When there has been a discovery violation, we
test that violation for prejudice. In cases where the appellant
either did not make a discovery request or made only a general
request for discovery, the Government has the burden of proving
that the error was harmless. However, in those cases where the
appellant made a specific request for the undisclosed
information, the Government must show that the error was
harmless beyond a reasonable doubt. United States v. Roberts,

, 327 (C.A.A.F. 2004).

     We find the appellant’s discovery request specific enough
to trigger the heightened requirement of proof of harmlessness
beyond a reasonable doubt. Nevertheless, even applying that
higher standard, for the same reasons articulated above, we find


23
  Regarding the final Bartlett factor——whether the panel was well-balanced
across gender, racial, staff, command, and branch lines——it should be noted
that the lack of women and African-Americans on the panel was raised as an
issue at trial. Nonetheless, as the military judge found below, the evidence
indicates that the CA properly applied Article 25, UCMJ criteria and had no
improper motive in making his selections. See Record at 523-25.
Accordingly, we find that even to the extent the panel may not have been
well-balanced across gender and racial lines, the Government on balance still
has demonstrated a lack of prejudice.
                                     12
that the appellant was tried by a fair and impartial panel and
that the discovery error was harmless beyond a reasonable doubt.

                            Conclusion

     Accordingly, the findings and the sentence as approved by
the CA are affirmed.

     Judge MARKS concurs.


HOLIFIELD, Judge (dissenting):

     I disagree with the majority’s conclusion that the evidence
presented at trial is factually sufficient. I therefore
respectfully dissent.

     The evidence presented at trial is relatively
straightforward as it pertains to events before and after the
appellant was in Aviation Boatswain’s Mate (Equipment) Second
Class (ABE2) LB’s room on 27 April 2012. The question, of
course, is what happened in the room. With little independent
evidence to corroborate either description of events, the matter
comes down to credibility.

     The appellant’s explanation is, on its face, neither
unreasonable nor unbelievable. ABE2 LB did, in fact, have the
appellant’s computer power cord. Based on their long friendship
and earlier instances where ABE2 LB had given her hotel key to
the appellant so that he could retrieve items from her room, it
is not unreasonable that the appellant believed ABE2 LB would
not mind if he entered her room to reclaim his power cord. It
is also not unreasonable that, given their history, he did not
question ABE2 LB’s apparent invitation to join her in the bed
and engage in sexual activity. Finally, the fact that fibers
similar to those from the appellant’s underwear were found on
ABE2 LB’s underwear tends to support his description of pre-
intercourse activity.

     Furthermore, there are numerous issues with ABE2 LB’s
credibility. First, it appears she perjured herself, both on
the witness stand and in her sworn statement to the Naval
Criminal Investigative Service (NCIS). Two witnesses with no
obvious motive to fabricate testified that they witnessed the
appellant and ABE2 LB engage in sexual activity six months
before the alleged assault. Yet, ABE2 LB unequivocally denied
it. That she and the appellant had a previous sexual

                                 13
relationship does not, of course, prove she consented to the
sexual activity on 27 April. That she would seem to lie about
this point in a court of law, however, casts doubt on the
completeness and accuracy of her remaining testimony. Second,
neither the vague testimony regarding ABE2 LB’s alcohol
consumption, nor the hotel video, supports that ABE2 LB was
intoxicated to the extent that her purported lack of memory
would imply. Third, the absence of any physical evidence to
support her claim of being the victim of a forceful rape and
attempted anal sodomy raises questions as to whether she
embellished the facts to support her allegation. Similarly, it
appears - in both her statement to NCIS and answers in the
Sexual Assault Nurse Examination report - that ABE2 LB was
selective in what facts she shared, withholding or denying facts
that may have served to undermine her story.

     This court need not be convinced that the appellant’s
description of events is true. As the burden of proof is not
the appellant’s, we need only determine whether the Government
has disproven the appellant’s affirmative defenses of consent
and mistake of fact as to consent beyond a reasonable doubt. I
find it has not. There is very little evidence aside from ABE2
LB’s testimony that challenges the appellant’s claim of consent
or mistake of fact, and the issues surrounding ABE2 LB’s
veracity leave me questioning her version of events.

     After weighing the evidence and judging the credibility of
the witnesses, while noting my statutory obligation to
“recognize that the trial court heard and saw the witnesses,” 24 I
am not convinced of the appellant’s guilt beyond a reasonable
doubt. According, I would set aside the findings of guilty and
dismiss Charge I and Specification 2 thereunder with prejudice.

                                         For the Court



                                         R.H. TROIDL
                                         Clerk of Court




24
     Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c).
                                        14