This opinion is subject to administrative correction before final disposition.




                               Before
                 FULTON, CRISFIELD, and HITESMAN,
                      Appellate Military Judges

                        _________________________

                          UNITED STATES
                              Appellee

                                     v.

                       Joshua S. KING, Jr.
               Master-at-Arms Seaman (E-3), U.S. Navy
                             Appellant

                             No. 201800016

             Argued: 14 February 2019; Decided: 23 July 2019

 Appeal from the United States Navy-Marine Corps Trial Judiciary.
 Military Judge: Captain Robert P. Monahan, JAGC, USN. Sentence
 adjudged 16 January 2018 by a general court-martial convened at
 Naval Station Norfolk, Virginia, consisting of officer and enlisted
 members. Sentence approved by the convening authority: reduction to
 E-1, forfeiture of all pay and allowances, confinement for eight years,
 and a dishonorable discharge.

 For Appellant: Matthew Flynn, Esq. (argued); Brian A. Pristera, Esq.
 (on brief); Major Maryann N. McGuire, USMC (on brief).

 For Appellee: Captain Luke Huisenga, USMC (argued); Captain Brian
 L. Farrell, USMC (on brief).

 Senior Judge HITESMAN delivered the opinion of the Court, in which
 Chief Judge CRISFIELD and Senior Judge FULTON joined.
                       United States v. King, No. 201800016


                             _________________________

           This opinion does not serve as binding precedent but
           may be cited as persuasive authority under NMCCA
                   Rule of Practice and Procedure 30.2.

                             _________________________

HITESMAN, Senior Judge:
    Appellant was convicted, contrary to his pleas, of sexual assault in viola-
tion of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920
(2012).
    The appellant raises five assignments of error (AOE): (1) that Article
120(b)(1)(B), UCMJ, is void for vagueness, (2) that the military judge failed to
instruct the members that lack of consent is an element of sexual assault by
bodily harm, (3) that trial counsel’s inflammatory remarks prejudiced the
panel, (4) that the evidence was legally and factually insufficient to convict
the appellant, and (5) that the military judge erred by not admitting evidence
of the victim’s sexual behavior or predisposition.
   The appellant raised an additional AOE regarding appellate defense
counsel’s access to sealed mental health records viewed in camera by the
military judge and not disclosed to counsel at trial. We viewed the records in
camera and determined that the mental health records contained “no evi-
dence required by the Constitution to breach the victim’s psychotherapist-
patient privilege.” 1 Accordingly, we find this AOE is without merit.
    Having examined the record of trial and the pleadings of the parties and
considered oral argument, we find no merit in any of the AOEs and affirm the
findings and sentence.

                                  I. BACKGROUND

   The appellant was convicted of sexually assaulting KM by entering her
room, grabbing and pulling her legs to the side of the bed and penetrating her
vulva with his penis. It was dark, and as KM realized what was happening,
she asked who was doing this to her. The appellant responded that it was
K.M.’s best friend, Gunner’s Mate First Class HG. Appellant then flipped KM
over onto her stomach and penetrated her vulva with his fingers and then



   1   N-M. CT. CRIM. APP. Order dtd 3 April 2019.



                                          2
                     United States v. King, No. 201800016


again with his penis while he held her arm behind her back and pushed her
shoulder into the bed.
    Earlier in the evening, the appellant, KM, and two friends of KM, JB and
SB, attended an informal dinner party at HG’s house. All were drinking
alcohol to various levels of intoxication. At about 2300, KM went to her room
to go to sleep. Shortly thereafter, HG went to his room for the night. Some-
time later that evening, the appellant and JB engaged in consensual sex
outside the house, in the garage, in JB’s car, and on the back porch. JB ab-
ruptly ended their sexual encounter when the appellant called her a whore.
JB decided to sleep in her car and the appellant moved to the living room
where SB was sleeping on the couch. The appellant attempted to arouse SB
who, in an effort to thwart his advances, eventually kissed him, stood up with
him, and then pushed him down onto a nearby loveseat. SB then went to
bring JB inside from her car. When SB and JB returned to the living room,
they did not see the appellant as they made their way upstairs to find a place
to sleep.
    The house was warm and KM decided to sleep nude on top of the covers of
her bed. SB entered KM’s room looking for a place to sleep but decided to look
elsewhere when she saw KM nude and asleep. SB closed the door but left the
light on as she left KM’s room. A short time later, the appellant entered KM’s
room and assaulted her.
   Additional facts necessary to the resolution of particular assignments of
error are included in the discussion.

                               II. DISCUSSION

A. Void for Vagueness
   The appellant argues that Art. 120(b)(1)(B), UCMJ, is unconstitutionally
vague because it fails to provide adequate standards by which an ordinary
person can intelligently choose, in advance, whether a sexual encounter is
permitted under the law. We disagree.
   A statute is unconstitutionally vague if it does not provide a Service
Member of ordinary intelligence fair notice of what is prohibited, or if it is so
standardless that it authorizes or encourages discriminatory enforcement.
See United States v. Williams, 

, 304 (2008). We review vagueness
determinations de novo. United States v. Disney, 

, 48 (C.A.A.F.
2005).
   A Service Member must have standing in order to challenge a statute as
vague. Even where one could imagine a hypothetical fact pattern presenting
vagueness concerns for a given statute, if the appellant’s alleged conduct is


                                       3
                     United States v. King, No. 201800016


clearly proscribed, he has no standing to challenge the law. United States v.
McGuinness, 

, 152 (C.M.A. 1992). Here, the appellant allegedly
entered KM’s room, grabbed her legs and pulled them to the side of the bed,
penetrated her vulva with his penis, told her that he was her friend HG,
flipped her over onto her stomach while twisting her arm and pressing her
shoulder into the bed, and penetrated her with his fingers and again with his
penis until he ejaculated. The appellant has been given fair notice that to the
extent this conduct amounted to sexual assault by bodily harm, such conduct
was proscribed by the statute. The record is devoid of any facts that would
place the appellant in a position where the sex act was consensual but com-
mitted concurrently with an otherwise unrelated offensive touching as he
hypothesizes.
    We leave to the trier of fact, subject to our legal and factual sufficiency re-
view, the question of whether the appellant committed the acts alleged, and
whether they constitute sexual assault under Art. 120(b)(1)(B), UCMJ. These
questions go to whether the appellant did in fact commit a sexual assault in
violation of the statute, and do not cast doubt on whether the statute prohib-
its sexual assault by bodily harm with sufficient clarity that the appellant
could have understood that his alleged conduct was proscribed. See 

(“Close cases can be imagined under virtually any statute.
The problem that poses is addressed, not by the doctrine of vagueness, but by
the requirement of proof beyond a reasonable doubt.”). We find that the ap-
pellant does not have standing to complain that Art. 120(b)(1)(B), UCMJ, is
unconstitutionally vague.

B. Lack of Consent
   The appellant complains that the military judge erred when he instructed
the members on the elements of the offense of sexual assault by bodily harm.
Specifically, the appellant now urges us to find that lack of consent is an
element that the government must prove beyond a reasonable doubt. We
disagree.

   1. Waiver
    RULE FOR COURTS-MARTIAL (R.C.M.) 920(e), MANUAL FOR COURTS-
MARTIAL (MCM), UNITED STATES (2016 ed.) requires the military judge to
instruct on the elements of each offense. R.C.M. 920(f) provides that failure to
object to an instruction, or to the omission of an instruction, before the mem-
bers close to deliberate constitutes waiver of the objection in the absence of
plain error. “[W]aiver must be established by affirmative action of the ac-
cused’s counsel, and not by a mere failure to object to erroneous instructions
or to request proper instructions.” United States v. Smith, 

, 455-
56 (C.A.A.F. 1999) (internal quotations omitted). In general, a statement of


                                        4
                         United States v. King, No. 201800016


“‘no objection’ constitutes an affirmative waiver of the right or admission at
issue.” United States v. Swift, 

, 217 (C.A.A.F. 2017).
    The appellant’s civilian defense counsel participated in a discussion with
the military judge and trial counsel regarding the proposed findings instruc-
tions. The civilian defense counsel did not request that the military judge
instruct the members that lack of consent is an element of Art. 120 (b)(1)(B),
UCMJ. When asked by the military judge if he had any objections to the
proposed instructions or if he had any requests for additional instructions,
the civilian defense counsel stated: “No, Your Honor, I do not.” 2 Additionally,
during a previous R.C.M. 802 conference, the civilian defense counsel stated
that he was “wholly satisfied” with the draft instructions provided by the
military judge. 3 This goes well beyond a mere “no objection” assertion and
amounts to an affirmative waiver of the instructional issue he now raises.

   2. Plain error
    Even assuming arguendo that the appellant did not affirmatively waive
the issue, we review forfeited instructional error, de novo, for plain error.
United States v. Davis, 

, 229 (C.A.A.F. 2017). To prevail under
plain error, the appellant has the burden of demonstrating that there was
error, the error was plain or obvious, and the error materially prejudiced a
substantial right of the accused. 

    As enacted by Congress, Art. 120(b)(1)(B), UCMJ has two elements: (1) a
sexual act, and (2) bodily harm caused to the other person. 4 Only Congress
has the power to “make Rules for the Government and Regulation of the land
and naval forces.” Schlesinger v. Councilman, 

, 746 (1975) (quot-
ing U.S. CONST. art I § 8). In recognition of that power, “the definition of the
elements of a criminal offense is entrusted to the legislature.” United States
v. Castellano, 

, 220 (C.A.A.F. 2013) (quoting Liparota v. United
States, 

, 424 (1985)). When Congress established the elements of
sexual assault by bodily harm, it did not include “lack of consent.” See gener-
ally United States v. Riggins, 

, 83 (C.A.A.F. 2016) (holding that the
offense of sexual assault by placing the other person in fear under Article
120(b)(1)(A), UCMJ, does not include “lack of consent” as an element). The




   2   Record at 1462.
   3   

   4   10 U.S.C. §920(b)(1)(B); MCM (2012 ed.), Part IV, ¶45.b.(3)(b).



                                            5
                      United States v. King, No. 201800016


MCM as amended 5 provides support to the statute, clearly stating, “[l]ack of
consent is not an element of any offense under this paragraph unless express-
ly stated.” MCM (2016 ed.), Part IV, ¶45.c.(4). Since lack of consent is not a
statutory element, the military judge did not err by not including it as an
element of the offense in his instructions to the members.
    Moreover, the appellant was not prejudiced by the members’ instructions
because the military judge provided the definition of bodily harm, and sua
sponte over trial counsel’s objection, provided the definition of consent and
instructed the members on the mistake of fact as to consent defense. The
appellant argues that the military judge erred because he did not instruct the
members that the government was required to prove beyond a reasonable
doubt that the victim did not consent to the sex act. First, the members were
instructed that bodily harm meant “any offensive touching of another, how-
ever slight.” 6 As the Court of Appeals for the Armed Forces (CAAF) stated in
United States v. Armstrong, “an offensive touching cannot be consensual
because then it would not be offensive.” 

, 471 (C.A.A.F. 2018).
Next, the military judge instructed the members on consent. Although he did
not refer to it as an element of the offense or that the government was re-
quired to prove lack of consent beyond a reasonable doubt, he explained that:
         Lack of consent may be inferred based upon the circumstances.
         . . . All of the evidence concerning consent to the sexual conduct
         is relevant and must be considered in determining whether the
         government has proven the elements of the offenses. Stated
         another way, evidence the alleged victim consented to the sex-
         ual conduct, either alone or in conjunction with the other evi-
         dence in this case, may cause you to have a reasonable doubt as
         to whether the government has proven every element of each
         offense. 7
    Finally, the military judge gave the mistake of fact as to consent instruc-
tion. 8 This defense requires the government to prove, beyond reasonable



   5 Exec. Order No.13740, 81 Fed. Reg. 65175 (Sep. 22, 2016). This court finds this
order informative noting that it was issued 3 months after the date of the charged
offenses and almost 5 years after Article 120, UCMJ was amended by the National
Defense Authorization Act for Fiscal Year 2012, Public Law 112-81, 31 December
2011.
   6   AE LXXXVI at 2; Record at 1469.
   7   AE LXXXVI at 2-3; Record at 1470.
   8   AE LXXXVI at 3; Record at 1471.



                                           6
                          United States v. King, No. 201800016


doubt, either that the appellant did not believe the victim consented to the
sex act or that the appellant’s belief as to consent was unreasonable. Accord-
ingly, the military judge’s instruction on the statutory elements of the offense
was not error, much less plain error.

C. Improper Argument
    The appellant contends that the assistant trial counsel committed prose-
cutorial misconduct during closing argument when he made disparaging
remarks about the appellant and his civilian defense counsel and interjected
personal opinions on the evidence adduced by both the government and de-
fense.
    During closing argument, without objection, the assistant trial counsel:
(1) proposed to the members that the civilian defense counsel could have been
experiencing a “brown out,” 9 (2) argued that the appellant was in a “full-
blown sexual predatory rage,” 10 (3) attacked the defense theory by analogiz-
ing the victim’s vagina to a venus flytrap and her bedroom door as an “analog
to her vagina,” (4) interjected his personal opinion of the defense theory of the
case by comparing it to finding a “sexual unicorn” or a “white buffalo,” or
winning the “sexual lottery,” (5) argued to the members that “it is our job to
stop this now” because the appellant “will do it to somebody else,” 11
(6) vouched for the government’s case and witnesses, and (7) asked the mem-
bers to imagine themselves at a dinner party several weeks after the court-
martial defending their decision to convict the appellant. 12 The assistant trial
counsel was also admonished by the military judge for smiling during the
civilian defense counsel’s argument. Finally, during rebuttal argument, the


   9 Although we do not find error in the assistant trial counsel’s particular argu-
ment on this point, all counsel are cautioned that using opposing counsel or any other
member of the court-martial as a trial prop is a risky venture.
   10 Given the specific evidence admitted during the trial, we do not find this char-
acterization to be error. Even if it were error, the comment occurred a single time and
was not prejudicial to the appellant by itself or cumulatively with the other improper
arguments.
   11   Record at 1521.
   12 We find no error in the hypothetical dinner party conversation proposed by the
assistant trial counsel. “Although poorly contrived, the hypothetical was nothing
more than a simplified summary of the facts before the members.” United States v.
Patrick, 

, 711 (N-M. Ct. Crim. App. 2018). Moreover, the civilian defense
counsel adroitly turned this hypothetical against the government’s case and effective-
ly used it to show how the members could justify acquitting the appellant of the
charges based on the evidence admitted at trial.



                                           7
                     United States v. King, No. 201800016


trial counsel vouched for the victim’s credibility and misstated the law re-
garding the relevance of properly admitted evidence.
    Prosecutorial misconduct occurs when a prosecutor “oversteps the bounds
of that propriety and fairness which should characterize the conduct of such
an officer in the prosecution of a criminal offense.” United States v. Fletcher,
62 M.J. 175,178 (C.A.A.F. 2005) (quoting Berger v. United States, 

,
84 (1935)). In general, it is “defined as action or inaction by a prosecutor in
violation of some legal norm or standard, e.g., a constitutional provision, a
statute, a Manual rule, or an applicable professional ethics canon.” United
States v. Meek, 

, 5 (C.A.A.F. 1996) (citing Berger v. United States,

, 88 (1935)). The conduct of the “trial counsel must be viewed
within the context of the entire court-martial . . . not [just] on words in isola-
tion.” United States v. Baer, 

, 238 (C.A.A.F. 2000) (quoting United
States v. Young, 

, 16 (1985)).
    Improper argument is a type of prosecutorial misconduct that involves a
question of law that we review de novo. United States v. Andrews, 

, 398 (C.A.A.F. 2018). When objected to at trial, we review improper ar-
gument for prejudicial error. 

objection is made, we hold the
appellant has forfeited his right to appeal and review for plain error.” 

“requires that: (1) an error was committed; (2) the error was
plain, or clear, or obvious; and (3) the error resulted in material prejudice to
substantial rights.” United States v. Pabelona, 

, 11 (C.A.A.F. 2017)
(internal citations and quotation marks omitted).
    We find plain or obvious error in some, but not all, of the challenged parts
of the trial counsel’s argument to which the defense did not object.

   1. Inflaming the prejudices and passions of the members
    It is a basic rule of our profession that a “prosecutor should not make ar-
guments calculated to appeal to improper prejudices of the trier of fact. The
prosecutor should make only those arguments that are consistent with the
trier’s duty to decide the case on the evidence, and should not seek to divert
the trier from that duty.” CRIMINAL JUSTICE STANDARDS FOR THE PROSECU-
TION FUNCTION STANDARD 3-6.8(c) (AM. BAR ASS’N 2015). 13 As courts have
often stated, “the trial counsel is at liberty to strike hard, but not foul, blows.”

. To that end, the R.C.M. and our case law provide that it



   13  See Judge Advocate General Instruction 5803.1E, Rule 3.8(e)(6) (20 Jan. 2015)
(“To the extent consistent with these Rules, the ABA standards may be used to guide
trial counsel in the prosecution of criminal cases.”) (citation omitted).



                                         8
                          United States v. King, No. 201800016


is error for trial counsel to make arguments that “unduly . . . inflame the
passions or prejudices of the court members.” United States v. Clifton, 

, 30 (C.M.A. 1983); R.C.M. 919(b), Discussion. An accused is supposed to be
tried and sentenced as an individual based on the offense(s) charged and the
legally and logically relevant evidence presented. It is generally impermissi-
ble to ask members to perform a role beyond evaluating the evidence. See,
e.g., 

(finding error in imploring the jury to “do its job”);
Brown v. State, 680 S.E.2d. 909, 912-15 (S.C. 2009) (finding error in asking
the jury to “speak up” for child victim). Several of trial counsel’s remarks run
counter to these basic principles.
    The assistant trial counsel argued extreme analogies to attack the defense
theories. First, trial counsel attacked the defense’s theory of victim false
accusation by creating a strawman hypothetical situation where “she is sit-
ting up there with her vagina like a venus flytrap waiting for” the appellant
in order for him to have sex with her “so she can falsely accuse him later.” 14
Next, trial counsel argued that the appellant must have believed the victim’s
bedroom door was “an analog to her vagina . . . if the door is open then you
can have sex with her.” 15 The premise of the trial counsel’s argument is not
the issue but the analogies appear designed to inflame the prejudices and
passions of the members. Moreover, using the victim’s vagina as the punch-
line to a shocking analogy also conflicts with the victim’s “right to be treated
with fairness and with respect for [her] dignity and privacy.” 16 The use of
unnecessary crude and vulgar analogies also detracts from the dignity of the
military justice system.
    The assistant trial counsel closed his argument quoting HG’s testimony
and implored the members that “it is our job to stop this now” 17 because
“[MASN King] will do it to somebody else.” 18 HG made the quoted statements
to KM in an effort to convince her to report the sexual assault but they bear
no relevance on the appellant’s guilt and could only have served to inflame
the passions or prejudices of the members. We find no legal basis that sup-
ports the trial counsel’s invocation to the members to perform an impermissi-
ble role and convict the appellant, not on the evaluation of the evidence be-




   14   Record at 1520-21.
   15   

   16   Art. 6b(8), UCMJ.
   17   Record at 1521.
   18   

States v. King, No. 201800016


fore them, but based on the fear that the appellant might sexually assault
someone in the future.

   2. Interjection of personal beliefs and opinions
    “It is improper for a trial counsel to interject herself into the proceedings
by expressing a personal belief or opinion as to the truth or falsity of any
testimony or evidence.” 

(citations and internal quota-
tion marks omitted). Personal beliefs and opinions may be in the form of
improper vouching for the government’s case or by offering personal views of
the evidence and appellant’s guilt. See 

    Improper expression of the trial counsel’s views of the evidence can in-
clude “offering substantive comments on the truth or falsity of the testimony
and evidence.” 

The assistant trial counsel argued that finding KM
consented to the sex act is as impossible as “[winning] the sexual lottery,” 19
“[finding] a white buffalo,” 20 and “[finding] the sexual unicorn.” 21 The assis-
tant trial counsel argued his opinion of the defense case rather than using the
facts admitted into evidence to argue that KM did not consent, the appellant
did not believe KM consented, or that appellant’s belief that KM consented to
the sex act was unreasonable. The argument is comparable to the improper
argument in Fletcher describing the defense as “nonsense, fiction, unbelieva-
ble, ridiculous, and phony.” 

marks omitted). Addition-
ally, during rebuttal argument, the trial counsel expressed his opinion of
KM’s credibility stating: “I feel like it’s already been pretty well established
that [KM] is a credible person.” 22 We find that the arguments of the trial
counsel and assistant trial counsel that express their personal opinions of the
defense’s case and witness credibility are clear error.
    Improper vouching occurs when the trial counsel places the “prestige of
the government behind” its witnesses and evidence. 

States v. Necoechea, 

, 1276 (9th Cir. 1993)). In this case, assis-
tant trial counsel stated “[i]t is a big thing for the United States government
to collectively point our finger at a Sailor, even one that’s on the way out of
the Navy and say, ‘you committed a crime.’ So we better have the goods and
we have the goods.” 23 While improperly expressing his opinion of the justness


   19   Record at 1517-18.
   20   

   21   

at 1582.
   23   

                                       10
                       United States v. King, No. 201800016


of the charges, the assistant trial counsel implied that the United States does
not charge Sailors unless they are guilty. This remark is clear error due to
the use of personal pronouns in connection with the power and prestige of the
United States government placed behind the government’s witnesses and
evidence. See 

   3. Objections raised
    Unlike the above, the civilian defense counsel objected to two improper
actions and arguments made by the trial counsel team. First, the civilian
defense counsel noted that the assistant trial counsel was smiling during the
defense’s closing argument and requested the court instruct him to stop. The
assistant trial counsel’s facial gestures constitute improper vouching or inter-
jecting his personal opinion of the argument of defense counsel. In response
to defense counsel’s request, the military judge instructed the assistant trial
counsel “to maintain a neutral face at all times.” 24 Second, the trial counsel
referred to consent and properly admitted evidence as irrelevant numerous
times before the civilian defense counsel objected. The military judge in-
structed the members to “disregard any statement by the trial counsel that
there are facts in this case that have been admitted that are not relevant.” 25
We will review the prejudicial impact of these improper actions below, along
with the prejudicial impact of the improper arguments not objected to at
trial.

   4. Prejudice to the appellant
    Finding error in some of the complained about arguments of the trial
counsel team, we now turn to the third element of our plain error analysis
and examine the record for prejudice. 

. In cases of
prosecutorial misconduct, we evaluate potential prejudice by examining the
severity of the misconduct, the measures adopted to cure the misconduct, and
the weight of the evidence supporting the conviction. 

.
“[P]rosecutorial misconduct by a trial counsel will require reversal when the
trial counsel’s comments, taken as a whole, were so damaging that we cannot
be confident that the members convicted the appellant on the basis of the
evidence alone.” 

look at the severity of the misconduct. In United States v. Pabe-
lona, this court found that despite prosecutorial misconduct, the severity of




   24   

   25   

                                       11
                       United States v. King, No. 201800016


that misconduct was low because it was limited to the arguments of a
“lengthy four day trial” and consisted of “relatively isolated comments” and
“cover[ed] a small fraction of the trial.” No. 201400244, 2015 CCA LEXIS 424,
at *9 (N-M. Ct. Crim. App. Oct. 15, 2015), aff’d, 

(C.A.A.F. 2017).
The circumstances in this case are similar to those in Pabelona. The appel-
lant’s trial lasted for four days and the assistant trial counsel and the trial
counsel used improper arguments and remarks just a few times during ap-
proximately two hours of combined closing and rebuttal argument. 26 Taken
as a whole and in context of a lengthy and emotionally charged trial, both
trial counsels’ improper arguments and comments amounted to only a very
small fraction of the trial. Improper vouching for the government’s case and
asking the members to convict the appellant based on the fear that he might
sexually assault someone in the future were the most egregious of the trial
counsels’ infractions, but each comment occurred a single time and neither
was a central theme of the government’s case. Although some of the assistant
trial counsel’s remarks were extremely improper, 27 we find that the miscon-
duct taken in proper context was not unduly severe.
    Next, we look at whether there were any curative measures taken. Upon
civilian defense counsel’s request, the military judge admonished the assis-
tant trial counsel for smiling and instructed him to keep a neutral face during
the defense’s argument. Also, upon defense counsel’s objection to the trial
counsel’s misuse of the word “relevant,” the military judge instructed the
members to disregard any inferences from trial counsel’s misstatement of the
law referring to properly admitted evidence as irrelevant. When an improper
argument objection is raised, the curative instructions given by the military
judge are presumed to be adequate to alleviate the effect, if any, of the im-
proper argument on the members. See United States v. Short, 

,
151 (C.A.A.F. 2018) (“We presume, absent contrary indications, that the



   26   Record at 1485-1521, 1563-90.
   27 As Judge Sparks reminds all of us in United States v. Voorhees, __ M.J. __, No.
18-0372, 2019 CAAF LEXIS 477, at *18-19 (C.A.A.F. June 27, 2019),
         the consistent flow of improper argument appeals to our Court sug-
         gests that those in supervisory positions overseeing junior judge ad-
         vocates are, whether intentionally or not, condoning this type of con-
         duct. As superior officers, these individuals should remind their sub-
         ordinate judge advocates of the importance of the prosecutor’s role
         within the military justice system and should counsel them to “seek
         justice, not merely to convict.”
   (quoting 

).



                                          12
                       United States v. King, No. 201800016


panel followed the military judge’s instructions with regard to the . . . trial
counsel’s arguments.”) (internal quotation marks omitted). Although the
military judge did not take any specific curative measures for improper ar-
gument beyond what was objected to by civilian defense counsel, he did re-
peatedly instruct the members that the “arguments by counsel are not evi-
dence” and to “base the determination of the issues in the case on the evi-
dence as you remember it and apply the law as I instruct you.” 28 Finding no
evidence to the contrary, we find that the members followed the military
judge’s instructions.
    Finally, we consider the strength of the evidence against the accused. In
United States v. Halpin, the CAAF found that the weight of the evidence
supporting the appellant’s conviction alone was strong enough to establish a
lack of prejudice. 

, 480 (C.A.A.F. 2013). Here, the government’s
case for those offenses that resulted in conviction was overwhelming. The
evidence against the appellant included an admission by the appellant to HG,
within an hour of the assault, that he and the victim had been “intimate;”
DNA analysis that confirmed the appellant had ejaculated in KM’s vagina;
testimony that the appellant and the victim had no prior interaction; testi-
mony that the victim was last seen sleeping with the light on, that her the
door was shut; and finally, the government evidence included testimony from
KM that she was awakened by someone grabbing and pulling her legs to the
side of the bed, penetrating her vulva with his penis, claiming to be her best
friend, that she said “no,” that he flipped her over onto her stomach and
penetrated her with fingers and then again with his penis as he held her arm
behind her back and pushed her shoulder into the bed.
    Considering the isolated and brief nature of the government’s improper
comments and arguments and the strength of the government’s case com-
pared to the appellant’s case, we find that the appellant was not prejudiced.
In addition, as to the objections made by defense counsel and the military
judge’s curative instructions in response, we are confident in the members’
ability to adhere to the military judge’s instructions and put trial counsel’s
comments in proper context. We have no cause to question the fairness or
integrity of the trial and are convinced that the members convicted the appel-
lant on the evidence alone.




   28   Record at 1467, 1484-85, 1565, 1576.



                                          13
                    United States v. King, No. 201800016


D. Legal and Factual Sufficiency
    The appellant contends that his conviction for sexually assaulting KM is
legally and factually insufficient. We review questions of legal and factual
sufficiency de novo. Art. 66(c), UCMJ; United States v. Washington, 

, 399 (C.A.A.F. 2002). The test for factual sufficiency is whether “after
weighing the evidence in the record of trial and making allowances for not
having personally observed the witnesses, [this court is] convinced of appel-
lant’s guilt beyond a reasonable doubt.” United States v. Rosario, 

,
117 (C.A.A.F. 2017) (citation, internal quotation marks, and emphasis omit-
ted). In conducting this unique appellate function, we take “a fresh, impartial
look at the evidence,” applying “neither a presumption of innocence nor a
presumption of guilt” to “make [our] own independent determination as to
whether the evidence constitutes proof of each required element beyond a
reasonable doubt.” 

. Proof beyond a reasonable
doubt does not mean, however, that the evidence must be free from conflict.
United States v. Goode, 

, 841 (N-M. Ct. Crim. App. 2001). “The
test for legal sufficiency is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” United States
v. Robinson, 

, 297-98, (C.A.A.F. 2018) (quoting 

).
    As discussed above, the case against the appellant was strong. The appel-
lant does not contest the underlying sexual act, but avers that the finding is
legally and factually insufficient because KM may have consented to having
sexual intercourse with a man she believed to be her friend and roommate.
We disagree.
    KM may have been intoxicated and confused as she awoke, but her behav-
ior did not demonstrate consent. KM testified that she had never met the
appellant before that evening and that she did not flirt with him or give him
any signals that she wanted to have sex with him. She testified that she woke
up to being penetrated, and asked “who was doing this?” The man replied
that it was her friend HG. However, KM testified that she knew it was not
HG because of the way he was handling her, and that even if it were HG, she
would not have consented. KM told the appellant to stop several times and
tried to push him off her before he flipped her over. KM began to cry and
pleaded with him to stop but the appellant continued until he ejaculated and
then left the room. Shortly thereafter, KM texted HG and asked him if he had
been in her room. Within minutes, KM and HG concluded that the appellant
had been in KM’s room and had sexually assaulted her.
    Consequently, after carefully reviewing the record of trial and considering
all of the evidence in a light most favorable to the prosecution, we are con-


                                      14
                        United States v. King, No. 201800016


vinced that a rational factfinder could have found that the appellant commit-
ted a sexual act on KM by penetrating her vulva with his penis and that the
appellant did so by causing bodily harm to KM by restraining her legs, push-
ing her shoulder onto the bed, and twisting her arm behind her back. Moreo-
ver, a rational factfinder could have found that the appellant did not believe
that KM consented to the sexual act or that, if the appellant did believe that
KM consented to the sexual act, that the belief was unreasonable under the
circumstances. Furthermore, weighing all the evidence in the record and
making allowances for not having personally observed the witnesses, we too
are convinced beyond a reasonable doubt of the appellant’s guilt.

E. Details of Prior Sexual Assault
    The appellant asserts the military judge abused his discretion by exclud-
ing evidence under MIL. R. EVID. 412 regarding the complete factual circum-
stances of KM’s previous sexual assault. The military judge limited cross-
examination of KM, regarding the previous sexual assault, to the date, her
level of intoxication and that the prior assault involved nonconsensual vagi-
nal penetration. The military judge also ruled that:
         [A]dditional details about Ms. K.M.’s prior experiences as a vic-
         tim of sexual assault has [sic] scant probative value to this tri-
         al, are not material to the Defense’s case, and assuming ar-
         guendo such additional details had some small amount of pro-
         bative value, it would be substantially outweighed by the dan-
         ger of confusion of the issues and unfair prejudice. 29
    We review the military judge’s ruling to exclude evidence pursuant to
MIL. R. EVID. 412 for an abuse of discretion. United States v. Ellerbrock, 

, 317 (C.A.A.F. 2011). We review the findings of fact under a clearly
erroneous standard and the conclusions of law de novo. 

of
discretion standard “recognizes that a judge has a range of choices and will
not be reversed so long as the decision remains within that range.” United
States v. Freeman, 

, 453 (C.A.A.F. 2008) (citations and internal
quotation marks omitted). “In reviewing a military judge’s ruling for abuse of
discretion . . . we review the record material before the military judge” not
arguments submitted on appeal. United States v. Lloyd, 

, 100
(C.A.A.F. 2010).
  The military judge conducted a closed hearing under MIL. R. EVID. 412
where he heard testimony and the arguments of counsel. The appellant now



   29   AE LXI at 17.



                                        15
                       United States v. King, No. 201800016


argues that additional facts concerning the previous sexual assault and the
circumstances alleged in this case were critical to the defense theory of the
case at trial. Specifically, the appellant avers that the military judge should
have allowed cross-examination of KM on the fact that she was out with
friends, that her assailant followed her home to keep her safe, and that he
forced himself into KM’s house. However, the appellant never raised or artic-
ulated these specific details as important to the defense theory of the case.
    Under MIL. R. EVID. 412, evidence offered by an accused to show that the
alleged victim engaged in other sexual behavior is inadmissible, with three
limited exceptions, only the third of which is in contention here – when “the
exclusion of . . . [that evidence] would violate the constitutional rights of the
accused.” MIL. R. EVID. 412(b)(1)(C). This exception includes the appellant’s
Sixth Amendment 30 right to confront witnesses, including the right to cross-
examine those witnesses. 

.
    Evidence of past sexual behavior must also pass a balancing test as out-
lined in MIL. R. EVID. 412(c)(3) and clarified by United States v. Gaddis, 

, 250 (C.A.A.F. 2011). The test is whether the evidence is “relevant,
material, and [if] the probative value of the evidence outweighs the dangers
of unfair prejudice.” 

(citation omitted). Relevant
evidence is evidence that has “any tendency to make a fact more or less prob-
able than it would be without the evidence.” MIL. R. EVID. 401. Evidence is
material if it is “of consequence to the determination of appellant’s guilt.”
United States v. Dorsey, 

, 6 (C.M.A. 1983) (citations and internal
quotation marks omitted). The dangers of unfair prejudice “include concerns
about ‘harassment, prejudice, confusion of the issues, the witness’ safety, or
interrogation that is repetitive or only marginally relevant.’” 

(quoting Delaware v. Van Arsdall, 

, 679 (1986)). The
party intending to admit evidence under MIL. R. EVID. 412 has the burden of
proving the evidence is admissible under the rule. MIL. R. EVID. 412(c)(3);
United States v. Banker, 

, 223 (C.A.A.F. 2004).
    We find the military judge did not abuse his discretion by limiting the
cross-examination of KM. The civilian defense counsel wanted to elicit the
pertinent facts of KM’s previous sexual assault to support the theory that KM
was now confabulating those events and experiencing memory intrusion. The
military judge allowed cross-examination of KM on the facts surrounding her
prior sexual assault that were similar to the appellant’s case and supported
the defense theory proffered to the military judge. Specifically, the military



   30   U.S. CONST. amend. VI.



                                       16
                        United States v. King, No. 201800016


judge allowed cross-examination on the fact that the prior sexual assault
involved nonconsensual vaginal penetration and that KM was intoxicated.
The military judge also allowed the appellant to elicit when the prior assault
occurred. The excluded details the appellant now complains of are not similar
to the facts of the appellant’s case and they do not support the defense theory
at trial. The military judge issued a written ruling articulating his analysis
and concluded that any additional details had scant probative value, were not
material to the defense case, and even if they had some probative value, that
value would be substantially outweighed by the danger of confusion of the
issues and unfair prejudice. 31 See United States v. Manns, 

, 166
(C.A.A.F. 2000) (holding courts are highly deferential when a military judge
articulates his analysis on the record). The military judge’s findings of fact
are not clearly erroneous and his conclusions of law are correct in finding
that the additional details were not material to the defense’s case and there-
fore not constitutionally required. The military judge’s ruling does not fall
outside the range of reasonable choices available to him.

F. Error in the Staff Judge Advocate Recommendation
    We note error in the post-trial processing of the appellant’s case. Specifi-
cally, the staff judge advocate (SJA) failed to comment on the legal error
raised by the appellant in his R.C.M. 1105 matters.
   R.C.M. 1106(d)(4) directs that: “the staff judge advocate shall state
whether, in the staff judge advocate’s opinion, corrective action on the find-
ings or sentence should be taken when an allegation of legal error is raised in
matters submitted under R.C.M. 1105.” Prior to taking final action, the con-
vening authority must consider, inter alia, the R.C.M. 1105 matters submit-
ted by the accused and the recommendation of the staff judge advocate.
R.C.M. 1107(b)(3)(A).
    Here, the record does not include the required advice from the SJA as to
whether the alleged errors warranted “corrective action on the findings or
sentence.” R.C.M. 1106(d)(4). The addendum to the Staff Judge Advocate’s
Recommendation (SJAR) failed to address the trial defense counsel’s allega-
tion of legal error and state whether, in the SJA’s opinion, corrective action
should be taken. This constituted error.
    We next determine whether that error was prejudicial to the substantial
rights of the appellant. The threshold for establishing prejudice in post-trial
processing is low, but an appellant must make at least “some colorable show-



   31   AE LXI at 17.



                                        17
                    United States v. King, No. 201800016


ing of possible prejudice.” United States v. Scalo, 

, 436-37
(C.A.A.F. 2005) (quoting United States v. Kho, 

, 65 (C.A.A.F.
2000)).
    The convening authority should remedy legal error where possible. How-
ever, the convening authority is not required to review the record of trial for
error. United States v. Hamilton, 

, 35 (C.A.A.F. 1997). Failure to
address a claim of legal error in an addendum to an SJAR can be remedied
through appellate litigation of the claimed error. 

is ap-
propriate for this court to consider whether any prejudice may have resulted
from the failure to address the defense claims of legal error. United States v.
Welker, 

, 89 (C.A.A.F. 1996). If an appellate court finds that the
alleged error has no merit, then the failure to identify and address the al-
leged legal error in the addendum to the SJAR has not prejudiced the appel-
lant. 

; 

.
    Here, the addendum to the SJAR failed to address the appellant’s allega-
tions that the evidence was legally and factually insufficient to support his
conviction and that the sentence was too severe. We addressed the legal and
factual sufficiency issues in our opinion above and found no merit in either.
We also do not find any legal error in the severity of the adjudged sentence.
Because there was no error found in either issue raised in the appellant’s
R.C.M. 1105 submission, the appellant cannot make a showing of possible
prejudice.

G. Error in the Court-Martial Order
    Although not raised by the appellant, we note an error in the Court-
Martial Order (CMO). Specification 1 of Charge II uses the word “he” instead
of the correct word “her.” We review error in CMOs under a harmless error
standard. United States v. Crumpley, 

, 539 (N-M. Ct. Crim. App.
1998). The appellant has not asserted, and we do not find, that this scrive-
ner’s error materially prejudiced his substantial rights. However, the appel-
lant is entitled to accurate court-martial records, and we order corrective
action in the decretal paragraph. 

States v. King, No. 201800016


                              III. CONCLUSION

    Having carefully considered the record, briefs, and oral arguments of ap-
pellate counsel, we conclude the findings and sentence are correct in law and
fact and that no error materially prejudicial to the appellant’s substantial
rights occurred. Arts. 59 and 66, UCMJ. The supplemental CMO shall reflect
the correct text in Specification 1 of Charge II. Accordingly, the findings and
sentence as approved by the convening authority are AFFIRMED.
   Chief Judge CRISFIELD and Senior Judge FULTON concur.

                                FOR THE COURT:




                                RODGER A. DREW, JR.
                                Clerk of Court




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