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

                                 Before
               J.A. FISCHER, K.M. MCDONALD, D.C. KING
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                        BLAS M. ESCAMILLA
            PRIVATE FIRST CLASS (E-2), U.S. MARINE CORPS

                           NMCCA 201400168
                       GENERAL COURT-MARTIAL


Sentence Adjudged: 20 December 2013.
Military Judge: LtCol C.J. Thielemann, USMC.
Convening Authority: Commanding General, 1st Marine
Logistics Group, Camp Pendleton, CA.
Staff Judge Advocate's Recommendation: LtCol E.J. Peterson,
USMC.
For Appellant: Maj John Stephens, USMC.
For Appellee: Maj Tracey Holtshirley, USMC; Capt Cory
Carver, USMC..

                             23 April 2015

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

PER CURIAM:

     A general court-martial consisting of officer and enlisted
members convicted the appellant, contrary to pleas, of violating
a lawful general order by wrongfully distributing alcohol to
minors and committing a nonconsensual sexual act in violation of
Articles 92 and 120, Uniform Code of Military Justice, 10 U.S.C.
§§ 892 and 920. The members sentenced the appellant to a
reduction in pay grade to E-1, confinement for 235 days, 1 and a
bad-conduct discharge.

     The appellant raises two assignments of error: (1) the
evidence was legally and factually insufficient to affirm a
conviction for sexual assault and (2) the military judge erred
by instructing the members about punitive measures that could
have been taken against the appellant before the repeal of
“Don’t Ask, Don’t Tell.”

     After carefully considering the pleadings of the parties
and the record of trial, we conclude that the findings and the
sentence are correct in law and fact and that no error
materially prejudicial to the substantial rights of the
appellant was committed. 2 Arts. 59(a) and 66(c), UCMJ.

                            Background
     On 1 February 2013, the victim, Lance Corporal (LCpl) MH
agreed to accompany the appellant, an openly homosexual fellow
Marine, and other Marines to Oceanside to serve as a designated
driver. As the night wore on, the appellant and the victim,
along with three other Marines, ended up in a local hotel where
the Marines, including LCpl MH, continued to drink and
socialize. Eventually, the victim became “really drunk” 3 and
laid down on one of the beds. Moments later, the room emptied
of everyone but LCpl MH and the appellant, who began giving LCpl
MH a back massage. LCpl MH acquiesced and did not resist as the
appellant moved on to massaging LCpl MH’s chest, stomach and
legs. The appellant then tried to kiss LCpl MH, but was pushed
away. When the appellant asked if he could perform oral sex on
LCpl MH, LCpl MH replied “nah.” 4 Claiming that he believed that
LCpl MH was playing “hard to get,” 5 the appellant rolled LCpl MH
onto his back, lowered LCpl MH’s jeans, and placed LCpl MH’s
penis in his mouth for about a minute. 6

1
   This period of confinement was equal to time served by the appellant in
pretrial confinement.
2
    The appellant’s 10 November 2014 Motion for Oral Argument is denied.
3
    Record at 793.
4
    Id. at 1118.
5
    Id. at 1086.
6
    Id. at 847.


                                        2
     At trial, LCpl MH was unable to recall every detail of the
assault, but recalled that he “continue[d] to say no and tr[ied]
to push him away” 7 while the appellant was attempting to expose
LCpl MH’s penis. Once the appellant began the sexual act, LCpl
MH put a pillow over his own face “like when you want to scream” 8
and “hope[d] that it would just stop.” 9 LCpl MH testified that
at no time during the assault did he achieve an erection or
consent to the activity. A moment after commencing the sexual
act, the appellant heard the other Marines returning to the room
so he ceased his activity and jumped into the empty bed. LCpl
MH testified that he then took a shower and went back to sleep.

     The following morning, the appellant and LCpl MH, along
with one other Marine, returned to base, stopping for breakfast
along the way. Later, the appellant had a falling out with a
fellow-Marine, after which the latter contacted LCpl MH and
asked him if he had ever been sexually assaulted by the
appellant. LCpl MH responded in the affirmative but asked that
she not tell anyone. The Marine nonetheless reported LCpl MH’s
comments to the command, an investigation ensued, and the
appellant was eventually charged with a number of UCMJ
violations, including assaulting and sexually assaulting other
male Marines. 10 The specification relating to LCpl MH accused
the appellant of committing a sexual act upon LCpl MH by
“placing his mouth on [LCpl MH’s] penis, by causing bodily harm
to him, to wit: a nonconsensual touching of the said [LCpl MH’s]
penis.”

     Additional facts necessary for the resolution of the
assignments of error are included below.

                                   Discussion

     The appellant now claims that the evidence was legally and
factually insufficient to support a conviction for sexually
assaulting LCpl MH. Specifically, the appellant argues the
evidence is insufficient to prove beyond a reasonable doubt that
LCpl MH neither consented to the alleged assault nor that the
appellant honestly and reasonably believed that LCpl MH
consented.

7
     Id. at 797.
8
     Id. at 800.
9
     Id. at 801.
10
     The appellant was acquitted of all other charges.
                                         3
     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. Jackson v. Virginia, 443
U.S. 307, 318-19, (1979); United States v. Reed, 54 M.J. 37, 41
(C.A.A.F. 2000).

     The test for factual sufficiency is whether, after weighing
the evidence and making allowances for not having observed the
witnesses, we ourselves are convinced of the appellant's guilt
beyond a reasonable doubt. Reed, 54 M.J. at 41.

      Mistake of fact as to consent requires that the appellant
held an honest and reasonable belief that LCpl MH consented to
the sexual contact. RULE FOR COURTS-MARTIAL 916(j)(3), MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2012 ed.). Thus, there is both a
subjective and objective component. United States v. Goodman,
70 M.J. 396, 399 (C.A.A.F. 2011). Even if the appellant
honestly believed that LCpl MH consented, that belief must be
objectively reasonable or the defense fails. The Government
bears the burden of disproving mistake of fact beyond a
reasonable doubt. R.C.M. 916(b).

     At trial, the appellant testified that the sexual encounter
with LCpl MH was consensual. As a result, the military judge
properly instructed the members that evidence of consent “may
cause a reasonable doubt as to whether the accused cause[d]
bodily harm to the alleged victim.” 11 The military judge also
correctly instructed the members that “mistake of fact as to
consent is a defense” to the alleged assault against LCpl MH,
how to apply this potential defense, and that the Government had
the burden of proving beyond a reasonable doubt that “mistake of
fact as to consent did not exist.” 12

     The appellant now claims that “[i]t is simply unreasonable
for the finder-of-fact to see the sexual encounter between [the
appellant] and LCpl MH as anything other than an awkward, but
consensual, homosexual encounter.” 13 We disagree and begin by
citing the black letter law: “The term ‘consent’ means a freely
given agreement to the conduct at issue by a competent person.
An expression of lack of consent through words or conduct means
there is no consent.” MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012

11
     Id. at 1164.
12
     Id. at 1166.
13
     Appellant’s Brief of 22 Sep 2014 at 13.
                                         4
ed.), Part IV, ¶ 45a(g)(8)(A). There was ample evidence to
establish that LCpl MH did not consent to the appellant’s
activity, including the appellant’s own admission that LCpl MH
said “nah” when the appellant asked if he could perform fellatio
on LCpl MH.

     We recognize that the testimony of LCpl MH and the
appellant as to what happened that evening conflicted. While
LCpl MH testified that he did not consent to the sexual
activity, the appellant claims that LCpl MH requested the
massage, “had a smile on his face” during the massage 14; that
LCpl MH “picked up his hips” to assist the appellant with taking
LCpl MH’s jeans down 15; and that LCpl MH then “put his left leg
onto the floor” in preparation for receiving oral sex. 16 We also
note the appellant’s contention that, the morning following the
assault, LCpl MH chose to ride in the front of the car with the
appellant, had breakfast with the appellant, and declined to
report the assault until his hand was forced by a fellow Marine
with an apparent axe to grind. However, we are not persuaded
that these events or testimony have the impact the appellant
desires.

     The Government’s case stands upon the credibility of LCpl
MH as opposed to that of the appellant. “[R]easonable doubt
. . . does not mean the evidence must be free of conflict.”
United States v. Goode, 54 M.J. 836, 841 (N.M.Ct.Crim.App. 2001)
(citation and internal quotation marks omitted). In fact,
members are free to believe one witness and disbelieve another.
United States v. Lepresti, 52 M.J. 644, 648 (N.M.Ct.Crim.App.
1999). The record reveals that the victim's testimony at trial
was substantially consistent, appropriately detailed, and
withstood quite vigorous cross-examination. This fact, coupled
with a recognition that the court members had the advantage of
being able to personally see and hear the witnesses, leaves us
convinced of the appellant’s guilt beyond a reasonable doubt. 17




14
     Record at 1087.
15
     Id. at 1091.
16
     Id. at 1092.
17
  Considering the evidence adduced at trial in the light most favorable to
the Government, we also find that a rational trier of fact could have found
the elements of the offense beyond a reasonable doubt.
                                      5
                          Conclusion

     The appellant's remaining assignment of error is without
merit. United States v. Clifton, 35 M.J. 79 (C.M.A. 1992). The
findings and approved sentence are affirmed.

                               For the Court



                               R.H. TROIDL
                               Clerk of Court




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