             U NITED S TATES AIR F ORCE
            C OURT OF C RIMINAL APPEALS
                       ________________________

                        No. ACM 38771 (f rev)
                       ________________________

                         UNITED STATES
                             Appellee
                                     v.
                        Cory D. PHILLIPS
            Senior Airman (E-4), U.S. Air Force, Appellant
                       ________________________

              Upon further review and on remand from
       the United States Court of Appeals for the Armed Forces
                        Decided 8 March 2019
                       ________________________

Military Judge: Shelly W. Schools.
Approved sentence: Bad-conduct discharge, confinement for 1 year, and
reduction to E-1. Sentence adjudged 6 November 2014 by GCM con-
vened at Peterson Air Force Base, Colorado.
For Appellant: Major Annie W. Morgan, USAF.
For Appellee: Lieutenant Colonel Joseph Kubler, USAF; Lieutenant
Colonel G. Matt Osborn, USAF; Lieutenant Colonel Roberto Ramirez,
USAF; Major Jeremy D. Gehman, USAF; Major Amanda L.K. Linares,
USAF; Major J. Ronald Steelman, III, USAF; Captain Sean J. Sulli-
van, USAF; Gerald R. Bruce, Esquire; Mary Ellen Payne, Esquire.
Before MAYBERRY, HUYGEN, and POSCH, Appellate Military Judg-
es.
Chief Judge MAYBERRY delivered the opinion of the court, in which
Senior Judge HUYGEN and Judge POSCH joined.
                       ________________________

   This is an unpublished opinion and, as such, does not serve as
   precedent under AFCCA Rule of Practice and Procedure 18.4.
                      ________________________
                United States v. Phillips, No. ACM 38771 (f rev)


    MAYBERRY, Chief Judge:

                                 I. BACKGROUND
    Appellant’s case is before us for the third time. Contrary to his pleas, Ap-
pellant was convicted by a military judge sitting alone of aggravated sexual
assault against Senior Airman (SrA) LS and abusive sexual contact against
Airman First Class (A1C) KW, in violation of Article 120, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 920.1 Appellant was sentenced to a bad-
conduct discharge, confinement for one year, and reduction to the grade of E-
1. The convening authority approved the sentence as adjudged.
    The offenses arose from Appellant’s relationships with SrA LS and A1C
KW at Peterson Air Force Base, Colorado. Appellant and the two Airmen
were assigned to the same squadron and Appellant had regular on-duty con-
tact with both. Appellant had a short-lived romantic relationship with SrA
LS, including consensual sexual activity that ceased approximately one week
before the incident that gave rise to his conviction of aggravated sexual as-
sault. The underlying facts of each incident included sexual activity after the
consumption of alcohol by Appellant and each victim.
    In Appellant’s initial appeal to this court, Appellant asserted that his
convictions for both specifications were legally and factually insufficient and
then later filed a supplemental assignment of error alleging that the military
judge erred when she considered charged offenses as propensity evidence in
light of United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016).2 This court found
the convictions legally and factually sufficient, found the military judge erred
in considering the charged offenses for propensity, and, applying Article
59(a), UCMJ, 10 U.S.C. § 859(a), held the error was nonconstitutional in na-
ture and harmless and thus did not materially prejudice Appellant’s substan-
tial rights. See United States v. Phillips (Phillips I), No. ACM 38771, 2016
CCA LEXIS 532 (A.F. Ct. Crim. App. 7 Sep. 2016) (unpub. op.). Recognizing
the potential applicability of Hills, the court also analyzed the error as consti-


1 Because the aggravated sexual assault occurred in early June 2012, the conviction
was based on the version of Article 120, UCMJ, in effect for offenses occurring be-
tween 1 October 2007 and 28 June 2012. 10 U.S.C. § 920(c) (2006), as amended by,
the National Defense Authorization Act for Fiscal Year 2006, Pub. L. No. 109–163, §
552, 119 Stat. 3136, 3257 (2006). Appellant was acquitted of an additional specifica-
tion of abusive sexual contact involving SrA LS.
2Additionally, we specified two issues regarding post-trial processing, both of which
became moot as a result of later proceedings.




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                  United States v. Phillips, No. ACM 38771 (f rev)


tutional in nature and under the standard of harmless beyond a reasonable
doubt. Id. at *19–20. In light of the testimony of the two victims under oath,
Appellant’s pretrial admissions, other witness testimony that corroborated
the victims’ testimony and directly contradicted the version of events in Ap-
pellant’s trial testimony, and the overall strength of the Government’s case,
the court found that the military judge’s error was harmless beyond a rea-
sonable doubt. See id. Finding no error materially prejudiced a substantial
right of Appellant, we affirmed the findings and sentence. Id. at *2.
   The United States Court of Appeals for the Armed Forces (CAAF) granted
review3 and, on further consideration, set aside our prior decision and re-
manded the case to us for a new review under Article 66, UCMJ, 10 U.S.C. §
866, in light of United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017). See Unit-
ed States v. Phillips (Phillips II), 76 M.J. 441 (C.A.A.F. 2017) (mem.).
    In Appellant’s initial appeal, this court also sua sponte assessed the fail-
ure of the addendum to the staff judge advocate’s recommendation to correct
an erroneous statement in the defense clemency submission in light of United
States v. Addison, 75 M.J. 405 (C.A.A.F. 2016) (mem.), finding the errors did
not warrant additional post-trial processing. On 6 February 2018, we set
aside the action of the convening authority and returned the record of trial to
The Judge Advocate General for remand to the convening authority for new
post-trial processing and conflict-free defense counsel in light of United States
v. Addison, 75 M.J. 405 (C.A.A.F. 2016) (mem.). United States v. Phillips


3   The CAAF granted review of the following issues:
          I. WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY
          GRANTING THE GOVERNMENT MOTION TO USE EVIDENCE OF
          CHARGED SEXUAL MISCONDUCT UNDER MIL. R. EVID. 413 TO
          SHOW PROPENSITY TO COMMIT OTHER CHARGED SEXUAL MIS-
          CONDUCT. See UNITED STATES v. HILLS, 75 M.J. 350 (C.A.A.F. 2016).
          II. WHETHER THE LOWER COURT ERRED WHEN IT FAILED TO RE-
          MAND APPELLANT'S CASE FOR NEW POST-TRIAL PROCESSING AF-
          TER THE STAFF JUDGE ADVOCATE'S RECOMMENDATION (SJAR)
          FAILED TO CORRECT AN ERROR IN APPELLANT'S CLEMENCY SUB-
          MISSION. See UNITED STATES v. ADDISON, [75 M.J. 405 (C.A.A.F. 2016)]
          (rem.).
          III. WHETHER APPELLANT'S CONVICTION ON SPECIFICATION 1 OF
          THE CHARGE IS LEGALLY INSUFFICIENT WHERE THE GOVERN-
          MENT FAILED TO PROVE THAT APPELLANT AND SrA LS ENGAGED
          IN A SEXUAL ACT.
United States v. Phillips, 76 M.J. 57 (C.A.A.F. 2017).




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                United States v. Phillips, No. ACM 38771 (f rev)


(Phillips III), No. ACM 38771 (rem), 2018 CCA LEXIS 614 (A.F. Ct. Crim.
App. 6 Feb. 2018) (unpub. op.). On 28 August 2018, the convening authority
took action, again approving the adjudged sentence. On 7 September 2018,
the case was again docketed with this court. Appellant submitted an addi-
tional—whether the unreasonable post-trial processing violated Appellant’s
due process rights—and requested we set aside the convictions. Having now
reviewed Appellant’s case for legal and factual sufficiency and in light of
Hukill, we find no prejudicial error and affirm.4

                                  II. DISCUSSION
A. Legal and Factual Sufficiency
    Appellant argues the evidence produced at trial was factually and legally
insufficient to support his conviction for aggravated sexual assault of SrA LS.
Appellant specifically focuses on the Prosecution’s failure to prove beyond a
reasonable doubt that Appellant engaged in sexual intercourse with SrA LS
as alleged. In so arguing, Appellant points to SrA LS’s inability to recall any
factors leading her to believe Appellant engaged in sexual intercourse with
her on the evening in question.
    Appellant also challenges the legal and factual sufficiency of his convic-
tion for abusive sexual contact of A1C KW. Appellant primarily argues the
evidence produced at trial fails to establish A1C KW was incapable of con-
senting to Appellant’s actions because of her impairment from consuming al-
cohol on the evening in question. In support of this argument, Appellant
points to the testimony of A1C KW that she believed she was not sufficiently
impaired from alcohol when she awoke to Appellant touching her chest and
vaginal area.
    1. Law
    We review issues of legal and factual sufficiency de novo. Article 66,
UCMJ, 10 U.S.C. § 866; United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002) (citation omitted). Our assessment of legal and factual suffi-
ciency is limited to the evidence produced at trial. United States v. Dykes, 38
M.J. 270, 272 (C.M.A. 1993) (citations omitted).
   The test for legal sufficiency of the evidence is “whether, considering the
evidence in the light most favorable to the prosecution, a reasonable factfind-


4 In light of the new post-trial processing, we need not address the post-trial pro-
cessing discrepancies that were discussed in Phillips I. See Phillips I, unpub. op. at
*20–24.




                                          4
               United States v. Phillips, No. ACM 38771 (f rev)


er could have found all the essential elements beyond a reasonable doubt.”
United States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987) (citing Jackson v.
Virginia, 443 U.S. 307, 319 (1979)); see also United States v. Humpherys, 57
M.J. 83, 94 (C.A.A.F. 2002) (quoting Turner, 25 M.J. at 324). “[I]n resolving
questions of legal sufficiency, we are bound to draw every reasonable infer-
ence from the evidence of record in favor of the prosecution.” United States v.
Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citations omitted).
    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, [we are] convinced of the [appellant]’s guilt beyond a reasona-
ble doubt.” Turner, 25 M.J. at 325; see also United States v. Reed, 54 M.J. 37,
41 (C.A.A.F. 2000) (quoting Turner, 25 M.J. at 325). “In conducting this
unique appellate role, we take ‘a fresh, impartial look at the evidence,’ apply-
ing ‘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.’” United States v.
Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (alteration in original)
(quoting Washington, 57 M.J. at 399), aff’d, 77 M.J. 289 (C.A.A.F. 2018). “The
term reasonable doubt, however, does not mean that the evidence must be
free from conflict.” Id. (citing United States v. Lips, 22 M.J. 679, 684
(A.F.C.M.R. 1986)). Although we “cannot find as fact any allegations of which
the [appellant] was found not guilty at trial,” we “may consider facts underly-
ing an acquitted charge in considering whether the facts support a separate
charge.” United States v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017).
   To sustain a conviction for aggravated sexual assault, the Prosecution
was required to prove: (1) that Appellant engaged in a sexual act with SrA LS
by penetrating her vulva with his penis and (2) that he did so when SrA LS
was substantially incapable of communicating her unwillingness to engage in
the sexual act. See Manual for Courts-Martial, United States (2012 ed.)
(MCM), App. 28, at A28–6, ¶ 45.b.(3)(c).
    To sustain a conviction for abusive sexual contact, the Prosecution was
required to prove: (1) that Appellant committed sexual contact upon A1C KW
by touching through her clothing her genitalia and breast and directly touch-
ing her breast; (2) that he did so when A1C KW was incapable of consenting
to the sexual contact due to impairment by alcohol and that condition was
known or reasonably should have been known by him; and (3) that he did so




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               United States v. Phillips, No. ACM 38771 (f rev)


with the intent to arouse or gratify his sexual desire. See 2016 MCM, pt. IV, ¶
45.b.(7)(f).5
    2. Facts Regarding Aggravated Sexual Assault of SrA LS
    Appellant and SrA LS had previously been involved in a romantic rela-
tionship, but SrA LS decided about one week before the charged incident that
they should forgo the romantic aspects of their relationship and just remain
friends. SrA LS testified that in June 2012 she had been out drinking with
some friends and, although intoxicated, was in possession of her mental fac-
ulties when she returned to a friend’s on-base house where Appellant had
been socializing. After continuing to drink at this friend’s house, SrA LS re-
turned to her dormitory room with Appellant. SrA LS remembered eating
some food before lying down on her bed to go to sleep. Appellant was sitting
in a chair at this time. SrA LS awoke to find Appellant trying to put her un-
derwear back on her by attempting to guide both of SrA LS’s legs through one
hole of the underwear. SrA LS pushed Appellant off of her, which resulted in
his immediate departure from her room. SrA LS got out of bed to make sure
her door was shut behind Appellant and then fell back asleep.
     The next day, Appellant texted SrA LS to talk about what happened the
previous evening. Later that day, the two met in SrA LS’s room. SrA LS had
no memory of engaging in any sexual activity with Appellant but still felt she
had somehow been sexually violated by him. SrA LS also had no physical
symptoms such as vaginal discomfort or discharge to confirm her suspicions
that Appellant had engaged in sexual activity with her. Although Appellant
did not admit to engaging in any sexual activity, he became very emotional
and provided a general apology for his conduct. At trial, another Airman tes-
tified that he had spoken with both SrA LS and Appellant about an incident.
Appellant told him SrA LS passed out and woke up when Appellant was put-
ting her clothes back on her. SrA LS did not report the sexual assault. A mu-
tual friend of both SrA LS and Appellant reported the incident involving Ap-
pellant and SrA LS to the Air Force Office of Special Investigations (AFOSI).
    During the course of the AFOSI investigation, SrA LS agreed to call Ap-
pellant and allow an AFOSI agent to listen. During the course of that phone


5 At the time of Appellant’s contact offense in 2013, the President had not yet ad-
dressed the elements of sexual offenses under Article 120, UCMJ, in part IV of the
Manual for Courts-Martial. Although the President did not articulate the elements
until the 2016 MCM, those elements are applicable to Appellant’s offense of abusive
sexual contact under Article 120(d), UCMJ. See United States v. Armstrong, 77 M.J.
465, 467 n.1 (C.A.A.F. 2018).




                                        6
               United States v. Phillips, No. ACM 38771 (f rev)


call, Appellant claimed they were going to have sex that night before SrA LS
passed out, but they did not. He also stated that he took off her pants and
kissed her while she was passed out. Approximately one week after that pre-
text phone call, SrA LS agreed to have a conversation with Appellant while
wearing a recording device. The recording was offered into evidence with no
objection from the Defense. During the recorded conversation, Appellant ini-
tially informed SrA LS that he was unsure whether they had sexual inter-
course. Later, in response to SrA LS’s direct question of whether they in fact
had sex, Appellant responded with “I think so. Yeah.” Appellant also stated
that they “started to hook up” and, at some point during their physical inter-
action, he noticed that SrA LS was unresponsive or asleep. Appellant then
attempted to put SrA LS’s clothes back on her and immediately left the room.
Appellant also informed SrA LS that he would not have stripped her naked
and had sexual intercourse with her had she not been responsive initially.
    At trial, Appellant took the stand in his defense and provided a somewhat
different, and more detailed, version of the events with SrA LS that evening.
Appellant testified that, after returning to SrA LS’s dorm room, they eventu-
ally climbed into her bed and started kissing and touching each other. At
some point, SrA LS’s underwear was removed. Appellant then left the room
to retrieve a condom from his room on the same dormitory floor. When he re-
turned, Appellant found SrA LS asleep. As he felt it was not appropriate to
leave SrA LS wearing no underwear, Appellant attempted to put her under-
wear back on her. Afterwards, Appellant left the room and went to sleep.
    Appellant further testified that he reached out to SrA LS the next morn-
ing “asking [her] what happened, kind of referring to . . . [she] fell asleep” and
asked if they could talk about it “because I knew it was probably bugging her
that -- what -- what happened.” Appellant corroborated SrA LS’s testimony
that he cried during their conversation the following day “because I felt that
our friendship was over at that point . . . because of how she was yelling at
me and how she responded.”
    On cross-examination, Appellant acknowledged the word “sex” as it was
used in his recorded conversation with SrA LS meant sexual intercourse. Ap-
pellant was unable to explain how he was able to put SrA LS’s underwear
back on her given her unresponsive state and prone position in her bed. Ap-
pellant also had difficulty explaining why he lied to SrA LS about engaging in
sexual intercourse.
   3. Analysis of Aggravated Sexual Assault of SrA LS
   Appellant’s denial at trial of engaging in sexual intercourse with SrA LS
was far less credible than his admissions during the recorded conversation.
Appellant, at his trial by court-martial, now possessed the obvious motivation


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               United States v. Phillips, No. ACM 38771 (f rev)


to avoid a criminal conviction and the corresponding punishment. As a result,
his now crystal clear memory of his actions on the evening in question was
suspect. Appellant also had trouble during cross-examination explaining why
he lied to SrA LS during the recorded conversation about engaging in sexual
intercourse when the truth as he relayed it at trial could have put her mind
at ease by assuring her she was not sexually violated that evening.
    Appellant’s testimony was also rebutted by other evidence admitted at
trial. For example, Appellant suggested at trial that SrA LS never awoke
while he was trying to put her underwear back on her. This suggestion, how-
ever, was rebutted by not only SrA LS’s testimony but also by the pretrial
admission Appellant made to the same friend who reported the incident to
AFOSI. Appellant’s trial testimony was also suspect regarding his inability to
explain how he was able to put SrA LS’s underwear back on her.
    Based on Appellant’s more credible admissions during the recorded con-
versation with SrA LS, there was sufficient evidence, when viewed in the
light most favorable to the prosecution, for the military judge to find that Ap-
pellant penetrated SrA LS’s vulva with his penis and that he did so when SrA
LS was substantially incapable of communicating her unwillingness to en-
gage in the sexual act. Furthermore, after making allowances for not person-
ally observing the witnesses, we conclude beyond a reasonable doubt, based
upon our independent review of the record, that Appellant is guilty of the
charged offense.
   4. Facts Regarding Abusive Sexual Contact of A1C KW
    In November 2013, both Appellant and A1C KW were invited to have
drinks with friends from work. Appellant arrived at the off-base bar shortly
after A1C KW. Although Appellant and A1C KW worked together, they had
only seen each other socially one other time when they both attended a movie
with a group of mutual friends from their squadron. At some point after ar-
riving at the bar, Appellant informed a co-worker he wanted to get to know
A1C KW better. After consuming three drinks at the first bar, A1C KW and
her group of friends, including Appellant, went to two other bars where they
drank and danced. A1C KW became progressively more intoxicated as the
evening continued, eventually requiring assistance to maintain her balance.
A1C KW was also unable to keep her eyes open and her speech was impaired.
At some point during the evening, Appellant had to hold A1C KW to keep her
from falling down due to her level of intoxication.
   As Appellant had moved from the on-base dormitories to an off-base
apartment, prior to the bar closing A1C KW and another co-worker, SrA JY,
decided they would sleep at Appellant’s apartment instead of trying to get
back to their dormitory on base. SrA JY wanted something to eat, so they


                                       8
               United States v. Phillips, No. ACM 38771 (f rev)


went to a fast-food restaurant. A1C KW was described by SrA JY as “very
drunk” at this time and required physical assistance from both Appellant and
SrA JY as they walked to the restaurant. A1C KW did not eat anything but
did consume some water at the restaurant. Appellant, A1C KW, and SrA JY
then took a taxi cab to Appellant’s apartment, arriving around 0230 hours.
A1C KW did not remember the walk from the cab to Appellant’s third floor
apartment. SrA JY testified A1C KW was “non-responsive” shortly after ar-
riving at Appellant’s apartment, meaning A1C KW was “blacked out” or “un-
conscious.” Appellant and SrA JY carried A1C KW to Appellant’s bedroom
and placed her in his bed. Appellant and SrA JY planned to sleep in Appel-
lant’s living room. During the course of the evening, however, Appellant at
least twice entered his bedroom to “check on” A1C KW.
    Approximately 90 minutes after arriving at the apartment, A1C KW woke
up to Appellant touching her breast and vaginal area over her clothes as well
as directly touching her breast with his hand. Appellant eventually rolled
A1C KW on top of him. A1C KW then kissed Appellant thinking he was her
fiancé. Once she realized it was Appellant who was in bed with her, A1C KW
rolled away from Appellant. Appellant tried to get A1C KW to acknowledge
him but eventually left the room after she ignored him for a period of time.
    A few days later, Appellant engaged in text communications with A1C
KW in which he admitted that while he never “went under [A1C KW’s]
pants,” he may have touched her bra that evening. Appellant also admitted to
a co-worker that he kissed A1C KW and touched her breast.
    Appellant testified at trial and denied initiating any physical contact with
A1C KW. He stated A1C KW initiated the entire encounter by climbing on
top of him and kissing him. Moreover, because A1C KW “grossed [him] out,”
Appellant testified he left the room to get away from her advances. Addition-
ally, Appellant testified that he did not believe A1C KW was drunk at any
point during the evening as she was able to walk and stand on her own.
   5. Analysis of Abusive Sexual Contact of A1C KW
   We find the evidence sufficient to prove Appellant committed abusive
sexual contact. A1C KW’s testimony alone was more than enough to support
the sexual contact element. In this case, however, her testimony was corrobo-
rated by Appellant during the pretext conversation in which he admitted
that, while he never “went under [A1C KW’s] pants,” he may have touched
her bra that evening. Appellant also admitted to a co-worker that he kissed
A1C KW and touched her breast.
    Furthermore, contrary to Appellant’s claims, the evidence produced at
trial is sufficient to establish A1C KW did not have the mental capacity to
consent to sexual activity because of her impairment by alcohol. See generally


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               United States v. Phillips, No. ACM 38771 (f rev)


United States v. Pease, 75 M.J. 180, 184–85 (C.A.A.F. 2016) (discussing our
sister service court’s definition of the term “incapable of consenting”). Multi-
ple witnesses testified A1C KW became significantly intoxicated as the even-
ing progressed. In fact, approximately 90 minutes before the incident, A1C
KW was completely non-responsive, requiring Appellant and SrA JY to carry
her to Appellant’s bed.
    Appellant’s focus on A1C KW’s personal assessment of the impact of alco-
hol on her mental capacity ignores her testimony that she was confused after
arriving at Appellant’s apartment and was clearly not aware of Appellant’s
presence in bed until he began touching her. Appellant’s argument also fails
to consider SrA JY’s testimony that one of the times when Appellant checked
on A1C KW he found her sitting up in bed in a “dazed” and “disoriented”
state, unable to initially answer questions posed by him. While A1C KW did
not link her disorientation to her consumption of alcohol, it was entirely rea-
sonable for the factfinder to draw this conclusion given her need for assis-
tance 90 minutes before Appellant’s assault.
    Appellant’s testimony is far from credible when compared against the en-
tirety of the evidence admitted at trial. His self-serving statements about
A1C KW’s aggression towards him did not match his description of his physi-
cal contact with her as documented in the pretext conversation. Likewise, his
testimony that he had no interest in A1C KW’s sexual advances stood in
stark conflict with his statement earlier in the evening that he wanted to get
to know A1C KW better.
    Additionally, Appellant’s hedged statement about A1C KW’s level of in-
toxication was directly rebutted by three witnesses––all friends of Appellant–
–who noted A1C KW became very intoxicated as the evening progressed.
More damaging, however, was Appellant’s admission during the pretext con-
versation that the group eventually stopped A1C KW from drinking as she
had clearly had enough alcohol for the evening. In light of the entirety of the
evidence, it was not unreasonable for the finder of fact to determine Appel-
lant’s self-serving testimony in his defense was not credible.
    Based on A1C KW’s testimony, the strong evidence regarding her level of
intoxication, and the various admissions from Appellant, we find the evidence
was sufficient, when viewed in the light most favorable to the prosecution, for
a reasonable finder of fact to conclude that Appellant engaged in sexual con-
tact with A1C KW when she was incapable of consenting to the sexual acts
due to her alcohol impairment, that her condition was known or reasonably
should have been known by Appellant, and that he engaged in the contact
with the intent to arouse or gratify his sexual desire. Moreover, making al-
lowances for not personally observing the witnesses, we also conclude beyond



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               United States v. Phillips, No. ACM 38771 (f rev)


a reasonable doubt, based upon our independent review of the record, that
Appellant is guilty of the charged offense of abusive sexual contact.
B. Propensity
   Having found the evidence legally and factually sufficient, we now consid-
er whether the military judge’s erroneous use of propensity evidence was
harmless beyond a reasonable doubt in light of Hukill.
   1. Law
    Military Rule of Evidence 413(a) provides that in a court-martial where
the accused is charged with a sexual offense, evidence that the accused com-
mitted other sexual offenses may be admitted and considered on “any matter
to which it is relevant.” This includes using evidence of one sexual assault to
prove the accused had a propensity to commit another sexual assault. See
United States v. Wright, 53 M.J. 476, 480 (C.A.A.F. 2000) (citation omitted).
   In United States v. Hills, 75 M.J. 350, 354 (C.A.A.F. 2016), the CAAF held
that evidence of the accused’s commission of one sexual assault may not be
used to prove propensity to commit another sexual assault if the one sexual
assault is charged in the same court-martial as the other and the accused has
pleaded not guilty to it.
    In United States v. Hukill, the CAAF clarified that Hills is not to be in-
terpreted narrowly:
       [T]he use of evidence of charged conduct as [Mil. R. Evid.] 413
       propensity evidence for other charged conduct in the same case
       is error, regardless of the forum, the number of victims, or
       whether the events are connected. Whether considered by
       members or a military judge, evidence of a charged and con-
       tested offense, of which an accused is presumed innocent, can-
       not be used as propensity evidence in support of a companion
       charged offense.
76 M.J. 219, 222 (C.A.A.F. 2017). The court reiterated that, where such con-
stitutional error exists, the Government must “prove there was no reasonable
possibility that the error contributed to [the] verdict.” Id. (citations omitted).
    In United States v. Guardado, the CAAF acknowledged that, even with an
error in considering other charged offenses for propensity purposes, “[t]here
are circumstances where the evidence is overwhelming, so we can rest as-
sured that an erroneous propensity instruction did not contribute to the ver-
dict.” 77 M.J. 90, 94 (C.A.A.F. 2017) (citation omitted). In Guardado, the evi-
dence consisted solely of the testimony of his accusers. Id. The CAAF did not
disturb the service court’s finding that the victim’s testimony was credible yet



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               United States v. Phillips, No. ACM 38771 (f rev)


found “the lack of supporting evidence ma[de] it difficult to be certain that
[Guardado] was convicted . . . on the strength of the evidence alone.” Id.
    In contrast, our superior court has found no prejudice for a Hills error and
summarily affirmed convictions where evidence included independent eye-
witness testimony and incriminating admissions by an appellant. See United
States v. Hazelbower, 78 M.J. 12 (C.A.A.F. 2018) (mem.) (military judge’s er-
roneous use of charged misconduct for propensity purposes was harmless be-
yond a reasonable doubt where “victims’ accounts were corroborated by a
wealth of independent supporting evidence,” including admissions and in-
criminating texts); United States v. Williams, 77 M.J. 459, 464 (C.A.A.F.
2018) (one conviction survived the improper use of propensity evidence be-
cause it was supported by independent evidence corroborating the circum-
stances surrounding the sexual offense, although there was no direct corrobo-
ration of the sexual act itself); United States v. Moore, 77 M.J. 198 (C.A.A.F.
2018) (mem.) (evidence of the appellant’s guilt was overwhelming given the
strength of the Government’s case, which included compelling victim and
eyewitness testimony); United States v. Luna, 77 M.J. 198 (C.A.A.F. 2018)
(mem.) (military judge’s erroneous propensity instruction was harmless be-
yond a reasonable doubt where the victim’s testimony was corroborated by
witness testimony and incriminating text messages written by the appellant).
   2. Facts
   In this case, there was no mention of Mil. R. Evid. 413 until after the
presentation of evidence by both sides. In an off-the-record Rule for Courts-
Martial (R.C.M.) 802 session, the military judge discussed instructions. The
military judge summarized that discussion as follows:
       We had an 802 this morning to discuss instructions in this
       case. And although this is not a member’s case, I wanted to go
       through with counsel the instructions they thought would be
       applicable if I were instructing members, so that I might con-
       sider them during my deliberations. We specifically discussed
       whether there were any defenses raised by the evidence, and
       defense requested that I consider the defenses of consent and
       mistake of fact as to consent, which I intend to do. . . . The gov-
       ernment asked me to consider 413, which I will do . . . .
    Neither party added to or corrected the summary of the R.C.M. 802 ses-
sion or made any additional statements regarding instructions.
   3. Analysis
   In Appellant’s case, the military judge’s use of propensity evidence under
Mil. R. Evid. 413 created a constitutional error, but the error was harmless
beyond a reasonable doubt. The Government’s case was strong, independent

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                United States v. Phillips, No. ACM 38771 (f rev)


of any inference of propensity. While it is true the Government referred to
propensity in its closing argument, it did not rely on propensity in the presen-
tation of its case.
    Appellant was convicted of sexual offenses where the victim’s testimony
was aided by other witnesses’ testimony, Appellant’s admissions before trial,
his conflicting testimony at trial, or some combination of the three.6 It is true
that the evidence involving A1C KW is stronger than that involving SrA LS
based only on their recollections of what happened with Appellant. However,
the Government’s case as to both allegations was strong, did not rely solely
on the victims’ testimony, and included evidence provided by other witnesses
and Appellant.
    This is not a case of an alleged victim’s testimony, standing alone, bol-
stered by improper consideration of Mil. R. Evid. 413 propensity evidence.
Instead, the record in this case contains extensive, credible, corroborating ev-
idence of the events involving both SrA LS and A1C KW. Further, Appellant's
own admissions to both SrA LS and A1C KW, his statements to third parties
concerning specific factual aspects of the separate incidents, and the personal
observations and testimony of other witnesses make Appellant’s in-court de-
nials suspect. Most significantly, Appellant’s trial testimony that he lied
when he admitted to SrA LS that they had sexual intercourse on the night in
question is not credible, as he only chose to reveal that explanation when it
served a much more personal objective of avoiding a conviction.
    Considering the overwhelming strength of the Government’s case, much
like in Hazelbower and Williams, and the weak defense case, we find the mil-
itary judge’s error of considering propensity evidence under Mil. R. Evid. 413
did not contribute to the verdict. We are convinced the use of charged conduct
as propensity evidence for other charged conduct by the military judge was
harmless beyond a reasonable doubt.
C. Post-Trial Delay
   Appellant asserts that the unreasonable post-trial delay from the date the
case was first docketed with this court in March 2015 until the date of this
opinion warrants relief. Appellant’s alleged prejudice is premised on a favor-



6 The military judge found Appellant not guilty of the abusive sexual contact offense
involving SrA LS, the only offense that Appellant consistently denied. We are mind-
ful of the language in Guardado that any harm that resulted from allowing propensi-
ty evidence from one specification is not necessarily extinguished by an acquittal of
that same specification. 77 M.J. at 94.




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               United States v. Phillips, No. ACM 38771 (f rev)


able decision based on the application of Hukill, and his requested remedy is
that his convictions be set aside.
    1. Law
    We review de novo whether an appellant has been denied the right to due
process and a speedy post-trial review and appeal. United States v. Moreno,
63 M.J. 129, 135 (C.A.A.F. 2006) (citations omitted). A presumption of unrea-
sonable delay arises when appellate review is not completed and a decision is
not rendered within 18 months of the case being docketed before the court.
Id. at 142. The Moreno standards continue to apply as a case remains in the
appellate process. United States v. Mackie, 72 M.J. 135, 135–36 (C.A.A.F.
2013) (per curiam). The Moreno standard is not violated when each period of
time used for the resolution of legal issues between this court and our superi-
or court is within the 18-month standard. Id. at 136 (citing United States v.
Roach, 69 M.J. 17, 22 (C.A.A.F. 2010)). When an appellate decision is not
completed within 18 months, such a delay is presumptively unreasonable and
triggers an analysis of the four factors laid out in Barker v. Wingo, 407 U.S.
514, 530 (1972): “(1) the length of the delay; (2) the reasons for the delay; (3)
the appellant’s assertion of the right to timely review and appeal; and (4)
prejudice.” Moreno, 63 M.J. at 135 (citations omitted).
    2. Facts
   We issued Phillips I on 7 September 2016, within 18 months from when
Appellant’s case was originally docketed with the court. On 24 October 2016,
Appellant filed a petition for review at the CAAF and did not raise post-trial
delay. On 3 January 2017, the CAAF granted the petition. On 7 February
2017, Appellant filed his final brief at the CAAF, again raising no post-trial
delay issue. On 27 July 2017, the CAAF set aside our decision (Phillips II)
and remanded the case for a new Article 66, UCMJ, review. The case was re-
docketed with this court on 31 July 2017.
    Appellant filed his remand brief on 15 September 2017, requesting “expe-
dited consideration of his case,” but did not raise a post-trial delay issue. On
21 December 2017, Appellant filed a Motion to Cite Supplemental Authorities
and asserted his right to timely appellate review. Appellant argued that
1,018 days had passed between the filing of the motion and the date his case
was originally docketed with this court.7 On 6 February 2018, we issued Phil-
lips III setting aside the action of the convening authority and remanding the


7Only 143 days had passed since the case was re-docketed with the court after re-
mand by the CAAF.




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               United States v. Phillips, No. ACM 38771 (f rev)


case to remedy an error in post-trial processing. We issued our decision 190
days after docketing.
   On 7 February 2018, Appellant filed another petition for grant of review
with the CAAF, making no mention of post-trial delay. The Government
moved to dismiss this petition as unripe because this court’s Article 66,
UCMJ, review was not complete. On 5 March 2018, the CAAF granted the
motion to dismiss without prejudice.
   On 7 March 2018, the Government moved this court to reconsider its 6
February 2018 opinion. Appellant opposed the motion and the court denied
the motion for reconsideration on 3 April 2018.
    On 7 June 2018, the Military Justice Division of the Air Force Legal Op-
erations Agency (AFLOA/JAJM) notified the General Court-Martial Conven-
ing Authority (GCMCA) of this court’s remand (Phillips III). On 13 June
2018, a new staff judge advocate’s recommendation was sent to Appellant’s
trial defense counsel. On 22 June 2018, Appellant submitted clemency mat-
ters, asserting a Moreno delay based on the original 2015 date of docketing.
The GCMCA took action on 17 July 2018. The court-martial order (CMO) was
distributed on 27 July 2018. Between 21 August and 28 August 2018,
AFLOA/JAJM and the GCMCA’s legal office discussed the language of the
action and corresponding CMO and ultimately determined that, while the
language was technically correct, a new action and CMO should be prepared
“for administrative clarity.” The new action and CMO were signed on 28 Au-
gust 2018, 82 days after the remand by this court. On 4 September 2018, the
new CMO was mailed to AFLOA/JAJM.
   Appellant’s case was again re-docketed with this court on 9 September
2018. Appellant filed an out-of-time brief on 12 October 2018.
   3. Analysis
   This court issued Phillips I and III within 18 months of the respective
docketing dates, and consequently there is no presumption of facially unrea-
sonable delay. See Moreno, 63 M.J. at 142. This opinion is issued less than six
months from docketing Appellant’s case after our remand for new post-trial
processing, and consequently there is also no presumption of facially unrea-
sonable delay. See id. Without a presumptively unreasonable delay, we need
not conduct a Barker analysis. See Mackie, 72 M.J. at 136 (citing Roach, 69
M.J. at 22).
   Recognizing our authority under Article 66, UCMJ, we have also consid-
ered whether relief for excessive post-trial delay is appropriate even in the
absence of a due process violation. See United States v. Tardif, 57 M.J. 219,
223–25 (C.A.A.F. 2002). After considering the factors enumerated in United



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              United States v. Phillips, No. ACM 38771 (f rev)


States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264
(C.A.A.F. 2016), we conclude it is not.

                             III. CONCLUSION
     The approved findings and sentence are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred.
Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c) (2016). According-
ly, the findings and the sentence are AFFIRMED.


                FOR THE COURT



                CAROL K. JOYCE
                Clerk of the Court




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