        U NITED S TATES N AVY –M ARINE C ORPS
            C OURT OF C RIMINAL A PPEALS
                      _________________________

                          No. 201700190
                      _________________________

               UNITED STATES OF AMERICA
                              Appellee
                                 v.
                      Peter A. SALAS III
             Lance Corporal (E-3), U.S. Marine Corps
                           Appellant
                    _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

                         Military Judges:
         Major Michael Zimmerman, USMC (arraignment);
     Lieutenant Colonel Brian Kasprzyk, USMC (Article 39(a));
           Colonel Matthew Kent, USMC (Article 39(a));
                    Major Mark Sameit (trial).

             For Appellant: Robert A. Feldmeier, Esq.;
               Captain Andrew House, JAGC, USN.

     For Appellee: Lieutenant Allyson L. Breech, JAGC, USN;
           Lieutenant Megan P. Marinos, JAGC, USN.
                      _________________________

                     Decided 3 December 2018
                      _________________________

            Before W OODARD , F ULTON , and C RISFIELD ,
                    Appellate Military Judges
                     _________________________

This opinion does not serve as binding precedent but may be cited as
persuasive authority under NMCCA Rule of Practice and Procedure
18.2.
                      _________________________
                      United States v. Salas, No. 201700190


WOODARD, Chief Judge:
   A panel comprised of officer and enlisted members sitting as a general
court-martial convicted the appellant, contrary to his pleas, of rape in violation
of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920
(2016). 1 The members sentenced the appellant to four years’ confinement, re-
duction to pay grade E-1, and a dishonorable discharge. Except for the dishon-
orable discharge, the sentence was ordered executed.
    The appellant raises the following four assignments of error: (1) his trial
defense team was ineffective for failing to timely raise a motion to compel ex-
pert assistance; (2) his trial defense team was ineffective for failing to raise a
motion to suppress his recorded statements to a confidential informant; 2
(3) the military judge abused his discretion by denying—as untimely and with-
out good cause—his motion to compel an expert consultant; and (4) his convic-
tion was factually insufficient. Although not raised as error, we note that the
Staff Judge Advocate’s Recommendation (SJAR) recommends, 3 and the prom-
ulgating order approves and orders executed, a sentence which includes total
forfeitures. The sentence adjudged by the court-martial did not include forfei-
tures. We order corrective action in our decretal paragraph. After taking this
corrective action, we are convinced that the findings and sentence are correct
in law and fact and find no error materially prejudicial to the substantial rights
of the appellant. Arts. 59(a) and 66(c), UCMJ.
                                  I. BACKGROUND
    The appellant and JW shared a short but significant history. They met
as high school seniors in Texas, worked part-time together until gradua-
tion, and developed a sexual relationship. After graduating high school in
2015, JW started college and the appellant joined the Marine Corps. Upon
graduating boot camp and completing his occupational specialty training,
the appellant was stationed at Marine Corps Recruit Depot, San Diego,

    1The appellant was acquitted of two specifications of sexual assault in violation of
Article 120(b)(1)(B), UCMJ. One of these specifications involved JW (the victim of the
offense now under review), and the other specification involved a separate alleged vic-
tim (OL).
    2This assignment of error is raised pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982).
    3 In the SJAR, the staff judge advocate states that he has reviewed the report of
results of trial, attached to the SJAR as enclosure (1), and it accurately reflects the
sentence adjudged in the case. However, the report of results of trial attached to the
SJAR reflects a sentence that includes reduction to pay grade E-1, confinement for four
years, total forfeitures, and a dishonorable discharge. SJAR of 19 April 2017 at 1; Re-
port of Results of Trial of 16 February 2017 at 2.



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                        United States v. Salas, No. 201700190


California, on 22 March 2016. Although they were separated geographically,
the appellant and JW’s relationship deepened. As described by JW at trial, the
relationship became very serious—they were sexually active, were planning to
get married, and she planned to move to San Diego and attend college there so
that she could be near the appellant.
   When the appellant was scheduled to be promoted to Lance Corporal
(LCpl) on 1 May 2016, JW traveled to California to attend the ceremony
and look for a job in the area. For her stay in California, JW rented an
“Airbnb.” 4
    The day following the appellant’s promotion he was going through the
text messages on JW’s cellphone and became convinced that JW was cheating
on him. JW testified that when the appellant confronted her about the mes-
sages and threatened to end their relationship, she told the appellant that she
was not cheating on him, he had misunderstood the messages, and that she
would do anything to regain his trust. In response, JW said that the appellant
pointedly and repeatedly looked at his crotch, which she understood as an im-
plied demand that she had to give him oral sex. Although she testified that she
told the appellant she did not want to perform oral sex, that it wouldn’t “prove
anything to him,” 5 and tried to stop, the appellant pushed her head down to
make her comply. She further recounted that she thought at the time that oral
sex was the only way to convince him to stay. After the appellant ejaculated,
they went to bed. Despite this incident, JW testified that she still wanted to
remain in a relationship with the appellant. 6
    The next day, while the appellant was at work, although not admitting that
she had cheated on him, JW wrote the appellant a letter apologizing for hurting
him. When the appellant returned from work to the Airbnb, JW gave him the
letter and the appellant just threw it aside. JW then testified that the next
thing she remembered, she was on the bed on her stomach with the appellant
pinning her to the bed so that she could not move—raping her. She further
testified that she told him “stop” and “no” in a loud voice multiple times. 7 She
recounted that the appellant responded, “You know this isn’t rape, right?” 8 At
some point the appellant shifted his weight and JW escaped to the bathroom
crying. When she came out of the bathroom, she saw that the appellant was


   4“Airbnb” is an application based service where home or apartment owners can
temporarily sublease their property to travelers for a predetermined price.
   5   Record at 345.
   6   The appellant was acquitted of sexual assault for this incident.
   7   Record at 350.
   8   Id.


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                          United States v. Salas, No. 201700190


dressed and preparing to leave. She then pulled off his shirt and they had con-
sensual sex. The next day the appellant ended their relationship, and JW flew
home early to Texas.
      Although JW did not report these incidents to law enforcement, shortly af-
ter arriving back in Texas she did inform the appellant’s cousin Ms. M, her
cousin Ms. D, and her Aunt E about her rape and alleged sexual assault. At
trial, JW testified that she did not report the events to law enforcement be-
cause “it took me a long time to figure out what to call it, and I still loved him
. . . and didn’t want to hurt his career . . . and I didn’t think anyone would even
believe me.” 9 JW did not discuss the incidents with law enforcement until an
investigator from the Naval Criminal Investigative Service (NCIS) contacted
her. This in turn did not occur until two other individuals contacted NCIS re-
garding the appellant. The first was the appellant’s friend and former room-
mate, LCpl JM, and the second was another alleged victim, OL.
    On 15 August 2016, LCpl JM reported to NCIS that, while having a con-
versation with the appellant about a call that the appellant had received from
JW, the appellant told him that he had raped JW. LCpl JM did not know JW
and had only seen her at the appellant’s promotion ceremony. In recounting
the details of the phone conversation to NCIS, LCpl JM stated that the appel-
lant told him JW had threatened to report him to his command for raping her
if he did not take her back. 10 When JM asked the appellant if he was “for real,”
the appellant responded that he was. 11
    Based on LCpl JM’s report, NCIS opened an investigation. Initially,
NCIS intended to just contact JW to see if she would cooperate with the
investigation. However, before NCIS could contact JW about the allegation,
a second victim, OL, came forward with additional allegations of sexual as-
sault against the appellant. This prompted NCIS to seek to use LCpl JM
as a confidential informant in an attempt to elicit admissions from the ap-
pellant.
    LCpl JM agreed to act as a confidential informant and meet with the
appellant while wearing a concealed recording device. During the recorded
conversation, the appellant discussed the two incidents involving JW and
made several incriminating statements. At the conclusion of the conversa-
tion, the appellant was taken into custody by NCIS. Two days later, NCIS


    9Id. at 353. JW also testified she believed people would not believe “your boyfriend
can even rape you” and the fact “he had told me it wasn’t rape” influenced her decision
to not report the incidents. Id.
    10   At trial, JW denied ever making such a threat. Id. at 386.
    11   Id. at 484-85.


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                    United States v. Salas, No. 201700190


contacted JW for the first time. When interviewed by NCIS, JW provided a
statement detailing how the appellant raped her.
   Additional facts necessary to the resolution of the assignments of error
are included below.
                                II. DISCUSSION
A. Ineffective assistance of counsel
    The appellant avers that he was denied effective assistance of counsel be-
cause his trial defense team failed to timely file a motion to compel the produc-
tion of an expert consultant and failed to file a motion to suppress the un-
warned recorded statements of the appellant to LCpl JM. We disagree.
    We review claims of ineffective assistance de novo. United States v. Akbar,
74 M.J. 364, 379 (C.A.A.F. 2015). The appellant bears the burden of showing:
(1) the defense team’s performance was deficient; and (2) there is a reasonable
probability that the deficient performance prejudiced the appellant at trial.
Strickland v. Washington, 466 U.S. 668, 687 (1984). There is a “strong pre-
sumption that counsel’s conduct falls within the wide range of reasonable as-
sistance” Id. at 689. Since counsel are presumed competent, the appellant must
rebut this presumption by showing specific errors that were unreasonable un-
der prevailing professional norms. United States v. Scott, 24 M.J. 186, 188
(C.M.A. 1987) (citing United States v. Cronic, 466 U.S. 648, 104 (1984)).
    “[W]hen a claim of ineffective assistance of counsel is premised on counsel’s
failure to make a motion, . . . an appellant must show that there is a reasonable
probability that such a motion would have been meritorious.” United States v.
Jameson, 65 M.J. 160, 163-64 (C.A.A.F. 2007) (quoting United States v.
McConnell, 55 M.J. 479, 482 (C.A.A.F 2001) (motion to suppress evidence)). In
this regard, the term “meritorious” is synonymous with “successful.” Jameson,
65 M.J. at 164. “[T]he decisional issue is whether [a]ppellant has carried his
burden to show that his counsel would have been successful if he filed a timely
motion.” Id.
     If we determine that appellant’s counsel were deficient by failing to timely
file an otherwise meritorious motion, we then test for prejudice. The appropri-
ate test for prejudice is whether “there is a reasonable probability that, but for
counsel’s [deficiency], the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
     To determine whether there is a reasonable probability that a motion to
compel the production of expert assistance or a motion to suppress the appel-
lant’s unwarned recorded statements to LCpl JM would have been successful,
it is necessary that we consider the merits of these issues.




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                     United States v. Salas, No. 201700190


   1. Motion to compel production of expert assistance
    The defense is entitled to an expert’s assistance upon demonstration of ne-
cessity and a showing that “denial of expert assistance would result in a fun-
damentally unfair trial.” United States v. Bresnahan, 62 M.J. 137, 143
(C.A.A.F. 2005) (citations omitted). However, necessity is more than the “mere
possibility of assistance from a requested expert.” United States v. Gunkle, 55
M.J. 26, 31 (C.A.A.F. 2001) (citation omitted). The appellant must prevail on
both prongs by a “reasonable probability.” Bresnahan, 62 M.J. at 143. Reason-
able probability is something more than the stated desire to explore all possi-
bilities, rule out non-specific theories, or the mere possibility of assistance. Id.
   The “necessity” standard has a three-part test under which the appellant
“must show: (1) why the expert assistance is needed; (2) what the expert assis-
tance would accomplish for the [appellant]; and (3) why the defense counsel
were unable to gather and present the evidence that the expert assistance
would be able to develop.” Id. (citations omitted).
       a. Additional background facts
     At the appellant’s arraignment on 15 November 2016, the appellant re-
served entering his pleas until a later date. The military judge then entered a
trial management order (TMO) setting trial milestones in the case, to which
the appellant agreed. Included in these milestones were the deadlines for the
filing of expert assistance requests, the filing of motions, and the written entry
of pleas and forum. In accordance with the TMO, all expert assistance requests
were to be made not later than 23 November 2016 with the government’s re-
sponse to those requests due not later than 1 December 2016. All motions were
to be filed not later than 5 December 2016. Additionally, a deadline of 9 Janu-
ary 2017 was set for the submission of written notice of pleas and forum. De-
spite the dates set in the TMO, the appellant did not submit a request for ex-
pert assistance to the convening authority until 28 November 2016. Although
the record does not reflect when it was denied, we assume that the request was
denied before 9 January 2017.
    On 9 January 2017, the appellant’s counsel requested an unscheduled Ar-
ticle 39(a), UCMJ, session in order to address a MILITARY RULE OF EVIDENCE
(MIL. R. EVID.) 412, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.)
issue. The court agreed and set the date of 18 January 2018 to hear the MIL.
R. EVID. 412 issue. However, in addition to filing a MIL. R. EVID. 412 motion,
the appellant also filed a motion to exclude evidence pursuant to MIL. R. EVID.
404(b), and a motion to compel production of an expert assistant. The appellant
also entered his written pleas and election of forum on the same date.
    On the morning of 18 January 2017, prior to the Article 39(a), UCMJ, ses-
sion, the military judge informed counsel that although he would consider the


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                         United States v. Salas, No. 201700190


MIL. R. EVID. 412 and 404(b) motions, absent good cause for the late filing, he
would not be considering the motion to compel expert assistance. During the
Article 39(a), UCMJ, session, the appellant’s counsel articulated his reasoning
for the late filing. The military judge determined that counsel had not shown
good cause for the late filing and declined to hear the untimely motion.
         b. Analysis
    Although the military judge did not consider the merits of the motion to
compel production of expert assistance on the record, the record does contain
the appellant’s written motion and the government’s written response. The
record also contains the complete record of a related sealed proceeding wherein
the appellant’s counsel sought to explore, at trial, a prior sexual trauma alleged
to have been suffered by JW. The record as a whole provides us sufficient detail
to evaluate the merits of the motion to compel production of expert assistance.
    The motion to compel production of expert assistance explains why the de-
fense believed expert assistance was needed, what the defense expected the
expert would accomplish, why counsel believed they were unable to gather and
present the “information” they believed the expert would develop,the evidence
that the trial defense team intended to offer at the motions hearing, and their
argument in support of the motion. We note the motion also states that the
only evidence to be offered in support of the motion was the appellant’s request
submitted to the convening authority for the employment of an expert forensic
psychologist which was substantially the same as the motion. The appellant’s
request to the convening authority was attached to the motion and thus a part
of the record.
     In the written motion, the appellant’s counsel argued that an expert was
needed because they believed, based upon JW’s prior statements to NCIS and
her testimony during the Article 32, UCMJ, preliminary hearing, that JW ex-
perienced sexual trauma as a junior in high school when her youth pastor so-
licited her on-line. 12 They argued this prior sexual trauma “continued to have
an impact on her,” and that this “prior sexual trauma ha[d] caused [JW] to
misinterpret and misremember what happened between her and the [appel-
lant].” 13 If the expert assistance was granted, the trial defense team stated that
they would consult with the expert “in order to determine how [the prior sexual
trauma] affect[ed] her memory, competency, bias, and motive to misrepresent
in order to develop impeachment evidence.” 14 As the appellant’s singular
stated basis for the need of expert assistance was that JW was then under some

   12 The record is absent of any information related to the substance of the youth
pastor’s on-line comments to JW.
   13   AE XVIII at 3.
   14   Id. at 3.


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                      United States v. Salas, No. 201700190


sort of enduring psychological impact from the incident involving her youth
pastor, in order for this court to be satisfied that the first prong of the “neces-
sity” standard has been met, we must be satisfied that there is a reasonable
probability the incident resulted in enduring psychological impact to JW.
    The question of whether JW suffered some sort of enduring psychological
injury from the incident involving her youth pastor was answered in the re-
lated MIL. R. EVID. 412 motion proceeding. Based upon our review of the record
of that proceeding during which JW testified that she did not know if the inci-
dent has caused her any enduring psychological issues, 15 we, like the military
judge, find “there [is] no evidence . . . that [the on-line solicitation of JW by her
youth pastor] affected her any way other than the fact that she had been
through the [legal] process before.” 16
    Having found there was no evidence to support that JW was suffering from
some sort of enduring psychological impact from the incident with her youth
pastor, we also find that there is no reasonable probability that the assistance
of an expert in the field of forensic psychology was necessary. Thus the motion
to compel expert assistance lacked merit.
  2. Motion to suppress the unwarned recorded statements of the appellant to
LCpl JM
   Article 31, UCMJ, states in pertinent part:
             (b) No person subject to this chapter may interrogate, or re-
         quest an accused or a person suspected of an offense without
         first informing him of the nature of the accusation and advising
         him that he does not have to make any statement regarding the
         offense of which he is accused or suspected and that any state-
         ment made by him may be used as evidence against him in a
         trial by court-martial.
              ....
             (d) No statement obtained from any person in violation of
         this article, or through the use of coercion, unlawful influence,
         or unlawful inducement may be received in evidence against him
         in a trial by court-martial.




   15 When asked if the incident caused her to suffer any “post-traumatic stress type
issues,” JW stated that she did not know but that she was “more afraid of the police
than anybody else.” Record at 89.
   16   Id. at 110.


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                    United States v. Salas, No. 201700190


    “Thus, Article 31(b), UCMJ, warnings are required when (1) a person sub-
ject to the UCMJ, (2) interrogates or requests any statement, (3) from an ac-
cused or person suspected of an offense, and (4) the statements regard the of-
fense of which the person questioned is accused or suspected.” United States v.
Jones, 73 M.J. 357, 361 (C.A.A.F. 2014) (citation and footnotes omitted). Un-
derstanding that if these predicates were literally applied they would have
“comprehensive and unintended reach into all aspects of military life and mis-
sion” United States v. Cohen, 63 M.J. 45, 49 (C.A.A.F. 2006), the Court of Ap-
peals for the Armed Forces (CAAF) found that under Article 31(b)’s second re-
quirement—interrogates or requests any statement—rights warnings are re-
quired if “the person conducting the questioning is participating in an official
law enforcement or disciplinary investigation or inquiry.” United States v.
Swift, 53 M.J. 439, 446 (C.A.A.F. 2000).
    However, cases involving undercover officials and informants, like the pre-
sent case, involve unique considerations. As noted by the CAAF in Jones,
“[b]ecause undercover officials and informants do not usually place the accused
in a position where a reasonable person in the accused’s position would feel
compelled to reply to questions . . . logic dictates that Article 31(b), UCMJ,
would not apply in those situations.” Jones, 73 M.J. at 361 n.5. The Jones court,
modifying its previous ruling in United States v. Duga, 10 M.J. 206 (C.M.A.
1981), adopted a two-prong test for determining whether statements by an ac-
cused to an undercover official or informant must be suppressed.
    The appellant asserts that his counsel were ineffective because they did not
move to suppress the appellant’s unwarned recorded statements to LCpl JM
when LCpl JM questioned him while participating in an official law enforce-
ment or disciplinary investigation. Observing that LCpl JM was participating
in an official law enforcement or disciplinary investigation as a confidential
informant, we will analyze whether the appellant’s unwarned recorded state-
ments to LCpl JM would have been suppressed under the Jones two-prong test.
    Under the first prong of the Jones test, we must initially determine
whether LCpl JM was “participating in an official law enforcement or discipli-
nary investigation or inquiry, as opposed to having a personal motivation for
the inquiry.” Id. at 361 (internal quotation marks and citation omitted). We
find that he was.
    After LCpl JM reported to NCIS that the appellant admitted to raping JW,
NCIS enlisted his assistance as a confidential informant. While acting as a
confidential informant, under the direct observation of NCIS, and wearing a
body wire to surreptitiously record their conversation, LCpl JM met with the
appellant and questioned him about the offenses he was suspected of commit-
ting. Accordingly, LCpl JM was plainly participating in an official law enforce-
ment investigation.


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                    United States v. Salas, No. 201700190


    Having found that LCpl JM was participating in an official law enforce-
ment investigation, under the second prong of the Jones test we must now de-
termine whether a reasonable person in the appellant’s position would have
concluded that LCpl JM was acting in an official law enforcement or discipli-
nary capacity. Jones, 73 M.J. at 362. Given the totality of the circumstances,
we conclude that a reasonable person in appellant’s position would not have
believed that LCpl JM was acting in an official law enforcement or disciplinary
capacity.
    At the time LCpl JM was acting as a confidential informant for NCIS, he
and the appellant were good friends. They had previously been roommates for
approximately four months, and, even after being moved into different rooms,
were still neighbors in the barracks. Outside of work the two Marines spent
extensive time together playing video games, going to the movies, eating out,
and talking about their families and personal issues. When LCpl JM, acting as
a confidential informant, met with the appellant, they met at a public location
where he and the appellant had frequently gathered to play video games. Fi-
nally, when LCpl JM asked the appellant about their previous conversation
during which the appellant admitted he raped JW, despite expressing concerns
about potentially being under investigation and someone potentially listening
to their conversation, the appellant willingly discussed what had happened
with JW.
    Having concluded that neither the motion to compel the production of ex-
pert assistance nor a motion to suppress the appellant’s unwarned recorded
statements to LCpl JM’s possessed merit, we find no merit in the appellant’s
claims of ineffective assistance of counsel for failing to timely raise those mo-
tions.
   3. Military judge’s denial of expert assistance
   The appellant also avers that the military judge abused his discretion by
denying his motion to compel the production of expert assistance as untimely.
Even assuming arguendo that it was error for the military judge to deny the
appellant’s motion as untimely, if the denial of the motion did not prejudice the
appellant’s substantial rights, then no relief is warranted.
     Here, prejudice to the accused’s substantial rights could only have resulted
if there was a reasonable probability that the motion would have been success-
ful on its merits. Having already determined that the motion lacked merit, we
also find that this assignment of error is without merit.




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                        United States v. Salas, No. 201700190


B. Factual sufficiency
    The appellant challenges the factual sufficiency of his conviction 17 arguing
that this court cannot be convinced beyond a reasonable doubt of his guilt be-
cause JW’s behavior was inconsistent with that of a rape victim and that when
the appellant told LCpl JM that he had raped JW, his words were nothing more
than “misogynistic . . . braggadocio.” 18 We disagree, and find the conviction fac-
tually sufficient.
    We review questions of factual sufficiency de novo. Art. 66(c), UCMJ;
United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The test for
factual sufficiency is whether “after weighing the evidence in the record of trial
and recognizing that we did not see or hear the witnesses as did the trial court,
this court is convinced of the appellant’s guilt beyond a reasonable doubt.”
United States v. Rankin, 63 M.J. 552, 557 (N-M. Ct. Crim. App. 2006) (citing
United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987) and Art. 66(c), UCMJ),
aff’d on other grounds, 64 M.J. 348 (C.A.A.F. 2007). 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.” Washington, 57 M.J. at
399. Proof beyond a reasonable doubt does not mean, however, that the evi-
dence must be free from conflict. United States v. Goode, 54 M.J. 836, 841 (N-M.
Ct. Crim. App. 2001).
    The appellant stands convicted of raping JW in violation of Article 120(a),
UCMJ. To sustain a conviction under this statute, we must be convinced be-
yond a reasonable doubt that: (1) the appellant committed a sexual act upon
JW, to wit: penetration of her vulva with his penis; and (2) the appellant did
so by using unlawful force, to wit: any act of force done without legal justifica-
tion or excuse. MCM, Part IV, ¶ 45.b.(1)(a). “Force” means “the use of physical
strength or violence as is sufficient to overcome, restrain, or injure a person.”



   17 We note that the appellant does not challenge the legal sufficiency of his convic-
tion. However, we are mindful that Article 66(c), UCMJ requires us “to conduct a de
novo review of [both the] legal and factual sufficiency of the case.” United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (citing United States v. Cole, 31 M.J.
270, 272 (C.M.A. 1990). “The test for legal sufficiency of the evidence is whether, con-
sidering the evidence in the light most favorable to the prosecution, a reasonable fact-
finder could have found all the essential elements beyond a reasonable doubt.” United
States v. Humphreys, 57 M.J. 83, 94 (C.A.A.F. 2002) (citation and internal quotation
marks omitted). We find the evidence legally sufficient.
   18   Appellant’s Brief of 14 Sep 2017 at 15.



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                         United States v. Salas, No. 201700190


Id. at ¶ 45.a.(g)(5). “Unlawful force” is defined as “an act of force done without
legal justification or excuse.” Id. at ¶ 45.a.(g)(6).
    Here, the evidence establishes that the appellant penetrated JW’s vulva
with his penis with the required degree of force to overcome and restrain JW
and that the force was unlawful. JW’s unrebutted testimony was that while
penetrating her vulva with his penis from behind, the appellant held her down
on the bed by pressing his forearm between her shoulder blades and forced her
face into the mattress by pressing on the back of her neck with his hand. JW
also testified that she told the appellant “no” and “stop” several times to which
the appellant responded without stopping, “You know this isn’t rape; right?” 19
Furthermore, JW’s testimony describing her rape by the appellant was corrob-
orated by the appellant’s multiple admissions to LCpl JM.
    The first time the appellant spoke to LCpl JM about the rape of JW was on
7 August 2016—prior to LCpl JM reporting the rape to NCIS and becoming a
confidential informant for NCIS. After the appellant received a call from JW
in LCpl JM’s presence, the appellant told LCpl JM that JW had said that if
he—the appellant—would not “get back with [her]” she would report him to
the command for rape. 20 When asked by LCpl JM whether he had raped JW,
the appellant responded, “[y]es, I did rape her.” 21 In the same conversation the
appellant described the rape to LCpl JM, “I hold [sic] her down on the bed and
I raped her. It wasn’t that hard. She only weighs 115 pounds, so it was pretty
easy to hold her down.” 22 And when LCpl JM asked the appellant if he was
kidding, the appellant responded, “[n]o, I’m not joking. I did rape her.” 23
   The second time the appellant discussed the rape of JW with LCpl JM was
on 24 August 2016—after LCpl JM had become a confidential informant for
NCIS. During this conversation the appellant confirmed that he had told
LCpl JM that he had raped JW and that he had used force to do so.
    Even after considering, as she testified to at trial, that JW engaged in con-
sensual sexual intercourse with the appellant shortly after he raped her, and
that after being raped she initially hoped to be able to continue a long term
relationship with the appellant, we find her testimony that the appellant raped
her by force credible and corroborated by the appellant’s own words. Further-
more, considering the circumstance under which they were made and the rela-
tionship between the appellant and LCpl JM, we do not find the appellant’s

   19   Record at 350.
   20   Id. at 484.
   21   Id. at 485.
   22   Id. at 485.
   23   Id. at 495.


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                    United States v. Salas, No. 201700190


statements to LCpl JM to be “misogynistic braggadocio” made in jest. Instead,
we find them to be admissions. After weighing the evidence in the record of
trial, and taking into account that we did not personally see or hear the wit-
nesses, like the members, we too are firmly convinced of the appellant’s guilt.
Rankin, 63 M.J. at 557.
C. Error in the SJAR and promulgating order
   Although not raised as error by the parties, we note that the SJAR recom-
mends and the promulgating order approves and orders executed a sentence
which includes total forfeitures. Here the members only adjudged a sentence
that included four years’ of confinement, reduction to pay grade E-1, and a dis-
honorable discharge. This is error and it is plain and obvious. However, in or-
der to be granted any relief there must be “some colorable showing of possible
prejudice.” United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000) (citation omit-
ted).
    Here, the appellant’s adjudged sentence included confinement for four
years and a dishonorable discharge. As such, by operation of law, 14 days after
the date his sentence was adjudged, he automatically forfeited all pay and al-
lowance. Arts. 58b(a)(1)-(2) and 57(a), UCMJ. Accordingly, the errors in the
SJAR and promulgating order did not prejudice him as they did not deprive
him of any pay or allowances he would have been entitled to, absent the errors.
However, the appellant is entitled to court-martial records which accurately
reflect his sentence. United States v. Crumpley, 49 M.J. 538, 539 (N-M. Ct.
Crim. App. 1998). To ensure his adjudged sentence is accurately reflected, we
order the necessary corrective action in our decretal paragraph.
                             III. CONCLUSION
   The findings and sentence are affirmed. The supplemental court-martial
order shall reflect that the appellant was sentenced to confinement for four
years, reduction to pay grade E-1, and a dishonorable discharge.
   Senior Judge FULTON and Judge CRISFIELD concur.


                                    FOR THE COURT




                                    RODGER A. DREW, JR.
                                    Clerk of Court




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