                       UNITED STATES, Appellee

                                    v.

     Michael IGNACIO, Cryptologic Technician (Interpretive)
                  First Class (E-6), U.S. Navy,
                            Appellant

                              No. 12-0202

                       Crim. App. No. 201100062

       United States Court of Appeals for the Armed Forces

                        Argued April 23, 2012

                         Decided May 10, 2012

                               PER CURIAM

                                 Counsel


For Appellant:    Captain Michael D. Berry, USMC (argued).

For Appellee: Lieutenant Benjamin J. Voce-Gardner, USN
(argued); Colonel Kurt J. Brubaker, USMC, and Brian K. Keller,
Esq. (on brief).

Military Judge:   Donald C. King


       This opinion is subject to revision before final publication.
United States v. Ignacio, No. 12-0202/NA

     PER CURIAM:

     Court members sitting as a general court-martial convicted

Cryptologic Technician First Class Michael Ignacio of abusive

sexual contact in violation of Article 120(h), Uniform Code of

Military Justice, 10 U.S.C. § 920(h).   The convening authority

approved the adjudged sentence of a bad-conduct discharge, three

years of confinement, forfeiture of all pay and allowances, and

reduction to E-1.   The United States Navy-Marine Corps Court of

Criminal Appeals affirmed the findings and sentence.   United

States v. Ignacio, No. NMCCA 20110062, slip op. at 2 (N-M. Ct.

Crim. App. Nov. 8, 2011).

     When discussing the proposed instructions on evidence of

consent, the military judge explained on the record why he would

instruct the panel pursuant to the Military Judges’ Benchbook1

rather than the statutory language.   See United States v.

Prather, 69 M.J. 338 (C.A.A.F. 2011); United States v. Medina,

69 M.J. 462, 465 (C.A.A.F. 2011).    The military judge’s

instructions included the statement that “[e]vidence of consent

is relevant to whether the prosecution has proven the elements

of the offense beyond a reasonable doubt” and that “[t]he

prosecution has the burden to prove beyond a reasonable doubt

that consent did not exist.”   We granted review of this case to



1
  Dep’t of the Army, Pam. 27-9, Legal Services, Military Judges’
Benchbook (2010).

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United States v. Ignacio, No. 12-0202/NA

determine if the military judge erred in so instructing the

panel.

     “Whether a panel was properly instructed is a question of

law reviewed de novo.”   United States v. Ober, 66 M.J. 393, 405

(C.A.A.F. 2008).   “If [evidence of consent] is presented, the

judge must ensure that the factfinder is instructed to consider

all of the evidence, including the evidence raised by the

defendant that is pertinent to the affirmative defense, when

determining whether the prosecution established guilt beyond a

reasonable doubt.”   United States v. Neal, 68 M.J. 289, 304

(C.A.A.F. 2010).   Here the instructions correctly conveyed the

Government’s burden to the members.   The decision of the United

States Navy-Marine Corps Court of Criminal Appeals is therefore

affirmed.




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