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

                                 Before
              J.A. FISCHER, B.T. PALMER, T.H. CAMPBELL
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                       JUSTIN M. MOHEAD
         CULINARY SPECIALIST THIRD CLASS (E-4), U.S. NAVY

                          NMCCA 201400403
                      GENERAL COURT-MARTIAL

Sentence Adjudged: 10 Jul 2014.
Military Judge: CDR John Han, JAGC, USN.
Convening Authority: Commander, Navy Region Mid-Atlantic,
Norfolk, VA.
Staff Judge Advocate's Recommendation: CDR S.J. Gawronski,
JAGC, USN.
For Appellant: LT David Warning, JAGC, USN.
For Appellee: Maj Suzanne Dempsey, USMC; LCDR Keith
Lofland, JAGC, USN.

                            29 October 2015

     ---------------------------------------------------
                     OPINION OF THE COURT
     ---------------------------------------------------

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

CAMPBELL, Judge:

     A panel of members with enlisted representation sitting as
a general court-martial convicted the appellant, contrary to his
pleas, of an abusive sexual contact and two sexual assault
specifications in violation of Article 120 Uniform Code of
Military Justice, 10 U.S.C. § 920. 1 The sentence by the members—
three years’ confinement, reduction to pay grade E-1, total
forfeiture of pay and allowances, and a bad-conduct discharge—
was approved by the convening authority (CA) and ordered
executed, except for the punitive discharge.

     The appellant raises six assignments of error (AOEs): (1)
insufficient evidence supports the conviction of abusive sexual
contact; (2) the military judge should have instructed the
members on mistake of fact as to consent for the abusive sexual
contact; (3) insufficient evidence supports the conviction of
sexual assault of a victim incapable of consenting; (4) the
military judge abused his discretion by failing to dismiss one
of the two sexual assault convictions based on a single criminal
act; (5) the CA engaged in systematic exclusion of potential
members based on rank; and (6) the Government improperly failed
to disclose the CA’s member selection instruction.

     After carefully considering the record of trial and
parties’ submissions, we find merit in the third AOE. Taking
corrective action in our decretal paragraph, we conclude the
remaining findings and sentence are correct in law and fact, and
no error materially prejudicial to the appellant’s substantial
rights remains. Arts. 59(a) and 66(c), UCMJ.

                              I.   Background

     The appellant and H.C. had been close friends for years,
and H.C. considered and referred to the appellant as her
brother. During July 2012 H.C. visited the appellant at Naval
Station Norfolk. While the appellant worked, H.C. watched TV in
his barracks room and at night slept on an inflatable mattress
at the foot of his bed. Another of the appellant’s civilian
friends, W.J., also stayed in the barracks room throughout
H.C.’s visit and slept on the floor. W.J. testified he never
observed romantic interactions between the appellant and H.C.,
and described theirs as a brother/sister relationship.

     One evening H.C. lay on her side on the appellant’s bed
watching TV. The appellant lay down behind her and rubbed her
thigh and buttocks with his hand. Not understanding or
approving, she looked at him and asked what he thought he was
doing. He immediately stopped.



1
  The appellant was found not guilty of communicating a threat in violation of
Article 134, UCMJ, 10 U.S.C. § 934.
                                      2
     On another evening, H.C. and the appellant planned to hang
out with W.J. and another friend, Petty Officer J.S., in the
appellant’s room. W.J. did not drink. The others played
drinking games and consumed vodka shots and mixed drinks made
with several hard liquors. W.J. testified H.C. drank eight
shots and five or six Solo cup-sized mixed drinks until she
became very drunk. 2 As the appellant concedes, H.C. became
intoxicated to the point of vomiting and blacking out in the
bathroom before the appellant carried her to his bed. 3 According
to W.J., that may have happened as early as 9 p.m. and as late
as 2 a.m. Although drunk, H.C. insisted she could still sleep
on the air mattress, but the appellant told her she was sleeping
in the bed. It then appeared to W.J. that H.C. passed out in
bed. Then W.J. played video games on the air mattress as the
appellant laid in the bed facing away from H.C. 4 Sometime around
3 a.m., the appellant told W.J. to get some rest. Once he
turned off the video game, W.J. heard H.C. snoring in the bed.

     W.J. did not fall asleep. He later heard the bed creaking.
He “could kind of see [the appellant] over the top of her”
moving “up and down or back and forth,” as H.C.’s arm hung over
the edge of the bed. 5 Eventually, W.J. heard H.C. moan and say,
“‘We’re being bad.’ Then there was, ‘What are we doing?’ And
then it was like, you know, ‘Stop.’ Because like, ‘you’re
supposed to be my brother and you are not supposed to do this
like with me. You’re supposed to protect me, that’s what you
said you would do. Stop.’” 6 After H.C. began crying, W.J. heard
the appellant tell her to shut up before the appellant finally
got up and went to the bathroom. W.J. testified H.C. then came
to the foot of the bed and asked if he was awake, went to the
bathroom when the appellant came out, got dressed, and left.
W.J. followed her out of the room to a terrace. It was sunrise
by then, 7 and H.C. “seemed more so sobered up, was able to like,
talk more clearly, walked more upright, and could sit up
straight.” 8 The two spoke between H.C.’s phone conversations.

2
    Record at 521-23.
3
    Appellant’s Brief of 9 Feb 2015 at 4.
4
    Record at 528.
5
    Id. at 529-30.
6
    Id. at 531.
7
    Id. at 542.
8
    Id. at 556.
                                        3
     H.C.’s recollection of the assault begins with her being
carried from the bathroom to the bed and sometime later
realizing the appellant was on top of her having sex. 9 She
remembered telling the appellant what was happening was bad, it
was not what she wanted, no, and stop. 10 In response to her
protests asking her “brother” to stop, H.C. testified the
appellant replied, “‘[n]o, we’re not, shh, be quiet, shut up’
things like that[.]” 11 H.C. further described their exchange:

           I cried. I talked—I tried to reason with him to get
           him to stop, because there was so many factors as to
           why this was so wrong, you know, him being friends
           with my estranged boyfriend who I still wanted to work
           things out, but still you know their friendship and
           then, I just, I kept trying to talk to him about, you
           know, I said, “What about [J]?” And he said, “Look at
           this as a way to get back at him.” He had a comeback
           for everything I tried to say, and he kept going. 12

                               II.   Discussion

A.      Abusive Sexual Contact Specification

     The appellant asserts there is insufficient evidence to
sustain the abusive sexual contact conviction, and that the
military judge should have granted the requested mistake of fact
instruction for the specification.

(1)        Legal and Factual Sufficiency

     We review each case de novo for legal and factual
sufficiency. Art. 66(c), UCMJ; United States v. Washington, 57
M.J. 394, 399 (C.A.A.F. 2002). The test for legal sufficiency
is whether, considering the evidence admitted at trial in the
light most favorable to the prosecution, a reasonable factfinder
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)). The
test for factual sufficiency is “whether, after weighing the
evidence in the record of trial and making allowances for not

9
     Id. at 403.
10
     Id.
11
     Id.
12
     Id. at 404.
                                       4
having personally observed the witnesses, [this court is]
convinced of the accused’s guilt beyond a reasonable doubt.”
Id. at 325. We may judge the credibility of witnesses,
determine controverted questions of fact, and substitute our
judgment for that of the fact finder. Art 66(c), UCMJ; United
States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990).

     H.C. testified the appellant committed a sexual contact
upon her in that he touched her buttocks with his hand in a
rubbing, caressing fashion until she stopped him, and that the
touching was nonconsensual, causing bodily harm. There is no
evidence H.C. consented. In his appellate brief, the appellant
suggests he held an honest belief about H.C.’s desire to engage
in sexual contact based on her traveling from out of state to
visit him for a few weeks, staying in his barracks room, going
to the movies and watching TV in his room with him, and laying
on the same bed with him when he touched her thigh and
buttocks. 13 We are not persuaded such a belief, if honestly
held, was objectively reasonable when viewed in the context of
their long, close, siblings-like relationship. The appellant
and H.C. had no previous romantic interactions, she slept on an
air mattress while he slept in his barracks room bed, and she
referred to him as her brother. Rather than flirting by being
on the bed, H.C. indicated she was watching Olympic coverage
there and did not move after the appellant lay behind her only
because of space constraints in the room. As a reasonable
factfinder could have found the touching was done with the
intent to arouse or gratify sexual desire, the conviction for
abusive sexual contact is legally sufficient. Weighing H.C.’s
testimony, and making allowances for not having observed the
witness, we are also convinced beyond a reasonable doubt that
the abusive sexual contact conviction is factually sufficient.

(2)     Mistake of Fact Instruction

      Whether the members were properly instructed is a question
of law we review de novo. United States v. Hibbard, 58 M.J. 71,
75 (C.A.A.F. 2003). A military judge is required to instruct
the members on affirmative defenses “in issue.” United States
v. Lewis, 65 M.J. 85, 87 (C.A.A.F. 2007) (citing RULE FOR COURTS-
MARTIAL 902(e)(3), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2005 ed.)).
“A matter is considered ‘in issue’ when ‘some evidence, without
regard to its source or credibility, has been admitted upon
which members might rely if they choose.’” Id. (quoting R.C.M.
920(e), Discussion. An accused can establish a mistake of fact

13
     Appellant’s Brief at 15-16.
                                      5
defense where he can show that he had a reasonable and honest,
if mistaken, belief that the victim consented. R.C.M. 916(j).
If a military judge errs in not instructing on an affirmative
defense, we then look to “whether it is clear beyond a
reasonable doubt that a rational jury would have found the
defendant guilty absent the error?” Neder v. United States, 527
U.S. 1, 18 (1999); see also United States v. DiPaola, 67 M.J. 98
(C.A.A.F. 2008).

     We agree with the military judge’s determination that none
of the evidence cited by the appellant indicates he held a
mistaken belief about H.C.’s desire to engage in sexual
activity. However, even if some evidence raised the affirmative
defense and the military judge erred by not providing a mistake
of fact instruction, we are convinced the error was harmless
beyond a reasonable doubt. Since the bodily harm element
required the members to determine whether H.C. consented to the
touching, they were instructed that “[l]ack of consent may be
inferred based on the circumstances. All the surrounding
circumstances are to be considered in determining whether a
person gave consent or whether a person did not resist or cease
to resist only because of another person’s actions.” 14 Although
the appellant argued in summation that H.C.’s conduct
demonstrated consent and that the appellant’s actions were not
criminal, 15 the members convicted. Even if provided a mistake of
fact instruction, we conclude beyond a reasonable doubt that
rational members would have found the appellant guilty of this
offense.

B.     Sexual Assault Specifications

     The appellant’s two sexual assault specifications differed
only in that the first alleged H.C. “was incapable of consenting
to the sexual act due to impairment by alcohol, and that
condition was known or reasonable [sic] should have been known
by the accused,” and the second alleged the sexual act occurred
“when the accused knew or reasonably should have known that
[H.C.] was asleep, unconscious, or otherwise unaware of the
sexual act.” There was no allegation of committing a sexual act
by causing bodily harm. As the Government argued the two
specifications were separate crimes occurring before and after
H.C. awoke during the sexual encounter, the military judge did
not merge them for findings. But after the members announced

14
     Record at 649.
15
     Id. 676-77.


                                   6
guilty findings for both, the military judge instructed them to
consider the two specifications as one offense for purposes of
determining an appropriate sentence. 16 In AOE III, the appellant
contends the record does not support the victim’s incapability
to consent due to alcohol impairment and that her condition was
known or reasonably should have been known by the appellant.
Our finding in the appellant’s favor renders AOE IV moot.

(1)     Legal and Factual Sufficiency

     The record demonstrates, and as the appellant concedes in
his brief, H.C. was intoxicated and asleep before the appellant
began sexual intercourse. 17 It is unclear how many hours elapsed
between the appellant carrying H.C. to bed and assaulting her.
But H.C.’s actions upon waking indicate she was then capable of
consenting despite the earlier alcohol consumption. While
trying to “reason with” the appellant, she articulated her clear
understanding of what was happening, that she thought it was
wrong, and that she did not consent. While his actions may have
constituted a different sort of sexual assault, based on this
record and these facts we are not convinced beyond a reasonable
doubt of the appellant’s guilt for Specification 1. Thus we
will set aside the finding and dismiss that specification.

(2)     Sentence Reassessment

     We reassess the sentence in accordance with the principles
set forth in United States v. Moffeit, 63 M.J. 40 (C.A.A.F.
2006), United States v. Cook, 48 M.J. 434, 438, (C.A.A.F. 1998),
and United States v. Sales, 22 M.J. 305, 307-09 (C.M.A. 1986).
Although a “‘dramatic change in the penalty landscape’
gravitates away from the ability to reassess” a sentence, United
States v. Buber, 62 M.J. 476, 479 (C.A.A.F. 2006) (quoting
United States v. Riley, 58 M.J. 305, 312 (C.A.A.F. 2003)), there
is no such change here. The maximum punishment 18 remains the
same. Testimony regarding H.C.’s interaction with the appellant
once she awoke was proper sentencing evidence in aggravation
under R.C.M. 1001(b). Thus we are confident the members would
have imposed, and the CA would have approved, the previously
adjudged sentence in this case.

16
     Id. at 789.
17
     Appellant’s Brief at 19.
18
  When the military judge merged the sexual assault specifications for
sentencing, the maximum punishment was 37 years’ confinement, total
forfeitures, a fine, reduction to pay grade E-1, and dishonorable discharge.
                                      7
C.     Member Selection and Discovery

     The final two AOEs     argue the CA systematically excluded all
potential members other     than those in pay grades E-5 through E-9
and O-1 through O-6 via     the CA’s nomination process instruction,
and that the Government     failed to disclose the instruction as
required.

(1)     Panel Member Selection

     We review the proper selection of a court-martial panel de
novo. United States v. Kirkland, 53 M.J. 22, 24 (C.A.A.F. 2000)
(citing United States v. McClain, 22 M.J. 124 (C.M.A. 1986)).
We look at three primary factors to determine whether an
impermissible member selection has taken place: (1) Improper
motive in packing a member pool; (2) Systematic exclusion of
potential members based on rank or other impermissible variable;
and, (3) Good faith attempts to be inclusive and open the court-
martial process to the entirety of the military community.
United States v. Dowty, 60 M.J. 163, 171 (C.A.A.F. 2004). If
either of the first two criteria is present, the process is
impermissible. Id. These criteria are not only considered in
the actual panel selection process, but also when presenting
nominations to the CA. United States v. Roland, 50 M.J. 66, 69
(C.A.A.F. 1999). In a case of systematic exclusion of members
by rank, the defense must establish the improper exclusion.
Kirkland, 53 M.J. at 24. Once improper exclusion is
established, the Government must “demonstrate that the error did
not ‘materially prejudice the substantial rights of the
accused.’” Dowty, 60 M.J. at 173 (quoting Art. 59(a), UCMJ).

     The standing court-martial panel to which the appellant’s
charges were referred is dated 9 January 2014. 19 On 28 February
2014, the CA issued Commander, Navy Region Mid-Atlantic
Instruction 5813.1B (hereafter “instruction”) concerning courts-
martial member nominations. It requires nomination quotas from
listed commands for prospective members in specified pay grades
between O-6 and E-5, and otherwise provides, “In addition to the
nomination requirements listed in enclosure (1), commands are
encouraged to nominate members of any pay grade who possess the
qualifications listed in [Article 25, UCMJ] and paragraph 4
above.” 20 The CA detailed the appellant’s members on 25 June

19
  General Court-Martial Convening Order (GCMCO) 1-14 detailed five O-6s, one
O-5, three O-4s and an O-3 to the standing panel.
20
     Instruction at 5.


                                      8
2014. 21 The appellant’s voir dire questions 22 included three
about member selection. 23 The military judge granted the
appellant’s single challenge for cause. The Government also
successfully challenged one member for cause, with defense
concurrence, and exercised the only preemptory challenge.

     The appellant argues “Warrant Officers and Chief Warrant
Officers . . . precisely the types of members well-suited under
the Article 25, UCMJ, criteria based on their lengthy careers
and prior enlisted service . . . on the face of the instruction,
based on rank alone . . . were systematically excluded from the
nomination process.” 24 We disagree. First, beyond the
instruction encouraging member nominations from any pay grade
meeting the Article 25 criteria, enclosure (1) of the
instruction specifically requires nineteen of the thirty-nine
identified commands to submit nominations from members in pay
grades “O-3 or below.” Second, the Navy has only Chief Warrant
Officers, 25 and those not in the Reserves are commissioned by the
President like officers in pay grades O-1 through O-3. 26
Finally, the CA detailed a Chief Warrant Officer-2 to an
unrelated court-martial three months before detailing the
appellant’s members. 27 Thus warrant officer ranks may reasonably
be considered within “O-3 or below,” and the CA and at least one
nominating command have interpreted the instruction as allowing
warrant officer nominations.

     But even if we agreed the CA improperly excluded any
potential members, we would find no material prejudice. In

21
  GCMCO 1J-14 relieved each standing panel member and detailed one O-4, three
O-3s, three E-8s, one E-7, and two E-6s.
22
     Appellate Exhibit XXII.
23
  6. Rear Admiral Smith, Commander, Navy Region Mid-Atlantic, is the
convening authority in this case. Does any member believe that RADM Smith
expects a particular outcome in this case? 7. Did any member volunteer to
serve on this court-martial? 8. Did any member receive an email asking them
to serve on a court-martial? Id.
24
     Appellant’s Brief at 27.
25
  See Chief of Naval Operations Instruction 1420.1B (14 Dec 2009) at Ch. 7,
¶ 11.a, p. 7-14. Sailors selected for the chief warrant officer program are
appointed to CWO2, except E-8s with at least two years’ time in grade and E-
9s, who are appointed to CWO3 upon completion of the chief warrant officer
program.
26
     10 U.S.C. § 571(b) and 10 U.S.C. § 531(a).
27
     AE L at 1.
                                         9
reviewing this case, including affidavits from the CA and his
staff judge advocate, we find: (1) no evidence the instruction
was issued with an improper motive; (2) no evidence the CA
detailed the members assigned to the appellant’s court-martial
with an improper motive; (3) the CA was a general court-martial
convening authority; (4) the CA was properly advised of his
Article 25 responsibilities and knew he could select any member
within his region’s claimancy, not just those nominated; (5) the
CA personally chose the court members from a pool of eligible
candidates; (6) the CA was specifically aware he could select
members in warrant officer paygrades; 28 and (7) all court members
met the criteria in Article 25, UCMJ. We also find no remaining
unresolved appearance of impropriety. See Kirkland, 53 M.J. at
25; see also United States v. Ward, 74 M.J. 225, 228 (C.A.A.F.
2015). Under these circumstances, we are convinced the
appellant’s case was heard by a fair and impartial panel, and
that any error in the member selection process was harmless.

(2)   Discovery

     Article 46, UCMJ, grants a military accused the “equal
opportunity to obtain witnesses and other evidence in accordance
with such regulations as the President may prescribe.” Upon
request, an accused is permitted to inspect “papers . . . within
the possession, custody, or control of military authorities . .
. which are material to the preparation of the defense[.]”
R.C.M. 701(a)(2)(A). When assessing potential discovery
violations, this court must determine whether the evidence at
issue was subject to discovery and, if so, what effect failure
to disclose had on the appellant’s trial. United States v.
Roberts, 59 M.J. 323, 325 (C.A.A.F. 2004).

     When the appellant either did not make a discovery request
or made only a general discovery request, the Government must
prove the error was harmless. When the appellant made a
specific request for undisclosed information, the Government
must show the error was harmless beyond a reasonable doubt.
Roberts, 59 M.J. at 327. Even where nondisclosure of requested
documents is error, a TDC’s failure to request a continuance and
move to compel the documents can forfeit the issue absent plain

28
  “Commands within [Navy Region Mid-Atlantic] could nominate service members
of any paygrade at any time, including warrant officers, if they were
qualified by reason of age, education, training, experience, length of
service and judicial temperament in accordance with Article 25.”
Government’s Motion to Attach filed on 15 May 2015, Vice Admiral D. R. Smith
affidavit of 1 May 2015.


                                     10
error. See United States v. Avery, 52 M.J. 496, 498-99
(C.A.A.F. 2000).

     The trial case management order (CMO) in this case required
discovery requests by 5 May 2014, and responses by 12 May 2014. 29
At the 12 May 2014 arraignment, a week later than originally
requested, the military judge noted the discovery dates had been
ordered during a previous conference off the record. 30 The
appellant’s trial defense counsel (TDC) indicated, “I’ve not
gotten discovery in by May 5th. We did the CMO on Friday. I
will work that out. I don’t expect there to be any issues.” 31 A
defense motion to compel witness production 32 was filed and later
withdrawn 33, but there was no motion to compel discovery.

     A defense discovery request dated 16 May 2014 seeks
“[c]opies of all written materials considered by the CA in
selecting the members detailed to the court-martial, including
all materials pertaining to persons who were not selected as
members . . . .” 34 The appellant’s raw assertion that the
Government never provided TDC the instruction 35 leaves several
discovery aspects unaddressed: why was the defense request not
submitted, if it was at all, by the court ordered milestone
date; did the Government provide any response; why was there no
motion to compel discovery; and whether the TDC otherwise got
the instruction as a published item on the CA’s command website 36
after having litigated a similar issue in another case at a
post-trial Article 39a, UCMJ, session? 37

29
     AE I.
30
     Record at 7-8.
31
     Id. at 9.
32
     AE VII.
33
     Record at 54.
34
     Appellant’s Brief, Appendix 2 at 5.
35
     Id. at 30.
36
  “This instruction, along with every other instruction promulgated by CNRMA,
is available online....Every region has its own page on the G2
system....Anyone with a Common Access Card can access the G2 system.” CDR
S.J. Gawronski affidavit of 4 May 2015.
37
  Representing AT1 R.L. on 11 March 2014, the appellant’s TDC participated in
a post-trial Article 39(a) session about Commander, Naval Air Force Atlantic
Instruction 5813.1H, an instruction also addressed recently in Ward, 74 M.J.
at 225. AT1 R.L.’s trial concluded 18 December 2013. On 6 February 2014 the
                                           11
     Assuming the issue is not forfeited and the request was
specific enough to trigger a heightened proof requirement, 38 for
the reasons stated supra, we find that despite the discovery
violation a fair and impartial panel tried the appellant, and
any discovery error related to the instruction was harmless
beyond a reasonable doubt.

                             III.   Conclusion

     The finding of guilty to Specification 1 of Charge I,
sexual assault, is set aside. That specification is dismissed
with prejudice. The remaining findings of guilty and sentence
are affirmed.

      Senior Judge FISCHER and Judge PALMER concur.

                                       For the Court



                                       R.H. TROIDL
                                       Clerk of Court




TDC brought a motion to set aside AT1 R.L.’s guilty finding after learning of
COMNAVAIRLANTINST 5813.1H on or about 7 January 2014. In that case, as here,
the defense requested items considered by the CA regarding member selection,
and the prosecution did not provide the CA’s member nomination instruction.
38
  Whether the discovery request was specific or general “depends upon whether
the discovery request pointed with any particularity to the evidence
desired.” United States v. Simmons, 38 M.J. 376, 385 (C.M.A. 1993); see also
United States v. Agurs, 427 U.S. 97, 106 (1976) and United States v.
Eshalomi, 23 M.J. 12, 22 (C.M.A. 1986).
                                     12
