       This opinion is subject to revision before publication



        UNITED STATES COURT OF APPEALS
                  FOR THE    ARMED FORCES
                         _______________

                       UNITED STATES
                           Appellee
                                v.
               Tyler WASHINGTON, Private
                United States Army, Appellant
                          No. 19-0252
                    Crim. App. No. 20170329
        Argued January 15, 2020—Decided May 29, 2020
                Military Judge: Deidra J. Fleming
   For Appellant: Captain Zachary A. Gray (argued); Lieuten-
   ant Colonel Tiffany D. Pond, Major Jack D. Einhorn, Ma-
   jor Benjamin A. Accinelli, and Captain Catherine E. God-
   frey (on brief); Lieutenant Colonel Todd W. Simpson.
   For Appellee: Captain Christopher T. Leighton (argued);
   Colonel Steven P. Haight, Lieutenant Colonel Wayne H.
   Williams, and Major Hannah E. Kaufman (on brief).
   Judge MAGGS delivered the opinion of the Court, in
   which Judges RYAN, OHLSON (except for Part II.B.),
   and SPARKS, joined. Judge OHLSON filed a separate
   opinion, concurring in part and dissenting in part. Chief
   Judge STUCKY filed a separate dissenting opinion.
                       _______________

   Judge MAGGS delivered the opinion of the Court.
    A general court-martial with enlisted members found
Appellant guilty, contrary to his pleas, of two specifications
of abusive sexual contact in violation of Article 120, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 920 (2012).
The military judge merged the two specifications for sen-
tencing. The court-martial sentenced Appellant to confine-
ment for thirty days and a bad-conduct discharge. The con-
vening authority approved the sentence as adjudged. The
United States Army Court of Criminal Appeals (ACCA) af-
firmed the findings and sentence in a summary order.
   We granted review to determine whether the military
judge abused her discretion by permitting a member of Ap-
          United States v. Washington, No. 19-0252/AR
                      Opinion of the Court

pellant’s unit to testify about training that Appellant re-
ceived as part of the Army’s Sexual Harassment/Assault Re-
sponse and Prevention (SHARP) program.1 We resolve this
issue by assuming, without deciding, that the military judge
erred in admitting the evidence. We then consider whether
the assumed error harmed Appellant based on the factors
that we have used in United States v. Kohlbek, 78 M.J. 326,
334 (C.A.A.F. 2019), and other cases for assessing whether
the erroneous admission of evidence is prejudicial. We con-
clude that any error in this case did not cause material prej-
udice to the substantial rights of Appellant.
                         I. Background
                      A. The Sexual Contacts
   On September 17, 2016, after dinner at a restaurant with
other soldiers, Appellant and Private First Class (PFC) AF
returned to PFC AF’s barracks bedroom. They then began to
engage in consensual activity, including kissing and remov-
ing some items of clothing. But when Appellant became
more aggressive, PFC AF raised her arms against her chest
and stopped kissing Appellant. PFC AF told Appellant “stop”
and “I am uncomfortable with that” three times. Appellant,
however, did not stop. He covered PFC AF’s mouth with his
hand, began kissing her breasts and stomach, and moved his
head down between her legs, kissing her genital region over
her pants.
    Specialist (SPC) Brandon Thomson, who was sitting in
an adjacent room, heard Appellant say something like
“[s]hut up[;] [s]top talking,” or “[s]hush; don’t say anything.”
Concerned, SPC Thomson knocked on the bedroom door.
Appellant answered the door while pulling up his pants. Ap-
pellant asserted that “nothing bad” had happened. SPC
Thomson noticed PFC AF reach for her phone as she sat on
the bed and then heard an alert from his phone. He left the
door, checked his phone, and found text messages from PFC
AF saying “Help” and “I told him to stop and he didn’t.” SPC


   1  The granted issue is: “Whether the military judge abused her
discretion by permitting the unit’s SHARP representative to testi-
fy that ‘when a person says “no” it means stop, walk away.’ ”




                                2
          United States v. Washington, No. 19-0252/AR
                      Opinion of the Court

Thomson returned to the room and found PFC AF crying.
Appellant again denied that anything improper had oc-
curred. SPC Thompson and PFC AF then drove Appellant
home.
    Two hours later, PFC AF formally reported the assault.
At the advice of the Army Criminal Investigative Service
(CID), PFC AF sent Appellant a text message asking Appel-
lant why he did not stop when she asked him to stop. Appel-
lant apologized and responded with comments like “I
thought the [sic] was one of those like keep going moment
[sic] sorry” and “I thought that was one of those moments
when the person says stop but they want you to keep going.
Been with people like that before sorry.”
                           B. The Trial
    Appellant was charged with two specifications of abusive
sexual contact. The Government called PFC AF, who testi-
fied as to most of the foregoing facts. Defense counsel, in
cross-examining PFC AF, asked questions suggesting that
Appellant might have made a mistake of fact about whether
she had consented to the sexual contact. For example, de-
fense counsel inquired repeatedly about how PFC AF did or
did not manifest her lack of consent during the encounter.
Referring to Appellant’s knowledge after the encounter was
over, defense counsel specifically asked PFC AF: “Private
Washington [i.e., Appellant] did not know anything was
wrong?” PFC AF answered that he did not.
    In a subsequent Article 39(a), UCMJ, 10 U.S.C. § 839(a),
session, trial counsel informed the military judge that the
Government wished to rebut trial defense counsel’s sugges-
tion that Appellant had made a mistake of fact. Trial coun-
sel indicated an intent to call Sergeant First Class (SFC)
Wilfredo Rivera to testify about SHARP training that Appel-
lant had received six days before his encounter with PFC
AF. Trial defense counsel confirmed the defense’s intent to
request a mistake of fact instruction but objected to SFC Ri-
vera’s testimony.2 Trial defense counsel argued that the tes-

   2  Trial defense counsel had already objected to SFC Rivera’s
testimony in a pretrial motion in limine, arguing that any refer-
ences to SHARP training should be excluded because such testi-



                               3
          United States v. Washington, No. 19-0252/AR
                      Opinion of the Court

timony was not relevant and that it was likely to confuse the
members because they might “transfer that the SHARP
[training] is the standard” for consent. The military judge
overruled Appellant’s objection, finding the proffered evi-
dence relevant under Military Rule of Evidence (M.R.E.) 401
and not excludable under M.R.E. 403. The military judge
promised to give curative instructions that would address
trial defense counsel’s concerns about the members mistak-
ing the SHARP training for the legal standard for consent,
including “instructions about reasonable doubt and mistake
of fact and the elements.” Trial defense counsel did not ar-
gue, and the military judge did not consider, the possibility
that admission of the evidence regarding SHARP policies
might violate the prohibition in Article 37, UCMJ, 10 U.S.C.
§ 837, against unlawfully attempting to influence a court-
martial.
    SFC Rivera testified that Appellant participated in a
company-level training class on the issue of consent during
the week preceding the assault. The training included a
slide on the topic of withdrawn consent and guidance on
what to do when a person says “no” during a sexual encoun-
ter. SFC Rivera testified about the slide, indicating that the
takeaway was that when one party says “no,” it means the
other should “stop, walk away.”
    SFC Rivera testified that Appellant’s unit had been
“smoked” (Army slang for being required to do intense phys-
ical training) for three hours immediately prior to the
SHARP training. He further testified that the unit leader-
ship made sure that the unit members stayed awake during
training and that at least some of the unit members partici-
pated in the training. SFC Rivera testified that he asked
Appellant to read aloud the text of one of the slides in the

mony was not relevant, was likely to confuse the members, and
would waste the court’s time. The Government responded that the
motion was not ripe because it did not plan to introduce SFC Rive-
ra’s testimony unless the defense triggered it at trial by raising
the defense of mistake of fact as to consent. The military judge
declined to rule on the issue until it arose at trial, where she
would be “in a much better position to know what the actual facts
are.”




                                4
          United States v. Washington, No. 19-0252/AR
                      Opinion of the Court

presentation. The record, however, contains no additional
testimony about whether Appellant paid attention to the
training, understood its content, or later remembered any of
it. SFC Rivera, who led the session, testified that he could
not remember the scenarios that were discussed.
    During an Article 39(a), UCMJ, session after the close of
the evidence on findings, the military judge informed coun-
sel that she would read the standard instructions for the de-
fense of mistake of fact as to consent. These instructions did
not specifically mention SFC Rivera, his testimony, or
SHARP policy. When prompted for any requests for addi-
tional or tailored instructions, the defense responded,
“[n]one for the defense, Your Honor.”
    During closing arguments, defense counsel stressed that
the “issue at hand is whether Private Washington [i.e., Ap-
pellant] had a mistake of fact as to consent.” Defense counsel
drew the members’ attention to Appellant’s youth and inex-
perience and argued that Appellant was mistaken because
PFC AF did little to overtly manifest her lack of consent. On
rebuttal, trial counsel addressed Appellant’s mistake of fact
defense by advising the members to “go back and look at the
judge’s instruction.” Trial counsel also reminded the panel
that Appellant had recently received training “about the im-
portance of consent, about the importance of listening to
other people if they say ‘no’ or ‘stop’ or express discomfort in
a sexual situation.” Trial counsel further argued that “any
sort of mistaken belief was not honest and was not reasona-
ble.” Trial counsel did not cite or quote any SHARP stand-
ards.
                        II. Discussion
    Appellant argues that the military judge abused her dis-
cretion in admitting SFC Rivera’s testimony about the
SHARP training. He asserts that the evidence should have
been excluded under M.R.E. 401 because it was irrelevant,
under M.R.E. 403 because it was confusing, and under Arti-
cle 37, UCMJ, because it was a form of unlawful command
influence. We do not reach the merits of Appellant’s conten-
tions. Even if we assume (without deciding) that the military
judge abused her discretion in admitting SFC Rivera’s tes-
timony, the error was harmless in this case.



                               5
          United States v. Washington, No. 19-0252/AR
                      Opinion of the Court

                           A. Prejudice
    Under Article 59(a), UCMJ, 10 U.S.C. § 859(a), and
M.R.E. 103(a), the Government has the burden to persuade
us that the erroneous admission of evidence did not materi-
ally prejudice the substantial rights of Appellant. United
States v. Flesher, 73 M.J. 303, 318 (C.A.A.F. 2014). “For non-
constitutional evidentiary errors, the test for prejudice ‘is
whether the error had a substantial influence on the find-
ings.’ ” Kohlbek, 78 M.J. at 334 (quoting United States v.
Fetrow, 76 M.J. 181, 187 (C.A.A.F. 2017)). “In conducting the
prejudice analysis, this Court weighs: (1) the strength of the
Government’s case, (2) the strength of the defense case, (3)
the materiality of the evidence in question, and (4) the quali-
ty of the evidence in question.” Id. (citations omitted) (inter-
nal quotation marks omitted).
           1. The Strength of the Government’s Case
    The Government’s case was strong. The Government’s
principal witness was PFC AF. In her testimony, PFC AF
described the events of the evening in question and provided
evidence establishing the elements of the offenses of which
Appellant was found guilty. Her testimony also countered
the possibility that Appellant might have made an honest
and reasonable mistake about whether she had consented.
She testified that she told Appellant to “stop” several times
and that she informed him, “I’m uncomfortable with this.”
PFC AF also testified that Appellant covered her mouth
with his hand when she objected to his conduct. Her memory
of the incident was not at issue because she reported the in-
cident as soon as it happened.
    SPC Thomson provided corroborating evidence. He de-
scribed what he heard outside the room in which the inci-
dent occurred and what he saw the two times that he went
to the door of the room. He also testified about the distressed
messages that he received just after the incident. Although
he did not see the conduct at issue, he observed the parties’
demeanor immediately afterward. In addition, the Govern-
ment also introduced Appellant’s own text messages to PFC
AF. In these text messages, Appellant appeared to agree
with PFC AF’s description of what happened. In one of




                               6
         United States v. Washington, No. 19-0252/AR
                     Opinion of the Court

them, Appellant admitted that PFC AF told him to stop but
he kept going.
              2. The Strength of the Defense Case
    The defense case in comparison was much weaker. Ap-
pellant did not call witnesses. The defense strategy instead
was to use cross-examination to impeach PFC AF and SPC
Thomson and to raise the issue of mistake of fact. Trial de-
fense counsel was diligent in this effort. On cross-
examination, PFC AF agreed that Appellant had not pinned
her down. She agreed that before Appellant had put her
hand over her mouth, she had informed him that the reason
she did not want oral sex was that she did not want to be
loud. She further agreed that she did not close her legs and
that Appellant did not take off her pants, put his hands in
her pants, or reach for her belt or panties. SPC Thomson
further testified that Appellant and PFC AF were alone to-
gether for twenty to thirty minutes before he heard Appel-
lant tell PFC AF to “[s]hut up.” Appellant argues that this
evidence would have been strong enough, absent the SHARP
testimony, to raise reasonable doubt about his guilt. The
court-martial, he asserts, might have concluded that PFC
AF agreed to engage in some sexual contact but merely ob-
jected to Appellant’s desire for oral sex, which she agrees he
did not pursue after she objected.
    In our view, however, the cross-examination did not ap-
preciably weaken the Government’s proof that Appellant
had committed the offenses at issue and that any mistaken
belief as to consent would not have been reasonable. Putting
evidence of the SHARP training completely aside, PFC AF’s
testimony that she repeatedly told Appellant to stop and
that he kept going, which was corroborated by his own text
messages, ruled out the possibility that Appellant had an
honest and reasonable mistake of fact about whether she
consented to further sexual conduct. The first two factors of
the prejudice analysis thus favor the Government.
               3. The Materiality and Quality of
                   the Evidence in Question
   After considering the strength of the Government’s case
and the strength of the defense case, the final two factors of
the prejudice analysis are the materiality and quality of the


                              7
          United States v. Washington, No. 19-0252/AR
                      Opinion of the Court

evidence in question. Kohlbek, 78 M.J. at 334. In examining
these factors, we essentially are assessing how much the er-
roneously admitted evidence may have affected the court-
martial. In doing so in the instant case, we conclude that
Appellant did not suffer material prejudice.
    When assessing the materiality and quality of the evi-
dence, this Court considers the particular factual circum-
stances of each case. For example, we have previously con-
sidered such things as the extent to which the evidence
contributed to the government’s case, see, e.g., United States
v. Hursey, 55 M.J. 34, 36 (C.A.A.F. 2001) (concluding that an
error was harmless in part because the record was “replete
with admissible evidence” that was similar); the extent to
which instructions to the panel may have mitigated the er-
ror, see, e.g., United States v. Baumann, 54 M.J. 100, 105
(C.A.A.F. 2000) (concluding that an error was harmless in
part because the military judge gave “extensive instructions
on the proper use” of the evidence); see also United States v.
Eslinger, 70 M.J. 193, 196–97 (C.A.A.F. 2011); the extent to
which the government referred to the evidence in argument,
see, e.g., United States v. Brooks, 26 M.J. 28, 29 (C.M.A.
1988) (concluding that an error was harmless in part be-
cause the “trial counsel did not refer to the objectionable ev-
idence in his argument”); and the extent to which the mem-
bers could weigh the evidence using their own layperson
knowledge, see, e.g., United States v. Walker, 42 M.J. 67, 74
(C.A.A.F. 1995) (concluding that an error was harmless in
part because the Court was “confident that the members—
using their common sense and everyday experiences—placed
this evidence in a proper perspective and did not afford it
substantial weight”). While not exhaustive, this Court has
found these and similar considerations useful in evaluating
the final two Kohlbek factors.
    Weighing the relevant factual circumstances in the in-
stant case, we conclude that Appellant was not prejudiced by
the SHARP testimony even if the military judge erred in
admitting it at trial. In reaching this conclusion, we note the
following points: the evidence contributed little to the Gov-
ernment’s case because, as even Appellant argues, the train-
ing did not directly concern the defense of mistake of fact as
to consent; the military judge correctly instructed the mem-


                              8
          United States v. Washington, No. 19-0252/AR
                      Opinion of the Court

bers on the law; the trial counsel did not unduly exploit the
questionable evidence during his closing arguments but in-
stead tailored his arguments in accordance with the military
judge’s instructions on the law; and we are confident that
the panel placed the evidence in its proper perspective and
did not give it undue weight.
     In regard to this last point, several facts are key to our
conclusion. First, Appellant and his unit received the
SHARP training after being “smoked” for several hours,
bringing into question the level of alertness of Appellant.
Second, SFC Rivera testified that the SHARP presentation
included seventy slides and that only one of those slides con-
tained any information about consent, bringing into question
the degree to which this information would have stood out in
Appellant’s mind. And third, the Government presented no
evidence to the members at trial addressing these issues,
i.e., indicating whether Appellant paid attention during the
SHARP training or retained any of the information present-
ed in that one single slide. In fact, SFC Rivera, the SHARP
trainer, conceded on the witness stand that even he could
not recall what types of scenarios he discussed when he ex-
plained consent to Appellant’s unit. Upon learning that the
instructor himself could not remember the content of the
SHARP presentation, the members were even less likely to
conclude that Appellant did so.
    Accordingly, considering the strength of the Govern-
ment’s case, the strength of the defense case, and the mate-
riality and quality of the evidence, we conclude that the
Government has met its burden of persuading us that even
if the admission of the SHARP training evidence was error,
that error did not materially prejudice the substantial rights
of Appellant.
                    B. Additional Discussion
   In deciding this case, the Court assumes that the mili-
tary judge erred in admitting SFC Rivera’s testimony about
the SHARP training under M.R.E. 401. But this does not
mean that the Court also assumes that everything Appellant
has argued with respect to M.R.E. 403 and Article 37,
UCMJ, is true.




                              9
         United States v. Washington, No. 19-0252/AR
                     Opinion of the Court

    M.R.E. 403 provides in relevant part that the “military
judge may exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . confusing the
issues.” In addition to arguing that the evidence was not rel-
evant as required by M.R.E. 401, Appellant also argues that
the military judge should have excluded the SHARP testi-
mony because it likely confused the members about the legal
standard and was thus prejudicial even if relevant. But
there was little danger that the testimony would confuse the
members in this way. No one suggested at trial that the
members should decide the case according to what was said
at the SHARP training. In addition, the members agreed in
voir dire that they would follow the military judge’s instruc-
tions on the law, the military judge properly instructed the
members on the law, and counsel for both sides made argu-
ments in accordance with the military judge’s instructions
on the law. Cf. United States v. Ellerbrock, 70 M.J. 314, 320
(C.A.A.F. 2011) (“Confusion of the issues was also unlikely,
given that the theory of relevance was relatively straight-
forward. And with proper instructions from the military
judge on how the members could use this evidence [of a prior
affair], there is little concern that the members would have
been misled.”).
    Appellant also argues that SFC Rivera’s testimony
should have been excluded because, under the circumstanc-
es, its admission constituted unlawful command influence in
violation of Article 37, UCMJ. At the time of the offense and
trial, Article 37(a), UCMJ, provided in relevant part that
“[n]o person subject to this chapter may attempt to coerce or,
by any unauthorized means, influence the action of a court-
martial.” 10 U.S.C. § 837(a) (2018). A party alleging actual
unlawful command influence “must (1) show facts which, if
true, constitute unlawful command influence; (2) show that
the proceedings were unfair; and (3) show that unlawful
command influence was the cause of the unfairness.” United
States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999). The
threshold for this showing requires more than mere allega-
tion or speculation. Id. Appellant contends that introducing
evidence of the SHARP training violated this prohibition be-
cause the members may have believed that they should fol-
low the SHARP policies endorsed by the command rather



                             10
         United States v. Washington, No. 19-0252/AR
                     Opinion of the Court

than the legal rules provided by the military judge. This
Court has “condemned references to departmental or com-
mand policies made before members.” United States v.
Kropf, 39 M.J. 107, 109 (C.M.A. 1994). But while certainly
not a best practice, and one fraught with peril, such refer-
ences do not, without more, constitute unlawful command
influence, and Appellant has not demonstrated “some evi-
dence” of an Article 37, UCMJ, violation here. Biagase, 50
M.J. at 150 (citation omitted) (internal quotation marks
omitted). The SHARP training was not done for the purpose
of influencing the trial, no one argued at trial that the
SHARP training reflected the law, the military judge proper-
ly instructed the members, and the members agreed that
they could follow the military judge’s instructions. And for
the same reasons, Appellant has not made the showing re-
quired to establish apparent unlawful command influence—
that “an objective, disinterested observer, fully informed of
all the facts and circumstances, would harbor a significant
doubt about the fairness of the proceeding.” United States v.
Boyce, 76 M.J. 242, 249 (C.A.A.F. 2017) (citation omitted)
(internal quotation marks omitted).
                      III. Conclusion
   For the foregoing reasons, the judgment of the United
States Army Court of Criminal Appeals is affirmed.




                             11
          United States v. Washington, No. 19-0252/AR

   Judge OHLSON, concurring in part and dissenting in
part.
    I write separately only as to Part II.B. of the majority's
opinion. Simply stated, I believe the introduction of testimo-
ny or other evidence regarding the Army’s Sexual Harass-
ment/Assault Response and Prevention (SHARP) program
(and, of course, its analogues in the other military services)
poses an especially grave risk of injecting unlawful com-
mand influence into court-martial proceedings pertaining to
sexual assault offenses. See, e.g., United States v. Grady, 15
M.J. 275, 276 (C.M.A. 1983) (“We have long condemned any
references to departmental or command policies made before
members” which “in effect brings the commander into the
deliberation room.” (citations omitted)). Thus, under typical
circumstances—and using the proper de novo standard of
review, United States v. Barry, 78 M.J. 70, 77 (C.A.A.F.
2018) (citing United States v. Salyer, 72 M.J. 415, 423
(C.A.A.F. 2013))—I would be receptive to Appellate defense
counsel’s argument that unlawful command influence oc-
curred in this case because the SHARP representative testi-
fied before the panel members that he had instructed Appel-
lant about the command policy that “when a person says,
‘No’ [to sexual contact,] it means ‘stop, walk away.’ ”
    In the instant case, however, the key issue before this
Court is whether the military judge abused her discretion in
admitting the SHARP testimony. United States v. Washing-
ton, 79 M.J. 257 (C.A.A.F. 2019) (order granting review).
Under the attendant circumstances, I cannot conclude that
she did so based on the objection raised at the court-martial.
Specifically, trial defense counsel argued to the military
judge that “discussing SHARP in general is going to create
unfair prejudice and confusion for the members.” As can be
seen, trial defense counsel did not explicitly raise any con-
cern about unlawful command influence. Moreover, I do not
believe that an unlawful command influence argument is
inherent to defense counsel’s stated objection at trial. There-
fore, to put it plainly, the cogent argument Appellant now
makes before this Court is not the same argument he made
before the military judge. And, as we held in United States v.
Carpenter, our determination of whether a military judge
abused his or her discretion when admitting evidence at tri-
al “is properly based on a military judge’s disposition of the
         United States v. Washington, No. 19-0252/AR
   Judge OHLSON, concurring in part and dissenting in part

motion submitted to him or her—not on the motion
that appellate defense counsel now wishes trial defense
counsel had submitted.” 77 M.J. 285, 289 (C.A.A.F. 2018)
(citations omitted). Accordingly, I would hold in the instant
case that the military judge did not abuse her discretion by
failing to intuit a theory of inadmissibility that was not
squarely presented at trial, and by deciding the motion only
on the grounds actually presented to her.




                             2
          United States v. Washington, No. 19-0252/AR


   Chief Judge STUCKY, dissenting.

    The majority assumes, correctly, that the Army’s Sexual
Harassment/Assault Response and Prevention (SHARP)
program’s training testimony was irrelevant under Military
Rule of Evidence (M.R.E.) 401. Nevertheless, the majority
holds Appellant was not prejudiced by its admission and
thus affirms his conviction. I agree that the evidence was
irrelevant and inadmissible, but I do not agree that the Gov-
ernment has met its burden to show that the erroneous ad-
mission of the testimony did not prejudice Appellant, and so
I respectfully dissent.
    In its examination of the final Kohlbek factors, United
States v. Kohlbek, 78 M.J. 326, 334 (C.A.A.F. 2019), the ma-
jority misapprehends the danger of irrelevant evidence and
minimizes the errors of the military judge. I am not con-
vinced the members realized the irrelevance of the evidence
on their own and discounted the testimony.
   First, far from being innocent, the irrelevance of the
SHARP testimony exacerbated its potential prejudice. Irrel-
evant evidence can be highly prejudicial when it invites the
members to base their findings on the wrong information.
That is the danger here. While the majority admits that the
SHARP training does not concern whether Appellant’s mis-
take was reasonable, the Government introduced the evi-
dence for precisely that purpose. In closing, trial counsel ar-
gued that the members should consider the training
“number one as to whether [Appellant’s] mistake was rea-
sonable.” This was trial counsel’s primary argument against
the mistake of fact defense. The fact that it was irrelevant to
the mistake of fact, yet so closely related to it, is why it is so
prejudicial.
    Second, the military judge gave the standard mistake of
fact instruction, but, despite a promise to the contrary, did
not instruct the members that SHARP was not the legal
standard for consent, or how they should consider the
SHARP testimony in determining the reasonableness of any
mistake by Appellant as to consent. By allowing the testi-
mony, and not clarifying it, she was implicitly telling the
members that SHARP training fell within the “education”
that she instructed them to consider when evaluating the
         United States v. Washington, No. 19-0252/AR
              Chief Judge STUCKY, dissenting.

mistake of fact. The majority assumes SHARP was not rele-
vant training, but nonetheless states that the military
judge’s instructions were correct. Although the instruction
was a technically correct description of the mistake of fact
defense in general, the failure of the military judge to place
the SHARP training evidence in perspective rendered any
possible benefit to Appellant nugatory.
    Finally, considering the above, I am not convinced the
members, on their own, realized that the SHARP training
was irrelevant as to whether Appellant’s supposed mistake
of fact was reasonable. Trial counsel encouraged, and the
military judge allowed, the members to consider evidence
irrelevant to Appellant’s alleged mistake. Since I do not be-
lieve the Government met its burden to show that the intro-
duction of the SHARP testimony was harmless, I respectful-
ly dissent.




                              2
