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

                           No. ACM 39061 (reh)
                          ________________________

                            UNITED STATES
                                Appellee
                                      v.
                      Jonathan P. ROBERTSON
             Staff Sergeant (E-5), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                          Decided 3 August 2020
                          ________________________

Military Judge: Jefferson B. Brown.
Approved sentence: Reduction to E-3. Sentence adjudged 18 September
2018 by GCM convened at Offutt Air Force Base, Nebraska.
For Appellant: Major David A. Schiavone, USAF.
For Appellee: Colonel Shaun S. Speranza, USAF; Lieutenant Colonel
Brian C. Mason, USAF; Major Peter F. Kellett, USAF; Mary Ellen
Payne, Esquire.
Before J. JOHNSON, MINK, and KEY, Appellate Military Judges.
Chief Judge J. JOHNSON delivered the opinion of the court, in which
Senior Judge MINK and Judge KEY joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 30.4.
                          ________________________

J. JOHNSON, Chief Judge:
    At Appellant’s original trial, a general court-martial composed of officer
and enlisted members convicted Appellant, contrary to his pleas, of one speci-
fication of abusive sexual contact in violation of Article 120, Uniform Code of
                United States v. Robertson, No. ACM 39061 (reh)


Military Justice (UCMJ), 10 U.S.C. § 920. 1,2 The court-martial sentenced Ap-
pellant to a bad-conduct discharge and reduction to the grade of E-3. The con-
vening authority approved the adjudged sentence.
    Upon our initial review, this court affirmed the findings and sentence.
United States v. Robertson, 77 M.J. 518 (A.F. Ct. Crim. App. 2017), rev’d, 77
M.J. 365 (C.A.A.F. 2018). The United States Court of Appeals for the Armed
Forces (CAAF) granted review and reversed that decision in light of United
States v. Guardado, 77 M.J. 90, 93 (C.A.A.F. 2017), setting aside the findings
of guilty and the sentence. United States v. Robertson, 77 M.J. 365 (C.A.A.F.
2018). The CAAF returned the record to The Judge Advocate General and au-
thorized a rehearing. Id.
    A rehearing took place on 11–18 September 2018. Another panel of officer
and enlisted members convicted Appellant of the Charge and Specification for
a second time. The court-martial adjudged a sentence of confinement for six
months, forfeiture of all pay and allowances, and reduction to the grade of E-
1. The convening authority deferred the execution of the sentence to confine-
ment, forfeitures, and reduction below the grade of E-3 until action. In light of
Appellant’s previously adjudged and approved sentence, and in accordance
with the advice of his staff judge advocate, the convening authority approved
only so much of the sentence as provided for reduction to the grade of E-3.
    Appellant now raises three issues on appeal: (1) whether the military judge
erred by admitting evidence of the conduct of which Appellant had been acquit-
ted at his original trial; (2) whether the military judged erred by instructing
the members to apply a mens rea of negligence rather than recklessness to the
question of reasonable mistake of fact as to consent; and (3) whether senior
trial counsel’s closing argument improperly commented on Appellant’s right to
remain silent. We have carefully considered issue (2), and find it does not re-
quire discussion or warrant relief. 3 With respect to the remaining issues, we




1Unless otherwise noted, references to the punitive articles of the Uniform Code of
Military Justice (UCMJ) are to the Manual for Courts-Martial, United States (2012
ed.). Unless otherwise noted, all other references to the UCMJ, the Rules for Courts-
Martial, and the Military Rules of Evidence are to the Manual for Courts-Martial,
United States (2016 ed.).
2The court-martial found Appellant not guilty of two specifications of rape and one
specification of abusive sexual contact in violation of Article 120, UCMJ.
3In light of United States v. McDonald, 78 M.J. 376 (C.A.A.F. 2019), this court has
previously resolved this issue contrary to Appellant’s position. See United States v. Lee,




                                            2
                 United States v. Robertson, No. ACM 39061 (reh)


find no error that materially prejudiced Appellant’s substantial rights, and we
affirm the findings and sentence.

                                  I. BACKGROUND
    In 2008, AO 4 arrived at Offutt Air Force Base (AFB), Nebraska, where she
was assigned to an aircraft maintenance unit. AO became part of a close-knit
group of maintainers, including Appellant, who spent a considerable amount
of time together off-duty. The group would eat, drink alcohol, play games, lis-
ten to music, watch movies, and generally “hang out,” particularly at an off-
base house Appellant shared with another member of the group, Staff Sergeant
(SSgt) MM. 5
    Although AO was the only female member of the core group of friends, she
was treated and behaved as “one of the guys.” Crude references to male and
female genitalia and other sexual banter were common within the group. On
one occasion, in the presence of other friends, AO repeatedly asked Appellant
to show his penis to her.
    Beginning in approximately August 2010, while AO was going through a
divorce with her then-husband, for about six months AO lived in the house
Appellant and SSgt MM shared. AO and Appellant did not have a sexual rela-
tionship. AO considered Appellant a very close friend, like one of her brothers.
However, on one occasion, when SSgt MM was away on temporary duty, AO
decided to lie down on SSgt MM’s bed to sleep, instead of in her own room.
Appellant got in the bed and began “cuddling behind” her. AO thought Appel-
lant was “just being stupid” and told him to stop. Appellant responded, “[j]ust
let it happen.” AO told Appellant he was being “ridiculous” and told him to
leave, which he did. AO thought the incident was “funny,” and the next morn-
ing she told their friends about it.
   In 2012, AO began dating one of Appellant’s co-workers, Technical Ser-
geant (TSgt) JS. 6




No. ACM 39531 (f rev), 2020 CCA LEXIS 61, at *19–22 (A.F. Ct. Crim. App. 26 Feb.
2020) (unpub. op.). We continue to adhere to our reasoning in Lee.
4AO was formerly a staff sergeant in the Air Force before she separated from the ser-
vice after Appellant’s first court-martial.
5 SSgt MM was a second lieutenant at the time of the rehearing. For clarity, this opin-
ion will refer to him by the rank he held at the time of the events that were the subject
of Appellant’s trial.
6   TSgt JS was a SSgt in 2012.


                                           3
              United States v. Robertson, No. ACM 39061 (reh)


   In the fall of 2012, Appellant travelled to Kadena Air Base (AB), Japan, for
three months as part of a routine unit deployment. In December 2012, AO also
traveled to Kadena AB for a deployment that overlapped Appellant’s deploy-
ment by two or three days. On the night she arrived, AO attended an all-night
party with numerous other members of the unit, including Appellant. The
party was held in a billeting room in the same building where AO was staying.
At one point, Appellant asked AO for her room key so that he could sleep in
her room because his room was in another building significantly further away.
AO did not consider this to be a strange request, because they had shared a
house, a room, and even a bed before. AO declined to let Appellant keep her
key, but she let him use it to get into her room so he could sleep there. AO
remained at the party.
    Later AO returned to her room to get dressed for an in-processing appoint-
ment she had to attend that morning. Another member of the unit, SSgt RS,
went with her and unsuccessfully attempted to awaken Appellant, who was
still there. AO changed into her uniform in the bathroom while SSgt RS waited
at the door, and then she departed for her appointment.
    When AO returned to the room alone several hours later, Appellant was
still sleeping on the bed. AO was very tired and wanted to sleep. She went into
the bathroom, changed out of her uniform into a t-shirt and gym shorts, laid
down on the edge of the bed facing away from Appellant, and fell asleep.
    AO testified that the next thing she remembered was that her shorts were
off and Appellant was “cuddled up right next to [her] back.” She could feel Ap-
pellant’s erect penis on her back. AO pretended to be asleep in the hope that
Appellant would leave her alone; however, he began to caress her sides and
stomach. When Appellant reached towards her vagina, she knocked his hand
away and asked him what he was doing. Appellant pulled AO’s arm behind her
and put her hand on his penis. Although AO repeatedly told Appellant to stop,
and repeatedly asked him to think about her boyfriend TSgt JS and about Ap-
pellant’s girlfriend at the time, Appellant became more aggressive. Appellant
inserted his finger in AO’s vagina, to which AO responded by thrashing her
hips and elbowing him. Appellant shifted positions and repeatedly attempted
to penetrate her vagina with his penis as AO struggled against him. AO locked
her legs together and Appellant was only able to insert the tip of his penis. AO
testified Appellant then “flipped” her over on her stomach, placed his knee on
her in the area of her waist or hips, and began to masturbate as he grabbed
her buttocks and tried to grab her breasts. Appellant then flipped AO onto her
back and straddled her with his knees on her arms. Appellant continued to
masturbate and grab AO’s breasts until he ejaculated on her stomach. He then
got up, retrieved a washcloth from the bathroom, and placed it on AO’s stom-
ach. AO told Appellant to leave and then locked herself in the bathroom.


                                       4
                  United States v. Robertson, No. ACM 39061 (reh)


   AO testified she remained in the bathroom for approximately 45 minutes,
scrubbing her stomach in the shower. When she emerged, Appellant was gone.
Shortly thereafter, AO contacted her boyfriend, TSgt JS, by video call and told
him what happened. She also called her mother and informed her parents. At
some point, AO noticed Appellant had left a note which read “Don’t be mad,”
and either “Let’s do lunch” or “Let’s do dinner.” During a video call, she showed
the note to TSgt JS, who recognized the handwriting. AO also showed TSgt JS
the washcloth Appellant had given her.
    Later on the same day of the assault, AO received a series of messages from
Appellant via Facebook which read: “hungry? [I] think we are goin to cocos,” 7
“??,” and “u mad at me?” AO did not respond and never directly spoke to Ap-
pellant again. Appellant departed Kadena AB within a few days; on the day he
left, AO made a restricted sexual assault report to the Kadena AB Sexual As-
sault Response Coordinator.
    AO also informed two of their mutual friends, SSgt MM and WL, 8 of the
incident shortly after it occurred. AO “made them swear” they would not tell
anyone. However, WL and SSgt MM confronted Appellant soon after he re-
turned to Offutt AFB from the deployment. When they met, Appellant ap-
peared to SSgt MM to be “really nervous, agitated,” and “[a] little uncomforta-
ble,” in contrast to his usual “very cheerful” and “easygoing” demeanor. Appel-
lant related a version of events similar to what AO had told SSgt MM and WL.
According to WL’s subsequent testimony, Appellant told them that AO “was
saying no to having sex” but Appellant “admitted to grabbing her breast and
jacking off on her.” However, in Appellant’s version, the encounter was consen-
sual, and he never “forced [AO] to do anything” or “pinned her arms down.”
Neither SSgt MM nor WL reported the incident at that time, but both essen-
tially cut off their relationship with Appellant after this confrontation.
   Appellant subsequently sent WL a text message 9 which resulted in the fol-
lowing exchange:
          [Appellant:] [WL] im sry that u have to deal w all this. I apoligize
          a million times and for you to have to lie to [Appellant’s girl-
          friend] is unacceptable. I know u hate me right now but I just
          hope u can forgive me for what ive done wrong.



7Elsewhere in her testimony, AO explained that “Coco’s” is a popular restaurant near
Kadena AB.
8WL was an Air Force master sergeant in 2012, but was retired from the Air Force at
the time of Appellant’s rehearing.
9   The text messages appear in their original form, without correction.


                                            5
              United States v. Robertson, No. ACM 39061 (reh)


       [WL:] I don’t hate you. Just really disappointed and I hate the
       situation.
       [Appellant:] I def hate it as well and understand why u r disap-
       pointed. I truly am sry . . . .
    In May 2013, TSgt JS told AO that Appellant had briefly spoken to him on
duty without mentioning the Kadena AB incident. AO then sent the following
text message to Appellant and received the following response:
       [AO:] I never intended to speak to you after that first night in
       Kadena when you took so much away from me, but I feel like you
       have left me with no choice. I am at a loss for words that you,
       someone I considered to be like a brother to me and one of my
       closest friends, can’t even act like a decent human being and
       leave my loved ones alone. You have no right to so much as look
       at [TSgt JS], let alone say “hello” or try to talk about ANY-
       THING besides how sorry YOU are for doing what YOU did to
       me, him and the rest of our friends. We have all been hurt from
       what YOU have done. The fact that you have decided that you
       can go on with your life pretending that nothing has happened
       disgusts me. Just seeing your face or hearing the sound of your
       voice makes me sick to my stomach. I have struggled to under-
       stand what YOU have done to me for the last 5+ months. You
       and I both know what happened that day, and we both know
       that YOU threw away an amazing friendship for disgusting and
       UNWANTED sexual gratification. You have degraded me
       enough, you don’t need to continue to degrade me anymore.
       Leave [TSgt JS] and I alone. You don’t need to look at us, speak
       to us or even to acknowledge or presence.
       [Appellant:] there is no excuse for my actions and [I] fully respect
       what you are saying and [I] will avoid all contact with you. [I]m
       terribly sorry for what happened and obviously wish [I] could
       take that day back. [Y]ou were family to me and [I] crossed the
       line. [T]his is the last you will here from me[.]
   AO and TSgt JS ended their relationship in October or November 2013. In
May 2014, AO made an unrestricted sexual assault report. Afterwards, she
obtained a reassignment to another base.
    Appellant was originally charged with one specification of rape by digitally
penetrating AO’s vagina by unlawful force, one specification of rape by pene-
trating her vulva with his penis by unlawful force, one specification of abusive
sexual contact by forcing her hand onto his penis, and one specification of abu-
sive sexual contact by touching her buttocks and breasts, all in violation of


                                        6
               United States v. Robertson, No. ACM 39061 (reh)


Article 120, UCMJ, and all arising from the December 2012 incident in AO’s
billeting room at Kadena AB. Appellant’s first court-martial found Appellant
guilty of the last of these specifications and not guilty of the others.

                                II. DISCUSSION
A. Uncharged Misconduct
   1. Additional Background
    Before trial, the Government provided notice to the Defense that, pursuant
to Mil. R. Evid. 413, it intended to present certain evidence that Appellant
committed certain “other [uncharged] sexual offenses” in Appellant’s rehear-
ing. This evidence included, inter alia, AO’s expected testimony that Appellant
placed AO’s hand on his penis, digitally penetrated AO’s vulva, and penetrated
AO’s vulva with his penis—the acts for which Appellant had been charged and
found not guilty in his first trial.
    In response, the Defense submitted a timely motion in limine to exclude
this evidence. The Defense argued, inter alia, that it would be fundamentally
unfair to permit the Government to use this evidence of now-uncharged acts to
demonstrate propensity pursuant to Mil. R. Evid. 413, when the erroneous use
of this same evidence for propensity purposes pursuant to Mil. R. Evid. 413 in
Appellant’s first trial caused CAAF to overturn his original conviction. See Rob-
ertson, 77 M.J. at 365. The Defense also argued the Government was barred
from using this evidence because Appellant’s first court-martial had found him
not guilty of these alleged acts of sexual assault.
    At a hearing on the motion, the Government clarified its position regarding
this evidence. Trial counsel explained the Government was no longer seeking
to introduce AO’s testimony regarding Appellant’s other sexual contact and
sexual acts pursuant to Mil. R. Evid. 413, but was instead offering it as “facts
and circumstances” of the charged offense of abusive sexual contact by touch-
ing AO’s breasts and buttocks, because it was “all one factual transaction.” In
response, although the Government no longer sought to use this testimony as
evidence of Appellant’s propensity to commit sexual assault, the Defense con-
tinued to oppose its introduction on the basis that his prior acquittals pre-
cluded the issue of whether he committed these acts.
   In an oral ruling, the military judge denied the defense motion in limine.
He cited the decisions in United States v. Solomon, 72 M.J. 176 (C.A.A.F. 2013),
and United States v. Cuellar, 27 M.J. 50 (C.M.A. 1988), for the principle that
evidence of misconduct for which an accused was previously charged and ac-
quitted may nevertheless be used for propensity purposes in a subsequent
prosecution pursuant to Mil. R. Evid. 413, as well as other relevant purposes
pursuant to Mil. R. Evid. 404(b), “as long as the military judge does a proper

                                       7
               United States v. Robertson, No. ACM 39061 (reh)


analysis.” He explained, “[t]he issue before the court, then, is whether this ev-
idence is admissible for a proper purpose and the probative value is not sub-
stantially outweighed by the danger of unfair prejudice.” The military judge
then applied the three-part analysis for the admissibility of evidence under
Mil. R. Evid. 404(b) set forth in United States v. Reynolds, 29 M.J. 105, 109
(C.M.A. 1989). He noted the nature of the evidence that Appellant committed
the uncharged acts—AO’s testimony—was similar to the evidence that would
be provided with regard to the alleged offense. The military judge further found
the evidence was relevant for non-propensity purposes, specifically “to show
the inter-related facts and circumstances of the alleged incident, or res gestae,”
as well as “that the charged touching was done with the intent to gratify [Ap-
pellant’s] sexual desire.” In addition, the military judge further found the pro-
bative value of the evidence was not substantially outweighed by the danger of
unfair prejudice. He found the danger of prejudice was low, in light of antici-
pated appropriate instructions to the court members; moreover, the fact that
AO would provide the testimony of these acts that “occur[ed] at the same time”
as the charged offense would “not result in a mini trial or a waste of the court’s
time.” Finally, the military judge explained, “permitting [AO] to testify
. . . about what occurred during and immediately around the charged incident
will permit the members to more accurately evaluate her credibility and ability
to accurately remember and recall that evening.”
    During findings, AO testified regarding Appellant’s charged and uncharged
acts during the incident as described in the Background section above. The
military judge’s instructions to the court members on findings included, inter
alia, the following:
       You have also heard testimony that, immediately prior to this
       alleged incident, [Appellant] made [AO] place [her] hand on [Ap-
       pellant’s] penis, digitally penetrated her vulva, and penetrated
       her vulva with his penis, as well as testimony that during or af-
       ter the alleged incident [Appellant] ejaculated on [AO’s] stom-
       ach.
       You may consider this testimony for the limited purpose of its
       tendency, if any, to evaluate the witness’ ability to perceive and
       accurately recall what occurred during the charged offense, the
       accused’s intent to gratify his sexual desires as to the charged
       offense, and whether the government has proven beyond a rea-
       sonable doubt that [Appellant] did not have a reasonable mis-
       take of fact as to consent as to the charged offense.
       In providing you this instruction, I remind you that the only
       charge before you in this rehearing involves an allegation that
       [Appellant] committed a sexual contact by touching [AO’s]

                                        8
                 United States v. Robertson, No. ACM 39061 (reh)


          breasts and buttocks. Whether any other uncharged contacts
          constitute a criminal offense is not a matter before you in this
          rehearing.
          At the prior trial, the members found that the government had
          not proved, beyond a reasonable doubt, that [Appellant’s] pur-
          ported digital penetration of [AO’s] vulva constituted a criminal
          offense, that his causing her to place her hand on his penis con-
          stituted a criminal offense, and that his purported penetration
          of her vulva with his penis constituted a criminal offense. It is
          not known and you need not speculate the rationale for these
          findings. You had the opportunity to personally assess [AO’s]
          credibility as she testified regarding these matters. For all these
          reasons, you may not consider the testimony regarding these un-
          charged incidents for any purpose other than the limited pur-
          poses I have previously described, and you may not conclude
          from this testimony that [Appellant] is a bad person or has gen-
          eral criminal tendencies and that [Appellant] therefore commit-
          ted the offense charged.
Both before and after the military judge delivered this instruction to the mem-
bers, senior defense counsel told the military judge the Defense did not object
to it, nor did the Defense request an additional instruction.
      2. Law
    “The standard of review for a military judge’s decision to admit evidence is
abuse of discretion.” United States v. Fetrow, 76 M.J. 181, 185 (C.A.A.F. 2017)
(citing United States v. Yammine, 69 M.J. 70, 73 (C.A.A.F. 2010)). “A military
judge abuses his discretion when: (1) the findings of fact upon which he predi-
cates his ruling are not supported by the evidence of record; (2) if incorrect legal
principles were used; or (3) if his application of the correct legal principles to
the facts is clearly unreasonable.” United States v. Ellis, 68 M.J. 341, 344
(C.A.A.F. 2010) (citation omitted). The question of whether a prosecution vio-
lates the Double Jeopardy Clause of the Fifth Amendment 10 or the doctrine of
issue preclusion is an issue of law we review de novo. United States v. Hutchins,
78 M.J. 437, 444 (C.A.A.F. 2019) (citations omitted).
    A military judge may exclude otherwise admissible relevant evidence if its
probative value is substantially outweighed by a countervailing danger, includ-
ing but not limited to unfair prejudice to a party or confusion of the issues. Mil.
R. Evid. 403.



10   U.S. CONST. amend. V.


                                          9
               United States v. Robertson, No. ACM 39061 (reh)


    Mil. R. Evid. 404(b) provides that evidence of a crime, wrong, or other act
by a person is generally not admissible as evidence of the person’s character in
order to show the person acted in conformity with that character on a particu-
lar occasion. However, such evidence may be admissible for another purpose,
including, inter alia, proving motive, intent, or absence of mistake. Mil. R.
Evid. 404(b)(2). The list of potential purposes in Mil. R. Evid. 404(b)(2) “is il-
lustrative, not exhaustive.” United States v. Ferguson, 28 M.J. 104, 108 (C.M.A.
1989). We apply a three-part test to review the admissibility of evidence under
Mil. R. Evid. 404(b): (1) does the evidence “reasonably support a finding” that
the accused committed the prior crime, wrong, or act; (2) what “fact of . . . con-
sequence is made more or less probable” by the proffered evidence; and (3) is
the “probative value . . . substantially outweighed by the danger of unfair prej-
udice?” Reynolds, 29 M.J. at 109 (internal quotation marks and citations omit-
ted). Upon defense request, the Government must “provide reasonable notice
of the general nature of any such evidence” it intends to offer, either before
trial or—if the military judge excuses the lack of pretrial notice for good
cause—during trial. Mil. R. Evid. 404(b)(2).
   Regarding uncharged acts of misconduct, our predecessor court explained:
       Facts and circumstances surrounding an offense are always ad-
       missible, whether or not they fall into the category of uncharged
       misconduct. This type of evidence often has been termed “res
       gestae.” It includes conduct, or misconduct not charged, which is
       admissible because it is so closely intertwined with the offense
       charged as to be part and parcel of that offense. . . . Evidence of
       “res gestae” is always admissible both on the merits and during
       presentencing proceedings regardless of the plea, subject only to
       the balancing test prescribed by Mil. R. Evid. 403.
United States v. Keith, 17 M.J. 1078, 1079–80 (A.F.C.M.R. 1984) (citation omit-
ted); see also United States v. Thomas, 11 M.J. 388, 392–93 (C.M.A. 1981) (hold-
ing admission of uncharged res gestae acts “can be justified in terms of prevent-
ing a gap in the narrative of occurrences”). “Res gestae evidence is vitally im-
portant in many trials. . . . It enables the factfinder to see the full picture so
that the evidence will not be confusing and prevents gaps in a narrative of
occurrences which might induce unwarranted speculation . . . .” United States
v. Metz, 34 M.J. 349, 351 (C.M.A. 1992) (citations omitted).
     Mil. R. Evid. 413 provides that “[i]n a court-martial proceeding for a sexual
offense, the military judge may admit evidence that the accused committed any
other sexual offense. The evidence may be considered on any matter to which
it is relevant.” Mil. R. Evid. 413(a). “This includes using evidence of either a
prior sexual assault conviction or uncharged sexual assaults to prove that an
accused has a propensity to commit sexual assault.” United States v. Hills, 75

                                       10
                United States v. Robertson, No. ACM 39061 (reh)


M.J. 350, 354 (C.A.A.F. 2016) (citing United States v. James, 63 M.J. 217, 220–
22 (C.A.A.F. 2006)). However, in Hills, the CAAF held that evidence of the ac-
cused’s commission of a sexual assault may not be used in this way if that
alleged sexual assault is charged in the same court-martial and the accused
has pleaded not guilty to it. Id. at 356; see also Guardado, 77 M.J. at 93; United
States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017).
    The Double Jeopardy Clause of the Fifth Amendment “embodies” the prin-
ciple of “issue preclusion”—“‘that when an issue of ultimate fact has once been
determined by a valid and final judgment, that issue cannot again be litigated
between the same parties in any future lawsuit.’” Hutchins, 78 M.J. at 444
(quoting Ashe v. Swenson, 397 U.S. 436, 443 (1970)). “An ultimate fact is an
issue that was ‘necessary to the [initial] judgment.’” Id. (quoting Bobby v. Bies,
556 U.S. 825, 835 (2009)) (alteration in original). “A ‘determination ranks as
necessary . . . only when the final outcome hinge[d] on it.’” Id. (quoting Bobby,
556 U.S. at 835) (alterations in original). The appellant bears the burden to
demonstrate that litigation of an issue was foreclosed by a prior proceeding.
Id. (citing Dowling v. United States, 493 U.S. 342, 350–51 (1990)).
     3. Analysis
    Appellant contends the military judge erred in multiple respects in admit-
ting AO’s testimony regarding the acts for which he was previously charged
and acquitted. We consider each argument in turn.
        a. Notice
    Appellant notes the Government did not refer to Mil. R. Evid. 404(b) in its
pretrial notice regarding Mil. R. Evid. 413 evidence, and even at trial cited
“facts and circumstances” rather than Mil. R. Evid. 404(b) as the basis for ad-
missibility. Appellant acknowledges the military judge applied the Reynolds
test to this evidence, but he contends the military judge “failed to specify a Mil.
R. Evid. 404(b) purpose for which the evidence was being admitted.” As a re-
sult, he argues, “for the entirety of the government’s case, the defense did not
know how the members would be instructed that they could use such evidence.”
We are not persuaded by Appellant’s arguments regarding a lack of notice.
    First, to the extent Appellant specifically contends the military judge erred
by instructing the members they could consider this evidence with regard to
AO’s ability to perceive and recall the events, Appellant’s intent to gratify his
sexual desires, and whether Appellant had a reasonable mistake of fact as to
consent, the Defense waived any objection to these instructions. 11 Both before



11Of course, we do not find his waiver with regard to these specific instructions waived
his initial objections to the evidence itself.


                                          11
               United States v. Robertson, No. ACM 39061 (reh)


and after the military judge delivered these instructions, senior defense coun-
sel informed the military judge the Defense had no objection. In United States
v. Davis, the CAAF held that “‘expressly and unequivocally acquiescing’ to the
military judge’s instructions . . . waive[s] all objections to the instructions.” 79
M.J. 329, 331 (C.A.A.F. 2020) (quoting United States v. Smith, 9 C.M.R. 70, 72
(C.M.A. 1953)) (additional citation omitted). In this respect, Appellant’s case is
not materially distinguishable from Davis, which we find to be controlling.
    Second, Mil. R. Evid. 404(b)(2) requires the Government to provide “rea-
sonable notice of the general nature of any such evidence . . . .” In this case, the
Government did provide notice of the “general nature of [the] evidence” it
sought to introduce, specifically AO’s testimony regarding Appellant’s acts im-
mediately prior to the charged abusive sexual contact on her breasts and but-
tocks, albeit included in a Mil. R. Evid. 413 notice rather than a Mil. R. Evid.
404(b) notice. Moreover, evidence admitted pursuant to Mil. R. Evid. 413 “may
be considered on any matter to which it is relevant,” including not only propen-
sity to commit sexual offenses but also—when relevant—a witness’s ability to
perceive and recall, the accused’s intent, and the existence of a reasonable mis-
take of fact. Accordingly, we are not persuaded the Defense was prejudiced by
a lack of pretrial notice that the Government would seek to admit this evidence,
to use for any or all of these purposes.
    Third, Appellant’s argument that he lacked notice as to how the military
judge would instruct the members on the specific uses of this evidence is with-
out merit. In ruling on the motion, the military judge specifically referred to
the evidence’s relevance to both Appellant’s intent to gratify his sexual desire
and to AO’s credibility and ability to accurately remember and recall that even-
ing. He also found the evidence to be res gestae—that is, “part and parcel” of
the offense. See Keith, 17 M.J. at 1079–80. The predecessor of our superior
court indicated that res gestae evidence is so manifestly relevant as to require
no specific instructions to guide the court members’ use of it. Thomas, 11 M.J.
at 392 (citations omitted). In a similar vein, AO’s testimony that Appellant
forced her hand onto his penis and penetrated her vulva with his finger and
penis, despite her protests and resistance, was so obviously relevant to the ex-
istence of any mistake of fact as to consent to the charged offense that the De-
fense cannot have been surprised it might be used for such a purpose. Thus it
is no surprise the Defense did not object to the instruction, as described above.
       b. Issue Preclusion
    Appellant next argues that his prior acquittals precluded the Government
from introducing AO’s testimony regarding the previously charged acts. Appel-
lant focuses on the military judge’s belief that the prior court-martial might
have concluded Appellant committed the acts AO described, but found him not
guilty due to a reasonable mistake of fact as to consent. Appellant correctly

                                        12
                  United States v. Robertson, No. ACM 39061 (reh)


notes that at the original trial, the court members were not instructed on mis-
take of fact as to consent with regard to the alleged offenses for which he was
acquitted. Because they were not so instructed, it is unlikely mistake of fact as
to consent was the basis for Appellant’s earlier acquittals. Therefore, Appellant
reasons that, contrary to the military judge’s suppositions, his prior acquittals
must have been based on the first court-martial’s conclusion that he did not
commit the alleged acts, and therefore the Government could not relitigate
those alleged acts in the second trial. Nevertheless, this evidence was not pre-
cluded by the results of the original trial.
    In addition to hypothesizing about possible rationales for Appellant’s ac-
quittal at the first trial, the military judge also relied on precedent from our
superior court indicating that conduct that was the subject of a prior acquittal
might be admissible in a subsequent trial for a different offense, provided it is
relevant and the military judge performs an appropriate Mil. R. Evid. 403 anal-
ysis. See Solomon, 72 M.J. at 181–82. He also cited our sister court’s un-
published opinion in United States v. Hutchins, No. 200800393, 2018 CCA
LEXIS 31 (N.M. Ct. Crim. App. 29 Jan. 2018), aff’d, 78 M.J. 437 (C.A.A.F. 2019)
(unpub. op.), as “persuasive.” In Hutchins, the court explained that the admis-
sibility in a court-martial of evidence that was the subject of an offense charged
at a prior court-martial, for which the accused was acquitted, is governed not
by the doctrine of issue preclusion, but by Mil. R. Evid. 401, 403, 404(b), and
the Reynolds test. Hutchins, unpub. op. at *16–18 (citations omitted). The
CAAF affirmed and explained:
          [A] military judge may admit “otherwise admissible evidence
          even though it was previously introduced on charges of which an
          accused has been acquitted” as long as “the evidence is relevant”
          and “the probative value of the proffered evidence is [not] out-
          weighed by its prejudicial effect.” . . . “[A]n acquittal in a crimi-
          nal case does not preclude the Government from relitigating an
          issue when it is presented in a subsequent action governed by a
          lower standard of proof” such as in an M.R.E. 404(b) context.
Hutchins, 78 M.J. at 445 (quoting Dowling v. United States, 493 U.S. 342, 349
(1990); Cuellar, 27 M.J. at 54) (second alteration in original) (additional cita-
tion omitted). 12 Therefore, regardless of any misconceptions on the military
judge’s part regarding possible rationales for Appellant’s prior acquittals, he
appropriately concluded that AO’s testimony regarding Appellant’s actions im-
mediately prior to the charged offense was not precluded from admission.




12   The CAAF issued its opinion in Hutchins after Appellant’s rehearing.


                                           13
               United States v. Robertson, No. ACM 39061 (reh)


      Appellant’s argument that “[t]he only rationale for the findings of the orig-
inal panel is that the government did not prove that the physical acts described
. . . actually occurred” misses the point. The admissibility of evidence pursuant
to Mil. R. Evid. 404(b) is not governed by a standard of proof beyond a reason-
able doubt. Appellant was not re-charged with the previously litigated offenses,
and the court members at the subsequent trial were not called upon to deter-
mine his guilt beyond a reasonable doubt with respect to those acts. Therefore,
the prior acquittals under a beyond reasonable doubt standard did not preclude
use of this testimony at the subsequent trial pursuant to Mil. R. Evid. 404(b).
       c. Mil. R. Evid. 403
    Finally, Appellant contends the military judge erred in balancing the pro-
bative value of the evidence against the dangers of unfair prejudice. He argues
the uncharged misconduct was much more serious than the charged offense.
Appellant further argues the military judge could have reduced the unfair prej-
udice by limiting AO’s testimony to something less than full-blown descriptions
of forcible rape, but the military judge failed to do so.
     Where a military judge conducts a proper balancing test under Mil. R. Evid.
403 on the record, an appellate court will not overturn the ruling absent a clear
abuse of discretion. United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000)
(citation omitted). In this case, the military judge clearly articulated his rea-
soning, and we find his application of the law to the facts was not clearly un-
reasonable. See Ellis, 68 M.J. at 344 (citation omitted). He found that the dan-
ger of unfair prejudice was low, considering that he would provide an appro-
priate instruction. He in fact gave such an instruction, which identified spe-
cific, non-propensity uses for AO’s testimony, forbid its use as propensity evi-
dence, and informed the members that Appellant previously had been found
not guilty for any criminal offense with respect to these acts. In addition to the
relevant uses the military judge specified in his Mil. R. Evid. 403 ruling, we
note this evidence had high probative value as res gestae with the charged of-
fense. It would be difficult for the members to comprehend the context for AO’s
testimony regarding the charged abusive sexual contact on her breasts and
buttocks without her testimony of Appellant’s various actions, and her reac-
tions, that immediately preceded it. Moreover, the military judge reasonably
found the testimony would not result in a waste of time or a distracting “mini-
trial” on a collateral matter.
   Given the military judge’s analysis, and in light of our presumption in the
absence of evidence to the contrary that court members follow the military
judge’s limiting instructions, see United States v. Taylor, 53 M.J. 195, 198
(C.A.A.F. 2000) (citations omitted), we find the military judge did not clearly
abuse his discretion with respect to his Mil. R. Evid. 403 analysis of AO’s tes-
timony.

                                        14
                United States v. Robertson, No. ACM 39061 (reh)


B. Improper Argument
     1. Additional Background
    During group voir dire of the court members, trial defense counsel con-
firmed that each court member understood that Appellant had “an absolute
right to remain silent,” and that if Appellant chose to exercise that right, they
could not hold that against him.
    The Government called several witnesses to testify during the findings
phase of the trial, including: AO, the victim; TSgt JS, her boyfriend at the time;
the victim’s mother; and SSgt MM and WL, the friends who confronted Appel-
lant upon his return to Offutt AFB. In its findings case, the Defense also called
several witnesses, including inter alia two other individuals who were on the
deployment who testified AO seemed “normal” when they saw her after the
alleged offense, and several who testified to their personal opinions that AO
had an untruthful character and/or her reputation for having an untruthful
character. The Defense also introduced the prior testimony of two defense wit-
nesses from the original trial regarding AO’s character for untruthfulness. 13
     During his closing argument on findings, trial counsel stated the following:
        It was a traumatic experience. And you have to weigh the credi-
        bility of the witnesses that you heard from, the tenor of her voice,
        how upset she got when she’s talking about this. That’s not con-
        trol. You heard her mom sit up here and tell you what it was
        like, and you watched her face buckle when she told you that
        [AO] told her she squeezed her legs tight so that he couldn’t get
        in. That is a visceral reaction and you can’t fake it. And you saw
        [TSgt JS] up here, nervous, upset, because it upset him because
        he got that phone call and he had to process it. You have to weigh
        that against a couple of [Appellant’s] buddies that weren’t in
        that room, and weigh that against a guy that you never heard
        from. You’ve got to judge and consider their intelligence, their
        sincerity, their prejudices. Think about the questions asked back
        and forth, and think about their bias. Yeah, they don’t like it,
        they’re not friends with her, they got his back. It doesn’t make
        her a liar.
(Emphasis added). Trial defense counsel did not object to this argument, and
the military judge did not intercede sua sponte.



13In addition, the Defense briefly recalled TSgt JS to clarify that he had been in contact
with AO’s mother while AO was at Kadena AB, and called the former Sexual Assault
Response Coordinator at Kadena AB to testify regarding evidence procedures.


                                           15
              United States v. Robertson, No. ACM 39061 (reh)


    The military judge’s instructions to the court members on findings included
the following: “The accused has an absolute right to remain silent. You will not
draw any inference adverse to the accused from the fact that the accused did
not testify as a witness. The fact that the accused has not testified must be
disregarded by you.”
   2. Law
    Whether a trial counsel’s comments in closing argument improperly refer-
enced an accused’s constitutional right to remain silent is a question of law we
review de novo. See United States v. Flores, 69 M.J. 366, 369 (C.A.A.F. 2011)
(citing United States v. Moran, 65 M.J. 178, 181 (C.A.A.F. 2007)). “When no
objection is made during the court-martial, a counsel’s arguments are reviewed
for plain error.” Id. (citing United States v. Schroder, 65 M.J. 49, 57–58
(C.A.A.F. 2007)). “Plain error occurs when (1) there is error, (2) the error is
plain or obvious, and (3) the error results in material prejudice.” Id. (citing
United States v. Maynard, 66 M.J. 242, 244 (C.A.A.F. 2008)). The burden is on
Appellant to show that there was error and that the error was plain. United
States v. Carter, 61 M.J. 30, 34 (C.A.A.F. 2005) (citation omitted). However,
“[r]egardless of whether there was an objection or not, ‘[i]n the context of a
constitutional error, the burden is on the Government to establish that the
comments were harmless beyond a reasonable doubt.’” Flores, 69 M.J. at 369
(quoting Carter, 61 M.J. at 35); see also United States v. Tovarchavez, 78 M.J.
458, 463 (C.A.A.F. 2019) (citations omitted) (explaining that material prejudice
for forfeited constitutional errors is assessed for harmlessness beyond a rea-
sonable doubt).
    “It is black letter law that a trial counsel may not comment directly, indi-
rectly, or by innuendo, on the fact that an accused did not testify in his de-
fense.” United States v. Mobley, 31 M.J. 273, 279 (C.M.A. 1990) (citing Griffin
v. California, 380 U.S. 609 (1965)). However, a “prosecutorial comment must
be examined in light of its context within the entire court-martial.” Carter, 61
M.J. at 33 (citation omitted). Improper comments that are “isolated” or a “slip
of the tongue” may be evaluated differently than comments that are repeated
so as to become “a centerpiece of the closing argument.” Id. at 34 (citations
omitted). “[W]hether [an] error is harmless beyond a reasonable doubt ‘will de-
pend on whether there is a reasonable possibility that the evidence [or error]
complained of might have contributed to the conviction.’” United States v.
Paige, 67 M.J. 442, 451 (C.A.A.F. 2009) (quoting Moran, 65 M.J. at 187). To
find that an error did not contribute to the conviction is “to find that error
unimportant in relation to everything else the jury considered on the issue in
question, as revealed in the record.” Moran, 65 M.J. at 187 (citation omitted).




                                      16
               United States v. Robertson, No. ACM 39061 (reh)


   3. Analysis
    Because the Defense did not object to trial counsel’s argument, we review
for plain error. See Flores, 69 M.J. at 369 (citation omitted). Appellant contends
the italicized portion of trial counsel’s argument quoted above was a plainly
erroneous impermissible comment on Appellant’s exercise of his right not to
testify. The Government concedes trial counsel’s reference to “a guy that you
never heard from” is “probably error.” However, the Government contends that
because the comment was “fleeting” and “neither the military judge nor the
trial defense counsel paid the remotest attention to it,” the error was not “plain
or obvious.”
    We conclude the comment is a plain and obvious error. However fleeting,
trial counsel’s comment apparently refers to Appellant and to the fact that Ap-
pellant did not testify. Such arguments are generally impermissible, and this
is not a situation where the reference was “tailored” in response to a specific
defense theory or argument. See Carter, 61 M.J. at 34 (citations omitted).
    Having found that Appellant has met his burden to demonstrate a plain
error with regard to a constitutional right, we must determine whether the
error was harmless beyond a reasonable doubt. See Flores, 69 M.J. at 369 (ci-
tation omitted). Under the particular circumstances of this case, for several
reasons we conclude that it was.
    First, the comment was brief and isolated. Trial counsel made only one such
reference over the course of his initial and rebuttal closing arguments that
spanned 21 pages in the transcript of the record of trial. Moreover, even in the
single paragraph where the comment occurred, neither Appellant nor his fail-
ure to testify was the focus of trial counsel’s argument. Instead, it is evident
trial counsel was focused on the relative credibility of the witnesses who did
testify, including the defense witnesses.
    Second, the military judge’s clear instruction that the members were to dis-
regard the fact that Appellant did not testify, delivered after trial counsel’s
argument, ameliorates the error to an extent. Court members are presumed to
follow a military judge’s instructions in the absence of evidence to the contrary.
See Taylor, 53 M.J. at 198 (citations omitted). In this case, the fleeting nature
of the improper comment and the absence of other circumstances indicating
the members might have failed to heed the instruction allay our concern that
the instruction may have been disregarded. Moreover, the Defense’s voir dire
questions which confirmed the court members’ appreciation of this very point,
and inoculated the members from drawing any adverse inference from Appel-
lant’s decision not to testify, reinforced the instruction. Although we do not
hold or believe that such an instruction will inevitably counteract an improper
argument, under the circumstances and in combination with other factors in


                                       17
               United States v. Robertson, No. ACM 39061 (reh)


this case, we conclude the instruction had a real tendency to avert unfair prej-
udice to Appellant.
    Third, the strength of the Government’s case tended to render trial coun-
sel’s comment “unimportant in relation to everything else the [members] con-
sidered” with respect to Appellant’s guilt. Moran, 65 M.J. at 187 (citation omit-
ted). AO’s testimony regarding the offense was clear and reinforced by other
evidence presented to the members. TSgt JS, AO’s mother, SSgt MM, and WL
all confirmed AO reported the incident to them shortly after it occurred. TSgt
JS testified he saw, by video, bruises on AO’s wrist and hip after the incident,
as well as the note Appellant left in AO’s room asking her not to “be mad.”
Even more significantly, when SSgt MM and WL confronted Appellant after
he returned from Kadena AB, Appellant significantly corroborated AO’s ac-
count, to include that AO did not want to have sex, that Appellant grabbed her
breast, and that Appellant ejaculated on her. In addition, Appellant’s response
to AO’s lengthy and accusatory text message in May 2013 stated he was “ter-
ribly sorry” and had “no excuse,” and did not challenge her assertions that his
actions were “unwanted” and “degrad[ing]” to AO, nor the implication that he
was solely responsible for the incident.
    To reiterate, trial counsel’s reference to Appellant as “a guy you never
heard from” was improper and clearly erroneous. Trial counsel should not have
said it; when he did, trial defense counsel ought to have objected, and the mil-
itary judge ought to have intervened. See United States v. Andrews, 77 M.J.
393, 403–04 (C.A.A.F. 2018) (explaining the military judge has a “sua sponte
duty to insure [sic] that an accused receives a fair trial” and trial defense coun-
sel “owes a duty to the client to object to improper arguments”). However, the
very brevity and isolation of the transgression tend to explain why they did not
do so. See United States v. Nelson, 1 M.J. 235, 239 n.6 (C.M.A. 1975) (citations
omitted) (“The absence of defense objection is, itself, some measure of the min-
imal impact the prosecutor’s remark had on the jury.”). Although we do not
condone trial counsel’s remark, under the circumstances of this case we are
convinced beyond a reasonable doubt that this single comment did not contrib-
ute to Appellant’s conviction.

                                III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).




                                        18
          United States v. Robertson, No. ACM 39061 (reh)


Accordingly, the findings and sentence are AFFIRMED.


            FOR THE COURT



            CAROL K. JOYCE
            Clerk of the Court




                                 19
