                            CORRECTED COPY

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                           JOHNSON, KRAUSS, and BURTON
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                        Private E2 LESHAWN WILLIAMS
                          United States Army, Appellant

                                   ARMY 20091067

       Headquarters, U.S. Army Signal Center of Excellence and Fort Gordon
                           Tara Osborn, Military Judge
               Colonel Michael W. Hoadley, Staff Judge Advocate

For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Jacob D. Bashore, JA; Major Tiffany K. Dewell, JA (on
brief).**
For Appellee: Major Amber J. Roach, JA; Major Katherine S. Gowel, JA; Captain
Christopher S. Glascott, JA (on brief).***


                                       9 May 2012
                               ---------------------------------
                               SUMMARY DISPOSITION
                               ---------------------------------

BURTON, Judge:
       A military judge sitting as a general court-martial convicted appellant,
contrary to his plea, of engaging in a sexual act while the victim was substantially
incapable of declining participation in a sexual act in violation of Article 120(c),
Uniform Code of Military Justice, 10 U.S.C. § 920(c) (2006 & Supp. III 2009)
[hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct
discharge, confinement for nine months, total forfeiture of all pay and allowances,
and reduction to the grade of E-1. The convening authority approved the adjudged
sentence.

**Corrected
***Corrected
WILLIAMS – ARMY 20091067

        This case is before the court for review under Article 66, UCMJ. We have
considered the record of trial, appellant’s assignment of error,  the government’s
answer, and the matters appellant personally raised pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982). Appellant complained of unreasonable post-
trial delay in his post-trial matters, see Rule for Courts-Martial 1105, and prejudice
as a result. The staff judge advocate’s Addendum addressed matters raised by the
defense counsel and concluded that the matters did not constitute legal error and no
corrective action was required or merited. The record includes a memorandum
which provides a timeline for post-trial processing; however, it does not provide any
justifiable case-specific reason for the delay.

        Though we find no prejudice as a result of the excessive delay in this case,
absent actual prejudice, this court is responsible to review the appropriateness of the
sentence in light of presumptively excessive and unjustified delay in post-trial
processing. UCMJ art. 66(c). See generally United States v. Toohey, 63 M.J. 353,
362–63 (C.A.A.F. 2006); United States v. Moreno, 63 M.J. 129, 143 (C.A.A.F.
2006); United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002); United States v.
Ney, 68 M.J. 613, 616–17 (Army Ct. Crim. App. 2010). Reviewing the entire record
of trial, we find the sentence, as approved by the convening authority, appropriate
and, therefore, despite the government’s failure to meet its obligation to provide
more timely post-trial processing of this case, relief is not warranted.

       On consideration of the entire record, the assigned error, and the matters
personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), we find the findings of guilty and the sentence as approved by the
convening authority correct in law and fact. Accordingly, the findings of guilty and
the sentence are AFFIRMED.




                                                             

  In his first assignment of error, appellant avers that the military judge erred when
he did not instruct the panel that appellant first possessed the burden to prove the
affirmative defenses of consent and mistake of fact as to consent by a preponderance
of the evidence. UCMJ art. 120(t)(16). We hold that the military judge erred by not
giving a legally sufficient explanation when she provided an instruction that was
inconsistent with Article 120, UCMJ. See United States v. Medina, 69 M.J. 462, 465
(C.A.A.F. 2011). However, under the facts of this case, we are satisfied that this
error was harmless beyond a reasonable doubt. The instruction that was given was
clear and correctly conveyed that the burden to disprove the affirmative defenses
beyond a reasonable doubt rested solely with the government. See id.  




                                                                2 
WILLIAMS – ARMY 20091067

    Senior Judge JOHNSON and Judge KRAUSS concur.

                               FOR   THE COURT:
                                FOR THE COURT: 




                               MALCOLM H. SQUIRES, JR.
                               MALCOLM                                          
                                               H. SQUIRES,       JR.
                               Clerk of Court 
                               Clerk of Court




                                  3 
