            UNITED STATES NAVY–MARINE CORPS
               COURT OF CRIMINAL APPEALS
                         _________________________

                              No. 201700178
                         _________________________

                             UNITED STATES
                                    Appellee

                                       v.

                            Jacob A. PATRICK
                         Lieutenant (O-3), U.S. Navy
                                 Appellant
                         _________________________

     Appeal from the United States Navy-Marine Corps Trial Judiciary

            Military Judge: Captain Charles Purnell, JAGC, USN.

                For Appellant: Mr. Zachary Spilman, Esq.;
          Lieutenant Commander William L. Geraty, JAGC, USN.

                For Appellee: Captain Sean M. Monks, USMC;
                       Major Kelli A. O’Neil, USMC.
                         _________________________

                          Decided 11 December 2018
                         _________________________

              Before WOODARD, FULTON, and CRISFIELD,
                      Appellate Military Judges
                         _________________________

This opinion does not serve as binding precedent but may be cited as
persuasive authority under NMCCA Rule of Practice and Procedure
18.2.
                         _________________________

WOODARD, Chief Judge:
    A panel of officer members sitting as a general court-martial convicted the
appellant, contrary to his pleas, of two specifications of sexual assault in vio-
lation of Article 120(b), Uniform Code of Military Justice (UCMJ), 10 U.S.C.
                      United States v. Patrick, No. 201700178


§ 920 (2012). 1 The members sentenced the appellant to 12 months’ confine-
ment, a reprimand, and dismissal from the Naval Service. The convening au-
thority (CA) approved the sentence and, with the exception of the dismissal,
ordered it executed.
    The appellant has raised the following assignments of error (AOEs): 2
(1) the military judge improperly instructed the members regarding the re-
quired mens rea; (2) it was plain error to admit DNA and sleep disorder ex-
pert testimony; (3) the trial counsel committed prosecutorial misconduct in
his closing and rebuttal arguments; (4) the military judge abused his discre-
tion by admitting lay witness testimony concerning the victim’s demeanor,
and expert testimony concerning the victim’s blood alcohol concentration
(BAC); (5) the evidence was legally and factually insufficient to prove pene-
tration or that the victim was asleep or unconscious; (6) the trial defense
counsel provided ineffective assistance; (7) the sentence, which included the
mandatory minimum of a dismissal, was inappropriately severe; and
(8) there is error in the court-martial order (CMO).
    After careful consideration of the record of trial and the pleadings of the
parties, we conclude that the CMO does contain error and direct corrective
action in our decretal paragraph. After correcting this error, we find that the
findings and the sentence are correct in law and fact and no error materially
prejudicial to the substantial rights of the appellant remains. Arts. 59(a) and
66(c), UCMJ.




    1 The appellant was convicted of two specifications for the same conduct under
two different theories of liability. Specification 3 of the charge alleged that the appel-
lant digitally penetrated his victim “by causing bodily harm” in violation of Article
120(b)(1)(B), UCMJ; Specification 4 of the charge alleged that the appellant digitally
penetrated his victim while she was “asleep or unconscious” in violation of Article
120(b)(2), UCMJ. Charge Sheet. After findings, the military judge conditionally dis-
missed Specification 4 without prejudice, to ripen into prejudice upon completion of
appellate review. Record at 1232-33, 1239, and 1241; Charge Sheet; AE LXXXIII
(Findings Worksheet) and XCI (Sentencing Cleansed Charge Sheet). The appellant
was also acquitted of two specifications of sexual assault alleging penile penetration
of the victim’s vulva charged under the same two theories of liability, in violation of
Articles 120(b)(1)(B) and 120(b)(2), UCMJ.
    2 The appellant raised a total of 11 AOEs for our consideration. We have reor-
dered and consolidated several of the AOEs in order to more clearly address the
raised errors and applicable law.



                                              2
                    United States v. Patrick, No. 201700178


                              I. BACKGROUND

    The appellant and LCDR LS were pilots assigned to a squadron embarked
on an aircraft carrier. LCDR LS had just joined the squadron while it was
forward deployed. She was assigned as a department head in the squadron.
The appellant, already with the squadron when LCDR LS arrived, was per-
forming duties in another department. Before arriving at the squadron, the
only interaction LCDR LS had ever had with the appellant occurred 10 years
earlier when, as a flight instructor, LCDR LS performed a single evaluation
flight with him.
    When their ship made a port call in Bahrain, a group of their squadron’s
officers—including LCDR LS and the appellant—rented two rooms—
commonly referred to as “admins”—for the port call. Each admin consisted of
a suite of rooms that included two bedrooms, a living area, kitchen, and mul-
tiple bathrooms. The officers staying in the admins would come and go be-
tween the admins and the ship as necessary to fulfill their duty obligations.
The “admins” were suites of hotel rooms where the squadron’s officers would
gather to sleep and socialize away from the ship. One of the admins was re-
ferred to as the “quiet” admin where the more senior officers slept. The other
was referred to as the “party” admin where most of the socializing took place
and the more junior officers slept. The two admins were located on separate
floors of the hotel.
   As the only female pilot in the squadron, before agreeing to join her male
squadron mates in renting the admins, LCDR LS asked one of her fellow lieu-
tenant commanders if she should get her own room. He assured her that,
even though she would be the only female in the admins, there would be no
problem with her staying with them.
    On the first night the ship was in port, LCDR LS slept on a roll-away bed
in the living area of the quiet admin. The following day she returned to the
ship for duty as the Air Wing Duty Officer. This duty was a 24-hour watch
during which she was allowed to sleep but she was only able to get approxi-
mately four hours of sleep. The appellant, who had not been ashore the first
night of the port call, slept in the roll-away bed previously occupied by
LCDR LS. After being relieved from duty, LCDR LS rejoined her squadron
mates at the hotel to relax and socialize.
   After returning to the hotel, throughout the day and into the evening
hours, LCDR LS consumed several alcoholic drinks with her squadron mates
at multiple venues in and around the hotel to include the pool, restaurant,
and finally, the party admin. The appellant had also been drinking through-
out the day and into the evening hours at many of the same locations. How-
ever, other than conversation in passing, there had been no personal or flirta-


                                        3
                        United States v. Patrick, No. 201700178


tious interaction between LCDR LS and the appellant. At approximately
0100 LCDR LS decided to call it a night and went to the quiet admin to get
some sleep.
    Before going to bed, LCDR LS made and ate dinner, and had a brief con-
versation with another officer who was staying in the quiet admin. After put-
ting on pajamas, and without knowing that the appellant had slept in the
roll-away bed the night before, LCDR LS went to sleep on the roll-away bed.
She fell asleep around 0200. Sometime later that morning, the appellant
came into the room and got into the bed with LCDR LS.
    Another squadron officer, LT AT, who was sleeping on a couch in the liv-
ing area of the room was awakened by the appellant entering. LT AT heard
what he described as indiscernible mumbling—but he did hear someone say
“water.” At trial he could not recall if it was a male or female voice that spoke
the word. He also heard the crinkling of a water bottle, and, a bit later, what
he believed to be the roll-away bed creaking, kissing sounds, and a female
moaning. Although he did not investigate the sounds, and tried to go back to
sleep, he was soon thereafter awakened when he heard LCDR LS saying:
“What’s going on? Why are you on top of me? Get off of me.” 3 These state-
ments were also heard by several other witnesses in the quiet admin. LT AT
further explained that LCDR LS kept repeating herself, each time the volume
of her voice increasing. When he sat up on the couch to see what was happen-
ing, LT AT saw the appellant get off the roll-away bed while fastening his
pants, and LCDR LS running to the corner of the room screaming, “[g]et off
me, [w]hat are you doing[,]” and “[h]e raped me.” 4
    Also awakened by the commotion, several of the other squadron officers
staying in the bedrooms of the quiet admin entered the living room area. As
one of them opened the door to the bedroom, LCDR LS ducked under his arm
into the room and “crawled up into a ball next to [his] bed.” 5 The witness de-
scribed LCDR LS as hysterical and screaming “[g]et him away from me. Oh,
my God. . . . He raped me.” 6 The appellant, meanwhile, repeatedly stated that
nothing happened and that he was just trying to give her water. By all ac-
counts, LCDR LS began yelling somewhere between 0400 and 0420.
   To separate them, LCDR LS was placed in one of the quiet admin bed-
rooms, and the appellant was escorted to the party admin. Medical and mili-


   3   Record at 628.
   4   Id. at 631.
   5   Id. at 684.
   6   Id.



                                          4
                     United States v. Patrick, No. 201700178


tary law enforcement personnel were notified and responded. By 0600
LCDR LS had arrived at the Naval Branch Health Clinic—Bahrain. At the
clinic she underwent a sexual assault forensic examination (SAFE). Although
she arrived at the clinic at 0600, because of her emotional state, she did not
begin the SAFE until 1000. The appellant was also taken to the clinic where
he underwent a SAFE as well. Among the items of evidence collected from
both the appellant and LCDR LS during the exams were DNA swabs and
urine and blood samples. The evidence collected from their examinations was
sent to and forensically examined by employees of U.S. Army Criminal Inves-
tigation Laboratory (USACIL). Testing on the evidence revealed that
LCDR LS had a BAC of 0.1 at the time her sample was drawn and the appel-
lant had a BAC of 0.08 at the time his sample was drawn. 7 The DNA evi-
dence collected showed that the appellant had a DNA profile consistent with
LCDR LS’s on the tip and shaft of his penis as well as his pubic mound. It al-
so revealed a DNA profile consistent with the appellant’s from inside of
LCDR LS’s vulva. Additionally, the testing found very minor traces of male
DNA inside LCDR LS’s vaginal canal. Due to the limited amount of male
DNA found in LCDR LS’s vaginal canal, the examiner was unable to deter-
mine whether the appellant was a likely match or not.
    At trial, the defense pursued multiple reasonable doubt theories:
LCDR LS consented, but lied about being asleep when the sexual act oc-
curred in order to avoid being disciplined for engaging in sexual conduct with
a junior officer; the appellant held an honest and reasonable mistake of fact
as to LCDR LS’s consent to the sexual act; there was no penetration of
LCDR LS’s vulva by the appellant because any male DNA found inside her
vulva could be the result of transference; and although the male DNA found
inside LCDR LS’s vulva included the appellant as a potential contributor, be-
cause of the large number of potential other males also included, there was
reasonable doubt that it was actually his DNA.
    Additional facts necessary to the resolution of the issues will be discussed
below.




   7 All BAC calculations mentioned are expressed as a percentage of milligrams of
ethanol per deciliter of blood. For example, LCDR LS’s BAC of 0.1 percent represents
100 milligrams of ethanol per deciliter of blood.



                                           5
                     United States v. Patrick, No. 201700178


                                 II. DISCUSSION

A. Required Mens Rea
    The appellant was convicted of penetrating LCDR LS’s vulva with his fin-
ger, without her consent, in violation of Article 120(b)(1)(B), UCMJ; and of
penetrating LCDR LS’s vulva with his finger when he knew or reasonably
should have known that she was asleep, unconscious, or otherwise unaware
in violation of Article 120(b)(2), UCMJ. The appellant avers, relying on Elonis
v United States, 575 U.S. ___, 135 S. Ct. 2001 (2015), 8 that the military judge
erred when instructing the members on the elements of the offenses for
which he was convicted by failing to instruct on the required mens rea. The
appellant argues that because lack of consent is a material element of the of-
fenses and because Congress was silent as to an applicable mens rea for this
element, Elonis requires this court to apply a mens rea of at least reckless-
ness to the offenses. We disagree. The offenses under Article 120(b), UCMJ,
with which the appellant was charged and convicted do not fall within the
category of statutes addressed in Elonis.
   Determining what mens rea is applicable to an offense “is a question of
law which we review de novo.” United States v. Gifford, 75 M.J. 140, 142
(C.A.A.F. 2016). “[I]n doing so, we invoke the traditional rules of statutory
construction.” Id. (citations omitted). The Supreme Court has “long recog-
nized that determining the mental state required for commission of a federal
crime requires ‘construction of the statute and . . . [if necessary,] inference of
the intent of Congress.’” Staples v. United States, 511 U.S. 600, 605 (1994)
(quoting United States v. Balint, 258 U.S. 250, 253 (1922)).
    “[T]he existence of a mens rea is the rule of, rather than the exception to,
the principles of Anglo-American criminal jurisprudence.” United States v.
US Gypsum Co., 438 U.S. 422, 436 (1978) (citation omitted). “Although there
are exceptions, the ‘general rule’ is that a guilty mind is ‘a necessary element
in the indictment and proof of every crime.’” Elonis, 575 U.S. at ___, 135 S.Ct.
at 2009 (quoting Balint, 258 U.S. at 251).
    If a statute is silent regarding the required mens rea we must seek to de-
termine whether Congress expressly or implicitly purposefully omitted the
requirement, and, if we determine that it was purposefully omitted, we must
“respect that legislative intent.” United States v. Haverty, 76 M.J. 199, 203-04
(C.A.A.F. 2017) (citing Gifford, 75 M.J. at 143-44). On the other hand, if the
statute is silent regarding the required mens rea, and we determine Con-


   8 Although Elonis was decided a year and a half before the appellant’s trial, the
appellant did not raise the issue of the mens rea requirement at trial.



                                           6
                      United States v. Patrick, No. 201700178


gress, “either expressly or implicitly,” intended the statute “to have a particu-
lar mens rea requirement[,]” then [we] must construe the statute accordingly.
Haverty, 76 M.J. at 204 (citing Elonis, 575 U.S. ___, 135 S.Ct. at 2009-10;
Staples, 511 U.S. at 606). However, “psychoanalyzing those who enacted” Ar-
ticle 120(b)(1)(B), UCMJ, is not required here because we can determine the
mens rea of the offense with which the appellant was charged and convicted
“by examining the text” of the statute. Carter v. United States, 530 U.S. 255,
271 (2000).
   The Article 120(b), UCMJ, offenses of which the appellant was convicted
are not silent as to mens rea. 9 Because the sexual act alleged was the digital
penetration of LCDR LS’s vulva, the government was required to prove be-
yond a reasonable doubt that the appellant committed the alleged sexual act.
That he did so either without her consent, or when he knew or reasonably
should have known she was asleep, unconscious or otherwise unaware. And
that the sexual act was done by the appellant with the “intent to abuse, hu-
miliate, harass, or degrade any person,” or “to arouse or gratify the sexual
desire of any person.” Article 120(g)(1)(B), UCMJ.
    As the specific mens rea of the bodily harm element of this offense is con-
tained within the statutory definition of the term “sexual act,” we need not
read an additional mens rea requirement into the offense. 10 Accordingly, we
find that the military judge properly instructed the members on the required
mens rea for the offense charged. This AOE is without merit.




    9 Our review of the mens rea requirement for Article 120(b)(1)(B), UCMJ, offenses
is limited to the specific facts of this case and the manner in which the appellant’s
offenses were charged here—sexual assault by digital penetration of the victim’s vul-
va without her consent. We have not and do not address the application of Elonis
where the manner of sexual assault is charged under Article 120(b)(1)(B) as penile
penetration of the victim’s vulva without consent. Nor do we address situations
where the sexual act and bodily harm are alleged as different acts.
    10 As our sister court of criminal appeals did in United States v. Rivera, No.
20160393, 2017 CCA Lexis 740 (A. Ct. Crim. App. 28 Nov. 2017) (unpub. op.) rev. de-
nied, 77 M.J. 313 (C.A.A.F. 2018), we too “reject [the] appellant’s assertion that ‘lack
of consent’ is a material element of the crime of sexual assault . . . requiring a sepa-
rate mens rea. Consistent with our superior court, we believe it is more precise to
treat the ‘nonconsensual’ requirement [of Article 120(b)(1)(B), UCMJ,] as a potential
subsidiary fact with respect to the element of bodily harm rather than a distinct ele-
ment of the offense.” Rivera, 2017 CCA LEXIS 740 at 7 note 3. See United States v.
Neal, 68 M.J. 289, 301-02 (C.A.A.F. 2010) (interpreting the 2006 version of Article
120, UCMJ, to allow “treating evidence of consent as a subsidiary fact potentially
relevant to a broader issue in the case, such as the element of force.”).



                                             7
                    United States v. Patrick, No. 201700178


B. Admission of DNA and sleep disorder expert testimony
    For the first time on appeal, the appellant asserts that it was plain error
to admit the following portions of the DNA expert’s testimony: (1) that his
DNA findings were consistent with penetration without ejaculation; and
(2) that it was 18 times more likely that the male DNA found inside
LCDR LS’s vulva came from the appellant or a paternal male relative than
from a randomly selected male.
    He also asserts, again for the first time on appeal, that it was plain error
to admit portions of the sleep disorder expert’s testimony. Specifically, the
appellant avers it was error to allow the sleep disorder expert to opine that
the most likely explanation for LCDR LS’s inability to remember what hap-
pened between the time she fell asleep and when she awoke to the sexual as-
sault was that she was asleep.
    When an appellant has failed to object to the testimony provided by an
expert witness, he has forfeited his right to claim the error on appeal absent
plain error. United States v. Raya, 45 M.J. 251, 253 (C.A.A.F. 1996) (citation
omitted); see also United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014)
(holding the same).
    “Plain error is established when: (1) an error was committed; (2) the error
was plain, clear, or obvious; and (3) the error resulted in material prejudice to
substantial rights.” United States v. Hardison, 64 M.J. 279, 281 (C.A.A.F.
2007). The burden is on the appellant to show all three prongs of the test are
satisfied. United States v. Bungert, 62 M.J. 346, 348 (C.A.A.F. 2006). We re-
view for plain error de novo. United States v. Mullens, 69 M.J. 113, 116
(C.A.A.F. 2010).
    MILITARY RULE OF EVIDENCE (MIL. R. EVID.) 702, MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2016 ed.), allows a witness to testify as an expert
on a particular subject matter if the witness is qualified to do so based on his
or her knowledge, skill, experience, training, or education regarding that sub-
ject. The testimony provided by the expert must: (1) be helpful to the trier of
fact in understanding the evidence or in determining a fact in issue; (2) be
based on sufficient facts or data; (3) be the product of reliable principles and
methods; and (4) in providing his testimony, the expert must reliably apply
those principles and methods to the facts of the case. MIL. R. EVID. 702. If the
expert testifies in the form of an opinion, that opinion may be based “on facts
or data in the case that the expert has been made aware of or personally ob-
served.” MIL. R. EVID. 703.
   The proponent of expert testimony must establish: (1) the qualifications of
the expert; (2) the subject matter of the expert testimony; (3) the basis for the
expert testimony; (4) the relevance of the testimony; (5) the reliability of the


                                         8
                      United States v. Patrick, No. 201700178


testimony; and (6) the probative value of the testimony. United States v.
Houser, 36 M.J. 392, 397 (C.M.A. 1993). “As gatekeeper, the trial court judge
is tasked with ensuring that an expert’s testimony both rests on a reliable
foundation and is relevant.” United States v. Sanchez, 65 M.J. 145, 149
(C.A.A.F. 2007). In performing this gatekeeping function, four factors a judge
may use to determine the reliability of expert testimony are:
         (1) whether a theory or technique can be or has been tested;
         (2) whether the theory or technique has been subjected to peer
         review and publication; (3) the known or potential rate of error
         in using a particular scientific technique and the standards
         controlling the technique’s operation; and (4) whether the theo-
         ry or technique has been generally accepted in the particular
         scientific field.
Id. (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-
94 (1993)).
    It is not necessary to satisfy every Daubert or Houser factor as “the in-
quiry is ‘a flexible one,’” and “the factors do not constitute a ‘definitive check-
list or test.’’’ Sanchez, 65 M.J. at 149 (quoting Daubert, 509 U.S. at 593-94).
Although a Daubert hearing is not required every time an expert witness is
called to testify, the military judge is obligated to take an active “gatekeeper”
approach when the proffered evidence is “called sufficiently into question.”
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999).

  1. DNA expert testimony
    The DNA expert testimony complained of by the appellant was provided
by the government’s expert witness, Mr. T. Despite being provided his own
DNA expert assistant who was also listed as a possible expert witness, 11 the
appellant never challenged or objected to Mr. T’s credentials as an expert in
the field of DNA testing and analysis, or the testimony he provided at trial.
Hence, the military judge was never called upon to place his Houser or Daub-
ert analysis on the record.
    Our review of the record and pleadings in the case reveals that the appel-
lant does not challenge or question the expert testimony provided by Mr. T on
any Daubert basis. Nor does he claim that any of the first three Houser fac-
tors went unsatisfied. Instead, he argues that the expert’s testimony—that
his findings were consistent with penetration without ejaculation—was unre-
liable because it was not based on the scientific facts and data developed by



   11   See AE XXV.



                                          9
                         United States v. Patrick, No. 201700178


the DNA testing in this case. The appellant characterizes Mr. T’s testimony
as “pseudo-scientific speculation” 12 that was “not helpful to the finder of fact
because it was wrong.” 13 Additionally, he argues the probative value of the
expert’s testimony regarding the statistical probabilities of the male DNA
found on the external swab of LCDR LS’s vulva was outweighed by its likeli-
hood to mislead the members. Accordingly, he avers Houser’s fifth and sixth
factors and its corresponding MIL. R. EVID. 702 requirements were not satis-
fied.

         a. “Consistent with penetration without ejaculation” testimony
    When questioned by the trial counsel whether his findings were con-
sistent with the proposition of “penetration [of LCDR LS’s vagina 14] but no
ejaculation inside [of it,]” Mr. T acknowledged that they were. 15 We note that
the trial counsel did not ask Mr. T if his findings were consistent with the
penetration of LCDR LS’s vulva by the appellant’s finger or penis without the
appellant ejaculating in her—nor did Mr. T provide such an opinion. We also
note, although not complained of by the appellant, that Mr. T additionally
testified that his findings were also not inconsistent with “consensual non-
penetration sexual activity.” 16
    The evidence developed on the record indicates that, although the appel-
lant’s own SAFE exam revealed the presence of his semen, no semen was dis-
covered on any items of evidence obtained during LCDR LS’s SAFE. Despite
the absence of semen on items obtained during LCDR LS’s SAFE, male DNA
was found on the internal swab of LCDR LS’s vaginal canal. Although that
male DNA was not of sufficient quantity to develop a DNA profile for compar-
ison to the appellant’s reference DNA profile, it was found in LCDR LS’s body




   12   Appellant’s Brief of 8 Jan 2018 at 28.
   13   Appellant’s Brief at 27.
   14  Throughout trial all counsel, LCDR LS, and other witnesses often used the
term “vagina.” The vagina is “the canal in the female, extending from the vulva to the
cervix uteri, which receives the penis in copulation. Richard Slone, The Slone-
Dorland Annotated Medical-Legal Dictionary, 764 (1987). The vulva is the “external
genital organs of the female, including the labia majora, labia minora [the labia ma-
jora and minora are commonly referred to as the lips of the vulva], mons pubis, bulb
of the vestibule, vestibule of the vagina, greater and lesser vestibular glands, and
vaginal orifice.” Id. at 138.
   15   Record at 923.
   16   Id. at 927.



                                                 10
                      United States v. Patrick, No. 201700178


at a location where “male DNA doesn’t suddenly appear” and “has to be in-
serted in some way.” 17
    Regarding the male DNA found on the internal swab of LCDR LS’s vagi-
nal canal, Mr. T testified that his findings could not indicate whether there
was penetration of LCDR LS’s vagina; whether the male DNA on the internal
swab resulted from sexual activity—consensual or nonconsensual; or wheth-
er, if LCDR LS’s vagina had been penetrated, it was by a penis or finger. Our
review of the record does not reveal that Mr. T ever attempted to link or asso-
ciate the semen on the evidence obtained from the appellant’s SAFE with the
penetration of LCDR LS’s vulva.
     We do not find Mr. T’s testimony to be pseudo-scientific speculation. To
the contrary, we find his testimony to be well grounded in the facts and data
resulting from his testing and presented accordingly. He testified that he
found male DNA and where he found it. He further testified that he could not
conclusively state the manner or mode by which the DNA arrived at the loca-
tion it was found and that both the prosecution’s and the defense’s proposi-
tions of how the DNA evidence in this case arrived at its ultimate locations
were not inconsistent with his findings. Furthermore, upon review of the en-
tire record, we find Mr. T was a qualified expert in the field of DNA testing
and analysis who testified on matters he was qualified by reason of
knowledge, skill, experience, training, and education to testify. His testimony
was helpful to the trier of fact in understanding the DNA evidence and how it
fit or did not fit into the evidentiary context of this case. Finally, we conclude
the probative value of his testimony was not outweighed by other considera-
tions.
   We conclude that there was no error, let alone plain or obvious error, in
the admission of this expert testimony. This assignment of error is without
merit.

         b. DNA statistical probabilities testimony
    The appellant also raises as error that Mr. T’s testimony that the appel-
lant, or a male paternal relative, is statistically 18 times more likely to be the
contributor of the DNA profile found in LCDR LS’s vulva than a randomly
selected male was misleading.
   Before trial, the government gave notice to the appellant that they in-
tended to offer the results of the DNA testing performed on evidence obtained
during the SAFEs of both the appellant and LCDR LS by filing a motion in



   17   Id. at 924.



                                         11
                      United States v. Patrick, No. 201700178


limine to pre-admit the evidence. Attached to this motion was the summa-
rized and detailed report of the testing and results—which included the like-
lihood ratio statistical probability calculations about which Mr. T would later
testify at trial. The appellant did not file a response in opposition to the mo-
tion.
    The statistical probability about which the appellant now complains aris-
es from Mr. T’s testimony concerning the results he obtained after testing the
male DNA found on the external swab 18 of LCDR LS’s vulva. Though the
DNA on the internal swab previously discussed was not sufficient in quantity
to develop a profile for reference comparison, the external swab did contain a
sufficient quantity to develop a comparison male profile. Upon comparison of
this profile to the reference profile of the appellant, Mr. T testified it was “18
times more likely” that the male DNA on the external swab came from the
appellant or one of his paternal male relatives than if he had come “from a
randomly selected male.” 19 The appellant did not object to or challenge this
likelihood ratio statistical frequency testimony.
    As our superior court has noted, “[e]vidence of statistical probabilities is
not only basic to DNA analysis, but also essential to the admissibility of that
analysis. . . . [W]ithout evidence of statistical frequencies, DNA evidence is
meaningless and would not be admissible.” Allison, 63 M.J. 365, 369
(C.A.A.F. 2006) (internal quotation marks and citations omitted). The likeli-
hood ratio is one of the three statistical probability calculations delineated by
the Scientific Working Group on DNA Analysis Methods (SWGDAM) and
used by DNA testing and analysis expert witnesses to provide the fact-finder
with meaning and a mathematical context within which to evaluate their sci-
entific findings. See United States v. Henning, 75 M.J. 187, 189-90 (C.A.A.F.
2016) 20 (referencing SWGDAM’s delineation of the likelihood probability ratio
as one of the three acceptable statistical probability calculations).



   18 Although referred to as the “external vaginal swab,” this swab was obtained by
swabbing the interior of the labia majora—between the labia majora and labia mino-
ra—and inside the labia minora. Hence, the swab was obtained by rubbing areas all
contained “inside the lips of the vagina—inside the lips of the vulva.” Record at 887;
PE 1.
   19   Id. at 924.
   20 We note the appellant cites to Henning and implicitly suggests that our superi-
or court suppressed a DNA match because of its relatively low probability of implicat-
ing the appellant as a contributor to the DNA profile. This was not the case. In Hen-
ning, the court was dealing with the issue of whether the military judge had commit-
ted an abuse of discretion by suppressing the probability results after concluding the
formula used by the expert was a modified formula—notably not a modified likeli-



                                           12
                      United States v. Patrick, No. 201700178


    We find nothing in the record to suggest that the likelihood ratio testified
to by Mr. T concerning the male DNA profile that was found on the external
swab was misleading to the members. This is especially so when considering
the other likelihood ratios to which he testified concerning other DNA evi-
dence admitted at trial. Mr. T testified that he developed DNA profiles from
three items of evidence obtained during the appellant’s SAFE—swabs from
his pubic mound, and the tip and shaft of his penis. Mr. T testified that these
likelihood ratios were 170 quadrillion (pubic mound), 20 quadrillion (penis
shaft), and 13,000 (penis tip) times more likely that the DNA profile originat-
ed from the appellant and LCDR LS than if it originated from the appellant
and an unknown female—yet the members acquitted the appellant of sexual-
ly assaulting LCDR LS by penetrating her vulva with his penis. Given the
member’s findings, we are not convinced they were misled by the likelihood
ratio statistical probability testimony of Mr. T.
   We conclude that there was no error, let alone plain or obvious error, in
the admission of this expert testimony. This assignment of error is without
merit.

  2. Sleep disorder expert testimony
   The appellant argues that it was plain error to allow the government’s
expert witness in sleep disorders, LTC W, to testify that the most likely ex-
planation for LCDR LS’s lack of memory between the time she fell asleep and
awakened is that she was asleep. The appellant argues LTC W’s opinion was
not based on facts or data, but his opinion was based on personal feelings.
The appellant also avers that this testimony was unfairly prejudicial, lacked
probative value, and was improper human lie-detector testimony. 21 We disa-
gree.

        a. Was the opinion based on sufficient facts and data, and was it the
product of the reliable application of the principles and methods to the facts
of this case?
   We begin our analysis with the following observations. Our review of the
record convinces us that no motion or objection was lodged by the appellant


hood ratio formula—and the government had failed to meet its burden in establish-
ing the modified formula’s reliability under Daubert. As stated by the court, “[w]e do
not hold that the [expert’s] modified formula is unreliable. We only hold it was not an
abuse of discretion for the military judge to find the government had not met its bur-
den of showing the formula was reliable in this case.” Henning, 75 M.J. at 192, n 16.
   21 The appellant did not object to LTC W’s credentials as an expert or his trial
testimony.



                                            13
                   United States v. Patrick, No. 201700178


at trial to prohibit LTC W from rendering the opinion about which he now
complains. We conclude that LTC W was qualified—in accordance with his
knowledge, skill, experience, training, or education—to testify as an expert
witness on issues involving sleep and the formation of memories. MIL. R.
EVID. 701 and 702. An element of the appellant’s offense charged as a viola-
tion of Article 120(b)(2), UCMJ, required that the government prove that, at
the time of the sexual contact, LCDR LS was asleep or unconscious—thus
unable to consent to the alleged sexual act. As such, we also conclude that
LTC W’s specialized knowledge concerning sleep architecture, the effect of
alcohol and other factors on that architecture, and when a person is or is not
forming memories would be helpful to the members in determining whether
LCDR LS was actually asleep and not forming memories at the time of the
sexual act. MIL. R. EVID. 702(a).
    Before testifying at trial, LTC W reviewed a summary of LCDR LS’s in-
terview with Naval Criminal Investigative Service (NCIS) agents describing
the circumstances surrounding the sexual assault, a video of the interview
from which the summary was prepared, and observed LCDR LS’s testimony
at trial. After doing so, he testified that the most likely explanation for
LCDR LS not having any memory from the time she went to sleep until she
was awakened was that she was asleep. LTC W then went on to explain dur-
ing his direct and cross-examination—generally referring to the numerous
peer-reviewed, and published studies on the topics of sleep architecture and
memory formation—the different stages of sleep. When those stages occur
during normal sleep patterns. A person’s ability to respond to external stimu-
li during those stages of sleep. The effect of sleep and alcohol on the for-
mation of memories. Other factors that could affect sleep and ability to re-
spond to stimuli during sleep such as stress, circadian rhythm, age, gender,
and other medical conditions. Other sleep related disorders such as parasom-
nia and sexsomnia; and the likelihood of a person who is asleep to be able to
engage in conversation, ask for and drink water, and make conscious deci-
sions. LTC W acknowledged several times that being asleep was not the only
possible explanation for why LCDR LS had no memory of the sexual act, and
that he could not conclusively state that her lack of memory was attributable
to her being asleep. But, given all the facts and data he had been provided—
to include those pointed out by the defense in cross-examination—in his opin-
ion, the most likely explanation for why LCDR LS had no memory of the sex-
ual act was because she was asleep.
    We have not limited our review of this issue to testimony provided on the
merits. In a pretrial Article 39(a), UCMJ, session challenging the admissibil-
ity of LCDR LS’s BAC, the military judge heard the dueling testimony of the
government’s and the defense’s sleep disorder experts regarding whether
LCDR LS’s BAC was a relevant factor to be considered. The defense expert


                                       14
                    United States v. Patrick, No. 201700178


testified that there are no scientific studies addressing LCDR LS’s specific
BAC from which he could reasonably draw any conclusions regarding its ef-
fect on sleep. However, he did acknowledge that there are peer-reviewed, and
published studies examining the effects of alcohol on all stages of sleep that
establish that alcohol does affect sleep. He also acknowledged that alcohol is
a sedative and those with alcohol in their system tend to fall to sleep faster
and may be more difficult to wake depending on their stage of sleep at the
time. Despite not having their expert testify concerning the impact of alcohol
on memory formation, the defense did submit several scholarly articles ad-
dressing this issue. In response, LTC W, although agreeing that there were
no specific scientific studies addressing LCDR LS’s specific BAC, testified
that there were scientific studies on levels above and below her BAC and
textbooks generally covering the effects of alcohol on sleep from which ex-
perts could draw scientific conclusions about the physiological impacts of
such levels.
    The test we apply is a flexible one, and we find the conflict in the expert
testimony provided concerning LCDR LS’s specific BAC does not establish
that the principles and methods relied upon by LTC W in forming his opinion
were unreliable. Nor do we find that he failed to reliably apply those princi-
ples and methods to the facts of this case. Having reviewed all the evidence
related to the effect of alcohol on sleep architecture and the ability to form
memories, we conclude that LTC W’s opinion and testimony were based on
sufficient facts or data. His opinion and testimony were grounded upon his
extensive practice, study, and experience on the stages of sleep and the phys-
iological effects of sleep. And his opinion and testimony were based upon his
observation of LCDR LS’s testimony, the review of her NCIS interview, as
well as consideration of the matters addressed by the defense in cross-
examination. See United States v. Flesher, 73 M.J. 303, 315 (C.A.A.F. 2014)
(discussing that MIL. R. EVID. 703 and Houser’s third factor allow an expert to
rely on personal knowledge, assumed facts, documents supplied by other ex-
perts, or even listening to the testimony at trial when forming his or her opin-
ion). Finally, in giving his opinion and testimony, LTC W employed the “same
level of intellectual rigor that characterizes the practice of an expert in the
relevant field.” Sanchez, 65 M.J. at 149 (quoting Kumho Tire Co., 526 U.S. at
152). The record does not support the appellant’s assertion that LTC W based
his opinion on his subjective personal feelings or unsupported speculation.
   We conclude that there was no error, let alone plain or obvious error, in
the admission of this expert testimony. This assignment of error is without
merit.




                                        15
                    United States v. Patrick, No. 201700178


       b. Human lie-detector testimony
    The appellant avers that LTC W provided impermissible human lie-
detector testimony when he testified that the most likely reason for LCDR LS
not remembering is because she was asleep. The appellant argues that this
testimony did nothing more than comment on the truthfulness of LCDR LS’s
prior testimony. We disagree.
    MIL. R. EVID. 704 states that “an [expert’s] opinion or inference otherwise
admissible is not objectionable just because it embraces an ultimate issue to
be decided by the trier of fact.” However, the expert is not permitted to ex-
press an opinion on the “ultimate issue” of a case. United States v. Anderson,
51 M.J. 145, 151 (C.A.A.F. 1999). Our superior court has also consistently re-
jected the admissibility of so-called human lie-detector testimony, which it
describes as “an opinion as to whether the person was truthful in making a
specific statement regarding a fact at issue in the case.” United States v.
Kasper, 58 M.J. 314, 315 (C.A.A.F. 2003). An expert is also not allowed to
provide an opinion that is the functional equivalent of declaring that a victim
should be believed. United States v. Birdsall, 47 M.J. 404, 410 (C.A.A.F.
1998).
    Here, the ultimate issue in this case was whether LCDR LS had been
sexually assaulted by the appellant—whether she was asleep or unconscious
was only one element of one of the offenses. LTC W did not express an opin-
ion as to whether LCDR LS had been sexually assaulted by the appellant.
His opinion was appropriately limited to why LCDR LS may not have had
any memory of the sexual act. Nor did LTC W opine or suggest that LCDR LS
should be believed. He readily admitted that there could be other explana-
tions for her lack of memory. We conclude that LTC W’s opinion was not of
the human lie-detector type. Any residual concerns we may have had that the
members would use LCT W’s testimony as such are assuaged by the military
judge’s instructions to the members. The military judge instructed the mem-
bers three times on how expert testimony should be received. Each time, he
warned them that such testimony was a mere aid to them, and that it was
their duty to determine the facts of the case and the credibility of the wit-
nesses. “Absent evidence to the contrary, [we] may presume that members
follow a military judge’s instructions.” United States v. Taylor, 53 M.J. 195,
198 (C.A.A.F. 2000) (citing United States v. Loving, 41 M.J. 213, 235
(C.A.A.F. 1994)) (additional citation omitted). We find nothing in the record
to suggest they failed to do so.
   We conclude that there was no error, let alone plain or obvious error, in
the admission of this expert testimony. This assignment of error is without
merit.



                                         16
                     United States v. Patrick, No. 201700178


C. Prosecutorial Misconduct
    The appellant complains for the first time on appeal that government
counsel committed prosecutorial misconduct during their closing and rebuttal
arguments by: (1) shifting the burden of proof to appellant; (2) calling the ap-
pellant a liar and disparaging his defense; (3) interjecting their personal be-
liefs and opinions, arguing facts not in evidence, and misrepresenting the
DNA evidence; (4) vouching for LCDR LS; and (5) asking the members to
base their findings on what others would think of them.
    It is a basic rule of our profession that a “prosecutor should not make ar-
guments calculated to appeal to improper prejudices of the trier of fact. The
prosecutor should make only those arguments that are consistent with the
trier’s duty to decide the case on the evidence, and should not seek to divert
the trier from that duty.” CRIMINAL JUSTICE STANDARDS FOR THE PROSECU-
TION FUNCTION Standard 3-6.8(c) (AM. BAR ASS’N 2015). 22

    “Prosecutorial misconduct occurs when trial counsel oversteps the bounds
of that propriety and fairness which should characterize the conduct of such
an officer in the prosecution of a criminal offense.” United States v. Hornback,
73 M.J. 155, 159 (C.A.A.F. 2014) (citations and internal quotation marks
omitted). “Prosecutorial misconduct can be generally defined as action or in-
action by a prosecutor in violation of some legal norm or standard, e.g., a con-
stitutional provision, a statute, a Manual rule, or an applicable professional
ethics cannon.” United States v. Meek, 44 M.J. 1, 5 (C.A.A.F. 1996) (citing
Berger v. United States, 295 U.S. 78, 88 (1935)).
    Prosecutorial misconduct in the form of improper argument is a question
of law we review de novo. United States v. Frey, 73 M.J. 245, 248 (C.A.A.F.
2014) (citing United States v. Marsh, 70 M.J. 101, 106 (C.A.A.F. 2011)). In
determining whether an argument is improper, we view the argument “with-
in the context of the entire court-martial. The focus of [the] inquiry should
not be on words in isolation, but on the argument as ‘viewed in context.’”
United States v. Baer, 53 M.J. 235, 238 (C.A.A.F. 2000) (quoting United
States v. Young, 470 U.S. 1, 16 (1985)). “[I]t is improper [for this court] to
‘surgically carve’ out a portion of the argument with no regard to its context.”
Baer, 53 M.J. at 238.
   When there is no objection to a comment made during argument, we re-
view the argument for plain error. United States v. Andrews, 77 M.J. 393, 401



   22  See Judge Advocate General Instruction 5803.1E, Rule 3.8(e)(6) (20 Jan. 2015)
(“To the extent consistent with these Rules, the ABA standards may be used to guide
trial counsel in the prosecution of criminal cases.”) (citations omitted).



                                          17
                     United States v. Patrick, No. 201700178


(C.A.A.F. 2018). Again, plain error is “established when: (1) an error was
committed; (2) the error was plain, or clear, or obvious; and (3) the error re-
sulted in material prejudice to substantial rights.” Hardison, 64 M.J. at 281.
The appellant has the burden of showing all three prongs of the test are satis-
fied. Bungert, 62 M.J. at 348. We are to use the plain error doctrine “sparing-
ly, solely in those circumstances in which a miscarriage of justice would oth-
erwise result.” United States v. Causey, 37 M.J. 308, 311 (C.M.A. 1993) (cita-
tions and internal quotation marks omitted). If improper argument is found,
we will reverse “only ‘when the trial counsel’s comments, taken as a whole
were so damaging that we cannot be confident that the members convicted
the appellant on the basis of the evidence alone.’” United States v. Sewell, 76
M.J. 14, 18 (C.A.A.F. 2017) (quoting Hornback, 73 M.J. at 160). In evaluating
counsel’s argument, our decision need not depend on whether any of trial
counsel’s arguments were, in fact, improper if we conclude the appellant has
failed to meet his burden of establishing prejudice. United States v. Erickson,
65 M.J. 221, 223-24 (C.A.A.F. 2007). To determine whether a counsel’s inap-
propriate comments rise to this level we consider: (1) the severity of the mis-
conduct; (2) any curative measures taken; and (3) the strength of the gov-
ernment’s case. United States v. Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005).
       Indicators of severity include (1) the raw numbers—the in-
       stances of misconduct as compared to the overall length of the
       argument; (2) whether the misconduct was confined to the trial
       counsel’s rebuttal or spread throughout the findings argument
       or the case as a whole; (3) the length of the trial; (4) the length
       of the panel’s deliberations; and (5) whether the trial counsel
       abided by any rulings from the military judge.
Id. (citation omitted).

  1. Burden shifting
    In a criminal prosecution, the Due Process Clause of the Fifth Amend-
ment establishes that “the government must prove a defendant’s guilt beyond
a reasonable doubt.” United States v. Lewis, 69 M.J. 379, 383 (C.A.A.F. 2011)
(citing United States v. Czekala, 42 M.J. 168, 170 (C.A.A.F. 1995)). This bur-
den never shifts to the defense. Any suggestion in argument that an accused
may have an obligation to produce evidence of his or her own innocence is
“error of constitutional dimension.” United States v. Mason, 59 M.J. 416, 424
(C.A.A.F. 2004). However, “[a] constitutional violation occurs only if either
the defendant alone has the information to contradict the government evi-
dence referred to or the [members] naturally and necessarily would interpret
the summation as comment on the failure of the accused to testify.” United
States v. Carter, 61 M.J. 30, 33 (C.A.A.F. 2005) (citations and internal quota-
tion marks omitted). Additionally, “[u]nder the invited response or invited

                                         18
                    United States v. Patrick, No. 201700178


reply doctrine, the prosecution is not prohibited from offering a comment that
provides a fair response to claims made by the defense.” Id. (citations and in-
ternal quotation marks omitted).
    The appellant now avers that by arguing that the members had heard no
evidence of consent, flirting, or interaction between the appellant and
LCDR LS, the trial counsel shifted the burden to him to prove that LCDR LS
did consent or that he reasonably believed she consented. We disagree.
    The offenses with which the appellant was charged required the govern-
ment to prove beyond a reasonable doubt that LCDR LS either did not con-
sent to the charged sexual act and bodily harm, or that she was incapable of
giving consent because she was asleep or unconscious at the time of the sexu-
al act. Additionally, because some evidence at trial had raised the possibility
that the appellant may have been mistaken as to LCDR LS’s consent, the
government was also required to prove beyond a reasonable doubt that any
mistake of fact as to LCDR LS’s consent held by the appellant was not rea-
sonable.
    At trial, the military judge properly instructed the members that: (1) the
law presumes the appellant to be innocent of the charges against him;
(2) when there is inconsistency between what the counsel say regarding the
instructions on the law and the court’s instructions, the members must follow
the court’s instructions; and (3) the burden of proof to establish the appel-
lant’s guilt is on the government and that burden never shifts to the appel-
lant to establish his innocence or to disprove any fact necessary to establish
an element of an offense.
    The trial counsel pointed out the absence of evidence of consent or mis-
take of fact as to consent. Neither the appellant nor LCDR LS were alone on
the night in question. Trial counsel was, therefore, not commenting on mat-
ters that would necessarily have to have been introduced by the appellant.
Testimony embracing the issues of consent and mistake of fact as to consent
was elicited by both the government and the defense when questioning
LCDR LS and other witnesses about LCDR LS’s and the appellant’s actions
and behaviors before, during, and immediately after the sexual acts at issue.
Thus, the absence of evidence of consent, and evidence that would support a
reasonable mistake of fact as to consent argued by the trial counsel were not
such that the appellant alone would be in possession of “the information to
contradict the government evidence referred to.” Carter, 61 M.J. at 33. (cita-
tions omitted). Additionally, trial counsel’s comments were in line with the
military judge’s instructions on consent, mistake of fact as to consent, and
reasonable doubt.
   Further, we are not persuaded that the members would “interpret the
summation as comment on the failure of the [appellant] to testify.” Id. at 33

                                        19
                       United States v. Patrick, No. 201700178


(citations and internal quotation marks omitted). Trial counsel’s argument
addressed the evidence raised through the examination of numerous govern-
ment and defense witnesses who provided extensive testimony of their obser-
vations of LCDR LS and the appellant. The record does not support the ap-
pellant’s contention that the government shifted the burden of proof to him to
prove his innocence.

   2. Calling the appellant a liar and disparaging his defense

         a. Calling the appellant a liar
    Calling the appellant a liar is “a dangerous practice that should be avoid-
ed.” Fletcher, 62 M.J. at 182 (citation and internal quotation marks omitted).
Trial counsel are expected to “comment on . . . conflicting testimony” in clos-
ing argument without using “language that [i]s more of a personal attack on
the defendant than a commentary on the evidence.” Id., at 183.
    However, describing a defendant as a liar does not equate to per se er-
ror. 23 Additionally, trial counsel are permitted to “forcefully assert reasonable
inferences from the evidence.” United States v. Coble, No. 201600130, 2017
CCA LEXIS 113, *10 (N-M. Ct. Crim. App. 23 Feb 2017) (unpub. op.) (quoting
Cristini v. McKee, 526 F.3d 888, 901 (6th Cir. 2008)). But, there is an “exceed-
ingly fine line which distinguishes permissible advocacy from improper ex-
cess” when commenting on the credibility of an accused. Fletcher, 62 M.J. at
182-83 (citations and internal quotation marks omitted). One factor in de-
termining if the trial counsel has crossed this line is whether the trial counsel
ties the comment to evidence in the record. Where the trial counsel has “ex-
plained why the jury should come to th[e] conclusion” that the appellant lacks
credibility, the Court may find permissible advocacy. Cristini, 526 F.3d at
902. If, however, the trial counsel’s statements are “unsupported by any ra-
tional justification other than an assumption that [the appellant] was guilty,”
and “not coupled with a more detailed analysis of the evidence adduced at
trial,” the comments turn improper. Hodge v. Hurley, 426 F.3d 368, 378 (6th
Cir. 2005). These untethered assertions “convey an impression to the jury
that they should simply trust the [government’s] judgment” that the accused
is guilty because the trial counsel “knows something [the jury] do[es] not.” Id.
    Here, the appellant did not testify at trial. During his rebuttal argument,
after observing that one of the defense’s theories was that LCDR LS lied


    23 See, e.g., Fletcher, 62 M.J. at 182-83 (finding trial counsel’s comments that
Fletcher’s testimony “was the first lie,” that he “had ‘zero credibility’ and that his tes-
timony was ‘utterly unbelievable’” were “not so obviously improper as to merit relief
in the absence of an objection from counsel.”).



                                              20
                          United States v. Patrick, No. 201700178


about not being able to remember the sexual act because she was asleep, trial
counsel argued, “[w]hat does it mean when somebody says, ‘I’ve just given her
water[’] when their DNA is inside someone’s vagina? It means they are ly-
ing.” 24 Despite the appellant’s claim, the trial counsel never called the appel-
lant a liar. Although the trial counsel did characterize the appellant’s oft-
repeated out-of-court explanation as a lie, in doing so the trial counsel ex-
plained, based upon the evidence before them, why the members should come
to the conclusion that the appellant’s statement lacked credibility.
    We conclude, therefore, that the trial counsel’s comments do not consti-
tute error because he “avoided characterizing [the appellant] as a liar” and
the comment reasonably questioned “the plausibility of [the appellant’s] sto-
ry.” Fletcher, 62 M.J. at 183. It was not a personal attack on the appellant.

         b. Disparaging the defense
    It is also “improper for a trial counsel to attempt to win favor with the
members by maligning defense counsel.” Id. at 181 (citations omitted). Doing
so detracts from the dignity of the proceedings and has the potential to turn
the court-martial into “a popularity contest” with the members deciding the
case, not on the facts and law of the case, but “based on which lawyer they
like better.” Id.
    In addition to “detract[ing] from the dignity of judicial proceedings[,]” per-
sonal attacks can “cause the [trier of fact] to believe that the defense’s charac-
terization of the evidence should not be trusted, and, therefore, that a finding
of not guilty would be in conflict with the facts of the case.” United States v.
Xiong, 262 F.3d 672, 675 (7th Cir. 2001). This violates the core legal standard
of criminal proceedings, that the government always bears the burden of
proof to produce evidence on every element and persuade the members of
guilt beyond a reasonable doubt. Czekala, 42 M.J. at 170; RULE FOR COURTS-
MARTIAL (R.C.M.) 920(e)(5)(D), MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2016 ed.). However, a trial counsel is permitted to make “a fair re-
sponse” to claims made by the defense. United States v. Gilley, 56 M.J. 113,
120 (C.A.A.F. 2001) (quoting United States v. Robinson, 485 U.S. 25, 32
(1988)).
    Here, the appellant asserts that the trial counsel’s argument disparaged
the defense by characterizing the defense efforts as attempts to distract the
members from the facts of the case, and referring to the defense theories as
fanciful, a neat trick, and ridiculous. We disagree. These statements permis-
sibly address the multiple theories of reasonable doubt offered by the defense


   24   Record at 1170.



                                            21
                           United States v. Patrick, No. 201700178


by arguing the implausibility of the appellant’s version of the facts. Addition-
ally, when considering the full context of the argument, the trial counsel
made these statements while explicitly reminding the members that the de-
fense did not have the burden of proof: “Now defense does not have to put on
any case at all. We have the burden of proof, but when they say ridiculous
things like this, we can kick the tires on it, okay.” 25
   We conclude that trial counsel’s comments about the defense did not shift
the burden of proof, nor do they rise to the level of prosecutorial misconduct.

   3. Interjecting trial counsel’s opinion or belief, arguing facts not in evidence,
and misrepresenting the DNA evidence
    Arguments of counsel are not evidence. Fletcher, 62 M.J. at 183 (citation
omitted). Despite arguments not being evidence, counsel are still not allowed
to argue “material misstatements of fact.” Davis v. Zant, 36 F.3d 1538, 1548
n.15 (11th Cir. 1994 (citation omitted). In making argument, a prosecutor
“may strike hard blows,” but may not “strike foul ones.” Berger, 295 U.S. at
88. They are permitted to “argue the record, highlight any inconsistencies or
inadequacies of the defense, and forcefully assert reasonable inferences from
the evidence.” Cristini, 526 F.3d at 901. But the prosecutor must not express
a “personal belief or opinion as to the truth or falsity of any testimony or evi-
dence. Such beliefs or opinions are merely a form of unsworn, unchecked tes-
timony.” United States v. Horn, 9 M.J. 429, 430 (C.M.A. 1980) (citation and
internal quotation marks omitted). “[A] court-martial must reach a decision
based only on the facts in evidence.” Fletcher, 62 M.J. at 183 (citation omit-
ted). However, counsel are permitted to comment during argument “on con-
temporary history or matters of common knowledge . . . [of] which men in
general have a common fund of experience and knowledge, through data no-
toriously accepted by all.” Id. (citations and internal quotation marks omit-
ted).

          a. Interjecting personal opinion or belief
    The appellant asserts that trial counsel’s argument that LCDR LS was
not facing an investigation for a false report of sexual assault constituted an
impermissible personal opinion or belief. We disagree. Our review of the rec-
ord reveals that through the cross-examination of LCDR LS, the appellant’s
trial defense counsel had introduced the theory that LCDR LS may have lied
about being sexually assaulted to avoid disciplinary action for having a sexu-
al relationship with a junior officer—and later argued the avoidance of disci-



    25   Record at 1164.



                                             22
                     United States v. Patrick, No. 201700178


plinary action as a motive for her to fabricate the claim of sexual assault. 26
We find that the comments complained of here were not such that they were
“unsworn, unchecked testimony.” Horn, at 430. Instead, the comments were
fair responses to the defense claim that LCDR LS had lied about being sex-
ually assaulted to avoid disciplinary action.

        b. Arguing facts not in evidence
    The appellant asserts that counsel’s comments that women and men who
engage in consensual sexual encounters do not act as LCDR LS and the ap-
pellant acted in the immediate aftermath of that encounter is error. He also
asserts that it is error for trial counsel to argue how a person may act in an
alcohol induced blackout. He argues this is error because these comments
were unsupported by the record. The appellant further complains the trial
counsel urged the members to substitute their common sense and knowledge
of the ways of the world for evidence. We disagree.
    “As case law and the Military Judge’s Benchbook have long recognized,
members are expected to use their common sense in assessing the credibility
of testimony as well as other evidence presented at trial.” United States v.
Frey, 73 M.J. 245, 250 (C.A.A.F. 2014) (citations omitted). Here, the military
judge properly instructed the members that they were permitted and ex-
pected to use their common sense and knowledge of the ways of the world in
evaluating the testimony and evidence before them.
    The comments at issue were made by government counsel when discuss-
ing the testimonial evidence presented on LCDR LS’s and the appellant’s
demeanor, statements, actions, and reactions in the immediate aftermath of
the assault, and after the members had heard expert testimony concerning
the impact of alcohol on memory formation. Additionally, all members were
married and would have a common fund of experience and knowledge on the
reactions of men and women to consensual sexual encounters. When viewed
in context of the entire argument, the evidence presented at trial, and the
military judge’s instructions, the comments were not a request by govern-
ment counsel for the members to substitute their common sense and
knowledge of the ways of the world for evidence, but a reminder to the mem-
bers that they should use their common sense and knowledge in evaluating
the credibility of the evidence on the issues before of them.




   26 We also observe that during voir dire, trial defense counsel also questioned the
members regarding whether they believed a person alleging a sexual assault may
have falsely done so to avoid disciplinary action. See Record at 284.



                                           23
                    United States v. Patrick, No. 201700178


       c. Misrepresenting the DNA evidence
    The appellant also complains that government counsel misrepresented
the DNA evidence by arguing the combination of the male DNA found in
LCDR LS’s vaginal canal, and the appellant’s DNA found inside her vulva
proved penetration of LCDR LS’s vulva by the appellant. The appellant ar-
gues that this argument is a misrepresentation of the DNA evidence because:
(1) Mr. T testified that there was no way to definitively determine how the
male DNA ended up in LCDR LS’s vaginal canal; (2) the male DNA found in-
side LCDR LS’s vulva did not match the appellant’s, only that it included him
as one of many possible contributors; and (3) that penetration was unsup-
ported by the evidence presented. We disagree.
    We conclude that the comments are not a misrepresentation of the DNA
evidence, but are reasonable inferences from the evidence of record. First,
Mr. T testified that, although he could not say definitively how it got there,
the male DNA found in LCDR LS’s vaginal canal was found in a location
where male DNA did not just suddenly or spontaneously appear, and there
must be some form of penetration for the male DNA to be in that location.
Second, Mr. T testified that the male DNA found on the inside of LCDR LS’s
vulva—between the lips of the vulva—was 18 times more likely to be the ap-
pellant’s or one of his paternal male relatives than from a randomly selected
male. And third, although he acknowledged there were other explanations for
how the male DNA—including the male DNA for which the appellant was a
possible contributor—arrived at its ultimate destination, Mr. T confirmed
that his findings were consistent with penetration of the vulva.

  4. Vouching
   It is well-established that it is the “exclusive province of the court mem-
bers to determine the credibility of witnesses.” United States v. Knapp, 73
M.J. 33, 34 (C.A.A.F. 2014) (citation and internal quotation marks omitted).
To protect the integrity of this province, the “[trial counsel] should not imply
special or secret knowledge of the truth or of witness credibility, because
when the prosecutor conveys to the jurors his personal view that a witness
spoke the truth, it may be difficult for them to ignore that witness’ views.”
United States v. Andrews, No. 201600208, 2017 CCA LEXIS 283, at *23 (N-
M. Ct. Crim. App. 27 Apr 2017) (unpub. op.) (citations and internal quotation
marks omitted) aff’d, 77 M.J. 393 (C.A.A.F. 2018). Thus, “[i]mproper vouching
occurs when the trial counsel places the prestige of the government behind a
witness through personal assurances of the witness’s veracity.” Fletcher, 62
M.J. at 180 (citation and internal quotation marks omitted).
  Closing arguments and rebuttal “may properly include reasonable com-
ment on the evidence in the case, including references to be drawn therefrom,


                                        24
                        United States v. Patrick, No. 201700178


in support of a party’s theory of the case.” R.C.M. 919(b). Specifically, gov-
ernment counsel may “comment about the testimony, conduct, motives, inter-
ests, and biases of witnesses to the extent supported by evidence.” R.C.M.
919(b), Discussion. Thus, it is not improper for trial counsel to “argu[e],”
while “marshall[ing] evidence,” that a witness “testified truthfully,” particu-
larly after the defense “vigorously attacked” the witness’s “testimony.” United
States v. Chisum, 75 M.J. 943, 953 (A.F. Ct. Crim. App. 2016).
    The appellant asserts trial counsel improperly vouched for LCDR LS by
characterizing the notion that she consented as ridiculous, stating she was
never impeached, and never shaded her testimony to help the case. By doing
so, he argues the trial counsel placed the weight of the government behind
LCDR LS.
   When viewed in context, the complained-of comments by trial counsel
were made following the civilian defense counsel’s lengthy closing argument
in which he repeatedly attacked LCDR LS’s credibility for having claimed no
memory of the sexual acts at issue. Indeed the defense counsel first argued
that LCDR LS was not being truthful 27 and that her claims “just aren’t
true.” 28 As the Supreme Court has said, “it is important that both the defend-
ant and prosecutor have the opportunity to meet fairly the evidence and ar-
guments of one another.” United States v. Robinson, 485 U.S. 25, 33 (1988).
Here, the trial counsel forcefully argued the facts in evidence and fair infer-
ences therefrom that supported and corroborated LCDR LS’s claim of lack of
consent, inability to give consent, and inability to remember.

   5. Asking the members to base their findings on what people would think of
them.
    The appellant urges this court to conclude that trial counsel’s argument
commanded the members to base their findings not on the evidence and the
instructions of the military judge, but on what others would think of them.
We decline to do so.
    It is the duty of a court-martial member to determine whether an accused
has been proven guilty of an offense based on the evidence presented at trial
and in accordance with the instructions provided by the military judge.
R.C.M. 502(a)(2). Here, the military judge emphasized this duty when he in-
structed the members that it was his duty as the military judge to instruct
them on the law and it was their duty as members to determine the facts,



    27   Record at 1117, 1124, and 1125.
    28   Id. at 1131.



                                           25
                          United States v. Patrick, No. 201700178


and—after applying the law to the facts—determine the guilt or innocence of
the appellant. 29 The military judge further instructed the members that “it is
[their] duty under the law to reach [their] own determination as to whether
the [appellant] is guilty or not guilty, and that determination may not be in-
fluenced by the views of any person outside the deliberation room.” 30
    In the complained-of comments, the trial counsel imagined a hypothetical
discussion. This hypothetical discussion takes place after the court-martial
has concluded and is between the member and his or her spouse or loved
one—someone the member would consider a reasonable person. In that dis-
cussion the member tells another person that he was a member of a court-
martial. When asked what the court-martial was about, the member explains
that it was about a guy who walked into a room at 0400 and sees a woman he
barely knows and puts his finger and penis inside of her. The guy’s DNA is
found inside the woman and her DNA is on his penis. The hypothetical dis-
cussion ends with the other person asking the member “[w]hat do you think
happened?” 31 The trial counsel then answers the ending question by arguing,
“It sounds like a sexual assault, and it sounds like that because that’s what
happened.” 32 Although poorly contrived, the hypothetical was nothing more
than a simplified summary of the facts before the members. When considered
in context, the trial counsel’s comments were aimed at showing the members
why they should find that the government’s version of the facts—that the ap-
pellant had sexually assaulted LCDR LS—was objectively reasonable, and
the appellant’s version of the facts—that LCDR LS had consented to the sex-
ual acts or the appellant reasonably believed that she had consented—was
objectively unreasonable.
    We find no support in the record for the appellant’s assertion that the tri-
al counsel asked or “command[ed]” 33 the members to base their decision on
what others may think of them. In the absence of evidence to the contrary, we
presume the members followed the instructions of the military judge that it
was their duty, and their duty alone, to determine the guilt or innocence of
the appellant based on the evidence presented at trial. Taylor, 53 M.J. at 198
(citations omitted). We find no error, plain or otherwise, in the complained-of
comments.


   29   Record at 1035.
   30   Id. at 1036 (emphasis added).
   31   Id. at 1143-44.
   32   Id. at 1144.
   33   Appellant’s Reply Brief of 25 Jun. 2018 at 12.



                                             26
                    United States v. Patrick, No. 201700178


    To summarize our assessment of the alleged prosecutorial misconduct—
we do not find legal error in the trial counsel’s closing or rebuttal arguments
where, as here, the counsel zealously responded to the defense’s multiple the-
ories of the case and assertions and implications made throughout the trial
and closing argument. Although at times trial counsel’s argument to the
members was not artfully expressed, we do not find it to be “undignified and
intemperate, containing improper insinuations and assertions calculated to
mislead the [finder of fact].” Berger, 295 U.S. at 85.

D. Admitting testimony of LCDR LS’s demeanor and BAC
    The appellant asserts that it was error for the military judge to admit into
evidence—over defense objection—testimony concerning LCDR LS’s demean-
or during her sexual assault forensic examination, and testimony concerning
LCDR LS’s BAC. We disagree.
    MIL. R. EVID. 401 defines “relevant evidence” as “evidence having any
tendency to make a fact of consequence “more or less probable than it would
be without the evidence.” As a general rule, a party has a right to have ad-
mitted “all relevant evidence”; on the other hand, “evidence which is not rele-
vant is not admissible.” MIL. R. EVID. 402. Under MIL. R. EVID. 403, a mili-
tary judge may exclude relevant evidence “if its probative value is substan-
tially outweighed by a danger of . . . unfair prejudice, confusing the issues,
misleading the members, undue delay, wasting time, or needlessly presenting
cumulative evidence.” We review a military judge’s rulings on the admissibil-
ity of evidence for “abuse of discretion.” United States v. Richards, 76 M.J.
365, 369 (C.A.A.F. 2017). “An abuse of discretion occurs when we determine
that the military judge’s findings of fact are clearly erroneous or that he mis-
apprehends the law.” Richards, 76 M.J. at 369 (quoting United States v. Clay-
ton, 68 M.J. 419, 423 (C.A.A.F. 2010)). We accord military judges ‘“wide dis-
cretion’ when applying MIL. R. EVID. 403.” United States v. Mann, 54 M.J.
164, 166 (C.A.A.F. 2000) (quoting United States v. Rust, 41 M.J. 472, 478
(C.A.A.F. 1995). Absent a “clear abuse of discretion,” if the military judge
“conducts a proper balancing test under [MIL. R. EVID.] 403, the ruling will
not be overturned.” Mann, 54 M.J. at 166. However, if he fails to articulate
his analysis on the record he receives less deference, and no deference if no
balancing test is conducted. Id.

  1. Lay opinion testimony concerning LCDR LS’s demeanor
    The appellant complains that it was error for the military judge to admit
lay opinion testimony describing LCDR LS’s demeanor as very emotional and
distraught during her SAFE because the testimony was irrelevant, an im-
proper lay opinion, and unfairly prejudicial. We disagree.



                                        27
                         United States v. Patrick, No. 201700178


    “Lay opinion testimony is only admissible if (1) the opinion is rationally
based on the witness’s perception; and (2) the opinion is helpful either to an
understanding of the testimony of the witness on the stand or to the determi-
nation of a fact in issue.” United States v. Lopez, 76 M.J. 151, 156 (C.A.A.F.
2017) (citations and internal quotation marks omitted). However, “[s]o long
as the opinion [of a lay witness] is based upon personal observation and is
relevant, [the witness] may testify about another’s emotional state. No
unique ability or specialized training is required to form such opinions.”
United States v. Roberson, 65 M.J. 43, 47 (C.A.A.F. 2007) (citations omitted).
    The lay opinion testimony at issue was provided by LCDR H, a nurse who
assisted in the SAFE of LCDR LS. Before trial, the defense raised a motion to
suppress LCDR H’s testimony concerning LCDR LS’s demeanor during her
SAFE. The military judge denied the motion, finding the demeanor testimony
was admissible. In this instance, because the military judge articulated his
analysis—to include his balancing analysis—on the record, we accord his de-
cision great deference. Manns, 54 M.J. at 166. We will only overturn his deci-
sion if we conclude that his findings were clearly erroneous or that he misap-
prehended the law.
    LCDR LS arrived at the medical treatment facility around 0600, approx-
imately two hours after the sexual assault. LCDR H testified that she per-
sonally observed LCDR LS’s demeanor when she arrived at the treatment
facility. She described LCDR LS’s demeanor as “very emotional . . . she did
not want to talk to anyone, very, very, very upset and distraught.”34 In over-
ruling the defense objection to this testimony, the military judge found that
LCDR H’s opinion was based on her personal observations of LCDR LS; that
the testimony was of “some limited probative value; that it would be helpful
to the finder of fact in that it tend[s] to corroborate that a traumatic event
had occurred to the complaining witness[; and] . . . it makes it somewhat
more likely to conclude that an assault had occurred.” 35 In articulating his
balancing analysis the military judge stated, “I find that while [the demean-
or] evidence is not good for the defense, I don’t find that it’s unfairly prejudi-
cial and I don’t find that it’s going to confuse the issues and mislead the
members or cause any undue delay.” 36
   We find that the military judge’s findings of fact are supported by the rec-
ord and that he appropriately applied the law. LCDR H personally observed



   34   Record at 858.
   35   Id. at 240.
   36   Id.



                                           28
                         United States v. Patrick, No. 201700178


LCDR LS and thus had a basis for describing how she appeared. As the rec-
ord reflects, after arriving at the treatment facility it was over four hours be-
fore LCDR LS had calmed down sufficiently to conduct the examination. The
testimony provided by LCDR H describing LCDR LS’s demeanor was just
that—a description. It did not consist of any explanation of why LCDR LS
may have had that demeanor or any inappropriate human lie-detector type
statements suggesting LCDR H believed that LCDR LS’s demeanor was con-
sistent with one who had experienced a previous sexual assault. See Lopez,
76 M.J. at 155 (describing human lie-detector testimony as “testimony that
leads the members to infer that the witness believes the victim is truthful or
deceitful with respect to an issue at trial.”) (citations omitted). LCDR LS’s
demeanor was relevant and probative in that it could assist the trier of fact in
determining a fact at issue in the case—whether LCDR LS had recently ex-
perienced a traumatic event—the sexual assault. Finally, we find no support
in the record to conclude that the demeanor testimony’s probative value was
substantially outweighed by any danger of unfair prejudice, confusion of the
issues, misleading the members, undue delay, wasting time, or needlessly
presenting cumulative evidence. MIL. R. EVID. 403.

  2. Testimony regarding LCDR LS’s BAC
   The appellant also complains that it was error for the military judge to
admit testimony concerning LCDR LS’s BAC, alleging that this testimony
was confusing, unfairly prejudicial, and not relevant. We disagree.
    Before trial, the appellant filed a motion in limine seeking to prevent the
government from offering evidence of LCDR LS’s BAC. 37 After receiving evi-
dence on the motion—including testimony from both the government’s and
defense’s sleep disorder experts regarding how LCDR LS’s BAC may have
affected her sleep and ability to be awakened by external stimuli—and argu-
ment from counsel, the military judge allowed the government to present the
BAC testimony. In articulating his ruling on the motion, the military judge
stated that LCDR LS’s BAC at both “the time of the draw and the time of the
alleged [sexual assault]” was “minimally probative . . . in proving that
[LCDR LS] had alcohol in her system at the time of the [sexual assault].” 38
Citing MIL. R. EVID. 401 and 402, the military judge went on to articulate
“the BAC reading of .1 is minimally relevant, but it confirms that the victim
had consumed alcohol and the regression result of .18 to .22 provides at least
some evidence as to the victim’s level of blood alcohol at the time of the inci-


   37   See AE IX.
   38   Record at 233.



                                           29
                         United States v. Patrick, No. 201700178


dent.” 39 Concerned that the members may attempt to use the BAC as “short-
hand for determining that the victim was unconscious or asleep[,]” 40 the mili-
tary judge sua sponte alerted counsel that he would be giving the members a
cautionary instruction on the permissible uses of the BAC evidence. 41 After
receiving the instruction, all members affirmed that they understood and
would follow the instruction. The military judge then repeated this instruc-
tion to the members during his findings instructions.
    Here, although the military judge’s “minimally probative” comment and
his sua sponte decision to provide a cautionary instruction suggests that he
may have done a MIL. R. EVID. 403 balancing analysis, we cannot be certain
that he did so. Accordingly, we have examined the record for ourselves.
Manns, 54 M.J. at 166.
    We find that LCDR LS’s BAC at the time of the blood draw and at the
time of the sexual assault was relevant in that it had the tendency to make a
fact in consequence—that LCDR LS could not consent because she was asleep
at the time of the sexual assault—“more probable than it would be without
the evidence.” MIL. R. EVID. 401 and 402. First, it established that at the time
of the draw, LCDR LS had alcohol in her system and at what level. By using
this known concentration, through the use of regression analysis, LCDR LS’s
BAC could be estimated at the time of the sexual assault. A person’s BAC is,
as explained by the government’s sleep disorder expert, LTC W, “the best tool
we have at looking at how to match up one individual with what the evidence
or science has shown to be true regarding physiology and [the effect of] alco-
hol on physiology” 42—to include its effect on sleep. 43 As both the government’s

   39   Id. at 234.
   40   Id. at 235.
   41 Before the testimony of the government’s forensic toxicologist, the military
judge gave the following instruction:
         Members, before we call this next witness, I’m going to advise you
         that you are going to hear evidence about the BAC of [LCDR LS] dur-
         ing this next witness’s testimony. You may consider this along with
         all other evidence in this case but you must set aside anything you
         know about the laws concerning driving under the influence. Those
         laws have no bearing on your evaluation of this evidence. Under the
         law, one may be too intoxicated to drive, but not incompetent for oth-
         er purposes, including to consent to sexual activity. Simply knowing
         an individual’s BAC does not in and of itself establish that individu-
         al’s level of impairment.
   Id. at 863.
   42   Record at 206.



                                            30
                      United States v. Patrick, No. 201700178


and the defense’s experts testified, alcohol—and the amount of alcohol in a
person’s system—can make it more difficult for a person to be awakened by
external stimuli. Hence, we conclude that the BAC testimony had probative
value in that it could be helpful to the members in understanding how the
amount of alcohol LCDR LS had in her system at the time of the incident im-
pacted her ability to respond to external stimuli—the assault—if she were, in
fact, asleep at the time.
   Having found that the testimony was relevant and probative, we now ex-
amine whether the probative value of the testimony was substantially out-
weighed by confusion of the issues or unfairly prejudicial to the appellant.
MIL. R. EVID. 403. We find that it was not.
    The BAC testimony did not confuse the issues. The issue was what impact
the alcohol in LCDR LS’s system had on her sleep and her ability to be awak-
ened from that sleep by the sexual acts—not whether LCDR LS was substan-
tially incapacitated to the point of being incapable of giving consent to the
sexual acts. Furthermore, we find that the probative value was not substan-
tially outweighed by any unfair prejudice. As the military judge did at trial,
we too recognize the danger that the members may have used the BAC as
short-hand to find that LCDR LS was asleep or unconscious. The military
judge’s instruction to the members on this issue properly focused them on the
issue for which it was presented and argued. In the absence of evidence in the
record to the contrary, we presume the members to have followed the military
judge’s instructions. Taylor, 53 M.J. at 198 (citations omitted). Finally, alt-
hough not raised by the appellant, we also find no reason in the record to be-
lieve that the probative value of the testimony was substantially outweighed
by any other MIL. R. EVID. 403 consideration.

E. Legal and factual sufficiency
  We review questions of legal and factual sufficiency de novo. 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 in the
light most favorable to the prosecution, any reasonable fact-finder could have
found all the essential elements beyond a reasonable doubt.” United States v.
Day, 66 M.J. 172, 173-74 (C.A.A.F. 2008) (citing United States v. Turner, 25
M.J. 324, 324 (C.M.A. 1987)). In applying this test, “we are bound to draw
every reasonable inference from the evidence of record in favor of the prose-
cution.” United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citations
omitted).


   43   Id. at 198.



                                        31
                    United States v. Patrick, No. 201700178


    The test for factual sufficiency is whether “after weighing all the evidence
in the record of trial and recognizing that we did not see or hear the witness-
es as did the trial court, this court is convinced of the appellant’s guilt beyond
a reasonable doubt.” United States v. Rankin, 63 M.J. 552, 557 (N-M. Ct.
Crim. App. 2006) (citing Turner, 25 M.J. at 325 and Art. 66(c), UCMJ), aff’d,
64 M.J. 348 (C.A.A.F. 2007). In conducting this unique appellate role, we take
“a fresh, impartial look at the evidence,” applying “neither a presumption of
innocence nor a presumption of guilt” to “make [our] own independent deter-
mination as to whether the evidence constitutes proof of each required ele-
ment beyond a reasonable doubt.” Washington, 57 M.J. at 399.
    The appellant challenges the legal and factual sufficiency of his convic-
tions, asserting that the evidence fails to prove: (1) the appellant penetrated
LCDR LS’s vulva with his finger; or (2) that LCDR LS was asleep or uncon-
scious at the time.

  1. Penetration of the vulva
      The statutory elements of sexual assault by bodily harm are: (1) a person
commits a sexual act upon another person; and (2) the person did so by caus-
ing bodily harm to that other person. Art. 120(b)(1)(B), UCMJ. “Sexual act” is
defined, in pertinent part, as “the penetration, however slight, of the vulva
. . . of another by any part of the body . . . with an intent to abuse, humiliate,
harass, or degrade any person or to arouse or gratify the sexual desire of any
person.” Art. 120(g)(1)(B), UCMJ. “Bodily harm” is defined as “any offensive
touching of another, however slight, including any nonconsensual sexual act
or nonconsensual sexual contact.” Art. 120(g)(3), UCMJ. “Consent” is “a freely
given agreement to the conduct at issue by a competent person.” Art.
120(g)(8)(A), UCMJ. A sleeping or unconscious person “cannot consent.” Art.
120(g)(8)(B), UCMJ. “Lack of consent may be inferred based on the circum-
stances of the offense.” Art. 120(g)(8)(C), UCMJ. Although not defined by the
statute, the military judge used the Military Judges’ Benchbook to define the
vulva as the “external genital organs of the female, including the entrance of
the vagina and the labia majora and labia minora. ‘Labia’ is the Latin and
medically correct term for ‘lips.’” 44
    Here, the sexual act and bodily harm alleged are the same—penetration
of LCDR LS’s vulva by the appellant’s finger.
   LCDR LS testified that she recalled awakening to the appellant touching
her vagina with his fingers, although she did not remember any penetration


   44 Military Judgs’ Benchbook, Dept. of the Army Pamphlet 27-9 at ¶ 3-45-14 (10
Sept 2014). See also Record at 138.



                                         32
                          United States v. Patrick, No. 201700178


of her vagina. 45 She also testified that when she realized what was happening
she tried to get away from the appellant telling him to “[s]tay away from me”
and asking “[w]hy did you do that?” 46 LCDR LS was adamant that she did
not consent to any sexual activity with the appellant. Her squadron mates
throughout the multiple rooms in the quiet admin testified they awoke to
LCDR LS crying, and raising her voice to the point of screaming. She was
heard saying as she distanced herself from the appellant: “[g]et him away
from me,” and “[w]hat are you doing?” 47 LT AT testified he saw the appellant
get off the roll-away bed and “fix[] his pants” while LCDR LS got up and ran
to the corner screaming and sobbing. 48
    Within hours of the sexual contact, LCDR LS and the appellant both
completed SAFEs. During LCDR LS’s SAFE examination, the examiner ob-
tained “[external] vaginal swabs,” swabbing in between the labia major and
labia minor, and then inside the labia minor, which included “inside the lips
of the vagina—inside the lips of the vulva.” 49 The examiner then took “inter-
nal vaginal swabs” from inside the vaginal canal. The forensic biologist who
examined the samples testified that the external swabs taken from inside the
“lips” of the vulva, revealed a partial male DNA profile that matched appel-
lant’s profile. 50 He testified that “this profile is 18 times more likely to have
occurred if it originated from [appellant] or a paternal male relative than if it
originated from a randomly selected individual.” 51 Though these swabs are
described as “external” swabs, because they were taken outside the vaginal
canal, but within the lips of the vulva, the record establishes they were ob-
tained from areas inside LCDR LS’s vulva. 52
    The appellant focuses his argument on the issue of proof of penetration.
He asserts the record does not support, legally or factually, the members’
finding that the appellant penetrated LCDR LS’s vulva with his finger. The


   45 We again note that throughout trial, the counsel and LCDR LS used the term
vagina, and not vulva. The vagina is “the canal in the female, extending from the
vulva to the cervix uteri, which receives the penis in copulation. Slone, The Slone-
Dorland Annotated Medical-Legal Dictionary, at 764.
   46   Record at 476.
   47   Id. at 703.
   48   Id. at 628-631.
   49   Id. at 885-887.
   50   Id. at 924.
   51   Id. at 924.
   52   Id. at 887



                                            33
                    United States v. Patrick, No. 201700178


appellant points to LCDR LS’s testimony at trial that she only remembered
the appellant touching her vagina, not penetrating it, and to the location of
and quality of the male DNA that was found on swabs taken during
LCDR LS’s sexual assault exam. We disagree.
    Proof beyond a reasonable doubt does not mean that the evidence must be
free from conflict. United States v. Goode, 54 M.J. 836, 841 (N-M. Ct. Crim.
App. 2001). “The factfinders may believe one part of a witness’ testimony and
disbelieve another.” United States v. Harris, 8 M.J. 52, 59 (C.M.A. 1979). So
too may this court. United States v. Diaz, 61 M.J. 594, 599 (N-M. Ct. Crim.
App. 2005), aff’d, 64 M.J. 176 (C.A.A.F. 2006). “When weighing the credibility
of a witness, this court, like a fact finder at trial, examines whether discrep-
ancies in witness testimony resulted from an innocent mistake, such as a
lapse of memory, or a deliberate lie.” United States v. Berger, No. 201500024,
2016 CCA LEXIS 322, at *36 (N-M. Ct. Crim. App. May 26, 2016), rev’d on
other grounds, 76 M.J. 128 (C.A.A.F. 2017).
    Although LCDR LS testified that she did not remember any penetration
of her vagina, she did state that she remembered the appellant touching her
vagina. She also repeatedly stated that she had not consented to any sexual
conduct with the appellant. Further she testified that she had no memory of
anything from the time she fell asleep until she was awakened by the appel-
lant touching her vagina because she was asleep. We find her testimony, to
be credible, consistent even through the crucible of cross-examination, and
corroborated or supported by other witnesses, the forensic evidence, and the
surrounding circumstances. Finally, although “18 times more likely” is not an
overwhelming statistic, the appellant was included as a possible contributor
to the DNA found in LCDR LS’s vulva.
    After reviewing the record of trial and considering the evidence in the
light most favorable to the prosecution, we are convinced that a reasonable
fact-finder could have been convinced beyond a reasonable doubt that the ap-
pellant sexually assaulted LCDR LS by penetrating her vulva with his finger
without her consent. Furthermore, after weighing the evidence in the record
and making allowances for not having personally observed the witnesses, we
too are convinced beyond a reasonable doubt.

  2. Asleep or unconscious
    While this court is not required to address the evidence pertaining to the
specification that was conditionally dismissed—that LCDR LS was incapable
of consenting to the sexual act because she was asleep or unconscious—we
also find the evidence in support of this offense legally and factually suffi-
cient. LCDR LS testified she was asleep. Numerous witnesses confirmed she




                                        34
                     United States v. Patrick, No. 201700178


was asleep, and the expert testimony provided by LTC W, the government’s
sleep expert, corroborated her testimony.

F. Ineffective assistance of counsel
    The appellant claims his trial defense counsel were ineffective because
they failed to present evidence of his BAC level in order to negate the specific
intent required to commit the offenses alleged. We review claims of ineffec-
tive assistance of counsel de novo. United States v. Harpole, 77 M.J. 231, 236
(C.A.A.F. 2018) (citations omitted). The Sixth Amendment entitles criminal
defendants to representation that does not fall “below an objective standard
of reasonableness” in light of “prevailing professional norms.” Strickland v.
Washington, 466 U.S. 668, 688 (1984). In order to prevail on a claim of inef-
fective assistance of counsel, an appellant must demonstrate both (1) that his
counsel’s performance was deficient, and (2) that this deficiency resulted in
prejudice. Id. at 687.
    With respect to Strickland’s first prong, counsel are presumed to be com-
petent and our inquiry into an attorney’s representation is “highly deferen-
tial.” Id. at 689. We employ “a strong presumption that counsel’s conduct falls
within the wide range of professionally competent assistance.” Id. The appel-
lant has the heavy burden of establishing a factual foundation for a claim of
ineffective representation. United States v. Grigoruk, 52 M.J. 312, 315
(C.A.A.F. 2000). We will not second-guess strategic or tactical decisions made
by the trial defense counsel unless the appellant can show specific defects in
counsel’s performance that were unreasonable under prevailing professional
norms. United States v. Mazza, 67 M.J. 470, 475 (C.A.A.F. 2009).
   In order to show prejudice under Strickland’s second prong, “[t]he defend-
ant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Strickland, 466 U.S. at 694. “Moreover, a verdict or conclusion
only weakly supported by the record is more likely to have been affected by
errors than one with overwhelming record support.” Id. at 696.
    We need not, however, “determine whether counsel’s performance was de-
ficient before examining the prejudice suffered by the [appellant] as a result
of the alleged deficiencies. . . . If it is easier to dispose of an ineffective claim
on the ground of lack of sufficient prejudice, which we expect will often be so,
that course should be followed.” Strickland, 466 U.S. at 697.
    Assuming without deciding that trial defense counsel’s failure to present
evidence of the appellant’s BAC on the merits was deficient performance, we
turn to the prejudice component of the test for ineffective assistance—is there
a reasonable probability that, had trial defense counsel presented evidence of


                                           35
                         United States v. Patrick, No. 201700178


the appellant’s specific BAC on the merits, the outcome of his trial would
have been different? We find that it would not.
    Our review of the record reveals evidence of the appellant’s consumption
of alcohol and visible degree of impairment had been raised at trial. Multiple
witnesses testified that they observed the appellant consuming alcohol
throughout the day and evening in question—to include observing him drink-
ing at the hotel pool, restaurant, command social, and later playing drinking
games in the party admin. Specifically regarding the appellant’s degree of
impairment, after several witnesses testified about playing drinking games
and LCDR LS’s lack of any visible impairment after participating in those
games, a panel member asked, “was [the appellant] excessively drunk?” 53—to
which the witness responded, “[h]e was another person that I was worried
about,” suggesting that the appellant was more visibly impaired than
LCDR LS from the consumption of alcohol. 54 In light of this evidence, the mil-
itary judge properly instructed the members on the issue of voluntary intoxi-
cation, and to the offenses to which it applied. 55 Had the appellant’s BAC
been admitted on the merits, these instructions would have remained sub-
stantially unchanged.
    Additionally, even if the appellant’s specific BAC had been admitted on
the merits, the evidence before the members of the appellant’s conduct would
have remained unchanged. We find the appellant’s conduct was “sufficiently
focused and directed so as to amply demonstrate” his specific intent. He en-
tered the room, slipped into bed beside LCDR LS, spooning her, pulled her
underwear and shorts down, and penetrated her vulva with his finger. When
confronted by LCDR LS, he helped her pull up her underwear, got off the bed,
fastened his pants, and then vigorously denied LCDR LS’s claims of sexual
assault by counter-claiming he was just trying to get her water, and later told
one of his squadron mates, “something happened that shouldn’t have, but [I]
didn’t do nothing [sic] wrong.” 56
     Finally, the government’s evidence was strong. DNA evidence consistent
with that of the appellant’s was found inside LCDR LS’s vulva. LCDR LS tes-
tified that she was asleep on the roll-away bed at the time of the assault and
in no way consented to the sexual acts. Multiple witnesses testified they saw
LCDR LS sleeping on the bed. LCDR LS was also observed getting off the bed


   53   Record at 999; AE LXXVI.
   54   Id. at 999.
   55   Id. at 1048-49 and 1055-56; R.C.M. 916(l)(2).
   56   Record at 766.



                                             36
                    United States v. Patrick, No. 201700178


in a hysterical state, trying to get away from the appellant, and screaming
that he had just sexually assaulted her.
    Finding no reasonable probability of a different outcome, the appellant
was not prejudiced by his counsel’s failure to admit his BAC on the merits.
Strickland, 466 U.S. at 694.

G. Sentence appropriateness
   The appellant contends that the mandatory minimum sentence of a dis-
missal imposed in his case is inappropriately severe. We find that it is not.
    We review sentence appropriateness de novo. United States v. Lane, 64
M.J. 1, 2 (C.A.A.F. 2006). This court “may affirm only . . . the sentence or
such part or amount of the sentence, as it . . . determines, on the basis of the
entire record, should be approved.” Art. 66(c), UCMJ. “Sentence appropriate-
ness involves the judicial function of assuring justice is done and that the ac-
cused gets the punishment he deserves.” United States v. Healy, 26 M.J. 395,
395 (C.M.A. 1988). Assessing sentence appropriateness requires “individual-
ized consideration of the particular accused on the basis of the nature and
seriousness of the offense and the character of the offender.” United States v.
Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (citation and internal quotation
marks omitted). Despite our significant discretion in reviewing the appropri-
ateness and severity of an adjudged sentence, we cannot engage in acts of
clemency. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
     The appellant stands convicted of having sexually assaulted a more senior
officer while forward deployed for combat operations. At the time of his mis-
conduct, the appellant had nearly eight years of honorable service to his cred-
it. Included in his honorable service were numerous awards, accolades, and
positive fitness reports. Having given individualized consideration to the ap-
pellant, the nature and seriousness of his offenses, his character, record of
service, and all other matters contained in the record of trial, we find that the
sentence adjudged by the members in this case—a reprimand, 12 months’
confinement, and a mandatory dismissal—was not inappropriately severe. In
making this determination, we understand full well that our authority under
Article 66(c), UCMJ, to disapprove any sentence is not constrained by Article
56, UCMJ. See United States v. Kelly, 77 M.J. 404, 408 (C.A.A.F. 2018) (hold-
ing that because Congress has not explicitly limited this court’s Article 66(c),
UCMJ, review powers, and until it does this court retains “the power to dis-
approve” any Article 56, UCMJ, mandated minimum sentence). We decline to
disapprove any portion of the appellant’s adjudged sentence because, under
the circumstances of this case, we are convinced that justice was done, and
the appellant received the punishment—including the dismissal—he de-
served. Healy, 26 M.J. at 395.


                                         37
                    United States v. Patrick, No. 201700178


H. CMO error
    Finally, the appellant asserts, without alleging any prejudice, that the
CMO contains error as it does not reflect the military judge’s dismissal of
Specification 3 of the Charge. We agree that the CMO contains error. Howev-
er, the error is not that alleged by the appellant. We take corrective action in
our decretal paragraph.
    After the appellant’s conviction on both Specifications 3 and 4 of the
Charge, the military judge noted that, although charged for contingencies of
proof, both specifications were based on the same underlying conduct. He
then alerted the counsel that he was inclined to conditionally dismiss one of
the offenses. The government expressed that its desire was for Specification 4
of the charge to be conditionally dismissed—Specification 4 alleged that
LCDR LS was asleep or unconscious. Despite the military judge not articulat-
ing on the record that Specification 4 was conditionally dismissed, our review
of the record convinces us that it was Specification 4 and not Specification 3
that was conditionally dismissed. 57 We note the CMO failed to reflect the
conditional dismissal of Specification 4 of the Charge.
    An appellant is entitled to an official record accurately reflecting the re-
sults of his proceedings. United States v. Crumpley, 49 M.J. 538, 539 (N-M.
Ct. Crim. App. 1989). We test error in a CMO under a harmless-error stand-
ard. Id.
    At a minimum, a CMO must contain the following information: (1) the
type of court-martial and the convening command; (2) a summary of all
charges and specification on which the appellant was arraigned; (3) the ap-
pellant’s pleas; (4) the findings or disposition of all charges and specifications
on which the appellant was arraigned; (5) if adjudged, the sentence; and (6) a
summary of the action taken by the convening authority in the case. R.C.M.
1114(c)(1) (emphasis added). The failure of the CMO to reflect the conditional
dismissal of Specification 4 of the Charge is error; however, the appellant
does not assert, and we do not find any prejudice done to the appellant’s sub-
stantial rights by this error.

                              III. CONCLUSION

    The findings and sentence are affirmed. The supplemental CMO will re-
flect that the military judge conditionally dismissed Specification 4 of the



   57See Record at 1232-33, 1239, and 1241; Charge Sheet; AE LXXXIII (Findings
Worksheet) and XCI (Sentencing Cleansed Charge Sheet).



                                         38
                   United States v. Patrick, No. 201700178


Charge without prejudice, to ripen into prejudice upon completion of appel-
late review.
   Senior Judge FULTON and Judge CRISFIELD concur.


                              FOR THE COURT




                              RODGER A. DREW, JR.
                              Clerk of Court




                                      39
