UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                             TOZZI, HAM, and CHIARELLA 1
                               Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                        Sergeant ROBERTO E. TRIGUEROS
                           United States Army, Appellant

                                    ARMY 20070754

                    Headquarters, 21st Theater Support Command
                             James Pohl, Military Judge
                    Colonel Scott W. Arnold, Staff Judge Advocate

For Appellant: Captain Sarah E. Wolf, JA; Mr. William E. Cassara, Esquire (on
brief).

For Appellee: Colonel Denise R. Lind, JA; Lieutenant Colonel Francis C. Kiley, JA;
Major Christopher B. Burgess, JA; Captain Lynn I. Williams, JA (on brief).

                                     29 March 2010
                               ----------------------------------
                                OPINION OF THE COURT
                               ----------------------------------

CHIARELLA, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to mixed pleas, 2 of rape, indecent assault, and adultery, in violation of
Articles 120 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920, 934
[hereinafter UCMJ]. 3 The military judge sentenced appellant to a dishonorable
discharge, confinement for eighty-three months, forfeiture of all pay and allowances,
and reduction to the grade of E1. The military judge also awarded appellant thirty


1
    Judge CHIARELLA took final action in this case while on active duty.
2
 Appellant pled guilty by exceptions and substitutions to the lesser-included offense
of indecent acts with another. The court-martial convicted him of the greater
offense of indecent assault.
3
 Appellant’s charged offenses occurred prior to the effective date of the revision to
Article 120, UCMJ, which applies to offenses that occurred on or after 1 October
2007.
TRIGUEROS – ARMY 20070754

days credit against the adjudged confinement. The convening authority approved the
adjudged sentence. This case is before us for review under Article 66, UCMJ.

        Appellant alleges the military judge erred to his substantial prejudice by
denying his request for a mistrial following the discovery, at sentencing, that the
trial counsel failed to disclose the rape victim’s mental health records in response to
a specific defense request. Appellant also contends the evidence was not legally and
factually sufficient to support the findings of guilty as to the rape and indecent
assault charges. We find appellant’s two assignments of error lack merit. Because
the nondisclosure of the rape victim’s mental health records was harmless beyond a
reasonable doubt, the military judge did not abuse his discretion in denying the
request for mistrial.

                                       FACTS

                          A. Indecent Assault of Mrs. JLC

       Appellant pled guilty to committing an indecent act with Mrs. JLC by
ejaculating on her face while they were in a room with the door open. Appellant
contends, however, his actions were consensual and not an indecent assault.

       Mrs. JLC first met appellant through her husband, Private First Class (PFC)
TC, at a unit organization day on or about 10 July 2006. About a week later, on 18
July, Mrs. JLC, her husband, and appellant went out together socially. On the
following night, Mrs. JLC went out with appellant, Specialist (SPC) Jessica Suarez,
SPC Mayra Acevedo, and PFC McCallium Davis.

       The group visited various clubs and everyone consumed alcohol. Mrs. JLC
consumed about three mixed drinks and four shots of tequila within the first hour.
While walking to a second bar, Mrs. JLC fell, and appellant helped her walk. Once
they arrived at the second bar, Mrs. JLC continued to consume shots of tequila. At
one point, appellant took a lemon from Mrs. JLC’s drink, put it in his mouth, and
only gave it back to Mrs. JLC when she kissed him. The group then went to a third
bar. By this time, Mrs. JLC could only remember being awakened as the group
prepared to leave. Mrs. JLC vomited while they were waiting for a cab to return to
the barracks. Once in the cab, she vomited again in appellant’s lap. When the group
arrived at the front gate of post, appellant had to help Mrs. JLC find her military
dependent identification card.

      The group arrived at the barracks at approximately 0200 and decided that Mrs.
JLC would sleep in the vacant bedroom of SPC Suarez’s suite (two bedrooms with a
common area bathroom and a common area kitchen) to avoid bringing her to her
husband in such a heavily intoxicated state. Mrs. JLC required assistance from both
appellant and PFC Davis to walk into the barracks room. Mrs. JLC remembered



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TRIGUEROS – ARMY 20070754

being put on a bed and having all her clothes on except her shoes. When given a
glass of water, Mrs. JLC vomited yet again. Mrs. JLC could not keep her eyes open
and “passed out” after being put on the bed.

       Appellant, SPC Suarez, and PFC Davis took turns checking on Mrs. JLC
during the night. Appellant and PFC Davis stayed in SPC Suarez’s bedroom after
the group returned to the barracks. The lights remained on in SPC Suarez’s
bedroom, the common bathroom, and the spare bedroom where Mrs. JLC lay. After
a while, both PFC Davis and SPC Suarez fell asleep, leaving appellant awake to
continue checking on Mrs. JLC.

       Mrs. JLC remembered waking, feeling she needed to vomit again. Her body,
however, felt very heavy. When she tried to move, Mrs. JLC had trouble sitting up
and was confused about where she was. Mrs. JLC felt pressure on her genital area,
like she was being “fingered,” “like something was kind of in me,” and saw that her
legs were turned at an awkward angle. While feeling herself being touched, Mrs.
JLC saw appellant kneeling on the bed. Mrs. JLC could see appellant clearly
because all the lights were still on in the bedroom. Appellant leaned backward and
put his hand down by his side. Appellant’s other hand was near his crotch, and Mrs.
JLC noticed something shiny that appeared to be an undone pants zipper. Mrs. JLC
also saw appellant’s face appeared “turned on.”

       Mrs. JLC said “no” to appellant three or four times loudly enough to be heard
and shook her head. In response, appellant put his hand over Mrs. JLC’s mouth and
pushed her back on the bed. When appellant removed his hand, Mrs. JLC again tried
sitting up, said “no,” and shook her head. Appellant again put his hand over Mrs.
JLC’s mouth and pushed her head down more forcefully, making it difficult for Mrs.
JLC to breathe. Appellant eventually removed his hand from Mrs. JLC’s mouth and
aligned her head in front of his crotch. Mrs. JLC also saw appellant’s other hand in
a clinched fist moving up and down on his penis. Mrs. JLC then felt something wet
hit her face. She tried pulling her head away, but could not because appellant still
held her head. Mrs. JLC recognized the wetness as semen and knew appellant had
ejaculated on her face. After ejaculating on Mrs. JLC’s face, appellant placed her
head back on the bed, kissed her shoulder, and told her he would be right back.

        Mrs. JLC vomited again. Appellant returned, first wiping ejaculate from Mrs.
JLC’s face before wiping her vomit. Mrs. JLC did not remember anything else until
appellant told her she had to go back to her husband’s barracks room. Mrs. JLC
arrived while her husband was getting ready for work, went immediately to bed, and
fell asleep. Mrs. JLC awoke at about 1000 and began to remember what happened
with appellant the previous night. She went to the bathroom and felt a burning
sensation while urinating. When her husband returned at about 1030, Mrs. JLC told
him what happened. They then went to the military police station where Mrs. JLC
provided a statement.



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TRIGUEROS – ARMY 20070754

                               B. Rape of Mrs. SCR

      Appellant met Mrs. SCR through his wife, Judith Trigueros, when Mrs. SCR
attended a dinner party at appellant’s house. Mrs. SCR had met Mrs. Trigueros,
along with three other women, in a two-week dental assistant course. The five
women decided to celebrate the end of their course with a dinner party at appellant’s
family quarters.

        The event began at about 2000, and, over the course of the evening, Mrs. SCR
drank approximately four glasses of wine. Mrs. SCR testified she is usually not a
drinker and only occasionally has a glass of wine when dining out. However, that
evening, Mrs. SCR was relaxed, laughing, and talkative. Sex was one of the topics
of conversation among the five women, in the presence of appellant. Two of the
women left the dinner party together at about 2200, and a third, Miriam Hembrook,
left closer to midnight. While Mrs. Hembrook believed herself well enough to drive
home, Mrs. Trigueros insisted on following Mrs. Hembrook, leaving only appellant
and Mrs. SCR at appellant’s quarters.

      Mrs. SCR’s memory of subsequent events, while imperfect, was detailed. For
example, she remembered being kissed by appellant—he was “all over [her] with his
tongue in [her] mouth”—but could not remember exactly when or where this
occurred. Mrs. SCR also remembered lying “short-wise” on a bed with no idea of
how she got to the back bedroom. Appellant was on top of her, and she felt trapped
and unable to move. Mrs. SCR also felt incredible pain and tearing inside of her
vagina while appellant was “thrusting, like hitting so hard” because she was “tense
and was not wet.” Both Mrs. SCR’s trapped feeling and “pain like [she] never felt
before” lasted a few moments. While feeling like she was in shock, she eventually
comprehended what was occurring and said in a voice loud enough to be heard, “I
want my husband. I want Jake. I want my husband. I want Jake.” Mrs. SCR
remembered appellant’s repeated response as “oh baby, baby.”

       Mrs. SCR rolled away from appellant in an attempt to escape. Mrs. SCR saw
her pants and underwear around one of her ankles. Appellant quickly rolled Mrs.
SCR back, against her will, and got on top of her again. Mrs. SCR then recognized
that appellant had a condom on his penis. Appellant then leaned on top of her with
his weight on her arms and continued to have sex with her. Mrs. SCR said she did
not feel pain at this time; however, she was so exhausted and shocked she felt like
she could not function.

       Mrs. SCR next remembered being fully dressed and standing in the bedroom
doorway (she did not remember putting her clothing on). She saw blood all over the
bed. Mrs. SCR was having her menstrual period, but as a result of taking birth
control pills, her periods were not heavy. Mrs. SCR attributed the blood on the bed
to be the result of force and tearing, and not menstrual blood. Mrs. SCR also



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TRIGUEROS – ARMY 20070754

remembered being at the front door of appellant’s house and walking down the
stairs, but did not remember whether she left the house with anyone.

       Mrs. Trigueros testified she drove Mrs. SCR back to her quarters. Though
met by her husband upon her arrival at home, Mrs. SCR felt like she was in shock
and did not immediately report to her husband what had occurred. Shortly
thereafter, while taking a shower, Mrs. SCR began crying and shaking
uncontrollably. She then laid on the hallway floor and hysterically kept saying she
“didn’t want to. I tried to roll away.” Mrs. SCR told her husband appellant raped
her. Mrs. SCR’s husband helped get her dressed, drove her to the military police
station where she gave a sworn statement, and then took her to the hospital where a
health official performed a rape examination.

                            C. Appellant’s Court-Martial

       In January 2007, appellant’s command preferred the rape, indecent assault,
and adultery charges against appellant. On 20 April 2007, after an Article 32, UCMJ
investigation at which Mrs. SCR testified, the commanding general, 21st Theater
Support Command, referred the charges to a general court-martial.

       On 25 April 2007, civilian defense counsel submitted a written “Defense
Discovery Request,” including inter alia, “copies of any and all records, to include
notes, whether hand-written or otherwise, maintained by any health care provider, to
include mental health care such as social workers and the [Army Substance Abuse
Program], for any sessions with either Mrs. [JLC] or Mrs. [SCR] . . . .” On 9 May
2007, trial counsel responded to the defense discovery request, stating in relevant
part “[t]he Government is not aware of the existence of any such documentation
regarding the records of the victims, Mrs. [JLC] and Mrs. [SCR].” In fact, trial
counsel had not asked Mrs. SCR whether she had attended mental health counseling
before responding to the defense discovery request.

       Appellant was arraigned and entered a mixed plea on 26 April 2007. On 14
June 2007, at a bench trial, the military judge found appellant guilty of the contested
rape and indecent assault charges. During sentencing, and in response to
questioning from civilian defense counsel, Mrs. SCR stated she had attended
approximately four mental health counseling sessions following the rape incident.
In light of his prior discovery request, civilian defense counsel requested a
continuance in order to obtain and review Mrs. SCR’s counseling records. The
military judge granted the continuance and ordered trial counsel to produce the
victim’s counseling records, under seal, for the court’s in camera review.

       Appellant’s trial reconvened on 27 June 2007. The military judge reviewed
the counseling records furnished under seal by the government during the
intervening recess. Although the military judge stated his review of the counseling



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TRIGUEROS – ARMY 20070754

records “did not note anything particularly relevant” to the case, he directed that
each side have an opportunity to review the records.

       Civilian defense counsel moved for a mistrial, alleging the nondisclosed
counseling records constituted a violation of Brady v. Maryland, 373 U.S. 83
(1963). 4 Civilian defense counsel argued the nondisclosed information was
favorable to the accused and provided avenues to attack Mrs. SCR’s credibility
because the counseling records indicated, among other things: (1) the victim had a
prior counseling experience; (2) the victim was on antidepressant medication; and
(3) the victim’s last menstrual period began on a day different than what the witness
had stated at trial. Civilian defense counsel also asserted, in the alternative, that
Mrs. SCR’s counseling records were favorable to the defense because they were
unfavorable. Civilian defense counsel claimed the fact that she sought counseling
enhanced her credibility, made the government’s case stronger, the defense’s case
weaker, and thereby would have caused the defense to revisit a possible pretrial
agreement.

       The military judge recalled Mrs. SCR to obtain additional information prior to
ruling on the Brady issue and mistrial motion. Mrs. SCR testified, among other
things: (1) she had attended an inpatient clinic at age twelve for an eating disorder;
(2) the only medication she took at the time of the rape was birth control, and
afterwards she was prescribed one Valium as part of the pap smear exam and a
seven-day supply of Ambien for nightmares and trouble sleeping; and (3) her
menstrual cycle probably started on the Tuesday of that week in November, a couple
of days before the offense, and she was still on her cycle at the time of the incident.

       The military judge then announced extensive findings of fact as to each of the
specific issues raised by civilian defense counsel, concluding each was harmless.
For example, as to Mrs. SCR’s memory of her menstrual cycle, the military judge
found “any confusion or change of the date . . . when the menstrual cycle started has
minimal to little impact on the credibility of Mrs. [SCR]; and, therefore, the
nondisclosure, if it was nondisclosed . . . was harmless beyond a reasonable doubt.”

      The military judge concluded the government’s nondisclosure of Mrs. SCR’s
mental health records, cumulatively and individually, was harmless beyond a
reasonable doubt. Additionally, regarding civilian defense counsel’s counter-
argument that the nondisclosed records made the government’s case stronger and

4
  Before hearing the specifics of the defense counsel’s motion, the military judge
established the legal framework by which he would review the Brady violation issue,
with which the parties concurred: whether the nondisclosed information was
favorable and material to the accused and, as the nondisclosure was in response to a
specific defense request, the government carried the burden to demonstrate that the
nondisclosure was harmless beyond a reasonable doubt.


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TRIGUEROS – ARMY 20070754

may have led to a different tactic regarding a pretrial agreement, the military judge
found this did not constitute a Brady violation, was speculative, and harmless
beyond a reasonable doubt as “there was never a meeting of the minds on the pretrial
agreement.” The military judge then denied the motion for mistrial. However,
based on the government’s misrepresentations, the military judge precluded the
government from presenting any victim impact evidence or any aggravation evidence
in its sentencing case-in-chief.

                             LAW AND DISCUSSION

                           A. Denial of Mistrial Motion

        Appellant first alleges the military judge erred by denying his motion for a
mistrial following the discovery, at sentencing, that the government had failed to
disclose the rape victim’s mental health records. Rule for Courts-Martial [hereinafter
R.C.M.] 915(a) vests military judges with the discretion to declare a mistrial when
“manifestly necessary in the interest of justice because of circumstances arising
during the proceedings which cast substantial doubt upon the fairness of the
proceedings.” However, the discussion to the rule advises caution, noting that
mistrials are to be used “under urgent circumstances, and for plain and obvious
reasons.” R.C.M. 915 Discussion; United States v. Diaz, 59 M.J. 79, 90 (C.A.A.F.
2003); United States v. Garces, 32 M.J. 345, 349 (C.M.A. 1991) (mistrial is a drastic
remedy used to prevent miscarriage of justice). Because of the extraordinary nature
of a mistrial, military judges should explore the option of taking other remedial
action. United States v. Fisiorek, 43 M.J. 244, 247 (C.A.A.F. 1995); United States
v. Evans, 27 M.J. 34, 39 (C.M.A. 1988). Appellate courts will not reverse a military
judge’s determination on a mistrial absent clear evidence of an abuse of discretion.
United States v. Ashby, 68 M.J. 108, 122 (C.A.A.F. 2009). A military judge abuses
his discretion when his “findings of fact are clearly erroneous, the court’s decision
is influenced by an erroneous view of the law, or the military judge’s decision on the
issue at hand is outside the range of choices reasonably arising from the applicable
facts and the law.” United States v. Webb, 66 M.J. 89, 93 (C.A.A.F. 2008).

      As detailed below, we conclude the military judge did not abuse his discretion
in denying the mistrial. His findings of fact are fully supported by the record, his
view of the law was not erroneous, and his decision was well within the range of
reasonable choices available.

                        B. Required Disclosure of Evidence

      The Due Process Clause of the Fifth Amendment guarantees that “criminal
defendants be afforded a meaningful opportunity to present a complete defense.”
California v. Trombetta, 467 U.S. 479, 485 (1984); Webb, 66 M.J. at 92. That
guarantee requires the prosecution to disclose evidence that is material and favorable



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to the defense. Brady, 373 U.S. at 87; Webb, 66 M.J. at 92. Whether undisclosed
evidence is “material” is a question of law. United States v. Morris, 52 M.J. 193,
198 (C.A.A.F. 1999). As a general matter, when an appellant has demonstrated error
with respect to a Brady nondisclosure, the appellant is entitled to relief only if there
is a reasonable probability that there would have been a different result at trial had
the evidence been disclosed. See United States v. Santos, 59 M.J. 317, 321
(C.A.A.F. 2004).

       Our superior court has previously noted that R.C.M. 701, “which sets forth
specific requirements with respect to evidence favorable to the defense . . .
implements the Supreme Court’s decision in Brady v. Maryland . . .” United States
v. Williams, 50 M.J. 436, 440 (C.A.A.F. 1999) (internal quotations and emphasis
omitted). We view our superior court’s guidance as requiring us to analyze
nondisclosure issues under the statutory and executive order standards set forth by
R.C.M. 701 and Article 46, UCMJ, which are broader than the Brady constitutional
standard. See Santos, 59 M.J. at 321; United States v. Roberts, 59 M.J. 323, 326-27
(C.A.A.F. 2004). As a result, the government bears the higher burden of proving a
nondisclosure in response to a specific request is harmless beyond a reasonable
doubt. Webb, 66 M.J. 92; Roberts, 59 M.J. at 327. Issues of nondisclosure of
evidence are reviewed de novo. See United States v. Eshalomi, 23 M.J. 12, 21-22
(C.M.A. 1986).

       Upon consideration of the entire record, we agree with the military judge that
appellant is entitled to no relief under Brady as the government’s nondisclosure here
was harmless beyond a reasonable doubt. The mental health counseling records of
Mrs. SCR were not favorable to appellant and did not provide plausible avenues to
attack her credibility as the defense alleged. For example, the civilian defense
counsel asserted the mental health records indicated the victim’s last menstrual
period began on a day different than what the witness stated at trial. We find, as did
the military judge, that any confusion or change of the date—“a day here, a day
there”—regarding when the victim’s menstrual cycle started had minimal impact on
Mrs. SCR’s credibility. Similarly, the fact that Mrs. SCR was taking certain
prescription medications after the rape incident was not shown to be helpful or
favorable to the defense. Quite simply, even assuming arguendo Brady required the
government to disclose the victim’s mental health records, we find the government’s
nondisclosure harmless beyond a reasonable doubt.

      Appellant also argues, in the alternative, the government’s nondisclosure was
favorable to him because the information was unfavorable—the mental health
counseling records substantially enhanced the victim’s credibility and would have
changed the pretrial strategy in terms of potentially submitting a pretrial agreement




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to the convening authority. Without expressly stating such, appellant essentially
argues a violation of Article 46, UCMJ, and R.C.M. 701. 5

       The military justice system provides for broader discovery than due process
and Brady require. See Santos, 59 M.J. at 321; United States v. Adens, 56 M.J. 724,
731 (Army Ct. Crim. App. 2002). Article 46, UCMJ, mandates the trial counsel and
defense counsel “shall have equal opportunity to obtain witnesses and other evidence
in accordance with such regulations as the President may prescribe.” The President
has implemented Article 46, UCMJ in R.C.M. 701, which requires the government,
upon defense request, to allow inspection of any tangible objects, such as papers and
documents, that “are within the possession, custody, or control of military
authorities, and which are material to the preparation of the defense.” R.C.M.
701(a)(2)(A). See also R.C.M. 703(a); R.C.M. 703(f)(1). In particular, the
government must, upon request, permit the defense to inspect “[a]ny . . . reports of
physical or mental examinations, . . . which are within the possession, custody, or
control of military authorities . . . and which are material to the preparation of the
defense.” R.C.M. 701(a)(2)(B). See also United States v. Stewart, 62 M.J. 668, 671
(A.F. Ct. Crim. App. 2006). Although not a common occurrence, our court has
previously recognized that an Article 46, UCMJ violation may occur without a
coexistent violation of constitutional due process. Adens, 56 M.J. at 732
(government’s nondisclosure of inculpatory physical evidence violated a substantial
right of the accused irrespective of a due process violation).

      We find the government’s nondisclosure violated Article 46, UCMJ, and
R.C.M. 701, even though it did not violate Brady. However, as the government
demonstrated, the nondisclosure was harmless beyond a reasonable doubt and
appellant is not entitled to relief. See Roberts, 59 M.J. at 327.

       The record reflects civilian defense counsel was aware Mrs. SCR both told her
husband and provided a sworn statement to military law enforcement officials that
appellant raped her. Civilian defense counsel was also aware Mrs. SCR sought
medical treatment associated with the alleged rape. Lastly, civilian defense counsel
was aware Mrs. SCR testified under oath at an Article 32, UCMJ, hearing. We find
the fact that Mrs. SCR repeated her allegation one additional time, or sought mental
health counseling, added little to her credibility. Accordingly, we find the mental
health counseling records did not, as appellant alleges, substantially strengthen the
government’s case or weaken the defense’s case. Likewise, we find it entirely
speculative that appellant would have altered his pretrial strategy and sought a
pretrial agreement had he known of the mental health records’ existence. It is also
entirely speculative that the convening authority would have approved a pretrial



5
 We note appellant failed specifically to raise the nondisclosure error under R.C.M.
701 and Article 46, UCMJ and instead claimed a violation only under Brady.


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agreement acceptable to the accused as there was never a “meeting of the minds.” In
sum, the government’s nondisclosure was harmless beyond a reasonable doubt.

        We also find our prior decision in Adens inapposite to the facts and
circumstances here in several regards. The trial counsel in Adens made an
intentional decision to withhold inculpatory physical evidence from the defense
counsel with the intent to use it as rebuttal evidence. 56 M.J. at 729. This
“impede[ed] the truth-finding process and constitute[d] gamesmanship, which
R.C.M. 701 was intended to discourage.” Id. at 733-34 (citing United States v.
Lawrence, 19 M.J. 609, 614 (A.C.M.R. 1984)). The nondisclosure here, while
negligent, was neither intentional nor done to gain a tactical advantage. More
importantly, the nondisclosed information in Adens was extremely material; the
evidence was “the ‘smoking gun’ which would stand the defense’s ‘case on its ear.’”
Id. at 733. Even assuming arguendo, the evidence here was “material to the
preparation of the defense” under R.C.M. 701(a)(2)(B), its nondisclosure was
harmless beyond a reasonable doubt because it was not material to the results of the
trial. See Roberts, 59 M.J. at 326.

      Given the government’s nondisclosure was harmless beyond a reasonable
doubt, we find the military judge did not abuse his discretion by denying the mistrial
request. The military judge, in light of the government’s misrepresentation and
consistent with R.C.M. 915, barred the government from presenting any victim
impact evidence and aggravation evidence. Quite simply, the military judge
properly explored and enacted another remedial action commensurate with the
government’s discovery violation.

       Lastly, appellant argues the military judge could not properly determine
whether a mistrial was appropriate because he was also the finder of fact and had
already announced findings. Appellant essentially argues the military judge was
unable to make a proper, objective determination regarding the motion for mistrial
because he was also the subjective fact-finder. We find no merit in this assertion. It
is hardly unusual for legal issues to arise after findings are made, including ones for
which mistrial may be a permissible remedy. Both the military judge’s roles of fact-
finder and judicial arbiter of whether mistrial was appropriate are actions done in an
official capacity. See United States v. Soriano, 20 M.J. 337, 340 (C.M.A. 1985)
(holding “a military judge need not recuse himself solely on the basis of prior
judicial exposure . . .”). As detailed above, we find the military judge did not abuse
his discretion by denying the mistrial request. The government’s nondisclosure was
harmless beyond a reasonable doubt. The fact that the military judge was also the
fact-finder did not impugn the propriety of the trial court’s actions.

       We take this opportunity to reiterate the government’s duty with regard to the
disclosure of evidence in response to specific requests by the defense. In this case,
defense specifically requested “copies of any and all records . . . maintained by any



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health care provider, to include mental health care . . . for any sessions with either
Mrs. [JLC] or Mrs. [SCR] . . . .” Though the government’s response that it was “not
aware of the existence” of Mrs. SCR’s medical records in this case was technically
true, it was only because trial counsel failed to actually ask Mrs. SCR if she had
previously attended mental health counseling. Rule for Courts-Martial 701 requires
the prosecution “engage in ‘good faith efforts’ to obtain the [requested] material.”
Williams, 50 M.J. at 441; R.C.M. 701(a)(2). The “parameters of the review that
must be undertaken outside of the prosecutor’s own files” depend[] on the specific
relationship of the government entity and the defense request. Id. See also United
States v. Simmons, 38 M.J. 376, 381 (C.M.A. 1993) (“trial counsel must exercise due
diligence in discovering [requested reports] not only in his possession but also in the
possession, control, or custody of other ‘military authorities . . .’”). The government
cannot intentionally remain ignorant and then claim it exercised due diligence.

       In this case and others like it where there is no dispute over the relevance of
the requested material, due diligence requires trial counsel to ask each victim
whether she has attended any mental health counseling sessions, investigate the
existence of any medical records, and obtain them, employing a subpoena or other
compulsory process where necessary.

             The preferred practice is for the military judge to inspect
             the medical records in camera . . . prior to any government
             or defense access . . . Once reviewed, the military judge
             makes a ruling either allowing access to both sides, or
             denying access and resealing the records as an exhibit for
             appellate review.

United States v. Briggs, 48 M.J. 143, 145 (C.A.A.F. 1998). See also United States v.
Harding, 63 M.J. 65 (C.A.A.F. 2006) (discussing procedures to employ in response
to defense discovery request for sexual assault victim’s mental health records);
United States v. Rivers, 49 M.J. 434, 437 (C.A.A.F. 1998) (“Where a conflict arises
between the defense search for information and the Government’s need to protect
information, the appropriate procedure is an in camera review by a judge.” (citing
Pennsylvania v. Ritchie, 480 U.S. 39, 61 (1987)); United States v. Kelly, 52 M.J. 773
(Army Ct. Crim. App. 1999).

                          C. Legal and Factual Sufficiency

       Appellant also alleges the evidence was not legally and factually sufficient to
support the findings of guilty to both the rape and the indecent assault charges. We
find this assignment of error is without merit.

      The test for legal sufficiency is whether, considering the evidence in the light
most favorable to the government, any rational trier of fact could have found the



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essential elements of the offense beyond a reasonable doubt. 6 Jackson v. Virginia,
443 U.S. 307, 318-19 (1979); United States v. Turner, 25 M.J. 324, 325 (C.M.A.
1987); United States v. Reed, 51 M.J. 559, 561-62 (N.M. Crim. Ct. App. 1999),
aff’d., 54 M.J. 37 (C.A.A.F. 2000). See also UCMJ art. 66(c). The test for factual
sufficiency is whether, after weighing all the evidence in the record of trial and
making allowances for not having personally observed the witnesses, the appellate
court is convinced of the appellant’s guilt beyond a reasonable doubt. 7 Turner, 25
M.J. at 325. See also UCMJ art. 66(c). The standard of review for questions of both
legal and factual sufficiency is de novo. United States v. Washington, 57 M.J. 394,
399 (C.A.A.F. 2003); United States v. Craion, 64 M.J. 531, 534 (Army Ct. Crim.
App. 2006) (citing Turner, 25 M.J. at 325). The record clearly demonstrates the
evidence here is both legally and factually sufficient to support the findings of guilty
as to the rape of Mrs. SCR and the indecent assault of Mrs. JLC.

                                1. Rape of Mrs. SCR

       The two elements of rape under Article 120, UCMJ are: (1) that the accused
committed an act of sexual intercourse; and (2) that the act of sexual intercourse was
done by force and without consent. Manual for Courts-Martial, United States (2005
ed.) [hereinafter MCM], Part IV, para. 45c(1)(b). In this case, it is undisputed
appellant and Mrs. SCR had sexual intercourse. The sole question before this court
is whether the evidence was sufficient to prove the second element.

       Although listed as a single element, the second element of rape under Article
120, UCMJ, actually comprises two separate components—force and lack of consent.
United States v. Leak, 61 M.J. 234, 245 (C.A.A.F. 2005) (citing United States v.
Simpson, 58 M.J. 368, 377 (C.A.A.F. 2003)). These two components are frequently
intertwined with regard to proof as the evidence presented on the issue of force may
also prove lack of consent. United States v. House, Army 20061064 (Army Ct.

6
  In resolving questions of legal sufficiency, the appellate court is “not limited to
appellant’s narrow view of the record.” United States v. Cauley, 45 M.J. 353, 356
(C.A.A.F. 1996). Rather, “this Court is bound to draw every reasonable inference
from the evidence of record in favor of the prosecution.” United States v. McGinty,
38 M.J. 131, 132 (C.M.A. 1993) (quoting United States v. Blocker, 32 M.J. 281, 284
(C.M.A. 1991) (internal punctuation omitted). Moreover, “[p]roof beyond a
reasonable doubt does not require that the evidence be free from all conflict.”
United States v. Rankin, 63 M.J. 552, 557 (N.M. Ct. Crim. App. 2006), aff'd, 64 M.J.
348 (C.A.A.F. 2007).
7
 In cases, as here, in which the credibility of the witnesses is a paramount factor in
analyzing the factual sufficiency of the convictions, Article 66(c), UCMJ, also
explicitly requires that we “recognize[e] that the trial court saw and heard the
witnesses.”


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Crim. App. 30 Mar. 09) (unpub.). The essence of the offense of rape is “sexual
intercourse against the will of the victim.” Leak, 61 M.J. at 246. Whether the
elements of force and lack of consent are met is based upon the totality of the
circumstances presented in the case. United States v. Cauley, 45 M.J. 353, 356
(C.A.A.F. 1996).

       The record, in the form of Mrs. SCR’s testimony, clearly shows she did not
consent to sexual intercourse with appellant. Mrs. SCR remembers waking up from
a night of drinking to find appellant having sexual intercourse with her against her
will. She felt extreme pain which was caused by appellant thrusting his penis into
her vagina and the fact that she “was not wet” or excited. When she realized what
appellant was doing to her, she tried to move but could not because of appellant’s
body weight on top of her and his restricting her movement. While appellant was
having sexual intercourse with Mrs. SCR, she started to call out for her husband but
appellant ignored her. When Mrs. SCR attempted to roll away from appellant, he
rolled her back, leaned on top of her, and proceeded to have sexual intercourse with
her again.

       Appellant rests much of his argument on his pre-rape kiss with Mrs. SCR and
other minor inconsistencies in the victim’s testimony at trial. Such testimony simply
does not negate that Mrs. SCR testified consistently on both direct and cross-
examination regarding her lack of consent and appellant’s use of force during sex.
Moreover, as Mrs. SCR’s credibility was the paramount factor in analyzing the
factual sufficiency of the conviction here, it was the trial court that was able to see
and hear the witness actually testify. In sum, our independent review of the
evidence, as well as a review of the evidence in a light most favorable to the
prosecution establishes the government proved beyond a reasonable doubt that
appellant raped Mrs. SCR.

                          2. Indecent Assault of Mrs. JLC

       The elements of indecent assault under Article 134, UCMJ are: (1) that the
accused assaulted a certain person not the spouse of the accused in a certain manner;
(2) that the acts were done with the intent to gratify the lust or sexual desires of the
accused; and (3) that, under the circumstances, the conduct of the accused was to the
prejudice of good order and discipline in the armed forces or was of a nature to
bring discredit upon the armed forces. MCM, Part IV, para. 63b. As previously
noted, appellant admitted to indecent acts with Mrs. JLC inasmuch as he ejaculated
on her face, so the sole question before this court is whether appellant’s actions were
consensual.

       Mrs. JLC’s testimony clearly showed she did not consent to having appellant
ejaculate on her face or touch her genital area. After a night of heavy drinking, Mrs.




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JLC remembered awaking and feeling as though she had to vomit. While still trying
to get herself up, Mrs. JLC felt someone “finger[ing]” her and then noticed appellant
kneeling on the bed next to her, appearing “turned on.”

      Mrs. JLC said “no” to appellant about three or four times in a voice loud
enough to be heard and shook her head. Appellant ignored her repeated protests and
attempts to get away from him, covered her mouth with his hand, and otherwise
physically restrained her movement.

       Appellant essentially argues because of various inconsistencies in Mrs. JLC’s
testimony about certain events from the night in question, her account of the
indecent assault is not credible. For example, appellant argues, contrary to Mrs.
JLC’s testimony, the victim made suggestive statements and kissed appellant at
different times while they were out drinking. We find this argument to be without
merit. The evidence shows Mrs. JLC consumed approximately seven to eight drinks
and was extremely intoxicated while “bar-hopping.” Any inconsistencies in the
testimony of Mrs. JLC were, at best, minor and remotely related to whether the
subsequent events were in fact consensual. Importantly, Mrs. JLC’s description of
the indecent assault never changed. In sum, our independent review of the evidence
establishes that the government proved beyond a reasonable doubt appellant
indecently assaulted Mrs. JLC.

                                  CONCLUSION

      The findings of guilty and the sentence are affirmed.

      Chief Judge TOZZI and JUDGE Ham concur.

                                       FOR THE COURT:




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




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