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

                               No. ACM 39157
                          ________________________

                            UNITED STATES
                                Appellee
                                      v.
                          Mattox A. DAVIS
                 Airman (E-2), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                           Decided 10 April 2018
                          ________________________

Military Judge: J. Wesley Moore.
Approved sentence: Dishonorable discharge, confinement for 40 days,
reduction to E-1, and a reprimand. The sentence was adjudged 20 May
2016 by GCM convened at Tyndall Air Force Base, Florida.
For Appellant: Major Patrick A. Clary, USAF.
For Appellee: Major Mary Ellen Payne, USAF; Captain Anne M.
Delmare, USAF.
Before HARDING, BENNETT, and HUYGEN, Appellate Military
Judges.
Judge BENNETT delivered the opinion of the court, in which Senior
Judge HARDING and Judge HUYGEN joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                       ________________________
BENNETT, Judge:
   A general court-martial composed of officer and enlisted members found
Appellant guilty, contrary to his pleas, of one specification of sexual assault
in violation of Article 120, Uniform Code of Military Justice (UCMJ), 10
                    United States v. Davis, No. ACM 39157


U.S.C. § 920. Appellant was sentenced to a dishonorable discharge, confine-
ment for 40 days, reduction to the grade of E-1, and a reprimand. The conven-
ing authority approved the adjudged sentence, but waived mandatory forfei-
tures of pay for the benefit of Appellant’s dependent child.
     Appellant asserts two assignments of error: (1) Whether Appellant’s con-
viction is legally and factually sufficient, and (2) Whether Appellant’s request
for counsel during an interview with law enforcement was improperly intro-
duced to the members during the Government’s case-in-chief. We find no re-
lief is warranted and affirm the findings and sentence.

                               I. BACKGROUND
    Prior to the sexual assault for which Appellant was charged and convict-
ed, Appellant and his wife, KD, had experimented with anal sex on one occa-
sion. Afterwards, because the anal sex hurt, KD made Appellant promise to
never attempt it again. From time to time, Appellant would suggest that they
should have anal sex, but KD declined each time.
    For KD’s twenty-second birthday, she went out with her friend AS. The
two visited multiple bars and consumed mixed drinks until KD passed out.
AS had to call her husband, Staff Sergeant (SSgt) DS, to pick them up be-
cause AS was too drunk to drive.1 During the ride home, KD remained un-
conscious except when she vomited out of the window of SSgt DS’s pick-up
truck. When they arrived at Appellant and KD’s house, SSgt DS carried KD
inside and placed her into Appellant’s arms.
    Appellant helped KD to their bathroom and held her hair while she vom-
ited. He then helped KD into a bathtub where she faded in and out of con-
sciousness. Eventually, Appellant helped her out of the bathtub and into
their bed.
    Appellant later confessed, during an interview with the Air Force Office of
Special Investigations (AFOSI), that he had anal sex with KD after they went
to bed, but he adamantly denied doing so without her consent. According to
Appellant, KD immediately started to kiss him after they got into bed, and
she thrust her buttocks toward him in a way that made him think she was
interested in having anal sex. He penetrated her anus with his penis, but re-
moved it when KD screamed and started to cry.


1 SSgt DS testified under a grant of testimonial immunity because, sometime after
the incident, KD, AS, and SSgt DS lived together and engaged in a polyamorous af-
fair.




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                    United States v. Davis, No. ACM 39157


   KD’s memory of the event was fragmentary at best, but she testified that
she would not have given Appellant consent to have anal sex with her. She
explained that after their first experience, it was the one sexual activity she
would not engage in. KD did, however, remember waking up as Appellant
penetrated her because of the intense pain she felt. The next morning, KD
noticed that she was bleeding from her anus and she confronted Appellant.
KD was angry to learn Appellant had anal sex with her. She accused Appel-
lant of taking advantage of her, which he denied. Afterwards, KD left Appel-
lant and the couple eventually divorced.
   A few days after the sexual assault, subsequent to conversations she had
with her mother and AS, KD agreed to go for a sexual assault examination.
The nurse examiner found no bleeding or any other evidence of a sexual as-
sault.

                                II. DISCUSSION
A. Legal and Factual Sufficiency
   Pursuant to Article 66(c), UCMJ, 10 U.S.C. § 866(c), we “may affirm only
such findings of guilty and the sentence or such part or amount of the sen-
tence, as [we find] correct in law and fact and [determine], on the basis of the
entire record, should be approved.”
     “The test for legal sufficiency is ‘whether, considering the evidence in the
light most favorable to the prosecution, a reasonable factfinder could have
found all the essential elements beyond a reasonable doubt.’” United States v.
Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (quoting United States v.
Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002)), aff’d, ___ M.J. ___, No. 17-0456,
2018 CAAF LEXIS 177 (C.A.A.F. 22 Mar. 2018). Importantly, “[t]he term rea-
sonable doubt . . . does not mean that the evidence must be free from con-
flict.” Id. (citing United States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986)).
“In applying this test, ‘we are bound to draw every reasonable inference from
the evidence of record in favor of the prosecution.’” Id. (quoting United States
v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001)).
    “The test for a factual sufficiency review . . . is ‘whether, after weighing
the evidence in the record of trial and making allowances for not having per-
sonally observed the witnesses, the members of the service court are them-
selves convinced of appellant’s guilt beyond a reasonable doubt.’” United
States v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017) (quoting United States v.
Oliver, 70 M.J. 64, 68 (C.A.A.F. 2011)). “In conducting this unique appellate
role, we take ‘a fresh, impartial look at the evidence,’ applying ‘neither a pre-
sumption of innocence nor a presumption of guilt’ to ‘make [our] own inde-
pendent determination as to whether the evidence constitutes proof of each


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                     United States v. Davis, No. ACM 39157


required element beyond a reasonable doubt.’” Wheeler, 76 M.J. at 568 (alter-
ation in original) (quoting United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002)).
    The elements of sexual assault, as charged in this case, are: (1) That Ap-
pellant committed a sexual act upon KD, to wit: penetrating her anus with
his penis; (2) That the accused did so by causing bodily harm to KD, to wit:
penetrating her anus with his penis; and (3) That the accused did so without
the consent of KD.
   Appellant acknowledged to his AFOSI interviewers that, on the night in
question, KD was more intoxicated than usual, SSgt DS carried KD into the
house, Appellant held KD’s hair while she vomited, and KD was in and out of
consciousness while she bathed before getting into bed. Furthermore, after
the sexual assault, Appellant wrote KD a text message that read, “I agree we
shouldn’t have had sex that night[.] I was wrong[.] I’ve looked it up and it’s
not something I’ll ever be proud of.”
    Based on the context in which this text message was written and Appel-
lant’s interview with AFOSI, we find that “it” meant the anal sex Appellant
had with KD. The fact that he admitted he was not proud of what he did is
compelling evidence that Appellant knew KD had not consented, on the night
in question, to having anal sex with him.
    On appeal, Appellant renews the argument he made at trial that even if
KD had not consented to anal sex, it was reasonable for Appellant to have the
mistaken belief that she had consented. 2 Appellant suggests that the entire
episode occurred while KD was awake and conscious enough to give Appel-
lant the impression that she was consenting, but not able to form memories
of the event and, hence, unable to recall the fact that she gave or seemed to
give consent.
    KD unequivocally testified it was impossible that she willingly had anal
sex with Appellant, and that Appellant knew she would never willingly have
anal sex with him. To be persuaded by Appellant’s argument, we would have
to believe that, despite her prior refusal to engage in anal sex and her condi-
tion that evening, KD suddenly awoke from her stupor and desired anal sex,
or that it was reasonable, under all the circumstances, for Appellant to mis-
takenly believe she consented to having anal sex. We are not so persuaded.

2 Mistake of fact as to consent is a defense to the sexual assault charged in this case.
It requires that an accused, due to ignorance or mistake, incorrectly believed the vic-
tim consented to the sexual act. To be a viable defense, the mistake of fact must have
been reasonable under all the circumstances. See Rule for Courts-Martial 916(j)(1).




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                     United States v. Davis, No. ACM 39157


    Considering the evidence in the light most favorable to the prosecution, as
we must, we find that a reasonable factfinder could have found Appellant
guilty of all the elements of the charged sexual assault beyond a reasonable
doubt. See Wheeler, 76 M.J. at 568. Furthermore, we ourselves are convinced
of Appellant’s guilt beyond a reasonable doubt. See Rosario, 76 M.J. at 117.
Specifically, we find that there was proof, beyond a reasonable doubt, Appel-
lant penetrated KD’s anus with his penis, that KD did not consent to having
anal sex with Appellant, and that, under all the circumstances, it would have
been unreasonable for Appellant to believe that she had. Therefore, we find
Appellant’s conviction both legally and factually sufficient.
B. Appellant’s Request for Counsel
    Appellant argues that it was plain error and a violation of Military Rule
of Evidence 301(f)(2) for the military judge to allow a video recording of Ap-
pellant’s interview with AFOSI to be played for the members during the find-
ings portion of trial. Appellant bases his argument on the claim that, during
the interview, he twice requested the assistance of counsel.
    Since there was no objection at trial, we review this issue for plain error.
See United States v. Cary, 62 M.J. 277, 278 (C.A.A.F. 2006) (citing United
States v. Powell, 49 M.J. 460, 463, 465 (C.A.A.F. 1998)). “The plain error
standard is met when ‘(1) an error was committed; (2) the error was plain, or
clear, or obvious; and (3) the error resulted in material prejudice to substan-
tial rights.”’ United States v. Maynard, 66 M.J. 242, 244 (C.A.A.F. 2008)
(quoting United States v. Hardison, 64 M.J. 279, 281 (C.A.A.F. 2007)).
    A military judge has an obligation to prevent court-martial members from
hearing evidence that is inadmissible, even when there is no objection. Mil. R.
Evid. 103(e). Military Rule of Evidence 301(f)(2) prohibits, among other
things, the admission of evidence that the accused requested counsel during
official questioning and in exercise of Article 31, UCMJ, 10 U.S.C. § 831.
    During findings, the Government played a video-recording of Appellant’s
interview with AFOSI. At various times during this interview, Appellant was
advised of his right to counsel. We find that Appellant did not invoke his
right to counsel. In fact, it is clear from the record that the opposite is true.
Appellant was properly advised of his right to counsel, he acknowledged his
understanding of this right, and he knowingly waived it multiple times dur-
ing the interview. 3 Therefore, the military judge committed no error, plain or


3 In his brief, Appellant includes two excerpts from his interview with AFOSI. In the
first excerpt, Appellant unambiguously waived his right to counsel and affirmed his
desire to continue with his questioning. The second excerpt includes what appears to
(Footnote continues on next page)


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                    United States v. Davis, No. ACM 39157


otherwise, when he admitted the video-recording of Appellant’s AFOSI inter-
view.
C. Post-Trial Processing Delay
    It took 123 days from the day Appellant was sentenced for the convening
authority to take action. Appellant notes the length of time in a footnote to
his assignment of errors, but he raises no timeliness issue.
    Where the convening authority’s action is not taken within 120 days of
the end of trial, we apply a presumption of unreasonable delay; however,
“[t]he Government can rebut the presumption by showing the delay was not
unreasonable.” United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006).
Moreover, Article 66(c), UCMJ, 10 U.S.C. § 866(c), empowers appellate courts
to grant sentence relief for excessive post-trial delay without the showing of
actual prejudice required by Article 59(a), UCMJ, 10 U.S.C. § 859(a). United
States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002) (citing United States v. Col-
lazo, 53 M.J. 721, 727 (A. Ct. Crim. App. 2000)); see also United States v.
Harvey, 64 M.J. 13, 24 (C.A.A.F. 2006).
   We review de novo whether due process rights were violated because of
post-trial delay. Moreno, 63 M.J. at 135. This review entails consideration of
the four factors set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972): (1) the
length of the delay; (2) the reasons for the delay; (3) Appellant’s assertion of
the right to timely review and appeal; and (4) prejudice. “[These] four factors
are balanced, with no single factor being required to find that post-trial delay
constitutes a due process violation.” Moreno, 63 M.J. at 136 (citing Barker,
407 U.S. at 533).
    After applying the Barker factors, we conclude that the three-day delay,
while presumptively unreasonable, was adequately explained in the Post-
trial Chronology Memorandum prepared by the Staff Judge Advocate (SJA)
for Ninth Air Force. Apparently, Tyndall Air Force Base, where Appellant
was tried, did not have a court reporter. The short delay between sentencing
and action was primarily the result of this manning issue, which was exacer-
bated by a hurricane that hindered normal operations in the legal office.


be a vague request for counsel. However, after comparing the second excerpt to the
verbatim transcript and reviewing the videotaped interview, we found this excerpt to
be incomplete and, therefore, misleading. In this excerpt, Appellant may have said
“okay” when being advised of his right to counsel, but he was indicating that he un-
derstood this right; he was not making a request for counsel. In the future, we cau-
tion counsel to be more careful when reading a record of trial and presenting argu-
ment to this court.




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                   United States v. Davis, No. ACM 39157


Nevertheless, the Government demonstrated sufficient diligence in its post-
trial processing. Also, Appellant did not assert his right to timely review in
his clemency submission, and there was no prejudice. Any post-trial delay in
this case was harmless beyond a reasonable doubt.
    Although not asserting error, Appellant suggests that he might be enti-
tled to Tardif relief for the three-day delay. This court has the authority to
disapprove any portion of a sentence that should not be approved and has set
out a non-exhaustive list of factors we consider when evaluating the appro-
priateness of Tardif relief. United States v. Gay, 74 M.J. 736, 744 (A.F. Ct.
Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016). See also United States v.
Bischoff, 74 M.J. 664, 672 (A.F. Ct. Crim. App. 2015) (citing United States v.
Brown, 62 M.J. 602, 607 (N.M. Ct. Crim. App. 2005). The factors include the
length and reasons for the delay, the length and complexity of the record, the
offenses involved, and evidence of bad faith or gross negligence in the post-
trial process.
    In addition to the findings of our Barker analysis, we find the length of
the post-trial delay in Appellant’s case to be very short, the 632-page record
of trial to be moderately long, and no evidence of bad faith or gross negligence
in the post-trial processing of this case. These factors favor the Government.
Moreover, Appellant’s offense was egregious. Based on the totality of circum-
stances in this case, we conclude that sentence relief under Article 66(c),
UCMJ, is unwarranted.

                              III. CONCLUSION
    The findings and sentence are correct in law and fact, and no error mate-
rially prejudicial to the substantial rights of Appellant occurred. Articles
59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings
and sentence are AFFIRMED.


                    FOR THE COURT



                    CAROL K. JOYCE
                    Clerk of the Court




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