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

                                No. ACM 39315
                           ________________________

                              UNITED STATES
                                  Appellee
                                        v.
                         Roland G. THOMAS
             Master Sergeant (E-7), U.S. Air Force, Appellant
                           ________________________

        Appeal from the United States Air Force Trial Judiciary
                          Decided 28 February 2019
                           ________________________

Military Judge: James E. Key, III.
Approved sentence: Dishonorable discharge, confinement for 2 years,
and reduction to E-3. Sentence adjudged 20 March 2017 by GCM con-
vened at Joint Base San Antonio-Lackland, Texas.
For Appellant: Major Allen S. Abrams, USAF; Brian L. Mizer, Esquire;
Robert D. Graham, Legal Extern. 1
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Captain Pe-
ter F. Kellett, USAF; Mary Ellen Payne, Esquire.
Before JOHNSON, DENNIS, and LEWIS, Appellate Military Judges.
Senior Judge JOHNSON delivered the opinion of the court, in which
Judge DENNIS joined. Judge LEWIS filed a separate opinion concur-
ring in the result.
                           ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                           ________________________


1Mr. Graham was a law student extern and was at all times supervised by an attorney
admitted to practice before this court.
                    United States v. Thomas, No. ACM 39315


JOHNSON, Senior Judge:
    A general court-martial composed of officers convicted Appellant, contrary
to his pleas, of one specification of negligent dereliction of duty and one speci-
fication of sexual assault in violation of Articles 92 and 120, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 892, 920.2 The court members sentenced
Appellant to a dishonorable discharge, confinement for two years, and reduc-
tion to the grade of E-3. The convening authority approved the adjudged sen-
tence but deferred the reduction in rank until action and waived automatic
forfeitures for a period of six months for the benefit of Appellant’s dependent
child.
    Appellant raises six issues on appeal: (1) whether the military judge erred
by excluding evidence pursuant to Military Rule of Evidence (Mil. R. Evid.)
412; (2) whether the evidence is legally and factually sufficient to support Ap-
pellant’s sexual assault conviction; (3) whether trial counsel committed prose-
cutorial misconduct during her argument on findings; (4) whether the court
members’ announcement of findings amounted to a finding of not guilty as to
all specifications alleging sexual assault or whether the announcement was
fatally ambiguous; (5) whether the military judge committed plain error with
respect to “human lie detector” testimony; and (6) whether the Government
has violated Appellant’s due process right to timely appellate review. We find
the members’ announcement of findings did not result in a finding of not guilty
as to all sexual assault specifications and was not fatally ambiguous, and we
find no violation of Appellant’s right to timely post-trial and appellate review.
However, we find error with respect to the exclusion of evidence under Mil. R.
Evid. 412, and therefore we do not address legal and factual sufficiency, “hu-
man lie detector” testimony, or trial counsel’s findings argument.

                                  I. BACKGROUND
    Appellant met Technical Sergeant (TSgt) MP3 in 2006 when they were both
stationed in Germany. They were acquaintances but did not develop a roman-
tic or sexual relationship at that time. TSgt MP left Germany in February



2 Negligent dereliction of duty was a lesser included offense of the charged greater
offense of willful dereliction of duty in violation of Article 92, UCMJ. The court mem-
bers found Appellant not guilty of the greater offense of willful dereliction of duty, of
one specification of sexual assault, of one specification of abusive sexual contact, and
of two specifications of assault consummated by a battery in violation of Articles 92,
120, and 128, UCMJ, 10 U.S.C. §§ 892, 920, 928.
3For simplicity, we refer to TSgt MP by her rank as of the time of her testimony at
Appellant’s trial in March 2017.


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                  United States v. Thomas, No. ACM 39315


2008; Appellant and TSgt MP maintained sporadic contact for several years
afterwards via the Internet.
    In 2014, Appellant and TSgt MP exchanged phone numbers. By October
2014 their communications intensified significantly. Between early October
2014 and December 2014 they exchanged numerous sexually-charged text
messages describing their sexual habits, preferences, and activities they imag-
ined engaging in together. In addition, TSgt MP sent Appellant revealing pho-
tos of herself, and on at least one occasion Appellant and TSgt MP masturbated
together over live video and audio. The sexual and non-sexual text exchanges
gradually ended between January and March 2015, although their tone re-
mained friendly.
    In August 2015, Appellant texted TSgt MP to let her know that at the end
of the month he would be visiting the Tampa, Florida area where TSgt MP
lived. They made plans to meet at TSgt MP’s residence where she lived with
her young son. Appellant arrived at TSgt MP’s home on the afternoon of 28
August 2015. Appellant brought a bottle of cognac that he and TSgt MP began
drinking as they talked. Approximately 30 minutes after Appellant arrived,
TSgt MP received a call from a female friend, Staff Sergeant (SSgt) CW, who
asked if she could come to TSgt MP’s home. TSgt MP told SSgt CW that she
could.
   After SSgt CW arrived with her young daughter, the three adults spent the
evening drinking and socializing while the children played together. SSgt CW
observed that Appellant and TSgt MP giggled and laughed together, but they
did not engage in any physical contact while SSgt CW was present. At one
point Appellant went to a nearby liquor store and returned with tequila and
more cognac. While Appellant was gone SSgt CW asked TSgt MP if TSgt MP
had a romantic relationship with Appellant, and TSgt MP said “no.”
    Over the course of the evening TSgt MP consumed approximately seven
mixed drinks and shots of alcohol. SSgt CW drank considerably less, only one
mixed drink and one shot of alcohol. Appellant drank more than TSgt MP and
SSgt CW combined. At trial, when asked whether TSgt MP showed signs of
intoxication, SSgt CW testified TSgt MP exhibited “[a] lot of giggling, mum-
bling, she kind of zoned in and out,” meaning she would “stare” while sitting
on the couch. In addition, at one point TSgt MP went to the bathroom for an
extended period of time; at another point TSgt MP “zoned out” for approxi-
mately ten seconds while cleaning under a sofa. However, TSgt MP was able
to speak without slurring, to stand, and to walk on her own throughout the
time SSgt CW was present. SSgt CW later described TSgt MP as “tipsy” but
not “that drunk,” and SSgt CW later expressed surprise that TSgt MP could
not remember events from that night.



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                  United States v. Thomas, No. ACM 39315


    Later in the evening, TSgt MP complained that her stomach hurt and lay
on her side on the sofa. At that point SSgt CW perceived that “[e]veryone
look[ed] tired” and “done,” so SSgt CW prepared to leave. SSgt CW put
TSgt MP’s son to bed. Appellant told SSgt CW that he would sleep on
TSgt MP’s sofa. When SSgt CW told TSgt MP she was leaving, TSgt MP re-
sponded “All right.” SSgt CW then departed with her daughter.
    At trial TSgt MP testified that she had not intended to have sex with Ap-
pellant that night. She testified that while she was in the bathroom she found
she had begun menstruating. TSgt MP felt “relieved” because she “was not go-
ing to have sex with [her] period just starting.” She inserted a tampon and
returned to her guests. When TSgt MP later returned to the bathroom to check
her tampon she “doze[d] off” there for some period of time. When she awoke,
she again returned to her guests.
    TSgt MP testified she did not remember SSgt CW leaving. TSgt MP also
did not remember sending a text message to a friend at approximately 0100 on
29 August 2015. TSgt MP’s last memory of that night involved the following
sequence of events: she was standing between her bedroom door and her living
room, with Appellant standing in front of her. TSgt MP recalled she asked Ap-
pellant where SSgt CW was, and Appellant told her SSgt CW had departed.
TSgt MP then asked what time SSgt CW left, and Appellant said he did not
know. TSgt MP took a step into the living room to look at a clock that indicated
the time was 0200. Finally, she remembered the bedroom door closing.
   TSgt MP awoke the next morning lying on her bed, wearing her shirt and
bra but naked from the waist down. She had no memory of sexual intercourse,
but her vagina was “hurting.” TSgt MP could not find or detect her tampon,
but there was no blood on the bed. Appellant was lying next to her wearing
only socks. When Appellant awoke and began to dress, TSgt MP asked him if
there had been a tampon inside her, and she told him her period had started
the night before. Appellant responded that there had been no tampon, nor had
there been any blood on “the rubber.” From these responses TSgt MP inferred
they had had sex.
   Shortly thereafter the two went into TSgt MP’s living room so that Appel-
lant could use TSgt MP’s computer. TSgt MP later testified that in the living
room Appellant made the comment, “You sure know how to ride the tool.”
TSgt MP then took a shower. When she finished, TSgt MP’s son and Appellant
were sitting on the couch. TSgt MP told her son to “go somewhere” and then
gestured for Appellant to join her in her bedroom. TSgt MP and Appellant then
engaged in consensual sexual intercourse. At trial, TSgt MP explained her
thoughts at the time:




                                       4
                   United States v. Thomas, No. ACM 39315


       A. [TSgt MP] In the shower I was thinking, “No. This -- I’ve
       known him, you know, -- known him, you know, for the last nine
       -- since 2006. There was no way that we had sex without me
       knowing. I’m just trying to replay every thought possible of what
       did I do to indicate that I wanted sex?” So I felt the need to actu-
       ally have sex with him.
       ....
       Q. [Trial Counsel] How did that go?
       A. Awkward. It was painful. It was -- it wasn’t organic.
       ....
       Q. Okay. And you say it was “awkward.” What makes it awk-
       ward?
       A. Because I didn’t want it.
       Q. Okay.
       A. I didn’t know I had it the night before and I didn’t want it the
       next day but I felt like I had to do it.
       Q. Okay. Was it painful?
       A. Mentally, it was painful. It hurt me to do that again because
       my vagina was already hurting from the night before.
       Q. Okay. Did the two of you -- did you finish having sex?
       A. The next day?
       Q. Yeah.
       A. No. It was 30 seconds long at the most.
       Q. Okay. Did he ejaculate?
       A. No, he didn’t.
       Q. Okay. What happened after that?
       A. After that it was -- he left. I walked him out of the bedroom,
       walked him to the door, we might have exchanged another hug
       and he was on his way.
    Over the next two days Appellant and TSgt MP exchanged a series of
friendly texts in which they discussed, inter alia, potentially meeting for dinner
with other friends. On 30 August 2015 Appellant departed for Texas.




                                        5
                    United States v. Thomas, No. ACM 39315


    After “a couple of days,” TSgt MP’s missing tampon came out. On 1 Sep-
tember 2015, TSgt MP informed Appellant about the tampon by text. Appel-
lant responded, “u lying?!! [sic].” TSgt MP answered, “I could die from that. Not
lying.” Appellant replied, “Damn!! That’s crazy [ ].” TSgt MP followed this ex-
change with a series of more probing texts seeking more information about
what happened on the night of 28–29 August 2015. Appellant responded that
he did not remember that night either but he was “certain [they] wouldn’t have
did [sic] anything” had he known she had a tampon inserted.
    On 2 September 2015 TSgt MP went to the urgent care clinic at MacDill
Air Force Base because of her concerns regarding having the tampon lodged
inside her for several days. Her meeting with a physician’s assistant led to an
exam by a sexual assault nurse examiner (SANE) and to TSgt MP’s interview
by the Air Force Office of Special Investigations (AFOSI).

                                   II. DISCUSSION
A. Mil. R. Evid. 412
    1. Additional Background
        a. Defense Motion and Military Judge’s Ruling
    Before trial, the Defense submitted a notice and motion to admit evidence
of TSgt MP’s sexual behavior and predisposition pursuant to Mil. R. Evid. 412.4
Specifically, the Defense sought to introduce evidence of the text messages Ap-
pellant and TSgt MP exchanged dating back to October 2014, of “flirtatious”
behavior between TSgt MP and Appellant on the night of the alleged sexual
assault, and of the consensual sexual intercourse between Appellant and
TSgt MP on the morning after the alleged assault. The Government and
TSgt MP—through counsel—generally opposed the defense motion.
    In accordance with Mil. R. Evid. 412(c)(2), the military judge conducted a
closed hearing during which he received evidence and heard arguments on the
motion. In the course of the hearing the Defense modified the scope of its re-
quest. After the hearing the military judge issued a written ruling on the mo-
tion. We summarize below aspects of the ruling relevant on appeal.
   The military judge rejected the Defense’s argument that evidence of sex-
ually explicit texts between Appellant and TSgt MP between October 2014 and
February 2015 was admissible under Mil. R. Evid. 412(b)(1)(B) as evidence of


4 The trial transcript, appellate exhibits, and briefs addressing this excluded evidence
were sealed pursuant to Rule for Courts-Martial (R.C.M.) 1103A. These portions of the
record and briefs remain sealed, and any discussion of sealed material in this opinion
is limited to that which is necessary for our analysis. See R.C.M. 1103A(b)(4).


                                           6
                  United States v. Thomas, No. ACM 39315


specific sexual behavior between an alleged victim and the accused offered by
the Defense to prove consent. Although the military judge acknowledged that
whether TSgt MP consented on the night in question was a relevant issue, he
reasoned that the sexual text messages between October 2014 and February
2015 were unrelated to the August 2015 encounter and too remote in time to
be relevant. In short, the military judge ruled the texts were inadmissible as
to consent.
    The military judge did permit the Defense to cross-examine TSgt MP about
the fact that she and Appellant exchanged sexually explicit text messages as
constitutionally required evidence under Mil. R. Evid. 412(b)(1)(C), but only for
the limited purpose of impeaching TSgt MP’s credibility. The military judge
reasoned that, to the extent TSgt MP minimized her prior interactions with
Appellant in her statements to the AFOSI and potentially to others, the De-
fense was entitled to use the fact that she had engaged in such sexual ex-
changes for the limited purpose of challenging her credibility. However, the
military judge only permitted questions on cross-examination about the gen-
eral nature of the text messages and forbade the Defense from introducing the
texts themselves or from reading them or having them read on the record. The
military judge also permitted the Defense to cross-examine TSgt MP about the
fact that she engaged in “mutual masturbation” one time with Appellant for
the similar limited purpose of challenging TSgt MP’s credibility pursuant to
Mil. R. Evid. 412(b)(1)(C).
   The military judge permitted evidence of the consensual sexual intercourse
on the morning after the alleged assault under Mil. R. Evid. 412(b)(1)(C) as
evidence constitutionally required to permit Appellant to present a defense,
specifically that there was no sexual assault on the night in question because
TSgt MP actually consented.
       b. TSgt MP’s Testimony
    On direct examination, TSgt MP touched briefly on her relationship with
Appellant prior to August 2015, including that she had “sexted or flirted” with
Appellant between October 2014 and December 2014. She then testified re-
garding her memory of the events following Appellant’s arrival at her home on
28 August 2015, as described above. On cross-examination, TSgt MP acknowl-
edged that she described Appellant to the AFOSI agents as “somebody [she]
hadn’t seen in 10 years, a buddy, an acquaintance, someone [she] had inno-
cently flirted with in the past.” She further acknowledged on cross-examina-
tion that she had “sexted” with Appellant “throughout the fall of 2014” and
that one time they “engaged in mutual masturbation over Facetime,” although
she continued to characterize this as “innocent flirting.” TSgt MP also agreed
that it was “fair to say” that, if she and Appellant had “met up” in the fall of
2014, the “plan” was they would “have sex.”

                                       7
                   United States v. Thomas, No. ACM 39315


    Trial defense counsel then questioned TSgt MP about texts from August
2015 that the Government had introduced as a prosecution exhibit. Specifi-
cally, trial defense counsel questioned her about a text from Appellant to the
effect that TSgt MP might repay some of a “debt” she owed him when they met
in Tampa and TSgt MP’s response that the “debt” had already been paid.
TSgt MP denied trial defense counsel’s suggestion that the reference to “debt”
was a reference to sex and testified it was instead simply a reference to betting
on sports. Trial defense counsel then requested a closed hearing pursuant to
Mil. R. Evid. 412. The Defense argued the military judge should permit cross-
examination regarding TSgt MP having previously sent Appellant, in one of
the excluded text messages, a sexually charged photo of herself as payment for
a “debt.” The military judge rejected the Defense’s argument and reopened the
court. The military judge later clarified on the record that, as to this particular
hearing regarding references to a “debt,” he had also determined to exclude the
evidence under Mil. R. Evid. 403 because “whatever minimal probative value
that information had was outweighed by the danger of unfair prejudice, cumu-
lative presentation of evidence as well as waste of time.”
       c. Instructions
   The military judge provided the court members instructions limiting how
they could use evidence of TSgt MP’s sexual text messages and mutual mas-
turbation with Appellant:
       Evidence has been introduced indicating that [TSgt MP] has en-
       gaged in past acts of sending messages of a sexual nature and
       engaging in an instance of mutual masturbation with [Appel-
       lant]. This evidence should be considered by you as to its impact,
       if any, on [TSgt MP]’s credibility. That is, to the extent it contra-
       dicts other statements that she may have made. This evidence
       may not be used to show [TSgt MP] consented to the charged of-
       fense, or for any other purpose.
(Emphasis added).
   2. Law
    “We review a military judge’s decision to admit or exclude evidence for an
abuse of discretion. ‘A military judge abuses his discretion if his findings of fact
are clearly erroneous or his conclusions of law are incorrect.’” United States v.
Erikson, 76 M.J. 231, 234 (C.A.A.F. 2017) (citation omitted) (quoting United
States v. Olson, 74 M.J. 132, 134 (C.A.A.F. 2015)). The application of Mil. R.
Evid. 412 to proffered evidence is a legal issue that appellate courts review de
novo. United States v. Roberts, 69 M.J. 23, 27 (C.A.A.F. 2010) (citation omit-
ted).



                                         8
                  United States v. Thomas, No. ACM 39315


    Mil. R. Evid. 412 provides that, in any proceeding involving an alleged sex-
ual offense, evidence offered to prove the alleged victim engaged in other sexual
behavior or has a sexual predisposition is generally inadmissible, with three
limited exceptions, the second and third of which are pertinent to this case.
The burden is on the defense to overcome the general rule of exclusion by
demonstrating an exception applies. United States v. Carter, 47 M.J. 395, 396
(C.A.A.F. 1998) (citation omitted).
    The second exception under Mil. R. Evid. 412 includes “evidence of specific
instances of sexual behavior by the alleged victim with respect to the person
accused of the sexual misconduct offered by the accused to prove consent . . . .”
Mil. R. Evid. 412(b)(1)(B). Evidence that fits this exception may nevertheless
be excluded if the probative value of the evidence is outweighed by the danger
of unfair prejudice to the alleged victim’s privacy. Mil. R. Evid. 412(c)(3). In
addition, like other evidence, evidence otherwise admissible under Mil. R.
Evid. 412(b)(1)(B) may be excluded “if its probative value is substantially out-
weighed by a danger of . . . unfair prejudice, confusing the issues, misleading
the members, undue delay, wasting time, or needlessly presenting cumulative
evidence.” Mil. R. Evid. 403. Where a military judge conducts a proper balanc-
ing test under Mil. R. Evid. 403, an appellate court will not overturn the ruling
absent a clear abuse of discretion. United States v. Ediger, 68 M.J. 243, 248
(C.A.A.F. 2010) (quoting United States v. Ruppel, 49 M.J. 247, 251 (C.A.A.F.
1998)). However, we “give[ ] military judges less deference if they fail to artic-
ulate their balancing analysis on the record, and no deference if they fail to
conduct the Rule 403 balancing.” United States v. Manns, 54 M.J. 164, 166
(C.A.A.F. 2000) (citation omitted).
    The third exception under Mil. R. Evid. 412 provides that the evidence is
admissible if its exclusion “would violate the constitutional rights of the ac-
cused.” Mil. R. Evid. 412(b)(1)(C). Generally, evidence of other sexual behavior
by an alleged victim is constitutionally required and “must be admitted within
the ambit of [Mil. R. Evid.] 412(b)(1)(C) when [it] is relevant, material, and the
probative value of the evidence outweighs the dangers of unfair prejudice.”
United States v. Ellerbrock, 70 M.J. 314, 318 (C.A.A.F. 2011) (citation omitted).
   3. Analysis
    Appellant contends the military judge abused his discretion by excluding
the sexual texts and testimony regarding mutual masturbation as evidence of
consent pursuant to Mil. R. Evid. 412(b)(1)(B) and, with respect to TSgt MP’s
credibility, by limiting the Defense to the fact that she exchanged sexually ex-
plicit texts with Appellant while excluding the texts themselves pursuant to
Mil. R. Evid. 412(b)(1)(C). Appellant argues these exclusions enabled TSgt MP
(through her testimony) and trial counsel (through her argument) to mischar-
acterize the nature of TSgt MP’s relationship with Appellant, thereby hobbling

                                        9
                   United States v. Thomas, No. ACM 39315


the Defense. We conclude that the military judge did abuse his discretion by
failing to admit evidence offered by the Defense to prove consent pursuant to
Mil. R. Evid. 412(b)(1)(B).5
       a. Mil. R. Evid. 412(b)(1)(B) Exception
    In its motion the Defense contended the evidence of sexual texts and mu-
tual masturbation was admissible under Mil. R. Evid. 412(b)(1)(B) because it
demonstrated TSgt MP’s “sexual familiarity and comfort” with Appellant,
“thereby making it more likely [that she] consented to any other sexual behav-
ior with him.” In other words, the Defense argued that this evidence made it
more likely that sexual intercourse on the night in question was consensual
rather than a sexual assault. The military judge conceded that consent was a
relevant issue because if TSgt MP actually consented then she necessarily had
the capacity to consent, and therefore Appellant could not be guilty on the the-
ory of sexual assault charged by the Government—that TSgt MP was incapable
of consenting due to impairment by alcohol. See Article 120(b)(3)(A), UCMJ, 10
U.S.C. § 920(b)(3)(A).
   However, the military judge essentially concluded the sexual text ex-
changes and mutual masturbation were too remote in time to be relevant to
the events of 28–29 August 2015. He explained in his written ruling:
       These text messages start almost 11 months prior to the alleged
       offense and end 7 and a half months prior to the alleged offense.
       Although many are sexual in nature, none discuss [Appellant]
       and [TSgt] MP planning to meet up in August 2015. The mes-
       sages to [sic] periodically refer to plans to meet up, however,
       there is no discussion of meeting up between the end of the mes-
       sages in this period and 22 August 2015. These text messages do
       not provide any information as to whether or not [TSgt] MP con-
       sented to sexual activity the night of 28 August 2015, nor do they
       provide any information as to her capability to consent that
       night. The fact that [Appellant] and [TSgt] MP exchanged sex-
       ually explicit texts 7 and a half months earlier is too remote to
       have any bearing on [TSgt] MP’s actual consent or capability to
       consent the night of 28 August 2015.
   We agree with the military judge that evidence meeting an exception un-
der Mil. R. Evid. 412(b) must also be relevant to be admissible. See Mil. R.


5Because we conclude that the error with regard to Mil. R. Evid. 412(b)(1)(B) requires
us to set aside Appellant’s sexual assault conviction, we do not address whether the
military judge erred with respect to the limitations imposed on evidence admitted un-
der Mil. R. Evid. 412(b)(1)(C) as to credibility.


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                  United States v. Thomas, No. ACM 39315


Evid. 402(b) (“Irrelevant evidence is not admissible.”); 412(c)(3) (stating evi-
dence meeting a Mil. R. Evid. 412(b) exception may be admissible if, inter alia,
it is “relevant” for such a purpose). We further agree that the proffered evi-
dence was not relevant to determine the degree of TSgt MP’s intoxication on
the night of 28 August 2015. However, we find the military judge erred in his
conclusion that this evidence had “no bearing” on whether or not TSgt MP ac-
tually consented.
     Relevance is a “low threshold.” Roberts, 69 M.J. at 27. Evidence is relevant
if it has any tendency to make the existence of a fact more probable or less
probable than it would be without the evidence. Mil. R. Evid. 401(a). We find
the evidence that TSgt MP exchanged sexually charged messages with Appel-
lant for approximately three months, discussed meeting to engage in sexual
intercourse with him, and masturbated with him (albeit by remote means) has
some tendency to make it more probable that the sexual intercourse they en-
gaged in upon her next meeting with him was consensual, as compared to, for
example, someone with whom TSgt MP had never sexted, masturbated, or dis-
cussed meeting for sex. Although the lapse of time may diminish the relevance,
it does not eliminate the relevance. This is particularly so where sexual mat-
ters were such a prominent feature of their interactions. Of course, we do not
find that these activities by themselves prove consent to subsequent sexual in-
tercourse. See Article 120(g)(8)(A), UCMJ, 10 U.S.C. § 920(g)(8)(A). However,
as we have said before, proof of consent is not the test for relevance, and “[i]t
is enough that the evidence had a tendency to support the Defense’s case.”
United States v. Harrington, No. ACM 39223, 2018 CCA LEXIS 456, at *16
(A.F. Ct. Crim. App. 25 Sep. 2018) (unpub. op.). The Defense’s theory of the
case was that Appellant and TSgt MP engaged in consensual sexual inter-
course on the night of 28–29 August 2015, which came about as a continuation
of consensual sexual interactions that dated back to October 2014. Evidence of
those interactions was therefore relevant and significant for the Defense’s case.
    The Government relies on our sister court’s opinion in United States v. An-
dreozzi, 60 M.J. 727, 739 (A. Ct. Crim. App. 2004), for the proposition that ev-
idence is “relevant” under Mil. R. Evid. 412(b)(1)(B) when the prior sexual ac-
tivity and the charged activity are similar and they are “distinctive and unu-
sual.” The Government misconstrues Andreozzi, which actually states “[r]ele-
vance of prior sexual activity between an accused and an alleged victim is in-
creased by the degree of its similarity to the charged conduct, and whether the
sexual activity is distinctive and unusual.” Andreozzi, 60 M.J. at 739. Thus
similarity and distinctiveness are not indispensable qualities of relevant Mil.
R. Evid. 412(b)(1)(B) evidence but simply enhance the relevance. Indeed, in
Andreozzi the court specifically disagreed with the military judge’s conclusion
that the evidence in question was not relevant to show consent. Id. Ultimately,



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                   United States v. Thomas, No. ACM 39315


the court found that the evidence was excludable not because it had no rele-
vance—it did—but because the violence and coercion involved in the charged
acts were highly dissimilar from the prior consensual acts, reducing the rele-
vance and tipping the balancing tests of Mil. R. Evid. 412(c)(3) and Mil. R. Evid.
403 against admission. Id. at 739–40.
       b. Mil. R. Evid. 412(c)(3) and Mil. R. Evid. 403 Balancing Tests
    This brings us to the next stage of our analysis. Although relevant and oth-
erwise admissible under Mil. R. Evid. 412(b)(1)(B), evidence of an alleged vic-
tim’s prior sexual behavior may be excluded under Mil. R. Evid. 412(c)(3) if the
probative value is outweighed by the danger of unfair prejudice to the alleged
victim’s privacy or under Mil. R. Evid. 403 if the probative value is substan-
tially outweighed by the danger of countervailing considerations, such as un-
fair prejudice, confusion of the issues, misleading the members, undue delay,
and cumulativeness.
     Having erroneously concluded the sexual texts and evidence of mutual
masturbation had no relevance as to consent, the military judge did not con-
duct any analysis balancing Appellant’s Mil. R. Evid. 412(b)(1)(B) interest
against TSgt MP’s privacy interests. Accordingly, we review this question de
novo. The military judge did not conduct or refer to any balancing under Mil.
R. Evid. 403 in his written ruling on the defense motion or in conjunction with
it. As described above, he did later invoke the Mil. R. Evid. 403 balancing test
in a very limited fashion with respect to the Defense’s effort to explore the ref-
erence to “debt” in texts admitted as part of a prosecution exhibit. However,
this limited balancing is of scant significance to our present analysis for three
reasons. First, it narrowly addressed a passing reference to a “debt” rather
than the broad expanse of sexual communications between TSgt MP and Ap-
pellant. Second, it did so specifically not in the context of evidence offered to
prove consent under Mil. R. Evid. 412(b)(1)(B), but in the context of the mili-
tary judge’s ruling that the Defense could refer generally to sexual texts only
to challenge TSgt MP’s credibility as a witness under Mil. R. Evid. 412(b)(1)(C),
and to do so without using the content of the texts themselves, an aperture the
Defense was seeking to expand. Third, any balancing under Mil. R. Evid. 403
as to evidence of consent under Mil. R. Evid. 412(b)(1)(B) would have been se-
verely hampered by the military judge’s failure to acknowledge, even for pur-
poses of argument and analysis, that the evidence had any probative value.
Accordingly, we do not afford any deference to the military judge’s decision to
exclude the evidence. See Manns, 54 M.J. at 166.
   As for Mil. R. Evid. 412(c)(3), we do not find TSgt MP’s privacy interests
outweigh the probative value of the evidence such that the Defense should have
been precluded from any use of the evidence to prove consent. It is clear that
such privacy interests would not preclude the Defense from using evidence of

                                       12
                  United States v. Thomas, No. ACM 39315


the fact of a “sexting” relationship and mutual masturbation to prove consent
at least to the same extent the military judge independently permitted the De-
fense to use such evidence for the limited purpose of attacking TSgt MP’s cred-
ibility. Such use would not expose TSgt MP to greater embarrassment or in-
trusion; it would simply allow the Defense to make additional use of infor-
mation the Defense was already permitted to bring out.
    Moreover, we are not persuaded that any incremental harm to TSgt MP’s
privacy interests from portions of the actual text messages with Appellant be-
yond information that was already to be exposed in court would outweigh the
probative value of the evidence. The texts included details that were probative
of whether TSgt MP and Appellant engaged in consensual sex on the night in
question. For example:
      Appellant and TSgt MP repeatedly discussed Appellant traveling to
       meet TSgt MP in person over the course of their “sexting” relationship.
       The texts also included allusions to the fact that Appellant deployed
       overseas from January 2015 until August 2015. These exchanges are
       more concrete than TSgt MP’s acknowledgment on cross-examination
       that “the plan” was she would have had sex with Appellant had they
       met in the fall of 2014. Had the court members received this infor-
       mation, and had the Defense been allowed to use it as evidence of con-
       sent, the members might have been more receptive to a defense argu-
       ment that the 28 August 2015 encounter in Tampa was the fulfillment
       of longstanding plans to meet to engage in sexual activity that were
       interrupted by Appellant’s deployment.
      Appellant and TSgt MP repeatedly referred to the prospect of engaging
       in sexual intercourse while TSgt MP was menstruating. Appellant ex-
       pressed his willingness to do so. Although TSgt MP’s comments were
       ambiguous as to whether or not she would be willing, this evidence,
       coupled with her testimony that she did engage in consensual vaginal
       intercourse the morning after the alleged assault—after her period
       started—had the potential to counter TSgt MP’s testimony that she was
       not going to have sex with Appellant on the night of 28–29 August 2015
       because her period had started.
      Notwithstanding TSgt MP’s testimony that Appellant’s August 2015
       comment about her repaying a “debt” when they met was simply a ref-
       erence to sports betting, the texts indicate that Appellant’s prior refer-
       ences to “debt” did have sexual connotations. For example, at one point
       TSgt MP sent Appellant a revealing photo of herself in supposed pay-
       ment of this “debt.”
Accordingly, we conclude Mil. R. Evid. 412(c)(3) would not bar this evidence.



                                       13
                  United States v. Thomas, No. ACM 39315


    Similarly, we find that countervailing interests such as those articulated
in Mil. R. Evid. 403 would not have substantially outweighed the probative
value of the evidence. Again, permitting the Defense to make additional use of
evidence the military judge was already allowing for purposes of credibility
would not have increased the prejudice to TSgt MP’s privacy interests. It would
not have generated undue delay or been cumulative. As for the risk of confus-
ing or misleading the members, permitting the members to consider this evi-
dence as to consent as well as credibility would likely have simplified rather
than complicated the members’ deliberations. As it was, the military judge’s
instructions required them to use the evidence only for the limited purpose of
assessing TSgt MP’s credibility in light of other statements she might have
made, while disregarding it for the common sense and substantive purpose of
assessing what the prior sexual interactions between TSgt MP and Appellant
indicated regarding the critical issue of consent on the night in question. In
other words, allowing use under Mil. R. Evid. 412(b)(1)(B) as well as (C) would
have permitted the members to take off the legal blinders to a significant ex-
tent and simplified their deliberations.
    Furthermore, as described above, we find the details of the texts had sig-
nificant probative value as to consent under Mil. R. Evid. 412(b)(1)(B) well be-
yond TSgt MP’s acknowledgment of a general “sexting” or “flirting” relation-
ship. Moreover, the texts generally speak for themselves, and admitting them
as an additional exhibit would not have unduly confused the members or bur-
dened the court. Accordingly, we find the military judge erred by excluding
evidence of text messages and mutual masturbation between TSgt MP and Ap-
pellant offered by the Defense to prove consent pursuant to Mil. R. Evid.
412(b)(1)(B).
       c. Prejudice
    The test for whether a nonconstitutional error was harmless is “‘whether
the error itself had substantial influence’ on the findings.” United States v.
Walker, 57 M.J. 174, 178 (C.A.A.F. 2002) (quoting Kotteakos v. United States,
328 U.S. 750, 765 (1946)). “Whether an error, constitutional or otherwise, was
harmless, is a question of law that we review de novo. . . . For nonconstitutional
errors, the Government must demonstrate that the error did not have a sub-
stantial influence on the findings.” United States v. Hall, 66 M.J. 53, 54
(C.A.A.F. 2008) (alteration in original) (quoting United States v. McCollum, 58
M.J. 323, 342 (C.A.A.F. 2003)) (additional citation omitted). In assessing
whether the erroneous exclusion or admission of evidence had “substantial in-
fluence” we consider four factors: “(1) the strength of the Government’s case,
(2) the strength of the defense case, (3) the materiality of the evidence in ques-
tion, and (4) the quality of the evidence in question.” United States v. Clark, 62



                                       14
                  United States v. Thomas, No. ACM 39315


M.J. 195, 200–01 (C.A.A.F. 2005) (quoting United States v. Kerr, 51 M.J. 401,
405 C.A.A.F. 1999)).
   As to the first factor, the Government’s case that Appellant sexually as-
saulted TSgt MP had significant weaknesses. As the military judge instructed
the members, the Government was required to prove the following elements
beyond a reasonable doubt:
       (1) That at or near Tampa, Florida, on or about 29 August 2015,
       [Appellant] committed a sexual act upon [TSgt MP], to wit: pen-
       etrating her vulva with his penis; and
       (2) That [Appellant] did so when [TSgt MP] was incapable of con-
       senting to the sexual act due to impairment by an intoxicant,
       and that condition was known or reasonably should have been
       known to [Appellant].
   The military judge further instructed the members regarding the
capacity to consent:
       A person is “incapable of consenting” when she lacks the cogni-
       tive ability to appreciate the sexual conduct in question or the
       physical or mental ability to make or to communicate a decision
       about whether she agrees to the conduct.
    The Government called only two witnesses regarding this offense, SSgt CW
and TSgt MP herself. SSgt CW departed before the alleged assault and did not
witness it; TSgt MP had no memory of it. The only documentary evidence the
Government introduced was the relatively brief series of texts Appellant and
TSgt MP exchanged (fewer than 40) from 22 August 2015 when Appellant in-
formed TSgt MP he was coming to Tampa until his arrival at her residence on
28 August 2015. With no direct witnesses to the assault itself, and no scientific
or medical evidence, the Government relied on circumstantial evidence, most
notably the evidence that TSgt MP had a tampon inserted when the penetra-
tion took place. The Government presented adequate evidence that the alleged
sexual act occurred. However, several factors tend to cast doubt as to whether
TSgt MP was incapable of consenting or might have in fact consented to the
sexual act, including inter alia:
      SSgt CW’s perception that TSgt MP was merely “tipsy” and not “that
       drunk,” and her observations that TSgt MP was able to speak without
       slurring, to stand and walk unassisted, and to acknowledge SSgt CW
       when SSgt CW told TSgt MP she was leaving for the night;
      TSgt MP’s last memory of the night, which indicated that at 0200 she
       was capable of speaking, understanding what Appellant said, standing,
       taking a step on her own, and reading a clock;



                                       15
                   United States v. Thomas, No. ACM 39315


       TSgt MP’s willingness not only to engage in consensual sex with Appel-
        lant the morning after the alleged assault but to initiate it;
       The series of friendly messages between TSgt MP and Appellant after
        the night in question that continued until TSgt MP’s tampon reap-
        peared.
    As to the second factor, the weaknesses in the Government’s case strength-
ened the Defense’s case. In addition, the Defense called witnesses of its own.
The most significant defense witness regarding the alleged sexual assault
against TSgt MP was Dr. MC, who testified as an expert in forensic psychology
and sleep medicine.6 Among other subjects, Dr. MC explained that a memory
blackout caused by alcohol consumption is distinct from alcohol-induced im-
pairment of motor skills and executive functions such as judgment, decision-
making, and abstract reasoning. In particular, Dr. MC explained that someone
experiencing a blackout may still be capable of performing complex tasks, for
example, flying an airplane or performing surgery, such that “there really isn’t
anything that a person can do in a normal waking state or a normal non-black-
out state that they can’t do when they are blacked out.” In other words, accord-
ing to Dr. MC, TSgt MP’s testimony that she could not remember the sexual
act creates no inference that she was incapable of consenting when it occurred.
At the same time, consuming alcohol affects the inhibitory centers in the brain
such that, for example, a drunk person is more likely to engage in sexual prac-
tices they would not engage in while sober.
    Next we turn to the quality and materiality of the erroneously-excluded
evidence of sexual texts and mutual masturbation offered to prove consent un-
der Mil. R. Evid. 412(b)(1)(B). We acknowledge that the significance of the ev-
idence is affected by how close or distant in time the “sexting” and mutual mas-
turbation were to the charged offense and that materiality increases with prox-
imity. Nevertheless, although the “sexting” and mutual masturbation occurred
several months before the alleged assault, we find significant materiality. At
trial, TSgt MP minimized her sexual interest in Appellant as of August 2015
and insisted she did not intend to have sexual intercourse with him that night.
The military judge’s exclusion of the evidence as to consent and his instruction
that forbade the members from using the evidence for consent or for any pur-
pose other than TSgt MP’s credibility hindered the presentation of the defense


6 Regarding the alleged sexual assault against TSgt MP, the Defense also called the
physician’s assistant and the SANE who saw TSgt MP on 2 September 2015. Both
provided some testimony suggesting TSgt MP gave them somewhat incomplete or mis-
leading information regarding the alleged sexual assault and its aftermath. For exam-
ple, the physician’s assistant testified TSgt MP omitted the consensual sex on the
morning of 29 August 2015, and the SANE’s notes reflected TSgt MP told her Appel-
lant had admitted to having sex with her while she was “unconscious.”


                                         16
                  United States v. Thomas, No. ACM 39315


theory that TSgt MP actually consented to sexual intercourse that as a contin-
uation of their prior consensual sexual activity, which continued after the al-
leged assault when TSgt MP initiated consensual sex the following morning.
    This was a very close case, with effectively no witness to the alleged assault
itself, no scientific or medical evidence presented by the Government, and sig-
nificant weaknesses in the evidence that TSgt MP had been incapable of con-
sent. We cannot know which factors ensured the balance of the scales tipped
in favor of the Prosecution during the members’ deliberations. We are not sat-
isfied that the erroneous exclusion of evidence of prior sexual interactions be-
tween Appellant and TSgt MP as evidence of consent did not exert in this case
a substantial influence on the members’ finding of guilty as to the sexual as-
sault. Accordingly, we cannot affirm the finding.
B. Announcement of Findings
   1. Additional Background
    The court members were provided a worksheet to aid them in their delib-
erations and announcement of findings. The worksheet provided several op-
tions, including the option to record that Appellant was found “Not Guilty” of
all charges and specifications, “Guilty” of all charges and specifications, or
mixed findings of “Not Guilty” and “Guilty” of the three charges and several
specifications. If the members made mixed findings, the worksheet provided
the following options specifically with respect to Charge II, which alleged three
violations of Article 120, UCMJ, including Specification 3, the alleged sexual
assault against TSgt MP:
       Of all the Specifications of Charge II: (GUILTY) (NOT GUILTY);
       Of Specification 1 of Charge II: (GUILTY) (NOT GUILTY);
       Of Specification 2 of Charge II: (GUILTY) (NOT GUILTY);
       Of Specification 3 of Charge II: (GUILTY) (NOT GUILTY);
              Of Charge II: (GUILTY) (NOT GUILTY).
    The military judge instructed the president of the court that, once he “fin-
ished filling in what is applicable, please line out or cross out everything that
is not applicable.”
   The president announced the following findings with respect to Charge II
and its specifications:
       Of all Specifications in Charge II: NOT GUILTY;
       Of Specification 1 of Charge II: NOT GUILTY;
       Of Specification 2 of Charge II: NOT GUILTY;



                                       17
                   United States v. Thomas, No. ACM 39315


       Of Specification 3 of Charge II: GUILTY;
       Of Charge II: GUILTY.
    After the military judge excused the members, trial defense counsel asked
that the recording of the findings be replayed because he was “not even sure
we understood the findings.” The military judge had the bailiff retrieve the
findings worksheet and then reexamined it. He stated, “[a]s to specifications of
Charge II, we’ll have to have them come in and re-announce. What they have
annotated is of all the specifications of Charge II, ‘Not Guilty,’ but they’ve also
annotated ‘Guilty’ with respect to Specification 3 of Charge II. And then of
Charge II, ‘Guilty.’”
    The military judge had the members return to the courtroom and engaged
in the following colloquy with the president and senior defense counsel:
       MJ [Military Judge]: Lieutenant Colonel [M], after we looked at
       the worksheet, we just have one question that we’re going to
       seek clarification from you. I’m going to provide the worksheet
       back to you. The section I would like you to look at there is a line
       about -- as to all of the specifications of Charge II. It appears
       that “Not Guilty” is annotated; however, there is also a “Guilty”
       finding annotated as to Specification 3 of Charge II. So it might
       be an either/or proposition. Either all the specifications of
       Charge II are “Not Guilty” or there is a “Guilty” in Specification
       3. And so I’ll provide this back to you. Take a look at it and then
       let me know what the Court’s intent is.
       ....
       SDC [Senior Defense Counsel]: Your Honor, perhaps it would be
       best if they are able to discuss it in the deliberation room?
       MJ: We’ll see. I think it may be an easy fix but let me know if
       you prefer to return to the deliberation room.
       PRES [ ]: No, Sir. I think we’re just confused on how to best relay
       our thoughts.
       MJ: So, in the line where you have all of the specifications of
       Charge II.
       PRES [ ]: Yes, Sir.
       MJ: There’s either a “Not Guilty” or a “Guilty” you would put --
       I see what you’re saying. If your intent is to find [Appellant]
       “Guilty” of one of the specifications, then you would not read that
       sentence at all. You would mark that entire sentence out.
       PRES [ ]: So both of the lines, “Guilty” and “Not Guilty?”

                                        18
                  United States v. Thomas, No. ACM 39315


       MJ: Correct.
       [The president annotated the change on the Findings Work-
       sheet.]
       ....
       MJ: Thank you. As the form is now annotated, it’s -- you con-
       cluded that [Appellant] is “Not Guilty” of Specification 1 of
       Charge II; “Not Guilty” of Specification 2 of Charge II; and
       “Guilty” of Specification 3 of Charge II. Is that correct?
       PRES [ ]: Yes, sir. That’s correct.
       MJ: And that would be “Guilty” of Charge II -- right?
       PRES [ ]: Yes, sir.
       MJ: Defense?
       SDC: We understand, Your Honor.
    The original findings worksheet included as an appellate exhibit in the rec-
ord of trial reflects that both the “Guilty” and “Not Guilty” options as to “all
the Specifications of Charge II” have been crossed out. The following lines on
the worksheet reflect findings of “Not Guilty” as to Specifications 1 and 2, with
“Guilty” crossed out and findings of “Guilty” as to Specification 3 and as to
Charge II, with “Not Guilty” crossed out.
   2. Law
     Whether a verdict is ambiguous is a question of law we review de novo.
United States v. Ross, 68 M.J. 415, 417 (C.A.A.F. 2010) (citing United States v.
Rodriguez, 66 M.J. 201, 203 (C.A.A.F. 2008)). “[T]he right to announcement of
all findings in open court is a substantial right of the accused. However, though
an error which affects a substantial right of an accused is presumptively prej-
udicial, ‘the presumption may yield to compelling evidence in the record that
no harm actually resulted.’” United States v. Timmerman, 28 M.J. 531, 536
(A.F.C.M.R. 1989) (quoting United States v. Boland, 42 C.M.R. 275, 278
(C.M.A. 1970)). “In this regard we look to the record as a whole to determine
the intent of the trial court with respect to announcement of the findings.” Id.
(citations omitted).
   3. Analysis
   Appellant asserts we must set aside the findings of guilty as to Charge II
and Specification 3 thereunder and dismiss the charge and specification be-
cause the announced findings purport to both acquit and convict Appellant of
them. Appellant correctly notes that the military judge did not have the court
president re-announce the findings, and that neither the findings worksheet


                                       19
                    United States v. Thomas, No. ACM 39315


itself nor the military judge’s oral clarification on the record constitutes an-
nouncement of the findings. See Rule for Courts-Martial (R.C.M.) 921(d). Nev-
ertheless, we are not persuaded.
    Although the better practice would have been for the military judge to have
the president re-announce the clarified findings, the fact that he did not do so
does not necessarily require the charge and specification be set aside and dis-
missed. We find the record compellingly demonstrates the members always
intended to find Appellant guilty of Charge II and Specification 3 thereunder.
See Timmerman, 28 M.J. at 536. The facial incongruity of the announced find-
ing was evidently caused by the members’ initial understanding that the
charge sheet required them to make a finding and mark whether or not Appel-
lant was “Guilty” of “all the Specifications of Charge II.” (Emphasis added). If
they found—and marked—that he was “Not Guilty” of “all” specifications of
Charge II, they were then to record findings as to each of the individual speci-
fications and to the charge. Understood this way, the announced findings are
not inconsistent because the members did not find Appellant guilty of all spec-
ifications under Charge II, only of Specification 3 and of the Charge itself, as
announced. The military judge’s colloquy with the president, the president’s
additional annotation to the worksheet, and trial defense counsel’s acknowl-
edgment of understanding and failure to object make the members’ finding and
all parties’ understanding of it quite clear. Therefore, Appellant suffered no
prejudice from the fact that the members did not re-announce the findings.7
    Appellant’s reliance on a line of cases addressing ambiguous findings re-
sulting from the exception of the term “divers” from a specification is inapt. See
United States v. Trew, 68 M.J. 364, 367 (C.A.A.F. 2010); United States v. Wil-
son, 67 M.J. 423, 428 (C.A.A.F. 2009); United States v. Augspurger, 61 M.J.
189, 192 (C.A.A.F. 2005); United States v. Walters, 58 M.J. 391, 396 (C.A.A.F.
2003). In those cases, the fatal ambiguity resulted from the apparent finding
that the accused was not guilty of one or more instances of misconduct implicit
in the exception of the “divers occasions” language, without clarification in the
findings as to which instance the court-martial found the accused guilty. Ap-
pellant’s case presents no such ambiguity and no cause to dismiss Charge II
and its Specification 3.



7 In Timmerman, the court affirmed findings of guilt despite the failure of the court
members to announce any findings at all with respect to three specifications under one
of the charges because, “based upon the entire record . . . the appellant has suffered no
prejudice from the irregular form in which the jury’s [sic] verdict was announced.” 28
M.J. at 537; see also United States v. Gates, No. ACM S32504, 2018 CCA LEXIS 490,
at *6 (A.F. Ct. Crim. App. 12 Oct. 2018) (per curiam) (relying on Timmerman), rev.
denied, 2019 CAAF LEXIS 71 (C.A.A.F. 2019).


                                           20
                   United States v. Thomas, No. ACM 39315


C. Post-Trial Delay
   1. Additional Background
   Appellant’s trial concluded on 20 March 2017. The convening authority
took action on the findings and sentence 139 days later on 6 August 2017. The
record was docketed with this court on 29 August 2017.
    On 12 September 2018, this court returned the record to The Judge Advo-
cate General for remand to the convening authority for correction of the record
pursuant to R.C.M. 1104(d), specifically to address six appellate exhibits that
were missing from the original record of trial. The record was to be returned to
the court no later than 12 November 2018. On 15 November 2018, this court
granted in part the Government’s out-of-time motion for an extension of time
until 30 November 2018 to comply with the court’s prior order. On 29 Novem-
ber 2018, the Government moved to attach the certificate of correction and the
missing appellate exhibits; this court granted the motion on 10 December 2018.
Appellant filed his assignments of error on 13 December 2018, the Government
filed its answer on 15 January 2019, and Appellant filed his reply to the Gov-
ernment’s answer on 22 January 2019.
   2. Law
    In United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006), the CAAF
established a presumption of facially unreasonable delay when the convening
authority does not take action within 120 days of trial, when a record of trial
is not docketed with the service court within 30 days of the convening author-
ity’s action, and when this court does not render a decision within 18 months
of the case being docketed. Where there is such a delay, we examine 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) the appellant’s assertion of his right
to a timely review; and (4) prejudice to the appellant. Moreno, 63 M.J. at 135
(citations omitted). “No single factor is required for finding a due process vio-
lation and the absence of a given factor will not prevent such a finding.” Id. at
136 (citing Barker, 407 U.S. at 533). However, where an appellant has not
shown prejudice from the delay, there is no due process violation unless the
delay is so egregious as to “adversely affect the public’s perception of the fair-
ness and integrity of the military justice system.” United States v. Toohey, 63
M.J. 353, 362 (C.A.A.F. 2006).
   3. Analysis
    The 139 days that elapsed between the conclusion of Appellant’s trial and
the convening authority’s action exceeded the 120-day standard for a presump-
tively unreasonable delay the CAAF established in Moreno. Therefore, we con-
sider the four Barker factors, beginning with the length of the delay itself. In
this case, the delay between sentence and action exceeded the Moreno standard

                                        21
                   United States v. Thomas, No. ACM 39315


by 19 days. This is sufficient to trigger a full due process analysis and weighs
in Appellant’s favor, but only modestly.
    As to the second factor, we find in the record adequate reasons for the delay.
This was a lengthy trial, spanning 11 days of in-court proceedings amounting
to nearly 1,700 transcript pages, with well over 100 exhibits consisting of many
hundreds of pages. As a result, the court reporter did not receive the final au-
thentication from the military judge until 26 June 2017. The staff judge advo-
cate signed her recommendation to the convening authority the same day.
Trial defense counsel requested and was granted a 10-day delay until 23 July
2017 to submit clemency matters to the convening authority. The Defense sub-
mitted Appellant’s clemency request on 22 July 2017. The clemency submis-
sion was extensive and robust, consisting of 175 pages and asserting seven dif-
ferent legal errors. Under these circumstances, we find the reasons for the de-
lay weigh substantially in the Government’s favor.
    As for the third factor, we do not find a specific demand for timely post-trial
review before action. On the contrary, trial defense counsel’s request for an
extension in which to submit clemency matters specifically discounted the Gov-
ernment’s concern with meeting the 120-day Moreno standard; the Defense as-
serted the delay would benefit Appellant rather than prejudice him. Accord-
ingly, we find this factor favors the Government.
    Finally, with regard to prejudice, in Moreno the CAAF identified three
types of cognizable prejudice arising from post-trial processing delay: (1) op-
pressive incarceration; (2) anxiety and concern; and (3) impairment of the ap-
pellant’s ability to present a defense at a rehearing. 63 M.J. at 138–39 (cita-
tions omitted). We do not find that Appellant has demonstrated that, as a re-
sult of the sentence-to-action delay, he suffered particularized anxiety or con-
cern that is distinguishable from the normal anxiety experienced by prisoners
awaiting an appellate decision. See id. at 140. Nor do we find this delay has
impaired his ability to prepare a defense at a rehearing. See id. However, given
our conclusion that Appellant’s conviction for sexual assault and his sentence
must be set aside, we do find Appellant suffered at least some marginal degree
of prejudice from confinement, given that this sentence might have been set
aside sooner without the delay. See id. at 140–41. Nevertheless, considering all
the factors together we do not find a violation of Appellant’s due process right
to timely post-trial processing and appeal arising from the delay between sen-
tencing and action.
    However, Appellant focuses his post-trial due process claim not on the de-
lay between sentencing and action, but on the delay at our court following the
docketing of the record on 29 August 2017. Appellant points to delays in filing
his assignments of error occasioned by the mobilization of his appellate defense
counsel, by the Government’s failure to include several appellate exhibits in

                                        22
                   United States v. Thomas, No. ACM 39315


the original record of trial, and by the Government’s delay in accomplishing
the correction of the record directed by this court. Yet, as the Government
notes, the 18-month standard for facially unreasonable delay between docket-
ing at this court and issuance of a decision has not been exceeded. See id. at
142. Although we acknowledge the CAAF in Moreno “did not purport to set
forth the exclusive criteria for facially unreasonable delay,” United States v.
Swanson, No. ACM 38827, 2016 CCA LEXIS 648, at *21 (A.F. Ct. Crim. App.
27 Oct. 2016), under the circumstances in this case—particularly the size of
the record, complexity of the issues, absence of a government request for an
extension of time to file an answer brief, and relatively swift issuance of this
opinion within 45 days of the filing of the Government’s answer—we do not
find the post-docketing delay violated Appellant’s due process right to timely
appellate review.
    Finally, recognizing our authority under Article 66, UCMJ, we have also
considered whether relief for excessive post-trial delay at any point is appro-
priate in this case even in the absence of a due process violation. See United
States v. Tardif, 57 M.J. 219, 225 (C.A.A.F. 2002). After considering the factors
enumerated in 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), we conclude it is not.

                                III. CONCLUSION
    The finding of guilty as to Charge II, the finding of guilty as to Specification
3 of Charge II, and the sentence are SET ASIDE. A rehearing is authorized.
The case is returned to The Judge Advocate General for further processing
consistent with this opinion.



LEWIS, Judge (concurring in the result):
    I concur with my esteemed colleagues that the military judge abused his
discretion by failing to admit evidence under Mil. R. Evid. 412(b)(1)(B) on the
issue of consent. I write separately as I would find less evidence admissible
under Mil. R. Evid. 412(b)(1)(B)’s exception and would also rely on Mil. R. Evid.
412(b)(1)(C)’s exception to admit evidence required by the Constitution as
grounds for admissibility of some of the actual text messages.
    The majority generally found that the evidence that TSgt MP exchanged
sexually charged messages with Appellant for approximately three months,
discussed engaging in sexual intercourse with him, and masturbated with him
(albeit by remote means) had some tendency to make it more probable that the
two carried out their plan to engage in consensual sexual intercourse. Next,



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                  United States v. Thomas, No. ACM 39315


the majority found, under Mil. R. Evid. 412(c)(3), that TSgt MP’s privacy inter-
ests did not outweigh the probative value of this evidence. Finally, the majority
found the countervailing interests articulated in Mil. R. Evid. 403 would not
have substantially outweighed the probative value of the evidence. The major-
ity did not rely on Mil. R. Evid. 412(b)(1)(C)’s constitutionally required excep-
tion.
    Addressing only Mil. R. Evid. 412(b)(1)(B) at this point, I find the vast ma-
jority of the sexually charged text messages between Appellant and TSgt MP
have marginal probative value, at best, on the issue of consent. The messages
had high probative value for what may have been planned if Appellant visited
TSgt MP in the fall or winter of 2014 at her prior duty station. By the time 28
August 2015 arrived, these messages had much lower probative value on the
issue of consent, especially considering the five-month gap in time from 11
March 2015 to 22 August 2015 when no text messages were exchanged be-
tween Appellant and TSgt MP, perhaps due to Appellant’s deployment. Appel-
lant’s first text message to TSgt MP on 22 August 2015 read, “What’s been up
stranger? Remember me?” Even if the majority is correct that the military
judge abused his discretion on his relevance determination under Mil. R. Evid.
401 and 402, I would find the vast majority of the sexually charged text mes-
sages to be properly excluded under the balancing tests of Mil. R. Evid.
412(c)(3) and 403.
    Similarly, I find the evidence that Appellant and TSgt MP mutually mas-
turbated via FaceTime on one occasion at least eight to ten months prior to
meeting in person to have marginal probative value on the issue of consent.
Under Mil. R. Evid. 412(b)(1)(B)’s exception and assuming arguendo that the
marginal probative value would not be outweighed by TSgt MP’s privacy inter-
ests, I would exclude this evidence under Mil. R. Evid. 403. Even giving no
deference to the military judge’s ruling—as he did not articulate his balancing
test—I would find the evidence properly excluded as its marginal probative
value would be substantially outweighed by the potential for confusing the is-
sues and misleading the members, particularly on the issues of consent and
the capacity to consent.
    I find one specific subject in the text messages, discussed in detail below,
to have a higher probative value on the issue of consent even after the passage
of time described above. To me, the probative value of this subject is less im-
pacted by the passage of time given the overlap and intersection with the find-
ings testimony by TSgt MP about the night of 28 August 2015 and morning of
29 August 2015. Under Mil R. Evid. 412(b)(1)(B), I would find this one subject
required admission on the issue of consent even after conducting the balancing
tests under Mil. R. Evid. 412(c)(3) and 403. I would find the military judge’s



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                  United States v. Thomas, No. ACM 39315


ruling excluding the actual text messages in this area materially prejudiced
Appellant.
    The specific subject involves text messages where Appellant and TSgt MP
discussed sexual intercourse during a woman’s menstrual cycle. During open-
ing statement, the Prosecution noted that TSgt MP will “tell you how she felt
relieved [by the start of her period] because it was an easy way to let the ac-
cused down and she’ll tell you that it was a great excuse not to have sex because
she did not want to have sex.” TSgt MP’s testimony made clear that she was
“relieved” to begin her menstrual cycle because it meant she “was not going to
have sex with [her] period just starting.”
    The text messages that were not admitted would have provided the mem-
bers a reliable source of information showing that TSgt MP and Appellant had
three separate exchanges about this specific topic during October and Novem-
ber 2014. One reasonable interpretation of these text messages is that
TSgt MP would be open to consenting to sexual intercourse with Appellant
during her period. While that was not the only interpretation possible, the mil-
itary judge’s ruling precluded the Defense from presenting evidence on this
interpretation.
    The military judge certainly admitted evidence that TSgt MP actually con-
sented to sexual intercourse with Appellant the next morning while knowing
she was menstruating. However, TSgt MP testified she consented to sexual
intercourse the next morning for a specific reason: “to get my power back.” The
text messages from October and November 2014 would have provided im-
portant context to the members for the timeframe before TSgt MP believed
Appellant had sexual intercourse with her without her consent. I would find
them admissible under Mil. R. Evid. 412(b)(1)(B)’s exception on the issue of
consent and the military judge’s conclusion to the contrary to be incorrect.
    To be clear, the military judge’s written ruling specifically found that the
text messages did not express a “general willingness” by TSgt MP to engage in
sex while “on one’s period” and concluded that this evidence “says nothing at
all about consent on a particular occasion.” However, the military judge’s rul-
ing also left the Defense no opportunity to challenge TSgt MP’s testimony that
she was relieved because she was not going to have sex once her period started.
This powerful testimony could have certainly impacted the findings in this case
and led a reasonable member to conclude the evidence showed that TSgt MP
would never have consented to sexual intercourse with Appellant during her
period, except under the highly unusual circumstances of their sexual inter-
course the next morning. Additionally, the text messages themselves arguably
painted a different picture of TSgt MP’s credibility and their exclusion denied
the Defense an opportunity for effective cross-examination in this area. See



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                  United States v. Thomas, No. ACM 39315


Delaware v. Van Arsdall, 475 U.S. 673, 679–680 (1986); United States v. Gad-
dis,70 M.J. 248, 256 (C.A.A.F. 2011). I would further find inquiry into these
text messages admissible under the constitutionally required exception of Mil.
R. Evid. 412(b)(1)(C) as relevant, material, and vital to the Defense and the
exclusion of this inquiry to be beyond the scope of a trial judge’s wide latitude
to impose reasonable limits on cross-examination. See id.
    The majority also would find text messages referencing TSgt MP paying
Appellant a “debt” admissible to show that the term “debt” was actually a ref-
erence to sex. I agree with the majority’s ultimate conclusion but would do so
only under Mil. R. Evid. 412(b)(1)(C). On the whole, TSgt MP’s testimony dur-
ing cross-examination that the use of the word “debt” was not a reference to
sex “because that sounds like prostitution” had the potential to mislead the
members because the content of the text messages made clear Appellant and
TSgt MP used the term as a sexual reference. As a result, I would find some of
the messages to be relevant, material, and vital to the Defense after TSgt MP
essentially opened the door to their admissibility with her testimony denying
“debt” was a sexual reference. We have noted before that “trials are fluid” and
“evidence that may not be constitutionally required at the outset of the trial
because it fails the balancing test may become constitutionally required as
other evidence in introduced.” United States v. Sousa, 72 M.J. 643, 650 (A.F.
Ct. Crim. App. 2013). In this case, I believe a reasonable panel would have
received a significantly different impression of TSgt MP’s credibility if the De-
fense was permitted to pursue this additional line of cross-examination with
the content of some of the text messages involving the “debt” reference. See id.
   On the remaining issues, I concur with the majority’s resolution of the pur-
ported ambiguity with the announcement of findings and the assessment of
post-trial delay.


                     FOR THE COURT



                     CAROL K. JOYCE
                     Clerk of the Court




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