This opinion is subject to administrative correction before final disposition.

Before 

KISOR, KIRKBY, and DALY

Appellate Military Judges

_________________________

UNITED STATES

Appellee

v.

Christopher R. JOHNSON

Machinist’s Mate Petty Officer Third Class (E-4), U.S. Navy

Appellant

No. 202200125

_________________________

Decided: 7 November 2023

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judges: 

Ryan J. Stormer (arraignment)

Andrea K. Lockhart (motions)1

Chad C. Temple (motions and trial)

Sentence adjudged 15 April 2022 by a general court-martial convened 

at Naval Base San Diego, California, consisting of officer and enlisted 

members for findings and a military judge alone for sentencing. Sentence in the Entry of Judgment: reduction to E-1, confinement for eighteen months, and a dishonorable discharge.

 

1 Judge Lockhart heard a number of substantive motions on 17 February 2022 and 

issued rulings, which were later vacated by Judge Temple for reasons that were explained in United States v. Painter, 82 M.J. 806 (N-M. Ct. Crim. App. 2022).
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2

For Appellant:

LtCol Matthew E. Neely, USMC

For Appellee: 

Lieutenant Commander Paul S. LaPlante (argued)

Lieutenant Colonel James A. Burkart, USMC (on brief)

Colonel Joseph M. Jennings, USMC (on brief)

Senior Judge KISOR delivered the opinion of the Court, in which Judge 

DALY joined. Judge Kirkby filed a separate opinion concurring in the 

judgment.

_________________________

This opinion does not serve as binding precedent, but 

may be cited as persuasive authority under 

NMCCA Rule of Appellate Procedure 30.2.

_________________________

KISOR, Senior Judge:

A general court-martial composed of members with enlisted representation 

convicted Appellant of two specifications of sexual assault in violation of Article 

120, UCMJ.2 Appellant elected to be sentenced by the military judge.3 As the 

Specifications had been charged under alternative theories of criminal liability, after the entry of findings, the military judge conditionally dismissed Specification 2, to become effective upon completion of final appellate review.4 For 

Specification 1, the military judge sentenced Appellant to be reduced to 

paygrade E-1, to be confined for eighteen months, and to be discharged with a 

dishonorable discharge.5

 

2 10 U.S.C. § 920; R. at 673.

3 R. at 676.

4 R. at 675. Specification 1 alleged that Appellant penetrated the victim’s vulva 

with his finger when “he knew or reasonably should have known she was asleep” while 

Specification 2 alleged that the same act was done “without consent.” Charge Sheet.

5 R. at 710.
United States v. Johnson, NMCCA No. 202200125

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3

Appellant raises five assignments of error before this Court:

(1) Did the convening authority violate Appellant’s Rule for 

Courts-Martial [R.C.M.] 707 speedy trial right by sua 

sponte excluding post hoc delay without finding good 

cause for the delay when the convening authority’s failure to convene a court-martial properly caused the delay? 

(2) Did the military judge abuse his discretion in excluding 

evidence that no more than a few months before the alleged offense, non-sexual physical contact triggered the 

complaining witness’s memory of past sexual abuse when 

Appellant said he touched the complaining witness but 

never penetrated her vulva? 

(3) Did the trial counsel commit prosecutorial misconduct 

by arguing in closing and rebuttal that no evidence 

demonstrating the complaining witness’s past sexual 

trauma adversely impacted her ability to perceive and recall events accurately exists, and defense counsel’s attacks on her credibility were consequently just “speculation”?

(4) Is the evidence factually sufficient to support Appellant’s 

sexual assault conviction?

(5) Did the military judge err in denying the Defense’s motion for a unanimous verdict?

We find no prejudicial error and affirm.

I. BACKGROUND

The general factual circumstances in this case (with a notable exception) 

are largely undisputed. On the evening of 5 January 2019, two Sailors (Petty 

Officer Golf and Mr. Mike), and two women (Ms. C.G. and Ms. Alpha) went out 

for the evening in Honolulu, Hawaii.6 They ended up at “Bar 35” where they 

 

6 R. at 442-43. All names in this opinion, other than those of Appellant, the judges, 

and counsel, are pseudonyms. Ms. Alpha, Mr. Delta, and Mr. Mike were all United 

States Navy Sailors in January 2019 but were civilians by the time of trial in April 

2022, and are not referred to here by military titles.
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4

met up with two other people, Appellant and Mr. Delta.7 Mr. Delta and Ms. 

Alpha had previously been stationed together, but Appellant did not know either Ms. C.G. or Ms. Alpha prior to that evening.8 Appellant spent the evening 

drinking and flirting with Ms. Alpha at Bar 35 and then at another bar.9 Appellant and Ms. Alpha danced together and at one point kissed on the dance 

floor.10 At the end of the evening, Petty Officer Golf, who had not been drinking, 

drove the group back to Ms. C.G.’s house and then he took an Uber home as he 

had duty the next day.11

At Ms. C.G.’s house, Appellant followed Ms. Alpha up to the guest bedroom 

in an unsuccessful attempt to convince her to engage in sexual relations.12 Appellant was heavily intoxicated, but Ms. Alpha was not. Appellant’s brief summarizes the aftermath of that interaction as follows:

After his drunken advances went nowhere with Ms. Alpha, Appellant sat down on the floor, fell asleep, and shortly after that 

began to vomit. Ms. Alpha led Appellant to the bathroom to finish vomiting and clean up. As Appellant cleaned up his vomit, 

he became further nauseated and vomited more. He then returned to Ms. Alpha’s room to finish cleaning up the vomit. After 

he finished cleaning, Ms. Alpha sent him out of the room with 

the odorous trash and directions to “go downstairs.”13

Rather than go downstairs, Appellant then wandered into the master bedroom where Ms. C.G. and her boyfriend, Mr. Mike, were sleeping. Ms. C.G. 

testified that she woke up with Appellant’s fingers in her vagina (which she 

initially thought was Mr. Mike waking her up to have sex).14 She exclaimed 

“what the fuck” and woke up Mr. Mike, telling him that someone else was in 

the room.15 Appellant then went to the foot of the bed and crouched down and 

 

7 R. at 445.

8 R. at 451-52, 497. 

9 R. at 447.

10 R. at 446-47, 466.

11 R. at 444-45.

12 R. at 456.

13 Appellant’s Br. at 13, citing to various pages in the Record. 

14 R. at 492.

15 R. at 492-93.
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5

attempted to hide.16 Mr. Mike stood up, and Appellant ran out of the room.17

As it was dark, Mr. Mike did not recognize Appellant.18 After coming downstairs, Mr. Mike directed Appellant and Mr. Delta (who was asleep on a couch)

to leave the house, which they did.19

Some months later, Appellant was interviewed twice by the Naval Criminal 

Investigative Service [NCIS], on 30 October 2019 and 10 March 2020.20 Those 

interviews were video recorded and admitted into evidence at trial.21 After the 

second interview, Appellant wrote a letter of apology to Ms. C.G., which was

delivered to Ms. C.G. by her Victims’ Legal Counsel and later admitted into 

evidence at trial.22

The Charge was preferred against Appellant on 24 June 2021. After a short 

(11 day) period of defense-requested delay, an Article 32 hearing was held on 

11 August 2021. Commander, Navy Region Southwest, referred the charge to 

a general court-martial convened by General Court-Martial Convening Order 

[GCMCO] 01-21. Appellant was arraigned on 15 October 2021, which was on 

day 99 of the then-operative 120-day R.C.M. 707 speedy trial clock. Appellant 

was never in pretrial confinement.

However, on 21 December 2021, the military judge ruled, in a different case 

also referred to GCMCO 01-21, that that general court-martial was improperly 

convened because the convening authority detailed the assistant staff judge 

advocate as a member.23 Likewise, on 31 January 2022, the military judge also 

found Appellant’s general court-martial to be improperly convened for the 

same reason, and vacated the referral and removed the case from the court’s 

docket, but did not dismiss the underlying preferred charge and its specifications. 

Ultimately, the charge in this case was re-referred to a general court-martial convened by GCMCO 01-22. As arraignment occurred on 11 February 

 

16 R. at 492.

17 R. at 493, 512. 

18 R. at 512.

19 R. at 523-24.

20 R. at 550.

21 R. at 534, 538; Pros. Ex. 3, 4.

22 R. at 496, 545; Pros. Ex. 6.

23 United States v. Jaramillo, findings of fact and conclusions of law.
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6

2022, 233 days after preferral, the Defense moved to dismiss the Charge for a 

speedy trial violation under both R.C.M. 707 and the Sixth Amendment to the 

United States Constitution. The military judge denied the motion.24 Central to 

the military judge’s analysis was that the convening authority properly excluded 108 days from the speedy trial clock (15 October 2021 to 31 January 

2022: the time between the initial arraignment on the defective convening order and the military judge’s vacating the referral).

Prior to trial, Appellant also filed a motion under Mil. R. Evid. 412 to be 

allowed to present testimony: (1) that Ms. C.G. had been sexually assaulted in 

the past; and (2) that on one instance when Mr. Mike was lying down in a bed 

with her, the particular (non-sexual) position their bodies were in caused her 

to “kind of freak[ ] out” as it restricted her movement.25 The military judge 

granted the motion in part and denied it in part, allowing the Defense to ask 

Ms. C.G. if she was sexually assaulted in the past (to provide the foundation 

for the Defense expert to opine as to her memory and perception).26 The military judge, however, excluded the evidence of the interaction between Mr. Mike 

and Ms. C.G. in bed that caused her to become upset as not constitutionally 

required under Mil. R. Evid. 412 and also inadmissible under Mil. R. Evid. 

403.27

At trial, the Defense called Major Charlie, who was recognized as an expert 

in the field of forensic and clinical psychology.28 He testified about memory 

formation generally, and the effects of both alcohol and sexual trauma on 

memory and perception.29 He conceded on cross-examination that he had no 

evidence that any past trauma that Ms. C.G. experienced was similar to what 

she testified about at Appellant’s court-martial.30

 

24 App. Ex. LXXIII.

25 App. Ex. XLIII at 2.

26 App. Ex. LXXII at 6.

27 App. Ex. LXXII at 7-8.

28 R. at 585.

29 R. at 586-92.

30 R. at 601.
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7 

Finally, Appellant filed a pretrial motion requesting that—notwithstanding the statutory requirements of Article 52, UCMJ—the military judge instruct the members that in order to convict Appellant they must reach a unanimous verdict.31 The Military Judge denied the motion.32

II. DISCUSSION

A. Exclusion of 108 days by the convening authority was not improper 

under Rule for Courts-Martial 707. 

Appellant contends, essentially, in his first assignment of error, that this 

Court should dismiss the charges because the convening authority improperly 

excluded 108 days from the R.C.M. 707 speedy trial clock prior to the second 

arraignment (the one under the second convening order.)33 Appellant specifically does not assert a Sixth Amendment violation.34

1. Standards of review and applicable law.

This Court generally reviews speedy trial claims de novo.35 However, this 

Court reviews whether the military judge properly granted excludable delay 

for an abuse of discretion.36 Under R.C.M. 707, an accused must “be brought to 

trial within 120 days after . . . [p]referral of charges.”37 For purposes of Rule

707, an “accused is brought to trial . . . at the time of arraignment.”38 Ordinarily, when an accused is not under pretrial restraint and charges are dismissed, 

a new 120-day time period begins on the date of re-preferral.39 “If charges are 

 

31 App. Ex. LII.

32 R. at 142.

33 Appellant’s Br. at 21-37.

34 Appellant’s Reply Br. at 10.

35 See United States v. Guyton, 82 M.J. 146 (C.A.A.F. 2022).

36 See id. at 151.

37 R.C.M. 707(a)(1).

38 R.C.M. 707(b)(1).

39 R.C.M. 707(b)(3)(A)(ii). 
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8 

merely withdrawn and not subsequently dismissed, however, the R.C.M.

707 ‘speedy-trial clock continues to run.’ ”40 

The Court of Appeals for the Armed forces has stated that applying the 

speedy trial provisions of R.C.M. 707(c) does not merely consist of calculating 

the passage of calendar days. The rule explicitly states that certain days “shall 

not count for [the] purpose of computing time.”41 For example, R.C.M. 707(c)(1) 

states that prior to referral, “[a]ll ... pretrial delays approved by a military 

judge or the convening authority shall be ... excluded” from the 120-day clock 

imposed by R.C.M. 707(a)(1). (After referral, only the military judge has the 

authority to approve pretrial days that are excluded from the 120-day 

clock. R.C.M. 707(c)(1)). The R.C.M. “does not preclude after-the-fact approval 

of a delay by” the military judge.42 

The non-binding discussion to R.C.M. 707 states that “[t]he decision to 

grant or deny a reasonable delay is a matter within the sole discretion of the 

convening authority or a military judge. This decision should be based on the 

facts and circumstances then and there existing.”43 However, there must be 

good cause for the delay and the length of time requested must be reasonable

based on the facts and circumstances of each case.44 

Regarding a remedy, a dismissal for a R.C.M. 707 violation may be with or 

without prejudice. In selecting a remedy for a non-constitutional claim such as 

this, the Court considers, among other factors, (1) the seriousness of the offense; (2) the facts and circumstances of the case that led to the dismissal for a 

Rule 707 violation; (3) the impact of pre-prosecution on the administration of 

justice; and (4) prejudice to the accused.45 

 

40 United States v. Leahr, 73 M.J. 364, 367 (C.A.A.F. 2014) (quoting United States

v. Britton, 26 M.J. 24, 26 (C.M.A. 1988)).

41 R.C.M. 707(b)(1).

42 United States v. Thompson, 46 M.J. 472, 475 (C.A.A.F. 1997).

43 R.C.M. 707(c)(1) Discussion.

44 Thompson, 46 M.J. at 475 (stating the delay must “meet[ ] good-cause and reasonable-in-length standards”).

45 R.C.M. 707(d)(1).
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9

2. The timeline in this case.

Timeline Date R.C.M. 707 Clock

Charges Preferred: 24 June 2021 0 Days

Defense Requested Excludable Delay:31 July 2021 – 11 

August 2021 (11 

Days)

26 Days

Article 32 Hearing: 11 August 2021 37 Days

Charges and Specifications Referred to GCMCO 01-21:1 October 2021 88 Days

Defense Requested Excludable Delay:12 October 2021 –

15 October 2021 (3 

Days)

99 Days

First Arraignment: 15 October 2021 Excluded

Ruling Vacating Referral to 

GCMCO 01-21 ICO U.S. v. Jaramillo:

21 December 2021 Excluded

Ruling Dismissing Referral to 

GCMCO 01-21 in this Case:

31 January 2022 Excluded

Convening Authority Grants Excludable Delay from 15 October 

2021 – 31 January 2022:

9 February 2022 109 Days

Charge and Specifications Referred 

to GCMCO 01-22:

9 February 2022 109 Days

Arraignment: 11 February 2022 111 Days

3. Analysis.

The central issue here is whether the convening authority improperly excluded the time between 15 October 2021 and 31 January 2022 (108 days) from 

the R.C.M. 707 speedy trial clock. If this time were not excluded it would result 

in a lapse of well over 120 days between preferral and arraignment. The Defense contends that the convening authority did not have good cause for doing 
United States v. Johnson, NMCCA No. 202200125

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so because that period of “delay was caused by, at best, stunning negligence” 

in the initial referral.46

The military judge examined this issue at trial. He found that “[t]he arraignment in Johnson I tolled the speedy trial clock and it did not begin to run 

again until the military judge found an improper referral.”47 After the referral 

was vacated, the convening authority then regained the ability to exclude delay. The military judge explained,

Despite this excludable delay occurring post hoc, the Court finds 

no improper reason for doing so by the Convening Authority. 

There was no prohibition on the convening authority from continuing the ongoing litigation on the issue of the propriety of 

GCMCO #01-21 as the matter was unresolved in Johnson I. 

Even though the matter was resolved in favor of the accused in 

a separate court-martial, the government is not enjoined from 

raising and litigating the matter again in order to seek a more 

favorable outcome. Finally, the Court concludes there is no credible evidence of bad faith on the part of the government.48

Central to the Defense’s reasoning here, is that once the military judge 

found GCMCO #01-21 to be fatally defective, the convening authority was 

somehow enjoined from proceeding in other cases referred to that convening 

order. We disagree. Nothing in the Uniform Code of Military Justice or the

Rules for Courts-Martial permits a military judge detailed to preside over an 

individual case to strike down referrals collectively, or grant any other type of 

de facto class-wide relief in other unrelated cases before the court. The fact 

that an identical ruling was foreseeable on this issue does not deprive the Government of the ability to re-litigate the issue, because a military judge’s ruling 

on a particular issue is not binding in other cases, even in the same circuit. 

We find that the convening authority thus had good cause to exclude the 

time between 15 October 2021 to 31 January 2022. Further, the military judge 

did not abuse his discretion in agreeing with that action. We find that the military judge also properly tolled the R.C.M. 707 clock for the several relatively 

short periods of delay requested by the Defense totaling 14 days. Thus, we hold 

that there was no speedy trial violation because, at the time Appellant was re-

 

46 Appellant’s Br. at 27.

47 App. Ex. LXXIII at 6.

48 App. Ex. LXXIII at 6-7.
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arraigned on 11 February 2022, it was on day 111 of the operative speedy trial 

clock, within the time permitted by R.C.M. 707. 

B. The military judge did not abuse his discretion in excluding evidence that, on a prior occasion, non-sexual physical contact with 

Mr. Mike triggered Ms. C.G.’s memory of past sexual abuse.

Appellant contends that the military judge abused his discretion by excluding evidence that on one occasion Ms. C.G., when Mr. Mike touched her in bed,

she recalled a past sexual assault, and therefore could have had memory or 

perception problems when Appellant touched her.49 Appellant further contends that this ruling denied him the “fundamental right to challenge and discredit her testimony.”50

1. Standard of review.

We review a military judge’s decision to admit or exclude evidence for an 

abuse of discretion.51 Evidence is relevant if it has any tendency to make a fact 

of consequence in determining the action more or less probable than it would 

be without the evidence.52 Materiality “is a multi-factored test looking at the 

importance of the issue for which the evidence was offered in relation to the 

other issues in this case; the extent to which the issue is in dispute; and the 

nature of the other evidence in the case pertaining to th[at] issue.”53

Evidence offered to prove an alleged victim engaged in other sexual behavior is, with limited exceptions, generally not admissible at a trial involving a 

sexual offense.54 One of the rule’s three exceptions is relevant here, that is “evidence the exclusion of which would violate the accused’s constitutional 

rights.”55 “The constitutionally required exception encompasses an accused’s 

Sixth Amendment right to confront and cross-examine the witnesses against 

 

49 Appellant’s Br. at 39-40.

50 Appellant’s Br. at 39.

51 See United States v. McElhany, 54 M.J. 120, 129 (C.A.A.F. 2000).

52 Mil. R. Evid. 401.

53 Ellerbrock, 70 M.J. at 318 (citations and internal quotation marks omitted).

54 Mil. R. Evid. 412(a)(1). “Sexual behavior” includes “any sexual behavior not encompassed by the alleged offense.” Mil. R. Evid. 412(d).

55 Mil. R. Evid. 412(b)(3).
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him, which includes the right ‘to impeach, i.e., discredit the witness.’”56 Evidence is admissible under this exception if it is relevant, material, and favorable to the defense, no matter how embarrassing it may be to the alleged victim.57

Any evidence introduced under the exceptions to Mil. R. Evid. 412 must 

also pass the Mil. R. Evid. 403 balancing test. Further, military judges receive 

wide discretion in conducting balancing under Mil. R. Evid. 403 where they 

reasonably describe the nature of the evidence and properly state the legal 

standard for making an admissibility determination.58 To pass the Mil. R. 

Evid. 403 balancing test, the evidence’s probative value must not be substantially outweighed by such dangers as “harassment, prejudice, confusion of the 

issues, the witness’ safety, or interrogation that is repetitive or only marginally 

relevant.”59

2. The ruling in this case.

The military judge allowed the defense to present evidence that Ms. C.G. 

had prior sexual trauma. This allowed the Defense to present its theory that 

Ms. C.G.’s perception and memory issues may have caused her to misperceive 

Appellant’s touching her as a sexual assault.60

However, the military judge excluded the evidence that Ms. C.G. had a 

strong reaction to her interaction with Mr. Mike in the bed. First, the military 

judge concluded that the evidence of the interaction between Mr. Mike and Ms. 

C.G. was not constitutionally required under Mil. R. Evid. 412; and second, he 

concluded that the proffered evidence was inadmissible under Mil. R. Evid. 

403.61 The military judge explained the nature of the evidence and his reasoning in significant detail, finding that the circumstances of that interaction were 

not in any way relevant to the charge offenses.62 The military judge found that 

 

56 Ellerbrock, 70 M.J. at 318 (quoting Olden v. Kentucky, 488 U.S. 227, 231 (1988)) 

(additional citations omitted).

57 United States v. Banker, 60 M.J. 216, 222-23 (2004), abrogated by United States 

v. Gaddis, 70 M.J. 248, 256 (C.A.A.F. 2011).

58 See United States v. St. Jean, 83 M.J. 109 (C.A.A.F. 2023).

59 Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); see United States v. St. Jean,

83 M.J. 109 (C.A.A.F. 2023).

60 App. Ex. LXXII at 6; R. at 586.

61 App. Ex. LXXII at 7.

62 App. Ex. LXXII at 7.
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there was no evidence of Appellant restricting the movement of Ms. C.G.’s legs 

nor any other similarity between the prior interaction with Mr. Mike and the 

incident of Appellant touching her.63 We agree that the two events are markedly dissimilar. Thus, the military judge found that it was not constitutionally 

required under Mil R. Evid 412 and was also irrelevant.64 Then after conducting the proper balancing test under Mil. R. Evid. 403, the military judge also 

concluded, “the probative value of the evidence is substantially outweighed by 

the danger of confusion of the issues, misleading the members, and considerations of waste of time.”65

We find that the military judge did not abuse his discretion in excluding 

this evidence. We conclude that Ms. C.G.’s reaction to being touched in a nonsexual way while in bed does not constitute “other sexual behavior” within the 

meaning of Mil. R. Evid. 412. Nonetheless, it was unquestionably irrelevant 

and not probative of anything, and therefore inadmissible under Rules of Evidence 402(b) and 403. Further, it was not constitutionally required. The military judge conducted the proper balancing test under Mil. R. Evid. 403, and he 

sufficiently explained his analysis and reasoning. We find no abuse of discretion in excluding this evidence.

C. Trial counsel’s argument on findings was not improper.

Appellant next argues that trial counsel committed prosecutorial misconduct when he argued “nothing has been hidden from you” and that “you have 

the data” because trial counsel knew that the military judge had excluded evidence that a prior non-sexual interaction between Mr. Mike and Ms. C.G. had 

“triggered the complaining witness into recalling prior sexual abuse.”66 During 

his rebuttal argument, trial counsel also stated “there is no evidence here to 

support that she had any kind of false memory.”67 The Defense made no objection to these arguments at trial.68

 

63 App. Ex. LXXII at 7.

64 App. Ex. LXXII at 7

65 App. Ex. LXXII at 8.

66 Appellant’s Br. at 52-53.

67 R. at 655.

68 R. at 645.
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1. Standard of review

Improper argument is a question of law that appellate courts review de 

novo.69 The test for improper argument is “whether the argument was erroneous and whether it materially prejudiced the substantial rights of the accused.”70 A failure to timely object to an improper argument constitutes forfeiture of the objection.71 But even if the objection is forfeited, we will review an 

allegation of an improper argument for plain error.72 Plain error is (1) error, 

(2) that is plain or obvious, and (3) that results in material prejudice to a substantial right of the accused.73

2. The argument in this case.

Appellant quotes these statements with incomplete context. Trial counsel’s

argument was:

Members, you heard today that MM3 Johnson hid at the end of 

the bed. He hid in the corner of the room, that he hid his whereabouts concerning the day of the assault from NCIS, and he hid 

the fact he even knew of [Ms. C.G.]. Nothing has been hidden 

from you. You have it all. The defense expert said during his testimony that the more data you have, the more accurate your 

opinion and your vote can be. That’s true for you as well. You 

have the data, the data that provides the only just conclusion in 

this case and that is that MM3 Johnson is guilty.74

The thrust of defense counsel’s closing argument was that no contact had 

occurred between Appellant and Ms. C.G. at all, and that she was mistaken 

and was misremembering due to her prior sexual trauma. He stated:

And [Major Charlie] explained that past trauma and sexual assault can impact how we see present situations. So even if she 

could have truly believed at that point that she had fingers in 

 

69 See United States v. Witt, 83 M.J. 282, 285 (C.A.A.F. 2023) citing United States 

v. Frey, 73 M.J. 245, 248 (C.A.A.F. 2014).

70 See id.

71 R.C.M. 919(c).

72 See United States v. Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005).

73 See Fletcher, 62 M.J. at 179; see also United States v. Rodriguez, 60 M.J. 87, 88 

(C.A.A.F. 2004).

74 R. at 645.
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15

her vagina, though no contact anywhere else, that doesn’t mean 

that was actually happening. Her past trauma made her believe 

something that wasn’t real, what wasn’t happening.75

This opened the door to trial counsel’s rebuttal argument that “there is no 

evidence here to support that she had any kind of false memory.” Trial counsel’s arguments were fair comment on the evidence admitted at trial, and the 

fact that the military judge had excluded testimony about the unrelated nonsexual incident between Mr. Mike and Ms. C.G. does not in any way render

trial counsel’s comments improper in the context of this case.

We find no error here, let alone an error that rises to the level of plain error.

D. The evidence adduced at trial is factually sufficient. 

Appellant contends that the evidence is factually insufficient to support a 

conviction. In evaluating factual sufficiency for cases where the alleged misconduct occurred before 2021, we determine “whether, after weighing the evidence in the record of trial and making allowances for not having personally 

observed the witnesses, [we] are . . . convinced of [Appellant’s] guilt beyond a 

reasonable doubt.”76 In conducting this unique appellate function under the 

version of Article 66, UCMJ applicable to cases like this one which occurred in 

2019, we take “a fresh, impartial look at the evidence,” applying “neither a 

presumption of innocence nor a presumption of guilt” to “make [our] own independent determination as to whether the evidence constitutes proof of each 

required element beyond a reasonable doubt.”77 Proof beyond a “[r]easonable

doubt, however, does not mean the evidence must be free from conflict.”78

The court-martial members found Appellant guilty of sexually assaulting 

Ms. C.G. by penetrating her vulva with his finger with an intent to arouse or 

gratify his sexual desire, when he knew or should have known that she was 

asleep.79 To prove sexual assault, as charged in Specification 1, the Government had to prove that: (1) Appellant committed a sexual act on Ms. C.G. by 

causing penetration, however slight, of her vulva by his finger; (2) he did so in 

 

75 R. at 652.

76 Turner, 25 M.J. at 325.

77 United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).

78 United States v. Rankin, 63 M.J. 552, 557 (N-M. Ct. Crim. App. 2006).

79 The members also found Appellant guilty of Specification 2, which alleged the 

same sexual act “without her consent” (as she was asleep) and the military judge dismissed Specification 2 prior to sentencing. R at 675.
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order to arouse or gratify his sexual desire; and (3) he knew or reasonably 

should have known that Ms. C.G. was asleep.80 The Government further had 

to prove that Appellant did not honestly and reasonably believe that he was 

committing a sexual act with someone other than Ms. C.G.81

Appellant contends that the fact that he prodigiously and repeatedly vomited is evidence that he was too drunk to form the specific intent to commit a 

sexual offense.82 Appellant further contends that “a fair and reasonable hypothesis supports concluding that Appellant simply wandered into the wrong 

room of a dark, unfamiliar house and was tapping the complaining witness on 

the crotch area over her clothes while he was unsure of where he was or what 

he was doing.”83 We decline Appellant’s invitation to reach this conclusion because we find it to be rather dubious.

Thus, having considered all the testimony and the evidence admitted at 

trial, we are convinced beyond a reasonable doubt that that Appellant, though 

drunk, was able to form the specific intent to gratify his sexual desires and 

that he penetrated Ms. C.G.’s vagina with his finger while he knew (or should 

have known) she was asleep. Appellant had been pursuing a sexual encounter 

with Ms. Alpha, which was ultimately unsuccessful. Ms. C.G. was in a dark 

room, in bed with her boyfriend. She had not invited Appellant into that room, 

nor had she interacted with him romantically at any point. Further, Appellant

had the initial thought to try to hide when Ms. C.G. woke up, which shows 

some awareness both that he knew what he was doing, and that she had been 

asleep.

The evidence is factually sufficient to sustain the conviction.

E. Military members panels are not required to reach a unanimous 

verdict.

Appellant challenges his conviction because the military judge did not instruct the members that their verdict must be unanimous.84 Appellant cites to 

 

80 Article 120, UCMJ.

81 R. at 625-26. See R.C.M. 916(j)(1).

82 Appellant’s Br. at 61.

83 Appellant’s Br. at 62.

84 Appellant’s Br. at 65. See R. at 656 (military judge’s instructions that threefourths of the members must concur in a guilty finding). Of course, we do not know 

whether the verdict in this case was unanimous or not.
United States v. Johnson, NMCCA No. 202200125

Opinion of the Court

17

the United States Supreme Court’s opinion in Ramos v. Louisiana for the proposition that a jury trial must reach a unanimous verdict in order to convict.85

The statute governing members’ verdicts in courts-martial provides that the 

concurrence of three-fourths of the members is required for a finding of guilt 

in a noncapital case.86 The Court of Appeals for the Armed Forces and this 

Court have already held that the Sixth Amendment’s requirement for a unanimous verdict for serious offenses tried in state or civilian federal criminal 

courts does not apply to courts-martial.87 Accordingly, we decline to set aside 

the findings and sentence in this case on that basis.

III. CONCLUSION

After careful consideration of the record and briefs, as well as the excellent 

oral arguments of appellate counsel, we have determined that the findings and 

sentence are correct in law and fact and that no error materially prejudicial to 

Appellant’s substantial rights occurred.88

The findings and sentence are AFFIRMED. 

 

85 Ramos v. Louisiana, 140 S. Ct. 1390 (2020).

86 Art. 52, UCMJ; 10 U.S.C. § 852.

87 United States v. Anderson, 83 M.J. 291 (C.A.A.F. 2023); United States v. Causey, 

82 M.J. 574 (N-M. Ct. Crim. App. 2022).

88 Articles 59 & 66, UCMJ.
United States v. Johnson, NMCCA No. 202200125

KIRKBY, J. (concurring in the judgment)

KIRKBY, Judge (concurring in the judgment):

I write separately to express my concern with the Government’s seemingly 

cavalier approach to the selection of members under Article 25 of the Uniform 

Code of Military Justice [UCMJ], in this case. While the opinion correctly analyzes the Rule for Courts-Martial [R.C.M.] 707 speedy trial clock issue before 

us, the underlying problem was the inclusion of the Assistant Staff Judge Advocate to the Convening Authority on the original convening order. It is highly 

improper by any stretch of the imagination. While not a violation of the language of Article 25, UCMJ, it is without a doubt a violation of the spirit of 

justice the government is charged with overseeing in the military. 

I. DISCUSSION

As the majority opinion points out, the Government is not foreclosed from 

raising similar issues in different cases with the hope of different outcomes.1

However, even hoping that the inclusion of the Assistant Staff Judge Advocate 

on the Convening Order would be permissible, except in extreme circumstances not present here, it raises questions of fundamental fairness.2 Once the 

Government was put on notice that the military judge saw an issue with the 

convening order, the prosecution should have reviewed it, taken a step back 

and considered the greater purpose of military law—to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote 

efficiency and effectiveness in the military establishment, and thereby to 

strengthen the national security of the United States.3 The inclusion by the

Convening Authority of the Assistant Staff Judge Advocate on the Convening 

Order objectively called into question the justice of this proceeding, undermined its efficiency by 108 days, and invited public scrutiny and criticism of 

the military justice process. 

While I agree with both the opinion and the military judge that the 108 

days of time could be excluded and no R.C.M. 707 violation occurred, convening 

authorities and staff judge advocates should be cognizant of the appearance of 

impropriety. Even though there is no technical violation of Article 25, UCMJ, 

 

1 Opinion at 9.

2 At oral argument, the government appellate counsel acknowledged never having 

seen a situation where a Staff Judge Advocate was listed on the convening order.

3 Preamble to the Manual for Courts-Martial, United States, Part I, para. 3.
United States v. Johnson, NMCCA No. 202200125

KIRKBY, J. (concurring in the judgment)

2

there is a real threat of undermining military justice when members of a convening authority’s legal staff are offered up as impartial panel members in any 

case.

II. CONCLUSION

Accordingly, while I do not join the majority analysis in all respects, I concur with the judgment reached by the Court.

 

FOR THE COURT:

MARK K. JAMISON

Clerk of Court