UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

MULLIGAN, CAMPANELLA,1 WOLFE 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Specialist JUVENTINO TOVARCHAVEZ 

United States Army, Appellant 

ARMY 20150250 

Headquarters, 8th Theater Sustainment Command 

Gregory Gross, Military Judge (trial) 

Timothy P. Hayes, Jr. (DuBay hearing) 

Colonel Anthony T. Febbo, Staff Judge Advocate (pretrial & recommendation) 

Lieutenant Colonel Lajohnne A.W. Morris, Staff Judge Advocate (addendum) 

For Appellant: Captain Ryan T. Yoder, JA; Major Brian J. Sullivan, JA (on brief); 

Captain Ryan T. Yoder, JA; Major Brian J. Sullivan, JA (on reply); Lieutenant 

Colonel Melissa R. Covolesky, JA; Captain Ryan T. Yoder, JA; Major Brian J. 

Sullivan, JA (on brief on specified issues); Lieutenant Colonel Christopher D. 

Carrier, JA; Captain Cody D. Cheek, JA; Major Brian J. Sullivan, JA (on reply brief 

on specified issues); Major Brendan R. Cronin, JA; Major Brian J. Sullivan, JA (on 

supplemental brief); Major Brendan R. Cronin, JA; Major Todd W. Stewart, JA; 

Major Brian J. Sullivan, JA (on supplemental reply brief). 

For Appellee: Lieutenant Colonel A.G. Courie, III, JA; Major Melissa Dasgupta 

Smith, JA; Captain Christopher A. Clausen, JA (on brief); Major Michael E. Korte, 

JA; Captain Christopher A. Clausen, JA (on brief on specified issues); Colonel Tania 

M. Martin, JA; Lieutenant Colonel Eric K. Stafford, JA; Captain Austin L. Fenwick, 

JA; Captain Joshua Banister, JA (on supplemental brief). 

19 July 2018 

--------------------------------- MEMORANDUM OPINION 

--------------------------------- 

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent. 

 

1

 Senior Judge Campanella took action on this case prior to leaving the court. 
TOVARCHAVEZ—ARMY 20150250 

2 

WOLFE, Judge: 

This case returns to us for completion of our Article 66, Uniform Code of 

Military Justice, 10 U.S.C. § 866 [UCMJ], review, after a DuBay2 fact-finding 

hearing. In our original decision we addressed appellant’s claim of instructional 

error pursuant to United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016), whether 

appellant was entitled to a mistake of fact instruction, and whether appellant’s 

defense counsel were ineffective. We resolved the first two issues against appellant, 

but directed a DuBay hearing to address the claim of ineffective assistance of 

counsel. United States v. Tovarchavez, ARMY 20150250, 2017 CCA LEXIS 602 

(Army Ct. Crim. App. 7 Sep. 2017). 

BACKGROUND 

 Appellant was charged with two specifications of sexual assault in violation 

of Article 120, UCMJ, for sexually assaulting his fellow soldier, Specialist (SPC) 

JR, on two separate occasions. An enlisted panel of a general court-martial 

convicted appellant only of the latter instance. The convening authority approved 

the adjudged sentence to a dishonorable discharge, confinement for two years, total 

forfeiture of pay and allowances, and reduction to the grade of E-1. 

At the completion of the DuBay hearing, we directed additional briefing on 

the Hills assignment of error based on developments in the case law since we issued 

our initial opinion. We also granted appellant’s motion to file supplemental 

briefings regarding the claim of ineffective assistance of counsel.3 With the record 

now returned to this court, we again resolve the Hills issue and the ineffective 

assistance of counsel claim against appellant and adopt our previous opinion with 

respect to the mistake of fact instruction. 

 

2 See United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967). 

3

 Appellant also requested to file a supplemental brief on the Hills assignment of 

error in light of our superior court’s decision in United States v. Guardado, 77 M.J. 

90 (C.A.A.F. 2017). We received appellant’s motion just as we issued our order for 

additional briefing. Thus, while we denied appellant’s motion, it was only because 

it was mooted by our order on the same issue. 
TOVARCHAVEZ—ARMY 20150250 

3 

LAW AND DISCUSSION 

A. The Hills Issue 

The military judge gave the panel in this case an instruction that was for all 

substantive purposes identical to the instruction that the Court of Appeals for the 

Armed Forces (CAAF) found to be error in United States v. Hills. 75 M.J. at 353. 

Appellant offered no objection to the instruction at trial. Thus, we test for 

plain error. “[I]f the accused fails to preserve the instructional error by an adequate 

objection or request, we test for plain error.” United States v. Williams, __ M.J. __, 

2018 CAAF LEXIS 365, *7 (C.A.A.F. 27 Jun. 2018) (citing United States v. Davis, 

76 M.J. 224, 229 (C.A.A.F. 2017)); see also United States v. Guardado, 77 M.J. 90, 

93 (C.A.A.F. 2017). 

Of the three part plain error test, it is now well established that the Hills 

instruction was error that is clear and obvious on appeal. Accordingly, this opinion 

addresses only the third prong: prejudice. The question then becomes, “what is the 

appropriate measure of assessing prejudice?” 

In this case of forfeited error, does this court determine whether the error was 

harmless under Article 59(a), UCMJ? Or, as the forfeited error is constitutional, do 

we determine whether the error was harmless beyond a reasonable doubt? Does 

appellant have the burden of establishing plain error? Or, to sustain the conviction, 

is the government required to prove constitutional harmlessness?4

We cannot avoid these questions because, in this case, the result turns on 

which lens we use when assessing the evidence. There are cases where, in practice, 

the standard for establishing prejudice is irrelevant to an appellate court’s 

determination of the issue. For example, when an error is grossly prejudicial (or 

harmless under any standard), settling on the correct standard does not change the 

result. This is not such a case. 

Our resolution of the Hills error in this case turns entirely on determining the 

appropriate test for prejudice of a forfeited constitutional error. In their briefs, both 

parties assert the appropriate standard of review for a forfeited constitutional error 

requires the government to show the error was “harmless beyond a reasonable 

 

4

 Our discussion of the “burden” on a party should be understood in the context of 

this court’s duty to conduct a de novo review of the record under Article 66(c), 

UCMJ. Although we quote our superior court’s and federal court’s case law 

containing references to a party’s “burden,” at least for an issue which does not 

require reference to facts outside the authenticated record, the application of that 

burden may be different in a Court of Criminal Appeals. 
TOVARCHAVEZ—ARMY 20150250 

4 

doubt.” On the other hand, recent decisions by the CAAF have stated that the 

inquiry is whether appellant has shown material prejudice to a substantial right. 

Determining the correct test changes both who has the burden of proof and 

what they must prove. Is it appellant’s burden to show material prejudice to a 

substantial right? Or, is it immaterial whether the error was preserved or 

unpreserved and it is the government’s burden to prove beyond a reasonable doubt 

that the error did not contribute to the verdict? There is a vast difference between 

the two standards. Because we see room for reasonable disagreement–and our 

dissenting colleague does indeed disagree–we discuss our analysis at some length. 

1. United States v. Wolford5

 In United States v. Wolford, the CAAF considered an instructional error that 

amounted to a violation of the accused’s right to due process. That is, the erroneous 

instruction was constitutional error, as in Hills. Indeed, Hills relied on Wolford in 

determining the standard of review. Hills, 75 M.J. at 357. The Wolford opinion 

contained a stand alone section on the standard of review for forfeited instructional 

error, which stated in its entirety: 

Defense counsel did not object to the military judge’s 

instructions at the time of trial. Even so, “[t]his [c]ourt 

has determined that waiver must be established by 

‘affirmative action of the accused’s counsel,’ and not by ‘a 

mere failure to object to erroneous instructions . . . .’” 

United States v. Smith, 50 M.J. 451, 455-56 (C.A.A.F. 

1999) (quoting United States v. Mundy, 2 C.M.A. 500, 

502, 9 C.M.R. 130, 132 (1953)) (emphasis in original). 

Accordingly, we review Wolford’s instructional claims de 

novo. Id. at 455. If instructional error is found, because 

there are constitutional dimensions at play, Wolford’s 

claims “must be tested for prejudice under the standard of 

harmless beyond a reasonable doubt.” United States v. 

Kreutzer, 61 M.J. 293, 298 (C.A.A.F. 2005). “The inquiry 

for determining whether constitutional error is harmless 

beyond a reasonable doubt is ‘whether, beyond a 

reasonable doubt, the error did not contribute to the 

defendant's conviction or sentence.’” Id. (quoting United 

States v. Kaiser, 58 M.J. 146, 149 (C.A.A.F. 2003)). 

Wolford, 62 M.J. at 420 (alteration in the original). 

 

5

 62 M.J. 418 (C.A.A.F. 2006). 
TOVARCHAVEZ—ARMY 20150250 

5 

Under Wolford, there does not appear to any difference between preserved and

unpreserved constitutional error. Absent a precise affirmative waiver, we would 

review questions “de novo” and review any error for constitutional harmlessness 

regardless whether appellant affirmatively objected to the instruction or forfeited the 

objection. 

We distinguish Wolford from this case for several reasons. 

First, Wolford was part of a line of cases that stood “for the proposition that 

an appellant cannot forfeit an affirmative defense.” Davis, 76 M.J. at 229 (citations 

omitted). If Wolford is part of a line of cases only addressing instructions on 

affirmative defenses, then Wolford is not controlling when it comes to assessing 

forfeited Hills error. 

Second, the CAAF has recently distanced itself from Wolford’s reasoning. In 

Davis the CAAF included Wolford in a list of cases that went against the standard 

articulated in R.C.M. 920(f), was against the “precise” reading of earlier cases, and 

stood against “the great weight of our precedent clearly call[ing] for plain error 

review.” Davis, 76 M.J. 229. According to Davis, a strict application of Wolford

would be against the majority of the CAAF’s case law. 

Third, consistent with the reasoning in Davis, in cases subsequent to Hills the 

CAAF has applied a plain error test to forfeited Hills error. We discuss those cases 

below. 

The dissent correctly notes that the CAAF has never explicitly overruled 

Wolford.6

 Indeed, the CAAF, in Hills, cited Wolford for the standard of review used 

in that case. When “instructional error is found [when] there are constitutional 

dimensions at play, [the appellant’s] claims ‘must be tested for prejudice under the 

standard of harmless beyond a reasonable doubt.’” Hills, 75 M.J. at 357 (citing 

Wolford 62 M.J. at 420).7

 

 

6

 It is not for this Court to determine that the CAAF has implicitly overruled its 

precedent. Davis, 76 M.J. at 228 n. 2. Accordingly, we do not view the CAAF as 

having overruled Wolford in Davis. 

7 Hills, of course, was a case of preserved error. We do not find Hills to be 

controlling precedent in cases of unpreserved error. 
TOVARCHAVEZ—ARMY 20150250 

6 

2. United States v. Paige8

In our initial opinion before remanding this case for a DuBay hearing, we 

relied on United States v. Paige for the standard of review in cases of forfeited 

constitutional error. There, a divided court applied a plain error standard of review. 

Paige, 67 M.J. at 449. This is the same standard of review applied by the CAAF in 

an earlier decision, United States v. Carter, wherein the court stated: 

The certified issue requires us to determine whether trial 

counsel’s statements amounted to an impermissible 

reference to Appellee’s Fifth Amendment right to not 

testify, or whether the statements were a fair response to 

the defense’s theory of the case. In the absence of 

objection, we review for plain error. R.C.M. 919(c); 

[United States v. Gilley, 56 M.J. 113, 123 (C.A.A.F. 

2001)]. Appellee must show that there was error, that the 

error was plain, and that the error materially prejudiced 

his substantial rights. See United States v. Powell, 49 

M.J. 460, 463-65 (C.A.A.F. 1998). Once Appellee meets 

his burden of establishing plain error, the burden shifts to 

the Government to convince us that this constitutional 

error was harmless beyond a reasonable doubt. United 

States v. Carpenter, 51 M.J. 393, 396 (C.A.A.F. 1999). 

61 M.J. 30, 33 (C.A.A.F. 2005). Unlike the decision in Wolford ̧ the CAAF in Paige 

clearly stated appellant’s burden to establish plain error. In our original opinion, 

relying on the last sentence quoted above, we understood the test as first requiring 

appellant to prove all three elements of plain error. That is, in order to establish 

plain error, appellant must first establish material prejudice to a substantial right. 

Only, “[o]nce [appellant] meets his burden of establishing plain error, [will] the 

burden shift[] to the Government to convince us that this constitutional error was 

harmless beyond a reasonable doubt. Paige, 67 M.J. at 449. 

 

In our initial opinion we struggled to understand the burden shift articulated 

in Paige. As a matter of logic, if appellant has established material prejudice to a 

substantial right, how could the government ever be able to show that the error was 

harmless beyond a reasonable doubt? On appeal, an error in a case cannot 

simultaneously: 1) materially prejudice appellant’s rights; and 2) be harmless 

beyond a reasonable doubt. 

 

8

 67 M.J. 442, 449 (C.A.A.F. 2009). 
TOVARCHAVEZ—ARMY 20150250 

7 

The plain error standard announced in Paige was not without controversy. 

Judge Stucky, joined by Judge Ryan, argued in dissent that the majority had 

misapplied the CAAF’s precedent. 

The majority asserts that once an appellant has established 

plain, constitutional error, “the burden shifts to the 

Government” to establish that the error was harmless 

beyond a reasonable doubt. United States v. Paige, 67 

M.J. at 449 (C.A.A.F. 2009) (citing United States v. 

Carter, 61 M.J. 30, 33 (C.A.A.F. 2005)).” But that 

language from Carter was derived from dictum in Powell, 

49 M.J. at 464-65, that was based on United States v. 

Adams, 44 M.J. 251, 252 (1996), a case in which neither 

the issue granted for review nor this Court's opinion 

discussed plain error. 

Paige, 67 M.J. at 453 (Stucky, J. dissenting). 

When we first addressed the Hills error in this case we applied Paige as we 

understood it. However, the CAAF has since issued additional opinions addressing 

forfeited Hills error. 

3. United States v. Guardado and United States v. Williams 

Since our original opinion, the CAAF has issued two (unanimous) decisions 

involving the standard of review in cases of unpreserved constitutional error, both 

involving the exact same type of error as we presently address. 

In United States v. Guardado, the CAAF stated the standard of review for 

forfeited Hills error as follows: 

This Court has repeatedly held that plain error 

occurs when: (1) there was error, (2) such error was clear 

or obvious, and (3) the error materially prejudiced a 

substantial right of the accused. The burden lies with 

Appellant to establish plain error. 

77 M.J. at 93 (citations omitted) (emphasis added). If one asked whether the plain 

error test applies to forfeited instructional error, even error of a constitutional 

magnitude, it would appear the CAAF answered the question in Guardado. 

In United States v. Williams, the CAAF directly cited to Guardado for the 

appropriate standard of review, but articulated it in a slightly different manner: 

Under this Court’s plain error jurisprudence, to establish 

plain error an appellant must demonstrate (1) error, (2) 
TOVARCHAVEZ—ARMY 20150250 

8 

that is clear or obvious at the time of appeal, and (3) 

prejudicial. 

Williams, __ M.J.__, 2018 CAAF LEXIS 365, at *7 (citing Guardado, 77 M.J. at 

93). 

Notably, in both Guardado and Williams the court omitted the second burden 

shift that had been articulated in Paige and Carter. That is, in neither case did the 

court ask whether the error was harmless beyond a reasonable doubt. Indeed, in 

Williams, the court explicitly stated a prejudice analysis that is based on Article 

59(a), UCMJ: “Having found error, we must determine whether such error 

prejudiced Appellant’s substantial rights.” Id. at *8. 

4. United States v. Lopez & United States v. Robinson 

In Molina-Martinez v. United States, the Supreme Court announced the 

general rule for assessing the prejudice prong in the case of plain error. “[T]he error 

must have affected the defendant’s substantial rights, ibid., which in the ordinary 

case means he or she must ‘show a reasonable probability that, but for the error,’ the 

outcome of the proceeding would have been different.” 136 S. Ct. 1338, 1343 

(2016) (citations omitted). 

Because the military justice system relies on a different statutory source for 

our plain error analysis,9 it is not always clear that civilian precedents regarding 

plain error are applicable to military appellate practice. However, in United States 

v. Lopez, 76 M.J. 151, 154 (C.A.A.F. 2017), the CAAF adopted the Molina-Martinez 

standard. The CAAF summarized the plain error standard as follows: 

Appellant thus “has the burden of establishing (1) error 

that is (2) clear or obvious and (3) results in material 

prejudice to his substantial rights.” United States v. 

Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014); see also United 

States v. Dominquez Benitez, 542 U.S. 74, 82, 124 S.Ct. 

2333, 159 L.Ed.2w 157 (2004) (“the burden of 

establishing entitlement to relief for plain error is on the 

defendant claiming it”). “[F]ailure to establish any one of 

the prongs is fatal to a plain error claim.” United States v. 

Bungert, 62 M.J. 346,348 (C.A.A.F. 2006). Here, 

Appellant cannot establish material prejudice. 

 

9

 The Supreme Court’s decision in United States v. Olano, 507 U.S. 725 (1993) was 

based on an interpretation of Fed. R. Crim. Proc. 52(b). See United States v. 

Humpries, 71 M.J. 209, 220-21 (C.A.A.F. 2012); Powell, 49 M.J. 460, 465 (C.A.A.F. 

1998). 
TOVARCHAVEZ—ARMY 20150250 

9 

In this context, material prejudice to the substantial 

rights of the accused occurs when an error creates “an 

unfair prejudicial impact on the [court members’] 

deliberations.” Knapp, 73 M.J. at 37 (alteration in 

original) (internal quotation marks omitted) (citation 

omitted). In other words, the appellant must show a 

reasonable probability that, but for the error, the outcome 

of the proceeding would have been different.” MolinaMartinez v. United States, 136 S. Ct. 1338, 1343, 194 L. 

Ed. 2d 444 (2016) (internal quotation marks omitted) 

(citation omitted). 

Id. (alterations in original); but see United States v. Haverty, 76 M.J. 199, 209 

(C.A.A.F. 2017) (Stucky, J. dissenting: “In United States v. Lopez, we adopted the 

Supreme Court’s interpretation of the prejudice prong of the plain error test: “the 

appellant ‘must show a reasonable probability that, but for the error, the outcome of 

the proceeding would have been different.’”). 

In United States v. Robinson, the CAAF applied Lopez and Molina-Martinez

to a case of instructional plain error that appears to be one of constitutional 

magnitude. 77 M.J. 294, 299 (C.A.A.F. 2018) (citing Lopez, 76 M.J. at 154). In 

Robinson, the question was whether appellant was prejudiced when the military 

judge instructed the panel on an impermissibly low mens rea.10 The defense had not 

objected. The court announced the test for determining prejudice in the plain error 

context, citing to Guardado and Davis, as follows:

Because Appellant did not object to the military 

judge’s instructions at trial, we review for plain error 

based on the law at the time of appeal. Appellant bears 

the burden of establishing: (1) there is error; (2) the error 

is clear or obvious; and (3) the error materially prejudiced 

a substantial right. To establish plain error, all three 

prongs must be satisfied. The third prong is satisfied if 

the appellant shows a reasonable probability that, but for 

the error claimed, the outcome of the proceeding would 

have been different. 

. . . . 

Appellant has failed to meet his burden of showing that 

but for [this error], the outcome of the proceeding would 

have been different. 

 

10 The CAAF assumed error. Id.
TOVARCHAVEZ—ARMY 20150250 

10 

77 M.J. at 299 (C.A.A.F. 2018) (quotations and citations omitted). Thus, to the 

extent that the CAAF’s decision in Guardado may be susceptible to multiple 

interpretations, in Robinson the CAAF itself interpreted Guardado to require a plain 

error analysis. 

5. United States v. Riggins11 and United States v. Oliver12

Although not cases involving instructional error, both United States v. Riggins 

and United States v. Oliver provide insight into our superior court’s treatment of 

preserved and unpreserved constitutional errors. Both cases addressed the same 

error: that the accused was convicted of a lesser-included offense that was not, in 

fact, a lesser included offense. In Riggins the error was preserved and in Oliver the 

error was forfeited. In Riggins the court stated for “preserved constitutional errors, 

such as in the instant case, the Government bears the burden of establishing that the 

error is harmless beyond a reasonable doubt.” 75 M.J. at 85. By contrast, in Oliver, 

the error was never objected to at trial, and the court tested to determine if appellant 

had met his burden of establishing “material prejudice to his substantial rights.” 76 

M.J. at 275. 

6. Interpreting the Standard of Review 

 

In light of Guardado, Robinson, and Williams, we understand that the 

appropriate prejudice analysis for unpreserved error–even error of a constitutional 

magnitude–is whether the error materially prejudiced the substantial rights of 

appellant. Article 59(a), UCMJ. That is, if appellant meets his burden of 

establishing plain error, the inquiry ends and we are not required to reach the 

question of whether the error was harmless beyond a reasonable doubt. We come to 

that conclusion for several reasons.

First and foremost, we believe our superior court spoke clearly when, at the 

threshold of their opinion in Guardado, they announced they were reviewing the 

case to determine whether the error materially prejudiced the substantial rights of 

appellant.13 77 M.J. at 93. On balance, the CAAF’s decisions in Williams and 

 

11 75 M.J. 78 (C.A.A.F. 2016). 

12 76 M.J. 271 (C.A.A.F. 2017). 

13 To the extent that this standard contradicts the standard announced in Wolford,

Paige, Harcrow, or the other cases cited by the dissent, we think it best to follow the 

CAAFs more recent precedent. While we agree that these cases remain “good law” 

until the CAAF says otherwise, we are stuck between what the CAAF stated over a 

decade ago and what they wrote last term. United States v. Hardy, __ M.J.__, 2018 

(continued . . .) 
TOVARCHAVEZ—ARMY 20150250 

11 

Robinson also steer us towards applying the standard test for determining prejudice as part 

of a plain error analysis. 

While we acknowledge the dissent’s reasonable arguments to the contrary, in 

Guardado, the CAAF addressed the Hills error within the context of materially 

prejudicing a substantial right of the accused and concluded it was unable to 

determine “the military judge’s M.R.E. 413/414 instruction was harmless.” Id. at 95 

(emphasis added). The CAAF did not state it was unable to determine the 

instruction was harmless beyond a reasonable doubt. The omission of the phrase 

“harmless beyond a reasonable doubt” would not appear to be oversight; it would be 

the whole enchilada. We do not interpret a citation to Hills (which is an 

unsurprising citation in a case discussing Hills error) as having intended to change 

the burden or degree of prejudice required that was so plainly stated at the beginning 

of the opinion. Nor do we understand the CAAF to have created a Hills-specific 

plain error test. 

Moreover the language in Williams confirms for us that the test for prejudice 

is simple harmlessness. __ M.J. __, 2018 CAAF LEXIS 365, * 13-14. In Williams

the CAAF concluded “the military judge’s M.R.E. 413 instruction was not harmless

with respect to the Specification of Charge I or Specifications 2, 3, and 4 of Charge 

II.” Id. at *13. The CAAF never stated this error was not harmless beyond a 

reasonable doubt. Similarly, the CAAF affirmed Specification 1 of Charge II 

asserting that based on the corroborating evidence it was “confident that [Williams] 

committed sodomy with SW by force and without her consent.” Id. at *14. The 

CAAF never asserted it was–or required itself to be–confident beyond a reasonable 

doubt. 

And then, we must consider that our superior court in Lopez specifically 

adopted the Molina-Martinez plain error test. The CAAF recently went on to apply 

Lopez to an instance of forfeited constitutional error in Robinson. 

Second, the standard announced in Guardado, Williams, and Robinson appears 

to be similar to the standard used in federal civilian appellate courts for assessing 

prejudice in the case of forfeited constitutional error. Recently, in United States v. 

Cardena, the 7th Circuit summarized the Supreme Court case law on forfeited 

constitutional error. While the analysis does not square on all four corners with 

military plain error jurisprudence, the summary is informative:

But even a jury-instruction error of constitutional 

dimension is subject to the familiar requirement that the 

 

(. . . continued)

CAAF LEXIS 324, at *9 n.5 (C.A.A.F. 5 Jun. 2018) (“When confronted with 

conflicting precedents, we generally follow the most recent decision.”). 
TOVARCHAVEZ—ARMY 20150250 

12 

error have harmed the defendant. See Skilling v. United 

States, 561 U.S. 358, 414, 130 S. Ct. 2896, 177 L. Ed. 2d 

619 (2010) (noting that a jury instruction error of the 

Yates variety is subject to harmless-error review); 

Hedgpeth v. Pulido, 555 U.S. 57, 60, 129 S. Ct. 530, 172 

L. Ed. 2d 388 (2008) (same). In other words, to constitute 

reversible error, the plain error must have affected the 

defendant’s substantial rights such that there is a 

reasonable probability that but for the error the outcome 

of the trial would have been different. Molina-Martinez v. 

United States, 136 S. Ct. 1338, 1343, 194 L. Ed. 2d 444 

(2016); United States v. McGuire, 835 F.3d 756, 2016 WL 

4527557, at *2 (7th Cir. 2016). The analysis “requires the 

same kind of inquiry” as harmless-error review, except 

that the burden is on the defendant to show prejudice. 

United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 

1770, 123 L. Ed. 2d 508 (1993). Defendants have not 

satisfied their heavy burden of showing that the error 

affected their substantial rights. United States v. Butler, 

777 F.3d 382, 388 (7th Cir. 2015) (calling the plain error 

test “remarkably demanding”). 

842 F.3d 959, 998 (7th Cir. 2016). See also United States v. Gonzalez-Huerta, 403 

F.3d 727, 733 (10th Cir. 2005); United States v. Woodard, 387 F.3d 1329, 1331 

(11th Cir. 2004). 

 Third, and relatedly, this court may only set aside the findings based on an 

error of law if the error materially prejudiced the substantial rights of the accused. 

UCMJ art. 59(a). Only if the Constitution requires a different standard are we 

released from Article 59(a)’s constraints.14 United States v. Vazquez, 72 M.J. 13, 19 

(C.A.A.F. 2013). Our superior court has clearly stated that a military accused does 

not enjoy due process protections above and beyond what is provided for by the 

Constitution, statute, and procedural rules. Id. Accordingly, it would be 

inconsistent with Article 59(a), UCMJ, to test if an error was harmless beyond a 

reasonable doubt in a case where civilian courts would test only simple 

harmlessness. 

Accordingly, we must determine whether the Hills error was harmless–that is, 

whether the “error materially prejudiced Appellant’s substantial rights.” 

 

14 However, Article 59(a) only applies to errors of law. Compare Article 59(a), 

UCMJ, with Article 66(c), UCMJ. 
TOVARCHAVEZ—ARMY 20150250 

13 

7. The Error Here Was Harmless 

The evidence against appellant in this case was significant and consisted of 

more than the complaining witness’s testimony. The charged victim, SPC JR 

testified credibly about the offense. She reported the offense shortly after the 

assault. A report of a physical examination noted vaginal tenderness and spotting. 

Swabs taken during the exam revealed the presence of appellant’s DNA in SPC JR’s 

vagina. 

Text messages between appellant and SPC JR corroborated her initial report 

and her in-court testimony. Appellant had gone to SPC JR’s room under the pretext 

of returning a box to her that contained some of her military gear. Appellant arrived 

at SPC JR’s barracks and asked by text for her room number. He then texted her to 

open the door. However, he did not bring the box of gear. Specialist JR testified 

appellant then assaulted her against her repeated protestations. Alcohol was not 

involved. 

After the assault, appellant initiated a text conversation: 

Appellant: You good 

Specialist JR: Nope 

Appellant: N Why 

Specialist JR did not immediately respond. In the meantime, she texted 

various military officials asking about moving to a new barracks room. In one 

message she asked if she could take one or two weeks of leave, “Even if I stay in the 

barracks and not go anywhere.” 

Three days later, SPC JR reinitiated the conversation with appellant.15 After a 

brief discussion about why appellant never brought her box of military gear (which 

had been the pretext for coming to her room the night of the assault), SPC JR 

specifically confronted appellant with an accusation of sexual assault. She texted 

appellant, “What’s weird is I told you no and you still forced me to have sex 

anyway.” 

Confronted with an accusation of sexual assault, appellant apologized, told 

SPC JR he had now dropped her stuff off at the company, and said “from now on im 

[sic] going to leave you alone.” 

 

15 This was a “pretext” text conversation in which SPC JR conducted the texts with 

an investigator from the Army Criminal Investigation Command. 
TOVARCHAVEZ—ARMY 20150250 

14 

Not accepting the apology, SPC JR pushed back and asked “If your [sic] sorry 

why did you do it[?]” Appellant responded by admitting “I made a mistake by 

crossing the line and I’m sorry for that, you deserve much more than that.” 

In sum, this was not a case that turned only on the testimony of SPC JR. Her 

testimony was corroborated by DNA evidence, a forensic exam, her own 

contemporaneous statements, and text messages that corroborated her timeline and 

provided significant evidence of appellant’s guilt and consciousness of guilt. 

Appellant did not testify or present evidence of a plausible counter-narrative that 

would detract from the weight of the government’s case. 

Given the strength of the evidence, and the lack of significant argument or 

discussion regarding propensity, we fail to find a material prejudice to any of 

appellant’s substantial rights. Indeed, the absence of any propensity argument (by 

the trial counsel) and the lack of objection by appellant, is indicative of the small 

degree that propensity evidence and the erroneous instruction played at this trial. 

But to the extent we are wrong, we have also considered whether the evidence 

is strong enough to convince us that the error was harmless beyond a reasonable 

doubt. We do this for purposes of transparency, and so that our superior court can 

make quick work of this opinion if we have erred. We are not convinced. While the 

evidence is strong, and the verdict has our full confidence, there is a wide gulf 

between testing for plain error and testing for constitutional harmlessness. 

As just discussed, SPC JR’s testimony describing an assault was corroborated 

by independent evidence. But, the DNA evidence, for example, did not directly 

contradict the defense theory of the case. While the inculpatory text messages by 

appellant can be interpreted as establishing consciousness of guilt for his crimes 

(and this is how we see them), they could also be the statements from someone who 

knows they have acted inappropriately, but not criminally. Accordingly, in our 

weighing, the evidence in this case falls between the two standards, and necessitates 

this lengthy analysis. 

B. Ineffective Assistance of Counsel 

The initial claim of ineffectiveness centered on an email appellant’s civilian 

defense counsel (CDC) sent his military defense counsel. In the email, the CDC 

expressed a low opinion of his trial performance, writing, “I screwed up crossing 

[the victim]. I alone was ineffective. . . .”16 

 

16 In our original opinion we noted at length that the email was an unsigned, 

unauthenticated attachment to appellant’s R.C.M. 1105 submissions that did not 

include the CDC’s name or other reliable indicia that it was what it claimed to be. 

We refused to consider the email. However, based on conflicting affidavits 

(continued . . .) 
TOVARCHAVEZ—ARMY 20150250 

15 

The standard for assessing a claim of ineffective assistance of counsel is well 

established. To establish deficient performance, a person challenging a conviction 

must show that “counsel’s representation fell below an objective standard of 

reasonableness.” Strickland v. Washington, 466 U.S. 668, 688 (1984). A court 

considering a claim of ineffective assistance must apply a “strong presumption” that 

counsel’s representation was within the “wide range” of reasonable professional 

assistance. Id. at 689. The challenger’s burden is to show “that counsel made errors 

so serious that counsel was not functioning as the ‘counsel’ guaranteed the 

defendant by the Sixth Amendment.” Id, at 687. 

With respect to prejudice, a challenger must demonstrate “a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the proceeding 

would have been different. A reasonable probability is a probability sufficient to 

undermine confidence in the outcome.” Id. at 694. 

We first address the weight we should give the civilian defense counsel’s 

opinion contained in an email that he was “ineffective.” We give it slight weight for 

two reasons. First, as the Supreme Court has stated, “After an adverse verdict at 

trial even the most experienced counsel may find it difficult to resist asking whether 

a different strategy might have been better, and, in the course of that reflection, to 

magnify their own responsibility for an unfavorable outcome.” Harrington v. 

Richter, 562 U.S. 86, 109 (2011). Second, a counsel’s subjective evaluation is of 

only marginal relevance in resolving an objective inquiry. Strickland requires an 

objective inquiry. 466 U.S. at 688. 

Accordingly, we turn to the substance of appellant’s claim. We note that the 

scope of our remand included consideration of “all of appellant’s claims of 

ineffective assistance of counsel.” That is, we provided a broad mandate to consider 

appellant’s claims at a forum that provides for compulsory process. Accordingly, at 

this point, appellant has had the opportunity to perfect the evidentiary basis for all 

of his claims of counsel ineffectiveness. 

 

(. . . continued)

unrelated to the email, we directed a DuBay hearing. For purposes of judicial 

economy, our DuBay order required the military judge to expand the fact-finding 

hearing to address all of appellant’s claims of ineffectiveness, whether raised as 

assigned errors or raised pursuant to United States v. Grostefon, 12 M.J. 431 

(C.M.A. 1982). In other words, since the authentication of the email could be easily 

resolved at the DuBay hearing, we broadened the scope of the hearing to address the 

full range of appellant’s claims. At the DuBay hearing, the civilian defense counsel 

agreed that he had sent the message, but explained that he was disappointed in his 

own performance and saw himself as ineffective, not necessarily that he was 

constitutionally ineffective under Strickland v. Washington.
TOVARCHAVEZ—ARMY 20150250 

16 

1. Failure to Obtain Exculpatory Messages 

Before trial, appellant told his civilian defense counsel about messages he had 

received from SPC JR over Facebook. Appellant claims that in the messages, SPC 

JR describes the charged conduct as an act of infidelity and adultery, not as a sexual 

assault. Appellant claims it was error not to introduce the messages. 

At the DuBay hearing, appellant testified that before trial he had deleted the 

messages from his Facebook account. He further testified that after trial, he went to 

Facebook headquarters to try to obtain the deleted messages and that he offered a 

$2,000 reward to anyone who could recover the messages. Neither effort was 

successful. 

The DuBay defense counsel called the civilian defense counsel, who testified 

that while he remembered a conversation about Facebook messages, he could not 

recall the messages’ content. He testified that appellant told him that he had deleted 

the messages, and he was concerned that this may be seen at the court-martial as 

conduct consistent with a consciousness of guilt. He therefore sought to avoid 

bringing the messages into the trial. 

On appeal, appellant argues that his civilian counsel still should have found 

and introduced the deleted messages because copies likely remained on SPC JR’s 

account.17 It is appellant’s burden to establish that his counsel was ineffective. This 

case has now had a fact-finding hearing. Appellant’s burden was not merely to 

prove that his counsel didn’t obtain the messages. Rather, it was to prove that they 

were obtainable by diligent counsel and to prove that the content of the messages 

mattered (i.e. prejudice). Appellant falls short on both counts. 

 

17 The DuBay judge found that the deleted messages were not recoverable. Appellant 

asks us to reject this finding based on a common-sense understanding of how modern 

communication functions. Based on the record actually established at the hearing, 

the military judge’s ruling is not erroneous. More generally, when the claim on 

appeal is that the trial attorney was deficient in not providing the trial court with 

‘X,’ the appellant should be providing the reviewing court with ‘X.’ Except in cases 

where the appellant can demonstrate that the evidence has since become 

unobtainable, providing the reviewing court with information helps establish that 

that it was obtainable by diligent counsel in the first instance. And certainly, the 

reviewing court will likely need to have the information to determine whether 

appellant has met his burden of showing the missing evidence was prejudicial under 

Strickland. Lastly, however, counsel risk being hoisted on their own petard if they 

argue that the trial defense counsel was ineffective for not obtaining evidence that 

they themselves have not obtained. 
TOVARCHAVEZ—ARMY 20150250 

17 

2. Cross-Examination of SPC JR 

On appeal, appellant lays out several areas in which he claims his counsel was 

ineffective in cross-examining SPC JR. 

First, he argues that his counsel should have transcribed SPC JR’s Article 32 

testimony in time for trial. To the extent that a verbatim transcript was necessary 

(vice the audio tape or summarized transcript), even post-DuBay we do not have a 

transcription of the Article 32 testimony.18 Moreover, although perhaps more 

technically challenging, nothing requires a witness to be impeached (or refreshed) 

with a written transcript instead of an audio recording. 

Second, appellant argues that his counsel should have confronted SPC JR with 

her Article 32 testimony. At the Article 32, SPC JR testified that she did not 

initially believe she had been “raped” until the nature of the offense had been 

explained to her. She also indicated she was conflicted in her feelings about what 

had happened with regard to her then boyfriend. Having listened to the audiotape, to 

include her explanations for these feelings, we see no prejudice under Strickland in 

not repeating the same line of inquiry at trial. 

Third, appellant claims that his defense team failed to cross-examine SPC JR 

about two post-assault conversations she had with appellant. Appellant in his 

affidavit to this court claimed that in both conversations SPC JR referred to the 

sexual assault as adultery and again repeated that she did not believe she had been 

raped. Again, having been provided a DuBay hearing to investigate this claim, 

neither side called SPC JR to determine what her testimony would have been if 

cross-examined, nor was appellant called to testify about these conversations. 

On balance, we find appellant has failed to meet his high burden of showing that his 

counsel was ineffective. We must evaluate counsel’s conduct “from the counsel’s 

perspective at the time.” Strickland, 466 U.S at 689. In Harrington, the Supreme 

Court wrote reliance “‘on the harsh light of hindsight’ to cast doubt on a trial . . . is 

precisely what Strickland . . . seek[s] to prevent.” Harrington, 562 U.S. at 89. To 

be sure, as the civilian defense counsel admitted at the DuBay, different choices 

 

18 On appeal, appellant has not provided this court with a transcript. Instead, 

appellant refers us to a disk containing the audio recording, presumably the same 

disk that was available to the trial participants. The disk contains three separate 

audio files. In every case, but especially a case where one claim of error involves a 

counsel’s failure to provide the tribunal with a transcript of the hearing, the court 

would appreciate being provided, if not a transcript, then at least references to 

specific time stamps on an audio recording so that we may easily find the testimony 

at issue. 
TOVARCHAVEZ—ARMY 20150250 

18 

could have been made and different strategies pursued.19 However, our job is not to 

determine whether counsel could have performed better; our job is to determine 

whether counsel were acting as counsel. 

The DuBay judge determined that appellant’s defense team were not deficient 

in their representation of appellant.20 Accordingly, the DuBay judge did not 

specifically rule on whether appellant had established the prejudice prong of the 

Strickland inquiry. We take the opposite approach. Although we do not specifically 

disturb the DuBay judge’s ruling, we find appellant failed to establish a reasonable 

probability that, but for counsel’s errors, the result of the proceeding would have 

been different. 

CONCLUSION 

The findings of guilty and the sentence are AFFIRMED. 

 Senior Judge MULLIGAN concurs. 

CAMPANELLA, Senior Judge, dissenting; 

 The majority creates a dispute where there is none between the parties. In 

doing so they ignore our superior court’s controlling precedent regarding application 

of the harmless beyond a reasonable doubt standard of prejudice for forfeited 

constitutional error. See United States v. Wolford, 62 M.J. 418, 420 (C.A.A.F. 

2006); United States v. Harcrow, 66 M.J. 154, 160 (2008); United States v. Sweeney, 

70 M.J. 296, 304 (2011). The majority concludes “our superior court spoke clearly” 

regarding the standard of mere harmless prejudice used to conduct its analysis in 

 

19 At the DuBay hearing, the civilian defense counsel, consistent with the content of 

post-trial emails he had sent, complained about the speed of the court-martial and 

the pace in which the panel members were instructed. He specifically faulted 

himself for not objecting to these issues. 

20 The DuBay judge did note several concerns about the civilian defense counsel. 

First, he faulted the civilian defense counsel for not having better pretrial 

coordination with the military defense counsel. We agree, but find no prejudice. 

Second, he described as “difficult to justify” the civilian defense counsel’s decision 

not to object to a panel member who had been a victim of sexual assault based on his 

in-court read of her demeanor. We disagree, as this is exactly the type of decision 

we will not second-guess under Strickland. Third, he described the civilian defense 

counsel’s decision to wait until after findings to raise a Rule for Courts-Martial 

[R.C.M.] 917 motion as “baffling.” An R.C.M. 917 motion may be raised at any 

time before adjournment, and since the evidence is certainly legally sufficient, any 

failure to raise the motion before findings was harmless. 
TOVARCHAVEZ—ARMY 20150250 

19 

both United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017), and United States v. 

Williams, __ M.J. __, 2018 CAAF LEXIS 365 (C.A.A.F. 27 June 2018). I disagree 

and would therefore set aside the findings of guilty. I agree with the majority’s 

assessment that the instructional error here was not harmless beyond a reasonable 

doubt. 

 In Guardado, the CAAF relied on Hills for the proposition that instructional 

error is reviewed de novo. 77 M.J. at 93 (citing United States v. Hills, 75 M.J. 350, 

357 (C.A.A.F. 2016). In turn, Hills relied on United States v. Wolford to assert: “If 

instructional error is found [when] there are constitutional dimensions at play, [the 

appellant’s] claims must be tested for prejudice under the standard of harmless 

beyond a reasonable doubt.” 75 M.J. at 357 (quoting Wolford, 62 M.J. at 420 

(internal quotations omitted)). 

Just as in this case, Wolford involved forfeited constitutional error where the 

“[d]efense counsel did not object to the military judge’s instructions at the time of 

trial.” 62 M.J. at 420. However, contrary to the majority’s decision here, our 

superior court in Wolford applied the constitutional standard of prejudice and 

required the government prove the error was harmless beyond a reasonable doubt. 

Id. 

Ironically, in the case at bar the government sets its own constitutional burden 

by pointing us to both Harcrow and Sweeney. Where the majority here reads into 

what “was not” asserted or “was never asserted” by the CAAF in both Guardado and 

Williams, in Harcrow the CAAF plainly states the standard: 

Having found plain and obvious error, we turn to prejudice 

and consider whether the admission of the laboratory 

reports materially prejudiced a substantial right. Because 

this case involves constitutional error, the question is 

whether the Government has shown that the error was 

harmless beyond a reasonable doubt. 

Harcrow, 66 M.J. at 160 (citing United States v. Brewster, 61 M.J. 425 (C.A.A.F. 

2005)) (applying a prejudice analysis of whether the government proved the obvious 

constitutional error was harmless beyond a reasonable doubt to an instructional error 

the defense failed to object to at trial). If there were any doubt as to how this 

standard of plain error prejudice applies to a constitutional error, Sweeney asserts: 

Under plain error review, this Court will grant relief only 

where (1) there was error, (2) the error was plain and 

obvious, and (3) the error materially prejudiced a 

substantial right of the accused. Where, as here, the 

alleged error is constitutional, the prejudice prong is 

fulfilled where the Government cannot show that the error 

was harmless beyond a reasonable doubt. 

70 M.J. at 304. 
TOVARCHAVEZ—ARMY 20150250 

20 

The CAAF has not overturned Wolford, Harcrow, or Sweeney with respect to 

the requirement that the government prove a forfeited error of constitutional 

dimension was harmless beyond a reasonable doubt. We therefore are bound by 

them. 

 Indeed, despite the clarity the majority professes to read into CAAF’s 

purported assertion of mere harmlessness, in both Guardado and Williams the CAAF 

concludes they are not convinced the error “played no role” in each appellant’s 

convictions to particular charges. Guardado, 77 M.J. at 94-95 (“Although it is 

certainly possible that the members convicted Appellant based solely on the 

testimony of his accusers, we are not convinced that the erroneous propensity 

instruction played no role in Appellant's conviction.”); Williams, __ M.J. __, 2018 

CAAF LEXIS 365, at *9 (“First, with respect to the offense alleged in Charge I, we 

are not convinced that the erroneous propensity instruction played no role in 

Appellant's conviction.). To require an error play no role in a conviction is to 

require the error be harmless beyond a reasonable doubt. 

 As I would apply the burden that the government prove the instructional error 

was harmless beyond a reasonable doubt, I respectfully dissent and would set aside 

appellant’s convictions and authorize a rehearing. 

 FOR THE COURT: 

MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: