UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

No. ACM 20080

________________________

UNITED STATES

Appellee

v.

Adam M. RODELA

Airman First Class (E-3), U.S. Air Force, Appellant

________________________

Appeal from the United States Air Force Trial Judiciary 1

Decided 21 December 20212

________________________

Military Judge: Brian C. Mason.

Sentence: Sentence adjudged on 18 August 2020 by SpCM convened at 

Joint Base Langley-Eustis, Virginia. Sentence entered by military judge 

on 10 September 2020: Confinement for 12 months, reduction to E-1, 

and a reprimand. 

For Appellant: Michael B. Hanzel, Esquire (argued); Major Jenna M. 

Arroyo, USAF.

For Appellee: Major Jessica L. Delaney, USAF (argued); Mary Ellen 

Payne, Esquire.

Before POSCH, RICHARDSON, and MEGINLEY, Appellate Military 

Judges.

Judge RICHARDSON delivered the opinion of the court, in which Senior 

Judge POSCH and Judge MEGINLEY joined. 

________________________

PUBLISHED OPINION OF THE COURT

 

1 Appellant appeals his conviction under Article 66(b)(1)(A), UCMJ, 10 U.S.C. 

§ 866(b)(1)(A), having been sentenced to more than six months’ confinement.

2 The court heard oral argument in this case on 13 July 2021.
United States v. Rodela, No. ACM 20080

2

________________________

RICHARDSON, Judge:

A special court-martial comprised of a military judge convicted Appellant, 

contrary to his plea, of one specification of abusive sexual contact in violation 

of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920.3 The 

court-martial sentenced Appellant to confinement for 12 months, reduction to 

the grade of E-1, and a reprimand. The convening authority took no action on 

the sentence, and denied Appellant’s requests for deferment of reduction in 

grade4 and waiver of automatic forfeitures.

On appeal, Appellant challenges the legal and factual sufficiency of his conviction. We specified the following issue in granting Appellant’s motion for oral 

argument:

Whether Appellant’s conviction for abusive sexual contact in violation of Article 120, UCMJ, 10 U.S.C. § 920, is legally and factually insufficient because it was reasonable for Appellant to believe the complaining witness consented to Appellant’s conduct 

by her response or lack thereof.

We answer that question in the negative. Finding no error that materially prejudiced Appellant’s substantial rights, we affirm the findings and sentence.

I. BACKGROUND

The salient facts of this case are not at issue. MS and Appellant were 

friends, having met at technical school before they both were assigned to Joint 

Base Eustis-Langley, Virginia. They became close friends, but did not have a 

sexual relationship. Appellant was engaged to another woman, with the wedding planned for mid-December 2019.

On 6 December 2019, MS and Appellant both attended a unit-sponsored

holiday party. About an hour after MS left the party, Appellant contacted her. 

She was with Airman First Class (A1C) WG at the dorms on base. Appellant

 

3 All references in this opinion to the UCMJ and the Rules for Courts-Martial are to 

the Manual for Courts-Martial, United States (2019 ed.).

4 The convening authority did not state his reasons for his denial of Appellant’s requested deferment. Appellant has not claimed prejudice, and we find none. See United 

States v. Sloan, 35 M.J. 4, 7 (C.M.A. 1992) (footnote omitted) (finding that the convening authority’s decision “must include the reasons upon which the action is based” in 

order to facilitate judicial review), overruled on other grounds by United States v. 

Dinger, 77 M.J. 447, 453 (C.A.A.F. 2018).
United States v. Rodela, No. ACM 20080

3

asked if they wanted to “hang out.” They agreed, and MS and A1C WG went to 

Appellant’s house.

A1C WG brought a bottle of rum he won at the holiday party. He served 

half a glass of rum each to MS and Appellant without a mixer or ice. Although 

MS had an upset stomach from the food at the holiday party, she drank the 

rum. She testified that after drinking the rum, she “felt really disoriented [and] 

really dizzy,” and found it “hard to walk straight” and “hard to focus.” After 

she finished the glass, she felt sick then went to Appellant’s bedroom bathroom 

to vomit in the toilet. After a bout of vomiting, she sat on Appellant’s bed. He 

asked her if she wanted to lay down. Instead, she went back to the bathroom 

and “was throwing up for a while.”

Appellant positioned himself behind MS at the toilet as she was vomiting. 

MS testified about what happened next:

I was throwing up for a while. And I remember at one point, I 

believe he was somewhere behind me. And he was like rubbing 

my back over my hoodie and so I was still like throwing up at 

this point. And so he rubbed my back for at least a minute or 

two, and then his hand ended up going under my jacket and my 

shirt to rub my back on my skin.

MS “thought nothing of it” because that was something “friends would do.” 

MS testified that Appellant moved his hand from her back to her stomach, “still 

on the skin,” and rubbed her there for about a minute. She continued, “I 

thought it was a little weird but I [was] still, you know, throwing up at the 

time, so I was kind of more focused on that.”

MS described Appellant’s next actions: “He ended up adding another hand 

and they kind of traveled up towards under my breasts, and he was kind of 

rubbing under my breasts for about a minute.” Then Appellant’s “hands moved 

to directly on my breast and [Appellant] was like massaging them.” During 

this time, MS noted, her “face was still in the toilet bowl.”

MS testified that Appellant moved his hand “down and he starting rubbing 

[MS’s] pelvic area,” specifically, the top of her genitalia where the two labia 

major meet. MS described how she felt:

I had like this bad feeling but it’s like at the same time I just --

I felt like I couldn’t do anything about it. My -- at the time my 

head was still in the toilet bowl. I know my arm was on the toilet 

bowl [and] I was using that as a headrest and I was just kind of 

[lying] there and it felt like my entire like body weight was just 

rested on the toilet. It felt like, like it was so much effort to even 

just lift my head.
United States v. Rodela, No. ACM 20080

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MS displayed no outward reaction to Appellant touching her back, stomach, breast, or vulva. MS agreed on cross-examination that she did not react 

any differently to Appellant touching her back or stomach, and that she did 

not speak or move upon Appellant touching her vulva.

MS testified she was okay with “[j]ust the back touching of course;” she did 

not state she consented to Appellant touching her stomach, breasts, or vulva.

Once or twice, after a bout of vomiting, MS noticed her sports bra was above 

her breasts and readjusted it. MS also remembered Appellant laughing and

saying, “I get so horny when I’m drunk.”

MS woke up the next morning, 7 December 2019, in Appellant’s bed, with 

Appellant “spooning” her. Later that day, MS told A1C WG that Appellant had 

assaulted her. On 8 December 2019, MS reported the incident to the local Sexual Assault Prevention and Response office, then underwent a sexual assault 

forensic examination. Later that week, agents with the Air Force Office of Special Investigations (AFOSI) interviewed her. Afterwards, MS talked to Appellant about what happened in a pretext text communication coordinated by 

AFOSI. MS and Appellant had the following exchanges:

MS: And like what do you remember

Appellant: Not a whole bunch[.] I know that’s not what you’re 

looking for which I’m sorry about but I remember hugging you 

like a lot more then [sic] I should have[. K]inda just little bits[;]

I spaced kinda hard

. . .

Appellant: But really I am sorry about invading your space like 

that

MS: Right if you wanna consider putting your hands up my shirt 

and down my pants as just “invading my space” like that’s not 

just invading my personal space that is literally putting your 

hands on me inappropriately without my consent. That’s messed 

up and that will never be okay

Appellant: that is not okay by any means

MS: Like straight up how do you just not remember that[?]

Appellant: I know this is going to sound like bull to you but I

honestly do not know what to tell you

MS: Then I’m done talking

Appellant: Okay like honestly I’m sorry for everything and not 

having more to tell you I truly am
United States v. Rodela, No. ACM 20080

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On 17 December 2019, AFOSI agents interviewed Appellant after the latter 

waived his rights under Article 31, UCMJ, 10 U.S.C. § 831. Appellant stated 

that he previously had sexual thoughts about MS, but had not intended to act 

on those thoughts. Appellant said that while they were on his bed, they “cuddled a little” and “were touchy” before MS returned to the bathroom to vomit. 

Appellant admitted to touching MS’s breast and genital area with his hand in 

his bathroom, between bouts of her vomiting in the toilet.

The AFOSI agents asked Appellant to explain how MS’s bra got raised 

above her breasts. Appellant stated he thought he “had a hand in” moving her 

bra up through their various physical interactions that evening. When asked 

whether he felt her bra move, Appellant was silent for several seconds. He then 

described pulling MS from behind by the front of her hoodie, and why he did 

so:

I pulled her back once because, like, she was like cheek and 

mouth on, like, the toilet seat like where you put your butt. And 

I’m honestly like, I know that she’s like, not in a good way but I 

also know that she doesn’t want her face where I put my butt. 

. . . She was just like resting on the bowl, but I was like, that’s 

really gross, like that was my only thought was that’s really 

gross.

Appellant claimed his intent started out “innocent.” Appellant admitted his 

thoughts turned to sexual interest in MS, and that his touching then migrated 

from MS’s stomach to her “boob” and the “outer . . . lip” of her vulva. He stated 

he “felt guilt the whole time but [the] guilt got worse,” and that guilt is why he 

stopped and did not touch her more. He stated that in addition to guilt he felt

fear, explaining, “I was scared of myself because I thought about what I was

doing and what I had done, and that also like, it’s not who I wanted to be and 

it’s not who I thought I was.”

5 Appellant repeatedly told investigators he felt 

guilty and he knew he should not have been touching MS “in that way.” As for 

why he felt guilty, Appellant did not identify his engagement to another 

woman or his now-broken friendship with MS.

In a written statement after his AFOSI interview, Appellant wrote:

I sat with her[.] I rubbed her stomach to try and comfort her[.

T]hat’s what my intention was but alcohol mixed with the strong 

connection and bond I have with her made it lead to something 

else that I never intended[,] which was me touching the lower 

 

5 Similarly, Appellant stated, “I was scared of myself because I was like, you did something.”
United States v. Rodela, No. ACM 20080

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portion of her breast and very upper portion of her lower genitalia[. B]ased on what had happened that night mixed with alcohol 

I think I got a wrong idea about everything.

He added that he “confused [their] connection and situation.” Appellant did not 

directly state in his AFOSI interview or written statement that he thought he 

had MS’s consent to touch her breast or vaginal area. Appellant’s written statement and portions of his recorded oral statement were admitted into evidence 

at trial. 

II. DISCUSSION

A. Legal and Factual Sufficiency

1. Law

We review issues of legal and factual sufficiency de novo. United States v. 

Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (citation omitted). Our assessment of legal and factual sufficiency is limited to the evidence produced at trial. 

United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993) (citations omitted). 

“The test for legal sufficiency is whether, after viewing the evidence in the 

light most favorable to the prosecution, any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt.” United 

States v. Robinson, 77 M.J. 294, 297–98 (C.A.A.F. 2018) (quoting United States 

v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017)). 

The test for factual sufficiency is “whether, after weighing the evidence in 

the record of trial and making allowances for not having personally observed 

the witnesses, [we are ourselves] convinced of the [appellant]’s guilt beyond a 

reasonable doubt.” United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). “In 

conducting this unique appellate role, 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.’” 

Wheeler, 76 M.J. at 568 (alteration in original) (quoting Washington, 57 M.J. 

at 399). 

As charged, the elements of the specification alleging abusive sexual contact in violation of Article 120, UCMJ, of which Appellant was convicted, include: (1) that Appellant committed sexual contact upon MS by touching MS’s 

breast and vulva with his hand; (2) that Appellant did so without the consent 

of MS; and (3) that Appellant did so with the intent to gratify his sexual desire. 

See Manual for Courts-Martial, United States (2019 ed.) (MCM), pt. IV, ¶¶

60.b.(4)(d), 60.e.(4)(d). “Sexual contact” includes touching another person’s 

vulva or breast with an intent to gratify the sexual desire of any person. See
United States v. Rodela, No. ACM 20080

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MCM, pt. IV, ¶ 60.a.(g)(2). “The term ‘consent’ means a freely given agreement 

to the conduct at issue by a competent person. An expression of lack of consent 

through words or conduct means there is no consent. Lack of verbal or physical 

resistance does not constitute consent.” MCM, pt. IV, ¶ 60.a.(g)(7)(A) (emphasis added). “All the surrounding circumstances are to be considered in determining whether a person gave consent.” MCM, pt. IV, ¶ 60.a.(g)(7)(C).

“[I]t is a defense to an offense that the accused held, as a result of ignorance 

or mistake, an incorrect belief of the true circumstances such that, if the circumstances were as the accused believed them, the accused would not be guilty 

of the offense.” Rule for Courts-Martial (R.C.M.) 916(j)(1). If the mistake goes 

to an element requiring general intent, it “must have existed in the mind of the 

accused and must have been reasonable under all the circumstances.” Id.

Therefore, an honest and reasonable mistake that the victim consented to the 

charged sexual contact is an affirmative defense to abusive sexual contact as 

it is to other sexual offenses. See e.g., United States v. Hibbard, 58 M.J. 71, 72

(C.A.A.F. 2003) (as a defense to a charge of rape); United States v. DiPaola, 67 

M.J. 98, 102 (C.A.A.F. 2008) (as a defense to a charge of indecent assault); 

United States v. McDonald, 78 M.J. 376, 379 (C.A.A.F. 2019) (as a defense to a 

charge of sexual assault). Once raised, the Government bears the burden to 

prove beyond a reasonable doubt that the defense does not exist. R.C.M. 

916(b)(1); see McDonald, 78 M.J. at 379. 

In considering whether the defense of mistake of fact as to consent was 

raised at trial, we “consider the totality of the circumstances at the time of the 

offense” and consider “whether the record contains some evidence of an honest 

and reasonable mistake to which the [factfinder] could have attached credit if 

they had so desired.” Hibbard, 58 M.J. at 75 (citations omitted). While the 

quantity of evidence required is low, the record must contain evidence supporting both the subjective “honest” and the objective “reasonable” mistaken belief. 

See Davis, 76 M.J. at 230 (“[W]hile [the a]ppellant’s statement may constitute 

a scintilla of evidence about his ‘honest’ belief,’ . . . there is not an iota of evidence that such a belief was reasonable.”); see also United States v. Willis, 41 

M.J. 435, 438 (C.A.A.F. 1995) (“The testimony relied on by appellant tended to 

show objective circumstances upon which a reasonable person might rely to 

infer consent. However, they provided no insight as to whether appellant actually or subjectively did infer consent based on these circumstances.”) If a mistake is honest yet “patently unreasonable,” the defense is unavailable to an 

appellant. Davis, 76 M.J. at 230.

In McDonald, the United States Court of Appeals for the Armed Forces 

(CAAF) analyzed the element of lack of consent to the offense of sexual assault 

by bodily harm in violation of Article 120(b)(1)(B), UCMJ. 78 M.J. at 377. The 

CAAF concluded:
United States v. Rodela, No. ACM 20080

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As a general intent offense, sexual assault by bodily harm has 

an implied mens rea that an accused intentionally committed 

the sexual act. No mens rea is required with regard to consent,

however.

This does not criminalize otherwise innocent conduct because

only consensual sexual intercourse is innocent. The burden is on 

the actor to obtain consent, rather than the victim to manifest a 

lack of consent. [The a]ppellant’s actions could only be considered innocent if he had formed a reasonable belief that he had 

obtained consent. The Government only needed to prove that he 

had not done so to eliminate the mistake of fact defense. 

Id. at 381 (citation omitted). Similarly, the Government need not prove an appellant intended the alleged sexual contact to be without consent. See United 

States v. Lee, No. ACM 39531 (f rev), 2020 CCA LEXIS 61, at *2122 (A.F. Ct. 

Crim. App. 26 Feb. 2020) (unpub. op.) (applying the mistake of fact as to consent analysis from McDonald to the offense of abusive sexual contact).

2. Analysis

Appellant asserts his conviction is not legally or factually sufficient because

the Government did not disprove his mistake of fact as to consent beyond a 

reasonable doubt. He asserts the Government had the burden to show Appellant believed he touched MS without consent. Appellant’s argument is essentially as follows: MS testified that she consented to Appellant rubbing her back; 

accordingly, Appellant reasonably believed he had consent to any progressive 

touching—and had a corresponding reasonable mistake of fact as to consent to 

progressive touching—unless and until MS “outwardly manifested” revocation 

of consent. For the reasons discussed below, we disagree with Appellant’s assertions.

a. Question of Consent

In his assignment of error, Appellant states the issue under review as follows:

When a complaining witness claims that he or she consented to 

certain touching but then claims he or she withdrew consent 

without outwardly manifesting the withdrawal of consent 

through words or actions or any other means, would a reasonable person (and did [Appellant]) have a mistake of fact as to consent?

(Emphasis added). Appellant suggests we answer this question in the affirmative, explaining, “Any reasonable person, who knew she was consenting to contact, would believe that consent continued unless she manifested in some way, 
United States v. Rodela, No. ACM 20080

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either physically or verbally, that she had changed her mind and was no longer 

consenting to being touched.”6(Emphasis added). We disagree with that proposed answer in this case.

We understand Appellant’s argument essentially to be that consent to arguably nonsexual contact must be extended to sexual contact when the victim 

fails to manifest a lack of consent to progressive touching.7 Appellant’s rigid 

construct fails to recognize that the specific facts of each case drive the analysis. “All the surrounding circumstances are to be considered in determining 

whether a person gave consent,” MCM, pt. IV, ¶ 60.a.(g)(7)(C), while any ignorance or mistake of fact “must have existed in the mind of the accused and 

must have been reasonable under all the circumstances,” R.C.M. 916(j)(1) (emphasis added).

The evidence does not show, nor does Appellant claim, that MS consented

to Appellant touching her breast or vulva. Therefore she could not have “withdrawn” consent that had not been given. Additionally, if actual knowledge was 

the standard for mistake of fact, as Appellant suggests, Appellant has not identified evidence indicating he actually knew at the time of the offense that MS 

consented to him touching her back.8 As Appellant correctly points out, MS’s 

outward response to Appellant touching her back and other areas was consistent: MS had no reaction. While MS testified at trial she “was okay” with 

him touching her back, there is nothing in the record indicating she said anything of the sort to Appellant. In other words, only well after the fact did Appellant gain knowledge that she consented to him touching her back. Finally, 

the record contains no evidence that MS “changed her mind” about consenting 

to Appellant’s contact.

Appellant’s framed issue and answer also presume all reasonable mistakes 

are honest. Just because the actions of the other person may “tend[ ] to show 

objective circumstances upon which a reasonable person might rely to infer 

consent,” to satisfy the “honest” prong they must provide “insight as to whether 

[the] appellant actually or subjectively did infer consent based on these circumstances.” United States v. Willis, 41 M.J. 435, 438 (C.A.A.F. 1995) (citation 

omitted). Thus Appellant’s claim that “a reasonable person . . . would believe 

 

6 Appellant asserts both that he knew what MS was thinking when it came to consenting to a back rub, but also that he did not know when she “withdrew” consent for him 

to touch her at other places on her body. We agree with Appellant insofar as he notes 

that “[t]he reasonable person is not a mind reader.” 

7 We need not reach the matter identified in Appellant’s reply brief of whether a service

member must obtain affirmative consent before each progressive act of sexual contact. 

8 We distinguish the concepts of what Appellant actually knew from what he might 

have believed, the latter of which we discuss in the context of an honest mistake.
United States v. Rodela, No. ACM 20080

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consent continued” to progressive touching is no matter if the person did not 

actually believe they had obtained consent to the initial touching. 

We decline to adopt Appellant’s interpretation of consent to progressive 

touching in this case for several reasons. First, when Appellant began rubbing

MS’s back—the contact to which MS testified she consented—his action was 

non-sexual. MS did not perceive Appellant touching her back and stomach to 

be sexual in nature; indeed, those actions are not “sexual contacts” as defined 

in the current version of Article 120, UCMJ. See MCM, pt. IV, ¶ 60.a.(g)(2).

Also, Appellant admitted he found MS resting her face on his toilet bowl “really 

gross,” which supports his statement that his initial intent was only to comfort 

MS. A rational factfinder could conclude that MS consented to Appellant’s nonsexual touching, but also conclude that such consent did not carry over to the 

sexual touching. Thus, we disagree with Appellant that the only rational conclusion is that MS’s consent to him rubbing her back carried over to subsequent 

touching of her breast and vulva. 

b. Honest Mistake?

We find no convincing evidence in the record that Appellant honestly believed MS had given her consent for him to touch her breast and vulva. Appellant asserts that we should find such belief from statements Appellant had 

given to AFOSI agents about feeling guilt. We find no support in the record for 

Appellant’s claim in his reply brief that his feelings of guilt were the result of 

him having “engaged in a consensual sexual interaction with MS, at a time 

when their inhibitions were lowered, and it was a mistake.” Appellant may 

have had reasons for feeling guilt other than committing a sexual offense upon 

MS, but those reasons are not evident in our review of the evidence produced 

at trial.

During oral argument before this court, Appellant’s counsel argued that 

because Appellant and MS were “best friends,” Appellant could read her “signals” regarding consent to sexual activity. Appellant does not, however, specify 

what action by MS comprised such a “signal” beyond a lack of reaction, or the 

foundation for Appellant’s ability to read his best friend’s sexual signals. 

Additionally, Appellant would have us infer that he believed MS was consenting because of what she could have done but did not do, including “lean 

away or resist” or “voice any objection to [Appellant’s] advances.” We decline 

to make such inference in this case, in part, because we are unconvinced MS 

was able to manifest resistance to Appellant’s actions. MS’s thoughts were distracted by her vomiting, and she felt “it was so much effort to even just lift 

[her] head” from the toilet bowl. We are similarly unpersuaded by Appellant’s 

claim during oral argument that MS’s “manifestation [of consent] was [that 

she had] not respond[ed] in a negative way.” MS “not responding in a negative 
United States v. Rodela, No. ACM 20080

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way” or, to use a phrase in Article 120, UCMJ, 10 U.S.C. § 920(g)(7)(A), her 

“lack of verbal or physical resistance” does not constitute consent, and we will 

not infer from it alone that Appellant honestly believed he obtained MS’s consent. See also MCM, pt. IV, ¶ 60.a.(g)(7)(A).

While not raised by Appellant on appeal, we also consider whether Appellant’s pretrial statements to MS and AFOSI agents demonstrated an honest 

but mistaken belief that MS consented. Appellant said in his AFOSI interview 

that he knew what he was doing was wrong. Appellant repeatedly stated he 

felt guilt the whole time, and that guilt is why he did not “go higher” on her 

breast and why he only touched her “vagina” “lightly” and with “one finger.”9

In a written statement Appellant made after that interview, Appellant explained, “I think I got a wrong idea about everything,” and, “I confused our 

connection and situation.” But the record does not reveal what Appellant may 

have been wrong or confused about—perhaps it was whether MS consented to 

touching, or perhaps it was whether the law permitted him to touch his friend 

when she was unresponsive to his advances.

Although we are not convinced the record contains sufficient evidence to 

support the “honest” prong of the defense, we allow that a rational factfinder 

could attach credit to Appellant’s statements if the factfinder so desired. See

Hibbard, 58 M.J. at 7577 (focusing on the “reasonable mistake prong,” and 

finding the appellant’s statement that “at least this was consensual” to be a 

“cursory parting remark” and, under the circumstances, insufficient to support 

a reasonable mistake). Therefore, we will review whether any arguably “honest” mistake would have been reasonable under the circumstances.

c. Reasonable Mistake?

Appellant asserts his conviction for abusive sexual contact is legally and 

factually insufficient because his mistake of fact as to consent was reasonable 

in the absence of the victim manifesting a lack of consent to any of his touches.

After summarizing two of this court’s unpublished opinions and United States 

v. Prasad, 80 M.J. 23 (C.A.A.F. 2020), Appellant concludes, “If [that lack of 

consent] was not manifested clearly enough for a reasonable person to understand . . . there was a reasonable mistake of fact.”

This position demonstrates a misunderstanding of the law. Just as a victim’s “lack of verbal or physical resistance does not constitute consent,” MCM, 

pt. IV, ¶ 60.a.(g)(7)(A), a victim’s lack of verbal or physical resistance, without 

more, is not some evidence of a reasonable belief that consent has been obtained (or given). In both unpublished opinions Appellant cites, evidence that

 

9 Appellant denied touching MS’s “vagina” in his initial statements to the agents.
United States v. Rodela, No. ACM 20080

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the victim manifested a lack of consent strengthened—but was not a prerequisite to—the conclusion that the appellant lacked an honest and reasonable mistake of fact as to consent. See United States v. Brunson, No. ACM 39698, 2020 

CCA LEXIS 436, at *13–17 (A.F. Ct. Crim. App. 2 Dec. 2020) (unpub. op.);

United States v. Crump, No. ACM 39628, 2020 CCA LEXIS 405, at *43–46

(A.F. Ct. Crim. App. 10 Nov. 2020) (unpub. op.), rev. denied, 81 M.J. 177 

(C.A.A.F. 2021). In Prasad, 80 M.J. at 31, the appellant told the complainant 

he “thought [she was] being playful” and the complainant stated that once the 

appellant realized she was not consenting, he stopped. In the present case, 

however, it would be “patently unreasonable,” Davis, 76 M.J. at 230, for Appellant to believe that MS consented to him touching her breast and vulva; the 

evidence indicates that MS merely endured Appellant touching her body while 

she vomited at his toilet, and did not manifest consent or a lack of consent to 

any of his touches. Id.

d. Conclusion

A rational factfinder could have found all the essential elements of Appellant’s convicted offense beyond a reasonable doubt, and further, could have 

found beyond a reasonable doubt that Appellant did not have a mistake of fact 

as to consent. Even if Appellant had an honest belief that MS consented to the 

sexual contacts, the Government provided overwhelming evidence that such a 

belief would have been unreasonable under the circumstances. Furthermore, 

in assessing factual sufficiency, after weighing all the evidence in the record of 

trial and having made allowances for not having personally observed the witnesses, we are convinced of Appellant’s guilt beyond a reasonable doubt. Therefore, we find Appellant’s conviction both legally and factually sufficient. 

III. CONCLUSION

The findings and sentence entered are correct in law and fact, and no error 

materially prejudicial to the substantial rights of Appellant occurred. Articles 

59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the findings 

and sentence are AFFIRMED.

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court