This opinion is subject to administrative correction before final disposition.

Before 

HOUTZ, DEERWESTER, and MYERS

Appellate Military Judges

_________________________

UNITED STATES

Appellee

v.

Jordy J. DELAFUENTE

Sergeant (E-5), U.S. Marine Corps

Appellant

No. 202100080

_________________________

Decided: 12 September 2022

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judges: 

Roger E. Mattioli (arraignment and motions)

Michael D. Zimmerman (motions)

Angela J. Tang (trial)

Sentence adjudged 10 December 2020 by a general court-martial convened at Marine Corps Base Quantico, Virginia, consisting of a military 

judge sitting alone. Sentence in the Entry of Judgment: reduction to 

E-1, confinement for 48 months,1 forfeiture of all pay and allowances,

and a dishonorable discharge.

 

1 Appellant was credited with 275 days of pre-trial confinement. 
United States v. Delafuente, NMCCA No. 202100080

Opinion of the Court

2

For Appellant:

Major Mary Claire Finnen, USMC

For Appellee: 

Lieutenant Megan E. Martino, JAGC, USN

Lieutenant Commander Jeffrey S. Marden, JAGC, USN

_________________________

This opinion does not serve as binding precedent, but 

may be cited as persuasive authority under 

NMCCA Rule of Appellate Procedure 30.2.

_________________________

PER CURIAM:

Appellant was convicted, contrary to his plea, of one specification of sexual 

assault upon Lance Corporal (E-3) Charlie2 in violation of Article 120, Uniform 

Code of Military Justice [UCMJ].3 Appellant asserts two assignments of error 

[AOEs]: (1) the evidence does not prove beyond a reasonable doubt that Appellant penetrated Lance Corporal Charlie’s vulva with his penis without her consent; and (2) in light of the evidence of Lance Corporal Charlie’s relationship 

with a witness at trial, there was reasonable doubt that Appellant penetrated 

Lance Corporal Charlie’s vulva with his penis without her consent.4 We find 

no prejudicial error and affirm.

I. BACKGROUND

Appellant, Lance Corporal Charlie’s supervisor, hosted a party at his

house, inviting Lance Corporal Charlie and a few others. At the party, alcohol 

was consumed and most guests played board and card games. Although accounts vary regarding how much alcohol Lance Corporal Charlie consumed, 

she had some amount of alcoholic seltzer, one shot of fireball whisky, and some

 

2 All names in this opinion, other than those of Appellant, the judges, and counsel, 

are pseudonyms.

3 10 U.S.C. § 920.

4 This issue is raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 

1982). We have reviewed this assignment of error and find it to be without merit. 

United States v. Matias, 25 M.J. 356, 363 (C.M.A. 1987).
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3

amount of beer. Witnesses testified that she was clearly intoxicated. As evidence, witnesses found Lance Corporal Charlie asleep, slumped on the toilet 

with her pants around her knees, arms dangling by her sides, too intoxicated 

to drive home. The decision was made to put her to bed on an air mattress in

Appellant’s home, which was set up in an alcove on the second floor. Appellant’s pregnant wife escorted Lance Corporal Charlie to the alcove, and Lance 

Corporal Charlie’s next memory was of lying on her side on an air mattress, 

with her body moving from Appellant’s penis “entering and exiting”5 her 

vagina from behind. Lance Corporal Charlie told Appellant “no” and “stop” several times, and he responded by telling her she was “fine.”6 Lance Corporal 

Charlie testified that Appellant stopped after hearing someone on the stairs. 

“He actually shoved me a little, like, off, of his penis.”7 He adjusted his belt and 

quickly went downstairs, at which point Lance Corporal Charlie heard Mrs. 

Delafuente ask Appellant, “[W]hat did you do to her?”8 Appellant responded, 

“Nothing.”9

Lance Corporal Charlie collected her belongings, left the home, and called 

Corporal Mike as she drove off base. Corporal Mike testified that when they 

met up after the phone call, she was very distraught and had tear streaks on 

both cheeks. They met at a hospital close to the base, but were told they would 

need to go to a different hospital to receive a sexual assault forensic examination [SAFE]. Corporal Mike drove Lance Corporal Charlie to another hospital,

where she received a SAFE. While undergoing the SAFE, Lance Corporal

Charlie was nauseous, vomited, and was administered an IV and anti-nausea 

medication. 

The SAFE nurse, Ms. Camp, documented Lance Corporal Charlie’s injuries 

and collected DNA, noting fresh lacerations that were the result of “blunt 

trauma.”10 The collected DNA was tested, and Appellant’s DNA, and that of 

 

5 R. at 708.

6 R. at 709.

7 R. at 711.

8 R. at 712.

9 R. at 712-713.

10 R. at 420-421, 440-441; Pros. Ex. 4 at 12.
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his paternal male relatives, could not be excluded from the DNA profile detected from Lance Corporal Charlie’s thigh and external genitalia.11 The probability of randomly selecting a male individual with the DNA profile from the 

sample found on Lance Corporal Charlie’s thigh and external genitalia from 

the U.S. population was 1 in 1,154 individuals.

II. DISCUSSION

A. Factual Sufficiency

Appellant argues before us that the evidence is insufficient to support a 

conviction for sexual assault. We review factual sufficiency de novo.12 In determining factual sufficiency, we must be convinced of an appellant’s guilt beyond 

a reasonable doubt after weighing the evidence in the record of trial and making allowances for not having observed the witnesses.13 We do not presume 

either innocence or guilt, and instead take “a fresh, impartial look at the evidence” to independently determine whether each element has been satisfied 

with proof beyond a reasonable doubt.14 Proof beyond a “[r]easonable doubt,

however, does not mean the evidence must be free from conflict.”15

To be found guilty of sexual assault, Appellant must have committed a sexual act upon Lance Corporal Charlie without her consent. A sexual act is defined as penetration, however slight, of the penis into the vulva.16 Lance Corporal Charlie testified that she was awakened in the early hours of the morning 

by Appellant penetrating her vulva with his penis. Testimony from Ms. Camp, 

the SAFE nurse who performed a physical exam on Lance Corporal Charlie 

several hours after the assault testified that there were injuries to Lance Corporal Charlie’s vulva consistent with blunt trauma. Trial counsel’s DNA ex-

 

11 The DNA collected from the thigh and external genitalia of Lance Corporal Charlie was partial F1 Y-chromosome short tandem repeat DNA.

12 Article 66(d), UCMJ; United States v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017).

13 United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).

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

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

16 10 U.S.C. § 920(g)(1).
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5

pert, Ms. India, testified that there was DNA found on Lance Corporal Charlie’s labia majora or internal upper thigh17 that was likely consistent with that 

of Appellant.

Appellant’s defense at trial was that Lance Corporal Charlie fabricated the 

allegation in order to cover up a consensual sexual relationship she had with 

Appellant. Lance Corporal Charlie had a fiancé and child at home, and Appellant argued that had her fiancé and the Marine Corps learned of her relationship with Appellant, she would be in trouble with both. Appellant also argued 

that Lance Corporal Charlie was an untruthful person, which he contended 

was corroborated by her having been found guilty at non-judicial punishment 

for four false official statements. Appellant also argued at trial that the DNA 

and SAFE evidence did not support Lance Corporal Charlie’s story. On appeal, 

Appellant again argues that Lance Corporal Charlie’s account is contradicted 

by, rather than corroborated by, the DNA and SAFE evidence, and that the 

alleged interaction, as described, is inherently unlikely and Lance Corporal

Charlie was not a credible witness. We disagree.

After taking a fresh, impartial look at the evidence, and after weighing the 

evidence in the record of trial and making allowances for not having observed 

the witnesses, we, too, are convinced of Appellant’s guilt beyond a reasonable 

doubt. 

III. CONCLUSION

After careful consideration of the record and briefs 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.18

The findings and sentence are AFFIRMED. 

 

17 Consistent with the practice in the Commonwealth of Virginia, the two swabs 

taken in this area were rolled along LCpl Charlie’s labia major and the internal upper 

thigh, making it impossible to pinpoint exactly where the DNA was located. R. at 431.

18 Articles 59 & 66, UCMJ.
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FOR THE COURT:

MARK K. JAMISON

Clerk of Court