## U NITED 

## S TATES 

## A IR 

## F ORCE 

## C OURT OF 

## C RIMINAL 

## A PPEALS

_______ _______ __________

No. ACM 38875 (reh )

________________________

UNITED STATES Appellee

v. Corey J. CAMPBELL Staff Sergeant (E

- 5 ) , U.S. Air Force, Appellant

________________________ Appeal from the United States Air Force Trial Judiciary

Decided 10 February 2021

_______ _______ __________ Military Judge: Rebecca E. Schmidt (arraignment); Jennifer E. Powell

. Approved sentence: Dishonor a ble discharge, confinement for 4 years, forfeiture of all pay and allowances, and r eduction to E

- 1. Sentence adjudged 9 March
2019 by GCM convened at Wright

- Patterson Air Force Base, Ohio

. For Appellant: Major Benjamin H. DeYoung , USAF ; Robert Feldmeier, Esquire

. For Appellee: M ajor Jessica L. Delaney , USAF; Mary Ellen Payne , Esquire

. Before J. JOHNSON

, MINK , and LEW IS

, Appellate Military Judges

. Chief Judge J. JOHNSON delivered the opinion of the c ourt, in which Senior Judge MINK and Senior Judge LEWIS joined

.

_______ _______ __________

This is an unpublished opinion and, as such, does not serve as precedent under AFCCA R ule of Practice and Procedure 30.4.

_______ _______ __________

J. JOHNSON , Chief Judge:

Appellant’s case is before this court for the fourth time. At Appellant’s original trial in May 2015, a general court

- martial composed of a military judge
alone convicted Appellant, contrary to his pleas, of one specification of sexual
assault in violation of Article 120(b)(1)(B), Uniform Code of Military Jus ticeUnited States v. Campbell , No. ACM 38875 (reh)

2 (UCMJ), 10 U.S.C. § 920(b)(1)(B) ; two specifications of abusive sexua l contact in violation of Article 120(d), UCMJ, 10 U.S.C. § 920(d) ; one specification of adultery in vio lation of Arti cle 134, U CMJ, 10 U.S.C. § 934; and one spe cification of wrongfully provid ing alcohol to a minor, also in violation of Article 134, UCMJ, 10 U.S.C. § 934. 1 The military judge sentenced Appellant to a dishonorable discharge, confinement for 5 5 months, forfeiture of a ll pay and allowances, and re duction to the grade of E

- 1. The conveni ng authority deferred the
reduc tion in grade and the adjudged and manda tory forfeitures until action, at
which time he disa pproved the ad judged forfeitures and waived mandatory forfeiture s for the benefit of Appellant’ s spouse and dependent children

, but otherwise he approved the sentence.
In Appellant’s initial appeal to this court, we affirmed the findings and sentence. United States v. Campbell , No. ACM 38875, 2017 CCA LEXIS 153 (A.F.
C t. Crim. App. 28 Feb. 2017)

, rev’d , 76 M.J. 440 (C.A.A.F. 2017) (unpub. op.)

. The Unit ed States Court of Appeals for the Armed Forces (CAAF) granted review , set aside our decision, and remanded the case to this court for further consideration in light of U nited States v. Hukill , 76 M.J. 219 (C.A.A.F. 2017). United States v. Campbell , 76 M .J. 440 (C.A.A.F. 2017) (mem.)

. On remand, this court again affirmed the findings and sentence. United States v. Campbell , No. ACM 38875, 2017 CCA LEXIS 754 (13 Dec. 2017),
rev’d , 77 M.J. 366 (C.A.A.F. 2018) (unpub. op.). The CAAF again granted review; on 18 April 2018 it set aside the findings of guilty with respect to thespecification of sexual assault and the two specifications of abusive sexual contact, affirmed the convictions for adultery and wrongfully providing alcohol to a minor, and set aside the sentence. Un ited States v. Campbell , 77 M.J. 366 (C.A.A.F. 2018) (mem.). The CAAF returned the record to The Judge Advocate
G eneral for remand to this court and stated this court “may order a rehearing”
as to the set

- aside findings of guilty and the sentence. Id

. The record was returned to this court on 1 May 2018. On 12 July 2018, this
court issued an order returning the record to The Judge Advocate General forremand to the convening authority and authorized a rehearing as to the specifications of sexual assault and abusive sexual contact and the sentence.

The record was delivered to the convening authority on 18 July 2018. On 20 September 2018, t he convening authority referred the sexual assault and

1 Unless otherwise indicated, all references to the punitive articles of the UCMJ are to
the Manual for Courts

- Martial, United States (2012 ed.) , and a ll other re ferences to the UCMJ and to Rules for Co urts

- Martial and Military Rules of Evidence are to the Manual for Courts

- Martial

, United States (2016 ed.).United States v. Campbell , No. ACM 38875 (reh)

3 abusive sexual contact specifications to a general court

- martial “ for a rehearing and a rehearing on the sentence.” 2 Appellant was arraigned on 5 November 2018 and tried by a general court

- martial composed of officer and enlisted
members on 4

– 9 March 2019. The court

- martial found Appellant not guilty of the two specifica tions of abusive sexual contact but guilty of the specification
of sexual assault. The court

- martial sentenced Appellant to a dishonorable discharge, confinement for four years, forfeiture of all pay and allowances, and reduction to the grade of E

- 1. The c onvening authority disapproved the adjudged forfeitures and approved the remaining elements of the sentence.

Before this court once more, Appellant raises seven issues on appeal: (1) whether the military judge erred in the amount of credit she awarded Appe llant for unlawful pretrial punishment; (2) whether a defective referral deprived this court of jurisdiction because the convening did not set aside the sentence before ordering a rehearing ; (3) whether the evidence is factually insufficient to sustain his conviction for sexual assault; (4) whether the military judge erred in failing to sever the charges; (5) whether the approved sentence in this case violates Article 63, UCMJ, 10 U.S.C. § 863; 3 (6) whether the military judge erred in instructing the court members as to incapacity to consent, an uncharged theory of liability; and (7) whether the military judge erred when

2 The convening authority did not explicitly refer the previously affirmed specifications of adultery and wrongfully providing alcohol to a minor. At the subsequent trial, the military judge ruled that these specifications had not been referred and were not before
the court

- martial for purposes of determining a sentence. The convening authority’s General Court

- Martial Order No. 5

, dated 23 July 2019

, states that a reh earing on these two charges and specifications “was found to be impracticable and a sentence of no punishment was ordered for those charges and specifications in General Court Martial Order No. 1, this headquarters, dated 1 May 19.” General Court Martial O rder No. 1 is not included with the record of trial for the court

- martial under review. As Appellant has asserted neither error nor prejudice arising from the 1 May 20 19 order, and we perceive no prejudice to Appellant, we do not address it further in our review of the findings and sentence adjudged at the rehearing.

3 Article 63, UCMJ, 10 U.S.C. § 863, provides in pertinent part:

Upon a rehearing .

. . no sentence in excess of or more severe than the original sentence may be approved, unless the sentence is based upon a finding of guilty of an offense not considered upon the merits in the original proceedings, or .

. . the sentence prescribed for the offense is mandatory.United States v. Campbell , No. ACM 38875 (reh)

4she refused to admit opinion evidence that the victim was attracted to Appellant. 4 In addition, although not raised by Appellant, we consid er whether he is entitled to relief for facially unreasonable post

- trial delay. We have carefully
considered issues (2), (5)

, and (7), and we find they warrant neither further
discussion nor relief. See United States v. Matias , 25 M.J. 356, 361 (C.M.A.
198 7). As to the remaining issues, w e find no error that materially prejudiced Appellant’s substantial rights, and we affirm the findings and sentence.

I. B ACKGROUND
In the summer of 2014, Appell ant was an Air Force recruiter assigned to a squadron in Cincinnati, Ohio. He lived with his wife at the time 5 and their two young children. Appellant’s wife was originally from the Cincinnati area, and her younger sister MH lived in a nearby town. Appellant and his sister

- in

- law
MH had known each o ther since M H was in the fourth grade. However, as MH
became older she perceived that Appellant would act “creepy” toward her when he drank alcohol, so she and her friends began to avoid him on those occasions.

One night in the summer of 2014, Appellant we nt to a bar in Cincinnati as part of a group that included his wife, his wife’s sister MH, and MH’s friend AM, among others. AM was 15 or 16 years old at the time ; MH was 16 or 17 years old

. According to AM’s testimony at Appellant’s trial, Appellant and h is wife provided five or six alcoholic drinks to AM that night and she became “veryintoxicated.” According to AM, on multiple occasions that night Appellant approached AM, made flirtatious comments to her, and touched her upper thigh. When the group was l eaving the bar for the night, Appellant was walking behind AM when he grabbed her buttocks with his hand. AM ran forward and told MH that Appellant had “grabbed [her] butt,” to which MH responded “tell him to stop.” AM further testified that when the group got into Appellant’s van to depart, Appellant was seated in the second row. When AM entered the van to climb past him to get to an empty seat in the back row, Appellant pulled AM onto his lap and rubbed her thighs over her dress. MH observed Appellant pul l AM onto his lap. According to AM, she did not consent to any of this physical contact by Appellant, but she did not initially report his behavior to anyone
other than MH. The rehearing court

- martial found Appellant not guilty of two specifications of com m itting abusive sexual contact on AM

.

4 Appellant personally asserts issue (7) pursuant to United States v. Grostefon , 12 M .J. 431 (C.M.A. 1982).

5 Appellant and his wife divorced prior to Appellant’s rehearing.United States v. Campbell , No. ACM 38875 (reh)

5 O n 24 October 2014, Appellant, his wife, his wife’s sister MH, and MH’s friend KC attended a costume party at the home of one of Appellant’s friends. 6
MH and KC were both 17 years old at the time. MH and KC spent most of the evening together. Appellant provided MH with alcohol during the party
, and she became intoxicated. According to MH’s testimony at the rehearing , eventually KC la id down on a bed in a spare bedroom to sleep. MH’s sister (Appellan t’s wife) told MH she should also go to sleep, so MH went into the bedroom to sleep next to KC. MH testified Appellant went into the room with her , spoke
with h er, and put his hand on her thigh while she took off her shoes. MH pushed Appellant’s hand away, after which Appellant turned off the light and closed the door. MH fell asleep next to KC.

MH testified that when she awoke, she found she was on her back and Appellant was on top of her. Appellant had pushed up her skirt and was thrusting
back and forth with his penis penetrating her vagina. MH initially “thought it was a nightmare,” and moved her head from side to side in an attempt to“wake” herself. At one point Appellant tried to kiss MH as he continued thrusting, and MH again shook her head. When App ellant finished and got up, MH curled into a ball on the bed and began crying. MH testified that KC then got up and began “screaming” at Appellant that he had “just raped” MH. Appellant argued with KC , claiming that MH had been awake. It seemed to MH that KC shoved Appellant out of the room and closed the door.

KC also testified at Appellant’s rehearing trial. She estimated that she and MH spent three or four hours at the party drinking alcohol and playing party games. KC observed that MH became intoxicated to the point that “she could hardly stand. ” Eventually, KC “felt like [she ] had enough,” and she went to lay down in the spare bedroom. She woke up when MH and Appellant entered the room; Appellant was trying to get MH to go to sleep, although MH did not want

to. Eventually MH lay down next to KC. KC testified that the lights were out, but Appellant did not leave. KC was l y ing on the bed facing away from MH, so she could not see what was happening. However, she could feel the bed move,
and she could hear A ppellant’s vo ice calling MH by her nickname, asking MH “is this okay” and “if she liked it,” and saying “You are wild, [M].” 7 MH did not respond, but was “whimpering.” KC did not move or say anything during the
assault because she was “in shock” and “reall y scared.” However, when Appellant got up and put his pants back on, KC “jumped” from the bed, began screaming at Appellant that he had “raped” MH, and pushed Appellant out of the room. MH was crying on the bed. After KC pushed Appellant from the

6 KC subsequently married and changed her last name . We refer to her by her initials at the time of the offense.

7 Appellant addressed MH by her nickname.United States v. Campbell , No. ACM 38875 (reh)

6 room, App ellant began knocking on the door and asking “what happened? ” At some point Appellant left

, and KC found the owner of the house and told him
what had occurred

.Other witnesses provided conflicting testimony regarding Appellant’s behavior immediately after the sexual assault. ST, a friend of Appellant’s, testified that he was in a bathroom when he heard Appellant knocking on the bedroom door, asking in a “very cal m” tone, “is everything okay ? ” and “can you let me in?” In contrast, BS saw Appellant come out of the bedroom where MH had been sleeping, and then Appellant “started pounding on the door to be let back in.” BS testified Appellant seemed “pretty frantic” an d was “screaming, ‘quit it, [M], I did not touch you.’” However, there was general agreement among these two witnesses and others that Appe llant drove away in the family van shortly thereafter , leaving his wife, MH, and KC behind.

MH was taken to a hospit al where she underwent a sex ual assault forensic

exam

. Her pelvic exam indicated redness and swelling on her cervix and a “clear white fluid” in her vagina. Subsequent forensic analysis indicated the presence of semen and a DNA profile consistent with Appe llant’s. Relying on forensic testing and reverse extrapolation of a blood sample taken from MH at the hospital, at Appellant’s trial a forensic toxicologist estimated that MH’s
blood alcohol content around the time of the sexual assault was between 0.111

a nd 0.156 “ grams percent. ” 8

The rehearing court

- martial found Appellant guilty of sexual ly assaulting MH by causing bodily harm , specifically penetrating her vulva with his penis
without her consent.

II. D ISCUSSION

A. Unlawful Pretrial Punishment Credit

1. Additional Background

On 9 November 2018 , the Defense submitted a motion to dismis s the pending charges because Appellant “has been unlawfully subject to conditions ofparole constituting both restriction and unlawful pretrial punishment pursuant to Rule for Courts

- Martial ( R.C.M. ) 707 or Article 13, UCMJ, [10 U.S.C. § 813,] and for a period of time excessive under United States v. Moreno , [ 63 M.J. 129, 142 (C.A.A.F. 2006) ,] and other case law.” At the time the CAAF set aside Appellant’s Article 120, UCMJ, convictions on 18 April 2018, Appellant had

8 We underst and “grams percent” to be a reference to the measurement of grams of alcohol per 100 milliliters of blood.United States v. Campbell , No. ACM 38875 (reh)

7 been release d from confinement but was on supervised release (parole) pursuant to the 55

- month term of confinement imposed on 21 May 2015 at his original court

- martial. The defense motion explained that the term s of Appellant’s parole imposed substant ial restrictions on his liberty and other interests, including inter alia mandatory polygraph examinations and non

- confidential sex offender treatment. Appellant had not been released from his parole as of the filing of the Defense’s motion on 9 November 2018. The Defense contended Appellant was entitled to relief under Article 13, UCMJ, because his continuedparole after the CAAF set aside his Article 120, UCMJ, convictions and sentence constituted unlawful pretrial punishment; that pursuant to R.C.M. 707 the military judge shoul d dismiss the charges because Appellant had been subjected to pretrial restriction for more than 120 days; and that pursuant to
Moreno the delay in returning the record from this court to the convening authority following the CAAF’s remand was excessive. The Government opposed
the motion

, and in particular contended that dismissal of the charges was not
warranted.

On 28 November 2018, the military judge conducted a hearing on the motion and rec eived argument from counsel. On 30 November 2018, the convening authority ordered Appellant’s release from confinement and parole pending his rehearing.

When the court

- martial reconvened on 4 March 2019, the military judge explained that she denied the mo tion to dismiss. However, she deferred rulingon the Defense’s alternative request for other appropriate relief until sentencing, if any.

After the court

- martial found Appellant guilty of sexual assault, the military judge readdressed the Defense’s motion . In an oral ruling that she subsequently supplemented in writing, the military judge found no violation of
R.C.M. 707 or of due process under Moreno . However, she found the Government’s inaction in removing Appellant’s parole status from the time this court returned the record to The Judge Advocate General on 12 July 2018 until 30 November 2018 was “arbitrary” and raised an inference of punishment thatnecessitated relief under Article 13, UCMJ. Accordingly, she ordered that Appellan t be granted “one day credit for each day [he] was under parole supervision” from 12 July 2018 until the convening authority released Appellant on 30 November 2018, a total of 141 days.

2. Law

“[W] hether [an] appellant is entitled to credit for a violation o f Article 13 [, UCMJ,] is a mixed question of fact and law. ” United States v. Mosby , 56 M.J. 309, 310 (C.A.A.F. 2002) (citations omitted)

. We defer to a military judge’s findings of fact unless they are clearly errone ous, whereas we consider de novoUnited States v. Campbell , No. ACM 38875 (reh)

8 whether the facts entitle the a ppellant to addi tional credit against his sentence. United States v. Williams , 68 M.J. 252, 256 (C.A.A.F. 2010) (citations omitted)

. “ The burden is on [the] appellant to establish entitlement to additional sentence credit because of a violation of Article 13 [, UCMJ]

. ” Mosby , 56 M.J. at 310 (citing R.C.M. 905(c)(2)).

“Article 13, UCMJ, prohibits two things: (1) the imposition of punishment prior to trial, and (2) conditions of arrest or pretrial confi nement that are more rig orous than necessary to ensure the accused’s presence for trial.” United States v. King , 61 M.J. 225, 227 (C.A.A.F. 2005).

Article 67(e), UCMJ, 10 U.S.C. § 867(e), provides in part:

After [the CAAF] has acted on a case, [it] may direct the Judge
Advocate General to return the record to the Court of Criminal Appeals for further review in accordance with the decision of thecourt. Otherwise, unless there is to be further action by the President or the Secretary concerned, the Judge Advocate General
shall instruct the convening authority to take action in accordance with that decision.

. . . A decision of a Court of Criminal Appea ls ceases to be inchoate when the
record is returned to the convening authority. See United States v. Rodriguez

, No. ACM 38519 (reh), 2019 CCA LEXIS 35, at *16

– 17 (A.F. Ct. Crim. App. 30 Jan. 2019) (unpub. op.); United States v. Mancini , No. ACM 38783 (reh), 2018 CCA LEXIS 495, at * 10 (A.F. Ct. Crim. App. 16 Oct. 2018) (unpub. op.).

3. Analysis

Appellant contends the military judge erred by exclud ing the period from 18 May 2018 ( the date upon which he asserts the CAAF’s decision setting aside his Article 120, UCMJ, convictions and sentence became final ) 9 until 12 July
2018 (when this court returned the record to The Judge Advocate General for

reman d to the convening authority) from her award of day

- for

- day confinementcredit for illegal pretrial punishment in violation of Article 13, UCMJ. Appellant cites United States v. Miller , 47 M.J. 352, 361

– 62 (C.A.A.F. 1997), for the proposition that the Cour ts of Criminal Appeals and command authorities are

9 Appellant appears to base his reference to 18 May 2018 on an assumption that the period for the parties to request reconsideration of the CAAF’s 1 8 April 2018 decision was 30 days. The Government does not challenge the accuracy of this assertion. As noted in the procedural history above, the record was returned to this court from the CAAF on 1 May 2018. We do not resolve the accuracy of Appellant’s assertion regarding the finality of the CAAF’s decision as it is unnecessary to our resolution of the
issue.United States v. Campbell , No. ACM 38875 (reh)

9 required to effect the “ immediate cessation of punishment ” after a CAAF mandate sets aside a sentence. We find no error.

Appellant’s reliance on Miller is misplaced. Among other significant differences wit h Appellant’s case, Miller did not address a situation in which the CAAF remanded the record to a Court of Criminal Appeals for further action by the lower court. In fact, it did not address the effect of a CAAF opinion at all, other than to note that the CAAF’s opinions, like those of the Courts of Criminal Appeals, are not “self

- executing,” and that the appellate courts “depend[ ] on the Judge Advocate General and lower officials to execute [their]
orders.” Id . at 361 ( citations omitted).

Appellant ’s argument suggests that after the CAAF directed that the case be returned to this court, our role was purely ministerial. It was not. Once the CAAF decided to set aside the Article 120, UCMJ, findings and the sentence,
in th e absence of a request for reconsideration or further action by the President or Secretary, Article 67(e), UCMJ, provided the CAAF two options as to how to proceed. The CAAF might have elected to return the record to The Judge Advocate General to instruct “ the convening authority to tak e action in accordance with [its] decision .” 10 U.S.C. § 867(e). The CAAF elected not to do this. Instead, it directed The Judge Advocate General to remand the record to
this court for furth er review in accordance with the CA AF’s decision, and further directed this court “ may order a rehearing” on the set

- aside findings and
the sentence. Campbell , 77 M.J. at 366 (emphasis added); see 10 U.S.C. § 867(e) . Of course, in conducting our review, this court was bound by the CAAF’s
de cision; but both the text of Article 67(e), UCMJ, and the CAAF’s opinion indicate this court was to review the case once more and exercise discretion in how to proceed. In short, the matter was still under appellate review and had
not been returned to the convening authority for action. We conclude the military judge did not err in finding Appellant was not entitled to relief under Article 13, UCMJ, prior to this court’s 12 July 2018 order returning the record to The Judge Advocate General for remand to the convening authority.

Appellant argues in the alternative that he is entitled to additional Article 13, UCMJ, credit d ue to unreasonable “nearly 100

- day” appellate delay in returning the record to the convening authority following the CAAF’s 18 April
2018 decision . Appellant’s argument is without merit. As described above, the
CAAF returned the record to this court for further substantive review in accordance with its decision . The record was returned to The Judge Advocate General and received by this court on 1 May 2018 . According to the Joint Courts of Criminal Appeals Rules of Practice and Procedure in effect at the time, “Any brief for an accused shall be filed within 60 days after appellate counsel has been notified of the receipt of the record in the Office of the Judge
Advocate General.” J T

. C T

. C RIM

. A PP

. R. 15(b) (2017). Accordingly, the time forUnited States v. Campbell , No. ACM 38875 (reh)

10 any supplemental fili ngs by Appellant did not expire until 30 June 2018. Cf.
United States v. Muller , 79 M.J. 359, 361 (C.A.A.F. 2020) (per curiam) (holdingCourt of Criminal Appeals rule that contradicted Joint Courts of Criminal Appeals Rule 15(b) was invalid). After no brie f was submitted by Appellant, t his court completed its review and issued its order authorizing a rehearing and returning the record to the convening authority within two weeks thereafter. We find no inappropriate appellate delay that warrants relief.

B. Factu al Sufficiency

1. Law

We review issues of factual sufficiency de novo. United States v. Washington , 57 M.J. 394, 399 (C.A.A.F. 2002) (citation omitted). Our assessment of factual sufficiency is limited to the evidence produced at tri al. United States v. Dykes , 38 M.J. 270, 272 (C.M.A. 1993) (citations omitted).

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] 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 de termination as to whether the evidence constit utes proof of each required ele ment beyond a reasonable doubt.’” United States
v. Wheeler , 76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (alteration in original) (quoting Washington , 57 M.J. at 399), aff’d , 77 M.J. 289 (C.A. A.F. 2018) . T he evidence need not be “free from conflict” in order to be convincing beyond a

re asonable doubt. Id

. (quoting United States v. Lips , 22 M.J. 679, 684 (A.F.C.M.R. 1986)).

In order to convict Appellant of the charged sexual assault in violation of Article 120, UCMJ, the Government was required to prove beyond a reas ona ble doubt: (1) that within the state of Ohio, between on or about 24 October 2014 and on or about 25 October 2014, Appellan t committed a sexual act upon MH by penetrating her vulva with his penis; and (2) that Appellant did so by causing bod ily harm, to wit: penetrating MH ’s vulva with his penis without her

consent. See Manual for Courts

- Martial, United States (2012 ed.) ( MCM ) , pt

. IV, ¶ 45.a

. (b)(1)(B ) , (g)(1), (g)(3)

. The defense o f mistake of fact as to consent would apply if Appellant, be

cause of ignorance or mista ke, incorrectly believed that MH consented to the
sexual act. See R.C.M. 916(j)(1). In order to rely on a mistake of fact as to a consent defense, Appellant’s belief mu st have been reasonable under all the
circumstances. See id .; see generally United States v. Jones , 49 M.J. 85, 91United States v. Campbell , No. ACM 38875 (reh)

11 (C.A.A.F. 1998) (citation omitted ). Once raised, the Government bears t he burden to prove beyond a rea sonable doubt that the defense does not exist. R.C.M. 916(b)(1); see United States v. McDonald , 78 M.J. 376, 379 (C.A.A.F. 2019).

2. Analysis

The Government introduced convincing evidence of Appellant’s guilt. The testimony of MH established that she was sleeping next to her friend KC when Appella nt pushed up her skirt and penetrated her vulva with his penis. At no point did she consent. Instead, MH was initially confused and turned her head
from side to side in an effort to “ wake up. ” When Appellant attempted to kiss her, she again shook her head. As soon as Appellant finished, MH curled into a ball and began to cry.

KC’s testimony substantially corroborated MH’s testimony. She heard Appellant come into the bedroom with MH. She heard h is voice and felt the bed shake as he sexually assaulted MH. Although Appellant seemed to be speaking to MH during the assault, MH never responded but only “whimpered.” When Appellant got off of MH, MH began to cry.

Forensic evidence also powerfully corro borated MH’s testimony. Appellant’s sperm was found in MH’s vagina. The sexual assault nurse examiner found redness and swelling on MH’s cervix. Blood alcohol testing confirmed that MH was significantly intoxicated at the time of the assault, consistent
wi th the testimony of KC and MH herself, which may have contributed to MH’s
confused reaction when she awoke.

In addition, we find the t estimony regarding Appellant’s behavior im mediately after the assault probative . KC testified that after she pushed him ou t of the room, he began knocking on the door and asking “what happened,” as if he had not been present for whatever had occurred inside the room . Similarly, BS saw Appellant exit the bedroom and then begin pounding on the door to be let
in. BS also heard A ppellant “scream” that he “did not touch” MH. ST’s testimony that Appellant was speaking in a “calm” voice asking “is everything okay” was superficially more favora ble to Appellant. However, we find his testimony less reliable because of his long associati on with Appellant, the fact
that he did not o bserve Appellant exit the bed room or directl y observe him
outside the door , and in light of the other evidence of the surrounding circumstances . Moreover, all of the witnesses including ST agreed Appellant drove away in the van shortly thereafter, leaving behind Appellant’s wife as well as MH and KC; the owner of the house described hearing the van’s “ tires peeling out and burning down the street .” We find Appellant’s dissembling behavior
and abrupt departure sug gestive of his consciousness of guilt.

On appeal, Appellant contends that his sexual encounter with MH, “while distasteful,” was consensual. We are not persuaded. Appellant emphasizesUnited States v. Campbell , No. ACM 38875 (reh)

12 KC’s testimony that he spoke to MH during the sexual act, but there is n o evidence MH affirmatively responded to Appellant or consented in any way. Appellant suggests KC would have intervened sooner if she truly believed MH
was be ing sexually assaulted, but we find KC’s explanation credible

— that she initially lay still because she was shocked and afraid. Appellant asserts purported discrepancies in the testimony among witnesses at the rehearing, and
also asserts discrepancies in the testimony of the same witness at the original trial and the rehearing, but we find his specific claims largely unconvincing as
well as peripheral to the essential issues. Similarly, we find Appellant’s claims that MH had a strong motive to falsely claim sexual assault rather than admit she had betrayed her sister, and that MH suspiciously deleted Fac ebook messages about the sexual assault, to be simply unpersuasive in light of the evidence adduced by the Government.

Accordingly, having weighed the evidence in the record of trial and having
made al lowances for not having personally observed the witnes ses, we are convinced of Appellant’s g uilt beyond a reasonable doubt.

C. Severance

1. Additional Background

After arraignment but before Appellant’s trial, the Defense moved to sever the sexual assault charge and specification from the abusive sexual contact
cha rge and specifications. The Government opposed the motion.

After conducting a hearing and receiving argument from counsel, the military judge denied the motion to sever. In a written ruling she anal yzed the
three factors identified in United States v. Curt is , 44 M.J. 106, 128 (C.A.A.F. 1996)

, rev’d as to sentence on recon
, 46 M.J. 129 (C.A.A.F. 1997), as articulated
in United States v. Southworth

, 50 M.J. 74, 76 (C.A.A.F. 1999): “ (1) whether the evidence of one offense would be admissible proof of the other ; (2) whether the military judge has provided a proper limiting instruction; and (3) whether the findings reflect an impermissible crossover. ” The military judge found thatalthough the Government conceded the first factor favored severance, the remaining factors weighed against it. Accordingly, she found the Defense had not
met its burden to demonstrate severance was necessary to avoid a “manifest injustice.” R.C.M. 906(b)(10). However, the military judge further stated “[a]s part of this ruling, the Government is additionally directed to frame its opening statement, closing argument and witness examinations so as to maintain [the]separation” between the sexual assault specification and abusive sexual contact specifications.

When instructing the court members with respect to findings, the military judge advised, inter alia :United States v. Campbell , No. ACM 38875 (reh)

13 An accused may be convicted based only on the e vidence before
the Court and not evidence of a general criminal disposition. Each offense must stand on its own and you must keep the evidence of each offense separate. Stated differently, if you find or
believe that the accused is guilty of one offense, you may not use the finding or belief as a basis for inferring, assuming, or proving that he committed any other offense.

If evidence has been presented which is relevant to more than one offense, you may consider that evidence with respect to each
offense to which i t is relevant. For example, if a person werecharged with stealing a knife and later using that knife to commit another of fense, evidence concerning the knife, such as that the person being in possession of it, or that person’s fingerprintsbeing found on it, could be considered with regards to both offenses. But the fact that the person’s guilt of stealing the knife may have been proven, is not evidence that the person is also guilty of any other offense.

The burden is on the prosecution to prove each and every element of each offense beyond a reasonable doubt. Proof of one offense carries with it no inference that the accuse d is guilty of any other offense.

2. Law

We review a military judge’s ruling on a motion to sever for an abuse of
discretion. United States v. Giles , 59 M.J. 374, 378 (C.A.A.F. 2004) (citation omitted) . “A military judge a buses [her] discretion when [her] fin dings of fact are clearly erroneous, when [s he ] is incorrect about the applicable law, or when [s he ] improper ly applies the law.” United States v. Roberts , 59 M.J. 323, 326 (C.A.A.F. 2004).

“ Under R.C.M. 906(b)(10), a military judge is required to grant a severance

mo tion when necessary to avoid a ‘manifest injustice.’” Giles , 59 M.J. at 378. On appeal

, “ the appellant must demonstrate more than the fact that separate trials would have provided a bett er opportunity for an acquittal;” he must
demonstrate “ the ruling caused actual prejudice by preventing the appellant from receiving a fair trial. ” Id

. (citations omitted). Appellate courts review such rulings by applying the same factors employed by the military judge : “ (1) Do the findings reveal an imper missibl e crossover of evidence? (2) Would the evidence of one offense be admissible proof of the other? (3) Did the military judge provide a proper limiting instruction? ” Id . (citing Curtis , 44 M.J. at 128).United States v. Campbell , No. ACM 38875 (reh)

14 Court members are presumed to follow the military judge’s instructions in the absence of evidence to the contrary. See United States v. Taylor , 53 M.J. 195, 198 (C.A.A.F. 2000) (citations omitted).

3. Analysis

The military judge did not abuse her discretion i n concluding severance was not required in order to prevent manifest injustice to Appellant. Accepting that the evidence Appellant committed abusive sexual contact on AM in June or July 2014 was not admissible to prove Appellant sexually assaulted MH in
Oc tober 2014, and vice versa, see generally United States v. Hills , 75 M.J. 350 (C.A.A.F. 2016), the military judge nevertheless reasonably anticipated that she would give appropriate limiting instructions and found the Defense had
not demonstrated a substan tial risk of impermissible crossover of the evid ence. The military judge did gi ve appropriate limiting instructions, and the Government generally adhered to her direction to present its opening, evidence, and argument in a manner that kept the charged offe nses distinct. Reviewing the record as a whole, we find no indication the court members failed to follow the military judge’s instruction or impermissibly relied on evidence of the alleged abusive sexual contact in order to find Appellant guilty of sexual assault.

Appellant cites the CAAF’s opinion in United States v. Guardado , 77 M.J. 90, 94 (C.A.A.F. 2017), for the principle that “[c]onfusing instructions create a substantial risk of impermissible crossover which may impermissibly lower the
burden of proof where those instructions appear to suggest that a panel may find the accused has a general criminal propensity.” However, the confusing
instructions the CAAF addressed in Guardado are entirely absent here. I n contrast to Appellant’s original trial, w hich resulted in the CAAF setting aside his Article 120, UCMJ, convictions for a Hills error, the court members at Appellant’s rehearing did not receive confusing and erroneous instructions that they could use proof of Appellant’s guilt of one charged sexu al offense as evidence Appellant was guilty of another charged sexual offense

, pursuant to Mil. R.
Evid. 413. See id . at 92

– 93; Campbell , 77 M.J. at 366; see also Hills , 75 M.J. at
353

– 57. To the contrary, as described above

, the military judge provided a clear
anti

- spillover instruction.

Appellant contends that the spillover instruction in combination with the
additional instruction that “evidence which is releva nt to more than one offense” may be consider ed “ with respect to each offense to which it is re l e vant ” was confusing. However, he does not challenge the correctness per se of either
instruction. We find that the provision of these two accurate, standard instructions , which are routine ly provided at Air Force courts

- martial

, did not create an impermi ssible risk of spillover or any other manifest injustice. Accordingly, we conclude the military judge did not abuse her discretion.United States v. Campbell , No. ACM 38875 (reh)

15 D. Instruction on Incapacity to Consent

1. Additional Background

The military judge provided the court members the following instructions,
inter alia , with respect to the charged sexual assault against MH:

In order to find [Appellant] guilty of this offense you must be convinced by legal and competent evidence beyond a reasonable
doubt:

1) That between on or about 24 October 2014 and on o r about 25 October 2014, within the state of Ohio, the accused committed a

sex ual act upon [MH] ; 2) That the accused did so by causing bodily harm to [MH] , to wit: penetrating her vulva with his penis; and

3) That the accused did so without the consent of [MH]

.

. . . “Bodily harm” means any offensive touching of another, however slight, including any nonconsensual sexual act.

The government alleged the accused committed a sexual act , to

w it: penetrating the vulva of [MH] with his penis, and that the same physical act also constitutes a bodily harm required for the charge [ d ] sexual assault. Under these circumstances, the government also has the burden to prove beyond a reason able doubt
that [MH] did not consent to the physical act.

“Consent” means a freely given agreement to the conduct at issue by a competent person. An expression or [sic] lack of consent through words or conduct means there is no consent. Lack of verbal or physical resista nce or submission resulting from the use of force, threat of force, or placing another person in fear doe s not constitute consent.

. . . Lack of consent may be inferred based on the cir cumstances. All the surrounding circumstances are to be considered in d etermining whether a person gave consent or whether a person did not
resist or cease [d] to resist only because of another person’s actions.

. . .Evidence concerning consent to the sexual conduct, if any, is relevant and must be considered in determining whether the gov-United States v. Campbell , No. ACM 38875 (reh)

16ernment has proven the elements of the offense beyond a reasonable doubt. Stated another way, evidence the victim consented to the sexual conduct, either alone or in conjunction with the other evidence in this case, may cause you to have a r easonable doubt as to whether the government has proven every element of the offense.

Trial defense counsel did not object to these particular instructions.

During deliberations on findings, one of the court members asked the military judge for clarification regarding the terms “freely given agreement” and “competent person.” The military judge advised the parties she intended to provide the non

- statutory defi nitions set forth in our sister court’s opinion in
United States v. Pease

, 74 M.J. 763, 770 (N.M. Ct. Crim. App. 2015), aff’d , 75 M.J. 180 (C.A.A.F. 2016), that the CAAF subsequently indorsed. Trial defense counsel did not object to the proposed instructio n, but requested an additional
instruction that “there is no blood alcohol content level which is determinative
on the law whether someone is competent. ” When the milit ary judge denied this request , trial def ense counsel requested the military judge “ instr uct the members of what impaired by and intoxicated means .” The military judge denied this request as well, commenting “I am just going to keep it simple.” The military judge then instructed the court members:

A competent person is a person who possesses t he physical and
mental ability to consent. An incompetent person is a person who lacks either the mental or physical ability to consent because he or she is asleep or unconscious, impaired by a drug [,]
intoxicant [,] or other similar substance, or suffering from a mental disease or defect or a physical disability. To be able to freely make an agreement, a person must first possess the cognitive ability to appreciate the nature of the conduct in question and then possess the mental and physical ability to mak e and communicate a decision regarding that conduct to the other person. However, if the person has the ability to appreciate the conduct
and communicate lack of consent but does not do so out of fear or some other external influence counteract during [sic ] voluntariness the sexual conduct is not voluntary. A person is incapable of consenting when he or she lacks the cognitive ability toappreciate the sexual conduct in question or the physical or mental ability to make or to communicate a decision about whether he or she agrees to the conduct.

The military judge then asked the parties if they had objections to the instruction or requests for additional instructions. Trial defense counsel responded, “None other than have been previously noted.” The court m embersUnited States v. Campbell , No. ACM 38875 (reh)

17 indicated this instruction answered the question, and requested a written copy. The members asked no further questions about consent or competency before delivering their findings.

2. Law

Generally, we review the adequacy of the military judge’s instru ctions de

novo. United States v. Dearing , 63 M.J. 478, 482 (C.A.A.F. 2006) (cita tions omitted). Ho wever, the CAAF has held that whe n an appellant affirmatively
de clines to object to the military judge’s instructions, the issue is waived.
United States v. D avis , 79 M.J. 329, 332 (C.A.A.F. 2020) (citations omitted)

, cert. denied

, __ S. Ct. __, 2020 U.S. LEXIS 4468 (5 Oct. 2020) . The CAAF will not review waived issues, because affirmative waiver leaves no error to correct on appeal. Id . ( citation omitted). How ever, pur suant to Article 66(c), UCMJ, 10U.S.C. § 866(c), the Courts of Criminal Appeals have the unique statutory responsibili ty to affirm only such findings of guilty and so much of the sentence that they find are correct an d “should be approved.” This in cludes the authority to address errors raised for the first time on appeal despite waiver of those
errors at trial. See United States v. Hardy , 77 M.J. 438, 442

– 43 (C.A.A.F. 2018).

As charged in this case, in order for the court members to find Appellant guilty of sexual assault against MH , the Government was required to prove beyond a reasonable doubt that, inter alia , Appellant cau sed the penetration of MH’s vulva by Appellant’s penis without MH ’s consent. See MCM , pt. IV, ¶ 45.a.(b)(1)(B ) , (g)(3) . “Con sent” is defined as “a fr eely given agreement to the

con duct at issue by a competent person.” MCM , pt. IV, ¶ 45.a.(g)(8)(A). “ A sleepi ng, unconscious, or incompetent person cannot consent. ” MCM , pt. IV, ¶ 45.a.(g)(8)(B ). “Lack of consent may be inferred based on the circumstances of the offense. All of the surrounding circumstances are to be consider ed in determining whether a per son gave consent . . . .” MCM , pt. IV, ¶ 45.a.(g)(8) (C)

.
3. Analysis

On appeal, Appellant contends “[t]he m ilitary judge erred in instruct ing the panel as to incapacitation when b odily harm was the charged theo ry.” We
conclude Appellant cannot prevail on this issue

. To begin with, trial defense counsel affirmatively stated the Defense had no objection to the pertinent portions of the military judge’s original instructions on the offense of sexual assault, nor to the Pease instruction the military judge provided in response to the court member’s question. The limited additional instructions the Defense requested and the military judge denied would not have altered the wording or effect of the Pease instruction Appellant now challenges on appeal. Accordingly, in light of Davis , we find Appellant has waived the alleged error. See 79 M.J. at 331

– 32.United States v. Campbell , No. ACM 38875 (reh)

18 However, this conclusion does not end ou r analysis. We recognize our authority under Article 66(c), UCMJ, to pierce an appellant’s waiver in order to correct a legal error. See Hardy , 77 M.J. at 442

– 43 . Accordingly, we address the substance of Appellant’s argument to explain why the asserted error is without merit in any event.

Essentially, Appellant argues that sexual assault by causing bodily harm

, to wit, committing a sexual act without consent, and sexual assault by committing a sexual act on a person who is incapable of consenting are “mu tually exclusive” theories of liability under Article 120, UCMJ. See MCM , pt. IV, ¶ 45.a.(b)(1)(B) , (3). Therefore, he reasons, the Government was required to separately charge sexual assault due to incapacity in the alternative to sexual assault by bodily harm. Because the Government did not do so, the military judge’s instruction erroneously permitted the court members to find Appellant guilty on the theory that MH was incapable of consenting. Cf. United States v.
Ober , 66 M.J. 393, 405 (C.A.A.F. 2008) ( q uoting Dunn v. United States , 442 U.S. 100, 106 (1979) ) (“ To uphold a conviction on a charge that was neither alleged in an indictment nor presented to a jury at trial offends the most basic notions of due process .” )

However, Appellant’s premise is flawed. He cites no decision from the CAAF or any of the Courts of Criminal Appeals holding that the Government cannot convict an accused on a bodily harm theory of sexual assault in violation of Article 120, UCMJ , where the victim was not competent to consent

. A s charged, the Government was required to prove MH did not consent to the
sexual act. T he military judge provided the members the standard instruction

— derived directly from the statute

— that “consent” means a “ freely given agreement to the conduct at is sue by a competent person. ” Thus, the question of whether MH was competent to consent was directly and appropriately before the members. When a court member specifically asked the military judge to clarify the meaning of “competent person,” she provided the de finition set forth
in Pease that the CAAF has specifically indorsed. This was entirely appropriate. See Ober

, 66 M.J. at 405 (“ The military judge has an independent duty to determine and deliver appropriate instructions. ”) (citation omitted). The extent to which MH was intoxicated or was asleep at the time Appellant committed the sexual act were part of the “surrounding circumstances” that were “ to be considered in determining whether [MH] gave consent,” in accordance with Article 120, UCMJ. M CM , pt. IV, ¶ 45.a.(g)(8)(C) ; see also United States v. Harris , No. ACM 39640, 2020 CCA LEXIS 299, at *26

– 27 (A.F. Ct. Crim. App. 2 Sep. 2020) (unpub. op.). Therefore, we find no error that would warrant piercing Appellant’s waiver.United States v. Campbell , No. ACM 38875 (reh)

19 E. Post

- Trial Delay

Appell an t’s court

- martial concluded on 9 Mar ch 2019. However, the convening autho rity did not take action until 23 Ju ly 2019 . This 136

- day period exceeded by 16 days the 120

- day threshold for a presumptively unreasonable post

- trial d elay the CAAF established in Moreno , 63 M.J. at 142 . Accordingly, although Appellant has not raised the issue in his assignments of error, we have considered the four factors the CAAF identified in Moreno to assess whether Appellant’s due process right to timely post

- trial and appella te review has been violated: “(1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of th e right to timely review and ap peal; and (4) prejudice.” Id . at 135 (citing United States v. Jones , 61 M.J. 80, 83 (C.A.A.F. 2005); Toohey v. United States , 60 M.J. 100, 102 (C.A.A.F. 2004) (per curiam)). “We review de novo claims that an appellant has been denied the due process right to a speedy post

- trial review and appeal.” Id . (citations omitted).

In Moreno , the CAAF identified three types of cogn izable prejudice for purposes of an appellant’s due process right to timel y post

- trial review: (1) oppressive incarceration; (2) anxiety and concern; and (3) impairment of the appellant’s grounds for appeal or ability to present a defens e at a rehearing. 63 M.J.
at 138

– 39 (citatio ns omitted). In this case, the post

- trial delay did not result in oppressive in carceration because Appellant had already completed his term of confinement before the sentence was adjudged. Moreover, there is no o ppressive incarceration where the appellant does not prevail on the substan tive grounds of his appeal, as Appellant has not prevailed in the instant appeal of his rehearing. Id . at 139. Sim ilarly, where Appellant’s substantive appeal fai ls, his ability to present a de fense at a nother rehearing is not impaired , and we cannot perceive how any ground for appeal has been materially impaired

. Id

.at 140. With regard to anxiety and concern, “the appropriate test for the military justice system is to require an ap pellant to show particularized anxiety orconcern that is distinguishable from the normal anxiety experienced by priso ners awaiting an appellate deci sion.” Id . Appellant has made no claim or showing of such particularized post

- trial anxi ety or concern in t his case, distinct from that experienced by other appellants convicted of sexual assault, and we perceive none.

Where there is no qualifying prejudice from the delay, there is no due process violation unless the delay is so egregious as to “adversely affe ct the pub lic’s perception of the fairness and integrity of the military justice system.” United States v. Toohey , 63 M.J. 353, 362 (C.A.A.F. 2006). Significantly, in this case post

- trial defense motions that were not finally denied by the military judge

u ntil 3 July 2019 delayed authentication of the record until th at date. Thereafter , Appellant’s case was processed expeditiously. We conclude that theUnited States v. Campbell , No. ACM 38875 (reh)

20 breach of the Moreno standard in this case was not egregious under the circumstances , and we do not find a violation of Appellant’s due process rights.

Recognizing our authority under Article 66(c), UCMJ, 10 U.S.C. § 866(c),
we have also considered whether relief for exce ssive post

- trial delay is appropriate in this case even in the absence of a due process violation. See United States v. Tardif , 57 M.J. 219, 225 (C.A.A.F. 2002). After considering the factors
enumerated in United States v. Gay , 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d , 75 M.J. 264 (C.A.A.F. 2016), we conclud e no such relief is warranted

.

III. C ONCLUSION
The findings of guilty with respect to Charge II and its Specification (adultery) and Additional Charge II and its Specification (wrongfully proving alcohol to a minor) were previous ly affirme d. The findings and sentence adjudged by the court

- martial and approved by the convening authority are cor rect in law and fact, and no error materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ, 1 0 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and sentence are AFFIRMED

.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court