UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

J.A. FISCHER, K.M. MCDONALD, D.C. KING

Appellate Military Judges

UNITED STATES OF AMERICA

v.

BLAS M. ESCAMILLA 

PRIVATE FIRST CLASS (E-2), U.S. MARINE CORPS

NMCCA 201400168

GENERAL COURT-MARTIAL

Sentence Adjudged: 20 December 2013.

Military Judge: LtCol C.J. Thielemann, USMC.

Convening Authority: Commanding General, 1st Marine 

Logistics Group, Camp Pendleton, CA.

Staff Judge Advocate's Recommendation: LtCol E.J. Peterson, 

USMC.

For Appellant: Maj John Stephens, USMC.

For Appellee: Maj Tracey Holtshirley, USMC; Capt Cory 

Carver, USMC..

23 April 2015

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OPINION OF THE COURT 

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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS 

PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

A general court-martial consisting of officer and enlisted 

members convicted the appellant, contrary to pleas, of violating 

a lawful general order by wrongfully distributing alcohol to 

minors and committing a nonconsensual sexual act in violation of 

Articles 92 and 120, Uniform Code of Military Justice, 10 U.S.C. 
2

§§ 892 and 920. The members sentenced the appellant to a 

reduction in pay grade to E-1, confinement for 235 days,1 and a 

bad-conduct discharge.

The appellant raises two assignments of error: (1) the 

evidence was legally and factually insufficient to affirm a 

conviction for sexual assault and (2) the military judge erred 

by instructing the members about punitive measures that could 

have been taken against the appellant before the repeal of 

“Don’t Ask, Don’t Tell.”

After carefully considering the pleadings of the parties 

and the record of trial, we conclude that the findings and the 

sentence are correct in law and fact and that no error 

materially prejudicial to the substantial rights of the 

appellant was committed.2 Arts. 59(a) and 66(c), UCMJ. 

Background

On 1 February 2013, the victim, Lance Corporal (LCpl) MH 

agreed to accompany the appellant, an openly homosexual fellow 

Marine, and other Marines to Oceanside to serve as a designated 

driver. As the night wore on, the appellant and the victim, 

along with three other Marines, ended up in a local hotel where 

the Marines, including LCpl MH, continued to drink and 

socialize. Eventually, the victim became “really drunk”3 and 

laid down on one of the beds. Moments later, the room emptied 

of everyone but LCpl MH and the appellant, who began giving LCpl 

MH a back massage. LCpl MH acquiesced and did not resist as the 

appellant moved on to massaging LCpl MH’s chest, stomach and 

legs. The appellant then tried to kiss LCpl MH, but was pushed 

away. When the appellant asked if he could perform oral sex on 

LCpl MH, LCpl MH replied “nah.”4

 Claiming that he believed that 

LCpl MH was playing “hard to get,”5 the appellant rolled LCpl MH 

onto his back, lowered LCpl MH’s jeans, and placed LCpl MH’s 

penis in his mouth for about a minute.6

 

 

1

 This period of confinement was equal to time served by the appellant in

pretrial confinement.

2 The appellant’s 10 November 2014 Motion for Oral Argument is denied.

3 Record at 793.

4 Id. at 1118. 

5 Id. at 1086.

6 Id. at 847. 
3

At trial, LCpl MH was unable to recall every detail of the 

assault, but recalled that he “continue[d] to say no and tr[ied] 

to push him away”7 while the appellant was attempting to expose 

LCpl MH’s penis. Once the appellant began the sexual act, LCpl

MH put a pillow over his own face “like when you want to scream”8

and “hope[d] that it would just stop.”9 LCpl MH testified that 

at no time during the assault did he achieve an erection or 

consent to the activity. A moment after commencing the sexual 

act, the appellant heard the other Marines returning to the room 

so he ceased his activity and jumped into the empty bed. LCpl 

MH testified that he then took a shower and went back to sleep. 

The following morning, the appellant and LCpl MH, along 

with one other Marine, returned to base, stopping for breakfast 

along the way. Later, the appellant had a falling out with a 

fellow-Marine, after which the latter contacted LCpl MH and 

asked him if he had ever been sexually assaulted by the 

appellant. LCpl MH responded in the affirmative but asked that 

she not tell anyone. The Marine nonetheless reported LCpl MH’s 

comments to the command, an investigation ensued, and the 

appellant was eventually charged with a number of UCMJ 

violations, including assaulting and sexually assaulting other 

male Marines.10 The specification relating to LCpl MH accused 

the appellant of committing a sexual act upon LCpl MH by 

“placing his mouth on [LCpl MH’s] penis, by causing bodily harm 

to him, to wit: a nonconsensual touching of the said [LCpl MH’s] 

penis.” 

Additional facts necessary for the resolution of the 

assignments of error are included below. 

 

Discussion

The appellant now claims that the evidence was legally and 

factually insufficient to support a conviction for sexually 

assaulting LCpl MH. Specifically, the appellant argues the 

evidence is insufficient to prove beyond a reasonable doubt that 

LCpl MH neither consented to the alleged assault nor that the 

appellant honestly and reasonably believed that LCpl MH

consented. 

 

7 Id. at 797. 

8 Id. at 800.

9 Id. at 801.

10 The appellant was acquitted of all other charges.
4

The test for legal sufficiency is whether, considering the 

evidence in the light most favorable to the Government, any 

rational trier of fact could have found the elements of the 

offense beyond a reasonable doubt. Jackson v. Virginia, 443 

U.S. 307, 318-19, (1979); United States v. Reed, 54 M.J. 37, 41 

(C.A.A.F. 2000). 

The test for factual sufficiency is whether, after weighing 

the evidence and making allowances for not having observed the 

witnesses, we ourselves are convinced of the appellant's guilt 

beyond a reasonable doubt. Reed, 54 M.J. at 41.

Mistake of fact as to consent requires that the appellant 

held an honest and reasonable belief that LCpl MH consented to 

the sexual contact. RULE FOR COURTS-MARTIAL 916(j)(3), MANUAL FOR 

COURTS-MARTIAL, UNITED STATES (2012 ed.). Thus, there is both a 

subjective and objective component. United States v. Goodman, 

70 M.J. 396, 399 (C.A.A.F. 2011). Even if the appellant 

honestly believed that LCpl MH consented, that belief must be 

objectively reasonable or the defense fails. The Government 

bears the burden of disproving mistake of fact beyond a 

reasonable doubt. R.C.M. 916(b). 

At trial, the appellant testified that the sexual encounter 

with LCpl MH was consensual. As a result, the military judge 

properly instructed the members that evidence of consent “may 

cause a reasonable doubt as to whether the accused cause[d] 

bodily harm to the alleged victim.”11 The military judge also 

correctly instructed the members that “mistake of fact as to 

consent is a defense” to the alleged assault against LCpl MH, 

how to apply this potential defense, and that the Government had 

the burden of proving beyond a reasonable doubt that “mistake of 

fact as to consent did not exist.”12

The appellant now claims that “[i]t is simply unreasonable 

for the finder-of-fact to see the sexual encounter between [the 

appellant] and LCpl MH as anything other than an awkward, but 

consensual, homosexual encounter.”13 We disagree and begin by 

citing the black letter law: “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.” MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 

 

11 Id. at 1164. 

12 Id. at 1166.

13 Appellant’s Brief of 22 Sep 2014 at 13. 
5

ed.), Part IV, ¶ 45a(g)(8)(A). There was ample evidence to 

establish that LCpl MH did not consent to the appellant’s 

activity, including the appellant’s own admission that LCpl MH 

said “nah” when the appellant asked if he could perform fellatio 

on LCpl MH. 

We recognize that the testimony of LCpl MH and the 

appellant as to what happened that evening conflicted. While 

LCpl MH testified that he did not consent to the sexual 

activity, the appellant claims that LCpl MH requested the 

massage, “had a smile on his face” during the massage14; that 

LCpl MH “picked up his hips” to assist the appellant with taking 

LCpl MH’s jeans down15; and that LCpl MH then “put his left leg 

onto the floor” in preparation for receiving oral sex.16 We also 

note the appellant’s contention that, the morning following the 

assault, LCpl MH chose to ride in the front of the car with the 

appellant, had breakfast with the appellant, and declined to 

report the assault until his hand was forced by a fellow Marine 

with an apparent axe to grind. However, we are not persuaded 

that these events or testimony have the impact the appellant 

desires. 

The Government’s case stands upon the credibility of LCpl 

MH as opposed to that of the appellant. “[R]easonable doubt 

. . . does not mean the evidence must be free of conflict.” 

United States v. Goode, 54 M.J. 836, 841 (N.M.Ct.Crim.App. 2001)

(citation and internal quotation marks omitted). In fact, 

members are free to believe one witness and disbelieve another. 

United States v. Lepresti, 52 M.J. 644, 648 (N.M.Ct.Crim.App. 

1999). The record reveals that the victim's testimony at trial 

was substantially consistent, appropriately detailed, and 

withstood quite vigorous cross-examination. This fact, coupled 

with a recognition that the court members had the advantage of 

being able to personally see and hear the witnesses, leaves us 

convinced of the appellant’s guilt beyond a reasonable doubt.17 

 

14 Record at 1087.

 

15 Id. at 1091.

16 Id. at 1092. 

17 Considering the evidence adduced at trial in the light most favorable to 

the Government, we also find that a rational trier of fact could have found 

the elements of the offense beyond a reasonable doubt.
6

Conclusion

The appellant's remaining assignment of error is without 

merit. United States v. Clifton, 35 M.J. 79 (C.M.A. 1992). The 

findings and approved sentence are affirmed. 

 

For the Court

 

 

 

R.H. TROIDL

Clerk of Court