This opinion is subject to administrative correction before final disposition.

Before 

KISOR, DALY, and MIZER

Appellate Military Judges

_________________________

UNITED STATES

Appellee

v.

Addam J. MOORE

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

Appellant

No. 202300195

_________________________

Decided: 6 June 2024

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: 

Eric A. Catto

Sentence adjudged 8 March 2023 by a special court-martial convened 

at Marine Corps Base Hawaii, consisting of a military judge sitting 

alone. Sentence in the Entry of Judgment: reduction to E-1, confinement for four months, and a bad-conduct discharge.

For Appellant:

Captain Edward V. Hartman, JAGC, USN

For Appellee: 

Lieutenant Commander James P. Wu Zhu, JAGC, USN

Major Mary Claire Finnen, USMC
United States v. Moore, NMCCA No. 202300195

Opinion of the Court

2

Judge MIZER delivered the opinion of the Court, in which Senior Judge 

KISOR and Judge DALY joined.

_________________________

PUBLISHED OPINION OF THE COURT

_________________________

MIZER, Judge:

This case began at a general court-martial where Appellant was charged 

with two specifications of sexual assault without consent, two specifications of 

extramarital sexual conduct, and one specification of indecent conduct in violation of Articles 120 and 134, Uniform Code of Military Justice (UCMJ).1

Pursuant to Article 53a(a)(1)(A)-(B), UCMJ, and Rule for Courts-Martial 

705, the parties entered into a plea agreement where Appellant agreed to plead 

guilty to one specification of assault consummated by a battery for unlawfully 

touching his victim’s arm, and one specification of extramarital sexual conduct 

for having sexual intercourse with his victim in violation of Articles 128 and 

134, UCMJ.2 Nevertheless, citing United States v. Terlep,3 the parties agreed 

that the victim, U.S. Army Captain (CPT) D. Mike, would be able to testify 

during sentencing as to her belief that Appellant sexually assaulted her.4

As consideration for this agreement, the convening authority agreed to 

withdraw all of the charges and specifications that were initially referred to a

general court-martial and to resolve this case at a special court-martial.5 With 

respect to the sentence, the parties agreed the military judge would sentence 

Appellant to a bad-conduct discharge and reduction to E-1.6 Finally, they 

agreed that the military judge would impose a sentence including three to six 

1 App. Ex. III. 

2 10 U.S.C. §§ 928; 934.

3 57 M.J. 344 (C.A.A.F. 2002). 

4 App. Ex. I at 4. 

5 App. Ex. I at 1; 5. 

6 App. Ex. I at 6. 
United States v. Moore, NMCCA No. 202300195

Opinion of the Court

3

months of confinement for each of the charged offenses, and that these sentences would run concurrently.7

Accordingly, Appellant was convicted, consistent with his pleas, of one specification of assault consummated by a battery8 and one specification of extramarital sexual misconduct.9 And, as noted above, the military judge sentenced 

Appellant in accordance with the bargained-for plea agreement. 

But Appellant now levels a broadside at the bargain he struck below10 asserting six assignments of error: (1) whether Appellant’s conviction for assault 

consummated by a battery in violation of Article 128, UCMJ, was improvident; 

(2) whether the military judge abused his discretion when he accepted Appellant’s guilty plea for extramarital sexual conduct in violation of Article 134, 

UCMJ; (3) whether the military judge abused his discretion by allowing the 

Government to introduce aggravation evidence beyond the scope of the charge 

for which Appellant pleaded guilty; (4) whether the military judge abused his 

discretion by allowing a victim impact statement that went beyond the scope 

of the charge for which Appellant pleaded guilty; (5) whether Appellant’s defense counsel ineffectively represented him during his court-martial; and (6) 

whether the sentence adjudged is inappropriately severe.

7 App. Ex. I at 7. 

8 10 U.S.C. § 928.

9 10 U.S.C. § 934.

10 We have recently had occasion to discuss Congress’s adoption of Article 53a, 

UCMJ, which incorporated much of Federal Rule of Criminal Procedure 11 into the 

UCMJ in an intentional effort to put an end to so-called “beat-the-deal” plea bargaining. United States v. Colletti, __ M.J. __, 2024 CCA LEXIS 186, *8 (N-M. Ct. Crim. App. 

2024)(citing Dep’t of Defense, Report of the Military Justice Review Group 484 (2015) 

(hereinafter MJRG Report)). But Congress did not provide for a corollary to Rule 

11(b)(1)(N), which permits a plea-agreement to include a provision waiving the right 

to appeal or collaterally attack the sentence. Thus, while the waiver of the right to 

appeal is a common term in agreements made pursuant to Rule 11 in federal district 

courts, Nancy J. King & Michael E. O’Neill, Appeal Waivers and the Future of Sentencing Policy, 55 DUKE L.J. 209, 231 (2005), such waivers remain prohibited by Rule for 

Courts-Martial 705(c)(1)(B). While some may question the wisdom or efficiency of allowing servicemembers to challenge their bargained-for pleas of guilty on direct appeal, “Courts play a limited role in effecting policy in this country. In short: legislatures 

make the policy; we interpret it.” Faber v. Ciox Health, LLC, 944 F.3d 593, 596 (6th 

Cir. 2019). 
United States v. Moore, NMCCA No. 202300195

Opinion of the Court

4

As set forth below, we find merit in Appellant’s first assignment of error. 

We conclude that the appropriate remedy is to set aside the findings, set aside 

the sentence, and permit him to plead anew or proceed to trial.11

I. BACKGROUND

The stipulation of fact in this case is carefully curated. Appellant, a married 

Marine then stationed in Hawaii, was sent on temporary additional duty orders to attend a Marine Corps Career Planner Course.12 On Halloween night 

in 2020, Appellant met CPT Mike at the Tin Roof Bar in San Diego, California. 

While there, Appellant ordered “Irish Trash Cans,” a mixed drink containing 

red bull and several types of alcohol, for both himself and CPT Mike. Appellant 

encouraged his superior commissioned officer to drink. Later, they took an 

Uber back to CPT Mike’s room at the Navy Lodge. 

Once there, the two had sex. But before they did so, Appellant told CPT 

Mike he was going to “try something new.”13 And the something new? It was 

to touch her arm with his hand. The parties stipulated that CPT Mike didn’t 

consent to the touching of her arm, that Appellant wasn’t forced to do so, that 

he could have avoided touching her arm if he wanted to, and that he had no 

legal justification or excuse for touching her arm.14 So far so good. 

1) Appellant pleads guilty to assaulting CPT Mike on her bicep.

During the military judge’s Care15 inquiry, Appellant, describing the assault, said he “just took a leap of faith...spur of the moment” and touched CPT 

Mike’s arm, but he “kind of received bad feedback from that.”16 Her “facial expressions” reflect that it “didn’t seem to be enjoyable.”17 He told the military 

judge that he touched CPT Mike’s bicep with one of his hands.18 Appellant went 

on to explain that after “the matter and looking back, there was—it just—it 

didn’t line up. It was unwanted.”19 And Appellant thought it “would have been 

11 See, e.g., United States v. Hairston, 522 F.3d 336, 342 (4th Cir. 2008). 

12 Pros. Ex. 1 at 2. 

13 Id.

14 Pros. Ex. 1 at 2-3. 

15 United States v. Care, 18 C.M.A. 535, 541, 40 C.M.R. 247, 253 (C.M.A. 1969).

16 R. at 26. 

17 R. at 26. 

18 R. at 27.

19 R. at 28. 
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Opinion of the Court

5

[an] approach” that would lead to sex, but after the initial assault of CPT 

Mike’s arm, he “took a step back and went at a different approach.”20 And that 

approach, whatever it was, did lead to sex.

The military judge asked if Appellant had “any sort of mistake of fact as to 

whether or not [CPT Mike] was consenting” to being touched on her bicep, and 

Appellant responded, “I do not, Your Honor.”21 Neither party requested additional inquiry, and the military judge convicted Appellant of assault consummated by a battery in accordance with his pleas. 

2) The Government introduces matter inconsistent with Appellant’s plea.

As the Scottish poet Robert Burns observed, the best-laid plans of mice and 

men often go awry.22 And Appellant’s plea, which was best-laid, quickly unraveled as the Government opened its sentencing case.23

In an apparent effort to obtain a sentence on the higher end of the bargained-for three-to-six-month sentencing range for confinement, the Government introduced a number of reports of interviews taken by agents from the 

Naval Criminal Investigative Service (NCIS) during its investigation of CPT 

Mike’s allegation that Appellant sexually assaulted her.24 While these interviews do contain matters in aggravation, they also squarely raise the mistake 

of fact defense to the alleged assault and present a substantial basis in both 

law and fact to question Appellant’s plea to that Charge.25

One of these reports recounted an interview of Army Second Lieutenant 

(2LT) S. Foxtrot.26 It is there we learn that, on Halloween night in 2020, 2LT 

Foxtrot, CPT Mike, and other students assigned to the Uniformed Services 

University of the Health Sciences (USUHS) in Bethesda, Maryland, joined a 

table of three Marines in a bar in the Gaslamp Quarter of San Diego.27 And, 

consistent with the stipulation of fact, 2LT Foxtrot describes how one of the 

20 R. at 29.

21 R. at 28. 

22 Robert Burns, To a Mouse (1785) (“The best-laid schemes o’ Mice an’ Men gang 

aft agley.”).

23 United States v. Marcy, 62 M.J. 611, 614 (A.F. Ct. Crim. App. 2005) (“[T]rial 

counsel will ordinarily find impeaching a guilty plea to be an unproductive litigation 

strategy.”). 

24 R. at 69. 

25 See generally, United States v. Goodman, 70 M.J. 396, 400 (C.A.A.F. 2011). 

26 Pros. Ex. 4. 

27 Pros. Ex. 4 at 1. 
United States v. Moore, NMCCA No. 202300195

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Marines, who would later be identified as Appellant, was pressuring CPT Mike 

to drink. Not mentioned in the stipulation of fact, and understandably so, is 

that she observed Appellant touching CPT Mike’s back with his hands while 

they were in the bar.

The group of officers and Marines closed the bar that night. As they spilled 

out onto the street after last call, 2LT Foxtrot saw Appellant and CPT Mike 

“very close” to each other. As the group walked down the street, Appellant and 

CPT Mike fell behind and started kissing. And so 2LT Foxtrot sent another 

officer, 2LT A. Echo, to check on her. When he got back, he said that CPT Mike 

told him she “was fine and to leave her alone” and he reported that she was a 

“little aggressive about it.”28 The larger group, which included at least one enlisted Marine, then went into a 7-Eleven, and 2LT Foxtrot never saw CPT Mike 

or Appellant again that night.

In another interview introduced by the Government, Public Health Services Ensign (ENS) J. Tango, another USUHS student there that Halloween 

night, describes going into a bar where the group of students joined three Marines sitting at a picnic table.29 While admitting he was drunk by the end of 

the evening, ENS Tango recalls that it was another Marine, not Appellant, who 

was kissing CPT Mike in the bar. ENS Tango intervened and asked CPT Mike 

if she was okay with the situation, and she said she was.30

Because he was drunk, ENS Tango left the bar before the others. But by 

the time his Lyft arrived, he saw CPT Mike “making out” with the same Marine 

while ENS Tango was waiting for his car.31 Before getting into the car, he again 

asked CPT Mike if she was okay. She gave him a thumbs up, and she told him 

she was okay.32

But 2LT Foxtrot told NCIS that the Marine identified by ENS Tango was 

with the larger group that went to 7-Eleven, and that Marine was with her

until she boarded a trolley with ENS Tango at 0130 early the next morning.

However, the trolley shut down shortly after they climbed aboard, and instead 

of a Lyft, 2LT Foxtrot told NCIS that she and ENS Tango walked back to their 

individual rooms at the Navy Lodge, arriving sometime after 0230. 

28 Pros. Ex. 4 at 2.

29 Pros. Ex. 4 at 1. 

30 Pros. Ex. 6 at 2. 

31 Id. 

32 Id. 
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For his part, ENS Tango couldn’t remember the name of the bar that night, 

but he denied that the Marines there were pressuring anyone to drink. He also 

didn’t remember meeting anyone with Appellant’s first name, Addam.

Finally, the Government introduced an interview of CPT Mike.33 She recalled Appellant ordering “Irish trash cans,” which they drank “crossed arm 

style” while they talked.34 She recalled how, at some point, Appellant was very 

close to her and started rubbing her back over her clothes while their legs were 

touching one another.35 She told agents from NCIS that she blacked out while

in the bar around 2300 that night.

Her next memory was of Appellant waking her up in an Uber after they 

arrived at Naval Base San Diego, where CPT Mike was staying at the Navy 

Lodge.36 The gate closest to the Navy Lodge was closed, so they had to walk to 

another. As they walked, Appellant told CPT Mike how earlier that evening

she told her friends that she was fine and sent them home. He said she then 

performed oral sex on Appellant and later had sex with him somewhere in the 

Gaslamp Quarter.37 In response, she told him she remembered being in a “dark 

place” with her pants down around her knees while Appellant stood in front of 

her trying to pull them up as someone approached. She remembered someone 

with a flashlight telling them, “you all can’t do that here.”38

When they finally arrived at an open gate, Appellant and CPT Mike presented their Common Access Cards to the sentry who saluted CPT Mike. CPT 

Mike, a graduate of the United States Military Academy at West Point, New 

York, returned the salute. By this point, she told agents from NCIS that she 

was “coherent” and “able to walk normal.”39 When Appellant told her that he 

couldn’t wait to get her into her hotel room, she asked him, “what if I just want 

33 CPT Mike also made an unsworn victim statement pursuant to Article 6b, 

UCMJ, and Rule for Courts-Martial 1001(c)(5). But unlike Prosecution Exhibit 3, unsworn victim statements are not evidence. United States v. Tyler, 81 M.J. 108, 113 

(C.A.A.F. 2021). 

34 Pros. Ex. 3 at 2. 

35 Id. 

36 Id. 

37 Id. 

38 Id. 

39 Pros. Ex. 3 at 3. 
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Opinion of the Court

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to go to sleep?”40 Appellant told her he had “come all this way,” and so she let 

him into her room at the Navy Lodge.

After they both used the restroom, CPT Mike sent 2LT Echo a text saying 

that she was fine but had no recollection of the last few hours. Appellant then 

invited CPT Mike to sit with him on the bed. He removed her shirt and her 

bra, and began sucking on her breasts. Appellant asked her to remove his shirt, 

which she did with some difficulty because her hands were shaking. They then 

had vaginal and anal sex. 

CPT Mike never mentioned Appellant’s assault on her bicep in either of the

two statements she gave to NCIS, which are attached to the record. But the 

documents introduced by the Government at sentencing, along with the stipulation of fact and the Care inquiry, inform us that this assault occurred in CPT 

Mike’s room at the Navy Lodge sometime immediately before Appellant had 

sex with CPT Mike for the second time that evening.

II. DISCUSSION

A. The Government set up matters raising a possible defense, and the 

military judge abused his discretion when he failed to resolve the apparent inconsistency or reject the plea. 

We review a military judge’s decision to accept a guilty plea for an abuse of 

discretion and questions of law arising from the guilty plea de novo.41 In doing 

so, we apply the substantial basis test, looking at whether there is something 

in the record of trial, with regard to the factual basis or the law, that would 

raise a substantial question regarding an appellant’s guilty plea.42

“An abuse of discretion occurs when there exists ‘something in the record 

of trial, with regard to the factual basis or the law, that would raise a substantial question regarding the appellant’s guilty plea.’”43 Pursuant to Article 45, 

UCMJ, a guilty plea shall not be accepted if an accused, after a plea of guilty, 

sets up matter inconstant with the plea, or if it appears that he has entered 

40 Id. 

41 United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008).

42 Id.

43 United States v. Hayes, 70 M.J. 454, 457 (C.A.A.F. 2012) (citing United States v. 

Inabinette, 66 M.J. at 322). 
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the plea improvidently, or through lack of understanding of its meaning and 

effect.44

“If an accused sets up matter inconsistent with the plea at any time during 

the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea.”45 But “Article 45’s plain language is not strictly 

limited to the accused.”46 “A guilty plea shall not be accepted if it appears to be 

improvident.”47

An affirmative defense to a charged offense would, by definition, constitute 

matter inconsistent with a plea of guilty and a military judge must resolve the 

apparent inconsistency or reject the plea.48 That said, not every mitigating 

statement or word requires further inquiry, and a military judge is not required to reopen a plea and inquire further where an accused raises the “mere 

possibility of a defense.”49 But if a party sets up matter raising a possible defense, then the military judge is required to make further inquiry and resolve 

any apparent ambiguity or inconsistency.50

Rule for Courts-Martial 916(j)(2) places no limitation on the source or the 

kind of evidence that may establish a mistake of fact defense.51 And the evidence supporting that defense “can come from evidence presented by the defense, the prosecution, or the court-martial.”52

The infliction of bodily harm is a required element of assault consummated 

by a battery, and to constitute bodily harm, an assault “must be done without 

44 10 U.S.C. § 845.

45 United States v. Phillippe, 63 M.J. 307, 309 (C.A.A.F. 2006) (citation omitted)

(cleaned up).

46 United States v. O’Donnell, 65 M.J. 795, 797 (C.G. Ct. Crim. App. 2007). 

47 Id. (citing Article 45, UCMJ).

48 Hayes, 70 M.J. at 458; United States v. Mease, 57 M.J. 686, 690 (N-M. Ct. Crim. 

App. 2022). 

49 United States v. Shaw, 64 M.J. 460, 462 (C.A.AF. 2007) (citation omitted)

(cleaned up). 

50 Phillippe, 63 M.J. at 310-11; Shaw, 64 M.J. at 462 (“The existence of an apparent 

and complete defense is necessarily inconsistent with a plea of guilty.”). 

51 United States v. Thompson, 83 M.J. 1, 5 (C.A.A.F. 2022). 

52 Id. at 4 (citing United States v. Jones, 49 M.J. 85, 91 (C.A.A.F. 1998)).
United States v. Moore, NMCCA No. 202300195

Opinion of the Court

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legal justification or excuse and without the lawful consent of the person affected.”53 Consent can convert what might otherwise be an offensive touching 

into non-offensive touching, and a reasonable and honest mistake of fact as to 

consent constitutes an affirmative defense to assault consummated by a battery.54

During the Care inquiry, Appellant told the military judge that, while he 

was in CPT Mike’s hotel room, he “took a leap of faith” and touched her bicep.55

He also told the military judge that it was her reaction, a facial expression, 

that, after the fact, informed him that his advance was unwanted. While this 

could be read to raise the mere possibility of the defense of mistake of fact, the 

military judge asked Appellant if he had “any sort of mistake of fact as to 

whether or not she was consenting to you touching her that way,” and he replied that he did not.56 While “a military judge must elicit actual facts from an 

accused and not merely legal conclusions,”57 in light of the “substantial leeway 

in conducting providence inquiries,”58 the military judge did not abuse his discretion in initially accepting Appellant’s plea to assault consummated by a battery. 

But that wasn’t the end of the matter. The parties agree, as they must, that 

“conflict between presentencing evidence and a providence inquiry requires the 

military judge reopen the providence inquiry[.]”59 But the Government wrongly 

asserts that such a conflict didn’t occur here. 

Once the Government introduced prosecution exhibits indicating Appellant 

spent Halloween night of 2020 rubbing CPT Mike’s back, touching her arms 

and legs, kissing her, and having oral and vaginal sex with her, all before being 

invited into her hotel room after Appellant expressed his desire to have sex 

again, the military judge abused his discretion when he failed to reopen the 

Care inquiry to explain why—after all that—it was a “leap of faith” for Appellant to believe he could also touch CPT Mike’s bicep before they had sex again.

53 Manual for Courts-Martial, United States (2019 ed.), Part IV, ¶ 77c(2)(a) at IV118. 

54 United States v. Johnson, 54 M.J. 67, 69 (C.A.A.F. 2000) (citing United States v. 

Greaves, 40 M.J. 432, 433 (C.M.A. 1994)).

55 R. at 26. 

56 R. at 28. 

57 United States v. Moratalla, 82 M.J. 1, 4 (C.A.A.F. 2021) (citing United States v. 

Price, 76 M.J. 136, 138 (C.A.A.F. 2017)) (emphasis in original). 

58 Id. at 3.

59 Gov’t Brief at 31.
United States v. Moore, NMCCA No. 202300195

Opinion of the Court

11

Absent any explanation, this evidence squarely raises the defense of mistake 

of fact.60 Accordingly, Appellant’s plea to assaulting CPT Mike’s bicep is improvident. 

B. The appropriate remedy for the improvident plea in this case is to 

set aside the findings and sentence and afford Appellant the opportunity to plead anew or proceed to trial.

“[T]he normal remedy for finding a plea improvident is to set aside the finding based upon the improvident plea of guilty and to authorize a rehearing at 

which the accused is permitted to plead anew.”61 More often than not, we will 

affirm the remaining unaffected findings and authorize a rehearing as to the 

improvident plea or the sentence.62

But in cases involving a plea agreement, and depending on the terms of the 

plea agreement, successfully challenging a plea as improvident on appeal can 

have the same effect as if the military judge had not accepted the plea in the 

first place, which is often an express basis for cancellation of the agreement.63

The plea agreement in this case contains a similar provision in the event Appellant failed to plead guilty.64 But it also contains an express provision allowing the Government to withdraw from the plea agreement “if [the] findings are 

set aside because a plea of guilty is held improvident on appellate review.”65

Setting aside the findings and sentence places the parties in exactly the 

position contemplated by Rule for Courts-Martial 705(e)(4), where both parties 

may now withdraw from the plea agreement or elect to proceed under the previous agreement. 

For now, Appellant has evinced his intent to withdraw from the plea agreement by challenging the providence of his pleas to all the charges and specifi60 United States v. Lloyd, 46 M.J. 19, 23 (C.A.A.F. 1997) (“The military judge must 

establish on the record a factual basis for the plea and must remain satisfied of that 

basis all the way through sentencing.”). This Court has a similar responsibility. Id. 

61 United States v. Negron, 60 M.J. 136, 143-44 (C.A.A.F. 2004) (citations omitted). 

62 See, e.g., United States v. Moon, 73 M.J. 382, 388 (C.A.A.F. 2014). 

63 See United States v. Von Bergen, 67 M.J. 290, 294 (C.A.A.F. 2009); United States 

v. Kibler, 2023 CCA LEXIS 468 at *16-17 (Army Ct. Crim. App. Oct. 31, 2023) (unpublished). 

64 App. Ex. I at 5. 

65 App. Ex. I at 1. 
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Opinion of the Court

12

cations and by alleging that his trial defense counsel were ineffective in negotiating the plea agreement in this case,66 which he alleges no reasonable attorney would have done.67

We hold that the conditions allowing the parties to withdraw from the plea 

agreement have been met. And under the facts of this case, we set aside the 

findings and sentence so the Government and Appellant may fully avail themselves of the remedies available to them below, which may include, but are not 

limited to, permitting Appellant to plead anew or proceed to trial.

III. CONCLUSION

After careful consideration of the record and briefs of appellate counsel, the 

finding of guilty as to Charge I and Charge II are SET ASIDE. The sentence 

is SET ASIDE. A rehearing is AUTHORIZED.68

FOR THE COURT:

MARK K. JAMISON

Clerk of Court

66 Our decision in this case does not require the Court to address Appellant’s other

assignments of error, and we express no opinion as to their merit. 

67 Def. Brief at 34. 

68 Articles 59 & 66, UCMJ.