United States v. MELGOZA

Opinions

Opinion

This opinion is subject to administrative correction before final disposition.

Before

KISOR, GANNON, and FLINTOFT Appellate Military Judges

_________________________

UNITED STATES

Appellee

v.

Heriberto M. MELGOZA

Aviation Ordnanceman Airman (E-2), U.S. Navy Appellant

No. 202500139

_________________________

Decided: 27 August 2026

Appeal from the United States Navy-Marine Corps Trial Judiciary Military Judges:

Kimberly J. Kelly (Arraignment) Adam G. Partridge (Motions and Trial)

Sentence adjudged 19 December 2024 by a general court-martial tried at Naval Air Station Jacksonville, Florida, consisting of officer and enlisted members. Sentence in the Entry of Judgment: reduction to E-1, confinement for two years, forfeiture of all pay and allowances, and a dishonorable discharge.1

For Appellant:

Captain Kyle W. Rodewald, USMC (argued and on brief)

1 Appellant was credited with 25 days of pretrial confinement credit.

Opinion of the Court

For Appellee:

Lieutenant Commander Philip J. Corrigan, JAGC, USN (argued and on brief)

Commander J.T. Cole, JAGC, USN (on brief)

Amicus Curiae:

For United States Navy Victims’ Legal Counsel:

Lieutenant Brian K. Johnson, JAGC, USN Lieutenant Avery J. Smith, JAGC, USN

Judge FLINTOFT delivered the opinion of the Court, in which Senior Judge KISOR and Judge GANNON joined.

_________________________

This opinion does not serve as binding precedent, but may be cited as persuasive authority under NMCCA Rule of Appellate Procedure 30.2.

_________________________

FLINTOFT, Judge:

A general court-martial composed of officer and enlisted members convicted Appellant, contrary to his pleas, of one specification of sexual assault without consent, in violation of Article 120, Uniform Code of Military Justice (UCMJ), and one specification of indecent recording, in violation of Article 120c, UCMJ.2 The members found him not guilty of several other offenses unrelated to the sexual assault and indecent recording.3 Appellant asserts five assignments of error (AOEs):

I. Under Mendoza,4 was evidence for Specification 1 of Charge III legally insufficient to sustain the conviction for sexual assault without consent in violation of Article 120(b)(2)(A), UMCJ, when the Government presented a novel theory of criminal liability at trial that

2 10 U.S.C. §§ 920, 920c.

3 Appellant was acquitted of violating lawful general orders, unlawful entry, as-

sault on a law enforcement officer, and obstructing justice in violation of Articles 92, 129, 128, and 131b, UCMJ, 10 U.S.C. §§ 892, 929, 928, and 931b, respectively.

4 United States v. Mendoza, 85 M.J. 213 (C.A.A.F. 2024).

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Appellant violated a “duty of care” that “consent is informed ?”

II. Under Mendoza, was evidence for Specification 1 of Charge III legally and factually insufficient to sustain the conviction for sexual assault without consent in violation of Article 120(b)(2)(A), UCMJ, when A.C. consented to both the charged sexual acts under the false belief that she was performing sexual acts with someone other than the Appellant?

III. Under Mendoza, did the military judge err by instructing the members on a novel definition of consent, “to be freely given, consent must be informed,” and “capacity ” and competence when A.C.’s capacity and competence were not at issue?

IV. Under Mendoza, did the Government commit prosecutorial misconduct when it argued that Appellant was guilty of sexual assault without consent in violation of Article 120(b)(2)(A), UCMJ, because he violated his “duty of care” to “ensure consent is informed,” by not informing A.C. who he was?

V. Was evidence for the Sole Specification of Charge IV legally and factually insufficient to sustain the conviction for indecent recording under 120(c), UCMJ, when A.C. did not “know that this recording was being taken in the moment,” had no “recollection or awareness ” of the recording, did not identify Appellant in the recording, and the recording was created on A.C.’s personal cellphone?

We resolve AOE III in Appellant’s favor and AOE V against him. Thus, we set aside the conviction for sexual assault and the sentence. This Court’s resolution of AOE III and AOE V moots the remaining issues.

I. BACKGROUND

Aviation Ordnanceman Airman Apprentice (AOAA) A.C., the victim in this case, attended a house party at a rented home hosted by Airman (AN) S.A. While at the party, AOAA A.C. began consuming alcohol. During this time, she

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and AN S.A. flirted and eventually had consensual sex.5 They then left the party to go to a bar with other friends but returned to the house because AOAA A.C. was “feeling sick,” “nauseous,” and “could barely walk.”6 During the ride home, she vomited.7 Once back at the house, AN S.A. assisted AOAA A.C. into the primary bedroom , where she fell asleep.8 AN S.A. later returned to the bedroom to check on her and give her a glass of water. AN S.A. described AOAA A.C. at that time as appearing “still drunk . . . . Still kind of incoherent, kind of coherent.”9 AOAA A.C. fell back asleep.

AN S.A. testified that as he left the room, he locked the interior bedroom door.10 There was also a sliding door leading outside. AN S.A. testified that he believed he would have locked that door as well, but he could not specifically recall doing so.11 AN S.A. then began to break up the party and departed the house to get some food.

Sometime after AN S.A. checked on AOAA A.C., Appellant, whom AOAA A.C. had not previously met,12 entered the bedroom by unknown means. AOAA A.C. testified that someone shook her shoulder to wake her up, but she was not able to process her full surroundings because she was still “groggy and still asleep and drunk.”13 The person asked her for oral sex; AOAA A.C. recalled feeling “confused” and felt a hand “on the top of [her] head,” as he “pushed [her] head towards his penis . . . [with] heavy force.”14 She stated she did not realize it was Appellant asking her for oral sex and instead thought it was AN S.A.15 While she was performing oral sex, AOAA A.C. recalled her eyes were closed

5 R. at 435-36, 549.

6 R. at 437.

7 R. at 438, 531-32.

8 R. at 438-39.

9 R. at 537.

10 R. at 439-40.

11 R. at 539.

12 R. at 431.

13 R. at 441.

14 R. at 442.

15 R. at 441, 446. At some point during oral sex, AOAA A.C. testified that she said,

“No, I don’t want to do this anymore.” Defense impeached this testimony based on her statement to the investigating special agent shortly after the incident indicating she did not say “no” until after the vaginal intercourse.

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and she did not have “an opportunity to get a clear look at his face,” nor did she “know that it was [Appellant] that she was performing oral sex on.”16 Although there was conflicting evidence regarding the details, at some point, Appellant engaged in vaginal intercourse with AOAA A.C. During the sexual intercourse, Appellant used AOAA A.C.’s cell phone to record the vaginal intercourse. AOAA A.C. testified that the recording was done without her permission17 and that the phone was capable of recording without unlocking it.18 According to AOAA A.C., Appellant stopped penetrating her vagina because he was having difficulty maintaining an erection and requested that she perform oral sex again.19 When turning toward Appellant to perform the oral sex, she said to Appellant, “No, I do not want to do this,” and then “looked up and realized it wasn’t [AN S.A.].”20 AOAA A.C. exclaimed, “You’re not [AN S.A.],” pushed him away, and ran out of the bedroom wrapped in a blanket to seek help.21 Appellant also emerged from the bedroom.

Based on these acts, the Government initially charged Appellant with sexual assault by inducing a belief by any artifice, pretense, or concealment that the person is another person under Article 120(b)(1)(C), UCMJ; sexual assault by committing a sexual act upon another person without consent under Article 120(b)(2)(A), UCMJ; and indecent recording under Article 120c, UCMJ. However , prior to trial, the Government withdrew and dismissed the specification alleging sexual assault by inducing a belief by any artifice, pretense, or concealment .22 After both parties had rested, but prior to closing arguments, an off-therecord conference under Rule for Courts-Martial (R.C.M.) 802 was held. During the conference, the military judge and counsel discussed proposed instructions

16 R. at 441, 443; See also R. at 482-83. During cross-examination, AOAA A.C. tes-

tified that she opened her eyes during oral sex and noticed the person she was performing oral sex on was a “light-skinned” male and not dark-skinned like AN S.A., but she did not say anything to Appellant and continued to perform oral sex.

17 R. at 454.

18 R. at 601.

19 R. at 446, 491-92; Pros. Ex. 13.

20 R. at 492.

21 R. at 446-48.

22 Charge Sheet at 3.

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that the military judge summarized in an email.23 Among several other topics, the discussion involved trial counsel’s proposed novel instruction related to the charge of sexual assault without consent: “To be freely given, consent must be informed.”24 The email provides that trial defense counsel objected, arguing this “may shift the burden to defense [to] prove consent was informed.”25 In response, the military judge added the following language: “The government bears the burden of proving consent was uninformed beyond a reasonable doubt.”26 The Defense, in an email response to the military judge’s summary, maintained its objection, asserting that the language was prejudicial as it “unnecessarily complicates the issue of consent and creates a new theory of liability for the Government.”27 Once on the record, the military judge asked both parties if they had any additional objections to add from those in the email summary.28 Neither did.29 The military judge instructed the members that, relating to the offense of sexual assault without consent, “[t]o be freely given, consent must be informed. The government bears the burden of proving consent was uninformed beyond a reasonable doubt.”30 He also provided the standard mistake of fact instruction :

The evidence has raised the issue of mistake of fact in relation to the offense of sexual assault without consent . . . . “Mistake of fact” means that the accused held, as a result of ignorance or mistake, an incorrect belief that the other person consented to the sexual conduct. The ignorance or mistake must have existed in the mind of the accused and must have been reasonable under all the circumstances. To be reasonable, the ignorance or mistake must have been based on information, or lack of it, that would indicate to a reasonable person that the other person consented to the sexual conduct.

23 App. Ex. LXIX at 3-4.

24 App. Ex. XXXIII at 2. Trial counsel relied on United States v. Forbes, 78 M.J. 279

(C.A.A.F. 2019) as a basis for requesting the novel instruction.

25 App. Ex. LXIX at 3.

26 App. Ex. LXIX at 3.

27 App. Ex. LXIX at 2.

28 R. at 1109-10.

29 R. at 1110.

30 R. at 1118; App. Ex. LXXI at 5.

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Additionally, the ignorance or mistake cannot be based on the negligent failure to discover the true facts. “Negligence” is the absence of due care. “Due care” is what a reasonably careful person would do under the same or similar circumstance.31 During closing argument, the Government argued that “informed consent”

includes “knowing who you’re having sex with,” and that Appellant had “a duty of care that is reasonable to ensure that that consent is informed. That it is freely given. It’s what a reasonable, careful person would do under the same or similar circumstances.”32 The Government continued, “So, looking at whether this was informed, this here is far beyond negligence. This was purposeful.”33

II. DISCUSSION

A. Instructional Error.

Appellant contends that the military judge’s novel instruction regarding consent constituted prejudicial error. We agree.

1. Standard of Review We review preserved instructional errors de novo.34 A military judge has a duty to ensure instructions “provide an accurate, complete, and intelligible statement of the law.”35 “We evaluate a military judge’s instructions in the context of the overall message conveyed to the members.”36 “Failure to provide correct and complete instructions to the panel before deliberations begin may amount to a denial of due process.”37 When constitutional errors are involved, an erroneous instruction must be tested for prejudice under the harmless beyond a reasonable doubt standard, which the Government has the burden of proving.38 The relevant inquiry is “whether, beyond

31 App. Ex. LXXI at 6-7; R. at 1119-20.

32 R. at 1142.

33 R. at 1142.

34 United States v. Killion, 75 M.J. 209, 214 (C.A.A.F. 2016).

35 United States v. Behenna, 71 M.J. 228, 232 (C.A.A.F. 2012).

36 United States v. Hills, 75 M.J. 350, 357 (C.A.A.F 2016) (citation modified).

37 Killion, 75 M.J. at 213 (quoting United States v. Wolford, 62 M.J. 418, 419 (C.A.A.F. 2006)).

38 Id. at 214.

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a reasonable doubt, the error did not contribute to the [accused’s] conviction or sentence.”39 2. Discussion a. Appellant preserved this issue.

The Government’s proposed novel instruction regarding the elements of the offense was a contested and important issue. Yet it was argued and addressed during an off-the-record R.C.M. 802 conference and only later briefly acknowledged on the record. This practice is inconsistent with the purpose of R.C.M. 802 conferences, which is “to inform the military judge of anticipated issues and to expeditiously resolve matters on which the parties can agree, not to litigate or decide contested issues.”40 Nevertheless, based on the record we do have, we are persuaded that Appellant preserved his objection to the instruction ultimately given.41 Accordingly , we review the military judge’s instruction de novo.42 b. The instruction violated Appellant’s due process rights.

We hold that the instruction violated Appellant’s due process rights because : (1) it improperly expanded a theory of liability based on “informed consent ” that lacked guardrails to guide counsel and the members and was confusing in relation to other instructions; and (2) it risked allowing the members to convict not on the theory charged—sexual assault without consent—but on a watered-down version of a distinct, uncharged theory—sexual assault by inducing a belief by any artifice, pretense, or concealment.

(1) The members were improperly instructed on “informed consent.”

The military judge instructed, “To be freely given, consent must be informed . The government bears the burden of proving consent was uninformed beyond a reasonable doubt.”43 Exploiting this, trial counsel argued, in effect, that even when there is apparent consent, it is not “freely given” and therefore

39 Hills, 75 M.J. at 357 (quoting United States v Kreutzer, 61 M.J. 293 (C.A.A.F.

2005)).

40 R.C.M. 802, Discussion (emphasis added).

41 The Government does not argue waiver and conceded during oral argument that

this objection was properly preserved. Oral Argument at 26:25, United States v. Melgoza, No. 202500139 (N-M. Ct. Crim. App. Aug. 7, 2026).

42 See Killion, 75 M.J. at 214.

43 R. at 1118; App. Ex. LXXI at 5.

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invalid if the accused failed first to take reasonable and prudent measures to ensure that the consent was “informed.”44 Relying on United States v. Forbes,45 the Government argues that the instruction was correct. We disagree. In Forbes, the United States Court of Appeals for the Armed Forces (CAAF) considered “whether Appellant’s pleas to sexual assault by bodily harm through failing to inform his sexual partners he was [Human Immunodeficiency Virus (HIV)] positive were provident.”46 The CAAF, as the Government notes, affirmed the conviction, explaining that “it is the failure to inform the victims of the HIV-positive status that vitiates meaningful consent and causes the touching to be offensive.”47 “‘Consent’ is defined as ‘a freely given agreement to the conduct at issue by a competent person.’48 To be freely given, consent must be informed.”49 We nonetheless conclude that the concept of “informed consent” articulated in Forbes was misapplied here. That concept has been applied to a narrow category of cases: an accused having intercourse with a partner while knowing— yet withholding from his partner—that he is HIV positive. The instruction in this case allowed it to be tried under a far broader theory: that an accused has an affirmative duty to take reasonable steps to ensure that a partner’s consent is “informed.” The instruction left no guardrails to cabin counsel or the members on what “informed” means and how the members could find that there was consent, but it was uninformed.

Here, there was evidence that Appellant shook AOAA A.C. awake in a sufficiently lit room and verbalized a request for oral sex. Under these circumstances , it is unclear what precise acts by Appellant would have sufficed to meet trial counsel’s theorized duty of care to ensure there was informed consent as to his identity. In contrast to Forbes, where the appellant pleaded guilty and was on notice of what specifically he did that vitiated his victims’ consent—

44 R. at 1142.

45 78 M.J. 279 (C.A.A.F. 2019).

46 Id. at 280.

47 Id. at 281.

48 Id. (quoting Manual for Courts-Martial, United States (MCM), pt. IV, para. 45.a.(g)(8)(A) (citations omitted).

49 Id. (citing to United States v. Gutierrez, 74 M.J. 61, 68 (C.A.A.F. 2015) (explain-

ing in the context of offensive touching that “[w]ithout disclosure of HIV status there cannot be a true consent.”) (citations omitted).

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had intercourse with women while knowing he was HIV-positive and knowing they were not aware of this—there was no such notice here.

The instruction on informed consent was also confusing in relation to the instruction on mistake of fact. On the one hand, the mistake of fact instruction would guide the members that if they concluded that AOAA A.C. did not consent , but Appellant honestly and reasonably believed she did, they must acquit . But how that interplays with the argument based on the novel instruction that Appellant had an affirmative duty to take reasonable steps to ensure informed consent is less than clear to us, let alone non-legally trained members.

In other words, without clarifying the vague instruction on “informed consent ” and the Government’s burden to prove “consent was uninformed beyond a reasonable doubt,” the military judge invited the members to nullify the mistake of fact instruction as it allowed them to focus on AOAA A.C.’s subjective knowledge or uninformed belief that only became known to Appellant following the sexual acts. It also directed focus to whether Appellant had taken affirmative steps to avoid that subjective belief rather than on his state of mind as to whether he held an honest and reasonable mistake of fact prior to or during the sexual activity itself.

Reliance on cases from our superior court addressing non-disclosure of identity is likewise misplaced.50 These cases predate Congress’s creation of a separate offense in cases of mistaken identity, which we discuss below, and are distinguishable as Appellant’s actions do not involve concealment or withholding of his identity.

(2) The instruction created a risk of conviction for a watered-down version of a distinct, uncharged offense.

Although Appellant was charged and ostensibly convicted of sexual assault without consent under Article 120(b)(2)(A), the instruction, coupled with the Government’s closing argument, created an intolerable risk that the members actually convicted Appellant of a watered-down version of a distinct provision under Article 120(b)(1)(C): sexual assault by inducing a belief by any artifice, pretense, or concealment that the person is another person. This conflated two different theories of criminal liability under Article 120, UCMJ, and violated Appellant’s due process rights.51

50 See United States v. Hughes, 48 M.J. 214 (C.A.A.F 1998); United States v. Booker,

25 M.J. 114 (C.M.A. 1987).

51 See Mendoza, 85 M.J. at 217; United States v Moore, 86 M.J. 308 (C.A.A.F. 2026).

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The elements of sexual assault without consent are: (1) That the accused committed a sexual act upon another person; and (2) That the accused did so without the consent of the other person.52 The elements of sexual assault by inducing a belief by any artifice, pretense , or concealment are: (1) that the accused committed a sexual act upon another person; and (2) That the accused did so by inducing a belief by any artifice, pretense, or concealment that the accused was another person.53 These are two distinct provisions, and we must avoid reading them in a way that renders one surplusage of the other.54 Yet, similar to Mendoza, the Government urges a theory where every sexual act committed upon a victim whom an accused induced into believing was another person under subsection (b)(1)(C) would also qualify as a sexual assault under subsection (b)(2)(A) because the victim did not consent.55 And, again, similar to Mendoza, such a surplusage “would be especially problematic because it would allow the Government to circumvent the mens rea requirement that Congress specifically added to the offense of” sexual assault by artifice, pretense, or concealment that the accused was another person.56 Under subsection (b)(1)(C), the Government must prove not only that the victim was mistaken as to the identity of the person committing the sexual act, but that the accused induced this belief by an artifice, pretense, or concealment. But as instructed here as trial counsel argued , the Government needed only to prove that the mistaken identity was the result of a negligent failure by Appellant to ensure informed consent.

The Government was not permitted to charge sexual assault without consent , and then, in effect, prove sexual assault by artifice, pretense, or concealment , while relieving itself of the burden of proving the mens rea of that offense .57

52 MCM, pt. IV, para. 60.b.(2)(d).

53 MCM, pt. IV, para. 60.b.(2)(c).

54 Mendoza, 85 M.J. at 219 (discussing the canon against surplusage).

55 See id. at 220.

56 Id.

57 In fact, the Government argued that “looking at whether this was informed, this

here is far beyond negligence. This was purposeful.” R. at 1142. This allowed the Government to argue what squarely would have fit the elements of subsection (b)(1)(C) without being bound to prove them beyond a reasonable doubt.

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In sum, the novel instruction “muddled,” confused, and compromised the instructions as a whole, thereby implicating fundamental due process concerns .58 Additionally, Appellant did not receive proper notice as to what offense he was being charged with or legal theory he was to be tried in order to provide a proper defense.59 c. The erroneous instruction was not harmless beyond a reasonable doubt.

Because this error implicated Appellant’s due process right, the Government has the burden of proving that it was harmless beyond a reasonable doubt.60 Under the circumstances of this case, we are not convinced that the instructional error was harmless. Although there was evidence in support of a theory of lack of actual consent, this was not a case where there was overwhelming evidence of guilt. In particular, the Defense was able to elicit testimony , and show video evidence, to support its theory that Appellant had an honest and reasonable mistake of fact that AOAA A.C. consented to the sexual acts. Under these circumstances, we cannot know whether the confusing, undefined novel instruction may have “tipped the balance” in the members’ ultimate conclusion.61 Accordingly, we set aside the finding of guilt for Charge III and its sole specification. B. The Evidence is Legally and Factually Sufficient to Sustain Appellant ’s Conviction for Indecent Recording under Article 120c, UCMJ.

Appellant makes several arguments as to why the evidence is legally and factually insufficient to prove his guilt for indecent recording.62 For its part, the Government contends that a rational trier of fact could find all elements of Appellant’s conviction under Article 120c, UCMJ, beyond a reasonable doubt, and affording appropriate deference to the factfinder, that this Court is not clearly convinced that Appellant’s conviction for this charge is against the

58 Hills, 75 M.J. at 357.

59 See Mendoza, 85 M.J. at 219-20; Moore, 86 M.J. 308. While the military judge

did not inform the members they could convict solely on another theory of liability, the generality of the novel instruction without further explanation to the members as to what informed or uninformed consent means and how it should be applied opened the door to the members convicting Appellant on an alternative theory of liability.

60 See generally Killion, 75 M.J. at 213.

61 Hills, 75 M.J. at 358.

62 Appellant’s Brief at 48-52.

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weight of the evidence. We agree with the Government and find Appellant’s arguments to be without merit.

1. Legal sufficiency a. Standard of review for legal sufficiency. Courts of Criminal Appeals “may affirm only such findings of guilty as the Court finds correct in law . . . .”63 applying a de novo review.64 To determine legal sufficiency, we ask whether, “considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt.”65 In conducting this analysis, we must “draw every reasonable inference from the evidence of record in favor of the prosecution.”66 b. Discussion. To convict Appellant of indecent recording, the Government had to prove beyond a reasonable doubt that: (1) Appellant, without legal justification or lawful authorization, knowingly recorded the private area of another person; (2) That said recording was without the other person’s consent; and (3) That said recording was made under circumstances in which the other person had a reasonable expectation of privacy.67 The Government entered sufficient evidence to prove that Appellant, without legal justification or lawful authorization, knowingly recorded AOAA A.C.’s private area without her consent during sexual intercourse under circumstances in which she had a reasonable expectation of privacy. AOAA A.C. testified about the video as follows: (1) it was Appellant having sex with her;68 and

63 10 U.S.C. § 866(d)(1)(A).

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

65 United States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987) (citing Jackson v. Vir-

ginia, 443 U.S. 307, 319 (1979)); see also United States v. Gutierrez, 73 M.J. 172, 175 (C.A.A.F. 2014) (citing United States v. Bennitt, 72 M.J. 266, 268 (C.A.A.F. 2013)).

66 Gutierrez, 74 M.J. at 65 (citation modified).

67 MCM, pt. IV, para. 63.b.(2).

68 Pros. Ex. 13; R. at 451, 490.

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(2) she did not know the recording was being taken,69 did not consent to it,70 and that she expected to have privacy in the bedroom.71 Additionally, while Appellant was not identifiable in the video, it did reflect AOAA A.C.’s buttocks during sexual intercourse with a light-skinned male along with the voice of the person recording it.72 AOAA A.C. was present at the time and place, recalled the circumstances of the sexual intercourse with Appellant , including hearing his voice, and Appellant’s skin cell DNA was discovered on her one-piece body suit.73 Notably, trial defense counsel did not contest that Appellant was the person in the video, arguing during closing argument that it was Appellant’s voice and that the video showed AOAA A.C. consenting to sex with Appellant.74 We find Appellant’s conviction for this offense to be legally sufficient. Under the highly deferential standard for legal sufficiency in which we must draw all inferences in favor of the prosecution, a reasonable finder of fact could have found all elements beyond a reasonable doubt.

69 Pros. Ex. 13 (the video itself reflects AOAA A.C.’s being recorded from behind,

with her head down, and not facing the camera. Appellant stops recording shortly after asking for oral sex).

70 R. at 454. (AOAA A.C. testified that she did not know she was being recorded

and did not, at any time, provide Appellant permission to make the recording).

71 “The term ‘under circumstances in which that other person has a reasonable

expectation of privacy’ means (A) circumstances in which a reasonable person would believe that he or she could disrobe in privacy, without being concerned that an image of a private area of the person was being captured; or (B) circumstances in which a reasonable person would believe that a private area of the person would not be visible to the public.” 10 U.S.C. § 120c(d)(3). After review of the record, this Court agrees with the finder of fact that AOAA A.C. had a reasonable expectation of privacy.

72“The term ‘private area’ means the naked . . . buttocks . . . .” 10 U.S.C. § 120c(d)(2).

73 R. at 642.

74 R. at 1184, 1186, 1197, 1199.

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2. Factual sufficiency a. Standard of review.75 This Court may consider whether a finding of guilty is correct in fact upon request of an appellant who makes a specific showing of a deficiency in proof.76 After an appellant makes such a showing, this Court may weigh the evidence and determine controverted questions of fact, providing appropriate deference to the fact that the trial court saw and heard the witnesses and other evidence .77 If this Court is clearly convinced that the finding of guilty was against the weight of the evidence, we may dismiss, set aside, or modify the findings, or affirm a lesser finding.78 b. Discussion.

Appellant argues the Government failed to prove that: (1) Appellant created the recording; (2) the recording was without AOAA A.C.’s consent; and (3) Appellant did not have a reasonable mistake of fact as to AOAA A.C.’s consent .79 For its part, the Government contends the Appellant does not make any specific showing of a deficiency of proof and even if a predicate showing was made, the evidence as a whole cannot clearly convince the Court that the “weight of the evidence” supports a finding of not guilty. We find that Appellant made a specific showing of a deficiency of proof;80 however, we are not clearly convinced that the verdict is against the weight of the evidence.

We acknowledge and provide high deference to the fact the trial court saw and heard the witnesses.81 We, however, provide lower deference to the members ’ interpretation of videos that we watched and listened to ourselves. For

75 We follow CAAF’s guidance when analyzing factual sufficiency review. See United States v. Harvey, 85 M.J. 127 (C.A.A.F. 2024); United States v. Csiti, 85 M.J. 414 (C.A.A.F. 2025).

76 10 U.S.C. § 866(d)(1)(B).

77 10 U.S.C. § 866(d)(1)(B)(i)(I).

78 10 U.S.C. § 866(d)(1)(B)(iii).

79 Appellant’s Brief at 49. Noting in Appellant’s third deficiency that mistake of

fact as to AOAA A.C.’s consent under this charge was not reasonably raised by the evidence. Thus, we need not consider this particular claim further. See United States v. Hunt, No. 25-0257, 2026 CAAF LEXIS 661, at *7 (C.A.A.F 2026) (“to invoke a factual sufficiency review [an accused must make] a specific, reasonable, nonfrivolous statement of error as to a particular finding.”).

80 Appellant’s Brief at 49.

81 Harvey, 85 MJ at 130-31.

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reasons stated above and below, when weighing the evidence and providing appropriate deference, we are not clearly convinced the finding is against the weight of the evidence.

Specifically, in addition to that provided supra, there is sufficient evidence that it was Appellant who made the recording on AOAA A.C.’s phone and that the recording was made without her consent. Not only did AOAA A.C. testify that it was Appellant who recorded her without her consent, but there was also no indication from the video recording that she had any knowledge or awareness that she was being recorded. In fact, when Appellant informed her that he was having difficulty maintaining an erection and asked that she perform oral sex again, the video stopped before she turned to face him.

In summary, the recording captured a fairly lit room with visible background details.82 AOAA A.C. was able to identify herself in the video recording by her tattoo, and identified Appellant as the person who was making the recording while engaging in vaginal sex with her.83 She testified that she had no “recollection or awareness whatsoever that that recording was made,” and “was confused on why it was even on [her] phone.”84 There was also no indication from the recording that AOAA A.C. had an awareness the recording was taking place. Accordingly, when weighing the evidence and providing appropriate deference to the fact that the members saw and heard the evidence, we are not clearly convinced the finding of guilt to this Charge was against the weight of the evidence.

82 Pros. Ex. 13.

83 R. at 451, 454, 490-91.

84 R. at 451.

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III. CONCLUSION

After careful consideration of the record and briefs of counsel and the excellent oral argument presented by counsel on 7 August 2026, the finding of guilt as to the sole Specification of Charge III is SET ASIDE. The finding of guilt as to the sole Specification of Charge IV is AFFIRMED. The sentence is SET ASIDE. A rehearing is AUTHORIZED.85

FOR THE COURT:

MARK K. JAMISON Clerk of Court

85 Articles 59 & 66, UCMJ.

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