United States v. Bannister, 201600315

Appellant (best man) and victim JCH socialized and drank at multiple wedding-related events; earlier consensual kissing and sexual contact the night before.
After heavy drinking, JCH was observed extremely intoxicated, falling, vomiting, and acting incoherently; appellant and another servicemember helped carry her to a hotel room.
JCH has limited memory of subsequent events; she testified appellant digitally penetrated her, placed his penis in her mouth, and attempted vaginal/anal intercourse while she was unable to consent.
Appellant sent texts the next day admitting he knew JCH was "hammered," describing digital penetration and worrying about forensic evidence; he asked her not to report him.
Court-martial convicted appellant of one sexual assault and two abusive sexual-contact specifications; members were told two specifications were the same and the judge merged them for sentencing.
On appeal, court affirmed convictions as legally and factually sufficient but found the two abusive-sexual-contact specifications unreasonably multiplied and dismissed one specification with prejudice; no sentence reassessment was required.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Unreasonable multiplication of charges	Prosecution maintained separate specifications were proper	Appellant argued duplicative charging of substantially one transaction	Court: convictions represented a single criminal act; one specification dismissed for unreasonable multiplication
Legal sufficiency: was JCH incapable of consenting due to intoxication?	Prosecution: evidence (JCH testimony, witnesses, texts) showed incapacity and appellant knew or should have known	Appellant: challenged sufficiency of proof of incapacity	Court: evidence sufficient; a reasonable factfinder could find incapacity beyond a reasonable doubt
Factual sufficiency / mistake of fact as to consent	Prosecution: element requires knowledge that victim was incapable, which displaces mistake-of-fact claim	Appellant: asserted he reasonably believed JCH consented	Court: evidence (observations, appellant’s admissions) showed any belief was unreasonable; factual sufficiency affirmed
Reassessment of sentence after dismissal	N/A (prosecution sought affirmation)	Appellant could argue sentence affected by dismissed spec	Court: members were instructed to treat the two specs as one for sentencing; dismissal did not affect sentence—no reassessment needed

United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001) (factors for determining unreasonable multiplication of charges)
United States v. Campbell, 71 M.J. 19 (C.A.A.F. 2012) (weighing Quiroz factors; one or more factors may be compelling)
United States v. Thomas, 74 M.J. 563 (N-M. Ct. Crim. App. 2014) (military judge must consolidate or dismiss when members find guilt on duplicative specs)
United States v. Elespuru, 73 M.J. 326 (C.A.A.F. 2014) (consolidation/dismissal requirement when findings duplicate a single act)
United States v. Teague, 75 M.J. 636 (A. Ct. Crim. App. 2016) (Article 120(b)(3) requires government to disprove mistake of fact on incapacity)
United States v. Solis, 75 M.J. 759 (N-M. Ct. Crim. App. 2016) (definition of "incapable of consenting" under Article 120)