United States v. Vera, 201600163

Appellant convicted at a general court-martial of two specifications of sexual assault (Article 120, UCMJ); convictions consolidated into one specification for findings and sentence.
Incident: social gathering with heavy drinking; BK (20, underage at the time) became highly intoxicated and was moved to a spare room and put on an air mattress.
Mr. and Mrs. S later found the appellant on top of BK; Mrs. S observed the appellant’s penis penetrating BK’s vulva; BK was unresponsive and remained ‘‘flat on her back’’ during the intervention.
Appellant claimed a consensual threesome with BK and Sgt C and denied seeing BK incapacitated; BK had no memory of events after the second drinking game and reported the incident six months later.
Military judge instructed the panel with the contested ‘‘firmly convinced’’ formulation; appellant also challenged legal and factual sufficiency.
Convening authority approved six months’ confinement and other punishments; appellate court affirmed both findings and sentence.

Issue	Appellant's Argument	Government's Argument	Held
Whether the military judge’s use of the instruction “if...you are firmly convinced” was erroneous	Instruction misstated standard and prejudiced appellant	Instruction is permissible; CAAF recently upheld identical language in McClour	Resolved against appellant — no reversible error under controlling CAAF precedent
Whether the findings were legally and factually sufficient	Testimony conflicted, no physical corroboration of penetration, unreliable memories	Mrs. S directly observed penetration; Mr. and Mrs. S credibly testified BK was highly intoxicated and incapable of consenting	Findings affirmed — evidence, viewed favorably to the prosecution, proved elements beyond a reasonable doubt; appellate court also convinced after weighing evidence

United States v. Elespuru, 73 M.J. 326 (C.A.A.F. 2014) (authority for consolidating contingency specifications)
United States v. Thomas, 74 M.J. 563 (N-M. Ct. Crim. App. 2014) (treatment of consolidated findings and sentencing)
United States v. McClour, 76 M.J. 23 (C.A.A.F. 2017) (upholding the challenged ‘‘firmly convinced’’ instruction)
United States v. Washington, 57 M.J. 394 (C.A.A.F. 2002) (standard of review for legal and factual sufficiency)
United States v. Day, 66 M.J. 172 (C.A.A.F. 2008) (legal sufficiency test)
United States v. Turner, 25 M.J. 324 (C.M.A. 1987) (legal sufficiency framework)
United States v. Barner, 56 M.J. 131 (C.A.A.F. 2001) (drawing reasonable inferences for legal sufficiency)
United States v. Rankin, 63 M.J. 552 (N-M. Ct. Crim. App. 2006) (factual sufficiency standard and ‘‘not free from conflict’’ language)
United States v. Pease, 75 M.J. 180 (C.A.A.F. 2016) (definition of incapable of consenting)
United States v. Lepresti, 52 M.J. 644 (N-M. Ct. Crim. App. 1999) (factfinder may credit parts of testimony and discredit others)