United States v. Ignacio , 71 M.J. 125 ( 2012 )

UNITED STATES, Appellee
v.
Michael IGNACIO, Cryptologic Technician (Interpretive)
First Class (E-6), U.S. Navy,
Appellant
No. 12-0202
Crim. App. No. 201100062
United States Court of Appeals for the Armed Forces
Argued April 23, 2012
Decided May 10, 2012
PER CURIAM
Counsel
For Appellant: Captain Michael D. Berry, USMC (argued).
For Appellee: Lieutenant Benjamin J. Voce-Gardner, USN
(argued); Colonel Kurt J. Brubaker, USMC, and Brian K. Keller,
Esq. (on brief).
Military Judge: Donald C. King
This opinion is subject to revision before final publication.
United States v. Ignacio, No. 12-0202/NA
PER CURIAM:
Court members sitting as a general court-martial convicted
Cryptologic Technician First Class Michael Ignacio of abusive
sexual contact in violation of Article 120(h), Uniform Code of
Military Justice, 10 U.S.C. § 920(h). The convening authority
approved the adjudged sentence of a bad-conduct discharge, three
years of confinement, forfeiture of all pay and allowances, and
reduction to E-1. The United States Navy-Marine Corps Court of
Criminal Appeals affirmed the findings and sentence. United
States v. Ignacio, No. NMCCA 20110062, slip op. at 2 (N-M. Ct.
Crim. App. Nov. 8, 2011).
When discussing the proposed instructions on evidence of
consent, the military judge explained on the record why he would
instruct the panel pursuant to the Military Judges’ Benchbook1
rather than the statutory language. See United States v.
Prather, 69 M.J. 338 (C.A.A.F. 2011); United States v. Medina,
69 M.J. 462, 465 (C.A.A.F. 2011). The military judge’s
instructions included the statement that “[e]vidence of consent
is relevant to whether the prosecution has proven the elements
of the offense beyond a reasonable doubt” and that “[t]he
prosecution has the burden to prove beyond a reasonable doubt
that consent did not exist.” We granted review of this case to
1
Dep’t of the Army, Pam. 27-9, Legal Services, Military Judges’
Benchbook (2010).
2
United States v. Ignacio, No. 12-0202/NA
determine if the military judge erred in so instructing the
panel.
“Whether a panel was properly instructed is a question of
law reviewed de novo.” United States v. Ober, 66 M.J. 393, 405
(C.A.A.F. 2008). “If [evidence of consent] is presented, the
judge must ensure that the factfinder is instructed to consider
all of the evidence, including the evidence raised by the
defendant that is pertinent to the affirmative defense, when
determining whether the prosecution established guilt beyond a
reasonable doubt.” United States v. Neal, 68 M.J. 289, 304
(C.A.A.F. 2010). Here the instructions correctly conveyed the
Government’s burden to the members. The decision of the United
States Navy-Marine Corps Court of Criminal Appeals is therefore
affirmed.
3