Last week the AFCCA decided United States v. Escobar, a sexual assault case involving a factual sufficiency claim.
Appellant was convicted of sexual assaulting a 19-year-old Airman First Class (“A1C”) PM. On appeal, the AFCCA considered whether (1) the conviction was legally and factually sufficient and (2) the military judge abused his discretion by admitting a past sexual assault allegation into evidence. In a unanimous opinion, the AFCCA affirmed the conviction.
I. Appellant’s Conviction Was Legally and Factually Sufficient
The court-martial found that Appellant engaged in oral sex with A1C PM without his consent. Appellant argued that A1C PM was not too intoxicated to consent and, even if he were, Appellant made a mistake of fact. But AFCCA found Appellant’s conviction legally and factually sufficient because (1) A1C PM’s testimony clearly established a lack of consent and (2) A1C PM’s Breathalyzer test proved that he could not consent.
II. Admitting A Past Sexual Assault Allegation Against Appellant Was Not an Abuse of Discretion
In 2011, BK, an enlisted airman, filed a restricted report of sexual assault against Appellant. BK agreed to testify against A1C PM at trial. Appellant argued that the military judge erroneously admitted this testimony under M.R.E. 413 because (1) BK’s testimony was irrelevant to the consent issue and (2) in any event, the testimony was more prejudicial than probative. However, the AFCCA disagreed because (1) the evidence showed that Appellant had a propensity to commit sexual assault on non-consenting men in similar ways and (2) the military judge did not abuse his discretion in finding that the evidence was not prejudicial enough to be excluded.
Escobar Opinion Link
 Judge Ramírez authored the majority opinion, which was joined by Judges J. Johnson and Posch.
 A1C PM testified that was so intoxicated that he experienced gaps in his memory and that he left Appellant’s house at about 2300 hours in an effort to get away.
 On the night that BK was allegedly sexually assaulted, he called a Sexual Assault Response Coordinator who swabbed his penis for Appellant’s DNA. The Government’s expert showed that the DNA matched Appellant’s.
 The Court emphasized that the facts from A1C PM and BK’s sexual assault allegations were very similar.
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