U.S. v. Tollinchi, 54 M.J. 80

Core Criminal Law Subjects: Crimes: Article 120 - Rape and Carnal Knowledge Pre-2019 offenses

1. evidence of rape, specifically the lack of consent, was legally insufficient where: (1) although intoxicated, the victim was able to recall events with “ringing clarity”; (2) the victim was able to manifest lack of consent and did so when appellant attempted to have her commit sodomy upon him; (3) the victim undressed herself in front of appellant; (4) the victim allowed appellant to touch her sexually; (5) the victim allowed appellant to perform sodomy upon her; (6) the victim said nothing when she saw appellant move into position to penetrate her; (7) the victim did nothing to suggest that she did not consent; and (8) even if victim did not actually consent, there was no way for appellant to know that she did not consent

Core Criminal Law Subjects: Crimes: Article 134 -- Indecent Acts with Another Pre-2019 offenses

1. evidence that appellant had sexual intercourse with a woman in the presence of that woman’s boyfriend is sufficient to establish an indecent act

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. Court of Appeals for the Armed forces will not overturn findings of fact by a Court of Criminal Appeals unless they are clearly erroneous or unsupported by the record

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. legal sufficiency is a question of law that is reviewed de novo; the test is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Lesser Included Offenses

1. indecent act is a lesser-included offense of rape where the act of sexual intercourse is in the presence of a third party