United States v. AGUAYO

This opinion is subject to administrative correction before final disposition. Before KORN, MOSLEY, and STAMPFLI, Appellate Military Judges _________________________ UNITED STATES Appellee v. Adrian AGUAYO Chief Aviation Maintenance Administrationman (E-7), U.S. Navy Appellant No. 202500189 _________________________ Decided: 3 September 2026 Appeal from the United States Navy-Marine Corps Trial Judiciary Military Judge: Benjamin B. Garcia Sentence adjudged 10 January 2025 by a special court-martial tried at Fleet Activities Yokosuka, Japan, consisting of officer and enlisted members. Sentence in the Entry of Judgment: reduction to pay grade E-6 and a bad-conduct discharge. For Appellant: Major Thomas A. Short, USMC For Appellee: Captain Jacob R. Carmin, USMC Lieutenant Stephanie N. Fisher, JAGC, USN  United States v. Aguayo, NMCCA No. 202500189 Opinion of the Court Judge STAMPFLI delivered the opinion of the Court, in which Chief Judge KORN and Judge MOSLEY joined. _________________________ This opinion does not serve as binding precedent but may be cited as persuasive authority under NMCCA Rule of Appellate Procedure 30.2. _________________________ STAMPFLI, Judge: Contrary to his pleas, a special court-martial composed of officer and en- listed members convicted Appellant of violating the general order prohibiting fraternization between chief petty officers and junior enlisted personnel and for assault consummated by a battery, in violation of Articles 92 and 128, Uni- form Code of Military Justice (UCMJ).1 The members acquitted Appellant of a separate specification of fraternization and of abusive sexual contact in viola- tion of Articles 92 and 120, UCMJ. Appellant raises one assignment of error (AOE): Whether the evidence is legally and factually sufficient to sustain a conviction for assault consummated by a battery. We find the evidence to be both legally and factually sufficient and affirm. I. BACKGROUND Appellant was assigned to a fighter squadron deployed on USS Ronald Reagan (CVN 76). According to multiple witnesses, he made junior enlisted females assigned to the squadron feel uncomfortable because they perceived he was making sexual advances.2 Appellant was ultimately charged with two specifications of violating Arti- cle 92, UCMJ, for fraternizing with junior enlisted women; one specification of violating Article 120, UCMJ, for touching a junior petty officer’s breast; and in the alternative, one specification of violating Article 128, UCMJ, for the same conduct. These charges involved three different women, and the events at issue spanned a period of six months from March through October 2023. Although 1 10 U.S.C. §§ 892, 928. 2 R. at 588, 600. 2  United States v. Aguayo, NMCCA No. 202500189 Opinion of the Court the military judge denied trial defense counsel’s motion to sever the specifica- tions into separate courts-martial, he trifurcated the presentation of the evi- dence into separate parts regarding each complaining witness and provided spillover instructions to the members following the conclusion of each part.3 Aviation Electrician’s Mate Third Class (AE3) Hotel4 was the first witness, and her testimony formed the bulk of part one of the trial. AE3 Hotel and Ap- pellant were both assigned to the same squadron. AE3 Hotel admitted to drink- ing with Appellant at a bar in the Philippines on her birthday, which led to consensual kissing.5 The members found Appellant guilty of fraternizing with AE3 Hotel,6 which he does not contest. Part two of the trial focused on a liberty incident between Appellant and Aviation Administrationman Third Class (AZ3) Fox, who did not testify. Dur- ing her 2023 patrol, the Ronald Reagan called at Guam, and members of Ap- pellant’s squadron went to a night club, Shamrocks, on March 17. AE2 Golf, a male petty officer in the same squadron, described the night club as crowded, as this was the only Irish pub available to celebrate St. Patrick’s Day in Guam.7 While in the pub, Appellant approached a group of junior female petty officers from his squadron at the bar. AE2 Golf saw Appellant looking at AZ3 Fox’s buttocks and then leaning his shoulders and hips into AZ3 Fox to “grind” with her.8 There was controverted testimony as to whether Appellant and AZ3 Fox actually touched.9 The members found Appellant not guilty of fraternizing with AZ3 Fox.10 Aviation Structural Mechanic Third Class (AM3) Delta was assigned to the same squadron as the others, was among the group of young females that Ap- 3 App. Ex. LXXIV, e.g., R. at 615–16. 4 All names in this opinion, other than those of Appellant, the judges, and counsel, are pseudonyms. 5 R. at 537–41. 6 R. at 722. 7 R. at 581, 593. 8 R. at 588. In this context, to grind means “an action of rotating the hips in an erotic manner (as in a dance).” Merriam-Webster, Grind (n.), https://www.merriam- webster.com/dictionary/grind (last visited Jul. 22, 2026). 9 R. at 594, 599–600. 10 R. at 722. 3  United States v. Aguayo, NMCCA No. 202500189 Opinion of the Court pellant approached at Shamrocks, and testified that Appellant made them un- comfortable.11 She appeared as a witness in both part two of the trial, focusing on AZ3 Fox’s interaction, and in part three, which concerned her own allega- tions. In part two of the trial, regarding the events at Shamrocks, AM3 Delta described Appellant’s attempts to get close to AZ3 Fox, and testified that sub- sequently, the group of young females tried to distance themselves from Ap- pellant, eventually leaving Shamrocks.12 Appellant attempted to follow AM3 Delta to another night club.13 However, during part three of the trial, AM3 Delta testified that earlier that evening, while still at Shamrocks, Appellant “positioned himself behind me with his groin touching my buttocks . . . . ”14 She was impeached on cross-examination regarding her memory and a prior incon- sistent statement that she made to the Naval Criminal Investigative Service (NCIS) about the difference between her lower back and buttocks and whether she could distinguish the groin from a penis or other part of the body.15 The Government did not charge Appellant for the incident at Shamrocks involving AM3 Delta but offered testimony under Military Rule of Evidence (Mil. R. Evid.) 404(b) “for the limited purpose of showing his interest in AM3 [Delta] and the lack of mistake or accident for the . . . charged offense . . .” and it was admitted.16 Part three of the trial focused on an event that occurred in the aviation maintenance spaces aboard the Ronald Reagan later that patrol in June 2023 and forms the basis of Appellant’s AOE. AM3 Delta was alone and completing her Professional Military Knowledge Eligibility Exam (PMK-EE), which is a computer-based test on general naval knowledge that petty officers are re- quired to pass before advancing to the next paygrade.17 AM3 Delta attempted the exam on the last day of the eligibility period, even though internet connec- tions can be difficult and unreliable at sea.18 Her connection to the PMK-EE 11 R. at 599–600. 12 R. at 603–04. 13 R. at 604. 14 R. at 621. 15 R. at 633, 642. 16 R. at 227; R. at 228–34. 17 R. at 617. See also Chief of Naval Operations, Gen. Admin. Msg. 085/18, Profes- sional Military Knowledge Eligibility Exam (4 April 2018) [NAVADMIN 085/18] an- nouncing the PMK-EE program. 18 R. at 617–18, 626. 4  United States v. Aguayo, NMCCA No. 202500189 Opinion of the Court site crashed, causing AM3 Delta great frustration that she would not be able to complete the test or would have to redo her work.19 AM3 Delta responded by raising her “voice and lashing out,”20 yelling, getting physically angry, hitting the keyboard, and screaming at the computer.21 Appellant entered the maintenance space while AM3 Delta was “lashing out” at the computer.22 Appellant came behind AM3 Delta while she “was sit- ting at the desk and wrapped his arm around [AM3 Delta] from behind . . . and grabbed [her] right breast.”23 AM3 Delta was still yelling at the computer, and Appellant “proceeded to put his hand over [her] mouth to quiet” or silence her.24 When he put his hand over her mouth, Appellant said to AM3 Delta, “It’s okay.”25 Appellant held his hand on AM3 Delta’s breast with an open palm for 15 to 25 seconds and held his other hand over her mouth with enough pressure to make her stop talking.26 AM3 Delta testified that she did not want Appellant to touch her in that way, and that she responded by pushing back, getting out of her desk chair, and leaving the space.27 In August, following the June interaction with Appellant in the Ronald Reagan aviation maintenance spaces, AD3 Delta emailed her boyfriend (later husband) saying, something not so great happened the other night. So I was doing a course and the site kept crashing and I was getting visibly an- gry like having to take walks to cool off angry and this chief is in the shop when I come back and [he’s] asking [what’s] wrong and I go off on a rant and start getting angry and loud again and so he proceed to come behind me, hug me, GROPE ME COVER MY MOUTH WITH HIS HAND AND WHISPER ‘SHHH’ and . . . I was in such shock that I just kind started laughing and said I would be back. . . . I am still a little in shock and have been for the past few days and [I’m] sorry [I’m] just now telling you about 19 R. at 617–18, 626. 20 R. at 618. 21 R. at 626–27. 22 R. at 618. 23 R. at 618. 24 R. at 618 25 R. at 619. 26 R. at 620. 27 R. at 620, 627. 5  United States v. Aguayo, NMCCA No. 202500189 Opinion of the Court it, I haven’t been able to tell anyone about it cause [I’m] trying to justify [maybe] it just came off that way to me because I was really tired and frustrated? I don’t know.28 AM3 Delta’s further testimony covered her actions and potential motives following the incident aboard the Ronald Reagan. She testified about why she did not report the June incident right away and her embarrassment or fears about reporting.29 Under cross-examination, she testified that she reported the incident in response to a request from AE3 Hotel and that she obtained expe- dited transfer orders that stationed her closer to her husband.30 II. DISCUSSION A. Appellant’s conviction for assault consummated by a battery is le- gally sufficient. Appellant asserts that the evidence was not legally sufficient to sustain a conviction for assault consummated by a battery. We review such questions de novo.31 1. Standard of Review To determine legal sufficiency, we ask “whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt.”32 In conduct- ing this analysis, we must “draw every reasonable inference from the evidence of record in favor of the prosecution.”33 28 Pros. Ex. 6; R. at 640 (emphasis in original). 29 R. at 628–33. 30 R. at 628–33. 31 United States v. King, 78 M.J. 218, 221 (C.A.A.F. 2019) (citing United States v. Kearns, 73 M.J. 177, 180 (C.A.A.F. 2014)). 32 United States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987) (citing Jackson v. Vir- ginia, 443 U.S. 307, 319 (1979)); United States v. Gutierrez, 73 M.J. 172 (C.A.A.F. 2014). 33 United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citing United States v. Rogers, 54 M.J. 244, 246 (2000); United States v. Blocker, 32 M.J. 281, 284 (C.M.A. 1991)). 6  United States v. Aguayo, NMCCA No. 202500189 Opinion of the Court 2. Analysis a. Applicable Law The members found Appellant guilty of the Additional Charge of assault consummated by a battery, in violation of Article 128, UCMJ.34 As properly instructed by the military judge,35 in order to prevail, the Government had to prove: (1) that Appellant did bodily harm to AM3 Delta; (2) that the bodily harm was done unlawfully; and (3) that the bodily harm was done with force or violence.36 “ ‘Bodily harm’ means an offensive touching of another, however slight.”37 Infliction of bodily harm is unlawful if it is “done without legal justi- fication or excuse and without the lawful consent of the person affected.”38 As we have said previously, “the determination of whether a touching is offensive is an objective one. Evidence showing that a victim perceives a strike as offen- sive may be relevant for the ultimate question, but it is not dispositive.”39 b. The evidence is legally sufficient. Appellant does not dispute that he had physical contact with AM3 Delta when she was lashing out at the computer in the maintenance spaces.40 Rather, Appellant asserts that he had legal justification or excuse for touching her.41 However, we must consider the whole of the evidence in the light most favora- ble to the Government when determining whether any reasonable member could have found the accused guilty.42 In considering the objectively offensive 34 R. at 722. The Additional Charge was sexual-assault-type conduct charged in the alternative to Specification 1 of Charge II, a violation of Article 120 (abusive sexual contact without consent), because it was not a lesser included offense. R. at 103–05; Manual for Courts-Martial, United States (2024 ed.) [MCM], app. 12A, Presidentially- Prescribed Lesser Included Offenses Pursuant to Article 79(b)(2), UCMJ; United States v. Riggins, 75 M.J. 78, 83–85 (C.A.A.F. 2016). 35 R. at 678–79. 36 MCM, pt. IV, para. 77.b.(2) at IV-119. 37 MCM, pt. IV, para. 77.c.(1)(a) at IV-120. 38 MCM, pt. IV, para. 77.c.(2)(a) at IV-120; see also United States v. Mader, 81 M.J. 105, 108 (C.A.A.F. 2021); United States v. Armstrong, 77 M.J. 465, 471 (C.A.A.F. 2018); United States v. Johnson, 54 M.J. 67, 69 (C.A.A.F. 2000). 39 United States v. Kukharu, No. 202300062, 2024 CCA LEXIS 159 at *8 (N-M. Ct. Crim. App. Apr. 29, 2024) (unpublished). 40 Appellant’s Brief at 10. 41 Appellant’s Brief at 10. 42 E.g., United States v. Serjak, 86 M.J. 319, 322 (C.A.A.F. 2026). 7  United States v. Aguayo, NMCCA No. 202500189 Opinion of the Court nature of the physical acts in the maintenance spaces aboard the Ronald Reagan, the members received voluminous evidence throughout the trial that Appellant’s touching AM3 Delta was offensive, sexually motivated, and non- consensual. AM3 Delta testified that Appellant touched her breast for 15 to 25 sec- onds.43 About one month later, AM3 Delta emailed her significant other stating that Appellant had groped her.44 Appellant covered AM3 Delta’s mouth with enough physical force to stop her from talking,45 and a reasonable member could find that neither covering AM3 Delta’s mouth nor holding her breast was a necessary restraint of a Sailor angry about an internet connection. Accordingly, we hold the findings regarding Article 128, UCMJ, to be le- gally sufficient because in reviewing the whole of the evidence in the light most favorable to the Government, a reasonable member could have found Appellant guilty beyond a reasonable doubt. B. Appellant’s conviction for assault consummated by a battery is fac- tually sufficient. 1. Standard of Review We follow United States v. Harvey in analyzing the three key components of Article 66(d)(1)(B), UCMJ, factual sufficiency review.46 They are: (1) an ap- pellant’s specific showing of a deficiency of proof; (2) affording appropriate deference to the fact that the trial court saw and heard the witnesses and other evidence when we weigh the evidence and determine controverted ques- tions of fact; and (3) whether we are “clearly convinced that the finding of guilty was against the weight of the evidence.”47 As explained by our higher court in United States v. Downum, it is no longer appropriate to describe the service courts’ stand- ard of review when performing factual sufficiency review simply as “de novo.” Instead, when stating the standard of review and performing factual sufficiency review, service courts should cite and follow this Court’s guidance in Harvey, 85 M.J. at 130-32, 43 R. at 620. 44 Pros. Ex. 6, R. at 640. 45 R. at 620. 46 85 M.J. 127 (C.A.A.F. 2024). 47 Id. at 127; see also United States v. Csiti, 85 M.J. 414 (C.A.A.F. 2025) (reaf- firming Harvey and the principle that the degree of deference afforded in our fac- tual sufficiency review depends on the nature of the evidence at issue). 8  United States v. Aguayo, NMCCA No. 202500189 Opinion of the Court instead of the Court’s prior guidance in [United States v. Wash- ington, 57 M.J. 394, 399 (C.A.A.F. 2002)].48 A “specific showing of a deficiency of proof” is a “threshold requirement,” which, once that threshold is satisfied, entitles us to consider the full record in assessing “the same finding that [Appellant has] specifically challenged as fac- tually insufficient.”49 Further, the degree of deference constituting “appropri- ate deference to the fact that the trial court saw and heard the witnesses” will depend on the nature of the evidence at issue.50 Specifically, “when the CCA can assess documents, videos, and other objective evidence just as well as the court-martial, the CCA might determine that the appropriate deference is low.”51 2. Analysis To convict Appellant of assault consummated by a battery under Article 128, UCMJ, the Government had to prove the same elements described and defined in paragraph II.A.2., supra. In accordance with Article 66(d)(1)(B), UCMJ, Appellant claims to specifi- cally show a deficiency of proof, namely, that Appellant’s physical actions to- ward AM3 Delta were either not offensive or done with a lawful purpose.52 Here also, Appellant does not dispute that he touched AM3 Delta, or put his arm around her. Instead, he claims he was legally justified to do so in order to get her to settle down.53 He further claims that in his role as a chief petty of- ficer, he had a duty to maintain good order and discipline which provided a legal basis to use physical restraint.54 Appellant’s claims potentially present a mixed question of law and fact, be- cause he argues his actions were done with lawful purpose or excuse, and thus asserts the Government did not meet the second element of Article 128, UCMJ, that bodily harm was done unlawfully. However, Article 66, UCMJ, only re- quires Appellant to “make a request and a specific showing of a deficiency in proof for a particular finding” and does not require us to go on “a mechanical 48 86 M.J. 200, 206 (C.A.A.F. 2025). 49 United States v. Hunt, ___ M.J. ___, No. 25-0257, 2026 CAAF LEXIS 661, at *9 (C.A.A.F. Aug. 6, 2026). 50 Harvey, 85 M.J. at 130; Csiti, 85 M.J. at 420. 51 Harvey, 85 M.J. at 131. 52 Appellant’s Brief at 13–14. 53 Appellant’s Brief at 14. 54 Appellant’s Brief at 14. 9  United States v. Aguayo, NMCCA No. 202500189 Opinion of the Court search for the exact deficiency identified by” Appellant.55 Even when we as- sume that he has met the minimum threshold showing of a specific deficiency of proof and analyze the facts, we are not clearly convinced that the Article 128, UCMJ, verdict was against the weight of the evidence. We give appropriate deference to the members who were able to see and hear the witnesses and assess their credibility in person.56 The court-martial heard ample witness testimony about Appellant’s interest in touching AM3 Delta.57 A reasonable inference from the witness testimony is that Appellant’s interest in touching AM3 Delta was for an unlawful, offensive purpose—that he was sexually attracted to her—and was not because he was upholding the traditional role between a chief petty officer and his Sailors. Given the testi- mony that Appellant held his hand on AM3 Delta’s breast with an open palm for 15 to 25 seconds, we are not clearly convinced that the finding of guilty was against the weight of the evidence. III. CONCLUSION After careful consideration of the record and briefs of appellate counsel, we have determined that the findings and sentence are correct in law and fact and that no error materially prejudicial to Appellant’s substantial rights oc- curred.58 The findings and sentence are AFFIRMED. FOR THE COURT: MARK K. JAMISON Clerk of Court 55 Hunt, ___ M.J. at ___, 2026 CAAF LEXIS 661 at *7–9. 56 Harvey, 85 M.J. at 130. 57 See, e.g., R. at 584, 593, 599–601, 603, 607–08, 611, 622–24. 58 Articles 59 & 66, UCMJ. 10